(S. 414, Senate floor sponsors’ amendment) (Additions are highlighted, deletions struck out) (Unless otherwise noted, all changes are effective May 1, 1999)
The Shipping Act of 1984 as Modified by The Ocean Shipping Reform Act of 1998
as Modified by The Ocean Shipping Reform Act of 1998 (S. 414, Senate floor sponsors’ amendment) (Additions are highlighted, deletions struck out) (Unless otherwise noted, all changes are effective May 1, 1999)
The purposes of this Act are--
(1) to establish a nondiscriminatory regulatory process for the common carriage of goods by water in the foreign commerce of the United States with a minimum of government intervention and regulatory costs;
(2) to provide an efficient and economic transportation
system in the ocean commerce of the United States that is, insofar as possible, in harmony
with, and responsive to, international shipping practices; and
(3) to encourage the development of an economically
sound and efficient United States-flag liner fleet capable of meeting national security
needs; and .
(4) to promote the growth
and development of United States exports through competitive and efficient ocean
transportation and by placing a greater reliance on the marketplace.
As used in this Act--
(1) "agreement" means an understanding, arrangement, or association (written or oral) and any modification or cancellation thereof; but the term does not include a maritime labor agreement.
(2) "antitrust laws" means the Act of July 2, 1890 (ch. 647, 26 Stat. 209), as amended; the Act of October 15, 1914 (ch. 323, 38 Stat. 730), as amended; the Federal Trade Commission Act (38 Stat. 717), as amended; sections 73 and 74 of the Act of August 27, 1894 (28 Stat. 570), as amended; the Act of June 19, 1936 (ch. 592, 49 Stat. 1526), as amended; the Antitrust Civil Process Act (76 Stat. 548), as amended; and amendments and Acts supplementary thereto.
(3) "assessment agreement" means an agreement, whether part of a collective-bargaining agreement or negotiated separately, to the extent that it provides for the funding of collectively bargained fringe benefit obligations on other than a uniform man-hour basis, regardless of the cargo handled or type of vessel or equipment utilized.
(4) "bulk cargo" means cargo that is loaded and carried in bulk without mark or count.
(5) "Commission" means the Federal Maritime Commission.
(6) "common carrier" means a person holding itself out to the general public to provide transportation by water of passengers or cargo between the United States and a foreign country for compensation that--
(A) assumes responsibility for the transportation from the port or point of receipt to the port or point of destination, and
(B) utilizes, for all or part of that transportation, a vessel operating on the high seas or the Great Lakes between a port in the United States and a port in a foreign country, except that the term does not include a common carrier engaged in ocean transportation by ferry boat, ocean tramp, or chemical parcel-tanker. As used in this paragraph, "chemical parcel-tanker" means a vessel whose cargo-carrying capability consists of individual cargo tanks for bulk chemicals that are a permanent part of the vessel, that have segregation capability with piping systems to permit simultaneous carriage of several bulk chemical cargoes with minimum risk of cross-contamination, and that has a valid certificate of fitness under the International Maritime Organization Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk.
(7) "conference" means an association of ocean common carriers permitted, pursuant to an approved or effective agreement, to engage in concerted activity and to utilize a common tariff; but the term does not include a joint service, consortium, pooling, sailing, or transshipment arrangement.
(8) "controlled carrier" means an ocean common
carrier that is, or whose operating assets are, directly or indirectly, owned or
controlled by a government the government
under whose registry the vessels of the carrier operate; ownership or control by
a government shall be deemed to exist with respect to any carrier if--
(A) a majority portion of the interest in the carrier is owned or controlled in any manner by that government, by any agency thereof, or by any public or private person controlled by that government; or
(B) that government has the right to appoint or disapprove the appointment of a majority of the directors, the chief operating officer, or the chief executive officer of the carrier.
(9) "deferred rebate" means a return
by a common carrier of any portion of the freight money to a shipper as a consideration
for that shipper giving all, or any portion, of its shipments to that or any other common
carrier, or for any other purpose, the payment of which is deferred beyond the completion
of the service for which it is paid, and is made only if, during both the period for which
computed and the period of deferment, the shipper has complied with the terms of the
rebate agreement or arrangement. "deferred
rebate" means a return by a common carrier of any portion of freight money to a
shipper as a consideration for that shipper giving all, or any portion, of its shipments
to that or any other common carrier over a fixed period of time, the payment of which is
deferred beyond the completion of service for which it is paid, and is made only if the
shipper has agreed to make a further shipment or shipments with that or any other common
carrier.
(10) "fighting ship" means a vessel
used in a particular trade by an ocean common carrier or group of such carriers for the
purpose of excluding, preventing, or reducing competition, by driving another ocean common
carrier out of that trade.
(10) (11)
"forest products" means forest products in an unfinished or semifinished
state that require special handling moving in lot sizes too large for a container,
including, but not limited to lumber in bundles, rough timber, ties, poles, piling,
laminated beams, bundled siding, bundled plywood, bundled core stock or veneers, bundled
particle or fiber boards, bundled hardwood, wood pulp in rolls, wood pulp in unitized
bales, paper board in rolls, and paper in rolls paper
and paper board in rolls or in pallet or skid-sized sheets.
(11) (12)
"inland division" means the amount paid by a common carrier to an inland carrier
for the inland portion of through transportation offered to the public by the common
carrier.
(12) (13)
"inland portion" means the charge to the public by a common carrier for the
non-ocean portion of through transportation.
(13) (14)
"loyalty contract" means a contract with an ocean common carrier or agreement conference, other than a service contract or
contract based upon time-volume rates, by which a shipper obtains lower rates by
committing all or a fixed portion of its cargo to that carrier or conference
agreement and the contract provides for a deferred rebate
arrangement.
(14) (15)
"marine terminal operator" means a person engaged in the United States in the
business of furnishing wharfage, dock, warehouse, or other terminal facilities in
connection with a common carrier, or in connection with a common
carrier and a water carrier subject to Subchapter II of Chapter 135 of Title 49, United
States Code.
(15) (16)
"maritime labor agreement" means a collective-bargaining agreement between an
employer subject to this Act, or group of such employers, and a labor organization
representing employees in the maritime or stevedoring industry, or an agreement
preparatory to such a collective-bargaining agreement among members of a multi-employer
bargaining group, or an agreement specifically implementing provisions of such a
collective-bargaining agreement or providing for the formation, financing, or
administration of a multiemployer bargaining group; but the term does not include an
assessment agreement.
(17) "non-vessel-operating common
carrier" means a common carrier that does not operate the vessels by which the ocean
transportation is provided, and is a shipper in its relationship with an ocean common
carrier.
(16) (18)
"ocean common carrier" means a vessel-operating common carrier.
(19) " ocean freight forwarder" means
a person in the United States that--
(A)
dispatches shipments from the United States via common carriers and books or otherwise
arranges space for those shipments on behalf of shippers; and
(B)
processes the documentation or performs related activities incident to those shipments.
(17) "ocean transportation intermediary" means an ocean freight forwarder or a non-vessel-operating common carrier. For the purposes of this paragraph, the term
(A) ‘ocean freight forwarder’ means a person that--
(i) in the United States, dispatches shipments from the United States via a common carrier and books or otherwise arranges space for those shipments on behalf of shippers; and
(ii) processes the documentation or performs related activities incident to those shipments; and
(B) ‘non-vessel-operating common carrier’ means a common carrier that does not operate the vessels by which the ocean transportation is provided, and is a shipper in its relationship with an ocean common carrier.
(18) (20)
"person" includes individuals, corporations, partnerships, and associations
existing under or authorized by the laws of the United States or of a foreign country.
(21)"service contract" means a
contract between a shipper and an ocean common carrier or conference in which the shipper
makes a commitment to provide a certain minimum quantity of cargo over a fixed time
period, and the ocean common carrier or conference commits to a certain rate or rate
schedule as well as a defined service level--such as, assured space, transit time, port
rotation, or similar service features; the contract may also specify provisions in the
event of nonperformance on the part of either party.
(19) "service contract" means a written contract, other than a bill of lading or a receipt, between one or more shippers and an individual ocean common carrier or an agreement between or among ocean common carriers in which the shipper or shippers makes a commitment to provide a certain volume or portion of cargo over a fixed time period, and the ocean common carrier or the agreement commits to a certain rate or rate schedule and a defined service level, such as assured space, transit time, port rotation, or similar service features. The contract may also specify provisions in the event of nonperformance on the part of any party."
