[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
