The notary public and the court official of the Maritime Contracts Registry Office recently filed suit against the federal government requesting that:

"it be acknowledged and declared on a decision that the Admiralty Court has no jurisdiction for the registration of maritime contracts considering that such authority is of exclusive jurisdiction of Notary Publics and Maritime Contracts Registry Officers."

The lawsuit progressed through several instances. When it came before the Superior Federal Court on special appeal (REsp 864.409/RJ), the court held that:

"the Admiralty Court has authority for recording maritime ownership, property rights and other burdens encumbering the Brazilian vessels. The Notary Public of Maritime Contracts Registration, on his turn, is incumbent upon executing, drawing up any acts, contracts, agreements, and instruments relative to vessels transactions, recording them in his own registry office."

Despite this decision, the Admiralty Court filed an interlocutory appeal alleging "disobedience to the legal order purportedly perpetrated by the port authority".

In its role as notary, the port authority must ensure that legal transactions that transfer the ownership of vessels are drawn up by the notary public before such vessels are registered. This was not taking place. In its brief to the interlocutory appeal, the federal government declared (by means of official letters from both the Admiralty Court and the port authority) that the court's ruling did not impose such a burden.

The appeal was denied at first instance. However, by a majority of votes, the Eighth Panel of the Federal Court of Appeals for the Second Region granted the interlocutory appeal. In its ruling the court highlighted that ownership registration under the competence of the Admiralty Court or port authority should not be mistaken for registration of a maritime contract (a prerequisite for transfering ownership), which falls under the competence of the registry office.

The court also observed that at no point had it been deemed essential that a public deed be drawn up for contracts relating to vessels with a gross tonnage of less than 100 tons. In such cases, the adoption of a private instrument is lawful, provided that the legal act is duly registered by the notary public.

The government has filed a special appeal against this decision, which is being analysed for admissibility before the appellate court.

For further information on this topic please contact Godofredo Mendes Vianna at Kincaid | Mendes Vianna Advogados by telephone (+55 21 2276 6200), fax (+55 21 2253 4259) or email (godofredo@kincaid.com.br).

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