[Federal Register Volume 63, Number 82 (Wednesday, April 29, 1998)] [Notices] [Pages 23466-23468] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-11359] ----------------------------------------------------------------------- FEDERAL MARITIME COMMISSION [Docket No. 98-06] Sea-Land Service Inc. Possible Violations of Sections 10(b)(1), 10(b)(4) and 19(d) of the Shipping Act of 1984; Order of Investigation and Hearing Sea-Land Service Inc. (``Sea-Land'') is a vessel-operating common carrier with offices at 6000 Carnegie Boulevard, Charlotte, North Carolina. Sea-Land provides regular liner services, inter alia, between the United States West Coast ports and points and ports and points in the Far East and currently operates as many as 21 containerships in its Transpacific services. Further shipping services are furnished by Sea- Land worldwide both directly and through participation in reciprocal [[Page 23467]] space charter agreements with Maersk, P&O Nedlloyd and others. As relevant herein, Sea-Land operates as a member of the Transpacific Westbound Rate Agreement (``TWRA''), and participates in the tarrifs and service contracts established by that conference. Through interviews and on-site examinations of shipping records maintained by World Pacific Container (USA) Inc. (``World Pacific'') and other non-vessel-operating common carriers (``NVOCCs'') providing services in the outbound trades from the U.S. West Coast to the Far East, it appears that World Pacific and competing NVOCCs in the Los Angeles area were actively engaged in equipment substitution malpractices on shipments transported by Sea-Land. Due in substantial part to the actions of its Los Angles sales representatives, Sea-Land has been substantially implicated in the subject malpractices with respect to cargoes destined for the Far East during 1997 and thereafter. Shipment records of World Pacific and other NVOCCs reflects the near-routine abuse of the TWRA equipment substitution rules as a means by which Sea-Land apparently furnishes an NVOCC with a larger container while still assessing the per-container rates normally applied only to a container of smaller capacity. The NVOCC then loads the container beyond the cubic capacity of the container initially requested, and obtains the financial benefits of paying the freight rate applicable to the smaller box. The above equipment substitution malpractices occur both in conjunction with, and independent of, shipments on which the commodity has been misdescribed. It is alleged that representatives of Sea-Land solicited cargo on the basis that the carrier would substitute 40-foot container equipment for 20-foot container equipment in order to secure the patronage of World Pacific and other NVOCCs as shipper clients of Sea-Land. Key to this rate malpractice is the understanding that the NVOCC would be required to misdeclare the cubit measurement of the shipment. In practice, World Pacific and other NVOCCs would meet this requirement by routinely declaring the cargo measurements at 25 cubic meters (``CBM''), equivalent to the maximum capacity utilization of a 20-foot container under TWRA rules. Cargo weights, however, were generally correctly declared and shown on the master bill of lading, thus indicating a significant variance between the loading characteristics of the cargo as declared, and the actual commodity and cubic measurements of the goods physically loaded within the substituted container. In addition, it appears that Sea-Land subsequently made payment of freight forwarder compensation on many of these same NVOCC shipments, with such compensation being paid to ITL Shipping Co. (``ITL Shipping'') as the forwarder on behalf of World Pacific. ITL Shipping did not then possess a valid ocean freight forwarder's license, its license having been revoked effective March 27, 1997.\1\ If further appears that ITL Shipping had not provided any certification to Sea- Land claiming entitlement to forwarder compensation upon World Pacific's shipments, nor had ITL Shipping in fact performed services of any kind with respect to securing the cargo or preparing the documentation thereon. Sea-Land allegedly issued forwarder compensation checks automatically to any party shown in the forwarder box of the master bill of lading, without regard to specific requirements for the submission to or receipt by Sea-Land of the forwarder's certification. It is further alleged that Sea-Land had reason to know that no forwarder compensation was payable in any event inasmuch as all details of booking the shipment or preparing or processing the ocean bill of lading were conducted by Sea-Land directly with the NVOCC shipper. In additional instances, it appears that forwarder compensation payments were made by Sea-Land to other forwarders in circumstances in which such forwarders did not perform the requisite forwarding services or were otherwise known to be related to the shipper NVOCC. --------------------------------------------------------------------------- \1\ Order of Revocation, Ocean Freight Forwarder License No. 3102, Kyung H. (Harry) Oh d/b/a ITL Shipping Company, served April 1, 1997. --------------------------------------------------------------------------- It is well-established law that a carrier is charged with a responsibility of reasonably diligent inquiry and exercise of care to ensure its compliance with the shipping statutes. Prince Line v. American Paper Exports Inc., 55 F.2d 1053 (2d Cir., 1932). In the case of the subject instances of equipment substitution, it is clear that Sea-Land agreed to furnish a larger container and to apply the equipment substitution rule to the freight rate advantage of the involved NVOCC, with no apparent regard for the NVOCC's subsequent misdeclaration and abuse of the equipment substitution rule. A carrier's persistent failure, moreover, to inform or attempt to inform itself of any false