Business News of Thursday, 28 February 2013
The next time you walk to any shop to buy goods, take note that you could be paying for taxes that may not have been imposed on you by the Parliament of the Republic of Ghana, but by shipping lines and their agents.
These illegal taxes, which have been in place for some years now without the backing of any relevant laws, are said to have raised the cost of doing business in the Ghanaian sea and air ports, making the country unattractive for the business community.
The Chronicle has heard that on June 3rd, 2002, the Ministry of Roads and Transport directed that “the container administrative fees (the illegal taxes) be suspended immediately.” Though the directive is an exercise of the executive authority of Ghana, under Article 58 clause 5 of the 1992 Constitution, it has been overlooked, whilst the shipping lines and their agents continue to charge the illegal fees, a cost which is passed on to consumers by the importers.
Available information indicates that these shipping lines charge $210 for a 40-foot container cleared at the ports as administrative fee, with a 20-foot container going for $105. At the Port of Lome, which is Tema’s major competitor, a flat rate of $10 is charged.
Again, these shipping lines charge $45 for a 40-foot container cleared at the ports as cleaning cost, with that of the 20-foot going for $22. In Lome, none of these fees is imposed on importers.
This unbridled way of imposing taxes does not end on the above items alone, as the shipping lines and their agents are also charging $22 as evacuation fee, and $5 as First Release charge. They also charge $10 as bill of lading fee. Interestingly, the Lome Port does not impose any of these charges.
During his recent State of the Nation Address to Parliament, President John Dramani Mahama, who had apparently been briefed about the development, raised the issue and directed the authorities to carry out full scale investigations into the charge of the illegal fees.
The Chronicle, however, gathered from independent sources that Ghana Institute of Freight Forwarders (GIFF) had already carried an investigation into the case, and issued a report on it. Though the shipping lines have argued that the fees charged are for actual services provided, the GIFF argued that no evidence for such service provisions had been established or recognised. “In fact, the practice at the sea ports of Ghana is that the cargo is off-loaded from the vessel upon its arrival by stevedores, and handled thereafter by the port authority or its other agents, or independent contractors until delivery to the consignee. The said unloading and handling service is charged directly to the consignee or its agent. Neither the shipping line or its agents play any part whatsoever, in the said service provision,” the GIFF report noted.
“Therefore, even as an implied contract for services, the implied agreement for payment of these charges will fail in law for lack of consideration; no service rendered, no fee deserved. Certainly, however, the existence of any such contract cannot be implied, it must be, and is in fact, expressed in writing.”
“Barring evidence of any contrary arrangement, the contract of carriage of goods between the shipper/consignee and the carrier is generally evidenced by the bill of lading or air waybill. “Should any charges or fees be owing to the carrier other than freight, which ordinarily is pre-paid, the bill of lading, or any prior or contemporaneous agreements incorporated by reference therein, must evidence that. In the absence of any such stipulation, the said fees will have no basis in a contract.
“Therefore, whereupon arrival of the cargo at the contractual port of destination, and all fees and charges contractually stipulated have been paid, the carrier is obligated by law, subject to any lawful lien, to deliver the cargo upon the presentation of the bill of lading or air waybill to the consignee or his agent. There is absolutely no statutory support for these charges. The shipping lines and their agents are private entities in the market place, procuring, providing and being paid for transportation services. There is no statutory support for any non-contractual fees they charge, nor should there be.
“Instead, there appears to be a ban on container fees as charges by the shipping lines and their agents. On the 3rd day of June, 2002, a directive issued forth from the Ministry of Roads and Transport directing “that the container administrative fee be suspended immediately. No subsequent directive lifting said suspension has been issued.
“In our view, the said directive was an effective exercise of the executive authority of Ghana under Article 58 (5) of the constitution of Ghana (1992). The directive was an instrument made, issued or executed in the name of the President, and authenticated by the signature of a Minister, and therefore, its validity cannot be called into question, other than that it is ultra vires. Such a challenge has never been made. It is, therefore, law in that it is binding upon the person or group to which it is directed. A breach may well be prosecuted as an offence, and punished by a fine or jail term.”
The GIFF, therefore, recommended that all ship-owners, charterers and their agents are barred from charging cargo owners or their agents unauthorised fees, howsoever described.
“Unauthorised fees are charges not approved by the Ghana Maritime Authority, or expressly contracted for by the ship-owner, charterer or agent. A contact for services, for which a fee is charged, must describe fully the service(s) to be provided thereunder, and the fees to be charged. No fee shall be charged, except for actual service(s) provided.
“Clear and adequate records shall be kept by ship-owner, charterers and their agents on fees charged and received from owner of cargo or their agents, and shall be produced for inspection upon demand made by the GMA. Ship-owners, charterers and/or their agents shall not be entitled to a lien over cargo, in respect of unpaid, unauthorised fees. Equally important is the need for a comprehensive cargo tariff schedule for the ports of Ghana. This schedule should be drawn up, published and regularly revised in consultation with all key players in the industry,” the GIFF noted in its recommendation.