United States: Congress Amends The U.S. Shipping Act, Broadening FMC Regulatory Authority

J. Michael Cavanaugh is a Partner in our Washington DD office.

Christopher DeLacy is a Partner in our Washington DC office

Eric Lee is a Partner in our Washington DC office

Daniel L Burkard is an Associate in our Washington DC office.


  • The Federal Maritime Commission Authorization Act of 2017 was signed into law by President Donald Trump on Dec. 4, 2018, marking the first substantive revision to the U.S. Shipping Act, 46 U.S.C. § 40101 et seq. (the Shipping Act) since 1998 and providing several of the most significant changes to the Shipping Act since 1984.
  • The substantive changes to the Shipping Act primarily address antitrust issues related to recent consolidation in the maritime industry and the emergence of ocean carrier alliances.
  • The amended Shipping Act signals an important development for the maritime industry in the U.S. It is aimed at preserving competition in U.S. trades and assuring future capital investment in maritime and transportation infrastructure, the vital link in supply chains across the U.S. and the world.

President Donald Trump, with bipartisan support, signed into law the Federal Maritime Commission Authorization Act of 2017 (the Act) on Dec. 4, 2018, as part of the Frank LoBiondo Coast Guard Authorization Act of 2018 (S. 140). The Act represents the first substantive revision to the U.S. Shipping Act, 46 U.S.C. § 40101 et seq. (the Shipping Act) since 1998, and includes several of the most significant changes to the Shipping Act since 1984. The principal changes to the Shipping Act primarily address antitrust issues related to recent consolidation in the maritime industry and the emergence of ocean carrier alliances. These changes are expected to help protect marine terminal service providers as well as other U.S. marine equipment and services providers, and to preserve investment in domestic shore-side maritime infrastructure.

History of the Shipping Act

Enacted in 1916, the Shipping Act confers authority upon the Federal Maritime Commission (FMC) to regulate maritime commerce in the U.S. The Shipping Act regulates common carriers (both non-vessel and vessel operating) and marine terminal operators (MTOs) and affords limited antitrust protections to filed agreements among regulated parties. In 1984, the Shipping Act was revised to eliminate a longstanding requirement for affirmative FMC approval of agreements and the requirement for carriers to file tariffs with the FMC. Pursuant to the 1984 amendment, parties may file agreements with the FMC, which become effective 45 days after filing unless, in the interim, the agency obtains injunctive relief in court to block the agreement. Carriers now publish tariffs, rather than filing them with the FMC.

The last amendment to the Shipping Act occurred in 1998 as the Ocean Shipping Reform Act of 1998, following a five-year study of the effect of the Shipping Act on maritime trade and commerce. The 1998 amendment allowed carriers and shippers to enter confidential rate agreements providing discounted rates in exchange for cargo volume commitments. In 2005, the FMC issued a regulatory ruling extending authority to non-vessel operating common carriers (NVOCCs) to enter such confidential rate agreements with shippers.

After the 1998 amendment, the maritime industry experienced significant and widespread consolidation. In addition to carrier mergers and acquisitions concentrating the bulk of containership capacity in U.S. trades to fewer than a dozen large carriers, the formation of vessel carrier alliances caused further substantial consolidation. Currently, there are three major carrier alliances representing 80 percent of all container trade. Within the alliances, there has been further consolidation, e.g., the creation of Ocean Network Express (ONE) by the merger of Japanese carriers.

In 2017, Congress began serious efforts to review and amend the Shipping Act to address these changes to the maritime industry, all of which have affected U.S. infrastructure investment. The legislative efforts represent the first step toward bolstering the U.S. maritime industry.

Significant Revisions to the Shipping Act

The newly enacted Federal Maritime Commission Authorization Act of 2017 amends key sections of the Shipping Act, particularly in the areas of 1) competition regulation and remedies for violations of the Shipping Act's antitrust provisions, 2) ocean transportation intermediary (OTI) licensure requirements and 3) adjustments to filing requirements. Each of these topics is discussed in further detail below:

1. Regulation of Competition in Ocean Carriage

The Act amends multiple sections in the Shipping Act with the design of prohibiting anti-competitive behavior that would have a material adverse effect on U.S.-based maritime infrastructure and marine services and equipment providers. Section 703 requires the FMC to conduct "an analysis of the impacts on competition for the purchase of certain covered services by alliances of ocean common carriers" on an annual basis. This statutory mandate is intended to promote active FMC oversight of the ocean carrier alliances to ensure that U.S.-based infrastructure interests are not unfairly disadvantaged. Section 704 focuses upon alliances' impact on "certain covered services ... with respect to a vessel":

(A) the berthing or bunkering of the vessel;
(B) the loading or unloading of cargo to or from the vessel to or from a point on a wharf or terminal;
(C) the positioning, removal, or replacement of buoys related to the movement of the vessel; and
(D) ... towing vessel services provided to such a vessel.

The definition of "certain covered services" is noteworthy given that it generally covers those services that ocean carrier alliance members procure at U.S. marine terminals. Section 709 utilizes this term in prohibiting ocean carriers from negotiating for "certain covered services" with MTOs in violation of antitrust laws or in a manner inconsistent with the purposes of the Shipping Act. The Act prohibits ocean carriers from engaging in excessively anti-competitive strategies when collectively negotiating with terminal service providers. This provision is designed to protect MTOs by avoiding a situation where MTOs and other service providers are forced to negotiate with the carriers acting collectively with such a concentration of bargaining power that rates are pressured to unsustainable levels, which may impair future investment in U.S. maritime terminal and port infrastructure.

