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Intervening in a multi-layered legal dispute that has generated contradictory judicial decisions, the Superior Court of Justice has temporarily reinstated additional ballast water requirements at Brazil’s largest port, suspending ongoing court cases
Background
As detailed in this Circular, in April 2024, the state-owned Santos Port Authority (APS) introduced Regulation NAP.SUMAS.OPR.023.2024, mandating all vessels calling at the Port of Santos to present an additional certificate of compliance with international ballast water management regulations before docking. APS asserts that this measure aims to prevent environmental damage caused by invasive aquatic species and pathogens carried in ballast water, which can harm marine ecosystems and public health. The regulation took effect in August 2024.
Currently, the ballast water certificate of compliance is issued by two private companies accredited by the APS under the terms of the new regulation for a fee ranging between US$ 1,400 and US$ 1,700 per vessel call – the former charged from shipping agents members of the Association of Shipping Agencies and the latter from non-member agents. APS has not indicated acceptance of equivalent class, flag, or recognised organisation documentation. The regulation references remote monitoring systems utilising artificial intelligence and GPS tools to verify compliance -specifically checking that ships discharge ballast water in designated areas or use approved shipboard ballast water treatment systems as required by the Ballast Water Management (BWM) Convention and Brazilian maritime authority’s environmental standards NORMAM-401/DPC, which implement the IMO instrument domestically.
Industry criticism
The regulation faced immediate opposition from the local shipping community, including the Brazilian Association of Cabotage Shipowners (ABAC), and the National Centre for Transatlantic Navigation (Centronave), as well as from the federal regulator, the National Agency of Waterway Transport (ANTAQ). Critics argue that the APS norm is redundant and imposes additional burdens beyond the existing certification standards. International bodies, notably the International Chamber of Shipping (ICS), have deemed it unnecessary and duplicative, conflicting with principles enshrined in the BWM Convention, especially Article 7(2), which provides that a state party shall not require additional surveys or certifications for vessels already compliant with international standards.
Ongoing legal dispute
The APS regulation quickly became contentious, leading to two conflicting judicial proceedings surrounding the same underlying issue:
17th Federal Court of Brasilia: APS vs. ANTAQ
In September 2024, following complaints from the ABAC and Centronave, ANTAQ issued an injunction suspending the APS regulation, questioning APS’ jurisdiction to mandate third-party certifications on matters already covered by the Brazilian Navy in accordance with the BWM Convention. This decision halted the application of the regulation and collection of associated fees, and was unanimously upheld by ANTAQ’s board in December 2024.
In January 2025, APS sought judicial relief against ANTAQ’s administrative ruling before the 17th Federal Court of Brasilia, where the federal agency is headquartered. In February 2025, the Brasilia court preliminarily sided with APS, annulling ANTAQ’s decision and allowing certification requirements to resume. In July 2025, the court issued a writ of mandamus in APS’ favour, reinstating the requirements under the ballast water regulation at the Port of Santos.
1st Federal Court of Santos: ABAC & Centronave x ANTAQ
In February 2025, ABAC and Centronave joined efforts and filed a lawsuit (annulment action). They challenged the legality of the norm at the 1st Federal Court of Santos, where the port authority is established. By July 2025, this lower federal court ruled against APS, rendering the certification requirements invalid due to a jurisdictional infringement, and ordered the refund of collected fees adjusted for inflation. APS appealed the decision, triggering a suspensive effect that allowed the new regulation to remain in force pending review by the Federal Regional Court (TRF), the second instance within the federal court system. APS reported non-compliance in one-third of inspected vessels, citing flaws in existing inspection processes.
Shipowners were advised to continue adhering to APS regulation and continue paying associated fees, with the understanding that if the court ultimately ruled in their favour, they would be reimbursed for all fees collected during the regulation’s enforced period.
STJ Intervention and provisional decision
The conflicting rulings by the federal courts in Brasilia and Santos created significant legal uncertainty for the shipping industry for vessels calling at Brazil’s largest and busiest port. Recognising the implications of this jurisdictional deadlock, APS appealed to the Superior Court of Justice (STJ), Brazil’s highest court for non-constitutional issues, initiating a ‘positive conflict of competence’ (a procedural mechanism to determine which court should hear connected cases.
In a provisional ruling issued in October 2025, the STJ’s rapporteur minister took decisive actions:
- Acknowledged the jurisdictional conflict and the risk of contradictory judgments.
- Granted a preliminary injunction, effectively suspending the processing of the Brasília and Santos cases.
- Assigned the 17th Federal Court of Brasília as the competent jurisdiction for urgent matters arising from these cases, influenced by the Brasília case having been allocated earlier.
It should be noted that the high court order is procedural in nature and does not address the legality or merits of the regulation.
Reinstatement of requirements
In response to the STJ’s provisional ruling, APS issued a press release confirming the reinstatement of its ballast water management norm NAP.SUMAS.OPR.023.2024. According to the port authority, vessels calling at Santos are once again required to present a certificate demonstrating compliance with international ballast water discharge regulations. APS frames the STJ measure as validation of its environmental mandate and the necessity of implementing its local regulations.
Collection of fees and fines
The STJ’s ruling suspended the Santos court’s order for APS to refund previously collected fees, thereby allowing the implementation of new certification fees. Notably, APS has signalled that while certification requirements are reinstated with immediate effect, it announced a grace period for penalties, indicating that no fines will be imposed until further notice to allow stakeholders to adapt to the norm, prioritising compliance over immediate punitive measures.
For masters and ship operators, the practical implications include budgeting for potential -per-call certification charges; ensuring complete documentary evidence is readily available for remote verification – this includes but is not limited to: the International Ballast Water Management Plan Certificate, ballast water record books, ballast water management plan, manufacturer’s certificate of ballast water treatment systems, and the certificate of exemption (CISEN) referred to in Annexe B of the Brazilian maritime authority’s NORMAM-401/DPC, where applicable.
Recommendations
This development remains provisional, pending a final resolution of the jurisdictional conflict by the STJ and, ultimately, a final judgment by the competent court, which could take years. Nevertheless, visiting ships must comply with the additional ballast water certification requirements as enforced by the Santos Port Authority for the foreseeable future.
Until the judicial dispute is resolved, shipowners should gather and retain invoices and correspondence to support potential reimbursement if the regulation is later annulled, and closely monitor developments with regard to enforcement of the penalty for non-compliance, which consists of the vessel being prevented from berthing at the Port of Santos, without prejudice of imposition of other penalties by the maritime authority or the port health authority for violation of ballast water regulations.
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