(20) (22)
"shipment" means all of the cargo carried under the terms of a single bill of
lading.
(21) (23)
"shipper" means an owner or person for whose account the ocean transportation is
provided or the person to whom delivery is to be made. "shipper" means:
(A) a cargo owner;
(B) the person for whose account the ocean transportation is provided;
(C) the person to whom delivery is to be made;
(D) a shippers' association; or
(E) an ocean transportation intermediary, as defined in paragraph (17)(B) of this section, that accepts responsibility for payment of all charges applicable under the tariff or service contract.
(22) (24)
"shippers' association" means a group of shippers that consolidates or
distributes freight on a nonprofit basis for the members of the group in order to secure
carload, truckload, or other volume rates or service contracts.
(23) (25)
"through rate" means the single amount charged by a common carrier in connection
with through transportation.
(24) (26)
"through transportation" means continuous transportation between origin and
destination for which a through rate is assessed and which is offered or performed by one
or more carriers, at least one of which is a common carrier, between a United States point
or port and a foreign point or port.
(25) (27)
"United States" includes the several States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianas, and all other
United States territories and possessions.
(a) Ocean common carriers. This Act applies to agreements by or among ocean common carriers to--
(1) discuss, fix, or regulate transportation rates, including through rates, cargo space accommodations, and other conditions of service;
(2) pool or apportion traffic, revenues, earnings, or losses;
(3) allot ports or restrict or otherwise regulate the number and character of sailings between ports;
(4) limit or regulate the volume or character of cargo or passenger traffic to be carried;
(5) engage in
exclusive, preferential, or cooperative working arrangements among themselves or with one
or more marine terminal operators or non-vessel-operating common carriers;
(6) control,
regulate, or prevent competition in international ocean transportation; and
or
(7) regulate
or prohibit their use of service contracts. discuss and
agree on any matter related to service contracts.
(b) Marine terminal operators. This Act applies to
agreements (to the extent the agreements involve ocean transportation in the
foreign commerce of the United States) among marine terminal operators and among
one or more marine terminal operators and one or more ocean common carriers to--
(1) discuss, fix, or
regulate rates or other conditions of service; and or
(2) engage in exclusive, preferential, or cooperative working arrangements, to the extent that such agreements involve ocean transportation in the foreign commerce of the United States.
(c) Acquisitions. This Act does not apply to an acquisition by any person, directly or indirectly, of any voting security or assets of any other person.
(a) Filing requirements. A true copy of every agreement entered into with respect to an activity described in section 4(a) or (b) of this Act shall be filed with the Commission, except agreements related to transportation to be performed within or between foreign countries and agreements among common carriers to establish, operate, or maintain a marine terminal in the United States. In the case of an oral agreement, a complete memorandum specifying in detail the substance of the agreement shall be filed. The Commission may by regulation prescribe the form and manner in which an agreement shall be filed and the additional information and documents necessary to evaluate the agreement.
(b) Conference agreements. Each conference agreement must--
(1) state its purpose;
(2) provide reasonable and equal terms and conditions for admission and readmission to conference membership for any ocean common carrier willing to serve the particular trade or route;
(3) permit any member to withdraw from conference membership upon reasonable notice without penalty;
(4) at the request of any member, require an independent neutral body to police fully the obligations of the conference and its members;
(5) prohibit the conference from engaging in conduct prohibited by section 10(c)(1) or (3) of this Act;
(6) provide for a consultation process designed to promote--
(A) commercial resolution of disputes, and
(B) cooperation with shippers in preventing and eliminating malpractices;
(7) establish
procedures for promptly and fairly considering shippers' requests and complaints; and
(8) provide
that any member of the conference may take independent action on any rate or service item
required to be filed in a tariff under section 8(a) of this Act upon not more than 10
calendar days' notice to the conference and that the conference will include the new rate
or service item in its tariff for use by that member, effective no later than 10 calendar
days after receipt of the notice, and by any other member that notifies the conference
that it elects to adopt the independent rate or service item on or after its effective
date, in lieu of the existing conference tariff provision for that rate or service item
provide that any member of the conference may take independent
action on any rate or service item upon not more than 5 calendar days' notice to the
conference and that, except for exempt commodities not published in the conference tariff,
the conference will include the new rate or service item in its tariff for use by that
member, effective no later than 5 calendar days after receipt of the notice, and by any
other member that notifies the conference that it elects to adopt the independent rate or
service item on or after its effective date, in lieu of the existing conference tariff
provision for that rate or service item.
(c) Ocean common carrier agreements. An ocean common carrier agreement may not--
(1) prohibit or restrict a member or members of the agreement from engaging in negotiations for service contracts with 1 or more shippers;
(2) require a member or members of the agreement to disclose a negotiation on a service contract, or the terms and conditions of a service contract, other than those terms and conditions required to be published under section 8(c)(3) of this Act; or
(3) adopt mandatory rules or requirements affecting the right of an agreement member or agreement members to negotiate and enter into service contracts.
An agreement may provide authority to adopt voluntary guidelines relating to the terms and procedures of an agreement member’s or agreement members’ service contracts if the guidelines explicitly state the right of the members of the agreement to not follow these guidelines. These agreement guidelines shall be confidentially submitted to the Commission.
(c)(d)
Interconference agreements. Each agreement between carriers not members of the same
conference must provide the right of independent action for each carrier. Each agreement
between conferences must provide the right of independent action for each conference.
(d)(e)
Assessment agreements. Assessment agreements shall be filed with the Commission and become
effective on filing. The Commission shall thereafter, upon complaint filed within 2 years
of the date of the agreement, disapprove, cancel, or modify any such agreement, or charge
or assessment pursuant thereto, that it finds, after notice and hearing, to be unjustly
discriminatory or unfair as between carriers, shippers, or ports. The Commission shall
issue its final decision in any such proceeding within 1 year of the date of filing of the
complaint. To the extent that an assessment or charge is found in the proceeding to be
unjustly discriminatory or unfair as between carriers, shippers, or ports, the Commission
shall remedy the unjust discrimination or unfairness for the period of time between the
filing of the complaint and the final decision by means of assessment adjustments.
These adjustments shall be implemented by prospective credits or debits to future
assessments or charges, except in the case of a complainant who has ceased activities
subject to the assessment or charge, in which case reparation may be awarded. Except
for this subsection and section 7(a) of this Act, this Act, the Shipping Act,
1916, and the Intercoastal Shipping Act, 1933, do this
Act does not apply to assessment agreements.
(e)(f)
Maritime labor agreements. This Act and the Shipping Act, 1916, do does not apply to maritime labor agreements. This subsection
does not exempt from this Act or the Shipping Act, 1916, any rates,
charges, regulations, or practices of a common carrier that are required to be set forth
in a tariff or are essential terms of a service contract,
whether or not those rates, charges, regulations, or practices arise out of, or are
otherwise related to, a maritime labor agreement.
(a) Notice. Within 7 days after an agreement is filed, the Commission shall transmit a notice of its filing to the Federal Register for publication.
(b) Review standard. The Commission shall reject any agreement filed under section 5(a) of this Act that, after preliminary review, it finds does not meet the requirements of section 5. The Commission shall notify in writing the person filing the agreement of the reason for rejection of the agreement.
(c) Review and effective date. Unless rejected by the Commission under subsection (b), agreements, other than assessment agreements, shall become effective--
(1) on the 45th day after filing, or on the 30th day after notice of the filing is published in the Federal Register, whichever day is later; or
(2) if additional information or documentary material is requested under subsection (d), on the 45th day after the Commission receives--
(A) all the additional information and documentary material requested; or
(B) if the request is not fully complied with, the information and documentary material submitted and a statement of the reasons for noncompliance with the request. The period specified in paragraph (2) may be extended only by the United States District Court for the District of Columbia upon an application of the Commission under subsection (i).
(d) Additional information. Before the expiration of the period specified in subsection (c)(1), the Commission may request from the person filing the agreement any additional information and documentary material it deems necessary to make the determinations required by this section.
(e) Request for expedited approval. The Commission may, upon request of the filing party, shorten the review period specified in subsection (c), but in no event to a date less than 14 days after notice of the filing of the agreement is published in the Federal Register.
(f) Term of agreements. The Commission may not limit the effectiveness of an agreement to a fixed term.
