New rule


Resolution 843 of the National Agency for Waterways Transportation (ANTAQ) sets forth provisions detailing the ways in which companies involved in waterway transportation can be authorised to operate under the deep sea, coastal, offshore and port support navigation regimes in Brazil.

Article 15 of the resolution stipulates that:

"The Brazilian shipping company (EBN) shall at least make one authorized sailing vessel ready and under commercial operation conditions by the referenced company, and in the event of an occasional lay up period superior to 90 (ninety) calendar days, to present a duly evidenced justification for ANTAQ's appreciation and decision."

The requirement for a Brazilian shipping company to make a vessel "ready and under commerical operation conditions" has always been a delicate matter for ANTAQ. The Brazilian maritime transport market resorts to several trading solutions, and companies expect that the choice of trading solution will not affect whether authorisation is granted.

However, as ANTAQ was uneasy with the current regulatory situation, it decided to issue a new rule regulating the matter.

New rule

In December 2009 ANTAQ proposed Resolution 1811, specifying which contractual trading solutions comply with Article 15 of Resolution 843. This proposal was strongly questioned during the public hearing phase.

The concepts of the rule are based on definitions of nautical and commercial management and voyage and time charter contracts. The definitions for voyage and time charter contracts seem to extrapolate the precepts of Law 9.432/97, and could therefore be questioned by shipowners affected by such new regulations.

Further questions concerned whether the rule should take into account other market trading solutions and whether there was reason to restrict them.

Despite such questions, ANTAQ recently approved the resolution, which establishes distinct criteria for compliance and evidence of trade operations of Brazilian shipping companies, depending on the shipping regime and the trade regime within which they operate.

In the offshore support regime, in order to comply with Article 15:

"a vessel's time charter, in conjunction with its nautical management will evidence its trade operation by the owner, whenever this latter effectively operates the vessel and the charterer Brazilian Shipping Company is the direct beneficiary of the contracted support operation."

However, for the deep sea, coastal navigation and port support regimes:

"the time charter of a vessel will not evidence its trade operation by the owner, unless for the specific purpose of transportation of oil and its by-products, gas and biofuels in coastal and deep sea navigation, as long as in conjunction with the vessel's nautical management by the shipowner Brazilian Shipping Company and that the charterer Brazilian Shipping Company (EBN) be the direct beneficiary of the transport of the cargo."


A careful reading of the administrative law demonstrates that there are several weaknesses in its formulation. It is believed that Resolution 1811 should be subject to questioning regarding its legality, in both the administrative and the legal spheres, to the extent that some shipowners may find themselves jeopardised by such a rule.

For further information on this topic please contact Godofredo Mendes Vianna at Law Offices Carl Kincaid by telephone (+55 21 2223 4212), fax (+55 21 2253 4259) or email ([email protected]).