cases canon 12 code of professional responsibility

8/18/2019 Cases Canon 12 code of professional responsibility

1/43

G.R. No. L-34369 September 30, 1974

ANTONIO VILLASIS, MATERNIDAD V. VILLASIS !" SANTIAGO ORENDAIN, petitioners,

vs.

#ONORA$LE %O&RT O' A((EALS, ELE&TERIO VILLASIS !" LA&RA S.

VILLASIS, respondents.

Augusto A. Kimpo for petitioners.

Silvestre Untaran, Jr. for respondents.

TEE#AN)EE, J.: p

The Court in dismissing the petition and affirming the appellate court's dismissal of petitioners-

appellants' appeal for failure to file appellants' brief finds that petitioners have shown no valid and

justifiable reason for their inexplicable failure to file their brief and have only themselves to blame for

their counsel's utter inaction and gross indifference and neglect in not having filed their brief for a year

since receipt of due notice to file the same.

The case originated in the Antiue court of first instance where after due trial judgment was rendered in

favor of respondents-plaintiffs upholding their action for uieting of title with recovery of possession and

damages.

!etitioners-defendants appealed the adverse judgment to the Court of Appeals. "n #une $%, &(),petitioners as appellants received notice through their counsel *enjamin +. alente to submit the

appellants' brief within the reglementary forty-five day period to expire on August , &().

"n August &), &() the last day of the reglementary period, August being a unday/, petitioners'

counsel, Atty. alente, filed a motion to withdraw as counsel due to his having been employed as

technical assistant in the upreme Court, with a prayer that appellants' newly engaged counsel be

given sufficient time to file their brief. aid new counsel, Atty. 0sdras 1. Tayco, filed on August &2, &()

his appearance with the appellate court.

"n August $(, &(), the appellate court received respondents-appellees' motion to dismiss the appeal

dated August %, &() for appellants' failure to file their brief within the reglementary period.

"n eptember &$, &(), the appellate court reuired both counsels of appellants, Atty. alente whose

withdrawal it held in abeyance until he filed a proper motion in verified form with the signed conformity

of the clients as per its resolution of August &2, &()/ and Atty. Tayco to comment on the dismissalmotion.

3ithdrawing counsel alente filed his manifestation dated eptember $2, &() alleging inter alia that he

had not received a copy of the dismissal motion and could not therefore comment thereon and

submitting therewith the signed conformity of his clients to his withdrawal and reiterating his prayer for

the court to grant his withdrawal and to grant appellants sufficient time to file their brief. 4ew c

Tayco filed no comment whatsoever.

The appellate court granted withdrawing counsel's motion to withdraw per its resolution of "c

&() but meanwhile issued no resolution on the appellees' motion to dismiss the appeal.

"n #une $%, &(& or after the lapse of more than eleven && months or to be more exact, 5&

without appellants having filed their brief at all, the appellate court's special sixth division 1 is

resolution granting the dismissal motion and dismissing the appeal on the ground stated by appe

their motion that appellants had failed to file their brief within the reglementary 6%-day period.

7t was only then that new counsel Tayco apparently stirred from almost a year of inaction andmotion dated #uly &5, &(& for reconsideration of the dismissal of the appeal on the ground tha

new counsel had not received the notice to file brief. The appellate court per its resolution of Aug

&(& denied the motion for reconsideration, pointing out that 8Attorney Tayco's appearance was

9on August &2, &(): after the period for filing brief had already expired 9on August &), &():.8 *

4ew counsel Tayco filed a second motion for reconsideration on eptember &), &(& still

having filed appellants, brief, which the appellate court 3 denied per its resolution of "ctober ;, &

ed both counsels per its resolution of eptember &$

which in effect granted appellants the sufficient time as>ed by Atty. alente in his withdrawal mofile their brief/ to comment on the dismissal motion but withdrawing counsel alente claimed h

not file any comment as he had not received the motion while new counsel Tayco ignored the

resolution and filed no comment and filed no brief?

0ven going by new counsel Tayco's mista>en notion that he was entitled to a new notice to file b

appellate court's resolution of eptember &$, &() reuiring his comment on the motion to d


2/43

appeal for failure to file appellant's brief was tantamount to such notice and he should then have

prepared and filed the brief within forty-five days thereafter. *ut as already pointed out, he never filed

the appellants' brief during the interval of almost && months that the appellate court too> before it finally

dismissed the appeal per its resolution of #une $%, &(&. @uring all this period and even during the

three months that followed when he filed two motions for reconsideration, he presented no earnest of

prosecuting the appeal by at least filing the brief even at that late date but contented himself with a

perfunctory prayer in his motion that 8appellants be allowed to file their brief.8?

The appellate court committed no error therefore in dismissing the appeal. !etitioners-appellants have

shown no valid and justifiable reason for their inexplicable failure to file their brief and have only

themselves to blame for their counsel's utter inaction and grow indifference and neglect in not having

filed their brief for a year since receipt of due notice to file the same. They could not even claim

ignorance of the appellate court's notice to file brief since it had reuired withdrawing counsel alente to

secure their written conformity before granting his withdrawal as counsel, and certainly they must have

ascertained from him as well as new counsel the status of their appeal which accounts for Atty.

alente's repeated prayers in his two motions for withdrawal for the granting of sufficient time for new

counsel to file the brief. They had almost a year thereafter to ma>e sure that their new counsel did

attend to their appeal and did file the brief.

The case of Alonso vs. Rosario 4 cited by petitioners is clearly inapplicable. There, appellants had filed

an opposition to the motion to dismiss their appeal filed by appellee just five days after the notice to file

brief was served/ as>ing that they be allowed to file the brief after notice of denial of the motion, and

when the appellate court denied both the dismissal and the extension, they moved for reconsideration

and for at least &% days to file their brief, but the court therein both denied reconsideration and

dismissed the appeal as well for failure to file brief within the reglementary period. 3ithin five %/ days of

such dismissal, appellants nevertheless filed their brief. This Court in reinstating the appeal held that

8the period consumed during the pendency of the motion to dismiss should be excluded from the period

given to petitioners to submit their brief, and if this is done, the brief submitted by them on April &(, &%(

may be deemed presented in due time.8

7t is manifest that there are two basic differences in this caseB here, the motion to dismiss the appeal

was filed precisely on the ground of failure to file the brief after the expiration of the 6%-day

reglementary period and no uestion of suspension of the period arises, whereas there, the appellee

uestioned appellants' right to appeal when only % days of their 6%-day period had elapsed such that

the rule + that a motion to dismiss 8interrupts the time to plea8 was applied by this Court by analogy and

here, petitioners-appellants never filed their brief while there appellants immediately filed their brief

within % days of notice of dismissal of their appeal.

7t may parenthetically be noted that aside from petitioners' bare assertion of merit in their appeal, the

Court has not been shown that to reinstate the appeal would serve any purpose and not just be a futilewaste of time, since petitioners have never submitted their brief nor their proposed assignment of errors

against the trial court's verdict. To cap it all, petitioners in praying for a reversal of the appellate court's

dismissal of their appeal, pray that they be given an extension of fifteen &%/ days from notice of the

decision within which to file the appellants' brief at last?/. uch laches and lassitude on their part serve

but to confirm the correctness of the appellate court's dismissal of their appeal.

ACC"D@74EFG, the petition at bar is dismissed with costs against petitioners.

G.R. No. 11*43-39 Deember 1*, 199+

%#EM(#IL E/(ORT IM(ORT %OR(ORATION %EI%2, pe

vs.

T#E #ONORA$LE %O&RT O' A((EALS AIME . GON5ALES, A!ee o8 te $!:

(;pp!e I;!" $(I2, RI5AL %OMMER%IAL $AN)ING %OR(ORATION R%$%2, LAND

O' T#E (#ILI((INES L$(2, (#ILI((INE %OMMER%IAL INTERNATIONAL $AN) (%I

T#E (#ILI((INE INVESTMENT SSTEM ORGANI5ATION (ISO2, respondents.

