News / Truckers reeling after box lines outgun FMC lawyers in 'unfair fight'

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Shipping sources have slammed the decision of a US court “with no practical experience in shipping” to put drayage providers back on the hook for D&D charges, after ruling a key provision of the Ocean and Shipping Reform Act (OSRA) was “capricious and unfair”.

The US Court of Appeals ruled in favour of the World Shipping Council’s (WSC) assertion that the Federal Maritime Commission’s (FMC) final rule, which prohibited carriers from billing truckers for late charges, overstepped the mark, invalidating the rule.

Pointing to the FMC’s “stated rationale” that only entities in a contract with the billing party could be charged, the court said the FMC “without adequate explanation, left out entities in such a contractual relationship while seemingly including others who are not”.

“We conclude that the rule is arbitrary and capricious, because the FMC failed to explain the seeming inconsistency between its contractual-privity-based rationale and its categorical bar against billing motor carriers even when in privity with the billing party,” the court asserted.

Responding to the news, shipping sources slammed the court’s decision as one that emanated from the justices’ “lack of practical experience in shipping”, while also noting a discrepancy in the team of attorneys available to the WSC and FMC.

One shipping source told The Loadstar: “The FMC has attorneys, but these are administrative attorneys, they’re not trial attorneys. And I have read the transcripts of other cases and trial attorneys always eat their lunch. They do not do very well.

“If you read the transcripts of this case, the FMC attorneys were humming and hawing, and just were not good. The WSC, on the other hand, made up of multibillion dollar companies, has trial attorneys who probably cost $1,000 an hour, it’s just not a fair fight.”

Unsurprisingly, the feeling among truckers – “who were feeling pretty good” after 2024’s final rule – is purportedly low, with suggestions that a return to the previous state of play would be a mess for every party, bar the carriers.

The source continued: “Before the ruling it was just absolutely horrific for the drivers and the truckers. Truckers were easy pickings because they were effectively locked out and told they would not be allowed to collect anything from the terminal until they paid the charges.”

Asked what was likely to happen, the source noted that with carriers owning terminals, they could foresee situations with truckers forced into contracts in exchange for future access; even if this was not the case, they said that “what constitutes a contractual relationship” was not clear.