January 10, 2025 • 35 mins
Topic of the Week (1/10/25):
The continuing saga of the INTERNATIONAL LONGSHOREMENS ASSOCIATION and the UNITED STATES MARITIME ALLIANCE LIMITED has come to a conclusion - a new Master Contract has been agreed to!
⚓ The Maritime Professor® presents By Land and By Sea Podcast 🎙️ - an attorney breaking down the week in supply chain
with Lauren Beagen (Founder of The Maritime Professor® and Squall Strategies®)
Let's dive in...
1 - Federal Maritime Commission - Rulemaking/Petition Round-Up
2 - FMC can hear class action lawsuits
https://www.fmc.gov/articles/availability-of-class-action-complaints-at-the-fmc/
3 - FMC announces deadline for Documented Export Strategy (as required by the final rule on “Definition of Unreasonable Refusal to Deal or Negotiate with Respect to Vessel Space Accommodations Provided by an Ocean Common Carrier”
https://www.fmc.gov/articles/deadline-announced-for-required-filing-of-annual-export-strategies-at-fmc/
https://www.federalregister.gov/documents/2024/07/23/2024-16148/definition-of-unreasonable-refusal-to-deal-or-negotiate-with-respect-to-vessel-space-accommodations
-------------------------------
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:28):
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oh, oh, oh, oh, oh, oh, oh, oh,oh, oh, oh, oh, oh, oh, oh, oh,
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oh, oh, oh, oh, oh, oh, oh, oh,oh, oh, oh, oh, oh, oh, oh, oh,
oh, oh.
Oh, I got soul coming through.
Won't stop in the piece and ontop of the world.
Yeah, walk to the beat when yousee me, come and make some room
.
Oh, everywhere I go, I'm in thespotlight.
This is a good life.
Oh, I'm living bold.
This is what it looks like.
I'm addicted to the world.
(00:49):
The drama's over.
The International Longshoremen'sAssociation and the United
States Maritime Alliance havecome to an agreement, or have
they?
Well, yes, but it still needsto be voted on in their
(01:10):
respective organizations.
We're going to break it down.
Stick around.
Hi, welcome to, by Land and bySea, an attorney breaking down
the weekend supply chainpresented by the Maritime
Professor Me.
I'm Lauren Began, founder ofthe Maritime Professor and
Squall Strategies, and I'm yourfavorite maritime attorney.
Join me every week as we walkthrough both ocean transport and
surface transport topics andthe wild world of supply chain.
(01:32):
As always, the guidance here isgeneral and for educational
purposes only.
It should not be construed tobe legal advice and there's no
attorney-client privilegecreated by this video or this
podcast.
If you need an attorney,contact an attorney.
So before we get into thediscussion of the day, let's go
through my top three stories ofthe week.
All right, story number onelet's just kind of recap all
(01:52):
things FMC, right.
So things that we're watching,things that we talked about
before the holiday break, wehave no real new updates,
luckily, on a lot of therulemaking areas, right.
So we were watching in 2024, wehad the final rule on the
detention of marriage billingpractices and we had the final
(02:13):
rule on unreasonable result todeal and negotiate with respect
to vessel space accommodations.
Both of those were finalized.
Both of those have become lostregulatory law.
They are out there, they're inthe wild.
The industry has picked them upand they're using law.
They are out there, they're inthe wild, the industry has
picked them up and they're usingthem.
They both have found themselveswith a petition against them.
So we've been watching that andthere's no real new.
(02:36):
I'm going to get into thepetitions in a minute, but
there's no real new updates onthe petitions right now.
There might be some movement inthe month of January, so I'm
going to be watching for that.
But then also the other thingthat we're watching there's an
open position at the FMC for acommissioner.
We haven't heard a name yet.
There has not been a name putout there publicly.
(02:56):
There's a few names kind offloating around, one that seems
to be rising to the top, but Ihave not found anything publicly
available confirming a namesaying that this person is going
into the open commissioner spot.
So, as we know, commissionerCarl Bensel has left the FMC.
He left during what was it?
Mid-december to go over toNational Waterfront, national
(03:20):
Association of WaterfrontEmployers, and so we have an
open commissioner spot that willbe now going to a Republican
because, as we've talked aboutmany times, the FMC stays three
of one party, two of the other,and so, with a Democrat leaving,
that kind of rebalances it to atwo and two right now of
commissioners that are at theFMC.
So in order to get that thirdmajority side, we have the
(03:44):
Republican coming in under thatthird Republican commissioner
slot.
I haven't heard anythingconclusively there, but there is
a name that's floating up there.
I'm not quite comfortable yetto put it out on the podcast,
but there is a name that seemsto have been floating for the
past few months and now seems tobe floating kind of by by the
man, by himself, at the top here.
(04:04):
So, um, we'll see.
I also haven't heard anythingabout the chairmanship.
Uh, we have heard a lot ofsupport for commissioner rebecca
die.
I think she would be aphenomenal, uh, chairman, and I
say that because she's beenthere for so long and she just
understands the, the regulatorypurview of the fmc, the
jurisdictional limitations, butalso also jurisdictional kind of
(04:25):
authorities that the FMCactually does have.
She's been there since 2002.
So she's been there for I meannow it's a flip of the calendar
right 23 years.
She knows and she's not justkind of like a lame duck 23 year
.
She has been active pretty muchall of those years that she's
been there in a way that haspositioned her to be such a good
(04:46):
facilitator, referee, kind ofthe top spot at the FMC.
So I would love to see herthere.
We'll see, we'll see who endsup.
Because the other thing thatI've heard as a potential
possibility is maybe this wholeshake up of everything falls
(05:07):
into the FMC as well, and we may.
It wouldn't be the wildestthing to have somebody who is
not already at the FMC come inunder this new commissioner spot
and then come in and be thechairman.
I don't know if that's theright move, because the FMC
really does have such nuanced,such specific jurisdictional
(05:27):
authorities.
It's such a unique agency as weknow, right, it's an
independent regulatory agency,similar to Federal
Communications Commission.
So, right, any of the kind ofother commissions.
There's just such a specificnuance that the FMC covers in
its promotion of the US Well,not promotion, excuse me.
(05:49):
It's the movement of protectingthe US consumer, us importer,
exporter and consumer for thefreight and flow and fluidity.
I'm jumping, I'm tumbling allover the mission statement that
usually rolls off my tongue.
So you've heard me say itbefore.
I'm not going to keep mumblingthrough it.
(06:10):
But what we have here is theFMC is such a specific, nuanced
agency and my point beingChairman Dye.
A Chairman Dye would be, I think, a good thing, even though she
wouldn't be a newbie coming intothe scene kind of part of this
disruptor theme I think that shewould be really helpful to have
(06:32):
that institutional knowledge.
I don't think that she has justsat there and enjoyed the
longevity she's had there inkind of a passive way.
She's always been active in theindustry, pushing forward not
from a government-led orgovernment intervention way, but
a government facilitator way, Ithink, but then also making
(06:55):
sure that the competition isfair.
This is turning into apotential chairman dive pitch.
I think she'd be phenomenal.
I hope to see her.
If we don't, I'll keepfollowing it and I'll let you
know what I think about'd bephenomenal.
I hope to see her.
If we don't, I'll keepfollowing it and I'll let you
know what I think about whoeverit might be If it's not her.
Um, I didn't mentioncommissioner Lou Sola as a
potential for the chairmanshiponly because we've talked about
(07:15):
it on this podcast before hewrote a letter in full support
of commissioner die becoming uhbeing appointed to that chairman
position.
So I think in that letter,twofold one.
Obviously it promotescommissioner die.
I think that he has arelationship probably a good
relationship with uh, withpresident-elect trump, because
they're both from florida, um,and, and I've kind of heard that
(07:38):
.
But then also I think that italso takes his name off the
running right.
If he's promoting somebody else, you're probably not going to
give it to him.
So I think it's either the tobe named commissioner or
potentially, hopefully,commissioner Dye, who will be
going into that chairmanshipposition, but we haven't heard
anything.
