Transpo Digests
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Carriage of Goods a. Articles 1733 to 1753 of the Civil Code b. Obligations of the carrier c. Extraordinary diligence i. Eastern Shipping vs. CA (VELASCO) Shipper – Eastern Shipping Lines Buyer – Stresstek PostTensioning Phils, Inc. Consignee – E. Razon, Inc. Insurer – First Nationwide Assurance Corporation Goods: 13 coils of uncoated 7wire stress relieved wire strand Vessel: Japri Venture Facts While en route from Kobe, Japan to Manila, the vessel encountered rough seas and stormy weather. Water entered the hatch where the goods were stored, and was flooded with water about one foot deep. A survey of bad order cargo was conducted at the pier. Upon survey, it was found the 7 coils were rusty on one side, which cause was attributed to the water (fresh water from rain) in the hatch. And all 13 coils were extremely rusty and unsuitable for their purpose. First Nationwide instituted the complaint against Eastern Shipping and E.Razon. RTC: Dismissed the case CA: Reversed TC decision Eastern Shipping and E. Razon were ordered to pay 8/13 and 5/13 of the amount, respectively. Issue What is the extent of liability of the common carrier and its insurer for damage upon delivery of the goods to the arrastre operator? SC: Petitioner claims it should not be held liable as the shipment was discharged and delivered complete into the custody of the arrastre operator under clean tally sheets. While it is true the cargo was delivered to the arrastre operator in apparent good order condition, based on the facts, the appellate court made the following conclusions: 1
The heavy seas and rains were not caso fortuito, but normal occurrences that an oceangoing vessel, particularly in the month of September which, in our area, is a month of rains and heavy seas would encounter as a matter of routine. They are not unforeseen nor unforeseeable. These are conditions that is present in the ordinary course of a voyage. That rain water (not sea water) found its way into the holds of the Jupri Venture is a clear indication that care and foresight did not attend the closing of the ship's hatches so that rain water would not find its way into the cargo holds of the ship. (EXTRAORDINARY DILIGENCE ISSUE) Under Article 1733 of the Civil Code, common carriers are bound to observe "extraordinary vigilance over goods . . . .according to all circumstances of each case," and Article 1735 of the same Code states, to wit: Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article, if the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required in article 1733. Since the carrier has failed to establish any caso fortuito, the presumption by law of fault or negligence on the part of the carrier applies; and the carrier must present evidence that it has observed the extraordinary diligence required by Article 1733 of the Civil Code in order to escape liability for damage or destruction to the goods that it had admittedly carried in this case. No such evidence exists of record. Thus, the carrier cannot escape liability. ii. Philippine CHarter vs. Chemoil (BUENAVENTURA) DOCTRINE: The filing of a claim with the carrier within the time limitation therefore actually constitutes a condition precedent to the accrual of a right of action against a carrier for loss of, or damage to, the goods. The shipper or consignee must allege and prove the fulfillment of the condition. If it fails to do so, no right of action against the carrier can accrue in favor of the former. The aforementioned requirement is a reasonable condition precedent; it does not constitute a limitation of action. FACTS: Petitioner Philippine Charter Insurance Corporation is a domestic corporation engaged in the business of nonlife insurance. Respondent Chemoil Lighterage Corporation is also a domestic corporation engaged in the transport of goods. On 24 January 1991, Samkyung Chemical Company, Ltd., based in South Korea, shipped 62.06 metric tons of the liquid chemical DIOCTYL PHTHALATE (DOP) on board MT “TACHIBANA” which was valued at US$90,201.57 and another 2
436.70 metric tons of DOP valued at US$634,724.89 to the Philippines. The consignee was Plastic Group Phils., Inc. in Manila. PGP insured the cargo with Philippine Charter Insurance Corporation against all risks. The ocean tanker MT “TACHIBANA” unloaded the cargo to the tanker barge, which shall transport the same to Del Pan Bridge in Pasig River and haul it by land to PGP’s storage tanks in Calamba, Laguna. Upon inspection by PGP, the samples taken from the shipment showed discoloration demonstrating that it was damaged. PGP then sent a letter where it formally made an insurance claim for the loss it sustained. Petitioner requested the GIT Insurance Adjusters, Inc. (GIT), to conduct a Quantity and Condition Survey of the shipment which issued a report stating that DOP samples taken were discolored. Inspection of cargo tanks showed manhole covers of ballast tanks’ ceilings loosely secured and that the rubber gaskets of the manhole covers of the ballast tanks reacted to the chemical causing shrinkage thus, loosening the covers and cargo ingress. Petitioner paid PGP the full and final payment for the loss and issued a Subrogation Receipt. Meanwhile, PGP paid the respondent the as full payment for the latter’s services. On 15 July 1991, an action for damages was instituted by the petitionerinsurer against respondentcarrier before the RTC. Respondent filed an answer which admitted that it undertook to transport the shipment, but alleged that before the DOP was loaded into its barge, the representative of PGP, Adjustment Standard Corporation, inspected it and found the same clean, dry, and fit for loading, thus accepted the cargo without any protest or notice. As carrier, no fault and negligence can be attributed against respondent as it exercised extraordinary diligence in handling the cargo. TC rendered a decision in favour of Plaintiff CA reversed ISSUES: 1. WON the Notice of Claim was filed within the required period; and if in the affirmative 2. WON the damage to the cargo was due to the fault or negligence of the respondent. HELD: Article 366 of the Code of Commerce has profound application in the case at bar, which provides that; “Within twentyfour hours following the receipt of the merchandise a claim may be made against the carrier on account of damage or average found upon opening the packages, provided that the indications of the damage or average giving rise to the claim cannot be ascertained from the exterior of said packages, in which case said claim shall only be admitted at the time of the receipt of the packages.” After the periods mentioned have elapsed, or 3
after the transportation charges have been paid, no claim whatsoever shall be admitted against the carrier with regard to the condition in which the goods transported were delivered. As to the first issue, the petitioner contends that the notice of contamination was given by PGP employee, to Ms. Abastillas, at the time of the delivery of the cargo, and therefore, within the required period. The respondent, however, claims that the supposed notice given by PGP over the telephone was denied by Ms. Abastillas. The Court of Appeals declared that a telephone call made to defendantcompany could constitute substantial compliance with the requirement of notice. However, it must be pointed out that compliance with the period for filing notice is an essential part of the requirement, i.e. immediately if the damage is apparent, or otherwise within twentyfour hours from receipt of the goods, the clear import being that prompt examination of the goods must be made to ascertain damage if this is not immediately apparent. We have examined the evidence, and We are unable to find any proof of compliance with the required period, which is fatal to the accrual of the right of action against the carrier. Nothing in the trial court’s decision stated that the notice of claim was relayed or filed with the respondentcarrier immediately or within a period of twentyfour hours from the time the goods were received. The Court of Appeals made the same finding. Having examined the entire records of the case, we cannot find a shred of evidence that will precisely and ultimately point to the conclusion that the notice of claim was timely relayed or filed. The requirement that a notice of claim should be filed within the period stated by Article 366 of the Code of Commerce is not an empty or worthless proviso. The object sought to be attained by the requirement of the submission of claims in pursuance of this article is to compel the consignee of goods entrusted to a carrier to make prompt demand for settlement of alleged damages suffered by the goods while in transport, so that the carrier will be enabled to verify all such claims at the time of delivery or within twentyfour hours thereafter, and if necessary fix responsibility and secure evidence as to the nature and extent of the alleged damages to the goods while the matter is still fresh in the minds of the parties. The filing of a claim with the carrier within the time limitation therefore actually constitutes a condition precedent to the accrual of a right of action against a carrier for loss of, or damage to, the goods. The shipper or consignee must allege and prove the fulfillment of the condition. If it fails to do so, no right of action against the carrier can accrue in favor of the former. The aforementioned 4
requirement is a reasonable condition precedent; it does not constitute a limitation of action. As discussed at length above, there is no evidence to confirm that the notice of claim was filed within the period provided for under Article 366 of the Code of Commerce. Petitioner’s contention proceeds from a false presupposition that the notice of claim was timely filed. Considering that we have resolved the first issue in the negative, it is therefore unnecessary to make a resolution on the second issue. (Meaning, since no notice of claim was filed in time, there can be no cause of action against the carrier for the loss or damage to the goods) iii. Saludo vs. CA (DORIA) DOCTRINE: Extraordinary diligence statutorily required to be observed by the carrier instantaneously commences upon delivery of the goods thereto, for such duty to commence there must in fact have been delivery of the cargo subject of the contract of carriage. PARTIES: Saludo Siblings (Petitioners) – Consignee Pomierski – Shipper TWA & PAL – Carrier CMAS – a national service used by undertakers to throughout the USA, they furnish the air pouch which the casket is enclosed in, make all the necessary arrangements such as flights, transfers, etc., and they see that the remains are taken to the proper air freight terminal FACTS: ● Pomierski and Son Funeral Home of Chicago brought the remains of Petitioners’ mother to Continental Mortuary Air Services (CMAS) after the former made the necessary preparations and arrangements and secured a permit for the disposition of dead human body. ● CMAS booked the shipment of the remains from Chicago to San Francisco by Trans World Airways (TWA), and from San Francisco to Manila with Philippine Airlines (PAL) through PAL’s agent, Air Care International. ● Before boarding the plane to San Francisco, Petitioners checked with the TWA counter if their mother’s remains have been loaded, they were told there was no body on that flight. ○ Reluctantly, Petitioners boarded the plane to San Francisco. 5
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Upon arrival, they checked with TWA about their mother’s remains but were told that they did not know anything about it. ● Petitioners called Pomierski, Pomierski immediately called CMAS. ○ CMAS said that the remains were on a plane to Mexico City. ○ It turned out that there were 2 bodies in the terminal and somehow the 2 bodies were switched. ● The shipment was immediately loaded on an American Airlines (AA) flight from Mexico to San Francisco, then loaded to a PAL flight for Manila. ○ The casket bearing the remains arrived in Manila a day after its expected arrival. ● Petitioners informed TWA of the misshipment and eventual delay in the delivery of the cargo and of the discourtesy of its employees. In a separate letter to PAL, Petitioners stated that they were holding PAL liable for the delay in delivery and would commence judicial action should no favorable explanation be given. ○ Both carriers denied liability. ○ A damage suit was filed before the CFI. ● CFI: absolved both airline companies of liability. ● CA: affirmed in toto. ISSUE: WON the airline carriers should be held liable. – NO HELD: The facts as found by the CFI and CA proves that the switching happened while the cargo was still with CMAS, well before the same was placed in the custody of the airlines. Hence, they cannot be held liable. ● October 26, 1976: cargo containing the casketed remains was booked for PAL Flight PR107, San Francisco for Manila on October 27; PAL Airway Bill was issued, not as evidence of receipt of delivery of the cargo but merely as a confirmation of the booking for the San FranciscoManila flight ● October 28, 1976: it was only on this day that PAL received physical delivery of the body (It is from this date that PAL became responsible for the cargo covered by the PAL Airway Bill.) ● When the cargo was received from CMAS at the Chicago airport terminal for shipment, Air Care International (PAL’s agent) and/or TWA, had no way of determining its actual contents, since the casket was hermetically sealed by the Philippine ViceConsul in Chicago and in an air pouch of C.M.A.S. ○ Air Care International and/or TWA had to rely on the information furnished by the shipper regarding the cargo's content.
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Neither could Air Care International and/or TWA open the casket for further verification, since they were not only without authority to do so, but even prohibited. ● No fault and/or negligence can be attributed to PAL and/or TWA, the entire fault or negligence being exclusively with CMAS Explicit is the rule under Article 1736 of the Civil Code that the extraordinary responsibility of the common carrier begins from the time the goods are delivered to the carrier and terminates only after the lapse of a reasonable time for the acceptance of the goods by the consignee or such other person entitled to receive them. ● This responsibility remains in full force and effect even when they are temporarily unloaded or stored in transit, unless the shipper or owner exercises the right of stoppage in transitu. ● There is delivery to the carrier when the goods are ready for and have been placed in the exclusive possession, custody and control of the carrier for the purpose of their immediate transportation and the carrier has accepted them. ● Where such a delivery has thus been accepted by the carrier, the liability of the common carrier commences eo instanti. Extraordinary diligence statutorily required to be observed by the carrier instantaneously commences upon delivery of the goods thereto, for such duty to commence there must in fact have been delivery of the cargo subject of the contract of carriage. ● Only when such fact of delivery has been unequivocally established can the liability for loss, destruction or deterioration of goods in the custody of the carrier, absent the excepting causes under Article 1734, attach and the presumption of fault of the carrier under Article 1735 be invoked. iv. Lorenzo Shipping vs. BJ Marthel (FRANCISCO) Note: Under this case, I found no ‘extraordinary diligence’ issue, the case is all about contracts. I guess, Atty. Ang misplaced this case. :)) “Diligence of a party is required in entering into a contract in order to minimize his/its own damages.” Parties: 1. Lorenzo Shipping Corporation (Lorenzo), petitioner ○ a domestic corporation engaged in coastwise shipping ○ buyer 7
2. BJ Marthel International, Inc. (Marthel), respondent ○ engaged in trading, marketing, and selling of various industrial commodities. ○ An importer/seller and distributor of different brands of engines and spare parts. Facts: ● Lorenzo used to own the cargo vessel M/V Dadiangas Express. ● From 1987 onwards, Marthel supplied Lorenzo with spare parts for the latter's marine engines. ● In 1989, Lorenzo asked Marthel for a quotation for various machine parts. ○ Acceding to this request, Marthel furnished Lorenzo with a formal quotation. ○ It was stipulated in the contract that DELIVERY is within 2 months after receipt of firm order. The TERMS is 25% upon delivery, balance payable in 5 bimonthly equal and Installment[s] not to exceed 90 days. ● On 02 November 1989, Lorenzo issued to Marthel Purchase Order. ○ For the procurement of one set of cylinder liner to be used for M/V Dadiangas Express repair. ○ Instead of paying the 25% down payment for the first cylinder liner, petitioner issued in favor of respondent ten postdated checks to be drawn against the former's account with Allied Banking Corporation. ● On 15 January 1990, Lorenzo again issued Purchase Order for yet another unit of cylinder liner. ○ This purchase order stated the term of payment to be "25% upon delivery, balance payable in 5 bimonthly equal installment[s]. ○ On 26 January 1990, respondent deposited petitioner's check that was postdated 18 January 1990, however, the same was dishonored by the drawee bank due to insufficiency of funds. (This check was supposedly the payment for the first ordered cylinder liner and not for the subsequent one.) ○ The remaining nine postdated checks were eventually returned by respondent to petitioner. ● However, the parties presented disparate accounts of what happened to the check which was previously dishonored. ○ Petitioner claimed that it replaced said check with a good one, the proceeds of which were applied to its other obligation to respondent. For its part, respondent insisted that it returned said postdated check to petitioner. ● On 20 April 1990, Pajarillo delivered the two cylinder liners at petitioner's warehouse in North Harbor, Manila. 8
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Due to the failure of the parties to settle the matter, Marthel filed an action for sum of money and damages before the RTC Makati City. ○ Alleging that despite its repeated oral and written demands, Lorenzo obstinately refused to settle its obligations. RTC: granted Marthel’s prayer for issuance of preliminary attachment and ordered lifting the levy on Lorenzo's properties and the garnishment of its bank accounts. Lorenzo, in its Answer alleging therein that time was of the essence in the delivery of the cylinder liners and that the delivery on 20 April 1990 of said items was late as respondent committed to deliver said items "within two (2) months after receipt of firm order" from petitioner. Prior to the commencement of trial, Lorenzo filed a Motion for Leave to Sell Cylinder Lines alleging that with the passage of time, the cylinder liners run at risk of obsolescence and deterioration to prejudice of the parties in the case and place the proceeds in escrow. ○ TC: granted the motion After the trial, TC dismissed the action and help Marthel bound to the quotation, Marthel appealed with CA ○ CA: reversed TC’s decision, Marthel could not have incurred delay in the delivery of cylinder lines as no demand, judicial, or extrajudicial was made by Lorenzo. Hence, the petition for review filed by Lorenzo.
