The Brazilian Aircraft Carrier Case (2023):
A Legal Study
To understand the facts of the case and read the timeline of events, click here.
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International Conventions and the asbestos present on the ship
According to the International Convention for the Safety of Life at Sea (SOLAS), ships that were built before 2002, July 1th, could contain asbestos, provided they are properly managed, in accordance with MSC/Circ.1045 Guidelines for maintenance and monitoring of materials on board containing asbestos. In 2000, SOLAS was amended to prohibit the installation of some asbestos-containing materials on all ships. In 2009, there was a new amendment, banning any asbestos installations on board all ships.
The Basel Convention, in turn, which deals with the Control of Transboundary Movements of Hazardous Waste and its Deposit, categorizes asbestos (in powder or fiber) as a waste that must have its presence controlled, unlike other categories that require special consideration, such as waste collected from households.
It is important to clarify that both the Hong Kong Convention, of 2009, and the European Union Regulation nº 1257, of 2013, both related to the recycling of ships, require that vessels contain an inventory containing the hazardous materials contained in their structure. According to the 2009 Convention, the inspection must verify that the ship has an International Certificate on Inventory of Potentially Hazardous Materials or an International Certificate of Ready for Recycling, which, if valid, must be accepted.
The European regulation, in turn, requires that:
ships intended to be recycled should minimize the amounts of waste resulting from their operation in the period prior to their entry into a ship recycling facility. If waste resulting from the operation is to be delivered with the ship to a ship recycling facility, its approximate quantities and location must be listed in Part II of the inventory.
Thus, international standards make it clear that asbestos is a hazardous material whose presence on vessels must be controlled by countries, and cannot be freely transported by sea; as well as require that every ship contains an inventory, which includes a list of all hazardous materials on board. It is worth mentioning that the European regulation authorizes ships that already existed before its publication (which is the case of the aircraft carrier) to have their verification carried out by sampling (article 5, item 4), as was the Brazilian aircraft carrier case, and demonstrate the approximate amount of material dangerous (article 5, item 1).
Due to this, the aircraft carrier should have the International Certificate on Inventory of Potentially Hazardous Materials or an International Certificate of Ready for Recycling and. If there weren't neither certificates, or if there was necessity, it should be submitted to a new complete inspection. This inspection and certification is what would allow Brazilian Environment Institute - IBAMA to both authorize the ship's export and the Turkish shipyard to receive it.
Forfeiture X Abandonment of Vessel
According to the Brazilian Navy, in a joint action with the Ministry of Defense and the Attorney General's Office, as soon as the aircraft carrier returned to Brazil, the Brazilian Maritime Authority (AMB) determined that it should remain outside the territorial sea until expertise was carried out on its structure by a Salvage Master company, so that its conditions of stability and buoyancy could be observed.
In this inspection, it was concluded that the vessel had damages that would have to be repaired, so that the AMB demanded that the owner of the hull provide P&I insurance coverage to cover the expenses (docking in the shipyard, eventual removal or unloading), as well as sign a contract with a company to repair damage to the hull. The Turkish shipyard, legal owner of the aircraft carrier, remained inert, generating the possibility of an abandonment of the vessel.
According to Brazilian Law nº 7.542, of 1986, which deals with things or goods sunk, submerged, stranded or lost in jurisdictional waters, the Maritime Authority may order the person in charge of a vessel in these conditions to demolish it, when it poses a risk to the safety of navigation or the environment. The aforementioned law also authorizes the Maritime Authority to assume the demolition operation, at the risk and expense of the person responsible, if they have not provided the appropriate measures within the established period.
In this case, in the terms used by the official note issued by the Brazilian Navy, the aircraft carrier was considered “forfeitured” (in Brazilian Portugese, "perdido", in the sense of lost to the State). According to article 3 of Brazilian Law nº 7.542/86, an asset is considered forfeitured when its person in charge directly declares it to the Maritime Authority, or when it is not known, is absent or does not express its willingness to arrange, immediately, the flotation or recovery of the thing or good, through an assistance and rescue operation. In this case, the Maritime Authority procedes to a seizure of the ship.
If, according to the Brazilian Navy, the owner of the hull did not comply with the determination to provide a shipyard for the necessary repairs, there was, in fact, forfeiture of the asset. According to the note, the Navy feared an “imminent possibility of abandoning the hull at sea”, therefore, seizured the ship.
It should be clarified that the abandonment of a vessel is not a situation expressly covered by the Brazilian legal framework. There are only rules that apply to the situation by extensive interpretation.
