USCA1 Opinion

United States Court of Appeals

For the First Circuit

____________________

No. 95-1643

PUERTO RICO MARITIME SHIPPING AUTHORITY,

Petitioner,

v.

FEDERAL MARITIME COMMISSION

and
UNITED STATES OF AMERICA

Respondents.

____________________

STANLEY HECHT

Intervenor.

____________________

PETITION FOR REVIEW OF AN ORDER OF

THE FEDERAL MARITIME COMMISSION

____________________

Before

Lynch, Circuit Judge,

_____________
Campbell, Senior Circuit Judge,
____________________
and Watson,* Senior Judge.
____________

____________________

Amy

Loeserman Klein, with

whom Jenkens &

Gilchrist was on

____________________

____________________

brief, for petitioner Puerto Rico Maritime Shipping Authority.

Carol J. Neustadt,
__________________
with whom
Miller,
______
Bingaman,
________

Attorney, Federal

Robert D. Bourgoin,
__________________
Attorney,

Federal

General Counsel, and

Maritime

Assistant Attorney

Maritime Commission,

General,

Commission,

C. Douglass
___________
and

Anne K.
________

John J. Powers III

___________________

and

____________________

*Of

the

U.S.

Court

of International

Trade,

sitting

by

designation.

Robert J. Wiggers, Attorneys, U.S. Department of Justice, were on

_________________

brief,

for respondents

Federal

Maritime Commission

and United

States of America.
Rick A. Rude for intervenor Stanley Hecht.
____________
Nathan J. Bayer, with whom
________________
Blackwell
_________
and

Torbjorn B. Sjogren
___________________

and Sher &

______

were on brief, for amici curiae United States Atlantic

_____ ______

Gulf/Southeastern

Caribbean

Conference,

United

States

Atlantic and Gulf Hispaniola Steamship Freight Association, Latin

American

Shipping

Service

Association,

Venezuelan

Maritime Association and the Credit Agreement.

____________________

February 6, 1996
____________________

American

LYNCH,
LYNCH,

Commission,

in

Circuit Judge.
Circuit Judge.
______________

exercising

its

May the

Federal Maritime

administrative

lawmaking

function, excuse a party from

paying sums awarded against it

by

by a

a final

affirmed

systems

judgment entered

on appeal?

of law

and

We

U.S. District

preserve harmony

respect for

judgments

Court and

between the

two

entered by

the

courts by concluding,

party was

court

not free

attorneys'

Shipping

before the

agency to

Accordingly,

we

Save-On Shipping

fees and

Authority

costs awarded

(PRMSA)

case, that

the

seek to undo

the

reverse

(SOS) need not

to Puerto

by the

the

United

FMC's

pay the

Rico Maritime

States District

for the Southern District of Florida and by the United

States Court of

extent

facts of this

judgment.

determination that

Court

on the

that the

Appeals for

FMC's

the Eleventh Circuit.

order is

prospective

To

the

and does

not

involve sums awarded by the judgment entered, we affirm.

PRMSA

other

refused

action

items to

carried four

San Juan,

shipments

Puerto

of frozen

Rico for

SOS.

food and

When SOS

to pay about $11,000 of PRMSA's bill, PRMSA began an

against SOS in

the federal court

in Florida seeking

the unpaid

freight charges,

attorneys' fees

lading

to SOS.1

pursuant to

interest, collection

the

Jurisdiction

terms of

was under

costs and

PRMSA's bill

the maritime

of

and

____________________

1.

PRMSA's lawsuit in federal district court was filed by an

agent of PRMSA, Puerto

and the judgment

Rico Marine Management, Inc. (PRMMI),

in the federal court action ran in favor of

-33

admiralty

1333.

jurisdiction of

the federal

courts, 28

U.S.C.

The bill of lading, which employed language found in a

bill of lading tariff filed with the FMC, provided that:

[t]he shipper, consignee, holder hereof, and owners

of the goods shall
to

Carrier

demurrage,

for

be jointly and severally liable

the

General

payment
Average

of

and

all

freight,

other

charges,

including, but not limited to court costs, expenses

and

reasonable

attorney's

fees

incurred

in

collecting sums due Carrier.

