Brazil: Latest News & Updates from the UK Club's Correspondents - September 2021
The UK Club would like to direct Members to Representacoes Proinde Ltda’s newsletter, Proinde News| 17 September 2021, which contains well written articles on the below topics. The full articles may be accessed by clicking on the article headings below:
The increasing traffic, of ever larger vessels, calling at the Port of Santos, together with faster port operations, all have the potential for increasing the number of wash damage incidents and resulting claims at the port. Proinde provides an overview of the regulations and practical recommendations issued by the Maritime and Port Authorities for preventing wash damage at the port, and for the handling claims when they do arise.
Brazil entered into maritime transport agreements with its neighbours Uruguay (in 1975) and Argentina (in 1985), under which cargoes moved between the ports of the signatory countries should preferably be carried on vessels flying the flags of the signatory countries. Exceptions were allowed only when no such suitable vessels were available. The termination of these agreements means foreign flagged vessels will once again be allowed to move cargoes between Brazil and Uruguay, and between Brazil and Argentina. These bilateral agreements will terminate on 7 October 2021 for Uruguay and on 5 February 2022 for Argentina.
There remains uncertainty in Brazil over the question of whether the ship agent can be sued as representative of the foreign carrier for e.g. customs penalties. Proinde reports on a decision of the Brazilian Superior Court of Justice (STJ) issued last month in which the court decided that the ship agent, “ …cannot be held liable for damages caused by acts performed by order of the shipowner, when within the limits of the mandate.” The country’s Federal Regional Courts (TRF) have consistently also held a similar view and there are ongoing legal challenges against ship agents being sued for Owners’ legal violations. It may however be necessary to wait for the Supreme Court to settle, once and for all, this question of whether the ship agent should be equated to the carrier’s legal representative.
On 27 August 2021, the Ministry of Agriculture, Livestock and Supply (MAPA), Brazil’s National Organisation for Phytosanitary Protection (NPPO), published Ordinance 385 of 25 August 2021 which establishes the criteria and the procedures for carrying out phytosanitary treatments for quarantine purposes in the international trade of plant-based products.
Following a trial period initiated in 2019, the Harbour Master of the Eastern Amazon has authorised vessels to depart from the ports of Belém and Barcarena through the Quiriri channel with drafts of 13.50 metres up to 13.80 metres. This represents a substantial increase in the permitted drafts and vessels sailing with these drafts must strictly adhere to the measures listed in strict requirements listed in Ordinance 88 CPAOR dd. 25-06-2021 (Proinde free translation).
Following recommendations of the National Health Surveillance Agency (ANVISA), on 24 June 2021, the federal government issued Ordinance 655, updating the exceptional and temporary restrictive measures for the entry of foreign nationals into the country. Procedures for crew changes have also been revised. Please see Proinde’s news letter below for details.
In Brazil, casualties and incidents involving vessels and platforms in Brazilian waters are subject to an inquiry by the maritime authority. The findings of this authority are then referred to the Admiralty Court (Maritime Tribunal) whose judges will determine liability, impose administrative sanctions and fines. Although not binding, the decisions of the Maritime Tribunal has significant weight. In this Practical Guide, Proinde explains in some detail how maritime traffic offences and applicable sanctions are processed, and how the maritime authority undertakes investigations into major casualties under IMO's Casualty Investigation Code (CIC).
Members should not hesitate to reach out to your usual Club contact should you have any questions or would like additional information on any of the above topics.