Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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I. General Considerations
A. Public Utilities
1. Article XII, 1987 Constitution
Art. XII, Section 11. No franchise, certificate or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines or to
corporations or associations organized under the laws of the Philippines at least 60% of whose
capital is owned by such citizens, nor shall such franchise, certificate or authorization be exclusive
in character or for a longer period than fifty years. Neither shall any franchise or right be granted
except under the condition that it shall be subject to amendment, alteration or repeal by the
Congress when the common good so requires. The State shall encourage equity participation in
public utilities by the general public. The participation of foreign investors in the governing body
of any public utility enterprise shall be limited to their proportionate share in its capital, and all
the executive and managing officers of such corporation or association must be citizens of the
Philippines.
Section 17. In times of national emergency, when the public interest so requires, the State
may, during the emergency and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately owned public utility or business affected with public interest.
Section 18. The State may, in the interest of national welfare or defense, establish and
operate vital industries and, upon payment of just compensation, transfer to public ownership
utilities and other private enterprises to be operated by the Government.
Section 19. The State shall regulate or prohibit monopolies when the public interest so
requires. No combinations in restraint of trade or unfair competition shall be allowed.
(a) What is a public utility?
A public utility is a business or service engaged in regularly supplying the public with some
commodity or service of public consequence such as electricity, gas, water, transportation, telephone or
telegraph service. Apart from statutes which define the public utilities that are within the purview of
such statutes, it would be difficult to construct a definition of a public utility which would fit every
conceivable case. As its name indicates, however, the term public utility implies a public use and
service to the public. (Am. Jur. 2d V. 64, p.549.) (Albano vs Reyes)
(b) What is a public service?
On 20 April 1987, the Phil. Ports Authority (PPA) adopted a resolution directing mgmt. to prepare the
Invitation to Bid and all relevant bidding documents necessary for the public bidding of the development,
mgmt., and operation of the Manila Intl. Container Terminal (MICT) and authorized the Board Chairman
Secretary Reyes to oversee and implement the project.
Secretary Reyes created a 7-man MICT Bidding Committee to evaluate all bids and recommend to the
Board the best bid. The PPA published the Invitation to Bid with the reservation that it had the right to reject
any bid and to accept such bid it may deem advantageous to the govt.
Seven companies submitted bids. The Committee recommended that the contract be awarded to Intl.
Container Terminal Services (ICTSI) on the ground that it offered the best technical and financial proposal.
Secretary Reyes awarded the contract to ICTSI. Before the contract could be signed, two cases were filed
questioning the legality or regularity of the bidding. The first was a special action for prohibition with prelim
injunction filed by Alo, a concerned taxpayer. The second was a civil case for prohibition with prayer for TRO
filed by Sharp Co. which actively participated in the bidding.
The President approved the proposed MICT contract. The PPA and ICTFSI perfected the contract.
Rodolfo Albano, a member of the House of Representatives filed the present case assailing the award of the
contract on the ground that since the MICT is a public utility, it needs a legislative franchise before it can
legally operate as a public utility.
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o Section 18 - It shall be unlawful for any individual, co- partnership, association, corporation or
joint-stock company, their lessees, trustees or receivers xxx to engage in any public service
business without having first secured from the commission a certificate, except grantees of
legislative franchises expressly exempting such grantee from the reqts of securing a certificate from
the commission, as well as those expressly exempted from the jurisdiction of the commission
Section 19. Unlawful acts - It shall be unlawful for any public service :
(a) To provide or maintain any service that is unsafe, improper or inadequate ,or withhold
or refuse any service which can reasonably be demanded and furnished, as found and determined
by the commission in a final order which shall be conclusive and shall take effect in accordance
with this act, upon appeal or otherwise.
(b) To make or give, directly or indirectly, by itself or through its agents, attorneys or
brokers, or any of them, discounts or rebates on authorized rates, or grant credit for the payment
of freight charges, or any undue or unreasonable preference or advantage to any person or
corporation or to any locality or to any particular person or corporation or locality or any
particular description of traffic or service, or subject any particular person or corporation or
locality or any particular description of traffic to any prejudice or disadvantage in any respect
whatsoever; to adopt, maintain, or enforce any regulation, practice or measurement which shall be
found or determined by the commission to be unjust, unreasonable, unduly preferential, or
unjustly discriminatory, in a final order which shall be conclusive and shall take effect in
accordance with the provisions of this act, upon appeal or otherwise.
(c) To refuse or neglect, when requested by the director of posts or his authorized
representative to carry public mail on the regular trips of any public land transportation service
maintained or operated by any such public service, upon such terms and conditions and for a
consideration in such amount as may be agreed upon between the Director of Posts and the public
service carrier or fixed by the commission in the absence of an agreement between the Director of
Posts and the carrier. In case the Director of Posts and the public service carrier are unable to
agree on the amount of the compensation to be paid for the carriage of the mail, the Director of
Posts shall forthwith request the commission to fix a just and reasonable compensation for such
carriage and the same shall be promptly fixed by the commission in accordance with section 16 of
this act.
Section 20. Acts requiring the approval of the Commission - Subject to established
limitations and exceptions and saving provisions to the contrary, it shall be unlawful for any public
service or for the owner, lessee or operator thereof, without the approval and authorization of the
Commission previously had (a) To adopt, establish, fix, impose, maintain, collect or carry into effect any individual or
joint rates, commutation, mileage or other special rate, toll, fare, charge, classification or itinerary.
The Commission shall approve only those that are just and reasonable and not nay that are
unjustly discriminatory or unduly preferential, only upon reasonable notice to the public services
and other parties concerned, giving them a reasonable opportunity to be heard and the burden of
the proof to show that the proposed rates or regulations are just an reasonable shall be upon the
public service proposing the same.
(b) To establish, construct, maintain or operate new units or extend existing facilities or
make any other addition to or general extension of the service.
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Nicanor de Guzman signing as Guzco Transit purchased trucks from Luneta Motor and executed PNs
guaranteed by a chattel mortgage on several trucks. Failing to pay the PNs, a suit for collection was filed. A
writ of attachment was issued and garnishment was served on the PSC attaching the right, title, and
participation of Guzco Transit in the CPC covering the bus transportation lines between Manila and Rizal. The
CFI ordered the selling of these certificates in a public bidding in which Luneta Motor was the highest bidder.
Nine days after the certificates were attached, these were sold to Raymundo (including certificate No.
25951 which was not included in the sale to Luneta Motor Co.). The approval of the sale was sought from the
PSC. The PSC approved the sale in the public bidding and disapproved the sale to Raymundo except with
respect to Certificate No. 25951 which Raymundo could apply for its approval.
Issue : Which of the two sales should prevail? public auction by virtue of an attachment vs voluntary
sale
Held : Sale to Luneta Motor Co. in a public auction
The Public Service Law authorizes certificates of public convenience to be secured by public
service operators from the PSC. A CPC grants a right in the nature of a limited franchise. The Code of
Civil Procedure does not exclude franchises or certificates from the word "property." The test by which
to determine WON a property can be attached and sold upon execution is whether the judgment debtor
has such a beneficial interest therein that he can sell or otherwise dispose of it for value. The Public
Service Law permits the PSC to approve the sale, alienation, mortgaging, encumbering or leasing of
property, franchises, privileges, or rights or any part thereof. If the holder of a certificate can voluntary
sell it, there is no reason why the same cannot be sold involuntarily pursuant to court process.
CPCs have considerable material value. They are valuable assets. They are subject to being sold
for consideration as much as any other property. They are even more valuable than ordinary properties,
taking into consideration that they are not granted to every one who applies for them but only to those
who undertake to furnish satisfactory and convenient service to the public. Though intangible, they are
of value and are considered properties which can be seized through legal process.
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Orlanes sought to have a CPC to operate a line of auto trucks with fixed times of departure between
Taal and Bantilan, with the right to receive passengers and freight from intermediate points. The evidence is
conclusive that at the time of his application, Orlanes was an irregular operator between Bantilan and Taal, and
that BTC was a regular operator between Batangas and Rosario. Orlanes sought to have his irregular operation
changed into a regular operation, and to set aside and nullify the prohibition against him in his CPC that he
shall not have or receive any passengers or freight at any of the points served by the BTC which holds a prior
license from the PSC. His petition is based on the fact that to comply with the growing demands of the public,
the BTC applied for a permit to increase the no. of trip hours at and between the same places and for an order
that all irregular operators be prohibited from operating unless they should observe an interval of 2 hours before
or one hour after the regular hours of the BTC. The PSC granted the petition of Orlanes.
Issue : WON a CPC should be issued to a second operator in a field where, and in competition with, a
first operator who is already operating a sufficient, adequate and satisfactory service.
Held : NO. Decision of PSC is revoked.
An autobus line is a public utility, and as such, is a common carrier and an impt. factor in the
business affairs of the community.
The PSC has the power to specify and define the terms and conditions upon which any public
utility shall operate and to make reasonable rules and regulations for its operation, and to fix the
compensation that it shall receive for its service to the public, and for good cause may suspend or even
revoke a license granted.
It is not the policy of the law for the PSC to issue a CPC to a second operator to cover the same
field and in competition with a first operator who is rendering sufficient, adequate and satisfactory
service, and who in all things and respects is complying with the rules and regulations of the PSC.
The power of the PSC to issue a CPC is founded on the condition precedent that after a full
hearing and investigation, it shall find as a fact that the proposed operation is for the convenience of the
public.
So long as the first operator keeps and performs his terms and conditions of its license and
complies with the reasonable demands of the public, it has more or less of a vested and preferential
right over another who seeks to acquire a later license to operate over the same route.
To carry out the purpose and intent for which the PSC was created, the law contemplates that
the first license will be protected in his investment and will not be subjected to ruinous competition.
The primary purpose of the PSC is to secure adequate, sustained service for the public at the
least possible cost and to protect and conserve investments which have already been made for that
purpose. A CPCN for the operation of an auto truck line in occupied territory should not be granted
where there is no complaint as to existing rates and the co. in the field is rendering adequate service. It
is the duty of the PSC to protect rather than to destroy the investment of a public utility.
The policy of regulation upon which the present public utility commission plan is based and
which tends to do away with competition among public utilities as they are natural monopolies, is at
once the reason that the regulation of an existing system of transportation, which is properly serving a
given field, or may be required to do so, is to be preferred to competition among several independent
systems. While requiring a proper service from a single system for a territory in consideration for
protecting it as a monopoly for all the service required and in conserving its resources, no economic
waste results and service may be furnished at a minimum cost.
Carmelo vs Monserrat 55 Phil 644
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Monserrat twice applied to Congress for an exclusive franchise to operate a taxicab service in Manila.
The Governor General twice vetoed the bill. Monserrat then applied to the PSC for a CPC. It was granted.
Carmelo and Oriol then applied to the PSC for a CPC to operate a taxicab service within Manila.
Monserrat opposed. The PSC denied the application.
Held : There is no valid, legal reason why Monserrat should have the exclusive right of operating a
taxicab service. In the granting and refusal of a CPC, the question is what is for the best interest of the
public. Tested by that rule, it is hard to conceive how it would be for the best interests of the public to
have one taxicab service only, and how the public would be injured by the granting of the certificate in
question, for it must be conceded that two companies in the field would stimulate the business, and the
public would much sooner and much easier become educated in the use of taxi.
Monserrat does not have a vested right in the business of any person that might want the use of
a taxi, for the simple reason that the use of any taxi is the sole discretion of the customer. This is unlike
the BTC case which dealt with an autobus service with fixed schedules and routes.
Pantranco operates passenger buses from Metro Manila to Bicol and Eastern Samar. It wrote to the
Maritime Industry Authority (MARINA) requesting authority to lease/purchase MV Black Double to be used in
operating a ferryboat service from Matnog, Sorsogon and Allen, Samar that will provide service to co. buses
and freight trucks that have to cross the Bernardo Strait. MARINA denied the petition on the ground that the
Matnog- Allen run is adequately serviced by the Cardinal Shipping Corp. and Epitacio San Pablo and that
market conditions cannot support the entry of additional tonnage.
Pantranco acquired the vessel. It then applied to BOT claiming that it can operate a ferry service in
connection with its franchise for bus operation in the highway from Pasay City to Tacloban City for the purpose
of continuing the highway, which is interrupted by a small body of water, and that the proposed ferry operation
is merely a necessary and incidental service to its main service and obligation of transferring passengers from
Pasay City to Tacloban City. Accdg. to it, there is no need to obtain a separate CPC to operate a ferry service to
cater exclusively to its passenger buses and ferry trucks. Pantranco began operating its ferry service. The BOT
held that the ferryboat service is part of Pantranco's CPC and amended Pantranco's CPC to provide so. The two
other ferry boat services filed motions for reconsideration.
Issue : WON the sea can be considered as a continuation of the highway. WON a land transpo co. can
be authorized to operate a ferry service or coastwise or interisland shipping service along its authorized
route as an incident to its franchise without the need of filing a separate application for the same.
Held : The water transport service between Matnog and Allen is not a ferryboat service but a coastwise
or interisland shipping service. Before private respondent may be issued a franchise or CPC for the
operation of the said service as a common carrier, it must comply with the usual reqts. of filing an
application, payment of the fees, publication, adducing evidence at a hearing and affording the
oppositors the opportunity to be heard.
Considering the environmental circumstances of the case, the conveyance of passengers from
Matnog to Allen is not a ferryboat service but a coastwise or interisland shipping service. Under no
circumstances can the sea between Matnog and Allen be considered a continuation of the highway.
While a ferryboat service has been considered as a continuation of the highway when crossing rivers or
even lakes, which are small body of waters separating the land, however, when as in this case the two
terminals are separated by an open sea, it cannot be considered a continuation of the highway.
Pantranco must secure a separate CPC for the operation of an interisland or coastwise shipping service.
Its CPC cannot be merely amended to include this water service under the guise that it is a mere private
ferry service.
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(c) Water
(i) Maritime Industry Authority
EO 125, Sec. 14 as amended by EO 125-A, Sec. 3
The Maritime Industry Authority is hereby retained and shall have the ff. functions:
a. develop and formulate plans, policies, projects xxx geared toward the promotion and
devt. of the maritime industry, the growth and effective regulation of shipping enterprises, and for
the national security objectives of the country;
b. establish, prescribe and regulate routes, zones and/or areas of operation of particular
operators of public water services;
c. issue CPCs for the operation of domestic and overseas water carriers;
d. register vessels as well as issue certificates, licenses or document necessary or incident
thereto;
e. undertake the safety regulatory functions pertaining to vessel construction and
operation including the determination or manning levels and issuance of certificates of competency
to seamen;
f. enforce laws, prescribe and enforce rules and regulations, including penalties for
violations thereof, governing water transportation and the Phil. merchant marine xxx;
g. undertake the issuance of licenses to qualified seamen and harbor, bay and river pilots;
h. determine, fix, prescribe charges/rates pertinent to the operation of public water
transport utilities xxx;
i. accredit marine surveyors and maritime enterprises engaged in shipbuilding, ship repair
xxx;
j. issue and register the continuous discharge book of Filipino seamen;
k. establish and prescribe rules and regulations, standards and procedures for the efficient
and effective discharge of the above functions;
l. perform such other functions as may now or hereafter be provided by law.
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Tan Piaco rented two automobile trucks and was using them upon the highways of Leyte for the
purpose of carrying some passengers and freight. He carried passengers and freight under a special contract in
each case and had not held himself out to carry all passengers and freight for all persons who might offer
passengers and freight. He was convicted for violation of the Public Utility Law for operating a public utility
without permission from the Public Utility Commission.
A Peruvian firm shipped fishmeal through the SS Crowborough consigned to the SMB and insured by
the Home Insurance Co. The cargo arrived with shortages. SMB demanded and Home Insurance Co. paid
P14,000 in settlement of SMB's claim. Home Insurance filed for recovery from Luzon Stevedoring and
American Steamship Agencies. Luzon Stevedoring claimed that it merely delivered what it received from the
carrier in the same condition it received it. American Steamship contended that it was not liable because of a
stipulation in the charter party that the charterer and not the shipowner was to be liable for any loss or damage
to the cargo. The CFI absolved Luzon Stevedoring but ordered American Steamship to reimburse the P14,000
to Home Insurance, declaring that Art. 587 of the Code of Commerce makes the ship agent civilly liable for
damages in favor of third persons due to the conduct of carrier's captain and that the stipulation in the charter
party exempting owner from liability is against public policy under Art. 1744 of NCC.
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Cendana was a junk dealer and was engaged in buying used bottles and scrap materials in Pangasinan
and brought these to Manila for resale. He used two 6-wheeler trucks. On the return trip to Pangasinan, he
would load his vehicles with cargo which various merchants wanted delivered to Pangasinan. For that service,
he charged freight lower than regular rates. General Milk Co. contracted with him for the hauling of 750
cartons of mild. On the way to Pangasinan, one of the trucks was hijacked by armed men who took with them
the truck and its cargo and kidnapped the driver and his helper. Only 150 cartons of milk were delivered. The
Milk Co. sued to claim the value of the lost merchandise based on an alleged contract of carriage. Cendana
denied that he was a common carrier and contended that he could not be liable for the loss since it was due to
force majeure. The TC ruled that he was a common carrier. The CA reversed.
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Planters purchased urea fertilizer from Mitsubishi, New York. The fertilizer was shipped on MV Sun
Plum, which is owned by KKKK, from Alaska to San Fernando, La Union. A time charter party was entered
into between Mitsubishi as shipper/charterer and KKKK as shipowner. Upon arrival in the port, PPI unloaded
the cargo. It took PPI 11 days to unload the cargo. PPI hired a marine and cargo surveyor to determine if there
was any shortage. A shortage and contamination of the fertilizer was discovered. PPI sent a claim letter to
SSA, the resident agent of KKKK for the amount of the loss. An action for damages was filed. SSA contended
that the provisions on CC do not apply to them because they have become private carriers by reason of the
charter-party. The TC awarded damages. The CA reversed.
Issue : Does a charter party between a shipowner and a charterer transform a CC into a private one as
to negate the civil law presumption of negligence in case of loss or damage to its cargo? NO.
Held : A charter-party is a contract by which an entire ship, or some principal part thereof, is let by the
owner to another person for a specified time or use. There are 2 kinds: (1) contract of affreightment
which involves the use of shipping space or vessels leased by the owner in part or as a whole, to carry
goods for others; and (2) charter by demise or bareboat charter where the whole vessel is let to the
charterer with a transfer to him of its entire command and possession and consequent control over its
navigation, including the master and the crew, who are his servants.
It is not disputed that the carrier operates as a CC in the ordinary course of business. When
PPI chartered the vessel, the ship captain, its officers and crew were under the employ of the shipowner
and therefore continued to be under its direct supervision and control. Thus it continued to be a public
carrier.
It is therefore imperative that a public carrier shall remain as such, notwithstanding the charter
of the whole or portion of a vessel, provided the charter is limited to the ship only, as in the case of a
time-charter or a voyage-charter. It is only when the charter includes both the vessel and the crew, as in
a bareboat or demise that a CC becomes private, insofar as such particular voyage is concerned.
Issue : WON the carrier is liable for damages. NO.
Held : The presumption of negligence on the part of respondent carrier has been overcome by the
showing of extraordinary zeal and assiduity exercised by the carrier in the care of the cargo. On the
other hand, no proof was adduced by the petitioner showing that the carrier was remiss in the exercise
of due diligence in order to minimize the loss or damage to the goods it carried.
Coastwise Lighterage Corp. vs. CA, GR No. 114167, July 12, 1995
F:
Pag-asa Sales, Inc. entered into a contract to transport molasses from Negros to Mla. w/ Coastwise,
using the latter's dumb barges. The barges were towed in tandem by the tugboat MT Marcia, w/c is likewise
owned by Coastwise.
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RULINGS: (1) Bareboat charter and contract of affreightment, difference; Coastwise, by the
contract of affreightment, was not converted into a private carrier, but remained a common carrier.-Under the demise or bareboat charter of the vessel, the charterer will generally be regarded as the
owner of the voyage or service stipulated. The charterer mans the vessel w/ his own people and
becomes the owner pro hac vice, subject to liability to others for damages caused by negligence. 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 (time or voyage charter party) or not a charter party at all.
A contract of affreightment is one in w/c the owner of the vessel leases part or all of its space to
haul goods for others. It is a contract for special service to be rendered by the owner of the vessel and
under such contract the general owner retains the possession, command and navigation of the ships, the
charterer or freighter merely having use of the space in the vessel in return for his payment of the
charter hire. xxx
xxx
Although a charter party may transform a common carrier into a private one, the same,
however, is not true in a contract of affreightment on account of the aforementioned distinctions bet. the
two.
Petitioner admits that the contract it entered into w/ the consignee was one of afreightment. We
agree. Pag-asa only leased 3 of petitioner's vessels, in order to carry cargo from one point to another,
but the possession, command and navigation of the vessels remained w/ petitioner.
(2) Petitioner is liable for breach of contract of carriage, having failed to overcome the
presumption of negligence w/ the loss and destruction of goods it transported, by proof of its exercise
of extraordinary diligence.-- Mere proof of delivery of goods to a carrier and the subsequent arrival of
the same goods at the place of destination in bad order makes for a prima facie case against the carrier.
Jesus Constantino, the patron of the vessel "Coastwise 9" admitted that he was not licensed. This
violates the rule in the Code of Commerce (Art. 609) w/c requires that patrons must "have the legal
capacity to contract in accordance w/ this code, and prove the skill, capacity and qualifications
necessary to command and direct the vessel xxx and must be qualified xxx for the discharge of the
duties of the position. xxx" Coastwise cannot safely claim to have extraordinary diligence, by placing
a person whose navigational skills are questionable, at the helm of the vessel w/c eventually met the
fateful accident. xxx Had the patron been licensed, he could be presumed to have both the skill and the
knowledge that would have prevented the vessel's hitting the sunken derelict ship that lay on their way to
Pier 8. RAM.
2. Nature of business; power of State to regulate
Art. 1765. The [Public Service Commission] Board of Transportation may, on its own
motion or on petition of any interested party, after due hearing, cancel the certificate of public
convenience granted to any common carrier that repeatedly fails to comply with his or its duty to
observe extraordinary diligence as prescribed in this Section.
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4 Agbayani:
Common carriers are subject to legislative regulation.-- The business of a common carrier holds such
a peculiar relation to the public interest that there is superinduced upon it the right of public regulation.
The business of a common carrier is affected with public interest. When, therefore, one devotes his
property to a use in which the public has an interest, he, in effect, grants to the public an interest in that
use, and must submit to be controlled by the public for the common good, to the extent of the interest he
had thus created.
Limitation on power to regulate.-- Such regulations must not have the effect of depriving an owner of
his property without due process of law, nor of confiscating, or appropriating private property without
just compensation, nor of limiting or prescribing irrevocably vested rights or privileges lawfully
acquired under a charter or franchise [just compensation, due process of law]
When judiciary may interfere with legislative regulation of common carriers.-- The judiciary ought
not to interfere with legislative regulations unless they are so plainly and palpably unreasonable as to
make their enforcement equivalent to the taking of property for public use without such compensation as
under all circumstances is just both to the owner and to the public.
Pantranco vs PSC, 70 Phil 221
F:
Pantranco has been engaged for the past 20 years in the business of transporting passengers by means
of motor vehicles in accordance with the CPCN issued to it. It filed with the PSC an application for
authorization to operate 10 addtl. new trucks. The application was granted with two conditions : (1) that the
CPCN would be valid for only 25 years and (2) that the service can be acquired by the govt. upon payment of
cost price of its useful eqpt. less reasonable depreciation. Pantranco challenged the constitutionality of Art. 15,
CA 146 as an undue delegation of legislative powers.
Issue : WON the PSC may prescribe the 2 conditions as a prerequisite to the issuance of the CPCN.
Held : Yes. CA 146 provides a sufficient standard, which is public interest, by which the PSC is guided
in imposing such conditions.
