Collapse to view only § 41106. Marine terminal operators
- § 41101. Joint ventures and consortiums
- § 41102. General prohibitions
- § 41103. Disclosure of information
- § 41104. Common carriers
- § 41105. Concerted action
- § 41105A. Authority
- § 41106. Marine terminal operators
- § 41107. Monetary penalties or refunds
- § 41108. Additional penalties
- § 41109. Assessment of penalties
- § 41110. Data collection
§ 41101. Joint ventures and consortiums
In this chapter, a joint venture or consortium of two or more common carriers operating as a single entity is deemed to be a single common carrier.
(Pub. L. 109–304, § 7, Oct. 6, 2006, 120 Stat. 1540.)
§ 41102. General prohibitions
(a)Obtaining Transportation at Less Than Applicable Rates.—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.
(b)Operating Contrary to Agreement.—A person may not operate under an agreement required to be filed under section 40302 or 40305 of this title if—
(1) the agreement has not become effective under section 40304 of this title or has been rejected, disapproved, or canceled; or
(2) the operation is not in accordance with the terms of the agreement or any modifications to the agreement made by the Federal Maritime Commission.
(c)Practices in Handling Property.—A common carrier, marine terminal operator, or ocean transportation intermediary may not fail to establish, observe, and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property.
(d)Retaliation and Other Discriminatory Actions.—A common carrier, marine terminal operator, or ocean transportation intermediary, acting alone or in conjunction with any other person, directly or indirectly, may not—
(1) retaliate against a shipper, an agent of a shipper, an ocean transportation intermediary, or a motor carrier by refusing, or threatening to refuse, an otherwise-available cargo space accommodation; or
(2) resort to any other unfair or unjustly discriminatory action for—
(A) the reason that a shipper, an agent of a shipper, an ocean transportation intermediary, or motor carrier has—
(i) patronized another carrier; or
(ii) filed a complaint against the common carrier, marine terminal operator, or ocean transportation intermediary; or
(B) any other reason.
(Pub. L. 109–304, § 7, Oct. 6, 2006, 120 Stat. 1540; Pub. L. 117–146, § 5, June 16, 2022, 136 Stat. 1273.)
§ 41103. Disclosure of information
(a)Prohibition.—A common carrier, marine terminal operator, or ocean freight forwarder, either alone or in conjunction with any other person, directly or indirectly, may not knowingly disclose, offer, solicit, or receive any information concerning the nature, kind, quantity, destination, consignee, or routing of any property tendered or delivered to a common carrier, without the consent of the shipper or consignee, if the information—
(1) may be used to the detriment or prejudice of the shipper, the consignee, or any common carrier; or
(2) may improperly disclose its business transaction to a competitor.
(b)Exceptions.—Subsection (a) does not prevent providing the information—
(1) in response to legal process;
(2) to the Federal Maritime Commission or an agency of the United States Government; or
(3) to an independent neutral body operating within the scope of its authority to fulfill the policing obligations of the parties to an agreement effective under this part.
(c)Disclosure for Determining Breach or Compiling Statistics.—An ocean common carrier that is a party to a conference agreement approved under this part, a receiver, trustee, lessee, agent, or employee of the carrier, or any other person authorized by the carrier to receive information—
(1) may give information to the conference or any person or agency designated by the conference, for the purpose of—
(A) determining whether a shipper or consignee has breached an agreement with the conference or its member lines;
(B) determining whether a member of the conference has breached the conference agreement; or
(C) compiling statistics of cargo movement; and
(2) may not prevent the conference or its designee from soliciting or receiving information for any of those purposes.
(Pub. L. 109–304, § 7, Oct. 6, 2006, 120 Stat. 1540.)
