Participación de la PTEPA en foros de consulta

1. Philamgen vs. CA (SUPAPO)  (Insurance v. Ship owner)    PARTIES:  Insurance company ­ Philamgen  Ship Owner ­ Transpacific Towage  Owner of goods ­ Davao Union Marketing Corp.    SYNOPSIS: (Sorry mahaba yung facts kasi) 

A cargo arrived in a port. It was not immediately unloaded in the        vessel because of several reasons. During the unloading of        cargoes, a super typhoon came. As such, not all cargoes were        unloaded in the vessel. Unfortunately, the vessel was broke into 2        parts. The cement were damaged and the GI sheets were pilfered        and looted. With this, the owner of cargoes claimed its insurance        indemnity against the insurer. The insurer wants to get        reimbursement from the ship owner contending that it was the        latter’s negligence and accordingly should bear the loss. The TC        held the ship owner liable as there was unreasonable delay, which        exposed the cargo to accident. The CA reversed it, ruling that the        loss was due solely to a fortuitous event. The SC affirmed CA’s        decision that the delay was not due to negligence but attributable to        several factors. Hence, the ship owner is not liable for the loss.   

FACTS: 

1. Davao Union Marketing Corporation shipped on board the        vessel M/V "Crazy Horse" operated by the Transpacific        Towage, Inc. cargo consisting of 9,750 sheets of union brand        GI sheets and 86,860 bags of union Pozzolan and union        Portland Cement. 

2. The cargo was consigned to the Bicol Union Center of        Pasacao, Camarines Sur, with a certain Pedro Olivan as the        "Notify­Party." 

3. The cargo was insured by the Philamgen, covering 86,000, of        Union Pozzolan and Portland cement. 

4. The vessel M/V "Crazy Horse" arrived on September 7, 1985            as scheduled at the port of Pasacao, Camarines Sur. 

5. Upon  arrival  the shipmaster notified the consignee's          "Notify­Party" that the vessel was all ready to discharge the        cargo. 

6. The discharging could not be affected immediately and        continuously because of certain reasons: 

a. First, the buoys were installed only on September 11,        1985; 

b. second, the discharge permit was secured by the        consignee only on September 13, 1985; 

c. third a wooden catwalk had to be installed and extension        of the wharf had to be made, which was completed only        on September 26, 1985; 

d. fourth, the discharging was not continuous because there        were intermittent rains and the stevedores supplied by        the consignee did not work during the town fiesta of the        Virgin of Penafrancia. 

7. 40 days after the shipment arrived, super typhoon “Saling”        came. The Pasacao area was placed under storm signal No.        3. 

8. Because of super typhoon “Saling”, the discharging of the              cargo had to be suspended on October 17, 1985 due to the                        heavy downpour, strong winds, and turbulent sea. To prevent                  damage to the cargo all hatches of the vessel were closed and        secured. 

9. The vessel sustained holes in the engine room and eventually        broke into 2 parts and sank partially. 

10.The shipmaster reported the incident to the Philippine Coast       

Guard but despite the presence of three (3) coast guards,       

nothing could be done about the pilferage done on the vessel       

and its cargo.  

11.Almost the whole barrio and because there were so many of       

them the crew and the guards were helpless to stop the       

pilferage and looting. As a result of the incident the cargo of       

cement was damaged while the GI sheets were looted and       

nothing was left of the undischarged pieces. 

12. Accordingly, Davao Union claimed its insurance indemnity        against Philamgen which it paid. 

13. As such, Philamgen demanded from Transpacific the amount        it paid to Davao Union, claiming that the loss of the cargo was        directly and exclusively brought about by the fault and        negligence of the shipmaster and the crew of M/V "Crazy        Horse". 

14. However, Transpacific refused.   

TC’S RULING: although the immediate cause of the loss may        have been due to an act of God, the defendant carrier had exposed        the property to the accident. Also, it found plaintiff guilty of        contributory negligence. 

  

The lapse of thirty four (34) days with Transpacific not having                      completed the unloading of the goods, is tantamount to                  unreasonable delay, which delay exposed the unloaded              cargo to accident. The trial court held Transpacific liable for the          loss of goods under Article 1740 of the Civil Code which provides        that if the common carrier negligently incurs in delay in        transporting the goods, a natural disaster shall not free the carrier        from responsibility. 

