In contrast to the issues here, at the time, marine terminals were required to compensate truckers for delays. 12 F.M.C. at 170 (requiring adoption of a rule that “will compensate the truckers for unusual truck delays caused by or under the control of the terminals”). The Commission said that marine terminals only had to pay a fee when delays were within their control. Here, however, it is shippers, intermediaries, and truckers who are arguing that they should not have to pay a fee due to delays outside their control. In other words, Trucker Lighter does not stand for the proposition that marine terminal operators can impose fees when delays are outside of their control. Demurrage and detention disputes, are likely to fall on the unreasonable end of the spectrum.” The Commission then listed examples of ideas proposed by shippers and truckers that could be incorporated into dispute resolution policies.
Nor is the interpretive rule discriminatory within the meaning of the Shipping Act. There is nothing discriminatory about the Commission describing factors that would help ensure that ocean carriers and marine terminal operators comply with their preexisting duty under section to ensure their practices are reasonably tailored to match their purposes. Further, the “discrimination” the Shipping Act is concerned with is discrimination by ocean carriers and marine terminal operators against shippers and others in the industry, not so-called discrimination by the Commission against the entities it oversees. This general purpose aligns with the more specific mandate in section that the Commission determine the reasonableness of certain carrier and marine terminal operator practices. In sum, it is consistent with the purposes of the Shipping Act for the Commission to address the concerns of American importers, exporters, intermediaries, and truckers. Most of the comments about this aspect of the rule reflect disagreement about who should bear the burden of providing evidence relevant to demurrage and detention issues.
Interpretive Rule on Demurrage and Detention Under the Shipping Act
The Commission interprets these comments as saying that in a “force majeure” situation, e.g., a port is completely closed due to weather, commenters incur costs related to containers and terminal property, and if they cannot charge demurrage or detention, they have to absorb those costs. Again, part of the problem is that the commenters treat a factor in the reasonableness analysis—the incentive principle—as creating bright line rule, and they further assume the Commission would be incapable of exercising common sense when applying the factors. As explained above, nothing precludes the Commission from considering whether demurrage and detention have some compensatory aspect when determining the reasonableness of specific practices in individual cases. This is not to say that shippers and intermediaries do not negotiate certain aspects of demurrage and detention, such as free time, in service contracts. But many, if not, most, shippers lack significant bargaining power as compared to ocean carriers.
In all instances, the complainant bears the ultimate burden of proving unreasonableness. The Commission’s guidance also does not qualify as a legislative rule under the final two American Mining criteria. The Commission did not invoke its general legislative authority to issue its interpretive rule. The Commission’s authority to npbfx review issue interpretive rules and policy statements derives from the APA. The only reference to the Commission’s general rulemaking authority under 46 U.S.C. 305 in the NPRM copies the preexisting authority citation for part 545 of the Commission’s regulations. And the Commission’s rule does not amend any prior legislative rule.
Others assert that free time and demurrage and detention clocks should stop when containers become non-accessible due to situations beyond the control of shipper or trucker. Still others request that the Commission define “container availability,” that the Commission expressly address things like terminal hours of operation vis-à-vis free time, appointment systems, and that the concept of availability should include chassis availability. Nor does the Shipping Act necessarily require common carriers to apply all tariffed charges without exception. Section requires that ocean carriers provide service in accordance with their rules and practices.
D. Applicability and Scope of Rule
At 2; Nat’l Indus. League at 16; Nat’l Retail Fed. at 2; NYNJFFFBA at 10-11; Harbor Trucking Ass’n at 2; NAWE at 20. Some commenters suggested that demurrage and detention disputes be subject to binding arbitration. See NYNJFFFBA (“The NYNJFFBA would like to suggest that disputes that cannot be easily solved between the parties be decided by binding decision of an impartial arbitrator. Perhaps more authority can be given to CADRS or parties incorporate the use of arbitrators in their contracts and agreements.”); Transworld Logistics Shipping Services Inc. at 5. 254.E.g., Retail Indus. AgTC at 3 (“It is also clear that the penalties have now become a significant revenue source for the carriers.”); Mohawk Global Logistics at 5; NCBFAA at 7; Lee Hardeman Customs Broker, Inc. at 1 (arguing that demurrage and detention are “CLEARLY revenue streams from frequently unreasonable application of them”); Bunzl Int’l Servs.
