In Buenos Aires, on the 9th day of the month of April 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: ARPEZ SA C/ BQ. ASTRASOL S/ DELAY IN THE TRANSPORTATION OF MERCHANDISE, regarding the judgment on pages 247/249, 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.- Arpez SA, owner of the vessel MANGURUYí, sent that vessel - loaded with liquid and solid bulk - from Campana to Puerto Deseado, having to naturally follow the route of the Ingeniero Emilio Mitre Canal. Upon arriving near km 37, it was informed by the maritime authority that the aforementioned Canal was obstructed and navigation was suspended because the tanker ASTRASOL, belonging to the company ASTRA Compañía Argentina de Petróleo SA, had been stranded at that height since 02.50:10.7.92 on 13. For this reason, the MANGURUYí had to anchor and wait for the canal to be cleared in order to continue its voyage, which occurred on the 01.55th of the same month and year, at // 107:110 (cf. report of the Naval Maritime Prefecture on pages XNUMX or XNUMX).
The grounding of the ASTRASOL caused the Arpez SA vessel, according to the statement, a delay of 2 days, 20 hours and 30 minutes, which represented unproductive damages of US$ 11.380,60 (see notice on page 25, dated 30.4.93). This gave rise to an exchange of correspondence between the owner of the MANGURUYí and the owner of the ASTRASOL - the former claiming compensation for the aforementioned damage and the latter rejecting the imputations of liability; an exchange of letters that ultimately proved fruitless.
For this reason, Arpez SA initiated the present lawsuit against those responsible for the vessel ASTRASOL, claiming compensation in the amount of $11.380,60 (plus US$250 for agency fees), interest and costs, holding them responsible for the damages and losses caused by the obstruction of the Mitre Canal; this, based on the provisions of art. 1113 of the Civil Code (see writing on pages 32 and back).
II.- The brief claim on page 32 back was answered by ASTRA Compañía Argentina de Petróleo SA -owner of ASTRASOL-, which after some denials regarding certain factual aspects and claims of the plaintiff, pointed out that, as it would have to prove during the process, the grounding of the AS-TRASOL occurred due to the negligence of the National Directorate of Port Construction and Navigable Waterways, which provided erroneous information through Provision No. 47/92 regarding the determining factor (depth) existing in the Mitre Canal between kms. 12 and 42. According to the data provided by said technical body, the depth of the Canal should have amply allowed the passage of the tanker, but the depth existing at km. 37 was much lower and this inevitably caused the grounding. Therefore, the obstruction of the channel resulting from this, and the delay in navigation that it caused to other vessels, does not involve its responsibility but that of the official entity that gave the navigators erroneous information about the hydrographic conditions of the Ingeniero Emilio Mitre Channel. And the best proof that said information was the efficient cause of the nautical event is given by the fact that, in those days, numerous groundings occurred in the same areas of the Channel, according to the accompanying sheet on pages 51 (see reply to the claim, on pages 52/54).
III.- The Magistrate of first instance, in the ruling on pages 247/249, first of all considered the conclusions of the Argentine Naval Prefecture (Provision No. 385/93, pages 217/218 of the main case) - which came to the conclusion that it was not appropriate to attribute responsibility for the grounding of the MANGURUYí to any person, since it would have been caused (it should be attributed to the possibility) to the existence of shallower depths than those officially reported for the axis of the Canal at km 37. Next, the a quo - highlighting the decisive importance that the technical naval expertise has in this kind of matters - adhered to the opinion of the expert in the sense that the grounding of the vessel ASTRASOL was not technically foreseeable, for the reasons stated in the opinion and corroborated in the explanations on pages 204/208 and pages 223/224.
Under these conditions, the Judge considered that the defendant had proven that its vessel ran aground due to circumstances // beyond its control, and decided to reject the claim, with costs.
IV.- The plaintiff appealed at pages 257 and expressed grievances at pages 277/282, which were replied to by his adversary at pages 284/286. There are also appeals related to the regulated fees (see pages 257 -in the main and other pages- and pages 261), which will be examined by the Court as a whole at the end of this agreement.
