WHIPPING BOY - No, THIS IS NOT KINKY!

In times past, a whipping boy would take the punishment a prince deserved for his misbehaviour.

This is not unlike, for example and in a more modern version, the burden suffered by Brazilian shipping agents, who, due to the ways of local authorities, can oftentimes find themselves facing administrative proceedings, fines and related discomforts, for infractions caused by owners of the vessels they assist and to which they have had absolutely no way of participating, whether through action or inaction.

Although more often than not, Owners step in and (usually through local Correspondents of their respective P&I Clubs) do whatever can be done to relieve the agony, there are times when agents find themselves alone and facing considerable fines which can even result in them closing shop. Not always do agents have a direct contact with the vessel Owners as, in some cases, their services are contracted by the charterers.

Among the various authorities who have a duty to ensure that sailing is kept safe, clean and honest we have: customs, immigration, port health and the port captaincy, all of which, in one way or another and at one time or another can, must and shall fine a vessel for this or that infraction. Said fine, as mentioned above, is, unfortunately, addressed to whosoever the respective authority believes to be the vessel’s agents (irrespective of whether appointed by charterers or owners).

The on going struggle fought by agents against the unfairness of finding themselves being whipped for another person’s mischief is slowly but surely resulting in some cracks in the resistance opposed by the authorities who, naturally, prefer to list local agents as defendants because they are domiciled in Brazil and are easier pray to enforcement procedures, if need be.

Just recently (29th July 2011) the Brazilian Navy, through the offices of their Department of Ports and Coastlines (DPC), to whom are subordinated all the Port Captain Offices spread throughout Brazil, answered favourably to a consultation made to them by the National Federation of Shipping Agents (FENAMAR) stating that they have given an order to all the Port Captain Offices that they should refrain from listing agents as defendants in respect of infractions committed by the vessel’s they attend.

As a result of this order a new directive shall soon be issued whereby the Port Captain Offices shall be instructed to list Owners, Managers or the Masters of the vessels as defendants. If it is not possible to serve notice of the infraction directly on the infractor it shall be formally delivered to the agents, who shall then have to, within a reasonable period of time, provide evidence that they have delivered the notice to the respective and legitimate party.

Just therein lays the logistical hitch which, in my opinion, could make this most reasonable directive slightly difficult to put into practice. As mentioned previously, not every agent shall know exactly who to contact with Owners in order to make sure the right person gets a copy of the notice of infraction – which shall be, obviously, in Portuguese and shall have, one may assume, a clock on it, ticking away the time bar. Fifteen days for a safety infraction (for example: over loading, under manning, deviation, ballast pump out) and twenty days for a spill (environmental pollution).

Bearing in mind that unpaid fines are listed with the Internal Revenue Service and sent along to the Federal Public Attorney for enforcement procedures, it shall be interesting to see how authorities plan to fill in the little squares that have to be filled in with certain numbers (contributor roll number) that only Brazilian companies have.

The mind boggles as to what could be the consequences were unpaid fines to become enforceable and arrest proceedings filed against Owners by the Federal Public Attorney Offices. Their personnel have so much already on their desks, that it is foreseeable, if such a distant hypothesis were to happen, that a considerable amount of headache would be had in order to free a vessel from their grips. And it is doubtful that a Club Letter would do the trick!

As mentioned above, the DPC are still studying how they intend to put the directive into practice and we shall be keeping an eye on developments, in order to report accordingly.

RDC 72/2009 - ANVISA

Agents for ports of the state of Rio de Janeiro have been informed by the local branch of the Port Health Authority – ANVISA, that, as from the 20th of June 2011, they expect to receive, together with the usual relevant and pertinent documentation required for free pratique purposes, spreadsheets referent to the maintenance and cleanliness of the air conditioning system and an Air Quality Report which is to be issued every six months, based on an evaluation following parameters established in a Technical Directive number RE 09, dated 16th of January 2003.

The above requirement, according to ANVISA – RIO, is in accordance with an order received from their “coordination”; seeks to enhance health and safety at the ports under Sanitary Control in the state of Rio de Janeiro and is in line with article 61 of directive RDC 72 issued in December 2009.


Loosely translated said article states as follows:

"Art. 61. Spreadsheets referent to the maintenance, operation, cleanliness and disinfection of the acclimatization equipment, as well as the result sheets for air quality must be presented to the competent Sanitary Authority, upon request.

Single paragraph. The quality of artificially acclimatized air by means of systems with a capacity of refrigeration the same or superior to 5 TR´s (60.000 BTU´s), must be evaluated every semester and attend to the physical, chemical and biological parameters, as defined in the RE no. 09, of the 16th of January of 2003.

Naturally, as above requirement is not exactly based on any International Convention, most, if not all ships visiting any of the ports of the state of Rio de Janeiro do not have the required “spreadsheets” or air quality reports (issued every semester) demonstrating that the conditioned air breathed on board foreign flagged vessels complies with Brazilian standards.

In the absence of said documents, local PHA accept that the vessel should be visited by a listed air quality control company who, probing in appropriate spaces and charging around USD1500,00, issue a certificate in ten days. Fortunately the vessel is allowed to sail before the certificate is ready.

International Health Regulation 2005, (to which Brazil is party), does not list Air Conditioning Maintenance Records amongst the health documents provided for under said Regulations and neither, it would seem, can they be found specifically mentioned in any IMO or ILO convention to which Brazil is signatory, yet, none the less, ANVISA included, in RDC 72/2009 (which seeks to incorporate relevant IHR 2005 procedures into local legislation), the above mentioned article 61.

Attachment XIII to RDC 72/2009 is a check list with items that may be looked into by visiting Port Health Authorities. In relation to air-conditioning, the list contains the following instruction:

“Air conditioning equipment must be kept in a good maintenance, control, operational and clean condition. Substitution of filters must be done as per manufacturers instructions or every six months. No objects are to be kept in the AC unit. External air intake must be protected. Air quality tests are to be done every six months (for systems over 60.000BTU) and kept within parameters established in RE 09/2003. The reports are to be available for perusal by the Health Authority.

Maintenance, operation, cleanliness and disinfection of the air conditioning system are to be recorded on spreadsheets and also available for perusal”.

Whereas it is probably not too difficult to keep a record of air conditioning maintenance, the ANVISA resolution RE 09/2003 points to parameters (established by the Brazilian Ministry of Health) that are not known to the international community, which makes compliance a rather complicated exercise for non Brazilian vessels.

Thus, unless some form of collective action is taken against the implementation of article 61 of RDC72/2009, the solution shall be to either pay for the services of an air tester in order to be able to produce the required report/certificate or face the consequences. RDC72/2009 states that non compliance shall subject the vessel to a fine – value unknown. Possible delay to the vessel and fighting the fine shall, one would expect, be more expensive than to just have an ANVISA listed company test the air and issue the required document. Local agents, no doubt, shall be able to procure the services of such a company.