1
G.R. No. 107356 March 31, 1995
SINGAPORE AIRLINES LIMITED, petitioner, vs.
THE COURT OF APPEALS and PHILIPPINE
AIRLINES, respondents.
ROMERO, J.:
Sancho Rayos was an overseas contract worker who had a
renewed contract with the Arabian American Oil Company
(Aramco) for the period covering April 16, 1980, to April 15,
1981. As part of Aramco's policy, its employees returning to
Dhahran, Saudi Arabia from Manila are allowed to claim
reimbursement for amounts paid for excess baggage of up to 50
kilograms, as long as it is properly supported by receipt. On April
1980, Rayos took a Singapore Airlines (SIA) flight to report for
his new assignment, with a 50-kilogram excess baggage for
which he paid P4,147.50. Aramco reimbursed said. amount
upon presentation of the excess baggage ticket.
In December 1980, Rayos learned that he was one of several
employees being investigated by Aramco for fraudulent claims.
He immediately asked his wife Beatriz in Manila to seek a written
confirmation from SIA that he indeed paid for an excess
baggage of 50 kilograms. On December 10, 1980, SIA's
manager, Johnny Khoo, notified Beatriz of their inability to issue
the certification requested because their records showed that
only three kilograms were entered as excess and accordingly
charged. SIA issued the certification requested by the spouses
Rayos only on April 8, 1981, after its investigation of the anomaly
and after Beatriz, assisted by a lawyer, threatened it with a
lawsuit. On April 14, 1981, Aramco gave Rayos his travel
documents without a return visa. His employment contract was
not renewed.
On August 5, 1981, the spouses Rayos, convinced that SIA was
responsible for the non-renewal of Rayos' employment contract
with Aramco, sued it for damages. SIA claimed that it was not
liable to the Rayoses because the tampering was committed by
its handling agent, Philippine Airlines (PAL). It then filed a third-
party complaint against PAL. PAL, in turn, countered that its
personnel did not collect any charges for excess baggage; that
it had no participation in the tampering of any excess baggage
ticket; and that if any tampering was made, it was done by SIA's
personnel.
Judge Jesus O. Ibay of the Regional Trial Court of Manila,
Branch 30, rendered judgment on September 9, 1988, in favor
of the plaintiffs, the dispositive portion of which reads thus:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiffs and against the defendant Singapore Airlines Limited,
sentencing the latter to pay the former the following:
1. The sum of Four Hundred Thirty Thousand Nine Hundred
Pesos and Eighty Centavos (P430,900.80) as actual damages,
with interest at the legal rate from the date of the filing of the
complaint until fully paid.
2. The sum of Four Thousand One Hundred Forty-Seven Pesos
and Fifty Centavos (P4,147.50) as reimbursement for the
amount deducted from Mr. Rayos' salary, also with legal rate of
interest from the filing of the complaint until paid in full;
3. The sum of Fifty Thousand Pesos (P50,000.00) as moral
damages;
4. The sum equivalent to ten Per Cent (10th) of the total amount
due as and for attorney's fees; and
5. The cost of suit.
The defendant's counterclaim is hereby dismissed.
ON THE THIRD PARTY COMPLAINT, the third-party defendant
PAL is ordered to pay defendant and third-party plaintiff SIA
whatever the latter has paid the plaintiffs.
SO ORDERED.
In so ruling, the court a quo concluded that the excess baggage
ticket of Rayos was tampered with by the employees of PAL and
that the fraud was the direct and proximate cause of the non-
renewal of Rayos' contract with Aramco.
All parties appealed to the Court of Appeals. SIA's appeal was
dismissed for non-payment of docket fees, which dismissal was
eventually sustained by this Court. The Rayos spouses withdrew
their appeal when SIA satisfied the judgment totaling
P802,435.34.
In its appeal, PAL claimed that the spouses Rayos had no valid
claim against SIA because it was the inefficiency of Rayos which
led to the non-renewal of his contract with Aramco, and not the
alleged tampering of his excess bagged ticket On the other
hand, SIA argued that the only issue in the said appeal is
whether or not it was entitled to reimbursement from PAL, citing
the case of Firestone Tire and Rubber Company of the
Philippines v. Tempongko.1
The appellate court disagreed with SIA's contention that PAL
could no longer raise the issue of SIA's liability to the Rayoses
and opined "that SIA's answer to the complaint should inure to
the benefit of PAL, and the latter may challenge the lower court's
findings against SIA in favor of plaintiffs-appellees (the Rayos
spouses) for the purpose of defeating SIA's claim against it, and
not for the purpose of altering in any way the executed judgment
against SIA." In its answer to the main complaint, SIA set up the
defense that the excess baggage ticket was indeed tampered
with but it was committed by PAL's personnel. On September
21, 1992, the appellate court granted PAL's appeal and
absolved it from any liability to SIA.
In this petition for review, SIA argues that PAL cannot validly
assail for the first time on appeal the trial court's decision
sustaining the validity of plaintiff's complaint against SIA if PAL
did not raise this issue in the lower court. It added that the
appellate court should have restricted its ruling on the right of
SIA to seek reimbursement from PAL, as this was the only issue
raised by SIA in its third-party complaint against PAL.
The instant appeal is impressed with merit.
The petitioner correctly pointed out that the case
of Firestone squarely applies to the case at bench. In said case,
the Court expounded on the nature of a third-party complaint
and the effect of a judgment in favor of the plaintiff against the
defendant and in favor of such defendant as third-party plaintiff

against, ultimately, the third-party defendant. Speaking through
then Justice and later Chief Justice Claudio Teehankee, the
Court stated:
The third-party complaint is, therefore, a procedural device
whereby a "third party" who is neither a party nor privy to the act
or deed complained of by the plaintiff, may be brought into the
case with leave of court, by the defendant, who acts as third-
party plaintiff to enforce against such third-party defendant a
right for contribution, indemnity, subrogation or any other relief,
in respect of the plaintiff's claim. The third-party complaint is
actually independent of and separate and distinct from the
plaintiff's complaint. . . . When leave to file the third-party
complaint is properly granted, the Court renders in effect two
judgments in the same case, one on the plaintiff's complaint and
the other on the third-party complaint. When he finds favorably
on both complaints, as in this case, he renders judgment on the
principal complaint in favor of plaintiff against defendant and
renders another judgment on the third-party complaint in favor
of defendant as third-party plaintiff, ordering the third-party
defendant to reimburse the defendant whatever amount said
defendant is ordered to pay plaintiff in the case. Failure of any
of said parties in such a case to appeal the judgment as against
him makes such judgment final and executory. By the same
token, an appeal by one party from such judgment does not
inure to the benefit of the other party who has not appealed nor
can it be deemed to be an appeal of such other party from the
judgment against him.
It must be noted that in the proceedings below, PAL disclaimed
any liability to the Rayoses and imputed the alleged tampering
to SIA's personnel. On appeal, however, PAL changed its theory
and averred that the spouses Rayos had no valid claim against
SIA on the around that the non-renewal of Sancho's contract
with Aramco was his unsatisfactory performance rather than the
alleged tampering of his excess baggage ticket. In response to
PAL's appeal, SIA argued that it was improper for PAL to
question SIA's liability to the plaintiff, since this was no longer an
issue on account of the finality and, in fact, satisfaction of the
judgment.
Surprisingly, the appellate court ignored the Court's
pronouncements in Firestone and declared:
[T]here is nothing in the citation which would suggest that the
appellant cannot avail of the defenses which would have been
available to the non-appealing party against the prevailing party
which would be beneficial to the appellant. After all, PAL's
liability here is premised on the liability of SIA to plaintiffs-
appellees, In its own defense, it should have the right to avail of
defenses of SIA against plaintiffs-appellees which would
redound to its benefit. This is especially true here where SIA lost
the capability to defend itself on the technicality of failure to pay
docket fee, rather than on the merits of its appeal. To hold
otherwise would be to open the door to a possible collusion
between the plaintiff and defendant which would leave the third-
party defendant holding the bag.
There is no question that a third-party defendant is allowed to
set up in his answer the defenses which the third-party plaintiff
(original defendant) has or may have to the plaintiff's claim.
There are, however, special circumstances present in this case
2
which preclude third-party defendant PAL from benefiting from
the said principle.
One of the defenses available to SIA was that the plaintiffs had
no cause of action, that is, it had no valid claim against SIA. SIA
investigated the matter and discovered that tampering was,
indeed, committed, not by its personnel but by PAL's. This
became its defense as well as its main cause of action in the
third-party complaint it filed against PAL. For its part, PAL could
have used the defense that the plaintiffs had no valid claim
against it or against SIA. This could be done indirectly by
adopting such a defense in its answer to the third-party
complaint if only SIA had raised the same in its answer to the
main complaint, or directly by so stating in unequivocal terms in
its answer to SIA's complaint that SIA and PAL were both
blameless. Yet, PAL opted to deny any liability which it imputed
to SIA's personnel. It was only on appeal — in a complete turn
around of theory — that PAL raised the issue of no valid claim
by the plaintiff against SIA. This simply cannot be allowed.
While the third-party defendant; would benefit from a victory by
the third-party plaintiff against the plaintiff, this is true only when
the third-party plaintiff and third-party defendant have non-
contradictory defenses. Here, the defendant and third-party
defendant had no common defense against the plaintiffs'
complaint, and they were even blaming each other for the fiasco.
Fear of collusion between the third-party plaintiff and the
plaintiffs aired by the appellate court is misplaced if not totally
unfounded. The stand of SIA as against the plaintiffs' claim was
transparent from the beginning. PAL was aware of SIA's
defense, and if it was convinced that SIA should have raised the
defense of no valid claim by the plaintiffs, it should have so
stated in its answer as one of its defenses, instead of waiting for
an adverse judgment and raising it for the first time on appeal.
The judgment, therefore, as far as the Rayoses and SIA are
concerned, has already gained finality. What remains to be
resolved, as correctly pointed out by petitioner, is whether it is
entitled to reimbursement from PAL, considering that PAL
appealed that part of the decision to the appellate court. This is
where the rule laid down in Firestone becomes applicable.
The trial court's decision, although adverse to SIA as defendant,
made PAL ultimately answerable for the judgment by ordering
the latter to reimburse the former for the entire monetary award.
On appeal, PAL tried to exonerate itself by arguing that the
Rayoses had no valid claim against SIA. From PAL's viewpoint,
this seemed to be the only way to extricate itself from a mess
which the court a quo ascribed to it. This cannot, however, be
allowed because it was neither raised by SIA in its answer to the
main complaint nor by PAL in its answer to the third-party
complaint. The prudent thing that PAL should have done was to
state in its answer to the third-party complaint filed by SIA
against it everything that it may conceivably interpose by way of
its defense, including specific denials of allegations in the main
complaint which implicated it along with SIA.
The appellate court was in error when it opined that SIA's
answer inured to the benefit of PAL for the simple reason that
the complaint and the third-party complaint are actually two
separate cases involving the same set of facts which is allowed
by the court to be resolved in a single proceeding only to avoid

a multiplicity of actions. Such a proceeding obviates the need of
trying two cases, receiving the same or similar evidence for both,
and enforcing separate judgments therefor. This situation is not,
as claimed by the appellate court, analogous to a case where
there are several defendants against whom a complaint is filed
stating a common cause of action, where the answer of some of
the defendants inures to the benefit of those who did not file an
answer. While such a complaint speaks of a single suit, a third-
party complaint involves an action separate and distinct from,
although related to the main complaint. A third-party defendant
who feels aggrieved by some allegations in the main complaint
should, aside from answering the third-party complaint, also
answer the main complaint.
We do not, however, agree with the petitioner that PAL is solely
liable for the satisfaction of the judgment. While the trial court
found, and this has not been adequately rebutted by PAL, that
the proximate cause of the non-renewal of Rayos' employment
contract with Aramco was the tampering of his excess baggage
ticket by PAL's personnel, it failed to consider that the immediate
cause of such non-renewal was SIA's delayed transmittal of the
certification needed by Rayos to prove his innocence to his
employer.
SIA was informed of the anomaly in December 1980 but only
issued the certification four months later or, more specifically, on
April 8, 1981, a few days before the expiration of Rayos'
contract. Surely, the investigation conducted by SIA could not
have lasted for four months as the information needed by the
Rayoses could easily be verified by comparing the duplicate
excess baggage tickets which they and their handling agent,
PAL, kept the record purposes. The fact that the Rayos spouses
had to be assisted by counsel who threatened to file a damage
suit against SIA if the certification they urgently needed was not
immediately issued only strengthens the suspicion that SIA was
not dealing with them in utmost good faith. The effect of SIA's
mishandling of Beatriz Rayos' request became instantly
apparent when her husband's contract was not renewed in spite
of his performance which was constantly "highly regarded" by
the manager of Aramco's equipment services department.
Former Chief Justice and noted remedial law expert Manuel V.
Moran opined that "in an action upon a tort, the defendant may
file a third-party complaint against a joint tort-feasor for
contribution."2
The non-renewal of Rayos employment contract was the natural
and probable consequence of the separate tortious acts of SIA
and PAL. Under mandate of Article 2176 of the Civil Code,
Rayos is entitled to be compensated for such damages.
Inasmuch as the responsibility of two or more persons, or tort-
feasors, liable for a quasi-delict is joint and several,3 and the
sharing as between such solidary debtors is pro-rata,4 it is but
logical, fair, and equitable to require PAL to contribute to the
amount awarded to the Rayos spouses and already paid by SIA,
instead of totally indemnifying the latter.
WHEREFORE, the decision of the respondent Court of Appeals
in CA-G.R. CV No. 20488 dated September 21, 1992, is hereby
REVERSED and a new one is entered ordering private
respondent Philippine Airlines to pay, by way of contribution,
petitioner Singapore Airlines one-half (1/2) of the amount it
3
actually paid to Sancho and Beatriz Rayos in satisfaction of the
judgment in Civil Case No. 142252, dated September 9, 1988.
SO ORDERED.
G.R. No. 130068 October 1, 1998
FAR EASTERN SHIPPING COMPANY, petitioner, vs.
COURT OF APPEALS and PHILIPPINE PORTS
AUTHORITY, respondents.
G.R. No. 130150 October, 1998
MANILA PILOTS ASSOCIATION, petitioner, vs.
PHILIPPINE PORTS AUTHORITY and FAR EASTERN
SHIPPING COMPANY, respondents.
REGALADO, J.:
These consolidated petitions for review on certiorari seek in
unison to annul and set aside the decision1 of respondent Court
of Appeals of November 15, 1996 and its resolution 2 dated July
31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports
Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company,
Senen C. Gavino and Manila Pilots' Association, Defendants-
Appellants," which affirmed with modification the judgment of the
trial court holding the defendants-appellants therein solidarily
liable for damages in favor of herein private respondent.
There is no dispute about the facts as found by the appellate
court, thus —
. . . On June 20, 1980, the M/V PAVLODAR, flying under the
flagship of the USSR, owned and operated by the Far Eastern
Shipping Company (FESC for brevity's sake), arrived at the Port
of Manila from Vancouver, British Columbia at about 7:00 o'clock
in the morning. The vessel was assigned Berth 4 of the Manila
International Port, as its berthing space. Captain Roberto
Abellana was tasked by the Philippine Port Authority to
supervise the berthing of the vessel. Appellant Senen Gavino
was assigned by the Appellant Manila Pilots' Association (MPA
for brevity's sake) to conduct docking maneuvers for the safe
berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and
stationed himself in the bridge, with the master of the vessel,
Victor Kavankov, beside him. After a briefing of Gavino by
Kavankov of the particulars of the vessel and its cargo, the
vessel lifted anchor from the quarantine anchorage and
proceeded to the Manila International Port. The sea was calm
and the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the
Tondo North Harbor) one-half mile from the pier, Gavino ordered
the engine stopped. When the vessel was already about 2,000
feet from the pier, Gavino ordered the anchor dropped.
Kavankov relayed the orders to the crew of the vessel on the
bow. The left anchor, with two (2) shackles, were dropped.
However, the anchor did not take hold as expected. The speed
of the vessel did not slacken. A commotion ensued between the
crew members. A brief conference ensued between Kavankov
and the crew members. When Gavino inquired what was all the

