The Port State Control and Mandatory Local Certificates for Foreign Vessels Operation in Brazil

Since the end of the Second World War, in the last century, there has been an exponential increase in sea traffic, including the transportation of dangerous cargoes, requiring technical innovations in shipbuilding and adoption of new measures to regulate this significant increase.

In response to these new challenges, from 1958, the United Nations, through the IMO (International Maritime Organization), established new security requirements, which nowadays comprise a legislative framework that includes about 30 Conventions, 30 Codes, hundreds of Resolutions, all emanating from IMO and aimed at safety in the water environment, safeguarding human life and preventing pollution.

As a consequence, there was also a growing need for expert naval inspectors and naval surveyors as means to ensure compliance with the commitments and targets adopted by the signatory states of these conventions.

Admittedly, ensuring that ships navigate in compliance with legal directives is the primary responsibility of their respective Owners, Masters and the states whose flags they fly.

In an ideal world, ships that sail the seas should always be in a position to offer no risks to human life, navigation and the maritime environment, complying with the legal provisions established in international conventions. In the real world, a considerable number of vessels navigate in unsafe conditions, threatening life and the environment, often under the mantle of open or tangential flags for safe navigation requirements, or even closed records, but negligent in regards to these requirements.

In this scenario, Port State Control emerges as a harmonized system of ship inspection procedures, with the purpose of determining the correction of deficiencies found in such inspections, or, as the case may be, even retaining and/or withdrawing vessels that do not have minimum standards (Sub-standard) in order to enforce international conventions.

With regard to foreign vessels that demand the Brazilian ports, the Maritime Authority, through the Port State Control Officer - INCEP - Inspector for Port State Control - and according to the degree of the infraction or the risk offered by the vessel or cargo, apply the following measures, all of an administrative nature: (I) not allowing the vessel to enter the port; (II) not allow vessel to leave; (III) determine that she leaves Brazilian territorial waters and (IV) determine that she is retained in a national port; All attributions of the Brazilian Maritime Authority are born of conventions signed by Brazil, which were incorporated into domestic law.

For cultural reasons, there is confusion in the use of the acronym PSC to identify the Inspector or "duly authorized official", which is the term used in the conventions. PSC or Port State Control, in reality is the enforcement action or control of compliance with the Conventions. The correct acronym for identifying the Inspector is PSCO (Port State Control Officer). INCEP (Inspector for the Control of the State of the Port) is used in Brazil.

As defined in article 2 of Law 9537 (LESTA), naval inspection is an administrative activity that consists of inspecting compliance with this Law, the rules and regulations resulting therefrom and the international acts and resolutions ratified by Brazil, it refers exclusively to the safeguarding of human life and the safety of navigation on the open sea and inland waterways, and to the prevention of environmental pollution by vessels, fixed platforms, FPSO or their support facilities. Unplanned and random action is intended to control the requirements that determine the operational and structural conditions of the ship, established by the National and International Legislation, being carried out by the PSCO (INCEP), in the case of a foreign flag ship, and Flag State (FSC) in the case of a national flag ship.

INCEP should follow a list of priorities for the types of ships, as established by the Vi?a Del Mar Agreement, namely Oil tankers; Bulk carriers; Gas carriers; Chemical and products tankers; and dangerous goods carriers; Passenger vessel; Intended for the transport of vehicles;

The group of naval inspectors (INCEP) are filled by officers of the Brazilian Navy and of the Merchant Navy, after preparatory courses conducted by the Department of Ports and Coasts - DPC, with minimum requirements for approval.

According to NORMAM 04, Chapter 03, the inspection shall consist of the checking of certificates and documents relating to the relevant instruments and the verification of the general state of preservation, maintenance and operation of the ship and its equipment and of the verification of the crew's capacity for operational procedures on board. In the absence of certificates or documents, or if "clear evidence" is found during the initial inspection that the ship, its equipment or crew do not in essence comply with the requirements of one of the Relevant Instruments, a more detailed inspection is conducted, after the inspection is issued an Inspection Report that may or may not include an attachment (form B) detailing the deficiencies found and giving the deadline for compliance with them, which may include the detention of the ship until such deficiencies are rectified. This inspection is by principle unplanned, has no cost and does not generate a certificate.

The naval survey, in turn, consists of the technical and administrative action, occasional or periodic, by which it is verified the compliance with the requirements established in national and international standards, regarding the prevention of environmental pollution and the safety and habitability conditions of vessels and platforms. After the survey it is issued a Survey Report and it may also contain or not an attachment (form B) detailing the deficiencies found and giving the deadline for its compliance. However the inspection in principle is is scheduled, has cost and generates a document or certificate. Among the certificates issued by the Brazilian Maritime Authority for ships operating in Brazilian Jurisdictional Waters (AJB) are the:

-         Certificado de Autorizacao de Afretamento (CAA) - Chartering Authorization Certificate: Is a document issued by ANTAQ (Brazilian Maritime Regulating Authority), which formalizes the authorization of chartering of foreign vessel to operate commercially in long-haul navigation, cabotage, maritime support or port support in n Brazilian Waters, having as legal basis the Resolutions 191, 192, 193 and 195- ANTAQ. The request for the certificate is made by a Brazilian Owner / Charterer (EBN), authorized to operate in Brazil in the requested type of navigation.This certificate is usually valid for only one year and has to be renewed by Brazilian Charterers, the AA (Autorizacao de Afretamento) is the temporary document until such certificate is not issued;

-         Atestado de Inscricao Temporaria (AIT) - Temporary Enrollment Certificate: Document issued by the Harbor Master after the onboard inspection and it is required for all ships after 30 days in Brazilian Waters, its validity is related to CAA certificate, Owners have to renew it from their side every year after receipt of the CAA from Brazilian Charterers;

-         Certificado de Conformidade - Statement of Compliance (SOC) and/or Declaracao de Conformidade para Operar em Aguas Jurisdicionais Brasileiras (AJB): Certificate issued by the Harbor Master to the ship after onboard inspection and if the ship is found in good order a SOC will be issued with validity of one year. The SOC certificate is compulsory for all ships carrying crude oil, clean products, LNG, LPG, and for support vessels operating in Brazilian Waters, Owners have to request the issuance/renewal of it from their side every year;

-         Carteira de Tripulacao de Seguranca (CTS) – Brazilian Safe Manning Certificate: This certificate is issued by the Harbor Master to the ship after documentation inspection and it stipulates the minimum crew necessary onboard as per the Brazilian legislation and it is applied for all ships over 30 days in Brazilian waters, Owners have to renew it from their side every year;

Therefore, in Brazil and in the world, the Port State Control is the instrument by which the countries of different regions of the world, in an organized, systematic and harmonious way, inspect the vessels that demand their ports, with which they accomplish the purposes proposed by the various conventions embodied in the IMO resolutions and aims to contribute to drastically reduce substandard shipping around the world.

Important Websites Related to the Subject:

- IMO website: https://www.imo.org/Pages/home.aspx

- Vi?a Del Mar Agreement website: https://www.acuerdolatino.int.ar/

-Paris MOU website: https://www.parismou.org/ParisMOU/New+Inspection+Regime/sefault.aspx; www.parismou.org;

- Tokyo-MOU website: https://www.tokyo-mou.org/

- European Maritime Safety Agency- EMSA: https://www.emsa.europa.eu

- DPC: https://www.dpc.mar.mil.br/normam/n_04/N04cap3.pdf;