Issue: 1. W/N Marthel incurred delay in performing its obligation under the contract of sale. 2. W/N the said contract was validly rescinded by Lorenzo. Held: 1. No. ○ The SC [affirmed Court of Appeals] held that Marthel could not have incurred delay in the delivery of cylinder liners as no demand, judicial or extrajudicial, was made by respondent upon petitioner in contravention of the express provision of Article 1169 of the Civil Code which provides: i. Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation.SC held that in the subject contracts, time was not of the essence. ○ The delivery of the cylinder liners on 20 April 1990 was made within a reasonable period of time considering that respondent had to 9
place the order for the cylinder liners with its principal in Japan and that the latter was, at that time, beset by heavy volume of work 2. No. ○
There having been no failure on the part of the Marthel to perform its obligation, the power to rescind the contract is unavailing to Lorenzo. Article 1191 of the New Civil Code runs as follows: i. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him. ○ The law explicitly gives either party the right to rescind the contract only upon the failure of the other to perform the obligation assumed thereunder. ○ There is no showing that Lorenzo notified Marthel to rescind the contract of sale between them. SC: Petiton denied, affirmed CA’s decision. v. Sealoader Shipping vs. Grand Cement Manufacturing (GATCHALIAN) (no specific extraordinary diligence discussed here also. The case focused on negligence) DOCTRINES: Negligence "the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do Contributory negligence conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection PARTIES: 1. Sealoader Shipping Corporation (Sealoader) engaged in the business of shipping and hauling cargo from one point to another using seagoing interisland barges. Owner of D/B Toploader 2. Grand Cement Manufacturing Corporation (now Taiheiyo Cement Philippines, Inc.) engaged in the business of manufacturing and selling cement through its authorized distributors and, for which purposes, it maintains its own private wharf in San Fernando, Cebu, Philippines. 3. Joyce Launch and Tug Co., Inc. (Joyce Launch) owned and operated the motor tugboat M/T Viper FACTS: 10
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SEALOADER executed a Time Charter Party Agreement with JOYCE LAUNCH. Sealoader chartered the M/T Viper in order to tow the its unpropelled barges for a minimum period of fifteen days from the date of acceptance, period can be renewed upon agreement. SEALOADER entered into a contract with GRAND CEMENT for the loading of cement clinkers and the delivery thereof to Manila D/B Toploader (a barge owned by Sealoader), arrived at the wharf of Grand Cement tugged by the M/T Viper. The D/B Toploader, however, was not immediately loaded with its intended cargo as the employees of Grand Cement were still loading another vessel, the Cargo Lift Tres. On April 4, 1994 Typhoon Bising struck the Visayas area. Public storm signal number 3 was raised over the province of Cebu. The D/B Toploader was, at that time, still docked at the wharf of Grand Cement. As the winds blew stronger and the waves grew higher, the M/T Viper tried to tow the D/B Toploader away from the wharf. The efforts of the tugboat were foiled, however, as the towing line connecting the two vessels snapped. This occurred as the mooring lines securing the D/B Toploader to the wharf were not cast off. The following day, the employees of Grand Cement discovered the D/B Toploader situated on top of the wharf, apparently having rammed the same and causing significant damage thereto. Grand Cement filed a complaint for Damages against (1) Sealoader; (2) Romulo Diantan, the captain of M/T Viper; and (3) Johnny Ponce, the barge patron of the d/B Toploader. Later on it filed an Amended Complaint and impleaded (4) Joyce Launch ○ Grand Cement’s contention: After receiving the weather updates, Grand Cement advised Diantan and Ponce to move their respective vessels away from its wharf but the men refused to do so. ○ Sealoader’s Answer to the Complaint: Brought up the delay of the loading due to the loading of another vessel. In addition, it pointed out that the damage was due to a typhoon, a force majeure hence, beyond its control ○ Joyce Launch’s Answer to the Amended Complaint: damage was caused by the typhoon. If the loading was done on schedule, the incident would have been avoided Sealoader filed a Crossclaim against (1) Joyce Launch and (2) Romulo Diantan. M/T Viper was under the complete control of Joyce Launch thru Diantan. Sealoader contends that Joyce Launch has the sole duty to secure the 2 vessels in order to avoid any damages that may cause. ○ Joyce Launch’s Answer: Damage was due to the typhoon. Contended that Grand Cement allegedly abandoned the wharf, thus, leaving the crew of the M/T Viper helpless in preventing the D/B Toploader from ramming the wharf. Joyce Launch likewise faulted Grand Cement’s employees for not warning the crew of the M/T Viper early on to seek refuge from the typhoon. 11
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Trial ensued. Several persons were presented as witnesses to prove their respective claims.
RTC: In favor of Grand Cement. Sealoader, Joyce Launch and Ponce e solidarily liable. (NOTE: Diantan was dropped as a defendant because summons cannot be served since he’s working in abroad) ● The defendants’ negligence can be shown from their acts or omissions, thus: they did not take any precautionary measure as demanded or required of them in complete disregard of the public storm signal or warning; the master or captain or the responsible crew member of the vessel was not in the vessel, hence, nobody could make any move or action for the safety of the vessel at such time of emergency or catastrophe; and the vessel was not equipped with a radio or any navigational communication facility, which is a mandatory requirement for all navigational vessels. *Sealoader appealed. Joyce Lauch and Ponce no longer questioned the court’s decision CA: Still in favor of Grand Cement MR was filed by Sealoader. CA issued an Amended Decision: Grand Cement was guilty of contributory negligence ● Grand Cement did not take any precaution to avoid the damages wrought by the storm. Grand Cement waited until the last possible moment before informing Sealoader and Joyce about the impending storm. In fact, it continued loading on another vessel. It is no wonder that Sealoader did not immediately move away from the pier since the owner of the pier, Grand Cement, was continuing to load another vessel despite the fast approaching storm. In totality, we find that Grand Cement also did not exercise due diligence in this case and that its conduct contributed to the damages that it suffered. ISSUE: Who, among the parties in this case, should be held liable for the damage sustained by the wharf of Grand Cement? SEALOADER ALONE. HELD: The Court finds that Sealoader was indeed guilty of negligence in the conduct of its affairs during the incident in question. ● Grand Cement that there was either no radio on board the D/B Toploader, the radio was not fully functional, or the head office of Sealoader was negligent in failing to attempt to contact the D/B Toploader through radio. Either way, this negligence cannot be ascribed to anyone else but Sealoader. ● Manifest laxity of the crew of D/B Toploader in monitoring the weather. Despite the apparent difficulty in receiving weather bulletins from the head office of 12
Sealoader, the evidence on record suggests that the crew of the D/B Toploader failed to keep a watchful eye on the prevailing weather conditions. ● Acosta, the clearing officer of Sealoader relied on the assurances of the M/T Beejay crew and the opinion of Romulo Diantan regarding the weather condition. ● Sealoader cannot pass to Grand Cement the responsibility of casting off the mooring lines connecting the D/B Toploader to the wharf. The Court agrees with the ruling of the Court of Appeals in the Decision that the people at the wharf could not just cast off the mooring lines without any instructions from the crew of the D/B Toploader and the M/T Viper Grand Cement was NOT guilty of negligent acts, which contributed to the damage that was incurred on its wharf. ● The Court holds that Sealoader had the responsibility to inform itself of the prevailing weather conditions in the areas where its vessel was set to sail. Sealoader cannot merely rely on other vessels for weather updates and warnings on approaching storms, as what apparently happened in this case. Common sense and reason dictates this. To do so would be to gamble with the safety of its own vessel, putting the lives of its crew under the mercy of the sea, as well as running the risk of causing damage to the property of third parties for which it would necessarily be liable. d. Duration of responsibility (Delivery of goods to common carrier; Actual or constructive delivery; Temporary unloading or storage) i.
Lu Do & Lu Ym Corporation vs. Binamira (HAUTEA)
Doctrine: The carrier does not assume liability for any loss or damage to the goods once they have been "taken into the custody of customs or other authorities", or when they have been delivered at ship's tackle. Facts: Delta Photo (New York based company) shipped on board M/S FERNSIDE (6) cases of films and photographic supplies consigned to BINAMIRA. When the ship arrived at the port of Cebu, the shipment was placed in the custody of Visayan Cebu Terminal Company (Arrastre). LU DO CORPORATION (Agent of the Carrier) hired Cebu Stevedoring to unload cargo. Both the stevedoring and arrastre company made a list of bad cargo on board. The shipment in question, was not included in the report of bad order cargo of both checkers, indicating that it was discharged from the, ship in good order and condition. 13
When BINAMIRA got hold of the cargo, the cases showed signs of pilferage. It was later found out that films and photographic supplies were missing valued at P324.63 The ruled that the carrier was liable stating that; In this jurisdiction, a common carrier has the legal duty to deliver goods to a consignee in the same condition in which it received them. Except where the loss, destruction or deterioration of the merchandise was due to any of the cases enumerated in Article 1734 of the new Civil Code, a carrier is presumed to have been at fault and to have acted negligently, unless it could prove that it observed extraordinary diligence in the care and handling of the goods (Article 1735, supra). Such presumption and the liability of the carrier attach until the goods are delivered actually or constructively, to the consignee, or to the person who has a right to receive them (Article 1736, supra), and we believe delivery to the customs authorities is not the delivery contemplated by Article 1736, supra, in connection with second paragraph of Article 1498, supra, because, in such a case, the goods are then still in the hands of the Government and their owner could not exercise dominion whatever over them until the duties are paid. In the case at bar, the presumption against the carrier, represented appellant as its agent, has not been successfully rebutted.
Issue & Held: 1. Whether the CA erred in its decision? YES. The provisions cited by the Court of Appeals only apply when the loss, destruction or deterioration takes place while the goods are in the possession of the carrier, and not after it has lost control of them. While the goods are in its possession, it is but fair that it exercise extraordinary diligence in protecting them from damage, and if loss occurs, the law presumes that it was due to its fault or negligence. This is necessary to protect the interest the interest of the owner who is at its mercy. The situation changes after the goods are delivered to the consignee. While we agree with the Court of Appeals that while delivery of the cargo to the consignee, or to the person who has a right to receive them", contemplated in Article 1736, because in such case the goods are still in the hands of the Government and the owner cannot exercise dominion over them, we believe however that the parties may agree to limit the liability of the carrier considering that the goods have still to through the inspection of the customs authorities before they are actually turned over to the consignee. This is a situation where we may say that the carrier losses control of the goods because of a custom regulation and it is unfair that it be made responsible for what may happen during the interregnum. And this is precisely what was done by the parties herein. In the bill of lading that was issued covering the shipment in question, both the carrier and the consignee have stipulated to limit the responsibility of the carrier for the loss or damage the carrier does not assume liability for any loss or damage to the goods once they have been "taken into the custody of customs or other authorities", or when they have been delivered at ship's tackle. 14
ii.
Servando, et al., vs. Philippine Steam Navigation (LESAVA)
Doctrine: ● A 'caso fortuito' presents the following essential characteristics: (1) the cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; (2) it must be impossible to foresee the event which constitutes the 'caso fortuito', or if it can be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (4) the obligor must be free from any participation in the aggravation of the injury resulting to the creditor. ● Where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligor is exempt from liability for nonperformance. Synopsis: There was a fire in the Bureau of Customs’ warehouse. Parties: Bureau of Customs Appellant (Carrier): Philippine Steam Navigation Appellees: Clara Uy Bico and Amparo Servando Facts: ● Appellees loaded on board appellant’s vessel (FS176) carriage from Manila to Negros Occidental. ○ Bico → 1,528 cavans of rice ○ Servando → cartons of colored paper, toys and general merchandise ● Upon arrival of the vessel at Negros Occidental, the cargoes were discharged complete and in good order. ● That afternoon of the same day, said warehouse was razed by a fire of unknown origin, destroying appellees' cargoes. ● Before the fire, Clara Uy Bico was able to take delivery of 907 cavans of rice (which claim for value of said goods was rejected by Appellant). ● The court a quo held that the delivery of the shipment in question to the warehouse of the Bureau of Customs is not the delivery contemplated by Article 1736; and since the burning of the warehouse occurred before actual or constructive delivery of the goods to the appellees, the loss is chargeable against the appellant. Issue: WON carrier should be responsible? Held: YES. Since the burning of the customs warehouse was an extraordinary event which happened independently of the will of the appellant and the latter could not have foreseen the event, Appellant is discharged from any liability. Furthermore, there is a stipulation in the contract absolving carrier from responsibility for fortuitous events which the law allows as long as the parties insert stipulations not contrary to law, morals or public policy. 15
In the bills of lading issued for the cargoes in question, the parties agreed to limit the responsibility of the carrier for the loss or damage that may be caused to the shipment by inserting therein the following stipulation: Clause 14. Carrier shall not be responsible for loss or damage to shipments billed 'owner's risk' unless such loss or damage is due to negligence of carrier. Nor shall carrier be responsible for loss or damage caused by force majeure, dangers or accidents of the sea or other waters; war; public enemies; . . . fire . ... The agreement contained in the above quoted Clause 14 is a mere iteration of the basic principle of law written in Article 1 1 7 4 of the Civil Code: Article 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable. Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligor is exempt from liability for nonperformance. The Partidas, the antecedent of Article 1174 of the Civil Code, defines 'caso fortuito' as 'an event that takes place by accident and could not have been foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers.' There is nothing in the record to show that appellant carrier ,incurred in delay in the performance of its obligation. It appears that appellant had not only notified appellees of the arrival of their shipment, but had demanded that the same be withdrawn. In fact, pursuant to such demand, appellee Uy Bico had taken delivery of 907 cavans of rice before the burning of the warehouse. Nor can the appellant or its employees be charged with negligence. The storage of the goods in the Customs warehouse pending withdrawal thereof by the appellees was undoubtedly made with their knowledge and consent. Since the warehouse belonged to and was maintained by the government, it would be unfair to impute negligence to the appellant, the latter having no control whatsoever over the same. iii. Mitsui Lines vs. CA (LIM) DOCTRINE: "Loss", within the ambit of S3(6) of the COGSA refers to the deterioration or disappearance of goods. As defined in the Civil Code and as applied to S3(6), P4 of the 16
COGSA, "loss" contemplates merely a situation where no delivery at all was made by the shipper of the goods because the same had perished, gone out of commerce, or disappeared in such a way that their existence is unknown or they cannot be recovered. The deterioration of goods due to delay in their transportation constitutes "loss" or "damage" within the meaning of S3. FACTS: Petitioner Mitsui O.S.K. Lines Ltd. is a foreign corporation represented in the Philippines by its agent, Magsaysay Agencies. It entered into a contract of carriage through Meister Transport, Inc., an international freight forwarder, with private respondent Lavine Loungewear Manufacturing Corporation to transport goods of the latter from Manila to Le Havre, France. Petitioner undertook to deliver the goods to France 28 days from initial loading. On July 24, 1991, petitioner’s vessel loaded private respondent’s container van for carriage at the said port of origin. However, in Kaoshiung, Taiwan the goods were not transshipped immediately, with the result that the shipment arrived in Le Havre only on November 14, 1991. The consignee allegedly paid only half the value of the said goods on the ground that they did not arrive in France until the “off season” in that country. The remaining half was allegedly charged to the account of private respondent which in turn demanded payment from petitioner through its agent. Petitioner denied private respondent’s claim. The latter filed a case in the RTC in April 1992. In the original complaint, private respondent impleaded as defendants Meister Transport, Inc. and Magsaysay Agencies, Inc., the latter as agent of petitioner Mitsui O.S.K. Lines Ltd. In May 1993, it amended its complaint by impleading petitioner as defendant in lieu of its agent. The parties to the case thus became private respondent as plaintiff, on one side, and Meister Transport Inc. and petitioner Mitsui O.S.K. Lines Ltd. as represented by Magsaysay Agencies, Inc., as defendants on the other. Petitioner filed a motion to dismiss alleging that the claim against it had prescribed under the Carriage of Goods by Sea Act. RTC denied petitioner’s motion as well as its subsequent motion for reconsideration. On petition for certiorari, the Court of Appeals sustained the trial court’s orders. Hence this petition. 17
ISSUE: W/N private respondent’s action is for “loss or damage” to goods shipped, within the meaning of S3(6) of the Carriage of Goods by Sea Act (COGSA). HELD: "Loss", within the ambit of S3(6) of the COGSA refers to the deterioration or disappearance of goods. As defined in the Civil Code and as applied to S3(6), P4 of the COGSA, "loss" contemplates merely a situation where no delivery at all was made by the shipper of the goods because the same had perished, gone out of commerce, or disappeared in such a way that their existence is unknown or they cannot be recovered. The deterioration of goods due to delay in their transportation constitutes "loss" or "damage" within the meaning of S3. Whatever damage or injury is suffered by the goods while in transit would result in loss or damage to either the shipper or the consignee. As long as it is claimed that the losses or damages suffered by the shipper or consignee were due to the arrival of the goods in damaged or deteriorated condition, the action is still basically one for damage to the goods. The damages suffered by him as a result of the delay in the shipment of his cargo are not covered by the prescriptive provision of the COGSA above referred to, if such damages were due, not to the deterioration and decay of the goods while in transit, but to other causes independent of the condition of the cargo upon arrival, like a drop in their market value, for example. In the case at bar, there is neither deterioration nor disappearance nor destruction of goods caused by the carrier's breach of contract. Whatever reduction there may have been in the value of the goods is not due to their deterioration or disappearance because they had been damaged in transit. Precisely, the question before the trial court is not the particular sense of "damages" as it refers to the physical loss or damage of a shipper's goods as specifically covered by §3(6) of COGSA but Mitsui's potential liability for the damages it has caused in the general sense and, as such, the matter is governed by the Civil Code, the Code of Commerce and COGSA, for the breach of its contract of carriage with Lavine. iv. Philippine First Insurance vs. Wallem First Shipping (MORA) The extraordinary responsibility of the common carrier lasts from the time the goods are unconditionally placed in the possession of, and received by the carrier for transportation until the same are delivered, actually or constructively, by the carrier to the consignee, or to the person who has a right to receive them. 18
FACTS: Anhui Chemicals Import & Export Corporation loaded on board M/S Offshore Master a shipment consisting of 10,000 bags of sodium sulphate anhydrous, complete and in good order for transportation to and delivery at the port of Manila for consignee, L.G. Atkimson ImportExport, Inc. covered by a Clean Bill of Lading. The Owner and/or Charterer of M/V Offshore Master is unknown while the shipper of the shipment is Shanghai Fareast Ship Business Company. Both are foreign firms doing business in the Philippines, thru its local ship agent, respondent Wallem Philippines Shipping, Inc. The shipment arrived at the port of Manila. It was disclosed during the discharge of the shipment from the carrier that 2,426 poly bags were in bad order and condition, having sustained various degrees of spillages and losses. This is evidenced by the Turn Over Survey of Bad Order Cargoes of the arrastre operator, Asian Terminals, Inc. The bad state of the bags is also evinced by the arrastre operator’s Request for Bad Order Survey. Asia Star Freight Services undertook the delivery from the pier to the consignee’s warehouse where it was found and noted that the bags had been discharged in damaged and bad order condition. Herein petitioner is the insurer of the goods. It filed an action for damages after its formal demand for payment of lost goods to Wallem remain unanswered and unsettled. RTC ordered respondents to pay petitioner. It attributed the damage and losses sustained by the shipment to the arrastre operator’s mishandling the discharge of the shipment. Since both of the the arrastre operator and common carrier are charged with and obligated to deliver the goods in good order condition to the consignee, it ruled that they are solidarily liable for the payment of damages. CA reversed the ruling. There is no solidary liability because the damage to the goods are attributed to the mishandling by the arrastre operator in the discharge of the shipment. In their petition for review to the SC, It is undisputed that the damage or losses were incurred by the shipment during the unloading. What is disputed is who should be liable for the damage incurred at that point of transport. ISSUE: Whether the carrier should be held solidarily liable for the cost of the damaged shipment? 19
HELD: YES. In resolving the issue the court cited the following laws and doctrines: Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods transported by them. Subject to certain exceptions enumerated under Article 1734 of the Civil Code, common carriers are responsible for the loss, destruction, or deterioration of the goods. The extraordinary responsibility of the common carrier lasts from the time the goods are unconditionally placed in the possession of, and received by the carrier for transportation until the same are delivered, actually or constructively, by the carrier to the consignee, or to the person who has a right to receive them. For marine vessels, Article 619 of the Code of Commerce provides that the ship captain is liable for the cargo from the time it is turned over to him at the dock or afloat alongside the vessel at the port of loading, until he delivers it on the shore or on the discharging wharf at the port of unloading, unless agreed otherwise. In Standard Oil Co. of New York v. Lopez Castelo, the Court interpreted the ship captain’s liability as ultimately that of the shipowner by regarding the captain as the representative of the ship owner. Lastly, Section 2 of the COGSA provides that under every contract of carriage of goods by sea, the carrier in relation to the loading, handling, stowage, carriage, custody, care, and discharge of such goods, shall be subject to the responsibilities and liabilities and entitled to the rights and immunities set forth in the Act. Section 3 (2) thereof then states that among the carriers’ responsibilities are to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.
