By Sebastián Betancourt
A set of legal reports, commissioned by the lawyers representing Maersk, would support the constitutionality of the limitation of liability adopted by the shipping company in the case of the Maersk Saltoro.
It should be recalled that the vessel experienced a mechanical failure in January 2025, while sailing from Valparaíso, Chile, to Nansha, China, leaving it adrift and delaying its arrival at the Chinese port, which resulted in the loss of a shipment of Chilean cherries composed of more than 1,300 containers.
Last August, lawyers representing a group of exporting companies that were affected by the vessel’s breakdown and subsequent damage to the fruit cargo filed a petition with the Constitutional Court, requesting that four articles of the Commercial Code be declared inapplicable, due to unconstitutionality, in the proceeding before the 5th Civil Court of Valparaíso. This was in order to prevent the constitution of the limitation of liability fund, arguing that these articles infringe provisions of the Political Constitution of the Republic of Chile (CPR).
The legal conflict that arose is based on the claim that these rules would be unconstitutional, as they would limit the procedural exercise of the exporting companies, as well as their right to property, while also violating the principle of legal equality due to the way the funds of the liability limitation regime are distributed.
“The declaration of inapplicability of articles 889 No. 3, 895 No. 2 letter b), 902 subsection 1° and 1217 subsection 1°, all of the Commercial Code, requested in this petition, aims for the 5th Civil Court of Valparaíso to be ordered to disregard these legal precepts when basing its decision in the pending judicial proceeding, as they violate the principle of proportionality, which is based on articles 6, 7 and 19 No. 26 of the CPR,” stated the document submitted to the Constitutional Court.
“As a consequence of such a declaration, the 5th Civil Court of Valparaíso must deny the constitution of the limitation of liability fund, since any application of the aforementioned legal norms will have an effect that violates the Constitution,” the document argued.
Conversely, a series of Legal Reports were commissioned to determine the appropriateness of the limitation of liability. One of them was the one carried out by Carlos Peña González, professor of Civil Law at the Universidad Diego Portales, at the request of Maersk A/S, Argosy PTE. Ltda., San Francisco Lo Garcés Ltda., Exportadora San Clemente S.A. and others.
The analysis asserted that “the limitation enshrined in the Commercial Code restricts the compensatory obligations of certain persons linked to maritime commerce to a sum determinable in advance, this attenuation of liability operating by law.
The institution has a broad economic foundation: since maritime activity is an unusually risky activity, if the entire cost of accidents were internalized by the one who carries out the activity, there would be few incentives to undertake it.”
“An examination of the constitutionality of the rules concerned by the case (…), shows that they do not infringe constitutional precepts nor violate fundamental rights” and added that “the legal precepts relating to the maritime lien are fully constitutional under the law in force in Chile,” pointed out the document.
For his part, the report prepared by lawyer Renato Pezoa Huerta, a full member of the Chilean Maritime Law Association and president of the Chilean Branch of the Ibero-American Institute of Maritime Law, concluded that “the limitation of liability is a benefit or a right, but not a privilege or a whim of the shipping industry to evade responsibility towards the parties interested in a maritime adventure” and that “it is a mechanism that fosters the preservation of the shipping industry.”
Likewise, he pointed out that “the dispute focus that may exist regarding the way in which the limitation of liability is invoked by the shipping company and how the limitation fund is constituted and the distribution of said fund to the creditors is determined, is a matter whose interpretation and economic weighting is clearly a matter of mere legality and does not transcend to the constitutional sphere” and that “the jurisdiction to resolve them -the norms- corresponds, exclusively, to the ordinary courts of justice.”
Meanwhile, the report by lawyer Miriam Henríquez Viñas, a full professor of Constitutional Law at the Alberto Hurtado University, defined that “the shipowner’s limitation of liability regime does not infringe equality before the law nor economic equality. The existence of compensation caps responds to a special statute based on objective and reasonable criteria, also present in other areas of the legal system. The limitation does not constitute an arbitrary privilege, but a public policy tool to balance the risks of maritime commerce.”
“The Chilean Constitution does not enshrine a fundamental right to full compensation for damages. The recognition of a duty to compensate arises from legal norms and jurisprudential developments that admit reasonable limitations, both in the types of compensable damage and in their amount,” reported the document.
Respecting international treaties
Consulted by PortalPortuario regarding the case, lawyer Renato Pezoa, author of one of the documents, explained that “the analysis that we make is that the shipowner, when setting sail, has to disburse large sums of money and generate some dividend that favors him.”
“However, there are also insurance contracts involved, a pile of things that are relevant and that already suppose a considerable expense or investment on the part of the shipowner. Now, since there are limitation funds that favor him, due to that same legal possibility granted to him by law, he can lower or keep freight rates at a limit that is reasonable for the exercise of maritime activity,” he explained.
“If we eliminate the limits of liability, the shipowner, from the start, will not want to do business with any shipper in Chile, because Chile will become a country, legally, very risky for his economic interests.
If the maritime industry is to be discouraged, it will cause a strong deceleration in international trade. It will also have a repercussion that, if the shipowner comes to Chile to operate, freight rates and insurance premiums will rise, and therefore, the shipper himself will be the one who will have to bear all these increases,” said Pezoa.
“Furthermore, we have an obligation as a State to respect and comply with international treaties. Here there is a constitutional dispute, but we also have rules that are above the Constitution, such as international treaties, and the Hamburg Rules are an international agreement. Therefore, if we are signatories to these rules, we cannot later modify our internal statute as a pretext to claim ignorance or transgression of an international treaty ratified by Chile,” the lawyer emphasized.
