Decoding OSRA – Part 5. Prohibition on Retaliation

Introduction

We’re nonetheless solely starting to see how the adjustments to U.S. delivery regulation will have an effect on companies’ imports and exports in addition to carriers and different stakeholders operations inside within the maritime trade. At Common Cargo, we wish to assist shippers understand how regulation adjustments will have an effect on them. What precisely does the Ocean Delivery Reform Act of 2022 (OSRA) say and do? This weblog sequence goes via it part by part, so you may see precisely what our lawmakers modified within the U.S. Code coping with delivery.

We’ll provide the OSRA textual content; the textual content of the U.S. Code, often in Title 46, earlier than and after its amendments; and contemplate what these adjustments imply for U.S. importers and exporters.

Beforehand coated on this sequence:

Clearly, which means at present we’re protecting Part 5 of OSRA. Let’s see precisely what it says and adjustments…

Fast Overview

Part 5 of OSRA is easy. It makes no edits to sentences or paragraphs of Title 46. Somewhat, Part 5 of OSRA provides a ban on retaliatory motion from carriers in opposition to shippers to the Common Prohibitions part of Title 46.

Part 5 outlaws carriers from actions like refusing service or discriminating in opposition to shippers for submitting a grievance in opposition to the provider or delivery via one other provider.

Part 5 Textual content

SEC. 5. PROHIBITION ON RETALIATION.

    Part 41102 of title 46, United States Code, is amended by including 
on the finish the next:
    ``(d) Retaliation and Different Discriminatory Actions.--A standard 
provider, marine terminal operator, or ocean transportation middleman, 
performing alone or at the side of some other particular person, instantly or 
not directly, might not--
            ``(1) retaliate in opposition to a shipper, an agent of a shipper, an 
        ocean transportation middleman, or a motor provider by 
        refusing, or threatening to refuse, an otherwise-available cargo 
        area lodging; or
            ``(2) resort to some other unfair or unjustly discriminatory 
        motion for--
                    ``(A) the rationale {that a} shipper, an agent of a 
                shipper, an ocean transportation middleman, or motor 
                provider has--
                          ``(i) patronized one other provider; or
                          ``(ii) filed a grievance in opposition to the widespread 
                      provider, marine terminal operator, or ocean 
                      transportation middleman; or

[[Page 136 STAT. 1274]]

Portion of Title 46 Part 5 Amends

Once more, Part 5 doesn’t edit textual content in Title 46 a lot because it provides further textual content to Part 41102 of the delivery regulation. Nonetheless, I’ll nonetheless present the complete textual content of the part earlier than the addition, so you may see what it already covers and the way the brand new prohibition suits in. Fortunately, this isn’t an extended part.

§41102. Common prohibitions

   (a) Acquiring Transportation at Much less Than Relevant Charges.—An individual might not knowingly and willfully, instantly or not directly, via false billing, false classification, false weighing, false report of weight, false measurement, or some other unjust or unfair system or means, acquire or try to acquire ocean transportation for property at lower than the charges or fees that will in any other case apply.

   (b) Working Opposite to Settlement.—An individual might not function underneath an settlement required to be filed underneath part 40302 or 40305 of this title if—

      (1) the settlement has not change into efficient underneath part 40304 of this title or has been rejected, disapproved, or canceled; or

      (2) the operation is just not in accordance with the phrases of the settlement or any modifications to the settlement made by the Federal Maritime Fee.

   (c) Practices in Dealing with Property.—A standard provider, marine terminal operator, or ocean transportation middleman might not fail to determine, observe, and implement simply and cheap rules and practices referring to or linked with receiving, dealing with, storing, or delivering property.

(Pub. L. 109–304, §7, Oct. 6, 2006, 120 Stat. 1540.)

[Historical and Revision Notes table omitted.]

Seen Modifications

Part 5 provides a fourth merchandise to the quick checklist of common prohibitions in Part 41102 of Title 46. That merchandise is damaged down into two forms of outlawed actions, that are additional damaged down into the 2 causes for the actions that will make the actions illicit.

Let’s undergo it paragraph by paragraph.

Paragraph (d)

Paragraph (d) provides an overarching title to the brand new prohibition and defines who or what entity is prohibited from retaliatory or discriminatory actions:

``(d) Retaliation and Different Discriminatory Actions.--A standard 
provider, marine terminal operator, or ocean transportation middleman, 
performing alone or at the side of some other particular person, instantly or 
not directly, might not--

What stands out right here is that this not solely applies to carriers but additionally to terminal operators and ocean transportation intermediaries, which might doubtless embody freight forwarders, NVOCCs (non-vessel working widespread carriers), and 3PLs (third-party logistics firms). Sure, there’s a lot overlap in these three firm sorts listed.

