Professional Documents
Culture Documents
Transportation
Law
Review
Based on the lectures of:
Atty. Melissa Romana
Suarez
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DILIGENCE REQUIRED:
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound
to observe extraordinary diligence in the vigilance
over the goods and for the safety of the passengers
transported by them, according to all the
circumstances of each case.
OF
COMMON
Notes:
1. So the public service commission has been
replaced by the following bodies:
LTO - private vehicles
LTFRB- common carrier
Civil Aeronautics Board - public airplanes
ATO- private planes (according to Lyndon)
MARINA - common carriers for sea
2.
As
to
whom it may
contract
Bound to carry
all pax
who
choose
to
employ it
Observe XOD
Negligence
is
presumed if pax
or goods do not
reach
final
destination
CC
and
Private
Involves a single
undertaking
May
choose
person with whom
it may contract
GFOF
Person
who
alleges negligence
must prove the
same
CC OF GOODS (CCOG)
Art. 1753. The law of the country to which the goods
are to be transported shall govern the liability of the
common carrier for their loss, destruction or
deterioration.
5. As to how
to
escape
liability
6.
As
to A CC performs
state
public
service
regulation
and is subject to
State regulation
between
1. Definition
3. Degree of
diligence
required
4.
As
to
presumption
of
negligence
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NOTES:
1. If foreign voyage or flight from foreign country
inbound to Phil - governed by Phil laws. If outbound,
carrier lands in US and there is complaint, can pax
sue CCOG here? Yes, apply conflicts of laws. (Saudia
Airlines case)
TEST TO DETERMINE IF ONE IS CCOG
a. He must be engaged in the business of carrying
goods for others as a public employment, and must
hold himself out as ready to engage in the
transportation of goods for person generally as a
business and not as a casual occupation;
b. He must undertake to carry goods of the kind to
which his business is confined;
c. He must undertake to carry by the method by which
his business is conducted and over his established
roads; and
d. The transportation must be for hire. (FPIC VS. CA)
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound
to observe extraordinary diligence in the vigilance
over the goods X X X
Such extraordinary diligence in the vigilance over the
goods is further expressed in Articles 1734, 1735, and
1745, Nos. 5, 6, and 7, while the extraordinary
diligence for the safety of the passengers is further set
forth in Articles 1755 and 1756.
Notes:
What is XOD in the vigilance of goods?
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act
of
competent
public
Notes:
From when: from the time the goods are
unconditionally placed in the possession of, and
received by the carrier for transportation.
Not actually place on the ship, it is enough even if
custody is transferred to the office/receiving office of
the carrier.
It ends: When the goods are delivered, actually or
constructively, by the carrier to the consignee, or to
the person who has a right to receive them, without
prejudice to the provisions of article 1738.
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Held: No. When the carrier under the terms of the bill
of lading had delivered the goods at the port of
destination, at that point he merely becomes the agent
of consignee and ceases to be liable as carrier for
loss or damages of the goods transported.
Thereafter, loss of goods in its hand for causes
beyond its control without negligence being proved,
cannot sustain a claim for damage against the carrier.
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(3)
Supported by a valuable consideration other
than the service rendered by the common carrier; and
(4)
Reasonable, just and not contrary to public
policy.
5. Macam vs. CA
Facts: Petitioner Macam exported watermelons and
mangoes to Hong Kong, Great Prospect Company is
the consignee. The bill of lading stated that one of the
bill must be presented by the Pakistan Bank as
consignee and GPC as the notify party. Upon arrival
in Hong Kong, the shipment was delivered by the
carrier directly to GPC and not to Pakistan Bank and
without surrendering the bill of lading. Was there a
proper delivery?
Notes:
1. De Guzman vs. CA: Cendana is not liable for the
loss of the goods because of the hijacking incident
because it fell under Art. 1745(6) . According to the
court,
VALIDITY OF STIPULATIONS
Can the CCOG and the shipper agree that the CCOG
will not be required to exercise XOD?
