Shipping 2024 Comparisons

The General Maritime Directorate (Dirección General Marítima – DIMAR) is the national maritime authority in Colombia, and was originally established under the name of the General Maritime and Ports Directorate (Dirección General Marítima y Portuaria) through Decree 2349 of 1971. The entity was subsequently reorganised through Decree 2324 of 1984 and has since maintained the basic structure provided by that regulation (which is still mainly in force).

The DIMAR is therefore the local authority that exercises port state control in practice, and executes the maritime sector policy designed by the Colombian government. As per Decree 2324 of 1984, the DIMAR is also entitled to investigate any maritime casualty occurring in Colombian waters and has specific jurisdictional functions regarding such accidents (collisions, groundings, etc). Its powers entitle harbour masters of each respective jurisdiction in the first instance, and the Central Level in the second instance, to determine the causes of the event and the liability of the vessels/persons involved.

It should be noted that there is no proper admiralty/maritime jurisdiction in Colombia. Thus, so-called wet shipping situations (collisions, groundings, etc) are dealt with by the DIMAR, as previously described; whereas contractual claims (mainly bill of lading claims and/or charterparty-related claims) are to be handled, if required, by the regular civil courts.

Colombia is a party to the Viña del Mar Agreement, under which the DIMAR is to exercise port state control, following general parameters set out by the International Maritime Organization (IMO) for that purpose.

The procedure for the registration of vessels at the domestic level was recently modified with the issuance of Law 2133 of 2021, which purports to make the country more interesting for international owners that could consider South American jurisdictions for registering ships. The new unified or “unique” national registry of vessels is kept in the country by the DIMAR. One of the most salient features of the new legislation is that a public deed will no longer be required for entering vessels under the Colombian flag.

There are no specific requirements for the ownership of vessels in Colombia. Even though Article 1458 of the Colombian Commercial Code originally established that only Colombian nationals were able to own commercial vessels registered under the Colombian flag, this provision was considered to be inapplicable by the Council of State. However, Law 2133 of 2021 establishes that contracts for the construction of vessels are to be registered in the Colombian “unique” registry.

Temporary or “provisional” registration (as it is called in Colombia) was recently modified by Law 2133 of 2021, with the aim of making the procedure much faster (three days after full documentation is provided, as described in Article 17). In accordance with Article 18, the certification of provisional registry will be valid for just six months. As per Article 10 of Law 2133 of 2021, dual registration is permitted (using the so-called provisional registration) only while procedures for cancellation of the original flag in a different State are carried out and the respective certificate of cancellation is provided.

The registration of mortgages on vessels is dealt with in Colombia by the DIMAR. As per Article 3 of Decision 487 of 2000 of the Andean Community of Nations, such a mortgage is to be created by means of a public deed and is to be registered in the respective ship registry in order to enable the effects contemplated in the international instrument. Article 5 of Decision 487 expressly provides details of what the public deed should contain for this purpose (the basic data of the creditor and the debtor, details about the amount of the debt that is to be guaranteed with the mortgage, etc).

Moreover, Articles 27 et seq of Law 2133 of 2021 refer to mortgages of vessels. Specifically, Article 28 of this local provision clarifies that mortgages of vessels of 500 gross tons will be dealt with in accordance with what is provided in Decision 487 of 2000, whereas the rest would be treated in accordance with the Commercial Code.

The DIMAR could issue a (previously requested) certificate of ownership (certificado de tradición y libertad) of any vessel entered in the Colombian flag register, in which a mortgage that has been established on the vessel would be evidenced.

Colombia is a party to both the Convention on Civil Liability for Oil Pollution Damage (CLC) and the Oil Pollution Fund (FUND) Conventions, in their 1992 amended versions. Thus, events of pollution arising out of accidents involving oil tankers transporting crude oil are to be dealt with mainly in the application of these international conventions. However, the country is also a party to the MARPOL Convention, so these parameters are usually available if an operational pollution incident occurs in Colombian waters.

With regard to wreck removal, the country has not yet ratified the Nairobi Convention and there are no domestic provisions in force that specifically address the subject.

