Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Constructive delivery notice was already given to the consignee regarding the
HELD
arrival of the cargoes and the consignee was already given a reasonable time to
1. No. When he purchased ticket from PAL, PAL only used
release it even if there is no actual release
BA as their agent by virtue of an agreement between
There must be an actual war between the country where the common
carrier comes from and the country that confiscated the goods.
(hijackers, thieves, robbers are not considered as public enemy; but a
pirates are considered as such.)
Act of an employee that caused injury to the passenger would still make the
common carrier liable, whether or not the employee is acting in accordance with
his duty; or even if the act of the employee that caused the injury is in violation
of the instruction of the common carrier.
It shall also be noted that, by express provision of the law, an act of a stranger or
co-passenger of the common carrier that caused injury to another passenger
would still make the common carrier liable.
If a passenger was injured and he has not yet paid his fare, then he is not
considered a passenger and the common carrier will not be liable to him; but if
he has an intention to pay even if he has not yet paid, then he can still be
considered as a passenger.
If the passenger was not aware that he rode the wrong bus, he is still considered
as a passenger.
If the passenger pretended to be the owner of a plane ticket and boarded the
plane, he cannot be considered as passenger because there was fraud on his part.
In the case of gratuitous passenger, the common carrier is still liable; but the
liability may be limited depending upon the stipulation of the passenger and the
common carrier. However in the case of an ordinary passenger, the liability of
the common carrier cannot be lessened or diminished by stipulation.
In order to avail limited liability in partial loss there must be a written notice of
insolvent.
abandonment. That the owner is turning over to the predator possessor of the
Possible damages:
thing or abandoning the vessel.
Actual damages
The nature of the claim is in special law that the workers who died in the
o Awarded if there is one or more aggravating circumstances
performance of their duties. It is Workmens compensation claim.
Nominal damages
When all the expenses for repair incurred prior to the voyage, because there was
o Awarded to vindicate the right of the plaintiff.
obligation already arise.
The freight that was paid will not be included in the LLR. It is only the value of
the vessel will be extinguished.
Protests:
Transportation Laws Dec. 10, 2010
Within 24hrs
Code of commerce/ Maritime Law:
Or to the first point of entry in the Philippines
Corporation A - has bus1, bus 2, and bldg.
It is not applicable to all case... Only if the vessel was shipwreck, hurricane, arrival under
The owners of corporation A are:
stress, in case of maritime collision (take note of this, because it involves maritime
B who has a house and lot
vessels and it should be both maritime vessel)
C- who has a car
D who has a car
Corporation has a distinct and separate personality. So the liability of A cannot Where to file? In 1981, the jurisdiction is regarding to the amount involved
In Metro Manila: RTC exceeds 400k
be transfer to B, C ,D...
Outside MM: RTC- exceeds 300k
Nature of liability under maritime law: it is real and hypothetical in nature...
Below this amount above stated: will in Metropolitan Trial Court.
Maritime Collision- there is a need to protest
What does real and hypothetical in nature mean? It is limited liability.
Vessel any barge, lighter, bulk vessel, freighter, passenger freighter, tanker, fishing
Limited liability- in case the vessel is totally loss through the fault or negligence of the boats, contrabands... design and capable of transporting person or cargo from one coast
to another.
captain, the liability of ship owner is extinguished.
Authority: Art. 837 under code of commerce: the owner shall be civilly liable
for the acts of the captain up to the actual value of the ship, freight...
What is the indication of Art 652- the charter party has to be in writing as general rule
EXP: Art 653, if the cargoes be received and the charter party has not yet been
signed then it is understood that it has been executed and the one that will govern the
obligation of the parties are the stipulations in the bill of lading
Kinds of Charter Party:
1. Bare Boat Charter Party or Demise Charter Party
- a person hires the vessel and the crew, and so the charterer would be the one
who would take charge in paying the wages of the crew and in control of
provisioning everything in the vessel, in effect, the crew became the employees
of the charterer
- charterer party would be liable to third persons
- charterer has command, possession and navigation of the vessel; he acts as
owner who handles everything
- only instance where common carrier would be a private carrier
2. Contract of Afreightment charterer hires the vessel either for a deteminate
period of time or per voyage or successive voyages
a. Voyage Charter per voyage or successive voyages
b. Time Voyage fixed time
What if during the chartering, the vessel was found later on not seaworthy anymore?
