transpo finals.digest3

7/26/2019 Transpo Finals.digest3

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THIRD DIVISION[G.R. No. 112287. December 12, 1997]

NATIONAL STEEL CORPORATION,petitioner,

vs.COURT OF APPEALS AND LASONSS!IPPING, INC., respondents.[G.R. No. 112"#$. December 12, 1997]

LASONS S!IPPING, INC.,petitioner, vs.COURT OF APPEALS AND NATIONAL STEELCORPORATION, respondents.D E C I S I O NPANGANI%AN, J.&

The Court finds occasion to apply the rules on theseaworthiness of aprivatecarrier, its owners responsibilityfor damae to the caro and its liability for demurrae andattorneys fees! The Court also reiterates the well"#nown rulethat findins of facts of trial courts, when affirmed by theCourt of $ppeals, are bindin on this Court!

T'e C()e%efore us are two separate petitions for re&iew filed by

National Steel Corporation 'NSC( and Vlasons Shippin, Inc!'VSI(, both of which assail the $uust )*, )++ Decision ofthe Court of $ppeals! -if .support/ootnotes0-)0-endif0The Court of $ppealsmodified the decision of the Reional Trial Court of 1asi,2etro 2anila, %ranch )3 in Ci&il Case No! *)4! The RTCdisposed as follows5WHEREFORE, judgment is hereby rendered in favor of defendant

and against the plaintiff dismissing the complaint with cost against

plaintiff, and ordering plaintiff to pay the defendant on thecounterclaim as follows:

)! The sum of 146,777!77 as unpaid freiht and 188,777!77 asdemurrae with interest at the leal rate on both amounts from

$pril 4, )+43 until the same shall ha&e been fully paid9*! $ttorneys fees and e:penses of litiation in the sum of1)77,777!779 and


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! Cost of suit!

SO ORDERED. [if !supportFootnotes][2][endif]

On the other hand, the Court of $ppeals ruled5WHEREFORE, premises considered, the decision appealed from is

modified by reducing the award for demurrage to P44,000.00 anddeleting the award for attorneys fees and expenses of litigation.

Except as thus modified, the decision is AFFIRMED. There is no

pronouncement as to costs.

SO ORDERED. [if !supportFootnotes][3][endif]

T'e F(c*)The MV Vlasons Iis a &essel which renders trampin ser&iceand, as such, does not transport caro or shipment for the

eneral public! Its ser&ices are a&ailable only to specificpersons who enter into a special contract of charter partywith its owner! It is undisputed that the ship is a pri&atecarrier! $nd it is in this capacity that its owner, VlasonsShippin, Inc!, entered into a contract of affreihtment orcontract of &oyae charter hire with National SteelCorporation!The facts as found by Respondent Court of $ppeals are as

follows5(1) On July 17, 1974, plaintiff National Steel Corporation (NSC) as

Charterer and defendant Vlasons Shipping, Inc. (VSI) as Owner,

entered into a Contract of Voyage Charter Hire (Exhibit B; also

Exhibit 1) whereby NSC hired VSIs vessel, the MV VLASONS I

to make one (1) voyage to load steel products at Iligan City and

discharge them at North Harbor, Manila, under the following terms

and conditions, viz:

1. x x x x x x.2. Cargo: Full cargo of steel products of not less than 2,500 MT,

10% more or less at Masters option.

3. x x x x x x

4. Freight/Payment: P30.00 /metric ton, FIOST basis. Payment

upon presentation of Bill of Lading within fifteen (15) days.


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5. Laydays/Cancelling: July 26, 1974/Aug. 5, 1974.

6. Loading/Discharging Rate: 750 tons per WWDSHINC.

(Weather Working Day of 24 consecutive hours, Sundays and

Holidays Included).

7. Demurrage/Dispatch: P8,000.00/P4,000.00 per day.

8. x x x x x x

9. Cargo Insurance: Charterers and/or Shippers must insure the

cargoes. Shipowners not responsible for losses/damages except on

proven willful negligence of the officers of the vessel.