V.- I will begin by pointing out that when the issues under discussion involve technical-specialized aspects that normally escape the knowledge of judges, it is appropriate to resort - as provided for in the Procedural Code (arts. 457 et seq.) - to the assistance of those who are particularly qualified in the subject matter (science, art, industry or technique). And the opinion of these auxiliaries of Justice - especially when they have a qualifying degree in the specialized branch of knowledge - is of significant importance, as a rule, to elucidate the issues submitted to them as long as they provide a detailed explanation of the technical operations carried out and the scientific principles on which it is based (art. 472 Procedural Code); especially when the expert opinion is supplemented, at the request of the parties or their technical consultants, with a clear and concrete exposition that clears up any doubt or ambiguity that could have resulted from the original opinion (art. 473).
Of course, technical expert reports, although of great value, lack binding force for judges, who // must weigh the seriousness of their justification according to the so-called rules of sound criticism (articles 386 and 477 of the Code of Form). However, in order to depart from scientific or technical arguments - which appear to have adequate support and are appropriate to the other elements of conviction of the case - it is necessary for the judge to contrast the expert's arguments with others of a similar nature, which demonstrate some flaw - logical, calculation or technical - in the reasons given by the judicial assistant. As we have pointed out many times, simple reasoning based on what is commonly called common sense is not enough.
That being said, even if it is true that maritime-administrative liability is different from civil liability and that dismissal in the first of these fields does not oblige in the second, one cannot act with the frivolity of // simply and plainly disregarding the decision made by the technical authorities of the Prefectura Naval Marítima simply because it has a jurisdiction different from that of the federal judge in civil and commercial matters. And, on the contrary, the technical opinion of the specialized advisors of the maritime authority generally acquires an important persuasive value both because it comes from men who have completed high-level theoretical studies and because they have completed this training with the experience of their life at sea. To which is associated the fact that these are technicians detached from any interest in the outcome of the case.
Well, according to Provision No. 385/93 of the PNA (pages 217/218 or pages 221/222 or its original in the summary), based on the report of the Technical Advisory Board for Navigation, it was considered that the grounding of the vessel ASTRASOL should be attributed to the possibility of the existence of shallower depths than those officially reported for the axis of the Canal at km 37, and consequently no responsibility should be attributed to any person (see ATN, pages 106/107, summary). And the Legal Advisory Board - whose opinion incorporated Provision 385/93 - stated that it was appropriate to acquit the pilot, the captain and a sailor of the aforementioned vessel since there was no administrative reproach to be made to them, pursuant to art. 702.0018 inc.
b) of REGINAVE.
In arriving at this conclusion, the Naval Maritime Prefecture had all the elements of judgment reasonably useful to form a conviction. And it was clear in assigning to the erroneous official information an adequate causal link with the nautical occurrence of the grounding.
The administrative summary of the PNM constitutes, in my opinion - since I have not observed any procedural flaws or logical errors or reasoning devoid of common sense - a first-rate element for the resolution of the conflict under examination.
I am interested in highlighting, in order to reinforce the preceding conclusion, the fact that the PNA - through the aforementioned Provision 385/93 - is admitting in principle the responsibility that falls to the National Directorate of Port Constructions and Navigable Waterways for the erroneous information provided to the vessels. And this attitude, certainly praiseworthy, could have meant a series of conflicts and lawsuits against it, not taking into account that, on dates close to the grounding of the ASTRASOL and in the same stretches of the Mitre Channel, an unusual number of groundings occurred (see list on fs. 177, complementary list on fs. 180 and complete list on fs. 184), the origin of which cannot be elucidated in these proceedings but which could have a reasonable connection with the erroneous data that was sent to the vessels in the Navigation Routes and Notices to Navigators.
The evidence of the administrative summary of the PNM is completed with the studies and conclusions of the naval appraisal carried out by the expert Emilio Rubén Hansen (see pages 192/194 and explanations of pages 204/208 and 223/224).
After the expert explained the unique conditions and uncertainties that the Mitre Canal represents for navigation - which extends from km 12 of the access to the port of Buenos Aires to km 48, at the mouth of the Paraná de las Palmas -, the expert Hansen indicated the depths of the Canal between km 34,800 and km 38,500, taken from the notice of the National Directorate of Port Construction dated 1.7.92. And based on this data and computing the draft of the ASTRASOL (28′, fs.30) and the safety margin imposed by Provision No. 159/92 // (1 foot and a half below the keel), the expert determined that the aforementioned vessel still had a surplus of safety. For this reason, he stated that -drafting 28 feet even- the ASTRASOL could not foresee, with the information provided to it, its grounding (see pages 192/194). The naval technician added that, in the area that interests us, there were shallower depths than those declared and officially published, so it is very possible that this erroneous information contributed to the grounding (emphasis mine).
