TORTS AND

DAMAGES
(CONFLICTS OF LAW)

BY:

GROUP III
ARAO, Michael Thomas S.
BEHIGA, Sarah Jane F.
DATUDACULA, Boy Omar G.
DIANAL, Reezah M.
MAGALLANES, Krystel Hypa C.
SENO, Stephanie Hariette U.
TAHANLANGIT, Maxi Dominick D.
VILLARUBIA, Freila May B. Villarubia

I.

INTRODUCTION

The law of torts and the law of conflict of laws, intersect whenever the
particular tort or the parties have significant contacts with more than one
state or country. These torts would include cases in which the tortious
conduct occurs in one state and the resulting injury in another (cross-border
torts), or in which the conduct and the injury both occur in one state but
either the tortfeasor or the victim, or both, are domiciled in, or have another
significant connection with, another state.
In conflict of laws, the choice of law rules for tort is used to select the
lex causae by which to determine the nature and scope of judicial remedy to
claim damages for loss or damage suffered. Because of territorial
sovereignty, the forum courts usually claim their right to apply their laws to
determine whether any lawsuit initiated in their jurisdiction allowed a
remedy. However, it is the commission of a tort that vest a right of action on
the claimant thus it is also argued that it is the law of the place where the
right is created that will determine the extent of remedy flowing from it. The
principle of lex loci delicti as the first point of reference serves a compromise
for these conflicting concepts.
The enforceability of any judgment is perhaps one of the most
important considerations in selecting the choice of law since it would be
unfair to the parties and a waste of time for the courts to hear a case if it is
not going to be enforceable. Thus, while the principle of lex loci delicti
generally governs the liability and damages for torts, there are instances
wherein such principle does not apply such as when it is contrary to public
policy of the forum state wherein the principle of lex fori applies.
Knowing the conflict rules on torts is essential for Filipinos, since labor
migration has been a phenomenon among Filipinos. Also, with the Philippines
being tagged as the Ship Manning Capital, the demand for Filipino seafarers
continues to grow and more Filipino seafarers are being deployed to different
foreign countries by different foreign employers everyday. Since budget
airlines were introduced to the Filipinos in 2005, the number of Filipino tourist
traveling abroad, have been growing by leaps and bounds. Low fares to
different international destinations enabled Filipinos to easily travel abroad.
In the same way, the number of foreign tourists coming into the Philippines
has significantly increased. Because of these factors, the conflict rules on
torts plays a very important part for Filipinos to be able to seek judicial
remedy for loss, damages or injury suffered within the Philippines and
abroad.
In discussing conflict of laws in relation to torts and damages, this
paper covers essentially the concept of tort in general including its historical
development and modern theories; and the point of contact which is the
place of commission of torts and its characterization. Philippine conflict rules
on torts are discussed in length, and where these rules wont apply
particularly in special cases, then conflict rules used in these instances are
elaborated. Furthermore, pertaining to torts rendered outside the forum
known as foreign torts, deliberation as to its enforcement in the Philippines is
also given emphasis. Lastly, this paper includes particular tort problems
which pointed out the conflict of law issue as well as the proposed choice of
law.

A.

CONCEPT AND PURPOSES OF TORT LIABILITY

In general, civil liability of persons may arise from any of the following
sourcescontracts, crimes or torts.
The word tort is taken directly from the French and is derivation from
of the Latin word torquere meaning to twist. However, it has no definite
definition and its concept is quite different in each country.
In common law, tort is an unlawful violation of private right, created by
contract, and which give rise to an action for damages. It is an act or
omission producing an injury to another, without any previous existing lawful
relation of which the said act or omission may be used to be a natural
outgrowth or incident (Robles vs Castillo, 61 O.G. 1220, 5 C.A.R.)
Furthermore, the term quasi-delict to cover cases where, although there
was no intention nor fault, liability was imposed on grounds of expediency
(Paton, Jurisprudence).
In many civil law countries, the term delict is usually confined to
intentional injuries, it is equated with a wrong or crime whose punishment
was subject to the laws of the place where it was committed. Hence, in
most European codes, including that of Spain, delict is confined to intentional
injury, quasi-delict refers to injury caused by negligence.
In Anglo-American, however, there is no such distinction. The term
tort covers both (1) intentional and negligent injury; and (2) strict liability
serves to distribute losses caused unavoidably by the complexities of life in a
modern society (Salonga).
In Philippine setting, how is tort defined? Although its foundation is
found mainly in the civil law concept of quasi-delict, Philippine law on torts as
may be gleaned from the decisions of our Supreme Court, represents the
blending of civil law and Anglo-American concepts. The key provision is
embodied in Article 2176 of the Civil Code which states:
Article 2176. Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the
parties is called a quasi-delict
Liability under Article 2176 arises from either fault or negligence, that
is, either by an act or omission. Fault requires the execution of an act which
causes damage to another, while negligence consists in the omission to do
acts which also results in damage to another. Hence, fault referred herein
gives rise to an obligation between persons not bound by a contractual
obligation known as culpa aquiliana. Where there is intent to cause damage
to another, the act or omission becomes a crime (dolo) and civil liability will
be governed by the Revised Penal Code. On the other hand, if fault is
connected with the performance of contract, then is it known as culpa
contractual.
A.1 Purposes of Tort Law
The major purposes of tort law include the following: (1) to provide a
peaceful means for adjusting the rights of the parties who might otherwise

take the law into their hands; (2) deter wrongful conduct; (3) to encourage
socially responsible behavior; and (4) to restore injured parties to their
original condition, insofar as the law can do this, by compensating them for
their injury (Prosser, Wade and Schwartz, 1988). Hence, every tort rule has a
two-fold purpose: to deter other wrongdoers, and to compensate the injured
person. In one case, the Supreme Court observed that the governing law
(Article 2176 of the Civil Code) seeks to reduce the risks and burden of living
in the society and to allocate to them among the members of society
(Phoenix Construction, Inc. v. Intermediate Appellate Court, 148 SCRA 353).
A.2 Kinds of Tort Liabilities
According to Aquino (2013), legal or civil wrong as contemplated by
the definition of tort is not equivalent of a moral wrong. Tort Liability includes
liability for legal wrongs encompassing three types of conduct, namely:
intentional torts, negligence and strict liability.
Intentional torts include conduct where the actor desires to cause the
consequences of his act or believe the consequences are substantially
certain to result from it. Torts of this kind include assault, battery, false
imprisonment, defamation, invasion of privacy and interference of property.
Negligence, on the other hand, involves voluntary acts or omissions
that result injury to others, without intending to cause the same. The actor
fails to exercise due care in performing such acts or omissions.
There is strict liability in tort where the person is made liable
independent of fault or negligence upon submission of proof of certain facts.
When strict liability is imposed, the conduct is generally not wrongful in
itself but the wrong consists in causing harm by engaging in certain types of
risky activities. Article 2187 of the New Civil Code and Article 100 of the
Consumer Act are examples of provisions imposing strict liability.
A.3 Requisites of Quasi-Delict (Tort)
The requisites of quasi-delict both under the Spanish Civil Code and
New Civil Code, as well as in the United States at the start of the American
colonial regime in this country, are enumerated as follows:
1) There must be an act or omission constituting fault or negligence;
2) Damage caused by the said act or omission; and
3) Causal relation between the damage and the act or omission (Taylor
v. Manila Electric Company, 16 Phil 8)
According to Aquino (2013), it should be noted, however, that the
Supreme Court added a fourth requisite in some cases the absence of
contractual relation between the plaintiff and the defendant. Although the
fourth requirement appears to be consistent with the language of Article
2176 of the Civil Code, it is no longer cited in majority of cases because it is
now well-settled that an action based on quasi-delict can be maintained even
if there is an existing contractual relation between the parties.
The approach in American Express International v. Cordero (GR No.
138550, 2005) is to treat a case when the tort breaches the contract as an
exception. The Supreme Court explained that in order that an obligation
based on quasi-delict may arise, there must be no pre-existing contractual
relation between the parties. But there are exceptions. There may be an
action for quasi-delict notwithstanding that there is a subsisting contract
between the parties. A liability for tort may arise even under a contract,
where tort is that which breaches the contract. Stated differently, when an

act which constitutes a breach of contract would have itself constituted the
source of a quasi-delictual liability, the contract can be said to have been
breached by tort, thereby allowing the rules on tort to apply.
B.

HISTORICAL DEVELOPMENT

B.1 Obligatio Theory

According to Salonga, in the United States, tort law was apparently
considered a branch of the law of remedies and therefore, not a proper
subject of Conflict of Laws. Story, in his first edition of Conflict of Laws, did
not even mention torts; in the fourth and fifth editions, foreign tort laws were
apparently considered penal and hence not applicable in this forum. From
the footnote of Redfields eight edition of Storys work, inspired by the
obligation theory and based on the concept of vested rights, the original
Restatement laid down rule that tort is to be subject to the law of the place
of wrong. The obligation theory received its most authoritative recognition
in the United State when in 1904 Mr. Justice Holmes delivered the Supreme
Courts opinion in Slater v. Mexican National Railway Co. (194 US 120):
The theory of the foreign suit is that, although the act
complained of was subject to no law having force in the forum, it
give rise to an obligation, an obligatio, which like other
obligations, follows the person and may be enforced wherever
the person may be found. But as the only source of this
obligation is the law of the place of the act, it follows that the law
determines not merely the existence of the obligation but
equally determines its extent.
B.2 English Rule
In England, torts did not become an independent subject of Private
International Law until the middle of the nineteenth century. In 1870, Justice
Willes delivered a famous passage in the leading case of Philips v. Eyre, to
wit:
As a general rule, in order to found a suit in England for a
wrong alleged to have been committed abroad, two conditions
must be fulfilled. First, the wrong must be of such a character
that it would have been actionable if committed in England
Second, the act must not have been justifiable by the law of the
place where it was done.
These words have been taken by the later generations to mean in
every action brought in England upon a foreign tort, the plaintiff must prove
that the defendant offended the law both of the locus delicti and of England
(Salonga).
B.3 Lex Loci Commissi
According to Salonga, writers and jurists in Europe, finding the
obligation theory and the vested rights doctrine unsatisfactory, sought to
explain the principle of law of the place of wrong, the lex loci commissi, on
two grounds of policy. First, a person owes obedience to the law of the
country in which he is actually present. Hence, it is that law alone under
which he is living at the time of the act complained of which can claim to
determine the legality or illegality of his acts, to law to whose standards his
behavior and conduct must conform. At the decisive moment of commission
of the acts, both actor and victims, move in social surroundings in which they
may appropriate their risks and potential liabilities. Second this is the
most recent consideration the State where the injury occurs has the
predominant interest to protect the injured private interests and to

determine the legal effects of the injury. As stated by Prof. Rabel: The
primary object of the law of torts is to regulate the social order and prevent
its infringement; the secondary concern is to compensate the victims of
violations of this order. The State cannot fulfill this duty without including
foreigners in its commands.
Up to the 1960s, the prevailing rule in most legal systems, particularly
in Continental Europe and the United States, had been that the lex loci
delicti commissi, the law of the place of wrong, governs the nature and
extent of tort liability. This shall be discussed in length in the next chapter.
C.

