Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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COMPLAINT

PLAINTIFF Enron Insurance Co., through counsel,

respectfully alleges that:

THE PARTIES

1. Plaintiff ENRON INSURANCE CO. is a domestic

corporation duly organized and existing under and by

virtue of the laws of the Republic of the

Philippines, which insures cargoes coming from

foreign countries with principal office at 123 Perea

St., Makati City, where it may be served with

notices, orders, and court processes of this

Honorable Court;

2. Defendant PHILIPPINE AIRLINES is a corporation duly

organized and existing under and by virtue of the

laws of the Republic of the Philippines, which

transports cargoes to and from Switzerland, with a

principal office at Philippine Airlines, Roxas

Boulevard, Pasay City, where it may be served with

notices, orders, and other court processes. At the

time material to this case, defendant Philippine

Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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Airlines was the carrier of the cargo consisting of

two large boxes of lighting fixtures;

3. Defendant CARGADOR MACHO INC. is a corporation duly

organized and existing under and by virtue of the

laws of the Republic of the Philippines, an arrastre

operator which handles cargoes and shipments of

different airline companies in the Philippines and

store them in its warehouse, with principal office at

Cargador Macho Inc. Unit 103 Net One Center Fort

Bonifacio, Taguig City, where it may be served with

notices, orders, and other court processes. At the

time material to this case, defendant Cargador Macho

Inc. was the handler of the cargo sent through

Philippine Airlines consisting of two large boxes of

lighting fixtures and its representatives were the

ones who found out of the dent on one of the boxes.

ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

4. Plaintiff is the insurer of the cargo consisting of

two large boxes of lighting fixtures sent by ABC

Express Corporation;

4.1. Diamond Luxury Hotel, the consignee, ordered two

large boxes of lighting fixtures from Swiss

Electronics and Lighting Corporation;

Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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4.2. Diamond Luxury Hotel paid for its shipping costs

to ABC Express Corporation and cargo insurance

premiums to plaintiff ENRON INSURANCE CO. for the

declared value of the shipment Two Million Pesos

(Php2,000,000.00);

4.3. On 15 July 2010, the cargo consisting of two

large boxes of lighting fixtures was sent by ABC

Express Corporation through defendant PHILIPPINE

AIRLINES;

5. Defendant PHILIPPINE AIRLINES is the airline where

the cargo consisting of two large boxes of lighting

fixtures was loaded from Switzerland to be

transported to the Philippines;

6. When the cargo consisting of two large boxes of

lighting fixtures was loaded on the plane of the

defendant PHILIPPINE AIRLINES, defendant PHILIPPINE

AIRLINES certified that it received the cargo in good

condition;

7. When the plane of the defendant PHILIPPINE AIRLINES

carrying the cargo consisting of two large boxes of

lighting fixtures arrived in the Philippines on 24

July 2010, in NAIA 3, it was released to defendant

CARGADOR MACHO INC., one of the accredited cargo

handlers for cargo transported from foreign countries

Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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into the Philippines. A copy of the bill of lading is

attached as Annex “A”;

8. When defendant CARGADOR MACHO INC. received the cargo

consisting of two large boxes with lighting fixtures

and under their custody, it observed that there was a

dent in one of the boxes, a corresponding report of

the defect was made and furnished to defendant

PHILIPPINE AIRLINES’ representatives and informed

Diamond Luxury Hotel, the consignee, of the defect;

9. The respective representatives of Diamond Luxury

Hotel, defendant PHILIPPINE AIRLINES and defendant

CARGADOR MACHO INC. then opened the box with the dent

and discovered that the cargo contained therein was

totally damaged;

10. The consignee, Diamond Luxury Hotel, as the assured

client, filed a claim with plaintiff ENRON INSURANCE

CO.;