(g) Substantially anticompetitive agreements. If, at any time after the filing or effective date of an agreement, the Commission determines that the agreement is likely, by a reduction in competition, to produce an unreasonable reduction in transportation service or an unreasonable increase in transportation cost, it may, after notice to the person filing the agreement, seek appropriate injunctive relief under subsection (h).
(h) Injunctive relief. The Commission may, upon making the determination specified in subsection (g), bring suit in the United States District Court for the District of Columbia to enjoin operation of the agreement. The court may issue a temporary restraining order or preliminary injunction and, upon a showing that the agreement is likely, by a reduction in competition, to produce an unreasonable reduction in transportation service or an unreasonable increase in transportation cost, may enter a permanent injunction. In a suit under this subsection, the burden of proof is on the Commission. The court may not allow a third party to intervene with respect to a claim under this subsection.
(i) Compliance with informational needs. If a person filing an agreement, or an officer, director, partner, agent, or employee thereof, fails substantially to comply with a request for the submission of additional information or documentary material within the period specified in subsection (c), the United States District Court for the District of Columbia, at the request of the Commission--
(1) may order compliance;
(2) shall extend the period specified in subsection (c)(2) until there has been substantial compliance; and
(3) may grant such other equitable relief as the court in its discretion determines necessary or appropriate.
(j) Nondisclosure of submitted material. Except for an agreement filed under section 5 of this Act, information and documentary material filed with the Commission under section 5 or 6 is exempt from disclosure under section 552 of title 5, United States Code and may not be made public except as may be relevant to an administrative or judicial action or proceeding. This section does not prevent disclosure to either body of Congress or to a duly authorized committee or subcommittee of Congress.
(k) Representation. Upon notice to the Attorney General,
the Commission may represent itself in district court proceedings under subsections (h)
and (i) of this section and section 11(h) of this Act. With the approval of the Attorney
General, the Commission may represent itself in proceedings in the United States Courts of
Appeal under subsections (h) and (i) of this section and section 11(h) of this Act.
(a) In general. The antitrust laws do not apply to--
(1) any agreement that has been filed under section 5 of this Act and is effective under section 5(d) or section 6, or is exempt under section 16 of this Act from any requirement of this Act;
(2) any activity or agreement within the scope of this Act, whether permitted under or prohibited by this Act, undertaken or entered into with a reasonable basis to conclude that (A) it is pursuant to an agreement on file with the Commission and in effect when the activity took place, or (B) it is exempt under section 16 of this Act from any filing or publication requirement of this Act;
(3) any agreement or activity that relates to transportation services within or between foreign countries, whether or not via the United States unless that agreement or activity has a direct, substantial, and reasonably foreseeable effect on the commerce of the United States;
(4) any agreement or activity concerning the foreign inland segment of through transportation that is part of transportation provided in a United States import or export trade;
(5) any agreement or activity to provide or furnish wharfage, dock, warehouse, or other terminal facilities outside the United States; or
(6) subject to section 20(e)(2) of this Act, any agreement, modification or cancellation approved by the Commission before the effective date of this Act under section 15 of the Shipping Act, 1916, or permitted under section 14b thereof, and any properly published tariff, rate, fare, or charge, classification, rule, or regulation explanatory thereof implementing that agreement, modification, or cancellation.
(b) Exceptions. This Act does not extend antitrust immunity--
(1) to any agreement with or among any group of air carriers, rail carriers, motor carriers, or common carriers by water no subject to this Act with respect to transportation within the United States;
(2) to any
discussion or agreement among common carriers that are subject to this Act regarding the
inland divisions (as opposed to the inland portions) of through rates within the United
States; or
(3) to any agreement
among common carriers subject to this Act to establish, operate, or maintain a marine
terminal in the United States.; or
(4) to any loyalty contract.
(c) Limitations.
(1) Any determination by an agency or court that results in the denial or removal of the immunity to the antitrust laws set forth in subsection (a) shall not remove or alter the antitrust immunity for the period before the determination.
(2) No person may
recover damages under section 4 of the Clayton Act (15 U.S.C. 15) [15 USCS @ 15], or
obtain injunctive relief under section 16 of that Act (15 U.S.C. 26) [15 USCS @ 26], for
conduct prohibited by this Act.
(a) In general.
(1) Except with
regard to bulk cargo, forest products, recycled metal scrap, new
assembled motor vehicles, waste paper, and paper waste, each common carrier and
conference shall file with the Commission, and keep open to public inspection
inspection, in an automated 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. However, common carriers shall not be required to state separately or
otherwise reveal in tariff filings tariffs
the inland divisions of a through rate. Tariffs shall--
(A) state the places between which cargo will be carried;
(B) list each classification of cargo in use;
(C) state the level of ocean freight forwarder transportation
intermediary, as defined by section 3(17)(A) of this Act, compensation, if any,
by a carrier or conference;
(D) state separately each terminal or other charge, privilege, or facility under the
control of the carrier or conference and any rules or regulations that in any way change,
affect, or determine any part or the aggregate of the rates or charges; and
(E) include sample copies of any loyalty contract, bill of lading, contract of
affreightment, or other document evidencing the transportation agreement.; and
(F) include copies of any loyalty contract, omitting the shipper's name.
(2) Copies
of tariffs shall be made available to any person, and a reasonable charge may be assessed
for them. Tariffs shall be made available electronically
to any person, without time, quantity, or other limitation, through appropriate access
from remote locations, and a reasonable charge may be assessed for such access. No
charge may be assessed a Federal agency for such access.
(b) Time-volume rates. Rates shown in tariffs filed under subsection (a) may vary with the volume of cargo offered over a specified period of time.
(c) Service contracts.
An ocean common carrier or conference may enter into a service contract with a
shipper or shippers' association subject to the requirements of this Act. Except for
service contracts dealing with bulk cargo, forest products, recycled metal scrap, waste
paper, or paper waste, each contract entered into under this subsection shall be filed
confidentially with the Commission, and at the same time, a concise statement of its
essential terms shall be filed with the Commission and made available to the general
public in tariff format, and those essential terms shall be available to all shippers
similarly situated. The essential terms shall include--
(1) the
origin and destination port ranges in the case of port-to-port movements, and the origin
and destination geographic areas in the case of through intermodal movements;
(2) the
commodity or commodities involved;
(3) the
minimum volume;
(4) the
line-haul rate;
(5) the
duration;
(6) service
commitments; and
(7) the
liquidated damages for nonperformance, if any.
The exclusive remedy for a breach of a contract entered into under this
subsection shall be an action in an appropriate court, unless the parties otherwise agree.
(c) Service contracts.
(1) In general. An individual ocean common carrier or an agreement between or among ocean common carriers may enter into a service contract with one or more shippers subject to the requirements of this Act. The exclusive remedy for a breach of a contract entered into under this subsection shall be an action in an appropriate court, unless the parties otherwise agree. In no case may the contract dispute resolution forum be controlled by or in any way affiliated with a controlled carrier as defined in section 3(8) of this Act, or by the government which owns or controls the carrier.
(2) Filing requirements. Except for service contracts dealing with bulk cargo, forest products, recycled metal scrap, new assembled motor vehicles, waste paper, or paper waste, each contract entered into under this subsection by an individual ocean common carrier or an agreement shall be filed confidentially with the Commission. Each service contract shall include the following essential terms--
(A) the origin and destination port ranges;
(B) the origin and destination geographic areas in the case of through intermodal movements;
(C) the commodity or commodities involved;
(D) the minimum volume or portion;
(E) the line-haul rate;
(F) the duration;
(G) service commitments; and
(H) the liquidated damages for nonperformance, if any.
(3) Publication of certain terms. When a service contract is filed confidentially with the Commission, a concise statement of the essential terms described in paragraphs 2(A), (C), (D), and (F) shall be published and made available to the general public in tariff format.
(4) Disclosure of certain terms.
(A) An ocean common carrier, which is a party to or is subject to the provisions of a collective bargaining agreement with a labor organization, shall, in response to a written request by such labor organization, state whether it is responsible for the following work at dock areas and within port areas in the United States with respect to cargo transported under a service contract described in paragraph (1) of this subsection--
(i) the movement of the shipper’s cargo on a dock area or within the port area or to or from railroad cars on a dock area or within the port area;
(ii) the assignment of intraport carriage of the shipper’s cargo between areas on a dock or within the port area;
(iii) the assignment of the carriage of the shipper’s cargo between a container yard on a dock area or within the port area and a rail yard adjacent to such container yard;
(iv) the assignment of container freight station work and maintenance and repair work performed at a dock area or within the port area;
(B) The ocean common carrier shall provide the information described in subparagraph (A) of this paragraph to the requesting labor organization within a reasonable period of time.
