r f n(

n \H .

. l n1 111' 1 1:) • J

u n f l1

• J)htintifl'. aud L. d f ndant.

urt f Fir t Instance

ht b the heirs of Encarna­iia,. again t Quit rio Dabato~, nt t r boat TEDDY, Antonio -

V L. ~. DECE.M.BE~ I\. J7 1

C' , 965 anulf, et at. 1Js. Dub t ~- 919

u. 08, et al.

butos, son of Quiterio, patron f ----J)ll tiJCfli of the boat , arising to the boat and th -Jfll'n 1. ' h 1 l ou of a ' e crew " trll' o " e Joat which oc sea mishap d . t,,e ,, . , . curred unng "crcut s~,ncllrnacron Caiias and n· on April 22 19

"''' h . h d lOSdad C , 60 and f! OTl, .ave pe:l~ e . o aiias, mother After tnal, decH:4JOn was rende d

. ' d f re the dis . . of wn1ch rca s as ollows : Pos1bve portion

"Pilt;r.us~:H c.:oNSJU£Jt~<.:v, the Cou t j Q 't . D b t r renders jud defl'ndall ~ u I cno a a os, owner of th ginent sentencing

tUfll the !IUtn of P5,000.00 as damage e mol~r banca, to pay plain-. C - s resu tmg fr b EncarnaCIOn anas. om t e death 00

jiDefendant Quiterio Dabatos is Iikew' C

- th lSe sentenced to . Emilio anas, . e sum of f'3,000.00, as dama e . pay plamtiff tbe death of D1osdado Canas. The Co rt h g

8 m consequence of

favor of plaintiff Emilio Canas exclusi~ely ~s ~~de the award in of his deceased son Diosdado Canas. ' e emg the lone heir

' 4Defendant Quiterio Dabatos is finally se te d · . . . h n nee to mdemnify ptamtdfs m t e amount of P3,000.00 as moral da f · h h mages, or the mental angu1s t ey had suffered due to the loss of tw embe of their family. He shall also pay the costs.

0 m rs

"Defendant Antonio Dabatos, patron of the motor boat TEDDY iJ hereby sentenced to reimburse his co-defendant Quiterio Dabatos whatever damages are paid by the latter to the plaintiff by way ot damages.

"Inasmuch as the other defendants Rufino Sampayan, Armando Cutamora, Roberto Octura, Rizal Racaza, Teofilo Abapo, Cirilo Ma­earaya, Arturo Dabatos and Felix Cabafiero were but emp'loyees under the control of the patron, Antonio Dabatos, the Court hereby relieves them from whatever responsibility and, as a corollary, they are absolved from the complaint, without special pronouncement as to C!Oitl.,

The plaintiffs and the defendants Quiterio and Antonio •ornamed Dabatos appealed from the decision. The. ap­P8al of the plaintiffs, however , was dismi~sed for fail~re to pay the appeal docket fee. And they did not file brief as appellees. The appeal of the defendants Dabatos was

liven du ~ course. be testimony of Anto-~ faets of the case culled from t b t TEDDY was

nio .hM.. ... J._ 11 . The motor oa .,.,.ws are as fo ows · . . D b tos It has been O'lnl84 &nd operated by Quiterw a a .

COURT OF ;\P PEAJJS HJ~I,O ft'J'H

920 -----=-fi cl al 'IJH. DaualiOH, ct. nl. Ca all, " .

· to 19fir: J 11 that YN~r I ut,r,, 1t WUH t·p . ation pr1or ,v. m. oper or the fir t time. On N ovomb r I O, I vr,g 011 ~J dl pau·cdbi t .. lied "Purim" wus topairod, how vt •·, ccmt r•n t·y of the on c.l , . Q ' l . J • to the testimony of Antort io, IHH f t;thor ut t,n t . •ltt t· ,II th t thnt repair was mude on Mn1ch JO, 101?U. (p. 17J, t.s~n.) The special permit ii:!I:!UOd by th I 1 ul,lH Uttrl

Boilers Jnspection Divi~:~ ion of tho u u.•·ouu or ~J IIHltmtM for the operation of the boat had expn·erl on ~ bt·uur,y 5, 1960, without having been J'enewod, I!)xhibllH H and B- 1, (p. 113, t .s.n.) such that when thq ~on tnlHhap oc .. curred during the trip of the bout or1 Ar>rll 22, 1960 ·th boat had trfo'l:luch special permit. On thiH :f'ntul occun· 11 •

