§40102 — Title 46 Shipping | U.S. Code

Summary

Defines key words used in the laws about ocean shipping and port services. It gives short meanings for terms you will see elsewhere in the rules. Agreement is any written or spoken arrangement, but not a maritime labor agreement. Antitrust laws are the main federal competition statutes (for example, the Sherman Act, Clayton Act, Federal Trade Commission Act, and related laws). Assessment agreement is a way to fund union-negotiated fringe benefits that is not based on a uniform worker-hour rate. Bulk cargo is goods carried loose without marks or counts. Certain covered services for a vessel include berthing, bunkering, loading or unloading to a wharf or terminal, moving buoys for the vessel, and, for court-ordered relief, towing. Chemical parcel-tanker is a ship with built-in separate tanks and a valid international certificate for carrying dangerous chemicals. Common carrier is a person who offers paid water transport between the United States and a foreign country and takes responsibility from pickup to delivery, but excludes certain ferries, tramps, chemical parcel-tankers, and some carriers of perishable farm goods under specific ownership rules. Conference is an approved group of ocean carriers acting together and using a common tariff, but not other types of cooperative agreements. Controlled carrier is one owned or run by a government when the government has majority interest or appointment power. Deferred rebate is a freight refund that is paid after service only if the shipper agrees to give future shipments. Forest products lists common wood and paper items. Inland division/portion refer to the payment or charge for the non-ocean part of through transportation. Loyalty contract combines a shipper’s cargo commitment for lower rates with a deferred rebate. Marine terminal operator runs wharves, docks, warehouses, or other terminal facilities. Maritime labor agreement is a collective bargaining deal for maritime workers, but not an assessment agreement. Non-vessel-operating common carrier does not operate ships and acts as a shipper. Ocean common carrier operates vessels. Ocean freight forwarder books space and handles shipping paperwork in the U.S. Ocean transportation intermediary is either a freight forwarder or a non-vessel-operating carrier. Service contract is a written deal (not a bill of lading) where shippers promise cargo volume and carriers promise rates and service levels. Shipment is all cargo covered by one bill of lading. Shipper is the cargo owner, the party for whose account transport is provided, the delivery recipient, a shippers’ association, or a non-vessel-operating carrier that pays charges. Shippers’ association is a nonprofit group that consolidates freight for members to get volume rates. Through rate is the single price charged for through transportation. Through transportation is continuous movement between a U.S. port or point and a foreign port or point charged at a through rate.

Title 46, §40102

Shipping — Source: USLM XML via OLRC

In this part:

(1)The term “agreement”—

(A)means a written or oral understanding, arrangement, or association, and any modification or cancellation thereof; but

(B)does not include a maritime labor agreement.

(2)The term “antitrust laws” means—

(A)the Sherman Act (15 U.S.C. 1 et seq.);

(B)section 73 and 74 of the Wilson Tariff Act (15 U.S.C. 8, 9);

(C)the Clayton Act (15 U.S.C. 12 et seq.);

(D)the Act of June 19, 1936 (15 U.S.C. 13, 13a, 13b, 21a);

(E)the Federal Trade Commission Act (15 U.S.C. 41 et seq.);

(F)the Antitrust Civil Process Act (15 U.S.C. 1311 et seq.); and

(G)Acts supplementary to those Acts.

(3)The term “assessment agreement” means an agreement, whether part of a collective bargaining agreement or negotiated separately, to the extent the agreement provides for the funding of collectively bargained fringe-benefit obligations on other than a uniform worker-hour basis, regardless of the cargo handled or type of vessel or equipment used.

(4)The term “bulk cargo” means cargo that is loaded and carried in bulk without mark or count.

(5)For purposes of section 41105 and 41307, the term “certain covered services” means, with respect to a vessel—

(A)the berthing or bunkering of the vessel;

(B)the loading or unloading of cargo to or from the vessel to or from a point on a wharf or terminal;

(C)the positioning, removal, or replacement of buoys related to the movement of the vessel; and

(D)with respect to injunctive relief under section 41307, towing vessel services provided to such a vessel.

(6)The term “chemical parcel-tanker” means a vessel that has—

(A)a cargo-carrying capability consisting of individual cargo tanks for bulk chemicals that—

(i)are a permanent part of the vessel; and

(ii)have segregation capability with piping systems to permit simultaneous carriage of several bulk chemical cargoes with minimum risk of cross-contamination; and

(B)a valid certificate of fitness under the International Maritime Organization Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk.

(7)The term “common carrier”—

(A)means a person that—

(i)holds itself out to the general public to provide transportation by water of passengers or cargo between the United States and a foreign country for compensation;

(ii)assumes responsibility for the transportation from the port or point of receipt to the port or point of destination; and

(iii)uses, for all or part of that transportation, a vessel operating on the high seas or the Great Lakes between a port in the United States and a port in a foreign country; but

(B)does not include a carrier engaged in ocean transportation by ferry boat, ocean tramp, or chemical parcel-tanker, or by vessel when primarily engaged in the carriage of perishable agricultural commodities—

(i)if the carrier and the owner of those commodities are wholly-owned, directly or indirectly, by a person primarily engaged in the marketing and distribution of those commodities; and

(ii)only with respect to the carriage of those commodities.

