Further to a National Cabinet meeting on 16 March 2020, a new regulation was introduced which prohibits entry into Argentina by sea, air or land for 15 calendar days by non-resident foreign nationals; this timeframe may be extended or lifted by the government as deemed appropriate. Given the uncertainty about the duration of these measures, it remains to be seen what effect they will have on the maritime industry.
The question of whether foreign-flagged ships involved in international trade are subject to value added tax (VAT) when supplying bunkers in Argentina is frequently posed. If a vessel is supplied bunkers in one Argentine port and subsequently calls to another Argentine port before proceeding overseas, this is generally considered to be cabotage and is therefore subject to VAT.
Local authorities have increasingly exercised their power to enforce local regulations concerning waste disposal and broadened the responsibility of vessels in this regard. It has become common practice for local authorities to request the compulsory discharge of waste from vessels, even if this action appears to go against commonly accepted international law that is binding in Argentina.
Ships calling at ports on the Parana river are increasingly being asked to submit a pest control certificate to the Health Authority. Failure to comply with this request could require the ship to be fumigated. However, this can be avoided if a ship can prove that it has been fumigated by a competent authority or if it has been exempted from such operation in the past six months and obtained a certificate from the health authorities of a port officially authorised for this purpose.
Under the new Regulation 693-E/2017, the system for checking the cargo-worthiness of holds and tanks of ships and barges for the export of grains and their products and by-products will be compulsorily applied to all ships. In terms of compliance, ships that meet industrial standards should face no major issues and any attempt from surveyors or inspectors to reject such a ship could be challenged.
The Chamber of Representatives recently enacted the new Maritime Code. Whereas the substantive rules on the arrest on sea-going ships will be directly governed by the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships 1952, the procedures governing how to obtain an arrest authorisation will not fundamentally change. Belgium will remain a favourable place to arrest sea-going ships in order to obtain security for unpaid maritime claims.
The Chamber of Representatives recently enacted the new Maritime Code, which will replace – to a large extent, but not completely – numerous provisions in several existing codes. The new code is over 470 pages long and consequently cannot be explained in a few lines; however, this article highlights some of the major changes that will be introduced in relation to existing legislation.
The Supreme Court has rendered its second decision in the long-running road haulage dispute known as the 'sugar case'. The Supreme Court considered the scope of application of the Convention on the Contract for the International Carriage of Goods by Road (CMR), and whether all damages resulting from a loss that arises from a CMR contract can be recovered from the road carrier.
Over the past few years, the Antwerp Commercial Court has considered on multiple occasions the question of whether a carrier's terms and conditions published on its website can be validly incorporated into an agreement. Although the court has provided insightful guidance on the matter, further questions remain unanswered.
A new law has been passed that establishes measures to combat maritime piracy. Under certain conditions, a Belgian-flagged ship will now be allowed to rely on maritime security companies to protect the vessel against piracy. This new legislation is a step in the right direction, but there is still work to be done.
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 an unprecedented action, the owners of a vessel attempted to undermine arrest measures by bringing a constitutional remedy before the Concepción Court of Appeal. The decision helps to protect the institution and procedure relating to vessel arrests and implies more certainty in terms of the outcome of such proceedings.
In the context of the current COVID-19 crisis, Customs recently issued Resolution 1179/20, which implements transitory modes for the treatment of various customs procedures and the ways of presenting documents associated therewith to facilitate foreign trade transactions. Among these transitory measures, Customs has authorised electronic exchanges and amendments to bills of lading. However, customs agents must now obtain the original bill of lading from its issuer and keep it in its importation file.
The Merchant Navy Law, which includes a cabotage reservation system, implies that only Chilean vessels are permitted to provide maritime or fluvial transport services (of cargo or passengers) within Chile or its exclusive economic zone. However, Law 21,138 recently came into force, allowing passenger cabotage on foreign cruise vessels provided that certain conditions are met.
Law 21,132 recently came into force and introduced new definitions of criminal offences in connection with marine biological resources, including the exploitation of banned natural resources or products extracted from the seabed and overfishing. In the case of spills that cause damage to hydro-biological resources, shipowners operating in Chile are now subject to greater contingency – not only in terms of administrative penalties, but also in connection with criminal liability.
The owners of a Chilean tugboat constituted a limitation fund to respond to damages suffered by different parties in connection with the sinking of a towed vessel following a salvage and towage operation. The plaintiffs opposed the fund's constitution, arguing that 'personal acts' committed by the tug's owners exempted them from the right to limit liability. The Supreme Court recently rejected the opposition; its decision should provide future certainty regarding the interpretation and scope of shipowners' personal acts.
Local authorities in Colombia have found themselves facing the same dilemma that the COVID-19 pandemic is causing everywhere: how to protect public health while at the same time maintaining the operation of commercial activities and the flow of necessary goods to the greatest extent possible. To this end, the Colombian National Maritime Authority has been following International Maritime Organisation guidance and a number of regulations have been issued at the domestic level.
The National Maritime Authority recently published the first draft of what could become the new Colombian maritime code. The draft aims to consolidate the main regulations applicable to maritime activities at the domestic level in a single piece of legislation (ie, a maritime code). Among other things, it incorporates regulations on subjects such as navigation-related issues, contracts for vessel exploitation and court procedures for resolving traditional maritime incidents (eg, collisions).
A new resolution, which was recently released at the local level, has introduced requirements for tugboats operating in Colombian waters. The resolution establishes national rules on the organisation, planification and performance of towage operations in line with International Maritime Organisation (IMO) Resolution A 765(18) and other IMO regulations on safety requirements for towed ships and other floating objects.
For local lawyers working in the shipping and transport sector at the domestic level, the question of whether Colombia really is a Hague/Hague-Visby Rules jurisdiction has been posed on many occasions. In particular, despite the fact that Colombia has not yet properly ratified any of the existing instruments available internationally, the relevant section of the Commercial Code has supposedly been founded on the Hague Rules.
The implications of the new International Convention for the Safety of Life at Sea (SOLAS) amendment on verified gross mass have been widely discussed in the shipping industry. The concept of 'estimated weight' was recently abandoned and all interests must now collaborate to determine the 'verified gross mass' of any packed container that is to be loaded on board any ship to which Chapter IV of SOLAS applies. Resolution 2793 addresses this issue in Colombia.