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Common carriers, "by the nature of their business and for reasons
of public policy" 2 are held to a very high degree of care and
diligence ("extraordinary diligence") in the carriage of goods as well
as of passengers. The specific import of extraordinary diligence in
the care of goods transported by a common carrier is, according to
Article 1733, "further expressed in Articles 1734,1735 and 1745,
numbers 5, 6 and 7" of the Civil Code.
Article 1734 establishes the general rule that common carriers are
responsible for the loss, destruction or deterioration of the goods
which they carry, "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 packing or-in the
containers;
and
(5) Order or act of competent public
authority.
It is important to point out that the above list of causes of loss,
destruction or deterioration which exempt the common carrier for
responsibility therefor, is a closed list. Causes falling outside the
foregoing list, even if they appear to constitute a species of force
majeure fall within the scope of Article 1735, which provides as
follows:
In all cases other than those mentioned in numbers
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
five (5) hold-uppers were armed with firearms. The robbers not only
took away the truck and its cargo but also kidnapped the driver and
his helper, detaining them for several days and later releasing
them in another province (in Zambales). The hijacked truck was
subsequently found by the police in Quezon City. The Court of First
Instance convicted all the accused of robbery, though not of
robbery in band. 4
In these circumstances, we hold that the occurrence of the loss
must reasonably be regarded as quite beyond the control of the
common carrier and properly regarded as a fortuitous event. It is
necessary to recall that even common carriers are not made
absolute insurers against all risks of travel and of transport of
goods, and are not held liable for acts or events which cannot be
foreseen or are inevitable, provided that they shall have complied
with the rigorous standard of extraordinary diligence.
We, therefore, agree with the result reached by the Court of
Appeals that private respondent Cendana is not liable for the value
of the undelivered merchandise which was lost because of an event
entirely beyond private respondent's control.
ACCORDINGLY, the Petition for Review on certiorari is hereby
DENIED and the Decision of the Court of Appeals dated 3 August
1977 is AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Associate Justice
WE CONCUR:
RAMON
U.
MABUTAS,
HERMACHUELOS
JR.
PORTIA
ALIO
On cross examination
Atty. Sarenas: This being the case, and
this being an admission by you, this
Certificate of Inspection has expired on
December 7. Did it occur to you not to
let the vessel sail on that day because
of the very approaching date of
expiration?
Apolinar Ng: No sir, because as I said
before, the operation Manager assured
us that they were able to secure a
renewal of the Certificate of Inspection
and that they will in time submit us a
copy. 26
Finally, on Mr. Ng's redirect examination:
Atty. Poblador: Mr. Witness, were you
aware of the pending expiry of the
Certificate of Inspection in the
Atty. Sarenas: . . .
Atty. Poblador:
Inspection?
The
certificate
of
the skill and the knowledge that would have prevented the vessel's
hitting the sunken derelict ship that lay on their way to Pier 18.
As a common carrier, petitioner is liable for breach of the contract
of carriage, having failed to overcome the presumption of
negligence with the loss and destruction of goods it transported, by
proof of its exercise of extraordinary diligence.
On the issue of subrogation, which petitioner contends as
inapplicable in this case, we once more rule against the petitioner.
We have already found petitioner liable for breach of the contract of
carriage it entered into with Pag-asa Sales, Inc. However, for the
damage sustained by the loss of the cargo which petitioner-carrier
was transporting, it was not the carrier which paid the value thereof
to Pag-asa Sales, Inc. but the latter's insurer, herein private
respondent PhilGen.
Article 2207 of the Civil Code is explicit on this point:
Art. 2207. If the plaintiffs property has been insured,
and he has received indemnity from the insurance
company for the injury or loss arising out of the
wrong or breach of contract complained of, the
insurance company shall be subrogated to the rights
of the insured against the wrongdoer or the person
who violated the contract. . . .
This legal provision containing the equitable principle of
subrogation has been applied in a long line of cases
including Compania Maritima v. Insurance Company of North
America; 7 Fireman's Fund Insurance Company v. Jamilla &
Company, Inc., 8 and Pan Malayan Insurance Corporation v. Court
of Appeals, 9 wherein this Court explained:
Article 2207 of the Civil Code is founded on the wellsettled principle of subrogation. If the insured
property is destroyed or damaged through the fault
or negligence of a party other than the assured, then
the insurer, upon payment to the assured will be
subrogated to the rights of the assured to recover
the death of their son Ruelito C. Cruz (Ruelito) who perished with
his wife on September 11, 2000 on board the boat M/B Coco Beach
III that capsized en route to Batangas from Puerto Galera, Oriental
Mindoro where the couple had stayed at Coco Beach Island Resort
(Resort) owned and operated by respondent.
Help came after about 45 minutes when two boats owned by Asia
Divers in Sabang, Puerto Galera passed by the capsized M/B Coco
Beach III. Boarded on those two boats were 22 persons, consisting
of 18 passengers and four crew members, who were brought to Pisa
Island. Eight passengers, including petitioners son and his wife,
died during the incident.
The stay of the newly wed Ruelito and his wife at the Resort from
September 9 to 11, 2000 was by virtue of a tour package-contract
with respondent that included transportation to and from the Resort
and the point of departure in Batangas.
Petitioners,
by
letter
of
October
26,
2000, 4 demanded
indemnification from respondent for the death of their son in the
amount of at least P4,000,000.
added that M/B Coco Beach III met all four conditions on September
11, 2000,9 but a subasco or squall, characterized by strong winds
and big waves, suddenly occurred, causing the boat to capsize. 10
public
Under the Civil Code, common carriers, from the nature of their
business and for reasons of public policy, are bound to observe
extraordinary diligence for the safety of the passengers transported
by them, according to all the circumstances of each case. 19 They
are 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 the circumstances.20
Respondent cites the squall that occurred during the voyage as the
fortuitous event that overturned M/B Coco Beach III. As reflected
above, however, the occurrence of squalls was expected under the
weather condition of September 11, 2000. Moreover, evidence
shows that M/B Coco Beach III suffered engine trouble before it
capsized and sank.26 The incident was, therefore, not completely
free from human intervention.
Life
=
expectancy
35
contractor
or
other
Hence, this petition. At first, the petition was denied due course in a
Resolution dated November 11, 1996. 13 Petitioner moved for a
reconsideration which was granted by this Court in a
Resolution 14 of January 22, 1997. Thus, the petition was
reinstated.
Petitioner claims that the respondent Court of Appeals erred in
holding that (1) the petitioner is not a common carrier or a
transportation contractor, and (2) the exemption sought for by
petitioner is not clear under the law.
MELENCIO-HERRERA, J.:
These two cases, both for the recovery of the 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.
The basic facts are not in controversy:
In G.R. No. 69044, sometime in or prior to June, 1977, the M/S
ASIATICA, a vessel operated by petitioner Eastern Shipping Lines,
Inc., (referred to hereinafter as Petitioner Carrier) loaded at Kobe,
Japan for transportation to Manila, 5,000 pieces of calorized lance
pipes in 28 packages valued at P256,039.00 consigned to Philippine
Blooming Mills Co., Inc., and 7 cases of spare parts valued at
P92,361.75, consigned to Central Textile Mills, Inc. Both sets of
goods were insured against marine risk for their stated value with
respondent Development Insurance and Surety Corporation.
In G.R. No. 71478, during the same period, the same vessel took on
board 128 cartons of garment fabrics and accessories, in two (2)
containers, consigned to Mariveles Apparel Corporation, and two
cases of surveying instruments consigned to Aman Enterprises and
General Merchandise. The 128 cartons were insured for their stated
value by respondent Nisshin Fire & Marine Insurance Co., for US
$46,583.00, and the 2 cases by respondent Dowa Fire & Marine
Insurance Co., Ltd., for US $11,385.00.
Enroute for Kobe, Japan, to Manila, the vessel caught fire and sank,
resulting in the total loss of ship and cargo. The respective
respondent Insurers paid the corresponding marine insurance
values to the consignees concerned and were thus subrogated unto
the rights of the latter as the insured.
G.R. NO. 69044
On May 11, 1978, respondent Development Insurance & Surety
Corporation (Development Insurance, for short), having been
subrogated unto the rights of the two insured companies, filed suit
against petitioner Carrier for the recovery of the amounts it had
paid to the insured before the then Court of First instance of Manila,
Branch XXX (Civil Case No. 6087).
Both Petitions were initially denied for lack of merit. G.R. No. 69044
on January 16, 1985 by the First Division, and G. R. No. 71478 on
September 25, 1985 by the Second Division. Upon Petitioner
Carrier's Motion for Reconsideration, however, G.R. No. 69044 was
given due course on March 25, 1985, and the parties were required
to submit their respective Memoranda, which they have done.
On the other hand, in G.R. No. 71478, Petitioner Carrier sought
reconsideration of the Resolution denying the Petition for Review
and moved for its consolidation with G.R. No. 69044, the lowernumbered case, which was then pending resolution with the First
Division. The same was granted; the Resolution of the Second
Division of September 25, 1985 was set aside and the Petition was
given due course.
At the outset, we reject Petitioner Carrier's claim that it is not the
operator of the M/S Asiatica but merely a charterer thereof. We note
that in G.R. No. 69044, Petitioner Carrier stated in its Petition:
There are about 22 cases of the "ASIATICA" pending
in various courts where various plaintiffs are
represented by various counsel representing various
consignees or insurance companies. The common
defendant in these cases is petitioner herein, being
the operator of said vessel. ... 1
Petitioner Carrier should be held bound to said admission. As a
general rule, the facts alleged in a party's pleading are deemed
admissions of that party and binding upon it. 2 And an admission in
one pleading in one action may be received in evidence against the
pleader or his successor-in-interest on the trial of another action to
which he is a party, in favor of a party to the latter action. 3
The threshold issues in both cases are: (1) which law should govern
the Civil Code provisions on Common carriers or the Carriage of
Goods by Sea Act? and (2) who has the burden of proof to show
negligence of the carrier?
It is to be noted that the Civil Code does not of itself limit the
liability of the common carrier to a fixed amount per package
although the Code expressly permits a stipulation limiting such
liability. Thus, the COGSA which is suppletory to the provisions of
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 Carriage of Goods by.Sea Act 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. 16
of
of
at
to
(128) Cartons)
The foregoing would explain the use of the estimate "Say: Two (2)
Containers Only" in the Bill of Lading, meaning that the goods could
probably fit in two (2) containers only. It cannot mean that the
shipper had furnished the containers for if so, "Two (2) Containers"
appearing as the first entry would have sufficed. and if there is any
ambiguity in the Bill of Lading, it is a cardinal principle in the
construction of contracts that the interpretation of obscure words or
stipulations in a contract shall not favor the party who caused the
obscurity. 20 This applies with even greater force in a contract of
adhesion where a contract is already prepared and the other party
merely adheres to it, like the Bill of Lading in this case, which is
draw. up by the carrier. 21
Petitioner Carrier claims that the Trial Court did not give it sufficient
time to take the depositions of its witnesses in Japan by written
interrogatories.
In this case, the Bill of Lading (Exhibit "A") disclosed the following
data:
2 Containers
NDC's appeal was docketed as G.R. No. 49407, while that of MCP
was docketed as G.R. No. 49469. On July 25,1979, this Court
ordered the consolidation of the above cases (Rollo, p. 103). On
August 27,1979, these consolidated cases were given due course
(Rollo, p. 108) and submitted for decision on February 29, 1980
(Rollo, p. 136).
In its brief, NDC cited the following assignments of error:
I
THE COURT OF APPEALS ERRED IN APPLYING ARTICLE 827 OF THE
CODE
OF
COMMERCE
AND
NOT
SECTION
4(2a)
OF
COMMONWEALTH ACT NO. 65, OTHERWISE KNOWN AS THE
CARRIAGE OF GOODS BY SEA ACT IN DETERMINING THE LIABILITY
II
IV
foreign trade. Aside from the fact that the Carriage of Goods by Sea
Act (Com. Act No. 65) does not specifically provide for the subject
of collision, said Act in no uncertain terms, restricts its application
"to all contracts for the carriage of goods by sea to and from
Philippine ports in foreign trade." Under Section I thereof, it is
explicitly provided that "nothing in this Act shall be construed as
repealing any existing provision of the Code of Commerce which is
now in force, or as limiting its application." By such incorporation, it
is obvious that said law not only recognizes the existence of the
Code of Commerce, but more importantly does not repeal nor limit
its application.
On the other hand, Maritime Company of the Philippines claims that
Development Insurance and Surety Corporation, has no cause of
action against it because the latter did not prove that its alleged
subrogers have either the ownership or special property right or
beneficial interest in the cargo in question; neither was it proved
that the bills of lading were transferred or assigned to the alleged
subrogers; thus, they could not possibly have transferred any right
of action to said plaintiff- appellee in this case. (Brief for the
Maritime Company of the Philippines, p. 16).
The records show that the Riverside Mills Corporation and Guilcon,
Manila are the holders of the duly endorsed bills of lading covering
the shipments in question and an examination of the invoices in
particular, shows that the actual consignees of the said goods are
the aforementioned companies. Moreover, no less than MCP itself
issued a certification attesting to this fact. Accordingly, as it is
undisputed that the insurer, plaintiff appellee paid the total amount
of P364,915.86 to said consignees for the loss or damage of the
insured cargo, it is evident that said plaintiff-appellee has a cause
of action to recover (what it has paid) from defendant-appellant
MCP (Decision, CA-G.R. No. 46513-R, p. 10; Rollo, p. 43).
MCP next contends that it can not be liable solidarity with NDC
because it is merely the manager and operator of the vessel Dona
Nati not a ship agent. As the general managing agent, according to
MCP, it can only be liable if it acted in excess of its authority.
requisite approval, the transfer is not binding upon the public and
third persons. 6
We also find no merit in the petitioner's argument that the rule
requiring the previous approval by the Public Service Commission,
of the transfer or lease of the motor vehicle, may be applied only in
cases where there is no positive Identification of the owner or
driver, or where there are very scant means of Identification, but
not in those instances where the person responsible for damages
has been fixed or determined beforehand, as in the case at bar. The
reason for the rule we reiterate in the present case, was explained
by the Court in Montoya vs. Ignacio, 7thus:
There is merit in this contention. The law really
requires the approval of the Public Service
Commission in order that a franchise, or any privilege
pertaining thereto, may be sold or leased without
infringing the certificate issued to the grantee. The
reason is obvious. Since a franchise is personal in
nature any transfer or lease thereof should be
notified to the Public Service Commission so that the
latter mav take proper safeguards to protect the
interest of the public. In fact, the law requires that,
before the approval is granted, there should be a
public hearing, with notice to all interested parties, in
order that the Commission may determine if there
are good and reasonable grounds justifying the
transfer or lease of the property covered by the
franchise, or if the sale or lease is detrimental to
public interest. Such being the reason and philosophy
behind this requirement, it follows that if the
property covered by the franchise is transferred, or
leased to another without obtaining the requisite
approval, the transfer is not binding against the
Public Service Commission and in contemplation of
law the grantee continues to be responsible under
the franchise in relation to the Commission and to
the Public. Since the lease of the jeepney in question
was made without such approval the only conclusion
that can be drawn is that Marcelino Ignacio still
This petition raises the sole issue of whether or not the owner of a
private vehicle which figured in an accident can be held liable
under Article 2180 of the Civil Code when the said vehicle was
neither driven by an employee of the owner nor taken with the
consent of the latter.
which resulted in the killing of Erezo, claimed that at the time of the
accident, the truck belonged to the Port Brokerage in an
arrangement with the corporation but the same was not known to
the Motor Vehicles Office. This Court sustained the trial court's
ruling that since Jepte represented himself to be the owner of the
truck and the Motor Vehicles Office, relying on his representation,
registered the vehicle in his name, the Government and all persons
affected by the representation had the right to rely on his
declaration of ownership and registration. Thus, even if Jepte were
not the owner of the truck at the time of the accident, he was still
held liable for the death of Erezo significantly, the driver of the
truck was fully authorized to drive it.
Likewise, in the Vargas case, just before the accident occurred
Vargas had sold her jeepney to a third person, so that at the time of
the accident she was no longer the owner of the jeepney. This
court, nevertheless, affirmed Vargas' liability since she failed to
surrender to the Motor Vehicles Office the corresponding AC plates
in violation of the Revised Motor Vehicle Law and Commonwealth
Act No. 146. We further ruled that the operator of record continues
to be the operator of the vehicle in contemplation of law, as
regards the public and third persons, and as such is responsible for
the consequences incident to its operator. The vehicle involved was
a public utility jeepney for hire. In such cases, the law does not only
require the surrender of the AC plates but orders the vendor
operator to stop the operation of the jeepney as a form of public
transportation until the matter is reported to the authorities.
As can be seen, the circumstances of the above cases are entirely
different from those in the present case. Herein petitioner does not
deny ownership of the vehicle involved in tire mishap but
completely denies having employed the driver Sabiniano or even
having authorized the latter to drive his jeep. The jeep was virtually
stolen from the petitioner's garage. To hold, therefore, the
petitioner liable for the accident caused by the negligence of
Sabiniano who was neither his driver nor employee would be
absurd as it would be like holding liable the owner of a stolen
vehicle for an accident caused by the person who stole such
vehicle. In this regard, we cannot ignore the many cases of vehicles
forcibly taken from their owners at gunpoint or stolen from garages
The Facts
On July 17, 1994, a Fuso Road Tractor driven by Raul Tutor
rammed into the house cum store of Myrna Tamayo located at Pier
18, Vitas, Tondo, Manila. A portion of the house was
destroyed. Pinned to death under the engine of the tractor were
Respondent Myrna Tamayos son, Reniel Tamayo, and Respondent
Felix Oledans daughter, Felmarie Oledan. Injured were Respondent
Oledan himself, Respondent Marissa Enano, and two sons of
Respondent Lucita Suyom.
Tutor was charged with and later convicted of reckless
imprudence resulting in multiple homicide and multiple physical
injuries in Criminal Case No. 296094-SA, Metropolitan Trial Court of
Manila, Branch 12.[5]
Office (LTO), the legal owner was still Equitable. [11] Thus, petitioner
was liable to respondents.[12]
[52]
Moral Damages
SO ORDERED.
Petitioner further claims that it is not liable for moral damages,
because respondents failed to establish or show the causal
connection or relation between the factual basis of their claim and
their wrongful act or omission, if any. [49]
Moral damages are not punitive in nature, but are designed to
compensate[50] and alleviate in some way the physical suffering,
mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar
injury unjustly caused a person. [51] Although incapable of pecuniary
computation, moral damages must nevertheless be somehow
proportional to and in approximation of the suffering inflicted.
the
assailed
URBANO MAGBOO and EMILIA C. MAGBOO, plaintiffsappellees, vs. DELFIN BERNARDO, defendant-appellant.
MAKALINTAL, J.:
Appeal from the Court of First Instance of Manila to the Court of
Appeals, and certified by the latter to this Court on the ground that
only questions of law are involved.
The action of the spouses Urbano Magboo and Emilia C. Magboo
against Delfin Bernardo is for enforcement of his subsidiary liability
as employer in accordance with Article 103, Revised Penal Code.
The trial court ordered defendant to pay plaintiffs P3,000.00 and
costs upon the following stipulated facts:
1. That plaintiffs are the parents of Cesar Magboo, a child of
8 years old, who lived with them and was under their
custody until his death on October 24,1956 when he was
killed in a motor vehicle accident, the fatal vehicle being a
passenger jeepney with Plate No, AC-1963 (56) owned by
the defendant;
2. That at the time of the accident, said passenger jeepney
was driven by Conrado Roque;
3. That the contract between Conrado Roque and defendant
Delfin Bernardo was that Roque was to pay to defendant the
sum of P8.00, which he paid to said defendant, for privilege
of driving the jeepney on October 24, 1956, it being their
agreement that whatever earnings Roque could make out of
the use of the jeepney in transporting passengers from one
point to another in the City of Manila would belong entirely
to Conrado Roque;
4. That as a consequence of the accident and as a result of
the death of Cesar Magboo in said accident, Conrado Roque
was prosecuted for homicide thru reckless imprudence
before the Court of First Instance of Manila, the information
having been docketed as Criminal Case No. 37736, and that
upon arraignment Conrado Roque pleaded guilty to the
in a case where the injured party was not a passenger but a third
person, who sued on the theory of culpa aquiliana (Timbol vs.
Osias, L-7547, April 30, 1955). There is no reason why a different
rule should be applied in a subsidiary liability case under Article
103 of the Revised Penal Code. As in the existence of an employeremployee relationship between the owner of the vehicle and the
driver. Indeed to exempt from liability the owner of a public vehicle
who operates it under the "boundary system" on the ground that
he is a mere lessor would be not only to abet flagrant violations of
the Public Service law but also to place the riding public at the
mercy of reckless and irresponsible drivers - reckless because the
measure of their earnings depends largely upon the number of trips
they make and, hence, the speed at which they drive; and
irresponsible because most if not all of them are in no position to
pay the damages they might cause. (See Erezo vs. Jepte, L-9605,
September 30, 1957).
Wherefore, the parties respectfully pray that the foregoing
stipulation of facts be admitted and approved by this Honorable
Court, without prejudice to the parties adducing other evidence to
prove their case not covered by this stipulation of
facts. 1wph1.t
Appellant further argues that he should not have been held
subsidiarily liable because Conrado Roque (the driver of the
jeepney) pleaded guilty to the charge in the criminal case without
appellant's knowledge and contrary to the agreement between
them that such plea would not be entered but, instead evidence
would be presented to prove Roque's innocence. On this point we
quote with approval the pertinent portion of the decision appealed
from:
"'With respect to the contention of the defendant that he
was taken unaware by the spontaneous plea of guilt entered
by the driver Conrado Roque, and that he did not have a
chance to prove the innocence of said Conrado Roque, the
Court holds that at this stage, it is already too late to try the
criminal case all over again. Defendant's allegation that he
relied on his belief that Conrado Roque would defend
himself and they had sufficient proof to show that Roque
After sometime, the loading of the scrap iron was resumed. But on
December 4, 1956, Acting Mayor Basilio Rub, accompanied by three
policemen, ordered captain Filomeno Niza and his crew to dump the
scrap iron (t.s.n., June 16, 1972, pp. 8-9) where the lighter was
docked (t.s.n., September 28, 1972, p. 31). The rest was brought to
the compound of NASSCO (Record on Appeal, pp. 20-22). Later on
Acting Mayor Rub issued a receipt stating that the Municipality of
Mariveles had taken custody of the scrap iron (Stipulation of Facts,
Record on Appeal, p. 40; t.s.n., September 28, 1972, p. 10.)
On the basis of the above findings, the respondent Court rendered
a decision, the dispositive portion of which states:
WHEREFORE, the decision appealed from is hereby
reversed and set aside and a new one entered
ordering defendant-appellee Mauro Ganzon to pay
plaintiff-appellant Gelacio E. Tumambimg the sum of
P5,895.00 as actual damages, the sum of P5,000.00
as exemplary damages, and the amount of P2,000.00
I
THE COURT OF APPEALS FINDING THE HEREIN PETITIONER GUILTY
OF BREACH OF THE CONTRACT OF TRANSPORTATION AND IN
IMPOSING A LIABILITY AGAINST HIM COMMENCING FROM THE TIME
THE SCRAP WAS PLACED IN HIS CUSTODY AND CONTROL HAVE NO
BASIS IN FACT AND IN LAW.
II
THE APPELLATE COURT ERRED IN CONDEMNING THE PETITIONER
FOR THE ACTS OF HIS EMPLOYEES IN DUMPING THE SCRAP INTO
THE SEA DESPITE THAT IT WAS ORDERED BY THE LOCAL
GOVERNMENT OFFICIAL WITHOUT HIS PARTICIPATION.
III
THE APPELLATE COURT FAILED TO CONSIDER THAT THE LOSS OF
THE SCRAP WAS DUE TO A FORTUITOUS EVENT AND THE
PETITIONER IS THEREFORE NOT LIABLE FOR LOSSES AS A
CONSEQUENCE THEREOF. 4
The petitioner, in his first assignment of error, insists that the scrap
iron had not been unconditionally placed under his custody and
control to make him liable. However, he completely agrees with the
respondent Court's finding that on December 1, 1956, the private
respondent delivered the scraps to Captain Filomeno Niza for
loading in the lighter "Batman," That the petitioner, thru his
employees, actually received the scraps is freely admitted.
Significantly, there is not the slightest allegation or showing of any
condition, qualification, or restriction accompanying the delivery by
the private respondent-shipper of the scraps, or the receipt of the
same by the petitioner. On the contrary, soon after the scraps were
The petitioner has failed to show that the loss of the scraps was
due to any of the following causes enumerated in Article 1734 of
the Civil Code, namely:
(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.
Hence, the petitioner is presumed to have been at fault or to have
acted negligently. 6 By reason of this presumption, the court is not
even required to make an express finding of fault or negligence
before it could hold the petitioner answerable for the breach of the
contract of carriage. Still, the petitioner could have been exempted
from any liability had he been able to prove that he observed
extraordinary diligence in the vigilance over the goods in his
custody, according to all the circumstances of the case, or that the
as
actual
and
compensatory
The fact that Sunga was seated in an "extension seat" placed her in
a peril greater than that to which the other passengers were
exposed. Therefore, not only was petitioner unable to overcome the
presumption of negligence imposed on him for the injury sustained
by Sunga, but also, the evidence shows he was actually negligent
in transporting passengers.
We find it hard to give serious thought to petitioner's contention
that Sunga's taking an "extension seat" amounted to an implied
assumption of risk. It is akin to arguing that the injuries to the
many victims of the tragedies in our seas should not be
compensated merely because those passengers assumed a greater
risk of drowning by boarding an overloaded ferry. This is also true of
petitioner's contention that the jeepney being bumped while it was
improperly parked constitutes caso fortuito. A caso fortuito is an
event which could not be foreseen, or which, though foreseen, was
inevitable.3 This requires that the following requirements be
present: (a) the cause of the breach is independent of the debtor's
will; (b) the event is unforeseeable or unavoidable; (c) the event is
such as to render it impossible for the debtor to fulfill his obligation
in a normal manner, and (d) the debtor did not take part in causing
the
injury
to
the
creditor.4 Petitioner should have foreseen the danger of parking his
jeepney with its body protruding two meters into the highway.
Finally, petitioner challenges the award of moral damages alleging
that it is excessive and without basis in law. We find this contention
well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a
first-year college student in that school year 19891990 at the Silliman University, majoring in Physical
Education. Because of the injury, she was not able to
enroll in the second semester of that school year. She
testified that she had no more intention of continuing
with her schooling, because she could not walk and
decided not to pursue her degree, major in Physical
Education "because of my leg which has a defect
already."
Plaintiff-appellant likewise testified that even while
she was under confinement, she cried in pain
because of her injured left foot. As a result of her
Art. 2201.
xxx xxx xxx
In case of fraud, bad faith, malice or
wanton attitude, the obligor shall be
responsible for all damages which may
be reasonably attributed to the nonperformance of the obligation.
Plaintiff-appellant is entitled to moral damages for
the mental anguish, fright and serious anxiety he
suffered during the voyage when the vessel's engine
broke down and when he disembarked from the
vessel during the wee hours of the morning at Cebu
City when it returned. 14
Moral damages are recoverable in a damage suit
predicated upon a breach of contract of carriage
where it is proved that the carrier was guilty of fraud
or bad faith even if death does not result. 15
Fraud and bad faith by defendant-appellee having
been established, the award of moral damages is in
order. 16
actual
or
must then be read together with Articles 2199, 2200, 2201, and
2208 in relation to Article 21 of the Civil Code. So read, it means
that the petitioner is liable for any pecuniary loss or loss of profits
which the private respondent may have suffered by reason thereof.
For the private respondent, such would be the loss of income if
unable to report to his office on the day he was supposed to arrive
were it not for the delay. This, however, assumes that he stayed on
the vessel and was with it when it thereafter resumed its voyage;
but he did not. As he and some passengers resolved not to
complete the voyage, the vessel had to return to its port of origin
and allow them to disembark. The private respondent then took the
petitioner's other vessel the following day, using the ticket he had
purchased for the previous day's voyage.
Any further delay then in the private respondent's arrival at the
port of destination was caused by his decision to disembark. Had
he remained on the first vessel, he would have reached his
destination at noon of 13 November 1991, thus been able to report
to his office in the afternoon. He, therefore, would have lost only
the salary for half of a day. But actual or compensatory damages
must be proved, 30 which the private respondent failed to do.
