author: Mr. Justice White

text:
    INTERSTATE COMMERCE COMMISSION v. ATLANTIC COAST LINE R. CO. et al.
    No. 14.
    Argued December 6, 1965.
    Decided March 22, 1966.

      Robert W. Ginnane argued the cause for petitioner. With him on the briefs for petitioner and for the United States, as amicus curiae, were Solicitor General Marshall, former Solicitor General Cox, Bruce J. Terris, Leonard S. Goodman and Richard A. Posner.

      J. Edgar McDonald argued the cause for respondents. With him on the brief were Phil C. Beverly and Urchie B. Ellis.

   Mr. Justice White

delivered the opinion of the Court.

This case is before the Court for a determination of when and in what proceedings a common carrier by rail may challenge an order of the Interstate Commerce Commission awarding reparations to a shipper claiming injury because of the carrier’s violation of the Act.

A shipper, Thomson Phosphate Company, filed a complaint with the Commission alleging that certain rates charged by respondent railroads were unjust and unreasonable and seeking reimbursement of those transportation charges to the extent they were unlawful. Interstate Commerce Act §§ 8 and 9, 24 Stat. 382, as amended, 49 U. S. C. §§ 8 and 9 (1964 ed.). The Commission sustained the complaint and issued a report finding that the assailed rates were unjust and unreasonable and that the shipper was entitled to reparations. Thomson Phosphate Co. v. Atlantic Coast Line R. Co., 303 I. C. C. 25 (Div. 2, 1958). When respondents refused to certify the shipper’s statements showing the shipments made during the period involved, the Commission reopened the proceeding for a determination of the amount of reparations due. After such additional proceedings, the Commission found Thomson was entitled to reparations of $8,889.76 with interest, and an order was entered authorizing and directing respondents to pay such sum by a specified date, later amended to August 28, 1961. 311 I. C. C. 315. Respondents refused to comply with the order and brought suit in the United States District Court for the Middle District of Florida under § 17 (9) of the Interstate Commerce Act, 24 Stat. 385, as amended, 49 U. S. C. § 17 (9), and 28 U. S. C. §§ 1336 and 1398 (1964 ed.) to enjoin, set aside, and annul the orders of the Commission. Respondents claimed, inter alia, that the Commission erred in finding the rates unreasonable and in not finding Thomson’s claims barred by the Act’s limitation provision, Interstate Commerce Act § 16 (3), 24 Stat. 384, as amended, 49 U. S. C. § 16 (3) (1964 ed.). Thomson, which was not a party to the carriers’ action, filed in the Southern District of New York a suit against respondents and other railroads to enforce the Commission’s reparation award pursuant to § 16 (2) of the Interstate Commerce Act, 49 U. S. C. § 16 (2) (1964 ed.). By stipulation, the New York case has been held in abeyance pending the outcome of the Florida case, which is presently before this Court.

The Commission moved to dismiss the carriers’ injunction action, contending that reparation orders are not reviewable in such a suit and that the carriers were required to await the shipper’s enforcement action to attack the Commission’s order. The Florida District Court denied the motion to dismiss and, on the merits, held that Thomson’s claims were barred by limitations. 213 F. Supp. 199. The sole issue raised on appeal was whether the District Court had jurisdiction. The Court of Appeals affirmed, sustaining the jurisdiction of the Florida District Court. 334 F. 2d 46. We granted cer-tiorari because of the importance of this question in the administration of the Act. 379 U. S. 957. We reverse and hold that when the Commission issues a reparation order, not accompanied by a cease-and-desist order, a carrier may obtain review of the Commission’s order only in the court where the shipper commences its enforcement action — or where the shipper seeks review of the Commission’s order, see Consolo v. Federal Maritime Comm’n, post, p. 607.

I.

The Interstate Commerce Act contains detailed provisions governing the presentation and adjudication of claims for reparations. Section 8 is the basic provision creating liability and declares that any common carrier by rail which violates the Act “shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation . . . .” By § 9, the complainant is given the alternatives of seeking such damages by complaint to the Commission, under the procedures established by § 13 (1), or of bringing suit in a federal district court. But the primary jurisdiction doctrine requires initial submission to the Commission of questions that raise “issues of transportation policy which ought to be considered by the Commission in the interests of a uniform and expert administration of the regulatory scheme laid down by [the] Act.” United States v. Western Pac. R. Co., 352 U. S. 59, 65; Texas & Pac. R. Co. v. American Tie & Timber Co., 234 U. S. 138. Accordingly, a shipper who commences his § 9 reparation proceeding in the District Court will nevertheless be required to repair to the Commission for decision of issues, like the reasonableness of rates, which call the primary jurisdiction doctrine into play. When that occurs, the court ordering the reference of such issues to the Commission has exclusive jurisdiction of any civil action to enforce, enjoin, set aside, or annul a Commission order arising out of the referral, 28 U. S. C. § 1336 (b) (1964 ed.), such action to be brought within 90 days of the entry of the Commission’s final order, 28 U. S. C. § 1336 (c) (1964 ed).

Our concern here, however, is with the alternative procedure provided in § 9, which involves an initial complaint before the Commission and culminates in the § 16 (2) suit to enforce the Commission’s reparation award. Section 16 (1) provides that if the Commission determines the complainant is entitled to reparations it “shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.” If the carrier fails to comply with the order by the designated time, the shipper then has the right under § 16 (2) to file suit in either federal or state court to enforce the Commission’s reparation award. Moreover, Congress has provided that in such a suit the shipper is to have certain procedural advantages designed to discourage “harassing resistance by a carrier to [the] reparation order.” St. Louis & S. F. R. Co. v. Spiller, 275 U. S. 156, 159; see also Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 433; Baldwin v. Milling Co., 307 U. S. 478. The shipper has a broad choice of venue. If the suit is brought in a federal court, see Lewis-Simas-Jones Co. v. Southern Pac. Co., 283 U. S. 654, 661, the shipper is free from liability for costs, except as they accrue on its appeal, and it may introduce at trial the findings and order of the Commission, which “shall be prima facie evidence of the facts therein stated. . . .” In addition, the shipper is to be allowed a reasonable attorney’s fee if it prevails, an advantage also accorded under § 8 to shippers who elect to proceed in court in the first instance.

The Interstate Commerce Act likewise contains general provision for judicial review of Commission orders. Section 17 (9) provides that after an application for rehearing, reargument, or reconsideration has been denied or otherwise disposed of, a suit may be brought to enforce, enjoin, suspend, or set aside the Commission decision, order or requirement.

Jurisdiction of both § 16 (2) and § 17 (9) suits is vested in the federal district courts by 28 U. S. C. § 1336 (a) (1964 ed.). Venue is determined by 28 U. S. C. § 1398 (a) (1964 ed.), which, “except as otherwise provided by law,” limits suits to the judicial district where the party bringing the action has his residence or principal office. But because of the quoted exception, this venue restriction does not apply to suits commenced pursuant to § 16 (2), as that section contains its own venue provision.

Procedures for review of Commission orders “other than for the payment of money,” see 28 U. S. C. § 2321 (1964 ed.), are governed by 28 U. S. C. §§ 2321-2325 (1964 ed.). Such actions must be brought by or against the United States, § 2322; the Commission and parties in interest appearing before the Commission may intervene as of right, § 2323; and no interlocutory or permanent injunction restraining enforcement of a Commission order may be granted unless the application is heard and determined by a three-judge district court, § 2325, with direct review here, 28 U. S. C. § 1253 (1964 ed.). In United States v. Interstate Commerce Comm’n, 337 U. S. 426, however, this Court held that Commission orders which determine in a reparation proceeding that assailed rates are unlawful but do not direct the carrier to cease and desist charging such rates, because the rates have been discontinued, “are not of sufficient public importance to justify the accelerated judicial review procedure,” 337 U. S., at 442. Thus, though the procedures set out in 28 U. S. C. §§ 2321-2325 (1964 ed.) otherwise govern § 17 (9) proceedings to review such orders, § 2325 is not applicable and the matter may be adjudicated by a single judge. Because § 16 (2) actions seek enforcement of an order “for the payment of money,” the above-described procedures do not apply. Section 16 (2) directs that actions thereunder “shall proceed in all respects like other civil suits for damages,” with the exception of the special procedural advantages accorded the shipper to which we have previously referred.

II.

From the foregoing summary it will be observed that § 16 (2) actions for enforcement of Commission reparation awards and § 17 (9) actions to set aside Commission orders are quite distinct proceedings, with different venue restrictions and different procedures. Moreover, Congress conferred certain procedural advantages on shippers bringing § 16 (2) actions that may well be lost or impaired if carriers may attack the Commission’s order in a direct review proceeding pursuant to § 17 (9). Accordingly, we are asked to harmonize the language and purposes of the two provisions.

At the outset, however, it should be emphasized that we are here concerned with a narrow, though important, category of cases. First, it is conceded that if the Commission’s reparation order is accompanied by a cease-and-desist order, as it usually will be when the proceeding originates before the Commission and the rates or practices under attack continue in use, the carrier may obtain immediate review of the cease-and-desist order pursuant to § 17 (9); and such review will ordinarily determine the validity of the finding of statutory violation on which the reparation order is founded. A Commission cease-and-desist order respecting rates and charges, for example, which may be issued pursuant to the authority granted by § 15 (1) to prescribe just and reasonable rates, subjects the carrier to $5,000 per day penalties for noncompliance, 49 U. S. C. § 16 (8) (1964 ed.), and is typical of orders reviewed in suits to set aside Commission orders since the first such suit, Stickney v. Interstate Commerce Comm’n, 164 F. 638 (C. C. D. Minn.), aff’d, 215 U. S. 98; see also Interstate Commerce Comm’n v. Delaware, L. & W. R. Co., 220 U. S. 235; United States v. Interstate Commerce Comm’n, 337 U. S. 426, 454 (Frankfurter, J., dissenting). Second, even when a cease-and-desist order is not joined with the reparation order, the latter order will be subject to direct review when no other means of securing review is available, regardless of whether review is sought by a shipper, United States v. Interstate Commerce Comm’n, 337 U. S. 426; Consolo v. Federal Maritime Comm’n, post, p. 607, or the carrier, Pennsylvania R. Co. v. United States, 363 U. S. 202. In the cited cases the party seeking review could not obtain such review in a § 16 (2) suit, either directly or through interposition of a defense.

