Tariffs and service contracts: Inactive or inaccurate ocean common carrier tariffs; publication,
[Federal Register: December 23, 1998 (Volume 63, Number 246)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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 filedwith 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\
\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.
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 filedno 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 filedby 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 filedby 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 filedby 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 filedno later than February 18, 1999;
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 filedin 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
Name and address
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., 20‹SUP›th Floor, Bangkok Bank Building, 18 Bonham Strand West, Sheung Wan, Hong Kong, PRC.................................................... 013736-001 Shekou Intermodal Forwarders Ltd., 8‹SUP›th Floor, SCT Building, Jetty No. 3, Shekou, Shenzhen, PRC........... 012822-001 Topitz International Ltd., Room B, 18‹SUP›th 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, 20‹SUP›th Floor, Fortress Tower, 250 King's Road, North Point, Hong Kong, PRC.... 012029-002, 012029-003 SK Shipping Co. Ltd., 19‹SUP›th 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., 11‹SUP›th Floor, China Travel Building, 77 Queen's Road, Central, Hong Kong, PRC.............................................. 010895-002 Swellchief Shipping Co. Ltd., 16‹SUP›th Floor, Bupa Centre, 141 Connaught Road, West, Hong Kong, PRC............... 013715-001 Intermodal Systems Ltd., Room 2302, 23‹SUP›rd Floor, 118 Connaught Road West, Hong Kong, PRC.................... 008006-002
[FR Doc. 98-33895Filed12-22-98; 8:45 am]
BILLING CODE 6730-01-M