CONFLICTS | Dec17| 1
G.R. No. 128803 September 25, 1998
ASIAVEST LIMITED, petitioner,
vs.
THE COURT OF APPEALS and ANTONIO HERAS, respondents.
DAVIDE, JR., J.:
In issue is the enforceability in the Philippines of a foreign judgment. The
antecedents are summarized in the 24 August 1990 Decision 1 of Branch 107
of the Regional Trial Court of Quezon City in Civil Case No. Q-52452; thus:
The plaintiff Asiavest Limited filed a complaint on December
3, 1987 against the defendant Antonio Heras praying that
said defendant be ordered to pay to the plaintiff the amounts
awarded by the Hong Kong Court Judgment dated December
28, 1984 and amended on April 13, 1987, to wit:
1) US$1,810,265.40 or its
equivalent in Hong Kong
currency at the time of
payment with legal interest
from December 28, 1984 until
fully paid;
2) interest on the sum of
US$1,500.00 at 9.875% per
annum from October 31,
1984 to December 28, 1984;
and
3) HK$905.00 at fixed cost in
the action; and
4) at least $80,000.00
representing attorney's fees,
litigation expenses and cost,
with interest thereon from the
date of the judgment until
fully paid.
On March 3, 1988, the defendant filed a Motion to Dismiss.
However, before the court could resolve the said motion, a
fire which partially razed the Quezon City Hall Building on
June 11, 1988 totally destroyed the office of this Court,
together with all its records, equipment and properties. On
July 26, 1988, the plaintiff, through counsel filed a Motion for
Reconstitution of Case Records. The Court, after allowing the
defendant to react thereto, granted the said Motion and
admitted the annexes attached thereto as the reconstituted
records of this case per Order dated September 6, 1988.
Thereafter, the Motion to Dismiss, the resolution of which had
been deferred; was denied by the Court in its Order of
October 4, 1988.
On October 19, 1988, defendant filed his Answer. The case
was then set for pre-trial conference. At the conference, the
parties could not arrive at any settlement. However, they
agreed on the following stipulations of facts:
1. The defendant admits the
existence of the judgment
dated December 28, 1984 as
well as its amendment dated
April 13, 1987, but not
necessarily the authenticity or
validity thereof;
2. The plaintiff is not doing
business and is not licensed
to do business in the
Philippines;
3. The residence of
defendant, Antonio Heras, is
New Manila, Quezon City.
The only issue for this Court to determine is, whether or not
the judgment of the Hong Kong Court has been repelled by

evidence of want of jurisdiction, want of notice to the party,
collusion, fraud or clear mistake of law or fact, such as to
overcome the presumption established in Section 50, Rule 39
of the Rules of Court in favor of foreign judgments.
In view of the admission by the defendant of the existence of
the aforementioned judgment (Pls. See Stipulations of Facts
in the Order dated January 5, 1989 as amended by the Order
of January 18, 1989), as well as the legal presumption in
favor of the plaintiff as provided for in paragraph (b); Sec.
50, (Ibid.), the plaintiff presented only documentary evidence
to show rendition, existence, and authentication of such
judgment by the proper officials concerned (Pls. See Exhibits
"A" thru "B", with their submarkings). In addition, the
plaintiff presented testimonial and documentary evidence to
show its entitlement to attorney's fees and other expenses of
litigation. . . . .
On the other hand, the defendant presented two witnesses,
namely. Fortunata dela Vega and Russel Warren Lousich.
The gist of Ms. dela Vega's testimony is to the effect that no
writ of summons or copy of a statement of claim of Asiavest
Limited was ever served in the office of the Navegante
Shipping Agency Limited and/or for Mr. Antonio Heras, and
that no service of the writ of summons was either served on
the defendant at his residence in New Manila, Quezon City.
Her knowledge is based on the fact that she was the personal
secretary of Mr. Heras during his JD Transit days up to the
latter part of 1972 when he shifted or diversified to shipping
business in Hong Kong; that she was in-charge of all his
letters and correspondence, business commitments,
undertakings, conferences and appointments, until October
1984 when Mr. Heras left Hong Kong for good; that she was
also the Officer-in-Charge or Office Manager of Navegante
Shipping Agency LTD, a Hong Kong registered and based
company acting as ships agent, up to and until the company
closed shop sometime in the first quarter of 1985, when
shipping business collapsed worldwide; that the said
company held office at 34-35 Connaught Road, Central Hong
Kong and later transferred to Carton House at Duddel Street,
CONFLICTS | Dec17| 2
Hong Kong, until the company closed shop in 1985; and that
she was certain of such facts because she held office at
Caxton House up to the first quarter of 1985.
Mr. Lousich was presented as an expert on the laws of Hong
Kong, and as a representative of the law office of the
defendant's counsel who made a verification of the record of
the case filed by the plaintiff in Hong Kong against the
defendant, as well as the procedure in serving Court
processes in Hong Kong.
In his affidavit (Exh. "2") which constitutes his direct
testimony, the said witness stated that:
The defendant was sued on the basis of his
personal guarantee of the obligations of
Compania Hermanos de Navegacion S.A.
There is no record that a writ of summons
was served on the person of the defendant in
Hong Kong, or that any such attempt at
service was made. Likewise, there is no
record that a copy of the judgment of the
High Court was furnished or served on the
defendant; anyway, it is not a legal
requirement to do so under Hong Kong laws;
a) The writ of summons or claim can be
served by the solicitor (lawyer) of the
claimant or plaintiff. In Hong Kong there are
no Court personnel who serve writs of
summons and/or most other processes.
b) If the writ of summons or claim (or
complaint) is not contested, the claimant or
the plaintiff is not required to present proof of
his claim or complaint nor present evidence
under oath of the claim in order to obtain a
Judgment.
c) There is no legal requirement that such a
Judgment or decision rendered by the Court

in Hong Kong [to] make a recitation of the
facts or the law upon which the claim is
based.
d) There is no necessity to furnish the
defendant with a copy of the Judgment or
decision rendered against him.
e) In an action based on a guarantee, there is
no established legal requirement or obligation
under Hong Kong laws that the creditor must
first bring proceedings against the principal
debtor. The creditor can immediately go
against the guarantor.
On cross examination, Mr. Lousich stated that before he was
commissioned by the law firm of the defendant's counsel as
an expert witness and to verify the records of the Hong Kong
case, he had been acting as counsel for the defendant in a
number of commercial matters; that there was an application
for service of summons upon the defendant outside the
jurisdiction of Hong Kong; that there was an order of the
Court authorizing service upon Heras outside of Hong Kong,
particularly in Manila or any other place in the Philippines (p.
9, TSN, 2/14/90); that there must be adequate proof of
service of summons, otherwise the Hong Kong Court will
refuse to render judgment (p. 10, ibid); that the mere fact
that the Hong Kong Court rendered judgment, it can be
presumed that there was service of summons; that in this
case, it is not just a presumption because there was an
affidavit stating that service was effected in [sic] a particular
man here in Manila; that such affidavit was filed by one Jose
R. Fernandez of the firm Sycip Salazar on the 21st of
December 1984, and stated in essence that "on Friday, the
23rd of November 1984 he served the 4th defendant at No. 6
First Street, Quezon City by leaving it at that address with Mr.
Dionisio Lopez, the son-in-law of the 4th defendant the copy
of the writ and Mr. Lopez informed me and I barely believed
that he would bring the said writ to the attention of the 4th
defendant" (pp. 11-12, ibid.); that upon filing of that
affidavit, the Court was asked and granted judgment against
CONFLICTS | Dec17| 3
the 4th defendant; and that if the summons or claim is not
contested, the claimant of the plaintiff is not required to
present proof of his claim or complaint or present evidence
under oath of the claim in order to obtain judgment; and that
such judgment can be enforced in the same manner as a
judgment rendered after full hearing.
The trial court held that since the Hong Kong court judgment had been duly
proved, it is a presumptive evidence of a right as between the parties; hence,
the party impugning it had the burden to prove want of jurisdiction over his
person. HERAS failed to discharge that burden. He did not testify to state
categorically and under oath that he never received summons. Even his own
witness Lousich admitted that HERAS was served with summons in his
Quezon City residence. As to De la Vega's testimony regarding non-service of
summons, the same was hearsay and had no probative value.
As to HERAS' contention that the Hong Kong court judgment violated the
Constitution and the procedural laws of the Philippines because it contained
no statements of the facts and the law on which it was based, the trial court
ruled that since the issue relate to procedural matters, the law of the
forum, i.e., Hong Kong laws, should govern. As testified by the expert
witness Lousich, such legalities were not required under Hong Kong laws. The
trial Court also debunked HERAS' contention that the principle of excussion
under Article 2058 of the Civil Code of the Philippines was violated. It
declared that matters of substance are subject to the law of the place where
the transaction occurred; in this case, Hong Kong laws must govern.
The trial court concluded that the Hong Kong court judgment should be
recognized and given effect in this jurisdiction for failure of HERAS to
overcome the legal presumption in favor of the foreign judgment. It then
decreed; thus:
WHEREFORE, judgment is hereby rendered ordering
defendant to pay to the plaintiff the following sums or their
equivalents in Philippine currency at the time of payment:
US$1,810,265.40 plus interest on the sum of
US$1,500,000.00 at 9.875% per annum from October 31,
1984 to December 28, 1984, and HK$905 as fixed cost, with
legal interests on the aggregate amount from December 28,
1984, and to pay attorney's fees in the sum of P80,000.00.