(C) This paragraph requires the disclosure of information by an ocean common carrier only if there exists an applicable and otherwise lawful collective bargaining agreement which pertains to that carrier. No disclosure made by an ocean common carrier shall be deemed to be an admission or agreement that any work is covered by a collective bargaining agreement. Any dispute regarding whether any work is covered by a collective bargaining agreement and the responsibility of the ocean common carrier under such agreement shall be resolved solely in accordance with the dispute resolution procedures contained in the collective bargaining agreement and the National Labor Relations Act, and without reference to this paragraph.
(D) Nothing in this paragraph shall have any effect on the lawfullness or unlawfulness under this Act, the National Labor Relations Act, the Taft-Hartley Act, the Federal Trade Commision Act, the antitrust laws, or any other federal or state law, or any revisions or amendments thereto, of any collective-bargaining agreement or element thereof, including any element that constitutes an essential term of a service contract under this subsection.
(E) For purposes of this paragraph the terms "dock area" and "within the port area" shall have the same meaning and scope as in the applicable collective bargaining agreement between the requesting labor organization and the carrier.
(d) Rates Tariff
rates. No new or initial rate or change in an existing rate that results
in an increased cost to the shipper may become effective earlier than 30 days
after filing with the Commission 30 calendar days after
publication. The Commission, for good cause, may allow such a new or
initial rate or charge to become effective in less than 30 calendar
days. A change in an existing rate that results in a decreased cost to the shipper
may become effective upon publication and filing with the Commission.
(e) Refunds. The Commission may, upon application of a carrier or shipper, permit a common carrier or conference to refund a portion of freight charges collected from a shipper or to waive the collection of a portion of the charges from a shipper if--
(1) there is an
error in a tariff of a clerical or administrative nature or an error due to
inadvertence, in failing to file publish a new tariff, or an error in
quoting a tariff, and the refund will not result in discrimination among
shippers, ports, or carriers;
(2) the common
carrier or conference has, prior to filing an application for authority to make a refund,
filed a new tariff with the Commission for an error in a
tariff or a failure to publish a tariff, published a new tariff that sets forth
the rate on which the refund or waiver would be based; and
(3) the
common carrier or conference agrees that if permission is granted by the Commission, an
appropriate notice will be published in the tariff, or such other steps taken as the
Commission may require that give notice of the rate on which the refund or waiver would be
based, and additional refunds or waivers as appropriate shall be made with respect to
other shipments in the manner prescribed by the Commission in its order approving the
application; and
(4)(3)
the application for refund or waiver is filed with the Commission within 180 days from the
date of shipment.
(f) Form. The Commission may by regulation
prescribe the form and manner in which the tariffs required by this section shall be
published and filed. The Commission may reject a tariff that is not filed in conformity
with this section and its regulations. Upon rejection by the Commission, the tariff is
void and its use is unlawful.
(f) Marine terminal operator schedules. A marine terminal operator may make available to the public, subject to section 10(d) of this Act, a schedule of rates, regulations, and practices, including limitations of liability for cargo loss or damage, pertaining to receiving, delivering, handling, or storing property at its marine terminal. Any such schedule made available to the public shall be enforceable by an appropriate court as an implied contract without proof of actual knowledge of its provisions.
(g) Regulations. The Commission
shall by regulation prescribe the requirements for the accessability and accuracy of
automated tariff systems established under this section. The Commission may, after
periodic review, prohibit the use of any automated tariff system that fails to meet the
requirements established under this section. The Commission may not require a common
carrier to provide a remote terminal for access under subsection (a)(2) of this section.
The Commission shall by regulation prescribe the form and manner in which marine terminal
operator schedules authorized by this section shall be published.
(a) Controlled carrier rates. No controlled carrier
subject to this section may maintain rates or charges in its tariffs or service contracts,
or charge or assess rates, filed with the
Commission that are below a level that is just and reasonable, nor may any such
carrier establish, maintain, or enforce or
maintain unjust or unreasonable classifications, rules, or regulations in those
tariffs or service contracts. An unjust or unreasonable classification, rule, or
regulation means one that results or is likely to result in the carriage or handling of
cargo at rates or charges that are below a just and reasonable level. The Commission may,
at any time after notice and hearing, disapprove prohibit
the publication or use of any rates, charges, classifications, rules, or
regulations that the controlled carrier has failed to demonstrate to be just and
reasonable. In a proceeding under this subsection, the burden of proof is on the
controlled carrier to demonstrate that its rates, charges, classifications, rules, or
regulations are just and reasonable. Rates, charges, classifications, rules, or
regulations filed by a controlled carrier that have been rejected, suspended, or
disapproved by the Commission that have been suspended
or prohibited by the Commission are void and their use is unlawful.
(b) Rate standards. For the purpose of this section, in
determining whether rates, charges, classifications, rules, or regulations by a controlled
carrier are just and reasonable, the Commission may take into account appropriate
factors including, but not limited to, whether-- (1)
shall take into account whether the rates or charges which have been filed
published or assessed or which would result from the
pertinent classifications, rules, or regulations are below a level which is fully
compensatory to the controlled carrier based upon that carrier's actual costs or upon its
constructive costs, which are hereby defined as. For the purposes of the preceding sentence, the term "constructive
costs" means the costs of another carrier, other than a controlled
carrier, operating similar vessels and equipment in the same or a similar trade;
similar trade. The Commission may also take into account
other appropriate factors, including, but not limited to, whether--
(2)(1) the rates, charges, classifications, rules, or regulations
are the same as or similar to those filed published
or assessed or assessed by other carriers in the same trade;
(3)(2) the rates, charges, classifications, rules, or regulations
are required to assure movement of particular cargo in the trade; or
(4)(3) the rates, charges, classifications, rules, or regulations
are required to maintain acceptable continuity, level, or quality of common carrier
service to or from affected ports.
(c) Effective date of rates. Notwithstanding section
8(d) of this Act and except for service contracts, the rates, charges, classifications,
rules, or regulations of controlled carriers may not, without special permission of the
Commission, become effective sooner than the 30th day after the date of filing
with the Commission publication. Each
controlled carrier shall, upon the request of the Commission, file, within 20 days of
request (with respect to its existing or proposed rates, charges, classifications, rules,
or regulations), a statement of justification that sufficiently details the controlled
carrier's need and purpose for such rates, charges, classifications, rules, or regulations
upon which the Commission may reasonably base its determination of the lawfulness thereof.
(d) Disapproval of rates Prohibition of rates. Within 120 days of the receipt of information
requested by the Commission under this section, the Commission shall determine whether the
rates, charges, classifications, rules, or regulations of a controlled carrier may be
unjust and unreasonable. Whenever the Commission is of the opinion that
the rates, charges, classifications, rules, or regulations filed published or assessed by a controlled carrier may be unjust and
unreasonable, the Commission may shall
issue an order to the controlled carrier to show cause why those rates, charges,
classifications, rules, or regulations should not be disapproved prohibited. Pending a determination as to their
lawfulness in such a proceeding, the Commission may suspend the rates, charges,
classifications, rules, or regulations at any time before their effective date. In the
case of rates, charges, classifications, rules, or regulations that have already become
effective, the Commission may, upon the issuance of an order to show cause, suspend those
rates, charges, classifications, rules, or regulations on not less than 60
30 days' notice to the controlled carrier. No period
of suspension under this subsection may be greater than 180 days. Whenever the
Commission has suspended any rates, charges, classifications, rules, or regulations under
this subsection, the affected controlled carrier may file
publish new rates, charges, classifications, rules, or
regulations to take effect immediately during the suspension period in lieu of the
suspended rates, charges, classifications, rules, or regulations--except that the
Commission may reject the new rates, charges, classifications, rules, or regulations if it
is of the opinion that they are unjust and unreasonable.
(e) Presidential review. Concurrently with the
publication thereof, the Commission shall transmit to the President each order of
suspension or final order of disapproval prohibition
of rates, charges, classifications, rules, or regulations of a controlled carrier subject
to this section. Within 10 days after the receipt or the effective date of the Commission
order, the President may request the Commission in writing to stay the effect of the
Commission's order if the President finds that the stay is required for reasons of
national defense or foreign policy, which reasons shall be specified in the report.
