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 Ministry of Environment and Sustainable Development recently issued Regulation 85-E/2017, under which vessels calling at Argentine ports must apply a chlorination process to their ballast water tanks to prevent the introduction of invasive aquatic species. However, the regulation posits only that chlorination must be done on arrival and does not clarify whether it should be conducted by the crew or a local entity. This has resulted in several operational issues.
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.
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 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.
Law 21,066 recently came into force and amended the Navigation Law in connection with the extraction of sunk or stranded vessels and harmful materials contained therein. The changes strengthen marine environment preservation and navigation safety, and the new faculties granted to the Maritime Authority in respect of ships or craft whose condition poses a risk or danger represent a positive change.
A limitation fund was recently constituted in the context of a salvage and towage operation. The plaintiffs opposed the fund's constitution, arguing that, under Chilean law, salvors are not entitled to limit their liability. The Valparaiso Second Civil Court rejected the opposition and upheld the limitation fund. The decision is one of the most relevant substantive decisions in this regard and should provide future certainty in the safeguarding salvors' rights to limit their liability.
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.
Although contracts pertaining to the multimodal carriage of goods are not regulated at the international level, some jurisdictions have their own instruments which address the matter at a regional level, such as the Andean Multimodal Regime. Although case law on the application of the regime is minimal, a recent court decision recognised its mandatory nature in a case pertaining to liability under a multimodal carriage contract.