Transpo Law Midterms

Transportation Law Notes (Midterm)

2013

Art. 1732. Common carriers are 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. (NCC) We were talking about consideration in in a contract of carriage. You know actually that 1732 did did not require money. It just mentioned about compensation. It is very important insofar as our subject is concerned. I’m sure you have noticed that there is a mode of transportation that carries passengers from Chong Hua Medical Arts to Fuente Osmena and there is also one in IT Park. So I’m sure that that kind of transportation is for free and you don’t pay any money. Can you argue then that the owner of the vehicle is NOT a common carrier? 

Of course, you can actually say that 1732 does not require any money as compensation. By compensation, it means that compensation may be in any other forms which ar e NOT NECESSARILY MONEY.



You can also use the one involving 1758 that the stipulation limiting the carrier’s liability, that even if the carriage is gratuitous or of reduced fare, is valid. o

1758 NCC: When a passenger is carried gratuitously, a stipulation limiting the common carrier’s liability for negligence is valid, but not for wilful acts or gross negligence.The reduction of fare does not justify any limitation of the common carrier’s liability.

Okay. Let’s discuss on the perfection of contract because once there is a perfection of contract of carriage, I’m sure you know what are the implications. So, you have 3 cases there: [1] carriage jeepney [2] carriage of train and [3] carriage of airplane. You will notice in DANGWA TRANSPORTATION case that the victim was in the platform of the bus when there was a sudden acceleration. The contention raised in the SC was that insofar as the driver and conductor were concerned, they had no idea that the victim had the intention to ride on the bus. There was no manifestation of the intention to board the bus. Why is it that the petitioners DANGWA contended that there was no manifestation of the intention to board? 

Because they want to prove that there was no meeting of the minds between the two parties which is needed in a contract of carriage.

BUT meeting of minds can be of different forms. It can be express or constructive. There are a lot of disputes when you talk about CONSTRUCTIVE MEETING OF THE MINDS. I’m sure you will remember your sources of Obligation in ObliCon. One of the sources is CONTRACT. So you might have an idea about tort, negligence or quasi-contract. But with respect to Transportation Law, it is basically about contracts as a source of obligation. In a contract, there are parties and there can only be parties to a contract if there is a perfected contract of carriage.

Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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Back to DANGWA, the SC said that once a public utility bus stops, it is, in effect, making a continuing offer to bus riders. Remember that in meeting of minds, there is a continuing offer of the common carrier to the passenger by stopping the bus and that offer by the common carrier is accepted by the passenger by boarding the bus. Therefore, it does not matter whether that person is touching the bus, or has one foot on the platform, or whether the person has found a place inside the bus for as long as there is an acceptance of the offer once the je epney or bus stops. But what if the bus did not stop but was only moving in slow motion and it did not make a full stop? Then you have to take note of the specifics. Because it would be unfair for the common carrier because the driver could only be struggling at a slow pace due to the traffic and it was on the right part of the road and then somebody suddenly ran towards the jeepney and on his attempt to board the jeepney was not able to hold and he fell. Is the owner of the jeepney liable? Of course not. Because there has to be meeting of the minds. But if it can be established by evidence (testimonies lang kay wala may documents to support) that probably the driver saw the person running and the driver slowed down or the conductor was calling the passenger to run faster so he can catch up, then in that case, it is established that there is meeting of the minds. IT IS NOT NECESSARY THAT THE BUS OR JEEPNEY HAS TO MAKE A FULL STOP. But when a bus or a jeepney makes a full stop, cite the case of DANGWA. Does it matter that the stopping sto pping of the jeepney or a bus occurred at the proper place for loading passengers? IT DOES NOT MATTER. As long as it can be shown that there is an offer from the driver or conductor and that it was later accepted by the person who wanted to board the vehicle. So you cannot call that person a passenger unless there is a perfected contract of carriage.

Now, what about in airplanes? The case of KOREAN AIRLINES vs CA is relevant here. Do not be contented only with the fact that Lapuz here, the passenger, was allowed to check in the suitcase and one shoulderbag. The court here went further aside from the check in of the suitcase. “Lapuz passed thru customs and immigration for routine checkup, cleared for departure, rode in the shuttle bus and proceeded into the ramp for boarding.” So Lapuz here did not actually board the airplane. He was just in the ramp going up to the airplane. And it was on that very moment that he was barred from taking the flight. QUESTION: What if he was in the terminal and something happened to him when he was in the terminal. Can he blame the carrier for any injuries caused to him? NOT NECESSARILY especially that normally the owner of the common carrier is not the owner of the terminal. For example, airports: MCIA is the owner of the terminal. So if something happens to him, he can sue MCIA. But probably, you checked in Philippine Airlines. After that you were heading through one of the tubes in going to the airplane. If something happens to you, you can actually sue the common carrier as well as the owner of the terminal. Why is this important, you might ask? Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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Back to DANGWA, the SC said that once a public utility bus stops, it is, in effect, making a continuing offer to bus riders. Remember that in meeting of minds, there is a continuing offer of the common carrier to the passenger by stopping the bus and that offer by the common carrier is accepted by the passenger by boarding the bus. Therefore, it does not matter whether that person is touching the bus, or has one foot on the platform, or whether the person has found a place inside the bus for as long as there is an acceptance of the offer once the je epney or bus stops. But what if the bus did not stop but was only moving in slow motion and it did not make a full stop? Then you have to take note of the specifics. Because it would be unfair for the common carrier because the driver could only be struggling at a slow pace due to the traffic and it was on the right part of the road and then somebody suddenly ran towards the jeepney and on his attempt to board the jeepney was not able to hold and he fell. Is the owner of the jeepney liable? Of course not. Because there has to be meeting of the minds. But if it can be established by evidence (testimonies lang kay wala may documents to support) that probably the driver saw the person running and the driver slowed down or the conductor was calling the passenger to run faster so he can catch up, then in that case, it is established that there is meeting of the minds. IT IS NOT NECESSARY THAT THE BUS OR JEEPNEY HAS TO MAKE A FULL STOP. But when a bus or a jeepney makes a full stop, cite the case of DANGWA. Does it matter that the stopping sto pping of the jeepney or a bus occurred at the proper place for loading passengers? IT DOES NOT MATTER. As long as it can be shown that there is an offer from the driver or conductor and that it was later accepted by the person who wanted to board the vehicle. So you cannot call that person a passenger unless there is a perfected contract of carriage.

Now, what about in airplanes? The case of KOREAN AIRLINES vs CA is relevant here. Do not be contented only with the fact that Lapuz here, the passenger, was allowed to check in the suitcase and one shoulderbag. The court here went further aside from the check in of the suitcase. “Lapuz passed thru customs and immigration for routine checkup, cleared for departure, rode in the shuttle bus and proceeded into the ramp for boarding.” So Lapuz here did not actually board the airplane. He was just in the ramp going up to the airplane. And it was on that very moment that he was barred from taking the flight. QUESTION: What if he was in the terminal and something happened to him when he was in the terminal. Can he blame the carrier for any injuries caused to him? NOT NECESSARILY especially that normally the owner of the common carrier is not the owner of the terminal. For example, airports: MCIA is the owner of the terminal. So if something happens to him, he can sue MCIA. But probably, you checked in Philippine Airlines. After that you were heading through one of the tubes in going to the airplane. If something happens to you, you can actually sue the common carrier as well as the owner of the terminal. Why is this important, you might ask? Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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Well, are we at liberty on whom to sue? It might be convenient on your part to sue the common carrier rather than the owner of the terminal. Why? Because later on, you will learn that it is convenient if the contract is a contract of carriage because of the presumption of negligence. EXAMPLE: When you are suing MCIA, you have have to prove that MCIA was negligent. But if you sue PAL, then there is a presumption of negligence and you need not prove the presence of negligence on their part. Of course the common carrier’s defense would be that on the way to the airplane, you were not yet their passenger. Have you not noticed that when you are in the terminal, and you are sitting there in the waiting area, you are not called ‘passengers’. You are called ‘guests’. Why is it that the common carrier evades calling you a ‘passenger’? Because the common carrier knows the obligations of calling you a passenger. It might come in your mind that you have rights as passengers and if you have rights, you have obligations. Even when you are in the plane, you are still called guests. Siguro, if they call you passengers, nasayop ran a sila. (laughter). If you are the lawyer of the common carrier, you advise the carrier to not call them passengers.

CARRIAGE IN TRAIN You have LRT. In our city, we don’t have LRT but we will soon have BRT or Bus Rapid Transit from Bulacao up to Talamban. And one of the plans is the use of electronic tickets. So it might happen in the future that we would apply the case of LRTA vs Navidad because in this case, Nicanor Navidad was not yet able to enter in one of the coaches of the train. He was just waiting for his train on one of the platforms BUT he had the token. Why is it important to know whether he had the token or not? Because the intention is very important in a contract of carriage. Why? Kung musulod man gani ka ug train unya nagpalusot ka, niambak lang ka dayon wala ka nibayad, remember that it can be contended that you are not a passenger of the common carrier… you ar e a stowaway. EXAMPLE: Nitago lang ka in the place for the cargoes because wala kay kwarya ikapliti.. If you have no intention to pay, you cannot be considered a passenger. HOWEVER, we do not have any case law to support that conclusion. BUT, we have US cases to support it. If you have no intention to pay, you are not a passenger; you are a STOWAWAY. This was asked in the bar exam (stowaway). There is a situation in the bar exam: One is the mistress of the driver, one had free pass tickets and the other is a STOWAWAY. Nadisgrasya. First question: Is there a perfected contract of carriage? Tagsa-tagsahon pa na nimo ug identify ang kada tawo whether or not passenger ba kana siya.


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A stowaway is NOT a passenger because there is no intention to pay. For instance, in the case of LRTA, he was not standing in the platform but he was in the CR and the altercation between the guard and Nicanor is in the CR. Is he still a passenger? YES! I believe so because he was in the right place. It does not mean that if you are a passenger, you don’t have the right to use the CR. In fact, the very reason the CR is there is so that it can be used by the passenger. “The contract of carriage, for the Court, in Natividad, already existed when the victim entered the place where the passengers were supposed to be after paying the fare and after getting the corresponding token.” But you can also ask, for example, if he used the CR for almost 1 hour, you can ask what the reason is for his long use of the CR. Because it is very uncommon for the passenger to use the CR for a long period of time. So it depends on the circumstances of each case, ha? CONSIGNEE AS A PARTY EVERETT STEAMSHIP case. The consignee is NOT a signatory nor a party to a contract. HOWEVER, the consignee becomes a party when he demands fulfilment of that stipulation in the bill of lading. Example: Instead of the shipper demanding for delivery to the consignee, the consignee demands from the carrier to deliver the things. In the case of EVERETT, the demanding of the fulfilment was manifested by the formal claim AND the subsequent filing of the case. QUESTION: Is it not enough just to make a demand to make the consignee a party to the contract? You can actually expand from that particular angle. I’m not saying that the SC is requiring you to file a case for the demand. It just so happened that in EVERETT, there was demand AND filing of the case. The mere filing of the case can be considered by the SC that the consignee already became a party due to the filing of the case. In the case of NOF vs Shin Yang, citing Mendoza vs PAL, the consignee sued the carrier for damages. And when the consignee claimed later on that it was not a party to the contract, the SC ruled that the consignee was already considered a party. Let us move on. CARRIER Take a look at 1732: Art. 1732. Common carriers are 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. It uses the word “transporting” but there is no mention of transportation from one place to another. Wala. Why did I ask that? Ferris Wheel, Carousels and Roller Coaster. Is the owner of these machines a common carrier? The owner might argue that it was NOT a common carrier because the passengers are not being transported from one place to Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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another. You start from one place and end up in the same place. Is there transportation? No jurisprudence yet because in cases here in the Philippines, the users of these machines have no money to sue. So ang mga owners of these machines don’t care about safety. In the US, however, there is a case involving Disneyland where the passenger of the Indiana Jones ride was brain damaged due to the shaking. One of the defences of the owner is that it was not a common carrier because you start from one place and end up the same place. The Court said that it does not matter whether you are transported to a different place. There is no importance whether the purpose is for recreation and not transportation. When this happens in the Philippines, the argument in the above US case may be used in the argument. In the same manner, you can also add that in cases like that, greater protection must be afforded to those who want to use the amusement park. Because if you don’t afford greater protection, then the owner of the park can just escape liability.

In our law, there is no mention of the phrase “from one place to another”. However, in the case of Sps. Pereña vs. Sps. Zarate, a carrier is defined as a person or a corporation who undertakes to transport goods or persons from one

place to another. Take note the Article 1732 of the Civil Code does not mention about gratuitous carriage. In this case of Pereña, the SC said “from one place to another gratuitously or for hire”. This means that even if you don’t pay fare because you are carried gratuitously, the owner of the vehicle can still be considered a common carrier. These are some indicators of a common carrier:

1. Plate Numbers: General rule: if it’s yellow, it is public transportation. Exception: if it is a yellow taxi, because their plate numbers are crafted in a way that would be

inviting to tourists. 2. You can demand as a matter of right General rule: when you want to ride and there is still enough space, you can demand as a matter of

right that you will ride. Example: when you take a taxi, the driver is not supposed to ask you where you are going to because that is their obligation; the obligation of the carrier to bring you to your destination as long as it is within the jurisdiction or of the permit given. You can assert as a matter of right that you be transported to your destination. You can demand as a matter of right with respect to a common carrier. Exception: when you are carrying something that is prohibited or your destination is beyond their

‘area of responsibility’ (beyond their franchise?)