Notwithstanding any other law, the Commission shall immediately grant the request by the
issuance of an order in which the President's request shall be described. During any such
stay, the President shall, whenever practicable, attempt to resolve the matter in
controversy by negotiation with representatives of the applicable foreign governments.
(f) Exceptions. This section does not apply to--
(1) a controlled carrier of a state whose vessels are entitled by a treaty of the United States to receive national or most-favored-nation treatment; or
(2) a controlled carrier of a state which, on the effective date of this
section [see the Effective date of section note to this section], has subscribed to the
statement of shipping policy contained in note 1 to annex A of the Code of Liberalization
of Current Invisible Operations, adopted by the Organization for Economic Cooperation and
Development;
(3) rates, charges, classifications, rules, or regulations of a controlled
carrier in any particular trade that are covered by an agreement effective under section 6
of this Act, other than an agreement in which all of the members are controlled carriers
not otherwise excluded from the provisions of this subsection;
(4) rates, charges, classifications, rules, or regulations governing the
transportation of cargo by a controlled carrier between the country by whose government it
is owned or controlled, as defined herein and the United States; or
(5)(2) a trade served
exclusively by controlled carriers.
(a) In general. No person may--
(1) knowingly and willfully, directly or indirectly, by means of false billing, false classification, false weighing, false report of weight, false measurement, or by 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 be applicable;
(2) operate under an agreement required to be filed under section 5 of this Act that has not become effective under section 6, or that has been rejected, disapproved, or canceled; or
(3) operate under an agreement required to be filed under section 5 of this Act except in accordance with the terms of the agreement or any modifications made by the Commission to the agreement.
(b) Common carriers. No common carrier, either alone or in conjunction with any other person, directly or indirectly, may--
(1) charge,
demand, collect, or receive greater, less, or different compensation for the
transportation of property or for any service in connection therewith than the rates and
charges that are shown in its tariffs or service contracts;
(2) rebate,
refund, or remit in any manner, or by any device, any portion of its rates except in
accordance with its tariffs or service contracts;
(3) extend
or deny to any person any privilege, concession, equipment, or facility except in
accordance with its tariffs or service contracts;
(4)(1) allow any 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 by any other unjust or unfair device or means;
(2) provide service in the liner trade that--
(A) is not in accordance with the rates, charges, classifications, rules, and practices contained in a tariff published or a service contract entered into under section 8 of this Act unless excepted or exempted under section 8(a)(1) or 16 of this Act; or
(B) is under a tariff or service contract which has been suspended or prohibited by the Commission under section 9 of this Act or the Foreign Shipping Practices Act of 1988 (46 App. U.S.C. 1710a);
(3)(5) retaliate against any shipper by
refusing, or threatening to refuse, cargo space accommodations when available, or resort
to other unfair or unjustly discriminatory methods because the shipper has patronized
another carrier, or has filed a complaint, or for any other reason;
(4)(6) except for service contracts, 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, due regard being had for the proper loading of the vessel and the available tonnage;
(D) the loading and landing of freight; or
(E) the adjustment and settlement of claims;
(5) for service pursuant to a service contract, engage in any unjustly discriminatory practice in the matter of rates or charges with respect to any port;
(6)(7) employ a fighting ship; use a vessel or vessels in a particular trade for the purpose of
excluding, preventing, or reducing competition, by driving another ocean common carrier
out of that trade;
(7)(8) offer or pay any deferred rebates;
(9) use a
loyalty contract, except in conformity with the antitrust laws;
(10) demand,
charge, or collect any rate or charge that is unjustly discriminatory between shippers or
ports;
(11) except
for service contracts, make or give any undue or unreasonable preference or advantage to
any particular person, locality, or description of traffic in any respect whatsoever;
(12) subject
any particular person, locality, or description of traffic to an unreasonable refusal to
deal or any undue or unreasonable prejudice or disadvantage in any respect whatsoever;
(13) refuse
to negotiate with a shippers’ association;
(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;
(11)(14) knowingly and willfully accept cargo
from or transport cargo for the account of a non-vessel-operating common
carrier an ocean transportation intermediary
that does not have a tariff and a bond, insurance, or other surety as required by sections
8 and 23 19 of this Act;
(12)(15) knowingly and willfully enter into a
service contract with a non-vessel-operating common or in which a
non-vessel-operating common carrier is listed as an affiliate an ocean transportation intermediary that does not have a
tariff and a bond, insurance, or other surety as required by sections 8 and 23
19 of this Act, or with an
affiliate of such ocean transportation intermediary; or
(13)(16) 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 that information--
(A) may be used to the detriment or prejudice of the shipper or consignee;
(B) may improperly disclose its business transaction to a competitor; or
(C) may be used to the detriment or prejudice of any common carrier.
Nothing in paragraph 13 16 shall
be construed to prevent providing such information, in response to legal process, to the
United States, the Commission, or 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 Act. Nor shall it be
prohibited for any ocean common carrier that is a party to a conference agreement approved
under this Act, or any receiver, trustee, lessee, agent, or employee of that carrier, or
any other person authorized by that carrier to receive information, to give information to
the conference or any person, firm, corporation, or agency designated by the conference,
or to prevent the conference or its designee from soliciting or receiving information for
the purpose of determining whether a shipper or consignee has breached an agreement with
the conference or its member lines or for the purpose of determining whether a member of
the conference has breached the conference agreement, or for the purpose of compiling
statistics of cargo movement, but the use of such information for any other purpose
prohibited by this Act or any other Act is prohibited.
(c) Concerted action. No conference or group of two or more common carriers may--
(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 (for example, 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 such negotiations and any resulting agreements are not in violation of the antitrust laws and are consistent with the purposes of this Act: Provided, that this paragraph does not prohibit the setting and publishing of a joint through rate by a conference, joint venture, or an association of ocean common carriers;
(5) deny in the
export foreign commerce of the United States compensation to an ocean freight
forwarder transportation intermediary, as defined by
section 3(17)(A) of this Act, or limit that compensation to less than a
reasonable amount; or
(6) 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 otherwise required by the law of the United States or the importing or exporting
country, or as agreed to by a shipper in a service contract.;
(7) 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 persons due to those persons’ status as shippers’ associations or ocean transportation intermediaries; or
(8) 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 persons due to those persons’ status as shippers’ associations or ocean transportation intermediaries;
(d) Common carriers, ocean freight forwarders
transportation intermediaries, and marine terminal
operators.
(1) No common
carrier, ocean freight forwarder transportation
intermediary, or marine terminal operator may fail to establish, observe, and
enforce just and reasonable regulations and practices relating to or connected with
receiving, handling, storing, or delivering property.
(2) No marine terminal operator may agree with another marine terminal operator or with a common carrier to boycott, or unreasonably discriminate in the provision of terminal services to, any common carrier or ocean tramp.
(3) The prohibitions
in subsections (b)(11), (12), and (16) subsections
(b) (10) and (13) of this section apply to marine terminal operators.
(4) No marine terminal operator may give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage with respect to any person.
(5) The prohibition in subsection (b)(13) of this section applies to ocean transportation intermediaries, as defined by section 3(17)(A) of this Act.
(e) Joint ventures. For purposes of this section,
a joint venture or consortium of two or more common carriers but operated as a single
entity shall be treated as a single common carrier.
(a) Filing of complaints. Any person may file with the Commission a sworn complaint alleging a violation of this Act, other than section 6(g), and may seek reparation for any injury caused to the complainant by that violation.
(b) Satisfaction or investigation of complaints. The Commission shall furnish a copy of a complaint filed pursuant to subsection (a) of this section to the person named therein who shall, within a reasonable time specified by the Commission, satisfy the complaint or answer it in writing. If the complaint is not satisfied, the Commission shall investigate it in an appropriate manner and make an appropriate order.
(c) Commission investigations. The Commission, upon complaint or upon its own motion, may investigate any conduct or agreement that it believes may be in violation of this Act. Except in the case of an injunction granted under subsection (h) of this section, each agreement under investigation under this section remains in effect until the Commission issues an order under this subsection. The Commission may by order disapprove, cancel, or modify any agreement filed under section 5(a) of this Act that operates in violation of this Act. With respect to agreements inconsistent with section 6(g) of this Act, the Commission's sole remedy is under section 6(h).
