Académique Documents
Professionnel Documents
Culture Documents
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I. General Considerations
A. Public Utilities
1. Article XII, 1987 Constitution
Art. XII, Section 11. No franchise, certificate or any other
form of authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to corporations or
associations organized under the laws of the Philippines at least 60%
of whose capital is owned by such citizens, nor shall such franchise,
certificate or authorization be exclusive in character or for a longer
period than fifty years. Neither shall any franchise or right be granted
except under the condition that it shall be subject to amendment,
alteration or repeal by the Congress when the common good so
requires. The State shall encourage equity participation in public
utilities by the general public. The participation of foreign investors in
the governing body of any public utility enterprise shall be limited to
their proportionate share in its capital, and all the executive and
managing officers of such corporation or association must be citizens
of the Philippines.
Section 17. In times of national emergency, when the public
interest so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected
with public interest.
Section 18. The State may, in the interest of national welfare
or defense, establish and operate vital industries and, upon payment
of just compensation, transfer to public ownership utilities and other
private enterprises to be operated by the Government.
Section 19. The State shall regulate or prohibit monopolies
when the public interest so requires. No combinations in restraint of
trade or unfair competition shall be allowed.
(a) What is a public utility?
A public utility is a business or service engaged in regularly
supplying the public with some commodity or service of public consequence
such as electricity, gas, water, transportation, telephone or telegraph
service. Apart from statutes which define the public utilities that are within
the purview of such statutes, it would be difficult to construct a definition of a
public utility which would fit every conceivable case. As its name indicates,
however, the term public utility implies a public use and service to the
public. (Am. Jur. 2d V. 64, p.549.) (Albano vs Reyes)
(b) What is a public service?
The Public Service Act (CA No. 146 as amended) provides that
the term public service "includes every person that now or hereafter may
own, operate, manage, or control in the Philippines, for hire or
compensation, with general or limited clientele, whether permanent,
occasional or accidental, and done for general business purposes, any
common carrier, railroad, street railway, traction railway, sub-way motor
vehicle, either for freight or passenger, or both with or without fixed route
and whatever may be its classification, freight or carrier service or any
class, express service, steamboat, or steamship line, pontines, ferries, and
water craft, engaged in the transportation of passengers and freight or both,
shipyard, marine repairshop, [warehouse], wharf or dock, ice plant, ice
refrigeration plant, canal, irrigation system, gas, electric light, heat and
power, water supply and power, petroleum, sewerage system, wire or
wireless communications system, wire or wireless broadcasting stations and
other similar public services..." [Sec. 13(b)] (Albano vs Reyes)
Albano vs Reyes 175 SCRA 264
F:
On 20 April 1987, the Phil. Ports Authority (PPA) adopted a
resolution directing mgmt. to prepare the Invitation to Bid and all relevant
B. Transportation
1. Definition - A contract of transportation is one
whereby a certain person or association of persons obligate themselves to
transport persons, things, news from one place to another for a fixed price.
It is the removal of goods or persons from one place to another.
2. Public Nature
(a) Public Service Act
Section 13 (a) The Commission (PSC) shall have jurisdiction,
supervision, and control over all public services and their franchises,
eqpt., and other properties, and in the exercise of its authority, it shall
have the necessary powers and the aid of the public force: Provided,
That public services owned or operated by govt. entities or GOOCs
shall be regulated by the Commission in the same way as privately
owned public services, but certificates of public convenience or
certificates of public convenience and necessity shall not be required
of such entities or corporations: And provided, further, That it shall
have no authority to require steamboats, motorships and steamship
lines, whether privately owned or owned or operated by any govt.
controlled corporation or instrumentality to obtain certificates of
public convenience or to prescribe their definite routes or lines of
service.
(b) The term public service includes every person that now
or hereafter may operate, manage, or control in the Philippines, for
hire or compensation, with general or limited clientele, whether
permanent, occasional or accidental, and done for general business
purposes, any common carrier, railroad, street railway, traction railway,
sub-way motor vehicle, either for freight or passenger, or both with or
without fixed route and whatever may be its classification, freight or
carrier service or any class, express service, steamboat, or steamship
line, pontines, ferries, and water craft, engaged in the transportation of
passengers and freight or both, shipyard, marine repairshop,
warehouse, wharf or dock, ice plant, ice refrigeration plant, canal,
irrigation system, gas, electric light, heat and power, water supply and
power, petroleum, sewerage system, wire or wireless communications
system, wire or wireless broadcasting stations and other similar public
services: Provided, however, that a person engaged in agriculture, not
otherwise a public service, who owns a motor vehicle and uses it
personally and/or enters into a special contract whereby said motor
vehicle is offered for hire or compensation to a third party or third
parties engaged in agriculture, not itself or themselves a public
service, for operation by the latter for a limited time and for a specific
purpose directly connected with the cultivation of his or their farm, the
transportation, processing, and marketing of agricultural products of
such third party or third parties shall not be considered as operating a
public service for the purposes of this Act.
(c) The word "person" includes every individual, copartnership, joint stock co. or corporation, whether domestic or
foreign, their lessees, trustees, or receivers, as well as any
municipality, province, city, GOOC, or agency of the govt. of the
PAGE 2
PAGE 3
Section 20. Acts requiring the approval of the Commission Subject to established limitations and exceptions and saving
provisions to the contrary, it shall be unlawful for any public service or
for the owner, lessee or operator thereof, without the approval and
authorization of the Commission previously had (a) To adopt, establish, fix, impose, maintain, collect or carry
into effect any individual or joint rates, commutation, mileage or other
special rate, toll, fare, charge, classification or itinerary. The
Commission shall approve only those that are just and reasonable and
not nay that are unjustly discriminatory or unduly preferential, only
upon reasonable notice to the public services and other parties
concerned, giving them a reasonable opportunity to be heard and the
burden of the proof to show that the proposed rates or regulations are
just an reasonable shall be upon the public service proposing the
same.
Prior operator rule - to carry out the purpose and intent for which the PSC
was created the law contemplates that the first licensee will be protected in
his investment and will not be subjected to a ruinous competition. It is not
therefore the policy of the law for the PSC to issue a CPC to a second
operator to cover the same field and in competition with a first operator who
is rendering sufficient, adequate and satisfactory service, and who in all
things and respects is complying with the rules and regulations of the PSC.
Accordingly, a CPC or CPCN ought not to be granted where there is no
complaint as to existing rates and the co. in the field is rendering adequate
services.
- regular operators are preferred over irregular operators
- prior operator is given opportunity to improve service
- prior operator given opportunity to extend lines
- basis of rule : to prevent ruinous and wasteful competition in order that the
interests of the public would be conserved and preserved; so long as the
operator complied with the terms and conditions of the license and the
reasonable demands of the public, it is the duty of the PSC to protect rather
than to destroy its investment
PAGE 4
F:
Nicanor de Guzman signing as Guzco Transit purchased trucks
from Luneta Motor and executed PNs guaranteed by a chattel mortgage on
several trucks. Failing to pay the PNs, a suit for collection was filed. A writ
of attachment was issued and garnishment was served on the PSC
attaching the right, title, and participation of Guzco Transit in the CPC
covering the bus transportation lines between Manila and Rizal. The CFI
ordered the selling of these certificates in a public bidding in which Luneta
Motor was the highest bidder.
Nine days after the certificates were attached, these were sold to
Raymundo (including certificate No. 25951 which was not included in the
sale to Luneta Motor Co.). The approval of the sale was sought from the
PSC. The PSC approved the sale in the public bidding and disapproved the
sale to Raymundo except with respect to Certificate No. 25951 which
Raymundo could apply for its approval.
Issue : Which of the two sales should prevail? public auction by virtue of an
attachment vs voluntary sale
Held : Sale to Luneta Motor Co. in a public auction
The Public Service Law authorizes certificates of public
convenience to be secured by public service operators from the PSC. A
CPC grants a right in the nature of a limited franchise. The Code of Civil
Procedure does not exclude franchises or certificates from the word
"property." The test by which to determine WON a property can be
attached and sold upon execution is whether the judgment debtor has such
a beneficial interest therein that he can sell or otherwise dispose of it for
value. The Public Service Law permits the PSC to approve the sale,
alienation, mortgaging, encumbering or leasing of property, franchises,
privileges, or rights or any part thereof. If the holder of a certificate can
voluntary sell it, there is no reason why the same cannot be sold
involuntarily pursuant to court process.
CPCs have considerable material value. They are valuable
assets. They are subject to being sold for consideration as much as any
other property. They are even more valuable than ordinary properties,
taking into consideration that they are not granted to every one who applies
for them but only to those who undertake to furnish satisfactory and
convenient service to the public. Though intangible, they are of value and
are considered properties which can be seized through legal process.
PAGE 5
The
Department
of
Transportation
and
Communications
EO 125, Sec. 4. Mandate. The DOTC shall be the primary
policy, planning, programming, coordinating, implementing,
regulating, and administrative entity of the Executive Branch of the
govt. in the promotion, devt. and regulation of dependable and
coordinated networks of transportation and communication systems,
as well as in the fast, safe, efficient, and reliable postal, transportation
and communication services.
To accomplish such mandate, the Dept. shall have the ff.
objectives:
(a) promote the devt. of dependable and coordinated
networks of transportation and communication systems;
(a) Air
(i) Air Transportation Office
PAGE 6
Sec. 11. xxx The present Airport Offices of the Bureau of Air
Transportation are hereby abolished and their functions are transferred
to the Dept. Airport Offices. xxx
EO 125-A
(b) Land
(i) Land Transportation Office
Section 9. Assistant Secretaries and Service Chiefs
xxx
e) Office of the Assistant Secretary for Land Transportation
(ii)
Land
Transportation
PAGE 7
Sec.6. The Board xxx shall sit and render its decision en
banc; xxx concurrence and signature of at least 2 members xxx
The decision shall be appealable to the Secretary within 30
days from receipt of the decision; Provided, that the Secretary may
motu proprio review any decision or action of the Board before the
same becomes final.
Sec. 20. The Board shall xxx sit and decide en banc;
concurrence and signature of at least 2 members; decision shall be
appealable to the Secretary within 30 days from receipt of the decision;
the Secretary may motu proprio review any decision or action of the
Board before it becomes final.
(c) Water
(i) Maritime Industry Authority
EO 125, Sec. 14 as amended by EO 125-A, Sec. 3
The Maritime Industry Authority is hereby retained and shall
have the ff. functions:
a. develop and formulate plans, policies, projects xxx geared
toward the promotion and devt. of the maritime industry, the growth
and effective regulation of shipping enterprises, and for the national
security objectives of the country;
b. establish, prescribe and regulate routes, zones and/or
areas of operation of particular operators of public water services;
c. issue CPCs for the operation of domestic and overseas
water carriers;
d. register vessels as well as issue certificates, licenses or
document necessary or incident thereto;
e. undertake the safety regulatory functions pertaining to
vessel construction and operation including the determination or
manning levels and issuance of certificates of competency to seamen;
f. enforce laws, prescribe and enforce rules and regulations,
including penalties for violations thereof, governing water
transportation and the Phil. merchant marine xxx;
g. undertake the issuance of licenses to qualified seamen
and harbor, bay and river pilots;
h. determine, fix, prescribe charges/rates pertinent to the
operation of public water transport utilities xxx;
i. accredit marine surveyors and maritime enterprises
engaged in shipbuilding, ship repair xxx;
j. issue and register the continuous discharge book of
Filipino seamen;
k. establish and prescribe rules and regulations, standards
and procedures for the efficient and effective discharge of the above
functions;
l. perform such other functions as may now or hereafter be
provided by law.
A. In General
1. Definitions; essential elements
Art. 1732. Common carriers are persons, corporations, firms
or associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water or air, for compensation,
offering their services to the public.
Aguedo F. Agbayani, COMMERCIAL LAWS OF THE PHILIPPINES, vol. 4,
1989 ed. (hereinafter 4 Agbayani)
Transportation defined.-- a contract of transportation is one whereby a
certain person or association of persons obligate themselves to transport
persons, things, or news from one place to another for a fixed price
PAGE 8
Freight defined.-- The terms has been defined as: (1) the price or
compensation paid for the transportation of goods by a carrier, at sea, from
port to port. But the term is also used to denote (2) the hire paid for the
carriage of goods on land from place to place, or on inland streams or lakes.
The name is also applied to (3) the goods or merchandise transported at
sea, on land, or inland streams or lakes. Thus the term is used in 2 senses:
to designate the price for the carriage, also called freightage, or to designate
the goods carried.
(1)
in
the
some
private
for hire
(2)
bound
to
(3)
The law prohibits unreasonable discrimination by common carriers.-The law requires common carriers to carry for all persons, either passengers
or property, for exactly the same charge for a like or contemporaneous
service in the transportation of like kind of traffic under substantially similar
circumstances or conditions. The law prohibits common carriers (CC) from
subjecting any person, etc. or locality, or any kind of traffic, to any undue or
unreasonable prejudice or discrimination whatsoever.
Exception: When the actual cost of handling and transporting is
different, then different rates may be charged
Cases : (1) merchandise of like quantity may not be considered alike - the
quantity, kind and quality may be exactly the same, and yet not be alike, so
far as the cost of transportation is concerned
(2) shipments may be alike although composed of different
classes of merchandise - difference in the charge for handling and
transporting may only be made when the difference is based upon actual
cost
agreement
hold itself
Determination of justifiable refusal:
PAGE 9
Case: The mere fact that the carriage of dynamites may lead to destructive
explosions is not sufficient to justify refusal if it can be proven that in the
condition in which it is offered for carriage there is no real danger to the
carrier nor reasonable ground to fear that the vessel and those on board will
be exposed to unnecessary or unreasonable risks
F:
Cendana was a junk dealer and was engaged in buying used
bottles and scrap materials in Pangasinan and brought these to Manila for
resale. He used two 6-wheeler trucks. On the return trip to Pangasinan, he
would load his vehicles with cargo which various merchants wanted
delivered to Pangasinan. For that service, he charged freight lower than
regular rates. General Milk Co. contracted with him for the hauling of 750
cartons of mild. On the way to Pangasinan, one of the trucks was hijacked
by armed men who took with them the truck and its cargo and kidnapped
the driver and his helper. Only 150 cartons of milk were delivered. The Milk
Co. sued to claim the value of the lost merchandise based on an alleged
contract of carriage. Cendana denied that he was a common carrier and
contended that he could not be liable for the loss since it was due to force
majeure. The TC ruled that he was a common carrier. The CA reversed.
Issue : WON Cendana is a common carrier. YES.
Issue : WON Cendana may be held liable for the loss of the milk. NO.
F:
A Peruvian firm shipped fishmeal through the SS Crowborough
consigned to the SMB and insured by the Home Insurance Co. The cargo
arrived with shortages. SMB demanded and Home Insurance Co. paid
P14,000 in settlement of SMB's claim. Home Insurance filed for recovery
from Luzon Stevedoring and American Steamship Agencies. Luzon
Stevedoring claimed that it merely delivered what it received from the carrier
in the same condition it received it. American Steamship contended that it
was not liable because of a stipulation in the charter party that the charterer
and not the shipowner was to be liable for any loss or damage to the cargo.
The CFI absolved Luzon Stevedoring but ordered American Steamship to
reimburse the P14,000 to Home Insurance, declaring that Art. 587 of the
Code of Commerce makes the ship agent civilly liable for damages in favor
of third persons due to the conduct of carrier's captain and that the
stipulation in the charter party exempting owner from liability is against
public policy under Art. 1744 of NCC.
Held: Common carriers by the very nature of their business and for reasons
of public policy are held to a very high degree of care and diligence (extraordinary diligence) in the carriage of goods as well as passengers. Article
1734 establishes the general rule that CC are responsible for the loss,
destruction, or deterioration of the goods which they carry unless the same
is due to the causes enumerated therein. Such enumeration is a closed list.
Causes falling outside the list, even if they are force majeure, fall within the
scope of Art. 1735 which provides that CC are presumed to have been at
fault or to have acted negligently, unless they prove that they observed
extraordinary diligence required under Art. 1733.
However, Art. 1745 provides that a CC cannot be allowed to
divest or diminish his responsibility even for acts of strangers like thieves or
robbers, except where such thieves or robbers acted with grave or
irresistible threat, violence or force. The limits of extraordinary diligence are
reached where there is grave or irresistible threat, violence or force. In this
case, the loss was quite beyond the control of the CC. Even CC are not
made absolute insurers against all risks of travel and of transport of goods,
and are not 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.
PAGE 10
PAGE 11
PAGE 12
Issue : WON the approval of the PSC is necessary for the sale of a public
service vehicle even without conveying therewith the authority to operate
the same. YES.
F:
A passenger jeepney driven by Brigido Avorque smashed into a
Meralco post resulting in the death of Vicenta Medina, one of its
passengers. In a criminal case of homicide through reckless imprudence,
Avorque pleaded guilty. The right to file a separate action for damages was
reserved. Cresencia was still the registered operator of the jeepney in the
records of the Motor Vehicles Office and the PSC, while Rosario Avorque
was the owner at the time of the accident.
Held : A transfer made without the requisite approval of the PSC is not
effective and binding in so far as the responsibility of the grantee under the
franchise in relation to the public is concerned. The law was designed
primarily for the protection of the public interest.
Issue : WON moral damages may be awarded.
Issue: WON Cresencia is liable for breach of the contract of carriage. YES.
