Escolar Documentos
Profissional Documentos
Cultura Documentos
Transportation*for*Atty.*Abano*by*Jason*Arteche*
Bascos vs. CA
Facts
Rodolfo A. Cipriano representing Cipriano Trading Enterprise (CIPTRADE for short) entered into a
hauling contract with Jibfair Shipping Agency Corporation whereby the former bound itself to haul
the latter's soya bean meal. To carry out its obligation, CIPTRADE, through Rodolfo Cipriano,
subcontracted with Estrellita Bascos (petitioner) to transport and to deliver 400 sacks of soya bean
meal. Petitioner failed to deliver the said cargo. As a consequence of that failure, Cipriano paid Jibfair
Shipping Agency the amount of the lost goods in accordance with the contract.
In her answer, petitioner interposed the following defenses:
1. that there was no contract of carriage since CIPTRADE leased her cargo truck to load the
cargo from Manila Port Area to Laguna;
2. that the truck carrying the cargo was hijacked; that the hijacking was immediately reported to
CIPTRADE and that petitioner and the police exerted all efforts to locate the hijacked
properties; that after preliminary investigation, an information for robbery and carnapping
were filed against Jose Opriano, et al.; and that hijacking, being a force majeure, exculpated
petitioner from any liability to CIPTRADE.
Issue
Whether or not petitioner is a common carrier.
Held
Common carrier.
The Court of Appeals, in holding that petitioner was a common carrier, found that she admitted in her
answer that she did business under the name A.M. Bascos Trucking and that said admission dispensed
with the presentation by private respondent, Rodolfo Cipriano, of proofs that petitioner was a
common carrier. Moreover, both courts appreciated the following pieces of evidence as indicators that
petitioner was a common carrier:
1. the fact that the truck driver of petitioner, Maximo Sanglay, received the cargo consisting of
400 bags of soya bean meal as evidenced by a cargo receipt signed by Maximo Sanglay;
2. the fact that the truck helper, Juanito Morden, was also an employee of petitioner; and the fact
that control of the cargo was placed in petitioner's care.
In disputing the conclusion of the trial and appellate courts that petitioner was a common carrier, she
alleged in this petition that the contract between her and Rodolfo A. Cipriano, representing
CIPTRADE, was lease of the truck. She cited as evidence certain affidavits which referred to the
contract as "lease". These affidavits were made by Jesus Bascos and by petitioner herself. She further
averred that Jesus Bascos confirmed in his testimony his statement that the contract was a lease
contract. She also stated that: she was not catering to the general public. Thus, in her answer to the
amended complaint, she said that she does business under the same style of A.M. Bascos Trucking,
offering her trucks for lease to those who have cargo to move, not to the general public but to a few
customers only in view of the fact that it is only a small business.
We agree with the respondent Court in its finding that petitioner is a common carrier.
In this case, petitioner herself has made the admission that she was in the trucking business, offering
her trucks to those with cargo to move. Judicial admissions are conclusive and no evidence is required
to prove the same.
But petitioner argues that there was only a contract of lease because they offer their services only to a
select group of people and because the private respondents, plaintiffs in the lower court, did not object
to the presentation of affidavits by petitioner where the transaction was referred to as a lease contract.
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Regarding the first contention, the holding of the Court in De Guzman vs. Court of Appeals is
instructive.
The above article makes no distinction between one whose principal business activity is the carrying of persons
or goods or both, and one who does such carrying only as an ancillary activity (in local idiom, as a "sideline").
Article 1732 also carefully avoids making any distinction between a person or enterprise offering transportation
service on a regular or scheduled basis and one offering such service on an occasional, episodic or unscheduled
basis. Neither does Article 1732 distinguish between a carrier offering its services to the "general public," i.e.,
the general community or population, and one who offers services or solicits business only from a narrow
segment of the general population. We think that Article 1732 deliberately refrained from making such
distinctions.
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!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1!Offering!services!to!1!customer!exclusively,!even!if!on!a!regular!basis,!doesnt!make!one!a!common!
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
Crisostomo vs. CA
Facts
Petitioner Estela L. Crisostomo contracted the services of respondent Caravan Travel and Tours
International, Inc. to arrange and facilitate her booking, ticketing and accommodation in a tour
dubbed Jewels of Europe.
Pursuant to said contract, Menor, respondents ticketing manager and petitioners niece, delivered
petitioners travel documents and plane tickets. Petitioner, in turn, gave Menor the full payment for
the package tour. Menor then told her to be at the Ninoy Aquino International Airport (NAIA) on
Saturday.
Without checking her travel documents, petitioner went to NAIA on Saturday, June 15, 1991, to take
the flight for the first leg of her journey from Manila to Hongkong. To petitioners dismay, she
discovered that the flight she was supposed to take had already departed the previous day. She
learned that her plane ticket was for the flight scheduled on June 14, 1991. She thus called up Menor
to complain.
Subsequently, Menor prevailed upon petitioner to take another tour the British Pageant. For this
tour package, petitioner was asked anew to pay more, which she did, and commenced the trip.
Upon petitioners return from Europe, she demanded from respondent reimbursement representing the
difference between the sum she paid for Jewels of Europe and the amount she owed respondent for
the British Pageant tour. Despite several demands, respondent company refused to reimburse the
amount, contending that the same was non-refundable. Petitioner was thus constrained to file a
complaint against respondent for breach of contract of carriage and damages.
Issue
Whether or not respondent is a common carrier.
Held
Not a common carrier.
Respondent is not an entity engaged in the business of transporting either passengers or goods and is
therefore, neither a private nor a common carrier. Respondent did not undertake to transport petitioner
from one place to another since its covenant with its customers is simply to make travel arrangements
in their behalf. Respondents services as a travel agency include procuring tickets and facilitating
travel permits or visas as well as booking customers for tours.
While petitioner concededly bought her plane ticket through the efforts of respondent company, this
does not mean that the latter ipso facto is a common carrier. At most, respondent acted merely as an
agent of the airline, with whom petitioner ultimately contracted for her carriage to Europe.
Respondents obligation to petitioner in this regard was simply to see to it that petitioner was properly
booked with the airline for the appointed date and time. Her transport to the place of destination,
meanwhile, pertained directly to the airline.
The object of petitioners contractual relation with respondent is the latters service of arranging and
facilitating petitioners booking, ticketing and accommodation in the package tour. In contrast, the
object of a contract of carriage is the transportation of passengers or goods. It is in this sense that the
contract between the parties in this case was an ordinary one for services and not one of carriage.
Petitioners submission is premised on a wrong assumption.
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
The finance-lease agreement between Equitable on the one hand and Lim or Ecatine on the other has
already been superseded by the sale. In any event, it does not bind third persons.
Further, petitioners insistence on FGU Insurance Corp. v. Court of Appeals is misplaced. First, in
FGU Insurance, the registered vehicle owner, which was engaged in a rent-a-car business, rented out
the car. In this case, the registered owner of the truck, which is engaged in the business of financing
motor vehicle acquisitions, has actually sold the truck to Ecatine, which in turn employed Tutor.
Second, in FGU Insurance, the registered owner of the vehicle was not held responsible for the
negligent acts of the person who rented one of its cars, because Article 2180 of the Civil Code was not
applicable. We held that no vinculum juris as employer and employee existed between the owner and
the driver. In this case, the registered owner of the tractor is considered under the law to be the
employer of the driver, while the actual operator is deemed to be its agent. Thus, Equitable, the
registered owner of the tractor, is -- for purposes of the law on quasi delict -- the employer of Raul
Tutor, the driver of the tractor. Ecatine, Tutors actual employer, is deemed as merely an agent of
Equitable.
True, the LTO Certificate of Registration, dated 5/31/91, qualifies the name of the registered owner
as EQUITABLE LEASING CORPORATION/Leased to Edwin Lim. But the lease agreement
between Equitable and Lim has been overtaken by the Deed of Sale on December 9, 1992, between
petitioner and Ecatine. While this Deed does not affect respondents in this quasi delict suit, it
definitely binds petitioner because, unlike them, it is a party to it.
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
the issuance of certificates establishes seaworthiness. Authorities are clear that diligence in securing
certificates of seaworthiness does not satisfy the vessel owners obligation. Also securing the approval
of the shipper of the cargo, or his surveyor, of the condition of the vessel or her stowage does not
establish due diligence if the vessel was in fact unseaworthy, for the cargo owner has no obligation in
relation to seaworthiness.
In the case at bar, petitioner is liable for the insured value of the lost cargo of industrial fuel oil
belonging to Caltex for its failure to rebut the presumption of fault or negligence as common carrier
occasioned by the unexplained sinking of its vessel, MT Maysun, while in transit.
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
In such cases, the delivery must be made within a reasonable time. The law implies that if no time is
fixed, delivery shall be made within a reasonable time, in the absence of anything to show that an
immediate delivery intended.
We, therefore, hold that in the subject contracts, time was not of the essence. The delivery of the
cylinder liners on 20 April 1990 was made within a reasonable period of time considering that
respondent had to place the order for the cylinder liners with its principal in Japan and that the latter
was, at that time, beset by heavy volume of work.
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
The distinction between the two kinds of charter parties (i.e. bareboat or demise and contract of
affreightment) is more clearly set out in the case of Puromines, Inc. vs. Court of Appeals, wherein we
ruled:
Under the demise or bareboat charter of the vessel, the charterer will generally be regarded as the owner for
the voyage or service stipulated. To create a demise, the owner of a vessel must completely and exclusively
relinquish possession, command and navigation thereof to the charterer, anything short of such a complete
transfer is a contract of affreightment (time or voyage charter party) or not a charter party at all.
On the other hand a contract of affreightment is one in which the owner of the vessel leases part or all of its
space to haul goods for others. It is a contract for special service to be rendered by the owner of the vessel and
under such contract the general owner retains the possession, command and navigation of the ship, the
charterer or freighter merely having use of the space in the vessel in return for his payment of the charter
hire. . . . .
. . . . An owner who retains possession of the ship though the hold is the property of the charterer, remains
liable as carrier and must answer for any breach of duty as to the care, loading and unloading of the cargo. . . .
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
Although a charter party may transform a common carrier into a private one, the same however is not
true in a contract of affreightment on account of the aforementioned distinctions between the two.
Petitioner admits that the contract it entered into with the consignee was one of affreightment. We
agree. Pag-asa Sales, Inc. only leased three of petitioner's vessels, in order to carry cargo from one
point to another, but the possession, command and navigation of the vessels remained with petitioner
Coastwise Lighterage.
Next, the law and jurisprudence on common carriers both hold that the mere proof of delivery of
goods in good order to a carrier and the subsequent arrival of the same goods at the place of
destination in bad order makes for a prima facie case against the carrier. It follows then that the
presumption of negligence that attaches to common carriers, once the goods it transports are lost,
destroyed or deteriorated, applies to the petitioner. This presumption, which is overcome only by
proof of the exercise of extraordinary diligence, remained unrebutted in this case.
Petitioner's assertion is belied by the evidence on record where it appeared that far from having
rendered service with the greatest skill and utmost foresight, and being free from fault, the carrier was
culpably remiss in the observance of its duties. Jesus R. Constantino, the patron of the vessel
"Coastwise 9" admitted that he was not licensed.
Clearly, petitioner Coastwise Lighterage's embarking on a voyage with an unlicensed patron violates
this rule. It cannot safely claim to have exercised extraordinary diligence, by placing a person whose
navigational skills are questionable, at the helm of the vessel which eventually met the fateful
accident. It may also logically, follow that a person without license to navigate, lacks not just the skill
to do so, but also the utmost familiarity with the usual and safe routes taken by seasoned and legally
authorized ones. Had the patron been licensed, he could be presumed to have both the skill and the
knowledge that would have prevented the vessel's hitting the sunken derelict ship that lay on their way
to Pier 18.
As a common carrier, petitioner is liable for breach of the contract of carriage, having failed to
overcome the presumption of negligence with the loss and destruction of goods it transported, by
proof of its exercise of extraordinary diligence.
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
2!(1)! The! Carrier! does! not! undertake! that! the! goods! shall! arive! at! the! port! of! discharge! or! the! place! of!
delivery!at!any!particular!time!or!to!meet!any!particular!market!or!use!and!save!as!is!provided!in!clause!4!
the! Carrier! shall! in! no! circumstances! be! liable! for! any! direct,! indirect! or! consequential! loss! or! damage!
caused!by!delay.!If!the!Carrier!should!nevertheless!be!held!legally!liable!for!any!such!direct!or!indirect!or!
consequential!loss!or!damage!caused!by!delay,!such!liability!shall!in!no!event!exceed!the!freight!paid!for!
the!transport!covered!by!this!Bill!of!Lading.!