  

CA’S RULING: reversed the decision of the TC and ruled        Transpacific Towage is not responsible for the loss of the insured        cargo as said loss was due solely to a fortuitous event. 

  

It ruled out any negligence committed by Transpacific and held that        the delay in fully unloading the cargo from the vessel "was                      occasioned by causes that may not be attributed solely to                    human factors, among which were the natural conditions of                  the port where the M/V "Crazy Horse" had docked, the                    customs of the place and the weather conditions. It applied                    Article 1739 of the Civil Code which provides as follows: In order        that the common carrier may be exempted from responsibility, the        natural disaster must have been the proximate and only cause of        the loss. However, the common carrier must exercise due        diligence to prevent or minimize loss before, during and after the        occurrence of flood, storm, or other natural disaster in order that        the common carrier may be exempted from liability for the loss,        destruction, or deterioration of the goods. 

 

ISSUE: Whether the delay is due to negligence of Transpacific and        as such should bear the loss? 

 

HELD: NO! Transpacific is not legally liable for the loss of the                        insured goods. Neither of the parties herein could be faulted                    for such delay, for the same (delay) was due not to                      negligence, but to several factors. 

 

While it is true that there was indeed delay in discharging the cargo        from the vessel, we agree with the Court of Appeals that neither of       

the parties herein could be faulted for such delay, for the same        (delay) was due not to negligence, but to several factors earlier        discussed. The cargo having been lost due to typhoon "Saling",        and the delay incurred in its unloading not being due to negligence,        private respondent is exempt from liability for the loss of the cargo,        pursuant to Article 1740 of the Civil Code. 

  

The records also show that before, during and after the        occurrence of typhoon "Saling", private respondent through its        shipmaster exercised due negligence to prevent or minimize the        loss of the cargo, as shown by the following facts: (1) at 5:20 a.m.        of 18 October 1985, as typhoon "Saling" continued to batter the        Pasacao area, the shipmaster tried to maneuver the vesel amidst        strong winds and rough seas; (2) when water started to enter the        engine room and later the engine broke down, the shipmaster        ordered the ship to be abandoned, but he sought police assistance        to prevent pilferage of the vessel and its cargo; (3) after the vessel        broke into two (2) parts and sank partially, the shipmaster reported        the incident to the Philippine Coast Guard, but unfortunately,        despite the presence of three (3) coast guards, nothing could be        done to stop the pilferage as almost the entire barrio folk came to        loot the vessel and its cargo, including the G.I. sheets. The        diligence exercised by the shipmaster further supports the        exemption of private respondent from liability for the loss of the        cargo, in accordance with Article 1739 of the Civil Code.        v. Due diligence to prevent lessen the loss  1. Asia Lighterage and Shipping, Inc., vs. CA (VELASCO)    Shipper – Marubeni American Corporation  Consignee – General Milling Corporation  Insurer – Prudential Guarantee and Assurance, Inc.  Carrier (from port to warehouse) – Asia Lighterage and Shipping, Inc.     Goods: Better Western White Wheat     Facts  

Goods were shipped to Manila from Portland, Oregon. Upon arrival in        Manila, the cargo was transferred to the custody of the petitioner Asia        Lighterage and Shipping, Inc. It was contracted by the consignee as        carrier to deliver the cargo to consignee's warehouse in Pasig City. The       

goods loaded on barge for delivery, but the cargo did not reach its       

destination.     It appears that the transport of said cargo was suspended due to a       

warning of an incoming typhoon. Petitioner proceeded to pull the barge to       

an island to seek shelter from the approaching typhoon. The barge was       

tied down to other barges. A few days after, the barge developed a list       

because of a hole it sustained after hitting an unseen protuberance       

underneath the water. The petitioner filed a Marine Protest. It likewise       

secured the services of Gaspar Salvaging Corporation which refloated the       

barge. The hole was then patched with clay and cement.     The barge was then towed to ISLOFF terminal before it finally headed       

towards the consignee's wharf. Upon reaching the Sta. Mesa spillways,       

the barge again ran aground due to strong current. To avoid the complete       

sinking of the barge, a portion of the goods was transferred to three other       

barges.     The next day, the towing bits of the barge broke. It sank completely,       

resulting in the total loss of the remaining cargo. A second Marine Protest       

was filed.     A bidding was conducted to dispose of the damaged wheat retrieved and       

