In this collision claim the plaintiff, the fishing company Tramar SA, filed a lawsuit against the defendant, Vieira Argentina SA, as the shipowner of the fishing vessel Alvamar VI (A) and against the master and the fishing first officer of the vessel, claiming USD 393,466.65 as damages caused by the sinking of the vessel Virgen de la Bella (V).

On 5 May 1998, between 16h30 and 16h45 V was sailing adrift near Cabo Blanco at the Santa Cruz Province in good weather conditions while the crew members were engaged in fishing activities. A was also sailing in the same area, operated manually, heading 270° and at a speed between four to eight knots, with the sun in front. Without changing course, A collided with V with its bulbous bow at the center of the starboard side near the bridge, allowing the water to enter into the hold of the first floor and to the engine room. Before the collision, the master of the V did what was possible to avoid the collision by trying to communicate by radio with A, with no success. As last resource, the engine was set to all ahead while shouting to attract the crew members' attention on A.

However, the fishing first officer in charge at the bridge of the A did not comply with the required watchkeeping duties, giving unacceptable excuses such as the position of the sun at the front and the lack of detection of V on the radar, considering that its range was 6 miles.

The work of blocking and shoring up the leak carried out on board V did not prevent the flooding and subsequent sinking of the vessel despite the use of drainage pumps. Luckily, all crew members were evacuated, but the damage was significant.

Held: The Court of Appeals considered that, as the case did not have international connections, it should be governed by the Argentine Navigation Act Nº 20.094, which is similar to the Collision Convention 1910, and its complementary rules and navigation practices. In addition, the Court stated that in order to assess the conduct of the masters and crew members, the International Convention on Standards of Training, Certification and Watch keeping for Seafarers 1978 (STCW) approved in Argentina by Act Nº 22608 (B.O. 22/6/82) and the International Regulations for Preventing Collisions at Sea 1972 (COLREGS) approved in Argentina by Act Nº 21546, should be considered.

The Court of Appeals stated that there were no doubts that A collided with V on its starboard side, impacting with its bulbous bow on the fishing boom that in turn destroyed the pilot-house.

According to the evidence gathered, A infringed rr 2, 5, 6, 7 and 36 of the COLREGS and art 37 of the STCW for not having an appropriate view of the horizon and for not controlling the radar. This caused the collision with the V despite of the fact that the later was detectable at the radar and completely visible from about 7,000 m.

The Court stated that it remained to be determined whether A was the only vessel that caused the collision or if both vessels were to blame.

The Court stated that experience from similar cases shows that frequently fishing vessels sail in the same area and that this was the case here, where at least five fishing vessels were at a short distance from each other. That is why the presence of A at 500m did not raise the attention of V except when that distance was reduced without altering the collision course.

In fact, there was no total lack of surveillance on V, but on the contrary, on A no-one realised the danger until the collision occurred.

As regards r 15, that requires alteration of course to starboard so that each must pass on the port side of the other, no evidence was provided that if correct avoiding manoeuvres had been carried out the collision would have been avoided.

In addition, considering that V was lifting its fishing nets, it is plausible that it was not using its engines considering the risk involved, and that this circumstance limited its response and the conduct that might be enforceable. From this point of view, the manoeuvre of V 'all ahead and to starboard', crossing the bow of A, infringed r 15 of the COLREGS, but had no effect in the chain of causation equivalent to that of the colliding vessel, because causing inevitable damage is quite different from exacerbating damage.

As regards the lack of sound signals, it was proved that V sent warnings on VHF channel 16 and by single side band when the vessels were about 400m away from each other without receiving any answer from A.

The lack of surveillance on the bridge and the lack of use of the radar and of the communication instruments of A were the principal causes of the collision. It goes without saying that if the officer on duty did not see a vessel of the size of V, he would have noticed the visual signs even less.

While the plaintiff related the sinking with the collision, the defendant considered that the crew members did not contribute in diminishing the consequences of the collision. As regards this issue, the Court quoted the expert's witness opinion according to whom it would have taken about more than 3 hours to reach the nearest coast and that the coast was not a safe place for stranding. In addition, longer and wider ropes would have been needed to take the vessel to shore. Therefore, the defence was rejected and the liability was distributed 90% to A and 10% to V.

The damages claimed were: a) the cargo and bunkers lost, the salaries of the crew members and the provisions; b) the lack of use of the vessel until it could be replaced; and c) the objects lost that can be classified into material damages and loss of earnings. The Court considered that the salaries and social charges were not caused by the collision because they are legal duties independent from the collision and they are expenses that shipowners include in their costs and should be deducted from profits. Instead, the fish lost estimated in 10 mt of shrimp (USD 89,200) should be compensated.

As to loss of earnings, the Court decided that 103,75 working days and about 124 mt of shrimp (reduced in about 25% because of the changing circumstances of every business) should be considered, less the cost informed by the accountant. Therefore, this item was accepted for USD 354,869 (93,535 kg x 8.92 = USD 834,332 gross earnings - USD 479,463 as costs).

Interest at an annual rate of 6% should be added from the date of the collision regarding material damages and regarding the loss of earnings from the date in which the business period ended.

As regards the limitation of liability defence, art 175 of the Navigation Act Nº 20.094 states that this limit is the value of the vessel at the end of the voyage in which the facts that caused the damages occurred, plus the gross freight, the passengers' tickets, and other credits of the same voyage. It is a defence based on a quantitative limitation that the interested party should prove. The Court stated that in the case there is no evidence of this limit. The aim of the limit is not to delay the proceedings but to be a rational method to foresee the contingencies that the shipowner might face and therefore the sole fact of opposing the limit of liability is not enough to have effect. The Court added that the collision occurred 19 years before the Court's judgment and it is unknown what happened with the vessel after several mergers of the shipowner's corporation and there are no clues to determine the value of the vessel at that time. Therefore, the Court stated that the limitation defence should be rejected.

Finally, the Court decided that the plaintiff should bear 20% of the costs and the defendant 80%.