Port operations

Approval

What government approvals are required in your jurisdiction for a port operator to commence operations following construction? How long does it typically take to obtain approvals?

Several environmental and construction permits need to be obtained from national and local authorities. Although this is a process that takes some time, several permits may be obtained during the building process in order to prevent considerable delays.

Typical services

What services does a port operator and what services does the port authority typically provide in your jurisdiction? Do the port authorities typically charge the port operator for any services?

Key competencies of the port authority are predominantly related to the operational side of the port. As an example, an overview of the key competencies of the port authority of Rotterdam is given below:

  • Planning and access of vessels in the port area: from two traffic control centres the traffic service operators monitor all vessels which enter and leave the Port of Rotterdam or travel through it.
  • The harbourmaster’s division checks whether vessels comply with shipping regulations concerning environment and safety. In the event of incorrect or unsafe actions, measures are taken. In addition, systematic checks are carried out to make sure shipping companies and agents comply with the statutory administrative reporting obligations.
  • As the Port Security Officer in the Port of Rotterdam, the harbourmaster holds the authority for security in the entire port, on behalf of the Mayor of Rotterdam.

Under certain circumstances the harbourmaster may grant permits, exemptions, approvals or directions. For example, the harbourmaster grants permits for the operation of communication vessels or for lashing containers on seagoing vessels. Furthermore, the harbourmaster may grant exemptions from certain provisions in the port regulations (eg, under certain conditions it may be allowed to use anchors or disinfect vessels).

In addition to the public tasks outlined above, the port authorities typically conclude commercial lease agreements with port operators for which the port authorities charge tariffs. Furthermore, they may levy tariffs to vessels accessing their ports.

Access to hinterland

Does the government or relevant port authority typically give any commitments in relation to access to the hinterland? To what extent does it require the operator to finance development of access routes or interconnections?

Accessibility and interconnectivity of port areas is one of the policy commitments of the national government. Operators generally do not finance the main access routes, as infrastructure is regarded as one of the public service obligations of the government. The national, provincial and local governments will instruct other parties to build main roads and other infrastructure, such as railways, connecting the Port of Rotterdam with the European hinterland. Private access routes within the port area may be privately owned.

Suspension

How do port authorities in your jurisdiction oversee terminal operations and in what circumstances may a port authority require the operator to suspend them?

A shutdown of operations (eg, due to an ongoing disaster), may be ordered by the relevant safety authorities (eg, the mayor of a larger town or city in the region of the port or environmental authorities).

Port access and control

In what circumstances may the port authorities in your jurisdiction access the port area or take over port operations?

The relevant lease and concession agreements may contain a provision granting a contractual right of unrestricted access to the terminal grounds by personnel of the port authority. Authorised harbourmaster division’s personnel and other inspection agencies such as the Human Environment and Transport Inspectorate and environmental and safety agencies may also access port terminals regularly for inspection purposes when exercising public powers.

Failure to operate and maintain

What remedies are available to the port authority or government against a port operator that fails to operate and maintain the port as agreed?

In addition to general contractual remedies, the government may have administrative sanctions at its disposal if such a breach would also entail incompatibility with permit conditions or safety and environmental regulations.

Transferrable assets

What assets must port operators transfer to the relevant port authority on termination of a concession? Must port authorities pay any compensation for transferred assets?

As mentioned before, legal title to the land in key port areas rests with the municipality in which the port is located. The municipalities of Rotterdam and Amsterdam have concluded a master-lease agreement with the port authorities of Rotterdam and Amsterdam, effectively granting these public limited companies the economic ownership of the port area in perpetuity. The port authorities may sublease the land to private port operators in order to generate revenue (this can be done through a tender procedure). In principle, the port authorities are free to agree on a transfer arrangement with the port operator on a case-by-case basis. In many sublease contracts, however, a provision is included that imposes an obligation on the service provider to return the land in the same condition as it was handed over to the port operator at the start of the lease period. Consequently, the port operator is under an obligation to remove any facilities owned by it on the land. Should the government or port authority wish to acquire any of these facilities, it may negotiate with the port operator whether any compensation will be paid for this transfer.

In the event of a (DBFM) PPP project, a transfer of the facilities to the government is generally part of the DBFM agreement. The transfer usually takes place through a transfer certificate in which all the requirements (eg, refurbishment) and procedures for the transfer of these assets are spelled out in detail.