Full Volume 19 - Federal Maritime Commission

536 FEDERAL MARITIME COMMISSION
On August 13 1973 that provision was changed so as to delete the phrase
Container Yard CY As so changed the provision was as follows
The Handling Charge will not apply
6On cargo tendered at Container Freight Station CFS or carrier s dock and movinll
under the provisions of Rule No 70 B See Rule 70 B parallraph lb for container
service charge
The Rule was not further changed until April 1 1974 The Rule 70 B
paragraph 1 b referred to in Rule No 19 c 6 was Rule No 7B1b
which provided for the assessment of a container service charge of
varying amounts on cargo parked into containers by the carrier
Complainant was assessed the handling charge on all of its shipper
packed containers shipped via Respondents on and after August 14 1973
On October 10 1973 Complainant communicated to the Pacific West
bound Conference its oijection to the assessment of the handling charge
Thereafter the Pacific Westbound Conference tiled with this Commission
an amendment to the exempting provision of Rule No 19 c 6 so as to
provide that the handling charge would not apply on cargo tendered at
carrier s Container Freight Station CFS or dock for packing into
containers by carrier under the provisions of Rule No 70 B See Rule
70 B paragraph l b for application of container service charge That
amendment was to have been effective on October 17 1973 and recited
that it was fIled for clarification of the language The amendment was
rejected by the Bureau of Compliance ofthis Commission because it
resulted in an increase in cost to the shipper and had not been fded in
compliance with the notice requirements of the Shipping Act 1916 After
the rejection of that amendment Respondents continued to assess and
collect the handling charges from Complainant Effective on April 1 1974
thehandlin charge was deleted from the tariff and aTerminal Receiving
Charge was instituted in its place
In the Itfitial Decision the Presiding Officer found that Complainant
delivered its containers to Respondents container yards and that the
interpretation of Respondents tariff proffered by Complainant was unfair
and unreasonable bordering on the absurd As a consequence the
Presiding Officer rejected thatinterpretatlon and dismissed the complaint
The Presiding Officer failed to decide whether or not Respondents
tariff was ambiguous and ignored an alternative interpretationofthe tariff
proffered by Complainant In so doing the Presiding Officer erred
Complainant made two arguments to the Presiding Officer Complainant
first argued that since on each shipment Complainant presented itselfat
the gate giving entrance to the carrier s terminal dock with the container
and there offered to deliver the container to the carrier Complainant
tendered its shipper packed container to the carrier atthat gate Complain
ant argued that at all times after its arrival at the gate to the carrier s
terminal dock Complainant was under the direction and control of the
carrier and that it was the carrier who caused the container to be moved
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