ASIAVEST moved for the reconsideration of the decision. It sought an award
of judicial costs and an increase in attorney's fees in the amount of
US$19,346.45 with interest until full payment of the said obligations. On the
other hand, HERAS no longer opposed the motion and instead appealed the
decision to the Court of Appeals, which docketed the appeal as CA-G.R. CV
No. 29513.
In its order 2 of 2 November 1990, the trial court granted ASIAVEST's motion
for reconsideration by increasing the award of attorney's fees to
"US$19,345.65 OR ITS EQUIVALENT IN PHILIPPINE CURRENCY, AND TO PAY
THE COSTS OF THIS SUIT," provided that ASIAVEST would pay the
corresponding filing fees for the increase. ASIAVEST appealed the order
requiring prior payment of filing fees. However, it later withdrew its appeal
and paid the additional filing fees.
On 3 April 1997, the Court of Appeals rendered its decision 3 reversing the
decision of the trial court and dismissing ASIAVEST's complaint without
prejudice. It underscored the fact that a foreign judgment does not of itself
have any extraterritorial application. For it to be given effect, the foreign
tribunal should have acquired jurisdiction over the person and the subject
matter. If such tribunal has not acquired jurisdiction, its judgment is void.
The Court of Appeals agreed with the trial court that matters of remedy and
procedure, such as those relating to service of summons upon the defendant
are governed by the lex fori, which was, in this case, the law of Hong Kong.
Relative thereto, it gave weight to Lousich's testimony that under the Hong
Kong law, the substituted service of summons upon HERAS effected in the
Philippines by the clerk of Sycip Salazar Hernandez & Gatmaitan firm would
be valid provided that it was done in accordance with Philippine laws. It then
stressed that where the action is in personam and the defendant is in the
Philippines, the summons should be personally served on the defendant
pursuant to Section 7, Rule 14 of the Rules of Court. 4 Substituted service
may only be availed of where the defendant cannot be promptly served in
person, the fact of impossibility of personal service should be explained in the
proof of service. It also found as persuasive HERAS' argument that instead of
directly using the clerk of the Sycip Salazar Hernandez & Gatmaitan law
office, who was not authorized by the judge of the court issuing the
summons, ASIAVEST should have asked for leave of the local courts to have
the foreign summons served by the sheriff or other court officer of the place
where service was to be made, or for special reasons by any person
authorized by the judge.
CONFLICTS | Dec17| 4
The Court of Appeals agreed with HERAS that "notice sent outside the state
to a non-resident is unavailing to give jurisdiction in an action against him
personally for money recovery." Summons should have been personally
served on HERAS in Hong Kong, for, as claimed by ASIAVEST, HERAS was
physically present in Hong Kong for nearly 14 years. Since there was not
even an attempt to serve summons on HERAS in Hong Kong, the Hong Kong
Supreme Court did not acquire jurisdiction over HERAS. Nonetheless it did
not totally foreclose the claim of ASIAVEST; thus:
While We are not fully convinced that [HERAS] has a
meritorious defense against [ASIAVEST's] claims or that
[HERAS] ought to be absolved of any liability, nevertheless, in
view of the foregoing discussion, there is a need to deviate
front the findings of the lower court in the interest of justice
and fair play. This, however, is without prejudice to whatever
action [ASIAVEST] might deem proper in order to enforce its
claims against [HERAS].
Finally, the Court of Appeals also agreed with HERAS that it was necessary
that evidence supporting the validity of the foreign judgment be submitted,
and that our courts are not bound to give effect to foreign judgments which
contravene our laws and the principle of sound morality and public policy.
ASIAVEST forthwith filed the instant petition alleging that the Court of
Appeals erred in ruling that
I.
. . . IT WAS NECESSARY FOR [ASIAVEST] TO PRESENT
EVIDENCE "SUPPORTING THE VALIDITY OF THE JUDGMENT";
II.
. . . THE SERVICE OF SUMMONS ON [HERAS] WAS
DEFECTIVE UNDER PHILIPPINES LAW;
III.
. . . SUMMONS SHOULD HAVE BEEN PERSONALLY SERVED
ON HERAS IN HONG KONG;

IV.
. . . THE HONG KONG SUMMONS SHOULD HAVE BEEN
SERVED WITH LEAVE OF PHILIPPINE COURTS;
V.
. . . THE FOREIGN JUDGMENT "CONTRAVENES PHILIPPINE
LAWS, THE PRINCIPLES OF SOUND MORALITY, AND THE
PUBLIC POLICY OF THE PHILIPPINES.
Being interrelated, we shall take up together the assigned errors.
Under paragraph (b) of Section 50, Rule 39 of the Rules of Court, 5 which was
the governing law at the time this case was decided by the trial court and
respondent Court of Appeals, a foreign judgment against a person rendered
by a court having jurisdiction to pronounce the judgment is presumptive
evidence of a right as between the parties and their successors in interest by
the subsequent title. However, the judgment may be repelled by evidence of
want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
Also, Section 3(n) of Rule 131 of the New Rules of Evidence provides that in
the absence of proof to the contrary, a court, or judge acting as such,
whether in the Philippines or elsewhere, is presumed to have acted in the
lawful exercise of jurisdiction.
Hence, once the authenticity of the foreign judgment is proved, the burden to
repel it on grounds provided for in paragraph (b) of Section 50, Rule 39 of
the Rules of Court is on the party challenging the foreign judgment HERAS
in this case.
At the pre-trial conference, HERAS admitted the existence of the Hong Kong
judgment. On the other hand, ASIAVEST presented evidence to prove
rendition, existence, and authentication of the judgment by the proper
officials. The judgment is thus presumed to be valid and binding in the
country from which it comes, until the contrary is shown. 6 Consequently, the
first ground relied upon by ASIAVEST has merit. The presumption of validity
accorded foreign judgment would be rendered meaningless were the party
seeking to enforce it be required to first establish its validity.
CONFLICTS | Dec17| 5
The main argument raised against the Hong Kong judgment is that the Hong
Kong Supreme Court did not acquire jurisdiction over the person of HERAS.
This involves the issue of whether summons was properly and validly served
on HERAS. It is settled that matters of remedy and procedure such as those
relating to the service of process upon the defendant are governed by the lex
fori or the law of the forum, 7 i.e., the law of Hong Kong in this case. HERAS
insisted that according to his witness Mr. Lousich, who was presented as an
expert on Hong Kong laws, there was no valid service of summons on him.
In his counter-affidavit, 8 which served as his direct testimony per agreement
of the parties, 9 Lousich declared that the record of the Hong Kong case failed
to show that a writ of summons was served upon HERAS in Hong Kong or
that any such attempt was made. Neither did the record show that a copy of
the judgment of the court was served on HERAS. He stated further that
under Hong Kong laws (a) a writ of summons could be served by the solicitor
of the claimant or plaintiff; and (b) where the said writ or claim was not
contested, the claimant or plaintiff was not required to present proof under
oath in order to obtain judgment.
On cross-examination by counsel for ASIAVEST, Lousich' testified that the
Hong Kong court authorized service of summons on HERAS outside of its
jurisdiction, particularly in the Philippines. He admitted also the existence of
an affidavit of one Jose R. Fernandez of the Sycip Salazar Hernandez &
Gatmaitan law firm stating that he (Fernandez) served summons on HERAS
on 13 November 1984 at No. 6, 1st St., Quezon City, by leaving a copy with
HERAS's son-in-law Dionisio Lopez. 10 On redirect examination, Lousich
declared that such service of summons would be valid under Hong Kong laws
provided that it was in accordance with Philippine laws. 11
We note that there was no objection on the part of ASIAVEST on the
qualification of Mr. Lousich as an expert on the Hong Kong law. Under
Sections 24 and 25, Rule 132 of the New Rules of Evidence, the record of
public documents of a sovereign authority, tribunal, official body, or public
officer may be proved by (1) an official publication thereof or (2) a copy
attested by the officer having the legal custody thereof, which must be
accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. The certificate may be issued by a
secretary of the embassy or legation, consul general, consul, vice consul, or
consular agent, or any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office. The attestation must state, in

substance, that the copy is a correct copy of the original, or a specific part
thereof, as the case may be, and must be under the official seal of the
attesting officer.
Nevertheless, the testimony of an expert witness may be allowed to prove a
foreign law. An authority 12 on private international law thus noted:
Although it is desirable that foreign law be proved in
accordance with the above rule, however, the Supreme Court
held in the case of Willamette Iron and Steel Works v.
Muzzal, 13 that Section 41, Rule 123 (Section 25, Rule 132 of
the Revised Rules of Court) does not exclude the presentation
of other competent evidence to prove the existence of a
foreign law. In that case, the Supreme Court considered the
testimony under oath of an attorney-at-law of San Francisco,
California, who quoted verbatim a section of California Civil
Code and who stated that the same was in force at the time
the obligations were contracted, as sufficient evidence to
establish the existence of said law. Accordingly, in line with
this view, the Supreme Court in theCollector of Internal
Revenue v. Fisher et al., 14 upheld the Tax Court in
considering the pertinent law of California as proved by the
respondents' witness. In that case, the counsel for
respondent "testified that as an active member of the
California Bar since 1951, he is familiar with the revenue and
taxation laws of the State of California. When asked by the
lower court to state the pertinent California law as regards
exemption of intangible personal properties, the witness cited
Article 4, Sec. 13851 (a) & (b) of the California Internal and
Revenue Code as published in Derring's California Code, a
publication of Bancroft-Whitney Co., Inc. And as part of his
testimony, a full quotation of the cited section was offered in
evidence by respondents." Likewise, in several naturalization
cases, it was held by the Court that evidence of the law of a
foreign country on reciprocity regarding the acquisition of
citizenship, although not meeting the prescribed rule of
practice, may be allowed and used as basis for favorable
action, if, in the light of all the circumstances, the Court is
"satisfied of the authenticity of the written proof
offered." 15 Thus, in, a number of decisions, mere
authentication of the Chinese Naturalization Law by the
CONFLICTS | Dec17| 6
Chinese Consulate General of Manila was held to be
competent proof of that law. 16
There is, however, nothing in the testimony of Mr. Lousich that touched on
the specific law of Hong Kong in respect of service of summons either in
actions in rem or in personam, and where the defendant is either a resident
or nonresident of Hong Kong. In view of the absence of proof of the Hong
Kong law on this particular issue, the presumption of identity or similarity or
the so-called processual presumption shall come into play. It will thus be
presumed that the Hong Kong law on the matter is similar to the Philippine
law. 17
As stated in Valmonte vs. Court of Appeals, 18 it will be helpful to determine
first whether the action is in personam, in rem, or quasi in rem because the
rules on service of summons under Rule 14 of the Rules of Court of the
Philippines apply according to the nature of the action.
An action in personam is an action against a person on the basis of his
personal liability. An action in rem is an action against the thing itself instead
of against the person. 19 An action quasi in rem is one wherein an individual
is named as defendant and the purpose of the proceeding is to subject his
interest therein to the obligation or lien burdening the property. 20
In an action in personam, jurisdiction over the person of the defendant is
necessary for the court to validly try and decide the case. Jurisdiction over
the person of a resident defendant who does not voluntarily appear in court
can be acquired by personal service of summons as provided under Section
7, Rule 14 of the Rules of Court. If he cannot be personally served with
summons within a reasonable time, substituted service may be made in
accordance with Section 8 of said Rule. If he is temporarily out of the
country, any of the following modes of service may be resorted to: (1)
substituted service set forth in Section 8; 21 (2) personal service outside the
country, with leave of court; (3) service by publication, also with leave of
court; 22 or (4) any other manner the court may deem sufficient. 23
However, in an action in personam wherein the defendant is a non-
resident who does not voluntarily submit himself to the authority of the
court, personal service of summons within the state is essential to the
acquisition of jurisdiction over her person. 24 This method of service is
possible if such defendant is physically present in the country. If he is not
found therein, the court cannot acquire jurisdiction over his person and

