Supreme Court Rules on National Both-to-Blame Collisions

Santi Zabaleta Llorens.

09/06/2010 International Law Office

Supreme Court Judgment 742/2009, issued on November 18 2009, concerned an accident involving the Gema B while berthing at the port of Barcelona. At the time of the accident, the ship was being assisted by tugs fore and aft and the captain was receiving assistance from the onboard pilot.

The first element in the chain of events leading to the accident was the breakage of the head tug line; the lower courts regarded this as a breach of the duty of care by the tug owner. As a result of the break, the Gema B went astern abruptly and collided with the tug at that end. The tug could not stop the movement of its tow backwards because cables from several small boats moored nearby fouled the propellers; in addition, this lack of propulsion caused the tug to hit the small boats. The Gema B collided with a moored barge and with the scaffolding supporting a barge under repair. The lower courts also found the owners of the small craft hit by the tow and one of the tugs to be contributorily negligent, as they lacked the administrative authorizations required to be kept there and the owners had failed to notify the mooring to the port authority.

Having regard to these facts, the Supreme Court rejected the appeal and upheld the dismissal of the claim brought against the pilot and the ship owners by the owners of the damaged boats and their insurers. This dismissal was based on the rules set out in the Commercial Code regarding civil liability resulting from collisions (Articles 826 and following), which applied instead of the 1910 Convention for the Unification of Certain Rules of Law with respect to Collisions Between Vessels, due to the fact that all ships involved had Spanish flags and the collisions took place in Spanish waters. Specifically, according to Article 827 of the Commercial Code, when all the ships involved in a collision are at fault, each must bear the costs of its own damages.

In reaching its decision, the Supreme Court provided some valuable clarifications on the law. First, for the purposes of collision liability, the concept of a ship comprises not only craft with an ability to navigate, but also floating devices capable of being moved. What Spanish case law has excluded from the rules on civil liability arising from collisions is where a ship hits a fixed object such as a pier or a rock.

Second, following a Supreme Court judgment of July 3 2008, the concept of collision extends to those cases where there has been no direct physical contact between the ships - an issue which is regulated in the 1910 convention, but not expressly in the Commercial Code.