There is no convincing evidence that he did not receive his salary
for 13 November 1991 nor that his absence was not excused.
We likewise fully agree with the Court of Appeals that the petitioner
is liable for moral and exemplary damages. In allowing its
unseaworthy M/V Asia Thailand to leave the port of origin and
undertake the contracted voyage, with full awareness that it was
exposed to perils of the sea, it deliberately disregarded its solemn
duty to exercise extraordinary diligence and obviously acted with
bad faith and in a wanton and reckless manner. On this score,
however, the petitioner asserts that the safety or the vessel and
passengers was never at stake because the sea was "calm" in the
vicinity where it stopped as faithfully recorded in the vessel's log
book (Exhibit "4"). Hence, the petitioner concludes, the private
respondent was merely "over-reacting" to the situation obtaining
then. 31
We hold that the petitioner's defense cannot exculpate it nor
mitigate its liability. On the contrary, such a claim demonstrates
beyond cavil the petitioner's lack of genuine concern for the safety
of its passengers. It was, perhaps, only providential then the sea
happened to be calm. Even so, the petitioner should not expect its
passengers to act in the manner it desired. The passengers were
not stoics; becoming alarmed, anxious, or frightened at the
stoppage of a vessel at sea in an unfamiliar zone as nighttime is
not the sole prerogative of the faint-hearted. More so in the light of
the many tragedies at sea resulting in the loss of lives of hopeless
passengers and damage to property simply because common
carriers failed in their duty to exercise extraordinary diligence in the
performance of their obligations.
We cannot, however, give our affirmance to the award of attorney's
fees. Under Article 2208 of the Civil Code, these are recoverable
only in the concept of actual damages, 32 not as moral
damages 33 nor judicial costs. 34Hence, to merit such an award, it
is settled that the amount thereof must be proven. 35 Moreover,
such must be specifically prayed for as was not done in this case
and may not be deemed incorporated within a general prayer for
"such other relief and remedy as this court may deem just and
equitable." 36 Finally, it must be noted that aside from the
following, the body of the respondent Court's decision was devoid
of any statement regarding attorney's fees:
exemplary
damages
are
denied
petitioner's
Motion
for
The Facts
The factual antecedents of the case are summarized by the Court
of Appeals in this wise:
"On June 13, 1990, CMC Trading A.G. shipped on board the
M/V 'Anangel Sky' at Hamburg, Germany 242 coils of various
Prime Cold Rolled Steel sheets for transportation to Manila
consigned to the Philippine Steel Trading Corporation. On
July 28, 1990, M/V Anangel Sky arrived at the port of Manila
and, within the subsequent days, discharged the subject
cargo. Four (4) coils were found to be in bad order B.O. Tally
sheet No. 154974. Finding the four (4) coils in their
damaged state to be unfit for the intended purpose, the
consignee Philippine Steel Trading Corporation declared the
same as total loss.1wphi1.nt
"Despite receipt of a formal demand, defendants-appellees
refused to submit to the consignee's claim. Consequently,
plaintiff-appellant paid the consignee five hundred six
thousand eighty six & 50/100 pesos (P506,086.50), and was
subrogated to the latter's rights and causes of action
against
defendants-appellees.
Subsequently,
plaintiffappellant instituted this complaint for recovery of the
amount paid by them, to the consignee as insured.
"Impugning the propriety of the suit against them,
defendants-appellees imputed that the damage and/or loss
was due to pre-shipment damage, to the inherent nature,
vice or defect of the goods, or to perils, danger and
accidents of the sea, or to insufficiency of packing thereof,
or to the act or omission of the shipper of the goods or their
representatives. In addition thereto, defendants-appellees
argued that their liability, if there be any, should not exceed
the limitations of liability provided for in the bill of lading
and other pertinent laws. Finally, defendants-appellees
averred that, in any event, they exercised due diligence and
foresight required by law to prevent any damage/loss to said
shipment."6
Issues
First Issue:
I
"Whether or not plaintiff by presenting only one
witness who has never seen the subject shipment and
Proof of Negligence
Petitioners contend that the presumption of fault imposed on
common carriers should not be applied on the basis of the lone
Third, Bad Order Tally Sheet No. 15497928 issued by Jardine Davies
Transport Services, Inc., stated that the four coils were in bad order
and condition. Normally, a request for a bad order survey is made
in case there is an apparent or a presumed loss or damage.29
Fourth, the Certificate of Analysis30 stated that, based on the
sample submitted and tested, the steel sheets found in bad order
were wet with fresh water.
Fifth, petitioners -- in a letter31 addressed to the Philippine Steel
Coating Corporation and dated October 12, 1990 -- admitted that
they were aware of the condition of the four coils found in bad
order and condition.
These facts were confirmed by Ruperto Esmerio, head checker of
BM Santos Checkers Agency. Pertinent portions of his testimony are
reproduce hereunder:
"Q.
Mr. Esmerio, you mentioned that you are a Head
Checker. Will you inform the Honorable Court with what
company you are connected?
A.
Q.
How is BM Santos checkers Agency related or
connected with defendant Jardine Davies Transport
Services?
A.
Q.
You mentioned that you are a Head Checker, will you
inform this Honorable Court your duties and responsibilities?
A.
I am the representative of BM Santos on board the
vessel, sir, to supervise the discharge of cargoes.
xxx
xxx
xxx
Q.
On or about August 1, 1990, were you still connected
or employed with BM Santos as a Head Checker?
A.
Yes, sir.
Q.
And, on or about that date, do you recall having
attended the discharging and inspection of cold steel sheets
in coil on board the MV/AN ANGEL SKY?
A.
xxx
xxx
Q.
Based on your inspection since you were also present
at that time, will you inform this Honorable Court the
condition or the appearance of the bad order cargoes that
were unloaded from the MV/ANANGEL SKY?
ATTY. MACAMAY:
Code. They cite the notation "metal envelopes rust stained and
slightly dented" printed on the Bill of Lading as evidence that the
character of the goods or defect in the packing or the containers
was the proximate cause of the damage. We are not convinced.
From the evidence on record, it cannot be reasonably concluded
that the damage to the four coils was due to the condition noted on
the Bill of Lading.40 The aforecited exception refers to cases when
goods are lost or damaged while in transit as a result of the natural
decay of perishable goods or the fermentation or evaporation of
substances liable therefor, the necessary and natural wear of goods
in transport, defects in packages in which they are shipped, or the
natural propensities of animals.41 None of these is present in the
instant case.
In the present case, the cargo was discharged on July 31, 1990,
while the Complaint51 was filed by respondent on July 25, 1991,
within the one-year prescriptive period.
Second Issue:
Third Issue:
Notice of Loss
Package Limitation
PSTSI III was tied down to other barges which arrived ahead of it
while weathering out the storm that night. A few days after, the
barge developed a list because of a hole it sustained after hitting
an unseen protuberance underneath the water. The petitioner filed
a Marine Protest on August 28, 1990.8 It likewise secured the
services of Gaspar Salvaging Corporation which refloated the
barge.9 The hole was then patched with clay and cement.
The barge was then towed to ISLOFF terminal before it finally
headed towards the consignee's wharf on September 5, 1990. Upon
reaching the Sta. Mesa spillways, the barge again ran aground due
to strong current. To avoid the complete sinking of the barge, a
portion of the goods was transferred to three other barges.10
The next day, September 6, 1990, the towing bits of the barge
broke. It sank completely, resulting in the total loss of the
remaining cargo.11 A second Marine Protest was filed on
September 7, 1990.12
On September 14, 1990, a bidding was conducted to dispose of the
damaged wheat retrieved and loaded on the three other
barges.13 The total proceeds from the sale of the salvaged cargo
was P201,379.75.14
On the same date, September 14, 1990, consignee sent a claim
letter to the petitioner, and another letter dated September 18,
1990 to the private respondent for the value of the lost cargo.
On January 30, 1991, the private respondent indemnified the
consignee in the amount of P4,104,654.22.15Thereafter, as
subrogee, it sought recovery of said amount from the petitioner,
but to no avail.
On July 3, 1991, the private respondent filed a complaint against
the petitioner for recovery of the amount of indemnity, attorney's
fees and cost of suit.16 Petitioner filed its answer with
counterclaim.17
The Regional Trial Court ruled in favor of the private respondent.
The dispositive portion of its Decision states:
SO ORDERED.
Petitioner's Motion for Reconsideration dated June 3, 2000 was
likewise denied by the appellate court in a Resolution promulgated
on February 21, 2001.
Hence, this petition. Petitioner submits the following errors
allegedly committed by the appellate court, viz:19
(1) THE COURT OF APPEALS DECIDED THE CASE A QUO IN A
WAY NOT IN ACCORD WITH LAW AND/OR WITH THE
APPLICABLE DECISIONS OF THE SUPREME COURT WHEN IT
HELD THAT PETITIONER IS A COMMON CARRIER.
xxx
q
incident?
xxx
a
After the first accident, through the initiative of the
barge owners, they tried to pull out the barge from the place
of the accident, and bring it to the anchor terminal for
safety, then after deciding if the vessel is stabilized, they
tried to pull it to the consignee's warehouse, now while on
route another accident occurred, now this time the barge
totally hitting something in the course.
q
You said there was another accident, can you tell
the court the nature of the second accident?
xxx
xxx
q
Now, Mr. Witness, did it not occur to you it might be
safer to just allow the Barge to lie where she was instead of
towing it?
a
Since that time that the Barge was refloated, GMC
(General Milling Corporation, the consignee) as I have said
was in a hurry for their goods to be delivered at their Wharf
since they needed badly the wheat that was loaded in
PSTSI-3. It was needed badly by the consignee.
q
And this is the reason why you towed the Barge as
you did?
a
xxx
Yes, sir.
xxx
xxx
q
Can you tell the nature . . . can you tell the court, if
you know what caused the sinking?
a
Mostly it was related to the first accident because
there was already a whole (sic) on the bottom part of the
barge.
xxx
xxx
xxx
xxx
xxx
q
And then from ISLOFF Terminal you proceeded to
the premises of the GMC? Am I correct?
a
The next day, in the morning, we hired for
additional two (2) tugboats as I have stated.
q
Despite of the threats of an incoming typhoon as
you testified a while ago?
a
It is already in an inner portion of Pasig River. The
typhoon would be coming and it would be dangerous if we
are in the vicinity of Manila Bay.
q
no?
a
Yes.
q
And yet as a standard operating procedure of your
Company, you have to secure a sort of Certification to
determine the weather condition, am I correct?
a
Yes, sir.
q
So, more or less, you had the knowledge of the
incoming typhoon, right?
a
Yes, sir.
a
ISLOFF Terminal is far from Manila Bay and anytime
even with the typhoon if you are already inside the vicinity
or inside Pasig entrance, it is a safe place to tow upstream.
Accordingly, the petitioner cannot invoke the occurrence of the
typhoon as force majeure to escape liability for the loss sustained
by the private respondent. Surely, meeting a typhoon head-on falls
short of due diligence required from a common carrier. More
importantly, the officers/employees themselves of petitioner
admitted that when the towing bits of the vessel broke that caused
its sinking and the total loss of the cargo upon reaching the Pasig
River, it was no longer affected by the typhoon. The typhoon then
is not the proximate cause of the loss of the cargo; a human
factor, i.e., negligence had intervened.
IN VIEW THEREOF, the petition is DENIED. The Decision of the
Court of Appeals in CA-G.R. CV No. 49195 dated May 11, 2000 and
its Resolution dated February 21, 2001 are hereby AFFIRMED. Costs
against petitioner.
SO ORDERED.
PAL Flight 149 of October 29, 1976 (See Exh. E., Also
Exh. 1-PAL).
are of the position that, assuming that the petition raises factual
questions, the same are within the recognized exceptions to the
general rule as would render the petition cognizable and worthy of
review by the Court. 16
Since it is precisely the soundness of the inferences or conclusions
that may be drawn from the factual issues which are here being
assayed, we find that the issues raised in the instant petition
indeed warrant a second look if this litigation is to come to a
reasonable denouement. A discussion seriatim of said issues will
further reveal that the sequence of the events involved is in effect
disputed. Likewise to be settled is whether or not the conclusions of
the Court of Appeals subject of this review indeed find evidentiary
and legal support.
I. Petitioners fault respondent court for "not finding that private
respondents failed to exercise extraordinary diligence required by
law which resulted in the switching and/or misdelivery of the
remains of Crispina Saludo to Mexico causing gross delay in its
shipment to the Philippines, and consequently, damages to
petitioners." 17
Petitioner allege that private respondents received the casketed
remains of petitioners' mother on October 26, 1976, as evidenced
by the issuance of PAL Air Waybill No. 079-01180454 18 by Air Care
International as carrier's agent; and 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 October 27, 1976, or one day after private
respondents received the cargo, the latter must necessarily be
liable.
To support their assertion, petitioners rely on the jurisprudential
dictum, both under American and Philippine law, that "(t)he
issuance of a 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. . . . In the
absence of convincing testimony establishing mistake, recitals in
the bill of lading showing that the carrier received the goods for
shipment on a specified date control (13 C.J.S. 235)."19
MICHAEL GIOSSO:
Yes, I do.
did
you
MICHAEL GIOSSO:
It shows transfer of manifest on 10-2776 to PAL at 1400 and verified with two
signatures as it completed the transfer.
ALBERTO A. LIM:
Yes.
xxx xxx xxx
result
your
ATTY. CESAR P. MANALAYSAY:
ALBERTO A. LIM:
ALBERTO A. LIM:
Yes. We have on our records a Transfer
Manifest
from
American
Airlines
Number 204312 showing that we
received a human remains shipment
belong to Mrs. Cristina (sic) Saludo or
the human remains of Mrs. Cristina
(sic) Saludo.
ALBERTO A. LIM:
ALBERTO A. LIM:
Yes.
ATTY. CESAR P. MANALAYSAY:
It bears repeating that CMAS was hired to handle all the necessary
shipping arrangements for the transportation of the human remains
of Crispina Saludo to Manila. Hence, it was to CMAS that the
Pomierski & Son Funeral Home, as shipper, brought the remains of
petitioners' mother for shipment, with Maria Saludo as consignee.
Thereafter, CMAS booked the shipment with PAL through the
carrier's agent, Air Care International. 45 With its aforestated
functions, CMAS may accordingly be classified as a forwarder
which, by accepted commercial practice, is regarded as an agent of
the shipper and not of the carrier. As such, it merely contracts for
the transportation of goods by carriers, and has no interest in the
freight but receives compensation from the shipper as his
agent. 46
came from the same funeral home, or that both caskets were
received by CMAS, then the employees or agents of TWA
presumably caused the mix-up by loading the wrong casket on the
plane. For said error, they contend, TWA must necessarily be
presumed negligent and this presumption of negligence stands
undisturbed unless rebutting evidence is presented to show that
the switching or misdelivery was due to circumstances that would
exempt the carrier from liability.
Private respondent TWA professes otherwise. Having duly delivered
or transferred the cargo to its co-respondent PAL on October 27,
1976 at 2:00 P.M., as supported by the TWA Transfer Manifest, TWA
faithfully complied with its obligation under the airway bill. Said
faithful compliance was not affected by the fact that the remains
were shipped on an earlier flight as there was no fixed time for
completion of carriage stipulated on. Moreover, the carrier did not
undertake to carry the cargo aboard any specified aircraft, in view
of the condition on the back of the airway bill which provides:
CONDITIONS OF CONTRACT
xxx xxx xxx
It is agreed that no time is fixed for the completion of
carriage hereunder and that Carrier may without
notice substitute alternate carriers or aircraft. Carrier
assumes no obligation to carry the goods by any
specified aircraft or over any particular route or
routes or to make connection at any point according
to any particular schedule, and Carrier is hereby
authorized to select, or deviate from the route or
routes of shipment, notwithstanding that the same
may be stated on the face hereof. The shipper
guarantees payment of all charges and advances. 48
Hence, when respondent TWA shipped the body on earlier flight
and on a different aircraft, it was acting well within its rights. We
find this argument tenable.
the carrier duties and/or obligations which it may not have been
ready or willing to assume had it been timely, advised thereof.
Neither does the fact that the challenged condition No. 5 was
printed at the back of the airway bill militate against its binding
effect on petitioners as parties to the contract, for there were
sufficient indications on the face of said bill that would alert them
to the presence of such additional condition to put them on their
guard. Ordinary prudence on the part of any person entering or
contemplating to enter into a contract would prompt even a cursory
examination of any such conditions, terms and/or stipulations.
ALBERTO A. LIM:
They proceeded to analyze exactly where PAL failed, if
any, in forwarding the human remains of Mrs. Cristina
(sic) Saludo. And I found out that there was not (sic)
delay in shipping the remains of Mrs. Saludo to Manila.
Since we received the body from American Airlines on 28
October at 7:45 and we expedited the shipment so that
it could have been loaded on our flight leaving at 9:00 in
the evening or just barely one hour and 15 minutes prior
to the departure of the aircraft. That is so (sic) being the
case, I reported to Manila these circumstances. 70
IV. Finally, petitioners insist, as a consequence of the delay in the
shipment of their mother's remains allegedly caused by wilful
contractual breach, on their entitlement to actual, moral and
exemplary damages as well as attorney's fees, litigation expenses,
and legal interest.
The uniform decisional tenet in our jurisdiction bolds that moral
damages may be awarded for wilful or fraudulent breach of
contract 71 or when such breach is attended by malice or bad
faith. 72 However, in the absence of strong and positive evidence
of fraud, malice or bad faith, said damages cannot be
awarded. 73 Neither can there be an award of exemplary
damages 74 nor of attorney's fees 75 as an item of damages in the
absence of proof that defendant acted with malice, fraud or bad
faith.
The censurable conduct of TWA's employees cannot, however, be
said to have approximated the dimensions of fraud, malice or bad
faith. It can be said to be more of a lethargic reaction produced and
engrained in some people by the mechanically routine nature of
their work and a racial or societal culture which stultifies what
would have been their accustomed human response to a human
need under a former and different ambience.
Nonetheless, the facts show that petitioners' right to be treated
with due courtesy in accordance with the degree of diligence
required by law to be exercised by every common carrier was
ordering the appellant to pay the appellee only the sum of P373.00
as actual damages, with legal interest from May 6, 1960 and the
sum of P150.00 as attorney's fees, eliminating the award of
exemplary damages.
From the decision of the Court of First Instance of Zamboanga City,
appellant appeals to this Court on a question of law, assigning two
errors allegedly committed by the lower court a quo, to wit:
1. The lower court erred in not holding that plaintiff-appellee
was bound by the provisions of the tariff regulations filed by
defendant-appellant with the civil aeronautics board and the
conditions of carriage printed at the back of the plane ticket
stub.
2. The lower court erred in not dismissing this case or
limiting the liability of the defendant-appellant to P100.00.
The facts of this case, as found by the trial court, quoted from the
decision appealed from, are as follows:
xxx
xxx
made and defendant admitted that the two items could not
be found inside the suitcase. There was no evidence on
record sufficient to show that plaintiff's suitcase was never
opened during the time it was placed in defendant's
possession and prior to its recovery by the plaintiff.
However, defendant had presented evidence that it had
authority to open passengers' baggage to verify and find its
ownership or identity. Exhibit "1" of the defendant would
show that the baggage that was offered to plaintiff as his
own was opened and the plaintiff denied ownership of the
contents of the baggage. This proven fact that baggage may
and could be opened without the necessary authorization
and presence of its owner, applied too, to the suitcase of
plaintiff which was mis-sent to Iligan City because of
mistagging. The possibility of what happened in the
baggage of Mr. Del Rosario at the Manila Airport in his
absence could have also happened to plaintiffs suitcase at
Iligan City in the absence of plaintiff. Hence, the Court
believes that these two items were really in plaintiff's
suitcase and defendant should be held liable for the same
by virtue of its contract of carriage.
It is clear from the above-quoted portions of the decision of the trial
court that said court had found that the suitcase of the appellee
was tampered, and the transistor radio and the camera contained
therein were lost, and that the loss of those articles was due to the
negligence of the employees of the appellant. The evidence shows
that the transistor radio cost P197.00 and the camera cost P176.00,
so the total value of the two articles was P373.00.
There is no question that the appellant is a common carrier.1 As
such common carrier the appellant, from the nature of its business
and for reasons of public policy, is bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by it according to the circumstances of
each case. 2 It having been shown that the loss of the transistor
radio and the camera of the appellee, costing P373.00, was due to
the negligence of the employees of the appellant, it is clear that
the appellant should be held liable for the payment of said loss.3
have not been met. It can not be said that the appellee had
actually entered into a contract with the appellant, embodying the
conditions as printed at the back of the ticket stub that was issued
by the appellant to the appellee. The fact that those conditions are
printed at the back of the ticket stub in letters so small that they
are hard to read would not warrant the presumption that the
appellee was aware of those conditions such that he had "fairly and
freely agreed" to those conditions. The trial court has categorically
stated in its decision that the "Defendant admits that passengers
do not sign the ticket, much less did plaintiff herein sign his ticket
when he made the flight on November 23, 1959." We hold,
therefore, that the appellee is not, and can not be, bound by the
conditions of carriage found at the back of the ticket stub issued to
him when he made the flight on appellant's plane on November 23,
1959.
The liability of the appellant in the present case should be
governed by the provisions of Articles 1734 and 1735 of the New
Civil Code, which We quote as follows:
ART. 1734. Common carries 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, 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.1wph1.t
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
ESCOLIN, J.:
This appeal, originally brought to the Court of Appeals, seeks to set
aside the decision of the Court of First Instance of Negros
Occidental in Civil Cases Nos. 7354 and 7428, declaring appellant
Philippine Steam Navigation liable for damages for the loss of the
appellees' cargoes as a result of a fire which gutted the Bureau of
Customs' warehouse in Pulupandan, Negros Occidental.
The Court of Appeals certified the case to Us because only pure
questions of law are raised therein.
The facts culled from the pleadings and the stipulations submitted
by the parties are as follows:
On November 6, 1963, appellees Clara Uy Bico and Amparo
Servando loaded on board the appellant's vessel, FS-176, for
carriage from Manila to Pulupandan, Negros Occidental, the
following cargoes, to wit:
Clara Uy Bico
2:00 in the afternoon of the same day, said warehouse was razed
by a fire of unknown origin, destroying appellees' cargoes. Before
the fire, however, appellee Uy Bico was able to take delivery of 907
cavans of rice 2 Appellees' claims for the value of said goods were
rejected by the appellant.
On the bases of the foregoing facts, the lower court rendered a
decision, the decretal portion of which reads as follows:
WHEREFORE, judgment is rendered as follows:
1. In case No. 7354, the defendant is hereby ordered
to pay the plaintiff Amparo C. Servando the
aggregate sum of P1,070.50 with legal interest
thereon from the date of the filing of the complaint
until fully paid, and to pay the costs.
2. In case No. 7428, the defendant is hereby ordered
to pay to plaintiff Clara Uy Bico the aggregate sum of
P16,625.00 with legal interest thereon from the date
of the filing of the complaint until fully paid, and to
pay the costs.
Article 1736 of the Civil Code imposes upon common carriers the
duty to observe extraordinary diligence from the moment the
goods are unconditionally placed in their possession "until the
same are delivered, actually or constructively, by the carrier to the
consignee or to the person who has a right to receive them, without
prejudice to the provisions of Article 1738. "
The court a quo held that the delivery of the shipment in question
to the warehouse of the Bureau of Customs is not the delivery
contemplated by Article 1736; and since the burning of the
warehouse occurred before actual or constructive delivery of the
goods to the appellees, the loss is chargeable against the
appellant.
It should be pointed out, however, that in the bills of lading issued
for the cargoes in question, the parties agreed to limit the
responsibility of the carrier for the loss or damage that may be
caused to the
stipulation:
following
opined that since the plaintiffs "did not notify defendant or its
employees that they were in possession of the cash, jewelries, and
the wallet they are now claiming," the very provision of law invoked
by them, Article 1998 of the Civil Code, denies them any recourse
against PAL. The Court also pointed out that... while it is true that the use of gems was not taken
advantage of by the robbers in gaining entrance to
defendant's ill-fated plane, the armed robbery that
took place constitutes force majeure for which
defendant is not liable because the robbers were
able to gain entrance to the plane with the guns they
used already in their possession, which fact could not
have been prevented nor avoided by the defendant
since it was not authorized to search its passengers
for firearms and deadly weapons as shown in Exhibits
'6', '7', '8,' and '8-A.' As its robbery constitutes force
majeure, defendant is not liable.
The plaintiffs appealed to the Court of Appeals. 7 The Court
affirmed the trial court's judgment. 8 It rejected the argument that
"the use of arms or ... irresistible force" referred to in Article 2001
constitutes force majeure only if resorted to gain entry into the
airplane, and not if it attends "the robbery itself." The Court ruled
that under the facts, "the highjacking-robbery was force majeure,"
observing that
... hijackers do not board an airplane through a
blatant display of firepower and violent fury.
Firearms, hand-grenades, dynamite, and explosives
are introduced into the airplane surreptitiously and
with the utmost cunning and stealth, although there
is an occasional use of innocent hostages who will be
coldly murdered unless a plane is given to the
hijackers' complete disposal. The objective of
modern-day hijackers is to display the irresistible
force amounting to force majeure only when it is
most effective and that is when the jetliner is winging
its way at Himalayan altitudes and ill-advised heroics
by either crew or passengers would send the multi-
Manila. He placed the value of the lost attache case and its
contents at US$42,403.90. According to him, the loss resulted in his
failure to pay certain monetary obligations, failure to remit money
sent through him to relatives, inability to enjoy the fruits of his
retirement and vacation pay earned from working in Tonga
Construction Company (he retired in August 1974) and inability to
return to Tonga to comply with then existing contracts.
and
the
not
that
(a) . . .
(b) . . .
(c) a notice to the effect that, if the
passenger's
journey
involves
an
ultimate destination or stop in a
country other than the country of
departure, the Warsaw Convention
may be applicable and that the
Convention governs and in most cases
limits the liability of carriers for death
or personal injury and in respect of loss
of or damage to baggage.
We have held in the case of Ong Yiu v. Court of Appeals, supra, and
reiterated in a similar case where herein petitioner was also sued
for damages, Pan American World Airways v. Intermediate
Appellate Court (164 SCRA 268 [1988]) that:
It (plane ticket) is what is known as a contract of
"adhesion", in regards which it has been said that
contracts of adhesion wherein one party imposes a
ready made form of contract on the other, as the
plane ticket in the case at bar, are contracts not
entirely prohibited. The one who adheres to the
contract is in reality free to reject it entirely; if he
adheres, he gives his consent. (Tolentino, Civil Code,
Vol. IV, 1962 ed., p. 462, citing Mr. Justice J.B.L.
Reyes, Lawyer's Journal, January 31, 1951, p. 49) And
as held in Randolph v. American Airlines, 103 Ohio
App. 172, 144 N.E. 2d 878; Rosenchein v. Trans World
Airlines, Inc., 349 S.W. 2d 483, "a contract limiting
liability upon an agreed valuation does not offend
against the policy of the law forbidding one from
contracting against his own negligence.
Considering, therefore, that petitioner had failed to
declare a higher value for his baggage, he cannot be
The record does not show that was the first or only time that Capt.
Santisteban had entertained himself during a voyage by playing
mahjong with his officers and passengers; Negros Navigation in
permitting, or in failing to discover and correct such behaviour,
must be deemed grossly negligent.
Capt. Santisteban was also faulted in the Philippine Coast Guard
decision for failing after the collision, "to institute appropriate
measures to delay the sinking of M/V Don Juan." This appears to us
to be a euphemism for failure to maintain the sea-worthiness or the
water-tight integrity of the "Don Juan." The record shows that the
"Don Juan" sank within ten (10) to fifteen (15) minutes after initial
contact with the "Tacloban City. 15 While the failure of Capt.
Santisteban to supervise his officers and crew in the process of
abandoning the ship and his failure to avail of measures to prevent
the too rapid sinking of his vessel after collision, did not cause the
collision by themselves, such failures doubtless contributed
materially to the consequent loss of life and, moreover, were
indicative of the kind and level of diligence exercised by Capt.
Santisteban in respect of his vessel and his officers and men prior
to actual contact between the two (2) vessels. The officer-on-watch
in the "Don Juan" admitted that he had failed to inform Capt.
