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On December 28, 2021, the Federal Maritime Commission (FMC or “Commission”) issued three policy statements regarding private party complaints. The statements provide guidance to shippers and other interested parties and are intended to reduce barriers to filing actions at the agency. One specifically addresses shippers’ and other parties’ concerns about retaliation for filing a complaint, concerns that have increased due to ongoing port congestion and challenges impacting the ocean cargo delivery network.

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In the first policy statement, issued in Docket No. 21-13, the FMC reiterated its long-standing view that the statute governing complaints should be interpreted broadly to allow any person to file a complaint, even if that person does not claim injury by an alleged violation of the Shipping Act. The agency clarified that a trade association or shippers’ association can file a complaint to protect its members’ interests even if the association itself did not suffer actual injury. The Commission recognized that sometimes an individual’s or single company’s cost-benefit analysis may not justify bringing an otherwise valid claim due to high litigation costs and, thus, violations of the Shipping Act could still be adjudicated by a representative organization. However, it is important to note that reparations (i.e., monetary damages) are only available to a person who suffers “actual injury,” and the complainant, whether an individual or a trade association, becomes a party to an adversary proceeding and is subject to the FMC’s procedural rules.

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In the second policy statement, issued in Docket No. 21-14, the FMC explained its views on attorney fees and reiterated that a party who brings an unsuccessful complaint is not automatically required to pay the other party’s attorney fees. The Commission emphasized that “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 are at little risk of attorney fee liability if they are unsuccessful, absent unusual circumstances.”

In the third policy statement, issued in Docket No. 21-15, the FMC clarified that the Shipping Act expressly prohibits retaliation against a complaining party and emphasized that it broadly defines who can bring a retaliation complaint. Specifically, the Commission explained that “shippers” are specifically protected against retaliation and that term should be interpreted broadly to include cargo owners, consignors and consignees, shippers’ associations, and non-vessel operating common carriers. The Commission further explained that the statute protects shippers from retaliation for patronizing a carrier, filing a complaint or “for any other reason,” which it says encompasses “participating in Commission investigatory or enforcement efforts, commenting on a rulemaking, or using CADRS’ dispute resolution procedures.” The Commission also established that claims alleging complaint-related retaliation do not require proof of carrier competition and that for a shipper to prevail in a retaliation complaint, it is enough to show that a carrier engaged in unfair or unjustly discriminatory conduct because a shipper filed a complaint.

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Karyn A. Booth 202.263.4108 <a href="mailto:Karyn.Booth@ThompsonHine.com">Karyn.Booth@ThompsonHine.com</a>

Jason D. Tutrone 202.263.4143 <a href="mailto:Jason.Tutrone@ThompsonHine.com">Jason.Tutrone@ThompsonHine.com</a>

Kerem Bilge 202.263.4104 <a href="mailto:Kerem.Bilge@ThompsonHine.com">Kerem.Bilge@ThompsonHine.com</a>

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

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https://admin.thompsonhine.com/wp-content/uploads/2022/08/Transportation_Update_-_FMC_Issues_Policy_Statements_on_Private_Party_Complaints.pdf

FMC Issues Policy Statements on Private Party Complaints, Including Retaliation Concerns

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