So, yeah, we do anticipate anew rulemaking coming through in
(08:00):
2025.
We talked about this a few times, but this is that charge
complaint.
We have a interim procedurethat's been created from OSRA 22
, the Ocean Superior Reform Actof 2022 that Congress created.
They said that this needed tobe a process that the FMC had
available.
So the FMC had to I mean uponsignature right so June 16, 2022
(08:21):
, the FMC had to quickly figureout how they're going to
entertain these chargecomplaints.
But what also needs to happenin this charge complaints
process is there needs to be afull, formal rulemaking
associated with it.
What rulemakings really are isan opportunity for the public to
engage in the process, right?
This isn't just an agencydoling out a rulemaking.
(08:44):
This is an agency, depending onwhat stage they start with, but
there's going to be a commentperiod, and so there will likely
be a comment period that isasking for feedback on statute
of limitations that have to dowith charge complaints,
potentially even what chargesare part of charge complaints.
(09:04):
Is it only detention to merge?
It seems like we've seen mostlydetention to merge.
Can it be other charges?
It has to be violations of theShipping Act, but can it be
other charges?
Can it be assessorial chargesor just kind of these work
disruption charges that we sawcome through?
Is that something that could beentertained under the charge
complaints process?
I think that's going to be oneof the questions that's going to
(09:25):
come up in the rulemaking.
We're going to see a fewdifferent areas.
We'll probably see, I wouldexpect.
So there's kind of twodifferent routes that they could
take.
They could go with the advancednotice of proposed rulemaking,
the FMC, which is really wherethey ask questions of the
industry, kind of we have someideas, but what do you think,
versus a notice of proposedrulemaking, which is where they
kind of present some text.
I can imagine we're probablygoing to be on the second side,
(09:46):
that notice of proposedrulemaking, that NPRM, because
they already have an interimprocess.
They're just trying to refineit.
So I think they'll probablycome out with here's the text
that we're proposing for thisregulation.
What do you think?
Here's some areas that we wantsome specific input on.
So I don't know, we'll probablysee that.
I mean, right, it's all goingto be kind of pursuant to the
(10:07):
chairman coming in, but nomatter what, they have to do
this.
So I would guess, maybe April,may that we'll probably see
something on this just to kindof keep things moving and keep
this trucking along, becausethis hasn't been a surprise.
This is something since June 16, 2022, when they created that
interim process, that they'vealso been thinking about.
(10:28):
Well, what does the rulemakingside of things look like?
And this is something that thegeneral counsel of the FMC
brought up in one of thosemeetings, one of the commission
meetings I think it was Augustor sometime around then end of
summer, early fall.
So I'll be on the lookout forthat.
I'll let you know when I seethat hit any sort of once it
hits the federal register.
So no new updates, like I saidon the petitions, but let's kind
(10:49):
of go over where we are withthe petitions.
So we have the two final rulesright.
So we have the detention tomerge billing practices.
That's the first one that has apetition.
That was started April 18th.
That rule became final at theend of May, so that petition
actually came before thefinality of that rule.
As we know, the court didn'tstop that rule from going into
effect.
So the D&D rule, the D&Dbilling practices rule, is a
(11:12):
real rule, but right now they'restill kind of going through and
we've been talking about thiskind of standing issues and
lacking authority.
There's kind of some legalprocedural things that are kind
of baseline baseline, notnon-subject matter.
Um, if we do get to the subjectmatter in this petition, uh and
and petitions take a while,right.
(11:33):
So I think that we're going tobe looking at direct contractual
relationships and really thathinging on the motor carriers
and their inability, um, theinability to directly bill motor
carriers or or another way,really is taking motor carriers
out of those who have to pay.
They can pay, but the FMCreally made a point of saying
direct contractual relationshipand motor carriers are not part
(11:55):
of that direct contractualrelationship as it relates to
detention, demerge billingthat's on petition, not
necessarily yet, but the subjectmatter, I guess the argument is
that there are some directcontractual relationships that
may include motor carriers, andso that's, I think, what the
World Shipping Council willeventually get to.
(12:16):
The interesting development thathappened, what was it?
Early December, I thinkDecember 9th, we had a whole
bunch of trucking associationsjoined with the AGTC Agriculture
Transportation Coalition,basically filing an amicus
curiae brief saying that theyhad some thoughts too.
They said that they.
(12:37):
What did they say?
So they basically came out andsaid that they, if I remember
correctly I don't have any noteson this, but it had to do with
they.
I think I didn't pull my notesover for this one, but, the
point being, the truckersentered the chat.
(13:04):
I think that this is somethingthat you should go check out.
If you're not aware, you canactually pull this case on Pacer
.
It's a publicly accessed site.
You may have to pay like 10cents to actually pull some of
these documents, but you canaccess these dockets yourself.
It's under the US Court ofAppeals for the DC Circuit and
(13:24):
you can find these docketsyourself.
But look, because that casereally kind of hinges on motor
carriers and their inability orthe direct contractual
relationship and so, therefore,taking the motor carriers out of
the direct contractualrelationship, billing required
parties, it makes sense thatthey'd want to weigh in.
So take a look at that.
The other petition that we'refollowing the unreasonable
(13:44):
refusal to negotiate withrespect to vessels-based
accommodations.
No movement there either.
Look, this is still kind ofgoing back on standing, lack of
standing.
Can the council, the WorldShipping Council bring the suit
on behalf of its members, orshould the carriers have brought
the suit directly themselves?
That's kind of where we lastleft it when we were watching.
But I think we're going to seesome filings of both this
(14:05):
petition and the other petitionduring the month of January.
There's some deadlines that arehappening during this month, so
I'll keep watching.
I'll let you know when I seeany movements there.
Story number two that was alonger story number one than I
was expecting it to be.
But story number two FMC canhear class action lawsuits and
I'm hesitant to say can now hearclass action lawsuits, because,
(14:27):
look, this was probably alwaysavailable.
It's a little bit of a grayarea.
I remember, actually, when Iwas working at the FMC, this was
a question that kind of came upbut we hadn't necessarily, I
think, at the time been fullyformally asked or hadn't been
tried yet.
But look, it looks like they'regoing through some policy
review and some policystatements.
(14:48):
Maybe somebody asked for this,but they basically came out.
On January 2nd the FMC came outand released the following
information.
I'm just going to read rightoff of their announcement here
and then I'll break off forcommentary as needed.
But it said.
The FMC, the Federal MaritimeCommission, issued a policy
statement today making it clearit is an appropriate venue where
private parties may bring classactions to resolve disputes
(15:11):
covered by the statutes theagency administers to parties
that might otherwise be hesitantto initiate legal actions at
the FMC for fear of retaliationor because the amount of money
in dispute may be less than thecost of litigation for an
individual claimant.
The availability of the classaction mechanism will help
create a more level playingfield for private parties
seeking protection frompotentially unlawful conduct.
(15:34):
So this is interesting becauseI think that it's kind of
providing a way forward.
So there were a lot of large Iguess what I'm thinking is right
there were a lot of largedemurrage bills, that that was
kind of the issue of 2021.
I wonder, if this had been thisstarkly clear, if there may
(15:56):
have been a class action triedduring that time.
I don't know.
I don't know, but butinteresting that the FMC has now
come out and said look, even ifyou have like a small dollar
amount, as we know right the the, there's a case that's on five
hundred dollars.
That went all the way through,and then now it's on appeal at
the at the Court of Appeals andI mean that's only for 500 bucks
(16:19):
guaranteed the litigation of.
Probably the filing fees areprobably more than the $500 at
issue, and so this is kind ofhinging or at least kind of has
that in mind, right?
It says like if you have asmall amount, you may still be
able to kind of pull together asright class actions go.
(16:40):
I'm going to continue on withthis announcement, though it
says today's announcement is acontinuation of efforts by the
commission in recent years toreduce barriers for private
parties private party litigantsseeking redress of potential
shipping act violations.