Ratio: The law requires the approval of the PSC, in order that a franchise, or
any privilege pertaining thereto, may be sold or leased without infringing the
certificate issued to the grantee; and that if property covered by the
franchise is transferred or leased without this requisite approval, the transfer
is not binding against the public or the PSC; and in contemplation of law, the
grantee of record continues to be responsible under the franchise in relation
to the PSC and to the public. Since a franchise is personal in nature, any
transfer or lease thereof should be notified to the PSC so that the latter may
take proper safeguards to protect the interest of the public.
Plaintiff's action is based on the breach of the carrier's
contractual obligation to carry his passengers safely to their destination
(culpa contractual). The liability of the carrier is direct and immediate.
PAGE 13
by respondent Nisshin Fire and Marine Insurance Co. and Dowa Fire &
Marine Insurance Co.
En route for Manila, the ship caught fire and sank. The insurers
paid the corresponding marine insurance values and were subrogated to the
rights of the latter as the insured. They filed suits against the petitioner
Carrier and won (affirmed by the CA). Petitioner carrier denies liability on
the ff. grounds:
(a) that the loss was due to an extraordinary fortuitous even
which is an exempting circumstance under Sec. 4(2)(b) of the Carriage of
Goods by Sea Act (COGSA);
(b) that when fire is established, the burden of proving negligence
is shifted to the cargo shipper.
Issues: (1)Which law should govern : the Civil Code or the Carriage of
Goods by Sea Act.
(2)Who has the burden of proof to show negligence of the carrier.
Ratio : (1) The law of the country to which the goods are to be transported
governs the liability of the common carrier in case of their loss, destruction
or deterioration. As the cargoes in question were transported from Japan to
the Philippines, the liability of Petitioner Carrier is governed primarily by the
Civil Code. However, in all matters not regulated by said Code, the rights
and obligations of common carriers shall be governed by the Code of
Commerce and special laws. Thus, the COGSA, a special law, is
suppletory to the provisions of the Civil Code.
(2) Under the Civil Code, common carriers, from the nature of
their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over goods, accdg. to all the
circumstances of each case. Common carriers are responsible for the loss,
destruction, or deterioration of the goods unless the same is due to any of
the ff. causes only (Art. 1734, NCC):
"(1) Flood, storm, earthquake, lightning or other natural disaster
or calamity; xxx"
The Carrier claims that the loss of the vessel by fire exempts it
from liability under the phrase "natural disaster or calamity." However, we
are of the opinion that fire may not be considered a natural disaster or
calamity. This must be so as it arises almost invariably from some act of
man or by human means. It does not fall within the category of an act of
God unless caused by lightning or by other natural disaster or calamity. It
may even be caused by the actual fault or privity of the carrier.
As the peril of fire is not comprehended within the exceptions in
Article 1734, then Article 1735 provides that in all cases other than those
mentioned in Art. 1734, the CC shall be presumed to have been at fault or to
have acted negligently, unless it proves that it has observed the extraordinary diligence required by law.
In this case, the respective Insurers, as subrogees of the cargo
shippers, have proven that the transported goods have been lost. Petitioner
carrier has also proven that the loss was caused by fire. The burden then
is upon Petitioner carrier to prove that it has exercised the extra-ordinary
diligence required by law.
Having failed to discharge the burden of proving that it had
exercised the extra-ordinary diligence required by law, Petitioner Carrier can
not escape liability for the loss of the cargo.
And even if fire were to be considered a natural disaster within
the meaning of Art. 1734, it is required under Art. 1739 of the same Code
that the natural disaster must have been the proximate and only cause of
the loss, and that the carrier has exercised due diligence to prevent or
minimize the loss before, during or after the occurrence of the disaster. This
petitioner carrier has also failed to establish satisfactorily.
Nor may Petitioner Carrier seek refuge from liability under the
COGSA. It is provided therein that:
"Sec.4 (2). Neither the carrier nor the ship shall be responsible
for loss or damage arising or resulting from: (b) Fire, unless caused by the
actual fault or privity of the carrier."
In this case, both the TC and the CA, in effect, found, as a fact,
that there was "actual fault" of the carrier shown by lack of diligence in that
when the smoke was noticed, the fire was already big; that the fire must
have started 24 hrs before the same was noticed; and that after the cargoes
were stored in the hatches, no regular inspection was made as to their
condition during the voyage.
The foregoing suffices to show that the circumstances under
which the fire originated and spread are such as to show that Petitioner
carrier or its servants were negligent in connection therewith. Consequently,
the complete defense afforded by the COGSA when the loss results from
fire is unavailing to petitioner carrier.
PAGE 14
B. Common Carriers
1. Liability and presumption of negligence
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the
safety of the passengers transported by them, according to the
circumstances of each case.
Such extraordinary diligence in the vigilance over the goods
is further expressed in Articles 1734, 1735, and 1745, Nos. 5,6, and 7,
while the extraordinary diligence for the safety of the passengers is
further set forth in Articles 1755 and 1756.
(read discussion under [3] Nature and basis of liability)
Art. 1734. Common carriers are responsible for the loss,
destruction, or deterioration of the goods, unless the same is due to
any of the following causes only:
(1) Flood, storm, earthquake, lightning, or other natural
disaster or calamity;
(2) Act of the public enemy in war, whether international or
civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packaging or
in the containers;
(5) Order or act of competent public authority.
Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3,
4 and 5 of the preceding article, if the goods are lost, destroyed or
deteriorated, common carriers are presumed to have been at fault or to have
acted negligently, unless they prove that they observed extraordinary
diligence as required in Art. 1733.
4 Agbayani:
Responsibility of common carriers.-In general, CC are responsible
for the loss, destruction, or deterioration of the goods carried by them. This
responsibility arises from contract, as the relation between a carrier and its
patrons is of a contractual nature. A failure on the carrier to use extraordinary care in carrying goods or passengers safely is a breach of contract
and constitutes culpa contractual not culpa aquiliana. While the liability of a
carrier as an insurer is not recognized in this jurisdiction, a carrier is liable
for damages suffered by goods carried if such damages arise from its
negligence. The carrier is also liable even in those cases where the cause
of the loss or damage is unknown.
Due extraordinary diligence required, carriers given wide discretion in
selection and supervision of persons to handle goods.-- The law
requires CC to exercise extra-o diligence which means that they must
render service with the greatest skill and utmost foresight. The extra-o
diligence required of CC in the handling of the goods of the shipper and the
consignees lasts from the time the cargoes are loaded in the vessels until
they are discharged and delivered to the consignees. To comply with this
obligation, CC should be afforded the right of having a wide discretion in the
selection and supervision of persons who will handle the goods.
Air carrier can terminate services of pilot for serious misconduct and
drunkenness, because of its duty of extraordinary dilignece.-- The CC
can terminate the services of its drivers, pilots and EEs for serious
misconduct and drunkenness because of its duty of extra-ordinary diligence.
Whenever a passenger dies or is injured the presumption is that the CC is at
fault notwithstanding the fact that it has exercised due diligence of a good
father of a family in the selection and supervision of its EEs. Thus, extraordinary measures and diligence should be exercised by it for the safety of
its passengers and their belongings. A CC can terminate an EE whose
continued service is inimical to its interests and the safety of the
passengers.
Carrier has duty to keep and care for goods carried.-- It is the duty of
the CC to properly and carefully handle, carry, keep and care for the goods
carried and to exercise due care to ascertain and consider the nature of the
goods offered for shipment and to use such methods for their care during
the voyage as their nature requires. The carrier is liable for injury to, or loss
of, cargo resulting from the failure to properly care for and handle the cargo
en route; and it is required to provide adequate ventilation for the safe
carriage of the cargo, and provide reasonable and ordinary inspection and
care in and about the transportation of cargo. A vessel should not accept
cargo unless it can be given the type of storage that its character requires,
Duty of carrier to deliver cargo in good condition as when loaded.-There is no absolute obligation for a CC to accept cargo. It should not be
accepted unless it can be given the type of storage that its character
requires. Where a vessel accepts a cargo for shipment for valuable
consideration, it takes the risk of delivering it in good condition as when it
was loaded. And if the fact of improper packing is known to the carrier or
his servants, or apparent upon ordinary observation, but it accepts the
goods notwithstanding such condition, it is not relieved of liability for loss or
injury resulting therefrom.
In the exercise of extra-ordinary diligence required by law, the
CC must give due regard to all circumstances and take all steps necessary
to insure the safety of the passengers and the goods given the
circumstances.
Presumption of negligence.-- Under Art. 1735, if the goods are proved to
have been lost, destroyed or deteriorated, CC are presumed to have been at
fault or to have acted negligently, unless they prove that they have observed
the extra-o diligence required by law.
The plaintiff needs only to prove that the goods he transported
have been lost, destroyed or deteriorated
CC must then prove that he has exercised extra-ordinary
diligence required by law or that the loss, etc. was due to accident or some
other circumstances inconsistent with its liability
Mere proof of delivery of goods in order to a carrier, and of their
arrival at the place of destination in bad order makes out a prima facie case
against the CC
Defenses available to CC:
1. Art. 1734
2. Art. 1735 (exercise of extra-ordinary diligence required by law)
3. Natural disaster: The CC is exempt from liability if he proves
that the loss or destruction of the merchandise was due to accident and
force majeure and not to fraud, fault or negligence on the part of the EEs
and owners of the CC.
CC cannot interpose the defense that it exercised due diligence
in the selection and supervision of EEs. The liability of the CC arises from
breach of the contract of carriage and not from culpa aquiliana. It is
however the duty of CC to teach their drivers not to overload vehicles, not to
exceed safe and legal speed limits, and other safety precautions.
Carrier not insurer.--CC are not required to exercise all the care, skill and
diligence of which the human mind can conceive nor such as will free the
transportation of passengers from all possible perils. A CC is not an insurer
of the safety of the passengers and is not absolutely and at all events to
carry them safely and without injury.
Ynchausti Steamship Co. vs Dexter 41 Phil 289
F:
The Govt. of the Philippines, acting through the Insular
Purchasing Agent, employed the services of petitioner, Ynchausti Steamship
Co., a common carrier for the transportation, on board the steamship Venus,
from the port of Manila to the port of Appari, Cagayan, of consignments of
merchandise, consisting of 30 cases of Wine Rose mineral oil of two 5gallon cans to the case. On another occasion, the Govt. also sent 96 cases
of Cock brand mineral oil, ten gallons to the case. The goods were
delivered by the shipper to the carrier which accordingly received them, and
to evidence the contract of transportation, the parties duly executed and
delivered what is popularly called Govt. bill of lading, whereby it was
stipulated that the carrier, Ynchausti, received the above-mentioned
supplies in apparent good condition, obliging itself to carry said supplies to
the place agreed upon.
Both shipments arrived with one case missing per shipment.
Ynchausti denied negligence. However, upon investigation, the Insular
Auditor decided that the leakages were due to Ynchausti's negligence. The
Insular Auditor deducted the amount of the lost goods from the entire
amount payable to Ynchausti. Petitioner refused to accept the warrant.
Hence, this action was filed.
Issue : Is Ynchausti liable for the loss? YES.
Ratio : Sec. 646 of the Administrative Code provided that when Govt.
property is transmitted from one source to another by carrier, it shall be
upon proper bill of lading or receipt, from such carrier; and it shall be the
duty of the consignee or his representative to make all notation of any
evidence of loss, shortage, or damage, on the bill of lading or receipt before
accomplishing it. It is admitted by petitioner that the consignee, at the time
PAGE 15
xxx
Art. 1739. In order that the common carrier may be exempted
from responsibility, the natural disaster must have been the proximate and
only cause of the loss. However, the common carrier must exercise due
diligence to prevent or minimize loss before, during and after the occurrence
of flood, storm, or other natural disaster in order that the common carrier
may be exempted from liability for the loss, destruction, or deterioration of
the goods. The same duty is incumbent upon the common carrier in case of
an act of the public enemy referred to in Art. 1734 (2).
Art. 1740. If the CC negligently incurs in delay in
transporting the goods, a natural disaster shall not free such carrier
from responsibility.
Art. 361. Merchandise shall be transported at the risk and
venture of the shipper, if the contrary has not been expressly
stipulated.
As a consequence, all the losses and deteriorations which
the goods may suffer during the transportation by reason of fortuitous
event, force majeure, or the inherent nature and defect of the goods,
shall be for the account and risk of the shipper.
Proof of these accidents is incumbent upon the carrier.
(Code of Commerce.)
4 Agbayani:
Effect of New Civil Code.-- Transportation of the merchandise "at the risk
and venture of the shipper" means that the shipper will suffer losses and
deterioration arising from fortuitous event, force majeure, or inherent nature
and defects of the goods. It does not mean that the carrier is free from
liability for losses and deterioration arising from his negligence or fault, w/c
is presumed. Thus construed, par. 1 of Art. 361 is not inconsistent with Art.
1735 of the NCC.
Requisites for defense of natural disaster:
1. Art. 1739 -- natural disaster must have been the proximate and
only cause of the loss
2. The CC must exercise due diligence to prevent or minimize the
loss before, during and after the occurrence of flood, storm, or other natural
disaster. If the CC does not exercise due diligence in minimizing the loss,
he may yet be held liable notwithstanding the fact that the loss, destruction
or deterioration of the goods arose out of natural disaster.
3. Art. 1740 -- the CC must not be in delay. If the CC incurs in
delay, a natural disaster shall not free it from responsibility. Under Art. 1165
par. 3, if the obligor incurs delay, he shall be responsible for any fortuitous
event until he has effected delivery.
However, if between the delay or refusal of the CC to transport
the goods and the loss of the goods due to an act of God there intervened
the shipper's negligence, thus causing a break in the chain of causation
between the act of God which caused their loss and the CC's fault, the act
of God is the proximate cause of the loss and the carrier's delay or refusal
to transport the goods, is merely the remote cause. In such cases, the
shipper is not even entitled to set up the claim of contributory negligence. It
is then necessary that it be established that the CC was guilty of a willful or
negligent act and that between this willful or negligent act and the act of
God, no negligence on the part of the shipper intervened.
Accident due to defects of carrier not caso fortuito.-- Accidents caused
either by defects in the carrier or through the negligence of the carrier is not
caso fortuito. The passenger or shipper has every right to presume that the
carrier is perfectly in good condition and could transport him safely and
securely to his destination
Tan Chiong San vs Ynchausti & Co., 22 Phil 152
F:
Ynchausti and Co. received from Ong Bien Sip in Manila 205
bundles of goods to be conveyed by YC's steamer to Gubat in Sorsogon,
and there to be transhipped to another vessel belonging to YC and
transported to Catarman, in Samar. As the lorcha Pilar, which was to
transport the goods to Catarman was not yet in Gubat when the cargo
arrived, the cargo was stored in YC's warehouse.
Several days later, the lorcha arrived and the goods were loaded.
However, as the lorcha was being towed, a storm arose, drove the lorcha to
the shore and wrecked it, scattering the goods on the beach. YC's laborers
proceeded to gather up the goods. As it was impossible to preserve the
PAGE 16
had reserved the right to carry the cargo on deck. The bill of lading plainly
showed that the cargo would be so carried. The plaintiff was duly notified as
to the manner by which was the cargo was to be shipped. They only
protested after the bill had been negotiated at the bank and even when there
was time to stop the shipment, they failed to give the necessary instructions
thereby manifesting acquiescence.
In every contract of affreightment, losses by dangers of the seas
are excepted from the risk which the carrier takes upon himself whether the
exception is expressed in contract or not. The exception is made by law
and falls within the general principle that no one is responsible for fortuitous
events. But then this general law is subject to the exception that when the
inevitable accident is preceded by fault of the carrier, without which it would
not have happened, then he becomes responsible for it.
The carrier is responsible for safe and proper storage of the
cargo, and there is no doubt that by the general maritime law he is bound to
secure the cargo safely under deck. If he carries the goods on deck without
the consent of the shipper and the goods are damaged or lost in
consequence of being exposed, the carrier cannot protect himself by
showing that they were damaged or lost by the dangers of the sea. When
the shipper consents to his goods being carried on deck, he takes the risk
upon himself.
If goods shipped are found to have been damaged, the burden of
proof is on the carrier to show that the damage was due to fortuitous events.
But, even if the damage is caused by one of the excepted causes, the
carrier is still responsible if the injury might have been avoided by the
exercise of reasonable skill and attention on their part. However, in this
case, where the shipper consented to the conditions of carriage, the burden
of proof is shifted to the shipper.
As there is no allegation or proof of negligence on the part of the
carrier in protecting the cargo from rain or sea water and as the complaint
clearly indicates that the damage was due to it being kept on deck, and
such manner of carriage having been consented to by the plaintiff, the
defendant is absolved. It is not permissible for the court, in the absence of
any allegation or proof of negligence, to attribute negligence to the ship's
employees in the matter of protecting the goods from rains and storms.
Eastern Shipping Lines vs IAC, 150 SCRA 463
Issue: Should petitioner be exempted from liability under Art. 1734 on the
ground that the loss of the vessel by fire comes under the phrase "natural
disaster or calamity?" NO.
Ratio: Fire may not be considered a natural disaster or calamity. This must
be so as it arises almost invariably from some act of man or by human
means. It does not fall within the category of an act of God unless caused
by lightning or by another natural disaster or calamity. It may even be
caused by the actual fault or privity of the carrier. Art. 1680 which considers
fire as an extra-ordinary fortuitous event does not apply since it refers only
to leases of rural lands where a reduction of rent is allowed when more than
1/2 of the fruits have been lost due to such event.
