denied to private persons and confined only to the United States. But the Act specifically provides that
' * * * nothing contained in sections 12, 13, 14-21, 22-27 of this title shall be construed to entitle any person, firm, corporation, or association, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of chapters 1 and 8 of Title 49, in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commission.'
Seatrain contends that as in the decision of the Supreme Court in the case of State of Georgia v. Pennsylvania R. Co., supra, it is seeking only injunctive relief against the combination of which it complains and that this is not 'in respect of any matter subject to the regulations, jurisdiction or other supervision of the Interstate Commerce Commission.' Surely Seatrain cannot maintain that it merely seeks to remove a combination and conspiracy designed to influence each railroad to deny access to its cars to Seatrain without more and that its attack upon Car Service Rule 4 is only to the extent that it has been used as a means of such a combination or conspiracy. Seatrain's position must be that no railroad has the right to deny to it such access if it permits the use of its cars by railroads. I cannot agree that any distinction arises between the obstacle Seatrain faces in the proviso of section 16 of the Clayton Act and the barrier with which it is confronted by the doctrine of primary jurisdiction. Under the considerations heretofore expressed not only has the Interstate Commerce Commission jurisdiction to grant it relief from its alleged complaints but that relief cannot be afforded except as the Commission finds that it is justified and if so under what terms and conditions it is to be regulated and administered.
When the Supreme Court in State of Georgia v. Pennsylvania R. Co., supra, distinguished that case from the case of Central Transfer Co. v. Terminal Ry. Association, 1933, 288 U.S. 469, 53 S. Ct. 444, 77 L. Ed. 899 it did not aid Seatrain over the hurdle of the proviso in section 16 of the Clayton Act for Seatrain is not in the position of the State of Georgia. The Court in the Georgia case also adhered to its decision in Terminal Warehouse v. Pennsylvania R. Co., 297 U.S. 500, 56 S. Ct. 546, 80 L. Ed. 827, when it said:
'If a sufferer from the discriminatory acts of carriers by rail or by water may sue for an injunction under the Clayton Act without resort in the first instance to the regulatory commission, the unity of the system of regulation breaks down beyond repair.' 297 U.S. at page 513, 56 S. Ct. at page 551.
Unlike Georgia, Seatrain is not faced with only an agreement or combination outside the jurisdiction of the Commission. In Seatrain's case the agreements which it claims offend it do so in only one way, that is, excluding it from their scope. The right to be included in those arrangements and the conditions surrounding such inclusion is a subject within 'the regulation, jurisdiction or other supervision of the Commission.'
Nor is the decision of this court in the case of Slick Airways, Inc., v. American Airlines, Inc., D.C., 107 F.Supp. 199, opinion on rehearing, filed August 18, 1952 inconsistent with the position assumed in this case. There the regulatory statute was the Civil Aeronautics Act under which the Civil Aeronautics Board was without power to provide remedial relief for past injuries resulting to a victim of a conspiracy. In that case the conspiratorial acts and the combination which were akin to those described in State of Georgia v. Pennsylvania R. Co., supra, were held to be within the jurisdiction of the court.
The subsidiary charges made by Seatrain as to unfair competitive practices upon the part of the defendants are incidental to the main allegations of the complaint that the defendants have conspired to deny to Seatrain interchange and use of freight cars owned by railroads. They must follow the major charge as being within the jurisdiction of the Commission.
Neither can this court maintain jurisdiction over the suit in so far as it claims treble damages from the primary defendants under the holding herein that the complaint charges acts cognizable under the primary jurisdiction of the Commission which are remediable under its reparation power. Keogh v. Chicago & N.W. Ry., 1922, 260 U.S. 156, 43 S. Ct. 47, 67 L. Ed. 183, Terminal Warehouse Co. v. Pennsylvania R. Co., 1936, 297 U.S. 500, 56 S. Ct. 546, 80 L. Ed. 827; State of Georgia v. Pennsylvania R. Co., 1945, 324 U.S. 439, 65 S. Ct. 716, 89 L. Ed. 1051.
The heart of the controversy raised here revolves around the question of whether Seatrain shall have access to the freight cars of the railroads. A number of side issues have been introduced into the argument which are moot questions and help but little toward a solution of the problem. For instance, Pennsylvania Railroad Company, one of the primary defendants, insists that it is not a through route carrier with Seatrain although such a status was ordered for it by the Commission. This, however, was when Seatrain's Port of New York Terminal was at Hoboken. Since Seatrain substituted Edgewater for Hoboken in 1947 Pennsylvania considers itself not bound by an order designating Hoboken as a terminal but certainly the status of Pennsylvania as a through route carrier as it might have been affected by the substitution of Edgewater for Hoboken was a matter for definitive action by the Commission. Again, it is argued that in 1942 when the vessels of Seatrain were requisitioned by the War Shipping Administration the Commission itself recognized its authority to deal with the question of interchange between rail and water carriers unrestrictedly as to through routes. On May 22, 1942, the Commission issued its Service Order No. 75 in which it suspended Car Service Rule 4 in so far as it applied to the delivery of railroad cars to water carriers controlled or operated by or for the account of the War Shipping Administration. Shortly after the close of hostilities in August of 1945, the order was vacated and Rule 4 was restored. Seatrain contends that it was purely an exercise of emergency power under Section 1(15) of the Act and not evidence that the Commission had changed its 'original limited view of its authority' as urged by the defendants. Seatrain's theory of what was behind the Commission's action is probably more accurate but the speculation is fruitless in resolving the vital issue in the case. Many other such 'side' issues are explored by the parties but analysis and recital of them here would add nothing to this decision.
