U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION 

ADMINISTRATION, 

Complainant, FAA Docket No. 2014-0546 

vs. Judge: Richard C. Goodwin 

DGW, Inc., d/b/a Melrose T-Top, Inti, 

Respondent. 

ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT 

RECEIVED 

SEP 2 2 2014 

HEARING DOCKET 

Now CoMEs the Respondent, DGW, Inc., d/b/a Melrose T-Top ("Melrose"), by 

and through its attorneys, GRIFFINIWILLIAMS, LLP, and for its Answer and Affirmative 

Defenses to Complaint, states as follow: 

I. 

Paragraph 1 of the Complaint contains a recitation of the procedural history of 

this matter, for which no answer is required of Respondent. 

II. 

I. Melrose admits that on March 13, 2013, in its ordinary course of business, 

it offered for delivery a package to UPS for delivery to a customer, but deny the 

remaining allegations in paragraph II, I and demand strict proof thereof. 

2. Admit. 

3. Melrose admits that the above-mentioned shipment was not accompanied 

by a Shipper's Certification or Declaration of Dangerous Goods, but affirmatively states 

that the packaging on the box was clearly marked "ORM-D", a ground-only method of 

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shipping that does not reqmre Shipper's Certification or Declaration of Dangerous 

Goods, and was intended solely for delivery by ground transportation. 

4. Melrose lacks sufficient information to either admit or deny the allegations 

contained in paragraph II, 4, and therefore denies same and demands strict proof thereof. 

5. Melrose lacks sufficient information to either admit or deny the allegations 

contained in paragraph II, 5, and therefore denies same and demands strict proof thereof. 

6. Admit. 

7. Melrose lacks sufficient information to either admit or deny the allegations 

contained in paragraph II, 5, and therefore denies same and demands strict proof thereof. 

8. (a) 

(b) 

Admit 

Admit 

(c) Melrose admits that the quantity of GM Vehicle Care Black 

Reconditioning Paint in the package exceeded 5 liters, but lacks sufficient 

information to either admit or deny the remaining allegations contained m 

paragraph II, 8( c), and therefore denies same and demands strict proof thereof. 

9. Deny (a) through (f), inclusive. Answering further, Melrose affirmatively 

states that the packaging on the box was clearly marked "ORM-D", a ground-only 

method of shipping, and was intended for delivery by ground transportation, and that 

UPS, at its option and in violation of applicable federal laws and regulations, offered to 

ship a package marked "ORM-D" by air. 

10. Deny (a) through (c), inclusive. Answering further, Melrose affirmatively 

states that the packaging on the box was clearly marked "ORM-D", a ground-only 

method of shipping, and was intended for delivery by ground transportation, and that 

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UPS, at its option and in violation of applicable federal laws and regulations, offered to 

ship a package marked "ORM-D" by air. 

11. Deny (a) through (e) inclusive. Answering further, Melrose affirmatively 

states that the packaging on the box was clearly marked "ORM-D", a ground-only 

method of shipping, and was intended for delivery by ground transportation, and that 

UPS, at its option and in violation of applicable federal laws and regulations, offered to 

ship a package marked "ORM-D" by air. 

12. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

13. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

14. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. Moreover, Melrose affirmatively states that the inner packagings were 

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properly fitted with ringlocks that would have prevented their breakage and/or leakage 

under conditions normally incident to transportation. 

15. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

16. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

17. Deny. 

III 

18. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

19. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

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violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

20. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

21. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

22. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

23. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-0", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

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24. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

25. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

26. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

27. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

28. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

6 
violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

29. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

30. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

31. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

32. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

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33. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

34. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

35. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. Moreover, Melrose affirmatively states that the inner packagings were 

properly fitted with ringlocks that would have prevented their breakage and/or leakage 

under conditions normally incident to transportation. 

36. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. Moreover, Melrose affirmatively states that the inner packagings were 

8 
properly fitted with ringlocks that would have prevented their breakage and/or leakage 

under conditions normally incident to transportation. 

37. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

38. Deny. Answering further, Melrose affirmatively states that the packaging 

on the box was clearly marked "ORM-D", a ground-only method of shipping, and was 

intended for delivery by ground transportation, and that UPS, at its option and in 

violation of applicable federal laws and regulations, offered to ship a package marked 

"ORM-D" by air. 

39. The allegations contained in paragraph 39 of the Complaint are legal 

conclusions for which no answer is required of Melrose. 