MODERN THEORIES ON TORT LIABILITY

C.1 The German Rule of Elective Concurrence

The civil rule that tort liability should be governed by the law of the
place where the act executes the act suffered an early setback in the hands
of the German Reichsgericht. The German Supreme Court ruled that a tort is
committed in both the place where the actor engages in his conduct and in
the place where the effects of his conduct occur. The injured person may
choose to sue under one law or the other, he can elect the law most
advantageous to his demand, but he is not permitted to cumulate the
benefits flowing from more than one law. Under this approach, a place of
tort is assumed to be wherever an essential part of the tort has been
committed. This view has been followed by the Swiss Federal Tribunal and,
in case of unfair competition, by the Italian Supreme Court (Salonga).
C.2 The State of the most significant relationship Rule; the
Second American Restatement of 1969
The original Restatement maintained that, except in a few cases, all
substantive questions relative to the existence of a tort claim are governed
by the law of the place of wrong, the lex loci delicti commissi, which was
equated with the state where the last event necessary to make an actor
liable for an alleged tort take place. The state of the last event is the State
where the injury occurred. This rule, derived from the vested rights doctrine,
called for the reinforcement everywhere of the tort right that had been
created in the place of injury. But the Second Restatement of 1969 rejected
the vested rights approach and the rigid place of injury rule found in the
original Restatement. Under Section 145, the rights and liabilities of the
parties with respect to an issue in tort are determined by the local law of
the state which, with respect to the particular issue, has the most significant
relationship to the occurrence and the parties. (Salonga)
In determining the State which has the most significant relationship,
the following contacts are to be taken into account and evaluated according
to their relative importance with respect to the particular issue: (a) the place
where the injury occurred; (b) the place where the conduct causing the injury
occurred; (c) the domicile, residence, nationality, place of incorporation and
place of business of the parties, and (d) the place where the relationship, if
any, between the parties is centered. (supra)
The Second Restatement lays down separate rules for different torts
and for different issues in tort; the identity of the State of the most
significant relationship depends upon the nature of the tort and upon the
particular issue. Thus, the place of injury is of particular importance in cases
of personal injuries to tangible things, in false imprisonment, malicious
persecution, and abuse of process. On the other hand, the place of injury is
less significant in cases of fraudulent misrepresentation, or of unfair
competition, such as by false advertising and the misappropriation of trade
values. Here, the principal location of the defendants conduct may have the

greatest weight. In situations involving the multistate publication of matter

that injures the plaintiffs reputation, or causes him financial injury, or
invades his right of privacy, the place of the plaintiffs domicile or the State
of his nationality, or on occasion, his place of business, may be the most
important contact in determining the applicable law. Where there is a
relationship between the plaintiff and the defendant and when the injury was
caused by an act done in the course of the relationship, the place where the
relationship is centered or has its seat may be the decisive contact. (supra)
The leading case of Babcock v. Jackson (12 N.Y. 473, 240N.Y.S. 2d 743,
N.E. 2d 279 , 1963) is often cited in support of the law of the State of the
most significant relationship rule.
A New York host drove his guest (also from New York) into
Ontario, Canada on a week-end trip. In Ontario, the host lost
control of the automobile, which went off the highway and
bumped against a stone wall. The guest, who was seriously
injured, sued her host in New York to recover for the harm
caused to her by his negligence. Under the law of Ontario,
Canada, the guest was not permitted to sue the host. New York
has no guest statute. It permits the guest to recover for the
hosts negligence.
The Court held that New York law should be applied to
determine the circumstances under which as guest passenger
can recover damages from the driver for injuries caused by the
latters negligence. Both are from New York. The trip began and
was to end in New York. The policy underlying the Ontario guest
statute, namely, to prevent collusion between the host and
guest against the hosts liability insurer does not apply here.
Whether the New York defendants are imposed upon or
defrauded by a New York plaintiff is scarcely a valid legislative
concern of Ontario. Because of this relationship with the
occurrence and the parties, New York has the greatest concern
with the specific issue raised in the litigation.
C.3 The State-interest analysis
The government or state-interest analysis was initiated by Prof.
Brainerd Currie, adopted by a number of courts. It is a radical departure from
the usual method of solving conflicts problems, which has been described as
the blindfold test. The traditional method in most legal systems, including
the Philippines, is to classify a conflicts problem under its proper category
such as tort, contract, property, succession, or family relations then identify
the appropriate connecting factor or point of contact, such as the place of
wrong, or locus delicti in case of torts, and finally apply its law without
further inquiry into its purposes or underlying policies. It was an easy,
mechanical method of just selecting the proper jurisdiction that will give the
ultimate solution to any given problem in the Conflict of Laws. The original
American Restatement adopted and championed this usual method, finding
it most congenial to the vested rights theory. But many leading writers and
jurists, led by Profs. Cook and Lorenzen, exposed the injustice and the
absurdity of the traditional method and the vested rights theory. Having
systematically destroyed the whole system, the critics found it necessary to
formulate a new method of solving problems in the Conflict of Laws. One
such method is the governmental or state-interest analysis advanced by Prof.
Currie, which includes all relevant concerns that a State may have in an
issue not only as a sovereign in a set of facts or an entity but as a repository
of justice. The steps on how it applies to tort problems, where there is no

statutory directive as to the law that should govern the conflicts problem, are
the following.
The first step is to separate false or spurious conflicts from true
conflicts. There is a false or spurious conflict when two or more States
having some connection with the event or the parties have tort rules
pointing to different results, but upon analysis of the purposes underlying the
divergent rules, it become apparent that the purpose of only one of them
would be advanced by its application in the case. In other cases, the conflict
may be found false, because the internal laws of the two or more States
would yield the same result. Hence, a court should carefully evaluate the
facts, consider the purposes and policies underlying the laws of the contact
States, and if it finds that only the law of the State would legitimately
advance its own policies if its rule were applied, there is a clear case of false
conflict. In other words, only one law is rationally applicable to the case in
issue. In the case of Barbara v. Jackson, there was no real conflict of interests
between New York and Ontario. Only New York has an interest in the
application of its law. Ontario has no interest or policy to advance its law
cannot rationally apply. It was a case of false conflict. (Salonga)
What if the given problem poses a real conflict between the interest of
two or more States having some connection with the event or the parties?
Prof. Currie makes a distinction between an interested forum and a
disinterested forum.
Where the forum can reasonably assert an interest in the application of
its law and policy, as against the interest of another State, the forum should
apply its own internal law. An interested forum should take account of the
law of the other State and its interest in having it applied in order to properly
decide the reach of the forums own law. Conceivably, if the interested forum
finds that the other State has a greater claim in the application of its law to a
given case, the forum should graciously yield and apply the law of the other
State. (supra)
Where the forum is a disinterested forum an occurrence Prof. Currie
describes as extremely rare in the United States the court, confronted by
a conflict between the laws of the two other States, should generally dismiss
the case on the ground of forum non conveniens. In short, the conflict is, in
many cases, an avoidable conflict, and the plaintiff should be allowed to
select a more appropriate forum of his choice. But where the conflict is
unavoidable in the sense that it must discharge its duty to decide the case
before it, the disinterested forum should reach a decision that it thinks
Congress would reach if it were to consider the matter.
The 1964 case of Griffith v. United Airlines, 416 Pa. 1 203 A. 2d 796;
1964), furnish some insight into the merit of the state-interest analysis:
A Pennsylvania domiciliary purchased a round trip ticket
from the airline in Pennsylvania for a flight between
Pennsylvania and Arizona. On the trip to Arizona, in the course of
landing at Denver, Colorado, an intermediate stop, the airplane
crashed causing the immediate death of the Pennsylvania
domiciliary. The decedents executor sued the airline in
Pennsylvania.
The immediate issue was whether the law of Colorado (the
place of injury) or the law of Pennsylvania should apply to the
case. The Colorado survival act bars recovery in case of
instantaneous death. The Pennsylvania survival act permits
recovery.

The Court held that the interests of Pennsylvania were

more relevant and weighty that the interest of Colorado. The
surviving dependents were in Pennsylvania. Colorado may have
some interest in protecting defendants from large verdicts, but
the interest of Colorado in protecting United Airlines and
encouraging its activities in Colorado is comparatively slight,
when places against the fact that United was not incorporated in
Colorado, and did business in many other States, including
Pennsylvania.
C.4 Cavers Principles of Preference
When a State, as in the case of the Philippines, has no codal or
statutory provision of the law that should regulate the question of tort
liability in conflicts cases, its courts should be guided by certain rules or
principles in determining which of the conflicting rules of two or more
affected States should apply to an alleged tort, in every case where there is
a true, unavoidable conflict. Lacking such rules or principles of preference,
courts within a State would be left without any compass and every decision
would be an ad hoc decision, thereby creating what has been figuratively
called a free law jurisprudence. There ought to be a middle ground
between the rigidity of the lex loci delicti commissi rule and the anarchic
absence of workable standards. (Salonga)
In carefully thought-out book entitled The Choice-of-Law Process, Prof
. David Cavers advocated certain principles of preference in the field of torts.
They are designed to yield just solutions not only because they provide a fair
accommodation to conflicting policies but also because they afford fair
treatment to the individuals who are caught in the conflict between state
policies.(supra)
1) Where the liability laws of the State of injury set a higher standard of
conduct or of financial protection against injury than do the laws of the
State where the person causing the injury has acted or has his home,
the laws of the State of injury should determine the standard and the
protection applicable to the case, at least where the person injured was
not so related to the person causing the injury that the question should
be relegated to the law governing their relationship.
Example: If Mr. X from State 1 sends a harmful object, agent or
message to State 2, and injury is sustained by Mr. Y, not a relative, In
State 2, it is only fair that where State 2s law sets a higher standard of
conduct or protection than the law of State 1, Mr. X should be held
liable under the law of State 2.
The exception applies to tort suits between spouses which are very
common in many States in the United States. The law governing their
domestic relations, usually the law of their domicile, may apply instead
of the law of the State 2.
2) Where the liability laws of the State in which in which the defendant
acted and caused injury set a lower standard of conduct or of financial
protection than do the laws of the home State of the person suffering
the injury, the laws of the State of conduct and injury should determine
the standard of conduct or protection applicable to the case, at least
where the person injured was not so related to the person causing the
injury to the question should be relegated to the laws governing their
relationship.
Example: If Juan de la Cruz of Manila accidentally inflicts injury on Karl
Graf of West Germany, while on a tour of the Banaue rice terraces of

Ifugao, Philippines, Philippine law should apply notwithstanding the fact

that it sets a lower standard of liability and protection than is provided
by German law.
The reason for the rule is simple. By entering the Philippines, the visitor
accepts the risks and the legal institutions of the country and should
not expect to expose persons living there to a financial hazard that
their law had not created. The rule should apply whether the suit is
filed in the Philippines or in Germany (assuming that Juan de la Cruz
has assets in Germany and jurisdiction could be assumed over him by
German courts).
3) Where the State in which a defendant has acted has established
special controls, including the sanction of civil liability, over conduct of
the kind in which the defendant was engaged when he caused a
foreseeable injury to the plaintiff in another State, the plaintiff, though
having no relationship to the defendant. Should be accorded the
benefit of the special standard of conduct and of financial protection in
the State of the defendants conduct, even though the State of injury
had imposed no such controls or sanctions.
Example: In Schmidt v. Driscoll Hotel, supra, Minnesota established a
special control by means of the dramshop act, which imposes
greater liability on persons who sell liquor on certain circumstances. A
Minnesota driver, who had imbibed too freely in a Minnesota bar,
injured a pedestrian in Wisconsin. Wisconsin has no dramshop act nor
rule imposing liability on the saloonkeeper. It was held that the driver
was liable under the Minnesota law, notwithstanding the fact that
Wisconsin was the place of injury.
The reason is that where a State has chosen to regulate a particular
line of activity by special rules, reinforced by the imposition of liability,
for the purpose of rendering persons engaging in that conduct more
careful or more responsible that they would otherwise be, the benefits
of its protective rules should be extended to persons injured outside
the State, provided that the causing or the injury there was
foreseeable.
4) Where the law of a State in which a relationship has its seat has
imposed a standard of conduct or of financial protection on one party
to that relationship for the benefit of the other party which is higher
that the like standard imposed by the State of injury, the law of the
former State should determine the standard of conduct or financial
protection applicable to the case for the benefit of the party protected
by the States law.
The clearest example here would be the leading case of Babcock v.
Jackson, supra, where New York law permitting the guest to recover for
the hosts negligence was applied (the guest and the host being New
Yorker), though the accident occurred in Ontario, Canada. It should be
noted, however, that although Ontario, Canada was the place of injury,
it has no interest in the application of its guest statute to two New York
residents. As stated earlier, this case is an instance of a false conflict.

