BRAZIL Trends and Developments Contributed by: Livia Sancio and Alice Studart, Salomão Advogados
with debates spanning more than two decades and expected to remain prominent throughout 2026. In Brazil, port operators charge ship-owners a bundle of services (the so-called “box rate”) for loading and discharging vessels, covering vertical and horizontal container movements up to their placement in the yard. These costs are passed on to cargo interests through the Terminal Handling Charge (THC), which is charged together with freight. Following discharge, cargo may be stored within the container terminal itself (“wet ports”), which provides bonded storage until delivery to the importer, or trans - ferred to retroport terminals (also referred to as “dry ports”). The SSE emerged as an additional charge intended to reimburse terminals for specific costs incurred in segregating and delivering containers to retroport ter - minals within certain logistics flows. The SSE charge was expressly regulated by ANTAQ Resolution No. 72/2022, which governs container handling and storage services at port facilities and expressly authorises the separate charging of SSE (or “THC2”) in addition to the traditional THC. Nevertheless, the legality of this charge has generated intense debate. In 2022, the Federal Court of Accounts (TCU) ordered the suspension of SSE charges, con - sidering them anti-competitive due to their potential to distort competition between wet and dry ports, and recommended greater regulatory clarity from ANTAQ, the federal regulatory agency responsible for oversee - ing the waterway transportation sector. In 2024, upon review, the TCU reiterated the potential risk of double charging through THC and SSE, although its technical staff concluded that the SSE charge was justified and highlighted the adverse effects of a blanket prohibi - tion. The issue was subsequently brought before Brazil’s superior courts. In September 2024, the First Panel of the Superior Court of Justice (STJ), ruling on Special Appeals Nos. 1,899,040 and 1,906,785, held by majority that the
charging of SSE by port operators in relation to retro - port terminals could constitute an abuse of dominant position in the form of price squeeze, in violation of Brazil’s Competition Law (Law No. 12,529/2011). The decision is not final and remains subject to appeal. In October 2025, however, Justice Dias Toffoli of the Supreme Federal Court (STF), when analysing a writ of mandamus filed by the Brazilian Association of Con - tainer Terminals (ABRATEC), held that the TCU had exceeded its authority by prohibiting a charge regulat - ed by ANTAQ. The ruling restored the effectiveness of Resolution No. 72/2022 and authorised the continued charging of SSE under ANTAQ’s regulatory oversight. These decisions highlight the divergence of interpre - tations among regulatory, administrative and judicial bodies, leaving the controversy unresolved and rein - forcing the importance of legal certainty and regula - tory clarity regarding SSE charges in 2026. ANTAQ Decision No. 521/2025 – Demurrage Limitations and Cargo Retention In addition to SSE, another closely related issue that has attracted significant attention concerns demur - rage, the charge for container use beyond the agreed free time. In August 2025, ANTAQ issued Decision No. 521/2025, setting out a revised regulatory approach to demur - rage charges. Under this framework, demurrage is only considered legitimate where: (i) the delay in returning the container results from the user’s interest, choice, fault or business risk; and (ii) the overstay does not result from operational failures or omissions attrib - utable to the carrier, the port terminal or the empty container depot. This approach departs from the traditional maxim “once on demurrage, always on demurrage”, as demurrage accrual must be suspended from the first unsuccessful attempt to return the container where the delay is not attributable to the user. The decision also reinforces transparency obligations on intermediaries when passing demurrage charges on to users and recognises that cargo retention as a coercive measure is permissible only in limited circum -
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