MARITIME (REGISTRATION OF FOREIGN-BASED UNLICENSED NVOCC’S) / “The Federal Maritime Commission … revises its rules to impose registration requirements on foreign-based unlicensed non-vessel-operating common carriers and to extend an exemption from certain provisions and requirements of the Shipping Act of 1984 and the Commission regulations to foreign-based unlicensed non-vessel-operating common carriers that agree to negotiated rate arrangements.” Great summary from Thompson Hine LLP.

Great summary from Karyn A. Booth, Esq. and Jason D. Tutrone, Esq. of Thompson Hine LLP issued the day after the final rule published in Federal Register available here.

“Non-Vessel-Operating Common Carrier Negotiated Rate Arrangements; Tariff Publication Exemption”

July 18, 2013. Final Rule.

“Under the Commission’s current rule at 46 CFR part 532, titled NVOCC Negotiated Rate Arrangements, licensed non-vessel-operating common carriers (NVOCCs) that choose to enter into negotiated rate arrangements (NRAs) are exempted from the tariff rate publication requirements of the Shipping Act of 1984 and certain provisions and requirements of the Commission’s regulations. At the time of the promulgation of the rule, the Commission determined to exempt only licensed NVOCCs because of concerns relating to the limited information available to the Commission about foreign-based unlicensed NVOCCs. Continue reading

REMARKS / MAY 31, 2013 notice of proposed rule making would re-write the Federal Maritime Commission Rules governing the licensing and operation of Non-Vessel Operating Common Carriers (NVOCC’s) in important ways, with more demanding requirements for NVOCC’s (OTI’s) and an arguably tougher regulatory environment – two excellent law firm summaries are out this week. Comment: Changes in the licensing and operations regime for NVOCC’s is sort of “inside baseball”, but it’s “inside baseball” for an economic function of massive proportions – the shipment of goods by sea on which 70 percent or more of U.S. international trade depends.

This blog reported on the Federal Register announcement earlier (available here).

“Federal Maritime Commission Proposes New Rules for Ocean Transportation Intermediaries”. Write-up by J. Michael Cavanaugh, Esq. and Farid Hekmat, Esq. of Holland & Knight.

“U.S.: FMC Approves Proposped Re-Write of OTI Regulations”. Write-up by Ashley W. Craig, Esq., Elizabeth K. Lowe, Esq. and Amanda C. Blunt, Esq.

Hat tip: Mondaq.

MARITIME (FEDERAL MARITIME ADMINISTRATION) / U.S. Federal Maritime Commission announced that the agreement framework governing price and related terms of trans-Pacific ocean freight westbound from the U.S. would be changed from the Westbound Transpacific Stabilization Agreement (suspended now from May 1, 2013 to April 14, 2015) to the new Transpacific Stabilization Agreement now amended to include WESTBOUND OCEAN FREIGHT TRAFFIC.

Official announcement of suspension agreement filed pursuant to the Shipping Act with the FMC. May 8, 2013. Notice of Agreements Filed

U.S. Federal Maritime Administration statement of Commissioner William P. Doyle.

Another instance of “regulated” price and other commercial terms in some corners of the transportation industry.

 

REMARKS / Complaint filed with Federal Maritime Commission (FMC) against a third party logistics company that is an NVOCC (non-vessel common carrier) by manufacturer of computer storage devices for (1) “billing amounts in excess of lawful tariff”, (2) “charging [complainant] rates greater than those it charged other shippers” in violation of the Shipping Act, and (3) what amounts to “hiding” the NVOCC’s tariffs and rates schedules so that it’s easier for the NVOCC to overcharge the shipper. Comment: Item 1 amounts to a breach of contract, especially when taken in connection with Item 3 – which could be brought in a court of general jurisdiction as an alternative to the specialized agency having jurisdiction over claims under the Shipping Act. Item 2 relates to a substantive limit on pricing imposed by the Shipping Act.

Elaboration on Item 3 above: “That ‘UTi violated 46 U.S.C. 40501 by failing to keep open to public inspection in its tariff system, tariffs showing all its rates, charges, classifications, rules and practices between all points or ports on its own route and on any through transportation route that has been established’.’’

April 24, 2013. Notice.

Streak Products, Inc. v. UTi United States, Inc., Docket No. 13-04, Federal Maritime Commission. 

Copy of complaint as filed with FMC here.

Legal Take-Away:

This is a routine commercial dispute under the Shipping Act brought before the Federal Maritime Commission instead of a court of general jurisdiction (which is where one would otherwise seek redress for breach of contract or violation of a statute).

