The plaintiff insurer filed a claim for damages for contractual liability and, alternatively, for extra-contractual liability, against the defendant carrier for USD 60,990.93. In September 1997 the defendant contracted to transport from Vitoria, Brazil, to Valparaíso, Chile, a shipment of wire rods consigned to Industrias De Alambre Inchalam SA. The cargo arrived at Valparaíso with significant damage on 6 October 1997. The cargo was insured by Aetna Chile Seguros Generales SA, the legal predecessor of the plaintiff, who compensated the insured. The plaintiff was subrogated into the insured's rights.

The defendant raised, among other things, the exception of the statute of limitations, referring to the rules contained in arts 1248 and 1249 of the Commercial Code and art 20 of the Hamburg Rules, taking into account that the delivery of the goods took place on 6 October 1997. The plaintiff maintained that the statute of limitations established by law had not elapsed, because although it was true that the proceedings entrusted to the previous Arbitrator Judge ended without a final judgment, the interruption of the same occurred with the notification of a request for the appointment of an arbitrator, which occurred in October 1999. The plaintiff added that the period for the development of the assignment elapsed because it was, in good faith, patiently awaiting confirmation of an offer made by the other party.

Held: Original judgment upheld with adjustment of interest.

The evidence established the following facts:

• The goods, consisting of 201 rolls of wire rod for steel wool were delivered at the port of origin, Vitoria, Brazil, in good condition by the shipper to the maritime carrier, without damage or shortages;
• The cargo, upon arrival at its destination, was found to have sustained damage consisting of dents, rust, cuts, and crushing of the wire rod rolls, which was confirmed by representatives of the consignee and the liquidators;
• The fact that the cargo was delivered at destination with the damage already indicated, allows the Court to establish that these occurred during the custody period of the maritime carrier, indicating a breach of the duty of custody and care of the goods established in the maritime transport contract by the carrier;
• The nature of the damage prevented the wire rod coils from being used for their original use, which was to produce steel wool - if the damaged coils had been used by the consignee, the cracking of the wire rod strands would have generated a loss of efficiency in production and poor quality of the final product;
• In order to reduce its loss, the consignee used the wire rod for an alternative use and mitigated 23% of its loss;
• Although the consignee used the damaged wire rods in an alternative process for the production of 4x8 nails, this use was not the one in view at the time of purchase, thus causing the damages currently claimed by the plaintiff;
• The damage to the goods was determined and valued in a liquidation process.

In order to reject the exception of prescription of the action, the Arbitrator Judge found that the interruption of the limitation period occurred with the first notification of the request for appointment of an arbitrator, which took place on 6 October 1999, despite the fact that the task entrusted to the previous arbitration Tribunal was not completed, because the legal term to execute it had elapsed. That finding is shared by this Court, because after the interruption of the prescription had occurred, other activities continued to be developed by the plaintiff aimed at obtaining compensation for the damages caused by the actions of the defendant, which, despite not being sufficiently diligent, resulted in the interruption of prescription, as indicated above.