National Shipper Advisory Committee to the Federal Maritime Commission (FMC)

Subcommittee: Fees and Surcharges

Recommendation

Expanding the Scope of the Federal Maritime Commission to Include Oversight of Rail Carriage and 

Related Charges for Through Bills of Lading

Purpose. The purpose of this recommendation is to offer ample justification to expand the scope of the 

Federal Maritime Commission.

Definition. The term “through Bill of Lading” refers to any Bill of Lading including rail carriage as an 

extension to marine carriage.

Applicability and Scope. This recommendation, if accepted and implemented, would expand the scope 

of the Federal Maritime Commission to have oversight over (1) all rail carriage, (2) demurrage (including 

any charges labeled “rail storage”) and detention (including any charges labeled “per diem”) at rail ramps, 

and (3) commercial terms and conditions as they apply to shippers and carriers (ocean, rail, and motor) 

for all shipments with an ocean Bill of Lading including rail transportation until the final destination 

defined within the Bill of Lading. This would be the case for both import and export shipments.

Justification. Currently, the Federal Maritime Commission (hereafter, “FMC”) has oversight over ocean 

transportation, related parties, and related terms and conditions per the Shipping Act of 1984. Moreover, 

the FMC has assumed oversight of demurrage and detention at marine terminals per the interpretive rule 

outlined in 46 U.S.C. 41102(c) and §545.5, but this oversight is specifically outlined to be at “marine 

terminals”.

Many shippers, both importers and exporters, tender cargo to ocean carriers from inland points against 

rates inclusive of rail and/or motor carriage which are quoted by the ocean carriers and subsequently filed 

with the FMC. 

There is currently no adequate dispute resolution process available to shippers when disputes involving 

the rail portion of cargo movement, including demurrage/rail storage and detention/per diem at rail 

ramps, invariably arise. More importantly, there is currently no direct governmental oversight over the 

rail portion of these shipments nor over their operational execution. 

Without governmental oversight, and specifically oversight by the Federal Maritime Commission, the 

interpretive rule outlined in §545.5 is not applied to any demurrage/rail storage or detention/per diem 

assessed at rail ramps by rail operators, terminal operators, and/or ocean carriers against through Bills of 

Lading.

As the United States Congress is considering an update to the Shipping Act of 1984 with the current draft 

of the Ocean Shipping Reform Act and the FMC is evaluating an evolution of language in the interpretive 
rule with the recently announced advanced notice of proposed rulemaking, we must also consider this 

current gap of oversight involving rail.

The spirit of the FMC’s oversight should be founded at the Bill of Lading level through to the final 

destination defined by the shipment parties within the Bill of Lading and not solely focused on the marine 

portion of cargo movement and fee structures. The Bill of Lading issued by ocean carriers is the contract 

of international carriage. As such, if the FMC has oversight over the parties to the Bill of Lading, it should 

also have oversight over the entirety of terms and conditions to the Bill of Lading. Indeed, the FMC 

currently has oversight over all rates filed by ocean carriers and NVOCCs including rates that have rail 

carriage in their composition.

Moreover, rail operators are not direct vendors to shippers. Instead, they act as subcontractors to ocean 

carriers and facilitate non-marine carriage on behalf of ocean carriers against through rates offered by the 

ocean carriers and against through Bills of Lading issued by the ocean carriers. Consequently, equitable 

protection of shippers across all Bill of Lading terms can only be assured under the direct oversight by the 

Federal Maritime Commission. 

To further complicate matters, the National Shipper Advisory Committee has been provided with multiple 

examples of carriers discharging cargo at a different import port of entry than listed on the Bill of Lading. 

While this practice is acceptable in certain circumstances (i.e., force majeure, congestion avoidance, etc.), 

the change is not always communicated to the shippers or their nominated forwarders and/or brokers. 

Consequently, a customs broker can file an entry at the original port of discharge, but this entry is nullified 

if the cargo discharges elsewhere. Per the examples provided to this Committee, this scenario has 

resulted in demurrage for the importer even on carrier door moves as the carrier cannot pull the cargo 

until the original entry is withdrawn and the new entry is submitted.

For these reasons, we, as the unified National Shipper Advisory Committee, hereby recommend that the 

Federal Maritime Commission be given oversight over all carriers, subcontractors, rates, demurrage, 

detention, storage under any other name, terms and conditions, and modes reflected on any Bill of Lading 

issued by an ocean carrier. Additionally, we recommend that the FMC begins mandating the provision of 

accurate transit, cargo location, and container pickup/return locations by carriers to shippers and their 

nominated forwarders and/or brokers. Finally, in the event of a conflict between the terms of the Uniform 

Intermodal Interchange Access Agreement (UIIA) and the FMC’s oversight and Interpretive Rule, it is the 

recommendation of this Committee that the terms of the FMC shall prevail.