CHILE Law and Practice Contributed by: Ricardo Rozas, Max Morgan and Stefano Perretta, Jorquiera & Rozas Abogados
5. Passenger Claims 5.1 Laws and Conventions Applicable to the Resolution of Passenger Claims The Athens Convention on the Carriage of Pas - sengers and their Luggage by Sea, 1974 (the “Athens Convention”) is not applicable in Chile. However, passengers’ rights and the liability of the carrier are regulated by the Code of Com - merce (Articles 1044 to 1078), which is based on the Athens Convention. In addition, if a travel agent is involved, the Chilean Consumer Protec - tion Act may also apply. In this respect, it should be noted that claims for indemnities for personal injury of a passen - ger are recognised as privileged credits, which allow for requesting a vessel arrest (see 4.1 Ship Arrests ). 6. Enforcement of Law and Jurisdiction and Arbitration Clauses 6.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading As regards charterparties, Chilean law applies the principle of freedom of contract. Accordingly, the law and jurisdiction clauses stated in bills of lading should be recognised and enforced by Chilean courts. As regards carriage of goods by sea, the provi - sions of the Chilean adoption of the Hamburg Rules are compulsorily applicable regardless of the nationality of the ship, carrier, actual carrier, shipper, consignee or any other interested per - son if:
4.11 Insolvency Laws Applied by Maritime Courts
In Chile, there is no scheme of insolvency laws analogous to Chapter 11 of the United States Bankruptcy Code. 4.12 Damages in the Event of Wrongful Arrest of a Vessel Under Chilean law, the arresting party must attach antecedents that constitute presumption of the right being claimed. If the court considers that the supporting documents are not sufficient or the petitioner states they are not yet available to them, the court may require that counterse - curity be provided for the potential damage that may be caused if, subsequently, it is found that the petition lacked basis. In addition, when an arrest has been decreed a pre-judicial precautionary measure (ie, a meas - ure to secure the outcome of a subsequent sub - stantive action), the petitioner is obliged to file its complaint requesting that the decreed arrest remain in force within a period that, in principle, is ten days but that may be extended for up to a total of 30 days, provided there is a sound basis for doing so. Non-fulfilment of this obligation will result in cancellation of the arrest and liability for the damage that may have been caused, on the irrefutable presumption that the grounds for the arrest were fraudulent. In addition, if the arrest was wrongful, fraudulent or lacked basis, the defendant may claim damages in separate ordi - nary proceedings subject to the general rules set forth by the Code of Civil Procedure.
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