The appellants were aggrieved by the judgment of the Court of first instance which rejected their application for the arrest of the Clipper Kylie on the ground that the exclusive fault for the collision in which the appellants were involved must be attributed to the tugboat Cavalier VII. The Court held that this finding prevented extending the joint and several liability that art 360 of the Law on Navigation attributes to ships with concurrent responsibility for collisions. In this case, the appellants' claims derived from the personal injuries which they suffered during the navigation of the ship Polaris, on which they performed functions as employees.

The appellants alleged that arts 174 and 177 of Law 20,094 allowed recourse to art 1113 of the Civil Code to attribute responsibility to Operadores Marítimos y Fluviales SA, the operator of the Polaris at the time of the incident and the appellants' employer. They invoked Law 9688 on employment contracts.

Likewise, they based their application for ship arrest on the provisions of the Law on Navigation that grant a maritime lien to their personal injury claims (art 476(e)), allow the arrest of a ship in case of collisions (art 536), and extend this measure against any another ship of the same owner (art 532).

Held: Appeal dismissed. The decision of the Court of first instance is confirmed.

The appellants are incorrect when they maintain that the Judge has carried out a prejudgment of the attribution of fault by indicating that the collision occurred because of the Paraguayan ship Cavalier VII. From a reading of the contested judgment, it is clear that the Judge found that the appellants 'state that the fact of the collision that they describe in the initial brief, is attributable to the exclusive fault of the command of the Cavalier VII tugboat'. That is to say, the Court made an assessment about the greater or lesser credibility of the legal position, taking into account the arguments of the appellants that made up the factual and normative context of their cause of action.

This particular circumstance excludes the possibility of any analysis other than one which applies the specific regime of the Law of Navigation for the alleged collision in question, and on which the appellants built their initial claim. This is not modified by the mere theoretical invocation of responsibilities in the field of common law or labour law; in which case it would be necessary to determine and assess the conduct of the victims who claim as employees of the ship.

In the same sense, the specific regulations relating to collisions were those that laid the foundation for the path travelled by the appellants from the cause of the action to the alleged arrest of another defendant's vessel. Article 359 of Law 20,094 provides that if the collision is caused by the fault of one of the ships (and a contrary theory has not been put forward until now) the guilty party must compensate for all the damages produced.

Whatever the scope intended to be given to the second para of art 360 of the aforementioned law, the truth is that solidarity (joint and several liability) to respond for damages due to collisions resulting in death or personal injury is provided for in cases of fault of concurrent cause, that is, with the intervention of more than one responsible person. For this reason, and without prejudice to further modifications that the Judge may consider ordering based on new elements that could be added to the process, given the essential changeability and provisional nature of rulings related to precautionary measures, this Court rejects the appellants' claims.