Illustrative photograph; not a location, property or incident discussed in this article. Photo: David Underland / Pexels (Pexels License).
A detention or demurrage dispute often reaches the legal department as a spreadsheet. The arithmetic may be correct while the underlying entitlement remains uncertain. Which tariff applied? Was additional free time agreed? Could the customer collect the container? Who caused the interval between customs clearance and actual release?
For a shipping network serving Dutch Caribbean ports, an effective claims process must answer those questions shipment by shipment. A regional tariff table alone cannot explain a local release failure or a special commercial concession.
Three Rotterdam decisions offer useful comparisons on contractual tariffs, delay attribution and the limits of continuing charges. They concern particular contracts and Dutch-law analyses, not uniform rules for Curaçao, Aruba or Sint Maarten. Before applying their reasoning, establish the governing law, forum, applicable local requirements and the legal basis of the specific charge.
Prove the tariff and reconstruct the delay
In Cosco v Arnesco, decided on 22 June 2022, a consignee disputed charges associated with seven containers. The court held that the consignee, which had presented the bills of lading and joined the carriage contracts, was bound by the applicable tariff. The conditions referred to the tariff, and the arrival notices directed the consignee to the relevant website before arrival.
That did not make every charged day recoverable. Confusion involving the carrier's external terminal transport provider delayed customs inspections and pushed them into the Christmas period. In addition to reductions already made by the claimant, the court deducted further days for five containers. A separate criticism concerning replacement collection codes was insufficiently substantiated. Rechtbank Rotterdam, ECLI:NL:RBROT:2022:10682.
The decision illustrates two separate proofs. First, identify the agreement that makes the rate and free period applicable to the party being billed. Second, explain the events generating the charged period. Success on one question does not automatically establish the other.
For each disputed container, preserve the booking confirmation, bill terms, arrival notice, tariff version and any negotiated exception. A live webpage showing today's tariff is a poor substitute for the rate applicable to the shipment. Record when the customer received the relevant reference or documents without assuming that sending a link invariably establishes incorporation under every governing law.
The timeline should distinguish discharge, availability, customs selection, inspection instructions, physical movements, release clearance, collection-code issue, collection and empty return. Assign an evidential source to each date. If an event is uncertain, mark it uncertain rather than quietly filling the gap with a billing assumption.
Separate commercial concessions from permanent waivers
In Gabriga v Nile Dutch, the parties disputed whether their dealings had produced a broader arrangement dispensing with demurrage. On 23 February 2022, the court rejected the alleged general exemption, but found that the customer could rely on agreed additional free time and a deposit exemption. The invoices therefore needed correction.
The court also declined to let charges for two containers run indefinitely after customs confiscation made their return impossible. Applying Dutch law's penalty-reduction provision, it limited those charges to the confiscation dates. It did not eliminate all earlier demurrage or cap every claim at the container's replacement value. Rechtbank Rotterdam, ECLI:NL:RBROT:2022:1384.
This is a reason to distinguish four decisions that operations teams may compress into the word “waiver”: extra free days, a reduced daily rate, release without a deposit and forgiveness of an accrued debt. An agreement about one does not necessarily establish the others.
A useful concession record identifies the approving entity and employee, the shipments covered, the calculation affected and whether the concession is one-off or continuing. The destination agent needs the same instruction as the commercial team that negotiated it. Otherwise, the billing record may contradict the arrangement actually made.
The confiscation issue deserves a separate review. When return becomes impossible, or a proposed disposal changes the commercial purpose of continuing charges, legal and equipment-control teams should reassess the claim together. The contractual characterization of the payment, governing law, actual equipment loss and available recovery options all matter. The Rotterdam outcome supplies a warning against indefinite automated accrual, not a ready-made stopping rule for every port.
Release arrangements need not settle ultimate liability
A third Rotterdam decision, dated 23 September 2022, concerned a paid-for shipment whose original bill remained with a freight forwarder. The court ordered conditional release against an indemnity and bank security. It also required payment of accrued demurrage and detention, relying on an unchallenged contractual lien argument and the relevant tariff reference.
Crucially, the court left ultimate responsibility for those charges open for determination in substantive proceedings. The immediate release solution and the final allocation of cost were separate questions. This was interim relief, not a final determination that every disputed charge was substantively justified. Rechtbank Rotterdam, ECLI:NL:RBROT:2022:7967.
For counsel managing an urgent island release, that distinction can support a practical negotiation. Parties may wish to agree payment under a clearly recorded reservation, security or another permitted release arrangement while preserving their dispute about responsibility. Whether those options are legally available depends on the relevant contract, parties and local law. They should not be presented as an entitlement to bypass a valid hold.
The written arrangement should address the precise sum, subsequent accrual, release conditions, any preserved claim, and what will count as settlement. Avoid leaving one team believing it has compromised the entire dispute while the other believes it has only secured collection.
Give the legal team an exception report, not just an invoice
For recurring Dutch Caribbean operations, the most useful management report identifies containers whose facts have departed from normal billing assumptions. Examples include a rejected empty-return attempt, conflicting depot instructions, a release document awaiting verification, an authority's seizure, and a disputed special free-time arrangement.
For each exception, record what happened, the responsible operational contact, the evidence available and the next action that could reduce further cost. Keep port storage, equipment-use charges and inspection expenses separately identifiable. Similar descriptions on invoices do not establish that they arise under the same contract or are payable to the same entity.
Where the parties cannot agree, the resulting file should allow local counsel to evaluate a specific period and contractual right without reconstructing the entire shipment from scattered emails. The objective is not to assume that all delay excuses payment, or that a published tariff makes every day payable. It is to make the amount claimed, the amount disputed and the commercial route to resolution intelligible.
General information. Local law and the shipment's contractual terms require separate review.
For related services, see ZL Attorneys’ maritime law and Curaçao pages. The applicable island law and local representation requirements must be assessed for each matter.