SOS moved for summary judgment;

SOS lost on both motions.

freight, attorneys'

PRMSA filed a cross

motion.

The court awarded PRMSA the unpaid

fees and

costs, enforcing the

terms of

the bill of lading.

SOS moved

of

the

district

for reconsideration and then

court

proceeding

while

SOS

for a stay

pursued

complaint (FMC Docket

the

summary

administrative

judgment

No. 92-12) it had

motions)

complaint

lading was

based,

before

challenged,

attorneys' fees provision of the

of

filed (after losing

but did

the

FMC.

alia,
____

the

tariff upon which the

bill

not

inter
_____

That

directly challenge

the

attorneys' fees awarded on the four shipments at issue in the

federal court action.

It asserted that the

attorneys' fees

tariff provision was unreasonable under sections 17 and 18(a)

of the Shipping Act of 1916, 46 U.S.C. app.

(the 1916

Act), and section

2 of the

816 and 817(a)

Intercoastal Shipping

____________________

PRMMI.

Because the distinction

between PRMSA and

PRMMI is

unimportant to the disposition of this petition, this opinion

refers only to PRMSA.

-44

Act

of

involved

freight

1933, 46

U.S.C.

app.

seven

shipments

on

collection

in

the

shipments had occurred two

844

(the 1933

which PRMSA

court

had

action.

Act).

not

administrative complaint, SOS sought only

sought

Because

years prior to the filing

It

the

of the

prospective relief

in the form

stay of

of cease and desist orders.

the district

court proceedings

SOS's motion for a

was the first

time

that SOS argued before the district court that the attorneys'

fees

provision might

be

unenforceable because it

stay

did

not

argue

jurisdiction

over

recognizing

that

"deference" and

jurisdiction

the

illegal or

unreasonable and

was unilateral.

that

the

attorneys'

primary

jurisdiction

not of jurisdiction, it

was in the FMC.

The motion for

district

fees

thus

court

issue.

is

lacked

Rather,

rule

of

argued that primary

The district court denied both

of SOS's motions.

SOS

appealed the

Court of Appeals for

the appellate

judgment

to the

United

the Eleventh Circuit and moved

proceedings or,

in the alternative,

States

to stay

to refer

the

case

to

jurisdiction.

stay.

and

the

The

FMC

under

the

Eleventh Circuit

doctrine

denied the

of

primary

motion for

It later affirmed the district court, without opinion,

denied the

motion

for referral

as

moot.

PRMSA

was

eventually awarded attorneys' fees and costs of approximately

-55

$100,000.

The

parties do not

identify any further

appeals

taken by SOS in the federal court action pertinent here.

Having lost

complaint

before the

in federal

FMC

court, SOS filed

(FMC Docket

No. 93-21)

a second

directly

challenging the attorneys' fees awarded on the four shipments

that

were

at

administrative

issue

in

complaint also

bill of lading language

was

unlawful

the

and

Eleventh

Circuit.

alleged that

the tariff

This

and

concerning attorneys' fees and costs

unreasonable.

pursuant to section 22(a)

It

sought

of the 1916 Act, 46

reparations

U.S.C. app.

821(a), in the amount of attorneys' fees that were granted by

the

federal

court.

The

FMC

eventually consolidated

FMC

Docket No. 92-12 and

FMC Docket No. 93-21 on

the attorneys'

fees issue.

The

issue.

FMC agreed

The FMC held that

provision was

shipper,

SOS on

the attorneys'

because the bill of lading

unilateral (allowing the carrier,

fees

tariff

but not the

to recover fees and costs), it was in conflict with

an FMC decision,

F.M.C.

with

101

(1979),

unreasonable.

92-12 and

West Gulf Maritime Ass'n v. Galveston,

_________________________
_________

argument that

the

provision

was

unjust

and

It granted SOS's relief in both FMC Docket No.

