Kincaid | Mendes Vianna Advogados
Rio de Janeiro
Kincaid | Mendes Vianna Advogados was established in 1932 in Rio de Janeiro by a US-born lawyer called Carl Kincaid, jointly with other Brazilian lawyers, and consolidated experience in civil, commercial, corporate and tax law and, notoriously, in maritime law, insurance, international litigation, arbitration, infrastructure, energy and environment.Show more
Shipping & Transport
STJ confirms five-year limitation period for collection of demurrage of containers in maritime transportBrazil | 13 January 2021
In October 2020 the Second Panel of the Superior Court of Justice issued a unanimous decision, on repetitive appeal, establishing that a claim to collect amounts relating to expenses for demurrage previously established in a maritime transport contract (unimodal) is limited to five years by the statute of limitations. This decision ratifies the court's prevailing position on the matter.
The National Immigration Council recently published Normative Resolution 42, which regulates the granting of residence permits for work purposes where no employment relationship exists in Brazil for seafarers on board vessels or foreign-flagged platforms. The new resolution provides an extensive definition of maritime workers, as well as definitions of non-crew professionals and non-sea crew members.
More than 20 years since the enactment of Law 9,432/97 (the Navigation Act), a major reform of Brazil's cabotage laws is underway. The federal government, after public hearings and debate, recently concluded the draft of the BR do Mar Bill and sent it to Congress for urgent review. This article examines the bill's main aims and the measures that it proposes to introduce.
The National Petroleum Agency recently published a resolution regulating the bulk transportation of oil and its derivatives, natural gas and biofuels by water, including deep-sea navigation, cabotage and maritime, port and inland support. According to the new resolution, waterway transportation for export purposes must be carried out by Brazilian companies.
The São Paulo Court of Appeals recently issued a ruling in a redress lawsuit filed by an insurer against an ocean carrier, confirming the lack of proof of subrogation and disregarding the cargo survey carried out unilaterally by the insurer's surveyor. The case concerned cargo damage which had allegedly occurred during ocean carriage from Shanghai to Santos.
The COVID-19 outbreak has been affecting supply chains worldwide and significantly impacting global trade and the maritime industry, including the offshore sector. As new regulations to handle the COVID-19 crisis have been issued on a daily basis, it is paramount that owners, charterers, traders and port operators keep a close eye on legal developments.
The National Petroleum Agency recently published a consultation notice to gather additional information and contributions from the market regarding its draft ordinance on the regulation of non-discriminatory access by interested third parties to waterway terminals (existing or to be built) for the handling of oil, its derivatives and biofuels. The consultation period is 60 days from the date of publication.
On 1 January 2020 the permissible limit of sulphur in fuel oil used on vessels will be reduced from 3.5% to 0.5% pursuant to the International Maritime Organisation's (IMO's) 2020 regulations (known as 'IMO 2020') in order to improve air quality and protect the environment. With less than one month until the regulations enter into force, how prepared is Brazil for IMO 2020?
The Ministry of Infrastructure recently announced a new programme to encourage maritime cabotage. To achieve this aim, the programme will introduce measures to increase the volume of goods transported by cabotage, increase the number of cabotage vessels, increase the competitiveness of Brazilian shipping companies and develop Brazil's shipbuilding industry.
In March 2019 the UN Convention on the Law of the Sea's Commission on the Limits of the Continental Shelf partially approved Brazil's April 2015 southern margin request, which will allow Brazil to add 170,000km2 to its continental shelf in addition to its exclusive economic zone. As a result, Brazil will be able to exercise its sovereign rights for the exploitation of mineral resources and other non-living seabed resources in its expanded maritime territory.
A recent Sao Paulo State Appellate Court case concerned a carriage of goods by sea from Port Everglades (United States) to the port of Rio de Janeiro (Brazil). The court's decision sets an important precedent in recognising that subrogation cannot be used to reinstate a right that no longer applies where a rights holder fails to observe a legal requirement. Therefore, subrogated insurers assume the same rights and limitations as assureds.
