---

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 817d, 817e, 1241f, 1273a of this Appendix.

§ 1701. Declaration of policy

The purposes of this chapter 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;

(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.

(Pub. L. 98-237, § 2, Mar. 20, 1984, 98 Stat. 67; Pub. L. 105-258, title I, § 101, Oct. 14, 1998, 112 Stat. 1902.)

REFERENCES IN TEXT

This chapter, referred to in text, was in the original "this Act" meaning Pub. L. 98-237, Mar. 20, 1984, 98 Stat. 67, as amended, known as the Shipping Act of 1984. For complete classification of this Act to the Code, see Short Title note below and Tables.

AMENDMENTS

1998--Par. (4). Pub. L. 105-258 added par. (4).

EFFECTIVE DATE OF 1998 AMENDMENT

Pub. L. 105-258, § 2, Oct. 14, 1998, 112 Stat. 1902, provided that: "Except as otherwise expressly provided in this Act [see Tables for classification], this Act and the amendments made by this Act take effect May 1, 1999."

EFFECTIVE DATE

Section 21 of Pub. L. 98-237, which provided that Pub. L. 98-237 (see Short Title note below) shall become effective 90 days after Mar. 20, 1984, except that sections 1716 and 1717 of this Appendix shall become effective Mar. 20, 1984, was repealed by Pub. L. 101-225, title III, § 307(11), Dec. 12, 1989, 103 Stat. 1925.

SHORT TITLE OF 1998 AMENDMENT

Pub. L. 105-258, § 1, Oct. 14, 1998, 112 Stat. 1902, provided that: "This Act [see Tables for classification] may be cited as the 'Ocean Shipping Reform Act of 1998'."

SHORT TITLE OF 1992 AMENDMENT

Pub. L. 102-251, title II, § 201(a), Mar. 9, 1992, 106 Stat. 60, provided that: "This section [amending sections 1709 and 1721 of this Appendix and enacting provisions set out as notes under sections 1709 and 1721 of this Appendix] may be cited as the 'Non-Vessel-Operating Common Carrier Act of 1991'."

SHORT TITLE OF 1990 AMENDMENT

Pub. L. 101-595, title VII, § 710(a), Nov. 16, 1990, 104 Stat. 2996, provided that: "This section [enacting section 1721 of this Appendix, amending section 1709 of this Appendix, and enacting provisions set out as notes under sections 1709 and 1721 of this Appendix] may be cited as the 'Non-Vessel-Operating Common Carrier Amendments of 1990'."

SHORT TITLE OF 1988 AMENDMENT

Pub. L. 100-418, title X, § 10001, Aug. 23, 1988, 102 Stat. 1570, provided that: "This subtitle [subtitle A (§ 10001-10003) of title X of Pub. L. 100-418, enacting section 1710a of this Appendix, amending section 1122b of this Appendix, and enacting provisions set out as a note under section 3302 of Title 46, Shipping] may be cited as the 'Foreign Shipping Practices Act of 1988'."

SHORT TITLE

Section 1 of Pub. L. 98-237 provided: "That this Act [enacting this chapter, amending sections 801, 812, 814, 815, 816, 817, 819, 820, 821, 824, 828, 829, 830, 831, 841c, 1122, and 1124 of this Appendix, repealing sections 813, 813a, 825, and 841b of this Appendix, enacting provisions set out as notes under this section, and repealing provisions set out as a note under section 801 of this Appendix] may be cited as the 'Shipping Act of 1984'."

§ 1702. Definitions

As used in this chapter--

(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 [15 U.S.C. 1 et seq.]; the Act of October 15, 1914 (ch. 323, 38 Stat. 730), as amended [15 U.S.C. 12 et seq.]; the Federal Trade Commission Act (38 Stat. 717), as amended [15 U.S.C. 41 et seq.]; sections 73 and 74 of the Act of August 27, 1894 (28 Stat. 570), as amended [15 U.S.C. 8 and 9]; the Act of June 19, 1936 (ch. 592, 49 Stat. 1526), as amended [15 U.S.C. 13, 13a, 13b, 21a]; the Antitrust Civil Process Act (76 Stat. 548), as amended [15 U.S.C. 1311 et seq.]; 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 or by vessel when primarily engaged in the carriage of perishable agricultural commodities (i) if the common carrier and the owner of those commodities are wholly-owned, directly or indirectly, by a person primarily engaged in the marketing and distribution of those commodities and (ii) only with respect to the carriage of those commodities. 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; 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 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) "forest products" means forest products 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 and paper board in rolls or in pallet or skid-sized sheets.

(11) "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) "inland portion" means the charge to the public by a common carrier for the nonocean portion of through transportation.

(13) "loyalty contract" means a contract with an ocean common carrier or agreement by which a shipper obtains lower rates by committing all or a fixed portion of its cargo to that carrier or agreement and the contract provides for a deferred rebate arrangement.

(14) "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.

(15) "maritime labor agreement" means a collective-bargaining agreement between an employer subject to this chapter, 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 multiemployer 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.

(16) "ocean common carrier" means a vessel-operating common carrier.

(17) "ocean transportation intermediary" means an ocean freight forwarder or a non-vessel-operating common carrier. For 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) "person" includes individuals, corporations, partnerships, and associations existing under or authorized by the laws of the United States or of a foreign country.

(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) "shipment" means all of the cargo carried under the terms of a single bill of lading.

(21) "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) "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) "through rate" means the single amount charged by a common carrier in connection with through transportation.

(24) "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) "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.

(Pub. L. 98-237, § 3, Mar. 20, 1984, 98 Stat. 67; Pub. L. 99-307, § 11, May 19, 1986, 100 Stat. 447; Pub. L. 105-258, title I, § 102, Oct. 14, 1998, 112 Stat. 1902; Pub. L. 105-383, title IV, § 424(d), Nov. 13, 1998, 112 Stat. 3441.)

REFERENCES IN TEXT

Act of July 2, 1890 (ch. 647, 26 Stat. 209), as amended, referred to in par. (2), is known as the Sherman Act, which is classified to sections 1 to 7 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 1 of Title 15 and Tables.

Act of October 15, 1914 (ch. 323, 38 Stat. 730), as amended, referred to in par. (2), is known as the Clayton Act, which is classified generally to sections 12, 13, 14 to 19, 20, 21, and 22 to 27 of Title 15 and sections 52 and 53 of Title 29, Labor. For further details and complete classification of this Act to the Code, see References in Text note set out under section 12 of Title 15 and Tables.

The Federal Trade Commission Act, referred to in par. (2), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, as amended, which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of Title 15. For complete classification of this Act to the Code, see section 58 of Title 15 and Tables.

Sections 73 and 74 of the Act of August 27, 1894, referred to in par. (2), are sections 73 and 74 of act Aug. 27, 1894, ch. 349, 28 Stat. 570. Sections 73 to 77 of such Act are known as the Wilson Tariff Act. Sections 73 to 76 enacted sections 8 to 11 of Title 15. Section 77 was not classified to the Code. For complete classification of this Act to the Code, see Short Title note under section 8 of Title 15 and Tables.

Act of June 19, 1936 (ch. 592, 49 Stat. 1526), as amended, referred to in par. (2), is popularly known as the Robinson-Patman Antidiscrimination Act and also as the Robinson-Patman Price Discrimination Act, which enacted sections 13a, 13b, and 21a of Title 15 and amended section 13 of Title 15. For complete classification of this Act to the Code, see Short Title note set out under section 13 of Title 15 and Tables.