The commission issued a policystatement in December 2021.
They issue policy statementsfairly regularly although that
(17:01):
was four years ago, three and ahalf making clear that shippers,
associations and tradeassociations can file complaints
on behalf of others allegingviolations of the law.
Did you hear that Shippers,associations and trade
associations can file complaintson behalf of others?
That's interesting.
That's something that came outDecember 2021.
So not necessarily class action, but kind of that pooling idea.
(17:25):
But that was the first thingthat they mentioned in this.
Here's the other things thatwe've done as part of this
announcement.
All right, continuing on withthe announcement, the commission
successfully implemented aprocess for charge complaints,
as set out in the Ocean ShipReform Week of 2022, which
provide individuals with asimplified and expedited way to
challenge some invoices.
More than $3.5 million in feeshave been voluntarily waived or
(17:48):
refunded by common carriersthrough the
Commission-administered chargecomplaints process since June
2022.
Further, the Commission isensuring the timely adjudication
of the record number of pendingproceedings that have been
filed at the Commission inrecent years by adding resources
to the office of theadministrative law judges.
We've talked about that.
I think they had two new ALJsadministrative law judges.
Were they on detail?
(18:10):
I think that's what we said.
I think that they have beendetailed over.
At least one was detailed,maybe they were, but either way,
they brought in two moreadministrative law judges, which
is great, because at one pointin the recent history they only
had one or two ALJs, and so nowI think they might be up to five
, four or five.
That's great.
That's great Because when casescome in especially when their
(18:33):
formal cases come in that arenot small claims cases but just
regular filing the lawsuit atthe FMC they go to the ALJs for
first review.
Right, the ALJ reviews it, goesthrough the whole process, all
that back and forth and you knowall the kind of legalese that
happens, legal procedure, thathappens happens with the ALJ's
(18:54):
office and then the ALJ willdetermine an initial decision.
And then that's when all therest of the agency kind of looks
at it the general counsel looksat it, the other commission
offices look at it, and then ifanybody thinks that there needs
to be more of a review or somesort of maybe larger review, or
just there's something that theydon't want to turn into a final
(19:15):
decision, they'll sua sponte,which means kind of like on
their own efforts, on their ownefforts, um, they'll pull it and
they'll they'll do a SueEsponte review, which means that
now it's going to be all openedup, all of the FMC
commissioners are going to bereviewing it, um, and then
they're going to be likelytaking a vote on it.
So, um, alj creates thatinitial decision and the FMC can
(19:39):
then do a Sue Esponte review,or they can just leave it and
let that initial decision andthe FMC can then do a sua sponte
review, or they can just leaveit and let that initial decision
turn into a final decision.
But all this to kind ofemphasize like how important the
administrative law judges areand how important it is that
they have sufficient numbers ofALJs available, because they're
the ones that are reviewing allthese cases, and they went from
I mean tens of cases to 20s and30s of cases.
(20:02):
I mean that's a double tripleof what they were used to.
So, as we know, the FMC hasbecome a little bit more popular
in the past four years.
I'm going to be interested tosee how the industry reacts,
though, to this class actionlawsuits idea, or I'm going to
be interested to see theprevalence at which it's used
right, we haven't seen a lot oftrade associations using that
(20:24):
policy statement information,but we'll see.
It's nice to have thingsclarified.
I think that ultimately, canstill be clarified through case
law.
Just because these are policystatements doesn't mean that
they can't be challenged throughdifferent ways, because
ultimately, it's Congress andthe Shipping Act and anything
that Congress says is going tobe kind of the law.
(20:45):
But policy statements areimportant because it's at least
something to hang your hat onand guide you as you approach
the FMC.
So interesting.
I'll be interested to see howthat one goes All right.
Story number three Deadlineannounced for required filing of
annual export strategies at theFMC.
So on December 31st, which is aweird day to make an important
(21:06):
announcement.
Right on December 31st, the FMCannounced their deadline for
Ocean Common Carriers to filetheir documented export
strategies.
And you might be like, what is?
What?
Is this documented exportstrategies?
It was a key piece at issue inthe petition against the final
rule.
This is that unreasonablerefusal to deal and negotiate
rule one of the two final ruleslike we've been talking about
(21:27):
that had the petition in frontof it.
There was a requirement of a,uh, documented export strategy,
and so now the FMC has announcedthis deadline for this required
filing of an annual exportstrategy.
That was one of the pieces wehaven't gotten into the subject
matter in the petitions, butthat was one of the things that
(21:48):
was really kind of at issue withthis petition.
Was an export strategy, allright.
So what does the announcementsay?
What does the FMC say on thisannouncement?
Ocean common carriers must filedocumented export strategies
with the FMC beginning March 1st2025, and at least annually
every following year.
It continues to say filingsmust include information on
(22:10):
services offered, markets served, pricing strategies and
equipment provisioning.
The submissions must beprospective in nature, providing
clear information to thecommission about how ocean
carriers will serve the USexport market and multiple
filings in a year are permittedif circumstances warrant.
So if you kind of change yourexport strategy.
The final rule continues ondefinition of unreasonable
(22:31):
fruits of steel and negotiatewith respect to vessel-based
accommodations provided by anocean common carrier.
That's the rule title publishedin July and finalized September
23rd.
Establishes the requirement tofile a documented export
strategy.
That rule was mandated by theOceanship Reform Act of 2022.
Continuing on, it says, whilethe final rule has been in
(22:51):
effect for almost five months,approval for the commission to
collect export strategy filingswas required from the Office of
Management and Budget.
This was provided earlier thisfall, clearing the way for
establishing this reportingdeadline.
So it's kind of like why nowthey basically had to get OMB
approval to requiredocumentation filing?
So this is like I said, this iskind of a funky one.
(23:13):
Funky one.
The question is are theyoverstepping?
I think kind of the essence ofthe question for the petition is
are they overstepping having torequire documented export
strategies?
And this, remember, this kind ofall goes back to when OSHA,
superinforma Act of 2022, beforeit became that, it was over in
the House side and it was veryexport heavy.
(23:35):
It was very focused onexporters kind of getting
totally, totally left behind,right.
We were having these pop-upcarriers coming into the market.
They were just trying to getpart of those $20,000 rates that
go from Asia to the US WestCoast during that kind of 2020,
2021 congestion years.
And we were seeing, sometimesthey were kind of turning and
(23:58):
burning and leaving withoutactually filled exports.
And so the export community wassaying, look, you have to take
my stuff.
Like you are unreasonablyrefusing my stuff.
Not only should this be a tradebalance, it's kind of a
national thing, but it kind ofgoes against the requirements of
the Shipping Act.
So unreasonably refusal to dealso that's what this one kind of
(24:20):
hinges on.
I think this is still kind of anod back to export-focused.
What we ultimately saw in theOcean Shipping Reform Act was
kind of a balance of.
It didn't highlight export orimport necessarily.
It just kind of was a littlebit more across the board.
And that's why we saw adefinition of unreasonable
refusal to deal and negotiatewith respect to bus space
accommodations.
That originally was forexporters.
(24:42):
It got expanded to importersbecause unreasonable refusal to
deal and negotiate is kind ofalways a bad thing, right, this
is the definition of it.
It's prohibited under theShipping Act anyways.
So that's what is kind ofhappening here.
I'll keep watching this becausethis is one of the pieces of
that unreasonable refusal tonegotiate definition rule that
(25:05):
has always sat a little off withme, at least.
I would just want a little bitmore justification on it,
because we're going to berequiring companies to provide
their documented export strategy.
Be requiring companies toprovide their documented export
strategy, that's kind of like abusiness decision then likely to
change.
I'm just the level of detailthat's required.
(25:27):
I'm interested to see kind ofhow this turns into real life
application.
But we'll see.
I'm interested to see how thisgoes.
All right, those are the topthree stories of the week.
Let's get into the main pagesof the day.
