G.R. No.
L-9671             August 23, 1957 It appears that plaintiff boarded a bus of defendant as paying passenger from Ligao,
CESAR L. ISAAC, plaintiff-appellant,  collided with a pick-up car which was coming from the opposite direction and, as a,
vs.
A. L. AMMEN TRANSPORTATION CO., INC., defendant-appellee.
Angel S. Gamboa for appellant.
Manuel O. Chan for appellee.
BAUTISTA ANGELO, J.:
A. L. Ammen Transportation Co., Inc., hereinafter referred to as defendant, is a
corporation engaged in the business of transporting passengers by land for
compensation in the Bicol provinces and one of the lines it operates is the one
connecting Legaspi City, Albay with Naga City, Camarines Sur. One of the buses
which defendant was operating is Bus No. 31. On May 31, 1951, plaintiff boarded
said bus as a passenger paying the required fare from Ligao, Albay bound for Pili,
Camarines Sur, but before reaching his destination, the bus collided with a motor
vehicle of the pick-up type coming from the opposite direction, as a result of which
plaintiff's left arm was completely severed and the severed portion fell inside the bus.
Plaintiff was rushed to a hospital in Iriga, Camarines Sur where he was given blood
transfusion to save his life. After four days, he was transferred to another hospital in
Tabaco, Albay, where he under went treatment for three months. He was moved later
to the Orthopedic Hospital where he was operated on and stayed there for another
two months. For these services, he incurred expenses amounting to P623.40,
excluding medical fees which were paid by defendant.
As an aftermath, plaintiff brought this action against defendants for damages alleging
that the collision which resulted in the loss of his left arm was mainly due to the gross
incompetence and recklessness of the driver of the bus operated by defendant and
that defendant incurred in culpa contractual arising from its non-compliance with its
obligation to transport plaintiff safely to his, destination. Plaintiff prays for judgment
against defendant as follows: (1) P5,000 as expenses for his medical treatment, and
P3,000 as the cost of an artificial arm, or a total of P8,000; (2) P6,000 representing
loss of earning; (3) P75,000 for diminution of his earning capacity; (4) P50,000 as
moral damages; and (5) P10,000 as attorneys' fees and costs of suit.
Defendant set up as special defense that the injury suffered by plaintiff was due
entirely to the fault or negligence of the driver of the pick-up car which collided with
the bus driven by its driver and to the contributory negligence of plaintiff himself.
Defendant further claims that the accident which resulted in the injury of plaintiff is
one which defendant could not foresee or, though foreseen, was inevitable.
The after trial found that the collision occurred due to the negligence of the driver of
the pick-up car and not to that of the driver of the bus it appearing that the latter did
everything he could to avoid the same but that notwithstanding his efforts, he was not
able to avoid it. As a consequence, the court dismissed complaint, with costs against
plaintiff. This is an appeal from said decision.
Albay, bound for Pili, Camarines Sur, but before reaching his destination, the bus
result, his left arm was completely severed and fell inside the back part of the bus.
Having this background in view, and considering that plaintiff chose to hold defendant
liable on its contractual obligation to carry him safely to his place of destination, it
becomes important to determine the nature and extent of the liability of a common
carrier to a passenger in the light of the law applicable in this jurisdiction.
In this connection, appellant invokes the rule that, "when an action is based on a
contract of carriage, as in this case, all that is necessary to sustain recovery is proof
of the existence of the contract of the breach thereof by act or omission", and in
support thereof, he cites several Philippine cases.1 With the ruling in mind, appellant
seems to imply that once the contract of carriage is established and there is proof that
the same was broken by failure of the carrier to transport the passenger safely to his
destination, the liability of the former attaches. On the other hand, appellee claims
that is a wrong presentation of the rule. It claims that the decisions of this Court in the
cases cited do not warrant the construction sought to be placed upon, them by
appellant for a mere perusal thereof would show that the liability of the carrier was
predicated not upon mere breach of its contract of carriage but upon the finding that
its negligence was found to be the direct or proximate cause of the injury complained
of. Thus, appellee contends that "if there is no negligence on the part of the common
carrier but that the accident resulting in injuries is due to causes which are inevitable
and which could not have been avoided or anticipated notwithstanding the exercise of
that high degree of care and skill which the carrier is bound to exercise for the safety
of his passengers", neither the common carrier nor the driver is liable therefor.
We believe that the law concerning the liability of a common carrier has now suffered
a substantial modification in view of the innovations introduced by the new Civil Code.
These innovations are the ones embodied in Articles 1733, 1755 and 1756 in so far
as the relation between a common carrier and its passengers is concerned, which, for
ready reference, we quote hereunder:
ART. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extra ordinary diligence in the
vigilance over the goods and for the safety of the passengers transported by
them according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further
expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the
extraordinary diligence for the safety of the passengers is further set forth in
articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely as far
as human care and foresight can provide, using the utmost diligence of very
cautious persons, with a due regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common carriers
are presumed to have been at fault or to have acted negligently, unless they
 prove that they observed extraordinary diligence as prescribed in articles
1733 and 1755.
The Code Commission, in justifying this extraordinary diligence required of a common
carrier, says the following:
A common carrier is bound to carry the passengers safely as far as human
care and foresight can provide, using the utmost deligence of very cautions
persons, with due regard for all circumstances. This extraordinary diligence
required of common carriers is calculated to protect the passengers from the
tragic mishaps that frequently occur in connection with rapid modern
transportation. This high standard of care is imperatively demanded by the
precariousness of human life and by the consideration that every person
must in every way be safeguarded against all injury. (Report of the Code
Commission, pp. 35-36)" (Padilla, Civil Code of the Philippines, Vol. IV, 1956
ed., p. 197).
From the above legal provisions, we can make the following restatement of the
principles governing the liability of a common carrier: (1) the liability of a carrier is
contractual and arises upon breach of its obligation. There is breach if it fails to exert
extraordinary diligence according to all circumstances of each case; (2) a carrier is
obliged to carry its passenger with the utmost diligence of a very cautious person,
having due regard for all the circumstances; (3) a carrier is presumed to be at fault or
to have acted negligently in case of death of, or injury to, passengers, it being its duty
to prove that it exercised extraordinary diligence; and (4) the carrier is not an insurer
against all risks of travel.
The question that now arises is: Has defendant observed extraordinary diligence or
the utmost diligence of every cautious person, having due regard for all
circumstances, in avoiding the collision which resulted in the injury caused to the
plaintiff?
After examining the evidence in connection with how the collision occurred, the lower
court made the following finding:
Hemos examinado muy detenidamente las pruebas presentadas en la vista,
principalmente, las declaraciones que hemos acotado arriba, y hernos
Ilegado a la conclusion de que el demandado ha hecho, todo cuanto
estuviere de su parte para evitar el accidente, pero sin embargo, no ha
podido evitarlo.
EI hecho de que el demandado, antes del choque, tuvo que hacer pasar su
truck encima de los montones de grava que estaban depositados en la orilla
del camino, sin que haya ido mas alla, por el grave riesgo que corrian las
vidas de sus pasajeros, es prueba concluyente de lo que tenemos dicho, a
saber: — que el cuanto esuba de su parte, para evitar el accidente, sin que
haya podidoevitardo, por estar fuera de su control.
The evidence would appear to support the above finding. Thus, it appears that Bus
No. 31, immediately prior to the collision, was running at a moderate speed because it
had just stopped at the school zone of Matacong, Polangui, Albay. The pick-up car
was at full speed and was running outside of its proper lane. The driver of the bus,
upon seeing the manner in which the pick-up was then running, swerved the bus to
the very extreme right of the road until its front and rear wheels have gone over the
pile of stones or gravel situated on the rampart of the road. Said driver could not
move the bus farther right and run over a greater portion of the pile, the peak of which
was about 3 feet high, without endangering the safety of his passengers. And
notwithstanding all these efforts, the rear left side of the bus was hit by the pick-up
car.
Of course, this finding is disputed by appellant who cannot see eye to eye with the
evidence for the appellee and insists that the collision took place because the driver
of the bus was going at a fast speed. He contends that, having seen that a car was
coming from the opposite direction at a distance which allows the use of moderate
care and prudence to avoid an accident, and knowing that on the side of the road
along which he was going there was a pile of gravel, the driver of the bus should have
stopped and waited for the vehicle from the opposite direction to pass, and should
have proceeded only after the other vehicle had passed. In other words, according to
appellant, the act of the driver of the bus in squeezing his way through of the bus in
squeezing his way through between the oncoming pick-up and the pile of gravel
under the circumstances was considered negligent.
But this matter is one of credibility and evaluation of the evidence. This is evidence.
This is the function of the trial court. The trial court has already spoken on this matter
as we have pointed out above. This is also a matter of appreciation of the situation on
the part of the driver. While the position taken by appellant appeals more to the sense
of caution that one should observe in a given situation to avoid an accident or mishap,
such however can not always be expected from one who is placed suddenly in a
predicament where he is not given enough time to take the course of action as he
should under ordinary circumstances. One who is placed in such a predicament
cannot exercise such coolness or accuracy of judgment as is required of him under
ordinary circumstances and he cannot therefore be expected to observe the same
judgment, care and precaution as in the latter. For this reason, authorities abound
where failure to observe the same degree of care that as ordinary prudent man would
exercise under ordinary circumstances when confronted with a sadden emergency
was held to be warranted and a justification to exempt the carrier from liability. Thus, it
was held that "where a carrier's employee is confronted with a sudden emergency,
the fact that he is obliged to act quickly and without a chance for deliberation must be
taken into account, and he is held to the some degree of care that he would otherwise
be required to exercise in the absence of such emergency but must exercise only
such care as any ordinary prudent person would exercise under like circumstances
and conditions, and the failure on his part to exercise the best judgement the case
renders possible does not establish lack of care and skill on his part which renders
the company, liable. . . . (13 C. J. S., 1412; 10 C. J.,970). Considering all the
circumstances, we are persuaded to conclude that the driver of the bus has done
what a prudent man could have done to avoid the collision and in our opinion this
relieves appellee from legibility under our law.
A circumstances which miliates against the stand of appellant is the fact borne out by
the evidence that when he boarded the bus in question, he seated himself on the left
side thereof resting his left arm on the window sill but with his left elbow outside the
window, this being his position in the bus when the collision took place. It is for this
reason that the collision resulted in the severance of said left arm from the body of
appellant thus doing him a great damage. It is therefore apparent that appellant is
guilty of contributory negligence. Had he not placed his left arm on the window sill
with a portion thereof protruding outside, perhaps the injury would have been avoided
as is the case with the other passenger. It is to be noted that appellant was the only
victim of the collision.
