(MIS) DELIVERY OF CARGO IN BRAZIL
Mr. Fabio Gentil, Esq.
Cargo delivery in Brazil is a duty carried out by the port terminal or the responsible warehouse (official bailees of the cargo) as defined by the Normative Instruction IRS/Customs Authority n. 680/2006, Art. 54 and Art. 55.
The ocean carrier – Vessel Operating Carrier (VOCC) can hold the cargo for unpaid Freight or general average costs, as per Art. 7, Decree-Law n. 116/67, but this procedure can´t be confused with cargo delivery. In Brazil there is no such procedure as a “Delivery Order”.
Non-Vessel Operating Common Carriers (NVOCC) and Freight Forwarders have no powers over the cargo whatsoever.
After the goods are discharged from the vessel or aircraft, they are automatically submitted to the Brazilian Customs authority and put under custody of the terminal or warehouse (which performs a public service).
The terminals or warehouses are bonded areas, which means they are under strict Customs control. The goods cannot move, be returned, delivered, etc without Customs authorization.
Since May 2013, Bills of Lading are no longer required to instruct the Customs clearance procedure, according to the Normative Instruction IRS/Customs Authority n. 1.356/13, which changed Art. 54 of the Normative Instruction IRS/Customs Authority n. 680/06. Such a change has been causing severe problems to sellers doing business with Brazilian companies, because the cargo can be released without the orignal Bills of Lading.
However, according to the Art. 55 of the Normative Instruction IRS/Customs Authority n. 680/06, the bailee (Terminal or Warehouse) has to attend the command of the Article 754 of the Federal Law nr. 10.406/2002 (Brazilian Civil Code):
Art. 754: As mercadorias devem ser entregues ao destinatário, ou a quem apresentar o conhecimento endossado (...)".
Art. 754. The goods must be delivered to the consignee, or the one who presents the endorsed Bills of Lading. (...)". (Free translation)
According to the Normative Instruction IRS/Customs Authority n. 800/07:
"Art. 1. Customs control of arriving and departing vessels, and the movement of cargo and containers in the ports, as well as the delivery of goods by the bailee, will be done according to this Normative Instruction and will be processed through the SISCOMEX-CARGA module in the SISCOMEX program.” (Free Translation)
Sole paragraph: “The information required for the control mentioned above will be provided to the Brazilian Internal Revenue Service (IRS) by the involved parties as defined in this Normative Instruction.” (Free Translation)
Under such command, both the ocean carrier and the freight forwarder must present the cargo manifest (Master and House, respectively) to the IRS (Customs authority), showing all cargo information (including who is the consignee - in the Master and House BL). The name of the consignee is one of those details that must be informed, and through this information (required by law) the involved parties know who is expected to pick up the cargoes at the port or warehouse.
This information is available online to the involved parties, which have access to the IRS cargo control system (SISCOMEX-CARGA), including the Port Terminal or warehouse (bonded area appointed to receive the cargo). Therefore, the importer (consignee) doesn’t need to be informed about the cargo arrival by the ocean carrier or by the freight forwarder. The necessary information for the payment of taxes and imports duties is available online as well.
As a conclusion, Freight Forwarders can´t be hold responsible for misdelivery of goods in Brazil, since such procedure is out of their legal duties. This subject has been extensively discussed in Brazil because of the negative impact in the international market, but so far the legislation remains the same.
Therefore, it is strongly recommendable that foreign companies avoid sales to Brazil guaranteed exclusively by the possession of Bills of Lading. Advance payment or letters of credit are preferable.
Fabio do Carmo Gentil
Maritime Lawyer | Brazilian Bar Association (OAB) n. 208.756
GENTIL ADVOGADOS | Senior Associate