By resolution of 27 October 2014, issued in proceedings C-11.385-2013, filed in the Seventeenth Civil Court of Santiago, Mr Ricardo Abuauad Dagach was appointed as arbitrator to determine the actions brought by AIG Chile Compañía de Seguros Generales (AIG), formerly Chartis Chile Compañía de Seguros Generales SA, formerly La Interamericana Compañía de Seguros Generales, against Schenker Chile SA (Schenker). The arbitrator ruled in favour of AIG, ordering Schenker to pay USD 24,234.30 plus interest. Schenker raised several procedural and substantive issues regarding the arbitration in a cassation appeal.

Schenker argued that the exception of exoneration of liability due to force majeure that was raised in the arbitration should have been accepted, because the event that caused the relevant cargo damage was a maritime collision, ie, a collision between the vessel transporting the cargo and another vessel, a fact that was unforeseeable on Schenker's part. Schenker only acted as a contractual carrier, so was not in a position to foresee the collision or take any steps to avoid it. Further, Schenker contended that according to the laws that govern contracts for the international transportation of goods by sea, proof of force majeure is not required, citing to this effect art 5 of the Hamburg Rules, which establishes that for a carrier to be exonerated from liability, it only has to be proven that those measures that could reasonably be required to avoid the event and its consequences were adopted.

Schenker also contended that the arbitrator should have accepted the exception of extinctive prescription by considering the collision as the cause of the damage to be proven, in accordance with art 1249.4 of the Commercial Code, with respect to which nothing was said. AIG itself stated in its pleadings that on '13 May 2011, about 80 miles from the port of Shanghai, the motor ship SCAV Pirque collided with the motor ship Genius I', which was the incident that generated the cargo damage. So the period of extinctive prescription of the compensatory action should have begun to run from the date of the collision, and not from the date on which the delivery of the goods ended.

Held: Cassation appeal dismissed. Arbitrator's ruling confirmed.

The Commercial Code establishes a liability regime for carriers which is based on legal presumptions in favour of the cargo interests, during the carrier's custody of the goods, a period that begins with the delivery of the goods to the carrier and ends with its delivery in any of the ways provided by law. So to avoid such liability, the carrier must prove that it adopted all reasonable measures to avoid the event and its consequences, which in this case Schenker did not do, which is why it was not able to rebut the legal presumption that rested on it. Having demonstrated the damage to the cargo carried and that this damage occurred during the sea crossing, in circumstances that a collision occurred that damaged the container in which the goods were stuffed, and consequently damaged the goods, AIG is not required to provide any further evidence. Schenker must prove the conduct that exonerated it from liability, or it has an obligation to compensate the damage caused to AIG, who was subrogated to the rights of the cargo owner, Fanaloza SA.

The exception of a fortuitous event or force majeure is also ruled out. In contractual terms, the creditor must prove the existence of the obligation and need not prove that its non-compliance arises from the debtor's fault - this is demonstrated by the mere fact of that non-compliance. If the debtor intends to free itself from liability, it is the party who must prove that non-compliance with the obligation is not attributable to it, by proving the fortuitous event or force majeure, or that the damage was due to irresistible or unforeseeable causes. No evidence was provided of this.

The legal responsibility of a carrier is regulated within the maritime transport contract under arts 982-1010 of the Commercial Code, and particularly arts 982, 983, and 984, which set out that it is a system based on presumptions of fault. In effect, liability for damage to the cargo or its loss, in the maritime transport contract, ie, the contract by virtue of which the carrier undertakes, against the payment of freight, to transport goods by sea from a port to another, results from the non-compliance of the maritime carrier, unless in a specific situation, and duly accredited, some cause for exoneration occurs. The arbitrator's ruling on this point was correct.

In accordance with the above, it should be added that the responsibility of the maritime carrier is also considered as an obligation of result. In terms of establishing prima facie legal responsibility, it is enough for the claimant to prove that the carrier did not deliver the cargo at its destination in the state in which it took it into its custody. The carrier would then, in principle, be responsible for damages. In accordance with the reasoning of an obligation of result, if the carrier - whether contractual or actual - undertook to transport certain cargo in perfect order, quantity, and condition, it will fail to fulfil its obligation if it does not deliver the goods in the same state, quantity, and condition in which it received them, provided that the loss or damage occurred during the period in which it was in its custody, in accordance with arts 982 and 983 of the Commercial Code.

Article 984 of the Commercial Code, which regulates the liability of the maritime carrier, provides:

The carrier will always be responsible for the damages resulting from the loss or damage of the goods, as well as the delay in their delivery, if the occurrence that has caused the loss, damage or delay occurred while the goods were in its custody under the terms of articles 982 and 983, unless it proves that it, its employees or agents, took all measures that could reasonably be required to avoid the occurrence and its circumstances.

This provision establishes the responsibility of the carrier derived from its obligation of result, which arises from contractual non-compliance without the diligence or fault of the carrier having any impact; and then contemplates the possibility of the carrier exonerating itself from liability by indicating and proving the measures adopted to avoid the fact and prove their reasonableness, none of which happened in this case.

It should be noted that in the Hamburg Rules, due diligence was eliminated as a cause for exoneration from liability, further assimilating the obligation of the maritime carrier to one of result. To this end, art 5.1 of the Rules, titled 'Basis of Liability', states:

The carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge as defined in article 4, unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences.

This wording is very similar to article 984 of the Commercial Code, which means that there is no basis in Schenker's allegations regarding a more favourable treatment in the Hamburg Rules for the exoneration that it invokes.

Regarding prescription, it should be noted that although Schenker also alleged prescription based on art 1249.4 of the Commercial Code [which is based on art 7 of the Collision Convention 1910], this case is not based on damages derived from a collision, which has not even been established in the terms that Schenker claims. In effect, these are damages suffered by cargo within the framework of a maritime transport contract, during the period that it was in the custody of the carrier, which is related to art 1249.2 of the Code [which is based on art 20 of the Hamburg Rules], establishing that the period of prescription will be counted from the day on which the delivery of the goods by the carrier, or part of them, ends, or when there was no delivery, from the end of the last day on which they should have been delivered. As concluded in the appealed ruling, prescription of AIG's action is not established on the facts.