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It would seem to be in the best interests of ocean carriers and marine terminal operators to provide this sort of guidance and to avoid imposing onerous evidentiary requirements on their customers, as legitimate disputes that do not get resolved informally can lead to formal action in the form of Shipping Act claims or calls for additional Commission regulation. The rule text does not address ocean carrier or marine terminal operator billing or invoicing practices. Additionally, the Commission noted that ocean carriers should bill their customers rather than imposing charges contractually-owed by cargo interests on third parties. There was significant support for the Commission’s guidance from shippers, truckers, and intermediaries, and the Commission will include the language on container availability from the proposed rule in the final rule. A number of commenters request bright line rules. For instance, several commenters argue that free time should not start until a container is available, and that starting free time before availability should be deemed an unreasonable practice.
- 327.E.g., Meat Import Council of Am.
- The operational environments and commercial conditions at terminals across the country vary significantly, and in some situations, there might not be much difference between tying free time to vessel discharge and tying it to availability.
- Mohawk Global Logistics at 6 (noting that in government hold situations, “here should be compensation to both the terminals and the carriers in these cases.”); Agregar Consultoria at 1.
The Commission is therefore retaining this language about the “existence” of policies in the final rule. The comments about this paragraph of the rule were generally of two types. Shippers, intermediaries, and truckers strongly support notice of cargo availability and urged that the Commission require such notice and specify what information a notice must contain. Marine terminal operators opposed the Commission requiring any particular type of notice.
EMO Trans Atlanta, GA USA at 1 (“To ask the forwarding community to pay the price for operational issues of ports and carriers must stop.”) F.O.X. Intermodal Corp. at 1 (arguing that “terminals directly benefit from their inability to service the truckers in a timely fashion”); The Judge Organization at 1 . 118.E.g., Ports Am. Transparent terminology. The Commission may consider in the reasonableness analysis the extent to which regulated entities have clearly defined the terms used in demurrage and detention practices and regulations, the accessibility of definitions, and the extent to which the definitions differ from how the terms are used in other contexts. Secures its cargo in a container and that it carefully verifies the nature, quantity, safety, or labelling of its cargo.” This argument is unpersuasive.
G. Empty Container Return
The same goes for intermediaries and truckers. Under such circumstances, there is reason for the Commission to carefully scrutinize arguments that shippers, intermediaries, and truckers have the ability meaningfully to negotiate contractual terms relating to demurrage and detention. Unwarranted assumptions about what the rule does. These arguments are belied by the text of the rule. For instance, commenters insist that the practical difficulties of starting demurrage free time based on cargo availability instead of vessel discharge of a container are insurmountable.
If the Customer’s generating equipment produces zero kilowatt-hours during any period of twelve consecutive Billing Periods after the Commercial Operation Date, the Company may terminate this Agreement. For the avoidance of doubt, if an Exchange occurs after the Corporation makes the Early Termination Payments with respect to all Members, the Corporation shall have no obligations under this Agreement with respect to such Exchange, and its only obligations under this Agreement in such case shall be its obligations to all Members under Section 4.03. 398.See Final Report at 17 (“The Phase Two respondents generally agreed that cargo interests seeking a demurrage waiver or free time extension should substantiate their arguments with corroborating documentation and that having guidelines could resolve disputes more efficiently.”).
Immigration & Border Control
Order for Warrant (Changes case management status, see Note 1 below.) Cases with this code display in JIS case history with a warrant status of O . Order Directing Issuance of Bench Warrant (Changes case ayondo review management status, see Note 1 below.) Cases with this code display in JIS case history with a warrant status of O . Each court defines how these codes are used to track specific events or types of cases.
135.E.g., Int’l Fed. of Freight Forwarders Ass’ns at 10 (“FIATA would appreciate guidance on fair and reasonable free periods that are in line with market developments of higher peaks.”) cf. John S. Connor Global Logistics at 3 (“Further to this understanding of availability, there must be a clear and consistent method for calculating bar chart trading Free Time” and “ll parties that provide Free Time should be utilizing the same method of calculation”); New Direx, Inc. (“ree time would not count on days when the terminal or rail yards are not open.”). Interpretation of Shipping Act of 1984—Unjust and unreasonable practices with respect to demurrage and detention.
Overseas Corp. at (describing situation in which ocean carrier was unable to find a trucker on a door move resulting in imposition of demurrage on importer because the carrier “had a provision in their tariff that allowed this to happen” and arguing that “he whole point in making these books a door move was” so that the ocean carrier would make the delivery arrangements”). NTNJFFFBA at 9 (“Where detention is concerned the steamship lines routinely have ignored the , which holds the trucker accountable for the charges incurred when equipment is not returned on time.”); see also PMSA at 13 (“Specifically, equipment charges are generally assessed against motor carriers, not cargo interests, under the provisions of the .”). NYNJFFFBA at 7 (explaining that locking out an intermediary can affect cargo of unrelated shipments handled by that intermediary and “when carriers threaten to cutoff truckers from picking up any containers for any of their customers all shippers are affected when detention is not paid for one of them due to a dispute”).
