The strong objection I have is that when they file these conference agreements, these basic agreements at the beginning that lets in a flood of every agreement made in the conferences. Mr. BULWINKLE. Assume for the sake of argument that you are right. I am coming back to that 3. I want to know whether you think there is anything wrong with it, and what is wrong with it? Mr. BOGGESS. The word "unduly." Mr. BULWINKLE. The word "unduly?" Mr. BOGGESS. Yes. The word "unduly" is just like "appropriate"; it is broad, vague, and uncertain. Mr. BULWINKLE. Otherwise it is all right, except that the word "unduly" should come out? Mr. BOGGESS. Yes. Mr. BULWINKLE. Now we will go to 4: That it is consistent with the public interest as declared by Congress in the national transportation policy set forth in the Act. Mr. BOGGESS. I mentioned that in my statement, the "national transportation policy" is a very broad statement and it virtually makes the public interest and the national transportation policy synonymous. Mr. BULWINKLE. Do I understand you to say that you would have a new transportation policy drawn? Mr. BOGGESS. No. Mr. BULWINKLE. What is wrong with the national transportation policy? Mr. BOGGESS. What I am saying is that it is broad and would include a great many subjects and a great many things. Mr. BULWINKLE. It was the intention of Congress to set up a national transportation policy for this country, was it not? Mr. BOGGESS. Yes. But they did not intend for the national transportation policy to include exemption from the antitrust laws. Mr. BULWINKLE. How do you know? Mr. BOGGESS. There is nothing in the language to indicate that. Mr. BULWINKLE. Did not the Congress say, if my recollection_is correct, that collective agreements were to be considered alone? Do you not remember that? Mr. BOGGESS. Please get it and read it to me. Mr. BULWINKLE. All right. I will read it to you. Promote safe, adequate, and economical service and foster sound transportation, and among the several carriers, to encourage the establishment and maintenance of reasonable charges for transportation, service, without unjust discrimination, undue preference or advantages, or unfair or destructive competitive practices, to cooperate with the several States and the duly authorized officials thereof, to encourage fair wages and equitable working conditions, all to the end of developing, coordinating and preserving our national transportation system by water that is all right, is it? Mr. BOGGESS. I do not see the word "competition" in there. Mr. BULWINKLE. I did not say competition, except what I read you there. But I am asking you, the collective agreements, the agreements that I was talking about, and rail service adequate to meet the needs of the United States and so on. Do you see anything wrong with that national transportation policy? Mr. BOGGESS. Major, is that not the standard set down for the Commission to follow? Mr. BULWINKLE. That standard was set down by this committee which drafted it, for every man, woman, and child in America, as a standard of transportation applying to surface carriers, does it not? Mr. BOGGESS. And for the guidance of the Commission. Mr. BULWINKLE. So you think that a national transportation policy only applied to the Commission? Mr. BOGGESS. No. I said for the Commission and the matters that they consider. Mr. BULWINKLE. So you do not agree with 4. It is too broad. I believe that is what you said. Let us pass on. Mr. BOGGESS. Yes, sir. Mr. BULWINKLE. It is too broad entirely. Too general. Is it not a fact that S. 110 has no effect whatever on any agreements which do not meet the standards set forth in paragraph 2 of the bill? Mr. BOGGESS. Would you state that over, Major? Mr. BULWINKLE. Is it not a fact that S. 110 has no effect whatever on any agreements which do not meet the standards set forth in paragraph 2 of the bill? Mr. BOGGESs. You are right about that. Mr. BULWINKLE. I get 100 on that. On page 1 of your statement you also refer to the bill as a special privilege legislation. Are you familiar with the fact that at the present time, since 1938, legislation of this character has been in effect with respect to air carriers, as provided by section 413 of the Civil Aeronautics Act of 1938? Are you familiar with that? Mr. BOGGESS. Yes, sir. I am familiar with that. I think that was done on account of the air industry just starting out as an infant industry. Mr. BULWINKLE. I could tell you a little different story. And sometime I will. I think your assumption is wrong about that. Are you familiar with the fact that similar legislation has been in effect since 1916 with respect to the water carriers in the Shipping Act of 1916? Mr. BOGGESS. I think subsidies are concerned in that, too. Mr. BULWINKLE. So you think because of subsidies in the Shipping Act that that was put in? Mr. BOGGESs. If