Bills of lading generally contain a provision that limits carriers' liability to a certain extent if goods are lost or damaged or other claims arise. Such limitation provisions can be used when a merchant fails to declare the cargo's value (which is often the case). A court recently confirmed that if a contracting party can declare its cargo's value in its bill of lading but chooses not to, the limitation of liability clause provided therein can be applied.
The Brazilian courts recently confirmed that unpaid debts for bunkers supplied to vessels are considered claims with a privileged nature under Brazilian law and thereby permit creditors to obtain security for any debts by arresting vessels in Brazilian ports. This case is one of the first precedents dealing with the application of the Liens Convention 1926 and grants legal safety for bunker suppliers and all other parties that hold credits of a privileged nature under Brazilian law.
In 2016 the International Maritime Organisation approved a reduction of the maximum amount of sulphur that can be contained in ships' fuel oil by January 2020. The National Agency of Petroleum, Natural Gas and Biofuels recently initiated a public hearing to obtain feedback on its proposal to amend Resolution 52/2010 in order to comply with the new requirements. Some parties expressed concerns about the changes, mainly due to the increase in costs in an already difficult economic environment.
The Baltic and International Maritime Council recently published two new clauses which require time charterparties to reduce sulphur emissions. The clauses regulate the effects of Annex VI of the International Convention for the Prevention of Pollution from Ships, which stipulates that, from 1 January 2020, vessels will be able to consume only fuel with a sulphur content less than or equal to 0.5%.
Two members of Parliament recently presented a draft law that would mandate the installation of additional passive safety equipment for new boat engines and factory outlets. The draft law builds on previous legislation which sought to reduce the large number of serious accidents between vessels and the North Region's riverside inhabitants. Legislators await a congressional order to define the committees that will analyse the draft law and its procedural arrangements.
The National Agency for Waterway Transportation recently published Resolution 6,235, approving the agency's regulatory agenda for the 2018-2019 biennium. The regulatory agenda aims to inform the regulated sector and society at large about the agency's main regulatory issues for the biennium.
A court recently confirmed the Brazilian courts' lack of jurisdiction to judge a claim brought by a foreign bunker supplier against a foreign shipowner and operator seeking arrest of the debtor's vessel while calling at a Brazilian port. The decision sets an important precedent and should help to prevent ungrounded arrest claims, as it clarifies that it is paramount to carefully analyse all of the risks involving an arrest lawsuit in Brazil before taking any action in order to avoid unnecessary exposure.
The Sixth Civil Chamber of the Rio de Janeiro State Court of Appeals recently decided that a protection and indemnity (P&I) club was not liable for an associate shipowner's debts. In its decision, the court distinguished the P&I club from insurers operating in the Brazilian insurance market. This decision is paramount because it creates an important court precedent regarding P&I clubs' liability for the damages caused to third parties by their associates.
The 2nd Section of the Superior Court of Justice has unified the court's understanding of the applicable time bar for a subrogated insurer to pursue a claim for damages which occurred during maritime transport. This is a highly important precedent, as it has resolved a long-standing divergence between the Brazilian courts.
The National Agency for Waterway Transportation recently published Normative Resolution 18, regulating the rights and duties of users, intermediary agents and companies operating in offshore and port support, cabotage and deep-sea navigation and establishing administrative infractions. The normative has ultimately introduced innovations into this field – for example, regarding the regulation of intermediary agents and refusals to provide maritime transport services.
The Superior Court of Justice has reversed previous Sao Paulo State Court rulings and recognised the validity of foreign ship mortgages in Brazil. Respecting the acts of sovereignty of countries where vessels are registered, the court highlighted the economic importance of acknowledging ship mortgages of foreign states and emphasised that large vessels must be registered in their flag states and that these registrations have extraterritorial effects.