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However, the aforequoted ruling applies only if such contracts will not create an absurd situation as in
the case at bar. The questioned provision in the subject bill of lading has the effect of practically
leaving the date of arrival of the subject shipment on the sole determination and will of the carrier.
While it is true that common carriers are not obligated by law to carry and to deliver merchandise, and
persons are not vested with the right to prompt delivery, unless such common carriers previously
assume the obligation to deliver at a given date or time, delivery of shipment or cargo should at least
be made within a reasonable time.
The oft-repeated rule regarding a carrier's liability for delay is that in the absence of a special contract,
a carrier is not an insurer against delay in transportation of goods. When a common carrier undertakes
to convey goods, the law implies a contract that they shall be delivered at destination within a
reasonable time, in the absence, of any agreement as to the time of delivery. But where a carrier has
made an express contract to transport and deliver properly within a specified time, it is bound to fulfill
its contract and is liable for any delay, no matter from what cause it may have arisen.
An examination of the subject bill of lading shows that the subject shipment was estimated to arrive in
Manila on April 3, 1977. While there was no special contract entered into by the parties indicating the
date of arrival of the subject shipment, petitioner nevertheless, was very well aware of the specific
date when the goods were expected to arrive as indicated in the bill of lading itself. In this regard,
there arises no need to execute another contract for the purpose as it would be a mere superfluity.
In the case before us, we find that a delay in the delivery of the goods spanning a period of two (2)
months and seven (7) days falls was beyond the realm of reasonableness.
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
The argument does not persuade. The records show that the D/B Lucio was the only vessel left at San
Jose, Antique, during the time in question. The other vessels were transferred and temporarily moved
to Malandong, 5 kilometers from wharf where the barge remained. Clearly, the transferred vessels
were definitely safer in Malandong than at the port of San Jose, Antique, at that particular time, a fact
which petitioners failed to dispute.
ANCOs arguments boil down to the claim that the loss of the cargoes was caused by the typhoon
Sisang, a fortuitous event (caso fortuito), and there was no fault or negligence on their part. In fact,
ANCO claims that their crewmembers exercised due diligence to prevent or minimize the loss of the
cargoes but their efforts proved no match to the forces unleashed by the typhoon which, in petitioners
own words was, by any yardstick, a natural calamity, a fortuitous event, an act of God, the
consequences of which petitioners could not be held liable for.
In this case, the calamity which caused the loss of the cargoes was not unforeseen nor was it
unavoidable. In fact, the other vessels in the port of San Jose, Antique, managed to transfer to another
place, a circumstance which prompted SMCs District Sales Supervisor to request that the D/B Lucio
be likewise transferred, but to no avail. The D/B Lucio had no engine and could not maneuver by
itself. Even if ANCOs representatives wanted to transfer it, they no longer had any means to do so as
the tugboat M/T ANCO had already departed, leaving the barge to its own devices. The captain of the
tugboat should have had the foresight not to leave the barge alone considering the pending storm.
While the loss of the cargoes was admittedly caused by the typhoon Sisang, a natural disaster, ANCO
could not escape liability to respondent SMC. The records clearly show the failure of petitioners
representatives to exercise the extraordinary degree of diligence mandated by law. To be exempted
from responsibility, the natural disaster should have been the proximate and only cause of the loss.
There must have been no contributory negligence on the part of the common carrier.
Therefore, as correctly pointed out by the appellate court, there was blatant negligence on the part of
M/T ANCOs crewmembers, first in leaving the engine-less barge D/B Lucio at the mercy of the
storm without the assistance of the tugboat, and again in failing to heed the request of SMCs
representatives to have the barge transferred to a safer place, as was done by the other vessels in the
port; thus, making said blatant negligence the proximate cause of the loss of the cargoes.
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
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Transportation*for*Atty.*Abano*by*Jason*Arteche*
presumption of negligence does not attach and these instances are enumerated in Article 1734. In
those cases where the presumption is applied, the common carrier must prove that it exercised
extraordinary diligence in order to overcome the presumption.
Respondent Federal Phoenix Assurance raised the presumption of negligence against petitioners.
However, they failed to overcome it by sufficient proof of extraordinary diligence
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However, the loss of the vessel was caused not only by the southwestern monsoon, but also by the
shifting of the logs in the hold. Such shifting could been due only to improper stowage. The vessel
felt the strain because the logs in the bodega shifted and there were already seawater that seeped
inside. Had the logs not shifted, the ship could have survived and reached at least the port of El
Nido.
Being clearly prone to shifting, the round logs should not have been stowed with nothing to hold them
securely in place. Each pile of logs should have been lashed together by cable wire, and the wire
fastened to the side of the hold. Considering the strong force of the wind and the roll of the waves, the
loose arrangement of the logs did not rule out the possibility of their shifting. By force of gravity,
those on top of the pile would naturally roll towards the bottom of the ship.
The evidence indicated that strong southwest monsoons were common occurrences during the month
of July. Thus, the officers and crew of M/V Central Bohol should have reasonably anticipated heavy
rains, strong winds and rough seas. They should then have taken extra precaution in stowing the logs
in the hold, in consonance with their duty of observing extraordinary diligence in safeguarding the
goods. But the carrier took a calculated risk in improperly securing the cargo. Having lost that risk, it
cannot now escape responsibility for the loss.
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(b) the event that constituted the caso fortuito must have been impossible to foresee or, if
foreseeable, impossible to avoid;
(c) the occurrence must have been such as to render it impossible for the debtors to fulfill their
obligation in a normal manner; and
(d) the obligor must have been free from any participation in the aggravation of the resulting
injury to the creditor.
To fully free a common carrier from any liability, the fortuitous event must have been the proximate
and only cause of the loss. And it should have exercised due diligence to prevent or minimize the loss
before, during and after the occurrence of the fortuitous event.
Respondent cites the squall that occurred during the voyage as the fortuitous event that overturned
M/B Coco Beach III. As reflected above, however, the occurrence of squalls was expected under the
weather condition. Moreover, evidence shows that M/B Coco Beach III suffered engine trouble before
it capsized and sank. The incident was, therefore, not completely free from human intervention.
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PAL vs. CA
Facts
Respondent Co accompanied by his wife and son, arrived at the Manila International Airport aboard
defendant airline's PAL Flight from San Francisco, California, U.S.A. Soon after his embarking (sic),
plaintiff proceeded to the baggage retrieval area to claim his checks in his possession. Plaintiff found
eight of his luggage, but despite diligent search, he failed to locate his ninth luggage.
He then immediately notified defendant company. The printed form known as a Property Irregularity
Report was filled out acknowledging one of the plaintiff's luggages to be missing and signed after
asking respondent himself to sign the same document. In accordance with this procedure in cases of
this nature, PAL asked plaintiff to surrender the nine claim checks corresponding to the nine luggages,
i.e., including the one that was missing.
The incontestable evidence further shows that plaintiff lost luggage was a Samsonite suitcase
measuring about 62 inches in length, worth about US$200.00 and containing various personal effects
purchased by plaintiff and his wife during their stay in the United States and similar other items sent
by their friends abroad to be given as presents to relatives in the Philippines. Plaintiff's invoices
evidencing their purchases show their missing personal effects to be worth US$1,243.01, in addition
to the presents entrusted to them by their friends which plaintiffs testified to be worth about
US$500.00 to US$600.00.
Plaintiff on several occasions unrelentingly called at defendant's office in order to pursue his
complaint about his missing luggage but no avail. Thus, plaintiff wrote a demand letter to defendant
company. PAL never found plaintiff's missing luggage or paid its corresponding value. Consequently,
on May 3, 1985, respondent filed his present complaint against said petitioner.
Issue
Whether or not the Warsaw Convention on limits of liability should be disregarded.
Held
Disregarded.
In Alitalia vs. IAC, the Warsaw Convention limiting the carrier's liability was applied because of a
simple loss of baggage without any improper conduct on the part of the officials or employees of the
airline, or other special injury sustained by the passengers. The petitioner therein did not declare a
higher value for his luggage, much less did he pay an additional transportation charge.
Petitioner contends that under the Warsaw Convention, its liability, if any, cannot exceed US $20.00
based on weight as private respondent Co did not declare the contents of his baggage nor pay
traditional charges before the flight.
We find no merit in that contention.
The liability of the common carrier for the loss, destruction or deterioration of goods transported from
a foreign country to the Philippines is governed primarily by the New Civil Code. In all matters not
regulated by said Code, the rights and obligations of common carriers shall be governed by the Code
of Commerce and by Special Laws.
Since the passenger's destination in this case was the Philippines, Philippine law governs the liability
of the carrier for the loss of the passenger's luggage.
In this case, the petitioner failed to overcome, not only the presumption, but more importantly, the
private respondent's evidence, proving that the carrier's negligence was the proximate cause of the
loss of his baggage. Furthermore, petitioner acted in bad faith in faking a retrieval receipt to bail itself
out of having to pay Co's claim.
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The Court of Appeals therefore did not err in disregarding the limits of liability under the Warsaw
Convention.
As stated in the Cathay Pacific case, although the Warsaw Convention has the force and effect of law
in this country, being a treaty commitment assumed by the Philippine government, said convention
does not operate as an exclusive enumeration of the instances for declaring a carrier liable for breach
of contract of carriage or as an absolute limit of the extent of that liability. The Warsaw Convention
declares the carrier liable in the enumerated cases and under certain limitations. However, it must not
be construed to preclude the operation of the Civil Code and pertinent laws. It does not regulate, much
less exempt, the carrier from liability for damages for violating the rights of its passengers under the
contract of carriage, especially if willful misconduct on the part of the carriers employees is found or
established.
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This article applies suppletorily pursuant to Article 1766 of the Civil Code.
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Of course, this does not suffice for a resolution of the case at bench for, as earlier stated, the cause of
the delay or interruption was the petitioner's failure to observe extraordinary diligence. Article 698
must then be read together with Articles 2199, 2200, 2201, and 2208 in relation to Article 21 of the
Civil Code.
So read, it means that the petitioner is liable for any pecuniary loss or loss of profits which the private
respondent may have suffered by reason thereof. For the private respondent, such would be the loss of
income if unable to report to his office on the day he was supposed to arrive were it not for the delay.
This, however, assumes that he stayed on the vessel and was with it when it thereafter resumed its
voyage; but he did not. As he and some passengers resolved not to complete the voyage, the vessel
had to return to its port of origin and allow them to disembark. The private respondent then took the
petitioner's other vessel the following day, using the ticket he had purchased for the previous day's
voyage.
Any further delay then in the private respondent's arrival at the port of destination was caused by his
decision to disembark. Had he remained on the first vessel, he would have reached his destination at
noon of 13 November 1991, thus been able to report to his office in the afternoon. He, therefore,
would have lost only the salary for half of a day. But actual or compensatory damages must be proved,
which the private respondent failed to do. There is no convincing evidence that he did not receive his
salary for 13 November 1991 nor that his absence was not excused.
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Calalas vs. CA
Facts
Private respondent Eliza Jujeurche G. Sunga took a passenger jeepney owned and operated by
petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was
given by the conductor an "extension seat," a wooden stool at the back of the door at the rear end of
the vehicle.
Along the way, the jeepney stopped to let a passenger off. As she was seated at the rear of the vehicle,
Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by
Iglecerio Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As a
result, Sunga was injured.
Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by
the former in failing to exercise the diligence required of him as a common carrier. Calalas, on the
other hand, filed a third-party complaint against Francisco Salva, the owner of the Isuzu truck.
The lower court took cognizance of another case filed by Calalas against Salva and Verena, for quasidelict, in which Salva and his driver Verena were held jointly liable to Calalas for the damage to his
jeepney.
Issue
Whether or not the decision in the civil case finding Salva and his driver liable for damage to
petitioner is binding on Sunga.
Held
The decision isnt binding.
The argument that Sunga is bound by the ruling in Civil Case finding the driver and the owner of the
truck liable for quasi-delict ignores the fact that she was never a party to that case and, therefore, the
principle of res judicata does not apply.
Nor are the issues in Civil Case and in the present case the same. The issue in Civil Case was whether
Salva and his driver Verena were liable for quasi-delict for the damage caused to petitioners jeepney.
On the other hand, the issue in this case is whether petitioner is liable on his contract of carriage.
There is, thus, no basis for the contention that the ruling in Civil Case finding Salva and his driver
Verena liable for the damage to petitioners jeepney, should be binding on Sunga. It is immaterial that
the proximate cause of the collision between the jeepney and the truck was the negligence of the truck
driver. The doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions
involving breach of contract.3 The doctrine is a device for imputing liability to a person where there is
no relation between him and another party.
In such a case, law itself creates the obligation. But, where there is a pre-existing contractual relation
between the parties, it is the parties themselves who create the obligation, and the function of the law
is merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some
aspects regulated by the Civil Code are those respecting the diligence required of common carriers
with regard to the safety of passengers as well as the presumption of negligence in cases of death or
injury to passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide,
using the utmost diligence of very cautious persons, with due regard for all the circumstances? We
do not think so. Several factors militate against petitioners contention.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
3!Statement!not!absolute,!see!Bataclan!vs.!Medina!
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First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being
exposed about two meters from the broad shoulders of the highway, and facing the middle of the
highway in a diagonal angle.
Second, it is undisputed that petitioners driver took in more passengers than the allowed seating
capacity of the jeepney.
The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which
the other passengers were exposed. Therefore, not only was petitioner unable to overcome the
presumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidence
shows he was actually negligent in transporting passengers.
We find it hard to give serious thought to petitioners contention that Sungas taking an "extension
seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many
victims of the tragedies in our seas should not be compensated merely because those passengers
assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioners
contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito. A
caso fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable. This
requires that the following requirements be present:
1. The cause of the breach is independent of the debtors will;
2. The event is unforeseeable or unavoidable;
3. The event is such as to render it impossible for the debtor to fulfill his obligation in a normal
manner, and
4. The debtor did not take part in causing the injury to the creditor.
Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters
into the highway.
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consequences of which the passenger must assume or expect. After all, common carriers are not the
insurer of all risks.
Paradoxically, the Court of Appeals, despite the presence of force majeure, still ruled against JAL
relying in our decision in PAL v. Court of Appeals. The reliance is misplaced. The factual
background of the PAL case is different from the instant petition. In that case there was indeed a
fortuitous event resulting in the diversion of the PAL flight. However, the unforeseen diversion was
worsened when private respondents (passenger) was left at the airport and could not even hitch a ride
in a Ford Fiera loaded with PAL personnel, not to mention the apparent apathy of the PAL station
manager as to the predicament of the stranded passengers. In light of these circumstances, we held
that if the fortuitous event was accompanied by neglect and malfeasance by the carriers employees,
an action for damages against the carrier is permissible. Unfortunately, for private respondents, none
of these conditions are present in the instant petition.
We are not prepared, however, to completely absolve petitioner JAL from any liability. While JAL
was no longer required to defray private respondents living expenses during their stay in Narita on
account of the fortuitous event, JAL had the duty to make the necessary arrangements to transport
private respondents on the first available connecting flight to Manila. Petitioner JAL reneged on its
obligation to look after the comfort and convenience of its passengers when it declassified private
respondents from transit passengers to new passengers as a result of which private respondents
were obliged to make the necessary arrangements themselves for the next flight to Manila.
We are not oblivious to the fact that the cancellation of JAL flights to Manila from June 15 to June 21,
1991 caused considerable disruption in passenger booking and reservation. Nevertheless, this does not
excuse JAL from its obligation to make the necessary arrangements to transport private respondents
on its first available flight to Manila. After all, it had a contract to transport private respondents from
the United States to Manila as their final destination. Consequently, the award of nominal damages is
in order.
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passenger therein to leave the carrier's premises whereas in the case at bar, an interval of one (1) hour
had elapsed before the victim met the accident. The primary factor to be considered is the existence of
a reasonable cause as will justify the presence of the victim on or near the petitioner's vessel. We
believe there exists such a justifiable cause.
It is of common knowledge that, by the very nature of petitioner's business as a shipper, the
passengers of vessels are allotted a longer period of time to disembark from the ship than other
common carriers such as a passenger bus. With respect to the bulk of cargoes and the number of
passengers it can load, such vessels are capable of accommodating a bigger volume of both as
compared to the capacity of a regular commuter bus. Consequently, a ship passenger will need at least
an hour as is the usual practice, to disembark from the vessel and claim his baggage whereas a bus
passenger can easily get off the bus and retrieve his luggage in a very short period of time. Verily,
petitioner cannot categorically claim, through the bare expedient of comparing the period of time
entailed in getting the passenger's cargoes, that the ruling in La Mallorca is inapplicable to the case at
bar. On the contrary, if we are to apply the doctrine enunciated therein to the instant petition, we
cannot in reason doubt that the victim Anacleto Viana was still a passenger at the time of the incident.
When the accident occurred, the victim was in the act of unloading his cargoes, which he had every
right to do, from petitioner's vessel. As earlier stated, a carrier is duty bound not only to bring its
passengers safely to their destination but also to afford them a reasonable time to claim their baggage.
It is not definitely shown that one (1) hour prior to the incident, the victim had already disembarked
from the vessel. Petitioner failed to prove this. What is clear to us is that at the time the victim was
taking his cargoes, the vessel had already docked an hour earlier. In consonance with common
shipping procedure as to the minimum time of one (1) hour allowed for the passengers to disembark,
it may be presumed that the victim had just gotten off the vessel when he went to retrieve his baggage.
Yet, even if he had already disembarked an hour earlier, his presence in petitioner's premises was not
without cause. The victim had to claim his baggage which was possible only one (1) hour after the
vessel arrived since it was admittedly standard procedure in the case of petitioner's vessels that the
unloading operations shall start only after that time. Consequently, under the foregoing circumstances,
the victim Anacleto Viana is still deemed a passenger of said carrier at the time of his tragic death.
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This contention has no factual basis. Under Articles 2180 and 2176 of the Civil Code, owners and
managers are responsible for damages caused by their employees. When an injury is caused by the
negligence of a servant or an employee, the master or employer is presumed to be negligent either in
the selection or in the supervision of that employee. This presumption may be overcome only by
satisfactorily showing that the employer exercised the care and the diligence of a good father of a
family in the selection and the supervision of its employee.
The CA said that allowing Pestao to ply his route with a defective speedometer showed laxity on the
part of Metro Cebu in the operation of its business and in the supervision of its employees. The
negligence alluded to here is in its supervision over its driver, not in that which directly caused the
accident. The fact that Pestao was able to use a bus with a faulty speedometer shows that Metro
Cebu was remiss in the supervision of its employees and in the proper care of its vehicles. It had thus
failed to conduct its business with the diligence required by law.
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vehicles, not to exceed safe and legal speed limits, and to know the correct measures to take when a
tire blows up thus insuring the safety of passengers at all times.
It is sufficient to reiterate that the source of a common carrier's legal liability is the contract of
carriage, and by entering into the said contract, it binds itself to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of a very cautious person, with a
due regard for all the circumstances. The records show that this obligation was not met by the
respondents.
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8. BAGGAGE LIABILITY ... The total liability of the Carrier for lost or damaged baggage of the passenger is
LIMITED TO P100.00 for each ticket unless a passenger declares a higher valuation in excess of P100.00, but
not in excess, however, of a total valuation of P1,000.00 and additional charges are paid pursuant to Carrier's
tariffs.
There is no dispute that petitioner did not declare any higher value for his luggage, much less did he
pay any additional transportation charge. But petitioner argues that there is nothing in the evidence to
show that he had actually entered into a contract with PAL limiting the latter's liability for loss or
delay of the baggage of its passengers, and that Article 1750 of the Civil Code has not been complied
with.
While it may be true that petitioner had not signed the plane ticket, he is nevertheless bound by the
provisions thereof. "Such provisions have been held to be a part of the contract of carriage, and valid
and binding upon the passenger regardless of the latter's lack of knowledge or assent to the
regulation". A contract limiting liability upon an agreed valuation does not offend against the policy
of the law forbidding one from contracting against his own negligence.
Considering, therefore, that petitioner had failed to declare a higher value for his baggage, he cannot
be permitted a recovery in excess of P100.00. Besides, passengers are advised not to place valuable
items inside their baggage but "to avail of our V-cargo service ." It is likewise to be noted that there is
nothing in the evidence to show the actual value of the goods allegedly lost by petitioner.
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The basis of the Complaint was the way respondent allegedly treated petitioners like puppets that
could be shuttled to Manila via Los Angeles and Seoul without their consent. Undeniably, it did not
take the time to explain how it would be meeting its contractual obligation to transport them to their
final destination. Its employees merely hustled the confused petitioners into boarding one plane after
another without giving the latter a choice from other courses of action that were available. It
unilaterally decided on the most expedient way for them to reach their final destination.
Passengers Consent
After an examination of the conditions printed on the airline ticket, we find nothing there authorizing
Northwest to decide unilaterally, after the distressed flight landed in Seattle, what other stopping
places petitioners should take and when they should fly. Nothing there permits shuttling passengers -without so much as a by your-leave -- to stopping places that they have not been previously notified
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of, much less agreed to or been prepared for. Substituting aircrafts or carriers without notice is
entirely different from changing stopping places or connecting cities without notice.
Proof of Necessity of Alteration
Furthermore, the change in petitioners flight itinerary does not fall under the situation covered by the
phrase may alter or omit stopping places shown on the ticket in case of necessity. The airplane
engine trouble that developed during the flight bound for Tokyo from San Francisco definitely
merited the necessity of landing the plane at some place for repair -- in this case, Seattle -- but not
that of shuttling petitioners to other connecting points thereafter without their consent.
Northwest failed to show a case of necessity for changing the stopping place from Tokyo to Los
Angeles and Seoul. It is a fact that some of the passengers on the distressed flight continued on to the
Tokyo (Narita) connecting place. No explanation whatsoever was given to petitioners as to why they
were not similarly allowed to do so. In the absence of evidence as to the actual situation, the Court is
hard pressed to determine if there was a case of necessity sanctioning the alteration of the Tokyo
stopping place in the case of petitioners. Thus, we hold that in the absence of a demonstrated
necessity thereof and their rerouting to Los Angeles and Seoul as stopping places without their
consent, respondent committed a breach of the contract of carriage.
A claim for the alleged lost items from the baggage of petitioners cannot prosper, because they failed
to give timely notice of the loss to respondent. The Conditions printed on the airline ticket plainly
read:
2.
Carriage hereunder is subject to the rules and limitations relating to liability established by the
Warsaw Convention unless such carriage is not International carriage as defined by that Convention.
xxx
xxx
xxx
7.
Checked baggage will be delivered to bearer of the baggage check. In case of damage to baggage
moving in international transportation complaint must be made in writing to carrier forthwith after discovery of
damage, and at the latest, within 7 days from receipt; in case of delay, complaint must be made within 21 days
from date the baggage was delivered. x x x.
The pertinent provisions of the Rules Relating to International Carriage by Air (Warsaw Convention)
state:
Article 26
1. Receipt by the person entitled to delivery of luggage or goods without complaint is prima facie evidence that
the same have been delivered in good condition and in accordance with the document of carriage.
2. In case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of
the damage, and, at the latest, within three days from the date of receipt in the case of luggage and seven days
from date of receipt in the case of goods. In the case of delay the complaint must be made at the latest within
fourteen days from the date on which the luggage or goods have been placed at his disposal.
3. Every complaint must be made in writing upon the document of carriage or by separate notice in writing
dispatched within the times aforesaid.
4. Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud
on his part.
After allegedly finding that their luggage had been ransacked, petitioners never lodged a complaint
with any Northwest airport personnel. Neither did they mention the alleged loss of their valuables in
their demand letter. Hence, in accordance with the parties contract of carriage, no claim can be heard
or admitted against respondent with respect to alleged damage to or loss of petitioners baggage.
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Yobido vs. CA
Facts
Sps. Tito and Leny Tumboy and their minor children boarded at Mangagoy, Surigao del Sur, a
Yobido Liner bus bound for Davao City. Along Picop Road in Km. 17, Sta. Maria, Agusan del Sur,
the left front tire of the bus exploded. The bus fell into a ravine around three (3) feet from the road
and struck a tree. The incident resulted in the death of 28-year-old Tito Tumboy and physical injuries
to other passengers.
A complaint for breach of contract of carriage, damages and attorneys fees was filed by Leny and her
children against Alberta Yobido, the owner of the bus, and Cresencio Yobido, its driver, before the
Regional Trial Court of Davao City. When the defendants therein filed their answer to the complaint,
they raised the affirmative defense of caso fortuito.
According to Leny Tumboy, the winding road the bus traversed was not cemented and was wet due to
the rain; it was rough with crushed rocks. The bus which was full of passengers had cargoes on top.
Since it was running fast, she cautioned the driver to slow down but he merely stared at her through
the mirror.
For their part, the defendants tried to establish that the accident was due to a fortuitous event.
Abundio Salce, who was the bus conductor when the incident happened, testified that the 42-seater
bus was not full as there were only 32 passengers, such that he himself managed to get a seat. He
added that the bus was running at a speed of 60 to 50 and that it was going slow because of the
zigzag road. He affirmed that the left front tire that exploded was a brand new tire that he mounted
on the bus only five (5) days before the incident. The tire was branded Goodyear.
