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:
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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