II.

POINT OF CONTACT

A.

LEX LOCI DELICTI (The Place of Commission of Torts)

The law of the place where the action causing injury, wrong or death
took place should govern. Most authorities consider this as the
traditional rule on the determination of the applicable law involving tort
or damages in the Philippines.
Lex loci delicti is applied with respect to the substantive phases of torts
or the actions thereof, and determines the question of whether or not an act
or omission gives rise to a right of action or civil liability for tort. For
instance, where an act of omission or commission occurs at one place and
resulting death, personal injury, or damage takes place at another, the situs
of the actionable wrong is the place at which the death, personal injury or
property damage takes place.
Under the traditional choice-of-law rule of lex loci delicti, the forum
court will apply the law of the place of the tort to determine the plaintiffs
right to recover in an action for fraud or deceit, abuse of process, malicious
prosecution, or false imprisonment.
A.1 REASONS FOR THE RULE
1) The state where social disturbance occurred has the primary duty
to redress the wrong, and to determine the effects of injury.
2) The law of the state must be presumed to have been foremost in the
mid of the parties concerned, thus they acted with knowledge of the
resultant consequences under the said law.
It is to be noted, however, that the liability for foreign torts may be
enforced in the Philippines if: (1) the tort is not penal in character; (2) if the
enforcement of the tortious liability wont contravene our public policy; (3) if
our judicial machinery is adequate for such enforcement; and (4) where the
foreign law is fiscal or administrative in nature.
B.

CHARACTERIZATION OF LOCUS DELICTI

There are at least three (three) theories as to where the locus delicti in
tort is:
1) Civil Law Theory provides that the locus delicti is where the act began.
This is because rules on tort are intended to regulate human conduct;
hence a person who willfully or negligently acts contrary to social
norms must be held liable for any injury caused. (See Rabel, Conflict of
Laws, Vol. II, p. 303). Rules on tort are intended to regulate human
conduct, hence a person who acts contrary to social norms must be
held liable.
2) Common Law Theory provides that the locus delicti is where the
tortious act first became effective. The reason is evident: until there is
produced some effect, some result, no injury or wrong has really been
committed, despite the disregard of human norms. The law on torts
seeks to give protection and redress; without injury, there is no
necessity for judicial intervention and relief. (See Sec. 377, American
Restatement).
3) The Theory of Dr. Rabel provides that the locus delicti is the place
which has the most substantial or essential connection with the act.
(example: the situs of the radio station that broadcasts a libelous or
slanderous remark).(See Rabel, Conflict of Laws, Vol. II, p. 334-335).

Example: While negligently cleaning his gun, a person situated in State

A accidentally shot another in State B, who then was rushed to a
hospital in State C, where the victim finally died. Where is the locus
delicti?
Answer:
(i)
According to the civil law theory, the locus delicti is State A
because the negligent act occurred there.
(ii)
Under the common law theory, State B is the locus delicti
because the injury was felt there.
(iii) From the viewpoint of Dr. Rabels theory, the locus delicti is
evidently State A, because it has the most substantial connection with
the tort. Had the gun not been fired, there would have been no injury.
It is submitted that generally the theory of Dr. Rabel should control
as it is the most logical one.
III.

PHILIPPINE COFLICT RULES ON TORTS

The Philippines does not really have any codal or statutory provision
regarding tort liability which is affected by the laws of two or more States.
But now that the Philippines has been drawn into the mainstream of the
international system due to numerous foreign companies doing business in
the country and the rise of our tourism industry, our courts have adopted the
following conflict rules on tort liability.
A.

FORUM INTEREST

In this method, the primary consideration in determining what law should

apply is the interest of the forum. The following methodology may be used in
solving tort problems in the Philippines.
1) Ascertain and weigh the purpose underlying the tort law of the forum.
2) Examine and weigh the interests of the other State.
If the Philippines has substantial connection with the parties or the operative
facts and if the tort law of the Philippines embodies a social or economic
policy, then the law of the forum on torts shall be applied. On the other hand,
if the Philippines has no concern or interest in the application of the internal
law and the other States have interest, then apply the law of such state.
(Private International Law by Salonga, pg. 409)
The factors to consider in determining the interest of other State are (1)the
domicile, residence or place of business of parties , (2)the place of injury or
instigation of the tortuous action, (3)the citizenship of the parties and (4)the
place where relationship is centered (supra, pg 410).
B.

LEX LOCI DELICTI RULE

This rule provides that the law of the place where the alleged tort was
committed will govern. It is based on the theory that the state where social
disturbance occurred has the primary duty to redress the wrong and to
determine the effects of injury. Also, the law of the state must be presumed
to have been foremost in the mind of the parties concerned, thus they acted
with knowledge of the resultant consequences under the said law.
Wildvalley Shipping Co. LTD vs CA
G.R. No. 119602 Oct 6, 2000

(Case)
The President Roxas, a Philippine registered vessel,
navigated by a Venezuelan pilot designated by port authorities ,
obstructed and damaged the vessel of Wildvalley Shipping Co.
Wildvalley file an action for damages in RTC of Manila
Issue: Whether or not Venezuelan law is applicable since the
facts constituting tort giving rise to damages occurred in
Venezuela.
Ruling: No. Venezuelan law was not pleaded and invoked in the
complaint filed. Foreign laws must be alleged and proved. In the
absence of proof, laws of a foreign country will be presumed as
the same as our domestic law. And assuming that Venezuelan
law is proved, it cannot be applied as it is in conflict with
Philippine Law. Philippine law prevails because the countrys
giving effect to another countrys law is merely a matter of
comity except if there is a treaty or a borrowing statute.
C.

STATE OF THE MOST SIGNIFICANT CONTRACTS RULE

The rule arose because of the opinion of some that the rule on
lex loci delicti has become inadequate to meet the modern complexities of
life today.This is also known as State of the Most Significant Relationship
Rule, Center of Gravity Rule and Grouping of Contracts Rule ( Conflicts of Laws
by Agpalo pg. 206).

This rule applies where the tortuous acts occurred in two (2) or more
states and ripens into a cause of action in another State. An action may be
maintained wherever the wrongdoer can be found provided that ( 1) The law
of the nationality of the wrongdoer and the law of the forum (Philippines)
make the wrongful act actionable. In this case, action can be maintained
wherever the wrongdoer can be found and (2)The two countries have similar
statutes on the matter.
This rule also applies when the attendant facts occurred in two or
more States, not one of which constitutes an actionable wrong by itself.
The factors to be evaluated in the application of this rule includes (1)
the place where the injury occurred , (2)the place where the act causing the
injury occurred, (3)the domicile , residence, place of incorporation and place
of business of parties and (4)the place where the relationship of the parties is
centered (supra, pg 215).
Saudi Arabia Airlines vs. CA
297 SCRA 469

(Case)
Morada, a Filipina flight attendant of Saudia Airlines was
wrongfully convicted of adultery and immoral acts in Saudi
Arabia. She was handed to the authorities by her employer
Saudia Airlines and was unjustly terminated afterwards. She filed
a complaint for damages in RTC of Quezon Cityc. Saudia
contends that since the claim of abuse of rights occurred in
Saudi Arabia , the applicable law is that of Saudi Arabia. On the
other hand, Morida contends that since her compliant s for
recovery of damages under the Civil Code, domestic law must
apply.
Issue: Whether or not Philippine law is applicable.

Ruling: Philippine Law is applicable. Morida no longer has

substantial connection with Saudi Arabia. Morida, a Filipino
national, is now working and residing in the Philippines and it
woud be unfair to her if she would be forced to seek remedial
action in Saudi. Saudia is also a resident foreign corporation who
is engaged in airline business in the Philippines and maintains a
branch office in Manila. Thus the relationship of the parties is
centered in the Philippines and the Point of Contact in this case
is the Philippines because it is where Morida was allegedly
deceived by the manager of Saudia Airlines to go back to Jeddah
which led to her wrongful arrest.
D.

AGREEMENT OF PARTIES AS TO APPLICABLE LAW

Parties to an agreement may stipulate as to the law which will

govern in case of dispute arising therefrom and such stipulation shall
be respected except in so far as prohibitive law or public policy prohibits
its application (Conflicts of Laws by Agpalo pg. 226).

Suzara vs. Benipayo

G.R. No. L-57999 Aug 15, 1989

(Case)
Filipino crewmen executed an agreement with Japanese
shipowners fixing the rates of their compensation. The contract
was executed in Japan. While the vessel was in Canada, the
crewmen secured rate increases over and above what had been
agreed. Employer subsequently claimed that the special
agreement done in Canada was obtained by force and undue
influence.
Issue: Whether or not the special agreement executed in
Canada was binding between the Japanese employer and Filipino
crew.
Ruling: Yes, the parties can validly amend their contract during
its effectivity in accordance with the rules prescribed by the
National Seamen Board of the Philippines even if they are in a
foreign country like Canada as long as such agreement was not
made thru fraud, intimidation and undue influence.

IV.

SPECIAL CASES APPLYING THE CONFLICT OF LAWS RULE

A.

OVERSEAS EMPLOYMENT OF FILIPINO WORKERS

The traditional rule of conflict of laws is that the law of country where
physical injury or death of a person occurred governs the liability of the
person responsible thereof or of the employer of the injured or deceased
person, as well as the amount of compensation which the injured or the heirs
would be entitled. If the claim for injury or death is based on tort, principles,
like Lex loci actus or the law of the place where the act was done or lex lici
delicti commissi or the law of the place where the injury occurred or the
liabilities of the parties are fixed, have been applied. If the claim for injuries
or death is based on contract, the doctrine of Lex loci solutionis or the law of

the place of performance is invoked. As a reaction to the doctrine which

limits the damages by the law of the place of death or injury, the Kilberg
doctrine was evolved, which states that "in conflicts of law, a rule to the
effect that the forum is not bound by the law of the place of death as to the
limitation on damages for wrongful deaths because such rule is procedural
and hence the law of the forum governs on this issue" is applied.
Where the law of the place of death or injury limits the amount of
recoverable damages, and the law of the place where the action is filed does
not provide any limitation, the latter applies and the court may adjudge the
defendant liable for more than what is fixed in the place of death or injury, in
accordance with the Kilberg doctrine. Similarly, where the action is based on
contract executed in a country which prescribes no limit as to the amount of
recoverable damages and in which the action is filed, the court of the forum
w ill apply the law of the place of execution of contract as against the law of
the place where the actionable wrong took place. 1
It is obvious under the foregoing rule that in order to maintain an action
of tort founded upon an injury to person or property, the case, which is the
cause of the injury, and the foundation of the action must therefore be at
least actionable by the law of the place in which it is done. Correspondingly,
if no legally maintainable action is created by the place of the wrong, none
exists else- where. 2
The prosecution of transitory action in state or country other than that
in which the cause of action arises is based on comity, so that where under
the lex loci no right of action exists, no action can be maintained by the
courts of the forum, although the event in question would create a cause of
action at common law or by statute under the law of the forum. The question
as to whether the law of the forum or that of the jurisdiction in which the
transaction out of which the alleged cause of action arose took place should
be applied in a particular case in determining the existence of a ground of
action is not discretionary with the court. 3
In the instant case, even if the tortuous act can be generally prosecuted
on the place where the injury happened with the exception being is the
Kilberg doctrine. The doctrine itself, originated from an American
jurisprudence, has been widely accepted as a remedy for those individuals
aggrieved by the rule that only the place where the tortuous act that the
action for damages can be filed.
A.1 Kilberg Doctrine

The traditional rules of conflict of laws do not apply in case there is a

contrary law of the forum, where the case is filed. Where there is a local or
domestic law on the matter and the case is filed in the court or
administrative agency of the forum, rules of conflict of law must yield to the
former, as rules of conflict of laws cannot be higher than, nor negate, the
local law which ex- presses the public policy on the matter. In the case of
overseas workers or seamen of the Philippines, the law creating the
Philippine Overseas Employment Administration, provides, among others,
that the P O E A "shall have original and exclusive jurisdiction over all cases,
including money claims, involving employer-employee relations arising out of
or by virtue of any law or contract involving Filipino workers for overseas
employment, including seamen." With respect to seamen, the rules
promulgated to implement the law specify the amount of compensation and
1
2
3
4