YES. As to the diligence required,
General rule: the CCOG and the shipper may enter
into an agreement/stipulation which lessens the
diligence required, but there are requisites:
ARTICLE 1744. A stipulation between the common
carrier and the shipper or owner limiting the liability of
the former for the loss, destruction, or deterioration of
the goods to a degree less than extraordinary
diligence shall be valid, provided it be:
(1)
(2)
In writing,
signed by the shipper or owner;
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lessening
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CARRIAGE OF PASSENGERS
Art. 1755. A common carrier is bound to carry the
passengers 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
circumstances.
Art. 1756. In case of death of or injuries to
passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as
prescribed in Articles 1733 and 1755.
Automatic presumption of negligence, rebutted by
proving that carrier excercised extraordinary diligence
for the safety of passengers according to the
circumstances of each case.
Baggage of passengers
With respect to baggage of passengers, we recognize
checked-in baggage and hand-carried baggages.
Passenger is responsible for his hand-carry
baggages.
Art. 1754. The provisions of Articles 1733 to 1753
shall apply to the passenger's baggage which is not in
his personal custody or in that of his employee. As to
other baggage, the rules in Articles 1998 and 2000 to
2003 concerning the responsibility of hotel-keepers
shall be applicable.
With respect to check in baggages, the applicable
provisions are the provisions we took up. However, if
the luggage is hand-carried, different provisions of the
CC will apply. (1998, 2000- 2003)
What is the summary for hand-carried items?
1. Art. 1998: The carrier shall be responsible for
hand-carried baggages as depositaries, provided that
notice was given to them, or to their employees, of the
effects brought by the passengers and that, on the
part of the latter, they take the precautions which said
carriers or their substitutes advised relative to the care
and vigilance of their effects.
2. Art. 2000. The responsibility referred to in the
preceding article shall include the loss of, or injury to
the personal property of the passenger caused by the
servants or employees of the carrier as well as
strangers; but not that which may proceed from any
force majeure.
DURATION OF LIABILITY
No provision for CC of pax for the duration of liability;
only cases
1. Bataclan vs. Medina (overturned bus which leaked
gasoline and was set on fire when villagers who
wanted to help brought torches)
Held: CC is still liable even if the bus was no longer in
transit. In the present case and under the
circumstances obtaining in the same, we do not
hesitate to hold that the proximate cause of the death
of Bataclan was the overturning of the bus, this for the
reason that when the vehicle turned not only on its
side but completely on its back, the leaking of the
gasoline from the tank was not unnatural or
unexpected; that the coming of the men with a lighted
torch was in response to the call for help, made not
only by the passengers, but most probably, by the
driver and the conductor themselves, and that
because it was very dark (about 2:30 in the morning),
the rescuers had to carry a light with them; and
coming as they did from a rural area where lanterns
and flashlights were not available, they had to use a
torch, the most handy and available; and what was
more natural than that said rescuers should
innocently approach the overturned vehicle to extend
the aid and effect the rescue requested from them. In
other words, the coming of the men with the torch was
to be expected and was a natural sequence of the
overturning of the bus, the trapping of some of its
passengers and the call for outside help. What is
more, the burning of the bus can also in part be
attributed to the negligence of the carrier, through its
driver and its conductor. According to the witnesses,
the driver and the conductor were on the road walking
back and forth. They, or at least, the driver should and
must have known that in the position in which the
overturned bus was, gasoline could and must have
leaked from the gasoline tank and soaked the area in
and around the bus, this aside from the fact that
gasoline when spilled, specially over a large area, can
be smelt and detected even from a distance, and yet
neither the driver nor the conductor would appear to
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AS TO AMOUNT OF LIABILITY
Art. 1758. When a passenger is carried gratuitously, a
stipulation limiting the common carrier's liability for
negligence is valid, but not for wilful acts or gross
negligence.
The reduction of fare does not justify any limitation of
the common carrier's liability.
General Rule: Cannot be limited
But under 1758, there are circumstances where this
liability is limited:
1. Pax carried gratuitously
2. Existence of stipulation limiting liability
3. Accident/Breach not caused by willful acts or gross
negligence.
Remember: Minimum amount that heirs of pax can
collect from CC is P 50,000 because this is indemnity
for death. CC is automatically liable for this minimum
amount; if it wants to lessen this amount, CC must
follow Art. 1758.
