(Published in Part – III Section 4 of the Gazette of India, Extraordinary)
| No. 62 | New Delhi, the 28 March, 2002 |
Tariff
Authority for Major Ports
Notification
In
exercise of the powers conferred by Section 50 of the Major Port Trusts Act,
1963 (38 of 1963), the Tariff Authority for Major Ports hereby rejects
the representation of the Mumbai and Nhava-Sheva Ship Agents’
Association for cancellation of lighterage dues levied by the Mumbai Port Trust
as in the Order appended hereto.
(S.
Sathyam)
Chairman
The
Mumbai and Nhava-Sheva Ship Agents’
Association -
- -
Applicant
Vs
The
Mumbai Port Trust (MBPT)
- - -
Respondent
O R D E R
(Passed
on this 21st day of March 2002)
The Mumbai and Nhava-Sheva Ship Agents’ Association (MANSA) has
submitted a representation about Lighterage dues on foreign and coastal vessels
levied by the Mumbai Port Trust (MBPT).
1.2.
In its representation, the MANSA has made the following points:
(i).
The MBPT is charging lighterage dues at the rate of US Cents 8 per GRT
per day and Rs.2.50 per GRT per day or part thereof on
foreign-going and coastal vessels respectively.
(ii).
Lighterage operations are carried out by the cargo interest by arranging
/ paying for the barges. The
Port does not provide any service to ship owners to justify the charge for a
lighterage fee.
(iii).
There are no separate lighterage points and ships are anchored at the
same positions where they usually anchor while awaiting berth.
Normal anchorage charges are US Cent 1 per GRT per day after a
3 days free period.
(iv).
Lighterage dues are charged on a per calendar day basis and not on 24-
hour basis. In case of non-availability of barges, the lighterage
operations often take place between late evening on one day to early morning the
next day.
(v).
There is no official documentation or supervision by the port for the
period vessels carry out lighterage operations. It is, therefore,
practically not possible for the Port to authenticate whether the charges paid
are in accordance with its scale of rates. This can give rise to
malpractice / arbitrariness of the port officials, which is not desirable.
(vi).
The requirement for lighterage and transhipment is entirely that of the
shipper / consignee (cargo interest) and vessel owners are required to pay this
charge. Almost all these cargoes are being discharged on ‘free
out’ basis and all cargo operations are organised and carried out by
the shippers / receivers.
(vii).
The lighterage charges may be cancelled In view of the reasons stated.
Lines are willing to pay the port the normal anchorage dues for the entire stay
of the vessel.
2.
The representation of the MANSA was circulated to the MBPT and also to
the concerned port users for comments. The comments received from them are summarised below:
Mumbai Port Trust (MBPT)
(i).
It is true that the MBPT is charging lighterage dues on foreign and
coastal vessel respectively @ 8 US Cents per GRT per day and Rs. 2.50
per GRT per day or part thereof from the vessels discharging and receiving cargo
in midstream at anchorages.
(ii).
Lighterage dues are recovered only from the vessels which carry out the
discharge operation in stream and the cargo is taken to other minor ports.
In the cases of vessels which discharge cargo into barges / boats for subsequent
discharge at the MBPT docks, the lighterage dues are not levied.
(iii).
The TAMP approved the Scale of Rates inclusive of levy of lighterage
operation in midstream by its Order dated 27 October 1998 and made it effective
from 30 December 1998.
(iv).
The contention of MANSA that the port does not provide any services to
the ship owners to justify the charges for lighterage fee is not true.
Lighterage operation involves the utilisation of a services in relation to
monitoring and control of the movement of the vessels to ensure the safe and
unhindered passage of vessels through the water of the MBPT. The MBPT
provides facilities like harbour patrolling navigational aids such as
lighthouses, signal stations, buoys beacons, boundary
pillars and light vessels, etc.
All the vessels traversing in the port limits as well as port approaches
necessarily utilise the services rendered by Vessel Traffic Management Systems (VTMS)
installed at an expenditure of Rs.30 crores.
(v).
It is true that Anchorage Charges at 1 US Dollar per GRT per day after 3
days free period is levied for vessels at anchorages for awaiting berth or
reasons other than cargo operations. The Scale of Rates provides that for
the period of working cargo in lighterage operation no anchorage charges are
recovered from the vessels and lighterage dues be collected. Anchorage
charges are recovered for the period when the vessel is not discharging /
receiving the cargo in stream. Anchorage charges are recovered only after
expiry of free period.
(vi).
The lighterage dues are charged on a per calendar day basis and not on
hourly basis. Since lighterage dues and anchorage fee are recoverable
proportionally the provision of ‘calendar day’ is defined
common under both the schedules.