(d) Conduct of investigation. Within 10 days after the initiation of a proceeding under this section, the Commission shall set a date on or before which its final decision will be issued. This date may be extended for good cause by order of the Commission.
(e) Undue delays. If, within the time period specified in subsection (d), the Commission determines that it is unable to issue a final decision because of undue delays caused by a party to the proceedings, the Commission may impose sanctions, including entering a decision adverse to the delaying party.
(f) Reports. The Commission shall make a written report of every investigation made under this Act in which a hearing was held stating its conclusions, decisions, findings of fact, and order. A copy of this report shall be furnished to all parties. The Commission shall publish each report for public information, and the published report shall be competent evidence in all courts of the United States.
(g) Reparations. For any complaint filed
within 3 years after the cause of action accrued, the Commission shall, upon petition of
the complainant and after notice and hearing, direct payment of reparations to the
complainant for actual injury (which, for purposes of this subsection, also includes the
loss of interest at commercial rates compounded from the date of injury) caused by a
violation of this Act plus reasonable attorney's fees. Upon a showing that the
injury was caused by activity that is prohibited by section 10(b)(5) or (7)
10(b)(3) or (6) or section 10(c)(1) or (3) of this
Act, or that violates section 10(a)(2) or (3), the Commission may direct the payment of
additional amounts; but the total recovery of a complainant may not exceed twice the
amount of the actual injury. In the case of injury caused by an activity that is
prohibited by section 10(b)(6)(A) or (B) 10(b)(4)(A)
or (B) of this Act, the amount of the injury shall be the difference between
the rate paid by the injured shipper and the most favorable rate paid by another shipper.
(h) Injunction.
(1) In connection with any investigation conducted under this section, the Commission may bring suit in a district court of the United States to enjoin conduct in violation of this Act. Upon a showing that standards for granting injunctive relief by courts of equity are met and after notice to the defendant, the court may grant a temporary restraining order or preliminary injunction for a period not to exceed 10 days after the Commission has issued an order disposing of the issues under investigation. Any such suit shall be brought in a district in which the defendant resides or transacts business.
(2) After filing a
complaint with the Commission under subsection (a), the complainant may file suit in a
district court of the United States to enjoin conduct in violation of this Act. Upon a
showing that standards for granting injunctive relief by courts of equity are met and
after notice to the defendant, the court may grant a temporary restraining order or
preliminary injunction for a period not to exceed 10 days after the Commission has issued
an order disposing of the complaint. Any such suit shall be brought in the district in
which the defendant has been sued by the Commission under paragraph (1); or, if no suit
has been filed, in a district in which the defendant resides or transacts business. A
defendant that prevails in a suit under this paragraph shall be allowed reasonable
attorney's fees to be assessed and collected as part of the costs of the suit.
(a) Definitions. For purposes of this section--
(1) "common
carrier", "marine terminal operator",
"non-vessel-operating common carrier" "ocean
transportation intermediary", "ocean common carrier",
"person", "shipper", "shippers' association", and
"United States" have the meanings given each such term, respectively, in section
3 of this Act; the Shipping Act of 1984 (46 App. U.S.C. 1702);
(2) "foreign carrier" means an ocean common carrier a majority of whose vessels are documented under the laws of a country other than the United States;
(3) "maritime services" means port-to-port carriage of cargo by the vessels operated by ocean common carriers;
(4)
"maritime-related services" means intermodal operations, terminal operations,
cargo solicitation, forwarding and agency services, non-vessel-operating
common carrier ocean transportation intermediary
services and operations, and all other activities and services integral to
total transportation systems of ocean common carriers and their foreign domiciled
affiliates on their own and others' behalf;
(5) "United States carrier" means an ocean common carrier which operates vessels documented under the laws of the United States; and
(6) "United States oceanborne trade" means the carriage of cargo between the United States and a foreign country, whether direct or indirect, by an ocean common carrier.
(b) Authority to conduct investigations. The Federal Maritime Commission shall investigate whether any laws, rules, regulations, policies, or practices of foreign governments, or any practices of foreign carriers or other persons providing maritime or maritime-related services in a foreign country result in the existence of conditions that--
(1) adversely affect the operations of United States carriers in United States oceanborne trade; and
(2) do not exist for foreign carriers of that country in the United States under the laws of the United States or as a result of acts of United States carriers or other persons providing maritime or maritime-related services in the United States.
(c) Investigations.
(1) Investigations
under subsection (b) of this section may be initiated by the Commission on its own motion
or on the petition of any person, including any common carrier, shipper, shippers'
association, ocean freight forwarder transportation
intermediary, or marine terminal operator, or any branch, department, agency,
or other component of the Government of the United States.
(2) The Commission shall complete any such investigation and render a decision within 120 days after it is initiated, except that the Commission may extend such 120-day period for an additional 90 days if the Commission is unable to obtain sufficient information to determine whether a condition specified in subsection (b) of this section exists. Any notice providing such an extension shall clearly state the reasons for such extension.
(d) Information requests.
(1) In order to
further the purposes of subsection (b) of this section, the Commission may, by order,
require any person (including any common carrier, shipper, shippers' association, ocean freight
forwarder transportation intermediary, or
marine terminal operator, or any officer, receiver, trustee, lessee, agent or employee
thereof) to file with the Commission any periodic or special report, answers to questions,
documentary material, or other information which the Commission considers necessary or
appropriate. The Commission may require that the response to any such order shall be made
under oath. Such response shall be furnished in the form and within the time prescribed by
the Commission.
(2) In an investigation under subsection (b) of this section, the Commission may issue subpoenas to compel the attendance and testimony of witnesses and the production of records or other evidence.
(3) Notwithstanding any other provision of law, the Commission may, in its discretion, determine that any information submitted to it in response to a request under this subsection, or otherwise, shall not be disclosed to the public.
(e) Action against foreign carriers.
(1) Whenever, after notice and opportunity for comment or hearing, the Commission determines that the conditions specified in subsection (b) of this section exist, the Commission shall take such action as it considers necessary and appropriate against any foreign carrier that is a contributing cause to, or whose government is a contributing cause to, such conditions, in order to offset such conditions. Such action may include--
(A) limitations on sailings to and from United States ports or on the amount or type of cargo carried;
(B) suspension, in whole or in part, of any or all tariffs filed with the
Commission and service contracts, including
the right of an ocean common carrier to use any or all tariffs and
service contracts of conferences in United States trades of which it is a
member for such period as the Commission specifies;
(C) suspension, in whole or in part, of the right of an ocean common carrier to operate under any agreement filed with the Commission, including agreements authorizing preferential treatment at terminals, preferential terminal leases, space chartering, or pooling of cargo or revenues with other ocean common carriers; and
(D) a fee, not to exceed $ 1,000,000 per voyage.
(2) The Commission may consult with, seek the cooperation of, or make recommendations to other appropriate Government agencies prior to taking any action under this subsection.
(3) Before a determination under this subsection becomes effective or a request is made under subsection (f) of this section, the determination shall be submitted immediately to the President who may, within 10 days after receiving such determination, disapprove the determination in writing, setting forth the reasons for the disapproval, if the President finds that disapproval is required for reasons of the national defense or the foreign policy of the United States.
(f) Actions upon request of the Commission. Whenever the conditions specified in subsection (b) of this section are found by the Commission to exist, upon the request of the Commission--
(1) the collector of customs at any port or place of destination in the United States shall refuse the clearance required by section 4197 of the Revised Statutes (46 App. U.S.C. 91) to any vessel of a foreign carrier that is identified by the Commission under subsection (e) of this section; and
(2) the Secretary of the department in which the Coast Guard is operating shall deny entry, for purposes of oceanborne trade, of any vessel of a foreign carrier that is identified by the Commission under subsection (e) of this section to any port or place in the United States or the navigable waters of the United States, or shall detain any such vessel at the port or place in the United States from which it is about to depart for any other port or place in the United States.
(g) Report. The Commission shall include in its annual report to Congress--
(1) a list of the twenty foreign countries which generated the largest volume of oceanborne liner cargo for the most recent calendar year in bilateral trade with the United States;
(2) an analysis of conditions described in subsection (b) of this section being investigated or found to exist in foreign countries;
(3) any actions being taken by the Commission to offset such conditions;
(4) any recommendations for additional legislation to offset such conditions; and
(5) a list of petitions filed under subsection (c) of this section that the Commission rejected, and the reasons for each such rejection.