commotion about, Kavankov assured Gavino that there was
nothing to it.
After Gavino noticed that the anchor did not take hold, he
ordered the engines half-astern. Abellana, who was then on the
pier apron, noticed that the vessel was approaching the pier fast.
Kavankov likewise noticed that the anchor did not take hold.
Gavino thereafter gave the "full-astern" code. Before the right
anchor and additional shackles could be dropped, the bow of the
vessel rammed into the apron of the pier causing considerable
damage to the pier. The vessel sustained damage too, (Exhibit
"7-Far Eastern Shipping). Kavankov filed his sea protest (Exhibit
"1-Vessel"). Gavino submitted his report to the Chief Pilot
(Exhibit "1-Pilot") who referred the report to the Philippine Ports
Authority (Exhibit 2-Pilot"). Abellana likewise submitted his
report of the incident (Exhibit "B").
Per contract and supplemental contract of the Philippine Ports
Authority and the contractor for the rehabilitation of the damaged
pier, the same cost the Philippine Ports Authority the amount of
P1,126,132.25 (Exhibits "D" and "E").3
On January 10, 1983, the Philippine Ports Authority (PPA, for
brevity), through the Solicitor General, filed before the Regional
Trial Court of Manila, Branch 39, a complaint for a sum of money
against Far Eastern Shipping Co., Capt. Senen C. Gavino and
the Manila Pilots' Association, docketed as Civil Case No. 83-
14958,4 praying that the defendants therein be held jointly and
severally liable to pay the plaintiff actual and exemplary
damages plus costs of suit. In a decision dated August 1, 1985,
the trial court ordered the defendants therein jointly and
severally to pay the PPA the amount of P1,053,300.00
representing actual damages and the costs of suit. 5
The defendants appealed to the Court of Appeals and raised the
following issues: (1) Is the pilot of a commercial vessel, under
compulsory pilotage, solely liable for the damage caused by the
vessel to the pier, at the port of destination, for his negligence?
and (2) Would the owner of the vessel be liable likewise if the
damage is caused by the concurrent negligence of the master
of the vessel and the pilot under a compulsory pilotage?
As stated at the outset, respondent appellate court affirmed the
findings of the court a quo except that if found no employer-
employee relationship existing between herein private
respondents Manila Pilots' Association (MPA, for short) and
Capt. Gavino.6 This being so, it ruled instead that the liability of
MPA is anchored, not on Article 2180 of the Civil Code, but on
the provisions of Customs Administrative Order No. 15-65, 7 and
accordingly modified said decision of the trial court by holding
MPA, along with its co-defendants therein, still solidarily liable to
PPA but entitled MPA to reimbursement from Capt. Gavino for
such amount of the adjudged pecuniary liability in excess of the
amount equivalent to seventy-five percent (75%) of its
prescribed reserve
fund. 8
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was
happy with the decision of the Court of Appeals and both of them
elevated their respective plaints to us via separate petitions for
review oncertiorari.
4
In G. R. No. 130068, which was assigned to the Second Division
of this Court, FESC imputed that the Court of Appeals seriously
erred:
1. in not holding Senen C. Gavino and the Manila Pilots'
Association as the parties solely responsible for the resulting
damages sustained by the pier deliberately ignoring the
established jurisprudence on the matter;
2. in holding that the master had not exercised the required
diligence demanded from him by the circumstances at the time
the incident happened;
3. in affirming the amount of damages sustained by the
respondent Philippine Ports Authority despite a strong and
convincing evidence that the amount is clearly exorbitant and
unreasonable;
4. in not awarding any amount of counterclaim prayed for by the
petitioner in its answer; and
5. in not granting herein petitioner's claim against pilot Senen C.
Gavino and Manila Pilots' Association in the event that it be held
liable. 9
Petitioner asserts that since the MV PAVLODAR was under
compulsory pilotage at the time of the incident, it was the
compulsory pilot, Capt. Gavino, who was in command and had
complete control in the navigation and docking of the vessel. It
is the pilot who supersedes the master for the time being in the
command and navigation of a ship and his orders must be
obeyed in all respects connected with her navigation.
Consequently, he was solely responsible for the damage caused
upon the pier apron, and not the owners of the vessel. It claims
that the master of the boat did not commit any act of negligence
when he failed to countermand or overrule the orders of the pilot
because he did not see any justifiable reason to do so. In other
words, the master cannot be faulted for relying absolutely on the
competence of the compulsory pilot. If the master does not
observe that a compulsory pilot is incompetent or physically
incapacitated, the master is justified in relying on the pilot. 10
Respondent PPA, in its comment, predictably in full agreement
with the ruling of respondent court on the solidary liability of
FESC, MPA and Capt. Gavino, stresses the concurrent
negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor
Kabankov, * shipmaster of MV Pavlodar, as the basis of their
solidary liability for damages sustained by PPA. It posits that the
vessel was being piloted by Capt. Gavino with Capt. Kabankov
beside him all the while on the bridge of the vessel, as the former
took over the helm of MV Pavlodar when it rammed and
damaged the apron of the pier of Berth No. 4 of the Manila
International Port. Their concurrent negligence was the
immediate and proximate cause of the collision between the
vessel and the pier — Capt. Gavino, for his negligence in the
conduct of docking maneuvers for the safe berthing of the
vessel; and Capt. Kabankov, for failing to countermand the
orders of the harbor pilot and to take over and steer the vessel
himself in the face of imminent danger, as well as for merely
relying on Capt. Gavino during the berthing procedure. 11
On the other hand, in G.R. No. 130150, originally assigned to
the Court's First Division and later transferred to the Third

Division. MPA, now as petitioner in this case, avers that
respondent court's errors consisted in disregarding and
misinterpreting Customs Administrative Order No. 15-65 which
limits the liability of MPA. Said pilots' association asseverates
that it should not be held solidarily liable with Capt. Gavino who,
as held by respondent court is only a member, not an employee,
thereof. There being no employer-employee relationship,
neither can MPA be held liable for any vicarious liability for the
respective exercise of profession by its members nor be
considered a joint tortfeasor as to be held jointly and severally
liable. 12 It further argues that there was erroneous reliance on
Customs Administrative Order No. 15-65 and the constitution
and by-laws of MPA, instead of the provisions of the Civil Code
on damages which, being a substantive law, is higher in
category than the aforesaid constitution and by-laws of a
professional organization or an administrative order which bears
no provision classifying the nature of the liability of MPA for the
negligence its member pilots. 13
As for Capt. Gavino, counsel for MPA states that the former had
retired from active pilotage services since July 28, 1994 and has
ceased to be a member of petitioner pilots' association. He is not
joined as a petitioner in this case since his whereabouts are
unknown. 14
FESC's comment thereto relied on the competence of the Court
of Appeals in construing provisions of law or administrative
orders as bases for ascertaining the liability of MPA, and
expressed full accord with the appellate court's holding of
solidary liability among itself, MPA and Capt. Gavino. It further
avers that the disputed provisions of Customs Administrative
Order No. 15-65 clearly established MPA's solidary liability. 15
On the other hand, public respondent PPA, likewise through
representations by the Solicitor General, assumes the same
supportive stance it took in G.R. No. 130068 in declaring its total
accord with the ruling of the Court of Appeals that MPA is
solidarily liable with Capt. Gavino and FESC for damages, and
in its application to the fullest extent of the provisions of Customs
Administrative Order No. 15-65 in relation to MPA's constitution
and by-laws which spell out the conditions of and govern their
respective liabilities. These provisions are clear and
unambiguous as regards MPA's liability without need for
interpretation or construction. Although Customs Administrative
Order No. 15-65 is a mere regulation issued by an administrative
agency pursuant to delegated legislative authority to fix details
to implement the law, it is legally binding and has the same
statutory force as any valid statute. 16
Upon motion 17 by FESC dated April 24, 1998 in G.R. No.
130150, said case was consolidated with G.R. No. 130068. 18
Prefatorily, on matters of compliance with procedural
requirements, it must be mentioned that the conduct of the
respective counsel for FESC and PPA leaves much to be
desired, to the displeasure and disappointment of this Court.
Sec. 2, Rule 42 of the 1997 Rules of Civil
Procedure 19 incorporates the former Circular No. 28-91 which
provided for what has come to be known as the certification
against forum shopping as an additional requisite for petitions
filed with the Supreme Court and the Court of Appeals, aside
from the other requirements contained in pertinent provisions of
5
the Rules of Court therefor, with the end in view of preventing
the filing of multiple complaints involving the same issues in the
Supreme Court, Court of Appeals or different divisions thereof
or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42
provides:
xxx xxx xxx
The petitioner shall also submit together with the petition a
certification under oath that he has not theretofore commenced
any other action involving the same issues in the Supreme
Court, the Court of Appeals or different divisions thereof, or any
other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days
therefrom. (Emphasis ours.)
For petitions for review filed before the Supreme Court, Section
4(e), Rule 45 specifically requires that such petition shall contain
a sworn certification against forum shopping as provided in the
last paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del
Rosario through its associate, Atty. Herbert A. Tria, is the
counsel of record for FESC in both G.R. No. 130068 and G.R.
No. 130150.
G.R. No. 130068, which is assigned to the Court's Second
Division, commenced with the filing by FESC through counsel
on August 22, 1997 of a verified motion for extension of time to
file its petition for thirty (30) days from August 28, 1997 or until
September 27, 1997. 20 Said motion contained the following
certification against forum shopping 21 signed by Atty. Herbert A.
Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other
action or proceeding involving the same issues in the Supreme
Court, the Court of Appeals, or any other tribunal or agency; that
to the best of my own knowledge, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals, or any
other tribunal or agency; that if I/we should thereafter learn that
a similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or any other tribunal
or agency, I/we undertake to report that fact within five (5) days
therefrom to this Honorable Court.
This motion having been granted, FESC subsequently filed its
petition on September 26, 1997, this time bearing a "verification
and certification against forum-shopping" executed by one
Teodoro P. Lopez on September 24, 1997, 22 to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING

in compliance with Section 4(e), Rule 45 in relation
to Section 2, Rule 42 of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose
and state:
1. That I am the Manager, Claims Department of Filsov Shipping
Company, the local agent of petitioner in this case.
2. That I have caused the preparation of this Petition for Review
on Certiorari.
3. That I have read the same and the allegations therein
contained are true and correct based on the records of this case.
4. That I certify that petitioner has not commenced any other
action or proceeding involving the same issues in the Supreme
Court or Court of Appeals, or any other tribunal or agency, that
to the best of my own knowledge, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals or any
other tribunal or agency, that if I should thereafter learn that a
similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or any other tribunal
or agency, I undertake to report the fact within five (5) days
therefrom to this Honorable Court. (Italics supplied for
emphasis.)
Reviewing the records, we find that the petition filed by MPA in
G.R. No. 130150 then pending with the Third Division was duly
filed on August 29, 1997 with a copy thereof furnished on the
same date by registered mail to counsel for FESC. 23 Counsel of
record for MPA. Atty. Jesus P. Amparo, in his verification
accompanying said petition dutifully revealed to the Court that
—
xxx xxx xxx
3. Petitioner has not commenced any other action or proceeding
involving the same issues in this Honorable Court, the Court of
Appeals or different Divisions thereof, or any other tribunal or
agency, but to the best of his knowledge, there is an action or
proceeding pending in this Honorable Court, entitled Far Eastern
Shipping Co., Petitioner, vs. Philippine Ports Authority and Court
of Appeals with a Motion for Extension of time to file Petition For
Review by Certiorari filed sometime on August 18, 1987. If
undersigned counsel will come to know of any other pending
action or claim filed or pending he undertakes to report such fact
within five (5) days to this Honorable Court. 24 (Emphasis
supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted by
registered mail on August 29, 1997 and taking judicial notice of
the average period of time it takes local mail to reach its
destination, by reasonable estimation it would be fair to conclude
that when FESC filed its petition in G.R. No. 130068 on
September 26, 1997, it would already have received a copy of
the former and would then have knowledge of the pendency of
the other petition initially filed with the First Division. It was
therefore incumbent upon FESC to inform the Court of that fact
through its certification against forum shopping. For failure to
make such disclosure, it would appear that the aforequoted
certification accompanying the petition in G.R. No. 130068 is
defective and could have been a ground for dismissal thereof.
6
Even assuming that FESC had not yet received its copy of
MPA's petition at the time it filed its own petition and executed
said certification, its signatory did state "that if I should thereafter
learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals or any
other tribunal or agency, I undertake to report the fact within five
(5) days therefrom to this Honorable Court." 25Scouring the
records page by page in this case, we find that no manifestation
concordant with such undertaking was then or at any other time
thereafter ever filed by FESC nor was there any attempt to bring
such matter to the attention of the Court. Moreover, it cannot
feign non-knowledge of the existence of such other petition
because FESC itself filed the motion for consolidation in G.R.
No. 130150 of these two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del
Rosario and Del Rosario, displays an unprofessional tendency
of taking the Rules for granted, in this instance exemplified by
its pro forma compliance therewith but apparently without full
comprehension of and with less than faithful commitment to its
undertakings to this Court in the interest of just, speedy and
orderly administration of court proceedings.
As between the lawyer and the courts, a lawyer owes candor,
fairness and good faith to the court. 26 He is an officer of the
court exercising a privilege which is indispensable in the
administration of justice. 27Candidness, especially towards the
courts, is essential for the expeditious administration of justice.
Courts are entitled to expect only complete honesty from
lawyers appearing and pleading before them. 28 Candor in all
dealings is the very essence of honorable membership in the
legal profession. 29 More specifically, a lawyer is obliged to
observe the rules of procedure and not to misuse them to defeat
the ends of justice. 30 It behooves a lawyer, therefore, to exert
every effort and consider it his duty to assist in the speedy and
efficient administration of justice. 31 Being an officer of the court,
a lawyer has a responsibility in the proper administration of
justice. Like the court itself, he is an instrument to advance its
ends — the speedy, efficient, impartial, correct and inexpensive
adjudication of cases and the prompt satisfaction of final
judgments. A lawyer should not only help attain these objectives
but should likewise avoid any unethical or improper practices
that impede, obstruct or prevent their realization, charged as he
is with the primary task of assisting in the speedy and efficient
administration of justice.32
Sad to say, the members of said law firm sorely failed to observe
their duties as responsible members of the Bar. Their actuations
are indicative of their predisposition to take lightly the avowed
duties of officers of the Court to promote respect for law and for
legal processes. 33 We cannot allow this state of things to pass
judicial muster.
In view of the fact that at around the time these petitions were
commenced, the 1997 Rules of Civil Procedure had just taken
effect, the Court treated infractions of the new Rules then with
relative liberality in evaluating full compliance therewith.
Nevertheless, it would do well to remind all concerned that the
penal provisions of Circular No. 28-91 which remain operative
provides, inter alia:
3. Penalties. —

xxx xxx xxx
(c) The submission of a false certification under Par. 2 of the
Circular shall likewise constitute contempt of court, without
prejudice to the filing of criminal action against the guilty party.
The lawyer may also be subjected to disciplinary proceedings.
It must be stressed that the certification against forum shopping
ordained under the Rules is to be executed by the petitioner, and
not by counsel. Obviously it is the petitioner, and not always the
counsel whose professional services have been retained for a
particular case, who is in the best position to know whether he
or it actually filed or caused the filing of a petition in that case.
Hence, a certification against forum shopping by counsel is a
defective certification. It is clearly equivalent to non-compliance
with the requirement under Section 2, Rule 42 in relation to
Section 4, Rule 45, and constitutes a valid cause for dismissal
of the petition.
Hence, the initial certification appended to the motion for
extension of time to file petition in G.R. No. 130068 executed in
behalf of FESC by Atty. Tria is procedurally deficient. But
considering that it was a superfluity at that stage of the
proceeding, it being unnecessary to file such a certification with
a mere motion for extension, we shall disregard such error.
Besides, the certification subsequently executed by Teodoro P.
Lopez in behalf of FESC cures that defect to a certain extent,
despite the inaccuracies earlier pointed out. In the same vein,
we shall consider the verification signed in behalf of MPA by its
counsel, Atty. Amparo, in G.R. No. 130150 as substantial
compliance inasmuch as it served the purpose of the Rules of
informing the Court of the pendency of another action or
proceeding involving the same issues.
It bears stressing that procedural rules are instruments in the
speedy and efficient administration of justice. They should be
used to achieve such end and not to derail it. 34
Counsel for PPA did not make matters any better. Despite the
fact that, save for the Solicitor General at the time, the same
legal team of the Office of the Solicitor General (OSG, for short)
composed of Assistant Solicitor General Roman G. Del Rosario
and Solicitor Luis F. Simon, with the addition of Assistant
Solicitor General Pio C. Guerrero very much later in the
proceedings, represented PPA throughout the appellate
proceedings in both G.R. No. 130068 and G.R. No. 130150 and
was presumably fully acquainted with the facts and issues of the
case, it took the OSG an inordinately and almost unreasonably
long period of time to file its comment, thus unduly delaying the
resolution of these cases. It took several changes of leadership
in the OSG — from Silvestre H. Bello III to Romeo C. dela Cruz
and, finally, Ricardo P. Galvez — before the comment in behalf
of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of
time totaling 210 days, a warning that no further extensions shall
be granted, and personal service on the Solicitor General
himself of the resolution requiring the filing of such comment
before the OSG indulged the Court with the long required
comment on July 10, 1998. 35 This, despite the fact that said
office was required to file its comment way back on November
12, 1997. 36 A closer scrutiny of the records likewise indicates
that petitoner FESC was not even furnished a copy of said
7
comment as required by Section 5, Rule 42. Instead, a copy
thereof was inadvertently furnished to MPA which, from the point
of view of G.R. No. 130068, was a non-party. 37 The OSG fared
slightly better in G.R. No. 130150 in that it took only six (6)
extensions, or a total of 180 days, before the comment was
finally filed. 38 And while it properly furnished petitioner MPA with
a copy of its comment, it would have been more desirable and
expedient in this case to have furnished its therein co-
respondent FESC with a copy thereof, if only as a matter of
professional courtesy. 39
This undeniably dilatory disinclination of the OSG to seasonably
file required pleadings constitutes deplorable disservice to the
tax-paying public and can only be categorized as censurable
inefficiency on the part of the government law office. This is most
certainly professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take
the inititive of filing a motion for consolidation in either G.R. No.
130068 or G.R. No. 130150, considering its familiarity with the
background of the case and if only to make its job easier by
having to prepare and file only one comment. It could not have
been unaware of the pendency of one or the other petition
because, being counsel for respondent in both cases, petitioner
is required to furnish it with a copy of the petition under pain of
dismissal of the petition for failure otherwise. 40
Besides, in G.R. 130068, it prefaces its discussions thus —
Incidentally, the Manila Pilots' Association (MPA), one of the
defendants-appellants in the case before the respondent Court
of Appeals, has taken a separate appeal from the said decision
to this Honorable Court, which was docketed as G.R. No.
130150 and entitled "Manila Pilots' Association, Petitioner,
versus Philippine Ports Authority and Far Eastern Shipping Co.,
Respondents." 41
Similarly, in G.R. No. 130150, it states —
Incidentally, respondent Far Eastern Shipping Co. (FESC) had
also taken an appeal from the said decision to this Honorable
Court, docketed as G.R. No. 130068, entitled "Far Eastern
Shipping Co. vs. Court of Appeals and Philippine Ports
Authority." 42
We find here a lackadaisical attitude and complacency on the
part of the OSG in the handling of its cases and an almost
reflexive propensity to move for countless extensions, as if to
test the patience of the Court, before favoring it with the timely
submission of required pleadings.
It must be emphasized that the Court can resolve cases only as
fast as the respective parties in a case file the necessary
pleadings. The OSG, by needlessly extending the pendency of
these cases through its numerous motions for extension, came
very close to exhausting this Court's forbearance and has
regrettably fallen short of its duties as the People's Tribune.
The OSG is reminded that just like other members of the Bar,
the canons under the Code of Professional Responsibility apply
with equal force on lawyers in government service in the
discharge of their official tasks. 43 These ethical duties are
rendered even more exacting as to them because, as

