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 decision 1 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, DefendantsAppellants," 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 employeremployee 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 on certiorari.
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 bylaws 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 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.
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." 25 Scouring 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. 27 Candidness, 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. 35This, 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 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. 43These 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
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. 53However, 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. 57A pilot 57 should have a thorough knowledge of general
and local regulations and physical 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 sandbars, 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. 62 Those 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; 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?
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.
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.
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 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 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. 90 Except 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
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
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 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 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. 115286 August 11, 1994
INTER-ORIENT MARITIME ENTERPRISES, INC., SEA HORSE SHIP, INC. and TRENDA WORLD SHIPPING
(MANILA), INC., petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION and RIZALINO D. TAYONG, respondents.
Marilyn Cacho-Naoe for petitioners.
Wilfred L. Pascasio for private respondent.

FELICIANO, J.:
Private respondent Captain Rizalino Tayong, a licensed Master Mariner with experience in commanding ocean-going vessels,
was employed on 6 July 1989 by petitioners Trenda World Shipping (Manila), Inc. and Sea Horse Ship Management, Inc.
through petitioner Inter-Orient Maritime Enterprises, Inc. as Master of the vessel M/VOceanic Mindoro, for a period of one (1)
year, as evidenced by an employment contract. On 15 July 1989, Captain Tayong assumed command of petitioners' vessel at the
port of Hongkong. His instructions were to replenish bunker and diesel fuel, to sail forthwith to Richard Bay, South Africa, and
there to load 120,000 metric tons of coal.
On 16 July 1989, while at the Port of Hongkong and in the process of unloading cargo, Captain Tayong received a weather
report that a storm code-named "Gordon" would shortly hit Hongkong. Precautionary measures were taken to secure the safety
of the vessel, as well as its crew, considering that the vessel's turbo-charger was leaking and the vessel was fourteen (14) years
old.
On 21 July 1989, Captain Tayong followed-up the requisition by the former captain of the Oceanic Mindoro for supplies of
oxygen and acetylene, necessary for the welding-repair of the turbo-charger and the economizer. 1This requisition had been made
upon request of the Chief Engineer of the vessel and had been approved by the shipowner. 2
On 25 July 1989, the vessel sailed from Hong Kong for Singapore. In the Master's sailing message, Captain Tayong reported a
water leak from M.E. Turbo Charger No. 2 Exhaust gas casing. He was subsequently instructed to blank off the cooling water
and maintain reduced RPM unless authorized by the owners. 3
On 29 July 1989, while the vessel was en route to Singapore, Captain Tayong reported that the vessel had stopped in mid-ocean
for six (6) hours and forty-five (45) minutes due to a leaking economizer. He was instructed to shut down the economizer and
use the auxiliary boiler instead. 4

On 31 July 1989 at 0607 hrs., the vessel arrived at the port of Singapore. 5 The Chief Engineer reminded Captain Tayong that the
oxygen and acetylene supplies had not been delivered. 6 Captain Tayong inquired from the ship's agent in Singapore about the supplies.
The ship agent stated that these could only be delivered at 0800 hours on August 1, 1989 as the stores had closed. 7
Captain Tayong called the shipowner, Sea Horse Ship Management, Ltd., in London and informed them that the departure of the
vessel for South Africa may be affected because of the delay in the delivery of the supplies. 8
Sea Horse advised Captain Tayong to contact its Technical Director, Mr. Clark, who was in Tokyo and who could provide a
solution for the supply of said oxygen and acetylene. 9
On the night of 31 July 1989, Mr. Clark received a call from Captain Tayong informing him that the vessel cannot sail without
the oxygen and acetylene for safety reasons due to the problems with the turbo charger and economizer. Mr. Clark responded
that by shutting off the water to the turbo chargers and using the auxiliary boiler, there should be no further problems.
According to Mr. Clark, Captain Tayong agreed with him that the vessel could sail as scheduled on 0100 hours on 1 August
1989 for South Africa. 10
According to Captain Tayong, however, he communicated to Sea Horse his reservations regarding proceeding to South Africa
without the requested supplies, 11 and was advised by Sea Horse to wait for the supplies at 0800 hrs. of 1 August 1989, which Sea
Horse had arranged to be delivered on board the Oceanic Mindoro. 12 At 0800 hours on 1 August 1989, the requisitioned supplies were
delivered and Captain Tayong immediately sailed for Richard Bay.
When the vessel arrived at the port of Richard Bay, South Africa on 16 August 1989, Captain Tayong was instructed to turnover his post to the new captain. He was thereafter repatriated to the Philippines, after serving petitioners for a little more than
two weeks. 13 He was not informed of the charges against him. 14
On 5 October 1989, Captain Tayong instituted a complaint for illegal dismissal before the Philippine Overseas Employment
Administration ("POEA"), claiming his unpaid salary for the unexpired portion of the written employment contract, plus
attorney's fees.
Petitioners, in their answer to the complaint, denied that they had illegally dismissed Captain Tayong. Petitioners alleged that he
had refused to sail immediately to South Africa to the prejudice and damage of petitioners. According to petitioners, as a direct
result of Captain Tayong's delay, petitioners' vessel was placed "off-hire" by the charterers for twelve (12) hours. This meant
that the charterers refused to pay the charter hire or compensation corresponding to twelve (12) hours, amounting to
US$15,500.00, due to time lost in the voyage. They stated that they had dismissed private respondent for loss of trust and
confidence.
The POEA dismissed Captain Tayong's complaint and held that there was valid cause for his untimely repatriation. The decision
of the POEA placed considerable weight on petitioners' assertion that all the time lost as a result of the delay was caused by
Captain Tayong and that his concern for the oxygen and acetylene was not legitimate as these supplies were not necessary or
indispensable for running the vessel. The POEA believed that the Captain had unreasonably refused to follow the instructions of
petitioners and their representative, despite petitioners' firm assurances that the vessel was seaworthy for the voyage to South
Africa.
On appeal, the National Labor Relations Commission ("NLRC") reversed and set aside the decision of the POEA. The NLRC
found that Captain Tayong had not been afforded an opportunity to be heard and that no substantial evidence was adduced to
establish the basis for petitioners' loss of trust or confidence in the Captain. The NLRC declared that he had only acted in
accordance with his duties to maintain the seaworthiness of the vessel and to insure the safety of the ship and the crew. The
NLRC directed petitioners to pay the Captain (a) his salary for the unexpired portion of the contract at US$1,900.00 a month,
plus one (1) month leave benefit; and (b) attorney's fees equivalent to ten percent (10%) of the total award due.
Petitioners, before this Court, claim that the NLRC had acted with grave abuse of discretion. Petitioners allege that they had
adduced sufficient evidence to establish the basis for private respondent's discharge, contrary to the conclusion reached by the

NLRC. Petitioners insist that Captain Tayong, who must protect the interest of petitioners, had caused them unnecessary
damage, and that they, as owners of the vessel, cannot be compelled to keep in their employ a captain of a vessel in whom they
have lost their trust and confidence. Petitioners finally contend that the award to the Captain of his salary corresponding to the
unexpired portion of the contract and one (1) month leave pay, including attorney's fees, also constituted grave abuse of
discretion.
The petition must fail.
We note preliminarily that petitioners failed to attach a clearly legible, properly certified, true copy of the decision of the NLRC
dated 23 April 1994, in violation of requirement no. 3 of Revised Circular No. 1-88. On this ground alone, the petition could
have been dismissed. But the Court chose not to do so, in view of the nature of question here raised and instead required private
respondent to file a comment on the petition. Captain Tayong submitted his comment. The Office of the Solicitor General asked
for an extension of thirty (30) days to file its comment on behalf of the NLRC. We consider that the Solicitor General's
comment may be dispensed with in this case.
It is well settled in this jurisdiction that confidential and managerial employees cannot be arbitrarily dismissed at any time, and
without cause as reasonably established in an appropriate investigation. 15 Such employees, too, are entitled to security of tenure,
fair standards of employment and the protection of labor laws.
The captain of a vessel is a confidential and managerial employee within the meaning of the above doctrine. A master or
captain, for purposes of maritime commerce, is one who has command of a vessel. A captain commonly performs three (3)
distinct roles: (1) he is a general agent of the shipowner; (2) he is also commander and technical director of the vessel; and (3)
he is a representative of the country under whose flag he navigates.16 Of these roles, by far the most important is the role performed
by the captain as commander of the vessel; for such role (which, to our mind, is analogous to that of "Chief Executive Officer" [CEO]
of a present-day corporate enterprise) has to do with the operation and preservation of the vessel during its voyage and the protection
of the passengers (if any) and crew and cargo. In his role as general agent of the shipowner, the captain has authority to sign bills of
lading, carry goods aboard and deal with the freight earned, agree upon rates and decide whether to take cargo. The ship captain, as
agent of the shipowner, has legal authority to enter into contracts with respect to the vessel and the trading of the vessel, subject to
applicable limitations established by statute, contract or instructions and regulations of the shipowner. 17 To the captain is committed
the governance, care and management of the vessel. 18 Clearly, the captain is vested with both management and fiduciary functions.
It is plain from the records of the present petition that Captain Tayong was denied any opportunity to defend himself. Petitioners
curtly dismissed him from his command and summarily ordered his repatriation to the Philippines without informing him of the
charge or charges levelled against him, and much less giving him a chance to refute any such charge. In fact, it was only on 26
October 1989 that Captain Tayong received a telegram dated 24 October 1989 from Inter-Orient requiring him to explain why
he delayed sailing to South Africa.
We also find that the principal contention of petitioners against the decision of the NLRC pertains to facts, that is, whether or
not there was actual and sufficient basis for the alleged loss of trust or confidence. We have consistently held that a question of
"fact" is, as a general rule, the concern solely of an administrative body, so long as there is substantial evidence of record to
sustain its action.
The record requires us to reject petitioners' claim that the NLRC's conclusions of fact were not supported by substantial
evidence. Petitioners rely on self-serving affidavits of their own officers and employees predictably tending to support
petitioners' allegation that Captain Tayong had performed acts inimical to petitioners' interests for which, supposedly, he was
discharged. The official report of Mr. Clark, petitioners' representative, in fact supports the NLRC's conclusion that private
respondent Captain did not arbitrarily and maliciously delay the voyage to South Africa. There had been, Mr. Clark stated, a
disruption in the normal functioning of the vessel's turbo-charger 19 and economizer and that had prevented the full or regular
operation of the vessel. Thus, Mr. Clark relayed to Captain Tayong instructions to "maintain reduced RPM" during the voyage to
South Africa, instead of waiting in Singapore for the supplies that would permit shipboard repair of the malfunctioning machinery and
equipment.

More importantly, a ship's captain must be accorded a reasonable measure of discretionary authority to decide what the safety of
the ship and of its crew and cargo specifically requires on a stipulated ocean voyage. The captain is held responsible, and
properly so, for such safety. He is right there on the vessel, in command of it and (it must be presumed) knowledgeable as to the
specific requirements of seaworthiness and the particular risks and perils of the voyage he is to embark upon. The applicable
principle is that the captain has control of all departments of service in the vessel, and reasonable discretion as to its
navigation. 20 It is the right and duty of the captain, in the exercise of sound discretion and in good faith, to do all things with respect
to the vessel and its equipment and conduct of the voyage which are reasonably necessary for the protection and preservation of the
interests under his charge, whether those be of the shipowners, charterers, cargo owners or of underwriters. 21 It is a basic principle of
admiralty law that in navigating a merchantman, the master must be left free to exercise his own best judgment. The requirements of
safe navigation compel us to reject any suggestion that the judgment and discretion of the captain of a vessel may be confined within a
straitjacket, even in this age of electronic communications. 22 Indeed, if the ship captain is convinced, as a reasonably prudent and
competent mariner acting in good faith that the shipowner's or ship agent's instructions (insisted upon by radio or telefax from their
offices thousands of miles away) will result, in the very specific circumstances facing him, in imposing unacceptable risks of loss or
serious danger to ship or crew, he cannot casually seek absolution from his responsibility, if a marine casualty occurs, in such
instructions. 23
Compagnie de Commerce v. Hamburg 24 is instructive in this connection. There, this Court recognized the discretionary authority of
the master of a vessel and his right to exercise his best judgment, with respect to navigating the vessel he commands. In Compagnie de
Commerce, a charter party was executed between Compagnie de Commerce and the owners of the vessel Sambia, under which the
former as charterer loaded on board the Sambia, at the port of Saigon, certain cargo destined for the Ports of Dunkirk and Hamburg in
Europe. The Sambia, flying the German flag, could not, in the judgment of its master, reach its ports of destination because war
(World War I) had been declared between Germany and France. The master of the Sambia decided to deviate from the stipulated
voyage and sailed instead for the Port of Manila. Compagnie de Commerce sued in the Philippines for damages arising from breach of
the charter party and unauthorized sale of the cargo. In affirming the decision of the trial court dismissing the complaint, our Supreme
Court held that the master of the Sambiahad reasonable grounds to apprehend that the vessel was in danger of seizure or capture by the
French authorities in Saigon and was justified by necessity to elect the course which he took i.e., to flee Saigon for the Port of
Manila with the result that the shipowner was relieved from liability for the deviation from the stipulated route and from liability
for damage to the cargo. The Court said:
The danger from which the master of the Sambia fled was a real and not merely an imaginary one as counsel
for shipper contends. Seizure at the hands of an "enemy of the King" though not inevitable, was a possible
outcome of a failure to leave the port of Saigon; and we cannot say that under the conditions existing at the
time when the master elected to flee from that port, there were no grounds for a "reasonable apprehension of
danger" from seizure by the French authorities, and therefore no necessity for flight.
The word "necessity" when applied to mercantile affairs, where the judgment must in the nature of things be
exercised, cannot, of course, mean an irresistible compelling power. What is meant by it in such cases is the
force of circumstances which determine the course a man ought to take. Thus,where by the force of
circumstances, a man has the duty cast upon him of taking some action for another, and under that obligation
adopts a course which, to the judgment of a wise and prudent man, is apparently the best for the interest of the
persons for whom he acts in a given emergency, it may properly be said of the course so taken that it was in a
mercantile sense necessary to take it. 25(Emphasis supplied)
Compagnie de Commerce contended that the shipowner should, at all events, be held responsible for the deterioration in the
value of the cargo incident to its long stay on board the vessel from the date of its arrival in Manila until the cargo was sold. The
Supreme Court, in rejecting this contention also, declared that:
But it is clear that the master could not be required to act on the very day of his arrival; or before he had a
reasonable opportunity to ascertain whether he could hope to carry out his contract and earn his freight; and
that he should not be held responsible for a reasonable delay incident to an effort to ascertain the wishes of the
freighter, and upon failure to secure prompt advice, to decide for himself as to the course which he should
adopt to secure the interests of the absent owner of the property aboard the vessel.

