Delsan v. C&a Construction

2/12/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 412
524 SUPREME COURT REPORTS ANNOTATED

Delsan Transport Lines, Inc. vs. C & A Construction, Inc.
*
G.R. No. 156034. October 1, 2003.
DELSAN TRANSPORT LINES, INC., petitioner, vs. C & A

CONSTRUCTION, INC., respondent.
Civil Law; Negligence; The test for determining the existence

of negligence in a particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use the reasonable
care and caution which an ordinary prudent person would have
used in the same situation? If not, then he is guilty of negligence.—
Article 2176 of the Civil Code provides that whoever by act or
omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between
the parties, is called a quasi-delict. The test for determining the
existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use
the reasonable care and caution which an ordinary prudent
person would have used in the same situation? If not, then he is
guilty of negligence.
Same; Same; Emergency Rule; Trial court erred in applying
the emergency rule; Under the rule, one who suddenly finds
himself in a place of danger, and is required to act without time to
consider the best means that may be adopted to avoid the
impending danger is not guilty of negligence if he fails to adopt
what subsequently and upon reflection may appear to have been a
better method unless the danger in which he finds himself is
brought about by his own negligence.—The trial court erred in
applying the emergency rule. Under this rule, one who suddenly
finds himself in a place of danger, and is required to act without
time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to adopt
what subsequently and upon reflection may appear to have been a
better method, unless the danger in which he finds himself is
brought about by his own negligence. Clearly, the emergency rule
is not applicable to the instant case because the danger where
Capt. Jusep found himself was caused by his own negligence.
http://central.com.ph/sfsreader/session/00000161885d09c0879189fe003600fb002c009e/t/?o=False 1/11
Same; Same; Quasi-delict; To avoid liability for a quasi-delict

committed by his employee an employer must overcome the
presumption by presenting convincing proof that he exercised the
care and diligence of a good father of a family in the selection and
supervision of his employee.—Whenever an employee’s negligence
causes damage or injury to another, there instantly arises a
presumption juris tantum that the employer failed to exercise
diligentissimi patris families in the selection (culpa in eligiendo)
or supervision (culpa in vigilando) of its employees. To avoid
_______________
* FIRST DIVISION.
525
VOL. 412, OCTOBER 1, 2003 525
liability for a quasi-delict committed by his employee, an

employer must overcome the presumption by presenting
convincing proof that he exercised the care and diligence of a good
father of a family in the selection and supervision of his employee.
Same; Same; Same; The required diligence of a good father of
a family pertains not only to the selection but also to the
supervision of employees.—There is no question that petitioner,
who is the owner/operator of M/V Delsan Express, is also the
employer of Capt. Jusep who at the time of the incident acted
within the scope of his duty. The defense raised by petitioner was
that it exercised due diligence in the selection of Capt. Jusep
because the latter is a licensed and competent Master Mariner. It
should be stressed, however, that the required diligence of a good
father of a family pertains not only to the selection, but also to the
supervision of employees. It is not enough that the employees
chosen be competent and qualified, inasmuch as the employer is
still required to exercise due diligence in supervising its
employees.
Same; Same; Same; Once negligence on the part of the
employees is shown, the burden of proving that he observed the
diligence in the selection and supervision of its employees shifts to
the employer.—In Fabre, Jr. v. Court of Appeals, it was held that
due diligence in supervision requires the formulation of rules and
regulations for the guidance of employees and the issuance of
proper instructions as well as actual implementation and
monitoring of consistent compliance with the rules. Corollarily, in

Ramos v. Court of Appeals, the Court stressed that once
negligence on the part of the employees is shown, the burden of
proving that he observed the diligence in the selection and
supervision of its employees shifts to the employer.
Same; Same; Same; It is not necessary to state that petitioner
was negligent in the supervision or selection of its employees
inasmuch as its negligence is presumed by operation of law;
Allegations of negligence against the employee and that of an
employer-employee relation in the complaint are enough to make
out a case of quasi-delict under Articles 2180 of the Civil Code.—
So also, petitioner cannot disclaim liability on the basis of
respondent’s failure to allege in its complaint that the former did
not exercise due diligence in the selection and supervision of its
employees. In Viron Transportation Co., Inc. v. Delos Santos, it
was held that it is not necessary to state that petitioner was
negligent in the supervision or selection of its employees,
inasmuch as its negligence is presumed by operation of law.
Allegations of negligence against the employee and that of an
employer-employee relation in the complaint are enough to make
out a case:of quasi-delict under Article 2180 of the Civil Code.
526

PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.

