In Buenos Aires, on the 14th day of the month of February of two thousand and two, the Judges of the 2nd Chamber of the National Court of Appeals in Civil and Commercial Federal Matters met in agreement to hear the appeal filed in the case: ANTONIO BARILLARI SACIFI AND ANOTHER V/ CODEPECA SA AND OTHERS S/ ABORDAJE, regarding the judgment on pages 756/769, the Court established the following issue to be resolved:
Does the appealed judgment comply with the law?
After the draw, it was determined that the voting should be carried out in the following order: Chamber Judges Dr. Eduardo Vocos Conesa and Dr. Marina Mariani de Vidal.
In response to the question raised, Judge EDUARDO VOCOS CONESA said:
I.- On February 13, 1993, while drifting in the vicinity of the Gulf of San Jorge - in the Patagonian area - the fishing vessel RAYO DE MAR, which had its lights on, was lightly collided with the b/p CODEPECA II on its port side, without affecting the safety or navigability of the vessel. The incident occurred because the ramming vessel, which was heading to Comodoro Rivadavia, was constantly changing course because of the vessels fishing in the area and, during one of the manoeuvres, its steering system ran out of power, so it turned half power back to avoid the collision, but its inertia caused it to touch the b/p RAYO DE MAR with its port bow and anchor (cfr. Extraordinary Events Registration form, folio 186, on pages 493/499, and statements by skippers AA Cerrada and Osvaldo Caro, nos. 10/93 and 42/93 before the PNA of Comodoro Rivadavia, pages 25 and 27, or pages 422 and 424, etc.).
On account of this maritime event, the owner of the vessel RAYO DE MAR, Quilla Pesquera SAMCI and the controlling company Antonio Barillari SACIFI, brought the lawsuit against the owner of the ramming vessel, CODEPECA SA, for compensation for the damages and losses caused by the collision; damages which, according to the lawsuit, consisted of: a) expenses for repairing the defects suffered by the vessel, including the fishing winch and the reduction box, $ 48.262; and b) loss of profits due to the immobilization of the vessel from 17.2.93 to 19.5.93, $ 150.650,52 (plus interest and costs) -see lawsuit on pages 170 / 181-.
In its response, CODEPECA SA opposed the progress of these claims, denying the authenticity of the documentation, the facts narrated, the debt, the damages, the captain's liability, etc. It alleged that there was concurrent negligence, since the Rayo de Mar - although adrift - should have had a guard, engine and rudder and therefore complied with Rules 17 and 24 of the Regulations to Prevent Collisions given that the Codepeca II was without government. It also questioned the amount of the damages and loss of profits claimed and requested the summons as a guarantee - as the plaintiff had already done - of La Buenos Aires Compañía Argentina de Seguros SA (see pages 217/221).
On pages 231 and back, the party cited as guarantor appeared at the trial, who acknowledged its status as insurer and invoked the existence of a deductible of US$ 10.000, adhering to the position assumed by its insured as regards the remaining issues and defenses.
Finally, the captain of the vessel CODEPECA II, Mr. Osvaldo Caro, answered the claim, raising the defense of lack of passive legitimacy to act, since he only intervened in the events as a representative of the shipowner, without personal liability (articles 170 and 201 of the Navigation Law) -see writing on pages 248/249-. This document gave rise to the plaintiff's reply, insisting that, in the case, personal and direct liability fell upon the aforementioned captain (see pages 261/262).
These are, in a very brief summary, the factual background and the procedural relations constituting the present conflict, on which I will not expand further because the Judge, in his extensive ruling on pages 756/769, made a complete review of each of the submissions of the parties, so that duplication of the background is unnecessary.
II.- In summary, the issues that have been debated or that make up, in one way or another, the dispute under examination, are the following: 1) responsibility of Captain Osvaldo Caro for the collision; 2) responsibility or responsibilities of the vessels that collided (Rayo de Mar and Codepeca II); 3) assuming that, in whole or in part, the event was attributable to the ramming vessel, extent of the damage caused to the vessel that collided; and 4) based on the same assumption, existence or not of lack of profitability due to the immobilization of the RAYO DE MAR while it was being repaired and, if applicable, amount of loss of profit.