The master is entitled to delay for such a period as may be reasonable under the circumstances, before
deciding on the course he will adopt. He may claim a fair opportunity of carrying out a contract, and earning
the freight, whether by repairing or transhipping. Should the repair of the ship be undertaken, it must be
proceeded with diligently; and if so done, the freighter will have no ground of complaint, although the
consequent delay be a long one, unless, indeed, the cargo is perishable, and likely to be injured by the delay.
Where that is the case, it ought to be forwarded, or sold, or given up, as the case may be, without waiting for
repairs.
A shipowner or shipmaster (if communication with the shipowner is impossible), will be allowed a reasonable
time in which to decide what course he will adopt in such cases as those under discussion; time must be
allowed to him to ascertain the facts, and to balance the conflicting interests involved, of shipowner, cargo
owner, underwriter on ship and freight. But once the time has elapsed, he is bound to act promptly according
as he has elected either to repair, or abandon the voyage, or tranship. If he delays, and owing to that delay a
perishable cargo suffers damage, the shipowner will be liable for that damage; he cannot escape that obligation
by pleading the absence of definite instructions from the owners of the cargo or their underwriters, since he has
control of the cargo and is entitled to elect. 26 (Emphasis supplied)
The critical question, therefore, is whether or not Captain Tayong had reasonable grounds to believe that the safety of the vessel
and the crew under his command or the possibility of substantial delay at sea required him to wait for the delivery of the
supplies needed for the repair of the turbo-charger and the economizer before embarking on the long voyage from Singapore to
South Africa.
In this connection, it is specially relevant to recall that, according to the report of Mr. Robert Clark, Technical Director of
petitioner Sea Horse Ship Management, Inc., the Oceanic Mindoro had stopped in mid-ocean for six (6) hours and forty-five
(45) minutes on its way to Singapore because of its leaking economizer. 27 Equally relevant is the telex dated 2 August 1989 sent by
Captain Tayong to Sea Horse after Oceanic Mindoro had left Singapore and was en route to South Africa. In this telex, Captain
Tayong explained his decision to Sea Horse in the following terms:
I CAPT. R.D. TAYONG RE: UR PROBLEM IN SPORE (SINGAPORE) I EXPLAIN AGN TO YOU THAT
WE ARE INSECURITY/DANGER TO SAIL IN SPORE W/OUT HAVING SUPPLY OF OXY/ACET. PLS
UNDERSTAND HV PLENTY TO BE DONE REPAIR FM MAIN ENGINE LIKE TURBO CHARGER
PIPELINE, ECONOMIZER LEAKAGE N ETC WE COULD NOT FIX IT W/OUT OXY/ACET ONBOARD. I
AND MR. CLARK WE CONTACTED EACH OTHER BY PHONE IN PAPAN N HE ADVSED US TO
SAIL TO RBAY N WILL SUPPLY OXY/ACET UPON ARRIVAL RBAY HE ALSO EXPLAINED TO MY
C/E HOW TO FIND THE REMEDY W/OUT OXY/ACET BUT C/E HE DISAGREED MR. CLARK IDEA,
THAT IS WHY WE URG REQUEST[ED] YR KIND OFFICE TO ARRANGE SUPPLY OXY/ACET
BEFORE SAILING TO AVOID RISK/DANGER OR DELAY AT SEA N WE TOOK PRECAUTION UR TRIP
FOR 16 DAYS FM SPORE TO RBAY. PLS. UNDERSTAND UR SITUATION. 28 (Emphasis partly in source and
partly supplied)
Under all the circumstances of this case, we, along with the NLRC, are unable to hold that Captain Tayong's decision (arrived at
after consultation with the vessel's Chief Engineer) to wait seven (7) hours in Singapore for the delivery on board the Oceanic
Mindoro of the requisitioned supplies needed for the welding-repair, on board the ship, of the turbo-charger and the economizer
equipment of the vessel, constituted merely arbitrary, capricious or grossly insubordinate behavior on his part. In the view of the
NLRC, that decision of Captain Tayong did not constitute a legal basis for the summary dismissal of Captain Tayong and for
termination of his contract with petitioners prior to the expiration of the term thereof. We cannot hold this conclusion of the
NLRC to be a grave abuse of discretion amounting to an excess or loss of jurisdiction; indeed, we share that conclusion and
make it our own.
Clearly, petitioners were angered at Captain Tayong's decision to wait for delivery of the needed supplies before sailing from
Singapore, and may have changed their estimate of their ability to work with him and of his capabilities as a ship captain.

Assuming that to be petitioners' management prerogative, that prerogative is nevertheless not to be exercised, in the case at bar,
at the cost of loss of Captain Tayong's rights under his contract with petitioners and under Philippine law.
ACCORDINGLY, petitioners having failed to show grave abuse of discretion amounting to loss or excess of jurisdiction on the
part of the NLRC in rendering its assailed decision, the Petition for Certiorari is hereby DISMISSED, for lack of merit. Costs
against petitioners.
G.R. No. 114167 July 12, 1995
COASTWISE LIGHTERAGE CORPORATION, petitioner,
vs.
COURT OF APPEALS and the PHILIPPINE GENERAL INSURANCE COMPANY, respondents.
RESOLUTION

FRANCISCO, R., J.:

This is a petition for review of a Decision rendered by the Court of Appeals, dated December 17, 1993, affirming Branch 35 of
the Regional Trial Court, Manila in holding that herein petitioner is liable to pay herein private respondent the amount of
P700,000.00, plus legal interest thereon, another sum of P100,000.00 as attorney's fees and the cost of the suit.
The factual background of this case is as follows:
Pag-asa Sales, Inc. entered into a contract to transport molasses from the province of Negros to Manila with Coastwise
Lighterage Corporation (Coastwise for brevity), using the latter's dumb barges. The barges were towed in tandem by the tugboat
MT Marica, which is likewise owned by Coastwise.
Upon reaching Manila Bay, while approaching Pier 18, one of the barges, "Coastwise 9", struck an unknown sunken object. The
forward buoyancy compartment was damaged, and water gushed in through a hole "two inches wide and twenty-two inches
long" 1 As a consequence, the molasses at the cargo tanks were contaminated and rendered unfit for the use it was intended. This
prompted the consignee, Pag-asa Sales, Inc. to reject the shipment of molasses as a total loss. Thereafter, Pag-asa Sales, Inc. filed a
formal claim with the insurer of its lost cargo, herein private respondent, Philippine General Insurance Company (PhilGen, for short)
and against the carrier, herein petitioner, Coastwise Lighterage. Coastwise Lighterage denied the claim and it was PhilGen which paid
the consignee, Pag-asa Sales, Inc., the amount of P700,000.00, representing the value of the damaged cargo of molasses.
In turn, PhilGen then filed an action against Coastwise Lighterage before the Regional Trial Court of Manila, seeking to recover
the amount of P700,000.00 which it paid to Pag-asa Sales, Inc. for the latter's lost cargo. PhilGen now claims to be subrogated
to all the contractual rights and claims which the consignee may have against the carrier, which is presumed to have violated the
contract of carriage.
The RTC awarded the amount prayed for by PhilGen. On Coastwise Lighterage's appeal to the Court of Appeals, the award was
affirmed.
Hence, this petition.
There are two main issues to be resolved herein. First, whether or not petitioner Coastwise Lighterage was transformed into a
private carrier, by virtue of the contract of affreightment which it entered into with the consignee, Pag-asa Sales, Inc.
Corollarily, if it were in fact transformed into a private carrier, did it exercise the ordinary diligence to which a private carrier is
in turn bound? Second, whether or not the insurer was subrogated into the rights of the consignee against the carrier, upon
payment by the insurer of the value of the consignee's goods lost while on board one of the carrier's vessels.