Thus in United States v. Interstate Commerce Comm’n, supra, the Government filed with the Commission a complaint seeking reparations, but the Commission found the assailed charges did not violate the Act and dismissed the complaint. As there was no award upon which to base a § 16 (2) suit, the United States would have been denied all review had jurisdiction of the § 17 (9) action not been sustained. Similarly, in Consolo v. Federal Maritime Comm’n, post, p. 607, we hold that a shipper may challenge in a direct review proceeding the adequacy of a reparation award, such a challenge being one that could not be pressed in an enforcement action, see Baltimore & Ohio R. Co. v. Brady, 288 U. S. 448, 457-458; D. L. Piazza Co. v. West Coast Line, 210 F. 2d 947 (C. A. 2d Cir. 1954), cert. denied, 348 U. S. 839.

Pennsylvania R. Co. v. United States, supra, involved a suit by a carrier in the Court of Claims to collect the charges due under its tariff. The United States defended on the ground that the rates were unreasonable, and the Court of Claims referred that issue to the Commission pursuant to the primary jurisdiction doctrine, United States v. Western Pac. R. Co., 352 U. S. 59, 62-70. The Commission found certain rates unjust and unreasonable, without ordering reparations or issuing a cease- and-desist order, and the carrier filed a § 17 (9) suit in federal district court to set the order aside. On review of the Court of Claims’ refusal to further suspend its proceedings pending the District Court action, this Court held that the carrier was entitled to judicial review of the Commission order, that the Court of Claims had no jurisdiction to afford such review, and that the Court of Claims should therefore have suspended its proceedings. Because of the holding that the Court of Claims could not review the Commission order, failure to sustain the District Court’s jurisdiction of the carrier’s § 17 (9) action would again have precluded judicial review.

The essential question in this case is the extent to which United States v. Interstate Commerce Comm’n and Pennsylvania R. Co. v. United States, compel allowance of respondents’ direct review action. The Commission asks us to limit those cases to their facts — situations where judicial review would not have been available if the § 17 (9) suit was not permitted. It argues that sufficient opportunity to obtain review of the Commission’s finding that a statutory violation has occurred is afforded respondents by their right to challenge that determination in defense of Thomson’s § 16 (2) action to enforce the reparation award. If jurisdiction to review in a § 17 (9) suit should be sustained, the Commission further contends, shippers will be deprived of many of the advantages bestowed by § 16 (2). And the historical development of § 16 (2) and the direct review proceeding is said to establish that Congress did not contemplate that the carrier could obtain direct review in a case like that at bar and thereby short-circuit the shipper’s suit. Finally, the Commission urges that in reparation cases where the assailed rates are no longer in effect and no cease-and-desist order issues the Commission’s order has little continuing or general significance but is comparable to an adjudication in a private damages action of interest only to the parties involved; therefore, it is appropriate for the order to be defended by the shipper, who is in effect compensated for such defense by the procedural advantages accorded by § 16 (2), rather than by the United States and the Commission.

Respondents argue that, to the contrary, past practice and the decisions of this Court establish that the exclusive method of reviewing Commission findings that a statutory violation has occurred is through a § 17 (9) proceeding and that such a finding may not be challenged and is not open to review in a § 16 (2) action. Respondents also argue that limiting review to the § 16 (2) proceeding would result in disparate treatment of shippers, through conflicting decisions in enforcement suits, and would thus violate the Act’s cardinal principle of uniformity of rates.

As will appear more fully below, we take a middle course. We conclude that carriers may obtain full review by defending the § 16 (2) action and that the policy underlying that section precludes the carriers from obtaining review in a forum other than that chosen by the shipper. But we find no obstacle to the carriers’ bringing a § 17 (9) cross-proceeding in the forum selected by the shipper, should they so desire.

III.

A threshold question is raised by respondents’ contention that the statutory violation issue is not open to review in a §16(2) enforcement action, the Commission’s finding being conclusive on the enforcement court unless set aside in a §17 (9) proceeding. If respondents are correct on this point, their § 17 (9) action must be allowed under even the Commission’s interpretation of United States v. Interstate Commerce Comm’n, 337 U. S. 426, and Pennsylvania R. Co. v. United States, 363 U. S. 202.

To support their view of the scope of review in the enforcement action, respondents refer principally to Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247. In that case, a shipper commenced its reparation suit under §§ 8 and 9 in a federal district court. This Court held that since the dispute raised “administrative” questions concerning the reasonableness of rates, the primary jurisdiction doctrine required the shipper to proceed first before the Commission. Regarding the weight to be accorded the Commission’s resulting order, the Court said:

“Such orders, so far as they are administrative are conclusive, whether they relate to past or present rates, and can be given general and uniform operation, since all shippers, who have been or may be affected by the rate, can take advantage of the ruling and avail themselves of the reparation order. They are quasi-judicial and only prima jade correct in so far as they determine the fact and amount of damage — as to which, since it involves the payment of money and taking of property, the carrier is by § 16 of the act given its day in court and the right to a judicial hearing . . . .” 230 U. S., at 258.

Accord, Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U. S. 304.

The prima facie evidence provision in § 16 (2), however, draws no express distinction between administrative and quasi-judicial findings of the Commission, and we said of that provision in Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 430, that “[i]t cuts off no defense [and] interposes no obstacle to a full contestation of all the issues . . . .” See also United States v. Inter state Commerce Comm’n, 337 U. S. 426, 435 (§16 (2) proceedings afford “railroads complete judicial review of adverse reparation orders”). Moreover, in one of the earliest cases under the Hepburn Act, the Court reviewed the question of statutory violation in a §16(2) case, concluded that the legal theory applied by the Commission was erroneous, and set aside the Commission’s determination that the disputed rates were unreasonable. Southern R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297. See also Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370. The seemingly contradictory statements in the contemporaneous Mitchell Coal and Meeker decisions require explanation, which we believe can be found in the general course of decisions in that era respecting the scope of review of Commission orders.

From our brief résumé of the Court’s opinion in Mitchell Coal it should be immediately apparent that the case did not, strictly speaking, require the determination of the scope of judicial review in § 16 (2) enforcement actions. The proceeding under review had been commenced in court pursuant to § 9 rather than § 16 and no Commission order had yet been entered. The question directly in issue concerned the applicability of the primary jurisdiction doctrine to cases involving discontinued, rather than present, rates.

Initially formulated in cases arising under the Interstate Commerce Act, the primary jurisdiction doctrine was premised in the early cases on the policy of the Act of assuring uniform rates. The Court reasoned that many questions arising under the Act, such as whether rates were unreasonable or discriminatory, were essentially questions of fact particularly appropriate for determination by an expert Commission. If shippers could challenge the filed rates by proceedings before a court, without prior resort to the Commission, different conclusions might be reached by different courts; and the prevailing shippers would thereby obtain a rate preference as compared to unsuccessful shippers, which would violate the principle of uniform rates. See, e. g., Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 440-441; Baltimore & Ohio R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 493-495; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 255-260. Of course a preliminary determination by the Commission would have little effect in achieving uniformity if its determination were subject to de novo review, and it was for that reason that the Court pointed out in Mitchell Coal the “conclusive” effect that would be accorded “administrative” findings of the Commission in any ensuing § 16 action.

But other decisions rendered by the. Court during the same period indicate that it was not only in § 16 proceedings that the Commission findings would be conclusive, in the sense the Court was actually using that term. Under the original Act, failure to comply with any order of the Commission did not in itself entail any penalty. Commission orders were judicially enforceable at the instance of the Commission or any party in interest, and the Act provided that in an enforcement action “the findings of fact in the report of said Commission shall be prima facie evidence of the matters therein stated.” Interstate Commerce Act, § 16, 24 Stat. 384 (1887), as amended, 25 Stat. 860 (1889). Though retaining the prima facie evidence provision for actions on reparation awards, the Hepburn Act of 1906 included no provision respecting the weight to be given Commission findings in nonreparation cases. Section 15 of the amended Act, however, made Commission orders, except orders for the payment of money, self-enforcing for purposes of incurring liability for penalties for noncompliance, unless such orders had been suspended or set aside by a court of competent jurisdiction. In Interstate Commerce Comm’n v. Illinois Central R. Co., 215 U. S. 452, a suit to set aside a cease-and-desist order, the changes effected by the Hepburn Act in making Commission orders self-enforcing were interpreted as reducing the scope of judicial review from that prevailing when Commission orders were only prima facie evidence. The Court stated it could consider whether the Commission action exceeded constitutional power or right, whether the administrative order was within the scope of authority delegated, and whether the exercise of authority was reasonable, but it could not “usurp merely administrative functions by setting aside a lawful administrative order upon our conception as to whether the administrative power has been wisely exercised. Power to make the order and not the mere expediency or wisdom of having made it, is the question.” 215 U. S., at 470. Through frequent repetition, see Interstate Commerce Comm’n v. Union Pac. R. Co., 222 U. S. 541, 547-548; Procter & Gamble Co. v. United States, 225 U. S. 282, 297-298, the principles elaborated in Illinois Central gradually became restated as a doctrine “that the findings of the Commission were made not merely prima facie but conclusively correct in case of judicial review, except to the extent pointed out in the Illinois Central and other cases . . . ,” United States v. Louisville & Nashville R. Co., 235 U. S. 314, 320. Accord, Central R. Co. v. United States, 257 U. S. 247, 256-257; United States v. Illinois Central R. Co., 263 U. S. 515, 525-526 and n. 7. See generally, Rochester Tel. Corp. v. United States, 307 U. S. 125, 139-140. By a parallel development, the Court placed increasing reliance in primary jurisdiction cases on the “conclusive” effect of Commission orders as a factor demonstrating that the requirement of preliminary resort to the Commission on administrative questions would indeed further the statutory policy of uniform treatment. Compare Baltimore & Ohio R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 494, with Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 258, quoted, supra, p. 590.

