The Port Authority reserves the right to apply any payment received against the oldest bills rendered against vessels, their Owners and/or Agents, or other users of the facilities.

Item 120, Wharfage Rules:

(A) Wharfage charges earned on import cargo placed on Port Facilities must be paid by vessel owners (operators) or their Agents and placing of such cargoes on Port Facilities shall be deemed an acceptance and acknowledgment of this responsibility. Vessel Owners (Operators) or their Agents shall furnish Port Authority manifests on import and outbound cargo, as the case may be, loaded to or from Port Facilities. See Exception 1.

EXCEPTION 1.- Where specific arrangements are made with owner or agent of import cargo guaranteeing payment of import wharfage charges, such charges will be collected direct from said owner or agent of the cargo.

(B) Wharfage charges earned on export, Coastwise, Intracoastal, or local cargo must be paid by owner or agent of cargo and placing of such cargo on Port Facilities shall be deemed an acceptance and acknowledgment of these responsibilities. See Exception 2.

EXCEPTION 2.-Where specific arrangements are made with owners or agents of export, Coastwise, Intracoastal, or local cargo guaranteeing payment to Port Authority of wharfage charges earned on export, Coastwise, Intracoastal or local cargo by a railroad, truck line, or other party, such charges will be collected from such railroad, truck line, or other party as the case may be.

Item 175, Consent to Terms of Tariff:

The use of the facilities under the jurisdiction of the Port Authority shall constitute a consent to the terms and conditions of this tariff, and evidences an agreement on the part of all vessels, their Owners and/or Agents and other users of such facilities to all such charges specified in this Tariff and to be governed by all rules and regulations herein contained.

3. Wharfage-A charge assessed against the cargo or vessel on all cargo passing or conveyed over. onto, or under wharves or between vessels (to or from barge, lighter, or water), when berthed at wharf or when moored in slip adjacent to wharf. Wharfage is solely the charge for use of wharf and does not include charges for any other service.

9. Usage The use of terminal facility by any rail carrier, lighter operator, trucker, shipper, or consignee, their agents, servants, and/or employees, when they perform their own car, lighter or truck loading or unloading, or the use of said facilities for any other gainful purpose for which a charge is not otherwise specified.

2. Portions of Rules and Regulations, as follows:

Item 15, Payment of Charges and Responsibility Therefor, Extensions of Credit; and Liens: Wharfage, wharf demurrage, car loading and unloading (when not absorbed by the ocean carriers) are due from the owner, shipper or consignee of the cargo, and shall be collected for and on behalf of the Navigation District by the vessel discharging or loading the cargo, or for which the cargo was received, through the vessel's owner, agent or other person duly authorized to do so, and such vessel and its owner and agent, jointly and severally, shall guarantee and be liable for the payment of such charges to the Navigation District whether or not collected by such vessel or its owner or agent. The use of the wharf or other terminal facility by the vessel or its owner or agent shall constitute acceptance and acknowledgment of this agency, guaranty and liability.

All bills rendered by the Navigation District for wharfage, dockage, wharf demurrage, shed and/or wharf use hire, charges for providing water and electricity, charges for equipment rental, charges for cleaning wharves and sheds, charges for terminal storage, special services, other services and claims or for any causes whatsoever, are due and payable in cash upon presentation,

⚫Complainant also introduced Exs. 47 and 51 containing provisions dealing with crane rental. See Corpus Christi letter of November 15, 1978.

unless arrangements for extension of credit are made. When credit arrangements have been made, any agents, owners, persons, firms or corporations receiving bills and failing to make full payment after presentation within the time permitted under the credit arrangements may be placed upon a cash basis.

The Navigation District does not recognize the numerous shippers or consignees and cannot attempt to collect or assist in collecting any port invoices or bills which may be passed on to shippers and consignees by the vessel, its owner and agent. Such bills must be paid regardless of when the vessel, its owner and agents, are reimbursed. Any errors in bills will be recitifed by the Navigation District.

The Navigation District reserves the right to estimate and collect in advance all charges which may accrue against vessels, their owners and agents, or against cargo loaded or discharged by such vessels, or from other users of the facilities of the Navigation District, whose credit has not been properly established with the Navigation District. Use of such facilities may be denied until such advance payments or deposits are made.

The Navigation District, at its option and subject to termination at its election, may at any time and from time to time extend credit to any user or other person conducting business with the Navigation District under the provisions of this tariff or amendments or reissues thereof by such user or other person establishing and maintaining financial responsibility acceptable to the Navigation District, or by posting and maintaining a single transaction or a period or an annual surety bond in form and content and with corporate surety acceptable to the Navigation District in amount equal to 125% of maximum liability on a single transaction or equal to an estimated period or estimated annual maximum liability. Further extension of credit may be suspended or terminated by the Navigation District subject to the establishment of added or extended credit acceptable to the Navigation District.