Agpalo, Ruben E., Conflict of Laws, 2004, p. 240

Agpalo, Ruben E., Conflict of Laws, 2004, p. 202
Supra Footnote 1
Blacks Law Dictionary, Fifth Ed., p. 782

benefits during the term of the contract, in case of total and permanent
disability or death of the seamen. Such law, irrespective of where the injury
or death occurred, or whether it secured an insurance to cover its risks and
the seaman who was injured or died failed to avail or receive the insurance
benefits, binds the foreign employer and wherever the vessel is registered. In
a case involving a claim of a Filipino seamen, the Court ruled that the
"underlying regulatory policy, as we see it, is that Filipino seamen working on
ocean-going vessels should receive the same wages and benefits, without
regard to the nationality or nationalities of the vessels on which they serve. 5
This is a rule applied in suits involving conflicts of law that provides
that the forum is not bound by the law of the place of injury or death as to
the limitation on damages for wrongful death action. The rationale behind
the doctrine is that laws that set limitations on damages are procedural.
Hence the law of the forum should govern the issue. In the case of Kilberg v.
Northeast Airlines, the doctrine was elaborated:
On August 15, 1958, a passenger for hire, traveling in the
defendant's plane from New York to Nantucket, Massachusetts,
was killed when the plane crashed on Nantucket Island. The
cause of action under consideration, predicated upon the breach
of a contract made in New York, seeks to recover for loss of
accumulation on behalf of the estate, pursuant to the New York
Decedent Estate Law. The plaintiff alleges substantially that the
defendant breached its implied contract of safe carriage by the
negligent operation of its plane, culminating in its destruction
and the death of the passenger. The plaintiff does not question
the general rule that the right to recover in a death action is
governed by the law of the place where the wrong occurred.
However, he contends that the cause of action is not one for
wrongful death, or for damages for loss suffered by the
decedent's survivors by reason of his death, but that "It merely
asserts a statutory codification of a common law cause of action
for breach of contract, and seeks on behalf of the decedent's
Estate to recover for such Estate the amount the deceased
would have accumulated had he lived out his normal life
expectancy." The short answer is that the cause of action alleges
a breach of duty through negligence. The fact that it has been
seductively clothed in form ex contractu does not control. Relief,
if any, may be obtained only upon proof of the defendant's
negligence. It follows, therefore, that the laws of Massachusetts,
where the injuries were inflicted, govern the extent of the
damages, which may be recovered. The court also held that a
contract action for wrongful death is known as common law. In
any case, the statutory limit of $15,000 limit is not applicable. In
airplane flights, the place of injury becomes entirely fortuitous.
Our courts should if possible, provide protection for our own
States people against unfair and anachronistic treatment of the
lawsuits which result from these disasters. In any event, the
imposition of the limit is contrary to New Yorks policy. Moreover,
the question of limit on damages is procedural and should be
controlled by the law of the forum. New York law was held
applicable.6
In another case applying the Kilberg doctrine, the death of an Overseas
Filipino Worker caused his wife to file a case against the employer.

5
6

Eastern Shipping Lines, Inc. POEA, 170 SCRA 54, 62 [1989]

Kilberg v. Northeast Airlines, N.Y. 2d 34, 211 N.Y.S. 2d 133, 172 N.E. 2d 526 (1961)

Vitaliano Saco, the Chief Officer of a ship, was killed in an

accident in Tokyo, Japan. The widow filed a complaint for
damages against Eastern Shipping Lines with the POEA, based
on Memorandum Circular No. 2 issued by the latter. This circular
prescribed a standard contract to be adopted by both foreign
and domestic shipping companies in the hiring of Filipino
seamen for overseas employment. Eastern Shipping Lines
questioned the validity of the memorandum circular and
contended that Saco is not an OFW but a domestic employee
and, as such, is entitled only to the death benefits under the
Labor Code (lower amount). The issue now is whether or not the
widow is entitled to the death benefits under Memorandum
Circular No. 2. The Supreme Court held that on the issue of
validity of the memorandum circular, SC held that it was valid.
The law creating the POEA, provides, among others, that it shall
have original and exclusive jurisdiction over all cases, including
money claims, involving employer-employee relations arising out
of or by virtue of any law or contract involving Filipino workers
for overseas employment, including seamen. Clearly then POEA
has such delegated power to promulgate the questioned circular,
as an exception to the non-delegation principle.7
The limitation of these rules on conflicts of law is that it does not apply
in cases where there is a contrary rule in the forum where the case is filed.
Therefore, the law creating the Philippine Overseas Employment
Administration and such other laws specifying the amount of compensation
and benefits during the term of the contract bind foreign employers.
B.

CARRIAGE OF GOODS BY SEA ACT (COGSA)

B.1 Background of the Act

The Carriage of Goods by Sea Act (hereinafter referred to as COGSA)
is a United States statute (Public Act No. 521, approved in 1936) governing
the rights and responsibilities between shippers of cargo and ship-owners
regarding ocean shipments to and from the United States. It is the US
enactment of the International Convention Regarding Bills of Lading,
commonly known as the Hague Rules.8
A contract of carriage of goods from Philippine ports or from foreign
ports to the Philippines always involves foreign elements because such is the
nature of a contract for shipment of goods. The parties involved are usually
the ship owner, the shipper, the ship agent of the vessel, the cargo owner,
the consignee, and the insurance company, which insured the cargo or the
vessel. The parties are usually mostly foreign companies. The ship travels
from one port to another, before reaching its destination in the course of
which the voyage may be delayed, the vessel may figure in a collusion with
other vessels in foreign ports or in the high seas, and, as a consequence,
there may loss of or damage to the cargo or the vessel or both. If the action
for damages, as a consequence, is filed in a Philippine court, the question
does not raise any complicated conflict of laws situation. For in such a case,
the question of liability, who is liable, the extent of liability, the burden of
proof, and the applicable prescriptive period, are invariably resolved by
applying the Carriage of Goods by Sea Act, which has been adopted by the
Philippines as part of its law on carriage of goods to or from Philippine ports.
9

7
8
9

Eastern Shipping Lines v. POEA, 166 SCRA 533 (1988)

Agpalo, Ruben E., Conflict of Laws, 2004 Ed.
Agpalo, Ruben E., Conflict of Laws, 2004, p. 244-245

C.O.G.S.A is a suppletory law applicable in cases involving the carriage

of goods to the Philippine ports in foreign trade. The Civil Code, in default of
such provisions, shall govern the rights and obligations of common carriers in
all contracts of carriage of goods by sea to Philippine ports from foreign ports
by that of the Code of Commerce and other special laws, and in the absence
of both, by the C.O.G.S.A. 10
Article 1753 of the New Civil Code states that the law of the
country to which the goods are to be transported shall govern
the liability of the common carrier for their loss, destruction or
deterioration. 11
Article 1766 of the New Civil Code states that in all matters not
regulated by this Code, the rights and obligations of common
carriers shall be governed by the Code of Commerce and by
special laws. 12
It governs the acts that a carrier is responsible for and defines the
terms used in shipping. It also provides that the ship owners liability will be
limited to $500 per shipping package, and it stipulates a one-year limit for
filing suit against the carrier. This Act automatically applies to international
ocean movements but not to domestic ocean transits unless the carrier
agrees to be bound by it.
When the United States Congress enacted said Act, the political status
of the Philippines was then Commonwealth Government and, therefore, was
a territory of the United States. In view of the particular relations then
existing between the United States and the Philippines, Congress gave the
latter the choice of making or not making the provisions of said Act
applicable to transportation to or form ports of the Philippines by inserting in
Section 13 thereof a proviso to the effect that the Philippine Legislature
may, by law, exclude its application to transportation to or form ports of the
Philippine Islands. The Commonwealth Government, however, elected to
accept and make applicable to the Philippines said Act through
Commonwealth Act No. 65 approved on April 22, 1936, wherein it was
provided (Section 1) that the provisions of the Carriage of Goods by
Sea Act are hereby accepted to be made applicable to all contracts
for the carriage of goods by sea to and from Philippine ports in
foreign trade: Provided, That nothing in this Act shall be construed
as repealing any existing provision of the Code of Commerce which
is now in force, or as limiting its application. 13
COGSAs overarching purpose is to allocate risk of loss and create
predictable liability rules on which not only carriers but also others can rely. It
governs claims for damage to cargo shipped in international commerce.
Under the COGSA, The carrier is prohibited from contracting away its own
negligence or limiting its liability to a level lower than what is prescribed by
the statute.
On October 22, 1936, the National Assembly of the Commonwealth
Government made COGSA applicable to the Philippines upon the election
and approval of Commonwealth Act No. 55.
B.2 Application of the Act

10
11
12
13

Salonga, Jovito R., Private International Law, Central Lawbook Pub. Co., 1967
Art. 1753, New Civil Code of the Philippines
Art. 1766, New Civil Code of the Philippines
Chua Kuy v. Everett Steamship Corporation, G.R. No. L-5554, May 27, 1953

The Carriage of Goods by Sea Act is a special law, which by virtue of

Section 1 thereof cannot be construed as repealing or limiting any provision
of the Code of Commerce, then in force. It may operate only as suppletory
law to the Code of Commerce, supplying the deficiencies of the latter relating
to contract of carriage of goods by sea in foreign trade.
Generally, Articles 1753 & 1766 of the Civil Code shall govern the right
and obligations of common carriers in all contracts of carriage of goods by
sea to Philippine ports from foreign ports. Under Article 1753, the law of the
country to which the goods are to be transported shall govern the liability of
the common carrier for their loss, destruction or deterioration. As to
contracts for the carriage of goods by sea from a foreign port to the
Philippines, the provisions of the Civil Code on common carriers shall
primarily govern under the authority of Article 1766 which provides that in all
matters not regulated by this Code, the rights and obligations of common
carriers shall be governed by the Code of Commerce and special laws. Where
the Civil Code does not provide, the provisions of the Code of Commerce and
special laws, such as the COGSA shall govern suppletorily. In case of any
conflict between the provisions of the Code of Commerce and the COGSA,
under Section 1 of said Act, the former shall prevail.
The following requisites must concur in order to apply COGSA:
1) There must be a contract of carriage between the ship owner or
its agent and the shipper;
2) The contract must be for the carriage of goods;
3) For transportation by sea; and
4) In foreign trade, UNLESS expressly agreed upon by the parties to
apply in domestic shipping.
B. 3 Limited Liability Clause under the COGSA
Section 4(5). Neither the carrier nor the ship shall in any
event be or become liable for any loss or damage to or in
connection with the transportation of goods in an amount
exceeding $500 per package lawful money of the United
States, or in case of goods not shipped in packages, per
customary freight unit, or the equivalent of that sum in other
currency, unless the nature and value of such goods have
been declared by the shipper before shipment and inserted in
the bill of lading. This declaration, if embodied in the bill of
lading, shall be prima facie evidence, but shall not be
conclusive on the carrier.
By agreement between the carrier, master, or agent of the
carrier, and the shipper another maximum amount than that
mentioned in this paragraph may be fixed: Provided, that
such maximum shall not be less than the figure above
named. In no event shall the carrier be liable for more than
the amount of damage actually sustained.
Neither the carrier nor the ship shall be responsible in any
event for loss or damage to or in connection with the
transportation of the goods if the nature or value thereof has
been knowingly and fraudulently misstated by the shipper in
the bill of lading. 14

14

C.O.G.S.A, Sect. 4(5)

