PROBLEMAS ADMINISTRATIVOS EN UNA OBRA CIVIL

The ship owner has possession, control and management of the vessel and the consequent right to direct her navigation and receive freight earned and paid, while his possession continues; he is the person who is primarily liable for damages sustained in the operation of the vessel, based on the provisions of the Code of Commerce.

A ship agent is the person entrusted with the provisioning of a vessel, or who represents her in the port in which she happens to be [Art. 595, Code of Commerce].

The ship agent, even though he is not the owner, is liable in every way to the creditor for losses and damages, without prejudice to his right against the owner, the vessel and its equipment and freight [Aquino (2011)].

B.1. LIABILITY FOR ACTS OF CAPTAIN

(1) The owner of a vessel and the agent shall be civilly liable for the acts of the captain and for the obligations contracted by the latter to repair, equip, and provision the vessel [Art. 586, Code of Commerce].

(2) The captain shall be liable to the agent, and the latter to third persons:

(a) For all the damages suffered by the vessel and his cargo by reason of want of skill or negligence on his part;

(b) For all the thefts committed by the crew, reserving his right of action against the guilty parties;

(c) For the losses, fines, and confiscations imposed on account of violation of the laws and regulations of customs, police, health, and navigation;

(d) For the losses and damages caused by mutinies on board the vessel, or by

111 reason of faults committed by the crew in the service and defense of the same, if he does not prove that he made full use of his authority to prevent or avoid them;

(e) For those arising by reason of an undue use of powers and non-fulfillment of the obligations which are his;

(f) For those arising by reason of his going out of his course or taking a course which he should not have taken without sufficient cause, in the opinion of the officers of the vessel at a meeting with the shippers or supercargoes who may be on board;

(g) For those arising by reason of his voluntarily entering a port other than that of his destination;

(h) For those arising by reason of non- observance of the provisions contained in the regulations on situation of lights and maneuvers for the purpose of preventing collisions [Art. 618].

(3) The agent shall also be civilly liable for the indemnities in favor of third persons which arise from the conduct of the captain in the care of the goods which the vessel carried; but he may exempt himself therefrom by abandoning the vessel with all her equipment and the freight he may have earned during the voyage [Art. 587, Code of Commerce].

Note:The owner or agent shall not be liable for the obligations contracted by the captain if the latter exceeds his powers and privileges. However, if the amounts claimed were made use of for the benefit of the vessel, the owner or agent shall be liable [Art. 588, Code of Commerce].

B.2. DOCTRINE OF LIMITED LIABILITY

(HYPOTHECARY RULE)

STATEMENT OF THE RULE

The real and hypothecary nature of maritime law simply means that the liability of the carrier in connection with losses related to maritime contracts is confined to the vessel, which is hypothecated for such obligations or which stands as the guaranty for their settlement. It has its origin by reason of the conditions and risks attending maritime trade in its earliest years when such trade was replete with innumerable and unknown hazards since vessels had to go through largely uncharted waters to ply their trade. It was designed to offset such adverse conditions and to encourage people and entities to venture into maritime commerce despite the risks and the prohibitive cost of shipbuilding.

Thus, the liability of the vessel owner and agent arising from the operation of such vessel were confined to the vessel itself, its equipment, freight, and insurance, if any, which limitation served to induce capitalists into effectively wagering their resources against the consideration of the large profits attainable in the trade [Aboitiz Shipping Corp. v. General Accident Fire and Life Assurance Corp. (1993)]. Thus, under the doctrine of abandonment: (1) The agent shall be civilly liable for the

indemnities in favor of third persons which arise from the conduct of the captain in the care of the goods which the vessel carried, but he may exempt himself therefrom by abandoning the vessel with all her equipment and the freight he may have earned during the voyage [Art. 587, Code of Commerce];

(2) The owners of a vessel shall be civilly liable in the proportion of their contribution to the common fund, for the results of the acts of the captain, referred to in Art. 587. Each

112 part owner may exempt himself from this liability by the abandonment before a notary of the part of the vessel belonging to him [Art. 590, Code of Commerce].

(3) In case of collision, the liability of the ship owner shall be understood as limited to the value of the vessel with all her appurtenances and all the freight earned during the voyage [Art. 837, Code of Commerce].

(4) If the vessel and her freight should be totally lost, by reason of capture or wreck, all rights of the crew to demand any wages whatsoever shall be extinguished, as well as the agent for the recovery of the advances made [Art. 643, Code of Commerce].

If the ship owner or agent may in any way be held civilly liable at all for injury to or death of passengers arising from the negligence of the captain in cases of collisions or shipwrecks, his liability is merely co-extensive with his interest in the vessel such that a total loss thereof results in its extinction. This is based on the exclusively “real and hypothecary nature” of maritime law, which operates to limit such liability to the value of the vessel, or to the insurance thereon, if any. [Yangco v. Laserna (1941)]

Exceptions:

(1) Claims under the Workmen’s Compensation Act [Abueg v. San Diego];

(2) Expenses for repairing, provisioning and equipping the vessel;

(3) There is an actual finding of negligence on the part of the vessel owner or agent [Aboitiz Shipping v. General Accident Fire and Life Assurance Corp. (1993)];

(4) Vessel is insured, to the extent of the insurance proceeds [Vasquez v. CA (1985)]; (5) There was no total loss;

(6) Collision between two negligent vessels.

C. ACCIDENTS AND DAMAGES IN