FMC Docket

three issues

and

22

No. 93-21.

of relevance here.

In

It first

claim preclusion barred

in FMC Docket No. 93-21 as

so doing,

it decided

rejected PRMSA's

the reparations claim

to the four shipments involved in

-66

the

court action.

reparations

in

collected in

judgment.

in

FMC

It next

ordered PRMSA

Docket

No.

attorneys' fees

93-21

to pay

any

pursuant to the

amount

No. 92-12

seeking a

cease and

PRMSA

federal court

It also granted SOS's motion for summary

FMC Docket

back as

judgment

desist order

preventing PRMSA

from publication and

attempted enforcement

of the provisions of FMC-F-No. 10 (the bill of lading tariff)

and its

bill

of lading

allowing for

costs, expenses,

and

attorneys' fees.

PRMSA has

order.

The FMC

Stanley

Hecht,

intervenor.2

petitioned here for review

and

the

president

In

its

of

SOS,

States are

has

petition, PRMSA

preclusion argument it made

that

United

of the FMC's

respondents;

appeared

presses

before the FMC.

It

the

as

an

claim

also claims

the FMC's decision on the merits of the attorneys' fees

issue was error.

Because the question of claim preclusion is

and

matter of law within

the expertise of

purely

the federal courts

is not a question within the particular expertise of the

FMC, our

review

of that

issue

is plenary.

Cf.
___

Dion
____

v.

Secretary of Health and Human Servs., 823 F.2d 669, 673 (1st
_____________________________________

Cir. 1987).

We

also

note the

doctrine that

"[j]udgments

____________________

2.

PRMSA's suit in the district court was filed against both

SOS and Stanley

represented
litigation

that

Hecht.
it

Midway
had

gone

through the litigation,

out

of

business, and

SOS
the

was carried on only in the name of Stanley Hecht.

In this opinion, "SOS" designates both parties.

-77

within the powers vested

of the

or

Constitution may not lawfully

refused

faith

Government."

and

credit

by

Judiciary Article

be revised, overturned

another

Department

Chicago & Southern Air Lines, Inc. v.

__________________________________

S.S. Corp., 333

__________

that

in courts by the

FMC Docket

U.S. 103,

No.

claim preclusion, we

113 (1948).

93-21 was

Because we

barred under

of

Waterman
________

believe

principles of

reverse the FMC's order with respect to

FMC Docket No. 93-21 including its order granting reparations

of the

amount of attorneys' fees collected by PRMSA pursuant

to the federal

that FMC

court action.

Docket No. 92-12

We do

was barred

not, however,

and, in light

believe

of our

deferential review of the FMC's

construction of a statute it

administers, see
___

Chevron U.S.A., Inc. v.

_____________________

Defense Council,
_______________

467 U.S.

837 (1984),

Natural Resources
_________________

we affirm

the FMC's

order in that case.

1. FMC Docket No. 93-21: The Reparations Claim.

_______________________________________________

Since

the identity

final

judgment on the merits are not in dispute, the parties

have

focussed

between

the

of the

on

whether

causes

of

parties and

there

was

action actually

the existence

sufficient

litigated

of a

identity

in

the

federal court action and the claim for reparations before the

FMC.

We do not enter the fray, as do the parties,

the principle of claim preclusion,

for under

"'a final judgment on the

merits of

an action precludes

from relitigating issues

the parties or

their privies

that were or could have been raised

______________________

-88

in

1, 5

that action.'"

