
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,  Attorney, Federal  Maritime Commission,               __________________          with whom  Robert D. Bourgoin,  General Counsel, and  C. Douglass                     __________________                         ___________          Miller,  Attorney,  Federal  Maritime  Commission,  and  Anne  K.          ______                                                   ________          Bingaman,  Assistant Attorney  General,  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  Torbjorn B. Sjogren  and Sher &               ________________             ___________________      ______          Blackwell  were on brief, for amici curiae United States Atlantic          _________                     _____ ______          and   Gulf/Southeastern   Caribbean  Conference,   United  States          Atlantic and Gulf Hispaniola Steamship Freight Association, Latin          American  Shipping  Service   Association,  Venezuelan   American          Maritime Association and the Credit Agreement.                                 ____________________                                   February 6, 1996                                 ____________________                      LYNCH,  Circuit  Judge.   May the  Federal Maritime                      LYNCH,  Circuit  Judge.                              ______________            Commission,  in  exercising   its  administrative   lawmaking            function, excuse a party from  paying sums awarded against it            by  a final  judgment entered  by a  U.S. District  Court and            affirmed  on appeal?   We  preserve harmony  between the  two            systems  of law  and  respect for  judgments  entered by  the            courts by concluding,  on the  facts of this  case, that  the            party was  not free  before the  agency to  seek to undo  the            court  judgment.      Accordingly,  we   reverse  the   FMC's            determination that  Save-On Shipping  (SOS) need not  pay the            attorneys'  fees and  costs awarded  to Puerto  Rico Maritime            Shipping  Authority  (PRMSA)  by the  United  States District            Court  for the Southern District of Florida and by the United            States Court of  Appeals for  the Eleventh Circuit.   To  the            extent  that the  FMC's  order is  prospective  and does  not            involve sums awarded by the judgment entered, we affirm.                      PRMSA  carried four  shipments  of frozen  food and            other  items to  San Juan,  Puerto  Rico for  SOS.   When SOS            refused  to pay about $11,000 of PRMSA's bill, PRMSA began an            action  against SOS in  the federal court  in Florida seeking            the unpaid  freight charges,  interest, collection  costs and            attorneys' fees  pursuant to  the  terms of  PRMSA's bill  of            lading  to SOS.1   Jurisdiction  was under  the maritime  and                                            ____________________            1.  PRMSA's lawsuit in federal district court was filed by an            agent of PRMSA, Puerto  Rico Marine Management, Inc. (PRMMI),            and the judgment  in the federal court action ran in favor of                                         -3-                                          3            admiralty  jurisdiction of  the federal  courts, 28  U.S.C.              1333.  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  be jointly and severally liable                      to  Carrier  for  the   payment  of  all   freight,                      demurrage,  General  Average  and   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;  PRMSA filed a cross  motion.            SOS lost on both motions.  The court awarded PRMSA the unpaid            freight, attorneys'  fees and  costs, enforcing the  terms of            the bill of lading.                      SOS moved  for reconsideration and then  for a stay            of  the  district  court   proceeding  while  SOS  pursued  a            complaint (FMC Docket  No. 92-12) it had  filed (after losing            the  summary   judgment  motions)  before  the   FMC.    That            administrative   complaint   challenged,   inter  alia,   the                                                       _____  ____            attorneys' fees provision of the  tariff upon which the  bill            of  lading was  based,  but did  not  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.    816 and 817(a)            (the 1916  Act), and section  2 of the  Intercoastal Shipping                                            ____________________            PRMMI.   Because the distinction  between PRMSA and  PRMMI is            unimportant to the disposition of this petition, this opinion            refers only to PRMSA.                                         -4-                                          4            Act  of  1933, 46  U.S.C.  app.    844  (the 1933  Act).   It            involved  seven  shipments  on  which PRMSA  had  not  sought            freight  collection  in  the   court  action.    Because  the            shipments had occurred two  years prior to the filing  of the            administrative complaint, SOS sought only  prospective relief            in the form  of cease and desist orders.   SOS's motion for a            stay of  the district  court proceedings  was the first  time            that SOS argued before the district court that the attorneys'            fees  provision might  be  illegal or  unreasonable and  thus            unenforceable because it  was unilateral.   