[Federal Register Volume 61, Number 210 (Tuesday, October 29, 1996)]
[Notices]
[Pages 55802-55803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27624]


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FEDERAL MARITIME COMMISSION
[Docket No. 96-19]


Comm-Sino Ltd., Possible Violations of Sections 10(a)(1) and 
10(b)(1) of the Shipping Act of 1984; Order of Investigation and 
Hearing

    Comm-Sino Ltd. is a tariffed and bonded non-vessel-operating common 
carrier (``NVOCC'') located at Flat E, 21st Floor, Block 7, Phase V, 
Greenwood Court, Greenvale in Hong Kong. Comm-Sino holds itself out as 
an NVOCC pursuant to its filed tariff FMC No. 001, filed November 9, 
1995.
    Comm-Sino currently maintains an NVOCC bond, No. 5888, in the 
amount of $50,000 with the American Contractors Indemnity Company, 
located in Los Angeles, California. Pursuant to Rule 24 of Comm-Sino's 
tariff, American Contractors Indemnity Company also serves as the U.S. 
resident agent for purposes of receiving service of process on behalf 
of Comm-Sino Ltd.
    It appears that Comm-Sino, acting as shipper on certain shipments 
on which either Comm-Sino or its untariffed affiliate Goldline Ltd.\1\ 
was acting as NVOCC, misdescribed the commodity on at least 13 
shipments \2\ transported by an ocean common carrier between December 
2, 1995 and February 22, 1996. The shipments originated in Hong Kong 
and were destined for Miami and other locations in Florida. In each of 
these instances, Comm-Sino was listed as shipper on the ocean carrier's 
bill of lading, and destination agents in the U.S. for Comm-Sino or 
Goldline acted as the consignee or notify party. Each shipment reflects 
that a Comm-Sino or Goldline ``house'', or NVOCC, bill of lading was 
issued for tender by the ultimate consignee to Goldine's agent upon 
arrival of the cargo at destination, which correctly describes the 
commodity shipped.
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    \1\ Prior to May 25, 1995, Goldline Ltd. was a tariffed and 
Bonded NVOCC.
    \2\ These shipments are identified in Attachment A hereto.
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    In each of the thirteen (13) instances cited, the ocean common 
carrier rated the commodities in accordance with the inaccurate 
description furnished by Comm-Sino, while the NVOCC's agents accepted 
delivery of the cargo and made payment to the ocean common carrier on 
the basis of the lower rate attributable to the misdescribed commodity. 
Contemporaneous with its payment of the freight due, Goldline agents in 
the U.S. also would make entry of the goods through the U.S. Customs 
Service, in each case correctly describing the commodity based on 
actual contents shipped and paying the applicable duty, if any.
    While it appears that a Goldline house bill of lading may have been 
issued even in those instances where its tariffed NVOCC affiliate Comm-
Sino is identified as the shipper on the master bill of lading, in at 
least four instances \3\ occurring between March 1 and April 3, 1996, 
Comm-Sino appears both as shipper and as a carrier issuing its own 
(Comm-Sino) NVOCC bill of lading with respect to the commodity being 
shipped. The rates assessed and collected by Comm-Sino and its U.S. 
agents for these shipments, however, bear no relation to the rates set 
forth in Comm-Sino's ATFI tariff then on file with the Commission.\4\
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    \3\ Also shown in Attachment A.
    \4\ Since filing its tariff in the ATFI system in November 1995, 
Comm-Sino has maintained only a ``shell'' tariff consisting of three 
classes of Cargo N.O.S. rates. Comm-Sino does not publish ``per 
container'' rates, nor does it appear to charge those Cargo N.O.S. 
rates which it does publish, inasmuch as its rates are tariffed 
solely on a weight/measurement (W/M) ton basis.
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    Section 10(a)(1) of the Shipping Act of 1984 (``1984 Act''), 46 
U.S.C. app. Sec. 1709(a)(1), prohibits any person knowingly and 
willfully, directly or indirectly, by means of false billings, false 
classification, false weighing, false report of weight, false 
measurement, or by any other unjust or unfair device or means, to 
obtain or attempt to obtain ocean transportation for property at less 
than the rates or charges that would otherwise be applicable. Section 
10(b)(1), 46 U.S.C. app. section 1709(b)(1), prohibits a common carrier 
from charging, collecting or receiving greater, less or different 
compensation for the transportation of property than the rates and 
charges set forth in its tariff. Under section 13 of the 1984 Act, 46 
U.S.C. app. section 1712, a person is subject to a civil penalty of not 
more than $25,000 for each violation knowingly and willfully committed, 
and not more than $5,000 for other violations. Section 13 further 
provides that a common carrier's tariff may be suspended for violations 
of section 10(b)(1), for a period not to exceed one year.
    Now therefore, it is ordered, That pursuant to sections 10, 11, and 
13 of the 1984 Act, 46 U.S.C. app. sections 1709, 1710, and 1712, an 
investigation is instituted to determine:
    (1) Whether Comm-Sino Ltd., in its capacity as a shipper in 
relation to an ocean common carrier, violated section 10(a)(1) of the 
1984 Act by directly or indirectly obtaining transportation at less 
than the rates and charges otherwise applicable through the means of 
misdescription of the commodities actually shipped;
    (2) Whether Comm-Sino Ltd., in its capacity as a common carrier, 
violated section 10(b)(1) of the 1984 Act by charging, demanding, 
collecting or receiving less or different compensation for the 
transportation of property than the rates and charges shown in its 
NVOCC tariff;
    (3) Whether, in the event violations of sections 10(a)(1) and 
10(b)(1) of the 1984 Act are found, civil penalties should be assessed 
and, if so, the amount of such penalties;
    (4) Whether, in the event violations of sections 10(b)(1) of the 
1984 Act are found, the tariff of Comm-Sino Ltd. should be suspended; 
and
    (5) Whether, in the event violations are found, an appropriate 
cease and desist order should be issued.
    It is further ordered, That a public hearing be held in this 
proceeding and that this matter be assigned for hearing before an 
Administrative Law Judge of the Commission's Office of Administrative 
Law Judges at a date and place to be hereafter determined by the 
Administrative Law Judge in compliance with Rule 61 of the Commission's 
Rules of Practice and Procedure, 46 CFR 502.61. The hearing shall 
include oral testimony and cross-examination in the discretion of the 
Presiding Administrative Law Judge only after consideration has been 
given by the parties and the Presiding Administrative Law Judge to the 
use of alternative forms of dispute resolution, and upon a proper 
showing that there are genuine issues of material fact that cannot be 
resolved on the basis of sworn statements, affidavits, depositions, or 
other documents or that the nature of the matters in issue is such that 
an oral hearing and cross-examination are necessary for the development 
of an adequate record;
    It is further ordered, That Comm-Sino Ltd. is designated a 
Respondent in this proceeding;
    It is further ordered, That the Commission's Bureau of Enforcement 
is designated a party to this proceeding;
    It is further ordered, That notice of this Order be published in 
the Federal Register, and a copy be served on parties of record;

