UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
August 5, 1988
WATERMAN STEAMSHIP CORP., Plaintiff,
JAMES H. BURNLEY, SECRETARY OF TRANSPORTATION, et al., Defendants
The opinion of the court was delivered by: SPORKIN
STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.
Memorandum Opinion and Order
This case involves one episode in an ongoing battle among several members of our Nation's Merchant Marine about the transferability of certain rights created by statute -- "section 615 authorizations." At the heart of this dispute is the parties' disagreement about how to interpret a statute enacted seven years ago as a stopgap, emergency measure to deal with a shortage of ship construction subsidy funds. This is the third action brought by plaintiff Waterman Steamship Corporation ("Waterman") seeking "to have enjoined and declared unlawful the approval by the defendants, the United States Government, the sale of Section 615 rights (46 U.S.C. App. 1185), to another U.S.-flag operator." Defendants' Opposition at 1.
There are two principal benefits which flow from a section 615 "right" or "authorization," pursuant to which foreign-built U.S.-flag vessels are treated as if they were U.S.-built. One benefit is that the authorization may make the holder eligible for operating-differential subsidies ("ODS")
-- provided the holder satisfies certain other criteria. The other benefit the holder can derive from a 615 authorization is access to U.S. preference cargoes three years sooner than otherwise would be possible. The possession of a section 615 authorization serves to waive the normally required three year waiting period before a newly documented U.S. flag ship can become eligible for the transportation of federal preference cargoes under Section 901(b) of the Merchant Marine Act of 1936 (46 U.S.C.App. § 1241(b)).
Central Gulf Lines ("CGL"), the defendant-intervenor and the recipient of the 615 rights at issue in this case, is presently not eligible to receive ODS -- it therefore claims that it seeks to use the three 615 authorizations it has purchased only to obtain the waiver of the three-year waiting period to ship U.S. preference cargoes.
The principal actors in this case are: 1) plaintiff, Waterman, a common carrier operating U.S.-flag, U.S.-built subsidized vessels in foreign commerce under an ODS contract with the United States. Waterman did not apply for section 615 authorizations and it has not been a transferee of such authorizations; 2) defendants, Maritime Subsidy Board ("MSB"), United States Maritime Administration ("MarAd"), and Secretary of Transportation Burnley, who collectively have the responsibility for authorizing, making, amending and terminating ODS contracts, and allegedly have the authority to authorize the transfer of Section 615 rights to build ships foreign yet have them "deemed" to have been U.S. built; 3) defendant-intervenor, CGL, a common carrier that operates ships under the U.S. flag but does not receive operating subsidies. CGL is the transferee of the three Section 615 authorizations at issue. It paid $ 1,550,000 to obtain these rights. CGL has not previously been a transferee of any other Section 615 rights; 4) amicus curiae American President Lines ("APL"), a common carrier and a party to an ODS contract with the United States. APL operates U.S. flag vessels in foreign commerce. APL also is the transferee of several other build-foreign authorizations (Section 615 rights) initially granted to another party by MarAd.
The factual development of this dispute began on September 14, 1982, when United States Lines ("USL") received authorization from MarAd to construct fourteen Jumbo Econship vessels at a foreign shipyard pursuant to section 615. Proposed Administrative Record at 101-104 ("P.A.R. "). USL received such authorization because construction differential subsidy ("CDS")
funds were unavailable. P.A.R. at 27. Although it was an ODS operator, USL did not receive authorization for any ODS for the subsequent operation of any of the vessels built. P.A.R. at 37. USL had twelve Jumbo Econships built pursuant to the September, 1982, section 615 authorizations.
It retained two section 615 authorizations.
On September 30, 1982, Delta Steamship Lines, Inc. ("Delta") received authorization from the MSB to construct up to ten vessels in a foreign shipyard pursuant to section 615 authorizations.
At the time of its application, Delta was operating 24 vessels with ODS. Delta, like USL, received the section 615 authorizations because CDS funds were unavailable. Delta constructed three vessels pursuant to the section 615 authorizations. On January 11, 1985, the Maritime Administrator and the MSB authorized Delta to assign one of its section 615 authorizations to United States Lines S.A. ("USL S.A."). The transaction was completed on January 25, 1985.