10. Other terms:(a) All terms/conditions of NONYAZAI C/P [sic]

or other internationally recognized Charter Party Agreement shall

form part of this Contract.

x x x x x x x x x

The terms F.I.O.S.T. which is used in the shipping business is a

standard provision in the NANYOZAI Charter Party which stands

for Freight In and Out including Stevedoring and Trading, which

means that the handling, loading and unloading of the cargoes are

the responsibility of the Charterer. Under Paragraph 5 of the

NANYOZAI Charter Party, it states, Charterers to load, stow and

discharge the cargo free of risk and expenses to owners. x x x

(Underscoring supplied).

Under paragraph 10 thereof, it is provided that (o)wners shall,

before and at the beginning of the voyage, exercise due diligence

to make the vessel seaworthy and properly manned, equipped and

supplied and to make the holds and all other parts of the vessel in

which cargo is carried, fit and safe for its reception, carriage and

preservation. Owners shall not be liable for loss of or damage of

the cargo arising or resulting from: unseaworthiness unless causedby want of due diligence on the part of the owners to make the

vessel seaworthy, and to secure that the vessel is properly manned,

equipped and supplied and to make the holds and all other parts of

the vessel in which cargo is carried, fit and safe for its reception,

carriage and preservation; xxx; perils, dangers and accidents of the


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sea or other navigable waters; xxx; wastage in bulk or weight or

any other loss or damage arising from inherent defect, quality or

vice of the cargo; insufficiency of packing; xxx; latent defects not

discoverable by due diligence; any other cause arising without the

actual fault or privity of Owners or without the fault of the agents

or servants of owners.

Paragraph 12 of said NANYOZAI Charter Party also provides that

(o)wners shall not be responsible for split, chafing and/or any

damage unless caused by the negligence or default of the master

and crew.

(2) On August 6, 7 and 8, 1974, in accordance with the Contract of

Voyage Charter Hire, the MV VLASONS I loaded at plaintiffs pier

at Iligan City, the NSCs shipment of 1,677 skids of tinplates and

92 packages of hot rolled sheets or a total of 1,769 packages with a

total weight of about 2,481.19 metric tons for carriage to Manila.

The shipment was placed in the three (3) hatches of the ship. Chief

Mate Gonzalo Sabando, acting as agent of the vessel[,]

acknowledged receipt of the cargo on board and signed the

corresponding bill of lading, B.L.P.P. No. 0233 (Exhibit D) on

August 8, 1974.

(3) The vessel arrived with the cargo at Pier 12, North Harbor,

Manila, on August 12, 1974. The following day, August 13, 1974,

when the vessels three (3) hatches containing the shipment were

opened by plaintiffs agents, nearly all the skids of tinplates and hot

rolled sheets were allegedly found to be wet and rusty. The cargo

was discharged and unloaded by stevedores hired by the Charterer.

Unloading was completed only on August 24, 1974 after incurring

a delay of eleven (11) days due to the heavy rain which interruptedthe unloading operations. (Exhibit E)

(4) To determine the nature and extent of the wetting and rusting,

NSC called for a survey of the shipment by the Manila Adjusters

and Surveyors Company (MASCO). In a letter to the NSC dated

March 17, 1975 (Exhibit G), MASCO made a report of its ocular


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inspection conducted on the cargo, both while it was still on board

the vessel and later at the NDC warehouse in Pureza St., Sta. Mesa,

Manila where the cargo was taken and stored. MASCO reported

that it found wetting and rusting of the packages of hot rolled

sheets and metal covers of the tinplates; that tarpaulin hatch covers

were noted torn at various extents; that container/metal casings of

the skids were rusting all over. MASCO ventured the opinion that

rusting of the tinplates was caused by contact with SEA WATER

sustained while still on board the vessel as a consequence of the

heavy weather and rough seas encountered while en route to

destination (Exhibit F). It was also reported that MASCOs

surveyors drew at random samples of bad order packing materials

of the tinplates and delivered the same to the M.I.T. Testing

Laboratories for analysis. On August 31, 1974, the M.I.T. Testing

Laboratories issued Report No. 1770 (Exhibit I) which in part,

states, The analysis of bad order samples of packing materials xxx

shows that wetting was caused by contact with SEA WATER.