As per Article 1473 of the Colombian Commercial Code, the armador is the person who sends a vessel to sea at their own expense and under their own name and risk, regardless of whether or not they are the registered owner of the vessel. Furthermore, Article 1478 establishes that the armador is to be held responsible (from a civil perspective) for the faults incurred by the captain, pilot and the crew.

However, Article 1481 of the Colombian Commercial Code clarifies that, in most cases, the armador could limit their liability, whether or not they are the owner of the vessel, to the value of the vessel, her accessories and freight.

Colombia is not a party to the Salvage Convention 1989. However, Articles 1545–1554 of the Colombian Commercial Code incorporate certain provisions that follow the basic logic of the York Antwerp Rules.

Colombia has not ratified the Convention on Limitation of Liability for Maritime Claims, 1976 (the “1976 LLMC Convention”). As mentioned in 2.2 International Conventions: Collision and Salvage, the Colombian Commercial Code provides that only in certain cases could the armador limit their liability to the value of the ship, her accessories and freight. There is currently no further local legislation that follows the parameters of the 1976 LLMC Convention.

Apart from those provisions contained in the CLC and FUND schemes, there are no specific provisions for the constitution of a limitation fund in Colombian law.

The Maritime Labour Convention MLC 2006 is not in force in Colombia. Thus, regular parameters of the domestic Labour Law apply.

Colombia has not ratified any of the existing international sets of rules on bills of lading. However, the Colombian Commercial Code has incorporated certain provisions that – to a certain extent – purport to follow the general logic of the Hague/Hague-Visby Rules. Nevertheless, important differences can be found, particularly regarding the limitation of liability of the carrier.

Usually, it is understood that, if a proper bill of lading was provided, the legitimate holder of the bill of lading would be the one entitled to present any claim against the carrier.

Articles 1643 and 1644 of the Colombian Commercial Code deal with the carrier’s limitation of liability, and state that the value of the cargo that has been declared to the carrier will be used as a maximum limit of liability. If the value was not so declared by the shipper, the limit would be the price of the goods at the loading port. However, Article 1644 goes on to establish that parties could agree on a maximum limit of liability, thereby entitling parties to establish a different limitation (see the Colombian Supreme Court of Justice’s decision of 8 September 2011, LJ William Namén).

The aforementioned provisions apply to the benefit of whomever is considered “the carrier”, whether they are the registered ship-owner or not.

Colombia is not a traditional maritime jurisdiction, so there is not very much case law on the subject. However, it should be noted that, as per Article 1615 of the Colombian Commercial Code, the shipper should guarantee the precision of the information provided to the carrier regarding marks, numbers, quality, quantity, condition and weight of the goods. Thus, a breach of that obligation could enable the carrier to bring a claim against the shipper.

There is no specific provision dealing with the time bar in the regulation of the contract for the maritime carriage of goods. Thus, Article 993 of the Colombian Commercial Code – namely, a provision of the general set of rules for the carriage contract – would be applicable. As per this provision, the time bar for filing a claim against the carrier would be two years, to be counted from the moment the goods have been delivered or should have been delivered to the consignee.

Colombia has not ratified any of the existing conventions on the arrest of vessels. However, Decision 487 of 2000 (namely, a regional instrument applicable in the Andean countries, including Colombia) deals specifically with “vessels’ preventative embargo” (embargo preventivo de buque) – ie, the “arrest” of vessels, as it is known, particularly in Anglo-Saxon jurisdictions.

Decision 487 of the Andean Community also deals with maritime claims (or “credits”, as the instrument calls them) and maritime liens. Maritime claims/credits are defined in Article 1 of Decision 487, following the logic of Article 1 of the International Convention on Arrest of Ships, 1999. Thus, damages and/or losses caused by the exploitation of the ship (No 1), and death or personal injury in direct relation to the exploitation of the ship (No 2), among others, would allow the “arrest” of the ship in Colombia.