Instances where cargo is liable for full freight: art 659
- Art 657, the captain is obligated to look for a vessel and continue the voyage
The cargo was sold for the repair, and the vessel reached the destination.
within 150 kilometers from port
- If the captain cant find vessel to deliver he may apply for deposit of the cargo
Under 662, when the vessel was repaired but after the repair the cargo was not
sold and the vessel reached the destination.
Art 658, the freight shall accrue as stipulated in the contract. But if the stipulation is not
Under 663, deterioration due to packing
clear, the rule will be, if on the charter there is a month or a date, then the freight will
Fortuitous event
accrue during the time of the loading. If there is a fixed period, then the fright accrues on
that very date.
When not required to pay a freight?
Who may
contract?
Common
Elements
Loan on Bottomry
Loan on Respondentia
Loan made by ship owner or
Loan taken on security of
ship agent guaranteed by
the cargo laden on a vessel,
vessel itself and repayable
and repayable upon safe
upon arrival of the vessel at
arrival of cargo at
destination
destination
Ship owner
Owner of the cargo
Ship agent
Outside of the residence of
the owners - captain
Elements
Exposure of security to marine peril
Obligation of the debtor conditioned only upon safe arrival of
the security at the point of destination
Forms
Public instrument
Policy signed by the contracting parties and the broker taking
part therein
Private instrument
Contents
Kind, name and registry of vessel
Name, surname and domicile of the captain
Names, surnames and domiciles of the borrower and lender
Amount of the loan and the premium stipulated
Time for repayment
Loan on Respondentia
Cargo owner have the right to
enter into a LOR
Captain - NOT owner of cargo
thus they cannot contract a LOR.
If he does such then he shall be
chargeable solely for the LOR.
Yes.
Because it has interest in the subject matter
1. if the loss is caused by the inherent defect of the cargo
Insurance
and
loan Co exist
2. fault of borrower himself
Once
insurance
and loan co-exist, both shall be liable for damages in proportion
3. Barratry or malice on the part of the captain of the vessel
to
their
interest
4. If the damage was caused because the borrower was engaging in contraband
Difference of Insurance and LOB/LOR:
goods
Insurance
LOR/LOB
5. If the goods loaded were different from that designated in the contract
in
case
of
loss,
may
be
paid
anytime
in
LOB/LOR: there should be the presence
RULE ON OBLIGATION: GENERAL AVERAGE
all
events
even
without
marine
risk
of marine risk; in case of loss, loan is
- RULE in obligation when it comes to General Average (expense on
extinguished
deterioration): incurred to save cargo or vessel by jettisoning owners and
lender benefited from such
Preference of Credit
LENDER : GENERAL AVERAGE
Ex. Series of loans were made = Manila Iloilo Cebu (100k) CDO; vessel
- Lender shall suffer or share in proportion to their respective interest in General
not longer worthy to travel and so was sold for 110k
Average which may take place in the goods in which the loan is made (Art. 732)
- first to be paid in the loan made in Cebu (100k) then pay Iloilo (10k) dont
Instances when the charterer will not pay freight anymore?
proportionate anymore, pay everything that is left if the loan is bigger than the
If goods were lost on account of:
difference
1. Shipwreck or stranding
- last one has preference, because of the principle that the last loan incurred saved
2. Due to seizure by pirates or enemies
the cargo or vessel and so preference must be given since first loan also
If paid in advance then it shall be returned UNLESS there is an agreement to
benefited
the contrary
Inverted Order
- Important thing to determine is the kind of average because if it is an average
1. Loan contracted during voyage has preference over those contracted before
then the next thing you should think of is who will bear the loss?
the voyage
2. Loan contracted during last voyage take preference over earlier voyage
2 KINDS OF AVERAGE
3. Different loans made on the same port shall be paid on a pro rate basis
I.