G.R. No. 113394 Deember 1*, 199+

(#ILI((INE %OMMER%IAL IND&STRIAL $AN) AND ITS ASSIGNEE AIMGON5ALES2 petitioner,

vs.

#ONORA$LE %O&RT OR A((EALS !" %#EM(#IL E/(ORT AND IM(ORT %OR(OR

%EI%2,respondents.

)A(&NAN, J.:

*efore us is a legal tug-of-war between the Chemphil 0xport and 7mport Corporation her

referred to as C07C/, on one side, and the !7" and #aime EonHales as assignee of the *an>

!hilippine 7slands *!7/, DiHal Commercial *an>ing Corporation DC*C/, Fand *an> of the !hil

F*!/ and !hilippine Commercial 7nternational *an> !C7*/, on the other hereinafter referred to

consortium/, over &,(&(,;(2 shares of stoc> hereinafter referred to as the 8disputed shares8

Chemical 7ndustries of the !hilippines ChemphilIC7!/.

"ur tas> is to determine who is the rightful owner of the disputed shares.

!ursuant to our resolution dated 5) +ay &6, the instant case is a consolidation of two petit

review filed before us as followsB

7n E.D. 4os. &&$652-5, C07C see>s the reversal of the decision of the Court of Appeals former

@ivision/ promulgated on 5) #une &5 and its resolution of $ "ctober &5, denying peti

motion for reconsideration in the consolidated cases entitled 8@ynetics, 7nc., et al. v. !7", et a

E.D. 4o. $)6;(/ and 8@ynetics, 7nc., et al. v. !7", et al. C07C, 7ntervenor-Appellee8 CA-E.D.

$;%&&/.

The dispositive portion of the assailed decision reads, thusB

3


3/43

$. The "rders of the Degional Trial Court dated @ecember &, &2 and +arch %, &) are hereby

D00D0@ and 0T A7@0 and judgment is hereby rendered confirming the ownership of the

consortium over the Chemphil shares of stoc>, subject of CA-E.D. C 4o. $;%&&, and the "rder dated

eptember 6, &2, is reinstated.

4o pronouncement as to costs.

" "D@0D0@. 1

7n E.D. 4o. &&556, !C7* and its assignee, #aime EonHales, as> for the annulment of the Court of

Appeals' decision former pecial 4inth @ivision/ promulgated on $; +arch &5 in 8!C7* v. and transfer boo>s of Chemphil on the same date. 6

"n ; eptember &2%, the writ of attachment in favor of *TC was lifted. en further steps to prosecute the case and

$/ The motion to submit said defendant's counterclaim for decision is denied there is no nee

counterclaim is li>ewise dismissed under the authority of Dalman vs. City Court of Dipolog

;5&6, #anuary $&, &2%, wherein the upreme Court stated that if the civil case is dismissed,

is the counterclaim filed therein. 8A person cannot eat his ca>e and have it at the same time8

record, ol. 7/. 10

The motions for reconsideration filed by the consortium were, li>ewise, denied by the trial cou

order dated $) +ay &22B

The Court could have stood pat on its order dated $% +arch &22, in regard to which the defe

ban>s concerned filed motions for reconsideration. of Court. 13


4/43


5/43


6/43

"n 5) #une &5, the Court of Appeals Twelfth @ivision/ in CA-E.D. 4o. $;%&& and CA-E.D. 4o.

$)6;( rendered a decision reversing the orders of the trial court and confirming the ownership of the

consortium over the disputed shares. C07C's motion for reconsideration was denied on $ "ctober

&5. 3+

7n ruling for the consortium, the Court of Appeals made the following ratiocinationB 36

"n the first issue, it ruled that the evidence offered by the consortium in support of its counterclaims,

coupled with the failure of @ynetics and Earcia to prosecute their case, was sufficient basis for the DTC

to pass upon and determine the consortium's counterclaims.

The Court of Appeals found no application for the ruling in Dalman v . City Court of Dipolog , &56 CDA

$65 &2%/ that 8a person cannot eat his ca>e and have it at the same time. 7f the civil case is

dismissed, so also is the counterclaim filed therein8 because the factual bac>ground of the present

action is different. 7n the instant case, both @ynetics and Earcia and the consortium presented

testimonial and documentary evidence which clearly should have supported a judgment on the merits in

favor of the consortium. As the consortium correctly argued, the net atrocious effect of the Degional Trial

Court's ruling is that it allows a situation where a party litigant is forced to plead and prove compulsory

counterclaims only to be denied those counterclaims on account of the adverse party's failure to

prosecute his case. erily, the consortium had no alternative but to present its counterclaims in Civil

Case 4o. 2%$( since its counterclaims are compulsory in nature.

"n the second issue, the Court of Appeals opined that unless a writ of attachment is lifted by a special

order specifically providing for the discharge thereof, or unless a case has been finally dismissed

against the party in whose favor the attachment has been issued, the attachment lien subsists. 3hen

the consortium, therefore, too> an appeal from the Degional Trial Court's orders of +arch $%, &22 and

+ay $), &22, such appeal had the effect of preserving the consortium's attachment liens secured at

the inception of Civil Case 4o. 2%$(, invo>ing the rule in (lib v . %astoral,&22 CDA ;$ &22/ that

where the main action is appealed, the attachment issued in the said main case is also considered

appealed.

Anent the third issue, the compromise agreement between the consortium and Earcia dated &( #anuary

&2 did not result in the abandonment of its attachment lien over his properties. aid agreement was

approved by the Court of Appeals in a Desolution dated $$ +ay &2. The judgment based on the

compromise agreement had the effect of preserving the said attachment lien as security for the

satisfaction of said judgment citing *1 and transfer boo> in

order to bind third persons.

ection (d/, Dule %( of the Dules of Court was complied with by the consortium through the heriff of

the trial court/ when the notice of garnishment over the Chemphil shares of Earcia was served on the

president of Chemphil on #uly &, &2%. 7ndeed, to bind third persons, no law reuires that an

attachment of shares of stoc> be recorded in the stoc> and transfer boo> of a corporation. The

statement attributed by the Degional Trial Court to the upreme Court in Samaang $agsasa!a,

&nc .vs. )on*alo Cua )uan, E.D. 4o. F-($%$, 1ebruary $%, &%% unreported/, to the effect that 8as

between two attaching creditors, the one whose claim was registered first on the boo>s

corporation enjoys priority,8 is an obiter dictum that does not modify the procedure laid down in

(d/, Dule %( of the Dules of Court.

Therefore, ruled the Court of Appeals, the attachment made over the Chemphil shares in the n

Earcia on #uly &, &2% was made in accordance with law and the lien created thereby remaine

and subsisting at the time Earcia sold those shares to 1C7 predecessor-in-interest of appellee C

&22.

Anent the last issue, the Court of Appeals rejected C07C's subrogation theory based on Art. &5)

the 4ew Civil Code stating that the obligation to *TC was paid by Earcia himself and not by

party 1C7/.

The Court of Appeals further opined that while the chec> used to pay *TC was a 1C7 corporate

it was funds of Earcia in 1C7 that was used to pay off *TC. That the funds used to pay off *T

funds of Earcia has not been refuted by 1C7 or C07C. 7t is clear, therefore, that there was an atte

the part of Earcia to use 1C7 and C07C as convenient vehicles to deny the consortium its right t

itself whole through an execution sale of the Chemphil shares attached by the consortium

inception of Civil Case 4o. 2%$(. The consortium, therefore, is entitled to the issuance of the Ch

shares of stoc> in its favor. The Degional Trial Court's order of eptember 6, &2, should, there

reinstated in toto.

