The opinion of the court was delivered by: LEMMON
Illustrating the growing importance of administrative law, these cases require a study of the role played by what is now known as the Federal Maritime Board, 46 U.S.C.A. § 1111, note, under the Shipping Act of 1916, as amended, 46 U.S.C.A. § 801 et seq., vis-a-vis civil and criminal actions brought by the United States under the Antitrust Acts, 15 U.S.C.A. § 1 et seq. This in turn calls for a survey of the boundaries of the Board's 'primary jurisdiction'.
The defendants in the criminal and in the civil action are identical. They consist of the corporation and five of its officers. The corporate defendant was organized under the laws of the State of Washington and has its principal place of business at Seattle, Washington, where the individual defendants all reside.
On November 2, 1950, the United States District Court for the District of Alaska, Third Division, entered an order granting a motion of the defendants, over the plaintiff's objection, for a change of venue in the criminal case under Rule 21(b), Federal Rules of Criminal Procedure, 18 U.S.C.A., from the Alaska Court to this court.
After setting forth considerable material relating to definitions, the defendants, and the nature of Alaska trade and commerce- material not essential to an understanding of the law points discussed herein- the indictment contains the following pertinent allegations:
This combination has been and is now in unreasonable restraint of the said trade and commerce, in violation of 15 U.S.C.A. section 3, commonly known as the Sherman Act.
The conspiracy has consisted of the defendants' agreement:
(a) To acquire a virtual monopoly of the transportation of persons and commodities by water for hire in the Alaska trade by merging the operations of the Northland Transportation Company and the Alaska Steamship Company, the corporate defendant which is hereinafter referred to as Alaska Steam; by hindering, obstructing, and preventing others from chartering vessels for the purpose of entering the Alaska trade in competition with them; and by attempting to acquire control of, eliminate competition with, and merge the defendants' operations with those of the Alaska Transportation Company, their largest remaining competitor;
(b) To maintain and perpetuate their virtual monopoly of transporting passengers and freight by water in the Alaska trade, and to prevent and eliminate the actual and potential competition of other water carriers by entering into agreements with shippers by the terms of which the latter are required to deal exclusively with them and to refrain from doing business with competing water carriers; and by utilizing their position as the only carrier serving the whole of Alaska and offering a full line of shipping service, to coerce shippers to ship exclusively with them.
This coercion was to be carried out as follows:
(1) By threatening to limit, delay, or withdraw the service of carrying supplies north to canneries and fisheries and other industrial users in Alaska unless such shippers patronize them exclusively in the transportation of fish and other products south from Alaska;
(2) By threatening to limit, delay, or withdraw the service of transporting perishables under refrigeration unless shippers desiring or requiring this service patronize them exclusively in the transportation of non-perishable freight;
(3) By threatening to limit, delay or withdraw the service of transporting passengers unless shippers desiring such service patronize them exclusively in freight transportation;
(4) By threatening to limit, delay, or withdraw the service of transporting dry cargo unless shippers requiring such service patronize them exclusively in the transportation of fish oil or other bulk liquids;
(5) By threatening to limit, delay, or withdraw service to shippers patronizing any other water carrier;
(6) By threatening to limit, delay, or withdraw service to shippers to, from, or between Alaska points, which only the defendants serve, if shippers requiring or desiring such service patronize any other water carrier serving any other Alaska points;
(7) By threatening to increase freight rates on particular commodities unless shippers of such commodities deal exclusively with them and refrain from dealing with any other water carrier;
(8) By offering to reduce and reducing freight rates on particular commodities if shippers deal with them and refrain from dealing with other water carriers;
(9) By inducing and compelling shippers to breach existing contracts and agreements to ship freight with other water carriers by the several means alleged in sub-paragraphs (1) through (8) of this sub-paragraph;
Continuing its recital of the means whereby the defendants planned to 'maintain and perpetuate their virtual monopoly', the indictment alleges that it was to be done also by diverting or scheduling their 'ships so as to split or reduce cargo available to other water carriers', and by 'denying other water ...