conducted; and in the second of these cases, there was the additional fact that failure to comply with the standard could result in criminal and civil penalties. In contrast, the instant Report and Order of the Federal Maritime Board neither alters nor affects the Conference's business practices, and threatens no penalties. The carriers may conduct their business as they have been doing, with the rates which they have themselves established, entirely unaffected by the order. All that the Conference is saying is that it is apprehensive that the Board has laid down "principles by which future regulation of the trade will be governed," with the result that the Board may have restricted the Conference's freedom in the future to make rates. The Conference is merely speculating that "all the carriers may at any moment find their existing rates unlawful because of improvements in Bull's operating efficiency or other factors, outside of their control, improving the profitability of Bull's operations." The simple fact, demonstrated by the Conference's own argument, is that it is asking for an advisory ruling that some of the statements made in the Board's Report are erroneous, because in the event of some future contingency, these statements may conceivably be applied so as to result in a future determination adverse to the petitioners. The wholly conjectural argument of the Conference in the instant case is on all fours with that of the petitioner in Montana-Dakota Utilities Co. v. Federal Power Commission, 169 F. 2d 392, 402 (1948) (cert. den. 335 U.S. 853). There the Commission set up a formula designed to return to petitioner a fair and reasonable compensation for its services. In its suit for review, petitioner posed two hypothetical situations in which, so it argued, it would not in fact receive reasonable compensation. The Court said: "Until an actual test of the rate schedule is made showing that it results in some unfairness, the Court cannot annul a prescribed rule for applying the rate to deliveries simply because petitioner can conceive a situation which considered in isolation might not return the amount hoped for." supra, at 402. Similar reasoning was followed in Sun Oil Company v. Federal Power Commission, 256 F. 2d 233 (1958). There, Sun's rate schedule filings were rejected and its certificates of public convenience and necessity were cancelled, but no injury to Sun was shown nor was there any threat of injury. The Court stated: "There is no need to anticipate an injury not presently threatened and not shown to be something likely to arise in the future." 256 F. 2d at p. 239. The Conference has been unable to show that there is any injury likely to arise in the future under the conditions which presently exist and which presumably will continue to exist. The Conference can at best only assume that Bull's operating efficiency will increase or that other factors-not further described-may occur to the detriment of the remaining carriers in the Conference. Such speculative conjecture does not warrant the Court's setting aside the Board's order. The Conference cannot at one and the same time both support the ultimate conclusion of the Board and attack the methods employed to arrive at that conclusion. The following language from Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151 (1934), is dispositive of the instant case: "The company was successful in the District Court and supra, Even if the Conference were to prevail in the instant controversy, the rates would still stand as approved by the Board. This being the case, there is no purpose to be served by judicial inquiry. In Interstate Natural Gas Co. v. Federal Power Commission, 156 F. 2d 949, 951 (1946) | (affd. 331 U.S. 682), the Court stated: "[T]he rate order must be viewed in its entirety, and 'it is not the theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unjust and unreasonable judicial inquiry under the Act is at an end.'" (citations omitted) supra, at 951. Here, the Conference admits that the total effect of the rate order is just and reasonable, for it has established the rate itself, and it supports the rate order against the challenge of the Commonwealth. It cannot now ask for further judicial inquiry. II. The Board Did Not Err in Considering Bull as the "Ratemaking Carrier.” In certain prior rate investigations, the Board and its predecessors have followed the "ratemaking carrier" approach in analyzing the justness and reasonableness of the rates under inquiry. In so doing, the Board has, in effect, said that where there is a single, greatly predominant carrier in a domestic off-shore trade, whose operations comprehensively serve that trade, that carrier may be treated as the "ratemaking" carrier, and rates for the trade will be reviewed by the Board in the light of the rate base and profit and loss positions of that carrier. In those cases, as in the instant case, this is a reasonable approach under the particular circumstances which the Board found to be prevailing in the trade. Bull is by far the largest carrier in the trade. For the first half of 1958 it carried 57 percent of the total tonnage carried by all carriers in the trade. Bull has three sailings per week 8 E.g., General Increase in Hawaiian Rates, 5 F.M.B. 347 (1957); General Increases in Alaskan Rates, 5 F.M.B. 486 (1958). * 558,880 tons for Bull; 169,363 tons for Alcoa; 132,202 tons for Waterman; and 107,822 tons for Lykes (J.A. 23) (Bd. Rep. 7). 