Risk allocation between shipper, freight forwarder and shipping company in the event of customs-related delays in container traffic
If a container is held by customs for inspection or seized, the shipping company's demurrage often continues unabated – even though the recipient is not authorized to collect the container. Who ultimately bears these costs depends on the cause of the delay and the contractual allocation of risk. Rogert & Ulbrich clarifies the attribution of costs and defends against excessive claims.
The scenario: The container is stuck in customs – and the demurrage continues.
In practice, the process is always similar: The shipment arrives at the port, the container is to be collected, but customs intervenes and orders an inspection or impounds the container entirely. During this time, the recipient cannot access the goods. However, the shipping company continues to charge demurrage because its container is blocking space in the port.
The result is a claim that quickly reaches four or five figures, even though the recipient seemingly had no control over the delay. This is precisely where the dispute arises: The shipping company demands payment, the recipient feels unfairly burdened, and the freight forwarder is caught in the middle. You can read about how this cluster of issues is interconnected in our guide to demurrage and detention in container transport.
Container held up in customs and demurrage charges are accruing? Document completely and without gaps from the very beginning when and why access was prevented.
Inspection or seizure? Why the distinction determines the costs.
Not every customs-related delay should be assessed in the same way. The decisive factors are the reason why the container is being held and whether the measure originates within the recipient's sphere of responsibility.
- Routine inspection: A random check without specific cause affects the recipient through no fault of their own. The delay here lies outside their sphere of influence.
- Occasion-related inspection: If the container is inspected due to discrepancies in the customs declaration or accompanying documents, the cause may be attributed to the party responsible for the documents.
- Seizure and confiscation: If the goods are seized due to suspicion of prohibited goods, infringement of intellectual property rights or false declarations, the question of risk shifts again – here it is about the legality of the measure and the responsibility for its cause.
The distinction is not a legal technicality, but the key to cost allocation. Those who are not at fault for the delay generally have stronger arguments against being charged. Conversely, those who caused the delay through incorrect information often bear the costs themselves.
Unsure why customs is holding your container? First, find out the reason – that will determine who ultimately bears the demurrage.
Who caused the delay? The central question of attribution.
At its core, the dispute always revolves around one question: Whose responsibility lies in the reason for the detention? This attribution determines whether the recipient must bear the demurrage, pass it on to another party, or can reject it entirely.
If the assessment is based on an incomplete or incorrect customs declaration, the fault lies with the party responsible for the declaration. This is often the freight forwarder in their capacity as customs representative, depending on whether they acted as a direct or indirect representative. If, however, the assessment is based on a purely routine check, there is no attributable fault on the part of the recipient – an important argument against the assessment.
In contrast, the shipping company itself usually relies solely on its terms and conditions of carriage and charges demurrage regardless of the cause. Whether this clause can actually pass the costs on to the recipient irrespective of fault is a question of general terms and conditions review. More on this in our article on when demurrage clauses used by shipping companies are invalid.
Received a demand for payment despite a customs inspection through no fault of your own? Have it checked to determine who is legally responsible for the delay.
The triangular relationship between shipper, freight forwarder and shipping company
Demurrage through customs enforcement rarely affects only one party. Typically, three parties are involved, whose obligations arise from different contracts.
- Shipping company: The company invoices demurrage charges based on its terms and conditions of carriage, usually to the recipient or the booking freight forwarder.
- Freight forwarder: Responsible for the proper execution of the forwarding contract and frequently acts as a customs representative. His duties and liability are governed by Sections 453 et seq. of the German Commercial Code (HGB) and regularly by the agreed-upon General German Forwarding Agents' Terms and Conditions.
- Shipper and consignee: They are responsible for the accuracy of the information and documents provided and are involved in the risk allocation through the delivery terms, such as the agreed Incoterms.
Who bears which costs is determined by the interplay of these contracts. If the freight forwarder has made an error in the registration, liability and recourse claims may arise. If the shipper has provided incorrect information, the situation can reverse. A clear separation of responsibilities is therefore the foundation of any successful defense.
Were you charged demurrage by the freight forwarder? Have it checked whether the breach of duty was actually within your sphere of responsibility.
Here's how to react if your container is held up in customs.
When dealing with customs assessments, swift and structured action is crucial. The following steps will secure your position:
- Clarify the reason for the detention: Ask customs and the freight forwarder whether it is a routine inspection, a special inspection, or a seizure.
- Document the cause and timeline: Document with data, emails and official evidence when and why access was blocked.
- Registration and document check: Clarify whether the delay is due to incorrect information and who is responsible for it.
- Review the demurrage clause and the contract: Have the shipping company clause and the risk allocation in the freight and forwarding contract assessed.
- Objections must be raised within the prescribed time limit: Object to the claim in a qualified manner and observe the short deadlines under transport law.
Often, a reduction can be achieved out of court because the shipping company cannot enforce the strict liability charge or the delay is attributable to a third party. If no agreement is reached, legal action or recourse claims follow. The earlier the strategy is in place, the stronger your position.
The longer you wait, the more expensive the demurrage will become. Have your objections reviewed while the claim is still outstanding.
Rogert & Ulbrich – Your lawyers in transport and forwarding law
Rogert & Ulbrich advises importers, freight forwarders, and logistics companies when containers are held up in customs and demurrage proceedings are underway. Lawyers Dr. Marco Rogert and Tobias Ulbrich and their multilingual team have extensive practical experience at the intersection of customs, transport, and freight forwarding law.
We clarify who is responsible for the delay, examine the validity of the shipping company clause and the risk allocation in your contracts, and enforce your objections or claims for damages – both out of court and in court. Through our Dutch Desk, we also consider Dutch law for traffic via Rotterdam and Antwerp.
Whether it's a stuck container, passed-on demurrage charges, or a disputed protective clause: Get in touch and secure your claims.