(vii).
No provision for special supervision by the MBPT officials for lighterage
operation has been made till now. Since
its introduction no arbitration / dispute has been received by the MBPT towards
the levy of lighterage dues. If supervision by the MBPT officials is to be implemented
additional posts of staff members and officers have to be created with separate
transport arrangements for shore to ship and ship to ship transportation of
staff during the period of lighterage operation in the stream. This will
necessarily add to the cost of services.
(viii).
Since 1994, the lighterage dues are recovered from the various
port users for carrying out lighterage operation. The charges were
included in the Scale of Rates.
Bombay
Custom House Agents’ Association (BCHAA)
(i).
There is no reason to why the Lighterage charges should not be collected
by the Port Authorities. There must, however, be proper
administration and accountability with regard to the charges payable and to
prevent malpractice or misuse of discretionary powers by port officials.
The statement that the requirement of lighterage and transhipment is solely
between the Shippers / Consignee and has nothing to do with vessel owners is
incorrect and far from the truth.
(ii).
The Lines and the vessel owners carry the cargo, for which sea
freight is recovered for movement of cargo from Port to Port so as to ensure
that cargo is protected and safeguarded during transit and the same is properly
discharged at the discharge Ports. The cargoes are being discharged on
free out basis. It is presumed that the said lighterage charges are part
of the sea freight; hence if vessel owners intend to transfer the cargo
at the lighterages, it is being undertaken for the vessel convenience and
not due to any preference sought by the Shippers or Consignee.
(iii).
In view of the above, we do not find any reason for the request
forwarded by the MANSA, who are agents of vessel owners, that need
consideration, since Lighterage of the vessel being done for ship
convenience solely.
Bombay
Chamber of Commerce and Industry (BCCI)
The comments given by the BCCI relate to ‘light dues’
imposed by the Government; and, not about the fee in reference
levied by the MBPT. Since
its comments are not relevant to the issues agitated by the MANSA, they
are not considered in this case.
3.
A joint hearing in this case was held on 24 December 2001 at the MBPT
premises in Mumbai. At the
joint hearing, the following
arguments were made:
Mumbai and Nhava-Sheva Ship Agents’ Association
(i).
Where is the service to justify the charge? The services they cite are
all covered by Port Dues.
(ii).
For berth hire they go on one basis : 50%, ‘per
day’, etc; but, for lighterage they go on a different
basis.
(iii).
The entire operation is done by cargo interests. Lighterage point
is also chosen by them. Why
shall vessels bear the cost?
(iv).
Lighterage can be done at anchorage, or in the approaches,
or (even) outside. Only in monsoons, when the sea gets rough,
the vessel has to come in. Normally,
therefore, the possibility of the vessel coming alongside is not there.
(v).
Port cannot verify the details behind acceptance of the certificate given
by the Master. Is this an acceptable arrangement? There is plenty of
scope for manipulation.
(vi).
If the MBPT can provide deeper anchorage points, these lighterage
vessels will come into the Port. No need to operate at the outer roads.
The MBPT will earn more through Port Dues, Pilotage, etc.
(vii).
In the ILL case, charge was on cargo on a ‘per tonne’
basis. Here they have introduced on ‘GRT basis’. That
is why vessels are required to pay (what really the shippers must pay).
(viii).
Bill of Lading is different from a Master’s certificate.
The latter is not a legal document. There is a scope for manipulation.
It is better to have fixed slab rates with respect to GRT so that there is no
subjectivity.
Mumbai
Port Trust,
(i).
Our berths are empty. Why should we encourage lighterage
operations?
(ii).
As regards Calendar Day or 24-hour unit, we will adopt the berth
hire logic here also. We will streamline this in the General Revision
proposals slated for mid-January 2002.
(iii).
Conceding the principle ahead of that will require our Board’s
permission.
(iv).
We have no control over the transhipment cargo. Shipper may do all
the operations. But, the vessel asks for the permission. So,
the vessels must pay.
(v).
Certificate of a Master of the vessel is a legal document. How can
MANSA delink it?
4.
With reference to the totality of information collected during the
processing of this case, the following position emerges:
(i).
The existing Scale of Rates (Port of Mumbai Pilotage, Tug
Assistance, Towage Mooring and Other services Fee Order, 1998)
contains a provision to levy lighterage dues on mother vessels anchored /
occupying a place in stream for working cargo.
The said Scale of Rates was approved by this Authority in October 1998.
That being so, this tariff item cannot be said to be levied by the
MBPT arbitrarily or without legal backing.
The question now under consideration is about continuance of this tariff
item.
(ii).