Practical Take-Away:

To a large degree this part of maritime commerce – a huge phenomenon in the moving of goods into and out of the United States – is situated where rail and truck freight transportation were located before the deregulation legislation in the late 1970’s and early 1980’s. To a substantial degree such maritime freight traffic and the contracting for it are truly “regulated”.

Federal Maritime Commission requests additional information from Consolidated Chassis Management Pool Agreement.

This March 15, 2013 request is directed to “contributors to the CCM chassis pools, including non-regulated entities, such as, chassis leasing companies and motor carriers, to serve on the Governing Board of CCM Pools LLC and on the Boards of the Individual Pools, among other things.” 

Copy of press release available here.

SHIPPING ACT (49 U.S.C. § 41102(a)) / Administrative Notice of a Commercial Complaint filed with Federal Maritime Commission (FMC) for resolution – The point: FMC has jurisdiction under the Shipping Act to adjudicate dispute over alleged violation of 49 U.S.C. § 41102(a) regarding ocean freight “rates” or “charges”.

March 6, 2013, Notice.

Seagull Maritime Agencies Private Ltd. v. Gren Automotive, Inc., Centrus Automotive Distributors Inc., and Liu Shao, Individually

“Notice is given that a complaint has been filed with the Federal Maritime Commission (Commission) by Seagull Maritime Agencies Private Limited (“SMA”), hereinafter “Complainant,” against Gren Automotive, Inc. (“Gren”), Centrus Automotive Distributors Inc. (“Centrus”) and Mr. Liu Shao hereinafter “Respondents.” Complainant states that it is an FMC licensed non-vessel operating common-carrier (“NVOCC”) located in New Jersey. Complainant alleges that Respondent Gren is a New Jersey corporation and Respondent Centrus is or was a Florida corporation.

“Complainant alleges that Respondents, by failing to pay Complainant $63,010.68 owed for “transportation, customs duties, and other services,” violated 46 U.S.C. 41102(a) which provides that “[a] person may not knowingly and willfully, directly or indirectly, by means of false billing, false classification, false weighing, false report of weight, false measurement, or any other unjust or unfair device or means, obtain or attempt to obtain ocean transportation for property at less than the rates or charges that would otherwise apply.”

“Complainant requests that the Commission issue the following relief: “(1) An Order compelling Respondents to Answer the charges made herein and scheduling a hearing in Washington, DC during which the Commission may receive evidence in this matter; (2) An Order holding that the Respondents, Centrus, Gren, and Mr. Liu Shao individually violated § 41102(a) of the Shipping Act; (3) An Order compelling Respondents, Centrus, Gren, and Liu Shao individually to make reparations to Complainant SMA in the amount of $63,010.68 for failure to pay freight and related charges as describe herein; (4) An Order requiring Respondents to compensate SMA for its attorney’s fees, interests, and costs and expenses incurred in this matter according to proof; (5) Such other and further relief as the Commission deems just and proper.”

“The full text of the complaint can be found in the Commission’s Electronic Reading Room at www.fmc.gov/13-03.

This proceeding has been assigned to the Office of Administrative Law Judges. The initial decision of the presiding officer in this proceeding shall be issued by March 3, 2014 and the final decision of the Commission shall be issued by July 1, 2014.”

REMARKS – Federal Maritime Commission’s “Notice of Request for Additional Information” to Transpacific Stabilization Agreement’s proposed expansion to include westbound trans-Pacific lines – in addition to the current eastbound.

February 5, 2013, Notice of Request for Additional Information.

As the Journal of Commerce observed last week, the Transpacific Stabilization Agreement is a “discussion” agreement that “allow[s] carriers to discuss and establish voluntary rate guideline but not to jointly set rates”.

With the requested change the Westbound Transpacific Stabilization Agreement would cease to exist.

The parties to this agreement: “American President Lines, Ltd. and APL Co. PTE Ltd. (operating as a single carrier); A.P. Moller-Maersk A/S trading as Maersk Line; China Shipping Container Lines (Hong Kong) Company Limited and China Shipping Container Lines Company Limited (operating as a single carrier); CMA CGM, S.A.; COSCO Container Lines Company Ltd; Evergreen Line Joint Service Agreement; Hanjin Shipping Co., Ltd.; Hapag-Lloyd AG; Hyundai Merchant Marine Co., Ltd.; Kawasaki Kisen Kaisha Ltd.; Mediterranean Shipping Company; Nippon Yusen Kaisha; Orient Overseas Container Line Limited; Yangming Marine Transport Corp.; and Zim Integrated Shipping Services, Ltd.” 

Note National Industrial Transportation League letter to the FMC dated January 29, 2013