Federal law provides that all vessels registered before Brazil's port captaincies must buy the mandatory insurance for personal injury caused by vessels or their cargo. However, such insurance has been discontinued due to a lack of insurers willing to underwrite the risks involved. Now, after a number of passenger fatalities in recent accidents, industry players and the government are being called on to ensure that policies are offered which soften the burden borne by victims and their families.
The Ministry of Labour recently published Ordinance 790, amending Regulatory Standard 34 on Working and Environmental Conditions in the Shipbuilding and Ship Repair Industry. The amendments also regulate ship demolition activities. According to the Ministry of Labour, this is because the Brazilian fleet is aging and thus the demand for ship demolition activities may increase.
A majority of the Supreme Court recently ruled that the rules and international treaties limiting the liability of passenger airline carriers – in particular, the Warsaw and Montreal Conventions – prevail over the Consumer Protection Code. Among other things, this decision means that the value of compensation for lost luggage will be limited to the threshold set out in Article 22 of the Warsaw Convention and the amendments made by subsequent international agreements.
Legislative Bill 5018/2016, which is pending approval in the House of Representatives, requires vessels to use an automatic system to measure fuel during navigation. The bill seeks to increase the safety of navigation by preventing vessels from beginning their journeys using precarious methods to assess the quantity of fuel, which can result in fuel exhaustion – a serious risk for the safety of passengers and crew and navigation of the vessel.
Brazil's National Industry Confederation recently asked the Ministry of Foreign Affairs to terminate the maritime transport agreement between Brazil and Chile. A representative from the Brazilian Ministry of Foreign Affairs stated that the government's decision on this matter will consider the position of not only the Ministry of Foreign Affairs, but also the Ministry of Transport, Ports and Civil Aviation and the Ministry of Industry, Foreign Trade and Services.
The Sao Paulo Court of Appeals recently upheld a first-instance decision that, by virtue of subrogation, the insurer was subject to all of the insured's ancillary rights and obligations, including the carriage contract's arbitration clause. The decision sets an important precedent and reinforces the need for insurers to assess all aspects and limits of an underlying carriage contract entered into by the insured before issuing insurance cover.
The National Agency of Petroleum, Natural Gas and Biofuels recently published Notice of Public Consultation and Public Hearing 9. The consultation and public hearing sought comments regarding the enactment of a regulatory act which will declare whether maritime vessels used to acquire seismic data that were built or remodelled in Brazil between 2008 and 2015 fall under the local content exemption rule.
The Brazilian National Agency for Waterway Transportation (ANTAQ) recently published Normative Resolution 5/2016, which approves the rule for providing authorisation to legal entities to perform transportation activities in coastal and deep-sea navigations or operate in offshore and port support navigation.
The presidency recently published Decree 8605, enacting the International Labour Organisation's revised Convention 185/2003 and attachments, which address the new seafarers' identity document. The convention applies to all persons who are employed in any function on board a vessel (other than a war vessel) and habitually engage in maritime navigation.
The Administrative Council for Economic Defence (CADE) recently fined two port operator companies operating in the Santos Port. CADE found that the imposition of the terminal handling charge known as 'THC-2' for customs-bonded dockside terminals at the Santos Port was anti-competitive. On appeal, the appellate court overturned CADE's fine and affirmed that CADE should not intervene in issues relating to the THC-2.
Brazil and Norway recently signed a memorandum of understanding in order to expand and enhance their cooperation in relation to maritime transport. The memorandum lists areas such as offshore support services, vessel charters and maritime transport auxiliary services as areas for cooperation. The memorandum came into force as of its date of signature and will remain in force until further notice.
The president recently signed Law 13,194/2015 into force. The new law has amended Law 7,573/1986, which sets out the requirements for professional education programmes for seafarers. It has also introduced some important changes, such as distance vocational training and new requirements for entry into the Merchant Marine Officers Training School.
