Full Volume 19 - Federal Maritime Commission

CATERPILLAR TRACTOR CO v U S LINES 675
equipment not limited to tractors The description
reads earth
moving machinery and material handling machinery and tools 3
As indicated above the shipper s agent prepared the bill of lading and
specified the rate to be assessed As the containers were loaded by the
shipper and the bill of lading prepared by the shipper s agent it is
reasonable to presume in the absence ofproof to the contrary that the
agent knew the contents ofthe two containers and properly classified and
rated the cargo While we have held that the description on the bill of
lading is not the single controlling factor in claims alleging misclassification
of cargo the evidence offered by OFC failed to rebut the pre sumption
that the agent knew the contents ofthe containers when preparing the bill
of lading and rating to cargo
Complainant has also suggested that its claim should be treated as being
established inasmuch as respondent did not reply to the complaint The
Settlement Officer was not persuaded by this argument He stated that
although statements may be uncontroverted they are not thereby taken as
proved He also expressed certain doubts about aprevious Commission
decision in Ocean Freight Consultants v Royal Netherlands Steamship
Company Docket 72 39 Report on Reconsideration served January 30
1975 which he apparently feared could be read as unqualifiedly standing
for the proposition that unrefuted allegations are to be accepted as fact
We agree with the Settlement Officer that failure of respondent to
answer does not preclude examination of the proof by the Commission
As indicated by the Settlement Officer Rule 5 of the Commission s Rules
of Practice provides
at 46 CPR 502 64
In the event that respondent should fail to file and serve the answerwithin the time
provided the Commission may enter such order as may be just or may in any case
require such proof as to the matters alleged in the complaint as it may deem proper 4
Our previous decision in Ocean Freight Consultants is not in onsistent
with this because in the former case the complainant was found to have
sustained the burden of proof not only because relevant facts were
unrefuted but because additional evidence supported those fal ts to the
Commission s satisfaction The former case is also distinguishable because
it did not involve failure to file an answer but involved failure of
respondent to deny certain of complainant s allegations in its answer
They provision of the Rules of Practice applicable to failure to deny is
more emphatic as to what is deemed to be established The rule reads
Recitals of material arid relevant facts in a complaint
unless specifically denied
in the answer thereto shall be admitted as true but if request is seasonably made a
competent witness shall be made available for crossexamination on such evidence
Accordingly the Settlement Officer s concern about reconciling the
3
Moody s Industrial Manual Jists among Catepillar s prime products pipe layers tool bars hydraulic controls
cable controls industrial and marine engines hydraulic excavators compactors and inertiawelders
4
See our report in Docket 75 15 served January 5 1977 as arecent example wherethe Commission examined the
proofbut further supported its conclusions by reference to Rule 5
19 F M C