Port congestion, detention, and demurrage are only some of the shipping issues that US shippers have raised this year to the Federal Maritime Commission (FMC). In March the FMC initiated a team to review and study the current issues that have been placed at their doorstep.
A few months have transpired, and some initial recommendations have been proposed. These recommendations are aimed at minimizing barriers to private party enforcement of the Shipping Act, clarifying Commission and industry processes, encouraging shippers, truckers, and other stakeholders to assist Commission enforcement efforts, and bolstering CADRS’ ability to facilitate fair and fast dispute resolution. The Fact-Finding Officer also fully supports the Commission’s recently announced Vessel-Operating Common Carrier Audit Program and BOE’s continuing investigations into unreasonable demurrage and detention practices.
The report calls out the following six recommendations: three of the recommendations are requesting regulatory changes to amend 46 USC.
Recommendation 1: Amend 46 U.S.C. § 41104(a)(3) to broaden the anti-retaliation provision so that it applies to all regulated entities and protects anyone who complains about potentially unlawful conduct to the Commission.
- The suggested change proposes that a common carrier, marine terminal operator, or ocean transportation intermediary, either alone or in conjunction with any other person, directly or indirectly, may not – retaliate against a shipper, a shipper’s agent, or a motor carrier by refusing, or threatening to refuse, cargo space accommodations when available, or resort to other unfair or unjustly 3 discriminatory methods because the shipper has patronized another carrier, or has filed a complaint, or for any other reason.
Recommendation 2: Amend 46 U.S.C. § 41305(c) to authorize the Commission to order double reparations for violations of 46 U.S.C. § 41102(c).
- This suggested change allows additional reparations if the situation warrants it, the Commission may order the payment of additional amounts, but the total recovery of a complainant may not exceed twice the amount of the actual injury.
Recommendation 3: Issue a policy statement on retaliation, attorney fees, and representational complaints.
- This recommendation states that clarity is needed when a claim has been filed with the commission regarding the fees or costs that are incurred when an issue has been brought forth:
- The Commission should provide guidance on the standard for recovering attorney fees in private party complaints.
- The Commission should reiterate that any person may file a complaint alleging a Shipping Act violation, including shippers’ associations and trade associations.
Recommendation 4: Revise the Commission’s website to (a) more clearly distinguish between the processes for providing information to BOE, requesting assistance from CADRS, and filing a small claim for or non-small-claims complaint; and (b) make communications more intuitive for website visitors.
- The Commission website should more clearly explain, in one place, the differences between private party complaints, BOE investigation and enforcement, and CADRS dispute resolution.
Recommendation 5: Hold a webinar to explain Commission processes.
- To combat existing confusion about processes at the Commission, the Fact-Finding Officer also recommends holding a webinar explaining the differences between contacting CADRS or BOE and filing a or small claims or non-small-claims complaint.
Recommendation 6: Issue an ANPRM seeking industry views on whether the Commission should require common carriers and marine terminal operators to include certain minimum information on or with demurrage and detention billings and adhere to certain practices regarding the timing of demurrage and detention billings.
Recommendation 7: Amend 46 U.S.C. §§ 41109 and 41309 to authorize the Commission to order refund relief in addition to civil penalties in enforcement proceedings.
- The Commission may compromise, modify, or remit, with or without conditions, a civil penalty or refund of money.
Recommendation 8: Designate an Export Expert in CADRS.
- The Commission recommends dedicating staff to export-related issues, which are similar, but not identical, to issues faced by U.S. importers.
Click here for the full fact-finding report, in general, the recommendations are a step in the right direction to allow unlawful practices when they happen to be brought to the attention of the FMC for a review. Additional reviews and practices will be reviewed addressed in the coming months and we do expect additional resolutions to be put forth.