The business of a common carrier holds such a peculiar relation to the public interest that there
is superinduced upon it the right of public regulation. When private property is affected with a public
interest, it ceases to be juris privati only. When, therefore, one devotes his property to a use in which the
public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be
controlled by the public for the common good, to the extent of the interest he had thus created. He may
withdraw his grant by discontinuing the use, but so long as he maintains the use, he must submit to
control. Indeed this right is so far beyond question that it is settled that the power of the state to exercise
legislative control over public utilities may be exercised through the board of commissioners. This right
of the state to regulate public utilities is founded upon the police power, and statutes for the control and
regulation of utilities are a legitimate exercise thereof, for the protection of the public as well as the
utilities themselves. Such statutes are not unconstitutional, either as impairing the obligation of
contracts, taking property without due process, or denying the equal protection of the laws, especially
inasmuch as the question WON private property shall be devoted to a public use and the consequent
burdens assumed is ordinarily for the owner to decide; and if he voluntarily places his property in public
service he cannot complain that it becomes subject to the regulatory powers of the state. This is more so
in the light of authorities which hold that a CPC constitutes neither a franchise nor a contract, confers
no property rights and is a mere license or privilege.
3. Nature and Basis of Liability
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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 the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in Articles
1734, 1735, and 1745, Nos. 5,6, and 7, while the extraordinary diligence for the safety of the
passengers is further set forth in Articles 1755 and 1756.
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;
(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 packaging or in the containers;
(5) Order or act of competent public authority.
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 Art. 1733.
Art. 1745. Any of the ff. or similar stipulations shall be considered unreasonable,
unjust and contrary to public policy:
xxx
(5) That the common carrier shall not be responsible for the acts or omissions of
his or its employees;
(6) That the common carrier's liability for acts committed by thieves, or of
robbers who do not act with grave or irresistible threat, violence or force, is dispensed
with or diminished;
(7) That the common carrier is not responsible for the loss, destruction, or
deterioration of goods on account of the defective condition of the car, vehicle, ship,
airplane or other equipment used in the contract of carriage.
Art. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all circumstances.
Art. 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove that they
observed extraordinary diligence as prescribed in articles 1733 and 1755.
4 Agbayani:
Extraordinary diligence required of common carriers.-- The law requires CC to exercise extraordinary diligence which means that they must render service with the greatest skill and utmost
foresight. The extra-ordinary diligence required of carriers in the handling of the goods of the shippers
and consignees last from the time the cargoes are loaded in the vessels until they are discharged and
delivered to the consignees.
Reasons for requiring extra-ordinary diligence.-- The nature of the business of common carriers and
the exigencies of public policy demand that they observe extra-ordinary diligence; the business of CC is
impressed with a special public duty and therefore subject to control and regulation by the state. The
public must of necessity rely on the care and skill of CC in the vigilance over the goods and safety of the
passengers
PAGE 28
Jose Cangco, an employee of MRR, was riding on its train. As it drew up to the station, the plaintiff
made his exit. As he alighted, his foot stepped on a sack of watermelons causing him to slip and his right arm
was crushed. This happened between 7 and 8 p.m. and as the railroad station was lighted dimly by a single
light, objects on the platform were difficult to see.
Issue : WON MRR is liable to pay damages for the acts of its EEs.
Held : YES.
It cannot be doubted that the EEs of the railroad co. were guilty of negligence in piling sacks on
the platform; their presence constituted an effective legal cause of the injuries sustained by Cangco.
It is impt. to note that the foundation of the legal liability of the defendant is the contract of
carriage, and that the obligation to respond for the damage which plaintiff has suffered arises, if at all,
from the breach of that contract by reason of the failure of defendant to exercise due care in its
performance. Its liability is direct and immediate (culpa contractual), differing essentially, from that
presumptive responsibility for the negligence of its servants, which can be rebutted by proof of the
exercise of due care in the selection and supervision of EEs (culpa aquiliana).
The liability of masters and employers for the negligent acts or omissions of their servants or
agents, when such act or omissions cause damage which amount to the breach of a contract, is not
based upon a mere presumption of the master's negligence in their selection or control, and proof of
exercise of the utmost diligence and care in this regard does not relieve the master of his liability for the
breach of his contract. When the facts averred show a contractual undertaking by defendant for the
benefit of plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is
PAGE 29
A passenger jeepney driven by Brigido Avorque smashed into a Meralco post resulting in the death of
Vicenta Medina, one of its passengers. In a criminal case of homicide through reckless imprudence, Avorque
pleaded guilty. The right to file a separate action for damages was reserved. Cresencia was still the registered
operator of the jeepney in the records of the Motor Vehicles Office and the PSC, while Rosario Avorque was the
owner at the time of the accident.
Issue: WON Cresencia is liable for breach of the contract of carriage. YES.
Ratio: The law requires the approval of the PSC, in order that a franchise, or any privilege pertaining
thereto, may be sold or leased without infringing the certificate issued to the grantee; and that if
property covered by the franchise is transferred or leased without this requisite approval, the transfer is
not binding against the public or the PSC; and in contemplation of law, the grantee of record continues
to be responsible under the franchise in relation to the PSC and to the public. Since a franchise is
personal in nature, any transfer or lease thereof should be notified to the PSC so that the latter may take
proper safeguards to protect the interest of the public.
Plaintiff's action is based on the breach of the carrier's contractual obligation to carry his
passengers safely to their destination (culpa contractual). The liability of the carrier is direct and
immediate.
Isaac vs A.L. Ammen Trans. Co., 101 Phil 1046
F:
Plaintiff boarded defendant's bus as a paying passenger from Albay. The bus collided with a pick-up
truck which was coming from the opposite direction trying to swerve from a pile of gravel. As a result, his left
arm was completely severed. Plaintiff chose to hold defendant liable on its contractual obligation. Plaintiff
brought this action for damages which the lower court dismissed holding the driver of the pick-up negligent
and not that of the bus.
Issue : WON defendant observed extra-ordinary diligence or the utmost diligence of a very cautious
person in avoiding the collision. YES.
Held : The facts of the case show that the bus and the pick-up were approaching each other head-on.
The bus swerved to the right and went over a pile of stones and gravel. Despite the efforts of the bus
driver, the pick up car still hit the rear left side of the bus. The sense of caution one should observe
cannot always be expected from one who is placed suddenly in a predicament where he is not given
enough time to take the proper course of action under ordinary circumstances. Furthermore, plaintiff is
guilty of contributory negligence since he placed his left elbow outside the window.
Ratio: A CC is bound to carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with due regard for all circumstances. This extraordinary diligence required of common carriers is calculated to protect the passengers from the tragic
mishaps that frequently occur in connection with rapid modern transportation. This high standard of
PAGE 30
Respondent, a professor of Fine Arts, was a passenger of a jeep registered in the name of Fores but
actually operated by Carmen Sackerman. While the jeep was descending at Sta. Mesa bridge at excessive
speed, the driver lost control of it causing it to swerve and hit the bridge wall resulting to injuries to its
passengers including respondent who suffered a fracture of the upper right humerus. In an action for damages,
the CFI awarded actual damages. The CA reduced the actual damages and added moral damages and attorney's
fees.
Issue : WON the approval of the PSC is necessary for the sale of a public service vehicle even without
conveying therewith the authority to operate the same. YES.
Held : A transfer made without the requisite approval of the PSC is not effective and binding in so far as
the responsibility of the grantee under the franchise in relation to the public is concerned. The law was
designed primarily for the protection of the public interest.
Issue : WON moral damages may be awarded.
Held : In case of breach of contract (including one of transportation), proof of bad faith or fraud, i.e.,
wanton or deliberately injurious conduct, is essential to justify an award of moral damages. The
exception to this is when a mishap results in the death of a passenger, in which a CC is liable to pay
moral damages for the mental anguish by reason of the death of the passenger. So where the injured
passenger does not die, moral damages are not recoverable unless it is proved that the carrier was guilty
of malice or bad faith.
Under the law, the presumption is that common carriers acted negligently but not maliciously.
The distinction between fraud, bad faith or malice in the sense of deliberate or wanton wrong doing and
negligence (as mere carelessness) is too fundamental in our law to be ignored. A carrier's bad faith is
not to be lightly inferred from a mere finding that the contract was breached through negligence of the
carrier's employees.
Phil. Rabbit Bus Lines vs IAC, 189 SCRA 159
F:
Several passengers boarded the jeepney owned by spouses Mangune and driven by Manalo at Dau,
Pampanga bound for Carmen, Rosales, Pangasinan. Their contract with Manalo was P24 for the trip. Upon
reaching Tarlac, the right wheel of the jeepney was detached, so it was running in an unbalanced position.
Manalo stepped on the brake, making a sudden U-turn and encroaching on the right of way of the other
vehicles. The Phil. Rabbit bus bumped from behind the jeepney. As a result of the collision, 3 persons died
while the others sustained injuries. Cases were filed against the spouses Mangune, Manalo, Phil. Rabbit and De
los Reyes (driver).
Issue: Who should be held liable? the Mangunes and Filriters Guaranty Assurance Corp. (Insurance co.)
PAGE 31
Ratio: The principle of last clear chance would call for application in a suit between the owners and
drivers of two colliding vehicles. It does not arise where a passenger demands responsibility from the
carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent
driver of the jeepney and its owners on the ground that the other driver was likewise guilty of
negligence.
On the presumption that the drivers who bump the rear of another vehicle are guilty and the
cause of the accident, unless contradicted by other evidence, the SC held that the jeep made a sudden Uturn which was so abrupt that the other driver de los Reyes did not anticipate the sudden U-turn.
The proximate cause of the accident was the negligence of Manalo and the spouses Mangune.
In culpa contractual, the carrier is presumed to have been at fault or to have acted negligently, and this
disputable presumption may only be overcome by evidence that he had observed extra-ordinary
diligence or that the death or injury of the passenger was due to a fortuitous event.
The driver cannot be held jointly liable with the owners of the jeep in case of breach of the
contract of carriage. The contract of carriage is between the carrier and the passenger, and in the event
of contractual liability, the carrier is exclusively responsible therefore to the passenger, even if such
breach be due to the negligence of the driver. To make the driver jointly liable would make the carrier's
liability personal instead of merely vicarious and consequently, the victim is entitled to recover only the
share which corresponds to the driver.
4. Classes of common carriers
Art. 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.
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 the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in Articles
1734, 1735, and 1745, Nos. 5,6, and 7, while the extraordinary diligence for the safety of the
passengers is further set forth in Articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with a due regard
for all circumstances.
5. Laws applicable
Art. 1766. In all matters not regulated by this Code, the rights and obligations of common
carriers shall be governed by the Code of Commerce and by special laws.
4 Agbayani:
New Civil Code primarily governs common carriers.-- The Provisions of the Civil Code [17321766] primarily govern common carriers and the provisions of the Code of Commerce [Overland
Transportation and Maritime Commerce] and special laws [Carriage of Goods by Sea Act; Salvage Act]
have only subsidiary application to common carriers.
PAGE 32
These two cases, both for the recovery of value of cargo insurance, arose from the same incident, the
sinking of the M/S ASIATICA when it caught fire, resulting in the total loss of ship and cargo.
In the first case, the M/S ASIATICA, a vessel operated by petitioner Eastern Shipping Lines, loaded at
Kobe, Japan for transportation to Manila 5,000 pieces of colorized lance pipes in 28 packages valued at
P256,039 consigned to Phil. Blooming Mills and 7 cases of spare parts valued at P92,361.75 consigned to
Central Textile Mills. Both sets of goods were insured against marine risk for their stated value with
respondent Devt. Insurance and Surety Corporation.
In the second case, the same vessel took on board 128 cartons of garment fabrics and accessories, in 2
containers, consigned to Mariveles Apparel Corporation, and 2 cases of surveying instruments consigned to
Aman Enterprises and General Merchandise. The 128 cartons were insured by respondent Nisshin Fire and
Marine Insurance Co. and Dowa Fire & Marine Insurance Co.
En route for Manila, the ship caught fire and sank. The insurers paid the corresponding marine
insurance values and were subrogated to the rights of the latter as the insured. They filed suits against the
petitioner Carrier and won (affirmed by the CA). Petitioner carrier denies liability on the ff. grounds:
(a) that the loss was due to an extraordinary fortuitous even which is an exempting circumstance under
Sec. 4(2)(b) of the Carriage of Goods by Sea Act (COGSA);
(b) that when fire is established, the burden of proving negligence is shifted to the cargo shipper.
Issues: (1)Which law should govern : the Civil Code or the Carriage of Goods by Sea Act.
(2)Who has the burden of proof to show negligence of the carrier.
Ratio : (1) The law of the country to which the goods are to be transported governs the liability of the
common carrier in case of their loss, destruction or deterioration. As the cargoes in question were
transported from Japan to the Philippines, the liability of Petitioner Carrier is governed primarily by the
Civil Code. However, in all matters not regulated by said Code, the rights and obligations of common
carriers shall be governed by the Code of Commerce and special laws. Thus, the COGSA, a special
law, is suppletory to the provisions of the Civil Code.
(2) Under the Civil Code, common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extra-ordinary diligence in the vigilance over goods, accdg. to all the
circumstances of each case. Common carriers are responsible for the loss, destruction, or deterioration
of the goods unless the same is due to any of the ff. causes only (Art. 1734, NCC):
"(1) Flood, storm, earthquake, lightning or other natural disaster or calamity; xxx"
The Carrier claims that the loss of the vessel by fire exempts it from liability under the phrase
"natural disaster or calamity." However, we are of the opinion that fire may not be considered a natural
disaster or calamity. This must be so as it arises almost invariably from some act of man or by human
means. 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.
As the peril of fire is not comprehended within the exceptions in Article 1734, then Article 1735
provides that in all cases other than those mentioned in Art. 1734, the CC shall be presumed to have
PAGE 33
PAGE 34
PAGE 35
The Govt. of the Philippines, acting through the Insular Purchasing Agent, employed the services of
petitioner, Ynchausti Steamship Co., a common carrier for the transportation, on board the steamship Venus,
from the port of Manila to the port of Appari, Cagayan, of consignments of merchandise, consisting of 30 cases
of Wine Rose mineral oil of two 5-gallon cans to the case. On another occasion, the Govt. also sent 96 cases of
Cock brand mineral oil, ten gallons to the case. The goods were delivered by the shipper to the carrier which
accordingly received them, and to evidence the contract of transportation, the parties duly executed and
delivered what is popularly called Govt. bill of lading, whereby it was stipulated that the carrier, Ynchausti,
received the above-mentioned supplies in apparent good condition, obliging itself to carry said supplies to the
place agreed upon.
Both shipments arrived with one case missing per shipment. Ynchausti denied negligence. However,
upon investigation, the Insular Auditor decided that the leakages were due to Ynchausti's negligence. The
Insular Auditor deducted the amount of the lost goods from the entire amount payable to Ynchausti. Petitioner
refused to accept the warrant. Hence, this action was filed.
Mirasol was the owner of two cases of Encyclopedia Brittanica shipped in good order and condition on
board Dollar's steamship, President Garfield, to be transported from New York to Manila. The books arrived in
bad order and damaged condition, resulting in total loss of one case and partial loss of the other. Mirasol filed
claims, but Dollar refused to pay alleging that the damage was caused by sea water and that Mirasol entered
into a contract providing that Dollar will not be held liable for loss or damage of merchandise resulting from
"acts of God" or "perils of the sea," and that in no case shall it be held liable beyond $250 for any article not
enclosed in a package unless a higher value is stated therein and ad valorem freight paid or assessed thereon.
The LC ruled in favor of Mirasol for payment of P 2,080.
PAGE 37
4 Agbayani:
Effect of New Civil Code.-- Transportation of the merchandise "at the risk and venture of the shipper"
means that the shipper will suffer losses and deterioration arising from fortuitous event, force majeure,
or inherent nature and defects of the goods. It does not mean that the carrier is free from liability for
losses and deterioration arising from his negligence or fault, w/c is presumed. Thus construed, par. 1 of
Art. 361 is not inconsistent with Art. 1735 of the NCC.
Requisites for defense of natural disaster:
1. Art. 1739 -- natural disaster must have been the proximate and only cause of the loss
2. The CC must exercise due diligence to prevent or minimize the loss before, during and after
the occurrence of flood, storm, or other natural disaster. If the CC does not exercise due diligence in
minimizing the loss, he may yet be held liable notwithstanding the fact that the loss, destruction or
deterioration of the goods arose out of natural disaster.
3. Art. 1740 -- the CC must not be in delay. If the CC incurs in delay, a natural disaster shall
not free it from responsibility. Under Art. 1165 par. 3, if the obligor incurs delay, he shall be responsible
for any fortuitous event until he has effected delivery.
However, if between the delay or refusal of the CC to transport the goods and the loss of the
goods due to an act of God there intervened the shipper's negligence, thus causing a break in the chain
of causation between the act of God which caused their loss and the CC's fault, the act of God is the
proximate cause of the loss and the carrier's delay or refusal to transport the goods, is merely the remote
cause. In such cases, the shipper is not even entitled to set up the claim of contributory negligence. It is
then necessary that it be established that the CC was guilty of a willful or negligent act and that between
this willful or negligent act and the act of God, no negligence on the part of the shipper intervened.
PAGE 38
Accident due to defects of carrier not caso fortuito.-- Accidents caused either by defects in the
carrier or through the negligence of the carrier is not caso fortuito. The passenger or shipper has every
right to presume that the carrier is perfectly in good condition and could transport him safely and
securely to his destination
Tan Chiong San vs Ynchausti & Co., 22 Phil 152
F:
Ynchausti and Co. received from Ong Bien Sip in Manila 205 bundles of goods to be conveyed by
YC's steamer to Gubat in Sorsogon, and there to be transhipped to another vessel belonging to YC and
transported to Catarman, in Samar. As the lorcha Pilar, which was to transport the goods to Catarman was not
yet in Gubat when the cargo arrived, the cargo was stored in YC's warehouse.
Several days later, the lorcha arrived and the goods were loaded. However, as the lorcha was being
towed, a storm arose, drove the lorcha to the shore and wrecked it, scattering the goods on the beach. YC's
laborers proceeded to gather up the goods. As it was impossible to preserve the goods, they were sold at a
public auction. Plaintiff filed an action for damages for P 20,000. LC decided that plaintiff was entitled only
to P 14,642.63.
Issues: (1) WON the carrier is relieved from liability due to force majeure. YES.
(2) WON the carrier is liable for the loss of the cargo and for failure to deliver the same at the
place of destination. NO.
Ratio: (1) It is a proven fact that the loss or damage to the goods shipped on the said lorcha was due to
the force majeure which caused the wreck of the said craft. Accdg. to Art. 361 of the Code of
Commerce, merchandise shall be transported at the risk and venture of the shipper, unless the contrary
be expressly stipulated. No such stipulation appears of record, therefore, all damages and impairment
suffered by the goods in transportation, by reason of accident, force majeure, or by virtue of the nature
or defect of the articles, are for the account and risk of the shipper. The carrier is exempt from liability
if he is able to prove, as he did prove, that the loss or destruction of the merchandise was due to accident
and force majeure and not to fraud, fault or negligence on the part of the captain or owner of the ship -that the loss was a result of the stranding of Pilar because of the hurricane that overtook it.
(2) The record bears no proof that said loss caused by the destruction of Pilar occurred through
the carelessness or negligence of the defendant, its agents or patron of the lorcha. The defendant as well
as its agents and patron had a natural interest in preserving the craft -- an interest equal to that of the
plaintiff. The record discloses that Pilar was manned by an experienced patron and a sufficient number
of crewmen plus the fact that it was fully equipped. The crewmen took all the precautions that any
diligent man should have taken whose duty it was to save the boat and its cargo, and by the instinct of
self- preservation of their lives. Considering, therefore, the conduct of the men of the defendant Pilar
and of its agents during the disaster, the defendant has not incurred any liability whatsoever for the loss
of the goods, inasmuch as such loss was the result of a fortuitous event or force majeure, and there was
no negligence or lack of care or diligence on the part of the defendant or its agents.
Loss of a ship and of its cargo, in a wreck due to accident or force majeure must, as a general
rule, fall upon their respective owners, except in cases where the wrecking or stranding of the vessel
occurred through malice, carelessness or lack of skill on the part of the captain or because the vessel put
to sea is insufficiently repaired and prepared. (Art. 841, Code of Commerce)
Martini Ltd. vs Macondray & Co., 39 Phil 934
F:
Martini shipped on board the Easter, owned by the Australian Steamship Co. represented in the
Philippines by Macondray, 219 cases of chemicals for Kobe, Japan. Upon arrival in Kobe, it was discovered
that the shipment was damaged by rain and sea water. Martini claims that it was the ship's duty to stow the
cargo in the hold and not to place it on the deck exposed to the elements. Macondray denied any responsibility
PAGE 39
Issues: (1) WON plaintiff consented to having the cargo carried on deck. YES.
(2) WON defendant was negligent and thus liable for the damage to the cargo. NO.
Ratio: While Martini would have greatly preferred for the cargo to be carried under the hatches, they
nevertheless consented for it to go on deck. Codina, an EE of Martini, if attentive to the interests of his
company, must have known from the tenor of the guaranty which he signed that defendant had reserved
the right to carry the cargo on deck. The bill of lading plainly showed that the cargo would be so
carried. The plaintiff was duly notified as to the manner by which was the cargo was to be shipped.
They only protested after the bill had been negotiated at the bank and even when there was time to stop
the shipment, they failed to give the necessary instructions thereby manifesting acquiescence.
In every contract of affreightment, losses by dangers of the seas are excepted from the risk
which the carrier takes upon himself whether the exception is expressed in contract or not. The
exception is made by law and falls within the general principle that no one is responsible for fortuitous
events. But then this general law is subject to the exception that when the inevitable accident is
preceded by fault of the carrier, without which it would not have happened, then he becomes responsible
for it.
The carrier is responsible for safe and proper storage of the cargo, and there is no doubt that by
the general maritime law he is bound to secure the cargo safely under deck. If he carries the goods on
deck without the consent of the shipper and the goods are damaged or lost in consequence of being
exposed, the carrier cannot protect himself by showing that they were damaged or lost by the dangers of
the sea. When the shipper consents to his goods being carried on deck, he takes the risk upon himself.
If goods shipped are found to have been damaged, the burden of proof is on the carrier to show
that the damage was due to fortuitous events. But, even if the damage is caused by one of the excepted
causes, the carrier is still responsible if the injury might have been avoided by the exercise of reasonable
skill and attention on their part. However, in this case, where the shipper consented to the conditions of
carriage, the burden of proof is shifted to the shipper.
As there is no allegation or proof of negligence on the part of the carrier in protecting the cargo
from rain or sea water and as the complaint clearly indicates that the damage was due to it being kept on
deck, and such manner of carriage having been consented to by the plaintiff, the defendant is absolved.
It is not permissible for the court, in the absence of any allegation or proof of negligence, to attribute
negligence to the ship's employees in the matter of protecting the goods from rains and storms.
Eastern Shipping Lines vs IAC, 150 SCRA 463
Issue: Should petitioner be exempted from liability under Art. 1734 on the ground that the loss of the
vessel by fire comes under the phrase "natural disaster or calamity?" NO.
Ratio: Fire may not be considered a natural disaster or calamity. This must be so as it arises almost
invariably from some act of man or by human means. It does not fall within the category of an act of
God unless caused by lightning or by another natural disaster or calamity. It may even be caused by the
actual fault or privity of the carrier. Art. 1680 which considers fire as an extra-ordinary fortuitous event
PAGE 40
Article 1749, NCC also allows the limitations of liability in that it provides that "a stipulation
that the CC'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."
It is to be noted that the Civil Code does not of itself limit the liability of the CC to a fixed
amount per package, although the Code expressly permits a stipulation limiting such liability. Thus, the
COGSA, which is suppletory to the Civil Code, steps in and supplements the Code by establishing a
statutory provision limiting the carrier's liability in the absence of a declaration of a higher value of the
goods by the shipper in the bill of lading. The provisions of the COGSA on limited liability are as much
a part of a bill of lading as though physically in it and as much a part thereof as though placed therein
by agreement of the parties.
In these cases, there is no stipulation in the respective bills of lading limiting the carrier's
liability for the loss or destruction of the goods. Nor is there a declaration of a higher value of the
goods. Hence, petitioner carrier's liability should not exceed $500 per package, or its peso equivalent,
at the time of the payment of the value of the goods lost, but in no case "more than the amount of
damage actually sustained."