Simple or Particular Average
- Example:
expenses or damages to the vessel or her cargo which do not inure the common
benefit of those who are interested; loss borne by the owner of the cargo or
LOAN
vessel itself;
MANILA
Php 20,000
a. Art. 809: losses suffered by the cargo from the time of its embarkation
ILOILO Php 10,000
until it is unloaded either by the inherent defect of the cargo or through
CEBU Php 100,000
force majeure
VESSEL SOLD IN AN AUCTION:
b. wages and victuals or provisions of the workers depends whether
CDO
- Php 110,000
the vessel is chartered on a fixed voyage or a monthly charter
- During quarantine, wages and victuals are only Particular Averages
APPLYING RULE: CEBU ILOILO MANILA
a.
Damages inflicted upon the vessel or cargo by reason of
impact or collision with another if it is accidental and inevitable
b.
Damages suffered by the cargo through the fault or
negligence
of the captain of the vessel, the owner of cargo bears loss
Loan Php 70M
without
prejudice
in filing a case against the owner of the vessel
Actual Value Php 50M
EXAMPLE:
Then Php 50M shall be a valid loan but the Php20M will be converted
into a simple loan
Ex: American corporation loaded equipment and agricultural machineries on a German
vessel for Russia but during the voyage, a war brought out in Russia and Germany, so the
vessel decided to go to Philippine port to seek refuge. Who would bear the expenses
Due to Fraud acquired a high loan than the actual amount of the goods secured
while in the Phils? General or Particular?
- Particular only, the risk is not common (because of war, and so safety to the
vessel only and not the cargo because the latter is a legal material, therefore,
Transpo Lecture - Average and Collision (February 4, 2011)
owner of vessel shall incur loss)
AVERAGE
II.
General or Gross Average- Art 811: expenses or losses deliberately incurred
- Expenses and damages of the vessel or to the cargo (ex. Extraordinary,
for the purpose of saving the vessel or cargo or both from real marine risk;
accidental expenses, loss or deterioration)
not accidental
- Who will shoulder loss in damages and expenses? Identify what kind of average
NOTES ON GENERAL & PARTICULAR
first!
- if monthly then wages and victuals of the crew for the reason that the vessel
- GR: nothing more than expenses and damages
was detained, then General Average
- EXP: Art. 806 technical meanings:
- if fixed voyage charter, only Particular Average
1. Average is all extraordinary and accidental expenses incurred during the
Magsaysay case: SC gave requisites of General Average (TAKE NOTE AND
voyage for the preservation of the vessel, cargo or both
MEMORIZE)
2. Average refers to damages and deterioration suffered by the vessel from the
a. There must be a common risk which is certain and imminent
time it is put in sea until it arrives at the port of destination and also those
b. Part of the vessel or cargo or both is sacrificed deliberately
suffered by the cargo from the time it is loaded to the vessel until it arrives
c. The sacrifice was successful
in the place of destination for unloading
d. The expenses or damages should be incurred or inflicted after taking
Art. 807
proper judicial steps; captain cannot do it discriminately
- Petty and ordinary expenses or expenses incidental to navigation (pilotage,
i. There must be an assembly of saving made with the captain
lighterage, inspection, health, maritime fee) should be borne by the owner of the
ii. Coming out with a resolution
ship because these are expenses in order to travel or have a voyage
- In Zone 1 and 2, the one who made an error should be the one liable
If it is an arrival under stress, CC will not be liable for the damages suffered by
In Manila, the vessel arrives to port, captain would delegate the anchoring and
the cargo/ vessel. If it is not a legitimate arrival under stress, ship owner will suffer the
positioning to a pilot because he is more eligible in maneuvering big vessels
If accident happens during the maneuvering of the pilot, is captain still liable? damage as to the vessel; and cargo owner as to the cargo.
Yes. But captain has recourse against the pilot. Because the captain is still there
Even the presence of valid reasons will not automatically mean an arrival under
to ensure that maneuvering is done properly
stress
because
there are formalities that must be observed.
GR: Protest is always needed in maritime collision. No damages without protest.
Given within 24 hours at the place of collision or at the port of destination.
Steps to be taken to determine the propriety of arrival under stress: (MEMORIZE)
(condition precedent)
1. Determination must be made by the Captain
Other instances wherein Protests are needed before filing for reconveyance:
2. Summon all officers and those who have interest over the vessel; but the latter
needed only in maritime vessels
have no voting rights
a. arrival and distress
3. Deliberation and objections
b. shipwreck
4. In case there will be disagreements, decision of the captain will still prevail
c. collision
d. when the vessel has gone through a hurricane
Instances when arrival under stress is not valid:
contributory negligence NOT APPLICABLE both are still at fault
1.