When Mitchell Coal and Meeker are read together against the background of the Illinois Central and Louisville ■& Nashville cases it becomes clear that Commission orders are fully reviewable in § 16 (2) suits, but Commission findings on questions required under the primary jurisdiction doctrine to be determined first by the Commission are conclusive in the same sense that such findings would be conclusive in suits to set aside the Commission’s order. That is, findings on primary jurisdiction issues are to be reviewed by the Court on the administrative record under the familiar standards elaborated in direct review proceedings, while findings on other questions are subject to review under the prima facie evidence provision of § 16 (2), with the statutory rights of introducing evidence not before the Commission and obtaining a jury determination of disputed issues of fact. Such an interpretation of § 16 (2)’s prima facie evidence provision is required if that provision is to be consonant with the primary jurisdiction doctrine. That interpretation seems to have been applied by the Court in Pennsylvania R. Co. v. Weber, 257 U. S. 85, 90—91; Louisville & Nashville R. Co. v. Sloss-Shef- field Co., 269 U. S. 217; News Syndicate Co. v. New York Central R. Co., 275 U. S. 179; Adams v. Mills, 286 U. S. 397, 409-410. It is urged in the present ease by the Commission and in a companion case by the Federal Maritime Commission, was accepted by the court below, 334 F. 2d, at 49, n. 12, and has been applied by several other lower federal courts, New Process Gear Corp. v. New York Central R. Co., 250 F. 2d 569, 571-572 (C. A. 2d Cir. 1957), cert. denied, 356 U. S. 959; Midland Valley R. Co. v. Excelsior Coal Co., 86 F. 2d 177, 181-182 (C. A. 8th Cir. 1936); Baltimore & O. R. Co. v. Brady, 61 F. 2d 242, 246, 248 (C. A. 4th Cir. 1932), rev’d on other grounds, 288 U. S. 448; City of Danville v. Chesapeake & O. R. Co., 34 F. Supp. 620, 625, 627-628 (D. C. W. D. Va. 1940); Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 237 F. 272, 275 (D. C. E. D. Pa. 1916). We adhere to that interpretation now.

IV.

Having established that the carrier has ample opportunity to secure review in the enforcement action, we must now consider whether affording the carrier the alternative of bringing direct review proceedings pursuant to § 17 (9) would vitiate the congressional policy expressed in § 16 (2) of encouraging prompt payment of reparation awards. To effectuate that policy, Congress has provided for the shipper certain procedural and substantive benefits pertaining to venue, freedom from costs, prima facie effect of the Commission’s order, and allowance of a reasonable attorney’s fee. The Commission contends that permitting the carrier to bring direct review proceedings will materially impair the benefits derived by the shipper from the procedural dispensations of § 16 (2). We conclude that although the degree of impairment would be less than that claimed by the Commission, it would nevertheless be substantial.

The Commission argument respecting venue, which we accept, proceeds as follows: Because the carrier may bring its § 17 (9) action as soon as the final Commission order is entered but the shipper’s § 16 (2) suit must await passage of the date set for compliance, the carrier may file its suit first and thus obtain priority. Although the carrier’s suit must be brought against the United States, 28 U. S. C. § 2322 (1964 ed.), the Commission and the shipper may intervene as of right, 28 U. S. C. § 2323 (1964 ed.), and the shipper will be under compulsion to do so to protect its interest since a decision setting aside the Commission’s order would destroy the foundation of the enforcement action. In this way, the shipper will frequently be denied his choice of forum on the statutory violation issue as the § 17 (9) suit must be brought in the judicial district of the residence or principal office of the party bringing the suit, 28 U. S. C. § 1398 (a), which may be far removed from the district in which the shipper resides or through which the road of the carrier runs — alternatives that are open to the shipper under § 16 (2) and, being likely to offer a more convenient venue to the shipper, would frequently be the shipper’s choice.

By a similar analysis the Commission also contends that a shipper forced to intervene in the carrier’s § 17 (9) action would lose the advantages of freedom from costs and the right to a reasonable attorney’s fee, since those rights are conferred only in the § 16 (2) action and not in § 17 (9) actions. But since both the § 16 (2) action and the § 17 (9) action may be heard and determined by a single district judge when the reparation order is not accompanied by a cease-and-desist order, United States v. Interstate Commerce Comm’n, 337 U. S. 426, 440-443; Pennsylvania R. Co. v. United States, 363 U. S. 202, it would be possible, apart from venue problems, for the shipper to press its action in the same district as the carrier’s action, either by an independent action to be consolidated with the carrier’s action, Fed. Rule Civ. Proc. 42 (a), or by a counterclaim after intervention in the carrier’s action, see Switzer Bros., Inc. v. Locklin, 207 F. 2d 483 (C. A. 7th Cir. 1953); 3 Moore, Federal Practice ¶ 13.05 (2d ed. 1964), 4 Moore, Federal Practice ¶ 24.17 (2d ed. 1963). Then to the extent that the shipper’s costs and attorney’s fees were attributable to its § 16 (2) counterclaim or action the § 16 (2) advantages would clearly be applicable. And it would be arguable — an issue we do not decide — that the shipper would be entitled to the benefit of § 16 (2) as to all its costs and attorney’s fees in the combined action.

Since the Commission believes that the scope of review of findings on primary jurisdiction issues would be the same regardless of whether review was sought in a §16(2) or a §17(9) action, it makes no claim that allowance of the direct review proceeding would undercut the prima facie evidence provision of § 16 (2).

In summary, the principal, if not sole, effect of permitting respondents’ direct review proceeding would be to force on shippers the alternatives of either forgoing the opportunity to defend the Commission order or accepting the carrier’s choice of a distant venue. The first alternative is obviously counter to the policy expressed in § 16 (2), and, as we have said, it is to be expected that shippers would elect to defend the Commission’s order even at the expense of loss of their venue advantage. The importance of choice of venue in these actions should not be discounted. Since the record in the enforcement action is not limited to that made before the Commission, the shipper may desire to call witnesses or to introduce documentary evidence either in direct support of the Commission’s order or in rebuttal to opposing evidence produced by the carrier, thus bringing into play those factors relating to the convenience of witnesses and the relative burden of making proof that make the choice of venue so important in other contexts. See Mercantile National Bank v. Langdeau, 371 U. S. 555; Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260.

y.

But respondents contend that confining review to the enforcement action would introduce into the administration of the Act problems of greater severity and importance than any effect such a course might have in safeguarding the shipper’s § 16 (2) privileges. Respondents note that under the doctrine of Phillips Co. v. Grand Trunk Western R. Co., 236 U. S. 662, shippers who are not complainants before the Commission may nevertheless obtain the advantage of the Commission’s reparation order as a basis for their own § 16 (2) action. It is argued that the enforcement court has no power to set aside the Commission order and, therefore, a decision upholding a carrier’s attack on the Commission’s order in one enforcement proceeding would not preclude another shipper from successfully invoking that order in a separate enforcement proceeding, thus resulting in disparate treatment of shippers contrary to the Act’s objective of securing uniform rates.

It is of course true that the court may not formally set aside the Commission’s order in an action in which neither the Commission nor the United States is a party. Cf. United States v. Jones. 336 U. S. 641, 651-653, 670-671; Pennsylvania R. Co. v. United States, 363 U. S. 202, 205. But we do not read Phillips Co. v. Grand Trunk Western R. Co., supra, to permit reliance by a nonparticipating shipper on the Commission’s order when it has been disapproved in litigation between the complainant shipper and the railroad. In the Phillips case, the Commission had separately determined that challenged rates were unlawful and had issued a cease-and-desist order, which was sustained in an enforcement proceeding brought by the Commission. Illinois Central R. Co. v. Interstate Commerce Comm’n, 206 U. S. 441. Thereafter, some reparation claims were settled, and Phillips, which had not been a complainant before the Commission, commenced its reparation action. The Court reasoned that if Phillips could not rely on the Commission order, shippers prevailing before the Commission would obtain a preference as compared to nonparticipating shippers. Therefore, the Court ruled that if:

“there was a finding of unreasonableness in the proceedings begun by others, [the nonparticipating shipper] could, if in time, present his claim, and await the result of the litigation over the validity of any order made at the instance of those parties. If it was ultimately sustained by the court as valid he would then be in position to obtain reparation from the Commission — or a judgment from a court of competent jurisdiction, on a claim that had been seasonably presented.” 236 U. S., at 666.

The Phillips case thus contemplates that the suit of a nonparticipating shipper is to await the outcome of litigation over the validity of the Commission order and that the nonparticipating shipper may rely on the Commission’s order only when the policy of uniformity will thereby be served.