that law made in 1916 and section 413 of the Civil Aeronautics Act, if they are not good laws, there is no use to add to the category and exempt other forms of transportation, that is take the enforcement of the antitrust laws away from all other transportation. Mr. BULWINKLE. But you said "special privilege." Mr. BOGGESS. What about special privilege? Mr. BULWINKLE. That is what I am telling you. It was not special. There have been other privileges granted, have they not? Mr. BOGGESS. I would think that this is a special privilege. There are about three lines to the section in the Shipping Act and more than that to the section in the Civil Aeronautics Act, and they are not given the complete immunity that other forms of transportation would now be given. Mr. BULWINKLE. Then if I draw an act for surface carriers only covering three lines, will that be all right with you? Immunizing them from the antitrust laws? Mr. BOGGESS. Only three lines? Mr. BULWINKLE. Yes. Mr. BOGGESS. I am against immunizing them, or any other industry. Mr. BULWINKLE. So it is not on account of the shortness, as you said just now. I have seen the report of the Attorney General for the year 1938, and I call your attention to the fact that there stated on page 61 that particular problems are presented with respect to particular industries under the antitrust laws, and that those problems cannot be solved by blanket legislation relating to many dissimilar industries. In that report it is stated, at the bottom of page 61 All workable and up-to-date amendments to the law should be presented to the Congress at a time when the problem is acute, along with the facts of the particular industry which show the need for the amendments. This approach to the problem of amendments in terms of particular needs in particular industries enables us to escape battles over broad general principles which are likely to be fruitless. Is this proposed bill not in complete accord with the statements made in the report of the Attorney General in 1938? Mr. BOGGESS. I would say, "No." Mr. BULWINKLE. You would say, "No"? All right. We have that. You recognize, I suppose, that there are special conditions in the way of regulation and otherwise, in the transportation industry which distinguish it from other industries. Is that right? Mr. BOGGESS. Yes. Mr. BULWINKLE. Do you realize that the requirements that transportation rates are reasonable and properly related and that they be such as to maintain sound economic conditions in the industry presents a special situation in the transportation field? Mr. BOGGESS. Yes, sir. Mr. BULWINKLE. Do you disagree with the statement made by the late Joseph P. Eastman before the Senate Committee on Interstate Commerce, during the hearings on S. 942, Seventy-eighth Congress, when he said: It must be clear to any reasonable man that a carrier cannot respond to all the duties imposed by law if the individual carrier acts in a vacuum. It is a situation which under all the conditions plainly calls for consultation, conference, and organization and for many acts of a joint or cooperative character. I am wholly convinced that if the carriers of the country are to respond to the duties and obligations imposed upon them by the Interstate Commerce Act, and if the rate structure is to be reasonable, free from unjust discrimination, or undue preference and prejudice, as simple and consistent as may be, reasonably stable and sufficient for the financial needs of private ownership and operation, the carriers must be in a position to consult, confer, and deal collectively with many phases of this matter. Mr. BOGGESS. I do not. Mr. BULWINKLE You do not agree with Mr. Eastman. Of course, you understand there are certain things we have no objection to, certainly Certain matters that we consult each other about. You would agree with me that Mr. Eastman was one of the greatest authorities on surface transportation in the last quarter of a century in this country? Mr. BOGGESS. Yes. I heard him make that statement. with you in regard to that. I agree Mr. BULWINKLE. Can you call the attention of this committee to a single agreement which would meet the standards set forth in S. 110, or H. R. 221, which would be against the public interest or a threat to the public interest, or which should be prevented or punished. Mr. BOGGESS. The Western Agreement. Mr. BULWINKLE. Western Agreement? Mr. BOGGESS. Yes. The Western Agreement. Mr. BULWINKLE. What was that, for the information of the committee? Mr. BOGGESS. I will have to describe the hierarchy that exists beneath the western railroads Mr. BULWINKLE. Let us assume for the sake of argument that there is a hierarchy. Mr. BOGGESS. At the top of that hierarchy is the Western Traffic Executive Committee. They go to that committee on appeal. If they still do not agree, they pass the question, any