However, even though the concept of a maritime lien itself belongs to Anglo-Saxon jurisdictions, Decision 487 also deals obliquely with the concept by making reference to certain “maritime privileges” that will follow the vessel, even if there is a change of ownership or flag, except in cases of forced execution of the ship (Article 22). Claims to be found among those “maritime privileges” include:

• those pertaining to crew wages, including repatriation costs, death or personal injury compensation claims emerging directly from the exploitation of the ship;
• those arising out of salvage rewards; and
• those arising out of port and navigation channel rights.

As per Article 37 of Decision 487, the logic of the instrument is to allow the “arrest” of a vessel whenever there is a maritime credit of the kinds described in Article 1. Moreover, Article 41 of Decision 487 essentially mirrors what is contemplated in Article 3.1 of the International Convention on Arrest of Ships, 1999, regarding requirements for the arrest to be permissible.

As per Article 1 of Decision 487 of 2000, a “maritime credit” (ie, a claim that could be used to “arrest” a vessel) would be a credit/claim that would have as its cause (No 12) bunkers supplied to the ship for the exploitation, management, conservation or maintenance of the vessel. Thus, it seems at least theoretically possible to arrest a vessel in Colombia as a consequence of such an event. However, the provision does not clarify who is to be the owner of the bunkers and/or the party that provided/ordered that service.

The specific documents that should be presented are to be determined on a case-by-case basis. However, the likelihood is that a power of attorney and a certificate of incorporation (or similar), duly apostilled, will be required if the documents are coming from abroad. Other documents that could be provided to evidence the maritime claim/credit that is being alleged to promote the “arrest” should also be handed over to the court, so that the court can assess the claim properly.

Before the COVID-19 pandemic, any such supporting documents were likely to have been presented in their original form. However, due to the enactment of Decree 806/20 as part of the measures adopted by the government to deal with the pandemic in domestic courts (now converted as permanent legislation under Law 2213 of 2022), any such documents should now be provided in copy and/or sent by email to the respective court.

It is important to know that, for the “arrest” order to be granted by the domestic court, security should be provided by the arresting party, following the parameters contained in the General Procedural Code.

Decision 487 refers to the “arrest” of the vessel only, and not to the arrest of bunkers and/or freight. However, it is theoretically possible to request a measure of this nature at some point, not under Decision 487 of 2000 (which only refers to the arrest of a “vessel”) but under Colombian general procedural law if certain requirements are met.

In fact, Article 590 lit c of the Colombian General Procedural Code opens up the possibility of obtaining “any other measure” that the court could find it reasonable to provide in order to protect the right being litigated and to avoid its infraction, or to ensure that the effectiveness of the claimant’s petition is secured.

Decision 487 of 2000 expressly provides that sister-ship arrest is possible. For that purpose, Article 42 of this international regulation mirrors what is provided in Article 3.2 of the International Convention on Arrest of Ships, 1999.

Article 72 of Decree 2324 establishes that any vessels involved in maritime accidents that are to be investigated by the DIMAR would need to provide security for any damages, fines and costs of the procedure before they are authorised to set sail by the respective harbour master. In practice, this is a different path that could be used to obtain security for maritime claims.

As per Article 44 of Decision 487 of 2000, any vessel that has been “arrested” (by a proper judge/court) could be freed whenever security has been provided in a satisfactory manner. Letters of Undertaking (LOUs) could be accepted in arrest procedures whenever there is agreement by the parties for that purpose. If not, a bank guarantee or an insurance policy would be usually required.

There is no local legislation that deals specifically with the judicial sale of ships in Colombia; Decision 487 of 2000 merely provides some provisions on the subject. Article 29 of Decision 487 is more important, as it provides for a notification of the judicial sale to be effected to certain specific persons, at least 30 days in advance. However, Article 1454 of the Colombian Commercial Code points out only that the judicial sale of a ship will follow the parameters set out in the General Procedural Code, and that the sale will be announced with notices located in visible parts of the ship and in the respective harbour master’s office.