If the lack of provision is caused by failure of the captain to
EXP: Case: Ferry carrying passengers to Iloilo. There is a small vessel carrying
observe the usage and the customs of the particular place, and the distance of the
passengers to the Ferry. Due to the fault of the one handling the small vessel, it
voyage.
went near the propeller of the ferry and so it sunk and one of the passengers was
2.
No well-founded fear of seizure by pirates and priviteer
severely injured. They filed a case against the vessel but the latter argued that
3.
Vessel is defective caused by the fact that it was not maintained
case would not prosper because there was no protest. SC ruled that protest is
nor repaired prior to the voyage.
not needed when there is injuries to persons or passengers and what was
involved is not a maritime vessel since it is only a small vessel
Article 822: The scenario is that there is a need to repair the vessel but the cargo is
- Other EXPs:
already loaded. The cargo should be unloaded from the vessel. Who will shoulder the
a. the one involved (cargo) is not on board the vessel
expenses?
b. the person involved is not in the capacity to make the protest (applicable
The owner of the vessel if the purpose is to preserve the vessel.
also in the said case because the victim was in the hospital for 6 months)
If the purpose is to protect the cargo=the owner of the cargo.
c. the means used is not a maritime vessel
If the reason is for both= both of them proportionally
Article 823: Custody of the cargo after temporarily unloaded is still under the captain,
which makes him liable in case of damages or loss. (EXCEPTION: if due to force
majeure)
If the cargo was already damaged (partly or wholly), the captain has to apply in
If the common carrier (cc) is bound to travel, the route stipulated shall not be
the proper judicial authority for the sale of the cargo. In order to effect the sale, captain
violated. Otherwise, there will be deviation. If there is deviation, cc will be liable even if must comply with certain formalities such as publishing, acquiring consent from persons
loss or damage was due to a fortuitous event. It is the same thing with delay.
who have interests over the cargoes.
In arrival under stress, vessel does not reach its destination. It anchors to the
nearest port or most convenient port. This is not considered deviation.
The captain shall be responsible for delay. If the cause of arrival under stress has
ceased, he shall continue with the voyage. If he does not continue, then there is delay.
What should the captain do after the reasons for AUS ceases to exists
- After the fear already ceases the captain shall decide after following the
steps (stepsdetermine the propriety)
Then he shall continue the voyage. Upon delay the captain shall be liable
(823)
Exception to DEVIATION
When is salvage necessary? If there is a derelict-- cargo or vessel has been abandoned
by the captain and the crew, without intention of recovering the same or when safety is
already beyond their control. If there is till intention to recover, it is not considered a
derelict.
- It can be a subject to salvage if it is a derelict
Who will shoulder the damages?
- Derelict: abandonment + no intent to recover
1. Ship owner as to the vessel;
- NOTE: intention to recover must be from the beginning
2. Cargo owner as to the cargo
- Example: If the crew abandoned the ship and had originally not intent to
assuming that there was no malice, negligence, lack of foresight, or lack of
recover but later on when they arrive on the shore they saw useful items to
skill on the part of the captain. Otherwise, indemnity may be demanded
help in salvaging. Thus they decided to return, upon returning they saw
from him.
salvager. In this case the ship was already considered derelict since intent
must be from the time the ship circumstance for abandonment happened.
Captain will be personally liable if:
Salvage in this case is valid.
1. there is malice, negligence, lack of foresight, lack of skill
- QUASI DERELICT vessel is not valid but it is already beyond the power
the vessel that was put to sea was insufficiently repaired.
of the crew to save (ex: vessel is already at the mercy of the sea)
Shipwreck
Injuries or loss suffered by the vessel because of the swallowing by the waves,
or grounding or running an object in the sea, rendering it incapable for navigation.
Grounds
Shipwreck
1. swallowing of waves
2. grounding or running an
object in the sea (marine
perils)
Circumstance
vessel
Liability
Shouldered by the
individual owners
Invalid Salvage
Liability of damages
3. vessel shipowner
4. cargo - cargo owner
Sued for damages (captain/agent)
Actual case: M/V Alfonso owned by William Lines was giving distress signals.
Salvage reward must not exceed 50% of the value of the goods salvaged.
