The Brazilian Maritime Court: Competence and Legal Nature of its Decisions
Note: This work is a part of my article "A Competência do Tribunal Marítimo para Julgar Danos Ambientais na Condição de Fatos e Acidentes da Navegação, à Luz da Lei nº 2.180/54", published in the Brazilian book "Direito do Mar: Reflexões, Tendências e Perspectivas", in 2020. The work is originally written in Brazilian Portuguese. If you are interested in reading it, you can buy the book here.
The Brazilian Maritime Court is ruled by Law nº 2.180, of 1954, and has jurisdiction throughout the national territory. It is important to explain that the Brazilian Maritime Court has administrative, not judicial, origins. According to article 1 of its organic law, it can be stated that it is an autonomous body linked to the Navy Command, part of the Ministry of Defense. This autonomy is what allows its judgments to be impartial, despite its administrative nature being evident, since it is part of the scope of the Executive Branch.
The law, however, makes it clear that its function is to assist the Judiciary, with its duties being “judging accidents and facts of maritime, river and lake navigation, as well as issues related to such activity”, according to article 1, so that there is a clear judicial direction for its jurisdiction. Therefore, it is up to the Brazilian Maritime Court to judge administrative cases, whose decisions are technical-legal, despite being subject to re-examination – any dispute in Brazil can be taken to the Judiciary for final analysis, a fact that is expressed in article 18 of Law nº 2.180, in verbis:
Art. 18. The decisions of the Maritime Court regarding technical matters relating to accidents and facts of navigation have probative value and are presumed correct, however, they are susceptible to re-examination by the Judiciary. (Wording given by Law nº 9.578, of 1997)
However, when exercising the position of judge, the Brazilian Maritime Court is imbued with a judgmental character. Even though Law nº 2.180/54 itself, in line with the principles of the Brazilian Civil Procedure, allows the Judiciary to re-examine decisions made by the Maritime Court, its decision-making process respects due legal process, the adversarial process and broad defense, so that the legal nature of its decisions is “anomalous jurisdictional” and not purely administrative, as it is an expressly autonomous and, therefore, impartial body.
Such a situation, according to Daniel Neves (2018, p. 58-60) and Mônica Júdice (2014, p. 59), is possible, given that the jurisdictional function is not restricted to the Judiciary, and can be exercised by administrative bodies. In the words of Eliane M. Octaviano Martins (2015, p. 281), “the Maritime Court is an administrative judicial body with quasi-jurisdictional competence, with anomalous jurisdiction”. For Matusalém Pimenta (2013, p. 108), “the final decisions of the Maritime Court do not have the legal nature of technical opinions, but of administrative res judicata, being, therefore, definitive decisions in the administrative scope, with the force to point out those responsible, applying them the penalties prescribed by law”.
Due to this, it is clear that, despite the Maritime Court being an administrative body, it exercises what the doctrine understands as anomalous jurisdiction, lato sensu jurisdiction, or even “quasi jurisdiction”, forming administrative res judicata. Even though it is not a typical jurisdiction, stricto sensu, exercised by the Judiciary, it cannot be said that it is a pure administrative activity.
Furthermore, there is, in the legal text, an entire chapter designed to define the jurisdiction and competence of the Brazilian Maritime Court, bringing key concepts and helping to understand its real functions. According to article 10 of the law under study, the Court has jurisdiction over a wide range of elements, such as merchant vessels of any nationality in Brazilian waters, and foreign merchant vessels on the high seas; in case they are involved in maritime accidents or maritime incidents; navigation; among other situations.
In this regard, Júdice (2014, p. 84-86) observes that, even though it is apart from the Judiciary, it can be stated that the activity of the Brazilian Maritime Court has a jurisdictional nature, and such an understanding was, in fact, already confirmed in a judgment by the Brazilian Federal Supreme Court – STF:
Even if it were considered a body of a purely administrative nature, it could still be mentioned that there is substantially jurisdictional activity, because the body carries out interpretive activity of the law authorized by law. It is a jurisdictional activity, therefore (...). It is with this contemporary vision that the guiding provisions of the Organic Law of the Maritime Court (LOTM) must be interpreted. At the very least, what the order signals is joint and/or complementary action between jurisdictional bodies (...). This matter was even the subject of analysis by the Federal Supreme Court (STF) in AGR n. 62,811, which categorically attributed jurisdictional nature to the rulings of the Maritime Court, mitigating, on that occasion, the principle of access to justice.
In the judgment of the aforementioned Interlocutory Appeal No. 62,811 by the STF, Minister Bilac Pinto stated that the Brazilian Maritime Court exercises quasi-jurisdictional competence, and that its creation, through its specialized framework, aimed precisely to “relieve judicial institutions of purely technical burdens, for which they are not prepared”.
