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2 KIDS:
1. CARRIAGE OF PASSEGERS
Parties: common carrier & passenger (carried
gratuitously or not)
Perfection:
> contract to carry goods consensual
> contract of carriage - act of delivery of goods
(goods are unconditionally placed in the
possession and control of the carrier and upon
their receipt by the carrier for transportation)
Perfection:
> contract to carry (agreement to carry the
passenger at some future date) consensual
contract and perfected by mere consent
* AIRCRAFT perfected even without issuance
of ticket as long as there was already meeting of
minds with respect to the subject matter and
consideration
> contract of carriage
real contract; not until the facilities of the carrier
are actually used can the carrier be said to have
assumed the obligation of the carrier; perfected by
actual use.
* AIRCRAFT perfected if it was established that
the passenger had checked in at the departure
counter, passed through customs and immigration,
boarded the shuttle bus and proceeded to the ramp
of the aircraft and baggage already loaded to the
aircraft.
* Public Utility Bus or Jeepneys once it stops it
is in effect making a continuous offer to riders;
perfected when passenger is already attempting to
board the vehicle
* TRAINS perfected when a person:
a. purchased a ticket/ possess sufficient
fare with which to pay for his passage
b. presented himself at the proper place
and in a proper manner to be transported
CARRIER:
Common carriers (CC) (1732)
persons,
corporations,
firms
or
associations engaged in the business of
carrying or transporting passengers or
goods or both, by land, water, or air, for
compensation, offering their services to
the public. (NOT the means of
transportation)
one that holds itself out as ready to engage
in the transportation of goods for hire as a
public employment and not as a casual
occupation.
Tests for determining WON a party is a common
carrier of goods:
1. He must be engaged in the business of
carrying goods for others as a public
employment, and must hold himself out as
ready to engage in the transportation of
goods for persons generally as a business
and not as a casual occupation.
2. He must undertake to carry good of the
kind to which his business is confined.
3. he must undertake to carry by the method
by which his business is conducted and
over his established roads
4. transportation must be for hire.
Characteristics of Common carriers (CC):
no distinction between one whose
principal business is the transportation of
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(1) Abandonment
In case of delay through the fault of the carrier, the
consignee may refuse to accept the goods or may
leave the goods in the hands of the carrier. It must
be communicated to the carrier in writing. This
right must be exercised between the time of delay
and before the arrival of the goods at its
destination. The carrier must pay the full value of
the goods as if they had been lost or mislaid.
d. IMPROPER PACKING
Character of the goods and defects in the
packaging or in the containers are defenses
available to the common carrier. Similarly, the
Carriage of Good b Sea Act provides that carrier
shall not liable for: (1) wastage in bulk or weight
or any damages arising form the inherent defect,
quality or vice of goods; (2) insufficiency of
packing; (3) insufficiency or inadequacy of the
marks, or (4) latent defects no discoverable by due
diligence.
However, NCC likewise provides:
Art. 1742. Even if the loss, destruction, or
deterioration of the goods should be caused by
the character of the goods, or the faulty nature
of the packing or the containers, the common
carrier must exercise due diligence to forestall
or lessen the loss.
Thus, if the carrier accepted the goods knowing
the fact of improper packing or even if the
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CARRIAGE
OF
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common
carrier
(-ote:
Typically
fare/freight); and
3. Reasonable, just and contrary to public
policy.
B. PASSENGERS
There can be no stipulation lessening the utmost
diligence that is owed to passengers.
Art. 1757. The responsibility of a common
carrier for the safety of passengers as
required in Arts. 1733 and 1755 cannot be
dispensed with or lessened by stipulation,
by the posting of notices, by statements on
tickets, or otherwise. (-ote: Absolute;
extraordinary at all times.)
Gratuitous passenger A stipulation limiting the
common carriers liability for negligence is valid,
but not for willful acts of gross negligence. The
reduction of fare does not justify any limitation.
IV. EXTRAORDINARY
CARRIAGE BY SEA
A. SEAWORTHINESS
DILIGENCE
IN
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DILIGENCE
IN
A. CONDITION OF VEHICLE
Common carriers that offer transportation by land
are similarly required to make sure that the
vehicles that they are using are in good order and
condition.
Rule on Mechanical Defects If the carriers will
replace certain parts of the motor vehicle, they are
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4.
Through
Bill of Lading
5. On Board
Bill
6.