The Antitrust Civil Process Act, referred to in par. (2), is Pub. L. 87-664, Sept. 19, 1962, 76 Stat. 548, as amended, which is classified generally to chapter 34 (§ 1311 et seq.) of Title 15. For complete classification of this Act to the Code, see Short Title note set out under section 1311 of Title 15 and Tables.

AMENDMENTS

1998--Par. (6)(B). Pub. L. 105-383, in first sentence, substituted "parcel-tanker or by vessel when primarily engaged in the carriage of perishable agricultural commodities (i) if the common carrier and the owner of those commodities are wholly-owned, directly or indirectly, by a person primarily engaged in the marketing and distribution of those commodities and (ii) only with respect to the carriage of those commodities." for "parcel-tanker."

Par. (8). Pub. L. 105-258, § 102(1), substituted "a government;" for "the government under whose registry the vessels of the carrier operate;" in introductory provisions.

Par. (9). Pub. L. 105-258, § 102(2), added par. (9) and struck out former par. (9) which read as follows: " '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."

Par. (10). Pub. L. 105-258, § 102(5), substituted "paper and paper board in rolls or in pallet or skid-sized sheets." for "paper board in rolls, and paper in rolls."

Pub. L. 105-258, § 102(4), struck out "in an unfinished or semifinished state that require special handling moving in lot sizes too large for a container," after "means forest products".

Pub. L. 105-258, § 102(3), redesignated par. (11) as (10) and struck out former par. (10) which read as follows: " '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."

Pars. (11), (12). Pub. L. 105-258, § 102(3), redesignated pars. (12) and (13) as (11) and (12), respectively. Former par. (11) redesignated (10).

Par. (13). Pub. L. 105-258, § 102(7), substituted "agreement and the contract provides for a deferred rebate arrangement." for "conference."

Pub. L. 105-258, § 102(6), substituted "agreement" for "conference, other than a service contract or contract based upon time-volume rates,".

Pub. L. 105-258, § 102(3), redesignated par. (14) as (13). Former par. (13) redesignated (12).

Par. (14). Pub. L. 105-258, § 102(3), (8), redesignated par. (15) as (14) and substituted "carrier, or in connection with a common carrier and a water carrier subject to subchapter II of chapter 135 of title 49." for "carrier." Former par. (14) redesignated (13).

Par. (15). Pub. L. 105-258, § 102(3), redesignated former par. (16) as (15). Former par. (15) redesignated (14).

Par. (16). Pub. L. 105-258, § 102(9), redesignated par. (17) as (16) and struck out former par. (16) which read as follows: " '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."

Pub. L. 105-258, § 102(3), redesignated par. (17) as (16). Former par. (16) redesignated (15).

Par. (17). Pub. L. 105-258, § 102(10), added par. (17) and struck out former par. (17) which read as follows: " '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."

Pub. L. 105-258, § 102(9), redesignated par. (18) as (17). Former par. (17) redesignated (16).

Pub. L. 105-258, § 102(3), redesignated par. (18) as (17). Former par. (17) redesignated (16).

Par. (18). Pub. L. 105-258, § 102(9), redesignated par. (19) as (18). Former par. (18) redesignated (17).

Pub. L. 105-258, § 102(3), redesignated par. (19) as (18). Former par. (18) redesignated (17).

Par. (19). Pub. L. 105-258, § 102(11), added par. (19) and struck out former par. (19) which read as follows: " '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."

Pub. L. 105-258, § 102(9), redesignated par. (20) as (19). Former par. (19) redesignated (18).

Pub. L. 105-258, § 102(3), redesignated par. (20) as (19). Former par. (19) redesignated (18).

Par. (20). Pub. L. 105-258, § 102(9), redesignated par. (21) as (20). Former par. (20) redesignated (19).

Pub. L. 105-258, § 102(3), redesignated par. (21) as (20). Former par. (20) redesignated (19).

Par. (21). Pub. L. 105-258, § 102(12), added par. (21) and struck out former par. (21) which read as follows: " 'shipper' means an owner or person for whose account the ocean transportation of cargo is provided or the person to whom delivery is to be made."

Pub. L. 105-258, § 102(9), redesignated par. (22) as (21). Former par. (21) redesignated (20).

Pub. L. 105-258, § 102(3), redesignated par. (22) as (21). Former par. (21) redesignated (20).

Pars. (22) to (27). Pub. L. 105-258, § 102(3), (9), redesignated pars. (24) to (27) as (22) to (25), respectively. Former pars. (22) and (23) redesignated (20) and (21), respectively.

1986--Par. (6)(B). Pub. L. 99-307, § 11(1), inserted provision that "common carrier" not include common carrier engaged in ocean transportation by ferry boat, ocean tramp, or chemical parcel-tanker, and defined "chemical parcel-tanker".

Par. (18). Pub. L. 99-307, § 11(2), struck out "; but the term does not include one engaged in ocean transportation by ferry boat or ocean tramp" after "common carrier".

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1241s, 1707, 1709, 1710a, 1718, 1807 of this Appendix; title 19 section 1641; title 41 section 431; title 49 section 5901.

§ 1703. Agreements within scope of chapter

(a) Ocean common carriers

This chapter 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;

(6) control, regulate, or prevent competition in international ocean transportation; or

(7) discuss and agree on any matter related to service contracts.

(b) Marine terminal operators

This chapter applies to agreements 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; 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 chapter does not apply to an acquisition by any person, directly or indirectly, of any voting security or assets of any other person.

(Pub. L. 98-237, § 4, Mar. 20, 1984, 98 Stat. 70; Pub. L. 105-258, title I, § 103, Oct. 14, 1998, 112 Stat. 1904.)

AMENDMENTS

1998--Subsec. (a)(5). Pub. L. 105-258, § 103(a)(1), substituted "operators;" for "operators or non-vessel-operating common carriers;".

Subsec. (a)(6). Pub. L. 105-258, § 103(a)(2), substituted "or" for "and" at end.

Subsec. (a)(7). Pub. L. 105-258, § 103(a)(3), added par. (7) and struck out former par. (7) which read as follows: "regulate or prohibit their use of service contracts."

Subsec. (b). Pub. L. 105-258, § 103(b)(1), struck out "(to the extent the agreements involve ocean transportation in the foreign commerce of the United States)" after "agreements" in introductory provisions.

Subsec. (b)(1). Pub. L. 105-258, § 103(b)(2), substituted "or" for "and" at end.

Subsec. (b)(2). Pub. L. 105-258, § 103(b)(3), substituted "arrangements, to the extent that such agreements involve ocean transportation in the foreign commerce of the United States." for "arrangements."

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1704 of this Appendix.

§ 1704. Agreements

(a) Filing requirements

A true copy of every agreement entered into with respect to an activity described in section 1703(a) or (b) of this Appendix 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 1709(c)(1) or (3) of this Appendix;

(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 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 or conditions required to be published under section 1707(c)(3) of this Appendix; 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 members of the agreement not to follow the guidelines. These guidelines shall be confidentially submitted to the Commission.

(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.

(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 1706(a) of this Appendix, this chapter does not apply to assessment agreements.

(f) Maritime labor agreements

This chapter does not apply to maritime labor agreements. This subsection does not exempt from this chapter 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.