For this reason, the Civil Procedure Code itself, in its article 313, VII, provides for the suspension of the judicial process when it involves issues arising from facts and accidents of navigation, in order to await the Maritime Court's position on the matter, in harmony with article 19 of Law nº 2.180/54, aiming at cooperative work between the bodies.
Due to the great specialty of the subject under its jurisdiction, it is unlikely that the judicial court, even if exercising the jurisdictional function considered typical, in terms of the principle of access to justice, will have the technical conditions to reverse the merits of the decisions given in the Brazilian Maritime Court. To do so, equally technical evidence must be presented with a presumption of certainty, as article 18 of Law nº 2.180/54 grants to the Maritime Court (BEIRÃO; FRANCO, 2019).
Furthermore, in article 13 of the law under study, there is a provision of the competence assigned to the Brazilian Maritime Court. Competence is the distribution of the duties that make up the jurisdiction, that is, it is the element that restricts the body's actions, defining the forms and limits of action within its jurisdiction (JÚNIOR, 2014, p. 176). According to the aforementioned article:
Art. 13. The Maritime Court is responsible for:
I - judge accidents and facts of navigation;
a) defining their nature and determining their causes, circumstances and extent;
b) identifying those responsible and applying the penalties established in this law;
c) proposing preventive and navigation safety measures;
II - maintain the general record:
a) naval property;
b) naval mortgage and other liens on Brazilian vessels;
c) Brazilian ship owners.
In this way, it can be observed that the jurisdiction of the Brazilian Maritime Court is restricted to judging accidents and facts of navigation, as well as maintaining the general register of naval property, naval mortgages and Brazilian ship owners. Since article 13, item I of Law nº 2.180 expressly allows the Brazilian Maritime Court to judge accidents and facts of navigation, there is also jurisdiction for the said Court to examine administrative investigations and impose penalties on violators of the law. So much so, that the law contains, in its text, the entire structure of the procedure to be followed when any situation involving the jurisdiction of the Brazilian Maritime Court occurs.
In this sense, it is necessary to observe the subsequent articles of the aforementioned law, in particular articles 16 and 17, which bring a vast list of powers, allowing the Court to determine the carrying out of diligence, prohibit or suspend vessel traffic as a security measure, and investigate the proper application of conventions concerning the safety of human life at sea; among others, which show the clear possibility of the Maritime Court to execute its own decisions.
Furthermore, Title II of Law nº 2.180 presents not only the investigation and its procedure, but also all the elements that constitute the trial process, which can, according to article 41, be initiated by decision of the Maritime Court itself, if it considers to be necessary.
Thus, it can be seen that the Brazilian Maritime Court, despite being an administrative body and part of the Executive Branch, carries out judicial activity, with its judges having due deference to their position, according to article 148 of Law nº 2.180/54, and is an institution with high degree of specialty in its functions, which are well delimited and coherent with the central objectives of the Maritime Court, so that its performance in judging navigation facts and accidents, within its competence, carries great weight in the sphere of Brazilian navigation, and is in accordance with the Brazilian constitutional principles.
References
BEIRÃO, André Panno; FRANCO, Gustavo Magno Felipe. A Repercussão das Decisões do Tribunal Marítimo nos Tribunais Regionais do Trabalho da 1ª, 2ª, 3ª e 17ª Regiões. Revista Juscontemporânea, Rio de Janeiro, v. 1, n.1, pp. 140-169, out. 2019/jan. 2020. <http://lexcultccjf.trf2.jus.br/index.php/revistajuscontemporanea/article/view/260/172>.
BRASIL. Lei nº 2.180, de 5 de fevereiro de 1954. Dispõe sobre o Tribunal Marítimo. <http://www.planalto.gov.br/ccivil_03/leis/L2180.htm>.
BRASIL. Supremo Tribunal Federal. Agravo de Instrumento nº 62.811 – RJ. Relator: Ministro Bilac Pinto. Data de Julgamento: 20 de junho de 1975. Data de Publicação no DJ: 26 de junho de 1975.
JUDICE, Mônica Pimenta. O Processo Marítimo à Luz do Direito Processual Civil. 2014. 198 f. Dissertação (Mestrado) - Curso de Direito, Pontifícia Universidade Católica de São Paulo, São Paulo, 2014.
JÚNIOR, Humberto Theodoro. Jurisdição e Competência. Revista da Faculdade de Direito da UFMG, n. 38, p. 176, fev. 2014. ISSN 1984-1841. <https://www.direito.ufmg.br/revista/index.php/revista/article/view/1167/1100>.
MARTINS, Eliane M. Octaviano. Curso de Direito Marítimo: Contratos e Processos. Vol. III. São Paulo: Manole, 2015.
NEVES, Daniel Amorim Assumpção. Manual de Direito Processual Civil. 10ª ed. rev. Salvador: Editora JusPodivm, 2018.
PIMENTA, Matusalém Gonçalves. Processo Marítimo: Formalidades e Tramitação. 2ª ed. Barueri: Manole, 2013.