The motion for  a            stay   did  not   argue  that   the  district   court  lacked            jurisdiction  over   the  attorneys'  fees  issue.    Rather,            recognizing   that  primary   jurisdiction  is   a  rule   of            "deference" and  not of jurisdiction, it  argued that primary            jurisdiction  was in the FMC.  The district court denied both            of SOS's motions.                      SOS  appealed the  judgment  to the  United  States            Court of Appeals for  the Eleventh Circuit and moved  to stay            the appellate  proceedings or,  in the alternative,  to refer            the   case  to  the   FMC  under  the   doctrine  of  primary            jurisdiction.   The  Eleventh Circuit  denied the  motion for            stay.  It later affirmed the district court, without opinion,            and  denied the  motion  for referral  as  moot.   PRMSA  was            eventually awarded attorneys' fees and costs of approximately                                         -5-                                          5            $100,000.  The  parties do not  identify any further  appeals            taken by SOS in the federal court action pertinent here.                      Having lost  in federal  court, SOS filed  a second            complaint  before the  FMC  (FMC Docket  No. 93-21)  directly            challenging the attorneys' fees awarded on the four shipments            that  were   at  issue  in   the  Eleventh  Circuit.     This            administrative  complaint also  alleged that  the tariff  and            bill of lading language  concerning attorneys' fees and costs            was  unlawful  and  unreasonable.    It   sought  reparations            pursuant to section 22(a)  of the 1916 Act, 46  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  FMC agreed  with  SOS on  the attorneys'  fees            issue.  The FMC held that  because the bill of lading  tariff            provision was  unilateral (allowing the carrier,  but not the            shipper,  to recover fees and costs), it was in conflict with            an FMC decision,  West Gulf Maritime  Ass'n v. Galveston,  22                              _________________________    _________            F.M.C.  101   (1979),  and  the  provision   was  unjust  and            unreasonable.  It granted SOS's relief in both FMC Docket No.            92-12 and  FMC Docket  No. 93-21.   In  so doing,  it decided            three issues  of relevance here.   It first  rejected PRMSA's            argument that  claim preclusion barred  the reparations claim            in FMC Docket No. 93-21 as  to the four shipments involved in                                         -6-                                          6            the  court action.    It next  ordered PRMSA  to pay  back as            reparations  in  FMC  Docket   No.  93-21  any  amount  PRMSA            collected in  attorneys' fees  pursuant to the  federal court            judgment.  It also granted SOS's motion for summary  judgment            in  FMC Docket  No. 92-12  seeking a  cease and  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  petitioned here for review  of the FMC's            order.    The FMC  and  the  United  States are  respondents;            Stanley  Hecht,   president  of  SOS,  has   appeared  as  an            intervenor.2    In  its  petition, PRMSA  presses  the  claim            preclusion argument it made  before the FMC.  It  also claims            that  the FMC's decision on the merits of the attorneys' fees            issue was error.                       Because the question of claim preclusion is  purely            a  matter of law within  the expertise of  the federal courts            and  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  Hecht.  Midway  through the litigation,  SOS            represented  that  it  had  gone  out  of  business, and  the            litigation  was carried on only in the name of Stanley Hecht.            In this opinion, "SOS" designates both parties.                                         -7-                                          7            within the powers vested  in courts by the  Judiciary Article            of the  Constitution may not lawfully  be revised, overturned            or  refused  faith  and   credit  by  another  Department  of            Government."  Chicago & Southern Air Lines, Inc. v.  Waterman                          __________________________________     ________            S.S. Corp., 333  U.S. 103,  113 (1948).   Because we  believe            __________            that  FMC Docket  No.  93-21 was  barred under  principles of            claim preclusion, we  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  court action.   We do  not, however,  believe            that FMC  Docket No. 92-12  was barred  and, in light  of our            deferential review of the FMC's  construction of a statute it            administers, see  Chevron U.S.A.,  Inc. v.  Natural Resources                         ___  _____________________     _________________            Defense Council,  467 U.S.  837 (1984),  we affirm  the FMC's            _______________            order in that case.                      1. FMC  Docket  No. 93-21:  The Reparations  Claim.                         _______________________________________________            Since  the identity  of the  parties and  the existence  of a            final  judgment on the merits are not in dispute, the parties            have  focussed  on  whether  there  was  sufficient  identity            between  the  causes  of  action actually  litigated  in  the            federal court action and the claim for reparations before the            FMC.  We do not enter the fray, as do the parties,  for under            the principle of claim preclusion,  "'a final judgment on the            merits of  an action precludes  the parties or  their privies            from relitigating issues  that were or could have been raised                                                   ______________________                                         -8-                                          8            in  that action.'"  Manego v.  Orleans Bd. of Trade, 773 F.2d                                ______     ____________________            1, 5  (1st Cir. 1985) (quoting Allen v. McCurry, 449 U.S. 90,                                           _____    _______            94 (1980)  (emphasis supplied)), cert. denied,  475 U.S. 1084                                             _____ ______            (1986);  accord  Kelly v.  Merrill  Lynch,  Pierce, Fenner  &                     ______  _____     __________________________________            Smith, Inc., 985  F.2d 1067, 1070 (11th  Cir.), cert. denied,            ___________                                     _____ ______            114 S. Ct. 600 (1993).                      The   claims   of   unreasonableness,  and   hence,            illegality, of the attorneys' fees  provision in the bill  of            lading could  have been raised  as an affirmative  defense in            the  action  over  which   the  district  court  plainly  had            jurisdiction.       Although    SOS   could    have    raised            unreasonableness as  an affirmative defense and requested the            district court to stay  the action and refer the  question to            the  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  546, 549 (3d Cir. 1988)  (referral to            ____________            Interstate  Commerce Commission),  the decision to  refer was            within the discretion of  the federal court.   Valley Freight                                                           ______________            Sys.,  856 F.2d at 549.  The doctrine of primary jurisdiction            ____            does  not implicate  the subject  matter jurisdiction  of the            federal court.  Id.                            ___                      Normally,  this would  be  the end  of the  matter.            Under the transactional approach of the Restatement  (Second)            of Judgments    24  (1980) applicable  here, see Manego,  773                                                         ___ ______                                         -9-                                          9            F.2d at  5; see also Wallis  v. Justice Oaks II,  Ltd. (In re                        ___ ____ ______     _____________________________            Justice Oaks  II,  Ltd.), 898  F.2d  1544, 1551  (11th  Cir.)            ________________________            (applying   Restatement's   transactional  approach),   cert.                                                                    _____            denied,  498 U.S.  959 (1990), defendants  can no  more split            ______            defenses arising  out of  the same transaction  or occurrence            than plaintiffs can split claims.  Even if  SOS's reparations            claim  before  the FMC  is  characterized  as a  counterclaim            rather  than  an  affirmative  defense,  it  would not  be  a            separate cause  of action.   The reparations claim,  which is            based on the very same four shipments at issue in the federal            court  collection  action,  clearly  arose out  of  the  same            transaction  or occurrence  and  virtually all  of the  facts            necessary  to the  reparations  claim would  have formed  the            basis of a  defense to the collection action.   Cf. Pirela v.                                                            ___ ______            Village  of North Aurora, 935 F.2d 909, 912 (7th Cir.), cert.            ________________________                                _____            denied, 502 U.S. 983 (1991).            ______                      Indeed,   the   required   joinder  of   compulsory            counterclaims,  see Fed.  R.  Civ. P.  13(a) and  Restatement                            ___            (Second) of Judgments    22, is  designed to prevent  parties            from hiding  behind formal distinctions between  defenses and            counterclaims.  Under  usual circumstances, SOS's reparations            claim would be a compulsory counterclaim and SOS's failure to            assert  it in the federal  court action would  have barred it            from bringing it in a subsequent action.  See id.                                                      ___ ___                                         -10-                                          10                      The  FMC urges  that those  usual rules  should not            apply,  relying  on the  opinion  in  Government  of Guam  v.                                                  ___________________            American President Lines, 28 F.3d 142 (D.C. Cir. 1994).  