This case involved a claim for compensation brought by the heirs of deceased fishermen on the fishing boat Colorado. The fishermen's deaths resulted from a collision on 6 April 1979 between the Colorado and the Playa Dorada, a commercial vessel owned by Hijos de Francisco Arguimbau SA, approximately 5.5 miles from the port of Barcelona and within the territorial waters of Spain.

The Court of first instance found that both ships were at fault. The court held that the Playa Dorada had time to manoeuvre to avoid the collision, but failed to do so. On the other hand, the situation in which the Colorado was located with respect to the Playa Dorada was a crossing situation that required the Colorado to give way. The master of the Colorado was also not qualified to skipper the vessel. The Court awarded compensation to the plaintiffs calculated on the basis of this finding.

The defendant shipowner of the Playa Dorada, Hijos de Francisco Arguimbau SA, the master of the Playa Dorada, Pedro Miguel, and the insurers of the Playa Dorada, Cesmar Seguros y Reaseguros SA, appealed this decision to the Supreme Court.

Held: Court of first instance decision upheld.

One of the issues for the Supreme Court was which regulations were applicable to this case the provisions of the Commercial Code relating to collisions (arts 826 ff); or the Brussels Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels 1910 (Collision Convention 1910)? The Court held that the adoption by Spain of the Collision Convention 1910 has not led to the repeal of the rules of the Commercial Code relating to maritime collisions; and also that the aforementioned Convention is part of the Spanish legal system and is of direct application.

If all the ships involved in the collision are of Spanish nationality - that is to say they fly the flag of Spain - and the collision has occurred in Spanish territorial waters, the applicable legislation will be exclusively Spanish domestic (internal) legislation, in accordance with the provisions of art 12 of the Collision Convention 1910. The present case must therefore be resolved in accordance with the rules of the Commercial Code, and also the International Regulations for Preventing Collisions at Sea 1972 (COLREGs), which have been ratified by Spain.

In principle, the responsibility for a collision - if it is determined - is extra-contractual. First, extra-contractual liability may come about from bilateral liability or common fault, when it is caused by the fault of two or more of the vessels involved, which is regulated in art 827 of the Commercial Code (as well as in art 4 of the Collision Convention 1910, although the Convention is inapplicable in this case, for the reasons stated). In this case, the Commercial Code establishes a different legal regime, depending on whether the collision results in physical damage or personal injury or death.

Secondly, liability may also arise from unilateral culpability, which is regulated in art 826 of the Commercial Code (and in art 3 of the Collision Convention 1910), which arises when only one of those involved in the collision is responsible for it. In this case, it is clear that the non-contractual liability guidelines of arts 1902 and 1903 of the Civil Code will apply.

Thirdly, another scenario, which creates an exception to responsibility, involves fortuitous or unavoidable causes. Here, the collision is produced by a fortuitous event or force majeure, that is, negligence by the protagonists is excluded. It is regulated in arts 809-8 and 830 of the Commercial Code (and in art 2 of the Collision Convention 1910), and provides as a solution that each vessel involved should bear its own damages.

Finally, it may be left in doubt what caused the collision. The legal regime applicable to such doubtful cases is found in art 828 of the Commercial Code (and in arts 2 and 4 of the Collision Convention 1910).

This case is governed by art 827 of the Commercial Code and article 4 of the Collision Convention 1910 - bilateral liability or common fault - which was the reasoning of the judgment of the first instance, which is approved.