The above doctrines are in fact expressly incorporated in the bill of lading between the shipper Shanghai Fareast Business Co., and the consignee, to wit: 4. PERIOD OF RESPONSIBILITY. The responsibility of the carrier shall commence from the time when the goods are loaded on board the vessel and shall cease when they are discharged from the vessel. The Carrier shall not be liable of loss of or damage to the goods before loading and after discharging from the vessel, howsoever such loss or damage arises.
The Court also discussed that the functions of an arrastre operator involve the handling of cargo deposited on the wharf or between the establishment of the consignee or shipper and the ship's tackle. Being the custodian of the goods discharged from a vessel, an arrastre operator's duty is to take good care of the goods and to turn them over to the party entitled to their possession.
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Handling cargo is mainly the arrastre operator's principal work so its drivers/operators or employees should observe the standards and measures necessary to prevent losses and damage to shipments under its custody.
In Fireman’s Fund Insurance Co. v. Metro Port Service, Inc. the Court explained the relationship and responsibility of an arrastre operator to a consignee of a cargo, to quote: The legal relationship between the consignee and the arrastre operator is akin to that of a depositor and warehouseman. The relationship between the consignee and the common carrier is similar to that of the consignee and the arrastre operator. Since it is the duty of the ARRASTRE to take good care of the goods that are in its custody and to deliver them in good condition to the consignee, such responsibility also devolves upon the CARRIER. Both the ARRASTRE and the CARRIER are therefore charged with and obligated to deliver the goods in good condition to the consignee.
Thus, the Court agrees to CA’s holding that an arrastre operator and carrier may not be held solidarily liable at all times. To answer the question” who had custody of the shipment during the unloading from the vessel, the court discussed: The aforementioned Section 3(2) of the COGSA states that among the carriers’ responsibilities are to properly and carefully load, care for and discharge the goods carried. The bill of lading covering the subject shipment likewise stipulates that the carrier’s liability for loss or damage to the goods ceases after its discharge from the vessel. Article 619 of the Code of Commerce holds a ship captain liable for the cargo from the time it is turned over to him until its delivery at the port of unloading. In a case decided by a U.S. Circuit Court, Nichimen Company v. M./V. Farland, it was ruled that like the duty of seaworthiness, the duty of care of the cargo is nondelegable, and the carrier is accordingly responsible for the acts of the master, the crew, the stevedore, and his other agents. It has also been held that it is ordinarily the duty of the master of a vessel to unload the cargo and place it in readiness for delivery to the consignee, and there is an implied obligation that this shall be accomplished with sound machinery, competent hands, and in such manner that no unnecessary injury shall be done thereto. And the fact that a consignee is required to furnish persons to assist in unloading a shipment may not relieve the carrier of its duty as to such unloading The exercise of the carrier’s custody and responsibility over the goods during the unloading actually transpired in teh instant case during the unloading of teh shipment as testified by Mr. Talens, the cargo surveyor. He testified that checker of the vessel of Wallem Philippines hired the services of the stevedores and that the master of the vessel was observing and supervising the discharging operation of the cargo. The checker is an employee of Wallem. He also testified that he noted in the Bad Order Inspection that “the bad order torn bags, was due to 21
stevedores utilizing steel hooks/spikes in piling the cargo to the pallet board at the vessel’s cargo holds and at the pier designated area before and after discharged that causes the bags to be torn.” The records are replete with evidence which show that the damage to the bags happened before and after their discharge and it was caused by the stevedores of the arrastre operator who were then under the supervision of Wallem. It is settled in maritime law jurisprudence that cargoes while being unloaded generally remain under the custody of the carrier. In the instant case, the damage or losses were incurred during the discharge of the shipment while under the supervision of the carrier. Consequently, the carrier is liable for the damage or losses caused to the shipment. As the cost of the actual damage to the subject shipment has long been settled, the trial court’s finding of actual damages in the amount has to be sustained. e. Presumption of negligence i. Loadmasters Customs Services, Inc., vs. Glodel Brokerage Corporation, et al (SUPAPO) (Trucking Service provider v. Customs broker and Insurance Company) PARTIES: Trucking Service Provider – Loadmasters (Common Carrier) Customs Broker – Glodel (Common Carrier) Insurance – R&B Insurance Corporation Extra (not a party in the case): Owner of the cargoes – Columbia Wire and Cable Corp. CAUSES OF ACTION: Quasidelict between Loadmasters and R&B Culpa Contractual between Loadmasters and Glodel DOCTRINES: COMMON CARRIER; QUASIDELICT; Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumption juris tantum that the employer failed to exercise diligentissimi patris family in the selection (culpa in eligiendo) or supervision (culpa in vigilando) of its employees.
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SAME; SAME; Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. FACTS: 1. 132 bundles of electric copper cathodes owned by Columbia were shipped from Leyte and arrived at Pier 10, North Harbor, Mla on the same day. 2. The cargoes were insured by R&B against all risks. 3. Columbia engaged the services of Glodel for the release and withdrawal of the cargoes from the pier and the subsequent delivery to its warehouses/plants. 4. Glodel, in turn, subcontracted Loadmasters (contract of affreightment) to transport the cargoes to Columbia’s warehouse/plants in Bulacan and Valenzuela City. 5. The goods were loaded on board 12 trucks owned by Loadmasters, driven by its employed drivers and accompanied by its employed truck helpers. 6. 6 truckloads were to be delivered to Bulacan and 6 truckloads for Valenzuela City. 7. However, one of the truckloads en route to Bulacan never reached its destination as it was hijacked or robbed and was later on recovered without the copper cathodes. 8. Accordingly, Columbia claimed for insurance indemnity against R&B, which the latter paid. 9. Thereafter, R&B filed a complaint for damages against Loadmasters and Glodel. RTC: Only Glodel was liable to R&B. Loadmasters’ counterclaim against R&B was dismissed CA: (Glodel and R&B appealed) Loadmasters was held as an agent of Glodel. As such, solidarily liable with R&B. Loadmasters’ contention: It should not be held liable for damages, as it was never privy to the contract between Glodel and Columbia or R&B as subrogee ISSUE: Whether Loadmasters is liable to R&B together with Glodel? 23
HELD: YES! The court held that although Loadmasters may not have direct contractual relation with Columbia, it is still liable for tort under Article 2176 NCC on quasidelicts. As enunciated in Mindanao Terminal and Brokerage Service Inc. v. Phoenix Assurance Company of New York, a tort may arise despite the absence of a contractual relationship. In connection therewith, Article 2180 provides: ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. x x x x Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.
It is not disputed that the subject cargo was lost while in the custody of Loadmasters whose employees (truck driver and helper) were instrumental in the hijacking or robbery of the shipment. As employer, Loadmasters should be made answerable for the damages caused by its employees who acted within the scope of their assigned task of delivering the goods safely to the warehouse. Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection (culpa in eligiendo) or supervision (culpa in vigilando) of its employees. To avoid liability for a quasidelict committed by its employee, an employer must overcome the presumption by presenting convincing proof that he exercised the care and diligence of a good father of a family in the selection and supervision of his employee. In this regard, Loadmasters failed. Glodel is also liable because of its failure to exercise extraordinary diligence. It failed to ensure that Loadmasters would fully comply with the undertaking to safely transport the subject cargo to the designated destination. It should have been more prudent in entrusting the goods to Loadmasters by taking precautionary measures, such as providing escorts to accompany the trucks in delivering the cargoes. Glodel should, therefore, be held liable with Loadmasters. Its defense of force majeure is unavailing. 24
ii.
Indeed, Glodel and Loadmasters are solidarily liable to R&B. FGU Insurance vs. CA (VELASCO)
Shipper – Anco Enterprise Company Consignee – SMC Insurer – FGU Insurance Corporation Facts Anco Enterprises Company (ANCO) was engaged in the shipping business. It owned the M/T ANCO tugboat and the D/B Lucio barge which were operated as common carriers. Since the D/B Lucio had no engine of its own, it could not maneuver by itself and had to be towed by a tugboat for it to move from one place to another. San Miguel Corporation (SMC) shipped beers from Mandaue City, Cebu, on board the D/B Lucio, for towage by M/T ANCO. Upon arrival at San Jose, Antique, the tugboat M/T ANCO left the barge immediately. When the barge and tugboat arrived at San Jose, Antique, the clouds over the area were dark and the waves were already big. The arrastre workers unloading the cargoes of SMC on board the D/B Lucio began to complain about their difficulty in unloading the cargoes. SMC’s District Sales Supervisor, Fernando Macabuag, requested ANCO’s representative to transfer the barge to a safer place because the vessel might not be able to withstand the big waves. ANCO’s representative did not heed the request because he was confident that the barge could withstand the waves. Only part of the cargo was unloaded because of the big waves. During the evening, the barge’s rope, which was attached to the wharf, got cut off by the waves and the barge sunk. The remaining cargoes of beer were swept into the ocean. SMC filed a complaint for Breach of Contract of Carriage and Damages against ANCO. ANCO claimed that it had an agreement with SMC that ANCO would not be liable for any losses or damages resulting to the cargoes by reason of fortuitous event. Since the cases of beer were lost by reason of a storm, a fortuitous event which battered and sunk the vessel in which they were loaded, they should not be held liable. ANCO further asserted that there was an agreement between them and SMC to insure the cargoes in order to recover indemnity in case of loss. 25
Pursuant to that agreement, 20,000 cases were insured with FGU Insurance Corporation (FGU). ANCO filed a ThirdParty Complaint against FGU. FGU admitted the existence of the Insurance Policy but maintained that the alleged loss of the cargoes covered by the said insurance policy cannot be attributed directly or indirectly to any of the risks insured against in the said insurance policy. According to FGU, it is only liable under the policy to ANCO and/or SMC in case of any of the following: a) total loss of the entire shipment; b) loss of any case as a result of the sinking of the vessel; or c) loss as a result of the vessel being on fire. FGU also alleged that ANCO and SMC failed to exercise ordinary diligence or the diligence of a good father of the family in the care and supervision of the cargoes insured to prevent its loss and/or destruction. RTC: ANCO is liable to SMC. FGU is liable to bear 53% of the amount of lost cargoes. (ANCO liability) The cargoes were lost due to fortuitous event. There was failure on ANCO’s part to observe the degree of diligence required. (FGU liability) The risk insured against was the cause of the loss of cargoes. CA: Affirmed TC decision Issues 1. Is ANCO liable by being negligent? YES 2. Is FGU liable? NO SC 1. YES (EXTRAORDINARY DILIGENCE ISSUE) ANCO’s representatives failed to exercise the extraordinary degree of diligence required by the law to exculpate them from liability for the loss of the cargoes. First, ANCO admitted that they failed to deliver to the designated consignee 29,210 cases of Pale Pilsen and Five Hundred Fifty 550 cases of Cerveza Negra. Second, the barge D/B Lucio had no engine of its own and could not maneuver by itself. Yet, the patron of ANCO’s tugboat M/T ANCO left it to fend for itself even 26
when there are signs of the impending storm. Since it is the duty of the defendant to exercise and observe extraordinary diligence in the vigilance over the cargo of the plaintiff, the patron or captain of M/T ANCO could have placed D/B Lucio in a very safe location before they left knowing or sensing at that time the coming of a typhoon. ANCO, therefore, through their representatives, failed to observe the degree of diligence required of them under the provision of Art. 1733. (FORTUITOUS EVENT ISSUE) ANCO claims that the loss of the cargoes was caused by the typhoon Sisang, a fortuitous event (caso fortuito), and there was no fault or negligence on their part. Art. 1733. Common carriers, from the nature of their business and for reasons of public policy are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. Such extraordinary diligence in vigilance over the goods is further expressed in Articles 1734, 1735, and 1745 Nos. 5, 6, and 7 . . . Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same is due to any of the following causes only: (1) Flood, storm, earthquake, lightning, or other natural disaster or calamity; Art. 1739. In order that the common carrier may be exempted from responsibility, the natural disaster must have been the proximate and only cause of the loss. However, the common carrier must exercise due diligence to prevent or minimize loss before, during and after the occurrence of flood, storm, or other natural disaster in order that the common carrier may be exempted from liability for the loss, destruction, or deterioration of the goods . . . (Emphasis supplied) Caso fortuito or force majeure by definition, are extraordinary events not foreseeable or avoidable, events that could not be foreseen, or which though foreseen, were inevitable. In this case, the calamity which caused the loss of the cargoes was not unforeseen nor was it unavoidable. In fact, the other vessels in the port of San Jose, Antique, managed to transfer to another place, a circumstance which prompted SMC’s District Sales Supervisor to request that the D/B Lucio be likewise transferred, but to no avail. The D/B Lucio had no engine and could not maneuver by itself. Even if ANCO’s representatives wanted to transfer it, they no longer had any means to do so as the tugboat M/T ANCO had already departed, 27
leaving the barge to its own devices. The captain of the tugboat should have had the foresight not to leave the barge alone considering the pending storm. While the loss of the cargoes was admittedly caused by the typhoon Sisang, a natural disaster, ANCO could not escape liability to respondent SMC. The records clearly show the failure of petitioners’ representatives to exercise the extraordinary degree of diligence mandated by law. To be exempted from responsibility, the natural disaster should have been the proximate and only cause of the loss. There must have been no contributory negligence on the part of the common carrier. 2. NO (ORDINARY NEGLIGENCE V. GROSS NEGLIGENCE) One of the purposes for taking out insurance is to protect the insured against the consequences of his own negligence and that of his agents. The carelessness and negligence of the insured or his agents constitute no defense on the part of the insurer. This rule however presupposes that the loss has occurred due to causes which could not have been prevented by the insured, despite the exercise of due diligence. The question now is whether there is a certain degree of negligence that will deprive the insured the right to recover under the insurance contract. In this case, there is. However, when evidence show that the insured’s negligence or recklessness is so gross as to be sufficient to constitute a willful act, the insurer must be exonerated. From US case decisions, the US Supreme Court has made a distinction between ordinary negligence and gross negligence or negligence amounting to misconduct and its effect on the insured’s right to recover under the insurance contract. According to the Court, while mistake and negligence of the master or crew are incident to navigation and constitute a part of the perils that the insurer is obliged to incur, such negligence or recklessness must not be of such gross character as to amount to misconduct or wrongful acts; otherwise, such negligence shall release the insurer from liability under the insurance contract. In the case at bar, both the trial court and the appellate court had concluded from the evidence that the crewmembers of both the D/B Lucio and the M/T ANCO were blatantly negligent. Taking into account the circumstances present in the instant case, the blatant negligence of ANCO’s employees is of such gross character that it amounts to a 28
f.
