☛ vessel engaged in maritime commerce, whether foreign or otherwise.
☛ constitutes property which may be acquired and transferred by any of the means recognized by law. They shall continue to be considered as personal property. (Art. 573, 585, Code of Commerce)
CHARACTERISTICS OF MARITIME TRANSACTION:
1) Real- similar to transactions over property with respect to effectively against third persons which is done through registration as shown by the limitation of the liability of the agents to the actual value of the vessel and the freight money; and the right to retain the cargo and embargo and detention of the vessel; and
2) Hypothecary- the liability of the owner of the value of the vessel is limited to the vessel itself (Doctrine of Limited Liability) PREFERENCE OF CREDITS - Mortgage of a vessel properly registered becomes of preferred Page 56
1 2 3 4
5
6 7 8 9
10
11 12 13 14 15 16 17 18 19
21
2022
23 24 25 26 27 28 29 30 31 32 33 34 35 36
37 38 39
40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 6162 63 64 65 66 67 68 69 70 71 72 73 74
75 76
77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95
96 97 99
98 100 101 102 103 104 105107
106108 109
110 111 112 113 114 115 116 117 118 119 120 121 122 123 4
mortgage lien which shall have priority over all claims against the vessel in an extrajudicial foreclosure for:
a. credit in favor of the public treasury;
b. judicial costs of the proceedings;
c. pilotage and tonnage charges and other sea and port charges;
d. salaries of depositaries and keepers of the vessel
e. captain and crew’s wages;
f. general average;
g. salvage, including contract salvage;
h. maritime liens arising prior in time to the recording of the preferred mortgage;
i. damages arising out of tort; and
j. preferred mortgage registered prior in time.
DOCTRINE OF LIMITED LIABILITY- Because of real and hypothecary nature of maritime law, liability of ship owners is limited to the amount of interest in said vessel such that where vessel is entirely loss, obligation is extinguished. (LUZON STEVEDORING VS. CA AND ESCANO, 156 SCRA 169) The interest extends to vessel’s appurtenances and equipment, freightage and insurance proceeds. (CHUA VS. IAC, 166 SCRA 183)
Exceptions:
1) injury or damage due to shipowner’s fault
2) claims under Workmen’s Compensation;
3) repair on vessel before loss;
4) vessels not abandoned;
5) the vessel is insured.
PARTICIPANTS IN MARITIME COMMERCE
1. shipowners and ship agents 2. captains and masters of the
vessel
3. officers and crew of the vessel
4. supercargoes
A. SHIPOWNERS AND SHIP AGENTS SHIPOWNER – person who has possession, control in management of the vessel and the consequent right to direct her navigation and receive freight earned and paid, while his possession continues;
SHIP AGENT – person entrusted with provisioning and representing the vessel in the port in which it may be found; also includes the shipowner;
CIVIL LIABILITIES OF THE SHIPOWNER AND THE SHIP AGENTS:
1) For acts of the captain and for the obligations contracted to repair, equip and provision the vessel
2) Indemnities in favor of third persons arising from the conduct of the captain in the care of the goods loaded in the vessel
POWERS, FUNCTIONS AND LIABILITIES OF THE SHIP AGENTS:
1) Capacity to trade
2) Discharge duties of the captain, in case of the latter’s absence
3) Contract in the name of the owners with respect to repairs, details of equipment, armament, and all that relate to the requirements of navigation
4) Order a new voyage, make a new charter or insure the vessel after obtaining authorization from the shipowners
5) Render an account of the results of each voyage
DUTY OF SHIP AGENT TO DISCHARGE THE CAPTAIN AND MEMBERS OF THE CREW:
☛ If the seamen contract is not for a definite period or voyage, he may discharge them at his discretion.