loaded on the three other barges. The total proceeds from the sale of the       

salvaged cargo was P201,379.75.     On the same day, consignee sent a claim letter to the petitioner, and       

another letter to the private respondent (Insurer, Prudential) for the value of       

the lost cargo.      Private respondent indemnified the consignee. Thereafter, as subrogee, it       

sought recovery of said amount from the petitioner, but to no avail.     RTC: in favor of Prudential     CA: Affirmed with modification, deducting the proceeds of the sale     Issues of the case:  1 WON petitioner is a common carrier – YES (But not the topic the case       

is under)  2 WON extraordinary diligence was exercised in the care and custody of        the consignee’s cargo – NO 

SC:  1. YES    

Article 1732 of the Civil Code defines common carriers as persons,             

corporations, firms or associations engaged in the business of carrying or       

transporting passengers or goods or both, by land, water, or air, for       

compensation, offering their services to the public.     Petitioner’s contention: private carries because it does not hold out its       

services to the general public.     Jurisprudence: CivCode makes no distinction between principal business       

and ancillary activity. No distinction between regular/scheduled trips and       

occasional/episodic. No distinction between services offered to general       

public and those that are solicited from a narrow segment of the       

population.     2. NO     Petitioner failed to exercise extraordinary diligence in its care and custody       

of the consignee’s goods.     Common carriers are bound to observe extraordinary diligence in the       

vigilance over the goods transported by them. They are presumed to have       

been at fault or to have acted negligently if the goods are lost, destroyed or       

deteriorated. To overcome the presumption of negligence in the case of       

loss, destruction or deterioration of the goods, the common carrier must       

prove that it exercised extraordinary diligence.      There are, however,     

exceptions to this rule. Article 1734 of the Civil Code enumerates the       

instances when the presumption of negligence does not attach, when the       

cause is due to:  (1) Flood, storm, earthquake, lightning, or other natural disaster or       

calamity;  (2) Act of the public enemy in war, whether international or civil;  (3) Act or omission of the shipper or owner of the goods;  (4) The character of the goods or defects in the packing or in the       

containers;  (5)  Order or act of competent public authority.     In the case at bar, the barge completely sank after its towing bits broke,       

resulting in the total loss of its cargo. Petitioner claims that this was       

caused by a typhoon, hence, it should not be held liable for the loss of the       

proximate and only cause of the loss of the goods, and that it has       

exercised due diligence before, during and after the occurrence of the       

typhoon to prevent or minimize the loss. The evidence show that, even       

before the towing bits of the barge broke, it had already previously       

sustained damage when it hit a sunken object on its first docket incident.       

It even suffered a hole. Clearly, this could not be solely attributed to the       

typhoon. The partly­submerged vessel was refloated but its hole was       

patched with only clay and cement.      The patch work was merely a       

provisional remedy, not enough for the barge to sail safely. Thus, when       

petitioner persisted to proceed with the voyage, it recklessly exposed the       

cargo to further damage.     Accordingly, the petitioner cannot invoke the occurrence of the typhoon as       

force majeure to escape liability for the loss sustained by the private       

respondent.  Surely, meeting a typhoon head­on falls short of due       

diligence required from a common carrier.      More importantly, the     

officers/employees themselves of petitioner admitted that when the towing       

bits of the vessel broke that caused its sinking and the total loss of the       

cargo upon reaching the Pasig River, it was no longer affected by the       

typhoon. The typhoon then is not the proximate cause of the loss of the       

cargo; a human factor, i.e., negligence had intervened.       vi. Effect of contributory negligence  1. Tabacalera Insurance Co. vs. North Front Shipping Services, Inc.       

(BUENAVENTURA)    DOCTRINE: However, we cannot attribute the destruction, loss or deterioration of                     

the cargo solely to the carrier. We find the consignee Republic Flour Mills                         

Corporation guilty of contributory negligence.          It was seasonably notified of the           

arrival of the barge but did not immediately start the unloading operations. No                         

explanation was proffered by the consignee as to why there was a delay of six (6)                               

days. Had the unloading been commenced immediately the loss could have                     

been completely avoided or at least minimized. As testified to by the chemist                         

who analyzed the corn samples, the mold growth was only at its incipient stage                           

and could still be arrested by drying. The corn grains were not yet toxic or unfit                               

