TRANSPORTATION LAWS 2018 - 2019
ACEVEDO | ALABAN | DELA CERNA | ESTREMOS | JAMERO | LUZ | PACLIBAR | PAULMA | SANTIAGO |
KINDS OF AVERAGES
1. Simple or Particular Average
It shall include all expenses and damages caused to the vessel
or to her cargo which has NOT inured to the common benefit
and profit of all the persons interested in the vessel and her
cargo. If damage is not a general average, it is considered a
simple or particular average.
Example: When you try to ship 100kg of garlic and when you
reach the port of destination, it is now only 90kg. It is caused
by the nature of the cargo and shall be borne by the owner of
the cargo.
. the vessel.
2. General or Gross Average
It shall include ALL the damages and expenses which are
deliberately caused in order to save the vessel, the cargo, or
both at the same time from a real and known risk.
Requisites of a General Average (Magsaysay Inc. Vs. Agan)
1. There must be a common danger;
Ma’am’s Comment: NOT only common but
imminent danger
2. For the common safety, part of the vessel or of the cargo or
both is sacrificed deliberately;
3. From the expenses or damages caused follows the
successful saving of the vessel and cargo;
4. The expenses and damage were incurred or inflicted after
taking proper legal steps and authority
Discussion: Because of that danger, there were deliberate
sacrifices- sacrifice of the part of the vessel. Because of that
deliberate sacrifice, you jettison. For example, from lowest
value then to the highest value. Or the one nearer to the area
where it can be thrown. So there are rules, it depends.
NOTE: The sacrifice must be successful. If it is not successful,
no general average can be demanded.
There must also be compliance with the legal steps provided
in Article 813-815.
ARTICLE 813. In order to incur the expenses and cause the
damages corresponding to gross average, there must be a
resolution of the captain, adopted after deliberation with the
sailing mate and other officers of the vessel, and after
hearing the persons interested in the cargo who may be
present.
If the latter shall object, and the captain and officers or
a majority of them, or the captain, if opposed to the majority,
should consider certain measures necessary, they may be
executed under his responsibility, without prejudice to the
right of the shippers to proceed against the captain before
the competent judge or court, if they can prove that he acted
with malice, lack of skill, or negligence.
If the persons interested in the cargo, being on board
the vessel, have not been heard, they shall not contribute to
the gross average, their share being chargeable against the
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captain,unless the urgency of the case should be such
that the time necessary for previous deliberations was.
ARTICLE 814. The resolution adopted to cause the
damages which constitute general average must
necessarily be entered in the log book, stating the motives
and reasons for the dissent, should. there be any, and the
irresistible and urgent causes which impelled the captain if
he acted of his own accord.
In the first case the minutes shall be signed by all the
persons present who could do so before taking action, if
possible; and if not, at the first opportunity. In the second
case, it shall be signed by the captain and by the officers of
In the minutes, and after the resolution, shall be stated in
detail all the goods jettisoned, and mention shall be made
of the injuries caused to those kept on board. The captain
shall be obliged to deliver one copy of these minutes to the
maritime judicial authority of the first port he may
make,within twenty four hours after his arrival, and to ratify
it immediately under oath.
ARTICLE 815. The captain shall direct the jettison, and
shall order the goods cast overboard in the following order:
1. Those which are on deck, beginning with those which
embarrass the maneuver or damage of the vessel,
preferring, if possible, the heaviest ones with the least utility
and value.
2. Those which are below the upper deck, always beginning
with those of the greatest weight and smallest value, to the
amount and number absolutely indispensable.
Simple Average vs. General Average
SIMPLE GENERAL
Borne by the owner of the NOT borne by the owner of
cargo the cargo; borne by everyone
interested in saving the
vessel and/or cargo
Example of general average
ARTICLE 811. As a general rule, general or gross
averages shall include all the 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, and particularly the following:
1. The goods or cash invested in the redemption of the
vessel or of the cargo captured by enemies,privateers, or
pirates, and the provisions, wages, and expenses of the
vessel detained during the time the settlement or
redemption is being made.
2. The goods jettisoned to lighten the vessel, whether they
belong to the cargo, to the vessel, or to the crew, and
the damage suffered through said act by the goods which
are kept on board.
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3. The cables and masts which are cut or rendered useless,
the anchors and the chains which are abandoned, in order
to save the cargo, the vessel, or both.
4. The expenses of removing or transferring a portion of the
cargo in order to lighten the vessel and place it in condition
to enter a port or roadstead, and the damage resulting
therefrom to the goods removed or transferred.
5. The damages suffered by the goods of the cargo by
the opening made in the vessel in order to drain it and
prevent its sinking.
6. The expenses caused in order to float a vessel
intentionally stranded for the purpose of saying it.
7. The damage caused to the vessel which had to be
opened, scuttled or broken in order to save the cargo.
8. The expenses for the treatment and subsistence of the
members of the crew who may have been wounded or
crippled in defending or saying the vessel.
9. The wages of any member of the crew held as hostage
by enemies, privateers, or pirates, and the necessary
expenses which he may incur in his imprisonment, until he
is returned to the vessel or to his domicile, should he prefer
it.
10. The wages and victuals of the crew of a vessel
chartered by the month, during the time that it is embargoed
or detained by force majeure or by order of the government,
or in order to repair the damage caused for the common
benefit.
11. The depreciation resulting in the value of the goods sold
at arrival under stress in order to repair the vessel by reason
of gross average.
12. The expenses of the liquidation of the average.
Discussion: Take note class in the first paragraph, it provides
the general rule. The enumeration is NOT exclusive. There
can be other situations that can be subject of a general or
gross average. As long as it complies with the requirements
provided by law.
Articles 813 and 814 are the formalities.
ARTICLE 816. In order that the goods jettisoned may be
included in the gross average and the owners thereof be
entitled to indemnity, it shall be necessary insofar as the
cargo is concerned that their existence on board be proven
by means of the bill of lading; and with regard to those
belonging to the vessel, by means of the inventory prepared
before the departure in accordance with the first paragraph
of Article 812..
Discussion: It is the captain that orders the jettison. Ano tong
embarrass? It is obstruction probably on the visibility of the
one maneuvering the vessel. [In the order of jettison] the
heaviest one will go first in terms of weight. The least utility and
