by Dave Akers, IHSA —

“Possession is nine-tenths of the law, and the other one-tenth is me forgetting I ever had it.” — Unknown   

The Federal Maritime Commission (FMC) has implemented rigorous new Demurrage and Detention (D&D) billing requirements under 46 CFR Part 541, aiming to protect shippers from unjustified fees and ensure charges strictly incentivize freight fluidity. Stemming from the Ocean Shipping Reform Act of 2022, these rules establish strict administrative timelines, mandatory invoice requirements, and clear grounds for dispute of charges, legally voiding carrier invoices that fail to comply with the new administrative standards.

Key Regulatory Timelines (The 30/30/30 Rule)

• Issuance: Ocean carriers and Marine Terminal Operators (MTOs) must issue D&D invoices within 30 calendar days of the last incurred charge. (NVOCCs have 30 days from receiving an invoice to pass it on).
• Dispute Window: Billed parties have at least 30 calendar days from the invoice date to request a mitigation, waiver, or refund.
• Resolution: Billing parties must attempt to resolve disputes within 30 calendar days of receiving the request.

Mandatory Invoice Requirements

Invoices must contain specific identifying information (BOL/container numbers), exact timing data (free time, charge application dates), rate details, dispute instructions (with direct digital access like a URL/QR code), and two explicit compliance certifications. Failure to include any mandated data element legally relieves the billed party of the obligation to pay the charge.

The Incentive Principle & Valid Dispute Grounds

The FMC dictates that D&D fees are only “just and reasonable” if they act as a financial incentive to promote cargo movement. Fees applied when a shipper has no control over the delay violate this principle. Valid dispute categories include:

• Cargo Unavailability (Demurrage): Terminal closures, lack of appointment slots, physical container obstructions, or failure to provide cargo availability notices.
• Inability to Return Empties (Detention): Terminal refusals (“stop-stops”), zero return slots, uncommunicated location changes, or restrictive dual-move mandates.
• Government Holds: Delays resulting from customs or agency inspections (CBP, FDA) are generally treated as cargo unavailability, as shippers cannot control these events.
• Administrative Non-Compliance: Invoices missing required data or issued beyond the 30-day limit.

Action Plan for Management

To successfully mitigate unjust charges, teams cannot simply argue that a fee is unfair. They must proactively review Bill of Lading (BOL) terms, collect robust, timestamped evidence (exam notices, full appointment screenshots, closure notices), and submit formal, evidence-backed disputes within the strict 30-day window.

While knowing the rules is the foundation, successfully reclaiming or preventing unwarranted demurrage and detention charges ultimately hinges on rapid, documented execution. Next week’s IHSA bulletin* will break down the exact evidentiary toolkit and workflow your team needs to challenge non-compliant invoices with confidence.

*IHSA sends out weekly blogs to members and interested parties. To subscribe to IHSA bulletins and have these insights delivered directly to your team, please contact team@shippersassociation.org.