At 23h20 on 22 September 2016, the fishing vessel A, owned by Fadáriopesca - Indústria de Pesca Lda (FIP), collided with the catamaran M, owned by Companhia Pescarias do Algarve (CPA). The A was returning from fishing. Its electric clutch failed to respond while it was berthing. It impacted with the starboard aft side of the M, which was already moored. There was no-one on board the M. The crew of the A secured the A to the M using steel cables to try to prevent the M from sinking completely. FIP's legal representative then contacted Pinguim Sub - Comércio de Material de Mergulho Soc Unipessoal Lda (PS) at 00h20 on 23 September, asking PS to intervene and refloat and secure the M. PS's team of divers refloated the M and removed the vessel to safety. This operation lasted about 19 hours. PS invoiced FIP for EUR 42,004.60 for its services. FIP passed PS's invoice on to its insurer, Mútua dos Pescadores - Mútua de Seguros CRL (MP). MP informed FIP that PS had not provided work that justified payment of EUR 42,004.60. MP agreed to indemnify FIP for EUR 29,093.00 in respect of PS's claim. MP also indemnified CPA for EUR 55,383.13 for the M's repair expenses.

PS sued FIP, claiming EUR 42,004.60 plus interest on arrears. FIP had MP joined to the proceedings, arguing that MP, rather than FIP, was liable. MP contended that it was not liable: (a) the collision was not due to wilful misconduct or negligence on the part of the crew of the A; (b) MP had indemnified the owner of the M (CPA) for the damages suffered by its vessel under the civil liability coverage of FIP's insurance policy, without having any legal or contractual obligation to do; (c) PS was hired by FIP, and MP did not have any involvement in this choice, nor had it accepted or approved the works and services allegedly provided by PS; and (d) MP informed FIP that it had not hired PS, and that the invoice for any services provided to FIP by PS should be issued to FIP, rather than to MP.

The Court of first instance partially upheld PS's claim, and ordered FIP to pay PS EUR 42,004.60 plus default interest. MP was found not liable. FIP appealed, and on appeal the judgment was amended, declaring FIP and MP jointly and severally liable to pay PS EUR 42,004.60.

MP appealed to the Supreme Court of Justice, arguing that PS's and FIP's agreement did not meet the legal requirements of a valid maritime salvage contract.

Held: Appeal dismissed.

The appellant MP contends that, in view of the proven facts, PS acted as a maritime salvor - in removing the danger that the M would sink - by carrying out a maritime salvage operation, defined in art 1.a of Decree-Law No 203/1998 [which adopts most of the provisions of the Salvage Convention 1989 into Portuguese law]. As a result of these salvage operations, PS (the salvor) would be entitled to receive an appropriate salvage reward (art 6 of Decree-Law No 203/1998) from the owner of the M.

That was not the understanding of the Courts below, who explained that the special legal regime of maritime salvage was not at stake here, but rather the legal definition of collision, which is regulated in arts 664-675 of the Commercial Code (CCom) [giving domestic legal effect to the Collision Convention 1910]. In fact, what essentially defines maritime salvage is the notion of 'danger at sea' and the identification of this danger, in accordance with the wording of art 1.a of Decree-Law No 203/1998. It is true that the rule in question does not provide a precise concept of danger at sea, referring to a case-by-case analysis, but evidential facts can prove the situation of danger (eg, the distress signals shown by a ship). From the factual analysis, what happened, relevantly, was a collision between two ships, an occurrence that gave rise to the provision of services invoked in the action, and an occurrence that, under the relevant legal regime, encompasses collision with a berthed vessel (see M Januário da Costa Gomes, Maritime Law, IV, 2008, pp 151 ff – art 664 CCom does not require the navigation of ships).

Likewise, the existence of a contractual relationship for the provision of services, entered into between PS, as provider, and the insured FIP, did not raise doubts in the Courts below. It is proven that, at the express request of MP's insured FIP, PS performed the necessary work to keep the M afloat. The price of the services, fixed by agreement between PS and FIP, was the requested EUR 42,004.60. FIP had an insurance contract with MP in respect of its civil liability as the owner of vessel A, covering, among other things, civil liability for damages caused to third parties, with a limit of EUR 1.2 million. This is not contested.

There is no doubt about the substantive legitimacy of PS's claim, since there is a situation of legal subrogation of PS into the rights of the injured third party, the owner of the M, in view of the fulfilment by PS of the refloating of the M. Subrogation occurs when the subrogee who has satisfied the obligation, 'for another reason, is directly interested in the satisfaction of the claim', in this case, the indemnity claim against the insurer MP. As for the contractual relationship that formed the basis of the action, FIP's request constituted a contract in favour of a third party. The responsibility of FIP and, consequently, of MP, does not originally lie in the provision of services agreed with FIP, but rather in the indemnification of FIP's civil liability towards a third party.

Was the collision fortuitous or culpable? Collision by a purely fortuitous accident or due to force majeure does not confer a right to compensation - see art 664 CCom. The regime of legal presumptions stems from art 350 of the Civil Code – whoever has the presumption in its favour is justified in proving the fact to which it leads; however, a rebuttal of the presumption may be made by proof of the opposite, unless the law prohibits it. Thus, the party benefiting from the presumption must only prove the basic facts, and the counterparty must prove the contrary. And so, by the first presumption stated, the defendant would only be responsible for proving the basic fact (the collision), and it is up to the plaintiff to prove the contrary, eg, that the collision resulted from the defendant not having observed the general navigation regulations and special port rules. By virtue of the second presumption, after the plaintiff provided the proof that was incumbent on it in the first presumption, the defendant would be responsible for proving the opposite, ie, that the collision was not due to its fault.

All things considered, the presumption of the cause of the collision in art 669 CCom applies: 'The collision is presumed to be fortuitous, except when the general navigation regulations and the special rules of the port have not been observed.' There is no doubt that the master of vessel A was in breach of the relevant regulations. In a berthing manoeuvre, where special care is required, it is not possible to collide with another ship already berthed and moored without violating the aforementioned generic legal safety obligations imposed on the ship in motion. The facts demonstrate that, had the A's manoeuvre (namely, the employment of the reverse gear) been carried out with the necessary advance timing, in relation to the other ships at anchor, damage would have been prevented. We are aware of the content of the Maritime Authority's conclusions that the collision was an accident, 'not appearing to be negligence on the part of the crew' and that 'the collision was due to a failure in the MicroCommander's processor'. However, we agree with the judgment under appeal in this matter – this fact (a failure in the MicroCommander) does not demonstrate that all the rules of care were observed in the approach to berthing, nor the duty to maintain the colliding vessel. Therefore, it has not been proven that the collision was not due to the fault of the master of the A.

Pursuant to art 604.1 CCom, the master's misconduct (barataria) excludes the insurer's liability. There is some divergence as to the interpretation of this concept, but, even if opting for the narrow concept of barataria (covering only the master's malicious behavior), art 604.1 CCom does not exclude the possibility of an agreement to the contrary. The agreement of the parties must be observed, above all, in insurance matters. Further, MP not only paid compensation to the owner of the M for the repair of damage caused by the collision, but also offered to compensate the insured for the value of PS's services, albeit in an amount lower than that invoiced. MP's conduct thus constitutes unacceptable contradictory behaviour - venire contra factum proprium - which is a species of abuse of legal rights.