Category: Article

In a ruling published on 1 April 2022, the Second Civil Chamber of the Court of Justice of the State of Rio de Janeiro, accepting the thesis defended in counterarguments by the company being appealed, no longer heard an appeal, given the finding the absence of a specific challenge to the grounds of the appealed sentence.¹

Due to the same reasons, the Fourth Civil Chamber of the Court of Justice of the State of Rio de Janeiro also decided in the same sense, when judging an appeal that failed to comply with this important extrinsic requirement of admissibility.²

The similarity between the two highlighted judgments is not limited to the outcome of the cases, as there is another common fator between the processes, which relates to the values involved. To explain: these are typical cases of strategic civil litigation in Brazil.

Just to give an order of magnitude, the value of these two cases combined reached the amount of a little more than R$32,000,000.00 (approx. $5,700,000 .USD). Therefore, the understanding established by the Rio de Janeiro court in these two judgments, of an undeniable strategic nature for the companies that participated in the processes, indicates a tendency for ordinary instances to demand more rigour, which is already being done long ago by the Superior Court of Justice in Brazil, the fulfillment of the extrinsic requirements of appeal admissibility.

Within the scope of the Superior Court of Justice of Brazil, the admissibility screening of appeals submitted for analysis by the superior court is quite strict, thus restricting the possibilities of facing the appeal merit.

Among the summaries issued by the superior court regarding the obstacles to addressing the merits of appeals submitted to the STJ’s Chambers, summary statement 182 stands out. It is cited as follows:

1 Civil Appeal No. 0100620-80.2021.8.19.0001, Second Civil Chamber, Judge (a). Rapporteur (a). Maria Isabel Paes Gonçalves.

2 Civil Appeal No. 0216631-03.2018.8.19.0001, Fourth Civil Chamber, Judge (a). Rapporteur (a). Maria Helena Pinto Machado.

“The appeal under Article 545 of the CPC is inadmissible if it fails to specifically challenge the grounds of the contested decision”

The jurisprudence of the Superior Court of Justice in Brazil has applied Summary 182, especially when the grounds of the appeal against the decision denying the special appeal are limited to repeating the arguments presented in the special appeal itself, without addressing the specific grounds of the decision denying the appeal.

Such rigour had not been seen in ordinary instances, specifically in second-degree trials at the Rio de Janeiro Court. Even though the Brazilian civil procedure code has na express provision that the admissibility screening of appeals in the second degree can also be rigorous in this sense, in practice, the intelligence of art. 932, item III, and art. 1,010, item III, both of the Brazilian Civil Procedure Code, had been little applied in the judgments of civil appeals. However, the two recent precedents indicated here show that there is a clear sign that greater rigour should be imposed on the verification of extrinsic requirements for appeal admissibility.

Therefore, it is important to understand the legal construction structured in these two processes and validated by the court in the rulings handed down by the Second and Fourth Civil Chambers of the Court of Justice of Rio de Janeiro, respectively.

Since in both cases, the appeals filed against the first-instance judgments merely reproduced the arguments presented in the defenses, without addressing the grounds of the aforementioned judgments, it was argued in the counterarguments that there was a violation of the principle of dialectical appeal and the consequent application of Article 932, III, and Article 1.010, III, of the Brazilian Civil Procedure Code. The relevant legal provisions are as follows:

“Art. 932. It is up to the rapporteur: III – is not aware of an appeal that is inadmissible, prejudiced, or has not specifically challenged the grounds of the contested decision.

Art. 1.010. The appeal, filed by petition addressed to the first-degree court, will contain:

III- the reasons for reform or declaration of nullity”

In the judgments that decided the appeal resources, the thesis of violation of the principle of dialectical appeal due to the lack of specific challenge to the grounds of the judgment was recognised. It is worth highlighting the following excerpts from the rulings:

Civil Appeal No. 0100620-80.2021.8.19.0001-

“(…) On merit, the appellant reiterates “ipsislitteris” the argument conveyed in the defense, in the sense that, in short, the data produced and delivered by the author would have been carried out in disagreement with the requirements contained in the technical specification of the contract. It turns out that he did not attach any documentary evidence to the defense to corroborate the allegations. And, when asked for evidence, she expressed disinterest in the evidentiary phase (e-pg. 670). The ruling came, stating that “In the present case, the defendant alleges that the data produced and delivered by the plaintiff had been carried out in disagreement with the requirements contained in the technical specification of the contract, which is why they were reprocessed and interpreted by the defendant herself. However, this allegation is unaccompanied by any proof.” But, as noted, the appellant reproduces the content of the e-pgs. defense 554/573, depending on comparing both procedural documents; not exercising combat against sentential reasons (…). It must be concluded, therefore, that given the above, in the presente case, the matter referred to this Court has no direct relationship with the appealed judgment. Certainly, the basis for the appeal is not aligned with the subject matter of the decision being contested. Indeed, if the action of the second degree were substitutive, there would be no need for point-by-point analytical resignation. Nonetheless, as the activity carried out in this level of jurisdiction is appealable, the dissatisfied party, when appealing the sentence, must decline the points that intend to see pensioners and indicate the factual and legal foundations that work as support for their claim. Thus, it is evident that the appeal is inconsistent, primarily because the reasons contained within it are not related to the contested judgment”