The liability was computed as: 128 cartons (shipping unit) x $500 = $64,000. The cartons and
not the containers should be considered as the shipping unit.
Dissenting : Yap, J.
There is no evidence that the containers were carrier- supplied. The shipper must have saved on
freight charges by using containers for shipment. The containers should be considered as the shipping
unit.
(b) Act of public enemy
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:
xxx
PAGE 41
PAGE 42
Plaintiff shipped a cargo of roofing tiles from Manila to Iloilo on a vessel owned by Ynchausti.
Defendant stamped on the bill of lading the condition that the goods have been accepted for transportation
subject to the conditions prescribed by the Insular Collector of Customs. The tiles were delivered by defendant
to the consignee of the plaintiff at Iloilo. Upon delivery, it was found that some of the tiles had been damaged.
The LC absolved the defendant from any liability since the defendant was able to prove that the tiles were
leaded, stored and discharged by hand labor and not by any mechanical device. Defendant proved, without
dispute from the plaintiff, that there was no negligence on its part, the tiles being discharged by handlabor and
not by mechanical device.
Issue : WON the terms and conditions of the bill of lading were binding upon the plaintiff. YES.
Ratio: The defendant placed said stamp upon the bill of lading before the plaintiff shipped the tiles, and
that having shipped the tiles under said bill, with the terms and conditions of carriage stamped thereon,
the govt. must be deemed to have assented to said terms and conditions. The binding effect of the
conditions stamped on the bill of lading did not proceed from the Collector of Customs, but from the
actual contract which the parties made. Each bill of lading is a contract and the parties thereto are
bound by its terms.
The defendant, to free itself from liability, was only obliged to prove that the damages suffered
by the tile were by virtue of the nature or defect of the articles. The plaintiff, to hold the defendant
liable, was obliged to prove that the damage to the tiles, by virtue of their nature, occurred on account
of the defendant's negligence or because the latter did not take precaution usually adopted by careful
persons.
The defendant proved,and the plaintiff did not attempt to dispute that the tiles were of a brittle
and fragile nature and that they were delivered to the defendant without any packing or protective
covering. The plaintiff, not having proved negligence on the part of the defendant, is not entitled to
recover damages.
Southern Lines vs CA, 4 SCRA 256
F:
The city of Iloilo requisitioned for rice from NARIC in Manila. NARIC shipped from Manila to Iloilo
1726 sacks of rice on board the SS Gen. Wright belonging to Southern Lines. After the city paid for the rice, it
was noted that 41 sacks were missing. The city filed a complaint against NARIC and Southern Lines to recover
the amount. The LC absolved NARIC but ordered Southern Lines to pay. The CA affirmed.
PAGE 43
Gelacio Tumambing contracted the services of Ganzon to haul 305 tons of scrap iron from Mariveles,
Bataan to the port of Manila on board the lighter LCT Batman. When half of the scrap iron was already loaded,
the mayor of Mariveles arrived and demanded P 5,000 from Tumambing. An argument resulted in the shooting
of Tumambing. The loading of the scrap iron was resumed but the acting mayor arrived and ordered Captain
Niza to dump the scrap iron. The acting mayor took the rest to the compound of NASSCO and took custody of
the scrap iron. Tumambing filed an action for damages against Ganzon based on culpa contractual. The TC
and CA held Ganzon liable.
Held: Ganzon contended that the scrap iron had not been unconditionally placed under his custody and
control to make him liable. However, he admitted that he received the scraps of iron which Tumambing
delivered to him. By the 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. The carrier's extraordinary responsibility for the loss, destruction, or
deterioration of the goods commenced.
PAGE 44
PAGE 45
Macleod and Co. contracted the services of Cia Maritima for the shipment of bales of hemp from
Davao to Manila. The bales were loaded into CC's lighters. One of the lighters sunk. The insurance co. paid
Macleod and filed to collect from CC. CC denied liability on the grounds that the hemp was loaded on a barge
owned by the CC free of charge, that there was no bill of lading issued thereby resulting to the nonexistence of
a contract of carriage, that the sinking was due to a fortuitous event, and that the insurance co. has no
personality to sue.
Held: There was a complete contract of carriage the consummation of which has already begun when
the shipper delivered the cargo to the carrier and the latter took possession of the same by placing it on a
lighter manned by its EEs, under which Macleod became entitled to the privilege secured to him by law
for its safe transportation and delivery, and the carrier to the full payment of its freight upon completion
of the voyage. The barges or lighters were merely employed as the first step of the voyage, which is
part of the contract.
PAGE 46
Delta Co. of NY shipped six cases of films and photographic supplies consigned to Binamira. The
shipped arrived in Cebu and discharged her cargo, placing it in the possession and custody of the arrastre
operator appointed by the Bureau of Customs. The cargo was checked both by the stevedoring co. as well as by
the arrastre operator and was found in good order. In the contract of carriage, however, it was stipulated that
the carrier is no longer liable for the cargo upon its delivery to the hands of the custom authorities. The cargo
was delivered to Binamira and some goods were missing.
Held: The general rule is that CC's responsibility to observe extra-ordinary diligence lasts from the time
the goods are placed in the possession of the carrier until they are delivered to the consignee. BUT this
rule applies only when the loss, destruction and deterioration of the goods 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 extra-ordinary diligence in protecting them from damage and if
loss occurs, the law presumes that it was due to its fault or negligence.
While delivery to the customs authorities is not delivery to the consignee, the parties may
however, agree to limit the liability of the carrier considering that the goods have still to go through the
inspection of the customs authorities before they are actually turned over to the consignee. This
stipulation is not contrary to morals or public policy. This is a situation where the CC loses control of
the goods because of custom regulations and it is unfair that it be made responsible for any loss or
damage during such interregnum.
APL vs Klepper, 110 Phil 243
F:
Klepper shipped one lift van containing personal and household effects from Yokohama to Manila.
While the lift van was being unloaded by crane, it fell on the pier damaging its contents. The TC found for
Klepper.
Held: APL does not question the finding that the damage was due its negligence but contends that its
liability cannot exceed $500 based on the bill of lading and Sec 4(5) of the COGSA. Regardless of its
negligence, the carrier's liability would attach because being a CC, its responsibility is extra-ordinary
and lasts from the time the goods are placed in its possession until they are delivered, actually or
constructively, to the consignee or to the person who has a right to receive them.
The carrier should only pay $ 500; the shipper who accepted the bill of lading is bound by its
terms. COGSA is merely suppletory to the provisions of the NCC which govern the contract.
4. Agreement Limiting Liability
PAGE 47
Plaintiff sought to recover from defendant the alleged value of 4 cases of merchandise which it
delivered to a vessel of defendant at the port of Manila to be shipped to Surigao, but which were never delivered
to consignee. Defendant relied on clause 7 of the bill of lading where it provided that actions not brought
within 60 days from the time the cause of action accrued shall be barred, and on clause 12 which provided that
the defendant is not liable for any package in excess of P 300 unless the value and contents of such package are
correctly stated in the bill of lading at the time of the shipment. Plaintiffs complaint was filed a little less than
6 months after the shipment was made.
PAGE 48
Plaintiff shipped Edmonton clocks from NY to Manila on board defendant's vessel. It was agreed in
the bill of lading that the value of the goods receipted do not exceed $500 per freight on or in proportion for any
part of a ton, unless the value be expressly stated in the bill and freight paid. It was also agreed that in the
event of claims for shortage or damage the carrier shall not be liable for more than the net invoice price plus
freight and insurance less charges, and any loss or damage for which the carrier may be liable shall be adjusted
pro rata on said basis. The clocks were not delivered despite demands. Plaintiff claimed P420 as the MV of the
clocks, while defendant claimed P76.36 as the proportionate freight ton value.
Held: Three kinds of stipulations have often been made in a bill of lading. First, one exempting the
carrier from any and all liability for loss or damage occasioned by its own negligence. Second, one
providing for an unqualified limitation of such liability to an agree valuation. Third, 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. The first and second stipulations are invalid as contrary to public policy. The
third is valid and enforceable.
A stipulation in the bill of lading limiting the liability of the CC to a specified amount unless
the shipper declares a higher value and pays a higher freight is valid and enforceable. If a CC gives
to a shipper the choice of 2 rates, the lower of them 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 the choice
understandingly and freely, and names his valuation, he cannot thereafter recover more than the value
which he thus places upon his property.
Plaintiff bought a plane ticket from Zamboanga to Manila. When he arrived in Manila, his suitcase
was tampered with and his camera and radio were lost. PAL contended that plaintiff was bound by the
conditions printed at the back of his ticket which provided that the liability of PAL for any loss is limited to the
value of the thing unless the passenger declares in advance a higher valuation and pays an additional charge,
and that the value is conclusively deemed not to exceed P 100/ticket.
PAGE 49
Atty. Ong Yiu was a passenger on a PAL Cebu-Butuan flight to attend court hearings in Butuan. His
suitcase was accidentally sent to Manila. PAL-Manila sent the suitcase to Butuan but the lock had been opened
and a folder containing court documents was missing. Plaintiff refused to accept the luggage. PAL-Cebu
delivered the luggage to Ong Yiu with the promise to investigate the matter. Plaintiff sued and was awarded
moral and exemplary damages. CA reversed holding that PAL was guilty of simple negligence and denied
moral and exemplary damages but ordered PAL to pay P100, the baggage liability assumed by it under the
condition of carriage printed on the back of the ticket.
Held: PAL incurred delay in the delivery of petitioner's luggage. However, there was no bad faith. The
liability of PAL was limited to the stipulations printed on the back of the ticket.
While the passenger had not signed the plane ticket, he is nevertheless bound by the provision
thereof; such provisions have been held to be 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 wherein one party imposes a ready made form of contract on the
other; it is 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. A contract limiting liability upon an agree valuation does
not offend against the policy of the law forbidding one from contracting against his own negligence.
Considering that petitioner had failed to declare a higher value for his baggage, he cannot be
permitted a recovery in excess of P 100.00. Besides, passengers are advised not to place valuable items
inside their baggage. Also, there is nothing in the evidence to show the actual value of the goods
allegedly lost by petitioner.
PAN AM vs IAC, 164 SCRA 268
F:
This is a petition filed by Pan Am to limit its liability for lost baggage containing promotional and
advertising materials for films to be exhibited in Guam and the US, clutch bags, barong tagalogs and personal
belongings of Rene Pangan to the amount specified in the airline ticket absent a declaration of a higher
valuation and payment of additional charges.
Pan Am contends that its liability for lost baggage is limited to $600 ($20 x 30 kilos) as the latter did
not declare a higher value for his baggage. Such stipulation is printed at the back of the ticket.
Held : Pan Am cited Ong Yiu vs CA. Such case is squarely applicable in this case. The ruling in
Shewaram vs PAL is inapplicable since it was premised on the fact that the conditions printed at the
back of the ticket were so small and hard to read.
Liability is limited to $600 as stipulated at the back of the ticket.
The SC reversed the CA ruling awarding respondent damages for lost profits. The rule laid
down in Mendoza vs PAL provides that before damages can be awarded for loss of profits on account of
delay or failure of delivery, it must have appeared that CC had notice at the time of delivery to him of
the particular circumstances attending the shipment, and which probably would lead to such special loss
if he defaulted. In the absence of a showing that Pan Am's attention was called to the special
circumstances requiring prompt delivery of the luggage, it cannot be held liable for the cancellation of
PAGE 50
Jose Rapadas was en route from Guam to Manila. While standing in line to board the flight, he was
ordered by Pan Am's handcarry control agent to check in his Samsonite attache case. He protested on the
ground that other passengers were permitted to handcarry bulkier baggages. He tried to check-in without
having to register his attache case. He was however forced to register his baggage. He gave his attache case to
his brother who checked it in for him without declaring its contents or the value of its contents. Upon arriving
in Manila, he was given all his checked-in baggages except the attache case. Since he felt ill, he sent his son to
request for the search of the missing luggage. He sent letters of demand to Pan Am.
Pan Am offered to settle the claim for $160, representing the CC's alleged limit of liability for loss or
damage to a passenger's personal property. Rapadas filed this action for damages. He alleged that Pan Am
discriminated or singled him out in ordering that his luggage be checked in; that Pan Am neglected its duty in
the handling and safekeeping of his attache case from the point of embarkation in Guam to his destination in
Manila; that the value of the lost attache case and its contents is $42,403.90. According to him, the loss
resulted in his failure to pay certain obligations, failure to remit money sent through him to relatives, inability
to enjoy the fruits of his retirement and vacation pay and inability to return to Tonga Construction Co. to
comply with then existing contracts. During the trial, he showed proof of the contents of his attache case.
Pan Am contended that the claim was subject to the Notice of Baggage Liability Limitations attached
to the ticket. Such notice was also conspicuously posted in its offices. It alleged that its liability is limited to
$160 because Rapadas did not declare a higher value and did not pay the corresponding additional charges.
The lower court ruled in favor of Rapadas. It however did not find Pan Am guilty of discriminatory
acts or bad faith. CA affirmed the decision.
Issue: WON a passenger is bound by the terms of a passenger ticket declaring that the limitations of
liability set forth in the Warsaw Convention as amended by the Hague Protocol shall apply in case of
loss, damage or destruction to a registered luggage of a passenger. YES. Pan Am was ordered to pay
$400 and P 10,000 as attorney's fees and costs of suit.
Held: There is no dispute that there was a notice appearing on page 2 of the ticket stating that the
Warsaw Convention governs in case of death or injury to a passenger or of loss, damage or destruction
to a passenger's luggage. Such notice should be sufficient notice showing the applicability of the
Warsaw limitations. The passenger, upon contracting with the airline and receiving the plane ticket, was
expected to be vigilant insofar as his luggage is concerned. If the passenger fails to adduce evidence to
overcome the stipulations, he cannot avoid the application of the liability limitations.
The Warsaw Convention, as amended, specifically provides that it is applicable to international
carriage which it defines as "any carriage in which, according to the agreement between the parties, the
place of departure and the place of destination xxx are situated either within the territories of two High
Contracting Parties or within the territory of a single High Contracting Party if there is an agreed
stopping place within the territory of another State xxx." Nowhere in the Warsaw Convention is such
detailed notice of baggage liability limitations required. It is however a common, safe and practical
custom for air carriers to indicate beforehand the precise sums equivalent to those fixed by Art. 22(2) of
the Convention.
The facts show that Rapadas actually refused to register his attache case. In attempting to
avoid registering the luggage, he manifested a disregard of airline rules on allowable handcarried
baggages. Prudence dictates that cash and jewelry should be removed from checked-in luggage and
placed in one's pockets or handcarried. The alleged lack of enough time for him to make a declaration of
a higher value and to pay the corresponding supplementary charges cannot justify his failure to comply
with the requirement that will exclude the application of limited liability. Had he readily complied with
airline regulations from the start, this situation would not have arisen.
PAGE 51
PAGE 52
PAGE 53
PAGE 54
4 Agbayani:
Common carriers must exercise extraordinary diligence in carrying passengers.-- Art. 1755 shows
clearly the high degree of care and extra-o diligence required of a CC with respect to its passengers.
Carrier's duty of extraordinary diligence extends also to crew members.-- The duty to exercise the
utmost diligence on the part of CCs is for the safety of passengers as well as for the members of the
crew or the complement operating the carrier. This must be so for any omission, lapse or neglect thereof
will certainly result to the damage, prejudice, injuries or even death to all aboard the plane.
PAGE 55
Plaintiff was a passenger aboard defendant's plane en route from Iloilo to Manila. The plane's motors
went dead and, notwithstanding the efforts of its pilot, it plunged into the sea and sank. The passengers and the
pilot were rescued.
Held : In aviation, inevitable accident is defined as one that is not occasioned in any degree remotely
or directly by want of such skill or care as the law holds for what man is bound to exercise . Airplane
companies are not required to exercise all the care. Passengers necessarily should take upon the usual
and ordinary perils to airplane travel. A carrier is not an insurer against all risks.
A carrier is not liable for defects of ignition cables used on his plane, nor of the installation
thereof, which cables were purchased from a competent and reputable manufacturer in the absence of a
showing that it knew those defects or that such kind of ignition cable is not ordinarily used on the
airplane operated by it.
The doctrine of res ipsa loquitor cannot be applied when there is no proof that according to the
general experience of mankind, the accident was such that it does not usually occur in the ordinary
course of events without the negligence on the part of those in control.
PAGE 56
supra. Passenger aboard a bus who placed his left arm on the window lost his arm when the bus
collided with a pick up.
Held : If the carrier's EE is confronted with a sudden emergency, he is not held to the same degree of
care he would otherwise be required in the absence of such emergency.
By placing his left arm on the window, the passenger is guilty of contributory negligence, and
although contributory negligence cannot relieve the carrier but can only reduce his liability (Art. 1762),
this is a circumstance which militates against plaintiff's position. It is negligence per se for passengers
to protrude any part of his body and that no recovery can be had for an injury.
Ratio: A CC is bound to carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with due regard for all circumstances. This
extraordinary diligence required of common carriers is calculated to protect the passengers from the
tragic mishaps that frequently occur in connection with rapid modern transportation. This high standard
of care is imperatively demanded by the preciousness of human life and by the consideration that every
person must in every way be safeguarded against all injury.
Principles as to liability of CC:
(1) The liability of a carrier is contractual and arises upon breach of its obligation; there is
breach if it fails to exert extraordinary diligence accdg. to all the circumstances of each case
(2) A carrier is obliged to carry its passenger with the utmost diligence of a very cautious
person, having due regard for all the circumstances
(3) A carrier is presumed to have been at fault or to have acted negligently in case of death of,
or injury to, passengers, it being its duty to prove that it exercised extraordinary diligence
(4) The carrier is not an insurer against all risks of travel
Landingin vs Pantranco, 33 SCRA 284
F:
Plaintiffs are parents of 2 girls who were passengers on a Pantranco bus on an excursion trip from
Dagupan to Baguio. The bus was open on one side. The TC found that the crossjoint of the bus broke and the
bus started to roll back. Some passengers jumped out. The bus driver maneuvered the bus safely to the
mountainside. Two of the girls who jumped were seriously injured and died.
Held : In Lasam vs Smith, the court held that accidents caused by defects in the automobile are not
caso fortuito. The rationale is that the passenger has neither the choice nor control over the carrier
in the selection and use of the equipment and appliances in use by the carrier.
When the passenger dies or is injured, the presumption is that the CC is at fault or acted
negligently. This is only rebutted by proof on the carrier's part that it observed extraordinary diligence
required in Art. 1733 and the utmost diligence of very cautious persons required in Art. 1755.
It does not appear that the carrier gave due regard for all the circumstances with cross joints'
inspection the day previous to the accident. The bus was heavily laden, and it would be traversing
mountainous, circuitous and ascending road. Thus the entire bus would naturally be taxed more heavily
than it would be under the ordinary circumstances. The mere fact that the bus was inspected only
recently and found to be in order would not exempt carrier from liability unless it is shown that the
particular circumstances under which the bus would travel were also considered.
Landicho vs BTC, 52 OG 764
F:
Landicho boarded a BTC bus. Before he did so, the conductor helped him in placing his two baskets
of chicken inside the running board. After a distance, he claimed that he noticed one cage falling and he called
PAGE 57
Held : The facts show that the cage was not about to fall. Plaintiff was probably dizzy or sleepy that he
fell from the truck.
It is true that defendant being a CC is bound to transport its passengers from the point of origin
to the place of destination, but the duty does not encompass all the risks attendant to a passenger in
transit, for then the co. would be a good source of stipend for a family who would like to end it all by
simply boarding, paying the fare and intentionally falling off. It is enough for the CC's EEs to see to it
that the passenger places himself safely inside the vehicle, that it is operated carefully and that its
mechanism is perfectly alright to prevent mishaps. It would be unreasonable to exact upon operators to
determine beforehand whether a passenger is likely to fall dizzy or sleepy on the way, for that is the
lookout of the passenger himself. A passenger must see to it that he seats himself in a safe portion of the
vehicle.
Necesito vs Paras, 105 Phil 75
F:
A mother and son boarded a passenger autotruck of the Phil. Rabbit Bus Lines. While entering a
wooden bridge, its front wheels swerved to the right, the driver lost control and the truck fell into a creek. The
mother drowned; the son was injured.
Held : While the carrier is not an insurer of the safety of the passengers, it should nevertheless be held
answerable for the flaws of its equipment if such flaws were discoverable. The liability of the CC rests
upon negligence or his failure to exercise the utmost degree of diligence that the law requires. The
rationale of CC's liability for manufacturing defects is the fact that the passenger has neither choice
nor control over the carrier in the selection and use of the eqpt. and appliances in use by the carrier .
Having no privity whatever with the manufacturer or vendor of the defective eqpt, the passenger has no
remedy against him. In this case, the defect could have been detected with the exercise of utmost
diligence by the CC.
2. Duration of responsibility
4 Agbayani:
When relationship of carrier and passenger terminates.-- The relation of CC and passenger does not
cease at the moment that the passenger alights from the CC's vehicle at a place selected by the CC at the
point of destination, but continues until the passenger had reasonable time or a reasonable opportunity
to leave the CC's premises. What is a reasonable time or a reasonable delay within this rule is to be
determined from all the circumstances
La Mallorca vs CA, 17 SCRA 739
F:
Husband and wife together with minor children boarded a La Mallorca bus. They alighted from the
bus. The father returned to the bus to get their baggage. He was followed by his daughter. While the father
was still on the running board awaiting for the conductor to give his baggage, the bus stated to run so that the
father had to jump. His daughter was run over and was killed. The bus co. contended that when she was killed,
she was no longer a passenger and the contract of carriage had terminated.
Held: Whether or not the relation between carrier and passenger does not cease at the moment the
passenger alights from the carrier's premises is to be determined from the circumstances.
PAGE 58
The bus of Medina Trans left Cavite for Pasay with 18 passengers. Around dawn, the front tires burst
and the vehicles began to zigzag until it fell into a canal and turned turtle. Some passengers were able to get
out while four were trapped including Bataclan. Later, 10 men came to help, one of them carrying a lighted
torch, fueled by petroleum. A fire started, burning the bus and the 4 passengers. Gas had leaked when the bus
overturned.
Held: The proximate cause of the death was the overturning of the vehicle which was followed by the
negligence of the driver and the conductor who were on the road walking back and forth. They should
have known that with the position of the bus, leakage was possible aside from the fact that gas when
spilled can be smelled from a distance. The failure of the driver and conductor to have cautioned or
taken steps to warn rescuers not to bring a lighted torch too near the bus constitutes negligence on the
part of the agents of the carrier.
Aboitiz vs CA 179 SCRA 95
F:
A farmer boarded a boat owned by Aboitiz at Mindoro bound for Manila. When the vessel arrived,
Pioneer Stevedoring took over control of the cargoes loaded at the vessel and placed its crane alongside the
vessel. One hour after he disembarked, he went back to get his cargo but the crane hit him and he died.
Held: Aboitiz is still liable for his death under the contract of carriage. The relation of carrier and
passenger continues until the passenger has been landed at the port of destination and has left the vessel
owner's dock. Once created the relationship will not ordinarily terminate until the passenger has
safely alighted from the carrier's conveyance or had reasonable opportunity to leave the carrier's
premises. All persons who remain on the premises a reasonable time after leaving the conveyance are to
be deemed passengers and what is reasonable time is to be determined from all circumstances and
includes a reasonable time to see after his baggage and prepare for his departure. The CC-passenger
relationship is not terminated merely by the fact that the person transported has been carried to his
destination if the person remains in the premises to claim his baggage.
The test is the existence of a reasonable cause as will justify the presence of the passenger
near the vessel.
A CC is bound to carry its passengers as far as human care and foresight can provide, using the
utmost diligence of a very cautious person with due regard for all circumstances.
PAL vs CA, G.R. 82619, Sept. 1993
F:
Pedro Zapatos was among 21 passengers on a PAL flight from Cebu to Ozamis. The flight was CebuOzamis-Cotabato. Fifteen minutes before landing in Ozamis, the pilot received a message that the airport was
closed due to heavy rains and inclement weather and that he should proceed to Cotabato City. In Cotabato, PAL
informed the passengers of their options and that due to limited number of seats in the other flights, the basis
for priority would be the check-in sequence at Cebu. Zapatos chose to return to Cebu but was not
accommodated because he checked in as passenger no. 9. However, his personal belongings including a
camera from Japan were still on board the flight to Manila. He tried to stop the departure but his plea fell on
deaf ears. He was given a free ticket to Iligan City which he received under protest. He was left at the airport.
PAL neither provided him with transportation from the airport to the city proper nor food and accommodation
PAGE 59
Held: The passenger's complaint touched on PAL's indifference and inattention to his predicament and
not on PAL's refusal to comply with his demand for priority over the other passengers. He claimed that
he was exposed to the peril of Muslim rebels and that he suffered mental anguish, mental torture, social
humiliation, besmirched reputation and wounded feeling. He referred to PAL's apathy.
The contract of air carriage is a peculiar one. Being imbued with public interest, the law
requires common carriers to carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with due regard for all the circumstances. In Air
France vs Carrascoso, the SC held that the contract to transport passengers is quite different from any
contractual relation in that it invites people to avail of the comforts and advantages it offers. The
diversion of the flight was due to a fortuitous event. However, such did not terminate PAL's contract
with its passengers. Being in the business of air carriage, PAL is deemed equipped to deal with
situations like the case at bar. The relation of carrier and passenger continues until the latter has been
landed at the port of destination and has left the CC's premises. Hence, PAL necessarily would still
have to exercise extraordinary diligence in safeguarding the comfort, convenience and safety of the
stranded passengers until they have reached their final destination. PAL was therefore remiss in its duty
of extending utmost care to Zapatos while being stranded in Cotabato City.
The CA held : "While the failure of Zapatos to reach his destination xxx in accordance with the
contract of carriage was due to the closure of the airport on account of rain and inclement weather xxx
it becomes the duty of PAL to provide all means of comfort and convenience to its passengers when they
would have to be left in a strange place in case of such by-passing. If the cause of non-fulfillment of the
contract is due to a fortuitous event, it has to be the sole and only cause. Since part of the failure to
comply with the obligation to deliver its passengers safely to their destination lay in PAL's failure to
provide comfort and convenience to its stranded passengers using extraordinary diligence, the cause of
non-fulfillment is not solely and exclusively due to fortuitous event, but due to something that PAL
could have prevented, PAL becomes liable to the passenger." However the SC found that although PAL
was remiss in its duty of extending utmost care to Zapatos while being stranded in Cotabato City, there
was no sufficient basis to conclude that PAL failed to inform him about his other options.
3. Presumption of negligence
Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755.
4 Agbayani:
Presumption of negligence.-- CCs are presumed to have been at fault or to have acted negligently in
case of death or injuries to passengers. This disputable presumption may only be overcome by superior
evidence that he had observed extraordinary diligence prescribed in 1733, 1755, 1756
PAGE 60
PAGE 61
F:
Bus No. 800 owned by Bachelor Express and driven by Cresencio Rivera was the situs of a stampede
which resulted in the death of passengers Beter and Rautrat. The bus came from Davao City on its way to
Cagayan de Oro passing Butuan City. While in Tabon-Tabon, Butuan, the bus picked up a passenger. A
passenger suddenly stabbed a PC soldier which caused commotion and panic among the passengers. Two
passengers jumped out (finding of the TC which was reversed by the CA) of the bus and were found dead as a
result of head injuries. The passenger- assailant ran away from the bus but was killed by the police. The
parents of the dead passengers filed a complaint for a sum of money against the CC, the owner and the driver.
The CC denied liability and alleged that the driver was able to transport his passengers safely to their
respective places of destination except for the two passengers who jumped off the bus without the knowledge
and consent, much less, the fault of the driver; that the CC exercised due diligence in the choice of its EEs to
avoid as much as possible accidents; that the incident was not a traffic or vehicular accident but was an incident
very much beyond the control of the CC; that the CC was not a party to the incident as it was an act of a third
party who is not in any way connected with the CC and of which they have no control and supervision. The CC
argued that the incident's proximate cause was the act of the passenger who ran amuck and which triggered off
the commotion and panic.
The TC dismissed the complaint. The CA reversed and ordered the CC, the owner and driver
solidarily liable to the heirs of the deceased.
PAGE 62
PAGE 63
Art. 1760. The common carrier's responsibility prescribed in the preceding article cannot
be eliminated or limited by stipulation, by the posting of notices, by statements on the tickets, or
otherwise.
4 Agbayani:
Liability for negligence or willful acts of employees.-- Under 1759, CC are held liable for the death
or injuries to passengers caused by the negligence or the willful acts of their EEs, although such EEs
may have acted beyond the scope of their authority or in violation of the orders of the CC. The CC
cannot escape liability by interposing the defense that its EEs have acted without any authority or
against the orders of the CC
The passenger is entitled to protection from personal violence by the CC or its agents or EEs
since the contract of transportation obligates the CC to transport a passenger safely to his destination
and a CC is responsible for the misconduct of its EEs
Cardenas vs Fernando, 54 OG no. 4, p. 1043 (1957): (1) extraordinary diligence required of CC:
calculated to protect the passengers as demanded by the preciousness of human life and by the
consideration that every person must in every way be safeguarded against all injury; (2) liability for
injury of passenger is based on a breach of contract of carriage for failure to bring the passenger safely
to his destination
Reason for making the CC liable for the misconduct of its EEs in their own interest.-- The servant
is clothed with delegated authority and charged with the duty by the CC, to execute his undertaking to
carry the passenger safely; when the EE mistreats the passenger, he violates the contractual obligation
of the CC for which he represents the CC
Liability of CC for defects of its equipment.-- A passenger is entitled to recover damages from a CC
for an injury resulting from a defect in an appliance purchased from a manufacturer, whenever it
appears that the defect would have been discovered by the CC if it had exercised the degree of care
which under the circumstances was incumbent upon it, with regard to inspection and application of the
necessary tests; for the purposes of this doctrine, the manufacturer is considered as being in law the
agent or servant of the CC, as far as regards the work of constructing the appliance
Common carrier is exempt from acts of EE not done in line of duty.-- The CC is exempt from
liability where the EE was never in a position in which it became his duty to his ER to represent him in
discharging any duty of the CC towards the passenger; the EE is deemed as a stranger or co-passenger
since his act was not done in the line of duty
Defense of diligence in selection, etc., of employees.-- CC cannot escape liability by interposing
defense that he exercised due diligence in the selection and supervision of his EEs; his liability is based
on culpa contractual
When relationship of carrier and passenger terminates.-- The relation of CC and passenger does not
cease at the moment that the passenger alights from the CC's vehicle at a place selected by the CC at the
point of destination, but continues until the passenger had reasonable time or a reasonable opportunity
to leave the CC's premises. What is a reasonable time or a reasonable delay within this rule is to be
determined from all the circumstances
Elimination or limitation of carrier's liability.-- Under 1760, the CC's liability for the negligence or
willful acts of his EEs which cause death of or injury to passengers cannot be eliminated or limited by
(1) stipulation, (2) by the posting of notice, (3) by statements on the tickets, or (4) otherwise
PAGE 64
supra. Bus turned turtle with gas leaking out. Rescuers brought torches which resulted in fire.
Held : There was a breach of the contract of carriage and negligence on the part of the agent of the CC,
the driver. At the time of the blowout of the tires, the bus was speeding. The proximate cause of the
death was the overturning of the vehicle which was followed by the negligence of the driver and the
conductor who were on the road walking back and forth. They should have known that with the position
of the bus, leakage was possible aside from the fact that gas when spilled can be smelled from a
distance. The failure of the driver and conductor to have cautioned or taken steps to warn rescuers not
to bring a lighted torch too near the bus constitutes negligence on the part of the agents of the carrier.
De Gillaco vs MRR, 97 Phil 884
F:
Plaintiff's husband was a passenger in the train from Calamba to Manila. When the train reached the
Paco Railroad, a train guard of MRR was in the station waiting for the same train to take him to Tutuban to
report for duty. He had a long standing grudge against Gillaco and he shot and killed him upon seeing him
inside the train coach.
Held : While a passenger is entitled to protection from personal violence by the CC or its agents or EEs,
the responsibility of the CC extends only to those acts that the CC could foresee or avoid through the
exercise of the degree of care and diligence required of it. The OCC did not impose upon CC the
absolute liability for assaults of their EEs upon the passengers.
The act of the guard was entirely unforeseeable by MRR which had no means to ascertain or
anticipate that the two would meet nor could it foresee every personal rancor that might exist between
its EEs and its passengers. The shooting was a caso fortuito, both being unforeseeable and inevitable
under the circumstances.
When the crime took place, the guard had no duties to discharge. His position would be that of
a passenger also waiting transportation and not of an EE assigned to discharge duties.
Maranan vs Perez, 20 SCRA 412
F:
A passenger in a taxicab was stabbed and killed by the driver. The driver claimed self defense since
accdg to him, he was stabbed first by the passenger. The taxicab operator claimed caso fortuito.
Held: The NCC unlike the OCC makes the CC absolutely liable for intentional assaults committed by its
EEs upon its passengers (Art. 1754). The CC's liability is based on either (1) respondeat superior or
(2) the CC's implied duty to transport the passenger safely. Under respondeat superior (w/c is the
minority view), the CC is liable only when the act of the EE is within the scope of his authority and
duty. Under the second view, the CC is liable as long as the assault occurs within the course of the
performance of the EE's duty. It is no defense that the act was done in excess of authority or in
disobedience of the CC's orders. The CC's liability is absolute in the sense that it practically secures the
passengers from assaults committed by its own EEs. Three cogent reasons underlie this rule : (1) the
special undertaking of the CC requires that it furnish the passengers the full measure of protection
afforded by the exercise of the high degree of care prescribed in the law, from violence and insults in the
hands of strangers, other passengers, and from its own servants charged with the passenger's safety; (2)
liability is based on the CC's confiding in the servant's hands the performance of his contract to safely
transport the passenger, delegating therewith the duty of protecting the passenger with utmost care
prescribed by law; (3) as between the CC and the passenger, the CC must bear the risk of wrongful acts
or negligence of the CC's EEs against passengers since it has the power to select and remove them.
PAGE 65
While on a bus, an unidentified bystander hurled a stone at the bus and hit Pilapil above his left eye.
He sustained some injuries to his eye.
Held: The law does not make the CC an insurer of the absolute safety of its passengers. Art. 1755
qualifies the duty of the CC in exercising vigilance to only such as human care and foresight can
provide. The presumption created by law against the CC is rebuttable by proof that the CC had
exercised extraordinary diligence in the performance of its obligations and that the injuries suffered were
caused by fortuitous events. The liability of the CC necessarily rests upon its negligence, or its failure
to exercise the degree of diligence required by law. Under Art. 1763, the diligence required, with
regards to its liability in cases when intervening acts of strangers directly caused the injury, is the
diligence only of a good father of a family and not the extraordinary diligence generally required. The
rule is not so exacting as to require one charged with its exercise to take doubtful or unreasonable
precautions to guard against unlawful acts of strangers. The CC would only be negligent if the tort
caused by a third person could have been foreseen and prevented by them.
The injury was in no way connected to the performance of the obligation of the bus company. It
was caused by a stranger, over which the carrier had no control or even knowledge of, and which could
not have been prevented.
Bachelor Express vs CA, 180 SCRA 217
F:
supra. A passenger stabbed a PC officer which caused a commotion which resulted in the death of 2
passengers.
Held: The CC raised the defense of caso fortuito. The running amuck of the passenger was the
proximate cause of the incident and is within the context of force majeure. However, in order that a CC
may be absolved from liability in case of force majeure, it is not enough that the accident was caused by
force majeure. The CC must still prove that it was not negligent in causing the injuries resulting from
PAGE 66
Held: The conduct of plaintiff in undertaking to alight while the train was yet slightly underway was not
characterized by imprudence and that he was not guilty of contributory negligence.
The circumstances show that it was no means so risky for him to get off while the train was yet moving.
It is not negligence per se for a traveler to alight from a slowly moving train.
Isaac vs A. L. Ammen
F:
supra. Passenger aboard a bus who placed his left arm on the window lost his arm when the bus
collided with a pick up.
PAGE 67
SC has held that these provisions merely declare the carrier liable for damages in the
enumerated cases, if the conditions therein specified are present. Neither said provisions nor others in
the Convention regulate or exclude liability for other breaches of contract by the carrier.
D. Damages Recoverable from Common Carriers
1. In general
Art. 1764. Damages in cases comprised in this Section shall be awarded with the title
XVIII of this book concerning damages. Article 2206 shall also apply to the death of a passenger
caused by the breach of contract by a common carrier.
Art. 2197. Damages may be:
(1) Actual or compensatory;
(2) Moral;
(3) Nominal;
(4) Temperate or moderate;
(5) Liquidated;
(6) Exemplary or corrective.
2. Actual or compensatory
PAGE 68
Edgardo Cariaga, a fourth year medical student of UST, was a passenger of an LTBC bus which
bumped against a train of MRR on the national highway crossing a railroad tract at Laguna de Bay. Cariaga
suffered severe injuries on the head making him unconscious during the first 35 days after the accident,
reducing his intelligence by 50% and rendering him in a helpless condition, virtually invalid, both physically
and mentally. LTBC paid all medical expenses plus allowance during convalescence. Later, Cariaga's parents
brought an action to recover damages from LTBC and MRR in the amount of P 312,000 as actual,
compensatory, moral and exemplary damages. LTBC disclaimed liability and filed a cross-complaint against
MRR for recovery of expenses paid by it to the plaintiff placing MRR negligent for not providing a crossing bar
at the national highway railroad track. Laguna CFI dismissed the cross-complaint against MRR and held
LTBC liable for P 10,000 as compensatory damages with interest. Plaintiff and LTBC appealed.
Held: The train driver was not negligent. He sounded the train's whistle four times before the
intersection, which were heard even by the bus passengers. The bus did not slow down but instead the
bus driver tried to pass the intersection before the train. In addition, another LTBC bus which arrived
ahead of the bus in this case, at the crossing heeded the train whistle by stopping and allowing the train
to pass. Clearly, the bus driver was negligent in totally disregarding the warning. On the other hand,
MRR cannot be held to be contributorily negligent because LTBC was not able to discharge its burden
of proof when it alleged that MRR violated its charter by failing to ring the locomotive bell.
PAGE 69
supra. Baggage containing promotional and advertising materials for films to be exhibited in the US,
clutch bags, barong tagalogs and personal belongings was lost. PAN AM sought to limit its liability to the
amount specified in the ticket absent a declaration of higher valuation and the payment of addtl. charges.
Held: On the basis of stipulations printed at the back of the ticket, Pan Am contends that its liability for
the lost baggage of Pangan is limited to $ 600.00 ($20 x 30 kilos) as the latter did not declare a higher
value for his baggage and pay the corresponding charges.
The SC applied the ruling in Mendoza vs PAL: Before defendant could be held to special
damages, such as alleged loss of profits on account of delay or failure of delivery, it must have appeared
that he had notice at the time of delivery to him of the particular circumstances attending the shipment,
and which probably would lead to such special loss if he defaulted. In order to impose on the
defaulting party further liability than for damages naturally and directly, i.e. in the ordinary course of
things, arising from a breach of contract, such unusual or extraordinary damages must have been
brought within the contemplation of the parties as the probable result of the breach at the time of or
prior to contracting. In the absence of proof that Pan Am's attention was called to the special
circumstances requiring prompt delivery of Pangan's luggages, petitioner cannot be held liable for the
cancellation of Pangan's contracts as it could not have reasonably foreseen such eventuality when it
accepted the luggage for transit. Pan Am was not privy to the contracts of Pangan nor was its attention
called to the condition therein requiring delivery of the promotional and advertising materials on or
before a certain date.
No attorney's fees could be awarded since there was no unjustified refusal by Pan Am to satisfy
the passenger's just and valid claim.
PAGE 70
Policronio Quintos boarded a Villa Rey Transit bus at Lingayen, Pangasinan for Manila and was
seated on the first seat right side. When they reached the national highway in Pampanga, the bus frontally hit
the rear side of a bull cart filled with hay. The end of the bamboo pole tied to the cart hit the windshield and
landed on the face of Quintos who was seated in front. He died of cerebral injuries. His sisters and surviving
heirs brought an action against the bus co. The TC and CA held Villa Rey liable for P 63,750.00.
Held: The determination of damages due is dependent on 2 factors : (1) on the no. of years on the basis
of which damages shall be computed (life expectancy); and (2) rate at which the losses sustained should
be fixed.
CA determined life expectancy accdg. to the American Expectancy Table of Mortality; and since
Quintos was around 30 years old at the time of his death : 2/3 x [80 - 30] = 33 1/3 years. The bus co.
wanted to use the 4 year basis adopted in Alcantara vs Surro but the court held that the case is not
controlling as it did not lay down any rule on the length of time to be used in the computation of
damages. In fact, it declared that there is no fixed basis for determination of indemnity and much is left
to the discretion of the court considering the material damages involved and that there can be no exact
or uniform rule for measuring the value of human life and the measure of damages cannot be arrived at
by precise mathematical calculations.
Villa Rey impugns the decision on the ground that damages will have to be paid NOW where
most of those sought to be indemnified will be suffered years later. This argument if offset by the fact
that payment of the award will take place upon the finality of the decision, fixed at the rate of P 2,184
per year and did not anymore compute the potentiality and capacity of Quintos to increase his future
income, upon conclusion of his training, when he would be promoted and receive a higher salary.
In determining the losses sustained by the dependents and heirs of Quintos. they consist NOT of
the full amount of his earnings but of the support they would have received from him had he not died.
In fixing said amount, the necessary living expenses should therefore be deducted from his earnings.
The amount recoverable would therefore be the NET earnings, which is the portion which the
beneficiaries would have received. To this sum must be added P12,000 pursuant to Art. 104 and 107 of
the RPC, in relation to Art. 2206, NCC and P 1,727.95 for the amount actually spent by the sisters for
his medical and burial expenses and
P 2, 500 attorney's fees.
PAL vs CA, 185 SCRA 110
F:
In 1960, Nicanor Padilla boarded the PAL flight from Iloilo to Manila. The plane crashed on Mt.
Baco, Mindoro. The plane, a PI-C133, was manufactured in 1942 and was acquired by PAL in 1948. It had
been certified airworthy by the Civil Aeronautics Administration. As a result of her son's death, Mrs.
Padilla demanded P 600,000 as actual and compensatory damages plus exemplary damages and P 60,000
attorney's fees.
Prior to his death, Nicanor Padilla was 29 years old, President and General Manager of Padilla
Shipping Co. at Iloilo City, and a legal assistant of the Padilla Law Office. Upon learning of the death of her
son, she suffered shock and mental anguish, because her son who was still single was living with her. Nicanor
had life insurance of P 20,000, the proceeds of which were paid to his sister. Eduardo Mate of the Allied
Overseas Trading Co. testified that the deceased was one of the incorporators of the co. and also its VP with a
monthly salary of P 455. Isaac Reyes, auditor of Padilla Shipping Co., declared that the deceased was President
and General Manager and received a salary of P 1,500 per month.
The RTC and the CA awarded damages of P 477,000 as award for the expected income of the
deceased, P 10,000 as moral damages; P 10,000 as attorney's fees and to pay the costs. PAL appealed the
decision since accdg. to it, the court erred in computing the awarded indemnity based on the life expectancy of
the deceased rather than on the life expectancy of the mother. Accdg. to it, the life expectancy of the deceased
or of the beneficiary, whichever is shorter, is used in computing for amount of damages.
PAGE 71
supra. While the jeepney was descending the Sta. Mesa bridge at an excessive rate of speed, the driver
lost control, causing it to swerve and hit the bridge wall. Five of the passengers were injured, including the
respondent. The CA awarded moral damages.
Held: Art. 1764 makes it all the more evident that where the injured passenger does not die, moral
damages are not recoverable unless it is proved that the CC was guilty of malice or bad faith. In the
case at bar, there is no other evidence of such malice to support an award of moral damages. To award
moral damages for breach of contract, without proof of bad faith or malice on the part of the CC, as
required by Art. 2220, would be to violate the clear provisions of the law, and constitute unwarranted
legislation. A CC's bad faith is not to be lightly inferred from a mere finding that the contract was
PAGE 72
Plaintiff, a civil engineer, was a member of a group of 48 Filipinos that left Manila for Lourdes on
March 30, 1958. Air France, through its authorized agent, PAL, issued to plaintiff a first class round trip ticket
from Manila to Rome. From Manila to Bangkok, he traveled first class, but at Bangkok, Air France forced him
to vacate the first class seat that he was occupying because there was a white man who had a better right to the
seat. There was a commotion when plaintiff first refused to give up his seat, but he was pacified by his fellow
Filipino passengers to give up his seat and transfer to another class.
The lower court sentenced Air France to pay P 25,000 as moral damages, P 10,000 as exemplary
damages, the difference in fare between first class and tourist class plus P 3,000 for attorney's fees and costs of
suit. The CA reduced the refund from P 393.20 to P 383.20.
Held: Air France contended that the issuance of the first class ticket was no guarantee that he would
have a first class ride, but such would depend upon the availability of first class seats. The SC ruled
that it could not understand how a reputable firm like Air France could have the indiscretion to give out
tickets it never meant to honor at all. It received the corresponding amount in payment of first-class
tickets and yet it allowed the passenger to be at the mercy of its EEs. Plaintiff was indeed confirmed for
first class all the way to Rome.
There was contract to furnish plaintiff a first class passage. Said contract was breached when
the CC failed to furnish the first class transportation at Bangkok. Third, there was bad faith when
petitioner's EE compelled Carrascoso to leave his first class accommodation after he was already seated
and to take a seat in the tourist class by reason of which he suffered inconvenience, embarrassments and
humiliation, thereby causing him mental anguish, serious anxiety, wounded feelings, and social
humiliation, resulting in moral damages. It is true that the complaint did not use the term Bad Faith.
But the interference of BF is there. The manager not only prevented Carrascoso from enjoying his right
to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made
him suffer the humiliation of having to go to the tourist class compartment -- just to give way to another
passenger whose right thereto has not been established. This is certainly BF. For the willful malevolent
act of CC's manager, the CC-ER must answer. Moral damages are recoverable.
CC's contract with Carrascoso is attended with public duty. The expulsion of Carrascoso is a
violation of a public duty by the CC -- a case of quasi-delict. Damages are proper. The manner of
ejectment of Carrascoso fits into the legal precept for awarding exemplary damages in addition to moral
damages.
Lopez vs Pan Am, 16 SCRA 431
F:
Plaintiffs made first class reservations with defendant air carrier, in its Tokyo-SF flight, which
reservation was confirmed and first class tickets issued; but defendant's agent by mistake canceled plaintiff's
reservations and thereafter deliberately withheld from plaintiffs the information, letting them go on believing
that their first class reservations stood valid and confirmed, expecting some cancellations of bookings would be
made before the flight time, which failed to occur. Upon arrival in Tokyo, only then were the plaintiffs
informed that there were no accommodations for them in the first class, and they were constrained, due to
pressing engagements in the US, to take the flight as tourist passengers, which they did under protest.
Plaintiffs sued the defendant for moral and exemplary damages. The Rizal CFI awarded the plaintiffs moral
and exemplary damages and attorney's fees. Upon plaintiff's MFR, said damages were increased in amount.
Held: In so misleading the plaintiffs into purchasing first class tickets in conviction that they had
confirmed reservations when in fact they had none, defendant willfully and knowingly placed itself into
position of having breached its contract with plaintiffs.
PAGE 73
Plaintiff took a first class accommodation on Lufthansa Airlines in Rome for his trip to Manila, with
confirmation of the airlines office, but its EE on seeing plaintiff's Filipino nationality in his passport, disallowed
him to board the place and his seat was given to a Belgian. Plaintiff having a heart ailment was advised by his
physician to take only a first class seat, but he was compelled to take an economy seat with a promise of the
Lufthansa EE that plaintiff will be transferred to first class in Cairo and onward to Hongkong. Upon arrival in
Cairo, the promise was not complied with. Similar false representations were made to him at Dharnan and
Calcutta. Plaintiff sued the airlines for damages. TC awarded plaintiff moral and exemplary damages.
Held: It is the opinion of the SC that moral damages should be raised from P 100,000 to P 150,000 and
exemplary damages be increased from P 30,000 to P 100,000. It is our considered view that when it
comes to contracts of common carriage, inattention and lack of care on the part of the CC resulting in
the failure of the passenger to be accommodated in the class contracted for amounts to bad faith or
fraud which entitles the passenger to an award of moral damages in accordance with Art. 2220. In this
case, the breach appears to be of graver nature, since the preference given to the Belgian passenger over
plaintiff was done willfully and in wanton disregard of plaintiff's rights and his dignity as a human being
and as a Filipino, who may not be discriminated against with impunity. Since both Alitalia and
Lufthansa are members of IATA and are agents of each other, they are bound by the mistakes committed
by a member such as the mistake of the Alitalia EE to inform Ortigas that he could travel first class
instead of only being waitlisted. The award of higher damages is justified by the aggravation of the
situation when the Lufthansa EE at Rome falsely noted on Ortigas' ticket that he was traveling economy
from Rome to HK and which was repeated four times. Also taken into consideration was the heart
condition of Ortigas which gave him added apprehension about traveling economy against the advice of
the doctor.
4. Exemplary
Art. 2229. Exemplary or corrective damages are imposed, by way of example or
correction for the public good, in addition to the moral, temperate, liquidated or compensatory
damages.
Art. 2232. In contracts and quasi contracts, the court may award exemplary damages if
the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner.
Art. 2233. Exemplary damages cannot be recovered as a matter of right; the court will
decide whether or not they should be adjudicated.
Mecenas vs CA, 180 SCRA 83
PAGE 74
M/V Tacloban City (TC) left Amlan, Negros Oriental bound for Manila. M/V Don Juan (DJ) left
Manila bound for Bacolod. TC had visual contact of DJ when they were about 5 miles apart and as a
precaution, it was steered to its left. DJ had radar contact of TC when they were four miles apart and following
R18 of the International Rules of the Road when a collision is possible, it was steered to its right. At 10:30 PM,
both collided as a result of which DJ sank 15 minutes later and hundreds of its passengers perished.
Petitioners, children of the victims, filed a case against Negros Navigation, owner of DJ, based on
quasi-delict. The RTC awarded damages of P 400,000 for the death of plaintiffs' parents and P 15,000 for
attorney's fees. The CA modified the award to P 100,000 as actual and compensatory damages.
Held: Before going into the issue, the SC ruled that the action which was based on quasi-delict should
be appropriately regarded as grounded on contract, and indulged in the presumption of negligence on
the part of the CC although its EEs may have acted beyond the scope of their authority or even in
violation of its instructions. Its liability would include moral damages (Art. 1764) and exemplary
damages if the defendants acted recklessly or with gross negligence (Art. 2332).
There is no question that the defendants are negligent. As found by the CFI, DJ steered to the
right while TC continued its course to the left. There can be no excuse for them not to realize that with
such maneuvers, they will collide. They executed maneuvers inadequately and too late, to avoid
collision. The question is WON the defendants were recklessly or grossly negligent. The SC ruled in
the affirmative.
As for the captain, he was playing mahjong before and up to the time of the collision. WON he
was then off-duty is immaterial; there is, both realistically speaking and in contemplation of law, no
such thing as off-duty hours for the master of a vessel at sea that is a CC upon whom the law imposes
the duty of extraordinary diligence. When the collision occurred, the captain failed to supervise his
crew in the process of abandoning the ship and he failed to avail of measures to prevent the too rapid
sinking of his vessel, thus aggravating the casualties.
As for Negros Aviation, in permitting, or in failing to discover and correct the regularity of the
captain's mahjong sessions while DJ was at sea, it must be deemed grossly negligent. It also sailed with
an overload (1,004 passengers and crewmembers).
As for the failure of TC to follow R18 by turning right instead of left, the SC ruled that it is not
applicable and will not relieve DJ from responsibility if the collision could have been avoided by proper
care and skill on her part or even by a departure from the rules. DJ is still at fault when, upon seeing
TC turn to its left, it still turned to its right resulting in the collision.
The SC awarded moral damages of P 307,000 and exemplary damages of P 307,000 and
attorney's fees of P 15,000 together with actual and compensatory damages for wrongful death of P
126,000 and P 60,000 for a total of P 815,000. Although the petitioners only asked for P 400,000
award of damages granted by the CFI, the SC increased it to P 800,000 following the doctrine that the
SC must consider and resolve all issues which must be decided in order to render substantial justice to
the parties, including issues not explicitly raised by the parties affected.
In discussing the rule of exemplary damages in law, the SC looks to it as an instrument to
serve the ends of law and public policy by reshaping socially deleterious behaviors, specifically, in
the case, to compel CC to control their EEs, to tame their reckless instincts, and to force them to take
adequate care of human beings and their property.
5. Nominal, Temperate and Liquidated
Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which
has been violated or invaded by the defendant, may be vindicated or recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered by him.
Art. 2224. Temperate or moderate damages, which are more than nominal but less than
compensatory damages, may be recovered when the court finds that some pecuniary loss has been
suffered but its amount cannot, from the nature of the case, be proved with certainty.
PAGE 75
Art. 2226. Liquidated damages are those agreed upon by the parties to a contract, to be
paid in case of breach thereof.
Art. 1757. The responsibility of a common carrier for the safety of passengers as required
in Arts. 1733 and 1755 cannot be dispensed with or lessened by stipulation, by the posting of
notices, by statements on tickets, or otherwise.
Alitalia vs IAC, 192 SCRA 10
F:
Dr. Felipa Pablo, an associate professor of UP and a research grantee of the Phil. Atomic Energy
Association was invited to take part at a meeting sponsored by the United Nations in Ispra, Italy. She accepted
the invitation and was then scheduled by the organizers to read her paper. She was to be the 2nd speaker on the
first day of the meeting. She then booked passage with Alitalia. She arrived in Milan on the day before the
meeting in accordance with the itinerary set for her by Alitalia but her luggage was delayed as it was in one of
the succeeding flights from Rome to Milan. However, the other flights from Rome did not have her baggage on
board. Her luggage consisted of 2 suitcases-- one for her clothing and personal items and the other for her
scientific papers, slides and other research material.
Feeling desperate, she went to Rome to try to locate her bags. She inquired about her suitcases in the
international and domestic airports and filled out the forms required by Alitalia for people in her predicament.
However, her baggage could not be found. Discouraged, she returned to Manila without attending the meeting
in Ispra, Italy.
In Manila, she demanded that Alitalia make reparation for damages suffered by her. Alitalia offered
her free airline tickets which she rejected while instituting this action. Her bags were located and forwarded to
Ispra but only on the day after her scheduled appearance. As she was no longer there to accept delivery, her
bags were not actually returned to her until after 11 months. The CFI awarded nominal damages of P 20,000
and attorney's fees of P 5,000 plus costs of the suit. The IAC increased the award of nominal damages to P
40,000. The increase was justified as follows-- considering the negligence committed by defendant, the amount
of P20,000 under present inflationary conditions as awarded to plaintiff as nominal damages is too little to
make up for the plaintiff's frustration and disappointment in not being able to appear at said conference, and for
the embarrassment and humiliation she suffered from the academic community for failure to carry out an
official mission for which she was singled out by the faculty to represent her institution and the country.
Alitalia appealed on the following grounds: (1) That the Warsaw Convention should have been
applied to limit Alitalia's liability; and (2) That there is no warrant in fact or in law for the award of nominal
damages and attorney's fees.
Held: Under the Warsaw Convention, an air carrier is made liable for damages for: (1) The death,
wounding or other bodily injury of a passenger if the accident causing it took place on board the aircraft
or in the course of its operations of embarking or disembarking; (2)
The destruction, or loss of damage to, any registered luggage or goods, if the occurrence causing it took
place during the carriage by air; and (3) Delay in the transportation by air of passengers, luggage or
goods. The Convention also limits the liability of the carriers for each passenger to 250,000 francs and
for registered baggage and cargo to 250 francs per kg unless the passenger has declared a higher rate
and has paid additional charges. The Warsaw Convention, however, denies to the carrier availment of
the provisions which exclude or limit his liability, if the damage is caused by his wilful misconduct or
by such default on his part as is considered to be equivalent to wilful misconduct or if the damage is
similarly caused by any agent of the carrier acting within the scope of his employment. The Convention
does not thus operate as an exclusive enumeration of the instances of an airline's liability, or as an
absolute limit of the extent of that liability. Such proposition is not borne out by the language of the
Convention. The Convention should be deemed a liability only in those cases where the cause of the
death or injury to person, or destruction, loss or damage to property or delay in its transport is not
attributable to or attended by any wilful misconduct, bad faith, recklessness, or otherwise improper
conduct. The Convention does not regulate or exclude liability for other breaches of contract by the
carrier. Otherwise, an air carrier would be exempt from any liability for damages in the event of its
PAGE 76
After the death of plaintiff's mother Crispina Galdo, Saludo in Chicago, Pomierski and Son Funeral
Home, made the necessary preparations and arrangements for the shipment of the body from Chicago to the
Philippines. They had the body embalmed and secured a permit from the Philippine Vice Consul in Chicago.
The Phil. Vice Consul sealed the shipping case on Oct. 26,1976. On the same date, Pomierski brought the
remains to the Continental Mortuary Air Service (CMAS) which made the necessary arrangements such as
flights, transfers,etc. CMAS is a national service used by undertakers which furnishes the air pouch in which
the casket is enclosed in and they see to it that the remains are taken to the proper air freigh terminal. CMAS
booked the shipment with PAL, through its agent Air Care International, with Pomierski as shipper and Maria
Saludo as consignee. PAL Airway Bill was issued for the route from Chicago to SF on board TWA Flight 131 of
Oct. 27, 1976, and from SF to Manila, on board PAL Flight 107 of Oct. 27, 1976, and from Manila to Cebu on
board PAL Flight 149 of Oct. 29, 1976.
Maria Saludo and Saturnino Saludo, children of the deceased were booked with United Airlines from
Chicago to California and with PAL from California to Manila. When she learned of her mother's
arrangements, she changed reservations from UA to TWA. She watched from the look-out area but she saw no
body being brought on the flight. She reluctantly took the TWA flight with her cousin's assurance to look into
the matter. Upon arrival in SF, she went to the TWA counter to inquire about her mother's remains but she was
told that they did not know anything about it. She then called Pomierski who then called CMAS which in a
matter of 10 minutes told him that the remains had been switched with another body and had been sent to
Mexico. Based on the facts, there was a mix-up in Chicago Airport between the two bodies. Arrangements
were made to send the body to California through Texas. On October 28, 1976, the remains arrived in SF and
was received by PAL at 7:45 p.m. The shipment was immediately loaded on PAL flight for Manila that same
evening and arrived in Manila on October 30, 1976, a day after its expected arrival on October 29, 1976.
Plaintiffs then filed a case against PAL and TWA before the CFI of Leyte, praying for the award of
actual damages of P 50,000, moral damages of P 1,000,000, exemplary damages and attorney's fees and costs of
suit. The CFI and CA absolved the two airline companies. Plaintiffs then appealed the decision on the ff.
grounds: (1) That the delay in the delivery of the remains was due to the fault of the airlines, (2) The one day
delay in the delivery constitutes breach of contract as would entitle them to damages, (3) That damages are
PAGE 77
Held: (1) Petitioners allege that private respondents received the casketed remains of petitioner's mother
on Oct. 26, 1976 as evidenced by the issuance of the PAL Airway Bill. From said date, private
respondents were charged with the responsibility to exercise extraordinary diligence so much so that for
the alleged switching of the caskets on Oct. 27, 1976, or one day after private respondents received the
cargo, the latter must necessarily be liable. Petitioners relied on the doctrine that the issuance of the bill
of lading carries the presumption that the goods were delivered to the carrier issuing the bill, for
immediate shipment, and it is nowhere questioned that a bill of lading is prima facie evidence of the
receipt of the goods by the carrier. A bill of lading is a written acknowledgment of the receipt of the
goods and an agreement to transport and deliver them at a specified place to a person named or on his
order. A bill of lading is a receipt as to the quantity and description of the goods shipped and a contract
to transport the goods to the consignee or other person therein designated, on the terms specified in such
instrument.
SC: An airway bill estops the carrier from denying receipt of goods. However, as between the
shipper and the carrier, when no goods have been delivered for shipment no recitals in the bill can estop
the carrier from showing the true facts. We must therefore allow the airline companies to explain, why,
despite the issuance of the airway bill and the date thereof, they deny having received the remains of
Saludo on Oct. 26, 1976.
As found by the CA, the airway bill was issued, not as evidence of receipt of delivery but
merely as confirmation for the booking made for the SF-Manila flight scheduled on October 27, 1976.
It was not until Oct. 28 that PAL received physical delivery of the body at SF. The extraordinary
responsibility of CC begins from the time the goods are delivered to the carrier. This responsibility
remains in force even when they are temporarily unloaded or stored in transit, unless the shipper
exercises the right of stoppage in transitu, and terminates ony after the lapse of a reasonable time for
the acceptance of the goods by the consignee or other person entitled to receive them. 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 esablished can the reqt. of extraordinary
responsibility arise.
As found by the CA, the body was really received by PAL on Oct. 28, 1976 and it was from
such date that it became responsible for the agreed cargo under the airway bill. Consequently, for the
switching of caskets prior thereto which was not caused by them and subsequent events caused thereby,
PAL cannot be held liable.
(2) Petitioners allege that even assuming CMAS was at fault, PAL would still be liable because whoever
brought the cargo to the airport or loaded it on the plane did so as agent of PAL.
SC: This contention is without merit. When the cargo was received from CMAS, Air Care Intl,
PAL's agent and TWA had no way of determining its actual contents, since the casket was hermetically
sealed by the Philippine Vice-Consul. They had to rely on the information given by CMAS. No amount
of inspection by the airlines could have guarded against the switching that had taken place. They had no
authority to unseal and open the casket. It is the right of the carrier to require good faith on the part of
those persons who deliver goods to be carried by it. In the absence of more definite information, the
carrier has the right to accept shipper's marks as to the contents of the package offered for
transportation and is not bound to inquire particularly about them. It can safely be said that a CC is
entitled to fair representation of the nature and value of the goods to be carried, with the concomitant
right to rely thereon, and that a carrier has no obligation to inquire into the correctness or sufficiency of
such information. The consequent duty to conduct an inspection arises in the event that there should be
reason to doubt the veracity of such representations.
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The responsibility of the CC commences from the moment he receives the merchandise --> the delivery
must be made to him personally or through his duly authorized agent, and at the place indicated for
receiving the merchandise
2. Route
Art. 359. If there should be an agreement between the shipper and the carrier with regard
to the road over which the transportation is to be made, the carrier may not change the route,
unless obliged to do so by force majeure; and should he do so without such cause, he shall be liable
for any damage which may be suffered by the goods transported for any other cause whatsoever,
besides paying the amount which may have been stipulated for such a case.
When on account of said force majeure the carrier is obliged to take another route, causing
an increase in the transportation charges, he shall be reimbursed for said increase after formal
proof thereof.
Where there is an agreed route, the CC shall be liable for losses due not only to the change of route but
also to other causes, together with the indemnity agreed upon --> the CC may not avail of the contract
limiting his liability in case of unjustified change of route
Where there is no agreed route, the carrier must select one which may be the shortest, least
expensive and practically passable
3. Care of Goods
Article 361. The merchandise shall be transported at the risk and venture of the shipper, if
the contrary was not expressly stipulated.
Therefore, all damages and impairment suffered by the goods during the transportation,
by reason of accident, force majeure, or by virtue of the nature or defect of the articles, shall be for
the account and risk of the shipper.
The proof of these accidents is incumbent on the carrier.
When goods are delivered on board a ship in good order and condition, and the shipper-owner delivers
them to the shipper in bad order and condition, it then devolves upon the shipowner to both allege and
prove that the goods were damaged by reason of some fact which legally exempts him from liability
The shipper will suffer losses and deteriorations arising from fortuitous event, force majeure, or
inherent nature and defects of the goods (at the risk and venture of the shipper)
It does not mean that the CC is free from liability for losses and deterioration arising from his
negligence or fault, which is presumed
Relate this with Art. 1734 and 1735 of the Civil Code
Art. 362. The carrier, however, shall be liable for the losses and damages arising from the
causes mentioned in the foregoing article if it is proved that they occurred on account of his
negligence or because he did not take the precautions usually adopted by careful persons, unless
the shipper committed fraud in the bill of lading, making him believe that the goods were of a class
or quality different from what they really were.
PAGE 89
Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of
the goods, unless the same is due to any of the ff. causes only:
(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. (New Civil Code.)
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, CCs are presumed to have been at fault or
to have acted negligently, unless they prove that they observed extraordinary diligence as required
in Art. 1733. (Ibid.)
4. Delivery
(a) Condition of Goods
Art. 363. With the exception of the cases prescribed in the second paragraph of Article
361, the carrier shall be obliged to deliver the goods transported in the same condition in which,
according to the bill of lading, they were at the time of their receipt, without any damage or
impairment, and should he not do so, he shall be obliged to pay the value of the goods not
delivered at the point where they should have been and at the time the delivery should have taken
place.
If part of the goods transported should be delivered the consignee may refuse to receive
them, when he proves that he cannot make use thereof without the others.
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Art. 367. If there should occur doubts and disputes between the consignee and the carrier
with regard to the condition of goods transported at the time of their delivery to the former, the
said goods shall be examined by experts appointed by the parties, and in case of disagreement, a
third one appointed by the judicial authority, the result of the examination being reduced to
writing; and if the persons interested should not agree to the report of the experts and could not
settle their disputes, said judicial authority shall order the deposit of the merchandise in a safe
warehouse, and the parties interested shall make use of their rights in the proper manner.
If doubts and disputes should arise between the consignee and the CC with respect to the condition of
the goods transported at the time of the delivery, Art. 367 shall govern --> expert opinion on the matter
is not conclusive on the parties
(b) To Whom Delivery Made
Art. 368. The carrier must deliver to the consignee without any delay or obstruction the
merchandise received by him, by the mere fact of being designated in the bill of lading to receive it;
and should he not do so he shall be liable for the damages which may arise therefrom.
The delivery must be made to the consignee
Where the B/L is issued to the order of the shipper, the CC is under a duty not to deliver the
merchandise except upon presentation of the B/L duly indorsed by the shipper, and where the CC
delivered the goods to another person who did not present the B/L, such CC is liable for misdelivery -->
duty to transport the goods safely and to deliver them to the person indicated in the B/L
Misdelivery: Delivery to a person different from that indicated in the B/L --> different from nondelivery
In case of conflicting orders of the shipper and the consignee (where one orders the return and
the other orders the delivery of the goods), there is no other recourse than to determine at what moment
the right of the shipper to countermand the shipment terminates --> this moment can be no other than the
time when the consignee or legitimate holder of the B/L appears with such B/L before the CC and makes
himself a party to the contract (prior to that time, he is a stranger to the contract)
(c) Judicial Deposit
Art. 369. Should the consignee be not found at the domicile indicated in the bill of lading,
or should refuse to pay the transportation charges and expenses, or to receive the goods, the
deposit of said goods shall be ordered by the municipal judge, where there is no judge of first
instance, to be placed at the disposal of the shipper or sender, without prejudice to a person having
a better right, this deposit having all the effects of a delivery.
Judicial deposit as a remedy:
1. where the consignee cannot be found at the residence indicated
2. where the consignee refused to pay the transportation charges
3. where the consignee refuses to receive the goods
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2. Right to abandon
Art. 371. In cases of delay on account of the fault of the carrier, referred to in the
foregoing articles, the consignee may leave the goods transported in the hands of the carrier,
informing him thereof in writing before the arrival of the same at the point of destination.
When this abandonment occurs, the carrier shall satisfy the total value of the goods, as if
they had been lost or mislaid.
Should the abandonment not occur the indemnity for loss and damages on account of the
delays cannot exceed the current price of the goods transported on the day and at the place where
the delivery was to have been made. The same provision shall be observed in all cases where this
indemnity is due.
Right of abandonment: Exceptional but limited right
The right must be exercised during the intervening period between the moment when the fault of
the CC produces a delay, which is the generative cause of the action, until the moment just before the
arrival of the goods at the place of delivery, by communicating such abandonment to the CC in writing
Where these conditions do not concur, the refusal to accept cannot be effective
Damages for abandonment : Art. 371 (2) --> subject to Civil Code
Art. 360. The shipper may, without changing the place where the delivery is to be made,
change the consignment of the goods delivered to the carrier, and the latter shall comply with his
orders, provided that at the time of making the change of the consignee the bill of lading
subscribed by the carrier, if one were issued, be returned to him, exchanging it for another containing the novation of the contract.
The expenses arising from the change of consignment shall be defrayed by the shipper.
Art. 365. If, on account of the damage, the goods are rendered useless for sale or
consumption for the use for which they are properly destined the consignee shall not be bound to
receive them, and may leave them in the hands of the carrier, demanding payment of their value at
the current market price that day.
If among the goods damages there should be some in good condition and without any
defect whatsoever, the foregoing provision shall be applicable with regard to the damaged ones,
and the consignee shall receive those which are sound, this separation being made by distinct and
separate articles, no object being divided for the purpose, unless the consignee proves the impossibility of conveniently making use thereof in this form.
The same provision shall be applied to merchandise in bales or packages, with distinction
of the packages which appear sound.
Art. 363. With the exception of the cases prescribed in the second paragraph of Article
361, the carrier shall be obliged to deliver the goods transported in the same condition in which,
according to the bill of lading, they were at the time of their receipt, without any damage or
impairment, and should he not do so, he shall be obliged to pay the value of the goods not
delivered at the point where they should have been and at the time the delivery should have taken
place.
If part of the goods transported should be delivered the consignee may refuse to receive
them, when he proves that he cannot make use thereof without the others.
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Two sanctions for the enforcement by the CC of the payment of expenses and transpo charges :
1. Art. 374 - judicial sale of the goods transported
2. Art. 375 - creating a lien in favor of the CC on the goods transported --> 8 day period has
been increased to 30 days by the NCC
The purpose of the lien and time limit: Reciprocal to that established in favor of the shipper
under
Art. 372(par. 2); time limit rests on the necessity which the consignee must have for alienation of the
goods, by which the CC is given a period relatively urgent pertaining to the said goods transported -->
after the time has prescribed, his preference prescribes and his only remedy is by ordinary action
The mere fact that the goods remain in the possession of the CC because they have not been
removed by the consignee, and the right of the CC to demand the sale of the goods to satisfy the cost of
transportation and other expenses, do not deprive the CC of its right to demand in a proper action the
amounts owing to it by reason of the contract of transpo
The bankruptcy of the consignee shall not cut off the preference of the CC, provided that the
claim is made w/in 30 days from date of delivery (NCC)
5. Obligation to return bill of lading
Art. 353. The legal basis of the contract between the shipper and the carrier shall be the
bills of lading, by the contents of which all disputes which may arise with regard to their execution
and fulfillment shall be decided, no exceptions being admissible other than forgery or material
errors in the drafting thereof.
After the contract has been complied with, the bill of lading shall be returned to the carrier
who may have issued it, and by virtue of the exchange of this title for the article transported, the
respective obligations and actions shall be considered canceled, unless the same act the claims
which the contracting parties desire to reserve are reduced to writing, exception being made of the
provisions of Article 366.
In case the consignee, upon receiving the goods, cannot return the bill of lading subscribed
by the carrier, due to its loss or for any other cause, he shall give said carrier a receipt for the
goods delivered, this receipt producing the same effect as the return of the bill of lading.
Under par. 2, Art. 353, after the contract of transpo has been complied with, the B/L shall be returned to
the issuing CC in exchange for the goods transported which are delivered to the shipper or consignee
Where the consignee upon receiving the goods cannot return the B/L to the CC by reason of its
loss or any other cause, par. 3, Art. 353 provides that he must give the CC a receipt of the goods
delivered
Effect of return of the B/L or giving of the receipt: The respective obligations and actions of the
parties against each other shall be considered canceled, except where in the same act of return or giving
of a receipt the claims of the parties be reduced to writing subject to the provisions of Art. 366
G. Applicability of Provisions
PAGE 100
The S/S Belle of the Sea took on board in LA, goods for shipment to Manila and covered by B/L No.
