Port and Marine Terminal Policy and Legal Issues
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1 Port and Marine Terminal Policy and Legal Issues Marine Terminal Management Training Program Philadelphia, Pennsylvania October 9, 2014 Paul Heylman Saul Ewing LLP Washington, DC
2 1984 Shipping Act Coverage Who is covered Ocean Carriers Marine Terminal Operators ( MTO ) What is an MTO When is a Port an MTO When is a Port not covered as an MTO
3 MTO Defined An MTO someone providing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier
4 Not an MTO Must be Common Carrier Not Contract Carriage Not Tramp Service Must be in Foreign Commerce Does not include some navigational issues PRPA (the other one) and Lower Mississippi Tugs cases
5 MTO Prohibitions Prohibits: Agreement to boycott or discriminate in providing terminal services Undue or unreasonable preference or undue or unreasonable prejudice Unreasonable refusal to deal or negotiate Failure to establish, observe, and enforce just and reasonable regulations (41102)
6 What is Unreasonable or Undue The terms are given meaning by FMC decisions dating back to the 1916 Shipping Act Volkwagenwerk v. FMC U. S. Supreme Court decision M & M Fund contributions No benefit to Volkswagen so illegal to require it to contribute to M & M Fund
7 Unreasonable and Undue Charges and Benefits Mississippi River Fire Boat decision OK to charge for standby for services, but The charge must bear a reasonable relation to the benefit Plaquemines and MTSA issues
8 Treating Like Cases Alike Ceres v. MPA Must base decisions on a legitimate transportation factor Port wanted to attract Maersk from NY Gave Maersk a better deal for proprietary terminal but not for public terminal Ceres (now NYK) won a ruling that the vessel operator or not distinction is not a legitimate factor (a surprise to many)
9 What Ports Can Do Business judgment of Port given considerable deference (Seattle Terminals) OK to negotiate a good settlement on a lease termination (Navieras) OK to refuse to renew lease in order to build new terminal for a different MTO (New Orleans Stevedoring)
10 Exclusive Dealing Arrangements SCSPA Petitioned for FMC approval of stevedore licensing procedure FMC rejected because no showing of necessity Lower Mississippi Tugs cases Initial Ormet decision Over-reading the case (antitrust principals) R. O. White and newer cases
11 Port FMC Filings 1. Marine Terminal Facilities Agreement (MTFA): Agreement that conveys rights to operate any marine terminal facility by means of lease, license, permit, assignment, land rental, or other similar arrangement 2. Marine Terminal Services Agreement (MTSA): Agreement between MTO and ocean common carrier that applies to services provided to and paid for by the carrier Includes dockage, free time, terminal storage, wharfage, wharf demurrage, etc. 3. Cooperative Working Agreements Agreement that establishes exclusive, preferential, or cooperative working relationships that are subject to the Shipping Act, but fall outside the scope of other definitions
12 Filing Requirements for Agreements 1. MTFA: Exempt from filing Current agreement must be provided to any requesting party Potential anti-trust immunity for optional filing? 2. MTSA: Exempt from filing IF no discussion of rates, charges, rules and regulations determined through a marine terminal conference agreement Option to file for anti-trust immunity 3. Cooperative Working Agreement: Must be filed if between common carriers or MTOs, or both Past enforcement efforts have focused on unfiled exclusivity agreements
13 FMC Investigation: Scotia Prince Cruises Docking and lease agreement with Port of Portland Portland agreed not to grant any other operator permission to use its terminal premises for passenger or vehicle service to or from Portland Scotia Prince agreed not to operate any other service between any New England port and Nova Scotia Not considered a MTFA, because of exclusivity and noncompete provisions Instead, likely a cooperative working agreement (must be filed) Effect of agreement was to grant Scotia Prince a monopoly therefore, high bar to prove reasonableness The greater the degree of preference or monopoly, the greater the evidentiary burden of justification.
14 Damages for Shipping Act Violations Reparations to a prevailing complainant Up to three years to file Includes all actual injuries and interest, and double damages in certain cases Reasonable attorney s fees to prevailing complainant Fees are not available to respondent not a prevailing party provision (unfair to respondents) BOE penalties up to $45,000 per day (each day is a continuing violation) if knowing and willful (five year statute of limitations)
15 FMC Developments: Maher Terminals Maher alleged that PANYNJ violated Shipping Act by providing unreasonable preference to APM Terminals North America (Maersk) APM Lease had lower basic annual rent rate; and different investment and throughput requirements ALJ: Different treatment was justified by differences in transportation factors Maersk had threatened to relocate operations to Baltimore and Maher supported keeping Maersk in NYNJ Maersk was able to direct Maersk/Sea-Land traffic to the port, and therefore provided certain guarantees that Maher could not Maher has filed exceptions, which are pending
16 Seaport Alliance: Seattle and Tacoma Ports filed a discussion agreement with FMC in January October 7: Announced formation of Seaport Alliance Unified management of the ports integrated marine cargo terminal operations Equitable investment of assets from each port Two additional FMC filings: 1. Framework Interlocal Agreement to provide authority to develop the Alliance (addendum to Discussion Agreement) 2. Final Seaport Alliance Agreement (expected March 2015) John Wolfe, CEO of Port of Tacoma, expected to be hired as Seaport Alliance CEO
17 Developments Outside the FMC ILWU Negotiations Impact on cargo What the lack of a labor contract has meant to shippers The calm is quite remarkable Possible outcomes if the wheels come off Taft-Hartley injunction Secondary boycotts
18 FMC Congestion Fora Chassis Pools and Discussion Agreements DOJ Business Review Letter available at: DOJ concludes that proposed gray chassis pool agreement will not produce anti-competitive effects DOJ will not challenged the proposed agreement The landside reach of FMC jurisdiction and the impact on chassis issues Ongoing FMC public forums on congestion and chassis issues Four hearings
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