for consumption.    For its contributory negligence, Republic Flour Mills             

Corporation should share at least 40% of the loss     FACTS: 20,234 sacks of corn grains valued at P3,500,640.00 were shipped on       

board North Front 777, a vessel owned by North Front Shipping Services, Inc. The       

cargo was consigned to Republic Flour Mills Corporation in Manila and insured       

to actual loading by representatives of the shipper and was found fit to carry the       

merchandise. The cargo was covered with tarpaulins and wooden boards. The       

hatches were sealed and could only be opened by representatives of Republic       

Flour Mills Corporation.     The vessel left Cagayan de Oro for Manila, Republic Flour was advised of its       

arrival but it did not immediately commence the unloading operations. There were       

days when unloading had to be stopped due to variable weather conditions and       

sometimes for no apparent reason at all.      When the cargo was eventually         

unloaded there was a shortage of 26.333 metric tons. The remaining       

merchandise was already moldy, rancid and deteriorating. The unloading       

operations were completed twenty (20) days after the arrival of the barge at the       

wharf of Republic Flour Mills Corporation in Pasig City.     The corn grains were examined and it was found that the corn grains had molds       

due to contact with sea water. The mold growth was only incipient and not       

sufficient to make the corn grains toxic and unfit for consumption. In fact the mold       

growth could still be arrested by drying.     Republic Flour Mills Corporation rejected the entire cargo and formally demanded       

from North Front Shipping Services, Inc., payment for the damages suffered by it.       

The demands however were unheeded. The insurance companies paid Republic       

Flour Mills Corporation P2,189,433.40.      The insurance companies lodged a complaint for damages against North Front       

Shipping Services, Inc., claiming that the loss was exclusively attributable to the       

fault and negligence of the carrier. The Marine Cargo Adjusters hired by the       

insurance companies conducted a survey and found cracks in the bodega of the       

barge and heavy concentration of molds on the tarpaulins and wooden boards.       

They did not notice any seals in the hatches. The tarpaulins were not brand new       

as there were patches on them, contrary to the claim of North Front Shipping       

Services, Inc., thus making it possible for water to seep in. They also discovered       

that the bulkhead of the barge was rusty.     North Front Shipping averred that it could not be made culpable for the loss and       

deterioration of the cargo as it was never negligent. The captain of the vessel       

reiterated that the barge was inspected prior to the actual loading and was found       

adequate and seaworthy. The tarpaulins were doubled and brand new and the       

hatches were properly sealed. They did not encounter big waves hence it was       

not possible for water to seep in. He further averred that the corn grains were        farm wet and not properly dried when loaded. 

TC: DISMISSED ruling that the contract entered into between North Front       

Shipping and Republic Flour Mills was a charter­party agreement. As such, only       

ordinary diligence (inspection of the barge by the shipper/reps before loading,       

issuance of Permit to Sail issued by the Coast Guard) in the care of goods was       

required of North Front Shipping Services, Inc.     CA: ruled that a common carrier is required to observe a higher degree of       

diligence North Front 777 satisfactorily complied with all the requirements hence       

was issued a Permit to Sail after proper inspection.     ISSUE ON CONTRIBUTORY NEGLIGENCE: WON Republic Flour is guilty of             

contributory negligence as to the loss and deterioration of the goods?     HELD ON CONTRIBUTORY NEGLIGENCE: YES. SC found the consignee                 

Republic Flour Mills Corporation guilty of contributory      negligence. It was     

seasonably notified of the arrival of the barge but did not immediately start the       

unloading operations. No explanation was proffered by the consignee as to why       

there was a delay of six (6) days. Had the unloading been commenced       

immediately the loss could have been completely avoided or at least minimized.       

As testified to by the chemist who analyzed the corn samples, the mold growth       

was only at its incipient stage and could still be arrested by drying. The corn       

grains were not yet toxic or unfit for consumption. For its contributory negligence,       

Republic Flour Mills Corporation should share at least 40% of the loss.     HELD: North Front Shipping is a corporation engaged in the business of       

transporting cargo and offers its services indiscriminately to the public. It is       

without doubt a common carrier. As such it is required to observe extraordinary       

diligence in its vigilance over the goods it transports. When goods placed in its       

care are lost or damaged, the carrier is presumed to have been at fault or to have       

In document Plataforma Tecnológica Española de la Pesca y la Acuicultura (página 66-70)