Charge complaints under 46 U.S.C. § 41310: when and how to escalate a D&D dispute

What OSRA 2022 added

Before June 16, 2022, a shipper that thought a D&D charge was unreasonable had two practical options at the FMC: a formal complaint seeking reparations, with the cost and time of litigation, or informal help from the Commission's dispute resolution staff. The Ocean Shipping Reform Act of 2022 (Pub. L. 117-146) added a third path built for individual charges.

46 U.S.C. § 41310 says any person may submit information about a charge assessed by a common carrier that the person believes does not comply with § 41104(a) or § 41102, and the Commission must accept it. Submissions should include the bill of lading numbers and invoices. The Commission must promptly investigate the charge. If it finds the charge noncompliant, it must promptly order a refund of charges paid, and the statute ties a civil penalty under § 41107 to that finding.

The provision that matters most for D&D is the burden. Under § 41310(b), the common carrier bears the burden of establishing the reasonableness of any demurrage or detention charges pursuant to 46 CFR § 545.5. The shipper does not have to prove the charge was unreasonable; the carrier has to show it was reasonable under the incentive principle.

What is in scope and what is not

The statute speaks of charges assessed by a common carrier. That includes vessel-operating carriers and NVOCCs. The FMC's interim guidance on the charge complaint procedure states that charges assessed by marine terminal operators or other entities that are not common carriers are outside it, unless they are assessed on behalf of a common carrier. Many demurrage invoices come from terminals, so check who issued the charge before planning an escalation. MTO charges can still be disputed under Part 541 and § 545.5, and other FMC avenues remain available.

Timing also limits scope. The FMC's guidance says the procedure does not cover charges invoiced or assessed before June 16, 2022, the date OSRA was enacted.

For NVOCC charges, § 41310(e) directs the Commission to consider whether the NVOCC is responsible for the charge in whole or in part, and whether another party is ultimately responsible. That matters when an NVOCC passed through a carrier's charge unchanged.

What a submission contains

The FMC's guidance asks for submissions by email to chargecomplaints@fmc.gov. A submission should identify the common carrier, explain how the charge violates § 41104(a) or § 41102, and attach supporting documents such as invoices, bills of lading and proof of payment. Other kinds of complaints go to a separate FMC address, so keep charge complaints on the designated channel.

After submission, Commission staff acknowledge it and investigate once they have enough information, contacting the submitter if more is needed. The carrier is asked to justify the charge. The carrier may voluntarily refund or waive the charge at any point before the Commission rules, which closes the complaint. If staff find noncompliance, the matter goes to the Commission's enforcement office, which may recommend an Order to Show Cause requiring the carrier to explain why it should not refund or waive. Any penalty is decided in a separate proceeding before an Administrative Law Judge under §§ 41107 and 41109.

If no violation is found, the guidance notes the submitter can still pursue a small claim or formal complaint, or seek alternative dispute resolution through the Office of Consumer Affairs and Dispute Resolution Services.

• Identity of the common carrier that assessed the charge
• Statement of how the charge violates § 41104(a) or § 41102
• Invoices and bills of lading
• Proof of payment, if the charge was paid
• The operational evidence and the dispute history

Dispute first, then escalate

Section 41310 does not condition a submission on a prior request to the billing party. In practice, a Part 541 request should come first. It is faster, it is required groundwork for § 541.8 timelines, and many disputes end there. It also produces the most persuasive exhibit a complaint can have: the carrier's response. A denial that engages with your evidence tells the Commission what the carrier's reasonableness argument will be. A denial that ignores it, or no response inside the § 541.8(b) 30-day resolution window, tells the Commission something too.

Escalation makes sense when three conditions hold: the charge was assessed by a common carrier, your evidence shows the charge did not serve its incentive purpose (or the invoice failed Part 541), and the carrier denied or ignored a documented request. Dollar size matters less than pattern. A carrier that denies the same well-documented empty-return dispute every month is a better escalation candidate than one large but murky invoice.

Worked example: empty return refused for four days

Northgate Tile Supply, a 2,400 TEU importer of ceramic tile, receives a carrier detention invoice for twelve 40-foot containers. Each is billed 7 days at $150 per day, for a total of 12 x 7 x $150 = $12,600.

Northgate's records show that for four of those days the carrier's designated empty return location posted that it was not accepting that carrier's 40-foot high cubes, and Northgate's trucker has gate trouble tickets for two rejected ingate attempts. Northgate requested waiver of the four blocked days per container under § 545.5(c)(2)(ii): 12 x 4 x $150 = $7,200, accepting the remaining 12 x 3 x $150 = $5,400. The carrier replied with a one-line denial that did not address the depot notices. Northgate had paid the full $12,600 to keep its account current.

The dossier for a § 41310 submission is now straightforward: the invoice and bills of lading, proof of payment, the depot's posted notices with capture times, the trucker's trouble tickets, the original request and the denial. The amount at issue is $7,200. If the carrier cannot establish that detention on days when empties could not be returned served an incentive purpose, the remedy the statute provides is a refund of the charges paid.

Keeping your relationship and your record

Shippers worry that escalation damages carrier relationships. The best protection is a record that shows you disputed precisely and in good faith. A complaint that attaches a narrow, evidenced request and an unexplained denial is a professional document, not a provocation. It also reads well internally: a VP of logistics explaining an escalation to a carrier's account team can point to the request, the evidence and the date the response window closed.

Decide in advance who signs off. Escalation is a commercial decision as much as a regulatory one, so agree a rule with procurement and finance (for example, any carrier with repeated unexplained denials on evidenced requests goes to review) rather than deciding case by case under deadline pressure.

Track outcomes. Carrier Scorecards in ATAHSKIA record, per carrier and terminal, how many requests were credited, partially credited or denied, and how long each took. That history is useful for procurement conversations as well as for deciding which disputes to escalate.

How ATAHSKIA fits

The FMC Charge Complaints module compiles the dossier from the dispute file: invoices, bills of lading, payment records, milestone and gate evidence, the request and the response, organised in the order the FMC guidance describes. The billed party reviews it and submits it in its own name, under its own authorization.

ATAHSKIA does not file complaints, does not represent anyone before the FMC or a court, and does not give legal advice. For formal complaints, reparations claims or strategy on a specific carrier, work with maritime counsel. Our /resources/fmc-rules-guide summarises the statutes and regulations cited here.