Civil appeal no. 0216631-03.2018.8.19.0001 –

“Therefore, the appeal filed does not comply with the provisions of art. 1,010, III, of CPC/20151, considering that the reasons for the appeal do not specifically challenge the foundations of the sentence. (…) It is worth noting that the simple repetition of arguments presented before the lower court, without specifically addressing the theses that the lower court used to support the appealed decision, reflects unfounded disagreement on the part of the party with the unfavorable decision, thus not giving rise to the reexamination of the matter and the delivery of a new trial, given the non-compliance with the so-called “Specified Objection Burden”. (…) Finally, considering that the appellant did not attack the reasons for the sentencing Court’s decision, thus failing to meet the extrinsic requirement of admissibility, it is necessary not to hear the appeal. Due to these reasons, I vote not to hear the appeal, due to flagrant inadmissibility”.

It is, therefore, imperative to ensure dialectical coherence between the challenged decision (judgments) and the grounds for appeal. Indeed, if dialectical coherence is not identified, an extrinsic requirement for the admissibility of the appeal is not met.

In this sense, Professor Barbosa Moreira already highlighted in his work: The New Brazilian Civil Process³:

“(…) The reasons for appeal (“grounds of fact and law”), which may appear in the petition itself or be offered in an attached procedural document, comprise, as is intuitive, the indication of errors “in procedendo”, or “in judicando”, or both species, which in the appellant’s view vitiate the sentence, and the explanation of the reasons why they should be considered as such. It has been correctly that mere invocation, especially in standardised documents, of reasons that do not decide to the content of the judgment is not satisfactory”

Conclusion

It is concluded, therefore, that the mere repetition of the arguments already presented in the defense, in a standardised document, without the foundations of the sentence having been effectively challenged, makes the appeal useless since it fails to meet the extrinsic requirement of admissibility, resulting in its nonacknowledgment by the judging body.

Thus, at a time when algorithms and artificial intelligence are applied to the field of justice that allow the mass production of procedural documents, the slightly more rigorous screening of the admissibility of appeals in ordinary instances highlights the danger of standardising such documents in strategic civil litigation in Brazil, which highlights the importance of a lawyer’s careful and diligent performance in conducting the process.

1 Civil Appeal No. 0100620-80.2021.8.19.0001, Second Civil Chamber, Judge (a). Rapporteur (a). Maria Isabel Paes Gonçalves.
2 Civil Appeal No. 0216631-03.2018.8.19.0001, Fourth Civil Chamber, Judge (a). Rapporteur (a). Maria Helena Pinto Machado.
3 MOREIRA, José Carlos Barbosa. O Novo Processo Civil Brasileiro, 18ª Edição, pg. 155.

By Raquel Guedes Sabb

The current Brazilian growth of the energy and oil and gas sectors has generated an exponential increase in the demand for national maritime labor. It is expected that market conditions will be created so that the necessary hiring is effectively carried out in the short and medium term, and that attention is paid to what is actually at stake: the recovery of the Brazilian maritime sector as well. 

Strongly impacted by the crisis in the oil and gas sector and the corruption scandals at Petrobras, the maritime sector has kept its doors closed to hiring since 2014. It is worth remembering that at the time of Lava Jato operation (Car Wash operation), which pointed out the misapplication in the oil company, the segment experienced, in the wake of the crisis, mass layoffs. Numerous contracts for the charter and services of Brazilian and foreign ships were terminated early by Petrobras, causing one of the most serious recessions, especially in maritime support navigation. 

The current revival of maritime support navigation and the use of a greater number of shuttle tankers – resulting from the growth of the oil and gas industry, the expansion of investments in gas thermoelectric projects, stimulating the use of floating storage and regasification units (FSRUs), and the government’s incentive for cabotage navigation, via BR do Mar, encouraging the arrival of more foreign ships in the country, has pressured the increase in the demand for maritime labor and, especially, for Brazilian crew. 

Also note the significant growth in wind power generation in the country and the prospect of advancing this energy matrix to offshore installations, starting in June, when the Federal government guidelines come into force. Large companies have already announced their interest in pursuing the generation of wind energy at sea, which will require the hiring of specialized vessels and, consequently, more crew. 

The expectation of all these events, which has already been heating up the sector, anticipates the need to pay attention to the availability of Brazilian crew members so as to meet the expected demand for maritime labor. Normative Resolution No. 06, dated of 2017 (RN 06), of the National Immigration Council (CNIg), primary objective of which is to protect the employment of Brazilian labor on foreign ships, whether maritime or not, requires that the crew of the vessels of foreign flags in operation in Brazil and employed in Cabotage and Maritime Support navigations and in FSRUs, for example, have a certain percentage of Brazilian professionals on board in proportion to the number of foreigners on board. The proportion of Brazilian professionals that these foreign vessels must have varies between one fifth, one third, half and up to two thirds, depending on the type of navigation and vessel and the length of time they remain in operation in the country. 

