Background

The Federal Maritime Commission is accepting comments through Oct. 21 on a proposed rule that would implement a recent statutory change prohibiting ocean common carriers from unreasonably refusing to deal or negotiate with respect to vessel space accommodations for imports and exports.

According to the FMC, the proposed rule would shift the burden of proving that a refusal to deal is reasonable from shippers to carriers, although “the ultimate burden of persuasion” would remain with the complainant. The proposal includes a rebuttable presumption of unreasonableness when a carrier categorically excludes U.S. exports from its backhaul trips from the U.S.

The rule also sets forth a non-exhaustive list of factors the FMC would consider in evaluating complaints, including whether the carrier followed a documented export strategy, engaged in good faith negotiations, and articulated legitime transportation factors.

The FMC notes that because the circumstances of each shipment are unique and it is therefore impossible to regulate for every possible scenario, cases alleging a violation would be factually driven and considered on a case-by-case basis.

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 recent shipping reform measures. 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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