Spanish Commercial Code

Title VI

RISK OF NAVIGATION

§ 1. Definitions and general rules

Section 1087. For purposes of this title shall mean damage:

1. ° Any damage suffered by the ship, whether or not charged, in port or while browsing, and affecting the load since it is loaded at the place of issue, until landing in the consignment, and

2. ° All unforeseen extraordinary expenses incurred during the expedition to the preservation of the ship, cargo or both at once.

Section 1088. Breakdowns are not ordinary expenses arising from:

1. ° pilotage and pilotage;

2. ° boats and trailers;

3. ° Harbour dues or other services to shipping;

4. ° Loading and unloading of goods, and

5. ° In general, all ordinary navigation.

Section 1089. All charges referred to in the preceding Article shall be borne by the carrier and or ship owner, unless other rules in this book or the agreement of the parties provide otherwise.

Section 1090. The faults are classified as:

1. ° Single or individuals, or

2. ° Thick or common.

In both cases it may be cost breakdowns and failures of damage.

Section 1091. In the absence of express provision, the liquidation and payment of damages shall be governed by the provisions of this title.

Section 1092. The arrangement of the damage done outside the territory of the Republic shall be governed by the law and customs of the place where such settlement check.

§ 2. Simple fault or particular

Section 1093. Faults are single or individuals:

1. ° The loss or damage affecting the ship or cargo, force majeure, inherent vice or by acts or events of the shipper, shipping, dependents or others;

2. The expenses incurred unforeseen extraordinary exclusive benefit of the ship, cargo or part thereof, and

3. ° In general, all damages and unforeseen extraordinary expenses that do not deserve the qualification of general average.

Section 1094. The owner of the thing that had suffered damage or expense caused, will support the particular fault, without prejudice to its right to pursue the corresponding responsibilities.

§ 3. The average or commonSection One. The admission average and his statement

Section 1095. They are average or common sacrifices or unforeseen extraordinary expenses, incurred or made intentionally and reasonably in order to preserve a common danger to the interests involved in the maritime expedition.

Section 1096. The classification, liquidation and distribution of general average, the parties may agree to use any kind of standards, which have received legal sanction of a state, whether from applications or agreements, foreign or international public or private or rules of practice, national or foreign.

Section 1097. The decision to take measures average or common, rests solely with the captain of the ship or his substitute, which in the circumstances of the case, hear the views of representatives of the load, if they are present.

Section 1098. Adopted the decision giving rise to the common fault and as soon as circumstances permit, the master shall record it in the log book, which will contain the date, time and place of the event, the measures ordered by the captain and fundamentals.

In the first place of arrival, and as soon as possible, the master shall confirm the facts relating to the general average, in the Book blog, before a minister of faith, without prejudice to information corresponding to the maritime authority, if regardless Chilean port.

When the arrival abroad should occur and the fault hath consequences in Chile, the ratification must be made to the Chilean consul, and failing that, before a minister of faith or to the competent local court.

Section 1099. Applies only to general average damages, losses or expenses arising from the act that originates. However, this effect will be included as expenses and liquidation of the damage and interest values for losses and disbursements payable in general average.

Damage or loss caused to delay the ship or cargo, either during or after the trip, and indirect losses due to this same cause, such as demurrage resulting from market and difference will not be admitted average.

Section 1100. Any expenses incurred to avoid loss, damage or expenditure that would have been payable in general average shall also be admitted as such, only to crowd the value of the damage or loss avoided or saved costs, as appropriate.

Section 1101. The burden of proving that an injury or expense should be admitted in general average, is in charge of who calls.

Section 1102. Faults are thick over the ship, freight and goods that exist in it at the time of those occur. Contribution shall be paid in proportion to the value of such goods.

Section 1103. There shall be a settlement of the general average, but the incident which has caused the damage or expense is due to the fault of one of the stakeholders in the maritime expedition, without prejudice to any action or defenses that THEY MAY exercise against .

Section 1104. The common fault is cleared, both in terms of losses and contributions, based on the values of the interests involved, the date and place where the sea expedition ends.

Section 1105. The arrangement of the general average shall be made by an expert liquidator.

Declared general average, if not already agreed in advance the name of the liquidator, or is not reached agreement on a person to designate, either party may request the appointment to judge the port where it finishes.

