A case before the Superior Labour Court intends to attribute subsidiary liability to a maritime agency for the labour debts of crewmembers who were hired to transport cargo on a ship chartered by the agency.
The agency was unsuccessful at the first and second instances.
The agency maintains that it charters vessels only for the transportation of goods and therefore cannot be characterized as a service purchaser. According to the agency, the contractual relationship between itself and the shipowner is of a commercial nature only and the contract entered into between them should not be confused with the outsourcing of labour.
However, the 12th Bench of the Sao Paulo Regional Labour Court denied the agency‘s previously filed review appeal and held that Precedent 331 of the Superior Labour Court should apply, thus making the service purchaser liable for defaults on labour obligations. However, the labour court held that the time charter contract created a subsidiary liability for the agency. According to the court, regardless of the fact that the crew were employed by the shipowner, the charterer was directly responsible for the management of the services, which were in the sole interest of its commercial activity. Thus, it should be considered subsidiarily liable for the labour charges due.
Dissatisfied with the decision, the agency filed an interlocutory appeal directly with the Superior Labour Court. The 5th Bench of the Superior Labour Court initiated judgment of the first appeal. However, the first vote cast by the case‘s reporting judge was unfavourable to the agency. The trial was interrupted by a request for review from one of the judges.
Concerned about the outcome of the proceedings, the agency tried to appeal to the judges to analyze the case on its merits. It alleged that the charter contract could be compared to a contract that is entered into between a tourist agency and a passenger: the agency books a seat for the passenger on a certain flight, to a certain destination and at a certain time, but the airplane‘s crew provides no service to the tourist agency.
This case is of key relevance for domestic navigation and a decision in favour of the mariners may affect future dealings.
For further information on this topic please contact Godofredo Mendes Vianna at Law Offices Carl Kincaid by telephone (+55 21 2223 4212), fax (+55 21 2253 4259) or email (godofredo@kincaid.com.br).
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