(g) Vessel sharing agreements

An ocean common carrier that is the owner, operator, or bareboat, time, or slot charterer of a United States-flag liner vessel documented pursuant to sections ¹ 12102(a) or (d) of title 46 is authorized to agree with an ocean common carrier that is not the owner, operator or bareboat charterer for at least 1 year of United States-flag liner vessels which are eligible to be included in the Maritime Security Fleet Program and are enrolled in an Emergency Preparedness Program pursuant to subtitle B of title VI of the Merchant Marine Act, 1936 (46 U.S.C. App. 1187 et seq.), to which it charters or subcharters the United States-flag vessel or space on the United States-flag vessel that such charterer or subcharterer may not use or make available space on the vessel for the carriage of cargo reserved by law for United States-flag vessels.
__________
¹ So in original. Probably should be "section".

(Pub. L. 98-237, § 5, Mar. 20, 1984, 98 Stat. 70; Pub. L. 98-595, § 3(b)(1), Oct. 30, 1984, 98 Stat. 3132; Pub. L. 104-88, title III, § 335(c)(2), Dec. 29, 1995, 109 Stat. 954; Pub. L. 105-258, title I, § 104, Oct. 14, 1998, 112 Stat. 1904; Pub. L. 105-383, title IV, § 424(a), Nov. 13, 1998, 112 Stat. 3440.)

REFERENCES IN TEXT

The Merchant Marine Act, 1936, referred to in subsec. (g), is act June 29, 1936, ch. 858, 49 Stat. 1985, as amended. Subtitle B of title VI of the Act is classified generally to part B (§ 1187 et seq.) of subchapter VI of chapter 27 of this Appendix. For complete classification of this Act to the Code, see section 1245 of this Appendix and Tables.

AMENDMENTS

1998--Subsec. (b)(8). Pub. L. 105-258, § 104(a)(1), added par. (8) and struck out former par. (8) which read as follows: "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 1707(a) of this Appendix 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."

Subsec. (c). Pub. L. 105-258, § 104(a)(2), (3), added subsec. (c) and redesignated former subsec. (c) as (d).

Subsec. (d). Pub. L. 105-258, § 104(a)(2), redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 105-258, § 104(a)(2), (b)(1), redesignated former subsec. (d) as (e) and substituted "this chapter does" for "this chapter, the Shipping Act, 1916, and the Intercoastal Shipping Act, 1933, do". Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 105-258, § 104(b)(2)(C), inserted "or are essential terms of a service contract" after "tariff".

Pub. L. 105-258, § 104(b)(2)(B), which directed amendment of subsec. (f) by striking out "or the Shipping Act, 1916," was executed by striking out "or the Shipping Act, 1916" before "any rates, charges", to reflect the probable intent of Congress.

Pub. L. 105-258, § 104(b)(2)(A), which directed amendment of subsec. (f) by substituting "does" for "and the Shipping Act, 1916, do", was executed by making the substitution for "and the Shipping Act, 1916 do" after "This chapter", to reflect the probable intent of Congress.

Pub. L. 105-258, § 104(a)(2), redesignated subsec. (e) as (f).

Subsec. (g). Pub. L. 105-383 added subsec. (g).

1995--Subsec. (e). Pub. L. 104-88 substituted "This chapter and the Shipping Act 1916" for "This chapter, the Shipping Act, 1916 [46 App. U.S.C. 801 et seq.], and the Intercoastal Shipping Act, 1933," and "this chapter or the Shipping Act, 1916" for "this chapter, the Shipping Act, 1916, or the Intercoastal Shipping Act, 1933,".

1984--Subsec. (a). Pub. L. 98-595 substituted "section 1703(a) or (b) of this Appendix" for "section 1703 of this Appendix".

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

EFFECTIVE DATE OF 1995 AMENDMENT

Amendment by Pub. L. 104-88 effective Jan. 1, 1996, see section 2 of Pub. L. 104-88, set out as an Effective Date note under section 701 of Title 49, Transportation.

AUTHORITY OR EFFECTIVENESS OF ORDERS

Pub. L. 105-383, title IV, § 424(c), Nov. 13, 1998, 112 Stat. 3441, provided that: "Nothing in this section [amending this section and sections 1702 and 1709 of this Appendix] shall affect or in any way diminish the authority or effectiveness of orders issued by the Maritime Administration pursuant to sections 9 and 41 of the Shipping Act, 1916 (46 U.S.C. App. 808 and 839)."

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1705, 1706, 1709, 1710 of this Appendix.

§ 1705. Action on agreements

(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 1704(a) of this Appendix that, after preliminary review, it finds does not meet the requirements of section 1704 of this Appendix. 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) of this section, 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) of this section, 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) of this section.

(d) Additional information

Before the expiration of the period specified in subsection (c)(1) of this section, 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) of this section, 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) of this section.

(h) Injunctive relief

The Commission may, upon making the determination specified in subsection (g) of this section, 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) of this section, 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) of this section 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 1704 of this Appendix, information and documentary material filed with the Commission under section 1704 of this Appendix or this section is exempt from disclosure under section 552 of title 5 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 1710(h) of this Appendix. 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 1710(h) of this Appendix.

(Pub. L. 98-237, § 6, Mar. 20, 1984, 98 Stat. 72.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1706, 1709, 1710 of this Appendix.

§ 1706. Exemption from antitrust laws

(a) In general

The antitrust laws do not apply to--

(1) any agreement that has been filed under section 1704 of this Appendix and is effective under section 1704(d) ¹ or section 1705 of this Appendix or is exempt under section 1715 of this Appendix from any requirement of this chapter;
__________
¹ See References in Text note below.

(2) any activity or agreement within the scope of this chapter, whether permitted under or prohibited by this chapter, 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 1715 of this Appendix from any filing or publication requirement of this chapter;

(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 1719(e)(2) of this Appendix, any agreement, modification, or cancellation approved by the Commission before the effective date of this chapter under section 15 ¹ of the Shipping Act, 1916, or permitted under section 14b ¹ thereof, and any properly published tariff, rate, fare, or charge, classification, rule, or regulation explanatory thereof implementing that argeement,² modification, or cancellation.
__________
² So in original. Probably should be "agreement,".

(b) Exceptions

This chapter does not extend antitrust immunity--

(1) to any agreement with or among air carriers, rail carriers, motor carriers, or common carriers by water not subject to this chapter with respect to transportation within the United States;

(2) to any discussion or agreement among common carriers that are subject to this chapter regarding the inland divisions (as opposed to the inland portions) of through rates within the United States;

(3) to any agreement among common carriers subject to this chapter 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) of this section 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), or obtain injunctive relief under section 16 of that Act (15 U.S.C. 26), for conduct prohibited by this chapter.

(Pub. L. 98-237, § 7, Mar. 20, 1984, 98 Stat. 73; Pub. L. 105-258, title I, § 105, Oct. 14, 1998, 112 Stat. 1905.)

REFERENCES IN TEXT

Section 1704(d) of this Appendix, referred to in subsec. (a)(1), was redesignated section 1704(e) of this Appendix by Pub. L. 105-258, title I, § 104(a)(2), Oct. 14, 1998, 112 Stat. 1904.

For the effective date of this chapter, referred to in subsec. (a)(6), as 90 days after Mar. 20, 1984, see section 21 of Pub. L. 98-237, formerly set out as an Effective Date note under section 1701 of this Appendix.

