Update Volume 2019/16 Customs Fines: Solvent Yellow 124
In the past year we have dealt with a number of cases in which Customs Fines were imposed in the Netherlands pursuant to disputes about the concentration levels of the identifier “Solvent Yellow 124” which is present in duty-free bunkers. Where concentration levels are outside the regulatory norm, the vessel is suspected of having consumed bunkers which are not duty exempt and for which duties should have been paid.
In order to verify that vessels which claim that their bunkers are exempt from duties are in fact consuming duty-free bunkers, Customs officials will attend on board to sample the contents of the bunkertanks and test these samples for the concentration levels of “Solvent Yellow 124”. Pursuant to the applicable customs duty regulations the concentration should be between 6g/1000l and 9g/1000l and any variation beyond those values may constitute grounds to impose a fine.
In several cases shipowners have unsuccessfully appealed the fines with Customs and subsequently taken the matter to court. In almost all of these cases the courts have ruled against the shipowner, even in cases where:
- The fine was only imposed a considerable time after the samples were taken;
- Minor deviations from the regulatory norm are sufficient to impose a fine; and
- The shipowner did not participate in the analysis of the samples.
In a case before the Court in Gelderland, a shipowner did succeed in having the fine overturned but it involved a case in which the deviation was minimal and the Customs officials had only tested the samples 5 months after they were taken.
We recommend the following measures for members and insureds who consume duty free bunkers:
- Retain copies of all purchase orders and delivery notes;
- Take a sealed sample of each bunker delivery;
- Ensure that as part of any inspection comparative samples are taken and retained on board;
- Always react promptly to any communications or invitations from Customs pursuant to any inspection.
In light of the fact that Customs fines are sometimes only imposed years after the initial inspection, we recommend that this information be retained as long as reasonably possible, in particular if there has been an Customs inspection on board your vessel.