The Navigation District reserves the right to apply any payment received against the oldest bills rendered against vessels, their owners and agents, or other users of the facilities.

Presentation of bills to owners and agents of vessels or to stevedores is done as a matter of accommodation and convenience and shall not constitute a waiver of the liens for charges furnished a vessel for which the maritime law gives the lien.

Item 35, Responsibility for Loss or Damage:

Users of its facilities agree to indemnify and save harmless the Navigation District from and against all losses, claims, demands, and suits for damages, including death and personal injury, and including court costs and attorneys' fees, incident to or resulting from their operations on the property of the Navigation District.

Item 52, Application and Interpretation of Tariff:

The use of the waterways and facilities under jurisdiction of the Navigation District shall constitute a consent to the terms and conditions of this tariff, and evidences an agreement on the part of all vessels, their owners and agents, and other users of such waterways and facilities to pay all charges specified and be governed by all rules and regulations herein contained. The Navigation District shall be the sole judge as to the interpretation of this tariff.

F. BROWNSVILLE

1. Portions of Section One-General Rules and Regulations, as follows: Item 105, Consent to Terms:

Use of the public wharves and related facilities shall constitute consent to the terms and conditions of this tariff, including the payment of all applicable charges specified herein.

Item 110, Collection of Charges:

The District may, at its discretion, extend customary trade credit or require the posting of bond or prepayment of charges. Vessel charges, as set out hereinafter, shall constitute a lien against the vessel and/or her agents. Cargo charges, as set out hereinafter, shall constitute a lien against the merchandise or commodity and/or the custodian at the port thereof. Service charges shall be payable by the party requesting such service.

Item 111, Service Charge on Past Due Accounts:

On all invoices except lease rentals: A service charge will be assessed on all accounts over 30 days old, at a monthly rate of 12% on the first $500, and 1% on amounts over $500, with a minimum monthly charge of $0.50. Exception: Brownsville steamship agencies and stevedoring companies will be assessed on all accounts over 60 days old at the same rates as shown above. Item 115, Interpretation of Tariff:

The District further reserves the right to be the sole judge in the interpretation of this tariff or any supplements thereto.

G: ORANGE

1. Portions of Application, as follows:

Item 85, Responsibility for Wharfage:

On shipments inward and outward bound, handled over the wharves or piers, or on shipments handled direct between barges or vessels, and vessels that are berthed at wharves or piers, the shipper will be held responsible for wharfage charges, and will not be permitted to load any property from the wharves or piers, or from barges or vessels onto a vessel without prepayment of the wharfage charges, or until satisfactory provisions have been made for the payment.

2. Portions of Rules and Regulations, as follows:

Item 115, Interpretation of Tariff:

The Port District shall be the sole judge as to the interpretation of its Tariff rules and regulations. Item 120, Payment of Charges:

All bills rendered by the Port District for service, claims or for any causes whatsoever, are due and payable upon presentation, and any owners, agents, companies or persons receiving such bills and failing to make full payment within ten days after presentation shall be placed upon the delinquent list, conditions of which are hereinafter defined.

The Port District does not recognize the numerous shippers or consignees and cannot attempt to collect or assist in collecting storage and similar bills which may be passed on to shippers and consignees by the vessel, its owners and agents. Such bills are due when presented and must be paid regardless of when the vessel, its owners and agents, are reimbursed.

Bills must be paid when presented, and errors, if any, will be rectified by the Port District. Claims in excess of $10.00 will require specific approval of the Port District before refund is made. The Port District reserves the right to estimate and collect in advance all charges which may accrue against vessels, their owners and agents, or against cargo loaded or discharged by such vessels, or from other users of the facilities of the Port District whose credit has not been properly established with the Port District or who are habitually on the delinquent list. Use of facilities may be denied until such advance payments or deposits are made.

The Port District reserves the right to apply any payment received against the oldest bills rendered against vessels, their owners and agents, or other users of facilities.

Item 130, Wharfage:

(A) Wharfage charges must be paid by owner or agent of cargo and placing of said cargo on Port facilities shall be deemed an acceptance and acknowledgment of this responsibility. Item 195, Consent to terms of Tariff:

The use of the facilities under the jurisdiction of the Port District shall constitute a consent to the terms and conditions of this Tariff, and evidences and agreement on the part of all vessels, their owners and agents and other users of such facilities to pay all charges specified in this Tariff and be governed by all rules and regulations herein contained.

