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July 3, 2023

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July 3, 2023 | Journal of Commerce 29 www.joc.com Government retailer threatened new legal action. The carrier then allegedly further refused to renew or negotiate a new contract with the retailer for 2021-22, making it too late for OJC to procure a contract with another carrier, the FMC order said. Hamburg Süd refuted the claims in FMC filings, but Wirth said she found ample evidence that carrier executives suggested not providing further vessel space for OJC under existing contracts and then dis- engaging from negotiating a new contract due to the "litigation risk" posed by OJC. OJC initially sought $100 mil- lion in relief, but Wirth took into account the 15 containers and calcu- lated damages for the lost 2021-22 contract based on trade routes and volume, resulting in a total actual injury of $4.6 million. She then more than doubled the amount to $9.8 million after finding that "the violation was knowing and willful." OJC's legal representation declined to comment. The FMC has 30 days to review Wirth's order. JOC email: teri.griffis@spglobal.com shipping industry has long — and vehemently — denied engaging in. Congress, via the Ocean Shipping Reform Act of 2022 (OSRA-22), voted to beef up protections in those areas for cargo owners. "Commission case law is clear that an ocean common carrier does not have a duty to grant a contract to every potential party," Wirth said in her order. "However, long-stand- ing Commission precedent prohibits common carriers from shutting out any person for reasons having no relation to legitimate transporta- tion-related factors and from retali- ating against shippers." Retaliation claims OJ Commerce (OJC), an importer of home goods based in Miramar Fla., filed its initial complaint against Hamburg Süd in November 2021 for alleged improperly billed demurrage fees totaling $40,680 for 15 containers. While the carrier refunded the full amount of the charges at issue, the case morphed into claims of refusal to deal and retaliation after Hamburg Süd allegedly failed to fulfill the remain- ing minimum quantity commitment in OJC's 2020-21 contract, and the HAMBURG SÜD HAS been ordered to pay almost $10 million to an e-commerce home goods retailer for refusing to fulfill a shipping contract with the company in retaliation for a previous complaint it filed against the carrier, an administrative law judge for the US Federal Maritime Commission (FMC) ruled on June 7. The ruling also found Hamburg Süd, now under the brand of parent company Maersk, refused to engage in new negotiations with the com- plainant because of potential litiga- tion risk. It's the largest penalty levied by the agency since broad US shipping reform was enacted a year ago. "We are reviewing the decision and considering next steps," Maersk said in a statement to the Journal of Commerce. The ruling from Erin Wirth, the FMC's chief administrative law judge, is noteworthy in that it says the agency found evidence that a container line both refused to negotiate a new contract with a shipper and engaged in retaliatory practices, behaviors the container Landmark fine Hamburg Süd hit with $10 million FMC judgment in shipper retaliation case By Teri Errico Griffis "Precedent prohibits common carriers from shutting out any person for reasons having no relation to legitimate transportation-related factors." The penalty against Hamburg Süd is the largest levied by the FMC since OSRA-22 was signed into law last summer. Daniel Wright98 / Shutterstock.com

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