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VOL. 138, SEPTEMBER 13, 1985 553

Vasquez vs. Court of Appeals

No. L-42926. September 13, 1985.*

PEDRO VASQUEZ, SOLEDAD ORTEGA, CLETO B.

BAGAIPO, AGUSTINA VIRTUDES, ROMEO VASQUEZ
and MAXIMINA CAINAY, petitioners, vs. THE COURT OF
APPEALS and FILIPINAS PIONEER LINES, INC.,
respondents.

Torts; Common Carriers; Damages; Elements to consider in

sustaining a case of “caso fortuito.”—Upon the evidence and the
applicable law, we sustain the trial Court. “To constitute a caso
fortuito that would exempt a person from responsibility, it is
necessary that (1) the event must be independent of the human
will; (2) the occurrence must render it impossible for the debtor to
fulfill the obligation in a normal manner; and that (3) the obligor
must be free of participation in, or aggravation of, the injury to
the creditor.” In the language of the law, the event must have
been impossible to foresee, or if it could be foreseen, must have
been impossible to avoid. There must be an entire exclusion of
human agency from the cause of injury or loss.
Same; Same; Same; There is no “caso fortuito” where a ship
captain proceeded en route despite a typhoon advice close to the
area where vessel will pass.—Under the circumstances, while,
indeed, the typhoon was an inevitable occurrence, yet, having
been kept posted on the course of the typhoon by weather
bulletins at intervals of six hours, the captain and crew were well
aware of the risk they were taking as they hopped from island to
island from Romblon up to Tanguingui. They held frequent
conferences, and oblivious of the utmost diligence required of very
cautious persons, they decided to take a calculated risk. In so
doing, they failed to observe that extraordinary diligence required
of them explicitly by law for the safety of the passengers
transported by them with due regard for all circumstances and
unnecessarily exposed the vessel and passengers to the tragic
mishap. They failed to overcome that presumption of fault or
negligence that arises in cases of death or injures to passengers.

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Same; Same; Same; Board of Marine Inquiry’s conclusion that

ship captain was not negligent is not binding on the Court where
said finding is not complete.—While the Board of Marine Inquiry,
which investigated the disaster, exonerated the captain from any

__________________

* FIRST DIVISION.

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Vasquez vs. Court of Appeals

negligence, it was because it had considered the question of

negligence as “moot and academic,” the captain having “lived up
to the true tradition of the profession.” While we are bound by the
Board’s factual findings, we disagree with its conclusion since it
obviously had not taken into account the legal responsibility of a
common carrier towards the safety of the passengers involved.
Same; Same; Same; Liability of shipowner extends to value of
vessel and insurance proceeds thereon.—With respect to private
respondent’s submission that the total loss of the vessel
extinguished its liability pursuant to Article 587 of the Code of
Commerce as construed in Yangco vs. Laserna, 73 Phil. 330
[1941], suffice it to state that even in the cited case, it was held
that the liability of a shipowner is limited to the value of the
vessel or to the insurance thereon. Despite the total loss of the
vessel therefore, its insurance answers for the damages that a
shipowner or agent may be held liable for by reason of the death
of its passengers.

PETITION to review the judgment of the Court of Appeals.

The facts are stated in the opinion of the Court.

     Emilio D. Castellanes for petitioners.
     Apolinario A. Abantao for private respondents.

MELENCIO-HERRERA, J.:

This litigation involves a claim for damages for the loss at

sea of petitioners’ respective children after the shipwreck of
MV Pioneer Cebu due to typhoon “Klaring” in May of 1966.
The factual antecedents, as summarized by the trial
Court and adopted by respondent Court, and which we find
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supported by the record, read as follows:

“When the interisland vessel MV ‘Pioneer Cebu’ left the Port of

Manila in the early morning of May 15, 1966 bound for Cebu, it
had on board the spouses Alfonso Vasquez and Filipinas Bagaipo
and a four-year old boy, Mario Marlon Vasquez, among her
passengers. The MV ‘Pioneer Cebu’ encountered typhoon ‘Klaring’
and struck a reef on the southern part of Malapascua Island,
located somewhere north of the island of Cebu and subsequently
sunk. The aforementioned passengers were unheard from since
then.

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Vasquez vs. Court of Appeals

