2011-29226. Publication of Inaccurate or Inactive Ocean Common Carrier Tariffs; Order to Show Cause

This proceeding is instituted pursuant to sections 8 and 11 of the Shipping Act of 1984 (1984 Act), 46 U.S.C. 40501, 41302, and the Commission's regulations governing tariff requirements of ocean common carriers, 46 CFR part 520. Section 8 of the 1984 Act, 46 U.S.C. 40501, provides that an ocean common carrier holding out to provide service in the United States foreign trades must keep open to public inspection in an automated tariff system tariffs showing all of the carrier's rates, charges, classifications, rules, and practices between all points or ports on its own route and on any through route that has been established. The Commission's rules require that prior to the commencement of common carrier service pursuant to a published tariff, each common carrier must notify the Commission's Bureau of Trade Analysis (BTA) of the location of its tariff(s) and the publisher, if any, used to maintain its tariffs, by electronically submitting Form FMC-1 via the Commission's Web site. A list of the locations of all carrier and conference tariffs submitted on Form FMC-1 is published on the Commission's Web site. The list is updated in real-time to permit any interested person to obtain tariff information and to allow the Commission to assess carrier compliance with statutory tariff publication requirements. Any changes in this information or the carrier's name, organization number, home office address, or telephone must be immediately transmitted to BTA. 46 CFR 520.3(d). The Commission's rules also require that carriers and conferences inform BTA, in writing, whenever a tariff is cancelled and the effective date of that cancellation. 46 CFR 520.7(b).

It has come to the attention of the Commission that the entities listed in Schedule A to this Order are currently identified as active vessel-operating common carriers (VOCCs) on the Commission's Web site, but do not appear to be engaged in providing ocean common carrier service in the foreign commerce of the United States. As of July 2010, three hundred fifteen (315) VOCCs were identified on the Commission's Web site as active carriers maintaining tariff publications at the Web site locations specified therein. BTA's Office of Service Contracts and Tariffs (OSCT) recently performed an audit of the carriers appearing in the FMC-1 database to determine the accuracy of the information provided to the Commission and verify their activity in the services held out in their tariffs. Relying on a variety of online resources^[1] as well as individual carrier Web sites, the audit identified the absence of any recent activity in the foreign waterborne commerce of the United States by those VOCCs identified in Schedule A. It appears that those carriers may have in fact ceased operations and failed to notify the Commission.

The Commission previously has found that maintenance of common carrier tariffs absent a present intention to furnish those services held out in such tariffs is contrary to the purposes of the Shipping Act and the Commission's tariff regulations. In Docket No. 98-31, Publication of Inactive or Inaccurate Ocean Common Carrier Tariffs, 28 SRR 832 (FMC, 1999), the Commission found that ten respondents had violated Section 8 of the Shipping Act by holding out to provide services as VOCCs and “by not operating vessels providing common carrier services in the U.S. foreign commerce in accordance with their respective VOCC tariffs.” Similar findings were entered by the Commission in Docket No. 80-77, Failure of Vessel Operating Common Carriers in the Foreign Commerce of the United States to Comply With the Certification Filing Requirements of Section 21(b) of the Shipping Act, 1916, 21 SRR 706, 707 (FMC, 1978), wherein the Commission held that:

[C]arriers not actively carrying cargo or clearly committed to commence carrying cargo between ports named in a tariff at the rates stated therein are not common carriers by water within the meaning of Section 18(b) and their tariffs in such unserved trades are subject to cancellation. See Publication of Inactive Tariffs, 20 FMC 433, (1978). The Commission will, therefore, cancel the tariffs of the Appendix B carriers as contrary to Section 18(b) and the Commission's tariff filing regulations (46 CFR part 536), but will take no further action against them.

In Publication of Inactive Tariffs by Independent Carriers, 17 SRR 471, 472 (FMC, 1977), the Commission concluded that tariff cancellations were a necessary step in serving important public purposes:

It is misleading to the public, potentially unfair to competing carriers, and an administrative burden upon our staff for “paper” tariffs to be kept on file, available for possible use it should suit the narrow purposes of the persons issuing them to quickly enter the trade, but otherwise describing a nonexistent service. We construe such a situation as contravening the implicit requirements of Shipping Act 18(b), subsections (1) through (3), which necessitates the prompt submission of accurate information concerning the services offered by a common carrier, including the suspension of all or any part of the operations described by its published tariffs. [Citations omitted].

