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16 November 2016
Article 136 of the Fishing Law states that:
"Anyone who brings or who orders placing chemical, biological or physical polluting agents in the sea, rivers, lakes or any other body of water that caused damage to hydro-biological resources without being previously neutralised to avoid such damage, shall be penalised with sanctions from 50 up to 3,000 UTM (approx. USD 3,516.85 up to 211,011.04). In case of a malicious act, the penalty shall be minor imprisonment in its minimum degree."
The provision expressly refers to malicious acts, but contains no reference to negligence.
In the context of a pollution case in Quintero Bay (for further information please see "Courts accept letter of undertaking as sufficient guarantee in arrest of vessel"), criminal proceedings were commenced against the pilot of a tanker vessel that was performing oil discharge operations and the master of the tug assisting the vessel for alleged liability under Article 136 of the Fishing Law. The criminal prosecutor and claimants referenced Article 136 and the first-instance court held that the provision covered negligence, as the introduction of polluting agents, such as oil, could be the result of an accident.
However, the Valparaiso Court of Appeal reversed that decision and held that, under the Constitution, no law establishes penalties if the conduct is not expressly described therein. According to the court, Article 136 contains no reference to negligence, reckless imprudence or any other form of fault.
The Valparaiso Court of Appeal further stated that the matter under investigation was the alleged negligence attributed to people who were subject to criminal charges. As Article 136 does not cover negligence, the court concluded that such actions could not be punished under the article.
The Valparaiso Court of Appeal granted an order for permanent stay in connection to the pilot of the tanker and the master of the tug.
The Valparaiso Court of Appeal decision restricts the application of criminal liability for spills that cause damage to hydro-biological resources to cases associated with malicious acts.
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