government counsel, they have the added duty to abide by the
policy of the State to promote a high standard of ethics in public
service. 44 Furthermore, it is incumbent upon the OSG, as part
of the government bureaucracy, to perform and discharge its
duties with the highest degree of professionalism, intelligence
and skill 45 and to extend prompt, courteous and adequate
service to the public. 46
Now, on the merits of the case. After a judicious examination of
the records of this case, the pleadings filed, and the evidence
presented by the parties in the two petitions, we find no cogent
reason to reverse and set aside the questioned decision. While
not entirely a case of first impression, we shall discuss the
issues seriatim and, correlatively by way of a judicial once-over,
inasmuch as the matters raised in both petitions beg for
validation and updating of well-worn maritime jurisprudence.
Thereby, we shall write finis to the endless finger-pointing in this
shipping mishap which has been stretched beyond the limits of
judicial tolerance.
The Port of Manila is within the Manila Pilotage District which is
under compulsory pilotage pursuant to Section 8, Article III of
Philippine Ports Authority Administrative Order No. 03-
85, 47 which provides that:
Sec. 8. Compulsor Pilotage Service. — For entering a harbor
and anchoring thereat, or passing through rivers or straits within
a pilotage district, as well as docking and undocking at any
pier/wharf, or shifting from one berth or another, every vessel
engaged in coastwise and foreign trade shall be under
compulsory pilotage. . . .
In case of compulsory pilotage, the respective duties and
responsibilities of the compulsory pilot and the master have
been specified by the same regulation in this wise:
Sec. 11. Control of vessels and liability for damage. — On
compulsory pilotage grounds, the Harbor Pilot providing the
service to a vessel shall be responsible for the damage caused
to a vessel or to life and property at ports due to his negligence
or fault. He can only be absolved from liability if the accident is
caused by force majeure or natural calamities provided he has
exercised prudence and extra diligence to prevent or minimize
damage.
The Master shall retain overall command of the vessel even on
pilotage grounds whereby he can countermand or overrule the
order or command of the Harbor Pilot on beard. In such event,
any damage caused to a vessel or to life and property at ports
by reason of the fault or negligence of the Master shall be the
responsibility and liability of the registered owner of the vessel
concerned without prejudice to recourse against said Master.
Such liability of the owner or Master of the vessel or its pilots
shall be determined by competent authority in appropriate
proceedings in the light of the facts and circumstances of each
particular case.
Sec. 32. Duties and responsibilities of the Pilot or Pilots'
Association. — The duties and responsibilities of the Harbor
Pilot shall be as follows:
xxx xxx xxx
8
f) a pilot shall be held responsible for the direction of a vessel
from the time he assumes his work as a pilot thereof until he
leaves it anchored or berthed safely; Provided, however, that his
responsibility shall cease at the moment the Master neglects or
refuses to carry out hisorder.
Customs Administrative Order No. 15-65 issued twenty years
earlier likewise provided in Chapter I thereof for the
responsibilities of pilots:
Par. XXXIX. — A Pilot shall be held responsible for the direction
of a vessel from the time he assumes control thereof until he
leaves it anchored free from shoal: Provided, That his
responsibility shall cease at the moment the master neglects or
refuses to carry out his instructions.
xxx xxx xxx
Par. XLIV. — Pilots shall properly and safely secure or anchor
vessels under their control when requested to do so by the
master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious error in
not holding MPA and Capt. Gavino solely responsible for the
damages cause to the pier. It avers that since the vessel was
under compulsory pilotage at the time with Capt. Gavino in
command and having exclusive control of the vessel during the
docking maneuvers, then the latter should be responsible for
damages caused to the pier. 48 It likewise holds the appellate
court in error for holding that the master of the ship, Capt.
Kabankov, did not exercise the required diligence demanded by
the circumstances. 49
We start our discussion of the successive issues bearing in mind
the evidentiary rule in American jurisprudence that there is a
presumption of fault against a moving vessel that strikes a
stationary object such as a dock or navigational aid. In admiralty,
this presumption does more than merely require the ship to go
forward and produce some evidence on the presumptive matter.
The moving vessel must show that it was without fault or that the
collision was occasioned by the fault of the stationary object or
was the result of inevitable accident. It has been held that such
vessel must exhaust every reasonable possibility which the
circumstances admit and show that in each, they did all that
reasonable care required. 50 In the absence of sufficient proof in
rebuttal, the presumption of fault attaches to a moving vessel
which collides with a fixed object and makes a prima facie case
of fault against the vessel. 51 Logic and experience support this
presumption:
The common sense behind the rule makes the burden a heavy
one. Such accidents simply do not occur in the ordinary course
of things unless the vessel has been mismanaged in some way.
It is nor sufficient for the respondent to produce witnesses who
testify that as soon as the danger became apparent everything
possible was done to avoid an accident. The question remains,
How then did the collision occur? The answer must be either
that, in spite of the testimony of the witnesses, what was done
was too little or too late or, if not, then the vessel was at fault for
being in a position in which an unavoidable collision would
occur. 52

The task, therefore, in these cases is to pinpoint who was
negligent — the master of the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed,
to conduct a vessel into or out of ports, or in certain waters. In a
broad sense, the term "pilot" includes both (1) those whose duty
it is to guide vessels into or out of ports, or in particular waters
and (2) those entrusted with the navigation of vessels on the
high seas. 53 However, the term "pilot" is more generally
understood as a person taken on board at a particular place for
the purpose of conducting a ship through a river, road or
channel, or from a port. 54
Under English and American authorities, generally speaking, the
pilot supersedes the master for the time being in the command
and navigation of the ship, and his orders must be obeyed in all
matters connected with her navigation. He becomes the
master pro hac vice and should give all directions as to speed,
course, stopping and reversing anchoring, towing and the like.
And when a licensed pilot is employed in a place where pilotage
is compulsory, it is his duty to insist on having effective control
of the vessel, or to decline to act as pilot. Under certain systems
of foreign law, the pilot does not take entire charge of the vessel,
but is deemed merely the adviser of the master, who retains
command and control of the navigation even in localities where
pilotage is compulsory. 55
It is quite common for states and localities to provide for
compulsory pilotage, and safety laws have been enacted
requiring vessels approaching their ports, with certain
exceptions, to take on board pilots duly licensed under local law.
The purpose of these laws is to create a body of seamen
thoroughly acquainted with the harbor, to pilot vessels seeking
to enter or depart, and thus protect life and property from the
dangers of navigation. 56
In line with such established doctrines, Chapter II of Customs
Administrative Order No. 15-65 prescribes the rules for
compulsory pilotage in the covered pilotage districts, among
which is the Manila Pilotage District,
viz. —
PARAGRAPH I. — Pilotage for entering a harbor and anchoring
thereat, as well as docking and undocking in any pier or shifting
from one berth to another shall be compulsory, except
Government vessels and vessels of foreign governments
entitled to courtesy, and other vessels engaged solely in river or
harbor work, or in a daily ferry service between ports which shall
be exempt from compulsory pilotage provisions of these
regulations: provided, however, that compulsory pilotage shall
not apply in pilotage districts whose optional pilotage is allowed
under these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV
Pavlodar into Berth 4 of the Manila International Port. Upon
assuming such office as compulsory pilot, Capt. Gavino is held
to the universally accepted high standards of care and diligence
required of a pilot, whereby he assumes to have skill and
knowledge in respect to navigation in the particular waters over
which his license extends superior to and more to be trusted
than that of the master. 57 A pilot 57 should have a thorough
knowledge of general and local regulations and physical
9
conditions affecting the vessel in his charge and the waters for
which he is licensed, such as a particular harbor or river.
He is not held to the highest possible degree of skill and care,
but must have and exercise the ordinary skill and care
demanded by the circumstances, and usually shown by an
expert in his profession. Under extraordinary circumstancesm, a
pilot must exercise extraordinary care. 58
In Atlee vs. The Northwesrern Union Packet Company. 59 Mr.
Justice Miller spelled out in great detail the duties of a pilot:
. . . (T)he pilot of a river steamer, like the harbor pilot, is selected
for his personal knowledge of the topography through which he
steers his vessel. In the long course of a thousand miles in one
of these rivers, he must be familiar with the appearance of the
shore on each side of the river as he goes along. Its banks,
towns, its landings, its houses and trees, are all landmarks by
which he steers his vessel. The compass is of little use to him.
He must know where the navigable channel is, in its relation to
all these external objects, especially in the night. He must also
be familiar with all dangers that are permanently located in the
course of the river, as sand-bars, snags, sunken rocks or trees
or abandoned vessels orbarges. All this he must know and
remember and avoid. To do this, he must be constantly informed
of the changes in the current of the river, of the sand-bars newly
made,of logs or snags, or other objects newly presented, against
which his vessel might be injured.
xxx xxx xxx
It may be said that this is exacting a very high order of ability in
a pilot. But when we consider the value of the lives and property
committed to their control, for in this they are absolute masters,
the high compensation they receive, the care which Congress
has taken to secure by rigid and frequent examinations and
renewal of licenses, this very class of skill, we do not think we
fix the standard too high.
Tested thereby, we affirm respondent court's finding that Capt.
Gavino failed to measure up to such strict standard of care and
diligence required of pilots in the performance of their duties.
Witness this testimony of Capt. Gavino:
Court: You have testified before that the reason why the vessel
bumped the pier was because the anchor was not released
immediately or as soon as you have given the order. Do you
remember having srated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to understand
that if that anchor was released immediately at the time you gave
the order, the incident would not have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my part
because there was a commotion between the officers who are
in charge of the dropping of the anchor and the captain. I could
not understand their language, it was in Russian, so I presumed
the anchor was not dropped on time.

Q So, you are not sure whether it was really dropped on time or
not?
A I am not sure, your Honor.
xxx xxx xxx
Q You are not even sure what could have caused the incident.
What factor could have caused the incident?
A Well, in this case now, because either the anchor was not
dropped on time or the anchor did not hold, that was the cause
of the incident, your Honor. 60
It is disconcertingly riddled with too much incertitude and
manifests a seeming indifference for the possibly injurious
consequences his commands as pilot may have. Prudence
required that he, as pilot, should have made sure that his
directions were promptly and strictly followed. As correctly noted
by the trial court —
Moreover, assuming that he did indeed give the command to
drop the anchor on time, as pilot he should have seen to it that
the order was carried out, and he could have done this in a
number of ways, one of which was to inspect the bow of the
vessel where the anchor mechanism was installed. Of course,
Captain Gavino makes reference to a commotion among the
crew members which supposedly caused the delay in the
execution of the command. This account was reflected in the
pilot's report prepared four hours later, but Capt. Kavankov,
while not admitting whether or not such a commotion occurred,
maintained that the command to drop anchor was followed
"immediately and precisely." Hence, the Court cannot give much
weight or consideration to this portion of Gavino's testimony." 61
An act may be negligent if it is done without the competence that
a reasonable person in the position of the actor would recognize
as necessary to prevent it from creating an unreasonable risk of
harm to another. 62Those who undertake any work calling for
special skills are required not only to exercise reasonable care
in what they do but also possess a standard minimum of special
knowledge and ability. 63
Every man who offers his services to another, and is employed,
assumes to exercise in the employment such skills he
possesses, with a reasonable degree of diligence. In all these
employments where peculiar skill is requisite, if one offers his
services he is understood as holding himself out to the public as
possessing the degree of skill commonly possessed by others
in the same employment, and if his pretensions are unfounded
he commits a species of fraud on every man who employs him
in reliance on his public profession. 64
Furthermore, there is an obligation on all persons to take the
care which, under ordinary circumstances of the case, a
reasonable and prudent man would take, and the omission of
that care constitutes negligence. 65Generally, the degree of care
required is graduated according to the danger a person or
property attendant upon the activity which the actor pursues or
the instrumentality which he uses. The greater the danger the
greater the degree of care required. What is ordinary under
extraordinary of conditions is dictated by those conditions;
10
extraordinary risk demands extraordinary care. Similarly, the
more imminent the danger, the higher the degree of care. 66
We give our imprimatur to the bases for the conclusion of the
Court of Appeals that Capt. Gavino was indeed negligent in the
performance of his duties:
xxx xxx xxx
. . . As can be gleaned from the logbook, Gavino ordered the left
anchor and two (2) shackles dropped at 8:30 o'clock in the
morning. He ordered the engines of the vessel stopped at 8:31
o'clock. By then,Gavino must have realized that the anchor did
not hit a hard object and was not clawed so as to reduce the
momentum of the vessel. In point of fact, the vessel continued
travelling towards the pier at the same speed. Gavino failed to
react, At 8:32 o'clock, the two (2) tugboats began to push the
stern part of the vessel from the port side bur the momentum of
the vessel was not contained. Still, Gavino did not react. He did
not even order the other anchor and two (2) more shackles
dropped to arrest the momentum of the vessel. Neither did he
order full-astern. It was only at 8:34 o'clock, or four (4) minutes,
after the anchor was dropped that Gavino reacted. But his
reaction was even (haphazard) because instead of arresting
fully the momentum of the vessel with the help of the tugboats,
Gavino ordered merely "half-astern". It took Gavino another
minute to order a "full-astern". By then, it was too late. The
vessel's momentum could no longer be arrested and, barely a
minute thereafter, the bow of the vessel hit the apron of the pier.
Patently, Gavino miscalculated. He failed to react and undertake
adequate measures to arrest fully the momentum of the vessel
after the anchor failed to claw to the seabed. When he reacted,
the same was even (haphazard). Gavino failed to reckon the
bulk of the vessel, its size and its cargo. He erroneously believed
that only one (1) anchor would suffice and even when the anchor
failed to claw into the seabed or against a hard object in the
seabed, Gavino failed to order the other anchor dropped
immediately. His claim that the anchor was dropped when the
vessel was only 1,000 feet from the pier is but a belated attempt
to extricate himself from the quagmire of his own insouciance
and negligence. In sum, then, Appellants' claim that the incident
was caused by "force majeure" is barren of factual basis.
xxx xxx xxx
The harbor pilots are especially trained for this job. In the
Philippines, one may not be a harbor pilot unless he passed the
required examination and training conducted then by the Bureau
of Custom, under Customs Administrative Order No. 15-65, now
under the Philippine Ports Authority under PPA Administrative
Order 63-85, Paragraph XXXIX of the Customs Administrative
Order No. 15-65 provides that "the pilot shall be held responsible
for the direction of the vessel from the time he assumes control
thereof, until he leaves it anchored free from shoal: Provided,
that his responsibility shall cease at the.moment the master
neglects or refuse(s) to carry out his instructions." The overall
direction regarding the procedure for docking and undocking the
vessel emanates from the harbor pilot. In the present recourse,
Gavino failed to live up to his responsibilities and exercise
reasonable care or that degree of care required by the
exigencies of the occasion. Failure on his part to exercise the
degree of care demanded by the circumstances is negligence

(Reese versus Philadelphia & RR Co. 239 US 363, 60 L ed. 384,
57 Am Jur, 2d page 418). 67
This affirms the findings of the trial court regarding Capt.
Gavino's negligence:
This discussion should not however, divert the court from the
fact that negligence in manuevering the vessel must be
attributed to Capt. Senen Gavino. He was an experienced pilot
and by this time should have long familiarized himself with the
depth of the port and the distance he could keep between the
vessel and port in order to berth safely. 68
The negligence on the part of Capt. Gavino is evident; but Capt.
Kabancov is no less responsible for the allision. His
unconcerned lethargy as master of the ship in the face of
troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a pilot is in
sole command of the ship 69 and supersedes the master for the
time being in the command and navigation of a ship and that he
becomes master pro hac vice of a vessel piloted by him, 70 there
is overwhelming authority to the effect that the master does not
surrender his vessel to the pilot and the pilot is not the master.
The master is still in command of the vessel notwithstanding the
presence of a pilot. There are occasions when the master may
and should interfere and even displace the pilot, as when the
pilot is obviously incompetent or intoxicated and the
circumstances may require the master to displace a compulsory
pilot because of incompetency or physical incapacity. If,
however, the master does nor observe that a compulsory pilot is
incompetent or physically incapacitated, the master is justified in
relying on the pilot, but not blindly. 71
The master is not wholly absolved from his duties while a pilot is
on board his vessel, and may advise with or offer suggestions to
him. He is still in command of the vessel, except so far as her
navigation is concerned, and must cause the ordinary work of
the vessel to be properly carried on and the usual precaution
taken. Thus, in particular, he is bound to see that there is
sufficient watch on deck, and that the men are attentive to their
duties, also that engines are stopped, towlines cast off, and the
anchors clear and ready to go at the pilot's order. 72
A perusal of Capt. Kabankov's testimony makes it apparent that
he was remiss in the discharge of his duties as master of the
ship, leaving the entire docking procedure up to the pilot, instead
of maintaining watchful vigilance over this risky maneuver:
Q Will you please tell us whether you have the right to intervene
in docking of your ship in the harbor?
A No sir, I have no right to intervene in time of docking, only in
case there is imminent danger to the vessel and to the pier.
Q Did you ever intervene during the time that your ship was
being docked by Capt. Gavino?
A No sir, I did not intervene at the time when the pilot was
docking my ship.
Q Up to the time it was actually docked at the pier, is that
correct?
11
A No sir, I did not intervene up to the very moment when the
vessel was docked.
xxx xxx xxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there anything
unusual that happened during the docking?
A Yes sir, our ship touched ihe pier and the pier was damaged.
Court (to the witness)
Q When you said touched the pier, are you leading the court to
understand that your ship bumped the pier?
A I believe that my vessel only touched the pier but the impact
was very weak.
Q Do you know whether the pier was damaged as a result of
that slight or weak impact?
A Yes sir, after the pier was damaged.
xxx xxx xxx
Q Being most concerned with the safety of your vessel, in the
maneuvering of your vessel to the port, did you observe anything
irregular in the maneuvering by Capt. Gavino at the time he was
trying to cause the vessel to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver of the
ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court to
understand that there was nothing irregular in the docking of the
ship?
A Yes sir, during the initial period of the docking, there was
nothing unusual that happened.
Q What about in the last portion of the docking of the ship, was
there anything unusual or abnormal that happened?
A None Your Honor, I believe that Capt. Gavino thought that the
anchor could keep or hold the vessel.
Q You want us to understand, Mr. Witness, that the dropping of
the anchor of the vessel was nor timely?
A I don't know the depth of this port but I think, if the anchor was
dropped earlier and with more shackles, there could not have
been an incident.
Q So you could not precisely tell the court that the dropping of
the anchor was timery because you are not well aware of the
seabed, is that correct?
A Yes sir, that is right.
xxx xxx xxx

Q Alright, Capt. Kavankov, did you come to know later whether
the anchor held its ground so much so that the vessel could not
travel?
A It is difficult for me to say definitely. I believe that the anchor
did not hold the ship.
Q You mean you don't know whether the anchor blades stuck to
the ground to stop the ship from further moving?
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold the vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold the
ship, did you not make any protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is
correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether the
2 shackles were also dropped to hold the ship?
A No sir, at the beginning, I did not doubt it because I believe
Capt. Gavino to be an experienced pilot and he should be more
aware as to the depths of the harbor and the ground and I was
confident in his actions.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of the
vessel before the inicident happened, were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from that
point of view?
A That is right.
Q Whatever the piler can read from the panel of the bridge, you
also could read, is that correct?
A What is the meaning of panel?
Q All indications necessary for men on the bridge to be informed
of the movements of the ship?
A That is right.
Q And whatever sound the captain . . . Capt. Gavino would hear
from the bridge, you could also hear?
A That is right.
12
Q Now, you said that when the command to lower the anchor
was given, it was obeyed, is that right?
A This command was executed by the third mate and boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you said that you did
not intervene with the duties of the pilot and that, in your opinion,
you can only intervene if the ship is placed in imminent danger,
is that correct?
A That is right, I did say that.
Q In your observation before the incident actually happened, did
you observe whether or not the ship, before the actual incident,
the ship was placed in imminent danger?
A No sir, I did not observe.
Q By that answer, are you leading the court to understand that
because you did not intervene and because you believed that it
was your duty to intervene when the vessel is placed in imminent
danger to which you did not observe any imminent danger
thereof, you have not intervened in any manner to the command
of the pilot?
A That is right, sir.
xxx xxx xxx
Q Assuminp that you disagreed with the pilot regarding the step
being taken by the pilot in maneuvering the vessel, whose
command will prevail, in case of imminent danger to the vessel?
A I did nor consider the situation as having an imminent danger.
I believed that the vessel will dock alongside the pier.
Q You want us to understand that you did not see an imminent
danger to your ship, is that what you mean?
A Yes sir, up to the very last moment, I believed that there was
no imminent danger.
Q Because of that, did you ever intervene in the command of the
pilot?
A Yes sir, I did not intervene because I believed that the
command of the pilot to be correct.
Solicitor Abad (to the witness)
Q As a captain of M/V Pavlodar, you consider docking
maneuvers a serious matter, is it not?
A Yes sir, that is right.
Q Since it affects not only the safety of the port or pier, but also
the safety of the vessel and the cargo, is it not?
A That is right.
Q So that, I assume that you were watching Capt. Gavino very
closely at the time he was making his commands?
A I was close to him, I was hearing his command and being
executed.