therefore cannot validly try and decide the case against him. 25 An exception
was laid down in Gemperle v. Schenker 26 wherein a non-resident was served
with summons through his wife, who was a resident of the Philippines and
who was his representatives and attorney-in-fact in a prior civil case filed by
him; moreover, the second case was a mere offshoot of the first case.
On the other hand, in a proceeding in rem or quasi in rem, jurisdiction over
the person of the defendant is not a prerequisite to confer jurisdiction on the
court provided that the court acquires jurisdiction over the res. Nonetheless
summons must be served upon the defendant not for the purpose of vesting
the court with jurisdiction but merely for satisfying the due process
requirements. 27 Thus, where the defendant is a non-resident who is not
found in the Philippines and (1) the action affects the personal status of the
plaintiff; (2) the action relates to, or the subject matter of which is property
in the Philippines in which the defendant has or claims a lien or interest; (3)
the action seeks the exclusion of the defendant from any interest in the
property located in the Philippines; or (4) the property of the defendant has
been attached in the Philippines service of summons may be effected by
(a) personal service out of the country, with leave of court; (b) publication,
also with leave of court, or (c) any other manner the court may deem
sufficient. 28
In the case at bar, the action filed in Hong Kong against HERAS was in
personam, since it was based on his personal guarantee of the obligation of
the principal debtor. Before we can apply the foregoing rules, we must
determine first whether HERAS was a resident of Hong Kong.
Fortunata de la Vega, HERAS's personal secretary in Hong Kong since 1972
until 1985, 29 testified that HERAS was the President and part owner of a
shipping company in Hong Kong during all those times that she served as his
secretary. He had in his employ a staff of twelve. 30 He had "business
commitments, undertakings, conferences, and appointments until October
1984 when [he] left Hong Kong for good," 31 HERAS's other witness, Russel
Warren Lousich, testified that he had acted as counsel for HERAS "for a
number of commercial matters." 32 ASIAVEST then infers that HERAS was a
resident of Hong Kong because he maintained a business there.
It must be noted that in his Motion to Dismiss, 33 as well as in his
Answer 34 to ASIAVEST's complaint for the enforcement of the Hong Kong
court judgment, HERAS maintained that the Hong Kong court did not have
jurisdiction over him because the fundamental rule is that jurisdiction in
CONFLICTS | Dec17| 7
personam over non-resident defendants, so as to sustain a money judgment,
must be based upon personal service of summons within the state which
renders the judgment. 35
For its part, ASIAVEST, in its Opposition to the Motion to
Dismiss 36 contended: "The question of Hong Kong court's 'want of
jurisdiction' is therefore a triable issue if it is to be pleaded by the defendant
to 'repel' the foreign judgment. Facts showing jurisdictional lack (e.g. that
the Hong Kong suit was in personam, that defendant was not a resident of
Hong Kong when the suit was filed or that he did not voluntarily submit to
the Hong Kong court's jurisdiction) should be alleged and proved by the
defendant." 37
In his Reply (to the Opposition to Motion to Dismiss), 38 HERAS argued that
the lack of jurisdiction over his person was corroborated by ASIAVEST's
allegation in the complaint that he "has his residence at No. 6, 1st St., New
Manila, Quezon City, Philippines." He then concluded that such judicial
admission amounted to evidence that he was and is not a resident of Hong
Kong.
Significantly, in the pre-trial conference, the parties came up with stipulations
of facts, among which was that "the residence of defendant, Antonio Heras, is
New Manila, Quezon City." 39
We note that the residence of HERAS insofar as the action for the
enforcement of the Hong Kong court judgment is concerned, was never in
issue. He never challenged the service of summons on him through a security
guard in his Quezon City residence and through a lawyer in his office in that
city. In his Motion to Dismiss, he did not question the jurisdiction of the
Philippine court over his person on the ground of invalid service of summons.
What was in issue was his residence as far as the Hong Kong suit was
concerned. We therefore conclude that the stipulated fact that HERAS "is a
resident of New Manila, Quezon City, Philippines" refers to his residence at
the time jurisdiction over his person was being sought by the Hong Kong
court. With that stipulation of fact, ASIAVEST cannot now claim that HERAS
was a resident of Hong Kong at the time.
Accordingly, since HERAS was not a resident of Hong Kong and the action
against him was, indisputably, one in personam, summons should have been
personally served on him in Hong Kong. The extraterritorial service in the
Philippines was therefore invalid and did not confer on the Hong Kong court
 CONFLICTS | Dec17| 8

jurisdiction over his person. It follows that the Hong Kong court judgment SO ORDERED.
cannot be given force and effect here in the Philippines for having been
rendered without jurisdiction.

Even assuming that HERAS was formerly a resident of Hong Kong, he was no
longer so in November 1984 when the extraterritorial service of summons
was attempted to be made on him. As declared by his secretary, which
statement was not disputed by ASIAVEST, HERAS left Hong Kong in October
1984 "for good." 40 His absence in Hong Kong must have been the reason
why summons was not served on him therein; thus, ASIAVEST was
constrained to apply for leave to effect service in the Philippines, and upon
obtaining a favorable action on the matter, it commissioned the Sycip Salazar
Hernandez & Gatmaitan law firm to serve the summons here in the
Philippines.

In Brown v. Brown, 41 the defendant was previously a resident of the

Philippines. Several days after a criminal action for concubinage was filed
against him, he abandoned the Philippines. Later, a proceeding quasi in
rem was instituted against him. Summons in the latter case was served on
the defendant's attorney-in-fact at the latter's address. The Court held that
under the facts of the case, it could not be said that the defendant was "still
a resident of the Philippines because he ha[d] escaped to his country and G.R. No. 119602 October 6, 2000
[was] therefore an absentee in the Philippines." As such, he should have
been "summoned in the same manner as one who does not reside and is not WILDVALLEY SHIPPING CO., LTD. petitioner,
found in the Philippines." vs.
COURT OF APPEALS and PHILIPPINE PRESIDENT LINES
Similarly, HERAS, who was also an absentee, should have been served with INC., respondents.
summons in the same manner as a non-resident not found in Hong Kong.
Section 17, Rule 14 of the Rules of Court providing for extraterritorial service DECISION
will not apply because the suit against him was in personam. Neither can we
apply Section 18, which allows extraterritorial service on a resident defendant BUENA, J.:
who is temporarily absent from the country, because even if HERAS be
considered as a resident of Hong Kong, the undisputed fact remains that he This is a petition for review on certiorari seeking to set aside the decision of
left Hong Kong not only "temporarily" but "for good." the Court of Appeals which reversed the decision of the lower court in CA-
G.R. CV No. 36821, entitled "Wildvalley Shipping Co., Ltd., plaintiff-appellant,
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered DENYING versus Philippine President Lines, Inc., defendant-appellant."
the petition in this case and AFFIRMING the assailed judgment of the Court of
Appeals in CA-G.R. CV No. 29513. The antecedent facts of the case are as follows:

No costs.

Sometime in February 1988, the Philippine Roxas, a vessel owned by
Philippine President Lines, Inc., private respondent herein, arrived in Puerto
Ordaz, Venezuela, to load iron ore. Upon the completion of the loading and
when the vessel was ready to leave port, Mr. Ezzar del Valle Solarzano
Vasquez, an official pilot of Venezuela, was designated by the harbour
authorities in Puerto Ordaz to navigate the Philippine Roxas through the
Orinoco River.1 He was asked to pilot the said vessel on February 11,
19882 boarding it that night at 11:00 p.m.3
The master (captain) of the Philippine Roxas, Captain Nicandro Colon, was at
the bridge together with the pilot (Vasquez), the vessel's third mate (then
the officer on watch), and a helmsman when the vessel left the port 4 at 1:40
a.m. on February 12, 1988.5 Captain Colon left the bridge when the vessel
was under way.6
The Philippine Roxas experienced some vibrations when it entered the San
Roque Channel at mile 172. 7 The vessel proceeded on its way, with the pilot
assuring the watch officer that the vibration was a result of the shallowness
of the channel.8
Between mile 158 and 157, the vessel again experienced some
vibrations.9 These occurred at 4:12 a.m.10 It was then that the watch officer
called the master to the bridge.11
The master (captain) checked the position of the vessel 12 and verified that it
was in the centre of the channel. 13He then went to confirm, or set down, the
position of the vessel on the chart.14 He ordered Simplicio A. Monis, Chief
Officer of the President Roxas, to check all the double bottom tanks. 15
At around 4:35 a.m., the Philippine Roxas ran aground in the Orinoco
River,16 thus obstructing the ingress and egress of vessels.
As a result of the blockage, the Malandrinon, a vessel owned by herein
petitioner Wildvalley Shipping Company, Ltd., was unable to sail out of Puerto
Ordaz on that day.
Subsequently, Wildvalley Shipping Company, Ltd. filed a suit with the
Regional Trial Court of Manila, Branch III against Philippine President Lines,
Inc. and Pioneer Insurance Company (the underwriter/insurer of Philippine
Roxas) for damages in the form of unearned profits, and interest thereon
CONFLICTS | Dec17| 9
amounting to US $400,000.00 plus attorney's fees, costs, and expenses of
litigation. The complaint against Pioneer Insurance Company was dismissed
in an Order dated November 7, 1988.17
At the pre-trial conference, the parties agreed on the following facts:
"1. The jurisdictional facts, as specified in their respective pleadings;
"2. That defendant PPL was the owner of the vessel Philippine Roxas
at the time of the incident;
"3. That defendant Pioneer Insurance was the insurance underwriter
for defendant PPL;
"4. That plaintiff Wildvalley Shipping Co., Inc. is the owner of the
vessel Malandrinon, whose passage was obstructed by the vessel
Philippine Roxas at Puerto Ordaz, Venezuela, as specified in par. 4,
page 2 of the complaint;
"5. That on February 12, 1988, while the Philippine Roxas was
navigating the channel at Puerto Ordaz, the said vessel grounded and
as a result, obstructed navigation at the channel;
"6. That the Orinoco River in Puerto Ordaz is a compulsory pilotage
channel;
"7. That at the time of the incident, the vessel, Philippine Roxas, was
under the command of the pilot Ezzar Solarzano, assigned by the
government thereat, but plaintiff claims that it is under the command
of the master;
"8. The plaintiff filed a case in Middleburg, Holland which is related to
the present case;
"9. The plaintiff caused the arrest of the Philippine Collier, a vessel
owned by the defendant PPL;
"10. The Orinoco River is 150 miles long and it takes approximately
12 hours to navigate out of the said river;