Vergel De Dios Maritime Law Offices for petitioner.
Jose F. Manacop for private respondent.
YNARES-SANTIAGO, J.:
Assailed in this petition for review under Rule 45 of 1the

Revised Rules of Court are the June 14, 2002 decision of
the Court of Appeals 2 in CA-G.R. CV No. 59034, which
reversed the decision of the Regional Trial Court of
Manila, Branch 46, in Civil 3 Case No. 95-75565, and its
November 7, 2002 resolution denying petitioner’s motion
for reconsideration.
The undisputed facts reveal that respondent C & A
Construction, Inc. was engaged by the National Housing
Authority (NHA) to construct a deflector wall
4
at the Vitas
Reclamation Area in Vitas, Tondo, Manila. The project was
completed in 1994 but it was not formally turned over to

NHA.
On October 9, 1994, M/V Delsan Express, a ship owned
and operated by petitioner Delsan Transport Lines, Inc.,
anchored at the Navotas Fish Port for the purpose of
installing a cargo pump and clearing the cargo oil tank. At
around 12:00 midnight of October 20, 1994, Captain
Demetrio T. Jusep of M/V Delsan Express
5
received a report
from his radio head operator
6
in Japan that a typhoon7 was
going to hit Manila in about eight (8) hours. At
approximately 8:35 in the morning of October 21, 1994,
Capt. Jusep tried to seek shelter at the North Harbor but
could not enter the
_______________
1 Rollo, p. 20, penned by Associate Justice Eloy R. Bello, Jr., and

concurred in by Associate Justices Godardo A. Jacinto and Rebecca De
GuiaSalvador.
2 Rollo, p. 39, penned by Judge Artemio S. Tipon.
3 Rollo, p. 28.
4 Memorandum of Agreement between NHA and respondent, Annex
“A”, Records, p. 81.
5 TSN, 9 July 1997, pp. 8-9.
6 Id., pp. 6-7, 25 and 43.
7 Id., pp. 43-44.
527
VOL. 412, OCTOBER 1, 2003 527

8
area because it was already congested. At 10:00 a.m.,
Capt. Jusep decided to drop anchor at the vicinity of Vitas
mouth, 4 miles away from a Napocor power barge. At that
time, the waves were already reaching 8 to 10 feet high.
Capt. Jusep ordered his crew to go full ahead to counter the
wind which was dragging the ship towards the Napocor
power barge. To avoid
9
collision, Capt. Jusep ordered a full
stop of the vessel. He succeeded in avoiding the power
barge, but when the engine was re-started and the ship
was maneuvered full astern, 10
it hit the deflector wall
constructed by respondent. The 11damage caused by the
incident amounted to P456,198.24.
Respondent demanded payment of the damage from
petitioner but the latter refused to pay. Consequently,
respondent filed a complaint for damages with the Regional
Trial Court of Manila, Branch 46, which was docketed as
Civil Case No. 95-75565. In its answer, petitioner12 claimed

that the damage was caused by a fortuitous event.
On February 13, 1998, the complaint filed by respondent
was dismissed. The trial court ruled that petitioner was not
guilty of negligence because it had taken all the necessary
precautions to avoid the accident. Applying the “emergency
rule”, it absolved petitioner of liability because the latter
had no opportunity to adequately weigh the best solution to
a threatening situation. It further held that even if the
maneuver chosen by petitioner was a wrong move, it
cannot be held liable as the cause of the damage sustained
by respondent
13
was typhoon “Katring”, which is an act of
God.
On appeal to the Court of Appeals, the 14
decision of the
trial court was reversed and set aside. It found Capt.
Jusep guilty of negligence in deciding to transfer the vessel
to the North Harbor only at 8:35 a.m. of October 21,1994
and thus held petitioner liable for damages.
_______________
8 Id., pp. 5-6; 23 May 1997, p. 12.

