FMC issues policy statements on complaints process

The US Federal Maritime Commission (FMC) has issued new policy statements to provide guidance to shippers and others on bringing private party complaints at the commission.

Three policy statements were issued on 28 December addressing barriers identified by the trade community as disincentives to filing actions at the agency.

As informed, the policy statements were proposed by commissioner Rebecca F. Dye in a set of Interim Recommendations she issued in July 2021. The FMC voted in September 2021, to implement her recommendations that do not require legislative action.

In the first policy statement, the FMC reiterates that shippers’ associations and trade associations may file a complaint alleging a prohibited act violation under 46 U.S.C. Chapter 411. This allows these organizations to protect the interests of their members while also providing shippers with a degree of separation and insulation from potential retaliation.

The second statement explains the Commission’s approach to attorney fees and reiterates that a party who brings an unsuccessful complaint is not automatically required to pay the other party’s attorney fees. The Commission will look favourably upon complainants who raise non-frivolous claims in good faith, who litigate zealously but within the rules and for proper purposes, and who comply with the Commission orders.

Finally, in the third statement on retaliation, the FMC emphasizes that it broadly defines both who can bring a retaliation complaint, as well as the types of shipper activity that are protected under the existing retaliation prohibitions. This policy statement also addresses the proof necessary for certain retaliation complaints.

Two months ago, FMC urged the world’s top ocean carriers to adopt three best practices related to when and how detention and demurrage fees are applied, as well as how to dispute the charges.

The call for industry-wide adoption of best practices came in a letter FMC Managing Director Lucille Marvin sent to 25 container lines and the World Shipping Council. The letter is the latest call of the FMC and follows the establishment of the Vessel-Operating Common Carrier (VOCC) Audit Program.