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3.1
Legislation governing the port industry
Legal and regulatory framework applicable to the state-owned port industry
The principal legal statute governing the activities of state-owned ports in Chile is Law Nbr. 19,542 (the
“Port Law”), published in the Official Gazette on 19 December 1997. The Port Law created ten Port
Companies as successors to EMPORCHI, each owning and operating a port formerly owned and
operated by EMPORCHI (with the exception of Talcahuano/San Vicente, where one Port Company
operates two ports). The Port Law permits each Port Company to involve third parties in the conduct of
its business through lease contracts, the creation of joint-venture companies and the award of
concessions. In the case of the operation and/or construction of port terminals, third-party participation
can only be achieved through the tendering of concessions. The following additional regulations
provide detailed interpretation of certain parts of the Port Law:
•
Regulation on the Suggested Investment Schedule, published in the Official Gazette on 10 July 1998
(“Reglamento del Calendario Referencial de Inversiones”);
•
Regulation on the Master Plans of the Port Companies, published in the Official Gazette on 16 July
1998 (“Reglamento sobre los planes maestros de las Empresas Portuarias”); and
•
Regulation on the procedures concerning the bidding processes referred to in article 7 of Law Nbr.
19,542, published in the Official Gazette on 3 August 1998 (“Reglamento sobre normas y procedimiento
de los procesos de licitación a que se refiere el artículo 7 de la Ley Nbr. 19,542”).
Other regulations affecting the port and maritime industries are summarised below:
Maritime authority in Chile
Supreme Decree 1,430, dated 14 June 1941, established the General Directorate of Maritime Territory and
Merchant Marine (“DIRECTEMAR”) as the highest maritime authority in Chile, and granted
DIRECTEMAR authority over ports, ships and all other matters referred to therein. DIRECTEMAR has
authority over dykes, piers, berths and all construction of maritime facilities, and has jurisdiction over
all territory up to eighty metres inland from any coast, lake or river. DIRECTEMAR also administers all
maritime activity on the coasts and waterways under Chilean jurisdiction. Its duties include navigation
safety, the protection of human life at sea and the control and protection of all resources within national
maritime territory.
Navigation Law
• Decree Law Nbr. 2,222, published in the Official Gazette on 31 May 1978, sets forth the Navigation
Law, which charges DIRECTEMAR with the enforcement of laws and regulations applicable to port
operations, except for those matters that fall under the jurisdiction of other authorities. The
Navigation Law establishes rules concerning, among others, the registration and nationality of ships,
the dispatch and reception of ships in Chilean ports, navigation in Chilean waters, piloting and the
use of tugboats, the responsibilities of ship owners and operators, issues regarding personnel
employed on ships, disciplinary and security issues, navigation risk issues such as accidents, wrecks
and assistance rules, and certain environmental issues.
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• Decree Law Nbr. 3,059 of 1979 approving Law for the development of the Merchant Navy, contains
details concerning the vessels’ regime, foreign trade of cargo and norms relative to the National
Merchant Navy.
Pilotage regulations
Supreme Decree (M) Nbr. 397, published in the Official Gazette on 22 July 1985, sets forth Chile’s
pilotage regulations, pursuant to which Chilean pilots must be used by all ships that navigate through
intercoastal waterways or the Straits of Magellan, or perform any manoeuvres in Chilean ports or in
proximity thereof, except under the circumstances listed therein.
The regulations distinguish between pilotage (“practicaje”) and piloting (“pilotaje”). Pilotage is defined
as all manoeuvres performed by a ship in a port. Piloting is defined as the steering of a ship through
canals or between ports in Chile. Only former Chilean Navy officers duly registered with
DIRECTEMAR may act as pilots.
Stevedores
Article 917 of the Commercial Code defines stevedores as Chilean individuals or companies that move
cargo between ships or between ship and port facility.
According to Supreme Decree Nbr. 48 (Labour, Official Gazette, 30 May 1986), only individuals or
companies registered in DIRECTEMAR’s Stevedoring Agent and Company Registry (the “Stevedore
Registry”) are allowed to perform stevedoring activities at Chilean ports.