☛ If for a definite period, he may not discharge them until after the fulfillment of their contracts, except on the following grounds:
-insubordination in serious matters
-robbery -theft
-habitual drunkenness
-damage caused to the vessel or to its cargo through malice or manifest or proven negligence
B. CAPTAINS AND MASTERS OF THE VESSEL
THREE-FOLD CHARACTER OF THE CAPTAIN:
1) general agent of the shipowner;
2) technical director of the vessel;
3) representative of the government of the country whose flag he navigates
QUALIFICATIONS OF THE CAPTAIN:
1) Filipino citizen;
2) legal capacity to contract;
3) passed the required physical and mental examinations required for licensing him as such
INHERENT POWERS OF THE CAPTAIN:
1) appoint crew in the absence of ship agent;
Page 57 1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36
37 38 39 40 41 42 43 44 45 46
47 48 49 50 51 52 53 54 55
56 57 58 59
60 61 62
63 64 65 66 67
68 69 70
71 72 73 74 75 76 77 78 79 80 81 82 83 84
85 86 87 88
89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104
105 106
107
108 109
110 111 112 113 114
115
116 117 118 119 120
122
121 123 124 42) command and direct crew;
3) impose correctional punishment on those who, while on board vessel, fail to comply with his orders or are wanting in discipline;
4) make contracts for the charter of vessel in the absence of ship agent.
5) supply, equip, and provision the vessel;
and
6) order repair of vessel to enable it to continue its voyage.
SOURCES OF FUNDS TO COMPLY WITH THE INHERENT POWERS OF THE CAPTAIN:
(in successive order)
1) from the consignee of the vessel 2) from the consignee of the cargo 3) by drawing on the ship agent 4) by a loan on bottomry 5) by sale of part of the cargo DUTIES OF THE CAPTAIN:
1) bring on board the proper certificate and documents and a copy of the Code of Commerce
2) keep a Log Book, Accounting Book and Freight Book
3) examine the ship before the voyage 4) stay on board during the loading and
unloading of the cargo
5) be on deck while leaving or entering the port
6) protest arrivals under stress and in case of shipwreck
7) follow instructions of and render an accounting to the ship agent
8) leave the vessel last in case of wreck 9) hold in custody properties left by
deceased passengers and crew members
10) comply with the requirements of customs, health, etc. at the port of arrival
LIABILITIES OF THE SHIP AGENT/SHIP OWNER FOR ACTS DONE BY THE CAPTAIN TOWARDS PASSENGERS AND CARGOES, MAKING THEM SOLIDARILY LIABLE TO THE LATTER:
1. damages to vessel and to cargo due to lack of skill and negligence
2. thefts and robberies of the crew 3. losses and fines for violation of laws 4. damages due to mutinies
5. damages due to misuse of power 6. for deviations
7. for arrivals under stress
8. damages due to non-observance of marine regulations
NO LIABILITY FOR THE FOLLOWING:
1) damages caused to the vessel or to the cargo by force majeure
2) obligations contracted for the repair, equipment, and provisioning of the vessel unless he has expressly bound himself personally or has signed a bill of exchange or promissory note in his name
GROUNDS FOR DISCHARGE OF A CAPTAIN:
insubordination in serious matters robbery
theft
habitual drunkenness
damage caused to the vessel or to its cargo through malice or manifest or proven negligence B. OFFICERS AND CREW OF THE
VESSEL
The following are the officers and crew of the vessel:
1) Sailing Mate/First Mate 2) Second Mate
3) Engineers
4) Members of the crew
1) SAILING MATE/FIRST MATE
☛ second chief of the vessel who takes the place of the captain in case of absence, sickness, or death and shall assume all of his duties, powers and responsibilities.
QUALIFICATIONS OF THE SAILING MATE:
1) have the qualifications required by the marine or navigation laws and regulations
2) not to be disqualified in accordance therewith for the discharge of his duties
DUTIES OF THE SAILING MATE:
1) provide himself with maps and charts with astronomical tables necessary for the discharge of his duties
2) keep the Binnacle Book
3) change the course of the voyage on consultation with the captain and the officers of the boat, following the
Page 58 1
2 3 4 5 6 7 8 9 10 11 12
13 14 15 16
17 18 19 20 21
23
2224 25
26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47
48 49 50 51 52 53
54 55 56 57 58 59 60 61
62 63 64 65 66
68
6769
70 71 72 73 74 75 76
78
7779 80
81 82 83 84 85 86 87
88 89 90 91
92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112
114
113 115 116 117 118 119 120 121 122 4decision of the captain in case of disagreement
4) responsible for all the damages caused to the vessel and the cargo by reason of his negligence
2) SECOND MATE
5 ☛ take command of the vessel in case of the inability or disqualification of the captain and the sailing mate, assuming in such case their powers and responsibilities.