11. Accordingly, plaintiff ENRON INSURANCE CO. conducted

the necessary inspection of the cargo and declared

the lighting fixtures inside the box with the dent, a

total loss and paid Diamond Luxury Hotel the value of

such cargo in the amount of One Million Pesos (Php

1,000.000.00). A copy of the receipt of payment dated

31 July 2010 is attached as Annex “B”;

Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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12. After payment by plaintiff ENRON INSURANCE CO., as

insurer of the cargo, of the full value of the

shipment, and pursuant to Article 2207 of the Civil

Code of the Philippines, Diamond Luxury Hotel

assigned and transferred to plaintiff each and all

claims and demands against any person or property

arising from or connected with such loss or damage,

and plaintiff ENRON INSURANCE CO. is, therefore,

subrogated to all rights, including the right to

claim actual damages and other reliefs, which assured

and Diamond Luxury Hotel has against defendant

herein. A copy of the Release and Quitclaim dated 05

August 2010 and signed by Mrs. Gregoria De Jesus,

Manager and authorized representative of Diamond

Luxury Hotel is attached as Annex “C”;

13. The damage occurred while the defendant PHILIPPINE

AIRLINES had custody of the cargo and failed to

discharge the same or, alternately, after discharge

of the cargo, while defendant CARGADOR MACHO INC. had

custody of the cargo of two boxes with lighting

fixtures, in either of which case there was a

violation of the duty properly to safely carry and

discharge the goods on the part of the defendant

PHILIPPINE AIRLINES or, in the alternative, to make

Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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delivery of the goods on the part of defendant

CARGADOR MACHO INC.;

14. Plaintiff ENRON INSURANCE INC. wrote three (3)

demand letters to defendant PHILIPPINE AIRLINES and

defendant CARGADOR MACHO INC. demanding payment of

the amount of One Million Pesos (Php 1,000,000.00)

for the cost of the damaged cargo. Both defendants

PHILIPPINE AIRLINES and CARGADOR MACHO INC. ignored

the letter. Copies of these letters dated 20 August

2010, 08 September 2010, and 06 October 2010 are

attached as Annexes “D”, “E”, “F”, “G”, “H” and “I”,

respectively;

15. Plaintiff ENRON INSURANCE CO. endorsed the case to

undersigned counsel;

15.1. Acting on the endorsement of plaintiff ENRON

INSURANCE CO., counsel wrote a letter addressed to

defendant PHILIPPINE AIRLINES and defendant

CARGADOR MACHO INC. demanding the payment by both

of them of the sum of Php 1,000,000.00 for the

cost of the damaged cargo. A copy of the said

letter is attached as Annexes “K” and ANNEX “L” ;

15.2. Again, defendant PHILIPPINE AIRLINES and

defendant CARGADOR MACHO INC. ignored plaintiff’s

lawful demand;
Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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16. Despite their receipt of plaintiff’s demand letters,

defendants unjustifiably failed and refused and still

fail and refuse to pay plaintiff the total amount of

One Million Pesos (PHP 1,000,000.00). Thus,

plaintiff Enron Insurance Co. is compelled to file

this present Complaint for Recovery of Sum and

Damages against herein defendants.

FIRST CAUSE OF ACTION

17. Plaintiff repleads by reference all the foregoing

allegations;

18. Under Article 1733 of the Civil Code of the

Philippines, common-carriers, from the nature of

their business and for reasons of public policy, are

bound to observe extraordinary diligence in the

vigilance over the goods. Likewise, under Article

1735 of the said Code, in all cases other than those

mentioned in Article 1734 of the said Code, if the

goods are lost, destroyed, or deteriorated, common

carriers are presumed to have been at fault or to

have acted negligently, unless they proved that they

observed extraordinary diligence as required by

Article 1733 of the said Code;

Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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19. Defendant PHILIPPINE AIRLINES, acted negligently and

did not observe extraordinary diligence in the

vigilance over the cargo consisting of two boxes of

lighting fixtures, which caused the total damage and

loss of the cargo;

20. Due to the failure of defendant PHILIPPINE AIRLINES

to observe the extraordinary diligence in the

vigilance over the cargo consisting of two boxes of

lighting fixtures, caused total damage and loss of

the cargo in the amount of One Million Pesos

(Php1,000.000.00);

21. Despite demands, defendant PHILIPPINE AIRLINES

unjustifiably refused and continues to refuse to pay

the amount of One Million Pesos (Php1,000,000.00).

