The Federal Maritime Commission is asking the top 20 shipping lines calling the U.S. to provide information on how they are complying with the new prohibitions on retaliation established by the Ocean Shipping Reform Act of 2022.

OSRA prohibits carriers, marine terminal operators, and ocean transportation intermediaries from retaliating against shippers (e.g., by refusing or threatening to refuse available service) because they have patronized another carrier or filed a complaint with the FMC. The Commission has said it will broadly interpret this prohibition to ensure that shippers feel free to air their grievances to the FMC and to address new shipping practices and new forms of retaliation.

A statement to that effect issued last year confirmed that (1) although the law protects shippers from retaliation, that term includes more than just cargo owners, (2) protected activity includes not only filing a complaint but also participating in FMC investigatory or enforcement efforts, commenting on a rulemaking, or using FMC dispute resolution procedures, and (3) to establish a violation, a complainant alleging retaliation or other unfair or unjustly discriminatory conduct based on grievance-related activity does not need to prove that the carrier’s conduct was designed to stifle competition or that the shipper at issue sought the services of a carrier other than the respondent.

The FMC now says that its Vessel-Operating Common Carrier Audit Team is examining how ocean carriers are adapting to the increased prohibitions on retaliatory and discriminatory behavior. The team will specifically focus on how companies are training personnel at all levels to act legally and how those same employees are being made aware of the consequences for violating the law. “Even a simple verbal threat to a shipper from an ocean carrier employee could undermine U.S. law and will not be tolerated,” said Chairman Dan Maffei.

The FMC said its examination began earlier this month via correspondence and all recipients will have until mid-January to provide their initial responses. Additionally, the audit team will discuss this topic in person and in deeper detail with the 11 largest carriers participating in the next round of meetings through the VOCC Audit Program.

ST&R’s team of former FMC and DOJ litigation personnel, freight forwarders, and former administration and congressional staffers can help shippers understand, comply with, and take advantage of OSRA 22. For more information, please contact Jason Kenner (at (212) 549-0137 or via email), Andy Margolis (at (305) 894-1021 or via email), or Ned Steiner (at (202) 730-4970 or via email.)

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Jason M. Kenner
Member, Litigation Practice Leader
Edward Steiner
Senior Director, International Trade & Government Relations
Andrew Margolis
Of Counsel

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