9 TSN, 23 May 1997, pp. 13-19.
10 Id., pp. 18-19.
11 Exhibit “D”, Records, p. 98.
12 Answer, Records, p. 7.
13 Rollo, p. 44.
14 Rollo, p. 25.
528

Hence, petitioner filed the instant petition contending that

Capt. Jusep was not negligent in waiting until 8:35 in the
morning of October 21, 1994 before transferring the vessel
to the North Harbor inasmuch as it was not shown that
had the transfer15
been made earlier, the vessel could have
sought shelter. It further claimed that it cannot be held
vicariously liable under Article 2180 of the Civil Code
because respondent failed to allege in the complaint that
petitioner was 16negligent in the selection and supervision of
its employees. Granting that Capt. Jusep was indeed
guilty of negligence, petitioner is not liable because it
exercised due diligence in the selection of Capt. Jusep
17
who
is a duly licensed and competent Master Mariner.
The issues to be resolved in this petition are as follows—

(1) Whether or not Capt. Jusep was negligent; (2) If yes,
whether or not petitioner is solidarily liable under Article
2180 of the Civil Code for the quasi-delict committed by
Capt. Jusep?
Article 2176 of the Civil Code provides that whoever by
act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict. The
test for determining the existence of negligence in a
particular case may be stated as follows: Did the defendant
in doing the alleged negligent act use the reasonable care
and caution which an ordinary prudent person would have
used in the 18
same situation? If not, then he is guilty of
negligence.
In the case at bar, the Court of Appeals was correct in
holding that Capt. Jusep was negligent in deciding to
transfer the vessel only at 8:35 in the morning of October
21, 1994. As early as 12:00 midnight of October 20, 1994, 19
he received a report from his radio head operator
20
in Japan21
that a typhoon was going to hit Manila after 8 hours.
This, notwithstanding, he did nothing, until 8:35 in the
morning of October 21, 1994, when he decided to seek
shelter
_______________
15 Petition, Rollo, p. 14.

16 Reply, Rollo, pp. 72-73.
17 Petition, Rollo, p. 14.
18 Evangelista v. People, 374 Phil. 129, 143; 315 SCRA 525 (1999).
19 TSN, 9 July 1997, pp. 8-9.
20 TSN, 9 July 1997, pp. 6-7, 25 and 43.
21 Id., pp. 43-44.
529
VOL. 412, OCTOBER 1, 2003 529

at the North Harbor, which unfortunately was already

congested. The finding of negligence cannot be rebutted
upon proof that the ship could not have sought refuge at
the North Harbor even if the transfer was done earlier. It is
not the speculative success or failure of a decision that
determines the existence of negligence in the present case,
but the failure to take immediate and appropriate action
under the circumstances. Capt. Jusep, despite knowledge

that the typhoon was to hit Manila in 8 hours,
complacently waited for the lapse of more than 8 hours 22
thinking that the typhoon might change direction. He
cannot claim that he waited for the sun to rise instead of
moving the vessel at midnight immediately after receiving
the report because of the difficulty of traveling at night.
The hour of 8:35 a.m. is way past sunrise. Furthermore, he
did not transfer as soon as the23sun rose because, according
to him, it was not
24
very cloudy and there was no weather
disturbance yet.
When he ignored the weather report notwithstanding
reasonable foresight of harm, Capt. Jusep showed an
inexcusable lack of care and caution which an ordinary
prudent 25person would have observed in the same
situation. Had he moved the vessel earlier, he could have
had greater chances of finding a space at the North Harbor
considering that the Navotas
26
Port where they docked was
very near North Harbor. Even if the latter was already
congested, he would still have time to seek refuge in other
ports.
The trial court erred in applying the emergency rule.
Under this rule, one who suddenly finds himself in a place
of danger, and is required to act without time to consider
the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to
adopt what subsequently and upon reflection may appear
to have been a better method, unless the danger in which 27
he finds himself is brought about by his own negligence.
Clearly, the emergency rule is not applicable to the instant
case
_______________
22 Id., pp. 11-12 and 42-43.

