Memorandum Agreement on Maritime Transport between the Government of the United States of America and the Government of the Federative Republic of Brazil (with related letters and extending agreement) [1986] PITSE 2 (10 December 1986)

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MEMORANDUM AGREEMENT ON MARITIME TRANSPORT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL (with related letters and extending agreement)

MEMORANDUM AGREEMENT ON MARITIME TRANSPORT
MINISTERIO DOS TRANSPORTES SUPERINTENDENCIA NACIONAL DA MARINHA MERCANTE

1. The parties to this Agreement are the Government of the United States of America and the Government of the Federative Republic of Brazil.

2. This Agreement, which supersedes the parties' "Memorandum of Consultation" of March 7, 1970, as modified and extended through December 31, 1986, relates solely to oceanborne liner cargo originating in the territory of one party and destined to the territory of the other party. It is understood that the territory of the United States includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianas, and all other United States territories and possessions.

3. The national-flag vessels of each party shall have equal access (with the national-flag vessels of the other party) to the government-controlled cargo of the other party. The parties will take all necessary and appropriate administrative steps to ensure full compliance with this provision. This paragraph does not apply to United States exports of agricultural commodities or agricultural products covered by Section 901b of the Merchant Marine Act, 1936, or to the defense cargo of either party as defined in their respective national legislation. However, the amount of cargo not reserved for the U.S. flag is available to Brazilian flag vessels.

4. Non-government-controlled cargo shall be available for carriage by any carrier, without regard to the nationality of vessels, serving the bilateral trade in accordance with the legislation of either Party.

5. The national-flag vessels of the parties shall have unrestricted access to all cargo which is the subject of this Agreement.

6. Within the territories of the parties and subject to their cabotage laws, carriers serving the bilateral trade shall have the right to transship or relay cargo subject to this agreement, originating in the territory of one party and destined to the territory of the other party.

7. Within their respective territories the parties may take such measures as they deem appropriate to promote the development of intermodal service and intermodal rate making. Neither party shall adopt or pursue measures which would interfere with development of intermodal rates and services within the territories of the other party.

8. The tariffs of and shipping documents issued by non-vessel-operating common carriers organized under the laws of the United States shall be recognized and given effect in the southbound trade between the parties.

9. When the ocean freight portion of an intermodal shipment is clearly identified in the appropriate shipping document, the Brazilian tax for the renewal of the merchant marine shall be applied only to such ocean portion.

10. The availability period used by SUNAMAM to determine whether waivers for the carriage of government-controlled cargo by non-national vessels may be granted shall consist of no more than three (3) days before and seven (7) days after the shippers' requested sailing date. SUNAMAM will respond to waivers request within three (3) working days of receipt.

11. The Government of Brazil and the U.S. Government, upon request by a shipper, carrier or other interested party will advise in writing within four (4) working days if a specific cargo is under the laws of controlled cargo and the basis for such characterization.

12. The parties will regularly exchange timely information on the value and tons of their respective government-controlled cargo in the bilateral trade.

13. The national-flag vessels of each party shall have access to cargo in the third-country trades of the other party subject to the laws, regulations and international Agreements of each party.

14. Either party may require consultations concerning the interpretation, implementation, or amendment of this Agreement by giving the other party written notice of such consultations at least thirty (30) days in advance of their occurrence.

15. This Agreement shall be in force from January 1, 1987 through December 31, 1989.

16. This Agreement may be terminated by either party prior to December 31, 1989. Such termination shall be effective ninety days after the date on which written notice of termination is received by the other party. Termination shall not occur, however, without the consultation provisions of paragraph 14 having been observed.

This Agreement is reflected in the English and Portuguese languages, both texts being equally authentic.

Comandante Murillo Rubens Habbema de Maia
Superintendente
Superintendencia Nacional da Marinha Mercante
Avenida Rio Branco 115 - 140 andar
Rio de Janeiro, Brazil

In my letter to you dated January 10, 1985, I indicated that the United States would be willing at the end of 1986 to enter into a restructured government-to-government maritime agreement with Brazil if significant progress could be made in assuring increased competitive access in the bilateral trade, particularly cargo in the southbound trade. As a result of your assurances that Brazil has undertaken to pursue this objective, our governments have today entered into a memorandum agreement assuring full competitive access to commercial cargo, and guaranteeing the national flag vessels of each party equal access to the government-controlled cargo of the other party.

It is important for harmonious maritime relations between our two countries that progress be made toward realizing this objective. In this regard, the United States anticipates continued improvement in competitive conditions in our trades during the three year life of the agreement either as a result of a reduction in Brazilian government cargo (based on the value of the cargo) relative to total cargo or as a result of the introduction of more liberal rules relating to access to government cargo itself. If the anticipated improvements in the competitive environment are not realized, the United States may avail itself of any of the mechanisms embodied in the agreement.

To enable both sides to determine the extent of improvement in competitive access, we agree to exchange frequent and timely data on the value and volume of government-controlled cargo and all other cargo moving in the bilateral trade.

Em sua carta de 10 de janeiro de 1985, V.Sa. declarou que os Estados Unidos concordariam, no fim de 1986, em assinar, com o Brasil um acordo maritimo atualizado entre governos se pudesse ser feito progresso significativo para assegurar o aumento do acesso competitivo no trafego bilateral, especialmente a carga de importacao do Brasil. Conforme eu lhe assegurei, o Brasil se comprometeu a perseguir esse objetivo e, assim, nossos Governos, na data de hoje, assinaram um Memorando de Acordo que assegura o total acesso competitivo a carga nao-prescrita e garante, aos navios nacionais de cada uma das Partes, igual acesso as cargas prescritas da outra Parte.