wrongful act which must exonerate FGU from liability under the insurance contract. Exempting causes, defenses and conditions i. Natural disaster 1. Eastern Shipping Lines, Inc., vs. IAC (BUENAVENTURA) DOCTRINE: Common carriers are responsible for the loss, destruction, or deterioration of the goods unless it is due to the following: events: flood, storm, earthquake, lightning, or other natural disaster or calamity. FACTS: On June, 1977 M/S ASIATICA, a Vessel operated by Eastern Shipping Lines was bound for Manila from Kobe, Japan. It loaded, 5,000 pieces of colorized lance pipes in 28 packages valued at P256,039.00 consigned to Philippine Blooming Mills Co., Inc., and 7 cases of spare parts valued at P92,361.75, consigned to Central Textile Mills, Inc. Both were insured from marine risks with Development Insurance and Surety Corp. It also took 128 cartoons of garment fabrics and accessories in 2 containers consigned to Mariveles Apparel Corp and 2 Cases of surveying instruments consigned to Aman Enterprises and General Merchandise. The shipments were insured with DOWA Fire and Marine Insurance Co. and Nisshin Fire and marine Insurance Co. respectably. En Route from Kobe to Manila the vessel caught fire and sank losing all its shipment. The insurance companies paid for the insurance of the above mentioned shipments. They then instituted a case to redeem the insurance that they paid to the various companies against Eastern Shipping Lines. They contend that Eastern should not be exempted from liability because it was not able to exercise due diligence in preventing the occurrence of the fire as well as its unseaworthiness. Eastern Shipping invoked the Carriage of Goods by Sea Act as a defense wherein it is said to be exempt from the said liability. The Fire was said to be one of the exempting circumstance under the act. It also contended that it the fire occurred as a fortuitous event such as a natural disaster or calamity which leads them to conclude that they should not be made liable. Trial Court rendered judgment in favor of Development Insurance. CA affirmed. ISSUE: WON Petitioner Carrier is liable for the loss of the cargo 29
HELD: YES. Having failed to discharge the burden of proving that it had exercised the extraordinary diligence required by law, Petitioner Carrier cannot escape liability for the loss of the cargo. Common carriers are bound to observe extraordinary diligence when transporting goods. Common carriers are responsible for the loss, destruction, or deterioration of the goods unless it is due to the following: events: flood, storm, earthquake, lightning, or other natural disaster or calamity. In this case fire may not be considered a natural disaster or calamity. It does not fall within the category of an act of God unless caused by lightning or by other natural disaster or calamity. It may even be caused by the actual fault or privity of the carrier. This is because the occurrence may be due to an act by man or the actual fault of the carrier. The common carrier is presumed to have been at fault or have acted negligently unless it proves that it has observed the extraordinary diligence required by law. Evidence presented by the witness failed to establish the extraordinary diligence which was required of the carrier. The fire started 24 hours before discovery and upon discovery it was already too big to suppress. It appears that after the cargoes were stored no regular inspections were done to see to it that the cargoes are well kept. The crew could not even explain how the fire started. Because of this the carrier was not able to prove that it has exercised extraordinary diligence making it liable of the costs and damages. Even if fire were to be considered a "natural disaster" within the meaning of Article 1734 of the Civil Code, it is required under Article 1739 of the same Code that the "natural disaster" must have been the "proximate and only cause of the loss," and that the carrier has "exercised due diligence to prevent or minimize the loss before, during or after the occurrence of the disaster" This Petitioner Carrier has also failed to establish satisfactorily. They are bound to pay the insurance companies. 2. The Philippine American General Insurance Co., Inc., vs. MCG Marine Services, Inc. (DORIA) DOCTRINE: ● Presumption of fault or negligence does not arise in the cases enumerated under Article 1734 of the Civil Code. ● Stricter standard: before a common carrier may be absolved from liability where the loss, destruction or deterioration of the goods is due to a natural disaster or calamity, it must further be shown that: 30
1. Such natural disaster or calamity was the proximate and only cause of the loss; 2. There must be "an entire exclusion of human agency from the cause of the injury of the loss." ● Even in cases where a natural disaster is the proximate and only cause of the loss, a common carrier is still required to exercise due diligence to prevent or minimize loss before, during and after the occurrence of the natural disaster, for it to be exempt from liability. FACTS: ● San Miguel Corporation insured beer bottle cases with an aggregate value of PhP5.8M with Philippine American General Insurance Company (PHILAMGEN). ● The cargo was loaded on board the M/V Peatheray PatrickG, a vessel of MCG, to be transported from Mandaue City to Bislig, Surigao del Sur. ○ The weather was calm when the vessel started its voyage. ○ The following day, the vessel sunk together with the cargo belonging to San Miguel Corporation. ● San Miguel Corporation claimed the amount of its loss from PHILAMGEN. ● Upon PHILAMGEN's request, a surveyor from the Manila Adjusters and Surveyors Co. went to investigate the circumstances surrounding the loss of the cargo. The report stated that the vessel was structurally sound and that there was no damage or crack. It was concluded that the proximate cause of the listing and subsequent sinking of the vessel was the shifting of ballast water from starboard to portside. The said shifting of ballast water allegedly affected the stability of the vessel. ○ PHILAMGEN paid San Miguel and as the subrogee, filed with the RTC a case for collection. ● The Board of Marine Inquiry conducted its own investigation of the sinking to determine WON the captain and crew of the vessel should be held responsible for the incident. ○ The Board exonerated the captain and crew for any administrative liability. ○ The cause of the sinking of the vessel was the existence of strong winds and enormous waves in Surigao del Sur, a fortuitous event that could not have been forseen at the time the vessel left the port of Mandaue City. Said fortuitous event was the proximate and only cause of the vessel's sinking. 31
● ●
RTC: MCG liable CA: reversed the ruling of the RTC. ○ MCG could not be held liable for the loss because said loss occurred as a consequence of a fortuitous event, and that such fortuitous event was the proximate and only cause of the loss.
ISSUE: WON MCG can be held liable? – NO HELD: Since the presence of strong winds and enormous waves was shown to be the proximate and only cause of the sinking and the loss of the cargo, MCG cannot be held liable. Common carriers, from the nature of their business and for reasons of public policy, are mandated to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them. Owing to this high degree of diligence required of them, common carriers, as a general rule, are presumed to have been at fault or negligent if the goods transported by them are lost, destroyed or if the same deteriorated. ● However, this presumption of fault or negligence does not arise in the cases enumerated under Article 1734 of the Civil Code. See Art. 1734, (1) for this case. Article 1739 and jurisprudence made the standard stricter in requiring that before a common carrier may be absolved from liability where the loss, destruction or deterioration of the goods is due to a natural disaster or calamity, it must further be shown that: ● Such natural disaster or calamity was the proximate and only cause of the loss; ● There must be "an entire exclusion of human agency from the cause of the injury of the loss." Even in cases where a natural disaster is the proximate and only cause of the loss, a common carrier is still required to exercise due diligence to prevent or minimize loss before, during and after the occurrence of the natural disaster, for it to be exempt from liability under the law for the loss of the goods. ● If a common carrier fails to exercise due diligence (that ordinary care which the circumstances of the particular case demand) to preserve and protect the goods carried by it on the occasion of a 32
natural disaster, it will be deemed to have been negligent, and the loss will not be considered as having been due to a natural disaster under Article 1734 (1). The following facts support the finding that the carrier indeed exercised the diligence required: 1. The strong winds and huge waves were unforeseeable: before leaving, the captain confirmed with the coast guard that the weather condition would permit safe travel 2. The vessel was seaworthy: it had 3 diesel engines, 3 propellers, operating generator pumps for emergency, it has undergone emergency dry docking and repair, it was skippered by a competent and experienced captain and crew, it was awarded the SOLAS clearance to depart by the Philippine Coast Guard. 3. When strong winds and huge waves began pounding the ship, the crew took emergency measures. Upon the ingress of water, the crew continuously pumped the sea water out to prevent the ship from sinking. However, they were still not able to control the volume of water, which caused the listing and eventual sinking of the vessel. 3. Lea Mer Industries, Inc., vs. Malayan Insurance Co., Inc. (FRANCISCO) Doctrine: In a contract of affreightment (time or voyage charter party), the rules from common carriers govern. A demise or bareboat charter indicates a business undertaking that is private in character, and therefore, the rights and obligations of the parties are governed principally by their stipulations, NOT by the law on common carriers. To create a demise, the owner of a vessel must completely and exclusively relinquish possession, command and navigation thereof to the charterer; anything short of such a complete transfer is a contract of affreightment or not a charter party at all. To excuse the common carrier fully of any liability, the fortuitous event must have been the proximate and only cause of the loss. Parties: 1. Ilian Silica Mining shipper 2. Lea Mer Industries Inc. – carrier, petitioner 3. Vulcan Industrial and Mining Corporation – charterer, consignee 4. Malayan Insurance Co. – insurer, respondent 33
Facts: ● Ilian Silica Mining entered into a contract of carriage with the petitioner, Lea Mer Industries Inc. for the shipment of 900 metric tons of silica sand worth P565,000. ● The cargo was consigned to Vulcan Industrial and Mining Corporation and was to be shipped from Palawan to Manila. ● 25 October 1991, the silica sand was boarded to Judy VII, the vessel leased by Lea Mer. ○ However, during the course of its voyage, the vessel sank which led to the loss of the cargo. ● Consequently, the Malayan Insurance Co., as the insurer, paid Vulcan the value of the lost cargo. ● Malayan Insurance Co., Inc. then collected from the Lea Mer the amount it paid to Vulcan as reimbursement and as its exercise on the right of subrogation. ○ Lea Mer refused to pay which led Malayan to institute a complaint with the RTC. ○ RTC: dismissed the complaint stating that the loss was due to a fortuitous event, Typhoon Trining. ● Lea Mer did not know that a typhoon was coming and that it has been cleared by the Philippine Coast Guard to travel from Palawan to Manila. ○ CA: reversed TC’s ruling for the reason that said vessel was not seaworthy when it sailed to Manila. The loss of cargo was occasioned by Lea Mer’s fault, not by a fortuitous event. Issue: ● W/N the loss of the cargo was due to a fortuitous event. – NO. ● W/N Lea Mer is liable for the loss of the cargo. YES Held: ● Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods, or both — by land, water, or air — when this service is offered to the public for compensation. a. Lea Mer is clearly a common carrier, because it offers to the public its business of transporting goods through its vessels. Thus, the Court corrects the trial court's finding that Lea Mer became a private carrier when Vulcan chartered it. 34
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Common carriers are bound to observe extraordinary diligence in their vigilance over the goods and the safety of the passengers they transport, as required by the nature of their business and for reasons of public policy. Extraordinary diligence requires rendering service with the greatest skill and foresight to avoid damage and destruction to the goods entrusted for carriage and delivery. ● Common carriers are presumed to have been at fault or to have acted negligently for loss or damage to the goods that they have transported. This presumption can be rebutted only by proof that they observed extraordinary diligence, or that the loss or damage was occasioned by any of the following causes: a. Flood, storm, earthquake, lightning, or other natural disaster or calamity; b. Act of the public enemy in war, whether international or civil; c. Act or omission of the shipper or owner of the goods; d. The character of the goods or defects in the packing or in the containers; e. Order or act of competent public authority." ● Jurisprudence defines the elements of a "fortuitous event" as follows: a. the cause of the unforeseen and unexpected occurrence, or the failure of the debtors to comply with their obligations, must have been independent of human will; b. the event that constituted the caso fortuito must have been impossible to foresee or, if foreseeable, impossible to avoid; c. the occurrence must have been such as to render it impossible for the debtors to fulfill their obligation in a normal manner; and d. the obligor must have been free from any participation in the aggravation of the resulting injury to the creditor. ● The evidence presented by Lea Mer in support of its defense of fortuitous event was sorely insufficient. It was not enough for the common carrier to show that there was an unforeseen or unexpected occurrence. Lea Mer failed to prove that it was free from any fault. ○ According to PAGASA, on October 24, 1991, typhoon Trining hit Batangas, the Ilocos Provinces, Isabela but NOT Metro Manila or Palawan. Maybe Palawan was affected but if ever it was affected it was only minimal. ○ The barge was not seaworthy (as shown in the Philippine Coast Guard’s Certificate) when it sailed. The hull of the 35
barge, there were holes that might have caused or aggravated the sinking. Hence, the alleged fortuitous event was not the sole and proximate cause of the loss. ● To excuse the common carrier fully of any liability, the fortuitous event must have been the proximate and only cause of the loss. Moreover, it should have exercised due diligence to prevent or minimize the loss before, during and after the occurrence of the fortuitous event. Since it was not proven that the loss of the cargo was due to fortuitous event, Lea Mer was liable for the lost because as a common carrier, it failed to observe the extraordinary diligence in the vigilance over the cargo as required by law. SC: Petition denied, affirmed CA’s decision. 4. Sps. Cruz vs. Sun Holidays, Inc. (GATCHALIAN)
DOCTRINE: ● To fully free a common carrier from any liability, the fortuitous event must have been the proximate and only cause of the loss. And it should have exercised due dilligence to prevent or minimise the loss before, during and after the occurrence of the fortuitous event. ● The elements of a "fortuitous event" are: ○ the cause of the unforeseen and unexpected occurrence, or the failure of the debtors to comply with their obligations, must have been independent of human will; ○ the event that constituted the caso fortuito must have been impossible to foresee or, if foreseeable, impossible to avoid; ○ the occurrence must have been such as to render it impossible for the debtors to fulfill their obligation in a normal manner; and ○ the obligor must have been free from any participation in the aggravation of the resulting injury to the creditor FACTS: ● Spouses Dante and Leonora Cruz (petitioners) filed a Complaint against Sun Holidays, Inc (respondents) for damages arising from the death of their son Ruelito C. Cruz (Ruelito) who perished with his wife (newly wed) on September 11, 2000 on board the boat M/B Coco Beach III that capsized en route to Batangas from Puerto Galera.
