remedial actions to preclude the possibility of continuing adverse effects from its past practices would be of limited value and would not appear to serve a regulatory purpose. The only matter of continuing significance raised in this proceeding is the issue of the Commission's jurisdiction over the contract practices now (other than those involving service contracts) of carriers which are also operating as common carriers with tariffs on file. Although CMC has asserted that it will file its service contracts with the Commission in accordance with the 1984 Act, Hearing Counsel is correct in asserting that the 1984 Act does not clearly put to rest all the underlying jurisdictional uncertainties that essentially gave rise to this proceeding. However, as is the case with CMC's alleged violations of the substantive provisions of the 1916 Act, a jurisdictional decision in this case based on circumstances and the law existing prior to June 18, 1984 would be of little value in administering the 1984 Act. The Commission is of the opinion that a rulemaking proceeding, wherein all interested and affected parties may contribute their views, would be a better vehicle to address this remaining issue. It is our intention therefore to initiate such a proceeding by separate order. THEREFORE, IT IS ORDERED, That the Motion to Dismiss filed by Contract Marine Carriers, Inc. is granted; and, IT IS FURTHER ORDERED, That this proceeding is discontinued. By the Commission. (S) FRANCIS C. HURNEY Secretary Each service contract entered into by a shipper and an ocean common carrier or conference before the date of enactment of this Act may remain in full force and effect and need not comply with the requirements of section 8(c) of this Act until 15 months after the date of enactment of this Act. CMC cites the following passage of the legislative history of the 1984 Act as explanatory of the Congressional intent underlying section 20(e)(1): The Committee's intention in this, as well as other sections of the act is to institute changes in liner shipping regulations and practices without undue or unnecessary economic disruption. S. Rep. No. 3, 98th Cong., 1st Sess. 42 (1983). FEDERAL MARITIME COMMISSION DOCKET NO. 82-49 REEFER EXPRESS LINES, PTY., LTD. V. UITERWYK COLD STORAGE CORPORATION, ELLER AND ORDER OF REMAND JULY 27, 1984 This proceeding was initiated by the filing of a complaint by Reefer Express Lines, Pty. Ltd. (REL) against Uiterwyk Cold Storage Corporation (Uiterwyk), Eller and Company (Eller) and the Tampa Port Authority (Port Authority) alleging that: (1) a charge for "warehouse checking" is a charge for a service not actually performed and, therefore, is an unreasonable and unjust practice in violation of section 17 of the Shipping Act, 1916 (46 U.S.C. §816); (2) the charge is not reflected in the Uiterwyk and Harborside tariffs, but is based on cross-referencing in those tariffs to the Port Authority's tariff, in violation of section 17; and (3) the Port Authority's tariff represents an agreement among terminal operators which is not approved by the Commission in violation of section 15.1 Complainant asks the Commission to disapprove the charge for warehouse checking and to direct Respondents to cease and desist from attempting to collect such charges. A prehearing conference was held in February, 1983 and evidentiary hearings were held in June, 1983 for the purpose of receiving written. direct testimony and live cross-examination of three witnesses, one each for REL and Respondents Eller and the Port Authority.2 Simultaneous opening and reply briefs were filed by all parties. Administrative Law Judge Charles E. Morgan (Presiding Officer) issued an Initial Decision finding that the physical activity of warehouse checking has been performed on cargo carried by REL, which service is of at least some benefit to the ocean carrier. The Presiding Officer also found that the charges for warehouse checking were not shown to be unjust and unreasonable in violation of section 17; the practice of Uiterwyk and REL also charged that the Port Authority's tariff had not been filed with the Commission, but admitted at the prehearing conference that this allegation was in error. 