03-4960. XM International, Inc v. Brilliant Logistics Group, Inc.; Notice of Filing of Complaint and Assignment

XM International, Inc. (“XM”) has filed a complaint against Brilliant Logistics Group, Inc. (“BLG”). XM states that it imports various commodities from the Far East, and that BLG is a licensed Ocean Transportation Intermediary (“OTI”) and importer.

XM states that it has a service contract with COSCO Container Lines Company Limited (“COSCO”). XM contends that BLG's representatives asked XM to ship BLG cargo under its contract by claiming that the cargo belonged to XM or an XM subsidiary authorized under the contract. XM claims that BLG offered to pay it for this arrangement. XM rejected this proposal. XM contends that, notwithstanding its rejection, BLG surreptitiously shipped under XM's contract rates by using XM's contract number, and misrepresenting that it was XM's cargo rather than its own (XM advises that this practice is referred to as “code-loading” in the industry). XM alleges that BLG violated section 10(a)(1) of the Shipping Act of 1984 (“Shipping Act”) by knowingly and willfully obtaining ocean transportation through an unfair device or means. XM states that it has been damaged because when COSCO became aware of these shipments, it increased the contract's rates and limited the space made available to XM, forcing it to ship on other shipping lines at higher rates. Also, XM contends it lost two customers due to the higher prices attributable to the increased freight charges.

XM asks that BLG be required to answer its charges, and that after hearing, an order be made commanding BLG to: Cease and desist from the alleged Shipping Act violations; establish and put in force such practices as the Commission determines to be lawful and reasonable; pay XM $1,490,000 in reparations for the unlawful conduct, with interest and attorney's fees or such other sum as the Commission determines to be proper as an award of reparations; and such further order or orders as the Commission determines to be proper.

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 February 24, 2004, and the final decision of the Commission shall be issued by June 23, 2004.

Bryant L. VanBrakle,

Secretary.