FEDERAL MARITIME COMMISSION DOCKET NO. 82-49 REEFER EXPRESS LINES PTY. LTD. V. UITERWYK COLD STORAGE CORPORATION, ELLER & COMPANY, Warehouse checking charge at the Port of Tampa found not shown to be an arbitrary charge for no physical service, and the said charge found not shown to be unjust and unreasonable; practice of terminal operators, Uiterwyk and Eller, of incorporating by reference in their tariffs, the warehouse checking charge of the Port of Tampa found not shown to be unjust and unreasonable; and Port of Tampa's tariff found not shown to be an agreement among terminal operators not approved by the Commission. Complaint dismissed. Joseph A. Klausner, Josiah K. Adams, and Leslie S. Gallmeyer for complainant, Reefer Express Lines Pty. Ltd. David F. Pope for respondent, Eller & Company, Inc. H.E. Welch for respondents, Tampa Port Authority. INITIAL DECISION OF CHARLES E. MORGAN, ADMINISTRATIVE Partially Adopted July 27, 1984 By complaint, filed October 22, 1982, and served October 26, 1982, the complainant, Reefer Express Lines Pty. Ltd. (Reefer Express) alleges that the charges for "warehouse checking" at the Port of Tampa, Florida (the Port), made by Uiterwyk Cold Storage Corporation (Uiterwyk) and by Uiterwyk's successor, Eller & Company, Inc. (Eller), both Uiterwyk and Eller having been or being in the business of furnishing cold storage terminal facilities at the Port, were arbitrary charges for no physical service; and that exacting charges for warehouse checking is an unreasonable and unjust practice in violation of section 17 of the Shipping Act of 1916, as amended (the Act). The complainant also alleges that the warehouse checking charge is published in the Port's tariff, that the Port acted as an agent for the terminal operators in the Port, and that the failure of Uiterwyk and Eller to incorporate the charge for warehouse checking in their own tariffs, while instead making cross-reference of the Port's tariff, is an unreasonable and unjust practice in violation of section 17 of the Act. This decision will become the decision of the Commission in the absence of review thereof by the Commission (Rule 227, Rules of Practice and Procedure, 46 CFR 502.227). ELLER & CO., INC. & TAMPA PORT AUTHORITY The complainant further alleges that the Port's tariff represented an agreement among terminal operators not approved by the Federal Maritime Commission in violation of section 15 of the Act. The complainant also alleged in its complaint that the Port of Tampa's tariff was not filed with the Commission, but at the prehearing conference complainant admitted that it was in error in this respect, and that the Port had duly filed its tariff. The complainant has not paid the charges on certain past shipments here in issue. Thus, the complainant asks the Commission to disapprove the charge for warehouse checking; and to direct all respondents to strike it from their tariffs and to cease and desist from collecting or attempting to collect such charge. Effective October 1, 1982, item 285 of the Port's tariff changed the definition of warehouse checking, in part, by the addition of the following provision: Warehouse Checking will be performed on all inbound and out- The complainant has requested that warehouse checking be not performed on its present and future shipments. Thus, only the warehouse checking charges on past shipments remain in issue. Prior to the above change, effective October 1, 1982, of the Port's definition of warehouse checking, the Port Authority held a public hearing, at which counsel for the complainant agreed that complainant Reefer Express would accept responsibility for any cargo loss when the service of warehouse checking was requested by Reefer Express not to be performed. The original definition in the Port's tariffs of warehouse checking was: The employment of warehouse clerks and checkers, as differen- Effective October 1, 1982, the definition of warehouse checking was changed to provide that, instead of being assessed against the carrying vessel, it is assessed against the party responsible for stevedoring charges based on inbound or outbound cargo manifest weight. Also, as seen above, the 1982 definition provided that when the party responsible for payment of warehouse checking specifically requests in writing that warehouse checking be not performed then the terminal operators will not be responsible for any overages and/or shortages. Generally, the ocean carrier is the party responsible for stevedoring charges. WAREHOUSE CHECKING Warehouse checking is a service performed by terminal personnel (of Uiterwyk or Eller), using tally clerks and checkers to: (1) Tally, by count, lot, supplier, and/or mark the product/cargo into the cold storage terminal facility and record where, in the cold storage terminal facility, the various lots, marks, or shipper's product/cargo is stored; (2) Tally and withdraw from the cold storage terminal facility, by count, lot, mark, and/or shipper the product/cargo to the vessel's side, or the overland carrier's equipment, to insure correct count and delivery by lot, mark, or shipper of the overall product/cargo furnished to the vessel or overland carrier; and (3) Act as the interface of product/cargo information, both as to count and lot/mark/shipper information between the cold storage terminal facility and the contract stevedore for the vessel so that the vessel can be loaded and the product/cargo delivered to the vessel's side for loading in an efficient and reasonable manner. While warehouse checking may relate to either export or import cargo, the refrigerated cargo in issue herein, and the warehouse checking charges. sought to be collected, relate only to export cargoes shipped on the vessels of the complainant, Reefer Express. Such export cargo arrives by train or truck at the overland loading and unloading dock of the Uiterwyk-Eller cold storage terminal on its landward side. The terminal on its water side is alongside a waterway which runs north and south. A clerk (terminal employee) appears and checks the cargo to be delivered by the overland carrier to the terminal. The clerk issues a dock receipt, which states what the cargo is, for whom intended, by what shipper, and the total number of cartons and weights. The dock receipt is prepared by an office employee of the terminal. The truck driver or trainman presents the dock receipt