This was a cassation appeal brought by RSA Seguros Chile SA against a ruling of the Santiago Court of Appeals upholding a jurisdictional objection by the defendant carriers, Cía Chilena de Navegación Interoceánica SA and Hamburg Sud Chile.

The appellant argued that art 21.1 of the Hamburg Rules provides:

In judicial proceedings relating to carriage of goods under this Convention the plaintiff, at his option, may institute an action in a court which according to the law of the State where the court is situated, is competent and within the jurisdiction of which is situated one of the following places:

(a) the principal place of business or, in the absence thereof, the habitual residence of the defendant; or

(b) the place where the contract was made, provided that the defendant has there a place of business, branch or agency through which the contract was made; or

(c) the port of loading or the port of discharge; or

(d) any additional place designated for that purpose in the contract of carriage by sea.

The reference to 'courts' here is to the ordinary courts constituted in the aforementioned jurisdictional territory. It is clearly, and without a doubt, thus defined in response to what art 22.1 of the Hamburg Rules states: 'Subject to the provisions of this article, parties may provide by agreement evidenced in writing that any dispute that may arise relating to carriage of goods under this Convention shall be referred to arbitration.' A harmonious interpretation of arts 21 and 22 of the Hamburg Rules, which came into force in Chile on 1 November 1992 and is currently in full force, should have been applied in this case.

By deciding that the ordinary courts were incompetent to hear this cargo dispute, on the basis that art 1203 of the Commercial Code requires all maritime disputes to be referred to arbitration, the Court of Appeals violated arts 21 and 22 of the Hamburg Rules, and arts 52 and 53 of the Civil Code. The validity of an international standard, which is framed within the principle of good faith and compliance with the commitments that make up the ius cogens principles codified by the Vienna Convention on the Law of Treaties, and which is an integral part of the Chilean legal system, cannot be affected by an internal legal provision.

Held: Cassation appeal dismissed.

This Court sees no formal incompatibility between what art 21 of the Hamburg Rules provides and what is ordered by art 1203 of the Commercial Code. Article 21 provides: 'In judicial proceedings relating to carriage of goods under this Convention the plaintiff, at his option, may institute an action in a court which according to the law of the State where the court is situated, is competent and within the jurisdiction of which is situated one of the following places ...'. In other words, the jurisdiction of the court is determined in accordance with the law of the State in which the court is situated, offering several territorial alternatives to choose the location of the court. In the case of Chile, art 1203 of the Commercial Code provides that all disputes arising from facts, acts, or contracts in respect of maritime commerce or navigation, including maritime insurance of any kind, will be submitted to arbitration, without prejudice to the exceptions provided for in art 1203. As a consequence, in accordance with the Hamburg Rules, the Republic of Chile, by legal provision, has provided that arbitral justice is competent to hear these cases. These are courts that, in accordance with art 5 of the Organic Code of Courts, must be considered to exercise jurisdiction in our territory. The arbitration thus provided must be considered a legal source, although it is not mandatory, since the parties can renounce it as provided for in art 1036 of the Commercial Code. The First Court of Appeals of Santiago thus ruled correctly when issuing the judgment challenged through cassation on the merits.