46 U.S.C. § 41109 — Assessment of penalties
submitted 20 years ago by Pub. L. 109-304 to r/title-46-SHIPPING · 565 words · no verdicts yet
Before a case goes to the Attorney General, the Federal Maritime Commission can, after a hearing, fine a violator, order a refund, or both, weighing factors like fault and ability to pay - with a 5-year filing deadline and court review of the final penalty.
(a) General Authority: Until a matter goes to the Attorney General, the Federal Maritime Commission may, after notice and a hearing, (1) assess a civil penalty, or instead (or in addition), order a refund of money - including extra amounts under section 41305(c) - subject to the rule in (b)(2); and (2) later compromise, reduce, or cancel that penalty or refund, with or without conditions.
(b) Determination of Amount: (1) In deciding the penalty or refund amount, the Commission must weigh the nature, circumstances, extent, and seriousness of the violation; the violator's degree of fault, history of past violations, and ability to pay, plus anything else justice requires; and the size of any refund already ordered. (2) If the Commission orders both a refund and a penalty, the penalty must be reduced by any part of the refund that goes beyond the actual injury (as defined in section 41305(a)). Any refund counts as compensation to the claimant and must be subtracted from any damages the claimant later wins in a separate lawsuit over the same violation.
(c) Exception: No penalty or refund under (a)(1)(A) or (B) can be imposed for conspiring to violate section 41102(a) or (d), or section 41104(a)(1) or (2), or for conspiring to defraud the Commission by hiding such a violation.
(d) Prohibited Basis of Penalty: Neither the Commission nor a court may order someone to pay the difference between a price a carrier billed and agreed to in writing and the price listed in its official tariff or service contract*.
(e) Time Limit: A case to assess a penalty or order a refund under this section must start within 5 years of the violation.
(f) Review of Civil Penalty: Anyone fined or ordered to refund money under this section may get judicial review under chapter 158 of title 28.
(g) Civil Actions To Collect: If someone doesn't pay a final penalty or refund, the Attorney General - at the Commission's request - may sue to collect it in the right U.S. district court. The court must enforce the Commission's order unless it finds the order wasn't properly and duly issued.
Until a matter is referred to the Attorney General, the Federal Maritime Commission may—
after notice and opportunity for a hearing, in accordance with this part—
assess a civil penalty; or
in addition to, or in lieu of, assessing a civil penalty under subparagraph (A), order a refund of money (including additional amounts in accordance with section 41305(c)), subject to subsection (b)(2); and
compromise, modify, or remit, with or without conditions, a civil penalty or refund imposed under paragraph (1).
In determining the amount of a civil penalty assessed or refund of money ordered pursuant to subsection (a), the Federal Maritime Commission shall take into consideration—
the nature, circumstances, extent, and gravity of the violation committed;
with respect to the violator—
the degree of culpability;
any history of prior offenses;
the ability to pay; and
such other matters as justice may require; and
the amount of any refund of money ordered pursuant to subsection (a)(1)(B).
In any case in which the Federal Maritime Commission orders a refund of money pursuant to subsection (a)(1)(B) in addition to assessing a civil penalty pursuant to subsection (a)(1)(A), the amount of the civil penalty assessed shall be decreased by any additional amounts included in the refund of money in excess of the actual injury (as defined in section 41305(a)).
A refund of money ordered pursuant to subsection (a)(1)(B) shall be—
considered to be compensation paid to the applicable claimant; and
deducted from the total amount of damages awarded to that claimant in a civil action against the violator relating to the applicable violation.
A civil penalty or refund of money under subparagraph (A) or (B), respectively, of subsection (a)(1) may not be imposed for conspiracy to violate subsection (a) or (d) of section 41102 or paragraph (1) or (2) of section 41104(a) or to defraud the Commission by concealing such a violation.
The Commission or a court may not order a person to pay the difference between the amount billed and agreed upon in writing with a common carrier* or its agent and the amount set forth in a tariff or service contract* by that common carrier for the transportation service provided.
A proceeding to assess a civil penalty or order a refund of money under this section must be commenced within 5 years after the date of the violation.
A person against whom a civil penalty is assessed, or that is ordered to refund money, under this section may obtain review under chapter 158 of title 28.
If a person does not pay an assessment of a civil penalty or a refund required under this section after it has become final or after the appropriate court has entered final judgment in favor of the Commission, the Attorney General at the request of the Commission may seek to collect the amount assessed in an appropriate district court of the United States. The court shall enforce the order of the Commission unless it finds that the order was not regularly made and duly issued.
Source credit: (Pub. L. 109–304, § 7, Oct. 6, 2006, 120 Stat. 1544; Pub. L. 117–146, §§ 8(a)(2), 15(b), June 16, 2022, 136 Stat. 1276, 1279.)
- 2006Enacted · Pub. L. 109-304 · 120 Stat. 1544
- 2022Amended · Pub. L. 117-146 · 136 Stat. 1276, 1279
A history note hasn’t been published yet. The record shows enactment by Pub. L. 109-304 on 2006-10-06.
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