International charterparties and bills of lading frequently incorporate protective mechanisms such as Paramount, Both-to-Blame Collision, General Average and New Jason clauses.
These provisions are designed to allocate navigation, collision, cargo and general-average risks and are commonly found in BIMCO forms and documentation required by marine insurers and P&I Clubs.
Their use in Brazil, however, requires particular attention. International conventions frequently referenced by these clauses — including the Hague, Hague-Visby, Hamburg and Rotterdam Rules — have not been incorporated into Brazilian law as mandatory regimes.
They may nevertheless become contractually relevant when validly incorporated into agreements between sophisticated commercial parties, subject to Brazilian mandatory law and public-policy limitations.
Market Impact
For shipowners and charterers, the effectiveness of these provisions can directly influence:
- freight and charter pricing
- cargo-liability exposure
- insurance and P&I coverage
- collision-risk allocation
- general-average contributions
- claims strategy and dispute costs
- commercial exposure following casualty events
The issue is particularly relevant in an increasingly international Brazilian maritime market, where standard-form contracts developed under English law are frequently used alongside operations subject to Brazilian jurisdiction.
Legal & Contractual Implications
Contracts should be reviewed carefully regarding:
- express incorporation of international rules and standard clauses
- governing law and jurisdiction
- foreign forum and arbitration provisions
- consistency between charterparties and bills of lading
- cargo-owner and insurer subrogation rights
- Both-to-Blame Collision indemnity mechanisms
- York-Antwerp Rules and general-average adjustments
- New Jason contributions
- interaction with Brazilian civil-liability rules
- mandatory rules and public-policy restrictions
A recent STJ decision involving international maritime transportation reinforced the relevance of contractual autonomy between sophisticated commercial parties by recognizing foreign forum and arbitration provisions as structural elements of the contractual allocation of risk.
That does not mean, however, that every protective clause used internationally will automatically be enforceable in Brazil. Clear drafting, proper incorporation and compatibility with the applicable legal regime remain essential.
Photo: Canva
