In our news circular 16 of 2019 we explained our involvement in several cases where Customs Fines were imposed on shipowners in the Netherlands due to alleged violations of the regulatory requirements regard the concentration levels of the identifier “Solvent Yellow 124” in duty-free bunkers.
In almost all of these cases the courts have ruled against the shipowner. An exception was one of the matters which we discussed in our aforementioned circular. The custom officials appealed the decision and the appeal court has in the meantime hand down judgement, ruling as follows:
- The court was satisfied that the samples used by the customs officials were correctly taken and analysed;
- The duty to show that the bunkers used by a vessel were in fact duty-free lies with the shipowner; and
- The fact that the concentration levels of solvent yellow in the bunkers did not meet the requirements under the applicable regulations was sufficient for a fine to be imposed. It was not necessary for the customs officials to provide evidence explaining the variation in concentration levels.
In summary, the appeal court ruled in favour of the custom officials and overruled the court of first instance. Whilst there are still matters ongoing but as things stand the Dutch jurisprudence provides very little prospect to any shipowner to successfully oppose a fine in circumstances where the bunkers on board are found to contain an incorrect concentration of solvent yellow.
We repeat our previous recommendations for members and insureds who consume duty free bunkers to take the following precautionary measures:
- Ensure that during any inspection comparative samples are taken and retained on board;
- Take a sealed sample of each bunker delivery from the vessel’s manifold;
- Retain copies of all purchase orders and delivery notes of bunker deliveries to the vessel;
- Always react promptly to any communications or invitations from Customs pursuant to any inspection, such as invitations for a joint analysis for the filing of submissions.
As previously advised, we recommend that the relevant documentation and evidence be retained as long as reasonably possible to ensure that if a fine is imposed at a later stage the shipowner has the best possible prospect of a successful defence.