§ 41104. Common carriers
(a)In General.—A common carrier, either alone or in conjunction with any other person, directly or indirectly, shall not—
(1) allow a person to obtain transportation for property at less than the rates or charges established by the carrier in its tariff or service contract by means of false billing, false classification, false weighing, false measurement, or any other unjust or unfair device or means;
(2) provide service in the liner trade that is—
(A) not in accordance with the rates, charges, classifications, rules, and practices contained in a tariff published or a service contract entered into under chapter 405 of this title, unless excepted or exempted under section 40103 or 40501(a)(2) of this title; or
(B) under a tariff or service contract that has been suspended or prohibited by the Federal Maritime Commission under chapter 407 or 423 of this title;
(3) unreasonably refuse cargo space accommodations when available, or resort to other unfair or unjustly discriminatory methods;
(4) for service pursuant to a tariff, engage in any unfair or unjustly discriminatory practice in the matter of—
(A) rates or charges;
(B) cargo classifications;
(C) cargo space accommodations or other facilities, with due regard being given to the proper loading of the vessel and the available tonnage;
(D) loading and landing of freight; or
(E) adjustment and settlement of claims;
(5) for service pursuant to a service contract, engage in any unfair or unjustly discriminatory practice against any commodity group or type of shipment or in the matter of rates or charges with respect to any port;
(6) use a vessel in a particular trade for the purpose of excluding, preventing, or reducing competition by driving another ocean common carrier out of that trade;
(7) offer or pay any deferred rebates;
(8) for service pursuant to a tariff, give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage;
(9) for service pursuant to a service contract, give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage with respect to any port;
(10) unreasonably refuse to deal or negotiate, including with respect to vessel space accommodations provided by an ocean common carrier;
(11) knowingly and willfully accept cargo from or transport cargo for the account of a non-vessel-operating common carrier that does not have a tariff as required by section 40501 of this title, or an ocean transportation intermediary that does not have a bond, insurance, or other surety as required by section 40902 of this title;
(12) knowingly and willfully enter into a service contract with an ocean transportation intermediary that does not have a tariff as required by section 40501 of this title and a bond, insurance, or other surety as required by section 40902 of this title, or with an affiliate of such an ocean transportation intermediary;
(13) continue to participate simultaneously in a rate discussion agreement and an agreement to share vessels, in the same trade, if the interplay of the authorities exercised by the specified agreements is likely, by a reduction in competition, to produce an unreasonable reduction in transportation service or an unreasonable increase in transportation cost;
(14) assess any party for a charge that is inconsistent or does not comply with all applicable provisions and regulations, including subsection (c) of section 41102 or part 545 of title 46, Code of Federal Regulations (or successor regulations);
(15) invoice any party for demurrage or detention charges unless the invoice includes information as described in subsection (d) showing that such charges comply with—
(A) all provisions of part 545 of title 46, Code of Federal Regulations (or successor regulations); and
(B) applicable provisions and regulations, including the principles of the final rule published on May 18, 2020, entitled “Interpretive Rule on Demurrage and Detention Under the Shipping Act” (or successor rule); or
(16) for service pursuant to a service contract, give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage against any commodity group or type of shipment.
(b)Rule of Construction.—Notwithstanding any other provision of law, there is no private right of action to enforce the prohibition under subsection (a)(13).
(c)Agreement Violation.—Participants in an agreement found by the Commission to violate subsection (a)(13) shall have 90 days from the date of such Commission finding to withdraw from the agreement as necessary to comply with that subsection.
(d)Detention and Demurrage Invoice Information.—
(1)Inaccurate invoice.—If the Commission determines, after an investigation in response to a submission under section 41310, that an invoice under subsection (a)(15) was inaccurate or false, penalties or refunds under section 41107 shall be applied.
(2)Contents of invoice.—An invoice under subsection (a)(15), unless otherwise determined by subsequent Commission rulemaking, shall include accurate information on each of the following, as well as minimum information as determined by the Commission:
(A) Date that container is made available.
(B) The port of discharge.
(C) The container number or numbers.
(D) For exported shipments, the earliest return date.
(E) The allowed free time in days.
(F) The start date of free time.
(G) The end date of free time.
(H) The applicable detention or demurrage rule on which the daily rate is based.
(I) The applicable rate or rates per the applicable rule.
(J) The total amount due.
(K) The email, telephone number, or other appropriate contact information for questions or requests for mitigation of fees.
(L) A statement that the charges are consistent with any of Federal Maritime Commission rules with respect to detention and demurrage.
(M) A statement that the common carrier’s performance did not cause or contribute to the underlying invoiced charges.
(e)Safe Harbor.—If a non-vessel operating common carrier passes through to the relevant shipper an invoice made by the ocean common carrier, and the Commission finds that the non-vessel operating common carrier is not otherwise responsible for the charge, then the ocean common carrier shall be subject to refunds or penalties pursuant to subsection (d)(1).
(f)Elimination of Charge Obligation.—Failure to include the information required under subsection (d) on an invoice with any demurrage or detention charge shall eliminate any obligation of the charged party to pay the applicable charge.
(Pub. L. 109–304, § 7, Oct. 6, 2006, 120 Stat. 1541; Pub. L. 115–282, title VII, § 708(a), Dec. 4, 2018, 132 Stat. 4295; Pub. L. 117–146, § 7(a), June 16, 2022, 136 Stat. 1274.)
