U.S. DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS FEDERALAVIATIONADMINISTRATION FEDERAL AVIATION ADMINISTRATION, Complainant, FAADocketNo. 2014-0546
vs. Judge: Richard C. Goodwin DGW, Inc., d/b/aMelrose T-Top, Inti, Respondent. ANSWERAND AFFIRMATIVEDEFENSES TO COMPLAINT

# RECEIVED SEP 222014 HEARING DOCKET

NowCoMEs the Respondent, DGW, Inc., d/b/a Melrose T-Top ("Melrose"), by and through its attorneys, GRIFFINIWILLIAMS, LLP, and for its Answer and Affirmative Defensesto Complaint, states as follow:
I. Paragraph 1 ofthe Complaint contains a recitation ofthe procedural history of this matter, for which no answer is required ofRespondent.
II. I. Melrose admits that onMarch 13, 2013, in its ordinary course ofbusiness, it offered for delivery a package to UPS for delivery to a customer, but deny the remaining allegations inparagraphII, I and demand strictproofthereof. 2. Admit. 3. Melrose admits that the above-mentioned shipment was not accompanied by a Shipper's Certification or Declaration ofDangerous Goods, but affirmatively states that the packaging on the box was clearly marked "ORM-D", a ground-only method of



### 1shipping that does not reqmre Shipper's Certification or Declaration of Dangerous Goods, andwas intended solely for deliveryby groundtransportation. 4. Melrose lacks sufficientinformationto eitheradmitordeny the allegations containedinparagraphII, 4, andtherefore denies same anddemands strictproofthereof. 5. Melrose lacks sufficientinformationto either admit or denythe allegations contained inparagraphII, 5, andtherefore denies same anddemands strictproofthereof. 6. Admit. 7. Melrose lacks sufficientinformationto eitheradmitordeny the allegations containedinparagraphII, 5, andtherefore denies same and demands strictproofthereof. 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 paragraphII, 8(c), andtherefore denies same anddemands strictproofthereof. 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 ofapplicable federal laws and regulations, offered to ship apackagemarked "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



### 2UPS, at its option and in violation ofapplicable federal laws and regulations, offered to ship apackage 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 ofapplicable federal laws and regulations, offered to ship apackagemarked "ORM-D"by air. 12. Deny. Answering further, Melrose affirmatively states thatthe packaging
on the box was clearly marked "ORM-D", a ground-only method ofshipping, 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 thatthe packaging
on the box was clearly marked "ORM-D", a ground-only method ofshipping, 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 thatthe 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

3properly fitted with ringlocks that would have prevented their breakage and/or leakage under conditionsnormally incidentto transportation. 15. Deny. Answering further, Melrose affirmatively states thatthe packaging
on the box was clearly marked "ORM-D", a ground-only method ofshipping, 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 ofshipping, 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 ofshipping, 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 ofshipping, and was intended for delivery by ground transportation, and that UPS, at its option and in

4violation 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 ofshipping, 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 ofapplicable 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 ofshipping, 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 ofshipping, 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.



### 524. Deny. Answering further, Melrose affirmatively states that the packaging
on the box was clearly marked "ORM-D", a ground-only method ofshipping, 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 thatthe packaging
on the box was clearly marked "ORM-D", a ground-only method ofshipping, 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 ofshipping, and was intended for delivery by ground transportation, and that UPS, at its option and in violation ofapplicable 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 ofshipping, 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 thatthe 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

6violation of applicable federal laws and regulations, offered to ship a package marked "ORM-D"by air. 29. Deny. Answering further, Melrose affirmatively states thatthe packaging
on the box was clearly marked "ORM-D", a ground-only method ofshipping, 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 thatthe packaging
on the box was clearly marked "ORM-D", a ground-only method ofshipping, 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 ofshipping, and was intended for delivery by ground transportation, and that UPS, at its option and in violation ofapplicable federal laws and regulations, offered to ship a package marked "ORM-D"by air. 32. Deny. Answering further, Melrose affirmatively states thatthe packaging
on the box was clearly marked "ORM-D", a ground-only method ofshipping, 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.