23 Id., p. 42.
24 Id., pp. 14-16.
25 People v. De los Santos, G.R. No. 131588, 27 March 2001, 355 SCRA
415, 430, citing Picart v. Smith, 37 Phil. 809 (1918).
26 Id., pp. 15-16.
27 Mckee v. Intermediate Appellate Court, G.R. No. 68102, 16 July 1992,
517 SCRA 517, 540.
530

because the danger where Capt. Jusep found himself was

caused by his own negligence.
Anent the second issue, we find petitioner vicariously
liable for the negligent act of Capt. Jusep. Under Article
2180 of the Civil Code an employer may be held solidarily
liable for the negligent act of his employee. Thus—
Art. 2180. The obligation imposed in Article 2176 is demandable

not only for one’s own acts or omissions, but also for those of
persons for whom one is responsible.
x x x x x x x x x
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry.
x x x x x x x x x
The responsibility treated of in this article shall cease when
the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
Whenever an employee’s negligence causes damage or

injury to another, there instantly arises a presumption
juris tantum that the employer failed to exercise
diligentissimi patris families in the selection (culpa in
eligiendo) or supervision (culpa in vigilando) of its
employees. To avoid liability for a quasi-delict committed
by his employee, an employer must overcome the
presumption by presenting convincing proof that he
exercised the care and diligence of a good father28of a family
in the selection and supervision of his employee.
There is no question that petitioner, who is the
owner/operator of M/V Delsan Express, is also the employer
of Capt. Jusep who at the time of the incident acted within
the scope of his duty. The defense raised by petitioner was
that it exercised due diligence in the selection of Capt.
Jusep because the latter is a licensed and competent
Master Mariner. It should be stressed, however, that
_______________
28 Light Rail Transit Authority v. Navidad, G.R. No. 145804, 6

February 2003, 397 SCRA 75; Metro Manila Transit Corporation v. Court
of Appeals, G.R. No. 141089, 1 August 2002, 386 SCRA 126, citing
Pantranco North Express, Inc. v. Baesa, G.R. Nos. 79050-51, 14 November
1989, 179 SCRA 384; Umali v. Bacani, G.R. No. L- 40570, 30 January
1976, 69 SCRA 263.
531
VOL. 412, OCTOBER 1, 2003 531

the required diligence of a good father of a family pertains

not only to the selection, but also to the supervision of
employees. It is not enough that the employees chosen be
competent and qualified, inasmuch as the employer is still
required to exercise due diligence in supervising its
employees. 29
In Fabre, Jr. v. Court of Appeals, it was held that due
diligence in supervision requires the formulation of rules
and regulations for the guidance of employees and the
issuance of proper instructions as well as actual
implementation and monitoring of consistent compliance30
with the rules. Corollarily, in Ramos v. Court of Appeals,
the Court stressed that once negligence on the part of the
employees is shown, the burden of proving that he observed
the diligence in the selection and supervision of its
employees shifts to the employer.
In the case at bar, however, petitioner presented no
evidence that it formulated rules/guidelines for the proper
performance of functions of its employees and that it
strictly implemented and monitored compliance therewith.
Failing to discharge the burden, petitioner should therefore
be held liable for the negligent act of Capt. Jusep.
So also, petitioner cannot disclaim liability on the basis
of respondent’s failure to allege in its complaint that the
former did not exercise due diligence in the selection and
supervision of its employees.
31
In Viron Transportation Co.,
Inc. v. Delos Santos, it was held that it is not necessary to
state that petitioner was negligent in the supervision or
selection of its employees, inasmuch as its negligence is
presumed by operation of law. Allegations of negligence
against the employee and that of an employer-employee
relation in the complaint are enough to make out 32
a case: of
quasidelict under Article 2180 of the Civil Code.
Considering that petitioner did not assail the damages
awarded by the trial court, we find no reason to alter the
same. The interest imposed should, however, be modified.
In Eastern Shipping Lines,
_______________
29 328 Phil. 774, 786; 259 SCRA 426 (1996), citing Filamer Christian
Institute v. Intermediate Appellate Court, G.R. No. 75112, 17 August 1992,
212 SCRA 637.
30 378 Phil. 1198, 1242; 321 SCRA 584 (1999).
31 G.R. No. 138296, 22 November 2000, 345 SCRA 509, 517.
32 Jose v. Court of Appeals, 379 Phil. 30, 46; 322 SCRA 25 (2000).
532

