Full Volume 19 - Federal Maritime Commission

586
FEDERALMARITIME COMMISSION
law in
question This Commission has instituted investigations on far less
provocation than 6
that which exists in the present case
agencies are relieved of their obligation to enforce the particular
It is true that administrative or other proceedings have been discontin
ued when the activities under investigation have terminated and the cases
have been deemed moot but there are many cases holding that such
proceedings need not be terminated if the type of activity involved is
likely to recur if necessary principles or guidelines would result if righta
ofoutside parties are involved if much time and expense in litigation has
already been consumed or for some other valid purpose See e g
Investigation ofRates in the Hong Kong United States Atlantic and Gulf
Trades 11 F M C 168 173 1967 Docket No 7557 Matson Naviga
tion Company Proposed Rate Increase etc Order on Appeal January
14 1977
pp
68 Southern Pacific Terminal Co v IC C 219 U S
498 516 1910 Walling v Haile Gold Mines Inc 136 F 2d 102 105
4th Cir 1943 Walling v Mutual Wholesale Food Supply Co 141 F
2d 331 334335 8th Cir 1944 Boise City Irr Land Co v Clark 131
Fed 415 9th Cir 1904 Rates on U S Government Cargoes 11
F M C 263 279 1967
The instant case provides an example of an issue that could very likely
recur with enormously significant consequences namely that concerning
the validity of the Act of State and related doctrines which if carried to
their logical conclusions would enable regulated carriers to obtain
licenses from foreign governments authorizing them to ignore the require
ments of the Shipping Act AlthoughIam convinced that these doctrines
have no merit in the regulatory context and have so ruled see Requests
in the Nature of Motions for Summary Judgment and Motions to Dismiss
Denied cited above pp 42 29 Leave to Appeal to Commission Granted
May 5 1976 respondents had vigorously argued that the Commission
had been in effect ousted from jurisdiction or at least consideration of
their past practices because of the participation of the Australian Meat
Board Because of subsequent negotiations my rulings in this matter
never reached the Commission on appeal Any regulated foreign carrier
therefore may resurrect the argument in case it wishes to prevent the
Commission from questioning its activities claiming that its government
has ordered the action in question This is so eventhough respondents
have since filed agreements for approval including participation ofthe
Meat Board acurious development considering their earlier position that
the Meat Board s participation and ukases removed all ofthese matters
from the Commission s consideration The status of Act of State and
related defenses is therefore unsettled Consequently one could argue that
6 See tho eli cuulon below eonccrnina an inv ltilIon lnitla dby die Commission in Docket No 7 2 fonowlna
dilmiasalofthocompfaint in Docket No 16theJice case cited abovt
19 F M c