§ 41105. Concerted actionA conference or group of two or more common carriers may not—
(1) boycott or take any other concerted action resulting in an unreasonable refusal to deal;
(2) engage in conduct that unreasonably restricts the use of intermodal services or technological innovations;
(3) engage in any predatory practice designed to eliminate the participation, or deny the entry, in a particular trade of a common carrier not a member of the conference, a group of common carriers, an ocean tramp, or a bulk carrier;
(4) negotiate with a non-ocean carrier or group of non-ocean carriers (such as truck, rail, or air operators) on any matter relating to rates or services provided to ocean common carriers within the United States by those non-ocean carriers, unless the negotiations and any resulting agreements are not in violation of the antitrust laws and are consistent with the purposes of this part, except that this paragraph does not prohibit the setting and publishing of a joint through rate by a conference, joint venture, or association of ocean common carriers;
(5) negotiate with a tug or towing vessel service provider on any matter relating to rates or services provided within the United States by those tugs or towing vessels;
(6) with respect to a vessel operated by an ocean common carrier within the United States, negotiate for the purchase of certain covered services, unless the negotiations and any resulting agreements are not in violation of the antitrust laws and are consistent with the purposes of this part, except that this paragraph does not prohibit the setting and publishing of a joint through rate by a conference, joint venture, or association of ocean common carriers;
(7) deny in the export foreign commerce of the United States compensation to an ocean freight forwarder or limit that compensation to less than a reasonable amount;
(8) allocate shippers among specific carriers that are parties to the agreement or prohibit a carrier that is a party to the agreement from soliciting cargo from a particular shipper, except as—
(A) authorized by section 40303(d) of this title;
(B) required by the law of the United States or the importing or exporting country; or
(C) agreed to by a shipper in a service contract;
(9) for service pursuant to a service contract, engage in any unjustly discriminatory practice in the matter of rates or charges with respect to any locality, port, or person due to the person’s status as a shippers’ association or ocean transportation intermediary; or
(10) for service pursuant to a service contract, give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage with respect to any locality, port, or person due to the person’s status as a shippers’ association or ocean transportation intermediary.
(Pub. L. 109–304, § 7, Oct. 6, 2006, 120 Stat. 1542; Pub. L. 115–282, title VII, § 709(a), Dec. 4, 2018, 132 Stat. 4296.)
§ 41105A. Authority
Nothing in section 41105, as amended by the Federal Maritime Commission Authorization Act of 2017, shall be construed to limit the authority of the Department of Justice regarding antitrust matters.
(Added Pub. L. 115–282, title VII, § 709(b)(1), Dec. 4, 2018, 132 Stat. 4296.)
§ 41106. Marine terminal operators
A marine terminal operator may not—
(1) agree with another marine terminal operator or with a common carrier to boycott, or unreasonably discriminate in the provision of terminal services to, a common carrier or ocean tramp;
(2) give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage with respect to any person; or
(3) unreasonably refuse to deal or negotiate.
(Pub. L. 109–304, § 7, Oct. 6, 2006, 120 Stat. 1543.)
§ 41107. Monetary penalties or refunds
(a)In General.—A person that violates this part or a regulation or order of the Federal Maritime Commission issued under this part is liable to the United States Government for a civil penalty or, in addition to or in lieu of a civil penalty, is liable for the refund of a charge. Unless otherwise provided in this part, the amount of the penalty may not exceed $5,000 for each violation or, if the violation was willfully and knowingly committed, $25,000 for each violation. Each day of a continuing violation is a separate violation.
(b)Lien on Carrier’s Vessels.—The amount of a civil penalty or, in addition to or in lieu of a civil penalty, the refund of a charge, imposed on a common carrier under this section constitutes a lien on the vessels operated by the carrier. Any such vessel is subject to an action in rem to enforce the lien in the district court of the United States for the district in which it is found.
(Pub. L. 109–304, § 7, Oct. 6, 2006, 120 Stat. 1543; Pub. L. 117–146, § 8(a)(1), June 16, 2022, 136 Stat. 1276.)
§ 41108. Additional penalties
(a)Suspension of Tariffs.—For a violation of paragraph (1), (2), or (7) of section 41104(a) of this title, the Federal Maritime Commission may suspend any or all tariffs of the common carrier, or that common carrier’s right to use any or all tariffs of conferences of which it is a member, for a period not to exceed 12 months.
(b)Operating Under Suspended Tariff.—A common carrier that accepts or handles cargo for carriage under a tariff that has been suspended, or after its right to use that tariff has been suspended, is liable to the United States Government for a civil penalty of not more than $50,000 for each shipment.
(c)Failure To Provide Information.—
(1)Penalties.—If the Commission finds, after notice and opportunity for a hearing, that a common carrier has failed to supply information ordered to be produced or compelled by subpoena under section 41303 of this title, the Commission may—
(A) suspend any or all tariffs of the carrier or the carrier’s right to use any or all tariffs of conferences of which it is a member; and
(B) request the Secretary of Homeland Security to refuse or revoke any clearance required for a vessel operated by the carrier, and when so requested, the Secretary shall refuse or revoke the clearance.
