Full Volume 19 - Federal Maritime Commission

DOW CHEMICAL INC v APL 537
to the container yard located wholly within the terminal dock Conse
quently argued Complainant tender was made to the carrier at the gate
giving entrance to the terminal dock
Complainant s second argument was that since for each shipment at
issue in this proceeding the carrier s container yard was located wholly
within its terminal dock Complainant s tender of its shipper packed
container to the carrier at the carrier s container yard was tender at the
carrier s terminal dock within the meaning of the tariff
Respondents argued that Complainant tendered its shipper packed
containers to Respondents at their container yards According to Re
spondents a tender is complete when the tenderor offers to deliver the
cargo relinquishes control over the cargo and has nothing further to do
to effectuate deliver ofthe cargo Under such a definition of tender
according to Respondents Complainant tendered its cargo at Respond
ents container yards because it was only at the container yards that the
Complainant offered to deliver and relinquished control over the cargo
Respondents rejected the second argument of Complainant by asserting
that Complainant was estopped from arguing that tender at the container
yard was tender at the dock within the meaning of the tariff because
Complainant has admitted that ifthe cargo was tendered at the container
yard the handling charge was properly assessed against Complainant
Respondents further argued that their tariff was not ambiguous because
the tariff provisions were clear on their face the terms used therein were
defined in the tariff and because a fair and reasonable construction must
be given to the tariff
Complainant tendered its shipper packed containers to Respondents at
their respective container yards At the common law a tender consists of
an unconditional offer to perform coupled with a manifested ability to
carry out the offer and production of the subject matter of the tender
Collins v Kingsberry Homes Corporation 243 F Supp 741 N D Ala
1963 aild 347 F 2d 351 5th Cir 1965 This Commission s decisions
regarding tender for delivery by an ocean common carrier are only
particular applications of the general common law rule and contain each
of the elements enunciated in Collins above Contrary to the argument of
Complainant the evidence of record in this proceeding does not support
a finding that Complainant offered to deliver its shipper packed containers
to each Respondent at the gates giving entrance to each Respondent s
terminal dock Complainant arrived at that gate was issued a gate pass
and was directed to the container yard That sequence of events does not
constitute an offer to deliver At the gate giving entrance to the container
yard of Respondent Complainant offered to Respondent the inland bill of
lading documenting the shipper packed container of Complainant That
act constituted an offer to deliver the container Complainant had the
container there at the gate and had there the ability to deliver the
container to Respondent Thus Complainant tendered its shipper packed
container to each Respondent at the gate giving entry to each Respond
19 EM C