(5) On September 6, 1974, on the basis of the aforesaid Report No.

1770, plaintiff filed with the defendant its claim for damages

suffered due to the downgrading of the damaged tinplates in the

amount of P941,145.18. Then on October 3, 1974, plaintiff

formally demanded payment of said claim but defendant VSI

refused and failed to pay. Plaintiff filed its complaint against

defendant on April 21, 1976 which was docketed as Civil Case No.

23317, CFI, Rizal.

(6) In its complaint, plaintiff claimed that it sustained losses in the

aforesaid amount of P941,145.18 as a result of the act, neglect and

default of the master and crew in the management of the vessel aswell as the want of due diligence on the part of the defendant to

make the vessel seaworthy and to make the holds and all other

parts of the vessel in which the cargo was carried, fit and safe for

its reception, carriage and preservation -- all in violation of

defendants undertaking under their Contract of Voyage Charter


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Hire.

(7) In its answer, defendant denied liability for the alleged damage

claiming that the MV VLASONS I was seaworthy in all respects

for the carriage of plaintiffs cargo; that said vessel was not a

common carrier inasmuch as she was under voyage charter

contract with the plaintiff as charterer under the charter party; that

in the course of the voyage from Iligan City to Manila, the MV

VLASONS I encountered very rough seas, strong winds and

adverse weather condition, causing strong winds and big waves to

continuously pound against the vessel and seawater to overflow on

its deck and hatch covers; that under the Contract of Voyage

Charter Hire, defendant shall not be responsible for losses/damages

except on proven willful negligence of the officers of the vessel,

that the officers of said MV VLASONS I exercised due diligence

and proper seamanship and were not willfully negligent; that

furthermore the Voyage Charter Party provides that loading and

discharging of the cargo was on FIOST terms which means that the

vessel was free of risk and expense in connection with the loading

and discharging of the cargo; that the damage, if any, was due to

the inherent defect, quality or vice of the cargo or to the

insufficient packing thereof or to latent defect of the cargo not

discoverable by due diligence or to any other cause arising without

the actual fault or privity of defendant and without the fault of the

agents or servants of defendant; consequently, defendant is not

liable; that the stevedores of plaintiff who discharged the cargo in

Manila were negligent and did not exercise due care in the

discharge of the cargo; and that the cargo was exposed to rain and

seawater spray while on the pier or in transit from the pier toplaintiffs warehouse after discharge from the vessel; and that

plaintiffs claim was highly speculative and grossly exaggerated

and that the small stain marks or sweat marks on the edges of the

tinplates were magnified and considered total loss of the cargo.

Finally, defendant claimed that it had complied with all its duties


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and obligations under the Voyage Charter Hire Contract and had

no responsibility whatsoever to plaintiff. In turn, it alleged the

following counterclaim:

(a) That despite the full and proper performance by defendant of its

obligations under the Voyage Charter Hire Contract, plaintiff

failed and refused to pay the agreed charter hire of P75,000.00

despite demands made by defendant;

(b) That under their Voyage Charter Hire Contract, plaintiff had

agreed to pay defendant the sum of P8,000.00 per day for

demurrage. The vessel was on demurrage for eleven (11) days in

Manila waiting for plaintiff to discharge its cargo from the vessel.

Thus, plaintiff was liable to pay defendant demurrage in the total

amount of P88,000.00.

(c) For filing a clearly unfounded civil action against defendant,

plaintiff should be ordered to pay defendant attorneys fees and all

expenses of litigation in the amount of not less than P100,000.00.

