8/3/2019 part II. (B.)

1/53

.R. No. L-15652 December 14, 1920

THE YNCHAUSTI STEAMSHIP COMPANY,petitioner,vs.I. B. DEXTER, as Auditor of the Philippine Islands, and C. E. UNSON, as ActingPurchasing Agent of the Philippine Islands, respondents.

Cohn & Fisher for petitioner. Attorney-General Paredes and Assistant Attorney-General A. Santos for respondents.

STREET, J.:

This a petition for a writ of mandamus filed in this court of the Ynchausti SteamshipCompany to compel the Purchasing Agent of the Philippine Islands and the Insular Auditor to sign, countersign, and deliver to the petitioner a warrant upon the Treasurer of thePhilippine Islands for the sum of P82.79 in satisfaction of a claim for that amount, which isalleged to be due the petitioner as a common carrier for freight earned in transporting for the Government two distinct consignments of mineral oil from Manila to two other ports inthe Philippine Islands. After the defendants had duly answered, denying all the allegationsof the petition except such as relate to the character and places of residence of the partiesto the petition (which are admitted) the controversy was submitted for determination by thiscourt upon an agreed statement of facts as follows:

On July 23, 1918, the Government of the Philippine Islands, acting by andthrough the respondent Insular Purchasing Agent, employed the services of thepetitioner, Ynchausti Steamship Co., a common carrier, for the transportation, onboard the steamship Venus , from the port of Manila to the port of Aparri,Cagayan, of a consignment of merchandise, consisting of thirty (30) cases of "White Rose" mineral oil of two five-gallon cans to the case; and on September 18, 1918, the said Government likewise employed the services of petitioner for the transportation on board the steamship Venus , from Manila to Aparri,Cagayan, of ninety-six cases of "Cock" Brand mineral oil, ten gallons to the case.The goods were delivered by the shipper to the carrier, which accordinglyreceived them, and to evidence the contract of transportation, the parties dulyexecuted and delivered what is popularly called the Government bill of lading(General Form 9-A), hereto attached, marked Exhibit A and made a part hereof,wherein and whereby it was stipulated that the carrier, the petitioner Ynchausti &Co., received the above-mentioned supplies in apparent good condition,obligating itself to carry said supplies to the place agreed upon, in accordancewith the authorized and prescribed rates and classifications, and subject to thelaw of common carriers in force on the date of the shipment, and to theconditions prescribed by the Insular Collector of Customs in Philippine MarineRegulations at page 16 under the heading of "Bill of Lading Conditions," heretoattached, marked Exhibit B and made a part hereof.

Upon the delivery of the said shipment of "Cock" brand oil and consignee claimedthat one case was delivered empty , and noted such claim upon the bill of lading;and upon the delivery of the said shipment of "White Rose," brand oil theconsignee claimed that one case was delivered empty , and noted said claimupon the bill of lading.

Thereafter, notwithstanding the protestations of the petitioner, YnchaustiSteamship Co., that said shortages were due to causes entirely unknown to it,and were not due to any fault or negligence on its part, or on the part of itsagents or servants, the Acting Insular Purchasing Agent of the Philippine Islandsnotified the petitioners herein that after due investigation the Insular Auditor found and decided that the leakages of the two whole cases were due to itsnegligence and that the deduction of the sum of P22.53, the invoice value of thegoods lost, and held by the Auditor to be the true value thereof had beenauthorized by the said Insular Auditor.

Petitioner thereupon protested against the threatened deduction, and demandedthat it be paid the full amount due for the transportation of the two said shipmentsof merchandise, to wit, the sum of P82.79, as shown by its transportationvoucher presented in this cause, hereto attached. marked Exhibit C and made apart hereof.

Thereafter, notwithstanding the protest and demand of the petitioner asaforesaid, the Insular Auditor, in conformity with his ruling, declined and stilldeclines to issue to the petitioner a warrant for the full sum of P82.79, and hastendered to it a warrant for the sum of P60.26, which the petitioner has refused toaccept. lawphi1.net

The sum of P22.53 authorized to be deducted by the Insular Auditor, as appearsherein, has not at any time been liquidated by consent, agreement, or by the

judgment of any court of competent jurisdiction.

Upon a perusal of the foregoing agreed statement it will be seen that the present litigationhad its origin in a situation practically identical with that considered by this court inCompaia General de Tabacos vs. French and Unson (39 Phil., 34). It will be noted,however, that the case mentioned was decided upon demurrer, while the one now beforeus is to be heard and determined upon the petition, answer, and the admitted facts.

We note that in this case, as in the case of Compaia General de Tabacos vs. French andUnson ( supra ), the petition alleges that the leakage of the lost gasoline was due to causesunknown to the petitioner and was not due to any fault or negligence of petitioner, itsagents, or servants. The respondents, by demurring to the petition in the earlier case,

admitted that allegation. In the case now before us that allegation is put in issue, and wefind nothing in the admitted statement of facts to support it. It results that if that allegation ismaterial to the relief here sought, the petition must fail.

We are of the opinion that the allegation in question is material and that the belief sought inthis case cannot be granted.

In section 646 of the Administrative Code it is provided that when Government property istransmitted from one place to another by carrier, it shall be upon proper bill of lading, or receipt, from such carrier, and it shall be the duty of the consignee, or his representative, tomake full notation of any evidence of loss, shortage, or damage, upon the bill of lading, or receipt, before accomplishing it. It is admitted by the petitioner in the agreed statement of facts that the consignee, at the time the oil was delivered, noted the loss in the presentcase upon the two respective bills of lading. The notation of these losses by the consignee,in obedience to the precept of section 646 of the Administrative Code, is competentevidence to show that the shortage in fact existed. As the petitioner admits that the oil was

8/3/2019 part II. (B.)

2/53

received by it for carriage and inasmuch as the fact of loss is proved in the manner juststated, it results that there is a presumption that the petitioner was to blame for the loss;and it was incumbent upon the petitioner in order to entitle it to relief in the case to rebutthat presumption by proving, as is alleged in the petition, that the loss was not due to anyfault or negligence of the petitioner.

The mere proof of delivery of goods in good order to a carrier, and of their arrival at theplace of destination in bad order, makes out a prima facie case against the carrier, so thatif no explanation is given as to how the injury occurred, the carrier must be heldresponsible. (4 R. C. L., p. 917.) It is incumbent upon the carrier to prove that the loss wasdue to accident or some other circumstance inconsistent with its liability. (Articles361-363, Code of Commerce.) Indeed, if the Government of the Philippine Islands hadinstituted an action in a court of law against the petitioner to recover the value of the oil lostwhile these consignments were in the court of transportation, it would, upon the factsappearing before us, have been entitled to judgment.

From this it is apparent that the mandamus prayed for cannot be granted. It is a rule of universal application that a petition for extraordinary relief of the character here soughtmust show merit. That is, the petitioner's right to relief must be clear. Such cannot be saidto be the case where, as here, a presumption of responsibility on the part of the petitioner stands unrefuted upon the record.

We are of the opinion that, in the absence of proof showing that the carrier was not at faultin respect to the matter under discussion, the Insular Auditor was entitled to withhold, fromthe amount admittedly due to the petitioner for the freight charges, a sum sufficient tocover the value of the oil lost in transit.

The petition will be dismissed, with costs against the petitioner. So ordered.

Mapa, C.J., Araullo, Avancea, and Villamor, JJ., concur.Malcolm, J., concurs in the result.

8/3/2019 part II. (B.)

3/53

G.R. No. L-29721 March 27, 1929

AMANDO MIRASOL,plaintiff-appellant,vs.THE ROBERT DOLLAR CO.,defendant-appellant.

Vicente Hilado for plaintiff-appellant.J.A. Wolfson for defendant-appellant.

STATEMENT

After the promulgation of the decision rendered by the Second Division of February 13,1929, 1 the defendant filed a motion to have the case heard and decided in banc, andinasmuch as the legal questions involved are important to the shipping interests, the courtthought it best to do so.

After the formal pleas, plaintiff alleges that he is the owner and consignee of two cases of books, shipped in good order and condition at New York, U.S.A., on board the defendant'ssteamship President Garfield , for transport and delivery to the plaintiff in the City of Manila,

all freight charges paid. That the two cases arrived in Manila on September 1, 1927, in badorder and damaged condition, resulting in the total loss of one case and a partial loss of the other. That the loss in one case is P1,630, and the other P700, for which he filed hisclaims, and defendant has refused and neglected to pay, giving as its reason that thedamage in question "was caused by sea water." That plaintiff never entered into anycontract with the defendant limiting defendant's liability as a common carrier, and when hewrote the letter of September 3, 1927, he had not then ascertained the contents of thedamaged case, and could not determine their value. That he never intended to ratify or confirm any agreement to limit the liability of the defendant. That on September 9, 1927,when the other case was found, plaintiff filed a claim for the real damage of the bookstherein named in the sum of $375.

Plaintiff prays for corresponding judgment, with legal interest from the filing of thecomplaint and costs.

