COMMENTS OF THE INTERNATIONAL CHAMBER OF SHIPPING ON THE NEW ADDITIONAL CERTIFICATION REQUIREMENTS FOR COMPLIANCE WITH INTERNATIONAL BALLAST WATER REGULATIONS AT THE PORT OF SANTOS, BRAZIL.

Members are referred to the attached ICS letter to support legal proceedings in Brazil and prepared together by the Marine, Legal and Shipping Policy teams within the secretariat. The letter sets out the ICS position on the requirement imposed by the Santos Port Authority for additional certification to demonstrate compliance with international ballast water regulations at the Port of Santos. The issue has been under discussion within the Shipping Policy Committee since September 2024 but subsequently was thought to have been resolved following information that the requirement for additional certification had been cancelled. ICS has recently been informed, however, that the cancellation has been appealed by the Port of Santos. Accordingly, and in order to lend support for its continuing cancellation/annulment, ICS has prepared the attached letter for submission to the court in the ongoing legal proceedings.

Background

Members are referred to previous SPC circulars (SPC(24)29, SPC(24)31 and SPC(24)39) where it was reported that, on 11 April 2024, the Santos Port Authority had introduced new additional ballast water certification requirements effective from 21 August 2024. Under these requirements, all vessels entering the Port of Santos were required to present an additional certificate affirming adherence to international ballast water regulations. This certificate, to be issued by a private Brazilian firm accredited by the port authority, was subject to a fee, with ships charged between USD 1,390 and USD 1,700 and for a new certificate required each time a ship calls at the port.

Several shipping associations had raised concerns requesting the Santos Port Authority to retract this new rule. As a result, Brazil’s National Agency of Waterway Transport (ANTAQ) suspended this regulation until further investigation could be made. In December 2024, ANTAQ issued a decisive ruling on this matter, officially annulling the Santos Port Authority’s regulation on the grounds of legal non-compliance.

Latest Developments

The Santos Port Authority has now obtained a court decision to overturn the ruling by ANTAQ. Consequently, the requirement for an additional ballast water certificate at the Port of Santos was reinstated on 13 February 2025. ICS understands that ANTAQ has filed an appeal (writ of mandamus) against the court’s decision requesting the annulment of the regulation of the Santos Port Authority.

Next Steps

The Brazilian Association of Cabotage Shipowners (ABAC) and the National Centre for Transatlantic Navigation (CENTRONAVE) have informed the secretariat that they are planning to file an amicus curiae request in the legal proceedings already in course in Brazil between ANTAQ and the Port of Santos, in support of ANTAQ’s application to annul the regulation and have in turn, requested ICS’ support.

The secretariat, after reviewing the additional ballast water certification requirements at the Port of Santos in the light of, and against, the International Ballast Water Management Convention, considers that the approach taken by the Santos Port Authority is unnecessary and does not align with the aims of the Convention, particularly Article 7(2) which in effect provides that vessels must not be subjected to redundant certification procedures when already complying with the international standards. ICS has set out its views in the attached letter, concluding with a request for this requirement in the Port of Santos to be nullified.

The letter has been sent to ABAC and CENTRONAVE for onward transmission to the Court for its consideration when the legal proceedings will take place in Brazil.

Attached at Annex A is the ICS position letter, and at Annex B, detailed information based on which port State control inspections are conducted under the International Ballast Water Management Convention, which have also been provided to ABAC and CENTRONAVE, to further advance the ICS position.

Members will be kept informed of any developments on this matter and are invited to direct any comments or queries on the attached to the undersigned at legal@ics-shipping.org.

MLC(25)08 & SPC(25)15 & MC(25)38 -Annex A – ICS position on APS Normative NAP.SUMAS.OPR.023.2024