Tra un mese entrerà in vigore l'Ocean Shipping Reform Act (OSRA)

Il prossimo 1° maggio entrerà in vigore lo statunitense Ocean Shipping Reform Act (OSRA), che sostituirà lo Shipping Act del 1982. La riforma, approvata dal presidente degli Stati Uniti il 16 ottobre 1998, si basa su due principi essenziali: una accresciuta deregolamentazione e un rafforzamento della contrattualizzazione dei rapporti diretti tra armatori e caricatori nei contratti di servizio individuali e confidenziali.

Il governo americano ha impiegato tre anni per convincere le varie categorie della bontà commerciale del nuovo Act, e i più duri a cedere sono stati i portuali, ma tutti l'hanno infine accettato. Si tratterà di vedere nel corso della sua applicazione pratica se riuscirà a rendere più fluidi e corretti i rapporti tra armatori e caricatori. Fin d'ora si può però dire che le principali vittime della riforma sono i non vessel operating common carrier (NVOCC), che sono sottoposti ad uno stato ibrido: come caricatori nelle loro relazioni con gli armatori, ma con delle coercizioni che sono proprie dei committenti di trasporti in materia di garanzie finanziarie, e come armatori nelle loro relazioni con i caricatori, ma senza averne i vantaggi, specialmente in materia di negoziato dei contratti di servizio.

Riportiamo di seguito una comparazione tra la normativa che entrerà in vigore il 1° maggio e lo Shipping Act del 1982 proposta dalla Maersk Line. Comparison of S. 414 (Ocean Shipping Reform Act of 1998)
and current law

