Australia: A new storm brewing? Ports, shipping and competition law

All ship operators must navigate the relationship with the port authorities at the ports at which they call. Where the port in question is the only realistic port of call, then the port authority has significant leverage in negotiations on port charges, while port users may have little choice in finding suppliers of the various port services, such as stevedoring, warehousing, pilotage and tugs.

A recent trend has also been toward shipping companies themselves investing in ports, meaning that other port users may be dealing with a port authority who is on the one hand a supplier, but on the other a competitor. These companies will want competitive rates, but also have to recognise the investment the port operator (their competitor) may have made in developing port infrastructure.

Both of these scenarios give rise to potential competition law issues. This article briefly explores how these can affect both ship operators and port owners, and the views of the regulatory authorities.

Is there behaviour in breach of competition law?

In disputes between shipping companies and port owners or operators, the relevant competition law provisions will typically be those relating to abuse of a dominant position. This will be the case in most situations where the port user is alleging that prices are too high (excessive pricing), that it is paying higher rates than other port users (discriminatory pricing), or that it is being refused access to the port (refusal to supply).

EU competition law also prohibits illegal arrangements between companies (or "undertakings") which will be relevant where there is a suggestion of anti-competitive contacts between ports or between port service providers. For example, if two stevedoring service providers within a port are alleged to be colluding in their offers to customers, this could be an illegal arrangement between undertakings.

But is the port dominant?

Actions by a port operator or authority will only be capable of amounting to an abuse of dominance if the port itself is in a "dominant position". This is essentially a question of geography - are there other ports in the vicinity which are suitable substitutes and which have available capacity to meet the demands of the vessels in question? In relation to deep sea container vessels, for example, the European Commission has previously found that ports in the Hamburg-Le Havre range constitute a single market in relation to hinterland container traffic, making a dominance finding more difficult.

However, where a port has no obvious substitutes due to its geographic location, or where an operator is tied to using a particular port by virtue of a long-term contract, then it may be easier to establish the dominance of the port operator.

And how to you demonstrate or refute the suggestion of an "abuse"?

Abuse of dominance is a complex legal area and parties considering asserting an abuse need to think carefully about the arena in which they wish to do so - competition authorities have more expertise in dealing with such allegations, and costs may be lower than in litigation, but there is no guarantee the authorities will prioritise investigation of the allegation. National courts and arbitrators on the other hand are in many cases still only developing their expertise in this area and this can often influence the approach of the parties in presenting their arguments, and make outcomes less predictable.

As regards the various types of abuse which can arise in the context of port/port-user relations, price discrimination is a relatively common claim (notably where the port-operator/owner is also active as a downstream port-user, but also where this is not the case), while excessive pricing has been found very hard to establish - largely due to the difficulty for a court or competition authority determining the level at which a price becomes "excessive". The uncertainties and long-term nature of investments in port infrastructure make this calculation particularly complex. Termination of an existing port-user's access rights can also lead to competition law disputes, usually centred on whether the "objective justification" for the termination cited by the port authority was in fact justified.

In all cases, factual and economic evidence are critical to establishing both the dominant position and the existence of abuse, and the incentive for the port to act anti-competitively will need to be considered (meaning cases where the port-owner is also active downstream as a port-user will be far more likely to raise concerns).

What about port services?

An area the European Commission has had a keen focus upon for years, but been frustrated, is in trying to increase the level of competition within ports for the various services required by port-users (such as stevedoring, warehousing, pilotage, tugs, etc). The European Commission has just announced a further consultation in this area with a view to making new proposals by Spring 2013 on how to increase competition, transparency and growth in EU ports.

In the absence of competing ports (or regulation) port services can effectively be charged at monopoly prices, and the European Commission had previously sought to require ports wherever possible to ensure there were at least two providers for each type of service. Although these efforts failed with the abandonment of the Ports Services Directive a few years ago, what is increasingly common is for port users to use the threat of litigation on competition law grounds to challenge the behaviour of port services providers.

Final thoughts

The backdrop to port operator/user relations in Europe remains one of a long-term trend toward far higher volumes of activity and increasingly capacity constraints on aging infrastructure with inevitable delays and difficulties with establishing further infrastructure. In this context, parties on both sides need to be aware of the role of competition law in these relationships.

The European Commission and governments, recognising the limited resource of competition authorities to take forward complaints, are actively advocating increased use of the courts in competition law matters. This is leading to a growth in both the number of cases heard and awards made, but also in the use of competition law arguments in disputes which are settled outside court. As the long history of competition cases in relation to ports shows, a port in an isolated position may be exposed to more than just the weather.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.