For answer the defendant made a general and specific denial, and as a separate andspecial defense alleges that the steamship President Garfield at all the times alleged wasin all respects seaworthy and properly manned, equipped and supplied, and fit for thevoyage. That the damage to plaintiff's merchandise, if any, was not caused through thenegligence of the vessel, its master, agent, officers, crew, tackle or appurtenances, nor byreason of the vessel being unseaworthy or improperly manned, "but that such damage, if any, resulted from faults or errors in navigation or in the management of said vessel." As asecond separate and special defense, defendant alleges that in the bill of lading issued bythe defendant to plaintiff, it was agreed in writing that defendant should not be "held liablefor any loss of, or damage to, any of said merchandise resulting from any of the followingcauses, to wit: Acts of God, perils of the sea or other waters," and that plaintiff's damage, if any, was caused by "Acts of God" or "perils of the sea." As a third special defense,defendant quoted clause 13 of the bill of lading, in which it is stated that in no case shall itbe held liable "for or in respect to said merchandise or property beyond the sum of twohundred and fifty dollars for any piece, package or any article not enclosed in a package,

unless a higher value is stated herein and ad valorem freight paid or assessed thereon,"and that there was no other agreement. That no September 3, 1927 the plaintiff wrote thedefendant a letter as follows:

Therefore, I wish to file claim of damage to the meager maximum value that your bills of lading will indemnify me, that is $250 as per condition 13.

As a fourth special defense, defendant alleges that the damage, if any, was caused by"sea water," and that the bill of lading exempts defendant from liability for that cause. That

damage by "sea water" is a shipper's risk, and that defendant is not liable.

As a result of the trial upon such issues, the lower court rendered judgment for the plaintiff for P2,080, with legal interest thereon from the date of the final judgment, with costs, fromwhich both parties appealed, and the plaintiff assigns the following errors:

I. The lower court erred in holding that plaintiff's damage on account of the loss of the damaged books in the partially damaged case can be compensated with anindemnity of P450 instead of P750 as claimed by plaintiff.

II. The lower court, consequently, also erred in giving judgment for plaintiff for only P2,080 instead of P2,380.

III. The lower court erred in not sentencing defendant to pay legal interest on theamount of the judgment, at least, from the date of the rendition of said judgment,namely, January 30, 1928.

The defendant assigns the following errors:

I. The lower court erred in failing to recognize the validity of the limited liabilityclause of the bill of lading, Exhibit 2.

II. The lower court erred in holding defendant liable in any amount and in failingto hold, after its finding as a fact that the damage was caused by sea water, thatthe defendant is not liable for such damage by sea water.

III. The lower court erred in awarding damages in favor of plaintiff and againstdefendant for P2,080 or in any other amount, and in admitting, over objection,Exhibits G, H, I and J.

JOHNS, J.:

Plaintiff's contention that he is entitled to P700 for his Encyclopedia Britannica is nottenable. The evidence shows that the P400 that the court allowed, he could buy a new setwhich could contain all of the material and the subject matter of the one which he lost.Plaintiff's third assignment of error is well taken, as under all of the authorities, he isentitled to legal interest from the date of his judgement rendered in the lower court and notthe date when it becomes final. The lower court found that plaintiff's damage was P2,080,

and that finding is sustained by that evidence. There was a total loss of one case and apartial loss of the other, and in the very nature of the things, plaintiff could not prove his

8/3/2019 part II. (B.)

4/53

loss in any other way or manner that he did prove it, and the trial court who heard himtestify must have been convinced of the truth of his testimony.

There is no claim or pretense that the plaintiff signed the bill of lading or that he knew of hiscontents at the time that it was issued. In that situation he was not legally bound by theclause which purports to limit defendant's liability. That question was squarely met anddecided by this court in banc in Juan Ysmael and Co., vs. Gabino Baretto and Co., (51Phil., 90; see numerous authorities there cited).

Among such authorities in the case of The Kengsington decided by the Supreme Court of the U.S. January 6, 1902 (46 Law. Ed., 190), in which the opinion was written by the lateChief Justice White, the syllabus of which is as follows:

1. Restrictions of the liability of a steamship company for its own negligence or failure of duty toward the passenger, being against the public policy enforced bythe courts of the United States, will not to be upheld, though the ticket was issuedand accepted in a foreign country and contained a condition making it subject tothe law thereof, which sustained such stipulation.

2. The stipulation in a steamship passenger's ticket, which compels him to valuehis baggage, at a certain sum, far less than it is worth, or, in order to have ahigher value put upon it, to subject it to the provisions of the Harter Act, by whichthe carrier would be exempted from all the liability therefore from errors innavigation or management of the vessel of other negligence is unreasonable andin conflict with public policy.

3. An arbitrary limitation of 250 francs for the baggage of any steamshippassenger unaccompanied by any right to increase the amount of adequate andreasonable proportional payment, is void as against public policy.

Both the facts upon which it is based and the legal principles involved are square in pointin this case.

The defendant having received the two boxes in good condition, its legal duty was todeliver them to the plaintiff in the same condition in which it received them. From the time

of their delivery to the defendant in New York until they are delivered to the plaintiff inManila, the boxes were under the control and supervision of the defendant and beyond thecontrol of the plaintiff. The defendant having admitted that the boxes were damaged whilein transit and in its possession, the burden of proof then shifted, and it devolved upon thedefendant to both allege and prove that the damage was caused by reason of some factwhich exempted it from liability. As to how the boxes were damaged, when or where, wasa matter peculiarly and exclusively within the knowledge of the defendant and in the verynature of things could not be in the knowledge of the plaintiff. To require the plaintiff toprove as to when and how the damage was caused would force him to call and rely uponthe employees of the defendant's ship, which in legal effect would be to say that he couldnot recover any damage for any reason. That is not the law.

Shippers who are forced to ship goods on an ocean liner or any other ship have somelegal rights, and when goods are delivered on board ship in good order and condition, and

the shipowner delivers them to the shipper in bad order and condition, it then devolvesupon the shipowner to both allege and prove that the goods were damaged by the reason

of some fact which legally exempts him from liability; otherwise, the shipper would be leftwithout any redress, no matter what may have caused the damage.

The lower court in its opinion says:

The defendant has not even attempted to prove that the two cases were wet withsea water by fictitious event, force majeure or nature and defect of the thingsthemselves. Consequently, it must be presumed that it was by causes entirelydistinct and in no manner imputable to the plaintiff, and of which the steamer

President Garfield or any of its crew could not have been entirely unaware.

And the evidence for the defendant shows that the damage was largely caused by "seawater," from which it contends that it is exempt under the provisions of its bill of lading andthe provisions of the article 361 of the Code of Commerce, which is as follows:

Merchandise shall be transported at the risk and venture of the shipper, if thecontrary was not expressly stipulated.

Therefore, all damages and impairment suffered by the goods during thetransportation, by reason of accident, force majeure, or by virtue of the nature or defect of the articles, shall be for the account and risk of the shipper.

The proof of these accidents is incumbent on the carrier.

In the final analysis, the cases were received by the defendant in New York in good order and condition, and when they arrived in Manila, they were in bad condition, and one was atotal loss. The fact that the cases were damaged by "sea water," standing alone and withinitself, is not evidence that they were damaged by force majeure or for a cause beyond thedefendant's control. The words "perils of the sea," as stated in defendant's brief apply to"all kinds of marine casualties, such as shipwreck, foundering, stranding," and amongother things, it is said: "Tempest, rocks, shoals, icebergs and other obstacles are within theexpression," and "where the peril is the proximate cause of the loss, the shipowner isexcused." "Something fortuitous and out of the ordinary course is involved in both words'peril' or 'accident'."

Defendant also cites and relies on the case of Government of the Philippine Islands vs.Ynchausti & Company (40 Phil., 219), but it appears from a reading of that case that thefacts are very different and, hence, it is not in point. In the instant case, there is no claim or pretense that the two cases were not in good order when received on board the ship, and itis admitted that they were in bad order on their arrival at Manila. Hence, they must havebeen damaged in transit. In the very nature of things, if they were damaged by reason of atempest, rocks, icebergs, foundering, stranding or the perils of the sea, that would be amatter exclusively within the knowledge of the officers of defendant's ship, and in the verynature of things would not be within plaintiff's knowledge, and upon all of such questions,there is a failure of proof.

The judgment of the lower court will be modified, so as to give the plaintiff legal interest onthe amount of his judgment from the date of its rendition in the lower court, and in allrespects affirmed, with costs. So ordered.

8/3/2019 part II. (B.)

5/53

Johnson, Malcolm, Ostrand, Romualdez, and Villa-Real, JJ., concur.

Separate Opinions

STREET, J., dissenting in part:

I gave a hesitating adherence to the decision of this case in division, and upon further reflection, I am now constrained to record my belief that the decision is in part erroneous. Iagree with the court that the defendant is liable to the plaintiff, but I think that its liability islimited, under clause 13, printed on the back of the bill of lading, to the amount of 250dollars for each of the two boxes of books comprising this consignment. While the lawdoes not permit a carrier gratuitously to exempt itself from liability for the negligence of itsservants, it cannot effectually do so for a valuable consideration; and where freight ratesare adjusted upon the basis of a reasonable limited value per package, where a higher value is not declared by the shipper, the limitation as to the value is binding. This court intwo well considered decisions has heretofore upheld a limitation of exactly the character of that indicated in clause 13 (H.E. Heacock Co. vs. Macondray & Co., 42 Phil., 205; Freixas& Co. vs. Pacific Mail Steamship Co., 42 Phil., 198); and I am unable to see any sufficientreason for ignoring those decisions.