The substantial supportive comments bolster the Commission’s belief that consistent notice that cargo is actually available for retrieval would provide significant benefits to ocean freight delivery system, especially if that notice is tied to free time. As pointed out by a commenter, notice of availability “would serve the important function of clearly identifying when the cargo is truly available for pick up and thus when the free time clock should start and end.” The Commission remains concerned that legacy forms of notice might not be providing shippers with a reasonable opportunity to retrieve cargo. Those concerns militate in favor of the Commission keeping “notice” as a factor in its guidance. In applying this factor, the most important consideration is the extent to which any notice is calculated to apprise shippers and their agents that a container is available for retrieval. The Commission explained that the type of notice is important—types of notice that are expressly linked to cargo availability weigh favorably in the analysis—and listed examples. The Commission also noted the merits of “push notifications” of cargo availability, notifying users of changes in container availability, linking free time to notice of availability, and appointment guarantees.
The rule applies to practices and regulations relating to demurrage and detention for containerized cargo. For purposes of the rule, demurrage and detention includes any charges, including “per diem,” assessed by ocean common carriers, marine terminal operators, or ocean transportation intermediaries (“regulated entities”) related to the use of marine terminal space (e.g., land) or shipping containers, not including freight charges. Because the Commission’s guidance is not a legislative rule, APA requirements applicable solely to legislative rules are inapplicable here.
Related to Termination for Breach by AGTC
And those who otherwise opposed the Commission’s rule did not object to the principle that the definitions of terms used in demurrage and detention practices should be clear. To better reflect this emphasis on clarity, the Commission is including the term “clearly” in paragraph of the final rule. This paragraph of the rule first considers the existence of demurrage and detention policies, that is, “whether a regulated entity has demurrage and detention policies that reflect its practices.” There was little comment on this aspect of the rule, but what there was supports the Commission’s approach.
Two commenters point out that some of the practices mentioned in the NPRM regarding notice would require “significant additional sharing of information between the terminal and the carriers and clear guidelines as to who bears what responsibility.” Ocean Network Express at 2; WSC at 16. The Commission does not believe this would be a negative consequence of the proposed rule. WCMTOA points out that in the FMC Congestion Report, the Commission’s Bureau of Trade Analysis stated that the “idea here is not to recommend or suggest `best practices’ ” regarding congestion and that it would “be invidious for the Commission to declare `best practices.’ ” WCMTOA at 6 . The Commission generally agrees with the idea that it should not be telling regulated entities what the “best practices” are. But the Commission is authorized and required to determine what practices are unreasonable, and it is thus appropriate for the Commission to provide guidance about what sorts of practices might or might not trend in that direction.
These comments do not justify withdrawing or substantially altering the rule. The Commission proposed general guidance in the form of factors because the operations of industry stakeholders are too varied nationwide, and the risk of inhibiting commercial innovation is too great, for the Commission to prescribe or prohibit specific practices, at least in this rulemaking. Nor is issuing guidance inconsistent with case-by-case adjudication, especially when the Commission expressly states that it will continue to consider all arguments raised in an individual case. Additionally, in light of NAWE’s arguments that the proposed rule is too prescriptive, the Commission is perplexed by NAWE’s assertion that the Commission should instead specify “performance objectives,” a much more intrusive undertaking. That is, rather than its traditional approach to section 41102, NAWE would apparently prefer the Commission set, and assess compliance with, performance metrics. Examples of such metrics commonly used to assess cargo fluidity include container dwell time, truck turn time, and gate moves.
II. NPRM and Summary of Comments
First, there are numerous incentives other than avoiding demurrage that motivate shippers to avoid or minimize government inspections. Not only are there examination costs, but government inspections delay cargo from reaching its intended destination and may result in cargo damage. Second, under the rule, the Commission may consider the extent to which a shipper complies with its customary responsibilities. These responsibilities include things like submitting complete, accurate, and timely paperwork. The second category of policy-related comments relate to the specificity of the rule. On one hand, some commenters argue that the rule is too broadly applicable and prescriptive and ignores the complexity of the transportation system.
Termination for Breach by AGTC Sample Clauses
But, as the Commission noted at the outset, the inability of the Commission to solve every problem does not justify doing nothing. In contrast, ocean carriers, marine terminal operators, chassis lessors, and cooperative working agreements of ocean carriers and marine terminal operators opposed the rule. Also opposing the rule were trade associations such as the World Shipping Council , a trade group trade360 review representing the interests of approximately 90 percent of the global liner vessel capacity, whose members include companies such as China COSCO Shipping Corporation, Mediterranean Shipping Company, and A.P. They argued that the Commission lacks the authority to issue the rule, and that the rule is unnecessary, costly, burdensome, and unfair to ocean carriers and marine terminal operators.