See also Ghezzi Trucking Inc.—Cancellation of Inactive Tariffs, 11 SRR 598, 600 (FMC, 1970). In proposing this action, the Commission seeks also to assure that vessel-operating common carrier tariffs not be used as a means or device by which others may circumvent the bonding and licensing requirements applicable to Non-Vessel-Operating Common Carriers (NVOCCs).

Now therefore, it is ordered That pursuant to Section 11 of the Shipping Act of 1984, 46 U.S.C. 41302, the entities listed in Schedule A to this Order are directed to show cause why the Commission should not cancel the FMC-1 filings identifying the location of the carrier's published tariff(s) currently on file with the Commission, for failure to provide service as a vessel-operating common carrier in accordance with the routes and rates set forth therein;

It is further ordered That the entities listed in Schedule A to this Order are directed to show cause why the Commission should not order those entities to cease and desist all activities by which they may hold out to provide service as a common carrier within the meaning of Section 3 of the 1984 Act, 46 U.S.C. 40102, unless and until such time as they commence providing ocean common carrier service in the foreign commerce of the United States or have filed with the Commission proof of compliance with the tariff and financial responsibility requirements governing NVOCCs;

It is further ordered That this proceeding be limited to the submission of affidavits of fact and memoranda of law;

It is further ordered That any person having an interest and desiring to intervene in this proceeding shall file a petition for leave to intervene in accordance with Rule 72 of the Commission's Rules of Practice and Procedure, 46 CFR 502.72. Such petition shall be accompanied by the petitioner's memorandum of law and affidavit of fact, if any, and shall be filed no later than the day fixed below;

It is furthered ordered That the entities listed in Schedule A to this Order are named as Respondents in this proceeding. Affidavits of fact and memoranda of law shall be filed by Respondents and any intervenors in support of respondents no later than December 7, 2011;

It is further ordered That the Commission's Bureau of Enforcement (BOE) be made a party to this proceeding;

It is further ordered That reply affidavits and memoranda of law shall be filed by BOE and intervenors in support no later than December 22, 2011;

It is further ordered That:

(a) Should any party believe that an evidentiary hearing is required, that party must submit a request for such hearing together with a statement setting forth in detail the facts to be proved, the relevance of those facts to the issues in this proceeding, a description of the evidence which would be adduced, and why such evidence cannot be submitted by affidavit;

(b) Any request for evidentiary hearing shall be filed no later than December 22, 2011;

It is furthered ordered That notice of this Order to Show Cause be published in the Federal Register, and that a copy thereof be served upon each Respondent at its last known address;

It is further ordered That all documents submitted by any party of record in this proceeding shall be filed in accordance with Rule 2 of the Commission's Rules of Practice and procedure, 46 CFR 502.2, as well as being mailed directly to all parties of record;

Finally, it is ordered That pursuant to the terms of Rule 61 of the Commission's Rules of Practice and Procedure, 46 CFR 502.61, the final decision of the Commission in this proceeding shall be issued by March 6, 2012.

By the Commission.

Karen V. Gregory,

Secretary.

