[Federal Register: November 26, 2007 (Volume 72, Number 226)]
[Notices]               
[Page 65963]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no07-41]                         

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FEDERAL MARITIME COMMISSION

[Docket No. 07-10]

 
Kawasaki Kisen Kaisha, Ltd. v. Fashion Accessories Shippers 
Association, Inc.; Gemini Shippers Association, Inc.; Sara Mayes; and 
Harold Sachs; Notice of Filing of Complaint and Assignment

    Notice is given that a complaint has been filed with the Federal 
Maritime Commission (``Commission'') by Kawasaki Kisen Kaisha, Ltd. 
(``K'' Line). Complainant asserts that it is a corporation formed and 
existing under the laws of the country of Japan and is operating as an 
ocean common carrier. Complainant asserts that Respondents, Fashion 
Accessories Shippers Association, Inc. (``FASA''), and Gemini Shippers 
Association, Inc. (``Gemini'') are Delaware non-profit corporations, 
that Sara Mayes is President of FASA, and that Harold Sachs is 
Executive Director of FASA. Complaint asserts that all Respondents are 
located at 350 Fifth Avenue, Suite 2030, New York, New York 10118.
    Complainant contends that FASA purports to act as a shippers 
association and enters into service contracts with ocean common 
carriers as ``Gemini Shippers Association.'' Complainant ``K'' Line 
also contends that it has entered into a number of service contracts 
with Fashion Accessories Shippers Association and/or Gemini Shippers 
Association since April 2001. Complainant alleges that it makes 
``royalty payments'' by check to Gemini Shippers Association pursuant 
to the terms of such service contracts. Complainant maintains that 
under the service contract ``royalty clause,'' Complainant was required 
to collect from FASA/Gemini member shippers and forward to Respondent 
Gemini, the ``Gemini Association dues'' which royalty ranged from 
$40.00 to $70.00 per container. Complainant ``K'' Line also states that 
it was billed for such royalties on the billhead of ``Gemini Shippers 
Group.'' Complainant further states that FASA instituted a New York 
arbitration claiming royalties it would have received had ``K'' Line 
not directly entered into a service contract with a ``so-called member' 
and a `former member' during the 2006-2007 contract term.''
    Complainant contends that Respondents are in violation of the 
Shipping Act of 1984 (``the Shipping Act'') by: (1) Holding themselves 
out as a shippers' association when it neither organized as a shippers' 
association nor functions as one as defined by the Shipping Act; (2) 
requiring that ``royalty payments'' be made by Complainant to 
Respondents for the ``privilege of carrying cargoes under the contract 
rates,'' and through such ``royalty payments,'' engaging in a scheme to 
obtain transportation at less than the otherwise applicable rates; and 
(3) implementing and enforcing an ``exclusive dealing clause'' that 
locks shippers into FASA contracts and controls rate levels. 
Complainant asserts that the activities described above are in 
violation of the 46 U.S.C. 40102(20), (22) and (23), 41102(a), 
41104(10), and the Commission's regulations at 46 CFR 530.8(c).
    Complainant requests that the Commission: (1) ``Order Respondents 
to cease and desist from representing the FASA/Gemini operation, as it 
presently exits, as a shippers' association''; (2) find the exclusive 
dealing clause and the royalty clause to be in violation of the 
Shipping Act and to issue a cease and desist order against Respondents' 
future use of such clauses; (3) find that FASA/Gemini's New York 
arbitration or any other means for seeking to enforce the unlawful 
exclusive dealing and royalty clauses is unlawful; and issue a cease 
and desist order against any Respondent pursuing the New York 
arbitration against ``K'' Line or re-instituting any similar 
arbitration for enforcement of either of the clauses.
    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. The hearing 
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 November 
18, 2008, and the final decision of the Commission shall be issued by 
March 18, 2009.

Bryant L. VanBrakle,
Secretary.
 [FR Doc. E7-22972 Filed 11-23-07; 8:45 am]

BILLING CODE 6730-01-P