It is true that such contributory negligence cannot relieve appellee of its liability but
will only entitle it to a reduction of the amount of damage caused (Article 1762, new
Civil Code), but this is a circumstance which further militates against the position
taken by appellant in this case.
It is the prevailing rule that it is negligence per se for a passenger on a
railroad voluntarily or inadvertently to protrude his arm, hand, elbow, or any
other part of his body through the window of a moving car beyond the outer
edge of the window or outer surface of the car, so as to come in contact with
objects or obstacles near the track, and that no recovery can be had for an
injury which but for such negligence would not have been sustained. (10 C.
J. 1139)
Plaintiff, (passenger) while riding on an interurban car, to flick the ashes,
from his cigar, thrust his hand over the guard rail a sufficient distance
beyond the side line of the car to bring it in contact with the trunk of a tree
standing beside the track; the force of the blow breaking his wrist. Held, that
he was guilty of contributory negligence as a matter of law. (Malakia vs.
Rhode Island Co., 89 A., 337.)
Wherefore, the decision appealed from is affirmed, with cost against appellant.
G.R. No. L-6092             March 8, 1912
TAN CHIONG SIAN, plaintiff-appellee,  contained a list of the goods received and, printed on the back thereof were the terms
vs.
INCHAUSTI AND CO., defendant-appellant.
Haussermann, Cohn and Fisher for appellant.  answer; that Ong Bieng Sip accepted the said bills of lading and the contract
O'Brien and DeWitt for appellee.
TORRES, J.:
This is an appeal through bill of exceptions, by counsel for the firm of Inchausti & Co.,
from a judgment rendered by the Honorable A.S. Crossfield, judge.
On January 11, 1909, the Chinaman, Tan Chiong Sian or Tan Chinto, filed a written
complaint, which was amended on the 28th of the same month and again amended
on October 27 of the same year, against the said firm, wherein he alleged, among
other things, as a cause of action: That, on or about November 25, 1908, the plaintiff
delivered to the defendant 205 bundles or cases of general merchandise belonging to
him, which Inchausti & Co., upon receiving, bound themselves to deliver in the pueblo
of Catarman, Province of Samar, to the Chinaman, Ong Bieng Sip, and in
consideration of the obligations contracted by the defendant party, the plaintiff
obligated himself to pay to the latter the sum of P250 Philippine currency, which
payment should be made upon the delivery of the said merchandise in the said
pueblo Catarman; but that the defendant company neither carried nor delivered the
aforementioned merchandise to the said Ong Bieng Sip, in Catarman, but unjustly
and negligently failed to do so, with the result that the said merchandise was almost
totally lost; that, had the defendant party complied well and faithfully with its
obligation, according to the agreement made, the merchandise concerned would
have a value of P20,000 in the said pueblo of Catarman on the date when it should
have been delivered there, wherefore the defendant party owed the plaintiff the said
sum of P20,000, which it had not paid him, or any part thereof, notwithstanding the
many demands of the plaintiff; therefore the latter prayed for judgment against the
defendant for the said sum, together with legal interest thereon from November 25,
1908, and the costs of the suit.
Counsel for the defendant company, in his answer, set forth, that he admitted the
allegations of paragraphs 1 and 2 of the complaint, amended for the second time, and
denied those paragraphs 3, 4, 5, 6 and 7 of the same. As his first special defense, he
alleged that on or about November 28, 1908, his client, the said firm, received in
Manila from Ong Bieng Sip 205 bundles, bales, or cases of merchandise to be placed
on board the steamer Sorsogon, belonging to the defendant, for shipment to the port
of Gubat, Province of Sorsogon, to be in the said port transshipped into another of the
defendant's vessels for transportation to the port of Catarman, Samar, and delivered
to the aforesaid Chinaman, Ong Bieng Sip; that the defendant company, upon
receiving the said merchandise from the latter, Ong Bieng Sip, and on its entering into
a contract of maritime transportation with him did not know and was not notified that
the plaintiff, Tan Chiong Sian, had any interest whatever in the said merchandise and
had made with the plaintiff no contract relative to the transportation of such goods,
for, on receiving the latter from the said Ong Bieng Sip, for transportation, there were
made out and delivered to him three bills of lading, Nos. 38, 39 and 76, which
of the maritime transportation contract entered into by and between the plaintiff and
the defendant company, copies of which bills of lading and contract, marked as
Exhibits A, B, and C, are of record, attached to and made an integral part of the said
extended on the backs thereof; that the merchandise mentioned was put on board the
steamer Sorsogon and carried to the port of Gubat, Province of Sorsogon, where this
vessel arrived on November 28, 1908, on which date the lorcha Pilar, into which the
said merchandise was to be transshipped for carriage to Catarman, was not at Gubat,
and therefore the goods had to be unloaded and stored in the defendant company's
warehouses at Gubat; that, on the 4th of December of the same year, the lorcha
Pilar arrived at Gubat and, after the termination of certain necessary work, the goods
received from Chinaman, Ong Bieng Sip, were taken aboard the same, together with
other merchandise belonging to the defendant party, for the purpose of transportation
to the port of Catarman; that, before the said lorcha could leave for its destination, a
strong wind arose which in the course of the day increased in force until, early in the
morning of the following day, the lorcha was dragged and driven, by the force of the
storm, upon the shore, despite the means employed by the crew to avoid the
accident, and notwithstanding the five anchors that held the craft, which was thus
wrecked and completely destroyed and the merchandise with which it was laden,
including the 205 bundles or packages taken aboard for the said Chinaman, was
scattered on the shore; that, on the occasion, the lorcha Pilar was in good condition,
provided with all the proper and necessary equipment and accessories and carried a
crew of sufficient number in command of a skillful patron or master, wherefore the
wreck of the said craft was solely due to the irresistible force of the elements and of
the storm which drove it upon the shore; that the defendant company, with the
greatest possible diligence, gathered up the said shipwrecked goods that had been
shipped by the Chinaman, Ong Bieng Sip, but, owing to the damage they had
suffered, it was impossible to preserve them, so, after having offered to deliver them
to him, the defendant proceeded, in the presence of a notary, to sell them at public
auction and realized from the sale thereof P1,693.67, the reasonable value of the
same in the condition in which they were after they had been gathered up and salved
from the wreck of the lorcha Pilar; that the expenses occasioned by such salvage and
sale of the said goods amounted to P151.35, which were paid by the defendant party;
that the latter offered to the Chinese shipper, the plaintiff, the amount realized from
the sale of the said merchandise, less P151.35, the amount of the expenses, and the
sum of P250, the amount of the freight stipulated, and is still willing to pay such
products of the said sale to the aforementioned Ong Bieng Sip or to any other person
who should establish his subrogation to the rights of the Chinaman, Ong Bieng Sip,
with respect to the said amount; that, as his client's second special defense, the
defendant company alleged that one of the conditions of the shipping contract
executed between it and the Chinaman, Ong Bieng Sip, relative to the transportation
of the said merchandise, was that the said firm should not be held liable for more than
P25 for any bundle or package, unless the value of its contents should be stated in
the bill of lading, and that the shipper, Chinaman, Ong Bieng Sip, did not state in the
bill of lading the value of any of the bundles or packages in which the goods shipped
by him were packed. Counsel for the defendant company, therefore, prayed the court
to absolve his client from the complaint, with costs against the plaintiff.
After the hearing of the case and the introduction of testimony by the parties,
judgment was rendered, on March 18, 1910, in favor of the plaintiff, Tan Chiong Sian
or Tan Chinto, against the defendant Inchausti and Co., for the sum of P14,642.63,
with interest at the rate of 6 per cent per annum from January 11, 1909, and for the
costs of the trial. The defendant party appealed from this judgment.
This suit was brought for the purpose of collecting a certain sum which it is alleged
the defendant firm owes the plaintiff for losses and damages suffered by the latter as
a result of the former's noncompliance with the terms of an agreement or contract to
transport certain merchandise by sea from this city to the pueblo of Catarman, Island
of Samar, for the sum of P250.
The principal question to be determined is whether the defendant is liable for the loss
of the merchandise and for failure to deliver the same at the place of destination, or
whether he is relieved from responsibility on the ground of force majeure.
Article 1601 of the Civil Code prescribes:
Carriers of goods by land or by water shall be subject with regard to the
keeping and preservation of the things entrusted to them, to the same
obligations as determined for innkeepers by articles 1783 and 1784.
The provisions of this article shall be understood without prejudice to what is
prescribed by the Code of Commerce with regard to transportation by sea
and land.
Article 1602 reads:
Carriers are also liable for the loss of and damage to the things which they
receive, unless they prove that the loss or damage arose from a fortuitous
event or force majeure.
The articles aforecited are as follows:
ART. 1783. The depositum of goods made by travelers in inns or hostelries
shall also be considered a necessary one. The keepers of inns and
hostelries are liable for them as such bailees, provided that notice thereof
may have been given to them or to their employees, and that the travelers
on their part take the precautions which said innkeepers or their substitutes
may have advised them concerning the care and vigilance of said goods.
ART. 1784. The liability referred to in the preceding article shall include
damages to the goods of the travelers caused the servants or employees of
the keepers for inns or hostelries as well as by strangers, but not those
arising from robbery or which may be caused by any other case of force
majeure.
Article 361 of the Code of Commerce provides:
Merchandise shall be transported at the risk and venture of the shipper,
unless the contrary was expressly stipulated.
Therefore, all damages and impairment suffered by the goods in
transportation, by reason of accident, force majeure, or by virtue of the
nature or defect of the articles, shall be for the account and risk of the
shipper.
The proof of these accidents in incumbent on the carrier.
ART. 362. The carrier, however, shall be liable for the losses and damages
arising from the causes mentioned in the foregoing article if it is proved that
they occurred on account of his negligence or because he did not take the
precautions usually adopted by careful persons, unless the shipper
 committed fraud in the bill of lading, stating that the goods were of a class or
quality different from what they really were.
If, notwithstanding the precaution referred to in this article, the goods
transported run the risk of being lost on account of the nature or by reason of
an unavoidable accident, without there being time for the owners of the
same to dispose thereof, the carrier shall proceed to their sale, placing them
for this purpose at the disposal of the judicial authority or of the officials
determined by special provisions.
ART. 363. With the exception of the cases prescribed in the second
paragraph of article 361, the carrier shall be obliged to deliver the goods
transported in the same condition in which, according to the bill of lading,
they were at the time of their receipt, without any detriment or impairment,
and should he not do so, he shall be obliged to pay the value of the goods
not delivered at the point where they should have been and at the time the
delivery should have taken place.
