This was an appeal against the judgment of the Court of first instance for EUR 91,028 against the appellant, the owner of a Spanish fishing trawler which collided with the respondents' French yacht, which was sailing towards the Balearic Islands.

Held: Appeal dismissed.

According to the Law on Maritime Navigation (the LNM), the regulation of navigation accidents is determined by means of a reference to the Conventions that regulate this matter in collision cases. Navigation, to the extent that it transcends borders, requires an international legal regime. Here, the collision occurred between two vessels of different nationalities, which would place before the Court a conflict of laws problem, as there are great differences between the domestic collision regulations in different States.

Regarding uniform and comparative law, the Comité Maritime International was in charge of preparing the international text on collisions at sea that was finally signed in Brussels on 23 September 1910, becoming the Collision Convention 1910. As to the relationship between the regulations on collisions contained in the Commercial Code and that established in the aforementioned Convention, it is necessary to point out that the ratification of the international text carried out by Spain did not imply the repeal of domestic legal regulations, or the replacement of domestic law under international law. Therefore, we find the co-existence in Spain of two different regimes in terms of approach where the treatment of fault differs in both systems. It is important to point out that the same regulations apply to pleasure boats as to commercial vessels or fishing trawlers, since Spanish legislation considers them all to be vessels.

The judgment in STS 28 September 2005 (RC 769/2005) (CMI411) stands out because, when examining a case of liability for collision, differentiating its different classes, it declared that, without prejudice to the provisions contained in the Collision Convention 1910, which are part of the Spanish legal system and are directly applicable, domestic legislation is applicable, to the exclusion of any other, when the ships involved are of Spanish nationality, and the collision occurs in Spanish jurisdictional waters.

France and Spain have both ratified the Collision Convention 1910, so it is applicable, excluding the domestic legal systems of both countries, since art 12 provides: 'The provisions of this Convention shall be applied as regards all persons interested when all the vessels concerned in any action belong to States of the High Contracting Parties, and in any other cases for which the national laws provide.' Consequently, the COLREGs 1972 apply.

It should be remembered that art 6 of the Collision Convention 1910 prohibits establishing presumptions of fault. In the present case, it is not possible, therefore, to presume that the appellant's motorised fishing trawler was responsible for the collision with the respondents' yacht of smaller dimensions which was under sail. However, taking into account the evidence, the conclusion reached by the Court of first instance, in so far as it assigns the fault for the collision exclusively to the skipper of the fishing trawler, is correct. We are not dealing with a 'shared or common fault approach', in which responsibilities must be graded in proportion to the degree of fault attributed to each ship, and this can be deduced from the first and main statement of the skipper of the fishing trawler, in which he acknowledged that he was facing the sun, that the waves did not allow him to see straight ahead, and that his radar system did not allow him warning of yachts. It is clear that extreme caution should have been exercised, not only due to the weather conditions, but also due to the technical characteristics of the radar, especially when navigation occurred in the middle of summer and in an area frequented by abundant pleasure boats, not only Spanish but also French-registered, given the proximity of the destination port of the fishing trawler to France, and on a route frequented by sailors to the Balearic Islands.

The violence of the collision, with the consequence of the yacht's immediate sinking, are clear proof that the skipper of the fishing trawler blatantly failed to comply with his duty of good seafaring.