(8) From the evidence presented by both parties, the trial court

came out with the following findings which were set forth in its

decision:

(a) The MV VLASONS I is a vessel of Philippine registry engaged

in the tramping service and is available for hire only under special

contracts of charter party as in this particular case.

(b) That for purposes of the voyage covered by the Contract of

Voyage Charter Hire (Exh. 1), the MV VLASONS I was covered

by the required seaworthiness certificates including the

Certification of Classification issued by an international

classification society, the NIPPON KAIJI KYOKAI (Exh. 4);

Coastwise License from the Board of Transportation (Exh. 5);International Loadline Certificate from the Philippine Coast Guard

(Exh. 6); Cargo Ship Safety Equipment Certificate also from the

Philippine Coast Guard (Exh. 7); Ship Radio Station License (Exh.

8); Certificate of Inspection by the Philippine Coast Guard (Exh.

12); and Certificate of Approval for Conversion issued by the


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Bureau of Customs (Exh. 9). That being a vessel engaged in both

overseas and coastwise trade, the MV VLASONS I has a higher

degree of seaworthiness and safety.

(c) Before it proceeded to Iligan City to perform the voyage called

for by the Contract of Voyage Charter Hire, the MV VLASONS I

underwent drydocking in Cebu and was thoroughly inspected by

the Philippine Coast Guard. In fact, subject voyage was the vessels

first voyage after the drydocking. The evidence shows that the MV

VLASONS I was seaworthy and properly manned, equipped and

supplied when it undertook the voyage. It had all the required

certificates of seaworthiness.

(d) The cargo/shipment was securely stowed in three (3) hatches of

the ship. The hatch openings were covered by hatchboards which

were in turn covered by two or double tarpaulins. The hatch covers

were water tight. Furthermore, under the hatchboards were steel

beams to give support.

(e) The claim of the plaintiff that defendant violated the contract of

carriage is not supported by evidence. The provisions of the Civil

Code on common carriers pursuant to which there exists a

presumption of negligence in case of loss or damage to the cargo

are not applicable. As to the damage to the tinplates which was

allegedly due to the wetting and rusting thereof, there is unrebutted

testimony of witness Vicente Angliongto that tinplates sweat by

themselves when packed even without being in contract (sic) with

water from outside especially when the weather is bad or raining.

The rust caused by sweat or moisture on the tinplates may be

considered as a loss or damage but then, defendant cannot be held

liable for it pursuant to Article 1734 of the Civil Case whichexempts the carrier from responsibility for loss or damage arising

from the character of the goods x x x. All the 1,769 skids of the

tinplates could not have been damaged by water as claimed by

plaintiff. It was shown as claimed by plaintiff that the tinplates

themselves were wrapped in kraft paper lining and corrugated


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cardboards could not be affected by water from outside.

(f) The stevedores hired by the plaintiff to discharge the cargo of

tinplates were negligent in not closing the hatch openings of the

MV VLASONS I when rains occurred during the discharging of

the cargo thus allowing rainwater to enter the hatches. It was

proven that the stevedores merely set up temporary tents to cover

the hatch openings in case of rain so that it would be easy for them

to resume work when the rains stopped by just removing the tent or

canvas. Because of this improper covering of the hatches by the

stevedores during the discharging and unloading operations which

were interrupted by rains, rainwater drifted into the cargo through

the hatch openings. Pursuant to paragraph 5 of the NANYOSAI

[sic] Charter Party which was expressly made part of the Contract

of Voyage Charter Hire, the loading, stowing and discharging of

the cargo is the sole responsibility of the plaintiff charterer and

defendant carrier has no liability for whatever damage may occur

or maybe [sic] caused to the cargo in the process.

(g) It was also established that the vessel encountered rough seas

and bad weather while en route from Iligan City to Manila causing

sea water to splash on the ships deck on account of which the

master of the vessel (Mr. Antonio C. Dumlao) filed a Marine

Protest on August 13, 1974 (Exh. 15) which can be invoked by

defendant as a force majeure that would exempt the defendant

from liability.

