Federal Maritime Commission Issues Final Interpretive Rule on Demurrage and Detention Under the Shipping Act

On May 18, 2020, the Federal Maritime Commission (FMC) published its Final Interpretive Rule on Demurrage and Detention Under the Shipping Act (Demurrage/Detention Rule), 85 Fed. Reg. 29638, 29638 (May 18, 2020).  This final rule, nearly six years in the making (as detailed in the Background section of the Final Rule), was the culmination of “years of complaints from U.S. importers, exporters, transportation intermediaries, and drayage truckers that ocean carrier and marine terminal operator demurrage and detention practices unfairly penalized shippers, intermediaries, and truckers for circumstances outside their control.”  Id.  These complaints ultimately led in 2016 to the filing of a formal Petition for Rulemaking by the Coalition for Fair Port Practices (FMC No. P4–16, Ex. A (Dec. 7, 2016) (Pet. P4–16)). The focus of industry concerns, primarily from shippers/shipping intermediaries, centered on the fact that (a) ocean carriers, rather than marine terminal operators, generally controlled demurrage and detention practices, without uniformity or consistency of terms/terminology; and (b) these practices typically allowed ocean carriers and marine terminal operators to levy detention/demurrage charges even when cargo/equipment could not be retrieved or returned due to circumstances outside the control of the shipper/intermediary, which weakened any incentive for the ocean carrier/marine terminal operator to address port congestion and their own operational inefficiencies.  Id. at 29639.  These concerns, in turn, mobilized a formal investigation (consisting of hearings, field interviews, and document reviews) by the FMC, culminating in FMC Fact Finding 28 and a final recommendation to the FMC Commissioner in August 2019 for development of an interpretive rule on detention/demurrage. [Note – The full record for Fact Finding 28 leading up to issuance of the Demurrage/Detention Rule is documented at the FMC’s website – https://www.fmc.gov/fact-finding-28/.]  That recommendation has now been realized with the issuance of the final Demurrage/Detention Rule. (more…)

Coronavirus: U.S. Coast Guard Provides Clarification on “Essential Workers” for the Maritime Industry

As the COVID-19 pandemic continued its spread across the United States in the second and third weeks of March, numerous states instituted stay-at-home/shelter-in-place orders in efforts to “flatten the curve” and prevent overwhelming the health care infrastructure as well as slow or prevent the spread of the virus. Many of these orders have incorporated or referenced the “Memorandum On Identification of Essential Critical Infrastructure Workers During COVID-19 Response” issued by the Cybersecurity and Infrastructure Security Agency (CISA) on March 19, and updated on March 28 (CISA Guidelines). The CISA Guidelines provide guidance on what categories of workers and services should be considered “essential” infrastructure workforce that should continue during the COVID-19 response across all jurisdictions (i.e., exempt from the stay-at-home orders).

Many of the states affected by these CISA-based isolation orders are coastal (New York, California, Virginia, Maryland, Louisiana) and/or along the nation’s inland waterways (Illinois, Ohio, Louisiana), and thus vast swathes of the country’s maritime infrastructure are potentially impacted by these orders. While the CISA Guidelines generally include “maritime transportation workers – port workers, mariners, equipment operators” and categories of “petroleum workers,” these categories were fairly broad and open to further interpretation/specification.

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After Four Years and Numerous Comments, Coast Guard Issues Formal Cybersecurity Guidance for Marine Facilities

In the midst of the chaos generated by the COVID-19 pandemic, on March 20, 2020, the United States Coast Guard (USCG) released an important Navigation and Vessel Inspection Circular (NVIC 20-01) concerning “Guidelines for Addressing Cyber Risks at Maritime Transportation Security Act (MTSA) Regulated Facilities,” together with a Commandant Notice commenting on the NVIC.  NVIC 20-01 has had a long path to finalization via notice and comment rulemaking, and has been discussed previously during the comment period on this blog.   Ironically, given the increased threat of cyber attacks during this period when so many are working remotely via potentially vulnerable online infrastructures, this NVIC is perhaps unintentionally particularly well-timed. (more…)

When Form Meets Substance: Two Fifth Circuit Decisions Chart the Boundary Lines of Summary Judgment

Murky waters swirl in the legal gulf that separates the absence of any “genuine dispute[s] as to any material fact” (in which case summary judgment is appropriate); and the presence of non-speculative “evidence [on which] a reasonable jury could return a verdict for the nonmoving party” (in which case summary judgment is not appropriate and the case must be fully tried to the fact finder). Two recent Fifth Circuit decisions, however, have plumbed these depths and charted a truer course (if only slightly) for navigating maritime summary judgments – although the two decisions resulted in diametrically opposed outcomes. (more…)