It might still be argued that disparity in treatment of shippers would result in cases involving multiple complainants before the Commission. The several shippers could commence separate enforcement actions in different courts, and those courts might disagree concerning the validity of the Commission’s order. But such conflicts could be completely avoided only by limiting review on the question of statutory violation to a single suit by a carrier to set aside the Commission’s order, and the long and unvarying course of decisions permitting review in the enforcement court precludes our limiting review to § 17 (9) proceedings. Southern R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297; Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370; Adams v. Mills, 286 U. S. 397; Brown Lumber Co. v. Louisville & N. R. Co., 299 U. S. 393; Porter Co. v. Central Vermont R. Co., 366 U. S. 272, 274, n. 6 (dictum). In any event, we do not believe that in practice such conflicts will frequently occur. If the first enforcement court to issue its decision sustains the Commission order, that decision will generally be accepted as persuasive authority by other courts. Such conflicts as do occur will be similar to those that may arise when, in a suit commenced in court under § 9, the primary jurisdiction doctrine is not applicable and the court is free to decide questions under the Act as an original matter; and such conflicts may ultimately be resolved here. If the first court to reach a decision strikes down the Commission order, it may do so on grounds permitting reconsideration of the matter by the Commission. When the primary jurisdiction doctrine requires initial decision by the Commission, it also precludes the court from redetermining the question itself should the Commission decision be defective. The proper course is to remand to the Commission, Southern R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297, 302; Louisville & Nashville R. Co. v. Behlmer, 175 U. S. 648; compare United States v. Jones, 336 U. S. 641, 651-653, 670-671, with United States v. Bianchi & Co., 373 U. S. 709, 718, which has continuing power to suspend or to modify its orders, Interstate Commerce Act § 16 (6), 49 U. S. C. §16(6) (1964 ed.). The carrier will naturally request the Commission to reopen the prior order as to all shippers. See Baldwin v. Milling Co., 307 U. S. 478; but cf. Gulf, M. & N. R. Co. v. Merchants’ Specialty Co., 50 F. 2d 21 (C. A. 5th Cir. 1931). In some cases, however, a decision refusing to enforce the Commission’s order will finally determine its validity as between the parties to that action without any necessity for a remand to the Commission. Here too the first adjudication will generally be persuasive and, if not, conflicting decisions may be reviewed in this Court. Finally, under the interpretation of §§ 16 (2) and 17 (9) that we elaborate below the carrier may bring a direct review proceeding as a cross-action in the forum selected by a shipper, thus ensuring that the court will have power to affect the order itself and thereby maintain uniformity as between shippers.

VI.

Recent decisions of this Court have recognized that Commission orders determining a “right or obligation” so that “legal consequences” will flow therefrom are judicially reviewable. Pennsylvania R. Co. v. United States, 363 U. S. 202, 205; Rochester Telephone Corp. v. United States, 307 U. S. 125, 131, 132, 143. Such review “is equally available whether a Commission order relates to past or future rates, or whether its proceeding follows referral by a court or originates with the Commission.” Pennsylvania R. Co. v. United States, supra, at 205. Under these established principles the order attacked in this case is unquestionably subject to review, and in Pennsylvania R. Co. v. United States, supra, and United States v. Interstate Commerce Comm’n, 337 U. S. 426, similar orders were held reviewable in direct proceedings.

The question before us now, however, is not whether review is to be afforded but where that review is to occur. In the three preceding sections of this opinion we have established three conclusions that must serve as guideposts for our decision of that question. First, respondents have ample opportunity to secure review of the Commission’s order through defense of the shipper’s enforcement action. By contrast, the Pennsylvania R. Co. and Interstate Commerce Comm’n cases dealt with situations where the order in dispute could only be reviewed in § 17 (9) proceedings, and those cases thus do not control decision here. Second, allowing respondents the alternative of bringing direct review proceedings would substantially impair the shipper’s § 16 (2) right to select a convenient venue. Third, contrary to respondents’ contention, limiting review to the enforcement action would not be likely to result in disparity in treatment of shippers. If, therefore, review can be limited to the enforcement forum selected by the shipper consistent with the language and history of the provisions establishing the direct review proceeding, we should adopt that course.

During the first 19 years of the Commission’s existence its orders were not reviewable through direct proceedings. Until 1906, noncompliance with a Commission order did not expose a carrier to immediate sanctions; an order was enforceable only after judicial proceedings in which the carrier could challenge its validity. The Hepburn Act imposed penalties of $5,000 a day for violation of Commission orders and “[t]he statutory jurisdiction to enjoin and set aside an order was granted in 1906, because then, for the first time, the rate-making power was conferred upon the Commission, and then disobedience of its orders was first made punishable,” United States v. Los Angeles R. Co., 273 U. S. 299, 309; see also 40 Cong. Rec. 5133 (remarks of Senator Foraker). Thus the genesis of the direct review proceeding was the desire to afford an injunctive remedy for persons faced with the threat of irreparable injury through exposure to liability for mounting penalties without any other opportunity for judicial review until the Commission or some interested party should choose to commence enforcement proceedings. Compare Ex parte Young, 209 U. S. 123, 147-148. The essentially equitable nature of the direct review proceeding was remarked in early cases denying review of “negative orders” that did not command any action by the carrier and therefore did not threaten the carrier with any sanctions. Compare United States v. Los Angeles R. Co., 273 U. S. 299, with Rochester Tel. Corp. v. United States, 307 U. S. 125. Similarly, as the per diem penalties do not apply to noncompliance with orders for the payment of money, two of the three courts to have considered the issue presented in the case at bar denied carriers direct review on the ground that no equitable cause of action had been stated. Pittsburgh & W. V. R. Co. v. United, States, 6 F. 2d 646, 648-649 (D. C. W. D. Pa. 1924); Baltimore & O. R. Co. v. United States, 12 F. Supp. 261, 263 (D. C. D. Del. 1935), appeal dismissed, 87 F. 2d 605 (C. A. 3d Cir. 1937); contra, Southern R. Co. v. United States, 193 F. 664 (Commerce Ct. 1911). And decisions sustaining direct review of reparation orders have stressed the absence of alternative means for obtaining review — in equity terms, inadequacy of remedies at law. See, supra, at pp. 587-588.

As the principles stated at the beginning of this section demonstrate, the test of reviewability is no longer pregnant with the concept of irreparable injury to the same extent as when the negative order doctrine held sway, and we do not mean to resurrect the strict equity approach. This history nevertheless establishes that the main concern of Congress in creating the direct review proceeding was with orders that were “self-enforcing” in the sense of exposing recalcitrant carriers to substantial monetary penalties. The legislative history permits absolutely no inference that Congress intended to undercut the shipper’s remedies in the enforcement action. To the contrary, the Hepburn Act simplified those enforcement procedures so as to provide additional assistance to shippers. H. R. Rep. No. 591, 59th Cong., 1st Sess., p. 5; 40 Cong. Rec. 2256 (remarks.of Congressman Hepburn). Moreover, the equitable nature of the direct review proceedings certainly affords ample basis for requiring the direct review court to defer its proceedings pending the outcome of the enforcement action, a course that is consistent with the legislative history of the direct review proceeding and that will maximize the remedial purposes of § 16 (2).

Lest there be any misunderstanding, we emphasize that our reasons for finding the direct review proceeding unavailable in a case such as this where the carriers began that proceeding in a forum other than that selected by the shipper for its enforcement action are inapplicable when the direct review proceeding is brought as a cross-action in the enforcement court. Obviously allowance of the cross-action will not impair the shipper’s venue right. And we think that the § 16 (2) provisions respecting court costs and attorney’s fees unquestionably would be applicable to the whole of the combined action in such a case. The Commission argues, nevertheless, that reparation orders respecting past rates are not of sufficient general importance to require their defense by the United States and the Commission, and that the direct review proceeding should not be permitted regardless of the court in which it is brought. That apparently is not the view of Congress, however, for when it provided in 1964 that review of Commission orders entered on reference of primary jurisdiction issues should be had only in the court making the reference, 28 U. S. C. §§ 1336 (b) and 1398 (b) (1964 ed.), it did so by placing jurisdiction and venue of the direct review proceeding in that court, see generally S. Rep. No. 1394, 88th Cong., 2d Sess. (1964), in 1964-2 U. S. Code Cong, and Admin. News 3235, rather than by providing for review as an incident of the original action. See also Brief for the United States in Pennsylvania R. Co. v. United States (No. 451 O. T. 1959), 7-9, 21-22. As we indicated in the preceding section, in some cases there will be some advantage for purposes of assuring the uniform application of the Act in the courts having jurisdiction to directly affect the Commission's order, and we see no justifiable reason for preventing the carrier from bringing the United States into the enforcement court should it so desire.

The proceeding before us, however, was not brought in the enforcement court. Indeed, proceedings in the latter court have been deferred pending the outcome of this case. For the reasons stated herein, the District Court erred in entertaining respondents’ action and the judgment of the Court of Appeals sustaining the District Court must be

Reversed.

Mr. Justice Douglas concurs in the result.

Mr. Justice Black took no part in the consideration or decision of this case.

       The relevant text of the provisions discussed in text above reads as follows:
      “§ 8. Liability in damages to persons injured by violation of law.
      “In case any common carrier subject to the provisions of this chapter shall do, cause to be done, or permit to be done any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every ease of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.
      “§ 9. Remedies of persons damaged; election; witnesses.
      “Any person or persons claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter in any district court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each ease elect which one of the two methods of procedure herein provided for he or they will adopt. . . .