Accordingly, the uestion of whether or not the attachment lien in favor of *TC in the *TC

superior to the attachment lien in favor of the consortium in Civil Case 4o. 2%$( becomes imm

with respect to the right of intervenor-appellee C07C. The said issue would have been relev

C07C established its subrogation to the rights of *TC.

"n $; +arch &5, the Court of Appeals pecial 4inth @ivision/ in CA-E.D. 4o. ! $)6(6 ren

decision denying due course to and dismissing !C7*'s petition for certiorari on grounds tha

violated the rule against forum-shopping and that no grave abuse of discretion was commi

respondent Degional Trial Court in issuing its assailed orders dated & @ecember &2 and %

&). !C7*'s motion for reconsideration was denied on && #anuary &6. 37

"n ( #uly &5, the consortium, with the exception of !7", assigned without recourse all its rig

interests in the disputed shares to #aime EonHales. 3

"n 5 #anuary &6, C07C filed the instant petition for review doc>eted as E.D. 4os. &&$652-

assigned the following errorsB

7.

T


7/43

&/ 7n not holding that the Consortium's attachment over the disputed Chemphil shares did not vest any

priority right in its favor and cannot bind third parties since admittedly its attachment on & #uly &2%

was not recorded in the stoc> and transfer boo>s of Chemphil, and subordinate to the attachment of

*TC which *TC registered and annotated in the stoc> and transfer boo>s of Chemphil on $ #uly

&2%, and that the Consortium's attachment failed to comply with ec. (d/, Dule %( of the Dules as

evidenced by the notice of garnishment of the deputy sheriff of the trial court dated & #uly &2% annex

8@8/ which the sheriff served on a certain Thelly DuiH who was neither !resident nor managing agent of

Chemphil

$/ 7n not applying the case law enunciated by this s of the corporation enjoys priority, and which respondent Courterroneously characteriHed as mere obiter dictum

5/ 7n not holding that the dismissal of the appeal of the Consortium from the order of the trial court

dismissing its counterclaim against Antonio +. Earcia and the finality of the compromise agreement

which ended the litigation between the Consortium and Antonio +. Earcia in the Dynetics

case had ipso +ure discharged the Consortium's purported attachment over the disputed shares.

777.

T pursuant to the @eed of Absolute a

!urchase of hares of toc>, 41 1C7, and later C07C, was subrogated to the rights of *TC, par

to the latter's aforementioned attachment lien over the disputed shares.

C07C argues that *TC's attachment lien is superior as it was obtained on $ #uly &2%, ahead

consortium's purported attachment on & #uly &2%. +ore importantly, said C07C lien was duly re

in the stoc> and transfer boo>s of Chemphil.


8/43

C07C's subrogation theory is unavailing.

*y definition, subrogation is 8the transfer of all the rights of the creditor to a third person, who

substitutes him in all his rights. 7t may either be legal or conventional. Fegal subrogation is that which

ta>es place without agreement but by operation of law because of certain acts this is the subrogation

referred to in article &5)$. Conventional subrogation is that which ta>es place by agreement of the

parties . . .8 4*

C07C's theory is premised on Art. &5)$ $/ of the Civil Code which statesB

Art. &5)$. 7t is presumed that there is legal subrogationB

&/ 3hen a creditor pays another creditor who is preferred, even without the debtor's >nowledge

$/ 0en a tird person, not interested in te obligation, pays 1it te e2press or tacit approval of te

debtor

5/ 3hen, even without the >nowledge of the debtor, a person interested in the fulfillment of the

obligation pays, without prejudice to the effects of confusion as to the latter's share. 0mphasis ours./

@espite, however, its multitudinous arguments, C07C presents an erroneous interpretation of the

concept of subrogation. An analysis of the situations involved would reveal the clear inapplicability of

Art. &5)$ $/.

Antonio Earcia sold the disputed shares to 1C7 for a consideration of !(,$)(,55&.$2. 1C7, however,

did not pay the entire amount to Earcia as it was obligated to deliver part of the purchase price directly

to *TC pursuant to the following stipulation in the @eed of aleB

$anner of %ayment

%ayment of te %urcase %rice sall be made in accordance 1it te follo1ing order of

preferenceprovided that in no instance shall the total amount paid by the *uyer exceed the !urchase

!riceB

a. uyer sall pay directly to te Security an! and /rust Co. te amount determined by te Supreme

Court as due and o1ing in favor of te said ban! by te Seller .

The foregoing amount shall be paid within fifteen &%/ days from the date the decision of the upreme

Court in the case entitled 8Antonio +. Earcia, et al. vs. Court of Appeals, et al.8 E.D. 4os. 2$$2$-25

becomes final and executory. 43 0mphasis ours./

to *TC in the amount of !5%,6;$,2;.;$ to pay Earcia's

indebtedness to the said ban>, it was in effect paying with Earcia's money, no longer with its own,

because said amount was part of the purchase price which 1C7 o1ed Earcia in payment for the sale of

the disputed shares by the latter to the former. The money 8paid8 by 1C7 to *TC, thus properly

belonged to Earcia. 7t is as if Earcia himself paid his own debt to *TC but through a third party 1C7.

7t is, therefore, of no conseuence that what was used to pay *TC was a corporate chec> of 1C7. As

we have earlier stated, said chec> no longer represented 1C7 funds but Earcia's money, being as it was

part of 1C7's payment for the acuisition of the disputed shares. The 1C7 chec> should not be t

face value, the attendant circumstances must also be considered.

The aforeuoted contractual stipulation in the @eed of ale dated &% #uly &22 between Antonio

and 1C7 is nothing more but an arrangement for the sa>e of convenience. !ayment was to be e

in the aforesaid manner so as to prevent money from changing hands needlessly. *esides, t

purpose of Earcia in selling the disputed shares and his other properties was to 8settle certain ci

filed against him.8 44

ince the money used to discharge Earcia's debt rightfully belonged to him, 1C7 cannot be cons

a third party payor under Art. &5)$ $/. 7t was but a conduit, or as aptly categoriHed by respo

merely an agent as defined in Art. &2;2 of the Civil CodeB

Art. &2;2. *y the contract of agency a person binds himself to render some service or to do som

in representation or on behalf of another, with the consent or authority of the latter.

1C7 was merely fulfilling its obligation under the aforementioned @eed of ale.

Additionally, 1C7 is not a disinterested party as reuired by Art. &5)$ $/ since the benefits

extinguishment of the obligation would redound to none other but itself. 4+ !ayment of the judgme

to *TC resulted in the discharge of the attachment lien on the disputed shares purchased by 1

latter would then have a free and 8clean8 title to said shares.

7n sum, C07C, for its failure to fulfill the reuirements of Art. &5)$ $/, was not subrogated to the r

*TC against Antonio Earcia and did not acuire *TC's attachment lien over the disputed

which, in turn, had already been lifted or discharged upon satisfaction by Earcia, through 1C7

debt to the said ban>.

46

The rule laid down in the case of Samaang $agsasa!a, &nc . v . Cua )uan, 47 that as betwe

attaching creditors the one whose claim was registered ahead on the boo>s of the corporation

priority, clearly has no application in the case at bench. As we have amply discussed, since C0

not subrogated to *TC's right as attaching creditor, which right in turn, had already terminat

Earcia paid his debt to *TC, it cannot, therefore, be categoriHed as an attaching creditor in the p

controversy. C07C cannot resurrect and claim a right which no longer exists. The issue in the

case, then, is priority between an attaching creditor the consortium/ and a purchaser 1C7IC07C

disputed shares of stoc> and not between two attaching creditors the subject matter

aforestated amahang +agsasa>a case.

