[Federal Register Volume 71, Number 235 (Thursday, December 7, 2006)]
[Notices]
[Pages 70965-70966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20757]


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FEDERAL MARITIME COMMISSION

[Docket No. 06-11]


R.O. White & Company and Ceres Marine Terminals Inc. V. Port of 
Miami Terminal Operating Company, Continental Stevedoring & Terminals, 
Inc. et al.; Notice of Filing of Complaint and Assignment

    Notice is given that a complaint has been filed with the Federal 
Maritime

[[Page 70966]]

Commission (``Commission'') by R.O. White & Company, Inc. and Ceres 
Marine Terminals, Inc. (``Complainants''), against the Port of Miami 
Terminal Operating Company, L.L.C. (``POMTOC''); Continental 
Stevedoring & Terminals, Inc.; Florida Stevedoring, Inc.; P&O Ports 
North America, Inc.; P&O Ports Florida, Inc.; Eller-Ito Stevedoring 
Company, L.L.C.; and Dante B. Fascell Port of Miami-Dade, aka Miami-
Dade County Seaport Department (``Respondents''). Complainants assert 
that Ceres Marine Terminals, Inc. performs stevedoring and/or marine 
terminal services at numerous ports in the United States and Canada, 
and R.O. White & Company is a wholly owned subsidiary of Ceres who 
holds a permit issued by Respondent Miami-Dade County Seaport 
Department (``The Port'') to perform stevedoring services at the Port. 
Complainants assert that all of the Respondents are marine terminal 
operators as defined in Section 3(14) of the Shipping Act of 1984 
(``The Act''), 46 U.S.C. 40102(14).
    Complainants contend that Respondents have violated the Shipping 
Act in several ways. First, they contend that Respondents, who are 
parties to FMC Agreement No. 224-200616, have violated sections 5(a), 
10(a)(2), and 10(a)(3) of the Act (46 U.S.C. 40302(a), 41102(b)(1) and 
(b)(2)) by: ``failing to file their actual agreements; operating 
pursuant to agreements that were required to be filed, but not filed; 
operating outside and/or contrary to the terms of their filed 
agreement; and collectively agreeing to refuse R.O. White permission to 
perform stevedoring services at POMTOC facilities.'' (Complaint at 11-
12). Second, Complainants assert that POMTOC and/or its members \1\ 
have violated sections 10(b)(10), 10(d)(1), 10(d)(3), and 10(d)(4) of 
the Act (46 U.S.C. 41104(10), 41102(c), 41106(3) and 41106(2)) by: 
Using POMTOC as a device to exclude competition for stevedoring 
services; precluding ocean common carriers from using R.O. White as 
their stevedore; refusing to allow R.O. White to use its Port-granted 
license to perform stevedoring services at POMTOC; requiring common 
carriers to use only POMTOC members for stevedoring services; and 
``denying R.O. White access to POMTOC while allowing access to other 
entities for the same or similar purposes.'' (Complaint at 12). Third, 
Complainants assert that the Port violated sections 10(b)(10), 
10(d)(1), 10(d)(3), and 10(d)(4) of the Act (46 U.S.C. 41104(10), 
41102(c), 41106(3) and 41106(2)) by: ``failing to prevent other 
Respondents from engaging in the unlawful conduct alleged in Counts I 
and II above; failing to ensure access by qualified stevedores to the 
only public, multi-user cargo terminal at the Port''; (Complaint at 13) 
and failing to re-evaluate the current process and competitive 
structure for providing stevedore services at the Port. Complainants 
pray that the Commission require Respondents to answer to the charges, 
order Respondents to cease and desist the aforesaid violations, 
establish and put in force such practices and policies as the 
Commission determines to be lawful and reasonable; require Respondents 
to pay reparations to Complainants for the unlawful conduct including 
interest and attorney's fees, and to make any further order or orders 
the Commission determines to be proper.
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    \1\ POMTOC is a marine terminal services provider that was 
formed by four of the Respondents.
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    This proceeding has been assigned to the Office of Administrative 
Law Judges. Hearing in this matter, if any is held, shall commence 
within the time limitations prescribed in 46 CFR 502.61, and only after 
consideration has been given by the parties and the presiding officer 
to the use of alternative forms of dispute resolution. The hearing 
shall include oral testimony and cross-examination in the discretion of 
the presiding officer only upon 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 matter in issue is such that an oral hearing and cross-
examination are necessary for the development of an adequate record. 
Pursuant to the further terms of 46 CFR 502.61, the initial decision of 
the presiding officer in this proceeding shall be issued by November 
30, 2007, and the final decision of the Commission shall be issued by 
March 10, 2008.

    By the Commission.
Bryant L. VanBrakle,
Secretary.
 [FR Doc. E6-20757 Filed 12-6-06; 8:45 am]
BILLING CODE 6730-01-P