Note: read page 72 of book for other provisions. b. Consignee – Delivery must generally be made to the owner
or consignee or to someone lawfully authorized by him to
(1) Abandonment receive the goods for his account or to the holder of the
- In case of delay through the fault of the carrier, the negotiable instrument.
consignee may refuse to accept the goods or may leave the
goods in the hands of the carrier. It must be communicated c. Delay to Transport Passengers – A carrier is duty bound to
to the carrier in writing. transport the passenger with reasonable dispatch
- This right must be exercised between the time of delay and
before the arrival of the goods at its destination. Effects of ‘delayed and unfinished voyage’ in inter-island vessels:
- The carrier must pay the full value of the goods as if they had vessel cannot continue or complete her voyage for any cause
been lost or mislaid. – carrier is under obligation to transport the passenger to
his/her destination at the expense of the carrier including
Note: If abandonment is not made, indemnification for the losses and free meals and lodging before the passenger is transported
damages by reason of the delay cannot exceed the current price which to his/her destination; the passenger may opt to have his/her
the goods would have on the day and at the place they are to be ticket refunded in full if the cause of the unfinished voyage is
delivered. due to the negligence of the carrier or to an amount that will
suffice to defray transportation cost at the shortest possible
The value of the goods which the carrier must pay in case of loss or route if the cause of the unfinished voyage is fortuitous
misplacement shall be that what is declared in the bill of lading. event.
vessel is delayed in arrival at the port of destination – free
Consignee must not defer the payment of the expenses and meals during mealtime
transportation charges of the goods otherwise carrier may demand the delay in departure at the point of origin due to carrier’s
judicial sale of the goods. negligence; fortuitous event - free meals during mealtime;
carrier not obliged to serve free meals
carrier is not obliged to inform passengers of sailing schedule
of the vessel
* Mere purchase of a ticket does not of itself create the relation of
C. DUTY TO EXERCISE EXTRAORDINARY DELIGENCE carrier and passenger but it is an element in the inception of the
- Goods should be delivered in the same condition that they relation.
were received and to transport the passengers without
encountering any harm or loss. * A proper person who enters upon the carrier’s premises (station,
- Read page 79-80 for provisions ticketing office, or waiting room) with the intention of becoming a
passenger will ordinarily be viewed as assuming the status of a
ARTICLE 1755. A common carrier is bound to carry the passengers passenger.
safely as far as human care and foresight can provide, using the utmost
diligence of very cautious persons, with a due regard for all the * One who goes to the railroad station to inquire as to the possibility of
circumstances. (Civil Code) securing passage on a freight train, which he knows, by the rules of the
company, is not allowed to carry passengers, and to secure passage
- Presumption of Negligence thereon if possible, is not entitled to the rights of a passenger but is a
- Two conditions for the birth of the presumption of negligence: mere trespasser.
1. there exists a contract between the passenger or the shipper
and the common carrier * One who rides upon any part of the vehicle or conveyance which is
2. the loss, deterioration, injury or death took place during the unsuitable or dangerous, or which he knows is not intended for
existence of the contract passengers, is not presumed to be a passenger.
Doctrine of Proximate Cause – there is presumption of negligence * One who secures free passage by fraud or stealth is precluded from
If the goods are lost, destroyed or deteriorated, common carriers are recovery for injuries sustained through the negligence of the carrier,
presumed to have acted negligently, unless they prove that they for he has not assumed the status of a passenger.
observed extraordinary diligence. In case of death of or injuries to
passengers, common carriers are presumed to have been at fault or to * A person riding on a freight train, on a driver’s pass or similar
have acted negligently, unless they prove that they observed arrangement, to look after livestock being transported and as incident
extraordinary diligence. to such transportation is, generally regarded as a passenger for hire.
- Duration of Duty: Motor vehicles like jeepneys and buses – are duty bound to stop their
conveyances for a reasonable length of time in order to afford
(1) Carriage of Goods passengers an opportunity to board and enter, and they are liable for
- Due diligence should be exercised the moment the injuries suffered by boarding passengers resulting from the sudden
goods are delivered to the carrier. starting up or jerking of their conveyances while they do so. Once a
- Goods are deemed delivered to the carrier when the public utility bus or jeepney stops, it is making a continuous offer to
goods are ready for and have been placed in the bus riders.
exclusive possession, custody and control of the carrier
for the purpose of their immediate transportation and Case: Dangwa Transportation Company vs. CA
the carrier has accepted them - When the bus is not in motion there is no necessity for a person
who wants to ride the same to signal his intention to board. A
ARTICLE 1736. The extraordinary responsibility of the common carrier public utility bus, once it stops, is in effect making a continuous
lasts from the time the goods are unconditionally placed in the offer to bus riders
possession of, and received by the carrier for transportation until the - The premature acceleration of the bus in this case was a breach
same are delivered, actually or constructively, by the carrier to the of such duty
consignee or to the person who has a right to receive them…
Case: La Mallorca vs. CA
ARTICLE 1737. The common carrier’s duty to observe extraordinary - Duty to exercise utmost diligence with respect to passengers
diligence over the goods remains in full force and effect even when will not ordinarily terminate until the passenger has, after
they are temporarily unloaded or stored in transit, unless the shipper reaching his destination, safely alighted from the carrier’s
or owner has made use of the right of stoppage in transitu. (common conveyance or had a reasonable opportunity to leave the
carrier becomes a warehouseman – ordinary diligence) carriers premises. And what is reasonable time or a reasonable
delay within this rule is to be determined from all the
ARTICLE 1738. The extraordinary liability of the common carrier circumstances.
continues to be operative even during the time the goods are stored in Case: Aboitiz Shipping Corporation vs. CA
a warehouse of the carrier at the place if destination, until the - Same ruling with La Mallorca vs. CA
consignee has been advised of the arrival of the goods and has had - That reasonableness of time should be made to depend on the
reasonable opportunity thereafter to remove them or otherwise attending circumstances of the case, such as the kind of
dispose of them. common carrier, the nature of its business, the customs of the
place, and so forth, and therefore precludes a consideration of
(2) Carriage of Passengers the time element per se without taking into account such other
factors
By trains – the extraordinary responsibility of common carrier - The primary factor to be considered is the existence of a
commences the moment the person who purchases the ticket (or a reasonable cause as will justify the presence of the victim on or
‘token’ or ‘card’) from the carrier presents himself at the proper place near the petitioner’s vessel. We believe there exists such a
and in a proper manner to be transported with a bona fide intent to justifiable cause (baggage were left)
ride the coach.
DEFENSES OF COMMON CARRIERS - The explosion could have been caused by too much air pressure
injected into the tires and the fact that the jeepney was
Article 1734 (No other defense may be raised: exclusive or closed list) overloaded and speeding at the time of the accident.
1. Flood, storm, earthquake, lightning, or other natural disaster or
calamity OTHER INVALID DEFENSES
2. Act of the public enemy in war, whether international or civil 1. Damage to cargo due to EXPLOSION of another cargo – not
3. Act or omission of the shipper or owner of the goods attributable to peril of the seas or accidents of navigation.
4. The character of the goods or defects in the packing or in the 2. Damage by WORMS and RATS resulting to damage to
containers cargoes – can’t be cited as an excuse by the carrier.
5. Order or act of competent public authority 3. Damage by WATER through a port which had been left open
6. Exercise of extraordinary diligence or insufficiently fastened on sailing.
4. Carrier cannot escape liabilities to third persons if damage
Fortuitous Event – to be a valid defense must be established to be the was caused by BARRATRY – where the master or crew of the
proximate cause of the loss ship committed unlawful acts contrary to their duties –
includes theft and fraudulently running the ship ashore.
Note: Since common carrier is presumed is to be negligent, it has been
observed that the DOCTRINE of PROXIMATE CAUSE is INAPPLICABLE to Cases:
a contract of carriage. The injured passenger or owner of goods need 1. Problem: A carrier bus on its way to its destination
not prove causation to establish his case. encountered an engine failure, thus, it has to be repaired for
2 days. And while in the repair shop, a typhoon came
The absence of causal connection is only a matter of defense. resulting to the spoilage of cargoes.
Answer: A typhoon although a natural disaster, is not a valid
Requisites of Fortuitous Event: defense if it is shown that it was not the only cause of the
1. The cause of the unforeseen and the unexpected occurrence, loss. Especially when the facts indicate that the typhoon was
or of the failure of the debtor to comply with his obligation, foreseeable and could have been detected through the
must be independent of the human will exercise of reasonable care. Cargoes should have been
2. It must be impossible to foresee the event which constitutes secured while the bus was being repaired for 2 days.
the caso fortuito, or if it can be foreseen, it must be impossible
to avoid 2. Problem: A passenger told the driver that he has valuable
3. The occurrence must be such as to render it impossible for the items in his bag which was placed under his feet and he
debtor to fulfill his obligation in a normal manner asked the driver (to which he is seated near) to watch for the
4. The obligor (debtor) must be free from any participation in or bag while he is asleep.
the aggravation of the injury resulting to the creditor
(a) There have been incidents of throwing of stones at
In order for the common carrier to be exempted from responsibility, passing vehicles in the North Express Way. While the
the natural disaster must have been the proximate and only cause of bus was traversing the super highway, a stone hurled
the loss. However, the common carrier must exercise due diligence to from the overpass and hit the passenger resulting to
prevent or minimize loss before, during and after the occurrence of injuries. Can the passenger hold the bus liable for
flood, storm or other natural disaster in order that the common carrier damages?
may be exempted from liability for the loss, destruction, or Answer: Yes. The incident was foreseeable due the prior
deterioration of the goods. incidents of stone hurling. The bus should have
exercised utmost diligence and employed adequate
Fire – not considered as a natural calamity or disaster precautionary measures to secure safety of passengers
since the incident was foreseeable. .
Fire caused by lightning – a natural calamity HOWEVER, if the stone throwing was entirely
unforeseeable and the carrier exercised the utmost
Hijacking – does not fall under the categories of exempting causes; the diligence, then, the bus can’t be held liable.
common carrier is presumed to be at fault or to have acted negligently Nonetheless, the burden of proof is on the carrier to
unless there is a proof of extraordinary diligence on its part prove such exercise of diligence. It is up to the carrier to
overthrow the presumption of negligence.
Mechanical defects – damage or injury resulting from mechanical If the passenger decides to file a case, al the passenger
defects is not a damage or injury that was caused by fortuitous event; has to do is to prove that she was a passenger of the bus
carrier is liable to its passengers for damages caused by mechanical and that she suffered injuries while on board the bus.
defects of the conveyance (breakage of a faulty drag-link spring,
fracture of the vehicle’s right steering knuckle, defective breaks) (b) Supposing that there were armed men who staged a
- One of the reason why carrier is made liable despite the hold-up while the bus was speeding along the highway.
presence of mechanical defect is the absence of privity One of them stole the passenger’s bag and wallet while
between the passenger and the manufacturer pointing a gun him. Is the bus liable?
Answer: No. Hand-carried luggages are governed by
Case: Juntilla v. Fontanar necessary deposit. Besides, theft with use of arms or
- “Tire-blowouts” was not considered as fortuitous event although through irresistible force is a force majeure which
it was alleged that the tires were in good condition; no evidence exempts carriers from liability.
was presented to show that the evidence were due to adverse
road conditions – the carrier must prove all angles. 3. Hi-jacking cannot exculpate the carrier from liability if it is
shown that the employees of the carrier were not
overwhelmed by the hijackers and that there was no - Depredation by pirates (which are enemy of all civilized nation)
showing of irresistible force. Since, there were 4 employers excuses the carrier from liability.
while there were only 2 hijackers and only one of them was - Common carriers may be exempted from responsibility only if the
armed with bladed weapon. act of the public enemy has been the proximate and only cause of
ON THE OTHER HAND, a hijacking by 3 armed men is an the loss. Moreover, due diligence must be exercised to prevent or
event which is considered to be beyond the control of the at least minimize the loss before, during and after the
carrier. Thus, the carrier may be adjudged from liability if it performance of the act of the public enemy in order that the
can be proven that the hijacking was unforeseeable. carrier may be exempted from liability for the loss, destruction, or
deterioration of the goods.
Case: Philippine American General Insurance Co. vs. MCG
- Even in cases where a natural disaster is the proximate and IMPROPER PACKING
only cause of the loss, a common carrier is still required to
exercise due diligence to prevent or minimize loss before, Character of the goods and defects in the packaging or in the
during and after the occurrence of the natural disaster, for it containers are defenses available to the common carrier. Similarly, the
to be exempt from liability under the law for the loss of the Carriage of Good by Sea Act provides that carrier shall not liable for:
goods 1. Wastage in bulk or weight or any damages arising form the
inherent defect, quality or vice of goods;
Case: Pilapil vs. CA 2. Insufficiency of packing;
- Facts: a bystander alongside national highway hurled a stone 3. Insufficiency or inadequacy of the marks, or
at the left side of the bus, hitting petition above his left eye 4. Latent defects no discoverable by due diligence.
which resulted to partial loss of the left eye’s vision
- SC: A common carrier does not give its consent to become an However, NCC likewise provides:
insurer of any and all risks to passengers and goods. It merely Art. 1742. Even if the loss, destruction, or deterioration of the goods
undertakes to perform certain duties to the public as the law should be caused by the character of the goods, or the faulty nature
imposes, and holds itself liable for any breach thereof. of the packing or the containers, the common carrier must exercise
- The law does not make the carrier an insurer of the absolute due diligence to forestall or lessen the loss.
safety of its passengers
- Article 1763: A common carrier is responsible for injuries Thus, if the carrier accepted the goods knowing the fact of improper
suffered by a passenger on account of the willful acts or packing or even if the carrier does not know but the defect was
negligence of other passengers or of strangers, if the nonetheless apparent upon ordinary observation, it is not relived
common carrier’s employees through the exercise of the from liability for loss or injury to goods resulting therefrom.
diligence of a good father of a family could have prevented or
stopped the act or omission Cases:
o Clearly, a tort committed by a stranger which 1. Problem: A carrier knowing that some of a cargo of sacks of
causes injury to a passenger does not accord the rice had big holes and others had openings just loosely tied
latter a cause of action against the carrier. The with strings resulting to the spillage of rice during the trip.
negligence for which a common carrier is held Thus, there was shortage in the delivery of the cargoes.
responsible is the negligent omission by the When sued due to the shortage, the carrier interposed a
carrier’s employees to prevent the tort from being defense that it was not liable since the shortage was due to
committed when the same could have been the defective condition of the sacks. Decide.
foreseen and prevented by them Answer: Carrier must still exercise extraordinary diligence if
the fact of improper packing is known to the carrier or its
Case: Franklin Gacal vs. PAL servants, or apparent upon ordinary observation. If the
- It is therefore not enough that the event should not have carrier accepted the cargo without protests or exception
been foreseen or anticipated, as is commonly believed, but it notwithstanding such condition, he is not relived of liability
must be one impossible to foresee or to avoid. for damage resulting therefrom. Apply Article 1742.