The Secretariat of Ports recently issued Ordinance 499, relating to adjustments of the financial balance of port lease agreements. The new rule lists the situations in which adjustments can be sought and establishes the requirements that lessees must meet to request adjustments. Any ongoing proceedings for adjustments must be adapted to comply with the new ordinance.
The Superior Court of Justice recently issued a decision which settled the longstanding debate regarding the applicable statute of limitations for container demurrage claims. Although the Superior Court's position has now been established, no specific law has been enacted. As such, the applicable limitation period for demurrage claims may change in the future.
The Special Secretariat of Ports' goal to include the economic exploitation of fairways in public ports in the Ministry of Planning's comprehensive concession programme is taking shape. As other programmes have been insufficient in maintaining and increasing the depths of Brazilian ports, the special secretariat launched a public consultation in this regard. The attractiveness of concessions will depend on the government's decisions.
In a recent case, a maritime transport company hired a carrier company to transport goods by sea. The companies agreed that the freight would be paid at the port of destination. However, on arrival, the importer did not pick up the goods; thus, the freight was not paid for. The carrier filed an action for damages. On appeal, the court held that the free-on-board clause in the contract did not apply to the carrier or within the scope of the bill of lading.
The Brazilian National Waterway Transportation Agency has published Resolution 3.638, which approves the draft of a new normative act to regulate the chartering of foreign vessels. If passed, the new act may substantially affect the capacity of some companies to continue using foreign flagged vessels to trade in Brazilian waters, including state-owned oil company Petrobras.
Last year the Department of Federal Revenue issued a normative instruction which exempts a consignee from presenting the original bill of lading before a bonded warehouse to withdraw goods. Maritime carriers have since faced lawsuits from cargo owners and non-vessel operating common carriers, requesting that carriers release goods without the need to present the original bill of lading.
The National Agency for Waterway Transportation recently published a new resolution that sets forth provisions for the inspection of port services and details administrative infractions. The resolution applies to the administration of organised ports, leaseholders of port areas and facilities, port operators and holders of port facility authorisations. It also sets forth the obligations with which such parties must comply.
The National Agency for Waterway Transportation (ANTAQ) recently published a new resolution that sets forth the authorisation procedures for the construction, development and expansion of private use terminals, cargo transshipment stations, small public port facilities and tourist port facilities. Before authorisation to develop such types of facilities can be obtained, an application must first be filed with ANTAQ.
The National Committee for Pilotage Matters recently published a public consultation document that deals with the maximum price schedule per manoeuvre for pilotage services in ports in the states of Sao Paulo, Espirito Santo and Bahia. However, pilots and service providers have raised concerns that the maximum prices set by the consultation do not offer fair remuneration for the services provided.
The National Agency for Waterway Transportation recently published a resolution that sets out procedures for the elaboration of lease projects and defines the methodology for the reinstatement of an economic equilibrium for lease contracts for port areas and facilities at organised ports. According to the rule, the leasing of port areas and facilities must always be preceded by a study of technical, economic and environmental feasibility.
The introduction of the new Ports Law heralded the second phase of the National Programme for Port and Waterway Dredging. The programme will be implemented by the Presidency's Division of Ports and by the Ministry of Transportation. In view of this task, the Special Secretariat of Ports recently conducted a public consultation on the terms of reference for maintaining the depth of the fairway and berths in the port of Santos.
The Committee for Pilotage Matters recently conducted a public consultation on the preliminary maximum price schedules for services rendered in pilotage zones at ports and terminals located in the states of Bahia, Espirito Santo and Sao Paulo. The schedules set out the maximum prices, which vary in accordance with ships' gross tonnage and according to sub-regions inside each pilotage zone.
The Admiralty Court recently published Ordinance 50, which sets forth the procedures for pre-registration and registration of hulls or vessels in the Brazilian Special Registry. The new rule increases the list of documents that must be presented by the applicant to comply with one of the procedures, as well as setting out the validity periods for registration and pre-registration certificates.