If part of the goods transported should be delivered the consignee may
refuse to receive them, when he proves that he can not make use thereof
without the others.
On November 25, 1908, Inchausti & Co. received in Manila from the Chinaman, Ong
Bieng Sip, 205 bundles, bales or cases of goods to be conveyed by the
steamer Sorsogon to the port of Gubat, Province of Sorsogon, where they were to be
transshipped to another vessel belonging to the defendant company and by the latter
transported to the pueblo of Catarman, Island of Samar, there to be delivered to the
Chinese shipper with whom the defendant party made the shipping contract. To this
end three bills of lading were executed, Nos. 38, 39, and 76, copies of which, marked
as Exhibits A, B, and C, are found on pages 13, 14, and 15 of the record.
The steamer Sorsogon, which carried the goods, arrived at the port of Gubat on the
28th of that month and as the lorcha Pilar, to which the merchandise was to be
transshipped for its transportation to Catarman, was not yet there, the cargo was
unloaded and stored in the defendant company's warehouses at that port.
Several days later, the lorcha just mentioned arrived at Gubat and, after the cargo it
carried had been unloaded, the merchandise belonging to the Chinaman, Ong Bieng
Sip, together with other goods owned by the defendant Inchausti & Co., was taken
aboard to be transported to Catarman; but on December 5, 1908, before
the Pilar could leave for its destination, towed by the launch Texas, there arose and,
as a result of the strong wind and heavy sea, the lorcha was driven upon the shore
and wrecked, and its cargo, including the Chinese shipper's 205 packages of goods,
scattered on the beach. Laborers or workmen of the defendant company, by its order,
then proceeded to gather up the plaintiff's merchandise and, as it was impossible to
preserve it after it was salved from the wreck of the lorcha, it was sold at public
auction before a notary for the sum of P1,693.67.
The contract entered into between the Chinese shipper, Ong Bieng Sip, and the firm
of Inchausti & Co., provided that transportation should be furnished from Manila to
Catarman, although the merchandise taken aboard the steamer Sorsogon was to be
transshipped at Gubat to another vessel which was to convey it from that port to
Catarman; it was not stipulated in the said contract that the Sorsogon should convey
the goods to their final destination, nor that the vessel into which they were to be
transshipped, should be a steamer. The shipper, Ong Bieng Sip, therefore assented
to these arrangements and made no protest when his 205 packages of merchandise
were unloaded from the ship and, on account of the absence of the lorcha Pilar,
stored in the warehouses at Gubat nor did he offer any objection to the lading of his
merchandise on to this lorcha as soon as it arrived and was prepared to receive
cargo; moreover, he knew that to reach the port of Catarman with promptness and
dispatch, the lorcha had to be towed by some vessel like the launch Texas, which the
defendant company had been steadily using for similar operations in those waters.
Hence the shipper, Ong Bieng Sip, made no protest or objection to the methods
adopted by the agents of the defendant for the transportation of his gods to the port of
their destination, and the record does not show that in Gubat the defendant
possessed any other means for the conveyance and transportation of merchandise,
at least for Catarman, than the lorcha Pilar, towed by said launch and exposed during
its passage to all sorts of accidents and perils from the nature and seafaring qualities
of a lorcha, from the circumstances then present and the winds prevailing on the
Pacific Ocean during the months of November and December.
It is to be noted that a lorcha is not easily managed or steered when the traveling, for,
out at sea, it can only be moved by wind and sails; and along the coast near the
shore and in the estuaries where it customarily travels, it can only move by poling. For
this reason, in order to arrive at the pueblo of Catarman with promptness and
dispatch, the lorcha was usually towed by the launch Texas.
The record does not show that, from the afternoon of the 4th of December, 1908, until
the morning of the following day, the 5th, the  patron  or master of the lorcha which
was anchored in the cove of Gubat, received any notice from the captain of the
steamer Ton Yek, also anchored near by, of the near approach of a storm. The said
captain, Juan Domingo Alberdi, makes no reference in his sworn testimony of having
given any such notice to the  patron of the lorcha, nor did the latter, Mariano Gadvilao,
testify that he received such notice from the captain of the Ton Yek or from the person
in charge of the Government observatory. Gadvilao, the  patron, testified that only
between 10 and 11 o'clock of Saturday morning, the 5th of December, was he
informed by Inchausti & Co.'s agent in Gubat that a baguio was approaching; that
thereupon, on account of the condition of the sea, he dropped the four anchors that
the lorcha had on board and immediately went ashore to get another anchor and a
new cable in order more securely to hold the boat in view of the predicted storm. This
testimony was corroborated by the said representative, Melchor Muñoz. So
the lorcha, when the storm broke upon it, was held fast by five anchors and was, as
testified by the defendant without contradiction or evidence to the contrary, well found
and provided with all proper and necessary equipment and had a sufficient crew for
its management and preservation.
The  patron of the lorcha testified specifically that at Gubat or in its immediate vicinity
there is no port whatever adequate for the shelter and refuge of vessels in cases of
danger, and that, even though there were, on being advised between 10 and 11
o'clock of the morning of the 5th, of the approach of a storm from the eastern Pacific,
it would have been impossible to spread any sails or weigh anchor on
the lorcha without being dragged or driven against the reefs by the force of the wind.
As the craft was not provided with steam or other motive power, it would not have
been possible for it to change its anchorage, nor move from the place where it lay,
even several hours before the notice was received by its  patron. A lorcha can not be
compared with a steamer which does not need the help or assistance of any other
vessel in its movements.
Due importance must be given to the testimony of the weather observer, Antonio
Rocha, that the notice received from the Manila Observatory on the afternoon of
December 4, with regard to a storm travelling from the east of the Pelew Islands
toward the northwest, was not made known to the people of Gubat and that he merely
left a memorandum notice on the desk of the station, intending to give explanations
thereof to any person who should request them of him. So the notice of the storm
sent by the Manila Observatory was only known to the said observer, and he did not
apprise the public of the approach of the storm until he received another notice from
Manila at 20 minutes past 8 o'clock on Saturday morning, December 5. Then he
made a public announcement and advised the authorities of the storm that was
coming.
The  patron of the lorcha Pilar is charged with gross negligence for not having
endeavored to remove his craft to a safe place in the Sabang River, about half a mile
from where it was anchored.
In order to find out whether there was or was not such negligence on the part of
the patron, it becomes necessary to determine, first, whether the lorcha, on the
morning of December 5, could be moved by its own power and without being towed
by any steamboat, since it had no steam engine of its own; second, whether
the lorcha, on account of its draft and the shallowness of the mouth of the said river,
could have entered the latter before the storm broke.
The  patron, Mariano Gadvilao, stated under oath that the weather during the night of
December 4 was not threatening and he did not believe there would be a storm; that
he knew the Sabang River; and that the lorcha Pilar, when loaded, could not enter as
there was not sufficient water in its channel; that, according to an official chart of the
port of Gubat, the bar of the Sabang River was covered by only a foot and a half of
water at ordinary low tide and the lorcha Pilar, when loaded, drew 6 feet and a half;
that aside from the fact that the condition of the sea would not have permitted
the lorcha to take shelter in the said river, even could it have relied upon the
assistance of a towboat, at half past 8 o'clock in the morning the tide was still low;
there was but little water in the river and still less over the bar.
It was proven by the said official chart of the port of Gubat, that the depth of water
over the bar or entrance of the Sabang River is only one foot and a half at ordinary
low tide; that the rise and fall of the tide is about 4_«_ feet, the highest tide being at 2
o'clock in the afternoon of every day; and at that hour, on the 5th of December, the
hurricane had already made its appearance and the wind was blowing with all its fury
and raising great waves.
The lorcha Pilar, loaded as it had been from the afternoon of December 4, even
though it could have been moved by means of poles, without being towed, evidently
could not have entered the Sabang River on the morning of the 5th, when the wind
began to increase and the sea to become rough, on account of the low tide, the
shallowness of the channel, and the boat's draft.
The facts stated in the foregoing paragraph were proved by the said chart which was
exhibited in evidence and not rejected or assailed by the plaintiff. They were also
supported by the sworn testimony of the patron of the lorcha, unrebutted by any oral
evidence on the part of the plaintiff such as might disprove the certainty of the facts
related, and, according to section 275 of the Code of Civil Procedure, the natural
phenomenon of the tides, mentioned in the official hydrographic map, Exhibit 7, which
is  prima facie  evidence on the subject, of the hours of its occurrence and of the
conditions and circumstances of the port of Gubat, shall be judicially recognized
without the introduction of proof, unless the facts to the contrary be proven, which was
not done by the plaintiff, nor was it proven that between the hours of 10 and 11
o'clock of the morning of December 5, 1908, there did not prevail a state of low tide in
the port of Gubat.
The oral evidence adduced by the plaintiff with respect to the depth of the Sabang
River, was unable to overcome that introduced by the defendant, especially the said
chart. According to section 320 of the Code of Civil Procedure, such a chart is prima
facie  evidence of particulars of general notoriety and interest, such as the existence
of shoals of varying depths in the bar and mouth of the Sabang River and which
obstruct the entrance into the same; the distance, length, and number of the said
shoals, with other details apparently well known to the  patron of the lorcha Pilar, to
judge from his testimony.
Vessels of considerable draft, larger than the said lorcha, might have entered the
Sabang River some seven or nine years before, according to the testimony of the
Chinaman, Antonio B. Yap Cunco, though he did not state whether they did so at high
tide; but, since 1901, or previous years, until 1908, changes may have taken place in
the bed of the river, its mouth and its bar. More shoals may have formed or those in
existence may have increased in extent by the constant action of the sea. This is the
reason why the patron, Gadvilao, who was acquainted with the conditions of the port
and cove of Gubat, positively declared that the lorcha Pilar could not, on account of
her draft, enter the Sabang River, on account of low water.
The patron of the lorcha, after stating (p.58) that at Gubat or in its vicinity there is no
port that affords shelter, affirmed that it was impossible to hoist the sails or weigh the
anchors on the morning of the 5th of December, owing to the force of the wind and
because the boat would immediately have been dragged or driven upon the shoals;
that furthermore the lorcha was anchored in a channel some 300 brazas wide, but,
notwithstanding this width, the Pilar was, for want of motive power, unable to move
without being exposed to be dashed against the coast by the strong wind and the
heavy sea then prevailing. The testimony of this witness was neither impugned nor
offset by any evidence whatever; he was a patron of long years of service and of
much practice in seafaring, especially in the port of Gubat and its vicinity, who had
commanded or been intrusted with the command of other crafts similar to
the lorcha Pilar and his testimony was absolutely uncontradicted.
