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45
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* THIRD DIVISION.
699
700
701
PANGANIBAN, J.:
The Case
1
Before us is a Petition for Review under Rule 45 of2 the
Rules of Court, assailing the October
3
9, 2002 Decision and
the December 29, 2003 Resolution of the Court of Appeals
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702
The Facts
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Reversing the trial court, the CA held that the vessel was
not seaworthy when it sailed for Manila. Thus, the loss of
the cargo was occasioned
12
by petitioner’s fault, not by a
fortuitous event. 13
Hence, this recourse.
The Issues
“A. Whether or not the survey report of the cargo surveyor, Jesus
Cortez, who had not been presented as a witness of the said report
during the trial of this case before the lower court can be admitted
in evidence to prove the alleged facts cited in the said report.
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9 Ibid. The case was docketed as Civil Case No. 92-63159 and raffled to
Branch 42.
10 Ibid.
11 RTC Decision dated December 7, 1999, p. 9; Rollo, p. 58.
12 Assailed Decision, p. 4; Rollo, p. 39.
13 The case was deemed submitted for decision on October 25, 2004,
upon this Court’s receipt of petitioner’s sparse, 6-page (with only two
pages of argument) Memorandum, signed by Atty. Romualdo M. Jubay.
Respondent’s Memorandum, signed by Atty. Frederick C. Angel, was
received by this Court on October 7, 2004.
704
First Issue:
Liability for Loss of Cargo
Question of Fact
The resolution of the present case hinges on whether the
loss of the cargo was due to a fortuitous event. This issue
involves primarily a question of fact, notwithstanding
petitioner’s claim that it pertains only to a question of law.
As a general rule, questions
15
of fact may not be raised in a
petition for review. The present case serves as an
exception to this rule, because the factual16findings of the
appellate and the trial courts vary. This Court
meticulously reviewed the records, but found no reason to
reverse the CA.
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705
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706
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v. Court of Appeals, 316 Phil. 13, 19; 245 SCRA 796, 800, July 12, 1995.
22 National Steel Corporation v. Court of Appeals, 347 Phil. 345, 362;
283 SCRA 45, 62, December 12, 1997; Valenzuela Hardwood and
Industrial Supply, Inc. v. Court of Appeals, 274 SCRA 642, 654, June 30,
1997.
23 RTC Decision dated December 7, 1999, pp. 4-6; Rollo, pp. 53-55.
24 Art. 1733 of the Civil Code.
25 Calvo v. UCPB General Insurance Co., Inc., 429 Phil. 244, 252; 379
SCRA 510, 517, March 19, 2002; Compania Maritima v. Court of Appeals,
164 SCRA 685, 692, August 29, 1988.
26 Art. 1735 of the Civil Code.
707
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708
and (d) the obligor must have been free from any
participation29 in the aggravation of the resulting injury to
the creditor.
To excuse the common carrier fully of any liability, the
fortuitous event must
30
have been the proximate and only
cause of the loss. Moreover, it should have exercised due
diligence to prevent or minimize the loss before,
31
during and
after the occurrence of the fortuitous event.
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709
“In May 1993, upon the request of [petitioner’s] counsel, she issued a weather
bureau report or certification, an official record of Pagasa, which weather report is
based on their weather station at Puerto Princesa, Palawan. x x x The report on
the weather condition on October 21, 1991 at around 11:00 am to 2:00 pm was
weathercast sky. The bad weather condition on October 25, 26, and 27, 1991 was
caused by typhoon ‘Trining’ but said typhoon then was far from Palawan, which
was only signal No. 1. Tropical storm ‘Trining’ entered the Philippine area of
responsibility on October 24. Pagasa did issue a warning that said storm was
approaching the Philippines. Storm ‘Trining’ was classified, as super typhoon with
a maximum of 185 kilometer[s] per hour and the coverage was big. On October 24,
1991, typhoon ‘Trining’ hit Batangas, the Ilocos Provinces, Isabela, but not Metro
Manila or Palawan. Maybe Palawan was affected but if ever it was affected it was
only minimal.” RTC Decision dated December 7, 1999, p. 6; Rollo, p. 55.