That            ________________________            case held that there is no express or implied cause of action            in federal  district courts  over reparations claims  brought            under either the  1916 Act or  the 1933  Act.3  The  argument            goes that SOS  cannot be barred  from pursuing a  reparations            action  that  could  not  have been  brought  in  the federal            district  court.  That argument begs the question.  The issue            here  is  whether  principles  of claim  preclusion  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  shippers first  initiated an                    ___________________            action before  the FMC  against carriers for  reparations for            rates  alleged to be unlawful  under the 1916  and 1933 Acts.            The  shippers  later filed  a  virtually  identical claim  in            federal court  which the court  dismissed.  The  D.C. Circuit            affirmed the dismissal.  The  shippers conceded that the  FMC            had the task of resolving the  merits of the dispute, 28 F.3d            at  144, and there was  no private cause  of action expressly            provided in the 1916 and 1933 Acts for a shipper to challenge            a carrier's rates in  federal court.  The shippers  sought to            continue  the  court action  in  order  to preserve  ultimate            claims of a  class, claims which the FMC could  not hear, and            argued  there was  an  implied cause  of  action.   The  D.C.            Circuit declined to imply a cause of action.                      In  contrast,  here, the  carrier  had  a cause  of            action  that was properly before the federal court.  There is            little reason  to think the Government of Guam court intended                                        __________________            to resolve  a dispute of  the sort  faced on the  facts here.            Indeed,  in a separate part of the opinion, the Government of                                                            _____________            Guam  court declined  to  give the  shippers relief  from the            ____            consequences of  their failure  to have raised  certain legal            theories in the district court.  Id. at 149-50.                                               ___                                         -11-                                          11            the  district court claim and  which, if it  had been raised,            could have provided the same relief.                      A defendant  is barred from  relitigating a defense            which was available in a prior action by making it  the basis            of  a claim that would "nullify the initial judgment or would            impair   rights   established   in   the   initial   action."            Restatement (Second) of Judgments    22(2)(b).  A defendant's            failure to raise such a defense precludes  the defendant from            seeking restitution  of the amount that may have been awarded            to the plaintiff in the first action.  Id. cmt. b & f, illus.                                                   ___            2, 3,  9.  The reparations  action SOS seeks in  this case is            precisely the type of  restitutionary remedy that, under this            rule,  is barred.    Were SOS  to  be allowed  a  reparations            remedy, the  district court's award of  attorneys' fees would            be  rendered  totally  meaningless   and  there  would  be  a            concomitant waste of  judicial resources.  We hold that SOS's            claim for reparations before the FMC is barred.                      The  policies of  economy,  efficiency, repose  and            fairness underlying  the claim  preclusion doctrine are  best            served  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.  A  defendant  must,  of  course,  have  a  full and  fair            opportunity to raise the  claim in the first action.   In the            analogous  situation  of  plaintiffs'  claim  splitting,  for                                         -12-                                          12            so,  SOS  neither raised  the  reparations  claim before  the            federal  court nor argued that there was no jurisdiction over            the  attorneys' fees  issue.   SOS,  as  a result,  gains  no            benefit  from  any   jurisdictional  competency  or   "formal            barrier" exception to the doctrine  of claim preclusion.  Cf.                                                                      ___            Restatement (Second)  of Judgments   26(1)(c).   Further, the            Government of Guam  outcome was not supported by precedent in            __________________            the Eleventh  Circuit  nor is  it  binding on  that  circuit.            Indeed, the FMC  itself has  in the past  taken the  position            that  federal  courts   have  concurrent  jurisdiction   over            reparations claims brought  under section 22 of the  1916 Act            and  that  a  reparations  counterclaim could  be  raised  in            federal  district court.    See Interconex,  Inc. v.  Federal                                        ___ _________________     _______            Maritime Comm'n, 572 F.2d 27, 30 (2d Cir. 1978).            _______________                      There is virtually  no practical difference between            the relief SOS  could have received before the district court            and what it sought before  the FMC.  The legal theory  -- the            unreasonableness of the  unilateral attorneys' fees provision            -- was available to  SOS in the district  court action.   