Marisa Andrea Galloro, 21 years old, the mother of the plaintiff, was travelling as a passenger on the Ludo I. Eduardo Moreno was the helmsman of the boat, and the other passengers were María Cristina Orieta, Graciela Natalia Morena, and the plaintiff, Daiana Natali Vazquez, who was three years old at the time. The Ludo I was sailing down the Abra Vieja stream towards the Luján river, when, as it was crossing the latter, it was struck by the Para Punta, steered at the time of the incident by José María Roldan. As a result of the incident, Galloro died as a result of a subdural haemorrhage and head trauma. Passengers on both boats were injured.

The Court of first instance held that Roldan and Moreno should pay ARS 69,000 and ARS 391,000 respectively for causing the collision. The Court held that the event that triggered the damage was fundamentally due to the fault of Moreno, the helmsman of the Ludo I, who was driving a boat without the required lights, and without the pertinent authorisation to drive a homemade boat. Roldan, who was in charge of the Para Punta, could not be exempted from reproach, because he was navigating at a speed that was not recommended for a dark night, preventing him from manoeuvring in time to avoid the collision. The Court therefore held that the percentage of responsibility that should be attributed to Moreno was 85%, while the remaining 15% was attributed to Roldan.

The plaintiff and Roldan appealed.

Held: The apportionment of liability of the Court of first instance is confirmed. The co-defendants are declared to be jointly and severally liable for the plaintiff's losses.

The plaintiff's grievance that the percentage of responsibility attributed to Roldan (15%) cannot be upheld. Given that the Court of first instance granted her claim in its entirety, it cannot be understood what burden the apportionment of liability causes her.

It is necessary to point out that, in maritime law, as in other branches of the legal system, for liability to arise, the conjunction of four conditions is required, namely that: a) there is a violation of a rule or the duty to act with prudence according to the circumstances (arts 512 and 902 of the Civil Code); b) this transgression is attributable to its author by way of guilt or fraud; c) damage has been caused to a person, to his or her integrity or property; and d) there is an adequate causal relationship between the imputed wrongful act and the damages. Therefore, in accordance with the general principles of law and its adaptation to the field of maritime law (art 1, Law No. 20,094), for liability for damages to arise, it is enough that the generating event is attributable to the vessel by way of fraud or negligence.

Having considered all the evidence, the attribution of responsibility made by the Court of first instance should be confirmed.

Finally, it remains to discuss the joint and several liability of the co-defendants, which is regulated by art 360 of Law No. 20,094. The text of the above provision states:

In respect of damages caused by death or personal injuries, the vessels in fault are jointly as well as severally liable to third parties, without prejudice however to the right of the vessel which has paid a larger part than that which ... she ought ultimately to bear, to obtain a contribution from the other vessel or vessels in fault.

When the death or personal injury of a passenger has been caused by collision, the legislator has maintained the principle of solidarity established by common law. As a result, Moreno and Roldan are jointly and severally liable. This is without prejudice to the recourse action provided for in the same provision, which corresponds to each of those required to pay to the extent of their causal contribution to the generation of the damage.