As the peril of fire is not comprehended under Art. 1734, Art.
1735 applies and the CC shall be presumed to have been at fault or to have
acted negligently, unless it proves extra-ordinary diligence. The burden is
on the CC.
The LC and the CA found that there was lack of diligence on the
part of CC amounting to actual fault. Even if the fire were to be considered
a natural disaster under Art. 1734, it is required under Art. 1739 that the
disaster must have been the proximate and only cause of the loss, and that
the CC exercised due diligence to prevent or minimize the loss before,
during or after the occurrence of the disaster. Nor may petitioner seek
refuge under COGSA since fire is only an exempting circumstance if not
caused by actual fault or privity of the carrier.
Issue: On the $500 Per Package Limitation
Ratio: Petitioner carrier avers that its liability should not exceed $500 per
package as provided in Section 4(5) of the COGSA, which reads:
Issues: (1) WON plaintiff consented to having the cargo carried on deck.
YES.
(2) WON defendant was negligent and thus liable for the damage
to the cargo. NO.
"(5) Neither the carrier nor the ship shall in any event be or
become liable for any loss or damage to or in connection with the
transportation of goods in an amount exceeding $500 per package xxx or in
case of goods not shipped in packages, per customary freight unit, or the
equivalent of that sum in other currency, unless the nature and value of
such goods have been declared by the shipper before shipment and
inserted in the bill of lading."
Ratio: While Martini would have greatly preferred for the cargo to be carried
under the hatches, they nevertheless consented for it to go on deck.
Codina, an EE of Martini, if attentive to the interests of his company, must
have known from the tenor of the guaranty which he signed that defendant
PAGE 17
Rule: As long as the damage to the goods was due purely to the
inherent nature or defect of the goods or of the containers thereof, the CC
cannot be held responsible. However, under 1742, the CC must exercise
due diligence to forestall or lessen the loss for it to completely escape
liability.
Govt. vs Ynchausti, 40 Phil 219
F:
Plaintiff shipped a cargo of roofing tiles from Manila to Iloilo on a
vessel owned by Ynchausti. Defendant stamped on the bill of lading the
condition that the goods have been accepted for transportation subject to
the conditions prescribed by the Insular Collector of Customs. The tiles were
delivered by defendant to the consignee of the plaintiff at Iloilo. Upon
delivery, it was found that some of the tiles had been damaged. The LC
absolved the defendant from any liability since the defendant was able to
prove that the tiles were leaded, stored and discharged by hand labor and
not by any mechanical device. Defendant proved, without dispute from the
plaintiff, that there was no negligence on its part, the tiles being discharged
by handlabor and not by mechanical device.
Issue : WON the terms and conditions of the bill of lading were binding upon
the plaintiff. YES.
Ratio: The defendant placed said stamp upon the bill of lading before the
plaintiff shipped the tiles, and that having shipped the tiles under said bill,
with the terms and conditions of carriage stamped thereon, the govt. must
be deemed to have assented to said terms and conditions. The binding
effect of the conditions stamped on the bill of lading did not proceed from
the Collector of Customs, but from the actual contract which the parties
made. Each bill of lading is a contract and the parties thereto are bound by
its terms.
The defendant, to free itself from liability, was only obliged to
prove that the damages suffered by the tile were by virtue of the nature or
defect of the articles. The plaintiff, to hold the defendant liable, was obliged
to prove that the damage to the tiles, by virtue of their nature, occurred on
account of the defendant's negligence or because the latter did not take
precaution usually adopted by careful persons.
The defendant proved,and the plaintiff did not attempt to dispute
that the tiles were of a brittle and fragile nature and that they were delivered
to the defendant without any packing or protective covering. The plaintiff,
not having proved negligence on the part of the defendant, is not entitled to
recover damages.
Southern Lines vs CA, 4 SCRA 256
F:
The city of Iloilo requisitioned for rice from NARIC in Manila.
NARIC shipped from Manila to Iloilo 1726 sacks of rice on board the SS
Gen. Wright belonging to Southern Lines. After the city paid for the rice, it
was noted that 41 sacks were missing. The city filed a complaint against
PAGE 18
authority. The carrier, however, failed to show that the acting mayor had the
power to issue the disputed order or that it was lawful or issued under legal
process of authority. The order was part of the pressure by the mayor to
shakedown Tumambing for P 5,000. The order did not constitute valid
authority for Ganzon to carry out.
In any case, the intervention of the municipal officials was not of
a character that would render impossible the fulfillment by the carrier of its
obligation. The petitioner was not duty bound to obey the illegal order to
dump into the sea the scrap iron. There is absence of sufficient proof that
the issuance of the order was attended with such force or intimidation as to
completely overpower the will of the carrier's EEs.
Melencio-Herrera, Dissenting: Through the order or act of competent public
authority, the performance of the contract was rendered impossible. The
captain has no control over the situation just as Tumambing had no control
over the situation.
3. Duration of Extraordinary Responsibility
Art. 1736. The extraordinary responsibility of the common
carrier lasts from the time the goods are unconditionally placed in the
possession of, and received by the carrier for transportation 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 Art. 1738.
Art. 1737. The common carrier's duty to observe extraordinary diligence in the vigilance over the goods remains in full force
and effect even when they are temporarily unloaded or stored in
transit, unless the shipper or owner has made use of the right of
stoppage in transitu.
Art. 1738. The extra-ordinary liability of the common carrier
continues to be operative even during the time the goods are stored in
a warehouse of the carrier at the place of destination until the
consignee has been advised of the arrival of the goods and has
reasonable opportunity thereafter to remove them or otherwise
dispose of them.
4 Agbayani:
When carrier's responsibility begins.-- Under Art. 1738, the extra-o
responsibility of the CC begins from the time the goods are delivered to the
carrier. The delivery to the CC must place the goods to be transported
unconditionally in the possession of the CC and the CC must receive them.
Otherwise, the extra-ordinary responsibility of the CC will not commence.
When carrier's responsibility terminates.-- Under 1738, the extraordinary responsibility of the CC is terminated at the time the goods are
delivered to the consignee or the person who has a right to receive them
(actual or constructive delivery).
Constructive delivery: Notice by the CC that the cargo had
already arrived, placing them at the disposal of the shipper or consignee
releases CC from extra-ordinary responsibility. From such moment the
consignee or shipper should exercise over the cargo the ordinary control
pertinent to ownership (should unload cargo from the CC)
Shipper bound to observe all diligence in obtaining delivery of
goods.-- The shipper is bound to observe all diligence in obtaining delivery
of the goods. Once the goods are delivered, the extra-ordinary
responsibility of the CC ceases.
Liability of shipper for delay in obtaining delivery of goods,
demurrage.-- The shipper is liable for lost earnings occasioned by the
unnecessary delay in the use of the vehicles belonging to the carrier, due in
turn to the failure of the former, upon receipt of notice of the arrival of the
goods at the place of destination, to unload forthwith and take away the
cargo from the vehicles. This is a charge for demurrage (addtl. service
provided by CC)
Effect of storing in transit.-- Under 1737, the temporary unloading or
storage of the goods during the time that they are being transported does
not interrupt the extra-ordinary responsibility of the CC
Exception: Where the shipper or owner exercises its right of
stoppage in transitu (the act by which the unpaid vendor of goods stops
their progress and resumes possession of them, while they are in the
course of transit from him to the purchaser, and not yet actually delivered to
the latter. This is exercised when the buyer is or becomes insolvent.)
PAGE 19
where the CC loses control of the goods because of custom regulations and
it is unfair that it be made responsible for any loss or damage during such
interregnum.
APL vs Klepper, 110 Phil 243
F:
Klepper shipped one lift van containing personal and household
effects from Yokohama to Manila. While the lift van was being unloaded by
crane, it fell on the pier damaging its contents. The TC found for Klepper.
Held: APL does not question the finding that the damage was due its
negligence but contends that its liability cannot exceed $500 based on the
bill of lading and Sec 4(5) of the COGSA. Regardless of its negligence, the
carrier's liability would attach because being a CC, its responsibility is extraordinary and lasts from the time the goods are placed in its possession until
they are delivered, actually or constructively, to the consignee or to the
person who has a right to receive them.
The carrier should only pay $ 500; the shipper who accepted the
bill of lading is bound by its terms. COGSA is merely suppletory to the
provisions of the NCC which govern the contract.
4. Agreement Limiting Liability
(a) As to diligence required
Art. 1744. A stipulation between the common carrier and the
shipper or owner limiting the liability of the former for the loss or
destruction, or deterioration of the goods to a degree less than extraordinary diligence shall be valid, provided it be:
(1) In writing, signed by the shipper or owner;
(2) Supported by a valuable consideration other than the
service rendered by the CC; and
(3) Reasonable, just and not contrary to public policy.
Art. 1745. Any of the following or similar stipulations shall
be considered unreasonable, unjust and contrary to public policy:
(1) That the goods are transported at the risk of the owner or
shipper;
(2) That the common carrier will not be liable for any loss,
destruction or deterioration of the goods;
(3) That the common carrier need not observe any diligence
in the custody of the goods;
(4) That the common carrier shall exercise a degree of
diligence less than that of a good father of a family, or of a man of
ordinary prudence in the vigilance over the movable transported;
(5) That the common carrier shall not be responsible for the
acts or omissions of his or its employees;
(6) That the common carrier's liability for acts committed by
thieves, or of robbers who do not act with grave or irresistible threat,
violence or force, is dispensed with or diminished;
(7) That the common carrier is not responsible for the loss,
destruction, or deterioration of goods on account of the defective
condition of the car, vehicle, ship, airplane or other equipment used in
the contract of carriage.
Art. 1751. The fact that the common carrier has no
competitor along the line or route, or a part thereof, to which the
contract refers shall be taken into consideration of the question of
whether or not a stipulation limiting the common carrier's liability is
reasonable, just and in accordance with public policy.
(b) As to amount liability
Art. 1749. A stipulation that the common carrier's liability is
limited to the value of the goods appearing in the bill of lading, unless
the shipper or owner declares a greater value, is binding.
Art. 1750. A contract fixing the sum that may be recovered
by the owner or shipper for the loss, destruction, or deterioration of
the goods is valid, if it is reasonable and just under the circumstances,
and has been fairly and freely agreed upon.
Ysmael vs Barreto, 51 Phil 90
F:
Plaintiff sought to recover from defendant the alleged value of 4
cases of merchandise which it delivered to a vessel of defendant at the port
PAGE 20
The fact that the 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 plaintiff was aware of those conditions such that he had
"fairly and freely agreed" to those conditions. PAL has admitted that
passengers do not sign the ticket. Also the carrier cannot limit his liability
for injury or loss of goods shipped when such injury or loss was caused by
its own negligence. (Arts. 1734, 1735)
Held: The evidence shows that 164 cases were shipped valued at P 2,500
a case. The limit of defendant's liability for each case for loss or damage
from any cause or for any reason, would put it in the power of the defendant
to take the whole cargo of 164 cases at a value of P 300/case, or less than
1/8 of its actual value. If that rule should be sustained, no silk would ever
be shipped. Such limitation of value is unconscionable and void as against
public policy.
The validity of stipulations limiting the carrier's liability is to be
determined by their reasonableness and their conformity to the sound public
policy. It cannot lawfully stipulate for exemption from liability unless such
exemption is just and reasonable and unless the contract is freely and fairly
made. No contractual limitation is reasonable which is subversive of public
policy. A CC cannot limit its liability for injury or loss where such is caused
by its own negligence, unskillfulness or carelessness of its EEs. The rule
rests on public policy. The shipper and CC are not on equal terms; the
shipper is entirely at the mercy of the CC unless protected by the law. Such
contracts are wanting in the element of voluntary assent.
The action was brought within reasonable time considering the
distance between Surigao and Manila and the fact that plaintiff had to make
a full investigation to determine liability. Stipulations limiting the time for
bringing suit must be reasonable, otherwise they can be declared void.
F:
Atty. Ong Yiu was a passenger on a PAL Cebu-Butuan flight to
attend court hearings in Butuan. His suitcase was accidentally sent to
Manila. PAL-Manila sent the suitcase to Butuan but the lock had been
opened and a folder containing court documents was missing. Plaintiff
refused to accept the luggage. PAL-Cebu delivered the luggage to Ong Yiu
with the promise to investigate the matter. Plaintiff sued and was awarded
moral and exemplary damages. CA reversed holding that PAL was guilty of
simple negligence and denied moral and exemplary damages but ordered
PAL to pay P100, the baggage liability assumed by it under the condition of
carriage printed on the back of the ticket.
Held: PAL incurred delay in the delivery of petitioner's luggage. However,
there was no bad faith. The liability of PAL was limited to the stipulations
printed on the back of the ticket.
While the passenger had not signed the plane ticket, he is
nevertheless bound by the provision thereof; such provisions have been
held to be part of the contract of carriage and valid and binding upon the
passenger regardless of the latter's lack of knowledge or assent to the
regulation. It is what is known as a contract of adhesion wherein one party
imposes a ready made form of contract on the other; it is not entirely
prohibited. The one who adheres to the contract is in reality free to reject it
entirely; if he adheres, he gives his consent. A contract limiting liability upon
an agree valuation does not offend against the policy of the law forbidding
one from contracting against his own negligence.
Considering that petitioner had failed to declare a higher value for
his baggage, he cannot be permitted a recovery in excess of P 100.00.
Besides, passengers are advised not to place valuable items inside their
baggage. Also, there is nothing in the evidence to show the actual value of
the goods allegedly lost by petitioner.
PAN AM vs IAC, 164 SCRA 268
F:
This is a petition filed by Pan Am to limit its liability for lost
baggage containing promotional and advertising materials for films to be
exhibited in Guam and the US, clutch bags, barong tagalogs and personal
belongings of Rene Pangan to the amount specified in the airline ticket
absent a declaration of a higher valuation and payment of additional
charges.
Pan Am contends that its liability for lost baggage is limited to
$600 ($20 x 30 kilos) as the latter did not declare a higher value for his
baggage. Such stipulation is printed at the back of the ticket.
Held : Pan Am cited Ong Yiu vs CA. Such case is squarely applicable in this
case. The ruling in Shewaram vs PAL is inapplicable since it was premised
on the fact that the conditions printed at the back of the ticket were so small
and hard to read.
Liability is limited to $600 as stipulated at the back of the ticket.
The SC reversed the CA ruling awarding respondent damages for
lost profits. The rule laid down in Mendoza vs PAL provides that before
damages can be awarded for loss of profits on account of delay or failure of
delivery, it must have appeared that CC had notice at the time of delivery to
him of the particular circumstances attending the shipment, and which
probably would lead to such special loss if he defaulted. In the absence of
a showing that Pan Am's attention was called to the special circumstances
requiring prompt delivery of the luggage, it cannot be held liable for the
cancellation of respondent's contracts as it could not have foreseen such an
eventuality when it accepted the luggage for transit.
Pan Am vs Rapadas, 209 SCRA 67
F:
Jose Rapadas was en route from Guam to Manila. While
standing in line to board the flight, he was ordered by Pan Am's handcarry
control agent to check in his Samsonite attache case. He protested on the
ground that other passengers were permitted to handcarry bulkier
baggages. He tried to check-in without having to register his attache case.
He was however forced to register his baggage. He gave his attache case
to his brother who checked it in for him without declaring its contents or the
PAGE 21
PAGE 22
Art. 2001. The act of a thief or robber, who has entered the
hotel is not deemed force majeure, unless it is done with the use of
arms or through irresistible force.
4 Agbayani:
Art. 2002. The hotelkeeper is not liable for compensation if
the loss is due to the acts of the guest, his family, servants or visitors,
or if the loss arises from the character of the things brought into the
hotel.
PAGE 23
F:
Landicho boarded a BTC bus. Before he did so, the conductor
helped him in placing his two baskets of chicken inside the running board.
After a distance, he claimed that he noticed one cage falling and he called
the conductor's attention who did not respond. He tried to fix it himself
resulting in his fall in which he suffered injuries.
Held : The facts show that the cage was not about to fall. Plaintiff was
probably dizzy or sleepy that he fell from the truck.
It is true that defendant being a CC is bound to transport its
passengers from the point of origin to the place of destination, but the duty
does not encompass all the risks attendant to a passenger in transit, for
then the co. would be a good source of stipend for a family who would like
to end it all by simply boarding, paying the fare and intentionally falling off.
It is enough for the CC's EEs to see to it that the passenger places himself
safely inside the vehicle, that it is operated carefully and that its mechanism
is perfectly alright to prevent mishaps. It would be unreasonable to exact
upon operators to determine beforehand whether a passenger is likely to fall
dizzy or sleepy on the way, for that is the lookout of the passenger himself.
A passenger must see to it that he seats himself in a safe portion of the
vehicle.
Necesito vs Paras, 105 Phil 75
F:
A mother and son boarded a passenger autotruck of the Phil.
Rabbit Bus Lines. While entering a wooden bridge, its front wheels swerved
to the right, the driver lost control and the truck fell into a creek. The mother
drowned; the son was injured.
Held : While the carrier is not an insurer of the safety of the passengers, it
should nevertheless be held answerable for the flaws of its equipment if
such flaws were discoverable. The liability of the CC rests upon negligence
PAGE 24
fact that the person transported has been carried to his destination if the
person remains in the premises to claim his baggage.
The test is the existence of a reasonable cause as will justify the
presence of the passenger near the vessel.
A CC is bound to carry its passengers as far as human care and
foresight can provide, using the utmost diligence of a very cautious person
with due regard for all circumstances.
