Professional Documents
Culture Documents
The Manila Port Authority sued MPA, FESC and GAVINO for the
damage to the pier. The
trial court held all the defendants solidarily liable for the
damages. Thus, FESC appealed,
arguing that GAVINO, the pilot under compulsory pilotage, was
the one at fault
Issue: Is GAVINO liable for his negligence? Is KAVANKOV liable
for his negligence?
Gavino negligent
Pursuant to an ADMIN ORDER requiring compulsory pilotage,
Capt. GAVINO was
assigned to pilot MV Pavlodar into the port. Upon assuming such
office as compulsory pilot,
Capt. Gavino is held to the universally accepted high standards of
care and diligence
required of a pilot, whereby he assumes to have skill and
knowledge in respect to
navigation in the particular waters over which his license
extends superior to and
more to be trusted than that of the master
In this case, the Court found that GAVINO was negligent
because he was late in ordering
the dropping of the anchor. Moroever, when he realized that the
anchor did not attach
properly, Gavino ordered merely "half-astern". It took Gavino
another minute to order a
"full-astern". By then, it was too late. The vessel's momentum
could no longer be slowed
and, barely a minute thereafter, the bow of the vessel hit the
apron of the pier
Kavankov also negligent
The master is not wholly absolved from his duties while a pilot
is on board his vessel, and
may advise with or offer suggestions to him. He is still in
command of the vessel, except so
far as her navigation is concerned, and must cause the ordinary
work of the vessel to be
properly carried on and the usual precaution taken.
In this case, while the pilot Gavino may indeed have been
charged with the task of docking
the vessel in the berthing space the master of the vessel had
the corresponding duty to
countermand any of the orders made by the pilot, and even
maneuver the vessel
himself, in case of imminent danger to the vessel and the
port. This, KAVANKOV
failed to do.
Liability of Shipowners
Even though the pilot is compulsory, if his negligence was not
the sole cause of the injury,
but the negligence of the master or crew contributed thereto, the
owners are liable. But the
liability of the ship in rem does not release the pilot from the
consequences of his own
negligence. The rationale for this rule is that the master is not
entirely absolved of
responsibility with respect to navigation when a compulsory
pilot is in charge.
during unfavorable weather will not make VSI liable for any
damage caused thereby. In
passing, it may be noted that the NSC may seek
indemnification, subject to the laws on
prescription, from the stevedoring company at fault in the
discharge operations.
o A stevedore company engaged in discharging cargo has the
duty to load the
cargo in a prudent manner, and it is liable for injury to, or loss of,
cargo caused
by its negligence and where the officers and members and crew
of the vessel do
nothing and have no responsibility in the discharge of cargo by
stevedores the
vessel is not liable for loss of, or damage to, the cargo caused by
the negligence
of the stevedores
Optional (demurrage)
The Court defined demurrage in its strict sense as the
compensation provided for in the
contract of affreightment for the detention of the vessel beyond
the laytime or that period of
time agreed on for loading and unloading of cargo. It is given to
compensate the shipowner
for the nonuse of the vessel
Laytime runs according to the particular clause of the charter
party. . . . If laytime is
expressed in "running days," this means days when the ship
would be run continuously,
and holidays are not excepted. A qualification of "weather
permitting" excepts only those
days when bad weather reasonably prevents the work
contemplated.
In this case, the contract of voyage charter hire provided for a
four-day laytime; it also
qualified laytime as WWDSHINC or weather working days
Sundays and holidays included.
The running of laytime was thus made subject to the
weather, and would cease to
run in the event unfavorable weather interfered with the
unloading of cargo.
Consequently, NSC may not be held liable for demurrage as the
four-day laytime allowed it
did not lapse, having been tolled by unfavorable weather
condition
Vlasons won, NSC lost
Do Tin Plates Sweat? Yes, due to moisture outside the boat.
However, in this case the
damage to the tinplates was occasioned not by airborne moisture
but by contact with rain
and seawater.
DOCTRINE: A stevedore company engaged in discharging cargo
has the duty to load the cargo in a prudent manner, and it is liable
for injury to, or loss of, cargo caused by its negligence and where
the officers and members and crew of the vessel do nothing and
have no responsibility in the discharge of cargo by stevedores,
the vessel is not liable for loss of, or damage to, the cargo caused
by the negligence of the stevedores
FACTS:
Plaintiff National Steel Corporation (NSC) as Charterer and
defendant Vlasons Shipping, Inc. (VSI) as Owner, entered into a
Contract of Voyage Charter Hire (Affreightment) whereby NSC
hired VSIs vessel, the MV VLASONS I to make one (1) voyage to
load steel products at Iligan City and discharge them at North
Harbor, Manila. VSI carried passengers or goods only for those it
chose under a special contract of charter party.
The vessel arrived with the cargo in Manila, but when the vessels
three (3) hatches containing the shipment were opened, nearly
all the skids of tin plates and hot rolled sheets were allegedly
found to be wet and rusty.
Plaintiff NSC filed its complaint against defendant before the CFI
wherein it claimed that it sustained losses as a result of the act,
neglect and default of the master and crew in the management of
the vessel as well as the want of due diligence on the part of the
defendant to make the vessel seaworthy -- all in violation of
defendants undertaking under their Contract of Voyage Charter
Hire.
In its answer, defendant denied liability for the alleged damage
claiming that the MV VLASONS I was seaworthy in all respects
for the carriage of plaintiffs cargo; that said vessel was not a
common carrier inasmuch as she was under voyage charter
contract with the plaintiff as charterer under the charter party.
The trial court ruled in favor of VSI; it was affirmed by the CA on
appeal.
ISSUE: Whether or not the officers/crew of VLASONS are
negligent thus making the ship owners liable to the plaintiff.