Santisteban not only of the "imminent danger of collision" but even
of "the actual collision itself "
There is also evidence that the "Don Juan" was carrying more
passengers than she had been certified as allowed to carry. The
Certificate of Inspection 16 dated 27 August 1979, issued by the
Philippine Coast Guard Commander at Iloilo City, the Don Juan's
home port, states:
Passengers
810
allowed
was 1,004, or 140 persons more than the maximum lumber that
could be safely carried by the "Don Juan," per its own Certificate of
Inspection. 18 We note in addition, that only 750 passengers had
been listed in its manifest for its final voyage; in other words, at
least 128 passengers on board had not even been entered into the
"Don Juan's" manifest. The "Don Juan's" Certificate of Inspection
showed that she carried life boat and life raft accommodations for
only 864 persons, the maximum number of persons she was
permitted to carry; in other words, she did not carry enough boats
and life rafts for all the persons actually on board that tragic night
of 22 April 1980.
We hold that under these circumstances, a presumption of gross
negligence on the part of the vessel (her officers and crew) and of
its ship-owner arises; this presumption was never rebutted by
Negros Navigation.
The grossness of the negligence of the "Don Juan" is underscored
when one considers the foregoing circumstances in the context of
the following facts: Firstly, the "Don Juan" was more than twice as
fast as the "Tacloban City." The "Don Juan's" top speed was 17
knots; while that of the "Tacloban City" was 6.3. knots. 19Secondly,
the "Don Juan" carried the full complement of officers and crew
members specified for a passenger vessel of her class. Thirdly, the
"Don Juan" was equipped with radar which was functioning that
night. Fourthly, the "Don Juan's" officer on-watch had sighted the
"Tacloban City" on his radar screen while the latter was still four (4)
nautical miles away. Visual confirmation of radar contact was
established by the "Don Juan" while the "Tacloban City" was still 2.7
miles away. 20 In the total set of circumstances which existed in
the instant case, the "Don Juan," had it taken seriously its duty of
extraordinary diligence, could have easily avoided the collision with
the "Tacloban City," Indeed, the "Don Juan" might well have
avoided the collision even if it had exercised ordinary diligence
merely.
It is true that the "Tacloban City" failed to follow Rule 18 of the
International Rules of the Road which requires two (2) power- driven
vessels meeting end on or nearly end on each to alter her course to
starboard (right) so that each vessel may pass on the port side
(left) of the other. 21 The "Tacloban City," when the two (2) vessels
were only three-tenths (0.3) of a mile apart, turned (for the second
time) 150 to port side while the "Don Juan" veered hard to
starboard. This circumstance, while it may have made the collision
immediately inevitable, cannot, however, be viewed in isolation
On appeal, the Court of Appeals could have and should have itself
broken down the lump sum award of the trial court into its
constituent parts; perhaps, it did, in its own mind. In any case, the
Court of Appeals apparently relying uponManchester Development
Corporation V. Court of Appeals 27 reduced the P400,000.00 lump
sum award into a P100,000.00 for actual and compensatory
damages only.
We believe that the Court of Appeals erred in doing so, It is true
that the petitioners' complaint before the trial court had in the body
indicated that the petitioner-plaintiffs believed that moral damages
in the amount of at least P1,400,000.00 were properly due to them
(not P12,000,000.00 as the Court of Appeals erroneously stated) as
well as exemplary damages in the sum of P100,000.00 and that in
the prayer of their complaint, they did not specify the amount of
moral and exemplary damages sought from the trial court. We do
not believe, however, that the Manchester doctrine, which has
been modified and clarified in subsequent decision by the Court
in Sun Insurance Office, Ltd. (SIOL), et al. v. Asuncion, et al. 28 can
be applied in the instant case so as to work a striking out of that
portion of the trial court's award which could be deemed nationally
to
constitute
an
award
of
moral
and
exemplary
damages. Manchester was promulgated by the Court on 7 May
1987. Circular No. 7 of this Court, which embodied the doctrine
in Manchester, is dated 24 March 1988. Upon the other hand, the
complaint in the case at bar was filed on 29December 1980, that is,
long before either Manchester or Circular No. 7 of 24 March 1988
emerged. The decision of the trial court was itself promulgated on
17 July 1986, again, before Manchester and Circular No. 7 were
promulgated. We do not believe that Manchester should have been
applied retroactively to this case where a decision on the merits
had already been rendered by the trial court, even though such
decision was then under appeal and had not yet reached finality.
There is noindication at all that petitioners here sought simply to
evade payment of the court's filing fees or to mislead the court in
the assessment of the filing fees. In any event, we
apply Manchester as clarified and amplified by Sun Insurance
Office Ltd. (SIOL), by holding that the petitioners shall pay the
additional filing fee that is properly payable given the award
specified below, and that such additional filing fee shall constitute a
lien upon the judgment.
We consider, finally, the amount of damages-compensatory, moral
and exemplary-properly imposable upon private respondents in this
case. The original award of the trial court of P400,000.00 could well
1975. 3 The Station Agent likewise informed them that Flight 560
bound for Manila would make a stop-over at Cebu to bring some of
the diverted passengers; that there were only six (6) seats
available as there were already confirmed passengers for Manila;
and, that the basis for priority would be the check-in sequence at
Cebu.
477 chose to take Flight 560; that its Station Agent explained in a
courteous and polite manner to all passengers the reason for PAL's
inability to transport all of them back to Cebu; that the stranded
passengers agreed to avail of the options and had their respective
tickets exchanged for their onward trips; that it was only the private
respondent who insisted on being given priority in the
accommodation; that pieces of checked-in baggage and had carried
items of the Ozamiz City passengers were removed from the
aircraft; that the reason for their pilot's inability to land at Ozamis
City airport was because the runway was wet due to rains thus
posing a threat to the safety of both passengers and aircraft; and,
that such reason of force majeure was a valid justification for the
pilot to bypass Ozamiz City and proceed directly to Cotabato City.
On 4 June 1981, the trial court rendered its decision
dispositive portion of which states:
10
the
15
the fact that the private respondent was a stranger to the place. As
the appellate court correctly ruled
COURT:
Q What do you mean by "yes"? You meant you
were not informed?
25
SO ORDERED.
G.R. No. 95582 October 7, 1991
DANGWA TRANSPORTATION CO., INC. and THEODORE
LARDIZABAL y MALECDAN, petitioners, vs. COURT OF
APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT BANDOY,
FERNANDO CUDLAMAT, MARRIETA CUDIAMAT, NORMA
CUDIAMAT, DANTE CUDIAMAT, SAMUEL CUDIAMAT and
LIGAYA CUDIAMAT, all Heirs of the late Pedrito Cudiamat
represented by Inocencia Cudiamat, respondents.
REGALADO, J.:p
On May 13, 1985, private respondents filed a complaint 1 for
damages against petitioners for the death of Pedrito Cudiamat as a
result of a vehicular accident which occurred on March 25, 1985 at
fact, it was only after the refrigerator was unloaded that one of the
passengers thought of sending somebody to the house of the
victim, as shown by the testimony of Virginia Abalos again, to wit:
Q Why, what happened to your refrigerator at that
particular time?
A I asked them to bring it down because that is the
nearest place to our house and when I went down
and asked somebody to bring down the refrigerator, I
also asked somebody to call the family of Mr.
Cudiamat.
COURT:
SO ORDERED.
Q Why did you ask somebody to call the family of Mr.
Cudiamat?
A Because Mr. Cudiamat met an accident, so I ask
somebody to call for the family of Mr. Cudiamat.
Q But nobody ask(ed) you to call for the family of Mr.
Cudiamat?
A No sir. 21
With respect to the award of damages, an oversight was, however,
committed by respondent Court of Appeals in computing the actual
damages based on the gross income of the victim. The rule is that
the amount recoverable by the heirs of a victim of a tort is not the
loss of the entire earnings, but rather the loss of that portion of the
earnings which the beneficiary would have received. In other
words, only net earnings, not gross earnings, are to be considered,
that is, the total of the earnings less expenses necessary in the
creation of such earnings or income and minus living and other
incidental expenses. 22
We are of the opinion that the deductible living and other expense
of the deceased may fairly and reasonably be fixed at P500.00 a
month or P6,000.00 a year. In adjudicating the actual or
BY
"II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING
THAT PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR
NAVIDAD, JR.
MEDIALDEA, J.:
which is the right of way of vehicles coming from the north, among
which was Bus No. 753 of petitioner Philippine Rabbit Bus Lines,
Inc. (Rabbit) driven by Tomas delos Reyes. Almost at the time when
the jeepney made a sudden U-turn and encroached on the western
lane of the highway as claimed by Rabbit and delos Reyes, or after
stopping for a couple of minutes as claimed by Mangune, Carreon
and Manalo, the bus bumped from behind the right rear portion of
the jeepney. As a result of the collision, three passengers of the
jeepney (Catalina Pascua, Erlinda Meriales and Adelaida Estomo)
died while the other jeepney passengers sustained physical
injuries. What could have been a festive Christmas turned out to be
tragic.
The causes of the death of the three jeepney passengers were as
follows (p. 101, Record on Appeal):
The deceased Catalina Pascua suffered the following
injuries, to wit: fracture of the left parietal and
temporal regions of the skull; fracture of the left
mandible; fracture of the right humenous; compound
fracture of the left radious and ullma middle third
and lower third; fracture of the upper third of the
right tibia and fillnea; avulsion of the head, left
internal; and multiple abrasions. The cause of her
death was shock, secondary to fracture and multiple
hemorrhage. The fractures were produced as a result
of the hitting of the victim by a strong force. The
abrasions could be produced when a person falls
from a moving vehicles (sic) and rubs parts of her
body against a cement road pavement. . . .
Erlinda Mariles (sic) sustained external lesions such
as contusion on the left parietal region of the skull;
hematoma on the right upper lid; and abrasions (sic)
on the left knee. Her internal lesions were:
hematoma on the left thorax; multiple lacerations of
the left lower lobe of the lungs; contusions on the left
lower lobe of the lungs; and simple fractures of the
2nd, 3rd, 4th, 5th, 6th, 7th, and 8th ribs, left. The
c) Actual
800.00
damages
(burial
expenses)
Total P10,550.00
Total P41,500.00
damages
(burial
expenses)
SO ORDERED.
The motion for reconsideration was denied. Hence, the
present petition.
The issue is who is liable for the death and physical injuries
suffered by the passengers of the jeepney?
The trial court, in declaring that Manalo was negligent, considered
the following (p. 106, Record on Appeal):
Total P65,500.00
For the death of Florida Sarmiento Estomo:
Civil Case No. 1140
a) Indemnity for loss of life P12,000.00
b) Loss of Salary or Earning capacity 20,000.00
c) Actual damages (burial expenses) 500.00
d) Moral damages 3,000.00
e) Exemplary damages 3,000.00
f) Attorney's fees 3,000.00
respondent court did not realize that the presumption was rebutted
by this piece of evidence.
With regard to the substantial factor test, it was the opinion of the
respondent court that (p. 52, Rollo):
. . . It is the rule under the substantial factor test that
if the actor's conduct is a substantial factor in
bringing about harm to another, the fact that the
actor neither foresaw nor should have foreseen the
extent of the harm or the manner in which it
occurred does not prevent him from being liable
(Restatement, Torts, 2d). Here, We find defendant
bus running at a fast speed when the accident
occurred and did not even make the slightest effort
to avoid the accident, . . . . The bus driver's conduct
is thus a substantial factor in bringing about harm to
the passengers of the jeepney, not only because he
was driving fast and did not even attempt to avoid
the mishap but also because it was the bus which
was the physical force which brought about the injury
and death to the passengers of the jeepney.
The speed of the bus was calculated by respondent court as follows
(pp. 54-55, Rollo):
According to the record of the case, the bus departed
from Laoag, Ilocos Norte, at 4:00 o'clock A.M. and the
accident took place at approximately around 12:30
P.M., after travelling roughly for 8 hours and 30
minutes. Deduct from this the actual stopover time of
two Hours (computed from the testimony of the
driver that he made three 40-minute stop-overs), We
will have an actual travelling time of 6 hours and 30
minutes.
Under the circumstances, We calculate that the
Laoag-Tarlac route (365 kms.) driving at an average
of 56 km. per hour would take 6 hours and 30
minutes. Therefore, the average speed of the bus,
failed to exercise the precautions that are needed precisely pro hac
vice.
The trial court was therefore right in finding that Manalo and
spouses Mangune and Carreon were negligent. However, its ruling
that spouses Mangune and Carreon are jointly and severally liable
with Manalo is erroneous The driver cannot be held jointly and
severally liable with the carrier in case of breach of the contract of
carriage. The rationale behind this is readily discernible. Firstly, 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 his driver (see Viluan v. The Court of Appeals,
et al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742). In other
words, the carrier can neither shift his liability on the contract to his
driver nor share it with him, for his driver's negligence is
his. 4 Secondly, if We make the driver jointly and severally liable
with the carrier, that would make the carrier's liability personal
instead of merely vicarious and consequently, entitled to recover
only the share which corresponds to the driver, 5 contradictory to
the explicit provision of Article 2181 of the New Civil Code. 6
and driver of the pick-up owes to them merely the duty to exercise
reasonable care so that they may be transported safely to their
destination. Thus, "The rule is established by the weight of
authority that the owner or operator of an automobile owes the
duty to an invited guest to exercise reasonable care in its
operation, and not unreasonably to expose him to danger and
injury by increasing the hazard of travel. This rule, as frequently
stated by the courts, is that an owner of an automobile owes a
guest the duty to exercise ordinary or reasonable care to avoid
injuring him. Since one riding in an automobile is no less a guest
because he asked for the privilege of doing so, the same obligation
of care is imposed upon the driver as in the case of one expressly
invited to ride" (5 Am. Jur., 626-627). Defendant, therefore, is only
required to observe ordinary care, and is not in duty bound to
exercise extraordinary diligence as required of a common carrier by
our law (Articles 1755 and 1756, new Civil Code).
The question that now arises is: Is there enough evidence to show
that defendant failed to observe ordinary care or diligence in
transporting the deceased from Parang to Davao on the date in
question?