Q And that you were also alert for any possible mistakes he
might commit in the maneuvering of the vessel?
A Yes sir, that is right.
Q But at no time during the maneuver did you issue order
contrary to the orders Capt. Gavino made?
A No sir.
Q So that you were in full accord with all of Capt. Gavino's
orders?
A Yes sir.
Q Because, otherwise, you would have issued order that would
supersede his own order?
A In that case, I should t,ke him away from his command or
remove the command from him.
Court (to the witness)
Q You were in full accord with the steps being taken by Capt.
Gavino because you relied on his knowledge, on his familiarity
of the seabed and shoals and other surroundings or conditions
under the sea, is that correct?
A Yes sir, that is right.
xxx xxx xxx
Solicitor Abad (to the witness)
Q And so after the anchors were ordered dropped and they did
not take hold of the seabed, you were alerted that there was
danger already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was supposed
to take hold of the bottom and it did not, there was no danger to
the ship?
A Yes sir, because the anchor dragged on the ground later.
Q And after a few moments when the anchor should have taken
hold the seabed bur not done (sic), as you expected, you already
were alerted that there was danger to the ship, is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert vou assumed was the ordinary alertness that
you have for normal docking?
A Yes sir, I mean that it was usual condition of any man in time
of docking to be alert.
Q And that is the same alertness when the anchor did not hold
onto the ground, is that correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor will
hold the ground.
13
Q Since, as you said that you agreed all the while with the orders
of Capt. Gavino, you also therefore agreed with him in his failure
to take necessary precaution against the eventuality that the
anchor will not hold as expected?
Atty. Del Rosario:
May I ask that the question . . .
Solicitor Abad:
Never mind, I will reform the question.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did not hold
the ground as expected?
A Yes sir, that is my opinion. 73
Further, on redirect examination, Capt. Kabankov fortified his
apathetic assessment of the situation:
Q Now, after the anchor was dropped, was there any point in
time that you felt that the vessel was in imminent danger.
A No, at that time, the vessel was not in imminent, danger, sir. 74
This cavalier appraisal of the event by Capt. Kabankov is
disturbingly antipodal to Capt. Gavino's anxious assessment of
the situation:
Q When a pilot is on board a vessel, it is the piler's command
which should be followed at that moment until the vessel is, or
goes to port or reaches port?
A Yes, your Honor, but it does not take away from the Captain
his prerogative to countermand the pilot.
Q In what way?
A In any case, which he thinks the pilot is not maneuvering
correctly, the Captain always has the prerogative to
countermand the pilot's order.
Q But insofar as competence, efficiency and functional
knowledee of the seabed which are vital or decisive in the safety
(sic) bringing of a vessel to the port, he is not competent?
A Yes, your Honor. That is why they hire a pilot in an advisory
capacity, but still, the safety of the vessel rest(s) upon the
Captain, the Master of the vessel.
Q In this case, there was not a disagreement between you and
the Captain of the vessel in the bringing of the vessel to port?
A No, your Honor.
Court:
May proceed.

Atty. Catris:
In fact, the Master of the vessel testified here that he was all
along in conformity with the orders you, gave to him, and, as
matter of fact, as he said, he obeyed all your orders. Can you
tell, if in the course of giving such normal orders for the saf(e)
docking of the MV Pavlodar, do you remember of any instance
that the Master of the vessel did not obey your command for the
safety docking of the MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that there was no
disagreement insofar as the bringing of the vessel safely to the
port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do you
remember of a time during the course of the docking that the MV
Pavlodar was in imminent danger of bumping the pier?
A When we were about more than one thousand meters from
the pier, I think, the anchor was not holding, so I immediately
ordered to push the bow at a fourth quarter, at the back of the
vessel in order to swing the bow away from the pier and at the
same time, I ordered for a full astern of the engine. 75
These conflicting reactions can only imply, at the very least,
unmindful disregard or, worse, neglectful relinquishment of duty
by the shipmaster, tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been charged with
the task of docking the vessel in the berthing space, it is
undisputed that the master of the vessel had the corresponding
duty to countermand any of the orders made by the pilot, and
even maneuver the vessel himself, in case of imminent danger
to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all
throughour the man(eu)vering procedures he did not notice
anything was going wrong, and even observed that the order
given to drop the anchor was done at the proper time. He even
ventured the opinion that the accident occurred because the
anchor failed to take hold but that this did not alarm him
because.there was still time to drop a second anchor.
Under normal circumstances, the abovementioned facts would
have caused the master of a vessel to take charge of the
situation and see to the man(eu)vering of the vessel himself.
Instead, Capt. Kavankov chose to rely blindly upon his pilot, who
by this time was proven ill-equipped to cope with the situation.
xxx xxx xxx
It is apparent that Gavino was negligent but Far Eastern's
employee Capt. Kavankov was no lesss responsible for as
master of the vessel he stood by the pilot during the
man(eu)vering procedures and was privy to every move the
14
latter made, as well as the vessel's response to each of the
commands. His choice to rely blindly upon the pilot's skills, to
the point that despite being appraised of a notice of alert he
continued to relinquish control of the vessel to Gavino, shows
indubitably that he was not performing his duties with the
diligence required of him and therefore may be charged with
negligence along with defend;int Gavino. 76
As correctly affirmed by the Court of Appeals —
We are in full accord with the findings and disquisitions of the
Court a quo.
In the present recourse, Captain Viktor Kavankov had been a
mariner for thirty-two years before the incident. When Gavino
was (in) the command of the vessel, Kavankov was beside
Gavino, relaying the commands or orders of Gavino to the
crewmembers-officers of the vessel concerned. He was thus
fully aware of the docking maneuvers and procedure Gavino
undertook to dock the vessel. Irrefragably, Kavankov was fully
aware of the bulk and size of the vessel and its cargo as well as
the weight of the vessel. Kavankov categorically admitted that,
when the anchor and two (2) shackles were dropped to the sea
floor, the claws of the anchor did not hitch on to any hard object
in the seabed. The momentum of the vessel was not arrested.
The use of the two (2) tugboats was insufficient. The momentum
of the vessel, although a little bit arrested, continued (sic) the
vessel going straightforward with its bow towards the port
(Exhibit "A-1 ). There was thus a need for the vessel to move
"full-astern" and to drop the other anchor with another shackle
or two (2), for the vessel to avoid hitting the pier. Kavankov
refused to act even as Gavino failed to act. Even as Gavino gave
mere "half-astern" order, Kavankov supinely stood by. The
vessel was already about twenty (20) meters away from the pier
when Gavino gave the "full-astern" order. Even then, Kavankov
did nothing to prevent the vessel from hitting the pier simply
because he relied on the competence and plan of Gavino. While
the "full-astern'' maneuver momentarily arrested the momentum
of the vessel, it was, by then, too late. All along, Kavankov stood
supinely beside Gavino, doing nothing but relay the commands
of Gavino. Inscrutably, then, Kavankov was negligent.
xxx xxx xxx
The stark incompetence of Kavankov is competent evidence to
prove the unseaworthiness of the vessel. It has been held that
the incompetence of the navigator, the master of the vessel or
its crew makes the vessel unseaworthy (Tug Ocean Prince
versus United States of America, 584 F. 2nd, page 1151).
Hence, the Appellant FESC is likewise liable for the damage
sustained by the Appellee. 77
We find strong and well-reasoned support in time-tested
American maritime jurisprudence, on which much of our laws
and jurisprudence on the matter are based, for the conclusions
of the Court of Appeals adjudging both Capt. Gavino and Capt.
Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared, through Mr.
Justice Swayne, in The Steamship China vs. Walsh, 78 that it is
the duty of the master to interfere in cases of the pilot's
intoxication or manifest incapacity, in cases of danger which he
does not foresee, and in all cases of great necessity. The master

has the same power to displace the pilot that he has to remove
any subordinate officer of the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice
Brown, emphatically ruled that:
Nor are rye satisfied with the conduct of the master in leaving
the pilot in sole charge of the vessel. While the pilot doubtless
supersedes the master for the time being in the command and
navigation of the ship, and his orders must be obeyed in all
matters connected with her navigation, the master is not wholly
absolved from his duties while the pilot is on board, and may
advise with him, and even displace him in case he is intoxicated
or manifestly incompetent. He is still in command of the vessel,
except so far as her navigation is concerned, and bound to see
that there is a sufficient watch on deck, and that the men are
attentive to their duties.
. . . (N)orwithstanding the pilot has charge, it is the duty of the
master to prevent accident, and not to abandon the vessel
entirely to the pilot; but that there are certain duties he has to
discharge (notwithstanding there is a pilot on board) for the
benefit of the owners. . . . that in well conducted ships the master
does not regard the presence of a duly licensed pilot in
compulsory pilot waters as freeing him from every, obligation to
attend to the safety of the vessel; but that, while the master sees
that his officers and crew duly attend to the pilot's orders, he
himself is bound to keep a vigilant eye on the navigation of the
vessel, and, when exceptional circumstances exist, not only to
urge upon the pilot to use every precaution, but to insist upon
such being taken. 79 (Italics for emphasis.)
In Jure vs. United Fruit Co., 80 which, like the present petitions,
involved compulsory pilotage, with a similar scenario where at
and prior to the time of injury, the vessel was in the charge of a
pilot with the master on the bridge of the vessel beside said pilot,
the court therein ruled:
The authority of the master of a vessel is not in complete
abeyance while a pilot, who is required by law to be accepted,
is in discharge of his functions. . . . It is the duty of the master to
interfere in cases of the pilot's intoxication or manifest
incapacity, in cases of danger which he does not foresee, and in
all cases of great necessity. The master has the same power to
displace the pilot that he has to remove any subordinate officer
of the vessel. He may exercise it, or not, according to his
discretion. There was evidence to support findings that piaintiff's
injury was due to the negligent operation of the Atenas, and that
the master of that vessel was negligent in failing to take action
to avoid endangering a vessel situated as the City of Canton was
and persons or property thereon.
A phase of the evidence furnished support for the inferences . .
. that he negligently failed to suggest to the pilot the danger
which was disclosed, and means of avoiding such danger; and
that the master's negligence in failing to give timelt admonition
to the pilot proximately contributed to the injury complained of.
We are of opinion that the evidence mentioned tended to prove
conduct of the pilot, known to the master, giving rise to a case
of danger or great necessity, calling for the intervention of the
master. A master of a vessel is not without fault in acquiescing
in canduct of a pilot which involves apparent and avoidable
danger, whether such danger is to the vessel upon which the
15
pilot is, or to another vessel, or persons or property thereon or
on shore. (Emphasis ours.)
Still in another case involving a nearly identical setting, the
captain of a vessel alongside the compulsory pilot was deemed
to be negligent, since, in the words of the court, "he was in a
position to exercise his superior authority if he had deemed the
speed excessive on the occasion in question. I think it
was clearly negligent of him not to have recognized the
danger to any craft moored at Gravell Dock and that he should
have directed the pilot to reduce his speed as required by the
local governmental regulations. His failure amounted to
negligence and renders the respondent liable." 81 (Emphasis
supplied.) Though a compulsory pilot might be regarded as an
independent contractor, he is at all times subject to the ultimate
control of the ship's master. 82
In sum, where a compulsory pilot is in charge of a ship, the
master being required to permit him to navigate it, if the master
observes that the pilot is incompetent or physically incapable,
then it is the dury of the master to refuse to permit the pilot to
act. But if no such reasons are present, then the master is
justified in relying upon the pilot, but not blindly. Under the
circumstances of this case, if a situation arose where the master,
exercising that reasonable vigilance which the master of a ship
should exercise, observed, or should have observed, that the
pilot was so navigating the vessel that she was going, or was
likely to go, into danger, and there was in the exercise of
reasonable care and vigilance an opportunity for the master to
intervene so as to save the ship from danger, the master should
have acted accordingly. 83 The master of a vessel must exercise
a degree of vigilance commensurate with the circumstances. 84
Inasmuch as the matter of negligence is a question of fact, 85 we
defer to the findings of the trial court, especially as this is
affirmed by the Court of Appeals. 86 But even beyond that, our
own evaluation is that Capt. Kabankov's shared liability is due
mainly to the fact that he failed to act when the perilous situation
should have spurred him into quick and decisive action as
master of the ship. In the face of imminent or actual danger, he
did not have to wait for the happenstance to occur before
countermanding or overruling the pilot. By his own admission,
Capt. Kabankov concurred with Capt. Gavino's decisions, and
this is precisely the reason why he decided not to countermand
any of the latter's orders. Inasmuch as both lower courts found
Capt. Gavino negligent, by expressing full agreement therewith
Capt. Kabankov was just as negligent as Capt. Gavino.
In general, a pilot is personally liable for damages caused by his
own negligence or default to the owners of the vessel, and to
third parties for damages sustained in a collision. Such
negligence of the pilot in the performance of duty constitutes a
maritime tort. 87 At common law, a shipowner is not liable for
injuries inflicted exclusively by the negligence of a pilot accepted
by a vessel compulsorily. 88 The exemption from liability for such
negligence shall apply if the pilot is actually in charge and solely
in fault. Since, a pilot is responsible only for his own personal
negligence, he cannot be held accountable for damages
proximately caused by the default of others, 89 or, if there be
anything which concurred with the fault of the pilot in producing
the accident, the vessel master and owners are liable.

Since the colliding vessel is prima facie responsible, the burden
of proof is upon the party claiming benefit of the exemption from
liability. It must be shown affirmatively that the pilot was at fault,
and that there was no fault on the part of the officers or crew,
which might have been conducive to the damage. The fact that
the law compelled the master to take the pilot does not
exonerate the vessel from liability. The parties who suffer are
entitled to have their remedy against the vessel that occasioned
the damage, and are not under necessity to look to the pilot from
whom redress is not always had for compensation. The owners
of the vessel are responsible to the injured party for the acts of
the pilot, and they must be left to recover the amount as well as
they can against him. It cannot be maintained that the
circumstance of having a pilot on board, and acting in conformity
to his directions operate as a discharge of responsibility of the
owners. 90Except insofar as their liability is limited or exempted
by statute, the vessel or her owner are liable for all damages
caused by the negligence or other wrongs of the owners or those
in charge of the vessel. Where the pilot of a vessel is not a
compulsory one in the sense that the owner or master of the
vessel are bound to accept him, but is employed voluntarily, the
owners of the vessel are, all the more, liable for his negligent
act. 91
In the United States, the owners of a vessel are not personally
liable for the negligent acts of a compulsory pilot, but by
admiralty law, the fault or negligence of a compulsory pilot is
imputable to the vessel and it may be held liable therefor in rem.
Where, however, by the provisions of the statute the pilot is
compulsory only in the sense that his fee must be paid, and is
not in compulsory charge of the vessel, there is no exemption
from liability. Even though the pilot is compulsory, if his
negligence was not the sole cause of the injury, but the
negligence of the master or crew contributed thereto, the owners
are liable. 92 But the liability of the ship in rem does not release
the pilot from the consequences of his own negligence. 93 The
rationale for this rule is that the master is not entirely absolved
of responsibility with respect to navigation when a compulsory
pilot is in charge. 94
By way of validation and in light of the aforecited guidepost
rulings in American maritime cases, we declare that our rulings
during the early years of this century in City of Manila vs.
Gambe, 95 China Navigation Co., Ltd. vs. Vidal, 96 and Yap Tica
& Co. vs. Anderson, et al. 97 have withstood the proverbial test
of time and remain good and relevant case law to this day.
City of Manila stands for the doctrine that the pilot who was in
command and complete control of a vessel, and not the owners,
must be held responsible for an accident which was solely the
result of the mistake of the pilot in not giving proper orders, and
which did not result from the failure of the owners to equip the
vessel with the most modern and improved machinery. In China
Navigation Co., the pilot deviated from the ordinary and safe
course, without heeding the warnings of the ship captain. It was
this careless deviation that caused the vessel to collide with a
pinnacle rock which, though uncharted, was known to pilots and
local navigators. Obviously, the captain was blameless. It was
the negligence of the pilot alone which was the proximate cause
of the collision. The Court could not but then rule that —
16
The pilot in the case at bar having deviated from the usual and
ordinary course followed by navigators in passing through the
strait in question, without a substantial reason, was guilty of
negligence, and that negligence having been the proximate
cause of the damages, he is liable for such damages as usually
and naturally flow therefrom. . . .
. . . (T)he defendant should have known of the existence and
location of the rock upon which the vessel struck while under his
control and management. . . . .
Consistent with the pronouncements in these two earlier cases,
but on a slightly different tack, the Court in Yap Tico & Co.
exonerated the pilot from liability for the accident where the
orders of the pilot in the handling of the ship were disregarded
by the officers and crew of the ship. According to the Court, a
pilot is ". . . responsible for a full knowledge of the channel and
the navigation only so far as he can accomplish it through the
officers and crew of the ship, and I don't see chat he can be held
responsible for damage when the evidence shows, as it does in
this case, that the officers and crew of the ship failed to obey his
orders." Nonetheless, it is possible for a compulsory pilot and
the master of the vessel to be concurrently negligent and thus
share the blame for the resulting damage as joint
tortfeasors, 98 but only under the circumstances obtaining in and
demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order to
render a person liable need not be the sole cause of an injury. It
is sufficient that his negligence, concurring with one or more
efficient causes other than piaintiff's, is the proximate cause of
the injury. Accordingly, where several causes combine to
produce injuries, a person is not relieved from liability because
he is responsible for only one of them, it being sufficient that the
negligence of the person charged with injury is an efficient cause
without which the injury would not have resulted to as great an
extent, and that such cause is not attributable to the person
injured. It is no defense to one of the concurrent tortfeasors that
the injury would not have resulted from his negligence alone,
without the negligence or wrongful acts of the other concurrent
rortfeasor. 99 Where several causes producing an injury are
concurrent and each is an efficient cause without which the
injury would not have happened, the injury may be attributed to
all or any of the causes and recovery may be had against any or
all of the responsible persons although under the circumstances
of the case, it may appear that one of them was more culpable,
and that the duty owed by them to the injured person was not
the same. No actor's negligence ceases to be a proximate cause
merely because it does not exceed the negligence of other
actors. Each wrongdoer is responsible for the entire result and
is liable as though his acts were the sole cause of the injury. 100
There is no contribution between joint tortfeasors whose liability
is solidary since both of them are liable for the total damage.
Where the concurrent or successive negligent acts or omissions
of two or more persons, although acting independently, are in
combination the direct and proximate cause of a single injury to
a third person, it is impossible to determine in what proportion
each contributed to the injury and either of them is responsible
for the whole injury. Where their concurring negligence resulted
in injury or damage to a third party, they become joint tortfeasors

