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OBLIGATIONS OF THE SHIPPER, CONSIGNEE AND PASSENGER I.

Effect of negligence of shipper or passenger

The Obligation to exercise due diligence is not limited to the carrier as the shipper is also obliged to exercise such in avoiding damage to the goods that are being shipped or injury in his person. a. Contributory Negligence of Shipper- is not a defense that will excuse the carrier from liability. It will only mitigate such liability. Art. 1741. If the shipper or owner merely contributed to the loss, destruction or deterioration of the goods, the proximate cause thereof being the negligence of the common carrier, the latter shall be liable in damages, which however shall be equitable reduced.

b. Contributory Negligence of Passengers does not bar recovery of damages for his death or injuries, if the proximate cause thereof is the negligence of the common carrier, but the amount of damages shall be equitable reduced. Art. 1762 Basis: The passenger must observe the diligence of a good father of a family to avoid injury in himself. Art. 1761

c. Causation - If the negligence of the shipper is the proximate and only cause of the loss, the carrier shall not be made liable. Overcomes the presumption of negligence on the part of the carrier. Acts of the shipper proving negligence: 1. Failure of the shipper to disclose the nature of the goods 2. Improper marking or direction as to destination 3. Improper loading when shipper assumes such responsibility. If the shipper fails to see to it that the goods are properly packed, the liability of the carrier may either be mitigated or barred depending on the circumstances. d. Avoidable Consequences requires passenger to lessen the damage or injury even if the carrier is responsible for such damage or injury. e. Last Clear Chance a negligent defendant is held liable to a negligent plaintiff, or even a plaintiff who has been grossly negligent in placing himself in peril, If he, aware of the plaintiffs peril, or according to some authorities, should have been aware of it in the reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff to avoid an accident. However, in the case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court, the Supreme Court ruled that the principle of last clear chance applies in a suit between the owners and drivers of colliding vehicles. It does not arise where a passenger demands

responsibility from the carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence. f. Assumption of Risk passengers must take such risks incident to the mode of travel, because carriers are not insurers of the lives of their passengers.

Payment of Freight Concept. Common carriers are subject to heavy regulation with respect to rates that they are charging the public. It is founded upon the police power of the State and statutes prescribing rules for the control and regulation of public utilities are a valid exercise thereof. When private property is used for public purpose and is affected with public interest, it ceases to be juris private only and becomes subject to regulation. State regulation. In regulating rates charged by public utilities, the State protects the public against arbitrary and excessive rates while maintaining the efficiency and quality of services rendered. However, the power to regulate rates does not give the State the right to prescribe rates which are so low as to deprive the public utility of a reasonable return on investment. Thus, the State must be one that yields a fair return on the public utility upon the value of the property performing the services rendered. Although the consideration to be paid to the carrier is still subject to the agreement of the parties, what can be agreed upon should not be beyond the maximum amount fixed by law. WHO WILL PAY THE FREIGHT The Shipper may pay the necessary freight before or at the time he delivers the goods to the carrier for shipment. He is primarily liable for the payment of freight charges whether or not he is the owner of the goods. The obligation to pay is implied from the fact the consignor has placed the goods with the carrier for the purpose of transportation. The Consignee may also pay the freight at the point of destination upon the stipulation of the parties. The consignee is bound by such stipulation the moment he accepts the goods. TIME TO PAY THE FREIGHT. The Code of Commerce provisions on Overland Transportation implies that in the absence of any agreement, the consignee who is supposed to pay must do so within twenty-four hours from the time of the delivery. Article 374 of the Code of Commerce provides: The consignees to whom the shipment was made may not defer the payment of the expenses and transportation charges of the hoods they receive after the lapse of twenty-four hours following their delivery; and in case of delay in his payment, the carrier may demand the judicial sale of the goods transported in an amount necessary to cover the cost of transportation and the expenses incurred.

Carriers Lien- If the consignor or consignee failed to pay the consideration for the transportation of the goods, the carrier may exercise his lien in accordance with Article 375 of the Code of Commerce which provides: Article 375. The goods transported shall especially bound to answer the cost of transportation and for the expenses and fees incurred for them during their conveyance and until the moment of their delivery. This special right shall prescribe eight days after the delivery has been made, and once prescribed, the carrier shall have no other action that that corresponding to him as an ordinary creditor. Payment of Demurrage In its strict sense, demurrage is the compensation provided for in the contract of affreightment for the detention of the vessel beyond the time agreed on for loading and unloading. Essentially, demurrage is the claim for damages for failure to accept delivery. In a broad sense, every improper detention of a vessel may be considered a demurrage. Damages are recoverable for a breach of implied obligation to load or unload the cargo with reasonable dispatch, but only by the party to whom the duty is owed and only against one who is a party to the shipping contract. Notice of arrival of vessels or conveyances, or of their placement for purposes of unloading is often a condition precedent to the right to collect demurrage charges.

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