On November 4, 1986, USL and USL S.A. filed voluntary bankruptcy petitions under Chapter 11 of the Bankruptcy Act. The two corporations, acting as debtors-in-possession in the bankruptcy proceedings in the United States Bankruptcy Court for the Southern District of New York, offered three unused section 615 authorizations for sale -- the two USL authorizations and the section 615 authorization USL S.A. obtained from Delta. USL, USL S.A. and CGL obtained approval from MarAd for the proposed sale of the section 615 rights to CGL on March 26, 1987.
A little more than a month later, CGL prevailed in a bidding contest conducted by the Bankruptcy Court for the three authorizations -- and on April 17, 1987, purchased the authorizations for $ 1,550,000.
The federal defendants made the sale of the three section 615 rights subject to certain conditions, including the requirement that CGL obtain approval from MarAd of the commercial characteristics of the vessels to be procured, and that the Navy Department approve the National Defense features of the ships to be obtained pursuant to the section 615 rights.
In addition, CGL indicated to MarAd that it intends to operate the three vessels without ODS. See March 26, 1987 Letter from CGL to MarAd.
On April 6, 1987, Waterman petitioned the Secretary of Transportation to review MarAd's approval of the transfer of the three section 615 rights. CGL opposed the petition on April 13. No action was taken by the Secretary and the transactions became final on April 21, 1987. Waterman brought this action on June 19, 1987.
The Case as it was Originally Framed
Waterman initially brought this suit for "review . . . of agency actions . . . approving the sale of special statutory privileges authorizing construction of U.S.-flag ocean vessels in foreign shipyards which would be entitled to the benefits reserved to U.S.-built vessels." Complaint at 2. According to the plaintiffs,
. . . these privileges were intended to be available only to subsidized U.S.-flag vessel operators in 1982 to fill their then-current needs. Their sale or barter was not authorized by Congress.
Complaint at 2 (emphasis added). The core issue in this case, according to Waterman at that juncture, was the legality of selling section 615 authorizations to the highest bidder. Plaintiff challenged the federal defendants' authority to approve the purchase of these authorizations by either defendant-intervenor CGL, or for that matter, any other party. Plaintiff emphasized that:
The privileges bought by CGL were granted under 46 U.S.C. § 1185, which was intended by Congress to authorize foreign building only by vessel operators receiving or applying for operating subsidy who could not contract for new vessels in U.S. yards at economical prices because of the unavailability of construction subsidy. They were not meant to be saleable and certainly were not meant to be sold to unsubsidized operators merely to give them access to U.S.-built vessel cargoes. The defendants' purported authorization of the sales of these privileges was arbitrary, capricious, abused defendants' discretion and was not in accordance with law.
Complaint at 3 (emphasis added). The gravamen of plaintiff's complaint at the start of this litigation, therefore, was that the transfer of Section 615 authorizations was not in keeping with either the plain meaning of the statute or Congress' intent when it enacted Section 615.
The fact that plaintiff initially mounted a full fledged attack on the transferability of Section 615 rights is further borne out both by a review of CGL's and the federal defendants' briefs,
which address the issue of general transferability, and APL's entry into this case as amicus curiae solely to argue that this court should not invalidate the transferability of Section 615 rights in toto -- but rather, should decide the case either in favor of CGL's right to be a recipient of 615 rights or on one of Waterman's other proposed grounds.
Plaintiff's complaint, the arguments made by the government, the arguments set forth by the intervenor-defendant CGL, the entry of the amicus, APL, solely to address the issue of general transferability and the substance of the oral argument make it clear that plaintiff initially asked this court to consider the fundamental question of whether a Section 615 authorization can be transferred. After briefly considering the issue of standing, I address that fundamental question.
In order to satisfy Article III standing requirements, a party must "'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant' and that the injury 'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision.'" Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982) (footnote and citations omitted).
