New Law No. 14,813 Regulates Pilotage Services
On January 16, 2024, Law No. 14,813 (“Law 14,813”) was published, aiming to provide legal certainty and regulatory stability to pilotage services. Law 14.813 amends Law No. 9.537/97 (“Law 9,537”), which provides for the safety of waterway traffic in waters under national jurisdiction, as well as Law No. 10,233/01 (“Law 10,233”), which created the National Waterway Transport Agency (Agência Nacional de Transportes Aquaviários, “ANTAQ”).
Pilotage is the service of guiding vessels when entering and leaving ports, both when navigating the access channel and when docking and undocking. The use of pilotage services is mandatory in Brazil, except in specific circumstances.
One of Law 14,813’s main innovations was to establish that the price of the service must be freely negotiated between service providers and service users. In the past, a national rate for pilotage matters had been set by decree, which established maximum prices for pilots, before being eliminated in 2019.
In accordance with the new Law 14.813, the Maritime Authority will only be responsible for defining the price of the service if requested to do so, in special, extraordinary circumstances, to be observed for a period not exceeding 12 months. These definitions are reserved for cases of proven abuse of economic power or discrepancies in value . However, Law 14,813 mentions that price regulation must respect free negotiation and may observe annual monetary adjustments, prices common in each pilotage area, contracts in place, and timing and quality of the service.
The Maritime Authority will form and chair an advisory committee to assist in evaluating price regulation. The commission will consist of members of the Maritime Authority, the representatives of the entity providing pilotage services, the shipowner receiving pilotage services and ANTAQ, and its opinion must be issued within 45 days from the formation of the commission.
Law 14,813 now expressly provides that the cost of the service shall include the pilotage operation, the pilot's boat, and the watchtower. The law also tasks pilots with the implementation and maintenance of necessary infrastructure, as well as for the training of the pilots and employees and permanent operation of the structure.
Law 14,813 also establishes that the pilotage service rotates between the pilots assigned to each pilotage zone, so that the selection of pilots is not at the discretion of the shipowners. Rotational operation was already provided for in other Maritime Authority regulations.
Additionally, the new legislation provided that the Maritime Authority may grant a Pilotage Exemption Certificate exclusively to Brazilian captains of Brazilian-flagged ships that are up to 100 meters long, and whose crew is at least two-thirds Brazilian, as long as other legal requirements are met. This Certificate will enable holders to enter and exit port areas within a pilotage zone without engaging pilots. However, a Pilotage Exemption Certificate does not exempt payment for pilotage services, except in cases of specific regulation to be made by the Maritime Authority, or for Brazilian vessels that operate regionally in inland navigation.
The law also amended the required maintenance of pilots' qualifications. Qualification will no longer depend solely on observing the minimum frequency of maneuvers, but also on completion of improvement courses, as well as compliance with rulings from competent international organizations recognized by the Maritime Authority.
