In November 2006 a stevedore died and another was injured while loading vehicles into an Italian flag ship, while the ship was anchored at the Port of Santos in Brazil.

The accident occurred during the replacement of metallic plates that had previously been removed to make room for other cargo. According to the surveyor's report, when the plates were put back in place, they were not adequately secured. Two of the heavy plates fell on the stevedores, who were beneath the plates near the access ramp of the ship. The incident triggered criminal proceedings for involuntary manslaughter.

The case was referred to the Third Criminal Court of Guaruja, but it rejected jurisdiction, transferring the case to the federal courts, following the opinion of the Federal Prosecution Office. However, the Third Federal Court of Santos in turn held that the case should fall under the jurisdiction of the state courts, as:

  • the vessel was not in international waters, but anchored; and
  • the victims were not passengers or crewmembers of the ship.

The conflict of jurisdictions was judged by the Third Section of the Supreme Court of Justice (CC 116.011).

The court decided that the state courts had jurisdiction to judge the case. The reporting judge argued that the fact that the event did not occur inside a large vessel was not enough to trigger the jurisdiction of the federal courts, as for such jurisdiction to apply, the vessel must also be in international transit or at least be about to be in international transit.

In his vote, the judge referred to another conflict of jurisdiction proceeding (CC 43404/SP), where the Supreme Court decided as follows:

"1. The expression 'on board the ship' appearing on art. 109, subsection IX of the 1988 Constitution, means inside a large vessel.
2. Upon a teleological interpretation of the term, we have that the norm aims at encompassing the hypotheses where the crewmembers and passengers, due to the power of the ship, have the possibility of being taken to international waters.
3. If there was no possibility of international transit for the victim and no effective entry into the ship, the Federal Court's jurisdiction is ruled out.

Following the decision, the proceeding will soon be remitted to a state court for processing and judgment.

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]).