value too. You can be refunded for the value of your cargo.
You have to prove it through a bill of lading, that that is the
value of your cargo. You prove that one of your cargoes was
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jettisoned. And that the saving was successful. And that all the
requisites have been complied with. With respect to the vessel,
there must be an inventory duly supported during the
departure of the vessel.
York Antwerp Rules
The thing can no longer be considered as a general average if
the thing is inevitably lost.
Under the York Antwerp (YA) Rules, it refers to a situation with
respect to loading of cargoes on deck because for international
overseas trade, cargoes on deck are NOT allowed. Why? Kasi
matagal ‘yan itravel (It takes long to transport). The cargoes
will be exposed to the forces of nature (heat, wind, sea, etc).
In domestic or inter-island trade, it is allowed. Because short
lang naman ang travel--short ang point of travel and
destination. If it is not allowed, it cannot be paid as a general
average.
ARRIVALS UNDER STRESS
Definition: It is the arrival of a vessel at the NEAREST and
MOST CONVENIENT port.
ARTICLE 819. If during the voyage the captain should
believe that the vessel cannot continue the trip to the port of
destination on account of the lack of provisions, well-
founded fear of seizure,privateers, or pirates, or by reason
of any accident of the sea disabling it to navigate,he shall
assemble the officers and shall summon the persons
interested in the cargo who may be present, and who may
attend the meeting without the right to vote; and if, after
examining the circumstances of the case, the reason should
be considered well-founded, the arrival at the nearest and
most convenient port shall be agreed upon, drafting and
entering the proper minutes, which shall be signed by all,in
the log book.The captain shall have the deciding vote, and
the persons interested in the cargo,may make the
objections and protests they may deem proper, which shall
be entered in the minutes in order that they may make use
thereof in the manner they may consider advisable.
Requisites:
If during the voyage the VESSEL CANNOT CONTINUE THE
TRIP to the port of destination due to:
1. Lack of provisions;
2. A well-founded fear of seizure, privateers, or pirates; OR
3. by reason of any accident of the sea disabling it to navigate
Formalities In Order to Make An Arrival Under
Stress (Art. 819):
1. Assembly of the officers, at which shall be summoned the
person interested in he cargo who may attend but who may
not vote;
2. Drafting and entering in the log book the proper minutes,
which shall be signed by all; and
3. Entry in the log book of the objections and protests of the
persons interested in the cargo
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Unlawful Arrival (Art. 820)
ARTICLE 820. An arrival shall not be considered lawful in
the following cases:
1. If the lack of provisions should arise from the failure
to take the necessary provisions for the voyage according
to usage and customs, or if they should have been rendered
useless or lost through bad stowage or negligence in their
care.
2. If the risk of enemies, privateers, or pirates should not
have been well known,manifest, and based on positive and
provable facts.
3. If the defect of the vessel should have arisen from the fact
that it was not repaired,rigged,equipped, and prepared in a
manner suitable for the voyage, or from some erroneous
order of the captain.
4. When malice, negligence, want of foresight, or lack of skill
on the part of the captain exists in the act causing the
damage.
One of the grounds of arrival under stress is the lack of
provisions but what is the extension provided by Art 820? If the
lack of provisions should arise from:
 the lack of failure to make the necessary provisions for
the voyage according to usage and custom,
 or the provision has been rendered useless or lost
through bad storage or negligence
Expenses of Arrival Under Stress (Art. 821)
ARTICLE 821. The expenses of an arrival under stress
shall always be for the account of the shipowner or agent,
but they shall not be liable for the damages which may be
caused the shippers by reason of the arrival provided the
latter is legitimate. Otherwise, the ship agent and the
captain shall be jointly liable.
Expenses of arrival under stress - shall be borne by the
shipowner or agent
If the arrival is not legitimate - The ship agent and the
captains shall be jointly liable for the damages which may be
caused of the shippers.
ARTICLE 822. If in order to make repairs to the vessel or
because there is danger that the cargo may suffer damage,
it should be necessary to unload, the captain must request
authorization from the competent judge or court for the
removal, and carry it out with the knowledge of the person
interested in the cargo, or his representative, should there
be any.
Duty to Continue Voyage Without Delay Stress
(lifted from Ace Notes)
It is the duty of the captain to continue the voyage without
delay after the cause pf the arrival under stress has ceased.
Otherwise, under Article 825 of the Code of Commerce, he
shall be held liable for damages that may be caused by the
delay. In case the cause of the arrival under stress should have
been the fear of enemies, privateers, or pirates, before the
captain may depart, there must be an assembly of the officers
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and the persons interested in the cargo in accordance with
Article 819 of the same code.
COLLISIONS AND ALLISION
Collision: It is the impact of two (2) moving vessels.
Allision: It is the impact between a moving vessel and a
stationary vessel.
So for the purposes of our application we first have to
determine if it is a collision or allision, because the nautical
rules shall apply insofar as who shall be considered the
burdened vessel or the privileged vessel.
Burdened Vessel vs. Privileged Vessel
Burdened Vessel Privileged Vessel
Is the one who is supposed to Is the vessel who is favoured,
give way; which means, the vessel
The vessel serving or giving whom the burdened vessel
way should give way to.
ARTICLE 826. If a vessel should collide with another,
through or 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.
ARTICLE 827. 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
occasioned to their cargoes.
Recap Obligations and Contracts: The kind of obligation
that is provided by law is joint and several.
ARTICLE 828. The provisions of the preceding article are
applicable to the use in which it cannot be determined which
of the two vessels has caused the collision.
The legal effect of 827 is the same with 828. If you cannot
determine who is at fault, they will bear their own losses and
both are solidarily liable for losses and damages.
ARTICLE 829. In the cases above mentioned the civil
action of the owner against the person causing the injury as
well as the criminal liabilities, which may be proper, are
reserved.
ARTICLE 830. If a vessel should collide with another,
through fortuitous event or force majeure, each vessel and
its cargo shall bear its own damages.
ARTICLE 831. If a vessel should be forced by a third vessel
to collide with another, the owner of the third vessel shall
indemnify 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 nearby, causing them
damages, the injury occasioned shall be considered as
particular average of the vessel run into.
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SOSOBAN | TENG