The National Agency for Water Transportation recently issued draft bid notices and lease agreements for the upcoming public tender relating to the exploration of port areas and the development of infrastructure in the organised ports of Paranagua, Sao Sebastiao, Aratu and Salvador. The choice of winning bidder will be based on the contractor with the greatest handling capacity and the lowest rate for each service package.
The National Agency for Water Transportation recently published a resolution approving for public consultation a proposed rule setting forth provisions on the authorisation for construction, exploitation and expansion of private-use terminals, cargo transshipment stations, small-sized public port facilities and tourist port facilities. The proposal would also make it possible to share berthing infrastructure between private port facilities.
The National Immigration Council recently updated its resolution that regulates the granting of visas to foreign seafarers working onboard tourist vessels operating in Brazilian jurisdictional waters. Among other things, work permits will be granted to each foreign seafarer by the Ministry of Labour for a maximum period of two years, increased from 180 days.
Brazilian law provides for risk premium pay of 40% of the daytime hourly rate to remunerate workers for risks related to unhealthy or dangerous work and other existing employment-related risks. The same law sets forth that no other premium pay will be due to port workers. A Santa Catarina port worker who worked as a foreman recently filed a lawsuit at a labour court to claim the unpaid premium pay set forth in the law.
The Institute for the Environment and Renewable Resources recently published new rules that regulate the technical and administrative procedures for the issuance of environmental authorisation for ship-to-ship operations in Brazilian jurisdictional waters. Such operations typically involve the transfer of oil and oil products from one tanker to another. Once granted, the authorisation will be valid for five years.
During a recent public hearing, the National Agency for Water Transportation announced the draft notices and lease agreements for the upcoming tender relating to the exploration of port areas and the development of infrastructure in a number of organised ports. The choice of winning bidder will be based on the contractor with the greatest handling capacity and the lowest rate for each service package.
The Superintendence of Maritime and Support Navigation of the National Agency for Waterway Transportation (ANTAQ) recently issued the guidelines that must be complied with by Brazilian shipping companies that have hulls under construction registered with ANTAQ for the purposes of granting the use of deadweight tonnage in charters. The service order defines the documents that must be presented.
The Special Secretariat of Ports recently published a new ordinance which sets forth that the minister of state and the head of the secretariat may waive the issuance of new authorisation in certain cases. These include an alteration in the type of cargo handled or an expansion of the port facility area located outside the organised port that does not exceed 25% of the original area, provided that a locational feasibility exists.
A new act determines that foreign vessels admitted into Brazilian waters destined for cabotage navigation or cruise trips along the Brazilian coastline will automatically be subject to the temporary admission regime and waived from customs control formalities. The act states that it has retroactive effect as of May 21 2013, but it has been suggested that it should also apply to events before this date.
Provisional Presidential Decree 601/2012 is no longer in force, after Congress failed to approve it within 120 days. As a practical consequence of this change, those working in the construction, retail, maintenance and repair of vessels would have reverted to the payroll taxation system. However, another decree has been issued to mitigate partially the expiration of Provisional Decree 601/2012.
A new law was recently introduced that aims to provide a new regulatory framework for the Brazilian ports system. However, before being converted into law, several articles of the bill approved by Congress were vetoed by the president. According to the presidency, the vetoes aim to ensure that the main objective of the new Ports Law is realised - namely, opening up the sector and bolstering competitiveness in the ports system.
A number of resolutions were recently published by the National Agency for Water Transportation (ANTAQ) that set forth provisions governing the charter of vessels by Brazilian shipping companies. The main difference between the new resolutions and those formerly in force is the implementation of a computerised charter management system for offshore and support navigation, available on ANTAQ's website.
The notary public and the court official of the Maritime Contracts Registry Office recently filed suit against the federal government requesting acknowledgement of the fact that the Admiralty Court does not have the jurisdiction to register maritime contracts. In turn, the court alleged that the port authority had been failing to fulfil its role as notary with regards registration of vessels.