(h) Plaintiff did not comply with the requirement prescribed in

paragraph 9 of the Voyage Charter Hire contract that it was to

insure the cargo because it did not. Had plaintiff complied with the

requirement, then it could have recovered its loss or damage fromthe insurer. Plaintiff also violated the charter party contract when it

loaded not only steel products, i.e. steel bars, angular bars and the

like but also tinplates and hot rolled sheets which are high grade

cargo commanding a higher freight. Thus plaintiff was able to ship

high grade cargo at a lower freight rate.


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(I) As regards defendants counterclaim, the contract of voyage

charter hire under paragraph 4 thereof, fixed the freight at P30.00

per metric ton payable to defendant carrier upon presentation of the

bill of lading within fifteen (15) days. Plaintiff has not paid the

total freight due of P75,000.00 despite demands. The evidence also

showed that the plaintiff was required and bound under paragraph

7 of the same Voyage Charter Hire contract to pay demurrage of

P8,000.00 per day of delay in the unloading of the cargoes. The

delay amounted to eleven (11) days thereby making plaintiff liable

to pay defendant for demurrage in the amount of P88,000.00.

$ppealin the RTC decision to the Court of $ppeals, NSCalleed si: errors5IThe trial court erred in findin that the 2V V;$SONS I wasseaworthy, properly manned, e0-endif0

$s earlier stated, the Court of $ppeals modified the decisionof the trial court by reducin the demurrae from 188,777!77


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to 1>>,777!77 and deletin the award of attorneys fees ande:penses of litiation! NSC and VSI filed separate motionsfor reconsideration! In a Resolution-if .support/ootnotes0-60-endif0datedOctober *7, )++, the appellate court denied both motions!

?ndaunted, NSC and VSI filed their respecti&e petitions forre&iew before this Court! On motion of VSI, the Courtordered on /ebruary )>, )++> the consolidation of thesepetitions!-if .support/ootnotes0-30-endif0

T'e I))+e)In its petition-if .support/ootnotes0-40-endif0and memorandum,-if .support/ootnotes0-80-endif0NSC raises the followin ( @hether or not NSCs ste&edores were nelient and causedthe wettin-B0rustin of NSCs tinplates!

In its separate petition, -if .support/ootnotes0-+0-endif0VSI submits for theconsideration of this Court the followin alleed errors of the

C$5A. The respondent Court of Appeals committed an error of law in

reducing the award of demurrage from P88,000.00 to P44,000.00.

B. The respondent Court of Appeals committed an error of law in

deleting the award of P100,000 for attorneys fees and expenses of


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litigation.

$mplifyin the foreoin, VSI raises the followin issues inits memorandum5 -if .support/ootnotes0-)70-endif0

I. Whether or not the provisions of the Civil Code of the

Philippines on common carriers pursuant to which there exist[s] apresumption of negligence against the common carrier in case of

loss or damage to the cargo are applicable to a private carrier.

II. Whether or not the terms and conditions of the Contract of

Voyage Charter Hire, including the Nanyozai Charter, are valid

and binding on both contracting parties.

The foreoin issues raised by the parties will be discussedunder the followin headins5

)! uestions of /act*! Affect of NSCs /ailure to Insure the Caro! $dmissibility of Certificates 1ro&in Seaworthiness>! Demurrae and $ttorneys /ees!

T'e Co+r*) R+-The Court affirms the assailed Decision of the Court of

$ppeals, e:cept in respect of the demurrae!Pre-m-(r3 4(**er& Common Carrier or Private Carrier?