Discussion: Scenario here is parked/moored. Who will be

liable? It is a particular average. Each of the owner of the
vessel shall bear the losses/damages.

Ratio: Because no one is at fault. It is beyond his control.

Note: This only applies if it is properly anchored.

Nabangga yung isang vessel, particular average ng vessel na

nabanggan.

Doctrines

Arti. 828 Doctrine of Inexcusable

Fault:
Court cannot determine who
is at fault

Take note class that although the liability is not governed

by quasi-delict, liability here is still a negligence case.

TEST: test of a reasonable man with due consideration of the

person involved (the carrier, the captain, the crew involved)

The rule applied to quasi-delicts cannot be applied to collision

cases. For example, the doctrine of last clear chance cannot
be applied because Art 827. If both are negligent, it doesn’t
matter who had the last clear chance to avoid.

Rules

One vessel at fault (Art. 826) The owner of the vessel at

Both vessels at fault (Art
827)
Cannot be determined
which vessel is at fault (Art.
828)
Collision due to Fortuitous
Event (Art. 830)
Third vessel caused a
vessel to collide with
another (Art. 831)
Vessel Properly Moored
Collided Due to storm (Art.
832)
fault shall indemnify the
losses and damages after an
expert appraisal
Each one shall suffer his own
damages but both shall be
solidarily liable and
responsible for losses and
damages occasioned to their
cargoes
Art 827 shall apply:
Each one shall suffer his own
damages but both shall be
solidarily liable and
responsible for losses and
damages occasioned to their
cargoes
Each vessel and each cargo
shall bear its own damages
The owner of the third vessel
shall indemnify the losses
and damages caused and the
captain at that third vessel
shall be liable to the owner of
the ship-owner of that vessel.
It is a particular average. It
shall be borne by the owner of
the vessel.

DOCTRINE OF ERROR IN EXTREMIS - is a theory with

respect to the applicable rules provided in the three zones.