8/3/2019 part II. (B.)

6/53

G.R. No. L-6092 March 8, 1912

TAN CHIONG SIAN,plaintiff-appellee,vs.INCHAUSTI AND CO.,defendant-appellant.

Haussermann, Cohn and Fisher for appellant.O'Brien and DeWitt for appellee.

TORRES, J. :

This is an appeal through bill of exceptions, by counsel for the firm of Inchausti & Co., froma judgment rendered by the Honorable A.S. Crossfield, judge.

On January 11, 1909, the Chinaman, Tan Chiong Sian or Tan Chinto, filed a writtencomplaint, which was amended on the 28th of the same month and again amended onOctober 27 of the same year, against the said firm, wherein he alleged, among other things, as a cause of action: That, on or about November 25, 1908, the plaintiff delivered tothe defendant 205 bundles or cases of general merchandise belonging to him, which

Inchausti & Co., upon receiving, bound themselves to deliver in the pueblo of Catarman,Province of Samar, to the Chinaman, Ong Bieng Sip, and in consideration of theobligations contracted by the defendant party, the plaintiff obligated himself to pay to thelatter the sum of P250 Philippine currency, which payment should be made upon thedelivery of the said merchandise in the said pueblo Catarman; but that the defendantcompany neither carried nor delivered the aforementioned merchandise to the said OngBieng Sip, in Catarman, but unjustly and negligently failed to do so, with the result that thesaid merchandise was almost totally lost; that, had the defendant party complied well andfaithfully with its obligation, according to the agreement made, the merchandise concernedwould have a value of P20,000 in the said pueblo of Catarman on the date when it shouldhave been delivered there, wherefore the defendant party owed the plaintiff the said sumof P20,000, which it had not paid him, or any part thereof, notwithstanding the manydemands of the plaintiff; therefore the latter prayed for judgment against the defendant for the said sum, together with legal interest thereon from November 25, 1908, and the costs

of the suit.

Counsel for the defendant company, in his answer, set forth, that he admitted theallegations of paragraphs 1 and 2 of the complaint, amended for the second time, anddenied those paragraphs 3, 4, 5, 6 and 7 of the same. As his first special defense, healleged that on or about November 28, 1908, his client, the said firm, received in Manilafrom Ong Bieng Sip 205 bundles, bales, or cases of merchandise to be placed on boardthe steamer Sorsogon , belonging to the defendant, for shipment to the port of Gubat,Province of Sorsogon, to be in the said port transshipped into another of the defendant'svessels for transportation to the port of Catarman, Samar, and delivered to the aforesaidChinaman, Ong Bieng Sip; that the defendant company, upon receiving the saidmerchandise from the latter, Ong Bieng Sip, and on its entering into a contract of maritimetransportation with him did not know and was not notified that the plaintiff, Tan ChiongSian, had any interest whatever in the said merchandise and had made with the plaintiff no

contract relative to the transportation of such goods, for, on receiving the latter from thesaid Ong Bieng Sip, for transportation, there were made out and delivered to him three bills

of lading, Nos. 38, 39 and 76, which contained a list of the goods received and, printed onthe back thereof were the terms of the maritime transportation contract entered into by andbetween the plaintiff and the defendant company, copies of which bills of lading andcontract, marked as Exhibits A, B, and C, are of record, attached to and made an integralpart of the said answer; that Ong Bieng Sip accepted the said bills of lading and thecontract extended on the backs thereof; that the merchandise mentioned was put on boardthe steamer Sorsogon and carried to the port of Gubat, Province of Sorsogon, where thisvessel arrived on November 28, 1908, on which date the lorcha Pilar , into which the saidmerchandise was to be transshipped for carriage to Catarman, was not at Gubat, andtherefore the goods had to be unloaded and stored in the defendant company's

warehouses at Gubat; that, on the 4th of December of the same year, the lorcha Pilar arrived at Gubat and, after the termination of certain necessary work, the goods receivedfrom Chinaman, Ong Bieng Sip, were taken aboard the same, together with other merchandise belonging to the defendant party, for the purpose of transportation to the portof Catarman; that, before the said lorcha could leave for its destination, a strong windarose which in the course of the day increased in force until, early in the morning of thefollowing day, the lorcha was dragged and driven, by the force of the storm, upon theshore, despite the means employed by the crew to avoid the accident, and notwithstandingthe five anchors that held the craft, which was thus wrecked and completely destroyed andthe merchandise with which it was laden, including the 205 bundles or packages takenaboard for the said Chinaman, was scattered on the shore; that, on the occasion, thelorcha Pilar was in good condition, provided with all the proper and necessary equipmentand accessories and carried a crew of sufficient number in command of a skillful patron or master, wherefore the wreck of the said craft was solely due to the irresistible force of the

elements and of the storm which drove it upon the shore; that the defendant company, withthe greatest possible diligence, gathered up the said shipwrecked goods that had beenshipped by the Chinaman, Ong Bieng Sip, but, owing to the damage they had suffered, itwas impossible to preserve them, so, after having offered to deliver them to him, thedefendant proceeded, in the presence of a notary, to sell them at public auction andrealized from the sale thereof P1,693.67, the reasonable value of the same in the conditionin which they were after they had been gathered up and salved from the wreck of thelorcha Pilar ; that the expenses occasioned by such salvage and sale of the said goodsamounted to P151.35, which were paid by the defendant party; that the latter offered to theChinese shipper, the plaintiff, the amount realized from the sale of the said merchandise,less P151.35, the amount of the expenses, and the sum of P250, the amount of the freightstipulated, and is still willing to pay such products of the said sale to the aforementionedOng Bieng Sip or to any other person who should establish his subrogation to the rights of the Chinaman, Ong Bieng Sip, with respect to the said amount; that, as his client's second

special defense, the defendant company alleged that one of the conditions of the shippingcontract executed between it and the Chinaman, Ong Bieng Sip, relative to thetransportation of the said merchandise, was that the said firm should not be held liable for more than P25 for any bundle or package, unless the value of its contents should be statedin the bill of lading, and that the shipper, Chinaman, Ong Bieng Sip, did not state in the billof lading the value of any of the bundles or packages in which the goods shipped by himwere packed. Counsel for the defendant company, therefore, prayed the court to absolvehis client from the complaint, with costs against the plaintiff.

After the hearing of the case and the introduction of testimony by the parties, judgmentwas rendered, on March 18, 1910, in favor of the plaintiff, Tan Chiong Sian or Tan Chinto,against the defendant Inchausti and Co., for the sum of P14,642.63, with interest at therate of 6 per cent per annum from January 11, 1909, and for the costs of the trial. Thedefendant party appealed from this judgment.

8/3/2019 part II. (B.)

7/53

This suit was brought for the purpose of collecting a certain sum which it is alleged thedefendant firm owes the plaintiff for losses and damages suffered by the latter as a resultof the former's noncompliance with the terms of an agreement or contract to transportcertain merchandise by sea from this city to the pueblo of Catarman, Island of Samar, for the sum of P250.

The principal question to be determined is whether the defendant is liable for the loss of the merchandise and for failure to deliver the same at the place of destination, or whether he is relieved from responsibility on the ground of force majeure .

Article 1601 of the Civil Code prescribes:

Carriers of goods by land or by water shall be subject with regard to the keepingand preservation of the things entrusted to them, to the same obligations asdetermined for innkeepers by articles 1783 and 1784.

The provisions of this article shall be understood without prejudice to what isprescribed by the Code of Commerce with regard to transportation by sea andland.

Article 1602 reads:

Carriers are also liable for the loss of and damage to the things which theyreceive, unless they prove that the loss or damage arose from a fortuitous eventor force majeure .

The articles aforecited are as follows:

ART. 1783. The depositum of goods made by travelers in inns or hostelries shallalso be considered a necessary one. The keepers of inns and hostelries areliable for them as such bailees, provided that notice thereof may have been givento them or to their employees, and that the travelers on their part take theprecautions which said innkeepers or their substitutes may have advised themconcerning the care and vigilance of said goods.

ART. 1784. The liability referred to in the preceding article shall include damagesto the goods of the travelers caused the servants or employees of the keepers for inns or hostelries as well as by strangers, but not those arising from robbery or which may be caused by any other case of force majeure .

Article 361 of the Code of Commerce provides:

Merchandise shall be transported at the risk and venture of the shipper, unlessthe contrary was expressly stipulated.

Therefore, all damages and impairment suffered by the goods in transportation,by reason of accident, force majeure , or by virtue of the nature or defect of thearticles, shall be for the account and risk of the shipper.

The proof of these accidents in incumbent on the carrier.

