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vs. HAMBURG-AMERICAN LINE, defendant-appellant. company in Manila to the effect that it should forward the cargo to
Vladivostock, if not by the Suevia then by some other steamer. This the
Crossfield & O'Brien for appellant. Lawrence & Ross for appellee. defendant company refused to do except upon the condition that the plaintiff
would agree to subject said cargo to liability upon general average to satisfy
the costs and expenses of the Suevia incident to its stay in the port of
STREET, J.: Manila. To this condition the plaintiff did not assent and on the contrary
thereupon demanded the immediate delivery of the cargo to it in Manila. The
In the spring of 1914, the plaintiff, the International Harvester Company in defendant company replied with an offer to deliver the cargo provided the
Russia, an American corporation, organized under the laws of the State of owner would deposit with the defendant company a sum of money
Maine, delivered to the defendant, the Hamburg-American Line, at equivalent to 20 per cent of the value of said cargo, as security for the
Baltimore, Maryland, to be laden on its steamer the Bulgaria, bound from aforesaid costs and expenses to be adjusted as general average. In this
that port to Hamburg, Germany, a large consignment of agricultural connection it may be stated that the costs and expenses incurred by the
machinery, consisting of 852 boxes, crates, and parcels, all of which were to Suevia from the date the ship entered the port of Manila until March 30,
be delivered to the order of the consignor at Vladivostock, Russia. The 1915, amounted to the sum of P63,024.50, which included port charges,
freight charges were then and there prepaid to the ultimate destination. repairs, and wages and maintenance of officers and crew.
The bill of lading which was issued to the plaintiff at Baltimore provided, Having thus far failed in its efforts to obtain possession of its property, the
among other things, that the goods should be forwarded by the defendant plaintiff company instituted the present action in the Court of First Instance of
company from Hamburg to Vladivostock at the ship's expense but at the risk the city of Manila upon February 13, 1915. The purpose of the proceeding is
of the owner of the goods. It was also provided that goods thus destined for to recover the possession of the cargo, together with damages for breach of
points beyond Hamburg should be subject to the terms expressed in the contract and unlawful detention of the property. At the time the action was
customary form of bill of lading in use at the time of shipment by the carrier instituted, or soon thereafter, the plaintiff obtained the delivery of the
completing the transit. property from the Suevia by means of a writ of replevin and forwarded it to
Vladivostock by another steamer. In its answer the defendant company
When the shipment arrived at Hamburg the carrier company transferred the denies liability for damages and asserts that it has a lien on the property for
cargo to the Suevia, a ship of its own line, and issued to itself therefor, as general average, as already indicated. In the court below judgment was
forwarding agent, another bill of lading in the customary form then in use in given in favor of the plaintiff, recognizing its right to the possession of the
the port of Hamburg, covering the transportation from Hamburg to goods and awarding damages to it in the sum of P5,421.28, the amount
Vladivostock. shown to have been expended in forwarding the goods to Vladivostock.
From this judgment the defendant appealed.
While the ship carrying said cargo was in the China Sea en route to
Vladivostock war broke out in Europe; and as the Suevia was a German The two main questions raised by the appeal are, first whether the cargo
vessel, the master considered it necessary to take refuge in the nearest belonging to the plaintiff is liable to be made to contribute, by way of general
neutral port, which happened to be Manila. Accordingly he put into this average, to the costs and expenses incurred by reason of the internment of
harbor on August 6, 1914, and at the date of the trial in the court below the the Suevia in the port of Manila, and, secondly, whether the defendant is
ship still remained in refuge in this port. liable for the expenses of transferring the cargo to another ship and
transporting it to the port of destination.
It must not be forgotten that the outbreak of the war between Germany and We have not overlooked the provision in the original bill of lading which
provides that freight paid in advance will not be returned, goods lost or not
lost. There is also a somewhat similar provision in the second bill of lading
issued at Hamburg. These provisions contemplate the special case of the
loss of the goods and can not be extended to the situation which arises
when the ship for purposes of its own protection abandons the enterprise.
From what has been said it is apparent that the Court of First Instance was
correct not only in adjudging possession of the cargo to the plaintiff but also
in imposing upon the defendant company liability with respect to the amount
expended by the plaintiff in forwarding the goods to their destination.
The only other point raised by the bill of exceptions, which we deem it
necessary to notice, is based on a provision in the bill of lading to the effect
that all disputes arising under the contract are, at the option of the defendant
company, to be decided according to German law and exclusively by the
Hamburg courts. From this it is argued that the Court of First Instance erred
in assuming jurisdiction of the action and that the case should have been
decided in accordance with the principles of German law.
It can not be admitted that a provision of this character has the effect of
ousting the jurisdiction of the court of the Philippine Islands in the matter now
before it. An express agreement tending to deprive a court of jurisdiction
conferred on it by law is of no effect. (Molina vs. De la Riva, 6 Phil., 12.)
Besides, whatever the effect of this provision, the benefit of it was waived
when the defendant company appeared and answered generally without
objecting to the jurisdiction of the court.
As regards the contention that the rights of the parties should be determined
in accordance with the law of Germany, it is sufficient to say that when it is
proposed to invoke the law of a foreign country as supplying the proper rules
for the solution of a case, the existence of such law must be pleaded and
proved. Defendant has done neither. In such a case it is to be presumed that
the law prevailing in the foreign country is the same as that which prevails in
our own.
The judgment appealed from is affirmed, with costs against the appellant. So
ordered.