DUTIES OF THE SECOND MATE:
1) preserve the hull and rigging of the vessel
2) arrange well the cargo 3) discipline the crew
4) assign work to crew members 5) inventory the rigging and equipment
of the vessel, if laid up 3) ENGINEERS
C ☛ officers of the vessel but have no authority except in matters referring to the motor apparatus. When two or more are hired, one of them shall be the chief engineer.
DUTIES OF THE ENGINEERS:
1) in charge of the motor apparatus, spare parts, and other instruments pertaining to the engines
2) keep the engines and boilers in good condition
3) not to change or repair the engine without authority of the captain 4) inform the captain of any damage to
the motor apparatus 5) keep an Engine Book
6) supervise all personnel maintaining the engine
4) MEMBERS OF THE CREW
☛ hired by the ship agent, where he is present and in his absence, the captain hires them, preferring Filipinos, and in their absence, he may take in foreigners, not exceeding 1/5 of the crew.
CLASSES OF SEAMAN’S CONTRACTS:
1. by the voyage 2. by the month; and
3. by share of profits or freightage JUST CAUSES FOR THE DISCHARGE OF SEAMAN WHILE CONTRACT SUBSISTS:
1) perpetration of a crime
2) repeated insubordination, want of discipline
3) repeated incapacity and negligence 4) habitual drunkenness
5) physical incapacity 6) desertion
CAUSES OF REVOCATION OF VOYAGE:
1) war 2) blockade
3) prohibition to receive cargo at destination
4) embargo
5) inability of the vessel to navigate RULES IN CASE OF DEATH OF A SEAMAN:
The seaman’s heirs are entitled to payment as follows:
1) if death is natural
a) compensation up to time of death if engaged on wage b) if by voyage-half of amount if
death occurs on voyage out;
and full, if on voyage in
c) if by shares-none, if before departure; full, if after departure 2) if death is due to defense of vessel,
full payment
3) if captured on defense of vessel, full payment
4) if captured due to carelessness, wages up to the date of the capture NO LIABILITY UNDER THE FOLLOWING CIRCUMSTANCES:
1) if, before beginning voyage, captain attempts to change it, or a naval war with the power to which the vessel was destined occurs
2) if disease break out and be officially declared an epidemic in the port of destination
3) if the vessel should change owner or captain
COMPLEMENT OF THE VESSEL – all persons on board, from the captain to the cabin boy, necessary for the management, maneuvers, and service, thus including the crew, the sailing mates, engineers, stokers and other employees on board not having specific designations, but shall not include the passengers or the persons whom the vessel is transporting.
D. SUPERCARGOES
D ☛ person who discharges administrative duties assigned to him by ship agent or shippers, keeping an account and record of transaction as required in the accounting book of the captain.
Page 59 1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63
64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 4
CHARTER PARTY- contract by virtue of which owner or agent binds himself to transport merchandise or persons for a fixed price.
☛ contract by which an entire ship, or some principal part thereof is let by the owner to another person for a specified time or use.
(PUROMINES VS. CA 220 SCRA 281) CLASSES OF CHARTER PARTY (PLANTERS PRODUCT Case: LITONJUA SHIPPING CO. INC. vs. NATIONAL SEAMEN’S BOARD, 176 SCRA 189)
1. BAREBOAT OR DEMISE- charterer provides crew, food and fuel, charterer is liable as if he were the owner, except when such arises from the unworthiness of the vessel.
