PRACTICE AREAS: Mr. Mendes Vianna has longstanding experience in litigation, with emphasis on shipping matters. His Litigation Practice is mainly centered on shipping activities, including shipbuilding financing, naval mortgages, shipbuilding contracts, affreightment contracts, insurance, recovery claims, arrest of ships, particular and general average, oil pollution, salvage, labor and personal injury claims, acting on behalf of clients before the Civil, Labor and Federal Courts, Admiralty Court, Port Captaincy and ANTAQ (Federal Agency for Waterways Transportation).
PROFESSIONAL MEMBERSHIPS: Chairman of the Maritime and Port Law Committee, Brazilian Bar Association, state of Rio de Janeiro section. Vice-Chair at the Transport and Maritime Law Committee of the International Bar Association – IBA. He is the Coordinator Professor of the Post-Graduation Course on Maritime Law at Fundação Getulio Vargas – FGV – RJ, a traditional Business School in Brazil. He is also a Professor at the MBA program on Shipbuilding and Offshore Industry of UFRJ/ COPPE.
CAREER: Mr. Mendes Vianna is senior partner of law offices Kincaid | Mendes Vianna Advogados, a traditional Brazilian law firm established in Rio de Janeiro in 1932. He joined the Kincaid in 1987 and became a Partner in 1993.
PUBLICATIONS: Maritime Law Handbook - Arrest, Registration, Mortgages and Enforced Sales of Vessels / Maritime and Transport Law Committee of the Section on Business Law of the International Bar Association;
March / 2014 - Shipping Finance Review, Euromoney - co-author. Article: Will Outdated Rules Hamper the Modernization of the Brazilian Shipping Industry?;
January / 2013 – The European Lawyer Reference, Jurisdictional Comparisons, First Edition 2013 – co-author. Theme: Enforcement of Judgments, Awards & Deeds in Commercial Matters in Brazil;
09/25/2012 - Getting The Deal Through, Shipbuilding 2012 – author. Article: Shipping – Foreign Investment in The Brazilian Naval Industry;
08/10/2012 - ABA Committee News – co-author. Article: A Time for Discussing the Rotterdam Rules in Brazil;
August/2012 - Maritime and Transport Law news, newsletter of the International Bar Association Legal Practice Division, Volume 8 number 2 – co-author. Article: Case Study – Legal Battler on Liability and Non Limitaion Arising from a Collision Incident;
06/06/2012 - Shipping Finance Review 2012/13, Euromoney yearbooks – co-author. Article: How is the Brazilian Shipping Industry Modernizing Its Financing System After Staggering Growth?.
EDUCATIONAL BACKGROUND: Mr. Mendes Vianna received his law degree from the Pontifícia Universidade Católica do Rio de Janeiro in 1990. Languages portuguese and english.
The Brazilian National Agency of Petroleum, Natural Gas and Biofuels recently published Notice of Public Consultation and Public Hearing 20 in order to collect input regarding the new rule which will increase the flexibility of the local content rules provided for in concession contracts entered into between the seventh and 13th bidding round for onerous assignment, as well as the first production sharing bidding round of the exploration of oil and natural gas blocks.
The initial expectation from some market analysts with respect to the outcome of Brazil's 14th bidding round was conservative, with Brazil's political turmoil and the downturn in the oil and gas sector clearly inciting this uncertainty. However, it seems that the government's initiative to extend the special customs regime for the import of rigs, vessels and equipment until 2040, as well as its adjustment of the rules in relation to local content requirements, ensured the round's success.
A recent decision rendered by the Brasilia Federal Court of Appeals suspended one of the most anticipated Petrobras international tenders for the charter and operation of a floating production, storage and offloading unit in the Libra field, the largest oil field in the pre-salt region. The suspension will remain in effect until the Brazilian National Agency of Petroleum, Natural Gas and Biofuels rules on Petrobras's local content waiver request.
President Michel Temer recently enacted Law 13.365/2016. The law makes the participation of Petrobras as the exclusive pre-salt operator optional, while setting out Petrobras's pre-emptive right. With the enactment of the new law, the Brazilian government is preparing to conduct the second production sharing round, which will offer four pre-salt areas, in the second half of 2017.
As of May 2016 Rio de Janeiro has begun to levy a new state environmental control and inspection tax on the control, monitoring and supervision of research, mining, exploration and production of oil and gas. All legal entities authorised to conduct such activities are subject to the tax.