So the InternationalLongshoremen's Association and
the US Maritime Alliance havecome to an agreement, tentative
agreement, and I only say thatbecause the rank and file, as
(25:48):
they say, still have to vote andapprove it.
But look, all indications thatI see are that they will, and it
seems like the ILA is actuallydoing a victory lap, certainly
on their Facebook page and ontheir members tagging the ILA
main page.
So, as you recall, in Decemberthere was a shakeup of the
negotiations right, we weren'tsure which side President-elect
Trump, now that he had beenelected, was going to come out
(26:11):
on.
And he came out not only once,but twice in support of the ILA,
once through his own post andthen again by reposting one of
the ILA posts.
And it seems so funny to liketalk about Facebook posting, but
that's where the ILA has beendoing most of their official
announcements.
So here we are.
So I want to mention and Idon't think that I said this
(26:32):
before, but or I don't thinkthat this was actually said
before in general general.
But in a recent statement ofpraise from the ILA on Facebook,
of course to President Trump,they said that President Trump
actually contacted the USMaritime Alliance officials on
the phone during that meeting,when he was sitting there
meeting with the ILA, withHarold Daggett and Dennis
Daggett in Mar-a-Lago.
(26:53):
Apparently he called them onthe phone at that time.
I don't think they had saidthat before.
That's kind of wild too.
So like, not only did he comeout publicly, but they kind of
had like a mini-negotiation atthat moment, that's.
I mean, perhaps that startedthe laying of the stage here.
So look when that happened,when Trump came out and backed
(27:17):
the ILA, many in the industrykind of automatically said like
guaranteed strike.
Look, here we go, we're goingstraight to a strike.
If you listen to this podcastregularly, you know that I've
often kind of hummed and hawed.
I was cautiously farley on theother side.
I actually mentioned that Ithought that this could
potentially turn out to bereally great news.
(27:39):
I didn't elaborate much on itand mostly I was kind of
pointing to the advanceddiscussions taking place as one
of those key reasons.
Right, the fact that all thosediscussions were happening mid
to early December was a greatthing in my book, because we
didn't hear much talk about anysort of administrative or kind
of presidential level, high upexecutive level coming in and
(28:03):
having these sit downs untillike the 11th hour Right Before
like the end of September.
So I was so hopeful becausethis is happening one month in
advance.
One of the other reasons that Ididn't really didn't really talk
about because this is a littlebit more like playing to
personalities I was optimisticwith was that with the incoming
(28:23):
president aligning with HaroldDaggett, with President-elect
Trump aligning with HaroldDaggett here in the ILA, he was
giving Harold the opportunity tobroadcast his support on
Facebook and essentially kind ofclaiming, like that's my guy
Right, like he had just won, andnow Harold Daggett gets to kind
of align with him.
This alignment kind of probablyalso positioned Harold for this
win-win scenario right Like nomatter what the outcome, no
(28:45):
matter where they came out onautomation or technology
advances or semi-automation, hecould still frame it in his
favor by kind of saying look,even the art of the deal guy
believes that this is a goodidea.
That's kind of what I wasthinking, right Like this
association kind of gave Haroldadded credibility and allowed
him to lean on the incomingpresident's reputation as a
(29:06):
strategic negotiator.
It signaled to his audiencethat the plan was not only
viable but also had theendorsement of somebody
perceived as this, like masterof complex deals guy, I mean.
To me that kind of all playedinto this bolstering of his own
standing and influence and kindof made it a winning thing.
And that's, I think, what we'reseeing now, too, is we see
(29:30):
Harold Daggett, president of theInternational Longshoremen's
Association, publicly creditingpresident-elect Donald Trump for
his support in thesenegotiations.
Daggett said that Trump'sbacking was instrumental in
helping the union secure afavorable tentative agreement
preventing this potential portstrike, and he also referred to
Trump as and this is in hisannouncement on Facebook one of
(29:53):
the greatest friends oforganized labor and champion of
the working men and women ofthis country, and he gave him
full credit for the successfuloutcome.
I mean, this is, this is a bigdeal, right?
So that was something that Iwas kind of I said I said a few
times, but I don't think I saidit on the podcast.
I saw all of that alignment askind of a personality alignment
(30:15):
thing and, and to me I feltpretty confident that we weren't
going to be going to a strike.
You never know.
I still never knew there were amillion different things that
could happen and so I didn'twant to come out with kind of
these wild I feel good umassertions because you never
know, you never know.
Uh, but what?
One of the things that was inthis announcement of the ILA on
(30:39):
their Facebook page talkingabout President Trump being
helping to secure the greatestcontract, they say.
President Trump clearlydemonstrated his unwavering
support for our ILA union andlongshore workers with a
statement heard around the worldwhich is one of Harold's kind
of statements Right, backing ourposition to protect American
longshore jobs against theravages of automated terminals,
(31:01):
said ILA President Daggett.
President Trump's bold stancehelped prevent a second
coast-wide strike at ports fromMaine to Texas.
That would have occurred onJanuary 15th.
It would have occurred onJanuary 16th.
Right, because it would haveexpired January 15th if a
tentative agreement was notreached.
The specific terms of theagreement are still not known,
so be careful, right?
Be careful when people arestarting to say what's in the
(31:23):
deal.
Right, because the announcementon the ILA's Facebook page, and
certainly kind of the jointstatement, was details of the
new tentative agreement will notbe released to allow ILA rank
and file members and US MaritimeAlliance members to review and
approve the final document.
However, what we do know isthat, and I quote, this
(31:44):
agreement protects current ILAjobs and establishes a framework
for implementing technologiesthat will create more jobs while
modernizing East and Gulf Coastports, making them safer and
more efficient and creating thecapacity they need to keep our
supply chain strong.
So we also had a recent updateyesterday from the ILA's
Facebook page again saying thatthe deal resulted in a package
that calls for a 62% wageincrease.
(32:06):
Now, remember it was 66% beforethey went into.
That was the interim agreement.
I remember it was a 66% wageincrease.
Now we're talking about a 62percent wage increase, and then
it continues on to say ironcladprotections against automation
and semi-automation at LA portsand a stronger health care and
retirement package among manygains.
(32:27):
So there was talk of a secretmeeting.
Look, I don't think that it wasa secret meeting necessarily.
I think that it was just apre-deliberation.
That happens with negotiationsall the time, right, I think
that they just probably had asmaller conversation about okay,
let's hash out some of thislanguage.
What we heard about during thatpre-deliberation secret meeting
(32:48):
was that, look, there needed tobe new jobs created for any new
technology, new jobs createdfor any new technology.
My guess is that's likely.
What we're going to see in thefinal agreement and in this new
master contract is that for allnew tech developed, there's
going to be new jobs created.
That was kind of one of thetenants, I guess, of that secret
meeting.
So we'll see, we'll see.
(33:09):
That's kind of all we know.
We're getting trickled down,trickling of information here
from these public postings, butreally, what we know, right, it
looks like 62% increase and theyhave agreed to some sort of
technology slash automation,slash, semi-automation agreement
but they're moving forwardonwards to 2030.
(33:33):
Like it's a six-year mastercontract.
So 2030 is the next time we'regoing to be talking about this,
unless we have any extensions.
Sometimes that happens.
That's kind of what happenedleading up to this one.
Uh, this was supposed to expire, what was it?
2019.
They extended it three years.
Then that put us to 20.
Uh, 23, 22.
Um, is that right?
(33:54):
Am I doing my math wrong?
Either way, if that was anextension, that happened,
hopefully we don't have anyextensions.
Hopefully they start theseconversations well in advance.
But sometimes that happens.
All right, as always, theguidance here is general, for
educational purposes only.
It should not be considered tobe legal advice directly related
to your matter.
If you need an attorney,contact an attorney, but if you
have specific legal questions,feel free to reach out to me at
(34:16):
my legal company, SquallStrategies.
We'll be back again next week.
Otherwise, for the non-legalquestions, the e-learning and
general industry information andinsights, come find me at the
Maritime Professor.
If you like these videos, letme know, comment, like and share
.
