Is Demurrage Owed If the Terminal Caused the Delay? Two Regulators Answer

A detention or demurrage invoice arrives for days when the container could not physically move. The carrier’s designated depot turned the empty away, or the terminal gate was shut for a holiday. Most disputes go straight to arithmetic and re-count free time against gate-out. Two regulators now answer an earlier question: whether those days are chargeable at all. Brazil is also reviewing its version of the rule, with public comments closing at 11:59 p.m. on October 20, 2026.

In practice, both kinds of dispute depend heavily on the same thing: dated proof that the box could not move on the charged days, and that you could not reasonably have moved it sooner. Teams that rebuild that record from emails only after the invoice lands often find it too thin to carry the dispute.

Is demurrage owed if the terminal or depot caused the delay?

Not automatically, in the US or in Brazil. The US Federal Maritime Commission (FMC) asks whether the charge served its primary purpose of promoting freight fluidity, taking the particular circumstances and any other justification for the charge into account. On April 28, 2026, the D.C. Circuit upheld the FMC’s finding that detention billed while the Port of Savannah’s gates were closed, to a trucker who could not have returned the equipment earlier, was unreasonable. Brazil’s waterway regulator, ANTAQ, holds that no demurrage accrues when the overrun comes from an act, omission or logistics failure of the carrier, the terminal it designated or its empty depot.

The two tests can reach the same result where circumstances outside the billed party’s practical control make delivery or return impossible, but they get there differently. The US focuses on freight fluidity and reasonableness; ANTAQ expressly allocates fault and risk. Neither automatically cancels a charge simply because a terminal or depot was unavailable. Both depend on what happened on the disputed days and what the evidence shows.

	United States	Brazil
Standard	FMC Interpretive Rule, 46 CFR 545.5, applied in Evergreen Shipping Agency (America) Corp. v. FMC (D.C. Cir., April 28, 2026)	ANTAQ Acórdão 521/2025, interpreting Resolution 62/2021 (published August 6, 2025)
Question asked	Did the charge serve its primary purpose of promoting freight fluidity, or was another justification such as compensation supported?	Did the overrun come from the user’s interest, choice, fault or business risk?
Facts decisive in the cited case	The billed party could not have acted earlier, the terminal could not accept the equipment, and the carrier showed no compensatory cost	The overrun results from the carrier, its designated terminal or empty depot, or an event allocated to their risk
Clock	No bright-line stop; the reasonableness of the charge depends on the circumstances	Count suspended from the first proven failed delivery or return attempt until the carrier can receive the box
Burden	Carrier must evidence any claimed compensatory purpose; billed party still needs facts showing why return could not occur	User must prove the failed attempt
Status	D.C. Circuit decision upholding the FMC’s fact-specific order	Regulatory understanding; rule under review, comments close October 20, 2026

Demurrage and detention on days the container could not move: US and Brazilian standards as of September 2026. Sources: D.C. Circuit opinion No. 25-1104; FMC; ANTAQ Acórdão 521/2025.

The US test: did the charge promote freight fluidity?

The case began in 2020. Evergreen gave TCW, the trucker Yamaha designated for a Savannah to Newnan, Georgia move, 21 days of free time on the container and 4 on the chassis, then $150 and $20 a day. Yamaha’s plant was shut for COVID, so the equipment was only released on Saturday, May 23. The port was closed that Saturday, the Sunday and Memorial Day, and TCW returned everything on May 26. Evergreen invoiced $1,490 in detention. TCW disputed only the $510 billed for May 23 to 25.

The court upheld the FMC on three facts Evergreen conceded: TCW could not collect the equipment any earlier, the gates were closed to deliveries, and Evergreen incurred no cost from the delay. On those facts, the charges could not have promoted freight fluidity, which the Interpretive Rule treats as the primary purpose of demurrage and detention. They could not be justified as compensation either, because Evergreen offered no evidence of a compensatory cost.

Four carrier arguments failed to save the charge:

Generous free time. Relevant to the overall circumstances, but it did not justify billing the specific days the port was closed.
The trucker agreed to the charges. The FMC held that carriers do not have an unbounded right to contract for whatever they want.
The closure was announced in advance. TCW knew, but could not act on it while the equipment was stuck at the plant.
The box was already in detention. The FMC declined to adopt a “once on detention, always on detention” rule.

Read the limit as carefully as the win. TCW disputed only the $510 assessed for May 23 to 25. The court therefore did not decide the reasonableness of the remaining $980. The ruling does not create a blanket rule that every terminal-closure day is free; it protects the result reached on these particular facts, where no charge could have changed what happened and Evergreen showed no compensatory justification. The FMC guidance quoted by the court applies similar logic to demurrage, using a terminal closed for several days by a storm as its example.

The Brazilian test: whose fault, whose risk?

ANTAQ’s board approved Acórdão 521/2025 on July 31, 2025 as a set of regulatory understandings interpreting Resolution 62/2021, the rule on the rights and duties of shipping users, carriers and intermediaries. In Brazilian usage, container demurrage (sobrestadia) covers the whole period a container is held beyond free time, including return of the empty, which US practice would split between demurrage and detention.

When demurrage applies. Only where the overrun results from the user’s interest, choice, fault or business risk.
When it does not. Where the overrun results from an act, omission or logistics failure of the carrier, its designated terminal or its empty depot, or from an event allocated to their risk.
The clock. In those cases the count is suspended, even if demurrage has already started, from the date the user proves the first failed attempt to deliver or return the container, until the carrier provides effective conditions to receive it.
Force majeure. An event that begins during free time suspends the free time itself.
Pass-through billing. A forwarder or other intermediary passing demurrage on to its customer must present the amounts the carrier actually charged.