Encarnachm' Canas and Diosdatlo 'niiaH poriHhcd ut H n when the boat capsized. Under its 029Jir~nn!.J.. th \ boat was authorized as common currier ~r cnJ'S.W08 onl y, . It had no permission to carry passertgm'e; othor--t'tlltn H1:1 l seven (7) crew members. Antonio Dnhntos WnH i.ho ·pn­tron and skipper of the boat on April 22, 1 !160. 1'hl Bureau of Customs had not issued ' to him nny spocinl permit for unlicensed Officers, Exhibit C- 1. 'rho bortt'H usual route is from Hingotanan, Boh'ol to Ccbu, nnd vic • versa, and for its one way trip at least flve htHU'I'\ wor needed. The customary time of departure of' th ' bont from Hingotanan to Cebu was in the morning, bocltmi the permit states that it cnn navfgnte on dnytim on!~·. Durin~ the nine months before April 22, 1960 thnt Antonio had skippered the boat he never left Jlingotnnnn ro•· Ct'hu in ~he afternoon, (p. 110, t.s.n.) 'rhe place CalwltlHtr11, an Island, where the boat capsized was not the uKnnl rnntt of the boat. "Q. How about that route you tonk fi'Oill Il l· ngotanan to Calunasan, Jetafe, Bohol waM th uHunl nnttt1 or not the usual t ., A ' . . rou e · . That WaR no~ tlu wwnl ro1d1~ tn uomg to Cebu be 'f . cause 1 we start enrly fu tho null'llhlf.' we pass m the plac II d B that t' e ca e anakon nnci Snndnrnn l~tt l crf tme 'We started lat · tafe Bohol t t 6 eo we passed by Cnlnnm~nn, ·''' (pp: 91_92 to pas)s he night because ther wntt nhm t•rliu.'' , .s.n.

VOL. 8, DECEMBER - -- 17, 1965

Caiias, et al. vs. Db -- 921 - - a atos, et al. --

:\t about 3 :00 o'clock in the afterno . -

b'tle tho boat was moored at H' on of Apr11 21 19GO " d · th b mgotanan ' ~:~eing Joadc m e oat under the su er .. cargoes were

n. portion of the cargoes belong dp t VlSlon of the pat­~as the deceased, some to Antonio' e 0 Encarnacion ca. nd' the rest to "those persons" whos uncle. Alfredo Abapo,

1 "' t ) t b were m the boat ( 11<>, .s.n. , o e taken to Cebu W'th pp.

ca;nacion Cai1as she was in the bo~t n lt rei spect t~ En-b t h h d 0 on Y as shipper of cargoes, u s e a the express consent of th

·-Q. In other words, Encarnacion Canas h d e patron. . . t b .ar·d b a your per-

mlSSJOn o o your anca TEDDY beca h ? A y ( use s e was a

shipper · · es. p. 117 • t.s.n.) After the cargoes had been loaded the ~oat started the trip at about 3 :30 o'clock of that day. Aside from the members of the crew there were also thirte.en pas~engers on board the boat, among~ them, EncarnaciOn Canas and her son, Diosdado Canas.~ Denying that the thirteen persons in the boat were paying passengers, Antonio declared at first that said persons "requested me that they would go to Cebu", but "I refused IDd turned down their request because that banca was not a passenger banca.", and "Although they listened they did not go away." On this point, regarding the presence of those persons in the boat, Teofi.1o Abapo in charge of the administration of the boat or in charge of the trip, a witness for the defendants, gave a version insinuating that the thirteen persons had surreptitiously boarded the boat. To fJUOte from Abapo's testimony-"Q. Why were they able to board your boat to ride your boat, if you were not aM- , ? A We did not allow them IICIUWed to carry passengers . · . . to board the banca and they did not even secure per~Iss~~n h b t hen we were there m e

otn Antonio Dabatos, u w, * • * A. I did not know banca they were already there. b · they were already 1Vhy because when we reached the . ~nc~abatos on further there:" (pp. 144-145, t.s.n.) An:~;1~hat the thirteen per­"-tlons to him declare~, ho.we no~Iedge and consent, be­SOns Were in the boat with his k h ' of some of the cause Encarnacion Canas was the s Ipper

< a1 a , £t al. v . IJaoaros, er; at. --------nd the other "would serve as cargadore8 of th _ .................... .::· of my bnncn." To quote from Antonio's testt