OWNER PRO HAC VICE –a bareboat charterer, to whom full possession and control of the vessel is delivered, for a period of time;
charterer is considered as owner of the vessel for the voyage or service stipulated. The master of the vessel is the agent of the charterer and not of the shipowner. The charterer, and not the general owner of the vessel is held liable for the expenses of the voyage including the wages of the seamen.
2. TIME CHARTER – vessel is chartered for a period of time or duration of voyage; owner retains possession and control of the vessel; charterer acquires the right to use the carrying capacity, facilities of the vessel and could designate destinations.
3. VOYAGE OR TRIP CHARTER- contract for hire of vessel for one or series of voyages usually for purposes of transporting goods for charterer.
4. CONTRACT OF AFREIGHTMENT- owner leases the boat or part of it for the carriage of goods.
RIGHTS AND OBLIGATIONS IN A CHARTER PARTY
A. OF THE SHIP OWNER OR SHIP AGENT
1) if the vessel chartered wholly, not to accept cargo from others
2) to observe represented capacity 3) to unload cargo clandestinely placed 4) to substitute another vessel if load is
less than 3/5 of capacity
5) to leave the port if the charterer does not bring the cargo within the lay days and extra lay days allowed 6) to place in a vessel in a condition to
navigate
7) to bring cargo to nearest neutral port in case of war or blockade
B. OF THE CHARTERER
1) to pay the agreed charter price 2) to pay freightage on unboarded
cargo
3) to pay losses to others for loading uncontracted cargo and illicit cargo 4) to wait if the vessel needs repair 5) to pay expenses for deviation RESCISSION OF A CHARTER PARTY A. At Request of Charterer
1) by abandoning the charter and paying half of the freightage
2) error in tonnage or flag
3) failure to place the vessel at the charterer’s disposal
4) return of the vessel due to pirates, enemies or bad weather
5) arrival at a port for repairs B. At Ship Owner’s Request
1) if the extra lay days terminate without the cargo being placed alongside the vessel
2) sale by the owner of the vessel before loading by the charterer PRIMAGE- bonus to be paid to the captain after the successful voyage.
DEMURRAGE – sum due, by express contract, for the detention of the vessel, in loading and unloading, beyond the time allowed in the contract of afreightment, and to any other improper detention or delay beyond the time set for loading.
SALVAGE- services one person render to the owner of a ship or goods, by his own labor, preserving the goods or the ship which the owner or those entrusted with the care of them have either abandoned in distress at sea, or are unable to protect or secure.
CONTRACT OF TOWAGE - contract whereby one vessel, usually motorized, pulls another, whether loaded or not with merchandise, form one place to another, for a compensation. It is a contract for services rather than a contract of carriage.
USUAL FORMS OF CONSUMMATING CONTRACTS:
1. C.I.F – cost, insurance and freight;
Page 60 1
2
3 4 5 6 7 8 9
10
11 12 13 1514 16 17 18
20
19 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 5052
51 5354 55 56
57
58
59
61
60 6263
64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94
95 96
97 98
99
100 101 102 103 104 105
106
107 108 109 110 111 112
114
113 115 116 117 118 119 120121 122
123124 4
2. F.O.B.- free on board;
3. F.A.S.- free alongside ship; and 4. C and F- cost and freight.
TRANSHIPMENT OF GOODS- act of taking cargo from one ship and loading it in another, if done without legal excuse, however, competent and safe the vessel into which the transfer is made is a violation of contract and infringement of right of shipper and subjects carrier to liability if freight is lost event by cause otherwise excepted (MAGELLAN MANUFACTURING vs.
CA , 201 SCRA 102)
LOAN OF BOTOMMRY- loan made by shipowner or shipagent guaranteed by vessel itself and repayable upon arrival of vessel at destination.
LOANS ON RESPONDENTIA – loan, taken on security of cargo laden on a vessel, and repayable upon safe arrival of cargo at destination.
COMMON ELEMENTS OF LOANS ON BOTTOMRY AND RESPONDENTS:
1) Exposure of security to marine peril 2) Obligation of the debtor conditioned only
upon safe arrival of the security at the point of destination.