It is noteworthy that the system of levying charges on vessels which work
at anchorages is not unique to the MBPT but is in vogue at many other major
ports.
(iii).
One can argue that a vessel at anchorage pays anchorage fees for
occupation of space; why should it be made to pay higher lighterage dues
when it continues to occupy the same space but only carries out cargo operation.
It is to be clarified that anchorage fees are levied during the period
vessel is not working cargo. Lighterage
dues are levied only for the period vessel works at anchorage.
That being so, there is no double recovery of charges for the same
period of time.
It is to be recognised that anchorages inside the port or port approaches
are generally meant for vessels to wait.
Cargo operation is expected to be carried out at the designated berths /
jetties. For some reasons,
if mid-stream transhipment takes place, a port stands to lose revenue
since anchorage fees are far too less than normal berth hire charges.
Irrespective of certain compelling reasons like draft restriction,
etc. for carrying out lighterage operation, the fact cannot be
ignored that a vessel while lighteraging cargo at anchorage carries out a
commercial activity. Consequently,
it has to pay at a rate higher than the fees prescribed for normal idling.
(iv).
As has been pointed out by the MBPT, lighterage dues are not
levied from vessels engaged in midstream discharge for reducing the draft to
enable its entry into the Docks / Piers of the MBPT.
This means, this charge is levied only in the cases of such
lighterage operation of cargo meant for other ports.
It will be unreasonable to expect a Port Trust to allow free of charge
its facilities to be used by vessels bringing cargo for other ports.
(v).
The other issue raised by the MANSA is about whether the cargo or vessels
interests have to bear this charge.
There appears no reason to shift the incidence of this charge to cargo
owners bearing in mind the fact that the vessel is engaged in a commercial
activity at the anchorage. It
is the carrier’s responsibility to deliver goods at the agreed place of
delivery and in discharging cargo at anchorages, the vessel can only be
seen to discharge its contractual obligation.
Even if it is presumed that such operation takes place at the request of
the consignee, no one else other than the vessel has agreed with such
request. As has rightly been
pointed out by the BCHAA, transfer of cargo at the lighterages is
undertaken for the vessel’s convenience.
Whether contract of carriage is on FIO terms or not is irrelevant since
the vessel has to do this lighterage operation primarily due to the fact that it
has agreed beforehand to deliver cargo at a place where it cannot perhaps enter
in a fully loaded condition.
(vi).
The existing Scale of Rates of the MBPT prescribes lighterage dues and
anchorage charges on a ‘per day’ basis.
The change effected by this Authority in unit of berth hire charges (i.e.
reduction from 24-hour basis to 8-hour basis) will equally apply in the cases of
lighterage dues and anchorage fees.
While accepting such conversion, the MBPT has requested that the
change in the unit of charge may be introduced alongwith the next general
revision/ review of the Scale of Rates.
It has also separately informed us that its proposal for the next general
revision of the Scale of Rates is under final stages of formulation.
It is to be recognised that a change in the unit of charge will
definitely have revenue implications to the Port; and, an
opportunity of revenue adjustment is to be provided to the Port before effecting
changes in the unit of charge. This
adjustment can be more meaningfully carried out at the time of the next general
review / revision of Scale of Rates.
Till such time, this Authority finds it reasonable to allow the
existing unit of charge to continue.
The MBPT is, however, advised to formulate its proposal for
the next general review / revision accordingly taking into account the changes
to be introduced in the unit of charge of lighterage dues and anchorage fees.
(vii).
The MANSA has also complained about the lack of proper documentation and
supervision of lighterage operation.
The MBPT has admitted that no special supervision is maintained for
lighterage operation; and, it goes by the certificate issued by
the Master of the vessel to levy the charges.
It has also pointed out that this system of working has not caused any
complains so far about malpractice / arbitrariness by any port official.
Supervision of operations is a Port management function in which this
Authority does not like to interfere.
Notwithstanding this position, this Authority likes to advise the
MBPT to review the existing arrangement and instal a proper mechanism which will
pluck possible revenue leakages and also minimise, if not completely
eliminate, exercise of discretion by its officials.
5.1.
In the result, and for the reasons given above, and based
on a collective application of mind, this Authority finds that the
representation of the MANSA for cancellation of lighterage dues levied by the
MBPT does not have force; and, accordingly, it is rejected
5.2.
Notwithstanding the rejection of the representation of the MANSA,
its request of change in the unit of levying lighterage dues will be considered
at the time of the next general review / revision of the concerned Scale of
Rates. The MANSA will,
therefore, be well advised to canvas this issue with the MBPT even as the
general revision proposals are being formulated.
(S.
Sathyam)
Chairman
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