(8)The term “conference”—

(A)means an association of ocean common carriers permitted, pursuant to an approved or effective agreement, to engage in concerted activity and to use a common tariff; but

(B)does not include a joint service, consortium, pooling, sailing, or transshipment agreement.

(9)The term “controlled carrier” means an ocean common carrier that is, or whose operating assets are, directly or indirectly, owned or controlled by a government, with ownership or control by a government being deemed to exist for a carrier if—

(A)a majority of the interest in the carrier is owned or controlled in any manner by that government, an agency of that government, or a public or private person controlled by that government; or

(B)that government has the right to appoint or disapprove the appointment of a majority of the directors, the chief operating officer, or the chief executive officer of the carrier.

(10)The term “deferred rebate” means a return by a common carrier of any freight money to a shipper, where the return is—

(A)consideration for the shipper giving all or any portion of its shipments to that or any other common carrier over a fixed period of time;

(B)deferred beyond the completion of the service for which it was paid; and

(C)made only if the shipper has agreed to make a further shipment with that or any other common carrier.

(11)The term “forest products” includes lumber in bundles, rough timber, ties, poles, piling, laminated beams, bundled siding, bundled plywood, bundled core stock or veneers, bundled particle or fiber boards, bundled hardwood, wood pulp in rolls, wood pulp in unitized bales, and paper and paper board in rolls or in pallet or skid-sized sheets.

(12)The term “inland division” means the amount paid by a common carrier to an inland carrier for the inland portion of through transportation offered to the public by the common carrier.

(13)The term “inland portion” means the charge to the public by a common carrier for the non-ocean portion of through transportation.

(14)The term “loyalty contract” means a contract with an ocean common carrier or agreement providing for—

(A)a shipper to obtain lower rates by committing all or a fixed portion of its cargo to that carrier or agreement; and

(B)a deferred rebate arrangement.

(15)The term “marine terminal operator” means a person engaged in the United States in the business of providing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier, or in connection with a common carrier and a water carrier subject to subchapter II of chapter 135 of title 49.

(16)The term “maritime labor agreement”—

(A)means—

(i)a collective bargaining agreement between an employer subject to this part, or a group of such employers, and a labor organization representing employees in the maritime or stevedoring industry;

(ii)an agreement preparatory to such a collective bargaining agreement among members of a multi-employer bargaining group; or

(iii)an agreement specifically implementing provisions of such a collective bargaining agreement or providing for the formation, financing, or administration of a multi-employer bargaining group; but

(B)does not include an assessment agreement.

(17)The term “non-vessel-operating common carrier” means a common carrier that—

(A)does not operate the vessels by which the ocean transportation is provided; and

(B)is a shipper in its relationship with an ocean common carrier.

(18)The term “ocean common carrier” means a vessel-operating common carrier.

(19)The term “ocean freight forwarder” means a person that—

(A)in the United States, dispatches shipments from the United States via a common carrier and books or otherwise arranges space for those shipments on behalf of shippers; and

(B)processes the documentation or performs related activities incident to those shipments.

(20)The term “ocean transportation intermediary” means an ocean freight forwarder or a non-vessel-operating common carrier.

(21)The term “service contract” means a written contract, other than a bill of lading or receipt, between one or more shippers, on the one hand, and an individual ocean common carrier or an agreement between or among ocean common carriers, on the other, in which—

(A)the shipper or shippers commit to providing a certain volume or portion of cargo over a fixed time period; and

(B)the ocean common carrier or the agreement commits to a certain rate or rate schedule and a defined service level, such as assured space, transit time, port rotation, or similar service features.

(22)The term “shipment” means all of the cargo carried under the terms of a single bill of lading.

(23)The term “shipper” means—

(A)a cargo owner;

(B)the person for whose account the ocean transportation of cargo is provided;

(C)the person to whom delivery is to be made;

(D)a shippers’ association; or

(E)a non-vessel-operating common carrier that accepts responsibility for payment of all charges applicable under the tariff or service contract.

(24)The term “shippers’ association” means a group of shippers that consolidates or distributes freight on a nonprofit basis for the members of the group to obtain carload, truckload, or other volume rates or service contracts.

(25)The term “through rate” means the single amount charged by a common carrier in connection with through transportation.

(26)The term “through transportation” means continuous transportation between origin and destination for which a through rate is assessed and which is offered or performed by one or more carriers, at least one of which is a common carrier, between a United States port or point and a foreign port or point.