Required the court for the appointment, if the port was Chilean, it shall arrange his appointment in the manner prescribed by Articles 414 and 415 of the Code of Civil Procedure, without further ado. If the appointment is made in Chile, it shall devolve upon a Chilean insurance adjuster who has been appointed in the manner prescribed by law.

Section Two. The procedure to declare general average, and to challenge its legitimacy

Section 1106. When the master or owner of the vessel concerned has not declared a general average, anyone interested in it, may ask the judge indicated in the previous article to appoint an arbitrator to rule on the existence of the general average, unless already had been appointed.

This request may be made within six months following the expiration of the download.

The appointment, failing agreement will stick to the rules of paragraph 1 of Part VIII of this Book.

In turn, if declared general average by the master or owner of the ship, any interested party wishes to object in issuing its legitimacy, must make his appeal to the same judge indicated in the preceding article, within sixty consecutive days, counted since it has received notice in writing of the declaration of general average, or since has signed a commitment to malfunction, is not received before that communication.

The parties may also directly initiate an arbitration procedure.

Written expression includes, inter alia, telegram and telex.

It may be objected then the legitimacy of the fault, which is subject to action granted by section 1111 to object to the settlement itself.

Section 1107. Posed a challenge by an interested party, the court shall summon the parties to a subpoena to appoint an arbitrator to hearing the trial of impeachment. Be parties to this effect, the appellant, the owner of the vessel affected and who has applied for a declaration of general average.

Section 1108. The trial to declare a general average, as of the promotion to challenge its legitimacy, the referee will know in a single instance, and will also be invested with the powers specified in Article 1206 of this Book.

Unless the parties agree otherwise handling in these trials will comply to the Code of Civil Procedure provides for summary proceedings, with the exception of Articles 681 and 689.

Section 1109. All requests to declare the failure or challenge to their legitimacy, are processed jointly in a single trial. For this purpose, all claims will accrue to the first one is formulated and will be competent court or the arbitrator appointed to be appointed at the trial that first promoted there.

Other stakeholders who have not deducted challenges in a timely manner may be made party to the lawsuit stated, provided they do so before the hearing, answering established in summary proceedings, and from that moment they will also all other paperwork litigation.

The sentence that falls in the trial of impeachment, only affect those who have been party to it. If the sentence or acogiere the challenges, the contribution rates of those who have obtained at trial, shall be borne by the owner on whose behalf it was decided to produce damage or incur the expense.

Section 1110. Challenges to the legitimacy of the general average of the previous articles shall not suspend the proceedings of the liquidation of the same, whether previously appointed by the liquidator or the parties indicated in the case of Article 1105.

Section Three. The objection to the settlement

Section 1111. Complete liquidation of general average, the liquidator shall report its findings to all concerned, by registered letter, a copy of the settlement or an extract thereof containing at least the total amount of securities admitted in general average , the total quantity of each item taxpayer and the respective share of contribution.

This letter is sent by the liquidator by a notary or other minister of faith.

The applicant objected that no settlement within 45 days counted from the issuance of the letter shall be obligated to pay its contribution.

Section 1112. Objections to the settlement will accumulate in a single trial, which know a referee appointed in the manner referred to in Article 1106, which have the same powers mentioned in the previous section.

It is necessary to appoint new arbitrator, if it has been named before to hear any of the trials cited in the article, unless the objecting, proves a causal implication or objection against it.

The deadline to object to the settlement of general average, be suspended in respect of which have challenged its legitimacy, as mentioned in Article 1106, or what opportunities already done part in them, and until these disputes are resolved by a final sentence .

Section 1113. Objections to the settlement shall be determined under the rules established for the incidents in the Code of Civil Procedure, and they shall be given to the party that has declared general average or who is appointed to enforce them. If that is not stipulated otherwise, shall be the owner or operator of the affected vessel enforcing contracts.

If the referee we resolved to welcome the objections in the same resolution appoint a new liquidator indicating the points to be referred to your opinion. Evacuated this second opinion, the arbitrator decide the dispute. If they are dismissed the objections, the items will necessarily pay the costs.

Section 1114. The carrier or the ship owner shall not be required to deliver the goods until payment of the amount of the provisional or definitive contribution or payment guarantees. They may also request the deposit of goods on land, on behalf of the proper authority to give effect to the payment or the guarantee above.

Section 1115. The insurer shall indemnify the owner of property affected by the average, be subrogated to the rights it in any, of such damage.

