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The US Federal Maritime Commission (FMC) published on 28 December three policy statements which provide new guidance to shippers and others on bringing private party complaints at the FMC and to address barriers identified by the trade community as disincentives to filing legal actions. These guidelines are part of the Interim Recommendations made by commissioner Rebecca Dye in the framework of the Fact Finding 29 investigation on the impact of COVID-19 on maritime supply chains, which were published in July 2021.

The first statement outlines that shippers’ associations and trade associations may file a complaint alleging a prohibited act violation under the Shipping Act, in order to allow these organisations to protect the interests of their members from potential retaliation. The second statement explains the FMC approach on attorney fees and reiterates that a party who brings an unsuccessful complaint is not automatically required to pay the other party’s attorney fees if the filing was made in good faith. This statement is designed to relieve shippers, who have expressed concerns that liability for opponents’ attorney fees might deter them from filing complaints. Finally, the third statement focuses on retaliation, emphasising that the FMC will broadly defines both who can bring a retaliation complaint, as well as the types of shipper activity that is protected under the existing retaliation prohibitions.

Meanwhile, the FMC is currently auditing nine major container lines to determine if they are taking advantage of tight market conditions to overcharge shippers on so-called detention and demurrage. The U.S. House of Representatives recently passed legislation that would increase enforcement of the container shipping industry. Key provisions would impose minimum requirements on ocean carrier service contracts, shift the burden of proof in regulatory proceedings from shippers to the container lines and mandate carriers accept export cargo if it can be safely loaded in a reasonable time.

Source: FMC