The Act provides specific tools and remedies to the FMC and courts to enforce the provisions precluding anticompetitive behavior of regulated entities. Section 710 grants the FMC authority to seek injunctive relief against actions of regulated entities that "substantially lessen competition in the purchasing of certain covered services." Section 710 expands the scope of factors the FMC must consider when seeking injunctive relief to include the aggregate effect of agreements on competition, rather than reviewing the agreements' isolated impacts. In addition, Section 709 preserves the U.S. Department of Justice's (DOJ) authority to prosecute anticompetitive behavior that violates the U.S. antitrust laws. This section confirms that DOJ has a role in the enforcement process.

Section 708 further amends the Shipping Act to restrict anticompetitive actions of common carriers. This section specifically prohibits a common carrier from "continu[ing] to participate simultaneously in a rate discussion agreement and an agreement to share vessels, in the same trade" if the continued participation would likely produce an unreasonable reduction in service or increase in transportation cost.

Finally, the Act requires the U.S. Comptroller General to conduct a study of recent bankruptcies of ocean carriers. This provision flows from the recent bankruptcy of Hanjin Shipping, which saddled MTOs, shippers and suppliers with significant losses ranging from non-payment to lengthy delivery delays and loss or seizure of cargo. The purpose of this amendment to the Shipping Act is aimed at mitigating and understanding bankruptcy risks in the era of carrier alliances through a detailed review of these bankruptcies and their potential effect in the era of substantial carrier capacity concentrations and alliance activities.

2. Ocean Transportation Intermediaries

The Act amends the Shipping Act's provisions regarding OTI licensing requirements. The Shipping Act prohibits a person from acting as an OTI (i.e., as an NVOCC or ocean freight forwarder) unless the person holds a valid license. Section 707 amends the Shipping Act to further specify that a person is not permitted to "advertise, hold oneself out" as an OTI without a valid license. Coupled with recent FMC rulemaking that extends a "registration" requirement to foreign-based NVOCCs handing U.S. inbound trade, these changes give the FMC more comprehensive oversight on OTIs while simultaneously reducing administrative compliance burdens on the industry.

Section 707 exempts certain persons from the Shipping Act's licensing and financial responsibility requirements. The exempted persons include "a person that performs ocean transportation intermediary services" as a "disclosed agent on behalf of an ocean transportation intermediary."

3. MTO Reporting Requirements

Section 705 clarifies the Shipping Act and FMC regulatory requirements upon MTOs to file periodic reports with the FMC to align with what is already required of MTOs and to resolve any existing ambiguity. Additionally, following this amendment, the Shipping Act now provides that "any report, account, record, rate, charge or memorandum required to be filed shall be made under oath if the Commission requires" and "be filed in the form and within the time prescribed by the Commission." The FMC, however, is required to "limit the scope of any filing ordered" when necessary "to fulfill the objective of the order." Section 705 also strengthens the authority of the FMC to investigate persons subject to the agency's regulation by authorizing the FMC to request from "a person, at any time, any additional information the Commission considers necessary" to carry out the purposes of the Shipping Act.

Considerations and Takeaways

The Act is an important development for the maritime industry in the U.S. It is aimed at preserving competition in U.S. trades and assuring future capital investment in maritime and transportation infrastructure, the vital link in supply chains across the U.S. and the world. The Act grants the FMC specific authority to investigate any ocean carrier alliances that engage in anticompetitive action during negotiations with other maritime industry players and contains a number of amendments to the Shipping Act addressing anticompetitive behavior of carriers.

  • The FMC must review the effects of alliances on an annual basis and include this information in its report to Congress.
  • Carrier alliances are prohibited from engaging in collective negotiation that would result in excessive anti-competitive impacts (i.e. unsustainable rates, reductions in capacity).
  • The FMC will consider the aggregate effect of carrier alliance agreements on competition when determining whether to seek injunctive relief against certain activities.
  • Carriers cannot participate in both a rate discussion and vessel sharing agreement operating in the same trade if such participation results in a reduction in service or increase in transportation cost.
  • The DOJ will continue to have authority to prosecute anti-competitive behavior in violation of U.S. antitrust laws.

These provisions are intended to protect U.S.-based MTO infrastructure and other domestic stakeholders (i.e., harbor pilots, tug operators, equipment suppliers, etc.) from being forced to accept pricing from the ocean carriers in concerted action that will threaten their long-term sustainability and impede future investment in infrastructure and technology.

The Act provides a clear mandate from Congress for the FMC to exercise substantial oversight over and review of ocean carrier alliance activity with respect to the use of U.S. infrastructure. The addition of the term "certain covered services" in the U.S. terminal services industries focuses attention on important activities of U.S.-based service providers, which represent U.S. strategic supply chain assets as well as major U.S. employers. The Act protects these service providers by limiting ocean carriers from engaging in excessively anti-competitive strategies when collectively negotiating with terminal service providers.

Finally, the Act protects U.S. maritime interests by requiring the Comptroller General to conduct a study of a "major ocean carrier bankruptcy" for purposes of mitigating the effect of any future bankruptcy event on supply chains in the U.S. This provision has significant implications in light of the 2017 Hanjin Shipping bankruptcy and should bolster maritime commerce response to future such bankruptcies potentially involving alliance member lines. The overall effect of the Act will prove to be significant and should provide strong support to the long-term viability of U.S. maritime commerce.   

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions