Ministry of Defense
Advocacy General of the Union
Brasília (DF), 01/02/2023 – The Ministry of Defense, the Office of the General Counsel for the Federal Government and the Brazilian Navy inform that, in relation to the hull of the ex-Navy Aircraft Carrier “São Paulo”, it is important to emphasize that the administrative measures related to the environmentally sustainable dismantling of the ship, from the beginning, were dealt with in a shared manner between the Brazilian Navy (MB), the Brazilian Institute of Environment and Renewable Natural Resources (Ibama), the Ministry of Foreign Affairs (MRE), and the Office of the General Counsel (AGU), in the exercise of their specific competencies.
After the hull was sold, by means of a regular bidding procedure, the ownership of the asset became private, and it was up to the public bodies, provided the conditions were met, to issue the relevant authorizations for export to Turkey and the permanent monitoring of the procedures, in order to serve the public interest involved.
This procedure represented an unprecedented attempt, for Brazil, of safe and environmentally adequate recycling of a former state ship.
Ibama’s participation throughout the process was due to the fact that it is the competent Brazilian authority before the Basel Convention. The case demanded actions, analyses, and reports of interest from the Brazilian and Turkish environmental agencies, until the necessary authorization for the transboundary movement was issued by the two countries.
However, 22 days after the transit began, the Turkish environmental authority unilaterally withdrew its consent for the importation and dismantling of the hull in that country. It was then up to Ibama to suspend the export authorization and determine the immediate return of the hull to Brazil, in accordance with the precepts of the Basel Convention.
When the hull was returned to the country, the MB, through the Brazilian Maritime Authority (AMB), based on the exercise of its competencies foreseen by law, presented requirements to ensure the safety of navigation and the prevention of environmental pollution at sea and inland waters. At the time, the AMB determined the owner SÖK DENIZCILIK TIC.VE LTD (SÖK) to keep the hull in a waiting maritime area outside the Territorial Sea, at a distance greater than 22 km from the coast; and to have a hull survey performed by a Salvage Master company (responsible for verifying the hull’s integrity and buoyancy and stability conditions).
During the inspection, damages were found that should be repaired under the responsibility of the company SÖK. In order to make the repair and subsequent re-export possible, the AMB determined the fulfillment of requirements for entry into inland waters, among which the following stand out
- The need to maintain P&I (Protection and Indemnity) insurance coverage, triggered to defray the cost of eventual stripping or refloating/removal (in case of sinking) and to cover a period of work moored at a given shipyard; and
- Presentation of contract for berthing and repairing the hull, signed with a company/shipyard capable of executing the necessary services, with respective detailed work plan and estimated time, whose terms establish the duties and responsibilities of each party, regarding surveillance and maintenance of equipment and systems, during the entire period the hull is docked/berthed.
It should be mentioned that AMB is not responsible for interfering in private actions that involve the selection of shipyards to conduct repairs or negotiations with port terminals. However, in order to proceed with the re-export to an environmentally sustainable dismantling, AMB presented SÖK with a list of shipyards in Brazil with the technical capacity to carry out repairs on the hull.
Given the owner’s inertia in meeting the requirements determined by AMB and the imminent possibility of abandoning the hull at sea, AMB conducted a new expert inspection of the hull, in which a severe degradation of buoyancy and stability conditions was found. In addition, the company did not renew the P&I insurance, nor did it present a contract for mooring and repair, signed with a company/shipyard to execute the necessary services.
In light of the above, the Brazilian State has no alternative but to consider the asset as lost, under the terms of Law 7.542/1986, and take administrative control of the hull, in order to avoid damage to the environment and preserve the safety of navigation. It is worth pointing out that the SÖK did not cease to be responsible for the asset.
The AMB, foreseen by law and international norms, acted to avoid the possibility of grounding or sinking that could represent a danger to navigation or interdict an access channel to a national port, with logistical, operational, environmental and economic losses to the Brazilian State.
As part of this process, the tow train (tugboat and hull) was directed to a more distant maritime area, within Brazilian Jurisdictional Waters (AJB), 350 km off the Brazilian coast and with a depth of approximately 5 thousand meters, where the Ocean Support Ship “Purus” replaced the contracted tugboat, accompanied by the Frigate “União”, both of the MB.
The referred area, selected based on a study conducted by the Navy Hydrographic Center, was considered the safest for the conditions of severe hull degradation. For this, the following parameters were considered
- location within the area of the Brazilian Exclusive Economic Zone;
- location outside Environmental Protection Areas
- area free of interference with documented submarine cables
- area without interference from construction projects on water (e.g. wind farms); and
- area with depths greater than 3 thousand meters.
In view of the facts presented and the increasing risk involved in the towage task, due to the deterioration of the hull buoyancy conditions and the inevitability of spontaneous/uncontrolled sinking, it is not possible to adopt any other conduct other than the hull lightering, by means of planned and controlled sinking.
Finally, we emphasize that the decisions were based on technical criteria and adopted with the assistance of the involved agencies, in the exercise of their specific and common attributions. It is also important to highlight that the Office of the Federal Advocate General will take all appropriate extrajudicial and judicial measures, with the aim of mitigating, repairing, and safeguarding the interests of the Brazilian State.
Ministry of Defense
Advocacy General of the Union
*** Translated by the DEFCONPress FYI team ***