F.C. Fisher v. Yangco Steamship Co.

or the traffic in such products would be necessary to hear

G.R. No. L-8095 March 31, 1915 evidence before making an affirmative finding that such
Carson, J. prejudice or discrimination was or was not unnecessary, undue
or unreasonable. The making of such a finding would involve a
consideration of the suitability of the vessel for the
FACTS: transportation of such products; the reasonable possibility of
Fisher is a stockholder in the Yangco Steamship Company. The danger or disaster resulting from their transportation in the form
directors of the company adopted a resolution which was and under the conditions in which they are offered for carriage;
thereafter ratified and affirmed by the shareholders of the the general nature of the business done by the carrier and, in a
company, expressly declaring and providing that the classes of word, all the attendant circumstances which might affect the
merchandise to be carried by the company in its business as a question of the reasonable necessity for the refusal by the
common carrier do not include dynamite, powder or other carrier to undertake the transportation of this class of
explosives, and expressly prohibiting the officers, agents and merchandise.
servants of the company from offering to carry, accepting for
carriage said dynamite, powder or other explosives.
Then Acting Collector of Customs demanded and required of the
company the acceptance and carriage of such explosives. He has
refused and suspended the issuance of the necessary clearance
documents of the vessels of the company unless and until the
company consents to accept such explosives for carriage.
Fisher was advised that should the company decline to
accept such explosives for carriage, the respondent Attorney-
General of the Philippine Islands and the respondent prosecuting
attorney of the city of Manila intend to institute proceedings
under the penal provisions of sections 4, 5, and 6 of Act No. 98
of the Philippine Commission against the company, its managers,
agents and servants.
Notwithstanding the demands of Fisher, the manager, agents and
servants of the company decline and refuse the carriage of such
explosives.

ISSUE: WON the acts complained of had the effect of making or

giving an unreasonable or unnecessary preference or advantage to
any person, locality or particular kind of traffic, or of subjecting
any person, locality, or particular kind of traffic to any undue or
unreasonable prejudice or discrimination