The            extent of the  relief sought  -- relief from  payment of  the            attorneys' fees -- was available in the district court.                                            ____________________            example, the Restatement recognizes that the first court must            have   been  competent   to  adjudicate   the  claim.     See                                                                      ___            Restatement (Second) of Judgments   26(1)(c);  see also id.                                                             ___ ____ ___            22(2)  (claim preclusion  over  counterclaims  is limited  to            claims  that the  defendant  "may [have]  interpose[d]" as  a            counterclaim in the first action).                                            -13-                                          13                      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  have failed to raise fraud  and forgery defenses            in state  court actions have  been barred from  bringing RICO            claims in  federal court based  on allegations  of fraud  and            forgery even where  jurisdiction over the RICO claim may have            been  exclusively federal.   See, e.g., Henry  v. Farmer City                                         ___  ____  _____     ___________            State Bank,  808 F.2d  1228, 1236-37  (7th  Cir. 1986);  cf.,            __________                                               ___            also, Pirela, 935 F.2d  at 912.  The underlying  rationale is            ____  ______            that  claim preclusion applies if the formal barriers did not            prevent the party  from a  full and fair  opportunity in  the            first action to  litigate the substance  of the legal  theory            advanced and remedy sought in the second action.                      Finally, the results  reached here with respect  to            the reparations  action are  not outweighed by  concerns over            the  1916 and 1933 Acts' statutory scheme.  Cf., e.g., United                                                        ___  ____  ______            States v. American Heart  Research Found., Inc., 996 F.2d  7,            ______    _____________________________________            11 (1st  Cir. 1993) (claim-splitting limitation relaxed where            applying  it  would  frustrate  a statutory  objective).    A            different  factual setting  might more  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                                         -14-                                          14            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  provisions in  carrier tariffs  does not            justify  upsetting   the  strong  policy  of  honoring  final            judgments  entered   by  federal   courts.    Cf.   Plaut  v.                                                          ___   _____            Spendthrift Farm,  Inc., 115 S. Ct.  1447 (1995) (retroactive            _______________________            legislation which reverses a judgment within the power vested            by  the   courts  is  unconstitutional  as   a  violation  of            separation  of  powers).   Nor does  it excuse  compliance by            litigating  parties  with  general  rules  of  federal  claim            preclusion.                      SOS  had a  range  of actions  available, which  it            chose  not  to  follow,  that  would  have  accommodated  the            interests of both  the judicial  and administrative  systems.            Before SOS was  sued, it could have paid PRMSA's bill and the            fees  and  then  brought  an   action  before  the  FMC   for            reparations.    Alternatively,  once  sued,  SOS  could  have            asserted an  affirmative defense of illegality and/or brought            a  reparations counterclaim  in district  court and  sought a            ruling on  the question of  whether there was  subject matter            jurisdiction  over  the reparations  counterclaim.   It could            also have  brought a timely  action in the  FMC and  it could            have  asked in  a timely fashion  for a stay  of the district            court action or  a primary jurisdiction  referral.  It  could                                         -15-                                          15            also  have  asked the  district  court to  make  its decision            without  prejudice to pursuing  the reparations  claim before            the FMC.  See Restatement (Second) of Judgments   26(1)(b).                      ___                      On  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  result  reached  here  coincides  with  the  results            reached  in  Delta  Traffic Serv.,  Inc.  v.  Georgia-Pacific                         ___________________________      _______________            Corp., 936  F.2d  64  (2d Cir.  1991),  which  addressed  the            _____            jurisdictional  relationship between  the federal  courts and            the   Interstate   Commerce   Commission   (ICC)   over  rate            reasonableness  issues.   In  that case,  the Second  Circuit            denied requests to remand  the case to the district  court to            assert rate  reasonableness defenses that were  not raised in            the  district court,  but stated  that Georgia-Pacific  could            nevertheless continue to pursue  a reparation action based on            rate unreasonableness  before the ICC.   