"11. That no security for the plaintiff's claim was given until after the
Philippine Collier was arrested; and
"12. That a letter of guarantee, dated 12-May-88 was issued by the
Steamship Mutual Underwriters Ltd."18
The trial court rendered its decision on October 16, 1991 in favor of the
petitioner, Wildvalley Shipping Co., Ltd. The dispositive portion thereof reads
as follows:
"WHEREFORE, judgment is rendered for the plaintiff, ordering defendant
Philippine President Lines, Inc. to pay to the plaintiff the sum of U.S.
$259,243.43, as actual and compensatory damages, and U.S. $162,031.53,
as expenses incurred abroad for its foreign lawyers, plus additional sum of
U.S. $22,000.00, as and for attorney's fees of plaintiff's local lawyer, and to
pay the cost of this suit.
"Defendant's counterclaim is dismissed for lack of merit.
"SO ORDERED."19
Both parties appealed: the petitioner appealing the non-award of interest
with the private respondent questioning the decision on the merits of the
case.
After the requisite pleadings had been filed, the Court of Appeals came out
with its questioned decision dated June 14, 1994, 20 the dispositive portion of
which reads as follows:
"WHEREFORE, finding defendant-appellant's appeal to be meritorious,
judgment is hereby rendered reversing the Decision of the lower court.
Plaintiff-appellant's Complaint is dismissed and it is ordered to pay
defendant-appellant the amount of Three Hundred Twenty-three Thousand,
Forty-two Pesos and Fifty-three Centavos (P323,042.53) as and for attorney's
fees plus cost of suit. Plaintiff-appellant's appeal is DISMISSED.
"SO ORDERED."21
Petitioner filed a motion for reconsideration 22 but the same was denied for
lack of merit in the resolution dated March 29, 1995. 23
CONFLICTS | Dec17| 10
Hence, this petition.
The petitioner assigns the following errors to the court a quo:
1. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING
THAT UNDER PHILIPPINE LAW NO FAULT OR NEGLIGENCE CAN BE
ATTRIBUTED TO THE MASTER NOR THE OWNER OF THE "PHILIPPINE
ROXAS" FOR THE GROUNDING OF SAID VESSEL RESULTING IN THE
BLOCKAGE OF THE RIO ORINOCO;
2. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
REVERSING THE FINDINGS OF FACTS OF THE TRIAL COURT
CONTRARY TO EVIDENCE;
3. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING
THAT THE "PHILIPPINE ROXAS" IS SEAWORTHY;
4. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
DISREGARDING VENEZUELAN LAW DESPITE THE FACT THAT THE
SAME HAS BEEN SUBSTANTIALLY PROVED IN THE TRIAL COURT
WITHOUT ANY OBJECTION FROM PRIVATE RESPONDENT, AND
WHOSE OBJECTION WAS INTERPOSED BELATEDLY ON APPEAL;
5. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
AWARDING ATTORNEY'S FEES AND COSTS TO PRIVATE RESPONDENT
WITHOUT ANY FAIR OR REASONABLE BASIS WHATSOEVER;
6. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT
FINDING THAT PETITIONER'S CAUSE IS MERITORIOUS HENCE,
PETITIONER SHOULD BE ENTITLED TO ATTORNEY'S FEES, COSTS
AND INTEREST.
The petition is without merit.
The primary issue to be determined is whether or not Venezuelan law is
applicable to the case at bar.
It is well-settled that foreign laws do not prove themselves in our jurisdiction
and our courts are not authorized to take judicial notice of them. Like any
other fact, they must be alleged and proved.24

A distinction is to be made as to the manner of proving a written and an
unwritten law. The former falls under Section 24, Rule 132 of the Rules of
Court, as amended, the entire provision of which is quoted hereunder. Where
the foreign law sought to be proved is "unwritten," the oral testimony of
expert witnesses is admissible, as are printed and published books of reports
of decisions of the courts of the country concerned if proved to be commonly
admitted in such courts.25
Section 24 of Rule 132 of the Rules of Court, as amended, provides:
"Sec. 24. Proof of official record. -- The record of public documents referred
to in paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which the record is kept
is in a foreign country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, or consular agent or
by any officer in the foreign service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated by the seal of his
office." (Underscoring supplied)
The court has interpreted Section 25 (now Section 24) to include competent
evidence like the testimony of a witness to prove the existence of a written
foreign law.26
In the noted case of Willamette Iron & Steel Works vs. Muzzal, 27 it was
held that:
" Mr. Arthur W. Bolton, an attorney-at-law of San Francisco, California, since
the year 1918 under oath, quoted verbatim section 322 of the California Civil
Code and stated that said section was in force at the time the obligations of
defendant to the plaintiff were incurred, i.e. on November 5, 1928 and
December 22, 1928. This evidence sufficiently established the fact that the
section in question was the law of the State of California on the above dates.
A reading of sections 300 and 301 of our Code of Civil Procedure will
convince one that these sections do not exclude the presentation of other
competent evidence to prove the existence of a foreign law.
"`The foreign law is a matter of fact You ask the witness what the law is; he
may, from his recollection, or on producing and referring to books, say what
CONFLICTS | Dec17| 11
it is.' (Lord Campbell concurring in an opinion of Lord Chief Justice Denman in
a well-known English case where a witness was called upon to prove the
Roman laws of marriage and was permitted to testify, though he referred to a
book containing the decrees of the Council of Trent as controlling, Jones on
Evidence, Second Edition, Volume 4, pages 3148-3152.) x x x."
We do not dispute the competency of Capt. Oscar Leon Monzon, the Assistant
Harbor Master and Chief of Pilots at Puerto Ordaz, Venezuela, 28 to testify on
the existence of the Reglamento General de la Ley de Pilotaje(pilotage law of
Venezuela)29 and the Reglamento Para la Zona de Pilotaje N o 1 del
Orinoco (rules governing the navigation of the Orinoco River). Captain
Monzon has held the aforementioned posts for eight years. 30 As such he is in
charge of designating the pilots for maneuvering and navigating the Orinoco
River. He is also in charge of the documents that come into the office of the
harbour masters.31
Nevertheless, we take note that these written laws were not proven in the
manner provided by Section 24 of Rule 132 of the Rules of Court.
The Reglamento General de la Ley de Pilotaje was published in the Gaceta
Oficial32 of the Republic of Venezuela. A photocopy of the Gaceta Oficial was
presented in evidence as an official publication of the Republic of Venezuela.
The Reglamento Para la Zona de Pilotaje N o 1 del Orinoco is published in a
book issued by the Ministerio de Comunicaciones of Venezuela.33 Only a
photocopy of the said rules was likewise presented as evidence.
Both of these documents are considered in Philippine jurisprudence to be
public documents for they are the written official acts, or records of the
official acts of the sovereign authority, official bodies and tribunals, and public
officers of Venezuela.34
For a copy of a foreign public document to be admissible, the following
requisites are mandatory: (1) It must be attested by the officer having legal
custody of the records or by his deputy; and (2) It must be accompanied by
a certificate by a secretary of the embassy or legation, consul general,
consul, vice consular or consular agent or foreign service officer, and with the
seal of his office.35 The latter requirement is not a mere technicality but is
intended to justify the giving of full faith and credit to the genuineness of a
document in a foreign country.36

It is not enough that the Gaceta Oficial, or a book published by the Ministerio
de Comunicaciones of Venezuela, was presented as evidence with Captain
Monzon attesting it. It is also required by Section 24 of Rule 132 of the Rules
of Court that a certificate that Captain Monzon, who attested the documents,
is the officer who had legal custody of those records made by a secretary of
the embassy or legation, consul general, consul, vice consul or consular
agent or by any officer in the foreign service of the Philippines stationed in
Venezuela, and authenticated by the seal of his office accompanying the copy
of the public document. No such certificate could be found in the records of
the case.
With respect to proof of written laws, parol proof is objectionable, for the
written law itself is the best evidence. According to the weight of authority,
when a foreign statute is involved, the best evidence rule requires that it be
proved by a duly authenticated copy of the statute. 37
At this juncture, we have to point out that the Venezuelan law was not
pleaded before the lower court.
A foreign law is considered to be pleaded if there is an allegation in the
pleading about the existence of the foreign law, its import and legal
consequence on the event or transaction in issue. 38
A review of the Complaint39 revealed that it was never alleged or invoked
despite the fact that the grounding of the M/V Philippine Roxas occurred
within the territorial jurisdiction of Venezuela.
We reiterate that under the rules of private international law, a foreign law
must be properly pleaded and proved as a fact. In the absence of pleading
and proof, the laws of a foreign country, or state, will be presumed to be the
same as our own local or domestic law and this is known as processual
presumption.40
Having cleared this point, we now proceed to a thorough study of the errors
assigned by the petitioner.
Petitioner alleges that there was negligence on the part of the private
respondent that would warrant the award of damages.
CONFLICTS | Dec17| 12
There being no contractual obligation, the private respondent is obliged to
give only the diligence required of a good father of a family in accordance
with the provisions of Article 1173 of the New Civil Code, thus:
"Art. 1173. The fault or negligence of the obligor consists in the omission of
that diligence which is required by the nature of the obligation and
corresponds with the circumstances of the persons, of the time and of the
place. When negligence shows bad faith, the provisions of articles 1171 and
2201, paragraph 2, shall apply.
"If the law or contract does not state the diligence which is to be observed in
the performance, that which is expected of a good father of a family shall be
required."
The diligence of a good father of a family requires only that diligence which
an ordinary prudent man would exercise with regard to his own property.
This we have found private respondent to have exercised when the vessel
sailed only after the "main engine, machineries, and other auxiliaries" were
checked and found to be in good running condition; 41 when the master left a
competent officer, the officer on watch on the bridge with a pilot who is
experienced in navigating the Orinoco River; when the master ordered the
inspection of the vessel's double bottom tanks when the vibrations occurred
anew.42
The Philippine rules on pilotage, embodied in Philippine Ports Authority
Administrative Order No. 03-85, otherwise known as the Rules and
Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage
Fees in Philippine Ports enunciate the duties and responsibilities of a master
of a vessel and its pilot, among other things.
The pertinent provisions of the said administrative order governing these
persons are quoted hereunder:
"Sec. 11. Control of Vessels and Liability for Damage. -- On compulsory
pilotage grounds, the Harbor Pilot providing the service to a vessel shall be
responsible for the damage caused to a vessel or to life and property at ports
due to his negligence or fault. He can be absolved from liability if the accident
is caused by force majeure or natural calamities provided he has exercised
prudence and extra diligence to prevent or minimize the damage.

