By: Abg. Miguel Angel Saltos, Mgs.
Background:
The case focuses on the lawsuit filed by the Compañía Negocios Industriales Real SA (“Fish Export Company”) against Seguros Rocafuerte SA (“Insurance Company”) for the collection of the value of an Insurance Policy, related to the shipwreck of the ship fishing vessel “Don Santiago” (Judicial Gazette Series XIII, No 10, 01-13-1981).
The fish exporting company had filed a claim against the insurance company for the collection of the value of an Insurance Policy, as well as the expenses related to the salvage of the damaged vessel that is covered by said policy.
The second level ruling issued by the First Chamber of the Superior Court of Guayaquil confirmed the ruling of the Fourth Provincial Judge of Guayas, who rejected the exceptions and counterclaims filed by the defendant. Therefore, it was ordered that the insurance company pay the fish export company the sums claimed plus the legal interest from the date of the incident and other expenses related to the incident of the fishing vessel “Don Santiago”.
The insurance company opposed the claim, arguing that the ship was entrusted to persons not authorized by the Merchant Marine Directorate and that the ship was overloaded beyond its capacity. They claimed that due to these actions, they are exempt from liability for the incident. In addition, they filed a counterclaim against the plaintiff for the expenses incurred in the salvage of the ship.
The judgments of first and second instance favored the plaintiff and rejected the counterclaim filed by the defendant.
Maritime Regulations in force at the time of the dispute:
1. Maritime Police Code : It established that any person who wishes to practice a maritime
profession or activity in the Republic must register in the Registries of the
respective Harbor Master’s Office and obtain a registration certificate. The
captains and pilots had to register with the Major Captaincy of the Port of
Guayaquil. The Owner of Ecuadorian vessels had to appoint Ecuadorian captains
and pilots with a professional title. In addition, Shipowners and Shipping
Companies would be responsible for incidents resulting from deficiencies in
material or personnel on board.
2. Regulation of Procedures of the Merchant Marine Directorate : In accordance with the Maritime Police Code, it established the registry of embarked personnel, including captains, pilots, and others. Fishing vessels of less than one hundred tons could be commanded by fishing skippers with the title of coastal skippers. Captains and other officers would obtain their registration only from the Directorate of the Merchant Marine and the Coast, prior registration of the respective title.
Situation of the Ship “Don Santiago”:
1. The fishing vessel “Don Santiago”
was always commanded by the helmsman Segundo Pita S., even on the day of the
incident. He was granted permission to navigate the high seas for fishing
activities.
2. Despite the fact that the Captaincy of the
Port of Salinas certified that Segundo Pita Santos had been registered as a
Helmsman since 1968 and that it was in order in 1973, the Merchant and Coastal
Navy contradicts this, stating that it was not registered in 1973. The same It
happens with other crew members.
3. The Regulations for Procedures of the
Merchant Navy required shipowners to obtain tonnage and measurement
certificates for their ships. The “Don Santiago” had a gross
registered tonnage of 42.4 tons and a net registered tonnage of 14 tons,
figures that also appear in the ship’s Insurance Policy.
4. The Ship Hull and Machinery Insurance
Policy established that the insurer does not cover damages and losses resulting
from inexcusable negligence on the part of the Owner, Captain or officers of
the ship.
5. Supreme Decree No. 1147 determined that the insured must maintain the risk status and notify the insurer of any circumstance that aggravates the risk. The insurer may terminate the contract or adjust the premium in such cases.
What the Chamber resolved and its due motivation:
1. The summary investigation and the Captains
Jury concluded that the “Don Santiago” was overloaded and under the
command of a helmsman not qualified to be a Captain. This negligence is
attributed to the owner.
2. Despite the fact that the Captaincy of the
Port of Salinas allowed the ship to set sail without a fishing skipper with a
title of coastal skipper, this does not exempt the shipowner from his
responsibility to comply with maritime laws and regulations.
3. The final sentence revokes the previous sentence. The Directorate of the Merchant Marine and the Coast is instructed to take measures, since it was observed that the Captaincy of the Port of Salinas has allowed fishing vessels to set sail without adequate personnel, putting both the vessel and the life of the vessel at risk . crew.
Analysis applied to the case of the ship “Don Santiago”:
As we have been able to observe from reading the case in this article, the investigations revealed that the ship was overloaded and under the command of a helmsman who was not qualified to be a Captain, which led the court to reject the claim.
This case highlights the importance of due diligence in the operation of vessels. Due diligence, in this context, refers to the obligation of the shipowner to take all reasonable steps to ensure the safety of the ship. This includes making sure that the vessel is properly manned by trained personnel and that it is not overloaded.
The case also highlights the importance of proper training and certification for maritime personnel. In this case, the helmsman in charge of the “Don Santiago” was not qualified to be a Captain, which contributed to the shipwreck. This is a crucial reminder that maritime safety is not just about protecting property, but also about safeguarding human lives.
In addition, the Hull and Machinery Insurance Policy of the ship “Don Santiago” excluded coverage in cases of inexcusable negligence on the part of the owner, Captain or officers of the ship. This provision is common in marine insurance policies and reflects the principle that insureds must take all reasonable steps to prevent loss or damage.
Ultimately, the case serves as a reminder that maritime authorities have a crucial role in supervising and regulating the maritime industry. In this case, the Captaincy of the Port of Salinas allowed the “Don Santiago” to set sail despite the deficiencies in its crew and cargo. This incident underscores the need for more rigorous supervision and regulation to ensure maritime safety.
In conclusion, the case of the ship “Don Santiago” offers valuable insight into the complexities of maritime law and insurance law. It highlights the importance of due diligence, proper training and certification of maritime personnel, adherence to the stipulations of the insurance policy itself, and effective supervision and regulation by maritime authorities.
Abg. Miguel Angel
Saltos: miguel.saltos@lince-saltos.com