billings through those normal business resources available to the carrier such as weighing or measuring, inquiries of shippers or importers, reference to those ``marks and numbers'' shown on the bills of lading or other means, may reflect that carrier's attempt to keep itself in ignorance of the false billings concerned. Rates From Japan to United States, 2 USMC 426, 434 (1940); Rates From United States to Philippine Islands, 2 USMC 535, 542 (1941). Section 10(b)(1) of the 1984 Act, 46 U.S.C. app. Sec. 1709(b)(1), prohibits a common carrier from charging, collecting or receiving greater, less or different compensation for the transportation of property than the rates and charges set forth in its tariff. Section 10(b)(4) of the 1984 Act, 46 U.S.C. app. Sec. 1709(b)(4), prohibits any common carrier from allowing any person by means of false billings, false classification, false weighing, false report of weight, false measurement, or by any other unjust or unfair device or means, to obtain ocean transportation for property at less than the rates or charges that would otherwise be applicable. Section 19(d) of the 1984 Act, 46 U.S.C. app. Sec. 1718(d), provides that a carrier may compensate an ocean freight forwarder only when it has received certification that such forwarder possesses a valid license and that specified services relating to securing the shipment and preparing the documentation thereon have been performed by the forwarder. Under section 13 of the 1984 Act, 46 U.S.C. app. Sec. 1712, a person is subject to a civil penalty of not more than $25,000 for each violation knowingly and willfully committed, and not more than $5,000 for other violations.\2\ Section 13 further provides that a common carrier's tariffs may be suspended for violations of sections 10(b)(1) or 10(b)(4) for a period not to exceed one year. --------------------------------------------------------------------------- \2\ These penalties are increased 10 percent for any violations occurring after November 7, 1996. See, Inflation Adjustment of Civil Penalties, 61 Fed. Reg. 52704 (October 8, 1996). --------------------------------------------------------------------------- Now therefore, it is ordered, That pursuant to sections 10, 11, 13 and 19 of the 1984 Act, 46 U.S.C. app. Secs. 1709, 1710, 1712 and 1718, an investigation is instituted to determine: (1) Whether Sea-Land violated section 10(b)(1) of the 1984 Act by charging, demanding, collecting or receiving less or different compensation for the transportation of property than the rates and charges shown in its tariffs or service contracts; (2) Whether Sea-Land violated section 10(b)(4) of the 1984 Act by allowing certain NVOCCs to obtain transportation at less than the rates and charges otherwise applicable by an unjust or unfair device or means; (3) Whether Sea-Land violated section 19(d) of the 1984 Act by compensating [[Page 23468]] an ocean freight forwarder whose license was revoked, and without requiring the forwarder to provide the necessary certification or furnish those services entitling the forwarder to such compensation; (4) Whether, in the event violations of sections 10(b)(1), 10(b)(4) and 19(d) of the 1984 Act are found, civil penalties should be assessed against Sea-Land and, if so, the amount of penalties to be assessed; (5) Whether, in the event violations of sections 10(b)(1) and 10(b)(4) of the 1984 Act are found, the tariff(s) of Sea-Land should be suspended; (6) Whether, in the event violations are found, an appropriate cease and desist order should be issued. It is further ordered, That a public hearing be held in this proceeding and that this matter be assigned for hearing before an Administrative Law Judge of the Commission's Office of Administrative Law Judges at a date and place to be hereafter determined by the Administrative Law Judge in compliance with Rule 61 of the Commission's Rules of Practice and Procedure, 46 CFR 502.61. The hearing shall include oral testimony and cross-examination in the discretion of the Presiding Administrative Law Judge only after consideration has been given by the parties and the Presiding Administrative Law Judge to the use of alternative forms of dispute resolution, and upon a 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 matters in issue is such that an oral hearing and cross-examination are necessary for the development of an adequate record; It is further ordered, That Sea-Land Service Inc. is designated Respondent in this proceeding; It is further ordered, That the Commission's Bureau of Enforcement is designated a party to this proceeding; It is further ordered, That notice of this Order be published in the Federal Register, and a copy be served on parties of record; It is further ordered, That other persons having an interest in participating in this proceeding may file petitions for leave to intervene in accordance with Rule 72 of the Commission's Rules of Practice and Procedure, 46 CFR 502.72; It is further ordered, That all further notices, orders, and/or decisions issued by or on behalf of the Commission in this proceeding, including notice of the time and place of hearing or prehearing conference, shall be served on parties of record; It is further ordered, That all documents submitted by any party of record in this proceeding shall be directed to the Secretary, Federal Maritime Commission, Washington, D.C. 20573, in accordance with Rule 118 of the Commission's Rules of Practice and Procedure, 46 CFR 502.118, and shall be served on parties of record; and It is further ordered, That in accordance with Rule 61 of the Commission's Rules of Practice and Procedure, the initial decision of the Administrative Law Judge shall be issued by April 26, 1999 and the final decision of the Commission shall be issued by August 24, 1999. Ronald D. Murphy, Assistant Secretary. [FR Doc. 98-11359 Filed 4-28-98; 8:45 am] BILLING CODE 6730-01-M