2 No appearance was made by Uiterwyk. Its interest in the cold storage facility was purchased by Harborside Refrigerated Services, Inc. (Harborside). Uiterwyk is now in bankruptcy proceedings. Prehearing Conference Transcript, 6-7. Eller of incorporating by reference in their tariffs the warehouse checking charge of the Port Authority was not an unjust or unreasonable practice; and that the Port Authority's tariff was not an unapproved agreement among terminal operators. BACKGROUND REL is a common carrier by water in the U.S. foreign commerce which serves the export trade from the Port of Tampa (Port) with refrigerated vessels. Uiterwyk was the operator of a cold storage terminal facility at the Port. Eller, through its wholly-owned subsidiary, Harborside, was the successor to Uiterwyk's operation at the Port. The Port Authority is a public body established by statute to prescribe rules, regulations and rates for the Port of Tampa. See Exhibit 6B, Appendix A. The disputed charge is for warehouse checking, defined in the Port Authority's Tariff FMC No. 8; Item 285 as: The employment of warehouse clerks and checkers, as differentiated from shipside clerks and checkers, in delivery of inbound cargo upon commencement of discharge of cargo and the end of the Free Time allowance; or, in receipt of outbound cargo from the beginning of the Free Time allowance until completion of the loading aboard vessel of the cargo. "Warehouse Checking" is assessed against the carrying vessel based on total inbound and outbound cargo manifest weight.3 The complaint charged that no service describable as "warehouse checking" had been requested by REL or performed by Uiterwyk or Eller. The complaint further alleged that the charge was an "arbitrary charge imposed for no service." The Presiding Officer found that warehouse checking is an actual service performed by terminal personnel, which consists of tallying cargo on receipt by the terminal from an overland carrier, and upon discharge from the cold storage facility to the vessel, and includes preparation of dock receipts and loading lists as well as acting as the interface of product/cargo information between the terminal and vessel's stevedore so that the cargo can be delivered to the vessel for loading in an efficient and reasonable manner. I.D., 4-6. Warehouse checking was described by Eller's witness Francis S. Cunningham, General Manager of Harborside, on cross examination as 3 At REL's urging, after the complaint herein was filed, the Port Authority's tariff was amended, effective October 1, 1982 to shift responsibility for the warehouse checking charge from the vessel in all cases to the "party responsible for stevedoring charges," and to add language permitting the party responsible for payment to request that warehouse checking not be performed. However, in the latter instance, the amended tariff provides that "the terminal operators will not be responsible for any overages and/or shortages." Port of Tampa Tariff FMC No. 8, Item 285. Since October, 1982, REL has requested that warehouse checking not be performed. ELLER & CO., INC. & TAMPA PORT AUTHORITY "tallying upon receipt from trucks or railcars of cargo by mark or lot number, by count, at times by weight and condition before placement into the warehouse... to tallying, the checking of condition, marks, lot numbers upon presentation of that cargo to a stevedore for loading on board a vessel." Transcript 69. REL's Director of Terminal Operations admitted in both his written direct testimony and at the hearing that he had seen warehouse employees, other than forklift operators, checking and tallying export cargo both upon arrival at the refrigerated terminal facility (Direct Testimony 2, Transcript, 13) and discharge from the warehouse to the vessel (Transcript, 16). The Presiding Officer concluded that warehouse checking "is of some benefit" to the vessel "insofar as the terminal arranges to check out and deliver the cargoes by ports of discharge, by consignees, quantities, lots and weights... [which] enables a smooth flow of cargo from the terminal to the ship." I.D., 8. REL contends that its tariff provides for "tackle-to-tackle" service which renders it inappropriate to charge the vessel for services rendered to the cargo before it reaches the place of rest beneath ship's tackle, citing Terminal Rate Structures, Pacific Northwest Ports, 5 FMB 53 (1956).4 REL's argument that the warehouse checking service charge would fall upon the shipper under its "tackle-to-tackle" tariff was offset, in the Presiding Officer's view, by the charge's coverage of "other services of benefit to the ship, such as listing the cargo by lot and by various shippers and consignees, for segregated delivery by separate consignees, ports of discharges, and alongside different hatches of the vessel." I.D., 8. Therefore, the Presiding Officer concluded that the charge for warehouse checking levied against the vessel or the party responsible for stevedoring was not an unjust and unreasonable practice in violation of section 17. The Presiding Officer further concluded that, no