Subparagraph (1)

Subparagraph (1) of the brand new part reads as follows:

``(1) retaliate in opposition to a shipper, an agent of a shipper, an 
        ocean transportation middleman, or a motor provider by 
        refusing, or threatening to refuse, an otherwise-available cargo 
        area lodging; or

Subparagraph (1) does two issues.

First, it defines who carriers, terminal operators, and ocean transportation intermediaries might not retaliate in opposition to: not solely shippers but additionally their brokers, ocean transportation intermediaries like freight forwarders, and truckers or trucking firms.

Second, it defines a method wherein retaliation is prohibited: by refusing or threatening to refuse obtainable cargo area a.ok.a. refusing service.

It stands out that ocean transportation intermediaries are included each within the group that’s prohibited from retaliating and the group that can not be retaliated in opposition to. In the end, the objective seems to be defending shippers, so this prohibition is designed to guard them from 3PLs or freight forwarders who would possibly retaliate in opposition to them and shield them from struggling harm from a freight forwarder or 3PL representing them being retaliated in opposition to.

Subparagraph (2)

Subparagraph (2) may be very broad:

``(2) resort to some other unfair or unjustly discriminatory 
        motion for--

The lawmakers clearly didn’t wish to restrict prohibited retaliation to refusal of service. Thus, they included this subparagraph to incorporate any “unfair of unjustly discriminatory motion.” It’s not arduous to think about carriers and shippers might disagree on what’s unfair or unjustly discriminatory.

It’s arduous to assume lawmakers may give you each doable unfair or unjustly discriminatory follow doable, however perhaps they need to have give you just a few doubtless examples like charging a shipper greater than others in retaliation.

Subparagraph (A)

Subparagraph (A) doesn’t do a lot by itself. It really works at the side of the ultimate two subparagraphs to outline the issues for which carriers, terminal operators, or ocean transportation intermediaries can’t resort to unfair or unjustly discriminatory motion. Subparagraph (A) reads:

``(A) the rationale {that a} shipper, an agent of a 
                shipper, an ocean transportation middleman, or motor 
                provider has--

The thought continues on into…

Subparagraph (i)

Subparagraph (i) of the brand new part reads as follows:

``(i) patronized one other provider; or

Thus, shippers (or their truckers or freight forwarders, and many others.) can get providers from different carriers, terminal operators, or ocean transportation intermediaries, and the earlier ones (or latter employed ones) will not be allowed to punish them for it.

Subparagraph (ii)

Subparagraph (ii) of the brand new part reads as follows:

``(ii) filed a grievance in opposition to the widespread 
                      provider, marine terminal operator, or ocean 
                      transportation middleman; or

This offers the second factor for which shippers and/or their brokers can’t be retaliated in opposition to: submitting a grievance. Presumably, this might primarily be complaints filed with the FMC. There was an uptick in such complaints from shippers these days, so this can be having lawmakers’ desired impact.

Extra Commentary

It’s value noting that there’s an “or” on the finish of subparagraph (ii). That might make one assume a subparagraph (iii) is to observe. Nonetheless, there isn’t any subparagraph (iii). There are just a few doable causes for this.

The lawmakers might have had a 3rd motion for this checklist for which shippers couldn’t be retaliated however deleted it whereas forgetting to delete the “or” and alter the checklist’s punctuation. The lawmakers may have by no means had one other merchandise and easily structured it this fashion whereas composing, maybe considering there is likely to be greater than two objects for this checklist, and missed fixing it whereas enhancing. Or perhaps a later part of OSRA will revisit this checklist, including to it.

Conclusion

Part 5 is easy, prohibiting carriers, terminal operators, and ocean transportation intermediators from retaliating in opposition to shippers, their brokers, ocean transportation intermediators, or trucking carriers for submitting complaints or hiring the providers of the primary group’s rivals.

Lawmakers are clearly attempting to guard shippers right here and take away concern of repercussions from submitting complaints in opposition to maritime stakeholders.

If there’s something you assume I missed on this part of OSRA, please share it within the feedback part beneath.

Stayed tuned for when Decoding OSRA continues, analyzing Part 6….