33
Inc. v. Court of Appeals, it was held that the rate of
interest on obligations not constituting a loan or
forbearance of money is six percent (6%) per annum. If the
purchase price can be established with certainty at the
time of the filing of the complaint, the six percent (6%)
interest should be computed from the date the complaint
was filed until finality of the decision. After the judgment
becomes final and executory until the obligation is
satisfied, the amount due shall earn interest at 12% per
year, the interim period
34
being deemed equivalent to a
forbearance of credit.
Accordingly, the amount of P456,198.27 due the
respondent shall earn 6% interest per annum from October
3, 1995 until the finality of this decision. If the adjudged
principal and the interest (or any part thereof) remain
unpaid thereafter, the interest rate shall be twelve percent
(12%) per annum computed from the time the judgment
becomes final and executory until it is fully satisfied.
WHEREFORE, in view of all the foregoing, the instant
petition is DENIED. The June 14, 2002 decision of the
Court of Appeals in CA-G.R. CV No. 59034 ordering
petitioner Delsan Transport Lines, Inc., to pay respondent
C & A Construction, Inc., damages in the amount of
P456,198.27, plus P30,000.00 as attorney’s fees, is
AFFIRMED with the MODIFICATION that the award of
P456,198.27 shall earn interest at the rate of 6% per
annum from October 3, 1995, until finality of this decision,
and 12% per annum thereafter on the principal and
interest (or any part thereof) until full payment.
SO ORDERED.
Vitug and Carpio, JJ., concur.

Davide, Jr. (C.J., Chairman), No part; was former
counsel of a party.
Azcuna, J., On leave.
Judgment affirmed with modification.
_______________
33 Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, 12

July 1994, 234 SCRA 78, 96.
34 Eastern Shipping Lines, Inc. v. Court of Appeals, supra, at p. 97.
533
VOL. 412, OCTOBER 2, 2003 533

Aslarona vs. Echavez
Note.—The basis for holding an employer solidarily

responsible for the negligence of its employee is found in
Article 2180 of the Civil Code. (Ramos vs. Court of Appeals,
321 SCRA 584 [1999])
——o0o——
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2/12/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 412

524 SUPREME COURT REPORTS ANNOTATED

DELSAN TRANSPORT LINES, INC., petitioner, vs. C & A

Civil Law; Negligence; The test for determining the existence

Same; Same; Quasi-delict; To avoid liability for a quasi-delict

VOL. 412, OCTOBER 1, 2003 525

Delsan Transport Lines, Inc. vs. C & A Construction, Inc.

liability for a quasi-delict committed by his employee, an

monitoring of consistent compliance with the rules. Corollarily, in

526 SUPREME COURT REPORTS ANNOTATED

PETITION for review on certiorari of the decision and

The facts are stated in the opinion of the Court.

Assailed in this petition for review under Rule 45 of 1the

completed in 1994 but it was not formally turned over to

1 Rollo, p. 20, penned by Associate Justice Eloy R. Bello, Jr., and

VOL. 412, OCTOBER 1, 2003 527

Civil Case No. 95-75565. In its answer, petitioner12 claimed

8 Id., pp. 5-6; 23 May 1997, p. 12.

528 SUPREME COURT REPORTS ANNOTATED

Hence, petitioner filed the instant petition contending that

The issues to be resolved in this petition are as follows—

15 Petition, Rollo, p. 14.

VOL. 412, OCTOBER 1, 2003 529

at the North Harbor, which unfortunately was already

under the circumstances. Capt. Jusep, despite knowledge

22 Id., pp. 11-12 and 42-43.

530 SUPREME COURT REPORTS ANNOTATED

because the danger where Capt. Jusep found himself was

Art. 2180. The obligation imposed in Article 2176 is demandable

Whenever an employee’s negligence causes damage or

28 Light Rail Transit Authority v. Navidad, G.R. No. 145804, 6

VOL. 412, OCTOBER 1, 2003 531

the required diligence of a good father of a family pertains

532 SUPREME COURT REPORTS ANNOTATED

Vitug and Carpio, JJ., concur.

Judgment affirmed with modification.

33 Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, 12

VOL. 412, OCTOBER 2, 2003 533

Note.—The basis for holding an employer solidarily

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