3 from North Atlantic ports to Puerto Rico,10 utilizing six C-2 type vessels on a strictly maintained 14-day turnaround (J.A. 17) (Bd. Rep. 5). Moreover, Bull devotes its operations almost exclusively to the domestic trade. Of its three weekly sailings, two call at no other ports than those in the U. S. North Atlantic and in Puerto Rico. The third sailing calls at the Dominican Republic, but the amount of foreign cargo picked up and discharged is very small in proportion to the domestic cargo and the geographical deviation involved is trifling (J.A. 17). The Bull service, therefore, presents no very complex problem of revenue and expense allocation as between regulated and unregulated activity. In contrast with the service of Bull, Alcoa and Lykes are preponderantly concerned with trades other than the Puerto Rican trade. Lykes operates vessels worldwide as a subsidized carrier. Its so-called "Line A" service (one of five major services linking U. S. Gulf ports with every continent except Australia) sails once weekly to a broad area throughout the Caribbean, calling at Cuba, Haiti, the Dominican Republic, Puerto Rico, Venezuela, Colombia, and Panama, in addition to U. S. Gulf ports. Lykes makes no voyages to or from Puerto Rico exclusively (J.A. 20) (Bd. Rep. 8). The U.S.-Puerto Rican cargoes handled by Line A are far exceeded by the foreign cargoes handled. Alcoa's Puerto Rican service consists of a weekly southbound voyage from North Atlantic ports to Puerto Rico, averaging 14.5 days in transit to Puerto Rico, as contrasted with 6 days for Bull (J.A. 17). After discharge at Puerto Rico, these vessels then proceed into foreign trades. Alcoa also has a weekly service from Gulf ports to Puerto Rico, averaging 12.5 days in transit to Puerto Rico (J.A. 17). Prior to March 1958, Alcoa had no northbound service in either its North Atlantic or Gulf trades, but in that month 10 Puerto Rico is roughly equidistant from New Orleans and New York. As the ratemaking carrier, Bull's service from the North Atlantic is also fairly representative of services from the Gulf. it began to haul cargo homebound to the Gulf (but not the North Atlantic) from Puerto Rico. The record herein was made too soon after the commencement of Alcoa's homebound service to the Gulf to permit any firm impression of it to be drawn (J.A. 17) (Bd. Rep. 5).11 Waterman, like Lykes, operates vessels in a number of wide-ranging trades, serving the Atlantic, Gulf, and Pacific ports of the United States and ports in Asia and Europe. It furnishes a weekly shuttle service between New Orleans and Puerto Rico, operating 2 C-2 vessels on a 14-day turnaround, and it calls at no foreign ports with these ships. In short, Lykes serves Puerto Rico as an incident to its subsidized Line A service; and Alcoa serves Puerto Rico southbound primarily to place ships in position so that it can honor its northbound contractual commitments. Only Bull and Waterman operate what may be called a "pure" Puerto Rican service, and in contrast to Bull, Waterman carries a small proportion of the total traffic. On these facts, the Board obviously was correct in concluding that Bull is the "rate-making line" in the trade. The Conference, however, argues that the "rate-making carrier' doctrine deprives other carriers of their right to a fair return, thereby "depriving [them] of their property in violation of the Fourteenth Amendment." It advocates, as the only Constitutional approach, the use of "the composite results of the group or a representative sample of its members." Use of the composite results of the group (or their average, which is the same thing), or of a representative sample, would still result in rates too low for Alcoa and Lykes to earn a profit. This stems from peculiarities of their operation, not the Board's method of evaluating the overall rates. There is no way to assure every carrier a profit, unless the rates be set at a level which permits even the most inefficient carriers to earn a profit. Obviously, 11 Alcoa has contract commitments which preempt its vessels after they have called at Puerto Rico on the southbound voyage from New York (J.A. 194). 1 |