HELD: NO The Ship owners are not liable
The court found that the ship used old tarpaulin to cover the
hatches, but only in addition to the new ones used primarily to
make the hatches of the ship watertight. Due diligence was
exercised by the officers and the crew of the MV Vlasons I. It was
demonstrated by the fact that, despite encountering rough
weather twice, the new tarpaulin did not give way and the ship's
hatches and cargo holds remained waterproof.
NSC failed to discharge its burden to show negligence on the part
of the officers and the crew of MV Vlasons I. On the contrary, the
records reveal that it was the stevedores of NSC who were
negligent in unloading the cargo from the ship. The stevedores
employed only a tent-like material to cover the hatches when
strong rains occasioned by a passing typhoon disrupted the
unloading of the cargo. This tent-like covering, however, was
clearly inadequate for keeping rain and seawater away from the
hatches of the ship.
The fact that NSC actually accepted and proceeded to remove the
cargo from the ship during unfavorable weather will not make
VSI liable for any damage caused thereby. In passing, it may be
noted that the NSC may seek indemnification, subject to the laws
on prescription, from the stevedoring company at fault in the
discharge operations.
A stevedore company engaged in discharging cargo has the duty
to load the cargo in a prudent manner, and it is liable for injury
to, or loss of, cargo caused by its negligence and where the
officers and members and crew of the vessel do nothing and
have no responsibility in the discharge of cargo by
stevedores the vessel is not liable for loss of, or damage to,
the cargo caused by the negligence of the stevedores
The Court defined demurrage in its strict sense as the
compensation provided for in the contract of affreightment for
the detention of the vessel beyond the laytime or that period of
time agreed on for loading and unloading of cargo. It is given to
compensate the shipowner for the nonuse of the vessel
Laytime runs according to the particular clause of the charter
party. . . . If laytime is expressed in "running days," this means
days when the ship would be run continuously, and holidays are
not excepted. A qualification of "weather permitting" excepts
only those days when bad weather reasonably prevents the work
contemplated.
In this case, the contract of voyage charter hire provided for a
four-day laytime; it also qualified laytime as WWDSHINC or
weather working days Sundays and holidays included.
The running of laytime was thus made subject to the weather,
and would cease to run in the event unfavorable weather
interfered with the unloading of cargo.
4.
SWITZERLAND GENERAL INSURANCE VS RAMIREZ
EUNICE
Switzerland General Insurance v. Ramirez2
Doctrine:
The ship agent is solidarily liable with the shipowner for the
damage caused to the goods
due to the negligence of the captain and crew.
Facts:
On 1974, 60k bags of urea nitrogen were shipped from Japan to
Manila by CITADEL
LINES (local agent of OYAMA LINES). The goods were
discharged by MABUHAY
BROKERAGE. However, when the consignee, BORDEN
INTERNATIONAL, received the
goods, they were found to have been damaged (the bags were
torn)
SWITZERLAND GEN INSURANCE (SGI) paid BORDEN the value
of the goods and in turn
sued OYAMA, CITADEL and MABUHAY BROKERAGE.
CITADEL argued that it was not liable since it was merely an
AGENT of
OYAMA and not a ship agent. OYAMA alleged that the claim could
not be
entertained because it was already been declared insolvent by a
court in Japan.
The TC found OYAMA to be liable, and exonerated CITADEL
and MABUHAY
BROKERAGE. Hence, the insurer appealed.
Issue: Should CITADEL, the local agent, also be held liable? YES. It
is a ship agent.
Considering the relationship of the parties, respondent Citadel
Lines, Inc. cannot be
considered as a "mere agent" under the civil law on agency as
distinguished from a ship
agent, within the context of the Code of Commerce.
o This is because in Yu Biao Sontua & Co. v. Ossorio, it was held
that the
doctrines having reference to the relations between
principal and agent
cannot be applied in the case of ship agents and ship owners.
In this case, CITADEL is clearly the ship agent of OYAMA. As
provided in the law, a ship
agent is the person entrusted with the provisioning of a vessel or
who represents her in the
port in which she happens to be. CITADEL took charge of the
unloading of the goods and
issued cargo receipts in its own name. Therefore, it is clear that
CITADEL is the ship
agent.
Being a ship agent, it is liable for the indemnities in favor of 3rd
persons which arise from
the conduct of the captain in the care of the goods (Art 587 and
618) It is therefore
solidarily liable with OYAMA for the value of the goods paid for
by the insurer.
Moreover, the insolvency of Oyama Lines has no bearing on the
case insofar as the liability
of Citadel is concerned. The law does does not make the liability
of the ship agent
dependent upon the solvency or insolvency of the ship owner.
Note: As to the liability of charterer
In this case, the charterer represented itself on the face of the bill
of lading as the carrier.
The vessel owner and the charterer did not stipulate in the
Charter party on their separate
respective liabilities for the cargo. The loss/damage to the cargo
was sustained while it was
the vessel sailed from Hong Kong for Singapore. In the Master's
sailing message, Captain Tayong reported a water leak from M.E.
Turbo Charger No. 2 Exhaust gas casing. He was subsequently
instructed to blank off the cooling water and maintain reduced
RPM unless authorized by the owners.
while the vessel was en route to Singapore, Captain Tayong
reported that the vessel had stopped in mid-ocean for six (6)
hours and forty-five (45) minutes due to a leaking economizer.
He was instructed to shut down the economizer and use the
auxiliary boiler instead.
On 31 July 1989 at 0607 hrs., the vessel arrived at the port of
Singapore. 5 The Chief Engineer reminded Captain Tayong that
the oxygen and acetylene supplies had not been delivered. 6
Captain Tayong inquired from the ship's agent in Singapore about
the supplies. The ship agent stated that these could only be
delivered at 0800 hours on August 1, 1989 as the stores had
closed.