I would like to point out, from the outset, that the case comes with the peculiarity that the summary that the Argentine Naval Prefecture had raised was not brought as evidence - only mentioned by the defendant when answering grievances (page 823) - and that the parties did not request a naval expert's opinion about the responsibilities of the collision, since only the expertise of a naval engineer was produced on the damages derived from the collision and the amount consumed by the repairs and immobilization time of the damaged vessel.
III.- The Magistrate of first instance, in the ruling on pages 756/769, resolved: a) to uphold the lack of standing to act of Captain Osvaldo Caro, with costs to the plaintiff (clarification on pages 779); b) to declare, with the evidence in the case, that there was concurrent fault on the part of both vessels in the collision, holding them equally responsible; c) as regards the damage to the vessel Rayo de Mar, he relied on the expert opinion of naval engineer Santarelli, excluding the damage to the fishing winch and the gearbox from any causal relationship with the collision; Consequently, it set the amount of the damages at $14.860 and estimated at nine days the time that should have reasonably been required to immobilize the fishing vessel to repair the damage caused by the chafing on 13.2.93 (see pages 287/293 and pages 302/306); d) to consider as not proven, in the face of the confusing accounting appraisal and the lack of specific data - together with the fact that the company Quilla Pesquera SA made losses in the three years reviewed: 1992, 1993 and 1994 - the profitability lost due to the immobilization of the vessel.
Consequently, the distinguished colleague of the previous instance condemned the defendant and summoned as guarantor to pay the plaintiff 50% of the admitted damages - equivalent to $7.430 -, with interest at the active rate from the event and with costs in the order incurred and common costs in halves.
IV.- The judgment was appealed by both parties (pages 773 and 786), who also appealed the clarification on pages 779 (pages 790 and 799). The defendant and its insurer cited as collateral expressed grievances on pages 810/811 - not contested by its adversary - and on pages 812/820 the plaintiff raised her complaints, a document that prompted the replies of co-defendant Captain Osvaldo Caro (see pages 822 and back) and of Codepeca SA and La Buenos Aires Compañía Argentina de Seguros SA (on pages 823/824 back).
There are also various appeals related to the regulated fees (see pages 773, other pages 773/774, 776 - ratified on pages 788 and 789-, 780 and 790), which will be analyzed by the Court as a whole at the end of this agreement.
V.- I will briefly address the issue regarding the responsibility of the captain of the b/p CODEPECA II, an aspect that, given how it has been raised and resolved, deserves some reflection.
It is a legal principle that the captain is dependent on the shipowner and that he represents him (articles 170 and 201, Navigation Law), and it is also true that among his duties is being in charge of the direction and government of the vessel (article 120 LN). He is directly responsible for the conduction, maneuvering and government of the vessel, even when he has a pilot on board (article 134 LN). Apart from this, among his obligations is the care of the merchandise (article 205, cited law).
Now, the fact that he is the shipowner's legal representative is not a sufficient reason to release him from liability when it is proven that he acted with fault or negligence and, of course, even less with deceit. In such hypotheses, he is liable like any other citizen (art. 1109 CC). And as with respect to third parties -owners of transported goods, passengers or objects outside the ship-, the captain is not contractually bound, his liability moves, in any case, within the Aquilian orbit. And it is known that, in this field, whoever formulates the imputation of liability, must prove the damage, the illicit conduct (culpable or deceitful) and the causal relationship between the latter and the former (cfr. my vote in case 2644/95 BIDO SA v. bq. Santiago del Estero and another, and its accumulated, judgment of 19.5.95, consideration IX, published in Revista del Ateneo del Transporte, N 15, pages 67 and ff.).
In this case, no expert evidence was produced to assess the conduct followed in the emergency by Captain Caro, nor was it shown that the Argentine Naval Prefecture had sanctioned him - due to the collision of 13.2.93 - for failure to observe any of his nautical obligations, it must be kept in mind that mere participation in a maritime accident is not - in itself - demonstrable of reprehensible actions by the captain of the ship (e.g. when he acted with the maximum diligence required; when the event is the result of a fortuitous event or force majeure, etc.).
