Full Volume 19 - Federal Maritime Commission

KRAFr FOODS v MOORE McCORMACK LINES
upon delivery of the cargo to the loading pier
409
but that the 284 cubic foot
measure shown on the bill of lading and the reverse side of the dock
receipt was the measure observed upon delivery
In support of its claim complainant has submitted the following
IA copy of its sales invoice No 01186 indicates that a shipment was
to be delivered to Moore McCormack on December 28 1972 to be
shipped on the S S Mormacbay to Nairobi Supermarket via Mombasa
The invoice indicates that the shipment was to consist of
15 cases 5862 12 6 I oz Noodles Romanoff
25 cases 5873 16 1 lb 313 oz Spag W MT See
15 cases 6073 24 10 foz Min Col F1av Marsh
20 cases 6080 611 lb Min Marshmallow W
40 cases 6100 24 10 oz Jet PuffMarshmallow
2 A copy
of Moore McCormack Lines bill of lading No 126 dated
December 29 1972 covering a shipment on the S S Mormacbay by
complainant to Nairobi Supermarket via Mombasa The bill of lading
indicates that the shipment consisted of 40 cases of Noodle Dinner
Spaghetti Dinner measuring 67 cu ft and 75 cases of Marshmallows
measuring 217 cu ft for atotal of 284 cu ft
3 A copy of Moore McCormack Lines dock receipt which indicates it
covers complainant s invoice No 01186 and BL 126 delivery date
December 28 1972 The front of the dock receipt describes the shipment
the same as the bill of lading except the measurement for the Noodle
Spaghetti Dinner is stated as 32 cu ft and for the Marshmallows is stated
as 114 cu ft with a total of 146 cu ft The back of the dock receipt
contains handwritten notations listing the measurements of undescribed
lots of30 10 20 30 and 25 packages The total measurement is stated as
283 50 cu ft
4 Copies of complainant s price list pages which indicate the standard
measurement ofcomplainant s products identified by Product Nos which
coincide to those listed in complainant s Invoice No 01186
5 A reconstructed packing list dated March 9 1973 which totals the
cubic measurement for the number and type of products listed in the
shippers invoice using the standard cube listed in the shippers price list
The total cubic measurement computes to 145 01 cu ft
DISCUSSION
The lesson of the Court of Appeals opinion in Kraft is clear Tariff
provisions of the type involved here Rule 16 cannot be used before the
Commission to defeat a claim for reparation which was otherwise properly
ftled within the two year statute of limitation period Notwithstanding the
existence of such a tariff provision properly filed claims must be
considered on their merits
In considering such claims determination of the applicable rate shall be
based on what can be shown is the true nature of the commodity shipped
19 F M C