PAL vs CA, G.R. 82619, Sept. 1993
4 Agbayani:
When relationship of carrier and passenger terminates.-- The relation of
CC and passenger does not cease at the moment that the passenger alights
from the CC's vehicle at a place selected by the CC at the point of
destination, but continues until the passenger had reasonable time or a
reasonable opportunity to leave the CC's premises. What is a reasonable
time or a reasonable delay within this rule is to be determined from all the
circumstances
La Mallorca vs CA, 17 SCRA 739
F:
Husband and wife together with minor children boarded a La
Mallorca bus. They alighted from the bus. The father returned to the bus to
get their baggage. He was followed by his daughter. While the father was
still on the running board awaiting for the conductor to give his baggage, the
bus stated to run so that the father had to jump. His daughter was run over
and was killed. The bus co. contended that when she was killed, she was
no longer a passenger and the contract of carriage had terminated.
Held: Whether or not the relation between carrier and passenger does not
cease at the moment the passenger alights from the carrier's premises is to
be determined from the circumstances.
In this case, there was no utmost diligence. The driver stopped
the bus but did not turn off the engine. He started to run the bus even
before the conductor gave him the signal. The presence of passengers near
the bus was not unreasonable and the duration of the responsibility still
exists.
Bataclan vs Medina, 102 Phil 181
F:
The bus of Medina Trans left Cavite for Pasay with 18
passengers. Around dawn, the front tires burst and the vehicles began to
zigzag until it fell into a canal and turned turtle. Some passengers were
able to get out while four were trapped including Bataclan. Later, 10 men
came to help, one of them carrying a lighted torch, fueled by petroleum. A
fire started, burning the bus and the 4 passengers. Gas had leaked when
the bus overturned.
Held: The proximate cause of the death was the overturning of the vehicle
which was followed by the negligence of the driver and the conductor who
were on the road walking back and forth. They should have known that with
the position of the bus, leakage was possible aside from the fact that gas
when spilled can be smelled from a distance. The failure of the driver and
conductor to have cautioned or taken steps to warn rescuers not to bring a
lighted torch too near the bus constitutes negligence on the part of the
agents of the carrier.
Aboitiz vs CA 179 SCRA 95
F:
A farmer boarded a boat owned by Aboitiz at Mindoro bound for
Manila. When the vessel arrived, Pioneer Stevedoring took over control of
the cargoes loaded at the vessel and placed its crane alongside the vessel.
One hour after he disembarked, he went back to get his cargo but the crane
hit him and he died.
Held: Aboitiz is still liable for his death under the contract of carriage. The
relation of carrier and passenger continues until the passenger has been
landed at the port of destination and has left the vessel owner's dock. Once
created the relationship will not ordinarily terminate until the passenger has
safely alighted from the carrier's conveyance or had reasonable opportunity
to leave the carrier's premises. All persons who remain on the premises a
reasonable time after leaving the conveyance are to be deemed passengers
and what is reasonable time is to be determined from all circumstances and
includes a reasonable time to see after his baggage and prepare for his
departure. The CC-passenger relationship is not terminated merely by the
F:
Pedro Zapatos was among 21 passengers on a PAL flight from
Cebu to Ozamis. The flight was Cebu-Ozamis-Cotabato. Fifteen minutes
before landing in Ozamis, the pilot received a message that the airport was
closed due to heavy rains and inclement weather and that he should
proceed to Cotabato City. In Cotabato, PAL informed the passengers of
their options and that due to limited number of seats in the other flights, the
basis for priority would be the check-in sequence at Cebu. Zapatos chose to
return to Cebu but was not accommodated because he checked in as
passenger no. 9. However, his personal belongings including a camera
from Japan were still on board the flight to Manila. He tried to stop the
departure but his plea fell on deaf ears. He was given a free ticket to Iligan
City which he received under protest. He was left at the airport. PAL neither
provided him with transportation from the airport to the city proper nor food
and accommodation for his stay in Cotabato City. The next day, he
purchased a ticket to Iligan City. He informed PAL that he would not use the
free ticket because he was filing a case against PAL. His personal
belongings were never recovered.
PAL denied that it unjustifiably refused to accommodate Zapatos.
It alleged that there was simply no more seat for him on Flight 560 to
Manila; and that there was force majeure which was a valid justification for
the pilot to bypass Ozamis City and proceed directly to Cotabato City. PAL
contended that it did not unjustifiably deny his demand for priority over
confirmed passengers which they could not satisfy in view of the limited
seats. PAL also asserted that it should not be charged with the task of
looking after the passengers' comfort and convenience because the
diversion of the flight was due to a fortuitous event, and that if made liable,
an added burden is given to PAL which is over and beyond its duties under
the contract of carriage. It argued that granting there was negligence, PAL
cannot be liable in damages in the absence of fraud or bad faith.
The RTC held in favor of plaintiff. The CA affirmed.
Held: The passenger's complaint touched on PAL's indifference and
inattention to his predicament and not on PAL's refusal to comply with his
demand for priority over the other passengers. He claimed that he was
exposed to the peril of Muslim rebels and that he suffered mental anguish,
mental torture, social humiliation, besmirched reputation and wounded
feeling. He referred to PAL's apathy.
The contract of air carriage is a peculiar one. Being imbued with
public interest, the law requires common carriers to carry the passengers
safely as far as human care and foresight can provide, using the utmost
diligence of very cautious persons, with due regard for all the
circumstances. In Air France vs Carrascoso, the SC held that the contract
to transport passengers is quite different from any contractual relation in that
it invites people to avail of the comforts and advantages it offers. The
diversion of the flight was due to a fortuitous event. However, such did not
terminate PAL's contract with its passengers. Being in the business of air
carriage, PAL is deemed equipped to deal with situations like the case at
bar. The relation of carrier and passenger continues until the latter has been
landed at the port of destination and has left the CC's premises. Hence,
PAL necessarily would still have to exercise extraordinary diligence in
safeguarding the comfort, convenience and safety of the stranded
passengers until they have reached their final destination. PAL was
therefore remiss in its duty of extending utmost care to Zapatos while being
stranded in Cotabato City.
The CA held : "While the failure of Zapatos to reach his
destination xxx in accordance with the contract of carriage was due to the
closure of the airport on account of rain and inclement weather xxx it
becomes the duty of PAL to provide all means of comfort and convenience
to its passengers when they would have to be left in a strange place in case
of such by-passing. If the cause of non-fulfillment of the contract is due to a
fortuitous event, it has to be the sole and only cause. Since part of the
failure to comply with the obligation to deliver its passengers safely to their
destination lay in PAL's failure to provide comfort and convenience to its
stranded passengers using extraordinary diligence, the cause of nonfulfillment is not solely and exclusively due to fortuitous event, but due to
something that PAL could have prevented, PAL becomes liable to the
passenger." However the SC found that although PAL was remiss in its duty
of extending utmost care to Zapatos while being stranded in Cotabato City,
PAGE 25
PAGE 26
PAGE 27
CC would only be negligent if the tort caused by a third person could have
been foreseen and prevented by them.
The injury was in no way connected to the performance of the
obligation of the bus company. It was caused by a stranger, over which the
carrier had no control or even knowledge of, and which could not have been
prevented.
F:
supra. A passenger stabbed a PC officer which caused a
commotion which resulted in the death of 2 passengers.
Held: The NCC unlike the OCC makes the CC absolutely liable for
intentional assaults committed by its EEs upon its passengers (Art. 1754).
The CC's liability is based on either (1) respondeat superior or (2) the CC's
implied duty to transport the passenger safely. Under respondeat superior
(w/c is the minority view), the CC is liable only when the act of the EE is
within the scope of his authority and duty. Under the second view, the CC is
liable as long as the assault occurs within the course of the performance of
the EE's duty. It is no defense that the act was done in excess of authority
or in disobedience of the CC's orders. The CC's liability is absolute in the
sense that it practically secures the passengers from assaults committed by
its own EEs. Three cogent reasons underlie this rule : (1) the special
undertaking of the CC requires that it furnish the passengers the full
measure of protection afforded by the exercise of the high degree of care
prescribed in the law, from violence and insults in the hands of strangers,
other passengers, and from its own servants charged with the passenger's
safety; (2) liability is based on the CC's confiding in the servant's hands the
performance of his contract to safely transport the passenger, delegating
therewith the duty of protecting the passenger with utmost care prescribed
by law; (3) as between the CC and the passenger, the CC must bear the risk
of wrongful acts or negligence of the CC's EEs against passengers since it
has the power to select and remove them.
It is the CC's obligation to select its drivers with due regard not
only to their technical competence and physical ability but also to their total
personality, including patterns of behavior, moral fiber, and social attitude.
Held: The CC raised the defense of caso fortuito. The running amuck of
the passenger was the proximate cause of the incident and is within the
context of force majeure. However, in order that a CC may be absolved from
liability in case of force majeure, it is not enough that the accident was
caused by force majeure. The CC must still prove that it was not negligent
in causing the injuries resulting from such accident. It must prove that there
was no negligence or lack of care and diligence on the part of the CC.
The TC and the CA had conflicting findings of fact. The SC
upheld the findings of the CA-- the driver did not immediately stop the bus
at the height of the commotion; the bus was speeding from a full stop; the
victims fell from the bus door when it was opened or gave way while the bus
was still running; the conductor panicked and blew his whistle after people
had already fallen off the bus; the bus was not properly equipped with doors
in accordance with law. It is therefore clear that the petitioners have failed
to overcome the presumption of fault and negligence found in the law
governing CCs.
The CC's argument that it is not an insurer of its passengers
deserves no merit in view of the failure of the CC to prove that the deaths of
the 2 passengers were exclusively due to force majeure and not to the
failure of the CC to observe extraordinary diligence in transporting safely the
passengers to their destinations as warranted by law.
passengers
Law does not protect negligence of passenger.-- Law does not protect
negligence of passenger to the extent of doing harm or damage upon a
public utility
4 Agbayani:
The CC is responsible for such willful acts or negligence of other
passengers or of strangers, provided that the CC's EEs could have
prevented or stopped the act or omission through the exercise of ordinary
diligence. If the injury could not have been avoided by the exercise of
ordinary diligence on the part of the EEs of the CC, the CC is not liable
Notice that the law speaks of injuries suffered by the passenger
but not his death. However, there appears to be no reason why the
common carrier should not be held liable under such circumstances. The
word "injuries" should be interpreted to include "death." (Aguedo F.
Agbayani, COMMERCIAL LAW REVIEWER, 1988 ed.)
F:
While on a bus, an unidentified bystander hurled a stone at the
bus and hit Pilapil above his left eye. He sustained some injuries to his eye.
Held: The law does not make the CC an insurer of the absolute safety of its
passengers. Art. 1755 qualifies the duty of the CC in exercising vigilance to
only such as human care and foresight can provide. The presumption
created by law against the CC is rebuttable by proof that the CC had
exercised extraordinary diligence in the performance of its obligations and
that the injuries suffered were caused by fortuitous events. The liability of
the CC necessarily rests upon its negligence, or its failure to exercise the
degree of diligence required by law. Under Art. 1763, the diligence required,
with regards to its liability in cases when intervening acts of strangers
directly caused the injury, is the diligence only of a good father of a family
and not the extraordinary diligence generally required. The rule is not so
exacting as to require one charged with its exercise to take doubtful or
unreasonable precautions to guard against unlawful acts of strangers. The
F:
Held: The conduct of plaintiff in undertaking to alight while the train was yet
slightly underway was not characterized by imprudence and that he was not
guilty of contributory negligence.
The circumstances show that it was no means so risky for him to get off
while the train was yet moving. It is not negligence per se for a traveler to
alight from a slowly moving train.
Isaac vs A. L. Ammen
F:
supra. Passenger aboard a bus who placed his left arm on the
window lost his arm when the bus collided with a pick up.
PAGE 28
PAGE 29
F:
In 1960, Nicanor Padilla boarded the PAL flight from Iloilo to
Manila. The plane crashed on Mt. Baco, Mindoro. The plane, a PI-C133,
was manufactured in 1942 and was acquired by PAL in 1948. It had been
certified airworthy by the Civil Aeronautics Administration. As a result of
her son's
death, Mrs. Padilla demanded P 600,000 as actual and
compensatory damages plus exemplary damages and P 60,000 attorney's
fees.
Prior to his death, Nicanor Padilla was 29 years old, President
and General Manager of Padilla Shipping Co. at Iloilo City, and a legal
assistant of the Padilla Law Office. Upon learning of the death of her son,
she suffered shock and mental anguish, because her son who was still
single was living with her. Nicanor had life insurance of P 20,000, the
proceeds of which were paid to his sister. Eduardo Mate of the Allied
Overseas Trading Co. testified that the deceased was one of the
incorporators of the co. and also its VP with a monthly salary of P 455.
Isaac Reyes, auditor of Padilla Shipping Co., declared that the deceased
was President and General Manager and received a salary of P 1,500 per
month.
The RTC and the CA awarded damages of P 477,000 as
award for the expected income of the deceased, P 10,000 as moral
damages; P 10,000 as attorney's fees and to pay the costs. PAL appealed
the decision since accdg. to it, the court erred in computing the awarded
indemnity based on the life expectancy of the deceased rather than on the
life expectancy of the mother. Accdg. to it, the life expectancy of the
deceased or of the beneficiary, whichever is shorter, is used in computing
for amount of damages.
Held: Under Arts. 1764 and Article 2206 (1), the award of damages for
death is computed on the basis of the life expectancy of the deceased and
not of the beneficiary. In this case, the lower courts determined the
deceased gross annual income to be P 23,100 less P 9,200 as living
expenses, resulting in a net income of P 13,900. The lower court allowed
the deceased a life expectancy of 30 years. Multiplying his annual net
income by his life expectancy of 30 years, the product is P 417,000, which
is the death indemnity due to his mother and only forced heir.
Because of the long delay in this case, the mother already died
without being able to receive the indemnity she deserved. PAL is ordered to
pay her heirs the death indemnity with legal rate of interest of 6% per
annum.
3. Moral
Art. 2217. Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages may be recovered
if they are the proximate result of the defendant's wrongful act or
omission.
Art. 2216. No proof of pecuniary loss is necessary in order
that moral, nominal, temperate, liquidated or exemplary damages may
be adjudicated. The assessment of such damages, except liquidated
ones, is left to the discretion of the court, according to the
circumstances of each case.
Art. 2219. Moral damages may be recovered in the following
analogous cases :
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
xxx
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29,
30, 32, 34 and 35.
xxx
PAGE 30
F:
Plaintiffs made first class reservations with defendant air carrier,
in its Tokyo-SF flight, which reservation was confirmed and first class tickets
issued; but defendant's agent by mistake canceled plaintiff's reservations
and thereafter deliberately withheld from plaintiffs the information, letting
them go on believing that their first class reservations stood valid and
confirmed, expecting some cancellations of bookings would be made before
the flight time, which failed to occur. Upon arrival in Tokyo, only then were
the plaintiffs informed that there were no accommodations for them in the
first class, and they were constrained, due to pressing engagements in the
US, to take the flight as tourist passengers, which they did under protest.
Plaintiffs sued the defendant for moral and exemplary damages. The Rizal
CFI awarded the plaintiffs moral and exemplary damages and attorney's
fees. Upon plaintiff's MFR, said damages were increased in amount.
Held: In so misleading the plaintiffs into purchasing first class tickets in
conviction that they had confirmed reservations when in fact they had none,
defendant willfully and knowingly placed itself into position of having
breached its contract with plaintiffs.
Such actions of the defendant may indeed have been prompted
by nothing more than the promotion of its self-interest in holding on to
plaintiffs as passengers and foreclosing on their chances to seek the
service of other airlines that may have been able to afford to them first class
accommodations. All the same, in legal contemplation, such conduct
already amounts to action in BF. For bad faith means a breach of a known
duty through some motive of interest of ill will. It may not be humiliating to
travel as tourist passengers, but it is humiliating to be compelled to travel as
such, contrary to what is rightfully to be expected from the contractual
undertaking.
Plaintiffs are entitled to moral damages. Considering their
official, political, social and financial standing, they are awarded P 200,000
as moral damages, P 75,000 as exemplary damages all with interest, and
P 50,000 as attorney's fees considering the standing of plaintiff's counsel.
Ortigas vs Lufthansa, 64 SCRA 610
F:
Plaintiff took a first class accommodation on Lufthansa Airlines in
Rome for his trip to Manila, with confirmation of the airlines office, but its EE
on seeing plaintiff's Filipino nationality in his passport, disallowed him to
board the place and his seat was given to a Belgian. Plaintiff having a heart
ailment was advised by his physician to take only a first class seat, but he
was compelled to take an economy seat with a promise of the Lufthansa EE
that plaintiff will be transferred to first class in Cairo and onward to
Hongkong. Upon arrival in Cairo, the promise was not complied with.
Similar false representations were made to him at Dharnan and Calcutta.
Plaintiff sued the airlines for damages. TC awarded plaintiff moral and
exemplary damages.
