Full Volume 19 - Federal Maritime Commission

646 FEDERAL MARITIME COMMISSION
the complaint did not restrict the complainant s right to resubmit its claim
correcting the jurisdictional grounds defect found in Docket No 7639
The instant docket obviously is intended to accomplish this purpose
The claim at issue involves a simple case of improper rate application
wherein cargo described on the bill of lading as Truck Engines Diesel
Engines Automotive for replacement was assessed adifferent rate than
that which is specified in the tariff as being applicable at the time In lieu
of a rate of 119 50 per cubic feet which rate was assessed on the three
shipments identified in the claim the carrier s applicable United States
South and East AfricaConference Southbound Freight Tariff No 2 FMC
No 3 provided in Item 255 Second Revised Page 152 Correction 106 a
which rate should
base rate of 70 25 per 40 cubic foot or 2 240 pounds
have applied on the shipments in question
Ordinarily this observation would warrant the issuance of an order
directing that the overcharge of 1 633 66 be refunded to the complainant
In this instance however such action would be redundant for the reason
that acheck in full settlement ofthe overcharge has in the meantime been
paid by the carrier as confirmed in letter of November 12 1976 submitted
by attorney for the complainant
While in ordinary circumstances the carrier could be admonished for
taking unilateral action in a proceeding before the Commission and
thereby prejudging the decision which might be rendered Ifmd that from
aregulatory standpoint the conference tariff did not prohibit an informal
settlement of the rate issue and there was therefore no legal necessity to
bring the matter before this agency for formal resolution This position is
based upon
the fact that an informal settlement of the claim was not time
barred by Rule 16 of the tariff as the carrier apparently believed A
careful review of the Rule reveals that it does not extend to errors
of a rate which is the issue in this
involving the mere misapplication
Docket It is noted that the rule could be phrased in a clearer mannerby
appropriately inserting the words except as otherwise provided in the
first paragraph in order to alert a tariff user of the pertinent exception
which appears in part 3 of the rule
Following is a statement of the rule as it appears on pages 110 and III
of the tariff
OVERCHARGES
Claims for adjustment of freight charges if based on alleged
errors in
description weight andor measurement will not be considered unless
involved leaves the
presented to the carrier in writing before shipment
custody of the carrier Any expenses incurred by the carrier in connection
with its investigation of the claim shall be borne by the party responsible
for the error or if no error be found by the claimant All other claims for
adjustment of freight charges must be presented to the carrier in writing
19 F M C