SECOND CAUSE OF ACTION

22. Plaintiff repleads by reference all the foregoing

allegations;

23. As shown, defendant CARGADOR MACHO INC., having thus

received the said cargo which was fully discharged

unto the care and custody of it, it goes without

saying that it has the responsibility to receive and

take good care of the cargo in order that it may be

Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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delivered completely to the consignee, DIAMOND LUXURY

HOTEL, to whom they belong;

24. Due to the failure of defendant CARGADOR MACHO INC.

to exercise due care and ensure that the cargo be

delivered completely to the consignee, it caused

total damage and loss of one of the boxes of the

cargo in the amount of One Million Pesos

(Php1,000.000.00), and thus is solidarily liable with

defendant PHILIPPINE AIRLINES;

25. Despite demands, defendant CARGADOR MACHO INC.

unjustifiably refused and continues to refuse to pay

the amount of One Million Pesos (Php1,000,000.00).

THIRD CAUSE OF ACTION

26. Plaintiff repleads by reference all the foregoing

allegations;

27. As shown, in failing to observe extraordinary

diligence in the vigilance over the goods and its

subsequent unjustified and unreasonable refusal to

pay the damages and loss of the shipment despite

plaintiff’s several lawful demands, defendants acted

Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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with malice, and in a wanton, fraudulent, reckless

and malevolent manner, and by way of example or

correction for the public good, defendants should be

made to pay plaintiff exemplary damages in the amount

of Three Hundred Thousand Pesos (Php 300,000.00).

FOURTH CAUSE OF ACTION

28. Plaintiff repleads by reference all the foregoing

allegations;

As a direct consequence of defendants’ refusal to

pay for the damage they caused, plaintiff was

compelled to litigate and thereby incur expenses for

litigation and attorney’s fees, in the amount of

Three Hundred Thousand Pesos (Php 300,000.00), which

defendant should be made liable to pay plaintiff.

PRAYER

Wherefore, it is respectfully prayed of this

Honorable Court that, after due notice and hearing,

judgment be rendered ordering defendant to pay:

1. Under the First Cause of Action and Second Cause

of Action, the amount of One Million Pesos (Php

Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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1,000,000.00) representing the amount paid by

plaintiff for the loss of the cargo of assured

Diamond Luxury Hotel;

2. Under the Third Cause of Action, Three Hundred

Thousand Pesos (Php 300,000.00) by way of

exemplary damages;

3. Under the Fourth Cause of Action, Three Hundred

Thousand Pesos (Php 300,000.00) by way of

attorney’s fees and litigation expenses; and

4. Costs of suit.

Plaintiff further prays for such other reliefs and

remedies as may be just and equitable under the

premises.

Makati City, Philippines, 03 December 2010 .

YSAAC and Associates Law Office

Counsel for the Plaintiff
203 Net One Center,
Fort Bonifacio,
Taguig City
Telephone No. (02) 517 2323

By:

MARIA RAISA HELGA B. YSAAC

Roll No. 7777
IBP O.R. No. 1234 11/14/2001 Makati City
PTR No. 5678 10/24/2001 Makati City
MCLE Compliance No. III-1234 03/03/2009
Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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Republic of the Philippines)

City of Makati ) SS.

VERIFICATION AND
CERTIFICATION OF NON-FORUM SHOPPING

I, JOSE A. MAKATANGAY, of legal age, Filipino, with

office address at 123 Perea St., Makati City, being
duly sworn in accordance with law, depose and state:

1. I am the Manager of Enron Insurance Co. and, in

that official capacity, I am authorized under Enron
Insurance Co. Board Resolution No. 87 dated September
7, 2005 to sign this Verification and Certification
Against Forum Shopping. A copy of the said Board
Resolution is attached as Annex “L” ;

2. In my capacity as such, I have caused the

preparation of the foregoing COMPLAINT filed with this
Honorable Court;
Complaint, Enron Insurance Co. v. Philippine Airlines and Cargador Macho Inc.

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3. I have read and understood the contents of this
pleading and that the same are true and correct of my
own knowledge and on the basis of the authentic records
in the possession of the Enron Insurance Co.;

4. If I should learn that the same or similar

action or claim has been filed or is pending, I shall
report this fact within five (5) days therefrom to this
Honorable Court;

IN WITNESS HEREOF, I have hereunto affixed my hand

this __ day of _____ 2010 at Makati City.

JOSE A. MAKATANGAY

Affiant

SUBSCRIBED AND SWORN to before me at Makati City,

Philippines this __ day of ______ 2010.

Notary Public