Full Volume 19 - Federal Maritime Commission

456
FEDERAL MARITIME COMMISSION
vessel or other conditions beyond Tote s control to make a preferential
call at Anchorage during a given week Only in the event that Tote is
unable to make a preferential vessel call during a particular week because
of circumstances beyond its control will it be permitted to double its
preferential calls in a subsequent week As an alternative to Tote s
doubling its preferential calls because of unforeseen circumstances de
scribed above Tote may employ a replacement vessel to make a
scheduled preferential call without providing the IS days notice Further
Tote will provide Anchorage with prompt notice of its inability to make a
preferential call as scheduled and its intent to either 1 double its call in
a subsequent week or 2 utilize a replacement vessel to make the weekly
preferential call
E Unflled Section 15 Agreements
Hearing Counsel excepts to the Presiding Officer s determination that
certain leases to back up areas at Anchorage are not section 15 agree
ments The leases in question were never introduced into the hearings
Hearing Counsel s attempt to enter the leases as late filed exhibits was
rejected by the Presiding Officer On brief Hearing Counsel once again
raised the question ofthe leases and their subjectivity to section 15 In his
Initial Decision the Presiding Officer noted that the Commission Order
instituting this proceeding did not include as an issue the matter of the
back up leases and that a serious question now arises whether the
introduction ofthis issue at the briefing stage by Hearing Counsel violates
the notice provisions for due process
However to avoid a subsequent remand on this issue the Presiding
Officer considered the leases to the back up areas and found them not
subject to section 15 This determination was based on afinding that the
leases appeared to be routine real estate transactions involving nothing
more than a landlord tenant relationship Citing the Commission s inter
pretative rulings 46 C P R 530 5 he concluded that such agreements
are not subject to section 15 and that in order to bring such an
agreement under section 15 some ofthe activities described in that section
must be covered by the agreement in the back up leases In so doing
he rejected Hearing Counsel s argument that the leases are part of the
same integrated operation as the subject Agreements and may effect
Anchorage s operations
The Presiding Officer was also not persuaded by Hearing Counsel s
arguments that similar leases between Sea Land and Anchorage were
filed and approved by the Commission pursuant to section 15 The
Presiding Officer is of the opinion that the Sea Land leases were also not
within the scope or purview of section 15 and the Commission s routine
approval thereofis not to be considered adefinitive ruling that they were
required section 15 submissions
It is our opinion that the Presiding Officer erred in his disposition of this
matter Since the Presiding Officer refused to allow Hearing Counsel to
19 F M C