The Federal Maritime Commission issued Dec. 28 three policy statements designed to address disincentives to filing complaints against shipping violations, which have contributed to ongoing supply chain challenges.
In the first statement, the FMC emphasized that trade and shippers’ associations can file complaints to protect the interests of their members, even if the association itself was not the party injured by the alleged violation. The FMC noted that private party complaint proceedings significantly influence the development of shipping law and that neither the law nor the Commission’s interpretation of it preclude a person from filing a complaint to protect others from potentially unlawful conduct.
The second statement details the FMC’s approach to timing, procedures, eligibility, and entitlement to attorney fees because shippers have suggested that a lack of clarity about a complainant’s liability for a respondent’s attorney fees might deter shippers from filing complaints.
The third statement emphasizes that the FMC will broadly interpret the statutory provision prohibiting common carriers from retaliating against shippers (e.g., by refusing cargo when space is available) for filing a complaint or patronizing another carrier. This statement is intended to ensure that shippers feel free to air their grievances to the FMC and to address new shipping practices and new forms of retaliation. Among other things, this statement confirms 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.
Sandler, Travis & Rosenberg is continuing a campaign to advocate with federal regulators and lawmakers on solutions to the supply chain crisis. For more information on this campaign and how to participate, please contact Ned Steiner at (202) 730-4970 or via email.
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