"The Master shall retain overall command of the vessel even on pilotage
grounds whereby he can countermand or overrule the order or command of
the Harbor Pilot on board. In such event, any damage caused to a vessel or
to life and property at ports by reason of the fault or negligence of the Master
shall be the responsibility and liability of the registered owner of the vessel
concerned without prejudice to recourse against said Master.
"Such liability of the owner or Master of the vessel or its pilots shall be
determined by competent authority in appropriate proceedings in the light of
the facts and circumstances of each particular case.
"x x x
"Sec. 32. Duties and Responsibilities of the Pilots or Pilots Association. -- The
duties and responsibilities of the Harbor Pilot shall be as follows:
"x x x
"f) A pilot shall be held responsible for the direction of a vessel from the time
he assumes his work as a pilot thereof until he leaves it anchored or berthed
safely; Provided, however, that his responsibility shall cease at the moment
the Master neglects or refuses to carry out his order."
The Code of Commerce likewise provides for the obligations expected of a
captain of a vessel, to wit:
"Art. 612. The following obligations shall be inherent in the office of captain:
"x x x
"7. To be on deck on reaching land and to take command on entering and
leaving ports, canals, roadsteads, and rivers, unless there is a pilot on board
discharging his duties. x x x."
The law is very explicit. The master remains the overall commander of the
vessel even when there is a pilot on board. He remains in control of the ship
as he can still perform the duties conferred upon him by law 43 despite the
presence of a pilot who is temporarily in charge of the vessel. It is not
required of him to be on the bridge while the vessel is being navigated by a
pilot.
CONFLICTS | Dec17| 13
However, Section 8 of PPA Administrative Order No. 03-85, provides:
"Sec. 8. Compulsory Pilotage Service - For entering a harbor and anchoring
thereat, or passing through rivers or straits within a pilotage district, as well
as docking and undocking at any pier/wharf, or shifting from one berth or
another, every vessel engaged in coastwise and foreign trade shall be under
compulsory pilotage.
"xxx."
The Orinoco River being a compulsory pilotage channel necessitated the
engaging of a pilot who was presumed to be knowledgeable of every shoal,
bank, deep and shallow ends of the river. In his deposition, pilot Ezzar
Solarzano Vasquez testified that he is an official pilot in the Harbour at Port
Ordaz, Venezuela,44 and that he had been a pilot for twelve (12) years. 45 He
also had experience in navigating the waters of the Orinoco River.46
The law does provide that the master can countermand or overrule the order
or command of the harbor pilot on board. The master of the Philippine Roxas
deemed it best not to order him (the pilot) to stop the vessel, 47mayhap,
because the latter had assured him that they were navigating normally
before the grounding of the vessel. 48 Moreover, the pilot had admitted that on
account of his experience he was very familiar with the configuration of the
river as well as the course headings, and that he does not even refer to river
charts when navigating the Orinoco River.49
Based on these declarations, it comes as no surprise to us that the master
chose not to regain control of the ship. Admitting his limited knowledge of
the Orinoco River, Captain Colon relied on the knowledge and experience of
pilot Vasquez to guide the vessel safely.
"Licensed pilots, enjoying the emoluments of compulsory pilotage, are in a
different class from ordinary employees, for they assume to have a skill and
a knowledge of navigation in the particular waters over which their licenses
extend superior to that of the master; pilots are bound to use due diligence
and reasonable care and skill. A pilot's ordinary skill is in proportion to the
pilot's responsibilities, and implies a knowledge and observance of the usual
rules of navigation, acquaintance with the waters piloted in their ordinary
condition, and nautical skill in avoiding all known obstructions. The character
of the skill and knowledge required of a pilot in charge of a vessel on the
rivers of a country is very different from that which enables a navigator to

carry a vessel safely in the ocean. On the ocean, a knowledge of the rules of
navigation, with charts that disclose the places of hidden rocks, dangerous
shores, or other dangers of the way, are the main elements of a pilot's
knowledge and skill. But the pilot of a river vessel, like the harbor pilot, is
selected for the individual's personal knowledge of the topography through
which the vessel is steered."50
We find that the grounding of the vessel is attributable to the pilot. When the
vibrations were first felt the watch officer asked him what was going on, and
pilot Vasquez replied that "(they) were in the middle of the channel and that
the vibration was as (sic) a result of the shallowness of the channel." 51
Pilot Ezzar Solarzano Vasquez was assigned to pilot the vessel Philippine
Roxas as well as other vessels on the Orinoco River due to his knowledge of
the same. In his experience as a pilot, he should have been aware of the
portions which are shallow and which are not. His failure to determine the
depth of the said river and his decision to plod on his set course, in all
probability, caused damage to the vessel. Thus, we hold him as negligent and
liable for its grounding.
In the case of Homer Ramsdell Transportation Company vs. La
Compagnie Generale Transatlantique, 182 U.S. 406, it was held that:
"x x x The master of a ship, and the owner also, is liable for any injury done
by the negligence of the crew employed in the ship. The same doctrine will
apply to the case of a pilot employed by the master or owner, by whose
negligence any injury happens to a third person or his property: as, for
example, by a collision with another ship, occasioned by his negligence. And
it will make no difference in the case that the pilot, if any is employed, is
required to be a licensed pilot; provided the master is at liberty to take a
pilot, or not, at his pleasure, for in such a case the master acts voluntarily,
although he is necessarily required to select from a particular class. On the
other hand, if it is compulsive upon the master to take a pilot, and, a
fortiori, if he is bound to do so under penalty, then, and in such case,
neither he nor the owner will be liable for injuries occasioned by the
negligence of the pilot; for in such a case the pilot cannot be deemed
properly the servant of the master or the owner, but is forced upon them,
and the maxim Qui facit per alium facit per se does not apply." (Underscoring
supplied)
CONFLICTS | Dec17| 14
Anent the river passage plan, we find that, while there was none, 52 the
voyage has been sufficiently planned and monitored as shown by the
following actions undertaken by the pilot, Ezzar Solarzano Vasquez, to wit:
contacting the radio marina via VHF for information regarding the channel,
river traffic,53 soundings of the river, depth of the river, bulletin on the
buoys.54 The officer on watch also monitored the voyage.55
We, therefore, do not find the absence of a river passage plan to be the
cause for the grounding of the vessel.
The doctrine of res ipsa loquitur does not apply to the case at bar because
the circumstances surrounding the injury do not clearly indicate negligence
on the part of the private respondent. For the said doctrine to apply, the
following conditions must be met: (1) the accident was of such character as
to warrant an inference that it would not have happened except for
defendant's negligence; (2) the accident must have been caused by an
agency or instrumentality within the exclusive management or control of the
person charged with the negligence complained of; and (3) the accident must
not have been due to any voluntary action or contribution on the part of the
person injured.56
As has already been held above, there was a temporary shift of control over
the ship from the master of the vessel to the pilot on a compulsory pilotage
channel. Thus, two of the requisites necessary for the doctrine to apply, i.e.,
negligence and control, to render the respondent liable, are absent.
As to the claim that the ship was unseaworthy, we hold that it is not.
The Lloyds Register of Shipping confirmed the vessels seaworthiness in a
Confirmation of Class issued on February 16, 1988 by finding that "the above
named ship (Philippine Roxas) maintained the class "+100A1 Strengthened
for Ore Cargoes, Nos. 2 and 8 Holds may be empty (CC) and +LMC" from
31/12/87 up until the time of casualty on or about 12/2/88." 57 The same
would not have been issued had not the vessel been built according to the
standards set by Lloyd's.
Samuel Lim, a marine surveyor, at Lloyd's Register of Shipping testified thus:
"Q Now, in your opinion, as a surveyor, did top side tank have any bearing at
all to the seaworthiness of the vessel?

"A Well, judging on this particular vessel, and also basing on the class record
of the vessel, wherein recommendations were made on the top side tank,
and it was given sufficient time to be repaired, it means that the vessel is fit
to travel even with those defects on the ship.
"COURT
What do you mean by that? You explain. The vessel is fit to travel even with
defects? Is that what you mean? Explain.
"WITNESS
"A Yes, your Honor. Because the class society which register (sic) is the third
party looking into the condition of the vessel and as far as their record
states, the vessel was class or maintained, and she is fit to travel during that
voyage."
"x x x
"ATTY. MISA
Before we proceed to other matter, will you kindly tell us what is (sic) the
'class +100A1 Strengthened for Ore Cargoes', mean?
"WITNESS
"A Plus 100A1 means that the vessel was built according to Lloyd's rules and
she is capable of carrying ore bulk cargoes, but she is particularly capable of
carrying Ore Cargoes with No. 2 and No. 8 holds empty.
"x x x
"COURT
The vessel is classed, meaning?
"A Meaning she is fit to travel, your Honor, or seaworthy."58
CONFLICTS | Dec17| 15
It is not required that the vessel must be perfect. To be seaworthy, a ship
must be reasonably fit to perform the services, and to encounter the ordinary
perils of the voyage, contemplated by the parties to the policy.59
As further evidence that the vessel was seaworthy, we quote the deposition
of pilot Vasquez:
"Q Was there any instance when your orders or directions were not complied
with because of the inability of the vessel to do so?
"A No.
"Q. Was the vessel able to respond to all your commands and orders?
"A. The vessel was navigating normally."60
Eduardo P. Mata, Second Engineer of the Philippine Roxas submitted an
accident report wherein he stated that on February 11, 1988, he checked and
prepared the main engine, machineries and all other auxiliaries and found
them all to be in good running condition and ready for maneuvering. That
same day the main engine, bridge and engine telegraph and steering gear
motor were also tested.61 Engineer Mata also prepared the fuel for
consumption for maneuvering and checked the engine generators. 62
Finally, we find the award of attorneys fee justified.1wphi1
Article 2208 of the New Civil Code provides that:
"Art. 2208. In the absence of stipulation, attorney's fees and expenses of
litigation, other than judicial costs, cannot be recovered, except:
"x x x
"(11) In any other case where the court deems it just and equitable that
attorney's fees and expenses of litigation should be recovered.
"x x x"
Due to the unfounded filing of this case, the private respondent was
unjustifiably forced to litigate, thus the award of attorneys fees was proper.
 CONFLICTS | Dec17| 16

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED and the THE REGISTER OF DEEDS OF THE CITY OF MANILA, respondent-
decision of the Court of Appeals in CA G.R. CV No. 36821 is AFFIRMED. appellant.

SO ORDERED. Office of the Solicitor-General Hilado for appellants.

Allison D. Gibbs in his own behalf.

BUTTE, J.:

This is an appeal from a final order of the Court of First Instance of Manila,
requiring the register of deeds of the City of Manila to cancel certificates of
title Nos. 20880, 28336 and 28331, covering lands located in the City of
Manila, Philippine Islands, and issue in lieu thereof new certificates of transfer
of title in favor of Allison D. Gibbs without requiring him to present any
document showing that the succession tax due under Article XI of Chapter 40
of the Administrative Code has been paid.

