[Federal Register Volume 63, Number 194 (Wednesday, October 7, 1998)]
[Notices]
[Pages 53917-53918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26815]
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FEDERAL MARITIME COMMISSION
[Docket No. 98-18]
Owens Refrigerated Freight Limited Possible Violations of Section
10(a)(1) of the Shipping Act of 1984; Order of Investigation and
Hearing
Owens Refrigerated Freight Limited (``Owens'') is a tariffed and
bonded non-vessel-operating common carrier (``NVOCC'') located at 100
Carlyle Street, P.O. Box 1044, Christ Church, New Zealand. Between
April 8, 1994 and February 11, 1997, Owens maintained an effective
tariff in the Commission's Automated Tariff Filing and Information
System (``ATFI'') under the name Cooltainer Services Limited. (ATFI
Tariff No. 012483-001) Since February 12, 1997, Owens has maintained
its current tariff under the name, Owens Refrigerated Freight Limited
(ATFI Tariff No. 014596-001). A NVOCC bond of $50,000 issued by
Washington International Insurance Company (Bond No. 56065) has covered
Owens' operations since April 8, 1994.1 Owens is the
refrigerated freight division of a publicly traded New Zealand
corporation, Owens Group Limited.2 According to its
Directors' Report published on the Internet, Mr. Russell J. Hunter is
the Group General Manager of Owens and, according to ATFI, he is the
contact person for Owens' tariff filing. Owens' resident agent in the
United States is NORAM Agencies Limited (``Noram''), 801 Second Ave.,
#419, Seattle, WA 98104.3
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\1\ Washington International Insurance Company is located at
Suite 500, 300 Park Blvd., Itasca, IL 60143-2625.
\2\ In addition to the refrigerated freight division, Owens
Group Limited has operating divisions for specialized transport,
ship agency, container services, international freight, etc.
\3\ According to ATFI, Noram has been Owens' resident agent in
the United States since July 28, 1995. Prior to that time, Owens
apparently did not designate a resident agent in its NVOCC tariff.
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Between March 15, 1994 and August 19, 1997, Owens is believed to
have entered into and participated in arrangements which allowed Owens
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. In March 1994, Owens
entered into an agreement with a common carrier, Ocean Management, Inc.
(``OMI''), in which Owens obtained certain ocean transportation rates
and other special transportation considerations from OMI for the
transportation of Owens' cargo between the United States and Australia.
The terms of this arrangement were not filed with the Commission. The
agreement between OMI and Owens appears to have continued until March
1, 1997, when Owens and OMI entered into a service contract which was
filed with the Commission and became effective on March 1, 1997.
In November 1996, Owens entered into another agreement with an
ocean common carrier, South Seas Steamship Co., Ltd., in which Owens
obtained certain ocean transportation rates and other special
transportation
[[Page 53918]]
considerations for the transportation of Owens' cargo between the
United States and New Zealand. The terms of this arrangement were not
filed with the Commission until August 20, 1997, when they were filed
in the tariff of South Seas Steamship Co., Ltd.
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.
Owens may have violated section 10(a)(1) of the 1984 Act by entering
into and utilizing off-tariff agreements for ocean transportation.
These arrangements appear to have given the NVOCC, Owens, ocean
transportation rates which were less than the applicable tariff rates
and may have provided Owens with various untariffed services and
benefits for at least three years and involving hundreds of shipments.
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. 4 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.
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\4\ The $25,000 and $5,000 penalties 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.
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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 Owens Refrigerated Freight Limited violated section
10(a)(1) of the 1984 Act between March 15, 1994 and August 19, 1997, 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 agreements 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 Owens
Refrigerated Freight 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 Owens Refrigerated Freight 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 Owens Refrigerated Freight 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 Owens Refrigerated Freight 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 October 1, 1999 and the
final decision of the Commission shall be issued by January 31, 2000.
By the Commission.
Joseph C. Polking,
Secretary.
[FR Doc. 98-26815 Filed 10-6-98; 8:45 am]
BILLING CODE 6730-01-P