LIABILITY FOR ACTS OF EES
Art. 1759. Common carriers are liable for the death of
or injuries to passengers through the negligence or
wilful acts of the former's employees, although such
employees may have acted beyond the scope of their
authority or in violation of the orders of the common
carriers.
This liability of the common carriers does not cease
upon proof that they exercised all the diligence of a
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was breached because petitioners ticket was opendated is untenable. To begin with, the round trip
ticket issued by the carrier to the passenger was in
itself a complete written contract by and between the
carrier and the passenger. It had all the elements of a
complete written contract, to wit: (a) the consent of
the contracting parties manifested by the fact that the
passenger agreed to be transported by the carrier to
and from Los Angeles via San Francisco and
Hongkong back to the Philippines, and the carriers
acceptance to bring him to his destination and then
back home; (b) cause or consideration, which was
the fare paid by the passenger as stated in his ticket;
and, (c) object, which was the transportation of the
passenger from the place of departure to the place of
destination and back, which are also stated in his
ticket.
Interestingly, it appears that CATHAY was
responsible for the loss of the ticket. One of two (2)
things may be surmised from the circumstances of
this case: first, US Air (CATHAYs agent) had
mistakenly detached the San Francisco-Hongkong
flight coupon thinking that it was the San FranciscoLos Angeles portion; or, second, petitioners booklet
of tickets did not from issuance include a San
Francisco-Hongkong flight coupon. In either case, the
loss of the coupon was attributable to the negligence
of CATHAYs agents and was the proximate cause of
the non-confirmation of petitioner's return flight on 1
July 1988.
With regard to the second issue, we are of the firm
view that the appellate court seriously erred in
disallowing moral and exemplary damages. Although
the rule is that moral damages predicated upon a
breach of contract of carriage may only be
recoverable in instances where the mishap results in
the death of a passenger, or where the carrier is guilty
of fraud or bad faith, there are situations where the
negligence of the carrier is so gross and reckless as
to virtually amount to bad faith, in which case, the
passenger likewise becomes entitled to recover moral
damages, such as in the instant case.
4. PAL vs. CA (Sept. 22, 2008)
unaccompanied minors were not able
plane because PAL was not able to
indemnity bond executed by the minors'
they were travelling unaccompanied.
- Here, two
to board the
produce the
parents since
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take
part
in
marine
I. SHIP OWNER
II. SHIP AGENT - By agent is understood the person
intrusted with the provisioning of a vessel, or who
represents her in the port in which she happens to be.
ARTICLE 586. The owner of a vessel and the agent
shall be civilly liable for the acts of the captain and for
the obligations contracted by the latter to repair,
equip, and provision the vessel, provided the creditor
proves that the amount claimed was invested therein.
Notes:
1. Macondray vs. Provident (2004) - Canpotex,
shipper, shipped and loaded on board the vessel M/V
Trade Carrier, 5000 metric tons of Standard Grade
Muriate of Potash in bulk for transportation to and
delivery at the port of Sangi, Toledo City, Cebu, in
favor of ATLAS FERTILIZER CORPORATION,
Consignee. Upon arrival, it was discovered that the
shipment sustained losses.
MACONDRAY filed ANSWER, denying liability over
the losses, having NO absolute relation with
defendant TRADE AND TRANSPORT, the alleged
operator of the vessel who transported the subject
shipment; that accordingly, MACONDRAY is the local
representative of the SHIPPER; the charterer of M/V
TRADE CARRIER and not party to this case; that it
has no control over the acts of the captain and crew of
the Carrier and cannot be held responsible for any
damage arising from the fault or negligence of said
captain and crew.
The CA affirmed the trial courts finding that petitioner
was not the agent of Trade and Transport. The
appellate court ruled, however, that petitioner could
still be held liable for the shortages of the shipment,
because the latter was the ship agent of Canpotex
Shipping Services Ltd. -- the shipper and charterer of
the vessel M/V Trade Carrier.