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Q: What determines a carrier as common? A: It is the act of offering your services to the public, to a few selected parties, etc. IT IS THE ACT. It is not determined by: -

whether you are engaged in the business of transportation (for as long as you transported, or offered services)

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whether you have no fixed route

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possession or no possession of certificate of public convenience

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licenses

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contract between parties Example: If the character of the carrier is based on the contract of the parties Imagine a charter party (contract of lease). If the owner of the vessel leases the vessel to a charterer, and in their contract, the charterer will solely liable for damages that is caused to anybody in relation to your business. Here comes the charterer, acting like a common carrier. Can the owner use that contract they have with the charterer saying that I’m not liable because as was written in the contract? No. because that is what the law imposes upon anybody who acts as common carrier. Colorum vehicles Happens usually in piers. When you have so many baggages, some taxis refuse to accommodate you. Here comes a private vehicle offering its services to transport you. Even without license, they charge you a certain amount. In law, the owner of that truck or private vehicle is considered as common carrier.

The importance of De Guzman vs. Court of Appeals

In De Guzman, the SC said that the moment that person acts as a common carrier, regardless of the statute and the CTC granted, liability arises under the new Civil Code. It’s the act, it’s the offering made by that pe rson. In De Guzman, it was stressed that Article 1732 does not make any distinction between one whose business activity is carrying persons or goods from one who does such only as an ancillary activity. It also does not matter if you only have a small business and/or you only have few customers ( Bascos vs. Court of Appeals). Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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It doesn’t matter if you don’t have a fixed route or you don’t have terminals. It doesn’t matter if you don’t issue tickets ( Asia Lighterage & Shipping, Inc. vs. Court of Appeals). Besides, you would not want to reward them if they don’t issue tickets, right? Customs Broker as Common Carrier?

Per se, a customs broker is not a common carrier. A customs broker calculates the customs and tarrifs that should be paid. However, in the cases of A.F. Sanchez Brokerage vs. Court of Appeals and Calvo vs. UCPB General Insurance Terminal Services , aside fom being a customs broker, they also undertook the delivery, conveyance, and

transportation of cargo to the consignee. So it is the act now of conveying or transporting to the consignee that makes this customs broker as common carrier.

Travel agents as common carrier?

Travel agents, they arrange tickets, tours, that’s what they do. It’s a contract of services. In the case of Crisostomo vs. Court of Appeals , according to the court, traveling agents, is not a common carrier. But the moment

the travel agent conveys those persons who avail of their services from one place to another, then the travel agent becomes a common carrier. In the case of spouses Cruz vs. Sun Holidays, package tour, one of the destinations is a beach. Included in their package tour is that they will transport the “guests” to the beach. The court said that they are a common carrier because they transport persons from one place to another. You see? It is the act of transporting.

Ownership of vessel

In the case of Cebu Salvage Corporation vs. Phil Home Assurance Corporation , Cebu Salvage’s argument was: “I do not own the vessel. Therefore, I am not a carrier.” The Supreme Court ruled that ownership does not negate its character as a common carrier. Why? Because it would be difficult or impossible for the general public to enforce it s rights if the public hast to inquire who the owner of the vessel is. The SC also said that it will derogate the common carrier’s diligence. The court said, even if you are not the owner, as long as you act, offering services of transportation, you can be considered as a common carrier.

Private carrier

In the case of Home Insurance Co. vs. American Steamship Agencies, Inc ., it did not focus on the character of the carrier. It’s more on the validity of the stipulation. But if you look at it closely, the validity of the stipulation depends on your character as a carrier. Why? Because if you stipulate that as a carrier, you will not be liable for Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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negligence of the employees, etc, if you are a COMMON CARRIER, that is NOT a VALID stipulation. But if you are a PRIVATE CARRIER, that can be valid. So the validity of the stipulation is dependent upon the nature and the character of the carrier. Anyway, in Planters Products Inc. vs. Court of Appeals , the SC said, we cannot rely on Home Insurance because at present, there is a need for greater protection as far as the public is concerned. In the case of Unsworth Transport International (Phils.), Inc. vs. Court of Appeals , it involves a freight forwarder. A freight forwarder’s job supposedly is to arrange for transportation. However, in this case, petitioner also undertook to transport. The Supreme Court is making a ruling insofar as the circumstances in the case is concerned. Whether its private or it’s common. But it actually depends on the circumstances of the case. But the trend now is most of them are common carrier.

Did we distinguish the functions of arrastre, stevedoring? Not yet sir. Me too, I have difficulty in concurring with the author that towage is not the same as carriage. Bec Whether we like it or not that is conveyance or carr iage of one boat from one place to another in towage. Unsa mai deperensya lang sa towage? Technically wa siya g alsa..If something is not pulled Or carried, technically it cannot be considered towage. Bec that would be asurd, like if you have trucking business and you don’t put goods inside the truck but you pull something using the truck, can you say that it is not the contract of carriage? Yes sir. Anyway that is what the author said and there is no jurisprudence to contradict that one. Now, what about arrastre and stevedoring functions? I mention about the holds of the vesselthat is what you call the ship’s tackle. Actually we will delved into the discussion of the ship’s tackle once we reach the discussion on COGSA or Carriage of Goods by Sea Act. Kanang tackle, kanang gigamit sa maritime law, it is the side of the vessel. Kilid sa vessel ba. Physical side of the vessel and tawag ana kay ship’s tackle. Meaning, there are goods place at the side or at the ship’s tackle. When goods are being transported going to the hold or holds of the vessel, that is the work of stevedores. If there is transportation within the holds of the vessel, that is the work of stevedores. That is not the work of arrastre. But when we talk about arrastre, its function is from the ship’s tackle to the warehouse of the shipper or the warehouse of the consignee or within the port going to the ship’s tackle or the ship’s side. Mao nay deperensya nila. But our book says, that is not also contract of carriage. Even if there is movement, there is conveyance, gamit gud na siya ug sakyanan, but no jurisprudence as of now that kind of transpo arrastre and stevedoring are contract of carriage. So, you might as well be contented with that in the absence of jurisprudence. So, those are the three basic concepts: Towage, Arrastre, and Stevedoring. Now, please note, kadtong issue on bus operatior, travel agency, freight forwarding, that is the case of UPI, katong case sa spouses Cruz, Sun Holiday, the decision of the SC that freight forwarding is a contract of carriage. Sun Holiday case that is also a contract of carriage. Bus operator there is also a contract of carriage bec of the undertaking to transport; which undertaking was not found by the SC in a travel agency in the case of Crisostomo vs. CA. That means if you will be ask whether if it is a contract of carriage, you have to look into the aspect of undertaking to transport passengers, or goods or both. Do not immediately conclude bec you have read Crisostomo that a travel agent could Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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not become a common carrier. Travel agent can become as long as it undertakes to transport. K? Undertaking to transport. Now, let me emphasize also charter party. What is charter party? It is a contract of lease. It so happen in maritime law, it is called charter party. But, basically, the terms and conditions are like a contract of lease. Now, we talk about charter party in relation to the nature of the carrier. You only use the case of Planters Products and all other applicable cases if you will be ask what is the effect of charter party on the nature of the carriage. Such that if the charter party is bareboat, or demise charter, then SC said the common carrier becomes a private carrier. But if the charter party is a contract of affreightment, a time charter or voyage charter, the common carrier does not become a private carrier. But in reality, I don’t believe in such distinction. Why? Because a bareboat charter could be at the same time a contract of affreightment. Ngano man? If you are the owner of the vessel, musugot ka imong vessel abangan ug lain. Ang mu drive or navigate kai wa ka kaila sa ship captain or engr na mu take charge sa imong vessel. No. Bec in most charter party, I lease imong vessel but the owner will take control over the vessel bec they don’t want to give way the control kai mahadlok sila maguba ang barko. That is why in reality kani sila pwede ma mix: bareboat ug contract of affreightment. But for purposes of theory, you use Planters Products on the effect of charter party on the nature of the carrier. But in reality it is the act itself, the act of undertaking to transport that would determine whether common or whether private. Is it necessary that the act must be repeated? The law is silent. Infact there is indication in the law, that you act twice, thrice, several times or so long as you acted to transport, you can be considered as common carrier under the law. But there is no jurisprudence saying na ika usa, ikaduha or more than two ka mu act for you to be considered as common carrier. No jurisprudence yet. Now, regarding Kabit System, please don’t forget to study Lim vs. CA. So we know the principle that if two parties engage in kabit system and the vehicle figured in an accident, nya gikiha ang registered owner nya pilde ang registered owner nya naay order to be served by the sheriff, and served upon the former. Can the reg owner say, I am not the owner, bec I have sold this to another? SC said it cannot be a valid defense. Thus, the vehicle could still be subject to execution. If the parties are in pari delicto, example, A is a holder of a CPC and B has modes of transpo . naa siyay vehicle. Wa siyay CPC. Is it possible nga walay CPC? Yes. Especially sa atong jurisdiction, we have 5,000 taxi units. Sa atoh pa, walay available na CPC. Infact nagkasohay na bec of issuances of CPC. Anyway, uhm, we have been hearing cases. Right now, it is possible nga mu-proliferate ang Kabit System kai wala may CPC. Sa atoh, B will use the CPC of A but ang mu operate si B. How is it done? The govt agency do not allow that one unless, the mode of transpo is transferred in the name of A. Sa atoh pa, maghimu sila ug fictitious deed of sale. Ang vehicle ni B, ibalhin ni A. Nya muingon dayon si A: oyy karaan naman ni akong sakyanan, dapat ilisan ni nako. Kanag modern, kanang VIOS ba ron. Altis ba. Oyy bag o ang sakyanan ni B. Gamit ka sa akong CPC. Execute ug deed of sale. Then, eventually ma transfer ang registration sa vehicle sa name ni A. But ang mu operate si B. K? Karon si B muingon: A di nako ganahan ug taxi, i-uli na ni nako ang sakyanan. Mag execute ta ug deed of sale. Nya d naman i-uli ni A. So mu sue si B. But B cant recover bec they are in pari delicto. But in Lim vs. CA, kabit system ang private respondent. While being in operation, nabangga with another vehicle owned by Lim. Lim was not a party to the kabit system. Owner siya sa vehicle nga nabanggaan sa vehicle which is covered by the kabit system. Ingon si Lim, you cannot file a case against me for damages bec you are involved in a kabit system. The court said, what is the reason or policy behind this Kabit system is to protect the passengers and the public. Now if we allow Lim’s argument to be sustained, then di na ka recover


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ang person who suffered damages. That is the reason why the SC did not apply the concept of kabit system in the case of Lim vs. CA.

Now, what about the case of FEB Leasing and Finance Corporation? About registered owner. Take note, in that case there was a provision in the contract exonerating the reg owner from liability. Kabaw man ta nga ang reg owner rule is the exception to the law involving common carrier. Why? Remember, in registered owner rule, dili ang tawo nga nag act as common carrier mao imong ikiha. It is the registered owner. But actually in reality you can sue both. Ikiha nimo ang operator for having acted as common carrier and the reg owner. And let them fight themselves. You can use 1732 when you sue the operator and the reg owner using the reg owner rule. So in that case, you have this contract of lease, there is that provision exonerating the reg owner from all liability, the court said, that cant be done. Otherwise ma thwarted imong purpose sa reg owner rule. Reasons of public policy and that was just based on contract. So clear nata sa Chapter 1 ha? Hopefully ha. Then we move to Chapter 2. There are different obligations: duty to accept, duty to deliver and duty to exercise extraordinary diligence. First duty is to accept. This duty to accept is the basis ngano magdala ta ug mananap, iro, tanum, isda, kinahanglan ta ug clearance from the different govt agencies. That means if you don’t have that clearance, t he carrier can discriminate. First duty is to accept. This duty to accept, this is the basis nganu mgda kag mananap, tanom, isda, kinahanglan kag

clearance from the different government agencies, that means if you don’t have that clearance, the carrier can discriminate. Mao nai gitawag na without discrimination , such that there can be discrimination by the carrier provided that it is a reasonable discrimination . How is that manifested? In the form of clearances .