- The mere difficulty to foresee the happening is not the
impossibility to foresee the same ORDER OF PUBLIC AUTHORITY
PUBLIC ENEMY Art. 1743. If through the order of public authority the goods
are seized or destroyed, the common carrier is not responsible,
- Presupposes a state of war and refers to the government of a provided said public authority had power to issue order.
foreign nation at war with the country to which the carrier
belongs, though not necessarily with that to which the owner of Cases:
the gods owes allegiance. 1. Carrier was not excused from liability since the order of an
- Thieves, rioter, and insurrectionists are not included. They are acting mayor was not considered as a valid order of a public
merely private depredators for whose acts a carrier is answerable. authority. It is required that public authority who issued the
- Rebels in insurrection against their own government are generally order must be duly authorized to issue the order.
not embraced in the definition of public enemy. However, if the 2. Carriage of Goods by Sea Act – provides that carrier shall not
rebels hold a portion of territory, they have declared their responsible for loss or damage resulting from “arrest or
impendence, cast off their allegiance and has organized armed restraint of princes, rulers, or people, or seizure under legal
hostility to the government, and the authority of the latter is at process” and from “quarantine restrictions”.
the time overthrown, such an uprising may take on the dignity of
a civil war, and so matured and magnified, the parties are
belligerent and are entitled to belligerent rights.
DEFENSES IN CARRIAGE OF PASSENGERS
Article 1759. Common carriers are liable for the death of or injuries to
- Primary defense of carrier is exercise of extraordinary diligence in passenger through the negligence or willful acts of the former’s
transporting passengers. Even if there is a fortuitous event, the carriers employees, although such employees may have acted beyond the
must also present proof of exercise of extraordinary diligence. scope of their authority or in violation of the orders of the common
carriers.
Art. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the carrier’s PASSENGER’S BAGGAGES
employees, although such employees may have acted beyond the - The term baggage has been defined to include whatever
scope of their authority or in violation of the orders of the common articles a passenger usually takes with him for his own personal
carriers. use, comfort and convenience
The liability does not cease even upon proof that they exercised - Rules that are applicable to goods that are being shipped are
diligence in the selection and supervision of their employees. also applicable to baggage delivered to the custody of the
carrier. Arts. 1733. 1734 and 1736 of Civil Code are applicable.
Art. 1763. Carrier is responsible for injuries suffered by a passenger - However, if the luggage was hand-carried, Arts. 1998, 2000-
on account of the willful acts or negligence of other passengers or of 2003 shall apply.
strangers, if the common carrier’s employees through the exercise of
the diligence of a good father of a family could have prevented or Distinction: W/N the baggage is in the personal custody of the
stopped the act or omission. passenger.
if yes, hand carried baggage
a. Employees if no, checked-in baggage
- Carrier is liable for the acts of its employees. It can’t escape
liability by claiming that it exercised due diligence in Art. 1998. The deposit of effects made by the travellers in hotels or
supervision and selection of its employees (unlike in quasi- inns shall also be regarded as necessary. The keepers of hotels or inns
delicts). shall be responsible for them as depositaries, provided that notice
was given to them, or to their employees, of the effects brought by
Reasons for the rule: the guests and that, on the part of the latter, they take the
1. Undertaking of the carrier requires that its passenger that precautions which said hotel-keepers or their substitutes advised
full measure of protection afforded by the exercise of high relative to the care and vigilance of their effects. (1783)
degree of care prescribed by law, inter alia from violence and
insults at the hands of strangers and other passengers, but Art. 2000. The responsibility referred to in the two preceding articles
above all, from the acts of the carrier’s own servants. shall include the loss of, or injury to the personal property of the
2. The liability of the carrier for the servant’s violation of duty guests caused by the servants or employees of the keepers of hotels
to performance of his contract to safely transport the or inns as well as strangers; but not that which may proceed from any
passenger, delegating therewith the duty of protecting the force majeure. The fact that travellers are constrained to rely on the
passenger with utmost care prescribed by law. vigilance of the keeper of the hotels or inns shall be considered in
3. As between the carrier and the passenger, the former must determining the degree of care required of him. (1784a)
bear the risk of wrongful acts or negligence of the carrier’s
employees against passenger, since it, and not the
Art. 2001. The act of a thief or robber, who has entered the hotel is
passenger, has the power to select and remove them.
not deemed force majeure, unless it is done with the use of arms or
through an irresistible force. (n)
Rationale: On the other hand, if the ship owner derives profits
from the results of the choice of the captain and the crew,
when the choice turns out successful, it is also just that he Art. 2002. The hotel-keeper is not liable for compensation if the loss
should suffer the consequences of an unsuccessful is due to the acts of the guest, his family, servants or visitors, or if the
appointment, by application of the rule of natural law loss arises from the character of the things brought into the hotel.
contained in the partidas --- that he who enjoys the benefits (n)
derived from a thing must likewise suffer the losses that
ensue therefrom Art. 2003. The hotel-keeper cannot free himself from responsibility
by posting notices to the effect that he is not liable for the articles
- Note: Willful acts of the employees include theft brought by the guest. Any stipulation between the hotel-keeper and
the guest whereby the responsibility of the former as set forth in
b. Other Passengers and Third Persons articles 1998 to 2001 is suppressed or diminished shall be void. (n)
Art. 1762. The contributory negligence of the passenger does not bar Case: Compania Maritima vs. CA and Vicente Concepcion
recovery of damages for his death or injuries, if the proximate cause - While the act of private respondent in furnishing petitioner
thereof is the negligence of the common carrier, but the amount of with an inaccurate with of the payloader cannot successfully
damages shall be equitably reduced. be used as an excuse by petitioner to avoid liability to the
damage thus caused, said act constitutes a CONTRIBUTORY
a. Last Clear Chance CIRCUMSTANCE to the damage caused on the payloader,
which mitigates the liability for damages of petitioner in
accordance with Article 1741.
A negligent carrier is liable to a negligent passenger in placing himself
in peril, if the carrier was aware of the passenger’s peril, or should
Case: Philippine National Railways vs. CA
have been aware of it in the reasonable exercise of due care, had in
- While petitioner failed to exercise extraordinary diligence as
fact an opportunity later than that of the passenger to avoid an
required by law, it appears that the deceased was chargeable
accident.
with contributory negligence.
- Since he opted to sit on the open platform between the
Last clear chance applies in a suit between the owners and drivers of coaches of the train, he should have held tightly and
colliding vehicles. It does not arise where a passenger demands tenaciously on the upright metal bar found at the side of said
responsibility from the carrier to enforce its contractual obligations. platform to avoid falling off from the speeding train
For it would be inequitable to exempt the negligent driver of the
carrier and its owner on the ground that the other driver was likewise
guilty of negligence.
B. FREIGHT (2) Carrier’s Lien
a. Amount to be Paid If consignor or the consignee fails to pay the consideration for the
transportation of goods, the carrier may exercise his lien in accordance
The regulation of rates is founded upon the valid exercise of the Police with Art. 375 of Code of Commerce:
Power of the state in order to protect the public from arbitrary and
excessive rates while maintaining the efficiency and quality of services ARTICLE 375. The goods transported shall be especially bound to
rendered. The fixing of just and reasonable rates involves a balancing answer for the cost of transportation and for the expenses and fees
of investor and the consumer interest. incurred for them during their conveyance and until the moment of
their delivery.
Although the consideration that should be paid to the carrier is still This special right shall prescribe eight days after the delivery has been
subject to the agreement between parties, what can be agreed upon made, and once prescribed, the carrier shall have no other action than
should not be beyond the maximum amount fixed by appropriate that corresponding to him as an ordinary creditor.
government agency.
DEMURRAGE
b. Who will pay
Demurrage is the compensation provided for the contract of
Although either of the shipper or the consignor may pay the freight affreightment for the detention of the vessel beyond the time agreed
before or at time the goods are delivered to the carrier for shipment, on for loading and unloading. It is the claim for damages for failure to
nonetheless, it is the consignor (whom the contract of carriage is accept delivery. In broad sense, very improper detention of a vessel
made) who is primarily liable for the payment of freight whether or not may be considered a demurrage. Technically, liability for demurrage
he is the owner of the goods. The obligation to pay is implied from the exists only when expressly stipulated in the contract.
mere fact that the consignor has placed the goods with the carrier for
the purpose of transportation. Using the term in broader sense, damages in the nature of demurrage
are recoverable for a breach of the implied obligation to load or unload
c. Time to pay the cargo with reasonable dispatch, but only by the party to whom the
duty is owed and only against on who is a party to the shipping
Code of Commerce provides that in the absence of any agreement, the contract. Notice of arrival of vessels or conveyances, or their
consignee who is supposed to pay must do so within 24-hours from the placement for purposes of unloading is often a condition precedent to
time of delivery. the right to collect demurrage charges.
Article 374. The consignees to whom the shipment was made may CHAPTER 3
not defer the payment of the expenses and transportation charges of EXTRAORDINARY DILIGENCE
the goods they receive after the lapse of twenty-four hours following
their delivery; and in case of delay in this payment, the carrier may I. RATIONALE
demand the judicial sale of the goods transported in an amount A common carrier is bound to carry the passengers safely as
necessary to cover the cost of transportation and the expenses far a human care and foresight provide, using the utmost diligence of
incurred. very cautious persons, with due regard for all circumstances.
(1) Carriage of Passengers by Sea Extraordinary diligence: Calculated to protect the passengers
from the tragic mishaps that frequently occur in connection with rapid
With respect to carriage of goods by sea, the tickets are purchased in modern transportation.
advance. Carriers are not supposed to allow passengers without tickets
--- the carrier is bound to observe a “No Ticket, No Boarding Policy”. II. HOW DUTY IS COMPLIED WITH
The carrier shall collect/ inspect the passenger’s ticket within one hour - There is no hard and fast rule in the exercise of extraordinary
from vessel’s departure as not to disrupt resting or sleeping diligence
passengers. - Common carrier binds itself to carry the passengers safely as
far as human care and foresight can provide, using the
If the vessel is not able to depart on time and the delay is utmost diligence of a very cautious person, with due regard
unreasonable, the passenger may opt to have his/ her ticket refunded for all the circumstances.
without refund service fee. - The duty even extends to the members of the crew or
Delayed voyage means “late departure of the vessel from its port of complement operating the carrier
origin and/ or late arrival of the vessel to its port of destination”.
Unreasonable delay means “the period of time that has lapsed without Case: Kapalaran Bus Lines vs. Coronado
just cause and is solely attributable to the carrier which has prejudiced - If common carriers carefully observed the statutory standard
the transportation of the passenger and/ or cargoes to their port of of extraordinary diligence in respect of their own passengers,
destination. they cannot help but simultaneously benefit pedestrians and
the owners and passengers of other vehicles who are equally
A passenger who failed to board the vessel can refund or revalidate the entitled to the safe and convenient use of our roads and
ticket subject to surcharges. Revalidation means “the accreditation of highways
the ticket that is not used and intended to be used for another voyage.
A reasonable man or a good father of a family in the position of the
carrier must exercise extraordinary diligence in the performance of his
contractual obligation.
- Generally, what should be determines is whether or not a compliance with all maritime laws. Passengers cannot
reasonable man, exercising extraordinary diligence, could be expected to inquire everytime they board a common
have foreseen and prevented the damage or loss that carrier, whether the carrier possesses the necessary
occurred. papers or that all the carrier’s employees are qualified.
- It is the carrier that carries such burden of proving that
III. EFFECT OF STIPULATION the ship is seaworthy.
- Sufficient evidence must be submitted and the
A. GOODS presentation of certificates of seaworthiness is not
- The parties cannot stipulate that the carrier will NOT exercise sufficient to overcome the presumption of negligence.
ANY diligence in the custody of goods
- The law allows a stipulation whereby the carrier will exercise c. Meaning of Seaworthiness
a degree of diligence which is less than extraordinary with - A vessel must have such degree of fitness which an
respect to goods. owner who is exercising extraordinary diligence would
require his vessel to have at the commencement of the
Art. 1744. A stipulation between the common carrier and the voyage, having regard to all the probable circumstances
shipper owner limiting the liability of the former for the loss, of it. This includes fitness of the vessel itself to
destruction, or deterioration of the goods to a degree less withstand the rigors of voyage, fitness of the vessel to
than extraordinary diligence shall be valid, provided it be: store the cargoes and accommodate passengers to be
transported and that it is adequately equipped and
1. In writing, signed by the shipper/owner; properly manned.
2. Supported by a valuable consideration other than the - Seaworthiness is that strength, durability and
service rendered by the common carrier (Note: Typically engineering skill made a part of a ship’s construction
fare/freight); and and continued maintenance, together with a competent
3. Reasonable, just and contrary to public policy. and sufficient crew, which would withstand the
vicissitudes and dangers of the elements which might
B. PASSENGERS reasonably be expected or encountered during her
- There can be no stipulation lessening the utmost diligence voyage without loss or damage to her particular cargo
that is owed to passengers.
Example: The carrier was able to establish that the ship itself was
Art. 1757. The responsibility of a common carrier for the seaworthy because the records reveal that the vessel was dry-docked
safety of passengers as required in Arts. 1733 and 1755 and inspected by the Phil. Coast Guard before its first destination.
cannot be dispensed with or lessened by stipulation, by the
posting of notices, by statements on tickets, or otherwise. A warranty of seaworthiness requires that it be properly laden, and
(Note: Absolute; extraordinary at all times.) provided with a competent master, a sufficient number of competent
officers and seamen, and the requisite appurtenances and equipment.
Gratuitous passenger – A stipulation limiting the common carrier’s The carrier shall be bound before and at the beginning of the voyage to
liability for negligence is valid, but not for willful acts of gross exercise due diligence to:
negligence. The reduction of fare does not justify any limitation. 1. Make the ship seaworthy;
2. Properly man, equip, and supply the ship;
Case: Lara vs. Valencia 3. Make all parts of the ship in which goods are carried, fit
- Diligence owed to accommodation passengers is only and safe for their reception, carriage, and preservation.
ordinary diligence
- However, this case is not controlling with respect to common The carrier shall properly and carefully load, handle, stow, carry, keep,
carriers because the defendant in the said case was not a care for, and discharge the goods carried.
common carrier
Note: Seaworthiness is relative it its construction and its application
IV. EXTRAORDINARY DILIGENCE IN CARRIAGE BY SEA depends on the facts of a particular case (ex. Length and nature of the
voyage)
A. SEAWORTHINESS
Fitness of the Vessel Itself
a. Warranty of Seaworthiness of Ship - It is necessary that the vessel can be expected to meet the
- This is the first step that should be undertaken normal hazards of the journey
- Extraordinary diligence requires that the ship which will - General Test of Seaworthiness: Whether the ship and its
transport the passengers and goods is seaworthy. appurtenances are reasonably fit to perform the service
- Seaworthiness of the vessel is impliedly warranted. undertaken.
- The carrier shall be bound before and at the beginning
of the voyage to exercise due diligence to make the ship The ship must be “cargoworthy”
seaworthy. - Even if the vessel was properly maintained and is free from
defect, the carrier must not accept the goods that cannot
properly be transported in the ship
b. No duty to inquire - The ship must be efficiently strong and equipped to carry the
- Because of the implied warranty of seaworthiness, particular kind of cargo which she has contracted to carry
shippers of goods, when transacting with common and her cargo must be so loaded that it is safe for her to
carriers, are not expected to inquire into the vessels proceed on her voyage.
seaworthiness, genuineness of its licenses and
The vessel must be adequately equipped and properly manned. its charge after the vessel’s holds were duly inspected and
- On top of regular maintenance and inspection, Captains, passed scrutiny by the shipper, up to and until the vessel
masters or patrons of vessels must prove the skill, capacity, reached its destination and its hull was re-examined by the
and qualifications necessary to command and direct the consignee, but prior to unloading
vessel. - A ship owner is liable for damage to the cargo resulting from
- If the owner of a vessel desires to be the captain without improper stowage ONLY when the stowing si done by
having the legal qualifications, he shall limit himself to the stevedores employed by him, and therefore under his
financial administration of the vessel and shall entrust the control and supervision, not when the same is done by the
navigation to a qualified person. consignee or stevedores under the employ of the latter
Note: It is not an excuse that the carrier cannot afford the salaries of
competent and licensed crew or that latter is unavailable. E. DEVIATION AND TRANSSHIPMENT
Cargo must generally not be placed on deck. The carrying of deck cargo 2. Transshipment
raises the presumption of unseaworthiness unless it can be shown that - The act of taking cargo out of one ship and loading it into
the deck cargo will not interfere with the proper management of the another; to transfer goods from the vessel stipulated in the
ship. contract of affreightment to another vessel before the place
of destination named in the contract has been reached.