733. Deny. Answering further, Melrose affirmatively states thatthe packaging
on the box was clearly marked "ORM-D", a ground-only method ofshipping, 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 ofshipping, 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 ofshipping, 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 underconditionsnormally incidentto transportation. 36. Deny. Answering further, Melrose affirmatively states thatthe 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



### 8properly fitted with ringlocks that would have prevented their breakage and/or leakage underconditionsnormally incidentto 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 ofapplicable 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 conclusionsfor whichno answer is required ofMelrose. 40. Deny.

FIRSTAFFIRMATIVE DEFENSES (No knowingviolation, pursuantto 49 U.S.C. § 5123, of49 C.F.R. Parts 171-173, etseq.) 1. United Parcel Service ("UPS") is a company whose business involves the transportationofgoods by ground and air. 2. MelrosehasusedUPS as avendorfor 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. Ellwalk, Cortland, Illinois.

94. In early March, 2013, UPS performed a software update which changed Melrose's default shipping methodfrom groundto "3 Day Select". 5. On or about March 13, 2013, Melrose received an order for 4 gallons of GM Restorationpaint (the "Order") and Melrose's customerpaid $220 for the paint, and $38 for ground shipping (for atotal 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 selectedthe default method of shipping, which was "3 Day Select" rather than the "Ground" (the former defaultmethod) form ofshipmentfrom 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 ofthe box, with directional arrows on the side. The box clearly indicateditcontained "4-l,U.S. Gallons." l0. At the time ofshipment ofthe Package (and on information and beliefas ofthis time) UPS's website does not indicate that "3 Day Select" can be either a ground
orairform oftransportation, atUPS'soption.



### 1011. 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 shipmentofthe Order. 12. Moreover,the customerofthe Orderpaidfor groundtransportation. 13. Pursuant to 49 U.S.C. § 5123, the Complainant bears the burden of establishing that Melrose "knowingly" violated the cited regulations of49 C.F.R. Parts 171-173, etseq. 14. Melrose did not knowingly violate the cited regulations of49 C.P.R. Parts 171-173, etseq.

SECOND AFFIRMATIVE DEFENSE (ContributoryNegligence- Mitigation ofCivil Penalty) 1- 14. Melrose reincorporates and realleges paragraphs 1 through 14, inclusive, ofitsFirstAffirmative Defense, as paragraph 1- 14 ofthis SecondAffirmative 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 ofa package intended for an air method of shipping, should have never been placed on an airplane. 17. Any violation ofthe cited regulations of49 C.P.R. Parts 171-173, etseq.,
was due to the negligence ofUPS and/or its employees, and any civil penalty should be mitigatedbythe acts, omissions, and contributorynegligence ofUPS.



### 11Respectfully submitted,
/ wwvnc.,



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**~~~~~-=~-----** Richard L. Williams JoshuaM. Feagans KristinN. 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 lawin the state ofIllinois, hereby certify that a copy ofthe foregoing Answer and Affirmative Defenses was mailed by Certified Mail, Return Receipt Requested, to the following persons on the date below indicated: FederalAviationAdministration Attn: HearingDocketClerk, AGC-430 WilburWrightBuilding- Suite 2Wl000 800 Independence Avenue, S.W. Washington, DC 20591 ChristopherR. Stevenson,Esq. Office ofRegional General Counsel, ASO-7 FederalAviationAdministration SouthernRegion 1701 ColumbiaAvenue College Park, Georgia 30337



### 12 Hon. Richard C. Goodwin Attn: PatriciaMatthews U.S. Administrative LawJudge Office ofHearings, M-20 U.S. DepartmentofTransportation 1200NewJerseyAvenue, S.E. (Ell-310) Washington, D.C. 20590



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