Take note, there is no more clearance when you transport a vehicle from one port to another. Kung naa dai kai sakayanan, I’m sure you remember the port, muad2 kag Bohol, dala kag sakyanan imo ngayo kag clearance from the management jud, but because of corruption, that was abolished. So karon, bisag asa ka byahe, pa Mindanao dala kag sakyanan hala bayad dyn ka, wlai clearance, because the agency was accused of graft and corruption. But the rest, as is. Now, this is also the basis, the duty to accept why taxi units, taxi drivers will be penalized for refusal to convey passengers or persons. Sample, gikan kag skwelahan, para kag taxi, mangutana ang driver “asa ka padung?” lami ky ingnon ba, “nganu ngutana mn ka?” It is not important that the driver should ask because it has the duty to accept . If the driver ask that and when you tell the driver you are heading to Lapu2x, and the driver says, “d ko muadtog Lapu2x ky muadto kog Pardo”. The driver can be penalized for not accepting the person for transport. But caution lang, even if you know that that is the law, be careful, because drivers might have guns, deadly weapons. So even if kbw ka sa balaod, hinai2x lang. (Question ni brentoi) What if 10’oclock niya iuli ang taxi, sir? Pwede ra murefuse ang driver? (Answer ni sir) It’s a question of intention, how is that intention manifested? Nig para nimo, nihunong ang driver, ang paghunong is a Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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manifestation of the intention na pasakyon jud ka niya. So the driver cannot say “padung na ko garahi”. If padung ka garahi wa ta ka nihunong. But do not be surprised ha (this is of the record), basin inyo nya kong basulon kung mgkita nya ta ky akong rason lahi sa akong gitudlo. Because I have clients who are common carriers and what I may be teaching here may be different when I give reasons when drivers as my clients are complained of because of the contract. (Laughter) What about if goods are improperly packed? Ibutang ta na as one of the exceptions. Actually, the carrier is not precluded from asking as to the nature of the goods. If there were representations on the part of the shipper,

pananglitan box ang karga, sealed, mangutana ang driver, assuming mangutana ky kasagaran driver d mn mangutana, pasahero mai pangitaon, assuming in theory mangutana “unsa mai sud ana?” Ingon nga “ahh, kuan ra ni xa mga panapton”. The driver may rely on the representation, may not inquire further, d na muingon ang driver “uy pwede ukbon?” Dili na knahanglan, but the driver may ask further questions and assuming ang shipper mutubag and musugot then that’s alright. But if the shipper refuses to allow further inquiries from the driver, then the shipper is justified in forcing the driver the he should carry the goods. There is no jurisprudence on that, but I am relying on

the opinion in the case of Nocum vs. Laguna Tayabas. Ang kaso nga Nocum sakit kaayo, naai gikarga nga box inside the bus, ang sud panapton, nibuto ky firecrackers diay ang sud. Ingon ang SC you are not allowed to inquire further kung unsai dili nato makita. Nganu mn? Because that will violate the right on the part the shipper. You can rely on the outward manifestation of the goods. By example, improperly packed or defective containers may be refused.

That is with respect to duty to accept. Duty to deliver, second obligation. I think you have read Maersk line vs. CA, and this is the basis of airline companies,

shipping vessels, na muadvertise cla: ETD, ETA (Estimated Time of Departure, Estimated Time of Arrival). What does that mean? The carrier did not contract on a particular or specific time of departure, specific time of arrival. The clients have been asking me, “Glenn, why can’t you sue airline companies, we’ve been delayed in our travel for 2-3 hours?” Because there is no specific contract, thus the word “estimated”. Aside from that, there is a provision in the agreement, electronic ticket, bill of lading, passenger’s ticket, that schedule of departure, schedule of arrival may be changed by the carrier without need of further notice. So d ka maigo sa estimated, ari ka maigo sa agreement, nganu man? Because remember, transportation is basically a contract. So generally, what you have agreed upon, that is the law between parties. Kung mag minaro jud ka, I’m not saying na inyo ning buhaton, d ka kakiha sa carrier

because of the ETD, ETA, but muinquire sa staff unya d ka itreat courteously, or idiscriminate ka, you can sue the carrier but not on the duties but still a source of obligations, for damages. We will discuss that later on Warsaw Convention. Warsaw Convention is one of the frustrations of airline companies. Why is there a Warsaw Convention? Because airline companies would want to limit liability. Mao na ang countries agree cla, arun ikaw kung mamatai ka, or imong luggage mawagtang, limit ang liability. Ang airline company makaobject lang daan, “ahh ikaw wa ka nideclare” na imong laptop naa dy sa sud sa imong luggage, inig ka guba sa imong laptop, unsai naa sa ticket mao rai imong limited liabilities, you can’t claim more than what is stated in the limited liability. In all cases of Warsaw convention, kausa ra jd nahitabo na ang SC niingon na limited liability that is correct, kasagaran wa gyud giapply ang limited liability. Nganu mn? SC, ah hang passahero gitawag ug unggoy, damages, no limited liability. Pasahero treated differently ky xa puti xa nya ikaw brown ka, damages, no limited liability. Let me emphasize this, what are the effects of delay? Take note that we are talking about unreasonable delay , or delay na unjustifiable. There are two effects. One is under Art. 1740, that means natural disaster shall not free the Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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common carrier from liability. Pananglitan, barko pagngan makina, nganu mn? Wa gyud ka anticipate ang ship captain, na delay. Assuming lang, nglinog unya ng tsunami, nalunod ang barko. D mkaingon ang carrier na ang cause ky tsunami. Under 1740, natural disaster shall not free the common carrier from liability if the carrier was guilty of delay, unjustifiable . Ang problema dha, how you will prove that it is unjustifiable. The second effect is Art. 1747, limitation of liability cannot be availed of. Kasagaran sa contract, naa jud nai limited liability. As I’ve said, ma injure

ka, mawagtang imong luggage, naai limited liability unless nideclare ka. If the common carrier is guilty of unjustifiable delay, then the common carrier cannot use limited liability. Asa na mo sa Rules of Court, Civ Pro? Wa pa moi Rule 8? (Wa pa sir). Ok, exercise of extraordinary diligence , when does the duty to exercise start? The relevant case is Compania Maritima. Na bisan ug naa pa sa lighter, preparatory pra ibutang ang goods ngadto sa freezer that will carry the

goods to the place of destination, the SC said that the goods have been placed already unconditionally in posession by carrier. Therefore it was duty bound to exercise extraordinary diligence. What about termination of that duty? I hope you have read Delsan transport, ingon ang SC na bisan pag portion of the fuel nasud na sa tank, but wala pa gyud nhurot ug sud sa tanke ky ni back flow unya na spill na sa dagat, niingon ang SC, the duty still exist. You might ask, why is it important to know that there is still that duty? Because remember presumption of negligence, that means, if there is LOSS, DAMAGE, DETERIORATION (LDD) of goods, there is a presumption of negligence, and if there is a presumption, therefore, there is no need on the part of the shipper or the passenger to prove negligence.

Mao na niingon ang several cases decided by the authors, ug naai demurrer to evidence filed after nirest sa case ang plaintiff unya wlai proof showing negligence, SC said there is no need to show proof of negligence, why? Because it is presumed, so what will you show aron muarise ang presumption? The contract first. You establish that there was contract, how will you establish contract? Ticket, kung wlai ticket, bill of lading. Kung wlai ticket, or bill of lading, testimony will actually suffice. Pananglitan ang nisakai sa barko wa na issuehi ug ticket, or assuming naissuehan ug

ticket pro nalunod mn ang barko, nalunod pud. Muallege ka, mutestify xa nga “ako mai naghatod nia sa pier, kt.an nako xa nga nisaka xa sud sa barko, nya after ato nitxt xa nko na nilarga na cla nya after ato nhibaw.an nlng nko na nalunod d.ai”. So if you are the legal heir of that person who died, you establish that there was a contract of transportation, and secondly, there was breach of that contract. How is that breach manifested? Death of that

person. How will you prove death? Death Certificate kung naa, kung wala makit.an probably naai report ba kaha ang government agency na kini claw la na makit.e..do not rely on passengers’s manifest. Kita mo ana inyong gipirmahan? Or kanang muentry cla nya cla rai musuwat, tan.awn inyong ticket kung knsa ang mga passengers, do not rely on that. Especially if overloaded ang vessel, ting Christmas, and taw muuli mn jud bahala overloaded. Overloaded gani, imong ngan wa jud dha sa passengers’ manifest. Does that mean that you are not a passenger? Not necessarily, because you can establish by testimonial evidence. Presumption of Negligence

In case of loss, damage or deterioration then the common carrier is presumed to be negligent. When there is death or injury to the passenger then the carrier is presumed to be negligent. Why is it important to know about the presumption? 1. It is one of the differences between a contract of transportation and torts as a source of obligation. Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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2. Evidence in chief , in the order of trial plaintiff will present the evidence first, that is what we call evidence in chief, after plaintiff, the plaintiff will offer documentary evidence and after the offer the plaintiff will rest his case. After that the defendant will start his evidence in chief, but before the defendant may present his own evidence, the defendant may as with leave of court if the defendant can file a demurer to evidence. On the ground that the evidence presented by the plaintiff is not sufficient to warrant a judgment against the defendant. The presumption of negligence is important because it is one of the differences between contract of transportation and torts as a source of obligation. If the action is based on a contract of carriage and you file a demurer on the ground that the plaintiff has not presented any evidence to prove negligence then the court will deny the demurer. Why? Because negligence is presumed by law. There is no need for the court to make an express finding of negligence as it is presumed. With respect to factual matters, when does the presumption apply? If you rely on the law make sure that there are facts that would warrant the application of the presumption of negligence. You must prove the ff: 1. Contract- that there was a contract of carriage. 2. Breach- LDD Loss Deterioration Damage How do you prove that (breach)? Goods- Survey report, Carriage of passengers-ug ma piang ka, mamatay ka. OBLIGATIONS 1. Deliver 2. Accept 3. Exercise extraordinary diligence

That will lead us to the defenses. Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same is due to any of the following causes only: (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 of omission of the shipper or owner of the goods; (4) The character of the goods or defects in the packing or in the containers; Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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(5) Order or act of competent public authority. Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article, if the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as re quired in Article 1733. Art. 1742. Even if the loss, destruction, or deterioration of the goods should be caused by the character of the goods, or the faulty nature of the packing or of the containers, the common carrier must exercise due diligence to forestall or lessen the loss.

Art. 1743. If through the order of public authority the goods are seized or destroyed, the common carrier is not responsible, provided said public authority had power to issue the order.

1734 talks about exclusivity of the list, then you have the defense of the exercise of extraordinary diligence, then you have hijacking as long as there is irresistible force or intimidation. The ruling of the court about these absolutory causes SC said the grounds in 1734 are a closed list but you note that they have different legal basis. 1734 talks about 5 absolutory causes but there is a different article that talks about extraordinary diligence and another talking about fortuitous events. Even the Supreme C ourt is confused. When you present defenses in court you present all possible defenses 1734, extraordinary diligence, fortuitous event… these 3 safe na ka. Mitigating cause- contributory negligence of the passenger or shipper.

(chiu vs arisgado)

Defense of the bus was that another driver parked his car at the side of the road. SC said that is not something that is fortuitous. Because there was participation on the part of the common carrier, he was over speeding. Carrier must be free from any participation causing the damage. He is excused only if the fortuitous event is the proximate and only cause of the loss. Fortuitous Event:

1. The cause of the unforeseen and unexpected oc currence must be independent of the human will. 2. Impossible to foresee. 3. Occurrence must render it impossible for the debtor to fulfill the obligation in a normal manner 4. The obligor(debtor) must be free from any participation or the aggravation of the injury. Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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Raise all the issues in the pleadings. Is the sinking of the vessel caused by a storm? Assuming it was not caused by a storm, did the common carrier exercise extraordinary diligence? Assuming the cause was a storm, can it be considered a fortuitous event? Natural disaster as a cause

1. Proximate and only cause 2. Exercise of due diligence to prevent or minimize loss before, during and after the occurrence if the disaster. 3. Common carrier must be free from negligence and misconduct. (DSR Center)

Defense of the common carrier was that it was a natural disaster. SC said that fire is not one of those causes under 1734. Then the court further said that even if fire was a natural disaster it has to be proven that it was the proximate and only cause and that the carrier exercise due diligence. But there was no proof that the carrier exercised due diligence before, during and after.

Now kahibaw ka na second requisite to sya. Due diligence to prevent or minimize loss before, during and after. Take note ha: before, during and after, sa ato pa importante na establish sa wa ba masunog ang goods, unsa gihimo ng carrier, pagkasunog, pagkahuman sa sunog unsay gihimo niya? if you present what he did before and during, but not what he did after, that is not sufficient, because remember you have to destroy the presumption of negligence through Art. 1734. If you cannot destroy the presumption of negligence, the carrier is liable. Another case in relation

to natural disaster and the requisites, the case of Lea Mer Industries Inc v Malayan Insurance: the court ruled that there was no evidence showing that the carrier minimized or prevented loss before, during and after. Joey Draper testified he could no long remember whether anything had been done to minimize loss when water started entering the barge [wa siya ka hinumdum, this is different fom saying na wa sila gihimo, because that would mean failure gyud unlike if you forget angat gamay]. But the court said, you cannot remember means you have not proven the second requisite, then the presumption of negligence remains. Remember the carrier has to rebut the presumption of negligence.

Next, requisites for public enemy, the same requisites as that of natural disaster. Take note of public enemy as a cause because of the rampant piracy in Somalia. There’s an advantage and there’s also a disadvantage. If goods are lost, pananglitan gisunog ng pirates ang goods, the advantage ther e is if you can prove that it is an act of a pirate then that is an act of a public enemy. The disadvantage to the common carrier is this: why did you cross Somalia strait when you are already aware that pirates are rampant in that area. The proximate and the only cause and common Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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carrier must be free from any misconduct; being aware of that rampant piracy in that area can be considered as misconduct. Wala pang jurisprudence to that respect.

Kung mubayad ang carrier ug ransom aron iparelease ang goods, makaclaim ba ang carrier against/ iya ba ipacharge sa consignee? Hindi pwede, kay illegal man na. That is an act on the part of the common carrier. That’s why other carriers just opt to: take another route, increase their speed when passing that route, or hire armed men to fight back the pirates.

What about act or omission of the shipper ? There are two requisites: 1. proximate cause 2. due diligence to lessen the loss Note that in the second requisite, there’ s no phrase saying “before, during and after”.

What about improper packing? Same requisites as an act or omission of a shipper or owner.

