ANTAQ resolutions - chartering of foreign ships, supervision of port services and administrative violations

Brazil's national waterway transportation agency (ANTAQ) published on February 18, 2015 in the Official Gazette, two new Resolutions: (i) Resolution No. 1/2015 establishing procedures and criteria for chartering of foreign ships by Brazilian shipping companies operating in any of the following activities: maritime support navigation, port support navigation, coastal navigation and ocean navigation; and (ii) Resolution No. 2/2015, stipulating rules regarding supervision of port services and administrative violations. 

Article 5 of Resolution No. 1/2015 restated the requirement that a Brazilian shipping company chartering a foreign ship must obtain prior approval from ANTAQ, and imposed further restrictions. Now, a Brazilian shipping company is required to own a ship in a similar category to the foreign ship it wants to charter for use in coastal navigation. This requirement seeks to prevent a common practice by which small shipping companies that hold permits issued by ANTAQ to charter foreign ships, but which have no use for such permits, seek to transfer them to large shipping companies. 

The resolution also imposes minimal tonnage on the ships the Brazilian shipping company owns if it desires to charter foreign ships for use in coastal navigation and port support navigation. 

The text of Resolution No. 1/2015 was first submitted to a public hearing by ANTAQ in October, 2014. During that time, suggestions were made on the proposed resolution and the final text of the resolution contains some of these suggestions. One of the suggestions reflected in the Resolution is that there is no minimal tonnage requirement if the Brazilian shipping company charters foreign ships for use in maritime support navigation. 

Resolution No. 2/2015 reviews the rules relating to administrative breaches, applicable to companies operating in terminals and port facilities. It amends Resolution 3274/2014, dated February 6, 2014 and reflects the general legal regime on terminals and port facilities established by Law No. 12.815/2013 and Decree No. 8.033/2013. 

It is important to highlight, amongst the amendments introduced pursuant to Resolution No. 2/2015, the elimination of the minimum penalties provided for in Resolution No. 3274/2014. Pursuant to the new resolution, only maximum penalties are established. 

In addition, Resolution No. 2/2015 amends the text of Article 36, section X, of Resolution No. 3274/2014, exempting companies that operate private port terminals (TUP), from the requirement to obtain ANTAQ's prior approval in the case of change of corporate control. These companies are now required to notify ANTAQ within 30 days from the date of the signature of the closing documents pursuant to which the corporate change took place. 

The Portuguese versions of Resolutions No. 1 and No. 2 as published in the Official Gazette can be downloaded here