03-3016. Hual As v. Puerto Rico Ports Authority; Notice of Filing of Complaint and Assignment

HUAL AS (“Complainant”) has filed a complaint against the Puerto Rico Ports Authority (“Respondent”). Complainant states that its roll-on/roll-off (“RO/RO”) vessels call at ports and terminals operated by Respondent in San Juan, Puerto Rico, and that it leases port area land from Respondent. Although some of the vehicles Complainant discharges at San Juan are destined for Puerto Rico, most are discharged for subsequent transshipment throughout the Caribbean.

Complainant states that Respondent's marine terminal operator tariff sets forth wharfage rates for varying categories of commodities. Complainant states that the tariff provides: (1) That wharfage is assessed only on the inbound movement of cargo transferred from one vessel to another at Respondent's facilities without change in form or content; and (2) a 15-day free-time period for non-containerized cargo paying only incoming wharfage originally manifested for transshipment to other ports without change in form or content. Complainant states that the tariff does not set forth wharfage rates for transshipped motor vehicles.

Complainant asserts that Respondent has charged it wharfage for transshipped automobiles at a $6.0629 “Motor Vehicle” rate rather than at the $1.0860 “Transshipment” rate, and that Respondent charges it wharfage on both inbound and outbound movements. Complainant states that, because there is no specific rate in the tariff for transshipped automobiles, and given the tariff's rates for transshipped cargoes, the tariff's structure and language is vague and ambiguous and Respondent's practice of assessing the higher automobile wharfage rate against transshipped automobiles in contrast to other transshipped cargo is an unreasonable practice violative of section 10(d)(1) of the Shipping Act of 1984 (“Shipping Act”), 46 U.S.C. app. § 1909(d)(1). Complainant further contends that assessing the higher automobile rate against transshipped cargoes when the tariff establishes lower rates governing transshipped cargo generally confers unreasonable preference and advantage upon those shippers paying the lower tariff rate and unduly and unreasonably prejudices and disadvantages Complainant in violation of section 10(d)(4) of the Shipping Act, 46 U.S.C. app. § 1909(d)(4). Finally, Complainant asserts that Respondent's assessment of wharfage for inbound and outbound automobile movements is inconsistent with the express terms of its tariff and that Respondent has thus engaged in unreasonable practices violative of section 10(d)(1) of the Shipping Act, 46 U.S.C. app. § 1909(d)(1).

Complainant asks the Commission to issue an order finding Respondent to have violated sections 10(d)(1) and 10(d)(4) of the Shipping Act and directing Respondent to cease and desists from continued violations of the Shipping Act, including assessment of and pursuance of claims against Complainant for non-payment of disputed wharfage charges. Complainant also seeks recovery of the amounts it paid that exceed the governing tariff rate for transshipped cargo, reparations in amounts to be proved at trial, interest and reimbursement of attorneys' fees.

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, such as those described in Subpart U of the Commission's Rules of Practice and Procedure, 46 CFR §§ 502.401-502.411.

The hearing, if any, 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 January 30, 2004, and the final decision of the Commission shall be issued by June 1, 2004.

Bryant L. VanBrakle,

Secretary.