Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

BAMBOO SHIPYARD, INC Petitioner,

- versus -

G.R. No. 1878989

VOICE INSURANCE AND SURETY CORPORATION Respondents. x - - - - - - - - - - - - - - - - - - - - - - - - -x

MOTION TO REFER THE CASE TO THE COURT EN BANC

PETITIONER BAMBOO SHIPYARD, INC, through the undersigned counsel, respectfully moves that this Court REFER the above-captioned case to the Court En Banc upon the following presentation:

1. Within the 15-day reglementary period, Appellant filed a Motion for Reconsideration of this Courts Decision dated 27 July 2013, a copy of which was received on 16 August 2013.

2. The instant Petition for Certiorari, Prohibition and Mandamus presents a novel question of law and should thus be referred to the Court En Banc in accordance with Supreme Court Circular No. 2-89 dated 7 February 1989, as amended.

Motion to Refer the Case to the Court En Banc BAMBOO SHIPYARD INC v. VOICE INSURANCE G.R. No. 1878989 Second Division, Supreme Court x--------------------------------x

2.01. As found by this Honorable Court, [t]he question posed in this petition, i.e., whether Petitioner was denied due process when the Court reviewed and reversed the Court of Appeals' finding of fact, despite its not having asked for case records containing the evidence presented at the Construction Industry Arbitration Commission (CIAC).

2.02. Petitioner submits that the Honorable Court it was denied its substantive right to due process in proving that it is not guilty of negligence and that the limitation of liability clause under the Ship Repair Agreement with AP&L is valid. 1

2.03. Moreover, Petitioner respectfully ask the Honorable Court on how it could have weighed those many contradictory accounts of witnesses and how it could have decided which witnesses and which portions of their testimonies to believe, since neither party attached and supplied the transcripts, and the Court had none of the transcripts of record. Thus, it must allow Petitioner to submit the necessary evidence to prove that it is now guilty of negligence.

3. The instant case have serious allegations in the petition that if the decision of the Court is not vacated, there is a farreaching effect on similar cases already decided by the Court. 3.01. Petitioner is ordered to pay the amount of P360,000,000 or equivalent to the salvage value recovered by the Voice Insurance from M/V Gonzaga 2 without being allowed by the Division to submit the necessary records to prove that it is not guilt of negligence.

4. With all due respect, petitioner submits that the above-cited state of affairs justifies the referral of the instant case to the Court En Banc and granting this relief is not without any precedent.

KEPPEL CEBU SHIPYARD, INC., vs. PIONEER INSURANCE AND SURETY CORPORATION, 681 SCRA 44
1

Motion to Refer the Case to the Court En Banc BAMBOO SHIPYARD INC v. VOICE INSURANCE G.R. No. 1878989 Second Division, Supreme Court x--------------------------------x

4.01. In Keppel Cebu Shipyard Inc, vs. Pioneer Insurance and Surety Corporation 2 , the Court En Banc accepted the case for its consideration by a vote of 4 to 1 in the Second Division that rendered the Decision.

4.02. As in the instant case, Keppel v. Pioneer Insurance involved an appellant who was convicted of Qualified Rape and was sentenced to suffer Death Penalty. Thus: xxx There are serious allegations in the petition that if the decision of the Court is not vacated, there is a farreaching effect on similar cases already decided by the Court. Thus, by a vote of 4 to 1 in the Second Division that rendered the decision, the case was elevated to the En Banc for acceptance, in accordance with the Internal Rules of the Supreme Court, particularly Section 3 (n), Rule 2[5] thereof which states that the Court en banc can act on matters and cases that it deems of sufficient importance to merit its attention. In regard to this matter, ten (10) members, or two-thirds of the Court en banc, voted to grant KCSI's Motion to Refer to the Court En Banc its Motion to Re-Open Proceedings, while three (3) members dissented and two (2) members did not take part. In view of the foregoing, KCSI's Motion to Refer to the Court En Banc is GRANTED. The Court en banc shall determine whether or not the allegations of KCSI are meritorious." xxx

5. If the Court in Keppel Cebu Shipyard Inc, vs. Pioneer Insurance and Surety Corporation characterized the case as one of sufficient importance to merit the attention of the Court En Banc, there appears to be no reason why the Court En Banc should not be given the same opportunity to rule on petitioners Motion for Reconsideration of the 27 July 2013 Decision.