ART. 362. The carrier, however, shall be liable for the losses and damagesarising from the causes mentioned in the foregoing article if it is proved that theyoccurred on account of his negligence or because he did not take theprecautions usually adopted by careful persons, unless the shipper committedfraud in the bill of lading, stating that the goods were of a class or quality differentfrom what they really were.

If, notwithstanding the precaution referred to in this article, the goods transportedrun the risk of being lost on account of the nature or by reason of an unavoidableaccident, without there being time for the owners of the same to dispose thereof,the carrier shall proceed to their sale, placing them for this purpose at thedisposal of the judicial authority or of the officials determined by specialprovisions.

ART. 363. With the exception of the cases prescribed in the second paragraph of article 361, the carrier shall be obliged to deliver the goods transported in thesame condition in which, according to the bill of lading, they were at the time of their receipt, without any detriment or impairment, and should he not do so, heshall be obliged to pay the value of the goods not delivered at the point wherethey should have been and at the time the delivery should have taken place.

If part of the goods transported should be delivered the consignee may refuse toreceive them, when he proves that he can not make use thereof without theothers.

On November 25, 1908, Inchausti & Co. received in Manila from the Chinaman, Ong BiengSip, 205 bundles, bales or cases of goods to be conveyed by the steamer Sorsogon to theport of Gubat, Province of Sorsogon, where they were to be transshipped to another vesselbelonging to the defendant company and by the latter transported to the pueblo of Catarman, Island of Samar, there to be delivered to the Chinese shipper with whom thedefendant party made the shipping contract. To this end three bills of lading wereexecuted, Nos. 38, 39, and 76, copies of which, marked as Exhibits A, B, and C, are foundon pages 13, 14, and 15 of the record.

The steamer Sorsogon , which carried the goods, arrived at the port of Gubat on the 28th of that month and as the lorcha Pilar , to which the merchandise was to be transshipped for itstransportation to Catarman, was not yet there, the cargo was unloaded and stored in thedefendant company's warehouses at that port.

Several days later, the lorcha just mentioned arrived at Gubat and, after the cargo it carriedhad been unloaded, the merchandise belonging to the Chinaman, Ong Bieng Sip, together with other goods owned by the defendant Inchausti & Co., was taken aboard to betransported to Catarman; but on December 5, 1908, before the Pilar could leave for itsdestination, towed by the launch Texas , there arose and, as a result of the strong wind andheavy sea, the lorcha was driven upon the shore and wrecked, and its cargo, including theChinese shipper's 205 packages of goods, scattered on the beach. Laborers or workmenof the defendant company, by its order, then proceeded to gather up the plaintiff'smerchandise and, as it was impossible to preserve it after it was salved from the wreck of the lorcha , it was sold at public auction before a notary for the sum of P1,693.67.

8/3/2019 part II. (B.)

8/53

The contract entered into between the Chinese shipper, Ong Bieng Sip, and the firm of Inchausti & Co., provided that transportation should be furnished from Manila to Catarman,although the merchandise taken aboard the steamer Sorsogon was to be transshipped atGubat to another vessel which was to convey it from that port to Catarman; it was notstipulated in the said contract that the Sorsogon should convey the goods to their finaldestination, nor that the vessel into which they were to be transshipped, should be asteamer. The shipper, Ong Bieng Sip, therefore assented to these arrangements andmade no protest when his 205 packages of merchandise were unloaded from the ship and,on account of the absence of the lorcha Pilar , stored in the warehouses at Gubat nor didhe offer any objection to the lading of his merchandise on to this lorcha as soon as it

arrived and was prepared to receive cargo; moreover, he knew that to reach the port of Catarman with promptness and dispatch, the lorcha had to be towed by some vessel likethe launch Texas , which the defendant company had been steadily using for similar operations in those waters.

Hence the shipper, Ong Bieng Sip, made no protest or objection to the methods adoptedby the agents of the defendant for the transportation of his gods to the port of their destination, and the record does not show that in Gubat the defendant possessed anyother means for the conveyance and transportation of merchandise, at least for Catarman,than the lorcha Pilar , towed by said launch and exposed during its passage to all sorts of accidents and perils from the nature and seafaring qualities of a lorcha , from thecircumstances then present and the winds prevailing on the Pacific Ocean during themonths of November and December.

It is to be noted that a lorcha is not easily managed or steered when the traveling, for, outat sea, it can only be moved by wind and sails; and along the coast near the shore and inthe estuaries where it customarily travels, it can only move by poling. For this reason, inorder to arrive at the pueblo of Catarman with promptness and dispatch, the lorcha wasusually towed by the launch Texas .

The record does not show that, from the afternoon of the 4th of December, 1908, until themorning of the following day, the 5th, the patron or master of the lorcha which wasanchored in the cove of Gubat, received any notice from the captain of the steamer TonYek , also anchored near by, of the near approach of a storm. The said captain, JuanDomingo Alberdi, makes no reference in his sworn testimony of having given any suchnotice to the patron of the lorcha , nor did the latter, Mariano Gadvilao, testify that hereceived such notice from the captain of the Ton Yek or from the person in charge of the

Government observatory. Gadvilao, the patron , testified that only between 10 and 11o'clock of Saturday morning, the 5th of December, was he informed by Inchausti & Co.'sagent in Gubat that a baguio was approaching; that thereupon, on account of the conditionof the sea, he dropped the four anchors that the lorcha had on board and immediately wentashore to get another anchor and a new cable in order more securely to hold the boat inview of the predicted storm. This testimony was corroborated by the said representative,Melchor Muoz. So the lorcha , when the storm broke upon it, was held fast by five anchorsand was, as testified by the defendant without contradiction or evidence to the contrary,well found and provided with all proper and necessary equipment and had a sufficient crewfor its management and preservation.

The patron of the lorcha testified specifically that at Gubat or in its immediate vicinity thereis no port whatever adequate for the shelter and refuge of vessels in cases of danger, andthat, even though there were, on being advised between 10 and 11 o'clock of the morningof the 5th, of the approach of a storm from the eastern Pacific, it would have beenimpossible to spread any sails or weigh anchor on the lorcha without being dragged or

driven against the reefs by the force of the wind. As the craft was not provided with steamor other motive power, it would not have been possible for it to change its anchorage, nor move from the place where it lay, even several hours before the notice was received by its

patron . A lorcha can not be compared with a steamer which does not need the help or assistance of any other vessel in its movements.

Due importance must be given to the testimony of the weather observer, Antonio Rocha,that the notice received from the Manila Observatory on the afternoon of December 4, withregard to a storm travelling from the east of the Pelew Islands toward the northwest, wasnot made known to the people of Gubat and that he merely left a memorandum notice onthe desk of the station, intending to give explanations thereof to any person who shouldrequest them of him. So the notice of the storm sent by the Manila Observatory was onlyknown to the said observer, and he did not apprise the public of the approach of the stormuntil he received another notice from Manila at 20 minutes past 8 o'clock on Saturdaymorning, December 5. Then he made a public announcement and advised the authoritiesof the storm that was coming.

The patron of the lorcha Pilar is charged with gross negligence for not having endeavoredto remove his craft to a safe place in the Sabang River, about half a mile from where it wasanchored.

In order to find out whether there was or was not such negligence on the part of the patron ,it becomes necessary to determine, first, whether the lorcha , on the morning of December 5, could be moved by its own power and without being towed by any steamboat, since ithad no steam engine of its own; second, whether the lorcha , on account of its draft and theshallowness of the mouth of the said river, could have entered the latter before the stormbroke.

The patron , Mariano Gadvilao, stated under oath that the weather during the night of December 4 was not threatening and he did not believe there would be a storm; that heknew the Sabang River; and that the lorcha Pilar, when loaded, could not enter as therewas not sufficient water in its channel; that, according to an official chart of the port of Gubat, the bar of the Sabang River was covered by only a foot and a half of water atordinary low tide and the lorcha Pilar, when loaded, drew 6 feet and a half; that aside fromthe fact that the condition of the sea would not have permitted the lorcha to take shelter inthe said river, even could it have relied upon the assistance of a towboat, at half past 8o'clock in the morning the tide was still low; there was but little water in the river and stillless over the bar.

It was proven by the said official chart of the port of Gubat, that the depth of water over thebar or entrance of the Sabang River is only one foot and a half at ordinary low tide; that therise and fall of the tide is about 4_ _ feet, the highest tide being at 2 o'clock in theafternoon of every day; and at that hour, on the 5th of December, the hurricane hadalready made its appearance and the wind was blowing with all its fury and raising greatwaves.

The lorcha Pilar , loaded as it had been from the afternoon of December 4, even though itcould have been moved by means of poles, without being towed, evidently could not haveentered the Sabang River on the morning of the 5th, when the wind began to increase andthe sea to become rough, on account of the low tide, the shallowness of the channel, and

the boat's draft.

8/3/2019 part II. (B.)

