SUSEP gives notice for Public Consultation on Civil Liability Insurance for Cargo Carriers
On December 22nd, the Superintendence of Private Insurance (SUSEP) published Notice No. 28/2022/SUSEP, which invites all interested parties to forward comments and suggestions within 30 (thirty) consecutive days to the Draft Resolution to compliance with the general guidelines applicable to Civil Liability Insurance for Cargo Carriers.
Through the statement, the body explained that the new device sought to consolidate all carriers’ liability insurance. This includes Civil Liability Insurance for Air Cargo Carriers (RCTA-C), Waterway Cargo Carrier (RCA-C), Rail Cargo Carrier (RCTF-C), the Road Cargo Carrier (RCTR-C), Optional Civil Liability Insurance for the Multimodal Cargo Transport Operator (RCOTM-C) and Optional Civil Liability Insurance for Road Carriers due to Cargo Disappearance (RCF-DC).
This unification takes place in accordance with the 2022 Regulation Plan approved by SUSEP Resolution No. 11/2022 and is also in compliance with the provisions of Decree No. 10,139/2019, which provides for the review and consolidation of normative acts below the decree issued by bodies and entities of the direct federal, autarchic and foundational public administration.
The Road Passenger Transport Civil Liability Insurance was not consolidated elsewhere as it is the only one in which the risk covered is related to bodily and/or material damage caused to passengers. In addition, a rule (Resolution CNSP No. 364/2018) was published on this type of insurance in 2018 and had recently been discussed.
The main changes and/or innovations brought in have been highlighted below:
The new standard presents four more concepts:
- Defense Cost: includes court costs, attorney and expert fees, and expenses necessary to file with the competent bodies, the defenses and/or appeals of the insured, related to claims covered by the insurance
- Capsizing: act of opening; turn on its side
- Multimodal Cargo Transport: that which, governed by a single contract, uses two or more modes of transport from origin to destination, and is carried out under the sole responsibility of a multimodal transport operator, pursuant to Law n. . 9,611, of January 19, 1998
- Beaching: method of stranding that consists of projecting the ship over a shallow or beach with loss of buoyancy.
Types of Insurance and Its Specifications
The proposed Resolution is included in the provisions of each type of insurance as follows
- Civil Liability Insurance for the Air Cargo Carrier (RCTA-C) – ensures the air carrier, duly qualified by the National Civil Aviation Agency (ANAC), through authorization, permission or concession contract, to commercially exploit the air services of cargo transport. In the case of liability for material damage suffered by goods and/or goods belonging to third parties which have been entrusted to them for transport in national air travel with an air cargo bill of lading or any other suitable document and, only in cases in which damage occurs during transport as a result of (i) collision, crash and/or forced landing of the aircraft (ii) aircraft fire or explosion, and/or (iii) fire or explosion in warehouses, warehouses or patios used by the insured in the locations where the trip begins, overnight, transfers and destination, even if these are outside the aircraft
- 2) Civil Liability Insurance for the Waterway Cargo Carrier (RCA-C) – the insured person, or Brazilian shipping company, is a legal entity authorized to operate waterway cargo transport by the National Waterway Transport Agency (ANTAQ). The risks covered are in case of (i) stranding, sinking or capsizing of the ship or vessel (ii) fire or explosion on the ship or vessel (iii) collision or contact with the ship or craft with any fixed moving body and/or (iv) fire or explosion in warehouses or yards used by the insured in the locations where the trip begins, stops overnight, transfers and the destination even if these are outside the ship or vessel
- Civil Liability Insurance for the Rail Cargo Carrier (RCTF-C) – the rail freight carrier is insured and duly authorized by the National Land Transport Agency (ANTT) through a concession to provide rail transport services. Risks directly caused by (i) collision and/or overturning, and/or derailment of the wagon(s) or the entire train are covered (ii) fire or explosion in the wagon(s) or train, and/or (iii) fire or explosion in warehouses, warehouses or areas used by the insured in the locations where the trip begins, stops overnight, transfers and destination, even if these are outside the rail area
- Civil Liability Insurance for Road Cargo Carriers (RCTR-C) – the carrier duly registered with the National Registry of Road Cargo Carriers (RNTRC) of the National Land Transport Agency (ANTT) is insured, and the risks covered are those directly caused by (i) collision and/or overturning of the transporting vehicle, and/or (ii) fire or explosion in the carrier vehicle