D. NEGLIGENCE OF CAPTAIN AND CREW - Transshipment of freight without legal excuse is a violation of
the contract and subjects the carrier to liability if the freight
- Failure on the part of the carrier to provide competent is lost even by a cause otherwise excepted.
captain and crew should be distinguished from the
negligence of the said captain and crew, because the latter is Note: there is transshipment whether or not the same person, firm or
covered by the Limited Liability Rule (liability of the entity owns the vessels (what matters is the actual physical transfer of
shipowner may be limited to the value of the vessel). cargo from one vessel to another)
- If the negligence of the captain and crew can be traced to the
fact that they are really incompetent, the Limited Liability V. EXTRAORDINARY DILIGENCE IN CARRIAGE BY LAND
Rule cannot be invoked because the shipowner may be
deemed negligent. A. CONDITION OF VEHICLE
- Common carriers that offer transportation by land are
Rules on passenger safety similarly required to make sure that the vehicles that they
- Negligence on the part of the captain and crew as well as the are using are in good order and condition.
operator includes failure to comply with the regulation
issued by the Maritime Industry Authority (MARINA) on the Rule on Mechanical Defects – If the carriers will replace certain parts of
safety of the passengers the motor vehicle, they are duty bound to make sure that the parts
- Memorandum Circular No. 112 : passengers do not merely that they are purchasing are not defective. Hence, it is a long-standing
contract for transportation because they have the right to be rule that a carrier cannot escape liability by claiming that the accident
treated by the carrier and its employees with kindness, that resulted because of a defective break or tire is due to a fortuitous
respect, courtesy and due consideration. They are entitled to event. This is true even if it can be established that the tire that was
be protected against personal conduct, injurious language, subject of a blow-out is brand new. The duty to exercise extraordinary
indignities and abuses from the said carrier and its diligence requires the carrier to purchase and use vehicle parts that are
employees not defective.
- Read Memorandum Circular No. 114: p. 204
B. TRAFFIC RULES
Case: Planters Products Inc. vs. CA - The carrier fails to exercise extraordinary diligence if it will
- The period during which private respondent was to observe not comply with basic traffic rules. The Civil Code provides
the degree of diligence required of it as a public carrier for a presumption of negligence in case the accident occurs
began from the time the cargo was unconditionally placed in
while the operator of the motor vehicle is violating traffic - Thus the carrier was obligated to make the necessary
rules. arrangements to transport the passenger on the first
available flight.
In cases involving breach of contract of carriage, proof of violation of
traffic rules confirms that the carrier failed to exercise extraordinary A. INSPECTION
diligence. - It is the duty of the carrier to make inquiry as to the general
nature of the articles shipped and of their value before it
Case: Mallari Sr and Jr vs. CA consents to carry them; and its failure to do so cannot defeat
- The rule is settled that a driver abandoning his proper lane the shipper’s right to recovery of full value of the package if
for the purpose of overtaking another vehicle in an ordinary lost, in the absence of showing of fraud or deceit on the part
situation has the duty to see to it that the road is clear and of the shipper.
not to proceed if he cannot do so in safety
Where a common carrier has reasonable ground to suspect that the
C. DUTY TO INSPECT offered goods are of a dangerous character, the carrier has the right to
- There is no unbending duty to inspect each and every know the character of such goods and to insist inspection, if
package or baggage that is being brought inside the bus or reasonable and practical under the circumstances, as a condition of
jeepney. The carrier is duty bound to conduct such receiving and transporting such goods. To be subjected to unusual
inspection depending on the circumstances. search, other than the routinary inspection procedure customarily
undertaken, there must exist proof that would justify cause for
Case: Nocum vs. Laguna Tayabas Bus Company apprehension that the baggage is dangerous as to warrant exhaustive
- While it is true the passengers of appellant’s bus should not inspection, or even refusal to accept carriage of the same.
be made to suffer for something over which they had no
control, fairness demands that in measuring a common Case: Northwest Airlines vs. Laya
carrier’s duty towards its passengers, allowance must be - The fact that the plaintiff was greatly inconvenienced by the
given to the reliance that should be reposed on the sense of fact that his attaché case was subjected to further inspection
responsibility of all the passengers in regard to their common does not warrant imposition of liability because he was not
safety. singled out and discriminated by the employees of the carrier
- It is to be presumed that a passenger will not take with him - Protection of passengers must take precedence over
anything dangerous to the lives and limbs of his co- convenience
passengers not to speak of his own. - Nevertheless, the implementation of security measures must
- Not to be lightly considered is the right to privacy to which be attended by basic courtesies
each passenger is entitled
- In other words, inquiry may be verbally made as to the CHAPTER 4
nature of a passenger’s baggage when such is not outwardly BILL OF LADING
perceptible, but beyond this, constitutional boundaries are
already in danger of being transgressed I. CONCEPTS, DEFINITION AND KINDS
- SC held that carrier has succeeded in rebutting the
presumption of negligence by showing that it has exercised Bill of Lading (BOL)
extraordinary diligence for the safety of its passenger, - a written acknowledgement, signed by the master of a vessel
according to the circumstances of each case or other authorized agent of the carrier, that he has received
the described goods from the shipper, to be transported on
Note: although overland transportation are not bound nor empowered the expressed terms to be described the place of destination,
to make an examination on the contents of packages or bags and to be delivered to the designated consignees of the
particularly those hand carried by passengers, such is different with parties.
regards to an airline company. - It operates as a (1) RECEIPT (2) as a CONTRACT (3) as a
DOCUMENT OF TITLE.
VI. EXTRAORDINARY DILIGENCE IN CARRIAGE BY AIR
- The aircraft must be in such a condition that it must be able A BOL is not necessary for the perfection of a contract of carriage.
to withstand the rigors of flight. Thus, the obligation to exercise extraordinary diligence by the carrier is
still required even if there is no bill of lading.
Airworthiness – An aircraft, its engines propellers, and other
components and accessories, are of proper design and construction, In the absence of the bill of lading, disputes shall be determined on
and are safe for air navigation purposes, such design and construction the basis of the provisions in the New Civil Code and suppletory by the
being consistent with accepted engineering practice and in accordance Code of Commerce.
with aerodynamic laws and aircraft science.
KINDS of BILL of LADING:
Proof of airworthiness is not by itself sufficient to prove exercise of
extraordinary diligence. 1. Clean Bill of Does not contain any notation indicating any
Lading defect in the goods.
Case: Japan Airlines vs. CA 2. Foul Bill of One that contains the abovementioned notation.
- The fact that the flight was cancelled due to fortuitous event Lading
does not mean that the carrier’s duty already ended. The 3. Spent Bill of The goods are already delivered but the bill of
carrier is still obligated to look after the convenience and Lading lading was not yet returned (upon delivery, the
comfort of the passenger carrier is supposed to retrieve the covering bill of
the goods)
4. Through Bill Issued by a carrier who is obliged to use the II. CONTRACT
of Lading facilities of other carriers as well as his own - It expresses the terms and conditions of the agreement
facilities for the purpose of transporting the between the parties; names the parties; includes consignees
goods from the city of the seller to the city of the etc. It is the law between the parties bound by its terms and
buyer, which BOL is honored by the second and conditions.
other interested carriers who don’t issue their
own BOL. Contracts of Adhesion
5. On Board -states that the goods have been received on - It is to be construed liberally in favor of the shipper who
Bill board the vessel which is to carry the goods. adhered to such bill as it is a contract of adhesion. The only
-apparently guarantees the certainty of shipping participation of the party is the signing of his signature or his
as well as the seaworthiness of the vessel to adhesion thereto.
carry the goods. - The shipper or passenger is bound by the terms and
-basically means that the goods are already conditions if there is no occasion to speak of ambiguities or
inside the vessel obscurities
6. Received -states that the goods have been received for - If the words appear to be contrary to the evident intention of
for Shipment shipment with or without specifying the vessel the parties, the latter shall prevail over the former
Bill by which the goods are to be shipped.
-issued when conditions are not normal and ART. 24 (NCC). In all contractual property or other relations, when one
there is insufficiency of shipping space. of the parties is at a disadvanatge on account of his moral dependence,
7. Custody Bill The goods are already receied by the carrier but ignorance indigence, mental weakness, tender age and other handicap,
of Lading the vessel indicated therein has not yet arrived the court must be vigilant for his protection.
in the port.
Parole Evidence Rule
8. Port Bill of The vessel indicated in the BOL that will
- BOL is covered by the parol evidence rule, that the terms of
Lading transport the goods is already in the port.
the contract are conclusive upon the parties and evidence
aliunde is not admissible to vary or contradict a complete
Note: A party to a maritime contract would require an on board bill of enforceable agreement, subject to well defined exceptions
lading because of its apparent guaranty of certainty of shipping as well - The mistake contemplated as an exception to the parol
as the seaworthiness of the vessel which is to carry the goods. evidence rule is one which is a mistake of fact mutual to the
parties.
- Note that if such is not raised inceptively in the complaint or
Effectivity of BOL in the answer, a party cannot later on be permitted to
- upon its delivery to and acceptance by the shipper. introduce parol evidence thereon
- The acceptance of the bill without dissent raises the
presumption that all the terms therein were brought to the Bill of Lading as Evidence
knowledge of the shipper and agreed to by him, and in the - The BOL is the legal evidence of the contract and the entries
absence of fraud or mistake, he is stopped thereafter from thereof constitutes prima facie evidence of the contract.
denying that he assented to such claims (whether he reads - All the essential elements of a valid contract (cause, consent,
the bill or not) object) are present when such bill are issued.
THE 3-FOLD NATURE OF THE BILL OF LADING III. ACTIONABLE DOCUMENT/DOCUMENT OF TITLE
- The three fold nature of a bill of lading is obviously applicable - In a contractual obligation, the bill of lading can be
only to carriage of goods categorized as an actionable document under the Rules of
- As receipt and document of title: issued for goods Court. Hence, the bill of lading must be properly pleaded
- As contract: applies to tickets issued to passengers either as causes of action or defenses
- ART 1507 (NCC). A document of title in which it is stated that
I. RECEIPT the goods referred to therein will be delivered to the bearer
- As comprehending all methods of transportation, a or to the order of any person named in such document is a
BOL may be defined as a written acknowledgement of the negotiable document of title.
receipt of goods and an agreement to transport and to
deliver them at a specified place to a person named or on his - If the document of title contains the required words of
order. negotiability to make the instrument negotiable under Article
- Other terms, “shipping receipts”, “forwarders receipts”, and 1507 of the NCC, the document remains to be negotiable
“receipts for transportation”. even if the words “not negotiable” or non negotiable are
- (SC) the designation however is not material, and neither is places thereon
the form of the instrument. If it contains an
acknowledgement by the carrier of the receipt of goods for o a. Bearer document- negotiated by delivery
transportation it is, in legal effect a BOL. o b. Order document- negotiated by indorsement of
- The issuance of a bill of lading carries the presumption that the specified person so named
the goods were delivered to the carrier issuing the bill, for
immediate shipment, and it is nowhere questioned that a bill - Effects of negotiation. Negotiation of the document has the
of lading is prima facie evidence of the receipt of the goods effect of manual delivery so as to constitute the transferee
by the carrier the owner of the goods.
BASIC STIPULATIONS goods by sea act does not apply to misdelivery. (Ang v. American SS
- Provided for in the Code of Commerce Agencies (19 SCRA 631)
- (for overland transportation, maritime commerce and
electronic documents, please refer to the textbook for the CARRIAGE OF GOODS BY SEA ACT (C.A. No. 65)
codal pp. 203-210)
- Applies suppletorily to the Civil Code if the goods are to be
PROHIBITED AND LIMITING STIPULATION shipped form a foreign port to the Philippines
- COGSA is applicable in international maritime commerce. It
1. Exempting the carrier from any and all liability for loss or can be applied in domestic sea transportation if agreed upon
damage occasioned by its own negligence - INVALID as it is by the parties. (paramount clause)
contrary to public policy. - Under the Sec. 4 (5), the liability limit is set at $500 per
2. Parties may stipulate that the diligence to be exercised by package unless the nature and value of such goods is
the carrier for the carriage of goods be less than declared by the shipper. This is deemed incorporated in the
extraordinary diligence if it is: bill of lading even if not mentioned in it (Eastern Shipping v.
a. in writing and signed by both parties IAC, 150 SCRA 463).
b. supported by a valuable consideration other than - If by agreement, another maximum amount than that
the service rendered by the common carrier mentioned may be fixed provided that such maximum shall
c. the stipulation is just, reasonable and not contrary not be less than $500 and in no event shall the carrier be
to law. liable for more than the amount of damage actually
3. Providing an unqualified limitation of such liability to an sustained
agreed valuation - INVALID
4. Limiting the liability of the carrier to an agreed valuation Note that Art. 1749 of the NCC applies to inter-island trade.
unless the shipper declares a higher value and pays a higher
rate of freight- VALID and ENFORCEABLE. Meaning of Package
- If the goods are shipped in cartons, each carton is considered
Note: the purpose of limiting stipulations in the bill of lading is to a package even if they are stored in container vans
protect th common carrier. Such stipulation obliges the - When what ordinarily be considered packages are shipped in
shipper/consignee to notify the common carrier of the amount that a container supplied by the carrier and the number of such
the latter may be liable for in case of loss of the goods units is disclosed in the shipping documents, each of those
units and not the container constitutes the package.
Remember:
1. The parties cannot stipulate so as to totally exempt the Prescriptive periods
carrier from exercising any degree of diligence whatsoever - Suit for loss or damage to the cargo should be brought within
2. The parties cannot stipulate that the common carrier shall one year after:
exercise diligence less than the diligence of a good father of a a. delivery of the goods; or
family b. the date when the goods should be delivered. (Sec.
3[6])
RECOVERY OF DAMAGES FROM CARRIER FOR CARRIAGE OF GOODS:
1. Inter-island - if goods arrived in damaged condition (Art. 366): The one-year prescriptive period is suspended by:
a. If damage is apparent, the shipper must file a claim immediately (it 1. express agreement of the parties (Universal Shipping Lines,
may be oral or written); Inc. v. IAC, 188 SCRA 170)
b. If damage is not apparent, he should file a claim within 24 hours 2. when an action is filed in court until it is dismissed. (Stevens
from delivery. & Co. v. Nordeutscher Lloyd, 6 SCRA 180)
The filing of claim under either (1) or (2) is a condition precedent for
recovery. Things to Remember:
If the claim is filed, but the carrier refuses to pay: enforce carrier’s 1. Article 1757 provides that the responsibility of a common
liability in court by filing a case: carrier to exercise utmost diligence for the safety of
a. within 6 year, if no bill of lading has been issued; or PASSENGERS CANNOT be dispensed with or lessened by
b. within 10 years, if a bill of lading has been issued. stipulation or statement on tickets or otherwise
2. Article 1750 of the Civil Code provides that a contract fixing
2. Overseas –where goods arrived in a damaged condition from a the sum that may be recovered by the owner or shipper for
foreign port to a Philippine port of entry: (COGSA) the loss, destruction, or deterioration of the GOODS is VALID,
a. upon discharge of goods, if the damage is apparent, claim should be if it is REASONABLE and JUST under the circumstances, and
filled immediately; has been FAIRLY AND FREELY AGREED UPON
b. if damage is not apparent, claim should be filled within 3 days from 3. It is unfair to deny the shipper the right to declare the actual
delivery. value of his cargos and to recover such true value in case of
loss or damage
Filing of claim is not a condition precedent, but an action must be filed Note: it has been suggested that the signature of the shipper
against the carrier within a period of 1 year from discharge; if there is in the bill of lading with regards to the limitation applies only
no delivery, the one-year period starts to run from the day the vessel to reduction of diligence and not to the stipulated amount to
left port (in case of undelivered or lost cargo), or from delivery to the be paid.
arrastre (in case of damaged cargo). 4. It is unjust and contrary to public policy if the common
Where there was delivery to the wrong person, the prescriptive period carrier’s liability for acts committed by thieves, or of robbers
is 10 years because there is a violation of contract, and the carriage of who do not act with grave or irresistible threat, violence or
force, is dispensed with or diminished
5. The common carrier may EXEMPT itself from liability if he shall not lose its international character merely because one contract
can prove that: or a series of contracts is to be performed entirely within a territory
a. He observed extraordinary diligence subject to the sovereignty, suzerainty, mandate, or authority of the
b. The proximate and only cause of the incident is a same High Contracting Party. (Art. 1)
fortuitous event or force majeure
c. The proximate and only cause of the loss is the NOTE: Warsaw prevails over the Civil Code, Rules of Court and all
character of the goods or defects in the packing or laws in the Philippines since an international law prevails over
in the containers general law.
d. The proximate and only cause of the loss is the
order or act of competent public authority WHEN NOT APPLICABLE:
Note: to limit its liability or at least mitigate the same, the 1. If there is willful misconduct on the part of the carrier’s
carrier can cite CONTRIBUTORY NEGLIGENCE of the plaintiff employees. The Convention does not regulate, much less
and the DOCTIRNE OF AVOIDABLE CONSEQUENCES exempt, carrier from liability for damages for violating the
rights of its passengers under the contract of carriage (PAL v.
Case: Sea-Land Service Inc. vs. IAC CA, 257 SCRA 33). --- if the damage is similarly caused by any
- Liability of a common carrier for loss of or damage to goods agent of the carrier acting within the scope of his
transported by it under a contract of carriage is governed by employment
the laws of the country of destination 2. when it contradicts public policy;
- COGSA is applicable up to the final port of destination and 3. if the requirements under the Convention are not complied
that the fact that transshipment was made on an interisland with.
vessel did not remove the contract of carriage of goods from LIABILITY OF CARRIER FOR DAMAGES:
the operation of said Act. 1. Death or injury of a passenger if the accident causing it took
place on board the aircraft or in the course of its operations;
Case: Citadel Lines Inc. vs. CA (Art. 17)
- The duty of the consignee is to prove merely that the goods 2. Destruction, loss or damage to any luggage or goods, if it
were lost. Thereafter, the burden is shifted to the carrier to took place during the carriage; (Art. 18) and
prove that it has exercised the extraordinary diligence 3. Delay in the transportation of passengers, luggage or goods.
required by law. And, its extraordinary responsibility lasts (Art. 19)
from the times that goods are unconditionally placed in the
possession of, and received by the carrier for transportation NOTE: The Hague Protocol amended the Warsaw Convention by
until the same are delivered, actually or constructively, by removing the provision that if the airline took all necessary steps to
the carrier to the consignee or to the person who has the avoid the damage, it could exculpate itself completely (Art. 20(1)).
right to receive them (Alitalia v. IAC, 192 SCRA 9)
Case: Everett Steamship Corporation vs. CA Remember: The said provisions merely declare the carrier liable for
- Considering that the shipper did not declare a higher damages in the enumerated cases if the conditions therein specified
valuation it had itself to blame for not complying with the are present. Neither said provisions nor others in the aforementioned
situations Convention regulate or exclude liability for OTHER BREACHES of
- The trial court’s ratiocination that private respondent could contract of carrier.
not have “fairly and freely” agreed to the limited liability
clause in the bill of lading because the said conditions were The Convention does not thus operate as an exclusive enumeration of
printed in small letters does not make the bill of lading the instances of an airline’s liability, or as an absolute limit of the
invalid extent of that liability.
Case: Monica Roldan vs. Lim Ponzo and Co. This rule applies in collision cases. The one (1) year period starts
- Article 366 of the Commercial Code is limited to cases of not from the date of the collision but when the goods should
claims for damage to goods actually turned over by the have been delivered, had the cargoes been saved.
carrier and received by the consignee.
Case: Maritime Agencies and Services Inc. vs. CA
But the period prescribed in Art. 366 may be subject to - When there is two destination of delivery, the one year
modification by agreement of the parties. period should commence when the last item was delivered
The validity of a contractual limitation of time for filing the suit to the consignee.
itself against a carrier shorter than the statutory period thereof
has generally been upheld as such stipulation merely affects Insurance
the shipper’s remedy and does not affect the liability of the The insurer who is exercising its right of subrogation is also
carrier. bound by the one (1) year prescriptive period.
However, it does not apply to the claim against the insurer for
b) Extinctive Prescription the insurance proceeds. The claim against the insurer is based
- six (6) years if there is no written contract (bill of lading) on contract that expires in ten (10) years.
- ten (10) years if there is written contract
II. Recoverable Damages
This rule likewise applies to carriage of passengers for domestic Damages – is the pecuniary compensation, recompense or
transportation. satisfaction for an injury sustained, or as otherwise expressed,
the pecuniary consequences which the law imposes for the
B. International Carriage of Goods by Sea breach of some duty or violation of some rights.
A claim must be filed with the carrier within the following
period: A. Extent of Recovery (Contractual Breach: Art. 220, NCC)
1. if the damage is apparent, the claim should be filed Carrier in good faith – is liable only to pay for the damages
immediately upon discharge of the goods; or that are the natural and probable consequences of the
2. within 3 days from delivery, if damage is not apparent. breach of the obligation and which the parties have foreseen
or could have reasonably foreseen at the time the obligation
was constituted.
Carrier in bad faith or guilty of gross negligence – liable for all mental anguish by reason of the death of the
damages, whether the same can be foreseen or not. Those deceased
which may be reasonably attributed to the non-performance
of the obligation.
1) Loss of earning capacity
Note: The carrier who may be compelled to pay has the right of
recourse against the employee who committed the negligent, willful or Net Earning Capacity = Life Expectancy x [Gross Annual Income less
fraudulent act. Necessary Living Expenses]
In case of goods – the plaintiff is entitled to their value at the b) Moral Damages
time of destruction. The award is the sum of money which - Includes physical suffering, mental anguish, fright, serious anxiety,
plaintiff would have to pay in the market for identical or besmirched reputation, wounded feelings, moral shock, social
essentially similar goods humiliation and similar injury.
For personal injury and even death – the claimant is entitled to - Though incapable of pecuniary computation, moral damages may
all medical expenses as well as other reasonable expenses that be recovered if they were the proximate result of the defendant’s
he incurred to treat his or her relative’s injuries. wrongful act or omission.
In case of death – the plaintiff is entitled to the amount that he - Moral damages are not awarded to punish the defendant but to
spent during the wake and funeral of the deceased. But, compensate the victim
expenses after the burial are not compensable. - May be recovered when there is death or there is malice or bad
Read Art. 2206 (Civil Code): faith. (in transportation of passengers)
death caused by a crime or quasi-delict shall be at - Refer to Art. 2219 and 2220 (enumerates cases when moral
least P3,000; [The amount of fixed damages is now damages may be awarded)
P50,000.00] - Generally, no moral damages may be awarded where the breach
the defendant shall be liable for the loss of the of contract is not malicious.
earning capacity of the deceased; - Moral damages may be awarded if the contractual negligence is
If deceased is obliged to give support, recipient considered gross negligence.
may demand support from the person causing the - Subject to three conditions in transportation law:
death for a period not exceeding five years o Death
Spouse, legitimate and illegitimate descendant and o Malice or bad faith (must be done in the
descendants may demand moral damages for performance of the contract of carriage)
o Physical Injuries intended as an indemnity or a penalty, shall be equitably
- Requisites: reduced if they were iniquitous or unconscionable.
o There must be an injury, whether physical, mental
or psychological, clearly sustained by the claimant f) Exemplary or Corrective Damages
o There must be a culpable act or omission factually - Requisites for the award of exemplary damages:
established 1. They may be imposed by way of example in addition to
o The wrongful act or omission of the defendant is compensatory damages, and only after the claimant’s right
the proximate cause of the injury sustained by the to them has been established.
claimant 2. They cannot be recovered as a matter of right, their
o The award of damages is predicated on any of the determination depending upon the amount of compensatory
cases stated in Art. 2219. damages that may be awarded to the claimant.
3. The act must be accompanied by bad faith or done in
- Factors to consider that could affect the amount to be wanton, fraudulent, oppressive or malevolent manner.
recovered:
o The extent of humiliation may also determine the Note: If gross negligence warrants the award of exemplary damages,
amount of moral damages that can be awarded with more reason is its imposition justified when the act performed is
o The extent of pain and suffering likewise deliberate, malicious and tainted with bad faith. The rationale behind
determines the award exemplary or corrective damage is to provide an example or correction
o Official, political, social and financial standing of from public good.
the offended party and the business and financial
position of the offender affect the amount of The award of exemplary damages in breach of contract of
damages carriage is subject to the provisions under Art. 2232-2235 of the
o The age of the claimant. Civil Code.
c) Nominal Damages
- Refer to Art. 2221-2223 (Civil Code) Case: Air France vs. Rafael Carrascoso and CA
- It is adjudicated in order that the right of plaintiff may be - The inference of bad faith is there; it may be drawn from the
vindicated or recognized, and not for the purpose of indemnifying facts and circumstances set forth therein. The contract was
the plaintiff for any loss suffered by him. averred to establish the relation between the parties.
- The assessment of nominal damages is left to the discretion of the - Deficiency in the complaint in stating that there was bad
court according to the circumstances of the case. faith, if any, was cured by the evidence.
- The award of nominal damages is also justified in the absence of
competent proof of the specific amounts of actual damages Case: Philippine Airlines Inc. vs. CA
suffered. - Moral damages are recoverable in a breach of contract of
- Cannot co-exist with actual damages. carriage where the air carrier thought its agents acted
- There is no loss in nominal damages, unlike in actual and fraudulently or in bad faith.
temperate damages, loss is present which is proven and not - The contract of air carriage generates a relation attended
proven but rather ascertained by the court, respectively. with a public duty. Neglect or malfeasance of the carrier’s
employees naturally could give ground for an action for
damages.
MARITIME LAW
Case: Japan Airlines vs. CA
- The award of moral damages was justified because JAL failed A. CONCEPTS (Chapter 6)
to make necessary arrangement to transport the plaintiffs on
the first available connecting flight to Manila. Maritime Law – is the system of laws which particularly relates to the
- Only Nominal damages were awarded in the absence of affairs and business of the sea, to ships, their crews and navigation and
proof of actual damages to marine conveyance of persons and property
e) Liquidated Damages Case: Philippine Shipping Company, et al. vs. Francisco Garcia Vergara
- Those agreed by the parties to a contract, to be paid in case That which distinguishes the maritime from the civil law and
of breach thereof. even from the mercantile law in general is the real and
- Ordinarily, the court cannot change the amount of liquidated hypothecary nature of the former
damages agreed upon by the parties. However, Art. 2227 of
the Civil Code provides that liquidated damages, whether Evidence of this “real “ nature of maritime law:
o The limitation of the liability of the agents to the
actual value of the vessel and the freight money Art. 587: ship agent may exempt himself of the civil liabilities for the
o The right to retain the cargo and the embargo and indemnities in favor of third persons by abandoning vessel with all
detention of the vessel even cases where the equipments and freight it earned during voyage
ordinary civil law would not allow more than a
personal action against the debtor or person liable Art. 590: co-owners civilly liable in proportion to their interest and may
exempt liability by abandonment of the part of the vessel belonging to
This repeals the civil law to such extent that, in certain cases him
where the mortgaged property is lost no personal action lies
against the owner or agent of the vessel Limited liability rule – means that the liability of a shipowner for
damages in case of loss is limited to the value of his vessel.
Two reasons why it is impossible to do away with these No vessel, no liability.
privileges: The civil liability for collision is merely co-existent with the
o The risk to which the thing is exposed interest in the vessel; if there was total loss, liability is also
o The real nature of maritime law, exclusively real, extinguished.
according to which the liability of the parties is
limited to a thing to which is at mercy of the waves GR: If the ship is totally lost, liability is extinguished. If the ship or part
thereof still exists, he can escape liability by abandoning the vessel, its
Case: Aboitiz Shipping Corporation vs. General Accident Fire and Life appurtenances and its freight.
Assurance Corporation, Ltd.
Case: Monarch Insurance Co., Inc. vs. Court of Appeals
The real and hypothecary nature of maritime law simply The total destruction of the vessel extinguishes maritime
means that the liability of the carrier in connection with liens because there are no longer any res to which it can
losses related to maritime contracts is confined to the vessel, attach. This doctrine is based on the real and hypothecary
which is hypothecated for such obligations or which stands nature of maritime law.
as the guaranty for their settlement
Purpose: It was designed to offset such adverse conditions Note: Since the Civil Code contains no provision regulating liability of
and to encourage people and entities to venture into shipowners or agents in the event of total loss or destruction of the
maritime commerce despite the risks and prohibitive cost of vessel, Article 587 of the Code of Commerce governs.
shipbuilding
Thus, the liability of the vessel owner and agent arising from Article 837, 587 and 590 of Code of Commerce cover only:
the operation of such vessel were confined to the (1) vessel 1. Liability to third persons
itself, (2) its equipment, (3) freight, (4) and insurance if any, 2. Acts of the captain
which limitation served to induce capitalists into effectively 3. Collisions
wagering their resources against the consideration of the
large profits attainable in trade EXCEPTIONS TO THE LIMITED LIABILITY RULE
1. Where the injury or death to a passenger is due either to the
Real – similar to transactions over real property where to effect against fault of the shipowner, or to the concurring negligence of the
third persons, registration is necessary shipowner and the captain (NEGLIGENCE)
Hypothecary – the liability of the owner of the value of the vessel is GR: Shipowner is liable for the negligence of the captain in
limited to the vessel itself collision cases
---- liability is limited to value of the vessel
STATUTORY PROVISIONS Limited liability rule applies if the captain or the crew caused
the damage or injury as when unseaworthiness of the vessel
Article 837, 587, 590 and 643 – provides for limited liability of was caused by the negligence of the captain or crew during
shipowner. (read full provision) the voyage
However, if the failure to maintain the seaworthiness of the
Art. 837: civil liability incurred by the ship owner: liability limited to vessel can be ascribed to the shipowner alone or the
value of the vessel + appurtenances + freightage earned during voyage shipowner concurrently with the captain, then the limited
liability principle cannot be invoked --- LIABILITY FOR THE
Art. 643: vessel and cargo lost by reason of capture or wreck: all rights DAMAGES IS TO THE FULL EXTENT (ex. Overloading,
shall be extinguished, both as regards the crew to demand any wages unseaworthiness even at the time of departure)
whatsoever, and as regards the ship agent to recover the advances
made 2. Where the vessel is insured (INSURANCE)
If a portion of the vessel or of the cargo, or both, should be
saved, the crew engaged on wages, including the captain, shall retain Limited liability rule does not apply to insurance claims
their rights on the salvage, so far as they go, on the remainder of the Case: Vasquez vs. CA
vessel as well on the amount of the freightage of the cargo saved; but
sailors who are engaged on shares shall not have any right whatsoever - The total loss of the vessel did not extinguish the
on the salvage of the hull, but only the portion of the freightage saved. liability of the carrier’s insrured
If they should have worded to recover the remainder of the - Despite the loss of the vessel, therefore, its insurance
shipwrecked vessel they shall be given from the amount of the salvage answers for the damages that a shipowner or agent,
an award in proportion of the efforts made and to the risks may be held liable for by reason of the death of its
encountered in order to accomplish the salvage passengers.