The said order of the court of March 10, 1931, recites that the parcels of land
covered by said certificates of title formerly belonged to the conjugal
partnership of Allison D. Gibbs and Eva Johnson Gibbs; that the latter died
intestate in Palo Alto, California, on November 28, 1929; that at the time of
her death she and her husband were citizens of the State of California and
domiciled therein.

It appears further from said order that Allison D. Gibbs was appointed
administrator of the state of his said deceased wife in case No. 36795 in the
same court, entitled "In the Matter of the Intestate Estate of Eva Johnson
Gibbs, Deceased"; that in said intestate proceedings, the said Allison D.
Gibbs, on September 22,1930, filed an ex parte petition in which he alleged
"that the parcels of land hereunder described belong to the conjugal
partnership of your petitioner and his wife, Eva Johnson Gibbs", describing in
detail the three facts here involved; and further alleging that his said wife, a
citizen and resident of California, died on November 28,1929; that in
G.R. No. L-35694 December 23, 1933 accordance with the law of California, the community property of spouses
who are citizens of California, upon the death of the wife previous to that of
ALLISON G. GIBBS, petitioner-appelle, the husband, belongs absolutely to the surviving husband without
vs. administration; that the conjugal partnership of Allison D. Gibbs and Eva
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, oppositor-appellant. Johnson Gibbs, deceased, has no obligations or debts and no one will be
prejudiced by adjucating said parcels of land (and seventeen others not here
involved) to be the absolute property of the said Allison D. Gibbs as sole

owner. The court granted said petition and on September 22, 1930, entered a
decree adjucating the said Allison D. Gibbs to be the sole and absolute owner
of said lands, applying section 1401 of the Civil Code of California. Gibbs
presented this decree to the register of deeds of Manila and demanded that
the latter issue to him a "transfer certificate of title".
Section 1547 of Article XI of Chapter 40 of the Administrative Code provides
in part that:
Registers of deeds shall not register in the registry of property any
document transferring real property or real rights therein or any
chattel mortgage, by way of gifts mortis causa, legacy or inheritance,
unless the payment of the tax fixed in this article and actually due
thereon shall be shown. And they shall immediately notify the
Collector of Internal Revenue or the corresponding provincial
treasurer of the non payment of the tax discovered by them. . . .
Acting upon the authority of said section, the register of deeds of the City of
Manila, declined to accept as binding said decree of court of September
22,1930, and refused to register the transfer of title of the said conjugal
property to Allison D. Gibbs, on the ground that the corresponding
inheritance tax had not been paid. Thereupon, under date of December 26,
1930, Allison D. Gibbs filed in the said court a petition for an order requiring
the said register of deeds "to issue the corresponding titles" to the petitioner
without requiring previous payment of any inheritance tax. After due hearing
of the parties, the court reaffirmed said order of September 22, 1930, and
entered the order of March 10, 1931, which is under review on this appeal.
On January 3, 1933, this court remanded the case to the court of origin for
new trial upon additional evidence in regard to the pertinent law of California
in force at the time of the death of Mrs. Gibbs, also authorizing the
introduction of evidence with reference to the dates of the acquisition of the
property involved in this suit and with reference to the California law in force
at the time of such acquisition. The case is now before us with the
supplementary evidence.
For the purposes of this case, we shall consider the following facts as
established by the evidence or the admissions of the parties: Allison D. Gibbs
has been continuously, since the year 1902, a citizen of the State of
California and domiciled therein; that he and Eva Johnson Gibbs were
married at Columbus, Ohio, in July 1906; that there was no antenuptial
CONFLICTS | Dec17| 17
marriage contract between the parties; that during the existence of said
marriage the spouses acquired the following lands, among others, in the
Philippine Islands, as conjugal property:lawphil.net
1. A parcel of land in the City of Manila represented by transfer certificate of
title No. 20880, dated March 16, 1920, and registered in the name of "Allison
D. Gibbs casado con Eva Johnson Gibbs".
2. A parcel of land in the City of Manila, represented by transfer certificate of
title No. 28336, dated May 14, 1927, in which it is certified "that spouses
Allison D. Gibbs and Eva Johnson Gibbs are the owners in fee simple" of the
land therein described.
3. A parcel of land in the City of Manila, represented by transfer certificate of
title No. 28331, dated April 6, 1927, which it states "that Allison D. Gibbs
married to Eva Johnson Gibbs" is the owner of the land described therein;
that said Eva Johnson Gibbs died intestate on November 28, 1929, living
surviving her her husband, the appellee, and two sons, Allison J. Gibbs , now
age 25 and Finley J. Gibbs, now aged 22, as her sole heirs of law.
Article XI of Chapter 40 of the Administrative Code entitled "Tax on
inheritances, legacies and other acquisitions mortis causa" provides in section
1536 that "Every transmission by virtue of inheritance ... of real property ...
shall be subject to the following tax." It results that the question for
determination in this case is as follows: Was Eva Johnson Gibbs at the time of
her death the owner of a descendible interest in the Philippine lands above-
mentioned?
The appellee contends that the law of California should determine the nature
and extent of the title, if any, that vested in Eva Johnson Gibbs under the
three certificates of title Nos. 20880, 28336 and 28331 above referred to,
citing article 9 of the Civil Code. But that, even if the nature and extent of
her title under said certificates be governed by the law of the Philippine
Islands, the laws of California govern the succession to such title, citing the
second paragraph of article 10 of the Civil Code.
Article 9 of the Civil Code is as follows:
The laws relating to family rights and duties, or to the status,
condition, and legal capacity of persons, are binding upon Spaniards

even though they reside in a foreign country." It is argued that the
conjugal right of the California wife in community real estate in the
Philippine Islands is a personal right and must, therefore, be settled
by the law governing her personal status, that is, the law of
California. But our attention has not been called to any law of
California that incapacitates a married woman from acquiring or
holding land in a foreign jurisdiction in accordance with the lex rei
sitae. There is not the slightest doubt that a California married
woman can acquire title to land in a common law jurisdiction like the
State of Illinois or the District of Columbia, subject to the common-
law estate by the courtesy which would vest in her husband. Nor is
there any doubt that if a California husband acquired land in such a
jurisdiction his wife would be vested with the common law right of
dower, the prerequisite conditions obtaining. Article 9 of the Civil
Code treats of purely personal relations and status and capacity for
juristic acts, the rules relating to property, both personal and real,
being governed by article 10 of the Civil Code. Furthermore, article 9,
by its very terms, is applicable only to "Spaniards" (now, by
construction, to citizens of the Philippine Islands).
The Organic Act of the Philippine Islands (Act of Congress, August 29,
1916, known as the "Jones Law") as regards the determination of
private rights, grants practical autonomy to the Government of the
Philippine Islands. This Government, therefore, may apply the
principles and rules of private international law (conflicts of laws) on
the same footing as an organized territory or state of the United
States. We should, therefore, resort to the law of California, the
nationality and domicile of Mrs. Gibbs, to ascertain the norm which
would be applied here as law were there any question as to her
status.
But the appellant's chief argument and the sole basis of the lower court's
decision rests upon the second paragraph of article 10 of the Civil Code which
is as follows:
Nevertheless, legal and testamentary successions, in respect to the
order of succession as well as to the amount of the successional
rights and the intrinsic validity of their provisions, shall be regulated
by the national law of the person whose succession is in question,
whatever may be the nature of the property or the country in which it
may be situated.
CONFLICTS | Dec17| 18
In construing the above language we are met at the outset with some
difficulty by the expression "the national law of the person whose succession
is in question", by reason of the rather anomalous political status of the
Philippine Islands. (Cf. Manresa, vol. 1, Codigo Civil, pp. 103, 104.) We
encountered no difficulty in applying article 10 in the case of a citizen of
Turkey. (Miciano vs. Brimo, 50 Phil., 867.) Having regard to the practical
autonomy of the Philippine Islands, as above stated, we have concluded that
if article 10 is applicable and the estate in question is that of a deceased
American citizen, the succession shall be regulated in accordance with the
norms of the State of his domicile in the United States. (Cf. Babcock
Templeton vs. Rider Babcock, 52 Phil., 130, 137; In re Estate of Johnson, 39
Phil., 156, 166.)
The trial court found that under the law of California, upon the death of the
wife, the entire community property without administration belongs to the
surviving husband; that he is the absolute owner of all the community
property from the moment of the death of his wife, not by virtue of
succession or by virtue of her death, but by virtue of the fact that when the
death of the wife precedes that of the husband he acquires the community
property, not as an heir or as the beneficiary of his deceased wife, but
because she never had more than an inchoate interest or expentancy which
is extinguished upon her death. Quoting the case of Estate of Klumpke (167
Cal., 415, 419), the court said: "The decisions under this section (1401 Civil
Code of California) are uniform to the effect that the husband does not take
the community property upon the death of the wife by succession, but that
he holds it all from the moment of her death as though required by
himself. ... It never belonged to the estate of the deceased wife."
The argument of the appellee apparently leads to this dilemma: If he takes
nothing by succession from his deceased wife, how can the second paragraph
of article 10 be invoked? Can the appellee be heard to say that there is a
legal succession under the law of the Philippine Islands and no legal
succession under the law of California? It seems clear that the second
paragraph of article 10 applies only when a legal or testamentary succession
has taken place in the Philippines and in accordance with the law of the
Philippine Islands; and the foreign law is consulted only in regard to the order
of succession or the extent of the successional rights; in other words, the
second paragraph of article 10 can be invoked only when the deceased was
vested with a descendible interest in property within the jurisdiction of the
Philippine Islands.