Section 15 of the Shipping Act, 1916, referred to in subsec. (a)(6), which was classified to section 814 of this Appendix, was repealed by Pub. L. 104-88, title III, § 335(b)(3), Dec. 29, 1996, 109 Stat. 954.

Section 14b of the Shipping Act, 1916, referred to in subsec. (a)(6), which was classified to section 813a of former Title 46, Shipping, was repealed by Pub. L. 98-237, § 20(a), Mar. 20, 1984, 98 Stat. 88.

AMENDMENTS

1998--Subsec. (a)(2). Pub. L. 105-258, § 105(1), inserted "or publication" after "filing".

Subsec. (b)(4). Pub. L. 105-258, § 105(2)-(4), added par. (4).

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1704 of this Appendix.

§ 1707. Tariffs

(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 keep open to public 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 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 transportation intermediary, as defined in section 1702(17)(A) of this Appendix, 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;

(E) include sample copies of any 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) 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) of this section may vary with the volume of cargo offered over a specified period of time.

(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 chapter. 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 1702(8) of this Appendix, 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),¹ (C), (D), and (F) shall be published and made available to the general public in tariff format.
__________
¹ So in original. Probably should be "(2)(A),".

(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 transportation 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; and

(iv) the assignment of container freight station work and container maintenance and repair work performed at a dock area or within the port area.

(B) The 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 [29 U.S.C. 151 et seq.], and without reference to this paragraph.

(D) Nothing in this paragraph shall have any effect on the lawfulness or unlawfulness under this chapter, the National Labor Relations Act [29 U.S.C. 151 et seq.], the Taft-Hartley Act [29 U.S.C. 141 et seq.], the Federal Trade Commission Act [15 U.S.C. 41 et seq.], 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) 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 calendar days after publication. The Commission, for good cause, may allow such a new or initial rate or change 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.

(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,² in failing to 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 So in original.

(2) the common carrier or conference has, prior to filing an application for authority to make a refund 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 application for refund or waiver is filed with the Commission within 180 days from the date of shipment.

(f) Marine terminal operator schedules

A marine terminal operator may make available to the public, subject to section 1709(d) of this Appendix, 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 accessibility 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.

(Pub. L. 98-237, § 8, Mar. 20, 1984, 98 Stat. 74; Pub. L. 105-258, title I, § 106, Oct. 14, 1998, 112 Stat. 1905.)

REFERENCES IN TEXT

The National Labor Relations Act, referred to in subsec. (c)(4)(C), (D), is act July 5, 1935, ch. 372, 49 Stat. 449, as amended, which is classified generally to subchapter II (§ 151 et seq.) of chapter 7 of Title 29, Labor. For complete classification of this Act to the Code, see section 167 of Title 29 and Tables.

The Taft-Hartley Act, also known as the Labor Management Relations Act, 1947, referred to in subsec. (c)(4)(D), is act June 23, 1947, ch. 120, 61 Stat. 136, as amended, which is classified principally to chapter 7 (§ 141 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 141 of Title 29 and Tables.

The Federal Trade Commission Act, referred to in subsec. (c)(4)(D), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, as amended, which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 58 of Title 15 and Tables.

AMENDMENTS

1998--Subsec. (a)(1). Pub. L. 105-258, § 106(a)(1)-(4), in introductory provisions, in first sentence, inserted "new assembled motor vehicles," after "scrap,", struck out "file with the Commission, and" after "conference shall", and substituted "inspection in an automated tariff system," for "inspection,", and in second sentence, substituted "tariffs" for "tariff filings".

Subsec. (a)(1)(C). Pub. L. 105-258, § 106(a)(5), substituted "transportation intermediary, as defined in section 1702(17)(A) of this Appendix," for "freight forwarder".

Subsec. (a)(1)(E). Pub. L. 105-258, § 106(a)(7), struck out "loyalty contract," before "bill of lading".

Subsec. (a)(1)(F). Pub. L. 105-258, § 106(a)(6), (8), (9), added subpar. (F).

Subsec. (a)(2). Pub. L. 105-258, § 106(a)(10), added par. (2) and struck out former par. (2) which read as follows: "Copies of tariffs shall be made available to any person, and a reasonable charge may be assessed for them."

Subsec. (c). Pub. L. 105-258, § 106(b), amended heading and text of subsec. (c) generally. Prior to amendment, text read as follows: "An ocean common carrier or conference may enter into a service contract with a shipper or shippers' association subject to the requirements of this chapter. 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."

Subsec. (d). Pub. L. 105-258, § 106(c), substituted "Tariff rates" for "Rates" in heading and substituted "30 calendar days after publication." for "30 days after filing with the Commission." in first sentence, inserted "calendar" after "30" in second sentence, and substituted "publication." for "publication and filing with the Commission." in last sentence.

Subsec. (e)(1). Pub. L. 105-258, § 106(d)(2), which directed amendment of par. (1) by substituting "publish a new tariff, or an error in quoting a tariff," for "file a new tariff," was executed by making the substitution for "file a new tariff" after "in failing to", to reflect the probable intent of Congress.

Pub. L. 105-258, § 106(d)(1), substituted "error in a," for "error in a tariff of a clerical or administrative nature or an error due to inadvertence".

Subsec. (e)(2). Pub. L. 105-258, § 106(d)(3), (4), substituted "refund for an error in a tariff or a failure to publish a tariff, published a new tariff" for "refund, filed a new tariff with the Commission" and inserted "and" at end.

Subsec. (e)(3), (4). Pub. L. 105-258, § 106(d)(5), redesignated par. (4) as (3) and struck out former par. (3) which read as follows: "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".

Subsec. (f). Pub. L. 105-258, § 106(e), amended heading and text of subsec. (f) generally. Prior to amendment, text read as follows: "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."

Subsec. (g). Pub. L. 105-258, § 106(f), added subsec. (g).

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1704, 1708, 1709, 1719 of this Appendix.

§ 1708. Controlled carriers

(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, that are below a level that is just and reasonable, nor may any such carrier establish ¹ maintain, or enforce 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, 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 that have been suspended or prohibited by the Commission are void and their use is unlawful.
__________
¹ So in original. Probably should be followed by a comma.

(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 shall take into account whether the rates or charges which have been 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. For 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. The Commission may also take into account other appropriate factors, including but not limited to, whether--

(1) the rates, charges, classifications, rules, or regulations are the same as or similar to those published or assessed or assessed ² by other carriers in the same trade;
__________
² So in original.

(2) the rates, charges, classifications, rules, or regulations are required to assure movement of particular cargo in the trade; or

(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 1707(d) of this Appendix 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 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) Prohibition of rates

Within 120 days after 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 published or assessed by a controlled carrier may be unjust and unreasonable, the Commission shall issue an order to the controlled carrier to show cause why those rates, charges, classifications, rules, or regulations should not be 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 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 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 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 trade served exclusively by controlled carriers.

(Pub. L. 98-237, § 9, Mar. 20, 1984, 98 Stat. 76; Pub. L. 102-100, § 5, Aug. 17, 1991, 105 Stat. 492; Pub. L. 105-258, title I, § 108, Oct. 14, 1998, 112 Stat. 1908.)

AMENDMENTS

1998--Subsec. (a). Pub. L. 105-258, § 108(1)-(4), substituted "service contracts, or charge or assess rates," for "service contracts filed with the Commission" and "maintain, or enforce" for "or maintain" in first sentence, "prohibit the publication or use of" for "disapprove" in third sentence, and "that have been suspended or prohibited by the Commission" for "filed by a controlled carrier that have been rejected, suspended, or disapproved by the Commission" in last sentence.