3. In the workmen’s compensation claims (WORKER’S ADMIRALTY JURISDICTION (RTC)
COMPENSATION) - Section 19 (3) of BP 129 as amended by RA 7691
(3) In all actions in admiralty and maritime
The provisions of the Code of Commerce have no room in jurisdiction where the demand or claim exceeds 300,
the application of the Workmen’s Compensation Act which 000 or in Metro manila, where such demand or claim
seeks to improve, and aims at the amelioration of, the exceeds 400,000.
condition of laborers and employees - if less MTC
If an accident is compensable under the Workmen’s
Compensation Act, it must be compensated even when the 3 concepts: (they are the same)
workman’s right is not recognized by or is in conflict with
other provisions of the Civil Code or of the Code of 1. real and hypothecary --- the supreme court did not explain the
Commerce literal meaning of it.
Liability under the Workmen’s compensation Act, even if the - real: refers to the risk in maritime that’s why there are privileges for
vessel was lost, is still enforceable against the employer or the shipowner. Risks are certain to happen
shipowner. - hypothecary: remember guaranty and collateral which is the vessel.
For the particular voyage, the guaranty is the vessel wherein if the
4. Expenses for repairs and provisioning of the ship prior to the vessel is lost, the shipowner no longer has the liability
departure thereof
2. limited liabililty rule --- no literal explanation
5. The vessel is not abandoned (ABANDONMENT) - limited: it means that the liability is limited to the value of the vessel
Abandonment of the vessel, its appurtenances and the -liability: assumption that the shipowner is liable for the losses. There
freightage is an indispensable requirement before the are no valid defenses that shipowner can invoke to escape liability.
shipowner or ship agent can enjoy the benefits of the limited Same concept with 1479. Difference is that there is a fixed amount and
liability rule. If the carrier does not want to abandon the there is qualification
vessel, he is still liable even beyond the value of the vessel -under the limited liability – no fixed amount but amount is confined
The only instance where abandonment is dispensed with is on the vessel
when the vessel was entirely lost. In such case, the obligation
is extinguished. The question here: is this a right to limit the liability?
Only shipowner and ship agent can make an abandonment A: admittedly it is a right that only shipowner can exercise
Q: is it really an exception in its strict sense? Since a vessel is a personal property, it can be mortgaged…
A: Not really (CAPANAS). What is the implication if you properly invoke Same concept with mortgage but different rule
the LLRule – the plaintiff cannot avail beyond the value of the vessel. - PD 1521:
If not apply – plaintiff will recover more than the value of vessel
subject to rules on claiming of damages. Q: what about process of extra judicial foreclosure of vessel?
A: chattel mortgage law should govern
But question, if vessel if covered with insurance, does this mean that
plaintiff can recover to the amount applied? No, they can only recover Q: what to remember under PD 1521?
until the coverage of the insurance proceeds. A: Section 4
registration, non waiver
3. Negligence Section17: priority of claims…
- common carrier is presumed negligent if common carrier. However,
this does not apply when there is an invocation on limited liability. (in Q: are there claims in maritime law over and above preferred
all cases except MONARCH vs. CA) --- the rest of the case, the court has mortgage?
found negligence based on the facts presented. You cannot invoke A: yes. Look at section 17.
presumption of negligence so that limited liability rule will not apply.
Case: Poliand Industrial
Monarch _-- SC: since there is a presumption of negligence then LLR - facts shows that the proceeds debted from hardwood was for the
will not apply. But SC also said that if LLR is invoked, the initial burden modification of the vessel (extended for vessels benefit), for crews
to invoke negligence shifts to the shipowner. They should prove that wage
there is no privity or knowledge on the negligence of the ship captain.
Characteristics of maritime lien:
Q: what is the relationship of Civil Code and LLR? 1. maritime property
A: There is none. Under 1766 in all matters not provided by Civil Code, 2. travels with the property--- it cannot be extinguished
Code of Commerce or Special law will apply. There is no rule in Civil 3. enforceable in an action in rem--- action directed to the property
Code in limited liability rule thus Code of Commerce will apply. (but in (crescent case: ang gi kiha ang vessel)
monarch, this was not applied--- all the negligence was related to the
absence of exercising extraordinary diligence) Under section 22: persons authorize to procure repairs (presumed):
1. managing agent
Note: that in the subsequent cases, Consolidated of Aboitiz case: there 2. ship’s husband --- agent of the vessel
were findings of facts of the negligence of Aboitiz. The point is when it
comes to LLR, the Code of Commerce apply. You cannot invoke If mortgagor does not pay:
presumption of negligence. In order to refute, petitioner should prove 1. judicial foreclosure – file actual case and implead the vessel as party
negligence. defendant (served to captain or authorized person); you can ask the
REMEMBER: PROVE THE FACTS OF NEGLIGENCE. Not presumption. court order to arrest the vessel.
2. extrajudicial
Loadstar case - the problem with vessel, mortgagee is not in possession of the vessel.
- the shipowner is aware of the typhoon It is with the mortgagor, you cannot sell the property not in your
- insufficient manning – negligent possession.
- Captain playing mahjong – there was negligence. But SC said that it
was negligent because the shipowner did not prove that it was the In PD 1521—the order of arrest can be asked
first. Supposedly facts are established in court proceedings and not on Grounds to discharge
presumption. 1. irregularly issued (mortgagee na ilad. Wala pa diay due obligation
2. posting of a bond to discharge..the bond to be posted is double the
3. no vessel, no liability value of the claim.
Maritime lien on necessaries (5 requisites) – brief yourself cresent provision of the civil code or other appropriate special provisions
petroleum case (look at book for requisites) of law.
Case: Yu Con vs. Ipil Article 574. Builders of vessels may employ the materials and follow,
- The word vessel serves to designate every kind of craft by with respect to their construction and rigging, the systems most
whatever particular or technical name it may not be known suitable to their interests. Ship owners and seamen shall be subject to
or which nautical advancements may give it in the future what the laws and regulations of the public administration on
- The court held that a small vessel used for the transportation navigation, customs, health, safety of vessels, and other similar
of merchandise by sea and for the making of voyages from matters.
one port to another of these Islands, equipped and victualed
for this purpose by its owner, is a vessel, within the purview PERSONAL PROPERTY
of the Code of Commerce, for the determination of the
character and effect of the relations created between the Vessels are considered personal property under the Civil Law. The
owners of the merchandise laden on it and its owner Code of Commerce likewise expressly acknowledges the special nature
of a vessel as personal property.
When the mercantile code speaks of vessels, they refer solely and
exclusively to mercantile ships, as they do not include warships, Case: Philippine Refining Company vs. Jargue
and furthermore, they almost always refer to craft which are not - Vessels are personal property although occasionally referred
accessory to another as in the case of launches, lifeboats and etc. to as a peculiar kind of personal property
- They are subject to mortgage agreeably to the provisions of
Further, they refer exclusively to those which are engaged in the the Chattel Mortgage Law
transportation of passengers and freight from one port to - The only difference between a chattel mortgage of a vessel
another or from one place to another and a chattel mortgage of other personality is that it is not
now necessary for a chattel mortgage of a vessel to be noted
They refer to merchant vessels and in NO WAY can they or should in the registry of the register of deeds, but it is essential that
they be understood as referring to pleasure craft, yachts, a record of documents affecting the title to a vessel be
pontoons, health service and harbor police vessels, etc. entered in the record of the Collector of Customs at the port
of entry
Ships ought to be understood in the sense of vessel serving the
purpose of maritime navigation or seagoing vessel, and not in the Case: Rubiso and Calixto vs. Rivera
sense of vessel devoted to the navigation of rivers - Ships or vessels, whether moved by steam or by sail, partake,
to a certain extent, of the nature and conditions of real
The third book of the code of commerce, dealing with maritime property, on account of their value and importance in the
commerce, was evidently intended to define laws relative to world of commerce
merchant vessels and maritime shipping; and as appears from - Transfer of vessels should be in writing and must be recorded
said code, the vessel intended in that book are such run by in the appropriate registry
masters having special training with elaborate apparatus of crew
and equipment indicated in the code. 2. OWNERSHIP
For purposes of Maritime Commerce: Broad sense: includes both (1) those whose duty it is to guide vessels
The words “captain” and “master” have the same meaning; both into or out of ports, or in particular waters; and (2) those entrusted
being chiefs or commanders of ships. Thus, the terms “captain” with the navigation of vessels on the high seas.
and “master” are used synonymously in the Code of Commerce.
General understanding: a person taken on board at a particular place
MARINA regulations: for the purpose of conducting a ship through a river, road or channel,
MASTER – the person having command of the ship. The same term is or from a port.
being used both for domestic trade and international trade.
COMPULSORY PILOTAGE. In compulsory pilotage, states possessing
BOAT CAPTAIN – a person authorized by the MARINA to act as officer harbors enacted laws or promulgated rules requiring vessels
and/or in command of a boat/ship or has the qualification/license approaching their ports to take on board pilots licensed under local
to act as such. law. In the Philippines, compulsory pilotage is being implemented in
the Port of Manila, the latter being within the Manila Pilotage District.
3 Distinct Roles a captain commonly performs:
(Inter-Orient Maritime case) a. Master and Pilot (See Far Eastern Shipping case on page 520 of
1. He is a GENERAL AGENT OF THE SHIPOWNER; the Aquino book for the SC discussion on the duties of a pilot)
2. He is a COMMANDER and TECHNICAL DIRECTOR of the vessel
(most important role for this has something to do with the b. Shipowner and Pilot
operation and preservation of the vessel during its voyage and the
protection of the passengers, if any, and crew and cargo); GENERAL RULE: the pilot is PERSONALLY LIABLE for damages
3. He is a REPRESENTATIVE OF THE COUNTRY under whose flag he caused by his own negligence or default to the OWNERS of the
navigates. vessel, and to THIRD PARTIES for damages sustained in a collision.
Such negligence of the pilot in the performance of duty
Based on the first aforementioned role, the captain is regarded as the constitutes a MARITIME TORT.
GENERAL AGENT of the shipowner and as such, he:
In cases of COLLISION: the COLLIDING VESSEL is prima facie
a. Has authority to sign bills of lading; responsible, hence, the burden of proof is upon the party
b. Carry goods aboard and deal with the freight earned; claiming benefit of the exemption from liability. Thus, it must be
c. Agree upon rates and decide whether to take cargo; shown affirmatively that the pilot was at fault, and that there was
d. Has legal authority to enter into contracts with respect to the no fault on the part of the officers or crew, which might have
vessel and the trading of the vessel, subject to applicable been conducive to the damage. The fact that the law compelled
limitations established by statute, contract or instructions and the master to take the pilot does not exonerate the vessel from
regulations of the shipowner. liability. The injured party shall seek redress from the vessel. The
All aforementioned functions verily commits to the captain the owners of the vessel are responsible to the injured party for the
governance, care, and management of the vessel. Clearly then, the acts of the pilot, and they must be left to recover the amount as
captain is vested with both MANAGEMENT and FIDUCIARY functions. well as they can against him.
CODE OF COMMERCE PROVISIONS ON CAPTAINS (See page 528 of the Note: there is not distinction of liability of shipowner and ship agent.
Aquino book) They are civilly liable
OFFICERS AND CREW OF VESSELS There is a situation in maritime law that shipower and agent they are
held liable for the act or omission of a third person which is the ship
COMPLEMENT OF A VESSEL (Art. 648, Code of Commerce) captain or master.
-- all the persons on board from the captain to the cabin boy,
necessary for the management, maneuvers, and service, and ACTS of CAPTAIN
therefore, it includes the CREW, the SAILING MATES, ENGINEERS, Case: Yucon case and Sweetlines case
STOKERS, and OTHER EMPLOYEES ON BOARD not having specific - In Yucon, money was entrusted to the captain and the
designations; but it SHALL NOT INCLUDE the passengers or the persons money was lost. SC concluded that shipowner was liable for
whom the vessel is transporting. the lost because the captain failed to put up measures while
in custody of the money. It may not technically to an act but
REGULATION OF MERCHANT MARINE PROFESSION may refer to admission but would fall under the term acts
The practice of marine profession is now governed by special laws and - In sweetlines, bound for catbalogan but the captain chose to
pertinent rules issued by the: allow the passengers to disembark in tacloban. This time, this
- MARINA; is the act of captain. The SC concluded that the damages
- BOARD OF MARINE DECK OFFICERS; sustained by passengers bound for catbalogan are to
- BOARD OF MARINE ENGINEER OFFICERS shouldered by the shiponwer
MINIMUM SAFE MANNING Indemnities in Favor of 3rd person: OTTA devt case sited in walter smith
It is not enough that the officers manning the merchant vessel case
have all the qualifications imposed by the Philippine Merchant - In OTTA the owner of the pier was at the same time the
Marine Officers Act and other special laws or regulations. It is also owner of the goods. SC, because there was a relationship of
required that there is sufficient number of officers and crew that owner of vessel and goods, then there is presumption of
are serving in the vessel. (Quality and Quantity) negligence new civil code prevails
- Walter smith case: There was no relationship. Owner of port
SECURITY OF TENURE and owner of goods are different. What was applied by court
The Labor Code provisions apply to OFFICERS and CREW of was the law on torts. No presumption of negligence. There
merchant vessels in DOMESTIC Trade or COASTWISE Shipping. should be proof of negligence. The owner of vessel proved
Hence, matters concerning their dismissal or disciplinary action that he exercised ordinary diligence (required in ports). What
must be in accordance with provisions of the Labor Code. For was presented was the competence of shipcaptain. The
officers and crew who are working in foreign vessels who are shipowner proved ordinary diligence in choosing the ship
involved in overseas shipping, there must be compliance with the captain
applicable laws on overseas employment as well as regulations
issued by the Philippine Overseas Employment Administration Contracts entered into by shipcaptain or master
(POEA).
