The Provincial Court of Palma de Mallorca determines the system of liability of the maritime carrier in the event of accident
The judgment analyzes the case of a ferry in which a fire broke out at sea, destroying the whole cargo.
On April 28, 2015 the ferry Sorrento went on fire after leaving the port of Palma de Mallorca bound for Valencia. Fire-fighting measures did not manage to prevent the vessel and its cargo (mainly trucks and trailers) from being completely lost.
After the relevant criminal investigation, the Guardia Civil issued a technical report establishing that the fire was accidental (not deliberate or negligent), which led to the dismissal of proceedings. The incident gave rise to numerous court proceedings in which the owners and insurers of the vehicles and the goods alleged that the owner and the charterer of the vessel were jointly and severally liable for the fire. All the judgments at first instance dismissed the claims and became final, except one of them, which was appealed, the judgment on which is discussed below.
The judgment clarifies certain provisions of the LNM which, although it came into force on September 25, 2014, has not yet been the subject of case law of the Supreme Court. Therefore, the above-mentioned judgment, together with other existing judgments of provincial courts on other subjects (delay in delivery of goods, etc.), is of great interest and importance. The judgment, which dismissed the appeal, has held as follows in relation to the liability of the maritime carrier in the event of fire:
- That the system of liability of the maritime carrier is imperative regardless of the kind of action pursued;
- That the burden of proof of the existence of fault of the carrier in relation to the fire is borne by the victims, since the LNM provides that the carrier benefits from the presumption of fortuitousness attributed to the fire;
- That the exemption from liability of the carrier for fire does not apply if there is fault of the shipowner’s employees; and
- That the possible errors of the crew in relation to firefighting would constitute nautical infringements, which would also exempt the carrier from liability.