Received
for Shipment
Bill
7. Custody Bill
of Lading
8. Port Bill of
Lading
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RECOVERY
OF
DAMAGES
FROM
CARRIER FOR CARRIAGE OF GOODS:
1. Inter-island - if goods arrived in damaged
condition (Art. 366):
a. If damage is apparent, the shipper must file a
claim immediately (it may be oral or written);
b. If damage is not apparent, he should file a claim
within 24 hours from delivery.
The filing of claim under either (1) or (2) is a
condition precedent for recovery.
If the claim is filed, but the carrier refuses to
pay: enforce carriers liability in court by filing a
case:
a. within 6 year, if no bill of lading has been
issued; or
b. within 10 years, if a bill of lading has been
issued.
2. Overseas where goods arrived in a damaged
condition from a foreign port to a Philippine port
of entry: (COGSA)
a. upon discharge of goods, if the damage is
apparent, claim should be filled immediately;
b. if damage is not apparent, claim should be filled
within 3 days from delivery.
Filing of claim is not a condition precedent, but an
action must be filed against the carrier within a
period of 1 year from discharge; if there is no
delivery, the one-year period starts to run from the
day the vessel left port (in case of undelivered or
lost cargo), or from delivery to the arrastre (in
case of damaged cargo).
Where there was delivery to the wrong person, the
prescriptive period is 10 years because there is a
violation of contract, and the carriage of goods by
sea act does not apply to misdelivery. (Ang v.
American SS Agencies (19 SCRA 631)
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A. -egotiability
- It is negotiable if it is deliverable to the bearer,
or to the order of any person named in such
document. (Art. 1507, Civil Code)
a) Effect of Stamp or -otation -on--egotiable
the document remains to be negotiable
even if the words not-negotiable or
non-negotiable are placed thereon. - Art.
1510 (Civil Code)
B. How -egotiated
a) Bearer document (Art. 1508 and 1511)
- may be negotiated be delivery
b) Order document (Sec. 38, NIL and Art. 1509,
NCC)
- can only be negotiated through the indorsement
of the specified person so named.
- such indorsement may be in blank, to bearer or to
a specified person.
C. Effects of -egotiation
- has the effect of manual delivery so as to
constitute the transferee the owner of the goods
- results in the transfer of ownership because
transfer of document likewise transfers control
over the goods
- refer to Art. 1513
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b) Extinctive Prescription
- six (6) years if there is no written contract
- ten (10) years if there is written contract
a) Prescription
Action for damages must be filed within a
period of one (1) year from discharge of the
goods.
The period is not suspended by an extrajudicial demand.
Does not apply to conversion or
misdelivery.
The one (1) year period refers to loss of
goods and not to misdelivery.
-
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B. Kinds of Damages
a) Actual or Compensatory Damages
only for the pecuniary loss suffered by him as he
has duly proved
2 Kinds:
1. the loss of what a person already possesses
(dao emrgente);
2. the failure to receive as a benefit that would
have pertained to him (lucro cesante).
2) Attorneys fees
- refer to Art. 2208 of the Civil Code
- attorneys fees may be awarded in an action for
breach of contract of carriage under par.
1,2,4,5,10 and 11 of Art. 2208.
3) Interests
12% per annum if it constitutes a loan or
forbearance of money
6% per annum if it does not constitute
loan or forbearance of money
12% - for final judgment
b) Moral Damages
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c) ominal Damages
- Refer to Art. 2221-2223 (Civil Code)
- the assessment of nominal damages is left to the
discretion of the court
- the award of nominal damages is also justified in
the absence of competent proof of the specific
amounts of actual damages suffered.
- cannot co-exist with actual damages
d) Temperate or Moderate Damages
- Art. 2224 provides:
may be recovered when the court finds that
some pecuniary loss has been suffered but its
amount can not, from the nature of the case,
be provided with certainty.
- cannot co-exist with actual damages
e) Liquidated Damages
those agreed by the parties to a contract, to
be paid in case of breach thereof.
Ordinarily, the court cannot change the
amount of liquidated damages agreed upon
by the parties. However, Art. 2227 of the
Civil Code provides that liquidated damages,
whether intended as an indemnity or a
penalty, shall be equitable reduced if they
were iniquitous or unconscionable.
f) Exemplary or Corrective Damages
Requisites for the award of exemplary damages:
1. They may be imposed by way of example in
addition to compensatory damages, and only after
the claimants right to them has been established.
