Regulatory interpretation of container charges

The federal waterway transport agency (ANTAQ) has approved a new interpretative stance regarding the regulation governing container demurrage and detention charges

Background

Long-standing controversy

The issue of container demurrage and detention charges has long been a contentious point within civil courts and the regulator, the Federal Waterway Transport Agency (ANTAQ). The core of the dispute is whether carriers can legitimately impose charges on consignees for exceeding free time for container pickup and return to carriers, and under what conditions such charges are considered lawful.

Historically, some courts have regarded excessive or unjustifiable demurrage as an abusive commercial practice. While the legal doctrine considers demurrage as a consequence of contractual delay, it emphasises that charges must be proportionate, justified, and compliant with consumer protection regulations and industry standards.

Complaints from cargo owners

Despite the issuance of ANTAQ Resolution Nº 62 of 2021, as amended, which aims to standardise and regulate container charges practices, the federal agency has been receiving persistent complaints from non-vessel operating common carrier (NVOCC) agents and consignees alleging abusive or unsubstantiated container charges.

Regulatory understanding

Review of regulation

Following a comprehensive assessment of the sector’s operational landscape and the implications of container demurrage and detention charges, ANTAQ initiated an administrative review process to interpret the scope of existing regulations and clarify multiple interpretative points.

Key regulatory points

Taking a more restrictive interpretation of the norm – and seeking to promote greater transparency and a more balanced approach to the application of container charges, on 31 July 2025, ANTAQ ‘s board issued a detailed regulatory interpretation concerning the scope and application of Resolution 62/2021 and relevant legislation. The primary interpretations include:

• Incidence of demurrage: demurrage should only apply when the extended use of containers beyond the free time allowed by the carrier results from the user’s interest, choice, or fault, or when the causative event is at the user’s business risk. At the same time, it should not apply when delays are caused by the carrier’s action, omission, or chosen logistics solutions, or issues attributed to the carrier’s designated depots or port terminals.
• Suspension of demurrage counting: the counting of demurrage must be halted when delays are caused by third parties, even if it has already started, from the date the user demonstrates an unsuccessful attempt to return or deliver the container until conditions allow receipt.
• Force majeure and act of God: unforeseeable, unpreventable and uncontrollable natural and human-made events suspend the free time, thereby precluding demurrage charges.
• Depot unavailability: if the carrier-designated depot fails to receive empty containers, resulting in significant losses to the user, ANTAQ may initiate a sanctioning process against the carrier.
• Cargo retention rules: withholding imported cargoes is only legal when related to unpaid freight debts or outstanding general average guarantee or contribution, in accordance with Resolution 62/2021 and relevant civil legislation.
• Service refusal restrictions: refusal to accept new shipments due to outstanding debts is not applicable to contracts where the transport service has already commenced.
• NVOCC agent liability: companies operating in Brazil as agents for foreign NVOCCs are subject to the provisions of ANTAQ Resolution 62/2021 as ‘intermediary agents’.
• Mandatory disclosure: intermediary agents are required to disclose the actual demurrage fees charged by the carrier.

Focus on conflict resolution

Recognising the legitimacy of demurrage and detention charges, ANTAQ seeks to curb abusive charges by establishing a streamlined dispute resolution mechanism. This involves a summary administrative procedure for resolving conflicts, promoting settlement and conciliation, with a temporary 120-day suspension of penalties for demurrage to facilitate dispute resolution.

Regulatory risks

The revised interpretative approach taken by ANTAQ may heighten regulatory and legal risks for carriers and intermediary agents, potentially increasing the likelihood of administrative and judicial scrutiny of container charges.

Accordingly, carriers must review and enhance their internal controls by implementing stringent processes to track and archive documentary evidence – covering container pickup and delivery logs, proof of delivery and receipt at depots or port terminals, records of any damages upon interchange and return or delivery attempts – to ensure compliance with clarified regulatory standards.

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