If you want to listen to theseepisodes on demand, or if you
missed any previous episodes,check out the podcast by Landon
B Sea.
If you prefer to see thesevideos, they live on my YouTube
page by Landon by Sea, presentedby the Maritime Professor.
(34:38):
While you're at it, check outthe webpage
themaritimeprofessorcom.
I have plans for 2025 for theMaritime Professor, so get on
that email chain.
So until next week.
This is Lauren Began, theMaritime Professor.
We just got our trademarkregistration, by the way, and
you've just listened to byLandon by Sea.
See you next time.
Oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh,
oh, oh, oh, oh, oh, oh, oh, oh,oh, oh, oh, oh, oh, oh, oh, oh,
oh, oh, oh, oh, oh, oh, oh, oh,oh, oh, oh, oh, oh, oh, oh, oh,
oh, oh, oh, oh, oh, oh, oh, oh,oh, oh, oh, oh, oh, oh, oh, oh,
oh, oh.
Oh, I got soul coming through.
Won't stop in the piece and ontop of the world.
Yeah, walk to the beat when yousee me, come and make some room
.
Oh, everywhere I go, I'm in thespotlight.
This is a good life.
Oh, I'm living bold.
This is what it looks like.
I'm addicted to the world.
(00:49):
The drama's over.
The International Longshoremen'sAssociation and the United
States Maritime Alliance havecome to an agreement, or have
they?
Well, yes, but it still needsto be voted on in their
(01:10):
respective organizations.
We're going to break it down.
Stick around.
Hi, welcome to, by Land and bySea, an attorney breaking down
the weekend supply chainpresented by the Maritime
Professor Me.
I'm Lauren Began, founder ofthe Maritime Professor and
Squall Strategies, and I'm yourfavorite maritime attorney.
Join me every week as we walkthrough both ocean transport and
surface transport topics andthe wild world of supply chain.
(01:32):
As always, the guidance here isgeneral and for educational
purposes only.
It should not be construed tobe legal advice and there's no
attorney-client privilegecreated by this video or this
podcast.
If you need an attorney,contact an attorney.
So before we get into thediscussion of the day, let's go
through my top three stories ofthe week.
All right, story number onelet's just kind of recap all
(01:52):
things FMC, right.
So things that we're watching,things that we talked about
before the holiday break, wehave no real new updates,
luckily, on a lot of therulemaking areas, right.
So we were watching in 2024, wehad the final rule on the
detention of marriage billingpractices and we had the final
(02:13):
rule on unreasonable result todeal and negotiate with respect
to vessel space accommodations.
Both of those were finalized.
Both of those have become lostregulatory law.
They are out there, they're inthe wild.
The industry has picked them upand they're using law.
They are out there, they're inthe wild, the industry has
picked them up and they're usingthem.
They both have found themselveswith a petition against them.
So we've been watching that andthere's no real new.
(02:36):
I'm going to get into thepetitions in a minute, but
there's no real new updates onthe petitions right now.
There might be some movement inthe month of January, so I'm
going to be watching for that.
But then also the other thingthat we're watching there's an
open position at the FMC for acommissioner.
We haven't heard a name yet.
There has not been a name putout there publicly.
(02:56):
There's a few names kind offloating around, one that seems
to be rising to the top, but Ihave not found anything publicly
available confirming a namesaying that this person is going
into the open commissioner spot.
So, as we know, commissionerCarl Bensel has left the FMC.
He left during what was it?
Mid-december to go over toNational Waterfront, national
(03:20):
Association of WaterfrontEmployers, and so we have an
open commissioner spot that willbe now going to a Republican
because, as we've talked aboutmany times, the FMC stays three
of one party, two of the other,and so, with a Democrat leaving,
that kind of rebalances it to atwo and two right now of
commissioners that are at theFMC.
So in order to get that thirdmajority side, we have the
(03:44):
Republican coming in under thatthird Republican commissioner
slot.
I haven't heard anythingconclusively there, but there is
a name that's floating up there.
I'm not quite comfortable yetto put it out on the podcast,
but there is a name that seemsto have been floating for the
past few months and now seems tobe floating kind of by by the
man, by himself, at the top here.
(04:04):
So, um, we'll see.
I also haven't heard anythingabout the chairmanship.
Uh, we have heard a lot ofsupport for commissioner rebecca
die.
I think she would be aphenomenal, uh, chairman, and I
say that because she's beenthere for so long and she just
understands the, the regulatorypurview of the fmc, the
jurisdictional limitations, butalso also jurisdictional kind of
(04:25):
authorities that the FMCactually does have.
She's been there since 2002.
So she's been there for I meannow it's a flip of the calendar
right 23 years.
She knows and she's not justkind of like a lame duck 23 year
.
She has been active pretty muchall of those years that she's
been there in a way that haspositioned her to be such a good
(04:46):
facilitator, referee, kind ofthe top spot at the FMC.
So I would love to see herthere.
We'll see, we'll see who endsup.
Because the other thing thatI've heard as a potential
possibility is maybe this wholeshake up of everything falls
(05:07):
into the FMC as well, and we may.
It wouldn't be the wildestthing to have somebody who is
not already at the FMC come inunder this new commissioner spot
and then come in and be thechairman.
I don't know if that's theright move, because the FMC
really does have such nuanced,such specific jurisdictional
(05:27):
authorities.
It's such a unique agency as weknow, right, it's an
independent regulatory agency,similar to Federal
Communications Commission.
So, right, any of the kind ofother commissions.
There's just such a specificnuance that the FMC covers in
its promotion of the US Well,not promotion, excuse me.
(05:49):
It's the movement of protectingthe US consumer, us importer,
exporter and consumer for thefreight and flow and fluidity.
I'm jumping, I'm tumbling allover the mission statement that
usually rolls off my tongue.
So you've heard me say itbefore.
I'm not going to keep mumblingthrough it.
(06:10):
But what we have here is theFMC is such a specific, nuanced
agency and my point beingChairman Dye.
A Chairman Dye would be, I think, a good thing, even though she
wouldn't be a newbie coming intothe scene kind of part of this
disruptor theme I think that shewould be really helpful to have
(06:32):
that institutional knowledge.
I don't think that she has justsat there and enjoyed the
longevity she's had there inkind of a passive way.
She's always been active in theindustry, pushing forward not
from a government-led orgovernment intervention way, but
a government facilitator way, Ithink, but then also making
(06:55):
sure that the competition isfair.
This is turning into apotential chairman dive pitch.
I think she'd be phenomenal.
I hope to see her.
If we don't, I'll keepfollowing it and I'll let you
know what I think about'd bephenomenal.
I hope to see her.
If we don't, I'll keepfollowing it and I'll let you
know what I think about whoeverit might be If it's not her.
Um, I didn't mentioncommissioner Lou Sola as a
potential for the chairmanshiponly because we've talked about
(07:15):
it on this podcast before hewrote a letter in full support
of commissioner die becoming uhbeing appointed to that chairman
position.
So I think in that letter,twofold one.
Obviously it promotescommissioner die.
I think that he has arelationship probably a good
relationship with uh, withpresident-elect trump, because
they're both from florida, um,and, and I've kind of heard that
(07:38):
.
But then also I think that italso takes his name off the
running right.
If he's promoting somebody else, you're probably not going to
give it to him.
So I think it's either the tobe named commissioner or
potentially, hopefully,commissioner Dye, who will be
going into that chairmanshipposition, but we haven't heard
anything.
So, yeah, we do anticipate anew rulemaking coming through in
(08:00):
2025.
We talked about this a few times, but this is that charge
complaint.
We have a interim procedurethat's been created from OSRA 22
, the Ocean Superior Reform Actof 2022 that Congress created.
They said that this needed tobe a process that the FMC had
available.
So the FMC had to I mean uponsignature right so June 16, 2022
(08:21):
, the FMC had to quickly figureout how they're going to
entertain these chargecomplaints.