Manego v.
______

Orleans Bd. of Trade, 773 F.2d

____________________

(1st Cir. 1985) (quoting Allen v. McCurry, 449 U.S. 90,

_____
_______

94 (1980)

(1986);

(emphasis supplied)), cert. denied,

_____ ______

accord
______

Kelly v.
_____

Smith, Inc., 985

___________

475 U.S. 1084

Merrill Lynch, Pierce, Fenner &

__________________________________

F.2d 1067, 1070 (11th

Cir.), cert. denied,

_____ ______

114 S. Ct. 600 (1993).

The

claims

of

unreasonableness,

illegality, of the attorneys' fees

lading could

the

action

have been raised

over

jurisdiction.

unreasonableness as

which

Although

provision in the bill

as an affirmative

district

SOS

hence,

court

could

of

defense in

plainly

have

had

raised

an affirmative defense and requested the

district court to stay

the

the

and

the action and refer the

question to

FMC as a matter of primary jurisdiction, see Holt Marine

___ ___________

Terminal, Inc. v. United States Lines, 472 F. Supp. 487, 489

_______________
___________________

(S.D.N.Y. 1978);

cf. P.R. Maritime Shipping Auth. v. Valley

___ _____________________________
______

Freight Sys., 856 F.2d

____________

Interstate

Commerce Commission),

within the discretion of

Sys.,
____

does

546, 549 (3d Cir. 1988)

856 F.2d at 549.

not implicate

federal court.

(referral to

the decision to

the federal court.

Valley Freight
______________

The doctrine of primary jurisdiction

the subject

matter jurisdiction

of the

Id.
___

Normally,

this would

be

the end

of the

Under the transactional approach of the Restatement

of Judgments

refer was

24

(1980) applicable

-9-

matter.

(Second)

here, see Manego,

___ ______

773

F.2d at

5; see also Wallis

___ ____ ______

v. Justice Oaks II, Ltd. (In re

_____________________________

Justice Oaks II, Ltd.), 898

________________________

(applying

denied,
______

Restatement's

498 U.S.

defenses arising

F.2d

1544, 1551

transactional

959 (1990), defendants

out of

(11th

approach),

can no

the same transaction

Cir.)

cert.
_____

more split

or occurrence

than plaintiffs can split claims.

claim

before

rather

than

the FMC

an

separate cause

is

Even if

characterized

affirmative

of action.

defense,

SOS's reparations

as a

it

counterclaim

would not

The reparations claim,

be

which is

based on the very same four shipments at issue in the federal

court

collection

transaction

necessary

basis of a

action,

clearly

or occurrence

to the

and

reparations

arose out

of

virtually all

claim would

the

of the

have formed

defense to the collection action.

same

facts

the

Cf. Pirela v.
___ ______

Village of North Aurora, 935 F.2d 909, 912 (7th Cir.), cert.
________________________
_____

denied, 502 U.S. 983 (1991).

______

Indeed,

counterclaims,

the

see Fed.
___

required

R.

Civ. P.

joinder

of

compulsory

13(a) and

Restatement

(Second) of Judgments

from hiding

22, is

designed to prevent

behind formal distinctions between

counterclaims.

Under

parties

defenses and

usual circumstances, SOS's reparations

claim would be a compulsory counterclaim and SOS's failure to

assert

it in the federal

court action would

from bringing it in a subsequent action.

-1010

have barred it

See id.
___ ___

apply,

The

FMC urges

relying

on the

that those

opinion

in

usual rules

should not

Government of Guam
___________________

American President Lines, 28 F.3d 142 (D.C. Cir. 1994).

________________________

v.

That

case held that there is no express or implied cause of action

in federal

district courts

under either the

goes that SOS

action

that

1916 Act or

cannot be barred

could

district

court.

here

whether

is

over reparations claims

not

the 1933

Act.3

The

from pursuing a

have been

brought

in

of claim

argument

reparations

the federal

That argument begs the question.

principles

brought

preclusion

The issue

bar

the

assertion of

a claim before

an agency

which is based

on a

legal theory that could have been raised by way of defense to

____________________

3.

In

Government of Guam the

___________________

action before
rates
The

the FMC

against carriers for

alleged to be unlawful
shippers

federal court

later filed

virtually

The

and 1933 Acts.

identical claim

dismissed.

