In the saga regarding detention and demurrage, the first response to illegal charges has been received from Wan Hai, a Taiwanese carrier, to the FMC. As the FMC works to parse legal fees from illegal fees, responses are coming in that try to justify the fees that were applied when, allegedly, there were no available appointments, no equipment, or no location listed for return.
Wan Hai is being accused of, precisely, assessing detention charges, accepting proof of the invalidity of those charges because of myriad factors, and then refusing to waive the fees. Charges were assessed in 2021 costing shippers between $125 and $1,550 per container – a time when there were record delays and issues with the container return process due to the import boom sweeping U.S. shores.
In their response to the charges, Wan Hai states they did reject the request to waive charges but did not receive any evidence that appointments were unavailable or other impediments prevented container returns. Wan Hai states that when they do reject requests to waive charges, they have consistently done so without violating the Shipping Act – specifically, the interpretive rule intended to reflect the first of three general principles, which states as follows:
Importers, exporters, intermediaries, and truckers should not be penalized by demurrage and detention practices when circumstances are such that they cannot retrieve containers from, or return containers to, marine terminals because under those circumstances the charges cannot serve their incentive function.
It’s a critical subject for shippers, forwarders, and carriers to pay attention to as these decisions will likely set precedents for later fees and waivers. What this shows is that there is nothing more important than proper, timely documentation and preparation when discrepancies appear. Records of conversations, receipts of charges, and instructions should be available for verification if there is a questionable charge.
At Coppersmith, we have more than seven decades of experience dealing with issues, though never on a level we’re seeing today. If you have questions about your shipments, or documentation that shows you were improperly charged by a carrier for detention or demurrage when you were prevented from responding in a timely manner due to a situation where the carrier was at fault, contact us to determine how we can help you proceed. We’ll update the story as the FMC continues to investigate.
