The Federal Maritime Commission says it has received more than 175 shipper complaints against carrier charges since it started accepting them this past summer. The FMC has also recently announced its interim procedures for processing such complaints.
Under authority provided under the Ocean Shipping Reform Act of 2022, the FMC accepts complaints disputing charges assessed by common carriers – including demurrage and detention fees – that may not comply with the provisions of that law. To file a complaint shippers have to identify the carrier and the specific alleged violations, gather and submit supporting documentation (e.g., invoices, bill of lading numbers, and evidence of whether the charges have been paid), and confirm that the disputed charges were incurred on or after June 16 (the date OSRA 22 was enacted).
Under a newly announced interim process, a complaint that has sufficient information and details is promptly investigated by FMC staff in the Office of Investigations. The carrier will be contacted by FMC staff and asked to respond to the complaint and justify the charge or fee being investigated.
If the investigation supports a finding that the carrier’s charge is not in compliance with OSRA, the FMC’s Office of Enforcement will recommend the issuance of an order to show cause to the carrier to formally adjudicate the complaint. The carrier must then show why it should not be ordered to refund the fees or charges paid or waive the fees in question. The FMC will subsequently issue a decision on the order and, for charges not in compliance with OSRA, order a refund or waiver. The FMC may also initiate a separate civil penalty proceeding with the Commission’s administrative law judge.
The FMC notes that experience gained from proceedings utilizing these interim procedures will guide it on how to create a permanent process, which would be completed through a formal rulemaking after notice and public comment.
The complaint process is separate from pursuing a legal case against violative charges, which shippers can still do by filing a formal or informal complaint with the FMC. A legal case can also result in reparations, including freight costs, unreasonable fees, and lost business and profits. In addition, shippers can still seek alternative dispute resolution services through the FMC or through a pre-complaint settlement with the carrier.
For more information on the feasibility of filing a complaint, or any of ST&R’s other FMC-related services, 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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