and are solidarily liable for the resulting damage under Article
2194 101 of the Civil Code. 102
As for the amount of damages awarded by the trial court, we find
the same to be reasonable. The testimony of Mr. Pascual Barral,
witness for PPA, on cross and redirect examination, appears to
be grounded on practical considerations:
Q So that the cost of the two additional piles as well as the (two)
square meters is already included in this P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent only for
the six piles that was damaged as well as the corresponding two
piles.
A The area was corresponding, was increased by almost two in
the actual payment. That was why the contract was decreased,
the real amount was P1,124,627.40 and the final one is
P1,300,999.77.
Q Yes, but that P1,300,999.77 included the additional two new
posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place in
1980 and you started the repair and reconstruction in 1982, that
took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing damage
in 1980 was aggravated for the 2 year period that the damage
portion was not repaired?
A I don't think so because that area was at once marked and no
vehicles can park, it was closed.
Q Even if or even natural elements cannot affect the damage?
A Cannot, sir.
xxx xxx xxx
Q You said in the cross-examination that there were six piles
damaged by the accident, but that in the reconstruction of the
pier, PPA drove and constructed 8 piles. Will you explain to us
why there was change in the number of piles from the original
number?
A In piers where the piles are withdrawn or pulled out, you
cannot re-drive or drive piles at the same point. You have to
redesign the driving of the piles. We cannot drive the piles at the
17
same point where the piles are broken or damaged or pulled out.
We have to redesign, and you will note that in the reconstruction,
we redesigned such that it necessitated 8 plies.
Q Why not, why could you not drive the same number of piles
and on the same spot?
A The original location was already disturbed. We cannot get
required bearing capacity. The area is already disturbed.
Q Nonetheless, if you drove the original number of piles, six, on
different places, would not that have sustained the same load?
A It will not suffice, sir. 103
We quote the findings of the lower court with approval.
With regards to the amount of damages that is to be awarded to
plaintiff, the Court finds that the amount of P1,053,300.00 is
justified. Firstly, the doctrine of res ipsa loquitur best expounded
upon in the landmark case of Republic vs. Luzon Stevedoring
Corp. (21 SCRA 279) establishes the presumption that in the
ordinary course of events the ramming of the dock would not
have occurred if proper care was used.
Secondly, the various estimates and plans justify the cost of the
port construction price. The new structure constructed not only
replaced the damaged one but was built of stronger materials to
forestall the possibility of any similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an award
of P1,053,300.00 which represents actual damages caused by
the damage to Berth 4 of the Manila International Port. Co-
defendants Far Eastern Shipping, Capt. Senen Gavino and
Manila Pilots Association are solidariiy liable to pay this amount
to plaintiff. 104
The Solicitor General rightly commented that the adjudicated
amount of damages represents the proportional cost of repair
and rehabilitation of the damaged section of the pier. 105
Except insofar as their liability is limited or exempted by statute,
the vessel or her owners are liable for all damages caused by
the negligence or other wrongs of the owners or those in charge
of the vessel. As a general rule, the owners or those in
possession and control of a vessel and the vessel are liable for
all natural and proximate damages caused to persons or
property by reason of her negligent management or
navigation. 106
FESC's imputation of PPA's failure to provide a safe and reliable
berthing place is obtuse, not only because it appears to be a
mere afterthought, being tardily raised only in this petition, but
also because there is no allegation or evidence on record about
Berth No. 4 being unsafe and unreliable, although perhaps it is
a modest pier by international standards. There was, therefore,
no error on the part of the Court of Appeals in dismissing FESC's
counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court of Appeals
erred in holding MPA jointly and solidarily liable with its member
pilot. Capt. Gavino, in the absence of employer-employee
relationship and in applying Customs Administrative Order No.

15-65, as basis for the adjudged solidary liability of MPA and
Capt. Gavino.
The pertinent provisions in Chapter I of Customs Administrative
Order No. 15-65 are:
PAR. XXVII. — In all pilotage districts where pilotage is
compulsory, there shall be created and maintained by the pilots
or pilots' association, in the manner hereinafter prescribed, a
reserve fund equal to P1,000.00 for each pilot thereof for the
purpose of paying claims for damages to vessels or property
caused through acts or omissions of its members while rendered
in compulsory pilotage service. In Manila, the reserve fund shall
be P2,000.00 for each pilot.
PAR. XXVIII. — A pilots' association shall not be liable under
these regulations for damage to any vessel, or other property,
resulting from acts of a member of an association in the actual
performance of his duty for a greater amount than seventy-five
per centum (75%) of its prescribed reserve fund; it being
understood that if the association is held liable for an amount
greater than the amount above-stated, the excess shall be paid
by the personal funds of the member concerned.
PAR. XXXI. — If a payment is made from the reserve fund of an
association on account of damages caused by a member
thereof, and he shall have been found at fault, such member
shall reimburse the association in the amount so paid as soon
as practicable; and for this purpose, not less than twenty-five per
centum of his dividends shall be retained each month until the
full amount has been returned to the reserve fund.
PAR. XXXIV. — Nothing in these regulations shall relieve any
pilots' association or members thereof, individually or
collectively, from civil responsibility for damages to life or
property resulting from the acts of members in the performance
of their duties.
Correlatively, the relevant provisions of PPA Administrative
Order No. 03-85, which timery amended this applicable maritime
regulation, state:
Art. IV
Sec. 17. Pilots' Association — The Pilots in a Pilotage District
shall organize themselves into a Pilots' Association or firm, the
members of which shall promulgate their own By-Laws not in
conflict with the rules and regulations promulgated by the
Authority. These By-Laws shall be submitted not later than one
(1) month after the organization of the Pilots' Association for
approval by the General Manager of the Authority. Subsequent
amendments thereto shall likewise be submitted for approval.
Sec. 25. Indemnity Insurance and Reserve Fund —
a) Each Pilots' Association shall collectively insure its
membership at the rate of P50,000.00 each member to cover in
whole or in part any liability arising from any accident resulting
in damage to vessel(s), port facilities and other properties and/or
injury to persons or death which any member may have caused
in the course of his performance of pilotage duties. . . . .
b) The Pilotage Association shall likewise set up and maintain a
reserve fund which shall answer for any part of the liability
18
referred to in the immediately preceding paragraph which is left
unsatisfied by the insurance proceeds, in the following manner:
1) Each pilot in the Association shall contribute from his own
account an amount of P4,000.00 (P6,000.00 in the Manila
Pilotage District) to the reserve fund. This fund shall not be
considered part of the capital of the Association nor charged as
an expense thereof.
2) Seventy-five percent (75 %) of the reserve fund shall be set
aside for use in the payment of damages referred to above
incurred in the actual performance of pilots' duties and the
excess shall be paid from the personal funds of the member
concerned.
xxx xxx xxx
5) If payment is made from the reserve fund of an Association
on account of damage caused by a member thereof who is found
at fault, he shall reimburse the Association in the amount so paid
as soon as practicable; and for this purpose, not less than
twenty-five percentum (25 %) of his dividend shall be retained
each month until the full amount has been returned to the
reserve fund. Thereafter, the pilot involved shall be entitled to
his full dividend.
6) When the reimbursement has been completed as prescribed
in the preceding paragraph, the ten percentum (10%) and the
interest withheld from the shares of the other pilots in
accordance with paragraph (4) hereof shall be returned to them.
c) Liability of Pilots' Association — Nothing in these regulations
shall relieve any Pilots' Association or members thereof,
individually or collectively, from any civil, administrative and/or
criminal responsibility for damages to life or property resulting
from the individual acts of its members as well as those of the
Association's employees and crew in the performance of their
duties.
The Court of Appeals, while affirming the trial court's finding of
solidary liability on the part of FESC, MPA and Capt. Gavino,
correctly based MPA' s liability not on the concept of employer-
employee relationship between Capt. Gavino and itself, but on
the provisions of Customs Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and
disquisitions of the Court a quo, the Appellant Gavino was not
and has never been an employee of the MPA but was only a
member thereof. The Court a quo, it is noteworthy, did not state
the factual basis on which it anchored its finding that Gavino was
the employee of MPA. We are in accord with MPA's pose. Case
law teaches Us that, for an employer-employee relationship to
exist, the confluence of the following elements must be
established: (1) selection and engagement of employees; (2) the
payment of wages; (3) the power of dismissal; (4) the employer's
power to control the employees with respect to the means and
method by which the work is to be performed (Ruga versus
NLRC, 181 SCRA 266).
xxx xxx xxx
The liability of MPA for damages is not anchored on Article 2180
of the New Civil Code as erroneously found and declared by the
Court a quo but under the provisions of Customs Administrative

Order No. 15-65, supra, in tandem with the by-laws of the
MPA. 107
There being no employer-employee relationship, clearly Article
2180 108 of the Civil Code is inapplicable since there is no
vicarious liability of an employer to speak of. It is so stated in
American law, as follows:
The well established rule is that pilot associations are immune
to vicarious liability for the tort of their members. They are not
the employer of their members and exercise no control over
them once they take the helm of the vessel. They are also not
partnerships because the members do not function as agents
for the association or for each other. Pilots' associations are also
not liable for negligently assuring the competence of their
members because as professional associations they made no
guarantee of the professional conduct of their members to the
general public. 109
Where under local statutes and regulations, pilot associations
lack the necessary legal incidents of responsibility, they have
been held not liable for damages caused by the default of a
member pilot. 110 Whether or not the members of a pilots'
association are in legal effect a copartnership depends wholly
on the powers and duties of the members in relation to one
another under the provisions of the governing statutes and
regulations. The relation of a pilot to his association is not that
of a servant to the master, but of an associate assisting and
participating in a common purpose. Ultimately, the rights and
liabilities between a pilots' association and an individual member
depend largely upon the constitution, articles or by-laws of the
association, subject to appropriate government regulations. 111
No reliance can be placed by MPA on the cited American rulings
as to immunity from liability of a pilots' association in ljght of
existing positive regulation under Philippine law. The Court of
Appeals properly applied the clear and unequivocal provisions
of Customs Administrative Order No. 15-65. In doing so, it was
just being consistent with its finding of the non-existence of
employer-employee relationship between MPA and Capt.
Gavino which precludes the application of Article 2180 of the
Civil Code.
True. Customs Administrative Order No. 15-65 does not
categorically characterize or label MPA's liability as solidary in
nature. Nevertheless, a careful reading and proper analysis of
the correlated provisions lead to the conclusion that MPA is
solidarily liable for the negligence of its member pilots, without
prejudice to subsequent reimbursement from the pilot at fault.
Art. 1207 of the Civil Code provides that there is solidary liability
only when the obligation expressly so states, or when the law or
the nature of the obligation requires solidarity. Plainly, Customs
Administrative Order No. 15-65, which as an implementing rule
has the force and effect of law, can validly provide for solidary
liability.We note the Solicitor General's comment hereon, to wit:
. . . Customs Administrative Order No. 15-65 may be a mere rule
and regulation issued by an administrative agency pursuant to a
delegated authority to fix "the details" in the execution or
enforcement of a policy set out in the law itself. Nonetheless,
said administrative order, which adds to the procedural or
enforcing provisions of substantive law, is legally binding and
19
receives the same statutory force upon going into effect. In that
sense, it has equal, not lower, statutory force and effect as a
regular statute passed by the legislature. 112
MPA's prayer for modification of the appellate court's decision
under review by exculpating petitioner MPA "from liability
beyond seventy-five percent (75 %) of Reserve Fund" is
unnecessary because the liability of MPA under Par. XXVIII of
Customs Administrative Order No. 15-65 is in fact limited to
seventy-five percent (75 %) of its prescribed reserve fund, any
amount of liability beyond that being for the personal account of
the erring pilot and subject to reimbursement in case of a finding
of fault by the member concerned. This is clarified by the
Solicitor General:
Moreover, contrary to petitioner's pretensions, the provisions of
Customs Administrative Order No. 15-65 do not limit the liability
of petitioner as a pilots' association to an absurdly small amount
of seventy-five per centum (75 %) of the member pilots'
contribution of P2,000.00 to the reserve fund. The law speaks of
the entire reserve fund required to be maintained by the pilots'
association to answer (for) whatever liability arising from the
tortious act of its members. And even if the association is held
liable for an amount greater than the reserve fund, the
association may not resist the liability by claiming to be liable
only up to seventy-five per centum (75 %) of the reserve fund
because in such instance it has the right to be reimbursed by the
offending member pilot for the excess. 113
WHEREFORE, in view of all of the foregoing, the consolidated
petitions for review are DENIED and the assailed decision of the
Court of Appeals is AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and Del Rosario,
specifically its associate, Atty. Herbert A. Tria, is
REPRIMANDED and WARNED that a repetition of the same or
similar acts of heedless disregard of its undertakings under the
Rules shall be dealt with more severely.
The original members of the legal team of the Office of the
Solicitor General assigned to this case, namely, Assistant
Solicitor General Roman G. Del Rosario and Solicitor Luis F.
Simon, are ADMONISHED and WARNED that a repetition of the
same or similar acts of unduly delaying proceedings due to
delayed filing of required pleadings shall also be dealt with more
stringently.
The Solicitor Genral is DIRECTED to look into the
circumstances of this case and to adopt provident measures to
avoid a repetition of this incident and which would ensure prompt
compliance with orders of this Court regarding the timely filing of
requisite pleadings, in the interest of just, speedy and orderly
administration of justice.
Let copies of this decision be spread upon the personal records
of the lawyers named herein in the Office of the Bar Confidant.
SO ORDERED.

G.R. No. 141538 March 23, 2004
HERMANA R. CEREZO, petitioner, vs.
DAVID TUAZON, respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari1 to annul the
Resolution2 dated 21 October 1999 of the Court of Appeals in
CA-G.R. SP No. 53572, as well as its Resolution dated 20
January 2000 denying the motion for reconsideration. The Court
of Appeals denied the petition for annulment of the
Decision3 dated 30 May 1995 rendered by the Regional Trial
Court of Angeles City, Branch 56 ("trial court"), in Civil Case No.
7415. The trial court ordered petitioner Hermana R. Cerezo
("Mrs. Cerezo") to pay respondent David Tuazon ("Tuazon")
actual damages, loss of earnings, moral damages, and costs of
suit.
Antecedent Facts
Around noontime of 26 June 1993, a Country Bus Lines
passenger bus with plate number NYA 241 collided with a
tricycle bearing plate number TC RV 126 along Captain M. Palo
Street, Sta. Ines, Mabalacat, Pampanga. On 1 October 1993,
tricycle driver Tuazon filed a complaint for damages against Mrs.
Cerezo, as owner of the bus line, her husband Attorney Juan
Cerezo ("Atty. Cerezo"), and bus driver Danilo A. Foronda
("Foronda"). The complaint alleged that:
7. At the time of the incident, plaintiff [Tuazon] was in his proper
lane when the second-named defendant [Foronda], being then
the driver and person in charge of the Country Bus with plate
number NYA 241, did then and there willfully, unlawfully, and
feloniously operate the said motor vehicle in a negligent,
careless, and imprudent manner without due regard to traffic
rules and regulations, there being a "Slow Down" sign near the
scene of the incident, and without taking the necessary
precaution to prevent loss of lives or injuries, his negligence,
carelessness and imprudence resulted to severe damage to the
tricycle and serious physical injuries to plaintiff thus making him
unable to walk and becoming disabled, with his thumb and
middle finger on the left hand being cut[.]4
On 1 October 1993, Tuazon filed a motion to litigate as a pauper.
Subsequently, the trial court issued summons against Atty.
Cerezo and Mrs. Cerezo ("the Cerezo spouses") at the Makati
address stated in the complaint. However, the summons was
returned unserved on 10 November 1993 as the Cerezo
spouses no longer held office nor resided in Makati. On 18 April
1994, the trial court issued alias summons against the Cerezo
spouses at their address in Barangay Sta. Maria, Camiling,
Tarlac. The alias summons and a copy of the complaint were
finally served on 20 April 1994 at the office of Atty. Cerezo, who
was then working as Tarlac Provincial Prosecutor. Atty. Cerezo
reacted angrily on learning of the service of summons upon his
person. Atty. Cerezo allegedly told Sheriff William Canlas:
20
"Punyeta, ano ang gusto mong mangyari? Gusto mong hindi ka
makalabas ng buhay dito? Teritoryo ko ito. Wala ka sa teritoryo
mo."5
The records show that the Cerezo spouses participated in the
proceedings before the trial court. The Cerezo spouses filed a
comment with motion for bill of particulars dated 29 April 1994
and a reply to opposition to comment with motion dated 13 June
1994.6 On 1 August 1994, the trial court issued an order directing
the Cerezo spouses to file a comment to the opposition to the
bill of particulars. Atty. Elpidio B. Valera ("Atty. Valera") of Valera
and Valera Law Offices appeared on behalf of the Cerezo
spouses. On 29 August 1994, Atty. Valera filed an urgent ex-
parte motion praying for the resolution of Tuazon’s motion to
litigate as a pauper and for the issuance of new summons on
the Cerezo spouses to satisfy proper service in accordance with
the Rules of Court.7
On 30 August 1994, the trial court issued an order resolving
Tuazon’s motion to litigate as a pauper and the Cerezo spouses’
urgent ex-parte motion. The order reads:
At the hearing on August 30, 1994, the plaintiff [Tuazon] testified
that he is presently jobless; that at the time of the filing of this
case, his son who is working in Malaysia helps him and sends
him once in a while P300.00 a month, and that he does not have
any real property. Attached to the Motion to Litigate as Pauper
are his Affidavit that he is unemployed; a Certification by the
Barangay Captain of his poblacion that his income is not enough
for his family’s subsistence; and a Certification by the Office of
the Municipal Assessor that he has no landholding in the
Municipality of Mabalacat, Province of Pampanga.
The Court is satisfied from the unrebutted testimony of the
plaintiff that he is entitled to prosecute his complaint in this case
as a pauper under existing rules.
On the other hand, the Court denies the prayer in the
Appearance and Urgent Ex-Parte Motion requiring new
summons to be served to the defendants. The Court is of the
opinion that any infirmity in the service of the summons to the
defendant before plaintiff was allowed to prosecute his
complaint in this case as a pauper has been cured by this Order.
If within 15 days from receipt of this Order, the defendants do
not question on appeal this Order of this Court, the Court shall
proceed to resolve the Motion for Bill of Particulars.8
On 27 September 1994, the Cerezo spouses filed an urgent ex-
parte motion for reconsideration. The trial court denied the
motion for reconsideration.
On 14 November 1994, the trial court issued an order directing
the Cerezo spouses to file their answer within fifteen days from
receipt of the order. The Cerezo spouses did not file an answer.
On 27 January 1995, Tuazon filed a motion to declare the
Cerezo spouses in default. On 6 February 1995, the trial court
issued an order declaring the Cerezo spouses in default and
authorizing Tuazon to present his evidence. 9
On 30 May 1995, after considering Tuazon’s testimonial and
documentary evidence, the trial court ruled in Tuazon’s favor.
The trial court made no pronouncement on Foronda’s liability
 21

