should be given to some particular remedy, civil or criminal.' 228 U.S. at pp. 107-108, 33 S. Ct. at p. 449.
Pacific & Arctic is inapposite to the present case for two reasons. First, that prosecution grew out of a single large conspiracy of railroads, steamship companies and warehousing companies who allegedly were attempting to destroy competition in a large sector of the combined water and railroad transportation industry. The case therefore presented an extensive and complicated factual picture, involving three different types of commercial transportation, and there was a clear need for calling on the experience of the Commission before criminal charges should be acted upon.
Second, Pacific & Arctic is inapposite because, as the quotation above demonstrates, it was a criminal prosecution based on violation of the requirements of the Commission which were probably created by rule of the Commission itself in exercising its administrative power. In that case, a determination by the Commission of whether conduct violated the rules it created would be relevant. In the present case, however, the criminal charges are based on alleged violations of the explicit and specific provisions of 46 U.S.C. § 815, not on any rule of the Maritime Commission. The Commission would have no power to enlarge or contract the scope of § 815, and, because § 815 was not created by the Commission as a result of its experience in the area, the Commission's views as to whether § 815 had been violated would not be relevant.
The defendants also argue that their principal reason for claiming that exclusive primary jurisdiction rests with the Commission here is that the alleged conduct of the defendants in knowingly accepting the Shipper's false measurements, if not specifically prohibited by § 815, but comes within, if at all, the general prohibition of § 815 against the use of '* * * any other unjust or unfair * * * means * * *'. They argue that the Commission's wide experience should be consulted to determine whether the moving defendants' alleged practice of accepting all Shipper's measurements, which they claim is the only feasible method of doing business, is proscribed by the general language of § 815.
In this case, however, the determination of whether the alleged conduct, if proven to have occurred, comes within the general language of § 815 is a simple question of law -- the interpretation of the intent of the statute -- and, on this question, the experience of the Commission is irrelevant. It is no more able or expert in interpreting the meaning and intent of § 815 than would be a Court. In Burnham v. United States, 1 Cir. 1961, 297 F.2d 523 where the defendant was charged with aiding a partnership in its operation as a contract carrier, without a permit, in violation of the Interstate Commerce Act, the Court rejected the defendant's argument that primary jurisdiction over the charge rested in the Interstate Commerce Commission. The Court held that it alone, without the assistance of the Interstate Commerce Commission, could construe the document under which the partnership was operating, and determine whether it was merely a lessee or a contract carrier within the definition of the Act. See Great Northern Railway Co. v. Merchants Elevator Co., 1922, 259 U.S. 285, 42 S. Ct. 477, 66 L. Ed. 943; River Plate and Brazil Conferences v. Pressed Steel Car Co., 2 Cir. 1955, 227 F.2d 60, 63.
Finally, defendants have submitted to the Court a copy of a proposed regulation of the Maritime Commission which would require carriers, in transporting automobiles, to accept, for the purpose of computing charges, automobile manufacturers' standard weights and measurements. The defendants argue that if carriers must accept the manufacturers' measurements for shipments of cars, they should not be prosecuted for doing the same thing with shipments of a different product. The proposed rule is of no help here because it was promulgated under the Commission's power to prescribe reasonable regulations and practices under §§ 816-817, and has nothing to do with a determination of whether a carrier's knowing acceptance of a shipper's false measurements is violative of § 815. The proposed rule is also irrelevant because it requires the acceptance of the auto manufacturers' standard measurements, not the measurements of the shipper.
In summary, the charges contained in the Information in this case present a relatively simple factual situation, and a legal question of the construction of § 815. The exercise of jurisdiction by a Court over this criminal prosecution, based entirely on past conduct allegedly violative of § 815, will not in any way interfere with the Commission's regulatory functions under the Act. Consequently, the Commission does not have exclusive primary jurisdiction over the conduct on which the criminal charges are based. The motion to dismiss the Information is therefore denied.
It should be noted that I reach this conclusion without regard to the letter (attached to an affidavit in opposition to the motion) from the Commission's General Counsel to the Criminal Division of the Department of Justice, in which the General Counsel states that the Commission is of the opinion that the alleged misconduct of the defendants presented no reason for involving the specialized judgment of the Commission in a formal administrative proceeding.
The Government may present an order in conformity with the views expressed in this opinion.