CHILE Law and Practice Contributed by: Ricardo Rozas, Max Morgan and Stefano Perretta, JJR Abogados
has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted”. The above distinction has simplified the identity of the carrier problem, as anyone who issues a bill of lading as a principal may be treated as a contractual carrier. This applies even to freight forwarders if they issue their own “house” bill of lading and, as a matter of Chilean practice, many cargo claims are normally based on these documents alone. In this respect, where the performance of the carriage or part thereof has been entrusted to an actual car - rier, the carrier nevertheless remains responsible for the entire carriage. The carrier is jointly and sever - ally responsible, in relation to the carriage performed by the actual carrier, for the acts and omissions of the actual carrier and of their staff and agents acting within the scope of their employment. Additionally, all the provisions governing the responsibility of the car - rier also apply to the responsibility of the actual carrier for the carriage performed by them. Under the Chilean adoption of the Hamburg Rules, one of the main principles is that the liability of the carrier is based on presumed fault or neglect. Accord - ingly, the carrier is liable for loss resulting from loss or damage to the goods, as well as from delay in deliv - ery, if the occurrence that caused the loss, damage or delay took place while the goods were in the carrier’s charge. If the ship-owner is deemed an actual carrier (as opposed to a carrier as defined above) and dam - age occurs during their custody period, such ship- owner would be liable. However, in Chile a carrier may avoid liability if they discharge the burden of prov - ing that they, their staff or their agents adopted all measures that could reasonably be required to avoid the cause of loss or damage and the consequences thereof. Regarding limitation in connection with contracts of carriage of goods by sea, Chilean law draws a dis - tinction between lost or damaged goods and delayed goods. In the former case, the carrier’s liability is lim - ited to an amount equal to 835 Special Drawing Rights (SDR) per package or other shipping unit, or 2.5 SDR per kilogram of gross weight, if the latter is higher.
In the case of delayed goods, the carrier’s liability is limited to an amount equivalent to 2.5 times the freight payable for the goods delayed, but not exceeding the total sum of the freight payable under the respective contract of carriage by sea. It is worth noting that the above rules do not compromise either the interests arising from the value of the damaged goods or the judicial costs. 4.4 Misdeclaration of Cargo Under the Chilean adoption of the Hamburg Rules, the shipper is subject to a general rule that they are not liable for loss sustained by the carrier or the actual car - rier, or for damage sustained by the ship, unless such loss or damage was caused by the fault or neglect of the shipper, their staff or their agents; nor is any servant or agent of the shipper liable for such loss or damage unless the loss or damage was caused by fault or neglect on their part. In addition, the shipper is subject to further special rules on dangerous goods. 4.5 Time Bar for Filing Claims for Damaged or Lost Cargo Under Chilean maritime law, the general principle is that any action relating to maritime disputes is time- barred after two years. Actions relating to passage contracts, freight, general average and contributions are time-barred within six months. In addition, in the case of collision actions, the two-year period is extended to three years if the responsible vessel was not arrested or detained while in Chilean jurisdiction - al waters, provided that the vessel abandoned them without calling at a Chilean port after the collision. As to time extensions, under Chilean maritime law the running of the corresponding limitation period can be interrupted by a declaration in writing to the claimant by the person to whom the limitation period applies. This can be done successively, but the correspond - ing period shall run again as of the date of the last declaration. 5. Maritime Liens and Ship Arrests 5.1 Ship Arrests Chile has not ratified any international convention regarding the arrest of ships. However, the fundamen -
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