See id.  at 66.   In                                                     ___ ___            Georgia-Pacific, however, Georgia-Pacific requested a stay of            _______________            the  district  court  action  and   a  referral  to  the  ICC            "[c]oincident with the service of its answer"  in the federal            action.   Id. at 65.  Moreover, the rate reasonableness issue                      ___            was  pending before  the ICC  before judgment entered  in the            federal  court action.  Aware  of the ICC  action, the Second            Circuit carefully  limited the  scope of its  decision, which            may  have restricted  any claim  preclusive effects  it might            otherwise have had.  Id.  at 66; see 18 Charles A.  Wright et                                 ___         ___            al., Federal Practice  and Procedure   4413 (1981).  Georgia-                 _______________________________                 ________            Pacific does not stand  for the proposition that a  party may            _______            collaterally  attack  a  federal court's  final  judgment  by            raising  before an  agency a  claim based  on a  defense that            could  have been, but was  not, raised in  the federal court.            Indeed,  in a  similar case  the Second  Circuit had  earlier            refused to undermine a  federal district court judgment based            on a rate unreasonableness defense raised for the  first time            on  appeal.  See Delta Traffic Service, Inc. v. Appco Paper &                         ___ ___________________________    _____________            Plastics Corp., 931 F.2d 5, 7 (2d Cir. 1991).            ______________                                         -16-                                          16                      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.  As PRMSA states            in its brief, the seven shipments at issue in  FMC Docket No.            92-12  were never part of the federal court action brought by            PRMSA.  Even if  these seven shipments arose out  of the same            transaction  or occurrence  (which is  unclear on  the record            before  us), as they  must for  PRMSA successfully  to assert            claim preclusion,  the bar would  work against PRMSA.   PRMSA            would  then have  split its  claim and  would be  barred from            suing  on the seven shipments.  A defendant has no obligation            to raise  affirmative defenses to  claims that have  not been            brought against it.  Cf.  Restatement (Second) of Judgments                                   ___            22 cmt. b.                       The pertinent statutes are  silent on the merits of            whether the  attorneys' fee  provision in PRMSA's  tariff and            bill of  lading was  unreasonable because it  was unilateral.            We  defer to  the expertise  of the  FMC on  the issue.   See                                                                      ___            Chevron,  467 U.S. at 842-43.   Section 18(a) of the 1916 Act            _______            provides  that carriers  will enforce  "just  and reasonable"            tariffs  and practices  relating  thereto. 46  U.S.C. app.               817(a).   The FMC, which administers the 1916 Act, is charged            with deciding whether  a carrier's tariff and  bill of lading            is "just  and reasonable."   In light of the  fact that these            provisions are  ubiquitous  and shippers  have no  meaningful                                         -17-                                          17            ability  to  avoid  the  provision,  the  FMC held  that  the            attorneys'  fees  and  costs   provision  was  not  just  and            reasonable under  a prior  analogous FMC decision,  West Gulf                                                                _________            Maritime Ass'n  v. Galveston,  22 F.M.C. 101  (1979) (holding            ______________     _________            unreasonable under section  17 of the 1916  Act an attorneys'            fees provision  that allowed a  terminal operator, but  not a            user,  to collect attorneys' fees).   We recognize that, West                                                                     ____            Gulf   notwithstanding,  two   of  the   FMC's  commissioners            ____            dissented  from  the  decision  at issue  here  and  that the            question of unreasonableness of the attorneys' fees provision            is by no  means free from doubt.   But the FMC's construction            of the statute appears  to be permissible.  See  Chevron, 467                                                        ___  _______            U.S.  at 842-43.  We therefore affirm the FMC's order insofar            as it relates to FMC Docket No. 92-12.                                     Conclusion                       The  judgment  of  the  FMC is  reversed  in  part,                                                      ________            affirmed in part, and remanded  with directions that the  FMC            ________________      ________            dismiss  FMC  Docket  No.  93-21  and  modify  its  order  in            accordance with  this opinion.   Parties  to bear  their  own            costs on appeal.  It is so ordered.                              ________________                                         -18-                                          18