$t the outset, it is essential to establish whether VSIcontracted with NSC as a common carrier or as a pri&atecarrier! The resolution of this preliminary


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special areement and the carrier does not hold himself outto carry oods for the eneral public! The most typical,althouh not the only form of pri&ate carriae, is the charterparty, a maritime contract by which the charterer, a party

other than the shipowner, obtains the use and ser&ice of allor some part of a ship for a period of time or a &oyae or&oyaes!-if .support/ootnotes0-)*0-endif0

In the instant case, it is undisputed that VSI did not offer itsser&ices to the eneral public! $s found by the Reional TrialCourt, it carried passeners or oods only for those it choseunder a special contract of charter party! -if .support/ootnotes0-)0-endif0$scorrectly concluded by the Court of $ppeals, the MV Vlasons

Iwas not a common but a pri&ate carrier!-if .support/ootnotes0-)>0-endif0

Conse, that VSI shall not be responsible for


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losses e:cept on pro&en willful nelience of the officers ofthe &essel! The N$NGO$I Charter 1arty, which wasincorporated in the parties contract of transportation, furtherpro&ided that the shipowner shall not be liable for loss of or

damae to the caro arisin or resultin fromunseaworthiness, unless the same was caused by its lac# ofdue dilience to ma#e the &essel seaworthy or to ensure thatthe same was properly manned, e


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persons, unless the shipper committed fraud in the bill of lading,

making him to believe that the goods were of a class or quality

different from what they really were.

%ecause the MV Vlasons Iwas a pri&ate carrier, the

shipowners obliations are o&erned by the foreoinpro&isions of the Code of Commerce and not by the Ci&ilCode which, as a eneral rule, places theprima faciepresumption of nelience on a common carrier! It is ahornboo# doctrine that5In an action against a private carrier for loss of, or injury to, cargo,

the burden is on the plaintiff to prove that the carrier was negligent

or unseaworthy, and the fact that the goods were lost or damaged

while in the carriers custody does not put the burden of proof onthe carrier.

Since x x x a private carrier is not an insurer but undertakes only to

exercise due care in the protection of the goods committed to its

care, the burden of proving negligence or a breach of that duty

rests on plaintiff and proof of loss of, or damage to, cargo while in

the carriers possession does not cast on it the burden of proving

proper care and diligence on its part or that the loss occurred from

an excepted cause in the contract or bill of lading. However, indischarging the burden of proof, plaintiff is entitled to the benefit

of the presumptions and inferences by which the law aids the

bailor in an action against a bailee, and since the carrier is in a

better position to know the cause of the loss and that it was not one

involving its liability, the law requires that it come forward with

the information available to it, and its failure to do so warrants an

inference or presumption of its liability. However, such inferences

and presumptions, while they may affect the burden of coming

forward with evidence, do not alter the burden of proof which

remains on plaintiff, and, where the carrier comes forward with

evidence explaining the loss or damage, the burden of going

forward with the evidence is again on plaintiff.


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Where the action is based on the shipowners warranty of

seaworthiness, the burden of proving a breach thereof and that

such breach was the proximate cause of the damage rests on

plaintiff, and proof that the goods were lost or damaged while in

the carriers possession does not cast on it the burden of proving

seaworthiness. x x x Where the contract of carriage exempts the

carrier from liability for unseaworthiness not discoverable by due

diligence, the carrier has the preliminary burden of proving the

exercise of due diligence to make the vessel seaworthy. [if !supportFootnotes][20][endif]

In the instant case, the Court of $ppeals correctly found thatNSC has not ta#en the correct position in relation to the


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factual findins of both the trial court and the Court of$ppeals coincide, the same are bindin on this Court! -if .

support/ootnotes0-**0-endif0 @e stress that, sub=ect to some e:ceptionalinstances, -if .support/ootnotes0-*0-endif0only 0-endif0The &essels &oyae from Ilian to 2anila was the&essels first voyage after drydocking! The 1hilippine Coastuard Station in Cebu cleared it as seaworthy, fitted andequipped; it met all requirements for trading as cargo vessel!-if .support/ootnotes0-*60-endif0The Court of $ppeals itself sustained theconclusion of the trial court that MV Vlasons Iwasseaworthy! @e find no reason to modify or re&erse thisfindin of both the trial and the appellate courts!