In 2009 the National Federation of Port Workers filed a notice with the Federal Accounting Court alleging irregularities in the activities of private terminals located in organised port areas. According to the federation, by handling a small proportion of their own cargo in comparison with third-party cargo, some terminals were acting more as public terminals. The court's technical unit recently issued its opinion on the matter.
Following concerns over the visual impact of the view of docked ships from the southern part of the city, the Rio de Janeiro City Attorney's Office recently requested that the port captaincy provide alternative anchoring locations for ships at the port. The changes aim to reduce the large number of ships at anchorage by increasing access to the port at night and during bad weather, among other things.
Congress is in the process of analysing a provisional presidential decree that has created a new regulatory framework for the Brazilian port system, setting forth provisions on the direct and indirect exploitation by the government of ports and ports facilities and revoking the Ports Law. The commission has scheduled public hearings so that representations from those that operate or make use of the port system can be heard.
The National Agency for Water Transportation recently issued a statement announcing that the new economic and financial qualification requirements for granting authorisation for a company to operate as a Brazilian shipping company recently entered into force. Under the rule, applicants must submit independently audited balance sheets. However, those deemed micro-companies or small businesses are exempt.
The National Commission on Pilotage Matters was recently established by the federal government. The commission is expected to rule on the methodology for pilotage service price control and the maximum price for pilotage services in each pilotage zone, as well as measures for improving the control of services in each zone and the boundaries of each zone.
The National Agency for Water Transportation (ANTAQ) recently published a resolution that establishes a procedure for environmental management monitoring and control in port facilities through a number of measures. Under the resolution, the companies in charge of port facilities must submit regular data reports to ANTAQ, which will make ensure that this information is made available to the public.
A Turkish flagged bulk carrier vessel caught fire en route to Argentina and was salvaged by the Brazilian Navy. The Brazilian government later claimed ownership, held an auction and sold the ship to a Brazilian company. However, while undergoing repairs in Turkey following the sale, the ship was arrested by the Turkish authorities on account of debts incurred by the previous owner. Its registration status is now under dispute.
In a recent case, the Ninth Civil Chamber of the Court of Appeals decided unanimously not to grant an appellant's claim in relation to liability for damages. The court upheld the first instance ruling that as the company summoned as defendant was not the actual carrier but its maritime agent, there was no consumer relationship between the defendant and the plaintiff, and therefore the Consumer Code did not apply.
A shipping company recently filed a lawsuit against a client that had hired its sea carriage services, following a delay from the client in returning the container used in the carriage. The Sao Paulo Court of Appeals overturned a first instance decision and held that, as the defendant had not proved that it was not at fault for the delay in returning the container, it should pay the overstay charge.
A provisional measure that reduces the social security charges applied to shipping companies is under discussion before the Brazilian Congress. Congress has recently added to the list of companies that will benefit from the new social security regime to include a number of passenger and cargo carriers. If approved, the inclusion will have a significant impact on Brazilian shipping companies.
The National Agency for Waterways Transportation recently published Resolution 2.510-ANTAQ, which establishes the rules by which authorisation to operate in ocean, coastal, maritime and port supply navigation may be granted to legal persons whose corporate object is waterway transportation. The new resolution brings about changes in relation to vessels under repair and minimum owner's equity, among other things.
A bill that is pending at the House of Representatives aims to modify the authorisation regime applied to the transportation by barge of passengers, vehicles and cargo by interstate and international inland navigation in Brazil, as well as by federal highway or railway. The bill proposes that permission for navigation be granted by means of a permit, instead of the less rigorous authorisation grant.
The federal government is preparing to launch a set of measures designed to modernise Brazil's port infrastructure. Auctions will be held for new public terminals, a bidding process has been announced for the terminals that were leased before the enactment of the Ports Law 1993, and a review of contracts of delegated ports will be carried out.
