Empty return restrictions and per diem: disputing detention when the depot says no

The clearest line in § 545.5

Most of the FMC's interpretive rule on D&D is written in terms of what the Commission "may consider". The paragraph on empty returns is firmer. 46 CFR § 545.5(c)(2)(ii) says that, absent extenuating circumstances, practices and regulations that impose detention when it does not serve its incentive purpose, such as when empty containers cannot be returned, are likely to be found unreasonable.

The logic is the same incentive principle that runs through the whole rule: detention exists to get equipment back into circulation. If the trucker shows up with the empty and the designated return location will not take it, the charge cannot speed anything up. For drayage carriers billed per diem and BCOs billed detention, those blocked days are the most defensible disputes in the D&D book.

How detention reaches you

Detention and per diem follow the equipment. A BCO may be billed detention by the ocean carrier for time the container spent outside the terminal beyond free time. A motor carrier that interchanged the container under the Uniform Intermodal Interchange and Facilities Access Agreement (UIIA), administered by the Intermodal Association of North America, may be billed per diem for the same period. In merchant haulage, the trucker often receives the per diem invoice and then seeks to recover it from the BCO or forwarder that hired it.

Part 541's definition of demurrage or detention includes per diem, and the incentive principle in § 545.5(b) applies to D&D, including per diem, assessed by ocean common carriers, MTOs and ocean transportation intermediaries. Whoever receives the invoice, the blocked-return argument is the same.

Patterns that block a return

Empty return problems rarely look like a locked gate. More often the gate is open and the return still fails. These are the patterns we see most often in disputes we prepare.

• The carrier's designated return terminal posts that it is not receiving that line's empties, or not that size or type (for example 40-foot high cubes)
• A dual-transaction requirement: the terminal accepts the empty only if the trucker also picks up an import or delivers an export, and none is available
• The return location changes after the trucker is dispatched, with no reasonable notice
• No empty-return appointments available in the terminal's appointment system for the days in question
• Return accepted only at a depot that will not take the chassis, forcing a chassis split and extra moves

Evidence that survives the dispute

Empty-receiving notices change daily and are often overwritten. Many marine terminals publish them on their websites by line, size and type, and some gateways aggregate them. If nobody captured Tuesday's notice on Tuesday, proving the depot refused 40-foot high cubes that day becomes an argument about memory.

Build the record from four sources. The posted receiving notice, captured with a visible timestamp, ideally at shift start and midday. The appointment system view for empty returns, showing no slots. The trucker's evidence: the dispatch log, the rejected ingate or trouble ticket, and GPS or gate camera timestamps if available. And the carrier's own advisories about return locations, with send times.

Street turns deserve a note. Reusing an import empty for a nearby export load is good practice and often reduces detention. If a street turn was requested and refused, keep the request and the refusal, since a refused mitigation attempt is relevant to whether the charge served its purpose.

Worked example: three blocked days on five containers

Mesa Line Drayage, a 35-truck motor carrier, delivers five 40-foot high cube containers to a BCO's warehouse and is ready to return the empties on a Monday. Free time ended the previous Thursday, so per diem has run since Friday. The carrier's designated return terminal posts that it is not receiving that line's 40-foot high cubes Monday through Wednesday. Mesa Line captures the notice at 06:30 and 12:00 each day, and its driver has a rejected ingate ticket from Monday morning. The terminal resumes receiving Thursday, and all five empties go back that day.

The per diem invoice bills 7 days per container at $150 per day: 5 x 7 x $150 = $5,250. The 7 days are Friday through Thursday. Mesa Line accepts Friday, Saturday, Sunday and the Thursday return day, and disputes the three blocked days, Monday through Wednesday: 5 x 3 x $150 = $2,250, accepting 5 x 4 x $150 = $3,000. The request cites § 545.5(c)(2)(ii), attaches the six timestamped notice captures, the rejected ingate ticket and the dispatch log, and notes the Thursday return as the first available day.

If the invoice also failed a Part 541 check, for example no stated basis for why Mesa Line is the liable party under § 541.6(a)(4), that goes first in the request, ahead of the operational argument.

Sending the request and recovering upstream

Send the request inside the § 541.8(a) window, which gives the billed party at least 30 calendar days from invoice issuance. The billing party then must attempt to resolve it within 30 calendar days of receipt under § 541.8(b), unless both sides agree to a later date. Use the contact and request channel the invoice lists under § 541.6(d), and follow the documentation requirements on the public page the invoice links to. A request that ignores the billing party's stated format is easy to bounce back.

For a trucker, the dispute often has two directions. Upstream, the request goes to the ocean carrier that billed per diem. Downstream, the trucker may be invoicing its BCO or forwarder customer for the same days under its own contract. Keep those consistent: if the carrier credits the blocked days, the downstream invoice should reflect the credit, and if the carrier denies, the customer should see the same evidence and the denial. One record, shared both ways, avoids a second dispute with your own customer.

Who can be billed after World Shipping Council v. FMC

On September 23, 2025, the D.C. Circuit decided World Shipping Council v. FMC and vacated 46 CFR § 541.4, the provision that limited who a billing party could invoice for D&D. The court found the Commission's treatment of motor carriers, which the rule did not allow to be billed directly, was inadequately explained, and it left the rest of the billing rule in place. The FMC is expected to address the issue further.

For drayage carriers, the practical point is narrow. The ruling changes the question of who may properly receive an invoice; it does not change whether blocked-return days serve an incentive purpose. Every D&D invoice still has to carry the § 541.6 elements, including the basis for why the billed party is liable, and still has to meet the § 541.7 timing rule.

Making it routine

Milestone & Gate Tracking captures empty-receiving status and return appointment availability on a schedule for the terminals in your lanes, and attaches each capture to the containers it affects. When a per diem or detention invoice arrives, the blocked days are already marked. For drayage carriers, connections to PortPro and eModal bring dispatch and appointment records into the same file. See /solutions/drayage-trucking for the full workflow.

ATAHSKIA prepares the evidence and the request; the billed party decides what to send and to whom.