Policy & Compliance
BIFAlink
www.bifa.org
Abandoned cargo
Ensuring compliance with new EU road freight transport rules
Continued from page 15
something like: “Well I have been paid in advance for the shipment so did not expect problems.” At least for identified high risk commodities, and preferably all FCL shipments, BIFA recommends that Members track those shipments and ensure that they have been cleared and collected from the quay. If this does not occur, early intervention to minimise costs should be undertaken, including contacting the shipper and putting it on notice that it is liable for all costs associated with abandoned cargoes. When dealing with such a scenario, it should be remembered that the shipper may not have funds sufficient to cover the costs of returning the goods to origin, particularly if those exceed the value of the goods. Another point to consider is contacting your insurer, whose claims professionals can assist in preventing excessive costs being incurred. We would also suggest speaking to the relevant carrier as often it will be willing to reach a ‘commercial’ arrangement to minimise the costs. Additional risks So far we have examined the commercial risks impacting freight forwarders. However, the TT Club has highlighted a much more serious issue. In August 2021, stored ammonium nitrate fertiliser exploded at Beirut port in Lebanon, killing more than 200 people, injuring 6,500 and devastating parts of the city. The dangerous stockpile had been neglected at the Beirut port for years. In the aftermath of the deadly blast, port authorities revealed that another 50 abandoned containers filled with hazardous chemicals had been discovered in an open-air storage yard. They had been languishing (and deteriorating) at the port for more than a decade – these consignments were all abandoned cargoes. This should serve as a wake-up call to all in the supply chain to ensure that consignments are correctly and promptly handled until final delivery. In all probability, the issue of abandoned cargo will never be resolved but it needs to be better managed. The main problem for our Members usually commences when they receive a communication from a shipping line regarding the abandoned cargo, a request for disposal instructions and an advice holding the origin freight forwarder liable for a large sum covering quay rent and demurrage.
Some advice on how to navigate the EU’s new and inconsistently applied road freight regulations
BIFA has received several enquiries from Members about new road freight regulations that are being implemented across the EU. Although the UK is no longer an EU member, when operating within EU borders or contracting EU entities to undertake work for them, UK companies have to comply with the relevant regulations. This is certainly true of the Mobility Package which was adopted in July 2020 and has introduced important changes to the road transport, social and market access legislation. The main changes concerned: • Driving and resting times, • Access to the market and cabotage operations, • EU legal framework for posting of workers. The rate of implementation of the new regulations varies between member states and, as individual countries have to establish criteria under national law to certify compliance, we are likely to see legislative variations and different penalties for non-compliance. Legal responsibility The legal responsibility to comply with these new rules remains, as previously, mainly with the road haulier. However, there are significant legal provisions included in the legislation to hold the transport buyer responsible when it “knew or ought to have known” that the legal framework would be, or was, violated by the road haulier. From the UK perspective, enforcement is further complicated by withdrawal from the EU, especially with regards to taking legal action against the transport buyer for non-compliance. Article 5 (1) of the Lex Specialis introduces the concept of joint liability of transport buyers in the case of infringement to the posting rules by the road haulier: “Member states shall lay down rules on sanctions against consignors, freight forwarders, contractors and sub- contractors for non-compliance with national provisions adopted pursuant to Article 1, where they knew, or, in the light of all relevant circumstances, ought to have known, that the transport services that they commissioned involved infringements of those provisions.” The regulations place a legal obligation on
the freight forwarder as transport buyer to verify that the drivers are paid at the minimum levels where the transport activity is performed. There is, in addition, an obligation to ensure that the registration of drivers is performed by the road haulier. Based upon information received from CLECAT, which represents freight forwarder interests in the EU, BIFA recommends that Members engaged in EU road freight movements limit their liabilities by following this guidance: • Regular (annual) signing of a letter of legal requirement by the road haulier. • Check the national rules on sanctions for freight forwarders in case of infringements of posting rules (available on member states’ posting websites). • Check the minimum wages applicable to drivers in each EU member state where a commissioned driver is posted. • Request the road haulier to send examples of payslips of the posted driver. • Request the road haulier to prove the submission of the posting declarations on the public interface. As we have highlighted, implementation of the new regulations is inconsistent throughout the EU, and in some instances there are no mechanisms to monitor or ensure compliance. Some observers believe that effective enforcement of these regulations will not be possible until the new Smart tachograph version 2 is introduced. In the EU, it will be mandatory to fit these for newly registered vehicles as of 21 August 2023 and for all vehicles involved in international transport as of 21 August 2025.
The author acknowledges information provided by the TT Club and used in preparing this article.
May 2022
17
Made with FlippingBook Annual report maker