Brazil: Regulatory gap on ship-to-ship transfers filled

Ship-to-ship (STS) transfers in Brazil have not previously been regulated, but from December 1st 2021 the National Waterway Transport Agency (ANTAQ)’s Resolution 59 (October 28th 2021) will govern such operations. Proinde, UK P&I Club’s Brazilian Correspondents, said that ANTAQ regulated for the first time the transhipment and transfer of liquid bulks between ships.

ANTAQ said that there was a need to regulate the matter. Until now, neither the federal agency nor other regulatory bodies closely followed STS transfers offshore Brazil. Because of this the number of operations in recent years was uncertain due to a lack of monitoring.

The tendency was for STS operations to increase substantially in the face of new deepwater discoveries and offshore auctions, as well as technological improvements.

Instead of introducing strict rules and interfering with a fast-developing market while bringing legal certainty, ANTAQ decided instead to define the applicable modalities and regimes, set general guidelines, and require shipping companies to report their STS activities.

ANTAQ Resolution 59/2021 provides the following main definitions for clearances and permissions:

  • Ship-to-Ship (STS) Operation: consists of the transhipment or transfer of oil and oil products, natural gas, and biofuels between vessels located in Brazilian jurisdictional waters, without the use of pipelines, shore tanks, or waterway terminal pumps ashore. When the transferred cargo originates or is destined for floating facilities subject to registration with ANTAQ as supporting facilities for waterway transport, it will not constitute an STS operation. Likewise, offshore delivery of fuels and lubricants (bunkers) to ships will not fall within the definition.
  • STS support activities: are those carried out by maritime support ships (when operating in an unsheltered area) or port support ships (in a sheltered area) that do not carry cargo.
  • Transhipment area: is the georeferenced region in which the maritime authority allows STS operations to take place. STS operations are allowed with vessels moored or anchored in a sheltered area, moving in a place where it is impossible to drop anchor, or in a mixed process, in which the approach and mooring are made with the vessels in motion and the cargo transfer with one of them at anchor.

Although the federal regulatory agency has not imposed an obligation of prior authorisation for STS operations, under the new Resolution, the so-called Empresa Brasileira de Navegação – EBN (Brazilian Shipping Company), which carries out such operations, even with chartered ships, is required to submit reports to ANTAQ on the monthly throughput and the length of stay of the vessel in the same transhipment area.

Activities to be reported include offloading onto fixed or floating platforms, including drilling rigs, cargoes originating from or destined for floating storage units (FSU), floating storage and regasification units (FSRU) connected to shore terminals, or in tankers.

Failure to comply with the reporting requirements outlined in the Resolution will be an infraction that could lead to administrative sanctions by the regulatory agency, without prejudice to further penalties within the jurisdiction of other authorities.

Under the existing laws and regulations, ships and platforms operating in Brazilian waters have the duty to report maritime casualties and incidents, especially if they involve personal injury or potential environmental damage.