      “§ 13. Complaints to and investigations by Commission.
      “(1) Complaint to Commission of violation of law by carrier; reparation; investigation.
      “Any person, firm, corporation, company, or association, or any mercantile, agricultural, or manufacturing society or other organization, or any body politic or municipal organization, or any common carrier complaining of anything done or omitted to be done by any common carrier subject to the provisions of this chapter in contravention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts; whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing, within a reasonable time, to be specified by the Commission. If such common carrier within the time specified shall make reparation for the injury alleged to have been done, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier or carriers shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper.

      “§ 16. Orders of Commission and enforcement thereof.
      “(1) Award of damages.
      “If, after hearing on a complaint made as provided in section 13 of this title, the Commission shall determine that anj^ party complainant is entitled to an award of damages under the provisions of this chapter for a violation thereof, the Commission shall make an order directing the carrier to pay to the complainant the sum- to which he is entitled on or before a day named.
      “(2) Proceedings in courts to enforce orders; costs; attorney’s fee.
      “If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the district court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any State court of general jurisdiction having jurisdiction of the parties, a complaint setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and except that the plaintiff shall not be liable for costs in the district court nor for costs at any subsequent state of the proceedings unless they accrue upon his appeal. If the plaintiff shall finally prevail he shall be allowed a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the suit.” Interstate Commerce Act §§ 8, 9, 13 (1) and 16 (1) and (2), 49 U. S. C. §§ 8, 9,13 (1) and 16 (1) and (2) (1964 ed.).

       “§ 17 (9) Judicial relief from decisions, etc., upon denial or other disposition of application for rehearing, etc.
      “When an application for rehearing, reargument, or reconsideration of any decision, order, or requirement of a division, an individual Commissioner, or a board with respect to any matter assigned or referred to him or it shall have been made and shall have been denied, or after rehearing, reargument, or reconsideration otherwise disposed of, by the Commission or an appellate division, a suit to enforce, enjoin, suspend, or set aside such decision, order, or requirement, in whole or in part, may be brought in a court of the United States under those provisions of law applicable in the case of suits to enforce, enjoin, suspend, or set aside orders of the Commission, but not otherwise.” Interstate Commerce Act § 17 (9), 49 U. S. C. §17 (9) (1964 ed.).
      This provision was not added until 1940, Transportation Act of 1940, 54 Stat. 916, and is basically a provision requiring exhaustion of administrative remedies prior to resort to the courts. The first provision for direct judicial review of Commission orders appeared in §5 of the Hepburn Act of 1906, 34 Stat. 590, 592, which was phrased in terms of venue only. For ease of reference, we will refer to direct review proceedings as § 17 (9) proceedings.

       The above-described provisions of. the Judicial Code read in pertinent part:
      “§ 1336. Interstate Commerce Commission’s orders.
      “(a) Except, as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in any part, any order of the Interstate Commerce Commission.

      “§ 1398. Interstate Commerce Commission’s orders.
      “(a) Except as otherwise provided by law, any civil action to enforce, suspend or set aside in whole or in part an order of the Interstate Commerce Commission shall be brought only in the judicial district wherein is the residence or principal office of any of the parties bringing such action.

      “§2321. Procedure generally; process.
      “The procedure in the district courts in actions to enforce, suspend, enjoin, annul or set aside in whole or in part any order of the Interstate Commerce Commission other than for the payment of money or the collection of fines, penalties and forfeitures, shall be as provided in this chapter. . . .
      “§ 2322. United States as party.
      “All actions specified in section 2321 of this title shall be brought by or against the United States.
      “§2323. Duties of Attorney General; intervenors.
      “The Attorney General shall represent the Government in the actions specified in section 2321 of this title ... in the district courts, and in the Supreme Court of the United States upon appeal from the district courts.
      “The Interstate Commerce Commission and any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties of their own motion and as of right, and be represented by their counsel, in any action involving the validity of such order or requirement or any part thereof, and the interest of'such party. . . .

      “§2325. Injunctions; three-judge court required.
      “An interlocutory or permanent injunction restraining the enforcement, operation or execution, in whole or in part, of any order of the Interstate Commerce Commission shall not be granted unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.” 28 U. S. C. §§1336 (a), 1398 (a), 2321-2323, 2325 (1964 ed.).

       As is readily apparent from this opinion, the statutory provisions governing this case and the companion case, Console>, post, are an historical patchwork subject to more than one interpretation. The entire matter is surely ripe for congressional consideration, for it is of continuing significance and the competing considerations of yesterday may not be those of overriding importance today.

       Frequent Commission practice, illustrated by the procedure adopted in the present case, is to separate from the issue of shipper’s damages issues respecting the existence of a statutory violation and the availability of statutory defenses such as the statute of limitations defense asserted by respondents and to try the latter issues first. The core of the dispute here concerns the forum for review of Commission findings on such issues of violation and limitations.

       Section 16 (2), of course, does not limit the carrier to introducing opposing evidence to rebut the prima facie effect of the Commission’s order. It may also challenge the admissibility of the order on the grounds, for example, that the Commission did not afford the carrier a fair hearing or that the order was not based upon substantial evidence, Spiller v. Atchison, T. & S. F. R. Co., 253 U. S. 117, 126. But if a Commission order containing findings on all matters essential to the shipper’s recovery is admitted and the carrier produces no opposing evidence, the findings and order of the Commission may not be rejected by the jury and the shipper is entitled to judgment. Meeker v. Lehigh Valley R. Co., 236 U. S. 434, 439; see Pennsylvania R. Co. v. Jacoby & Co., 242 U. S. 89, 94 (dictum).

       In Louisville & Nashville R. Co. v. Sloss-Sheffield Co., 269 U. S. 217, the Court considered a carrier’s statute of limitations defense on review of a judgment for the shipper in a § 16 (2) enforcement action. Accord, Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412. Thus, it would seem beyond question that respondents here could have presented in Thomson’s New York action the defense on which they prevailed in the courts below.

       Venue of suits to set aside the Commission’s order is limited by 28 U. S. C. § 1398 (1964 ed.) to the district in which the party bringing the action has its residence or principal office. Section 16 (2) provides for venue in the district where the shipper resides “or in which is located the principal operating office of the carrier, or through which the road of the carrier runs . . . .” As § 16 (2) does not expressly provide for venue in the district in which the carrier resides and that district may not coincide with one of the districts that are listed, it would appear that in some cases in which the carrier elects to file its § 17 (9) action in the district of its residence, rather than the district of its principal office, the district chosen by the carrier will not be one where the shipper could originally have brought suit. It was primarily similar venue problems that prompted enactment in 1964 of 28 U. S. C. § 1336 (b), which provides that exclusive jurisdiction of a § 17 (9) action to set aside a Commission order arising out of a primary jurisdiction reference to the Commission shall be vested in the referring court. 1964-2 U. S. Code Cong, and Admin. News 3235-3239. When the § 17 (9) action is filed first, however, venue difficulties are less likely to occur as the § 16 (2) venue provisions are in general broader than those applicable to § 17 (9) actions. In any event, venue objections may perhaps be overcome by transfer of the § 17 (9) action, 28 U. S. C. § 1404 (1964 ed.), or by application of the doctrine of waiver, see 3 Moore, Federal Practice ¶ 13.16, at p. 45 (2d ed. 1964) (venue of counterclaims by interveners).

       “Except as otherwise provided by law,” 28 TJ. S. C. § 1398 (a) (1964 ed.), quoted, supra, n. 3, limits venue of direct review proceedings to the judicial district of the residence or principal place of business of the party bringing the action. Since we interpret § 16 (2) as precluding a carrier from bringing an enforcement action in any court but the enforcement court, that section provides venue for the carrier’s cross-action under the “except as otherwise provided by law” provision of § 1398 (a). In the rare cases when the enforcement action is brought in state, rather than federal, court it will of course not be possible for the carrier to bring a § 17 (9) cross-action.


source: Caselaw Access Project

license: Public Domain

text:
    CONSOLO v. FEDERAL MARITIME COMMISSION et al.
    No. 63.
    Argued December 6-7, 1965.
    Decided March 22, 1966.

      Robert N. Kharasch argued the cause for petitioner. With him on the briefs were William J. Lippman and Amy Scupi.

      Richard A. Posner argued the cause for the Federal Maritime Commission and the United States, pro hac vice, by special leave of Court. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Turner, Irwin A. Seibel, Milan C. Miskovsky and Walter H. Mayo III.

      J. Alton Boyer argued the cause for respondent Flota Mercante Grancolombiana, S. A. With him on the brief was Odell Kominers.

   Mr. Justice White

delivered the opinion of the Court.

We have been asked, in this case, to determine whether the Court of Appeals had jurisdiction to set aside a reparation order of the Federal Maritime Commission which was before it upon the consolidated appeals of the shipper and the carrier, the shipper asking that the award be increased and the carrier asking that it be set aside. In addition, we have been asked to determine whether the Court of Appeals applied the proper standard of review when it set aside the reparation award. We answer the first question in the affirmative and the second in the negative. Accordingly, we reverse.

