Full Volume 19 - Federal Maritime Commission

518 FEDERAL MARITIME COMMISSION
intention as to how through container movements were to be hllI1d1ed in
the 1970 s that intention was not disclosed in 1916 or 1 1 What is clear
is that the Shipping Act was conceived as a comprehensive regulatory
system for oceanborne foreign commerce Section 1 of the Act included
the entire realm of ocean shipping which then existed with the specific
exception of contract carriers ferryboats and ocean tramps The appear
ance of new technology alone is not a sufficient reason for limiting an
agency s jurisdiction when the agency was otherwise intended to possess
a broad and unified authority 21
The 1916 legislation limited the Commission s in personam jurisdiction
in only three respects 1 there must be a common carrier by water
which is not a tramp or ferryboat 2 the carrier must transport cargo
between the United States and a foreign country and 3 the Commission
may not exercise concurrent power or jurisdiction over any matter
within the power or jurisdiction of the ICC 22 These limiting factors
have not been altered in the intervening 60 years Our authority ebbs and
flows as Congress modifies the powers and jurisdiction of the ICC and
we conclude that our foreign commerce jurisdiction is not restricted to
ocean carriers operating vessels which physically call at United States
ports A common carrier engaged in the through transportation of goods
between the United States and a foreign country by water is subject
to section 1 Transshipment Agreement Indonesia United States 10
F M C 183 191 1966
This is not to say the Shipping Act permits the Commission to directly
reach the port to port rate of an ocean carrieroperating only between two
foreign countries 23 This we obviously cannot do Neither do we envision
section 1 as encompassing joint rate through route international transpor
tation offered by ICC regulated carriers via foreign ports in conjunction
with ean oc carriers are themselves subject to 24
the Shipping Act
However we conclude that ACE is performing all the functions of a
nonvesse1 operating common carrier NYO in the foreign commerce of
the United States NYO s have been consistently recognized as section 1
carriers since at least 1952 Bernhard Ulmann Co Inc v Puerto Rico
11 In United Stales v Southwestern Cable Co 392 U S 157 1968 the Supreme CQlIrt affirmed the Federal
Communication Commission siurisdiction overcable television transmissions and stated at 172
Nothlna in the Janauage histOry or purpose of the Communications Act limits the FCC s authority to
those activities Bnd forms of communications thatarespeclftcally described by the Act s other provisions
Certainly Congress could not in 1934 have foreseen the development of community television systems
22 The latter restriction Shippina Act section 33 was added to obviate a coofUctof jurisdiction if in some
unforeseen manner any substantive provision of this biD inadvertently overlaps acorrcspondlnll provision of the
Interstate Commerce Act H R Report No 659 Creating AShipping Board
Etc 64th Cona 1st Sess at 34
1916 Sen Report No 689 CreatingA Shipping Board Etc 64th 1st 8ess at 14 1916
H American Cona
aoods exported to Canada on one billof ladina may be shipped elsewhere under asecond blllof ladioa
without directly involvina this Commission s jurisdiction However extraterritorial aspects of section 15 agreements
or other anticompetitive actions by section 1 carriers violative of section8 16 or 17 may be within the ICOpe of the
8hippina Act See Transpacific Freight Conference ofJapan v Federal Maritime Commission 314 F 2d 9Z8 9th Clr
1963 Paclffc Seafarers Inc v PFEL
IRe 404 F 2d 804 n 16 D C Clr 1968 Imposition of Surcharge by the
Far East Conference at Searsport Maine 9 F M C 1291966
24 Although no 8uch ICC tariffs appear to be In effect at present theICC has reversed its long standina prohibition
against joint ratclthrouih route international tariffs to nonadjacent countries ExParte 261 337IC C 625632 1970
19 F M C