Waterman challenges the validity of the federal defendants' approval of the transfer of three section 615 rights to CGL. Waterman will be injured by the actions of the federal defendants if CGL, pursuant to the transfer of the section 615 rights, enters three new, foreign-built vessels into competition with Waterman for U.S. preference cargoes three years earlier than otherwise would be possible. CGL, however, contends that Waterman cannot prove that it will use the new vessels to compete with Waterman and that "nothing has been offered to prove precisely how Waterman has been injured to date, or how and when it will be injured in the future." CGL's Summary Judgment and Dismissal Brief at 33.
CGL, however, has provided strong indications that it intends to use the new vessels to compete on Waterman's trade routes. See generally Affidavit of J. R. Leyh (Senior Vice President of Waterman) and attached Statement of Erik F. Johnsen (President of CGL). CGL historically operates in those markets where Waterman is currently operating its vessels. Id. Furthermore, the record in this case reveals no indication about the sort of vessels CGL will acquire or construct; nor have the federal defendants imposed any apparent limitations on CGL's use of the vessels, either in terms of the type of use or the geographical locations of such use. It would be inequitable to permit CGL to take advantage of the blank check nature of the section 615 authorizations it has obtained to deflect attacks by those who realistically claim they will be competitively harmed by the operation of the vessels.
I find that the threatened competition for its essential cargoes is sufficient to satisfy the injury-in-fact requirement for standing upon Waterman. See e.g. Investment Company Institute v. Camp, 401 U.S. 617, 91 S. Ct. 1091, 28 L. Ed. 2d 367 (1971); Clarke v. Securities Industry Association, 479 U.S. 388, 107 S. Ct. 750, 754 n.4, 93 L. Ed. 2d 757 (1987). Waterman has asserted an injury in fact, fairly traceable to the agency defendant's conduct and redressable by the relief sought. Waterman has constitutional standing. Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 3324-25, 82 L. Ed. 2d 556 (1984).
CGL, relying on a strained reading of Clarke v. Securities Industry Association, supra, also contends that Waterman was not an intended beneficiary of section 615 and hence lacks "zone of interest standing." According to CGL, evidence of Congressional intent to benefit the plaintiff is required for standing. Even under that crabbed conception of the zone of interests test, Waterman merits standing. CGL argues that Congress' only purpose for the September 30, 1982 termination date in section 615:
. . . was to place a limit on the total number of brand new build-foreign licenses that could be issued . . . said limitation was prescribed exclusively for the benefit of the U.S. shipyards, which hoped to become competitive again.
Waterman is not a licensee under Section 615. It could have been a licensee, but it did not even apply. Similarly, Waterman is not a U.S. shipyard. A fortiori, Waterman is not within the "zone of interest" of those with legal standing to challenge the transfer of licenses . . .
CGL's Summary Judgment and Dismissal Brief at 35. When enacting section 615, however, Congress was not nearly as narrow-minded as CGL suggests. A statute which explicitly allows only ODS recipients or applicants to apply for benefits reflects concern about all U.S.-flag carriers that either receive ODS or are eligible to apply for it. Waterman was an ODS recipient at the time the statute was enacted, was eligible to apply for section 615 authorizations, and hence was squarely within the zone of interests Congress sought to benefit.
Moreover, section 615 is not a uni-dimensional statute, but rather, reflects a carefully crafted balance between the interests of shipyards and the interests of U.S.-flag carriers -- both those which applied for section 615 rights and those which did not. As a carrier which elected not to apply for section 615 rights, and apparently would not have applied in succeeding years, Waterman is also a beneficiary to the termination provision in the Act. It has a right to enforce that provision -- which protects the competitive interests of those operators which did not apply for section 615 authorizations.
In any event, Waterman certainly has standing under the far less demanding "zone of interest" test set forth in Clarke and subsequent D.C. Circuit cases. Clarke expressly rejected the methodology that CGL urges: the search for specific Congressional intent, in one particular provision, to benefit a particular class of plaintiffs:
In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.
Id. at 757 (emphasis added) (disapproving Control Data Corp. v. Baldrige, 210 App. D.C. 170, 655 F.2d 283, 293-94 (D.C. Cir.), cert. denied, 454 U.S. 881, 102 S. Ct. 363, 70 L. Ed. 2d 190 (1981), which had required intent to protect or benefit the plaintiff). Here, Waterman's efforts to enforce the termination provision are consistent with the balanced purpose of the statute.