FORMS OF A LOAN ON BOTTOMRY/RESPONDENTIA:
May be executed by means of:
1) public instrument
2) policy signed by the contracting parties and the broker taking part therein
3) private instrument
CONTENTS OF THE LOAN CONTRACT:
1) kind, name and registry of the vessel 2) name, surname and domicile of the
captain
3) names, surnames and domiciles of the borrower and the lender
4) amount of the loan and the premium stipulated
5) time for repayment
6) goods pledged to secure repayment 7) voyage during which the risk is run WHO MAY CONTRACT:
1) Bottomry – general rule: the owner; if owner is absent; captain;
2) Respondentia – only the owner of the cargo.
DISTINCTIONS : LOANS ON BOTTOMRY/RESPON
DENTIA
ORDINARY LOAN
1. Not subject to Usury
Law 1. Subject to Usury
Law 2. Liability of the
borrower is contingent on the safe arrival of the vessel or cargo at destination
2. Not subject to any contingency
3. The last lender is a preferred creditor
3. The first lender is a preferred creditor NOTE: Under existing laws, the parties to a loan, whether ordinary or maritime, may agree on any rate of interest. (CB Circular 905).
EXCEPTIONS TO THE HYPOTHECARY NATURE OF BOTTOMRY AND
RESPONDENTIA:
1) loss due to inherent defect;
2) loss due to the barratry on the part of the captain;
E 3) loss due to the fault of malice of the borrower;
F 4) that the vessel was engaged in contraband; and
G 5) that the cargo loaded on the vessel be different in form that agreed upon..
ACCIDENTS IN MARITIME COMMERCE (Averages, Arrival Under Stress, Collision, Shipwreck):
1. AVERAGES- an extra-ordinary or accidental expense incurred during the voyage in order to preserve the cargo, vessel or both;
and all damages or deteriorations suffered by the vessel from departure to the port of destination, and to the cargo from the port of loading to the port consignment.
CLASSES:
a. Particular or Simple Average
- expenses or damage cause to vessel or cargo not inured to common benefit and borne by respective owners.
- The owner of the goods which gave rise to the expense or suffered the damage shall bear this average.
b. Gross or General Average
Page 61 1
2 3 4
5
6 7 8 9 10 11 12 13
15
14 16 17 1819
20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 3536 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63
64 65 66
67 68
69
7071 72 73 74 75 76 77 7879 80 81 82 83 84 85 86 87 88
89 90 91 92
93 94 95 96 97 98 99 100 101 102103 104 105 106 107 108 109 110 111
4
- damage and expenses deliberately caused in order to save the vessel, its cargo or both from renal and known risk.
- All the persons having an interest in the vessel and the cargo therein at the time of the occurrence of the average shall contribute to satisfy this average.
REQUISITES:
1) common danger 2) deliberate sacrifice 3) success
4) proper formalities and legal steps PROCEDURE FOR RECOVERY:
1) There must be a resolution of the captain, adopted after a deliberation with the other officers of the vessel and after hearing all persons interested in the cargoes. If the latter disagree, the decision of the captain should prevail but they shall register their objections.
2) The resolution must be entered in the logbook, stating the reasons and motives for the dissent, and the irresistible and urgent causes if he acted in his own accord. It must be signed, in the first case, by all persons present in the hearing. In the second case, by the captain and all the officers of the vessel.
3) The minutes must also contain a detail of all the goods jettisoned and those injuries caused to those on board.
4) The captain shall deliver it to the maritime judicial authority of the first port he may make, within 24 hours after his arrival, and to ratify it immediately under oath.
ORDER OF GOODS TO BE CAST OVERBOARD IN CASE OF JETTISON:
1) those which are on the deck, preferring the heaviest one with the least utility and value
2) those which are below the upper deck, beginning with the one with greatest weight and smallest value 2. ARRIVAL UNDER STRESS- arrival of vessel
at a port of destination on account of lack of provision, well founded fear of seizure, pirates, or accidents of sea disabling navigation.
When not lawful:
a. lack of provisions due to negligence to carry according to usage and customs;
b. risk of enemy not well known or
b. risk of enemy not well known or