The engine stopped causing the vessel to drift away. The weather was perfectly
fine. Capt. Barios, captain of another vessel M/V Henry, responded to the
signals and towed the vessel to a safer place and the vessel was saved. William Things that have to be paid by the owner:
Expenses for custody
Lines waived renumeration. Capt. Barios filed a case for a salvage reward. Is he
Advertisement
entitled to a reward? Court said that there is no marine peril. (Barrios vs Go
Thong)
auction sale
taxes over the goods when it was brought to the country
He, who shall save merchandise at sea, has the obligation to deliver it to the
expenses for salvage
collector of custom or treasurer or mayor. Otherwise, he can be held criminally
salvage reward
liable or will not be rewarded salvage fee.
Contract of towage vs. salvage
If the one who salvaged sought for the help of another vessel but the shipowner was
Salvage
Towage
not there, then 50% of the salvage fee will go to the owner, 25% will go to the captain,
Towing in order to that it may be
Towing may be an act of salvaging
another 25% will go to the crew of the vessel. (Sec 13 Act No 2616 Salvage Law)
considered salvage unless all requisites
of salvage concur
No claim 3 months after publication by the authorities of salvage report
all the crew of the vessel who undertook In towage, they will not a receive a
- the things saved shall be sold at a public auction, proceeds of which shall be
the salvage will receive a reward
reward, only their salaries (fees belong to
deposited in the National Treasury after deducting the expenses and the
the owner of the tugboat)
proper reward to which the salvor is entitled.
Requires success, otherwise no payment
Success is not required
Vessel must be involved in an accident
Vessel need not be involved in an
No claim after 3 years of the deposit
accident
- 50/50 - half of the proceeds will go to the finder and half will go to the
government.
How to determine the bond to be posted?
Customs or the judge of the RTC where the goods where recovered will be the
one to determine the amount of bond.
COGSA Carriage of Goods by Sea Act (enacted by US Govt. Act. 521, 1936)
Obligation of collector of custom
Primary Law that will govern transportation by sea is the Civil Code. Why Civil
1. safeguard and inventory of goods
Code? Latest law will be the governing law.
2. subject the goods to public auction if the conservation is prejudicial to the owner
and when no objection was made.
a. advertisement (30 days after salvage)
COGSA- General Rule: Only for international shipment (not for coastwise)
Exception: when there is a stipulated transshipment
4. Air transportation: Civil Code and Code of commerce (local); or Warsaw Convention
(international) especially when the parties are highly contracting parties. If the flight is Special Contracts
from a country that the parties are not highly contractingWarsaw convention will not
Charter party
apply.
1. Transportation of cargoes
Stipulation as to the liability is valid: must be in writing, must be reasonable,
must be for a consideration other than the freight.
2. Transportation of passengers
Generally, limiting the liability is void except for gratuitous passenger.
Exception to the exception: if there is negligence but not for gross negligence or willful
act.
General- inures to the benefit of everyone. All who benefited must share to pay the
expenses.
Special/Particular- expense inures only to the benefit of a particular person.
*If the person is not a passengerthen CC is not liable. Basis: contract of carriage.
COGSA
Average
1. Land: visible only to the naked eye unless there is imminent danger or strong suspicion
2. Airline: it is a must
* If the damage is apparent, notice of damage must be filed. Not apparent=notice of
damage must be filed within 3 days.
Law on bottomry (vessel) and respondentia (cargo)
-A loan, payment of which is subject to marine risk
* Failure to file within 3 days does not bar one to file a case. The purpose of the notice is
-If the cargo or vessel is safe then the debtor is obligated to pay.
to show that there was damage. If it was not filed, then there is a presumption that the
-If there is no stipulation then it is presumed that it is a roundtrip risk.
cargo was received in the same condition as it was loaded.
* Loan more than the value of the cargo or vessel through fraud is still valid but only up
to the amount of the cargo or vessel.
* Must be filed within 1 year even without notice of damage in case of Common Carrier.
If filing for recovery for damage against insurance company, the prescription period is 10
Order of payment
years.
-Those transactions made during the voyage has preference than those made
before the boat was put into voyage.
-Inverse preference.
-Those loans taken in the same place and time during the shipwreck, the debtors
will share payment pro rata.
Shipwreck