Issue
Whether or not the explosion of a newly installed tire of a passenger vehicle is a fortuitous event that
exempts the carrier from liability for the death of a passenger.
Held
Doesnt exempt.
When a passenger is injured or dies while travelling, the law presumes that the common carrier is
negligent. In culpa contractual, once a passenger dies or is injured, the carrier is presumed to have
been at fault or to have acted negligently. This disputable presumption may only be overcome by
evidence that the carrier had observed extraordinary diligence or that the death or injury of the
passenger was due to a fortuitous event. Consequently, the court need not make an express finding of
fault or negligence on the part of the carrier to hold it responsible for damages sought by the
passenger.
Petitioners contention that they should be exempt from liability because the tire blowout was no
more than a fortuitous event that could not have been foreseen, must fail. Under the circumstances of
this case, the explosion of the new tire may not be considered a fortuitous event. There are human
factors involved in the situation. The fact that the tire was new did not imply that it was entirely free
from manufacturing defects or that it was properly mounted on the vehicle. Neither may the fact that
the tire bought and used in the vehicle is of a brand name noted for quality, resulting in the conclusion
that it could not explode within five days use. Be that as it may, it is settled that an accident caused
either by defects in the automobile or through the negligence of its driver is not a caso fortuito that
would exempt the carrier from liability for damages.
Moreover, a common carrier may not be absolved from liability in case of force majeure or fortuitous
event alone. The common carrier must still prove that it was not negligent in causing the death or
injury resulting from an accident.
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It is interesting to note that petitioners proved through the bus conductor, Salce, that the bus was
running at 60-50 kilometers per hour only or within the prescribed lawful speed limit. However,
they failed to rebut the testimony of Leny Tumboy that the bus was running so fast that she cautioned
the driver to slow down. These contradictory facts must, therefore, be resolved in favor of liability in
view of the presumption of negligence of the carrier in the law. Coupled with this is the established
condition of the road rough, winding and wet due to the rain. It was incumbent upon the defense to
establish that it took precautionary measures considering partially dangerous condition of the road.
As stated above, proof that the tire was new and of good quality is not sufficient proof that it was not
negligent. Petitioners should have shown that it undertook extraordinary diligence in the care of its
carrier, such as conducting daily routinary check-ups of the vehicles parts.
Having failed to discharge its duty to overthrow the presumption of negligence with clear and
convincing evidence, petitioners are hereby held liable for damages.
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Bayasen vs. CA
Facts
On the morning of August 15, 1963, Saturnino Bayasen, the Rural Health Physician in Sagada,
Mountain Province, went to barrio Ambasing to visit a patient. Two nurses from the Saint Theodore's
Hospital in Sagada, viz., Elena Awichen and Dolores Balcita, rode with him in the jeep assigned for
the use of the Rural Health Unit as they had requested for a ride to Ambasing. Later, at Ambasing, the
girls, who wanted to gather flowers, again asked if they could ride with him up to a certain place on
the way to barrio Suyo which he intended to visit anyway. Dr. Bayasen again allowed them to ride,
Elena sitting herself between him and Dolores. On the way, at barrio Langtiw, the jeep went over a
precipice About 8 feet below the road, it was blocked by a pine tree. The three were thrown out of the
jeep. Elena was found lying in a creek further below. Among other injuries, she suffered a skull
fracture which caused her death.
Issue
Whether or not petitioner was negligent.
Held
Not negligent.
A careful examination of 'the evidence introduced by the prosecution shows no "legally sufficient"
proof that the accused was negligent in driving his jeep. The star witness of the prosecution, Dolores
Balcita who was one of the passengers in the jeep, testified that the accused-petitioner, Saturnino
Bayasen was driving his jeep moderately just before the accident and categorically stated that she did
not know what caused the jeep to fall into the precipice.
It is clear from the last part of the Testimony of the witness, Dolores Balcita, that there was no
conversation between the passengers in the jeep that could have distracted the attention of the accused
while driving the jeep. As to the condition of the jeep itself, the same witness testified that she "did
not notice anything wrong" with it from the time they drove. Regarding the road, she said that it was
fair enough to drive on, but that it was moist or wet, and the weather was fair, too. As to whether the
accused-petitioner was under the influence of liquor at the time of the accident, she testified that he
was not.
The petitioner testified that before reaching the portion of the road where the jeep fell he noticed that
the rear wheel skidded, while driving from 8 to 10 kilometers per hour; that as a precautionary
measure, he directed the jeep towards the side of the mountain, along the side of the mountain, but not
touching the mountain; that while doing so, the late Elena Awichen suddenly held the steering wheel
and he felt that her foot stepped on his right foot which was pressed then on the accelerator; and that
immediately after, the jeep suddenly swerved to the right and went off.
From the foregoing testimony of Dolores Balcita, it is apparent that she "did not see" what Elena
Awichen suddenly did, and she "did not feel any movement from (her) side". Furthermore , the
statement of Dolores Balcita that the accused was driving at moderate speed and not "an unreasonable
speed' is bolstered by the testimony of Pablo Lizardo who found the jeep at second gear when he
examined it not long after the incident. Such fact shows that the accused-petitioner could not have
been driving the jeep at a fast rate of speed. It is obvious that the proximate cause of the tragedy was
the skidding of the rear wheels of the jeep and not the "unreasonable speed" of the petitioner because
there is no evidence on record to prove or support the finding that the petitioner was driving a at "an
unreasonable speed.
It is a well known physical fact that cars may skid on greasy or slippery roads, as in the instant case,
without fault on account of the manner of handling the car. Skidding means partial or complete loss of
control of the car under circumstances not necessarily implying negligence. It may occur without fault.
No negligence as a matter of law can, therefore, be charged to the petitioner. In fact, the moment he
felt that the rear wheels of the jeep skidded, he promptly drove it to the left hand side of the road,
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parallel to the slope of the mountain, because as he said, he wanted to play safe and avoid the
embankment.
Under the particular circumstances of the instant case, the petitioner- driver who skidded could not be
regarded as negligent, the skidding being an unforeseen event, so that the petitioner had a valid excuse
for his departure from his regular course. The negligence of the petitioner not having been sufficiently
established, his guilt of the crime charged has not been proven beyond reasonable doubt. He is,
therefore, entitled to acquittal.
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From the foregoing, it is evident that petitioner's employees failed to prevent the attack on one of
petitioner's buses because they did not exercise the diligence of a good father of a family. Hence,
petitioner should be held liable for the death of Atty. Caorong.
Second. Seizure of Petitioner's Bus not a Case of Force Majeure
The petitioner contends that the seizure of its bus by the armed assailants was a fortuitous event for
which it could not be held liable.
Despite the report of PC agent Generalao that the Maranaos were going to attack its buses, petitioner
took no steps to safeguard the lives and properties of its passengers. The seizure of the bus of the
petitioner was foreseeable and, therefore, was not a fortuitous event which would exempt petitioner
from liabilty.
In the present case, this factor of unforeseeability (the second requisite for an event to be considered
force majeure) is lacking. As already stated, despite the report of PC agent Generalao that the
Maranaos were planning to burn some of petitioner's buses and the assurance of petitioner's operation
manager (Diosdado Bravo) that the necessary precautions would be taken, nothing was really done by
petitioner to protect the safety of passengers.
Third. Deceased not Guilty of Contributory Negligence
The petitioner contends that Atty. Caorong was guilty of contributory negligence in returning to the
bus to retrieve something. But Atty. Caorong did not act recklessly. It should be pointed out that the
intended targets of the violence were petitioners and its employees, not its passengers. The assailant's
motive was to retaliate for the loss of life of two Maranaos as a result of the collision between
petitioner's bus and the jeepney in which the two Maranaos were riding. Mananggolo, the leader of
the group which had hijacked the bus, ordered the passengers to get off the bus as they intended to
burn it and its driver. The armed men actually allowed Atty. Caorong to retrieve something from the
bus. What apparently angered them was his attempt to help the driver of the bus by pleading for his
life. He was playing the role of the good Samaritan. Certainly, this act cannot considered an act of
negligence, let alone recklessness.
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Singson vs. CA
Facts
CARLOS SINGSON and his cousin bought from Cathay Pacific Airways, Ltd. (CATHAY), two (2)
open-dated, identically routed, round trip plane tickets for the purpose of spending their vacation in
the United States. Each ticket consisted of six (6) flight coupons corresponding to this itinerary. The
procedure was that at the start of each leg of the trip a flight coupon corresponding to the particular
sector of the travel would be removed from the ticket booklet so that at the end of the trip no more
coupon would be left in the ticket booklet.
CARLOS SINGSON and his cousin left Manila on board CATHAY's Flight. They arrived safely in
Los Angeles and after staying there for about three (3) weeks they decided to return to the Philippines.
On 30 June 1988 they arranged for their return flight at CATHAY's Los Angeles Office and chose a
Friday, for their departure. While Tiongson easily got a booking for the flight, SINGSON was not as
lucky. It was discovered that his ticket booklet did not have flight coupon no. 5 corresponding to the
San Francisco-Hongkong leg of the trip. Instead, what was in his ticket was flight coupon no. 3
San Francisco to Los Angeles which was supposed to have been used and removed from the ticket
booklet.
SINGSON commenced an action for damages against CATHAY. He claimed that he insisted on
CATHAY's confirmation of his return flight reservation because of very important and urgent
business engagements in the Philippines. But CATHAY allegedly shrugged off his protestations and
arrogantly directed him to go to San Francisco himself and do some investigations on the matter or
purchase a new ticket subject to refund if it turned out that the missing coupon was still unused or
subsisting. He remonstrated that it was the airline's agent/representative who must have committed the
mistake of tearing off the wrong flight coupon; that he did not have enough money to buy new tickets;
and, CATHAY could conclude the investigation in a matter of minutes because of its facilities.
CATHAY, allegedly in scornful insolence, simply dismissed him like an impertinent "brown pest."
Thus he and his cousin, who deferred his own flight to accompany him, were forced to leave for San
Francisco on the night of 1 July 1988 to verify the missing ticket.
CATHAY denied these allegations and averred that since petitioner was holding an "open-dated"
ticket, which meant that he was not booked on a specific flight on a particular date, there was no
contract of carriage yet existing such that CATHAY's refusal to immediately book him could not be
construed as breach of contract of carriage. Moreover, the coupon had been missing for almost a
month hence CATHAY must first verify its status, i.e., whether the ticket was still valid and
outstanding, before it could issue a replacement ticket to petitioner. CATHAY denied having required
SINGSON to make a trip back to San Francisco; on the other hand, it was the latter who informed
CATHAY that he was making a side trip to San Francisco. Hence, CATHAY advised him that the
response of Hongkong would be copied in San Francisco so that he could conveniently verify thereat
should he wish to.
Issue
Whether or not Cathay was negligent.
Held
Negligent.
CATHAY undoubtedly committed a breach of contract when it refused to confirm petitioner's flight
reservation back to the Philippines on account of his missing flight coupon. The round trip ticket
issued by the carrier to the passenger was in itself a complete written contract by and between the
carrier and the passenger.
Interestingly, it appears that CATHAY was responsible for the loss of the ticket. One of two (2)
things may be surmised from the circumstances of this case: first, US Air (CATHAY's agent) had
mistakenly detached the San Francisco-Hongkong flight coupon thinking that it was the San
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Francisco-Los Angeles portion; or, second, petitioner's booklet of tickets did not from issuance
include a San Francisco-Hongkong flight coupon. In either case, the loss of the coupon was attributed
to the negligence of CATHAY's agents and was the proximate cause of the non-confirmation of
petitioner's return flight.
In the instant case, the following circumstances attended the breach of contract by CATHAY, to wit:
First, the ticket coupon corresponding to the San Francisco-Hongkong flight was missing either due
to the negligence of CATHAY's agents; second, petitioner and his cousin presented their respective
ticket booklets bearing identical itineraries to prove that there had been a mistake in removing the
coupons of petitioner. third, petitioner was directed by CATHAY to go to its San Francisco office and
make the necessary verification concerning the lost coupon himself. This, notwithstanding the fact
that CATHAY was responsible for the loss of the ticket and had all the necessary equipment, e.g.,
computers, fax and telex machines and telephones which could facilitate the verification right there at
its Los Angeles Office.
CATHAY's allegation that it never required petitioner to go to San Francisco is unpersuasive.