The

in

D.C. Circuit

shippers conceded that the

had the task of resolving the

144, and there was

initiated an

reparations for

under the 1916

which the court

affirmed the dismissal.

at

shippers first

FMC

merits of the dispute, 28 F.3d

no private cause

of action expressly

provided in the 1916 and 1933 Acts for a shipper to challenge

a carrier's rates in
continue

the

claims of a
argued

federal court.

court action

in

The shippers

order

to preserve

class, claims which the FMC could

there was

an

implied cause

sought to

of

ultimate

not hear, and

action.

The

D.C.

Circuit declined to imply a cause of action.

In
action

contrast,

here, the

carrier

had

a cause

that was properly before the federal court.

little reason

of

There is

to think the Government of Guam court intended

__________________

to resolve
Indeed,
Guam
____

a dispute of

the sort

faced on the

facts here.

in a separate part of the opinion, the Government of

_____________

court declined

consequences of

to

give the

their failure

shippers relief

to have raised

theories in the district court.

from the

certain legal

Id. at 149-50.
___

-1111

the

district court claim and

which, if it

could have provided the same relief.

had been raised,

A defendant

is barred from

relitigating a defense

which was available in a prior action by making it

of

a claim that would "nullify the initial judgment or would

impair

rights

established

in

the

Restatement (Second) of Judgments

initial

22(2)(b).

failure to raise such a defense precludes

seeking restitution

2, 3,

9.

The reparations

precisely the type of

rule,

is barred.

remedy, the

rendered

A defendant's

the defendant from

Id. cmt. b & f, illus.

___

action SOS seeks in

this case is

restitutionary remedy that, under this

Were SOS

to

be allowed

district court's award of

totally

action."

of the amount that may have been awarded

to the plaintiff in the first action.

be

the basis

meaningless

and

reparations

attorneys' fees would

there

would

be

concomitant waste of

judicial resources.

We hold that SOS's

claim for reparations before the FMC is barred.

The

policies of

fairness underlying

served

economy,

the claim

efficiency, repose

preclusion doctrine are

and

best

by holding SOS to the consequences of its actions and

inactions.

Under the facts of

this case, SOS had a full and

fair opportunity to litigate the attorneys' fees issue before

the

district court.4

Although

it had an

opportunity to do

____________________

4.

defendant

must,

of

course,

have

full and

opportunity to raise the

claim in the first action.

analogous

plaintiffs'

situation

of

-1212

claim

fair
In the

splitting,

for

so,

SOS

federal

the

neither raised

reparations

claim before

the

court nor argued that there was no jurisdiction over

attorneys' fees

benefit

the

from

issue.

any

SOS,

jurisdictional

barrier" exception to the doctrine

Restatement (Second)

Government of Guam
__________________

the Eleventh

of Judgments

as

a result,

competency

or

gains

"formal

of claim preclusion.

26(1)(c).

no

Cf.
___

Further, the

outcome was not supported by precedent in

Circuit

nor is

it

binding on

that

circuit.

Indeed, the FMC

that

federal

itself has

courts

in the past

have

reparations claims brought

and

that

federal

reparations

concurrent

taken the

position

jurisdiction

under section 22 of the

counterclaim could

district court.

be

over

1916 Act

raised

See Interconex, Inc. v.

___ _________________

in

Federal
_______

Maritime Comm'n, 572 F.2d 27, 30 (2d Cir. 1978).

_______________

There is virtually

the relief SOS

could have received before the district court

and what it sought before

unreasonableness of the

-- was available to

extent of the

no practical difference between

the FMC.

The legal theory

-- the

unilateral attorneys' fees provision

SOS in the district

relief sought

court action.

-- relief from

payment of

attorneys' fees -- was available in the district court.

The

the

____________________

example, the Restatement recognizes that the first court must

have

been

competent

to

adjudicate

Restatement (Second) of Judgments

22(2)
claims

(claim preclusion
that the

over

defendant

the

26(1)(c);

counterclaims

"may [have]

counterclaim in the first action).

-1313

claim.

See
___

see also id.

