(concurring):
Would that the issues were as simple as plaintiff (respondent herein), Judge Ryan, and the majority would have them. Briefly summarized, these defendants (petitioners herein) combined and conspired to put plaintiff out of the shipping business by reducing their rates be*176low cost until plaintiff was forced to leave the trade and then, after plaintiff had been eliminated, restored their preexisting profitable rates. Were this all there is to the situation, a better case of unprincipled conduct could not be pleaded. But legal problems are rarely so simple — and are not so here.
The only question before us is whether an interlocutory review of the primary jurisdiction issue should be entertained at this stage of the litigation. Although benefits may often accrue to a complicated litigation by a decision on points of law which might remove many issues from, and thus materially shorten, the controversy, there must be reasonable assurance that such a benefit would result from an interlocutory review.
Petitioners argue, in effect, that the Commission has primary jurisdiction to decide whether their rates set by agreement were set so unreasonably low as to be illegal and that such a determination by the Commission is vital to a decision that they are beyond the immunity of the antitrust laws extended by Section 15.
Respondent replies that it is not a question of sending the problem to the Commission and (by stay) awaiting their answer but that “the principal issue now before the District Court has already been considered at length by the very agency [the Commission] to which defendants now seek a reference of this case” (Respt’s Br. p. 16).
This court is in no position at this time to pass on the merits, procedurally or substantively, of the prior proceedings before the Commission. An investigation was apparently commenced before the Commission in December 1962 (Docket 1083), a decision rendered by a hearing examiner in April 1967, and a report of the Commission issued in November 1967. Petitioners claim that “the Commission found that the rate reductions effected by the Freight Bureau (1) were based upon a decision ‘to meet competition’; (2) were intended to take into account rebates being paid to shippers by non-conference carriers; and (3) were never, in fact, lower than, and indeed approached only the lowest published rates for, independent carriers. Having made these findings, the Commission concluded that little purpose would be served by deciding this aspect of its investigation on the merits and, hence, dismissed the Section 18(b) (5) inquiry on the grounds of mootness.” Petitioners will be able to urge these findings for whatever legal effect they may have in future proceedings (Pet. p. 7). Subsequent thereto, respondent sought an order from the Court of Appeals (D.C. Cir.) remanding the case to the Commission “for a decision as to whether the rates in question violated Section 18(b) (5) of the Shipping Act.” Because of the pendency of this antitrust action, respondent indicated that a decision by the Commission would be helpful in that action. The petitioners here have intervened in the D.C. Circuit proceeding. No decision has as yet been rendered therein.
It is difficult to perceive how a stay of this litigation would “materially advance the ultimate termination of the litigation.” The effect of the previous proceedings and the decision of the Commission can be argued upon the trial. If immunity from the antitrust laws results, this can be so declared by the trial court. If further declarations from the Commission are to be forthcoming as a consequence of such decision as may be rendered by the Court of Appeals (D.C. Cir.) in the proceeding now before it, the effect thereof on antitrust immunity can be urged upon the trial.
By being denied an interlocutory appeal at this time, petitioners lose none of their rights to raise all relevant questions upon the ultimate appeal, including their primary jurisdiction points. They do lose a present declaration from us of antitrust immunity but the record not yet made is scarcely sufficient for such a premature pronouncement one way or the other. Accordingly, I would deny the petition.