173a-188

a.) Philippine American General

Insurance Co. Inc. vs CA- SC:
Carrying a deck cargo raises
presumption of unseaworthiness
unless it has been shown that the
deck cargo will not interfere with
proper management of the ship.
b.) Belgian Overseas Chartering &
Shipping N.V. vs Phil First Insuranca
Co., Inc, - Petitioners must exercise
extraordinary diligence even
though it was noted in the bill of
lading that metal envelopes rust
stained and slightly dented, they
did not take precautionary measure
to avoid the deterioration.
c.) Central Shipping Co, Inc. vs
Insurance Co. of North AmericaLogs were stowed in such a way
that there was insufficient
protection to secure the logs from
rolling due to ordinary action of the
sea.
d.) Extraordinary diligence includes
safeguarding shipment from
damage from natural elements like
rainfall hence a carrier is liable if
the goods are stored outside a
warehouse and sustained damage
because of rainfall.
NEGLIGENCE OF CAPTAIN AND CREW
- Failure on the part of the carrier to
provide for a competent captain
and crew is not the same as
negligence of captain and crew
- Ratio: Negligence maybe covered
by Limited Liability Rule (liability of
the shipowner may be limited to
the value of the vessel)
- * If captain and crew are really
incompetent liability rule cannot be
invoked
- There is negligence when: a.)
proceeding with a voyage despite
knowledge of an approaching
typhoon; and b.) crate containing
goods will be dropped while
unloaded from the carried.

RULES ON PASSENGER SAFETY

- Negligence includes failure, on the
part of the captain, crew and
operator, to comply with
regulations of Maritime Industry
Authority (MARINA)
- Memorandum Circular 112: carrier
is bound to carry the passengers
safely as far as human care and
foresight can provide, using utmost
diligence of a very cautious person,
with due regard for all
circumstances. Not enough for
carried to exercise extraordinary
diligence or diligence of a good
father of a family but must include
greatest skill and utmost foresight
- Memorandum Circular 114 provides
preventive safety measures that
are required for all ship owners and
operators of passenger liner vessel:
I. Areas of Concern:
Means of Escape/Emergency Exits:
a.) 2 means of escape/emergency
exits, accessible to passengersmust be in general areas, crew
must ensure unobstructed passage
b.) No locking of doors to said exits,
except crash doors or locking
devices capable of being forced
open in case of emergencypermanent/conspicuous notice
must be posted to this effect on
both sides of the doors exit
c.) Locking of alley/door ways during
ticket inspection/ passenger
counting is prohibited. Passage
ways must always be cleared of
any obstruction ( loose cargoes,
handcarried luggage or furniture)
Handling and Storage of Handcarried
Luggage:
a.) safe and convenient storage must
be provided
b.) luggage must all time not be
permitted to block stairways,
means of escape/exit,

passageways and lifesaving and

firefighting equipment
c.) Atleaast 1 crew member be
stationed, during embarkation and
disembarkation, to
caution/handle/supervise the
storage/retrieval of hand-carried
luggage
Storage of Lifevests/ Lifejackets
- Must be imprinted with vessels
name, must be conspicuously
stored in a locker capable of being
forced upon, and must be readily
accessible for use, in case of
emergency
Closure of Watertight doors, portholes,
ramps and manholes
- Master must ensure all those
mentioned be securely
fastened/locked/checked prior to
leacing port and during the voyage
Wearing of the proper prescribed
uniform by ships officers and crew
and security personnel
- For easy identification and ready
access by passengers, wearing of
proper prescribed uniform and ID is
strictly enjoined
Other Safety measures
- Shipping companies directed to
institutionalized crew and
passenger safety awareness- must
submit to MARINA, within 90 days
of Acts effectivity, their vessel
emergency safety plan.
- Vessel sketches showing the
location of the liferafts/boats and
lifejackets/vests should be
displayed in conspicuous places in
passenger lounge (for 3rd class
accommodation) and inside the
cabin/suites (for 1st and 2nd class)liferafts/boats must be imprinted
with the vessels name and must
be properly secured and readily
accessible, in case of emergency

Prescribed location of firefighting

equipment (fire hose, ax and
extinguisher) shall not be
obstructed.
- Luminous stickers indicating
direction to different exits, viable to
all passenger areas, shall be
provided.
- Emergency lights in all passengers
accomodations, passageways,
alleyways, and stairways, w/c
should automatically switch on in
case of power/generator failure,
must be installed.
- Emergency exits must be provide
with the independent red blinking
lights to guide/assist passengers on
their way out, in case of
emergency.
II. Responsibility of the Master:
- It shall be the duty and
responsibility of the Master of the
vessel to ensure strict adherence to
the directive of this Circular, at all
times and under penalty, as herein
prescribed.
DEVIATION
Art. 359. If there is an agreement
between the shipper and the carrier
as to the road over which the
conveyance is to be made, the
carrier may not change the route,
unless it be by reason of force
majeure; and should he do so
without this cause, he shall be liable
for all the losses which the goods he
transports may suffer from any
other cause, beside paying the sum
which may have been stipulated for
such case.
When on account of said cause of
force majeure, the carried had to
take another route which produced
an increase in transportation
chargers, he shall be reimbursed for
such increase upon formal proof
thereof.