" Q Wh,. were thev on board your banca? A 11- . • . . .t'\

:u they " r the owners of the cargoes loaded in ou~ Q. \\"ill you plense name the other persons, if any

1 ,, ith you in that banca? A. Gonzalo Padmo' 1 1 ngnrflt, Balbina Dncolpo, Petrona Dabatos, On~

, d 1 , th spou8e~ Mr. nnd Mrs. 'Badajos, Alfre~o Saba. 1 n • 11, ont< mor .'' (p. 85, t.s .n.) " Q. In what category di th y t k thnt banca of yours? A. They would serve ~ co1·pacl{)res of the cargoes of my ban ca." (p. 87, t .s.n.), nd • use "they helped us load the cargoes so that they

\l ill be allowed to ride, and because there was no other tran portation so they were able to r ide with us." (p. 11 , t.s.n.)

to the rondition of the weather when the trip was made, denying the testimony of Emilio Caiias, a witness for the plaintitl's, that the weather on that day (April 21)

windy, cloudy and raining, Antonio said that "the ther was fine". ( p. 88, t.s.n.)

lrineo Cabreros, an employee of the Weather Bureau at bu, in charge of Port Meteorological Liaison Officer de­

dared as follows: "Q. From this weather observation, ac­eord!Da to this Exhibit 2, what was the weather condition oa pril 20, 1960? A. The weather condition seems to ap­,.r llOI'ID&l except the slight change of the pressure of the atlaolphere and the wind was coming from the Northeast tiMm East. COURT: Q. According to Exhibit 3 which is Me NHrH ride of Exhibit 4, what was the condition of lh tHGtMr ott A pril 21, 1960? A. Now, on this date the ,.uure beg4n to fall or drop which was caused by the ~ &tvrbance in the p'resence of typhoon Karen.

ftl'. BACALTOI (counsel for defendants) CONTINUES : Q. ~ to B#Aibit 8, you said that there was a change of Me flhlospAeric Pf'8BBUre, can you inforrn what time there WI a cltott.ge of atmospheric pressure? A. W,eU, it stafftecl ,_ aoon "' to tke morning of the rne.xt day. couRT:

VOL. 8, DECEl !BER -- - " 17, 1965

Canat~, et al. vs. Jib - 923 a atoll, et al.

,Hhat was the pressure at 7 .00 , 1\ n . . 0 clock . _.. t004.4 millibars. • • • Q. And Whe m the morning? ~t-. that means that there is depr .n the fig.ll'e is u e tJllS B ess10n? A y y J{onor, ATTY. • ~CALTOS CONTINUES: Q ·.. . . e ' our

ce with Exh1b1t 3, can you enlighten th ... ow, m ac:e.ord­Jilf Cebu was affected with this atmos h e .Court -''hat p~ o h. . d th P enc pres.sur'"., puring t IS periO e typhoon, or, we call tba . - . . ..... _ fla1'P.Jl struck the southern part of Ceb tt deprer:...sl.(ln, ~- · h · u a about 8·00 O'cloCk m t e next mormng and accor,1;- to th · · ' uut.g e pressure reading ?e~e, 1t wa~ ver; clo~ to the province of ~bu 1JeC8USe 1t IS yet 7.00 o clock m the morning and Geb was bit at abou.t 8:00 o'clock in the morning. • * * Conrr ~ Q. How about In J etafe, Bohol what is the effec.-t of tMt dePression? A. The weather condition there must be -ra-y bad already because it had an earlier period affected than In Cebu because it is located in the East side of our localit-;-• • • Q. Do you have any observation of the end oft~~ ~tart ? A. This observatio-n started at 8:00 c/ cwek in the 1110f"ning of Apri~ 21, 1960 and ended 7:00 r/ cwek in the fiU11'fling the following day, for thie record sheet of April 11." (pp. 28, 29, 30, 31 and 32, t .s.n., June 5, 1962.) "Q. What was the pressure in ·your observation? A. StiU th.e '""ure is dropping. Q. Where is this shown in Exhibit "A. This is at 12:30 noon, local time, of Apn121. Here II ODiy inches. • • • Q. Now, bow long such depression lilted? A. The whole day ; the effects of t~ lasted the ,.,-.u• day until signs of depression begin to lmpro:;) ~e

day." (pp. 35, 36, 37 and 38, t.s.nB., ~ 1 .. ba . d as to what tow'lls of o o • m-