The standard is regulatory, and Brazilian judicial doctrine is not completely uniform. Courts have often treated container demurrage as contractual compensation tied to late return, while recent Superior Court of Justice decisions have not spoken with one voice on its legal characterization. Carrier-side lawyers also argue that making user fault a condition of demurrage cuts against traditional contractual treatment. An ANTAQ complaint and a court claim over the same invoice therefore may not be decided on exactly the same basis.

What evidence shows a demurrage charge is not owed?

Both tests run heavily on dated, container-level proof that the box could not move and that you could not reasonably have moved it sooner. A general complaint that the terminal was congested, with nothing timestamped behind it, is the argument carriers reject most easily, as the free time and gate-out audit guide shows. The file that carries a dispute holds:

The first refused attempt: date, time, location, container number and who refused it. Under ANTAQ’s test this is the day the count stops, so a one-day error changes the bill.
Closure notices for the terminal or depot on each charged day, including holidays and weekend gate hours.
Appointment records: slots requested, slots offered and slots refused.
Your own release timing: when the container became available to you and when your side could first move it. Evergreen turned partly on a Yamaha email giving the pickup date.
The empty return receipt (EIR) showing when the box finally went back.
The invoice lines matched day by day against all of the above.

A hypothetical on Brazilian trade shows why the date matters. Free time on an import container ends on March 10. The trucker reaches the carrier’s designated depot on March 12 and is turned away for lack of space; the depot accepts the empty on March 17. Under Acórdão 521, March 11 remains the user’s day. From March 12 the count is suspended until the depot can take the box, so the days that follow are disputable, provided the March 12 refusal can be shown. Without that proof, the user may have difficulty establishing when the suspension should begin.

If your team pieces together refused-return dates from trucker emails and portal screenshots only after an invoice arrives, walk through how ops teams record container events across carriers as they happen.

Brazil’s demurrage rule is open for comment until October 20

ANTAQ has opened Public Call for Contributions SRG No. 03/2026 on its preliminary Regulatory Impact Analysis for Topic 2.6, “Container demurrage: Resolution ANTAQ No. 62/2021,” part of its 2025/2028 Regulatory Agenda. Contributions are accepted from September 21 until 11:59 p.m. on October 20, 2026, through ANTAQ’s electronic form only. Supporting images can go to srg@antaq.gov.br if the sender is identified, and ANTAQ says it will publish the contributions it receives.

When the board approved Acórdão 521, it recommended that the Topic 2.6 text translate those understandings into the rule itself. This review is where carriers and cargo interests will contest how much of the fault test becomes binding text. Carrier-side commentators have already argued in Brazilian legal press that making user fault a condition of demurrage could push up freight rates for shippers more broadly, including those who return containers on time.

For forwarders, NVOCC agents and importers with regular Brazilian volume, the most useful submissions will be dated cases in which a designated depot or terminal refused a container and the invoice still charged for those days.

When the fault test will not help

Delay on your side of the line. A consignee’s closed plant, missing documents or late trucking will generally weaken this type of challenge. In Evergreen, TCW challenged only the three days when the port was closed and return was impossible.

Events allocated to the user. ANTAQ’s 2024 risk matrix for additional storage (Resolution 112/2024), which the Acórdão’s reasoning draws on, places losses from trucker strikes on the cargo user and terminal equipment failures on the terminal.

No bright line in the US. The D.C. Circuit sent the same dispute back in July 2024 because the FMC had treated its incentive principle too much like an automatic rule. On US cargo, the invoice-content checks under 46 CFR Part 541 and the invoice’s dispute period are often the faster place to start; the billing party must allow at least 30 calendar days from invoice issuance to request mitigation, refund or waiver. See the guide to challenging US D&D invoices. For charges already paid, FMC Charge Complaints put the reasonableness burden on the carrier.

Before you dispute on these grounds

List each disputed day and what physically prevented the move on that day.
Confirm whether the cause sat with the carrier, its designated terminal or depot, a closure, or your own release, documents or trucking.
Pull the first refused attempt with date, time and container number.
For US cargo, run the Part 541 invoice checks first and submit the dispute within the deadline stated on the invoice, which must allow at least 30 calendar days from issuance for requests for mitigation, refund or waiver.
For Brazilian cargo, cite Acórdão 521/2025 and the date the count should have been suspended.
If you pass charges on to customers, keep the carrier’s original invoice amounts on file.
If Brazil is a regular lane, decide before October 20 whether to submit cases to SRG No. 03/2026.

FAQ

Can a carrier charge demurrage when the terminal is closed?

In the US, a terminal closure can weigh strongly against the reasonableness of a charge where the billed party could not have acted sooner and the charge could not promote freight fluidity, but Evergreen v. FMC does not create an automatic closure-day exemption. In Brazil, ANTAQ holds that no demurrage accrues when the overrun results from failures of the carrier’s designated terminal or depot.

Does “once on demurrage, always on demurrage” still apply?

Not as a general rule. The FMC declined to adopt it for detention in the TCW case, and the D.C. Circuit upheld that order in 2026. ANTAQ suspends the demurrage count even after it has started, from the first proven failed delivery or return attempt.

Who has to prove a demurrage charge was reasonable?

In a US Charge Complaint, the carrier bears the reasonableness burden for demurrage and detention. In Evergreen, the carrier also needed evidence for its claimed compensatory justification. The billed party still needs dated facts showing what prevented the container from moving.

When does Brazil’s demurrage consultation close?

At 11:59 p.m. on October 20, 2026. Contributions to ANTAQ’s Public Call SRG No. 03/2026 are accepted through its electronic form.

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