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17 February 2010
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, Companhia Docas do Espírito Santo (Codesa). The insurance company argued that the damages should have been promptly recorded by the team that discharged the containers, and that failure to record the damages immediately implied the port administrator's liability.
The claim was grounded in the first instance, but Codesa appealed the decision to the Espirito Santo State Court of Appeals. The appeal was unsuccessful, as the court found that the survey had been carried out too late since the damage report had not been drawn up at the time of discharge.
Dissatisfied with this decision, Codesa filed a new appeal to the Superior Federal Court.
After appreciating the claim, the third panel of the Superior Federal Court unanimously decided to condemn Codesa.
On analyzing the appeal, the court rules that a port administrator must be held liable for damages recorded on imported goods where no objections were raised on discharge of the damaged container.
The court applied the provision set forth in Decree 91.030/85, which at the time of the unsuccessful discharge set forth the Customs Regulations provisions. Article 479 of the decree sets forth that "the depository's liability is presumed in the event that volumes are received without reservations or protest".
Codesa argued that the word 'volume' referred to the goods and not the container. However, the court ruled out any confusion between the words, stating that the term 'volume' always relates to the container. It was also pointed out that had the container been damaged during the carriage (ie, before discharge), the immediate record of when the damage had occurred would have been essential to prevent the port administrator from being held liable for damages.
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