40. Deny. 

FIRST AFFIRMATIVE DEFENSES 

(No knowing violation, pursuant to 49 U.S.C. § 5123, of 49 C.F.R. Parts 171-173, et seq.) 

1. United Parcel Service ("UPS") is a company whose business involves the 

transportation of goods by ground and air. 

2. Melrose has used UPS as a vendor for over 30 years. 

3. Melrose has an account with UPS and generates shipping labels directly 

from the UPS website (>Y\V\\f.\ll1_S,_C(11Jl), and UPS picks up packages from Melrose's 

facility located at 100 W. Ell walk, Cortland, Illinois. 

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4. In early March, 2013, UPS performed a software update which changed 

Melrose's default shipping method from ground to "3 Day Select". 

5. On or about March 13, 2013, Melrose received an order for 4 gallons of 

GM Restoration paint (the "Order") and Melrose's customer paid $220 for the paint, and 

$38 for ground shipping (for a total of $258.00). 

6. Melrose has experience shipping materials (such as the Order), which it 

ships by ground and marks the applicable packages as "ORM-D" and are otherwise in 

compliance with applicable law. 

7. Upon receipt of the Order, one of Melrose's employees processed the 

shipment and generated a shipping label through the UPS website under Melrose's 

account, generating shipping number lZ6174891260337371. 

8. While processing the shipment, the Melrose employee selected the default 

method of shipping, which was "3 Day Select" rather than the "Ground" (the former 

default method) form of shipment from UPS for the Order. 

9. The UPS generated shipping label for the Order was placed in a 

corrugated shipping box (the "Package") which was clearly marked "ORM-D" and 

indicated "THIS SIDE UP" on the top of the box, with directional arrows on the side. 

The box clearly indicated it contained "4-l, U.S. Gallons." 

l 0. At the time of shipment of the Package (and on information and belief as 

of this time) UPS's website does not indicate that "3 Day Select" can be either a ground 

or air form of transportation, at UPS's option. 

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11. At the time the Package was delivered for shipment by UPS, neither 

Melrose, nor its employees, had any idea that UPS would utilize air transportation for 

shipment of the Order. 

12. Moreover, the customer of the Order paid for ground transportation. 

13. Pursuant to 49 U.S.C. § 5123, the Complainant bears the burden of 

establishing that Melrose "knowingly" violated the cited regulations of 49 C.F .R. Parts 

171-173, et seq. 

14. Melrose did not knowingly violate the cited regulations of 49 C.P.R. Parts 

171-173, et seq. 

SECOND AFFIRMATIVE DEFENSE 

(Contributory Negligence- Mitigation of Civil Penalty) 

1 - 14. Melrose reincorporates and realleges paragraphs 1 through 14, inclusive, 

of its First Affirmative Defense, as paragraph 1 - 14 of this Second Affirmative Defense. 

15. On information and belief, numerous UPS employees handled the 

Package. 

16. UPS knew, or reasonably should have known, that the Package, plainly 

marked as ORM-D (a ground-only method of shipping) and without any attributes of a 

package intended for an air method of shipping, should have never been placed on an 

airplane. 

17. Any violation of the cited regulations of 49 C.P.R. Parts 171-173, et seq., 

was due to the negligence of UPS and/or its employees, and any civil penalty should be 

mitigated by the acts, omissions, and contributory negligence of UPS. 

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Respectfully submitted, 

/

wwvnc., d/b/a~;~se T-Top 

/ \ \ 

( // -L ~:·.~ .. ~~~~~-=~-----

Richard L. Williams 

Joshua M. Feagans 

Kristin N. Stone 

GRJFFINIWILLIAMS LLP 

501 W. State Street, Suite 203 

Geneva, IL 60134 

(630) 457-1205 

(630) 262-0644 facsimile 

CERTIFICATE OF SERVICE 

The undersigned, an attorney duly licensed to practice law in the state of Illinois, 

hereby certify that a copy of the foregoing Answer and Affirmative Defenses was mailed 

by Certified Mail, Return Receipt Requested, to the following persons on the date below 

indicated: 

Federal Aviation Administration 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Christopher R. Stevenson, Esq. 

Office of Regional General Counsel, ASO-7 

Federal Aviation Administration 

Southern Region 

1701 Columbia Avenue 

College Park, Georgia 30337 

12 

Hon. Richard C. Goodwin 

Attn: Patricia Matthews 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, D.C. 20590 

'