Plaintiffs Pedro Vasquez and Soledad Ortega are the parents of

Alfonso Vasquez; plaintiffs Cleto Bagaipo and Agustina Virtudes
are the parents of Filipinas Bagaipo; and plaintiffs Romeo
Vasquez and Maximina Cainay are the parents of the child, Mario
Marlon Vasquez. They seek the recovery of damages due to the
loss of Alfonso Vasquez, Filipinas Bagaipo and Mario Marlon
Vasquez during said voyage.
At the pre-trial, the defendant admitted its contract of carriage
with Alfonso Vasquez, Filipinas Bagaipo and Mario Marlon
Vasquez, and the fact of the sinking of the MV ‘Pioneer Cebu’. The
issues of the case were limited to the defenses alleged by the
defendant that the sinking of the vessel was caused by force
majeure, and that the defendant’s liability had been extinguished
by the total loss of the vessel.
The evidence on record as to the circumstances of the last
voyage of the MV ‘Pioneer Cebu’ came mainly, if not exclusively,
from the defendant. The MV ‘Pioneer Cebu’ was owned and
operated by the defendant and used in the transportation of goods
and passengers in the interisland shipping. Scheduled to leave
the Port of Manila at 9:00 p.m. on May 14, 1966, it actually left
port at 5:00 a.m. the following day, May 15, 1966. It had a
passenger capacity of three hundred twenty-two (322) including
the crew. It undertook the said voyage on a special permit issued
by the Collector of Customs inasmuch as, upon inspection, it was
found to be without an emergency electrical power system. The
special permit authorized the vessel to carry only two hundred
sixty (260) passengers due to the said deficiency and for lack of
safety devices for 322 passengers (Exh. 2). A headcount was made
of the passengers on board, resulting on the tallying of 168 adults
and 20 minors, although the passengers manifest only listed 106
passengers. It has been admitted, however, that the headcount is

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not reliable inasmuch as it was only done by one man on board

the vessel.
When the vessel left Manila, its officers were already aware of
the typhoon Klaring building up somewhere in Mindanao. There
being no typhoon signals on the route from Manila to Cebu, and
the vessel having been cleared by the Customs authorities, the
MV ‘Pioneer Cebu’ left on its voyage to Cebu despite the typhoon.
When it reached Romblon Island, it was decided not to seek
shelter thereat, inasmuch as the weather condition was still good.
After passing Romblon and while near Jintotolo island, the
barometer still indicated the existence of good weather condition
continued until the vessel approached Tanguingui island. Upon
passing the latter island,

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Vasquez vs. Court of Appeals

however, the weather suddenly changed and heavy rains fell.

Fearing that due to zero visibility, the vessel might hit Chocolate
island group, the captain ordered a reversal of the course so that
the vessel could ‘weather out’ the typhoon by facing the winds and
the waves in the open. Unfortunately, at about noontime on May
16, 1966, the vessel struck a reef near Malapascua island,
sustained leaks and eventually sunk, bringing with her Captain
Floro Yap who was in command of the vessel.”

Due to the loss of their children, petitioners sued for

damages before the Court of First Instance of Manila (Civil
Case No. 67139). Respondent defended on the plea of force
ma-jeure, and the extinction of its liability by the actual
total loss of the vessel.
After proper proceedings, the trial Court awarded
damages, thus:

“WHEREFORE, judgment is hereby rendered ordering the

defendant to pay:

(a) Plaintiffs Pedro Vasquez and Soledad Ortega the sums of

P15,000.00 for the loss of earning capacity of the deceased
Alfonso Vasquez, P2,100.00 for support, and P10,000.00
for moral damages;
(b) Plaintiffs Cleto B. Bagaipo and Agustina Virtudes the sum
of P17,000.00 for loss of earning capacity of deceased
Filipinas Bagaipo, and P10,00.00 for moral damages; and
(c) Plaintiffs Romeo Vasquez and Maximina Cainay the sum
of P10,000.00 by way of moral damages by reason of the
death of Mario Marlon Vasquez.
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On appeal, respondent Court reversed the aforementioned

judgment and absolved private respondent from any and
all liability.
Hence, this Petition for Review on Certiorari, the basic
issue being the liability for damages of private respondent
for the presumptive death of petitioners’ children.
The trial Court found the defense of caso fortuito
untenable due to various decisive factors, thus:

“x x x It is an admitted fact that even before the vessel left on its

last voyage, its officers and crew were already aware of the

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Vasquez vs. Court of Appeals

typhoon brewing somewhere in the same general direction to

which the vessel was going. The crew of the vessel took a
calculated risk when it proceeded despite the typhoon advisory.
This is quite evident from the fact that the officers of the vessel
had to conduct conferences amongst themselves to decide whether
or not to proceed. The crew assumed a greater risk when, instead
of seeking shelter in Romblon and other islands the vessel passed
enroute, they decided to take a change on the expected
continuation of the good weather the vessel was encountering,
and the possibility that the typhoon would veer to some other
directions. The eagerness of the crew of the vessel to proceed on
its voyage and to arrive at its destination is readily
understandable. It is undeniably lamentable, however, that they
did so at the risk of the lives of the passengers on board.”