(h) The actions against foreign carriers authorized in
subsections (e) and (f) of this section may be used in the administration and enforcement
of section 13(b)(5)(b)(6) of the
Shipping Act of 1984 (46 U.S.C. App. 1712(b)(5)(b)(6))
or section 19(1)(b) of the Merchant Marine Act, 1920 (46 U.S.C. App. 876).
(i) Any rule, regulation or final order of the
Commission issued under this section shall be reviewable exclusively in the same forum and
in the same manner as provided in section 2342(3)(B) of title 28, United States Code.
(a) In general. In investigations and adjudicatory proceedings under this Act--
(1) depositions, written interrogatories, and discovery procedures may be utilized by any party under rules and regulations issued by the Commission that, to the extent practicable, shall be in conformity with the rules applicable in civil proceedings in the district courts of the United States; and
(2) the Commission may by subpoena compel the attendance of witnesses and the production of books, papers, documents, and other evidence.
(b) Witness fees. Witnesses shall, unless
otherwise prohibited by law, be entitled to the same fees and mileage as in the courts of
the United States.
(a) Assessment of penalty. Whoever violates a provision of this Act, a regulation issued thereunder, or a Commission order is liable to the United States for a civil penalty. The amount of the civil penalty, unless otherwise provided in this Act, may not exceed $ 5,000 for each violation unless the violation was willfully and knowingly committed, in which case the amount of the civil penalty may not exceed $ 25,000 for each violation. Each day of a continuing violation constitutes a separate offense. The amount of any penalty imposed upon a common carrier under this subsection shall constitute a lien upon the vessels operated by that common carrier and any such vessel may be libeled therefor in the district court of the United States for the district in which it may be found.
(b) Additional penalties.
(1) For a violation
of section 10(b)(1),(2),(3),(4), or (8) section
10(b)(1), (2), or (7) of this Act, the 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.
(2) For failure to
supply information ordered to be produced or compelled by subpoena under section 12 of
this Act, the Commission may, after notice and an opportunity for hearing, suspend any or
all tariffs of a common carrier, or that common carrier's right to use any or all tariffs
of conferences of which it is a member.
(3) A common carrier
that accepts or handles cargo for carriage under a tariff that has been suspended or after
its right to utilize that tariff has been suspended is subject to a civil penalty of not
more than $ 50,000 for each shipment.
(4) If the Commission finds, after notice and an opportunity for a hearing, that a common carrier has failed to supply information ordered to be produced or compelled by subpoena under section 12 of this Act, the Commission may request that the Secretary of the Treasury refuse or revoke any clearance required for a vessel operated by that common carrier. Upon request by the Commission, the Secretary of the Treasury shall, with respect to the vessel concerned, refuse or revoke any clearance required by section 4197 of the Revised Statutes of the United States (46 U.S.C. App. 91).
(5) (4) If, in defense of its failure to
comply with a subpena or discovery order, a common carrier alleges that documents or
information 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. Upon receiving the notification,
the Secretary of State shall promptly consult with the government of the nation within
which the documents or information are alleged to be located for the purpose of assisting
the Commission in obtaining the documents or information sought.
(6) (5) If, after notice and hearing, the
Commission finds that the action of a common carrier, acting alone or in concert with any
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 the imposition of any of the penalties
authorized under paragraphs (1), (2), and (3) (3),
and (4) of this subsection.
(7)
(6) Before an order under this subsection becomes effective, it shall be
immediately submitted to the President who may, within 10 days after receiving it,
disapprove the order if the President finds that disapproval is required for reasons of
the national defense or the foreign policy of the United States.
(c) Assessment procedures. Until a matter is referred to the Attorney General, the Commission may, after notice and an opportunity for hearing, assess each civil penalty provided for in this Act. In determining the amount of the penalty, the Commission shall take into account the nature, circumstances, extent, and gravity of the violation committed and, with respect to the violator, the degree of culpability, history of prior offenses, ability to pay, and such other matters as justice may require. The Commission may compromise, modify, or remit, with or without conditions, any civil penalty.
(d) Review of civil penalty. A person against whom a civil penalty is assessed under this section may obtain review thereof under chapter 158 of title 28, United States Code [28 USCS @ 2341 et seq.].
(e) Failure to pay assessment. If a person fails to pay an assessment of a civil penalty 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 recover the amount assessed in an appropriate district court of the United States. In such an action, the court shall enforce the Commission's order unless it finds that the order was not regularly made or duly issued.
(f) Limitations.
(1) No penalty may
be imposed on any person for conspiracy to violate section 10(a)(1), (b)(1), or
(b)(4) or (b)(2) of this Act [46 USCS Appx @
1709(a)(1), (b)(1), (4)(2)], or to
defraud the Commission by concealment of such a violation. Neither
the Commission nor any court shall order any 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 any tariff or service contract by that common carrier for the transportation
service provided.
(2) Each proceeding
to assess a civil penalty under this section shall be commenced within 5 years from the
date the violation occurred.
(a) In general. Orders of the Commission relating to a violation of this Act or a regulation issued thereunder shall be made, upon sworn complaint or on its own motion, only after opportunity for hearing. Each order of the Commission shall continue in force for the period of time specified in the order or until suspended, modified, or set aside by the Commission or a court of competent jurisdiction.
(b) Reversal or suspension of orders. The Commission may reverse, suspend, or modify any order made by it, and upon application of any party to a proceeding may grant a rehearing of the same or any matter determined therein. No rehearing may, except by special order of the Commission, operate as a stay of that order.
(c) Enforcement of nonreparation orders. In case of violation of an order of the Commission, or for failure to comply with a Commission subpena, the Attorney General, at the request of the Commission, or any party injured by the violation, may seek enforcement by a United States district court having jurisdiction over the parties. If, after hearing, the court determines that the order was properly made and duly issued, it shall enforce the order by an appropriate injunction or other process, mandatory or otherwise.
(d) Enforcement of reparation orders.
(1) In case of violation of an order of the Commission for the payment of reparation, the person to whom the award was made may seek enforcement of the order in a United States district court having jurisdiction of the parties.
(2) In a United States district court the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and the petitioner shall not be liable for costs, nor for the costs of any subsequent stage of the proceedings, unless they accrue upon his appeal. A petitioner in a United States district court who prevails shall be allowed reasonable attorney's fees to be assessed and collected as part of the costs of the suit.
(3) All parties in whose favor the Commission has made an award of reparation by a single order may be joined as plaintiffs, and all other parties in the order may be joined as defendants, in a single suit in a district in which any one plaintiff could maintain a suit against any one defendant. Service of process against a defendant not found in that district may be made in a district in which is located any office of, or point of call on a regular route operated by, that defendant. Judgment may be entered in favor of any plaintiff against the defendant liable to that plaintiff.
(e) Statute of limitations. An action seeking
enforcement of a Commission order must be filed within 3 years after the date of the
violation of the order.
(a) Reports. The Commission may
require any common carrier, or any officer, receiver, trustee, lessee, agent, or employee
thereof, to file with it any periodical or special report or any account, record, rate, or
charge, or memorandum of any facts and transactions appertaining to the business of that
common carrier. The report, account, record, rate, charge, or memorandum shall be made
under oath whenever the Commission so requires, and shall be furnished in the form and
within the time prescribed by the Commission. Conference minutes required to be filed with
the Commission under this section shall not be released to third parties or published by
the Commission.
(b) Certification. The Commission shall
require the chief executive officer of each common carrier and, to the extent it deems
feasible, may require any shipper, shippers' association, marine terminal operator, ocean
transportation intermediary, or broker to file a periodic written certification made under
oath with the Commission attesting to--
(1) a policy
prohibiting the payment, solicitation, or receipt of any rebate that is unlawful under the
provisions of this Act;
(2) the fact
that this policy has been promulgated recently to each owner, officer, employee, and agent
thereof;
(3) the
details of the efforts made within the company or otherwise to prevent or correct illegal
rebating; and
(4) a policy
of full cooperation with the Commission in its efforts to end those illegal practices.
Whoever fails to file a certificate required by the Commission under this
subsection is liable to the United States for a civil penalty of not more than $ 5,000 for
each day the violation continues.
