As reported in our E-Alert sent out on 7 May 2010 in recent a
Consumer, Trader and Tenancy Tribunal of New South Wales
("Tribunal") decision the Tribunal held
that container detention fee charges by an Australian agent of an
international shipping company was an unenforceable penalty. The
container detention fee would only have been enforceable if it was
a genuine pre-estimate of the damages expected to be suffered from
the late return or non-return of a shipping container.
The decision confirms what many in the industry have previously
thought, that the rate of container detention fees has no
relationship to the potential, or actual, loss suffered by the
This is an issue that affects thousands of importers and their
service providers in the supply chain and many have often felt
powerless in the face of a demand for container detention fees from
a shipping company or their agent. Unsurprisingly, following on
from our recent E-Alert and the subsequent media coverage regarding
the Tribunal's decision we have received a number of inquiries
into the possibility of either individual or group legal
proceedings being commenced against the shipping company or their
Media reports have suggested that many Shipping Australia
members are now facing hearings in the Tribunal on the same
If you or your clients have paid container detention fees or are
currently subject to demands for the payment of container detention
fees, it now may be possible to commence legal proceedings for the
recovery of the amounts paid or to resist the demands made. In many
cases, where the container detention fees are low, it may not be
economical for individual importers to commence legal proceedings.
However, if there is a sufficient number of importers or others
affected, who have sufficiently similar circumstances, a class
action may be a viable option. In the alternative, if affected
parties wish to pursue their own individual interests then taking
separate action maybe an appropriate way to pursue those
As always, we would be pleased to discuss the decision of the
Tribunal and the effect it may have on your individual
circumstances. This may include proceedings of the type we have
discussed in this E-Alert.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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