Moreover, the Clarke Court indicated that a court may look to the entire statutory scheme to determine whether the plaintiff is in the zone of interest. Clarke, supra, 107 S. Ct. at 756, 758. I find that Waterman's enforcement of the limitations in section 615 is also consistent with the broader purposes of the Merchant Marine Act of 1936. 46 U.S.C.App. §§ 1101 et seq.18 Section 615, which temporarily waived the three-year waiting period for foreign-built ships to carry U.S. preference cargoes, provided a limited exception to the Merchant Marine Act's consistent policy of requiring the Merchant Marine to be U.S.-built.
Waterman's efforts to prevent agency abuse of the limited authority provided by section 615 is consistent with the overall purposes and structure of the Merchant Marine Act of 1936.
Laches, Equitable Estoppel and Waiver
CGL contends Waterman's action is barred by the doctrines of laches, equitable estoppel and waiver. It is hard to understand CGL's laches argument. CGL initially sought MSB approval for the proposed section 615 transfers by letters dated March 10 and March 16, 1987. CGL's request was approved eleven days later, on March 27, 1987. Only nine days after the proposed transfer was approved, Waterman filed a Petition for Secretarial Review. The approval became final on April 12, 1987 and the Bankruptcy Judge finalized the sale on April 21, 1987. Shortly thereafter, on June 19, 1987, Waterman filed this suit. CGL complains about the "54 day delay" between the finalization of the sale and the filing of suit presumably because of its concern that it may be out of pocket $ 1.55 million if the sale is disapproved. See CGL's Summary Judgment and Dismissal Brief at 38. However, the only time Waterman could have filed suit before CGL finalized its sale was between the date the approval became final, i.e. April 12, and the date the sale was consummated, i.e. April 21. Waterman's failure to file suit during this short nine day gap simply is not covered by the doctrine of laches.
CGL's equitable estoppel argument is rooted in CGL's frustration that Waterman has not sued to enforce the termination provisions of section 615 in several other potential "transfer cases." It is without merit. CGL's waiver argument arises out of an alleged private agreement between Waterman and CGL. This alleged agreement is not part of the administrative record and has no bearing on this case.
Standard of Review
Actions taken by these federal agency defendants are subject to judicial review pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), which provides that "a reviewing court shall . . . hold unlawful and set aside agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law . . ."
The question presented in this case is one of pure statutory construction: Did Congress intend, when it enacted section 615, that section 615 authorizations to build foreign would be freely transferable for profit? In other words, in approving the sale for profit of section 615 authorizations, have the agency defendants acted in accordance with congressional intent, as manifested in the text of section 615 and its legislative history?
Although the agency defendants have concluded that such transfers are permissible, the Supreme Court has stated:
The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.
Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S. Ct. 2778, 2781 n.9, 81 L. Ed. 2d 694 (1984). A court need not defer to an agency opinion on a question of pure statutory interpretation. Rather, "if a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Chevron, supra, 104 S. Ct. at 2781 n.9. When construing a statute, "courts may substitute their interpretation of a statute for that of an agency whenever they face 'a pure question of statutory construction for the courts to decide,' rather than a 'question of interpretation [in which] the agency is required to apply [a legal standard] to a particular set of facts.'" I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 1225, 94 L. Ed. 2d 434 (1987) (Scalia, J. concurring in the result) (quoting majority op. at 1220-21); see also N.L.R.B. Union v. FLRA, 266 App. D.C. 165, 834 F.2d 191, 198 (D.C. Cir. 1987); International Union, U.A.W. v. Brock, 259 App. D.C. 457, 816 F.2d 761, 764 (D.C. Cir. 1987). See also Union of Concerned Scientists v. United States Nuclear Regulatory Commission, 262 App. D.C. 381, 824 F.2d 108, 113 (D.C. Cir. 1987) ("When the court faces a 'pure question of statutory interpretation,' the court need not defer to agency opinion, even if the statutory provision at issue admits of some ambiguity.").
In those circumstances, however, in which a court is reviewing an agency's application of a legal standard to a particular set of facts, it "must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program." Id. at 1221-22. In such situations, the two-prong test of Chevron applies:
First, always is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
Chevron, 104 S. Ct. 2781-82 (footnotes omitted).
