FMC Draws a Line on Carrier Coordination: Implications of the Commission's WSC Agreement Order

The Federal Maritime Commission (FMC or Commission) on March 6, 2026, issued a significant Order on Investigation in Docket No. 25‑10, cancelling substantial portions of the World Shipping Council's (WSC) Cooperative Working Agreement and giving WSC 60 days to file an amended agreement on a more narrow scope of operational matters. The decision reinforces a core principle that ocean carrier antitrust immunity under the Shipping Act is limited to operational shipping activities, not broad policy or advocacy initiatives.

Background

The WSC, a trade association that reports that its members account for approximately 90 percent of global liner vessel capacity, filed FMC Agreement No. 201349 in October 2020 as a "cooperative working arrangement" (the Agreement). The Agreement, as amended, ultimately authorized participating carriers to exchange information and develop voluntary, nonbinding positions across seven categories of activities ranging from environmental and safety matters to legal, regulatory and policy advocacy.

In June 2025, the FMC initiated an investigation to determine whether the Agreement properly fell within the Commission's jurisdiction under 46 U.S.C. § 40301(a)(5), the statutory provision governing cooperative working arrangements. The FMC issued an Order to Show Cause questioning whether several categories of Agreement activity were permissible operational activities or fell beyond the scope of the Shipping Act's limited antitrust exemption.

WSC responded to the Order by asserting that the Agreement was initially filed when WSC determined that its activities had evolved from external advocacy into including operational cooperation among members, a decision that required filing an FMC agreement, and that the entire scope of the resulting Agreement qualified as a cooperative working arrangement. The Commission disagreed.

The Commission's Legal Framework

Central to the Order is the Commission's reaffirmation that cooperative working arrangements under 46 U.S.C. § 40301(a)(5) are a narrow, catch-all category that covers only arrangements "similar in type" to the specifically enumerated operational agreements in Section 40301(a)(1)-(4) and (6)-(7), such as agreements to fix or regulate transportation rates and other conditions of service, pool traffic or revenues, allot ports or voyages, regulate cargo volumes, control competition or discuss matters related to service contracts. In Federal Maritime Commission v. Seatrain Lines, Inc., 411 U.S. 726, 734 (1973), the U.S. Supreme Court held that the "exclusive, preferential, or cooperative working arrangement" language in the predecessor statute must be read as a catch‑all directed only to agreements similar in nature to those specific operational categories. Relying on Seatrain and related legislative history, the Commission concluded that WSC's collective work on broad legal, regulatory and public policy positions (including competition law, international trade and tax regimes, and generalized trade association advocacy) is not the kind of operational carrier cooperation Congress intended to bring within Section 40301(a)(5) or immunize from antitrust scrutiny.

Activities Outside FMC Jurisdiction: Canceled

Applying this framework, the FMC concluded that three categories of activity authorized by the WSC Agreement fall outside the scope of a lawful cooperative working arrangement and must be canceled:

• Article 5.1(b). Legal and regulatory matters related to competition and antitrust laws
• Article 5.1(c). Positions on international agreements, treaties and trade laws
• Article 5.1(g). Trade association and public policy advocacy activities

The Commission found these provisions to be fundamentally policy‑oriented, insufficiently connected to carrier operations and, therefore, not entitled to Shipping Act antitrust immunity. These sections of the Agreement will be canceled effective 60 days from the Order.

Activities Under Scrutiny: Allowed Only with Justification

Two additional categories – covering infrastructure and supply chain requirements, as well as information technology, customs and data submission matters – were not canceled outright. However, the Commission expressed serious doubts that these activities – which appeared to the Commission to mainly involve high-level policy and best practices endeavors – qualify unless WSC can demonstrate that they involve direct operational activities in connection to ocean transportation services.

WSC has been given 60 days to submit a narrowed, amended agreement and supporting justification explaining how any retained activities meet the statutory standard.

Activities Likely Within Scope: But Also Requiring Further Justification

The Commission found that two categories – environmental and climate‑related operational matters and safety and security issues – are likely within the proper bounds of a cooperative working arrangement because they directly relate to carrier operations, such as vessel emissions, dangerous cargo handling and vessel safety. Even these provisions, however, must be justified in an amended filing.

Concluding Thoughts

The Commission's decision in Order on Investigation in Docket No. 25‑10 reasserts the Commission's positions on permissible coordination in carrier agreements insisting that cooperative working arrangements remain closely tied to operational matters among carriers – and not provide a broad vehicle for antitrust exemption of other activities. At a higher level, the investigation and decision are another clear indicator of the Commission's increased regulatory and enforcement activity, a pattern that is expected to continue. Holland & Knight will continue to closely monitor this FMC docket, as well as developments at the FMC, and provide timely updates as new information becomes available.