2. They cannot be recovered as a matter of right,
their determination depending upon the amount of
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General Concepts
The real and hypothecary nature of
maritime law simply means that the
liability of the carrier in connection with
losses related to maritime contracts is
confined to the vessel
Articles 837, 587, and 590 cover only: (1)
liability to third persons, (2) acts of the
captain, (3) collisions
b. Insurance claims
- Total loss of the vessel did not
extinguish the liability of the carriers
insurer; despite the loss of the vessel,
its insurance answers for the damages
that a ship owner or agent, may be
held liable for by reason of the death
of its passengers
c. Workmens compensation
- Even if the vessel was lost, the
liability thereunder is still enforceable
against the employer or ship owner
Abandonment
- Vessel, its appurtenances and the
freightage
- An indispensable requirement before the
ship owner or ship agent can enjoy the
benefits of the LLR
- If the carrier does not want to abandon the
vessel, then he is still liable even beyond
the value of the vessel
Procedure for Enforcement
- In sinking of a vessel, the claimants or
creditors are limited in their recovery to
the remaining value of accessible assets
- In case of a lost vessel, there are the
insurance
proceeds
and
pending
freightage for the particular voyage
- No claimant can be given precedence over
the others by the simple expedience of
having filed or completed its action
earlier than the rest
Protests
- The written statement by the master of a
vessel or any authorized officer, attested
by proper officer or a notary, to the effect
that damages has been suffered by the
ship
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OWNERSHIP
Acquisition
- Vessels may be acquired or transferred by
any means recognized by law; may be
sold, donated and may even be acquired
through prescription
a. Prescription
- Acquisition of a vessel must appear in a
written instrument, which shall not
produce any effect with respect to third
persons (Art. 573, Code of Commerce)
- Ownership shall be acquired by
possession in good faith, continued for
three (3) years, with a just title duly
recorded
- In the absence of the aforementioned
requisites, continuous possession for ten
(10) years shall be necessary in order to
acquire ownership.
- A captain may not acquire by prescription
the vessel which he is in command
- Co-owners shall have the right of
repurchase and redemption in sales made
to strangers, but only within nine (9) days
following the inscription of the sale in the
registry, and by depositing the price at the
same time
b. Sale
- Includes the rigging, masts, stores and
engine of a steamer appurtenant thereto,
which at the time belongs to the vendor
- Arms, munitions of war, provisions and
fuel shall not be considered as included in
the sale
- Obligation of the vendor to deliver to the
purchaser a certified copy of the record
sheet of the vessel in the registry up to the
date of the sale
- If alienation of the vessel should be made
while it is on a voyage, the freightage
which it earns from the time it receives its
last cargo shall pertain entirely to the
purchaser, and the payment of the crew
and other persons shall be for his account
- If the sale is made after the vessel has
arrived at the port of its destination, the
freightage shall pertain to the vendor, and
the payment of the crew and other
persons shall be for his account, unless
contrary is stipulated
REGISTRATION
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SHIPS MANIFEST
- Vessels are required to carry manifests in
coastwise trade
- Tariff and Customs Code: manifests shall
be required for cargo and passengers
transported from one place or port in the
Philippines to another only when one or
both of such places is a port of entry
Manifest
- a declaration of the entire cargo
- object is to furnish customs officers with a
list to check against, to inform the
revenue officers what goods are being
brought into a port of the country on a
vessel
- hence, the requirement that a vessel must
carry a manifest is not complied with
even if a bill of lading can be presented.
- Bill of lading is just a declaration of a
specific cargo, rather than the entire cargo
- It is issued as a matter of convenience by
virtue of a contract
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Part Owners
- a partnership shall be presumed as
established by the co-owners
- if not more than two, decision of the
member having controlling interest
- more than two, proportionately
- a vessel may not be detained, attached or
levied upon in execution in its entirety for
the private debts of a part owner
- the co-owners of a vessel shall be civilly
liable in the proportion of their interest in
the common fund, for the results of the
acts of the captain
- each co-owner may exempt himself from
liability by abandonment
- all part owners shall be liable, in
proportion to their respective ownership,
for the expenses for repairing the vessel
- the sale of the vessel must be made at
public auction, unless the co-owners
stipulate
SHIP AGENT
- whether the owner or a manager for an
owner or for an association of co-owners,
must have the capacity to trade and must
be recorded in the merchants registry of
the province
- shall represent the ownership of the vessel
- may, in his own name, and in such
capacity, take judicial and extrajudicial
steps in matters relating to commerce
A. Powers
- May discharge the duties of the captain of
the
vessel,
subject
to
Art.