C07C, li>ewise, argues that the consortium's attachment lien over the disputed Chemphil sh

null and void and not binding on third parties due to the latter's failure to register said lien in the

and transfer boo>s of Chemphil as mandated by the rule laid down by the Samaang $ag

v . Cua )uan. 4

The attachment lien acuired by the consortium is valid and effective. *oth the Devised Dules o

and the Corporation Code do not reuire annotation in the corporation's stoc> and transfer boo>s

attachment of shares of stoc> to be valid and binding on the corporation and third party.


9/43

ection (6 of the Corporation Code which enumerates the instances where registration in the stoc> and

transfer boo>s of a corporation providesB

ec. (6. *oo>s to be >ept stoc> transfer agent.

xxx xxx xxx

Stoc! corporations must also !eep a boo! to be !no1n as te stoc! and transfer boo!, in 1ic must

be !ept a record of all stoc>s in the names of the stoc>holders alphabetically arranged the installments

paid and unpaid on all stoc> for which subscription has been made, and the date of payment of any

settlement a statement of every alienation, sale or transfer of stoc! made, te date tereof, and by and

to 1om made and such other entries as the by-laws may prescribe. The stoc> and transfer boo> shall

be >ept in the principal office of the corporation or in the office of its stoc> transfer agent and shall be

open for inspection by any director or stoc>holder of the corporation at reasonable hours on business

days. 0mphasis ours./

xxx xxx xxx

ection ;5 of the same Code statesB

ec. ;5. Certificate of stoc> and transfer of shares. The capital stoc> of stoc> corporations shall be

divided into shares for which certificates signed by the president or vice-president, countersigned by the

secretary or assistant secretary, and sealed with the seal of the corporation shall be issued in

accordance with the by-laws. Sares of stoc! so issued are personal property and may be transferred

by delivery of te certificate or certificates indorsed by te o1ner or is attorney3in3fact or oter person

legally autori*ed to ma!e te transfer . 4o transfer, o1ever, sall be valid, e2cept as bet1een te

parties, until te transfer is recorded in te boo!s of te corporation so as to so1 te names of te parties to te transaction, te date of te transfer, te number of te certificate or certificates and te

number of sares transferred .

4o shares of stoc> against which the corporation holds any unpaid claim shall be transferable in the

boo>s of the corporation. 0mphasis ours./

Are attachments of shares of stoc> included in the term 8transfer8 as provided in ec. ;5 of the

Corporation CodeO 3e rule in the negative. As succinctly declared in the case of $onserrat

v . Ceron, 49 8chattel mortgage over shares of stoc> need not be registered in the corporation's stoc> and

transfer boo> inasmuch as chattel mortgage over shares of stoc> does not involve a 8transfer of

shares,8 and that only absolute transfers of shares of stoc> are reuired to be recorded in the

corporation's stoc> and transfer boo> in order to have 8force and effect as against third persons.8

xxx xxx xxx

The word 8transferencia8 transfer/ is defined by the 8@iccionario de la Academia de la Fengua

Castellana8 as 8accion y efecto de transfeir8 the act and effect of transferring/ and the verb 8transferir8,

as 8ceder or renunciar en otro el derecho o dominio ue se tiene sobre una cosa, haciendole dueno de

ella8 to assign or waive the right in, or absolute ownership of, a thing in favor of another, ma>ing him

the owner thereof/.

7n the Faw @ictionary of 83ords and !hrases8, third series, volume (, p. %2;(, the word 8tran

defined as followsB

8Transfer8 means any act by which property of one person is vested in anothe r, and 8transfer of s

as used in Kniform toc> Transfer Act Comp. t. upp. ;)/, implies any means whereby one m

divested of and another acuire ownership of stoc>. 3allach vs. tein 94.#.:, &5; A., $), $&)./

xxx xxx xxx

7n the case of 4oble vs. -t . Smit 0olesale )rocery Co. &$( !ac., &6, &( 56 ">l., ;;$ 6;

94..:, 6%%/, cited in 3ords and !hrases, second series, vol. 6, p. (2, the following appearsB

A 8transfer8 is the act by which the owner of a thing delivers it to anothe r with the intent of passrights which he has in it to the latter, and a chattel mortgage is not within the meaning of such ter

xxx xxx xxx. +0

Although the +onserrat case refers to a chattel mortgage over shares of stoc>, the same

applied to the attachment of the disputed shares of stoc> in the present controversy si

attachment does not constitute an absolute conveyance of property but is primarily used as a me

seiHe the debtor's property in order to secure the debt or claim of the creditor in the even

judgment is rendered.8 +1

=nown commentators on the Corporation Code expound, thusB

xxx xxx xxx

hares of stoc> being personal property, may be the subject matter of pledge and chattel mouch collateral transfers are however not covered by the registration reuirement of ection ;5

our upreme Court has held that such provision applies only to absolute transfers thus, the reg

in the corporate boo>s of pledges and chattel mortgages of shares cannot have an

effect. +* 0mphasis ours./

xxx xxx xxx

The reuirement that the transfer shall be recorded in the boo>s of the corporation to be valid as

third persons has reference only to absolute transfers or absolute conveyance of the ownership

to a share.

Conseuently, the entry or notation on the boo>s of the corporation of pledges and chattel mo

on shares is not necessary to their validity although it is advisable to do so/ since they do not

absolute alienation of ownership of stoc> +onserrat vs. Ceron, %2 !hil. 6; 9&55: Chua E

amahang +agsasa>a, 7nc., ;$ !hil. 6($ 9&5%:./ To affect third persons, it is enough that the dadescription of the shares pledged appear in a public instrument. Art. $);, Civil Code./ 3ith res

a chattel mortgage constituted on shares of stoc>, what is necessary is its registration in the

+ortgage Degistry. Act 4o. &%)2 and Art. $&6), Civil Code./ +3


10/43

C07C's reliance on the amahang +agsasa>a case is misplaced. 4owhere in the said decision was it

categorically stated that annotation of the attachment in the corporate boo>s is mandatory for its validity

and for the purpose of giving notice to third persons.

The only basis, then, for petitioner C07C's claim is the @eed of ale under which it purchased the

disputed shares. 7t is, however, a settled rule that a purchaser of attached property acuires it subject to

an attachment legally and validly levied thereon. +4

"ur corollary inuiry is whether or not the consortium has indeed a prior valid and existing attachment

lien over the disputed shares.

Jaime )on*ales' 5Consortium's Claim

7s the consortium's attachment lien over the disputed shares validO

C07C vigorously argues that the consortium's writ of attachment over the disputed shares of Chemphil

is null and void, insisting as it does, that the notice of garnishment was not validly served on the

designated officers on & #uly &2%.

To support its contention, C07C presented the sheriff's notice of garnishment ++ dated & #uly &2%

which showed on its face that said notice was received by one Thelly DuiH who was neither the

president nor managing agent of Chemphil. 7t ma>es no difference, C07C further avers, that Thelly DuiH

was the secretary of the !resident of Chemphil, for under the above-uoted provision she is not among

the officers so authoriHed or designated to be served with the notice of garnishment.

3e cannot subscribe to such a narrow view of the rule on proper service of writs of attachment.

A secretary's major function is to assist his or her superior. control and custody of *1 has not nece

secured the claims of Doa and +endoHa. 7n the event that the receivership is terminated wit

claims not having been satisfied, the creditors may also find themselves without security therefo

civil action because of the dissolution of the attachment. This should not be permitted.

previously obtained the issuance of the writ in good faith, they should not be deprived of its prote

the rehabilitation plan does not succeed and the civil action is resumed.

xxx xxx xxx

As we ruled in )overnment of te %ilippine &slands v . $ercadoB

Attachment is in the nature of a proceeding in rem. 7t is against the particular property. The at

creditor thereby acuires specific lien upon the attached property which ripens into a judgment

the res when the order of sale is made. uch a proceeding is in effect a finding that the p

attached is an indebted thing and a virtual condemnation of it to pay the owner's debt. The law d

provide the length of time an attachment lien shall continue after the rendition of judgment, and

therefore necessarily continue until the debt is paid, or sale is had under execution issued

judgment or until judgment is satisfied, or the attachment discharged or vacated in some

provided by law.

