MSC Mediterranean Shipping Company statement on Federal Maritime Commission Administrative Law Judge Wirth’s Judgment of 13 January 2023, MCS Industries Case
MSC is disappointed with the initial decision, as MSC has sought diligently to persuade the FMC to invoke the procedures required to fully comply with both U.S. and Swiss law when producing documents. The decision is not a decision on the merits, and it is not final. MSC will timely appeal the decision, upon which time the decision will, under the Commission’s rules, “become inoperative until the Commission determines the matter.”
By its terms, the decision does not address the merits of any of the claims against MSC, and MSC continues to believe that the claims are meritless. The decision is based on a procedural finding that misapprehends the Swiss law issues that preclude MSC from complying with FMC’s prior discovery order. No Swiss authority has held that MSC could produce the information consistent with Swiss criminal law without appropriate authorization. To the contrary, Swiss authorities at the very highest level have confirmed that MSC must follow the well-established procedures under the applicable international conventions to which both the U.S. and Switzerland are parties.
The Shipping Act also directly addresses how to deal with “blocking statutes”, such as the Swiss blocking statute at issue here, in 46 U.S.C. § 41108 (c)(2):
“(2) Defense based on foreign law.--If, in defense of its failure to comply with a subpoena or discovery order, a common carrier alleges that information or documents located in a foreign country cannot be produced because of the laws of that country, the Commission shall immediately notify the Secretary of State of the failure to comply and of the allegation relating to foreign laws. On receiving the notification, the Secretary of State shall promptly consult with the government of the nation within which the information or documents are alleged to be located for the purpose of assisting the Commission in obtaining the information or documents.”
MSC has proposed this process to the FMC as a means to resolve the discovery dispute and allow the case to be decided on the merits, and has received confirmation from the Swiss government that the agreed upon treaty procedures must be used.
MSC has investigated the matter and has concluded that MCS Industries’ difficulties with its cargo bookings arose from errors and communication issues between MCS Industries and third-party intermediaries, and not from any wrongdoing by MSC. MCS Industries is seeking to hold MSC liable for not carrying cargo MCS never asked it to carry, and the decision to award it damages for harm it has never proved is in error.
Journalists may also wish to refer to MSC's earlier public statements on the matter, including:
MSC Statement 2022-09-23
MSC Statement 2021-08-05