This was a cassation appeal brought by CMA CGM SA against the decision handed down by the Court of Appeals of Valparaíso on 14 December 2009, which found that there was a multimodal contract between the appellant carrier and Cultivos Marinos Internacionales SA (CMI) to transport a container of frozen oysters from Coquimbo, Chile, to Dunkirk, France, which had been breached, requiring the carrier to compensate CMI. The contract required the oysters to be transported by land from Coquimbo to Valparaíso, Chile, and from there by sea to the port of Dunkirk. The truck with the cargo did not arrive in Valparaíso. The truck was driven on 2 December 2004 by Roberto Benito Lagos Ordenes and his father, Jaime Roberto Lagos Cueto. CMI had contracted with the appellant carrier for transportation from Coquimbo through to Dunkirk through its agent in Chile, AJ Broom y Cía SA.

CMI claimed that it had entered into a multimodal contract with the appellant, and maintained that the appellant had assumed responsibility for the entire transport between Coquimbo and the French destination. The appellant contended that there was no multimodal contract. The appellant only agreed to carry the goods from Valparaíso to France. There were two different and independent contracts, that of transportation by land and that of transportation by sea. Given that it was unable to receive the container at the port of Valparaíso, the appellant was not liable as it was not in a position to take the container to its destination abroad. The Court of Appeals of Valparaíso agreed with CMI's arguments.

The appellant argued on the merits that the Court of Appeals had violated arts 1041, 1042, and 1043 of the Commercial Code, and arts 32.6 and 35 of the Political Constitution of the Republic; and had improperly applied arts 982 of the Commercial Code and 4.1 of the Hamburg Rules, signed by Chile on 31 March 1978, published in the Official Gazette on 23 October 1982, and in force since 1 November 1992.

The first ground of the substantive appeal was that the contested ruling considered that the transport contract between CMI and the appellant had a multimodal nature, which was impossible since the final para of art 1041 of the Commercial Code states that to work in Chile as an operator of that class, it is necessary to be registered in a special registry, in accordance with regulations promulgated for this purpose. Since these regulations had not been issued, there were no multimodal transport operators in Chile.

Secondly, the appellant maintained that art 982 of the Commercial Code and art 4.1 of the Hamburg Rules, which was signed by Chile on 31 March 1978, published in the Official Gazette, ceased to apply on 23 October 1982, and only came into force on 1 November 1992.

CMI argued that the case was regulated by art 4.1 of the Hamburg Rules, which took precedence over art 982 of the Commercial Code.

Held: The cassation appeal is dismissed.

When, as with art 1041 of the Commercial Code, a legal norm that is part of a code of the Republic establishes a modality to be a formally registered multimodal operator 'according to the regulations issued for this purpose', undoubtedly this has the characteristic of an executive regulation. The central question lies in whether the law that recognises the existence of the multimodal contract should be considered a dead letter because the regulations for which it provides have not yet been promulgated. Article 1041 defines the concepts of multimodal transport, multimodal transport operator, multimodal transport contract, multimodal transport document, consignor, consignee, and cargo. The elements of the essence of the multimodal contract, understood in art 1444 of the Civil Code, are fully compatible with those of the transport contract referred to above. As a consequence, the multimodal transport contract specifically discussed in arts 1041-1043 of the Commercial Code, is one that enjoys full autonomy. It is a main contract that is sufficient in itself. It does not seem sustainable to argue that because subordinate regulations have not been given shape, this has the de facto effect of repealing the executive legislation giving effect to them. There can be no doubt that art 1042 applies in this case. This Court does not see, therefore, the false application of arts 1041, 1042, and 1043 of the Commercial Code that the appellant denounces.

Article 1042 states: 'The rules on liability of the contract for the transportation of goods by sea, contained in the third section of the preceding paragraph 3, will be applicable to multimodal transportation during the period indicated in Article 982.' Article 982 clearly establishes that the carrier's responsibility for the goods includes the period during which they are in its custody 'whether on land or during [maritime] transportation'. In other words, the Commercial Code defined with complete accuracy that the responsibility of the multimodal carrier extends from the moment it receives the cargo until it is delivered to its final destination.

Article 4.1 of the Hamburg Rules merely states that the liability of the carrier covers the period during which the goods are in the custody of the carrier 'during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge'. This is a general regulation that, in no case, in accordance with the mandatory provisions governing the doctrine of tacit repeal, would have rendered art 982 of the Commercial Code otiose. As a consequence, there has been no such repeal of that provision. Therefore, the last of the appeal grounds disappears in substance.