CGL's, the federal defendants' and amicus APL's contentions notwithstanding, the question presented here is one of pure statutory interpretation. I can clearly discern congressional intent. I therefore need not defer to the agency's opinion about the transferability of section 615 rights.
In this case, using "traditional tools of statutory construction," it is clear Congress never intended to permit the transfer for profit of section 615 rights. Permitting transfers effectively extends the limited authority Congress granted defendants to issue section 615 authorizations and upsets the balance Congress struck when it enacted section 615.
Section 615 was a limited exception to a longstanding policy discouraging the construction of vessels in foreign shipyards. The measure expired at the end of fiscal year 1982. It provided a one year "window" for operators to apply for authorization to build vessels abroad that would "be deemed to have been United States built." According to section (b) of the statute, the statute would have been effective for fiscal year 1983 "if the President in his annual budget message for that year request[ed] at least $ 100,000,000 in construction differential subsidy or propose[d] an alternate program that would [have] create[d] equivalent merchant shipbuilding activity . . ." The President failed to request any funds for CDS in his budget message and section 615 expired by its own terms on the last day of fiscal year 1982. As a result, the agency defendants were stripped of their authority to issue new section 615 authorizations. To permit the transfer of section 615 rights now, which in effect would allow operators to obtain new authorizations almost six years later, would directly contravene stated congressional intent that no more section 615 authorizations be issued after the end of fiscal year 1982.
Congress deliberately chose to incorporate a two-step expiration clause into the statute. In so doing, it sought to achieve two related objectives -- each of which can and should be respected. Both would be undercut by allowing the transfer of section 615 authorizations.
The first, and prime, objective of the expiration provision was to induce the President to request at least $ 100,000,000 in CDS funds or propose the equivalent for fiscal year 1983. According to the House Committee on Merchant Marine and Fisheries:
The last clause makes section 615 a nullity if certain construction differential subsidies are not budgeted as indicated. It is meant to be an inducement to the Administration to continue the program at the levels it has proposed.
H.R. Rep. No. 97-63, 97th Cong., 1st Sess. (1981).
The $ 100 million minimum commitment required from the President "was adopted due to an expressed fear that once vessel operators are permitted to build foreign, there will be little or no support for pursuing a maritime program or policy for an adequate domestic shipbuilding mobilization base." Id. The temporary and contingent nature of the foreign-building authority was specifically designed to "spur" the operators and the Administration to provide adequate support for the shipbuilding industry and to develop an overall maritime strategy.
In blunt terms, to maintain the operators' right to build foreign for one more year, the Administration was asked to ante up construction subsidies. This quid pro quo arrangement would have been sabotaged had the Administration and the maritime industry realized when the statute was passed that section 615 authorizations would, by virtue of their alleged transferability, effectively be available well after the termination of section 615 authority. Similarly, allowing free transferability would have eviscerated Congress' effort to use section 615's potential second year of authority to build consensus within the maritime industry for funding further construction subsidies. It is hard to imagine Congress acting in such a self-defeating fashion.
The second objective Congress sought to achieve when it included the termination provision in section 615 was to balance the competing interests of the operators and the domestic shipbuilding industry.
Section 615 was compromise legislation.
The legislative history indicates that the short one-two year duration of section 615 authority was the product of powerful Congressional concern that opening a longer "window" would have too severe an adverse impact on the domestic shipbuilding industry.
For instance, during the Mark-up, when the House Committee on Merchant Marine and Fisheries was considering the duration of the section 615 "window," Congressman Tauzin reflected the concern about limiting the impact of section 615 on the shipbuilding industry when he stated:
"It occurs to me that I would have a lot better feeling about the action we are taking in terms of the viability of our shipyards into the future if we could shorten the date in your amendment so that when this bill comes up for yearly reauthorization we might examine the effects and see whether or not we are in fact committing a great many ships to be built overseas."
Id. at 23 (emphasis added).