In the case of Eastern Shipping Lines, Inc. v. IAC (150 SCRA 463, 473474), the Supreme Court held that the Civil Code does not of itself limit the
liability of the common carrier to a fixed amount per package although the
Code expressly permits a stipulation limiting such liability (Art. 1749); thus,
the COGSA, which is suppletory to the provisions of the Civil Code, steps in
and supplements the Code by establishing a statutory provision limiting the
carrier's liability in the absence of a declaration of a higher value of the
goods by the shipper in the bill of lading. The provisions of the Carriage
of Goods by Sea Act on limited liability are as much a part of a bill of
lading as though physically in it and as much a part thereof as
though placed therein by agreement of the parties.
Since there is no stipulation in the respective bills of lading, limiting the
carriers liability for the loss or destruction of the goods, nor is there a
declaration of a higher value of the goods, then the provisions of the Civil
Code (Arts. 1739 & 1750) do not apply. Hence, the carriers liability will be
under the COGSA, as suppletory law, and will not exceed US$500 per
package or its peso equivalent, at the time of payment of the value of goods
lost, but in no case more than the amount of damage actually sustained.
The rule was explained by the Philippine jurisprudence as held by the
Supreme Court:
Private respondent, Hernandez Trading Co., imported three
crates of bus spare parts from its supplier, Maruman Trading
Co., a foreign corporation based in Inazawa, Aichi, Japan. The
crates were shipped to Manila on board a vessel owned by
petitioners principal, Everett Orient Lines. Upon arrival in
Manila, one of the crates went missing, prompting Hernandez
Trading to file a formal claim in an amount equivalent to that
stated in the invoice. But Everett offered to pay only the
amount stipulated in the limited liability clause contained in the
bill of lading, which amount is lower than that stated in the
invoice. The query now is whether or not the limited liability
clause in the bill of lading is valid. The Supreme Court held in
the affirmative. The questioned stipulation is reasonable and
just. In the bill of lading, the carrier made it clear that its
liability would only be up to Y100, 000. However, the shipper
Maruman Trading had the option to declare a higher valuation if
the value of its cargo was higher than the limited liability of the
carrier. Considering that the shipper did not declare a higher
valuation, it had itself to blame for not complying with the
stipulation. On the issue that the bill of lading is a contract of
adhesion, SC ruled that such contract is not invalid per se. SC
held that Maruma Trading, having been extensively engaged in
trade, cannot be said to be ignorant. Everett, even if only a
consignee and thus not a signatory to the contract, is bound by
it. SC likened the contract of carriage to that of a contract
entered in favor of a stranger (contract pour atrui). Moreover,
by seeking recovery for the loss of the goods, Everett is
necessarily trying to enforce the contract. So it cannot now
reject the stipulation. Lastly, the higher valuation in the invoice
is irrelevant. For the shipper to recover a higher valuation, the
declaration must be in writing and inserted in the bill of lading.
Thus, the higher valuation in the invoice is of no moment since
the same was not made a part of the bill of lading. 15
Under also the C.O.G.S.A provision, it states that:
15

Everett Steamship Corp. v. CA, G.R. No. 122494, Oct. 8, 1998

Section 3(8). Any clause, covenant, or agreement in a

contract of carriage relieving the carrier or the ship from
liability for loss or damage to or in connection with the
goods, arising from negligence, fault, or failure in the
duties and obligations provided in this section, or
lessening such liability otherwise than as provided in
this Act, shall be null and void and of no effect. A benefit
of insurance in favor of the carrier, or similar clause, shall
be deemed to be a clause relieving the carrier from
liability. 16
However, the consignee of goods is not a signatory to the bill of lading
and is not ordinarily bound by the provisions of the bill of lading. The bill of
lading serves as a receipt of goods by the carrier and at the same time a
contract of carriage which, more of- ten than not, contains a limited liability
clause, providing that unless the shipper or owner of the goods declares a
higher value than what is provided in the limited liability clause the carrier is
not liable for more than the amount therein stated. However, the consignee
may be bound by said limited liability clause either by reason of a relation of
agency that may exist between him and the shipper or consignor or by
demanding fulfillment of some provisions of the contract in his favor. 17
B.3 Loss or Damage under COGSA
As defined in Article 1169 of the New Civil Code and as applied to
paragraph 4, Section 3(6) of the COGSA, loss contemplates merely a
situation where no delivery at all was made by the shipper of the goods
because the same (1) had perished, (2) gone out of commerce, or (3)
disappeared in such a way that their existence is unknown or they cannot be
recovered. It does not include a situation where there was indeed delivery
but delivery to the wrong person, or a misdelivery. Non-delivery should be
distinguished from misdelivery.
In this scenario, the rule was explained by the Supreme Court in the
latter case:
Petitioner Mitsui OSK is a foreign corporation represented
in the Philippines by its agent, Magsaysay Agencies. It entered
into a contract of carriage through Meister Transport, an
international freight forwarder, with private respondent Lavine
Loungewear Manufacturing Corp. to transport goods of the
latter from Manila to Le Havre, France. However, the delivery
was delayed, with the result that the consignee allegedly paid
only half the value of the said goods on the ground that they
did not arrive in France until the off season in that country.
Thus, Lavine Loungewear filed a case in the RTC for the
damages incurred. For its part Mitsui OSK filed a motion to
dismiss alleging that the claim against it had prescribed under
COGSA. RTC denied the motion to dismiss, which order was
affirmed by CA. Hence, this petition. The question raised before
the highest court was whether private respondents action for
loss or damage to goods shipped is within the meaning of
COGSA. It held that the goods becoming off season is not the
loss or damage as contemplated under COGSA so that any
action based on such loss or damage is not barred by the oneyear prescriptive period under COGSA. Under COGSA, Loss
16
17

C.O.G.S.A, Sect. 3(8)

Ibid.

contemplates merely a situation where the shipper of the goods

at all made no delivery because the same had perished, gone
out of commerce, or disappeared in such a way that their
existence is unknown or they cannot be recovered.
Conformably with this concept of what constitutes loss or
damage, this Court held in another case that the deterioration
of goods due to delay in their transportation constitutes loss
or damage within the meaning of COGSA, so that as suit was
not brought within one year the action was barred. Said oneyear period of limitation is designed to meet the exigencies of
maritime hazards. However, in the case at bar, there is neither
deterioration nor disappearance nor destruction of goods
caused by the carriers breach of contract. Whatever reduction
there may have been in the value of the goods is not due to
their deterioration or disappearance because they had been
damaged in transit, but to other causes independent of the
condition of the cargo upon arrival, like a drop in their market
value. The question is not the particular sense of damages as
it refers to the physical loss or damage of a shippers goods as
specifically covered by COGSA but petitioners potential liability
for the damages it has caused in the general sense. Thus, Art
governs not by the COGSA but the question of prescription of
action. Article 1144 of the Civil Code, which provides for a
prescriptive period of ten years. 18
B. 4 Special Rules
1) If the tort is committed aboard a public vessel, whether on the
high seas or in foreign territorial waters, the country to which the
vessel belongs is the locus delicti; the law of the flag is thus the
lex loci delicti commissi.
2) If the tort takes place aboard a private or merchant vessel on the
high seas, the law of the flag is likewise the lex loci delicti
commissi.
It is to be noted however that it is suggested that generally the law of
the flag must be also determinative. The rules in the case of crime should
necessarily be applied because in the case of torts the parties are interested
merely in the civil liability, not the public punishment of the offense.
B.5 Maritime torts
1) If the colliding vessels are of the same state, or carry the same
flag, said law is the lex loci delicti commissi.
2) If the vessels come from different states, whose laws however,
on the matter are identical, said laws constitute the lex loci
delicti commissi.
3) If the vessels come from different states with different laws, the
lex loci delicti commissi is the general maritime law as
understood and applied by the forum where the case is tried
B.6 Law of the Flag (also known as the Registry of Vessel)
Under this doctrine, the law of the country of the vessels registry
governs. As a general rule, foreign vessels entering Philippine ports or waters
are beyond the jurisdiction of the courts of this country, in matters

18

Mitsui O.S.K. Lines LTD v. CA, G.R. No. 119571, March 11, 1998

concerning discipline and all things in the foreign ship affecting only the
vessel and those belonging to her.
Following the law of the flag, for which the Philippines adhere to,
foreign vessels entering Philippine ports or waters are beyond the jurisdiction
of the courts of this country, in matters concerning discipline and all things in
the foreign ship affecting only the vessel and those belonging to her.
However, by enetering Philippine ports or waters, such vessel subjects
herself to the jurisdiction of the Philippines in matters, which involve the
peace and tranquility of the country, such as the commission of a crime
therein, or of the tortuous acts causing injuries. 19
The Law of the Flag generally supercedes the lex loci delicti test for
tort jurisdiction.The law of the flag, however, will not be applied where
considerations against its application outweigh those in its favor. An example
would be where the wrongful act or omission caused injury to the countrys
citizen or where the local law is designed to protect seamen in Philippine
ports. 20
The following are the exceptions to the general rule:
1) Matters, which affect the peace and tranquility of the country
(e.g. crime or torts)
2) Acts committed on board the vessel produce pernicious effects
within the territory
3) Offense against the law of nations (e.g. piracy)
4) Wrongful act or omission caused injury to the countrys citizen
5) Local law is designed to protect seamen in Philippine ports
One of the exceptions may be explained in the following case:
Wong Cheng is a Chinese national on board a merchant
vessel of English nationality anchored in Manila Bay, two and a
half miles from the shores of the city. He was caught illegally
smoking opium, an act violative of the Opium Law of the
Philippines. The defense was that since he was on board a vessel
registered in England, the Philippines has no jurisdiction over the
crime. The query raised was whether or not the courts of the
Philippines have jurisdiction over crime committed aboard
merchant vessels anchored in our jurisdiction waters. Mere
possession of opium aboard a foreign vessel in transit was held
by this court not triable by or courts, because it being the
primary object of our Opium Law to protect the inhabitants of the
Philippines against the disastrous effects entailed by the use of
this drug, its mere possession in such a ship, without being used
in our territory, does not being about in the said territory those
effects that our statute contemplates avoiding. Hence such a
mere possession is not considered a disturbance of the public
order. But to smoke opium within our territorial limits, even
though aboard a foreign merchant ship, is certainly a breach of
the public order here established, because it causes such drug to
produce its pernicious effects within our territory. It seriously
contravenes the purpose that our Legislature has in mind in
enacting the aforesaid repressive statute. 21

19
20
21

Agpalo, Ruben E., Conflict of Laws, 2004 Ed., p. 250

Salonga, Jovito R., Private International Law, Central Lawbook Pub. Co., 1967
People vs Wong Cheng, G.R. No. L-18924, Oct. 19, 1922

When a foreign vessel ship enters territorial waters, the ship's officers
and crew are subject to the jurisdiction of the territorial courts, subject to
such limitations only as have been conceded by the territorial severing
through the proper political agencies. The offense of failing to provide
suitable means as se- curing animals while transporting them on a ship from
a foreign port to a port of the Philippine Islands is within in the jurisdiction of
the courts of the Philip- pines when the forbidden conditions existed during
the time the ship was within territorial waters, regardless of the fat that the
same conditions existed when the ship sailed from the foreign port and while
it was on the high seas. 22
In the law of piracy, the attack or seizure of any vessel or its cargo, on
the high seas or on Philippine waters, by any per- son or persons is a crime
against the whole and the perpetra- tors can be prosecuted and convicted in
the country. The fact that the vessel is of foreign registry or the perpetrators
are not citi- zens or nationals of the Philippines does not preclude Philippine
courts from acquiring jurisdiction over the offense, as the offense is an
offense against the law of nations. The fact that the vessel is brought to
another country and its cargo unloaded therein does not prevent Philippine
courts from acquiring jurisdiction over the persons of the accused who, by
their arrest, may be brought to Philippine jurisdiction and enable the
Philippine courts to acquire jurisdiction over their persons. 23
As per American jurisprudence, certain maritime matters are
determined pursuant to the law of the state whose flag the vessel flies. The
ship is constructively a floating part of the state, based on the pragmatic
view that there must be some law on shipboard that cannot change with
every change of wa- ters. The law of the flag is generally applied in matters
of sub- stantive law, to matters of discipline on board a vessel, to contracts
made in a foreign port by the master on behalf of the owner, and to
employment contract of a seaman with a foreign vessel. The law of the flag
usually supersedes the lex loc delicti test of tort jurisdiction. 24
The law of the flag is not, however, controlling and will not be applied
where considerations against its application outweigh those in its favor, as
where the wrongful act or omission caused injury to the country's citizen or
where the local law is designed to protect seamen in Philippine ports. 25
V.