because there was no service of summons on him. The trial Exhibit - Signature of the defendant’s counsel;
court did not hold Atty. Cerezo liable as Tuazon failed to show 4-A
that Mrs. Cerezo’s business benefited the family, pursuant to
Article 121(3) of the Family Code. The trial court held Mrs. Exhibit 5 - Appearance and Urgent Ex-Parte Motion;
Cerezo solely liable for the damages sustained by Tuazon
arising from the negligence of Mrs. Cerezo’s employee, Exhibit 6 - Order dated November 14, 1994;
pursuant to Article 2180 of the Civil Code. The dispositive
portion of the trial court’s decision reads: Exhibit - Postal certification dated January 13,
6-A 1995;
WHEREFORE, judgment is hereby rendered ordering the
defendant Hermana Cerezo to pay the plaintiff: Exhibit 7 - Order dated February [illegible];

a) For Actual Damages - Exhibit - Court’s return slip addressed to Atty.

P69,485.35
7-A Elpidio Valera;
1) Expenses for operation and medical Treatment
Exhibit - Court’s return slip addressed to Spouses
2) Cost of repair of the tricycle 7-B Juan and Hermana Cerezo;

b) For loss of earnings - Exhibit 8 - Decision dated May [30], 1995

39,921.00

c) For moral damages - Exhibit - Court’s return slip addressed to defendant

43,300.00
8-A Hermana Cerezo;
d) And to pay the cost of the suit. - 20,000.00
Exhibit - Court’s return slip addressed to
The docket fees and other expenses in the filing of this suit shall 8-B defendant’s counsel, Atty. Elpidio Valera;
be lien on whatever judgment may be rendered in favor of the
plaintiff. Exhibit 9 - Order dated September 21, 1995;

SO ORDERED.10 Exhibit - Second Page of Exhibit 9;

Mrs. Cerezo received a copy of the decision on 25 June 1995.
On 10 July 1995, Mrs. Cerezo filed before the trial court a
petition for relief from judgment on the grounds of "fraud,
mistake or excusable negligence." Testifying before the trial
court, both Mrs. Cerezo and Atty. Valera denied receipt of
notices of hearings and of orders of the court. Atty. Valera added
that he received no notice before or during the 8 May 1995
elections, "when he was a senatorial candidate for the KBL
Party, and very busy, using his office and residence as Party
National Headquarters." Atty. Valera claimed that he was able
to read the decision of the trial court only after Mrs. Cerezo sent
him a copy.11
Tuazon did not testify but presented documentary evidence to
prove the participation of the Cerezo spouses in the case.
Tuazon presented the following exhibits:
Exhibit 1 - Sheriff’s return and summons;
Exhibit - Alias summons dated April 20, 1994;
1-A
Exhibit 2 - Comment with Motion;
Exhibit 3 - Minutes of the hearing held on August 1,
1994;
Exhibit - Signature of defendant’s counsel;
3-A
Exhibit 4 - Minutes of the hearing held on August 30,
1994;
9-A
Exhibit - Third page of Exhibit 9;
9-B
Exhibit - Fourth page of Exhibit 9;
9-C
Exhibit - Court’s return slip addressed to Atty.
9-D Elpidio Valera;
and
Exhibit - Court’s return slip addressed to plaintiff’s
9-E counsel, Atty. Norman Dick de Guzman.12
On 4 March 1998, the trial court issued an order13 denying the
petition for relief from judgment. The trial court stated that having
received the decision on 25 June 1995, the Cerezo spouses
should have filed a notice of appeal instead of resorting to a
petition for relief from judgment. The trial court refused to grant
relief from judgment because the Cerezo spouses could have
availed of the remedy of appeal. Moreover, the Cerezo spouses
not only failed to prove fraud, accident, mistake or excusable
negligence by conclusive evidence, they also failed to prove that
they had a good and substantial defense. The trial court noted
that the Cerezo spouses failed to appeal because they relied on
an expected settlement of the case.
The Cerezo spouses subsequently filed before the Court of
Appeals a petition for certiorari under Section 1 of Rule 65. The
petition was docketed as CA-G.R. SP No. 48132.14 The petition
questioned whether the trial court acquired jurisdiction over the
case considering there was no service of summons on Foronda,

whom the Cerezo spouses claimed was an indispensable party.
In a resolution15 dated 21 January 1999, the Court of Appeals
denied the petition for certiorari and affirmed the trial court’s
order denying the petition for relief from judgment. The Court of
Appeals declared that the Cerezo spouses’ failure to file an
answer was due to their own negligence, considering that they
continued to participate in the proceedings without filing an
answer. There was also nothing in the records to show that the
Cerezo spouses actually offered a reasonable settlement to
Tuazon. The Court of Appeals also denied Cerezo spouses’
motion for reconsideration for lack of merit.
The Cerezo spouses filed before this Court a petition for review
on certiorari under Rule 45. Atty. Cerezo himself signed the
petition, docketed as G.R. No. 137593. On 13 April 1999, this
Court rendered a resolution denying the petition for review
on certiorari for failure to attach an affidavit of service of copies
of the petition to the Court of Appeals and to the adverse parties.
Even if the petition complied with this requirement, the Court
would still have denied the petition as the Cerezo spouses failed
to show that the Court of Appeals committed a reversible error.
The Court’s resolution was entered in the Book of Entries and
Judgments when it became final and executory on 28 June
1999.16
Undaunted, the Cerezo spouses filed before the Court of
Appeals on 6 July 1999 a petition for annulment of judgment
under Rule 47 with prayer for restraining order. Atty. Valera and
Atty. Dionisio S. Daga ("Atty. Daga") represented Mrs. Cerezo
in the petition, docketed as CA-G.R. SP No. 53572.17 The
petition prayed for the annulment of the 30 May 1995 decision
of the trial court and for the issuance of a writ of preliminary
injunction enjoining execution of the trial court’s decision
pending resolution of the petition.
The Court of Appeals denied the petition for annulment of
judgment in a resolution dated 21 October 1999. The resolution
reads in part:
In this case, records show that the petitioner previously filed with
the lower court a Petition for Relief from Judgment on the ground
that they were wrongfully declared in default while waiting for an
amicable settlement of the complaint for damages. The court a
quo correctly ruled that such petition is without merit. The
defendant spouses admit that during the initial hearing they
appeared before the court and even mentioned the need for an
amicable settlement. Thus, the lower court acquired jurisdiction
over the defendant spouses.
Therefore, petitioner having availed of a petition for relief, the
remedy of an annulment of judgment is no longer available. The
proper action for the petitioner is to appeal the order of the lower
court denying the petition for relief.
Wherefore, the instant petition could not be given due course
and should accordingly be dismissed.
SO ORDERED.18
On 20 January 2000, the Court of Appeals denied the Cerezo
spouses’ motion for reconsideration.19 The Court of Appeals
stated:
22
A distinction should be made between a court’s jurisdiction over
a person and its jurisdiction over the subject matter of a case.
The former is acquired by the proper service of summons or by
the parties’ voluntary appearance; while the latter is conferred
by law.
Resolving the matter of jurisdiction over the subject matter,
Section 19(1) of B[atas] P[ambansa] 129 provides that Regional
Trial Courts shall exercise exclusive original jurisdiction in all
civil actions in which the subject of the litigation is incapable of
pecuniary estimation. Thus it was proper for the lower court to
decide the instant case for damages.
Unlike jurisdiction over the subject matter of a case which is
absolute and conferred by law; any defects [sic] in the
acquisition of jurisdiction over a person (i.e., improper filing of
civil complaint or improper service of summons) may be waived
by the voluntary appearance of parties.
The lower court admits the fact that no summons was served on
defendant Foronda. Thus, jurisdiction over the person of
defendant Foronda was not acquired, for which reason he was
not held liable in this case. However, it has been proven that
jurisdiction over the other defendants was validly acquired by the
court a quo.
The defendant spouses admit to having appeared in the initial
hearings and in the hearing for plaintiff’s motion to litigate as a
pauper. They even mentioned conferences where attempts
were made to reach an amicable settlement with plaintiff.
However, the possibility of amicable settlement is not a good
and substantial defense which will warrant the granting of said
petition.
xxx
Assuming arguendo that private respondent failed to reserve his
right to institute a separate action for damages in the criminal
action, the petitioner cannot now raise such issue and question
the lower court’s jurisdiction because petitioner and her husband
have waived such right by voluntarily appearing in the civil case
for damages. Therefore, the findings and the decision of the
lower court may bind them.
Records show that the petitioner previously filed with the lower
court a Petition for Relief from Judgment on the ground that they
were wrongfully declared in default while waiting for an amicable
settlement of the complaint for damages. The court a quo
correctly ruled that such petition is without merit, jurisdiction
having been acquired by the voluntary appearance of defendant
spouses.
Once again, it bears stressing that having availed of a petition
for relief, the remedy of annulment of judgment is no longer
available.
Based on the foregoing, the motion for reconsideration could not
be given due course and is hereby DENIED.
SO ORDERED.20
The Issues

On 7 February 2000, Mrs. Cerezo, this time with Atty. Daga
alone representing her, filed the present petition for review
on certiorari before this Court. Mrs. Cerezo claims that:
1. In dismissing the Petition for Annulment of Judgment, the
Court of Appeals assumes that the issues raised in the petition
for annulment is based on extrinsic fraud related to the denied
petition for relief notwithstanding that the grounds relied upon
involves questions of lack of jurisdiction.
2. In dismissing the Petition for Annulment, the Court of Appeals
disregarded the allegation that the lower court[’s] findings of
negligence against defendant-driver Danilo Foronda [whom] the
lower court did not summon is null and void for want of due
process and consequently, such findings of negligence which is
[sic] null and void cannot become the basis of the lower court to
adjudge petitioner-employer liable for civil damages.
3. In dismissing the Petition for Annulment, the Court of Appeals
ignored the allegation that defendant-driver Danilo A. Foronda
whose negligence is the main issue is an indispensable party
whose presence is compulsory but [whom] the lower court did
not summon.
4. In dismissing the Petition for Annulment, the Court of Appeals
ruled that assuming arguendo that private respondent failed to
reserve his right to institute a separate action for damages in the
criminal action, the petitioner cannot now raise such issue and
question the lower court’s jurisdiction because petitioner [has]
waived such right by voluntarily appearing in the civil case for
damages notwithstanding that lack of jurisdiction cannot be
waived.21
The Court’s Ruling
The petition has no merit. As the issues are interrelated, we shall
discuss them jointly.
Remedies Available to a Party Declared in Default
An examination of the records of the entire proceedings shows
that three lawyers filed and signed pleadings on behalf of Mrs.
Cerezo, namely, Atty. Daga, Atty. Valera, and Atty. Cerezo.
Despite their number, Mrs. Cerezo’s counsels failed to avail of
the proper remedies. It is either by sheer ignorance or by
malicious manipulation of legal technicalities that they have
managed to delay the disposition of the present case, to the
detriment of pauper litigant Tuazon.
Mrs. Cerezo claims she did not receive any copy of the order
declaring the Cerezo spouses in default. Mrs. Cerezo asserts
that she only came to know of the default order on 25 June 1995,
when she received a copy of the decision. On 10 July 1995, Mrs.
Cerezo filed before the trial court a petition for relief from
judgment under Rule 38, alleging "fraud, mistake, or excusable
negligence" as grounds. On 4 March 1998, the trial court denied
Mrs. Cerezo’s petition for relief from judgment. The trial court
stated that Mrs. Cerezo could have availed of appeal as a
remedy and that she failed to prove that the judgment was
entered through fraud, accident, mistake, or excusable
negligence. Mrs. Cerezo then filed before the Court of Appeals
a petition for certiorari under Section 1 of Rule 65 assailing the
denial of the petition for relief from judgment. On 21 January
23
1999, the Court of Appeals dismissed Mrs. Cerezo’s petition. On
24 February 1999, the appellate court denied Mrs. Cerezo’s
motion for reconsideration. On 11 March 1999, Mrs. Cerezo filed
before this Court a petition for review on certiorari under Rule
45, questioning the denial of the petition for relief from judgment.
We denied the petition and our resolution became final and
executory on 28 June 1999.
On 6 July 1999, a mere eight days after our resolution became
final and executory, Mrs. Cerezo filed before the Court of
Appeals a petition for annulment of the judgment of the trial court
under Rule 47. Meanwhile, on 25 August 1999, the trial court
issued over the objection of Mrs. Cerezo an order of execution
of the judgment in Civil Case No. 7415. On 21 October 1999,
the Court of Appeals dismissed the petition for annulment of
judgment. On 20 January 2000, the Court of Appeals denied
Mrs. Cerezo’s motion for reconsideration. On 7 February 2000,
Mrs. Cerezo filed the present petition for review on certiorari
under Rule 45 challenging the dismissal of her petition for
annulment of judgment.
Lina v. Court of Appeals22 enumerates the remedies available to
a party declared in default:
a) The defendant in default may, at any time after discovery
thereof and before judgment, file a motion under oath to set
aside the order of default on the ground that his failure to
answer was due to fraud, accident, mistake or excusable
negligence, and that he has a meritorious defense (Sec. 3, Rule
18 [now Sec. 3(b), Rule 9]);
b) If the judgment has already been rendered when the
defendant discovered the default, but before the same has
become final and executory, he may file a motion for new
trial under Section 1 (a) of Rule 37;
c) If the defendant discovered the default after the judgment has
become final and executory, he may file a petition for
relief under Section 2 [now Section 1] of Rule 38; and
d) He may also appeal from the judgment rendered against him
as contrary to the evidence or to the law, even if no petition to
set aside the order of default has been presented by him (Sec.
2, Rule 41). (Emphasis added)
Moreover, a petition for certiorari to declare the nullity of a
judgment by default is also available if the trial court improperly
declared a party in default, or even if the trial court properly
declared a party in default, if grave abuse of discretion attended
such declaration.23
Mrs. Cerezo admitted that she received a copy of the trial court’s
decision on 25 June 1995. Based on this admission, Mrs.
Cerezo had at least three remedies at her disposal: an appeal,
a motion for new trial, or a petition for certiorari.
Mrs. Cerezo could have appealed under Rule 41 24 from the
default judgment within 15 days from notice of the judgment.
She could have availed of the power of the Court of Appeals to
try cases and conduct hearings, receive evidence, and perform
all acts necessary to resolve factual issues raised in cases
falling within its appellate jurisdiction.25