ISSUE	NEW LAW -- S.414	CURRENT LAW
Effective Date	Revisions to Shipping Act will be effective on May 1, 1999. The FMC is to issue final regulations to implement the statutory changes by March 1, 1999.	N/A
Service Contracts	Except for contracts on exempt commodities, service contracts entered into by an agreement of ocean common carriers or by an individual ocean common carrier are filed confidentially with the FMC and certain essential terms are made available to the public in tariff format. Those essential terms are: (i) the origin and (ii) destination port ranges, (iii) the commodity or commodities involved, (iv) the minimum volume or portion and (v) the contract duration. Inland points (for intermodal moves), rates, service commitments and liquidated damages for non-performance are not required to be published and may be confidential if the parties opt to do so.	Except for contracts on exempt commodities, all service contracts are filed confidentially with the FMC and the contract's essential terms are publicly available. The essential terms required to be published are: (i) origin and destination port ranges for port/port movements and origin and destination geographic areas for intermodal movements; (ii) commodities; (iii) minimum volume committed; (iv) line haul rate; (v) contract duration; (vi) service commitment; and (vii) liquidated damages, if any.
	Individual shippers, shippers' associations and a group of unaffiliated shippers may enter into service contracts.	Individual shippers and shippers' association may enter into service contracts. Unafilliated shippers are prohibited from entering into a service contract except through a membership in a shippers' association.
	There is no "me-too" right for similarly situated shippers.	Similarly situated shippers may "me-too" the essential terms within a 30-day window.
	NVOCCs cannot offer service contracts. An agreement of ocean common carriers (not just a conference) may enter into service contracts.	NVOCCs cannot offer service contracts. Only ocean common carriers and conferences may enter into service contracts with a shipper or a shipper's association.
	A carrier or carrier group may offer a service contract based on a cargo commitment of a specified minimum volume or portion, i.e., percentage, of shipper's cargo.	A service contract must be for a specified minimum volume of cargo. In most cases, no percentage of volume ("loyalty") contracts for conferences.
	A common carrier who is a party or subject to a collective bargaining agreement with a longshore labor organization may be requested to disclose to that labor organization whether it is responsible for certain work performed at U.S. dock areas in connection with service contract cargoes.	N/A
Restrictions on Conference Regulation of Service Contracts	Conferences and other agreements including consortia cannot prohibit a member(s) from negotiating individual contracts.	Conferences may prohibit their members from negotiating and entering into individual service contracts and may adopt mandatory rules or guidelines for group or individual contracts.
	The member(s) cannot be required to disclose a negotiation of a service contract or the terms and conditions of a confidential service contract, other than the terms which are required to be published.
	Conferences and other agreements cannot issue mandatory rules for individual service contracts, but can issue voluntary guidelines relating to the terms and procedures for such contracts. The guidelines must be confidentially submitted to the FMC.
Tariffs	Except for exempt commodities, common carriers and conferences shall maintain an automated tariff system showing all of their rates, terms and charges. These tariffs shall be made available electronically to any person through appropriate access from remote locations and are subject to inspection by the FMC. A reasonable charge may be assessed for such access (except for the FMC).	Except for exempt commodities, tariffs showing all rates, terms and charges are filed with the FMC and publicly available.
	Carriers and shippers must comply with tariffs.	Carriers and shippers must comply with tariffs.
Independent Action ("IA") for Tariffs	Each member of a conference has the right to take IA on no more than 5 days' notice. The right of IA extends to exempt commodities.	A member of a conference has the right to take IA on no more than 10 days' notice. Conferences could restrict or prohibit the exercise of IA for exempt commodities.
Carrier Agreements	Ocean carrier agreements and agreements with or among marine terminal operators must be filed with FMC.	Same.
Antitrust Immunity	Provides antitrust immunity to ocean carrier agreements filed with FMC or exempt from filing and to any activity or agreement within scope of Act, whether permitted or prohibited, undertaken with reasonable basis to conclude it is pursuant to a filed agreement or is exempt from filing or publication.	Same.
Prohibited Acts (Selected)	Carriers must provide service in accordance with rates and terms in tariffs or service contracts.	<BR< rebates. against prohibition same but language, specific
	Carriers' tariffs cannot unjustly discriminate among shippers or give any undue or unreasonable preference to a shipper.	Same.
	Carriers' service contracts cannot unjustly discriminate against ports. The service contracts entered into by a conference or group of ocean common carriers also cannot unjustly discriminate against any locality or persons due to their status as shippers' associations or ocean transportation intermediaries.	The discrimination provisions apply in part to the service contracts of both individual carriers and conferences, but there is no specific discrimination protection for shippers' associations or NVOCCs.
	A carrier or carriers cannot use a vessel or vessels in a particular trade for the purpose of excluding, preventing or reducing competition, by driving another ocean common carrier out of that trade.	Prohibition against use of a fighting ship.
	A carrier or carriers cannot unreasonably refuse to deal or negotiate.	The prohibition against unreasonable refusal to deal extends to any person, locality or description of traffic. The prohibition against refusal to negotiate applies only to shippers' associations.
Joint Carrier Negotiations for Inland Transportation	Carriers may jointly negotiate with railroads, trucking companies or airlines for transportation within the U.S., provided that such negotiations and any resulting agreements are in compliance with antitrust law standards and are consistent with the purposes of the Shipping Act.	Prohibits carriers from any joint negotiations with railroads, trucking companies or airlines for transportation within the U.S.
Freight Forwarders and NVOCCs	Both freight forwarders and NVOCCs are referred to as ocean transportation intermediaries ("OTI"). No person may act as OTI in the US unless it is licensed.	Ocean freight forwarders in the U.S. must be licensed but there is no licensing requirement for NVOCCs in the U.S.
	A conference or agreement of carriers cannot agree to pay an OTI, who is acting as a freight forwarder in the U.S., compensation which is less than 1.25% of the aggregate of all charges assessed against the cargo and cannot deny any member the right to take IA on such forwarder compensation. All OTI's must have a bond or other financial security in an amount established by the FMC.	The 1.25% minimum level of compensation required to be paid by conferences and the right of IA applies only to U.S. freight forwarders who are customs house brokers.
Protection Against Rate Practices of Foreign Carriers	Amends Section 19 of Merchant Marine Act, 1920, to expressly authorize the FMC to take action against owners, operators, agents or masters of vessels of a foreign country if it finds that their pricing practices are unfavorable to shipping in the foreign trade.	Section 19 makes no specific reference to pricing practices.