ENFORCEABILITY OF FOREIGN TORTS IN THE PHILIPPINES

A.

FOREIGN TORTS CONCEPT AND COGNIZANCE

A foreign tort pertains to decisions rendered outside the forum and

encompasses judgments, decrees and orders of courts of foreign countries. It
is also the passive act of giving effect to a judgment of another forum
without necessarily filing an action in the forum giving effect to the
judgment.
To recognize foreign judgments, the following proofs may be used:
1) Written Law
a.1) By written publication
a.2) Copy attested to by the officer having custody accompanied with a
certificate that
such officer has the custody and sealed by the

22
23
24
25

US v. Bull, pp. 730-733

People v. Tulin, 364 SCRA 10 [2001]
2 Am. Jur. 2d, pp. 770-771
Supra Footnote 13

appropriate public officer (Section 24, Rule 132 of the Revised

Rules of Court)
2) Unwritten Law
b.1) By the oral testimony of expert witnesses or writings of jurists
B.

CONDITIONS AND REQUISITES

Foreign judgment is enforced when, in addition to being recognized, a

party is given relief to which the judgment entitles him and it necessarily
requires the filing of an action. However, to enforce claims of foreign torts,
the following requisites must concur:
1) Foreign judgment was rendered by a judicial or a quasi-judicial
tribunal which had a competent jurisdiction over the parties and
the case in the proper judicial proceedings in which the
defendant shall have been given reasonable notice and
opportunity to be heard.
2) It must be a judgment on civil and commercial matters.
3) The judgment must be valid according to the court that rendered
the decision.
4) Judgment must be final and executory to constitute res judicata
in another action.
5) Foreign judgment must not be contrary to public policy of the
good morals of the State where it is to be enforced
6) Judgment must not been obtained by fraud, collusion, mistake of
fact or mistake of law.
7) The foreign judgment must not be barred by prescription under
the law of the State in which it was promulgated or under the law
of State in which its recognition/enforcement is sought.

C.

EFFECT OF FOREIGN JUDGMENT

The effect of a judgment or final order of a tribunal of a foreign

country, having jurisdiction to render judgment or final order is as follows:
1) In case of a judgment or final order upon a specific thing, the
judgment or final order is conclusive upon the title to the thing
2) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as
between the parties and their successors-in-interest by a
subsequent title.
It is to be noted however that in either case, the judgment or final
order may be repelled by evidence of want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact (Rule 39, Section 48
of the Revised Rules of Court).
D.

TWO REMEDIES IN CONFLICTS OF LAW:

1) Enforcement of rights that accrued in a foreign country, completely or
partly, in the form of actions filed in the Philippines by the aggrieved
party.

Application by Philippine Courts of the Proper Lex Loci Delicti

Commissi
Saudi Arabian Airlines vs CA
GR. 122191 October 8, 1998
Milagros Morada was working as a stewardess for Saudia
Arabian Airlines. In 1990, while she and some co-workers were in
a lay-over in Jakarta, Indonesia, an Arab co-worker tried to rape
her in a hotel room. Fortunately, a roomboy heard her cry for
help and two of her Arab co-workers were arrested and detained
in Indonesia. Later, Saudia Airlines re-assigned her to work in
their Manila office. While working in Manila, Saudia Airlines
advised her to meet with a Saudia Airlines officer in Saudi. She
did but to her surprise, she was brought to a Saudi court where
she was interrogated and eventually sentenced to 5 months
imprisonment and 289 lashes; she allegedly violated Muslim
customs by partying with males. The Prince of Makkah got wind
of her conviction and the Prince determined that she was
wrongfully convicted hence the Prince absolved her and sent her
back to the Philippines. Saudia Airlines later on dismissed
Morada. Morada then sued Saudia Airlines for damages under
Article 19 and 21 of the Civil Code. Saudia Airlines filed a motion
to dismiss on the ground that the RTC has no jurisdiction over
the case because the applicable law should be the law of Saudi
Arabia. Saudia Airlines also prayed for other reliefs under the
premises.
ISSUE: Whether or not Saudia Airlines contention is correct.
HELD: No. Firstly, the RTC has acquired jurisdiction over Saudia
Airlines when the latter filed a motion to dismiss with petition for
other reliefs. The asking for other reliefs effectively asked the
court to make a determination of Saudia Airliness rights hence a
submission to the courts jurisdiction.
Secondly, the RTC has acquired jurisdiction over the case
because as alleged in the complaint of Morada, she is bringing
the suit for damages under the provisions of our Civil Law and
not of the Arabian Law. Morada then has the right to file it in the
QC RTC because under the Rules of Court, a plaintiff may elect
whether to file an action in personam (case at bar) in the place
where she resides or where the defendant resides. Obviously, it
is well within her right to file the case here because if shell file it
in Saudi Arabia, it will be very disadvantageous for her (and of
course, again, Philippine Civil Law is the law invoked).
Thirdly, one important test factor to determine where to
file a case, if there is a foreign element involved, is the so called
locus actus or where an act has been done. In the case at bar,
Morada was already working in Manila when she was summoned
by her superior to go to Saudi Arabia to meet with a Saudia
Airlines officer. She was not informed that she was going to
appear in a court trial. Clearly, she was defrauded into appearing
before a court trial which led to her wrongful conviction. The act
of defrauding, which is tortuous, was committed in Manila and
this led to her humiliation, misery, and suffering. And applying
the torts principle in a conflicts case, the SC finds that the

Philippines could be said as a situs of the tort (the place where

the alleged tortious conduct took place).
A factual situation that cuts across territorial lines and is affected by the
diverse laws of two or more states is said to contain a foreign element. The
presence of a foreign element is inevitable since social and economic affairs
of individuals and associations are rarely confined to the geographic limits of
their birth or conception.
The forms in which this foreign element may appear are many. The
foreign element may simply consist in the fact that one of the parties to a
contract is an alien or has a foreign domicile, or that a contract between
nationals of one State involves properties situated in another State. In other
cases, the foreign element may assume a complex form.
Considering that the complaint in the court a quo is one involving torts,
the connecting factor or point of contact could be the place or places where
the tortious conduct or lex loci actus occurred. And applying the torts
principle in a conflicts case, we find that the Philippines could be said as a
situs of the tort (the place where the alleged tortious conduct took place).
This is because it is in the Philippines where petitioner allegedly deceived
private respondent, a Filipina residing and working here.
Moreover, with the widespread criticism of the traditional rule of lex loci
delicti commissi, modern theories and rules on tort liability have been
advanced to offer fresh judicial approaches to arrive at just results. In
keeping abreast with the modern theories on tort liability, we find here an
occasion to apply the State of the most significant relationship rule, which in
our view should be appropriate to apply now, given the factual context of
this case.
In applying said principle to determine the State which has the most
significant relationship, the following contacts are to be taken into account
and evaluated according to their relative importance with respect to the
particular issue: (a) the place where the injury occurred; (b) the place where
the conduct causing the injury occurred; (c) the domicile, residence,
nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered
2) Recognition and enforcement of a foreign judgment in the form of
petition or complaint to enforce such foreign judgment in the Phil.
courts.
Application of Foreign Judgment in Philippine Courts
Mijares vs Randa
GR 139325, April 12, 2005
May 9 1991: a complaint was filed by ten Filipino citizens
representing a class of 10,000 members who each alleged
having suffered human rights abuses such as arbitrary
detention, torture and rape in the hands of police or military
forces during the Marcos regime with the United States District
Court (US District Court), District of Hawaii, against the Estate of
former Philippine President Ferdinand E. Marcos (Marcos Estate).
US District Court and Affirmed by US CA: awarded them
$1,964,005,859.90. Petitioners filed Complaint with Makati RTC
for the enforcement of the Final Judgment. Marcos Estate filed a

motion to dismiss contending the non-payment of the correct

filing fees that amounted to $2.25 billion and paying only P410.
Petitioners claimed that an action for the enforcement of a
foreign judgment is not capable of pecuniary estimation.
RTC: estimated the proper amount of filing fees was
approximately P472 and dismissing the case without prejudice
ISSUE: Whether or not the enforcement of a foreign judgment is
incapable of pecuniary estimation.

HELD: NO. (But belongs to "other actions not involving

property") petition is GRANTED.
There is an evident distinction between a foreign
judgment in an action in rem and one in personam. For an action
in rem, the foreign judgment is deemed conclusive upon the title
to the thing, while in an action in personam, the foreign
judgment is presumptive, and not conclusive, of a right as
between the parties and their successors in interest by a
subsequent title
However, in both cases, the foreign judgment is
susceptible to impeachment in our local courts on the grounds of
want of jurisdiction or notice to the party, collusion, fraud, or
clear mistake of law or fact. Thus, the party aggrieved by the
foreign judgment is entitled to defend against the enforcement
of such decision in the local forum. It is essential that there
should be an opportunity to challenge the foreign judgment, in
order for the court in this jurisdiction to properly determine its
efficacy even if such judgment has conclusive effect as in the
case of in rem actions, if only for the purpose of allowing the
losing party an opportunity to challenge the foreign judgment.
Consequently, the party attacking a foreign judgment has the
burden of overcoming the presumption of its validity. Absent
perhaps a statutory grant of jurisdiction to a quasi-judicial body,
the claim for enforcement of judgment must be brought before
the regular courts.
There are distinctions, nuanced but discernible,
between the cause of action arising from the enforcement of a
foreign judgment, and that arising from the facts or allegations
that occasioned the foreign judgment. They may pertain to the
same set of facts, but there is an essential difference in the
right-duty correlatives that are sought to be vindicated.
Extensive litigation is thus conducted on the facts and from there
the right to and amount of damages are assessed.
On the other hand, in an action to enforce a foreign
judgment, the matter left for proof is the foreign judgment itself,
and not the facts from which it prescinds. As stated in Section
48, Rule 39, the actionable issues are generally restricted to a
review of jurisdiction of the foreign court, the service of personal
notice, collusion, fraud, or mistake of fact or law. The limitation
on review is in consonance with a strong and pervasive policy in
all legal systems to limit repetitive litigation on claims and
issues. Otherwise known as the policy of preclusion, it seeks to
protect party expectations resulting from previous litigation, to
safeguard against the harassment of defendants, to insure that
the task of courts not be increased by never-ending litigation of
the same disputes, and in a larger sense to promote what Lord
Coke in the Ferrer's Case of 1599 stated to be the goal of all law:
"rest and quietness." If every judgment of a foreign court were
reviewable on the merits, the plaintiff would be forced back on

his/her original cause of action, rendering immaterial the

previously concluded litigation.