7t has been held that the lien obtained by attachment stands upon as high euitable ground

mortgage lienB

The lien or security obtained by an attachment even before judgment, is a fixed and positive sec

specific lien, and, although whether it will ever be made available to the creditor depe


11/43


12/43

ing to enjoin the defendants Cler> of Court, et al. from lev

their properties in satisfaction of the said writ of execution. That case, however, was dismissed

!residing #udge Clarence illanueva in his "rder dated +arch &2, &5 x x x/.

Accordingly, the "ffice of the Cler> of Court, +TC, *aguio City, through heriff 777 3ilfredo +

proceeded to levy on the properties of the losing board members of *040C".Thus, a sale a

auction was set on #une &, &5, at &)B)) ocloc> in the morning in front of the *aguio City <

heriffs 4otice of ale dated +ay 6, &5 x x x/, of the properties of Abundio Awal and 4

Aliping9,: two of the losing members of the *oard of @irectors of *040C" in the aforementioned

Despondent claims in his comment x x x/ that *ranch (, motu proprio, dismissed Civil Case 4o

D for lac> of jurisdiction on +arch &2,&5, which dismissal was 9sic: became final due to respofailure to perfect an appeal therefrom which claim according to the complainant, constitute9s: de

misrepresentation, if not falsehood, because the respondent indeed interposed an appeal such

+ay &&, &5, the DTC ( of *aguio City transmitted the entire record of Civil Case 4o. $(52-D

Court of Appeals per certified machine copy of the letter transmittal of same date x x x/.

3hile respondent never essentially intended to assail the issuance by the 4FDC of the

0xecution x x x nor sought to undo it x x x/ the complaint in Civil Case 4o. $(52-D which he file

for the immediate issuance of a temporary restraining order andIor preliminary writ of injunc

defendants Cler> of Court and 0x-"fficio City heriff to cease and desist from enforcing the ex

and levy of the writ of execution issued by the 4FDC-CAD, pending resolution of the main action

court x x x/ which complainant li>ewise claims as an unprocedural maneuver to frustrate the ex

of the decision of the upreme Court in E.D. 4o. 2)() in complete disregard of settled jurispr

that regular courts have no jurisdiction to hear and decide uestions which arise and are incid

the enforcement of decisions, orders and awards rendered in labor cases citing the case of CanCA, & CDA ;((, a display of gross ignorance of the law.

"n +ay $;, &5, respondent again filed for Abundio Awal and 4icasio Aliping with the Degion

Court, *ranch , Fa Trinidad, *enguet, separate complaints for #udicial @eclaration of 1amily

Constituted, "pe Fege, and thus 0xempt from Fevy and 0xecution the subject properti

@amages, etc. doc>eted as Civil Cases 4os. 5-1-)6&6 x x x/ and 5-1-)6&% x x x/, wh

http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn1


13/43

essentially similar actions to enjoin the enforcement of the judgment rendered in 4FDC Case 4o. DA*-

&-)5&5-26. ewise a violation of respondents oath not to

sue on groundless suit since the said heriff was merely enforcing a writ of execution as part of his job.

Reomme!"to! o8 te I$(

As noted earlier, 7nvestigating Commissioner !laridel C. #ose recommended, and the 7*! *oard of

Eovernors concurred, that respondent be suspended from the bar for six months forB

&. 1alsehood, for stating in his comment before this Court that the order of the DTC dismissing the

complaint in Civil Case 4o. $(52-D was not appealed on time

$. 1ailure to comply with upreme Court Circular 4o. $2-& on forum shopping

Commissioner #ose ratiocinatedB

A cursory glance of sic/ x x x the complaint filed by the respondent in Civil Case 4o. $(52-D before the

DTC of *aguio City, which complaint was signed and verified under oath by the respondent, reveals that

it lac>s the certification reuired by upreme Court Circular 4o. $2-& which too> effect on #anuary &,

&$ to the effect that to the best of his >nowledge, no such action or proceeding is pending in the

upreme Court, Court of Appeals or different divisions thereof or any tribunal or agency. 7f there is any

other action pending, he must state the status of the same. 7f he should learn that a similar action or

proceeding has been filed or pending before the upreme Court, Court of Appeals or different divisions

thereof or any tribunal or agency9,: he should notify the court, tribunal or agency within five %/ daysfrom such notice.

Among the other penalties, the said circular further provides that the lawyer may also be subjected to

disciplinary proceedings for non-compliance thereof.

7n sum, it is clear that the respondent violated the provisions of Canon9s: &) and &$ of the Code of

!rofessional Desponsibility under which the lawyer owes candor, fairness and good faith to the court

and exert9s: every effort and consider9s: it his duty to assist in the speedy and efficient administration of

justice.9ed: the certification reu

upreme Court Circular 4o. $2-&.


14/43

The foregoing were substantially reproduced in Devised Circular 4o. $2-& of jurisdiction on +arch &2, &

having perfected an appeal on the dismissal, the order of dismissal became final under the D

days after its receipt by respondent on record, or before April ;, &5. o that today this ca

longer pending.

xxx.

7t should be noted that when Civil Case 4os. 5-1-)6&6 and 5-1-)6&% for family homes and da

were filed in the court below on +ay $;, &5, Civil Case 4". $5(2-D which seems to give basis

present Complaint was deemed terminated, there being no appeal formally ta>en and perfeaccordance with the Dules.

xxx.

http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn17http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn17http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn18http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn18http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn19http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn21http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn27http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn28http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn32http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn32http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn17http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn18http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn19http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn21http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn27http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn28http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn32


15/43

And that precisely was the primal reason why respondent decided not to appeal any further anymore

9sic: the order of dismissal for lac> of jurisdiction of the court below in Civil Case 4o. $(52, and let it be

deemed final by the Dules and jurisprudence. ewise true that he

had actually filed an appeal, and that this was perfected. 1alse then is his statement that no appeal was

perfected in the injunction suit. 3orse, he made the statement before this Court in order to exculpate

himself, though in vain, from the charge of forum shopping.

A lawyer must be a disciple of truth. Knder the Code of !rofessional Desponsibility, he owes candor,

fairness and good faith to the courts.ing or cancelling ... their licenses or perm

haw>ers or street vendors/ and threatening the physical demolition of their respective business s

the places specified in such licenses or permits. 1 They also sought a temporary restraining o

view of +ayor FopeH' actual threats of physical demolition of their respective small b

establishment at &$B)) noon today.8 This the Court granted on the same day. *

!etitioners claim to be five of about &5) 8licensed and duly authoriHed vendors of ... religious a

medicine herbs and plants around the Nuiapo Church, ... +anila,8 bringing suit 'for themselves

others similarly situated as themselves.8 3 They allege that their licenses 8were revo>ed or cance

respondent +ayor/ for reasons un>nown to them which is tantamount to deprivation of property

due process of laws,8 written notice of such cancellation having been served on them on or abo

5) actually +ay 5/, &2; that the revocation of their licenses was beyond respondent

competence, since ection &(& n/ of the Focal Eovernment Code *.!. *lg. 55(/ authoriHes th

only 8for violation of the law or ordinances or conditions upon which they have been granted 8

such violation had been committed by them 4 but this notwithstanding, respondent +ayor 8ha

http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn33http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn34http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn35http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn35http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn36http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn37http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn38http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn39http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn39http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn40http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn40http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn41http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn41http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn33http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn34http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn35http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn36http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn37http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn38http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn39http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn40http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/ac_4058.htm#_edn41


16/43

them/ an ultimatum of (B)) up to &$B)) o'cloc> in the afternoon8 of August %, &2;/ to vacate the

premises where their respective stalls are situated or suffer physical demolition thereof. +

7n the light of the facts disclosed by the pleadings 6 and at the hearing of the case on August &5, &2;,

the petition must be given short shrift.