H: In the present case, we find no compelling reason
to overturn the Court of Appeals in its categorical
finding that petitioner was the ship agent. Such
factual finding was not in conflict with the trial courts
ruling, which had merely stated that petitioner was not
the agent of Trade and Transport. Indeed, although it
Art. 580 (8) The part of the price which has not been
paid the last vendor, the credits pending for the payment
of material and work in the construction of the vessel,
when it has not navigated, and those arising from the
repair and equipment of the vessel and its provisioning
with victuals and fuel during its last voyage. x x x
(9) The amounts borrowed on bottomry bonds before the
departure of the vessel, proven by means of the contracts
executed according to law and recorded in the commercial
registry; the amounts borrowed during the voyage with the
authority mentioned in the foregoing subdivision, filling the
same requisites, and the insurance premium, proven by
the policy of the contract or certificate taken from the
books of the broker.
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3.
To have three folioed and stamped books,
placing at the beginning of each one a note of the
number of folios it contains, signed by the maritime
official, and in his absence by the competent authority.
In the first book, which shall be called "log book," he
shall enter every day the condition of the atmosphere,
the prevailing winds, the course sailed, the rigging
carried, the horsepower of the engines, the distance
covered, the maneuvers executed, and other incidents
of navigation. He shall also enter the damage suffered
by the vessel in her hull, engines, rigging, and tackle,
no matter what is its cause, as well as the
imperfections and averages of the cargo, and the
effects and consequence of the jettison, should there
be any; and in cases of grave resolutions which
require the advice or a meeting of the officers of the
vessel, or even of the passengers and crew, he shall
record the decision adopted. For the informations
indicated he shall make use of the binnacle book, and
of the steam or engine book kept by the engineer.
In the second book, called the "accounting book," he
shall enter all the amounts collected and paid for the
account of the vessel, entering specifically article by
article, the sources of the collection, and the amounts
invested in provisions, repairs, acquisition of rigging or
goods, fuel, outfits, wages, and all other expenses. He
shall furthermore enter therein a list of all the
members of the crew, stating their domiciles, their
wages and salaries, and the amounts they may have
received on account, either directly or by delivery to
their families.
In the third book, called "freight book," he shall
record the entry and exit of all the goods, stating their
marks and packages, names of the shippers and of
the consignees, ports of loading and unloading, and
the freight earned. In the same book he shall record
the names and places of sailing of the passengers
and the number of packages of which their baggage
consists, and the price of the passage.
Notes:
1. Of the three books, the log book is the most
important;
2. Haverton Shipping vs. NLRC - What is the
probative value of the entries in the logbook? Can you
use the log book as evidence? YES. It is an official
record of entries made by a person in the
performance of his duty required by law and are prima
facie evidence of the facts entered therein.
But in:
3. Centennial vs. Dela Cruz: In Wallem Maritime
Services, Inc. v. National Labor Relations
Commission, citing Haverton Shipping Ltd. v. National
Labor Relations Commission, the Court ruled that a
copy of an official entry in the logbook is legally
binding and serves as an exception to the hearsay
rule. In the said case, however, there was no
controversy as to the genuineness of the said entry
and the authenticity of the copy presented in
evidence.
In the instant case, respondent has consistently
assailed the genuineness of the purported entry and
the authenticity of such copy. He alleged that before
his repatriation, there was no entry in the ship's official
logbook regarding any incident that might have
caused his relief; that Captain Kowalewski's signature
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4.If, after the vessel has put to sea, she should return
to the port of departure, on account of risk of
pirates, enemies, or bad weather, and the
freighters should agree to unload her. (charterer
must pay owner for the voyage out, meaning one way)
Formal/Substantial requirements:
ARTICLE 652. A charter party must be drawn in
duplicate and signed by the contracting parties, and
when either does not know how or can not do so, by
two witnesses at their request.
The charter party shall include, besides the conditions
unrestrictedly stipulated, the following statements:
1.The kind, name, and tonnage of the vessel.
2.Her flag and port of registry.
3.The name, surname, and domicile of the captain.
4.The name, surname, and domicile of the agent, if
the latter should make the charter party.
5.The name, surname, and domicile of the
charterer, and if he states that he is acting by
commission, that of the person for whose account he
makes the contract.
6.The port of loading and unloading.
7.The capacity, number of tons or weight, or
measure which they respectively bind themselves to
load and transport, or whether it is the total cargo.