But what also needs to happenin this charge complaints
process is there needs to be afull, formal rulemaking
associated with it.
What rulemakings really are isan opportunity for the public to
engage in the process, right?
This isn't just an agencydoling out a rulemaking.
(08:44):
This is an agency, depending onwhat stage they start with, but
there's going to be a commentperiod, and so there will likely
be a comment period that isasking for feedback on statute
of limitations that have to dowith charge complaints,
potentially even what chargesare part of charge complaints.
(09:04):
Is it only detention to merge?
It seems like we've seen mostlydetention to merge.
Can it be other charges?
It has to be violations of theShipping Act, but can it be
other charges?
Can it be assessorial chargesor just kind of these work
disruption charges that we sawcome through?
Is that something that could beentertained under the charge
complaints process?
I think that's going to be oneof the questions that's going to
(09:25):
come up in the rulemaking.
We're going to see a fewdifferent areas.
We'll probably see, I wouldexpect.
So there's kind of twodifferent routes that they could
take.
They could go with the advancednotice of proposed rulemaking,
the FMC, which is really wherethey ask questions of the
industry, kind of we have someideas, but what do you think,
versus a notice of proposedrulemaking, which is where they
kind of present some text.
I can imagine we're probablygoing to be on the second side,
(09:46):
that notice of proposedrulemaking, that NPRM, because
they already have an interimprocess.
They're just trying to refineit.
So I think they'll probablycome out with here's the text
that we're proposing for thisregulation.
What do you think?
Here's some areas that we wantsome specific input on.
So I don't know, we'll probablysee that.
I mean, right, it's all goingto be kind of pursuant to the
(10:07):
chairman coming in, but nomatter what, they have to do
this.
So I would guess, maybe April,may that we'll probably see
something on this just to kindof keep things moving and keep
this trucking along, becausethis hasn't been a surprise.
This is something since June 16, 2022, when they created that
interim process, that they'vealso been thinking about.
(10:28):
Well, what does the rulemakingside of things look like?
And this is something that thegeneral counsel of the FMC
brought up in one of thosemeetings, one of the commission
meetings I think it was Augustor sometime around then end of
summer, early fall.
So I'll be on the lookout forthat.
I'll let you know when I seethat hit any sort of once it
hits the federal register.
So no new updates, like I saidon the petitions, but let's kind
(10:49):
of go over where we are withthe petitions.
So we have the two final rulesright.
So we have the detention tomerge billing practices.
That's the first one that has apetition.
That was started April 18th.
That rule became final at theend of May, so that petition
actually came before thefinality of that rule.
As we know, the court didn'tstop that rule from going into
effect.
So the D&D rule, the D&Dbilling practices rule, is a
(11:12):
real rule, but right now they'restill kind of going through and
we've been talking about thiskind of standing issues and
lacking authority.
There's kind of some legalprocedural things that are kind
of baseline baseline, notnon-subject matter.
Um, if we do get to the subjectmatter in this petition, uh and
and petitions take a while,right.
(11:33):
So I think that we're going tobe looking at direct contractual
relationships and really thathinging on the motor carriers
and their inability, um, theinability to directly bill motor
carriers or or another way,really is taking motor carriers
out of those who have to pay.
They can pay, but the FMCreally made a point of saying
direct contractual relationshipand motor carriers are not part
(11:55):
of that direct contractualrelationship as it relates to
detention, demerge billingthat's on petition, not
necessarily yet, but the subjectmatter, I guess the argument is
that there are some directcontractual relationships that
may include motor carriers, andso that's, I think, what the
World Shipping Council willeventually get to.
(12:16):
The interesting development thathappened, what was it?
Early December, I thinkDecember 9th, we had a whole
bunch of trucking associationsjoined with the AGTC Agriculture
Transportation Coalition,basically filing an amicus
curiae brief saying that theyhad some thoughts too.
They said that they.
(12:37):
What did they say?
So they basically came out andsaid that they, if I remember
correctly I don't have any noteson this, but it had to do with
they.
I think I didn't pull my notesover for this one, but, the
point being, the truckersentered the chat.
(13:04):
I think that this is somethingthat you should go check out.
If you're not aware, you canactually pull this case on Pacer
.
It's a publicly accessed site.
You may have to pay like 10cents to actually pull some of
these documents, but you canaccess these dockets yourself.
It's under the US Court ofAppeals for the DC Circuit and
(13:24):
you can find these docketsyourself.
But look, because that casereally kind of hinges on motor
carriers and their inability orthe direct contractual
relationship and so, therefore,taking the motor carriers out of
the direct contractualrelationship, billing required
parties, it makes sense thatthey'd want to weigh in.
So take a look at that.
The other petition that we'refollowing the unreasonable
(13:44):
refusal to negotiate withrespect to vessels-based
accommodations.
No movement there either.
Look, this is still kind ofgoing back on standing, lack of
standing.
Can the council, the WorldShipping Council bring the suit
on behalf of its members, orshould the carriers have brought
the suit directly themselves?
That's kind of where we lastleft it when we were watching.
But I think we're going to seesome filings of both this
(14:05):
petition and the other petitionduring the month of January.
There's some deadlines that arehappening during this month, so
I'll keep watching.
I'll let you know when I seeany movements there.
Story number two that was alonger story number one than I
was expecting it to be.
But story number two FMC canhear class action lawsuits and
I'm hesitant to say can now hearclass action lawsuits, because,
(14:27):
look, this was probably alwaysavailable.
It's a little bit of a grayarea.
I remember, actually, when Iwas working at the FMC, this was
a question that kind of came upbut we hadn't necessarily, I
think, at the time been fullyformally asked or hadn't been
tried yet.
But look, it looks like they'regoing through some policy
review and some policystatements.
(14:48):
Maybe somebody asked for this,but they basically came out.
On January 2nd the FMC came outand released the following
information.
I'm just going to read rightoff of their announcement here
and then I'll break off forcommentary as needed.
But it said.
The FMC, the Federal MaritimeCommission, issued a policy
statement today making it clearit is an appropriate venue where
private parties may bring classactions to resolve disputes
(15:11):
covered by the statutes theagency administers to parties
that might otherwise be hesitantto initiate legal actions at
the FMC for fear of retaliationor because the amount of money
in dispute may be less than thecost of litigation for an
individual claimant.
The availability of the classaction mechanism will help
create a more level playingfield for private parties
seeking protection frompotentially unlawful conduct.
(15:34):
So this is interesting becauseI think that it's kind of
providing a way forward.
So there were a lot of large Iguess what I'm thinking is right
there were a lot of largedemurrage bills, that that was
kind of the issue of 2021.
I wonder, if this had been thisstarkly clear, if there may
(15:56):
have been a class action triedduring that time.
I don't know.
I don't know, but butinteresting that the FMC has now
come out and said look, even ifyou have like a small dollar
amount, as we know right the the, there's a case that's on five
hundred dollars.
That went all the way through,and then now it's on appeal at
the at the Court of Appeals andI mean that's only for 500 bucks
(16:19):
guaranteed the litigation of.
Probably the filing fees areprobably more than the $500 at
issue, and so this is kind ofhinging or at least kind of has
that in mind, right?
It says like if you have asmall amount, you may still be
able to kind of pull together asright class actions go.
(16:40):
I'm going to continue on withthis announcement, though it
says today's announcement is acontinuation of efforts by the
commission in recent years toreduce barriers for private
parties private party litigantsseeking redress of potential
shipping act violations.
The commission issued a policystatement in December 2021.
They issue policy statementsfairly regularly although that
(17:01):
was four years ago, three and ahalf making clear that shippers,
associations and tradeassociations can file complaints
on behalf of others allegingviolations of the law.
Did you hear that Shippers,associations and trade
associations can file complaintson behalf of others?
That's interesting.
That's something that came outDecember 2021.
So not necessarily class action, but kind of that pooling idea.
(17:25):
But that was the first thingthat they mentioned in this.
Here's the other things thatwe've done as part of this
announcement.