Petitioner categorically testified that a lady employee of CATHAY in Los Angeles "insisted that we
take the matter (up) with their office in San Francisco." fourth, private respondent endeavored to show
that it undertook the verification of the lost coupon by sending a telex to its Hongkong Office. It
likewise tried to justify the five (5) days delay in completing the verification process, claiming that it
was due to the time difference between Hongkong and Los Angeles and the coinciding non-working
days in the United States.
But far from helping private respondent's cause, the foregoing testimony only betrayed another act of
negligence committed by its employees in Hongkong. In spite of the fact that they had access to all
records and facilities that would enable them to verify in a matter of minutes, it strangely took them
more than twenty-four (24) hours to complete the verification process and to send their reply to Los
Angeles. The inevitable conclusion is that CATHAY's Hongkong personnel never acted promptly and
timely on the request for verification.
Anent the accusation that private respondent's personnel were rude and arrogant, petitioner failed to
adduce sufficient evidence to substantiate his claim. Nonetheless, such fact will not in any manner
affect the disposition of this case. Private respondent's mistake in removing the wrong coupon was
compounded by several other independent acts of negligence above-enumerated. Taken together, they
indubitably signify more than ordinary inadvertence or inattention and thus constitute a radical
departure from the extraordinary standard of care required of common carriers. Put differently, these
circumstances reflect the carrier's utter lack of care and sensitivity to the needs of its passengers,
clearly constitutive of gross negligence, recklessness and wanton disregard of the rights of the latter,
acts evidently indistinguishable or no different from fraud, malice and bad faith. As the rule now
stands, where in breaching the contract of carriage the defendant airline is shown to have acted
fraudulently, with malice or in bad faith, the award of moral and exemplary damages, in addition to
actual damages, is proper.
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for being, in effect, hearsay. x x x Thus, there is nothing in the record to support petitioners contention that the
fire and explosion originated from barge ITTC-101.
Petitioners vessel was carrying chemical cargo. While knowing that their vessel was carrying
dangerous inflammable chemicals, its officers and crew failed to take all the necessary precautions to
prevent an accident. Petitioner was, therefore, negligent. Knowing fully well that it was carrying
dangerous chemicals, petitioner was negligent in not taking all the necessary precautions in
transporting the cargo.
As a result of the fire and the explosion during the unloading of the chemicals from petitioners vessel,
Respondent Borja suffered damage: and injuries. Hence, the owner or the person in possession and
control of a vessel and the vessel are liable for all natural and proximate damage caused to persons
and property by reason of negligent management or navigation.
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We hold that the trial and appellate courts did not err in finding that petitioner acted in bad faith in
repeatedly ignoring respondents follow-up calls. The alleged entries in the PIR (Property Irregularity
Report) deserve scant consideration, as these have not been properly identified or authenticated by the
airline station representative in Budapest who initiated and inputed the said entries. Furthermore, this
Court cannot accept the convenient excuse given by petitioner that respondent should be faulted in
allegedly not giving his hotel address and telephone number. It is difficult to believe that respondent,
who had just lost his single luggage containing all his necessities for his stay in a foreign land and his
reference materials for a speaking engagement, would not give an information so vital such as his
hotel address and contact number to the airline counter where he had promptly and frantically filed his
complaint. And even assuming arguendo that his Philippine address and contact number were the
only details respondent had provided for the PIR, still there was no explanation as to why petitioner
never communicated with respondents concerning his lost baggage long after respondent had already
returned to the Philippines. While the missing luggage was eventually recovered, it was returned to
respondent only after the trial of this case.
Furthermore, the alleged copy of the PIR confirmed that the only action taken by the petitioner to
locate respondents luggage were telex searches. There was not even any attempt to explain the reason
for the loss of respondents luggage. Clearly, petitioner did not give the attention and care due to its
passenger whose baggage was not transported and delivered to him at his travel destination and
scheduled time. Inattention to and lack of care for the interest of its passengers who are entitled to its
utmost consideration, particularly as to their convenience, amount to bad faith which entitles the
passenger to an award of moral damages.
While respondent failed to cite any act of discourtesy, discrimination or rudeness by petitioners
employees, this did not make his loss and moral suffering insignificant and less deserving of
compensation. In repeatedly ignoring respondents inquiries, petitioners employees exhibited an
indifferent attitude without due regard for the inconvenience and anxiety he experienced after
realizing that his luggage was missing. Petitioner was thus guilty of bad faith in breaching its contract
of carriage with the respondent, which entitles the latter to the award of moral damages.
However, we agree with petitioner that the sum of P1,000,000.00 awarded by the trial court is
excessive and not proportionate to the loss or suffering inflicted on the passenger under the
circumstances.
Where as in this case the air carrier failed to act timely on the passengers predicament caused by its
employees mistake and more than ordinary inadvertence or inattention, and the passenger failed to
show any act of arrogance, discourtesy or rudeness committed by the air carriers employees, the
amounts of P200,000.00, P50,000.00 and P30,000.00 as moral damages, exemplary damages and
attorneys fees would be sufficient and justified.
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This article applies suppletorily pursuant to Article 1766 of the Civil Code.
Of course, this does not suffice for a resolution of the case at bench for, as earlier stated, the cause of
the delay or interruption was the petitioner's failure to observe extraordinary diligence. Article 698
must then be read together with Articles 2199, 2200, 2201, and 2208 in relation to Article 21 of the
Civil Code.
So read, it means that the petitioner is liable for any pecuniary loss or loss of profits which the private
respondent may have suffered by reason thereof. For the private respondent, such would be the loss of
income if unable to report to his office on the day he was supposed to arrive were it not for the delay.
This, however, assumes that he stayed on the vessel and was with it when it thereafter resumed its
voyage; but he did not. As he and some passengers resolved not to complete the voyage, the vessel
had to return to its port of origin and allow them to disembark. The private respondent then took the
petitioner's other vessel the following day, using the ticket he had purchased for the previous day's
voyage.
Any further delay then in the private respondent's arrival at the port of destination was caused by his
decision to disembark. Had he remained on the first vessel, he would have reached his destination at
noon of 13 November 1991, thus been able to report to his office in the afternoon. He, therefore,
would have lost only the salary for half of a day. But actual or compensatory damages must be proved,
which the private respondent failed to do. There is no convincing evidence that he did not receive his
salary for 13 November 1991 nor that his absence was not excused.
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Petitioner paid PG. An action for damages was instituted by the petitioner-insurer against respondentcarrier. Respondent admitted it undertook to transport the consignees shipment from MT
TACHIBANA to the Del Pan Bridge, Pasig River, where it was transferred to its tanker trucks for
hauling to PGPs storage tanks in Calamba, Laguna. The respondent alleged that before the DOP was
loaded into its barge (LB-1011), the surveyor/representative of PGP, Adjustment Standard
Corporation, inspected it and found the same clean, dry, and fit for loading. The entire loading and
unloading of the shipment were also done under the control and supervision of PGPs
surveyor/representative. It was also mentioned by the respondent that the contract between it and PGP
expressly stipulated that it shall be free from any and all claims arising from contamination, loss of
cargo or part thereof; that the consignee accepted the cargo without any protest or notice; and that the
cargo shall be insured by its owner sans recourse against all risks. As subrogee, the petitioner was
bound by this stipulation. As carrier, no fault and negligence can be attributed against respondent as
it exercised extraordinary diligence in handling the cargo.
Issue
Whether or not notice of claim was filed within the required period.
Held
Filed out of time.
Article 366 of the Code of Commerce has profound application in the case at bar. This provision of
law imparts:
Art. 366. Within twenty-four hours following the receipt of the merchandise a claim may be made against the
carrier on account of damage or average found upon opening the packages, provided that the indications of the
damage or average giving rise to the claim cannot be ascertained from the exterior of said packages, in which
case said claim shall only be admitted at the time of the receipt of the packages.
After the periods mentioned have elapsed, or after the transportation charges have been paid, no claim
whatsoever shall be admitted against the carrier with regard to the condition in which the goods transported
were delivered.
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As to the first issue, the petitioner contends that the notice of contamination was given by Alfredo
Chan, an employee of PGP, to Ms. Encarnacion Abastillas, Vice President for Administration and
Operations of the respondent, at the time of the delivery of the cargo, and therefore, within the
required period. This was done by telephone.
The respondent, however, claims that the supposed notice given by PGP over the telephone was
denied by Ms. Abastillas. Between the testimonies of Alfredo Chan and Encarnacion Abastillas, the
latters testimony is purportedly more credible because it would be quite unbelievable and contrary to
business practice for Alfredo Chan to merely make a verbal notice of claim that involves millions of
pesos.
Both courts held that, indeed, a telephone call was made by Alfredo Chan to Encarnacion Abastillas,
informing the latter of the contamination. However, nothing in the trial courts decision stated that the
notice of claim was relayed or filed with the respondent-carrier immediately or within a period of
twenty-four hours from the time the goods were received.
The allegation of the petitioner that not only the Vice President of the respondent was informed, but
also its drivers, as testified by Alfredo Chan, during the time that the delivery was actually being
made, cannot be given great weight as no driver was presented to the witness stand to prove this. The
witness Alfredo Chan had no personal knowledge that the drivers of the respondent were informed of
the contamination.
The requirement that a notice of claim should be filed within the period stated by Article 366 of the
Code of Commerce is not an empty or worthless proviso. The filing of a claim with the carrier within
the time limitation therefore actually constitutes a condition precedent to the accrual of a right of
action against a carrier for loss of, or damage to, the goods. The shipper or consignee must allege and
prove the fulfillment of the condition. If it fails to do so, no right of action against the carrier can
accrue in favor of the former. The aforementioned requirement is a reasonable condition precedent; it
does not constitute a limitation of action.
The second paragraph of Article 366 of the Code of Commerce is also edifying. It is not only when
the period to make a claim has elapsed that no claim whatsoever shall be admitted, as no claim may
similarly be admitted after the transportation charges have been paid.
In this case, there is no question that the transportation charges have been paid, as admitted by the
petitioner, and the corresponding official receipt duly issued. But the petitioner is of the view that the
payment for services does not invalidate its claim. It contends that under the second paragraph of
Article 366 of the Code of Commerce, it is clear that if notice or protest has been made prior to
payment of services, claim against the bad order condition of the cargo is allowed.
We do not believe so. As discussed at length above, there is no evidence to confirm that the notice of
claim was filed within the period provided for under Article 366 of the Code of
Commerce. Petitioners contention proceeds from a false presupposition that the notice of claim was
timely filed.
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Since no action was taken by the defendants on the provisional and formal claims made by the
plaintiff. Thus on September 14, 1963, the plaintiff-appellee filed suit.
Issue
Whether or not the action was filed on time.
Held
On time.
Appellants argue that the action is time-barred because it was brought one (1) year after the date of
last discharge of the goods from the carrying vessel, contrary to paragraph 15 of the Management
Contract between the defendants, which is admittedly binding upon the plaintiff. The pertinent part in
paragraph 15 of the said contract provides:
15. ...in any event the CONTRACTOR (arrastre operator) shall be relieved and released of any and all liability
for loss, damage, misdelivery and/or non-delivery of goods, unless suit in the court of proper jurisdiction is
brought within ... one (1) year from the date of discharge of the goods or from the date when the claim for the
value of such goods has been rejected or denied by the CONTRACTOR within fifteen (15) days from the date of
discharge of the last package from the carrying vessel.
In order to hold the arrastre operator liable for goods lost or damaged, the claimant should, pursuant to the
foregoing provision, take two (2) steps namely: 1] he must file with the operator a claim for the value of said
goods "within fifteen (15) days from the date of discharge of the last package from the carrying vessel" [Atlantic
Mutual Insurance vs. Manila Port Service, L-16789, October 31, 1962; Insurance Company of North America
vs. Manila Port Service, L-17331, November 29, 1961]; and 2] suit should be brought in the court of proper
jurisdiction "within one (1) year from the date of discharge of the goods or from the date when the claim for the
value of such goods has been rejected or denied.
Defendants-appellants contend that the period for filing the plaintiff's complaint should be computed
solely from the date of discharge of the goods from the carrying vessel inasmuch as the claims made
by the plaintiff have not been expressly rejected or denied by them. Since the complaint was filed one
(1) year after the date of the last discharge of the goods, appellants maintain that it should be deemed
barred.
The contention of defendants-appellants is without merit for it overlooks the fact that plaintiff has,
under the management contract, two (2) periods within which to file its action, namely: [a] one (1)
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year from the date of discharge of the goods, and [b] one (1) year from the rejection or denial of its
claim for the value thereof. Obviously, defendants cannot, by not acting on plaintiff's claims, one way
or another, deprive the plaintiff of one of these alternatives. Such would be the result, were we to
accept defendants' contention.
Considering however, that no action, implied or express, was taken by the defendants-appellants on
plaintiff's claims, how then shall the one (1) year prescriptive period be computed?