JOD ve any I. ea . \\. eather Bureau is con-81 your experience m t~~tted lines? A. Well, I am

are affected ?Y tbes? he towns but in the gener­much acquainted wJth td a little north of Tagbi­

IIIJ)ect the disturbance ~asse its course. Q. Can yon and South of Cebu Clty on area from Tagbilaran

us as to the coverage or ? A In this scale

b typhoon Karen · · . 1 affected Y . the statute ID.lles. --.tan be determined by usmg

24 COL-RT OF APPEALS REPORTS

Coii.a-: ct al. vs. Dabatos, et al.

i:-- : 1 ... t within the proximity of . T~gbilar~n-~uai a little rth l f Tagbilaran; because th1~ 1s mov~ng m a North~ ~t ~ ur~e it moYe toward~ a httle up m .the directi(m

... ( rth b~ we·t. Q ... 'ow, m accordance w1th that scale ~ ·an not. fully identify the po~tion or area. affected by t\ phoon K<lren insofar as Bohol 1s concerned! A. Well

1r 1 am :.~llowed to see a bigger map (Witness now looking t • hig m< p) it passed almost at Calape, Bohol but a

little ~outh of Calape. Q. \Viii you please restate, I did not geot ~-ou yery well when you told this Honorable Court a5 to the direction of the wind that hit Cebu, will you pleaseo restate that wind direction which hit Cebu? A. 7'1tc "tJ·mlgest m· ma:rhnwn wind speed in Cebu during typhoon Kare1r was coming from the East-NoTtheast at the ~,-d of 30 miles pe1· hour. Q. Could we fai'rl?J say when you 1 East-Xortheast that that wind passed by Bohol and hi~

C~buf • • • A. O.f Course, this character of wind should crJso po& BoJwl. Q. Of the two p'rovinces Bohol and Cebu, wiicl of these two provinces was earlier hit by typhoon

Cftfl1 - A. It should be Bohol first, being located in the ~ of Cebu." (pp. 61, 62, 63, and 64, t.s.n. id.) So that according to your experience would you con­it still advisable for an 'arais' (patron) of a motor

-- to navigate, say, from Bohol to Cebu with that •.tiller mndition as already described? A. Well, if you are .. my opinion about it, if I am a skipper, which I am

I would rather get more cautious movement on my ••'ac a sailor if such condition occurs, but I am not a llilor ao I would rather give this opinion to the sailor Nee-If. Q. Ia otker words, if you were asked to give _,. .,._ to the sailor you will advise him not to pro~ .,.. .,.tM~e? A. I should." (pp. 67-68, t.s.n. id.)

O.Unnmg his testimony, Antonio Dabatos said that at li:IO o'doek in the afternoon of April 21, the b~at

.... !Ill amclior at the island of Calunasan, Bohol which 1Mlt "- 1I8Ual route in going to Cebu from Hingotanan, cQer to take P'-... ut· f · · ht " and ''1

~~ 1on or the commg n1g · '

VOL. 8, DECEl\1:BE ~--- Rl719

,...,- Canas, et al -;;- ' 65

92S • 8 · Dab t

----------- a os, et al.

told JJlY crew r_n:mbers as wen as _ ca to be vigilant in the n . the other per

:: I told t~em not to sleep ~:~t, because ther:o~: in t~e in the mormng of April 22 "W . At about 2 ·oo s. ~am .-~nd which caused our bane e twere hit by a v~ry ~tc ock w• "A Th a o cap . , rong t.&Jl·) • e waves were b' ~Ize. (pp. 94 95

• h d ' Ig, the Wind ' ' the ram was ar . ' (p. 97 t ) was strong and capsized all the persons. wer~ t~~wn 'Y'hen the boat had six (6) of the passengers have P . h mto the water, and carnaeion Canas and Diosdado C e~Is ed, among them En-

l . . anas. In c atmmg exculpation for the d th

,.,«as and Diosdado Canas a d . ea . . of Encarnacion \J4IU , n m assru h d · . tile appellants have assigned two erro c t e d' ecision, the court erred in holding that the thirte' on n m~ that

1 d · ersons m the

boat, exc u mg the crew members, were carried as pas-sengers, and that the appellants were guilty of gross neg-ligence.