The action must in the first place be abated on the ground of lis pendens, or more correctly, auter

action pendant pendency "f another action between the same parties for the same cause. 7

7t appears that on #uly (, &2; there was filed in the Degional Trial Court of +anila, doc>eted as Civil

Case 4o. 2;5;%;5, a special civil action of 8prohibition with preliminary injunction8 against Acting +anila

City +ayor Eemiliano FopeH, #r. 7t was filed by amahang =apatiran a reconsideration of or to appeal from the "rder of the Degion

Court in Civil Case 4o. 2;-5;%;5 promulgated on #uly &%, &2;, which dismissed the petitio

grounds which appear persuasive. 16

7t would seem that after the filing by Dosalina *uan and FiHa "campo president and press re

officer, respectively, of the Nuiapo Church vendors' association >nown as the Samaan/ of the

in this case, 8for themselves and all others similarly situated as themselves8 i.e., the mem

the Samaan> who are vendors in the area of Nuiapo Church/ they came to the belated that in

the pendency of the 7dentical action filed by them in the Degional Trial Court Case 4o. 2;-5;%;were vulnerable to the accusation of 8forum shopping,8 and thus amenable to its dire conseu

This explains the filing in this Court by their lawyers of a 8+A4710TAT7"4 37T< A117@A

37T


17/43

petition in this Court, August %, &2;, all licenses and permits having expired prior thereto. *0 This is

confirmed by the few receipts submitted by petitioners *1 which all set out expiry dates before August %,

&2;. The petitioners thus have no basis whatever to postulate a right to ply their trade in the Nuiapo

area or elsewhere. The argument that the non-renewal by the municipal authorities of their licenses was

in effect a cancellation or revocation thereof without cause is puerile.

1inally, the action for prohibition has become moot and academic by the occurrence of the acts sought

to be inhibited. The petitioners' permits and licenses have all expired hence, there can be no occasion

whatsoever to spea> of the inhibition of any revocation or cancellation thereof. And the 8physical

demolition of their respective business stalls8 has already been consummated.

3eted as Civ

4o. 25-&6%2,96: praying that the defendants therein be held jointly and severally liable to p

plaintiff actual and exemplary damages plus costs of suit. 7n a decision dated August &, &2%, t

court ordered the defendants therein jointly and severally to pay the !!A the amount of !&,)%5,

representing actual damages and the cost of suit. 9%:

The defendants appealed to the Court of Appeals and raised the following issuesB &/ 7s the pi

commercial vessel, under compulsory pilotage, solely liable for the damage caused by the vesse

pier, at the port of destination, for his negligenceO And $/ 3ould the owner of the vessel b

li>ewise if the damage is caused by the concurrent negligence of the master of vessel and t

under a compulsory pilotageO

As stated at the outset, respondent appellate court affirmed the findings of the court a ;uo exce

found no employer-employee relationship existing between herein private respondents +anil

Association +!A, for short/ and Capt. Eavino.9;: This being so, it ruled instead that the liability of

anchored, not on Article $&2) of the Civil Code, but on the provisions of Customs Administrative

4o. &%-;%,9(: and accordingly modified said decision of the trial court by holding +!A, along with

defendants therein, still solidarily liable to !!A but entitled +!A to reimbursement from Capt. Ea

http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn5http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn5http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn7


18/43

such amount of the adjudged pecuniary liability in excess of the amount euivalent to seventy-five

percent (%L/ of its prescribed reserve fund. 92:

4either 1ar 0astern hipping Co. briefly, 10C/ nor +!A was happy with the decision of the Court of

Appeals and both of them elevated their respective plaints to us via separate petitions for review

on certiorari .

7n E.D. 4o. &5));2, which was assigned to the econd @ivision of this Court, 10C imputed that the

Court of Appeals seriously erredB

&. in not holding enen C. Eavino and the +anila !ilots Association as the parties solely responsible for

the resulting damages sustained by the pier deliberately ignoring the established jurisprudence on the

matter.

$. in holding that the master had not exercised the reuired diligence demanded from him by the

circumstances at the time the incident happened

5. in affirming the amount of damages sustained by the respondent !hilippine !orts Authority despite a

strong and convincing evidence that the amount is clearly exorbitant and unreasonable

6. in not awarding any amount of counterclaim prayed for by the petitioner in its answer and

%. in not granting herein petitioner's claim against pilot enen C. Eavino and +anila !ilots' Association

in the event that it be held liable.9:

!etitioner asserts that since the + !AF"@AD was under compulsory pilotage at the time of the

incident, it was a compulsory pilot, Capt. Eavino, who was in command and had complete control in the

navigation and doc>ing of the vessel. 7t is the pilot who supersedes the master for the time being in thecommand and navigation of a ship and his orders must be obeyed in all respects connected with her

navigation. Conseuently, he was solely responsible for the damage caused upon the pier apron, and

not the owners of the vessel. 7t claims that the master of the boat did not commit any act of negligence

when he failed to countermand or overrule the orders of the pilot because he did not see any justifiable

reason to do so. 7n other words, the master cannot be faulted for relying absolutely on the competence

of the compulsory pilot. 7f the master does not observe that a compulsory pilot is incompetent or

physically incapacitated, the master is justified in relying on the pilot. 9&):

Despondent !!A, in its comment, predictably in full agreement with the ruling of respondent court on

the solidary liability of 10C, +!A and Capt. Eavino, stresses the concurrent negligence of Capt.

Eavino, the harbor pilot, and Capt. i>tor =aban>ov,Q shipmaster of + !avlodar, as the basis of their

solidary liability for damages sustained by !!A. 7t posits that the vessel was being piloted by Capt.

Eavino with Capt. =aban>ov beside him all the while on the bridge of the vessel, as the former too>

over the helm of + !avlodar when it rammed and damaged the apron of the pier of *erth 4o. 6 of the

+anila 7nternational !ort. Their concurrent negligence was the immediate and proximate cause of the

collision between the vessel and the pier - Capt. Eavino, for his negligence in the conduct of doc>ing

maneuvers for the safe berthing of the vessel and Capt. =aban>ov, for failing to countermand the

orders of the harbor pilot and to ta>e over and steer the vessel himself in the face of imminent danger,

as well as for merely relying on Capt. Eavino during the berthing procedure. 9&&:

"n the other hand, in E.D. 4o. &5)&%), originally assigned to the Court's 1irst @ivision an

transferred to the Third @ivision, +!A, now as petitioner in this case, avers the respondent

errors consisted in disregarding and misinterpreting Customs Administrative "rder 4o. &%-;%

limits the liability of +!A. aid pilots' association asseverates that it should not be held solidari

with Capt. Eavino who, as held by respondent court, is only a member, not an employee, thereo

being no employer-employee relationship, neither can +!A be held liable for any vicarious liab

the respective exercise of profession by its members nor be considered a joint tortfeasor as to

jointly and severally liable.9&$: 7t further argues that there was erroneous reliance on C

Administrative "rder 4o. &%-;% and the constitution and by-laws of +!A, instead of the provision

Civil Code on damages which, being a substantive law, is higher in category than the af

constitution and by-laws of a professional organiHation or an administrative order which be

provision classifying the nature of the liability of +!A for the negligence its member pilots. 9&5:

As for Capt. Eavino, counsel for +!A states that the former had retired from active pilotage s

since #uly $2, &6 and has ceased to be a member of petitioner pilots' association. nown.9&6:

10C's comment thereto relied on the competence of the Court of Appeals in construing provis

law or administrative orders as basis for ascertaining the liability of +!A, and expressed full acc

the appellate court's holding of solidary liability among itself, +!A and Capt. Eavino. 7t further av

the disputed provisions of Customs Administrative "rder 4o. &%-;% clearly established +!A's s

liability.9&%:

"n the other hand, public respondent !!A, li>ewise through representations by the olicitor E

assumes the same supportive stance it too> in E.D. 4o. &5));2 in declaring its total accord w

ruling of the Court of Appeals that +!A is solidarily liable with Capt. Eavino and 10C for dam

and in its application to the fullest extent of the provisions of Customs Administrative "rder 4o. &

relation to +!A's constitution and by-laws which spell out the conditions of and govern their res

liabilities. These provisions are clear and ambiguous as regards +!A's liability without n

interpretation or construction. Although Customs Administrative "rder 4o. &%-;% is a mere reg

issued by an administrative agency pursuant to delegated legislative authority to fix details to im

the law, it is legally binding and has the same statutory force as any valid statute. 9&;:

Kpon motion9&(: by 10C dated April $6, &2 in E.D. 4o. &5)&%), said case was consolidat

E.D. 4o. &5));2.9&2:

!refatorily, on matters of compliance with procedural reuirements, it must be mentioned t

conduct of the respective counsel for 10C and !!A leaves much to be desired, to the displeas

disappointment of this Court.

ection $, Dule 6$ of the &( Dules of Civil !rocedure 9&: incorporates the former Circular 4o

which provided for what has come to be >nown as the certification against forum shopping

additional reuisite for petitions filed with the upreme Court and the Court of Appeals, aside fr

other reuirements contained in pertinent provisions of the Dules of Court therefor, with the end

of preventing the filing of multiple complaints involving the same issues in the upreme Court, C

Appeals or different divisions thereof or any other tribunal or agency.

http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn10http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn11http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn17http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn18http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn19http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn10http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn11http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn17http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn18http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn19http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn20


19/43

+ore particularly, the second paragraph of ection $, Dule 6$ providesB

x x x x x x x x x

The petitioner shall also submit together with the petition a certification under oath that he has not

therefore commenced any other action involving the same issues in the upreme Court, the Court of

Appeals or different divisions thereof, or any other tribunal or agency if tere is suc oter action or

proceeding, e must state te status of te same> and if e sould tereafter learn tat a similar action

or proceeding as been filed or is pending before te Supreme Court, te Court of Appeals or different

divisions tereof, or any oter tribunal or agency, e underta!es to promptly inform te aforesaid courts

and oter tribunal or agency tereof 1itin five ?@= days terefrom. 7talics supplied./

1or petitions for review filed before the upreme Court, ection 6e/, Dule 6% specifically reuires thatsuch petition shall contain a sworn certification against forum shopping as provided in the last

paragraph of ection $, Dule 6$.

The records show that the law firm of @el Dosario and @el Dosario through its associate, Atty. now of any other pending action or claim filed or pen

underta>es to report such fact within five %/ days to this e to report the fact within five %/ days there

this ing was then or at any other time thereafter ever filed by 10C n

there any attempt to bring such matter to the attention of the Court. +oreover, it cannot feig

http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn21http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn21http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn21http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn26


20/43

>nowledge of the existence of such other petition because 10C itself filed the motion for consolidation

in E.D. 4o. &5)&%) of these two cases on April $6, &2.

7t is disturbing to note that counsel for 10C, the law firm of @el Dosario and @el Dosario, displays an

unprofessional tendency of ta>ing the Dules for granted, in this instance exemplified by its pro

forma compliance therewith but apparently without full comprehension of and with less than faithful

commitment to its underta>ings to this Court in the interest of just, speedy and orderly administration of

court proceedings.

As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court. 9$;: e the court itself, he is an instrument to

advance its ends -- the speedy, efficient, impartial, correct and inexpensive adjudication of cases and

the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but

should li>ewise avoid any unethical or improper practices that impede, obstruct or prevent their

realiHation, charged as he is with the primary tas> of assisting in the speedy and efficient administration

of justice.95$:

ad to say, the members of said law firm sorely failed to observe their duties as responsible members

of the *ar. Their actuations are indicative of their predisposition to ta>e lightly the avowed duties of

officers of the Court to promote respect for law and for legal processes.955: 3e cannot allow this state of

things to pass judicial muster.

7n view of the fact that at around the time these petitions were commenced, the &( Dules of Civil

!rocedure had just ta>en effect, the Court treated infractions of the new Dules then with relative

liberality in evaluating full compliance therewith. 4evertheless, it would do well to remind all concerned

that the penal provisions of Circular 4o. $2-& which remain operative provides, inter aliaB

5. %enalties.-

x x x x x x x x x

c/ The submission of a false certification under !ar. $ of the Circular shall li>ewise constitute contempt

of court, without prejudice to the filing of criminal action against the guilty party. The lawyer may also be

subjected to disciplinary proceedings.

7t must be stressed that the certification against forum shopping ordained under the Dules is to be

executed by the petitioner, and not by counsel. "bviously it is the petitioner, and not always the counsel

whose professional services have been retained for a particular case, who is in the best position to

>now whether he or it actually filed or caused the filing of a petition in that case. the "E an inordinat

almost unreasonably long period of time to file its comment, thus unduly delaying the resolution o

cases. 7t too> several changes of leadership in the "E -- from ilvestre eight 2/ motions for extension of time totaling $&) days, a warningfurther extensions shall be granted, and personal service on the olicitor Eeneral himself

resolution reuiring the filing of such comment before the "E indulged the Court with the long re

comment on #uly &), &2.95%: This, despite the fact that said office was reuired to file its comme

bac> on 4ovember &$, &(. 95;: A closer scrutiny of the records li>ewise indicates that petitione

was not even furnished a copy of said comment as reuired by ection %, Dule 6$. 7nstead,

thereof was inadvertently furnished to +!A which, from the point of view of E.D. 4o. &5));2,

non-party.95(: The "E fared slightly better in E.D. 4o. &5)&%) in that it too> only six ;/ extensio

total of &2) days, before the comment was finally filed.952: And while it properly furnished petition

with a copy of its comment, it would have been more desirable and expedient in this case t

furnished its therein co-respondent 10C with a copy thereof, if only as a matter of profe

courtesy.95:

This undeniably dilatory disinclination of the "E to seasonably file reuired pleadings con

deplorable disservice to the tax-paying public and can only be categoriHed as censurable inefficiethe part of the government law office. This is most certainly professionally unbecoming of the "

Another thing that baffles the Court is why the "E did not ta>e the initiative of filing a mo

consolidation in either E.D. 4o. &5));2 or E.D. 4o. &5)&%), considering its familiarity w

bac>ground of the case and if only to ma>e its job easier by having to prepare and file o

comment. 7t could not have been unaware of the pendency of one or the other petition because

http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn27http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn28http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn31http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn31http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn31http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn32http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn32http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn33http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn34http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn34http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn35http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn35http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn36http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn37http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn38http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn38http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn38http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn39http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn39http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn40http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn40http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn27http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn28http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn31http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn32http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn33http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn34http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn35http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn36http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn37http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn38http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn39http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn40


21/43

counsel for respondent in both cases, petitioner is reuired to furnish it with a copy of the petition under

pain of dismissal of the petition for failure otherwise. 96):

*esides, in E.D. &5));2, it prefaces its discussions thus --

7ncidentally, the +anila !ilots' Association +!A/, one of the defendants-appellants in the case before

the respondent Court of Appeals, has ta>en a separate appeal from the said decision to this eted as E.D. 4o. &5)&%) and entitled 8+anila !ilots' Association, !etitioner,

versus !hilippine !orts Authority and 1ar 0astern hipping Co., Despondents.96&:

imilarly, in E.D. 4o. &5)&%), it states -

7ncidentally, respondent 1ar 0astern hipping Co. 10C/ had also ta>en an appeal from the saiddecision to this eted as E.D. 4o. &5));2, entitled 81ar 0astern hipping Co. vs.