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● The newly wed stayed at Coco Beach Island Resort owned by the respondent. The couple availed the respondent’s tour package contact that included transportation to and from the Resort. ● According to Miguel Matute, a scuba diving instructor narrated the following events that transpired: ○ Matute (who was supposed to leave on September 10 but was advised to stay for another night due to bad weather) and other resort guests which included the newly wed trekked to the other side of the Coco Beach mountain that was sheltered from the wind where they boarded M/B Coco Beach III, which was to ferry them to Batangas. ○ Shortly after the boat sailed, it started to rain and as it moved into the open seas the rain and wind got stronger, causing the boat to tilt from side to side. ○ After getting hit by two big waves which came one after the other, M/B Coco Beach III capsized putting all passengers underwater. As a result, 8 passengers, including the newly wed died. ● Petitioners demanded indemnification for the death of their son but the Respondent denied any responsibility for the incident which it considered to be a fortuitous event. It offered, as an act of commiseration, the amount of P10,000 to petitioners upon their signing of a waiver. The petitioner denied the offer. ● Petitioner filed a Complaint alleging that respondent, as a common carrier, was guilty of negligence in allowing M/B Coco Beach III to sail notwithstanding storm warning bulletins issued by the PAGASA as early as 5:00 a.m. of September 11, 2000. ● In its Answer, Respondent contended that there was no strom on September 11, 2000. (note: respondent also filed counterclaim) ● The captain of M/B Coco Beach III averred that the resort customarily requires 4 conditions to be met before a boat was about to a sail to which all were met but a subasco or squall, characterized by strong winds and big waves, suddenly occurred, causing the boat to capsize. RTC: dismissed the petitioner’s complaint and respondent’s counterclaim. MR denied CA: denied petitioner’s appeal. CA ruled that the proximate cause of the incident was a squall, a fortuitous event. MR denied. Hence, the Petition for Review. Respondent is contending that the incident was caused by a fortuitous event without any contributory negligence on its part. 37
ISSUE: WON respondent Sun Holiday’s. Inc should NOT be held liable due to fortuitous event (subasco or squall)? NO. HELD: Respondent nevertheless harps on its strict compliance with the earlier mentioned conditions (calm sea, obtained clearance from the Coast Guard, captain and Resort’s assistant manager) of voyage before it allowed M/B Coco Beach III to sail on September 11, 2000. Respondent’s position does not impress. The evidence shows that PAGASA issued 24hour public weather forecasts and tropical cyclone warnings for shipping on September 10 and 11, 2000 advising of tropical depressions in Northern Luzon which would also affect the province of Mindoro. By the testimony of Dr. Frisco Nilo, supervising weather specialist of PAGASA, squalls are to be expected under such weather condition. A very cautious person exercising the utmost diligence would thus not brave such stormy weather and put other people’s lives at risk. The extraordinary diligence required of common carriers demands that they take care of the goods or lives entrusted to their hands as if they were their own. This respondent failed to do. Respondent’s insistence that the incident was caused by a fortuitous event does not impress either. The elements of a "fortuitous event" are: (a) the cause of the unforeseen and unexpected occurrence, or the failure of the debtors to comply with their obligations, must have been independent of human will; (b) the event that constituted the caso fortuito must have been impossible to foresee or, if foreseeable, impossible to avoid; (c) the occurrence must have been such as to render it impossible for the debtors to fulfill their obligation in a normal manner; and (d) the obligor must have been free from any participation in the aggravation of the resulting injury to the creditor. To fully free a common carrier from any liability, the fortuitous event must have been the proximate and only cause of the loss. And it should have exercised due diligence to prevent or minimize the loss before, during and after the occurrence of the fortuitous event. 38
Respondent cites the squall that occurred during the voyage as the fortuitous event that overturned M/B Coco Beach III. As reflected above, however, the occurrence of squalls was expected under the weather condition of September 11, 2000. Moreover, evidence shows that M/B Coco Beach III suffered engine trouble before it capsized and sank. The incident was, therefore, NOT completely free from human intervention. The Court need not belabor how respondent’s evidence likewise fails to demonstrate that it exercised due diligence to prevent or minimize the loss before, during and after the occurrence of the squall. ii.
Character of the goods, etc. 1. Calvo vs. UCPB General Insurance Co., Inc. (HAUTEA)
Facts: Virgines Calvo, owner of Transorient Container Terminal Services, Inc., a customs broker, entered into a contract with San Miguel Corp. to transfer 114 reels of semichemical fluting paper and 124 reels of kraft liner board from the Port Area in Manila to SMC’s warehouse in Ermita, Manila. The cargo was insured by UCPB General Insurance Co., Inc. On July 14, 1990, the shipment, contained in 30 metal vans, arrived in Manila on board “M/V Hayakawa Maru” and, after 24 hours, were unloaded from the vessel to the custody of the arrastre operator. Transorient withdrew the cargo from the arrastre operator and delivered it to SMC’s warehouse. Upon inspection, it was found that 15 reels of the semichemical fluting paper were “wet/stained/torn” and 3 reels of kraft liner board were likewise torn. SMC collected payment from UCPB under the insurance contract and in turn, UCPB, as subrogee, brought suit against Calvo for the value of damage which was placed at P93,112. The RTC rendered judgment against Calvo. The CA affirmed. Calvo contends that she is a private carrier because, as a customs broker and warehouseman, she does not indiscriminately hold her services out to the public but only offers the same to select parties with whom she may contract in the conduct of her business. She likewise claims that the drive from the Port Area to SMC’s warehouse in Ermita, Manila took merely 30 minutes and as such, the damage could not have taken place while the goods were in her custody Issues & Held: 1. W/N Transorient is a common carrier? YES. Transorient is a common carrier.
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Article 1732. Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air for compensation, offering their services to the public. Article 1732 makes no distinction between a carrier: a. whose principal business activity is the carrying of persons or goods or both, and one who does such carrying only as an ancillary activity; b. offering transportation service on a regular or scheduled basis and one offering such service on an occasional, episodic or unscheduled basis; c. offering its services to the “general public,” i.e., the general community or population, and one who offers services or solicits business only from a narrow segment of the general population. [The Court thinks] that Article 1732 deliberately refrained from making such distinctions. To hold that petitioner is a private carrier would be to deprive those with whom she contracts the protection which the law affords them notwithstanding the fact that the obligation to carry goods for her customers is part and parcel of her business. 2. W/N Transorient exercised extraordinary diligence in the vigilance over the goods? NO. Extraordinary diligence in the vigilance over the goods tendered for shipment requires the common carrier to know and to follow the required precaution for avoiding damage to, or destruction of, the goods entrusted to it for sale, carriage, and delivery. It requires common carriers to render service with the greatest skill and foresightand “to use all reasonable means to ascertain the nature and characteristic of goods tendered for shipment, and to exercise due care in the handling and stowage, including such methods as their nature requires.” Contrary to Calvo’s assertion, the Survey Report indicates that when the shipper transferred the cargo to the arrastre operator, they were covered by clean Equipment Interchange Reports (EIRs) and, when Calvo’s employees withdrew the cargo from the arrastre operator, they did so without exception or protest either with regard to the condition of the container vans or their contents. Thus, the shipment was received in good order and condition but was delivered to the consignee damaged. Whenever the thing is lost or damaged in the possession of the obligor, it shall be presumed that the loss or damage was due to his fault, unless there is proof to the contrary. No proof was proffered by Calvo to rebut this legal presumption. With regard to the contention that the cargo could not have been damaged while in petitioner’s custody as she immediately delivered the containers to SMC’s compound, suffice it to say that to 40
prove the exercise of extraordinary diligence, petitioner must do more than merely show the possibility that some other party could be responsible for the damage. It must prove that it used “all reasonable means to ascertain the nature and characteristic of goods tendered for transport and that it exercised due care in the handling thereof.” Petitioner failed to do this. Nor is there basis to exempt Calvo from liability under Article 1734 (4). For this provision to apply, the rule is that if the improper packing or, in this case, the defect/s in the container, is/are known to the carrier or his employees or apparent upon ordinary observation, but he nevertheless accepts the same without protest or exception notwithstanding such condition, he is not relieved of liability for damage resulting therefrom. In this case, Calvo accepted the cargo without exception despite the apparent defects in some of the container vans. Hence, for failure to prove that she exercised extraordinary diligence in the carriage of goods in this case or that she is exempt from liability, the presumption of negligence as provided under Art. 1735 holds. 2. A. F. Sanchez Brokerage vs. CA (LESAVA) Doctrine: While paragraph No. 4 of Article 1734 of the Civil Code exempts a common carrier from liability if the loss or damage is due to the character of the goods or defects in the packing or in the containers, the rule is that if the improper packing is known to the carrier or his employees or is apparent upon ordinary observation, but he nevertheless accepts the same without protest or exception notwithstanding such condition, he is not relieved of liability for the resulting damage. Parties: WyethPharma GMBH (Shipper) FGU Insurance (Insurer) WyethSuaco Laboratories, Inc. (Consignee) Phiippine Skylanders, Inc. (Warehouse at NAIA) Sanchez Brokerage (Brokerage Firm) → found to be a common carrier. calculates and pays the customs duties, taxes and storage. also contracted to deliver goods upon consignee’s orders. Facts: ● Shipper shipped on board the carrier oral contraceptives consisting of 86,800 Blisters Femenal tablets, 14,000 Blisters Nordiol tablets and 42,000 Blisters Trinordiol tablets. ○ Femenal tablets were placed in 124 cartons and the Nordiol tablets were placed in 20 cartons which were packed together in one (1) LD3 aluminum container, while the Trinordial tablets were packed in two pallets, each of which contained 30 cartons. ● Consignee insured shipment against all risks with Insurer. ● Upon arrival of the shipment at NAIA, it was discharged "without exception" and delivered to the warehouse of the Philippine Skylanders, Inc. (PSI) located also at the NAIA for safekeeping. ● In order to secure release of the cargoes, Consignee engaged services of brokerage firm who got the goods out and delivered to Consignee. 41
● On the receipt issued for the release of the goods, a representative from the Brokerage firm acknowledged he received the cargoes consisting of 3 pcs in good condition. ● Since Consignee was a regular importer, the customs examiner did not inspect the cargoes, which were thereupon stripped from the aluminum containers and loaded inside two transport vehicles hired by Sanchez Brokerage. ● Upon instructions of consignee, the cargoes were delivered to Hizon Laboratories in Antipolo City for quality control check. ● A representative of the Consignee acknowledged the delivery by affixing his signature on the delivery receipt.Upon inspection, however, he, together witha representative of Elite Surveryors discovered that 44 cartons containing Femenal and Nordiol tablets were in bad order. He thus placed a note above his signature on the delivery receipt stating that 44 cartons of oral contraceptives were in bad order. The remaining 160 cartons of oral contraceptives were accepted as complete and in good order. ● They both signed a survery repor tstating that 41 cartons of Femenal tablets and 3 cartons of Nordiol tablets were "wetted". ● Elite Surveyors later issued a Certificate attached to which was an "Annexed Schedule" indicating that prior to the loading of the cargoes to the broker’s trucks at the NAIA, they were inspected and found to be in "apparent good condition." Also noted was that at the time of delivery to the warehouse of Hizon Laboratories Inc., slight to heavy rains fell, which could account for the wetting of the 44 cartons of Femenal and Nordiol tablets. ● Consignee demanded from the brokerage firm payment representing the value of its loss arising from the damaged tablet but the brokerage firm refused to heed the demand. ● Consignee filed insurance claim against Insurer which paid amount in setllement of its claim. Consignee issued Subrogation receipt in favor of FGU Insurance. ● On demand by Insurer against Brokerage firm, it disclaimed liability by posting that the damage was due to improper and insufficient export packaging; that when sealed containers were opened outside PSI warehouse, it was discovered that some of th eloose cartons were wet, prompting its representative to inform Consignee’s representative about the condition but still advised them to still deliver it to Hizon Lab where an adjuster would assess the damage. ● Insurance co. filed case against Brokerage firm. TC: dismissed complaint. CA: reversed decision holding that the Sanchez Brokerage engaged not only in the business of customs brokerage but also in the transportation and delivery of the cargo of its clients, hence, a common carrier within the context of Article 1732 of the New Civil Code. Sanchez Brokerage is presumed negligent. Issue: WON Brokerage firm should be held liable? Held: YES. While paragraph No. 4 of Article 1734 of the Civil Code exempts a common carrier from liability if the loss or damage is due to the character of the goods or defects in the packing or in the containers, the rule is that if the improper packing is known to the carrier or his 42
employees or is apparent upon ordinary observation, but he nevertheless accepts the same without protest or exception notwithstanding such condition, he is not relieved of liability for the resulting damage.
If the claim of petitioner that some of the cartons were already damaged upon delivery to it were true, then it should naturally have received the cargo under protest or with reservations duly noted on the receipt issued by PSI. But it made no such protest or reservation. Since petitioner received all the cargoes in good order and condition at the time they were turned over by the PSI warehouseman, and upon their delivery to Hizon Laboratories, Inc. a portion thereof was found to be in bad order, it was incumbent on petitioner to prove that it exercised extraordinary diligence in the carriage of the goods. It did not, however. Hence, its presumed negligence under Article 1735 of the Civil Code remains unrebutted. 3. Philippine Charter Insurance Corporation vs. Unknown Owner of the vessel M/V National Honor (LIM) FACTS: Petitioner Philippine Charter Insurance Corporation (PCIC) is the insurer of a shipment on board the vessel M/V “National Honor,” represented in the Philippines by its agent, National Shipping Corporation of the Philippines (NSCP). The M/V “National Honor” arrived at the Manila International Container Terminal (MICT). The International Container Terminal Services, Incorporated (ICTSI) was furnished with a copy of the crate cargo list and bill of lading, and it knew the contents of the crate. The following day, the vessel started discharging its cargoes using its winch crane. The crane was operated by Olegario Balsa, a winchman from the ICTSI, exclusive arrastre operator of MICT. Denasto Dauz, Jr., the checkerinspector of the NSCP, along with the crew and the surveyor of the ICTSI, conducted an inspection of the cargo. They inspected the hatches, checked the cargo and found it in apparent good condition. Claudio Cansino, the stevedore of the ICTSI, placed two sling cables on each end of Crate No. 1. No sling cable was fastened on the midportion of the crate. In Dauz’s experience, this was a normal procedure. As the crate was being hoisted from the vessel’s hatch, the midportion of the wooden flooring suddenly snapped in the air, about five feet high from the vessel’s twin deck, sending all its contents crashing down hard, resulting in extensive damage to the shipment.
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Upon receipt, BMICI found that the same could no longer be used for the intended purpose. The Mariners’ Adjustment Corp. hired by PCIC declared that the packing of the shipment was insufficient and opined that 34 pieces of cable or wire rope slings, held in all equal setting, never bypassing the center of the crate, should have been used, considering that the crate contained heavy machinery. BMICI filed separate claims against NSCP, ICTSI, PCIC, for $61,500. The other companies denied liability so PCIC paid the claim and was issued a Subrogation Receipt for P1,740,634.50. PCIC paid the damages, and as subrogee, filed a case against M/V National Honor, NSCP and ICTSI alleging that the loss was due their fault and negligence. ICTSI filed a Counterclaim and Crossclaim against NSCP, claiming that the loss/damage of the shipment was caused exclusively by the defective material of the wooden battens, insufficient packing or acts of the shipper. NSCP counters that if ever respondent ICTSI is adjudged liable, it is not solidarily liable with it. It avers that the "carrier cannot discharge directly to the consignee because cargo discharging is the monopoly of the arrastre." The trial court held that the loss of the shipment was due to the internal defect and weakness of the materials used in the crates and was thus, attributable to the shipper. On appeal, the CA affirmed the trial court’s decision and added that the shipper also failed to indicate an arrow in the middle portion of the cargo where additional slings should be attached. PCIC avers that the shipment was sufficiently packed in wooden boxes, as shown by the fact that it was accepted on board the vessel and arrived in Manila safely. It emphasizes that respondents did not contest the contents of the bill of lading, and that respondents knew that the manner and condition of the packing of the cargo was normal and barren of defects. It maintains that it behooved the respondent ICTSI to place three to four cables or wire slings in equal settings, including the center portion of the crate to prevent damage to the cargo. ISSUE: W/N ICTSI failed to exercise extraordinary diligence in handling the shipment. 44
HELD: No. We agree with the contention of the petitioner that common carriers, from the nature of their business and for reasons of public policy, are mandated to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. The Court has defined extraordinary diligence in the vigilance over the goods as follows: The extraordinary diligence in the vigilance over the goods tendered for shipment requires the common carrier to know and to follow the required precaution for avoiding damage to, or destruction of the goods entrusted to it for sale, carriage and delivery. It requires common carriers to render service with the greatest skill and foresight and “to use all reasonable means to ascertain the nature and characteristic of goods tendered for shipment, and to exercise due care in the handling and stowage, including such methods as their nature requires.” The common carrier’s duty to observe the requisite diligence in the shipment of goods lasts from the time the articles are surrendered to or unconditionally placed in the possession of, and received by, the carrier for transportation until delivered to, or until the lapse of a reasonable time for their acceptance, by the person entitled to receive them.] >When the goods shipped are either lost or arrive in damaged condition, a presumption arises against the carrier of its failure to observe that diligence, and there need not be an express finding of negligence to hold it liable. To overcome the presumption of negligence in the case of loss, destruction or deterioration of the goods, the common carrier must prove that it exercised extraordinary diligence. However, under Article 1734 of the New Civil Code, the presumption of negligence does not apply to any of the following causes: 1. Flood, storm, earthquake, lightning or other natural disaster or calamity; 2. Act of the public enemy in war, whether international or civil; 3. Act or omission of the shipper or owner of the goods; 4. The character of the goods or defects in the packing or in the containers; 5. Order or act of competent public authority. It bears stressing that the enumeration in Article 1734 of the New Civil Code which exempts the common carrier for the loss or damage to the cargo is a closed list. To exculpate itself from liability for the loss/damage 45
iii.
