New Civil and Commercial Code – the shipping and transport perspective

Introduction

A new Civil and Commercial Code entered into force on August 1 2015, which governs civil and commercial matters in Argentina. In this context, Argentine law – which follows the civil law system – has replaced the Commercial Code (1859) and the Civil Code (1869). The new code makes improvements to Argentina’s legal framework, particularly in the fields of family law and consumer law. However, the reform does not appear to be straightforward from a shipping and transport law perspective. The Navigation Act (20,094/73) was not affected and remains separately binding to the code, as does the Aeronautical Code (17,285/67).

Contract of transport

The code introduces a new chapter that addresses the contract of transport applicable to the carriage of goods and passengers. The chapter primarily endeavours to set out general principles and rules. While these principles appear to cover any contract of carriage – whether by land, air or sea – the drafters expressly excluded contracts that are governed by a special law. The Navigation Act and the Aeronautical Code were not affected by the new Civil and Commercial Code. From a shipping perspective, the chapter will be triggered only where the Navigation Act or the Aeronautical Code is silent and a potential issue cannot be resolved by means of analogy with another rule from the same legal framework. Therefore, the chapter constitutes a secondary source to the Navigation Act and the Aeronautical Code.

Comment

Some of the principles set out in the new code – in particular, regarding the carrier’s liability – are slightly different from the rules in the Navigation Act and the Aeronautical Code, as the new code follows a strict liability criterion rather than a personal liability system. However, the application of the new code is not incompatible with the Navigation Act. Argentina is a party to the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading 1924 (the Hague Rules), which follows the personal liability criterion. The Hague Rules are fully applicable and supersede the new code in accordance with Section 22, Article 75 of the Constitution. As a result, there is no reason to trigger the principles set out in the new code with regard to the liability regime.

The carriage of passengers by sea is fully covered by the Navigation Act and the Athens Convention 1974 – but not the 2002 protocol – provided that neither the passenger nor the carrier is Argentine, in which case only the Navigation Act applies.

The code tackles contractual issues only. Any other liability raised by a non-contractual source will remain exclusively governed by the Navigation Act and corresponding international treaties.

As regards subrogation and recoveries, there are no new rules. However, it is worth mentioning an innovation which can be found in Article 1810 governing letters of indemnity with express reference to traders (importers-exporters) and insurers.

In practice, the new legislation will not result in major changes in the maritime sector. The new code contains express provisions which entitle contractual parties to make a choice of law (Article 2651) and conclude jurisdiction agreements overseas (Article 2605).

Despite some reservations regarding the new code, it could be said that the maritime legal framework has retained its autonomy in Argentina.