All right, continuing on withthe announcement, the commission
successfully implemented aprocess for charge complaints,
as set out in the Ocean ShipReform Week of 2022, which
provide individuals with asimplified and expedited way to
challenge some invoices.
More than $3.5 million in feeshave been voluntarily waived or
(17:48):
refunded by common carriersthrough the
Commission-administered chargecomplaints process since June
2022.
Further, the Commission isensuring the timely adjudication
of the record number of pendingproceedings that have been
filed at the Commission inrecent years by adding resources
to the office of theadministrative law judges.
We've talked about that.
I think they had two new ALJsadministrative law judges.
Were they on detail?
(18:10):
I think that's what we said.
I think that they have beendetailed over.
At least one was detailed,maybe they were, but either way,
they brought in two moreadministrative law judges, which
is great, because at one pointin the recent history they only
had one or two ALJs, and so nowI think they might be up to five
, four or five.
That's great.
That's great Because when casescome in especially when their
(18:33):
formal cases come in that arenot small claims cases but just
regular filing the lawsuit atthe FMC they go to the ALJs for
first review.
Right, the ALJ reviews it, goesthrough the whole process, all
that back and forth and you knowall the kind of legalese that
happens, legal procedure, thathappens happens with the ALJ's
(18:54):
office and then the ALJ willdetermine an initial decision.
And then that's when all therest of the agency kind of looks
at it the general counsel looksat it, the other commission
offices look at it, and then ifanybody thinks that there needs
to be more of a review or somesort of maybe larger review, or
just there's something that theydon't want to turn into a final
(19:15):
decision, they'll sua sponte,which means kind of like on
their own efforts, on their ownefforts, um, they'll pull it and
they'll they'll do a SueEsponte review, which means that
now it's going to be all openedup, all of the FMC
commissioners are going to bereviewing it, um, and then
they're going to be likelytaking a vote on it.
So, um, alj creates thatinitial decision and the FMC can
(19:39):
then do a Sue Esponte review,or they can just leave it and
let that initial decision andthe FMC can then do a sua sponte
review, or they can just leaveit and let that initial decision
turn into a final decision.
But all this to kind ofemphasize like how important the
administrative law judges areand how important it is that
they have sufficient numbers ofALJs available, because they're
the ones that are reviewing allthese cases, and they went from
I mean tens of cases to 20s and30s of cases.
(20:02):
I mean that's a double tripleof what they were used to.
So, as we know, the FMC hasbecome a little bit more popular
in the past four years.
I'm going to be interested tosee how the industry reacts,
though, to this class actionlawsuits idea, or I'm going to
be interested to see theprevalence at which it's used
right, we haven't seen a lot oftrade associations using that
(20:24):
policy statement information,but we'll see.
It's nice to have thingsclarified.
I think that ultimately, canstill be clarified through case
law.
Just because these are policystatements doesn't mean that
they can't be challenged throughdifferent ways, because
ultimately, it's Congress andthe Shipping Act and anything
that Congress says is going tobe kind of the law.
(20:45):
But policy statements areimportant because it's at least
something to hang your hat onand guide you as you approach
the FMC.
So interesting.
I'll be interested to see howthat one goes All right.
Story number three Deadlineannounced for required filing of
annual export strategies at theFMC.
So on December 31st, which is aweird day to make an important
(21:06):
announcement.
Right on December 31st, the FMCannounced their deadline for
Ocean Common Carriers to filetheir documented export
strategies.
And you might be like, what is?
What?
Is this documented exportstrategies?
It was a key piece at issue inthe petition against the final
rule.
This is that unreasonablerefusal to deal and negotiate
rule one of the two final ruleslike we've been talking about
(21:27):
that had the petition in frontof it.
There was a requirement of a,uh, documented export strategy,
and so now the FMC has announcedthis deadline for this required
filing of an annual exportstrategy.
That was one of the pieces wehaven't gotten into the subject
matter in the petitions, butthat was one of the things that
(21:48):
was really kind of at issue withthis petition.
Was an export strategy, allright.
So what does the announcementsay?
What does the FMC say on thisannouncement?
Ocean common carriers must filedocumented export strategies
with the FMC beginning March 1st2025, and at least annually
every following year.
It continues to say filingsmust include information on
(22:10):
services offered, markets served, pricing strategies and
equipment provisioning.
The submissions must beprospective in nature, providing
clear information to thecommission about how ocean
carriers will serve the USexport market and multiple
filings in a year are permittedif circumstances warrant.
So if you kind of change yourexport strategy.
The final rule continues ondefinition of unreasonable
(22:31):
fruits of steel and negotiatewith respect to vessel-based
accommodations provided by anocean common carrier.
That's the rule title publishedin July and finalized September
23rd.
Establishes the requirement tofile a documented export
strategy.
That rule was mandated by theOceanship Reform Act of 2022.
Continuing on, it says, whilethe final rule has been in
(22:51):
effect for almost five months,approval for the commission to
collect export strategy filingswas required from the Office of
Management and Budget.
This was provided earlier thisfall, clearing the way for
establishing this reportingdeadline.
So it's kind of like why nowthey basically had to get OMB
approval to requiredocumentation filing?
So this is like I said, this iskind of a funky one.
(23:13):
Funky one.
The question is are theyoverstepping?
I think kind of the essence ofthe question for the petition is
are they overstepping having torequire documented export
strategies?
And this, remember, this kind ofall goes back to when OSHA,
superinforma Act of 2022, beforeit became that, it was over in
the House side and it was veryexport heavy.
(23:35):
It was very focused onexporters kind of getting
totally, totally left behind,right.
We were having these pop-upcarriers coming into the market.
They were just trying to getpart of those $20,000 rates that
go from Asia to the US WestCoast during that kind of 2020,
2021 congestion years.
And we were seeing, sometimesthey were kind of turning and
(23:58):
burning and leaving withoutactually filled exports.
And so the export community wassaying, look, you have to take
my stuff.
Like you are unreasonablyrefusing my stuff.
Not only should this be a tradebalance, it's kind of a
national thing, but it kind ofgoes against the requirements of
the Shipping Act.
So unreasonably refusal to dealso that's what this one kind of
(24:20):
hinges on.
I think this is still kind of anod back to export-focused.
What we ultimately saw in theOcean Shipping Reform Act was
kind of a balance of.
It didn't highlight export orimport necessarily.
It just kind of was a littlebit more across the board.
And that's why we saw adefinition of unreasonable
refusal to deal and negotiatewith respect to bus space
accommodations.
That originally was forexporters.
(24:42):
It got expanded to importersbecause unreasonable refusal to
deal and negotiate is kind ofalways a bad thing, right, this
is the definition of it.
It's prohibited under theShipping Act anyways.
So that's what is kind ofhappening here.
I'll keep watching this becausethis is one of the pieces of
that unreasonable refusal tonegotiate definition rule that
(25:05):
has always sat a little off withme, at least.
I would just want a little bitmore justification on it,
because we're going to berequiring companies to provide
their documented export strategy.
Be requiring companies toprovide their documented export
strategy, that's kind of like abusiness decision then likely to
change.
I'm just the level of detailthat's required.
(25:27):
I'm interested to see kind ofhow this turns into real life
application.
But we'll see.
I'm interested to see how thisgoes.
All right, those are the topthree stories of the week.
Let's get into the main pagesof the day.
So the InternationalLongshoremen's Association and
the US Maritime Alliance havecome to an agreement, tentative
agreement, and I only say thatbecause the rank and file, as
(25:48):
they say, still have to vote andapprove it.
But look, all indications thatI see are that they will, and it
seems like the ILA is actuallydoing a victory lap, certainly
on their Facebook page and ontheir members tagging the ILA
main page.
So, as you recall, in Decemberthere was a shakeup of the
negotiations right, we weren'tsure which side President-elect
Trump, now that he had beenelected, was going to come out
(26:11):
on.
And he came out not only once,but twice in support of the ILA,
once through his own post andthen again by reposting one of
the ILA posts.
