NCBFAA asks FMC for procedures to address port congestion

   Concerned about a possible strike at West Coast ports as the International Longshore and Warehouse Union and employers negotiate a new contract to replace their labor agreement that expires at the end of this month, the National Customs Brokers and Forwarders Association of America (NCBFAA) is asking the Federal Maritime Commission to consider procedures addressing port disruptions resulting from unusual occurrences such as major force majeure events or labor-related difficulties.
   In a letter to FMC Chairman Mario Cordero, NCBFAA General Counsel Edward Greenberg asked the FMC to:

• Require carriers to develop and publicize their contingency plans concerning how they would provide service for cargoes moving into or out of the various U.S. ports during periods of unusual disruption events.
• Require carriers and marine terminal operators to amend their demurrage and detention tariffs to exclude any penalty portion of those charges from being assessed while those events were pending.
• Create an internal clearing house for information relating to the timing and amounts of congestion-related surcharges that would be available to the public on the FMC’s website. “There is no central place that parties can go to ascertain how, when or whether those surcharges will be implemented,” Greenberg wrote. “As was the case with Hurricanes Sandy and Katrina, this situation will undoubtedly result in significant additional costs, confusion and concern among OTIs and beneficial cargo owners.” 

   Last week the FMC issued an advisory in response to what it said were “numerous informal inquiries” about congestion surcharges and said that “unless done 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.”
   The FMC said its regulations and the Shipping Act “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.
   “Thus, if any cargo-related 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. These regulations apply both to import and export cargo.”
   Greenberg, who enclosed copies of congestion surcharge notices from Hapag-Lloyd, Zim, and UASC with his letter, told Cordero that carrier-provided tariff publications and announcements have been “so indefinite as to be inconsistent with the commission’s regulations pertaining to the need to provide the public with accurate, reliable and useful information concerning the charges to be assessed.”