THE IMPOSSIBILITY OF CARGO RETENTION BY THE CARRIER, DUE TO THE NON-PRESENTATION OF THE ORIGINAL MASTER BILL OF LADING (OMBL)

Abstract

The general objective of this study is to demonstrate the impossibility of cargo retention by the carrier due to the failure to present the original Master Bill of Lading (OMBL), as such a practice is not provided for in Article 7 of Decree-Law No. 116/67, which regulates the operations of cargo transportation by waterway in Brazilian ports. The central issue investigated is the impracticability of retaining cargo in the absence of the original MBL. The hypothesis posits that, although the holder of the BL is the owner of the goods and there may be endorsement and legitimacy of third parties, cargo retention by the carrier is abusive as it does not fall within the scenarios allowed by Decree-Law No. 116/67. The specific objectives are: (1) to present the parties involved in import and export operations; (2) to outline the documents required to instruct international trade operations; and (3) to demonstrate the impossibility of cargo retention by the carrier without the original MBL, considering the provisions of Article 7 of Decree-Law No. 116/67 and the exemption from item c) of § 2 of Article 18 of IN/RFB 680/2006 for cases of Electronic Bill of Lading (CE). The main conclusions indicate that cargo retention without the original MBL is not allowed under Brazilian legislation, reinforcing the need for interpretation in accordance with the mentioned legal provisions. The methodology employed is of a basic nature, with a qualitative approach, characterized as descriptive research with a deductive method. The research is based on bibliographic review and documentary analysis, utilizing books and legislation to support the hypothesis.