Guidance on Charge Complaint Interim Procedure

On June 16, 2022, the Ocean Shipping Reform Act of 2022 (OSRA) amended the Shipping Act and authorized the Federal Maritime Commission (Commission) to promptly investigate “information concerning complaints about charges assessed by a common carrier,” 46 U.S.C. §§ 41310(a)-(b), and order refunds and/or penalties for charges that do not comply with 46 U.S.C. §§ 41104(a) and 41102. This document is intended to provide guidance on Charge Complaints and relief authorized under OSRA.

New Webinar on Charge Complaints

Who can file a Charge Complaint?

Under 46 U.S.C. § 41310, any person may submit to the Commission a complaint about charges assessed by a common carrier that they believe may not comply with sections 41104(a) or  41102 of the Shipping Act as amended.

A complainant may be a shipper, consignee, trucker or third party who paid such charges or who has been invoiced or assessed for such charges.

How do you file a Charge Complaint?

Charge Complaints can be submitted by email to: chargecomplaints@fmc.gov.

A Charge Complaint submission should include the following information:

identification of the common carrier.
description or statement on how the charge or fee violated 46 U.S.C. §§ 41104(a) or 41102.
supporting documentation including Invoices, Bills of Lading, proof of payment for the charges or fees demanded. Screen captures of denied booking appointments for return of equipment, gate closures, or relevant emails also can be provided.

What charges/issues can be included in a Charge Complaint?

Charge Complaints under 46 U.S.C. § 41310 can include a broad range of noncompliant charges assessed by a common carrier, including demurrage and detention charges. While complaints about the reasonableness of a demurrage or detention charge tend to be the most common, other carrier fees or charges which are not in compliance with 46 U.S.C. §§ 41104(a) and 41102 may be submitted for investigation.

What charges are NOT covered under the Charge Complaint procedure?

Charge Complaint procedures do not apply to the following:

charges invoiced or assessed prior to the effective date of OSRA on June 16, 2022.
charges assessed by a marine terminal operator or party other than a common carrier (unless assessed on behalf of the common carrier).
charges that have not yet been invoiced or assessed by the common carrier.
charges assessed on export cargo loading on a vessel at a non-U.S. port, or on import cargo discharging from a vessel at a non-U.S. port.
complaints related to other carrier actions that do not dispute an assessed charge.

Request for assistance for all other disputes against common carriers, freight forwarders, or marine terminal operators can be submitted informally to complaints@fmc.gov.

What will the Charge Complaint procedure look like? How will this operate?

A party interested in filing a Charge Complaint should collect and be prepared to submit the following required information:
- identification of the common carrier.
- description or statement on how the charge or fee violated 46 U.S.C. §§ 41104(a) or 41102.
- supporting documentation including Invoices, Bills of Lading, proof of payment for the charges or fees demanded. Screen captures of denied booking appointments for return of equipment, gate closures, or relevant emails also can be provided.
A Charge Complaint and supporting information should be submitted by email to chargecomplaints@fmc.gov.
Commission staff will acknowledge the submission and, when it receives sufficient information, will promptly investigate the complaint. If Commission staff have questions about your submission, you will be contacted to obtain clarification or to provide missing information.
The common carrier will be contacted by Commission staff and asked to respond/justify the charge or fee being investigated.
Upon completion of the investigation, Commission staff will notify both parties. If the investigation supports a finding that the common carrier’s charge is not in compliance, the parties will be informed that the matter will be referred to the Commission’s Office of Enforcement.
For matters where the investigation supports a finding of a violation, the Office of Enforcement will recommend the Commission issue an Order to Show Cause under 46 C.F.R. § 502.91 to formally adjudicate the Charge Complaint. Investigations that do not support a violation are closed and the parties are notified.
Upon approval of staff’s recommendation, the Commission will issue an Order to Show Cause naming the specific common carrier and actions alleged to violate 46 U.S.C. §§ 41104(a) and/or 41102, and directing that common carrier to “show cause” why it should not be ordered to refund the fees or charges paid or waive such fees.
If the Commission orders a refund by the common carrier, a separate penalty proceeding may be initiated and referred to the Commission’s Administrative Law Judge for consideration of penalties under 46 U.S.C. §§ 41107 and 41109.