Ibid

Motion to Refer the Case to the Court En Banc BAMBOO SHIPYARD INC v. VOICE INSURANCE G.R. No. 1878989 Second Division, Supreme Court x--------------------------------x

5.01. By parity of reasoning, the validity of this Courts ruling in Firestone Ceramics vs. Court of Appeals 3 at the very least, an issue of sufficient importance to merit the attention of the Court En Banc.

5.02. The ruling of this Court is a precedent that Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, or presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; Criminal cases in which the appealed decision imposes the death penalty; Cases raising novel questions of law; Cases affecting ambassadors, other public ministers and consuls; Cases involving decisions, resolutions or orders of the Civil Service Commission, Commission on Elections, and Commission on Audit; Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine exceeding P10,000.00 or both; Cases where a doctrine or principle laid down by the court en banc or in division may be modified or reversed; Cases assigned to a division which in the opinion of at least three (3) members thereof merit the attention of the court en banc and are acceptable to a majority of the actual membership of the court en banc; and All other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention.

G.R. No. 127022. June 28, 2000

Motion to Refer the Case to the Court En Banc BAMBOO SHIPYARD INC v. VOICE INSURANCE G.R. No. 1878989 Second Division, Supreme Court x--------------------------------x

6. There is another compelling legal reason to justify the referral of the instant case to the Court En Banc.

6.01.

In the En Banc ruling in Cabuay, Jr. vs. Malvar, et al.,4 the Court reiterated the constitutional proscription that no doctrine or principle laid down by the Supreme Court, whether En Banc or by a division, could be reversed except by the Court sitting En Banc:

Section 4, sub-paragraph (3), Article VIII of the 1987 Constitution, provides: . . . no doctrine or principle of law laid down by the (Supreme) Court En Banc or its Divisions may be modified or reversed except by the Court sitting En Banc. A Decision rendered by a Division of this Court in violation of the above constitutional provision would be in excess of jurisdiction and, therefore, invalid. WHEREFORE, petitioner Bamboo Shipyard Inc, respectfully prays that this Court (Second Division) REFER the above-captioned Petition for Certiorari, Prohibition and Mandamus, particularly the resolution of petitioners Motion for Reconsideration of the 27 July 2013 Decision, to the Court En Banc.

28 August, 2013 Makati City. SHARMAGNE JOY A. BINAY Counsel for Petitioner Binay & Binay !2918 Mosaic, Salcedo, Makati City PTR No. 8917980A; 1/07/2014! IBP No. 687239; 2/20/2012;
5

Motion to Refer the Case to the Court En Banc BAMBOO SHIPYARD INC v. VOICE INSURANCE G.R. No. 1878989 Second Division, Supreme Court x--------------------------------x

COPY FURNISHED, NOTICE OF HEARING AND EXPLANATION

ATTY. GENER E. ASUNCION BELO GOZON ELMA PAREL ASUNCION & LUCILA Counsel for Petron 15th Floor, Sagittarius Condominium H.V. Dela Costa St., Salcedo Village Makati City COURT OF APPEALS Manila (CA-G.R. SP No. 72234) (CA-G.R. SP No. 72270) Balanga City, Bataan

Motion to Refer the Case to the Court En Banc BAMBOO SHIPYARD INC v. VOICE INSURANCE G.R. No. 1878989 Second Division, Supreme Court x--------------------------------x

THE DIVISION CLERK OF COURT THIRD DIVISION Supreme Court Padre Faura, Manila GREETINGS: Kindly submit the foregoing Motion to Refer the Case to the Court En Banc for the consideration of the Honorable Court immediately at its convenience. The foregoing Motion to Refer the Case to the Court En Banc is being filed and served by registered mail due to the distance of the office addresses of other parties and counsels and for lack of personnel to effect personal service.

SHARMAGNE JOY A. BINAY