Contrariwise, respondent Appellate Court believed that the

calamity was caused solely and proximately by fortuitous
event which not even extraordinary diligence of the highest
degree could have guarded against; and that there was no
negligence on the part of the common carrier in the
discharge of its duties.
Upon the evidence and the applicable law, we sustain
the trial Court. “To constitute a caso fortuito that would
exempt a person from responsibility, it is necessary that (1)
the event must be independent of the human will; (2) the
occurrence must render it impossible for the debtor to fulfill
the obligation in a normal manner; and that (3) the obligor
must be free of participation
1
in, or aggravation of, the
injury to the creditor.” In the language of the law, the
event must have been impossible to foresee, or2 if it could be
foreseen, must have been impossible to avoid. There must
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be an entire exclusion
3
of human agency from the cause of
injury or loss.
Turning to this case, before they sailed from the port of
Manila, the officers and crew were aware of typhoon
“Klaring” that was reported building up at 260 kms. east of
Surigao. In fact, they had lashed all the cargo in the hold
before sailing in

____________________

1 Lasam vs. Smith, 45 Phil. 657, 661 [1924]; Austria vs. Court of
Appeals, 39 SCRA 527 [1971].
2 Art. 1174, Civil Code; Lasam vs. Smith, 45 Phil. 657 [1924].
3 Tolentino, Commentaries on the Civil Code, Vol. V, p. 252.

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Vasquez vs. Court of Appeals

4
anticipation of strong winds and rough waters. They
proceeded on their way, as did other vessels that day. Upon
reaching Romblon, they received the weather report that
the typhoon was 154 kms. east 5
southeast of Tacloban and
was moving west northwest. Since they were still not
within the radius of the typhoon and the weather was
clear, they deliberated and decided to proceed with the
course. At Jintotolo Island, the typhoon was 6
already
reported to be reaching the mainland of Samar. They still
decided to proceed noting that the weather was still “good”
although, according to the Chief Forecaster of the Weather
7
Bureau, they were already within the typhoon zone. At
Tanguingui Island, about 2:00 A.M. of May 16, 1966, the
typhoon was in an area quite close to Catbalogan, placing
Tanguingui also within the typhoon zone. Despite
knowledge of that fact, they again decided to proceed
relying on the forecast that the typhoon8
would weaken
upon crossing the mainland of Samar. After about half an
hour of navigation towards Chocolate Island, there was a
sudden fall of the barometer accompanied by heavy
downpour, big waves, and zero visibility. The Captain of
the vessel decided to reverse course and face the waves in
the open sea but because the visibility did not improve they
were in total darkness and, as a consequence, the vessel
ran aground a reef and sank on May 16, 1966 around 12:45
P.M. near Malapascua Island somewhere north of the
island of Cebu.

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Under the circumstances, while, indeed, the typhoon

was an inevitable occurrence, yet, having been kept posted
on the course of the typhoon by weather bulletins at
intervals of six hours, the captain and crew were well
aware of the risk they were taking as they hopped from
island to island from Romblon up to Tanguingui. They held
frequent conferences, and oblivious9 of the utmost diligence
required of very cautious persons, they decided to take a
calculated risk. In so doing,

________________

4 T.s.n., August 8, 1967, p. 22.

5 Domestic Bulletin No. 16 of the Weather Bureau.
6 Domestic Bulletin No. 17.
7 T.s.n., December 15, 1967, p. 21.
8 Domestic Bulletin No. 18.
9 Arts. 1755, 1756, Civil Code.

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Vasquez vs. Court of Appeals

they failed to observe that extraordinary diligence required

of them explicitly by law for the safety of the passengers 10
transported by them with due regard for all circumstances
and unnecessarily exposed the vessel and passengers to the
tragic mishap. They failed to overcome that presumption of
fault or negligence
11
that arises in cases of death or injuries
to passengers.
While the Board of Marine Inquiry, which investigated
the disaster, exonerated the captain from any negligence, it
was because it had considered the question of negligence as
“moot and academic,” the captain having “lived up to the
true tradition of the profession.” While we are bound by the
Board’s factual findings, we disagree with its conclusion
since it obviously had not taken into account the legal
responsibility of a common carrier towards the safety of the
passengers involved.
With respect to private respondent’s submission that the
total loss of the vessel extinguished its liability
12
pursuant to
Article 587 of the Code of Commerce as construed in
Yangco vs. Laserna, 73 Phil. 330 [1941], suffice it to state
that even in the cited case, it was held that the liability of a
shipowner is limited to the value of the vessel or to the
insurance thereon. Despite the total loss of the vessel
therefore, its insurance answers for the damages that a
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shipowner or agent may be held liable for by reason of the

death of its passengers.
WHEREFORE, the appealed judgment is hereby
REVERSED and the judgment of the then Court of First
Instance of Manila, Branch V, in Civil Case No. 67139, is
hereby reinstated No costs.
SO ORDERED.

_________________

10 Art. 1733, ibid.

11 Art. 1756, ibid.
12 “Art. 587. The ship agent shall also be civilly liable for the
indemnities in favor of third persons which may arise from the conduct of
the captain in the vigilance over the goods which the vessel carried; but he
may exempt himself therefrom by abandoning the vessel with all her
equipments and the freight he may have earned during the voyage.”

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Arcilla vs. Arcilla

          Teehankee (Chairman), Plana, Relova, Gutierrez,

Jr., De la Fuente and Patajo, JJ., concur.

Judgment reversed.

——o0o——

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