On December 26, 2017, Normative Resolution No. 18 (“New Resolution”) of the National Agency for Waterway Transportation – ANTAQ – came into force, in order to regulate the rights and duties of customers, intermediary agents and companies that operate in maritime support, port support, cabotage and long-haul navigation, as well as for the purposes of regulating administrative offences.
The New Resolution is the result of a three-year study by ANTAQ on the need to regulate interests and prevent conflicts between the different agents and customers concerned with transport subject to maritime support, port support, cabotage and long-haul navigation. The topic had already been the subject of a public consultation, which received significant participation from the involved sectors.
According to the New Resolution, the conditions of regularity, continuity, efficiency, safety, topicality, generality, moderateness and punctuality must be permanently observed by long-haul and cabotage maritime carriers, as well as by intermediary agents in the provision of services. Similarly, the Brazilian shipping companies in maritime support and port support navigation must observe the same conditions not only in the provision of services, but also in the operations or availabilities to be contracted.
A number of important innovations were brought about by the New Resolution. For instance, the obligation to register non-vessel operating common carriers (NVOCC); the possibility of cargo retention or refusal of issuance of bill of lading until the payment of freight or general average; and the concept of overstay for containers.
A special focus is also placed on the issue of anti-trust, providing that maritime carriers, intermediaries and Brazilian shipping companies for maritime support and port support should refrain from engaging in acts that might limit, distort or impair free competition or free enterprise, arbitrarily increasing profit or abusively exercising a dominant position. Failure to comply with such duties may result in a fine of up to BRL 600,000.00, which means a fine increase in comparison with the resolutions revoked by the New Resolution. Evidence that the anti-trust issue seems to be gaining increased attention within ANTAQ.