What about an Act of State? Remember the case of Japan Airlines v Asuncion involving the issuance of a shore pass, when there was a discrepancy between the picture and the actual height of the passenger. Actually according to the Supreme Court, there was no contract with respect to the assurance that the passenger would be allowed entry to Japan in NARITA, walay assurance na mupasar sila sa katong shore pass. But if you can prove that there was such an assurance coming from the common carrier that one you arrive in a particular area that you would be granted this so and so, and you were not granted that, then that is a breach of contract. In this case, there was no breach of contract because the duty of Japan Airlines does not include the checking of the veracity of every entry in the document; it is a sovereign act which cannot be interfered with even by the airlines, plus the passengers were aware that upon their arrival in NARITA they will have to secure shore pass for their overnight stay.

What about the character of the goods ? The relevant case there is Planters Products vs. CA ,but take note that this is a peculiar case since it involves fertilizer which may dissolve when they are being transported in bulk. So for me, Planters Products is peculiar with respect to fertilizers. Do not apply Planters Products if the goods being transported is not a fertilizer or is not something that may deteriorate because of natural reaction while in transportation. Pananglitan muingon ka, “well it was damaged by sea water” whatever may be the cause, remember there is always that presumption of negligence. So in this case of Planters Products, according to the SC, the carrier has proven that it exercised extraordinary diligence i.e. the hatches of the vessel were cleaned, dried and fumigated; the steel pontoon Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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hatches were closed and sealed with iron lids, then covered with tarpaulins which were tied with steel bonds; the hatches remained closed and tightly sealed while the ship was in transit; the hull of the vessel was in good condition foreclosing the possibility of spillage of the cargo into the sea or seepage of water inside the hull of the vessel (hull= ilalom sa barko). Take note, transportation of fertilizer in bulk exposes it to inimical effects of elements the inherent character of goods make it highly vulnerable to dete rioration.

For order of public authority , the case of Ganzon v CA take note of Justice Melencio-Herrera’s dissenting opinion, I myself agree to the dissenter, but anyway there is no latest jurisprudence with regard order of public authority.

Exercise of extraordinary diligence is shown in the case of Tiu v Arriesgado. Why did the common carrier fail to exercise extraordinary diligence in this case? Paspasero ang driver and according to the SC, upon the happening of the accident it must be shown that the common carrier observed extraordinary diligence. The trial and appellate court found that he was driving at a very fast speed before the bus owned by Tiu collided with Condor’s stalled truck. The doctrine of last clear chance does not apply to the contract of carriage because the basis of a contract of carriage is the contract between the passenger and the common carrier. The doctrine of last clear chance applies only if there is no pre-existing contract. The doctrine of last clear chance is used by investigators: if you have the last clear chance

to avoid the accident, you would be held liable [kasagaran if ikaw ang nakabangga sa luyo sa imong atubangan na sakyanan, ikaw mao ang liable pirmi-- you had the last chance to avoid the accident kay ikaw man ang nasa luyo]. This only applies in a suit between owners and drivers of two colliding vehicles, but even if not involving just two vehicles if walay collision for example ikaw ang pinaka likod, ikaw ang naka dumbon ikaw gihapon and i-declare as liable because of that doctrine of last clear chance.

Fortuitous Event

Loadstar Shipping vs. Pioneer Asia Insurance : batch of cement from Iligan when the vessel left Illigan city the

weather was good and 4:31 in the morning the master Cpt. Montera ordered the vessel to be forced around entire shipment was gone because of exposure to sea water. What was the defense of the common carrier? Fortuitous Event, but the claim was not substantiated. That means if your defense is fortuitous event you have to prove the four requisites. Fortuitous event was not proven as a defense because the vessel took a short cut route, remember it must be freed from any participation, by taking that short cut route it was a participation on the part of the common carrier.


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Art. 366 Notice of claim requirement involving 24 hr notice if the defect is not apparent, but if defect is apparent you

have to notify the carrier IMMEDIATELY. The reason for this notice of claim so that presko pa ang pagkahitabo makainvestigate pa ang common carrier unya dili pud ma-accuse ang shipper/consignee na naghimuhimu ra ug kaugalingong damages.

What is the consequence if you do not comply wit Art. 366 ? You have no right of action this means if you do not comply, your action can be dismissed for failure to state a cause of action. Notice of claim requirement is normally seen in your contract, in the Bill of Lading so before filing a suit, read carefully the Bill of Lading/contract if it requires a notice of claim. The case of Philippine Charter Insurance vs. Chemoil Lighterage , do not be misled in this case, the issue is not Art 366, the issue is whose testimony is believable between the employee and the VP for administration. According to the common carrier it was made by pelcom. Remember that the notice of claim has no requirement that is has to be made in writing, it can be done verbally or in writing, but in actual practice there is such a requirement to do it in writing. Can you say that Art 366 does not require the notice of claim to be in writing? You cannot say that once it is stated there that the notice “must be in writing” since that already forms part of your contact. Although you could argue that you haven’t read the fine print, sakaon kaayo ang imong kaso, dali ra ka pildihon. So remember, review your contract first if it contains a provision regarding a notice of claim before filing a case in court. Defenses of a Common Carrier Over Goods

I.

Art. 1734

A. Provision, general concepts Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same is due to any of the following causes only: (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 of 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.

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Even if there are cases that say that the grounds enumerated under this provision are exclusive, I think this is correct only with regard to the PERSPECTIVE UNDER 1734. Correct in the sense that those that are not stated there are not precluded from being used as a defense. Just like in the case of DSR Lines, on the question of whether a fire is a valid defense. SC said that a fire is not one of those listed under 1734. The point is that under 1734, the grounds are exclusive. But that does not mean that the common carrier can’t use the ground under 1735 and fortuitous events. Thus, as a lawyer, do not be contented with arguing one defense. As much as possible, allege all defenses.

B. Grounds no. 1 and 2


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We can all agree that not all fortuitous events are natural disasters. Note that there are 3 common requisites for grounds 1 and 2—proximate and only cause, exercise of due diligence, and take note of the qualification that the carrier must prevent or lessen the loss before, during, and after the occurrence of the event. This third qualification is not found under the third and fourth grounds. On the second ground of act of public enemy, please take note of act of pirates. Common carrier can avail of second ground if the ship was taken by pirates.

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Please note also of the first ground with respect to amihan or habagat winds. It’s normal to experience them during certain times of the year. SC said that it’s an ordinary vicissitude of sea voyage. Question: if the ship captain beforehand was informed of an incoming typhoon which will traverse the route that the vessel will take, is it possible that the common carrier cannot anymore avail of the first ground as a defense? My opinion is Yes. Because remember the requisites that there must be absence of misconduct or negligence on the part of the common carrier. Knowledge of the typhoon may be considered negligence; this is so even if the common carrier was granted a permit by the Philippine Coast Guard. Clearance cannot prove natural disaster as a ground. Because clearance by coast guard that the vessel is fit for voyage does not indicate that the vessel is seaworthy. What if there is certification from PCG that the vessel is fit for voyage? Which means that it was inspected. This is not sufficient. It only proves that the vessel was inspected, but not that it is seaworthy.

C. Ground no. 4

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Please take note also that with respect to ground no. 4 (character of the goods), the case of Planters Products is about fertilizers. So if the goods are not fertilizers, the ruling in Planters Products may not be invoked. This will be decided on a case-to-case basis.

II. Extraordinary diligence

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This is very difficult to prove. The test here is whenever you stop asking about possibilities about your defense, then maybe there is already extraordinary diligence. But the moment you still have questions, then probably extraordinary diligence has not been exercised yet. Just like that defense of a newly purchased tire. One can ask, how is it that the SC did not consider the defense of newly purchased tire? But the SC still required that proof be presented as to the capacity of the tire, conditions of the road, etc. So all possibilities must be met with respect to the defense of a common carrier.

Over Passengers I.

Art. 1759 – acts of employees

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This is an absolute responsibility, which means that common carriers have no way out of this.

II. Art. 1763 – acts of strangers

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There is an excuse here because the carrier may present evidence that it exercised due diligence to prevent or stop the act or omission. This means that it should be prior to the act or omission.

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Bacarro vs. Castano

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Kinis Bacarro, gi-overtakan ang jeepney wa mupa-reduce sa iyang speed, instead iyahang gisundan. The failure to reduce the speed when somebody is overtaking is a violation and that shows that the carrier did not exercise due diligence.


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MRR vs. Ballesteros

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Kadtong auditor na gusto kaayo mu-drive unya naay giilisan na spark plug ang driver, iyang gipulihan. Kahibaw kag unsay sayop ato sa dirver? Iyang gisaway ang auditor, ayaw og drive ingon sa auditor ako lang drive. Ingon ang court, the driver could have taken over pero wala may proof.

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What about contributory negligence?

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Negligence on the part of the passenger is also a defense on the part of the carrier.

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Art. 1734 p.3

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Act or omission on the part of the shipper, puede nimo na magamit with respect to carriage of passenger. So if the proximate cause is the negligence of a passenger, common c arrier is absolved.

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Mao tong naay kaso diha na iyang gigawas ang iyahang kamot, absolved ang common carrier. But if the negligence is merely contributory, that will not absolve the common carrier but there is only equitable reduction of damages.

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Cangco vs. Manila Railroad Co.

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Katong watermelon iyahang natamakan. Sc said that there was no negligence of the passenger ngano man? Kay lalaki man. In determining contributory negligence of passenger age, sex, and physical condition of passenger is to be considered.

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Isaac vs. A.L. Ammen

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Note that in this case, the appellant was the only victim. That means kung pananglitan daghan ang nabiktima, unya apparent kaayo way gihimo ang common carrier wala sawaya sa conductor, it’s possible that it won't be considered as contributory.

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Tabacalera Insurance vs. North Front Shipping Services

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This case involved corn grains. We are now delving into the reduction ha. Actually wala juy formula ang supreme court there is no standard. Because of contributory negligence, damages were mitigated to 40% and the basis was not shown in the decision.

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Compania Maritima vs. CA

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Kadtong Engr. na naay pay loader. Inaccurate weight being represented to the common carrier. SC said that there was contributory negligence. The reduction in damages was 20% and we do not know the basis because it was not shown also.

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Del Prado vs. Manila Electric

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Kadto ning nisakay na wa makagunit. Wa pa gali maabot iyang tiil sa platform, nidagan na. There was contributory negligence on the part of the passenger. SC reduced the damages from Php 10,000 to Php 2,500. Again we do not know how the SC arrived at the said figure.

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Dangwa case

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Wa pa gli kasakay si pedro ni-jerk ang sakyanan nahulog siya. The court said in this case that it is not negligence per se for one to attempt to board the train or a street car which is moving slowly. But in Del Prado the court considered an attempt to board as contributory negligence.

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There is no conflict between Del Prado and Dangwa because in Dangwa, contributory negligence was not an issue. Mao na akong giingon ninyo, if you want to raise an issue, you raise it in the pleadings


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and raise it during pre-trial. pero magpatugtog gali mo, patay pildi. Rather, the issue was WON the contract was perfected. Kung ikaw abogado sa Dangwa, abogado ka sa common carrier, you should have raised as an issue WON there was perfected contract. Assuming there was a perfected contract, WON there was contributory negligence on the part of the alleged passenger or WON the negligence of the alleged passenger was the proximate cause for his injury or death. You raise it as an issue in your answer because all defenses not alleged may be voided. -

PNR vs. CA

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Naa siya nisakay sa open platform between the coaches of the train. SC said wa unta ka mulingkod diha. Nigunit unta ka. The court deleted moral damages in resolving contributory negligence in relation to the reduction of damages and wa ko kahibaw nganong gi-delete.

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Baggage

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What is to be considered a baggage?

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Example, guitarista ka nya nagtravel ka sakay bus kay mag-concert ka nya dako kaayo imong guitara, can the guitar be considered a baggage? Probably, yes but if ako common carrier dili nako dawaton ang imong guitara because it is not fit for transport kay wala may part sa bus that is fit for your guitar.

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Can the common carrier refuse in the first place?

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You go back to the obligation of the common carrier.

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With respect to baggage, you have to check your contract. If there is no contract then verbal agreement maoy mu-matter.

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Checked in Baggage

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No problem with airlines cz kaya kaayo i-distinguish. But there is difficulty in distinguishing checked in from hand carry in a vessel because of the porters who would get your baggage upon arrival at the port for convenience and not necessarily for check in. But if akoy pasahero, I would that it was check in because I had no personal custody over it and it was placed for baggage.

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Buses

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Baggage placed on the overhead compartment = hand carry

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Those on the luggage compartment on the sides of the bus = check in

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Taxi

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Baggage compartment at the back = check in

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Those brought inside the taxi = hand carry

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Personal custody = hand carry

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Art. 2000

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Common Carrier is responsible for acts of employees or strangers. Note that there is no qualification. There is no distinction.

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Unlike in Art. 1759 and 1753 wherein gi-distinguish. Kung act of employees = absolute. Kung act of strangers = due diligence to stop or prevent act or omission.

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Art. 2001


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Transportation Law Notes (Midterm) -

2013

With respect to hand carry. The act of a robber is not deemed force majeure unless with the use of arms or irresistible force.

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Art. 1745 p. 6

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The law did not use the phrase "use of arms". Instead it used irresistible threat, violence or force although it may be implied but there is no use of arms.

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De Guzman vs. CA

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Robbery was considered as irresistible threat, violence or force because of the use of arms.

