[No. L-11081.

April 30, 1958]

THE YEK TONG FIRE & MARINE INSURANCE Co.,
LTD., plaintiff and appellant, vs. AMERICAN PRESIDENT
LINES, INC., defendant and appellee.
Appeal from an order of the Court of First Instance of
Manila dismissing the complaint filed in this action on
the ground of prescription. Plaintiff-appellant claims
that defendant-appellee is not allowed to traverse the
allegations contained in the complaint but must proceed
upon the hypothetical assumption that all the
allegations therein are true. The rule requiring a party
moving for dismissal to admit or assume the allegations
of the complaint is applicable when the ground for the
motion to dismiss is that the complaint does not state
facts sufficient to constitute a cause of action (Rule 8,
section 1 [f]), and not when the ground is prescription of
action, which special defense is based not on facts
appearing in the complaint but on new matter not
disclosed in the complaint. The present motion to
dismiss traverses no allegation of the complaint; it sets
up as new matter that the goods in question arrived in
Manila on July 17, 1952, on which point the complaint
has avoided making a statement to avoid a fatal
objection. Plaintiff-appellant claims that no evidence
was submitted to support this allegation; but the same
does not appear to have been denied by plaintiffappellant. This failure to deny can be interpreted as
admission. Besides, courts can take judicial notice of the
fact that a vessel leaving Japan on June 18, 1952,
arrived Manila by July 17, 1952. Plaintiff-appellant
argues also that the court erred in not considering its
action suspended by the extrajudicial demand which
took place, according to defendant's own motion to
dismiss, on August 22, 1952. This Court has already
held in a case governed by the Carriage of Goods by Sea
Act that the general provisions of the Code of Civil
Procedure on prescription should not be made to apply.

(Chua Kuy vs. Everett Steamship Corp., 93 Phil., 207;

50 Off. Gaz., [1], 159.) In such a case the general
provisions of the new Civil Code (Article 1155) cannot be
made to apply, as such application would have the effect
of extending the one-year
1126

period of prescription fixed in the law. It is desirable that

matters affecting transportation of goods by sea be decided
in as short a time as possible; the application of the
provisions of Article 1155 of the new Civil Code would
unnecessarily extend the period and permit delays in the
settlement of questions affecting transportation, contrary
to the clear intent and purpose of the law.
Decision appealed from is affirmed, with costs. Labrador,
J., ponente.
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