Captain Tayong called the shipowner, Sea Horse Ship
Management, Ltd., in London and informed them that the
departure of the vessel for South Africa may be affected because
of the delay in the delivery of the supplies.
Sea Horse advised Captain Tayong to contact its Technical
Director, Mr. Clark, who was in Tokyo and who could provide a
solution for the supply of said oxygen and acetylene.
On the night of 31 July 1989, Mr. Clark received a call from
Captain Tayong informing him that the vessel cannot sail without
the oxygen and acetylene for safety reasons due to the problems
with the turbo charger and economizer. Mr. Clark responded that
by shutting off the water to the turbo chargers and using the
auxiliary boiler, there should be no further problems. According
to Mr. Clark, Captain Tayong agreed with him that the vessel
could sail as scheduled on 0100 hours on 1 August 1989 for
South Africa.
According to Captain Tayong, however, he communicated to Sea
Horse his reservations regarding proceeding to South Africa
without the requested supplies, 11 and was advised by Sea Horse
to wait for the supplies at 0800 hrs. of 1 August 1989, which Sea
Horse had arranged to be delivered on board the Oceanic
Mindoro. 12 At 0800 hours on 1 August 1989, the requisitioned
supplies were delivered and Captain Tayong immediately sailed
for Richard Bay.
When the vessel arrived at the port of Richard Bay, South Africa
on 16 August 1989, Captain Tayong was instructed to turn-over
his post to the new captain. He was thereafter repatriated to the
Philippines, after serving petitioners for a little more than two
weeks. 13 He was not informed of the charges against him.
Tayong instituted a complaint for illegal dismissal before the
Philippine Overseas Employment Administration ("POEA"),
claiming his unpaid salary for the unexpired portion of the
written employment contract, plus attorney's fees.
Petitioners, in their answer to the complaint, denied that they had
illegally dismissed Captain Tayong. Petitioners alleged that he
had refused to sail immediately to South Africa to the prejudice
and damage of petitioners. According to petitioners, as a direct
result of Captain Tayong's delay, petitioners' vessel was placed
"off-hire" by the charterers for twelve (12) hours. This meant
that the charterers refused to pay the charter hire or
compensation corresponding to twelve (12) hours, amounting to
US$15,500.00, due to time lost in the voyage. They stated that
they had dismissed private respondent for loss of trust and
confidence.
POEA dismissed Captain Tayong's complaint and held that there
was valid cause for his untimely repatriation. The decision of the
POEA placed considerable weight on petitioners' assertion that
all the time lost as a result of the delay was caused by Captain
Tayong and that his concern for the oxygen and acetylene was
not legitimate as these supplies were not necessary or
indispensable for running the vessel.
Held:
It is well settled in this jurisdiction that confidential and
managerial employees cannot be arbitrarily dismissed at any
time, and without cause as reasonably established in an
appropriate investigation. 15 Such employees, too, are entitled to
security of tenure, fair standards of employment and the
protection of labor laws.
The captain of a vessel is a confidential and managerial employee
within the meaning of the above doctrine. A master or captain,
for purposes of maritime commerce, is one who has command of
a vessel. A captain commonly performs three (3) distinct roles:
(1) he is a general agent of the shipowner; (2) he is also
commander and technical director of the vessel; and (3) he is a
representative of the country under whose flag he navigates. 16 Of
these roles, by far the most important is the role performed by
the captain as commander of the vessel; for such role (which,
to our mind, is analogous to that of "Chief Executive Officer"
[CEO] of a present-day corporate enterprise) has to do with the
operation and preservation of the vessel during its voyage and
the protection of the passengers (if any) and crew and cargo. In
his role as general agent of the shipowner, the captain has
authority to sign bills of lading, carry goods aboard and deal with
the freight earned, agree upon rates and decide whether to take
cargo. The ship captain, as agent of the shipowner, has legal
authority to enter into contracts with respect to the vessel and
the trading of the vessel, subject to applicable limitations
established by statute, contract or instructions and regulations of
the shipowner. 17 To the captain is committed the governance,
care and management of the vessel. 18 Clearly, the captain is
vested with both management and fiduciary functions.
It is plain from the records of the present petition that Captain
Tayong was denied any opportunity to defend himself.
Petitioners curtly dismissed him from his command and
summarily ordered his repatriation to the Philippines without
informing him of the charge or charges levelled against him, and
much less giving him a chance to refute any such charge.
a ship's captain must be accorded a reasonable measure of
discretionary authority to decide what the safety of the ship
and of its crew and cargo specifically requires on a
stipulated ocean voyage. The captain is held responsible, and
properly so, for such safety. He is right there on the vessel, in
command of it and (it must be presumed) knowledgeable as
to the specific requirements of seaworthiness and the
particular risks and perils of the voyage he is to embark
upon. The applicable principle is that the captain has control
of all departments of service in the vessel, and reasonable
discretion as to its navigation.
Dispositive: ACCORDINGLY, petitioners having failed to show
grave abuse of discretion amounting to loss or excess of
jurisdiction on the part of the NLRC in rendering its assailed
decision, the Petition for Certiorari is hereby DISMISSED, for lack
of merit. Costs against petitioners.
7.
TABACALERA INSURANCE CO VS NORTH FRONT
SHIPPING JEROME
6. Tabacalera Insurance v. North Front
Doctrine:
A charter party between a shipper and a carrier does not
convert the carrier into a private
carrier.
Failure on the part of the consignee to start unloading
operations upon notice constitutes
contributory negligence
Facts:
On August 1990, 20k sacks of corn grains were shipped on
board NORTH FRONT 777, a
ship owned by NORTH FRONT SHIPPING. It was consigned to
REPUBLIC FLOUR
MILLS, and insured with TABACALERA insurance.