609(qualifications)
- Shall designate and come to terms with
the captain
- shall contract in the name of the owners,
who shall be bound in all that refer to
repairs, details of equipment, armament,
provisions of food and fuel, and freight of
the vessel, and in general, in all that
relates to the requirements of navigation
B. Limitation on Power
- May not order a new voyage, or make
contracts for a new charter, or insure the
vessel, without the authorization of its
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C. Duty to Account
- If managing for an association, he shall
render an account of the results of each
voyage of the vessel
D. Reimbursement and Liabilities
- Co-owners shall pay the expenses in
proportion to their interest
- In order to enforce the payment, the
managing agent shall be entitled to an
executor action (accion ejecutiva)
- Shall indemnify the captain for all the
expenses he may have incurred with
funds of his own or of others, for the
benefit of the vessel
E. Discharge of Captain and Crew
- Subject to the provisions of the Labor
Code and rules promulgated by POEA
- Before the vessel sets out to sea, the ship
agent may, at his discretion, discharge the
captain and members of the crew whose
contracts are not for a definite period or
voyage
- In case of voluntary sale of the vessel, all
contracts between the ship agent and the
captain shall terminate, reserving to the
latter his right to the indemnity which
may pertain to him
CAPTAINS AND MASTERS OF VESSELS
- The name of captain or master is given,
according to the kind of vessel, to the
person in charge of it
- The first denomination is applied to those
who govern vessels that navigate the high
seas or ships of large dimensions and
importance, although they be engaged in
the coastwise trade
- Masters are those who command smaller
ships engaged exclusively in the coast
wise trade
- For the purpose of maritime commerce,
captain and master have the same
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PILOTAGE
Pilot a person duly qualified and licensed to
conduct a vessel into or out of ports, or in certain
waters
- A person taken on board at a particular
place for the purpose of conducting a ship
through a river, road, channel, or from
port
It includes:
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CHAPTER 9
CHARTER PARTIES
I.
-
II.
EFFECT
OF
CHARTER
ON
CHARACTER OF VESSELS
- Character of the common carrier as such is
not affected by the charter party of the
same is a contract of affreightment
- It is only when the charter includes both
the vessel and its crew, as in a bareboat or
demise that a common carrier becomes
private
IV.
PERSONS
WHO
MAY
MAKE
CHARTER
The owners of the vessel who have legal
control and possession of the vessel may
validly enter into charter parties with a
charterer
A third person called a broker may,
however, intervene in the execution of the
charter between the principals
Charterer may sub-charter the entire
vessel to a third person but only in the
event that there is no prohibition in the
original charter regarding any sub-charter
A sub-charter, when entered into, is an
independent contract by itself involving
only the charterer and the sub-charterer
and therefore does not give rise to any
contractual relation between the general
owner and the sub-charterer.
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V.
VII.
FREIGHT
Parties may fix the manner or form in
which the charter price or money shall be
satisfied
Freight shall accrue according to the
conditions stipulated in the contract
If there is no stipulation, the rules are the
following:
1. The freight shall begin to run from
the day of loading on the vessel
2. In charters with a fixed period, the
freight shall begin upon that very
day
3. If the freight is charged according
to weight, the payment thereof
shall be made according to the
gross weight, including the
weight of the containers
Where the goods were jettisoned for the
common safety, freightage shall not
accrue thereon, although the same will be
regarded as a general average
If goods were lost on account of
shipwreck or stranding, or due to seizure
by pirates or enemies, no freight will
accrue thereby
If the freight should have been paid in
advance, then the same should be
returned unless there is agreement to the
contrary
Failure of the captain or master to carry
the goods in his ship or send them to the
point of destination results in the
abandonment upon any claim for freight
thereon, except when it has been made
payable in advance
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B. Charterer
1. The charterer shall have the right to
sub-charter the vessel to a third
person only if he is so authorized by
the shipowner; otherwise, he shall be
liable therefor
2. A charterer who loads goods different
from that contracted upon, without
the knowledge of the shipowner or
captain, and which results to damage
due to confiscation, embargo,
detention, and other causes, shall be
liable to indemnify the parties injured
thereby
3. Should illicit cargo be shipped by the
charterer in the chartered vessel with
the knowledge of the shipowner or of
the captain, said charterer shall be
joinly liable with the shipowner for
the damages to the shippers
4. The charterers and shippers may not,
for the payment of freight and other
expenses incurred, abandon the goods
damaged due to inherent defects or by
reason of fortuitous event
A. Shipowner or Captain
1. The shipowner is bound to observe a
margin greater than two percent
between that represented and her
actual capacity which is not allowable
2. Any loss incurred by a shipper whose
cargo is refused on account of the
receipts by the shipowner of a greater
amount of cargo belonging to other
persons shall be for account of the
shipowner in the form of indemnity;
freight may be reduced instead of
rescission
3. If there should be several charter
parties and not all could be
accommodated, preference shall be
given to the persons who is first in
loading his cargo, and the others shall
have preference in the order of the
dates of their charter; in the absence
of priority, in proportion to the
amounts of weight or space that they
may have contracted
4. The shipowner may effect a
substitution with respect to the vessel
which had been initially chartered
with that of another
IX.