Colombia has a regulation that is analogous to Chapter 11 of the United States Bankruptcy Code, contained in Law 116 of 2006. From the perspective of this regulation, the debtor that is carrying out an insolvency procedure would not be able to provide warranties outside the insolvency procedure. Moreover, a court other than the one carrying out the insolvency procedure would not be in a position to order the judicial sale of the vessel.

There are no clear cases that address this issue. However, at least theoretically, compensation could be ordered under specific circumstances, since Article 51 of Decision 487 provides that the courts of the country in which the “arrest” has been effected would be competent to decide on the liability of the creditor regarding damages caused as a consequence, in particular but not exclusively, of the arrest being held to be illicit or unjustified, or of requesting excessive security (thereby mirroring what is provided in Article 6.2 of the International Convention on Arrest of Ships, 1999).

Colombia has not ratified the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea and/or its protocol. There are only certain specific provisions in the Colombian Commercial Code that deal with the subject, in a very general way. Articles 1585–1596 provide some rules for dealing with the liability of the carrier in cases of the cancellation of the trip, or its delay or interruption due to force majeure causes.

It should be noted, for instance, that Article 1592 establishes that, in the event of the cancellation of the trip, a claim for compensation would proceed unless the carrier is able to prove the “extraneous cause” (ie, an institution similar to force majeure), in which case the carrier would only need to give back the amount received as the price paid by the passenger. Moreover, the provision goes on to state that, if there is a justified motive for cancelling the trip, the carrier’s compensation would not be in an amount in excess of double the price paid by the passenger.

Article 1596 also provides some guidance regarding the liability of the carrier regarding loss and/or damage of luggage, thereby providing that the carrier’s liability would be up to the declared value of the luggage; if there is no such declaration, it would be up to 10 grams of pure gold per kilo, unless force majeure is actually proven. However, it clarifies that the carrier would not be responsible for looting if the luggage had not been properly secured/closed.

The time bar for the submission of any action against the carrier was not provided in this set of rules but, due to a remission contained in the Code, a provision from the general contract of carriage would be applicable. Thus, as per Article 993 of the Colombian Commercial Code, the time bar will be two years from the moment the trip concludes or should have ended.

The position of the local courts regarding the recognition and enforcement of law and jurisdiction clauses in bills of lading has been somewhat ambiguous, and there is room for academic debate on the subject.

From a general perspective, it could be said that jurisdiction clauses have not usually been recognised by local courts, for local procedural law reasons. Regarding choice-of-law clauses, arguably the trend is for Colombian courts to apply local law parameters (ie, those of the Colombian Commercial Code) as opposed to parameters contained in the terms of the bill of lading.

However, as previously stated, the situation is currently evolving. Some recent case law/local doctrine suggests that, depending on the specific clauses used and/or the specific context of the claim, there could be room for recognising that such clauses should be given full validity and force under Colombian law.

The situation is somewhat different if the matter is to be taken to arbitration, since Colombian law on the subject (Law 1563 of 2012) addresses the subject in that specific context and expressly recognises the validity of this type of clause.

There is no sufficiently developed case law on this specific issue that can provide full guidance for future cases. However, the courts usually give effect to the situation in which the contract incorporates – at least in part – the content of a contract by using a remission to another contract/document. In any case, the points raised in 6.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading should be taken into account.

Colombia has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, which has full effect in Colombia. Some additional provisions on the subject are provided in Law 1563 of 2012, specifically regarding the domestic procedure for the recognition and execution of foreign arbitral awards.

Article 38 of Decision 487 basically mirrors what is contained in Article 2.3 of the International Convention on Arrest of Ships, 1999. In that regard, it is clear that a vessel could be arrested in Colombia, despite the fact that, by virtue of a jurisdiction and/or arbitration clause contained in a different contract, the maritime credit/claim should be adjudicated and/or established by a different jurisdiction, even if in the application of a different law, and/or by an arbitral tribunal.

There is currently no domestic arbitration institute. However, some recognisable names in the field of maritime law are currently members of the different arbitration centres established by chambers of commerce across the country.