The end of Petrobras's monopoly in the pre-salt exploration may become a reality in the near future. Bill 4567/2016, which was recently approved by the Senate and remitted to analysis and approval by the Chamber of Deputies, aims to amend Law 12.351/2010, which regulates the exploration and production regime in the pre-salt area. If passed, the bill will help to attract new investors and allow other companies to be in charge of the exploration.
The Rio de Janeiro government recently approved Law 7,182/2015. The law introduces a state environmental control and inspection tax on the control, monitoring and supervision of research, mining, exploration and production of oil and gas. The tax has faced strong criticism from oil companies which emphasises that, in addition to being questionable from a juridical standpoint, it may have a devastating effect on investments in the sector.
The Rio de Janeiro government recently released Law 7,183/2015, which was published on December 30 2015. The law establishes a value added tax system (ICMS) for operations related to the circulation of goods and on the performance of services for interstate and intercity transport and communication. It will be levied on oil transfer operations between oil wells and concessionaires.
The Brazilian Agency for Petroleum, Natural Gas and Biofuels has launched a public consultation on drafts of the tender protocol and the concession agreement for the 13th bidding round for oil and natural gas blocks. The launch of the 13th bidding round is a milestone, as a successful round will demonstrate that the sector is focusing on the long term, despite the pessimism surrounding Brazil and the difficulties affecting the oil industry worldwide.
The recent worldwide drop in oil prices and the significant increase in the global supply of oil have created concerns for international oil companies such as Petrobras regarding the feasibility of their exploration and production projects. As such, amendments to the legal framework are being considered, including the introduction of more oil companies in the pre-salt area and changes to Petrobras's obligations.
As demand for natural gas increases, Brazil will likely find itself short of gas pipelines. As such, the Gas Law was enacted to establish contractual arrangements for the construction and operation of gas pipelines, which will largely be granted via concession agreements. This regime is now being tested with the Petroleum, Natural Gas and Biofuels Agency's launch of the first pipeline bidding round.
The Brazilian Agency for Oil, Natural Gas and Biofuels has ruled that royalties will be due for oil and natural gas produced during well formation tests – a phase that was previously royalty free. While the rule discourages companies from extending well formation tests unreasonably to avoid royalties, it might make well formation tests too burdensome and oil companies might choose to invest their money elsewhere.
A recent decision of the Brazilian National Council for Energy Policy (CNPE) has brought uncertainty to the Brazilian market. The CNPE – which is responsible for establishing national energy policy – has decided to increase the amount of oil that Petrobras, a state-controlled company, is entitled to produce without competition in the pre-salt area by means of a mixed oil and gas regime.
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.
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.
The National Agency for Waterway Transportation (ANTAQ) Resolution 1766 approves a rule which establishes a list of activities performed in ports and water terminals by Brazilian shipping companies that are authorised to operate in port support navigation. Companies which own vessels that perform any of these activities without ANTAQ's authorisation to operate in port support navigation must comply within 90 days.
A Brazilian shipping company chartered a foreign flag vessel to assist with the carriage of bunker both in cabotage and at the port for supply to vessels. The company assumed that the automatic temporary admission special customs regime would apply, resulting in a total suspension of taxes under the terms of Article 5(VI) of the Internal Revenue Service Normative Instruction 285/03. However, the Federal Revenue disagreed.
The Foreign Trade Chamber (Camex) is mobilising its team of technicians to guarantee Brazil's compliance with international transport and trade conventions. Among the main targets are the Istanbul, Kyoto and Rotterdam Conventions. Camex's main objective is to provide more worldwide exposure for Brazilian international trade. Accession to the conventions should reduce bureaucracy in commercial dealings with other countries.
The National Maritime Administration Agency (ANTAQ) has approved Resolution 1.660, which replaces Resolution 517/2005 and grants authorization for the construction, exploration and expansion of private use port terminals. Parties interested in building or exploring a private use port terminal must submit a request to ANTAQ, which must be accompanied by a summary of the venture's characteristics.
A case before the Superior Labour Court intends to attribute subsidiary liability to a maritime agency for the labour debts of crewmembers who were hired to transport cargo on a ship chartered by the agency. The maritime agency maintains that it charters vessels only for the transportation of goods and therefore cannot be characterized as a service purchaser.
In an attempt to improve levels of care and avoid risks in the transportation of dangerous cargoes, the Infrastructure Services Committee has approved a bill that determines that such transportation should comply not only with rules established in Law 11.442/07, but also with the specific rules of the bodies that are responsible for the sector.