to the cargo under any of the causes, the common carrier is burdened to prove any of the aforecited causes claimed by it by a preponderance of evidence. If the carrier succeeds, the burden of evidence is shifted to the shipper to prove that the carrier is negligent. “Defect” is the want or absence of something necessary for completeness or perfection; a lack or absence of something essential to completeness; a deficiency in something essential to the proper use for the purpose for which a thing is to be used. On the other hand, inferior means of poor quality, mediocre, or second rate. A thing may be of inferior quality but not necessarily defective. In other words, “defectiveness” is not synonymous with “inferiority.” In the present case, the trial court declared that based on the record, the loss of the shipment was caused by the negligence of the petitioner as the shipper: The same may be said with respect to defendant ICTSI. The breakage and collapse of Crate No. 1 and the total destruction of its contents were not imputable to any fault or negligence on the part of said defendant in handling the unloading of the cargoes from the carrying vessel, but was due solely to the inherent defect and weakness of the materials used in the fabrication of said crate. The crate should have three solid and strong wooden batten placed side by side underneath or on the flooring of the crate to support the weight of its contents. x x x Order of competent authority 1. Ganzon vs. CA (MORA)
Perfection of contract of carriage; Extraordinary responsibility of carrier for loss, destruction or deterioration of the goods, when it commences and ceases. By said act of delivery, the scraps were unconditionally placed in the possession and control of the common carrier, and upon their receipt by the carrier for transportation, the contract of carriage was deemed perfected. Consequently, the petitionercarrier’s extraordinary responsibility for the for the loss, destruction, or deterioration of the goods commenced. Pursuant to Art. 1736, such extraordinary responsibility would cease only upon the delivery, actual or constructive, by the carrier to the consignee, or to the person who has a right to receive them. The fact that part of the shipment had not been loaded on board the lighter did not impair the said contract of transportation as the goods remained in the custody and control of the carrier, albeit still unloaded. 46
FACTS: Action for damages based on culpa contractual. Gelacio Tumambing contracted the services of Mauro B. Ganzon to haul 305 tons of scrap iron from Mariveles, Bataan, to the port of Manila on board the lighter LCT "Batman". Pursuant to that agreement, Mauro B. Ganzon sent his lighter "Batman" to Mariveles where it docked in three feet of water On December 1, 1956, Gelacio Tumambing delivered the scrap iron to defendant Filomeno Niza, captain of the lighter, for loading which was actually begun on the same date by the crew of the lighter under the captain's supervision. When about half of the scrap iron was already loaded, Mayor Jose Advincula of Mariveles, Bataan, arrived and demanded P5,000.00 from Gelacio Tumambing. The latter resisted the shakedown and after a heated argument between them, Mayor Jose Advincula drew his gun and fired at Gelacio Tumambing. The gunshot was not fatal but Tumambing had to be taken to a hospital in Balanga, Bataan, for treatment. After sometime, the loading of the scrap iron was resumed. But Acting Mayor Basilio Rub, accompanied by three policemen, ordered captain Filomeno Niza and his crew to dump the scrap iron where the lighter was docked. The rest was brought to the compound of NASSCO. Later on Acting Mayor Rub issued a receipt stating that the Municipality of Mariveles had taken custody of the scrap iron. CA: ordered plaintiffappellee Mauro Guanzon to pay appellant Tumambing Petitioner claims that he is exempt from any liability because the loss of the scraps was due to the intervention of the municipal officials in Mariveles which constitutes as a caso furtuito under Art 1174 of the Civil Code. ISSUE: Whether the CA erred in condemning the petitioner for the acts of his employees in dumping the scrap of metal into the sea despite that it was ordered by the local government official without the his participation? HELD: NO. As the CA found: “...before the appellee Ganzon could be absolved from responsibility on the ground that he was ordered by competent public authority to unload the scrap iron, it must be shown that Acting Mayor Basilio Rub had the power to issue the disputed order, or that it was lawful, or that it was issued under legal process of authority. The appellee failed to establish this. Indeed, no authority or power of 47
the acting mayor to issue such an order was given in evidence. Neither has it been shown that the cargo of scrap iron belonged to the Municipality of Mariveles. What we have in the record is the stipulation of the parties that the cargo of scrap iron was accumulated by the appellant through separate purchases here and there from private individuals. The fact remains that the order given by the acting mayor to dump the scrap iron into the sea was part of the pressure applied by Mayor Jose Advincula to shakedown the appellant for P5,000.00. The order of the acting mayor did not constitute valid authority for appellee Mauro Ganzon and his representatives to carry out.” Here, the intervention of the municipal officials was not of a character that would render impossible the fulfillment by the carrier of its obligation. The petitioner was not duty bound to obey the illegal order to dump into the sea the scrap iron. Moreover, there is absence of sufficient proof that the issuance of the same order was attended with such force or intimidation as to completely overpower the will of the petitioner's employees. The mere difficulty in the fulfillment of the obligation is not considered force majeure. The Court agrees with the respondents that the scraps would have been properly unloaded at the shore or at the NASSCO compound, so that after the dispute with the local officials concerned was settled, the scraps could then be delivered in accordance with the contract of carriage. Dissenting: The petitioner should not have been held liable for damages because it falls under the exceptions in Article 1734 of the Civil Code because the suspension of loading of scraps of metal was from Mayos Jose Advicunla who was a “competent public authority” Petitioner had no control over the situation as, in fact, Tumambing himself, the owner of the cargo, was impotent to stop the "act' of said official and even suffered a gunshot wound on the occasion. When loading was resumed, Acting Mayor Basilio Rub, accompanied by three policemen, ordered the dumping of the scrap iron into the sea right where the lighter was docked. Could the captain of the lighter and his crew could have defied the order? Through the "order" or "act" of "competent public authority," therefore, the performance of a contractual obligation was rendered impossible. The scrap iron that was dumped into the sea was "destroyed" while the rest of the cargo was "seized." The seizure is evidenced by the receipt issues by Acting Mayor Rub stating that the Municipality of Mariveles had taken custody of the scrap iron. Apparently, therefore, the seizure and destruction of the goods was done under legal process or authority so that petitioner should be freed from responsibility. 48
iv.
Absence of delay 1. Philamgen vs. CA (SUPAPO) (Insurance v. Ship owner) PARTIES: Insurance company Philamgen Ship Owner Transpacific Towage Owner of goods Davao Union Marketing Corp. SYNOPSIS: (Sorry mahaba yung facts kasi) A cargo arrived in a port. It was not immediately unloaded in the vessel because of several reasons. During the unloading of cargoes, a super typhoon came. As such, not all cargoes were unloaded in the vessel. Unfortunately, the vessel was broke into 2 parts. The cement were damaged and the GI sheets were pilfered and looted. With this, the owner of cargoes claimed its insurance indemnity against the insurer. The insurer wants to get reimbursement from the ship owner contending that it was the latter’s negligence and accordingly should bear the loss. The TC held the ship owner liable as there was unreasonable delay, which exposed the cargo to accident. The CA reversed it, ruling that the loss was due solely to a fortuitous event. The SC affirmed CA’s decision that the delay was not due to negligence but attributable to several factors. Hence, the ship owner is not liable for the loss. FACTS: 1. Davao Union Marketing Corporation shipped on board the vessel M/V "Crazy Horse" operated by the Transpacific Towage, Inc. cargo consisting of 9,750 sheets of union brand GI sheets and 86,860 bags of union Pozzolan and union Portland Cement. 2. The cargo was consigned to the Bicol Union Center of Pasacao, Camarines Sur, with a certain Pedro Olivan as the "NotifyParty." 3. The cargo was insured by the Philamgen, covering 86,000, of Union Pozzolan and Portland cement. 4. The vessel M/V "Crazy Horse" arrived on September 7, 1985 as scheduled at the port of Pasacao, Camarines Sur. 5. Upon arrival the shipmaster notified the consignee's "NotifyParty" that the vessel was all ready to discharge the cargo. 49
6. The discharging could not be affected immediately and continuously because of certain reasons: a. First, the buoys were installed only on September 11, 1985; b. second, the discharge permit was secured by the consignee only on September 13, 1985; c. third a wooden catwalk had to be installed and extension of the wharf had to be made, which was completed only on September 26, 1985; d. fourth, the discharging was not continuous because there were intermittent rains and the stevedores supplied by the consignee did not work during the town fiesta of the Virgin of Penafrancia. 7. 40 days after the shipment arrived, super typhoon “Saling” came. The Pasacao area was placed under storm signal No. 3. 8. Because of super typhoon “Saling”, the discharging of the cargo had to be suspended on October 17, 1985 due to the heavy downpour, strong winds, and turbulent sea. To prevent damage to the cargo all hatches of the vessel were closed and secured. 9. The vessel sustained holes in the engine room and eventually broke into 2 parts and sank partially. 10. The shipmaster reported the incident to the Philippine Coast Guard but despite the presence of three (3) coast guards, nothing could be done about the pilferage done on the vessel and its cargo. 11. Almost the whole barrio and because there were so many of them the crew and the guards were helpless to stop the pilferage and looting. As a result of the incident the cargo of cement was damaged while the GI sheets were looted and nothing was left of the undischarged pieces. 12. Accordingly, Davao Union claimed its insurance indemnity against Philamgen which it paid. 13. As such, Philamgen demanded from Transpacific the amount it paid to Davao Union, claiming that the loss of the cargo was directly and exclusively brought about by the fault and negligence of the shipmaster and the crew of M/V "Crazy Horse". 14. However, Transpacific refused. (The contention lies in the TC and CA’s ruling) 50
TC’S RULING: although the immediate cause of the loss may have been due to an act of God, the defendant carrier had exposed the property to the accident. Also, it found plaintiff guilty of contributory negligence. The lapse of thirty four (34) days with Transpacific not having completed the unloading of the goods, is tantamount to unreasonable delay, which delay exposed the unloaded cargo to accident. The trial court held Transpacific liable for the loss of goods under Article 1740 of the Civil Code which provides that if the common carrier negligently incurs in delay in transporting the goods, a natural disaster shall not free the carrier from responsibility. CA’S RULING: reversed the decision of the TC and ruled Transpacific Towage is not responsible for the loss of the insured cargo as said loss was due solely to a fortuitous event. It ruled out any negligence committed by Transpacific and held that the delay in fully unloading the cargo from the vessel "was occasioned by causes that may not be attributed solely to human factors, among which were the natural conditions of the port where the M/V "Crazy Horse" had docked, the customs of the place and the weather conditions. It applied Article 1739 of the Civil Code which provides as follows: In order that the common carrier may be exempted from responsibility, the natural disaster must have been the proximate and only cause of the loss. However, the common carrier must exercise due diligence to prevent or minimize loss before, during and after the occurrence of flood, storm, or other natural disaster in order that the common carrier may be exempted from liability for the loss, destruction, or deterioration of the goods. ISSUE: Whether the delay is due to negligence of Transpacific and as such should bear the loss? HELD: NO! Transpacific is not legally liable for the loss of the insured goods. Neither of the parties herein could be faulted for such delay, for the same (delay) was due not to negligence, but to several factors. While it is true that there was indeed delay in discharging the cargo from the vessel, we agree with the Court of Appeals that neither of 51
the parties herein could be faulted for such delay, for the same (delay) was due not to negligence, but to several factors earlier discussed. The cargo having been lost due to typhoon "Saling", and the delay incurred in its unloading not being due to negligence, private respondent is exempt from liability for the loss of the cargo, pursuant to Article 1740 of the Civil Code. The records also show that before, during and after the occurrence of typhoon "Saling", private respondent through its shipmaster exercised due negligence to prevent or minimize the loss of the cargo, as shown by the following facts: (1) at 5:20 a.m. of 18 October 1985, as typhoon "Saling" continued to batter the Pasacao area, the shipmaster tried to maneuver the vesel amidst strong winds and rough seas; (2) when water started to enter the engine room and later the engine broke down, the shipmaster ordered the ship to be abandoned, but he sought police assistance to prevent pilferage of the vessel and its cargo; (3) after the vessel broke into two (2) parts and sank partially, the shipmaster reported the incident to the Philippine Coast Guard, but unfortunately, despite the presence of three (3) coast guards, nothing could be done to stop the pilferage as almost the entire barrio folk came to loot the vessel and its cargo, including the G.I. sheets. The diligence exercised by the shipmaster further supports the exemption of private respondent from liability for the loss of the cargo, in accordance with Article 1739 of the Civil Code. v.
Due diligence to prevent lessen the loss 1. Asia Lighterage and Shipping, Inc., vs. CA (VELASCO) Shipper – Marubeni American Corporation Consignee – General Milling Corporation Insurer – Prudential Guarantee and Assurance, Inc. Carrier (from port to warehouse) – Asia Lighterage and Shipping, Inc. Goods: Better Western White Wheat Facts Goods were shipped to Manila from Portland, Oregon. Upon arrival in Manila, the cargo was transferred to the custody of the petitioner Asia Lighterage and Shipping, Inc. It was contracted by the consignee as carrier to deliver the cargo to consignee's warehouse in Pasig City. The 52
goods loaded on barge for delivery, but the cargo did not reach its destination. It appears that the transport of said cargo was suspended due to a warning of an incoming typhoon. Petitioner proceeded to pull the barge to an island to seek shelter from the approaching typhoon. The barge was tied down to other barges. A few days after, the barge developed a list because of a hole it sustained after hitting an unseen protuberance underneath the water. The petitioner filed a Marine Protest. It likewise secured the services of Gaspar Salvaging Corporation which refloated the barge. The hole was then patched with clay and cement. The barge was then towed to ISLOFF terminal before it finally headed towards the consignee's wharf. Upon reaching the Sta. Mesa spillways, the barge again ran aground due to strong current. To avoid the complete sinking of the barge, a portion of the goods was transferred to three other barges. The next day, the towing bits of the barge broke. It sank completely, resulting in the total loss of the remaining cargo. A second Marine Protest was filed. A bidding was conducted to dispose of the damaged wheat retrieved and loaded on the three other barges. The total proceeds from the sale of the salvaged cargo was P201,379.75. On the same day, consignee sent a claim letter to the petitioner, and another letter to the private respondent (Insurer, Prudential) for the value of the lost cargo. Private respondent indemnified the consignee. Thereafter, as subrogee, it sought recovery of said amount from the petitioner, but to no avail. RTC: in favor of Prudential CA: Affirmed with modification, deducting the proceeds of the sale Issues of the case: 1 WON petitioner is a common carrier – YES (But not the topic the case is under) 2 WON extraordinary diligence was exercised in the care and custody of the consignee’s cargo – NO 53
SC: 1. YES Article 1732 of the Civil Code defines common carriers as persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for compensation, offering their services to the public. Petitioner’s contention: private carries because it does not hold out its services to the general public. Jurisprudence: CivCode makes no distinction between principal business and ancillary activity. No distinction between regular/scheduled trips and occasional/episodic. No distinction between services offered to general public and those that are solicited from a narrow segment of the population. 2. NO Petitioner failed to exercise extraordinary diligence in its care and custody of the consignee’s goods. Common carriers are bound to observe extraordinary diligence in the vigilance over the goods transported by them. They are presumed to have been at fault or to have acted negligently if the goods are lost, destroyed or deteriorated. To overcome the presumption of negligence in the case of loss, destruction or deterioration of the goods, the common carrier must prove that it exercised extraordinary diligence. There are, however, exceptions to this rule. Article 1734 of the Civil Code enumerates the instances when the presumption of negligence does not attach, when the cause is due to: (1) Flood, storm, earthquake, lightning, or other natural disaster or calamity; (2) Act of the public enemy in war, whether international or civil; (3) Act or omission of the shipper or owner of the goods; (4) The character of the goods or defects in the packing or in the containers; (5) Order or act of competent public authority. In the case at bar, the barge completely sank after its towing bits broke, resulting in the total loss of its cargo. Petitioner claims that this was caused by a typhoon, hence, it should not be held liable for the loss of the cargo. However, petitioner failed to prove that the typhoon is the 54
vi.