- Optional Civil Liability Insurance for the Multimodal Cargo Transport Operator (RCOTM-C) – The multimodal cargo transport operator is a legal entity contracted specifically for carrying out the multimodal cargo transport from the point of origin to the destination. This is insured by its own means or by third parties duly qualified and registered with the National Land Transport Agency (ANTT) and, in the case of an international level qualified with the Federal Revenue Service. At the national level, this insurance does not replace those obligatorily contracted by road, rail, waterway and air carriers when these are the third parties contracted by the multimodal operator to carry out the transport. During land travel, risks caused by (i) collision and/or overturning, and/or collision, and/or overturning, and/or derailment of the transporting vehicle are covered (ii) fire or explosion in the carrier vehicle; on a waterway route (i) stranding, stranding, sinking or capsizing of the ship or vessel, collision or contact of the ship or vessel with any movable fixed body other than water; or, (ii) by fire or explosion on the carrier vessel; during air travel, (i) collision, fall and/or forced landing, collision, fire or explosion in the aircraft which was duly proven; and, during storage (i) in case of fire or explosion during the permanence of the goods in the warehouses, warehouses or yards used by the insured for unitization/consolidation, de-unitization/deconsolidation, and/or transit of cargo subject to multimodal transport in the locations of start, overnight stay, transfer and final destination for a period of 15 calendar days from the date of entry in a warehouse or yard,
- Road Carrier Civil Liability Insurance for Cargo Disappearance (RCF-DC) – the carrier duly registered with the National Registry of Road Cargo Carriers (RNTRC) of the National Land Transport Agency (ANTT) is insured. In this modality, the risks caused by (i) total disappearance of the cargo as well as the vehicle during transport, as a result of a) embezzlement b) simple or qualified theft, or, c) simple extortion through kidnapping (ii) theft during transit, where the goods must have disappeared in whole or in part and the offender had taken control of the transporter’s vehicle through violence or serious threat to the driver; (iii) theft of goods or merchandise loaded onto transport vehicles while parked inside warehouses/warehouses yards or under the control of these spaces previously referred to in the policy, cumulatively with the following conditions a) Goods and goods loaded are accompanied by the respective bill of lading by road and/or another valid document; or, b) said goods have remained in the warehouse for more than 15 calendar days (iv) lastly, theft committed during water transport complementary to the road trip, in the Amazon region, upon opening of a police inquiry and, the total or partial disappearance of the cargo occurs, cumulatively or not with the on-board vehicle.
For RCTA-C, RCA-C, RCTF-C and RCTR-C insurance, the establishment of a deductible and/or mandatory participation of the insured person and their coverage is prohibited but with the option of adopting these measures in other coverage that may be offered for these insurances.
The rule establishes that the consequences arising from non-payment of any registration must be provided for in the contractual conditions of the insurance and the assets or interests related to premiums already paid continue to be covered until the end of the term of the registered risks.
Adjustment and settlement of claims
In the event of a civil or criminal action filed against the insured person or their representative, they will be obliged to appoint an attorney or lawyer for judicial or extrajudicial defense except in cases where the law does not require this appointment. Furthermore, the insured is prohibited from compromising, paying or taking other measures that compromise the outcome of the negotiations – mainly acknowledging responsibilities or admitting the action unless they have the express consent of the insurance company.
The last inclusion was on the topic of indemnity where it was defined that in the case of insurance that is not legally mandatory, the standard for payment of indemnity must be established in the contract and reimbursement to the insured or direct payment to the injured third party.
The CNSP Resolution draft proposes the revocation of the following: CNSP Resolution No. 182, of April 15, 2008; CNSP Resolution No. 183, of April 15, 2008; CNSP Resolution No. 184, of April 15, 2008; CNSP Resolution No. 219, of December 6, 2010; CNSP Resolution No. 247, of December 6, 2011; CNSP Resolution No. 256, of July 5, 2012 and CNSP Resolution No. 361, of June 21, 2018.
Lefosse’s Insurance, Reinsurance and Private Pension practice will continue to follow the news and changes that impact the sector. For further information on this subject, or others that may be of interest to you, please contact one of our professionals .
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