The development of the petroleum and natural gas industry in Brazil also made possible the expansion of the local maritime industry. The end of Petrobras' monopoly and the promotion of bid rounds by the Brazilian National Petroleum Agency (ANP) for the concession of exploration areas, as well as the new discoveries of oil and natural gas in the country, turned out to be essential factors in the development of the Brazilian maritime industry.

Consequently, the field of Maritime Law is achieving a more prominent status, as there is a great demand for specialized professionals capable of analyzing different types of agreements involving vessels used in activities of exploitation and production of oil and natural gas. In addition, specialized knowledge is also required in relation to the different regulatory aspects of Maritime Law and navigation.

In order to properly perform their activities, concessionaries and other companies operating in the E&P industry need to understand the applicable regulatory aspects and constantly interact with the competent authorities, such as the National Agency of Maritime Transports ("ANTAQ") and the Department of Ports and Shores ("DPC").

The main types of navigation activities are defined by Federal Law 9,432/1997 (the "Petroleum Law"): (i) navigation of port support (held exclusively in ports or sea terminals in attendance of vessels and port installations), (ii) navigation of maritime support (logistic support for vessels and installations, assisting in the activities involving research and production of minerals and hydrocarbons, in national waters and in the maritime exploration zone), (iii) cabotage navigation (held between ports or specified places in the Brazilian territory, making use of the maritime course or internal navigable courses), and (iv) navigation of long course (held between Brazilian and foreign ports).

It is important to note that the navigation of maritime support, port support and cabotage navigation must be performed by Brazilian navigation companies ("BNC"), making use of vessels with Brazilian flag, as set forth in the Petroleum Law. This requirement has the purpose of preserving the local market. Notwithstanding, foreign vessels are allowed able to perform such navigation by a charter contract with a BNC, as long as there are no local vessel with the required capacity. The approval process for the use of a foreign vessel performed before the ANTAQ is defined as circularization.

With respect to the transportation of oil, in accordance with the Brazilian Federal Constitution, only BNC duly authorized by the ANTAQ and the ANP are qualified to perform this type of activity. Concerning the navigation of long course, BNC are allowed to make use of foreign vessel without the prior approval of the ANTAQ and the procedure of circularization above mentioned.

The development of maritime activities is normally structured through the execution of charter contracts, as follows:

  • Bareboat Charter Agreement – Shipowner delivers a vessel, which is not equipped or managed, to the charterer for a specified remuneration. The charterer shall equip and prepare the vessel, putting it in condition to navigate.
  • Timecharter Agreement – The vessel is delivered to the charterer by the shipowner duly equipped and managed, for a specific period.
  • Voyage Charter – Charter of a vessel to perform the transportation of goods in one or more trips.

Considering that the E&P industry is relatively recent in the country, many regulatory issues are still being resolved, which requires an accurate analysis by the competent authorities and professionals with a multidisciplinary view, taking into account the particularities of each situation.

In this sense, an encompassing understanding of several legal issues becomes extremely relevant, as the viability of an E&P project requires the creation of appropriate and complex contractual structures. From now on, this scenario is likely to intensify, since an unprecedented expansion of E&P activities is expected as a result of exploitation and production of recently discovered pre-salt reserves along the Brazilian coast.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.