When winding down peak season, there are typically more empty containers being returned than full containers available to pick up, so single empty returns are more commonly needed, and without inbound loads, dual moves are hard to effect. When terminals go for days without accepting single moves, the trucker is stuck holding the container, usually on a chassis that is being charged for daily, and in a storage yard that is also charging daily. When a few single slots open up, everyone scrambles to get there with empties, quickly closing the yard down again.
The rule does not change that framework. A complainant would still have the burden of proving all the elements of a section claim under 46 CFR 545.4, including proving by a preponderance of the evidence that the demurrage or detention practice or regulation at issue is “unjust or unreasonable.” It is true that the rule might help a complainant prove that element by giving guidance about what sort of arguments and evidence the Commission is likely to find relevant. Setting forth factors that the Commission might consider in a case, however, does not shift the burden of proof. The NPRM attempted to provide guidance on these principles while making sure that the proposed interpretive rule was flexible enough to account for the variety of marine terminal operations nationwide and to allow for innovative commercial solutions to commercial problems. 377.See, e.g., Best Transp.
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But this possibility is insufficient reason to ignore the incentive principle. This should allay some of the concerns raised by commenters like the American Association of Port Authorities that the rule would prevent marine terminal operators from being compensated for use of terminal space. Ass’n of Port Auth. SSA Marine at 2; WCMTOA at 5 n.2 (asserting that rule “will encourage an explosion of litigation by shippers and truckers who do not want to pay demurrage or detention”); see also NAWE at 13.
Bench Warrant Issued – Copy Filed (Changes case management status, see Note 1 below.) Cases with this code display in JIS case history with a warrant status of I . Bench Warrant (Changes case management status, see Note 1 below.) Cases with this code display in JIS case history with a warrant status of I . Sheriff’s Return on Warrant of Arrest (Changes case management status, see Note 1 below.) Cases with this code display in JIS case history with a warrant status of N .
Interim Report at 12; see also FMC Demurrage Report at 18 (“There are exceptions to the application of demurrage fees known sometimes as “stop the clock” provisions.”); id. at 33 (“Carriers may “stop the clock,” waive, reduce or compromise fees relating to congestion if they have the flexibility to do so under their tariff or service contract.”). But see Interim Report at 12 (“everal produced tariffs that specifically state that free time is not automatically extended for events outside the terminal’s control, including labor strikes or weather, and at least one said that in those circumstances free time would not be adjusted.”). Mining Cong., 995 F.2d at 1112 (“The protection that Congress sought to secure by requiring notice and comment arum capital review for legislative rules is not advanced by reading the exemption for `interpretive rule’ so narrowly as to drive agencies into pure ad hocery—an ad hocery, moreover, that affords less notice, or less convenient notice, to affected parties.”). Terminal operator schedules. Consequently, to the extent the Commission considers the “accessibility” of demurrage and detention definitions under section 41102, the factor will not be construed or weighed such that minimum compliance with the applicable tariff and schedule requirements would tend toward a finding of unreasonableness. On the other hand, providing additional accessibility of such definitions above and beyond the requirements will be viewed favorably in any reasonableness analysis.
