The Federal Maritime Commission issued three policy statements on December 28, 2021, to provide new guidance to shippers and others on bringing private party complaints at the FMC, addressing barriers identified by the trade community as disincentives to filing actions at the agency.
These policy statements were proposed by Commissioner Rebecca F. Dye in a set of Interim Recommendations she issued in July 2021 and developed from her work on Fact Finding 29. The Commission voted in September 2021, to implement her recommendations that do not require legislative action.
In the first policy statement (Docket No. 21- 13), the Commission reiterates that shippers’ associations and trade associations may file a complaint alleging a prohibited act violation under 46 U.S.C. Chapter 411. This allows these organizations to protect the interests of their members while also providing shippers with a degree of separation and insulation from potential retaliation.
The second statement (Docket No. 21- 14) explains the Commission’s approach on attorney fees and reiterates that a party who brings an unsuccessful complaint is not automatically required to pay the other party’s attorney fees. The Commission will look favorably upon complainants who raise non-frivolous claims in good faith, who litigate zealously but within the rules and for proper purposes, and who comply with Commission Orders.
Finally, in the third statement on retaliation (Docket No. 21-15), the Commission emphasizes that it broadly defines both who can bring a retaliation complaint, as well as the types of shipper activity that is protected under the existing retaliation prohibitions. This policy statement also addresses the proof necessary for certain retaliation complaints.