On 29 August 1986 there was a collision between the sailing yacht J belonging to the plaintiff Y and the sailing yacht H belonging to the first defendant E and controlled by its master, the second defendant Harald E, during the fourth race for the R Cup in Sardinia. The plaintiff sought compensation for the damage caused by the ship collision and argued that both the master of the J and the master of the H had recognised from a distance of about 100 m that if they maintained the respective courses of their yachts there would be a collision. The yacht H had the wind from port, the yacht J from starboard. According to r 36 of the International Yacht Racing Union (IYRU) the yacht of the plaintiff had right of way over that of the defendant. The second defendant, as the master of the H, indicated by hand signals that he would take evasive action. However, H initially maintained its course in the direction of J, obviously in order to lose as little space as possible and to avoid the right of way of J as close behind the stern as possible. This led to the collision.

The Court of first instance upheld the claim of the plaintiff against the defendants. The Court took the view that art 3 of the Collision Convention 1910 provides that if the collision had been caused by the fault of one of the vessels, liability for the damage attaches to the vessel that is at fault. The fault lay with H because it violated r 36 IYRU. On the basis of this rule, H should have plotted its course in such a way that an obstruction or danger to J was prevented. H could not rely on the excuse of the presence of a wind gust because the wind was strong and gusty from the beginning, so gusts should have been expected.

The question of which persons could be held liable for their own fault or that of others is left to national law by the Convention. According to § 48(1)(1) IPRG [Private International Law Act], non-contractual claims for damages are to be assessed according to the law of the State where the behaviour causing the damage was carried out. Having regard to the registration of both ships involved in the accident in the UK, however, there was a stronger relationship with English law, so that according to § 48(1)(2) IPRG that law was decisive. According to English law, both the master or helmsman (ie the second defendant) and the owner of the ship (ie the first defendant) were liable.

The Court of Appeal confirmed this decision. The Court of Appeal also took the view that the Convention was intended to apply certain rules on the collision of ships in a uniform manner. Austria as well as the UK and Italy were contracting States of this Convention. The Convention did not contain a restriction that it was inapplicable to sporting collisions under competitive conditions. According to art 3 of the Convention, in the event of a collision due to the fault of one of the vessels, the vessel that was at fault was liable for the damages. The fault of a ship should be understood to mean any causal fault on the part of one of the ships. In any case, this included the fault of the crew, ie the second defendant as master. The fault of the second defendant and the crew lay in that, despite the possibility of choosing another route or another speed, he had not prevented the collision. The second defendant was obligated to design an evasive manoeuvre in such a way that he could avoid a collision even if a gust of wind occurred, which was to be expected in view of the weather conditions at the time. Although associated hazards are typically seen as a permitted risk in sports that are practiced in the community, violations of competition rules which serve to prevent significant damage constitute fault-based behaviour.

However, the Court of Appeal disagreed that the Convention leaves the question of which persons can be held liable for their own fault or that of others to national law. The fault of the 'ship' within the meaning of art 3 of the Convention includes not only the fault of the crew, but also any causal fault on the part of one of the ships, including that of the shipowner. It cannot be inferred that art 3 of the Convention means that the word 'vessel' is only intended to designate those persons who (as third parties) are capable of bringing about the liability of the shipowner.

Held: Revision is permissible, but not justified.

Under the appeal ground of incorrect legal assessment, the defendants are of the opinion that the Convention cited by the lower Courts should not be applied to sporting, competitive ship racing. Rather, the law of the place of the delict, ie Italian law, is decisive for the assessment of non-contractual claims for damages. The registration of the ships in the UK was to be regarded as accidental, so that there was no stronger relationship with English law. However, should the Collision Convention 1910 be applicable, a subsidiary connection according to § 48(1) IPRG would have to be made because the Convention only speaks of the 'fault of one of the vessels'.

The fault of the second defendant is also denied and the objection is made that the damage occurred during a competition; in the case of sports practiced in the community, associated hazards are typically to be regarded as a permitted risk. In the present case, it should also be borne in mind that not only people but also forces of nature such as wind and waves, which cannot always be precisely calculated, are involved. The only cause of the accident was a sudden gust of wind and the resulting unstable ship for a short time. The second defendant basically did everything possible to avoid the plaintiff's yacht.