Held: It is the opinion of the SC that moral damages should be raised from
P 100,000 to P 150,000 and exemplary damages be increased from P
30,000 to P 100,000. It is our considered view that when it comes to
contracts of common carriage, inattention and lack of care on the part of the
CC resulting in the failure of the passenger to be accommodated in the
class contracted for amounts to bad faith or fraud which entitles the
passenger to an award of moral damages in accordance with Art. 2220. In
this case, the breach appears to be of graver nature, since the preference
given to the Belgian passenger over plaintiff was done willfully and in
wanton disregard of plaintiff's rights and his dignity as a human being and as
a Filipino, who may not be discriminated against with impunity. Since both
Alitalia and Lufthansa are members of IATA and are agents of each other,
they are bound by the mistakes committed by a member such as the
mistake of the Alitalia EE to inform Ortigas that he could travel first class
instead of only being waitlisted. The award of higher damages is justified by
the aggravation of the situation when the Lufthansa EE at Rome falsely
noted on Ortigas' ticket that he was traveling economy from Rome to HK
and which was repeated four times. Also taken into consideration was the
heart condition of Ortigas which gave him added apprehension about
traveling economy against the advice of the doctor.
4. Exemplary
Art. 2229. Exemplary or corrective damages are imposed, by
way of example or correction for the public good, in addition to the
moral, temperate, liquidated or compensatory damages.
Art. 2232. In contracts and quasi contracts, the court may
award exemplary damages if the defendant acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner.
PAGE 31
PAGE 32
after private respondents received the cargo, the latter must necessarily be
liable. Petitioners relied on the doctrine that the issuance of the bill of lading
carries the presumption that the goods were delivered to the carrier issuing
the bill, for immediate shipment, and it is nowhere questioned that a bill of
lading is prima facie evidence of the receipt of the goods by the carrier. A
bill of lading is a written acknowledgment of the receipt of the goods and an
agreement to transport and deliver them at a specified place to a person
named or on his order. A bill of lading is a receipt as to the quantity and
description of the goods shipped and a contract to transport the goods to
the consignee or other person therein designated, on the terms specified in
such instrument.
SC: An airway bill estops the carrier from denying receipt of
goods. However, as between the shipper and the carrier, when no goods
have been delivered for shipment no recitals in the bill can estop the carrier
from showing the true facts. We must therefore allow the airline companies
to explain, why, despite the issuance of the airway bill and the date thereof,
they deny having received the remains of Saludo on Oct. 26, 1976.
As found by the CA, the airway bill was issued, not as evidence
of receipt of delivery but merely as confirmation for the booking made for the
SF-Manila flight scheduled on October 27, 1976. It was not until Oct. 28
that PAL received physical delivery of the body at SF. The extraordinary
responsibility of CC begins from the time the goods are delivered to the
carrier. This responsibility remains in force even when they are temporarily
unloaded or stored in transit, unless the shipper exercises the right of
stoppage in transitu, and terminates ony after the lapse of a reasonable time
for the acceptance of the goods by the consignee or other person entitled to
receive them. For such duty to commence, there must in fact have been
delivery of the cargo subject of the contract of carriage. Only when such
fact of delivery has been unequivocally esablished can the reqt. of
extraordinary responsibility arise.
As found by the CA, the body was really received by PAL on Oct.
28, 1976 and it was from such date that it became responsible for the
agreed cargo under the airway bill. Consequently, for the switching of
caskets prior thereto which was not caused by them and subsequent events
caused thereby, PAL cannot be held liable.
(2) Petitioners allege that even assuming CMAS was at fault, PAL would still
be liable because whoever brought the cargo to the airport or loaded it on
the plane did so as agent of PAL.
SC: This contention is without merit. When the cargo was
received from CMAS, Air Care Intl, PAL's agent and TWA had no way of
determining its actual contents, since the casket was hermetically sealed by
the Philippine Vice-Consul. They had to rely on the information given by
CMAS. No amount of inspection by the airlines could have guarded against
the switching that had taken place. They had no authority to unseal and
open the casket. It is the right of the carrier to require good faith on the part
of those persons who deliver goods to be carried by it. In the absence of
more definite information, the carrier has the right to accept shipper's marks
as to the contents of the package offered for transportation and is not bound
to inquire particularly about them. It can safely be said that a CC is entitled
to fair representation of the nature and value of the goods to be carried, with
the concomitant right to rely thereon, and that a carrier has no obligation to
inquire into the correctness or sufficiency of such information. The
consequent duty to conduct an inspection arises in the event that there
should be reason to doubt the veracity of such representations.
In this case, private respondents had no reason to doubt the truth
of the shipper's representations. The airway bill was issued on the basis of
such representations.
Neither can they be held accountable on the basis of petitioner's
theory that whoever brought the cargo to the airport or loaded it on the plane
did so as an agent of private respondents, so that even if CMAS was indeed
at fault, the liability would be attributed to the airlines. CMAS was not an
agent of private respondents. It was hired to handle all the necessary
shipping arrangements for the transportation of the remains. CMAS may be
classified as a forwarder, which is regarded as the agent of the shipper
(Pomierski) and not of the crrier. 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.
The facts of the case would point to CMAS as the culprit. In fact,
even the petitioners wrote CMAS entertaining serious doubts as to whether
they were responsible for the mix-up. But the court cannot rule on the
possible liability of CMAS as such is not at issue in this case and there has
not been convincing evidence on the matter.
(3) Petitioners contended that TWA by agreeing to transport the remains, it
made itself a party to the contract of carriage nad was therefore bound by
the airway bill. When TWA shipped the remains ten hours earlier than
scheduled, it allegedly violated the terms of the airway bill which
compounded, if not directly caused, the switching of the caskets. The EEs
PAGE 33
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PAGE 35
Nature : (1) each bill is a contract in itself and the parties are bound by its
terms
(2) a bill of lading is also a receipt
(3) it is also a symbol of the goods covered by it
A bill of lading is also a document of title. A document of title is
any document used in the ordinary course of business in the sale or transfer
of goods, as proof of the possession or control of goods, or authorizing or
purporting to authorize the possessor of the document to transfer or receive,
either by indorsement or by delivery, goods represented by such document.
(b) Form, Contents
B. Nature of Contract
Art. 349. A contract of transportation by land or waterways
of any kind shall be considered commercial:
1.
When it involves merchandise or any object of
commerce.
2. When, no matter what its object may be, the carrier is a
merchant or is customarily [habitually] engaged in transportation for
the public.
Requisites for a contract of transportation by land or water to be
commercial :
(1) transportation of merchandise is always commercial
(2) transportation of person or news is commercial only when the
CC is a merchant or is habitually engaged in transportation for the public
* principal requirement : the CC is a merchant or is habitually
engaged in transportation for the public; the object carried is of little
importance
A contract of air transportation may be regarded as commercial
since it is analogous to land and water transportation. The reason for its
non-inclusion in the Code of Commerce was that at the time of its
promulgation, air transportation on a commercial basis was not yet known.
C. Effect of Civil Code
Art. 1766. In all matters not regulated by this Code, the
rights and obligations of common carriers shall be governed by the
Code of Commerce and by special laws. (New Civil Code.)
Many of the items required in a bill of lading may be omitted with much
advantage to commerce, which aims to have the greatest number of
transactions in the last possible time especially in cases where there are
tariffs or regulations issued by the carrier company. In this case, the
circumstances relative to price, term and conditions of carriage may be
omitted and simple reference be made to the tariff and regulations under
which the transportation is to be made. (Art. 351)
D. Contract of Carriage
1. Bill of Lading
(a) Definition, Subject Matter
Art. 352. The bills of lading or tickets in cases of transportation of passengers may be diverse, one for persons and another
for baggage; but all of them shall bear the name of the carrier, the date
of shipment, the point of departure and arrival, the cost, and with
regard to the baggage, the number and weight of the packages, with
such other statements which may be necessary for their easy
identification.
A bill of lading may defined as a written acknowledgment of the
receipt of goods and an agreement to transport and to deliver them at a
specified place to a person named or on his order. It comprehends all
methods of transportation.
PAGE 36
B/L constitutes the legal evidence of the contract of transportation --> all
disputes between the parties regarding the execution and performance of
the contract shall be decided by the contents of the B/L issued by the CC
--> the law admits no exceptions other than falsity and material error in the
drafting of the B/L
As a contract expressing the terms and conditions upon which
the property is to be transported, it is to be regarded as merging all prior and
contemporaneous agreements of the parties, and in the absence of fraud,
concealment or mistake, its terms or legal import, when free from ambiguity
cannot be explained nor added to by parol (Parol Evidence Rule)
1. When it commences
Art. 355. The liability of the carrier shall begin from the
moment he receives the merchandise, in person or through a person
entrusted therewith in the place indicated for their reception.
The responsibility of the CC commences from the moment he receives the
merchandise --> the delivery must be made to him personally or through his
duly authorized agent, and at the place indicated for receiving the
merchandise
2. Refusal to Transport
2. Route
PAGE 37
Where there is no agreed route, the carrier must select one which
may be the shortest, least expensive and practically passable
4. Delivery
3. Care of Goods
PAGE 38
Where damage renders the goods useless for sale and consumption for the
purposes for which they are properly destined:
1. if the damage affects all goods, the consignee may abandon
all the goods to the CC who shall pay the corresponding damages
2. if the damage affects only some of the goods, the consignee
may abandon only the damaged goods --> but if the consignee can prove
that it is impossible to conveniently use the undamaged goods in that form,
without the damaged goods, the law authorizes the consignee to abandon
all the goods
Art. 366. Within the twenty-four hours following the receipt
of the merchandise a claim may be made against the carrier on
account of damage or average found upon opening the packages,
provided that the indications of the damage or average giving rise to
the claim cannot be ascertained from the exterior of said packages, in
which case said claim shall only be admitted at the time of the receipt
of the packages.
After the periods mentioned have elapsed, or after the
transportation charges have been paid, no claim whatsoever shall be
admitted against the carrier with regard to the condition in which the
goods transported were delivered.
In case of damaged goods, the damage may either be (1) ascertainable only
by opening of the packages, or (2) ascertainable from the outside part of the
package
In Case 1, the claim against the CC for damages must be made
within 24 hours following the receipt of the merchandise
In Case 2, the claim must be made at the time of receipt
The claim must be made before the payment of transportation
charges
** otherwise, no action for damages may be maintained against
the CC
When period begins to run : period begins to run when the
consignee received possession of the goods such that he may exercise
over it the ordinary control pertinent to ownership
There must be delivery of the merchandise by the CC to the
consignee at the place of destination --> Art. 366 applies only to cases of
claims for damage to goods actually turned over by the CC and received by
the consignee
The conditions under Art. 366 are not limitation of action but are
conditions precedent to a cause of action --> if the shipper or consignee
fails to allege and prove the conditions under 366, he shall have no right of
action against the CC
The CC may require in the B/L that the goods be examined at the
time of delivery thereof --> the CC may likewise waive such right
Art. 366 is modified by a B/L prescribing a longer period for filing
of written claim with the CC or its agent
The unilateral action of a CC in stamping a condition in the notice
of arrival, requiring examination of bad order cargo by the ship's agent
before removal from port authorities as condition precedent to an action for
recovery cannot modify or add conditions to the B/L --> unreasonable and
unfair in that it allows CC to avoid responsibility for the loss of or damage to
their cargo when in packages or covered
The purpose of short period for claiming damages : to afford the
CC a reasonable opportunity and facilities to check the validity of the claims
while the acts are still fresh in the minds of the person who took part in the
transaction and the documents are still available.
The consignee may file a provisional claim : it is not necessary
that such claim should state a detailed list of the loss or damage; they only
have to contain descriptions of the shipments in question sufficient to have
allowed the CC to make reasonable verifications of such claim --> the
determination of the specific amount of damages claimed should be done
carefully and without haste and these can be done only in a formal claim
which will be filed after the provisional claim
This stipulation is in the nature of a limitation upon the owner's
right to recovery --> the burden of proof is on the CC to show that the
limitation was reasonable and in proper form or within the time stated (see
Southern Lines vs CA)
PAGE 39
The carrier making the delivery shall also assume all the
actions and rights of those who may have preceded him in the
transportation.
The shipper and the consignee shall have an immediate
right of action against the carrier who executed the transportation
contract, or against the other carriers who received the goods
transported without reservation.
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PAGE 41
Art. 353. The legal basis of the contract between the shipper
and the carrier shall be the bills of lading, by the contents of which all
disputes which may arise with regard to their execution and fulfillment
shall be decided, no exceptions being admissible other than forgery or
material errors in the drafting thereof.
After the contract has been complied with, the bill of lading
shall be returned to the carrier who may have issued it, and by virtue
of the exchange of this title for the article transported, the respective
obligations and actions shall be considered canceled, unless the same
act the claims which the contracting parties desire to reserve are
reduced to writing, exception being made of the provisions of Article
366.
In case the consignee, upon receiving the goods, cannot
return the bill of lading subscribed by the carrier, due to its loss or for
any other cause, he shall give said carrier a receipt for the goods
delivered, this receipt producing the same effect as the return of the
bill of lading.
Under par. 2, Art. 353, after the contract of transpo has been complied with,
the B/L shall be returned to the issuing CC in exchange for the goods
transported which are delivered to the shipper or consignee
Where the consignee upon receiving the goods cannot return the
B/L to the CC by reason of its loss or any other cause, par. 3, Art. 353
provides that he must give the CC a receipt of the goods delivered
G. Applicability of Provisions
Art. 379. The provisions contained in Article 349 et seq.
shall also be understood as relating to persons who, although they do
not personally effect the transportation of commercial goods, contract
to do so through others, either as contracts for a special and fixed
transaction or as freight and transportation agents.
In either case they shall be subrogated to the place of the
carriers with regard to the obligations and liability of the latter, as well
as with regard to their right.
IV. ADMIRALTY AND MARITIME COMMERCE
A. Concept of Admiralty; Jurisdiction over Admiralty Cases
BP 129, Sec. 19.
Regional Trial Courts shall exercise
exclusive original jurisdiction:
xxx
(3) In all actions in admiralty and maritime jurisdiction
where the demand or claim exceeds one hundred thousand pesos
(P100,000) xxx.
BP 129, Sec. 33. Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and
probate proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the personal
property, estate or amount of the demand does not exceed one
PAGE 42
1. Meaning
Lopez vs Duruelo 52 Phil 229
F:
Augusto Lopez, of Silay, Occidental Negros, wanted to embark
on the interisland steamer San Jacinto bound for Iloilo. The steamer was
anchored some half a mile from the shore or port of Silay. In order to board
the steamer, Lopes boarded the motor boat Jison at the landing which was
then engaged in conveying passengers and luggage to and from the
steamer. Whether due to negligence or incompetence of Duruelo, the
engineer of Jison aged 16, as alleged, the boat approached too near to the
stern of the steamer wherein it was struck by the still turning propeller of the
steamer. The boat sunk and Lopez was thrown into the water against the
propeller wherein he suffered a bruise in the breast, two serious fractures of
the bones of the left leg and a compound fracture of the left femur. As a
result, Lopez was hospitalized from February 28 to October 19, 1927 or
eight months. Lopez filed a complaint and sought damages amounting to
PAGE 43
PAGE 44
(2) for contracts entered into by the captain to repair, equip and
provision the vessel, provided that the amount claimed was invested for the
benefit of the vessel
(3) for the indemnities in favor of third persons which may arise
from the conduct of the captain in the care of the goods transported, as well
as for the safety of passengers transported
(4) for damages to third persons for tort or quasi-delict committed
by the captain, except collision with another vessel
(5) under Art. 826, for damages in case of collision due to the
fault, negligence, or want of skill of the captain, sailing mate, or any other
member of the complement
The agent is liable to the shippers and owners of the cargo
transported by it, for losses and damages occasioned to such cargo without
prejudice to his rights against the owner of the ship, to the extent of the
value of the vessel, its equipment and the freight
Under 588, the shipowner and the shipagent are not liable for the obligations
contracted by the captain if he exceeds his authority, unless the amounts
claimed were invested for the benefit of the vessel --> however under Art.
1759, NCC, the ship owner is liable for the death of or injuries to the
passengers which are caused by the negligence or wilful acts of his EEs
although such EEs may have acted beyond the scope of their authority or in
violation of the orders of the shipowner
PAGE 45
Art. 594. The part owners shall elect the manager who is to
represent them in the capacity of agent.
The appointment of director or agent shall be revocable at
the will of the partners.
Art. 604. If the captain or any other member of the crew should
be discharged during the voyage, they shall receive their salary until their
return to the place where the contract was made, unless there are good
reasons for the discharge, all in accordance with Art. 636 et seq. of this
Code.
PAGE 46
PAGE 47
cost of production which must be included in the budget of any wellmanaged industry
(3) Total destruction of the vessel does not affect the liability of the owner for
repairs on the vessel completed before its loss --> owners of a vessel are
liable for necessary repairs; its liability for repairs remains unaffected by the
loss of the thing
Reason for limited liability: This doctrine had its origin when maritime
trade and sea voyage was attended by innumerable hazards and perils -->
to offset against these adverse conditions and to encourage shipbuilding
and maritime commerce, it was deemed necessary to confine the liability of
the owner or agent arising from the operation of a ship to the vessel, eqpt.
and freight or insurance, if any
Limited liability is evidence of the real and hypothecary nature of
maritime law:
(1) limitation of liability to the actual value of the vessel and freight; (2) right
to retain the cargo and the embargo and detention of the vessel in cases
where the ordinary civil law would not allow more than a personal action
against the debtor or personal liable --> the maritime creditor may attach the
vessel itself to secure his claim without waiting for a settlement of his rights
by a final judgment, even to the prejudice of a third person
Manila Steamship vs Abdulhaman 100 Phil 32
Issue : How is the doctrine of limited liability applied in this case with M/V
Consuelo?
PAGE 48
Art. 594. The part owners shall elect the manager who is to
represent them in the capacity of agent.
