NAWE files amicus brief in Evergreen v. FMC Case

The National Association of Waterfront Employers (NAWE) has filed an amicus brief with the U.S. Court of Appeals for the D.C. Circuit in the case of Evergreen v. Federal Maritime Commission (FMC), reinforcing the importance of weekend and holiday demurrage fees as an essential tool for marine terminal operators (MTOs) to help manage terminal throughput and flow. The amicus brief was filed on July 16, 2025, by NAWE.

At issue is the FMC’s decision on remand in TCW v. Evergreen, which ruled that charging carrier per diem over a holiday weekend was unreasonable under the Shipping Act and violated the “incentive principle.” This ruling has introduced significant uncertainty into demurrage practices across the industry, potentially undermining incentives that encourage timely cargo retrieval and reduce terminal congestion.

NAWE's brief builds on its longstanding involvement in the case. In June 2023, NAWE submitted a joint amicus brief with the World Shipping Council, which was cited by the D.C. Circuit in its earlier decision to remand the case. NAWE’s brief spotlights the concerns of MTOs and ensures their unique operational challenges and responsibilities are directly represented before the Court.

“Weekend and holiday demurrage fees are a critical part of the terminal operations toolkit, helping to maintain fluid cargo movement and discourage unnecessary container dwell time,” said former FMC Commissioner now NAWE President Carl Bentzel. “We are concerned that the FMC’s interpretation undermines these goals, especially given the Court’s prior recognition that the agency’s logic on this matter was flawed.”

In its original ruling, the D.C. Circuit found the FMC’s reasoning illogical, stating that the Commission had not adequately considered factors like advance notice of terminal closures or the role of contractual agreements in demurrage assessments. The Court determined that, “the Commission cannot rest upon a bare assertion that a detention charge assessed for a day when a port is closed has no incentive. It must, at a minimum, provide a logical explanation for its view.” The court cautioned that the FMC’s interpretation could lead to a blanket prohibition on charges during all weekends and holidays—a result not intended under the Shipping Act.

Despite this, the FMC’s recent decision on remand reaffirmed its original position without any new evaluation or rationale, once again dismissing longstanding demurrage policies.

“Unfortunately, in this case, the Commission failed to assess whether the actions of the carrier, Evergreen, or the MTO, Georgia Ports Authority, were in fact unreasonable - the statutory requirement for challenging a shipping practice,” said Bentzel.

NAWE’s new amicus brief urges the Court to recognize the operational necessity and legal justification for demurrage fees applied during weekends and holidays, particularly when communicated clearly to shippers and applied consistently to promote cargo fluidity.

NAWE will continue to advocate for regulatory clarity and policies that support efficient, fluid, and sustainable terminal operations.