We see, therefore, that both the PNM and the expert appointed ex officio have admitted the existence of erroneous official information on the depth of the C. Mitre, km. 37 (an extremely serious error for the safety of navigation by publishing depths lower than the actual ones). And secondly, that the PNM and the expert agreed in recognizing that between this erroneous information and the grounding there was very probably an adequate causal relationship (PNM: the investigated grounding must be attributed to the possibility of the existence of shallower depths than those officially reported - Disp. 385/93, fs.217/218; expert Hansen: it is very feasible that this erroneous information contributed to the grounding).
Such concordance of opinions between the Technical Body of the maritime authority and the officially appointed naval expert constitutes, in my opinion, an element of judgment of significant suasory value (articles 386 and 477 of the Code of Procedure).
It is now appropriate to examine the argument, certainly not weak, put forward by the plaintiff in defense of his thesis.
VI.- I would like to point out, first of all, that although the Mitre Channel undergoes more or less continuous changes in its muddy bottom, the most reliable authority on its currents, depths, etc., is the Maritime Naval Prefecture. To adhere, as a principle, to its instructions and directives implies prudent seamanship, and disobeying them is a reprehensible attitude and not exempt from danger.
It is true that, throughout the year 1992, there were 23 groundings in the Mitre Canal (see the complete list on page 184 and the complementary list on page 183). However, although the bare data is impressive, it cannot be overlooked, on the one hand, that the case does not contain all the data to judge whether in 1992 those 23 vessels respected the relevant depths and drafts (apart from the fact that one ran aground due to leaving the canal), and, on the other hand, there is no record in the case file - not even indicative - about the number of vessels that sailed through the Mitre Canal throughout the year 1992 without experiencing any mishap. A comparison of the latter with the former would allow a certain opinion to be formed regarding the percentage that those groundings represented in river traffic. To which I think it is appropriate to add that it is completely unknown whether at least some of them were not due to the ship's own clumsiness (ignoring official data, exceeding the appropriate draft, respecting the safety margin below the keel, etc.).
I therefore believe that the first argument is more effective than legally meritorious.
In order to claim that the ASTRASOL would have incurred fault for not having carried on board an echo sounding system or another effective means of carrying out soundings, this is an approach that // includes a question of fact - on which the defendant has not had the opportunity to defend itself - and cannot be proposed directly in the appeal (doctrine of arts. 271 and 277 of the Procedural Code).
With reference to the fact that the draft of the vessel ASTRASOL was excessive to sail through the Mitre Canal -since it reached 28 feet (fs.30)-, we have already seen that the expert Hansen categorically stated that the aforementioned vessel had more than enough depth (adding draft and free space under the keel) so that it could not have foreseen the occurrence of the grounding. This expert opinion, added to fs.192/194, motivated a request for explanations and additional documentation by the plaintiff, but in the respective document on fs.198/199 there is no specific reflection aimed at // questioning that expert statement about the unpredictability of the grounding and the lack of excess draft. Furthermore, when providing explanations on pages 204/208, the expert Emilio Rubén Hansen maintained clear coherence with his previous report, reiterating that at km 37,300 - where the ASTRASOL ran aground - there should have been greater depth than the determining one (that is, the one estimated and disseminated by the maritime authority). I add, to conclude with this aspect, that the expert extension on pages 223/224 is limited to adding to the main copy of Provision No. 385/93, for which reason the Naval Maritime Prefecture ordered the administrative dismissal in the summary instructed due to the grounding.
Regarding the grievance that the vessel ASTRASOL actually had a draft greater than 28 feet - due to the squat effect - and that it ignored the decrease in the depth of the Canal due to the previous groundings and maneuvers to get away by the vessels AR RABBU and NIKKO STAR, as well as the PILEFS (grounded on 7.7.92), it is clear that we are faced with problems of a technical nature, the explanation of which should have been requested at the appropriate procedural time - from the naval expert or provide a comprehensible technical exposition by resorting to a technical consultant on the party.
There are aspects that are clearly not presented with the necessary clarity, such as everything related to permitted drafts and depths. The official expert, as we saw before, was categorical in that the ASTRASOL - with its draft of 28 feet - should not have run aground (unless the reported depth was lower). And the plaintiff sets out in its argument and in the expression of grievances calculations related to depths and drafts, contradicting the expert. Which does nothing but create a situation of uncertainty, in the best of cases, regarding the real state of the Mitre Canal, the information officially provided and the specific drafts of the ships.