The appointment of director or agent shall be revocable at
the will of the partners.
Art. 596. The agent may discharge the duties of captain of
the vessel, subject, in every case, to the provisions contained in Article
609.
If two or more co-owners request the position of captain, the
disagreement shall be decided by a vote of the members; and if the
vote should result in a tie, the position shall be given to the part owner
having the larger interest in the vessel.
PAGE 49
notes: The first three powers cannot be renounced as they relate to public
order and are vested in the captain as a delegation of public authority
Art. 611. In order to comply with the obligations mentioned in
the foregoing article, and when he has no funds and does not expect to
receive any from the agent, the captain shall procure the same in the
successive order stated below:
1. By requesting said funds of the consignees of the vessel or
the correspondents of the ship agent.
2. By applying to the consignees of the cargo or to the
persons interested therein.
3. By drawing on the ship agent.
4. By borrowing the amount required by means of a bottomry
loan.
5. By selling a sufficient amount of the cargo to cover the
amount absolutely necessary to repair the vessel and to equip her to
pursue the voyage.
In the two last cases he must apply to the judicial authori ty of
the port, if in the Philippines and to the Filipino consul, if in a foreign
country; and where there should be none, to the local authority,
proceeding in accordance with the prescriptions of Article 583, and with
the provisions of the law of civil procedure.
Art. 583. If while on a voyage the
captain should find it necessary to contract one or
more of the obligations mentioned in subdivisions
8 and 9 of articl 580, he shall apply to the judge or
court if he is in the Philippine territory, and
otherwise to the consul of the Republic of the
Philippines, should there be one, and in his
absence, to the judge or court or proper local
authority, presenting the certificate of the
registration sheet treated of in Article 612 and the
instruments proving the obligation contracted.
The judge or court, the consul, or the
local authority, as the case may be, in view of the
result of the proceedings institutied, shall make a
temporary memorandum of their result in the
certificate, in order that it may be recorded in the
registry when the vessel returns to the port of its
registry, or so that it can be admitted as a legal
and preferred obligation in case of sale before its
return, by reason of the sale of the vessel on
account of a declaration of unseaworthiness.
The omission of this formality shall
make the captain personally liable for the credits
prejudiced on his account.
notes:
- Captain - one who governs vessels that navigate the high seas or ships of
large dimensions and importance, although they may be engaged in coastwise
trade
- Master - one who commands smaller ships engaged exclusively in coastwise
trade
- captain and master have the same meaning for maritime commerce
- patron - bancas
- Roles of the captain :
(1) general agent of the shipowner
(2) technical director of the vessels
(3) represents the government of the country under whose flag he navigates
(b) Inherent Powers
Art. 610. The following powers are inherent in the position of
captain or master of a vessel:
1. To appoint or make contracts with the crew in the absence
of the ship agent and propose said crew, should said agent be present;
but the agent may not employ any member against the captain's express
refusal.
2. To command the crew and direct the vessel to the port to its
destination, in accordance with the instructions he may have received
from the ship agent.
3. To impose, in accordance with the contracts and the laws
and regulations of the merchants marine, on board the vessel,
correctional punishment upon those who do not comply with his orders
or who conduct themselves against discipline, holding a preliminary
PAGE 50
PAGE 51
port of Manila - with the result that the shipowner was relieved from liability for
the deviation from the stipulated route and from liability for the damage to the
cargo.
(c) Prohibited acts and transactions
Notes: Under 619, the delivery of the cargo at the port of discharge
terminates the captain's responsibility as to the cargo
Art. 615. Without the consent of the ship agent, the captain
may not have himself substituted by another person; and should he do
so, besides being liable for all the acts of the substitute and bound to
pay the indemnities mentioned in the foregoing article, the substitute as
well as the captain may be discharged by the ship agent.
Notes: The duties of a captain are essentially personal due to the confidence
given to him arising from the fact that he possesses the required technical
ability and that he is a man worthy of trust of the shipowner
Art. 617. The captain may not contract loans on respondentia
secured by the cargo, and should he do so the contract shall be void.
Neither may he borrow money on bottomry for his own
transactions, except on the portion of the vessel he owns, provided no
money has been previously borrowed on the whole vessel, and provided
there does not exist any other kind of lien or obligation chargeable
against the vessel. When he is permitted to do so, he must necessarily
state what interest he has in the vessel.
In case of violation of this article the principal, interest, and
costs shall be charged to the private account of the captain, and the ship
agent may furthermore discharge him.
Art. 621. A captain who borrows money on the hull, engine,
rigging, or tackle of the vessel, or who pledges or sells merchandise or
provisions outside of the cases and without the formalities prescribed in
this Code, shall be liable for the principal, interest, and costs, and shall
indemnify for the damages he may cause.
He who commits fraud in his accounts shall reimburse the
amount defrauded, and shall be subject to the provisions of the Penal
Code.
Art. 583. If the ship being on a voyage the captain should find
it necessary to contract one or more of the obligations mentioned in
Nos. 8 and 9 of Article 580, he shall apply to the judge or court if he is in
Philippine territory, and otherwise to the Filipino consul, should there be
one, and in his absence to the judge or court or to the proper local
authority, presenting the certificate of the registry of the vessel treated of
in Article 612, and the instruments proving the obligation contracted.
The judge or court, the consul or the local authority as the
case may be in view of the result of the proceedings instituted, shall
make a temporary memorandum in the certificate of their result, in order
that it may be recorded in the registry when the vessel returns to the port
of her registry, or so that it can be admitted as a legal and preferred
obligation in case of sale before the return, by reason of the sale of the
vessel by virtue of a declaration of unseaworthiness.
The lack of this formality shall make the captain personally
liable to the creditors who may be prejudiced through his fault.
Notes: Obligations covered by this article : (1) price which has not been paid
to the last vendor; (2) for materials and labor in the construction of the vessel;
(3) for the repair, equipment and provisioning with the victuals and fuel; (4)
loan on bottomry before departure of the vessel; (5) insurance premiums
under Art. 580 pars. 8 and 9.
3. Other Officers and Crew
notes:
Art. 626 - 631 : sailing mate or second in command
Art. 632 - 633 : second mate or third in command
Complement of a vessel or crew - all the persons on board, from the captain to
the cabin boy, necessary for the management, maneuvers, and service;
includes the sailing mates, engineers, stokers, and other employees.
PAGE 52
PAGE 53
Art. 639. Should the revocation of the voyage arise from a just
cause independent of the will of the ship agent and the charterers, and
the vessel should not have left the port, the members of the crew shall
no other right than to collect the wages earned up to the day the
revocation was made.
Art. 640. The following shall be just causes for the revocation
of the voyage:
1. A declaration of war or interdiction of commerce with the
power to whose territory the vessel was bound.
2. The blockade of the port of its destination or the breaking
out of an epidemic after the agreement.
3. The prohibition to receive in said port the goods which
make up the cargo of the vessel.
4. The detention or embargo of the same by order of the
government, or for any other reason independent of the will of the agent.
5. The inability of the vessel to navigate.
Art. 641. If, after a voyage has been begun, and any of the first
three causes mentioned in the foregoing article should occur, the sailors
shall be paid at the port which the captain may deem advisable to make
for the benefit of the vessel and cargo, according to the time they may
have served thereon; but if the vessel is to continue its voyage, the
captain and the crew may mutually demand the enforcement of the
contract.
In case of the occurrence of the fourth cause, the crew shall
continue to be paid half wages, if the agreement is by month; but if the
detention should exceed three months, the contract shall be rescinded
and the crew shall be paid what they should have earned according to
the contact, as if the voyage had been made. And if the agreement
should be for a fixed sum for the voyage, the contract must be complied
with in the terms agreed upon.
In the fifth case, the crew shall have no other right than to
collect the wages earned; but if the disability of the vessel should have
been caused by the negligence or lack of skill of the captain, engineer, or
sailing mate, they shall indemnify the crew for the damages suffered,
always without prejudice to the criminal liability which may be proper.
Art. 642. If the crew has been engaged on shares it shall not
be entitled, by reason of the revocation, delay, or greater extension of the
voyage, to anything but the proportionate part of the indemnity which
may be paid to the common funds by the persons responsible for said
occurrences.
Art. 643. If the vessel and her cargo should be totally lost by
reason of capture or shipwreck, all rights shall be extinguished, both as
regards the right of the crew to demand any wages and as regards the
right of the ship agent to recover the advances made.
If a portion of the vessel or of the cargo, or of both, should be
saved, the crew engaged on wages, including the captain, shall retain
their rights on the salvage, as far as possible, on the remainder of the
vessel as well as on the value of the freightage or the cargo saved; but
sailors who are engaged on shares shall have no right on the salvage of
the hull, but only on the portion of the freightage saved. (If they should
have worked to recover the remainder of the shipwrecked vessel, they
shall be given from the amount of the salvage an award in propor tion to
the efforts made and to the risks encountered in order to accomplish the
salvage.)
And if the contract was on shares and the death occurred after
the voyage was begun, the heirs shall be paid the entire portion due the
sailor; but if the latter died before the departure of the vessel from the
port, the heirs shall not be entitled to claim anything.
If death occurred in the defense of the vessel, the sailor shall
be considered as living, and his heirs shall be paid, at the end of the
voyage, the full amount of wages or the entire part of the profits which
may be due him as others of his class.
The sailor shall likewise be considered as present if he was
captured while defending the vessel, in order to enjoy the benefits as
the rest; but should he have been captured on account of carelessness
or other accident not related to the service, he shall only receive the
wages due up to the day of his capture.
Art. 646. The vessel with her engines, rigging, equipment, and
freightage shall be liable for the wages earned by the crew engaged per
month or for the trip, the liquidation and payment to take place between
one voyage and the other. // After a new voyage has been undertaken,
credits of such kind pertaining to the preceding voyage shall lose the
preference.
Art. 647. The officers and the crew of the vessel shall be
exempted from all obligations contracted, if they deem if proper, in the
following cases;
1. If, before the beginning of the voyage, the captain attempts
to change it, or there occurs a naval war with the power to which the
vessel was destined.
2. If a disease should break out and be officially declared
epidemic in the port of destination.
3. If the vessel should change owner or captain.
4. Supercargoes
Art. 649. Supercargoes shall discharge on board the vessel
the administrative duties which the agent or shippers may have assigned
them; they shall keep an account and record of their transactions in a
book which shall have the same conditions and requisites as required
for the accounting book of the captain, and shall respect the latter in his
duties as chief of the vessel.
The powers and liabilities of the captain shall cease, when
there is a supercargo, with regard to that part of the administration
legitimately conferred upon the latter, but shall continue in force for all
acts which are inseparable from his authority and office.
Supercargo: An agent of the owner of the goods shipped as cargo on a
vessel, who has charge of the cargo on board, sells the same to the best
advantage in the foreign markets, buys cargo to be brought back on the return
voyage of the ship, and comes home with it
Art. 650. All the provisions contained in the second section of
Title III, Book II, with regard to qualifications, manner of making
contracts, and liabilities of factors shall be applicable to supercargoes.
Now governed by the provisions on agency
Art. 651. Supercargoes cannot, without special authorization
or agreement, make any transaction for their own account during the
voyage, with the exception of the ventures which, in accordance with the
custom of the port of destination, they are permitted to do.
Neither shall they be permitted to invest in the return trip more
than the profits from the ventures, unless there is a special authorization
therefor from the principals.
Art. 644. A sailor who falls sick shall not lose his right to
wages during the voyage, unless his sickness is the result of his own
fault. At any rate, the costs of medical attendance and treatment shall be
defrayed from the common funds, in the form of a loan.
If the sickness should be caused by an injury received in the
service or defense of the vessel, the sailor shall be attended and treated
at the expense of the common funds, deducting, before anything else,
from the proceeds of the freightage, the cost of the attendance and
treatment.
Art. 645. If a sailor should die during the voyage, his heirs
shall be given the wages earned and not received, according to his
contract and the cause of his death, namely --If he died a natural death and was engaged on wages, that
which may have been earned up to the date of his death shall be paid.
If the contract was for a fixed sum for the whole voyage, half
the amount earned shall be paid if the sailor died on the voyage out, and
the whole amount if he died on the return voyage.
PAGE 54
(b) Effects
Art. 810. The owner of the goods which gave rise to the
expense or suffered the damage shall bear the simple or particular
averages.
(2) Gross or General
(a) Defined
Art. 811. As a general rule, general or gross averages shall
include all the damages and expenses which are deliberately caused in
order to save the vessel, its cargo, or both at the same time, from a
real and known risk, and particularly the following:
1. The goods or cash invested in the redemption of the
vessel or of the cargo captured by enemies, privateers, or pirates, and
the provisions, wages, and expenses of the vessel detained during the
time the settlement or redemption is being made.
2. The goods jettisoned to lighten the vessel, whether they
belong to the cargo, to the vessel, or to the crew, and the damage
suffered through said act by the goods which are kept on board.
3. The cables and masts which are cut or rendered useless,
the anchors and the chains which are abandoned, in order to save the
cargo, the vessel, or both.
4. The expenses of removing or transferring a portion of the
cargo in order to lighten the vessel and place it in condition to enter a
port or roadstead, and the damage resulting therefrom to the goods
removed or transferred.
5. The damage suffered by the goods of the cargo by the
opening made in the vessel in order to drain it and prevent its sinking.
6. The expenses caused in order to float a vessel intentionally stranded for the purpose of saving it.
7. The damage caused to the vessel which had to be
opened, scuttled or broken in order to save the cargo.
8. The expenses for the treatment and subsistence of the
members of the crew who may have been wounded or crippled in
defending or saving the vessel.
9. The wages of any member of the crew held as hostage by
enemies, privateers, or pirates, and the necessary expenses which he
may incur in his imprisonment, until he is returned to the vessel or to
his domicile, should he prefer it.
10. The wages and victuals of the crew of a vessel chartered
by the month, during the time that it is embargoed or detained by force
majeure or by order of the Government, or in order to repair the
damage caused for the common benefit.
11. The depreciation resulting in the value of the goods sold
at arrivals under stress in order to repair the vessel by reason of gross
average.
12. The expenses of the liquidation of the average.
Art. 817. If in the lightening a vessel on account of a storm,
in order to facilitate its entry into a port or roadstead, part of her cargo
should be transferred to lighters or barges and be lost, the owner of
said part shall be entitled to indemnity, as if the loss had originated
from a gross average, the amount thereof being distributed between
the vessel and cargo from which it came.
If, on the contrary, the merchandise transferred should be
saved and the vessel should be lost, no liability may be demanded of
the salvage.
Art. 818. If, as a necessary measure to extinguish a fire in
port, roadstead, creek, or bay, it should be decided to sink any vessel,
this loss shall be considered gross average, to which the vessels
saved shall contribute.
Distinguishing feature: Expense or damage suffered deliberately in order to
save the vessel, its cargo or both from a real and known risk --> it is the
deliverance from an immediate peril, by a common sacrifice, that constitutes
the essence of general average
Requisites for general average:
1. there must be a common danger --> the ship and cargo are
subject to the same danger and that the danger arises from accidents of the
sea, dispositions of the authorities or faults of men, provided that the
circumstances producing the peril should be ascertained and imminent
PAGE 55
contribution, the Manila CFI decided for the plaintiff. Defendant appealed
contending that the floating of a vessel, unintentionally stranded inside a
port and at the mouth of a river during a fine weather, does not constitute
general average expenses.
Held: In classifying averages into simple or particular and general or gross
and defining each class, the Code of Commerce at the same time
enumerate certain specific cases as coming specially under one or the other
class. While the expenses incurred in putting the vessel afloat may well
come under No. 2 of Art. 809 - referring to expenses suffered by the vessel
due to an accident of the sea or force majeure- said expenses do not fit into
any of the specific cases of general average enumerated in ART. 811. No. 6
of Art. 811 mentions expenses caused to afloat a vessel, but it specifically
refers to a vessel intentionally stranded for the purpose of saving it, and
would have no application where the stranding was unintentional.
The following are the requisites for a general average: 1) there
must be common danger, 2) for the common safety part of the vessel or
cargo or both is sacrificed deliberately, 3) from the expenses or damages
caused follows the successful saving of the vessel and cargo, and 4) the
expenses or damages should have been incurred or inflicted after taking the
proper legal steps and authority.
It is the deliverance from an immediate peril, by reason of a
common sacrifice, that constitutes the essence of a general average.
Where there is no proof that the stranded vessel had to be put afloat to save
it from imminent danger, and what does appear is that the vessel had to be
salvaged in order to enable it to proceed to its port of destination, the
expenses incurred in floating the vessel do not constitute general average.
It is the safety of the property, and not of the voyage which constitutes the
true foundation of general average.
The expenses incurred for the common safety of the vessel and
cargo in this case did not arise from the imminent peril of both. The cargo
could have been unloaded by the owners had they been required to do so.
The refloating was a success, but as the sacrifice was for the vessel's
benefit -- to enable it to proceed to its destination -- and not for the purpose
of saving the cargo, the cargo owners are not in law bound to contribute to
expenses. The final requisite has not been proved for it does not appear
that the expenses in question were incurred after following the procedure
laid down in Art. 913.
Decision reversed.
PAGE 56
(d) Jettison
Art. 815. The captain shall direct the jettison, and shall order
the goods cast overboard in the following order:
1. Those which are on deck, beginning with those which
embarrass the maneuver or damage the vessel, preferring, if possible,
the heaviest ones with the least utility and value.