The good moment of the maritime sector and the requirements of RN 06 in relation to the employment of Brazilian professionals on board these foreign vessels operating in Brazil have, however, revealed a disturbing reality in relation to the low availability of Brazilian maritime labor, exposing a noticeable difficulty in the selection and hiring, for example, of Brazilian crew members, mainly Officers. 

The training of maritime professionals, balancing labor supply with market demand, needs to be prioritized with medium and long-term policies, in a continuous and effective way. The projected increase in the number of foreign vessels operating in Brazil, in the short and medium terms, makes it an issue even more worrying and urgent to tackle. 

There is no doubt about the good moment of the market and especially for the Brazilian maritime professionals, but the bottleneck that appears to be forming ahead regarding the availability of this maritime workforce exposes companies to a legal and regulatory risk, along with the natural difficulty they will already have to comply with concerning the normative provisions of RN 06. 

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) 

By Alessander Lopes Pinto

The challenge now is to make it possible for the objectives set by the BR do Mar — among others, to expand the offer and improve the quality of cabotage transport, with the promotion of competition in this modal and expansion of the fleet used in cabotage navigation and encourage the training and qualification of Brazilian maritime professionals — to be effectively achieved. 

For now, it is still necessary to regulate several key provisions of the Law. The fact is that an extensive regulatory review must be carried out by Antaq, especially those applicable to maritime navigation under their scope, such as Normative Resolutions No. 01/2015 — which establishes the procedures and criteria for chartering vessels by a Brazilian shipping company — and nº 05/2016 — which establishes the criteria and procedures for granting authorization for Brazilian companies (EBNs) to operate in cabotage navigation. 

The point is that some of these normative changes can only be carried out by Antaq, after the Acts of the Federal Executive Branch, as an example, the one provided for in BR do Mar, article 15, which provides for the Act of the Federal Executive Branch to be responsible for the rules, criteria and the power to establish the maximum limits of tolerance for the identification of the equivalent weight capacity of vessels. Only after the enactment of such Act may Antaq, if it chooses to do so, review its normative provisions related to this matter. 

The Federal Government’s agenda is extensive. It was up to the Ministry of Infrastructure to prepare the draft of the decree that will regulate most of the provisions of the law, as well as to prepare the administrative rule that will regulate the way in which interested Brazilian shipping companies can qualify for the program. 

Law No. 14,301/2022 expressly stipulated that the provisions in article 14 should be regulated by Antaq, which is responsible for defining, as a rule, the criteria for the classification of the charter vessel as operating, that is, effectively used in transport, navigation of cabotage, and belonging to the same economic group. Taking the lead before the measures concerning the regulation of BR do Mar, Antaq opened public consultation on the rule that aims to set such criteria. Interestingly, however, the agency proposed to maintain EBN’s obligation to keep the vessels, owned or demise chartered, with flag suspension, ready and in commercial operation. However, it does not seem to be the purpose, as seem in item I of article 14 of the law that set forth the BR do Mar, to have the criteria for classifying shipping companies qualified in BR do Mar regulated by Antaq, but rather, only to regulate the criterion for the classification as effectively operating the vessel object of the charter. 

The proposition of regulation brought forward by Antaq does not consider in its normative proposal the possibility of chartering foreign vessels in the time modality, provided for in article 5 of BR do Mar. Should we conclude, then, that foreign vessels chartered by time by EBNs qualified in BR do Mar are not subject to preserving their status as effectively operating? 

The regulation regarding the criteria for the classification of the chartered vessel as belonging to the same economic group (Art. 14, II of BR do Mar) was proposed by Antaq via the inclusion of new provisions in Resolution No. 62, dated 2021. The aim of such resolution is “to establish the rules on the rights and duties of users, intermediary agents and companies operating in maritime support navigation, port support, cabotage and sea-going, and to set administrative violations”. At first analysis, it does not seem relevant to define the criteria for the classification of foreign vessels chartered by EBNs qualified in BR do Mar as belonging to the same economic unit in this resolution, considering that this is not its primary purpose. This definition should, indeed, be inserted in the same rule which establishes the criteria concerning the effectively operating vessel. 

It is a fact that both situations of classification of the chartered foreign vessel – whether it is effectively operating or belonging to an economic group – are exclusively relevant to shipping companies authorized in the scope of BR do Mar and, for a regulatory environment more agreeable to the market, it would be better if they were dealt with via a specific rule, along with other topics exclusively proper to qualified shipping companies, and not through innovations to the current rules, scope of which extends well beyond BR do Mar. 

With a view to a clear, efficient and unequivocal regulation of the provisions brought by BR do Mar and which will significantly modify the cabotage navigation in the country, it seems better that the normative adjustments to be done by Antaq should be proposed jointly and simultaneously, even though they only occur after the regulation by the Federal executive branch. This broad regulatory review is unavoidable and essential to adapt the currently existing regulation to the changes brought by BR do Mar.