105. The S/S Belle of the Sea arrived in Manila and discharged her cargo at the govt. piers under the
supervision and custody of the defendant Manila Terminal Inc. Of the entire shipment, one carton of assorted
samples with a stipulated value of P200 was not delivered to plaintiff Yaras and Co. The latter filed a
complaint with the Municipal Court of Manila against International Harvester, as agent of the S/S Belle of the
Sea and Manila Terminal Inc. The complaint charged that the merchandise was lost through the negligence of
either of the defendants. Before trial could proceed, the International Harvester Inc. (IH) filed a motion to
dismiss on the ground that the court had no jurisdiction. The motion was denied. Prohibition proceedings were
instituted before the CFI of Manila to stop the judge from proceeding with the action. The petition was granted
and the respondents now appeal.
Held : It is clear from the complaint that IH is being held liable only on the assumption that the goods
had been lost in transit or before being discharged at the pier. The liability of IH is predicated on the
contract of carriage by sea between IH and Yaras & Co. as evidenced by the B/L, independently of the
liability of the Manila Terminal Co. as operator of an arrastre service.
Admiralty has jurisdiction over all maritime contracts, in whatever form, wherever they were
executed or are to be performed, but not over non-maritime contracts. Whether or not a contract is
maritime depends not on the place where the contract is made and is to be executed, making the locality
PAGE 101
Augusto Lopez, of Silay, Occidental Negros, wanted to embark on the interisland steamer San Jacinto
bound for Iloilo. The steamer was anchored some half a mile from the shore or port of Silay. In order to board
the steamer, Lopes boarded the motor boat Jison at the landing which was then engaged in conveying
passengers and luggage to and from the steamer. Whether due to negligence or incompetence of Duruelo, the
engineer of Jison aged 16, as alleged, the boat approached too near to the stern of the steamer wherein it was
struck by the still turning propeller of the steamer. The boat sunk and Lopez was thrown into the water against
the propeller wherein he suffered a bruise in the breast, two serious fractures of the bones of the left leg and a
compound fracture of the left femur. As a result, Lopez was hospitalized from February 28 to October 19, 1927
or eight months. Lopez filed a complaint and sought damages amounting to P120,000 alleging that he suffered
injuries due to the negligence and inexperience having only been in its third day of apprenticeship on the day of
the accident. It was also alleged that Jison was overloaded when it carried 14 passengers instead of its capacity
for eight or nine. The defendants assigned in it demurrer that the plaintiff did not show a right of action since
the complaint did not allege that a protest had been presented by the plaintiff within 24 hours after the
occurrence, to the competent authority of the port where the accident occurred as provided under the Code of
Commerce. CFI dismissed the complaint, hence the appeal.
Held : Assuming that article 835 of the Code of Commerce states a condition precedent to the
maintenance of an action in a case requiring protest, such as protest is nevertheless not necessary in the
case at bar. The article is found in the section dealing with collisions and the context shows the
collisions intended are collisions of sea-going vessels. Said article cannot be applied to small boats
engaged in river and bay traffic. The vessels intended in the Third Book of the Code of Commerce
which deals with maritime commerce and in which Art. 865 is found was evidently intended to define the
law relative to merchant vessels and marine shipping, and the vessels intended in that Book are such as
are run by masters having special training with the elaborate apparatus of crew and equipment indicated
in the Code. The word "vessel" used in the section was not intended to include all ships, craft, or
floating structures of every kind without limitation, and the provision of that section should not be held
to include minor craft engaged only in river or bay traffic. Vessels of minor nature, such as river boats
and those carrying passengers from ship to shore are governed as to their liability in passengers, by the
Civil Code.
The word ship and vessel, in their grammatical sense are applied to designate every kind of
craft, large or small, merchant or war, a signification which does not differ essentially from its juridical
meaning according to which vessels for the purpose of the Code of Commerce, are considered not only
PAGE 102
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Art. 574. Builders of vessels may employ the material and follow with regard to their
construction and rigging the systems most suitable to their interest. Ship owners and seamen shall
be subject to the provisions of the laws and regulations of the public administration on navigation,
customs, health, safety of vessels, and other similar matters.
The business of constructing and repairing vessels or parts thereof shall not be considered a public
utility and no CPC shall be required thereof
Art. 585. For all purposes of law not modified or restricted by the provisions of this Code,
vessels shall continue to be considered as personal property.
Vessels are considered personal or movable property; but they partake to a certain extent, of the nature
and conditions of real property, on account of their value and importance in the world of commerce
Art. 712. Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and transmitted by law, by
donation, by testate and intestate succession, and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription. (New Civil Code.)
3. Registration; certificates issued; distinctions
Tariff and Customs Code, Sec. 802
(1) vessels - every sort of boat, craft or other artificial contrivance used, or capable of
being used, as a means of transportation on water
(2) duly registered - person, natural or juridical, registered with the proper govt. agencies,
as Bureau of Commerce, SEC, NACIDA, BOI, Export Incentives Board or Oil Commission, as
now or may hereafter be required by law.
PD 761 as amended by PD 1064, 1521
Sec. 806. Upon registration of a vessel of domestic ownership, and of more than 15 tons
gross, a certificate of Philippine registry shall be issued for it. If the vessel is of domestic
ownership and of 15 tons gross or less, the taking of the certificate of Philippine registry shall be
optional with the owner.
Domestic ownership means ownership vested in the citizens of the Philippines or
corporations or association organized under the laws of the Philippines at least 60% of the C/S or
capital of which is wholly owned by citizens of the Philippines, and in the case of corporations or
associations which will engage in coastwise trade the president and managing directors thereof
shall be such citizens xxx
xxx an enterprise duly registered with the Board of Investments WON entirely owned by
foreign nationals, may register its own vessels xxx if such vessels are to be used exclusively to
transport its own raw materials and finished products in Philippine waters as an incident to its
manufacturing, processing or business activity registered with the BOI and certified to by said
Board as an essential element in the operation of the registered project.
Rule III, Marina Rules and Regulations:
PAGE 104
Subjects of Registration:
1) All vessels used in Phil. waters, not being transients of foreign registry, shall be
registered with the MARINA. To this end, it shall be the duty of the master, owner and agent of
every such vessel to make application to the proper MARINA district office for registration thereof
within 15 days after the vessel becomes subject to such registration.
2) A vessel of 3 tons gross or less shall not be registered unless the owner shall so desire,
nor shall documents licenses of any kind be required for such vessel, but the proper fee shall be
charged for measurement when measurement is necessary, except when the same is engaged in
towing or carrying of articles and passengers for hire.
3) All undocumented vessels shall be numbered in such form as may be prescribed by the
Administrator.
PAGE 105
F:
The appeal of Yu relates to the preferences to the ten lorchas as between herself and the PNB. Among
the facts found by the trial judge is that they were owned by Lim Ponzo Navigation Co. They were mortgaged
to Po Pauco to guarantee a loan of P20,000. This was duly registered with the register of deeds. Po Pauco later
mortgaged them in favor of PNB and registered with the register of deeds but was recorded in the Office of
Collector of Customs much later. Meanwhile, Yu secured a judgment against Lim Ponzo Navigation Co. The
notice of seizure was recorded by the collector of customs of Iloilo on which date the records of the office
disclosed the vessels as free from encumbrances.
HELD : Sec. 1171 of AC has modified the provisions of the Chattel Mortgage Law, particularly Sec. 4
thereof. It is now not necessary for a chattel mortgage of a vessel to be noted in the register of deeds.
But it is essential that a record of documents affecting the title of a vessel be entered in the office of the
collector of customs at a port of entry. This is designed to protect persons who deal with a vessel on the
strength of the record title. Mortgages on vessels., although not recorded, are good as between the
parties. But as against creditors of the mortgagor, an unrecorded mortgage is valid.
However, we find an explanation of the delay of registration with the collector of customsbecause of doubts entertained by the latter relative to the applicability of Act No. 3324 to a mortgage
executed in 1918 in favor of a Chinese subject. This uncontradicted fact must be taken as curing the
bank's defective title. That the collector did not perform his duty was no fault of PNB.
Judgment affirmed in part in the sense that as between Yu and PNB, the latter has a superior
right to its claim for P20,000, and set aside in part in the sense that the record is remanded for further
proceedings.
Rubiso vs Rivera 37 Phil 72
F:
Defendant Rivera acquired by purchase the pilot boat Valentina on a date prior to that of the purchase
and adjudication at public auction by plaintiff Rubiso. But the sale at public auction to Rubiso was recorded in
the office of the collector of customs on Jan. 27, 1915 and in the commercial registry on March 4, 1915, while
the sale to Rivera was entered in the customs registry only on March 17, 1915. Lower court decided for
plaintiff. Defendant appealed.
HELD : The requisite of registration in the registry of the purchase of a vessel is necessary and
indispensable in order that the purchaser's rights may be maintained against a claim filed by a third
person. Such registration is required both Art. 573 of the Code of Commerce in connection with Sec 2
of Act No. 1900 which Act amended said article. The amendments solely consisted in charging the
Insular Collector of Customs, as at present, with the fulfillment of the duties of the commercial register
concerning the registering of vessels, so that the registration of a bill of sale of a vessel shall be made in
the Insular Collector of Customs, who, since May 18, 1909, has been performing the duties of the
commercial registry in place of this latter official. In view of said legal provisions, it is undeniable that
defendant's rights cannot prevail over those acquired by plaintiff in the ownership of said boat, in as
much as defendant's registration came after plaintiff's registration.
C. Persons Participating in Maritime Commerce
1. Shipowners and shipagents
Art. 586. The owner of a vessel and ship agent shall be civilly liable for the acts of the
captain and for the obligations contracted by the latter to repair, equip, and provision the vessel,
provided the creditors proves that the amount claimed was invested therein.
By agent is understood the person entrusted with the provisioning of a vessel, or who
represents her in the port in which she happens to be.
PAGE 106
Art. 587. The ship agent shall also be civilly liable for the indemnities in favor of third
persons which arise from the conduct of the captain in the care of the goods which the vessel
carried; but he may exempt himself therefrom by abandoning the vessel with all her equipments
and the freightage he may have earned during the voyage.
Art. 588. Neither the owner of the vessel nor the agent shall be liable for the obligations
contracted by the captain if the latter exceeds his powers and privileges inherent in his position or
those which may have been conferred upon him by the former.
However, if the amounts claimed were made use of for the benefit of the vessel, the owner
or agent shall be liable.
Liability of shipowner and shipagent :
(1) under Art. 857, for the acts of the captain
(2) for contracts entered into by the captain to repair, equip and provision the vessel, provided
that the amount claimed was invested for the benefit of the vessel
(3) for the indemnities in favor of third persons which may arise from the conduct of the captain
in the care of the goods transported, as well as for the safety of passengers transported
(4) for damages to third persons for tort or quasi-delict committed by the captain, except
collision with another vessel
(5) under Art. 826, for damages in case of collision due to the fault, negligence, or want of skill
of the captain, sailing mate, or any other member of the complement
The agent is liable to the shippers and owners of the cargo transported by it, for losses and
damages occasioned to such cargo without prejudice to his rights against the owner of the ship, to the
extent of the value of the vessel, its equipment and the freight
Under 588, the shipowner and the shipagent are not liable for the obligations contracted by the captain
if he exceeds his authority, unless the amounts claimed were invested for the benefit of the vessel -->
however under Art. 1759, NCC, the ship owner is liable for the death of or injuries to the passengers
which are caused by the negligence or wilful acts of his EEs although such EEs may have acted beyond
the scope of their authority or in violation of the orders of the shipowner
Art. 589. If two or more persons should be part owners of a merchant vessel, an
association shall be presumed as established by the part owners.
This association shall be governed by the resolutions of a majority of the members.
A majority shall be the relative majority of the voting members.
If there should be only two part owners, in case of disagreement the vote of the member
having the largest interest shall be decisive. If the interests are equal, it shall be decided by lot.
The representation of the smallest part in the ownership shall have one vote; and
proportionately the other part owners as many votes as they have parts equal to the smallest one.
A vessel cannot be detained, attached or levied upon execution in her entirety for the
private debts of a part owner, but the proceedings shall be limited to the interest the debtor may
have in the vessel, without interfering with her navigation.
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Art. 606. If the captain should be a part owner in the vessel, he may not be discharged
unless the agent returns to him the amount of his interest therein, which, in the absence of an
agreement between the parties, shall be appraised by experts appointed in the manner established
in the law of civil procedure.
Art. 607. If the captain who is a part owners should have obtained the command of the
vessel by virtue of a special agreement contained in the articles of copartnership, he cannot be
deprived thereof except for the reasons mentioned in Article 605.
Art. 608. In case of the voluntary sale of the vessel, all contracts between the agent and
captain shall terminate, reserving to the latter his right to the indemnity which may be proper,
according to the agreements made with the agent.
The vessel sold shall remain subject to the security of the payment of said indemnity if,
after the action against the vendor has been instituted, the latter should be insolvent.
Art. 618. The captain shall be civilly liable to the ship agent and the latter to the third
persons who may have made contracts with the former 1. For all the damages suffered by the vessel and its cargo by reason of want of skill or
negligence on his part. If a misdemeanor or crime has been committed he shall be liable in
accordance with the Penal Code.
2. For all the thefts and robberies committed by the crew, reserving his right of action
against the guilty parties.
3. For the losses, fines, and confiscations imposed on account of violation of the laws and
regulations of customs, police, health, and navigation.
4. For the losses and damages caused by mutinies on board the vessel, or by reason of
faults committed by the crew in the service and defense of the same, if he does not prove that he
made full use of his authority to prevent or avoid them.
5. For those arising by reason of a misuse of powers and nonfulfillment of the duties which
pertain to him in accordance with Articles 610 and 612.
6. For those arising by reason of his going out of his course or taking a course which, in
the opinion of the officers of the vessel, at a meeting attended by the shippers or supercargoes who
may be on board, he should not have taken without sufficient cause.
No exception whatsoever shall exempt him from his obligation.
7. For those arising by reason of his voluntarily entering a port other than his destination,
with the exception of the cases or without the formalities referred to in Article 612.
8. For those
arising by reason of the nonobservance of the provisions contained in the regulations for lights and
maneuvers for the purpose of preventing collisions.
Art. 618 provides for the direct responsibility of the shipowner and shipagent to third persons; the
captain shall be civilly liable to the ship agent and the latter is the one liable to third persons
This
article applies to breaches of contract and tortious negligence of the captain
But where the vessel is totally chartered for use of a single party, the shipowner and that party
may validly stipulate that the latter shall be exempt from liability for the negligence of the captain and
crew
Reason for imposition of liability on owner for damages suffered by third persons occasioned by
the acts of the captain: To place the primary liability upon the person who has actual control over the
PAGE 110
Castelo, owner of the interisland steamer Batangueno, contracted with Chumbuque stipulating that for
a term of one year, the latter shall use it in conveying cargo; that the crew should be supplied by the owner; and
that the charterer should have no control over the captain and crew than to specify the voyages. Plaintiff
delivered petroleum which was placed on deck. While the steamer was on her way, a typhoon came,
compelling the captain to jettison the petroleum. When the storm abated, the ship made port and 13 cases of
petroleum were recovered, but the remainder was wholly lost. Plaintiff brought action to recover the petroleum
value against the shipowner. CFI rendered judgment for plaintiff.
Held : Ordinarily, the loss of cargo carried on deck shall not be considered as general average loss, as
expressed in the York- Antwerp Rules. This rule, first made during the days of sailing vessels has
changed and it is now generally held that jettisoned goods carried on deck, according to the customs of
trade, by steam vessels navigating coastwise and inland waters, are entitled to contribution as general
average loss. The reason for this, in coastwise trade, is that boats are small and voyages are short, with
the result that the coasting vessel can use more circumspection about the condition of the weather at
departure time. It is evident therefore, that the loss of the petroleum is a general average with the result
that plaintiff is entitled to recover an amount bearing such proportion to its total loss as the value of
both ship and cargo bears to the value of ship and entire cargo before jettison was effected.
It is universally recognized that the captain is the representative of the owner and both under
Art. 586 of the Code of Commerce, are civilly liable for the acts of the master. When jettison of cargo
occurs, it is the duty of the captain to effect the adjustment, liquidating and distribution of the general
average; his failure gave rise to liability for which the owner of the ship must answer.
The owner of the ship ordinarily has vastly more capital embarked upon a voyage than has any
shipper of cargo. Moreover, the shipowner, in captain's person, has complete and exclusive control of
the crew and ship navigation. It is therefore proper that any person whose property may have been cast
should have a right of action directly against the shipowner for breach of duty which the law imposed on
the captain with respect to such cargo. The evident intention of the Com. Code is to place primary
liability upon the person who has actual control over the conduct of the voyage and who has most
capital in the venture, namely, the shipowner, leaving him to obtain recourse, as it is very easy to do,
from other individuals who have been drawn into the venture as shippers. Defendant is therefore liable.
PAGE 111
Yu delivered to Ipil and Solamo P 450 for delivery from Catmon to Cebu aboard a banca named Maria
of which Lauron was the owner and Ipil and Solamo, the master and supercargo, respectively. The money
together with various merchandise belonging to plaintiff was to be carried from the port of Cebu to Catmon in
Cebu. The money was placed by Yu in his trunk and was transferred to that of Ipil. That night, the window of
the stateroom in which the trunk containing the money was kept was broken through by persons not identified
and through which the said trunk was stolen. It was found at the trial that Ipil and Solamo were negligent in
guarding the money because they were sound asleep at the time of the theft and they assigned no one to stand
guard during the night. Their defense was that Yu chartered and had control and responsibility of the banca
and that the theft was due to Yu's negligence. The CFI held Ipil and Solamo negligent and held Lauron liable
as ER and shipowner under Articles 586, 587 and 618 of the Code of Commerce.
Held : Ipil and Solamo, as carriers and depositories of the money were liable under the Civil Code, the
theft not being a fortuitous event or of force majeure and they being manifestly negligent and at fault.
As to the liability of Lauron, the SC proceeded by first defining the banca "Maria" as within the
meaning of the term "vessel." Thus, according to the foregoing definitions (by the Mercantile Code, by
Reus in Commentaries on the Code of Commerce, and by Blanco) we hold that the banca "Maria"
chartered by Yu Con from Lauron, was a "vessel" under Mercantile Law and the Code of Commerce.
Ipil, the master of the banca, was also held to be the captain (masters are to small vessels as captains
are to big ones). Under Arts. 587 and 618, the shipowner shall be civilly liable to third persons when the
captain of the vessel causes the damage or loss to goods entrusted to him by said third persons under a
contract to carry said goods. Thus, it is well and god that the shipowner be not held criminally liable for
such crimes or quasi crimes but he cannot be excused from liability for the damage and harm which in
consequence of those acts may be suffered by the third parties who contracted with the captain in his
double capacity of agent and subordinate of the shipowner himself. In maritime commerce, the shippers
and passengers in making contracts with the captain do so through the confidence they have in the
shipowner who appointed him.
The owner of a minor craft who has equipped and victualed it for the purpose of using it in the
transportation of merchandise from one port to another is under the law a shipowner and the master of
the craft is to be considered as its captain in the legal acceptation of this word, and the former must be
held civilly liable for indemnities in favor of third parties to which the conduct of the master/captain
may give rise in the custody of the effects laden on the craft, and for all losses which, through his fault
or negligence, may occur to the merchandise or effects delivered to him for their transportation as well
as for the damages suffered by those who contracted with him, in consequence of misdemeanors and
crimes committed by him or by the members of the crew of the craft.
Manila Steamship vs Abdulhaman 100 Phil 32
F:
At around 7 p.m., M/L Consuelo V, owned by Lim Hong To, laden with cargoes and passengers left
Zamboanga City bound for Siokon under the command of Faustino Macrohon. Among her passengers were
plaintiff Insa Abdulhaman, his wife, and their 5 kids. On the same night, the M/S Bowline Knot owned by the
Manila Steamship Co. were navigating from Maribojoc towards Zamboanga City. The weather then was
considered fair.
PAGE 112
Held : (1) While it is true that plaintiff's action against petitioner is based on a tort or quasi-delict, the
tort in question is not a civil tort under the Civil Code but is a maritime tort resulting in a collision at
sea, governed by Arts. 826-939 of the Code of Commerce, while the owners of both colliding vessels are
solidarily liable for damages caused. This direct responsibility is recognized in Art. 618 of the Code of
Commerce, under which the captain shall be civilly liable to the ship agent, and the latter is the one
liable to third persons.
In fact it is a general principle well established in the maritime law and custom, that shipowners
and shipagents are civilly liable for the acts of the captain (Art. 586) and for the indemnities due to the
third persons (Art. 587). This direct liability moderated and limited by the owner's right of abandonment
of the vessel and earned freight (Art. 587) has been declared to exist not only in the case of breached
contracts but also in cases of tortious negligence.
It is easy to see that to admit the defense of the diligence of a bonus pater familias in the
selection and vigilance of the officers and crew as exempting the shipowner from any liability for their
faults, would render nugatory the solidary liability in Art. 827 for the greater protection of injured
parties.
(2) It is to be noted that Macrohon was not duly licensed as a shipmaster and Lim knew of this
fact when it hired the former, thus deliberately increasing the risk to which the unknowing passengers
would be subjected. The liability of Lim, cannot, therefore be identical to that of a shipowner who bears
in mind the safety of the passengers by employing duly licensed officers. To hold, as the CA had done,
that Lim may limit his liability to the value of his vessels, is to erase all differences between compliance
with law and the deliberate disregard thereof.
The international rule is to the effect that the right of abandonment of vessels, as a legal
limitation of a shipowner's liability, does not apply to cases where the injury of the average is due to
shipowner's own fault.
(b) The doctrine of limited liability
* Doctrine of limited liability is provided for in Arts. 587, 590 and 837
Art. 587. The ship agent shall also be civilly liable for the indemnities in favor of third
persons which arise from the conduct of the captain in the care of the goods which the vessel
carried; but he may exempt himself therefrom by abandoning the vessel with all her equipments
and the freightage he may have earned during the voyage.
A shipagent is liable notwithstanding the insolvency of the principal/owner
BUT the ship agent may exempt himself from liability by abandoning the vessel with all her equipment
and the freight it may have earned during the voyage --> the effect of abandonment is to extinguish the
liability of the shipagent
The ship agent's liability is confined to that which he is entitled as a matter of right to abandon :
the vessel with all her eqpt. and the freight it may have earned during the voyage and to the insurance
thereof
Limited liability is not applicable when no abandonment of vessel is made
PAGE 113
PAGE 114
Petitioner Yangco's vessel SS Negros left Romblon for Manila. The captain was duly advised and his
attention was called by the passengers that typhoon Signal No. 2 was up. But the boat proceeded to sail after
some loading. The boat was overloaded with cargo and passengers (180 instead of only 123). After two weeks
of sailing, the sea became too dangerous. The captain ordered that they return to Romblon and while turning, a
big wave caught them on the side causing it to capsize. Among the passengers who perished were the relatives
of respondents Laserna.
In the separate civil action for damages for the death of the passengers, the CFI held Yangco liable for
a total of P3,180. After the rendition of the judgment, Yangco sought to abandon the vessel to
plaintiffs/respondents with all its equipments. Abandonment was denied. The CA affirmed the judgment.
Held : Art. 587 accords a shipowner or agent the right of abandonment; and by necessary implication,
his liability is confined to that which he is entitled as of right to abandon -- the vessel with all her
equipments and the freight it may have earned during the voyage. In other words, such liability is
limited to the value of the vessel and other things appertaining thereto such that a total loss thereof
results in its extinction. Although the article appears to deal only with the limited liability of shipowners
or agents for damages arising from the misconduct of the captain in the care of the goods which the
vessel carries, this is a mere deficiency of language and in no way indicates the true extent of such
liability, to wit, the benefit of limited liability applies in all cases (as regards both goods and passengers
of the vessel) wherein the shipowner or agent may properly be held for the negligent or illicit acts of the
captain.