In the case of Clarke vs. Clarke (178 U. S., 186, 191; 44 Law ed., 1028,
1031), the court said:
It is principle firmly established that to the law of the state in which
the land is situated we must look for the rules which govern its
descent, alienation, and transfer, and for the effect and construction
of wills and other conveyances. (United States vs. Crosby, 7 Cranch,
115; 3 L. ed., 287; Clark vs. Graham, 6 Wheat., 577; 5 L. ed., 334;
McGoon vs. Scales, 9 Wall., 23; 19 L. ed., 545; Brine vs. Hartford F.
Ins. Co., 96 U. S., 627; 24 L. ed., 858.)" (See also Estate of Lloyd,
175 Cal., 704, 705.) This fundamental principle is stated in the first
paragraph of article 10 of our Civil Code as follows: "Personal
property is subject to the laws of the nation of the owner thereof;
real property to the laws of the country in which it is situated.
It is stated in 5 Cal. Jur., 478:
In accord with the rule that real property is subject to the lex rei
sitae, the respective rights of husband and wife in such property, in
the absence of an antenuptial contract, are determined by the law of
the place where the property is situated, irrespective of the domicile
of the parties or to the place where the marriage was celebrated.
(See also Saul vs. His Creditors, 5 Martin [N. S.], 569; 16 Am. Dec.,
212 [La.]; Heidenheimer vs. Loring, 26 S. W., 99 [Texas].)
Under this broad principle, the nature and extent of the title which vested in
Mrs. Gibbs at the time of the acquisition of the community lands here in
question must be determined in accordance with the lex rei sitae.
It is admitted that the Philippine lands here in question were acquired as
community property of the conjugal partnership of the appellee and his wife.
Under the law of the Philippine Islands, she was vested of a title equal to that
of her husband. Article 1407 of the Civil Code provides:
All the property of the spouses shall be deemed partnership property
in the absence of proof that it belongs exclusively to the husband or
to the wife. Article 1395 provides:
"The conjugal partnership shall be governed by the rules of law applicable to
the contract of partnership in all matters in which such rules do not conflict
CONFLICTS | Dec17| 19
with the express provisions of this chapter." Article 1414 provides that "the
husband may dispose by will of his half only of the property of the conjugal
partnership." Article 1426 provides that upon dissolution of the conjugal
partnership and after inventory and liquidation, "the net remainder of the
partnership property shall be divided share and share alike between the
husband and wife, or their respective heirs." Under the provisions of the Civil
Code and the jurisprudence prevailing here, the wife, upon the acquisition of
any conjugal property, becomes immediately vested with an interest and title
therein equal to that of her husband, subject to the power of management
and disposition which the law vests in the husband. Immediately upon her
death, if there are no obligations of the decedent, as is true in the present
case, her share in the conjugal property is transmitted to her heirs by
succession. (Articles 657, 659, 661, Civil Code; cf. alsoCoronel vs. Ona, 33
Phil., 456, 469.)
It results that the wife of the appellee was, by the law of the Philippine
Islands, vested of a descendible interest, equal to that of her husband, in the
Philippine lands covered by certificates of title Nos. 20880, 28336 and 28331,
from the date of their acquisition to the date of her death. That appellee
himself believed that his wife was vested of such a title and interest in
manifest from the second of said certificates, No. 28336, dated May 14,
1927, introduced by him in evidence, in which it is certified that "the spouses
Allison D. Gibbs and Eva Johnson Gibbs are the owners in fee simple of the
conjugal lands therein described."
The descendible interest of Eva Johnson Gibbs in the lands aforesaid was
transmitted to her heirs by virtue of inheritance and this transmission plainly
falls within the language of section 1536 of Article XI of Chapter 40 of the
Administrative Code which levies a tax on inheritances. (Cf. Re Estate of
Majot, 199 N. Y., 29; 92 N. E., 402; 29 L. R. A. [N. S.], 780.) It is
unnecessary in this proceeding to determine the "order of succession" or the
"extent of the successional rights" (article 10, Civil Code, supra) which would
be regulated by section 1386 of the Civil Code of California which was in
effect at the time of the death of Mrs. Gibbs.
The record does not show what the proper amount of the inheritance tax in
this case would be nor that the appellee (petitioner below) in any way
challenged the power of the Government to levy an inheritance tax or the
validity of the statute under which the register of deeds refused to issue a
certificate of transfer reciting that the appellee is the exclusive owner of the
Philippine lands included in the three certificates of title here involved.
 CONFLICTS | Dec17| 20

The judgment of the court below of March 10, 1931, is reversed with
directions to dismiss the petition, without special pronouncement as to the
costs.

G.R. No. L-16749 January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E.

CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the
deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.

M. R. Sotelo for executor and heir-appellees.

Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.

LABRADOR, J.:

This is an appeal from a decision of the Court of First Instance of Davao, Hon.
Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court,
dated September 14, 1949, approving among things the final accounts of the
executor, directing the executor to reimburse Maria Lucy Christensen the
amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and
declaring Maria Lucy Christensen entitled to the residue of the property to be
enjoyed during her lifetime, and in case of death without issue, one-half of
said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance
with the provisions of the will of the testator Edward E. Christensen. The will
was executed in Manila on March 5, 1951 and contains the following
provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY
CHRISTENSEN (now Mrs. Bernard Daney), who was born in the
Philippines about twenty-eight years ago, and who is now residing at
No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no
descendants except my above named daughter, MARIA LUCY
CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN,
now married to Eduardo Garcia, about eighteen years of age and
who, notwithstanding the fact that she was baptized Christensen, is
not in any way related to me, nor has she been at any time adopted
by me, and who, from all information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of THREE THOUSAND SIX
HUNDRED PESOS (P3,600.00), Philippine Currency the same to be
deposited in trust for the said Maria Helen Christensen with the
Davao Branch of the Philippine National Bank, and paid to her at the
rate of One Hundred Pesos (P100.00), Philippine Currency per month
until the principal thereof as well as any interest which may have
accrued thereon, is exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my well-beloved
daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard
Daney), now residing as aforesaid at No. 665 Rodger Young Village,
CONFLICTS | Dec17| 21
Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal
and/or mixed, of whatsoever kind or character, and wheresoever
situated, of which I may be possessed at my death and which may
have come to me from any source whatsoever, during her
lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his
final account and project of partition ratified the payment of only P3,600 to
Helen Christensen Garcia and proposed that the residue of the estate be
transferred to his daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen
Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an
acknowledged natural child, she having been declared by Us in G.R. Nos. L-
11483-84 an acknowledged natural child of the deceased Edward E.
Christensen. The legal grounds of opposition are (a) that the distribution
should be governed by the laws of the Philippines, and (b) that said order of
distribution is contrary thereto insofar as it denies to Helen Christensen, one
of two acknowledged natural children, one-half of the estate in full
ownership. In amplification of the above grounds it was alleged that the law
that should govern the estate of the deceased Christensen should not be the
internal law of California alone, but the entire law thereof because several
foreign elements are involved, that the forum is the Philippines and even if
the case were decided in California, Section 946 of the California Civil Code,
which requires that the domicile of the decedent should apply, should be
applicable. It was also alleged that Maria Helen Christensen having been
declared an acknowledged natural child of the decedent, she is deemed for all
purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the
United States and of the State of California at the time of his death, the
successional rights and intrinsic validity of the provisions in his will are to be
governed by the law of California, in accordance with which a testator has the
right to dispose of his property in the way he desires, because the right of
absolute dominion over his property is sacred and inviolable (In re McDaniel's
Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal.
286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria
Helen Christensen, through counsel, filed various motions for reconsideration,
but these were denied. Hence, this appeal.
 CONFLICTS | Dec17| 22

The most important assignments of error are as follows:
I November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival in
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE
HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED
NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN
DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO
RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND
CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER
INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE
INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E.
CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
In the proceedings for admission of the will to probate, the facts of
record show that the deceased Edward E. Christensen was born on
the Philippines, as an appointed school teacher, was on July 1, 1901,
on board the U.S. Army Transport "Sheridan" with Port of
Embarkation as the City of San Francisco, in the State of California,
U.S.A. He stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United States
and stayed there for the following nine years until 1913, during which
time he resided in, and was teaching school in Sacramento,
California.
Mr. Christensen's next arrival in the Philippines was in July of the year
1913. However, in 1928, he again departed the Philippines for the
United States and came back here the following year, 1929. Some
nine years later, in 1938, he again returned to his own country, and
came back to the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation
of facts be admitted and approved by this Honorable Court, without
prejudice to the parties adducing other evidence to prove their case
not covered by this stipulation of facts. 1wph1.t

IV
Being an American citizen, Mr. Christensen was interned by the
Japanese Military Forces in the Philippines during World War II. Upon
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF
liberation, in April 1945, he left for the United States but returned to
DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE
the Philippines in December, 1945. Appellees Collective Exhibits "6",
PHILIPPINE LAWS.
CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney";
Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)
V

In April, 1951, Edward E. Christensen returned once more to

THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE
California shortly after the making of his last will and testament (now
LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF
in question herein) which he executed at his lawyers' offices in Manila
THE ESTATE IN FULL OWNERSHIP.
on March 5, 1951. He died at the St. Luke's Hospital in the City of
Manila on April 30, 1953. (pp. 2-3)
There is no question that Edward E. Christensen was a citizen of the United
States and of the State of California at the time of his death. But there is also
In arriving at the conclusion that the domicile of the deceased is the
no question that at the time of his death he was domiciled in the Philippines,
Philippines, we are persuaded by the fact that he was born in New York,
as witness the following facts admitted by the executor himself in appellee's
migrated to California and resided there for nine years, and since he came to
brief:
the Philippines in 1913 he returned to California very rarely and only for short

visits (perhaps to relatives), and considering that he appears never to have
owned or acquired a home or properties in that state, which would indicate
that he would ultimately abandon the Philippines and make home in the State
of California.
Sec. 16. Residence is a term used with many shades of meaning from
mere temporary presence to the most permanent abode. Generally,
however, it is used to denote something more than mere physical
presence. (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in
California when he resided in Sacramento, California from 1904 to 1913, was
never lost by his stay in the Philippines, for the latter was a territory of the
United States (not a state) until 1946 and the deceased appears to have
considered himself as a citizen of California by the fact that when he
executed his will in 1951 he declared that he was a citizen of that State; so
that he appears never to have intended to abandon his California citizenship
by acquiring another. This conclusion is in accordance with the following
principle expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean
the same thing, a place of permanent abode. But domicile, as has
been shown, has acquired a technical meaning. Thus one may be
domiciled in a place where he has never been. And he may reside in
a place where he has no domicile. The man with two homes, between
which he divides his time, certainly resides in each one, while living
in it. But if he went on business which would require his presence for
several weeks or months, he might properly be said to have sufficient
connection with the place to be called a resident. It is clear, however,
that, if he treated his settlement as continuing only for the particular
business in hand, not giving up his former "home," he could not be a
domiciled New Yorker. Acquisition of a domicile of choice requires the
exercise of intention as well as physical presence. "Residence simply
requires bodily presence of an inhabitant in a given place, while
domicile requires bodily presence in that place and also an intention
to make it one's domicile." Residence, however, is a term used with
many shades of meaning, from the merest temporary presence to the
most permanent abode, and it is not safe to insist that any one use
et the only proper one. (Goodrich, p. 29)
CONFLICTS | Dec17| 23
The law that governs the validity of his testamentary dispositions is defined
in Article 16 of the Civil Code of the Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject to the
law of the country where it is situated.
However, intestate and testamentary successions, both with respect
to the order of succession and to the amount of successional rights
and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is
under consideration, whatever may be the nature of the property and
regardless of the country where said property may be found.
The application of this article in the case at bar requires the determination of
the meaning of the term "national law" is used therein.
There is no single American law governing the validity of testamentary
provisions in the United States, each state of the Union having its own
private law applicable to its citizens only and in force only within the state.
The "national law" indicated in Article 16 of the Civil Code above quoted can
not, therefore, possibly mean or apply to any general American law. So it can
refer to no other than the private law of the State of California.
The next question is: What is the law in California governing the disposition
of personal property? The decision of the court below, sustains the contention
of the executor-appellee that under the California Probate Code, a testator
may dispose of his property by will in the form and manner he desires, citing
the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But
appellant invokes the provisions of Article 946 of the Civil Code of California,
which is as follows:
If there is no law to the contrary, in the place where personal
property is situated, it is deemed to follow the person of its owner,
and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not
denied. We have checked it in the California Civil Code and it is there.
Appellee, on the other hand, relies on the case cited in the decision and
testified to by a witness. (Only the case of Kaufman is correctly cited.) It is
argued on executor's behalf that as the deceased Christensen was a citizen of