The right of the plaintiff to sue the defendants might be questionable in the absence of any act or
omission clearly indicating the rejection or denial of said claims by the defendants. Hence, it has been
repeatedly held that, in case of inaction on the part of the arrastre operator, he shall be deemed to have
rejected or denied the importer's claim upon the expiration of one (1) year from the date when the last
package was discharged and that the period within which to file suit shall then begin to run.
Since the arrastre operator did not act on the provisional and formal claims of the plaintiff he shall be
deemed to have denied the importer's claim upon the expiration of one (1) year from the date when
the last package was discharged from the carrying vessel. Since the complaint was filed on September
14, 1963 the same should be considered to have been seasonably filed.
On the second assignment of error, appellants contend that inasmuch as the 15-day period had expired
before the filing of the formal claims in connection with each one of these seven (7) shipments,
plaintiff should be deemed barred from recovering the corresponding indemnity. This is predicated
upon the theory that the provisional claims which were filed within the 15-day period requirement of
the Management Contract, are not claims "for the value" of the goods lost, damaged or not delivered
to the plaintiff.
Such theory is manifestly untenable for (1) it assumes that the claim must state the value of said goods,
which paragraph 15 does not require; and (2) a provisional claim may be sufficient even if the value
of the goods involved were not stated therein, provided it describes said goods sufficiently to permit
its Identification by the operator and the determination by the latter of the facts relevant thereto, such
as the name of the carrying vessel, its date of arrival, the corresponding bill of lading or other
shipping documents in which the value of the goods is set forth, etc., "while the facts are still fresh in
the minds of the persons who took part in the transaction and while the pertinent documents are still
available.
Thus, in Domestic Insurance Company vs. Manila Railroad Company (L-24066, August 30, 1967),
the Supreme Court declared that "... The circumstance that the provisional claim did not specify the
value of the loss" does not detract from the fact that said claim "still substantially fulfills the
requirements of the contract aforementioned and is not a defense against the claim of the consignee
for recovery after it shall have ascertained later its actual loss or damaged ... .
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After the periods mentioned have elapsed, or after the transportation charges have been paid, no
claim whatsoever shall be admitted against the carrier with regard to the condition in which the
goods transported were delivered.
As to the first issue, the petitioner contends that the notice of contamination was given by Alfredo
Chan, an employee of PGP, to Ms. Encarnacion Abastillas, Vice President for Administration and
Operations of the respondent, at the time of the delivery of the cargo, and therefore, within the
required period. This was done by telephone.
The respondent, however, claims that the supposed notice given by PGP over the telephone was
denied by Ms. Abastillas. Between the testimonies of Alfredo Chan and Encarnacion Abastillas, the
latters testimony is purportedly more credible because it would be quite unbelievable and contrary to
business practice for Alfredo Chan to merely make a verbal notice of claim that involves millions of
pesos.
Both courts held that, indeed, a telephone call was made by Alfredo Chan to Encarnacion Abastillas,
informing the latter of the contamination. However, nothing in the trial courts decision stated that the
notice of claim was relayed or filed with the respondent-carrier immediately or within a period of
twenty-four hours from the time the goods were received.
The allegation of the petitioner that not only the Vice President of the respondent was informed, but
also its drivers, as testified by Alfredo Chan, during the time that the delivery was actually being
made, cannot be given great weight as no driver was presented to the witness stand to prove this. The
witness Alfredo Chan had no personal knowledge that the drivers of the respondent were informed of
the contamination.
The requirement that a notice of claim should be filed within the period stated by Article 366 of the
Code of Commerce is not an empty or worthless proviso. The filing of a claim with the carrier within
the time limitation therefore actually constitutes a condition precedent to the accrual of a right of
action against a carrier for loss of, or damage to, the goods. The shipper or consignee must allege and
prove the fulfillment of the condition. If it fails to do so, no right of action against the carrier can
accrue in favor of the former. The aforementioned requirement is a reasonable condition precedent; it
does not constitute a limitation of action.
The second paragraph of Article 366 of the Code of Commerce is also edifying. It is not only when
the period to make a claim has elapsed that no claim whatsoever shall be admitted, as no claim may
similarly be admitted after the transportation charges have been paid.
In this case, there is no question that the transportation charges have been paid, as admitted by the
petitioner, and the corresponding official receipt duly issued. But the petitioner is of the view that the
payment for services does not invalidate its claim. It contends that under the second paragraph of
Article 366 of the Code of Commerce, it is clear that if notice or protest has been made prior to
payment of services, claim against the bad order condition of the cargo is allowed.
We do not believe so. As discussed at length above, there is no evidence to confirm that the notice of
claim was filed within the period provided for under Article 366 of the Code of
Commerce. Petitioners contention proceeds from a false presupposition that the notice of claim was
timely filed.
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Article 366. Within twenty four hours following the receipt of the merchandise, the claim against the carrier for
damages or average which may be found therein upon opening the packages, may be made, provided that the
indications of the damage or average which give rise to the claim cannot be ascertained from the outside part of
such packages, in which case the claim shall be admitted only at the time of receipt.
After the periods mentioned have elapsed, or the transportation charges have been paid, no claim shall be
admitted against the carrier with regard to the condition in which the goods transported were delivered.
The periods above, as well as the manner of giving notice may be modified in the terms of the bill of
lading, which is the contract between the parties. Notably, neither of the parties in this case presented
the terms for giving notices of claim under the bill of lading issued by petitioner for the goods.
The shipment was delivered on August 11, 1993. Although the letter informing the carrier of the
damage was dated August 15, 1993, that letter, together with the notice of claim, was received by
petitioner only on September 21, 1993. But petitioner admits that even before it received the written
notice of claim, Mr. Mayo B. Perez, Claims Head of the company, was informed by telephone
sometime in August 13, 1993. Mr. Perez then immediately went to the warehouse and to the delivery
site to inspect the goods in behalf of petitioner.
In the case of Philippine Charter Insurance Corporation (PCIC) v. Chemoil Lighterage Corporation,
the notice was allegedly made by the consignee through telephone. The claim for damages was denied.
This Court ruled that such a notice did not comply with the notice requirement under the law. There
was no evidence presented that the notice was timely given. Neither was there evidence presented that
the notice was relayed to the responsible authority of the carrier.
As adverted to earlier, there are peculiar circumstances in the instant case that constrain Us to rule
differently from the PCIC case, albeit this ruling is being made pro hac vice, not to be made a
precedent for other cases.
Bernhard Willig, the representative of consignee who received the shipment, relayed the information
that the delivered goods were discovered to have sustained water damage to no less than the Claims
Head of petitioner, Mayo B. Perez. Immediately, Perez was able to investigate the claims himself and
he confirmed that the goods were, indeed, already corroded. We give due consideration to the fact that
the final destination of the damaged cargo was a school institution where authorities are bound by
rules and regulations governing their actions. Understandably, when the goods were delivered, the
necessary clearance had to be made before the package was opened. Upon opening and discovery of
the damaged condition of the goods, a report to this effect had to pass through the proper channels
before it could be finalized and endorsed by the institution to the claims department of the shipping
company.
The call to petitioner was made two days from delivery, a reasonable period considering that the
goods could not have corroded instantly overnight such that it could only have sustained the damage
during transit. Moreover, petitioner was able to immediately inspect the damage while the matter was
still fresh. In so doing, the main objective of the prescribed time period was fulfilled. Thus, there was
substantial compliance with the notice requirement in this case.
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67*
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In the instant case, the consignor is the branch office of Lee Teh & Co., Inc., at Catarman, Samar,
which placed the cargo on board the ship Jupiter, and the consignee, its main office at Manila. The
lower court found that the cargo never reached Manila, its destination, nor was it ever delivered to the
consignee, the office of the shipper in Manila, because the ship ran aground. Such being the case, it
follows that the aforesaid article 366 does not have application because the cargo was never received
by the consignee. Moreover, under the bill of lading, it was the letter's undertaking to bring the cargo
to its destinationManila,and deliver it to consignee, which undertaking was never complied with.
The carrier, therefore, breached its contract, and, as such, it forfeited its right to invoke in its favor the
conditions required by article 366.
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68*
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One case parallel to the present is Roldan vs. Lim Ponzo & Co. In that case, plaintiff sought to recover
damages for failure of defendant to transport 2 sugar from plaintiff's hacienda to Iloilo. It was proven
that the cargo did not reach its destination because the lorcha carrying it was wrecked in the river
through the negligence and lack of skill of the master of the lorcha. Only part of the sugar was saved
but in damaged condition through the efforts made by the shipper. Because plaintiff failed to comply
with the requirement of article 366 of the Code of Commerce, the lower court found for defendant and
dismissed the case. But this Court held that said article "is limited to cases of claims for damages to
goods actually received by the consignee; it has no application in cases wherein the goods entrusted to
the carrier are not delivered to the consignee by the carrier in pursuance of the terms of the carriage
contract." Elaborating on this point, this Court commented:
Article 366 of the Commercial Code is limited to cases of claims for damages to goods actually turned over by
the carrier and received by the consignee, whether those damages be apparent from an examination of the
packages in which the goods are delivered, or of such character that the nature and extend of the damage is not
apparent until the packages are opened and the contents examined. Clearly it has no application in cases
wherein the goods entrusted to the carrier are not delivered by the carrier to the consignee. In such cases there
can be no question of a claim for damages suffered by the goods while in transport, since the claim for damages
arises exclusively out of the failure to make delivery. . . .
We are of opinion, however, that the necessity for making the claim in accordance with that article did not arise
if, as it is alleged, these 1,022 packages, of sugar were recovered from the wreck by the plaintiff, himself, in an
effort, by his own activities, to save his property from total loss. The measures to be taken under the terms of
Article 367 of the Code when the parties are unable to arrive at an amicable settlement of claims for damages
set up in accordance with Article 366, quite clearly indicate that the necessity for the presentation of claims
under this article arises only in those cases wherein the carrier makes delivery and the consignee receives the
goods in pursuance of the terms of the contract.
It is true that in the instant case there is some disagreement as to whether the salvage of the portion of
the cargo that was saved was due to the efforts of the carrier itself or to the combined efforts of the
latter and the shipper as a result of which the salvaged cargo was placed in possession of the shipper
who sold it and deducted its proceeds from the liability of the carrier. But this discrepancy, in our
opinion, would seem to be immaterial because the law as well as the contract contemplates delivery of
the cargo to the consignee at its port of destination in order that the benefit of the law may be availed
of.
The fact that the consignor is but the branch office of the company that shipped the goods, and the
consignee is the main office at Manila, is of no moment, because the duties of each party under the
law are different. Moreover, even if the consignor and the consignee be considered as one and the
same party, still the carrier cannot disclaim responsibility under its contract for the simple reason that
it failed to comply with its obligation to bring the cargo to its destination. This breach alone justifies
its liability under the carriage contract.
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69*
Transportation*for*Atty.*Abano*by*Jason*Arteche*
Lufthansa vs. CA
Facts
Tirso V. Antiporda, Sr. was, contracted by Sycip, Gorres, Velayo & Co. (SGV) to be the institutional
financial specialist for the agricultural credit institution project of the Investment and Development
Bank of Malawi in Africa. For the engagement, Antiporda would be provided one round-trip economy
ticket from Manila to Blantyre and back with a maximum travel time of four days per round-trip.
Lufthansa issued ticket for Antiporda's confirmed flights to Malawi, Africa with itenerary:
Manila to SQ 081 25-9-84 1530 OK
Singapore
Singapore to LH 695 25-9-84 2200 OK
Bombay
Bombay to KQ 203 26-9-84 0215 OK
Nairobi
Nairobi to QM 335 26-9-84 1395 OK
Lilongwe
Lilongwe to QM 031 26-9-84 1600 OK
Blantyre
Antiporda took the Lufthansa flight to Singapore from where he proceeded to Bombay on board the
same airline. He arrived in Bombay as scheduled and waited at the transit area of the airport for his
connecting flight to Nairobi which was, per schedule given him by Lufthansa, to leave Bombay in the
morning of September 26, 1984. Finding no representative of Lufthansa waiting for him at the gate,
Antiporda asked the duty officer of Air India how he could get in touch with Lufthansa. He was told
to call up Lufthansa which informed him that somebody would attend to him shortly. Ten minutes
later, Gerard Matias, Lufthansa's traffic officer, arrived, asked for Antiporda's ticket and told him to
just sit down and wait. Matias returned with one Leslie Benent, duty officer of Lufthansa, who
informed Antiporda that his seat in Air Kenya Flight 203 to Nairobi had been given to a very
important person of Bombay who was attending a religious function in Nairobi. Antiporda protested,
stressing that he had an important professional engagement in Blantyre, Malawi in the afternoon of
September 26, 1984. He requested that the situation be remedied but Air Kenya Flight 203 left for
Nairobi without him on board. Stranded in Bombay, Antiporda was booked for Nairobi via Addis
Ababa only on September 27, 1984. He finally arrived in Blantyre at 9:00 o'clock in the evening of
September 28, 1984, more than a couple of days late for his appointment with people from the
institution he was to work with in Malawi.