Subsec. (b). Pub. L. 105-258, § 108(5), substituted "shall take into account whether the rates or charges which have been 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. For 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. The Commission may also take into account other appropriate factors, including but not limited to, whether--" for "may take into account appropriate factors including, but not limited to, whether--" in introductory provisions.

Subsec. (b)(1). Pub. L. 105-258, § 108(6), (7), redesignated par. (2) as (1), substituted "published or assessed" for "filed", and struck out former par. (1) which read as follows: "the rates or charges which have been filed 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 the costs of another carrier, other than a controlled carrier, operating similar vessels and equipment in the same or a similar trade;".

Subsec. (b)(2) to (4). Pub. L. 105-258, § 108(6), redesignated pars. (2) to (4) as (1) to (3), respectively.

Subsec. (c). Pub. L. 105-258, § 108(8), substituted "publication." for "filing with the Commission." in first sentence.

Subsec. (d). Pub. L. 105-258, § 108(9)-(15), substituted "Prohibition" for "Disapproval" in heading, inserted first sentence to read as follows: "Within 120 days after 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.", substituted "published or assessed" for "filed", "shall issue" for "may issue", and "prohibited." for "disapproved." in second sentence, substituted "30" for "60" in fourth sentence, and in last sentence inserted "controlled" after "affected" and substituted "publish" for "file".

Subsec. (e). Pub. L. 105-258, § 108(16), substituted "prohibition" for "disapproval" in first sentence.

Subsec. (f)(1). Pub. L. 105-258, § 108(17), inserted "or" at end.

Subsec. (f)(2) to (5). Pub. L. 105-258, § 108(18), (19), redesignated par. (5) as (2) and struck out former pars. (2) to (4) which read as follows:

"(2) a controlled carrier of a state which, on the effective date of 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 Council of 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 1705 of this Appendix, 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".

1991--Subsec. (a). Pub. L. 102-100, § 5(a), inserted "or service contracts" after "tariffs" in two places.

Subsec. (c). Pub. L. 102-100, § 5(b), inserted "and except for service contracts" after "Notwithstanding section 1707(d) of this Appendix".

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1709 of this Appendix.

§ 1709. Prohibited acts

(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 1704 of this Appendix that has not become effective under section 1705 of this Appendix, or that has been rejected, disapproved, or canceled; or

(3) operate under an agreement required to be filed under section 1704 of this Appendix 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) 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 1707 of this Appendix unless excepted or exempted under section 1707(a)(1) or 1715 of this Appendix; or

(B) is under a tariff or service contract which has been suspended or prohibited by the Commission under section 1708 of this Appendix or the Foreign Shipping Practices Act of 1988 (46 U.S.C. App. 1710a);

(3) 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) 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 unfair or unjustly discriminatory practice in the matter of rates or charges with respect to any port;

(6) 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) 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;

(11) knowingly and willfully accept cargo from or transport cargo for the account of an ocean transportation intermediary that does not have a tariff and a bond, insurance, or other surety as required by sections 1707 and 1718 of this Appendix;

(12) knowingly and willfully enter into a service contract with an ocean transportation intermediary that does not have a tariff and a bond, insurance, or other surety as required by sections 1707 and 1718 of this Appendix, or with an affiliate of such ocean transportation intermediary; or

(13) 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) 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 chapter. Nor shall it be prohibited for any ocean common carrier that is a party to a conference agreement approved under this chapter, 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 chapter 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 nonocean carrier or group of nonocean 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 chapter: 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 transportation intermediary, as defined by section 1702(17)(A) of this Appendix, or limit that compensation to less than a reasonable amount;

(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 authorized by section 1704(g) of this Appendix, or 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 transportation intermediaries, and marine terminal operators

(1) No common carrier, ocean 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)(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 1702(17)(A) of this Appendix.

(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.

(Pub. L. 98-237, § 10, Mar. 20, 1984, 98 Stat. 77; Pub. L. 101-595, title VII, § 710(c), Nov. 16, 1990, 104 Stat. 2997; Pub. L. 102-251, title II, § 201(b), Mar. 9, 1992, 106 Stat. 60; Pub. L. 105-258, title I, § 109, Oct. 14, 1998, 112 Stat. 1909; Pub. L. 105-383, title IV, § 424(b), Nov. 13, 1998, 112 Stat. 3441.)

REFERENCES IN TEXT

The Foreign Shipping Practices Act of 1988, referred to in subsec. (b)(2), is Pub. L. 100-418, title X, subtitle A (§ 10001-10003), Aug. 23, 1988, 102 Stat. 1570, which enacted section 1710a of this Appendix, amended section 1122b of this Appendix, and enacted provisions set out as a note under section 3302 of Title 46, Shipping. For complete classification of this Act to the Code, see Short Title of 1988 Amendment note set out under section 1701 of this Appendix and Tables.

AMENDMENTS

1998--Subsec. (b). Pub. L. 105-258, § 109(a)(16), (17), substituted "paragraph (13)" for "paragraph (16)" and inserted "the Commission," after "United States," in concluding provisions.

Subsec. (b)(1). Pub. L. 105-258, § 109(a)(1), (2), redesignated par. (4) as (1) and struck out former par. (1) which read as follows: "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;".

Subsec. (b)(2). Pub. L. 105-258, § 109(a)(1), (3), added par. (2) and struck out former par. (2) which read as follows: "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;".

Subsec. (b)(3). Pub. L. 105-258, § 109(a)(1), (4), redesignated par. (5) as (3) and struck out former par. (3) which read as follows: "extend or deny to any person any privilege, concession, equipment, or facility except in accordance with its tariffs or service contracts;".

Subsec. (b)(4). Pub. L. 105-258, § 109(a)(5), substituted "for service pursuant to a tariff," for "except for service contracts," in introductory provisions.

Pub. L. 105-258, § 109(a)(4), redesignated par. (6) as (4). Former par. (4) redesignated (1).

Subsec. (b)(4)(A). Pub. L. 105-258, § 109(a)(6), substituted "rates or charges;" for "rates;".

Subsec. (b)(5). Pub. L. 105-258, § 109(a)(7), added par. (5). Former par. (5) redesignated (3).

Subsec. (b)(6). Pub. L. 105-258, § 109(a)(9), added par. (6) and struck out former par. (6) which read as follows: "employ any fighting ship;".

Pub. L. 105-258, § 109(a)(8), redesignated par. (7) as (6). Former par. (6) redesignated (4).

Subsec. (b)(7). Pub. L. 105-258, § 109(a)(8), redesignated par. (8) as (7). Former par. (7) redesignated (6).

Subsec. (b)(8). Pub. L. 105-258, § 109(a)(10), added par. (8). Former par. (8) redesignated (7).

Subsec. (b)(9), (10). Pub. L. 105-258, § 109(a)(10), added pars. (9) and (10) and struck out former pars. (9) and (10) which read as follows:

"(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;".

Subsec. (b)(11). Pub. L. 105-258, § 109(a)(10)-(13), redesignated par. (14) as (11), substituted "an ocean transportation intermediary" for "a non-vessel-operating common carrier" and "sections 1707 and 1718" for "sections 1707 and 1721", and struck out former par. (11) which read as follows: "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;".