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By listing examples of ideas that would weigh favorably—ideas suggested by shippers and truckers—the Commission was not mandating a specific practice. Commenters point out, there is no direct commercial mechanism for shippers to negotiate demurrage provisions directly with marine terminal operators, since shippers contract instead directly with ocean carriers. And few shippers or intermediaries want to receive separate invoices from ocean carriers and marine terminal operators. Marine terminal operators and ocean carriers also prefer that billing be tied to contractual relationships. In light of these comments, the Commission does not intend to consider the use or nonuse of this billing model in determining the reasonableness of demurrage and detention policies. The rule indicates that the Commission is particularly interested in demurrage and detention dispute resolution policies, and consequently, the Commission may consider the extent to which they contain information about points of contact, timeframes, and corroboration requirements.
- If a docket code may result in a change in case management status, refer to the Case Management Status Codes section for detailed information.
- When a few single slots open up, everyone scrambles to get there with empties, quickly closing the yard down again.
- To be clear, the Commission agrees in general with the assumption that a shipper or its agent has or can obtain the equipment necessary to retrieve cargo.
- Similarly, the Commission has permitted deviations from tariff rates when parties settle bona fide disputes.
- There have historically been very few formal Shipping Act complaints filed regarding demurrage and detention.
First, the Commission clarified that it may consider in the reasonableness analysis the extent to which demurrage practices and regulations relate demurrage or free time to cargo availability for retrieval. If, the Commission stated, shippers or truckers cannot pick up cargo within free time, then demurrage cannot serve its incentive purpose. Put slightly differently, if a free time practice is not tailored so as to provide a shipper a reasonable opportunity to retrieve its cargo, it is not likely to be reasonable. As for concerns that shippers will game the system to get more free time, the rule presupposes that shippers, intermediaries, and truckers have complied with their customary obligations, including those involving cargo retrieval.
J. Demurrage and Detention Policies
Although the rule is derived from Commission’s Fact Finding Investigation No. 28, that investigation itself was just the Commission’s latest attempt to reconcile shipper and trucker complaints about ocean carrier and marine terminal operator demurrage and detention practices with the latter groups’ insistence that the transportation system was working well and that Commission action was unnecessary. Importers, exporters, intermediaries, and truckers should not be penalized by demurrage and detention practices when circumstances are such that they cannot retrieve containers from, 12trader or return containers to, marine terminals because under those circumstances the charges cannot serve their incentive function. Shippers, intermediary, and trucker comments are no more self-interested than comments from ocean carriers, marine terminal operators, or chassis providers. First, demurrage rules and charges are not reasonable when they do not serve to incentivize the behavior of shippers and receivers to encourage the efficient use of rail assets. In other words, charges should not be assessed in circumstances beyond the shipper’s or receiver’s reasonable control.
B. General Policy Comments to Rule
To be clear, the rule is not limited to import shipments and applies to export shipments as well. In particular, the guidance on the incentive principle, demurrage and detention policies, and transparent terminology would apply in situations involving exports. The NPRM preamble focused on import issues because imports were the focus of the Fact Finding Investigation and most of the complaints. In the NPRM, the Commission explained that the reference to containerized cargo included cargo in refrigerated containers. Given that the lack of standard terminology in the industry, the rule defines “demurrage” and “detention” broadly to cover all charges customarily referred to as demurrage, detention, or per diem. The rule specifically limits these definitions to “shipping containers” to exclude charges related to other equipment, such as chassis, because depending on the context, “per diem” can refer to containers, chassis, or both.
SSA Marine at 1; Nat’l Indus. League at 5 (“Demurrage and detention practices should be applied to serve their intended purpose, with correct financial incentives to promote freight fluidity.”); NCBFAA at 5. OCEMA at 3 ; Ports Am. At 2 (claiming rule would “effectively prohibit private parties from negotiating how the risk of events beyond either’s control . . . are to be allocated, putting all the burden completely on the terminal operator and or/carrier”); WSC at (describing rule as substantially restricting parties from defining the commercial terms and conditions of their own contractual relationships”). This commenter argues that if a carrier waives or deviates from the provisions in its bill of lading, “it could theoretically” void its protection and indemnity insurance. This concern is on its face speculative and was not raised by ocean carrier commenters themselves.
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