Port Surcharges under scrutiny

The National Customs Brokers & Forwarders Association of America issued the following statement late yesterday regarding port surcharges: 

The NCBFAA has now spoken with the Federal Maritime Commission concerning the various so-called "congestion surcharges" that have been announced by many of the vessel operators pertaining to cargo destined to the West Coast. In our view, there are a number of arguments that can be made that raise serious question as to their legality. Nonetheless, they have been announced and many are scheduled to take effect within the next few days. 
 
Parenthetically, we have been advised by FMC staff that K Line will not be seeking to implement any such surcharge at this time. And, we have heard that another Japanese carrier may also be wavering. We do not have a complete list of all of the carriers' positions at this point, but understand that at least the following have made announcements of their intention to implement these surcharges, with most becoming effective on 11/26 and 27:
 
· MSC, NYK, Zim, Hanjin, OOCL, CMA CGM, Maersk, Hyundai, MOL, APL, Evergeen, COSCO, UASC, China Shipping 
 
As previously advised, the FMC will need to decide whether these announced surcharges are lawful and both the Commission and its staff are reviewing the announcements, the purported justification and the timing of these publications to determine what action, if any, the Commission should take. Unfortunately, although many of the current versions of these surcharges are announced to be effective on cargo received by the carriers as early as tomorrow, November 26, and although it is already November 26 in Asia, the FMC will not be in a position to make any decision as to the legality of these surcharges until early next week. 
 
Under the circumstances, it would accordingly be prudent to assume – at least for the time being – that the carriers will attempt to collect these surcharges when the cargo arrives at West Coast ports. When the FMC does determine what position it will take, we will provide further advice. In the meantime, if you have any questions concerning this subject or how to protect the company's commercial interests, you should consider contacting counsel.
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