165. Lopez v.

Duruelo
Doctrine: The mercantile laws, in making use of the words ship, vessels, boat, embarkation,
etc., refer exclusively to those which are engaged in the transportation of passengers and
freight from one port to another or from one place to another, in other words, to merchant
vessels and in no way can they or should they be understood as referring to pleasure craft,
yachts, pontoons, health service and harbor police vessels, floating storehouses, warships or
patrol vessels, coast guard vessels, fishing vessels, towboats, and other craft destined to
other uses, such as for instance coast and geodetic survey, those engaged in scientific
research and exploration, craft engaged in the loading and discharge of vessels from same
to shore or docks, or in transshipment and those small craft which in harbors, along shore,
bays, inlets, coves and anchorages are engaged in transporting passengers and baggage.
Facts: Lopez rode the small boat, jison, for him to ride the interisland steamer, San
Jacinto. But jison came too close to San Jacinto and was hit by the latters propeller blades.
Lopez was thrown off and was injured by the blades. Lopez sued for damages arguing that
his injuries were caused by the negligence of Jisons Patron, Duruelo. Duruelo and jison filed
a demurrer arguing the complaint does not allege that a protest had been presented by
Lopez within 24 hours after the occurrence, to the competent authority at the port where the
accident occurred required by article 835 of the code of commerce in order to show a good
cause of action.
Issue: Whether a protest is required in this case for there to be a cause of action.
Held: No. Protest is not required because art. 835 only covers vessels and the term vessel
does not cover a boat not engaged in maritime commerce such as the Jison.
Article 835 of the code of commerce applies only to sea-going vessels and not
those engaged in Rever and bay traffic
Article 835 of the code of commerce is found in the section dealing with collisions, and the
context shows the collisions intended are collisions of sea-going vessels and cannot be
applied to small boats engaged in river and bay traffic. The 3rd book of the code of
commerce, dealing with maritime commerce, of which the section of collisions forms a part,
was intended to define the law relative to Merchant vessels and marine shipping; and run by
masters having special training, with the elaborate apparatus of crew and equipment
indicated in the code.
The word vessel (spanish, buque, nave), used in the section referred to was not
intended to include all ships, craft or floating structures of every kind without limitation, and
the provisions of that section should not be held to include minor craft engaged only in river
and bay traffic. Vessels which are licensed to engage in maritime commerce, or commerce
by sea, whether in foreign or coastwise trade, are no doubt regulated by book iii of the code
of commerce. Other vessels of a minor nature not engaged in maritime commerce, such as
river boats and those carrying passengers from ship to shore, must be governed, as to their
liability to passengers, by the provisions of the civil code or other appropriate special
provisions of law.
The jison not a boat as contemplated in article 835, requiring protest in case of collision
Herein, the jison was propelled by a second-hand motor, originally used for a tractor plow;
and it had a capacity for only 8 persons. The use to which it was being put was the carrying
of passengers and luggage Between the landing at silay and ships in the harbor. This was
not such a boat as is contemplated in article 835 of the code of commerce, requiring protest
in case of collision.
A passenger on boat not required to make protest; an individual who suffered
fractures cannot be supposed to make protest within 24 hours after occurrence

A passenger on a boat, like the jison herein, is not required to make protest as a condition
precedent to his right of action for the injury suffered by him in the collision described in the
complaint. In other words, Article 835 of the code of commerce does not apply. But even if
said provision had been considered applicable, a fair interpretation of the allegations of the
complaint indicates, that the injuries suffered by Lopez were of such a nature as to excuse
protest; for, under article 836, it is provided that want of protest cannot prejudice a person
not in a condition to make known his wishes. An individual who has suffered a compound
fracture of the femur and received other physical injuries sufficient to keep him in a hospital
for many months, cannot be supposed to have been in a condition to make protest within 24
hours of such occurrence.