HELD: No.
There may be some vessels engaged in business as common
carriers of merchandise, which for lack of suitable deck space or
storage rooms might be justified in declining to carry kerosene
oil, gasoline, and similar products, even when offered for
carriage securely packed in cases; and few vessels are equipped
to transport those products in bulk. But in any case of a refusal
to carry such products which would subject any person, locality
TRANSPO SOUTHERN LINES INC VS CA
DOCTRINE: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.
FACTS:
- The City of Iloilo requisitioned for rice from the National Rice and Corn
Corporation (NARIC).
- NARIC shipped 1,726 sacks of rice consigned to the City of Iloilo on
board of SS General Wright belong to Southern Lines.
- The City of Iloilo received the shipment and paid the amount stated in the
bill of lading (around Php 63K).
- However, at the bottom of the bill of lading, it was noted that City of Iloilo
received the merchandise in the same condition as when shipped, except
that it received only 1,685 sacks.
- Upon actual weighing, it was discovered that the shortage was equal to
41 sacks of rice.
- Thus, the City of Iloilo filed a complaint against NARIC and Southern
Lines for the recovery of the value of the shortage of the shipment of rice
(Php 6,486.35).
- The lower court absolved NARIC but sentenced Southern Lines to pay
the amount.
- CA affirmed.
- Hence, this petition for review.
- Southern Lines claims exemption from liability by contending that the
shortage in the shipment of rice was due to such factors as shrinkage,
leakage or spillage of the rice on account of the bad condition of the sacks at
the time it received the same and negligence of the agents of City of Iloilo in
receiving the shipment.
ISSUES:
- Whether Southern Lines is liable for the loss or shortage of the rice
shipped.YES
- Whether the City of Iloilo is precluded from filing an action for damages on
account of its failure to present a claim within 24 hours from receipt of the
shipment as stated in the bill of lading.NO
HELD:
- YES. The SC held that the contention of Southern Lines with respect to
the improper packing is untenable.Under Art. 361 of the Code of Commerce,
the carrier, in order to free itself from liability, was only obliged to prove that
the damages suffered by the goods were by virtue of the nature or defect of
the articles. Under Art. 362, the plaintiff, in order to hold the defendant liable,
was obliged to prove that the damages to the goods is by virtue of their
nature, occurred on account of its negligence or because the defendant did
not take the precaution adopted by careful persons.It held that 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.
- NO. The SC noted that Southern Lines failed to plead this defense in its
answer to City of Iloilos complaint and, therefore, the same is deemed
waived and cannot be raised for the first time.The SC also cited the finding of
the CA that City of Iloilo filed the action within a reasonable time; that the
action is one for the refund of the amount paid in excess, and not for
damages or the recovery of shortage; the bill of lading does not at all limit the
time for the filing of action for the refund of money paid in excess.
008 Martini Ltd. v. Macondray & Co. AUTHOR: Boom
G.R. No. 13972. July 28, 1919. NOTES: (if
TOPIC: Obligations of Common Carriers (Art. applicable)
1733-1763, NCC) Duty to Accept
PONENTE: STREET, J.
FACTS:
September 1916, G. Martini, Ltd. arranged with Macondray & Co.
Inc., as agents of the Eastern and Australian Steamship Company, for
the shipment of 219 cases or packages of chemical products from
Manila, Philippine Islands, to Kobe, Japan.
September 15, 1916 (Friday), Martini applied to Macondray for
necessary space on the steamship Eastern, and received a shipping
order, which constituted authority for the ships officers to receive
the cargo aboard. The mates receipt did not come to Martinis hand
until Monday night, but as Martini was desirous of obtaining the
bills of lading on the Saturday morning preceding in order that
he might negotiate them at the bank, a request was made for the
delivery of the bills of lading on that day. To effectuate this,
Martini was required to enter into the written obligation, calling
itself a letter of guarantee.
In conformity with the purpose of this document the bills of
lading were issued, and the negotiable copies were, upon the
same day, negotiated at the bank by the plaintiff for 90% of the
invoice value of the goods. The bills of lading contained on their
face, conspicuously stenciled, the words on deck at shippers
risks. The mates receipt, received by the plaintiff two days later
also bore the notation on deck at shippers risk, written with
pencil, and evidently by the officer who took the cargo on board and
signed the receipt. Martini says that upon seeing the stamped on
deck at shippers risks, he at once called the attention of S. Codina
(Martini Employee whose duty it was to attend to all shipments of
merchandise and who in fact had entire control of all matters relating
to the shipping of the cargo)
Martini sent Macondray letters stating that they would be held
liable for any damage or loss if the goods were stowed on deck.
2nd letter of Martini to Macondray
It is the prevailing practice that, whenever a cargo is being carried
on deck, shipowners or agents give advice of it to shippers previous
to shipment taking place, and obtain their consent to it. If we had
been advised of it, shipment would not have been effected by us. We
regret very much this occurrence, but you will understand that in
view of your having acted in this case on your own responsibility, we
shall have to hold you amenable for any consequences that may be
caused from your action.
Macondray called Codina by telephone and told him that