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Posting of Notices shall not free common carrier from liability. But posting by the common carrier may help in the future because that may be proof of due diligence when it was an act of a stranger not the driver.

Baggage? So far we have not come across with a jurisprudence on peculiar issues about baggage. Of course as we know, there is no difficulty with respect to baggage in air carriage because there are standards. For example, with respect to baggage that u want to check in and what u can carry, there is a standard as to the size, weight, etc. on which you have to comply with. For example, you have an electric guitar, it is considered a baggage but of course you cannot bring it inside your seat or you cannot place it on the compartment above your seat. Meaning? You have to check it in. There are not many discussions with respect to land transportation although in water transportation, the industry is making a policy similar to that of Air. So, now for example, there is already a standard as to the size that you can bring, when you are taking baggage or personal belongings in which you cannot bring things that do not comply but so far there is a very strict policy when it comes to air. Probably the very reason why there is no jurisprudence with respect to land because those who are taking land transportation are normally at the average income level or even below. There is difficulty in engaging legal services. In fact that also happens in the case of water, take the case of The Princess of the Stars, there is a lot of cases filed in court but not all cases are handled by private lawyers. The reason is the lack of financial capacity. IF you want to become a public attorney in the future, that is a challenge; to believe and pursue what is just and equitable and not merely deny the clients cause by reasons that you are busy or probably you are a lot of cases. If you have just witnessed the load of cases PAO lawyers have, perhaps they are having 10 cases in a day which is already overloading and somehow put at stake the amount of preparation one must have. In contrast, a private lawyer may be more prepared. Unlike in Air Carriage, normally those who can afford can also afford to file a case although that may not anymore happen now because of the deregulation of air fare. You will also note that the trend now is deregulation, so once there is a deregulation, prices tend to go down—plane tickets are cheaper now. Water Carriage on one hand is also deregulated but we cannot yet feel the impact as of this time except for fast crafts. Before, two trips (roundtrip) would be pricey but now we can just get it for the price of one trip. That is because of deregulation. With respect to land, it is still regulated. When it comes to jeepneys and buses, it is regulated and at some point jeepneys also ask for a lower price than the standardized fare but it is a violation per se. If you go lower or higher than what is stipulated by the regulatory board, it is a violation. If you hear of some buses when they say that they Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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are not collecting the correct fare? For example if the fare is 10 pesos and the bus is only asking 8 pesos then it is a violation. Why? Because the businessmen are entitled also to ROI. In case of taxies, they are also regulated but there is a difference between the yellow and the white ones (regular). The challenge now with respect to taxies in the airports is what they alleged to be, distribution. Why? Because only yellow taxies are allowed in the arrival area while the ordinary taxies are limited to the departure area. For example, you have just arrived and you proceeded to the arrival area, there you can see yellow taxies but if you want the ordinary cab then you have to walk back to the departure area just to avail of the latter. So if you want to be the manager of the airport then that is a challenge. There are certain things that need to be emphasized when it comes to baggage. Are we done with 1759 and 1756? What about contributory negligence? Class: Done sir. There are two distinctions between checked-in and handcarried. As I have said, what is considered checked-in and handcarried, there is not much difficulty when it comes to air. Why because the moment one approaches the counter and you entrust your baggage then it is considered as “checked in”. The moment one does not entrust the baggage to the counter and assuming that the baggage complied with the standards for handcarried baggage then it is “handcarried”. What about water? There is no concrete policy with respect to water, I have experienced it, for example in a fastcraft vessel. I have observed in the port, if you want your things to be carried by the porter then they facilitate by weighing your baggage and placing your baggage in a nearby place with vessel. Once the vessel does not anymore accept passengers or visitors (puera visita2x) then they would also facilitate putting your baggage in the luggage area. The question is: can that baggage brought by the porter be considered checked in? There is an issue there because the porter is not employed by the carrier and I am not even sure if the former is employed by the terminal operator but what I am sure of is, the things that you are bringing in with you from the waiting are up to the vessel, are considered as handcarried. What about with respect to land? If you take a taxi, the ones placed at the body’s compartment are considered checked in. The ones placed in the body compartment of a bus are also considered checked in. How about those baggages that you place on top of your head, at the overhead compartment of the buses? Normally, it is like a net or grill placed on the top. The question is, are the things placed on top of your head considered as checked in? In my humble opinion, it is considered as handcarried because you as a passenger has maintained custody over it (meaning, it is your own lookout). In that case, you cannot expect the carrier to watch over your things because it is not placed in the luggage compartment. On the other hand, those placed in the luggage compartment is under the control of the carrier’s staff. Sometimes, it even has a lock. There is a question in the book nga nakuha ang iyang bag and who is responsible for that… If you also have something at the luggage compartment above you, it still may be considered as checked in if you have entrusted it to the conductor or the driver. For example if you say, “dong, palihug kog bantay sa akong bag ha?” then the “dodong” said yes or perhaps manifested an approval through gestures. I hope you would already understand why it is important to understand the distinction between handcarry and check in. Now, what about those notices that say (usually in the buses) “the bus operator/owner is not responsible or liable for your personal belongings”. Of course, you will note that it is covered under Art. 2003, posting of notices that common carrier is not liable does not free the carrier from liability…


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Now, referring to acts of strangers, there is a little difference here because I think you would recall under Art. 1763, the carrier is not responsible for acts of strangers if it did not exercise due diligence to prevent or stop the loss, etc. Whereas, in Art. 2000, carriers are responsible for the acts of strangers without qualification. That means, you have to determine what was involved, if what was involved are handcarried baggages then for acts of strangers, for example,

naa naninda ug chicharon nga gipasakay sa bus unya pag naog sa tindero gadala na ug ipad mini sa

pasahero… Is that an act of stranger? Yes, because he didn’t even pay ticket and there was no intention for him to be a passenger because his sole purpose was to sell chicharon… that is an act of a stranger, if what was lost was a handcarried baggage then Art. 2000 will apply. That means that the carrier is responsible for the act of the stranger. Can the carrier invoke due diligence to stop or to prevent the loss? Personally I don’t think so because the law does not qualify. But for example, if instead of stealing pananglitan nakit.an sa katong tigbaligya sa iyang kontra, iyang gisumbag tong pasahero unya dagan dayon after, do you think 2000 would apply? No. because injury man sa tawo so what will apply is 1766, so the carrier has to prove that it exercised due diligence to stop or prevent (the crime? Di klaro). Another thing is with respect to Art. 2001 under handcarry. Art. 2001 says that the act of a thief or a robber is not deemed force majeure unless there is a use of arms or irresistible force. In the case of De Guzman (1745 article), it says grave or irresistible threat, violence or force but use of arms was not mentioned. Sa ato pa, ang use of arms was used under article 2001 but not under 1745 par. 6. In the case of De Guzman for example, robbery manto unya naa kay dalang pusil, pwede man sad nimo maqualify nga it was grave and irresistible threat, violence, but not necessarily force although you can expand a little bit… but this is irresistible threat or violence even if the law does not use the phrase “use of arms”. So please take note with respect to check in, the presumption of negligence. What about handcarry, muapply ang presumption? Dili? Why not? Student: You have control over your things? Ok, what else? Actually, there is no prohibition for the presumption of negligence to apply. So, even with respect to handcarried baggage, you can even invoke presumption of negligence but it is very difficult if you are already in an actual court case and what was involved was a handcarried baggage, if you are the lawyer for the plaintiff, are you going to present proof regarding negligence? Or would you just rely on the presumption? For example, going to my previous example, laptop sa pasahero gibilin sa sakyanan unya pagawas niya, gikuha ug gidagan sa driver… That thing is considered handcarried. Question, if you are the lawyer for that owner of the laptop, are you going to present proof on the negligence of the carrier? For me it is safe to prove it because of the possibility, while the case is pending , of a jurisprudence to rule that presumption of negligence will not apply then that would be disadvantageous on your part. See, because if you would also say that presumption of negligence does not apply then there is a difference between checked in and handcarried. But the presumption of negligence also apply then what is the difference between checked in and handcarried? It is not clear with respect to handcarried whether the presumption applies. Although you can also say with respect to handcarry, it does not apply because the passenger is supposed to take precautionary measures upon the advice of the common carrier. You have questions on Chapter 2? Regarding checked in and handcarry, is the a difference as to the kind of diligence? Extraordinary or ordinary? Sir: in my opinion perhaps there should be a difference, otherwise there would be no distinction between ordinary or extraordinary diligence. No jurisprudence yet.


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In Air carriage, cases regarding loss of handcarried items are usually defended by the limited liability rule in the contract. The carrier would then ask whether the items lost were validly declared since otherwise would be covered by the limited liability rule. EXTRAORDINARY DILIGENCE How would you comply?

There is no hard and fast rule. Therefore we have to rely on the cases. Juntilla vs. Fontanar

According to the carrier the explosion of the tire was a fortuitous event since the tire was newly-purchased. The SC said the common carrier did not exercise extraordinary diligence because there was a specific act of negligence. You can actually equate failure of extraordinary diligence with negligence. At one part the SC said, there was no evidence presented that the accident was due to adverse conditions of the road or caused by too much air pressure coupled with overloading. Use all reasonable means to ascertain the cause. In this case, there is failure of extraordinary diligence because there was negligence and there was no evidence of the cause of the explosion. Eastern Shipping Lines vs. IAC

Why is it that there was lack of diligence? Because the fire was already big which had already started for 24 hrs. kining 24 hrs dili ni xa gauge. Depende na kung unsaon pag prove. If you can prove that there was impossibility to notice something even beyond 24 hrs, you can still be considered to have exercised e xtraordinary diligence.

Cases in which the carrier exercised extraordinary diligence Republic vs. Lorenzo Shipping

The issue was very simple. It was about the delivery, the return of the bill of lading. The bill of lading was lost so they issued certified true copies. In the absence of certified true copies, they issued delivery receipts. But the consignee denied that he received the receipts. However, the common carrier, Lorenzo shipping proved that it exercised extraordinary diligence. How? True copies in the absence of which they issued delivery receipts and cited the provision of law which states that it is admissible in the absence of the bill. That is a manifestation that respondent adequately proved having exercised extraordinary diligence citing 353 of the code of commerce. Victory Liner vs. Race

So the driver was involved in an accident and he fractured his leg so he was limping. Of course if he was reinstated, the carrier contended that the passengers would suffer. Why? Because his leg was fractured. Although this question


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is about reinstatement, the court upheld the contention of the carrier that the employee-driver should not be anymore reinstated.

As to the question to whom this duty is owed, PAL v. CA.

Seaworthiness

In water, the important issue is seaworthiness. Take note that seaworthiness is concerned with proper manning, structure of the vessel, the capacity of the vessel to withstand the waves and other forces of the sea along the voyage, proper cargo handling, proper loading, etc. Even if you presented a certificate of inspection or a certificate of dry docking from the Philippine Coastguard, that is not sufficient.

Is the passenger expected to inquire into the vessel’s seaworthiness?

No because it is implied. In the case of Caltex vs. Sulpicio Lines, there was a collision between a tanker and a passenger vessel. So it was contended here by Sulpicio Lines that Caltex negligently shipped its highly combustible fuel cargo aboard an unseaworthy vessel implying that Caltex should have inquired first if the vessel in which the fuel cargo was loaded was seaworthy. Sc said that Caltex had no obligation before transporting to ensure that the vessel it chartered complied with all legal requisites. Shippers are not expected to inquire into the vessel’s seaworthiness, genuineness of licenses and compliance with maritime laws. What is required is only ordinary diligence. While the carrier is expected to exercise extraordinary diligence, the shipper or passenger is only expected to exercise ordinary diligence and the SC said that Caltex exercised ordinary diligence. Why? Because the tanker was in business since 1985, 2 years before the tragedy and they had bee n frequently contracting with Caltex.

What is considered as sufficient evidence to prove seaworthiness?

This is important if you’re lawyering for the common carrier because if the vessel sinks in the absence of a typhoon, there is a presumption. Therefore you have to prove that the vessel is seaworthy. In Delsan transport, the carrier presented certificates that at the time of dry docking and inspection by the Philippine Coastguard, the vessel was fit for voyage. So that means that before the actual voyage of the vessel, on the day of the incident, it was inspected by the Philippine coastguard and there was a certificate of dry docking. But is it sufficient? Sc said that the vessel was not seaworthy and that the certificates do not necessarily take into account the actual condition of the vessel at the commencement of the voyage. Take note that seaworthiness relates to the vessel’s actual condition. Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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National Steel vs. CA

The defense of the carrier here in National Steel is that it was dry docked and harbored by the Philippine Coastguard before it proceeded to Iligan City. Not only that, the vessel’s voyage was the first voyage after being dry docked. The court said that since the PCG cleared the vessel as seaworthy, it was fit and met all the requirements and so it was seaworthy. Is there a conflict between Delsan and National steel?