When the cargo reached its destination, it was found that the
merchandise was already
moldy and deteriorating. It was found that the goods were
damaged due to contact with
SALT WATER. The insurers paid REPUBLIC FLOUR the value of
the goods and thereafter
sued NORTH FRONT SHIPPING for damages.
o The TC dismissed the complaint on the ground that the contract
entered into was
a charter-party agreement. As such, only ordinary diligence was
required of
NORTH FRONT. The inspection of the barge by the shipper and
the
representatives of the shipping company before actual loading,
coupled with the Permit to Sail issued by the Coast Guard,
sufficed to meet the degree of
diligence required of the carrier.
o CA affirmed but found that NORTH FRONT was a common
carrier and it
complied with its duty to exercise extraordinary diligence.
Issue: Was NORTH FRONT a COMMON CARRIER? Yes.
NORTH FRONT is a COMMON CARRIER
The charter-party agreement between North Front Shipping
Services, Inc., and Republic
Flour Mills Corporation did not in any way convert the common
carrier into a private carrier
North Front Shipping Services, Inc., is a corporation engaged in
the business of
transporting cargo and offers its services indiscriminately to the
public. It is without doubt a
common carrier. As such it is required to observe
extraordinary diligence in its
vigilance over the goods it transports.
Extraordinary diligence was NOT exercised
North Front Shipping Services, Inc., proved that the vessel was
inspected prior to actual
loading by representatives of the shipper and was found fit to
take a load of corn grains..
However, having been in the service since 1968, the master of the
vessel should have
known at the outset that corn grains that were farm wet and
not properly dried would
eventually deteriorate when stored in sealed and hot
compartments as in hatches of
a ship.
With this knowledge, the master of the vessel and his crew
should have undertaken
precautionary measures to avoid or lessen the cargo's
possible deterioration as they
were presumed knowledgeable about the nature of such
cargo. But none of such
measures was taken.
corn grains were farm wet and not properly dried when
loaded.
court below dismissed the complaint
It ruled that the contract entered into between North Front
Shipping Services, Inc., and Republic Flour Mills Corporation was
a charter-party agreement. As such, only ordinary diligence in
the care of goods was required of North Front Shipping Services,
Inc.
Court of Appeals ruled that as a common carrier required to
observe a higher degree of diligence North Front 777
satisfactorily complied with all the requirements hence was
issued a Permit to Sail after proper inspection. Consequently, the
complaint was dismissed and the motion for reconsideration
rejected.
So dismissed parin
ISSUE: WON NORTH front 777 should be considered a private
carrier due to the charter agreement? NO
Or WON the dismissal was proper? NO
HELD: WHEREFORE, the Decision of the Court of Appeals of 22
December 1994 and its Resolution of 16 February 1995 are
REVERSED and SET ASIDE. Respondent North Front Shipping
Services, Inc., is ordered to pay petitioners Tabacalera Insurance
Co., Prudential Guarantee & Assurance, Inc., and New Zealand
Insurance Co. Ltd., P1,313,660.00 which is 60% of the amount
paid by the insurance companies to Republic Flour Mills
Corporation, plus interest at the rate of 12% per annum from the
time this judgment becomes final until full payment. SO
ORDERED.
RATIO: The charter-party agreement between North Front
Shipping Services, Inc., and Republic Flour Mills Corporation did
not in any way convert the common carrier into a private carrier
A 'charter-party' is defined as a contract by which an entire ship,
or some principal part thereof, is let by the owner to another
person for a specified time or use; a contract of affreightment
by which the owner of a ship or other vessel lets the whole or a
part of her to a merchant or other person for the conveyance of
goods, on a particular voyage, in consideration of the payment of
freight x x x x Contract of affreightment may either be time
charter, wherein the vessel is leased to the charterer for a fixed
period of time, or voyage charter, wherein the ship is leased for a
single voyage. In both cases, the charter-party provides for the
hire of the vessel only, either for a determinate period of time or
for a single or consecutive voyage, the ship owner to supply the
ship's store, pay for the wages of the master of the crew, and
defray the expenses for the maintenance of the ship.
Upon the other hand, the term 'common or public carrier' is
defined in Art. 1732 of the Civil Code. The definition extends to
carriers either by land, air or water which hold themselves out as
ready to engage in carrying goods or transporting passengers or
both for compensation as a public employment and not as a
casual occupation x x x x
It is therefore imperative that a public carrier shall remain as
such, notwithstanding the charter of the whole or portion of a
vessel by one or more persons, provided the charter is limited to
the ship only, as in the case of a time-charter or voyage-charter
North Front Shipping Services, Inc., proved that the vessel was
inspected prior to actual loading by representatives of the
shipper and was found fit to take a load of corn grains. They
were also issued Permit to Sail by the Coast Guard. The master
of the vessel testified that the corn grains were farm wet when
loaded. However, this testimony was disproved by the clean bill
of lading issued by North Front Shipping Services, Inc., which did
not contain a notation that the corn grains were wet and
improperly dried. Having been in the service since 1968, the
master of the vessel would have known at the outset that corn
grains that were farm wet and not properly dried would
eventually deteriorate when stored in sealed and hot
compartments as in hatches of a ship. Equipped with this
knowledge, the master of the vessel and his crew should have
undertaken precautionary measures to avoid or lessen the
cargo's possible deterioration as they were presumed
knowledgeable about the nature of such cargo. But none of such
measures was taken.
the carrier failed to observe the required extraordinary diligence
in the vigilance over the goods placed in its care. The proofs
presented by North Front Shipping Services, Inc., were
insufficient to rebut the prima facie presumption of private
respondent's negligence, more so if we consider the evidence
adduced by petitioners.