Flota Mercante Grancolombiana, S. A. (Flota) is a common carrier engaged in carrying bananas from South America to the United States. In July 1955, it entered into an exclusive two-year carrying contract with Panama Ecuador, a banana shipper, and gave Panama Ecuador an option to renew the contract for an additional three years, subject to its meeting the rate offered by any other shipper. This exclusive contract was executed after the Federal Maritime Board, in June 1953, had ruled that Flota’s competitor, Grace Line, was a common carrier of bananas and had violated the Shipping Act, 1916, §§14 Fourth and 16 First, by refusing to allocate its banana shipping space equitably among all qualified shippers. In April 1957, the Board reiterated its view that Grace Line had violated the Shipping Act by signing exclusive carrying contracts and it ordered Grace Line to offer to all qualified shippers, upon a fair basis, shipping space on forward-booking contracts not to exceed two years in length. One month after this ruling Flota rejected a bid by Consolo, a banana shipper competing with Panama Ecuador, for the entire shipping space and honored the option given Panama Ecuador by executing to it a three-year exclusive carrying contract. Shortly thereafter Consolo demanded a “fair and reasonable” amount of the carrying space pursuant to the previous Grace Line decisions of the Board and threatened to file a complaint if its demand were rejected. Flota rejected the demand and itself filed a petition before the Board for declaratory relief exonerating it from liability to Consolo. Consolo followed with a complaint before the Board asking for damages. These proceedings were consolidated and, in June 1959, the Board ruled that Flota’s three-year exclusive contract with Panama Ecuador violated the Shipping Act, §§14 Fourth and 16 First, and it ordered Flota to allocate its space fairly among all qualified banana shippers. Pursuant to § 2 (c) of the Administrative Orders Review Act (64 Stat. 1129, as amended, 5 U. S. C. § 1032 (c) (1964 ed.)), Flota petitioned the Court of Appeals for the District of Columbia Circuit to set aside this order. This appeal was stayed, pending determination of the reparations proceeding. In March 1961, the Board ordered Flota to pay Consolo certain reparations for the violation of the Shipping Act. Both Flota and Consolo appealed from this reparation order and each intervened in the appeal of the other, Consolo asking that the reparation award be increased and Flota asking that it be set aside. These appeals were consolidated together with Flota’s appeal to set aside the Board’s finding of a violation of the Shipping Act.

The Court of Appeals held that it had jurisdiction to consider these appeals. It affirmed the Board’s finding that Flota had violated the Shipping Act but remanded to the Board the issue of reparations so that it could “consider whether, under all the circumstances, it is inequitable to force Flota to pay reparations . ...” On remand the Federal Maritime Commission concluded that it was not inequitable to require Flota to pay Consolo reparations, although it did reduce the amount of the award. Again, both Flota and Consolo appealed to the Court of Appeals for the District of Columbia Circuit, each intervened in the appeal of the other, and the two appeals were consolidated. Again Consolo maintained that the award was too small and Flota argued that it should be set aside in part or in whole. The Court of Appeals reversed and vacated the reparation award, concluding that “[i]n view of the-substantial evidence showing that it would be inequitable to assess damages against Flota in favor of Consolo, . . . the Commission abused the discretion granted it under Section 22 of the Shipping Act [to issue reparation awards] . . . 119 U. S. App. D. C. 345, 352, 342 F. 2d 924, 931. Consolo petitioned this Court for a writ of certiorari to review that decision, which we granted. 381 U. S. 933.

I.

The first question we have is whether the Court of Appeals had jurisdiction of the appeals filed by Consolo and Flota.

As we read the controlling statutory provisions, it seems clear that the Court of Appeals had jurisdiction to consider Consolo’s direct appeal from the Commission’s reparation order granting only part of the relief requested. Section 2 of the Administrative Orders Review Act (5 U. S. C. § 1032 (1964 ed.)) gives the courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of ... (c) such final orders of the . . . Federal Maritime Board ... as are now subject to judicial review pursuant to the provisions of section 830 of Title 46 . . . .” Section 830 of Title 46 (§ 31 of the Shipping Act, 1916, 39 Stat. 738, as amended), in turn, says that, “except as otherwise provided,” orders of the Federal Maritime Board are reviewable pursuant to the same procedures as are available “in similar suits in regard to orders of the Interstate Commerce Commission Accordingly, if pursuant to provisions in the Interstate Commerce Act a shipper can bring a direct review proceeding to challenge the adequacy of a reparation award issued by the Interstate Commerce Commission, he should be permitted to bring a similar proceeding to challenge the adequacy of a reparation award from the Federal Maritime Commission, subject of course to any special provisions applicable to maritime cases such as the provision in § 2 of the Administrative Orders Review Act that direct review proceedings shall be conducted in the courts of appeals rather than the district courts.

The Court has previously held that an order of the Interstate Commerce Commission denying a shipper’s reparation claim is subject to direct review at the instance of the shipper, United States v. Interstate Comm erce Comm’n, 337 U. S. 426, primarily because the adverse order would be wholly unreviewable unless the shipper is permitted to bring an appeal. See Rochester Tel. Corp. v. United States, 307 U. S. 125. Likewise, in D. L. Piazza Co. v. West Coast Line, Inc., 210 F. 2d 947, cert. denied, 348 U. S. 839, the Court of Appeals for the Second Circuit was of the opinion that the principles of United States v. Interstate Commerce Comm’n were authority for allowing the shipper to seek direct review of an order of the Federal Maritime Board denying a major part, but not all, of the shipper’s reparation claim. We think Piazza was correct in this respect and we accordingly agree with the court below that it would have jurisdiction to consider Consolo’s appeal.

As for Flota’s appeal, much of what we have said in Interstate Commerce Comm’n v. Atlantic Coast Line R. Co., decided today, is pertinent to our consideration here. In that case, where direct review had not been sought by the shipper, we held that the carrier may have review of a reparation order of the Interstate Commerce Commission only in connection with the shipper’s enforcement action under § 16 (2) of the Interstate Commerce Act. Section 30 of the Shipping Act, 39 Stat. 737, as amended, provides for a similar action by the shipper to enforce a reparation award by the Maritime Commission and extends certain procedural advantages to the shipper generally comparable to those provided by § 16 (2) of the Interstate Commerce Act. He has a wide scope of venue; he is not liable for costs unless they accrue on his own appeal; he is allowed reasonable attorney fees if he ultimately prevails; he is the beneficiary of broad service of process and joinder provisions; and the findings and order of the Commission are given prima facie effect in the enforcement action. These advantages were given to the shipper because he was considered generally to be the weaker party in the controversy and he serves an important role in the enforcement of the Shipping Act. It was to protect advantages similar to these by preventing the carrier from emasculating the enforcement action that we concluded in Interstate Commerce Comm’n v. Atlantic Coast Line R. Co., that the carrier could not seek review of the reparation award except in connection with a shipper’s enforcement action. It is readily apparent, we think, that this holding is applicable to Shipping Act cases when the shipper himself has not sought direct review in the Court of Appeals.

Here, however, the jurisdiction of the Court of Appeals has been invoked by the shipper, who seeks to increase the amount of his damages. In these circumstances, we find nothing in the Shipping Act or the Administrative Orders Review Act that would prevent the Court of Appeals from also considering Flota’s request, either as a consolidated appeal pursuant to § 2 of the Administrative Orders Review Act or as an intervenor’s cross-claim, to have the reparation order set aside or reduced, a result which will not, in our view, substantially impair the procedural advantages intended for a shipper under § 30.

Concerning venue, the shipper will still be able to select the forum. Although the venue provisions governing an appeal are somewhat different from those governing an enforcement suit, the shipper still has relatively wide opportunities to find a convenient forum. Section 3 of the Administrative Orders Review Act (64 Stat. 1130, 5 U. S. C. § 1033 (1964 ed.)) enables the petitioner to bring suit in the judicial circuit where he resides, where his principal office is located or in the District of Columbia. By requiring that the carrier’s review proceeding be brought in the court selected by the shipper for his appeal, all the issues in the controversy will be tried in a relatively convenient forum for the shipper.

The shipper will not have the benefit in a direct review of those provisions in § 30 that exempt him from his costs and enable him to collect his attorney’s fees if he ultimately prevails. However, the only additional costs and attorney’s fees that the shipper will incur if the carrier is permitted to., challenge the reparation award upon a consolidated appeal or cross-claim are those costs and fees attributable to additional issues not otherwise raised by the shipper’s appeal. To the extent the arguments a carrier may advance to decrease or set aside an award would be asserted in any event as defenses to the shipper’s claim for increased reparations, no additional costs or fees will be incurred beyond those which the shipper would normally assume for his appeal. And, if the shipper prevails against the carrier’s appeal, any additional costs, although not attorney’s fees, as. are incurred may be assessed against the carrier as the losing party under 28 U. S. C. § 1912 (1964 ed.). See also District of Columbia Cir. R. 20 (b).

The minimal disadvantages resulting to the shipper from permitting, the carrier to attack the reparation order are more than offset by the desirability of a prompt and efficient determination of the validity of the Commission’s order. Many of the arguments a carrier might make in defense against a shipper’s suit to increase the award could also be advanced to show that the award should be reduced or set aside entirely. And, once the carrier intervenes in the shipper’s appeal, all the parties interested in the complete resolution of the validity of the Commission’s order are before the court. In this situation it would make little sense to require the carrier to break off his argument short of its logical conclusion and relitigate it anew before a district court in an enforcement action.

With the jurisdiction of the Court of Appeals properly-invoked by the shipper, there is, therefore, every reason to permit the carrier not only to litigate the amount of the reparation order but also to insist upon a determination of the validity of the Commission’s order, both with respect to the carrier’s violation of the Act and with respect to the reparation award itself. If the carrier finally prevails on either of these claims, there would then be no occasion for a separate enforcement suit in the District Court. If the carrier’s claims going to the validity of the order are rejected by the Court of Appeals, the determination of a violation by the carrier would be binding in the subsequent enforcement action by the shipper; nor would there be any basis in the course of a subsequent enforcement action conducted in accordance with § 30 to redetermine whether or not the award itself is supported by substantial evidence in the administrative record. Hence, the shipper will need to litigate the issue of validity only once, and this in the Court of Appeals at the instance of the carrier. Although two proceedings may be required to collect his damages, this is only a necessary incident of the shipper’s decision to bring his appeal in the first place.