In order to qualify for registration in the Stevedore Registry, a stevedore must meet the following
requirements:
• In the case of an individual, he or she must: a) have Chilean citizenship; b) have an office established
in each location where he will perform stevedoring services; c) maintain a net worth equal to or
above a required minimum amount; d) not have been convicted of any crime; and e) not have been
previously removed from the Stevedore Registry.
• In the case of a company, it must: a) be legally registered in Chile, have a Chilean chairman of the
board and Chilean administrators, directors and managers and be 51% owned by Chilean nationals;
b) have an office established in each location where it will perform stevedoring services; c) maintain a
level of capitalisation at or above a required minimum; d) designate one or more Chilean
representatives to act on behalf of the company; and e) not have been previously removed from the
Stevedore Registry.
Shipping agents
Article 917 of the Commercial Code defines Shipping Agents as those Chilean individuals or companies
who act on behalf of ship owners or ship captains to carry out activities related to the servicing of ships.
Warehouses
DFL Nbr. 2 of 1997 and DFL Nbr. 1 of 1998 provide that concessionaires operating state-owned ports
may provide warehousing services. For these purposes, concessionaires need not meet all of the
requirements set forth in the regulations governing warehouses. The requirements applicable to
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concessionaires are contained in paragraphs six through nine of article 57 of DFL Nbr. 2 of 1997, which
refer in general terms to an authorisation that must be obtained from the Director of National Customs.
Supreme Decree (Finance) Nbr. 1,114 of 1998 (Regulation on customs warehouse areas and merchandise
storage), published in the Official Gazette on 26 May 1998, establishes additional requirements for the
qualification of an area as a customs warehouse.
Other laws and regulations
Other laws and regulations applicable to port operations include:
• Supreme Decree Nbr. 148, Convention related to the Inter-governmental Maritime Organisation
(OMI), (Official Gazette April 20, 1972)
Amendments
Resolution A 315 de 1974. Official Gazette July 8, 1976
Resolution A 318 de 1975. Official Gazette May 24, 1978
Resolution A 371 de 1975. Official Gazette May 24, 1978
Resolution A 400 de 1977. Official Gazette September 7, 1978;
• Supreme Decree Nbr. 328, International Convention for the Safety of Human Life in the Sea. (SOLAS
1974), (Official Gazette June 11, 1980);
• Supreme Decree Nbr. 473, International Convention for the Prevention of Sea Collisions, (Official
Gazette September 29, 1977);
•
Supreme Decree Nbr. 777 of September 13, 1978, International Maritime Code for Dangerous
Merchandise and Annexes (Official Gazette Nbr. 30197 of October 24, 1978)
Approved : Supreme Decree Nbr. 1809 form 1977
Agreement for the Prevention of Sea Contamination by Disposal of Residues and other Substances;
•
Supreme Decree Nbr. 474, International Agreement for the Prevention of Sea Contamination by
Hydrocarbons and its Amendment (1962 – 1977), (Official Gazette October 6, 1977);
•
Supreme Decree Nbr. 212, Convention to Facilitate the Maritime Trade and its Amendments,
(Official Gazette June 9, 1975);
•
Supreme Decree Nbr. 241, International Agreement for Cargo Shipping Lines, (Official Gazette June
23, 1975)
Note: The changes to this Agreement of 1971, 1975 and 1979 were approved by Chile through the
Decree 1.174 (July 10th, 1985);
•
Supreme Decree Nbr. 475, International Agreement for the Civil Responsibility for Damages Caused
by Sea Contamination due to Hydrocarbons by its Appendix, (Official Gazette October 8, 1975)
Note: See Navigation Law, Title IX and Book III, Commerce Code, Art. 839.844 (4th) 890-1132-12031230;
