75922676 formatted transportation law

Download 75922676 Formatted Transportation Law

Post on 06-Nov-2015

215 views

Category:

Documents

3 download

Embed Size (px)

TRANSCRIPT

Transportation law

Transportation lawBarOps HeadIPY Caunan

Acads HeadIBeth Liceralde

Subject HeadIJustin Christopher

C. Mendoza

(based on the outline and class notes from Prof. Rodrigo Lope Quimbos Transporation Law class

1st semester, AY 20062007)

TaBLE OF CONTENTS

1I. General Considerations

1A. Public Utilities

3B. Transportation

11II. Common Carriers

11A. In General

13B. Common Carriage of Goods

18C. Common carriers of passengers

21D. Damages Recoverable from Common Carriers

25III. Code of Commerce Provisions on Overland Transportation

25A. Scope of Overland Transportation

25B. Nature of Contract

25C. Effect of Civil Code

25D. Contract of Carriage

26E. Responsibility of the carrier

28F. Rights and Obligations of Shipper and/or Consignee

30G. Applicability of Provisions

31IV. Admiralty and Maritime Commerce

31A. Sources of Maritime/Admiralty Laws in the Philippines

31B. Concept of Admiralty; jurisdiction over admiralty cases

31C. Vessels

31D. Persons Participating in Maritime Commerce

39E. Accidents and Damages in Maritime Commerce

46F. Special Contracts of Maritime Commerce

53G. Bill of Lading

53H. Passengers on Sea Voyage

55I. Carriage of Goods by Sea Act

64V. INTERNATIONAL AIR TRANSPORT

64A. The Warsaw Convention

65B. Applicability; meaning of international transportation

65C. Liabilities under the Convention

66D. Limitations on Liability

66E. When Limitations Unavailable

66F. Conditions on Liability

66G. Venue of Court Actions

I. General ConsiderationsA. Public Utilities

1987 Constitution, Article XII

Section 11No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

Section 17In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.

Section 18The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

Section 19The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. The Public Service Law, CA 146, as amended

Sec. 13(b)

The term "public service" includes every person that now or hereafter may own, operate, manage, or control in the Philippines, for hire or compensation, with general or limited clientele, whether permanent, occasional or accidental, and done for general business purposes, any common carrier, railroad, street railway, traction railway, sub-way motor vehicle, either for freight or passenger, or both with or without fixed route and whether may be its classification, freight or carrier service of any class, express service, steamboat or steamship line, pontines, ferries, and water craft, engaged in the transportation of passengers or freight or both, shipyard, marine railways, marine repair shop, [warehouse] wharf or dock, ice plant, ice-refrigeration plant, canal, irrigation system, gas, electric light, heat and power water supply and power, petroleum, sewerage system, wire or wireless communications system, wire or wireless broadcasting stations and other similar public services: Provided, however, That a person engaged in agriculture, not otherwise a public service, who owns a motor vehicle and uses it personally and/or enters into a special contract whereby said motor vehicle is offered for hire or compensation to a third party or third parties engaged in agriculture, not itself or themselves a public service, for operation by the latter for a limited time and for a specific purpose directly connected with the cultivation of his or their farm, the transportation, processing, and marketing of agricultural products of such third party or third parties shall not be considered as operating a public service for the purposes of this Act. What is a public utility?

Kilusang Mayo Uno Labor Center v. Garcia (1994)Public utilities are privately owned and operated businesses whose services are essential to the general public. They are enterprises which specially cater to the needs of the public and conduce to their comfort and convenience. As such, public utility services are impressed with public interest and concern. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect grants to the public an interest in that use, and must submit to the control by the public for the common good, to the extent of the interest he has thus created.

Albano v. Reyes (1989)

Franchises issued by Congress are not required before each and every public utility may operate.

A public utility is a business or service engaged in regularly supplying the public with some commodity or service of public consequence, such as electricity, gas, water, transportation, telephone or telegraph services. Apart from statutes which define public utilities that are within the purview of such statutes, it would be difficult to construct a definition of a public utility which would fit every conceivable case. As its name indicates, however, the term public utility implies a public use and service to the public. When is a business a public utility?

When it involves a commodity or service of public consequence.

2 concepts of public utility under the 1987 Constitution:1. A public utility is a partly nationalized business endeavor

2. It is a business affected with the public interest. (national emergency; general welfare; common good)2 tests for determining public utility:

1. Is it engaged in regularly supplying the public with some commodity or service (per definition in Albano v. Reyes below)

2. If #1 is uncertain, is it a public service as defined in the Public Service Law under CA 146 Sec 13(b)? If it falls under any one of the examples given under CA 146 Sec 13(b), then it is a public utility.

What does regularly supplying the public mean?

The utility must hold itself out to the public as a public utility by demand and as a matter of right, and not by permission. To determine what constitutes regularity, look at it from the perspective of the public, and not the operator.It is a service or a readiness to serve an indefinite portion of the population subject only to the limitations of the service as given by the grant such that [the utility] incurs a liability as a violation of its duty if it refuses, such that the availment of the service has become, through time, a matter of right and not of mere privilege. (also in US v. Tan Piaco)Are all public utilities commodities or service of public consequence?

Yes. All public utilities have a public consequence. But not all businesses bearing public consequence are public utilities. This is because almost all types of business have some form of regulation from the State.

To whom does public refer to? Is the word public in public utility the same in public service?

There are three senses of the word public in Transportation Law: a) public utility; b) public service; and c) definition of a common carrier under Art. 1732 of the Civil Code.

To determine a public utility, the two tests above & the definition under Albano v. Reyes apply.What is a public service?

Kilusang Mayo Uno Labor Center v. Garcia Jr. (1994)

In determining public need, the presumption of need for a service shall be deemed in favor of the applicant. The burden of proving that there is no need for a proposed service shall be with the oppositor(s).

Public convenience and necessity exists when the proposed facility or service meets a reasonable want of the public and supply a need which the existing facilities do not adequately supply. The existence or nonexistence of public convenience and necessity is therefore a question of fact that must be established by evidence, real and/or testimonial; empirical data; statistics and such other means necessary, in a public hearing conducted for that purpose. The object and purpose of such procedure, among other things, is to look out for, and protect, the interests of both the public and the existing transport operators.

Albano v. Reyes (1989)

Franchises issued by Congress are not required before each and every public utility may operate.

A public utility is a business or service engaged in regularly supplying the public with some commodity or service of public consequence, such