question that may come up between the carriers, on to the Western Commissioner. The Western Commissioner acts as mediator, tries to settle it between the railroads and if he fails to do that, and they do not agree, he makes out a report of what has taken place, describes the differences between the carriers and sends the report on to the Committee of Directors in New York. Mr. BULWINKLE. But you are talking about the process of procedure. You say the Western Agreement. Suppose there was not any Western Agreement and this bill was a law now. I want to know what was in that Western Agreement which this standard set forth in these bills would not cover? Mr. BOGGESS. There was certainly coercion at the top and there may have been coercion down lower. There certainly was at the top. Mr. BULWINKLE. Let us assume there was coercion. Let us assume everything you say is absolutely correct, that there was coercion there and there was a hierarchy and it was this that and the other thing. I do not know. I am trying to get the information for this committee. I want to know what was in that agreement that would not come under the provisions of the standards set forth in this bill? Mr. BOGGESs. What was in it that would not come Mr. BULWINKLE. Yes. Mr. BOGGESS. It was not in the public interest. Nearly everything was wrong with it. Mr. BULWINKLE. What else? Mr. BOGGESS. It was not in the public interest; it restrains competition; it denies the right of independent action. They had independent action in there, but the results show that no independent action took place among the carriers. Mr. BULWINKLE. Are you through? Mr. BOGGESS. Go ahead. Mr. BULWINKLE. Then, that being so, could there have been any Western Agreement under the provisions of this act? Mr. BOGGESS. It depends on whether it was approved or not. Mr. BULWINKLE. It would go to the Interstate Commerce Commission? Mr. BOGGESS. Yes. Mr. BULWINKLE. You have confidence in the Interstate Commerce Commission? Mr. BOGGESS. Yes, sir. Mr. BULWINKLE. You would not say for one minute, as was said in the Georgia case, "The Interstate Commerce Commission has been and is derelict in its duty, is a party to the illegal practices recited and does condone and abet them." You would not say that any man on the Interstate Commerce Commission or the Interstate Commerce Commission itself would be guilty of that, would you? Mr. BOGGESS. No, sir. Mr. BULWINKLE. And therefore you do not agree with that brief which was filed in the Georgia case in that form. Is that correct? Mr. BOGGESS. I do not remember the language in the brief in the Georgia case. Mr. BULWINKLE. You also say on page 1 of your statement_that these bills would encourage the immunization of private control and of industry. Is it not a fact, in recognition of the special situation in the field of transportation, that the Congress in 1920 gave the Interstate Commerce Commission the authority to approve consolidations and mergers in the railroad field and to approve the pooling of traffic, the pooling of revenue and other matters of that kind? Mr. BOGGESS. Yes. Mr. BULWINKLE. And is it not a fact also that the Maritime Commission has the authority to approve agreements with respect to water carriers under the agreement? Mr. BOGGESS. Yes. Mr. BULWINKLE. Has this action on the part of Congress and I left out the Civil Aeronautics but I am including that has this action on the part of these congresses encouraged the immunization of private controls in other industries? Mr. BOGGESS. You yourself used it as an argument a while ago, as to why we should allow it in regard to the railroads, that is, because the Civil Aeronautics Act and the Shipping Act have it, so it seems to have encouraged it, Major. Mr. BULWINKLE. Has it encouraged controls now-let us get the question right is it not a fact that the Congress has also given such authority to these two bodies-civil aeronautics and merchant marine and the Transportation Act of 1920-has this action on the part of Congress encouraged the immunization of private controls? We are not speaking of this bill. We are speaking-has it immunized in the slightest degree, private controls of in other industries? Mr. BOGGESS. That has been a long time ago. The Shipping Act and Civil Aeronautics Act, as I say, were assisted by subsidies, and I think that had a great deal to do with it. Civil aeronautics of course was just beginning, getting on its feet, and I think that had something to do with that exemption. Mr. BULWINKLE. It is about on its feet now, is it not? Mr. BULWINKLE. When would you advocate a repeal of those provisions of the Civil Aeronautics Act? Mr. BOGGESS. I will leave that to you and your colleagues. Mr. BULWINKLE. I know. But you say you want them to get on their feet. Has the merchant marine got on their feet yet? Mr. BOGGESS. They are not on their feet either. |