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•
Supreme Decree Nbr. 327, Convention for the Containers Security, (Official Gazette June 11, 1980)
•
Supreme Decree Nbr. 253, International Convention for the International Organisation of Satellite
Sea Communications (INMARSAT), Operation Agreement and Appendix, (Official Gazette June 3,
1981 and its amendments)
•
Supreme Decree Nbr. 943, International Convention for Maritime Search and Rescue, (Official
Gazette December 29, 1981)
•
Supreme Decree Nbr. 476, International Convention for the Prevention of Sea Contamination due to
Disposal of Residues and other Substances as well as Appendix I, II, III, (Official Gazette October 11,
1977)
•
Supreme Decree Nbr. 431, International Convention to Facilitate the International Sea Transport,
(Official Gazette August 13, 1981)
•
Supreme Decree Nbr. 533, Sea Transport Agreement of the Latin American Free Trade Association,
(Official Gazette October 21, 1977)
•
Supreme Decree Nbr. 304, Agreement and Additional Judicial Record for the Unification of certain
rules concerning the immunity of Government ships, (Official Gazette March 20, 1936)
•
Supreme Decree Nbr. 22, International Agreement for Ship Tonnage and its Appendix, (Official
Gazette April 23, 1983)
•
Supreme Decree Nbr. 380, United Nations Agreement for the International Multimodal Transport of
Merchandise and its Appendix, (Official Gazette August 4, 1982)
Official Gazette October 23, 1982, United Nations Agreement for the Maritime Transport of
Merchandise 1978.
•
Supreme Decree Nbr. 662, International Agreement for the Training, Inscription and Guard for Sea
Personnel, (Official Gazette October 7, 1987)
•
Supreme Decree Nbr. 685, Basilea Agreement for the Control of Inter-frontier Movements of
Dangerous Residuals and their Disposal, (Official Gazette October 13, 1992)
•
Supreme Decree Nbr 48 of the Labour Ministry (under the process of modification)
• Supreme Decree (Navy) Nbr. 398, 1985. Pilot regulation (Official Gazette, 7 July 1985);
• Supreme Decree (Navy) Nbr. 364, 1980. Regulation on the dispatch and reception of ships (Official
Gazette, 27 July 1980);
• Supreme Decree (Health) Nbr. 263, 1985. Maritime Sanitation—air and immigration health
regulation (Official Gazette, 24 February 1986);
• Supreme Decree (Defence) Nbr. 374, 1983. Shipping agents regulation (Official Gazette, 4 July 1983);
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• Supreme Decree (Navy) Nbr. 153, 1966. Registration of personnel (Official Gazette, 11 March 1966);
• Supreme Decree (Defence) Nbr. 991, 1985. Jurisdiction of local Maritime Authority (Official Gazette,
27 November 1985);
• Supreme Decree (Navy) Nbr. 1, 1992. Regulation for control of water pollution (Official Gazette 18
November 1992);
• Supreme Decree (Navy) Nbr. 1,340, BIS , 1941. General regulation on the maritime policy for ships
and ports (Official Gazette, 14 June 1941);
• Law Nbr. 18,755 (Official Gazette 1 January 1989). Establishes rules regarding the organisation and
authority of the Department of Agriculture;
• Law Enforcement Decree Nbr. 292 contains the statutes of the DIRECTEMAR (1953);
• Supreme Decree (Economy) Nbr. 90, 1996. Regulation on security for the storage, refining,
transportation and sale to the public of liquid fuels derived from oil (Official Gazette, 8 August
1996);
• Labour Code, Chapter III: Labour contracts for port workers;
• Customs Regulations, Article 7 (Replaced by Law Nbr. 18,853, 1989);
• Law Nbr. 19,300, 1994 (Official Gazette, 9 March 1994). Environmental Law;
• Supreme Decree (Presidential General Secretary) Nbr. 30, 1997 (Official Gazette, 3 April 1997).
Regulation of the Environmental Impact Assessment System; and
• DFL Nbr. 1, 1995 (Official Gazette, 18 October 1995). Contains the composite text of Law Nbr. 19,366,
relating to the punishment of drug traffickers.