Mrs. Cerezo also had the option to file under Rule 3726 a motion
for new trial within the period for taking an appeal. If the trial
court grants a new trial, the original judgment is vacated, and
the action will stand for trial de novo. The recorded evidence
taken in the former trial, as far as the same is material and
competent to establish the issues, shall be used at the new trial
without retaking the same.27
Mrs. Cerezo also had the alternative of filing under Rule 65 28 a
petition for certiorari assailing the order of default within 60 days
from notice of the judgment. An order of default is interlocutory,
and an aggrieved party may file an appropriate special civil
action under Rule 65.29 In a petition for certiorari, the appellate
court may declare void both the order of default and the
judgment of default.
Clearly, Mrs. Cerezo had every opportunity to avail of these
remedies within the reglementary periods provided under the
Rules of Court. However, Mrs. Cerezo opted to file a petition for
relief from judgment, which is available only in exceptional
cases. A petition for relief from judgment should be filed within
the reglementary period of 60 days from knowledge of judgment
and six months from entry of judgment, pursuant to
Rule 38 of the Rules of Civil Procedure.30 Tuason v. Court of
Appeals31 explained the nature of a petition for relief from
judgment:
When a party has another remedy available to him, which may
either be a motion for new trial or appeal from an adverse
decision of the trial court, and he was not prevented by fraud,
accident, mistake or excusable negligence from filing such
motion or taking such appeal, he cannot avail himself of this
petition. Indeed, relief will not be granted to a party who seeks
avoidance from the effects of the judgment when the loss of the
remedy at law was due to his own negligence; otherwise the
petition for relief can be used to revive the right to appeal which
has been lost thru inexcusable negligence.
Evidently, there was no fraud, accident, mistake, or excusable
negligence that prevented Mrs. Cerezo from filing an appeal, a
motion for new trial or a petition for certiorari. It was error for her
to avail of a petition for relief from judgment.
After our resolution denying Mrs. Cerezo’s petition for relief
became final and executory, Mrs. Cerezo, in her last ditch
attempt to evade liability, filed before the Court of Appeals a
petition for annulment of the judgment of the trial court.
Annulment is available only on the grounds of extrinsic fraud and
lack of jurisdiction. If based on extrinsic fraud, a party must file
the petition within four years from its discovery, and if based on
lack of jurisdiction, before laches or estoppel bars the petition.
Extrinsic fraud is not a valid ground if such fraud was used as a
ground, or could have been used as a ground, in a motion for
new trial or petition for relief from judgment. 32
Mrs. Cerezo insists that lack of jurisdiction, not extrinsic fraud,
was her ground for filing the petition for annulment of judgment.
However, a party may avail of the remedy of annulment of
judgment under Rule 47 only if the ordinary remedies of new
trial, appeal, petition for relief from judgment, or other
appropriate remedies are no longer available through no fault of
the party.33 Mrs. Cerezo could have availed of a new trial or
24
appeal but through her own fault she erroneously availed of the
remedy of a petition for relief, which was denied with finality.
Thus, Mrs. Cerezo may no longer avail of the remedy of
annulment.
In any event, the trial court clearly acquired jurisdiction over Mrs.
Cerezo’s person. Mrs. Cerezo actively participated in the
proceedings before the trial court, submitting herself to the
jurisdiction of the trial court. The defense of lack of jurisdiction
fails in light of her active participation in the trial court
proceedings. Estoppel or laches may also bar lack of jurisdiction
as a ground for nullity especially if raised for the first time on
appeal by a party who participated in the proceedings before the
trial court, as what happened in this case.34
For these reasons, the present petition should be dismissed for
utter lack of merit. The extraordinary action to annul a final
judgment is restricted to the grounds specified in the rules. The
reason for the restriction is to prevent this extraordinary action
from being used by a losing party to make a complete farce of a
duly promulgated decision that has long become final and
executory. There would be no end to litigation if parties who have
unsuccessfully availed of any of the appropriate remedies or lost
them through their fault could still bring an action for annulment
of judgment.35 Nevertheless, we shall discuss the issues raised
in the present petition to clear any doubt about the correctness
of the decision of the trial court.
Mrs. Cerezo’s Liability and the Trial Court’s Acquisition of
Jurisdiction
Mrs. Cerezo contends that the basis of the present petition for
annulment is lack of jurisdiction. Mrs. Cerezo asserts that the
trial court could not validly render judgment since it failed to
acquire jurisdiction over Foronda. Mrs. Cerezo points out that
there was no service of summons on Foronda. Moreover,
Tuazon failed to reserve his right to institute a separate civil
action for damages in the criminal action. Such contention
betrays a faulty foundation. Mrs. Cerezo’s contention proceeds
from the point of view of criminal law and not of civil law, while
the basis of the present action of Tuazon is quasi-delict under
the Civil Code, not delict under the Revised Penal Code.
The same negligent act may produce civil liability arising from a
delict under Article 103 of the Revised Penal Code, or may give
rise to an action for a quasi-delict under Article 2180 of the Civil
Code. An aggrieved party may choose between the two
remedies. An action based on a quasi-delict may proceed
independently from the criminal action.36There is, however, a
distinction between civil liability arising from a delict and civil
liability arising from a quasi-delict. The choice of remedy,
whether to sue for a delict or a quasi-delict, affects the
procedural and jurisdictional issues of the action.37
Tuazon chose to file an action for damages based on a quasi-
delict. In his complaint, Tuazon alleged that Mrs. Cerezo,
"without exercising due care and diligence in the supervision and
management of her employees and buses," hired Foronda as
her driver. Tuazon became disabled because of Foronda’s
"recklessness, gross negligence and imprudence," aggravated
by Mrs. Cerezo’s "lack of due care and diligence in the selection
and supervision of her employees, particularly Foronda." 38

The trial court thus found Mrs. Cerezo liable under Article 2180
of the Civil Code. Article 2180 states in part:
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in
any business or industry.
Contrary to Mrs. Cerezo’s assertion, Foronda is not an
indispensable party to the case. An indispensable party is one
whose interest is affected by the court’s action in the litigation,
and without whom no final resolution of the case is
possible.39 However, Mrs. Cerezo’s liability as an employer in an
action for a quasi-delict is not only solidary, it is also primary and
direct. Foronda is not an indispensable party to the final
resolution of Tuazon’s action for damages against Mrs. Cerezo.
The responsibility of two or more persons who are liable for a
quasi-delict is solidary.40 Where there is a solidary obligation on
the part of debtors, as in this case, each debtor is liable for the
entire obligation. Hence, each debtor is liable to pay for the
entire obligation in full. There is no merger or renunciation of
rights, but only mutual representation.41 Where the obligation of
the parties is solidary, either of the parties is indispensable, and
the other is not even a necessary party because complete relief
is available from either.42 Therefore, jurisdiction over Foronda is
not even necessary as Tuazon may collect damages from Mrs.
Cerezo alone.
Moreover, an employer’s liability based on a quasi-delict is
primary and direct, while the employer’s liability based on a
delict is merely subsidiary.43 The words "primary and direct," as
contrasted with "subsidiary," refer to the remedy provided by law
for enforcing the obligation rather than to the character and limits
of the obligation.44 Although liability under Article 2180 originates
from the negligent act of the employee, the aggrieved party may
sue the employer directly. When an employee causes damage,
the law presumes that the employer has himself committed an
act of negligence in not preventing or avoiding the damage. This
is the fault that the law condemns. While the employer is civilly
liable in a subsidiary capacity for the employee’s criminal
negligence, the employer is also civilly liable directly and
separately for his own civil negligence in failing to exercise due
diligence in selecting and supervising his employee. The idea
that the employer’s liability is solely subsidiary is wrong.45
The action can be brought directly against the person
responsible (for another), without including the author of the act.
The action against the principal is accessory in the sense that it
implies the existence of a prejudicial act committed by the
employee, but it is not subsidiary in the sense that it can not be
instituted till after the judgment against the author of the act or
at least, that it is subsidiary to the principal action; the action for
responsibility (of the employer) is in itself a principal action. 46
Thus, there is no need in this case for the trial court to acquire
jurisdiction over Foronda. The trial court’s acquisition of
jurisdiction over Mrs. Cerezo is sufficient to dispose of the
present case on the merits.
In contrast, an action based on a delict seeks to enforce the
subsidiary liability of the employer for the criminal negligence of
the employee as provided in Article 103 of the Revised Penal
25
Code. To hold the employer liable in a subsidiary capacity under
a delict, the aggrieved party must initiate a criminal action where
the employee’s delict and corresponding primary liability are
established.47 If the present action proceeds from a delict, then
the trial court’s jurisdiction over Foronda is necessary. However,
the present action is clearly for the quasi-delict of Mrs. Cerezo
and not for the delict of Foronda.
The Cerezo spouses’ contention that summons be served anew
on them is untenable in light of their participation in the trial court
proceedings. To uphold the Cerezo spouses’ contention would
make a fetish of a technicality.48Moreover, any irregularity in the
service of summons that might have vitiated the trial court’s
jurisdiction over the persons of the Cerezo spouses was
deemed waived when the Cerezo spouses filed a petition for
relief from judgment.49
We hold that the trial court had jurisdiction and was competent
to decide the case in favor of Tuazon and against Mrs. Cerezo
even in the absence of Foronda. Contrary to Mrs. Cerezo’s
contention, Foronda is not an indispensable party to the present
case. It is not even necessary for Tuazon to reserve the filing of
a separate civil action because he opted to file a civil action for
damages against Mrs. Cerezo who is primarily and directly liable
for her own civil negligence. The words of Justice Jorge Bocobo
in Barredo v. Garcia still hold true today as much as it did in
1942:
x x x [T]o hold that there is only one way to make defendant’s
liability effective, and that is, to sue the driver and exhaust his
(the latter’s) property first, would be tantamount to compelling
the plaintiff to follow a devious and cumbersome method of
obtaining relief. True, there is such a remedy under our laws, but
there is also a more expeditious way, which is based on the
primary and direct responsibility of the defendant under article
[2180] of the Civil Code. Our view of the law is more likely to
facilitate remedy for civil wrongs, because the procedure
indicated by the defendant is wasteful and productive of delay,
it being a matter of common knowledge that professional drivers
of taxis and other similar public conveyances do not have
sufficient means with which to pay damages. Why, then, should
the plaintiff be required in all cases to go through this
roundabout, unnecessary, and probably useless procedure? In
construing the laws, courts have endeavored to shorten and
facilitate the pathways of right and justice.50
Interest at the rate of 6% per annum is due on the amount of
damages adjudged by the trial court.51 The 6% per
annum interest shall commence from 30 May 1995, the date of
the decision of the trial court. Upon finality of this decision,
interest at 12% per annum, in lieu of 6% per annum, is due on
the amount of damages adjudged by the trial court until full
payment.
WHEREFORE, we DENY the instant petition for review. The
Resolution dated 21 October 1999 of the Court of Appeals in
CA-G.R. SP No. 53572, as well as its Resolution dated 20
January 2000 denying the motion for reconsideration,
is AFFIRMED with the MODIFICATION that the amount due
shall earn legal interest at 6% per annum computed from 30
May 1995, the date of the trial court’s decision. Upon finality of
this decision, the amount due shall earn interest at 12% per

annum, in lieu of 6% per annum, until full payment. SO
ORDERED.
Footnotes
26 Section 1. Grounds of and period for filing motion for new trial
or reconsideration. — Within the period for taking an appeal, the
aggrieved party may move the trial court to set aside the
judgment or final order and grant a new trial for one or more of
the following causes materially affecting the substantial rights of
said party:
(a) Fraud, accident, mistake or excusable negligence which
ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired in his rights; or
(b) Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced at the trial,
and which if presented would probably alter the result.
xxx
28 Section 1. Petition for certiorari. – When any tribunal, board,
or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and
there is no appeal, or any plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require.
xxx
Section 4. Where petition filed. – The petition may be filed not
later than sixty (60) days from notice of judgment, order or
resolution sought to be assailed in the Supreme Court; or, if it
relates to the acts or omissions of a lower court or of a
corporation, board, officer or person, in the Regional Trial Court
exercising jurisdiction over the territorial area as defined by the
Supreme Court. It may also be filed in the Court of Appeals
whether or not the same is in aid of its appellate jurisdiction, or
in the Sandiganbayan if it is in aid of its jurisdiction. If it involves
acts or omissions of a quasi-judicial agency, and unless
otherwise provided by law or these Rules, the petition shall be
filed in and cognizable only by the Court of Appeals.
30 Section
1. Petition for relief from judgment, order, or other
proceedings. – When a judgment or final order is entered, or any
other proceeding is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable negligence, he
may file a petition in such court and in the same case praying
that the judgment, order or proceeding be set aside.
Section 3. Time for filing petition; contents and verification. – A
petition provided for in either of the preceding sections of this
Rule must be verified, filed within sixty (60) days after the
petitioner learns of the judgment, final order, or other proceeding
to be set aside, and not more than six (6) months after such
judgment or final order was entered, or such proceeding was
taken; x x x.
26
G.R. No. 70890, September 18, 1992
CRESENCIO LIBI* AND AMELIA YAP LIBI, PETITIONERS,
VS. HON. INTERMEDIATE APPELLATE COURT, FELIPE
GOTIONG AND SHIRLEY GOTIONG, RESPONDENTS.
DECISION
REGALADO, J.:
One of the ironic verities of life, it has been said, is that sorrow
is sometimes a touchstone of love. A tragic illustration is
provided by the instant case, wherein two lovers died while still
in the prime of their years, a bitter episode for those whose lives
they have touched. While we cannot expect to award complete
assuagement to their families through seemingly prosaic legal
verbiage, this disposition should at least terminate the acrimony
and rancor of an extended judicial contest resulting from the
unfortunate occurrence.
In this final denouement of the judicial recourse the stages
whereof were alternately initiated by the parties, petitioners are
now before us seeking the reversal of the judgment of
respondent court promulgated on January 2, 1985 in AC-G.R.
CV No. 69060 with the following decretal portion:
"WHEREFORE, the decision of the lower court dismissing
plaintiff's complaint is hereby reversed; and instead, judgment is
hereby rendered sentencing defendants, jointly and solidarily, to
pay to plaintiffs the following amounts:
1. Moral damages, P30,000.00;
2. Exemplary damages, P10,000.00;
3. Attorney's fees, P20,000.00, and costs.
However, denial of defendants-appellees' counterclaims
is affirmed."[1]
Synthesized from the findings of the lower courts, it appears that
respondent spouses are the legitimate parents of Julie Ann
Gotiong who, at the time of the deplorable incident which took
place and from which she died on January 14, 1979, was an 18-
year old first year commerce student of the University of San
Carlos, Cebu City; while petitioners are the parents of Wendell
Libi, then a minor between 18 and 19 years of age living with
his aforesaid parents, and who also died in the same event on
the same date.
For more than two (2) years before their deaths, Julie Ann
Gotiong and Wendell Libi were sweethearts until December,
1978 when Julie Ann broke up her relationship with Wendell
after she supposedly found him to be sadistic and irresponsible.
During the first and second weeks of January, 1979, Wendell
kept pestering Julie Ann with demands for reconciliation but the
latter persisted in her refusal, prompting the former to resort to
threats against her. In order to avoid him, Julie Ann stayed in the
house of her best friend, Malou Alfonso, at the corner of Maria
Cristina and Juana Osmeña Streets, Cebu City, from January 7
to 13, 1978.
On January 14, 1979, Julie Ann and Wendell died, each
from a single gunshot wound inflicted with the same firearm, a

Smith and Wesson revolver licensed in the name of petitioner
Cresencio Libi, which was recovered from the scene of the crime
inside the residence of private respondents at the corner of
General Maxilom and D. Jakosalem streets of the same city.
Due to the absence of an eyewitness account of the
circumstances surrounding the death of both minors, their
parents, who are the contending parties herein, posited their
respective theories drawn from their interpretation of
circumstantial evidence, available reports, documents and
evidence of physical facts.
Private respondents, bereaved over the death of their daughter,
submitted that Wendell caused her death by shooting her with
the aforesaid firearm and, thereafter, turning the gun on himself
to commit suicide. On the other hand, petitioners, puzzled and
likewise distressed over the death of their son, rejected the
imputation and contended that an unknown third party, whom
Wendell may have displeased or antagonized by reason of his
work as a narcotics informer of the Constabulary Anti-Narcotics
Unit (CANU), must have caused Wendell's death and then shot
Julie Ann to eliminate any witness and thereby avoid
identification.
As a result of the tragedy, the parents of Julie Ann filed Civil
Case No. R-17774 in the then Court of First Instance of Cebu
against the parents of Wendell to recover damages arising from
the latter's vicarious liability under Article 2180 of the Civil Code.
After trial, the court below rendered judgment on October 20,
1980 as follows:
"WHEREFORE, premises duly considered, judgment is hereby
rendered dismissing plaintiffs’ complaint for insufficiency of the
evidence. Defendants’ counterclaim is likewise denied for lack
of sufficient merit."[2]
On appeal to respondent court, said judgment of the lower court
dismissing the complaint of therein plaintiffs-appellants was set
aside and another judgment was rendered against defendants-
appellees who, as petitioners in the present appeal by certiorari,
now submit for resolution the following issues in this case:
1. Whether or not respondent court correctly reversed the trial
court in accordance with established decisional laws; and
2. Whether or not Article 2180 of the Civil Code was correctly
interpreted by respondent court to make petitioners liable for
vicarious liability.[3]
In the proceedings before the trial court, Dr. Jesus P. Cerna,
Police Medico-Legal Officer of Cebu, submitted his findings and
opinions on some postulates for determining whether or not the
gunshot wound was inflicted on Wendell Libi by his own suicidal
act. However, undue emphasis was placed by the lower court
on the absence of gunpowder or tattooing around the wound at
the point of entry of the bullet. It should be emphasized,
however, that this is not the only circumstance to be taken into
account in the determination of whether it was suicide or not.
It is true that said witness declared that he found no evidence of
contact or close-contact of an explosive discharge in the
entrance wound. However, as pointed out by private
respondents, the body of deceased Wendell Libi must have
27
been washed at the funeral parlor, considering the
hasty interment thereof a little after eight (8) hours from the
occurrence wherein he died. Dr. Cerna himself could not
categorically state that the body of Wendell Libi was left
untouched at the funeral parlor before he was able to conduct
his autopsy. It will also be noted that Dr. Cerna was negligent in
not conducting a paraffin test on Wendell Libi, hence
possible evidence of gunpowder residue on Wendell's hands
was forever lost when Wendell was hastily buried.
More specifically, Dr. Cerna testified that he
conducted an autopsy on the body of Wendell Libi about eight
(8) hours after the incident or, to be exact, eight (8) hours and
twenty (20) minutes based on the record of death; that when he
arrived at the Cosmopolitan Funeral Homes, the body of the
deceased was already on the autopsy table and in the stage
of rigor mortis; and that said body was not washed, but it
was dried.[4] However, on redirect examination, he admitted that
during the 8-hour interval, he never saw the body nor did he see
whether said body was wiped or washed in the area of the
wound on the head which he examined because the deceased
was inside the morgue.[5] In fact, on cross-examination, he had
earlier admitted that as far as the entrance of the wound, the
trajectory of the bullet and the exit of the wound are concerned,
it is possible that Wendell Libi shot himself.[6]
He further testified that the muzzle of the gun was not pressed
on the head of the victim and that he found no burning or
singeing of the hair or extensive laceration on the gunshot
wound of entrance which are general characteristics of contact
or near-contact fire. On direct examination, Dr. Cerna
nonetheless made these clarification:
"Q Is it not a fact that there are certain guns which are so made
that there would be no black residue or tattooing that could result
from these guns because they are what we call clean?
A Yes, sir. I know that there are what we call smokeless
powder.
ATTY. ORTIZ:
Q Yes. So, in cases, therefore, of guns where the powder is
smokeless, those indications that you said may not rule out the
possibility that the gun was closer than 24 inches, is that correct?
A If the … assuming that the gun used was ... the bullet used
was a smokeless powder.
Q At any rate, doctor, from . . . disregarding those other matters
that you have noticed, the singeing, etc., from the trajectory,
based on the trajectory of the bullets as shown in your own
sketch, is it not a fact that the gun could have been fired by the
person himself, the victim himself, Wendell Libi, because it
shows a point of entry a little above the right ear and point of exit
a little above that, to be very fair and on your oath?
A As far as the point of entrance is concerned and as far
as the trajectory of the bullet is concerned and as far as the
angle or the manner of fire is concerned, it could have been fired
by the victim."[7]
As shown by the evidence, there were only two used
bullets[8] found at the scene of the crime, each of which were the