§ 4. The approach

Section 1116. The rules of this paragraph shall apply to damage occurring in the following cases:

1. ° When a collision occurs between two or more ships, and

2. ° When due to the wave of displacement of a ship is occasioned damage to one or more other vessels, their cargo or persons on board them, although it would not be a collision.

To this end, the concept include the naval ship that can navigate their own or other means.

These rules will also apply when the events occurred in river water, lake or other waterway.

Section 1117. They also apply the rules of this paragraph, the damage occurring in collision between vessels belonging to the same owner or under a single administration.

Section 1118. In any approach is the law of the State in whose waters occurred.

If the collision is produced in waters under the sovereignty of any State, the applicable law of the country whose courts the application is made.

Section 1119. In a collision, the claimant may occur, at its option, before the civil court where the defendant or civil court of the port where the ship is responsible for taking refuge, or has been withheld or rooted.

If competition correspond to a Chilean tribunal shall apply the rules set out in paragraph 1 of Part VIII of this Book. The appointment of the arbitrator, failing agreement of the parties may be requested at the option of complaining to the presiding judge with civil jurisdiction of any of the locations mentioned in the previous paragraph.

Section 1120. If the collision between two or more ships was caused by force majeure, or if there is any doubt about the cause that originated it, the damage will be borne individually by those who have suffered.

Section 1121. If the collision was caused by fault or misconduct of the captain, pilot or crew one of the ships, the damage will be the responsibility of its owner.

Section 1122. If the collision is attributable to the fault of two or more ships, the total losses will be borne by the owner of each in the proportion of blame assigned to the respective ship by the court to which the first action of damages to be promoted.

However, payments to claimants will be governed by the rules of the following article.

Section 1123. Those responsible shall be jointly liable to pay compensation for death or injuries in the collision, notwithstanding the right of recourse against each other whatever has been paid in excess of its quota, according to the proportionality of the blame for every ship .

Regarding damage to the cargo, there is no solidarity among the ships guilty, and each owner will pay the damages of the charges damaged his ship, in the manner provided by law or the respective charter contracts or transportation. If by virtue of the above, or the effect of direct cargo owners of one or more other vessels in collision, a ship owner or carrier will repay a greater proportion than the percentage of blame assigned to his ship, the owner may reclaim the the other, or other craft for the excess has been paid.

Section 1124. For the determination of civil liabilities arising from a collision, are deemed true, unless proven otherwise, the facts established as determinants of him in the final determination made in the summary has been initiated by the maritime authority.

Section 1125. If a ship, having been addressed, naufragare during their navigation to the port or place where he went, his loss will be considered as a result of the collision, unless proven otherwise.

§ 5. The forced landing

Section 1126. Forcible entry is necessary arrival of the ship to a port or place other than scale or terms provided for the trip.

Section 1127. Costs constitute a general average forced landing if she has made in the common interest of the ship and cargo, in other cases shall be borne by the interested party who is affected by the need to make. All this is without prejudice to any action to compete against those responsible for the facts which have led to the forced landing.

§ 6. Of the services provided to a ship or other property in danger

Section One. Concepts and scope

Section 1128. For purposes of this paragraph, that:

1. ° Operation rescue or relief assistance involves any act or activity undertaken to assist a ship, naval craft in danger or any property, regardless of the waters where the act occurs or the activity takes place. For this purpose, the expressions rescue or relief assistance will be considered synonymous;

2. ° Nave, includes any ship, boat, able to navigate structure or vessel, including any ship that is stranded, abandoned by her crew and sunk and is the subject of aid to this paragraph;

3. ° Among the assets at risk also includes the freight transport of the cargo ship that helps, whether the risk of loss of cargo corresponding to the owner of the goods, the shipowner and the charterer, and

4. ° Damage to the environment is significant physical damage to human health, animal or plant life and marine resources in waters under national jurisdiction and land areas adjacent to those produced by pollution, poisoning, explosion, fire or other similar causes.

Section 1129. The master shall have authority to conclude contracts for assistance to and on behalf of the owners or operators of the vessel and other property in its custody and are in danger.

The owner of a ship to which you HAVE to bring assistance to the rescuers respond to all rights arising in their favor, even affecting the cargo or other property benefit.

The foregoing is without prejudice to the right of the owner or the owner of the ship steering, which corresponds to retrieve other benefits or obligations.