Macondray could not accept the cargo for transportation
otherwise than on deck and that if Martini were dissatisfied, the
cargo could be discharged from the ship.
There is substantial conformity in the testimony of the two parties
with respect to the time of the conversation by telephone and the
nature of the message which Macondray & Company intended to
convey, though the witnesses differ as to some details and in respect
to what occurred immediately thereafter. But in conclusion, seems
clear enough that, although Martini & Company would have
greatly preferred for the cargo to be carried under the hatches,
they nevertheless consented for it to go on deck.
The goods were embarked at Manila on the steamship Eastern and
were carried to Kobe on the deck of that ship, on 16 September 1916.
Upon arrival at the port of destination it was found that the chemicals
comprised in the shipment had suffered damage from the effects of
both fresh and salt water.
An action was instituted by Martini to recover the amount of the
damage thereby occasioned.
CFI - judgment was rendered in favor of Martini for the sum of
P34,997.56, with interest from 24 March 1917, and costs of the
proceeding.
ISSUE(S): WON Macondray should be held liable
HELD: NO
protected the ship from liability for the consequences of negligent acts, if
negligence had been alleged and proved.
RATIO:
It is inferable that one reason why Martini allowed the cargo to be carried
away without being discharged, was that the bills had been discounted and to
stop the shipment would have entailed the necessity of refunding the money
which the bank had advanced, with the inconveniences incident thereto.
Another reason apparently was that Martini discerned, or thought he
discerned the possibility of shifting the risk so as to make it fall upon the
ships company
Having determined that the Plaintiff consented to the shipment of the cargo
on deck, we proceed to consider whether the Defendant can be held liable for
the damage which befell the cargo in question. It of course goes without
saying that if a clean bill of lading had been issued and the Plaintiff had not
consented for the cargo to go on deck, the ships company would have been
liable for all damage which resulted from the carriage on deck.
It is apparent that damage here was caused by rain and sea water the risk
of which is inherently incident to carriage on deck the Defendant cannot
be held liable. It is not permissible for the court, in the absence of any
allegation or proof of negligence, to attribute negligence to the ships
employees in the matter of protecting the goods from rains and storms. The
complaint on the contrary clearly indicates that the damage done was due to
the mere fact of carriage on deck, no other fault or delinquency on the part of
anybody being alleged.
Paragraph 19 of the bills of lading, the ship is not to be held liable, in the
case of goods signed for as carried on deck, for any loss or damage from any
cause whatever. We are not to be understood as holding that this
provision would have protected the ship from liability for the
consequences of negligent acts, if negligence had been alleged and
proved.
Cases Mentioned
The Paragon
the master stowed the goods on deck; and a storm having arisen, it became
necessary to jettison them. None of the cargo in the hold was lost. It was thus
evident that although the cargo in question was lost by peril of the sea, it
would not have been lost except for the fact that it was being carried on deck.
It was held that the ship was liable.
Van Horn vs. Taylor
Goods stowed on deck were lost in a collision. The court found that the ship
carrying these goods was not at fault, and that the shipper had notice of the
fact that the cargo was being carried on deck. It was held that the ship was
not liable.
Lawrence vs. Minturn
Stowed on deck with the consent of the shipper were jettisoned during a
storm at sea. In discussing whether this cargo was entitled to general average,
the Supreme Court of the United States said:
Gould vs. Oliver
Where the loading on deck has taken place with the consent of the
merchant, it is obvious that no remedy against the shipowner or master for a
wrongful loading of the goods on deck can exist. The foreign authorities are
indeed express; on that point. And the general rule of the English law, that no
one can maintain an action for a wrong, where he has consented or
contributed to the act which occasioned his loss, leads to the same
conclusion.
Clark vs. Barnwell
Here, the Supreme Court distinguishes with great precision between the
situation where the burden of proof is upon the ship owner to prove that the
loss resulted from an excepted peril and that where the burden of proof is
upon the owner of the cargo to prove that the loss was caused by negligence
on the part of the persons employed in the conveyance of the goods. The first
two syllabi in Clark vs. Barnwell read as follows: Where goods are shipped
and the usual bill oflading given, promising to deliver them in good order,
the dangers of the seas excepted, and they are foundto be damaged the onus
probandi is upon the owners of the vessel, to show that the injury was
occasioned byone of the excepted causes. But, although the injury may
have been occasioned by one of the excepted causes,yet still the owners of
the vessel are responsible if the injury might have been avoided, by the
exercise ofreasonable skill and attention on the part of the persons employed
in the conveyance of the goods. But theonus probandi then becomes shifted
upon the shipper, to show the negligence Damage due to dampness not the
fault of master or owners
CASE LAW/ DOCTRINE:
Paragraph 19 of the bills of lading, the ship is not to be held liable, in the
case of goods signed for as carried on deck, for any loss or damage from any
cause whatever.
DISSENTING/CONCURRING OPINION(S):