The patron Gadvilao, being cognizant of the duties imposed upon him by rules 14 and
15 of article 612, and others, of the Code of Commerce, remained with sailors, during
the time the hurricane was raging, on board the lorcha from the morning of December
5 until early the following morning, the 6th, without abandoning the boat,
notwithstanding the imminent peril to which he was exposed, and kept to his post until
after the wreck and the lorcha had been dashed against the rocks. Then he solicited
help from the captain of the steamer Ton Yek, and, thanks to the relief afforded by a
small boat sent by the latter officer, Gadvilao with his crew succeeded in reaching
land and immediately reported the occurrence to the representative of Inchausti & Co.
and to the public official from whom he obtained the document of protest, Exhibit 1.
By such procedure, he showed that, as a patron skilled in the exercise of his vocation,
he performed the duties imposed by law in cases of shipwreck brought about by force
majeure.
Treating of shipwrecks, article 840 of the Code of Commerce prescribes:
The losses and damages suffered by a vessel and her cargo by reason of
shipwreck or standing shall be individually for the account of the owners, the
part of the wreck which may be saved belonging to them in the same
proportion.
And Article 841 of the same code reads:
If the wreck or stranding should arise through the malice, negligence, or lack
of skill of the captain, or because the vessel put to sea insufficiently repaired
and supplied, the owner or the freighters may demand indemnity of the
captain for the damages caused to the vessel or cargo by the accident, in
accordance with the provisions contained in articles 610, 612, 614, and 621.
The general rule established in the first of the foregoing articles is that the loss of the
vessel and of its cargo, as the result of shipwreck, shall fall upon the respective
owners thereof, save for the exceptions specified in the second of the said articles.
These legal provisions are in harmony with those of articles 361 and 362 of the Code
of Commerce, and are applicable whenever it is proved that the loss of, or damage to,
the goods was the result of a fortuitous event or of force majeure; but the carrier shall
be liable for the loss or the damage arising from the causes aforementioned, if it shall
have been proven that they occurred through his own fault or negligence or by his
failure to take the same precautions usually adopted by diligent and careful persons.
In the contract made and entered into by and between the owner of the goods and
the defendant, no term was fixed within which the said merchandise should be
delivered to the former at Catarman, nor was it proved that there was any delay in
loading the goods and transporting them to their destination. From the 28th of
November, when the steamer Sorsogon arrived at Gubat and landed the said goods
belonging to Ong Bieng Sip to await the lorcha Pilarwhich was to convey them to
Catarman, as agreed upon, no vessel carrying merchandise made the voyage from
Gubat to the said pueblo of the Island of Samar, and with Ong Bieng Sip's
merchandise there were also to be shipped goods belonging to the defendant
company, which goods were actually taken on board the said lorcha and suffered the
same damage as those belonging to the Chinaman. So that there was no negligence,
abandonment, or delay in the shipment of Ong Bieng Sip's merchandise, and all that
was done by the carrier, Inchausti & Co., was what it regularly and usually did in the
transportation by sea from Manila to Catarman of all classes of merchandise. No
attempt has been made to prove that any course other than the foregoing was
pursued by that firm on this occasion; therefore the defendant party is not liable for
the damage occasioned as a result of the wreck or stranding of the lorcha Pilar
because of the hurricane that overtook this craft while it was anchored in the port of
Gubat, on December 5, 1908, ready to be conveyed to that of Catarman.
It is a fact not disputed, and admitted by the plaintiff, that the lorcha Pilar was
stranded and wrecked on the coast of Gubat during the night of the 5th or early in the
morning of the 6th of December, 1908, as a result of a violent storm that came from
the Pacific Ocean, and, consequently, it is a proven fact that the loss or damage of
the goods shipped on the said lorcha was due to the force majeure which caused the
wreck of the said craft.
According to the aforecited article 361 of the Code of Commerce, merchandise shall
be transported at the risk and venture of the shipper, unless the contrary be expressly
stipulated. No such stipulation appears of record, therefore, all damages and
impairment suffered by the goods in transportation, by reason of accident, force
majeure, or by virtue of the nature or defect of the articles, are for the account and
risk of the shipper.
A final clause of this same article adds that the burden of proof of these accidents is
upon the carrier; the trial record fully discloses that the loss and damage of the goods
shipped by the Chinaman, Ong Bieng Sip, was due to the stranding and wreck of
the lorcha Pilar in the heavy storm or hurricane aforementioned; this the plaintiff did
not deny, and admitted that it took place between the afternoon of the 5th and early in
the morning of the 6th of December, 1908, so it is evident that the defendant is
exempt from the obligation imposed by the law to prove the occurrence of the said
storm, hurricane, or cyclone in the port of Gubat, and, therefore, if said goods were
lost or damaged and could not be delivered in Catarman, it was due to a fortuitous
event and a superior, irresistible natural force, or force majeure, which completely
disabled the lorcha intended for their transportation to the said port of the Island of
Samar.
The record bears no proof that the said loss or damage caused by the stranding or
wreck of the lorcha Pilar as a result of the storm mentioned, occurred through
carelessness or negligence on the part of the defendant company, its agents or
the patron of the said lorcha, or because they did not take the precautions usually
adopted by careful and diligent persons, as required by article 362 of the Code of
Commerce; the defendant company, as well as its agents and the patron of
the lorcha, had a natural interest in preserving the craft and its own goods laden
therein — an interest equal to that of the Chinese shipper in preserving his own which
were on board the ship lorcha — and, in fact, the defendant, his agents and
the patron did take the measures which they deemed necessary and proper in order
to save the lorcha and its cargo from the impending danger; accordingly, the patron,
as soon as he was informed that a storm was approaching, proceeded to clear the
boat of all gear which might offer resistance to the wind, dropped the four anchors he
had, and even procured an extra anchor from the land, together with a new cable,
and cast it into the water, thereby adding, in so far as possible, to the stability and
security of the craft, in anticipation of what might occur, as presaged by the violence
of the wind and the heavy sea; and Inchausti & Company's agent furnished the
articles requested by the patron of the lorcha for the purpose of preventing the loss of
the boat; thus did they all display all the diligence and care such as might have been
employed by anyone in similar circumstances, especially the patron who was
responsible for the lorcha under his charge; nor is it possible to believe that the latter
failed to adopt all the measures that were necessary to save his own life and those of
the crew and to free himself from the imminent peril of shipwreck.
In view of the fact that the lorcha Pilar had no means of changing its anchorage, even
supposing that there was a better one, and was unable to accept help from any
steamer that might have towed it to another point, as wherever it might have
anchored, it would continually have been exposed to the lashing of the waves and to
the fury of the hurricane, for the port of Gubat is a cove or open roadstead with no
shelter whatever from the winds that sweep over it from the Pacific Ocean, and in
view of the circumstances that it was impossible for the said lorcha, loaded as it then
was, to have entered the Sabang River, even though there had been a steamer to
tow it, not only because of an insufficient depth of water in its channel, but also on
account of the very high bar at the entrance of the said river, it is incontrovertible that
the stranding and wreck of the lorcha Pilar was due to a fortuitous event or to force
majeureand not to the fault and negligence of the defendant company and its agents
or of the patron, Mariano Gadvilao, inasmuch as the record discloses it to have been
duly proved that the latter, in difficult situation in which unfortunately the boat under
his charge was placed, took all the precautions that any diligent man should have
taken whose duty it was to save the boat and its cargo, and, by the instinct of self-
preservation, his own life and those of the crew of the lorcha; therefore, considering
the conduct of the patron of the lorcha and that of the defendant's agent in Gubat,
during the time of the occurrence of the disaster, the defendant company has not
incurred any liability whatever for the loss of the goods, the value of which is
demanded by the plaintiff; it must, besides, be taken into account that the defendant
itself also lost goods of its own and the lorcha too.
From the moment that it is held that the loss of the said lorcha was due to force
majeure, a fortuitous event, with no conclusive proof or negligence or of the failure to
take the precautions such as diligent and careful persons usually adopt to avoid the
loss of the boat and its cargo, it is neither just nor proper to attribute the loss or
damage of the goods in question to any fault, carelessness, or negligence on the part
of the defendant company and its agents and, especially, the patron of
the lorcha Pilar.
Moreover, it is to be noted that, subsequent to the wreck, the defendant company's
agent took all the requisite measures for the salvage of such of the goods as could be
recovered after the accident, which he did with the knowledge of the shipper, Ong
Bieng Sip, and, in effecting their sale, he endeavored to secure all possible
advantage to the Chinese shipper; in all these proceedings, as shown by the record,
he acted in obedience to the law.
From all the foregoing it is concluded that the defendant is not liable for the loss and
damage of the goods shipped on the lorcha Pilar by the Chinaman, Ong Bieng Sip,
inasmuch as such loss and damage were the result of a fortuitous event or force
majeure, and there was no negligence or lack of care and diligence on the part of the
defendant company or its agents.
Therefore, we hold it proper to reverse the judgment appealed from, and to absolve,
as we hereby do, the defendant, Inchausti & Co., without special findings as to costs.
Arellano, C.J., Mapa and Johnson, JJ., concur. 
Carson and Trent, JJ., dissent.
Separate Opinions
MORELAND, J.,  dissenting:
In my opinion the decision of the court below, which this court reverses, is clearly in
accordance with law and in strict conformity with equity and justice. The defendant, a
shipowner, agreed with the plaintiff to transport P14,000 worth of property from
Manila to Catarman, Province of Samar. The defendant never fulfilled its contract.
Instead of delivering the property at Catarman, Province of Samar, it left it on board of
a lorcha in the waters of Gubat, a port in the southern part of the Island of Luzon,
where, during a storm, the lorcha foundered and the property was lost.
This court holds that the Chinaman must lose his property. This is the manner in
which the defendant lost the goods of the plaintiff:
The Sorsogon, on which the goods were loaded at Manila, arrived at Gubat about the
28th of November, 1908. A few days later the lorcha Pilar arrived at Gubat, towed by
the tug Texas. The lorcha was without means of locomotion of its own, except its
sails, which, from the record, appear never to have been used and were substantially
useless, and could move about and protect itself from the weather only by being
towed or "poled." The only boat on the coast owned by the defendant which could tow
the lorcha was the tug Texas. Sometime before the 5th of December, at least one day
before the storm broke, the goods belonging to the plaintiff were loaded on
this lorcha. The tug Texas, under the orders of the defendant, left the locality where
the lorcha was loaded and did not return until after it was wrecked.
