This was a cassation appeal brought by Kuehne + Nagel Ltda (K+N) and Nippon Yusen Kaisha Line (NYK) against the ruling of the Court of Appeals of Santiago of 20 January 2014 confirming the first instance judgment in favour of Alusa SA against the appellants for USD 199,006.89 plus interest.

NYK argued, among other things, that the appealed judgment violated arts 1041, 1042, and 1043 of the Commercial Code on multimodal transport, since K+N could not be classified as a multimodal transport operator, as was stated in the contested ruling, nor was it possible for NYK to be jointly and severally liable with K+N by virtue of art 1043 of the Commercial Code. NYK contended that art 10 of the Hamburg Rules, which regulates the joint and several liability of contractual and actual carriers, was not applicable. NYK reiterated that since there was no multimodal contract, but only a maritime transport contract in which Kuehne Colombia appeared as the shipper and Kuehne Ltda as the consignee, it was not possible that NYK could be considered jointly liable with K+N under art 1043 of the Commercial Code.

NYK also criticised the appealed judgment for not applying art 19 of the Hamburg Rules. Article 19 provides that unless the consignee gives written notice to the carrier of loss or damage within the period indicated, the fact of the carrier having placed the goods in the hands of the consignee will create the presumption that the carrier has delivered the goods as described in the transport document, or in good condition if a transport document has not been issued - a provision reaffirmed in art 1027 of the Code of Transportation and Trade. Here, Alusa SA did not prove that it had presented any timely protest or notice of the alleged damage to the cargo. As a consequence, NYK fulfilled its obligations under the transportation contract entered into, delivering to the agreed port of destination the same quality and quantity of cargo as was shipped at the port of origin.

Article 4.1 of the Hamburg Rules of 1978 provides that the maritime carrier is responsible for the goods for the period during which the carrier is in charge of the goods at the port of loading, during the carriage, and at the port of discharge. For NYK to be considered responsible, it had to be proven that the damage occurred while the goods were in its custody, which was not the case here. It had been proven that the damage was caused before the goods were in the custody of the maritime carrier. In any event, the plaintiff admitted that the cargo arrived at its destination on 25 April 2009, and only rejected the cargo three days later. Furthermore, from the terms of the claim itself it is clear that the damage was caused by insufficient packaging or inadequate preparation of the goods.

Finally, the judgment violated art 992 of the Commercial Code, due to the Court's erroneous rejection of limitation of liability, a rule in which it is established that the damages resulting from the loss or damage of the goods is limited to a maximum amount equivalent to 835 units of account per package or other unit of cargo transported, or to 2.5 units of account per kg of gross weight of the lost or damaged goods, if this amount is greater. In this case, for the 32,685 kgs, the limited liability corresponded to 81,712.50 SDRs, which at the relevant time was equivalent to USD 124,082.

Held: The cassation appeal is dismissed.

This Court has stated that the multimodal transportation contract specifically addressed in arts 1041-1043 of the Commercial Code is one that enjoys full autonomy. (SC Ruling of 25 July 2012, Rol No 573-2010) (CMI2470). With regard to the remaining substantive rules that are alleged to have been infringed in the appeal, it is appropriate to specify that the errors invoked in their regard are based on the assumption of the incorrect application of the rules on multimodal transport contracts, an argument that has already been rejected by this Court, and on the classification of the transport contract by the Judges. However, the appellant has not denounced any error regarding the rules of interpretation of contracts, which prevents this Court from verifying the existence of any other error in this regard.

It is established that there was a multimodal transport contract governed by arts 1041 ff of the Commercial Code. There is thus no error in making the company that was in charge of the maritime transport of the goods jointly responsible, together with the multimodal transport operator. Article 1043 expressly provides:

The responsibility of a multimodal transport operator does not exclude the responsibility of parties who are in charge of the various means of transport actually used. Each of these parties will be jointly responsible among themselves and with the multimodal transport operator, with respect to losses, damages, or delays with which the goods have been received at their final destination.