In the context of the current COVID-19 crisis, Customs recently issued Resolution 1179/20, which implements transitory modes for the treatment of various customs procedures and the ways of presenting documents associated therewith to facilitate foreign trade transactions.
Among these transitory measures, Customs has authorised electronic exchanges and amendments to bills of lading. However, customs agents must now obtain the original bill of lading from its issuer and keep it in its importation file.
The main regulations applicable to cargo delivery procedures are the Hamburg Rules, which are incorporated without major changes into Article 974 and following of the Commercial Code. In addition, the Customs Ordinance, the Compendium of Customs Regulations and the Coastal Shipping Regulations apply.
Article 977 of the Commerce Code defines a 'bill of lading' as a document by which the carrier undertakes to deliver the goods against surrender of the document to the order of a named person, or to order, or to bearer.
With this in mind, the Compendium of Customs Regulations expressly includes the original bill of lading as one of the documents used to prepare import declarations.
In this respect, from an ocean carrier's perspective, the most important aspects of the customs procedures set out in the Compendium of Customs Regulations are as follows:
- Customs agents must surrender the original bill of lading to the carrier once the import declaration has been accepted for its handling and prior to withdrawing the goods from the warehouse under the jurisdiction of Customs.
- The import declaration must be drawn up on the basis of several documents, including the original bill of lading.
- In the case of cargo in containers, the surrender of the original bill of lading to the ocean carrier is a condition precedent for the issuance of the title for the temporary admission of containers.
- Customs agents must keep a copy of the bill of lading in their file. This copy must show:
- the endorsement of the bill of lading to the customs agent, which constitutes its authority to collect the goods; and
- the acknowledgment of receipt from the person authorised to receive the original bill of lading.
- In the case of transport documents issued by freight forwarders (eg, house bills of lading) and used as the basis for the import declaration, these documents must include a reference to the transport document from which they are derived so that the information is stated in the customs destination declaration.
Implications of Resolution 1179/20
The main implications of Resolution 1179/20 for ocean carriers are as follows:
- A copy of the exchange of the original bill of lading and amendments to it can now be sent to custom agents electronically.
- Customs agents have 30 working days to obtain the original bill of lading that was accepted as part of the import declaration. Upon receipt, the original bill of lading must be kept within the customs agent's file.
Given that Resolution 1179/20 has not expressly modified the Chilean Customs Compendium, there are several greys areas regarding its interpretation and practical implementation, including with regard to potential delivery of cargo without surrender of the original bill of lading.
Until clarifications are obtained from Customs, ocean carriers should proceed carefully and liaise with their Chilean port agents to define interim protocols. Ocean carriers should also consider requesting letters of indemnity or similar guarantees from their shippers or consignees, as the case may be.