The trial court answered the question in the affirmative but in so
doing it took into account only the following facts:
No debe perderse de vista el hecho, que los negocios de
exportacion de trozos del demandado tiene un volumen de
P1,200. Lara era empleado de la Oficina de Montes,
asalariado por el gobierno, no pagado por el demandado
para classificar los trozos exportados; debido a los trabajos
de classificacion que duro 6 dias, en su ultimo dia Lara no
durmio toda la noche, al dia siguiente, Lara fue atacado de
malaria, tenia inflamada la cara y cuerpo, sufria dolores de
cabeza con erupciones en la cara y cuerpo; que en la
manana, del dia 2 de enero de 1954, fecha en que Lara salio
de Davao para Parang, en aeroplano para clasificar los
trozos del demandado, el automobil de este condujo a aquel
al aerodromo de Davao.
xxx
xxx
xxx
Under Article 1733 of the Civil Code, common carriers are required
to observe extraordinary diligence for the safety of the passenger
transported by them, according to all the circumstances of each
case. The requirement of extraordinary diligence imposed upon
common carriers is restated in Article 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 due regard for all the circumstances." Further, in case
of death of or injuries to passengers, the law presumes said
common carriers to be at fault or to have acted negligently. 2
While the law requires the highest degree of diligence from
common carriers in the safe transport of their passengers and
creates a presumption of negligence against them, it does not,
however, make the carrier an insurer of the absolute safety of its
passengers. 3
Article 1755 of the Civil Code qualifies the duty of extraordinary
care, vigilance and precaution in the carriage of passengers by
common carriers to only such as human care and foresight can
provide. what constitutes compliance with said duty is adjudged
with due regard to all the circumstances.
Article 1756 of the Civil Code, in creating a presumption of fault or
negligence on the part of the common carrier when its passenger is
injured, merely relieves the latter, for the time being, from
introducing evidence to fasten the negligence on the former,
because the presumption stands in the place of evidence. Being a
mere presumption, however, the same is rebuttable by proof that
the common carrier had exercised extraordinary diligence as
required by law in the performance of its contractual obligation, or
that the injury suffered by the passenger was solely due to a
fortuitous event. 4
In fine, we can only infer from the law the intention of the Code
Commission and Congress to curb the recklessness of drivers and
operators of common carriers in the conduct of their business.
Thus, it is clear that neither the law nor the nature of the business
of a transportation company makes it an insurer of the passenger's
safety, but that its liability for personal injuries sustained by its
passenger rests upon its negligence, its failure to exercise the
degree of diligence that the law requires. 5
Petitioner contends that respondent common carrier failed to rebut
the presumption of negligence against it by proof on its part that it
exercised extraordinary diligence for the safety of its passengers.
We do not agree.
First, as stated earlier, the presumption of fault or negligence
against the carrier is only a disputable presumption. It gives in
where contrary facts are established proving either that the carrier
had exercised the degree of diligence required by law or the injury
suffered by the passenger was due to a fortuitous event. Where, as
in the instant case, the injury sustained by the petitioner was in no
way due to any defect in the means of transport or in the method
of transporting or to the negligent or willful acts of private
respondent's employees, and therefore involving no issue of
negligence in its duty to provide safe and suitable cars as well as
competent employees, with the injury arising wholly from causes
created by strangers over which the carrier had no control or even
knowledge or could not have prevented, the presumption is
rebutted and the carrier is not and ought not to be held liable. To
rule otherwise would make the common carrier the insurer of the
absolute safety of its passengers which is not the intention of the
lawmakers.
Second, while as a general rule, common carriers are bound to
exercise extraordinary diligence in the safe transport of their
passengers, it would seem that this is not the standard by which its
liability is to be determined when intervening acts of strangers is to
be determined directly cause the injury, while the contract of
carriage Article 1763 governs:
Article 1763. A common carrier is responsible for
injuries suffered by a passenger on account of the
wilful acts or negligence of other passengers or of
strangers, if the common carrier's employees
through the exercise of the diligence of a good father
for the death of his minor daughter Raquel Beltran, plus P400.00 as
actual damages.
The facts of the case as found by the Court of Appeals, briefly are:
On December 20, 1953, at about noontime, plaintiffs,
husband and wife, together with their minor daughters,
namely, Milagros, 13 years old, Raquel, about 4 years old,
and Fe, over 2 years old, boarded the Pambusco Bus No.
352, bearing plate TPU No. 757 (1953 Pampanga), owned
and operated by the defendant, at San Fernando,
Pampanga, bound for Anao, Mexico, Pampanga. At the time,
they were carrying with them four pieces of baggages
containing their personal belonging. The conductor of the
bus, who happened to be a half-brother of plaintiff Mariano
Beltran, issued three tickets (Exhs. A, B, & C) covering the
full fares of the plaintiff and their eldest child, Milagros. No
fare was charged on Raquel and Fe, since both were below
the height at which fare is charged in accordance with the
appellant's rules and regulations.
After about an hour's trip, the bus reached Anao whereat it
stopped to allow the passengers bound therefor, among
whom were the plaintiffs and their children to get off. With
respect to the group of the plaintiffs, Mariano Beltran, then
carrying some of their baggages, was the first to get down
the bus, followed by his wife and his children. Mariano led
his companions to a shaded spot on the left pedestrians side
of the road about four or five meters away from the vehicle.
Afterwards, he returned to the bus in controversy to get his
other bayong, which he had left behind, but in so doing, his
daughter Raquel followed him, unnoticed by her father.
While said Mariano Beltran was on the running board of the
bus waiting for the conductor to hand him his bayong which
he left under one of its seats near the door, the bus, whose
motor was not shut off while unloading, suddenly started
moving
forward,
evidently
to
resume
its
trip,
notwithstanding the fact that the conductor has not given
the driver the customary signal to start, since said
conductor was still attending to the baggage left behind by
The rule is that 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 or premises. 11 Once created, the
relationship will not ordinarily terminate until the passenger has,
after reaching his destination, safely alighted from the carrier's
conveyance or had a 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 a reasonable time or a reasonable delay within this rule
is to be determined from all the circumstances, and includes a
reasonable time to see after his baggage and prepare for his
departure. 12 The carrier-passenger relationship is not terminated
merely by the fact that the person transported has been carried to
his destination if, for example, such person remains in the carrier's
premises to claim his baggage. 13
It was in accordance with this rationale that the doctrine in the
aforesaid case of La Mallorca was enunciated, to wit:
It has been recognized as a rule that the relation of
carrier and passenger does not cease at the moment
the passenger alights from the carrier's vehicle at a
place selected by the carrier at the point of
destination, but continues until the passenger has
had a reasonable time or a reasonable opportunity to
leave the carrier's premises. And, what is a
reasonable time or a reasonable delay within this
rule is to be determined from all the circumstances.
Thus, a person who, after alighting from a train,
walks along the station platform is considered still a
passenger. So also, where a passenger has alighted
at his destination and is proceeding by the usual way
to leave the company's premises, but before actually
doing so is halted by the report that his brother, a
fellow passenger, has been shot, and he in good faith
and without intent of engaging in the difficulty,
returns to relieve his brother, he is deemed
reasonably and necessarily delayed and thus
continues to be a passenger entitled as such to the
protection of the railroad company and its agents.
It is not definitely shown that one (1) hour prior to the incident, the
victim had already disembarked from the vessel. Petitioner failed to
prove this. What is clear to us is that at the time the victim was
taking his cargoes, the vessel had already docked an hour earlier.
In consonance with common shipping procedure as to the minimum
time of one (1) hour allowed for the passengers to disembark, it
may be presumed that the victim had just gotten off the vessel
when he went to retrieve his baggage. Yet, even if he had already
disembarked an hour earlier, his presence in petitioner's premises
was not without cause. The victim had to claim his baggage which
was possible only one (1) hour after the vessel arrived since it was
admittedly standard procedure in the case of petitioner's vessels
that the unloading operations shall start only after that time.
Consequently, under the foregoing circumstances, the victim
Anacleto Viana is still deemed a passenger of said carrier at the
time of his tragic death.
II. Under the law, common carriers are, from the nature of their
business and for reasons of public policy, bound to observe
extraordinary diligence in the vigilance over the goods and for the
party complaint only after ten (10) months from the institution of
the suit against it. Parenthetically, Pioneer is not within the ambit of
the rule on extraordinary diligence required of, and the
corresponding presumption of negligence foisted on, common
carriers like Aboitiz. This, of course, does not detract from what we
have said that no negligence can be imputed to Pioneer but, that
on the contrary, the failure of Aboitiz to exercise extraordinary
diligence for the safety of its passenger is the rationale for our
finding on its liability.
WHEREFORE, the petition is DENIED and the judgment appealed
from is hereby AFFIRMED in toto.
SO ORDERED.
Under the first, which is the minority view, the carrier is liable only
when the act of the employee is within the scope of his authority
and duty. It is not sufficient that the act be within the course of
employment only.4
Under the second view, upheld by the majority and also by the later
cases, it is enough that the assault happens within the course of
the employee's duty. It is no defense for the carrier that the act was
done in excess of authority or in disobedience of the carrier's
orders.5 The carrier's liability here is absolute in the sense that it
practically secures the passengers from assaults committed by its
own employees.6
As can be gleaned from Art. 1759, the Civil Code of the Philippines
evidently follows the rule based on the second view. At least three
very cogent reasons underlie this rule. As explained in Texas
Midland R.R. v. Monroe, 110 Tex. 97, 216 S.W. 388, 389-390,
and Haver v. Central Railroad Co., 43 LRA 84, 85: (1) the special
undertaking of the carrier requires that it furnish its passenger that
full measure of protection afforded by the exercise of the high
degree of care prescribed by the law, inter alia from violence and
insults at the hands of strangers and other passengers, but above
all, from the acts of the carrier's own servants charged with the
passenger's safety; (2) said liability of the carrier for the servant's
violation of duty to passengers, is the result of the formers
confiding in the servant's hands the performance of his contract to
safely transport the passenger, delegating therewith the duty of
Applying this stringent norm to the facts in this case, therefore, the
lower court rightly adjudged the defendant carrier liable pursuant
to Art. 1759 of the Civil Code. The dismissal of the claim against the
defendant driver was also correct. Plaintiff's action was predicated
on breach of contract of carriage7 and the cab driver was not a
party thereto. His civil liability is covered in the criminal case
wherein he was convicted by final judgment.
In connection with the award of damages, the court a quo granted
only P3,000 to plaintiff-appellant. This is the minimum
compensatory damages amount recoverable under Art. 1764 in
connection with Art. 2206 of the Civil Code when a breach of
contract results in the passenger's death. As has been the policy
followed by this Court, this minimal award should be increased to
P6,000. As to other alleged actual damages, the lower court's
finding
that
plaintiff's
evidence
thereon
was
not
convincing,8 should not be disturbed. Still, Arts. 2206 and 1764
awardmoral damages in addition to compensatory damages, to the
parents of the passenger killed to compensate for the mental
anguish they suffered. A claim therefor, having been properly
made, it becomes the court's duty to award moral
damages.9 Plaintiff demands P5,000 as moral damages; however,
in the circumstances, We consider P3,000 moral damages, in
addition to the P6,000 damages afore-stated, as sufficient. Interest
upon such damages are also due to plaintiff-appellant. 10
Wherefore, with the modification increasing the award of actual
damages in plaintiff's favor to P6,000, plus P3,000.00 moral
et al., 3 then Justice Fernando, later Chief Justice, said. "The main
issue posed in this certiorari proceeding, whether or not the funds
of the Philippine National Railways, could be garnished or levied
upon on execution was resolved in two recent decisions,
the Philippine National Bank v. Court of Industrial Relations [81
SCRA 314] and Philippine National Bank v. Hon. Judge Pabalan [83
SCRA 595]. This Court in both cases answered the question in the
affirmative. There was no legal bar to garnishment or execution.
The argument based on non-suability of a state allegedly because
the funds are governmental in character was unavailing.So it must
be again."
In support of the above conclusion, Justice Fernando cited the
Court's holding in Philippine National Bank v. Court of Industrial
Relations, to wit: "The premise that the funds could be spoken of as
public in character may be accepted in the sense that the People's
Homesite and Housing Corporation was a government-owned
entity. It does not follow though that they were exempt from
garnishment. National Shipyard and Steel Corporation v. Court of
Industrial Relations is squarely in point. As was explicitly stated in
the opinion of then Justice, later Chief Justice, Concepcion: "The
allegation to the effect that the funds of the NASSCO are public
funds of the government, and that, as such, the same may not be
garnished, attached or levied upon, is untenable for, as a
government- owned and controlled corporation, the NASSCO has a
personality of its own, distinct and separate from that of the
Government. It has-pursuant to Section 2 of Executive Order No.
356, dated October 23, 1950 * * *, pursuant to which the NASSCO
has been established- 'all the powers of a corporation under the
Corporation Law * * *. 4
As far back as 1941, this Court in the case of Manila Hotel
Employees Association v. Manila Hotel Co., 5 laid down the rule that
"when the government enters into commercial business, it
abandons its sovereign capacity and is to be treated like any other
corporation. [Bank of the U.S. v. Planters' Bank, 9 Waitch 904, 6 L.
ed. 244]. By engaging in a particular business through the
instrumentality of a corporation the government divests itself pro
hac vice of its sovereign character, so as to render the corporation
subject to the rules of law governing private corporations. 6 Of
The appellate court found, the petitioner does not deny, that the
train boarded by the deceased Winifredo Tupang was so overcrowded that he and many other passengers had no choice but to
sit on the open platforms between the coaches of the train. It is
likewise undisputed that the train did not even slow down when it
approached the Iyam Bridge which was under repair at the time,
Neither did the train stop, despite the alarm raised by other
passengers that a person had fallen off the train at lyam Bridge. 7
The petitioner has the obligation to transport its passengers to their
destinations and to observe extraordinary diligence in doing so.
Death or any injury suffered by any of its passengers gives rise to
the presumption that it was negligent in the performance of its
obligation under the contract of carriage. Thus, as correctly ruled
by the respondent court, the petitioner failed to overthrow such
presumption of negligence with clear and convincing evidence.
