Demurrage and Detention Practices and Disputes: Recent Developments in Regulation and Litigation

Charges for D&D are a fact of life in shipping operations, but historically, non-uniform and unclear billing practices created disputes between shippers and carriers. On May 28, 2024, a new, final FMC rule went into effect (46 C.F.R. Part 541) specifying exactly how D&D invoicing must occur with the intent of streamlining the resolution of disputes. Counsel now have a body of decisions from which to draw conclusions about how well the new rule is working in reducing disputes.

A clear invoice, however, does not eliminate D&D disputes over the reasonableness of charges, contractual terms, and other issues. The requirements in 46 USC 41102 and application of the FMC's "incentive principle" remain important issues. In February 2025, the FMC issued its first major decision in TCW Inc. v. Evergreen Shipping Agency (America) Corp., demonstrating how it would apply the incentive principle. The case also offers lessons about the type of evidence needed by maritime terminal operators seeking to enforce their charges as most cases are fact sensitive.

Listen as this panel discusses recent developments in resolving D&D disputes, the impact of the final FMC rule, and the FMC's approach to disputes about the reasonableness of D&D practices.

I. Introduction and overview of D&D

II. Types of D&D disputes

III. Impact of FMC final invoicing rule

IV. Recent developments and trends

The panel will discuss these and other important issues:

• What challenges have been made to the new final rule on D&D billing?
• What are best practices for collecting evidence needed to show that a billing practice is unreasonable?
• What does TCW Inc. v. Evergreen signal about how the FMC applies the incentive principle?