Full Volume 19 - Federal Maritime Commission

CONSOLIDATED EXPRESS INC v SEA LAND 723
As to the qustion of dismissing the complaint Ibelieve there can be
little disagreement As I explained in my ruling cited above this
complaint case is now almost four years old and there are no signs
whatsoever that Conex will proceed to hearing Indeed Conex indicates
that it has chosen to seek whatever relief to which it believes it is entitled
in another forum As I noted in my ruling furthermore the practices of
which Conex complained were ordered to be terminated long ago
September 18 1973 and whatever viable issues which might have
remained in the case were removed by Conex when it amended its
complaint on September 9 1976 to delete the claim for reparation The
case therefore is essentially academic and at best would lead to a
declaratory order type decision establishing principles and guidelines
governing the respective rights and duties of respondents under the
Shipping and Intercoastal Acts The need for even this type of decision is
questionable however in view of the many decisions favorable to Conex
already rendered in the courts another agency another proceeding before
this Commission and in this proceeding as well 2
Failure to prosecute is or course recignized grounds for dismissal ofa
complaint See Wright Miller Federal Practice and Procedure Civil
2370 p 203 Federal Rule 41b 28 U S C A Link v Wabash Railroad
Co 370 U S 626 1962 This principle has been followed by the
Commission See ef The Tagit Co v Luckenbach Steamship Company
Inc et al 1 U S S B B 519 1935 Isbrandtsen Co Inc 3 F M B 543
1941 Moreover the Commission has expressed concernoverthe amount
oftime consumedin its proceedings stating with respect to complaint cases
particularly that The Commission has a legitimate interest in seeing
proceedings pursued to a conclusion and not languish on its docket for
years while parties negotiate at leasure Docket No 7411 Rules of
Practice and Procedure 14 SSR 923 924 1974 For similar sentiments
expressed by the Commission see Docket No 7536 Miscellaneous
Amendments 41 Federal Register 20585 May 19 1976 and Docket No
7411 cited above Notice of Proposed Rulemaking 39 Federal Register
11117 March 25 1974 Both for reasons of mootness and want of
prosecution then this complaint should be and hereby is dismissed This
does not entirely dispose of the matter since Seatrain requests dismissal
with prejudice and findings on the merits As discussed below however I
find Seatrain s requests unwarranted for several reasons
As far as the issue of reparation is concerned Conex has itself already
succeeded in achieving a dismissal with prejudice This occurred when
Conex withdrew that portion of its complaint dealing with that issue
Since the practices of which Conex complained terminated as of
September 1973 Conex is now precluded from filing a new complaint
because of the two year period of limitation prescribed by section 22 of
I This was apparently done because Conex has elected to seek damBBes in an antitrust action in the courts See
Carnation Company v Pacific Westbound Conference et al 383 U S 213 224 1966
2 For arecitation of allof these casesand decisions see my previous ruling cited above pp
4 5
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