bullets that hit Julie Ann Gotiong and Wendell Libi, respectively.
Also, the sketch prepared by the Medico-Legal Division of the
National Bureau of Investigation,[9] shows that there is only one
gunshot wound of entrance located at the right temple of
Wendell Libi. The necropsy report prepared by Dr. Cerna states:
xxx
"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with
contusion collar widest inferiorly by 0.2 cm., edges inverted,
oriented upward, located at the head, temporal region, right, 2.8
cms. Behind and 5.5 cms. above right external auditory meatus,
directed slightly forward, upward and to the left, involving skin
and soft tissues, making a punch-in fracture on the temporal
bone, right, penetrating cranial cavity, lacerating extensively
along its course the brain tissues, fracturing parietal
bone, left, and finally making an EXIT wound, irregular, 2.0 x 1.8
cms., edges (e)verted, parietal region, left, 2.0 cms. behind and
12.9 cms. above left external auditory meatus.
xxx
"Evidence of contact or close-contact fire, such as burning
around the gunshot wound of entrance, gunpowder tattooing
(sic), smudging, singeing of hair, extensive laceration or bursting
of the gunshot wound of entrance, or separation of the skin from
the underlying tissue are absent."[10]
On cross-examination, Dr. Cerna demonstrated his theory which
was made of record, thus:
"Q Now, will you please use yourself as Wendell Libi, and
following the entrance of the wound, the trajectory of the bullet
and the exit of the wound, and measuring yourself 24 inches,
will you please indicate to the Honorable Court how would it
have been possible for Wendell Libi to kill himself?
Will you please indicate the 24 inches?
WITNESS:
A Actually, sir, the 24 inches is approximately one arm's
length . . .
ATTY. SENINING:
I would like to make of record that the witness has demonstrated
by extending his right arm almost straight towards his head." [11]
Private respondents assail the fact that the trial court gave
credence to the testimonies of defendants' witnesses Lydia Ang
and James Enrique Tan, the first being a resident of an
apartment across the street from the Gotiongs and the second,
a resident of the house adjacent to the Gotiong residence, who
declared having seen a "shadow" of a person at the gate of the
Gotiong house after hearing shots therefrom.
On cross-examination, Lydia Ang testified that
the apartment where she was staying faces the gas station; that
it is the second apartment; that from her window she can see
directly the gate of the Gotiongs; and, that there is a firewall
between her apartment and the gas station.[12] After seeing a
man jump from the gate of the Gotiongs to the rooftop of the
Tans, she called the police station but the telephone lines were
28
busy. Later on, she talked with James Enrique Tan and told him
that she saw a man leap from the gate towards his rooftop.[13]
However, James Enrique Tan testified that he saw a "shadow"
on top of the gate of the Gotiongs, but denied having talked with
anyone regarding what he saw. He explained that he lives in a
duplex house with a garden in front of it; that his house is next
to Felipe Gotiong's house; and he further gave the following
answers to these questions:
"ATTY. ORTIZ: (TO WITNESS).
Q What is the height of the wall of the Gotiong's in relation to
your house?
WITNESS:
A It is about 8 feet.
ATTY. ORTIZ: (TO WITNESS)
Q And where were you looking from?
WITNESS:
A From upstairs in my living room.
ATTY. ORTIZ (TO WITNESS)
Q From your living room window, is that correct?
WITNESS:
A Yes, but not very clear because the wall is high."[14]
Analyzing the foregoing testimonies, we agree with respondent
court that the same do not inspire credence as to the reliability
and accuracy of the witnesses' observations, since the visual
perceptions of both were obstructed by high walls in their
respective houses in relation to the house of herein private
respondents. On the other hand, witness Manolo Alfonso,
testifying on rebuttal, attested without contradiction that he and
his sister, Malou Alfonso, were waiting for Julie Ann Gotiong
when they heard her scream; that when Manolo climbed the
fence to see what was going on inside the Gotiong house, he
heard the first shot; and, not more than five (5) seconds later, he
heard another shot. Consequently, he went down from the fence
and drove to the police station to report the incident. [15] Manolo's
direct and candid testimony establishes and explains the fact
that it was he whom Lydia Ang and James Enrique Tan saw as
the "shadow" of a man at the gate of the Gotiong house.
We have perforce to reject petitioners' effete and
unsubstantiated pretension that it was another man who shot
Wendell and Julie Ann. It is significant that the Libi family did not
even point to or present any suspect in the crime nor did they
file any case against any alleged "John Doe." Nor can we sustain
the trial court's dubious theory that Wendell Libi did not die by
his own hand because of the overwhelming evidence --
testimonial, documentary and pictorial -- the confluence of which
point to Wendell as the assailant of Julie Ann, his motive being
revenge for her rejection of his persistent pleas for a
reconciliation.

Petitioners' defense that they had exercised the due diligence of
a good father of a family, hence they should not be civilly liable
for the crime committed by their minor son, is not borne out by
the evidence on record either.
Petitioner Amelita Yap Libi, mother of Wendell, testified that her
husband, Cresencio Libi, owns a gun which he kept in a safety
deposit box inside a drawer in their bedroom. Each of these
petitioners holds a key to the safety deposit box and Amelita's
key is always in her bag, all of which facts were known to
Wendell. They have never been their son Wendell taking or
using the gun. She admitted, however, that on that fateful night
the gun was no longer in the safety deposit box. [16] We,
accordingly, cannot but entertain serious doubts that petitioner
spouses had really been exercising the diligence of a good
father of a family by safely locking the fatal gun away. Wendell
could not have gotten hold thereof unless one of the keys to the
safety deposit box was negligently left lying around or he had
free access to the bag of his mother where the other key was.
The diligence of a good father of a family required by law in a
parent and child relationship consists, to a large extent, of the
instruction and supervision of the child. Petitioners were gravely
remiss in their duties as parents in not diligently supervising the
activities of their son, despite his minority and immaturity, so
much so that it was only at the time of Wendell's death that they
allegedly discovered that he was a CANU agent and that
Cresencio's gun was missing from the safety deposit box. Both
parents were sadly wanting in their duty and responsibility in
monitoring and knowing the activities of their children who, for
all they know, may be engaged in dangerous work such as being
drug informers,[17] or even drug users. Neither was a plausible
explanation given for the photograph of Wendell, with a
handwritten dedication to Julie Ann at the back
thereof,[18] holding uptight what clearly appears as a revolver
and on how or why he was in possession of that firearm.
In setting aside the judgment of the court a quo and holding
petitioners civilly liable, as explained at the start of this opinion,
respondent court waved aside the protestations of diligence on
the part of petitioners and had this to say:
"x x x It is still the duty of parents to know the activity of their
children who may be engaged in this dangerous activity
involving the menace of drugs. Had the defendants-appellees
been diligent in supervising the activities of their son, Wendell,
and in keeping said gun from his reach, they could have
prevented Wendell from killing, Julie Ann Gotiong. Therefore,
appellants are liable under Article 2180 of the Civil Code which
provides:
‘The father, and in case of his death or incapacity, the mother,
are responsible for the damages caused by their minor children
who live in their company.'
"Having been grossly negligent in preventing Wendell Libi from
having access to said gun which was allegedly kept in a safety
deposit box, defendants-appellees are subsidiarily liable for the
natural consequence of the criminal act of said minor who was
living in their company. This various liability herein defendants-
appellees has been reiterated by the Supreme Court in many
cases, prominent of which is the case of Fuellas vs. Cadano, et.
al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held that:
29
'The subsidiary liability of parents for damages caused by their
minor children imposed by Article 2180 of the New Civil Code
covers obligations arising from both quasi-delicts and criminal
offenses.'
'The subsidiary liability of parent's arising from the criminal acts
of their minor children who acted with discernment is determined
under the provisions of Article 2180, N.C.C. and under Article
101 of the Revised Penal Code, because to hold that the former
only covers obligations which arise from quasi-delicts and not
obligations which arise from criminal offenses, would result in
the absurdity that while for an act where mere negligence
intervenes the father or mother may stand subsidiarily liable for
the damages caused by his or her son, no liability would attach
if the damage is caused with criminal intent.' (3 SCRA 361-362).
"x x x In the instant case, minor son of herein defendants-
appellees, Wendell Libi somehow got hold of the key to the
drawer where said gun was kept under lock without defendant-
spouses ever knowing that said gun had been missing from that
safety box since 1978 when Wendell Libi ha(d) a picture taken
wherein he proudly displayed said gun and dedicated this
picture to his sweetheart, Julie Ann Gotiong; also since then,
Wendell Libi was said to have kept said gun in his car, in keeping
up with his supposed role of a CANU agent. x x x."
xxx
"Based on the foregoing discussions of the assigned errors, this
Court holds that the lower court was not correct in dismissing
herein plaintiffs-appellants' complaint
because as preponderantly shown by evidence, defendants-
appellees utterly failed to exercise all the diligence of a good
father of the family in preventing their minor son from committing
this crime by means of the gun of defendants-
appellees which was freely accessible to Wendell Libi for they
have not regularly checked whether said gun was still under
lock, but learned that it was missing from the safety deposit box
only after the crime had been committed." (Emphases ours.) [19]
We agree with the conclusion of respondent court that
petitioners should be held liable for the civil liability based on
what appears from all indications was a crime committed by their
minor son. We take this opportunity, however, to digress and
discuss its ratiocination therefor on jurisprudential dicta which
we feel require clarification.
In imposing sanctions for the so-called, vicarious liability of
petitioners, respondent court cites Fuellas vs. Cadano, et
al.[20] which supposedly holds that "(t)he subsidiary liability of
parents for damages caused by their minor children imposed by
Article 2180 of the New Civil Code covers obligations arising
from both quasi-delicts and criminal offenses," followed by an
extended quotation ostensibly from the same case explaining
why under Article 2180 of the Civil Code and Article 101 of the
Revised Penal Code parents should assume subsidiary liability
for damages caused by their minor children. The quoted
passages are set out two paragraphs back, with pertinent
underscoring for purposes of the discussion hereunder.
Now, we do not have any objection to the doctrinal rule holding
the parents liable, but the categorization of their liability as being
subsidiary, and not primary, in nature requires a hard second

look considering previous decisions of this court on the matter
which warrant comparative analyses. Our concern stems from
our readings that if the liability of the parents for crimes or quasi-
delicts of their minor children is subsidiary, then the parents can
neither invoke nor be absolved of civil liability on the defense
that they acted with the diligence of a good father of a family to
prevent damages. On the other hand, if such liability imputed to
the parents is considered direct and primary, that diligence
would constitute a valid and substantial defense.
We believe that the civil liability of parents for quasi-delicts of
their minor children, as contemplated in Article 2180 of the Civil
Code, is primary and not subsidiary. In fact, if we apply Article
2194 of said code which provides for solidary liability of joint
tortfeasors, the persons responsible for the act or omission, in
this case the minor and the father and, in case of his death or
incapacity, the mother, are solidarily liable. Accordingly, such
parental liability is primary and not subsidiary, hence the last
paragraph of Article 2180 provides that "(t)he responsibility
treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good
father of a family to prevent damage."
We are also persuaded that the liability of the parents for felonies
committed by their minor children is likewise primary, not
subsidiary. Article 101 of the Revised Penal Code provides:
"Art. 101. Rules regarding civil liability in certain cases. -
xxx
First. In cases of subdivisions x x x 2, and 3 of Article 12, the
civil liability for acts committed by x x x a person under nine
years of age, or by one over nine but under fifteen years of age,
who has acted without discernment, shall devolve upon those
having such person under their legal authority or control, unless
it appears that there was no fault or negligence on their
part." (Emphases supplied.)[21]
Accordingly, just like the rule in Article 2180 of the Civil Code,
under the foregoing provision the civil liability of the parents for
crimes committed by their minor children is likewise direct and
primary, and also subject to the defense of lack of fault or
negligence on their part, that is, the exercise of the diligence of
a good father of a family.
That in both quasi-delicts and crimes the parents primarily
respond for such damages is buttressed by the corresponding
provisions in both codes that the minor transgressor shall be
answerable or shall respond with his own property only in the
absence or in case of insolvency of the former. Thus, for civil
liability ex quasi delicto of minors, Article 2182 of the Civil Code
states that "(i)f the minor causing damage has no parents or
guardian, the minor x x x shall be answerable with his own
property in an action against him where a guardian ad litem shall
be appointed." For civil liability exdelicto of minors, an
equivalent provision is found in the third paragraph of Article 101
of the Revised Penal Code, to wit:
"Should there be no person having such x x x minor under his
authority, legal guardianship or control, or if such person be
insolvent, said x x x minor shall respond with (his) own property,
30
excepting property exempt from execution, in accordance with
civil law."
The civil liability of parents for felonies committed by their minor
children contemplated in the aforesaid rule in Article 101 of the
Revised Penal Code in relation to Article 2180 of the Civil Code
has, aside from the aforecited case of FueIlas, been the subject
of a number of cases adjudicated by this Court, viz.: Exconde
vs. Capuno, et al.,[22] Araneta vs. Arreglado,[23] Salen, et al. vs.
Balce,[24] Paleyan, etc., et al. vs. Bangkili, et al.,[25] and Elcano,
et al. vs. Hill, et al.[26] Parenthetically, the aforesaid cases were
basically on the issue of the civil liability of parents for crimes
committed by their minor children over 9 but under 15 years of
age, who acted with discernment, and also of minors 15 years
of age or over, since these situations are not covered by Article
101, Revised Penal Code. In both instances, this Court held that
the issue of parental civil liability should be resolved in
accordance with the provisions of Article 2180 of the Civil Code
for the reasons well expressed in Salen and adopted in the
cases hereinbefore enumerated that to hold that the civil liability
under Article 2180 would apply only to quasi-delicts and not to
criminal offenses would result in the absurdity that in an act
involving mere negligence the parents would be liable but not
where the damage is caused with criminal intent. In said cases,
however, there are unfortunate variances resulting in a
regrettable inconsistency in the Court's determination of whether
the liability of the parents, in cases involving either crimes or
quasi-delicts of their minor children, is primary or subsidiary.
In Exconde, where the 15-year old minor was convicted of
double homicide through reckless imprudence, in a separate
civil action arising from the crime the minor and his father were
held jointly and severally liable for failure of the latter to prove
the diligence Of a good father of a family. The same liability in
solidum and, therefore, primary liability was imposed in a
separate civil action in Araneta on the parents and their 14-year
old son who was found guilty of frustrated homicide, but on the
authority of Article 2194 of the Civil Code providing for solidary
responsibility of two or more persons who are liable for a quasi-
delict.
However, in Salen, the father was declared subsidiarily liable for
damages arising from the conviction of his son, who was over
15 but less than 18 years of age, by applying Article 2180 but,
this time, disregarding Article 2194 of the Civil Code. In the
present case, as already explained, the petitioners herein were
also held liable but supposedly in line with Fuellas which
purportedly declared the parents subsidiarily liable for the civil
liability for serious physical injuries committed by their 13-year
old son. On the other hand, in Paleyan, the mother and her 19-
year old son were adjudged solidarity liable for damages arising
from his conviction for homicide by the application of Article
2180 of the Civil Code since this is likewise not covered by
Article 101 of the Revised Penal Code. Finally, in Elcano,
although the son was acquitted in a homicide charge due to "lack
of intent, coupled with mistake," it was ruled that while under
Article 2180 of the Civil Code there should be solidary liability for
damages, since the son, "although married, was living with his
father and getting subsistence from him at the time of the
occurrence," but "is now of age, as a matter of equity" the father
was only held subsidiarily liable.
 31

It bears stressing, however, that the Revised Penal Code
provides for subsidiary liability only for persons
causing damages under the compulsion of irresistible force or
under the impulse of an uncontrollable fear; [27] innkeepers,
tavernkeepers and proprietors of establishments; [28] employers,
teachers, persons and corporations engaged in industry; [29] and
principals, accomplices and accessories for the unpaid civil
liability of their co-accused in the other classes.[30]
In the case at bar, whether the death of the hapless Julie Ann
Gotiong was caused by a felony or a quasi-delict committed by
Wendell Libi, respondent court did not err in holding petitioners
liable for damages arising therefrom. Subject to the preceding
modifications of the premises relied upon by it therefor and on
the bases of the legal imperatives herein explained, we conjoin
in its findings that said petitioners failed to duly exercise the
requisite diligentissimi patris familias to prevent such damages.

Also, coming back to respondent court's reliance on Fuellas in ACCORDINGLY, the instant petition is DENIED and the
its decision in the present case, it is not exactly accurate to say assailed judgment of respondent Court of Appeals is
that Fuellas provided for subsidiary liability of the parents hereby AFFIRMED, with costs against petitioners.
therein. A careful scrutiny shows that what respondent court
quoted verbatim in its decision now on appeal in the present SO ORDERED.
case, and which it attributed to Fuellas, was the syllabus on the
law report of said case which spoke of "subsidiary" liability.
However, such categorization does not specifically appear in the
text of the decision in Fuellas. In fact, after reviewing therein the
cases of Exconde, Araneta and Salen and the discussions in
said cases of Article 101 of the Revised Penal Code in relation
to Article 2180 of the Civil Code, this Court concluded its
decision in this wise.

"Moreover, the case at bar was decided by the Court of Appeals

on the basis of evidence submitted therein by both parties,
independent of the criminal case. And responsibility for fault
or negligence under Article 2176 upon which the present action
was instituted, is entirely separate and distinct from the civil
liability arising from fault or negligence under the Penal Code
(Art. 2177), and having in mind the reasons behind the law as
heretofore stated, any discussion as to the minor's criminal
responsibility is of no moment."

Under the foregoing considerations, therefore, we hereby rule

that the parents are and should be held primarily liable for
the civil liability arising from criminal offenses committed by their
minor children under their legal authority or control, or
who live in their company, unless it is proven that the former
acted with the diligence of a good father of a family to prevent
such damages. That primary liability is premised on the
provisions of Article 101 of the Revised Penal Code with respect
to damages ex delicto caused by their children 9 years of age or
under, or over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under
15 years of age who acted with discernment, or 15 years or over
but under 21 years of age, such primary liability shall be imposed
pursuant to Article 2180 of the Civil Code.[31]

Under said Article 2180, the enforcement of such liability shall

be effected against the father and, in case of his death or
incapacity, the mother. This was amplified by the Child and
Youth Welfare Code which provides that the same shall devolve
upon the father and, in case of his death or incapacity, upon the
mother or, in case of her death or incapacity, upon the guardian,
but the liability may also be voluntarily assumed by a relative or
family friend of the youthful offender.[32] However, under the
Family Code, this civil liability is now, without such alternative
qualification, the responsibility of the parents and those who
exercise parental authority over the minor offender. [33] For civil
liability arising from quasi-delicts committed by minors, the
same rules shall apply in accordance with Articles 2180 and
2182 of the Civil Code, as so modified.