With the significant growth in container movement at Brazilian ports in recent years, there has also been an increase in cases of demurrage charges and complaints to ANTAQ (National Waterway Transportation Agency) about abusive charges.

Demurrage, or demurrage, is one of the most debated maritime law issues in the judiciary, which has clarified in its rulings that: "The container is not to be confused with the goods transported within it and cannot serve as mere packaging for them. The container consists of a transport unit, used within the carrier's logistics and commercial chain. Therefore, after the end of the maritime transport, the consignee of the goods has a period of time, called 'fee-time,' to de-unitize the container and return it to the maritime carrier. If this period exceeds without the container being returned to the carrier, the latter will be entitled to a daily demurrage fee from the consignee. This charge is contractually based and constitutes pre-established compensation due to the retention of the container for a period exceeding the 'free-time' period" (TJSP, Appeal 1034478-24.2016.8.26.0562, Rapporteur Judge Itamar Gaino, 21st Private Law Chamber, j. 12/18/2017).

Due to its nature, demurrage fees are not subject to government control. Until last year, when ANTAQ Resolution 112/2024 was published, there were many disputes regarding the criteria for identifying the agent responsible for additional cargo storage at port facilities. Resolution 112, of March 2024, approved a non-exhaustive risk matrix to be used in the investigation of specific cases aimed at identifying the agent responsible for additional storage and the resulting services and costs at port facilities, considering the risk inherent to the agent's activity.

Regarding the aforementioned risk matrix, ANTAQ approved, on July 31, 2025, a regulatory understanding in which premises were defined that will guide when the demurrage charge should be made:

1. Demurrage should only be claimed when the use of containers for a period longer than the free stay period occurs: in the interest, by choice, or due to the fault of the users, or when the event causing the delay is at the risk of the users' business;
2. Demurrage is only justified in cases where the stay beyond the free stay period (free time) is due to the interest, voluntary choice, or responsibility of the users, or when the cause of the delay is related to risks assumed by them due to their own business;

• No demurrage may be claimed when the container downtime is related to: an act or omission of the carrier or those working for it, the logistics mobilized by the maritime carrier to provide the service, or when the event causing the delay is at the risk of the carrier's business, the empty container depot, or the port terminal;

1. Demurrage is not owed in cases where the non-return of containers to logistics is due to actions or omissions attributable to the carrier or its agents, the logistics structure adopted by the maritime carrier itself for the provision of the service, or when the event that caused the stoppage falls within the operational risks of the carrier, the port terminal or the empty container depot.

This office expects that, based on this ANTAQ Understanding, disputes over demurrage charges will decrease considerably in the Judiciary.