46 USC App 1707(c)(2): Service contract information

          

    Sec. 1707. Tariffs
    (a) In general
      (1) Except with regard to bulk cargo, forest products, recycled
    metal scrap, new assembled motor vehicles, waste paper, and paper
    waste, each common carrier and conference shall keep open to public
    inspection in an automated tariff system, tariffs showing all its
    rates, charges, classifications, rules, and practices between all
    points or ports on its own route and on any through transportation
    route that has been established. However, common carriers shall not
    be required to state separately or otherwise reveal in tariffs the
    inland divisions of a through rate. Tariffs shall - 
        (A) state the places between which cargo will be carried;
        (B) list each classification of cargo in use;
        (C) state the level of ocean transportation intermediary, as
      defined in section 1702(17)(A) of this Appendix, compensation, if
      any, by a carrier or conference;
        (D) state separately each terminal or other charge, privilege,
      or facility under the control of the carrier or conference and
      any rules or regulations that in any way change, affect, or
      determine any part or the aggregate of the rates or charges;
        (E) include sample copies of any bill of lading, contract of
      affreightment, or other document evidencing the transportation
      agreement; and
        (F) include copies of any loyalty contract, omitting the
      shipper's name.
      (2) Tariffs shall be made available electronically to any person,
    without time, quantity, or other limitation, through appropriate
    access from remote locations, and a reasonable charge may be
    assessed for such access. No charge may be assessed a Federal
    agency for such access.
    (b) Time-volume rates
      Rates shown in tariffs filed under subsection (a) of this section
    may vary with the volume of cargo offered over a specified period
    of time.


    (c) Service contracts
      (1) In general
        An individual ocean common carrier or an agreement between or
      among ocean common carriers may enter into a service contract
      with one or more shippers subject to the requirements of this
      chapter. The exclusive remedy for a breach of a contract entered
      into under this subsection shall be an action in an appropriate
      court, unless the parties otherwise agree. In no case may the
      contract dispute resolution forum be controlled by or in any way
      affiliated with a controlled carrier as defined in section
      1702(8) of this Appendix, or by the government which owns or
      controls the carrier.

        

            
 