Inter orient case: one role is they are the general agent of the
CODE OF COMMERCE PROVISIONS on Sailing Mates, Second Mate and shipowener. But if the obligation contracted by the captain does not
Marine Engineer, Crew, and Captain (See pages 552-560 of the Aquino enure to the benefit of the vessel, then the shipowner has no liability.
book). There is no conflict bec. 586 obligations contracted by the shipper
while 1759 death or injury of passenger as result of contract of
Parties --- those provided above… plus seamen, other members of the carriage.
complement including the stokers (incharge of boilers) and supercargo
(agent of the shippers who has authority to sell goods while on voyage) The case in point with the contracts entered into was the case Wing
Kee. There were supplies delivered. Shipagent was said to be liable. SC
4 maritime contracts
said at the time you were still an agent you were liable but at the time D. CHARTER PARTIES
agency was terminated you are no longer liable.
Charter Parties
If both SO and SA are sued, being solidarily liable, the SA has right of - a contract whereby the entire ship, or some of the principal part,
recourse over SO. is let by the owner to a merchant or other person for a specified
time or use for the conveyance of goods, consideration of
Shipcaptain or master payment of freight
- The difference is with regard to the tonnage of the vessel - it is a contract, hence, parties are free to stipulate upon such
(higher: captain; lower: master; major patron and minor terms and conditions that would suit their purposes subject to the
patron) caveat that these should not be contrary to law or public policy
- The question on the shipcaptain or master is the exercise of
discretion Parties
- Inter orient case: captain tayong did not want to proceed 1. Charterer- merchant or a person who desire s to lease ship or vessel
with the voyage from Singapore to Africa bec. Of lack of owned by another by transport of his or her goods for commercial
oxygen and acetylene. But because of order of management purposes or persons from one port to another
he proceeded. He was then ordered to repatriated and then 2. Shipowner (SO)
another captain took his place. He filed for illegal dismissal.
The issue was the discretion exercised by the captain. WON KINDS:
he has the discretion not to proceed bec. Of lack of supply. 1. bareboat or demise charterer – shipowner leases to the charterer
SC said you should emphasize reasonable discretion--- it is the whole vessel, transferring to the charterer the entire command,
the captain’s duty possession and consequent control over the vessel’s navigation,
- Inter Orient: triple roles of the captain --- general agent, including the master and the crew, who becomes the charterer’s
commander and technical manager, representative of “servants”
country - charterer becomes an owner “pro hac vice”
Shipcaptain and harbor pilot 2. Contract of affreightment – charterer hires the vessel only, either for
- Harbor pilot: distinguish if voluntary or compulsory a determinate period of time or for a single or consecutive voyage,
- Case cited by SC on proper relationship of captain and pilot. with the SO providing for the provision of the ship, wages of the
In far eastern shipping case 521 3rd par --- ther are occasion master and crew, and expenses for maintenance of the vessel
when the master may and should interfere and even displace a. time charter – vessel is leased to a charterer for a fixed
the pilot when he is obviously incapacitate and intoxicated…. period of time
(look at the book) b. voyage charter – vessel is leased for a single or particular
- In this case, there is relevance on when the captain should voyage
interfere. If it is voluntary (pilot engaged by shipowner) ---
damages caused by pilot, shipowner is liable. If compulsory,
shipowner can escape liability REQUISITES OF A VALID CHARTER PARTY
- If compulsory distinguish whether there was circumstances 1. consent of the contracting parties
that would require the shipcaptain to interfere with the ship 2. an existing vessel which should be placed at the disposition
pilot. If there are circumstances but captain did not interfere of the shipper
then shipowner is liable. If there are circumstances and 3. the freight
captain interfere but still there is damage, the shipowner will 4. compliance with requirements of art 652 of Code of
not be liable. commerce
- Cebu Port Authority --- covered by compulsory pilotage (Aticle 652 of the Code of Commerce provides that the
charter party shall contain, among others, the name,
Chiefmate or sailing mate (then there are engineers) surname, and domicile of the charterer, and if he states that
- 2008 case, citing the article the code of commerce specifying he is acting by commission, that of the person for whose
the functions of chiefmate being second in command of the account he makes the contract.)
vessel… Chiefmate is a managerial employee (as provided in
labor code --- loss of trust and confidence Caltex v. Sulpicio Lines
- There was a voyage charter; collision between MT Vector (tanker) and
Seaman Doña Paz (owned by Sulpicio) ; breach of contract filed by the
- On security of tenure: distinguish DOMESTIN (labor code) passengers’s heirs against Sulpicio ; 3d party complaint against
abroad (POEA).. there is a standard contract (poea prepared registered owner of the tanker including Caltex ( that they were
and drafted it and every seaman shall comply with this --- negligent and in bad faith by not seeing to it that the tanker was
this is to protect filipino seaman working abroad) that will be seaworthy)
signed by every seaman stipulating the security of tenure,
repatriation, benefits, etc. Issue: WON charterer shall be liable under Maritime Law?
- Difference for abroad: bigger income but contractual (after
contract go home).. DOMEstic, you can be a regular Ruling: Liability cannot be attached to Caltex; the charter did not affect
employee in accordance with the labor code the business of Sulpicio as a common carrier ; rights and
- JumpShip scenario: it is a valid ground to terminate a seaman responsibilities of ownership still rested on the owner
Art. 1752. Even when there is an agreement limiting the liability of EXCEPTIONS:
the common carrier in the vigilance over the goods, the common 1. On the portion of the vessel he owns, provided no money has been
carrier is disputably presumed to have been negligent in case of their previously borrowed on the whole vessel, nor exists any other kind of
loss, destruction or deterioration. lien or obligation chargeable against her.
2. When he is permitted to do so, he must necessarily state what
Art. 1753. The law of the country to which the goods are to be interest he has in the vessel.
transported shall govern the liability of the common carrier for their CONTENTS OF THE LOAN CONTRACT:
loss, destruction or deterioration. 1. kind, name and registry of the vessel;
2. name, surname and domicile of the captain;
Art. 1754. The provisions of Articles 1733 to 1753 shall apply to the 3. names, surnames and domiciles of the borrower and the lender;
passenger's baggage which is not in his personal custody or in that of 4. amount of the loan and the premium stipulated;
his employee. As to other baggage, the rules in Articles 1998 and 5. time for repayment;
2000 to 2003 concerning the responsibility of hotel-keepers shall be 6. goods pledged to secure repayment;
applicable. 7. voyage during which the risk is run (Art.721)
ART. 653. if the cargo should be received without the charter party WHO MAY CONTRACT:
having been signed, the contract shall be understood as executed In
1. Bottomry – by the ship owner or ship agent; outside of the
accordance with what appears in the bill of lading, the sole evidence of
residence of the owners, the captain.
title with regard to the cargo for determining the rights and obligations
2. Respondentia – only the owner of the cargo
of the ship agent, captain and charterer
DISTINCTIONS:
- If there is charter party or bill of lading (BOL) = no contract at all; but
according to Blanco, if there is delivery and receipt of cargo combined BOTTOMRY/ RESPONDENTIA ORDINARY LOAN
with the GF and mutual consent = contract present , better than BOL 1. Not subject to Usury Law 1. Subject to Usury Law
E. LOANS ON BOTTOMRY AND RESPONDENTIA 2. Liability of the borrower is 2. Not subject to any
contingent on the safe arrival of contingency
LOAN ON BOTTOMRY – loan made by shipowner or ship agent the vessel or cargo at destination
guaranteed by vessel itself and repayable upon arrival of vessel at 3. The last lender is a preferred 3. The first lender is a
destination; vessel/portion creditor preferred creditor
LOAN ON RESPONDENTIA – loan, taken on security of the cargo laden 4. Must have a collateral 4. May or may not have
on a vessel, and repayable upon safe arrival of cargo at destination; collateral
cargo/goods 5. Collateral is the vessel or cargo 5. Maybe property, real or
subject to maritime risk personal
COMMON ELEMENTS OF LOANS ON BOTTOMRY AND RESPONDENTS: 6. Must be in writing 6. Need not be in writing but
1. Exposure of security to marine peril; interest shall not be due unless
2. Obligation of the debtor conditioned only upon safe arrival of the expressly stipulated in writing
security at the point of destination. 7. To be binding on third person 7. Need not be registered
must be recorded in the registry
Requisites of a Loan on Bottomry/Respondentia: of vessels of port of registry of
1. Shipowner borrows money for use, equipment or repair of the vessel
vessel 8. Loss of collateral extinguishes 8. Does not extinguished if
the same there is a loss of the collateral
(if any) of the vessel must be mortgaged (no jurisprudence on this
matter whether a part of the vessel can be mortgaged)
- In bottomry the whole or the part of the vessel can be the
Consequences of loss of effects of the loans
subject
- IF the part of the vessel can be pledged, is it necessary that
1. Effects of loans be lost due to accident of the sea during the time,
there should be goods? No. no need for goods.
and on the occasion of the voyage which has been designated in the
contract and proven that the cargo was on board
RESPONDENTIA
- lender losses the right to institute the action which would pertain to
- The vessel should have goods. The goods must be laden in
him
the vessel
- Is it necessary that the boat is on voyage? The vessel must be
Except: when the loss was
in the actual course of voyage because this is the objective of
1. caused by inherent defect of the thing
the law. Because if the vessel is docked in the port the owner
2. through fault or malice of the borrower
can simply obtain loans. And besides there is no risk when
3. through barratry on the part of the captain
the vessel is docked (but no jurisprudence)
4. caused by damages suffered by the vessel as a
consequence of being engaged in a contraband
Distinction of this two types of loan vs. SIMPLE LOAN (for purposes of
5. loaded the goods on a vessel different from that
the bar) --- 5 differences
designated in the contract unless the change was caused by
1. with respect to form --- can you validly execute a bottomry or
force majeure
respondentia verbally? You cannot. Bec under the code of commerce
no judicial action can arise when the contract is not reduced in writing.
2. The lenders on bottomry or respondentia shall suffer in proportion
But this is not the case in simple loan. But in simple loan you take note
to their respective interest, the general average which may take place
the statute of frauds… if not in writing B and R, you can dismiss case
in the things upon which the loans were made.
due to failure to state cause of action.
3. In case of shipwreck, the amount for payment of the loan shall be
Q: why hardly used at present?
deduced to the proceeds of the effects which have been saved but
A: because of sophistication. Captains can just call up any agent the
only after deducting the costs of the salvage.
shipowner to deliver anything for the use of the vessel to deliver. …
This contract was recognized in medieval times.
4. If the loan should be on the vessel or any of her parts, the freight
earned during the voyage for which the loan was contracted shall also
be liable for its payment, as far as it may reach.
F. AVERAGES AND COLLISIONS
5. If the same vessel or cargo should be the object of the loan of
ACCIDENTS IN MARITIME COMMERCE:
Bottomry or respondentia and maritime insurance, the value of what
1. Averages
may be saved in case of shipwreck shall be divided between the lender
2. Arrival Under Stress
and the insurer, in proportion to the legitimate interest of each one,
3. Collision
taking in consideration, for this purpose only, the principal with
4. Shipwreck
respect to the
* Averages – an extra-ordinary or accidental expense incurred during
Maritime contracts include charter parties… and loans on bottomry
the voyage in order to preserve the cargo, vessel or both; and all
and respondentia are considered maritime contracts
damages or deterioration suffered by the vessel from departure to the
Q: why do we have to study this topic? Are these relevant?
port of destination, and to the cargo from the port of loading to the
A: they are hardly used at present. However, we have to study this just
port consignment. (Art. 806)
in case this will be asked in the bar. Especially in the unique terms used
in this topic..
CLASSES OF AVERAGES:
A. Particular or Simple Average
General provisions in contracts will govern
B. Gross or General Average
Basic provision you should not forget:
A. Particular or Simple Average
1. there should be a marine risk
2. the condition that the vessel or the goods has perished then the
Damage or expenses caused to the vessel or cargo that did not inure
right of the lender to collect everything as well as stipulated interest is
to common benefit, and borne by respective owners. (809)
extinguished
The owner of the goods which gave rise to the expense or suffered
(not sure if there are other more.. basin ala ko kaapas)
th e damage shall bear this average. (Art. 810)
res perit domino applies
BOTTOMRY
if the vessel or goods are hypothecated by loan on bottomry and
- It may refer to the vessel
respondentia, the lender shall bear the loss in proportion to his
- The bottom or the hull or the kill of the vessel can be pledged
interest
in this case
- The whole vessel can be a subject of a security or collateral
Examples: see article 809 of the code of commerce
- PD. 1521: (is this different) --- loan is the principal, mortgage
is the accessory.
- The contract of bottomry is principal, the mortgage under pd
1521 is merely a security
- In pd 1521 under section 4 it is a requirement that the whole
Art. 817: if in lightening of a vessel on account of a storm to facilitate
RULES ON AVERAGES: its entry to a port or roadstead, part of the cargo should be transferred
1. Averages is defined as damage deliberately caused or an expense to barges or lighters and be lost, the owner of the said part is entitled
deliberately incurred due to a marine peril and which has resulted to indemnity as if the loss originated from a gross average, the amount
in saving both vessel and cargo or only the vessel or cargo. being distributed between the vessel and cargo from which it came.
2. Where both vessel and cargo are saved, it is general average; If on the contrary the merchandise transferred should be saved and
where only the vessel or only the cargo is saved, it is particular the vessel should be lost, no liability may be demanded of the salvage.
average.
3. The person whose property has been saved must contribute to Art. 818: if, as a necessary measure to extinguish a fire in a port,
reimburse the damage caused or expense incurred if the situation roadstead, creek, or bay, it should be decided to sink any vessel, this
constitutes general average. loss shall be considered gross average, to which the vessels saved
should contribute.
B. Gross or General Average
Damage or expenses deliberately caused in order to save the vessel, Note: the loss or damage sustained by cutting away wreck or parts of
its cargo or both from real and known risk. (Art. 811) the ship which have been previously carried away or effectively lost by
All the persons having an interest in the vessel and the cargo therein accident shall not be made good as general average
at the time of the occurrence of the average shall contribute to satisfy
this average. (Art. 812) Sacrifice must be Successful
- no general contribution can be demanded if the vessel and other
REQUISITES: cargo that are sought to be saved were in fact not saved (art. 860)
1. common danger present
2. arising from accidents of sea, disposition of authority - owners of the goods saved shall not be liable for the indemnification
3. peril imminent and ascertained of those jettisoned, lost or damaged
4. part of vessel or cargo deliberately sacrificed - hence when the sacrifice was not successful in saving the ship, there
5. intended to save vessel or cargo will be no general contribution
6. proper legal steps and authority taken
Compliance with Legal Steps
Common danger
- means both the ship and the cargo, after has been loaded, are subject - Procedure for recovery: (Art. 813-814)
to the same danger, whether during the voyage, or in the port of 1. There must be a resolution of the captain, adopted after a
loading or unloading, that the danger arises from the accidents of the deliberation with the other officers of the vessel and after
sea, disposition of authority, or faults of men, provided that hearing all persons interested in the cargoes. If the latter
circumstances producing the peril should be ascertained and imminent disagree, the decision of the captain should prevail but they shall
or may rationally be said to be certain and imminent register their objections.
2. The resolution must be entered in the logbook, stating the
- When the measure of precaution adopted solely and exclusively for reasons and motives for the dissent, and the irresistible and
the preservation of the vessel from the danger of seizure or capture urgent causes if he acted in his own accord. It must be signed, in
and not for the common safety is not considered as common danger the first case, by all persons present in the hearing. In the second
case, by the captain and all the officers of the vessel.