proximate and only cause of the loss of the goods, and that it has exercised due diligence before, during and after the occurrence of the typhoon to prevent or minimize the loss. The evidence show that, even before the towing bits of the barge broke, it had already previously sustained damage when it hit a sunken object on its first docket incident. It even suffered a hole. Clearly, this could not be solely attributed to the typhoon. The partlysubmerged vessel was refloated but its hole was patched with only clay and cement. The patch work was merely a provisional remedy, not enough for the barge to sail safely. Thus, when petitioner persisted to proceed with the voyage, it recklessly exposed the cargo to further damage. Accordingly, the petitioner cannot invoke the occurrence of the typhoon as force majeure to escape liability for the loss sustained by the private respondent. Surely, meeting a typhoon headon falls short of due diligence required from a common carrier. More importantly, the officers/employees themselves of petitioner admitted that when the towing bits of the vessel broke that caused its sinking and the total loss of the cargo upon reaching the Pasig River, it was no longer affected by the typhoon. The typhoon then is not the proximate cause of the loss of the cargo; a human factor, i.e., negligence had intervened. Effect of contributory negligence 1. Tabacalera Insurance Co. vs. North Front Shipping Services, Inc. (BUENAVENTURA)
DOCTRINE: However, we cannot attribute the destruction, loss or deterioration of the cargo solely to the carrier. We find the consignee Republic Flour Mills Corporation guilty of contributory negligence. It was seasonably notified of the arrival of the barge but did not immediately start the unloading operations. No explanation was proffered by the consignee as to why there was a delay of six (6) days. Had the unloading been commenced immediately the loss could have been completely avoided or at least minimized. As testified to by the chemist who analyzed the corn samples, the mold growth was only at its incipient stage and could still be arrested by drying. The corn grains were not yet toxic or unfit for consumption. For its contributory negligence, Republic Flour Mills Corporation should share at least 40% of the loss FACTS: 20,234 sacks of corn grains valued at P3,500,640.00 were shipped on board North Front 777, a vessel owned by North Front Shipping Services, Inc. The cargo was consigned to Republic Flour Mills Corporation in Manila and insured with the herein mentioned insurance companies. The vessel was inspected prior 55
to actual loading by representatives of the shipper and was found fit to carry the merchandise. The cargo was covered with tarpaulins and wooden boards. The hatches were sealed and could only be opened by representatives of Republic Flour Mills Corporation. The vessel left Cagayan de Oro for Manila, Republic Flour was advised of its arrival but it did not immediately commence the unloading operations. There were days when unloading had to be stopped due to variable weather conditions and sometimes for no apparent reason at all. When the cargo was eventually unloaded there was a shortage of 26.333 metric tons. The remaining merchandise was already moldy, rancid and deteriorating. The unloading operations were completed twenty (20) days after the arrival of the barge at the wharf of Republic Flour Mills Corporation in Pasig City. The corn grains were examined and it was found that the corn grains had molds due to contact with sea water. The mold growth was only incipient and not sufficient to make the corn grains toxic and unfit for consumption. In fact the mold growth could still be arrested by drying. Republic Flour Mills Corporation rejected the entire cargo and formally demanded from North Front Shipping Services, Inc., payment for the damages suffered by it. The demands however were unheeded. The insurance companies paid Republic Flour Mills Corporation P2,189,433.40. The insurance companies lodged a complaint for damages against North Front Shipping Services, Inc., claiming that the loss was exclusively attributable to the fault and negligence of the carrier. The Marine Cargo Adjusters hired by the insurance companies conducted a survey and found cracks in the bodega of the barge and heavy concentration of molds on the tarpaulins and wooden boards. They did not notice any seals in the hatches. The tarpaulins were not brand new as there were patches on them, contrary to the claim of North Front Shipping Services, Inc., thus making it possible for water to seep in. They also discovered that the bulkhead of the barge was rusty. North Front Shipping averred that it could not be made culpable for the loss and deterioration of the cargo as it was never negligent. The captain of the vessel reiterated that the barge was inspected prior to the actual loading and was found adequate and seaworthy. The tarpaulins were doubled and brand new and the hatches were properly sealed. They did not encounter big waves hence it was not possible for water to seep in. He further averred that the corn grains were farm wet and not properly dried when loaded. 56
TC: DISMISSED ruling that the contract entered into between North Front Shipping and Republic Flour Mills was a charterparty agreement. As such, only ordinary diligence (inspection of the barge by the shipper/reps before loading, issuance of Permit to Sail issued by the Coast Guard) in the care of goods was required of North Front Shipping Services, Inc. CA: ruled that a common carrier is required to observe a higher degree of diligence North Front 777 satisfactorily complied with all the requirements hence was issued a Permit to Sail after proper inspection. ISSUE ON CONTRIBUTORY NEGLIGENCE: WON Republic Flour is guilty of contributory negligence as to the loss and deterioration of the goods? HELD ON CONTRIBUTORY NEGLIGENCE: YES. SC found the consignee Republic Flour Mills Corporation guilty of contributory negligence. It was seasonably notified of the arrival of the barge but did not immediately start the unloading operations. No explanation was proffered by the consignee as to why there was a delay of six (6) days. Had the unloading been commenced immediately the loss could have been completely avoided or at least minimized. As testified to by the chemist who analyzed the corn samples, the mold growth was only at its incipient stage and could still be arrested by drying. The corn grains were not yet toxic or unfit for consumption. For its contributory negligence, Republic Flour Mills Corporation should share at least 40% of the loss. HELD: North Front Shipping is a corporation engaged in the business of transporting cargo and offers its services indiscriminately to the public. It is without doubt a common carrier. As such it is required to observe extraordinary diligence in its vigilance over the goods it transports. When goods placed in its care are lost or damaged, the carrier is presumed to have been at fault or to have acted negligently. North Front Shipping Services, Inc., therefore has the burden of proving that it observed extraordinary diligence in order to avoid responsibility for the lost cargo. North Front Shipping Services, Inc., proved that the vessel was inspected prior to actual loading by representatives of the shipper and was found fit to take a load of corn grains. They were also issued Permit to Sail by the Coast Guard. The master of the vessel testified that the corn grains were farm wet when loaded. However, this testimony was disproved by the clean bill of lading issued by North Front Shipping Services, Inc., which did not contain a notation that the corn grains were wet and improperly dried. Having been in the service since 1968, the master of the vessel would have known at the outset that corn grains that were farm wet and not properly dried would eventually deteriorate when stored in sealed and hot compartments as in hatches of a ship. Equipped with this 57
knowledge, the master of the vessel and his crew should have undertaken precautionary measures to avoid or lessen the cargo's possible deterioration as they were presumed knowledgeable about the nature of such cargo. But none of such measures was taken. In fine, we find that the carrier failed to observe the required extraordinary diligence in the vigilance over the goods placed in its care. The proofs presented by North Front Shipping Services, Inc., were insufficient to rebut the prima facie presumption of private respondent's negligence, more so if we consider the evidence adduced by petitioners g. Stipulations for limitation of liability i. H. E. Heacock Company vs. Macondray & Company, Inc. (DORIA) FACTS: ● Heacock caused to be delivered on board steamship Bolton Castle, 4 cases of merchandise 1 of which contained 12 8day Edmond clocks to be transported from New York to Manila, consigned to Macondray as agent and representative of the vessel. Upon arrival in Manila, neither the master of said vessel nor Macondray delivered to Heacock the Edmond clocks, although demand was made for their delivery. ● The bill of lading issued and delivered to Heacock by the master of the steamship contained the following clauses: ○ 1. It is mutually agreed that the value of the goods receipted for above does not exceed $500 per freight ton, or, in proportion for any part of a ton, unless the value be expressly stated herein and ad valorem freight paid thereon. ○ 9. Also, that in the event of claims for short delivery of, or damage to, cargo being made, the carrier shall not be liable for more than the net invoice price plus freight and insurance less all charges saved, and any loss or damage for which the carrier may be liable shall be adjusted pro rata on the said basis. ● The case containing the Edmond clocks measured 3 cubic feet, and the freight ton value thereof was $1,480, U. S. currency. Heacock declared no more than $500 per freight ton on the clocks, and no ad valorem freight was paid thereon. ● Macondray tendered to Heacock P76.36, the proportionate freight ton value of the Edmond clocks, in payment to the latter's claim. Heacock rejected. Heacock filed before the CFI a complaint for recovery of a sjm of money. ● Heacock insists that it is entitled to recover the market value of the clocks. Macondray, on the other hand, contends that, in accordance with clause 1 of the bill of lading, the plaintiff is entitled to recover only the sum of P76.36, the proportionate freight ton value of the said clocks. The claim of 58
the plaintiff is based upon the argument that the two clause in the bill of lading above quoted, limiting the liability of the carrier, are contrary to public order and, therefore, null and void. The defendant, on the other hand, contends that both of said clauses are valid, and the clause 1 should have been applied by the lower court instead of clause 9. CFI : in favor of Heacock in accordance with clause 9 of the BOL ISSUE: May a common carrier, by stipulations inserted in the bill of lading, limit its liability for the loss of or damage to the cargo only to an agreed valuation? YES HELD: ● Three kinds of stipulations have often been made in a bill of lading. The first is one exempting the carrier from any and all liability for loss or damage occasioned by its own negligence. The second is one providing for an unqualified limitation of such liability to an agreed valuation. And the third is one limiting the liability of the carrier to an agreed valuation unless the shipper declares a higher value and pays a higher rate of freight. According to an almost uniform weight of authority, the first and second kinds of stipulations are invalid as being contrary to public policy, but the third is valid and enforceable. ● A reading of clauses 1 and 9 of the bill of lading here in question, however, clearly shows that the present case falls within the third stipulation, to wit: That a clause in a bill of lading limiting the liability of the carrier to a certain amount unless the shipper declares a higher value and pays a higher rate of freight, is valid and enforceable. ● Where a contract of carriage, signed by the shipper, is fairly made, agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and protecting himself against extravagant and fanciful valuations. ● If a common carrier gives to a shipper the choice of two rates, the lower of the conditioned upon his agreeing to a stipulated valuation of his property in case of loss, even by the carrier's negligence, if the shipper makes such a choice, understandingly and freely, and names his valuation, he cannot thereafter recover more than the value which he thus places upon his property. As a matter of legal distinction, estoppel is made the basis of this ruling, — that, having accepted the benefit of the lower rate, in 59
common honesty the shipper may not repudiate the conditions on which it was obtained, — but the rule and the effect of it are clearly established. ● "A carrier may not, by a valuation agreement with a shipper, limit its liability in case of the loss by negligence of an interstate shipment to less than the real value thereof, unless the shipper is given a choice of rates, based on valuation." ● A limitation of liability based upon an agreed value to obtain a lower rate does not conflict with any sound principle of public policy; and it is not conformable to plain principles of justice that a shipper may understate value in order to reduce the rate and then recover a larger value in case of loss. ● Clauses (1 and 9) of the bill of lading are not contrary to public order. Article 1255 of the Civil Code provides that "the contracting parties may establish any agreements, terms and conditions they may deem advisable, provided they are not contrary to law, morals or public order." Said clauses of the bill of lading are, therefore, valid and binding upon the parties thereto. ii. Shewaram vs. PAL (FRANCISCO) Doctrine: When limitation of carrier’s liability clause is printed at the back of the ticket stub is not binding. Parties: 1. Parmanand Shewaram passenger, Hindu from Davao 2. Philippine Air Lines common carrier Facts: ● A PAL ticket, on the reverse side, stated in fine/small print that if the value of baggage is not stated/dec;ared, and the baggage is lost, the maximum liability of PAL is P100.00 if value in excess of P100.00 is stated, PAL will charge extra because PAL is being held liable for an amount exceeding P100.00. ● Shewaram from Davao, boarded PAL plane for Manila. ● His 3 pieces of baggage were mistagged instead of going to Manila, it was tagged bound to Iligan. ● As a result, when he arrived in Manila, his 3 baggage did not arrive. ○ While his things were in Iligan, his baggage were opened by PAL’s employees to check for owner’s identity. ● When his baggage arrived in Manila, Shewaram checked them and he found out that his transistor radio (cost: P197.00) and his camera (cost: P 176.00) were missing. 60
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PAL offered to pay P100.00 basing from the stipulation written on the reversed side of the PAL’s ticket (limiting PAL’s liability in cases of losses). ● Shewaram refused because he wants full payment. ● Shewaram instituted an action to recover damages suffered by him due to the alleged failure of PAL to observe extraordinary diligence in the vigilance and carriage of his baggage ○ MTC: ordered PAL to pay Shewaram P373.00 (total cost of the missing items) as actual damages, P100.00 as exemplary damages, P150.00 as attorney’s fees. ○ PAL appeal to CFI ■ CFI: modified the judgment by eliminating the award of exemplary damages, the rest were affirmed in toto. ● PAL appealed on the ground that the lower court erred in not dismissing the case or limiting the liability of PAL to P100.00 in relation to the carrier’s liability clause printed at the back of the ticket. Issue: W/N the limited liability rule shall apply in the case favoring PAL. Held: No. ● Under Article 1750 of the NCC, the pecuniary liability of a common carrier may by contract be limited to a fixed amount provided that the contract is reasonable and just under the circumstances and has been fairly and freely agreed upon. ○ Where the conditions printed at the back of the ticket stub are in letters so small that they are hard to read as in the case this would not warrant the presumption that the passenger was aware of those conditions such that he had “fairly and freely agreed” to them. Shewaram is not and cannot, therefore, be bound by the conditions of carriage found at the back of the ticket stub. ○ In other words, the limited liability rule shall not apply. Since the stipulation on a qualified liability, which operates to reduce the liability of the carrier, the carrier and the shipper must agree thereupon. Otherwise, the carrier will be liable for full. PAL is fully liable for full because Shewaram did not agree to the stipulation on the ticket, as manifested by the fact that Shewaram did not sign the ticket. Ticket should have been signed. ○ Carrier cannot limit its liability for loss due to its negligence. SC: Affirmed CFI’s decision. iii.