Let us see what were the conditions at the time the defendant voluntarily and
unnecessarily placed the property of the plaintiff on the lorcha Pilar:
(1) It must be remembered that Gubat is located on the Pacific coast. The waters of
Gubat are not protected waters; they are not inclosed; they are in the form of a bay;
they are directly open to the winds from the Pacific Ocean, without protection or
shelter of any kind, except possibly the mouth of the river, a matter here in dispute
and which will be referred to later. They are likewise open to the full sweep of the
waves of the Pacific coming from its widest reaches.
(2) At the time the plaintiff's goods were loaded upon the lorcha Pilar it was the height
of the typhoon season in that locality. The prevailing winds were from the Pacific.
Destructive baguios might reasonably be expected at any time. It was only with the
exercise of diligence and prudence that shipping could be protected therefrom.
(3) As I have before indicated, the lorcha Pilar had substantially no means of
locomotion of its own and depended for its protection in stormy weather entirely upon
the steam tug Texas or being "poled" into the mouth of the river by its crew. At the
time of the storm which destroyed the lorcha, and for some time prior thereto and for
some days thereafter, the Texas was at the port of Barcelona, on the coast several
miles south of Gubat, having been sent by order of the defendant, its owner.
Summarizing, then, we have the defendant voluntarily placing the property of the
plaintiff upon the kind of craft above described, dispatching to a distant port
substantially the only means of locomotion and protection which that craft had,
except, as we have said, by being poled, placing that lorcha in waters directly
exposed to the winds and waves of the Pacific and at the mercy of every baguio that
blew; and this during a season of the year when winds were generally high and
destructive baguios might be expected at any time, and with full knowledge that if a
typhoon came while the agents of the defendant were unprepared the property of the
plaintiff would in all probability be lost.
Having these facts in mind, let us see what the agents of the defendant did to protect
the property of the plaintiff which they had voluntarily placed in a situation of such
peril.
(4) At the time of the destruction of the lorcha there was a Government weather
observatory at Gubat which received advices many hours in advance of the approach
of a typhoon toward the locality. It had been there for some years. The purpose of
that observatory was to furnish information to the public concerning the formation and
approach of typhoons from the Pacific and of warning the people with exposed
shipping to take such precautions as were necessary for its protection. This was
known to the defendant's agents at Gubat. They knew that the observatory had a
public office, open to anybody who cared to visit it, in which would be found all of the
latest information relating to storms and baguios coming from the Pacific Ocean. They
knew that the officials of said observatory were there for the express purpose of
giving such information. The defendant's agents had at Gubat a barometer and all the
other instruments usually kept by seamen and navigators for forecasting the weather.
(5) As we have said, the storm occurred on the 5th of December. It wrought its
greatest havoc late in the afternoon and the early part of the night. At about 2 o'clock
on the day before the storm, that is, on the 4th of December, the observatory at
Gubat received notice from the Manila observatory that a baguio was forming in the
Pacific Ocean. At about the same time at Barcelona, only 10 miles south of Gubat,
the barometer on board the Texas dropped so rapidly as to indicate such dangerous
weather probabilities that the captain of the Texas deemed it unsafe to venture out of
the harbor. On the same afternoon the barometer on board the only steam vessel
near Gubat, the Ton Yek, also went down. Although it does not expressly appear in
the evidence, yet it is an inference entirely fair from the record, and against which
nothing whatever can be urged, that the barometer in the possession of agents of the
defendant also dropped with the same rapidity. In all human probability this could not
be otherwise in view of the rapid and decisive fall of the barometer on board
the Texas, only 10 miles away, and the fact that the typhoon broke over both places
equally. At the same time, and more pronounced a little later, every symptom which
men who have to deal with the sea could and would readily observe, and which the
captain of the Ton Yek did observe as a matter of fact, indicated the approach of a
heavy storm. These evidences were heeded by the captain of the Ton Yek, who,
early on the morning of the 5th, without waiting for the appearance of a storm signal
at the observatory, sent a messenger to the observatory for the purpose of
ascertaining with more accuracy what was going to happen. In spite of all these
things, most of which occurred on the afternoon or evening of the day preceding the
storm, the agents of the defendant did absolutely nothing to inform themselves as to
the prospective whether conditions or as to whether or not a baguio was approaching,
and did absolutely nothing to preserve or protect the property which they had placed
in so exposed and dangerous a place.
(6) The morning of the 5th arrived. As we have already stated, all of the signs which
men who have to do with the sea so readily read indicated unquestionably and
decisively the approach of the storm which the advices received by the observatory at
2 o'clock on the afternoon before told the inhabitants of that locality was probably
coming. Still the agents of the defendant did nothing. The captain of the Ton Yek,
although his vessel was a steam vessel and was able to take care of itself by reason
of its machinery, judging these signs and portents, found it advisable to consult with
the observatory early on the morning of the 5th. The approach of a storm was
apparent to him and he took precautions accordingly. Yet the agents of the defendant
did nothing. Although the lorcha on which they had put the property of the plaintiff
was, according to their own admissions, utterly unprotected, and although P14,000
worth of goods intrusted to their care was in great danger of being lost, still they did
absolutely nothing, either by anticipation or otherwise, to protect that property
therefrom.
(7) On the morning of the 5th at about 8.20 or 8.30 o'clock the observatory run up the
first danger signal. Still the agents of the defendant noted nothing, did nothing. They
paid absolutely no attention to it, as they had paid no attention whatever to the other
indications. They left the lorcha to its fate without lifting a finger to save it. At 9 o'clock
the wind had risen and the waves had commenced to roll. Still nothing was done. At
9.30 the winds were still stronger and the waves higher. Still nothing was done. At
10.30 the increase in the strength of the wind and of the height of the waves
continued. And yet the agents of the defendant did nothing. It was well toward 11
o'clock before they began to move. And that time it was too late. The wind and waves
were so high that, with the means at hand, the lorcha could not be moved from the
exposed position in which it was, even if it be conceded that there was any safer
place within those waters. The lorcha was prevented from dashing itself immediately
upon the rocks only by virtue of its anchor. At between 10.30 and 11 o'clock the
captain of the lorcha came to ashore to secure additional anchors. And that time,
however, as we have observed, it was too late to unload the goods and too late to
remove the lorcha to a safe place within the mouth of the river, even if that were
possible. The agents of the defendant, having done absolutely nothing up to this time,
now found, after they had awakened from their lethargy, that it was too late to do
more than stand by and see the property, which had been intrusted to their care and
for carrying of which they had been paid, dashed to pieces on the rock and swallowed
up by the sea.
(8) For nearly eighteen hours prior to the disaster the information that the disaster
was coming lay under the very noses of the agents of the defendant. For nearly
eighteen hours the barometer had been dropping steadily, so much so that their own
vessel dared not leave a port only 10 miles distant on the afternoon before. For
eighteen hours every warning which nature could give, indicating the disaster which
subsequently came, had been repeatedly thrust upon them. Yet they did nothing.
Having placed the goods of the plaintiff in an exposed and dangerous position, in
waters open to the winds and waves of the Pacific Ocean, at the height of the
typhoon season, in a vessel which had no motive power of its own, and having sent
away that which they themselves substantially admit was its only protection, the
agents of the defendant exercised no care or precaution whatever to the end that they
might protect the goods which they themselves had so recklessly exposed.
Yet this court, under such circumstances, holds that the defendant may go in peace
and that the plaintiff is the one who must bear the burden of such negligence.
With that decision I can not agree.
An act of God can not be urged for the protection of a person who has been guilty of
gross negligence in not trying to avert its results. One who has accepted responsibility
for pay can not weakly fold his hands and say that he was prevented from meeting
that responsibility by an act of God, when the exercise of the ordinary care and
prudence would have averted the results flowing from that act. One who has placed
the property of another, intrusted to his care, in an unseaworthy craft, upon
dangerous waters, cannot absolve himself by crying, "an act of God," when every
effect which a typhoon produced upon that property could have been avoided by the
exercise of common care and prudence. When the negligence of the carrier concurs
with an act of God producing a loss, the carrier is not exempted from liability by
showing that the immediate cause of the damage was the act of God; or, as it has
been expressed, "when the loss is caused by the act of God, if the negligence of the
carrier mingles with it as an active and cooperative cause, he is still liable." The loss
and damage to perishable articles in consequence of the weather will not excuse the
carrier if it could have been prevented by due care and diligence. The carrier must not
only show that it did all that was usual, but all that was necessary to be done under
the circumstances. (Wing vs. New York, etc., Ry. Co., 1 Hilt. (N.Y.), 235; Philleo vs.
Sanford, 17 Tex., 228.) To be exempt from liability for loss because of an act of God,
the common carrier must be free from any previous negligence or misconduct by
which that loss or damage may have been occasioned. For, although the immediate
or proximate cause of a loss in any given instance may have been what is termed an
act of God, yet if the carrier unnecessarily exposed the property to such accident by
any culpable act or omission of his own, he is not excused. (Mc-Graw vs. Baltimore
and Ohio Ry. Co., 41 Am. Rep., 696.) In the case of Wolf vs. American Express Co,.,
43 Mo., 421, Wagner, J., said:
The act of God which excuses the carrier must not only be the proximate
cause of the loss, but the better opinion is that it must be the sole cause.
And where the loss is caused by the "act of God," if the negligence of the
carrier mingles with it as an active and cooperative cause, he is still
responsible. (Amies vs. Stevens, 1 Stra., 128.)
Where perishable property, such as potatoes, is received by a common carrier at a
season when a very low temperature may reasonably apprehended, great diligence
should be used in forwarding such property with dispatch and haste; and where, by a
delay of two or three days, the property is damaged by freezing, the carrier may be
held liable for the damage. (Hewett vs. The Chicago, B & Q. Ry. Co., 63 Ia., 611.) A
carrier is bound to provide a vessel in all respects adequate to the purpose, with a
captain and crew of requisite skill or ability; and, failing in these particulars, though
the loss be occasioned by an act of God, the carrier may not set up a providential
calamity to protect himself against what may have arisen from his own folly. (Hart vs.
Allen and Grant, 2 Watts (Pa.), 114.)
This doctrine is fully supported by the Spanish authorities on the subject.
Manresa in his commentaries to section 1105 of the Civil Code of Spain, volume 8,
page 91, says:
Elucidation of article 1105 and the idea of the accident is interesting under
the following aspects; Relation between it and the blame; enumeration of the
requisites that must be present; proof of the event and characterization
thereof; and the consequence it produces. Let us examine them.