9/53

The facts stated in the foregoing paragraph were proved by the said chart which wasexhibited in evidence and not rejected or assailed by the plaintiff. They were alsosupported by the sworn testimony of the patron of the lorcha , unrebutted by any oralevidence on the part of the plaintiff such as might disprove the certainty of the factsrelated, and, according to section 275 of the Code of Civil Procedure, the naturalphenomenon of the tides, mentioned in the official hydrographic map, Exhibit 7, which is

prima facie evidence on the subject, of the hours of its occurrence and of the conditionsand circumstances of the port of Gubat, shall be judicially recognized without theintroduction of proof, unless the facts to the contrary be proven, which was not done by theplaintiff, nor was it proven that between the hours of 10 and 11 o'clock of the morning of

December 5, 1908, there did not prevail a state of low tide in the port of Gubat.

The oral evidence adduced by the plaintiff with respect to the depth of the Sabang River,was unable to overcome that introduced by the defendant, especially the said chart.According to section 320 of the Code of Civil Procedure, such a chart is prima facieevidence of particulars of general notoriety and interest, such as the existence of shoals of varying depths in the bar and mouth of the Sabang River and which obstruct the entranceinto the same; the distance, length, and number of the said shoals, with other detailsapparently well known to the patron of the lorcha Pilar , to judge from his testimony.

Vessels of considerable draft, larger than the said lorcha , might have entered the SabangRiver some seven or nine years before, according to the testimony of the Chinaman,Antonio B. Yap Cunco, though he did not state whether they did so at high tide; but, since

1901, or previous years, until 1908, changes may have taken place in the bed of the river,its mouth and its bar. More shoals may have formed or those in existence may haveincreased in extent by the constant action of the sea. This is the reason why the patron ,Gadvilao, who was acquainted with the conditions of the port and cove of Gubat, positivelydeclared that the lorcha Pilar could not, on account of her draft, enter the Sabang River, onaccount of low water.

The patron of the lorcha , after stating (p.58) that at Gubat or in its vicinity there is no portthat affords shelter, affirmed that it was impossible to hoist the sails or weigh the anchorson the morning of the 5th of December, owing to the force of the wind and because theboat would immediately have been dragged or driven upon the shoals; that furthermore thelorcha was anchored in a channel some 300 brazas wide, but, notwithstanding this width,the Pilar was, for want of motive power, unable to move without being exposed to bedashed against the coast by the strong wind and the heavy sea then prevailing. The

testimony of this witness was neither impugned nor offset by any evidence whatever; hewas a patron of long years of service and of much practice in seafaring, especially in theport of Gubat and its vicinity, who had commanded or been intrusted with the command of other crafts similar to the lorcha Pilar and his testimony was absolutely uncontradicted.

The patron Gadvilao, being cognizant of the duties imposed upon him by rules 14 and 15of article 612, and others, of the Code of Commerce, remained with sailors, during the timethe hurricane was raging, on board the lorcha from the morning of December 5 until earlythe following morning, the 6th, without abandoning the boat, notwithstanding the imminentperil to which he was exposed, and kept to his post until after the wreck and the lorcha hadbeen dashed against the rocks. Then he solicited help from the captain of the steamer TonYek , and, thanks to the relief afforded by a small boat sent by the latter officer, Gadvilaowith his crew succeeded in reaching land and immediately reported the occurrence to therepresentative of Inchausti & Co. and to the public official from whom he obtained thedocument of protest, Exhibit 1. By such procedure, he showed that, as a patron skilled in

the exercise of his vocation, he performed the duties imposed by law in cases of shipwreckbrought about by force majeure .

Treating of shipwrecks, article 840 of the Code of Commerce prescribes:

The losses and damages suffered by a vessel and her cargo by reason of shipwreck or standing shall be individually for the account of the owners, the partof the wreck which may be saved belonging to them in the same proportion.

And Article 841 of the same code reads:

If the wreck or stranding should arise through the malice, negligence, or lack of skill of the captain, or because the vessel put to sea insufficiently repaired andsupplied, the owner or the freighters may demand indemnity of the captain for thedamages caused to the vessel or cargo by the accident, in accordance with theprovisions contained in articles 610, 612, 614, and 621.

The general rule established in the first of the foregoing articles is that the loss of thevessel and of its cargo, as the result of shipwreck, shall fall upon the respective ownersthereof, save for the exceptions specified in the second of the said articles.

These legal provisions are in harmony with those of articles 361 and 362 of the Code of Commerce, and are applicable whenever it is proved that the loss of, or damage to, thegoods was the result of a fortuitous event or of force majeure ; but the carrier shall be liablefor the loss or the damage arising from the causes aforementioned, if it shall have beenproven that they occurred through his own fault or negligence or by his failure to take thesame precautions usually adopted by diligent and careful persons.

In the contract made and entered into by and between the owner of the goods and thedefendant, no term was fixed within which the said merchandise should be delivered to theformer at Catarman, nor was it proved that there was any delay in loading the goods andtransporting them to their destination. From the 28th of November, when the steamer Sorsogon arrived at Gubat and landed the said goods belonging to Ong Bieng Sip to awaitthe lorcha Pilar which was to convey them to Catarman, as agreed upon, no vesselcarrying merchandise made the voyage from Gubat to the said pueblo of the Island of Samar, and with Ong Bieng Sip's merchandise there were also to be shipped goodsbelonging to the defendant company, which goods were actually taken on board the saidlorcha and suffered the same damage as those belonging to the Chinaman. So that therewas no negligence, abandonment, or delay in the shipment of Ong Bieng Sip'smerchandise, and all that was done by the carrier, Inchausti & Co., was what it regularlyand usually did in the transportation by sea from Manila to Catarman of all classes of merchandise. No attempt has been made to prove that any course other than the foregoingwas pursued by that firm on this occasion; therefore the defendant party is not liable for thedamage occasioned as a result of the wreck or stranding of the lorcha Pilar because of thehurricane that overtook this craft while it was anchored in the port of Gubat, on December 5, 1908, ready to be conveyed to that of Catarman.

It is a fact not disputed, and admitted by the plaintiff, that the lorcha Pilar was stranded andwrecked on the coast of Gubat during the night of the 5th or early in the morning of the 6th

of December, 1908, as a result of a violent storm that came from the Pacific Ocean, and,

8/3/2019 part II. (B.)

10/53

consequently, it is a proven fact that the loss or damage of the goods shipped on the saidlorcha was due to the force majeure which caused the wreck of the said craft.

According to the aforecited article 361 of the Code of Commerce, merchandise shall betransported at the risk and venture of the shipper, unless the contrary be expresslystipulated. No such stipulation appears of record, therefore, all damages and impairmentsuffered by the goods in transportation, by reason of accident, force majeure , or by virtueof the nature or defect of the articles, are for the account and risk of the shipper.

A final clause of this same article adds that the burden of proof of these accidents is uponthe carrier; the trial record fully discloses that the loss and damage of the goods shippedby the Chinaman, Ong Bieng Sip, was due to the stranding and wreck of the lorcha Pilar inthe heavy storm or hurricane aforementioned; this the plaintiff did not deny, and admittedthat it took place between the afternoon of the 5th and early in the morning of the 6th of December, 1908, so it is evident that the defendant is exempt from the obligation imposedby the law to prove the occurrence of the said storm, hurricane, or cyclone in the port of Gubat, and, therefore, if said goods were lost or damaged and could not be delivered inCatarman, it was due to a fortuitous event and a superior, irresistible natural force, or forcemajeure , which completely disabled the lorcha intended for their transportation to the saidport of the Island of Samar.

The record bears no proof that the said loss or damage caused by the stranding or wreckof the lorcha Pilar as a result of the storm mentioned, occurred through carelessness or

negligence on the part of the defendant company, its agents or the patron of the saidlorcha , or because they did not take the precautions usually adopted by careful and diligentpersons, as required by article 362 of the Code of Commerce; the defendant company, aswell as its agents and the patron of the lorcha , had a natural interest in preserving the craftand its own goods laden therein an interest equal to that of the Chinese shipper inpreserving his own which were on board the ship lorcha and, in fact, the defendant, hisagents and the patron did take the measures which they deemed necessary and proper inorder to save the lorcha and its cargo from the impending danger; accordingly, the patron ,as soon as he was informed that a storm was approaching, proceeded to clear the boat of all gear which might offer resistance to the wind, dropped the four anchors he had, andeven procured an extra anchor from the land, together with a new cable, and cast it intothe water, thereby adding, in so far as possible, to the stability and security of the craft, inanticipation of what might occur, as presaged by the violence of the wind and the heavysea; and Inchausti & Company's agent furnished the articles requested by the patron of the

lorcha for the purpose of preventing the loss of the boat; thus did they all display all thediligence and care such as might have been employed by anyone in similar circumstances,especially the patron who was responsible for the lorcha under his charge; nor is itpossible to believe that the latter failed to adopt all the measures that were necessary tosave his own life and those of the crew and to free himself from the imminent peril of shipwreck.