Subsec. (b)(12). Pub. L. 105-258, § 109(a)(10)-(15), redesignated par. (15) as (12), substituted "an ocean transportation intermediary" for "a non-vessel-operating common carrier" in two places, substituted "sections 1707 and 1718" for "sections 1707 and 1721", struck out "or in which an ocean transportation intermediary is listed as an affiliate" before "that does not", substituted "Appendix, or with an affiliate of such ocean transportation intermediary;" for "Appendix;", and struck out former par. (12) which read as follows: "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;".

Subsec. (b)(13). Pub. L. 105-258, § 109(a)(10), (11), redesignated par. (16) as (13) and struck out former par. (13) which read as follows: "refuse to negotiate with a shippers' association;".

Subsec. (b)(14) to (16). Pub. L. 105-258, § 109(a)(11), redesignated pars. (14) to (16) as (11) to (13), respectively.

Subsec. (c)(4). Pub. L. 105-258, § 109(b)(1), which directed amendment of subsec. (c)(4) by substituting "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 chapter" for "non-ocean carriers", was executed by making the substitution for "nonocean carriers" the second place it appeared, to reflect the probable intent of Congress.

Subsec. (c)(5). Pub. L. 105-258, § 109(b)(2), substituted "transportation intermediary, as defined by section 1702(17)(A) of this Appendix," for "freight forwarder".

Subsec. (c)(6). Pub. L. 105-383 inserted "authorized by section 1704(g) of this Appendix, or as" before "otherwise".

Subsec. (c)(7), (8). Pub. L. 105-258, § 109(b)(3)-(5), added pars. (7) and (8).

Subsec. (d). Pub. L. 105-258, § 109(c)(1), substituted "transportation intermediaries," for "freight forwarders," in heading.

Subsec. (d)(1). Pub. L. 105-258, § 109(c)(2), substituted "transportation intermediary," for "freight forwarder,".

Subsec. (d)(3). Pub. L. 105-258, § 109(c)(3), which directed amendment of subsec. (d) by substituting "subsections (b)(10) and (13)" for "subsection (b)(11), (12), and (16)", was executed by making the substitution for "subsection (b)(11), (12), and (14)" in par. (3), to reflect the probable intent of Congress.

Subsec. (d)(4), (5). Pub. L. 105-258, § 109(c)(4), added pars. (4) and (5).

1992--Subsec. (b)(14), (15). Pub. L. 102-251 inserted ", insurance, or other surety" after "bond".

1990--Subsec. (b). Pub. L. 101-595 added pars. (14) and (15), redesignated former par. (14) as (16), and substituted "paragraph (16)" for "paragraph (14)" in penultimate sentence.

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

EFFECTIVE DATE OF 1992 AMENDMENT

Section 201(f) of Pub. L. 102-251 provided that: "This section [amending this section and section 1721 of this Appendix and enacting provisions set out as notes under sections 1701 and 1721 of this Appendix] shall become effective 90 days after the date of its enactment [Mar. 9, 1992]."

EFFECTIVE DATE OF 1990 AMENDMENT

Section 710(e) of Pub. L. 101-595 provided that: "This section [enacting section 1721 of this Appendix, amending this section, and enacting provisions set out as notes under sections 1701 and 1721 of this Appendix] shall become effective 90 days after the date of its enactment [Nov. 16, 1990]."

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1704, 1707, 1710, 1712 of this Appendix.

§ 1710. Complaints, investigations, reports, and reparations

(a) Filing of complaints

Any person may file with the Commission a sworn complaint alleging a violation of this chapter, other than section 1705(g) of this Appendix, 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 chapter. 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 1704(a) of this Appendix that operates in violation of this chapter. With respect to agreements inconsistent with section 1705(g) of this Appendix, the Commission's sole remedy is under section 1705(h) of this Appendix.

(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) of this section, 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 chapter 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 chapter plus reasonable attorney's fees. Upon a showing that the injury was caused by activity that is prohibited by section 1709(b)(3) or (6) of this Appendix or section 1709(c)(1) or (3) of this Appendix, or that violates section 1709(a)(2) or (3) of this Appendix, 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 1709(b)(4)(A) or (B) of this Appendix, 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 chapter. 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) of this section, the complainant may file suit in a district court of the United States to enjoin conduct in violation of this chapter. 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.

(Pub. L. 98-237, § 11, Mar. 20, 1984, 98 Stat. 80; Pub. L. 98-595, § 3(b)(2), Oct. 30, 1984, 98 Stat. 3132; Pub. L. 105-258, title I, § 110, Oct. 14, 1998, 112 Stat. 1911.)

AMENDMENTS

1998--Subsec. (g). Pub. L. 105-258 substituted "1709(b)(3) or (6)" for "1709(b)(5) or (7)" and "1709(b)(4)(A) or (B)" for "1709(b)(6)(A) or (B)".

1984--Subsec. (g). Pub. L. 98-595 substituted "section 1709(c)(1) or (3) of this Appendix" for "section 1709(c)(1) or (4) of this Appendix".

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1705, 1718 of this Appendix.

§ 1710a. Foreign laws and practices

(a) Definitions

For purposes of this section--

(1) "common carrier", "marine terminal operator", "ocean transportation intermediary", "ocean common carrier", "person", "shipper", "shippers' association", and "United States" have the meanings given each such term, respectively, in section 1702 of this Appendix;

(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, agency services, 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 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 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 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 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 91 of this Appendix 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) Administration and enforcement of other laws

The actions against foreign carriers authorized in subsections (e) and (f) of this section may be used in the administration and enforcement of section 1712(b)(6) of this Appendix or section 876(1)(b) ¹ of this Appendix.
__________
¹ See References in Text note below.

(i) Review of rules, regulations, and final orders of Commission; exclusive procedure

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.

(Pub. L. 100-418, title X, § 10002, Aug. 23, 1988, 102 Stat. 1570; Pub. L. 105-258, title I, § 111, Oct. 14, 1998, 112 Stat. 1911.)

REFERENCES IN TEXT

Section 876(1)(b) of this Appendix, referred to in subsec. (h), was redesignated section 876(a)(2) of this Appendix by Pub. L. 105-258, title III, § 301(b)(1), (2), Oct. 14, 1998, 112 Stat. 1915, 1916.

Codification

This section was enacted as part of the Foreign Shipping Practices Act of 1988 and also as part of the Omnibus Trade and Competitiveness Act of 1988, and not as part of the Shipping Act of 1984 which comprises this chapter.

AMENDMENTS

1998--Subsec. (a)(1). Pub. L. 105-258, § 111(1), substituted " 'ocean transportation intermediary'," for " 'non-vessel-operating common carrier',".

Subsec. (a)(4). Pub. L. 105-258, § 111(2), (3), struck out "forwarding and" before "agency services" and substituted "ocean transportation intermediary services and" for "non-vessel-operating common carrier".

Subsecs. (c)(1), (d)(1). Pub. L. 105-258, § 111(4), substituted "transportation intermediary," for "freight forwarder,".

Subsec. (e)(1)(B). Pub. L. 105-258, § 111(5), (6), substituted "and service contracts," for "filed with the Commission," and inserted "and service contracts" before "of conferences".

Subsec. (h). Pub. L. 105-258, § 111(7), substituted "(b)(6)" for "(b)(5)".

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1273a, 1709 of this Appendix.

§ 1711. Subpenas and discovery

(a) In general

In investigations and adjudicatory proceedings under this chapter--

(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 subpena 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.

