[Federal Register Volume 63, Number 226 (Tuesday, November 24, 1998)]
[Notices]
[Pages 64964-64965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31281]
-----------------------------------------------------------------------
FEDERAL MARITIME COMMISSION
[Docket No. 98-20]
Refrigerated Container Carriers Pty. Limited; Possible Violations
of Section 10(a)(1) of the Shipping Act of 1984
Order of Investigation and Hearing
Refrigerated Container Carriers Pty. Limited (``RCC'') is a
tariffed and bonded non-vessel-operating common carrier (``NVOCC'')
located at Ste. 77, 89-97 Jones Street, Ultimo, NSW 2007, Sydney,
Australia. Since 1991, RCC has filed a NVOCC tariff with the Federal
Maritime Commission (``Commission''). RCC's current tariff in the
Commission's Automated Tariff Filing and Information System (``ATFI'')
has been effective since May 27, 1994. (ATFI Tariff No. 010847-002) RCC
also has a NVOCC bond of $50,000 issued by Washington International
Insurance Company (Bond No. 894-0093) which has been effective since
April 15, 1991. RCC's current resident agent for service of process in
the United States is The Roanoke Agency, Inc.\1\
---------------------------------------------------------------------------
\1\ Washington International Insurance Company with its apparent
affiliate, The Roanoke Agency, Inc., is located at Suite 500, 300
Park Blvd., Itasca, IL 60143-2625.
---------------------------------------------------------------------------
Between February 14, 1994 and September 11, 1996, RCC is believed
to have entered into and participated in an arrangement which allowed
RCC to obtain ocean transportation for property at less than the rates
or charges that would be otherwise applicable for shipments between
Australia/New Zealand and the United States. On February 14, 1994, RCC
entered into an agreement with a common carrier, Ocean Management, Inc.
(``OMI''), in which RCC obtained certain ocean transportation rates and
other special transportation considerations from OMI for the
transportation of RCC's cargo between the United States and Australia.
The terms of this arrangement were not filed with the Commission. The
agreement between OMI and RCC appears to have continued until the
arrangement apparently was terminated by OMI on September 11, 1996.
This arrangement appears to have given the NVOCC, RCC, ocean
transportation rates which were less than the applicable tariff rates
and may have provided RCC with various untariffed services and benefits
for more than two years and involving hundreds of shipments.
Section 10(a)(1) of the Shipping Act of 1984 (``1984 Act''), 46 USC
app. 1709(a)(1), prohibits any person from knowingly and willfully,
directly or indirectly, by means of false billing, false
classification, false weighing, false report of weight, false
measurement, or by any other unjust or unfair device or means,
obtaining or attempting to obtain ocean transportation for property at
less than the rates or charges that would otherwise be applicable. RCC
may have violated section 10(a)(1) of the 1984 Act by entering into and
utilizing an off-tariff arrangement to obtain ocean transportation for
RCC's property at less than the rates or charges that would otherwise
be applicable.
Under section 13 of the 1984 Act, 46 USC app. 1712, a person is
subject to a civil penalty of not more than $25,000 for each knowing
and willful violation of the 1984 Act, and not more than $5,000 for
each other type of violation.\2\
[[Page 64965]]
In addition, section 23 of the 1984 Act, 46 USC app. 1721, provides
that a common carrier's tariff may be suspended for violations of
section 10(a)(1) of the 1984 Act.
---------------------------------------------------------------------------
\2\ The $25,000 and $5,000 penalties, originally established in
the 1984 Act, have been increased to $27,500 and $5,500,
respectively, effective November 7, 1996. See Inflation Adjustment
of Civil Monetary Penalties, 27 SRR 809 (1996), and 46 CFR Part 506.
However, in accordance with 46 CFR 506.5, these increases apply only
to violations which occur after November 6, 1996. Since the alleged
violations appear to have occurred prior to November 6, 1996, these
increases do not apply.
---------------------------------------------------------------------------
Now therefore, it is ordered, That pursuant to sections 10, 11, 13,
14 and 23 of the 1984 Act, 46 USC app. 1709, 1710, 1712, 1713 and 1721,
an investigation is instituted to determine:
(1) whether Refrigerated Container Carriers Pty. Limited violated
section 10(a)(1) of the 1984 Act between February 14, 1994 and
September 11, 1996, by knowingly and willfully, directly or indirectly
obtaining or attempting to obtain ocean transportation at less than the
rates and charges otherwise applicable by means of an agreement whose
terms were not filed in the applicable tariff(s) or essential terms
publication(s) with the Commission;
(2) whether, in the event violations of section 10(a)(1) of the
1984 Act are found, civil penalties should be assessed against
Refrigerated Container Carriers Pty. Limited, and if so, the amount of
penalties to be assessed;
(3) whether, in the event violations of section 10(a)(1) of the
1984 Act are found, the tariff of Refrigerated Container Carriers Pty.
Limited should be suspended or canceled; and
(4) whether, in the event violations are found, an appropriate
cease and desist order should be issued against Refrigerated Container
Carriers Pty. Limited.
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 Refrigerated Container Carriers Pty.
Limited is designated as 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;
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, DC 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 November 18, 1999 and
the final decision of the Commission shall be issued by March 17, 2000.
By the Commission.
Joseph C. Polking,
Secretary.
[FR Doc. 98-31281 Filed 11-23-98; 8:45 am]
BILLING CODE 6730-01-M