There is no conflict because in Delsan, the carrier was common. So the implication if it is a common carrier is that if there is loss, there is a presumption. In National Steel, the carrier was private. No presumption. Why private? There was a charter party. So in Delsan, since the carrier was common, there is a presumption. How do you disprove a presumption? You prove that the vessel was seaworthy. In National Steel, the carrier was private and therefore there is no presumption. The one who has the burden to prove that the vessel was not seaworthy is the one who filed the case because there was no presumption. Loadstar Shipping vs. CA

Sc said that the vessel was not seaworthy because there was negligence on the part of the ship captain. Why? They were aware that there was a typhoon. Again, negligence was equated with the vessel’s unseaworthiness. Sc said that negligence was the failure to exercise extraordinary diligence in Juntilla and now in Loadstar, negligence is equal to unseaworthiness of the vessel. So even if the vessel can sustain the strong waves of the sea, the fact that the captain was knowledgeable about the approaching typhoon, that is negligence and being negligent, the vessel is not seaworthy. In maritime law there is what we call a Limited Liability. It means that if the vessel sinks, the owner does not incur any liability. One of the exceptions is if the ship owner is negligent. In this case in Loadstar, assuming that the facts are expanded, if the vessel sinks, can the owner invoke limited liability? The carrier will say that he does not have any liability. Why? Total loss. Why is there no liability if there is a total loss of the vessel? Because of the investment on the vessel. Since there are only a few businessmen who would invest and to encourage them to invest, if there is a total loss of the vessel, there would be no liability. That is the rule but in Loadstar, there was negligence of the ship captain and negligence of the ship captain does not necessarily mean that the ship owner was negligent.

Even if there is a case that says that Certificate of Drydocking is not sufficient evidence to show that the vessel is seaworthy, you still have to allege the issuance of certificate, the inspection made by coastguard, because it is highly possible that the court will take cognizance of all circumstances. You have to note in Delsan, that was the defense relied upon by Delsan. What if Delsan also tried to prove that aside from the Certificate of Drydocking, aside from the inspection made by Philippine Coastguard, what if Delsan also presented evidence, that among others, captain and crew were properly licensed, all precautionary measures were undertaken with respect to before the start of the voyage, during the voyage, and after the voyage? So taking all in all these circumstances may be able to prove that the vessel is seaworthy. So, do not discount dayon na muingon ka na “Ah. Sa Delsan, ingon man ang court na dili sufficient, dili na nimo i-allege.” Do not do that. As I have emphasized, you allege all the defenses that you can think Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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of. Now, we are still on the sufficiency of the evidence to prove seaworthiness and with respect to insufficient manning, sa ato pa, kuwang ang number of crew sa vessel. In Loadstar v. CA, the court held that insufficiency of manning, kuwang imong number of crew, of course, I am not aware now of the number of crew required of the vessel. It actually depends on the tonnage of the vessel. That’s why there is also what we call patron; you have major patron and minor patron. MARINA is more expert on that, on what is the tonnage that a patron can handle. But as we know of, with respect to vessel, kanang merchant vessels or kanang pasenger vessels, we are normally handled and navigated by ship captains, not by patron. Because a patron is lesser in competence compared to that of a ship captain. Although sa atoa, mas ganahan ang mga tawo na tawagon na ship captain. But in Hongkong, kasagaran tawagon nila master. Kanang master, in respect to maritime law, master is equivalent to ship captain. In the case of Loadstar, insufficient manning, and the court held that the vessel was not seaworthy. Of course you will now think that if the vessel is not seaworthy, there is a failure to exercise extraordinary diligence. Now question, why is it that in Loadstar there is a discussion about knowledge of approaching typhoon? Actually there were several defenses and issues raised by Loadstar. One is on the seaworthiness of the vessel which the court has already answered. Second on the applicability of the Limited Liability Rule which we will discuss more deeply when we reach maritime law. In maritime law, this what we call the principle of Limited Liability. Meaning, shipowners, they have interest over the vessel and it is confined in the vessel itself, such that if the vessel is lost, ang interest of the shipowner is also lost. Implication? Liability of shipowner is also extinguished. Dili ba na unfair? That is what is provided by law and secondly, that is to encourage people to invest in maritime shipping. Kay shipping transportation is very important in the economy of the country. Kung malunod gani ang barko, wagtang ang liability ni shipowner. That is why in one of the defenses in your answer, you allege 1734, extraordinary diligence, fortuitous event, mu-allege pud ka, assuming that the common carrier cannot prove extraordinary diligence, etc., then “the liability of the shipowner is extinguished because the vessel totally sank.”- that is one of the defenses in maritime law. But there’s an exception to that. One of the exceptions is when shipowner is negligent. In the case of Loadstar, according to SC, before proceeding to voyage, there was knowledge of the approaching typhoon. So ingon ang SC, Loadstar, the doctrine of Limited Liability cannot apply, because the exception applies. And because the ship captain was knowledgeable of the approaching typhoon, then it tantamount to a shipowner having knowledge of the typhoon, and therefore Limited Liability does not apply. That is the importance of this discussion on Limited Liability. Now, two other cases with respect to proper manning. You have Coastwise Lighterage, katong naay na-struck upon sunken object sa pier in Manila. The court said if the patron would have been a licensed patron, then the vessel would have avoided the sunken object. You cannot argue in court that even if your captain is not licensed but he has the experience, then that you can prove seaworthiness because what we emphasized in the case of Coastwise, your ship captain must be licensed. In the case of Manila Steamship, incapacity to pay licensed master is not an excuse. I don't think also common carriers in the right mind will engage an unlicensed master nowadays. That is also the very reason why kanang mga international coastwise-going vessels, kung naay munaog na seaman, dili na kinahanglan na ila pang hapiton sa puerto pilipinas for example. Ang ilaha, kung asa naay nanaog na seaman, ang kadtong musakay didto musakay kung diin naay nanaog. Ngano man? Aron to complete the crew. Because can you imagine if incomplete imong crew? That is tantamount to unseaworthiness of your vessel. Kung unseaworthy imong vessel, patay ka. You cannot prove extraordinary diligence. Now the next aspect of seaworthiness is proper loading and this was demonstrated in the case of Negros Navigation where the court held that overloading of the passengers violates a duty. Kini ra bang overloading mahitabo ni kasagaran sa vessels. Especially, God forbids, during Christmas season tungod kay sakay man ang barko. Question, Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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how do you prove overloading? Can you expect the common carrier to give you a copy of passenger’s manifest? No. Because the passenger's manifest, although kasagaran na mukuha ana kay coastguard, ang mu-possess ana kay common carrier. Ang buhaton sa coastguard, mag-ihap na sila. I’m not saying that coastguards are corrupt, but I have heard of stories na nabayaran maong gipalarga ang vessel. If there is difficulty of proving overloading, it is still possible for witnesses to be presented in court and to testify na dunay overloading. For example, the witness may testify na wa na gani mangatug ang uban, daghang tawo na galingkod, nangatug na sa aisle, sa bangko. Do not limit yourself on passenger’s manifest because it is likely na common carrier dili muhatag nimo og passenger’s manifest although you can prove that through discovery procedure. But do you think common carrier will give you something na disadvantageous nila? Posible dili. Limpyo gyud na. And it is also possible na kadtong nanakay, wala na malista. Question ana,, musakay pa ba ka kung overloaded na? Anyway, the other aspect is proper storage. Remember, all of these aspects are actually indicated in the concept seaworthiness. Sa ato pa, dili enough na you can prove in court that your vessel can withstand big waves. You have to prove dili lang ang technical structure sa vessel, but you have to prove na properly licensed imong captain and crew, dili overloaded, na ang goods properly stored. In relation to seaworthiness, daghan ang aspect na imong i-prove. Proper storage. Philippine Home Assurance , katong mga acetylene cylinder. What about the top heavy nature of the vessel? Philippine American General Insurance v. CA , please take note that there is a presumption pronounced by the SC that the vessel in unseaworthy if there is a cargo on deck. Kanang deck, that is the place na atubangan sa bridge. Kanang tumoy bitaw, assuming na naa sa front. Ang bridge ang naa sa taas. Kanang space diha on top of the cargo hold, mao na ang deck. There is a presumption that if you place cargo on deck, there is unseaworthiness of the vessel. Because posible na ang vessel dili sya maka-withstand sa waves tungod kay dili ma-balanse iyang pag-navigate sa dagat. Mao na kasagaran ang cargo naa sa ilawm sa barko, sa cargo hold. I have also witnessed an owner of common carrier before departure, ang Roble Shipping, kasagaran nya na mga cargo mga sakyanan, trucks, private cars. Pero ilang i-see to it na ilang pagbutang sa ilawm sa passengers' deck balanse ang barko. In fact sa dili pa sila mularga, ilang buhian ang anchor, ilang ipalutaw ang barko to see to it na balanse. Kay kung takiling, that may be a proof, a manifestation na walay proper storage- unseaworthy and failure to exercise extraordinary diligence. That is also the reason why there is what you call containerization; kanang mga ten-wheeler truck. Mas dali ibutang sa barko; i-pile nimo ang containers, assuming na pareho ilang load. Whereas kung sakyanan ka, unson pag-pile? Lisod, gawas kung naay equipment na pwede nasa taas. So, the only exception that cargo on deck does not become a presumption of unseaworthiness if the deck cargo will not interfere with the proper management of ship. That’s why in this case, the court observed that the vessel was not designed to carry substantial amount of cargo on deck. Implication? Failure to exercise extraordinary diligence. In the case of Belgian Overseas, naay notation sa bill of lading with the words "metal envelope rust stained and slightly dented." According to carrier, “Dili ako responsible for the damage of goods because it was clearly stated sa bill of lading na naa nay rust.” Sa ato pa ang defense niya was improper packing. But the carrier forgot one important requisite and that is to establish that it exercise due diligence to lessen the loss. Mao na wala sya ma-spare from liability. In the case of Tabacalera, the court emphasized na extraordinary diligence is equal to exercise of precautionary measures. Shipment of corn grains. The court said since 1988 ang service sa common carrier and the court held the master would have known that corn grains which are farm wet, basa-basa pa, not properly dried, would eventually deteriorate in sealed and hot compartments as in hatches of ship. It is the responsibility of the ship captain to take all precautionary measures. The ship captain must be knowledgeable about the nature of cargo. Kahinumdum ko sa katong sa fertilizer, ang sa fertilizer, lahi. Because aside from the fact na nakahibaw sila sa nature of the fertilizer, naestablish nila unsa ilang gihimo, pag-cover sa tarpaulins, gi-lock ang mga hatches, etc. According to the court, Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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equipped with knowledge, master and crew should have taken precautionary measures. S o lisod ni siya. It is more difficult in the case of Sulpicio v First Lepanto-Taisho Insurance . During sa pag-unload sa cargo, nahulog ang crate unya na-damage ang goods. The ruling of the court, the falling of crate is evidence of negligence. Question, where is extraordinary diligence there? The court said, extraordinary diligence requires common carrier to know and follow the required precaution. Naa bay gi-mention ang court unsay required precaution? Wala. I don't know what is that required precaution. My opinion, wala lang maka-present ang Sulpicio dinhi unsa ilang gihimo. Siguro at this stage of your study in law, you must have realized na ang pagdaog sa korte, dili kung kinsay naa in possession of truth. Ka-realize mo ana? Depende kinsay naay ebedinsya. Kung unsa ang naa nimo, imong i-present sa korte. In the case of Vector Shipping v. Macasa, dunay collision between MV Dona Paz ug ang tanker MT Vector. The court said, negligence was present when officers are carrying expired license. There was also a defect in ignition of the vessel and no proof whether repairs were undertaken. For example, kanang naa sa news na mapagngan og makina ang vessel, unsa man buhaton nimo, ikaw lawyer ka sa common carrier, to prove extraordinary diligence? You should present evidence kung unsa gihimo sa carrier sa makina na napawng aron to narrow down the possibilities na naay negligence. Kay kung wala kay proof na i-present, remember there is a presumption of negligence. Pwede na gamiton, “There was no proof whether repairs were undertaken.” Of course wala man gibutang sa jurisprudence how often kinahanglan ka mag-inspection. Of course kung muingon ka naay repairs na kingahanlan, sa ato pa naay guba. Another, the case of Aboitiz v. Insurance Company . Ang goods grounded outside of the warehouse, nauwanan, nabasa, na-damage. According to SC, there was a failure to exercise extraordinary diligence. Ingon man gud ang Aboitiz na na-damage na sya tungod sa uwan. Unya especially na naa sa bill of lading, klaro gibutang grounded outside warehouse. But the court said Aboitiz must prove that it used all reasonable means to ascertain the nature and characteristics of goods and exercise due care. So bisan pa naa sa bill of lading mismo gibutang na ang goods grounded outside the warehouse, sa ato pa na ang expectation ana, kung naa gawas sa warehouse, mauwanan gyud. Naa na sa bill of lading, ikaw shipper aware ka na mauwan gyud. Ingon ang court dili ina enough. Kinahanglan extraordinary diligence includes safeguarding from damages coming from natural elements.