Frequently Asked Questions

Can a freight forwarder refuse to provide a copy of the common carrier’s invoice?

No. Freight forwarders cannot withhold information a complainant might need to file a Charge Complaint. Pursuant to Commission regulations, “[n]o licensed freight forwarder shall withhold any information concerning a forwarding transaction from its principal.” 46 C.F.R. § 515.32(c).

Further, freight forwarders are required to provide a complete breakout of its charges and a true copy of any underlying document, bill of charges, or third-party invoice relating to its charges. 46 C.F.R. § 515.32(d).

Failing to comply with the law or FMC regulations is a serious matter. Information about a freight forwarder that is not satisfying its statutory and regulatory duties should be provided separately from the Charge Complaint process by emailing complaints@fmc.gov.

Who has the burden of proof in a Charge Complaint proceeding?

The common carrier. Common carriers will be provided an opportunity to submit additional information related to the charge in question. For demurrage or detention charges, the common carrier bears the burden of proof for establishing the reasonableness of any demurrage or detention charges. 46 U.S.C. § 41310(b)(2).

Can the common carrier settle/voluntarily refund or withdraw the disputed fee or charge?

Yes. The common carrier can voluntarily elect to refund (or waive) any payment to the shipper or complaining party while the matter is being investigated or at any stage prior to the Commission’s decision. The common carrier’s issuance of a refund or waiver of the charge in dispute will result in the closure of the complaint and no additional Charge Complaint action will be taken.

As the shipper or trucker who complained, will I be required to participate in the Charge Complaint proceeding?

No. Formal action is brought by the Commission’s Office of Enforcement. The complaining party is not expected to testify or provide additional information in the Order to Show Cause proceeding before the Commission. The carrier will be contacted as part of the investigation and requested to respond to the specific disputed charges in the complaint.

As the common carrier named in a Charge Complaints proceeding, what will the formal process look like?

Under 46 C.F.R. § 502.91, an Order to Show Cause will provide notice that the common carrier is believed to have assessed a fee or charge not in compliance with 46 U.S.C. §§ 41104(a) or 41102, and identifies the specific transaction, bill of lading, invoice and/or amount paid to the common carrier, and other relevant information. The common carrier is provided the opportunity to “show cause” why the common carrier’s actions should not be found to constitute a violation of 46 U.S.C. §§ 41104(a) or 41102. The common carrier may submit an affidavit(s) of fact, memoranda of law, and any documentary evidence in support of its position.

A show cause proceeding will be conducted on a fast-track basis to provide an early determination concerning the shipper’s entitlement to refund. Procedures not consistent with achieving an expedited decision on refunds or waivers, such as discovery or oral argument, will be waived for the refund proceeding.

What happens if the investigation does not support a finding of noncompliance?

If the investigation does not support a finding of noncompliance, the filing party and common carrier will be advised accordingly. A party is not barred from filing a subsequent small claims or formal complaint with the Commission based on an initial determination under the Charge Complaint procedure not to refer the matter to the Office of Enforcement concerning the disputed charge. A party may also seek alternative dispute resolution services by contacting the Commission’s Office of Consumer Affairs and Dispute Resolution Services.

The Commission’s Bureau of Enforcement, Investigations, and Compliance reviews all information received on possible violations of the Shipping Act and OSRA 2022 and uses its prosecutorial authority to bring actions against carriers and other parties operating unlawfully to the detriment of U.S. exporters and importers.

Why are interim procedures necessary?

Interim procedures allow the Commission to continue to take prompt action to adjudicate Charge Complaints. Experience gained from these first proceedings will guide the Commission on what form a permanent process should take. A new permanent procedure would be completed through a formal rulemaking after notice and public comment.