___ ____ ___
is limited

interpose[d]" as

to
a

The

purely

formal distinctions

on which

FMC and

intervenor uneasily rest have met with considerable hostility

when used as attempts to avoid claim preclusion. For example,

parties who

in state

have failed to raise fraud

court actions have

claims in

been

808 F.2d

also, Pirela, 935 F.2d

____ ______

that

on allegations

bringing RICO

of fraud

and

jurisdiction over the RICO claim may have

exclusively federal.

State Bank,
__________

been barred from

federal court based

forgery even where

and forgery defenses

See, e.g., Henry

___ ____ _____

1228, 1236-37

at 912.

(7th

v. Farmer City
___________

Cir. 1986);

The underlying

cf.,
___

rationale is

claim preclusion applies if the formal barriers did not

prevent the party

first action to

from a

full and fair

litigate the substance

opportunity in

of the legal

the

theory

advanced and remedy sought in the second action.

Finally, the results

the reparations

the

action are

reached here with respect

not outweighed by

1916 and 1933 Acts' statutory scheme.

concerns over

Cf., e.g., United

___ ____ ______

States v. American Heart Research Found., Inc., 996 F.2d

______
_____________________________________

11 (1st

applying

different

to

7,

Cir. 1993) (claim-splitting limitation relaxed where

it

would

frustrate

factual setting

a statutory

might more

objective).

strongly involve

the

policies behind the 1916 and 1933 Acts, but this is basically

an

action between two private parties over who will bear the

costs and

fees of the collection

action here.

In order to

collect $11,000 in freight charges, an amount SOS says it has

-1414

now paid and does not dispute, PRMSA was forced to spend over

$100,000

in

attorneys'

fees.

That

Congress

may

have

preferred that the FMC decide questions of the reasonableness

of

attorneys' fees

justify

upsetting

provisions in

the

strong

carrier tariffs

policy

of

does not

honoring

final

judgments

entered

by

federal

courts.

Spendthrift Farm, Inc., 115 S. Ct.

_______________________

Cf.
___

Plaut
_____

v.

1447 (1995) (retroactive

legislation which reverses a judgment within the power vested

by

the

courts

is

separation

of

litigating

parties

unconstitutional

powers).

Nor does

with

general

as

violation

it excuse

rules

of

of

compliance by

federal

claim

preclusion.

SOS

chose

not

to

had a

follow,

interests of both

Before SOS was

fees

and

then

reparations.

range

of actions

that

the judicial

would

available, which

have

accommodated

and administrative

it

the

systems.

sued, it could have paid PRMSA's bill and the

brought

an

Alternatively,

action

once

before

sued,

the

SOS

FMC

for

could

have

asserted an

affirmative defense of illegality and/or brought

reparations counterclaim

ruling on

the question of

jurisdiction

also have

have

over

court action or

court and

whether there was

the reparations

brought a timely

asked in

in district

a timely fashion

for a stay

a primary jurisdiction

-1515

subject matter

counterclaim.

action in the

sought a

FMC and

It could

it could

of the district

referral.

It

could

also

have

without

the FMC.

asked the

district

prejudice to pursuing

court to

make

its decision

the reparations

claim before

See Restatement (Second) of Judgments

___

On

26(1)(b).

these particular facts and equities,5 the FMC's

decision that SOS was free to avoid claim preclusion and thus

the

federal court judgment against it

on the four shipments

for costs and attorneys' fees is, we believe, in error and is

reversed.

____________________

5.

The

reached

result
in

Corp., 936
_____

reached

F.2d

64

(2d Cir.

Commerce
issues.

with
v.

the

addressed

the federal

that case,

the Second

rate

Circuit
court to

not raised in

that Georgia-Pacific

nevertheless continue to pursue

rate unreasonableness

over

the case to the district

but stated

the

courts and

(ICC)

reasonableness defenses that were

district court,

results

Georgia-Pacific
_______________

which

Commission

In

denied requests to remand

assert rate

1991),

relationship between

Interstate

reasonableness

the

coincides

Delta Traffic Serv., Inc.

___________________________

jurisdictional
the

here

could

a reparation action based on

before the ICC.

See id.
___ ___

at 66.