See also Sea-Land Petition at 11-19. The House Committee on Merchant Marine and Fisheries Mark-up session unmistakably evinces the legislators' intent to limit the section 615 "window" to one year and to prevent operators from using section 615 to "stock up" on authorizations for use or sale in the future. Id. at 23-32. As Chairman Jones stated:
The bill provides a way out for American flag ship vessel operators if CDS funds are in fact not available. I emphasize that the change in the law is of temporary duration. Therefore it will provide some emergency relief to our American flag vessels until such time as the Administration and the Congress can develop an overall maritime strategy.
H.R. 97-63, supra, at 39 (emphasis added).
The legislative history leaves little doubt that Congress intended to provide certain domestic ship operators limited, emergency relief. To permit transfers now would have the same result Congress sought to avoid by placing a one-two year termination provision in the statute -- use of section 615 authorizations to build foreign vessels many years down the road without any Congressional approval.
That is the case because permitting the current transfer of section 615 rights would have the effect of preserving an available pool of such unused rights for those operators which have none -- yet seek to obtain rights and benefits no longer available because section 615 has expired. The bottom line effect would be to allow operators to obtain section 615 rights after the statute has expired. Such a result disrupts the balance Congress sought to achieve and tilts section 615 too far in favor of certain operators.
Defendants and amicus, however, have a very different view of Congress' intent. According to CGL, the intent of section 615 was "to obtain, for the benefit of the U.S. merchant marine and our national defense, the maximum number of new U.S. flag vessels U.S. flag operators are able to construct with private capital under licenses issued prior to September 30, 1982." CGL's Summary Judgment and Dismissal Brief at 30. Similarly, APL and the Secretary argue that:
the overriding purpose of section 615 is to assist ODS contractors to construct new, technologically advanced vessels, and that the purpose could be best achieved by permitting the transfer of section 615 authorizations to alternative qualified ODS operators where the original grantees prove unable or unwilling to implement the authorizations.
APL's Principal Brief at 4 (citing American President Lines, Equity Maritime Companies, Section 615 Authority, 23 SRR 670 (Secy., December 23, 1985)). In short, defendants assert that Congress' principal goal in enacting section 615 was to permit operators to obtain modern vessels regardless of their source. In turn, they claim that because transfers maximize the number of vessels obtained pursuant to section 615's authority -- transfers are permissible.
Defendants oversimplify the legislature's intent. Section 615 was enacted to address a number of divergent policy concerns. Defendants are correct that one of section 615's purposes was to foster a strong merchant marine. To help achieve that goal, the Act authorizes ODS operators and applicants to build-foreign without losing the benefits of building in the United States.
However, Congress recognized that if available over a long period, the right to build-foreign could sap the strength of our nation's shipbuilding industry by shifting domestic demand to foreign shipyards. Such a shift, also would be detrimental in the long run to the strength of our Merchant Marine and our national defense.
Section 615, therefore, was enacted with a finite term. As discussed above, another policy goal Congress sought to achieve was to benefit ODS operators such as Waterman and APL. As a result, only certain parties were eligible to apply for section 615 rights. The legislative history indicates the statute was "limited, temporary, emergency legislation," enacted in large part to help subsidized operators satisfy their ODS contractual vessel replacement obligations. See Sea-Land Petition at 12.
The main result achieved by the termination provision was to cap or limit the number of ships that could be built pursuant to section 615. Had Congress sought to make available a ready and continuing supply of section 615 authorizations, it certainly could have done so. All it need have done was to enact section 615 without any expiration date. However, after careful consideration of competing policy goals, Congress deliberately chose to incorporate the termination provisions in section 615. In so doing, it effected a delicate balance and made plain its intent that the number of ships constructed pursuant to section 615's authority not be "maximized." That decision should be honored. Permitting free-wheeling transfers of section 615 rights significantly increases the number of vessels operating under the statute's authority, threatens to erode our nation's shipbuilding capacity, circumvents the plain meaning of the statute and thwarts Congress' intent.
Defendants' rationale for permitting the transfer of section 615 rights essentially amounts to an argument for de facto renewing the grant of authority to the Secretary. It very well may be that defendants are correct -- that more section 615 authorized vessels need to be constructed -- and that section 615 should be renewed. However, that is an issue that neither this court nor the agency defendants is authorized or able to decide. It is a question reserved for Congress. See generally Transcript at 59-61.