710
36
entering the barge. This fact was confirmed during his
cross-examination, as shown by the following brief
exchange:
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“On October 25, 1991, he was assigned in the tugboat ‘M/T Ayalit.’ x x x [The
tugboat] was towing the barge ‘Judy VII’ which was carrying silica sand. x x x He
was an ordinary seaman in 1991 and it was his first year as a seaman, although
he made several trips to Palawan and Manila. x x x He does not know the
qualification[s] of a seaman but he was then a second year high school [student]
and though he did not take any examination, he knew about navigation. When the
incident happened in 1991[,] he had no seaman book as it was not yet strict at the
time and the seaman book can be dispensed with. He was only 18 years and has an
actual training of the work when he boarded the tugboat. Even if he has no formal
schooling, the master allowed him to handle the wheel of the tugboat. When they
left San Vicente, Palawan for Manila on said date at around 4:00 pm, the weather
was fair. When they passed by Linapakan Island, the waves were quite big and
the wind was a little bit strong. At that point in time, the barge patrol of ‘Judy VII’
wave[d] his hand [at] them. Their captain decided to approach the barge. They
noticed that [there was] water already inside the barge. About two (2) days later,
their captain decided to beach the barge. The said barge then sank and only the
barge’s house at the back portion of the barge (‘the puppa’) was above water. He
could only remember that they save[d] the bargemen and proceeded to El Nido,
Palawan where they secured themselves to save the tugboat. But he could no
longer remember how long a time they stayed thereat nor if they went back to the
barge ‘Judy VII.’ ” RTC Decision, p. 6; Rollo, p. 55.
711
x x x x x x x x x
Atty. Baldovino, Jr.:
Your Honor, what I am asking [relates to the] action
taken by the officers and crew of tugboat Ayalit and barge
Judy VII x x x to prevent the sinking of barge Judy VII?
x x x x x x x x x
Court:
Mr. witness, did the captain of that tugboat give any
instruction on how to save the barge Judy VII?
Joey Draper:
I can no longer37remember sir, because that happened [a]
long time ago.”
Second, the alleged fortuitous event was not the sole and
proximate cause of the loss. There is a preponderance of
evidence that
38
the barge was not seaworthy when it sailed
for Manila. Respondent was able to prove that, in the hull
of the barge, there were 39holes that might have caused or
aggravated the sinking. Because the presumption of
negligence or fault applied to petitioner, it was incumbent
upon it to show that there were no holes; or, if there were,
that they did not aggravate the sinking.
Petitioner offered no evidence to rebut the existence of
the holes. Its witness, Domingo A. Luna, testified
40
that the
barge was in “tip-top” or excellent condition, but that
41
he
had not personally inspected it when it left Palawan.
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712
Second Issue:
Admissibility of the Survey Report
45
Petitioner claims that the Survey Report prepared by
Jesus Cortez, the cargo surveyor, should not have been
admitted in evidence. The Court46 partly agrees. Because he
did not testify during the trial, then the Report that he
had prepared was hearsay and therefore inadmissible for
the purpose of proving the truth of its contents.
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713
48
the final Adjustment Report conducted by their company.
The final Report showed that the barge was not seaworthy
because of the existence of the holes. Manlapig testified
that he had prepared that Report after taking into account
the findings of the surveyor, as well as the pictures and the
49
sketches of the place where the sinking occurred.
Evidently, the existence of the holes was proved by the
testimonies of the witnesses, not merely by Cortez’ Survey
Report.
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48 Ibid.
49 TSN dated December 15, 1994, pp. 9-13.
50 §1 of Rule 132 of the Rules of Court.
51 Rule 130 of the Rules of Court.
52 RTC Order dated March 17, 1995; Records, p. 165.
53 Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA
476; People v. Crispin, 383 Phil. 919, 931; 327 SCRA 167, 178, March 2,
2000; People v. Villeza, 127 SCRA 349, 359, January 31, 1984; Paa v.
Chan, 128 Phil. 815, 821; 21 SCRA 753, 758, October 31, 1967.
714
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715
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