to the terminal's clerk who in turn designates the place for unloading the truck or rail car. Two employees are assigned by the terminal to receive the cargo from the overland carrier. They are a checker and a fork lift operator. The fork lift operator moves the cargo out of the overland carrier to an area of the terminal adjacent to, but outside of, the freezer or cold storage area of the terminal, on the premises and the property of the terminal. ELLER & CO., INC. & TAMPA PORT AUTHORITY The checker ascertains that the cargo unloaded from the overland carrier is as stated on the dock receipt. The cargo is not necessarily weighed because the weight of a carton is stamped usually on the box or on the dock receipt, or on the delivery bill of lading from the rail carrier or truck. Next, a second movement of the cargo occurs. Another fork lift driver transports the cargo from the initial discharge area into the freezer-cold storage area of the terminal. At times the same fork lift operator performs both movements, but they are separate movements and the cargo does not move directly from the overland carrier into the freezer-cold storage area. The cargo always is put down first, and by a second move, taken into the freezer-cold storage area of the terminal. The cargo remains in the freezer-cold storage area until an ocean vessel arrives; and then the cargo is taken out of the freezer-cold storage area through the back doors (water-side doors) of the terminal, and the cargo is put on the wharf for acceptance by the stevedore assigned to deliver the cargo to the vessel. The stevedore employs longshoremen who move the cargo under the ship's hook or loading gear for eventual loading aboard the vessel. The complainant's witness Brigante admitted on cross-examination that he had seen certain checking performed by warehouse (Uiterwyk-Eller terminal) personnel on this export cargo. Such personnel checked "as far as this lot goes to the ship, this one doesn't." A lot is a commercial unit or block of cargo assigned to a specific consignee or shipper. Reefer Express issues directions to the terminal as to how the cargo is to be delivered to a Reefer Express ship. These directions may include segregation of the cargo by port of discharge, by shipper or consignee, by quantity of cargo, and by weight. It is normal to have several shipments for a given discharge port, and three or four consignees for a particular discharge port, with each consignee having separate lots or blocks of cargo to be delivered. The ocean carrier, such as Reefer Express, generally gives a telex or telephone notice to the terminal of the impending arrival of its ship. The terminal also is advised about the number of longshoremen's gangs which will be on hand, and how much cargo from the terminal should be brought out. A terminal (warehouse) employee prepares a loading list of the ship's cargo, or a summary of the dock receipts for all of the cargo designated to be exported on a particular ship. This loading list shows the quantity of cargo, nature-be it frozen, chilled or otherwise, weights, shippers and consignees, as well as the breakdown by discharge ports. Quite often while the vessel is "working" or being loaded, other cargo is received at the terminal, or the terminal may have other cargo not originally destined for this particular ship, which other cargo now has been released to go on this ship. In other words, the loading list may be updated from time to time, or it is supplemented by other cargo and events which occur while the vessel is being loaded. This updating may be done verbally or by the vessel's port captain or an other designated agent of the vessel. In general the warehouse checking, including the preparation of a load list, is a procedure designed to provide for a smooth flow of cargo to the ship from the terminal on export movements. When the stevedore gets the cargo from the terminal, the stevedore makes its own check as to the consist of the cargo. Also the ship's mate makes a check on receiving the cargo from the stevedore. Delivery to the stevedore is considered by the terminal as delivery to the vessel, since the stevedore is employed by the vessel. The terminal for its protection receives a mate's receipt or other receipt that it has delivered the cargo to the vessel. The complainant stresses that the warehouse checking done by the terminal's personnel is not a service to the ship inasmuch as the ship owner performs its own tally and count of cargoes received on its ship. Also, the complainant believes that warehouse checking is for the protection of the warehouseman and the shipper. This reasoning overlooks that warehouse checking also benefits the ship, insofar as the terminal arranges to check out and deliver the cargoes by ports of discharge, by consignees, quantities, lots, and weights; that without warehouse checking there could be either overages or shortages in delivery of cargoes to the ship; and more importantly that warehouse checking enables a smooth flow of cargo from the terminal to the ship. As seen, warehouse checking is an actual physical service of some benefit to the ship (ocean carrier, such as Reefer Express). Under Reefer Express' tariff, the complainant argues that the charges to the shippers and consignees provide that the the cargo is booked "free alongside ship" (f.a.s.), and therefore the cargo has to be put alongside the ship by the shipper. The complainant also argues that the shipper pays the terminal to take the cargo from the overland carrier, place it into freezer or cold storage, remove it from same, and place it alongside the ship. This argument conveniently overlooks that the warehouse checking performed by the terminal covers other services of benefit to the ship, such as listing the cargo by lot and by various shippers and consignees, for segregated delivery by separate consignees, ports of discharge, and alongside different hatches of the vessel. It is concluded and found that warehouse checking, at least in part, benefits the ocean carrier, as well as benefits the shipper, consignee, and the terminal. It is further concluded and found that warehouse checking is an actual physical service performed by terminal (warehouse) personnel. Therefore, it is concluded and found that the practice of levying a charge for warehouse checking on the ocean carrying vessel, or on the party |