By Alessander Lopes Pinto*
There is no calm in the seas when it comes to BR do Mar. After a rough period of debates led by important market representatives, the Law that established the Cabotage Transport Stimulus Program – dubbed BR do Mar (Law nº 14,301/2022,) – was finally signed into law early January by the president, with vetoes on important topics for the sector.
The analysis of the vetoes by Congress, on March 17th, did not completely abate the storm that had been brewing. Among the vetoes analyzed by the congressmen, the veto that obliged the shipping companies authorized by BR do Mar to hire a certain number of Brazilian seafarers for their chartered vessels was accepted.
It was immediately presumed that the protection of the employment of Brazilian maritime professionals was being neglected. In addition to this reaction, doubts are being raised about the rules that will apply to the composition of the Brazilian crew on board foreign vessels chartered by companies qualified by BR do Mar.
BR do Mar initially set specific rules to be observed by shipping companies, determining that two thirds of the crew of chartered vessels be Brazilians, at every technical level of officers, including higher and lower ranks, and in every sector of activity, including the deck and engine, in a continuous basis.
With Congress accepting the presidential veto that struck the legal provision that obliged the crew of foreign vessels chartered under the law that established BR do Mar to be composed mostly of Brazilians, the legislation that was previously in force should prevail and should be observed. Normative Resolution No. 06, of 2017 (RN 06), issued by the National Immigration Council (CNIg) – requires that the crew of foreign-flagged vessels used in cabotage navigation in operation in Brazil, have a percentage of Brazilian seafarers and professionals on board, depending on the length of stay in the country.
Thus, foreign vessels operating in cabotage navigation in Brazilian waters for a period exceeding 90 consecutive days must have one fifth of Brazilian seafarers and professionals on board, and one third of nationals after 180 days of operation in the country.
However, there is no obligation under RN 06 or any other legal provision in force to offer Brazilians specific positions on foreign vessels used in cabotage navigation in operation in Brazil. The law that established BR do Mar, in its article 9 (item III) expressly provides that those foreign vessels chartered by shipping companies qualified in the program will have, compulsorily, as Brazilian crew: the master, cabotage master, chief engineer and engine technician.
By imposing this obligation, the law preserved, for Brazilian maritime officers, important positions on board foreign vessels chartered by companies qualified by BR do Mar. However, the law failed to observe any possible conflict of rules as a result of a similar obligation, usually imposed by the flags of the countries of those chartered foreign vessels.
Accepting the presidential veto allowed the current rules to be preserved, applicable to cabotage navigation in general and also to chartered vessels in accordance with the law that established BR do Mar, avoiding the overlapping of rules and allowing the chartered vessels ” via BR do Mar” to hire a greater number of Brazilian seafarers compared to what is already provided for in the existing legislation. The fact is that the employment of Brazilian seafarers will continue to be mandatory on foreign vessels chartered “via BR do Mar”, with the additional advantage of the obligation to offer Brazilians relevant hierarchical positions on board.
Additionally, in relation to the employment of Brazilian seafarers, we must welcome the provisions of the law that established BR do Mar, which imposed a significant encouragement for the training and qualification of Brazilian maritime professionals, driving shipping companies to offer opening for cadets on board, both on Brazilian and foreign vessels chartered as demise charter or time of operation. It is still up to the Federal Government, however, to regulate the minimum number of opening for cadets for each type of vessel and operation.
No calm is expected when it comes to BR do Mar, especially by representatives of maritime professionals, dissatisfied with Congress accepting the veto. A lot remains to be done before the regulation of the BR do Mar can actually come into force and achieve the goals expected by the entire sector and by Brazilian society.
*Law firm founding partner of Lopes Pinto Advogados (LPLaw)