On the first issue, petitioner contends that the RTC and the Court of Appeals erred in finding that it was a common carrier. It
stresses the fact that it contracted with Pag-asa Sales, Inc. to transport the shipment of molasses from Negros Oriental to Manila
and refers to this contract as a "charter agreement". It then proceeds to cite the case of Home Insurance Company vs. American
Steamship Agencies, Inc. 2 wherein this Court held: ". . . a common carrier undertaking to carry a special cargo or chartered to a
special person only becomes a private carrier."
Petitioner's reliance on the aforementioned case is misplaced. In its entirety, the conclusions of the court are as follows:
Accordingly, the charter party contract is one of affreightment over the whole vessel, rather than a demise. As
such, the liability of the shipowner for acts or negligence of its captain and crew, would remain in the absence
of stipulation. 3
The distinction between the two kinds of charter parties (i.e. bareboat or demise and contract of affreightment) is more clearly
set out in the case of Puromines, Inc. vs. Court of Appeals, 4 wherein we ruled:
Under the demise or bareboat charter of the vessel, the charterer will generally be regarded as the owner for the
voyage or service stipulated. The charterer mans the vessel with his own people and becomes the owner pro
hac vice, subject to liability to others for damages caused by negligence. To create a demise, the owner of a
vessel must completely and exclusively relinquish possession, command and navigation thereof to the
charterer, anything short of such a complete transfer is a contract of affreightment (time or voyage charter
party) or not a charter party at all.
On the other hand a contract of affreightment is one in which the owner of the vessel leases part or all of its
space to haul goods for others. It is a contract for special service to be rendered by the owner of the vessel and
under such contract the general owner retains the possession, command and navigation of the ship, the
charterer or freighter merely having use of the space in the vessel in return for his payment of the charter hire. .
...
. . . . An owner who retains possession of the ship though the hold is the property of the charterer, remains
liable as carrier and must answer for any breach of duty as to the care, loading and unloading of the cargo. . . .
Although a charter party may transform a common carrier into a private one, the same however is not true in a contract of
affreightment on account of the aforementioned distinctions between the two.
Petitioner admits that the contract it entered into with the consignee was one of affreightment. 5 We agree. Pag-asa Sales, Inc. only
leased three of petitioner's vessels, in order to carry cargo from one point to another, but the possession, command and navigation of
the vessels remained with petitioner Coastwise Lighterage.
Pursuant therefore to the ruling in the aforecited Puromines case, Coastwise Lighterage, by the contract of affreightment, was
not converted into a private carrier, but remained a common carrier and was still liable as such.
The law and jurisprudence on common carriers both hold that the mere proof of delivery of goods in good order to a carrier and
the subsequent arrival of the same goods at the place of destination in bad order makes for aprima facie case against the carrier.
It follows then that the presumption of negligence that attaches to common carriers, once the goods it transports are lost,
destroyed or deteriorated, applies to the petitioner. This presumption, which is overcome only by proof of the exercise of
extraordinary diligence, remained unrebutted in this case.
The records show that the damage to the barge which carried the cargo of molasses was caused by its hitting an unknown
sunken object as it was heading for Pier 18. The object turned out to be a submerged derelict vessel. Petitioner contends that this
navigational hazard was the efficient cause of the accident. Further it asserts that the fact that the Philippine Coastguard "has not
exerted any effort to prepare a chart to indicate the location of sunken derelicts within Manila North Harbor to avoid

navigational accidents" 6 effectively contributed to the happening of this mishap. Thus, being unaware of the hidden danger that lies
in its path, it became impossible for the petitioner to avoid the same. Nothing could have prevented the event, making it beyond the
pale of even the exercise of extraordinary diligence.
However, petitioner's assertion is belied by the evidence on record where it appeared that far from having rendered service with
the greatest skill and utmost foresight, and being free from fault, the carrier was culpably remiss in the observance of its duties.
Jesus R. Constantino, the patron of the vessel "Coastwise 9" admitted that he was not licensed. The Code of Commerce, which
subsidiarily governs common carriers (which are primarily governed by the provisions of the Civil Code) provides:
Art. 609. Captains, masters, or patrons of vessels must be Filipinos, have legal capacity to contract in
accordance with this code, and prove the skill capacity and qualifications necessary to command and direct the
vessel, as established by marine and navigation laws, ordinances or regulations, and must not be disqualified
according to the same for the discharge of the duties of the position. . . .
Clearly, petitioner Coastwise Lighterage's embarking on a voyage with an unlicensed patron violates this rule. It cannot safely
claim to have exercised extraordinary diligence, by placing a person whose navigational skills are questionable, at the helm of
the vessel which eventually met the fateful accident. It may also logically, follow that a person without license to navigate, lacks
not just the skill to do so, but also the utmost familiarity with the usual and safe routes taken by seasoned and legally authorized
ones. Had the patron been licensed, he could be presumed to have both the skill and the knowledge that would have prevented
the vessel's hitting the sunken derelict ship that lay on their way to Pier 18.
As a common carrier, petitioner is liable for breach of the contract of carriage, having failed to overcome the presumption of
negligence with the loss and destruction of goods it transported, by proof of its exercise of extraordinary diligence.
On the issue of subrogation, which petitioner contends as inapplicable in this case, we once more rule against the petitioner. We
have already found petitioner liable for breach of the contract of carriage it entered into with Pag-asa Sales, Inc. However, for
the damage sustained by the loss of the cargo which petitioner-carrier was transporting, it was not the carrier which paid the
value thereof to Pag-asa Sales, Inc. but the latter's insurer, herein private respondent PhilGen.
Article 2207 of the Civil Code is explicit on this point:
Art. 2207. If the plaintiffs property has been insured, and he has received indemnity from the insurance
company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance
company shall be subrogated to the rights of the insured against the wrongdoer or the person who violated the
contract. . . .
This legal provision containing the equitable principle of subrogation has been applied in a long line of cases
including Compania Maritima v. Insurance Company of North America; 7 Fireman's Fund Insurance Company v. Jamilla &
Company, Inc., 8 and Pan Malayan Insurance Corporation v. Court of Appeals, 9 wherein this Court explained:
Article 2207 of the Civil Code is founded on the well-settled principle of subrogation. If the insured property is
destroyed or damaged through the fault or negligence of a party other than the assured, then the insurer, upon
payment to the assured will be subrogated to the rights of the assured to recover from the wrongdoer to the
extent that the insurer has been obligated to pay. Payment by the insurer to the assured operated as an
equitable assignment to the former of all remedies which the latter may have against the third party whose
negligence or wrongful act caused the loss. The right of subrogation is not dependent upon, nor does it grow
out of, any privity of contract or upon written assignment of claim. It accrues simply upon payment of the
insurance claim by the insurer.

Undoubtedly, upon payment by respondent insurer PhilGen of the amount of P700,000.00 to Pag-asa Sales, Inc., the consignee
of the cargo of molasses totally damaged while being transported by petitioner Coastwise Lighterage, the former was
subrogated into all the rights which Pag-asa Sales, Inc. may have had against the carrier, herein petitioner Coastwise Lighterage.
WHEREFORE, premises considered, this petition is DENIED and the appealed decision affirming the order of Branch 35 of the
Regional Trial Court of Manila for petitioner Coastwise Lighterage to pay respondent Philippine General Insurance Company
the "principal amount of P700,000.00 plus interest thereon at the legal rate computed from March 29, 1989, the date the
complaint was filed until fully paid and another sum of P100,000.00 as attorney's fees and costs" 10 is likewise hereby
AFFIRMED
G.R. No. 154305

December 9, 2004

MACONDRAY & CO., INC., petitioner,

vs.
PROVIDENT INSURANCE CORPORATION, respondent.