8.The freightage to be paid, stating whether it is
to be a fixed amount for the voyage or so much
per month, or for the space to be occupied, or for
the weight or measure of the goods of which the
cargo consists, or in any other manner
whatsoever agreed upon.
(PRIMAGE- a small allowance or compensation
payable to the master or owner of the vessel for the
use of its cables to load and unload the goods and to
the mariners for lading and unlading in port. So what
you pay those who load;
DEMURRAGE - an amount stipulated in the charter
party to be paid by the charter/shipper to the ship
owner for any delay. )
9.The amount of primage to be paid to the captain.
10.The days agreed upon for loading and
unloading. (laydays- no. of days between unloading
and departure)
11.The lay days and extra lay days to be allowed
and the rate of demurrage.
WHO CAN RESCIND A CHARTER PARTY:
Either party
Charter Party
Period
Effect
of sale
rd
to 3
person
Ordinary
Lease
Contract
If the lease is for a
definite period, the
lessee
cannot
terminate the contract
If the leased property
is sold to one who
knows
of
the
existence of the lease
contract, the new
owner must respect
the lease
Case:
Santiago Lighterage vs. CA: Seaworthiness cannot
be agreed to between the parties (parang jurisdiction
of the court) because it is a fact which has to be
proven.
Fx: In this case two charter parties were entered into.
The owner of the vessel was Santiago. He chartered
the vessel to B (bareboat charter). B chartered the
vessel to C (voyage charter). The vessel was
supposed to carry an ore to South Korea. On the way
to pick up the ore from Manila to Zambales, the
vessel had to undergo repairs. In short it never
reached Korea.
The pertinent provisions of the contract between
Santiago and B reads: "3.
Delivery The VESSEL
shall be delivered and taken over by the
CHARTERERS at the port of the City of Manila, in
such ready berth as the CHARTERERS may direct.
The OWNER shall before and at the time of delivery
exercise due diligence to make the VESSEL
seaworthy and in every respect ready in hull,
machinery and equipment for service hereunder. The
VESSEL shall be properly documented at time of
delivery.
The delivery to the CHARTERERS of the VESSEL
and the taking over of the VESSEL by the
CHARTERERS shall constitute a full performance by
the OWNER of all the OWNERS obligations
hereunder, and thereafter the CHARTERERS shall
not be entitled to make or assert any claim against the
OWNER on account of the representations or
warranties expressed or implied with respect to the
VESSEL but the OWNER shall be responsible for
repairs or renewals occasioned by latent defects in
the VESSEL, her machinery or appurtenances
existing at the time of delivery under this Agreement,
provided such defects have manifested before turnover."
What is the liability of Santiago as the owner?
Held: The mere physical transfer of MV Christine Gay
from petitioner to Pelaez does not constitute full
performance of its obligation under their bareboat
charter agreement.
Neither is it considered a
delivery. Under the agreement, physical transfer of a
seaworthy vessel is necessary to satisfy delivery.
Seaworthiness is a relative term. The degree of
seaworthiness varies in relation to the contemplated
voyage.
To be seaworthy, a vessel must have that degree of
fitness which an ordinary, careful and prudent owner
would require his vessel to have at the
commencement of her voyage, having regard to all
the probable circumstances of it. Thus the degree of
seaworthiness varies in relation to the contemplated
voyage. Crossing the Atlantic calls for stronger
equipment than sailing across the Visayan Sea. It is
essential to consider that once the necessary degree
of seaworthiness has been ascertained, this
obligation is an absolute one, i.e. the undertaking is
that the vessel actually is seaworthy. It is no excuse
that the shipowner took every possible precaution to
make her so, if in fact he failed.
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BOTTOMRY
AND
Need not be in
writing
rd
To be binding on 3
persons, need not
be registered
Loss of collateral, if
any
does
not
extinguish the loan
Loan
on
Bottomry/respondentia
Must always have collateral
Collateral must be a vessel or
a cargo subject to maritime
risk
Payment depends on the safe
arrival by the collateral at the
port of the loan
Must be in writing
Must be registered in the
registry of vessels
Loss of collateral extinguishes
the loan.
