Abstract: With the advent of the NVOCC (Non Vessel Operator Commun Carrier), Protests against faults sent by consignees may be being forwarded to the Shipowner, the physical carrier of the cargo. This is unsafe as NVOCC's interpose between the exporter and the consignee of the cargo, so importers may be protesting the physical Shipowner, with whom they have no contract of carriage without protesting the NVOCC agent who is, for them, the carrier of their cargo. Such detail may render ineffective the Protest made by the final Consignee against the Carrier of its cargoes, invalidating it as a means of guarantee of reimbursement against damages caused in the transports, in all modals.
Importers may be sending Protests (CCB-Art.754) to Carriers without the legal effects of protection of their cargoes, due to the use of NVOCC's that do not protest Shipowners against cargo damage for which they, as shippers and consignees of the cargo, are responsible.
Art. 750. The liability of the carrier, limited to the value stated in the bill of lading, commences at the moment he or his agents receive the thing; it ends when it is delivered to the consignee, or deposited in court if the consignee cannot be found.
Article 754 - Goods must be delivered to the addressee, or to the person presenting the endorsed bill of lading, and the person receiving them must check them and present any claims he may have, under penalty of forfeiture of rights. Sole Paragraph - In case of partial loss or damage not perceptible at first sight, the consignee retains his action against the carrier, provided he reports the damage within ten days of delivery.
The legal routine refers to the traditional transport, performed since the dawn of civilization by operators of isolated modes (air, sea, land or multimodal), when the shippers and consignees appear in the Bill of Lading issued by the carrier. However, the use of technology has facilitated and deburocratized the use of different modes of transport, allowing even those who, without owning vehicles, can perform a transport operation as if they were physical carriers, which happens when NVOCC agents intermediate the relationship between carrier and end users.
The NVOCC (No Vessel Operator Common Carrier) started in the 1980's, when Full Container vessels replaced the General Cargo ones and WORLDBRIDGE LINE, a company of Pinho Group in Paraná, surprised the market by launching the first NVOCC Line for export cargoes from Brazil to the world. NVOCC's operate by purchasing wholesale spaces in carriers with physical fleet (any modal) to resell them in retail to importers/exporters, earning small profit margins. NVOCC's are clients of the carriers that buy space in those vehicles, per trip, and resell them to their clients. For this, they gather cargoes for transport in a single Bill of Lading, where they appear as shippers of origin and appoint a consignee agent of destination to receive them and make the documentary delivery to the importer, after receiving the freight. This obliges them to maintain correspondents in all ports, airports or even in land transportation yards.
NVOCC's are, therefore, shippers and consignees of the cargo collected by them both at origin and at destination. They transport without own vehicles¹, negotiating spaces in physical carriers - denominated "of line" - in whose Bills of Lading the NVOCC appears as SHIPPER and CONSIGNEE in the Bill of Lading (B/L) issued by the shipowner. This Bill of Lading is then called a MASTER B/L and is assigned one or more sub-Bills of Lading called HOUSE B/L - inseparably linked to the MASTER - containing the names of its customers: the seller and buyer of the cargo.
Seen at first as "middle-men", it did not take long for users to realize their value since NVOCC's are, legally, carriers who use empty spaces in the line vehicles of Carriers WITH vehicles in their business, avoiding losses with empty spaces. Negotiating in wholesale, NVOCC's get good rates in the purchase of spaces with Carriers by the volume of cargo they offer. This optimises operations without selling costs to Carriers that receive cargo from NVOCC's and travel under their primary responsibility. Both operations complement and add competitiveness to the Market with advantages to the Merchant and the Merchant.
Nowadays Carriers recognize the NVOCC as an ally that helps them to send cargoes, under their responsibility, to the destination correspondent that besides paying local taxes, deconsolidates² and makes it available to the Importer after receiving "collect" freights to be sent to origin after retaining their commission. NVOCC's are Merchants, providers of a good and agile service that reduces freights and bureaucracies when negotiating rates with Sea/Air and Land Companies to pass them on to the Merchants. Their profit comes from the volume of freights bought in the wholesale market for resale in the retail market to shippers. The practice is legal, appearing timidly in secular legislation. Updating them would require rewriting routines, a fact that generates fear in the market that "the cherry will compromise the cake", since any new practice will face legislation from the early days of navigation and altering them would bring to light practices not always written, with consequences to the market in general, a field where a comma may interfere in the operation, legislation and even in indemnities.
The legislation requires that loads delivered for transport, in any modal, name the shipper and consignee on the Bill of Lading, nothing prevents these from being interconnected AGENTS, selling spaces acquired from the Carriers and taking responsibility for transporting loads originating from the exporter to the importer. The practice is called NVOCC and "hides" exporter and importer customers from the CARRIER, interposing themselves as shippers and consignees in the Bill of Lading when issued by a Carrier, independent of the modal. The practice prevents the Carrier from meeting the NVOCC's charterers by directly harassing them, protecting the NVOCC's from middle-men. In this operation, the Carrier issues a MASTER BILL - naming one NVOCC at origin as SHIPPER and another as CONSIGNATORY at destination.