It is stated in the Register of Extraordinary Events of the vessel CODEPECA II -on page 186- that the vessel lost power to the steering system; that the rudder no. 2 was immediately changed, which also did not respond; and the machine was stopped and half-powered back was applied in order to stop the boat from moving, despite which the boat could not be prevented from moving forward due to the force of inertia and the fall in course, which subsequently hit the Rayo de Mar (pages 498/99). The reality of this fact has not been disputed by the plaintiff -who knew about it at the time of filing the claim, since it was stated in Caro's Exhibit No. 42/93 (pages 27 or 424)- nor by the expert or by the technical consultants of the party.
Since such a defect suffered on the high seas can happen to any vessel, even the most well-maintained ones on the sea, it is clear that it does not imply, in itself, that the captain had neglected the obligations imposed on him by article 131 of the Navigation Law. Because although the captain or skipper are responsible for the driving and government of the vessel (articles 120 and 134, cited law), this does not make them responsible for the exact functioning of each and every one of the parts of the engine and transmission of the vessel, especially when it has been inspected by specialized workshops and has all the official certificates in order. Therefore, if, due to a defect in a part or a system of the vessel, it is intended to attribute responsibility to the captain, it must be demonstrated specifically in what way he neglected his obligations and not allude in the abstract to the duties imposed by the law. And, in particular, there is not a single element of judgment - other than the malfunction of the power supply system - that proves that Captain Caro acted with fault or deceit in relation to putting the ship in a navigable condition.
And since no technical expert report has been provided to demonstrate that the maneuvers adopted by the aforementioned captain, in response to the emergency, were imprudent or lacking in expertise, it cannot be maintained that - in this case that we are examining - he is legally blamed for fault or fraud. Consequently, although for these reasons, I judge that the first instance judgment should be confirmed insofar as it exempted Captain Osvaldo Caro from the claim, with costs to the losing plaintiff (art. 68, first paragraph, of the Procedural Code).
VI.- In order to determine the liability for the collision, it is appropriate to bear in mind that the RAYO DE MAR vessel was adrift and with its regulatory lights on (it was 21:20 p.m.), a fact that is beyond dispute. It therefore involved a strictly passive element, which due to a defect in the CODEPECA II vessel suffered a minor collision, but sufficient to cause some damage. And since neither the co-defendant Codepeca SA nor the insurer La Buenos Aires, nor Captain Caro, stated that the other vessel was notified from their vessel of the technical problem they were suffering, and furthermore said vessel was sailing with constant changes of course (see Exhibit No. 42/93, of Captain Caro, before the PNA, pages 27 or 424), I consider the plaintiff's grievance to be admissible insofar as it maintains that it has not been proven that -in the collision- there was any fault (much less equal fault) on the part of Rayo de Mar.
There is, in fact, not a single element of judgment, even indicative, that demonstrates what negligence or fault was incurred by the rammed ship; especially considering that in view of the constant changes of course of the Codepeca II, it could have been led to believe that the latter - whose defects were unknown - would adopt the appropriate course in due time to continue its journey without problems.
Thus, the mere mention of Rules 17 and 24 of the Regulations for Preventing Collisions is insufficient to prove that the Rayo de Mar engaged in negligent conduct that contributed to the occurrence of the accident. It should be noted here that neither the defendant nor its insurer have provided any expert opinion in this regard, nor even any element of indicative value regarding the fault that they attribute - without any basis other than their assertions - to the plaintiff. Furthermore, in report No. 5368-P, by the naval engineer experts Jorge R. Aval and Antonio F. S. Moreno -produced at the request of La Buenos Aires Compañía Argentina de Seguros SA- it is categorically stated: It is evident that according to the vessel CODEPECA II would be responsible for this accident (although they add that a definitive opinion would require consulting the PNA summary, which was not brought to the case -cfr. report on fs. 190/197, on fs.191 ORIGIN OF THE ACCIDENT-). And to this it is possible to add, further, that in the reply to the complaint on fs.217/221 Codepeca SA invoked the existence of concurrent negligence (fs.218, III a).
The defendant's fault is therefore acknowledged; however, there is no evidence of the fault attributed to the other party. The conclusion that is imposed, according to the records of the case, is that the responsibility for the collision falls on the defendant, who must compensate the damages caused to its adversary (art. 359 of the Navigation Law), naturally to the extent of what has been alleged and proven (art. 377 of the Code of Procedure).
