FMC QUESTIONS PORT SURCHARGE FROM
At the urging of the
NCBFAA, the FMC issued
the attached release on November 17, which can also be found
on the agency's website. In the view of the
Association, this means that the carriers cannot
properly assess any congestion or other surcharges on cargo that was in their possession or control at the time the implementation of the surcharges was in place.
The Association is aware
that some carriers believe that they still
can assess these surcharges because many of
them previously published congestion surcharge rules and are taking the position that the surcharges are accordingly appropriate because everyone had notice that such costs might be imposed. While the
NCBFAA disagrees with
that position, all companies should
be aware of this ruling by the FMC and consult with their
own counsel if necessary to determine what position to take
at this time.
Nonetheless, the Association will continue to seek clear guidance from the FMC on this important issue.
Port Congestion Surcharges
November 17, 2014
The Federal Maritime Commission is receiving numerous inquiries regarding the congestion surcharges for "labor unrest" being
implemented by ocean carriers as announced in tariff
rules required to be
published under the Shipping Act of 1984 and the
Commissionís regulations at 46
CFR Part 520.
pursuant to a waiver
or exemption, any tariff
rule (including surcharges) of a common carrier
that results in an increased cost to a shipper may
not be effective earlier
than 30 days after
publication. 46 U.S.C. ß 40501(e) and 46 CFR ß 520.8. Many carriers previously published in their tariffs advance or conditional notice
of an intention to implement surcharges in the event certain conditions are experienced. All such carrier tariff rules, however, must be clear and definite as to
the implementation and termination of the surcharge based upon
specific criteria related to "labor unrest."
The Shipping Act and the Commissionís regulations require that the
rules applicable to any
given shipment shall
be those in effect on the date the cargo is received by the
common carrier or its agent.
46 CFR ß 520.7. Thus, if any labor disruption were to occur at a port
after cargo has been tendered by a shipper, a carrier may only lawfully charge the rates in effect
on the day the cargo is tendered.
The Commission continues to review congestion surcharge rules published in carrier tariffs and is gathering information from carriers regarding implementation of these surcharges.
If you have questions or concerns about a
tariff publication, please contact the Bureau of Trade Analysis firstname.lastname@example.org. For questions about the Shipping Act or the Federal Maritime Commissionís regulations, please contact the Office of the General Counsel at email@example.com.
Our regulatory experts are monitoring the situation and keeping a
close eye on labor negotiations, which began on May 12, 2014. In the meantime
we are checking shipment status on a daily/hourly basis to see where our
clientís cargo stands in movement towards its final destination. While we
canít control the situation we can keep you informed.
contained in this newsletter has been compiled from various industry
newsletters and other public sources. While we use reasonable efforts to
furnish accurate and up-to-date information Page & Jones, Inc. is not
liable or responsible for the accuracy or reliability of any information