In view of the fact that the lorcha Pilar had no means of changing its anchorage, evensupposing that there was a better one, and was unable to accept help from any steamer that might have towed it to another point, as wherever it might have anchored, it wouldcontinually have been exposed to the lashing of the waves and to the fury of the hurricane,for the port of Gubat is a cove or open roadstead with no shelter whatever from the windsthat sweep over it from the Pacific Ocean, and in view of the circumstances that it wasimpossible for the said lorcha , loaded as it then was, to have entered the Sabang River,even though there had been a steamer to tow it, not only because of an insufficient depthof water in its channel, but also on account of the very high bar at the entrance of the said

river, it is incontrovertible that the stranding and wreck of the lorcha Pilar was due to afortuitous event or to force majeure and not to the fault and negligence of the defendantcompany and its agents or of the patron , Mariano Gadvilao, inasmuch as the recorddiscloses it to have been duly proved that the latter, in difficult situation in whichunfortunately the boat under his charge was placed, took all the precautions that anydiligent man should have taken whose duty it was to save the boat and its cargo, and, bythe instinct of self-preservation, his own life and those of the crew of the lorcha ; therefore,considering the conduct of the patron of the lorcha and that of the defendant's agent inGubat, during the time of the occurrence of the disaster, the defendant company has notincurred any liability whatever for the loss of the goods, the value of which is demanded by

the plaintiff; it must, besides, be taken into account that the defendant itself also lost goodsof its own and the lorcha too.

From the moment that it is held that the loss of the said lorcha was due to force majeure , afortuitous event, with no conclusive proof or negligence or of the failure to take theprecautions such as diligent and careful persons usually adopt to avoid the loss of the boatand its cargo, it is neither just nor proper to attribute the loss or damage of the goods inquestion to any fault, carelessness, or negligence on the part of the defendant companyand its agents and, especially, the patron of the lorcha Pilar.

Moreover, it is to be noted that, subsequent to the wreck, the defendant company's agenttook all the requisite measures for the salvage of such of the goods as could be recoveredafter the accident, which he did with the knowledge of the shipper, Ong Bieng Sip, and, in

effecting their sale, he endeavored to secure all possible advantage to the Chineseshipper; in all these proceedings, as shown by the record, he acted in obedience to thelaw.

From all the foregoing it is concluded that the defendant is not liable for the loss anddamage of the goods shipped on the lorcha Pilar by the Chinaman, Ong Bieng Sip,inasmuch as such loss and damage were the result of a fortuitous event or force majeure ,and there was no negligence or lack of care and diligence on the part of the defendantcompany or its agents.

Therefore, we hold it proper to reverse the judgment appealed from, and to absolve, as wehereby do, the defendant, Inchausti & Co., without special findings as to costs.

Arellano, C.J., Mapa and Johnson, JJ., concur.Carson and Trent, JJ., dissent.

Separate Opinions

MORELAND,J., dissenting:

In my opinion the decision of the court below, which this court reverses, is clearly inaccordance with law and in strict conformity with equity and justice. The defendant, ashipowner, agreed with the plaintiff to transport P14,000 worth of property from Manila toCatarman, Province of Samar. The defendant never fulfilled its contract. Instead of delivering the property at Catarman, Province of Samar, it left it on board of a lorcha in the

8/3/2019 part II. (B.)

11/53

waters of Gubat, a port in the southern part of the Island of Luzon, where, during a storm,the lorcha foundered and the property was lost.

This court holds that the Chinaman must lose his property. This is the manner in which thedefendant lost the goods of the plaintiff:

The Sorsogon , on which the goods were loaded at Manila, arrived at Gubat about the 28thof November, 1908. A few days later the lorcha Pilar arrived at Gubat, towed by the tugTexas. The lorcha was without means of locomotion of its own, except its sails, which, from

the record, appear never to have been used and were substantially useless, and couldmove about and protect itself from the weather only by being towed or "poled." The onlyboat on the coast owned by the defendant which could tow the lorcha was the tug Texas .Sometime before the 5th of December, at least one day before the storm broke, the goodsbelonging to the plaintiff were loaded on this lorcha . The tug Texas , under the orders of thedefendant, left the locality where the lorcha was loaded and did not return until after it waswrecked.

Let us see what were the conditions at the time the defendant voluntarily andunnecessarily placed the property of the plaintiff on the lorcha Pilar:

(1) It must be remembered that Gubat is located on the Pacific coast. The waters of Gubatare not protected waters; they are not inclosed; they are in the form of a bay; they aredirectly open to the winds from the Pacific Ocean, without protection or shelter of any kind,except possibly the mouth of the river, a matter here in dispute and which will be referredto later. They are likewise open to the full sweep of the waves of the Pacific coming fromits widest reaches.

(2) At the time the plaintiff's goods were loaded upon the lorcha Pilar it was the height of the typhoon season in that locality. The prevailing winds were from the Pacific. Destructivebaguios might reasonably be expected at any time. It was only with the exercise of diligence and prudence that shipping could be protected therefrom.

(3) As I have before indicated, the lorcha Pilar had substantially no means of locomotion of its own and depended for its protection in stormy weather entirely upon the steam tugTexas or being "poled" into the mouth of the river by its crew. At the time of the stormwhich destroyed the lorcha , and for some time prior thereto and for some days thereafter,the Texas was at the port of Barcelona, on the coast several miles south of Gubat, havingbeen sent by order of the defendant, its owner.

Summarizing, then, we have the defendant voluntarily placing the property of the plaintiff upon the kind of craft above described, dispatching to a distant port substantially the onlymeans of locomotion and protection which that craft had, except, as we have said, bybeing poled, placing that lorcha in waters directly exposed to the winds and waves of thePacific and at the mercy of every baguio that blew; and this during a season of the year when winds were generally high and destructive baguios might be expected at any time,and with full knowledge that if a typhoon came while the agents of the defendant wereunprepared the property of the plaintiff would in all probability be lost.

Having these facts in mind, let us see what the agents of the defendant did to protect the

property of the plaintiff which they had voluntarily placed in a situation of such peril.

(4) At the time of the destruction of the lorcha there was a Government weather observatory at Gubat which received advices many hours in advance of the approach of atyphoon toward the locality. It had been there for some years. The purpose of thatobservatory was to furnish information to the public concerning the formation and approachof typhoons from the Pacific and of warning the people with exposed shipping to take suchprecautions as were necessary for its protection. This was known to the defendant'sagents at Gubat. They knew that the observatory had a public office, open to anybody whocared to visit it, in which would be found all of the latest information relating to storms andbaguios coming from the Pacific Ocean. They knew that the officials of said observatorywere there for the express purpose of giving such information. The defendant's agents had

at Gubat a barometer and all the other instruments usually kept by seamen and navigatorsfor forecasting the weather.

(5) As we have said, the storm occurred on the 5th of December. It wrought its greatesthavoc late in the afternoon and the early part of the night. At about 2 o'clock on the daybefore the storm, that is, on the 4th of December, the observatory at Gubat received noticefrom the Manila observatory that a baguio was forming in the Pacific Ocean. At about thesame time at Barcelona, only 10 miles south of Gubat , the barometer on board the Texasdropped so rapidly as to indicate such dangerous weather probabilities that the captain of the Texas deemed it unsafe to venture out of the harbor . On the same afternoon thebarometer on board the only steam vessel near Gubat, the Ton Yek , also went down.Although it does not expressly appear in the evidence, yet it is an inference entirely fair from the record, and against which nothing whatever can be urged, that the barometer inthe possession of agents of the defendant also dropped with the same rapidity. In allhuman probability this could not be otherwise in view of the rapid and decisive fall of thebarometer on board the Texas , only 10 miles away, and the fact that the typhoon brokeover both places equally. At the same time, and more pronounced a little later, everysymptom which men who have to deal with the sea could and would readily observe, andwhich the captain of the Ton Yek did observe as a matter of fact, indicated the approach of a heavy storm. These evidences were heeded by the captain of the Ton Yek, who, early onthe morning of the 5th, without waiting for the appearance of a storm signal at theobservatory, sent a messenger to the observatory for the purpose of ascertaining withmore accuracy what was going to happen. In spite of all these things, most of whichoccurred on the afternoon or evening of the day preceding the storm, the agents of thedefendant did absolutely nothing to inform themselves as to the prospective whether conditions or as to whether or not a baguio was approaching, and did absolutely nothing topreserve or protect the property which they had placed in so exposed and dangerous aplace.

(6) The morning of the 5th arrived. As we have already stated, all of the signs which menwho have to do with the sea so readily read indicated unquestionably and decisively theapproach of the storm which the advices received by the observatory at 2 o'clock on theafternoon before told the inhabitants of that locality was probably coming. Still the agentsof the defendant did nothing. The captain of the Ton Yek, although his vessel was a steamvessel and was able to take care of itself by reason of its machinery, judging these signsand portents, found it advisable to consult with the observatory early on the morning of the5th. The approach of a storm was apparent to him and he took precautions accordingly.Yet the agents of the defendant did nothing. Although the lorcha on which they had put theproperty of the plaintiff was, according to their own admissions , utterly unprotected, andalthough P14,000 worth of goods intrusted to their care was in great danger of being lost,still they did absolutely nothing, either by anticipation or otherwise, to protect that propertytherefrom.

8/3/2019 part II. (B.)