The rules of comity, utility and convenience of nations have established

a usage among civilized states by which final judgments of foreign courts of
competent jurisdiction are reciprocally respected and rendered efficacious
under certain conditions that may vary in different countries. This principle
was prominently affirmed in the leading American case of Hilton v. Guyot and
expressly recognized in our jurisprudence beginning with Ingenholl v. Walter
E. Olsen & Co. The conditions required by the Philippines for recognition and
enforcement of a foreign judgment were originally contained in Section 311
of the Code of Civil Procedure, which was taken from the California Code of
Civil Procedure which, in turn, was derived from the California Act of March
11, 1872. Remarkably, the procedural rule now outlined in Section 48, Rule
39 of the Rules of Civil Procedure has remained unchanged down to the last
word in nearly a century. Section 48 states:
SEC. 48. Effect of foreign judgments. The effect of a judgment of
a tribunal of a foreign country, having jurisdiction to pronounce
the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is
conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title;
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
It is clear then that it is usually necessary for an action to be filed in
order to enforce a foreign judgment, even if such judgment has conclusive
effect as in the case of in rem actions, if only for the purpose of allowing the
losing party an opportunity to challenge the foreign judgment, and in order
for the court to properly determine its efficacy. Consequently, the party
attacking a foreign judgment has the burden of overcoming the presumption
of its validity. The rules are silent as to what initiatory procedure must be
undertaken in order to enforce a foreign judgment in the Philippines. But
there is no question that the filing of a civil complaint is an appropriate
measure for such purpose. A civil action is one by which a party sues another
for the enforcement or protection of a right, and clearly an action to enforce
a foreign judgment is in essence a vindication of a right prescinding either
from a conclusive judgment upon title or the presumptive evidence of a
right. Absent perhaps a statutory grant of jurisdiction to a quasi-judicial
body, the claim for enforcement of judgment must be brought before the
regular courts.
There have been attempts to codify through treaties or multilateral
agreements the standards for the recognition and enforcement of foreign
judgments, but these have not borne fruition. The members of the European
Common Market accede to the Judgments Convention, signed in 1978, which
eliminates as to participating countries all of such obstacles to recognition
such as reciprocity and rvision au fond. The most ambitious of these
attempts is the Convention on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters, prepared in 1966 by the Hague
Conference of International Law. While it has not received the ratifications

needed to have it take effect, it is recognized as representing current

scholarly thought on the topic. Neither the Philippines nor the United States
are signatories to the Convention.
Yet even if there is no unanimity as to the applicable theory behind the
recognition and enforcement of foreign judgments or a universal treaty
rendering it obligatory force, there is consensus that the viability of such
recognition and enforcement is essential.

VI.

PARTICULAR TORT PROBLEMS

A.

TORTURE UNDER INTERNATIONAL HUMANITARIAN LAW

Conflict of Law Issue: Whether foreign courts have jurisdiction to
entertain suits for acts of torture committed against political detainees
or prisoners in their home countries, in violation of international and
municipal law
Proposed Choice Law: May be prosecuted in foreign countries

A.1 Torture Under International Humanitarian Law

Torture has been regarded as a human right by virtue in many
international conventions. Some examples include:
Article 7 of the ICCPR: No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment. In
particular, no one shall be subjected without his free consent to
medical or scientific experimentation.
Article 3 of the ECHR and Article 5 of the UDR: No one shall be
subjected to torture or to inhuman or degrading treatment or
punishment.
Article 7 of the Rome Statute: For the purpose of this Statute,
crime against humanity means any of the following acts when
committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack:
(f) Torture: Many acts, conducts or events may be viewed as
torture in certain circumstances, while they will not be viewed as
torture in some other situations. In fact, there is no single
definition existing under international law but most international
dispositions and bodies tend to agree on four constitutive
elements of torture which are:
1)
2)
3)
4)

Nature of the act;

Intention of the perpetrator;
Purpose; and
Involvement of public officials or assimilated

In any event, it should be recalled that usually in legal dispositions,

torture is linked with cruel, inhuman and degrading treatment or punishment
or ill-treatment. Torture is not an act in itself, or specific type of acts, but it is
the legal qualification of an event or behavior, based on the comprehensive
assessment of this event or behavior.
The ECHR has held in several cases that the prohibition against torture
is an absolute right and therefore overrides national law. The International
Criminal Tribunal has ascribed self-executing effect to the prohibition of
torture as far as the question of criminal responsibility is concerned. Relying
on these two pillars, namely human rights law and international criminal law,
the internationally established prohibition of torture must be accepted as
offering a legal basis for civil redress. A transformation into domestic law
may be desirable for reasons of certainty and clarity in the law.
Hence, whether the act in question constitutes an act of torture. This
issue is to be answered by international law itself.
The second issue is whether there exists individual liability for a
concrete violation of the prohibition of torture. This may be taken from
domestic law, if an equivalent norm exists. If not, one needs to determine
whether the norm at the international level can be applied automatically. 1
A.2 Torture under Philippine Law
Republic Act No. 9745, otherwise known as the Anti-Torture Act of
2009 declares that:
1)
It is the policy of the State to value the dignity of every
human person and guarantee full respect for human rights.
2)
To fully adhere to the principles and standards on the
absolute condemnation and prohibition of torture as provided for
in the 1987 Philippine Constitution; various international
instruments to which the Philippines is a State party such as, but
not limited to, the International Covenant on Civil and Political
Rights (ICCPR), the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT); and all
other relevant international human rights instruments to which
the Philippines is a signatory.
A.3 Application of Law
The general rule applied in Philippine jurisdiction is locus regit actum
wherein the essential elements of a crime and its penalties are generally
determined by the law where the crime was committed. However, the
following are the exceptions:
1) Crimes committed by state officials, diplomatic representatives and
officials of recognized international organizations based on the theory
of state immunity from suits.
2) Crimes committed on board a foreign vessel even if within the
territorial waters of the coastal state, as long as the effect of such
crime does not affect the peace and order of the coastal state.

3) Crimes which, although committed by Philippine nationals abroad

are punishable under the local law pursuant to the protective principle
of criminal jurisdiction.
A.4 Other Theories as to What Court Has Jurisdiction
1)
Territorial Theory - where the crime was committed.
2)
Nationality Theory - country which the criminal is a citizen or a
subject.
3)
Protective Theory - any State whose national interests may be
jeopardized has jurisdiction so that it may protect itself.
4)
Real Theory - any State whose penal code has been violated has
jurisdiction, where the crime was committed inside or outside its
territory.
5)
Cosmopolitan or Universality Theory - State where the criminal is
found or which has his custody has jurisdiction.
6)
Passive Personality Theory - the State of which the victim is a
citizen or subject has jurisdiction.2
In the Philippines, the Territoriality theory is generally followed. Hence,
the penal laws of the country apply only to crimes committed within the
country. However, an exception is found in Article 2 of the RPC which
stresses the protective theory.

B.

INJURY TO INTANGIBLE VALUES

B.1 Fraud or Misrepresentation

Conflict of Law Issue: When the defendants fraud and
misrepresentation and the defendants reliance occur in the same
state, no problem arises, but if they do not, what will be the choice of
law principle that will govern?
Proposed Choice of Law: Apply the Most Significant Relationship
Rule
An international treaty can be invalidated on the usual grounds for
invalidation of contracts. Article 49 of the Vienna Convention on the Law of
Treaties provides:
If a State has been induced to conclude a treaty by the
fraudulent conduct of another negotiating State, the State may
invoke the fraud as invalidating its consent to be bound by the
treaty.
Every person invested with appropriate full powers has the authority to
express the consent of the State which he represents to be bound by a given
treaty. If this authority has been made subject to a specific restriction which
has then not been observed by the representative, the State may invoke this
fact as invalidating its consent.
In the same way as States can conclude treaties, they can also
terminate them by mutual consent. Their consent can be expressed either in
the treaty itself which they had originally or, in particular through the

conclusion of a later treaty aiming at achieving this very purpose, or through

the conclusion of a treaty relating to the same subject-matter. The same
rules apply for the termination as well as for the suspension of treaties.3
Infringement of Intellectual Property
Republic Act No. 8293, otherwise known as the Intellectual Property
Code of the Philippines, enumerates the intellectual property rights protected
under the terms and conditions thereof, which consist of copyright and
related rights; trademarks and service marks; geographic indications;
industrial designs; patents; layout-designs of integrated circuits; and
projection of undisclosed information. 4
Section 3 of RA 8293 provides for the entitlement of alien nationals and
foreign corporations. It reads:
"Any person who is a national or who is domiciled or has a real
and effective industrial establishment in a country which is a
party to any convention, treaty or agreement relating to
intellectual property rights or the repression of unfair
competition, to which the Philippines is also a party, or extends
reciprocal rights to nationals of the Philippines by law, shall be
entitled to benefits to the extent necessary to give effect to any
provision of such convention, treaty or reciprocal law, in addition
to the rights which any owner of intellectual property is
otherwise entitled by this Act."
Generally speaking, the rights or privileges accorded to foreign
nationals in regard to trademarks, tradenames, service marks, names or
other marks of ownership may be classified into two categories, namely:
(1) Those provided by local laws in favor of nationals of countries
which, by their laws, grant similar rights or privileges to citizens of
the Philippines, which may be called reciprocity rights and
privileges; and
(2) Those provided by the Paris Convention and by Philippine laws, as
a result of the Philippines' adherence to said Convention, which
may be designated as convention rights and privileges. The
enjoyment of either of such rights is, however, subject to the
conditions and requirements of domestic or Philippine laws
B.2 Unfair Competition
Conflict of Law Issue: The defendants acts in one state and the
plaintiffs business in injured or the public, in general, was deceived in
another
Proposed Choice of Law: The place where the plaintiffs market with
respect to his customers and other competitors.
Infringement and unfair competition distinguished:
1) The infringement of trademark presupposes that the injured party
has a valid trademark as understood and provided for in law, while
in unfair competition no proprietary interest in the words, names, or

labels by which fraud is perpetrated is a pre-requisite to its

maintenance, and the aggrieved party need not have registered it
as a trademark.
2) In infringement, the cause generally takes no account of the actual
intent on the part of the infringer to mislead the public and defraud
the owner of the trademark. On the other hand, in unfair
competition, actual intent to deceive the public and defraud the
person injured is essential to the maintenance of the action.
3) The essential elements of unfair competition are, first, that the
person complained of shall have given his goods the general
appearance of the goods of the complaining party, either in the
wrapper of the packages in which they are obtained, or the devices
or words thereon or in any other features of their appearance which
would be likely to influence the purchasers to believe that the goods
offered are those of the complaining party; and second, that the
party complained of should have clothed the goods with such
appearance for the purpose of deceiving and defrauding the
complaining party of his legitimate trade.5
B.3 Alienation of Affections
Alienation of affection is a civil tort claim brought by a spouse who has
been deserted as a result of the actions of a third party. The deserted spouse
files a lawsuit against the third party for the loss of affection that was
provided through the marriage.
Under Philippine jurisdiction the applicable law is Article 26 of the New
Civil Code which provides that:
Every person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons. The
following and similar acts, though they may not constitute a
criminal offense, shall produce a cause of action for damages,
prevention and other relief:
xxx
(2) Meddling with or disturbing the private life or family
relations of another;
xxx
This article enhances human dignity and personality. The
remedies a party can have against a violation of this provision
include: (1) an action for damages; (2) an action for prevention;
and (3) any other relief.
Paragraph two of the article provides for a cause of action for
damages, prevention and other reliefs against persons who meddle with or
disturb the private life or family relations of another. This includes alienation
of the affections of the husband or the wife (Prosser, Torts, p. 916). Thus, a
girl who makes love to a married man, even if there be no carnal relations,
disturbs his family life, and damages may therefore be asked of her.

