Burden of proof, lump-sum claims and objections under tort law regarding the return of empty containers
If a container is returned late, shipping companies demand detention fees that can quickly reach substantial amounts. These charges are often flat-rate, poorly substantiated, or based on delays beyond your control. Rogert & Ulbrich reviews the evidence and the clause itself and defends against excessive detention demands.
Detention in the narrower sense – what the shipping company is charging for here
Demurrage and detention are often confused, but they refer to different phases. Detention, strictly speaking, begins after the container has left the terminal. It covers the extended use of the shipping company's equipment until the empty container is returned to its designated depot.
Two points in time are crucial for the calculation: the end of the release period and the actual return time. These points are often unclear in disputes, and this is precisely where the defense lies. Unlike demurrage, which concerns the storage space in the port, detention concerns the availability of the container itself.
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Received a detention invoice? First, clarify when the release period ended and when the container was actually returned.
The legal basis: Conditions of carriage as general terms and conditions.
Detention claims are not based on law, but on the shipping company's terms and conditions of carriage. These are general terms and conditions and, insofar as German law is applicable, are subject to judicial review of their content. Therefore, even in commercial transactions, they are not effective in every respect.
Before disputing the amount, it is therefore essential to clarify whether the terms were effectively incorporated and which law applies. We discuss the classification as payment or liquidated damages and the review of standard terms and conditions in detail in our article on when shipping companies' demurrage clauses are invalid. The principles outlined there apply accordingly to detention.
Unsure whether the shipping company's terms and conditions even apply? Have the terms and conditions and applicable law reviewed.
Burden of proof: Who has to prove what?
An often overlooked factor is the burden of proof. Whoever asserts a claim must demonstrate and prove its prerequisites. For the shipping company, this means that it must prove the start of the detention, the expiry of the release period, and, above all, the actual return date.
The exact date of return is often disputed. The decisive factor is proof of return to the depot, such as an interchange receipt, a depot receipt, or the corresponding gate documentation. If the shipping company's information differs from your own documentation, the claim is contestable, either in principle or in amount. Properly documenting your return eliminates the basis for excessive claims.
Does the shipping company dispute your return date? Secure the interchange receipt and the deposit slip and have the evidence reviewed.
Lump sum claims and the control of terms and conditions
Detention is typically billed as a tiered daily rate per container. If these rates are classified as liquidated damages, they are fully subject to review. The crucial question then becomes whether the lump sum exceeds the damage that could normally be expected and whether proof of lesser damage is admissible.
- Amount of the lump sum: If the daily rate significantly exceeds the typical damage, this indicates an unreasonable disadvantage according to § 307 BGB.
- Exclusion of counter-evidence: If the clause excludes proof of lesser damage, this is a strong indication of its invalidity; Section 309 No. 5 of the German Civil Code (BGB) also has indicative effect in B2B transactions.
- Transparency of the grading system: If the logic behind the increase is not comprehensible, the clause may fail due to the transparency requirement of Section 307 Paragraph 1 Sentence 2 of the German Civil Code (BGB).
If the clause is invalidated due to an excessive flat fee, it cannot be reduced to a just-acceptable level, but may be rendered completely invalid. In that case, the shipping company is only entitled to compensation for actual, demonstrable damages, which it often cannot quantify. This significantly alters its negotiating position.
Do the daily rates seem excessive to you? Have the flat rate reviewed to ensure it meets the requirements of a content control assessment.
Objections under tort law
In addition to the review of the terms and conditions, you have the option of raising objections under tort law, which can be combined with the clause review:
- Proof of lesser damage: You can demonstrate that the shipping company actually suffered no damage or less damage, for example because the container was not needed for any other purpose anyway.
- Cause outside your sphere of influence: If the container could not be returned due to a depot acceptance freeze, a lack of return dates, or a strike, there is no attributable fault.
- Duty to mitigate damages: The shipping company must take reasonable measures to limit its damages; if it fails to do so, its claim is reduced.
- Contributory causation: If the shipping company or the depot contributed to the delay, this must be taken into account when determining the amount of compensation.
The depository acceptance freeze is particularly relevant in practice: If the return is refused at the designated depository or if there are no available appointments, you cannot usually be held responsible for the resulting delay. Here, too, complete documentation is crucial, including records of rejected return attempts and communication with the depository.
Was your return to the depot rejected? Document every attempt and have your objections reviewed.
Guidelines for defending against detention claims
A structured approach can often significantly reduce or completely prevent detention claims. The following steps will help:
- Clarify timings: Determine the end of the exemption period and the actual return time based on your receipts.
- Proof of return: Secure the interchange receipt, depot receipt, and gate documentation as proof of the return date.
- Check clause: Have the inclusion, applicable law, and effectiveness of the lump sum assessed.
- Question the damage: Demand proof of the actual damage and investigate whether the damage is less.
- Document the cause: Document acceptance freezes, missed appointments, or strikes with dates and evidence.
- Object within the deadline: Raise your objections in writing and in good time to avoid the statute of limitations and preclusion.
In many cases, a significant reduction in costs can be achieved out of court because the shipping company cannot prove the actual damage or the late return date. If an agreement cannot be reached, legal action follows. The sooner the evidence is secured, the stronger your position will be.
Is a detention claim pending? Have the evidence and the clause reviewed before you pay.
Rogert & Ulbrich – Your lawyers in transport and forwarding law
Rogert & Ulbrich advises consignees, importers, and freight forwarders on defending against detention claims from shipping companies. The lawyers Dr. Marco Rogert and Tobias Ulbrich and their multilingual team are familiar with the terms and conditions of carriage of the major shipping companies and the relevant general terms and conditions control from daily practice.
We examine the evidence at the time of return, assess the validity of the flat fee, raise objections based on damages law, and enforce your position. Through our Dutch Desk We also take into account the Dutch legal situation for traffic via Rotterdam and Antwerp; for North German ports, we are also known as Lawyer for transport law in Hamburg responsive.
Whether it's excessive daily rates, a disputed return date, or a halt to deposit acceptance: Arrange a initial consultation and secure your position.