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II.
Bottomry or
Respondentia
The rate of interest is not
subject to the Usury Law
on account of the
extraordinary
risks
FROM
SIMPLE
Simple loan
The rate of interest must
not exceed the ceiling
fixed by the Usury Law
involved
There must necessarily
be marine risk, the
existence of which must
be duly established
The loan must be
executed in accordance
with form and manner
required in the Code of
Commerce
Must be recorded in the
registry of vessels in
order to bind third
persons
Preference is extended to
the last lender if there be
several lenders, on the
theory that were it not for
the last lender, then the
prior lenders would not
have benefited from the
preservation of the
No such registration is
required
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CHAPTER 11
AVERAGES
I.
-
II.
AVERAGES IN GENERAL
The following shall be considered
averages:
1. All extraordinary or accidental
expenses which may be incurred
during the voyage in order to
preserve the vessel, the cargo, or
both.
2. Any damages or deterioration
which the vessel may suffer from
the time it puts to sea from the
port of departure until it casts
anchor in the port of destination,
and those suffered by the
merchandise from the time they
are loaded in the port of
shipment until they are unloaded
in the port of their consignment.
(Art. 806, Code of Commerce)
Petty and ordinary expenses incident to
navigation shall be considered as ordinary
expenses to be defrayed by the ship
owner, unless there is express agreement
to the contratry
Classified into:
1. General or gross average
2. Simple or particular average
SIMPLE AVERAGE
A. Definition
- shall include all the expenses
damages caused to the vessel or to
cargo which have not inured to
common benefit and profit of all
persons interested in the vessel and
cargo
and
her
the
the
her
B. By Whom Borne
- the owner of the goods that suffered the
damage bears the loss since it does not
inure to the common benefit
- res perit domino
- if the vessel or goods are hypothecated
by a loan on bottomry or respondentia, the
III.
GENERAL AVERAGE
A. Definition and Requisites
- shall include all the damages and
expenses which are deliberately caused in
order to save the vessel, its cargo or both
at the same time, from real and known risk
- Requisites:
1) there must be a common danger
2) that for common safety part of the
vessel or of the cargo or both is
sacrificed deliberately
3) that from the expenses or damages
caused follows the successful
saving of the vessel and cargo
4) that the expenses or damages
should have been incurred or
inflicted after taking proper legal
steps and authority
Common Danger
- both the ship and the cargo, after has
been loaded, are subject to the same
danger, whether during the voyage, or in
the port of loading or unloading
- danger arises from the accidents of the
sea, dispositions of the authority, or faults
of men
- circumstances should produce the peril
ascertained and imminent or may
rationally be said to be certain and
imminent
Deliberate Sacrifice
- there must be voluntary sacrifice of a
part for the benefit of the whole in order to
justify general average contribution (ex.
voluntary jettison)
- it cannot involve a damage which
resulted beyond the control of the captain
and crew or without any intention on their
part
- normally, the sacrifice is made through
the jettison of the cargo
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V.
YORK-ANTWERP RULES
Refer to page 624
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OF
ii.
40
i)
j)
41
42
Government v. Phil.
Fernandez Hermanos
Steamship
Co.
&
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44
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46
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GOODS/CARGOES:
1. It shall be specially bound for the
payment of the expenses of the
respective salvage. The amount shall
be paid by the owners before the
OBLIGATIONS/DUTIES
OF
THE
CAPTAIN:
1. In paragraph [A (ii)] above, the
captain of the wrecked vessel shall
enter a protest against any captain
who refuses to receive what may
correspond to the latter without
sufficient cause, for the losses and
damages resulting therefrom.
The protest shall be presented before 2
sea officials, ratifying the same within
24 hours after arrival at the first port,
and including it in the proceedings the
former must institute in accordance
with Art. 612.
The captain, with the concurrence of
the officers of his vessel, shall also be
the one to designate which cargo has
the highest value and the lowest
volume (Art. 843, CC).
2. A captain who may have taken on
board the goods saved from the wreck
shall continue his course to the port of
destination, and on arrival shall
deposit the same, with judicial
intervention, at the disposal of the
legitimate owners.
In case he changes his course, if he
can unload them at the port of which
they were consigned, the captain may
make said port if the shippers or
supercargoes present and the officers
and passengers of the vessel consent
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