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provided
Examples of P/A:
1. The damages suffered by the cargo from the time
of its embarkation until it is unloaded, either on
account of the nature of the goods or by reason of an
accident at sea or force majeure, and the expenses
incurred to avoid and repair the same.
2.The damages suffered by the vessel in her hull,
rigging, arms, and equipment, for the same causes
and reasons, from the time she puts to sea from the
port of departure until she anchored in the port of
destination.
3.The damages suffered by the merchandise loaded
on deck, except in coastwise navigation, if the marine
ordinances allow it.
4.The wages and victuals of the crew when the vessel
should be detained or embargoed by a legitimate
order or force majeure, if the charter should have
been for a fixed sum for the voyage.
5.The necessary expenses on arrival at a port, in
order to make repairs or secure provisions.
6.The lowest value of the goods sold by the captain in
arrivals under stress for the payment of provisions and
in order to save the crew, or to cover any other
requirement of the vessel against which the proper
amount shall be charged.
7.The victuals and wages of the crew during the time
the vessel is in quarantine.
8.The damage suffered by the vessel or cargo by
reason of an impact or collision with another, if it were
accidental and unavoidable. If the accident should
occur through the fault or negligence of the captain,
the latter shall be liable for all the damage caused.
9.Any damage suffered by the cargo through the
faults, negligence, or barratry of the captain or of the
crew, without prejudice to the right of the owner to
recover the corresponding indemnity from the captain,
the vessel, and the freight.
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Cases:
1. Magsaysay vs. Agan
Facts: The S S San Antonio, a vessel owned and
operated by A. Magsaysay Inc., left Manila on 6
October 1949, bound for Basco, Batanes, via Aparri,
Cagayan, with general cargo belonging to different
shippers, among them Anastacio Agan. The vessel
reached Aparri on the 10th of that month, and after a
days 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,
Magsaysay had it refloated by the Luzon Stevedoring
Co. at an agreed compensation. The stranding of
Magsaysays vessel was due to the sudden shifting of
the sandbars at the mouth of the river which the port
pilot did not anticipate. 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 Agan, made a
deposit or signed a bond to answer for their
contribution to the average.
On the theory that the expenses incurred in floating
the vessel constitute general average to which both
ship and cargo should contribute, Magsaysay brought
the action in the CFI of Manila to make Agan pay his
contribution, which, as determined by the average
adjuster, amounts to P841.40. Agan, in his answer,
denies liability for this amount, alleging, among other
things, that the stranding of the vessel was due to the
fault, negligence and lack of skill of its master, that the
expenses incurred in putting it afloat did not constitute
general average, and that the liquidation of the
average was not made in accordance with law. After
trial, the lower court found for Magsaysay and
rendered judgment against Agan for the amount of
the claim, with legal interests. From this judgment,
Agan has appealed directly to the Supreme Court.
The Supreme Court reversed the decision appealed
from, and dismissed Magsaysays complaint.
Held: Herein, while the expenses incurred in putting
Magsaysays vessel afloat may well come under
number 2 of article 809 which refers to expenses
suffered by the vessel by reason of an accident of
the sea or force majeure and should therefore be
classified as particular average, the said expenses do
not fit into any of the specific cases of general
average enumerated in article 811. Number 6 of
Article 811 does mention expenses caused in order
to float a vessel, but it specifically refers to a vessel
intentionally stranded for the purpose of saving it and
would have no application where, as in the present
case, the stranding was not intentional.
With respect to Requisites of General average:
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Case:
1. Manila Steamship vs. Abdulhaman: Can
shipowner raise the defense of GFOF in case of
collision?
This defense is untenable. While it is true that
plaintiff's action against petitioner 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 for the damages due to the
maritime collision emphasizes the direct nature of the
responsibilities on account of the collision incurred by
the shipowner under maritime law, as distinguished
from the civil law and mercantile law in general. This
direct responsibility is recognized in Article 618 of the
Code of Commerce under which the captain shall be
civilly liable to the ship agent, and the latter is the one
liable to third persons.
Other issue: Can the doctrine of limited liability be
invoked? No, because there was fault on the part of
both the vessels.
