COLOMBIA Law and Practice Contributed by: Javier Franco, Franco & Abogados Asociados
applicable as a tool for interpreting international trea - ties. Colombia has not yet ratified the LLMC Convention. Accordingly, any such matters (specifically, limitation issues) are governed by the domestic Commercial Code. Regarding charterers’ limitation – in general – it must be said that, although it could be debatable at some point, it seems at least arguable that a charterer could limit their liability under local law in certain cir - cumstances. 3.5 Procedure and Requirements for Establishing a Limitation Fund Apart from those provisions contained in the CLC and FUND schemes, there are no specific provisions for the constitution of a limitation fund in Colombian law. 3.6 Seafarers’ Safety and Owners’ Liability The Maritime Labour Convention 2006 is not in force in Colombia. Thus, regular parameters of the domestic Labour Law apply. Colombia has not ratified any of the existing inter - national sets of rules on bills of lading. However, the Colombian Commercial Code has incorporated cer - tain provisions that – to a certain extent – purport to follow the general logic of the Hague/Hague-Visby Rules. Nevertheless, important differences can be found, particularly regarding the limitation of liability of the carrier. 4.2 Title to Sue on a Bill of Lading Usually, it is understood that, if a proper bill of lading was provided, the legitimate holder of the bill of lading would be the one entitled to present any claim against the carrier. 4.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages Articles 1643 and 1644 of the Colombian Commer - cial Code deal with the carrier’s limitation of liability, and state that the value of the cargo that has been declared to the carrier will be used as a maximum 4. Cargo Claims 4.1 Bills of Lading
limit of liability. If the value was not so declared by the shipper, the limit would be the price of the goods at the loading port. However, Article 1644 goes on to establish that parties could agree on a maximum limit of liability, thereby entitling parties to establish a dif - ferent limitation (see the Colombian Supreme Court of Justice’s decision of 8 September 2011, LJ William Namén). The aforementioned provisions apply to the benefit of whomever is considered “the carrier”, whether they are the registered ship-owner or not. 4.4 Misdeclaration of Cargo Colombia is not a traditional maritime jurisdiction, so there is not much case law on the subject. How - ever, it should be noted that, as per Article 1615 of the Colombian Commercial Code, the shipper should guarantee the precision of the information provided to the carrier regarding marks, numbers, quality, quan - tity, condition and weight of the goods. Thus, a breach of that obligation could enable the carrier to bring a claim against the shipper. 4.5 Time Bar for Filing Claims for Damaged or Lost Cargo There is no specific provision dealing with the time bar in the regulation of the contract for the maritime carriage of goods. Thus, Article 993 of the Colombian Commercial Code – namely, a provision of the gen - eral set of rules for the carriage contract – would be applicable. As per this provision, the time bar for filing a claim against the carrier would be two years, to be counted from the moment the goods have been deliv - ered or should have been delivered to the consignee. 5. Maritime Liens and Ship Arrests 5.1 Ship Arrests Colombia has not ratified any of the existing conven - tions on the arrest of vessels. However, Decision 487 of 2000 (namely, a regional instrument applicable in the Andean countries, including Colombia) deals specifi - cally with “vessels’ preventative embargo” ( embargo preventivo de buque ) – ie, the “arrest” of vessels, as it is known, particularly in Anglo-Saxon jurisdictions.
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