It is not denied by the insurance companies that the vessel was
indeed inspected before actual loading and that North Front 777
was issued a Permit to Sail. They proved the fact of shipment and
its consequent loss or damage while in the actual possession of
the carrier. Notably, the carrier failed to volunteer any
explanation why there was spoilage and how it occurred. On the
other hand, it was shown during the trial that the vessel had
rusty bulkheads and the wooden boards and tarpaulins bore
heavy concentration of molds. The tarpaulins used were not
new, contrary to the claim of North Front Shipping Services, Inc.,
as there were already several patches on them, hence, making it
highly probable for water to enter.
Laboratory analysis revealed that the corn grains were
contaminated with salt water. North Front Shipping Services,
Inc., failed to rebut all these arguments.
However, we cannot attribute the destruction, loss or
deterioration of the cargo solely to the carrier. We find the
consignee Republic Flour Mills Corporation guilty
of
contributory negligence.
It was seasonably notified of the
arrival of the barge but did not immediately start the unloading
operations. No explanation was proffered by the consignee as to
why there was a delay of six (6) days. Had the unloading been
commenced immediately the loss could have been completely
avoided or at least minimized. As testified to by the chemist who
analyzed the corn samples, the mold growth was only at its
incipient stage and could still be arrested by drying. The corn
grains were not yet toxic or unfit for consumption. For its
contributory negligence, Republic Flour Mills Corporation should
share at least 40% of the loss.[7]
sacrificed deliberately.
Third, that from the expenses or damages caused follows the
successful saving of
the vessel and cargo.
Fourth, that the expenses or damages should have been
incurred or inflicted after
taking proper legal steps and authority
In this case, the 1st requisite was not fulfilled as the evidence
does not show that the
expenses sought to be recovered were incurred to save the ship.
The vessel ran aground
in fine weather and merely at the mouth of the river, which was
very shallow. It is the deliverance from an immediate, impending
peril, by a common sacrifice, that constitutes the
essence of general average. In the present case there is no
proof that the vessel had
to be put afloat to save it from imminent danger. What does
appear from the testimony
of plaintiff's manager is that the vessel had to be salvaged in
order to enable it "to proceed
to its port of destination." But as was said in the case just cited it
is the safety of the
property, and not of the voyage, which constitutes the true
foundation of the general
average
The 2nd requisite was also not fulfilled as the cargo did not
have to be sacrificed. It couldve
been unloaded by the owners if they were required to do so.
With respect to the third requisite, the salvage operation, was a
success. But as the
sacrifice was for the benefit of the vessel to enable it to
proceed to destination
and not for the purpose of saving the cargo, the cargo owners
are not in law bound to
contribute to the expenses.
The 4th requisite has not been proved, for it does not appear
that the expenses here in
question were incurred after following the procedure laid down
in article 813 et seq.
In conclusion A. MAGSAYSAY has not made out a case for
general average, with the
result that its claim for contribution against the defendant
cannot be granted
IF you are a shipper, and your goods are jettisoned, why do
you want a general
average loss? General average loss is a rule of equity. So that
others (other shipper and
ship owner) will pay you for your loss
G.R. No. L-6393
January 31, 1955
A. MAGSAYSAY INC., plaintiff-appellee,
vs.
ANASTACIO AGAN, defendant-appellant.
The S S "San Antonio", vessel owned and operated by plaintiff, left
Manila on October 6, 1949, bound for Basco, Batanes, vis Aparri,
Cagayan, with general cargo belonging to different shippers,
among them the defendant. The vessel reached Aparri on the
10th of that month, and after a day's stopover in that port,
weighed anchor to proceed to Basco. But while still in port, it ran
aground at the mouth of the Cagayan river, and, attempts to
refloat it under its own power having failed, plaintiff have it
refloated by the Luzon Stevedoring Co. at an agreed
compensation. Once afloat the vessel returned to Manila to refuel
and then proceeded to Basco, the port of destination. There the
cargoes were delivered to their respective owners or consignees,
who, with the exception of defendant, made a deposit or signed a
bond to answer for their contribution to the average.
crew. The cylinder should not have been near the engine room as
the heat generated therefrom could cause an explosion. It follows
therefore that the loss was not caused by a fortuitous event.
As a rule, general or gross averages include all damages and
expenses which are deliberately caused in order to save the
vessel, its cargo, or both at the same time, from a real and known
risk (Art. 811)
While the instant case may technically fall within the purview of
Art 811, the formalities prescribe under Articles 813 1and 814 of
the Code of Commerce in order to incur the expenses and cause
the damage corresponding to gross average were not complied
with. Consequently, ESLI's claim for contribution from the
consignees of the cargo at the time of the occurrence of the
average must be denied.
It follows therefore that the cargo consignees cannot be made
liable to the carrier for additional freight and salvage charges.
Consequently, carrier must refund to the insurer the amount it
paid under protest for additional freight and salvage charges in
behalf of the consignees.
Facts:
M/T Tacloban (barge-type oil tanker) collided with M/V Don Juan
( inter-island vessel carrying 750 passengers). When the collision
occurred, the sea was calm, the weather fair and visibility good.
As a result, M/V Don Juan sank and the passengers perished.
Petitioners are the children of the Macenas spouses who perished
due to the coliision. They file an action for damages alleging the
negligence of Capt. Santisteban (captain of Don Juan) and Negros
Navigation (owner of Don Juan).
RTC:
M/ V Don Juan and Tacloban City became aware of each other's
presence in the area by visual contact at a distance of something
like 6 miles from each other. They were fully aware that if they
continued on their course, they will meet head on. Don Juan steered to the right; Tacloban City continued its course to the left.
There can be no excuse for them not to realize that, with such
maneuvers, they will collide. They executed maneuvers
inadequate, and too late, to avoid collision.
The Court is of the considered view that the defendants are
equally negligent and are liable for damages. (p. 4, decision). RTC
ordered Negros Navigation and its capital jointly and severally
liable to pay damages to the petitioners.
The Court of Appeals, for its part, reached the same conclusion.
However, the CA deducted the damages awarded from 400k to
100k.
