THE GROWTH OF SEABORNE CONTAINERS CARGO
The
transport of goods by sea has grown exponentially in Brazil. According to
ABRATEC the movement of containers in the port of Santos in 2014 was 2,374,426
TEUs (twenty-foot unity) the largest in Brazil, followed by Itajai, Paranagua,
Manaus, etc. totaling the sum of 6,094,152 units handled.
These
numbers could be more significant if Brazil were more aggressive in competing
exporter enterprise market into the global supply chain with major
international players. In this time of crisis, it is an excellent time for
industry insight to lead their production to the foreign market, taking
advantage of the higher exchange rate. Indeed, with some improvements in
productivity, manpower training and the means of production, prioritizing
innovation, technology and robotics, tends to reduce the marginal costs
increasing profit outlook.
However,
to play in the international trading, either in export or import one must have
knowledge of the market, laws and bureaucracy that often vary by country. A
previous advisory service or hiring a customs broker has enough relevance in
negotiating international contracts and stages of clearance of goods exported
or imported joint to the Customs. For exporters or importers who have little or
no experience, the consulting service is
essential to streamline procedures and minimize risks.
In
a hypothetical simple export operation, such as the sale of granite slabs in
containers for the American market, it can become a nightmare for exporters.
Let's take a glance at a common example; The exporter A sells polished granite
plates, to be shipped in 03 containers twenty feet (03X20') to a B importer
located in Texas, whose port of discharge or final destination is Houston as
described in the letter of credit and bill of lading (B / L).
The
sale terms of contract was
"FOB" (free on board in accordance with international INCOTERMS). In
this case, the goods must be stuffed in containers at the cost and risk of the
shipper / exporter, hire the road haulage and take to the port of shipment to
be cleared by Customs. within the strict compliance of deadline set up by the
maritime carrier.
Therefore,
now close attention to the following procedures is required. If the goods are
not released within the time limit (deadline) for whatsoever reasons, such as:
of delay in clearance of cargo or even the load input of delay in loading port,
this delay will be borne by the exporter and all costs arising from that. Such
as storage fee of containers, collection of dead freight by the ocean carrier,
fine for noncompliance with contractual period and change in the letter of credit
by the issuing bank and the importer. However, if the delay or loss of the
shipment took place by the ocean carrier fault, due to transfer or scroll
shipment, they shall bear the costs.
Another
important factor to note is regarding freight transportation insurance. Being a
sale terms contract arrangement "FOB" means that the insurance shall
be paid by the importer or buyer, once
it is their responsibility to hiring the ocean carrier and pay the insurance of
the goods. However, these terms should be clearly defined in the contract of
sale negotiated between seller and buyer. There are cases where despite the
sale terms are "FOB" buyer asks the seller to hire shipping carrier under
the conditions of freight payable at
destination.(freight collect)
The
risk in this case to the exporter or shipper is, if the importer does not pay
the freight or do not show up at the destination port to remove the goods, the
exporter shall bear all costs and become supportive for billing purposes.
Being, the ocean freight and insurance, although the selling arrangement was
FOB, who hired the ocean carrier to undertake the transport of goods was the
exporter. Brazilian law is very clear on this point when it says in LICC
(introductory law to the civil code) on the art. 9, see below:
Art.
9.
To qualify and govern obligations will
apply the law of the country in which they constitute.
With
regard to bonds, the art. 9 of LICC provides that the law of the country where
they constitute the same is to be implemented to qualify them and govern them.
If
the contract of carriage was accomplished in Brazil, so the Brazilian law has
jurisdiction to solve the conflict. Evidence of hiring this transport agreement
is through the issuing of the bill of lading (B/L) by the maritime carrier
agent. The matter is regulated by the commercial code Brasileiro, dated 1850,
this is it, 25/6/1850 in his art. 578 which reads,
"Art
578 -.
The Bill of Lading will be signed and
delivered within 24 (Twenty four) hours after completion of load ....
There
is also additional legislation, in case the act 9.611 / 98 which deals with the
multimodal cargo transport. The problem is imposed when there are conflict of
law, where the call clause "Paramount" (main clause) in the bill of lading, which usually points to the
maritime carrier country law. For the B / L is governed by the international
rules and conventions, namely, the Hague Rules, Hague-Visby, Hamburg rules.
However, this is a subject that we will deal in the next post
Author
details:
Paulo
Sergio Silvano Oliveira
Lawyer
/ Consultant
Extension
in maritime law (shipping, oil & gas, breakdowns, etc.)
"Expertise"
in ports - having worked for 10 years in VALE ports.
Ship
repair companies and maritime agencies.
Linkedin:
BR.linkedin.com/in/paulosilvano
Blog:
http://paulosilvano.blogspot.com.br
www.abreu-juris.com
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