Section 1130. The rules of this paragraph shall apply to all assistance operation, unless the relevant contract provides otherwise expressly or implicitly.

However, do not apply to:

1. ° to the assistance to be provided to warships or other ships public, and are used at the time relief operations exclusively in government departments, non-commercial and

2. ° A wreck removal.

Also apply if the vessel assisted and assistant belong to the same owner or are subject to the same administration.

Section 1131. Any party that has entered into a contract or assistance agreement, request you rescind or modify in the following cases:

1. ° When the contract was signed under undue pressure or influence of danger and, moreover, its terms are unfair or

2. ° When the agreed payment is too high or too low, for services actually rendered.

Section Two. Obligations of the parties in relief operations

Section 1132. The owner, including the operator acting under contract with the former, the owner and captain of a ship in danger, are required to:

1. Adopt timely reasonable steps to obtain assistance, cooperate fully with the assistant for operations and do everything possible to prevent or minimize damage to the environment;

2. ° Ask for help right away where the ship, aircraft or vessel, by your state or where they are, endanger or be an obstacle to navigation, fishing, preservation of the environment or other activities at sea or river. In such cases, the services provided by order of the authority or own and do not have the limitation set forth in Article 1152.

This is without prejudice to the powers that the Navigation Act gives the maritime authority in these matters, and

3. ° Ask for or accept assistance services savior when it reasonably appears that is conducting relief operations can not complete alone, or within a reasonable time, or its components are inadequate.

Section 1133. The owners of the ship or goods saved have been taken to a safe place, they must accept their return when it is deemed reasonably complete the work of the rescuers.

Section 1134. The obligations of the wizard:

1. ° Perform salvage operations with due care, using their best efforts to save the ship and goods contained therein and to prevent or minimize damage to the environment, and

2. ° If the circumstances reasonably require, the wizard will request assistance from other salvors available and accept the intervention of other participants when required by the owner or master, as indicated in item 3. Of article 1132. However, in the latter case, the amount of remuneration shall not be affected if it is demonstrated that this intervention was not necessary.

Section 1135. Every master is bound to render assistance to any person in distress at sea.

The owner or operator of the ship shall not be liable for breach of this duty of the captain.

Section Three. Rights of audience

Section 1136. Support services will be entitled to compensation in the following cases:

1. ° When succor a ship or other property in danger, or

2. ° When you have to prevent, avoid or mitigate environmental damage.

In both cases, the remuneration and reimbursement of expenses and damages incurred by the assistant shall be governed by the provisions of this section.

Section 1137. To qualify for compensation, you need assistance operations have had a useful result, unless expressly otherwise agreed.

Section 1138. The remuneration should be set with the intention of encouraging assistance operations, and taking into account, inter alia, the following considerations, without regard to the order listed:

1. ° The value of goods accompanied;

2. ° The skill and efforts of participants to prevent or minimize damage to the environment;

3. ° The degree of success achieved by the assistant;

4. ° The nature and degree of danger;

5. ° The efforts of the attendees, including time used and expenses and damages incurred by them;

6. ° The risk of liability and other risks run by participants or their equipment;

7. ° The speed of the service;

8. ° The availability and use of equipment and ships specially designed for rescue operations, and

9. ° The extent and state of readiness, efficiency and value of the equipment from the audience.

Where it has been agreed that, while not useful, the assistant is entitled to reimbursement of their expenses and compensation for damage to boats or equipment used to fix the amount is attending, as appropriate, to the considerations outlined above , which is subject to establishing the next section, if it chooses the wizard.

Section 1139. The remuneration referred to in the preceding article may not exceed the value of goods at the time assisted the completion of the relief operation.

Section Four. Reimbursement of expenses and special compensation

Section 1140. If the wizard has run relief operations to a ship which by itself or its cargo, or was threatening to cause environmental damage occurring will at least be entitled to reimbursement by the owner or operator of the ship, the expenses reasonably incurred and may further have the right to compensation as indicated in the following article.

Section 1141. If the circumstances described in the previous article, with its operations, the wizard has avoided or reduced the damage to the environment, and the court deems reasonable and fair compensation may be increased owed by the owner or operator of the ship, for which will take into consideration the different criteria mentioned in Article 1138. But in no case exceed that compensation at twice the base amount.

