Maritime freight rates have surged to levels that now threaten the economic balance of import operations and increase the likelihood of contractual disputes. The escalation—driven by the conflict between the United States and Iran, the closure of the Strait of Hormuz, route deviations, and attacks on vessels in the Persian Gulf—has placed significant pressure on companies reliant on equipment and components manufactured in Asia.
According to Port Trade data, container freight rates that ranged between USD 1,200 and USD 2,000 from January to April climbed to USD 4,800–5,700 in the following weeks, amounting to an increase of nearly 400% since the beginning of the year. This sharp rise exposes importers to additional storage charges, demurrage, detention, security-related expenses, late‑delivery penalties, and claims for economic rebalance.
Pedro Calmon Neto, partner at PCFA – Pedro Calmon Filho & Associados and a specialist in Maritime Law, underscores the need for companies to reassess negotiations, contractual clauses, and operational documents to determine the allocation of risks and the extent to which increased costs may be passed on. “When logistics costs rise at this magnitude, companies must scrutinize the agreements and documents governing the operation to identify who assumed each risk and which expenses may be transferred,” he notes.
The review should encompass the sale and purchase contract, bill of lading, booking confirmation, carrier’s general terms, the applicable Incoterm, insurance policy, and all communications exchanged during transport. Provisions on General Rate Increase (GRI), fuel adjustments, war surcharges, and route changes must also be examined, as well as the relationships established through Master BLs and House BLs in shipments handled by freight forwarders.
Risk Allocation and Evidence of Economic Imbalance
In private contracts, changes in economic conditions may be assessed under Articles 317, 393, and 478–480 of the Brazilian Civil Code, which address adjustment of obligations, force majeure, and excessive onerousness. Application of these provisions depends on the nature of the operation, foreseeability of the event, and the agreed risk matrix. Although a nearly 400% increase is a significant factor in negotiations, it does not automatically guarantee price revision or authorize unilateral cost pass‑through.
Calmon Neto highlights that the date of contracting, duration of the relationship, tariff history, fixed‑price arrangements, adjustment formulas, surcharge provisions, and the financial impact on performance must all be considered. Force majeure is typically invoked when the event prevents performance or excludes liability for certain losses, whereas hardship applies when performance remains possible but a supervening change undermines the economic equilibrium and justifies renegotiation. “The right to revision depends on demonstrating that the event exceeded the ordinary fluctuations of the business and objectively affected the agreed economic equation,” he explains.
In international contracts, the UNIDROIT Principles recognize hardship when the cost of performance increases substantially or its value is significantly reduced, provided the event occurs after contracting, lies beyond the disadvantaged party’s control, and does not fall within the risks assumed. Requests for renegotiation must be submitted promptly and with justification, without automatically suspending obligations. The UNIDROIT commentary even records a case in which a carrier was denied adjustment after a fuel price spike because the service had been contracted at a fixed rate.
Companies seeking revision must gather historical price series, carrier quotations, invoices, surcharge evidence, route‑change records, roll‑over notices, and financial projections that quantify the impact of the new cost. “The party seeking renegotiation must act swiftly, present the grounds for its request, and demonstrate the measures adopted to mitigate losses,” he adds.
Demurrage, Storage, and Insurance
Another recurring source of disputes concerns the distinction between port‑terminal storage charges, demurrage arising from container unavailability after free time, and detention, typically applied when equipment remains outside the terminal beyond the agreed period. Contracts must specify deadlines, daily rates, tariff escalation, commencement of counting, and circumstances for interruption or exemption. Brazil’s Superior Court of Justice, in Theme 1,035, established a five‑year limitation period for previously stipulated charges and ten years when contractual criteria for calculation are absent.
ANTAQ Resolution No. 112/2024 introduced a matrix to identify responsibility for additional storage based on the cause of delay and the inherent risks of each participant. Overbooking, cargo shut‑out, and split‑lot issues may be attributed to the maritime carrier, while vessel technical problems, skipped calls, system failures, berth unavailability, administrative restrictions, and road‑transport difficulties are assessed according to the responsible agent. “Charges must follow the cause of delay and the responsibility assigned to each participant in the logistics chain, supported by operational records and applicable regulations,” Calmon Neto advises.
Insurance policies also require careful review. Cargo and liability policies have distinct limits, objects, and exclusions. Freight forwarders may obtain coverage for claims, defense costs, and certain financial losses, while importers must verify whether their policies cover storage expenses, redirection, and salvage. Calmon Neto recommends revisiting clauses on pricing, GRI, fuel, war risks, force majeure, hardship, free time, demurrage, detention, insurance, and liability limitation before new shipments. “Prevention depends on contracts aligned with the operation, continuous monitoring of cargo, and immediate recording of events capable of generating delays or additional expenses,” he concludes.
About PCFA – Pedro Calmon Filho & Associados - Founded in 1964 by jurist Pedro Calmon Filho, PCFA – Pedro Calmon Filho & Associados is one of Brazil’s most traditional and respected law firms specializing in Maritime Law. With more than six decades of experience, the firm has become a national reference in legal services for port, shipping, and offshore companies, offering strategic civil, labor, regulatory, and contractual solutions.
Since 2008, with the consolidation of its Maritime Labor Law practice—now representing approximately 70% of its activities—PCFA has established itself as one of the country’s leading firms in the defense of operators and companies linked to the ocean economy. Headquartered in Rio de Janeiro and with active presence in São Paulo, Santos, Vitória, and Paranaguá, the firm combines tradition and technical excellence with continuous modernization of its legal services.
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