Contentions of Complainant and Respondents

1. Points in WGMA's Opening Brief

Point One- Each of the tariffs here complained of provides that use of the Port's facilities constitutes consent to be bound by all of the tariff provisions. Such language is a nullity, because lawful tariff provisions do not rest on consent but as a matter of law are binding upon all persons subject to them. Therefore use cannot lawfully be the equivalent of agreement. These provisions should therefore be ordered stricken and given no consideration in the determination of this complaint;

Point Two- Interpretation of a port's tariffs is a matter within the jurisdiction of the Federal Maritime Commission and the courts, and the statements in respondents' tariffs that they are to be interpreters of their tariffs are void as a matter of law as attempts to oust such jurisdiction;

Point Three-The ports tariff provisions, and billing practices, that make agents for vessels using port facilities personally liable for their principals' port charges are unlawful because the charges are obligations of third persons not agreed in writing to be borne by the agent and therefore unenforceable under the Texas Statute of Frauds, and contrary also to the Law of Principal and Agent, and violate sections 16 and 17 of the Shipping Act of 1916 (46 U.S.C.A. §§ 815, 816) in subjecting vessels' agents to an unreasonable disadvantage and to unjust and unreasonable regulations and practices;

Point Four-The ports' tariff provisions and billing practices which subject vessels' agents to responsibility for collecting, and personal liability for, wharfage and pier demurrage (which are liabilities of cargo) are unenforceable under the Texas Statute of Frauds, and they violate sections 16 and 17 of the Shipping Act of 1916 (46 U.S.C.A. §§815, 816) because they subject agents to unreasonable disadvantages and are unjust and unreasonable.

Point Five-Requiring renters of cranes and other heavy equipment from the ports ipso facto to become liable for the negligence of the operators of that equipment, who are employees of the Port, is violative of section 16 of the Shipping Act of 1916 (46 U.S.C.A. §815) in subjecting stevedores to undue and unreasonable disadvantages, and unjust and unreasonable and hence unlawful under section 17 of that Act; and

Point Six-The Galveston Wharves' tariff provision assessing strike penalty pier demurrage rates according to the status of cargo at the commencement of the strike is patently discrminatory and unlawful under sections 16 and 17 of the Shipping Act of 1916 (46 U.S.C.A. §§815, 816) because all of the strikebound cargoes are in an identical position during a strike and assessing different charges on cargoes in an identical position is plainly unjust and unreasonable.

2. Points in Respondents' Answering Brief

Counterpoint One-Complainant has wholly failed to sustain its burden of proof by reliable, probative evidence that respondents' tariffs, or their practices

thereunder, make or give any undue or unreasonable preference or advantage (section 16) or that the complained of tariffs and practices thereunder are unjust and unreasonable (section 17).

Reply Point One (germane to WGMA's Point One)-Tariff provisions that the use of the port facilities constitutes consent to be bound by the tariffs are merely a statement of the law, clearly informing users of the applicability of the tariffs and their responsibilities thereunder. Complainant claims that such tariff provisions are unlawful, but fails to offer any evidence that such language or port practices thereunder constitute an unreasonable preference or advantage or that such provision is unjust and unreasonable.

Reply Point Two (germane to WGMA's Point Two)-Provision in some of respondents' tariffs that the issuer of the tariff shall be the interpreter of their tariffs does not, cannot and is not intended to oust jurisdiction of the Federal Maritime Commission and the courts. The interpretation provision does serve a useful purpose in non-litigious inquiries and situations, particularly involving complex and technical interpretation of language terms common to the trade and relating to customs of the port.

Reply Point Three (germane to WGMA's Points Three and Four)-Ports' tariff provisions and billing practices assessing responsibility for charges upon vessels, their owners and agents and other users of the facilities are not only lawful but essential to insure collection of port charges and the continued economic viability of public ports. Such tariff provisions, rather than resulting in agents being held responsible for debts of others, impose a direct obligation upon the agents for collection of port charges.

Reply Point Four (germane to WCMA's Point Five)-Ports' tariff provisions concerning the responsibility of lessees of cranes and other such heavy equipment providing that any leased operator of the port shall be under the direction of the lessee and shall be considered as lessee's employee are reasonable requirements, uniform in the port industry and non-discriminatory.

Reply Point Five (germane to WGMA's Point Six)-The Galveston Wharves' tariff provision eliminating penalty portion of demurrage rate and making additional free time allowance during strike period is most reasonable, makes or gives no undue or unreasonable preference or advantage and is consistent with Commission rulings.

3. Points in WGMA's Reply Brief

First Reply Point-The tariff provisions here stating that use of port facilities "constitutes a consent to the terms and conditions of this tariff" is not a statement of the law: Use of a public utility's facilities constitutes consent only to be bound by lawful tariff provisions. The tariff language is unjust and unreasonable and therefore violative of Section 17 of the Shipping Act of 1916 and lawfully should be disregarded;

Second Reply Point- The provision in the tariffs that the port is to be the "sole judge" or "sole interpreter" of the tariff's meaning is unlawful, and hence unjust within Section 17 of the Shipping Act of 1916;