On February 10 2011 the National Agency for Waterway Transportation (ANTAQ) published Resolution 1967, which approves a proposal for a rule that establishes regulatory parameters to be observed in the provision of container and volume handling and storage services in public use facilities in organised ports, in order to submit it to public hearing.

The proposal discusses, among other things, the terminal handling charge (THC) - that is, the price charged for cargo handling services from the port terminal's gate to alongside the vessel, including the temporary storage of cargo until shipment (for exports) or from alongside the vessel to its placement in the stack of the port terminal (for imports).

According to the proposal, the shipping company will charge the THC to the exporter or importer. This charge will be to compensate for handling expenses paid to the port operator.

Collection of the THC is a controversial issue and there is already discussion on the matter in Brazilian courts. Before the privatisation of ports, the THC existed in the form of a customs fee, which was paid by the user, but supplemented (to expedite port services) by the shipowner. Since privatisation, the THC has been paid by users. In some cases this new guideline has generated legal disputes.

The proposal also addresses the 'box rate' - the fee paid for the service of cargo handling between the port terminal's gate and the vessel's hold, including the temporary storage of cargo until the shipment (for exports) or between the vessel's hold and placement of such cargo in the stack of the port terminal (for imports), considering in the latter case the absence of a contract clause determining delivery at the terminal's gate.

The services covered by the box rate are performed by the port operator, as a contractor of the shipping company, upon remuneration freely negotiated and set in a service contract.

Despite these clarifications, it seems that the resolution will not end the existing conflicts regarding the THC. The public hearing still has no scheduled date.

For further information on this topic please contact Godofredo Mendes Vianna at Law Offices Carl Kincaid by telephone (+55 21 2276 6200), fax (+55 21 2253 4259) or email ([email protected]).