And it seems so funny to liketalk about Facebook posting, but
that's where the ILA has beendoing most of their official
announcements.
So here we are.
So I want to mention and Idon't think that I said this
(26:32):
before, but or I don't thinkthat this was actually said
before in general general.
But in a recent statement ofpraise from the ILA on Facebook,
of course to President Trump,they said that President Trump
actually contacted the USMaritime Alliance officials on
the phone during that meeting,when he was sitting there
meeting with the ILA, withHarold Daggett and Dennis
Daggett in Mar-a-Lago.
(26:53):
Apparently he called them onthe phone at that time.
I don't think they had saidthat before.
That's kind of wild too.
So like, not only did he comeout publicly, but they kind of
had like a mini-negotiation atthat moment, that's.
I mean, perhaps that startedthe laying of the stage here.
So look when that happened,when Trump came out and backed
(27:17):
the ILA, many in the industrykind of automatically said like
guaranteed strike.
Look, here we go, we're goingstraight to a strike.
If you listen to this podcastregularly, you know that I've
often kind of hummed and hawed.
I was cautiously farley on theother side.
I actually mentioned that Ithought that this could
potentially turn out to bereally great news.
(27:39):
I didn't elaborate much on itand mostly I was kind of
pointing to the advanceddiscussions taking place as one
of those key reasons.
Right, the fact that all thosediscussions were happening mid
to early December was a greatthing in my book, because we
didn't hear much talk about anysort of administrative or kind
of presidential level, high upexecutive level coming in and
(28:03):
having these sit downs untillike the 11th hour Right Before
like the end of September.
So I was so hopeful becausethis is happening one month in
advance.
One of the other reasons that Ididn't really didn't really talk
about because this is a littlebit more like playing to
personalities I was optimisticwith was that with the incoming
(28:23):
president aligning with HaroldDaggett, with President-elect
Trump aligning with HaroldDaggett here in the ILA, he was
giving Harold the opportunity tobroadcast his support on
Facebook and essentially kind ofclaiming, like that's my guy
Right, like he had just won, andnow Harold Daggett gets to kind
of align with him.
This alignment kind of probablyalso positioned Harold for this
win-win scenario right Like nomatter what the outcome, no
(28:45):
matter where they came out onautomation or technology
advances or semi-automation, hecould still frame it in his
favor by kind of saying look,even the art of the deal guy
believes that this is a goodidea.
That's kind of what I wasthinking, right Like this
association kind of gave Haroldadded credibility and allowed
him to lean on the incomingpresident's reputation as a
(29:06):
strategic negotiator.
It signaled to his audiencethat the plan was not only
viable but also had theendorsement of somebody
perceived as this, like masterof complex deals guy, I mean.
To me that kind of all playedinto this bolstering of his own
standing and influence and kindof made it a winning thing.
And that's, I think, what we'reseeing now, too, is we see
(29:30):
Harold Daggett, president of theInternational Longshoremen's
Association, publicly creditingpresident-elect Donald Trump for
his support in thesenegotiations.
Daggett said that Trump'sbacking was instrumental in
helping the union secure afavorable tentative agreement
preventing this potential portstrike, and he also referred to
Trump as and this is in hisannouncement on Facebook one of
(29:53):
the greatest friends oforganized labor and champion of
the working men and women ofthis country, and he gave him
full credit for the successfuloutcome.
I mean, this is, this is a bigdeal, right?
So that was something that Iwas kind of I said I said a few
times, but I don't think I saidit on the podcast.
I saw all of that alignment askind of a personality alignment
(30:15):
thing and, and to me I feltpretty confident that we weren't
going to be going to a strike.
You never know.
I still never knew there were amillion different things that
could happen and so I didn'twant to come out with kind of
these wild I feel good umassertions because you never
know, you never know.
Uh, but what?
One of the things that was inthis announcement of the ILA on
(30:39):
their Facebook page talkingabout President Trump being
helping to secure the greatestcontract, they say.
President Trump clearlydemonstrated his unwavering
support for our ILA union andlongshore workers with a
statement heard around the worldwhich is one of Harold's kind
of statements Right, backing ourposition to protect American
longshore jobs against theravages of automated terminals,
(31:01):
said ILA President Daggett.
President Trump's bold stancehelped prevent a second
coast-wide strike at ports fromMaine to Texas.
That would have occurred onJanuary 15th.
It would have occurred onJanuary 16th.
Right, because it would haveexpired January 15th if a
tentative agreement was notreached.
The specific terms of theagreement are still not known,
so be careful, right?
Be careful when people arestarting to say what's in the
(31:23):
deal.
Right, because the announcementon the ILA's Facebook page, and
certainly kind of the jointstatement, was details of the
new tentative agreement will notbe released to allow ILA rank
and file members and US MaritimeAlliance members to review and
approve the final document.
However, what we do know isthat, and I quote, this
(31:44):
agreement protects current ILAjobs and establishes a framework
for implementing technologiesthat will create more jobs while
modernizing East and Gulf Coastports, making them safer and
more efficient and creating thecapacity they need to keep our
supply chain strong.
So we also had a recent updateyesterday from the ILA's
Facebook page again saying thatthe deal resulted in a package
that calls for a 62% wageincrease.
(32:06):
Now, remember it was 66% beforethey went into.
That was the interim agreement.
I remember it was a 66% wageincrease.
Now we're talking about a 62percent wage increase, and then
it continues on to say ironcladprotections against automation
and semi-automation at LA portsand a stronger health care and
retirement package among manygains.
(32:27):
So there was talk of a secretmeeting.
Look, I don't think that it wasa secret meeting necessarily.
I think that it was just apre-deliberation.
That happens with negotiationsall the time, right, I think
that they just probably had asmaller conversation about okay,
let's hash out some of thislanguage.
What we heard about during thatpre-deliberation secret meeting
(32:48):
was that, look, there needed tobe new jobs created for any new
technology, new jobs createdfor any new technology.
My guess is that's likely.
What we're going to see in thefinal agreement and in this new
master contract is that for allnew tech developed, there's
going to be new jobs created.
That was kind of one of thetenants, I guess, of that secret
meeting.
So we'll see, we'll see.
(33:09):
That's kind of all we know.
We're getting trickled down,trickling of information here
from these public postings, butreally, what we know, right, it
looks like 62% increase and theyhave agreed to some sort of
technology slash automation,slash, semi-automation agreement
but they're moving forwardonwards to 2030.
(33:33):
Like it's a six-year mastercontract.
So 2030 is the next time we'regoing to be talking about this,
unless we have any extensions.
Sometimes that happens.
That's kind of what happenedleading up to this one.
Uh, this was supposed to expire, what was it?
2019.
They extended it three years.
Then that put us to 20.
Uh, 23, 22.
Um, is that right?
(33:54):
Am I doing my math wrong?
Either way, if that was anextension, that happened,
hopefully we don't have anyextensions.
Hopefully they start theseconversations well in advance.
But sometimes that happens.
All right, as always, theguidance here is general, for
educational purposes only.
It should not be considered tobe legal advice directly related
to your matter.
If you need an attorney,contact an attorney, but if you
have specific legal questions,feel free to reach out to me at
(34:16):
my legal company, SquallStrategies.
We'll be back again next week.
Otherwise, for the non-legalquestions, the e-learning and
general industry information andinsights, come find me at the
Maritime Professor.
If you like these videos, letme know, comment, like and share
.
If you want to listen to theseepisodes on demand, or if you
missed any previous episodes,check out the podcast by Landon
B Sea.
If you prefer to see thesevideos, they live on my YouTube
page by Landon by Sea, presentedby the Maritime Professor.
(34:38):
While you're at it, check outthe webpage
themaritimeprofessorcom.
I have plans for 2025 for theMaritime Professor, so get on
that email chain.
So until next week.
This is Lauren Began, theMaritime Professor.
We just got our trademarkregistration, by the way, and
you've just listened to byLandon by Sea.
See you next time.
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