For the formation of Multimodalism, it is required the figure of an OTM - Multimodal Transport Operator for Export and Import, which have different rules between them.
To better understand, it is valid to explain that there are two types of operators in multimodalism: those who provide services within the national territory and those who do so internationally.
Of the latter, the multimodal formed within Brazil with destination abroad will be called the MULTIMODAL EXPORT and, conversely, the MULTIMODAL IMPORT.
Likewise, there are differences in nomenclature which they call the SOBREESTADIES in the use of containers.
The supremacy of actions for collection of overstates of containers in our courts deals with the collection of DEMURRAGE, that is, cases of multimodalism of IMPORT, because the export operations are facilitated in Brazil and the world, being rare the actions on DETENTION here or abroad.
Multimodal export operations are fully subject to Brazilian Law 9611/98 and must be operated by Multimodal Transport Operators registered in the ANTT (National Land Transport Agency).
This is because their formation and operation are born in Brazil, they travel along national roads and are subject to the Brazilian tax system.
Also for this reason, the registration of the Multimodal Transport Operator is done at ANTT, the agency that regulates Land Transport in Brazil and not at ANTAQ (National Waterway Transport Agency)The company is the regulator of water transportation to whom the maritime modal of import or export is subject while located in port areas bonded.
Such OTM's, as they have their corporate constitutions and carry out their operations with origins abroad, are not subject to Brazilian law as long as they do not operate on Brazilian soil, emphasizing that customs areas - dry or wet ports, border areas and airports - are considered international for tax and logistic purposes.
At the same time, Multimodal Import Transport Operators are subject to and obey the laws of the countries where the freight originates and which, in one way or another, are subject to interventions by international treaties and conventions such as those known as The Hague-Visby, Cogsa and Hamburg, Rotterdam and Antwerp Rules and Conventions.
This concept comes from art. 9 of Decree-law 4.657/42 - Introduction to the rules of Brazilian Law, which dictates .
Art. 9 To qualify and govern the obligations the law of the country in which they are constituted shall apply.
§ Paragraph 1. The obligation to be performed in Brazil and depending on the essential form, it will be observed, the peculiarities of the foreign law regarding the extrinsic requirements of the act being admitted.
§ Paragraph 2 The obligation arising out of the contract shall be deemed to arise at the place where the tenderer resides.
Consequently, all Foreign Shipowners arriving in Brazil are officially authorized to terminate their multimodal operations in Brazilian customs areas.
We manifest that this operator does not submit to the emission of Cargo Knowledge in the national model and is also exempt from registration with ANTT. But in the view of those who work in the area, they could be obliged to register with ANTAQ, which is responsible for regulating water transportation in Brazil.
And here it is worth mentioning that unfortunately such a body has serious problems to regulate any of these operations, even with the constant requests from national users of these services.
This legal situation leads the foreign Shipowners and Logistic Agents to operate freely the Multimodalism that is destined to Brazil, as in fact they do, since by legal determination (Art. 6, Dec.3.411/2000), their operations are compulsorily closed in customs areas.
However, foreign Shipowners and Logistic Agents charge overstates for their containers that have free transit in national territory covered by Law 9.611/98 that says.
Art. 26: It is free to enter and leave the country of a cargo unit and its accessories and equipment, of any nationality, as well as its use in domestic transport.
As every Multimodal Import operation is born abroad and has its end in the customs premises of Brazilian ports (dry or wet), by express legal provision of art. 6 of Dec. 3.411/2000 (regulates Law 9611/96), are not subject to any registration on these operations as OTM, either in ANTT or ANTAQ.
Art. 6 The de-unitization, storage, consolidation and deconsolidation of cargo in the import, as well as the conclusion of the transport operation under the special customs transit regime shall be carried out in a customs area.
Being imperative to the Brazilian maritime carriers (B/L issuers abroad) or foreigners who carry out multimodal transport of import to Brazil to close their operations in the Brazilian port bonded yard, they will not be subject to the operational rules of Multimodalism dictated in Law 9.611/98.
At the moment, the Import OTMs follow an international provision regulated by art. 9 of Decree-law 4.657/42 - Introduction to the norms of Brazilian Law - where it establishes that any transport operation, unimodal, intermodal or multimodal, obeys the legislation of origin when coming from another Sovereign Nation.
ATTENTION: The Multimodal Import Operator, although not registered as OTM in ANTT, has franchised by the first paragraph of the same art. 9 of Decree Law 4.657/42, the management of the obligations occurred in Brazilian territory by the use of CONTÊINER, legitimating the collection of eventual overstays in its uses beyond the term previously adjusted when the freight was hired, so such adjustments should be in the body of the Bill of Lading (B/L) and not be additivated by contracts obtained by coercion when the freight was paid.
What is very clear is that the subject of Multimodalism, as well as the rules and obligations of a Multimodal Transport Operator, whether Export or Import, involve many issues that we will address in future posts here on the Pine Blog.
If you have any questions, please leave them here in the comments field and we will be happy to answer them.