In

Georgia-Pacific, however, Georgia-Pacific requested a stay of

_______________
the

district

court

action

and

referral

"[c]oincident with the service of its answer"

action.
was

Id. at 65.
___

pending before

federal

may

the ICC

have restricted

Aware

any claim
Id.
___

of the ICC

Pacific does not stand

_______
attack

decision, which

preclusive effects

at 66; see 18 Charles A.

___
4413 (1981).

for the proposition that a

a

federal court's

in the

action, the Second

scope of its

al., Federal Practice and Procedure

_______________________________

collaterally

ICC

in the federal

before judgment entered

limited the

otherwise have had.

the

Moreover, the rate reasonableness issue

court action.

Circuit carefully

to

final

it might
Wright et
Georgia________
party may

judgment

by

raising
could
Indeed,

before an

agency a

have been, but was

in a

similar case

refused to undermine a

claim based

not, raised in
the Second

on a

the federal court.

Circuit had

appeal.

earlier

federal district court judgment based

on a rate unreasonableness defense raised for the

on

defense that

first time

See Delta Traffic Service, Inc. v. Appco Paper &

___ ___________________________
_____________

Plastics Corp., 931 F.2d 5, 7 (2d Cir. 1991).

______________

-1616

2. FMC Docket No. 92-12: Cease and Desist Orders.

_______________________________________________

The issues raised by the appeal from the other administrative

complaint

are different, as is the outcome.

in its brief, the seven shipments at issue in

92-12

As PRMSA states

FMC Docket No.

were never part of the federal court action brought by

PRMSA.

Even if

transaction

before

these seven shipments arose out

or occurrence

us), as they

claim preclusion,

(which is

must for

then have

suing

on the seven shipments.

to raise

split its

Cf.
___

the record

to assert

work against PRMSA.

claim and

would be

PRMSA

barred from

A defendant has no obligation

affirmative defenses to

brought against it.

unclear on

PRMSA successfully

the bar would

would

of the same

claims that have

not been

Restatement (Second) of Judgments

22 cmt. b.

The pertinent statutes are

silent on the merits of

whether the

bill of

We

attorneys' fee

lading was

defer to

provision in PRMSA's

unreasonable because it

the expertise

of the

Chevron,
_______

467 U.S. at 842-43.

provides

that carriers

tariffs

817(a).

and practices

was unilateral.

the issue.

See
___

Section 18(a) of the 1916 Act

will enforce

relating

"just

thereto. 46

and reasonable"

U.S.C. app.

The FMC, which administers the 1916 Act, is charged

with deciding whether

is "just

FMC on

tariff and

a carrier's tariff and

and reasonable."

provisions are

ubiquitous

In light of the

and shippers

-1717

bill of lading

fact that these

have no

meaningful

ability

to

attorneys'

avoid

fees

reasonable under

Maritime Ass'n
______________

the

and

provision,

costs

a prior

fees provision

user,

provision

FMC held

that

the

was

just

and

not

analogous FMC decision,

v. Galveston,
_________

unreasonable under section

the

22 F.M.C. 101

17 of the 1916

that allowed a

West Gulf
_________

(1979) (holding

Act an attorneys'

terminal operator, but

to collect attorneys' fees).

not a

We recognize that, West

____

Gulf
____

notwithstanding,

dissented

from

the

two

of

decision

the

FMC's

at issue

here

commissioners

and

that the

question of unreasonableness of the attorneys' fees provision

is by no

means free from doubt.

of the statute appears

U.S.

at 842-43.

But the FMC's construction

to be permissible.

See
___

Chevron, 467
_______

We therefore affirm the FMC's order insofar

as it relates to FMC Docket No. 92-12.

Conclusion

The

judgment

of

the

affirmed in part, and remanded

________________
________

dismiss

FMC

Docket

accordance with

No.

93-21

this opinion.

FMC is

reversed
________

in

part,

with directions that the

and

modify

Parties

its

to bear

order

their

FMC

in

own

costs on appeal.

It is so ordered.
________________

-1818