But while petitioner failed to exercise extraordinary diligence as
required by law, 8 it appears that the deceased was chargeable
with contributory negligence. Since he opted to sit on the open
platform between the coaches of the train, he should have held
tightly and tenaciously on the upright metal bar found at the side of
said platform to avoid falling off from the speeding train. Such
contributory negligence, while not exempting the PNR from liability,
nevertheless justified the deletion of the amount adjudicated as
moral damages. By the same token, the award of exemplary
damages must be set aside. Exemplary damages may be allowed
only in cases where the defendant acted in a wanton, fraudulent,
reckless, oppressive or malevolent manner. 9 There being no
evidence of fraud, malice or bad faith on the part of petitioner, the
grant of exemplary damages should be discarded.
WHEREFORE, the decision of the respondent appellate court is
hereby modified by eliminating therefrom the amounts of
June 18, 1985 denying the motion for reconsideration of the said
decision.
The antecedent facts of this case are as follows:
On January 21, 1979, respondent Henry H. Alcantara shipped
thirteen (13) pieces of luggage through petitioner Lufthansa from
Teheran to Manila as evidenced by Lufthansa Air Waybill No. 2209776-2733 (Exhibit "A", also Exhibit "1"). The Air Waybill discloses
that the actual gross weight of the thirteen (13) pieces of luggage
is 180 kilograms. Respondent Henry H. Alcantara did not declare an
inventory of the contents or the value of the luggages when he
delivered them to Lufthansa.
On March 3, 1979, the thirteen (13) pieces of luggage were
boarded in one of Lufthansa's flights which arrived in Manila on the
same date. After the luggages arrived in Manila, the consignee,
respondent Teresita Alcantara, was able to claim from the cargo
broker Philippine Skylanders, Inc. on March 6, 1979 only twelve (12)
out of the thirteen (13) pieces of luggage with a total weight of 174
kilograms (Exhibits "20" and "20-A").
The private respondents advised Lufthansa of the loss of one of the
luggages and of the contents thereof (Exhibits "B", "C" and "D").
Petitioner Lufthansa sent telex tracing messages to different
stations and to the Philippine Airlines which actually carried the
cargo (Exhibits "3", "5", "7", "9", "11", "12", "13" and "14"). But all
efforts in tracing the missing luggage were fruitless (Exhibits "4",
"6", "8", "10", "12" and "17").
Since efforts to trace the missing luggage yielded negative results,
Lufthansa informed Henry Alcantara accordingly and advised him to
file a claim invoice (Exhibits "18" and "19").
On the other hand, the Court of Appeals found that the lower
court's award of P200,000.00 as actual compensatory damages is
well based factually and legally (Rollo, p. 37) except as to the
deletion of attorney's fees due to the absence of findings of gross
and evident bad faith (Rollo, p. 39).
Petitioners Luna and Alonso then filed a petition for certiorari before
the Court of Appeals to set aside the order of respondent Judge
Cristina M. Estrada granting private respondent's motion to dismiss,
while petitioner Rodriquez proceeded directly to this Court
on certiorari for the same purpose. However, in Our resolution of 26
February 1990, We referred his petition to the Court of Appeals.
All cases arose from the loss of cargoes of various shippers when
the M/V P. Aboitiz, a common carrier owned and operated by
Aboitiz, sank on her voyage from Hong Kong to Manila on October
31, 1980. Seeking indemnification for the loss of their cargoes, the
shippers, their successors-in-interest, and the cargo insurers such
as the instant petitioners filed separate suits against Aboitiz before
the Regional Trial Courts. The claims numbered one hundred and
ten (110) for the total amount of P41,230,115.00 which is almost
thrice the amount of the insurance proceeds of P14,500,000.00
plus earned freight of 500,000.00 according to Aboitiz. To this day,
some of these claims, including those of herein petitioners, have
not yet been settled.
The M/V P. Aboitiz left Hong Kong for Manila at about 7:30 in the
evening of October 29, 1980 after securing a departure clearance
from the Hong Kong Port Authority. The departure was delayed for
two hours because he (Capt. Racines) was observing the direction
of the storm that crossed the Bicol Region. He proceeded with the
voyage only after being informed that the storm had abated. At
about 8:00 o'clock in the morning of October 30, 1980, after more
than twelve (12) hours of navigation, the vessel suddenly
encountered rough seas with waves about fifteen to twenty-five
feet high. He ordered his chief engineer to check the cargo holds.
The latter found that sea water had entered cargo hold Nos. 1 and
2. He immediately directed that water be pumped out by means of
the vessel's bilge pump, a device capable of ejecting 180 gallons of
water per minute. They were initially successful in pumping out the
water.
At 6:00 a.m. of October 31, 1980, however, Capt. Racines received
a report from his chief engineer that the water level in the cargo
holds was rapidly rising. He altered the vessel's course and veered
towards the northern tip of Luzon to prevent the vessel from being
continuously pummeled by the waves. Despite diligent efforts of
the officers and crew, however, the vessel, which was
approximately 250 miles away from the eye of the storm, began to
list on starboard side at 27 degrees. Capt. Racines and his crew
were not able to make as much headway as they wanted because
by 12:00 noon of the same day, the cargo holds were already
flooded with sea water that rose from three to twelve feet, disabling
the bilge pump from containing the water.
The M/V P. Aboitiz sank at about 7:00 p.m. of October 31, 1980 at
latitude 18 degrees North, longitude 170 degrees East in the South
China Sea in between Hong Kong, the Philippines and Taiwan with
the nearest land being the northern tip of Luzon, around 270 miles
from Cape Bojeador, Bangui, Ilocos Norte. Responding to the
captain's distress call, the M/V Kapuas (Capuas) manned by Capt.
Virgilio Gonzales rescued the officers and crew of the ill-fated M/V P.
Aboitiz and brought them to Waileen, Taiwan where Capt. Racines
lodged his marine protest dated November 3, 1980.
Allied and Equitable refuted the allegation that the M/V P. Aboitiz
and its cargo were lost due to force majeure, relying mainly on the
marine protest filed by Capt. Racines as well as on the Beaufort
Scale of Wind. In his marine protest under oath, Capt. Racines
affirmed that the wind force an October 29-30, 1980 was only ten
(10) to fifteen (15) knots. Under the Beaufort Scale of Wind, said
wind velocity falls under scale No. 4 that describes the sea
condition as "moderate breeze," and "small waves becoming
longer, fairly frequent white horses." 26
To fortify its position, Equitable presented Rogelio T. Barboza who
testified that as claims supervisor and processor of Equitable, he
recommended payment to Axel Manufacturing Corporation as
evidenced by the cash voucher, return check and subrogation
receipt. Barboza also presented a letter of demand to Aboitiz which,
however, the latter ignored. 27
On April 24, 1984, the trial court rendered a decision that disposed
of Civil Case No. 138643 as follows:
WHEREFORE, judgment is hereby rendered ordering
defendant Aboitiz Shipping Company to pay plaintiff Allied
Guarantee Insurance Company, Inc. the sum of
P278,536.50, with legal interest thereon from March 10,
1981, then date of the filing of the complaint, until fully
paid, plus P30,000.00 as attorney's fees, with costs of suit.
SO ORDERED. 28
SO ORDERED. 31
Hence, Allied filed the instant petition for certiorari, mandamus and
injunction with preliminary injunction and/or restraining order
before this Court alleging the following assignment of errors:
1. Respondent Court of Appeals gravely erred in staying the
immediate execution of the judgment of the lower court as it
has no authority nor jurisdiction to directly or indirectly
alter, modify, amend, reverse or invalidate a final judgment
as affirmed by the Honorable Supreme Court in G.R. No.
88159.
2. Respondent Court of Appeals with grave abuse of
discretion amounting to lack or excess of jurisdiction,
brushed aside the doctrine in G.R. No. 88159 which is now
the law of the case and observance of time honored
principles of stare decisis, res adjudicata and estoppel by
judgment.
3. Real and hypothecary rule under Articles 587, 590 and
837 of the Code of Commerce which is the basis of the
questioned decision (Annex "C" hereof) is without
application in the face of the facts found by the lower court,
sustained by the Court of Appeals in CA-G.R. No. 04121 and
affirmed in toto by the Supreme Court in G.R. No. 88159.
4. Certiorari as a special remedy is unavailing for private
respondent as there was no grave abuse of discretion nor
lack or excess of jurisdiction for Judge Mabunay to issue the
order of April 4, 1990 which was in accord with law and
jurisprudence, nor were there intervening facts and/or
supervening events that will justify respondent court to
issue a writ of certiorari or a restraining order on a final and
executory judgment of the Honorable Supreme Court. 32
From the decision of the trial court in Civil Case No. 138396 that
favored Equitable, Aboitiz likewise appealed to the Court of Appeals
through CA-G.R. CV No. 15071. On August 24, 1990, the Court of
Appeals rendered the Decision quoting extensively its Decision in
CA-G.R. No. SP-17427 (now G.R. No. 92735) and disposing of the
appeal as follows:
WHEREFORE, we hereby affirm the trial court's awards of
actual damages, attorney's fees and litigation expenses,
with the exception of legal interest, in favor of plaintiffappellee Equitable Insurance Corporation as subrogee of the
consignee for the loss of its shipment aboard the M/V "P.
Aboitiz" and against defendant-appellant Aboitiz Shipping
Corporation. However, the amount and payment of those
awards shall be subject to a determination of the pro-rata
share of said appellee in relation to the pro-rata shares of
the 109 other claimants, which determination shall be made
by the trial court. This case is therefore hereby ordered
remanded to the trial court which shall reopen the case and
receive evidence to determine appellee's pro-rata share as
aforesaid. No pronouncement as to costs.
SO ORDERED. 33
On September 12, 1990, Equitable moved to reconsider the Court
of Appeals' Decision. The Court of Appeals denied the motion for
reconsideration on October 4, 1990. 34 Consequently, Equitable
filed with this Court a petition for review alleging the following
assignment of errors:
1. Respondent Court of Appeals, with grave abuse of
discretion amounting to lack or excess of jurisdiction,
erroneously brushed aside the doctrine in G.R. No. 88159
which is now the law of the case as held in G.R. No. 89757
involving the same and identical set of facts and cause of
action relative to the sinking of the M/V "P. Aboitiz" and
observance of the time honored principles of stare decisis,
and estoppel by judgment.
2. Real and hypothecary rule under Articles 587, 590 and
837 of the Code of Commerce which is the basis of the
assailed decision and resolution is without application in the
face of the facts found by the trial court which conforms to
the conclusion and finding of facts arrived at in a similar and
xxx
xxx
92735 in the lower court and all the way to the Supreme Court,
Aboitiz had not presented an iota of evidence to exculpate itself
from the charge of negligence for the simple reason that it was
declared as in default. 43
It should also be pointed out that Aboitiz is not raising the issue of
its entitlement to the limited liability rule for the first time on
appeal thus, the respondent Court of Appeals may properly rule on
the same.
It should be noted that Aboitiz was declared as in default not for its
failure to file an answer but for its absence during pre-trial and the
trial proper. In Aboitiz' answer with counterclaim, it claimed that the
sinking of the M/V P. Aboitiz was due to an act of God or unforeseen
event and that the said ship had been seaworthy and fit for the
voyage. Aboitiz also alleged that it exercised the due diligence
required by law, and that considering the real and hypothecary
nature of maritime trade, the sinking justified the extinguishment
of its liability for the lost shipment. 44
A judgment of default does not imply a waiver of rights except that
of being heard and presenting evidence in defendant's favor. It
does not imply admission by the defendant of the facts and causes
of action of the plaintiff, because the codal section 45 requires the
latter to adduce evidence in support of his allegations as an
indispensable condition before final judgment could be given in his
favor. Nor could it be interpreted as an admission by the defendant
that the plaintiff's causes of action find support in the law or that
the latter is entitled to the relief prayed for. 46 This is especially
true with respect to a defendant who had filed his answer but had
been subsequently declared in default for failing to appear at the
trial since he has had an opportunity to traverse, viahis answer, the
material averments contained in the complaint. Such defendant
has a better standing than a defendant who has neither answered
nor appeared at trial. 47 The former should be allowed to reiterate
all affirmative defenses pleaded in his answer before the Court of
Appeals. Likewise, the Court of Appeals may review the correctness
of the evaluation of the plaintiffs evidence by the lower court.
A finding that a fortuitous event was the sole cause of the loss of
the M/V P. Aboitiz would absolve Aboitiz from any and all liability
pursuant to Article 1734(1) of the Civil Code which provides in part
that common carriers are responsible for the loss, destruction, or
deterioration of the goods they carry, unless the same is due to
flood, storm, earthquake, lightning, or other natural disaster or
calamity. On the other hand, a finding that the M/V P. Aboitiz sank
by reason of fault and/or negligence of Aboitiz, the ship captain and
crew of the M/V P. Aboitiz would render inapplicable the rule on
limited liability. These issues are therefore ultimately questions of
fact which have been subject of conflicting determinations by the
trial courts, the Court of Appeals and even this Court.
In Civil Cases Nos. 82-2767-82-2770 (now G.R. No. 92735), after
receiving Monarch's and Tabacalera's evidence, the trial court
found that the complete loss of the shipment on board the M/V P.
Aboitiz when it sank was neither due to a fortuitous event nor a
storm or natural cause. For Aboitiz' failure to present controverting
evidence, the trial court also upheld petitioners' allegation that the
M/V P. Aboitiz was unseaworthy. 55 However, on appeal, respondent
Court of Appeals exculpated Aboitiz from fault or negligence and
ruled that:
. . ., even if she (M/V P. Aboitiz) was found to be
unseaworthy, this fault (distinguished from civil liability)
cannot be laid on the shipowner's door. Such fault was
directly attributable to the captain. This is so, because under
Art. 612 of the Code of Commerce, among the inherent
however mean that the limited liability rule will not be applied to
the present cases. The peculiar circumstances here demand that
there should be no strict adherence to procedural rules on evidence
lest the just claims of shippers/insurers be frustrated. The rule on
limited liability should be applied in accordance with the latest
ruling inAboitiz Shipping Corporation v. General Accident Fire and
Life Assurance Corporation, Ltd., 80 promulgated on January 21,
1993, that claimants be treated as "creditors in an insolvent
corporation whose assets are not enough to satisfy the totality of
claims against it." 81 To do so, the Court set out in that case the
procedural guidelines:
In the instant case, there is, therefore, a need to collate all
claims preparatory to their satisfaction from the insurance
proceeds on the vessel M/V P. Aboitiz and its pending
freightage at the time of its loss. No claimant can be given
precedence over the others by the simple expedience of
having completed its action earlier than the rest. Thus,
execution of judgment in earlier completed cases, even
these already final and executory must be stayed pending
completion of all cases occasioned by the subject sinking.
