CHILE Law and Practice Contributed by: Ricardo Rozas, Max Morgan and Stefano Perretta, JJR Abogados
• the operator, carrier, charterer and the ship’s pro - prietor, if a different person or entity from the ship- owner as defined by Chilean regulations; and • individual employees of any person specified in the point directly above, including the Master and members of the crew, if sued. 3.4 Vienna Convention on the Law of Treaties The Vienna Convention is applicable in Chile. 3.5 Procedure and Requirements for Establishing a Limitation Fund The procedure for establishing a limitation fund in connection with general civil liability is regulated in the Code of Commerce (Article 1210 et seq). Its main features are as follows. Persons Entitled to Commence Limitation Proceedings Any of the persons listed in 3.3 Convention on Limi- tation of Liability for Maritime Claims , who consider themselves entitled to limit liability under the Chilean general limitation regime, may come before any of the courts mentioned below and ask that a procedure be initiated, aimed at constituting the fund and verify - ing and settling credits and distribution in accordance with the priorities provided by law. Competent Courts It will be up to an appropriate court to investigate all the matters referred to in 3.3 Convention on Limita- tion of Liability for Maritime Claims and any that are an accessory or of consequence to them. When the limitation of liability refers to a vessel regis - tered in Chile, it will be the civil court that lies within the jurisdiction of the port of registration of the vessel that has competence. If dealing with a foreign vessel, the appropriate Chil - ean civil court of the port where the accident occurred or of the first Chilean port of call after the accident has competence. Failing either of these, whatever court has jurisdiction in the place where the vessel was first retained or where a guarantee for the vessel had first been granted has competence.
When such a procedure has still not been brought in any of the courts mentioned above and the limitation of liability is filed in another trial as a defence, the same court before which it is being pleaded will be able to hear the case on limitation, so long as it is an ordinary one. If dealing with a court of arbitration, copies of the pertinent background information will be sent to the court that is able to hear the case in accordance with the preceding points so that, before this court, the action aimed at constituting and dis - tributing the limitation of liability fund can be brought. In these cases, the defence for limitation of liability by constituting the fund may only be made when answer - ing the lawsuit action. Term for Exercising Limitation of Liability by Constituting a Fund Except in the case discussed above, where the court before which limitation of liability is being pleaded hears the case, limitation of liability by constituting a fund may be exercised up to the expiry of the dead - line for filing defences within foreclosure proceedings or within the deadline of the summons referred to in Article 233 of the Chilean Code of Civil Procedure in court-ordered enforcement proceedings. Resolution Declaring Commencement of Proceedings The court, after examining whether the applicant’s calculations of the amount of the fund fall in line with the pertinent provisions, will issue a ruling in which it will declare that proceedings have begun. At the same time, it will rule on the options offered for the constitu - tion of the fund, ordering them to be complied with, if it approves them. In the same resolution, it will mention the sum that the petitioner shall place at the disposal of the court to cover all costs of proceedings, and it will appoint a receiver plus a deputy to conduct and carry out all the acts and operations that they are entrusted with in this capacity. These appointments shall fall upon persons who are on the list of receivers mentioned in the Chilean Bankruptcy Law, and it will not be neces - sary for their appointment to be ratified at a later date by the board of creditors.
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