The Commission, upon application or on its own motion, may by order or rule
exempt for the future any class of agreements between persons subject to this Act or any
specified activity of those persons from any requirement of this Act if it finds that the
exemption will not result in substantial reduction in competition
or be detrimental to commerce substantially impair effective regulation
by the Commission, be unjustly discriminatory, result in substantial reduction in
competition, or be detrimental to commerce. The Commission may attach conditions
to any exemption and may, by order, revoke any exemption. No order or rule of exemption or
revocation of exemption may be issued unless opportunity for hearing has been afforded
interested persons and departments and agencies of the United States.
(a) The Commission may prescribe rules and regulations as necessary to carry out this Act.
(b) The Commission may prescribe interim rules and
regulations necessary to carry out this Act. For this purpose, the Commission is excepted
from compliance with the notice and comment requirements of section 553 of title 5, United
States Code. All rules and regulations prescribed under the authority of this subsection
that are not earlier superseded by final rules shall expire no later than 270 days after
the date of enactment of this Act.
(a) Collection of data. For a period of 5 years
following the enactment of this Act [enacted Mar. 20, 1984], the Commission shall collect
and analyze information concerning the impact of this Act upon the international ocean
shipping industry, including data on:
(1)
increases or decreases in the level of tariffs;
(2) changes
in the frequency or type of common carrier services available to specific ports or
geographic regions;
(3) the
number and strength of independent carriers in various trades; and
(4) the
length of time, frequency, and cost of major types of regulatory proceedings before the
Commission.
(b) Consultation with other departments and
agencies. The Commission shall consult with the Department of Transportation, the
Department of Justice, and the Federal Trade Commission annually concerning data
collection. The Department of Transportation, the Department of Justice, and the Federal
Trade Commission shall at all times have access to the data collected under this section
to enable them to provide comments concerning data collection.
(c) Agency reports.
(1) Within 6
months after expiration of the 5-year period specified in subsection (a), the Commission
shall report the information, with an analysis of the impact of this Act, to Congress, to
the Advisory Commission on Conferences in Ocean Shipping established in subsection (d),
and to the Department of Transportation, the Department of Justice, and the Federal Trade
Commission.
(2) Within
60 days after the Commission submits its report, the Department of Transportation, the
Department of Justice, and the Federal Trade Commission shall furnish an analysis of the
impact of this Act to Congress and to the Advisory Commission on Conferences in Ocean
Shipping.
(3) The
reports required by this subsection shall specifically address the following topics:
(A) the advisability of adopting a system of tariffs based on volume and mass of
shipment;
(B) the need for antitrust immunity for ports and marine terminals; and
(C) the continuing need for the statutory requirement that tariffs be filed with
and enforced by the Commission.
(d) Establishment and composition of Advisory
Commission.
(1)
Effective 5 ½ years after the date of enactment of this Act [enacted Mar. 20, 1984],
there is established the Advisory Commission on Conferences in Ocean Shipping (hereinafter
referred to as the "Advisory Commission").
(2) The
Advisory Commission shall be composed of 17 members as follows:
(A) a cabinet level official appointed by the President;
(B) 4 members from the United States Senate appointed by the President pro tempore
of the Senate, 2 from the membership of the Committee on Commerce, Science, and
Transportation and 2 from the membership of the Committee on the Judiciary;
(C) 4 members from the United States House of Representatives appointed by the
Speaker of the House, 2 from the membership of the Committee on Merchant Marine and
Fisheries, and 2 from the membership of the Committee on the Judiciary; and
(D) 8 members from the private sector appointed by the President.
(3) The
President shall designate the chairman of the Advisory Commission.
(4) The term
of office for members shall be for the term of the Advisory Commission.
(5) A
vacancy in the Advisory Commission shall not affect its powers, and shall be filled in the
same manner in which the original appointment was made.
(6) Nine
members of the Advisory Commission shall constitute a quorum, but the Advisory Commission
may permit as few as 2 members to hold hearings.
(e) Compensation of members of the Advisory
Commission.
(1)
Officials of the United States Government and Members of Congress who are members of the
Advisory Commission shall serve without compensation in addition to that received for
their services as officials and Members, but they shall be reimbursed for reasonable
travel, subsistence, and other necessary expenses incurred by them in the performance of
the duties vested in the Advisory Commission.
(2) Members
of the Advisory Commission appointed from the private sector shall each receive
compensation not exceeding the maximum per diem rate of pay for grade 18 of the General
Schedule under section 5332 of title 5, United States Code [5 USCS @ 5332], when engaged
in the performance of the duties vested in the Advisory Commission, plus reimbursement for
reasonable travel, subsistence, and other necessary expenses incurred by them in the
performance of those duties, notwithstanding the limitations in sections 5701 through 5733
of title 5, United States Code [5 USCS @@ 5701--5733].
(3) Members
of the Advisory Commission appointed from the private sector are not subject to section
208 of title 18, United States Code [18 USCS @ 208]. Before commencing service, these
members shall file with the Advisory Commission a statement disclosing their financial
interests and business and former relationships involving or relating to ocean
transportation. These statements shall be available for public inspection at the Advisory
Commission's offices.
(f) Advisory Commission functions. The Advisory Commission shall conduct a
comprehensive study of, and make recommendations concerning, conferences in ocean
shipping. The study shall specifically address whether the Nation would be best served by
prohibiting conferences, or by closed or open conferences.
(g) Powers of the Advisory Commission.
(1) The
Advisory Commission may, for the purpose of carrying out its functions, hold such hearings
and sit and act at such times and places, administer such oaths, and require, by subpena
or otherwise, the attendance and testimony of such witnesses, and the production of such
books, records, correspondence, memorandums, papers, and documents as the Advisory
Commission may deem advisable. Subpoenas may be issued to any person within the
jurisdiction of the United States courts, under the signature of the chairman, or any duly
designated member, and may be served by any person designated by the chairman, or that
member. In case of contumacy by, or refusal to obey a subpena to, any person, the Advisory
Commission may advise the Attorney General who shall invoke the aid of any court of the
United States within the jurisdiction of which the Advisory Commission's proceedings are
carried on, or where that person resides or carries on business, in requiring the
attendance and testimony of witnesses and the production of books, papers, and documents;
and the court may issue an order requiring that person to appear before the Advisory
Commission, there to produce records, if so ordered, or to give testimony. A failure to
obey such an order of the court may be punished by the court as a contempt thereof. All
process in any such case may be served in the judicial district whereof the person is an
inhabitant or may be found.
(2) Each
department, agency, and instrumentality of the executive branch of the Government,
including independent agencies, shall furnish to the Advisory Commission, upon request
made by the chairman, such information as the Advisory Commission deems necessary to carry
out its functions.
(3) Upon
request of the chairman, the Department of Justice, the Department of Transportation, the
Federal Maritime Commission, and the Federal Trade Commission shall detail staff personnel
as necessary to assist the Advisory Commission.
(4) The
chairman may rent office space for the Advisory Commission, may utilize the services and
facilities of other Federal agencies with or without reimbursement, may accept voluntary
services notwithstanding section 1342 of title 31, United States Code [31 USCS @ 1342],
may accept, hold, and administer gifts from other Federal agencies, and may enter into
contracts with any public or private person or entity for reports, research, or surveys in
furtherance of the work of the Advisory Commission.
(h) Final report. The Advisory Commission shall,
within 1 year after all of its members have been duly appointed, submit to the President
and to the Congress a final report containing a statement of the findings and conclusions
of the Advisory Commission resulting from the study undertaken under subsection (f),
including recommendations for such administrative, judicial, and legislative action as it
deems advisable. Each recommendation made by the Advisory Commission to the President and
to the Congress must have the majority vote of the Advisory Commission present and voting.
(i) Expiration of the Commission. The Advisory
Commission shall cease to exist 30 days after the submission of its final report.
(j) Authorization of appropriation. There is
authorized to be appropriated $ 500,000 to carry out the activities of the Advisory
Commission.
(a) License. No person may act as an ocean
freight forwarder unless that person holds a license issued by the Commission. The
Commission shall issue a forwarder's license to any person that--
(1) the
Commission determines to be qualified by experience and character to render forwarding
services; and
(2)
furnishes a bond in a form and amount determined by the Commission to insure financial
responsibility that is issued by a surety company found acceptable by the Secretary of the
Treasury.
(a) License. No person in the United States may act as an ocean transportation intermediary unless