Issue:
1. Who was negligent?
2. Whether or not Capt. Santisteban and Negros Navigation was
negligent.
Held:
1. Both vessels were at fault.
Rule 18 of the International Rules of the Road which requires 2
power-driven vessels meeting end on or nearly end on each to
alter her course to starboard so that each vessel may pass on the
port side of each other.
In the case, M/V Tacloban, as held by the report of the
Commandant of the Philippine Coast Guard, failed to follow the
Rules. Hence, she was deemed negligent.
However, route observance of the International Rules of the Road
will not relieve a vessel from responsibility if the collision could
have been avoided by proper skill on her part or even a
departure from the rules.
M/V Don Juan having sighted M/V Tacloban when it was still a
long way off was negligent in failing to take early preventive
action and in allowing the 2 vessels to come into close quarters as
to render the collision inevitable when there was no necessity for
passing so near M/V Tacloban for Don Juan could choose its own
distance. It is noteworthy that M/V Tacloban upon turning hard
to port shortly before the moment of collision, signaled its
intention to do so by giving 2 short blasts with its horn. Don Juan
gave no answering horn blast to signal it's own intention and
proceeded to turn hard to starboard.
In an action based upon a breach of the contract of carriage, the
carrier under our civil law is liable for the death of passengers
arising from the negligence or wilful act of the carrier's
employees although such employees may have acted beyond the
scope of their authority or even in violation of the instructions of
the carrier, which liability may include liability for moral
damages. It follows that petitioners would be entitled to moral
damages so long as the collision with the "Tacloban City" and the
holding that the petitioners shall pay the additional filing fee that
is properly payable given the award specified below, and that
such additional filing fee shall constitute a lien upon the
judgment.
We consider, finally, the amount of damages-compensatory,
moral and exemplary-properly imposable upon private
respondents in this case. The original award of the trial court of
P400,000.00 could well have been disaggregated by the trial
court and the Court of Appeals in the following manner:
1.
actual or compensatory damages proved in the course
of trial consisting of actual expenses
incurred by petitioners
in their search for their
parents' bodies- -P126,000.00
2.
actual or compensatory
damages in case of
wrongful death
(P30,000.00 x 2) -P60,000.00 29
(3) moral damages -P107,000.00
(4) exemplary damages -P107,000.00
Total -P400,000.00
Considering that petitioners, legitimate children of the deceased
spouses Mecenas, are seven (7) in number and that they lost both
father and mother in one fell blow of fate, and considering the
pain and anxiety they doubtless experienced while searching for
their parents among the survivors and the corpses recovered
from the sea or washed ashore, we believe that an additional
amount of P200,000.00 for moral damages, making a total of
P307,000.00 for moral damages, making a total of P307,000.00 as
moral damages, would be quite reasonable.
Exemplary damages are designed by our civil law to permit the
courts to reshape behaviour that is socially deleterious in its
consequence by creating negative incentives or deterrents
against such behaviour. In requiring compliance with the
standard of extraordinary diligence, a standard which is in fact
that of the highest possible degree of diligence, from common
carriers and in creating a presumption of negligence against
them, the law seeks to compel them to control their employees, to
tame their reckless instincts and to force them to take adequate
care of human beings and their property. Both the demands of
substantial justice and the imperious requirements of public
policy compel us to the conclusion that the trial court's implicit
award of moral and exemplary damages was erroneously deleted
and must be restored and augmented and brought more nearly to
the level required by public policy and substantial justice.
SC: damages restored to 400k, other damages augmented as
follows
(a) P 126,000.00 for actual damages;
(b) P 60,000.00 as compensatory damages for wrongful death;
(c) P 307,000.00 as moral damages;
(d) P 307,000.00 as exemplary damages making a total of P
800,000.00; and
(e) P 15,000.00 as attorney's fees
1st Case
Petitioners
Respondent
Go Thong
(Fernandez)
2nd Case
(Cuevas)
Go Thong
ART 663 The second mate shall take command of the vessel in
case of the inability or disqualification of the captain and sailing
mate, assuming, in such case, their powers and liability.
Second Mate German simply did not have the level of experience,
judgment and skill essential for recognizing and coping with the
risk of collision as it presented itself that early morning when the
"Don Carlos," running at maximum speed and having just
overtaken the "Don Francisco" then approximately one mile
behind to the starboard side of the "Don Carlos," found itself
head-on or nearly head on vis-a-vis the "Yotai Maru. " It is
essential to point out that this situation was created by the "Don
Carlos" itself.
NOTE: What Sison, P.V., J. actually did was to disregard all the
facts found by Judge Cuevas, and found a duty on the "Yotai
Maru" alone to avoid collision with and to give way to the
"Don Carlos.
SISON: At a distance of 8 miles and with 10minutes before the
impact, [Katoh] and Chonabayashi had ample time to adopt
effective precautionary measures to steer away from the
Philippine vessel, particularly because both [Katoh] and
Chonabayashi also deposed that at the time they had first
eyesight of the "Don Carlos" there was still "no danger at all" of a
collision. Having sighted the "Don Carlos" at a comparatively safe
distance"no danger at all" of a collisionthe Japanese ship
should have observed with the highest diligence the course and
movements of the Philippine interisland vessel as to enable the
former to adopt such precautions as will necessarily present a
collision, or give way, and in case of a collision, the former is prima
facie at fault. Four minutes after first sighting the "Don Carlos", or
6 minutes before contact time, Chonabayashi revealed that the
"Yotai Maru" gave a one-blast whistle to inform the Philippine
vessel that the Japanese ship was turning to starboard or to the
right and that there was no blast or a proper signal from the "Don
Carlos".The absence of a reply signal from the "Don Carlos"
placed the "Yotai Maru" in a situation of doubt as to the course the
"Don Carlos" would take. Such being the case, it was the duty of the
Japanese officers "to stop, reverse or come to a standstill until the
course of the "Don Carlos" has been determined and the risk of a
collision removed.