(Pub. L. 98-237, § 12, Mar. 20, 1984, 98 Stat. 81.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1712 of this Appendix.

§ 1712. Penalties

(a) Assessment of penalty

Whoever violates a provision of this chapter, 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 chapter, 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 therefore 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 1709(b)(1), (2), or (7) of this Appendix, 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 subpena under section 1711 of this Appendix, 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 1711 of this Appendix, 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 91 of this Appendix.

(5) 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) 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), (3), and (4) of this subsection.

(7) 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 chapter. 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.

(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 1709(a)(1), (b)(1), or (b)(2) of this Appendix, 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.

(Pub. L. 98-237, § 13, Mar. 20, 1984, 98 Stat. 82; Pub. L. 105-258, title I, § 112, Oct. 14, 1998, 112 Stat. 1911.)

AMENDMENTS

1998--Subsec. (a). Pub. L. 105-258, § 112(a), inserted at end "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 therefore in the district court of the United States for the district in which it may be found."

Subsec. (b)(1). Pub. L. 105-258, § 112(b)(1), substituted "section 1709(b)(1), (2), or (7)" for "section 1709(b)(1), (2), (3), (4), or (8)".

Subsec. (b)(4). Pub. L. 105-258, § 112(b)(3), added par. (4). Former par. (4) redesignated (5).

Subsec. (b)(5). Pub. L. 105-258, § 112(b)(2), redesignated par. (4) as (5). Former par. (5) redesignated (6).

Subsec. (b)(6). Pub. L. 105-258, § 112(b)(2), (4), redesignated par. (5) as (6) and substituted "paragraphs (1), (2), (3), and (4)" for "paragraphs (1), (2), and (3)". Former par. (6) redesignated (7).

Subsec. (b)(7). Pub. L. 105-258, § 112(b)(2), redesignated par. (6) as (7).

Subsec. (f)(1). Pub. L. 105-258, § 112(c)(3), inserted at end "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."

Pub. L. 105-258, § 112(c)(2), which directed that "(b)(1), (2)" be substituted for "(b)(1), (4)", could not be executed, because "(b)(1), (4)" does not appear in text.

Pub. L. 105-258, § 112(c)(1), substituted "or (b)(2)" for "or (b)(4)".

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1710a, 1718 of this Appendix.

§ 1713. Commission orders

(a) In general

Orders of the Commission relating to a violation of this chapter 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.

(Pub. L. 98-237, § 14, Mar. 20, 1984, 98 Stat. 83.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1718 of this Appendix; title 28 section 2342.

§ 1714. 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.

(Pub. L. 98-237, § 15, Mar. 20, 1984, 98 Stat. 84; Pub. L. 98-595, § 3(b)(3), Oct. 30, 1984, 98 Stat. 3133; Pub. L. 105-258, title I, § 113, Oct. 14, 1998, 112 Stat. 1912.)

AMENDMENTS

1998--Pub. L. 105-258 struck out "and certificates" after "Reports" in section catchline, struck out "(a) Reports" before "The Commission", and struck out heading and text of subsec. (b). Text read as follows: "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 freight forwarder, 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 chapter;

"(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."

1984--Subsec. (b). Pub. L. 98-595 substituted "Whoever fails to file a certificate required by the Commission under this subsection is liable to the United States for" for "Failure to file a certificate shall result in" before "a civil penalty".

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

§ 1715. Exemptions

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 chapter or any specified activity of those persons from any requirement of this chapter if it finds that the exemption will not 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.

(Pub. L. 98-237, § 16, Mar. 20, 1984, 98 Stat. 84; Pub. L. 105-258, title I, § 114, Oct. 14, 1998, 112 Stat. 1912.)

AMENDMENTS

1998--Pub. L. 105-258 substituted "result in substantial reduction in competition or be detrimental to commerce." for "substantially impair effective regulation by the Commission, be unjustly discriminatory, result in a substantial reduction in competition, or be detrimental to commerce."

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1706, 1709 of this Appendix.

§ 1716. Regulations

(a) The Commission may prescribe rules and regulations as necessary to carry out this chapter.

(b) The Commission may prescribe interim rules and regulations necessary to carry out this chapter. For this purpose, the Commission is excepted from compliance with the notice and comment requirements of section 553 of title 5. 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 March 20, 1984.

(Pub. L. 98-237, § 17, Mar. 20, 1984, 98 Stat. 84.)

REGULATIONS

Pub. L. 105-258, title II, § 203, Oct. 14, 1998, 112 Stat. 1915, provided that: "Not later than March 1, 1999, the Federal Maritime Commission shall prescribe final regulations to implement the changes made by this Act [see Tables for classification]."

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 28 section 2342.

§ 1718. Ocean transportation intermediaries

(a) License

No person in the United States may act as an ocean transportation intermediary unless that person holds a license issued by the Commission. The Commission shall issue an intermediary's license to any person that the Commission determines to be qualified by experience and character to act as an ocean transportation intermediary.

(b) Financial responsibility

(1) No person may act as an ocean transportation intermediary unless that person furnishes a bond, proof of insurance, or other surety 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.

(2) A bond, insurance, or other surety obtained pursuant to this section--

(A) shall be available to pay any order for reparation issued pursuant to section 1710 or 1713 of this Appendix, or any penalty assessed pursuant to section 1712 of this Appendix;

(B) may be available to pay any claim against an ocean transportation intermediary arising from its transportation-related activities described in section 1702(17) of this Appendix with the consent of the insured ocean transportation intermediary and subject to review by the surety company, or when the claim is deemed valid by the surety company after the ocean transportation intermediary has failed to respond to adequate notice to address the validity of the claim; and

(C) shall be available to pay any judgment for damages against an ocean transportation intermediary arising from its transportation-related activities under section 1702(17) of this Appendix, provided the claimant has first attempted to resolve the claim pursuant to subparagraph (B) of this paragraph and the claim has not been resolved within a reasonable period of time.

(3) The Commission shall prescribe regulations for the purpose of protecting the interests of claimants, ocean transportation intermediaries, and surety companies with respect to the process of pursuing claims against ocean transportation intermediary bonds, insurance, or sureties through court judgments. The regulations shall provide that a judgment for monetary damages may not be enforced except to the extent that the damages claimed arise from the transportation-related activities of the insured ocean transportation intermediary, as defined by the Commission.

(4) An ocean transportation intermediary not domiciled in the United States shall designate a resident agent in the United States for receipt of service of judicial and administrative process, including subpoenas.

(c) Suspension or revocation

The Commission shall, after notice and hearing, suspend of ¹ revoke a license if it finds that the ocean transportation intermediary is not qualified to render intermediary services or that it willfully failed to comply with a provision of this chapter or with a lawful order, rule, or regulation of the Commission. The Commission may also revoke an intermediary's license for failure to maintain a bond, proof of insurance, or other surety in accordance with subsection (b)(1) of this section.
__________
¹ So in original. Probably should be "or".

(d) Exception

A person whose primary business is the sale of merchandise may forward shipments of the merchandise for its own account without a license.

(e) Compensation of intermediaries by carriers

(1) A common carrier may compensate an ocean transportation intermediary, as defined in section 1702(17)(A) of this Appendix, in connection with a shipment dispatched on behalf of others only when the ocean transportation intermediary has certified in writing that it holds a valid license, if required by subsection (a) of this section, and has performed the following services:

(A) Engaged, booked, secured, reserved, or contracted directly with the carrier or its agent for space aboard a vessel or confirmed the availability of that space.

