[Federal Register Volume 63, Number 246 (Wednesday, December 23, 1998)]
[Notices]
[Pages 71142-71143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33895]
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FEDERAL MARITIME COMMISSION
[Docket No. 98-31]
Publication of Inactive or Inaccurate 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. app. 1707 and 1710, and
the Commission's regulations governing the filing and publication of
tariffs of ocean common carriers, 46 CFR Part 514.
Section 8 of the 1984 Act, 46 U.S.C. app. 1707, provides that an
ocean common carrier holding out to provide service in the United
States foreign trades must file and maintain a tariff with the Federal
Maritime Commission showing all of the carrier's rates, charges and
practices. According to a review of records maintained by the
Commission's Bureau of Tariffs, Certification and Licensing, a tariff
has been filed with the Commission in the Automated Tariff Filing and
Information System (ATFI) in the name of the those ocean common
carriers identified in schedule A. Such tariffs purport to identify the
rates and port ranges within which these carriers hold out to furnish
vessel-operating common carrier services to the public.
It has come to the attention of the Commission that those ocean
common carriers identified in Schedule A do not appear to currently
operate any vessels in the trades in which they have published tariffs.
A review of respected publications which survey the maritime industry,
such as Lloyd's Register, Containerisation International and Fairplay,
fails to identify any vessels currently owned or operated by the above
listed carriers. Of similar import, access to commercial trade
databases such as PIERS likewise fails to furnish any indicia that
these carriers are currently furnishing vessel-operating services to
the public.\1\
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\1\ In some instances, parties listed in Schedule A are
identified as shippers or consignees of cargo physically transported
on the vessels of others. Such commercial operations may be
indicative of service as a non-vessel-operating common carrier
(NVOCC). Under section 23 of the 1984 Act, 46 USC app. 1721, each
NVOCC must secure and file with the Commission a bond covering its
financial responsibility for its transportation-related activities.
If the NVOCC is not domiciled in the United States, it must also
designate and maintain a person in the United States to serve as
legal agent for the receipt of judicial and administrative process.
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The Commission previously has found that the 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. 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, 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.
21 SRR 706, 707 (1978). See also, Publication of Inactive Tariffs By
Independent Carriers, 17 SRR 471 (1977) in which the Commission
concluded that tariff cancellations were necessary to 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 if it should
suit the narrow purposes of the person 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 section 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.]
17 SRR 471, at 472; Ghezzi Trucking Inc.--Cancellation of Inactive
Tariffs, 11 SRR 598, 600 (1970). The Commission also seeks to assure
that vessel-operating common carrier tariffs not be used as a means or
device by which to circumvent the bonding requirements applicable to
NVOCCs.
Now therefore, it is ordered that pursuant to section 11 of the
Shipping Act of 1984, the entities listed in Schedule A to this Order
are directed to show cause why the Commission should not cancel their
tariffs currently on file with the Commission, for failure to provide
service as vessel-operating common carriers in accordance with the
routes and rates set forth therein;
It is further ordered that this proceeding is limited to the
submission of facts 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 affidavits of
fact, if any, and shall be filed no later than the day fixed below;
It is further 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 January 19, 1999;
It is further ordered that the Commission's Bureau of Enforcement
be made a party to this proceeding;
It is further ordered that reply affidavits and memoranda of law
shall be filed by the Bureau of Enforcement and any intervenors in
opposition to Respondents no later than February 18, 1999;
It is further ordered that rebuttal affidavits and memoranda of law
shall be filed by Respondents and intervenors in support no later than
March 5, 1999;
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) Should any party believe that an oral argument is required,
that party must submit a request specifying the reasons therefore and
why argument by memorandum is inadequate to present the party's case;
and
(c) Any request for evidentiary hearing or oral argument shall be
filed no later than February 18, 1999;
[[Page 71143]]
It is further 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 118 of
the Commission's Rules of Practice and Procedure, 46 CFR 502.118, 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 April
19, 1999.
By the Commission.
Joseph C. Polking,
Secretary.
Schedule A--Listing of Ocean Common Carriers
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Name and address Tariff No.
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Cheong Fung Shipping Ltd., Room 701, Conic Investment
Building, 13 Hok Yuen Street, Hunghom, Kowloon,Hong
Kong, PRC.............................................. 011281-002
Golden Seals Shipping Inc, 4 Orchard Drive, Saddle
River, New Jersey 07458................................ 014889-001
Rich Sky Shipping Ltd., 1704-5 Alliance Building, 130-
136 Connaught Road, Central Hong Kong, PRC............. 011025-003
Chonggam International Ltd., 20th Floor, Bangkok Bank
Building, 18 Bonham Strand West, Sheung Wan, Hong Kong,
PRC.................................................... 013736-001
Shekou Intermodal Forwarders Ltd., 8th Floor, SCT
Building, Jetty No. 3, Shekou, Shenzhen, PRC........... 012822-001
Topitz International Ltd., Room B, 18th Floor, Yue On
Comm. Building, 385-387 Lockhart Road, Wanchai, Hong
Kong, PRC.............................................. 012084-001
Triple Shipping Ltd., 12/B, Shun Point Comm. Building, 5-
11 Thomson Road, Wanchai, Hong Kong, PRC............... 012446-001
Trinity Marine Services Ltd., Room 1212, Cheung Sha Wan
Plaza, Tower II, 833 Cheung Sha Wan Road, Kowloon, Hong
Kong, PRC.............................................. 011707-002
Long Trend Ltd., Room 2009-2010, 20th Floor, Fortress
Tower, 250 King's Road, North Point, Hong Kong, PRC.... 012029-002,
012029-003
SK Shipping Co. Ltd., 19th Floor, Namsan Green Building,
267, 5-Ga, Namdaemun-Ro, Chung-gu, Seoul, Republic of
Korea.................................................. 015155-002
Chinese Glory Express Ltd., Room 1618 Hollywood Plaza,
610 Nathan Road, Kowloon, Hong Kong, PRC............... 015165-001
China Travel Service (Cargo) Hong Kong Ltd., 11th Floor,
China Travel Building, 77 Queen's Road, Central, Hong
Kong, PRC.............................................. 010895-002
Swellchief Shipping Co. Ltd., 16th Floor, Bupa Centre,
141 Connaught Road, West, Hong Kong, PRC............... 013715-001
Intermodal Systems Ltd., Room 2302, 23rd Floor, 118
Connaught Road West, Hong Kong, PRC.................... 008006-002
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[FR Doc. 98-33895 Filed 12-22-98; 8:45 am]
BILLING CODE 6730-01-M