The Court is unable to agree with the view thus taken by Sison,
P.V., J. By imposing an exclusive obligation upon one of the
vessels, the "Yotai Maru, " to avoid the collision, the Court of
Appeals not only chose to overlook all the above facts
constitutive of negligence on the part of the "Don Carlos;" it also
in effect used the very negligence on the part of the "Don Carlos"
to absolve it from responsibility and to shift that responsibility
exclusively onto the "Yotai Maru" the vessel which had observed
carefully the mandate of Rule 18 (a).
DISPOSITIVE PORTION: FOR ALL THE FOREGOING, the Decision
of the Court of Appeals dated 26 November 1980 in C.A.-G.R. No.
61206-R is hereby REVERSED and SET ASIDE. The decision of the
trial court dated 22 September 1975 is hereby REINSTATED and
AFFIRMED in its entirety. Costs against private respondent.
Facts:
Respondent Abdulhaman filed a case against Manila
Steamship Co Inc, owner of MS Bowline Knot, and Lim Hong
To, owner of M/L Consuelo V to recover damages for the
death of his 5 children and loss of personal properties on
board the M/L Consuelo V as a result of a maritime
collision between the 2 vessels
In 1948, the M/L Consuelo V left the port of Zamboanga City
for Siokon. On the same night, The M/S Bowline Knot was
heading to Zamboanga City. The weather was good and fair.
Abdulhaman, his wife and 5 children had paid their fare
beforehand
It began raining and there were strong winds for an hour.
This weather lasted for an hour then it became fair although
it was showering and the visibility was good enough.
The two vessels collided while the passengers were sleeping.
M/L Consuelo V capsized quickly (before the passengers
realized it, they were already floating and swimming) 9 died
and the cargo was lost.
Before the collision, none of the passengers were warned or
informed of the impending danger as the collision was so
sudden and unexpected. All those rescued at sea were
brought by the M/V Bowline Knot to Zamboanga City.
The Board of Marine Inquiry found that the commanding
officer of the colliding vessels had both been negligent in
operating their respective vessels. It held the owners of both
vessels solidarily liable to Abdulhaman for the damages
caused to him by the collision, under Article 827 of the Code
of Commerce; but exempted Defendant Lim Hong To from
liability by reason of the sinking and total loss of his vessel,
the M/L Consuelo V. CA affirmed.
Manila Steamship appealed because it was the one who was
ordered to pay damages.
o it is exempt from any liability under Article
1903 of the Civil Code because it had
exercised the diligence of a good father of a
family in the selection of its employees,
particularly Third Mate Simplicio Ilagan,
the officer in command of its vessels, the
M/S Bowline Knot, at the time of the
collision.
o It shouldnt be liable for the actions of its
agent (captain) and employees
Issue: WON Manila Steamship is liable YES
Ratio:
DUE DILIGENCE
The defense of due diligence is untenable. While it is true
that Plaintiffs action is based on a tort or quasi-delict, the
tort in question is not a civil tort under the Civil Code but a
maritime tort resulting in a collision at sea, governed by
Articles 826-939 of the Code of Commerce. Under Article 827
of the Code of Commerce, in case of collision between two
vessels imputable to both of them, each vessel shall suffer
her own damage and both shall be solidarily liable for the
damages occasioned to their cargoes. The characteristic
language of the law in making the vessels solidarily liable
the owner of a ship or other vessel lets the whole or part of her to
a merchant or other person for the conveyance of goods, on a
particular voyage, in consideration of the payment of freight.[11]
A contract of affreightment may be either time charter, wherein
the leased vessel is leased to the charterer for a fixed period of
time, or voyage charter, wherein the ship is leased for a single
voyage. In both cases, the charter-party provides for the hire of
the vessel only, either for a determinate period of time or for a
single or consecutive voyage, the ship owner to supply the ships
store, pay for the wages of the master of the crew, and defray the
expenses for the maintenance of the ship.[12]
Under a demise or bareboat charter on the other hand, the
charterer mans the vessel with his own people and becomes, in
effect, the owner for the voyage or service stipulated, subject to
liability for damages caused by negligence.
If the charter is a contract of affreightment, which leaves the
general owner in possession of the ship as owner for the voyage,
the rights and the responsibilities of ownership rest on the
owner. The charterer is free from liability to third persons in
respect of the ship.[13]
Second : MT Vector is a common carrier
Charter parties fall into three main categories: (1) Demise or
bareboat, (2) time charter, (3) voyage charter. Does a charter
party agreement turn the common carrier into a private one? We
need to answer this question in order to shed light on the
responsibilities of the parties.
In this case, the charter party agreement did not convert the
common carrier into a private carrier. The parties entered into a
voyage charter, which retains the character of the vessel as a
common carrier.
In Planters Products, Inc. vs. Court of Appeals,[14] we said:
It is therefore imperative that a public carrier shall remain as
such, notwithstanding the charter of the whole or portion of a
vessel by one or more persons, provided the charter is limited to
the ship only, as in the case of a time-charter or voyage charter.
It is only when the charter includes both the vessel and its crew,
as in a bareboat or demise that a common carrier becomes
private, at least insofar as the particular voyage covering the
charter-party is concerned. Indubitably, a ship-owner in a time
or voyage charter retains possession and control of the ship,
although her holds may, for the moment, be the property of the
charterer.