DECISION

PANGANIBAN, J.:
Hornbook is the doctrine that the negligence of counsel binds the client. Also settled is the rule that clients should take the
initiative of periodically checking the progress of their cases, so that they could take timely steps to protect their interest.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to set aside the February 28, 2002
Decision2 and the July 12, 2002 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 57077. The dispositive portion of
the Decision reads as follows:
"WHEREFORE, premises considered, the assailed Decision dated September 17, 1996 is hereby REVERSED and SET
ASIDE. Accordingly, [Petitioner] Macondray & Co., Inc., is hereby ORDERED to pay the [respondent] the amount
of P1,657,700.95."
The assailed Resolution denied petitioner's Motion for Reconsideration.
The Facts
The CA adopted the factual antecedents narrated by the trial court, as follows:
"x x x. On February 16, 1991, at Vancouver, B.C. Canada, CANPOTEX SHIPPING SERVICES LIMITED INC., of
Saskatoon, Saskatchewan, (hereinafter the SHIPPER), shipped and loaded on board the vessel M/V 'Trade Carrier',
5000 metric tons of Standard Grade Muriate of Potash in bulk for transportation to and delivery at the port of Sangi,
Toledo City, Cebu, in favor of ATLAS FERTILIZER CORPORATION, (hereinafter CONSIGNEE) covered by B/L
Nos. VAN-SAN-1 for the 815.96 metric tons and VAN-SAN-2 for the 4,184.04 metric tons. Subject shipments were
insured with [respondent] against all risks under and by virtue of an Open Marine Policy No. MOP-00143 and
Certificate of Marine Insurance No. CMI-823-91.
"When the shipment arrived, CONSIGNEE discovered that the shipment sustained losses/shortage of 476.140 metric
tons valued at One Million Six Hundred Fifty Seven Thousand Seven Hundred Pesos and Ninety Five Centavos

(P1,657,700.95), Philippine Currency. Provident paid losses. Formal claims was then filed with Trade & Transport and
Macondray but the same refused and failed to settle the same. Hence, this complaint.
"As per Officer's Return dated 4 June 1992, summons was UNSERVED to defendant TRADE AND TRANSPORT at
the given address for reason that TRADE AND TRANSPORT is no longer connected with Macondray & Co. Inc., and
is not holding office at said address as alleged by Ms. Guadalupe Tan. For failure to effect service of summons the case
against TRADE & TRANSPORT was considered dismissed without prejudice.
"Defendant MACONDRAY filed ANSWER, denying liability over the losses, having NO absolute relation with
defendant TRADE AND TRANSPORT, the alleged operator of the vessel who transported the subject shipment; that
accordingly, MACONDRAY is the local representative of the SHIPPER; the charterer of M/V TRADE CARRIER and
not party to this case; that it has no control over the acts of the captain and crew of the Carrier and cannot be held
responsible for any damage arising from the fault or negligence of said captain and crew; that upon arrival at the port of
Sangi, Toledo City, Cebu, the M/V Trade Carrier discharged the full amount of shipment, as shown by the draft survey
with a total quantity of 5,033.59 metric tons discharged from the vessel and delivered to the CONSIGNEE.
"ISSUES: Whether or not Macondray and Co. Inc., as an agent is responsible for any loss sustained by any party from
the vessel owned by defendant Trade and Transport. "Whether or not Macondray is liable for loss which was allegedly
sustained by the plaintiff in this case.
"EVIDENCE FOR THE PLAINTIFF
"Plaintiff presented the testimonies of Marina Celerina P. Aguas and depositions of Alberto Milan and Alfonso Picson
submitted as additional witnesses for PROVIDENT to prove the material facts of the complaint are deemed admitted by
defendant MACONDRAY, on their defense that it is not an agent of TRADE AND TRANSPORT.
"EVIDENCE FOR THE DEFENDANT MACONDRAY:
"Witness Ricardo de la Cruz testified as Supercargo of MACONDRAY, that MACONDRAY was not an agent of
defendant TRADE AND TRANSPORT; that his functions as Supercargo was to prepare a notice of readiness, statement
of facts, sailing notice and custom's clearance in order to attend to the formalities and the need of the vessel; that
MACONDRAY is performing functions in behalf of CANPOTEX and was appointed as local agent of the vessel,
which duty includes arrangement of the entrance and clearance of the vessel."
The trial court, in the decision dated September 17, 1996 earlier adverted to, ruled in favor of the [petitioner] x x x, the
dispositive portion of which reads:
"WHEREFORE, PREMISES CONSIDERED, the case as against [petitioner] MACONDRAY is hereby DISMISSED.
"No pronouncement as to costs."4
Ruling of the Court of Appeals
The CA affirmed the trial court's finding that petitioner was not the agent of Trade and Transport. The appellate court ruled,
however, that petitioner could still be held liable for the shortages of the shipment, because the latter was the ship agent of
Canpotex Shipping Services Ltd. -- the shipper and charterer of the vessel M/V Trade Carrier.
All told, the CA held petitioner "liable for the losses incurred in the shipment of the subject cargoes to the [respondent], who,
being the insurer of the risk, was subrogated to the rights and causes of action which the consignee, Atlas Fertilizer Corporation,
had against the [petitioner]."5
Hence, this Petition.6
The Issues
Petitioner raises the following issues for our consideration:

"Whether or not liability attached to petitioner despite the unequivocal factual findings, that it was not a ship agent.
"Whether or not the 28 February 2002 Decision of the Court of Appeals has attained finality.
"Whether or not by filing the instant Petition for Review on Certiorari, petitioner is guilty of forum-shopping." 7
The Court's Ruling
The Petition has no merit.
First Issue:
Petitioner's Liability
As a rule, factual findings of the Court of Appeals -- when not in conflict with those of the trial court -- are not disturbed by this
Court,8 to which only questions of law may be raised in an appeal by certiorari.9
In the present case, we find no compelling reason to overturn the Court of Appeals in its categorical finding that petitioner was
the ship agent. Such factual finding was not in conflict with the trial court's ruling, which had merely stated that petitioner was
not the agent of Trade and Transport. Indeed, although it is not an agent of Trade and Transport, petitioner can still be the ship
agent of the vessel M/V Trade Carrier.
Article 586 of the Code of Commerce states that a ship agent is "the person entrusted with provisioning or representing the
vessel in the port in which it may be found."
Hence, whether acting as agent of the owner10 of the vessel or as agent of the charterer,11 petitioner will be considered as the ship
agent12 and may be held liable as such, as long as the latter is the one that provisions or represents the vessel.
The trial court found that petitioner "was appointed as local agent of the vessel, which duty includes arrangement for the
entrance and clearance of the vessel."13 Further, the CA found and the evidence shows that petitioner represented the vessel. The
latter prepared the Notice of Readiness, the Statement of Facts, the Completion Notice, the Sailing Notice and Custom's
Clearance.14 Petitioner's employees were present at Sangi, Toledo City, one day before the arrival of the vessel, where they
stayed until it departed. They were also present during the actual discharging of the cargo. 15 Moreover, Mr. de la Cruz, the
representative of petitioner, also prepared for the needs of the vessel, like money, provision, water and fuel. 16
These acts all point to the conclusion that it was the entity that represented the vessel in the Port of Manila and was the ship
agent17 within the meaning and context of Article 586 of the Code of Commerce.
As ship agent, it may be held civilly liable in certain instances. The Code of Commerce provides:
"Article 586. The shipowner and the ship agent shall be civilly liable for the acts of the captain and for the obligations
contracted by the latter to repair, equip, and provision the vessel, provided the creditor proves that the amount claimed
was invested for the benefit of the same."
"Article 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 care of the goods which he loaded on the vessel; but he may exempt himself
therefrom by abandoning the vessel with all her equipments and the freight it may have earned during the voyage."
Petitioner does not dispute the liabilities of the ship agent for the loss/shortage of 476.140 metric tons of standard-grade Muriate
of Potash valued at P1,657,700.95. Hence, we find no reason to delve further into the matter or to disturb the finding of the CA
holding petitioner, as ship agent, liable to respondent for the losses sustained by the subject shipment.
Second Issue:
Finality of the CA Decision