~there is no debate as to the fact that not one of the itirieen passengers have paid an amount of money as fare :fGr their conveyance from Hingotanan to Cebu. The un­disputed fact, however, is that all of them were in the boat with the knowledge and consent of the patron. The eleven passengers, other than Encarnacion and Diosdado, were in the boat 'because they have helped in loading the cartoes in the boat, and "to serve as cargadores of the CVgoes", presumably, in unloading them at the ~lace of «Mblation. For those services they we~e ~ern~Itted to be a the boat and to proceed to their destmatl.on m .ceb~ . '111.:.. • d ere the valuable considerat10n m ~-. Sei'Vlces rendere w . re "In onerous con-Eilcbange for the transportatwt ~a for each contracting tracts the cause is und~rstood. 0 ta thing or service PY Patty, the prestation or ..,promise o the servi'ce or benefit the ttber. in remuneratorY . ones, t ts -of pure benefi~ Wllf6 ~& ~emunerated ; . and in co~ brae efactor." (Article .\ . rt of the en es-~ the mere hbera 1 Y . lar reference to the pr_ la.&o, Civil Code.) , Wit~ pa:t~~u hel' son, Diosdado. Canas 4ladt of Encarnacion Canas

C:OUUT OF Al'l't 4;J\t4:-;l l'J,:I'OI~' I'H

('(tftntr, t!f rrf. l !H. n crhrtlrm, I I rrl .

PI ley to obligate themMelv s In at'l'lll'durtt' wilh lhl~ ('od , and mu1t prove that they hu v 14kill, <"ntmcit,v, und tHtHii n Ut'U11 r qulred to commaud und dit't•ct tho VCRHl•l, IS

ablteb d by marine or navlgution lnwa, OJ'dbuu1c R, ot laUon•, and muet not be dlsqunlifh•d uccording to tho

Hml tor th discharge or the dutiua of that po~ilion." tlcl 811 of the same Code impo~o~cH on lhl• ca ptain or

matawr ot th ve&nl the tluty "'l'o comply with tho oblign. ttl tmp01 d by the laws and regulations of nuvjgation,

ut*oma, h alth, and otherM", nnd for tho patron 'M IIOtl­

pllan~ With this duty, the OWiler Of the bont iR lia})Je. 11

"- Ill. The C!aptaln shall be dvilly llahlo to the• 11 hip ttiCNtl, tM to tht third per10n1 who may hnvo mndt• ('(IJlttnclH wilh

~~ I • • • .... FOl' thOle arlslnar b:r rtcuon of u mleuso oC vowcl'K nnd non­~j ol dutltl oorr.apondlnr to him ln nc<'ordtut<·o with Articl(•!l

llt,., (See al1o Sontua & Co. ,.,., 0 8()f'io, 4!l Ph il. n lJ.)

• f~ the fact lhat under its expired Hpeciul permit btat ,.TEl>D " could navigate for freight only, and

thtreot aR;wed certain pasMengerR to bonrd d to be tran ported from port to port. Under

a frefrhter can ferry passengerR if it haH n spe­~ do ao.

t of th d~ts, however, did(ri~ have Ruch ·.IJiellaJ Plftn!t. F h, under the exp1te'u permit of

~-rtlldattt the boat was good for "<la~naviJta­» lblt. but the patron undertook to navigate at ni~ht.

of departure of the boat wa~ in the IMIIdw·m order that It could negotiate the f>-hour triP •• Ull lab.., but on the fatal day of the occul'rence ..,....,.~; Wahap tbe boat departed at 3:30 o'clock in t~1e

111!11110118 and tbua embarked on a nighttime navigatwn m

VOL. 8, DECEMBER -------- 17, 1965

Canas, et al -------- · vs. Dabat os, et al. ---

929

'flolftion of the permit Pre . ..:a.A boat deviated from its u VIously granted to 't -h~ 111¥ bl' h d t .sual cour f 1 • l'"lfth 1118 esta IS e he island of C l se, or as the e . d ' flclnity whereof the boat cap .a udnasan, in the i~~:ntce

f th Slze is not 'thi Ia e e~urse o e voyage from Cebu to B WI . n the !lsual t,o veer towards Calunasan in . oh?l. The boat had tot& For this violation the Vl~w. of Its belated depar­Jiable to the ship agent or 0~ap am or master is civilly .Ja liable to third persons. ner and the latter in turn

. ' . s an act of God proxiJnate cause of t?e ~::e~essarilY exposed is liable if the captain