Overstay fee does not have the legal nature of a penal clause, says TJ-SP

Demurrage is not a punishment clause in the legal sense but rather compensation for the failure to return containers within the agreed-upon time frame, as it directly impacts the business of shipowners and carriers, affecting them autonomously and sequentially for the duration of the default.

The understanding stems from the Court of Justice of São Paulo’s 24th Chamber of Private Law, which changed the first instance sentence and condemned a plastic industry for delaying returning containers to a maritime transport firm.

The ruling was issued as a response to a delay in the return of containers, a practice known as “demurrage.” The court of origin had dismissed the action, but the Chamber voted unanimously in the opposite way.

According to the rapporteur, judge Plinio Novaes de Andrade Junior, considering the contractual relationship between the parties and the breach of contract due to the delay in returning the containers, the plastics industry’s responsibility for the payment of the “demurrage” was defined, regarding the retention of containers beyond the freely agreed term.

According to the magistrate, the consumption relationship between the parties, resulting from international cargo transport services, was also uncharacterized because the defendant legal entity could not be considered the final recipient of the services, nor did it prove to be a vulnerable party in the relationship, as provided for in Consumer Defense Code article 2, caput.

“In addition, if the defendant does not agree with the debt charged due to alleged contractual abuses, they should have filed their own action to request the review of the aforementioned contract, which did not occur”, concluded the judge.

Source: Consultor Jurídico

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https://www.conjur.com.br/2022-fev-19/taxa-estadia-nao-natureza-juridica-clausula-penal

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