the State of California, the internal law thereof, which is that given in the
abovecited case, should govern the determination of the validity of the
testamentary provisions of Christensen's will, such law being in force in the
State of California of which Christensen was a citizen. Appellant, on the other
hand, insists that Article 946 should be applicable, and in accordance
therewith and following the doctrine of the renvoi, the question of the validity
of the testamentary provision in question should be referred back to the law
of the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws
rule of the forum refers a jural matter to a foreign law for decision, is
the reference to the purely internal rules of law of the foreign
system; i.e., to the totality of the foreign law minus its Conflict of
Laws rules?"
On logic, the solution is not an easy one. The Michigan court chose to
accept the renvoi, that is, applied the Conflict of Laws rule of Illinois
which referred the matter back to Michigan law. But once having
determined the the Conflict of Laws principle is the rule looked to, it
is difficult to see why the reference back should not have been to
Michigan Conflict of Laws. This would have resulted in the "endless
chain of references" which has so often been criticized be legal
writers. The opponents of the renvoi would have looked merely to the
internal law of Illinois, thus rejecting the renvoi or the reference
back. Yet there seems no compelling logical reason why the original
reference should be the internal law rather than to the Conflict of
Laws rule. It is true that such a solution avoids going on a merry-go-
round, but those who have accepted the renvoitheory avoid
this inextricabilis circulas by getting off at the second reference and
at that point applying internal law. Perhaps the opponents of
the renvoi are a bit more consistent for they look always to internal
law as the rule of reference.
Strangely enough, both the advocates for and the objectors to
the renvoi plead that greater uniformity will result from adoption of
their respective views. And still more strange is the fact that the only
way to achieve uniformity in this choice-of-law problem is if in the
dispute the two states whose laws form the legal basis of the
litigation disagree as to whether the renvoi should be accepted. If
CONFLICTS | Dec17| 24
both reject, or both accept the doctrine, the result of the litigation
will vary with the choice of the forum. In the case stated above, had
the Michigan court rejected the renvoi, judgment would have been
against the woman; if the suit had been brought in the Illinois courts,
and they too rejected the renvoi, judgment would be for the woman.
The same result would happen, though the courts would switch with
respect to which would hold liability, if both courts accepted
the renvoi.
The Restatement accepts the renvoi theory in two instances: where
the title to land is in question, and where the validity of a decree of
divorce is challenged. In these cases the Conflict of Laws rule of the
situs of the land, or the domicile of the parties in the divorce case, is
applied by the forum, but any further reference goes only to the
internal law. Thus, a person's title to land, recognized by the situs,
will be recognized by every court; and every divorce, valid by the
domicile of the parties, will be valid everywhere. (Goodrich, Conflict
of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France,
leaving movable property in Massachusetts, England, and France. The
question arises as to how this property is to be distributed among X's
next of kin.
Assume (1) that this question arises in a Massachusetts court. There
the rule of the conflict of laws as to intestate succession to movables
calls for an application of the law of the deceased's last domicile.
Since by hypothesis X's last domicile was France, the natural thing for
the Massachusetts court to do would be to turn to French statute of
distributions, or whatever corresponds thereto in French law, and
decree a distribution accordingly. An examination of French law,
however, would show that if a French court were called upon to
determine how this property should be distributed, it would refer the
distribution to the national law of the deceased, thus applying the
Massachusetts statute of distributions. So on the surface of things
the Massachusetts court has open to it alternative course of action:
(a) either to apply the French law is to intestate succession, or (b) to
resolve itself into a French court and apply the Massachusetts statute
of distributions, on the assumption that this is what a French court
would do. If it accepts the so-called renvoidoctrine, it will follow the
latter course, thus applying its own law.

This is one type of renvoi. A jural matter is presented which the
conflict-of-laws rule of the forum refers to a foreign law, the conflict-
of-laws rule of which, in turn, refers the matter back again to the law
of the forum. This is renvoi in the narrower sense. The German term
for this judicial process is 'Ruckverweisung.'" (Harvard Law Review,
Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be
resorted to as governing a particular case, the further question may
arise: Are the rules as to the conflict of laws contained in such foreign
law also to be resorted to? This is a question which, while it has been
considered by the courts in but a few instances, has been the subject
of frequent discussion by textwriters and essayists; and the doctrine
involved has been descriptively designated by them as the
"Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the question
postulated and the operation of the adoption of the foreign law in
toto would in many cases result in returning the main controversy to
be decided according to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been
advanced. The theory of the doctrine of renvoiis that the court of the
forum, in determining the question before it, must take into account
the whole law of the other jurisdiction, but also its rules as to conflict
of laws, and then apply the law to the actual question which the rules
of the other jurisdiction prescribe. This may be the law of the forum.
The doctrine of the renvoi has generally been repudiated by the
American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for
its application in a country explained by Prof. Lorenzen in an article in the
Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of
the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of the
conflict of laws are to be understood as incorporating not only the
ordinary or internal law of the foreign state or country, but its rules of
the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.
xxx xxx xxx
CONFLICTS | Dec17| 25
Von Bar presented his views at the meeting of the Institute of
International Law, at Neuchatel, in 1900, in the form of the following
theses:
(1) Every court shall observe the law of its country as regards the
application of foreign laws.
(2) Provided that no express provision to the contrary exists, the
court shall respect:
(a) The provisions of a foreign law which disclaims the right
to bind its nationals abroad as regards their personal statute,
and desires that said personal statute shall be determined by
the law of the domicile, or even by the law of the place where
the act in question occurred.
(b) The decision of two or more foreign systems of law,
provided it be certain that one of them is necessarily
competent, which agree in attributing the determination of a
question to the same system of law.
xxx xxx xxx
If, for example, the English law directs its judge to distribute the
personal estate of an Englishman who has died domiciled in Belgium
in accordance with the law of his domicile, he must first inquire
whether the law of Belgium would distribute personal property upon
death in accordance with the law of domicile, and if he finds that the
Belgian law would make the distribution in accordance with the law of
nationality that is the English law he must accept this reference
back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule,
while the rule applied in In re Kaufman, Supra, its internal law. If the law on
succession and the conflict of laws rules of California are to be enforced
jointly, each in its own intended and appropriate sphere, the principle cited In
re Kaufman should apply to citizens living in the State, but Article 946 should
apply to such of its citizens as are not domiciled in California but in other
jurisdictions. The rule laid down of resorting to the law of the domicile in the
determination of matters with foreign element involved is in accord with the

general principle of American law that the domiciliary law should govern in
most matters or rights which follow the person of the owner.
When a man dies leaving personal property in one or more states,
and leaves a will directing the manner of distribution of the property,
the law of the state where he was domiciled at the time of his death
will be looked to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions about the
devise of land. It is logical that, since the domiciliary rules control
devolution of the personal estate in case of intestate succession, the
same rules should determine the validity of an attempted
testamentary dispostion of the property. Here, also, it is not that the
domiciliary has effect beyond the borders of the domiciliary state.
The rules of the domicile are recognized as controlling by the Conflict
of Laws rules at the situs property, and the reason for the recognition
as in the case of intestate succession, is the general convenience of
the doctrine. The New York court has said on the point: 'The general
principle that a dispostiton of a personal property, valid at the
domicile of the owner, is valid anywhere, is one of the universal
application. It had its origin in that international comity which was
one of the first fruits of civilization, and it this age, when business
intercourse and the process of accumulating property take but little
notice of boundary lines, the practical wisdom and justice of the rule
is more apparent than ever. (Goodrich, Conflict of Laws, Sec. 164,
pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines
pointed out as the national law is the internal law of California. But as above
explained the laws of California have prescribed two sets of laws for its
citizens, one for residents therein and another for those domiciled in other
jurisdictions. Reason demands that We should enforce the California internal
law prescribed for its citizens residing therein, and enforce the conflict of laws
rules for the citizens domiciled abroad. If we must enforce the law of
California as in comity we are bound to go, as so declared in Article 16 of our
Civil Code, then we must enforce the law of California in accordance with the
express mandate thereof and as above explained, i.e., apply the internal law
for residents therein, and its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the
contrary in the place where the property is situated" in Sec. 946 of the
California Civil Code refers to Article 16 of the Civil Code of the Philippines
CONFLICTS | Dec17| 26
and that the law to the contrary in the Philippines is the provision in said
Article 16 that the national law of the deceased should govern. This
contention can not be sustained. As explained in the various authorities cited
above the national law mentioned in Article 16 of our Civil Code is the law on
conflict of laws in the California Civil Code, i.e., Article 946, which authorizes
the reference or return of the question to the law of the testator's domicile.
The conflict of laws rule in California, Article 946, Civil Code, precisely refers
back the case, when a decedent is not domiciled in California, to the law of
his domicile, the Philippines in the case at bar. The court of the domicile can
not and should not refer the case back to California; such action would leave
the issue incapable of determination because the case will then be like a
football, tossed back and forth between the two states, between the country
of which the decedent was a citizen and the country of his domicile. The
Philippine court must apply its own law as directed in the conflict of laws rule
of the state of the decedent, if the question has to be decided, especially as
the application of the internal law of California provides no legitime for
children while the Philippine law, Arts. 887(4) and 894, Civil Code of the
Philippines, makes natural children legally acknowledged forced heirs of the
parent recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs.
Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton
vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.)
cited by appellees to support the decision can not possibly apply in the case
at bar, for two important reasons, i.e., the subject in each case does not
appear to be a citizen of a state in the United States but with domicile in the
Philippines, and it does not appear in each case that there exists in the state
of which the subject is a citizen, a law similar to or identical with Art. 946 of
the California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a citizen
of California, is the Philippines, the validity of the provisions of his will
depriving his acknowledged natural child, the appellant, should be governed
by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of
California, not by the internal law of California..
WHEREFORE, the decision appealed from is hereby reversed and the case
returned to the lower court with instructions that the partition be made as
the Philippine law on succession provides. Judgment reversed, with costs
against appellees.
CONFLICTS | Dec17| 27