Section 1142. For the purposes mentioned in the two preceding articles shall be considered as expenditure of the wizard, disbursements reasonably incurred in relief operations and appropriate allocation of the equipment and personnel actually and reasonably used in these operations, taking into consideration the criteria in the 7. °, 8. and 9. of article 1138.

Section 1143. Where remuneration that corresponds to the assistant under Article 1138, fall below the total compensation and reimbursement of expenses that may be obtained by applying the three preceding articles, may require that you pay based on the latter method, although not in and agreed beforehand.

Section 1144. If the wizard has been negligent and has thereby failed to prevent or minimize damage to the environment, can be totally or partially deprived of the compensation and reimbursement that would have been entitled under this section.

Section Five. Distributions to participants

Section 1145. If there is more than an assistant, the fee is distributed among them according to the criteria specified in Article 1138.

Section 1146. The distribution between the owner, master and others in the service of every ship assistant, will be determined according to the law of the flag of the ship. If attendance has not been carried out from a ship, the distribution will be made according to the law governing the contract in force between the wizard and their dependents.

Section 1147. Where applicable national law enforcement, the distribution is governed by the following rules:

1. ° After deduction of the proportion of fixed and variable costs of the ship, including costs and damage relief, the shipowner shall pay half the liquid, and

2. ° The other half is distributed between the envelope in proportion to their base salary or wages. In any case, the share of the master may not be less than twice the rate that would correspond according to their basic salary.

When you choose to distribute part of the special compensation referred to in Articles 1141 and 1142, is assigned to each item the amount that the court has set respectively, and that apply to staff remuneration, if nothing is expressed in the fault, distributed in accordance with the number 2. ° of this article.

In ships engaged exclusively in providing aid, the distribution will attend first to the covenants that they exist between the owner or operator of the ship and its crew assistant.

Section 1148. Correspond only to the owner of the vessel assistant exercise of the shares in payment of compensation, refunds, compensation and special compensation arising on labor provided by or from it.

Section Six. Salvage of persons

Section 1149. People whose lives have been saved should not be paid. However, El Salvador of life, who spoke on the occasion of an accident that results in services to assist the ship or other property, is entitled to an equitable share of the remuneration that corresponds to saving the ship or those other property, or that corresponds to the prevent or reduce damage to the environment.

Section Seven. Services rendered under existing contracts

Section 1150. The services provided pursuant to a contract prior to the emergence of the danger, not be considered assistance and will not be entitled to pay, refunds and compensation to in this paragraph, except as such services exceed what could reasonably be regarded as adequate fulfillment of this contract.

Section Eight. Deprivation of remuneration

Section 1151. An assistant may be deprived of all or part of remuneration, compensation, reimbursement or compensation due to the extent that salvage operations have become necessary or more difficult by his fault or fraud.

Section 1152. Services rendered notwithstanding the express and reasonable prohibition captain, owner or operator of the ship is not entitled to remuneration, allowances, reimbursements and compensation set forth in the provisions of this paragraph, except as provided in number 2. ° Article 1132.

Section Nine. Warranties and interim payments

Section 1153. While not constituting a sufficient guarantee to respond to the collection of the wizard, the property saved may not be transferred from the first port or place to have reached the end of the relief operations.

The court competent to entertain the application wizard, decree, at his request and without further ado, withholding or attachment of property saved and where the measure must be satisfied.

Section 1154. The same court referred to in the preceding article may be ordered to be paid to assistant already has a provisional amount that it considers appropriate and just. These payments will be entitled to a proportional reduction of the guarantee referred to in the preceding article.

The request for interim payments are granted shall be treated as incident and the resolution agreeing to it, will determine whether El Salvador should be a sufficient guarantee of return.

Section 1155. The decisions handed down in the matters referred to in the previous two articles, may be appealed to the sole purpose of execution.

Tenth Section. Competition

Section 1156. When will the parties be an ordinary court know about the regulation of the value of the services and the amount of damages and reimbursable expenses, and has not clarified the court shall, at the option of the plaintiff, for:

1. ° The address of the defendant;

2. ° The port or place where goods have been saved at the end of services;

3. ° The place which has become the respective warranty;

4. ° The place has retained the property saved or rooted, or

5. ° The place where the services were rendered.

Section 1157. When the same subjects in the previous article must be submitted to arbitration under the provisions of paragraph 1 of Title VIII of the Book, and necessary to proceed with the appointment of the arbitrator shall be competent to make such designation, any of the courts specified in that article to the applicant's choice.

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