          
      (2) Filing requirements
        Except for service contracts dealing with bulk cargo, forest
      products, recycled metal scrap, new assembled motor vehicles,
      waste paper, or paper waste, each contract entered into under
      this subsection by an individual ocean common carrier or an
      agreement shall be filed confidentially with the Commission. Each
      service contract shall include the following essential terms - 
          (A) the origin and destination port ranges;
          (B) the origin and destination geographic areas in the case
        of through intermodal movements;
          (C) the commodity or commodities involved;
          (D) the minimum volume or portion;
          (E) the line-haul rate;
          (F) the duration;
          (G) service commitments; and
          (H) the liquidated damages for nonperformance, if any.
      (3) Publication of certain terms
        When a service contract is filed confidentially with the
      Commission, a concise statement of the essential terms described
      in paragraphs 2(A),(!1) (C), (D), and (F) shall be published and
      made available to the general public in tariff format.
      (4) Disclosure of certain terms
        (A) An ocean common carrier, which is a party to or is subject
      to the provisions of a collective bargaining agreement with a
      labor organization, shall, in response to a written request by
      such labor organization, state whether it is responsible for the
      following work at dock areas and within port areas in the United
      States with respect to cargo transportation under a service
      contract described in paragraph (1) of this subsection - 
          (i) the movement of the shipper's cargo on a dock area or
        within the port area or to or from railroad cars on a dock area
        or within the port area;
          (ii) the assignment of intraport carriage of the shipper's
        cargo between areas on a dock or within the port area;
          (iii) the assignment of the carriage of the shipper's cargo
        between a container yard on a dock area or within the port area
        and a rail yard adjacent to such container yard; and
          (iv) the assignment of container freight station work and
        container maintenance and repair work performed at a dock area
        or within the port area.
        (B) The common carrier shall provide the information described
      in subparagraph (A) of this paragraph to the requesting labor
      organization within a reasonable period of time.
        (C) This paragraph requires the disclosure of information by an
      ocean common carrier only if there exists an applicable and
      otherwise lawful collective bargaining agreement which pertains
      to that carrier. No disclosure made by an ocean common carrier
      shall be deemed to be an admission or agreement that any work is
      covered by a collective bargaining agreement. Any dispute
      regarding whether any work is covered by a collective bargaining
      agreement and the responsibility of the ocean common carrier
      under such agreement shall be resolved solely in accordance with
      the dispute resolution procedures contained in the collective
      bargaining agreement and the National Labor Relations Act [29
      U.S.C. 151 et seq.], and without reference to this paragraph.
        (D) Nothing in this paragraph shall have any effect on the
      lawfulness or unlawfulness under this chapter, the National Labor
      Relations Act [29 U.S.C. 151 et seq.], the Taft-Hartley Act [29
      U.S.C. 141 et seq.], the Federal Trade Commission Act [15 U.S.C.
      41 et seq.], the antitrust laws, or any other Federal or State
      law, or any revisions or amendments thereto, of any collective
      bargaining agreement or element thereof, including any element
      that constitutes an essential term of a service contract under
      this subsection.
        (E) For purposes of this paragraph the terms "dock area" and
      "within the port area" shall have the same meaning and scope as
      in the applicable collective bargaining agreement between the
      requesting labor organization and the carrier.
    (d) Tariff rates
      No new or initial rate or change in an existing rate that results
    in an increased cost to the shipper may become effective earlier
    than 30 calendar days after publication. The Commission, for good
    cause, may allow such a new or initial rate or change to become
    effective in less than 30 calendar days. A change in an existing
    rate that results in a decreased cost to the shipper may become
    effective upon publication.
    (e) Refunds
      The Commission may, upon application of a carrier or shipper,
    permit a common carrier or conference to refund a portion of
    freight charges collected from a shipper or to waive the collection
    of a portion of the charges from a shipper if - 
        (1) there is an error in a,(!2) in failing to publish a new
      tariff, or an error in quoting a tariff, and the refund will not
      result in discrimination among shippers, ports, or carriers;
        (2) the common carrier or conference has, prior to filing an
      application for authority to make a refund for an error in a
      tariff or a failure to publish a tariff, published a new tariff
      that sets forth the rate on which the refund or waiver would be
      based; and
        (3) the application for refund or waiver is filed with the
      Commission within 180 days from the date of shipment.
    (f) Marine terminal operator schedules
      A marine terminal operator may make available to the public,
    subject to section 1709(d) of this Appendix, a schedule of rates,
    regulations, and practices, including limitations of liability for
    cargo loss or damage, pertaining to receiving, delivering,
    handling, or storing property at its marine terminal. Any such
    schedule made available to the public shall be enforceable by an
    appropriate court as an implied contract without proof of actual
    knowledge of its provisions.
    (g) Regulations
      The Commission shall by regulation prescribe the requirements for
    the accessibility and accuracy of automated tariff systems
    established under this section. The Commission may, after periodic
    review, prohibit the use of any automated tariff system that fails
    to meet the requirements established under this section. The
    Commission may not require a common carrier to provide a remote
    terminal for access under subsection (a)(2) of this section. The
    Commission shall by regulation prescribe the form and manner in
    which marine terminal operator schedules authorized by this section
    shall be published.