In this aspect of the litigation, I therefore propose the revocation of the appealed judgment with the meaning and scope that arises from the preceding recital.
VII.- The Judge rightly stated that damage is not presumed and must be proven, even if only as to its existence, by the person who claims to have suffered it unjustly (cf. JJ LLAMBIAS, Treatise on Civil Law, Obligations, vol. 2, 231nd ed., no. 259, p. 1952; A. ORGAZ, Compensable Damage, Bs.As. 28, p. 2; GA BORDA, Treatise on Argentine Civil Law - Obligations, vol. 50, 54nd ed., no. 5, pp. 416/5.6.81; this Chamber, case 163 of 5, among many others), all types of legal evidence being valid, including that of presumptions arising from serious, precise and concordant facts (art. XNUMX, inc. XNUMX, of the Procedural Code). But let it be clear: it is necessary to prove the damage and not to provide mere indications that can only give rise to conjectures. In addition, of course, it is necessary that there be a causal relationship between the unlawful act and the damage, as I have already stated above.
The a quo accepted as damages derived from the collision those individualized by the expert naval engineer Mario FC Santarelli in his opinion on pages 287/293, where he set out - with good reason, in my opinion - the reasons on which he based his technical conclusion. This opinion motivated the challenge of the plaintiff (see pages 295/301), but the engineer Santarelli - this time with the support of the defendant's consultant César C. Espona - clearly answered these challenges, convincingly reinforcing what was set out in his initial expert opinion (see pages 302/306). In short, the discussion revolved around whether the damages found, after the collision, in the reduction box and in the fishing winch were a consequence or not of the collision. The expert gave the reasons to maintain that these were damages unrelated to it; the plaintiff, to affirm that they were the result of the collision. And, in support of the latter's thesis, his technical consultant, engineer Fernando Enrique Trentini, issued the opinion on pages 610/621 with the following conclusions: a) that the breakages of the winch and the box were a consequence of the collision; b) that the cost of the repairs amounted to $35.072; and c) that the time of immobilization of the vessel for the repairs would reach 37 days.
The Magistrate, as we saw, adhered to the opinion of the official expert, excluding the damage to the winch and the reduction box and establishing the time of the repairs at nine days and their amount at the sum of $14.860.
These conclusions give rise to the complaints of the plaintiff, who maintains - with reference to the expert opinion of its technical consultant - that the aforementioned damages should have been included in the sentence because they were caused by the collision. And, in this sense, it states that if both devices were functioning normally before the collision and stopped doing so after it, without any previous or subsequent event having occurred capable of affecting them, the only possibility that existed was that their alterations were the result of the collision on 13.2.93.
In this part, I consider that the appellant's statement does not satisfy the requirements of reasoning required by art. 265 of the Procedural Code, since it does not involve a specific and reasoned criticism of the reference to documents prior to the judgment. And since the plaintiffs refer to the information provided by their technical consultant, but do not take into account the arguments presented by the court-appointed expert, engineer Santarelli, in the expert reports on pages 287/293 and pages 302/306, which the Judge adopted, it is necessary to conclude that the requirements of the aforementioned art. 265 have not been met to enable - in this aspect - the review instance. Therefore, I favor declaring the appeal on this point void, in accordance with the provisions of art. 266 of the aforementioned Code.
For the sake of completeness, and only in that capacity, I point out that the study by the expert Santarelli appears to have an adequate intrinsic foundation and is consistent with a series of studies that are part of the case, so that -given the discrepancy between his conclusions and those of the party's consultant, in such an debatable technical matter-, it is prudent to adhere to the opinions of the expert appointed ex officio (art. 477 of the Procedural Code). Consequently, and given that I assign 100% of the liability to the defendant, the amount of compensable damages for repairs will reach the sum of FOURTEEN THOUSAND EIGHT HUNDRED SIXTY PESOS ($14.860).