The reason for the limited liability is the real and hypothecary nature of maritime law as
distinguished from civil law and mercantile law in general. As evidence of this real nature, we have (1)
the limitation of the liability of the agents to the actual value of the vessel and the freight money and (2)
the right of the maritime creditor to retain the cargo, and the embargo and detention of the vessel in
cases where the ordinary civil law would not allow more than a personal action against the debtor or
person liable. Thus, even assuming that Yangco is liable for breach of contract because his relationship
to the passengers rests on a contract of carriage, the exclusively real and hypothecary nature of
maritime law still operates to limit his liability to the value of the vessel or to the insurance thereon, if
any. In this case, the vessel was not insured. Whether the abandonment of the vessel sought by the
petitioner in instant case was in accordance with law or not, is immaterial. The vessel having totally
perished, any act of abandonment would be an idle ceremony. Petitioner is absolved from all
complaints.
Abueg vs San Diego 77 Phil 730
F:
Bartolome San Diego was the owner of 2 motorships, San Diego II and Bartolome S. Dionisia Abueg
is the widow of Amado Nunez, who was a machinist on board the M/S San Diego II. Marciana de Salvacion is
the widow of Victoriano Salvacion, who was a machinist on board the M/S Bartolome S. Rosario Oching is
the widow of Francisco Oching, who was the captain of the M/S Bartolome S. The 2 ships, while engaged in
fishing operations around Mindoro Island on October 1941, were caught by a typhoon as a consequence of
which they were sunk and totally lost. Nunez, Salvacion and Oching while acting in their capacities perished
in the shipwreck. The vessels were not covered by any insurance. The widows were awarded compensation
under the Workmen's Compensation Act by the CFI.
PAGE 115
M/V Mindoro owned by Compania Maritima sailed from Manila bound for New Washington, Aklan.
Said vessel met typhoon Welming on the Sibuyan Sea, causing the death of many of its passengers, although
about 136 survived. Mauricio de los Santos declared that he, his wife and 4 children were aboard the boat
together with their household utensils valued at P 1,000, with the intention of living in Aklan permanently. His
wife and his children were among the casualties. The Board of Marine Inquiry found that the captain and some
officers of the crew were negligent in operating the vessel and imposed upon them a suspension and/or
revocation of their license certificates. This decision could not be executed against the captain who perished
with the vessel. The shipowner alleged that no negligence was ever established and in fact they took all the
necessary precautions in operating the vessel. Furthermore, the loss of lives as a result of the drowning of some
passengers, including the relatives of the plaintiffs, was due to force majeure because of the strong typhoon
Welming. It also presented the findings of the Board of Marine Inquiry recommending that the captain be
exonerated and that the ship was in seaworthy condition. The CFI dismissed the complaint in view of lack of
sufficient evidence. The CA ruled that while concurring negligence on the part of the captain is imputable to
Maritima, Maritima could not be held liable in damages based on the principle of limited liability of the
shipowner or shipagent under Art. 587 of the Code of Commerce.
Held : There is no dispute as to the finding of the captain's negligence. The present controversy centers
on the questions of Maritima's negligence and of the application of Art. 587 of the Code of Commerce.
Under this provision, a shipowner or agent has the right of abandonment; and by necessary implication,
his liability is confined to that which he is entitled as of right to abandon -- the vessel with all her
equipments and the freight it may have earned during the voyage. This rule is found necessary to offset
against the innumerable hazards and perils of a sea voyage and to encourage shipbuilding and marine
commerce. The limited liability doctrine applies not only to the goods but also in all cases like death or
injury to passengers wherein the shipowner of agent may properly be held liable for the negligent or
illicit acts of the captain. Art. 587 speaks only of situations where the fault or negligence is committed
solely by the captain. In cases where the shipowner is likewise to be blamed, Art. 587 does not apply.
Such a situation will be covered by the Civil Code provisions on CCs. Owing to the nature of their
business and for reasons of public policy, they are required to observe EO diligence.
Maritima's claim that it had no information of typhoon Welming until after the boat was at sea
is untenable in light of modern technology which enables it to detect any incoming atmospheric
disturbances. In fact, the Weather Bureau issued a total of 17 warnings or advisories of typhoon
Welming. In allowing the ship to depart late from Manila despite the typhoon advisories, Maritima
PAGE 116
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Art. 601. Should there be any profits, the co- owners may demand of the managing agent
the amount due them, by means of an executory action without further requisite than the
acknowledgment of the signatures in the instrument approving the account.
2. Captains and Masters
(a) Qualifications and licensing
RA 5173
Sec. 3. The Philippine Coast Guard shall perform the following functions : (e) to issue
licenses and certificates to officers, pilots, major and minor patrons and seamen, as well as suspend
and revoke such licenses and certificates.
Art. 609. Captains and masters of vessels must be Filipinos having legal capacity to bind
themselves in accordance with this Code, and must prove that they have the skill, capacity, and
qualifications required to command and direct the vessel, as established by marine laws, ordinances,
or regulations, or by those of navigation, and that they are not disqualified according to the same for
the discharge of the duties of that position.
If the owner of a vessel desires to be the captain thereof and does not have the legal
qualifications therefore, he shall limit himself to the financial administration of the vessel, and shall
entrust her navigation to the person possessing the qualifications required by said ordinances and
regulations.
notes:
- Captain - one who governs vessels that navigate the high seas or ships of large dimensions and
importance, although they may be engaged in coastwise trade
- Master - one who commands smaller ships engaged exclusively in coastwise trade
- captain and master have the same meaning for maritime commerce
- patron - bancas
- Roles of the captain :
(1) general agent of the shipowner
(2) technical director of the vessels
(3) represents the government of the country under whose flag he navigates
(b) Inherent Powers
Art. 610. The following powers are inherent in the position of captain or master of a vessel:
1. To appoint or make contracts with the crew in the absence of the ship agent and propose
said crew, should said agent be present; but the agent may not employ any member against the
captain's express refusal.
PAGE 118
notes: The first three powers cannot be renounced as they relate to public order and are vested in the
captain as a delegation of public authority
Art. 611. In order to comply with the obligations mentioned in the foregoing article, and
when he has no funds and does not expect to receive any from the agent, the captain shall procure
the same in the successive order stated below:
1. By requesting said funds of the consignees of the vessel or the correspondents of the ship
agent.
2. By applying to the consignees of the cargo or to the persons interested therein.
3. By drawing on the ship agent.
4. By borrowing the amount required by means of a bottomry loan.
5. By selling a sufficient amount of the cargo to cover the amount absolutely necessary to
repair the vessel and to equip her to pursue the voyage.
In the two last cases he must apply to the judicial authority of the port, if in the Philippines
and to the Filipino consul, if in a foreign country; and where there should be none, to the local
authority, proceeding in accordance with the prescriptions of Article 583, and with the provisions of
the law of civil procedure.
Art. 583. If while on a voyage the captain should find it necessary to contract
one or more of the obligations mentioned in subdivisions 8 and 9 of articl 580, he shall
apply to the judge or court if he is in the Philippine territory, and otherwise to the consul
of the Republic of the Philippines, should there be one, and in his absence, to the judge
or court or proper local authority, presenting the certificate of the registration sheet
treated of in Article 612 and the instruments proving the obligation contracted.
The judge or court, the consul, or the local authority, as the case may be, in view
of the result of the proceedings institutied, shall make a temporary memorandum of their
result in the certificate, in order that it may be recorded in the registry when the vessel
returns to the port of its registry, or so that it can be admitted as a legal and preferred
obligation in case of sale before its return, by reason of the sale of the vessel on account
of a declaration of unseaworthiness.
The omission of this formality shall make the captain personally liable for the
credits prejudiced on his account.
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PAGE 121
1. Captain Rizalino Tayong was employed by petitioner shipwoners as master of a vessel for one year.
His instructions were to replenish bunker and diesel fuel and to sail to South Africa , and there to load 120,000
metric tons of coal.
2. While in HK, a storm hit, and precautionary measures were taken since the vessel was 14 years old and the
turbo-charger was leaking. The Captain requisitioned for supplies of oxygen and acetylene necessary for the
repairs. The vessel sailed from HK to Singapore.
3. While in Singapore, the supplies were not available, hence after consultation with the Chied Engineer, the
Captain decided to delay departure and wait for the supplies.
PAGE 122
4. After the supplies were delivered, the vessel sailed for South Africa, where upon arrival, the Captain was
instructed to turn over his post to a new captain. He was then repatriated to the Philippines.
5. Captain Tayong filed with the POEA a complaint for illegal dismissal, which was dismissed.
6. On appeal, the NLRC reversed and ordered the shipowner to pay his salary for the unexpired contract plus one
month leave benefit, and attorney's fees. Hence, this appeal.
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6. Desertion.
The captain may, however, before setting out on a voyage and without giving any reason
whatsoever, refuse to permit a sailor whom he may have engaged to go on board, and may leave him on
land, in which case his wages have to be paid as if he had rendered services.
The indemnity shall be paid from the funds of the vessel if the captain should have acted for
reasons of prudence and in the interest of the safety and good service of the vessel. Should this not be the
case, it shall be paid by the captain personally.
After the voyage has begun, and during the same and until the conclusion thereof, the captain
may not abandon any member of his crew on land or on the sea, unless, as the accused of a crime, his
imprisonment and delivery to the competent authority in the first port touched should be proper, which
shall be obligatory to the captain.
Art. 638. If, after the crew has been engaged, the voyage is revoked by the will of the ship
agent or of the charterers, before or after the vessel has put to sea, or if the vessel is for the same
reason given a different destination from that fixed in the agreement with the crew, the latter shall be
indemnified on account of the rescission of the contract, according to the following cases:
1. If the revocation of the voyage should be decided before departure of the vessel from the
port, each sailor engaged shall be given one month's salary, besides what may be due him, in
accordance with his contract, for the services rendered to the vessel up to the date of the revocation.
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Art. 647. The officers and the crew of the vessel shall be exempted from all obligations
contracted, if they deem if proper, in the following cases;
1. If, before the beginning of the voyage, the captain attempts to change it, or there occurs a
naval war with the power to which the vessel was destined.
2. If a disease should break out and be officially declared epidemic in the port of
destination.
3. If the vessel should change owner or captain.
4. Supercargoes
Art. 649. Supercargoes shall discharge on board the vessel the administrative duties which
the agent or shippers may have assigned them; they shall keep an account and record of their
transactions in a book which shall have the same conditions and requisites as required for the
accounting book of the captain, and shall respect the latter in his duties as chief of the vessel.
The powers and liabilities of the captain shall cease, when there is a supercargo, with regard
to that part of the administration legitimately conferred upon the latter, but shall continue in force
for all acts which are inseparable from his authority and office.
Supercargo: An agent of the owner of the goods shipped as cargo on a vessel, who has charge of the
cargo on board, sells the same to the best advantage in the foreign markets, buys cargo to be brought back
on the return voyage of the ship, and comes home with it
Art. 650. All the provisions contained in the second section of Title III, Book II, with regard
to qualifications, manner of making contracts, and liabilities of factors shall be applicable to
supercargoes.
Now governed by the provisions on agency
Art. 651. Supercargoes cannot, without special authorization or agreement, make any
transaction for their own account during the voyage, with the exception of the ventures which, in
accordance with the custom of the port of destination, they are permitted to do.
Neither shall they be permitted to invest in the return trip more than the profits from the
ventures, unless there is a special authorization therefor from the principals.
D. Accidents and Damages in Maritime Commerce
RISKS, DAMAGES, AND ACCIDENTS OF MARITIME COMMERCE
1. Averages
(a) Nature and Kinds
Art. 806. For the purposes of this Code the following shall be considered averages:
1. All extraordinary or accidental expenses which may be incurred during the voyage for
the preservation of the vessel or cargo, or both.
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Plaintiff's vessel SS Antonio left for Manila for Basco, Batanes with general cargo owned by the
different shippers including that of the defendant. Upon reaching Aparri, it accidentally ran aground. Plaintiff
had it refloated by Luzteveco for compensation. After refueling, the vessel proceeded to Basco where the
cargoes were delivered. On the theory that the expenses incurred in floating the vessel constituted a general
average to which both the ship and cargo should contribute, plaintiff asked from the shippers a deposit or bond
to answer for contribution to the average. All shippers acceded except the defendant. In action to recover said
contribution, the Manila CFI decided for the plaintiff. Defendant appealed contending that the floating of a
vessel, unintentionally stranded inside a port and at the mouth of a river during a fine weather, does not
constitute general average expenses.
Held: In classifying averages into simple or particular and general or gross and defining each class, the
Code of Commerce at the same time enumerate certain specific cases as coming specially under one or
the other class. While the expenses incurred in putting the vessel afloat may well come under No. 2 of
Art. 809 - referring to expenses suffered by the vessel due to an accident of the sea or force majeuresaid expenses do not fit into any of the specific cases of general average enumerated in ART. 811. No. 6
of Art. 811 mentions expenses caused to afloat a vessel, but it specifically refers to a vessel intentionally
stranded for the purpose of saving it, and would have no application where the stranding was
unintentional.
PAGE 133
In the spring of 1917, defendant undertook to carry agricultural machineries, belonging to the
plaintiff, from Hamburg to Vladivostok, Russia. Freight charges were prepaid to ultimate destination and
defendant reserved the right to forward the machineries at its own expense by some other means in case of its
inability to effect discharge at the port of destination. When the voyage was almost completed at the China Sea,
war broke out between Germany and Russia, and the ship put in to the port of Manila, where it was interned.
Captain of the vessel refused to surrender the machineries to the owner's agent unless the latter would agree to
subject said cargo to liability upon general average to satisfy the cost and expenses of the vessel incident to its
stay in Manila. Plaintiff did not assent and brought an action for recovery of the machineries plus damages.
The plaintiff later obtained said cargo by a writ of replevin and forwarded it to Vladivostok by another streamer.
Defendant denied liability asserting its lien on the cargo for general average. Trial court awarded the plaintiff
damages. Defendant appealed.
Held: It is clear that the cargo in question is not liable to a general average. It is not claimed that said
cargo was contraband of war and being neutral goods, they were not liable to forfeiture in the event of
capture by the enemies of the ship's flag. It follows that when the master of the vessel decided to take
refuge in Manila, he acted exclusively with a view to the vessel's protection. There was no common
danger to the ship and cargo; and, therefore, it was not a case for a general average.
The outbreak of the war between Germany and Russia absolved the defendant from conveying
the cargo to Russia, and no damage could be recovered by the plaintiff from the defendant for the latter's
failure to convey the cargo to the port of destination on that ship. But by the terms of the contract of
affreightment, the defendant was bound to forward the cargo to Vladivostok at its expense, not
necessarily by a streamer of defendant. It does not by any means follow that it is not liable for the
expenses incurred by the plaintiff in completing the unfinished portion of the voyage in another ship.
Defendant is, therefore, liable for the cost of forwarding the cargo by another line, the full freight having
been received by the ship at the commencement of the voyage.
Judgment affirmed.
Compagnie de Commerce vs Hamburg 36 Phil 590
F:
In July 1914, defendant's vessel undertook to carry a cargo of rice meal in the French port of Saigon
for delivery to Dunkirk under a contract of affreightment with a French shipper. While the loading of the cargo
PAGE 134
Held: The danger from which the master of the vessel fled was a real and not merely an imaginary one.
Seizure at the hands of the enemy, though not inevitable, was a possible outcome of a failure to leave the
port of Saigon; and it cannot be said that under the conditions existing at the time when the master
elected to flee from that port, there were no grounds for a reasonable apprehension of danger from
seizure by French authorities, and therefore no necessity for flight. The deviation of the vessel
therefore, from the route prescribed in her charter party, and the subsequent abandonment by the master
of the voyage contemplated in the contract of affreightment, must be held to have been justified by the
necessity under which the master was placed to elect that course which would remove and preserve the
vessel from danger of seizure by the public enemy of the flag which the vessel sailed; and that neither
the vessel nor her owners are liable for the resultant damages suffered by the owner of the cargo.
The claim for general average by the shipowner, however, cannot be sustained under the
provisions of the York-Antwerp Rules. An examination of the entire body of these rules discloses that
general average is never allowed thereunder unless the loss or damage sought to be made good as
general average has been incurred for the `common safety'. It is very clear that in fleeing from the port
of Saigon and taking refuge in Manila, the master of the vessel was not acting for the common safety of
the vessel and her cargo. The French cargo was absolutely secure from danger of seizure or
confiscation so long as it remained in the port of Saigon, and there can be no question that the flight of
the vessel was a measure of precaution adopted solely and exclusively for the preservation of the vessel
from danger of seizure or capture. Delivery of the net proceeds of the sale to plaintiff should be
affirmed, but recovery of damages by plaintiff should be reversed. Defendant cannot claim for general
average.
Judgment modified.
(c) Effects
Art. 812. In order to satisfy the amount of the gross or general averages, all the persons
having an interest in the vessel and cargo therein at the time of the occurrence of the average shall
contribute.
(d) Jettison
Art. 815. The captain shall direct the jettison, and shall order the goods cast overboard in
the following order:
1. Those which are on deck, beginning with those which embarrass the maneuver or
damage the vessel, preferring, if possible, the heaviest ones with the least utility and value.
2. Those which are below the upper deck, always beginning with those of the greatest
weight and smallest value, to the amount and number absolutely indispensable.
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Art. 869. The experts whom the court or the persons interested may appoint, as the case
may be, shall proceed with the examination and appraisement of the averages in the manner
prescribed in Articles 853 and 854, Rules 2 to 7, in so far as they are applicable.
2. Arrivals Under Stress
(a) Causes
Art. 819. If during the voyage the captain should believe that the vessel cannot continue
the trip to the port of destination on account of the lack of provisions, well-founded fear of seizure,
privateers, or pirates, or by reason of any accident of the sea disabling it to navigate, he shall
assemble the officers and shall summon the persons interested in the cargo who may be present,
and who may attend the meeting without the right to vote; and if, after examining the
circumstances of the case, the reason should be considered well-founded, the arrival at the nearest
and most convenient port shall be agreed upon, drafting and entering the proper minutes, which
shall be signed by all, in the log book.
The captain shall have the deciding vote, and the persons interested in the cargo may make
the objections and protests they may deem proper, which shall be entered in the minutes in order
that they may make use thereof in the manner they may consider advisable.
Art. 820. An arrival shall not be considered lawful in the following cases:
1. If the lack of provisions should arise from the failure to take the necessary provisions
for the voyage according to usage and custom, or if they should have been rendered useless or lost
through bad stowage or negligence in their care.
2. If the risk of enemies, privateers, or pirates should not have been well known, manifest,
and based on positive and provable facts.
3. If the defector the vessel should have arisen from the fact that it was not repaired,
rigged, equipped, and prepared in a manner suitable for the voyage, or from some erroneous order
of the captain.
4. Whenever malice, negligence, want of foresight, or lack of skill on the part of the
captain exists in the act causing the damage.
Arrival under stress: Arrival of a vessel at the nearest and most convenient port, if during the voyage
the vessel cannot continue the trip to the port of destination due to : (1) lack of provisions, (2) wellfounded fear of seizure, privateers, or pirates, (3) by reason of any accident of the sea disabling it to
navigate
(b) Formalities
Art. 819. If during the voyage the captain should believe that the vessel cannot continue
the trip to the port of destination on account of the lack of provisions, well-founded fear of seizure,
privateers, or pirates, or by reason of any accident of the sea disabling it to navigate, he shall
assemble the officers and shall summon the persons interested in the cargo who may be present,
and who may attend the meeting without the right to vote; and if, after examining the
circumstances of the case, the reason should be considered well-founded, the arrival at the nearest
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Shipwreck-- means a ship which has received injuries rendering her incapable by navigation; loss of a
vessel at sea, either by being swallowed up by the waves, running against a thing at sea, or on the coast
Derelict.-- A ship or her cargo which is abandoned and deserted at sea by those who are in charge of it,
without any hope of recovering it, or without any intention of returning it --> if those in charge of the
property left it with the intention of finally leaving it, it is a derelict and the change of their intention and
an attempt to return to it will not change its nature
ex. a schooner which has capsized in the high seas, deserted by her captain with no intention to
return, is a derelict
a vessel, though not abandoned, may be the subject of salvage, if at the time the services were
rendered, there was a probable, threatening danger to the vessel or its cargo --> if the vessel towed is
aided in escaping present or prospective danger, the service is one of salvage an the towage is merely
incidental
Rights of finder of derelict: The finder who takes possession with the intention of saving her,
gains a right of possession which he can maintain against the true owners. The owner does not renounce
his right of property. This is not presumed to be intentional, nor does the finder acquire any such right.
But the owner thus abandons temporarily, his right of possession, which is transferred to the finder who
becomes bound to preserve the property with GF and bring it to a place of safety for the owner's use; in
return, he acquires a right to be paid for his service a reasonable and proper compensation out of the
property itself. He is not bound to part with the possession until he is paid or the property is taken into
the possession of the law preparatory to the amount of salvage being legally asserted
Elements of a valid salvage:
1. a marine peril
2. service voluntarily rendered when not required as an existing duty or from special contract
3. success, in whole or in part, or that the services rendered contributed to such success
Distinction between salvage and towage is of importance to the crew of the salvaging ship : if
the contract for towage is in fact towage, then the crew does not have any interest or rights with the
renumeration pursuant to the contract; BUT if the owners of the respective vessels are of a salvage
nature, the crew of the salvaging ship is entitled to salvage, and can look to the salvaged vessel for its
share
Captain towing vessel cannot invoke equity in quasi-contract of towage --> there is an express
provision of law (Art. 2142, NCC) applicable to the relationship of quasi-contract of towage, where
the crew is not entitled to compensation separate from that of the vessel
Section 2. If the captain of the vessel, or the person acting in his stead, is present, no one
shall take from the sea, or from the shores, or coast merchandise or effects proceeding from a
shipwreck or proceed to the salvage of the vessel, without the consent of such captain or person
acting in his stead.
Section 3. He who shall save or pick up a vessel or merchandise at sea, in the absence of
the captain of the vessel, owner or a representative of either of them, they being unknown, shall
convey and deliver such vessel or merchandise, as soon as possible, to the Collector of Customs, if
the port has a collector, and otherwise to the provincial treasurer or municipal mayor.
Section 4. After the salvage is accomplished, the owner or his representative shall have the
right to the delivery of the vessel or the things saved, provided that he pays or gives a bond to
secure the expenses and the proper reward.
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Salvor has an interest in the property; this is called a lien, but it is not a debt due by the owner to the
salvor for services rendered but upon the principle that the service creates a property in the thing saved
--> he is, to all intents and purposes, a joint owner and if, the property is lost he must bear his share like
other joint owners.
Payment of compensation where vessel and cargo salvage : where a ship and its cargo are saved
together, the salvage allowance should be charged against the ship and cargo in the proportion of their
respective values, as in the case of general average
Section 5. The Collector of Customs, provincial treasurer, or municipal mayor, to whom a
salvage is reported, shall order:
a. That the things saved be safeguarded and inventoried.
b. The sale at public auction of the things saved which may be in danger of immediate loss
or those whose conservation is evidently prejudicial to the interests of the owner, when no
objection is made to such sale.
c. The advertisement within the 30 days subsequent to the salvage, in one of the local
newspapers or in the nearest newspaper published, of all the details of the disaster, with a
statement of the mark and number of the effects requesting all interested persons to make their
claims.
Section 6. If, while the vessel or thing saved are at the disposition of the authorities, the
owner or his representative shall claim them, such authorities shall order their delivery to such
owner or his representative, provided that there is no controversy over their value, and a bond is
given by the owner or his representative to secure the payment of the expenses and the proper
reward. Otherwise, the delivery shall not be made until the matter is decided by the CFI (RTC) of
the province.
Section 7. No claim being presented in the three months subsequent to the publication of
the advertisements prescribed in subsection (c) of Section 5, the things saved shall be sold at public
auction, and their proceeds, after deducting the expenses and the proper reward shall be deposited
in the insular treasury. If three years shall pass without anyone claiming it, one-half of the deposit
shall be adjudged to him who saved the things, and the other half to the insular government.
