Adrián Guzmán Sánchez, AS Consultores, Mexico
In the logistics world, the Freight Forwarder is the provider of specialized services that, acting as a third party between the user and the carrier, develops and coordinates logistics activities for the transportation of goods from one point to another.
The means of transport used for the movement of merchandise to various geographical points are mainly plane, ship, truck and rail. However, during the daily operation there may be problems in the transportation and physical flow of the goods, generating extraordinary expenses for the Freight Forwarder or customer.
An extraordinary or additional cost that is very frequent in this logistics world are the DEMURRAGE, which is the charge that the shipping companies make for the time in excess of the use of the container to amortize the damage generated by the lack of timely delivery. It could even be considered an abusive and lucrative collection practice carried out by shipping companies due to delays in container deliveries.
It is valid to question being a Freight Forwarder, if the charges of demurrage are valid or they should be put in dispute with the shipping company.
Next, an inadmissible charge of demurrage is exemplified and presented:
- The Freight Forwarder asks the shipping company to provide multimodal service under a DOOR-CY service.
- It is a direct export operation where the Bill of Lading does not include the Freight Forwarder, a service provided by the direct shipping company to the shipper and consignee, and therefore without direct responsibility to the Freight Forwarder
During the acceptance and provision of service, the shipping company has prior knowledge of the blocking of the railway tracks where the goods will be transported for arrival at the port and subsequent shipment.
The situation of the blocking of the railway was not considered by the shipping company, knowing the risk and its responsibility it continued with the proper steps of empty pickup, positioning, platform loading, estimated time of departure, arrival at terminal and shipment of the merchandise.
The blockade of the railway tracks caused the goods to arrive 20 days later at the terminal and not be shipped in time, therefore demurrage were generated requesting by the shipping company be paid.
It is recommended to analyze the terms and conditions of the Bill of Lading and applicable legislation in accordance with the mode of transport, in order to interpret the legal precepts and verify if there is any way of defense to the inadmissible charges of demurrage.
For the approach of this specific case, the clauses to verify are carrier’s liability and responsibility, force majeure event, applicable legislation in case of any dispute with the shipping company, among others.
It is also important to consider the following points for a justified response to the shipping company:
- The Master Bill of Lading is direct, therefore the responsibility for payment of demurrage must be notified to the shipper / consignee of the Bill of Lading, directly responsible and to whom the transportation service was provided.
- It is a multimodal operation carried out by the shipping line and a service offered Door-CY, so that service includes from the empty pickup, positioning, platform loading, land transportation by rail and shipment of the merchandise.
- The blocking of the railway tracks is force majeure, a cause of breach of obligations due to unpredictable and irresistible events. The legal precept “To the impossible, nobody is obliged”
- The shipping line was aware of the blocking of the railway, with the possibility of terminating the contract but its responsibility continued with the transport and shipment of the merchandise.
These considerations it could be indicated to the shipping line the inadmissibility and dispute of the demurrage, under the arguments of no direct responsibility of the Freight Forwarder by not intervening in any way in the hiring of land transport, and the event is considered force majeure and therefore there is no possibility to demand compliance and payment obligation for demurrage.