CHILE Law and Practice Contributed by: Ricardo Rozas, Max Morgan and Stefano Perretta, Jorquiera & Rozas Abogados
carrier has taken charge or has loaded the goods and has undertaken to deliver them against presentation of that document to a determined person to his order or to the bearer”. In this respect, under the Chilean adoption of the Hamburg Rules, “shipper” means: • any person by whom or in whose name or on whose behalf a contract of carriage of goods by sea has been concluded with a carrier; and • any person by whom or in whose name or on whose behalf the goods are actually delivered to the carrier in relation to the contract of car - riage by sea. In addition, under the Chilean adoption of the Hamburg Rules, “consignee” means “the person entitled by a document of title to take delivery of the goods”. Notwithstanding that there is some debate among local scholars as regards the nature of the contract of carriage by sea, under Chilean practice title to sue will usually be associated with the lawful holder of the bill of lading, which includes the shipper, consignee, endorsees and subrogated insurers, as the case may be. As regards assignment of title to sue, this can generally be done following the assignment rules contained in the Chilean Civil Code. 3.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages The Chilean adoption of the Hamburg Rules rec - ognises a basic distinction between the “car - rier” (also known as the “contractual carrier”) and the “actual carrier”. The former is defined as “any person by whom or in whose name a contract of carriage of goods by sea has been
concluded with a shipper” and the latter as “any person to whom the performance of the carriage of the goods, or part of the carriage, 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 carrier, the carrier nevertheless remains responsible for the entire carriage. The carrier is jointly and severally 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 provi - sions governing the responsibility of the carrier also apply to the responsibility of the actual car - rier for the carriage performed by them. Under the Chilean adoption of the Hamburg Rules, one of the main principles is that the liabil - ity of the carrier is based on presumed fault or neglect. Accordingly, the carrier is liable for loss resulting from loss or damage to the goods, as well as from delay in delivery, 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
100 CHAMBERS.COM
Powered by FlippingBook