Petitioner claims that it picked up the February 28, 2002 Decision of the CA on May 14, 2002, after receiving the postal notice
the day before. It further attributes gross negligence to its previous counsel for not informing the CA of his change of address. It
thus contends that notice of the assailed Decision given to the previous counsel cannot be considered as notice to petitioner.
We are not persuaded. "It is well-settled that when a party is represented by counsel, notice should be made upon the counsel of
record at his given address to which notices of all kinds emanating from the court should be sent in the absence of a proper and
adequate notice to the court of a change of address."18
In the present case, service of the assailed Decision was made on petitioner's counsels of record, Attys. Moldez and Galoz, on
March 6, 2002. That copy of the Decision was, however, returned to the sender for the reason that the addressee had "move[d]
out." If counsel moves to another address without informing the court of that change, such omission or neglect is inexcusable
and will not stay the finality of the decision.19 "The court cannot be expected to take judicial notice of the new address of a
lawyer who has moved or to ascertain on its own whether or not the counsel of record has been changed and who the new
counsel could possibly be or where he probably resides or holds office."20
It is unfortunate that the lawyer of petitioner neglected his duties to the latter. Be that as it may, the negligence of counsel binds
the client.21 Service made upon the present counsel of record at his given address is service to petitioner. Hence, the assailed
Decision has already become final and unappealable.
In the present case, there is no compelling reason to overturn well-settled jurisprudence or to interpret the rules liberally in favor
of petitioner, who is not entirely blameless. It should have taken the initiative of periodically keeping in touch with its counsel,
checking with the court, and inquiring about the status of its case. 22 In so doing, it could have taken timely steps to neutralize the
negligence of its chosen counsel and to protect its interests. "Litigants represented by counsel should not expect that all they
need to do is sit back, relax and await the outcome of their case."23
In view of the foregoing, there is no necessity of passing upon the third issue raised by petitioner.
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner.
G.R. No. 119602

October 6, 2000

WILDVALLEY SHIPPING CO., LTD. petitioner,

vs.
COURT OF APPEALS and PHILIPPINE PRESIDENT LINES INC., respondents.
DECISION
BUENA, J.:
This is a petition for review on certiorari seeking to set aside the decision of the Court of Appeals which reversed the decision
of the lower court in CA-G.R. CV No. 36821, entitled "Wildvalley Shipping Co., Ltd., plaintiff-appellant, versus Philippine
President Lines, Inc., defendant-appellant."
The antecedent facts of the case are as follows:
Sometime in February 1988, the Philippine Roxas, a vessel owned by Philippine President Lines, Inc., private respondent
herein, arrived in Puerto Ordaz, Venezuela, to load iron ore. Upon the completion of the loading and when the vessel was ready
to leave port, Mr. Ezzar del Valle Solarzano Vasquez, an official pilot of Venezuela, was designated by the harbour authorities in
Puerto Ordaz to navigate the Philippine Roxas through the Orinoco River.1 He was asked to pilot the said vessel on February 11,
19882 boarding it that night at 11:00 p.m.3
The master (captain) of the Philippine Roxas, Captain Nicandro Colon, was at the bridge together with the pilot (Vasquez), the
vessel's third mate (then the officer on watch), and a helmsman when the vessel left the port 4 at 1:40 a.m. on February 12,
1988.5 Captain Colon left the bridge when the vessel was under way.6

The Philippine Roxas experienced some vibrations when it entered the San Roque Channel at mile 172. 7 The vessel proceeded
on its way, with the pilot assuring the watch officer that the vibration was a result of the shallowness of the channel. 8
Between mile 158 and 157, the vessel again experienced some vibrations.9 These occurred at 4:12 a.m.10 It was then that the
watch officer called the master to the bridge.11
The master (captain) checked the position of the vessel12 and verified that it was in the centre of the channel.13He then went to
confirm, or set down, the position of the vessel on the chart.14 He ordered Simplicio A. Monis, Chief Officer of the President
Roxas, to check all the double bottom tanks.15
At around 4:35 a.m., the Philippine Roxas ran aground in the Orinoco River,16 thus obstructing the ingress and egress of vessels.
As a result of the blockage, the Malandrinon, a vessel owned by herein petitioner Wildvalley Shipping Company, Ltd., was
unable to sail out of Puerto Ordaz on that day.
Subsequently, Wildvalley Shipping Company, Ltd. filed a suit with the Regional Trial Court of Manila, Branch III against
Philippine President Lines, Inc. and Pioneer Insurance Company (the underwriter/insurer of Philippine Roxas) for damages in
the form of unearned profits, and interest thereon amounting to US $400,000.00 plus attorney's fees, costs, and expenses of
litigation. The complaint against Pioneer Insurance Company was dismissed in an Order dated November 7, 1988. 17
At the pre-trial conference, the parties agreed on the following facts:
"1. The jurisdictional facts, as specified in their respective pleadings;
"2. That defendant PPL was the owner of the vessel Philippine Roxas at the time of the incident;
"3. That defendant Pioneer Insurance was the insurance underwriter for defendant PPL;
"4. That plaintiff Wildvalley Shipping Co., Inc. is the owner of the vessel Malandrinon, whose passage was obstructed
by the vessel Philippine Roxas at Puerto Ordaz, Venezuela, as specified in par. 4, page 2 of the complaint;
"5. That on February 12, 1988, while the Philippine Roxas was navigating the channel at Puerto Ordaz, the said vessel
grounded and as a result, obstructed navigation at the channel;
"6. That the Orinoco River in Puerto Ordaz is a compulsory pilotage channel;
"7. That at the time of the incident, the vessel, Philippine Roxas, was under the command of the pilot Ezzar Solarzano,
assigned by the government thereat, but plaintiff claims that it is under the command of the master;
"8. The plaintiff filed a case in Middleburg, Holland which is related to the present case;
"9. The plaintiff caused the arrest of the Philippine Collier, a vessel owned by the defendant PPL;
"10. The Orinoco River is 150 miles long and it takes approximately 12 hours to navigate out of the said river;
"11. That no security for the plaintiff's claim was given until after the Philippine Collier was arrested; and
"12. That a letter of guarantee, dated 12-May-88 was issued by the Steamship Mutual Underwriters Ltd." 18
The trial court rendered its decision on October 16, 1991 in favor of the petitioner, Wildvalley Shipping Co., Ltd. The
dispositive portion thereof reads as follows:

"WHEREFORE, judgment is rendered for the plaintiff, ordering defendant Philippine President Lines, Inc. to pay to the plaintiff
the sum of U.S. $259,243.43, as actual and compensatory damages, and U.S. $162,031.53, as expenses incurred abroad for its
foreign lawyers, plus additional sum of U.S. $22,000.00, as and for attorney's fees of plaintiff's local lawyer, and to pay the cost
of this suit.
"Defendant's counterclaim is dismissed for lack of merit.
"SO ORDERED."19
Both parties appealed: the petitioner appealing the non-award of interest with the private respondent questioning the decision on
the merits of the case.
After the requisite pleadings had been filed, the Court of Appeals came out with its questioned decision dated June 14,
1994,20 the dispositive portion of which reads as follows:
"WHEREFORE, finding defendant-appellant's appeal to be meritorious, judgment is hereby rendered reversing the Decision of
the lower court. Plaintiff-appellant's Complaint is dismissed and it is ordered to pay defendant-appellant the amount of Three
Hundred Twenty-three Thousand, Forty-two Pesos and Fifty-three Centavos (P323,042.53) as and for attorney's fees plus cost of
suit. Plaintiff-appellant's appeal is DISMISSED.
"SO ORDERED."21
Petitioner filed a motion for reconsideration22 but the same was denied for lack of merit in the resolution dated March 29, 1995.23
Hence, this petition.
The petitioner assigns the following errors to the court a quo:
1. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT UNDER PHILIPPINE LAW
NO FAULT OR NEGLIGENCE CAN BE ATTRIBUTED TO THE MASTER NOR THE OWNER OF THE
"PHILIPPINE ROXAS" FOR THE GROUNDING OF SAID VESSEL RESULTING IN THE BLOCKAGE OF THE
RIO ORINOCO;
2. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN REVERSING THE FINDINGS OF FACTS OF
THE TRIAL COURT CONTRARY TO EVIDENCE;
3. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE "PHILIPPINE ROXAS"
IS SEAWORTHY;
4. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DISREGARDING VENEZUELAN LAW
DESPITE THE FACT THAT THE SAME HAS BEEN SUBSTANTIALLY PROVED IN THE TRIAL COURT
WITHOUT ANY OBJECTION FROM PRIVATE RESPONDENT, AND WHOSE OBJECTION WAS INTERPOSED
BELATEDLY ON APPEAL;
5. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN AWARDING ATTORNEY'S FEES AND COSTS
TO PRIVATE RESPONDENT WITHOUT ANY FAIR OR REASONABLE BASIS WHATSOEVER;
6. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT PETITIONER'S CAUSE
IS MERITORIOUS HENCE, PETITIONER SHOULD BE ENTITLED TO ATTORNEY'S FEES, COSTS AND
INTEREST.

