The rulemaking was meant to curb what many saw as indiscriminate levying of per diem charges on containers on third-party companies that had no contractual relationship with the ocean carrier . That includes truckers , who may be forced to pay per diem charges at a marine terminal to have a container released , and customs brokers , who have gotten hit with a detention invoice for processing a customer ’ s container .
But instead of clarifying that matter , the Ocean Carrier Equipment Management Association ( OCEMA ) said in a petition to the FMC in early June that a correction the agency made to the rulemaking muddied the waters .
“ What ’ s at stake here is carriers ’ ability to charge liner demurrage .”
The correction removed a section of the rulemaking that said ocean carriers can still issue detention and demurrage invoices to motor carriers “ when a contractual relationship exists ” between the two . In place of that specific carve-out , the rulemaking ’ s later version said it aims to stop per diem charges from “ being sent to parties who did not negotiate contract terms for ocean transportation or storage of cargo with the billing party .”
OCEMA ’ s petition said the change , which was only open for public comment 11 days before the final rulemaking went into effect , “ created uncertainty with respect to invoicing motor carriers for detention and demurrage .”
OCEMA cited carrier haulage agreements in which an ocean carrier has contracts both with a shipper or consignee and a trucker for moving the containers . It said the corrected rulemaking could bar ocean carriers from billing storage and late fees on containers during instances in which a shipper is prepared to receive them , but the trucker cannot deliver them on time .
“ As amended by the correction , the result … will be that the only way for [ ocean carriers ] to avoid an apparent violation of the Shipping Act when a motor carrier is the cause of detention or demurrage charges on a through move is to allow for uncompensated use of their assets and not invoice for those charges at all ,” OCEMA said in its petition .
OCEMA further claimed that the new rulemaking was also unclear with respect to whether it also covered billing of truckers in merchant haulage , where it is the shipper that hires the motor carrier .
The association ’ s petition asked for a further 90-day delay in the effective date of the new rulemaking . But it ’ s not clear whether the petition will have any real effect on a rule that is already in place , according to one source familiar with the matter .
Along with OCEMA ’ s petition , the World Shipping Council ( WSC ) in April filed a lawsuit against the FMC in the Washington , DC , appellate court , which hears challenges to federal agency rulemakings . The WSC ’ s suit seeks to have the court determine whether the rulemaking “ is unlawful and should be set aside .” The WSC , too , has cited inconsistencies in whether truckers can still be billed detention and demurrage .
Carriers change billing
While the OCEMA and WSC challenges remain pending , shippers and truckers face immediate changes in how they pay per diem charges . The biggest change is further separation in how ocean carriers and marine terminals bill for such charges .
The Port of New York and New Jersey ’ s largest marine terminal , Maher Terminals , said in a recent customer notice that as of June 1 , Hapag-Lloyd and Cosco Shipping will collect their own demurrage charges for import containers directly instead of paying those charges through Maher . CMA CGM and Evergreen Marine will be the only ocean carriers that will allow import demurrage to be paid through Maher .
12 Journal of Commerce | July 1 , 2024 www . joc . com