Two reputable Brazilian shipping companies have been involved in an intricate legal battle before the Rio de Janeiro State Court of Appeals regarding liabilities resulting from a collision which took place in 1999. When the defendant was ordered to indemnify the plaintiff for consequential damages and loss of profits, it claimed that the court had not taken into account the limitation of liability resulting from ship and freight abandonment.
Recently issued Decree 7070 provides for the federal government's participation in meetings of the Shipbuilding Guarantee Fund, as well as the manner in which its shares in the fund will be paid up. The fund aims to minimize the credit risk of financing operations that involve the construction or production of vessels, and the risk resulting from a Brazilian shipyard's performance.
A company imported several pieces of equipment, which subsequently arrived damaged at the Capuaba Port in Vilha Vellha, Espirito Santo. The insurance company indemnified the company and filed a redress lawsuit against the port administrator, arguing that failure on the part of the team that discharged the containers to record the damages promptly implied the port administrator's liability.
Recent amendments to the Ports Law established that the expansion of the national port system will be undertaken in accordance with a general granting plan prepared by the National Waterways Transportation Agency (ANTAQ) and approved by the Special Secretariat of Ports. ANTAQ will focus its efforts on drawing up a general granting plan covering Brazilian inland waterways.
The Special Bureau of Ports recently published Ordinance 257, which approves the general granting plan for the exploration of organized ports and maritime private-use port terminals proposed by the National Maritime Administration Agency. This transitional plan is to be reviewed within 15 months.
The National Maritime Administration Agency is considering alterations to the norms governing the charter of foreign vessels for cabotage and maritime support. With regard to cabotage, the agency intends to extend the circulation period to five days, while its changes to the existing offshore support norms concentrate on sub-chartering issues.
The notary public and the court official of the Rio de Janeiro Maritime Contracts Registry Office recently filed a lawsuit against the federal government requesting acknowledgement of the fact that the Admiralty Court is not competent to register maritime contracts.
Legislative Bill 1285/2007 is being considered by Congress. The bill increases the time limit for filing lawsuits against loss or damage of goods carried by waterways to three years. The bill aims to end the conflict between Decree-Law 116/1967 and the Civil Code, which provide for different time limits.
The Commission of Constitution, Justice and Citizenship of the House of Representatives recently approved Legislative Decree Bill 1053/08 of the Foreign Affairs and National Defence Commission, which ratifies the International Convention for Control and Management of Ballast Water and Sediment from Ships. The convention obliges vessels to submit to ballast water inspections.
The Commission of Constitution, Justice and Citizenship of the House of Representatives recently approved Legislative Decree Bill 985/08 of the Foreign Affairs and National Defence Commission, thereby ratifying the adoption of amendments to annexes of the Convention on Facilitation of International Maritime Traffic, which came into force in Brazil in 1977.
The government recently published Decree 6.869, which sets forth provisions relating to the International Ship and Port Facilities Security Code. The decree includes provisions on the institution of an alarm and control network for ships and port facility protection levels.
The National Waterway Transportation Agency is to make changes to the two main rules governing the relationship between an entity granting a concession and the port terminal operators. The shipping industry has been eagerly anticipating the new versions of Rule 55, which deals with leasing contracts in organized ports, and Rule 517, which sets down rules for the construction and exploration of private usage terminals.
The National Maritime Administration Agency recently held a public hearing to obtain subsidies for and additional information on the elaboration of a new regulation that will govern the chartering of vessels by a Brazilian shipping company for cargo transportation in deep sea navigation and release the transportation of cargo prescribed to a Brazilian flag by a foreign shipping company.
There is a longstanding discussion in Brazil regarding which authority should have jurisdiction to apply penalties relating to oil pollution at sea. The municipal, state and federal environmental authorities and the Navy all overlap and all believe that they can impose penalties on shipowners, charterers and other responsible parties. A recent court decision on this issue may set an important precedent for the maritime community.
The National Maritime Administration Agency has approved a regulation proposal granting authorization for the construction, exploitation and extension of cargo transshipment stations. These stations will facilitate the circulation of cargoes in the interior of Brazil, allowing interaction between the waterway network and the railroad and highway networks.
The Congressional Environmental and Sustainable Development Committee recently approved a proposal requiring ships that use Brazilian port facilities to submit to the inspection of ballast water to be discarded in Brazilian ports. The bills were drafted to deal with the environmental impact of discarding ballast water in Brazilian waters, as the relevant international convention is not yet in effect.