Later, we ruled in Coastwise Lighterage Corporation vs. Court of
Appeals:[15]
Although a charter party may transform a common carrier into a
private one, the same however is not true in a contract of
affreightment xxx
Under the Carriage of Goods by Sea Act :
Sec. 3. (1) The carrier shall be bound before and at the beginning
of the voyage to exercise due diligence to (a) Make the ship seaworthy;
(b) Properly man, equip, and supply the ship;
xxx
xxx
xxx
Thus, the carriers are deemed to warrant impliedly the
seaworthiness of the ship. For a vessel to be seaworthy, it must
be adequately equipped for the voyage and manned with a
sufficient number of competent officers and crew. The failure of
a common carrier to maintain in seaworthy condition the vessel
involved in its contract of carriage is a clear breach of its duty
prescribed in Article 1755 of the Civil Code.[18]
The provisions owed their conception to the nature of the
business of common carriers. This business is impressed with a
special public duty. The public must of necessity rely on the care
and skill of common carriers in the vigilance over the goods and
safety of the passengers, especially because with the modern
development of science and invention, transportation has
become more rapid, more complicated and somehow more
hazardous.[19] For these reasons, a passenger or a shipper of
Tokyo, Japan to the Philippines and that they were lost or due to
a collision which was found to have been caused by the
negligence or fault of both captains of the colliding vessels.
Hence,laws of the philippines will apply. the fact that collission
occurred in foreign waters is immaterial
Common carriers are presumed negligent unless they proved
they exercise extra ordinary diligence
Since there is no provision with regard to collission in the civil
code, resort to Articles 826 to 839, Book Three of the Code of
Commerce, which deal exclusively with collision of vessels, will
be had
More specifically, Article 826 of the Code of Commerce provides
that where collision is imputable to the personnel of a vessel, the
owner of the vessel at fault, shall indemnify the losses and
damages incurred after an expert appraisal. But more in point to
the instant case is Article 827 of the same Code, which provides
that if the collision is imputable to both vessels, each one shall
suffer its own damages and both shall be solidarily responsible
for the losses and damages suffered by their cargoes.
Significantly, under the provisions of the Code of Commerce,
particularly Articles 826 to 839, the shipowner or carrier, is not
exempt from liability for damages arising from collision due to
the fault or negligence of the captain. Primary liability is imposed
on the shipowner or carrier in recognition of the universally
accepted doctrine that the shipmaster or captain is merely the
representative of the owner who has the actual or constructive
control over the conduct of the voyage (Y'eung Sheng Exchange
and Trading Co. v. Urrutia & Co., 12 Phil. 751 [1909]).
There is, therefore, no room for NDC's interpretation that the
Code of Commerce should apply only to domestic trade and not
to foreign trade. Aside from the fact that the Carriage of Goods by
Sea Act (Com. Act No. 65) does not specifically provide for the
subject of collision, said Act in no uncertain terms, restricts its
application "to all contracts for the carriage of goods by sea to
and from Philippine ports in foreign trade." Under Section I
thereof, it is explicitly provided that "nothing in this Act shall be
construed as repealing any existing provision of the Code of
Commerce which is now in force, or as limiting its application."
By such incorporation, it is obvious that said law not only
recognizes the existence of the Code of Commerce, but more
importantly does not repeal nor limit its application.
The records show that the Riverside Mills Corporation and
Guilcon, Manila are the holders of the duly endorsed bills of
lading covering the shipments in question and an examination of
the invoices in particular, shows that the actual
consignees/subrogers of the said goods are the aforementioned
companies. Moreover, no less than MCP itself issued a
certification attesting to this fact.
MCP next contends that it can not be liable solidarity with NDC
because it is merely the manager and operator of the vessel Dona
Nati not a ship agent. As the general managing agent, according to
MCP, it can only be liable if it acted in excess of its authority.
As found by the trial court and by the Court of Appeals, the
Memorandum Agreement of September 13, 1962 (Exhibit 6,
Maritime) shows that NDC appointed MCP as Agent, a term broad
enough to include the concept of Ship-agent in Maritime Law. In
fact, MCP was even conferred all the powers of the owner of the
vessel, including the power to contract in the name of the NDC
It is well settled that both the owner and agent of the offending
vessel are liable for the damage done where both are impleaded
(Philippine Shipping Co. v. Garcia Vergara, 96 Phil. 281 [1906]);
that in case of collision, both the owner and the agent are civilly
responsible for the acts of the captain (Yueng Sheng Exchange
and Trading Co. v. Urrutia & Co., supra citing Article 586 of the
Code of Commerce; Standard Oil Co. of New York v. Lopez
Castelo, 42 Phil. 256, 262 [1921]); that while it is true that the
liability of the naviero in the sense of charterer or agent, is not
expressly provided in Article 826 of the Code of Commerce, it is
clearly deducible from the general doctrine of jurisprudence
under the Civil Code but more specially as regards contractual
obligations in Article 586 of the Code of Commerce. Moreover,
the Court held that both the owner and agent (Naviero) should be
declared jointly and severally liable, since the obligation which is
the subject of the action had its origin in a tortious act and did not
arise from contract (Verzosa and Ruiz, Rementeria y Cia v. Lim,
45 Phil. 423 [1923]). Consequently, the agent, even though he
may not be the owner of the vessel, is liable to the shippers and
owners of the cargo transported by it, for losses and damages
occasioned to such cargo, without prejudice, however, to his
rights against the owner of the ship, to the extent of the value of
the vessel, its equipment, and the freight.
As to the extent of their liability, MCP insists that their liability
should be limited to P200.00 per package or per bale of raw
cotton as stated in paragraph 17 of the bills of lading.
common carriers, in the language of the court in Juan Ysmael &
Co., Inc. v. Barrette et al., (51 Phil. 90 [1927]) "cannot limit its
liability for injury to a loss of goods where such injury or loss was
caused by its own negligence." Negligence of the captains of the
colliding vessel being the cause of the collision, and the cargoes
not being jettisoned to save some of the cargoes and the vessel,
the trial court and the Court of Appeals acted correctly in not
applying the law on averages (Articles 806 to 818, Code of
Commerce).