The issue, by its nature, should have been elucidated in the first instance by way of a request -or as many as necessary- to the expert, as authorized by art. 473 of the Procedural Code. But it seems inappropriate to bring directly to the Court one or several questions -which involve aspects of a technical nature (e.g. the SQUAT effect on the draft; whether the identification of the draft is independent of the depth margin that must remain under the keel; whether the ASTRASOL // -draft plus safety margin- could have navigated without // setbacks, despite the other groundings, if the reported depth had been correct; etc.)- that, apart from their eventual concordance with common sense -not necessarily coinciding with the requirements of a technical order-, should have been defined in the first instance, resolved by the a quo and only then submitted to the appeal, as an instance of a reviewing nature.
The argument that the safety margin of one and a half feet below the keel may be sufficient for another area but is inappropriate for the Mitre Canal deserves similar consideration. Personally, I do not know. Nor has the issue been the subject of specific questioning by the plaintiff // when the expert spoke about it. And the a quo did not say a word about it.
Continuing the analysis of the appellant's developments, I must say that the fact that the vessels TOURMALINE, BELLE, and PILEFS ran aground (on 20.6, 5.7, and 8.7) between kms. 34 and 38,5 of the Emilio Mitre Channel - facts that, on the day of the claim, the plaintiff could not ignore - do not add or subtract to resolve the dispute at hand, since all the details related to their groundings are unknown, except that their draft was 28 feet. It could be thought that their nautical accidents were recognized as a cause by the poor information on the depths of the Mitre Channel, in which case their situation would not be different from that of the defendant, since the // four vessels would have adapted their conduct to the official information of the maritime authority, conduct that - I have already said before - does not deserve reproach from me and on the contrary I consider to be in accordance with the dictates of prudence. I add, from another perspective, did the captain of the ASTRASOL know that those stranded vessels had a draft of 28 feet? There is no proof in this regard. Therefore, from this situation it is not possible to deduce // -without making a logical leap- that the attitude of the ASTRASOL was neither unforeseeable nor inevitable. The expert Hansen was very // clear that its stranding was really unforeseeable and therefore inevitable.
In conclusion, I will add that art. 1113 CC - not // transferable simpliciter to the law of navigation - does not improve the position of the appellant, because the grounding of the ASTRASOL - which caused the delay of the MANGURUYí vessel - recognized as an adequate cause the fault of a third party for which the owner of the latter vessel should not be held responsible.
I therefore vote to confirm the appealed judgment, with costs to the losing plaintiff, in accordance with the objective principle of victory or defeat, which I do not find - in this case - sufficient reasons to ignore (art. 68, first paragraph, of the Procedural Code).
The Chamber Judge, Dr. Marina Mariani de Vidal, for reasons similar to those given by the Judge
Chamber member Dr. Eduardo Vocos Conesa, agrees with the conclusions of his vote. With this the event ended.
Buenos Aires, April 2002.-
AND SEEN: as a result of the preceding agreement, the appealed judgment is confirmed, with costs to the defeated appellant (art. 68, first paragraph, of the Procedural Code).
Taking into account the nature of the matter, the amount claimed in the lawsuit plus the interest accrued to date (plenary session of La Territorial de Seguros SA v. STAF, dated 11.9.97), and the extent, quality and importance of the work performed, as well as the stages completed, the fees of doctors Alejandro Fernández Llorente and Fernando R. Ray are hereby established at 7,5% and 6,5% of the indicated tariff base. And the emoluments of doctors Martín Mario Isola and Luis José Nessi Lavisse are hereby set at 10% -together- on the same base (articles 6, 7, 9, 10, 19, 37 and 38 of Law 21.839, amended by Law 24.432).
Considering the nature of the issues on which the experts, accountant Juan Carlos Cross and naval expert Emilio Rubén Hansen, had to issue their opinions, as well as the entity and scope of their opinions, I confirmed their fees, since only // were appealed for being high (art. 519, third paragraph, of law 20.094).
For the tasks of appeal, considering the merit of the documents presented and the result of the appeal, as well as the // amount in dispute -coinciding with that of the first instance-, the fees of Dr. Fernando R. Ray are regulated at 5,5% and those of Dr. Luis José Nessi Lavisse at 3,85% of the base specified for the previous instance (art. 14 of the current tariff), with those of the first being increased with the VAT rate.
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