Even when the distinction is simple and reasonable between blame for some
exempting circumstance (because it may not be serious enough to involve
such blame, under the law or the obligation) and accident, since the former
admits an imputation which the latter excludes, even when the former may
not be the basis for legal responsibility, and therefore it can not be said that
where no responsible blame exists there the accident commences, yet the
latter is undeniably characterized by unexpectedness and inevitability,
circumstances susceptible of relative interpretation, and so whatever relates
to the blame must be taken into account, because, as we shall see, it is in
certain sense, especially in practical application, connected with the matter
under consideration.
Aside from this statement of ideas, there may be another of consequences,
for in the complexity of facts, in the same obligation, there may be present
blame enough to involve such and also accident. When both causes are
present, with separation of time and affects, for partial breach due to one of
them may be possible and then the other may operate to aggravate or
complete these consequences, the distinction is easy and to each cause
may be assigned its own effect for the corresponding result, as neither
exemption, on account of accident, can be extended to what may be imputed
nor to what in any way depends upon it by basing responsibility arising from
blame on the fact that the damage is the result thereof.
The problem becomes more difficult when both causes concur to produce
the same effect or when, even though the effect may be due to accident, the
obligor has not exercised necessary diligence, however, blameless he was
for the results arising from the breach. In the first of the last two
suppositions, the solution is plain, because when the obligor incurs the
blame of actually producing the result, or even when it is not the only cause,
or even the principal one, there is still sufficient connection between it and
the consequences to cause them to be imputed to him and, as a voluntary
elements exists in the causes, there is lacking the circumstance
indispensable to exemption on account of accident. The second supposition
presents a very difficult problem of proof, which rests upon the obligor, and
calls for a careful analysis of the origin of the breach. The difficulty in this
case consists in that the blame, in addition to its subjective aspect for
imputing the consequences to the obligor, has an objective aspect, to wit,
that these consequences may rise, that the damage which must be repaired
is caused, in such manner that due diligence may be lacking and yet not
extend to the point of involving responsibility, because it produces no results.
Now then, if an accident occurs under these conditions, absolutely
independent of the negligence that may have existed, it may have occurred
with or without negligence and therefore any derivation of consequences
was lacking, then it can not be said that responsibility arises therefrom; but
to reach this conclusion there first rests with the obligor proof so difficult that,
in addition to overcoming the presumption of existence of blame, it involves
the very fine distinction of the origin of the breach and perfectly reveals the
occurrence of the accident, joined by their coexistence, and demonstrating
absolute lack of consequences and influence of blame.
In connection with this question, a judgment of November 22, 1904, declares
that there are some events which, independent of the will of the obligor,
hinder the fulfillment of the obligation, and yet do not constitute cases
of force majeure for the purposes of such fulfillment, because the possibility
that they would occur could have been foreseen, articles 1101 and 1104
being applicable and not article 1105, since negligence or blame is also
present from not informing the obligee, either at first or later on, of the state
of affairs and the situation, so as to avoid the consequent damage. This was
the case of a bull fight that could not be held because the ring was not
completed in time for reasons beyond the control of the contractor, but the
fact that the contract did not state that the ring was unconstructed and the
possibility that it would not be at the time specified, reveals, in the opinion of
the court, the lack of foresight or the negligence which makes article 1105
inapplicable.
In an essentially analogous way, judgments were pronounced on June 12,
1899 (Tribunal contencioso administrativo), and on October 27, 1905 (Sala
tercera), against the company leasing the tobacco monopoly, for losses
caused by theft and fire. It was further decided in these cases that the
company and not the State must bear the losses, for while accidental fire in
a tobacco factory and theft of stamped goods stored in a branch house may
constitute accidents, yet they do not deserve this characterization when they
occur through omission, neglect or lack of care which imply breach of the
contract.
According to the text of article 1105, which agrees with the rational idea of
accident, it is sufficient for the event to constitute such that it have any of the
two characteristics enumerated; if it is foreseen, it is of little import that it be
unavoidable; and if it is unavoidable it does not matter that it may have been
foreseen. The first supposition requires some explanation: an event may be
wholly unforeseen, but, after it has occurred, be very slow in producing
effects, and in such case, although it could not have been foreseen, as there
is time before it produces its effects, the latter must be considered.
Besides this special supposition, in which, if carefully considered, the two
characteristics do not concur, since the idea of unexpectedness, as is seen,
is relative, it will be sufficient that one or the other be present. The possibility
of foresight must be weighed rationally with consideration of all the
circumstances, but this general rule has, strictly speaking, an exception
when the event, although in a general way very difficult, almost impossible to
be foreseen, should for some reason be known to the obligor in due time.
The condition of inevitability can not be understood in so absolute a sense
that it should take away the character of accident from many that are strictly
such, because they are undoubtedly causes, however powerful they may be,
whose injurious effects may have been avoided by exercising a number of
precautions, so exaggerated and so out of proportion to the importance of
the trouble anticipated, that they would be unreasonable and not required in
law. In such cases, if the means which can and must rationally be employed
are not effective, it will be held to have been unavoidable. So we see
demonstrated how the idea of diligence is related, somewhat in the nature of
limitation, to the accident.
Such was the doctrine established in our ancient law regarding the obligor;
the reasons whereof are theoretically set forth further on; and as a written
provision, law 20, title 13, partida 5, which expressly laid down this principle
in connection with pawn-broking contracts, and which was, by analogy,
made the basis for extending a similar provision to the remaining cases.
That the Civil Code is inspired by the same idea is clearly expressed in
article 1183 thereof, the commentary on which should be consulted. Still
such solution depends upon the nature of proof and of the accident, since its
existence as an abnormal event hindering the fulfillment of the obligation
must be proved and not presumed, and the burden of this proof rests upon
the obligor, and not upon the obligee, whose proof would have to be
negative. Moreover since an accident is the basis for exemption from
responsibility, it must be proved by him who will benefit thereby and who
objects to the requirement that he fulfill his obligations. To these reasons are
joined those above set forth in connection with the proof of contractual
blame, since they are, according to the same article, 1183, above cited,
 closely related questions, so much so that they become two phases of one
question — presumption against the existence of accident of what tends to
establish presumption of blame, in the absence of proof to overcome it.
Proof of accident must include these points; the occurrence of the event, the
bearing it has upon breach of the obligation, and the concurrence of
unexpectedness and inevitably. In connection with the first two points, the
proof resting upon the obligor must be specific and exact; but as for the last,
although it may be admitted as a general proposition that, in addition to
proving the event, he must also demonstrate that it involves the condition
required to make it an accident, there are some of such magnitude and, by
their nature, of almost impossible prevision, that proof of their occurrence
demonstrates their condition. Undoubtedly, and differently from proof of the
accident, the exceptional circumstance that the event (which should as a
general proposition be regarded as unforeseen) was known to the obligor for
some special reason, must be of proven by the obligee who asserts it, since
the obligation of proof resting upon the former is fulfilled in this regard by
demonstrating that the event ought rationally to be held to have been
unforeseen.
Since proof of the accident is related to proof of the blame, it is evident that
the obligor must also prove, so far as he is concerned, that he is not to
blame for breach of the obligation.
Exemption from responsibility in accidents established by article 1105 has,
according to its text, two exceptions, whereby an event may be plainly
proven, and be unforeseen and unavoidable and still not produce such
exemption, viz, when the execution is either stipulated in the obligation or is
expressly mentioned by the law. The basis for these exceptions rests,
according to this cases, either upon the freedom of contracts, which is
opposed to prohibition of a compact, wherein, without immorality, there is
merely an emphasized stipulation, which is meant to guarantee in every
case an interest and indirectly to secure careful and special diligence in the
fulfillment of the obligation; or upon the nature of the obligations when risk is
an essential element therein; or finally upon cases whose circumstances, as
happens with that provided for by the last paragraph of article 1096, justify
the special strictness of the law.
In conclusion, we shall point out that in order to relieve the obligor from his
obligation, it must be remembered that the occurrence of the event does not
suffice, but that the impossibility of fulfilling the obligation must be the direct
consequences of the accident, so that when it can be fulfilled it will subsists,
even if only in part, and therefore, in order to see whether or not the accident
produces this result the nature of the obligation must be considered, and
according to whether it be specific or general, etc., it will or will not be
extinguished.
To hold the carrier responsible in the case at bar, it is not necessary to go so far as
the authorities just cited. The negligence is so clear that it is not necessary to strain
doctrines or even press them to their limits.
I do not agree here argue the assertion of the plaintiff denied by the defendant, that,
at any time before nine o'clock of the day of the destruction of the lorcha, the
defendant's agents could have placed the lorcha in the mouth of the river out of
harm's way. I believe that a fair preponderance of the evidence shows that this could
have been done. The defendant denies this, asserting that the water was too shallow.
Nevertheless, fourteen days after the storm, the foundered lorcha, water-logged and
undoubtedly containing water, was " poled" by its crew from the place where it went
on the rocks to a place of safety inside the mouth of the river. It is more than probable
that this could have been done at any time before the storm became too high. At last
common prudence would have required the unloading of the lorcha, which could
easily have been accomplished before the storm if the agents of the defendant had
awakened themselves to their duty.
[G.R. No. 13972.  July 28, 1919.]
G. MARTINI, LTD., Plaintiff-Appellee, vs. MACONDRAY & CO. (INC.), Defendant-
Appellant.
 
DECISION
STREET, J.:
In September of the year 1916, the Plaintiff G. Martini, Ltd., arranged with
the Defendantcompany, as agents of the Eastern and Australian Steamship
Company, for the shipment of two hundred and nineteen cases or packages of
chemical products from Manila, Philippine Islands, to Kobe, Japan. The goods were
embarked at Manila on the steamship Eastern, and were carried to Kobe on the deck
of that ship. Upon arrival at the port of destination it was found that the chemicals
comprised in the shipment had suffered damage from the effects of both fresh and
salt water; and the present action was instituted by the Plaintiff to recover the amount
of the damage thereby occasioned. In the Court of First Instance judgment was
rendered in favor of the Plaintiffsfor the sum of P34,997.56, with interest from March
24, 1917, and costs of the proceeding. From this judgment the Defendant appealed.