Schedule A—Listing of Ocean Common Carriers

Name and address	Tariff
Action Marine Group LLC, 7140 NW. Miami Court, Miami, FL 33150	020521
African Atlantic Lines, Inc., One International Place, Boston, MA 02110	016858
Allstate Shipping Line, LLC, 1156 Clifton Avenue, Irvington, NJ 07111	021135
American-Iraqi Shipping Line, Inc., 1900 Campus Commons Drive, Suite 340, Reston, VA 20191	019754
Arawak Line, Ltd., 50 Shirley Street, Nassau, Bahamas	016405
Asia Project Services Pte. Ltd., 70 Shenton Way, #14-01 Marina House, Singapore, Singapore 079118	019854
Atlantsskip HF, Vesturvor 29, 200 Kopavogur, Kopavogur, Iceland	016243
Autoterminal International Limited, P.O. Box 186, Tortola, Road Town, British Virgin Islands	020075
Azure Shipping Corporation S.A., Torre Universal, Ave Federico Boyd, Panama City, Panama	013897
BSLE Malta Limited, 57 St Christopher Street, Valetta, Malta	020287
Carib Services Ltd., 2377 Guy N Verger Blvd., Tampa, FL 33605	015585
Caribbean Star I Freight Lines, 5353 W. Tyson Avenue, #D, Tampa, FL 33611	011635
Caribbean Transport Line S.A., 700 SE. 32nd Court, Fort Lauderdale, FL 33183	013360
Ceylon Shipping Corporation Ltd., 498 Westgate Drive, #323, Edison, NJ 08820	016589
Cido Car Carrier Service Limited, 20th Floor, World-Wide House, No. 19 Des Voeux Road Central, Hong Kong, China	021100
Columbia Coastal Transport Incorporated, 100 Walnut Avenue, Clark, NJ 07066	013594
Gateway Maritime Transport Corporation, 5505 Mitchelldale, Suite 118, Houston, TX 77092	010789
GMP Holdings, Ltd., P.O. Box SS-5178, Nassau, Bahamas	018663
IMC Maritime Group, 1214 Stonehollow Drive, Kingwood, TX 77339	010613
Jackson Shipping, Inc., 5353 W. Tyson Ave., Bldg. C, Tampa, FL 33611	008866
Kookyang Shipping Co., Ltd., 2nd Floor, Donsung Building, #17-7, 4-KA, Namdaemun-Ro, Chung-Ku, Seoul, South Korea	020957
Last-Land Air & Sea Transport, 11757 Katy Freeway, Suite 1300, Houston, TX 77079	020008
LCI Shipholdings, Inc., 650 Poydras Street, Suite 170, New Orleans, LA 70130	007840
Lineas Agromar S.A., Calle 73 Via 40-350, Apartado Aereo 359 and 5313, Barranquilla, Columbia	001608
Lineas Maritimas Mundiales, S.A., Avenida Nunez de Caceres, Esp. Luis F. Tomen, Santo Domingo, Dominican Republic	018002
Moby Maritime Corporation, P.O. Box 466, Palm City, FL 34991	016284
MP Ferrymar, Inc., P.O. Box 16620, San Juan, PR 00908-6620	017333
MP Line de Mexico, Bosque de Duraznos #69-1105 Torre B, Bosques de las Lomas, Mexico City, Mexico	019817
Olympic International Ltd., Room 1217, World Trade Center Bldg., 2-4-1, Hamamatsucho, Minato-Ku, Tokyo 105, Japan	009647
Omnium Brasil Line, LLC, 2353 St. Johns Bluff Road, South Jacksonville, FL 32246	018968
Overseas Carrier, Inc., 3526 F.M. 528, Suite 104, Friendswood, TX 77546	015799
Overseas Transport Company of 2000, E.A. Creque Bldg., Main Street, Road Town, Tortola, British Virgin Islands	016891
Pan Ocean Shipping Company, Ltd., Dae Han Fire Insurance Building, 51-1 Namchang-Dong, Jungk-Ku, C.P.O. Box 3051, Seoul, South Korea	000989
Phoenix Caribbean Shipping Line, Inc., 2945 Richmond Terrance, Staten Island, NY 10303	017772
POL-Atlantic, LTD., 10 Lutego 24, Gydnia, Poland	014038
Rusflot Shipping Line N.V., 4 Dormasolweg, Willemstad, Curacao, Netherlands Antilles	011301
Sloman Neptun, Langenstrasse 44, Bremen, D-28195, Germany	019484
Star West Joint Service, Albion House, 20 Queen Elizabeth St., London, SE1 2LS	009407
Strong Maritime Corporation, 6th Fl, No. 87 Sung Jiang Road, Taipei, Taiwan 10486	020122
Texas American Shipping Corp., 16800 Greenspoint Drive, Suite S-105S, Houston, TX 77060	005781
Transportacion Maritima Grancolombiana S.A., Carrera 13 A No. 77A-63, SantaFe De Bogota, Bogota, Colombia	014492
Unimar Maritime Limited, 2, Pinat Can St; P.O.B. 8005, Haifa, Israel	014286
Venezuelan Container Line, C.A., Piso 16, Torre El Chorro, Esquina El Chorro, Caracas, Venezuela	007292
VOC Steel Services B.V., Westeriaan 10, 3016 CK Rotterdam, Netherlands	016823
Western Pacific Shipping Company, Malakal Commercial Port, Box 9005, Koror, Palau 96940	017300
Windward Maritime LLC, 300 Pigeon Point Rd., New Castle, DE 19720	019885

Footnotes

1.  Journal of Commerce (JOC) Sailings, PIERS, Sea-Web, and SERVCON.