Let's go to land and the famous case is Nocum v. Laguna Tayabas. Note, this is still the prevailing jurisprudence with respect to land. If you will be asked in the bar examination, you can actually cite case of Nocum. Usahay lang sakit pud ning kasoha tungod kay ingon ang court na, well ang tawo maghimo gyud og sakto. Reliance should be reposed on the sense of responsibility of all the passengers in regard to their common safety. Pero karon dili na ni applicable. Naa man gani uban mag-suicide man gani. Sa ato pa, we have to take note na in respect to land transportation, inspection is not mandatory. Besides, mahal man sad kaayo ang equipment for inspection. Could you imagine na ang taxi operator magkinahanglan pa og hi-tech na detector? Na before ibutang ang bag, i-inspect daan? Sa airline lahi. Ang sa maritime karon, nagkausab napud. It is going to the same level as that of airline. But of course ang other concept of principles diri sa criminal law can apply. For example, gi-frisk ka o kaha niingon ang security guard na inspeksyunon unya imong giablihan, there is a consented search. Gi-frisk ka, ni-isa ka sa imong kamot, that is consent. Pero kung nag-inabogado ka, dili ka pa-inspect sa imong bag, dili ka pasudlon uy. Regarding land, there is the case of Baritua v. Mercader . Nahitabo sa bus, nahulog sa river unya naay namatay na pasahero. The court said common carrier failed to exercise extraordinary diligence. There was no evidence on skill, expertise of driver, condition of vehicle at the time of accident. Sa ato pa, you should prove na imohang driver is a holder of a professional license. Unsay buhaton sa pikas? Ang i-prove niya, ang imohang license sige'g kadakpan, kaThru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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penalize. By the way, I don't know if I had mentioned this. Diba sa presentation of evidence, there is what you call evidence in chief, kung ikaw sa plaintiff, ang first stage of trial is for the plaintiff to present evidence in chief. Transportation, you need to prove two elements, the contract and the breach of that contract. Kung imong tan-awon sufficient na muestablish ka. It is incumbent upon the defendant in the evidence in chief sa iyang defense to controvert sa imohang gi-present na evidence sa contract ug sa breach. Question, what if naa kay evidence to disprove defendant's evidence? You do it in rebuttal. Naay rebuttal, naa pud surebuittal. But naay uban na lawyers na dili nila huwaton ang rebuttal stage. While during the presentation of evidence in chief sa plaintiff, ila nang i-prove daan na negligent ang defendant. Naniguro sila because kuyawan sila basin inigkahuman sa ilang presentation, mu-demurrer ang defendant. And inigka-demurrer sa defendant, wala na silay evidence na i-present. Adto na sa higher court, mangita nya ang court og proof nga naa bay negligence to prove among others failure to exercise extraordinary diligence. Or probably ang defendant dili mu-file og demurrer, dili nalang mu-present og evidence then submit for decision. That is possible, mu-risk nalang ang defendant. Court will be restrained to study and weigh evidence based sa unsa gipresent. It is very likely na during palang sa e vidence in chief presentation, mu-prove naka na dunay negligence. What about on air? In the case of Saludo v. CA, you will note that more or less the ruling of court is similar to that of Nocum v. Laguna Tayabas . Although ang pronouncement diri sa SC dili pareho sa Nocum. With respect to inquiry, the holding of court in Nocum, "inquiry MAY be verbally made." Sa ato pa walay duty ang common carrier to make verbal inquiry. Kanus-a man naay duty? When there is evidence of circumstance indicating cause or causes or apprehension that the baggage is dangerous. When there is cause and the common carrier failed to act, the common carrier becomes liable. Inquiry may be verbally made in Nocum. In Saludo, the court said, common carrier has the duty to make inquiry as to the general nature of goods and the right to accept shipper's marks as to contents. Kung unsa iyang nakit-an diha sa airway bill, ingon ang Saludo na OK na ang common carrier mu-rely unsa ang gibutang. Pananglitan ang gibutang diha kay katong patay na laws na na-misship sa laing lugar, dili na duty sa common carrier to ask for repetition and open the box to see it for itself. Sufficient na unsa nakabutang diha sa airway bill. Pero naa gyud og however. If there is reasonable ground to suspect that the offered goods are dangerous or illegal, common carrier has the right to know and insist on inspection. And the last one, on the reasonableness on the weight standards, talking about the case of Yrasuegui v. Philippine Air Lines. The SC justified the dismissal of Yrasuegui tungod sa iyang kadako because of safety, and safety was equated with extraordinary diligence. All in all, i can say, i can summarize, it is very difficult to prove extraordinary diligence. Ikaw gani ang lawyer sa common carrier, you have to answer all questions. Ikaw bay lawyer for the plaintiff or victim, mangita pud ka og buslot sa common carrier. Kinahanglan creative ka. Questions? Student: Is there a limited liability if the ship captain is not licensed? Sir: Yes. Kay if the ship captain is not licensed, it is connected to the shipowner, sa ato pa aware ka shipowner na ang ship captain is not licensed. If naay nalunod na barko, totally lost. Muingon ang shipowner, “I have no more liability. Nalunod ang barko.” But you were able to establish na unlicensed diay ang ship captain. It boils down kinsa may nihire sa ship captain? Sa ato pa, ang important diha kay ang knowledge of the shipowner of the omission. In fact gani, kanang lunod-lunod, kahibaw ang ship captain na nay forthcoming typhoon. Nay ubang cases na ingon ang court na that’s tantamount to knowledge of the shipowner because sa wa pa mularga, gi-advise’an mo sa coastguard na naay typhoon coming and yet imong gipalarga ang imong vessel. Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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Pero as a rule, it does not follow na kung negligent ang captain, negligent ang shipowner. Kung ikaw ang lawyer sa plaintiff, you have to establish na negligence of the captain is also the negligence of the shipowner. In one of my cases involving reckless imprudence resulting to damage to properties. Sa private complainant ako. Ang accused, former law student and instructor in driving. One of my questions was about his knowledge about traffic laws and rules. So didto sya naigo. Wala sya makatubag sa implication sa kanang double solid line. Aware mo ana? Ug naa pud single solid line. Be careful on that. And then possible cross pud nimo, that is if you are really confident, possible cross sa captain, driver, etc. their knowledge on laws relating to transportation. Because presumably, since they were issued license, aware sila sa mga balaud. So, for me it is r eally hard to prove extraordinary diligence.

suplicio vs first lepanto • • •

•

pag unload sa cargo na hog ang crate na damage ang goods sc said that the falling of the crate is a showing of negligence where is extraordinary diligence there o requires the common carrier to know the required proportion they failed to know the required precaution wa man mag sulti sa case what is the required precaution o (maybe wa lang maka present ang sulpicio og unsa ilang gi himo) o you must have realized nga ang pagdaog sa court kai og kinsa ang in possession of truth or wala, o depende kung kinsa og nay evidence. No evidence no mahems. Importante og unsay naa nimo imu gyud I presenter sa court.  Mao bitaw we are tought on how to present evidence.

Vector shipping vs macasa • •

•

Collision vs mv dona pas and tanker m/t vector sc said that negligence was present when officers were carrying expired license and there was also a defect in the vessel and no proof in the repairs were undertaken Ang kanang mapagngan of makina ang vessel sa dagat? o You should present eveidence og unsa gi buhat sa carrier sa machine nga napawng kai if wala kai o proof I present then there is a presumption of negligence There was no proof where there was repairs undertaken Of course wa man gi butang sa j urisprudence og how often kinahanglan mag inspection o

Aboitiz vs insurance company • • •

goods rounded outside of the warehouse nauwanan na basa na damage sc said there was failure to exercise extra ordinary diligence ingun man ang aboitiz nga na damage tungod sa uwan o nya naa sa bill of lading nga rounded outside the warehouse o


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the court said that they must prove all reasonable means to ascertain the nature, safety, characteristics of the goods and the exercise of due care. So bisan pag naa sa bill of lading mismo nga gibutang nga rounded outside the warehouse ang o expectation ana kai rounded outside the warehouse naa gyud na diha. Ingun ang aboitiz, nga naa sa bill of lading ikaw shipper kabalo gyud ka o Sc said that extra ordinary diligence includes safeguarding the goods from damage coming from natural elements

Now let’s go to land and the famous case is

Nocum vs laguna •

•

•

this is still the prevailing jurisprudence with respect to the land if you will be asked in the bar you can actually site the case of nocum o sakit lang ni nga kaso o sc said that well tao maghimo man gyud og sakto reliance should be reposed on the sense of responsibility of all the passenger with regard to their common safety with respect to land transportation, inspection is not mandatory. o Mahal pod ang equipment sa inspection o Sa airline lahe kai sa maritime pod nagkausab napod, going to t he same level sa airline o  In pier 4 2go used to be aboitiz nya mu take ka sa fast craft ila na I inspect and mu age na og detector ang imung bag o gang imung baggage. Sa ocean jet pod walay detector Other concepts and principle in criminal law can apply Example I-frisk ka or inspection or ablehan so there is a consented search that will apply. Mu is aka o sa imung kamot then there is consent. Per o og di ka mag pa inspect sa imung bag di sad ka pasudlon

Regarding land

Baritua vs mercader • •

nahitabo ani ang bus nahog sa river, namatay ang pasajero sc said that there was failure to exercise the extraordinary diligence there was no evidence on expertise of driver and the condition of the vehicle at the time of accident. You have to make sure that your driver is a holder of a professional license ang sa pikas pod ila I prove nga ang imung license cge lang kadakpan cgeg multa lack of skill and the condition of the vehicle is in good condition o presentation of evidence there is what we call the evidence in chief. o Plaintiff to present evidence in chief.  In transportation you have to prove 2 evidence the contract and the breach of the contract. 


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Kung kana lang ok na ka establish na. What if naa kai evidence to disprove the evidence of the defendant You do it in the rebuttal and then your surebuttal Naa uban lawyer nga di na mag huwat sa surebuttal o So maniguro nalang ka nga I present nimo tanan Maniguro sila kai basin ig human nila present sa ilang pag present sa o evidence nya mu demurrer ang pikas Prove bad faith or failure to exercise extraordinary diligence If the defendant will not file a demurrer and mu ingun lang sila nga we will not submit evidence and go ahead with the case. That is also possible mu risk ang lawyer. That is likely but the risk is dako kaayu kai ang court mag weigh sa evidence based on what is presented. o



•

•

• •

Air transportation

Saludo vs ca • • •

•

more or less the ruling of the court is similar to the ruling in nocum vs laguna tayabas although di gyud parehas sa nocum ang pronouncement sa supreme court with respect to inquiry in nocum the sc said that inquiry may be verbally made. Walay duty ang common carrier to make verbal inquiry o naa lang duty when there is evidence or necessary circumstance cause or causes of application that the baggage is dangerous and the common carr ier need to act then the common carrier is liable it can be verbally made o in saludo common carrier has the duty to make inquiry as to the general nature of the goods and the right to o accept the shipper’s marks as to the contents kinahanglan naa duty to inquire to the general nature of the goods  sa airway bill ok na ang common carrier nga mu rely og unsa ang nabutang. Patay nga lawas nga gi o ship sa laen lugar.  Dili duty sa common carrier to ask for repetition and open the box to see it for himself.  Sufficient na og unsa ang naka butang sa airway bill mao nan a Except when there are reasonable ground to inspect that the goods contained are illegal the  common carrier has the right to know and inspect

The reasonableness of the weight standards

Yrasegue vs PAL


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sa ato pa SC justified the dismissal of yrasegue. Sa iyang ka dako because of safety and equated to exercise of extraordinary diligence.

All in all I can summarize that it is very difficult to prove extraordinary diligence. If you are the lawyer of the common carrier you have to prove or answer all the questions. Kinahanglan creative ka.

if lawyer sa defendant then mangita og mga lusot

if the ship captain is not licensed it relates or connects to the ship owner that his captain is unlicensed. Example nay nalunod nga barko and the ship captain is unlicensed mu ingun ang ship owner nga I have no more liability nganu man nalunod man ang barko and I am invoking limited liability rule and you were able to establish that the captain is unlicensed. Then you have to prove who hired the ship captain you must prove that the ship owner has knowledge of the lack of skill of the captain because the captain is under his control.

As a rule it does not follow that if negligent ang captain then negligent pod ang ship owner.

First question is: what action may be filed in relation to the death of the passenger, injury, loss of goods, loss, deterioration or destruction? The principal action there is basically, at the start of class, we have been emphasizing that transportation is a contract, so the principal action is called the breach of contract, and as a result of that breach, plaintiff/s suffered damages. That's why you have to talk about damages -- moral, nominal, temperate, actual, liquidated. Now, even if your title is for damages, but in the allegations of your complaint, you should principally base it on a contract of transportation and a breach of that contract. Of course, t he court will not dismiss that action because it has no jurisdiction – since damages are only incidental to the principal action. Concurrent causes of action