A bill that provides for the adjustment of lease agreements for terminals and port areas that were executed before the enactment of the Ports Act is progressing through legislative proceedings before the House of Representatives. The bill aims to eliminate legal uncertainty and encourage the Ports Administration to extend the lease agreements for areas within the public port area that were signed before the act.
An appellate judge recently confirmed a first instance decision, in which a salvage company and insurer had been held accountable for environmental civil action. He held that the appellant company presented no evidence to support the allegation of lack of financial capacity to pay the indemnity. He also pointed out that the company's financial results in 2009 were well above the amount of the award.
A foreign bunker supply company recently filed an arrest claim against a foreign shipowner before the Brazilian courts. The bunker supply agreement provided for a foreign jurisdiction clause, but the lawsuit was filed in Brazil. However, after the defence was presented by the shipowner, a decision was rendered ordering the dismissal of the proceedings in view of the lack of jurisdiction of the Brazilian courts.
Brazil recently ratified the International Convention on the Control of Harmful Anti-fouling Systems on Ships with the International Maritime Organisation. The convention prohibits the use of tin-based organic substances and other poisonous substances in anti-fouling paint applied to ships' hulls. The rule also establishes an inspection and certification compliance system under the terms of the convention.
The National Agency for Water Transportation (ANTAQ) recently published an amendment to its internal regulations in order to create the Superintendence of Inspection and Coordination of the Regional Administrative Units. The new entity created by ANTAQ will play a role in both port inspection and navigation inspection.
A Santa Catarina maritime agent filed an action for damages against a shipping company with which it had a maritime agency contract when the contract was terminated without reason. The Rio de Janeiro Court of Appeals agreed with the lower court in judging the lawsuit groundless, as it understood that the maritime agency contract entered by the parties was not in the nature of a commercial representation.
In a recent case a Brazilian shipowner was hired to charter a vessel for an oil company. The shipowner hired a Brazilian shipyard to construct the vessel. Following delays in delivery, the case was brought before the courts, where it was discovered that two contracts existed for two different amounts for the same job. By defining the type of contract applicable to the case, the court defined the liability of the parties.
In a recent case a stevedore died and another was injured while loading vehicles into an Italian flag ship, while the ship was anchored at a Brazilian port. The incident triggered criminal proceedings for involuntary manslaughter. After both the state courts and the federal courts declined jurisdiction, the Supreme Court ruled that the state courts should judge the case.
The Coast and Ports Directorate recently published Ordinance 185/DPC amending the provisions of NORMAN-13. Under the ordinance, any professional who has passed the Admission Special Course for First Assistant Engineers as of 2002 may now carry out inland navigation in the capacity of chief engineer on a vessel of any power capacity. The rules for calculating the time on board have also been altered.
The Senate has once again renewed the exemption on the Freight Surcharge for the Renovation of the Merchant Marine Fleet for the carriage by coastal and inland navigation of goods that originated from or were destined for ports located in the north or northeastern regions of Brazil. The bill has been forwarded to the president for his approval.
As a result of a recent judgment of the Supreme Federal Court, a ship's master is set to face environmental criminal prosecution for having prevented, on two occasions, representatives from the Brazilian Institute for the Environment and Renewable Natural Resources from boarding the vessel in order to carry out an environmental inspection.
The Ports Without Paper project aims to expedite the layday procedures of ships at Brazilian ports by creating a port information portal to facilitate the import and export of goods. The portal will integrate in a single database all communications that must be exchanged between shipping agents and the relevant public bodies. The system is now in place in the port of Rio de Janiero, as well as at Santos and Vitoria.
A bill in course at the House of Representatives provides for the controversial adaptation of terminals' and port areas' lease contracts entered into before the Ports Act was enacted. The bill aims to eliminate juridical uncertainty on the issue, stipulating that refusing to extend the contract or unjustifiably procrastinating will be deemed administrative dishonesty. The bill is in the final stages of being passed.
The Brazilian Agency for Land Transportation recently published Resolutions 3.694, 3.695 and 3.696. The resolutions aim to regulate the use of railways in Brazil and cover the regulation of cargo transportation, mutual transit and production goals. When discussed during public hearings, the changes were considered highly controversial.