Although an abandoned vessel is possibly in some of the circumstances covered by Brazilian Law nº 7.542/86 (sunk, submerged, stranded or lost), abandonment is not necessarily a result of running aground or accident, and a ship can be abandoned without being sunk or submerged (it is even common for ships to be abandoned due to tax and judicial disputes, as was the case of the “São Luís” vessel, which collided with the Rio-Niterói bridge in 2022). In the situation of the aircraft carrier São Paulo, the timeline allows to understand that the vessel suffered a forfeiture process, and was not abandoned.
Is the deliberate sinking of a ship at the sea legally allowed?
As stated above, the Brazilian Navy has legal competence to determine, at the risk and expense of the person responsible, the demolition (and consequent sinking) of a ship that represents a danger to the safety of navigation, to third parties or to the environment, in accordance with article 10 of Brazilian Law nº 7.542, of 1986.
This competence is also supported by NORMAM 10 of the Directorate of Ports and Coasts, section 2.1.3, and by Brazilian Law nº 9.537, of 1997 (known as LESTA), which establishes the competence of the Maritime Authority to seize vessels and take measures concerning safety of navigation and protection of the marine environment.
In addition, the London Convention of 1972, which deals with the Prevention of Marine Pollution by Dumping of Waste and Other Matter, defines as dumping any deliberate sinking, at sea, of vessels, aircraft, platforms or other constructions at sea. As a rule, any jettisoning is prohibited, except, under the terms of Article V:
when it is necessary to secure the safety of human life or of vessels, aircraft, platforms or other man-made structures at sea in cases of force majeure caused by stress of weather, or in any case which constitutes a danger to human life or a real threat to vessels, aircraft, platforms or other man-made structures at sea, if dumping appears to be the only way of averting the threat and if there is every probability that the damage consequent upon such dumping will be less than would otherwise occur. Such dumping shall be so conducted as to minimize the likelihood of damage to human or marine life and shall be reported forthwith to the Organization.
Thus, it can be understood that the Brazilian Navy can promote the deliberate sinking of vessels at sea when it remains proven that they represent a danger to navigation safety, to human life, to the marine environment or to other vessels. According to the 1972 Convention, however, there is a requirement that this sinking shall be carried out in such a way as to cause the least possible damage to human and marine life, which was taken into account by the Brazilian Navy, as explained in an official note.
References
BRASIL. Decreto nº 7.542 de 26 de setembro de 1986. Dispõe sobre a pesquisa, exploração, remoção e demolição de coisas ou bens afundados, submersos, encalhados e perdidos em águas sob jurisdição nacional, em terreno de marinha e seus acrescidos e em terrenos marginais, em decorrência de sinistro, alijamento ou fortuna do mar, e dá outras providências. <https://www.planalto.gov.br/ccivil_03/leis/L7542.htm#:~:text=Disp%C3%B5e%20sobre%20a%20pesquisa%2C%20explora%C3%A7%C3%A3o,mar%2C%20e%20d%C3%A1%20outras%20provid%C3%AAncias>.
BRASIL. Lei nº 9.537 de 11 de dezembro de 1997. Dispõe sobre a segurança do tráfego aquaviário em águas sob jurisdição nacional e dá outras providências. <https://www.planalto.gov.br/ccivil_03/leis/l9537.htm>.
EUROPEAN UNION. Regulation (EU) No 1257/2013 of the European Parliament and of the Council. <https://www.legislation.gov.uk/eur/2013/1257/contents>.
INTERNATIONAL MARITIME ORGANIZATION. Convention on the Prevention of Marine Pollution of Wastes and Other Matter.<https://www.epa.gov/sites/default/files/2015-10/documents/lc1972.pdf>.
INTERNATIONAL MARITIME ORGANIZATION. Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships. <http://www.basel.int/Portals/4/Basel%20Convention/docs/ships/HongKongConvention.pdf>.
INTERNATIONAL MARITIME ORGANIZATION. International Convention for the Safety of Life at Sea (SOLAS). <https://www.ccaimo.mar.mil.br/ccaimo/sites/default/files/solas_indice-2014_2_0.pdf>.
MARINHA DO BRASIL. Nota Oficial. <https://www.marinha.mil.br/sites/default/files/nota_oficial_-_nae_sao_paulo.pdf>.
UNITED NATIONS. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. <https://www.basel.int/Portals/4/Basel%20Convention/docs/text/BaselConventionText-e.pdf>.
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