An importer receives an invoice for EUR 48,000 for eight containers that remained at the Le Havre terminal for three months, held up first by a customs inspection and then by a dispute with its supplier. It discovers a progressive daily rate whose scale it had never seen. What can it challenge?
Where these charges come from
The carrier supplies the container and grants a free time allowance at the port of discharge. Beyond that, it charges demurrage for as long as the full container remains at the terminal, then detention for as long as the empty container has not been returned. The rate is set by the bill of lading terms and by a scale published by the shipping line, which is often progressive.
Grounds for challenge
Free time and the starting point. The date on which the goods were actually made available, the arrival notice, public holidays and the contractual free time must all be checked. Extended free time negotiated with the line at booking must be proved in writing.
The enforceable rate. Is the scale applied incorporated into the contract? Was it accessible at booking? An increase during the voyage can be challenged.
The debtor. The bill of lading identifies who pays. A freight forwarder or a commissionnaire de transport (a forwarder acting in its own name for the account of its principal) that did not take delivery on its own account may dispute that it is the debtor.
The cause of the delay. A delay attributable to the carrier (late availability of the goods, documentary error) cannot benefit it.
Disproportion. Where the charges greatly exceed the value of the container, arguments based on a duty to mitigate loss or on an excessive penalty clause are open to debate.
The one-year time bar
The Cour de cassation has held that the provision of containers, where it is not the subject of a separate contract or of invoicing distinct from the freight, forms a necessary and ancillary part of the carriage operation; a claim for payment of container delay charges is therefore subject to the one-year limitation period applicable to claims arising from the contract of carriage, which runs from the day on which delivery was due (Cass. com., 3 December 2013, no. 12-22.093, published in the Bulletin). An invoice issued more than one year after the date on which delivery was due may therefore be time-barred, even if the charges continued to accrue afterwards.
What the firm checks first
- The dates: arrival, notice, availability, gate-out from the terminal, return of the empty container.
- The applicable free time and rate scale.
- The debtor named in the bill of lading.
- The cause of the delay.
- The one-year time bar and when it starts to run.
For the firm’s services, see Chartering and demurrage and Carrier liability at sea.
Further reading
- Cargo not collected at the port of discharge: storage, sale and who pays
- The one-year time limit against the sea carrier: interrupting it, extending it, claiming over
- Demurrage: calculation, challenge and time limits
This analysis is part of the firm’s work in maritime law.
Frequently asked questions
Is container demurrage subject to a one-year time bar?
The Cour de cassation has so held where the provision of containers is ancillary to the carriage and not invoiced separately (Cass. com., 3 December 2013, no. 12-22.093).
When does the time limit start to run?
From the day on which delivery was due, according to that judgment, and not from the date of the invoices.
Does the freight forwarder have to pay the demurrage?
That depends on its capacity as stated in the bill of lading and on the contract. An agent that did not take delivery on its own account may dispute it.