Section 8. The following shall have no right to a reward for salvage or assistance:
a. The crew of the vessel shipwrecked or which was in danger of shipwreck;
b. He who shall have commenced the salvage in spite of opposition of the captain or his
representative; and
c. He who shall have failed to comply with the provisions of Section 3.
Section 9. If, during the danger, an agreement is entered into concerning the amount of the
reward for salvage or assistance, its validity may be impugned because it is excessive, and it may
be required to be reduced to an amount proportionate to the circumstances.
Kinds of salvage service:
(1) voluntary - wherein the compensation is dependent upon success
(2) rendered under a contract for a pier diem or per horam wage, payable at all events
Where the compensation is dependent upon success, it may be very much larger than mere quantum
meruit --> as a reward for perilous services
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Section 11. From the proceeds of the sale of the things saved shall be deducted, first, the
expenses of their custody, conversation, advertisement, and auction, as well as whatever taxes or
duties they should pay for their entrance; then there shall be deducted the expenses of salvage; and
from the net amount remaining shall be taken the reward for the salvage or assistance which shall
not exceed 50% of such amount remaining.
Section 12. If in the salvage or in the rendering of assistance different persons shall have
intervened the reward shall be divided between them in proportion to the services which each one
may have rendered, and in case of doubt, in equal parts.
Those who, in order to save persons, shall have been exposed to the same dangers shall also
have a right to participation in the reward.
No other person has the right to interfere with the salvage of a vessel or cargo if the salvor is able to effect
the salvage with fidelity and vigor --> if their means are inadequate, they are bound to accept additional
assistance if offered
Taking passengers from a sinking ship, without rendering any service in rescuing the vessel, is not a
salvage service, being a duty of humanity and not for reward --> the Salvage Act, giving salvors of
human life a fair share or remuneration offered to salvors of the vessel, refers to a situation where both
lives and property were simultaneously imperiled and both are rescued at the same time
Section 13. If a vessel or its cargo shall have been assisted or saved, entirely or partially, by
another vessel, the reward for salvage or for assistance shall be divided between the owner, the
PAGE 150
On April 6, 1915 the steamer Seward owned by Macondray & Co. left Saigon for the Philippine Islands,
encountering a moderately high sea. Laden with a cargo of rice, the weight of which, taken with the condition of
the sea, caused the vessel to spring a leak, and her master felt compelled to return to Saigon. At this juncture, the
steamship Hondagua owned by plaintiff, was sighted, whereupon the Seward flew the international distress signal
asking for assistance. The Hondagua changed her course and approached the Seward. Seward had indicated that
it had sprung a leak and wished to be taken in tow. In response to signals from the Hondagua, the Seward sent
her boat to the Hondagua for a heaving line, by means of which a hawser was passed from the Hondagua to the
Seward and the former, with the latter in tow, then proceeded at half speed towards Saigon. Shortly afterwards,
the Seward signaled that the leak was gaining rapidly. The Hondagua went full speed ahead, until their arrival at
Cape St. James, at the mouth of the Saigon River. The towing occupied some 4 or 5 hours and covered a distance
of 20 to 30 miles.
The court found that the value of the Seward upon her arrival at Cape St. James did not exceed P 20,000
and that the value of the cargo was approximately P 54,000. The defendant company had no interest in the cargo,
other than that of the carrier, and the cargo was owned by shippers whose names do not appear of record.
Plaintiff filed an action in the CFI of Manila, seeking to recover from defendant P 75,000, the alleged
value of the salvage service. The CFI ordered the defendant to pay P 4,000 to the plaintiff. Both appealed.
Issues : Is the plaintiff entitled to recover renumeration for saving the cargo as well as for saving the ship?
What is the reasonable compensation which should be allowed?
Held : There is no question as to the liability of defendant for the service rendered by plaintiff. Nor is
there any dispute over the fact that the service rendered was a salvage service and renumerable as such.
Where a ship and its cargo are saved together, as a result of services carried on with a view to saving
both, the salvage allowance should be apportioned between the ship and cargo in the proportion of their
respective values, the same as in a case of general average; and neither is liable for the salvage due from
the other. If one who have salved both ship and cargo brings before the court in his salvage action only the
ship, or only the cargo, he will get judgment only for such amount of reward as the court finds to be due
in respect of the value of that property which is before the court. Not only is the salvage charge a separate
and divisible burden as between ship and cargo, but also as between portions of the cargo belonging to
different owners. There is no common liability for the amounts due from the ship or other portions of the
cargo when the ship and cargo, or either, are brought into the custody of the court as a result of a
proceeding in rem. The rule of liability must be the same where a personal action is instituted against the
owners of the one or the other. The personal liability of each must be limited to the portion of the salvage
charge which should be borne by his own property.
If it had been alleged and proved that the ship was unseaworthy when she put to sea or that the
necessity for the salvage service was due to the negligence of the master, or of the ship's owner, the latter
might have been liable, at least between himself and the shipper, for the entire cost of the service. But
when the claim is put upon the basis of salvage, the fixing of the compensation goes beyond the limits of a
quantum meruit for the work and labor done and involves the assessment of a bounty. The amount to be
allowed is in part determined upon considerations of equity and public policy; and it is not proper to make
the ship or the ship's owner liable for the whole amount. But where the owner of the cargo has not been
PAGE 151
Plaintiff Barrios was the captain of MV Henry I, a vessel of William Lines, Inc. At about 8:00 p.m. of
May 1, 1958, plaintiff as captain received an SOS or distress signal by blinkers from the MV Alfredo, owned by
the defendant Carlos Go Thong & Co. Answering the SOS call, the plaintiff as captain of MV Henry, which was
then sailing from Dumaguete City, altered the course of said vessel, and headed towards the MV Don Alfredo,
which plaintiff found to be in trouble, due to engine failure and the loss of her propeller, for which reason, it was
drifting slowly southward from Negros Island towards Borneo in the open China Sea, at the mercy of a moderate
easterly wind. At about 8:25 p.m. on the same day, May 1, 1958, the MV Henry, under the command of the
plaintiff, succeeded in getting near the MV Don Alfredo -- in fact as near as about 7 meters from the latter ship -and with the consent and knowledge of the captain and/or master of the MV Don Alfredo, the plaintiff caused the
latter vessel to be tied to, or well-secured and connected with two lines from the MV Henry; and the latter had the
MV Don Alfredo in tow and proceeded towards the direction of Dumaguete City, as evidenced by a written
certificate to this effect executed by the Master, the Chief Engineer, the Chief Officers, and the Second Engineer
of the MV Don Alfredo, who were then on board the latter ship at the time of the occurrence. When both vessels
were approaching the vicinity of Negros Oriental, the MV Lux, a sister ship of MV Don Alfredo, was sighted
heading towards the two vessels. At the request and instance of the captain of MV Don Alfredo, the plaintiff
caused the tow lines to be released, thereby also releasing the MV Don Alfredo.
Issue: WON the service rendered by plaintiff constituted salvage or towage, and if so, WON plaintiff may
recover from defendant compensation for such service.
Held :(1) According to Sec. 1 of the Salvage Law, those who assist in saving a vessel or its cargo from
shipwreck, shall be entitled to a reward (salvage). "Salvage" has been defined as the compensation
allowed to persons by whose assistance a ship or her cargo has been saved, in whole or in part, form
impending peril on the sea, or in recovering such property from actual loss, as in case of shipwreck,
derelict or recapture. There was no marine peril in this case. Although defendant's vessel was in a
helpless condition due to engine failure, it did not drift too far from the place where it was. As found by
PAGE 152
Planters purchased urea fertilizer from Mitsubishi,New York. The fertilizer was shipped on MV Sun
Plum, which is owned by KKKK, from Alaska to San Fernando, La Union. A time charter party was entered
into between Mitsubishi as shipper/charterer and KKKK as shipowner. Upon arrival in the port, PPI unloaded
the cargo. It took PPI 11 days to unload the cargo. PPI hired a marine and cargo surveyor to determine if there
was any shortage. A shortage and contamination of the fertilizer was discovered. PPI sent a claim letter to
SSA, the resident agent of KKKK for the amount of the loss. An action for damages was filed. SSA contended
that the provisions on CC do not apply to them because they have become private carriers by reason of the
charter-party. The TC awarded damages. The CA reversed.
Issue : Does a charter party between a shipowner and a charterer transform a CC into a private one as
to negate the civil law presumption of negligence in case of loss or damage to its cargo? NO.
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Transcontinental Fertilizer Co. of London chartered from Hongkong Island Shipping Co. the motor
vessel Hongkong Island for the shipment of bagged urea from Odessa, USSR to the Philippines. The parties
signed a Uniform General Charter dated August 1979. The consignee was Atlas Fertilizer Co. while the insurer
was the Union Insurance Society of Canton. Maritime Agencies was appointed as the charterer's agent and
Macondray as the owner's agent. The vessel arrived in Manila to unload part of its cargo and then proceeded to
Cebu to discharge the rest of the cargo. The consignee filed a formal claim for shortlanded bags. The
consignee also filed a claim against Viva Customs Brokerage for the unrecovered spillage. These claims having
been rejected, the consignee went to Union, which paid the total indemnity of P 113,123.86 pursuant to the
insurance contract. As subrogee of the consignee, Union filed a claim for reimbursement against Hongkong
Island Co., Maritime Agencies and/or Viva Customs Brokerage. Viva was dropped from the complaint while
Macondray Co. was impleaded.
The RTC found Hongkong Island liable for the shortlanded bags while Maritime Agencies was held
liable for the spillage during discharge. The RTC ordered Hongkong Island and its local agent Macondray to
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bottomry/respondentia loans
indemnity is paid in advance by way of loan
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Effect of registration:
1. the loan shall have, with regard to other credits, the preference which, according to its nature, it
should have (Art. 580 - 8th in the order of preference)
2. effective against third persons from the time of execution/registration
Art. 721. In a contract on bottomry or respondentia the following must be stated:
1. The kind, name, and registry of the vessel.
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Art. 722. The contracts may be made to order, in which case they shall be transferable by
indorsement, and the indorsee shall acquire all the rights and shall incur all the risks corresponding to the indorser.
e. On What Constituted
Art. 724. The loans may be constituted jointly or separately:
1. On the hull of the vessel.
2. On the rigging.
3. On the equipment, provisions, and fuel.
4. On the engine, if the vessel is a steamer.
5. On the merchandise loaded.
If the loan is constituted on the hull of the vessel, the rigging, equipment and other goods,
provisions, fuel, steam engines, and the freightage earned during the voyage on which the loan is
made, shall also be considered as included in the liability for the loan.
If the loan is made on the cargo, all that which constitutes the same shall be subject to the
repayment; and if on a particular object of the vessel or of the cargo, only the object concretely
and specifically mentioned shall be liable.
Art. 725. No loans on bottomry may be made on the salaries of the crew or on the profits
expected.
f. Amount
Art. 723. Loans may be made in goods and in merchandise, fixing their value in order to
determine the principal of the loan.
Art. 726. If the lender should prove that he loaned an amount larger than the value of the
object liable for the bottomry loan, on account of fraudulent measures employed by the borrower,
the loan shall be valid only for the amount at which said object is appraised by experts.
The surplus principal shall be returned with legal interest for the entire time required for
repayment.
Art. 727. If the full amount of the loan contracted in order to load the vessel should not be
used for the cargo, the balance shall be returned before clearing.
The same procedure shall be observed with regard to the goods taken as loan, if they were
not loaded.
The excess shall be valid only as an ordinary loan
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g. By whom
Art. 728. The loan which the captain takes at the point of residence of the owners of the
vessel shall only affect that part thereof which belongs to the captain, if the other owners or their
agents should not have given their express authorization therefor or should not have taken part in
the transaction.
If one or more of the owners should be requested to furnish the amount necessary to repair
or provision the vessel, and they should not do so within twenty-four hours, the interest which the
parties in default may have in the vessel shall be liable for the loan in the proper proportion.
Outside of the residence of the owners, the captain may contract loans in accordance with
the provisions of Articles 583 and 611.
Art. 617. The captain may not contract loans on respondentia secured by the cargo, and
should he do so the contract shall be void.
Neither may he borrow money on bottomry for his own transactions, except on the portion
of the vessel he owns, provided no money has been previously borrowed on the whole vessel, and
provided there does not exist any other kind of lien or obligation chargeable against the vessel.
When he is permitted to do so, he must necessarily state what interest he has in the vessel.
In case of violation of this article the principal, interest, and costs shall be charged to the
private account of the captain, and the ship agent may furthermore discharge him.
Art. 611. In order to comply with the obligations mentioned in the foregoing article, and
when he has no funds and does not expect to receive any from the agent, the captain shall procure
the same in the successive order stated below:
1. By requesting said funds of the consignees of the vessel or the correspondents of the
ship agent.
2. By applying to the consignees of the cargo or to the persons interested therein.
3.
By drawing on the ship agent.
4. By borrowing the amount required by means of a bottomry loan.
5. By selling a sufficient amount of the cargo to cover the amount absolutely necessary to
repair the vessel and to equip her to pursue the voyage.
In the two last cases he must apply to the judicial authority of the port, if in the Philippines
and to the Filipino consul, if in a foreign country; and where there should be none, to the local
authority, proceeding in accordance with the prescriptions of Article 583, and with the provisions
of the law of civil procedure.
Art. 583. If the ship being on a voyage the captain should find it necessary to contract one
or more of the obligations mentioned in Nos. 8 and 9 of Article 580, he shall apply to the judge or
court if he is in Philippine territory, and otherwise to the Filipino consul, should there be one, and
in his absence to the judge or court or to the proper local authority, presenting the certificate of the
registry of the vessel treated of in Article 612, and the instruments proving the obligation contracted.
The judge or court, the consul or the local authority as the case may be in view of the
result of the proceedings instituted, shall make a temporary memorandum in the certificate of their
result, in order that it may be recorded in the registry when the vessel returns to the port of her
registry, or so that it can be admitted as a legal and preferred obligation in case of sale before the
return, by reason of the sale of the vessel by virtue of a declaration of unseaworthiness.
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F. BILL OF LADING
B/L operates both as a receipt and as a contract; it is a receipt for the goods shipped and a contract to
transport and deliver the same as stipulated
A stipulation that a CC's liability is limited to the value of the goods appearing in the B/L,
unless the owner declares a greater value, is valid and binding
Bill of Lading vs Charter party
1. Charter party - entire or complete contract
B/L - private receipt which the captain gives to accredit that such goods belong to such persons
2. Charter party - consensual party, which can be dissolved by means of indemnity for losses and
damages
B/L - real contract; exists only after delivery of the goods to be transported is made
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Private respondents purchased first-class tickets from petitioner in Cebu City. They were to board
petitioner's vessel M/V Sweet Grace, bound for Catbalogan, Western Samar. Instead of departing at the
scheduled hour of about midnight, the vessel sailed at around 3 A.M. only to be towed back to Cebu due to
engine trouble, arriving back at Cebu at about 4 PM. After repairs, the vessel was only able to leave around 8
A.M. of the next day.
Instead of docking at Catbalogan, which was the first port of call, the vessel proceeded directly to
Tacloban. Private respondents had no recourse but to disembark and board a ferryboat to Catbalogan. Hence
this suit for damages for breach of contract of carriage. The TC and CA decided in favor of plaintiffs.
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RISKS
Sec. 2. Subject to the provisions of Section 6, 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 hereinafter set forth.
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(3) The shipper shall not be responsible for loss or damage sustained by the carrier or the
ship arising or resulting from any cause without the act, or neglect of the shipper, his agents, or his
(4) An deviation in saving or attempting to save life or property at sea, or any reasonable
deviation shall not be deemed to be an infringement or breach of this Act or of the contract of
carriage, and carrier shall not be liable for any loss or damage resulting therefrom: Provided,
however, that if the deviation is for the purpose of loading or unloading cargo or passengers it shall,
prima facie, be regarded as unreasonable.
(5) Neither the carrier nor the ship shall in any event be or become liable for any loss or
damage to or in connection with the transportation of goods in an amount exceeding $500 per
package of lawful money of the United States, or in case of goods not shipped in packages, per
customary freight unit, or the equivalent of that sum in other currency, unless the nature and value
of such goods have been declared by the shipper before shipment and inserted in the bill of lading.
This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be
conclusive on the carrier.
By agreement between the carrier, master or agent of the carrier, and the shipper another
maximum amount than that mentioned in this paragraph may be fixed: Provided, that such
maximum shall not be less than the figure above named. In no event shall the carrier be liable for
more than the amount of damage actually sustained.
Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in
connection with the transportation of the goods if the nature or value thereof has been knowingly
and fraudulently mis-stated by the shipper in the bill of lading.
(6) Goods of an inflammable, explosive, or dangerous nature to the shipment whereof, the
carrier, master or agent of the carrier, has not consented with knowledge of their nature and
character, may at any time before discharge be landed at any place or destroyed or rendered
innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all
damages and expenses directly or indirectly arising out of or resulting from such shipment. If any
such goods shipped with such knowledge and consent shall become a danger to the ship or cargo,
they may in like manner be landed at any place, or destroyed or rendered innocuous by the carrier
without liability on the part of the carrier except to general average if any.
Notes: Amount recoverable in case of loss: $500/package, even if not stipulated
The plaintiff cannot dispute said limitation on the ground that it was not freely and fairly agreed upon or
that it is against public policy, since the LAW ITSELF PROVIDES FOR SAID LIMITATION; THE
SAME IS DEEMED READ INTO THEIR CONTRACT
Package - means individual packaging of the goods
- does not cover 1 container van
Parties may agree to amount of liability less than $500 under Sec. 4(5). By providing that $500 is the
maximum liability, the law does not disallow an agreement for liability at a lesser amount. Moreover,
Art. 1749 of the NCC expressly allows th limitation of the carrier's liability. (Eastern v. Great American)
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1. A Filipino minor was informed by Northwest that he had no reservations for his flights, and had to be
waitlisted, despite a previous confirmation. He sued for damages. Northwest moved to dismiss on the ground of
lack of jurisdiction based on Art.28 (1) of the Warsaw Convention, where the complaint could be instituted in the
territory of one of the contracting parties before the court of the
(1) domicile of the carrier;
(2) principal place of business;
(3) where it has a place of business through which the contract had been made; and
(4) place of destination.
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Nicolas Cuenca, an official delegate of Philippines to a conference in Tokyo, was transferred from first
class to tourist class despite his first class ticket. The Northwest agent also treated him rudely in front of other
passengers. Northwest argues that according to the Warsaw Convention, Arts. 17, 18, 19, an air carrier is liable
only in the event of (a) death of a passenger or injury suffered by him; (b) of destruction or loss of, or damage
to any checked baggage/goods; & (c) delay in the transportation by air of passengers, baggage or goods.
ISSUE: W/NOT CUENCA HAS A CAUSE OF ACTION THOUGH NOT AMONG THOSE
MENTIONED IN THE WC?
HELD: Yes. The said articles merely declare the carrier liable for damages in the enumerated cases, if the
conditions therein specified are present. Neither the provisions of said articles nor others regulate or
exclude liability for other breaches of contract by the carrier. Under petitioner's theory, an air carrier
would be exempt from any liability for damages in the event of its absolute refusal, in bad faith, to
comply with a contract of carriage, which is absurd.
ALITALIA V. IAC [192 SCRA 10 (1990)]
F:
Dr. Felipa Pablo, an Associate UP Professor and research grantee of the Philippine Atomic Energy
Agency was scheduled to speak in a UN meeting in Ispra, Italy. She arrived in Milan a day before the meeting,
but her luggage (where her speech was) was delayed, and arrived a day after the meeting. She returned to
Manila before the meeting.
E. Limitations on Liability
RE: PASSENGERS
PAGE 187
Pangan's luggages didn't arrive w/ his flight. As a consequence the film exhibitions he set up &
promoted for, was cancelled. CFI ordered PanAm to pay for P83,000 for actual damages. PanAm contended that
such award was beyond the limitation of liability set forth in the Warsaw Con., the provisions of such being
found at the back of the ticket.
ISSUE: WON Pangan is bound by such Warsaw provisions & hence is entitled only to $600 ($20
standard X 30 kilos) ---- YES.
Such provisions have been held to be a part of the contract of carriage, & is valid & binding upon
the passenger regardless of the latter's lack of knowledge or assent to the regulation.
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. Inasmuch as Pangan failed to declare any
higher value for his luggage & to pay add'l charges, PanAm's liability is limited to $600, as stipulated at
the back of the ticket.
PAGE 188
Feliciano, & her Co. asked P182,000 for the value of the contents of her lost luggage (including loss of
possible opportunities). PanAm contends its liability if limited by the Warsaw Con. to not more than $20 per
kilo. TC held that there was no issue of fact except as to amount& awarded $600 ($20 X 30 kgs).
PAGE 189
Vinluan, ACCRA lawyer, was downgraded from 1st class to economy & was issued refund
application, in his MNL-Europe-NYK- SFO-MNL flight. (His NYK-SFO flight particularly) He also noticed that
white Caucasian passengers who checked in later than him were given preference in 1st class seats, w/c became
available due to "no show" passengers. He sued in CFI for breach of contract & bad faith.
ISSUE: WON Warsaw Con. limit on liability can be availed of --- NO.
There was obvious discrimination & humiliation to w/c Vinluan was subjected. Such inattention
& lack of care for interest of its passengers amount to bad faith w/c entitles passenger to moral damages.
NOTES: His entire trip, even though he availed of the services of other airlines, is equal to one
transport.
E.g. MNL-SFO via PAL } one continuing
SFO-NYK via United }
ticket
Hence, if injury appears in SFO-NYK, Warsaw can be applied.
F. Conditions of Liability
Art.26. (1) Receipt by the person entitled to the delivery of baggage of goods w/o complaint
shall be prima facie evidence that the same have been delivered in good condition & in accordance
w/ the document of transpo.
(2)In case of damage, the person entitled to delivery must complain to the carrier forthwith
after the discovery of the damage, and at the latest, within 3 days from the date of receipt in the case
of BAGGAGE and 7 days from the date of receipt in the case of GOODS. In case of DELAY the
complaint must be made at the latest w/in 14 days from the date on w/c the baggage or goods have
been placed at his disposal.
(3) Every complaint must be made in writing upon the document of transportation or by
separate notice in writing dispatched w/in the times aforesaid.
(4) Failing complaint w/in the times aforesaid, no action shall lie against the carrier, save in
the case of fraud on his part.
NOTE: No notice requirement in case or a person's death or injury.
PAGE 190
Art. 27. In the case of death of the person liable, an action for damages lies in accordance w/
th terms of this convention against those legally representing his estate.
Art. 28. (1) An action for damage must be brought at the option of the plaintiff, in the
territory of one of the High Contracting Parties, either before the court of the domicile of the
carrier or of his principal place of business , or where he has a place of business through w/c the
contract has been made, or before the court at the place of destination.
(2) Questions of procedure shall be governed by the law of the court to w/c the case is submitted.
SANTOS v. NORTHWEST (supra)
Art. 28(1) provides that an action for damage must be brought at the option of the plaintiff:
(a) before the court of the domicile of the carrier;
(b) the court of its principal place of business;
(c) the court where it has a place of business thru w/c the contract had been made;
(d) the court of the place of destination.
xxx
In this case, the ff. were not followed, and hence the Phils., not being one of the courts mentioned
in Art.28 (1), does not have jurisdiction over the case.
(1) court of domicile is U.S., Minnesota;
(2) principal place of business of carrier is also US;
(3) place of business where contract was made was in San Francisco;
(4) place of destination is also San Francisco, Santos having purchased a round trip-ticket from SFOTYO-MNL, then back to TYO- SFO. The "ultimate destination" being San Francisco.
Art. 32. Any clause contained in the contract an all special agreements entered into before
the damage occurred by which the parties purport to infringe the rules laid down by this
convention, whether by deciding the law to be applied or by altering the rules as to jurisdiction,
shall be null and void. Nevertheless, for the transportation of goods, arbitration clauses shall be
allowed, subject to this convention, if the arbitration is to take place within one of the jurisdictions
referred to in the first paragraph of Article 28.
PAGE 191