(2)Defense based on foreign law.—If, in defense of its failure to comply with a subpoena or discovery order, a common carrier alleges that information or documents located in a foreign country cannot be produced because of the laws of that country, the Commission shall immediately notify the Secretary of State of the failure to comply and of the allegation relating to foreign laws. On receiving the notification, the Secretary of State shall promptly consult with the government of the nation within which the information or documents are alleged to be located for the purpose of assisting the Commission in obtaining the information or documents.
(d)Impairing Access to Foreign Trade.—If the Commission finds, after notice and opportunity for a hearing, that the action of a common carrier, acting alone or in concert with another person, or a foreign government has unduly impaired access of a vessel documented under the laws of the United States to ocean trade between foreign ports, the Commission shall take action that it finds appropriate, including imposing any of the penalties authorized by this section. The Commission also may take any of the actions authorized by sections 42304 and 42305 of this title.
(e)Submission of Order to President.—Before an order under this section becomes effective, it shall be submitted immediately to the President. The President, within 10 days after receiving it, may disapprove it if the President finds that disapproval is required for reasons of national defense or foreign policy.
(Pub. L. 109–304, § 7, Oct. 6, 2006, 120 Stat. 1543; Pub. L. 117–146, § 15(a), June 16, 2022, 136 Stat. 1279.)
§ 41109. Assessment of penalties
(a)General Authority.—Until a matter is referred to the Attorney General, the Federal Maritime Commission may—
(1) after notice and opportunity for a hearing, in accordance with this part—
(A) assess a civil penalty; or
(B) in addition to, or in lieu of, assessing a civil penalty under subparagraph (A), order a refund of money (including additional amounts in accordance with section 41305(c)), subject to subsection (b)(2); and
(2) compromise, modify, or remit, with or without conditions, a civil penalty or refund imposed under paragraph (1).
(b)Determination of Amount.—
(1)Factors for consideration.—In determining the amount of a civil penalty assessed or refund of money ordered pursuant to subsection (a), the Federal Maritime Commission shall take into consideration—
(A) the nature, circumstances, extent, and gravity of the violation committed;
(B) with respect to the violator—
(i) the degree of culpability;
(ii) any history of prior offenses;
(iii) the ability to pay; and
(iv) such other matters as justice may require; and
(C) the amount of any refund of money ordered pursuant to subsection (a)(1)(B).
(2)Commensurate reduction in civil penalty.—
(A)In general.—In any case in which the Federal Maritime Commission orders a refund of money pursuant to subsection (a)(1)(B) in addition to assessing a civil penalty pursuant to subsection (a)(1)(A), the amount of the civil penalty assessed shall be decreased by any additional amounts included in the refund of money in excess of the actual injury (as defined in section 41305(a)).
(B)Treatment of refunds.—A refund of money ordered pursuant to subsection (a)(1)(B) shall be—
(i) considered to be compensation paid to the applicable claimant; and
(ii) deducted from the total amount of damages awarded to that claimant in a civil action against the violator relating to the applicable violation.
(c)Exception.—A civil penalty or refund of money under subparagraph (A) or (B), respectively, of subsection (a)(1) may not be imposed for conspiracy to violate subsection (a) or (d) of section 41102 or paragraph (1) or (2) of section 41104(a) or to defraud the Commission by concealing such a violation.
(d)Prohibited Basis of Penalty.—The Commission or a court may not order a person to pay the difference between the amount billed and agreed upon in writing with a common carrier or its agent and the amount set forth in a tariff or service contract by that common carrier for the transportation service provided.
(e)Time Limit.—A proceeding to assess a civil penalty or order a refund of money under this section must be commenced within 5 years after the date of the violation.
(f)Review of Civil Penalty.—A person against whom a civil penalty is assessed, or that is ordered to refund money, under this section may obtain review under chapter 158 of title 28.
(g)Civil Actions To Collect.—If a person does not pay an assessment of a civil penalty or a refund required under this section after it has become final or after the appropriate court has entered final judgment in favor of the Commission, the Attorney General at the request of the Commission may seek to collect the amount assessed in an appropriate district court of the United States. The court shall enforce the order of the Commission unless it finds that the order was not regularly made and duly issued.
(Pub. L. 109–304, § 7, Oct. 6, 2006, 120 Stat. 1544; Pub. L. 117–146, §§ 8(a)(2), 15(b), June 16, 2022, 136 Stat. 1276, 1279.)
§ 41110. Data collection
The Federal Maritime Commission shall publish on its website a calendar quarterly report that describes the total import and export tonnage and the total loaded and empty 20-foot equivalent units per vessel (making port in the United States, including any territory or possession of the United States) operated by each ocean common carrier covered under this chapter. Ocean common carriers under this chapter shall provide to the Commission all necessary information, as determined by the Commission, for completion of this report.
(Added Pub. L. 117–146, § 9(a), June 16, 2022, 136 Stat. 1277.)