evidence having been offered as to the level of the charges, the actual charges for warehouse checking had not been shown to be unjust and unreasonable. Noting that Agreement No. T-2291 among the terminal operators of the Port of Tampa provides that such operators will conform to the tariff of the Port Authority, except to the extent that the Port Authority's tariff is silent or inapplicable, the Presiding Officer found that incorporation by reference of the Port Authority's warehouse checking charges in the Uiterwyk and Eller tariffs was not an unjust or unreasonable practice. Finally, the Presiding Officer concluded that the Port Authority's tariff had not been shown to be an agreement among the Port Authority and terminal operators in violation of section 15. 4REL's Tariff FMC No. 4 contains the following Rule 2A: "Except as otherwise provided, rates named herein. . . are applicable from end of ships tackle at loading port and include only the on-shore cost or on-lighter cost of hooking sling load to ships gear." Quoted in Complainant's Brief, 8. DISCUSSION Exceptions to the Initial Decision were filed by REL; Eller and the Port Authority replied to the Exceptions. REL's Exceptions generally reargue contentions advanced in its initial brief. These include the arguments that otherwise permissible terminal charges for checking do not fall on the vessel under a tackle-to-tackle tariff such as its own; that the checking function is performed as part of the general obligation of a terminal as bailee of the cargo, for its own convenience and protection, and may not be separately charged for; that the cross-references in the Uiterwyk and Harborside tariffs are misleading, confusing and unlawful; and that the Port Authority's tariff constitutes an unapproved section 15 agreement among the terminal operators and the Port Authority.5 REL further excepts to the reasoning of the Initial Decision in that it permits assessment of the entire charge for checking against the vessel on the basis of incidental benefits, without explicitly rejecting REL's contentions regarding its tackleto-tackle tariff. Respondents argue on exceptions that REL has failed to meet its burden of proof and that its arguments on issues such as its tackle-to-tackle tariff and allocation of the charges were not encompassed by its complaint which alleged only that no physical service which could be identified as "warehouse checking" had been performed.6 Most of REL's Exceptions concern issues correctly decided by the Presiding Officer. Other issues raised, however, require further investigation. These include the question of who benefits from and should bear the charge for the warehouse checking function, and what effect REL's tackle-totackle tariff provision may have on the assessment of terminal charges.7 The Commission's cases indicate two separate bases for terminal charges assessed against a vessel: services performed for or benefits conferred upon the vessel, as distinct from those performed for cargo interests; and performance by the terminal of a function which the carrier is obliged to perform as part of the transportation function. In holding that the charge for warehouse checking may be assessed solely against the vessel, the Presiding Officer characterizes the function as being of "some" benefit to the vessel, apparently recognizing that 5 REL's argument with respect to the obligations of a terminal being analogous to those of a "common carrier' cites the Commission's cases concerning the general responsibilities of a common carrier for provision of terminal services for safe receipt and delivery of cargo. This argument ignores the difference between a common carrier by water and a terminal operator which underlies the Commission's terminal cases: the terminal operator performs services for more than one master and is therefore obliged to charge each proportionately for the services performed or the benefits conferred. 6 Eller, however, in its brief below, characterized REL's complaint as being, inter alia, that the charge for warehouse checking was an arbitrary charge imposed for no actual service "and/or no actual physical service of any benefit to REL; * * *"' Eller's Opening Brief, 2. This seems to be a fair reading of the issues raised by REL's complaint, without overreliance on strict rules of pleading. Such a reading also indicates that the issue of who benefits from the terminal service was understood to be raised by the complaint. 7REL's tariff was not introduced in evidence, but was identified and quoted in REL's opening brief. The Presiding Officer and the Commission may take judicial notice of any tariff on file. |