Consolo v. Federal Maritime Commission

RESPONDENT: Federal Maritime Commission
LOCATION: Baconsfield Park

DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 383 US 607 (1966)
ARGUED: Dec 06, 1965 / Dec 07, 1965
DECIDED: Mar 22, 1966

Facts of the case


Media for Consolo v. Federal Maritime Commission

Audio Transcription for Oral Argument - December 07, 1965 in Consolo v. Federal Maritime Commission

Audio Transcription for Oral Argument - December 06, 1965 in Consolo v. Federal Maritime Commission

Earl Warren:

Number 63, Philip R. Consolo, Petitioner, versus Federal Maritime Commission et al.

Mr. (Inaudible)

Mr. Chief Justice, I move the admission of Richard A. Posner of the New York Bar for the purpose of arguing in this case for the United States.

Earl Warren:

Your motion is granted.

Mr. Posner.

Isn't it -- oh, Mr. Kharasch.

Robert N. Kharasch:

Mr. Chief Justice and members of the Court.

We have here a case which is, in one way similar to the Atlantic Coastline case just argued and in several ways rather more far reaching.

This case involves a duty of a common carrier to carry for all shippers, a duty which has been recognized for centuries.

At common law, when a carrier refused to carry, the remedy was swift and it was simple.

The shipper sued the carrier and collected damages.

Under the Shipping Act, there is now a statutory remedy of reparation for shippers injured by water carrier's violation of the Act.

The questions presented in this Consolo case involved a future vitality of the reparation remedy in three very basic ways.

First, there is a question of jurisdiction to review a reparation order of an agency.

This question involves not only the question presented in the Atlantic Coastline case just argued, but also the question whether the review procedure for Maritime Commission orders is going to be so violently complex as to defeat the statutory reparation remedy.

Second, there is presented a question of the standards to be followed by an agency in awarding reparation.

Is there, as the statute says there is reparation, for unjust and unreasonable discrimination or is there hidden in the statute some license to discriminate against shippers with impunity because of some never before known and unarticulated doctrine of equities which defeat the remedy for flagrant discrimination?

Essentially, the question is whether this Maritime statute has in it some vague equitable concept like the concept of misconduct in Pennsylvania discussed earlier today.

Third, and equally important for the future of the law of reparation, the Consolo case presents an important question of the standards of review.

If there is a standard of equity in awarding reparation, who judges the equities, is it to be the agency passing on the facts or reviewing Court making fact findings for itself?

The facts of this case are relatively simple.

Philip R. Consolo is an independent importer of bananas.

As an independent importer, he needed supplies of bananas from Ecuador which is the country supplying bananas to the independents who don't own the plantation.

Second, he required regular service to carry bananas to the United States by a common carrier which had refrigerated space available in its ships.

It was carrying bananas as well as hundreds of other commodities.

At relevant times, there were two common carriers in the trade from Ecuador to the United States, the Grace Line and Flota Mercante Grancolombiana, which is the respondent here.

The common law duty of an ocean carrier to carry for all shippers was continued under the Shipping Act, and the agency administering the Shipping Act had twice held, once in 1953 again in 1957, that the Grace Line had to carry for all shippers.

In 1955, Flota had given all its refrigerated space to a single preferred shipper.

In 1957, which is the time it becomes relevant here, this carrier knew that this shipper wanted space but Flota had secretly determined to give all of its refrigerated space to the preferred shipper.

Consolo, in order to get space on Flota, in order to attempt to receive the reparation provided by statute, had to go through the two-step procedure.