This was an appeal against a judgment of the Court of first instance which rejected the claim brought by the appellants against the respondents.

The Judge held that the burden of proof fell on the appellants to demonstrate physical or material contact or the intervention of the vessel Doña Concepción in the collision that gave rise to the claim. The Judge framed the incident in terms of the provisions of art 1113 of the Civil Code. Notwithstanding this, she outlined the opinion of those who maintain that in collision cases that rule is not applicable, but rather Law 20,094 and the relevant international Conventions. She found that Witt was the owner of the speedboat La Fugitiva, that the vessel was a total loss after the incident, and that the accident site was located in the Paraná Guazú River. The Judge reviewed the rescue manoeuvres carried out in relation to those who were sailing on the vessel La Fugitiva, although she ruled out the existence of a collision with the ship Doña Concepción, emphasising that none of the occupants of the vessels that were sailing in the area of the event - La Iniciadora II, the Chau V and the coast guard Lago Lacar - mentioned the presence of a boat of the dimensions of the Doña Concepción, and pointing out that radio communications did not allow the presence of the Doña Concepción at the scene to be verified. In the absence of any concrete evidence, the Judge ruled out that the traces of paint obtained from the bow of the appellants' boat belonged to the respondents' boat, or to a boat manufactured by the Arsenat SA shipyard. The Judge concluded that the evidence put forward was insufficient to demonstrate the alleged material contact between the vessels, and therefore to corroborate the participation of the Doña Concepción in the collision.

The appellants appealed to the Court of Appeal, arguing that the Judge made a biased and erroneous assessment of the evidence accredited in the trial.

Held: Appeal dismissed.

It is necessary first to clarify that the legal regime applied by the Judge was wrong. In so far as it is a claim for damages originating in a collision, the matter should have been examined and legally evaluated in light of the autonomous regime prescribed by the Law on Navigation (No 20,094), which provides:

All legal relationships arising from water navigation are governed by the rules of this law, by complementary laws and regulations, and by usages and customs. In the absence of navigation law provisions, and in so far as it is not possible to resort to analogy, common law will be applied.

Based on this provision, and taking into account that the foundation of nautical responsibility is fault, the Court must apply arts 359 and 360 of the cited Law [which give domestic effect to the Collisions Convention 1910 in Argentina].

The appellants assign relevance to the report by a chemical expert that the paint samples taken from the ship Doña Concepción were 'attached temporarily to the outside of the accused vessel', inferring from this that its adherence was recent, that its colouration (blue) coincided with that of La Fugitiva, and that the material (reinforced plastic GRP and fibreglass), was compatible with that used for the construction of the sunken boat. The appellants also highlight the evasive attitude of the respondents and the lack of collaboration provided in the process, concluding that the conduct of the respondents leads to the presumption that they did not tell the truth, highlighting that this presumption is demonstrative of responsibility.

However, the arguments put forward by the appellants are insufficient to trigger a review of the first instance decision, particularly taking into account the other evidential factors that the Judge highlighted.