The International Safe Container Act (ISCA, 46 U.S.C. 80501-80509), signed into law in 1977, details the requirements for application and compliance with the International Convention for Safe Containers signed in 1972 in Geneva. The Convention was motivated by the need to maintain a “high level of safety of human life in the handling, stacking and transporting of containers, to facilitate international container transport and the recognition of the advantage of formal, uniform common international safety requirements.
The Act applies to an owner of a container used in international transport if the owner is domiciled or has its principal office in the United States. The Act provides the United States Coast Guard with authority to examine and inspect containers used in international transport not only to make sure that they are sound, but also to ensure that they are in compliance with the Federal Hazardous Materials Transportation Law (49 U.S.C. 5101-5127) and ISCA. The Act authorizes the Coast Guard to issue a detention order removing or excluding a container from service until the owner shows that the container meets the standards of the Convention. It may also require the container to be moved to another location for repair or other disposition. It may require unloading and special handling necessary to ensure safety. (The Coast Guard is charged with inspection of general cargo to ensure hazardous materials are not being shipped illegally as undeclared hazardous materials are a leading cause of transportation accidents.) The order will remain in effect until the container is found to be in compliance with the standards of the convention or is permanently removed from service. The owner of a container involved in such an action is required to reimburse or pay for the expenses arising from issuance of the detention order.
Additionally, the owner who has been notified of a detention order and fails to take reasonable and prompt action to prevent or stop a container subject to an order from being moved is liable for a civil penalty of not more than $5000 per day for each such container moved. Each day the container remains in service in violation of the order is a separate offense. The owner does have the right to appeal and seek review of the order. The Coast Guard will then appoint an independent surveyor to inspect the container. Once the survey is reviewed the Coast Guard may affirm, set aside or modify the order. It should be noted that the owner is liable for the costs incident to the petition for review including the cost of the survey and any other costs incident to or resulting from the detention.
Importantly, the Act also provides whistle blower protection to employees who bring to the attention of their employers containers in violation of the standards, and specifically states that any retaliatory act against a person is strictly prohibited and the employer may not discharge or discriminate against an employee because the employee has reported the existence of an unsafe container or a violation of a regulation found in the Act. The employee alleging to have been the victim of retaliatory acts must file his complaint with the Secretary of Labor within sixty days of the violation. After investigation, if the Secretary finds there has been a violation, he may bring a civil action in federal court to restrain the wrongful conduct and order “appropriate relief, including reinstatement and back pay.” This could include payment of attorney’s fees and costs. Retaliatory acts can include assigning to undesirable shifts, demoting, disciplining, intimidating, reducing hours or pay, or reassignment.