We agree, however, with petitioner-appellant, that the
Court of Appeals was in error in declaring the
respondent Lim Hong To, owner of the M/L "Consuelo
V", exempt from liability to the original plaintiff,
Abdulhaman, in view of the total loss of his own
vessel, that sank as a result of the collision. It is to be
noted that both the master and the engineer of the
motor launch "Consuelo V" were not duly licensed.
ARTICLE 826. If a vessel should collide with another
through the fault, negligence, or lack of skill of the
captain, sailing mate, or any other member of the
complement, the owner of the vessel at fault shall
indemnify the losses and damages suffered, after an
expert appraisal. aisadc
ARTICLE 827. If both vessels may be blamed for the
collision, each one shall be liable for his own
damages, and both shall be jointly responsible for the
losses and damages suffered by their cargoes.
ARTICLE 828. The provisions of the foregoing article
are applicable to the case in which it can not be
decided which of the two vessels was the cause of the
collision.
ARTICLE 829. In the cases above mentioned the
civil action of the owner against the person liable for
the damage is reserved, as well as the criminal
liabilities which may be proper.
ARTICLE 830. If a vessel should collide with another
by reason of an accident or through force majeure,
each vessel and her cargo shall be liable for their own
damage.
ARTICLE 831. If a vessel should be forced to collide
with another one by a third vessel, the owner of the
third vessel shall indemnify for the losses and
damages caused, the captain thereof being civilly
liable to said owner.
ARTICLE 832. If, by reason of a storm or other cause
of force majeure, a vessel which is properly anchored
and moored should collide with those in her
immediate vicinity, causing them damage, the injury
occasioned shall be looked upon as particular
average to the vessel run into. 2005letcd
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COGSA
cases:
1. American Insurance vs. Compania Maritimavoyage was from NY to Mla to Cebu; the bill of lading
states the freight was prepaid all the way to Cebu.
From NY to Mla, the vessel was MV X. From Mla to
Cebu, MV Y, so there was transshipment.
CODE
OF
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Note:
1. The prescpriptive period for filing an action in court
is 1 year after the delivery of the goods if the goods
are destroyed or damaged or 1 year after the date
when the goods should have been delivered if they
are lost.
2. What is the effect if you do not file a notice of loss?
In E.E. Elser vs. CA, the SC held that it shall NOT
prejudice the right of the shipper to bring the suit
within the one year period.
So even if 3.6 requires a notice of claim to be filed
with the carrier, according to the SC, under the
COGSA, it is not jurisdictional.
Unlike the Code of Commerce which does not have a
prescriptive period for filing a complaint in court, follow
the Civil Code provision (10 years or 6 years)
3. What is the effect if you do not file a case in court
within the one year period? The carrier and the ship
shall be discharged from liability.
4. Chua Kay vs. Everett Steamship: The cargo was
received on Feb 26, 1947; the case was filed on May
7, 1948 - obviously, the case has prescribed.
5.Maritime Agencies vs. CA - Oct. 20,1979 the last
item was shipped and delivered to the consignee. An
action was filed against the carriery by the consignee
on December 19, 1980. In april 20, 1981, an action
was filed against the ship agent.
Against the carrier, it has not prescribed because it
was filed within the one year period (huh?check the
facts na lang) but against the ship agent, the same
has prescribed because it was outside the one year
period already.
WHAT LAW PREVAILS WITH RESPECT TO THE
PRESCRIPTIVE PERIOD?
The SC said that the Civil Code did not impliedly
repeal the prescriptive period of the Cogsa. Because
the COGSA is a special law, the one year period shall
prevail for foreign trade of goods by sea.
DOLE VS. MARITIME (BAR Q) - Cargo was
discharged to the custody of the consignee on Dec.
18, 1971. Dole filed a notice of claim with the carrier
on May 5, 1972, 5 months after. The complaint in
court was on June 11, 1973, 1 1/2 year from
discharge. Has the action prescribed ?
YES. 1) an extra judicial demand does not interrupt
the running of the prescriptive period (of one year). 2)
even if it does interrupt, the case was still filed 1 year
and 1 month from filing of claim.
Doctrine: Only the filing in court will interrupt the
running of the period.
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