What fees should be paid when parking in the roadstead without loadingApril 27, 2021 · Publications
And why the attempts of the USPA to collect ship, administrative and sanitary dues from business in this case are devoid of legal grounds.
Observing what is happening in the ports, we involuntarily ask ourselves the question: is it not time to issue a business manual entitled "How not to overpay?" For the interaction with the Administration of the Seaports of Ukraine (USPA) often turns into additional troubles and costs for carriers. The reform of the industry, which at some point turned off the right path, squeezed the USPA in a vice between the state, which requires more profits and more tax revenues, and cargo owners, who choose more attractive routes for the delivery of their goods.
We believe that many market participants remember the protracted dispute between maritime agents and USPA regarding the refund of fees. For those who have forgotten this story a little, here is a summary of the previous series. Our clients' vessels anchored awaiting loading in Odessa and Nikolaev. However, for a number of reasons, the cargo operations were not carried out, respectively, the ships went to other ports for loading.
The current settlement procedure stipulates that shipowners pay all port dues in advance. After the ship leaves the harbor, the USPA must issue a final invoice based on the services provided in the port. Our clients have paid the preliminary invoice in full. Since no cargo operations were carried out, the ships were all the time exclusively in the roadstead, the USPA had to exempt ships from paying ship, administrative and sanitary dues in accordance with clauses 2.2, 7.2, 8.2 of the Procedure for levying port dues. Unfortunately, the USPA refused to do this.
In the contracts between the sea agent and the USPA, clear obligations were also spelled out: if the amount of fees that were transferred to the state-owned enterprise for prepayment exceeds the costs of the vessel in the port, the state-owned enterprise must return the difference to the client.
But it was not there. The administration flatly refused to transfer the specified fees to the clients, justifying this by the fact that the initial purpose of the ship call was cargo operations, and what happened in fact does not matter anymore. Although both the order of the relevant ministry and the contract with the client itself indicate the opposite.
Moreover, let us imagine a mirror situation: a client turns to the USPA and declares the initial goal of setting up in the roadstead in order to enter another port. Then he goes to the pier, is loaded with goods and does not pay ship, administrative and sanitary dues. What about? After all, the original goal is clearly spelled out, and the changes no longer matter. Have you presented? And how do you think the USPA would have acted in this case? Would you close your eyes to factual circumstances? Unlikely.
And here the state-owned enterprise decided to compete for the client's money and for the indicators of its profit and tax deductions. Moreover, the argument about the purpose of the call was not the only one. The USPA also appealed to the fact that the interests of the maritime agent in this case are not affected in any way, since we are talking about the money of the ship owner.
What Themis says
The court approached the case more thoroughly and looked at how the arguments of the parties to the dispute were supported. In particular, the arguments about the improper plaintiff were rejected both in the first instance and in the appellate instance. The judges drew attention to the fact that the signed agreement is bilateral. Moreover, the USPA concluded it not with the shipowners, but directly with the sea agent. And it is he who is responsible for the payment of port dues on behalf of the ship owner, as well as responsibility for violation of the terms of payment.
Based on the results of studying the payment orders, the courts came to the conclusion that it was the sea agent under the contract that acted as the payer. That is why the arguments of the USPA that the situation with the return of the difference does not concern the agent in any way were recognized as untenable.
In addition, the courts drew attention to the clauses of the agreement in which the USPA undertook to return the difference to the counterparty if its actual costs were lower than the advance paid earlier. And the overpayment for the rest of the dues (berth, canal) was credited against future payments to the sea agent, and not to the shipowners, whose interests he represented.
The court also did not disregard the interpretation of paragraphs 2.2, 7.2 and 8.2 of the order of the Ministry of Infrastructure No. 316. All authorities recognized that anchoring in the absence of cargo operations and moving the vessel to the next port are grounds for exemption from administrative, ship and sanitary dues. That is why the financial claims of the marine agent have a legal basis.
Despite the active resistance of the USPA, the Supreme Court took the side of the maritime agent and recognized his claims as fair. In particular, the higher authority put a heavy point on how to be guided by the norms of Order No. 316. According to the decision, in the absence of cargo operations, the vessel is exempt from paying administrative, ship and sanitary dues. And this is already a precedent that the lower courts will rely on when considering such cases.
Moreover, the Supreme Court once again recognized the status of a maritime agent as an independent entity when filing a claim and did not require the involvement of its clients, that is, shipowners, in the process.
In conclusion, we repeat that the norms of legislation, which can be interpreted ambiguously, sooner or later begin to be considered in the judicial plane. And the already formed practice will serve as a guideline for judges who make decisions on such cases. However, we hope that the ruling of the Supreme Court will make it possible to prevent such battles, in which the Legrant team had to do a lot of work at all levels, and the rules of the game in the maritime industry will gradually be brought to world standards.