These statements cannot be accepted.

According to § 53 IPRG, provisions of intergovernmental agreements are not affected by federal law. These intergovernmental agreements also include the Collision Convention 1910. The Convention generally regulates the liability for the participation of ships of different nationalities if damage occurs through collision or remote damage. The Convention is only inapplicable if:

a) warships or State ships dedicated exclusively to public services are involved;

b) Ships that do not belong to Contracting States, unless reciprocity is guaranteed, are involved; or

c) if all parties involved belong to the same State as the Court dealing with the matter.

Since in this case ships of different nationalities were involved in the accident and the reasons just mentioned for the inapplicability of the Convention do not exist, the Convention must be used as the basis for assessing the claimant's claims for compensation. According to art 3 of the Convention, if the collision was caused by the fault of one of the ships, compensation for the damage is incumbent on the ship that is at fault. The fault of one of the 'vessels' is to be understood as any causal fault on the part of one of the ships (BGH [Federal Court of Justice], IPRAX 1981, 99). In the present case, this means that the first defendant as the shipowner (§ 484 HGB [Austrian Commercial Code]) is liable in the case of the fault of the second defendant master in the collision that caused damage to the claimant. The Convention does not say what counts as fault, but this can be assumed without a doubt if competition regulations to which the participants have submitted and which serve to prevent significant damage are not observed. Participation in a race does not in any way entitle the master to violate the adopted competition rules or to disregard their duty of caution and attention. If the second defendant did not sufficiently observe r 36 IYRU, which stipulates the right of way on crossing courses, this is also to be blamed on him as a fault. The appeal to a sudden gust of wind fails because there was already strong and gusty wind at the start.

Therefore, the lower Courts correctly affirmed the liability of the first defendant shipowner due to the fault of the second defendant master in the collision.

The Convention only regulates the question under which conditions the shipowner is liable for collision damage. The liability of the crew member guilty of the collision (in the present case the master) is not regulated in the Convention. The 'vessel', which is responsible for the compensation of the damage according to art 3 of the Convention, is to be understood as the shipowner, but not the crew member who is responsible. The contrary does not result from the decision of the BGH, IPRAX 1981, 99, cited by the Court of Appeal. In the legal dispute on which this decision is based, the shipowner was sued, but not the master. It was stated in this decision by the BGH that the defendant shipowner is also liable under art 3 of the Convention to the extent of its own fault. The fault of one of the ships within the meaning of art 3 of the Convention includes any causal fault on the part of one of the ships, including that of the shipowner. However, the question of the liability of the crew member responsible cannot be assessed under art 3 of the Convention.

In the absence of the applicability of the Convention to the claim for damages asserted against the second defendant, the question of the applicable law in this respect must first be clarified. According to § 48(1) IPRG, non-contractual claims for damages - as asserted here by the plaintiff - are to be assessed according to the law of the State in which the behaviour causing the damage was carried out. However, if the parties involved all have a stronger relationship with the law of another State, that law is decisive. Although there are different doctrines about the details of the escape clause of § 48(1)(2) IPRG, 'any' stronger relationship is not sufficient. Rather, one is required in which the factual relationships to the law of the other State for both parties predominates to such an extent that the relationship to the place of the delict appears comparatively incidental and random (Schwimann, op Rz 5a to § 48 IPRG with further references). Contrary to the view taken by the Court of first instance, there is no such predominant relationship with English law for the plaintiff and the second defendant. For the second defendant in particular, the registration of the two ships in the UK is more of a coincidence, so that the law of the place of the delict has to be taken into account. Since the accident occurred in Italian waters (see Neuhold-Hummer-Schreuer, Austrian Handbook of International Law I2, RZ 1955 f; Verdross-Simma, Universelles Völkerrecht 3, § 1071), the claim for damages brought by the plaintiff against the second defendant is to be determined by Italian law. According to art 2043 of the [Italian] CC, any deliberate or negligent act that causes unlawful damage to another obliges the person who committed it to pay compensation. With regard to the infringement of the property of the plaintiff through the fault of the second defendant, the lower Courts rightly affirmed the claim for compensation against the second defendant. The appeal is thus unsuccessful.