                                AMENDMENTS                            
      1998 - Subsec. (a)(1). Pub. L. 105-258, Sec. 106(a)(1)-(4), in
    introductory provisions, in first sentence, inserted "new assembled
    motor vehicles," after "scrap,", struck out "file with the
    Commission, and" after "conference shall", and substituted
    "inspection in an automated tariff system," for "inspection,", and
    in second sentence, substituted "tariffs" for "tariff filings".
      Subsec. (a)(1)(C). Pub. L. 105-258, Sec. 106(a)(5), substituted
    "transportation intermediary, as defined in section 1702(17)(A) of
    this Appendix," for "freight forwarder".
      Subsec. (a)(1)(E). Pub. L. 105-258, Sec. 106(a)(7), struck out
    "loyalty contract," before "bill of lading".
      Subsec. (a)(1)(F). Pub. L. 105-258, Sec. 106(a)(6), (8), (9),
    added subpar. (F).
      Subsec. (a)(2). Pub. L. 105-258, Sec. 106(a)(10), added par. (2)
    and struck out former par. (2) which read as follows: "Copies of
    tariffs shall be made available to any person, and a reasonable
    charge may be assessed for them."
      Subsec. (c). Pub. L. 105-258, Sec. 106(b), amended heading and
    text of subsec. (c) generally. Prior to amendment, text read as
    follows: "An ocean common carrier or conference may enter into a
    service contract with a shipper or shippers' association subject to
    the requirements of this chapter. Except for service contracts
    dealing with bulk cargo, forest products, recycled metal scrap,
    waste paper, or paper waste, each contract entered into under this
    subsection shall be filed confidentially with the Commission, and
    at the same time, a concise statement of its essential terms shall
    be filed with the Commission and made available to the general
    public in tariff format, and those essential terms shall be
    available to all shippers similarly situated. The essential terms
    shall include - 
        "(1) the origin and destination port ranges in the case of
      port-to-port movements, and the origin and destination geographic
      areas in the case of through intermodal movements;
        "(2) the commodity or commodities involved;
        "(3) the minimum volume;
        "(4) the line-haul rate;
        "(5) the duration;
        "(6) service commitments; and
        "(7) the liquidated damages for nonperformance, if any.
    The exclusive remedy for a breach of a contract entered into under
    this subsection shall be an action in an appropriate court, unless
    the parties otherwise agree."
      Subsec. (d). Pub. L. 105-258, Sec. 106(c), substituted "Tariff
    rates" for "Rates" in heading and substituted "30 calendar days
    after publication." for "30 days after filing with the Commission."
    in first sentence, inserted "calendar" after "30" in second
    sentence, and substituted "publication." for "publication and
    filing with the Commission." in last sentence.
      Subsec. (e)(1). Pub. L. 105-258, Sec. 106(d)(2), which directed
    amendment of par. (1) by substituting "publish a new tariff, or an
    error in quoting a tariff," for "file a new tariff," was executed
    by making the substitution for "file a new tariff" after "in
    failing to", to reflect the probable intent of Congress.
      Pub. L. 105-258, Sec. 106(d)(1), substituted "error in a," for
    "error in a tariff of a clerical or administrative nature or an
    error due to inadvertence".
      Subsec. (e)(2). Pub. L. 105-258, Sec. 106(d)(3), (4), substituted
    "refund for an error in a tariff or a failure to publish a tariff,
    published a new tariff" for "refund, filed a new tariff with the
    Commission" and inserted "and" at end.
      Subsec. (e)(3), (4). Pub. L. 105-258, Sec. 106(d)(5),
    redesignated par. (4) as (3) and struck out former par. (3) which
    read as follows: "the common carrier or conference agrees that if
    permission is granted by the Commission, an appropriate notice will
    be published in the tariff, or such other steps taken as the
    Commission may require that give notice of the rate on which the
    refund or waiver would be based, and additional refunds or waivers
    as appropriate shall be made with respect to other shipments in the
    manner prescribed by the Commission in its order approving the
    application; and".
      Subsec. (f). Pub. L. 105-258, Sec. 106(e), amended heading and
    text of subsec. (f) generally. Prior to amendment, text read as
    follows: "The Commission may by regulation prescribe the form and
    manner in which the tariffs required by this section shall be
    published and filed. The Commission may reject a tariff that is not
    filed in conformity with this section and its regulations. Upon
    rejection by the Commission, the tariff is void and its use is
    unlawful."
      Subsec. (g). Pub. L. 105-258, Sec. 106(f), added subsec. (g).
                     EFFECTIVE DATE OF 1998 AMENDMENT                 
      Amendment by Pub. L. 105-258 effective May 1, 1999, see section 2
    of Pub. L. 105-258, set out as a note under section 1701 of this
    Appendix.