3.2
Regulatory bodies
Several state institutions are responsible for oversight of the port industry in Chile:
• Ministry of Transportation and Telecommunications (“Ministerio de Transporte y
Telecomunicaciones” or “MTT”): The MTT’s role is to determine transportation policy for the
country. Under the direction of the President of the Republic, the MTT regulates the activities of all
the Port Companies and the state railway company. Furthermore, the MTT regulates the personnel,
facilities and equipment of the transportation industries, and notifies the relevant authorities of any
problems with the Chilean transportation system.
• Ministry of Public Works (“Ministerio de Obras Públicas” or “MOP”): The MOP oversees, repairs,
maintains and operates public works. The Port Works Department (”Dirección de Obras Portuarias”), a
division of the MOP, has certain responsibilities for the regulation and approval of projects, the
construction and implementation of port, maritime and river facilities, and the dredged depths of
waterways.
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• National Customs Department (”Servicio Nacional de Aduanas”): The principal functions of the
Customs Department are to supervise and control the movement of merchandise through Chile’s
coastal areas, borders, ports and airports and to control cross-border traffic for the purpose of
collecting taxes and duties. Agents and companies authorised to receive and transport merchandise
within customs areas are subject to the jurisdiction and control of the Customs Department.
• Department of Agriculture (”Servicio Agrícola y Ganadero” or “SAG”): SAG oversees the safety of
agricultural products entering the country and avoids the introduction of products that may
adversely affect animal or vegetable health. The National Director of SAG recommends to the
Minister of Agriculture which ports should be used for the import of agricultural products.
3.3
Exporting and importing
Customs Warehouses
According to the regulations of the National Customs Department, all merchandise presented to
Customs (typically imported merchandise) must be kept in a customs warehouse until it clears customs.
Customs Agents
The dispatch of merchandise through customs may, by law, only be performed by customs agents by
law, save exceptions determined by law.
Documentation
Documents required for the import or export of merchandise generally include an import register, a
commercial invoice and a bill of lading or airway bill. Except in special cases, the certification and
legalisation of bills of lading, airway bills or commercial invoices is not required. An importer must
present the required documents at the port of entry.
Importers are required to register imports with the Central Bank of Chile through an authorised
commercial bank. To register, the importer must submit a proforma invoice issued by the supplier or
the supplier’s authorised agents. Import registrations are generally processed within 10 days of
submission, and shipment must be made within 120 days from the date of their issuance.
A commercial invoice is required for air cargo or shipments to Chile. The invoice must clearly show the
FOB or FAS value, CIF value, unit price of each item, and the import and registration numbers for the
shipment.
The bill of lading must show total weight and total charges corresponding to the import registration.
3.4
Environmental regulations
The general environmental framework in Chile is set out in Law Nbr. 19,300. This law establishes the
basic structure of the Environmental Impact Assessment System (EIAS), the process for the enactment of
environmental quality and emission standards, environmental accident prevention and
decontamination plans, and general regulations on environmental liability.
The National Commission for the Environment (“Comisión Nacional del Medio Ambiente” or “Conama”),
and the Regional Environmental Commissions (“Corema”) are responsible for approving any
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Environmental Impact Assessment (“EIA”) or Environmental Impact Statement (“EIS”). In the process
of approving an EIA, these commissions may, at their discretion, impose additional obligations on or
require certain measures from a petitioner to restore, compensate for or mitigate possible environmental
impacts.
Chile’s environmental laws also include other laws, regulations, and international treaties dealing with
water, air and soil pollution and the transportation and storage of hazardous substances.
The following table gives an overview of the main environmental regulations relating to coastal and
oceanic waters in Chile:
Regulatory body
Legislation/Issuer
Scope of Authority
Supreme Decree Nbr. 476
(Ministerio de Relaciones
Exteriores)
Prevention of water pollution caused by
waste and other materials
DIRECTEMAR
Decree Nbr. 1
(Ministerio de Defensa
Nacional)
Prevention, control and remediation of
ocean, port, river and lake water pollution
Servicio de Salud
Decree Nbr. 263
(Ministerio de Salud)
Control of maritime and air health, as well
as immigration health (the health of persons
entering Chile)
-
Source: Comisión Nacional del Medio Ambiente
Details of the laws and regulations discussed in this section will be available in the data room.
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