Antaq suspends demurrage charges linked to delays in container returns

Two importers have won an important ruling before the National Waterway Transport Agency (Antaq). The agency’s board of directors ratified an injunction suspending the collection of demurrage — a type of compensation charged for delays in returning containers — in connection with the most recent strike by Brazil’s Federal Revenue Service.

According to specialists, this is the first time in history that Antaq has granted an injunction on this issue. Until the latest strike, which lasted from November 2024 to June of this year, the regulator’s position was different: demurrage for late container return was considered “part of the business risk.”

The tide began to turn in August, when the board issued Ruling No. 521/2025, which states that “events of force majeure or fortuitous circumstances that begin and/or occur during the free-time period for a container suspend the countdown of that period, and therefore there can be no triggering of demurrage charges.”

In the case at hand, because the containers were not returned, the importers were billed demurrage — compensation for the additional time they used the containers. They received an out-of-court notification seeking approximately R$2.1 million in payments.

The importers appealed to Antaq, arguing that during the strike it was impossible to schedule container returns and that the “work-to-rule” action by federal auditors constituted a force majeure event (Case No. 50300.016675/2025-21).

The case was reported by director Flávia Morais Lopes Takafashi. In the injunction granted by her and later confirmed by the board, Antaq accepted the importers’ arguments and suspended collection of the charges. “If protest actions are considered fortuitous or force majeure events and occur before the start of demurrage accrual, they interrupt the free-time countdown, reducing or even eliminating any period subject to billing,” the director stated.

Carlos Ávila, partner at Carneiros Advogados and counsel for the importers, underscored the importance of the precedent. “These charges are absurd. Antaq realized it was no longer feasible to proceed that way. In this Federal Revenue strike, the problem was far more severe,” he said, noting that demurrage charges can exceed the total cost of an import from China, which already involves multiple cost components such as shipping.

He added that the ruling “signals greater balance in the relationship among shipowners, freight forwarders and importers/exporters, helping prevent distortions that were resulting in abusive charges of tens of millions of reais.” According to the firm, at least 30 similar cases are currently pending before Antaq.

Attorney Carolina Silveira said the decision reinforces the view already adopted in Antaq Ruling No. 521/2025, published in August. “The agency determined that the importer was prevented from returning the container within the free-time window due to terminal overcrowding caused by the Federal Revenue strike. Therefore, liability cannot be imposed on the importer for an event outside its control,” she said.

Although Antaq’s injunction could eventually be challenged in court, judges have also been recognizing this legal interpretation, according to Silveira. In one case she handled, the strategy was to hold Antaq and the Salvador Container Terminal (Tecon) liable for demurrage. The ruling was issued by Judge Carlos D’ávila Teixeira of the 13th Federal Civil Court of Bahia, following an appeal (motion for clarification) filed by the importer (Case No. 1009448-32.2025.4.01.3300).

In the judge’s view, the company is entitled to compensation for delays in both stripping cargo from the container and returning the equipment to the vessel operator (the shipowner). “Under Article 37, Paragraph 6 of the Federal Constitution — which establishes strict liability of the State and public-service providers for damages caused by their agents — it is legally viable to recognize the civil liability of Antaq and the terminal operator for the losses suffered by the claimant,” the ruling states.

Antaq is currently conducting conciliation hearings over demurrage charges. In September, the agency prevented R$17 million in improper billing. A total of 60 hearings were held, and 49 ended in agreement — a success rate of 81%. The settlements comply with an August board decision encouraging rapid, harmonized dispute resolution among the parties involved.

Source: Valor Econômico

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