Deliberate Sacrifice 3. The minutes must also contain a detail of all the goods jettisoned
- voluntary sacrifice of a part for the benefit of the whole in order to and those injuries caused to those on board.
justify the average contribution 4. The captain shall deliver it to the maritime judicial authority of
the first port he may make, within 24 hours after his arrival, and
* voluntary jettison- the casting away of some portion of the to ratify it immediately under oath.
associated interests for the purpose of avoiding the common peril
from the whole to a particular portion of those interests - ORDER OF GOODS TO BE CAST OVERBOARD IN CASE OF JETTISON:
1. those which are on the deck, preferring the heaviest one with the
- the goods on board refer to in jettison should be proven by means of least utility and value;
bill of lading and with regards to those belonging to vessel by means of 2. those which are below the upper deck, beginning with the one
inventory prepared before the departure with greatest weight and smallest value. (Art. 815)
2 cases where there can also be general averages even if the sacrifice
was not made during the voyage: Examples of General Average
a. where the sinking of the vessel is necessary to extinguish a Read Art 811 of the Code of Commerce
fire in a port, roadstead, creek or bay
b. where cargo is transferred to lighten the ship on account By Whom Borne
of a storm to facilitate entry into a port - shall be borne by those who benefited from the sacrifice; the
shipowner and the owner of the cargoes that were saved
Art. 816: in order that the goods jettisoned may be included in the
gross average and the owners entitled to indemnity – it is necessary Contribution may be imposed to;
that the cargo’s existence on board be proven by a bill of lading; and a. insurers ( Insurance Code of the Philippines)
with regard to those belonging to the vessel, by means of an inventory - they are obliged to pay for the indemnification of the gross average
prepared before departure. provided that the liability shall be limited to the proportion of
contribution attaching to his policy value where this is less than the
contributing value of the thing insured
b. lenders of bottomry and respondentia (Code of Commerce) DISTINCTION OF PARTICULAR AND GENERAL AVERAGES
-obliged to pay in proportion to their respective interest, the general
average which may take place in the goods which the loan is made Hernandez – averages are losses. If there is a loss incurred, the loss will
be shouldered on where it falls. (ex. If you have goods transported
Who is entitled to indemnity? from origin to destination but in process it was damaged by sea water.
Owner of the goods which were sacrificed is entitled to receive the The shipper or owner will shoulder the loss. What will shipper do to
general contribution recover loss? If insured go after insurance. Insurance then files action
Except; against common carrier due to negligence) --- if general average, there
1. goods carried on desk unless the rule special law or is special circumstance, the loss will not be shouldered on where it falls
customs of the place allow the same but wil be shouldered proportionately by persons who have benefited
2. goods that are not recorded in the books or records the circumstance
of the vessel
3. fuel of the vessel if there is more than sufficient 4 reqs for general averages (see above notes) – MEMORIZE;
fuel for the voyage MAGSAYSAY VS. AGAN
1. common danger TO Both vessel and cargo
American Home Insurance v. CA 2. deliberate sacrifice
Art 848 states that claims shall not be admitted if they do not exceed 3. successful saving
5% of the interest which the claimant may have in the vessels or cargo 4. compliance with the proper steps
if it is general average, and 1% of the goods damaged if particular
average… deducting in both cases the expenses of appraisal, unless If no special circumstance, it is a particular or simple average --- the
there is an agreement to the contrary. owner of the vessel will be the one who will shoulder the loss. The
negligence of captain, the owner of the vessel will shoulder. But if
It is clear that the damage of the cargo is particular average since the there is special circumstance, the loss will be shouldered
loss is less than 1% to the value of the cargo and there appears to be proportionately by those who benefited
no allegations as to any agreement defendants and consignee of the
goods to the contrary, by express provision of law, plaintiff is barred Standard oil case – the ship captain will not release goods to the
from suing for recovery. shipper unless the shipper will contribute their share. The issue was
the duty of the captain to liquidate – he did not file for the appropriate
Law on averages does not apply if the CC is negligent. proceeding, you should result to legal liquidation. Captain here failed
TO INITIATE proper proceeding thus shipowner is liable for actions of
YORK-ANTWERP RULES ON DETERMINING LIABILITY FOR captain
CONTRIBUTION ON AVERAGES
Q: is the duty of captain to initiate a condition precedent?
Under the rule, deck cargo is permitted in coastwise shipping but A: no. even if ship captain does not initiate, the shipowner can still file
prohibited in overseas shipping. the appropriate proceeding in court.
1. If deck cargo is located with the consent of the shipper on
overseas trade, it must always contribute to general average, COMMON DANGER – both to vessel and cargo. If one invokes general
but should the same be jettisoned, it would not be entitled to average then that person must prove what he allege. In standard oil
reimbursement because there is violation of the Y-A Rules. since ship captain invoked gen aver – they should be the one to prove.
2. If deck cargo is loaded with the consent of the shipper on Failure to prove, they cannot ask for contribution from owners of the
coastwise shipping, it must always contribute to general average goods.
and if jettisoned would be entitled to reimbursement.
It is also possible that there are no goods involved. Only extraordinary
- may also be used to solve controversies where no provision expense Phil. Home assurance case --- discussed also in chapter 3 ---
of the code of commerce is in point because the said rules when it exploded, vessel got burned, another vessel came to the
embody the custom of maritime states rescue to extinguish the fire and towed the vessel to the nearest
destination. Goods were saved from the subject vessel. The shipowner
AVERAGES asked for contribution to the owner of the goods which were saved. SC
- the same concept that was existing in medieval times can be applied said, shipowner did not comply legal steps 813-815 thus you cannot
at present allege general averages.
Relevance of averages (take note these ex. Connected to expenses If the averages are not general, it is particular. the shipowner will be
under 806) solely liable… in the case of Magsaysay, there was no deliberate
under 806 --- averages are: sacrifice.
o Extraordinary expenses – ex. If machine does not
work, you have to ask help of a tugboat… the SUCCESSFUL SAVING
expenses on the use of tugboat is a question of - Both vessel and goods must be saved
averages. This is extraordinary because it is not - If vessel not saved, no general averages. Even if goods were
foreseen. --- assuming the engine of the vessel was saved
defective, can that be considered an average? YES. - You have to start with resolution, placing of reso in the log
(question now if it is particular or general) book, accounting of goods thrown away starting those on
o Damages or deterioration suffered – refer to the deck and to follow from those not on deck (read 83-815)
physical feature or attribute of the goods.
- these two are different American Home insurance (take note this case--- bar)
- Transportation of tv sets, the shipcapatain was uprised of the cargo of both vessels.
typhoon. Still captain continued with the journey. Then na 2. Both vessels at fault – each vessel must bear its own loss, but the
abot ang typhoon captain directed that the tv sets should be shippers of both vessels may go against the ship owners who will
jettison. Saved vessel. Reklamo owner. Is there general be solidarily liable.
average? No. if the shipowner is negligent, the law on 3. Vessel at fault not known – same as rule as (2). (Doctrine of
general averages does not apply. Inscrutable Fault)
Note that examples of the two types of averages are not exclusive. 4. Third vessel at fault – same rule as (1).
There is a word “especially” thus there may be other example that may 5. Fortuitous event – no liability. Each bears its own loss.
fall under this two type of averages.
Prerequisite to recovery:
YORK AND TURP RULES Protest should be made within 24 hours before the competent
- THIS CAN be stipulated in a contract that this rule will apply authority at the point of collision or at the first port of arrival, if in the
in respect to averages Philippines and to the Philippine consul, if the collision took place
- In the absence of stipulation in the contract in applying this abroad. (Art. 835)
rule, such rule is inapplicable Injuries to persons and damage to cargo of owners not on board on
collision time need not be protested. (Art. 836)
Q: ordinary expenses are not averages bec. They are foreseeable, are
there instance that they can be considered to be extraordinary ave DOCTRINE OF LAST CLEAR CHANCE OR CONTRIBUTORY NEGLIGENCE
A; if the parties agree that the averages will cover ordinary expenses. NOT APPLICABLE.
The code of commerce does not prohibit the inclusion of other
expenses under averages. DOCTRINE OF “INSCRUTABLE FAULT”
In case of collision where it cannot be determined which between
G. COLLISIONS the two vessels was at fault, both vessels bear their respective
damage, but both should be solidarily liable for damage to the cargo of
Collisions - impact of 2 vessels both of which are moving. both vessels.
Allision - impact between a moving vessel and a stationary one.
NOTE: The Doctrine of Limited Liability applies in case of collisions, but
3 Zones of Time in the Collision of vessels: it shall be limited only to the value of the vessel with all its
1. First zone – all time up to the moment when risk of collision appurtenances and freightage earned during the voyage. When the
begins; latter is not sufficient to cover all the liabilities, the indemnity due by
2. Second zone – time between moment when risk of collision reason of the death or injury of persons shall have preference. (Arts.
begins and moment it becomes a practical certainty; 837 and 838)
3. Third zone – time when collision is certain and time of impact.
H. ARRIVAL UNDER STRESS
Error in Extremis - sudden movement made by a faultless vessel
during the 3rd zone of collision with another vessel which is at fault * ARRIVAL UNDER STRESS – arrival of a vessel at a port of destination
during the 2nd zone. Even if such sudden movement is wrong, no on account of lack of provision, well founded fear of seizure,
responsibility will fall on said faultless vessel. (Urrutia and Co. v. Baco privateers, pirates, or accidents of sea disabling navigation. (Art. 819)
River Plantation Co., 26 PHIL 632). NOTE: Captain must make a protest
Rules on Collision of Vessels under Code of Commerce: Steps to be taken in the determination of the propriety of arrival
1. The collision may be due to the fault, negligence or lack of skill of under stress
the captain, sailing mate, or any other member of the 1. captain should determine during the voyage if there is a well
complement of the vessel. The owner of the vessel at fault be founded fear of seizure, privateers of other valid grounds
liable for losses or damage. (Art. 826) 2. captain shall then assemble the officers
2. The collision may be due to the fault of both vessels. Each vessel 3. captain shall summon the persons interested in the cargo who
shall suffer its own losses, but as regards the owner of cargoes may be present and who may attend but without right to vote
both vessels shall be jointly and severally liable. (Art. 827) 4. the officers shall determine and agree if there is well founded
3. If it cannot be determined which vessel is at fault. Each vessel reason after examining the circumstances; Captain shall have the
shall also suffer its own losses and both shall be solidarily liable deciding vote
for losses o damages on the cargoes. (Art. 828) 5. agreement shall be drafter and the proper minutes shall be
4. The vessels may collide with each other through fortuitous event signed and entered into the log book
or force majeure. In this case each shall bear its own damage. 6. objections and protests shall likewise be entered in the minutes
(Art. 830)
5. Two vessels may collide with each other without their fault by - Absence of one of the steps, can still be considered arrival under
reason of a third vessel. The third vessel will be liable for losses stress.
and damages. (Art. 831)
6. A vessel which is properly anchored and moored may collide with When not lawful:
those nearby reasons of storm or other cause of force majeure. 1. lack of provisions due to negligence to carry according to usage
The vessel run into shall suffer its own damage and expense. (Art. and customs;
832) 2. risk of enemy not well known or manifest
3. defect of vessel due to improper repair; and
Cases covered by collision and allision: 4. malice, negligence, want of foresight or lack of skill of captain.
1. One vessel at fault – such vessel is liable for damage caused to (Art. 820)
innocent vessel as well as damages suffered by the owners of
Who bears expenses: The goods saved from the wreck to be specially bound for the
if arrival under stress is proper shipowner or ship agent payment of the expenses of the respective salvage. (Art. 842)
will only be liable for the expenses of the arrival If several vessels sail under convoy, and any of them should be
if arrival under stress is improper shipowner and ship wrecked, the cargo saved will be distributed among the rest in
agent will be liable for the same expenses and, in addition, proportion to the amount which each one is able to take. … If any
they shall be solidarily liable for damages caused to the captain should refuse, without sufficient cause, to receive what may
cargoes by such arrival under stress correspond to him, the captain of the wrecked vessel to enter a marine
(Art. 821) protest against him. … If it is not possible to transfer to the other
vessels the entire cargo of the vessel wrecked, the goods of the highest
NOTE: value and smallest volume to be saved first. Designation to be made by
- After cessation of the cause of the arrival under stress, captain the captain with concurrence of his officers. (Art. 843)
should continue voyage or else he shall be liable. The captain taking on-board the goods saved from the wreck to
continue his course to the port of destination and upon arrival he
Unloading of cargoes to make repairs: should deposit the goods for disposal to their owners. … In case the
- in order to make repairs to the vessel or because there is captain changes his course, and if he can unload them at the port of
danger that cargo may suffer damage necessary to which they were consigned, he may make said port if the shippers or
unload; captain must request authorization from competent supercargoes present and the officers and passengers of the vessel
judge or court for removal, and carry it out w/ knowledge of consent thereto. But he is not required to do so even if he has the
the person interested in the cargo consent during time of war or when the port is difficult and dangerous
- in a foreign port Philippine Consul to make. … The owners of the cargo to defray all the expenses of this
- in case of the vessel expenses shall be for the account of arrival and the payment of the freightage. (Art. 844)
the ship owner or agent If cannot be, proceed to judicial sale complying with the formalities
- in case of the cargo chargeable against the owners of the and on publicity. (Art. 845)
merchandise for whose benefit the act was performed
- if both expenses to be divided proportionately between I. SALVAGE LAW (Act No. 2616)
the value of the vessel and cargo
(Art. 822) * SALVAGE – services one person renders to the owner of a ship or
goods, by his own labor, preserving the goods or the ship which the
owner or those entrusted with the care of them have either
Custody of cargo: abandoned in distress at sea, or are unable to protect or secure.
intrusted to the captain (except in cases of force majeure)
(Art. 823) Kinds of Salvage:
if entire cargo or part thereof should appear to be damaged, Voluntary – compensation is dependent on the success.
or there should be imminent danger of its being damaged Under contract for a per diem or per horam wage – payable
captain may request judge of competent court / consul, at all events.
the sale of all or part of the cargo Under contract for compensation – payable only in case of
person taking cognizance shall authorize it (after success.
examination and declaration)
captain shall justify the legality of his conduct, answering
to the shipper for the price of the merchandise would have Claim for valid salvage:
brought if they had arrived in good condition - Provides for a reward for voluntary salvage
(Art. 824) - Other persons who assist in saving the vessel or its cargo
from shipwreck shall be entitled to a similar award
Liability of captain:
captain responsible for the damages caused by his delay Persons not entitled to salvage compensation:
if cause of arrival under stress ceases he should not 1. Crew of the vessel shipwrecked or which was in danger of
continue the voyage shipwreck
if cause of arrival should have been the fear of enemies 2. He who shall have commenced the salvage in spite of
deliberation and resolution (in a meeting of officers of the opposition of the captain or of his representatives
vessel and persons interested in the cargo) shall precede the 3. He who shall have failed to comply with the provisions of
departure Section 3 (Section 3. Tthe salvor who saves or picks up a
(Art. 825) vessel or merchandise at sea, in the absence of the ship
captain, ship owner or a representative of either of them,
* Shipwreck – the demolition or shattering of a vessel caused by her they being unknown, shall convey and deliver the vessel or
driving ashore or on rocks and shoals in the midseas, or by the violence merchandise ASAP to the collector of customs if the port has
of winds or waves in tempests a collector and otherwise to the provincial treasurer or
- loss of the vessel at sea as a consequence of its grounding, or running municipal mayor.)
against an object in sea or on the coast
Requisites of compensation or salvage reward:
Loss or deteriorations of vessel or cargo caused by shipwreck or 1. Object must have been exposed to marine peril (fire, acts of
stranding individually account of the owners; part which may be pirate, thieves)
saved belonging to them, same proportion. (Art. 840) 2. Salvage services rendered voluntarily and is not required as
If the wreck was due to malice, negligence or lack of skill of the an existing duty or a form of contract (See Sec. 8)
captain, the owner of the vessel may demand indemnity from said * Pilots are not entitled to a reward – (Atty.
captain. (Art. 841) Capanas)
3. Salvage services are successful in whole or in part
4. Valid vessel which is shipwrecked beyond the control of the SALVAGE LAW
crew or shall have been abandoned (not necessary)
* Courts will not interfere in the agreement of the parties except but SECTION 1. WHEN IN CASE OF SHIPWRECK, THE VESSEL OR ITS CARGO
where there is no agreement or it is excessive the reward is fixed by SHALL BE BEYOND THE CONTROL OF THE CREW, OR SHALL HAVE BEEN
the RTC judge. ABANDONED BY THEM, AND PICKED UP AND CONVEYED TO A SAFE
PLACE BY OTHER PERSONS, THE LATTER SHALL BE ENTITLED TO A
* Derelict – a ship or cargo which is abandoned and deserted at sea by REWARD FOR THE SALVAGE.
those who were in charge of it, without any hope of recovering it or
without any intention of returning to it THOSE WHO, NOT BEING INCLUDED IN THE ABOVE PARAGRAPH,
- determined by ascertaining what was the intention and expectation ASSIST IN SAVING A VESSEL OR ITS CARGO FROM SHIPWRECK, SHALL
of those in charge of it when they quitted it BE ENTITLED TO A LIKE REWARD.
