The opinion of the court was delivered by: LACEY
The United States of America, acting on behalf of the Federal Aviation Administration, and the Civil Aeronautics Board, sues to enjoin a proposed course of conduct engaged in by the defendants, jointly and severally, which is scheduled for December 21, 1974, and thereafter. The defendants are Caribbean Ventures, Ltd. (CVL), an Antigua corporation, and others, some of whom I shall generically style the Florida defendants, and including, as well, Kammann, the purported pilot, and Velardi and Snyder, allegedly principals of CVL.
Jurisdiction is claimed (and not contested) under 49 U.S.C. § 1487(a), and venue is properly in this district, it being further noted that significant activity involved herein has and will occur in New Jersey.
This matter is before me at this stage on plaintiff's application for a preliminary injunction. It is well to review fundamental principles implicated by an application for a preliminary injunction. Traditionally, a preliminary injunction will not ordinarily issue except on a showing that the party seeking this extraordinary relief will be irreparably injured pendente lite if his application is denied. However, in cases where a violation of a statute, or of federal regulations implementing a statute, is alleged, as in this case, a showing of irreparable injury is not required. C.A.B. v. Donaldson Line (Air Services) Limited, 343 F.Supp. 1059 (S.D.N.Y.1972); C.A.B. v. Modern Air Transport, Inc., 81 F.Supp. 803, 806 (S.D.N.Y.1949), aff'd, 179 F.2d 622 (2d Cir. 1950). There must be shown, however, in addition to the alleged statutory violation, that there is a reasonable probability of eventual success on the merits and that the public interest favors granting the relief thus sought. Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir. 1972); Winkleman v. New York Stock Exchange, 445 F.2d 786, 789 (3d Cir. 1971); A.L.K. Corp. v. Columbia Pictures Industries, Inc., 440 F.2d 761, 763 (3d Cir. 1971); Mixing Equipment Co. v. Philadelphia Gear, Inc., 436 F.2d 1308, 1315 (3d Cir. 1971); U.S. Steel Corp. v. Fraternal Ass'n of Steelhaulers, 431 F.2d 1046, 1048 (3d Cir. 1970); Nelson v. Miller, 373 F.2d 474, 477 (3d Cir. 1967), cert. denied, 387 U.S. 924, 87 S. Ct. 2042, 18 L. Ed. 2d 980 (1967); Kontes Glass Co. v. Lab Glass, Inc., 373 F.2d 319, 320 (3d Cir. 1967); Ikirt v. Lee National Corp., 358 F.2d 726, 727 (3d Cir. 1966); Joseph Bancroft & Sons Co. v. Shelly Knitting Mills, Inc., 268 F.2d 569, 573-574 (3d Cir. 1959); Warner Bros. Pictures, Inc., v. Gittone, 110 F.2d 292, 293 (3d Cir. 1940).
The public interest is entitled to great consideration in the necessary balancing of equities in a determination by a district court whether to issue a preliminary injunction or not. See Delaware River Port Auth. v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 920 (3d Cir. 1974). See also, Commonwealth of Pennsylvania ex rel. Creamer v. United States Department of Agriculture, 469 F.2d 1387, 1388 (3d Cir. 1972); In re Penn Central Transportation Co., 457 F.2d 381, 384-385 (3d Cir. 1972); Nelson v. Miller, supra.
I shall deal with CVL and its principals first. The government pleads as to them as follows:
By virtue of the holding out of air transportation services to members of the general public, CVL and its principals are indirect air carriers or indirect foreign air carriers within the meaning of the Federal Aviation Act, 49 U.S.C.A. § 1301(3), (10), (19) and (21).
The conduct of the defendants, CVL, Velardi and Snyder, in holding out air transportation services to the public (and the conduct of the defendants, L & S International, Inc., Eastern Aircraft Services Ltd., R.K.K. Corporation and Leonard Simkovitz, Lloyd Kammann), through their combined activites constitutes them a single, integrated air carrier engaging in air transportation as an air carrier or foreign air carrier within the meaning of the Federal Aviation Act, 49 U.S.C.A. § 1301(3), (10), (19), (21).
The defendants, CVL, Velardi and Snyder are engaged in the direct operation of an aircraft as an air carrier or foreign air carrier within the meaning of the Federal Aviation Act, 49 U.S.C.A. § 1301(3), (10), (19), (21) and (26).
It is admitted that none of the defendants has a certificate of public convenience and necessity or foreign air carrier permit issued by the C.A.B. It is this absence of certification which the government claims in Counts I-III is violative of 49 U.S.C.A. §§ 1371(a) and 1372(a).
Counts IV and V allege that as an air carrier or as an operation for hire defendants have failed to secure an appropriate air carrier operating certificate, see 49 U.S.C.A. § 1430(a)(4) and 14 C.F.R. 121.3, or an appropriate commercial operator operating ...