12/53

(7) On the morning of the 5th at about 8.20 or 8.30 o'clock the observatory run up the firstdanger signal. Still the agents of the defendant noted nothing, did nothing. They paidabsolutely no attention to it, as they had paid no attention whatever to the other indications.They left the lorcha to its fate without lifting a finger to save it. At 9 o'clock the wind hadrisen and the waves had commenced to roll. Still nothing was done. At 9.30 the winds werestill stronger and the waves higher. Still nothing was done. At 10.30 the increase in thestrength of the wind and of the height of the waves continued. And yet the agents of thedefendant did nothing. It was well toward 11 o'clock before they began to move. And thattime it was too late. The wind and waves were so high that, with the means at hand, thelorcha could not be moved from the exposed position in which it was, even if it be

conceded that there was any safer place within those waters. The lorcha was preventedfrom dashing itself immediately upon the rocks only by virtue of its anchor. At between10.30 and 11 o'clock the captain of the lorcha came to ashore to secure additionalanchors. And that time, however, as we have observed, it was too late to unload the goodsand too late to remove the lorcha to a safe place within the mouth of the river, even if thatwere possible. The agents of the defendant, having done absolutely nothing up to thistime, now found, after they had awakened from their lethargy, that it was too late to domore than stand by and see the property, which had been intrusted to their care and for carrying of which they had been paid, dashed to pieces on the rock and swallowed up bythe sea.

(8) For nearly eighteen hours prior to the disaster the information that the disaster wascoming lay under the very noses of the agents of the defendant. For nearly eighteen hoursthe barometer had been dropping steadily, so much so that their own vessel dared notleave a port only 10 miles distant on the afternoon before . For eighteen hours everywarning which nature could give, indicating the disaster which subsequently came, hadbeen repeatedly thrust upon them. Yet they did nothing. Having placed the goods of theplaintiff in an exposed and dangerous position, in waters open to the winds and waves of the Pacific Ocean, at the height of the typhoon season, in a vessel which had no motivepower of its own, and having sent away that which they themselves substantially admitwas its only protection, the agents of the defendant exercised no care or precautionwhatever to the end that they might protect the goods which they themselves had sorecklessly exposed.

Yet this court, under such circumstances, holds that the defendant may go in peace andthat the plaintiff is the one who must bear the burden of such negligence.

With that decision I can not agree.

An act of God can not be urged for the protection of a person who has been guilty of grossnegligence in not trying to avert its results. One who has accepted responsibility for paycan not weakly fold his hands and say that he was prevented from meeting thatresponsibility by an act of God, when the exercise of the ordinary care and prudence wouldhave averted the results flowing from that act. One who has placed the property of another,intrusted to his care, in an unseaworthy craft, upon dangerous waters, cannot absolvehimself by crying, "an act of God," when every effect which a typhoon produced upon thatproperty could have been avoided by the exercise of common care and prudence. Whenthe negligence of the carrier concurs with an act of God producing a loss, the carrier is notexempted from liability by showing that the immediate cause of the damage was the act of God; or, as it has been expressed, "when the loss is caused by the act of God, if thenegligence of the carrier mingles with it as an active and cooperative cause, he is still

liable." The loss and damage to perishable articles in consequence of the weather will notexcuse the carrier if it could have been prevented by due care and diligence. The carrier

must not only show that it did all that was usual, but all that was necessary to be doneunder the circumstances . (Wing vs. New York, etc., Ry. Co., 1 Hilt. (N.Y.), 235; Philleo vs.Sanford, 17 Tex., 228.) To be exempt from liability for loss because of an act of God, thecommon carrier must be free from any previous negligence or misconduct by which thatloss or damage may have been occasioned. For, although the immediate or proximatecause of a loss in any given instance may have been what is termed an act of God, yet if the carrier unnecessarily exposed the property to such accident by any culpable act or omission of his own, he is not excused. (Mc-Graw vs. Baltimore and Ohio Ry. Co., 41 Am.Rep., 696.) In the case of Wolf vs. American Express Co,., 43 Mo., 421, Wagner, J., said:

The act of God which excuses the carrier must not only be the proximate causeof the loss, but the better opinion is that it must be the sole cause. And where theloss is caused by the "act of God," if the negligence of the carrier mingles with itas an active and cooperative cause, he is still responsible. (Amies vs. Stevens, 1Stra., 128.)

Where perishable property, such as potatoes, is received by a common carrier at a seasonwhen a very low temperature may reasonably apprehended, great diligence should beused in forwarding such property with dispatch and haste; and where, by a delay of two or three days, the property is damaged by freezing, the carrier may be held liable for thedamage. (Hewett vs. The Chicago, B & Q. Ry. Co., 63 Ia., 611.) A carrier is bound toprovide a vessel in all respects adequate to the purpose, with a captain and crew of requisite skill or ability; and, failing in these particulars, though the loss be occasioned byan act of God, the carrier may not set up a providential calamity to protect himself againstwhat may have arisen from his own folly. (Hart vs. Allen and Grant, 2 Watts (Pa.), 114.)

This doctrine is fully supported by the Spanish authorities on the subject.

Manresa in his commentaries to section 1105 of the Civil Code of Spain, volume 8, page91, says:

Elucidation of article 1105 and the idea of the accident is interesting under thefollowing aspects; Relation between it and the blame; enumeration of therequisites that must be present; proof of the event and characterization thereof;and the consequence it produces. Let us examine them.

Even when the distinction is simple and reasonable between blame for someexempting circumstance (because it may not be serious enough to involve suchblame, under the law or the obligation) and accident, since the former admits animputation which the latter excludes, even when the former may not be the basisfor legal responsibility, and therefore it can not be said that where no responsibleblame exists there the accident commences, yet the latter is undeniablycharacterized by unexpectedness and inevitability, circumstances susceptible of relative interpretation, and so whatever relates to the blame must be taken intoaccount, because, as we shall see, it is in certain sense, especially in practicalapplication, connected with the matter under consideration.

Aside from this statement of ideas, there may be another of consequences, for inthe complexity of facts, in the same obligation, there may be present blameenough to involve such and also accident. When both causes are present, withseparation of time and affects, for partial breach due to one of them may bepossible and then the other may operate to aggravate or complete these

8/3/2019 part II. (B.)

13/53

consequences, the distinction is easy and to each cause may be assigned itsown effect for the corresponding result, as neither exemption, on account of accident, can be extended to what may be imputed nor to what in any waydepends upon it by basing responsibility arising from blame on the fact that thedamage is the result thereof.

The problem becomes more difficult when both causes concur to produce thesame effect or when, even though the effect may be due to accident, the obligor has not exercised necessary diligence, however, blameless he was for theresults arising from the breach. In the first of the last two suppositions, thesolution is plain, because when the obligor incurs the blame of actually producingthe result, or even when it is not the only cause, or even the principal one, thereis still sufficient connection between it and the consequences to cause them tobe imputed to him and, as a voluntary elements exists in the causes, there islacking the circumstance indispensable to exemption on account of accident. Thesecond supposition presents a very difficult problem of proof, which rests uponthe obligor, and calls for a careful analysis of the origin of the breach. Thedifficulty in this case consists in that the blame, in addition to its subjective aspectfor imputing the consequences to the obligor, has an objective aspect, to wit, thatthese consequences may rise, that the damage which must be repaired iscaused, in such manner that due diligence may be lacking and yet not extend tothe point of involving responsibility, because it produces no results. Now then, if an accident occurs under these conditions, absolutely independent of thenegligence that may have existed, it may have occurred with or withoutnegligence and therefore any derivation of consequences was lacking, then itcan not be said that responsibility arises therefrom; but to reach this conclusionthere first rests with the obligor proof so difficult that, in addition to overcomingthe presumption of existence of blame, it involves the very fine distinction of theorigin of the breach and perfectly reveals the occurrence of the accident, joinedby their coexistence, and demonstrating absolute lack of consequences andinfluence of blame.

In connection with this question, a judgment of November 22, 1904, declares thatthere are some events which, independent of the will of the obligor, hinder thefulfillment of the obligation, and yet do not constitute cases of force majeure for the purposes of such fulfillment, because the possibility that they would occur could have been foreseen, articles 1101 and 1104 being applicable and notarticle 1105, since negligence or blame is also present from not informing theobligee, either at first or later on, of the state of affairs and the situation, so as toavoid the consequent damage. This was the case of a bull fight that could not beheld because the ring was not completed in time for reasons beyond the controlof the contractor, but the fact that the contract did not state that the ring wasunconstructed and the possibility that it would not be at the time specified,reveals, in the opinion of the court, the lack of foresight or the negligence whichmakes article 1105 inapplicable.

In an essentially analogous way, judgments were pronounced on June 12, 1899(Tribunal contencioso administrativo ), and on October 27, 1905 ( Sala tercera ),against the company leasing the tobacco monopoly, for losses caused by theftand fire. It was further decided in these cases that the company and not the Statemust bear the losses, for while accidental fire in a tobacco factory and theft of

stamped goods stored in a branch house may constitute accidents, yet they do

not deserve this characterization when they occur through omission, neglect or lack of care which imply breach of the contract.