Now, what is the meaning of concurrent causes of action? Meaning, you will only file one complaint and not separate them, because that is multiplicity of suits. Therefore, file one complaint only containaing different causes of action. By the phrase concurrence of action, it means that the action is based on different sources of obligation. For example, one may be based on contract, and the other one on quasi delict. I’m sure you now realize that if you go back to the first chapter about parties to a contract, that if there is a breach of contract, that means that you will only sue the party to the contract. If you are suing persons that are not part of the contract, the source of obligation is not contractual, but quasi-delict. If you sue the operator and the driver, you have two causes of action, which can concur in one complaint. Pananglitan ug bangga gud, just like the Calvo case (which is fairly recent by the way ), if you will be suing the operator, Calvo, you will also sue the driver of the bus, and the owner of the Prime Mover, WT Construction, then Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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your cause of action on the carrier is contractual, against the driver would be quasi delict, and on the employer would be negligence. I hope by now your realize how easy it is to invoke a breach of contract, unlike delict or quasi delict. Because the burden of proof in an action based on contract lies on the common car rier. But if it's based on quasidelict, it's your burden to prove that ther e was negligence, and if you do not prove that, the defendant may be absolved. Kasagaran kaso sa Traanspo nag involve ug bangga, bus or jeepney mabanggaan sa luyo, or just like what happened in Nova Transport in EDSA yesterday, natikwang ang bus and it fell on its side and naay mga pasahero nga nainjure. It also came out in the bar examination nga dili necessarily owner of another vehicle ang involved or which may be the proximate cause for the injury or death of the passenger. I recall in one of the bar exams nga naay passenger in a taxi unit nga nagsakay ug taxi, and tungod sa katraffic, niagi ang taxi sa sidewalk, then niagi ug under construction na building, nahulugan ug debris, namatay ang pasahero. That means the cause of action of the passenger is based on contract, and the cause of action against t he building owner is negligence. What is the meaning then of alternative c auses of action? This is related to the concurrence of causes of action, which means that in the complaint, you can pray for alternative reliefs or prayers. For example, you might be able to allege in your complaint, in the event that the court will not find the carrier guilty, that the court shall hold the car rier liable based on quasi delict. That is an alternative relief. Murag maniguro ka kai kung di ka kadaog sa iska cause of action, mangita kag lain, and that is allowed. But even if you have alternative reliefs of prayer, that does not give you the opportunity not to prove your case. Nganu man? Because even if you allege and you have no evidence, you might be liable to the other party, by alleging something na di nimo ma prove, by way of counterclaims. Mao na nga testimonies of witnesses may prove how negligence was committed by the defendants based on negligence or quasi delict. In the case of Calvo, there were those who said na before niabot sa curve ang Prime Mover, nitraverse na daw sa double solid line. There was also one who testified na paspas daw kaayo ang dagan downhill sa Pr ime Mover. Naa pud niingun na way break ang Prime Mover. All of these pieces of evidence can prove or disprove negligence on the defendant. Of course, you will note that if your cause of action is based on carriage, you will need to prove two elements: contract, and breach. Question: who shall be made defendants? If you want to be sure, all those people responsible: driver, carrier, owner of the other vehicle and the other driver pud. Even those who may not be party of the contract, but they may be impleaded based on a different cause of action. But before ka mu kuan ug party, dapat certain sa ka sa entity involved. Di lang kamuingon nga Calvo transportation, mao lang. Imung i-make sure nga ga-exist ang entity. Idetermine, for example, whether it is a corporation or an individual, maybe sole proprietor, engaged in the business owned by so and so. Solidary Liability

What about solidary liability?? Naay consistent rulings ang court, but there's a simang ruling, Construction Development vs Estrella. Ang nahitabo kai naay bus nga nainjured ang mga passeners, kai naay tr uck owned by plaintiff nga nibangga sa bus. Question sa kaning kasoha, nganung solidarily liable man mi (matod pas truck company) sa bus company, nga ang basis kai different causes of action? The Court said, citing the Fabre case, that the owner of other vehicle which collided with the common carrier is solidarily liable for the injured passengers. Reason for this? There are separate and distinct acts arising from the different sources of obligation which concur to produce the same injury. Importante ni siya. I would suggest you would write this down. Se parate and distinct acts, act of the bus Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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owner and the owner of the truck which rammed into the bus, arising from contract or quasi delict, which concurred to produce the same injury. Why did I empasize this? Because this is very important in relation to the case of Malayan Insurance vs Philippine Insurance. What happened in this case? Karemember mo itong Wyeth case nga ilang gipadeliver sa Reputable Company ilang mga gatas? Ang Wyeth ug ang Reputable. Ang W yeth iyang giinsure ang products sa Philippines Insurance. Ang products pud, based on Wyeth and Reputable, gi insure with Malayan. Gi rob man ang truck, so nawagtang ang products. Si Wyeth niclaim karon against Philippine First Insurance. Subrogated, Philippine First filed a case against Reputable. Reputable filed a third party complaint against Malayan, kai in kaso kung ma liable to siya, at least naay Malayan Insurance nga mureimbruse nako, which the court did. Court said okay, Reputable liable ka; okay Malayan, liable ka to Reputable. The contention now of Reputable is, dapat ako, dili ko solidarily liable with Malayan Insurance. That issue is about solidary liability. Question: can you apply the concept of joint ( inaudible term used by sir ) under torts ad damages and which was applied in most transpo cases in this case involving Malayan Insurance vs Philippines First Insurance? The court said Malayan’s and Reputable’s respective liabilities arose, kani ang important, from different obligations. Mao na akong gipaconnect ninyo sa phrase na: producing the same injury, separate and distinct acts which concurred to produce the same injuty. What is the obligation of Malayan – it is based on an insurance contract with Reputable. What about Reputable – it is based on the contract of carriage, so there is no solidary liability. I said that in the Estrella case, the owner of the vehicle was solidarily liable citing the Fabre case. Tan-awon nato ang Fabre case para makit-an kung consistent ba ang court. In that case, the first case cited by the Court in support of its decision was Dangwa case. The court said, dunay solidary liability between the bus company and the driver, because of different acts but resulting to one injury. Next, Bachelor Express vs CA, involving the driver and the bus company. Next, Gutierrez vs Gutierrez, where the Court said that drivers as well as owners of the two vehicles are jointly and severally liable for damages. In short, if the defendants involved drivers and owners of the two vehicles or three vehicles as the case may be, the liability is solidary. BUT IF the situation is similar to Malayan, liability is not solidary. You will note also in relation to solidary liability, in the case of Pere nas vs Zarate, Court said they could be jointly and severally liable by virtue of their respective negligence which caused the death of the child who got hit by the train and died. If mubalik ka sa Development Construction case, separate ac ts resulting to the same injury to siya. Unsa may negligence sa mga Perenas? Presumed. Sa PNR? The court said RTC was correct, because PNR did not ensure safety of others, walay cross bars, signals, etc. sa station. Naay guard nga gibutang, nga meaning kebaw sila sa r isk involved kung naay mutabok sa railway. Another case on solidary is Loadmasters vs Loadad(?). Gi engage ang ser vices sa defendants para ipadeliver ang mga merchandise, pero iya pung gipa-subcontract, iyang giengage ang services sa Loadmaster para ipagamit ang truck. So pagkiha karon, gkiha silang duha. Question: Kinsa sa ila ang liable? The Court said joint and several, because under Article 2194, kai solidary dapat if quasi delict, matod pas balaod. Again, ang nakaparat ani nila, puro common carrier ang duha. So ato pa, mere presumption of negligence daan, liable na silang duha, kai they need to rebut the presumptions against them. Are we clear on solidary? Notice of Claim

Let's proceed to notice of claim. Naa ra manis libro. Kung overland and coastwise and apparent, immediately. If not, 24hours. Failure to comply is a bar. Under COGSA, apparent immediately, if not, 3 days. Failure is not a bar. With respect to notice of claim, sa kaso sa Philippine Insurance, evidence is necessary to prove compliance. Facts: the Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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notice of damaged goods was done sa telephone by an employee to the vice president of the common carrier. The amount involved was P5M. Court said that the testimony of the VP who denied the conversation was more cre dible, kai it is contrary to business practice to merely make a verbal notice of claim that involved millions of pesos. Take note of the case of Aboitiz, (?) but take note that the court said na there are peculiar circumstances in that case that constrain us to rule differently . This ruling must be made pro ha vice. Meaning, only for purposes of this case. Literal meaning: for this particular occasion. Prescriptive period

Prescriptive period. Kung walay contract, 6 years, kung naa 10 years; quasi delict, 10. Although later on, ato nang masummarize tanang prescriptive period sa Transpo. Ato unyang igrapha na tanan, aron dali mamemorize. Damages

Let's go to damages. What is the rule if there is loss or injury? There is a corresponding damage. The exception is damnun absce injuria, or even if there is damage, there is no injury. Question: Can actual damages concur with temperate damages in the same claim? Di man pwede kai documentary evidence man ang actual damages, pero kung temperate, there is absence of proof. But take note on the same claim or the same subject matter of that claim. Pananglitan muingon ka, ang subject is about burial expenses, kung naa kay proof, makaclaim ka for burial. Kung wa kai proof, the court may award te mperate but not actual. But if it's a different claim, posible nga naa sila. Example: hospital expenses, naa kay receipt, entitled ka to actual damages. Pag adto sa burial, wa man kay r esibo, so di ka karecoer ug actual, pero temperate pwede -- on the same claim. Specific cases Victory Liner vs Gaman. Ang issue dinhi di kaayo lisod. Award sa RTC exemplary ang moral damages 400K. Ang maobserve nimo gilump sa court ang moral ug exemplary. Wa nalang nila bahina ba. Iyang giipon. Ang CA mao sad. The court said, the same cannot be lumped because they are based on different foundations. Different nature require separate determination. So ayaw ipuna ang damages ha? Philtranco vs Paras. Nganu ma? In this case, niaward ang SC ug temperate damages plus actual damages. PERO ang temperate kai for substantial losses sa surgery ug re habilitation sa katong injured party, and ang actual loss kai sa earning capacity ug cost of medicine. So awar ding temperate for surgery and rehab, and actual for the lost earnings and cost of medicines give rise to no incompatibility. That means, they can be compatible kai lahi man ang cases. These damages do not infringe the statutory prohibition against recovery of damages twice for the same act or omission.

Can temperate or actual concur with nominal? Assuming on the same issue or subject matter, dili, because ang actual ug ang temperate presupose a loss, whe reas ang nominal it does not involve a loss but rather a vindication of a right. Although be careful lang when you read cases, because naay mga kaso nga niingun na entitled ug nominal damages because of mental anguish, or naay anxiety nga nasuffer ang passenger. I can’t reconcile why anxiety can give the passenger nominal damages, maypag moral siguro, more or less accurate . Damages


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What are the damages recoverable? You have mental. Let's talk first about moral damages. As a general rule, the common carrier is not liable. Two exceptions: when there is death, prove death, then moral damages. Or guilty of fraud or bad faith, even if no death. In Northwest vs Chiong, giingnan ang pasahero nga adtoa lang ang ga barong para makakuha kag boarding pass, pero wa gipasakay kai gipainsert ang iska Amerikano. SC said: bad faith. Japan Airlines vs Imangan, the staff shouted at the passenger to stand up and arrogantly asked him to produce tr avel papers without courtesy. Bad faith again. PAL vs CA, nakanumdum mu atong indemnity bond sa minros? Wa sila kasakay sa San Fransisco kai nawala ilang indemnity bond kai sila ray nisakay? Court said there was bad faith because PAL discovered that the bond was lost only when it landed in San Fransisco. Sa ato pa, wala diay magcheck ang PAL sa Honolulu pa lang daan kung naa ba ang bond. Take note lang, in this case, the court awarded moral damages to the mother and to the grandmother. Nganu giapil ang lola? There is basis to award grandmother, kai naa man sa law, ascendants or descendants, pero dapat gicontest ang iyang personality. The guardian of the minors should have been the mother. Kai kung muclaim ang grandmother, way labot ang mother. Gichallege unta ang personality. Spouses Ong vs CA. Court: This concept of moral damages may be applied to physical injury. Di lang limited sa patay or bad faith, but may also be applied kung naay physical injury. In this case, dunay permanent scar sa iyahang forehead or loss of use of right eye. Iyang right arm could not function in a proper manner, so he suffered from mental anguish. Reminds me: wa pako kita ug kaso nga nikiha ang pasehero kai tungod sa dagkong bawud, nakuyawan siya. Makakiha ba kaha siya para ana? Remember that the law says death or injury. Pero ang law wala nagqualify as to the kind of injury. Perenas vs Zarate still on moral damages. 2.5M ang giaward sa court. Pinakadako so far. The court said it's just and reasonable. Katong bata nga padung Don Bosco, because the payment is to assuage the parents’ anguish over their son's violent and sudden death, moral shock over the senseless death. Ang nindot ani magpalami lami ug pleading, makakuha ug millions. That amount would not be too much for the anguish so experienced. Next, who is entitled to recover moral damages? In the case of Curso, brothers and sisters cannot recover moral damages. The law says spouse, illegit or legit descendants or ascendants. Exemplary damages. You may be entitled if you have temperate damages. In the case of Perenas, 1MPesos was awarded as exemplary. Take note ani kung kamoi plaintiff. The Court said that only in the amount of exemplary damages of 1M would it suffice to instill in them and others similarly situated, like the Perenas, the ever present need for greater vigilance in the conduct of a business imbued with public interest. So far, pinakadako gyud ni. Temperate damages. There is pecuniary loss, but the amount cannot be proven. In the case of Canada, walay proof sa value sa sugar. Temperate damages awarded, 250T pesos. Akong nabanatayan sa SC, kung imung ganahan iprove, katunga rai ihatag nimo. Murag fair ba. Next, actual damages. Must be pleaded and proven. In the case of Spouses Ong, niingun ang judge, kebaw siya nga ang expenses kai apil ang transpo sa pag adtog hospital and pagbalik pud, ug mga snacks2x, so iyang giapil sa pagcompute sa award. Giingnan ang judge nga dapat dili mu assume kung pila, but mu adduce ug evidence. The RTC’s findings lack basis, according to the Court. Under Transpo, what are the damages rec overable in case of death? Indemnity, 50K. Number 2 , indemnity for loss of earning capacity. What if namatay, sobra sa 80 anyos or 90 anyos? Actually, way ruling ana nga Transpo case, pero Thru the efforts of the Class of Room 405. Special thanks: Gregorio; Parawan; Dabon; Salas; Lulu; Bayalas; Caminade; Diao; Gan; Nardo; Jacildo; Rejuso; Cañada This material is intended only for review purposes exclusively for the benefit of USC College of Law Second Year Students Academic Year 2012-2013 (Pinaka-gahi nga batch)

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Transpo Law Midterms

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