The petition is without merit.

The primary issue to be determined is whether or not Venezuelan law is applicable to the case at bar.
It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial
notice of them. Like any other fact, they must be alleged and proved.24
A distinction is to be made as to the manner of proving a written and an unwritten law. The former falls under Section 24, Rule
132 of the Rules of Court, as amended, the entire provision of which is quoted hereunder. Where the foreign law sought to be
proved is "unwritten," the oral testimony of expert witnesses is admissible, as are printed and published books of reports of
decisions of the courts of the country concerned if proved to be commonly admitted in such courts. 25
Section 24 of Rule 132 of the Rules of Court, as amended, provides:
"Sec. 24. Proof of official record. -- The record of public documents referred to in paragraph (a) of Section 19, when admissible
for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that
such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his
office." (Underscoring supplied)
The court has interpreted Section 25 (now Section 24) to include competent evidence like the testimony of a witness to prove
the existence of a written foreign law.26
In the noted case of Willamette Iron & Steel Works vs. Muzzal,27 it was held that:
" Mr. Arthur W. Bolton, an attorney-at-law of San Francisco, California, since the year 1918 under oath, quoted verbatim
section 322 of the California Civil Code and stated that said section was in force at the time the obligations of defendant to the
plaintiff were incurred, i.e. on November 5, 1928 and December 22, 1928. This evidence sufficiently established the fact that
the section in question was the law of the State of California on the above dates. A reading of sections 300 and 301 of our Code
of Civil Procedure will convince one that these sections do not exclude the presentation of other competent evidence to prove
the existence of a foreign law.
"`The foreign law is a matter of fact You ask the witness what the law is; he may, from his recollection, or on producing and
referring to books, say what it is.' (Lord Campbell concurring in an opinion of Lord Chief Justice Denman in a well-known
English case where a witness was called upon to prove the Roman laws of marriage and was permitted to testify, though he
referred to a book containing the decrees of the Council of Trent as controlling, Jones on Evidence, Second Edition, Volume 4,
pages 3148-3152.) x x x."
We do not dispute the competency of Capt. Oscar Leon Monzon, the Assistant Harbor Master and Chief of Pilots at Puerto
Ordaz, Venezuela,28 to testify on the existence of the Reglamento General de la Ley de Pilotaje(pilotage law of Venezuela)29 and
the Reglamento Para la Zona de Pilotaje No 1 del Orinoco (rules governing the navigation of the Orinoco River). Captain
Monzon has held the aforementioned posts for eight years.30 As such he is in charge of designating the pilots for maneuvering
and navigating the Orinoco River. He is also in charge of the documents that come into the office of the harbour masters. 31
Nevertheless, we take note that these written laws were not proven in the manner provided by Section 24 of Rule 132 of the
Rules of Court.
The Reglamento General de la Ley de Pilotaje was published in the Gaceta Oficial32 of the Republic of Venezuela. A photocopy
of the Gaceta Oficial was presented in evidence as an official publication of the Republic of Venezuela.

The Reglamento Para la Zona de Pilotaje No 1 del Orinoco is published in a book issued by the Ministerio de
Comunicaciones of Venezuela.33 Only a photocopy of the said rules was likewise presented as evidence.
Both of these documents are considered in Philippine jurisprudence to be public documents for they are the written official acts,
or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers of Venezuela. 34
For a copy of a foreign public document to be admissible, the following requisites are mandatory: (1) It must be attested by the
officer having legal custody of the records or by his deputy; and (2) It must be accompanied by a certificate by a secretary of the
embassy or legation, consul general, consul, vice consular or consular agent or foreign service officer, and with the seal of his
office.35 The latter requirement is not a mere technicality but is intended to justify the giving of full faith and credit to the
genuineness of a document in a foreign country.36
It is not enough that the Gaceta Oficial, or a book published by the Ministerio de Comunicaciones of Venezuela, was presented
as evidence with Captain Monzon attesting it. It is also required by Section 24 of Rule 132 of the Rules of Court that a
certificate that Captain Monzon, who attested the documents, is the officer who had legal custody of those records made by a
secretary of the embassy or legation, consul general, consul, vice consul or consular agent or by any officer in the foreign
service of the Philippines stationed in Venezuela, and authenticated by the seal of his office accompanying the copy of the
public document. No such certificate could be found in the records of the case.
With respect to proof of written laws, parol proof is objectionable, for the written law itself is the best evidence. According to
the weight of authority, when a foreign statute is involved, the best evidence rule requires that it be proved by a duly
authenticated copy of the statute.37
At this juncture, we have to point out that the Venezuelan law was not pleaded before the lower court.
A foreign law is considered to be pleaded if there is an allegation in the pleading about the existence of the foreign law, its
import and legal consequence on the event or transaction in issue.38
A review of the Complaint39 revealed that it was never alleged or invoked despite the fact that the grounding of the M/V
Philippine Roxas occurred within the territorial jurisdiction of Venezuela.
We reiterate that under the rules of private international law, a foreign law must be properly pleaded and proved as a fact. In the
absence of pleading and proof, the laws of a foreign country, or state, will be presumed to be the same as our own local or
domestic law and this is known as processual presumption.40
Having cleared this point, we now proceed to a thorough study of the errors assigned by the petitioner.
Petitioner alleges that there was negligence on the part of the private respondent that would warrant the award of damages.
There being no contractual obligation, the private respondent is obliged to give only the diligence required of a good father of a
family in accordance with the provisions of Article 1173 of the New Civil Code, thus:
"Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad
faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.
"If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good
father of a family shall be required."
The diligence of a good father of a family requires only that diligence which an ordinary prudent man would exercise with
regard to his own property. This we have found private respondent to have exercised when the vessel sailed only after the "main

engine, machineries, and other auxiliaries" were checked and found to be in good running condition; 41 when the master left a
competent officer, the officer on watch on the bridge with a pilot who is experienced in navigating the Orinoco River; when the
master ordered the inspection of the vessel's double bottom tanks when the vibrations occurred anew.42
The Philippine rules on pilotage, embodied in Philippine Ports Authority Administrative Order No. 03-85, otherwise known as
the Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports enunciate
the duties and responsibilities of a master of a vessel and its pilot, among other things.
The pertinent provisions of the said administrative order governing these persons are quoted hereunder:
"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 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 the 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 board. 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.
"x x x
"Sec. 32. Duties and Responsibilities of the Pilots or Pilots Association. -- The duties and responsibilities of the Harbor Pilot
shall be as follows:
"x x x
"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 his order."
The Code of Commerce likewise provides for the obligations expected of a captain of a vessel, to wit:
"Art. 612. The following obligations shall be inherent in the office of captain:
"x x x
"7. To be on deck on reaching land and to take command on entering and leaving ports, canals, roadsteads, and rivers, unless
there is a pilot on board discharging his duties. x x x."
The law is very explicit. The master remains the overall commander of the vessel even when there is a pilot on board. He
remains in control of the ship as he can still perform the duties conferred upon him by law 43 despite the presence of a pilot who
is temporarily in charge of the vessel. It is not required of him to be on the bridge while the vessel is being navigated by a pilot.
However, Section 8 of PPA Administrative Order No. 03-85, provides:

