Full Volume 19 - Federal Maritime Commission

AGREEMENT NO T 2336 287
The facts are that the dollar figures are greater for 1971 1974 than for
19691971 That is the Puerto Rican carriers were underassessed about
5 million in 19691971 and overassessed about 75 million in 1971 1974
Similarly if the States Marine group as alleged was overassessed about
715 000 in 19691971 then also it was underassessed about 750 000 in
1971 1974 with allowances being made in the latter figure for the fact
that States Marine International Inc including Isthmian Lines and
Meyer line ceased operations in the Port of New York during the 1971
1974 period Exhibit no 157 Thus there is no merit to the contention of
the States Marine group that it was overassessed by NYSA
Another allegation ofthe States Marine group relates to the alleged
surplus question The States Marine group in its brief makes claim for the
first time for a total of 1 313 000 brief page 39 or 1 315 600 brief
page 38 of an alleged surplus of 9 200 000 in NYSA s fringe benefit
funds as of September 30 1971 The record as to the alleged surplus
came from cross examination of a NYSA witness And in fact the 9 2
million was afigure for total NYSA activity which only in part included
fringe benefits under agreement no T 2390 No precise figure was
developed for these benefits The burden here was on the States Marine
group which failed to meet its burden of proof The record shows that
this claim for a share of the alleged surplus was never raised at any time
in the hearing the claim was never made the subject of proof it was
never mentioned in the States Marine group s written direct case or in its
oral rebuttal The States Marine group state on brief that we have direct
rights against the Puerto Rican carriers because that is what this litigation
is all about But the States Marine group is barred from any rights
against the Puerto Rican carriers As an alternative the States Marine
group turns and seeks to exercise a claim against NYSA In the second
decision there was no finding that the States Marine group was
improperly assessed or that it deserved any share of any alleged surplus
What the States Marine group is now trying to do is not to uphold the
second decision but to attack the manner in which NYSA has adminis
tered and implemented the assessment formula of agreement no T 2390
The States Marine
group
have concocted an alleged right predicated upon
no T 2390 to conclude
the non existent duty of NYSA under agreement
the administration ofthat agreement with azero balance in its assessment
account Nowhere in agreement no T 2390 is there any requirement that
NYSA must so administer the assessment program In fact that was a
practical impossibility in view of the difficulties in forecasting tonnages
and fringe benefit expenses including GAL
NYSA did not collect assessments under no T 2390 for its own use
rather it did so as the fiduciary for the fringe benefit funds NYSA cannot
now refund
any
monies from the alleged surplus because the surplus has
been expended or to the extent any surplus exists NYSA consistent with
labor law and internal revenue service law must utilize its funds for
prospective fringe benefit obligations
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