That the damage was caused by water, either falling in the form of rain or splashing
aboard by the action of wind and waves, is unquestionable; and the contention of
the Plaintiff is that it was the duty of the ship’s company to stow this cargo in the hold
and not to place it in an exposed position on the open deck. The defense is that by
the contract of affreightment the cargo in question was to be carried on deck at the
shipper’s risk; and attention is directed to the fact that on the face of each bill of lading
is clearly stamped with a rubber stencil in conspicuous letters the words “on deck at
shipper’s risk.” In this connection the Defendant relies upon paragraph 19 of the
several bills of lading issued for transportation of this cargo, which reads as follows:
“19.        Goods signed for on this bill of lading as carried on deck are entirely at
shipper’s risk, whether carried on deck or under hatches, and the steamer is not liable
for any loss or damage from any cause whatever. “
The Plaintiff insists that the agreement was that the cargo in question should be
carried in the ordinary manner, that is, in the ship’s hold, and that the Plaintiff never
gave its consent for the goods to be carried on deck. The material facts bearing on
this controverted point appear to be these: On September 15, 1916,
the Plaintiff applied to the Defendant for necessary space on the steamship Eastern,
and received a shipping order, which constituted authority for the ship’s officers to
receive the cargo aboard. One part of this document contained a form which, when
signed by the mate, would constitute the “mate’s receipt,” showing that the cargo had
been taken on.
Ordinarily the shipper is supposed to produce the mate’s receipt to the agents of the
ship’s company, who thereupon issue the bill of lading to the shipper. When,
however, the shipper, as not infrequently happens, desires to procure the bill of lading
before he obtains the mate’s receipt, it is customary for him to enter into a written
obligation, binding himself, among other things, to abide by the terms of the mate’s
receipt. In the present instance the mate’s receipt did not come to the Plaintiff’s hand
until Monday night, but as the Plaintiff was desirous of obtaining the bills of lading on
the Saturday morning preceding in order that he might negotiate them at the bank, a
request was made for the delivery of the bills of lading on that day To effectuate this,
the Plaintiff was required to enter into the written obligation, calling itself a “letter of
guarantee,” which was introduced in evidence as Exhibit D-C. This document is of the
date of September 16, 1916, and of the following tenor:
“In consideration of your signing us clean B/L for the undermentioned cargo per
above steamer to be shipped on or under deck at ship’s option, for Kobe without
production of the mate’s receipt, we hereby guarantee to hold you free from any
responsibility by your doing so, and for any expense should the whole or part of the
cargo be shut out, or otherwise, and to hand you said mate’s receipt as soon as it
reaches us and to abide by all clauses and notations on the same.”
In conformity with the purpose of this document the bills of lading were issued, and
the negotiable copies were, upon the same day, negotiated at the bank by
the Plaintiff for 90 per cent of the invoice value of the goods. As already stated these
bills of lading contained on their face, conspicuously stenciled, the words “on deck at
shipper’s risks.” The mate’s receipt, received by the Plaintiff two days later also bore
the notation “on deck at shipper’s risk,” written with pencil, and evidently by the officer
who took the cargo on board and signed the receipt.
The Plaintiff insists that it had at no time agreed for the cargo to be carried on deck;
and G. Martini, manager of Martini & Company, says that the first intimation he had of
this was when, at about 4 p.m. on that Saturday afternoon, he examined the
nonnegotiable copies of the bills of lading, which had been retained by the house, and
discovered the words “on deck at shipper’s risk” stamped thereon. Martini says that
upon seeing this, he at once called the attention of S. Codina thereto, the latter being
an employee of the house whose duty it was to attend to all shipments of
merchandise and who in fact had entire control of all matters relating to the shipping
of this cargo. Codina pretends that up to the time when Martini directed his attention
to the fact, he himself was unaware that the cargo was being stowed on deck; and
upon the discovery of this fact the two gentlemen mentioned expressed mutual
surprise and dissatisfaction. Martini says that he told Codina to protest at once to
Macondray & Company over the telephone, while Martini himself proceeded to endite
a letter, which appears in evidence as Exhibit D-T of the Defendantand is in its
material part as follows:
“MANILA, September 16, 1916.
“MESSRS. MACONDRAY & Co.,
                “Manila,
“DEAR SIRS: In re our shipment per steamship Eastern, we are very much surprised
to see that the remark ‘on deck at shipper’s risk’ has been stamped on the bills of
lading Nos. 8 to 23. . . . and although not believing that the same have actually been
shipped on deck we must hold you responsible for any consequence, loss, or damage
deriving from your action should they have been shipped as stated.
“Yours faithfully,
“G. MARTINI, LTD.
“By S. CODINA.”
This letter was followed by another of the same date and of substantially the same
tenor but containing the following additional statement:
“It is the prevailing practice that, whenever a cargo is being carried on deck,
shipowners or agents give advice of it to shippers previous to shipment taking place,
and obtain their consent to it. If we had been advised of it, shipment would not have
been effected by us. We regret very much this occurrence, but you will understand
that in view of your having acted in this case on your own responsibility, we shall have
to hold you amenable for any consequences that may be caused from your action.”
The first of these letters was forthwith dispatched by messenger, and upon receiving
it, Macondray & Company called Codina by telephone at about 4.30 p.m. and,
referring to the communication just received, told him that Macondray & Company
could not accept the cargo for transportation otherwise than on deck and that if
Martini & Company were dissatisfied, the cargo could be discharged from the ship.
There is substantial conformity in the testimony of the two parties with respect to the
time of the conversation by telephone and the nature of the message which
Macondray & Company intended to convey, though the witnesses differ as to some
details and in respect to what occurred immediately thereafter. Basa, who was in
charge of the shipping department of Macondray & Company and who conducted the
conversation on the part of the latter, says that he told Codina that if Martini &
Company was unwilling for the cargo to be carried on deck that they could discharge
it and further advised him that Macondray & Company’s empty boats were still at the
ship’s side ready to receive the cargo. In reply Codina stated that Martini, the
manager, was then out and that he would answer in a few minutes, after
communication with Martini. Within the course of half an hour Codina called Basa up
and said that as the cargo was already stowed on deck, Martini & Company were
willing for it to be carried in this way, and that their protest was a mere formality.
Codina admits that he was informed by Basa that the cargo could not be carried
under the hatches, and that if Martini & Company were dissatisfied to have it carried
on deck, they could discharge it. He denies being told that it could be taken off in
Macondray & Company’s boats. Codina further states that when the conversation was
broken off for the purpose of enabling him to communicate with Martini, he consulted
with the latter, and was directed to say that Martini & Company did not consent for the
cargo to be carried on deck and that it must be discharged. Upon returning to the
telephone, he found that the connection had been broken, and he says that he was
thereafter unable to get Macondray & Company by telephone during that afternoon,
although he attempted to do so more than once.
In the light of all the evidence the conclusion seems clear enough that, although
Martini & Company would have greatly preferred for the cargo to be carried under the
hatches, they nevertheless consented for it to go on deck. Codina, if attentive to the
interests of his house, must have known from the tenor of the guaranty to which his
signature is affixed that the Defendanthad reserved the right to carry it on deck, and
when the bills of lading were delivered to the Plaintiff they plainly showed that the
cargo would be so carried.
It must therefore be considered that the Plaintiff was duly affected with notice as to
the manner in which the cargo was shipped. No complaint, however, was made until
after the bills of lading had been negotiated at the bank. When the manager of Martini
& Company first had his attention drawn to the fact that the cargo was being carried
on deck, he called Codina to account, and the latter found it to his interest to feign
surprise and pretend that he had been deceived by Macondray & Company. Even
then there was time to stop the shipment, but Martini & Company failed to give the
necessary instructions, thereby manifesting acquiescence in the accomplished fact.
In a later letter of October 25, 1916, addressed to Macondray & Company, Martini,
referring to the incident says: “If previous to the mailing of the documents, you had
actually notified us by phone or otherwise that you could not accept our cargo in any
other way but on deck, we should have promptly given you instructions to leave it on
the lighters and at our disposal.”
From this it is inferable that one reason why the Plaintiff allowed the cargo to be
carried away without being discharged, was that the bills had been discounted and to
stop the shipment would have entailed the necessity of refunding the money which
the bank had advanced, with the inconveniences incident thereto. Another reason
apparently was that Martini discerned, or thought he discerned the possibility of
shifting the risk so as to make it fall upon the ship’s company.
With reference to the practicability of discharging the cargo in the late afternoon or
evening of Saturday, September 16, before the ship departed, as it did at 8 p.m.
some evidence was introduced tending to show that in order to get the cargo off
certain formalities were necessary which could not be accomplished, as for instance,
the return of the mate’s receipt (which had not yet come to the Plaintiff’s hands), the
securing of a permit from the customs authorities, and the securing of an order of
discharge from the steamship company. In view of the fact that the Plaintiffdid nothing
whatever looking towards the discharge of the cargo, not even so much as to notify
Macondray & Company that the cargo must come off, the proof relative to the
practicability of discharge is inconclusive. If the Plaintiff had promptly informed
Macondray & Company of their resolve to have the cargo discharged, and the latter
had nevertheless permitted the ship to sail without discharging it, there would have
been some ground for Plaintiff’s contention that its consent had not been given for the
goods to be carried on deck. Needless to say we attach no weight to the statement of
Codina that he was unable to get Macondray & Company by telephone in order to
communicate directions for the discharge of the cargo.
The evidence submitted in behalf of the Defendant shows that there was no space in
the hold to take the cargo; and it was therefore unnecessary to consider whether the
chemicals to be shipped were of an explosive or inflammable character, such as to
require stowage on deck. By reason of the fact that the cargo had to be carried on
deck at all events, if carried at all, the guaranty Exhibit D-C was so drawn as to permit
stowage either on or under deck at the ship’s option; and the attention of Codina must
have been drawn to this provision because Macondray & Company refused to issue
the bills of lading upon a guaranty signed by Codina upon another form (Exhibit R),
which contained no such provision. The messenger between the two establishments
who was sent for the bills of lading accordingly had to make a second trip and go
back for a letter of guaranty signed upon the desired form. The pretense of Codina
that he was deceived into signing a document different from that which he supposed
himself to be signing is wholly unsustained.
The result of the discussion is that Martini & Company must be held to have assented
to the shipment of the cargo on deck and that they are bound by the bills of lading in
the form in which they were issued. The trial court in our opinion erred in holding
otherwise, and in particular by ignoring, or failing to give sufficient weight to the
contract of guaranty.
Having determined that the Plaintiff consented to the shipment of the cargo on deck,
we proceed to consider whether the Defendant can be held liable for the damage
which befell the cargo in question. It of course goes without saying that if a clean bill
of lading had been issued and the Plaintiff had not consented for the cargo to go on
deck, the ship’s company would have been liable for all damage which resulted from
the carriage on deck. In the case of The Paragon (1 Ware, 326; 18 Fed. Cas. No.