a.) Negligence- carrier taking a shortcut route instead of usual route

exposing vessel to unexpected
hazard
b.) Routes are subject to approval by
MARINA, with respect to carriage of
the sea, and cannot be changed
without authorization from MARINA
c.) Improper deviation may also be
valid ground to deny a marine
insurance claim under Insurance
Code
d.) In cases of transportation by air, in
an airway bill, carrier assumes no
obligation to carry goods in a
particular route or routes is
binding. SC: this airway bill only
serves to insinuate the carrier from
liability in those instances when
changes in routes, flights and
schedules are clearly justified by
the peculiar circumstances of a
particular case or by general
transportation practices, causes
and usages (weather turbulences,
mechanical failure, etc)
TRANSSHIPMENT
- transshipment of freight without
legal excuse, however competent
and safe the vessel into which the
transfer is made, is a violation of
the contract and infringement of
the right of the shipper, and
subject carrier liability incase of
loss
- defined, in Maritime Law, the act
of taking a cargo out of on ship and
loading it in another, or the
transfer of goods from the vessel
before the place of destination
named in the contract has been
reached, or transfer for further
transportation from one ship or
conveyance to another. fact of
actually physical transfer of cargo
from one vessel to another
regardless of ownership of the
transporting ships or conveyances
or change of carriers

EXTRAORDINARY DILIGENCE IN CARRIAGE

BY LAND
- 1st automobile in the Phil, 1903benzene fueled Brazier made in
France
- Condition of the Vehicle
o Common carriers offering
transportation by land are
required to ensure that
vehicles that they are using
are in good order and
condition
o Example: tire blow out,
carrier is liable
- Traffic Rules
o Carrier fails to exercise
extraordinary diligence f it
will not comply with basic
traffic rules
o Art 2185 of Civil Code:
presumption of negligence in
case the accident occurs
while the operator of the
vehicle is violating traffic
rules
o Presumption in the Art above
is not necessary with respect
to common carriers, RATIO:
Art 2185, there must be proof
of violation of traffic rules
BUT under Art 1756, all that
is required is proof of death
or injury to a passenger
o Cases involving breach of
contract of carriage, proof of
violation of traffic rules
confirms failure to exercise
extraordinary diligence
o Basic Traffice Rules: Land
Transporation and Traffic
Code, RA No 4136; other
traffic rules in ordinances by
LGUs and MMDA
- Duty to Inspect
o There is no unbending duty
to inspect each and every
package or baggage brought
inside the bus or jeepney

o Duty of the carrier to conduct

inspection depends on the
circumstances
o Nocum v Laguna Tayabas Bus
Co.: firecrackers goods
allowed on a bus does not
make carrier liable-passenger
is presumed to not take
anything dangerous to the
lives and limbs of his copassengers and himself, right
to privacy must be
considered and passenger
cannot be subject to unusual
search
DUTY TO INSPECT IN CARRIAGE BY SEA
- Duty of the carriage to inspect
cargo/baggage, SC: it is the right
of the carrier to require good faith
on the part of those persons who
deliver goods to be carried, or
enter into contracts with it, and
ianasmuch as the freight may
depend on the value of the
article carrier has right to inquire
as to its valueit is the duty of the
carrier to make inquiry as to the
general nature of the articles
shipped and of their value before it
consents to carry them; and its
failure to do so cannot defeat
shippers right to recovery of the
full value of the package if lost, in
absence of fraud and deceit on the
part of the shipper.
- In the absence of more of definite
information, the carrier has the
right to accept shippers marks as
to the contents of the package
offered for transportation and is not
bound to inquire particularly about
them and where shipper
expressly represents content of a
package to be a designated
character, it is not the duty of
carrier to ask for a repetition of the
statement nor disbelieve it and
open the box and see for itself.
- However where common carrier
has reasonable ground to suspect

that the offered good are of a

dangerous or illegal character, the
carrier has the right to know the
character of such goods and to
insist on an inspection, if
reasonable and practical, under
circumstances , as a condition of
receiving and transporting such
goods.
Common carrier:
o entitled to fair representation
as to the nature and value of
the goods;
o no obligation to inquire into
the correctness or sufficiency
of such information;
o to conduct unusual search,
other than routine inspection,
there must exist proof that
would justify apprehension
that the baggage is
dangerous as to warrant
exhaustive inspection or
even refusal to accept
carriage of the same;
o and failure of the carrier to
act accordingly in the face of
such proof constitutes
carriers liability.

