_______________T^GA^ngOFTND^EmAOl«3INARY

___

|PART 171—SFC.4J

SCHEDULE

Case No. TAMP/102/2001-CHPT

M/s. Sea Port Logistics Private Limited

. -

Applicant

The Chennai Port Trust

- - -

Non-Applicant

O R D E R

(Passed on this 21st day of March 2002)

This case relates to a representation from M/s. Sea Port Logistics Pvt. Ltd.

(SEAPOL) for refund of priority berth hire charges collected by the Chennai Port Trust

(CHPT).

2.1.

The SEAPOL has made the following points in its representation:

(i).

A vessel berthed under normal arrival turn does not attract priority berth

hire charges; however, the CHPT has wrongly levied these charges in

respect of its seven vessels (carrying thermal coal for TNEB) arrived and

berthed during the period 31 January 1996 - 28 July 1996. The CHPT

subsequently refunded the charges levied in respect of two of the vessels.

(ii).

The amount demanded by the CHPT towards the priority berth hire

charges was paid by it under protest in view of a threat from the CHPT

about stoppage of services to its ships.

(iii).

The CHPT was approached several times and the case was argued by

furnishing ample evidences and justifications in support of claim of refund

of disputed amount of Rs.9,90,160/-. The CHPT has refused to accept the

claim of refund on the plea that others will also claim refund.

(iv).

Paragraph 2 of the guidelines issued by the Madras Port Trust (Marine

Department) in respect of collection of fee for providing Priority/ Ousting

Priority vide Circular No. 53/11056/94/M dated 15 March 1995 states that

"the fee for according priority/ousting priority is not leviable on the vessels

where though the necessary directions have been issued for according

'priority/ousting priority' but on arrival such vessels are berthed in normal

course on their turn."

2.2.

In this backdrop, the SEAPOL has requested this Authority to render justice

in the matter arising out of wrong collection of priority berth hire charges by the CHPT.

3.1.

In accordance with the procedure prescribed, a copy of the representation

was sent to various port users/representative bodies of port users and the CHPT for

comments. The comments received from them are summarised below:

The Shipping Corporation of India Limited (SQI*

It is net possible to offer any comments on the claim preferred by the

SEAPOL because the copies of the letters addressed to the TAMP and the

CHPT only state that the vessel were berthed on their normal arrival turn

and the amount of pripsty berth hire charges was paid under protest. It

does not include any document in support of their contention that the

vessels were berthed on their normal arrival turn.

Chennai Steamer Agents' Association (CSAA)

(i).

The Port must not penalise the users with its authority. The TAMP is

requested to deal with such kind of arbitrary actions taken by the port.

(ii).

To arrive at a correct conclusion, the berthing plan during the period in

question needs to be scrutinised.

3.2.

Despite a reminder, the CHPT has not furnished its written comments.

A joint hearing in this case was held on 18 December 2001 in Chennai. At

the joint hearing, the following submissions were made:

M/s. Sea-port Logistics Pvt. Ltd. (SEAPOU

(i).

We have been pursuing with CHPT; We did not, therefore, come to TAMP

earlier. This matter was alive within CHPT even last month.

(ii).

7 vessels were involved.

The CHPT ordered refund in respect of 2

vessels. We wish to claim for the other 5 vessels also.

(iii).

We do not know whether the TAMP can look into this case of 1996 or not.

We do not want to go to court. We will be happy if the TAMP can decide.

(iv).

'Dedicated berth' is not enough. 'Exclusive facility' must also be there. In

the berth concerned, there was no exclusive facility.

Shipping Corporation of India (SCI)

(i).

Reaction of the CHPT to representations is too slow. It takes years for the

users to sort out first with the port. Hence, the delay has occurred in this

case.

Chennai Port Trust (CHPT)

(i).

These vessels were berthed on berths earmarked generally for handling

cargo of TNEB. Charges for priority berthing were inevitable.

(ii).

The berths in question have no 'exclusive facilities'.

They are not

dedicated berths; other vessels can be berthed there without any priority

charge.

Container Shipping Lines Association (CSLA)

(i).

See the correspondence exchanged between the SEAPOL and the CHPT.

The CHPT has been tardy in response. They were abrupt also. The TAMP

must come in to do justice.

(ii).

If the vessels came in the normal course, only normal charges shall be

levied.

(iii).

There is no transparency in this case.

THE GAZETTE OF INDIA: EXTRAORDINARY

[PART III—SKC.4]

5.1.

After the joint hearing, the SEAPOL has sent two letters forwarding copies

of certain documents like guidelines / circulars relating to priority berthing issued by the

CHPT, berthing sheets, and copies of some of the correspondence exchanged with the

CHPT.