2. Those which are below the upper deck, always beginning
with those of the greatest weight and smallest value, to the amount
and number absolutely indispensable.
Art. 816. In order that the goods jettisoned may be included
in the gross average and the owners thereof be entitled to indemnity, it
shall be necessary in so far as the cargo is concerned that their
existence on board be proven by means of the bill of lading; and with
regard to those belonging to the vessel, by means of the inventory
PAGE 57
PAGE 58
Art. 819. If during the voyage the captain should believe that
the vessel cannot continue the trip to the port of destination on
account of the lack of provisions, well-founded fear of seizure,
privateers, or pirates, or by reason of any accident of the sea disabling
it to navigate, he shall assemble the officers and shall summon the
persons interested in the cargo who may be present, and who may
attend the meeting without the right to vote; and if, after examining the
circumstances of the case, the reason should be considered wellfounded, the arrival at the nearest and most convenient port shall be
agreed upon, drafting and entering the proper minutes, which shall be
signed by all, in the log book.
The captain shall have the deciding vote, and the persons
interested in the cargo may make the objections and protests they may
deem proper, which shall be entered in the minutes in order that they
may make use thereof in the manner they may consider advisable.
Formalities : 1. assembly of the officers including all interested parties
2. drafting and entering in the log book the proper minutes, which shall be
signed by all
3. entry in the log book of the objections and protests of the persons
interested in the cargo
PAGE 59
The captain has the duty to continue the voyage without delay after the
cause of the arrival under stress has ceased--> otherwise, he shall be liable
for damages caused by the delay
3. Collisions
Collision: impact of two vessels both of which are moving
Allision: striking of a moving vessel against one that is stationary
Cases of collision :
1. due to the fault, negligence or lack of skill of the captain, sailing mate or
the complement of the vessel --> under 826, the shipowner shall be liable
for the losses and damages
2. due to the fault of both vessels --> under 827, each vessel shall suffer its
own losses, but as regards the owners of the cargoes, both vessels shall be
jointly and severally liable
3. where it cannot be determined which of the 2 vessels is at fault --> under
828, each vessel shall suffer its own losses, and both shall also be solidarily
responsible for the losses and damages caused to their cargoes
4. collision due to fortuitous event or force majeure --> under 830, each
vessel shall bear its own damages
5. where two vessels collide with each other without their fault but by reason
of the fault of a third vessel --> under 831, the owner of the third vessel
causing the collision shall be liable for the losses and damages 6. a vessel
which is properly anchored and moored may collide with those nearby by
reason of a storm or other cause of force majeure --> under 832, the vessel
run into shall suffer its own damages and expenses
Nautical Rules to determine negligence :
1. When 2 vessels are about to enter a port, the farther one must
allow the nearer to enter first; if they collide, the fault is presumed to be
imputable to the one who arrived later, unless it can be proved that there
was no fault on its part.
2. When 2 vessels meet, the smaller should give the right of way
to the larger one.
(2) Culpable
3. A vessel leaving port should leave the way clear for another
which may be entering the same port.
4. The vessel which leaves later is presumed to have collided
against one who has left earlier.
5. There is also a presumption against the vessel which sets sail
at night.
6. The presumption also works against the vessel with spread
sails which collides with another which is at anchor, and cannot move, even
when the crew of the latter has received word to lift anchor, when there was
not sufficient time to do so or there was fear of a greater damage or other
legitimate reason.
PAGE 60
Art. 834. If the vessels colliding with each other should have
pilots on board discharging their duties at the time of the collision,
their presence shall not exempt the captains from the liabilities they
incur, but the latter shall have the right to be indemnified by the pilots,
without prejudice to the criminal liability which the latter may incur.
(3) conditions; protests
Art. 835. The action for the recovery of losses and damages
arising from collisions cannot be admitted if a protest or declaration is
not presented within twenty-four hours before the competent authority
of the point where the collision took place, or that of the first port of
arrival of the vessel, if in Philippine territory and to the consul of the
Philippines, if it occurred in a foreign country.
Art. 836. With respect to damages caused to persons or to
the cargo, the absence of a protest may not prejudice the persons
interested who were not on board or were not in a condition to make
known their wishes.
Art. 835 establishes a condition precedent before any action for the
recovery of damages arising from collisions may be admitted -->
presentation of a protest or declaration within 24 hours before the proper
authorities [competent authority at the point where the collision took place or
of the first port of arrival of the vessel or to the consul of the Philippines if it
occurred in a foreign country]
The requirement of protest is not necessary with respect to small boats
engaged in river and bay traffic and boats manned by a group of fishermen
Reason for requiring protest: Neccesity of preventing fictitious collisions
and improper indemnities
Summary of cases where protest is required:
1. under 612, when the vessel makes an arrival under stress
2. under 612, 624 and 843, where the vessel is shipwrecked
3. under 624, where the vessel has gone through a hurricane or when the
captain believes that the cargo has suffered damages or averages
4. under 835, in case of maritime collisions
Art. 839. If the collision should take place between
Philippine vessels in foreign waters, of if having taken place in the
open seas, and the vessels should make a foreign port, the Filipino
consul in said port shall hold a summary investigation of the accident,
forwarding the proceedings to the Secretary of the Department of
Foreign Affairs for continuation and conclusion.
(c) Liabilities
4. Shipwrecks
(1) Shipowner or agent
Art. 837. The civil liability incurred by the shipowners in the
cases prescribed in this section, shall be understood as limited to the
value of the vessel with all its appurtenances and freightage earned
during the voyage.
Art. 838.
When the value of the vessel and her
appurtenances should not be sufficient to cover all the liabilities, the
indemnity due by reason of the death or injury of persons shall have
preference.
Limited liability : limited to the value of the vessel and the freight earned
during the voyage [provided for in Arts. 587, 590 and 837]
Damages may be recovered to the extent of what may be
salvaged or of the freightage received or of the value of the insurance
recoverable
PAGE 61
1. a marine peril
2. service voluntarily rendered when not required as an existing
duty or from special contract
3. success, in whole or in part, or that the services rendered
contributed to such success
Distinction between salvage and towage is of importance to the
crew of the salvaging ship : if the contract for towage is in fact towage, then
the crew does not have any interest or rights with the renumeration pursuant
to the contract; BUT if the owners of the respective vessels are of a salvage
nature, the crew of the salvaging ship is entitled to salvage, and can look to
the salvaged vessel for its share
Captain towing vessel cannot invoke equity in quasi-contract of
towage --> there is an express provision of law (Art. 2142, NCC) applicable
to the relationship of quasi-contract of towage, where the crew is not entitled
to compensation separate from that of the vessel
Section 2. If the captain of the vessel, or the person acting in
his stead, is present, no one shall take from the sea, or from the
shores, or coast merchandise or effects proceeding from a shipwreck
or proceed to the salvage of the vessel, without the consent of such
captain or person acting in his stead.
Section 3. He who shall save or pick up a vessel or
merchandise at sea, in the absence of the captain of the vessel, owner
or a representative of either of them, they being unknown, shall convey
and deliver such vessel or merchandise, as soon as possible, to the
Collector of Customs, if the port has a collector, and otherwise to the
provincial treasurer or municipal mayor.
PAGE 62
PAGE 63
the LC, the weather was fair, clear and good. The waves were small and too
slight, so much so, that there were only ripples on the sea, which was quite
smooth. During the towing of the vessel on the same night, there was
moonlight. Although said vessel was drifting towards the open sea, there was
no danger of its foundering or being stranded, as it was far from any island or
rocks. In case of danger of stranding, its anchor could be released, to prevent
such occurrence. There was no danger that defendant's vessel would sink, in
view of the smoothness of the sea and the fairness of the weather. That there
was absence of danger is shown by the fact that said vessel or its crew did
not even find it necessary to lower its launch and two motor boats, in order to
evacuate its passengers no were the cargo in danger of perishing. All that the
vessel's crew members could no do was to move the vessel on its own power.
That did not make the vessel a quasi-derelict, considering that even before the
plaintiff-appellant extended the help to the distressed ship, a sister vessel was
known to be on its way to succor it.
(2) But plaintiff's service can be considered as a quasi- contract of
towage. In consenting to plaintiff's offer to tow the vessel, the defendant
through its captain, thereby impliedly entered into a juridical relation of towage
with the owner of the MV Henry. If the contract thus created is one for
towage, then only the owner of the towing vessel , to the exclusion of the crew
of the said vessel, may be entitled to renumeration. And as the vessel-owner,
William Lines, had expressly waived its claim for compensation for the towage
service rendered to defendant, it is clear that plaintiff, whose right if at all
depends upon and not separate from the interest, is not entitled to payment for
such towage services. Neither may the plaintiff captain invoke equity in
support of his claim for compensation against defendant. There being an
express provision of law (Art. 2142, NCC) applicable to the relationship
created in this case, that is, that of a quasi-contract of towage where the crew
is not entitled to compensation separate from that of the vessel, there is no
occasion to resort to equitable considerations.
PAGE 64
responsibility for the cargo loss falls on the one who agreed to perform the
duty involved in accordance with the terms of the voyage charter
This case involves a voyage charter.In the present case, the
charterer was responsible for loading, stowage and discharging at the ports
visited, while the owner was responsible for the care of the cargo. Par. 2 of
the Uniform General Charter provided that the owner shall be responsible for
loss or damage or delay in the delivery of goods caused by improper or
negligent stowage of the goods or by personal want of due diligence in
making the vessel seaworthy and properly manned. However, the owner
shall not be liable for any other cause, even from the neglect of the captain
or the crew or any other person employed by the owner on board, or for any
unseaworthiness of the vessel on loading or commencement of the voyage.
In cases at bar, the TC found that there were shortlanded bags,
which could only mean that they were damaged or lost on board the vessel
before unloading of the shipment. The entire cargo was covered by a clean
B/L. As the bags were in good order when received by the vessel, the
presumption is that they were damaged or lost during the voyage as a result
of their negligent improper storage. The shipowner should be held liable.
The filing of the claim must be within one year, in accordance
with the COGSA. Otherwise, the carrier and the ship shall be discharged
from liability. The one year period should commence from Oct. 20, 1979, the
date when the last item was delivered to the consignee. Union filed the
complaint against Hongkong within the one year period but tardily against
Macondray. The action has prescribed with respect Macondray but not
against the principal, Hongkong Island.
As regards the goods damaged or lost during unloading, the
charterer is liable thereof, having assumed this activity under the charter
party free of expense to the vessel. The difficulty is that Transcontinental
has not been impleaded and so is beyond the court's jurisdiction. The
liability imposed on it cannot be borne by Maritime which is a mere agent
and is not answerable for the injury caused by its principal (unless the
principal is undisclosed).
In this case, the charterer did not represent itself as a carrier and
indeed assumed responsibility only for the unloading of the cargo. Maritime
acted in representation of the charterer and not of the vessel. 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.
Transcontinental was disclosed as the charterer's principal and Maritime
only acted within the scope of its authority.
The TC's findings were upheld except for some modifications.
The liability of Macondray can no longer be enforced because of
prescription. Maritima cannot be held liable for the principal's acts.
c. Forms and Effects
Art. 652. A charter party must be drawn in duplicate and
signed by the contracting parties, and when either does not know how
or is not able to do so, by two witnesses at his request.
The charter party shall include, besides the condition
stipulated, the following circumstances:
1. The kind, name, and tonnage of the vessel.
2. Her flag and port or registry.
3. The name, surname, and domicile of the captain.
4. The name, surname, and domicile of the agent, if the
latter should make the charter party.
5. The name, surname, and domicile of the charterer, and if
he states that he is acting by commission, that of the person for whose
account he makes the contract.
6. The port of loading and unloading.
7. The capacity, number of tons or weight, or measure
which they respectively bind themselves to load and transport, or
whether it is the total cargo.
8. The freightage to be paid, stating whether it is to be a
fixed amount for the voyage or so much per month, or for the space to
be occupied, or for the weight or measure of the goods of which the
cargo consists, or in any other manner whatsoever agreed upon.
9. The amount of primage to be paid the captain.
10. The days agreed upon for loading and unloading.
11. The lay days and extra lay days to be allowed and
the rate of demurrage.
Art. 653. If the freight should be received without the charter
party having been signed, the contract shall be understood as
executed in accordance with what appears in the bill of lading, which
shall be the only instrument with regard to the freight to determine the
rights and obligations of the ship agent, of the captain, and of the
charterer.
PAGE 65
Articles 659 to 664 : Some of the goods being transported may : (1) be sold
by the captain to pay for necessary repairs; (2) be jettisoned for the
common safety; (3) be lost by reason of shipwreck or stranding; (4) be
seized by pirates or enemies; (5) suffer deteriorations or dimunitions; or (6)
increase by natural cause in weight or size
** Goods that shall not pay freightage:
(1) Art. 660 - goods jettisoned for the common safety but the amount of
freightage that should have been paid shall be considered as a general
average and shall be computed in proportion to the distance covered when
they were jettisoned
(2) Art. 661 - merchandise lost by reason of shipwreck or stranding; if freight
had been paid in advance, it shall be returned
(3) Art. 661 - goods seized by pirates or enemies; freight paid in advance
shall be returned
** Goods required to pay freightage:
(1) Art. 659 - goods sold by the captain to pay for the necessary repairs to
the hull, machinery or equipment or for unavoidable and urgent needs -->
but the freight may not be required to be paid in full
(2) Art. 663 - goods which suffer deterioration or dimunition on account of (a)
inherent defects or bad quality of packing, or of (b) fortuitous event
(3) Art. 644 - goods that increase in size or weight by natural cause
Lay days.-- Days allowed to charter parties for loading and unloading the
cargo
Art. 654. The charter parties executed with the intervention
of a broker, who certifies to the authenticity of the signatures of the
contracting parties made in his presence, shall be full evidence in
court; and, if they should be conflicting, that which agrees with the
one which the broker must keep in his registry, if kept in accordance
with law, shall govern.
The contracts shall also be admitted as evidence, even
though a broker has not taken part therein, if the contracting parties
acknowledge the signatures of the same as their own.
Should no broker have taken part in the charter party and
the signatures be not acknowledged, doubts shall be decided by what
is provided for in the bill of lading, and, in the absence thereof, by the
proofs submitted by the parties.
Art. 655. Charter parties executed by the captain in the
absence of the ship agent shall be valid and effective, even though in
executing them he should have acted in violation of the orders and
instructions of the agent or shipowner; but the latter shall have a right
of action against the captain to recover damages.
Art. 656. If in the charter party the time in which the loading
and unloading are to take place is not stated, the usages of the port
where these acts take place shall be observed. After the stipulated or
customary period has passed, and should there not be in the freight
contract an express provision fixing the indemnification for the delay,
the captain shall be entitled to demand demurrage for the lay days and
extra lay days which may have elapsed in loading and unloading.
Art. 657. If during the voyage the vessel should be rendered
unseaworthy the captain shall be obliged to charter at his expense
another one in good condition, to carry the cargo to its destination, for
which purpose he shall be obliged to look for a vessel not only at the
port of arrival but also in the neighboring ports within a distance of
150 kilometers.
If the captain, through indolence or malice, should not
furnish a vessel to take the cargo to its destination, the ship pers, after
requesting the captain to charter a vessel within an unextendible
period, may charter one and apply to the judicial authority for the
summary approval of the charter party which they may have made.
The same authority shall judicially compel the captain to
carry out for his account and under his responsibility the charter made
by the shippers.
If the captain, notwithstanding his diligence, should not find
a vessel to charter, he shall deposit the cargo at the disposal of the
shippers, to whom he shall communicate the facts on the first
opportunity, the freight being adjusted in such cases by the distance
covered by the vessel, with no right to any indemnification whatsoever.
PAGE 66
1. Art. 669 - to observe in the charter parties, the capacity of the vessel, and
to indemnify the shippers whose contracts are not fulfilled for the losses
they may have suffered by the failure of the shipowner to observe the
capacity of the vessel
2. Art. 670 - to undertake a voyage at the time agreed upon or within 15
days from loading if no time is stipulated, even if the shipowner should not
find cargo sufficient to make up at least 3/5 of the amount which the vessel
may hold, where he fails to exercise his right to change vessel
3. Art. 670 - where the shipowner should not find cargo sufficient to make up
at least 3/5 of the amount which the vessel may hold, to accept other cargo
procured by the owner of the freight already loaded under the same price
and conditions
4. Art. 671- not to change the vessel after 3/5 of the vessel has been
loaded, without the consent of the charterers or shippers
5. Art. 672 - if the vessel has been chartered in whole, not to accept cargo
from any other person without the consent of the charterer
6. Art. 673 - to answer for losses arising from delay in putting to sea
7. Art. 676 - to have the vessel in a condition to navigate at the time of
receiving the cargo
8. Art. 677 - in case of declaration of war or blockade during the voyage,
where the captain has not received any instructions from the charterer, for
the captain to proceed to the nearest safe and neutral port, requesting and
awaiting orders from the shippers
Rights of Shipowner:
1. Art. 670 - where the cargo is not sufficient to make up at least 3/5 of the
amount which the vessel may hold, he may substitute anohter vessel
inspected and declared suitable for the voyage --> expenses of transfer and
increase in price of the charter shall be paid by him
2. Art. 674 - to collect the freight in accordance with the price stipulated for
cargo in excess of that agreed upon is such excess can be properly stowed
3. Art. 674 - to refuse and unload at the expense of the owner excess cargo
that cannot be properly stowed
4. Art. 674 - to unload merchandise clandestinely placed on board, or to
transport them if he can do so, demanding the highest freightage
5. Art. 675- to find freight to take place of freight not received, if the vessel
has been chartered to receive cargo in another port, after he receives no
cargo from the consignee and after he receives no answer from the
charterer
6. Art. 675 - to receive freight in full, discounting that which may have been
earned on the merchandise carried as substitute
7. Art. 677 - to have the charter party subsist notwithstanding the declaration
of war or a blockade during the voyage, and to receive in such cases, the
freightage in full where the shipper orders that the cargo should be
discharged at the port of arrival
e. Obligations of charterers
Art. 679. The charterer of an entire vessel may subcharter
the whole or part thereof for the amounts he may consider most
convenient, the captain not being allowed to refuse to receive on board
the cargo delivered by the second charterers, provided the conditions
of the first charter are not changed, and that the price agreed upon is
paid in full, even though the full cargo is not loaded, with the limitation
established in the next article.