Consequently, Antiporda's counsel wrote the general manager of Lufthansa in Manila demanding
damages for the airline's "malicious, wanton, disregard of the contract of carriage." In reply,
Lufthansa general manager Hagen Keilich assured Antiporda that the matter would be investigated.
Apparently getting no positive action from Lufthansa, Antiporda filed a complaint against Lufthansa.
Issue
Whether or not petitioner Lufthansa German Airlines which issued a confirmed Lufthansa ticket to
private respondent Antiporda covering a five-leg trip abroad different airlines should be held liable for
damages occasioned by the "bumping-off" of said private respondent Antiporda by Air Kenya, one of
the airlines contracted to carry him to a particular destination of the five-leg trip.
Held
Liable.
The fourth paragraph of the "Conditions of Contract" stipulated in the ticket indubitably showed that
the contract of carriage was considered as one of continuous air transportation from Manila to
Blantyre, Malawi. In light of the stipulations expressly specified in the ticket defining the true nature
of its contract of carriage with Antiporda, Lufthansa cannot claim that its liability thereon ceased at
Bombay Airport and thence, shifted to the various carriers that assumed the actual task of transporting
said private respondent.
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We, therefore, reject Lufthansa's theory that from the time another carrier was engaged to transport
Antiporda on another segment of his trip, it merely acted as a ticket-issuing agent in behalf of said
carrier. In the very nature of their contract, Lufthansa is clearly the principal in the contract of
carriage with Antiporda and remains to be so, regardless of those instances when actual carriage was
to be performed by various carriers. The issuance of a confirmed Lufthansa ticket in favor of
Antiporda covering his entire five-leg trip abroad successive carriers concretely attests to this. This
also serves as proof that Lufthansa, in effect guaranteed that the successive carriers, such as Air
Kenya would honor his ticket; assure him of a space therein and transport him on a particular segment
of his trip.
This ruling finds corroboration in the Supreme Court decision in KLM thus:
The passage tickets of the respondents provide that the carriage to be performed thereunder by several
successive carriers "is to be regarded as a single operation," which is diametrically incompatible with the
theory of the KLM that the respondents entered into a series of independent contracts with the carriers which
took them on the various segments of their trip. This position of KLM we reject. The respondents dealt
exclusively with the KLM which issued them tickets for their entire trip and which in effect guaranteed to them
that they would have sure space in Aer Lingus flight 861. The respondents, under that assurance of the
internationally prestigious KLM, naturally had the right to expect that their tickets would be honored by Aer
Lingus to which, in the legal sense, the KLM had indorsed and in effect guaranteed the performance of its
principal engagement to carry out the respondents' scheduled itinerary previously and mutually agreed upon
between the parties.
On the issue of whether the Warsaw Convention, particularly Section 2, Article 30 thereof is
applicable herein, we agree with the Court of Appeals in ruling in the negative. We reiterate what has
been settled in KLM:
The applicability insisted upon by the KLM of Article 30 of the Warsaw Convention cannot be sustained. That
article presupposes the occurrence of either an accident or a delay, neither of which took place at the
Barcelona airport; what is here manifest, instead, is that the Aer Lingus, through its manager there, refused to
transport the respondents to their planned and contracted destination. . . .
Lufthansa prays this court to take heed of jurisprudence in the United States where the term "delay"
was interpreted to include "bumping-off" or failure to carry a passenger with a confirmed reservation.
These decisions in the United States are not controlling in this jurisdiction. We are not prepared,
absent reasons of compelling nature, to entertain an extended meaning of the term "delay," which in
KLM was given its ordinary signification.
Consequently, Section 2, Article 30 of the Warsaw Convention which does not contemplate the
instance of "bumping-off" but merely of simple delay, cannot provide a handy excuse for Lufthansa
as to exculpate it from any liability to Antiporda. The payment of damages is, thus, deemed warranted
by this Court.
According to the findings of the appellate court which affirmed that of the lower court, the reasons
given by the witnesses for Lufthansa for private respondent's being "bumped off" at Bombay airport
were conflicting.
Clearly, bad faith attended the performance of the contract of carriage, for even while Antiporda was
in Bombay, representatives of Lufthansa already tried to evade liability first, by claiming that the
contract of carriage between Lufthansa and Antiporda ceased at Bombay airport, in disregard of the
fact that Antiporda was holding a Lufthansa ticket for the entire five-leg trip; second, despite Berndt
Loewe's knowledge that Antiporda's seat was allowed to be given to another passenger, the same
suppressed the information and feigned ignorance of the matter, presenting altogether another reason
why Antiporda was not listed in the manifest, i.e. that Air Kenya Boeing 707 was overbooked,
notwithstanding clear proof that Lufthansa in Manila confirmed his reservation for said flight.
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With respect to PAL and Espiritu, they disclaim any liability on the theory that the former is merely
an agent of CAL and that the suit should have been directed against CAL alone. There is no question
that the contractual relation between both airlines is one of agency. Suffice it to say, however, that in
an action premised on the employee's negligence, whereby respondent Pagsibigan seeks recovery for
the resulting damages from both PAL and Espiritu without qualification, what is sought to be imposed
is the direct and primary liability of PAL as an employer under said Article 2180.
When an injury is caused by the negligence of an employee, there instantly arises a presumption of
law that there was negligence on the part of the employer either in the selection of the employee or in
the supervision over him after such selection. The presumption, however, may be rebutted by a clear
showing on the part of the employer that it has exercised the care and diligence of a good father of a
family in the selection and supervision of his employee.
Hence, to escape solidary liability for the quasi-delict committed by Espiritu, it is imperative that
PAL must adduce sufficient proof that it exercised such degree of care. PAL failed to overcome the
presumption. As found by respondent court, CAL had revised its schedule of flights since April 1,
1968; that after the Civil Aeronautics Board had approved the revised schedule of flights, PAL was
duly informed thereof and, in fact, PAL's Manila Hotel branch office had been issuing and selling
tickets based on the revised time schedule before June 10, 1968.
PAL's main defense is that it is only an agent. As a general proposition, an agent who duly acts as
such is not personally liable to third persons. However, there are admitted exceptions, as in this case
where the agent is being sued for damages arising from a tort committed by his employee.
The respondent court found that the mistake committed by Espiritu was done in good faith. While
there is no evidence that he acted with malice, we can not entirely condone his actuations. As an
employee of PAL, the nature of his functions requires him to observe for the protection of the
interests of another person that degree of care, precaution and vigilance which the circumstances
justly demand. He committed a clear neglect of duty.
Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan under Article 2176 of
the Civil Code. For the failure of PAL to rebut the legal presumption of negligence in the selection
and supervision of its employee, it is also primarily liable under Article 2180 of the same code which
explicitly provides that employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.
Under the aforesaid provision, all that is required is that the employee, by his negligence, committed a
quasi-delict which caused damage to another, and this suffices to hold the employer primarily and
solidarity responsible for the tortious act of the employee. PAL, however, can demand from Espiritu
reimbursement of the amount which it will have to pay the offended party's claim.
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73*
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74*
Transportation*for*Atty.*Abano*by*Jason*Arteche*
Since petitioner did not deliver a seaworthy vessel, petitioner failed to perform his obligation to
Pelaez under the agreement.
Seaworthiness is a relative term. Petitioner claims that MV Christine Gay later undertook voyages
within the Philippines. However, such subsequent voyages in the Philippines do not prove the vessels
seaworthiness to withstand a voyage to South Korea.
The degree of seaworthiness varies in relation to the contemplated voyage. In examining what is
meant by seaworthiness we must bear in mind the dual nature of the carriers obligations under a
contract of affreightment. To satisfy these duties the vessel must (a) be efficient as an instrument of
transport and (b) as a storehouse for her cargo. The latter part of the obligation is sometimes referred
to as cargoworthiness.
A ship is efficient as an instrument of transport if its hull, tackle and machinery are in a state of good
repair, if she is sufficiently provided with fuel and ballast, and is manned by an efficient crew.
And a vessel is cargoworthy if it is sufficiently strong and equipped to carry the particular kind of
cargo which she has contracted to carry, and her cargo must be so loaded that it is safe for her to
proceed on her voyage. A mere right given to the charterer to inspect the vessel before loading and to
satisfy himself that she was fit for the contracted cargo does not free the shipowner from his
obligation to provide a cargoworthy ship.
Petitioner asserts that MV Christine Gay is sufficient in materials, construction, equipment and outfit
as shown by the documents the Philippine Coast Guard (Coast Guard) and the Maritime Industry
Authority (MARINA) issued to petitioners. Petitioner presents the following documents to show
MV Christine Gays seaworthiness: Certificate of Inspection No. 2361-89, Cargo Ship Safety
Equipment Certificate No. 561-89 dated 11 September 1989, Cargo Ship Safety Construction
Certificate No. 538-89, Manning Certificate for Vessels on International Trade, and Special Permit
No. 0313-89 dated 1 September 1989. Petitioner overlooks that these documents are mere prima facie
evidence of the facts stated and contrary proof can overturn such prima facie evidence. The trial court
relied, however, on the testimonies of Engineer Panaguiton and Captain Sorongon which revealed the
contrary.
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76*
Transportation*for*Atty.*Abano*by*Jason*Arteche*
Our ruling in Monarch may appear inconsistent with the exception of the limited liability doctrine, as
explicitly stated in the earlier part of the Monarch decision. An exception to the limited liability
doctrine is when the damage is due to the fault of the shipowner or to the concurrent negligence of the
shipowner and the captain. In which case, the shipowner shall be liable to the full-extent of the
damage. We thus find it necessary to clarify now the applicability here of the decision in Monarch.
Considering the evidence presented and the circumstances obtaining in this case, we find that
petitioner failed to discharge this burden. It initially attributed the sinking to the typhoon and relied on
the BMI findings that it was not at fault. However, both the trial and the appellate courts, in this case,
found that the sinking was not due to the typhoon but to its unseaworthiness. Evidence on record
showed that the weather was moderate when the vessel sank.
In contrast, the findings of the BMI are not deemed always binding on the courts. Besides,
exoneration of the vessels officers and crew by the BMI merely concerns their respective
administrative liabilities. It does not in any way operate to absolve the common carrier from its civil
liabilities arising from its failure to exercise extraordinary diligence, the determination of which
properly belongs to the courts.
Where the shipowner fails to overcome the presumption of negligence, the doctrine of limited liability
cannot be applied. Therefore, we agree with the appellate court in sustaining the trial courts ruling
that petitioner is liable for the total value of the lost cargo.
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Under a demise or bareboat charter on the other hand, the charterer mans the vessel with his own
people and becomes, in effect, the owner for the voyage or service stipulated, subject to liability for
damages caused by negligence.
If the charter is a contract of affreightment, which leaves the general owner in possession of the ship
as owner for the voyage, the rights and the responsibilities of ownership rest on the owner. The
charterer is free from liability to third persons in respect of the ship.
MT Vector is a common carrier
Charter parties fall into three main categories: (1) Demise or bareboat, (2) time charter, (3) voyage
charter. Does a charter party agreement turn the common carrier into a private one? We need to
answer this question in order to shed light on the responsibilities of the parties.
In this case, the charter party agreement did not convert the common carrier into a private carrier.
The parties entered into a voyage charter, which retains the character of the vessel as a common
carrier.
Is Caltex liable for damages under the Civil Code? We rule that it is not.
The nature of the obligation of Caltex demands ordinary diligence like any other shipper in shipping
his cargoes. A cursory reading of the records convinces us that Caltex had reasons to believe that MT
Vector could legally transport cargo that time of the year. Caltex and Vector Shipping Corporation
had been doing business since 1985, or for about two years before the tragic incident occurred in 1987.
Past services rendered showed no reason for Caltex to observe a higher degree of diligence.
Clearly, as a mere voyage charterer, Caltex had the right to presume that the ship was seaworthy as
even the Philippine Coast Guard itself was convinced of its seaworthiness. All things considered, we
find no legal basis to hold petitioner liable for damages.
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When the shipment arrived, CONSIGNEE discovered that the shipment sustained losses/shortage.
Provident paid losses. Formal claims was then filed with Trade & Transport and Macondray but the
same refused and failed to settle the same. Hence, this complaint.