The operation allows the NVOCC of origin to act as a Carrier (without ship, aircraft or trucks) vis-à-vis its client, issuing its own B/L Bill of Lading, inseparably linked to the MASTER B/L (where the real shippers and consignees are listed), thus preventing possible unfair competition. The ORIGINALS of the NVOCC Bills of Lading are delivered at origin to the exporter who sends them to the importer directly or through an intermediary bank in the purchase and sale of the cargo. At the destination, the importer, after proving the payment of the merchandise to the rightful owner and of the freight plus the taxes to the NVOCC of destination, receives from them the ORIGINAL HOUSE Bills of Lading, free to be used in the cargo clearance process at the Federal Revenue and other controlling bodies to be, at the end, delivered to the importer.
In this process, in the event of faults/malfunctions, it is up to the NVOCC to PROTEST (art. 754 CCB) the Vessel Owner, making it responsible for the same. If it fails to do so, it assumes responsibility for the fact. The use of the NVOCC prevents the shipowner from knowing the exporters, packers and importers - as the B/L issued will have an NVOCC as shipper and an NVOCC as consignee. Logically the shipowner will only recognise as consignee NVOCC of destination and not the actual shippers.
Then, the RISK for the consignee-client of the NVOCC of destination, who had his cargo damaged by the Carrier, starts. This is because the relation NVOCC/OWNER only produces effect between them, being "res inter allio acta aliis nec nocet nec prodest"³ vis-à-vis the final users, not commercially linked to the shipowner, but to the NVOCC's, the only ones recognized as exporters and importers in this type of shipment.
If only the NVOCC's of origin and destination are recognized as shippers and consignees by the shipowner, they are the ones who must protest to the shipowner for damages in the package/cargo. Otherwise, they will be the responsible ones for damages caused during the transport what is logical, because until then, they are the ones that figure as shippers and consignees before the shipowner, a fact that will last until the NVOCC of destination deconsolidates the cargo, naming the real merchants: exporter and importer. This is only done after the delivery of the cargo to the port, the same port that has annotated the damage against the Carrier in the name of the NVOCC, as the consignee that it is. If the NVOCC of destination, consignee of the cargo, DOES NOT PROTEST for damages against its Carrier, it will assume the risk for eventual damages.
By Law, the Carrier and the NVOCC are obliged to issue reservations between themselves, however, it is up to the NVOCC of DESTINATION, the one that received the damaged cargo, to PROTEST as the Consignee that it is, to the Shipper that caused the damage. This happens even if it is not the final consignee of the transport process, but it is the only one that the CARRIER knows as the shipper and consignee of that cargo. Logically, it will be from the NVOCC that the shipper must receive the PROTEST at destination. If he fails with his obligation he is personally responsible before the CONSIGNEE exempting the shipowner and harming himself, because in case he does not protest the shipowner in HIS NAME he will become the only responsible for the damage to the cargo before the importer, exempting the carrier!
In summary we have that the NVOCC of destination must PROTEST the carrier that received as GOOD the cargo at origin and delivered it damaged. Next, it sends a copy of the PROTEST to the IMPORTER, after the DISCONSOLIDATION. This one, if he wants, can sue the shipowner seeking repair of the damage to the goods.
It should be remembered that the NVOCC, when used, is the only contractor known to the Carrier. If it fails to PROTEST, it will harm the client and may be held liable for its act.
In other modalities where DIRECT Bills of Lading are used, without involving NVOCC's, importers and exporters named as shippers and consignees in the bill of lading, issued by the Carrier, will be the ones who must present the PROTEST LETTER to the carrier, protecting their rights and those of the INSURER, against damages to their cargoes (CCB - Article 754).
This author considers that the current practice of importers who use NVOCCs for the transport of their cargoes, does not characterise PROTESTS sent by CONSIGNIARIES to the SHIPPERS, as they are THIRD PARTIES in the freight contract signed between NVOCCs and SHIPPERS, allowing the application of the Latin maxim: "res inter allio acta aliis nec nocet nec prodest".
This study ends by alerting Carriers, NVOCC's, Importers, Exporters and transport users to another interesting fact. The legislation does not require any model text or means of sending PROTESTS against carriers. Therefore, they can be made, either by registered letter or by email using an application that not only sends the Protest to the Carrier, but also receives confirmation that it was delivered within 10 days of arrival of the cargo at destination. There is no obligation that the protest be read, but only the confirmation of delivery to the addressee.
The purpose of this paper is to serve as an alert to NVOCC's of their responsibilities towards their customers' cargo and their own actions in the event of a damage without a valid protest. The current practice of issuing several protests is not correct. Besides wasting time and money, all these protests will be discarded for lack of objectivity against the real cause of the damage.