According to the text of article 1105, which agrees with the rational idea of accident, it is sufficient for the event to constitute such that it have any of the twocharacteristics enumerated; if it is foreseen, it is of little import that it beunavoidable; and if it is unavoidable it does not matter that it may have beenforeseen. The first supposition requires some explanation: an event may bewholly unforeseen, but, after it has occurred, be very slow in producing effects,and in such case, although it could not have been foreseen, as there is timebefore it produces its effects, the latter must be considered.

Besides this special supposition, in which, if carefully considered, the twocharacteristics do not concur, since the idea of unexpectedness, as is seen, isrelative, it will be sufficient that one or the other be present. The possibility of foresight must be weighed rationally with consideration of all the circumstances,but this general rule has, strictly speaking, an exception when the event,although in a general way very difficult, almost impossible to be foreseen, shouldfor some reason be known to the obligor in due time.

The condition of inevitability can not be understood in so absolute a sense that itshould take away the character of accident from many that are strictly such,because they are undoubtedly causes, however powerful they may be, whose

injurious effects may have been avoided by exercising a number of precautions,so exaggerated and so out of proportion to the importance of the troubleanticipated, that they would be unreasonable and not required in law. In suchcases, if the means which can and must rationally be employed are not effective,it will be held to have been unavoidable. So we see demonstrated how the ideaof diligence is related, somewhat in the nature of limitation, to the accident.

Such was the doctrine established in our ancient law regarding the obligor; thereasons whereof are theoretically set forth further on; and as a written provision,law 20, title 13, partida 5, which expressly laid down this principle in connectionwith pawn-broking contracts, and which was, by analogy, made the basis for extending a similar provision to the remaining cases.

That the Civil Code is inspired by the same idea is clearly expressed in article1183 thereof, the commentary on which should be consulted. Still such solutiondepends upon the nature of proof and of the accident, since its existence as anabnormal event hindering the fulfillment of the obligation must be proved and notpresumed, and the burden of this proof rests upon the obligor, and not upon theobligee, whose proof would have to be negative. Moreover since an accident isthe basis for exemption from responsibility, it must be proved by him who willbenefit thereby and who objects to the requirement that he fulfill his obligations.To these reasons are joined those above set forth in connection with the proof of contractual blame, since they are, according to the same article, 1183, abovecited, closely related questions, so much so that they become two phases of onequestion presumption against the existence of accident of what tends toestablish presumption of blame, in the absence of proof to overcome it.

Proof of accident must include these points; the occurrence of the event, thebearing it has upon breach of the obligation, and the concurrence of

8/3/2019 part II. (B.)

14/53

unexpectedness and inevitably. In connection with the first two points, the proof resting upon the obligor must be specific and exact; but as for the last, although itmay be admitted as a general proposition that, in addition to proving the event,he must also demonstrate that it involves the condition required to make it anaccident, there are some of such magnitude and, by their nature, of almostimpossible prevision, that proof of their occurrence demonstrates their condition.Undoubtedly, and differently from proof of the accident, the exceptionalcircumstance that the event (which should as a general proposition be regardedas unforeseen) was known to the obligor for some special reason, must be of proven by the obligee who asserts it, since the obligation of proof resting upon

the former is fulfilled in this regard by demonstrating that the event oughtrationally to be held to have been unforeseen.

Since proof of the accident is related to proof of the blame, it is evident that theobligor must also prove, so far as he is concerned, that he is not to blame for breach of the obligation.

Exemption from responsibility in accidents established by article 1105 has,according to its text, two exceptions, whereby an event may be plainly proven,and be unforeseen and unavoidable and still not produce such exemption, viz,when the execution is either stipulated in the obligation or is expressly mentionedby the law. The basis for these exceptions rests, according to this cases, either upon the freedom of contracts, which is opposed to prohibition of a compact,wherein, without immorality, there is merely an emphasized stipulation, which ismeant to guarantee in every case an interest and indirectly to secure careful andspecial diligence in the fulfillment of the obligation; or upon the nature of theobligations when risk is an essential element therein; or finally upon cases whosecircumstances, as happens with that provided for by the last paragraph of article1096, justify the special strictness of the law.

In conclusion, we shall point out that in order to relieve the obligor from hisobligation, it must be remembered that the occurrence of the event does notsuffice, but that the impossibility of fulfilling the obligation must be the directconsequences of the accident, so that when it can be fulfilled it will subsists, evenif only in part, and therefore, in order to see whether or not the accident producesthis result the nature of the obligation must be considered, and according towhether it be specific or general, etc., it will or will not be extinguished.

To hold the carrier responsible in the case at bar, it is not necessary to go so far as theauthorities just cited. The negligence is so clear that it is not necessary to strain doctrinesor even press them to their limits.

I do not agree here argue the assertion of the plaintiff denied by the defendant, that, at anytime before nine o'clock of the day of the destruction of the lorcha , the defendant's agentscould have placed the lorcha in the mouth of the river out of harm's way. I believe that afair preponderance of the evidence shows that this could have been done. The defendantdenies this, asserting that the water was too shallow. Nevertheless, fourteen days after thestorm, the foundered lorcha , water-logged and undoubtedly containing water, was " poled "by its crew from the place where it went on the rocks to a place of safety inside the mouthof the river . It is more than probable that this could have been done at any time before thestorm became too high. At last common prudence would have required the unloading of

the lorcha , which could easily have been accomplished before the storm if the agents of the defendant had awakened themselves to their duty.

8/3/2019 part II. (B.)

15/53

G.R. No. L-69044 May 29, 1987

EASTERN SHIPPING LINES, INC.,petitioner,vs.INTERMEDIATE APPELLATE COURT and DEVELOPMENT INSURANCE & SURETY CORPORATION,respondents.

No. 71478 May 29, 1987

EASTERN SHIPPING LINES, INC.,petitioner,vs.THE NISSHIN FIRE AND MARINE INSURANCE CO., and DOWA FIRE & MARINE INSURANCE CO., LTD.,respondents.

MELENCIO-HERRERA,J.:

These two cases, both for the recovery of the value of cargo insurance, arose from the same incident, thesinking of the M/S ASIATICA when it caught fire, resulting in the total loss of ship and cargo.

The basic facts are not in controversy:

In G.R. No. 69044 , sometime in or prior to June, 1977, the M/S ASIATICA, a vessel operated by petitioner Eastern Shipping Lines, Inc., (referred to hereinafter as Petitioner Carrier) loaded at Kobe, Japan for transportation to Manila, 5,000 pieces of calorized lance pipes in 28 packages valued at P256,039.00consigned to Philippine Blooming Mills Co., Inc., and 7 cases of spare parts valued at P92,361.75, consignedto Central Textile Mills, Inc. Both sets of goods were insured against marine risk for their stated value withrespondent Development Insurance and Surety Corporation.

In G.R. No. 71478, during the same period, the same vessel took on board 128 cartons of garment fabrics andaccessories, in two (2) containers, consigned to Mariveles Apparel Corporation, and two cases of surveyinginstruments consigned to Aman Enterprises and General Merchandise. The 128 cartons were insured for their stated value by respondent Nisshin Fire & Marine Insurance Co., for US $46,583.00, and the 2 cases byrespondent Dowa Fire & Marine Insurance Co., Ltd., for US $11,385.00.

Enroute for Kobe, Japan, to Manila, the vessel caught fire and sank, resulting in the total loss of ship andcargo. The respective respondent Insurers paid the corresponding marine insurance values to the consigneesconcerned and were thus subrogated unto the rights of the latter as the insured.

G.R. NO. 69044

On May 11, 1978, respondent Development Insurance & Surety Corporation (Development Insurance, for short), having been subrogated unto the rights of the two insured companies, filed suit against petitioner Carrier for the recovery of the amounts it had paid to the insured before the then Court of First instance of Manila, Branch XXX (Civil Case No. 6087).

Petitioner-Carrier denied liability mainly on the ground that the loss was due to an extraordinary fortuitousevent, hence, it is not liable under the law.

On August 31, 1979, the Trial Court rendered judgment in favor of Development Insurance in the amounts of P256,039.00 and P92,361.75, respectively, with legal interest, plus P35,000.00 as attorney's fees and costs.Petitioner Carrier took an appeal to the then Court of Appeals which, on August 14, 1984, affirmed.

Petitioner Carrier is now before us on a Petition for Review on Certiorari.

G.R. NO. 71478

On June 16, 1978, respondents Nisshin Fire & Marine Insurance Co. NISSHIN for short), and Dowa Fire &Marine Insurance Co., Ltd. (DOWA, for brevity), as subrogees of the insured, filed suit against Petitioner Carrier for the recovery of the insured value of the cargo lost with the then Court of First Instance of Manila,Branch 11 (Civil Case No. 116151), imputing unseaworthiness of the ship and non-observance of extraordinary diligence by petitioner Carrier.

Petitioner Carrier denied liability on the principal grounds that the fire which caused the sinking of the ship isan exempting circumstance under Section 4(2) (b) of the C