Introduction
The Maritime Authority is authorised to initiate a maritime enquiry into accidents and losses involving vessels or persons in Chilean territorial waters, channels, lakes or navigable rivers to determine the causes and the parties responsible, and to establish the professional, technical and disciplinary liabilities that may apply.
The Maritime Authority also has jurisdiction if an accident or loss suffered by a Chilean vessel takes place on the high seas or in the territorial waters of another state, unless the event takes place within the jurisdiction of another country.
The director of the General Directorate of Maritime Territory and Merchant Navy is responsible for issuing a final decision regarding maritime enquiries, pursuant to the powers granted by the directorate's organic law.
Obligations following collision
Following a collision between ships, each captain is obliged to aid the other, as well as the crew and passengers of the other ship if it is possible do so without serious risk to his or her ship and the people on board. Further, captains must provide the necessary information to each other for identification purposes. If a captain does not comply with the aforementioned provisions without justification, he or she can be punished by removal from his or her position, notwithstanding the criminal liability that may arise from the incident. The shipowner is not responsible if the captain breaches the aforementioned obligations.
When civil liability arising from a collision is sought at trial, the causes set out in the Maritime Authority's administrative resolution are deemed to be true, unless proven otherwise. Further, the resolution is deemed to be an expert report, whose probative force is determined by the courts according to the rules of 'sana crítica' (ie, rules that allow an arbitrator to judge evidence according to his or her criteria).
The Maritime Authority can adopt measures required to assist a vessel in danger immediately and coordinate the rescue services. If possible, the authority will lead the rescue and salvage operations and order measures to ensure the safety of persons on board as well as the salvaged goods. In this regard, tugboats at the relevant port are placed at the disposal of the Maritime Authority. Some tugs are also available to develop port safety functions in order to prevent the risk of shipwrecks, boarding and other accidents.
When the Maritime Authority learns of a shipwreck or another incident or danger affecting a vessel and compromising the safety of passengers and crew, it may order vessels nearby – or at port in a condition to sail – to assist the vessel in danger immediately. Once the danger of loss of life has passed, the Maritime Authority can inform the vessels that they are free to go.
Anyone that refuses to appear to a summons issued by the Maritime Authority to submit a declaration in the context of a maritime enquiry can be fined up to Ps10,000 (approximately $65,000).
In the event of an accident or claim suffered by a Chilean vessel in territorial waters, navigable lakes or rivers, the prosecutor appointed by the local branch of the Maritime Authority or the Maritime Authority's director have jurisdiction to conduct the maritime enquiry.
In the event that a Chilean-flagged vessel disappears, the Maritime Authority's director will appoint a person to conduct the maritime enquiry. For these purposes, a vessel is deemed lost when it fails to appear or there is no news of its whereabouts for more than four months from receipt of its last communication.
If a foreign vessel is wrecked in international waters and the crew disembarks at a Chilean port, the Maritime Authority at that port can initiate an investigation if the captain or representatives of the affected vessel request this. The vessel's foreign crew are subject to the Immigration Act during their stay.
Damage to cargo and accidents or losses suffered by a vessel in port or during navigation must be notified by the shipowner or captain by submitting a letter of protest to the relevant branch of the Maritime Authority within the shortest possible time. The captain, shipowner or its legal representative must file a letter of protest following accidents suffered by a vessel or for losses or damages to cargo being transported, loaded or unloaded.
Letters of protest do not release the parties from liabilities that may arise in the event of accidents or damages.
When the navy prosecutor's ruling is issued following a maritime enquiry, the directorate may order the establishment of a maritime court, whose purpose is to:
- advise the director;
- determine what caused the incident; and
- establish the professional responsibilities that affect crew members or other persons.
For further information on this topic please contact Ricardo Rozas at JJR Abogados by telephone (+56 2 580 9300) or email ([email protected]). The JJR Abogados website can be accessed at www.jjr.cl.
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