Perhaps the most troubling aspect about the concept of permitting private parties to buy and sell section 615 foreign building privileges is the unabashed profiteering that concomitantly takes place. In this case, CGL purchased three unused section 615 rights for $ 1.55 million. The recipients of this windfall, USL and USL S.A., did virtually nothing to earn this substantial sum. USL S.A. merely purchased its section 615 right from a third party, perhaps for speculative purposes, and re-sold it to CGL. The number of such sales exceeds twenty.
In the typical scenario, the seller does nothing to earn the sale price beyond merely having successfully applied for the section 615 right before the authorizing period came to an end. Nothing in the statute or the legislative history indicates that Congress ever contemplated that private companies would sell government-created rights for tremendous profits. Congress did not want section 615 rights to be available at any price after the expiration of section 615 authority. Congress certainly did not intend to permit substantial windfall profits to be collected by operators in a sort of "futures market" without regard to public policy concerns. It is obvious that any revenues derived from the sale of such naked rights should accrue to the United States government.
Administration of Section 615 and the Administrative Procedure Act
Even if the section 615 rights were transferable under the terms of the Act, MarAd acted improperly by failing to follow APA notice and comment procedures when it decided to permit transfers. This is too important a matter for the shipping industry to be carried out on a case-by-case basis and by ad hoc decision-making. A rulemaking was necessary. Standards are needed. Contrary to the practice in this case, interested parties should at the very least receive notice and an opportunity to be heard before a program allowing such transfers is inaugurated. See Transcript at 17. In fact, the entire issue should be fully aired by all interested parties. Standards for transferability must be carefully considered. The danger of profiteering must be addressed and the government's share, if any, of the revenues generated by transfers must be determined. In a case such as this, these kinds of issues should be considered on an industry-wide basis, similar to the way in which they were considered when Congress passed the underlying legislation.
Subsequent to the summary judgment argument in this case, Waterman has advised the court that it does not want this case to be decided on the general transferability issue. Since Waterman, however, has refused to drop its entire case, it is not in a position to tell me on what basis I should decide its motion. In general, a court cannot be circumscribed by the parties as to what it may say in arriving at its decision or on what basis it may decide a case. It is troubling that Waterman has given no real explanation for its change in position. In any event, since the case is still before me, I am rendering my decision on the basis that I believe is most appropriate and therefore reject the request made by Waterman.
For the foregoing reasons, Waterman's Motion for Summary Judgment is granted.
It is hereby DECLARED that the transfer of section 615 authorizations is unlawful.
It is hereby ORDERED that defendants are enjoined from approving, allowing or in any way permitting CGL to construct vessels in foreign shipyards pursuant to rights obtained under 46 U.S.C.App. § 1185 contrary to the determination made this day by this court, and it is further
ORDERED that defendants are enjoined from approving the transfer of any section 615 authorizations to build or acquire any vessel or in any other fashion allowing the use of any section 615 authorization by CGL to operate in competition with Waterman or otherwise contrary to 46 U.S.C.App. § 1185 as interpreted by this court this day, and it is further
ORDERED that this case is hereby remanded to MarAd for further proceedings in accordance with this opinion, and it is further
ORDERED that this court shall retain jurisdiction to provide whatever additional relief may be required.
This order is issued after consideration of the parties' briefs and oral arguments, the entire record herein and for the reason stated in the Memorandum Opinion issued this same day. It is hereby DECLARED that the transfer of section 615 authorizations is unlawful.
It is hereby ORDERED that defendants are enjoined from approving, allowing or in any way permitting CGL to construct vessels in foreign shipyards pursuant to rights obtained under 46 U.S.C. § 1185 contrary to the determination made this day by this court, and it is further
ORDERED that defendants are enjoined from approving the transfer of any section 615 authorizations to build or acquire any vessel or in any other fashion allowing the use of any section 615 authorization by CGL to operate in competition with Waterman or otherwise contrary to 46 U.S.C. § 1185, as interpreted by this court this day, and it is further
ORDERED that this case is hereby remanded to MarAd for further proceedings in accordance with the opinion, and it is further
ORDERED that this court shall retain jurisdiction to provide whatever additional relief may be required.
Dated: August 5, 1988