"Sec. 8. Compulsory 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.
"xxx."
The Orinoco River being a compulsory pilotage channel necessitated the engaging of a pilot who was presumed to be
knowledgeable of every shoal, bank, deep and shallow ends of the river. In his deposition, pilot Ezzar Solarzano Vasquez
testified that he is an official pilot in the Harbour at Port Ordaz, Venezuela,44 and that he had been a pilot for twelve (12)
years.45 He also had experience in navigating the waters of the Orinoco River.46
The law does provide that the master can countermand or overrule the order or command of the harbor pilot on board. The
master of the Philippine Roxas deemed it best not to order him (the pilot) to stop the vessel, 47mayhap, because the latter had
assured him that they were navigating normally before the grounding of the vessel.48 Moreover, the pilot had admitted that on
account of his experience he was very familiar with the configuration of the river as well as the course headings, and that he
does not even refer to river charts when navigating the Orinoco River.49
Based on these declarations, it comes as no surprise to us that the master chose not to regain control of the ship. Admitting his
limited knowledge of the Orinoco River, Captain Colon relied on the knowledge and experience of pilot Vasquez to guide the
vessel safely.
"Licensed pilots, enjoying the emoluments of compulsory pilotage, are in a different class from ordinary employees, for they
assume to have a skill and a knowledge of navigation in the particular waters over which their licenses extend superior to that of
the master; pilots are bound to use due diligence and reasonable care and skill. A pilot's ordinary skill is in proportion to the
pilot's responsibilities, and implies a knowledge and observance of the usual rules of navigation, acquaintance with the waters
piloted in their ordinary condition, and nautical skill in avoiding all known obstructions. The character of the skill and
knowledge required of a pilot in charge of a vessel on the rivers of a country is very different from that which enables a
navigator to carry a vessel safely in the ocean. On the ocean, a knowledge of the rules of navigation, with charts that disclose
the places of hidden rocks, dangerous shores, or other dangers of the way, are the main elements of a pilot's knowledge and
skill. But the pilot of a river vessel, like the harbor pilot, is selected for the individual's personal knowledge of the topography
through which the vessel is steered."50
We find that the grounding of the vessel is attributable to the pilot. When the vibrations were first felt the watch officer asked
him what was going on, and pilot Vasquez replied that "(they) were in the middle of the channel and that the vibration was as
(sic) a result of the shallowness of the channel."51
Pilot Ezzar Solarzano Vasquez was assigned to pilot the vessel Philippine Roxas as well as other vessels on the Orinoco River
due to his knowledge of the same. In his experience as a pilot, he should have been aware of the portions which are shallow and
which are not. His failure to determine the depth of the said river and his decision to plod on his set course, in all probability,
caused damage to the vessel. Thus, we hold him as negligent and liable for its grounding.
In the case of Homer Ramsdell Transportation Company vs. La Compagnie Generale Transatlantique, 182 U.S. 406, it was
held that:
"x x x The master of a ship, and the owner also, is liable for any injury done by the negligence of the crew employed in the ship.
The same doctrine will apply to the case of a pilot employed by the master or owner, by whose negligence any injury happens to
a third person or his property: as, for example, by a collision with another ship, occasioned by his negligence. And it will make
no difference in the case that the pilot, if any is employed, is required to be a licensed pilot; provided the master is at liberty to
take a pilot, or not, at his pleasure, for in such a case the master acts voluntarily, although he is necessarily required to select
from a particular class. On the other hand, if it is compulsive upon the master to take a pilot, and, a fortiori, if he is bound
to do so under penalty, then, and in such case, neither he nor the owner will be liable for injuries occasioned by the

negligence of the pilot; for in such a case the pilot cannot be deemed properly the servant of the master or the owner, but is
forced upon them, and the maxim Qui facit per alium facit per se does not apply." (Underscoring supplied)
Anent the river passage plan, we find that, while there was none,52 the voyage has been sufficiently planned and monitored as
shown by the following actions undertaken by the pilot, Ezzar Solarzano Vasquez, to wit: contacting the radio marina via VHF
for information regarding the channel, river traffic,53 soundings of the river, depth of the river, bulletin on the buoys.54 The
officer on watch also monitored the voyage.55
We, therefore, do not find the absence of a river passage plan to be the cause for the grounding of the vessel.
The doctrine of res ipsa loquitur does not apply to the case at bar because the circumstances surrounding the injury do not
clearly indicate negligence on the part of the private respondent. For the said doctrine to apply, the following conditions must be
met: (1) the accident was of such character as to warrant an inference that it would not have happened except for defendant's
negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control
of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or
contribution on the part of the person injured.56
As has already been held above, there was a temporary shift of control over the ship from the master of the vessel to the pilot on
a compulsory pilotage channel. Thus, two of the requisites necessary for the doctrine to apply, i.e., negligence and control, to
render the respondent liable, are absent.
As to the claim that the ship was unseaworthy, we hold that it is not.
The Lloyds Register of Shipping confirmed the vessels seaworthiness in a Confirmation of Class issued on February 16, 1988
by finding that "the above named ship (Philippine Roxas) maintained the class "+100A1 Strengthened for Ore Cargoes, Nos. 2
and 8 Holds may be empty (CC) and +LMC" from 31/12/87 up until the time of casualty on or about 12/2/88." 57 The same
would not have been issued had not the vessel been built according to the standards set by Lloyd's.
Samuel Lim, a marine surveyor, at Lloyd's Register of Shipping testified thus:
"Q Now, in your opinion, as a surveyor, did top side tank have any bearing at all to the seaworthiness of the vessel?
"A Well, judging on this particular vessel, and also basing on the class record of the vessel, wherein recommendations were
made on the top side tank, and it was given sufficient time to be repaired, it means that the vessel is fit to travel even with those
defects on the ship.
"COURT
What do you mean by that? You explain. The vessel is fit to travel even with defects? Is that what you mean? Explain.
"WITNESS
"A Yes, your Honor. Because the class society which register (sic) is the third party looking into the condition of the vessel and
as far as their record states, the vessel was class or maintained, and she is fit to travel during that voyage."
"x x x
"ATTY. MISA
Before we proceed to other matter, will you kindly tell us what is (sic) the 'class +100A1 Strengthened for Ore Cargoes', mean?

"WITNESS
"A Plus 100A1 means that the vessel was built according to Lloyd's rules and she is capable of carrying ore bulk cargoes, but
she is particularly capable of carrying Ore Cargoes with No. 2 and No. 8 holds empty.
"x x x
"COURT
The vessel is classed, meaning?
"A Meaning she is fit to travel, your Honor, or seaworthy."58
It is not required that the vessel must be perfect. To be seaworthy, a ship must be reasonably fit to perform the services, and to
encounter the ordinary perils of the voyage, contemplated by the parties to the policy.59
As further evidence that the vessel was seaworthy, we quote the deposition of pilot Vasquez:
"Q Was there any instance when your orders or directions were not complied with because of the inability of the vessel to do so?
"A No.
"Q. Was the vessel able to respond to all your commands and orders?
"A. The vessel was navigating normally."60
Eduardo P. Mata, Second Engineer of the Philippine Roxas submitted an accident report wherein he stated that on February 11,
1988, he checked and prepared the main engine, machineries and all other auxiliaries and found them all to be in good running
condition and ready for maneuvering. That same day the main engine, bridge and engine telegraph and steering gear motor were
also tested.61 Engineer Mata also prepared the fuel for consumption for maneuvering and checked the engine generators. 62
Finally, we find the award of attorneys fee justified.

1wphi1

Article 2208 of the New Civil Code provides that:

"Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be
recovered, except:
"x x x
"(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be
recovered.
"x x x"
Due to the unfounded filing of this case, the private respondent was unjustifiably forced to litigate, thus the award of attorneys
fees was proper.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED and the decision of the Court of Appeals in CA
G.R. CV No. 36821 is AFFIRMED.