Ong Yiu vs. CA (GATCHALIAN) 61
DOCTRINE: Contracts of adhesion wherein one party imposes a ready made form of contract on the other, as the plane ticket in the case at bar, are contracts not entirely prohibited. The one who adheres to the contract is in reality free to reject it entirely; if he adheres, he gives his consent. And jurisprudence provides that "a contract limiting liability upon an agreed valuation does not offend against the policy of the law forbidding one from contracting against his own negligence. FACTS: ● Petitioner Ong Yiu (a lawyer and businessman) was a fare paying passenger of respondent Philippine Airlines (PAL) for a flight from Mactan Cebu bound for Butuan City. ● Petitioner is scheduled to attend a hearing CFI Butuan ● As a passenger, he checked in one piece of luggage (blue “maleta”) for which he was issued a claim check. ● Upon his arrival in Butuan City on Aug. 26, 1967, he claimed his luggage but found out that it could not be found. ● PAL Butuan sent a message (teletype operator) to PAL Cebu to inquire about the luggage. ● The luggage must have been transmitted to Manila. PAL Manila wired PAL Cebu and advised the latter that the luggage was carried over to Manila and that it would be forwarded to Cebu on the same day. Instructions were given that it be immediately forwarded to Butuan City on the first available flight. ● PAL Cebu sent a message to PAL Butuan that the luggage would be forwarded the following day, August 27, 1967. However, this message was not received by PAL Butuan as all the personnel had already left since there were no more incoming flights that afternoon. (note: petitioner has no idea about this) ● Worried about his luggage because it contained all the vital documents needed for trial, petitioner wired PAL Cebu in the evening of Aug 26 demanding the delivery of his luggage. PAL Cebu received the telegram the next day and decided not to reply and tell him that his luggage was on its way. PAL Cebu assumed that the luggage would arrive first before the message would be received. ● On Aug 27, the petitioner went to Bancasi Airport (airport of Butuan) to inquire about his luggage. He did not wait, however, for the morning flight. Said flight carried the missing luggage. ● Maximo Gomez, the porter clerk, paged petitioner who already left. A certain Emilio Dagorro who used to drive the petitioner volunteered to deliver the luggage to him. Gomez allowed him to do so because he recognized Dagorro to be petitioner’s driver when he’s in Butuan. 62
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Gomez placed the luggage on the counter, when Dagorro pressed the lock, the luggage opened. He called the attention of Gomez who just examined (not touch) the contents ● When the luggage was delivered to the petitioner, the latter found out the the vital documents were missing. He refused to accept the luggage. Dagorro returned the luggage to Gomez who sealed and forwarded it to PAL Cebu. ● As a result, the petitioner had to request for the postponement of the hearing which was granted. ● Petitioner filed a complaint for damages for breach of contract of transportation against PAL RTC: PAL acted in bad faith and in malice and awarded petitioner with 80k worth of moral damages, 30k exemplary damages, 5k attorney’s fee CA: PAL guilty of simple negligence only. It did not award petitioner the moral and exemplary damages. Ordered PAL to pay petitioner 100phph, the baggage liability PAL assumed under the condition of carriage printed at the back of the ticket. ● Plaintiff's maleta having been pilfered while in the custody of the defendant, it is presumed that the defendant had been negligent. The liability, however, of PAL for the loss, in accordance with the stipulation written on the back of the ticket, Exhibit 12, is limited to P100.00 per baggage, plaintiff not having declared a greater value, and not having called the attention of the defendant on its true value and paid the tariff therefor. The validity of this stipulation is not questioned by the plaintiff. They are printed in reasonably and fairly big letters, and are easily readable. Moreover, plaintiff had been a frequent passenger of PAL from Cebu to Butuan City and back, and he, being a lawyer and businessman, must be fully aware of these conditions. ISSUE: WON the liability of PAL is only 100php? YES HELD: The pertinent Condition of Carriage printed at the back of the plane ticket reads: 8. BAGGAGE LIABILITY ... The total liability of the Carrier for lost or damaged baggage of the passenger is LIMITED TO P100.00 for each ticket unless a passenger declares a higher valuation in excess of P100.00, but not in excess, however, of a total valuation of P1,000.00 and additional charges are paid pursuant to Carrier's tariffs. 63
There is no dispute that petitioner did not declare any higher value for his luggage, much less did he pay any additional transportation charge. But petitioner argues that there is nothing in the evidence to show that he had actually entered into a contract with PAL limiting the latter's liability for loss or delay of the baggage of its passengers, and that Article 1750 of the Civil Code has not been complied with. Art 1750. A contract fixing the sum that may be recovered by the owner or shipper for the loss, destruction, or deterioration of the goods is valid, if it is reasonable and just under the circumstances, and has been fairly and freely agreed upon. While it may be true that petitioner had not signed the plane ticket he is nevertheless bound by the provisions thereof. "Such provisions have been held to be a part of the contract of carriage, and valid and binding upon the passenger regardless of the latter's lack of knowledge or assent to the regulation". It is what is known as a contract of "adhesion", in regards which it has been said that contracts of adhesion wherein one party imposes a ready made form of contract on the other, as the plane ticket in the case at bar, are contracts not entirely prohibited. The one who adheres to the contract is in reality free to reject it entirely; if he adheres, he gives his consent. And jurisprudence provides that "a contract limiting liability upon an agreed valuation does not offend against the policy of the law forbidding one from contracting against his own negligence. Considering, therefore, that petitioner had failed to declare a higher value for his baggage, he cannot be permitted a recovery in excess of P100.00.Besides, passengers are advised not to place valuable items inside their baggage but "to avail of our Vcargo service " It is likewise to be noted that there is nothing in the evidence to show the actual value of the goods allegedly lost by petitioner. iv. British Airways vs. CA (HAUTEA) Mahtani decided to visit his relatives in Bombay, India. In anticipation of his visit, he obtained the services of a certain Mr. Gumar to prepare his travel plans. Since BA had no direct flights from Manila to Bombay, Mahtani had to take a flight to Hongkong via PAL, and upon arrival in Hongkong he had to take a connecting flight to Bombay on board BA. Prior to his departure, Mahtani checked in at the PAL counter in Manila his two pieces of luggage containing his clothings and personal effects, confident that upon reaching Hongkong, the same would be transferred to the BA flight bound for Bombay. 64
Unfortunately, when Mahtani arrived in Bombay he discovered that his luggage was missing and that upon inquiry from the BA representatives, he was told that the same might have been diverted to London. After patiently waiting for his luggage for one week, BA finally advised him to file a claim by accomplishing the “Property Irregularity Report.” Mahtani filed his complaint for damages and attorney’s fees against BA and Mr. Gumar before the trial court BA filed a thirdparty complaint against PAL alleging that the reason for the nontransfer of the luggage was due to the latter’s late arrival in Hongkong, thus leaving hardly any time for the proper transfer of Mahtani’s luggage to the BA aircraft bound for Bombay. PAL filed its answer to the thirdparty complaint, wherein it disclaimed any liability, arguing that there was, in fact, adequate time to transfer the luggage to BA facilities in Hongkong. Furthermore, the transfer of the luggage to Hongkong authorities should be considered as transfer to BA Trial Court: Awarded compensatory damages to Mahtani and dismissed the 3rd party complaint against PAL “Since plaintiff did not declare the value of the contents in his luggage and even failed to show receipts of the alleged gifts for the members of his family in Bombay, the most that can be expected for compensation of his lost luggage (2 suit cases) is Twenty U.S. Dollars ($20.00) per kilo, or a combined value of Four Hundred ($400.00) U.S. Dollars for Twenty kilos representing the contents plus Seven Thousand (P7,000.00) Pesos representing the purchase price of the two (2) suit cases.”
British Airways posits that there should have been no separate award for the luggage and the contents thereof since Mahtani failed to declare a separate higher valuation for the luggage and therefore, its liability is limited, at most, only to the amount stated in the ticket. (Contract of Adhesion) Issues & Held: 1. Whether BA’s contention is correct? NO. We have, nevertheless, ruled against blind reliance on adhesion contracts where the facts and circumstances justify that they should be disregarded. Likewise, the benefits of limited liability are subject to waiver such as when the air carrier failed to raise timely objections during the trial when questions and answers regarding the actual claims and damages sustained by the passenger were asked. Here, BA had waived the defense of limited liability when it allowed Mahtani to testify as to the actual damages he incurred due to the misplacement of his luggage, without any objection. 65
2. Whether the dismissal of the 3rd party complaint of BA against PAL was proper? NO. We cannot agree with the dismissal of the thirdcomplaint. The fourth paragraph of the “Conditions of Contracts” of the ticket issued by BA to Mahtani confirms that the contract was one of continuous air transportation from Manila to Bombay. PAL, in transporting Mahtani from Manila to Hongkong acted as the agent of BA. An agent is also responsible for any negligence in the performance of its function and is liable for damages which the principal may suffer by reason of its negligent act. Hence, the Court of Appeals erred when it opined that BA, being the principal, had no cause of action against PAL, its agent or subcontractor. It is but logical, fair and equitable to allow BA to sue PAL for indemnification, if it is proven that the latter’s negligence was the proximate cause of Mahtani’s unfortunate experience, instead of totally absolving PAL from any liability. Note: Since the instant petition was based on breach of contract of carriage, Mahtani can only sue BA alone, and not PAL, since the latter was not a party to the contract. However, this is not to say that PAL is relieved from any liability due to any of its negligent acts. v. Everett Steamship Corporation vs. CA (MEJILLANO) Doctrine: A stipulation in the bill of lading limiting the common carrier’s liability for loss or destruction of a cargo to a certain sum, unless the shipper or owner declares a greater value, is sanctioned by law, particularly Articles 1749 and 1750 of the Civil Code. It is required that the stipulation limiting the common carrier’s liability for loss must be “reasonable and just under the circumstances, and has been freely and fairly agreed upon.” Facts: Petitioner: Everett Steamship Corporation Private Respondent: Hernandez Trading Co. Private respondent imported three crates of bus spare parts marked as: MARCO C/No. 12, MARCO C/No. 13 and MARCO C/No. 14 from its supplier, Maruman Trading, a foreign corporation based in Inazawa, Aichi, Japan. The crates were shipped from Nagoya, Japan to Manila on board “ADELFAEVERETTE,” a vessel owned by petitioner’s principal, Everett Orient Lines. The said crates were covered by Bill of Lading No. NGO53MN.
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Upon arrival at the port of Manila, it was discovered that the crate marked MARCO C/No. 14 was missing. This was confirmed and admitted by petitioner in its letter of January 13, 1992 addressed to private respondent, which thereafter made a formal claim upon petitioner for the value of the lost cargo amounting 1,552,500.00 yen. However, petitioner offered to pay only 100,000.00 yen, the maximum amount stipulated under Clause 18 of the covering bill of lading which limits the liability of petitioner. “18. All claims for which the carrier may be liable shall be adjusted and settled on the basis of the shipper’s net invoice cost plus freight and insurance premiums, if paid, and in no event shall the carrier be liable for any loss of possible profits or any consequential loss. “The carrier shall not be liable for any loss of or any damage to or in any connection with, goods in an amount exceeding One Hundred Thousand Yen in Japanese Currency (Y100,000.00) or its equivalent in any other currency per package or customary freight unit (whichever is least) unless the value of the goods higher than this amount is declared in writing by the shipper before receipt of the goods by the carrier and inserted in the Bill of Lading and extra freight is paid as required.” (Emphasis supplied) Private respondent rejected the offer and instituted a suit for collection docketed as Civil Case No. C15532, against petitioner before the RTC of Caloocan. RTC:rendered judgment in favor of private respondent. CA:deleted the award of attorney’s fees but affirmed the trial court’s findings with the additional observation that private respondent can not be bound by the terms and conditions of the bill of lading because it was not privy to the contract of carriage. Issues: 1. WON Petitioner is liable for the full amount of Marco C/No.14: NO 2. WON Private Respondent a privy to the contract of carriage: YES Held: 1.
A stipulation in the bill of lading limiting the common carrier’s liability for loss or destruction of a cargo to a certain sum, unless the shipper or owner declares a
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greater value, is sanctioned by law, particularly Articles 1749 and 1750 of the Civil Code which provide: “ART. 1749. A stipulation that the common carrier’s liability is limited to the value of the goods appearing in the bill of lading, unless the shipper or owner declares a greater value, is binding.” “ART. 1750. A contract fixing the sum that may be recovered by the owner or shipper for the loss, destruction, or deterioration of the goods is valid, if it is reasonable and just under the circumstances, and has been freely and fairly agreed upon.” Pursuant to the aforequoted provisions of law, it is required that the stipulation limiting the common carrier’s liability for loss must be “reasonable and just under the circumstances, and has been freely and fairly agreed upon.” The Court held that the stipulations under Clause 18 of the covering bill of lading are reasonable and just. In the bill of lading, the carrier made it clear that its liability would only be up to 100,000.00 yen. However, the shipper, Maruman Trading, had the option to declare a higher valuation if the value of its cargo was higher than the limited liability of the carrier. Considering that the shipper did not declare a higher valuation, it had itself to blame for not complying with the stipulations. 2. In SeaLand Service, Inc. vs. Intermediate Appellate Court (supra), it was held that even if the consignee was not a signatory to the contract of carriage between the shipper and the carrier, the consignee can still be bound by the contract. When private respondent formally claimed reimbursement for the missing goods from petitioner and subsequently filed a case against the latter based on the very same bill of lading, it (private respondent) accepted the provisions of the contract and thereby made itself a party thereto, or at least has come to court to enforce it. Thus, private respondent cannot now reject or disregard the carrier’s limited liability stipulation in the bill of lading. In other words, private respondent is bound by the whole stipulations in the bill of lading and must respect the same. In fine, the liability of petitioner for the loss of the cargo is limited to 100,000.00 yen, pursuant to Clause 18 of the bill of lading. WHEREFORE, the decision of the Court of Appeals dated June 14, 1995 in C.A.G.R. CV No. 42803 is hereby REVERSED and SET ASIDE. h. Liability for baggage of passengers i. Sarkies Tours Philippines, Inc. vs. CA (MEJILLANO) 68
Doctrine: Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods x x x transported by them, “and this liability “lasts from the time the goods are unconditionally placed in the possession of, and received by the carrier for transportation until the same are delivered, actually or constructively, by the carrier for transportation until the same are delivered, actually or constructively, by the carrier to x x x the person who has a right to receive them,” unless the loss is due to any of the excepted causes under Article 1734 thereof. Moral damages and exemplary damages are due where the negligence and bad faith of a common carrier has been duly established. Facts: Petitioner: Sarkies Tours Philippines, Inc. Respondents: Elino Fortades, Marisol Fortades, and Fatima Minerva Fortades On August 31, 1984, Fatima boarded petitioner’s De Luxe Bus No. 5 in Manila on her way to Legazpi City. Her brother helped her load 3 pieces of luggage containing all of her optometry review books, materials and equipment, trial lenses, trial contact lenses, passport and visa, as well as her mother Marisol’s U.S. immigration (green) card, among other important documents and personal belongings. Her belongings were kept in the baggage compartment of the bus, but during a stopover at Daet, it was discovered that all but one bag remained in the open compartment. Some of the passengers suggested retracing the route to try to recover the lost items, but the driver ignored them and proceeded to Legazpi City. Fatima immediately reported the loss to her mother who, in turn, went to petitioner’s office in Legazpi City and later at its head office in Manila. However, they merely offered her P1,000.00 for each piece of luggage lost, which she turned down. Respondents decided to file the case below to recover the value of the remaining lost items, as well as moral and exemplary damages, attorney’s fees and expenses of litigation. They claimed that the loss was due to petitioner’s failure to observe extraordinary diligence in the care of Fatima’s luggage and that petitioner dealt with them in bad faith from the start. Petitioner, on the other hand, disowned any liability for the loss on the ground that Fatima allegedly did not declare any excess baggage upon boarding its bus. 69
TC: adjudged the case in favor of respondents CA: affirmed the trial court’s judgment, but deleted the award of moral and exemplary damages Issue: WON Petitioner is liable for the loss of respondent’s luggage. YES Held: Under the Civil Code, “(c)ommon carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods x x x transported by them, “and this liability “lasts from the time the goods are unconditionally placed in the possession of, and received by the carrier for transportation until the same are delivered, actually or constructively, by the carrier for transportation until the same are delivered, actually or constructively, by the carrier to x x x the person who has a right to receive them,” unless the loss is due to any of the excepted causes under Article 1734 thereof. The cause of the loss in the case at bar was petitioner’s negligence in not ensuring that the doors of the baggage compartment of its bus were securely fastened. As a result of this lack of care, almost all of the luggage was lost, to the prejudice of the paying passengers. The Court agrees with the Court of Appeals in awarding P30,000.00 for the lost items and P30,000.00 for the transportation expenses, but disagrees with the deletion of the award of moral and exemplary damages which, in view of the foregoing proven facts, with negligence and bad faith on the fault of petitioner having been duly established, should be granted to respondents in the amount of P20,000.00 and P5,000.00, respectively. ii. PAL vs. CA (MEJILLANO) Doctrine: The liability of the common carrier for the loss, destruction or deterioration of goods transported from a foreign country to the Philippines is governed primarily by the New Civil Code. In all matters not regulated by said Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by Special Laws. The provisions of the New Civil Code on common carriers are Articles 1733, 1735 and 1753. Facts: Petitioner: Philippine Airlines Private Respondent: Isidro Co
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On April 17, 1985, Co arrived at the Manila International Airport aboard petitioner airline's PAL Flight No. 107 from San Francisco, California. Co proceeded to the baggage retrieval area to claim his check in possession. He found 8 of his luggage, but despite diligent search, failed to locate his 9th luggage. Co then immediately notified petitioner company through its employee, Willy Guevarra, who was then in charge of the PAL claim counter at the airport. Guevarra, filled up the printed form acknowledging one of the Co’s luggage to be missing. Co, on several occasions, unrelentingly called at petitioner’s office in order to pursue his complaint about his missing luggage but no avail. Petitioner never found Co’s missing luggage or paid its corresponding value. Thus, respondent sued the airline for damages. RTC: ruled in favor of Co CA: affirmed RTC’s ruling Petitioner alleges that the appellate court erred in not applying the limit of liability under the Warsaw Convention, which limits the liability of an air carrier of loss, delay or damage to checkedin baggage to US$20.00 based on weight as private respondent Co did not declare the contents of his baggage nor pay traditional charges before the flight. Issue: WON the CA erred in disregarding the limits of liability under the Warsaw Convention. NO Held: The Court find no merit in that contention. In Samar Mining Company, Inc. vs. Nordeutscher Lloyd (132 SCRA 529), the43 Court ruled: The liability of the common carrier for the loss, destruction or deterioration of goods transported from a foreign country to the Philippines is governed primarily by the New Civil Code. In all matters not regulated by said Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by Special Laws. The provisions of the New Civil Code on common carriers are Articles 1733, 1735 and 1753 which provide: Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4 and 5 of the preceding article if the goods are lost, destroyed or deteriorated, 71
common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required in article 1733. Art. 1753. The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration. Since the passenger's destination in this case was the Philippines, Philippine law governs the liability of the carrier for the loss of the passenger's luggage. In this case, the petitioner failed to overcome, not only the presumption, but more importantly, the private respondent's evidence, proving that the carrier's negligence was the proximate cause of the loss of his baggage. Furthermore, petitioner acted in bad faith in faking a retrieval receipt to bail itself out of having to pay Co's claim. WHEREFORE, the petition for review is DENIED for lack of merit. Costs against the petitioner.
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