242-243; 246-349
PRESCRIPTION IN INTERNATIONAL
CARRIAGE OF GOODS
- action for damages under COGSA
for international carriage of goods
must be filed within 1 year from
discharge of goods, meaning
prescription begins from moment
of discharge
- Effect of Demand
o Period is not suspend by
extra-judicial demand
o Art 1155 of Civil Code not
applicable bec matters
affecting transporation of
goods by sea should be
decided in as short time
possible- application of prov
will cause delay settlements
of question affecting transpo

Conversion or Misdelivery
o Period does not apply to
conversion/misdelivery,
RATIO: 1 year period
(COGSA)- refers to loss of
cargo not to misdelivery
o Loss- this is lost when it
perishes, or goes out of
commerce, or disappears in
such a way that its existence
is unknown or cannot be
recovered
o Applicable period: 10 years
for breach of written contract
& 4 years for quasi-delict
Delay
o Damage arising from the
delay or late delivery is NOT
the damage or loss
contemplated under COGSA
o Goods are not actually lost or
damages, applicable period
10 yrs
Collision Cases
o Applicable in collision cases
o Rule: 1 yr period starts not
from date of collision but
from date when goods should
have been delivered, had
cargoes been saved
Insurance
o Insurer exercising right to
subrogation is also bound by
1 yr prescriptive period,
RATIO: insurer pursuing
action belonging to
shipper/insured
o Does not apply to claim
against insurer for insurance
proceeds, 10 yr period
applies in this case

RECOVERABLE DAMAGES
Damages
- pecuniary compensation,
recompense, or satisfaction for an
injury sustained, or as otherwise
expressed, the pecuniary
consequences which the law

imposes for breach of some duty or

violation of some rights
Reasons for provisions: Title XVIII
(Damages) was included in the
New Civil Code bec the old Civil
Code had few general principles on
measure of damgages
Extent of Recovery:

Art 2201. In contracts and quasicontracts, the damages for which

the obligor who acted in good faith
is liable shall be those that are the
natural and probable consequences
of the breach of the obligation, and
which the parties have foreseen or
could have reasonably foreseen at
the time the obligation was
constituted.
In case of fraud, bad faith, malice or
wanton attitude, the obligor shall be
responsible for all damages which
may be reasonably attributed to the
non-performance of the obligation
a.) applied to common carriersapplication to contract or carriage,
the carrier in good faith is liable
only for damages that are natural
and probably consequence of
breach of obligation and which the
parties have foreseen or could
have foreseen; if the carrier is in
bad faith or guilty of gross
negligence, it shall be liable for all
damages, foreseen or not
b.) carriers right of recourse- carrier
compelled to pay damages for loss
or damage to the goods or
passengers has the right of
recourse against the employee who
committed the negligent,
intentional, or fraudulent act.
-

Kinds of Damages:

1.) Actual or Compensatory

2.) Moral
3.) Nominal
4.) Temperate or moderate

5.) Liquidated
6.) Exemplary or Corrective
*Art 2216 provides that no proof of
pecuniary loss is necessary in order
that moral, nominal, temperate,
liquidated or exemplary damages
may be adjudicated- assessment of
such damages is left to the courts
discretion, except for liquidated
-

Actual or Compensatory Damages

Article 2109 of Civil Code provides

except as provide by law or by
stipulation, one is entitled to adequate
compensation only for such pecuniary
loss suffered by him as he has duly
proved. Such compensation is referred to
as actual or compensatory damages
Article 2200 provides that
indemnification for damages shall
comprehend not only the value of loss
suffered, but also that of the profits
which the oblige failed to obtain
o 2 kinds of actual or compensatory:
a) loss of what a person
already possesses (dano
emergente)
b) failure to receive as a
benefit that wuld have
pertained to him (lucro
cesante)
Art 2205: Damages may be
recovered:
1.)
For loss or impairment of
earning capacity in cases of
temporary or permanent
personal injury;
2.)
For injury to the plaintiffs
business standing or
commercial credit
o Proof:
Damages cannot be presumed
and courts giving an award,
must point out specific facts
that could afford a basis for

measuring whatever
compensatory or actual
damages are borne
Burden of proof: plaintiff
claiming damages against
carrier
o Value of Goods
Plaintiff is entitled to the value
of the goods at the time of
destruction
Normally, award is the sum of
money which plaintiff would
have to pay in the market for an
identical or essentially similar +
damages for loss of use during
period of replacement.
In case of profit earning
chattels- value of the chattel to
its owner as a going concern at
the time and place of loss must
be assessed
o Damages in Personal Injury Cases
Personal injury and even death
entitled the claimant to all
medical expenses (may include
plastic surgery for restoring part
affected) and other reasonable
expenses for treatment of
injuries
o Damages in Case Death Results
Plaintiff entitled to amount
spent for the wake and funeral
of the deceased; however
expenses after burial is not
compensable
Heirs not entitled to award for
the 9th day, 40th day and 1st yr
death anniv but are entitled to
damages specified in Art 2206:
Art 2206: The amount of damages
for death caused by a crime or
quasi-delict shall be at least three
thousand pesos, even though there
may have been mitigating
circumstances. In addition:
1.)
The defendant shall be
liable for the loss of earning
capacity of the deceased, and
the indemnity shall be paid to

the heirs of the latter; such

indemnity shall in every case
be assessed and awarded by
the court, unless the deceased
on account of the permanent
physical disability not caused
by the defendant, had no
earning capacity at the time of
his death;

2.)

To be continued pg 250