- boat or vessel found entirely deserted or abandoned on the sea
without hope or intention of recovery or return by the master or the SEC. 2. IF THE CAPTAIN OF THE VESSEL, OR THE PERSON ACTING IN HIS
crew, whether resulting from wreck, accident, necessity, or voluntary STEAD, IS PRESENT, NO ONE SHALL TAKE FROM THE SEA, OR FROM
abandonment THE SHORES OR COAST MERCHANDISE OR EFFECTS PROCEEDING
FROM A SHIPWRECK OR PROCEED TO THE SALVAGE OF THE VESSEL,
JETSAM, FLOTSAM, LIGAN: WITHOUT THE CONSENT OF SUCH CAPTAIN OR PERSON ACTING IN HIS
Jetsam – goods that were thrown off a ship which was in STEAD.
danger
Flotsam – goods that floated off the ship while ship was in SEC. 3. HE WHO SHALL SAVE OR PICK UP A VESSEL OR MERCHANDISE
danger or when it sank AT SEA, IN THE ABSENCE OF THE CAPTAIN OF THE VESSEL, OWNER, OR
Ligan – goods left as sea on the wreck or tied to a buoy so A REPRESENTATIVE OF EITHER OF THEM, THEY BEING UNKNOWN,
that they can be recovered later SHALL CONVEY AND DELIVER SUCH VESSEL OR MERCHANDISE, AS
SOON AS POSSIBLE, TO THE COLLECTOR OF CUSTOMS, IF THE PORT
Basis of entitlement to salvage reward (Circumstances to consider): HAS A COLLECTOR, AND OTHERWISE TO THE PROVINCIAL TREASURER
1. The labor expended by the salvors in rendering the salvage OR MUNICIPAL MAYOR.
service
2. The promptitude, skill and energy displayed in rendering the SEC. 4. AFTER THE SALVAGE IS ACCOMPLISHED, THE OWNER OR HIS
service and saving the property REPRESENTATIVE SHALL HAVE A RIGHT TO THE DELIVERY OF THE
3. The value of the property employed by the salvors in VESSEL OR THINGS SAVED, PROVIDED THAT HE PAYS, OR GIVES A
rendering the service, and danger to which such property BOND TO SECURE, THE EXPENSES AND THE PROPER REWARD.
was exposed
4. The risk incurred by the salvors in rescuing the property from THE AMOUNT AND SUFFICIENCY OF THE BOND, IN THE ABSENCE OF
the impending peril AGREEMENT, SHALL BE DETERMINED BY THE COLLECTOR OF CUSTOMS
5. The value of the property salved OR BY THE JUDGE OF THE COURT OF FIRST INSTANCE OF THE
6. The degree of danger which the property was rescued PROVINCE IN WHICH THE THINGS SAVED MAY BE FOUND.
Rights and obligations of salvors and owners: SEC. 5. THE COLLECTOR OF CUSTOMS, PROVINCIAL TREASURER, OR
Salvor is entitled to compensation for services rendered. He MUNICIPAL MAYOR, TO WHOM A SALVAGE IS REPORTED, SHALL
has, under the Salvage Law, a lien upon the property ORDER:
salvaged. A. THAT THE THINGS SAVED BE SAFEGUARD AND INVENTORIED.
On the other hand, the owner does not denounce his right to B. THE SALE AT PUBLIC OPTION OF THE THINGS SAVED WHICH MAY
the property. There is no presumption of an intention to BE IN DANGER OF IMMEDIATE LOSS OR OF THOSE WHOSE
abandon such property rights. CONSERVATION IS EVIDENTLY PREJUDICIAL TO THE INTERESTS OF
THE OWNER, WHEN NO OBJECTION IS MADE TO SUCH SALE.
Maritime Lien C. THE ADVERTISEMENT WITHIN THE THIRTY DAYS SUBSEQUENT TO
A salvor, in maritime law, has an interest in the property; called a THE SALVAGE, IN ONE OF THE LOCAL NEWSPAPERS OR IN THE
lien, but it never goes, in the absence of a contract expressly made, NEAREST NEWS-PAPER PUBLISHED, OF ALL THE DETAILS OF THE
upon the idea of debt due from the owner to the salvor but upon the DISASTER, WITH A STATEMENT OF THE MARK AND NUMBER OF
principle that the service creates a property in the thing saved. THE EFFECTS REQUESTING ALL INTERESTED PERSONS TO MAKE
THEIR CLAIMS.
Rule on salvage reward: SEC. 6. IF, WHILE THE VESSEL OR THINGS SAVED ARE AT THE
1. The reward is fixed by the RTC judge in the absence of agreement DISPOSITION OF THE AUTHORITIES, THE OWNER OR HIS
or where the latter is excessive (Sec. 9). REPRESENTATIVE SHALL CLAIM THEM, SUCH AUTHORITIES SHALL
2. If sold (no claim being made within 3 months from publication), ORDER THEIR DELIVERY TO SUCH OWNER OR HIS REPRESENTATIVE,
the proceeds, after deducting expenses and the salvage claim, PROVIDED THAT THERE IS NO CONTROVERSY OVER THEIR VALUE, AND
shall go to the owner; if the latter does not claim it within 3 years, A BOND IS GIVEN BY THE OWNER OR HIS REPRESENTATIVE TO SECURE
50% of the said proceeds shall go to the salvors, who shall divide THE PAYMENT OF THE EXPENSES AND THE PROPER REWARD.
it equitably, and the other half to the government (Secs. 11-12). OTHERWISE, THE DELIVERY SHALL NOR BE MADE UNTIL THE MATTER IS
3. If a vessel is the salvor, the reward shall be distributed as follows: DECIDED BY THE COURT OF FIRST INSTANCE OF THE PROVINCE.
a. 50% to the shipowner;
b. 25% to the captain; and SEC. 7. NO CLAIM BEING PRESENTED IN THE THREE MONTHS
c. 25% to the officers and crew in proportion to their salaries SUBSEQUENT TO THE PUBLICATION OF THE ADVERTISEMENT
PRESCRIBED IN SUB-SECTION (C) OF SECTION FIVE, THE THINGS SAVE THE ABSENCE OF AN AGREEMENT TO THE CONTRARY. THE EXPRESS OF
SHALL BE SOLD AT PUBLIC AUCTION, AND THEIR PROCEEDS, AFTER SALVAGE, AS WELL AS THE REWARD FOR SALVAGE OR ASSISTANCE,
DEDUCTING THE EXPENSES AND THE PROPER REWARD SHALL BE SHALL BE A CHARGE ON THE THINGS SALVAGED ON THEIR VALUE.
DEPOSITED IN THE INSULAR TREASURY. IF THREE YEARS SHALL PASS
WITHOUT ANYONE CLAIMING IT, ONE-HALF OF THE DEPOSIT SHALL BE COGSA (CARRIAGE OF GOODS BY SEA ACT)
ADJUDGED TO HIM WHO SAVED THE THINGS, AND THE OTHER HALF - Adopted by the Philippines on October 22, 1936 through
TO THE INSULAR GOVERNMENT. Commonwealth Act No. 65
- New Civil Code primary law on goods that are being
SEC. 8. THE FOLLOWING SHALL HAVE NO RIGHT TO A REWARD FOR transported from a foreign port to the Philippines
SALVAGE OR ASSISTANCE: - COGSA remains to be a suppletory law for such type of
transportation – international shipping
A. THE CREW OF THE VESSEL SHIPWRECKED OR WHICH WAS IS
DANGER OF SHIPWRECK; ART. 1753, NCC: THE LAW OF THE COUNTRY TO WHICH THE GOODS
ARE TO BE TRANSPORTED SHALL GOVERN THE LIABILITY OF THE
B. HE WHO SHALL HAVE COMMENCED THE SALVAGE IN SPITE OF COMMON CARRIER FOR THEIR LOSS, DESTRUCTION OR
OPPOSITION OF THE CAPTAIN OR HIS REPRESENTATIVE; AND DETERIORATION.
C. HE WHO SHALL HAVE FAILED TO COMPLY WITH THE PROVISIONS OF * Goods – includes goods, wares, merchandise, and articles of every
SECTION THREE. kinds whatsoever
- does not include live animals and cargo which by the
SEC. 9. IF, DURING THE DANGER, AN AGREEMENT IS ENTERED INTO contract of carriage is stated as being carried on deck and is so carried
CONCERNING THE AMOUNT OF THE REWARD FOR SALVAGE OR
ASSISTANCE, ITS VALIDITY MAY BE IMPUGNED BECAUSE IT IS Parties:
EXCESSIVE, AND IT MAY BE REQUIRED TO BE REDUCED TO AN Carrier, and
AMOUNT PROPORTIONATE TO THE CIRCUMSTANCES. Shipper
- They are given their respective rights and obligations under COGSA.
SEC. 10. IN A CASE COMING UNDER THE LAST PRECEDING SECTION, AS - Carrier (covered by COGSA) not limited to the shipowner; includes
WELL AS IN THE ABSENCE OF AN AGREEMENT, THE REWARD FOR charterer who enters into a contract of carriage with the shipper
SALVAGE OR ASSISTANCE SHALL BE FIXED BY THE COURT OF FIRST - Charterer charters a vessel and conducts his own business for his
INSTANCE OF THE PROVINCE WHERE THE THINGS SALVAGED ARE own account
FOUND, TAKING INTO ACCOUNT PRINCIPALLY THE EXPENDITURES after chartering the vessel, he uses the vessel to conduct a
MADE TO RECOVER OR SAVE THE VESSEL OR THE CARGO OR BOTH, business of transportation obtaining goods from 3rd persons to
THE ZEAL DEMONSTRATED, THE TIME EMPLOYED, THE SERVICES transport the latter’s goods
RENDERED, THE EXCESSIVE EXPRESS OCCASIONED THE NUMBER OF
PERSONS WHO AIDED, THE DANGER TO WHICH THEY AND THEIR Duties of the carrier:
VESSELS WERE EXPOSED AS WELL AS THAT WHICH MENACED THE Civil Code requires international carriers to exercise
THINGS RECOVERED OR SALVAGED, AND THE VALUE OF SUCH THINGS extraordinary diligence in the performance of their
AFTER DEDUCTING THE EXPENSES. contractual obligations
Section 2 of COGSA carrier’s obligation and liabilities in
SEC. 11. FROM THE PROCEEDS OF THE SALE OF THE THINGS SAVED relation to the loading, handling, stowage, carriage, custody,
SHALL BE DEDUCTED, FIRST, THE EXPENSES OF THEIR CUSTODY, care and discharge of such goods
CONSERVATION, ADVERTISEMENT, AND AUCTION, AS WELL AS Section 3 of COGSA responsibilities of the carrier under
WHATEVER TAXES OR DUTIES THEY SHOULD PAY FOR THEIR COGSA
ENTRANCE; THEN THERE SHALL BE DEDUCTED THE EXPENSES OF
SALVAGE; AND FROM THE NET AMOUNT REMAINING SHALL BE TAKEN Document of title required
THE REWARD FOR THE SALVAGE OR ASSISTANCE WHICH SHALL NOT - evidenced by the Bill of Lading
EXCEED FIFTY PER CENT OF SUCH AMOUNT REMAINING. - BOL serves as prima facie evidence of the receipt by the carrier of the
goods
SEC. 12. IF IN THE SALVAGE OR IN THE RENDERING OF ASSISTANCE
DIFFERENT PERSONS SHALL HAVE INTERVENED THE REWARD SHALL BE Notice of claim and prescriptive period
DIVIDED BETWEEN THEM IN PROPORTION TO THE SERVICES WHICH * Notice of claim must be made within 3 days from delivery if the
EACH ONE MAY HAVE RENDERED, AND, IN CASE OF DOUBT, IN EQUAL damage is not apparent; not mandatory
PARTS. * Prescriptive period 1 year from delivery for the filing of the case is
a condition precedent or mandatory; does not apply to cases of
THOSE WHO, IN ORDER TO SAVE PERSONS, SHALL HAVE BEEN misdelivery or conversion
EXPOSED TO THE SAME DANGERS SHALL ALSO HAVE A RIGHT TO
PARTICIPATION IN THE REWARD. Defenses and immunities
- provided for by Section 4 of COGSA
SEC. 13. IF A VESSEL OR ITS CARGO SHALL HAVE BEEN ASSISTED OR - Section 49(1) of COGSA – carrier shall not be liable for loss or
SAVED, ENTIRELY OR PARTIALLY, BY ANOTHER VESSEL, THE REWARD damages arising from unseaworthiness
FOR SALVAGE OR FOR ASSISTANCE SHALL BE DIVIDED BETWEEN THE - New Civil Code – carrier will not be liable only if it can present proof
OWNER, THE CAPTAIN, AND THE REMAINDER OF THE CREW OF THE that the unseaworthiness was caused exclusively by any of the
LATTER VESSEL, SO AS TO GIVE THE OWNER A HALF, THE CAPTAIN A circumstances specified in Art. 1734 of the NCC
FOURTH, AND ALL THE REMAINDER OF THE CREW THE OTHER FOURTH
OF THE REWARD, IN PROPORTION TO THEIR RESPECTIVE SALARIES, IN Waiver
- The shipowner and the ship agent may waive the benefit of any of the
defenses in its favor provided not only under COGSA but also under
other laws
Limiting provision
- COGSA contains a provision that allows the shipper to recover only
US$500 per package unless there is a special declaration unless there
the real value of the goods is declared
- declaration made by the shipper stating an amount bigger than $500
per package will make the carrier liable for such bigger amount but
only if the amount so declared is the real value of the goods