Seguros Mutuos Marítimos de Vigo (the plaintiff), acting under an assignment of rights, claimed compensation for the total loss of the fishing vessel the O Boavista, flagged in Spain and owned by Recesmar SL (Recesmar). This vessel was impacted on 25 October 2002 by the MV Mallorquin, registered in Portugal and owned by Naviera Delta SA (the defendant). As a consequence of the collision, the O Boavista sank. The collision was covered under the insurance policy and the plaintiff paid full compensation. The plaintiff claimed compensation for the amount paid to the insured, alleging a violation of the Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels 1910 (Collision Convention 1910) and the International Regulations for Preventing Collisions at Sea 1972 (COLREGs). According to the expert report presented by the plaintiff, the MV Mallorquin was the sole party responsible for the collision.

The defendant argued that the collision was the fault of both ships, that liability must be apportioned between the two vessels and that the action was time-barred. The defendant filed a counter-claim requesting, amongst others, compensation for the damages suffered by the MV Mallorquin and invoking its right to limit liability according to the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC 1976). Naviera Delta also advised the court that another process had been filed by Recesmar SL against it for the same collision, in which proceedings it had filed a counter-claim as well.

The first instance court ordered the defendant to pay to the plaintiff the full amount claimed. It also granted the petition of the defendant/counter-plaintiff to limit its liability. On appeal, the decision was partially reversed, reducing the amount of the compensation, without prejudice of the limitation of liability set by the lower court. The counter-claim was rejected as it was the same claim filed in the previous case brought by Recesmar. Both parties recurred the decision in cassation before the Tribunal Supremo/Supreme Court (SC). The plaintiff alleged violation of arts 3 and 4.1 of the Collision Convention 1910 and misapplication of the LLMC 1976. The defendant argued violation of art 4 of the Collision Convention 1910.

Held: The SC affirmed the decision. First, the plaintiff challenged the apportionment of liability of the vessels, alleging that the Courts of Appeals should have declared that the collision was caused by ‘the fault of one of the vessels’, and not by common fault. In its opinion this was a violation of arts 3 and 4 of the Collision Convention 1910. In support of this argument, the plaintiff argued that the MV Mallorquin acted in breach of rules 15 and 16 of the COLREGs. The SC stated that the apportionment of liability had been decided before by the Court of Appeal and affirmed by the SC in the process brought by Recesmar against Naviera Delta (CMI522). Hence, the SC could not ignore its own decision in that case and vary the apportionment in these proceedings.

The second and third arguments of the plaintiff related to the application of the LLMC 1976. On the one hand it argued that, although this Convention was applicable at the moment the decision was issued, the Court of Appeal could have also applied the Hague Rules or the LLMC 1957, both in force at the same time. On the other hand, it argued that the LLMC 1976 was not applicable because the conflict was between Spanish citizens and foreigners of States that were not a member of this Convention. The SC noted a contradiction between the two arguments and refuted them. The SC agreed with the Court of Appeal which stated that the LLMC 1976 was applicable and that the defendant/counter-claimant was entitled to limit its liability according to arts 1 and 15 of the LLMC 1976 where limitation of liability is sought before the Court of a State Party to the Convention. Therefore, the cassation was dismissed.

The recourse of the defendant/counter-claimant was dismissed for procedural reasons.