CHILE Law and Practice Contributed by: Ricardo Rozas, Max Morgan and Stefano Perretta, JJR Abogados
Law 21,132 introduced new definitions of crimi - nal offences in connection with marine biological resources, including the exploitation of banned natu - ral resources or products extracted from the seabed, and overfishing. As regards water spills, Article 136 of the Fishing Law was amended to penalise not only malicious acts but also negligence. The new wording of Article 136 of the Fishing Law reads as follows (first and second paragraphs): “Anyone who without authority or in contravention of its conditions or in breach of the applicable rules, brings or orders the placing of chemical, biologi - cal or physical polluting agents into the sea, rivers, lakes or any other body of water that causes dam - age to hydro-biological resources shall be punished with minor imprisonment from medium to maximum degree and sanctions of 100 to 10,000 Chilean Unidad Tributaria Mensual (UTM, an administrative currency unit) (approximately USD7,300–USD730,000). If the above conduct is committed with recklessness or mere negligence, the penalty shall be minor impris - onment in its minimum degree and sanctions from 50 to 5,000 Chilean UTM (approximately USD3,650– USD365,000) without prejudice to the administrative penalties.” The Corporate Criminal Liability Law The Corporate Criminal Liability Law (Law 20,393) regulates the criminal liability of companies and other legal persons. Generally, it punishes terrorism financ - ing, bribery, money laundering and disloyal adminis - tration (also known as base crimes). The companies are penalised if the offences are committed by their employees or representatives to the benefit or in fur - therance of the direct interest of the relevant company, provided that the commission of the crime is the con - sequence of the company’s breach of its direction and oversight duties. Law 21,132 extended criminal liability for the above- mentioned offences under the Fishing Law to legal entities. Accordingly, the list of base crimes under Law 20,393 now comprises those relating to water spills and damage to marine biological resources.
Under Law 20,393, to be exempted from corporate criminal liability, companies must adopt a base crime- prevention model comprising: • the appointment of a crime-prevention officer with sufficient means and attributes for the performance of their duties; • the establishment of a crime-prevention system; and • the oversight and certification of the crime-preven - tion model. Law 21,132 has introduced important changes which must be followed carefully. In the case of spills that cause damage to hydro-biological resources, ship- owners operating in Chile are now subject to greater contingencies – not only in terms of administrative penalties but also in connection with criminal liabil - ity. Owing to the penalisation of recklessness and mere negligence and to the inclusion of the water spill offence on the list of offences that trigger corpo - rate criminal liability, an increase of criminal proceed - ings against ship-owners and/or Masters and crew is likely. In this respect, ship-owners should review their internal protocols and crime-prevention models, even though precisely how Chilean courts will con - sider such models has yet to be tested. Increase of Fruit Cargo Claims In recent years, there has been an increase of fruit cargo claims mainly from Chilean fruit exporters and/ or their cargo insurers. There are various reasons for this, including but not limited to the entry of new mar - ket players (recovery agents) and some features of the Chilean system that favour cargo interests, such as the Chilean adoption of the Hamburg Rules and the different targets that can be sued. Some of the issues that regularly arise are related to alleged temperature variations and/or damages caused by delay, as well as whether to consider sound market value. In this respect, carriers should always check whether there have been salvage recoveries, as well as their claims-handling obligations under vessel share agreements and other similar agreements (slot charters, etc).
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