Then and only then can all such claims be simultaneously
settled, either completely or pro-rata should the insurance
proceeds and freightage be not enough to satisfy all claims.
xxx
xxx
xxx
earned. The pendency of the instant cases before the Court is not a
reason for Aboitiz to disregard the aforementioned order of the
Court. In fact, had Aboitiz complied therewith, even these cases
could have been terminated earlier. We are inclined to believe that
instead of filing the suit as directed by this Court, Aboitiz tolerated
the situation of several claimants waiting to gel hold of its
insurance proceeds, which, if correctly handled must have
multiplied in amount by now. By its failure to abide by the order of
this Court, it had caused more damage to the claimants over and
above that which they have endured as a direct consequence of the
sinking of the M/V P. Aboitiz. It was obvious that from among the
many cases filed against it over the years, Aboitiz was waiting for a
judgment that might prove favorable to it, in blatant violation of the
basic provisions of the Civil Code on abuse of rights.
Well aware of the 110 claimants against it, Aboitiz preferred to
litigate the claims singly rather than exert effort towards the
consolidation of all claims. Consequently, courts have arrived at
conflicting decisions while claimants waited over the years for a
resolution of any of the cases that would lead to the eventual
resolution of the rest. Aboitiz failed to give the claimants their due
and to observe honesty and good faith in the exercise of its
rights. 83
Aboitiz' blatant disregard of the order of this Court in Aboitiz
Shipping Corporation v. General Accident Fire and Life Assurance
Corporation, Ltd. 84 cannot be anything but, willful on its part. An
act is considered willful if it is done with knowledge of its injurious
effect; it is not required that the act be done purposely to produce
the injury.85 Aboitiz is well aware that by not instituting the said
suit, it caused the delay in the resolution of all claims against it.
Having willfully caused loss or injury to the petitioners in a manner
that is contrary to morals, good customs or public policy, Aboitiz is
liable for damages to the latter. 86
Thus, for its contumacious act of defying the order of this Court to
file the appropriate action to consolidate all claims for settlement,
Aboitiz must be held liable for moral damages which may be
awarded in appropriate cases under the Chapter on human
relations of the Civil Code (Articles 19 to 36). 87
This refers to a petition for review which seeks to annul and set
aside the decision of the Court of Appeals dated June 21, 1991, in
CA G.R. SP No. 24918. The appellate court dismissed the petition
for certiorari filed
by
herein
petitioner,
Aboitiz
Shipping
case. While the matters threshed out in G.R. No. 88159, particularly
those dealing with the issues on primary administrative jurisdiction
and the package liability limitation provided in the Bill of Lading are
now settled and should no longer be touched, the instant case
raises a completely different issue. It appears, therefore, that the
resolution in G.R. 88159 adverted to has no bearing other than
factual to the instant case.
This brings us to the primary question herein which is whether or
not respondent court erred in granting execution of the full
judgment award in Civil Case No. 14425 (G.R. No. 89757), thus
effectively denying the application of the limited liability
enunciated under the appropriate articles of the Code of
Commerce. The articles may be ancient, but they are timeless and
have remained to be good law. Collaterally, determination of the
question of whether execution of judgments which have become
final and executory may be stayed is also an issue.
We shall tackle the latter issue first. This Court has always been
consistent in its stand that the very purpose for its existence is to
see to the accomplishment of the ends of justice. Consistent with
this view, a number of decisions have originated herefrom, the
tenor of which is that no procedural consideration is sacrosanct if
such shall result in the subverting of substantial justice. The right to
an execution after finality of a decision is certainly no exception to
this. Thus, in Cabrias v. Adil (135 SCRA 355 [1985]), this Court ruled
that:
. . . It is a truism that every court has the power "to
control, in the furtherance of justice, the conduct of
its ministerial officers, and of all other persons in any
manner connected with a case before it, in every
manner appertaining thereto. It has also been said
that:
. . . every court having jurisdiction to render a
particular judgment has inherent power to
enforce it, and to exercise equitable control
over such enforcement. The court has
authority to inquire whether its judgment has
and
1. The owner of a sea-going ship may limit his
liability in accordance with Article 3 of this
Convention in respect of claims arising, from any of
the following occurrences, unless the occurrence
giving rise to the claim resulted from the actual fault
or privity of the owner;
(a) loss of life of, or personal injury to, any person
being carried in the ship, and loss of, or damage to,
any property on board the ship.
(b) loss of life of, or personal injury to, any other
person, whether on land or on water, loss of or
damage to any other property or infringement of any
rights caused by the act, neglect or default the
owner is responsible for, or any person not on board
In this jurisdiction, on the other hand, its application has been wellnigh constricted by the very statute from which it originates. The
Limited Liability Rule in the Philippines is taken up in Book III of the
Code of Commerce, particularly in Articles 587, 590, and 837,
hereunder quoted in toto:
Art. 587. The ship agent shall also be civilly liable for
the indemnities in favor of third persons which may
arise from the conduct of the captain in the care of
the goods which he loaded on the vessel; but he may
exempt himself therefrom by abandoning the vessel
with all her equipment and the freight it may have
earned during the voyage.
Art. 590. The co-owners of a vessel shall be civilly
liable in the proportion of their interests in the
common fund for the results of the acts of the
captain referred to in Art. 587.
preclude the trial courts from making their own findings of fact in
those cases and deciding the same by allotting shares for these
claims, some of which, after all, might not prevail, depending on
the evidence presented in each. We, therefore, rule that the prorated share of each claim can only be found after all the cases shall
have been decided.
In fairness to the claimants, and as a matter of equity, the total
proceeds of the insurance and pending freightage should now be
deposited in trust. Moreover, petitioner should institute the
necessary limitation and distribution action before the proper
admiralty court within 15 days from the finality of this decision, and
thereafter deposit with it the proceeds from the insurance company
and pending freightage in order to safeguard the same pending
final resolution of all incidents, for final pro-rating and settlement
thereof.
ACCORDINGLY, the petition is hereby GRANTED, and the Orders of
the Regional Trial Court of Manila, Branch IV dated April 30, 1991
and the Court of Appeals dated June 21, 1991 are hereby set aside.
The trial court is hereby directed to desist from proceeding with the
execution of the judgment rendered in Civil Case No. 144425
pending determination of the totality of claims recoverable from
the petitioner as the owner of the M/V P. Aboitiz. Petitioner is
directed to institute the necessary action and to deposit the
proceeds of the insurance of subject vessel as above-described
within fifteen (15) days from finality of this decision. The temporary
restraining order issued in this case dated August 7, 1991 is hereby
made permanent. SO ORDERED.
It took eleven (11) days for PPI to unload the cargo, from 5 July to
18 July 1974 (except July 12th, 14th and 18th).10 A private marine
and cargo surveyor, Cargo Superintendents Company Inc. (CSCI),
was hired by PPI to determine the "outturn" of the cargo shipped,
by taking draft readings of the vessel prior to and after
discharge. 11 The survey report submitted by CSCI to the
consignee (PPI) dated 19 July 1974 revealed a shortage in the cargo
of 106.726 M/T and that a portion of the Urea fertilizer
approximating 18 M/T was contaminated with dirt. The same results
were contained in a Certificate of Shortage/Damaged Cargo dated
18 July 1974 prepared by PPI which showed that the cargo
delivered was indeed short of 94.839 M/T and about 23 M/T were
rendered unfit for commerce, having been polluted with sand, rust
and dirt. 12
Consequently, PPI sent a claim letter dated 18 December 1974 to
Soriamont Steamship Agencies (SSA), the resident agent of the
carrier, KKKK, for P245,969.31 representing the cost of the alleged
shortage in the goods shipped and the diminution in value of that
portion said to have been contaminated with dirt. 13
Respondent SSA explained that they were not able to respond to
the consignee's claim for payment because, according to them,
what they received was just a request for shortlanded certificate
and not a formal claim, and that this "request" was denied by them
because they "had nothing to do with the discharge of the
shipment." 14Hence, on 18 July 1975, PPI filed an action for
damages with the Court of First Instance of Manila. The defendant
carrier argued that the strict public policy governing common
carriers does not apply to them because they have become private
carriers by reason of the provisions of the charter-party. The court a
quo however sustained the claim of the plaintiff against the
defendant carrier for the value of the goods lost or damaged when
it ruled thus: 15
. . . Prescinding from the provision of the law that a
common carrier is presumed negligent in case of loss
or damage of the goods it contracts to transport, all
that a shipper has to do in a suit to recover for loss
or damage is to show receipt by the carrier of the
Article 1733 of the New Civil Code mandates that common carriers,
by reason of the nature of their business, should observe
extraordinary diligence in the vigilance over the goods they
carry. 25 In the case of private carriers, however, the exercise of
ordinary diligence in the carriage of goods will suffice. Moreover, in
the case of loss, destruction or deterioration of the goods, common
MORAN, J.:
At about one o'clock in the afternoon of May 26, 1927, the
steamer S.S. Negros, belonging to petitioner here, Teodoro R.
Yangco, left the port of Romblon on its retun trip to Manila. Typhoon
signal No. 2 was then up, of which fact the captain was duly
advised and his attention thereto called by the passengers
themselves before the vessel set sail. The boat was overloaded as
indicated by the loadline which was 6 to 7 inches below the surface
of the water. Baggage, trunks and other equipments were heaped
on the upper deck, the hold being packed to capacity. In addition,
the vessel carried thirty sacks of crushed marble and about one
hundred sacks of copra and some lumber. The passengers,
numbering about 180, were overcrowded, the vessel's capacity
being limited to only 123 passengers. After two hours of sailing, the
boat encountered strong winds and rough seas between the islands
of Banton and Simara, and as the waves splashed the ladies'
dresses, the awnings were lowered. As the sea became increasingly
violent, the captain ordered the vessel to turn left, evidently to
return to port, but in the manuever, the vessel was caught sidewise
by a big wave which caused it to capsize and sink. Many of the
passengers died in the mishap, among them being Antolin Aldaa
and his son Victorioso, husband and son, respectively, of Emilia
Bienvenida who, together with her other children and a brother-inlaw, are respondents in G.R. No. 47447; Casiana Laserna, the
daughter of respondents Manuel Laserna and P.A. de Laserna in
G.R. 47448; and Genaro Basaa, son of Filomeno Basaa,
respondent in G.R. No. 47449. These respondents instituted in the
Court of First Instance of Capiz separate civil actions against
petitioner here to recover damages for the death of the passengers
aforementioned. The court awarded the heirs of Antolin and
Victorioso Aldana the sum of P2,000; the heirs of Casiana Laserna,
P590; and those of Genaro Basana, also P590. After the rendition of
the judgment to this effcet, petitioner, by a verified pleading,
sought to abandon th evessel to the plainitffs in the three cases,
together with all its equipments, without prejudice to his right to
appeal. The abandonment having been denied, an appeal was
taken to the Court of Appeals, wherein all the judgmnets were
affirmed except that which sums was increased to P4,000.
In G.R. No. 77674, Union asks for the modification of the decision of
the respondent court so as to make Maritime solidarily and solely
liable, its principal not having been impleaded and so not subject to
the jurisdiction of our courts.
These two cases were consolidated and given due course, the
parties being required to submit simultaneous memoranda. All
complied, including Hongkong Island Company, Ltd., and
Macondray Company, Inc., although they pointed out that they
were not involved in the petitions.
There are three general categories of charters, to wit, the demise or
"bareboat charter," the time charter and the voyage charter.
A demise involves the transfer of full possession and control of the
vessel for the period covered by the contract, the charterer
obtaining the right to use the vessel and carry whatever cargo it
chooses, while manning and supplying the ship as well. 11
A time charter is a contract to use a vessel for a particular period of
time, the charterer obtaining the right to direct the movements of
the vessel during the chartering period, although the owner retains
possession and control. 12
This period was applied by the Court in the case of Union Carbide,
Philippines, Inc. v. Manila Railroad Co., 17where it was held:
Under the facts of this case, we held that the oneyear period was correctly reckoned by the trial court
from December 19, 1961, when, as agreed upon by
the parties and as shown in the tally sheets, the
cargo was discharged from the carrying vessel and
delivered to the Manila Port Service. That one-year
period expired on December 19, 1962. Inasmuch as
the action was filed on December 21, 1962, it was
barred by the statute of limitations.
The one-year period in the cases at bar should commence on
October 20, 1979, when the last item was delivered to the
consignee. 18 Union's complaint was filed against Hongkong on
September 19, 1980, but tardily against Macondray on April 20,
1981. The consequence is that the action is considered prescribed
as far as Macondray is concerned but not against its principal,
which is what matters anyway.
As regards the goods damaged or lost during unloading, the
charterer is liable therefor, having assumed this activity under the
charter party "free of expense to the vessel." The difficulty is that
Transcontinental has not been impleaded in these cases and so is
beyond our jurisdiction. The liability imposable upon it cannot be
borne by Maritime which, as a mere agent, is not answerable for
injury caused by its principal. It is a well-settled principle that the
agent shall be liable for the act or omission of the principal only if
the latter is undisclosed. 19
Union seeks to hold Maritime liable as ship agent on the basis of
the ruling of this Court in the case of Switzerland General Insurance
Co., Ltd. v. Ramirez. 20 However, we do not find that case is
applicable.
In that case, the charterer represented itself on the face of the bill
of lading as the carrier. The vessel owner and the charterer did not
stipulate in the Charter party on their separate respective liabilities
for the cargo. The loss/damage to the cargo was sustained while it
The facts in the cases at bar are different. The charterer did not
represent itself as a carrier and indeed assumed responsibility
ability only for the unloading of the cargo, i.e, after the goods were
already outside the custody of the vessel. In supervising the
unloading of the cargo and issuing Daily Operations Report and
Statement of Facts indicating and describing the day-to-day
discharge of the cargo, Maritime acted in representation of the
charterer and not of the vessel. It thus cannot be considered a ship
agent. As a mere charterer's agent, it cannot be held solidarily
liable with Transcontinental for the losses/damages to the cargo
outside the custody of the vessel. Notably, Transcontinental was
disclosed as the charterer's principal and there is no question that
Maritime acted within the scope of its authority.