Such remedies should be assessed on a case-by-case basis. However, a lack of jurisdiction of the Colombian courts could eventually be alleged, as well as the existence of an arbitration clause, if any. In that regard, it should be noted that such situations are to be considered as “preliminary exceptions” within the Colombian traditional civil procedure. Given their nature, those exceptions are given priority by the judge in respect of the decision to be provided on the merits of the claim.

Law 2133 of 2021 created a special tax treatment (tariff) for income resulting from international maritime service rendered by vessels entered in the Colombian “unique” registry. Under Article 30 of this law, the new special tariff for that service is only 2%.

In the context of the COVID-19 pandemic, a number of special measures were put in place in the country with regard to maritime activities. Originally, measures were quite restrictive; however, over time they have been moderated according to public policy on the subject, as designed by the national government, the evolution of the virus, the occupation of hospital beds and other relevant factors. The DIMAR then issued Resolutions Nos 0113-2020, 156-2020, 275-2020 and 484-2020, restricting certain maritime activities and closing border crossings, among other measures.

Resolution No 0871-2020 includes some of the measures established in previous resolutions, such as a special procedure for the arrival and stay in port of international traffic vessels. It is also established that maritime activities are permitted as long as they are carried out under the control of the National Maritime Authority and are always in strict compliance with bio-security protocols. Additionally, in places of high COVID-19 infection, harbour masters were given the ability to temporarily restrict the exercise of maritime activities that involve the agglomeration of people and that could pose a threat to the safety or protection of the health of the zone’s inhabitants.

Lastly, Presidential Decree No 039 of 2021 closed the land and river borders with Panama, Ecuador, Peru, Brazil and Venezuela, from 16 January 2021 to 1 March 2021, except for cargo transportation and other specific activities.

Force majeure is a concept that is usually recognised by the courts, following the approach that civil law countries usually have regarding that legal institution. Thus, local courts usually recognise that an event must consist of at least two conditions in order to constitute a force majeure: it must be unforeseeable, and it must be unavoidable. It is doubtful whether the pandemic itself could still be considered an event of “force majeure” at this point, since in most cases the situation would no longer be seen as unforeseeable.

As Colombia is a civil law country, the concept of “frustration” is not a familiar one in Colombian law. However, Colombian law has an institution that could be deemed to have some similarities or points in common with that category of law, known as imprevisión. That legal remedy is contemplated in Article 868 of the Colombian Commercial Code, which establishes that one of the parties could request the revision of the contract whenever unforeseen and extraordinary circumstances occurring after the conclusion of a contract (a contract of which the execution is to be projected in time) have altered its obligations, rendering them “excessively onerous”.

MARPOL Annex VI is not yet applicable in Colombia.

In any case, it is worth mentioning that Law 1205/08 demands that any means of transport using diesel uses less than 50 parts per million of sulphur. Sanctions for not complying with this provision are contained in Resolution 180689 of 2010 of the Ministry of Mining and Energy.

Colombia has not yet incorporated any of the international trade sanctions into domestic law, nor recognised them at a domestic level, but it has co-operated with several governments (specifically the US government) regarding information exchange. Local companies and individuals have been included in certain restrictive lists whenever links are found between the company (and/or its partners, directives, board members, etc) and illegal activities (particularly money laundering).

It is important to note that Colombian law on maritime subjects has usually been dispersed, and that it is very old-fashioned in various aspects. In light of this, the national maritime authority, the DIMAR, has been working on preparing a Draft Maritime Code in recent years, which is now in its sixth version.

Some key features of the Draft Maritime Code in its current version are as follows:

• the Draft purports to unite the majority of regulations applicable to “maritime activities” into just one body of law;
• key “maritime law principles” are expressly contained therein;
• some provisions of the international conventions are replicated/incorporated into the text of the Draft;
• offshore activities are regulated to a certain extent, including the liability of the operator of the platform;
• limitation of liability of the ship-owner follows the parameters of the 1976 LLMC Convention (adopting the 1996 Protocol increased limits);
• the Draft adopts the fundamental logic of the Hague-Visby regime regarding the liability of the maritime carrier of goods; and
• basic regulations applicable to procedures in cases of maritime accidents are clarified.