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The Federal Maritime Commission is closely monitoring the behavior of ocean carriers, ports, intermediaries and truckers with respect to its new guidance on how it will assess whether ocean carriers’ and marine terminal operators’ demurrage and detention practices are reasonable.

FMC Chairman Michael Khouri said they want to determine if the interpretative rule is having the intended effect to incentivize the movement of cargo and promote freight fluidity. He believes the interpretative rule is already having a positive impact on the imposition of demurrage and detention fees.

“We have some anecdotal evidence by way of CADRS (Consumer Affairs and Dispute Resolution Services) complaint resolution processes that marine terminals and vessel operators — when presented with the new rules as a defense to detention-demurrage charges — are reducing or even canceling charges in certain fact situations,” he said.

Khouri attended the National Customs Brokers and Forwarders Association of America (NCBFAA) Government Affairs Conference on Sept. 14. Representatives from the nation's leading customs brokers, freight forwarders, NVOCCs, OTIs and service attended the virtual event.

“If you have examples where the interpretive rule has made a difference, we would be happy to hear about it,” Khouri added. “If you have examples of where carriers or terminals are not in compliance with the interpretive rule, we need to hear that as well.”

Before COVID-19, forwarders and consolidators have long been concerned over the imposition of demurrage and detention fees by ocean carriers and marine terminal operators due to supply chain disruptions not of their making. The daily fees reportedly range from $150 to $350 per container.

They continue to worry about these charges now that freight volumes are increasing to the U.S. West Coast ports. They feel that imposing these demurrage and detention fees for reasons out of their control is unfair. 

Demurrage pertains to the time an import container sits in a container terminal, with carriers responsible for collecting penalties on behalf of the marine terminals. Detention relates to shippers holding containers for too long outside the marine terminals.

The FMC finalized new guidance in April. The container availability rulemaking process was initiated by the FMC last fall following approval of recommendations made by Commissioner Rebecca Dye.

(Photo: U.S. Federal Maritime Commission)

Regular cargo volumes and shipping patterns have been altered as a result of COVID-19 impacts on international trade, including disruptions to production and changes in consumer demand. Changes in U.S. – Asia, and U.S. – Europe trade agreements and tariffs are also a factor, especially concerning short term volatility in cargo volumes. Some ocean carriers participating in agreements filed with the Federal Maritime Commission (FMC) have responded to these challenges by reducing carrying capacity through canceled or “blanked” sailings to adjust available capacity to coordinate with the lower demand. Such actions are permitted under the Shipping Act so long as the joint actions do not violate section 6(g) of the Shipping Act by resulting in a substantial reduction in the competition which produces an unreasonable reduction in transportation service or an unreasonable increase in transportation costs.

A core function of the FMC is the monitoring of ocean carrier alliance agreements filed with the agency. The FMC receives exhaustive information from regulated entities, in this case, parties to an ocean carrier alliance agreement. That information is carefully analyzed, along with other information that permits FMC staff to determine trends in the marketplace and the potential for illegal behavior.

The FMC prioritizes its continuous monitoring of all filed agreements on a red-yellow-green scale, with red signifying higher profile agreements. All global carrier alliances are categorized as red agreements. These agreements have the highest potential to cause or facilitate adverse market effects based on the agreement’s authority and scope in combination with underlying market conditions. On an ongoing basis, the FMC monitors key economic indicators and changes to underlying market conditions for all global alliance agreements to detect any joint activity by agreement members that might raise and maintain freight rates above competitive levels. For these agreements, FMC staff conducts more detailed quarterly reviews, and periodically presents current findings and recommendations to the Commission.

The FMC conducts a four-tiered analytical approach. The first tier is an immediate review of advance notifications of canceled alliance sailings or other changes in vessel capacity that affect the supply of vessels of any individual alliance service by more than five percent of average prior weekly vessel capacity. The second tier consists of a careful review, for each global alliance, of submitted minutes from the most senior executive management committee meetings that make vessel deployment decisions. FMC staff utilizes this information to assess the medium- to long-term outlook for capacity levels and how that could impact freight rates. Under the third tier, changes in individual alliance members’ vessel capacity, capacity projections, and how that relates to changes in freight rates are analyzed. The final tier consists of reviewing and analyzing confidentially filed carrier data submitted by the alliances for completeness and accuracy to determine if this data reveals any potential red flags.

The FMC’s section 6(g) review and oversight responsibility for filed agreements is ongoing and continues after a filed agreement has gone into effect. The unusual circumstances and challenges created by the COVID-19 pandemic together with trade agreement changes have heightened the FMC’s scrutiny of capacity reductions by global alliances. FMC staff are actively monitoring these changes for any potential effect on freight rates and transportation service levels. To ensure timely information, the FMC generally requires notice to be submitted before “blanked sailings” are implemented and no later than fifteen days after any such change is agreed upon. If a global alliance cannot file a notice within the required timeframe, they are required to request a waiver stating why they are unable to file timely and why the blank sailing occurred. We also receive notice of the reinstatement of future blanked sailings. We should note that the FMC is currently receiving notices of the reinstatement of some blanked sailings in both the trans-Pacific and trans-Atlantic trade lanes.

If the FMC detects any indication of carrier behavior that may violate section 6(g), we immediately seek to address these concerns with the carriers and, if necessary, the FMC will go to federal court to seek an injunction to enjoin the further operation of the alliance agreement.

Updated: Oct 23, 2023

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