It is indeed regrettable that Seatrain should have been exposed to such time consuming procedures in airing its problems administratively and in the courts. Concededly, they involve intricate and delicate mechanisms functioning in a highly complicated area of industry and commerce. Perhaps the circumstances attendant upon the innovation of transportation of loaded freight cars in the manner of the Seatrain system and the interruption of the war years permitted no greater progress to the solution of the problems involved.
However, it would now appear that although some of the defendant railroads have for many years resisted the efforts of Seatrain to gain access to freight cars and have gainsaid the power of the Interstate Commerce Commission to direct it, certain of them including the primary defendants in this case, and others, filed a complaint with the Commission, on March 26, 1952, entitled Alabama Great Southern Railroad Company v. Seatrain Lines, Inc., Docket No. 31014. In it they state that they seek
' * * * a complete and authoritative determination of all of the problems involving Seatrain's relationship to the national transportation system, which would establish under the Commission's supervision a stable and proper relationship.
'The complainant railroads have accordingly concluded that the time has come when there ought to be a definitive and over-all solution of these many interrelated problems. It is insufficient, for a long-term solution, merely to establish that the court has neither jurisdiction nor authority to contrive this solution, nor should the railroads continue to await the piecemeal solution of the problems by this Commission in isolated controversies. Indeed, it is in the public interest that there be a comprehensive examination or reexamination of all the difficult issues between Seatrain and the railroads. It is in the interest of all that these problems receive authoritative over-all solution. Both Seatrain and the railroads have an obligation, to the public and to this Commission, to obtain resolution of these many issues and thus terminate what would otherwise be an unending controversy. In recognition of that responsibility, the complainant railroads file this comprehensive complaint.'
All of the railroads which have or might have through routes with Seatrain, or which might own cars that might be interchanged with Seatrain, are made formal defendants in this proceeding. There would appear to be no reason why the allegations of Seatrain, as set forth in the complaint in this suit, may not be projected before the Commission in the course of its hearing and investigation of the above petition pending before it.
Naturally Seatrain is suspicious of this move upon the part of the railroads and objects that many of the matters proposed by the petition have already been litigated before the Commission and that the petition has been filed in the hope of gaining further delay. It is a fact that heretofore fragmentary actions have been instituted before the Commission but with the interjection by Seatrain of the issues raised in this suit the proposed action should afford a complete review of them and the prescription of such terms and practices as may be determined to be just to Seatrain, the railroads and the public.
In this view there appears to be no utility in holding the complaint in court and staying proceedings thereon as in General American Tank Corp. v. El Dorado Terminal Co., 1940, 308 U.S. 422, 60 S. Ct. 325, 84 L. Ed. 361; S.S.W., Inc., v. Air Transport Ass'n of America, D.C. Cir., 191 F.2d 658, and Apgar Travel Agency, Inc., v. International Air Transport Ass'n, D.C.S.D.N.Y., 107 F.Supp. 706. Rather the course here is dictated by Far Eastern Conference v. United States, 1952, 342 U.S. 570, 576-577, 72 S. Ct. 492, 495, where the Court said:
'Having concluded that initial submission to the Federal Maritime Board is required, we may either order the case retained on the District Court docket pending the Board's action, General American Tank Corp. v. El Dorado Terminal Co., 308 U.S. 422, 432-433, 60 S. Ct. 325, 331, 84 L. Ed. 361; El Dorado Oil Works v. United States, 328 U.S. 12, 17, 66 S. Ct. 843, 846, 90 L. Ed. 1053; see United States v. Interstate Commerce Commission, supra, 337 U.S. (426) at page 465, note 12, 69 S. Ct. 1430 (93L. Ed. 1451), or order dismissal of the proceeding brought in the District Court. As distinguished from the situation presented by the first El Dorado case, supra, which was a contract action raising only incidentally a question proper for initial administrative decision, the present case involves questions within the general scope of the Maritime Board's jurisdiction. Shipping Act of 1916, Secs. 14, 15, 39 Stat. 728, 733, 46 U.S.C. §§ 812, 814, 46 U.S.C.A. §§ 812, 814. An order of the Board will be subject to review by a United States Court of Appeals, with opportunity for further review in this Court on writ of certiorari. Pub.L. No. 901, 81st Cong., 2d Sess, Secs. 2, 10, 64 Stat. 1129, 1132. If the Board's order is favorable to the United States, it can be enforced by process of the District Court on the Attorney General's application. 39 Stat. 728, 737, 46 U.S.C. §§ 828, 46 U.S.C.A. §§ 828. We believe that no purpose will here be served to hold the present action in abeyance in the District Court while the proceeding before the Board and subsequent judicial review or enforcement of its order are being pursued. A similar suit is easily initiated later, if appropriate. Business-like procedure counsels that the Government's complaint should now be dismissed, as was the complaint in United States Navigation Co. v. Cunard Steamship Co., supra.'
Therefore plaintiff's motion for a preliminary injunction is denied and defendants' motions to dismiss the complaint are granted.
An order in conformity herewith should be settled.