The National Agency for Water Transportation recently submitted to public hearing a proposal for the rules granting authorisation for legal entities to operate in deep sea, cabotage, maritime support and port support navigation. The new proposal amends provisions relating to transfer of ownership, authorisation for navigation and owners' equity levels. The agency is currently analysing the contributions received.
In a recent case the Regional Federal Court of the Second Region considered the sanitary inspection fee, under which acts of inspection and health surveillance are taxable. A maritime agency objected to the assessment of the referred fee, which was incurred each time that a loaded ship managed by the company berthed at a Brazilian port. The company was successful at both first instance and appeal.
At a recent public hearing, the National Agency for Road Transportation announced proposals for new regulations for the use of railways. Following its recent participatory public hearing, the agency hopes to obtain further suggestions and constructive criticism on the proposals from interested parties, including users' representatives and current concessionaires.
A Brazilian shipping company that operates with tugboats in its port operations filed a request for amendment of judgment against a decision of the Superior Federal Court's First Panel. The court had ruled that the service of towage constituted part of the berthing and unberthing of vessels; thus, the services tax applied. The company argued that there was no legal provision for the taxation requirement.
A Dutch salvage company filed a lawsuit against the owners of recovered cargo from a Liberian ship that sank in Brazilian territorial waters. It aimed to prevent the owners from taking their goods from the port prior to effecting the payment of the premium that the salvors were entitled to by virtue of the salvage agreed with the vessel's master.
A traditional port support shipping company brought a lawsuit against the Municipality of Salvador regarding the services tax levy on towage services for the term of Decree-Law 406/1968. The proceedings were referred to the Superior Federal Court, which ruled that the tax should not be applied as it would represent a violation of the National Tax Code.
The National Agency for Waterway Transportation (ANTAQ) recently published its resolution approving a proposal for a rule that establishes parameters to be observed in the provision of handling and storage services in public use facilities in organised ports, prior to public hearing. The proposal discusses, among other things, changes to the terminal handling charge for cargo.
The National Agency for Waterway Transportation (ANTAQ) recently published Resolution 1888, which proposes that guidelines be established for the development, structure and presentation form for port areas and facilities lease programmes. The proposal includes provisions for elaborating a lease programme and information on the development of lease programmes.
The National Agency for Waterway Transportation recently published Resolution 1.864, which governs the charter of vessels for inland navigation (ie, navigation carried out in inland waterways in domestic or international routes). The new rule establishes the procedures and criteria for a Brazilian shipping company to charter vessels for inland navigation for passenger or cargo transportation, or both.
The National Agency for Waterways Transportation has approved Resolution 1811, specifying the regulatory criteria relating to trading operations of Brazilian shipping companies. It is expected that the rule will be subject to severe questioning concerning its legality, in both the administrative and legal spheres.
Congress is analysing Legislative Bill 7669/10, which will extend for 10 years the time limit on the freight additional for merchant marine renewal exemption that is applicable to goods transported to ports in the northern and northeastern regions of Brazil. The freight additional is a tax collected by the federal government on entry at the port of discharge from consignees that discharge their goods at Brazilian ports.
A lawsuit is pending before the Superior Federal Court which analyses the service tax levy on maritime towage activities. The lawsuit involves Petrobras and the municipality of Sao Sebastiao. In Sao Sebastiao, the tax authorities believe that maritime towage activities should be understood as activities related to the berthing of ships. Petrobras disagrees, arguing that towage and berthing services are independent services.
A ship called the Bahamas was hired to carry sulphuric acid for three companies located in the state of Rio Grande do Sul. When it was observed that the ship was no longer operating, port authorities went aboard and ascertained that a serious leak of sulphuric acid was heading towards the Patos Lagoon, where the terminal was located. State officials joined forces to stop the leak and ascertain who should be held responsible.