Em particular, eu espero que a quantidade de carga commercial no trafego de importacao do Brasil aumente a medida que o Brasil continue a encorajar o desenvolvimento do setor privado. Nos tomamos nota, tambem, das preocupacoes dos Estados Unidos relativas a abrangencia da carga prescrita, a medida que o Brasil venha desenvolver e implementar sua nova Politica Maritima.

Para permitir a ambas as Partes determinarem a extensao da melhora do acesso competitivo, concordamos em trocar dados frequentes e atualizados sobre o valor e tonelagem da carga prescrita e de todas as outras cargas, movimentadas no tragefo bilateral.

Mr. John A. Gaughan
Maritime Administrator
U.S. Department of Transportation
Maritime Administration
400 Seventh Street, S.W.
Washington, D.C. 20590

In your letter to me of January 10, 1985, you indicated that the United States would be willing, at the end of 1986, to enter into a restructured government-to-government maritime agreement with Brazil if significant progress could be made in assuring increased competitive access in the bilateral trade, particularly cargo in the southbound trade. As we have assured you, Brazil has undertaken to pursue this objective, and thus our governments have today entered into a memorandum agreement assuring full competitive access to commercial cargo, and guaranteeing the national flag vessels of each party equal access to the government-controlled cargo of the other party.

In particular, we expect the amount of commercial cargo in the southbound trade to increase as Brazil continues to encourage private sector development. We will also take note of U.S. concerns relating to the scope of Brazilian government cargo as Brazil develops and implements its new maritime policy.

Maritime Administrator, U.S. Department of Transportation to the Brazilian Secretario de Transportes Aquaviarios

Mr. Claudio Roberto Fernandes Decourt
Secretario de Transportes Aquaviarios
Av. Rio Branco, 115
14 Andar
Rio de Janeiro, Brazil

I have the honor to refer to the Memorandum Agreement on Maritime Transport between the Government of the United States of America and the Government of the Federative Republic of Brazil, concluded December 10, 1986, and to the Exchange of Letters regarding increased competitive access in the bilateral trade also signed December 10, 1986. I also refer to consultations that took place in Washington, D.C. September 20-21, 1989 and to Agreed Minutes of those consultations signed today.

At the consultations, the United States put a priority on improving competitive conditions in our bilateral trades and on ensuring U.S. shipowners equal access to Brazilian government-controlled cargoes. To accomplish these objectives, we proposed narrowing the scope of Brazilian cargo reservation regulations. You noted that although the presidential elections in November precluded any major policy initiative, you would recommend to the next Brazilian Government that it address our concerns.

As a result of our discussions, the United States understands that Brazilian regulations do not impede carriers from entering conferences and applying to join cargo pools without government approval. Carriers may also take independent action on rates and services, and negotiate service contracts where permitted by the conference. It is further understood that the agreement applies only to government-controlled liner cargoes of both parties and that there will continue to be improvement in competitive access to the cargo in the southbound trade as set out in the letters dated December 10, 1986, of Murrillo Rubens Habbema de Maia and John A. Gaughan. Non-government-controlled and bulk cargoes remain subject to the legislative requirements and administrative actions of both countries.

I have the honor to propose an extension of the validity of the Memorandum Agreement on Maritime Transport and of the Exchange of Letters of December 10, 1986, through June 30, 1991. It is the view of the United States that this extension of the Memorandum Agreement and the Exchange of Letters for this period is sufficient to allow us time to negotiate and address the issues discussed during our September consultations and described in the Agreed Minutes. To ensure a successful outcome, we believe that negotiations should begin in 1990.

If these understandings and proposals are acceptable to the Government of Brazil, I propose that this letter and your letter in reply shall constitute an agreement between our two Governments.

The Brazilian Secretario de Transportes Aquaviarios to the Maritime Administrator, U.S. Department of Transportation

Acuso o recebimento de sua carta datada de 20 de dezembro de 1989, enfocando a extensao dos documentos que vem regendo desde 10 de dezembro de 1986 as relacoes de Transporte Maritimo entre a Republica Federativa do Brasil e os Estados Unidos da America.

Participo a V.Sa. que o Governo da Republica Federativa do Brasil esta plenamente de acordo com as posicoes sobre os temas ali tratados e com sua proposta de extensao da validade do Memorando de Acordo sobre Transporte Maritimo ate 30 de junho de 1991.

I acknowledge receipt of your letter of December 20 1989 focusing on the extension of the documents that have ruled since 10 December 1986 the Maritime Transport relations between the Federative Republic of Brazil and the United States of America.

I inform you that government of the Federative Republic of Brazil is entirely in agreement with the terms therein mentioned and your proposal to extend the validity of the Agreement for Maritime Transport until 30 June 1991.

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA

JOHN A. GAUGHAN
Maritime Administrator

CAPTAIN WARREN G. LEBACK
Maritime Administrator

FOR THE GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL

MURILLO RUBENS HABBEMA DE MAIA
National Superintendent of the
Merchant Marine (SUNAMAM)

CLAUDIO ROBERTO FERNANDES DECOURT
Secretario de Transportes Aquaviarios

Pacific Islands Treaty Series

Memorandum Agreement on Maritime Transport between the Government of the United States of America and the Government of the Federative Republic of Brazil (with related letters and extending agreement) [1986] PITSE 2 (10 December 1986)