In short, although a shipper may lose some of the procedural advantages given him by § 30 if he is forced to defend the validity of the Commission’s order in conjunction with his appeal, these losses generally will not be substantial. To the extent that he is disadvantaged, this is the result of a conscious choice he has made. And from the point of view of the enforcement of the Shipping Act, it is certainly less important that the shipper be assisted in his efforts to obtain a greater award than it is to assist him in his efforts to enforce an existing award. The Court of Appeals was correct in sustaining its own jurisdiction to hear Flota’s appeal.

II.

We turn, then, to the standard of review used by the Court of Appeals when it reversed the Commission’s reparation order.

The Court of Appeals rejected the Commission’s finding that it would not be inequitable to award Consolo reparations because it felt this finding “ignores ... the substantial weight of the evidence . . . .” 119 U. S. App. D. C. 345, 347, 342 F. 2d 924, 926. It then concluded that the Commission abused its discretion in ordering reparations because “of the substantial evidence showing that [the reparations] would be inequitable.” Id., at 352, 342 F. 2d, at 931. In effect, the standard of review applied and articulated by the Court of Appeals in this case was that if “substantial evidence” or “the substantial evidence” supports a conclusion contrary to that reached by the Commission, then the Commission must be reversed. This standard is not consistent with that provided by the Administrative Procedure Act.

Section 10 (e) of the Administrative Procedure Act (60 Stat. 243, 5 U. S. C. § 1009 (e) (1964 ed.)) gives a reviewing court authority to “set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, [or] an abuse of discretion . . . [or] (5) unsupported by substantial evidence . . . .” Cf. United States v. Interstate Commerce Comm’n, 91 U. S. App. D. C. 178, 183-184, 198 F. 2d 958, 963-964, cert. denied, 344 U. S. 893. We have defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 229. “[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Labor Board v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Labor Board v. Nevada Consolidated Copper Corp., 316 U. S. 105, 106; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F. 2d 18, 21.

Congress was very deliberate in adopting this standard of review. It . frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute. These policies are particularly important when a court is asked to review an agency’s fashioning of discretionary relief. In this area agency determinations frequently rest upon a complex and hard-to-review mix of considerations. By giving the agency discretionary power to fashion remedies, Congress places a premium upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency. These policies would be damaged by the standard of review articulated by the court below.

Ordinarily we would be inclined to remand to the ' Court of Appeals for further consideration in light of the standard of review established by the Administrative Procedure Act. Universal Camera Corp. v. Labor Board, 340 U. S. 474; Labor Board v. Walton Mfg. Co., 369 U. S. 404. However, in view of the fact that this controversy already dates back more than eight years, that it has been before the Court of Appeals twice and that the relevant standard is not hard to apply in this instance, we think this controversy had better terminate now. See O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504.

Section 22 of the Shipping Act, 1916, provides that “The Board . . . may direct the payment ... of full reparation to the complainant for the injury caused by such violation.” 46 U. S. C. § 821 (1964 ed.). (Emphasis added.) This contemplates that the Commission shall have a certain amount of discretion, but it does not specify what factors are to be considered by the Commission in exercising this discretion. However, we assume that the Commission could validly consider such factors as whether a reparation award would enhance the enforcement of the Act, whether the shipper had suffered compensable injury and whether the award of reparations would be consistent with the previous application of the Act, as well as the factor of culpability of the carrier. Hence, even if the carrier’s conduct were such that it would be inequitable to require it to pay a reparation award, this by itself might not be sufficient to establish that the Commission abused its discretion under the Act. However, we need not rest upon this distinction because we feel that it is clear that there is substantial evidence in the record, considered as a whole, to support the Commission’s findings that it would not be inequitable in this case to require Flota to pay Consolo reparations.

The Maritime Board determined, and the Court of Appeals agreed, that Flota had been guilty of “unfairly” or “unjustly” discriminating against Consolo and of giving an “undue unreasonable preference” to Panama Ecuador in violation of § 14 Fourth and § 16 First of the Shipping Act. These findings, which were essential to the determination that Flota had violated the Shipping Act, substantially undercut any equities that Flota might claim. Nevertheless, the Court of Appeals considered it inequitable to make Flota pay reparations because Flota might have believed, in view of the unsettled law, that it was not illegal to exclude Consolo.

Prior to Flota’s rejection of Consolo’s request for a fair portion of the shipping space, the Federal Maritime Board had decided only two cases relevant to this issue: Consolo v. Grace Line, supra, and Banana Distributors, Inc. v. Grace Line, supra. Both cases held invalid exclusive dealing contracts similar to the one in question here. The Court of Appeals would minimize these two cases as precedents because no order was issued in the first Grace Line decision and the second Grace Line decision was ultimately reversed and remanded by the Court of Appeals for the Second Circuit. Nevertheless, at the time Flota entered into the 1957 exclusive contract with Panama Ecuador and at the time it rejected Consolo’s request for a fair share of the shipping space, these decisions were authoritative pronouncements by the agency primarily responsible for administering and interpreting the Shipping Act. And, although the second Grace Line decision was ultimately reversed and remanded, upon reconsideration the Board still found the exclusive contract there in question to be illegal and that decision was ultimately affirmed upon appeal to the Second Circuit.

As further evidence of good faith, the Court of Appeals was of the opinion that Flota could reasonably have believed its situation was different from that presented to the Board in the Grace Line cases because of physical differences between its vessels and those owned by Grace Line. However, in its first decision affirming the Board’s finding of a violation the Court of Appeals had affirmed that the record “adequately supported” the Board’s finding that “the differences between Flota’s vessels and Grace’s vessels are not impressive.” 112 U. S. App. D. C. 302, 307, 302 F. 2d 887, 892. We think the Court’s first judgment was the correct one. The record is adequate to establish that Flota took a deliberate, and we think substantial, risk when it gambled that the previous contrary precedent could be distinguished. We agree with the Commission that there is nothing inhering in this situation that would make it inequitable to require Flota to pay reparations.

Nor do we feel the record reveals that the reparation award is inequitable because Flota had asked for declaratory relief or because that request was pending before the Board for almost two years. In the first place, Flota did not request declaratory relief until after it had entered into the offending exclusive-dealing contract with Panama Ecuador and until it became clear that Consolo was going to sue anyway. Under these circumstances, the Commission was justifiably skeptical about Flota’s motives in bringing suit. Further, although Flota’s suit was pending for about two years, the record indicates that much of the delay involved in this case was at the request or approval of Flota. At any rate, it has never been the law that a litigant is absolved from liability for that time during which his litigation is pending. Labor Board v. Electric Cleaner Co., 315 U. S. 685; Louisville & Nashville R. Co. v. Sloss-Sheffield Co., 269 U. S. 217. During this time Flota was able to postpone the predictable demise of its discriminatory contract and Consolo continued to suffer injury.

Similarly, we do not believe that Flota acquired any “equities” by being caught between the conflicting demands of Consolo and Panama Ecuador. Not only was this a dilemma of Flota’s own making, but in 1958 Flota rejected an opportunity to escape it. At that time Panama Ecuador announced that it was going to cancel the contract unless Flota reduced its rates. Although believing itself under no legal obligation to reduce rates, Flota nevertheless did so in order to perpetuate the illegal exclusive-dealing contract with Panama Ecuador. Finally, there was a provision in Flota’s contract with Panama Ecuador that absolved Flota from liability for refusing to comply with the contract if it was illegal. Although absolution of liability depended upon the contract being declared, in fact, illegal, in light of the previous Grace Line decisions we think this would have' been the more reasonable course of action.

Finally we reject the argument that Flota did not benefit from its policy of excluding Consolo and that Consolo lost “only” expected profits. There is evidence in the record that Flota considered its exclusive-dealing contract with Panama Ecuador more profitable than would have been a multiple contract with several shippers. If Flota did not believe there was an advantage in retaining its exclusive contract with Panama Ecuador it is reasonable to think that it would have taken the opportunity given it in 1958 by Panama Ecuador to cancel that contract and offer space equitably to all shippers. Furthermore, we think the court below wrongly minimized the sting of losing expected profits resulting from being unjustly and illegally denied shipping space. Such a loss is real and it is certainly compensable under the Shipping Act. See McLean v. Denver & Rio Grande R. Co., 203 U. S. 38, 48-49; Roberto Hernandez, Inc. v. Arnold Bernstein Schiffahrtsgesellschaft, M. B. H., 116 F. 2d 849, cert. denied, sub nom. Compania Espanola de Navegacion Maritima, S. A. v. Roberto Hernandez, Inc., 313 U. S. 582.

Without further belaboring this issue, suffice it to say that there is substantial evidence in the record considered as a whole for the Commission to conclude that, “Flota initiated and pursued the unlawful act without good cause and without a satisfactory showing of good faith, and we have been unable, except as noted, to find any equity in its contentions whether viewed separately or together.” This being so, it was clear error on the part of the Court of Appeals to reverse the Commission’s award of reparations. Reversed.

Mr. Justice Black took no part in the consideration or decision of this case.

       “§ 14 Fourth. [No common carrier by water shall] Make any unfair or unjustly discriminatory contract with any shipper based on the volume of freight offered, or unfairly treat or unjustly discriminate against any shipper in the matter of (a) cargo space accommodations or other facilities, due regard being had for the proper loading of the vessel and the available tonnage; (b) the loading and landing of freight in proper condition; or (e) the adjustment and settlement of claims.” 39 Stat. 733, as amended, 46 U. S. C. §812 (1964 ed.).