VIII.- In accordance with the above, in order to determine the value of the repairs and the time that they should reasonably have taken - I am referring to those causally related to the collision - I will follow the technical arguments of the naval engineer Santarelli, who considered a period of nine days sufficient for the repairs (pages 287/293). To this end, he considered that the collision occurred at low speed, so the damage to the vessels was of little magnitude and did not affect their safety and navigability (see also: notarial verification of fs. 22/23 or 346/347, dated 15.2.93 and reserved photographs, recognized as authentic by the notary at fs. 367; Exhibit No. 10/93, of skipper Antonio Amuedo Cerrada, of the boat Rayo de Mar, fs. 25, 422 and 503; Exhibit No. 42/93 of captain Osvaldo Caro, of Codepeca II, fs. 27 and 424; report of engineer Aval, fs. 190/197; witness statement of DJ García, fs. 382, at 3rd and 4th).
The plaintiffs claimed the sum of $150.650,62 for loss of profits due to the immobilization of the Rayo de Mar during repairs; an item that was expressly questioned by their opponents. And the judge, having seen the contradictory evidence provided in this regard, decided to reject the item. The plaintiff complains of this, stating - based on the accounting appraisal - that the decrease in catches meant a loss of profits equivalent to $123.657,05. Therefore, if this figure had been taken into account, the 1993 fiscal year would not have shown a loss of $144.032 but a negative result of $9.617,96.
I said earlier that damage is not presumed and that it is up to the person who invokes it to prove it. And, in accordance with the a quo, I judge that the plaintiff has not achieved her purpose.
For the moment, it should be noted that the period of immobilization of the Rayo de Mar that can be computed - according to the expert engineer Santarelli - is nine days (see opinion on pages 287/293), while the accounting expert Patricia Inés Yafuso - in her different presentations - has provided data so different that it leaves even the most experienced perplexed and that it takes away all probative value from her work. For the moment, in her first opinion (pages 404/416), the accountant Yafuso indicated that the firm Quilla Pesquera SA in its last three balance sheets - corresponding to the years 1992, 1993 and 1994 - had only experienced losses: $ 94.011,08, $ 104.396,92 and $ 114.506,96, respectively, not being able to comment on the results of Barillari SA because it does not keep records of vessels.
In response to the objections on pages 511 and 514, the accounting expert presented the explanations on pages 519/520, 526/527 and 533 and back, which gave rise to new questions (pages 522 and 529). In short, at the request of the judge, she presented the final opinion on pages 651/652, which - as indicated in the appealed judgment - far from clarifying things, gave them an incomprehensible touch, at least for those who do not master high accounting techniques.
In this case, it is enough to point out two precedents to marginalize the calculations of the accountant Yafuso: 1) that she took as a comparison parameter the vessel JUDITH, whose hold is 90 tons, while that of the RAYO DE MAR barely exceeds 50 tons (the capacity of capture and transport are therefore so unequal that they do not tolerate comparison); and 2?) that she calculated the loss of profitability relating it to more than three months, while what was admissible was to estimate the loss of profit - if there had been any - during the period of nine days.
If we take into account what has been said, and consider that the company Quilla Pesquera SA only showed losses in the last three years computed (1992, 1993 and 1994) and that it is not possible to know if Barillari SA suffered any decrease due to its accounting methodology, it is necessary to conclude that there is total uncertainty regarding loss of profits. To which I will add that this could, if desired, have been cleared up by means of a specific consultation of the fishing sheets of the Rayo de Mar and not of the Judith, but such consultation was not carried out.
As a result of the above, it is not known for certain whether the Rayo de Mar had made profits or losses during the nine days of its immobilization, that is, there is not enough evidence to admit that the plaintiff proved the loss of profits claimed, so that the decision in the first instance is strictly in accordance with the law.
IX.- It is true that, as a principle, this Court - when deciding on costs - generally favours the core issue of liability. But this solution does not entail an absolute rule and it is possible to deviate from it when the plaintiff, although successful in this aspect, loses 92,53% of the amount claimed. This leads to distributing the costs equitably, according to rules of prudence and not mathematically, in accordance with art. 71 of the Procedural Code, which contemplates the case of partial and mutual defeat, although the result is very similar to a practically total defeat. In light of the above, and considering the importance of the issue of liability, I consider it fair that the costs of the first instance be imposed on the plaintiff - in its relationship with Codepeca SA and the one cited as guarantor - 85% and on the opposing parties the remaining 15%, and in the relationship between the plaintiff and Captain Osvaldo Caro, 100% on the plaintiff (art. 68, first paragraph, Code of Form).
