This was an appeal brought by the appellants, Maritima Celia SL, Naviera Pinillos SA, and Banco Vitalicio de Espania, Cia de Seguros y Reaseguros (Vitalicio), against a judgment of the Court of first instance ordering them to indemnify the respondent, Limarko Shipping Co AB, in the amount of EUR 17,520.20. This case arose out of a collision. The Court of first instance attributed 80% of the responsibility for the incident to the appellant interests in the Macarena B, and 20% to the respondent interests in the Astra, concluding, consequently, that those responsible for the Macarena B must pay EUR 127,802.14 (80% of the proven damage of the Astra), and that the respondent must compensate in the sum of EUR 110,281.94 (20% of the proven damage of the Macarena B); therefore, those responsible for the Macarena B remained as net debtors and were jointly and severally liable to pay the respondent EUR 17,520.20.

Held: Appeal dismissed.

As for the appeal arguments relating to the apportionment of the faults of the vessels, and the appropriateness of fixing that of the Astra at 66.66% (two thirds) at least, instead of the 20% fixed in the judgment at first instance, it must be taken into consideration that, in cases such as this, the regime of the Collision Convention 1910, which Spain ratified on 17 November 1923, is applicable. The Convention regime is assimilated to the civil regime of non-contractual liability, based on liability for proven fault, without presumptions of fault (art 6). In the event of common fault, the responsibility of each of the ships will be proportional to the seriousness of the faults committed respectively (art 4), with the responsibility being based on the fault actually committed (art 3). There will be no apportionment if the collision is fortuitous or of undetermined cause (art 2).

When both parties are at fault, the behaviour of both parties affects the risk of harm, and the level of activity and care of one party depends on the other, unlike unilateral accidents, in which the victim's behaviour is irrelevant. When both vessels are underway, the totality of their own conduct is attributable to each one; and, as regards the attribution of the result, in the Convention it is necessary to abide by a rule of pure comparative responsibility or distribution of fractions of the damage, taking into account concurrent faults. Article 4 of the Convention cited establishes that if fault is common, the responsibility of each of the ships will be proportional to the seriousness of the faults they have respectively committed; however, if according to the circumstances, it is not possible to establish the proportion, or if the faults appear to be equivalent, the responsibility will be divided equally.

It was duly proven in the proceedings that the Macarena B violated several COLREGs, including rr 5, 6, 8, 15 and 16. It was also proven that the Macarena B did not wait for the mandatory pilotage service, and made the entry into the port at night with an inadequate trajectory. The Astra violated rule 17 of the COLREGs. The apportionment of blame of 80% for the Macarena B and 20% for the Astra was properly based on all the evidence, especially in the expert reports. The former vessel's conduct was very serious, while the conduct of the latter vessel was much less relevant in the production of the incident; although an infraction of the COLREGs, an excess of confidence, and a certain delay in reacting were proven.