       “§ 16 First. [It shall be unlawful for any common carrier by water] To make or give any undue or unreasonable preference or advantage to any particular person, locality, or description of traffic in any respect, whatsoever, or to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever 39 Stat. 734, as amended, 46 U. S. C. §815 (1964 ed.).

        Philip B. Consolo v. Grace Line Inc., 4 F. M. B. 293 (1953). No order was issued pursuant to this report.

        Banana Distributors, Inc. v. Grace Line Inc., 5 F. M. B. 278 (1957). This decision predicated liability upon the theory that bananas were “susceptible to common carriage'’ and could be carried by a carrier only under terms of common carriage. This decision was reversed and remanded by the Second Circuit, 263 F. 2d 709. On remand the Board dropped its “susceptibility” theory but nevertheless found Grace Line to be a common carrier under the Shipping Act and held it could not evade the requirements of the Act as to any part of the goods it carried. 5 F. M. B. 615 (1959). This was affirmed by the Second Circuit upon appeal. 280 F. 2d 790, cert. denied, 364 U. S. 933.

       5 F. M. B. 633, 641. This order was issued on July 2, 1959. Flota complied by September 1, 1959.

       6 F. M. B. 262.

       112 U. S. App. D. C. 302, 311, 302 F. 2d 887, 896.

       The functions and duties of the Federal Maritime Board, so far as relevant to this case, were transferred to the Federal Maritime Commission on August 12, 1961. Reorganization Plan No. 7 of 1961, 75 Stat. 840, 46 U. S. C. § 1111, note (1964 ed.).

       7 F. M. C. 635.

       None of the parties challenged, at this time, the jurisdiction of the Court of Appeals to hear these consolidated appeals.

       “Any person may file with the Federal Maritime Board a sworn complaint setting forth any violation of this chapter by a common carrier by water, or other person subject to this chapter, and asking reparation for the injury, if any, caused thereby. ... If the complaint is not satisfied the Board shall, except as otherwise provided in this chapter, investigate it in such manner and by such means, and make such order as it deems proper. The Board, if the complaint is filed within two years after the cause of action accrued, may direct the payment, on or before a day named, of full reparation to the complainant for the injury caused by such violation.” 39 Stat. 736, as amended, 46 U. S. C. § 821 (1964 ed.).

       Much of what we said in Interstate Commerce Comm’n v. Atlantic Coast Line R. Co., ante, is relevant to the jurisdictional issue presented by this case. The Senate Report explaining the Shipping Act expressly observed that the enforcement provisions of the Shipping Act were “modeled very closely after the interstate-commerce act . . . .” S. Rep. No. 689, 64th Cong., 1st Sess., p. 13. That report also counsels that “the administration and enforcement
        provisions of the [interstate commerce] act and the nearly 30 years’ experience of the Interstate Commerce Commission [may] be adapted with slight modifications to the purposes of [the Shipping Act].” Id., p. 12.

       Unlike the Interstate Commerce Commission situation, there is no possibility here that an enforcement, action can be joined with a direct review proceeding (thereby raising the possibility that the favorable provisions of the enforcement section may become applicable and ensuring that the Commission will be a party), because enforcement suits must be in the district courts and direct reviews can be taken only to the courts of appeals.

       These same considerations of judicial economy and fairness to all the parties lie behind the doctrine of ancillary jurisdiction, Moore v. New York Cotton Exchange, 270 U. S. 593; Siler v. Louisville & Nashville R. Co., 213 U. S. 175; 2 Moore, Federal Practice ¶ 8.07 [5] (2d ed. 1965), and the doctrine that an intervenor of right may assert a cross-claim without independent jurisdictional grounds, 4 Moore, Federal Practice ¶ 24.17 (2d ed. 1963).

       Of course, in this case the issue of Flota’s violation of the Act was resolved in a previous direct appeal by Flota from the Board’s cease-and-desist order. There is no question of the jurisdiction of the Court of Appeals to consider that appeal.

       See our discussion of the defenses available to a carrier in an enforcement action at Interstate Commerce Comm’n v. Atlantic Coast Line R. Co., ante, p. 594, n. 6.

       In its first opinion, remanding the issue of reparations to the Commission, the Court of Appeals said, “But in reviewing the evidence [as opposed to reviewing issues of law], we are confined to a much more restricted standard, as the Administrative Procedure Act, § 1 et seq., 5 U. S. C. A. § 1001 et seq., and a long line of Supreme Court decisions, clearly indicate. See, e. g., Universal Camera Corp. v. National Labor Relations Board, 340 U. S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951); United States v. Carolina Freight Carriers Corp., 315 U. S. 475, 489, 62 S. Ct. 722, 86 L. Ed. 971 (1942). We have examined the appeals from the reparations award with these considerations in mind.” 112 U. S. App. D. C. 302, 309, 302 F. 2d 887, 894. However, in its second opinion, when it reviewed the Commission’s finding that it would not be inequitable to award reparations, the Court of Appeals made no reference to the Administrative Procedure Act. The standard of review articulated and apparently applied in that opinion was inconsistent with the Administrative Procedure Act.
      We do not read the opinion below as asserting that the Court of Appeals, in a direct review proceeding, may conduct a de novo review of the equities of a reparation award. We find nothing in the Shipping Act, the Hobbs Act, or the Administrative Procedure Act that would authorize a de novo review in these circumstances, and in the absence of specific statutory authorization, a de novo review is generally not to be presumed. 4 Davis, Administrative Law Treatise §29.08 (1958). See United States v. Carlo Bianchi & Co., Inc., 373 U. S. 709, 715; Morrison-Knudsen Co. v. O’Leary, 288 F. 2d 542, 543-544.

       Although these two cases were decided before the enactment of the Administrative Procedure Act, they are considered authoritative in defining the words “substantial evidence” as used in the Act. 4 Davis, Administrative Law Treatise § 29.02.

       The test of substantial evidence in the record considered as a whole had been applied by some reviewing courts even before Congress acted. See Universal Camera Corp. v. Labor Board, 340 U. S. 474, 483, 490.

       See Federal Trade Comm’n v. Mary Carter Paint Co., 382 U. S. 46; Labor Board v. Southland Mfg. Co., 201 F. 2d 244, 246. These same policies are behind the “primary jurisdiction doctrine.” Far East Conference v. United States, 342 U. S. 570, 574-575; United States Navigation Co., Inc. v. Cunard Steamship Co., Ltd., 284 U. S. 474. See generally, Stason, “Substantial Evidence” in Administrative Law, 89 U. Pa. L. Rev. 1026 (1941).

       See Labor Board v. Seven-Up Bottling Co. of Miami, Inc., 344 U. S. 344; Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194, 207-209; Phelps Dodge Corp. v. Labor Board, 313 U. S. 177. See also Security Administrator v. Quaker Oats Co., 318 U. S. 218, where considerable deference was given the Federal Security Administrator in the promulgation of rules pursuant to the Federal Food, Drug, and Cosmetic Act.

       See Grace Line, Inc. v. Skips A/S Viking Line, 7 F. M. C. 432. See also Johnston Seed Co. v. United States, 90 F. Supp. 358, aff’d 191 F. 2d 228; Boston Wool Trade Assn. v. Director General, 69 I. C. C. 282, 309, where, to avoid an award of reparations that would be inequitable, the I. C. C. and the courts found certain practices by the carriers to be unreasonable only prospectively. See also Delaware, Lackawanna & Western Coal Co. v. Delaware, Lackawanna & W. R. Co., 46 I. C. C. 606, 509.

       The Senate Report says that the enforcement provisions in the Shipping Act “confer upon the board power to make orders necessary for the enforcement of the act .. . .” S. Rep. No. 689, 64th Cong., 1st Sess., p. 13. (Emphasis added.) Later on, the report says the board shall “make such order as may be proper, including an award of reparation for an injury resulting from the violation.” Ibid.

       The Court of Appeals said it is “beyond question” that the Board considered and made sufficient findings, supported by the record, that Flota’s exclusive contract with Panama Ecuador was “unjust” and “unreasonable.” It also said that the Board was “entitled to conclude that neither the exclusive contract nor the request for a declaratory order rendered Flota’s discriminatory refusal of space reasonable or just.” 112 U. S. App. D. C. 302, 307-308, 302 F. 2d 887, 892-893.

       It is important to distinguish this situation from one where a litigant affirmatively relies upon an agency declaration, later reversed, that specifically authorized particular behavior. See Arizona Grocery Co. v. Atchison, Topeka & Santa Fe R. Co., 284 U. S. 370.

       Flota’s operating manager in the United States testified that “it is better to deal with one [shipper] than with three.” There is also evidence that Flota had been able to settle Panama Ecuador’s claims for shipment damages on a basis of only “2.4% which is a very low percentage in comparison with the usual 15% deduction which applies to this type of transportation.”

       Because of its disposition of this case, the Court of Appeals found it unnecessary to consider Flota’s objection that counsel for the Commission, who participated in the writing of the Commission’s reparation award upon remand, had violated 5 TJ. S. C. § 1004 (1964 ed.) because he had previously participated as Public Counsel in the trial before the Hearing Examiner on the issue of whether Flota had violated the Shipping Act (although not in the trial on the reparation issue) and had defended the Commission’s finding of violation and award of reparations before the Court of Appeals in the first consolidated appeals. We have examined Flota’s contention in this regard and find it without merit.