[[Page 55803]]

    It is further ordered, That other persons having an interest in 
participating in this proceeding may file petitions for leave to 
intervene in accordance with Rule 72 of the Commission's Rules of 
Practice and Procedure, 46 CFR 502.72;
    It is further ordered, That all further notices, orders, and/or 
decisions issued by or on behalf of the Commission in this proceeding, 
including notice of the time and place of hearing or prehearing 
conference, shall be served on parties of record;
    It is further ordered, That all documents submitted by any party of 
record in this proceeding shall be directed to the Secretary, Federal 
Maritime Commission, Washington, D.C. 20573, in accordance with Rule 
118 of the Commission's Rules of Practice and Procedure, 46 CFR 
502.118, and shall be served on parties of record; and
    It is further ordered, That in accordance with Rule 61 of the 
Commission's Rules of Practice and Procedure, the initial decision of 
the Administrative Law Judge shall be issued by October 27, 1997 and 
the final decision of the Commission shall be issued by February 20, 
1998.
Joseph C. Polking,
Secretary.

                                                     Attachment A--List of Comm-Sino Ltd. Shipments                                                     
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             Carrier                            Vessel                 Voy.          Discharge                  Bill of lading No.             Arrived  
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                                                 Shipments Involving Alleged Section 10(a)(1) Violations                                                
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SeaLand..........................  Marchen Maersk..................      602  Miami.................  SEAU955353956                              2-21-96
SeaLand..........................  Marchen Maersk..................      602  Miami.................  SEAU955353955                              2-21-96
SeaLand..........................  Mette Maersk....................      602  Miami.................  SEAU955350733                              1-31-96
SeaLand..........................  Maren Maersk....................      602  Miami.................  SEAU955344818                              1-24-96
SeaLand..........................  Maren Maersk....................      602  Miami.................  SEAU955344820                              1-24-96
SeaLand..........................  Madison Maersk..................      602  Miami.................  SEAU955342729                              1-11-96
SeaLand..........................  Madison Maersk..................      602  Miami.................  SEAU955342320                              1-11-96
SeaLand..........................  McKinney Maersk.................      602  Miami.................  SEAU955341550                               1-4-96
SeaLand..........................  Magleby Maersk..................      602  Miami.................  SEAU955334898                             12-26-95
SeaLand..........................  Magleby Maersk..................      602  Miami.................  SEAU955334897                             12-26-95
SeaLand..........................  Magleby Maersk..................      602  Miami.................  SEAU955334896                             12-26-95
SeaLand..........................  Magleby Maersk..................      602  Miami.................  SEAU955334895                             12-26-95
SeaLand..........................  Magleby Maersk..................      602  Miami.................  SEAU955340690                             12-26-95
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          House B/L No.                         Vessel                 Voy.          Discharge                    Master B/L No.               Arrived  
                                                 Shipments Involving Alleged Section 10(b)(1) Violations                                                
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GL603HEI072......................  SL Racer........................      001  L.A...................  SEAU955363709                              3-17-96
GL603HEI014......................  SL Racer........................      001  L.A...................  SEAU955363357                              3-17-96
GL603HEI130......................  SL Meteor.......................      002  Oakland...............  SEAU955364021                              3-25-96
GL603HEI093......................  Maj. Maersk.....................      604  Miami.................  SEAU955363878                               4-3-96
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[FR Doc. 96-27624 Filed 10-28-96; 8:45 am]
BILLING CODE 6730-01-M