A foreign company acquired two ships through an auction held in Brazil, and given that these vessels were not in operational conditions, the company had to engage the services of an oceangoing tug for towing both ships from Brazil to India.
When the convoy was close to the Espírito Santo's State, the referred ocean-going tug presented operational problems and on the occasion, one of the ships went adrift. Then, an authorization was requested to the Port Captaincy of Espírito Santo for the convoy to enter the Port of Vitoria in order to make the necessary repairs in the tugboat and the convoy could resume the voyage.
The Port Captaincy did not authorize the entry of the convoy in the territorial sea, and determined that the tugboat repairs were performed in open seas.
The foreign company and the P&I insurer of the ships have been notified of the decision and alerted about the risk of environmental damage and collision of the ships with the oil platforms that operate in the region, in the event the necessary measures were not immediately taken.
Since neither the company nor the insurer purportedly took the required measures, the Federal Government filed an action against the company and insurer, requesting an interlocutory relief in order to determine that the defendants performed the salvage of the hulls, under penalty of a daily fine (Case no.2016.51.01.095021-1 at the 20th Federal Court of the State of Rio de Janeiro). It has also been requested that the right to sink the ship adrift were granted to the Brazilian Navy, in case the measures were not taken within the prescribed period.
The judge of the case, when deciding the suit, understood that the all elements required for the grant of the interlocutory relief requested were present, determining that the measures to eliminate the hazard were taken within 48 hours, under penalty of a daily fine in the amount of R$20,000.00, limited to the maximum amount of R$300,000.00.
However, the court declared that a legal authorization is not applicable in order to proceed with the sinking of the ship sailing adrift, should the required measures were not taken within the prescribed period. Such decision was grounded on articles 10, 11 and §2 of the Law no. 7,542 of 1986, which lays down that the Maritime Authority may take applicable measures, either the removal or sinking, on the account and risk of the responsible party. The court also remarked that the Courts are not incumbent upon assessing which is the most appropriate technical solution for eliminating the hazard, being this matter under the competent jurisdiction of the Brazilian Navy.
After this decision, the defendants failed to take the required measures, and the hull adrift at sea ended up sinking. As a result, the Federal Government amended the initial pleading, including other companies as Defendants in the court proceedings. The court determined the Federal Government to clarify the de facto participation of these other companies in the case at hand, and finally increased the amount of the daily fine and its cap.
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