This is the first case in Ecuador to recognize compensation for moral damages resulting from a maritime incident.
Leonidas Villagran
The Punta Blanca case is the first in Ecuador in which compensation for moral damages was awarded to an individual following a maritime incident. The case was handled by Villagran Lara, Abogados, with attorney Hugo Cisneros representing the plaintiff, Johnny Soria.
J. Soria was employed by a subcontracting company to paint the tanker Punta Blanca. On July 9, 2007, while painting the deck, the Captain of the Punta Blanca instructed Mr. Soria to assist with cutting operations being carried out on deck. Directly above a slop tank, they were performing the cutting using oxyacetylene welding. J. Soria was instructed to take a hose and extinguish the sparks.
The hot work had not been previously authorized by the Port Captaincy or the Guayaquil Port Authority, in accordance with the Guayaquil Port Authority’s Maritime Operations Regulations, nor had any degassing or gas measurement been performed. As a result, an explosion occurred due to the expansion of gases from the slop tank, causing Mr. J. Soria to lose his left leg and severely injure his right leg.
It was also verified that the hot work had been scheduled a month prior, with the participation of representatives from the agency and the owner of the B/T Punta Blanca.
On October 26, 2010, the Board of Captains convened at the Guayaquil Port Captaincy determined the maritime technical and professional responsibility of the Captain of the B/T Punta Blanca, as well as the First Officer, the Chief Engineer, and the owner himself. On April 16, 2013, the Fourth Criminal Court of Guayas, hearing the case on appeal, upheld the ruling, except for the section concerning sanctions, ordering that the General Directorate of Merchant Marine and the National Directorate of Aquatic Spaces be responsible for imposing them.
On October 24, 2012, the Twelfth Civil Court of Guayaquil found negligence in the actions of the Captain and the representatives of the Agency and the Shipowner, and ordered the defendants—with the exception of the First Officer—to pay $450,000 in damages to the plaintiff, J. Soria, for moral injury. The Captain appealed the ruling.
On July 30, 2013, the Provincial Civil Court of Guayas, in its decision, noted that performing hot work without the authorization of the authorities constituted a clear and unlawful omission on the part of the defendants. The court also highlighted the Captain’s qualifications and verified that he possessed the knowledge of safety regulations that would have prevented him from performing the hot work. It was also noted that the First Officer was responsible for safety, yet no action was taken to prevent the fatal outcome.
Consequently, the court found that the requirements for compensation for moral damages were met: an unlawful act or omission, non-pecuniary damages, and a causal link between the event that caused the harm and the unlawful act or omission. The judgment was modified only to determine that the obligation to pay is joint and several for all defendants and that the First Officer was also responsible for providing compensation.
The Captain of the Punta Blanca unsuccessfully attempted to file an appeal with the National Court of Justice, which was rejected on October 21, 2014, by the Civil Chamber of Judges. He filed an extraordinary appeal for protection with the Constitutional Court, which was rejected on April 21, 2015. The case was returned to the court of origin for enforcement.
El Sr. Soria con nuestro equipo legal. Las resoluciones de este caso pueden ser vistas en:
Jurado de Capitanes y Apelación
https://www.dropbox.com/s/10fhenvz6521fet/Soria%20resoluciones%20.pdf?dl=0
Juicio de Daño Moral
https://www.dropbox.com/s/lvfrhgt38zw2cds/Sentencias.pdf?dl=0