Defendant MACONDRAY filed ANSWER, denying liability over the losses, having NO absolute
relation with defendant TRADE AND TRANSPORT, the alleged operator of the vessel who
transported the subject shipment; that accordingly, MACONDRAY is the local representative of the
SHIPPER; the charterer of M/V TRADE CARRIER and not party to this case; that it has no control
over the acts of the captain and crew of the Carrier and cannot be held responsible for any damage
arising from the fault or negligence of said captain and crew; that upon arrival at the port of Sangi,
Toledo City, Cebu, the M/V Trade Carrier discharged the full amount of shipment, as shown by the
draft survey with a total quantity of 5,033.59 metric tons discharged from the vessel and delivered to
the CONSIGNEE.
Issue
Whether or not petitioner was the ship agent.
Held
Was ship agent.
In the present case, we find no compelling reason to overturn the Court of Appeals in its categorical
finding that petitioner was the ship agent. Such factual finding was not in conflict with the trial court's
ruling, which had merely stated that petitioner was not the agent of Trade and Transport. Indeed,
although it is not an agent of Trade and Transport, petitioner can still be the ship agent of the vessel
M/V Trade Carrier.
Article 586 of the Code of Commerce states that a ship agent is "the person entrusted with
provisioning or representing the vessel in the port in which it may be found."
Hence, whether acting as agent of the owner of the vessel or as agent of the charterer, petitioner will
be considered as the ship agent and may be held liable as such, as long as the latter is the one that
provisions or represents the vessel.
The trial court found that petitioner "was appointed as local agent of the vessel, which duty includes
arrangement for the entrance and clearance of the vessel." Further, the CA found and the evidence
shows that petitioner represented the vessel. The latter prepared the Notice of Readiness, the
Statement of Facts, the Completion Notice, the Sailing Notice and Custom's Clearance. Petitioner's
employees were present at Sangi, Toledo City, one day before the arrival of the vessel, where they
stayed until it departed. They were also present during the actual discharging of the cargo. Moreover,
Mr. de la Cruz, the representative of petitioner, also prepared for the needs of the vessel, like money,
provision, water and fuel.
These acts all point to the conclusion that it was the entity that represented the vessel in the Port of
Manila and was the ship agent within the meaning and context of Article 586 of the Code of
Commerce.
As ship agent, it may be held civilly liable in certain instances. The Code of Commerce provides:
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"Article 586. The shipowner and the ship agent shall be civilly liable for the acts of the captain and for the
obligations contracted by the latter to repair, equip, and provision the vessel, provided the creditor proves that
the amount claimed was invested for the benefit of the same."
"Article 587. The ship agent shall also be civilly liable for the indemnities in favor of third persons which may
arise from the conduct of the captain in the care of the goods which he loaded on the vessel; but he may exempt
himself therefrom by abandoning the vessel with all her equipments and the freight it may have earned during
the voyage."
Petitioner does not dispute the liabilities of the ship agent for the loss/shortage of 476.140 metric tons
of standard-grade Muriate of Potash valued at P1,657,700.95. Hence, we find no reason to delve
further into the matter or to disturb the finding of the CA holding petitioner, as ship agent, liable to
respondent for the losses sustained by the subject shipment.
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However, the loss of the vessel was caused not only by the southwestern monsoon, but also by the
shifting of the logs in the hold. Such shifting could been due only to improper stowage. The vessel
felt the strain because the logs in the bodega shifted and there were already seawater that seeped
inside. Had the logs not shifted, the ship could have survived and reached at least the port of El
Nido.
Being clearly prone to shifting, the round logs should not have been stowed with nothing to hold them
securely in place. Each pile of logs should have been lashed together by cable wire, and the wire
fastened to the side of the hold. Considering the strong force of the wind and the roll of the waves, the
loose arrangement of the logs did not rule out the possibility of their shifting. By force of gravity,
those on top of the pile would naturally roll towards the bottom of the ship.
The evidence indicated that strong southwest monsoons were common occurrences during the month
of July. Thus, the officers and crew of M/V Central Bohol should have reasonably anticipated heavy
rains, strong winds and rough seas. They should then have taken extra precaution in stowing the logs
in the hold, in consonance with their duty of observing extraordinary diligence in safeguarding the
goods. But the carrier took a calculated risk in improperly securing the cargo. Having lost that risk, it
cannot now escape responsibility for the loss.
The doctrine of limited liability under Article 587 of the Code of Commerce is not applicable to the
present case. This rule does not apply to situations in which the loss or the injury is due to the
concurrent negligence of the shipowner and the captain. It has already been established that the
sinking of M/V Central Bohol had been caused by the fault or negligence of the ship captain and the
crew, as shown by the improper stowage of the cargo of logs. Closer supervision on the part of the
shipowner could have prevented this fatal miscalculation. As such, the shipowner was equally
negligent. It cannot escape liability by virtue of the limited liability rule.
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improbable that the Weather Bureau had not yet issued any typhoon bulletin at any time during the
day to the shipping companies. Maritima submitted no convincing evidence to show this omission.
Significantly, the appellate court found that the ship's captain through his action showed prior
knowledge of the typhoon. If the captain knew of the typhoon beforehand, it is inconceivable for
Maritima to be totally in the dark of 'Welming.' In allowing the ship to depart late from Manila despite
the typhoon advisories, Maritima displayed lack of foresight and minimum concern for the safety of
its passengers taking into account the surrounding circumstances of the case.
While We agree with the appellate court that the captain was negligent for overloading the ship, We,
however, rule that Maritima shares equally in his negligence. We find that while M/V Mindoro was
already cleared by the Bureau of Customs and the Coast Guard for departure at 2:00 p.m. the ship's
departure was, however, delayed for four hours. Maritima could not account for the delay because it
neither checked from the captain the reasons behind the delay nor sent its representative to inquire
into the cause of such delay. It was due to this interim that the appellate court noted that "(i)ndeed
there is a great probability that unmanifested cargo and passengers were loaded during the four (4)
hour interval." Perchance, a closer supervision could have prevented the overloading of the ship.
Maritima could have directed the ship's captain to immediately depart in view of the fact that the
typhoon had already attained surface winds of about 240 kilometers per hour. As the appellate court
stated, '(v)erily, if it were not for have reached (its) destination and this delay, the vessel could thereby
have avoided the effects of the storm."
Maritima presents evidence of the seaworthy condition of the ship prior to its departure to prove that
it exercised extraordinary diligence in this case. M/V Mindoro was drydocked for about a month.
Necessary repairs were made on the ship. Life saving equipment and navigational instruments were
installed.
While indeed it is true that all these things were done on the vessel, Maritima, however, could not
present evidence that it specifically installed a radar which could have allowed the vessel to navigate
safely for shelter during a storm. Consequently, the vessel was left at the mercy of ''Welming' in the
open sea because although it was already in the vicinity of the Aklan river, it was unable to enter the
mouth of Aklan River to get into New Washington, Aklan due to darkness and the Floripon
Lighthouse at the entrance of the Aklan River was not functioning or could not be seen at all
The foregoing clearly demonstrates that Maritima's lack of extraordinary diligence coupled with the
negligence of the captain as found by the appellate court were the proximate causes of the sinking of
M/V Mindoro.
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Even assuming that those conditions are squarely applicable to the case at bar, petitioner did not
comply with the same. It did not cancel the ticket nor did it refund the value of the tickets to private
respondents. Besides, it was not the vessel's sailing schedule that was involved. Private respondents'
complaint is directed not at the delayed departure the next day but at the by- passing of Catbalogan,
their destination. Had petitioner notified them previously, and offered to bring them to their
destination at its expense, or refunded the value of the tickets purchased, perhaps, this controversy
would not have arisen.
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The voyage to Catbalogan was "interrupted" by the captain upon instruction of management. The
"interruption" was not due to fortuitous event or for majeure nor to disability of the vessel. Having
been caused by the captain upon instruction of management, the passengers' right to indemnity is
evident. The owner of a vessel and the ship agent shall be civilly liable for the acts of the captain.
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Private respondent countered that in all matters not covered by the Civil Code, the rights and
obligations of the parties shall be governed by the Code of Commerce and by special laws as provided
for in Article 1766 of the Civil Code; that Article 806, 809 and 848 of the Code of Commerce should
be applied suppletorily as they provide for the extent of the common carriers' liability.
For cargoes transported to the Philippines as in the case at bar, the liability of the carrier is governed
primarily by the Civil Code and in all matters not regulated by said Code, the rights and obligations of
common carrier shall be governed by the Code of Commerce and by special laws.
But more importantly, the Court ruled that common carriers cannot limit their liability for injury or
loss of goods where such injury or loss was caused by its own negligence. Otherwise stated, the law
on averages under the Code of Commerce cannot be applied in determining liability where there is
negligence.
Under the foregoing principle and in line with the Civil Code's mandatory requirement of
extraordinary diligence on common carriers in the care of goods placed in their stead, it is but
reasonable to conclude that the issue of negligence must first be addressed before the proper
provisions of the Code of Commerce on the extent of liability may be applied.
The records show that upon delivery of the shipment in question of Mayleen's warehouse in Manila,
122 bales were found to be damaged/lost with straps cut or loose, calculated by the so-called
"percentage method" at 4,360 kilograms and amounting to P61,263.41. Instead of presenting proof of
the exercise of extraordinary diligence as required by law, National Marine Corporation (NMC) filed
its Motion to Dismiss hypothetically admitting the truth of the facts alleged in the complaint to the
effect that the loss or damage to the 122 bales was due to the negligence or fault of NMC. As ruled by
this Court, the filing of a motion to dismiss on the ground of lack of cause of action carries with it the
admission of the material facts pleaded in the complaint. Such being the case, it is evident that the
Code of Commerce provisions on averages cannot apply.
On the other hand, Article 1734 of the Civil Code provides that common carriers are responsible for
loss, destruction or deterioration of the goods, unless due to any of the causes enumerated therein. It is
obvious that the case at bar does not fall under any of the exceptions. Thus, American Home
Assurance Company is entitled to reimbursement of what it paid to Mayleen Paper, Inc. as insurer.
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In our jurisprudence, fire may not be considered a natural disaster or calamity since it almost always
arises from some act of man or by human means. It cannot be an act of God unless caused by
lightning or a natural disaster or casualty not attributable to human agency.
In the case at bar, it is not disputed that a small flame was detected on the acetylene cylinder and that
by reason thereof, the same exploded despite efforts to extinguish the fire. Neither is there any doubt
that the acetylene cylinder, obviously fully loaded, was stored in the accommodation area near the
engine room and not in a storage area considerably far, and in a safe distance, from the engine room.
Moreover, there was no showing, and none was alleged by the parties, that the fire was caused by a
natural disaster or calamity not attributable to human agency. On the contrary, there is strong
evidence indicating that the acetylene cylinder caught fire because of the fault and negligence of
respondent ESLI, its captain and its crew.
First, the acetylene cylinder which was fully loaded should not have been stored in the
accommodation area near the engine room where the heat generated therefrom could cause the
acetylene cylinder to explode by reason of spontaneous combustion. Respondent ESLI should have
easily foreseen that the acetylene cylinder, containing highly inflammable material was in real danger
of exploding because it was stored in close proximity to the engine room.
Second, respondent ESLI should have known that by storing the acetylene cylinder in the
accommodation area supposed to be reserved for passengers, it unnecessarily exposed its passengers
to grave danger and injury. Curious passengers, ignorant of the danger the tank might have on humans
and property, could have handled the same or could have lighted and smoked cigarettes while
repairing in the accommodation area.
Third, the fact that the acetylene cylinder was checked, tested and examined and subsequently
certified as having complied with the safety measures and standards by qualified experts before it was
loaded in the vessel only shows to a great extent that negligence was present in the handling of the
acetylene cylinder after it was loaded and while it was on board the ship. Indeed, had the respondent
and its agents not been negligent in storing the acetylene cylinder near the engine room, then the same
would not have leaked and exploded during the voyage.
Verily, there is no merit in the finding of the trial court to which respondent court erroneously agreed
that the fire was not the fault or negligence of respondent but a natural disaster or calamity. The
records are simply wanting in this regard.
On the issue of whether or not respondent court committed an error in concluding that the expenses
incurred in saving the cargo are considered general average, we rule in the affirmative. As a rule,
general or gross averages include all damages and expenses which are deliberately caused in order to
save the vessel, its cargo, or both at the same time, from a real and known risk. While the instant case
may technically fall within the purview of the said provision, the formalities prescribed under Articles
813 and 814 of the Code of Commerce in order to incur the expenses and cause the damage
corresponding to gross average were not complied with. Consequently, respondent ESLI's claim for
contribution from the consignees of the cargo at the time of the occurrence of the average turns to
naught.
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