The Lack of Regulation for NVOCC Activities

Among all the modes of transport that make up the logistics chain of international trade, maritime transport is undoubtedly the most widely used around the world. It is the most suitable mode for transporting large quantities of goods of low to medium added value. In general, it is the carrier a legal or natural person, duly established and registered to carry out maritime transport activities who is responsible for transporting all types of cargo from one port to another, being legally liable for any damage or loss from the moment the cargo is received for shipment.

It is worth noting that the carrier does not necessarily need to own the vessel being operated. Vessels may be chartered from third parties, whether on a voyage charter, time charter, or bareboat charter basis, to make up the carrier’s fleet. When discussing maritime transport, foreign trade, and physical distribution of goods, it is essential to mention the external agents and the instruments that formalize the act of transporting goods. Among the various agents involved in this logistics segment, two important business legal entities deserve attention: the NVOCC – Non-Vessel Operating Common Carrier, and the freight forwarder (also known as forwarding agent).

The freight forwarder is a natural or legal person that arranges maritime transport services on behalf of third parties and generally acts on behalf and under the order of the shipper. However, it is important to note that the freight forwarder may also act as the principal carrier, provided that this is explicitly stated in the service contract and allowed under applicable legal provisions.

In Brazil, the freight forwarder operates on behalf of third parties, i.e., the shipper, and may also act as a customs broker, under the terms of Decree No. 646/92. The concept behind the NVOCC is similar to that of the multimodal transport operator (OTM), in that it performs transportation without owning the necessary vehicles. The difference is that the OTM operates across multiple modes, issuing a single transport document and taking responsibility for the cargo from origin to destination, whereas the NVOCC is limited to the maritime leg of the transport chain.

An NVOCC is a maritime carrier, not a vessel operator or owner (not a shipowner), and issues its own bill of lading. It typically serves shippers with smaller, consolidated cargo volumes that would not fill a container on their own. This is known in the market as cargo consolidation. The NVOCC is essentially a virtual shipowner, offering to perform maritime transport services using traditional carriers’ vessels, while assuming contractual responsibility to the cargo owners, as a regular carrier would.

In the United States, the NVOCC legal concept was established by the Shipping Act No. 4 of 1984, which regulated maritime trade between the U.S. East Coast and Latin America. At the time, the U.S. sought to facilitate small businesses’ access to export markets in Latin America and South America. In Brazil, the first known shipment by an NVOCC occurred in 1986, aboard a vessel operated by the now-defunct Lloyd Brasileiro. Difficulties in customs clearance at the time led to the beginning of legal recognition of the NVOCC figure in Brazil by the also defunct SUNAMAM.

However, despite the consolidation of the NVOCC segment, its relevance, and the exponential growth of foreign trade in Brazil, there is still no comprehensive regulation governing NVOCC activities. The only existing norm is SUNAMAM Resolution No. 9,068, published in March 1986, which recognizes the existence of the NVOCC figure. This lack of regulation appears increasingly contradictory, especially when comparing the NVOCC with traditional carriers and Brazilian shipping companies—both of which are regulated and supervised by the National Agency for Waterway Transportation (ANTAQ).

These regulated entities are subject to numerous economic, technical, and fiscal requirements imposed by ANTAQ, without which they cannot be granted authorization to operate legally. Yet, Law No. 10,233 of June 5, 2001, which established ANTAQ, makes no mention of the NVOCC figure. Currently, ANTAQ’s regulatory scope regarding NVOCCs is limited to registering them and their deconsolidation agents for import operations only. For exports, no such registration is even required.

It must be emphasized that the intention is not to overregulate, burden, or hinder the development of NVOCC operations or the maritime sector as a whole. On the contrary, the discussion focuses on the need for at least a basic regulatory framework which, in this case, would be preferable to none. The goal is to clearly define the obligations and responsibilities of market participants, as clear regulatory frameworks are essential for sustainable growth and legal certainty in the maritime and logistics sectors.