Importer Awarded Compensation from Port Terminal and Antaq for Delays in Container Unloading

A Brazilian importer has won the right in Federal Court to be compensated for delays in the removal of goods from a container—known as “stripping”—and the subsequent return of the equipment to the vessel operator. The compensation is to be paid by the Salvador Container Terminal (Tecon Salvador) and the National Waterway Transport Agency (Antaq).

The delay in unloading occurred due to a recent strike by federal tax auditors. The port terminal argued that, due to delays in customs clearance caused by the strike, it lacked storage space for the goods awaiting inspection, as the cargo had been flagged for the “gray channel”—a procedure requiring detailed examination, often due to suspected fraud.

Without the container’s return, the shipping line began charging “demurrage”—a fee for the additional use of equipment—at a rate of R$1,200 per day. The total debt reached approximately R$40,000 after the terminal complied with a court order to proceed with unloading.

In a ruling issued following an appeal (motion for clarification) filed by the importer, Judge Carlos D’Avila Teixeira of the 13th Federal Civil Court of Bahia held both the port terminal and Antaq liable for the losses incurred. The judge had not initially addressed this issue.

“In light of Article 37, paragraph 6 of the Federal Constitution, which establishes the objective liability of the State and public service providers for damages caused by their agents, it is legally feasible to recognize the civil liability of Antaq and Tecon, on a pro rata basis, for the damages caused to the petitioner due to the failure to provide an essential service,” the judge wrote.

However, he added that because the case was filed as a writ of mandamus, “immediate enforcement of payment for the additional container usage period is not possible; such claims must be pursued through a separate ordinary civil action, with full respect for adversarial process and legal defense.”

The judge also noted that a container is considered a piece of transport equipment and should not be confused with the cargo it carries. Therefore, it cannot be retained by customs authorities even in the case of irregularities in the imported goods.

He further cited Federal Revenue Ordinance No. 143/2022, which requires that customs terminals provide segregated storage areas for containers holding goods under seizure or retention.

Attorney Carolina Silveira, who represents the importer, noted that many companies were affected by the strike; however, there was no legal barrier preventing the container from being unloaded and returned during the customs process. “After sending an extrajudicial notification, we had to file a writ of mandamus to guarantee the stripping,” she said, adding that Antaq was also named as a defendant for failing to oversee the port terminal lease contract.

According to attorney Bruno Felipe Ferreira, of Finocchio & Ustra Advogados, the ruling is notable due to the parties involved. Typically, lawsuits are filed against the federal government rather than against the port terminal or Antaq for customs clearance delays.

“It was a consistent decision. Demurrage often leads to high costs for the importer and can impact the final price of the product for consumers,” he said, noting that Antaq’s liability may prompt it to consider regulatory changes. “If these rulings become recurrent, Antaq may seek to limit its responsibility or increase that of the port operators.”

Tecon Salvador stated in a note that it will continue to take all appropriate legal measures to defend its interests. “The terminal emphasizes that the legal dispute does not affect the strength of its client relationships, which are based on safety, transparency, service quality, and the fulfillment of contractual obligations,” it said.

Valor Econômico was unable to reach an Antaq representative for comment.

Source: Valor Econômico

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