10708), decided in 1836 in one of the district courts of the United States, it appeared
that cargo was shipped from Boston, Massachusetts, to Portland, Maine, upon what is
called a clean bill of lading, that is, one in the common form without any memorandum
in the margin or on its face showing that the goods are to be carried on deck. It was
proved that the shipper had not given his consent for carriage on deck. Nevertheless,
the master stowed the goods on deck; and a storm having arisen, it became
necessary to jettison them. None of the cargo in the hold was lost. It was thus evident
that although the cargo in question was lost by peril of the sea, it would not have been
lost except for the fact that it was being carried on deck. It was held that the ship was
liable. In the course of the opinion the following language was used:
“It is contended that the goods, in this case, having been lost by the dangers of the
seas, both the master and the vessel are exempted from responsibility within the
common exemption in bills of lading; and the goods having been thrown overboard
from necessity, and for the safety of the vessel and cargo, as well as the lives of the
crew, that it presents a case for a general average or contribution, upon the common
principle that when a sacrifice is made for the benefit of all, that the loss shall be
shared by all. . . . In every contract of affreightment, losses by the dangers of the seas
are excepted from the risks which the master takes upon himself, whether the
exception is expressed in the contract or not. The exception is made by the law, and
falls within the general principle that no one is responsible for fortuitous events and
accidents of major force. Casus fortuitous nemo praestat. But then the general law is
subject to an exception, that when the inevitable accident is preceded by a fault of the
debtor or person bound without which it would not have happened, then he becomes
responsible for it. (Pothier, des Obligations, No. 542; Pret. a Usage, No. 57; Story,
Bailm., c. 4, No. 241; In Majorious casibus si culpa ejus interveniat tenetur; Dig. 44, 7,
1, s. 4.)
“The master is responsible for the safe and proper stowage of the cargo, and there is
no doubt that by the general maritime law he is bound to secure the cargo safely
under deck. . . . If the master carries goods on deck without the consent of the shipper
. . . he does it at his own risk. If they are damaged or lost in consequence of their
being thus exposed, he cannot protect himself from responsibility by showing that
they were damaged or lost by the dangers of the seas. . . . When the shipper
consents to his goods being carried on deck, he takes the risk upon himself of these
peculiar perils. . . . This is the doctrine of all the authorities, ancient and modern. “
Van Horn vs. Taylor (2 La. Ann., 587; 46 Am. Dec., 558), was a case where goods
stowed on deck were lost in a collision. The court found that the ship carrying these
goods was not at fault, and that the shipper had notice of the fact that the cargo was
being carried on deck. It was held that the ship was not liable. Said the court:
“It is said that the Plaintiff’s goods were improperly stowed on deck; that the deck load
only was thrown overboard by the collision, the cargo in the hold not being injured.
The goods were thus laden with the knowledge and implied approbation of
the Plaintiff. He was a passenger on board the steamer, and does not appear to have
made any objection to the goods being thus carried, though the collision occurred
several days after the steamer commenced her voyage.”
In the case of The Thomas P. Thorn (8 Ben., 3; 23 Fed., Cas. No. 13927), decided in
the District Court in the State of New York, it appeared that tobacco was received
upon a canal boat, with the understanding that it was to be carried on deck, covered
with tarpaulins. Upon arrival at its destination it was found damaged by water, for the
most part on the top, and evidently as a consequence of rains. At the same time a
quantity of malt stowed below deck on the same voyage was uninjured. In discussing
the question whether upon a contract to carry on deck, the vessel was liable for the
wetting of the tobacco, the court said:
“It is manifest that the injury to the tobacco arose simply from the fact that it was
carried on deck. The malt, carried below, although an article easily injured, received
no damage, and the voyage was performed with usual care, and without disaster.
Indeed, there is evidence of a statement by the libelant, that tobacco must of
necessity be injured by being carried on deck. But, under a contract to carry upon
deck, the risk of any damage resulting from the place of carriage rests upon the
shipper, and, without proof of negligence causing the damage, there can be no
recovery. Here the evidence shows that all reasonable care was taken of the tobacco
during its transportation; that the manner of stowing and covering it was known to and
assented to by the shipper; and the inference is warranted that the injury arose,
without fault of the carrier, from rain, to which merchandise transported on deck must
necessarily be in some degree exposed. Any loss arising from damaged thus
occasioned is to be borne by the shipper.”
Lawrence vs. Minturn (17 How [U.S,], 100; 15 L ed., 58), was a case where goods
stowed on deck with the consent of the shipper were jettisoned during a storm at sea.
In discussing whether this cargo was entitled to general average, the Supreme Court
of the United States said:
“The maritime codes and writers have recognized the distinction between cargo
placed on deck, with the consent of the shipper, and cargo under deck.
“There is not one of them which gives a recourse against the master, the vessel, or
the owners, if the property lost had been placed on deck with the consent of its
owner, and they afford very high evidence of the general and appropriate usages, in
this particular, of merchants and shipowners.
“So the courts of this country and England, and the writers on this subject, have
treated the owner of goods on deck, with his consent, as not having a claim on the
master or owner of the ship in case of jettison. The received law, on the point, is
expressed by Chancellor Kent, with his usual precision, in 3 Com., 240: ‘Nor is the
carrier in that case (Jettison of deck load) responsible to the owner, unless the goods
were stowed on deck without the consent of the owner, or a general custom binding
him, and then he would be chargeable with the loss.’“
In Gould vs. Oliver (4 Bing., N. C., 132), decided in the English Court of Common
Pleas in 1837, Tindal, C.J., said:
“Where the loading on deck has taken place with the consent of the merchant, it is
obvious that no remedy against the shipowner or master for a wrongful loading of the
goods on deck can exist. The foreign authorities are indeed express; on that point.
And the general rule of the English law, that no one can maintain an action for a
wrong, where he has consented or contributed to the act which occasioned his loss,
leads to the same conclusion.”
The foregoing authorities fully sustain the proposition that where the shipper consents
to have his goods carried on deck he takes the risks of any damage or loss sustained
as a consequence of their being so carried. In the present case it is indisputable that
the goods were injured during the voyage and solely as a consequence of their being
on deck, instead of in the ship’s hold. The loss must therefore fall on the owner. And
this would be true, under the authorities, even though paragraph 19 of the bills of
lading, quoted near the beginning of this opinion, had not been made a term of the
contract.
It is undoubtedly true that, upon general principle, and momentarily ignoring
paragraph 19 of these bills of lading, the ship’s owner might be held liable for any
damage directly resulting from a negligent failure to exercise the care properly
incident to the carriage of the merchandise on deck. For instance, if it had been
improperly placed or secured, and had been swept overboard as a proximate result of
such lack of care, the ship would be liable, to the same extent as if the cargo had
been deliberately thrown over without justification. So, if it had been shown that,
notwithstanding the stowage of these goods on deck, the damage could have been
prevented, by the exercise of proper skill and diligence in the discharge of the duties
incumbent on the ship, the owner might still be held.
To put the point concretely, let it be supposed that a custom had been proved among
mariners to protect deck cargo from the elements by putting a tarpaulin over it; or
approaching still more to imaginable conditions in the present case, let it be supposed
that the persons charged with the duty of transporting this cargo, being cognizant of
the probability of damage by water, had negligently and without good reason failed to
exercise reasonable care to protect it by covering it with tarpaulins. In such case it
could hardly be denied that the ship’s company should be held liable for such damage
as might have been avoided by the use of such precaution.
But it should be borne in mind in this connection that it is incumbent on the Plaintiff, if
his cause of action is founded on negligence of this character, to allege and prove
that the damage suffered was due to failure of the persons in charge of the cargo to
use the diligence properly incident to carriage under these conditions.
In Clark vs. Barnwell (12 How. [U.S.], 272; 13 L. ed., 985), the Supreme Court
distinguishes with great precision between the situation where the burden of proof is
upon the shipowner to prove that the loss resulted from an excepted peril and that
where the burden of proof is upon the owner of the cargo to prove that the loss was
caused by negligence on the part of the persons employed in the conveyance of the
goods. The first two syllabi in Clark vs. Barnwell read as follows:
“Where goods are shipped and the usual bill of lading given, ‘promising to deliver
them in good order, the dangers of the seas excepted,’ and they are found to be
damaged the onus probandi is upon the owners of the vessel, to show that the injury
was occasioned by one of the excepted causes.
“But, although the injury may have been occasioned by one of the excepted causes,
yet still the owners of the vessel are responsible if the injury might have been
avoided, by the exercise of reasonable skill and attention on the part of the persons
employed in the conveyance of the goods. But the onus probandi then becomes
shifted upon the shipper, to show the negligence.
The case just referred to was one where cotton thread, put up in boxes, had
deteriorated during a lengthy voyage in a warm climate, owing to dampness and
humidity. In discussing the question of the responsibility of the ship’s owner, the court
said:
“Notwithstanding, therefore, the proof was clear that the damage was occasioned by
the effect of the humidity and dampness of the vessel, which is one of the dangers of
navigation, it was competent for the libelants to show that the Respondents might
have prevented it by proper skill and diligence in the discharge of their duties; but no
such evidence is found in the record. For caught that appears every precaution was
taken that is usual or customary, or known to shipmasters, to avoid the damage in
question. And hence we are obliged to conclude that it is to be attributed exclusively
to the dampness of the atmosphere of the vessel, without negligence or fault on the
part of the master or owners.”
Exactly the same words might be used as applicable to the facts of the present case;
and as it is apparent that the damage here was caused by rain and sea water — the
risk of which is inherently incident to carriage on deck — the Defendant cannot be
held liable. It is not permissible for the court, in the absence of any allegation or proof
of negligence, to attribute negligence to the ship’s employees in the matter of
protecting the goods from rains and storms. The complaint on the contrary clearly
indicates that the damage done was due to the mere fact of carriage on deck, no
other fault or delinquency on the part of anybody being alleged.
It will be observed that by the terms of paragraph 19 of the bills of lading, the ship is
not to be held liable, in the case of goods signed for as carried on deck, for any loss
or damage from any cause whatever.” We are not to be understood as holding that
this provision would have protected the ship from liability for the consequences of
negligent acts, if negligence had been alleged and proved. From the discussion in
Manila Railroad Co. vs. Compania Transatlantica and Atlantic, Gulf & Pacific Co. (38
Phil. Rep., 875), it may be collected that the carrier would be held liable in such case,
notwithstanding the exemption contained in paragraph 19. But however that may be
damages certainly cannot be recovered on the ground of negligence, even from a
carrier, where negligence is neither alleged nor proved.
The judgment appealed from is reversed and the Defendant is absolved from the
complaint. No express pronouncement will be made as to the costs of either
instance. SO ORDERED.