Art. 680. A charterer who does not complete the full cargo
he bound himself to ship shall pay the freightage of the amount he
fails to load, if the captain does not take other freight to complete the
load of the vessel, in which case he shall pay the first charterer the
difference should there be any.
Art. 681. If the charterer should ship goods different from
those indicated at the time of executing the charter party, without the
knowledge of the person from whom the vessel was chartered or of the
captain, and should thereby give rise to losses, by reason of
confiscation, embargo, detention, or other causes, to the person from
whom the vessel was chartered or to the shippers, the person giving
rise thereto shall be liable with the value of his shipment and
furthermore with his property, for the full indemnity to all those injured
through his fault.
Art. 682. If the merchandise should have been shipped for
the purpose of illicit commerce, and was taken on board with the
knowledge of the person from whom the vessel was chartered or of the
captain, the latter, jointly with the owner of the merchandise, shall be
PAGE 67
PAGE 68
indemnity is paid in
when
3. consensual contract
--perfected from the
* governed by Insurance Act
the thing loaned
real
marine peril
moment of delivery of
c. Character of Loan
ed:
loan on bottomry
loan is required to be
no limit as to rate of
last
lender
has
previous ones
view
of
1. the loan shall have, with regard to other credits, the preference which,
according to its nature, it should have (Art. 580 - 8th in the order of
preference)
2. effective against third persons from the time of execution/registration
PAGE 69
g. By whom
Art. 728. The loan which the captain takes at the point of
residence of the owners of the vessel shall only affect that part thereof
which belongs to the captain, if the other owners or their agents
should not have given their express authorization therefor or should
not have taken part in the transaction.
If one or more of the owners should be requested to furnish
the amount necessary to repair or provision the vessel, and they
should not do so within twenty-four hours, the interest which the
parties in default may have in the vessel shall be liable for the loan in
the proper proportion.
Outside of the residence of the owners, the captain may
contract loans in accordance with the provisions of Articles 583 and
611.
Art. 617. The captain may not contract loans on respondentia secured by the cargo, and should he do so the contract shall be
void.
Neither may he borrow money on bottomry for his own
transactions, except on the portion of the vessel he owns, provided no
money has been previously borrowed on the whole vessel, and
provided there does not exist any other kind of lien or obligation
chargeable against the vessel. When he is permitted to do so, he must
necessarily state what interest he has in the vessel.
In case of violation of this article the principal, interest, and
costs shall be charged to the private account of the captain, and the
ship agent may furthermore discharge him.
PAGE 70
2. Probative Value
1. Contents
Art. 706. The captain and the shipper shall have the
obligation of drawing up the bill of lading, in which shall be stated:
1. The name, registry, and tonnage of the vessel.
2. The name of the captain and his domicile.
3. The port of loading and that of unloading.
4. The name of the shipper.
5. The name of the consignee, if the bill of lading is issued
in the name of a specified person.
6. The quantity, quality, number of packages, and marks of
the merchandise.
7. The freightage and the primage stipulated.
The bill of lading may be issued to bearer, to order, or in the
name of a specified person, and must be signed within twenty- four
hours after the cargo has been received on board, the shipper being
entitled to demand the unloading at the expense of the captain should
the latter not sign it, and, in any case, the losses and damages
suffered thereby.
Art.707. Four true copies of the original bill of lading shall
be made, and all of them shall be signed by the captain and by the
shipper. Of these copies the shipper shall keep one and send another
to the consignee; the captain shall take two, one for himself and the
other for the ship agent.
There may also be drawn as many copies of the bill of lading
as may be considered necessary by the parties; but, when they are
issued to order or to bearer, there shall be stated in all the copies, be
they the first four or the subsequent ones, the destination of each one,
stating whether it is for the ship agent, for the captain, for the shipper,
or for the consignee. If the copy sent to the latter should have a
duplicate, this circumstance and the fact that it is not valid except in
default of the first one must be stated therein.
Art. 713. If before the delivery of the cargo a new bill of
lading should be demanded of the captain, on the allegation that the
failure to present the previous ones is on account of their loss or for
any other just cause, he shall be obliged to issue it, provided that
security for the value of the cargo is given to his satisfaction; but
without changing the consignment and stating therein the
circumstances prescribed in the last paragraph of Article 707, when
dealing with the bills of lading referred to therein, under penalty,
should he not do so, of being liable for said cargo if improperly
delivered through his fault.
Art. 714. If before the vessel puts to sea the captain should
die or should cease to hold his position through any cause, the
shipper shall have the right to demand of the new captain the
ratification of the first bills of lading, and the latter must do so,
provided that all the copies previously issued be presented or returned
to him, and it should appear from an examination of the cargo that
they are correct.
The expenses arising from the examination of the cargo
shall be for the account of the ship agent, without prejudice to his right
of action against the first captain, if he ceased to be such through his
own fault. Should said examination not be made, it shall be
PAGE 71
PAGE 72
PAGE 73
RISKS
Sec. 2. Subject to the provisions of Section 6, under every
contract of carriage of goods by sea, the carrier in relation to the
loading, handling, stowage, carriage, custody, care, and discharge of
such goods shall be subject to the responsibilities and liabilities and
entitled to the rights and immunities hereinafter set forth.
PAGE 74
Q: Is the prescriptive period under the COGSA interrupted from the time of
the making of extra-judicial demand or filing of judicial action as provided in
Art. 1155, NCC?
A: No. 1 year period is a special prescriptive period, uniform worldwide
Rationale behind the 3-day notice and relatively short prescriptive period:
- to provide carrier an opportunity to look for the lost goods
- to discover who was at fault
- in case of transshipment, to determine, when and where damage
occurred
Shipper, consignee or legal holder of bill may invoke prescriptive period
although the proviso in Sec. 3 (6) gives the impression that it is the shipper
alone who can invoke the same.
But prescriptive period does not apply to the action by an insurer as subrogee
of the consignee.
Stipulation in bill limiting carrier's liability contrary to sec. 3(8) is void; e.g.
provision in the bill excepting th owner form liability for loss or damage of
cargo unless written notice is thereof was given to the carrier within 30 days;
such a provision is contrary to a provision of the COGSA since Sec. 3
provides that even if a notice of loss or damage is not given as required, that
fact shall not prejudice the right of the shipper to bring suit within 1 year after
delivery of the goods.
Notice requirements:
COGSA: Sec. 3(6)
If loss or damage is apparent - protest as soon as receipt of goods
If not apparent -> within 3 days of delivery
(5) Neither the carrier nor the ship shall in any event be or
become liable for any loss or damage to or in connection with the
transportation of goods in an amount exceeding $500 per package of
lawful money of the United States, or in case of goods not shipped in
packages, per customary freight unit, or the equivalent of that sum in
other currency, unless the nature and value of such goods have been
declared by the shipper before shipment and inserted in the bill of
lading. This declaration, if embodied in the bill of lading, shall be prima
facie evidence, but shall not be conclusive on the carrier.
By agreement between the carrier, master or agent of the
carrier, and the shipper another maximum amount than that mentioned
in this paragraph may be fixed: Provided, that such maximum shall not
be less than the figure above named. In no event shall the carrier be
liable for more than the amount of damage actually sustained.
Neither the carrier nor the ship shall be responsible in any
event for loss or damage to or in connection with the transportation of
the goods if the nature or value thereof has been knowingly and
fraudulently mis-stated by the shipper in the bill of lading.
(6) Goods of an inflammable, explosive, or dangerous nature
to the shipment whereof, the carrier, master or agent of the carrier, has
not consented with knowledge of their nature and character, may at any
time before discharge be landed at any place or destroyed or rendered
innocuous by the carrier without compensation, and the shipper of such
goods shall be liable for all damages and expenses directly or indirectly
arising out of or resulting from such shipment. If any such goods
shipped with such knowledge and consent shall become a danger to the
ship or cargo, they may in like manner be landed at any place, or destroyed or rendered innocuous by the carrier without liability on the part
of the carrier except to general average if any.
Notes: Amount recoverable in case of loss: $500/package, even if not
stipulated
PAGE 75
Parties may agree to amount of liability less than $500 under Sec. 4(5). By
providing that $500 is the maximum liability, the law does not disallow an
agreement for liability at a lesser amount. Moreover, Art. 1749 of the NCC
expressly allows th limitation of the carrier's liability. (Eastern v. Great American)
SURRENDER OF RIGHTS AND IMMUNITIES AND INCREASE OF
RESPONSIBILITIES AND LIABILITIES
Sec. 11. When under the custom of any trade the weight of
any bulk cargo inserted in the bill of lading is a weight ascertained or
accepted by a third party other than the carrier or the shipper and the
fact that the weight as ascertained or accepted is stated in the bill of
lading, then notwithstanding anything in this Act, the bill of lading shall
not be deemed to be prima facie evidence against the carrier of the
receipt of goods of the weight so inserted in the bill of lading, and the
accuracy thereof at the time of shipment shall not be deemed to have
been guaranteed by the shipper.
PAGE 76
HELD: No. Art. 28 (1) of Warsaw Con. is constitutional. Although the case can
be decided on other grounds without resolving the constitutional question, the
Warsaw Convention is a treaty commitment voluntarily assumed by the
Philippine Government and as such, has the force and effect of law. The
presumption is that this joint legislative-executive act was first carefully
studied and determined to be constitutional before it was adopted. Petitioner's
allegation have not overcome this presumption. Moreover, the treaty since
1950 has not been rejected by the Philippine Government.
SECOND ISSUE: W/NOT THE WC SHOULD BE RENDERED IRRELEVANT
BY THE DOCTRINE OF REBUS SIC STANTIBUS?
HELD: No. The circumstance that the airline industry was still in infancy when
the Convention was made, alone, is not sufficient justification for the rejection
of the treaty at this time. The changes recited by petitioner were not entirely
unforeseen although they were expected in a general sense only. (Check
Art.41).
THIRD ISSUE: W/NOT THE REQUISITS OF THE WC IS MERELY A MATTER
OF VENUE OR JURISDICTION?
HELD: Jurisdiction
(1) The wording of Art. 32, which indicates the places where the action for
damages "must" be brought, underscores the mandatory nature of Art. 28 (1).
(2) This characterization is consistent with one of the objectives of the
convention, which is to regulate in a uniform manner the conditions of
international transportation by air.
FOURT ISSUE: W/NOT PHILIPPIN COURTS HAVE JURISDICTION OVER
THIS CASE?
HELD: No. Art. 28 (1) provides that an action for damage must be brought at
the option of the plaintiff: (a) before the court of the domicile of the carrier;
(b) the court of its principal place of business;
(c) the court where it has a place of business thru w/c the contract had been
made;
(d) the court of the place of destination.
In this case, the ff. were not followed, and hence the Philippines,
not being one of the courts mentioned in Art.28 (1), does not have jurisdiction
over the case.
(1) court of domicile is Minnesota, U.S.A;
(2) principal place of business of carrier is also U.S.A;
(3) place of business where contract was made was in San Francisco;
(4) place of destination is also San Francisco, Santos having purchased a
round trip-ticket from SFO-TYO-MNL, then back to TYO- SFO. The "ultimate
destination" being San Francisco.
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Note however, that the limitations of liability in the Convention favors the
carrier.
F:
Nicolas Cuenca, an official delegate of Philippines to a conference
in Tokyo, was transferred from first class to tourist class despite his first class
ticket. The Northwest agent also treated him rudely in front of other
passengers. Northwest argues that according to the Warsaw Convention, Arts.
17, 18, 19, an air carrier is liable only in the event of (a) death of a
passenger or injury suffered by him; (b) of destruction or loss of, or damage to
any checked baggage/goods; & (c) delay in the transportation by air of
passengers, baggage or goods.
C. When Applicable
HELD: Yes. The said articles merely declare the carrier liable for damages in
the enumerated cases, if the conditions therein specified are present. Neither
the provisions of said articles nor others regulate or exclude liability for other
breaches of contract by the carrier. Under petitioner's theory, an air carrier
would be exempt from any liability for damages in the event of its absolute
refusal, in bad faith, to comply with a contract of carriage, which is absurd.
ALITALIA V. IAC [192 SCRA 10 (1990)]
F:
Dr. Felipa Pablo, an Associate UP Professor and research grantee
of the Philippine Atomic Energy Agency was scheduled to speak in a UN
meeting in Ispra, Italy. She arrived in Milan a day before the meeting, but her
luggage (where her speech was) was delayed, and arrived a day after the
meeting. She returned to Manila before the meeting.
ISSUE: W/NOT THE WC SHOULD APPLY TO LIMIT ALITATLIA'S LIABILITY?
HELD: No. The WC does not operate as an absolute limit of the extent of an
airline's liability. It does not regulate or exclude liability for other breaches of
contract by the carrier.
Under the WC, an air carrier is made liable for damages for delay in the
transportation by air of passengers, luggage or goods. The WC also limits
the liability of the carrier to 250 francs per kilo of the total weight of the
package. The WC denies to the carrier availment of the provisions which
exclude or limit his liability, if the damage is caused by his willful misconduct
or by such default on his part as, in accordance with the law of the court
seized of the case, is considered as willful misconduct, or if the damage is
caused by any agent of the carrier acting w/in the scope of his employment.
2. The WC does not regulate or exclude liability for other breaches of contract
by the carrier or misconduct of its officers and employees or for some
particular or exceptional damage. The WC has been held inapplicable where
there was proof of malice or bad faith attributable to its officers and
employees. Here, however, there was no bad faith on the part of the
employees.
Nominal damages however, was awarded because of the presence of some
special species of injury caused to Dr. Pablo.
E. Limitations on Liability
Art. 18. (1) The carrier shall be liable for damage sustained in
the event of the destruction or loss of, or of damage to, any checked
baggage, or any goods, if the occurrence which caused the damage so
sustained took place during the transportation by air.
(2) The transportation by air within the meaning of the
proceeding paragraph shall comprise the period during which the
baggage or the goods are in charge of the carrier, whether in an airport
or on board an aircraft, or in the case of a landing outside an airport, in
any place whatsoever.
(3) The period of the transportation by air shall not extend to
any transportation by land, by sea, or by river performed outside of an
airport. If however, such transportation takes place in the performance of
a contract for transportation by air, for the purpose of loading, delivery,
or transshipment,any damage is presumed, subject to proof to the
contrary, to have been the result of an event which took place during the
transportation by air.
Art. 19. The carrier shall be liable for damage occasioned by
delay in the transportation by air of passengers,baggage, or goods.
RE: PASSENGERS
Art.22. (1) In the transportation of passengers the liability of
the carrier for each passenger shall be limited to the sum of 125,000
francs. (Now $100,000) Where, in accordance w/ the law of the court to
w/c the case is submitted, damages may be awarded in the form of
periodical payments, the equivalent capital value of the said payments
shall not be exceed 125,000 francs. Nevertheless, by special contract, the
carrier and the passenger may agree to a higher limit of liability.
RE: BAGGAGE/GOODS
(2) In the transportation of checked baggage and of goods, the
liability of the carrier shall be limited to a sum of 250 francs per kilogram
(Now $20 per kilo), unless the consignor has made, at the time when the
package was handed over to the carrier, a special declaration of the
value of the delivery and has paid a supplementary sum if the case so
requires. In that case, the carrier will be liable to pay a sum not
exceeding the declared sun, unless he proves that the sum is grater that
the actual value to the consignor at delivery.
(3) As regards objects of w/c the passenger takes charge
himself, the liability of the carrier shall be limited to 5,000 francs per
passenger.
PAGE 78
F:
Vinluan, ACCRA lawyer, was downgraded from 1st class to
economy & was issued refund
application, in his MNL-Europe-NYK- SFO-MNL flight. (His NYK-SFO flight
particularly) He also noticed that white Caucasian passengers who checked in
later than him were given preference in 1st class seats, w/c became available
due to "no show" passengers. He sued in CFI for breach of contract & bad
faith.
ISSUE: WON Warsaw Con. limit on liability can be availed of --- NO.
There was obvious discrimination & humiliation to w/c Vinluan was
subjected. Such inattention & lack of care for interest of its passengers
amount to bad faith w/c entitles passenger to moral damages.
NOTES: His entire trip, even though he availed of the services of other
airlines, is equal to one transport.
E.g. MNL-SFO via PAL } one continuing
SFO-NYK via United }
ticket
Hence, if injury appears in SFO-NYK, Warsaw can be applied.
F. Conditions of Liability
Art.26. (1) Receipt by the person entitled to the delivery of
baggage of goods w/o complaint shall be prima facie evidence that the
same have been delivered in good condition & in accordance w/ the
document of transpo.
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