This was an appeal on the merits brought by the plaintiff, Taipan Exports Ltda, against the judgment issued by the Court of Appeals of Santiago, which confirmed the first instance judgment that had decided to reject the plaintiff's claim for misdelivery.

The appeal alleged violation of arts 149 and 977 of the Commercial Code, art 7 of the Hamburg Rules 1978, which provides that the 'defences and limits of liability provided for in this Convention apply in any action against the carrier in respect of loss of or damage to the goods covered by the contract of carriage by sea, as well as of delay in delivery whether the action is founded in contract, in tort or otherwise', and art 98 of the General Customs Ordinance, in that the contested judgment denied the claim, despite the fact that the cargo was allegedly misdelivered without complying with or adhering to the requirements of the relevant bills of lading. An error of law occurred because the contested judgment did not apply the relevant legal rules correctly, despite the fact that Customs officials delivered the cargo belonging to the plaintiff to a party other than the consignee who was authorised to receive it.

Held: Appeal dismissed.

In order to prove extra-contractual [ie delictual or tortious] liability, the appellant must demonstrate the concurrence of an act or omission which can be attributed to fraud or fault, capacity, damage, and a causal relationship between the acts or omissions and the pernicious effects alleged. The judgment below held that, in order to determine whether or not the act is unlawful, one must adhere to the rules that govern commerce, and in particular the transportation of goods, that is, the regulations of the Commercial Code, the General Customs Ordinance, and other customs regulations. The Court did not find that the unlawful actions alleged by the plaintiff had been proven. Finally, it concluded that the actions of Cia Sudamericana de Vapores, the National Customs Service, and Lucky Crown were protected and carried out within the scope of legality and commercial custom contained in the general provisions of the Commercial Code.

In accordance with the above, it can be concluded that the attempted cassation on the merits has been built contrary to the facts properly established in the judgment below, since it ignores them. That being the case, since the facts underpinning this action for extracontractual liability do not prove unlawfulness, it is not necessary to deal with the remaining grounds of appeal, since they cannot have any influence on the correctness of the challenged judgment.