Notes & Related Subsidiaries

Historical and Revision Notes

Revised SectionSource (U.S. Code)Source (Statutes at Large) 40102(1)46 App.:1702(1).Pub. L. 98–237, § 3, Mar. 20, 1984, 98 Stat. 67; Pub. L. 99–307, § 11, May 19, 1986, 100 Stat. 447; Pub. L. 105–258, title I, § 102, Oct. 14, 1998, 112 Stat. 1902; Pub. L. 105–383, title IV, § 424(d), Nov. 13, 1998, 112 Stat. 3441. 40102(2)46 App.:1702(2). 40102(3)46 App.:1702(3). 40102(4)46 App.:1702(4). 40102(5)46 App.:1702(6) (last sentence). 40102(6)46 App.:1702(6) (1st sentence). 40102(7)46 App.:1702(7). 40102(8)46 App.:1702(8). 40102(9)46 App.:1702(9). 40102(10)46 App.:1702(10). 40102(11)46 App.:1702(11). 40102(12)46 App.:1702(12). 40102(13)46 App.:1702(13). 40102(14)46 App.:1702(14). 40102(15)46 App.:1702(15). 40102(16)46 App.:1702(17)(B). 40102(17)46 App.:1702(16). 40102(18)46 App.:1702(17)(A). 40102(19)46 App.:1702(17) (1st sentence). 40102(20)46 App.:1702(19). 40102(21)46 App.:1702(20). 40102(22)46 App.:1702(21). 40102(23)46 App.:1702(22). 40102(24)46 App.:1702(23). 40102(25)46 App.:1702(24). In the definition of “service contract”, the words “The contract may also specify provisions in the event of nonperformance on the part of any party” are omitted as unnecessary and inappropriate for a definition. In the definition of “shipper”, the words “non-vessel-operating common carrier” are substituted for “ocean transportation intermediary, as defined in paragraph (17)(B) of this section” because paragraph (17)(B) contains a definition of “non-vessel-operating common carrier” which is restated as a separate definition. The definition of “Commission” is omitted because the full name of the Federal Maritime Commission is used the first time the Commission is referred to in each section. The definition of “person” is omitted as unnecessary because of 1 U.S.C. 1. The definition of “United States” is omitted because the term is defined in chapter 1 of the revised title for purposes of the title.

Editorial Notes

References in Text

The Sherman Act, referred to in par. (2)(A), is act July 2, 1890, ch. 647, 26 Stat. 209, which is classified to sections 1 to 7 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see

Short Title

note set out under section 1 of Title 15 and Tables. The Clayton Act, referred to in par. (2)(C), is act Oct. 15, 1914, ch. 323, 38 Stat. 730, which is classified generally to section 12, 13, 14 to 19, 21, and 22 to 27 of Title 15, Commerce and Trade, and section 52 and 53 of Title 29, Labor. For further details and complete classification of this Act to the Code, see

References in Text

note set out under section 12 of Title 15 and Tables. Act of

June 19, 1936, referred to in par. (2)(D), is act

June 19, 1936, ch. 592, 49 Stat. 1526, popularly known as the Robinson-Patman Act, the Robinson-Patman Antidiscrimination Act, and the Robinson-Patman Price Discrimination Act, which enacted section 13a, 13b, and 21a of Title 15, Commerce and Trade, and amended section 13 of Title 15. For complete classification of this Act to the Code, see

Short Title

note set out under section 13 of Title 15 and Tables. The Federal Trade Commission Act, referred to in par. (2)(E), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 58 of Title 15 and Tables. The Antitrust Civil Process Act, referred to in par. (2)(F), is Pub. L. 87–664, Sept. 19, 1962, 76 Stat. 548, which is classified principally to chapter 34 (§ 1311 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see

Short Title

note set out under section 1311 of Title 15 and Tables.

Amendments

2018—Pars. (5) to (26). Pub. L. 115–282 added par. (5) and redesignated former pars. (5) to (25) as (6) to (26), respectively.

Statutory Notes and Related Subsidiaries

Agreements Unaffected Pub. L. 115–282, title VII, § 714, Dec. 4, 2018, 132 Stat. 4299, provided that: “Nothing in this Act [probably should be “this title”, enacting section 41105A of this title, amending section 40102, 40104, 40304, 40307, 40901, 40902, 41104, 41105, 41307, 46103, 46106, and 46108 of this title, and enacting provisions set out as notes under section 40304, 41104, 41307, and 46105 of this title] may be construed— “(1) to limit or amend the definition of ‘agreement’ in section 40102(1) of title 46, United States Code, with respect to the exclusion of maritime labor agreements; or “(2) to apply to a maritime labor agreement (as defined in section 40102(15) of that title).”

§40102 Definitions

Summary

Title 46, §40102

Notes & Related Subsidiaries

Historical and Revision Notes

Editorial Notes

References in Text

Short Title

References in Text

Short Title

Short Title

Amendments

Statutory Notes and Related Subsidiaries

Citations & Metadata