B.4 Defamation and Invasion of Privacy

Conflict of Law Issue: The publication of the libel or slander or
invasion of privacy occurred in a multi-state publication. The initial
question is whether the plaintiff has a single or multiple causes of
action.
Applicable Law: Apply the Most Significant Relationship Principle
Under this approach, the forum is directed to consider the contacts and
interests of each state involved and to apply the law of the state having the
most significant relationship with the parties and transaction in the light of
the particular issue before the court.
The significant contacts to be isolated in torts case are:
1) The place of injury
2) The place of conduct
3) The place of each partys residence and/or residence
4) The place where the relationship (if any) between the parties is
centered
These contacts are to be evaluated according to their relative
importance to the particular issue involved in the case, together with the
various general factors and policies discussed previously. However, the
second restatement retains the basic preference for the law of the place of
injury, unless other factors establish more significant relationship.
In using the most significant relationship, different courts may reach
different results by weighingthe contactsdifferently. For example, the
unpredictability of the approach is illustrated by the fact that the same court
reached precisely the opposite result in Dym v Gordon - the factual
difference being that the guest and the driver, although domiciled New York,
were attending school in Colorado. The court nevertheless concluded that
the guest-driver relationship arose in Colorado and applied its guest
statute.
DILWEG V. PHILLIPS (1964)
[ G.R. No. L-19596, October 30, 1964 ]
(Case)
On 7 February 1958 plaintiff Lavern R. Dilweg, a
nonresident American citizen, through counsel, instituted the
complaint at bar consisting of six causes of action against
defendants Robert O. Phillips, Inocentes G. Dineros, and Isaac S.
Eceta, claiming civil damages arising out of alleged libelous and
defamatory statements uttered and published in the Philippines
by the latter. On 24 February 1958 the first two named
defendants presented a motion to dismiss the complaint. Plaintiff
interposed an opposition thereto on 7 March 1958.
On 11 May 1961 the trial court issued an order stating that
the action is one for damages by reason of alleged libelous
statements uttered in the Philippines by the defendants against
the plaintiff. In other words, it is an action bared on a tort or act,
which under the law of the Philippines, is defined as a criminal

offense. At the time the said libelous statements were uttered,

the plaintiff was in Washington, D.C. where, he was and has
always been a resident. There is no allegation in the complaint
that plaintiff has ever been in the Philippines or has resided at
any time therein.
ISSUE: Whether or not our Philippine courts can rightfully refuse
to assume jurisdiction over a personal action instituted by a
nonresident alien who is not within the territorial jurisdiction of
our courts?
RULING: It is thus evident that, contrary to the conclusion
reached by the court below, it is not indispensable for a foreigner
to establish a residence, nor need he be physically present in a
state of which he is not a resident or citizen in order that he may
initiate or maintain a personal action against a resident or citizen
of that ether state for rights of action arising in, or for violations
of laws committed within, the territorial jurisdiction of that other
state. In this jurisdiction, no general law has come to our
knowledge or notice which restricts the right of nonresident
aliens to sue in our courts. It is not disputed that plaintiff's
causes of action arose in, and that the defendants are within, our
territorial jurisdiction. It is conceded by both parties that the law
under which the instant case falls is silent on the matter of the
right of an Alien to sue in our courts. On the other hand the
particular law evidently availed of by the plaintiff in filing his
complaint is Article 33 of the Civil Code of the Philippines, which
provides:
"In cases of defamation, fraud, and physical injuries, a civil
action for damages entirely separate and distinct from the
criminal action may be brought by the injured party. Such civil
action shall proceed independently of the criminal prosecution
and shall require only preponderance of evidence." The abovequoted provision of law does not make any distinction as to
whether the "injured party." who may maintain an action for
damages based on defamation, is a Filipino citizen or resident or
an alien. Wherefore, the order appealed from is set aside, and
the case is ordered remanded to the court below for further
proceeding consonant with this opinion.
C.

PRODUCTS LIABILITY

Choice of law questions often arise in products liability cases because

the product in question was produced in one state, purchased in another
state, and caused an injury in yet another state. Before a court can proceed
on adjudicating the merits, it needs to decide which law to apply, and in
many cases the courts choice of law decision may mean the difference
between dismissing the case on a certain motion and allowing the plaintiff to
proceed with discovery and trial. This presents a significant challenge to
courts, especially in mass tort actions arising from a long-term exposure to
harmful substances in many different states. In this area, more than in any
other, the court tends to apply whichever law is most favorable to the

plaintiff in order to facilitate compensation, while phrasing their decision in

terms of ontactsor interests approach.
Conflict of Law Issue: To which the defendant be subjected to?
Proposed Choice of Law: The law most favorable to the plaintiff, in
consonance with the Hague Convention on law applicable to Products
Liability
C.1 Traditional approach
The nature and extent of the products liability (including both breach of
warranty and tort liability) was determined by the place of wrong.
Place of wrong Where the product was manufactured,
sold or repaired, rather than the place of injury. The court of
forum applied its own law to a claim for injury sustained in an air
crash in a foreign state, because the airplane was manufactured
and repaired in the forum, hence wrongwas committed there.

C.2 Modern approach - The courts emphasize the interest in protecting the
consumer or user of any product in the stream of commerce of commerce,
and thus tend to look to the injured partys domicile as the state having the
most significant contacts and interests (at least where this facilitates
recovery).
Example: A New Hampshire court applied its own law to allow recovery
by a local resident for injuries caused by a defective power saw
manufactured by a Michigan defendant, purchased from a dealer in Georgia,
and delivered in Florida to plaintiff, who later brought it to his home in New
Hampshire.
C.3 Product liability of the foreign manufacturer (Basis of Conflicts
Tort):
1) The Negligence Theory- A manufacturer is liable for harm caused
by a defective product if he has failed to exercise reasonable care in its
manufacture, thus creating an unreasonable risk of harm to those
lawfully using it for the purpose for which it was manufactured. The
manufacturer is also liable to those whom the supplier should expect to
be in the vicinity of its probable use.
2) Strict Liability Theory - In some jurisdictions, courts have
abandoned classical bases of liability-tort (negligence) and contract
(breach of warranty)-in favor of a strict liability theory. Under this
theory, the plaintiff must prove that he has suffered injury due to the
normal use of a product that was defective when it left the
manufacturer's hands; he need not prove specific acts of negligence on
the part of the manufacturer. However, while there is agreement on
this general theory, differences exist in its application. For example,
courts differ as to the categories of persons who can be held strictly
liable: in New Jersey and California, vendors of realty have been held
strictly liable, whereas other jurisdictions' have rejected the extension
of strict liability to this class.

3) The Breach of Warranty Theory - An injured person may also

have a cause of action against a manufacturer for breach of an express
or implied warranty. Thus, in Baxter v. Ford Motor Co., a manufacturer
was held liable for breach of an express warranty where he had
advertised specific qualities of his product that were in fact not
present. Variations of this theory still exist among states concerning
such questions as what constitutes an express warranty and what kind
of damage is recoverable. Where there is no express warranty, the
traditional privity of contract concept has long barred direct recovery
by a consumer from a manufacturer, thereby causing courts to devise
a variety of constructions to circumvent this requirement.
C.4 Product Liability Case
1) Plaintiff purchases a foreign-made product;
2) He ingests (fungible) or uses (non-fungible) it in an unaltered
condition in accordance with the manufacturers printed instructions; and
3) He suffers an injury
Greenman vs. Yuba Power Products
59 Cal. 2d 57, 377 P.2d 897,27 Cal. Rptr. 697, 1963 Cal.
(Case)
The Plaintiff saw a Shopsmith combination power tool
demonstrated by a retailer and he studied a brochure prepared
by the manufacturer. His wife bought him a Shopsmith, and
Plaintiff bought necessary attachments to use the Shopsmith as
a lathe. After working with the lathe several times without
difficulty, it suddenly threw the piece of wood he was working
with out of the machine, striking him in the head inflicting
serious injuries. Approximately ten and one-half months later,
Plaintiff gave the retailer and the manufacturer written notice of
claimed breaches of warranties and filed a complaint alleging
said breaches and negligence.
Issue: Is Plaintiffs action based on representations contained in
the brochure barred against the manufacturer due to a failure to
give timely notice?
Held: No. Judgment affirmed.
* Plaintiff introduced substantial evidence from which to
conclude that his injuries were the result of defective design and
construction of the Shopsmith. However, the Defendant contends
that Plaintiff did not give it notice of a breach of warranty within
a reasonable time. The Civil Code provides that failure of the
buyer to give the seller notice of a breach of warranty within a
reasonable time precludes liability [Civ.Code Section: 1769].
However, this notice requirement is inappropriate for this Court
to adopt in an action by injured consumers against
manufacturers with whom they have not dealt. Because the
injured party is generally unaware of the business practice

justifying the rule, it would simply be an unfair booby-trap for

the unwary.
* Even if Plaintiffs claim for breach of warranty were barred, the
imposition of strict liability is appropriate in this case. From the
evidence, it can be shown (i) that the manufacturer placed a
product on the market; (ii) knowing that it is to be used without
inspection for defects; (iii) that proved to have a defect and (iv)
that caused an injury. To establish liability, it is sufficient that
Plaintiff was injured while using the Shopsmith in a way it was
intended to be used, as a result of a defect in design and
manufacture.
The Court in this case finds that an apparently applicable statute
will not bar recovery. Many of the products liability decisions tend to
insure the protection of the consumer over that of manufacturers.
D.

STATUTORY LIABILITY

Since liability is imposed by statute, the statute determines its nature

and extent. Thus, the time when the cause of action accrues, and the
conditions upon which the liability may be enforced, and the persons to
enforce it are to be determined by the statute as interpreted by the court of
last resort in the enacting state.
Conflict of Law Issue: Choice of Law problems also exist when
statutes provide for no-fault liability. This problem may arise when tortstate parties are injured in a no-fault state liability is imposed on the
tort-state driver, when the reverse is the case, when the cars each
occupied by the parties from both types of States collide, or when
different no-fault statutes are in issue
Proposed Choice of Law: Use Territorial Legislation or Domiciliary
Legislation.
D.1 The principle of No-Faulty Liability or Strict Liability
Strict liability is the legal responsibility for damages, or injury, even if
the person found strictly liable was not at fault or negligent. Strict liability
has been applied to certain activities in tort, such as holding an employer
absolutely liable for the torts of her employees.
D.2 Rule for bicycle-motor vehicle accidents
A form of strict liability has been supported in law in the Netherlands
since the early1990s for bicycle-motor vehicle accidents. In a nutshell, this
means that, in a collision between a car and a cyclist, the driver is deemed to
be liable to pay damages and his insurer (n.b. motor vehicle insurance is
mandatory in the Netherlands, while cyclist insurance is not) must pay the
full damages, as long as 1) the collision was unintentional (i.e. neither party,
motorist or cyclist, intentionally crashed into the other), and 2) the cyclist
was not in error in some way. Even if cyclist was in error, as long as the
collision was still unintentional, the motorist's insurance must still pay half of
the damages, though this does not apply if the cyclist is under 14 years of
age, in which case the motorist must pay full damages for unintentional
accidents with minors. If it can be proved that a cyclist intended to collide

with the car, then the cyclist must pay the damages (or his parents in the
case of a minor.)
Liability without fault in certain cases
Where death or permanent disablement of any person has resulted
from an accident arising out of the use of a motor vehicle or motor vehicles,
the owner of the vehicle shall, or, as the case may be, the owners of the
vehicles shall, jointly and severally, be liable to pay compensation in respect
of such death or disablement in accordance with the provisions of this
section.

VII.

BIBLIOGRAPHY

A.

BOOKS

1. Scott, Craig. Torture as Tort: Comparative Perspectives on the

Development of Transnational Human Rights Litigation. Oxford: Hart
Publishing, 2001. Pp. 731
2. Bernas, Joaquin. An Introduction to Public International Law.
3. Gehr, Walter. The International Law of Treaties. Scibd. 2009. Web. 8
September 2016.
4. Agpalo, Ruben. Conflict of Laws. Rex, 2004. Pp. 386.
5. Same. Pp. 410.
6. Gunther Kuhne,Choice of Law in Products Liability, 60 Cal. L. Rev. 1 (1972)
Vol. 60, No. 6 (Jul., 1947), pp. 941-952
Published by: The Harvard Law Review Association
7. Albert A. Ehrenzweig
The Yale Law Journal
Vol. 69, No. 4 (Mar., 1960), pp. 595-604
8. Edwin H. Abbot, Jr.
Harvard Law Review
Vol. 23, No. 1 (Nov., 1909), pp. 37-48
9. Conflict of Laws - Extraterritorial Effect of Statute, 30 Marq.L. Rev. 300
(1947).
10. Hinckley v. La Mesa R.V. Center, Inc., 158 Cal. App.3d 630, 205 Cal.
Rptr. 22 (1984)
B.

INTERNET SOURCES

http://www.uberdigests.info/2012/11/saudi-arabian-airlines-vs-court-ofappeals/
http://www.philippinelegalguide.com/2015/02/mijares-v-ranada.html
Electronic Press (bepress). http://ir.lawnet.fordham.edu/ulj