The SEAPOL has further pointed out that only at berth JD-2, an exclusive

facility (i.e., working of mechanical hopper with conveyer system) is provided; and, its

vessels were berthed on 4^th & 5^th priority on normal arrival turn.

5.2.

Copies of the above communications received from the SEAPOL were

forwarded to the CHPT for comments. Again, no response from the CHPT has been

received.

With reference to the totality of Information collected during the processing

of this case, the following position emerges:

(i).

This case is about levy of priority berthing charges on some of the vessels

belonging to the SEAPOL on their specific calls at the CHPT on 5

occasions. It is noteworthy that the disputed levy was made by the CHPT

in the year 1996, i.e. before constitution of this Authority.

(ii).

All the major port trusts have a system of priority / ousting priority berthing

for additional charges. This arrangement is in vogue with reference to a

Government instruction on this subject. While disposing of proposals for

general revision of tariffs at many of the major port trusts, this Authority has

observed that in the context of limited availability of berthing facilities at

present, there would always be any number of vessels ready to pay

additional charges; and, this would give scope for exploitation of

(discretionary) powers. Since a final view on this issue has not yet been

taken by this Authority, it was decided neither to approve nor to disapprove

the priority berthing arrangement. The major port trusts have been allowed

to continue to levy the charge as hithertofore until this Authority takes a

final view for common adoption by all the ports.

(jii).

The representation of the SEAPOL mentions about wrong levy of the

priority berthing charges in respect of its 7 vessels carrying thermal coal for

TNEB. berthed during the period 31 January 1996 - 28 July 1996. The

Petitioner has admitted that the CHPT has conceded its demand for refund

of this charge in respect of two of its vessels. The argument of the

SEAPOL is that the remaining 5 vessels were berthed in the normal course

of their arrival and were, therefore, not subject to payment of priority

charges. The CHPT, regrettably, has not furnished any comments in this

case except making some general statements at the joint hearing.

Nevertheless, it appears from the documents furnished by the SEAPOL

that the CHPT had turned down its claim for refund of priority berthing

charges levied on the 5 vessels in reference on the ground that these

vessels were in fact accorded priority in berthing.

Even though issues of 'dedicated berth' and 'exclusive facility' have been

agitated, they do not appear very relevant to this case; the real Issue to

decide on admlssibility of the priority berthing charge is whether priority has

actually been accorded in berthing or not. It is noteworthy that the internal

guidelines issued by the CHPT in this regard itself admits that priority

berthing charges will not be levied on vessels berthed in normal course of

their turn.

(iv).

In order to decide whether these 5 vessels were accorded priority on

arrival, a detailed scrutiny of berthing schedules and vessel waiting position

related to the relevant point of time is essential. It is to be recognised that

allotment of berths to vessels is an operational matter to be handled by the

port trust.

This Authority, therefore, is not inclined to scrutinise such

berthing details. In any case, this Authority does not have the wherewithal

to undertake such scrutiny particularly in the context of lack of response

from the port trust.

(v).

This Authority does not ordinarily give retrospective effect to its orders.

But, in cases governed by special circumstances, it does require

retrospective application of its orders. It is noteworthy that the (then)

Ministry of Surface Transport in consultation with the Ministry of Law has

advised that this Authority, can pass orders with retrospective operation. As

has already been pointed out, this case relates to a period prior to the

constitution of this Authority. Nevertheless, there cannot be any objection

to this Authority to inquire into any tariff arrangement prevalent before its

constitution. If this is not so, then this Authority cannot alter any tariffs

since they have all been notified before its constitution. Surely, the Statute

would not have been amended to constitute this Authority only for the

purpose of witnessing a static tariff situation! Notwithstanding this position,

this Authority generally admits any representation, for effecting changes in

a Scale of Rates notified prior to April 1997 only for removal of

inconsistencies / irrationalities.

In the present case, the issue is confined only to the 5 vessels in reference.

Neither the Petitioner nor the other user organisations who have been

consulted in this case have pointed out that the issue with reference to 5

vessels still lingers on affecting other vessels even now. That being so,

there does not appear to be any need to alter the Scale of Rates of the

CHPT.

Since the issues agitated are relevant only in respect of the 5 vessels in

reference, this Authority finds that it will suffice to remit the case to the

CHPT for the limited purpose of examination of the issues agitated with

reference to the berthing schedule of the relevant period.

In the result, and for the reasons given above, and based on a collective

application of mind, this Authority rejects the application of the SEAPOL as it does not

require setting of any tariff policy / guideline or does not conclusively prove any wrong

application of the Scale of Rates by the CHPT. This Authority however, remits the case to

the CHPT with an advice to re-examine this case under advice to the Petitioner.

S. SATHYAM. Chairman

|ADVT-14^AII/IV-2()()2/Exty.J

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