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.