(B) Prepared and processed the ocean bill of lading, dock receipt, or other similar document with respect to the shipment.

(2) No common carrier may pay compensation for services described in paragraph (1) more than once on the same shipment.

(3) No ocean transportation intermediary may receive compensation from a common carrier with respect to a shipment in which the intermediary has a direct or indirect beneficial interest nor shall a common carrier knowingly pay compensation on that shipment.

(4) No conference or group of 2 or more ocean common carriers in the foreign commerce of the United States that is authorized to agree upon the level of compensation paid to an ocean transportation intermediary, as defined in section 1702(17)(A) of this Appendix, may--

(A) deny to any member of the conference or group the right, upon notice of not more than 5 calendar days, to take independent action on any level of compensation paid to an ocean transportation intermediary, as so defined; or

(B) agree to limit the payment of compensation to an ocean transportation intermediary, as so defined, to less than 1.25 percent of the aggregate of all rates and charges which are applicable under a tariff and which are assessed against the cargo on which the intermediary services are provided.

(Pub. L. 98-237, § 19, Mar. 20, 1984, 98 Stat. 87; Pub. L. 105-258, title I, § 116, Oct. 14, 1998, 112 Stat. 1912.)

AMENDMENTS

1998--Pub. L. 105-258, § 116(1), substituted "transportation intermediaries" for "freight forwarders" in section catchline.

Subsec. (a). Pub. L. 105-258, § 116(2), added subsec. (a) and struck out heading and text of former subsec. (a). Text read as follows: "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."

Subsec. (b). Pub. L. 105-258, § 116(4), added subsec. (b). Former subsec. (b) redesignated (c).

Subsec. (c). Pub. L. 105-258, § 116(6), substituted "a bond, proof of insurance, or other surety in accordance with subsection (b)(1) of this section." for "a bond in accordance with subsection (a)(2) of this section."

Pub. L. 105-258, § 116(5)(D), substituted "intermediary services" for "forwarding services" in first sentence.

Pub. L. 105-258, § 116(5)(B), substituted "an intermediary's" for "a forwarder's" in second sentence.

Pub. L. 105-258, § 116(5)(A), substituted "transportation intermediary" for "freight forwarder" in first sentence.

Pub. L. 105-258, § 116(3), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d).

Subsec. (d). Pub. L. 105-258, § 116(3), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 105-258, § 116(3), (7), redesignated subsec. (d) as (e) and substituted "intermediaries" for "forwarders" in heading.

Subsec. (e)(1). Pub. L. 105-258, § 116(9), substituted "license, if required by subsection (a) of this section," for "license" in introductory provisions.

Pub. L. 105-258, § 116(8), substituted "an ocean transportation intermediary, as defined in section 1702(17)(A) of this Appendix," for "an ocean transportation intermediary" in introductory provisions.

Pub. L. 105-258, § 116(5)(A), substituted "transportation intermediary" for "freight forwarder" in two places in introductory provisions.

Subsec. (e)(3). Pub. L. 105-258, § 116(10), redesignated par. (4) as (3) and struck out former par. (3) which read as follows: "No compensation may be paid to an ocean transportation intermediary except in accordance with the tariff requirements of this chapter."

Pub. L. 105-258, § 116(5)(A), substituted "transportation intermediary" for "freight forwarder".

Subsec. (e)(4). Pub. L. 105-258, § 116(11), added par. (4). Former par. (4) redesignated (3).

Pub. L. 105-258, § 116(5)(C), substituted "intermediary has" for "forwarder has".

Pub. L. 105-258, § 116(5)(A), substituted "transportation intermediary" for "freight forwarder".

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1709 of this Appendix.

§ 1719. Contracts, agreements, and licenses under prior shipping legislation

(a) to (c) Omitted

(d) Effects on certain agreements and contracts

All agreements, contracts, modifications, licenses, and exemptions previously issued, approved, or effective under the Shipping Act, 1916, or the Shipping Act of 1984, shall continue in force and effect as if issued or effective under this Act, as amended by the Ocean Shipping Reform Act of 1998, and all new agreements, contracts, and modifications to existing, pending, or new contracts or agreements shall be considered under this Act, as amended by the Ocean Shipping Reform Act of 1998.

(e) Savings provisions

(1) Each service contract entered into by a shipper and an ocean common carrier or conference before March 20, 1984, may remain in full force and effect and need not comply with the requirements of section 1707(c) of this Appendix until 15 months after March 20, 1984.

(2) This Act and the amendments made by it shall not affect any suit--

(A) filed before March 20, 1984; or

(B) with respect to claims arising out of conduct engaged in before March 20, 1984, filed within 1 year after March 20, 1984.

(3) The Ocean Shipping Reform Act of 1998 shall not affect any suit--

(A) filed before the effective date of that Act; or

(B) with respect to claims arising out of conduct engaged in before the effective date of that Act filed within 1 year after the effective date of that Act.

(4) Regulations issued by the Federal Maritime Commission shall remain in force and effect where not inconsistent with this Act, as amended by the Ocean Shipping Reform Act of 1998.

(Pub. L. 98-237, § 20, Mar. 20, 1984, 98 Stat. 90; Pub. L. 105-258, title I, § 117, Oct. 14, 1998, 112 Stat. 1914.)

REFERENCES IN TEXT

The Shipping Act, 1916, referred to in subsec. (d), is act Sept. 7, 1916, ch. 451, 39 Stat. 728, as amended, which is classified generally to chapter 23 (§ 801 et seq.) of this Appendix. For complete classification of this Act to the Code, see section 842 of this Appendix and Tables.

The Shipping Act of 1984 and this Act and the amendments made by it, referred to in text, is Pub. L. 98-237, Mar. 20, 1984, 98 Stat. 67, as amended, which is classified principally to this chapter (§ 1701 et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 1701 of this Appendix and Tables.

The Ocean Shipping Reform Act of 1998, referred to in subsecs. (d) and (e)(3), (4), is Pub. L. 105-258, Oct. 14, 1998, 112 Stat. 1902. For the effective date of this Act, see section 2 of Pub. L. 105-258, set out as an Effective Date of 1998 Amendment note under section 1701 of this Appendix. For complete classification of this Act to the Code, see Short Title of 1998 Amendment note set out under section 1701 of this Appendix and Tables.

Codification

Section is comprised of subsecs. (d) and (e) of section 20 of Pub. L. 98-237. Subsecs. (a) to (c) of section 20 amended sections 801, 812, 814, 815, 816, 817, 819, 820, 821, 824, 828, 829, 830, 831, 841c, 1122, and 1124 of this Appendix and repealed sections 813, 813a, 825, and 841b of this Appendix and provisions set out as a note under section 801 of this Appendix.

AMENDMENTS

1998--Subsec. (d). Pub. L. 105-258, § 117(1), added subsec. (d) and struck out heading and text of former subsec. (d). Text read as follows: "All agreements, contracts, modifications, and exemptions previously approved or licenses previously issued by the Commission shall continue in force and effect as if approved or issued under this chapter; and all new agreements, contracts, and modifications to existing, pending, or new contracts or agreements shall be considered under this chapter."

Subsec. (e)(3), (4). Pub. L. 105-258, § 117(2), added pars. (3) and (4).

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2 of Pub. L. 105-258, set out as a note under section 1701 of this Appendix.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1706 of this Appendix.