X.- I therefore vote that: a) the appealed judgment be confirmed insofar as it absolved Captain Osvaldo Caro of the claim, with the plaintiff to pay the costs of both instances, and that it be confirmed -likewise- with respect to the rejection of loss of profits; b) I favor the modification of the judgment in the appeal by establishing that the responsibility for the collision falls 100% on the defendant, who must pay the plaintiff the sum of FOURTEEN THOUSAND EIGHT HUNDRED SIXTY PESOS ($ 14.860), plus the interest ordered by the a quo; and c) the distribution regime for the costs of the first instance be reformed, placing 85% on the head of the plaintiff and the co-defendant Codepeca SA and the one cited as guarantor the remaining 15%; a solution that I consider pertinent also in relation to the accessories of the appeal (art. 71 of the Procedural Code).
The Chamber Judge, Dr. Marina Mariani de Vidal, for reasons similar to those given by the Chamber Judge, Dr. Eduardo Vocos Conesa, agrees with the conclusions of her vote. With this the act ended.
Buenos Aires, February 2002.-
AND CONSIDERING: as a result of the preceding agreement, the resolution of the Chamber as proposed in point X of the first vote is considered.
Given the tiny amount for which the claim is successful in comparison with the amount rejected, it is appropriate to regulate fees on the total amount claimed in the claim, in accordance with the doctrine established by the Court in the MAKALLE case, dated 12.10.79/2723/15.5.84, the grounds for which - reiterated in cases 6581 of 5.5.89/5077/94, 5.8.94 of 11.9.97/XNUMX/XNUMX and XNUMX/XNUMX of XNUMX/XNUMX/XNUMX, among others - are reproduced for the sake of brevity. Furthermore, in accordance with the decision in the plenary judgment La Territorial de Seguros SA v. STAF, dated XNUMX/XNUMX/XNUMX, the interest that has accrued on the total amount of the claim to date shall be computed.
Taking into account the nature of the matter, the tariff base specified in the previous recital, and the extent, quality and importance of the work performed, the fees of doctors Alfredo Mohorade and Horacio Mohorade -for their performance on behalf of Captain Osvaldo Caro- are hereby set at 4% and 1,6%, respectively. And the emoluments of doctors Alfredo Mohorade, Horacio Mohorade and María Elena Salgado -together- are hereby set at 13% of the indicated tariff base. Likewise, the emoluments of doctors Augusto B.J. Imperiale and César J. Blasco are hereby set at 9,1% of the same base (articles 6, 7, 9, 19, 37 and 38 of Law 21.839, amended by Law 24.432 and article 279 of the Procedural Code).
Taking into account the nature of the matters on which the naval experts, engineer Mario F.C. Santarelli and accountant Patricia Inés Yafuso, had to issue their opinions, as well as the entity of their respective opinions and their impact on the resolution of the case, the fees of the former are determined at 4,5% and those of the latter at 2% (art. 519, third paragraph, of law 20.094). And considering the work performed by the technical consultants of the parties, César C. Espona, Mariano Chachques and engineer Fernando Enrique Trentini, their remuneration - based on the tariff base set in the first point - is established at 1,5% for each (art. 519 cit.).
On appeal, taking into account the merits of the documents submitted, the outcome of the appeals and the computable tariff base, it is regulated: a) in the appeal of the plaintiff in relation to Captain Caro: 2,3% for the fees of Dr. César Justo Blasco and 3,5% for those of Dr. Martín Mario Isola; b) in the appeal of the defendant: 5,6% on the amount of the costs from which she is released; and c) in that of the plaintiff: 4% for the emoluments of Dr. Horacio Mohorade and 2,8% for Dr. César Justo Blasco (art. 14 of the current tariff).
It is noted that the third position of the Chamber is vacant (art. 109 of the Regulations for the National Justice).
Register, notify and return.
SIGNED: EDUARDO VOCOS CONESA – MARINA MARIANI DE VIDAL