Court of Appeals and !hilippine !orts Authority.896$:

3e find here a lac>adaisical attitude and complacency on the part of the "E in the handling of its

cases and an almost reflexive propensity to move for countless extensions, as if to test the patience of

the Court, before favoring it with the timely submission of reuired pleadings.

7t must be emphasiHed that the Court can resolve cases only as fast as the respective parties in a case

file the necessary pleadings. The "E, be needlessly extending the pendency of these cases through

its numerous motions for extension, came very close to exhausting this Court's forbearance and has

regrettably fallen short of its duties as the !eople's Tribune.

The "E is reminded that just li>e other members of the *ar, the canons under the Code of

!rofessional Desponsibility apply with eual force on lawyers in government service in the discharge of

their official tas>s.965:

These ethical duties are rendered even more exacting as to them because, asgovernment counsel, they have the added duty to abide by the policy of the tate to promote a high

standard of ethics in public service.966: 1urthermore, it is incumbent upon the "E, as part of the

government bureaucracy, to perform and discharge its duties with the highest degree of

professionalism, intelligence and s>ill96%: and to extend prompt, courteous and adeuate service to the

public.96;:

4ow, on the merits of the case. After a judicious examination of the records of this case, the pleadings

filed, and the evidence presented by the parties in the two petitions, we find no cogent reason to

reverse and set aside the uestioned decision. 3hile not entirely a case of first impression, we shall

discuss the issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the matters

raised in both petitions beg for validation and updating of well worn maritime jurisprudence. Thereby, we

shall write finis to the endless finger-pointing in this shipping mishap which has been stretched beyond

the limits of judicial tolerance.

The !ort of +anila is within the +anila !ilotage @istrict which is under compulsory pilotage pursuant to

ection 2, Article 777 of !hilippine !orts Authority Administrative "rder 4o. )5-2%,96(: which provides thatB

0C. 2. Compulsory %ilotage Service.- 1or entering a harbor and anchoring thereat, or passing through

rivers or straits within a pilotage district, as well as doc>ing and undoc>ing at any pierIwharf, or shifting

from one berth or another, every vessel engaged in coastwise and foreign trade shall be

compulsory pilotage. x x x

7n case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot a

master have been specified by the same regulation in this wiseB

0C. &&. Control of vessels and liability for damage. - "n compulsory pilotage grounds, the

!ilot, providing the service to a vessel shall be responsible for the damage caused to a vessel o

and property at ports due to his negligence or fault.


22/43


23/43

CourtB

Gou have testified before that the reason why the vessel bumped the pier was because the anchor was

not released immediately or as soon as you have given the order. @o you remember having stated thatO

A Ges, your


24/43

Administrative "rder ;5-2%. !aragraph MMM7M of the Customs Administrative "rder 4o. &%-;% provides

that 8the pilot shall be held responsible for the direction of the vessel from the time he assumes control

thereof, until he leaves it anchored free from shoalB !rovided, that his responsibility shall cease at the

moment the master neglects or refuses/ to carry out his instructions.8 The overall direction regarding

the procedure for doc>ing and undoc>ing the vessel emanates from the harbor pilot. 7n the present

recourse, Eavino failed to live up to his responsibilities and exercise reasonable care or that degree of

care reuired by the exigencies of the occasion. 1ailure on his part to exercise the degree of care

demanded by the circumstances is negligence Reese versus %iladelpia 6 RR Co. 89 US :8, E

ed. 8B:, @ Am Jur. d 7age :7B /.9;(:

This affirms the findings of the trial court regarding Capt. Eavino's negligenceB

This discussion should not however, divert the court from the fact that negligence in manuevering the

vessel must be attributed to Capt. enen Eavino. eep between the

vessel and port in order to berth safely.9;2:

The negligence on the part of Capt. Eavino is evident but Capt. =aban>ov is no less responsible for the

allision. en. Thus, in particular, he is bound to see that there is sufficient watch on dec>, and that

the men are attentive to their duties, also that engines are stopped, towlines cast off, and the anchors

clear and ready to go at the pilot's order .9($:

A perusal of Capt. =aban>ov's testimony ma>es it apparent that he was remiss in the discharge of h is

duties as master of the ship, leaving the entire doc>ing procedure up to the pilot, instead of maintaining

watchful vigilance over this ris>y maneuverB

N 3ill you please tell us whether you have the right to intervene in doc>ing of your ship in the harborO

A 4o sir, 7 have no right to intervene in time of doc>ing, only in case there is imminent danger to the

vessel and to the pier.

N @id you ever intervene during the time that your ship was being doc>ed by Capt. EavinoO

A 4o sir, 7 did not intervene at the time when the pilot was doc>ing my ship.

N Kp to the time it was actually doc>ed at the pier, is that correct'O

A 4o sir, 7 did not intervene up to the very moment when the vessel was doc>ed.

x x x x x x x x x

Atty. @el Dosario to the witness/

N +r. 3itness, what happened, if any, or was there anything unusual that happened dur

doc>ingO

A Ges sir, our ship touched the pier and the pier was damaged.

Court to the witness/

N 3hen you said touched the pier, are you leading the court to understand that your ship bum

pierO

A 7 believe that my vessel only touched the pier but the impact was very wea>.

N @o you >now whether the pier was damaged as a result of that slight o r wea> impactO

A Ges sir, after the pier was damaged.

x x x x x x x x x

N *eing most concerned with the safety of your vessel, in the maneuvering of your vessel, to t

did you observe anything irregular in the maneuvering by Capt. Eavino at the time he was tcause the vessel to be doc>ed at the pierO

A Gou mean the action of Capt. Eavino or his conditionO

CourtB

N 4ot the actuation that conform to the safety maneuver of the ship to the harborO

A 4o sir, it was a usual doc>ing.

N *y that statement of yours, you are leading the court to understand that there was nothing irre

the doc>ing of the shipO

A Ges sir, during the initial period, of the doc>ing, there was nothing unusual that happened.

N 3hat about in the last portion of the doc>ing of the ship, was there anything unusual or abnormhappenedO

A 4one Gour eep or hold the v

N Gou want us to understand, +r. 3itness, that the dropping of the anchor of the vessel was not

http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn68http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn69http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn69http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn70http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn70http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn71http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn71http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn71http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn72http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn73http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn73http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn68http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn69http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn70http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn71http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn72http://sc.judiciary.gov.ph/jurisprudence/1998/oct1998/130068.htm#_edn73


25/43

A 7 don't >now the depth of this port but 7 thin>, if the anchor was dropped earlier and with more

shac>les, there could not have been an incident.

N o you could not precisely tell the court that the dropping of the anchor was timely because you are

not well aware of the seabed, is that correctO

A Ges sir, that, is right.

x x x x x x x x x

N Alright, Capt. =avan>ov, did you come to >now later whether the anchor held its ground so much so

that the vessel could not travelO

A 7t is difficult for me to say definitely. 7 believe that the anchor did not hold the ship.

N Gou mean you don't >now whether the anchor blades stuc> to the ground to stop the ship from further

movingO

A Ges sir, it is possible.

N 3hat is possibleO

A 7 thin>, the $ shac>les were not enough to hold the vessel.

N @id you >now that the $ shac>les were droppedO

A Ges sir, 7 >new that.

N 7f you >new that the shac>les were not enough to hold the ship, did you not ma>e any protest to the

pilotO

A 4o sir, after the incident, that was my assumption.

N @id you come to >now later whether that presumption is correctO

A 7 still do

cases canon 12 code of professional responsibility

Documents