'o ere Ne-e*& Se(me or S*eeore):$s noted earlier, the NSC had the burden of pro&in that thedamae to the caro was caused by the nelience of theofficers and the crew of MV Vlasons Iin ma#in their &essel

seaworthy and fit for the carriae of tinplates! NSC failed todischare this burden!%efore us, NSC relies hea&ily on its claim that MV Vlasons Ihad used an old and torn tarpaulin or can&as to co&er thehatches throuh which the caro was loaded into the carohold of the ship! It faults the Court of $ppeals for failin to


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consider such claim as an uncontro&erted fact -if .support/ootnotes0-*30-endif0and denies that MV Vlasons Iwas e


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$nd the rele&ant portions of Fose 1ascuas deposition are asfollows55 @hat is the purpose of the can&as co&er

$5 So that the caro would not be soa#ed with water!

$5 $nd will you describe how the can&as co&er was secured onthe hatch openin@ITNASS

$5 It was placed flat on top of the hatch co&er, with a little can&asflowin o&er the sides and we place-d0 a flat bar o&er the can&ason the side of the hatches and then we place-d0 a stopper so thatthe can&as could not be remo&ed!

$TTG DA; ROS$RIO5 $nd will you tell us the siEe of the hatch openin The lenth

and the width of the hatch openin!$5 /orty"fi&e feet by thirty"fi&e feet, sir!

: : : : : : : : :5 How was the can&as supported in the middle of the hatchopenin

$5 There is a hatch board!$TTG DA; ROS$RIO5 @hat is the hatch board made of

$5 It is made of wood, with a handle!

5 $nd aside from the hatch board, is there any other materialthere to co&er the hatch

$5 There is a beam supportin the hatch board!5 @hat is this beam made of

$5 It is made of steel, sir!5 Is the beam that was placed in the hatch openin co&erin thewhole hatch openin

$5 No, sir!5 How many hatch beams were there placed across theopenin

$5 There are fi&e beams in one hatch openin!$TTG DA; ROS$RIO5 $nd on top of the beams you said there is a hatch board! Howmany pieces of wood are put on top

$5 1lenty, sir, because there are se&eral pieces on top of the


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hatch beam!5 $nd is there a space between the hatch boards

$5 There is none, sir!5 They are tiht toether

$5 Ges, sir!5 How tiht

$5 Very tiht, sir!5 Now, on top of the hatch boards, accordin to you, is thecan&as co&er! How many can&as co&ers

$5 Two, sir! -if .support/ootnotes0-*+0-endif0

That due dilience was e:ercised by the officers and thecrew of the MV Vlasons Iwas further demonstrated by thefact that, despite encounterin rouh weather twice, the new

tarpaulin did not i&e way and the ships hatches and caroholds remained waterproof! $s aptly stated by the Court of

$ppeals, ::: we find no reason not to sustain the conclusionof the lower court based on o&erwhelmin e&idence, that the2V V;$SONS I was seaworthy when it undertoo# the&oyae on $uust 8, )+4> carryin on board thereof plaintiff"appellants shipment of ),344 s#ids of tinplates and +*pac#aes of hot rolled sheets or a total of ),43+ pac#aes

from NSCs pier in Ilian City arri&in safely at North Harbor,1ort $rea, 2anila, on $uust )*, )+4>9 :::! -if .support/ootnotes0-70-endif0

Indeed, NSC failed to dischare its burden to shownelience on the part of the officers and the crew of MVVlasons I! On the contrary, the records re&eal that it was theste&edores of NSC who were nelient in unloadin thecaro from the ship!The ste&edores employed only a tent"li#e material to co&er

the hatches when stron rains occasioned by a passintyphoon disrupted the unloadin of the caro! This tent"li#eco&erin, howe&er, was clearly inade


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5 Now, durin your testimony on No&ember 6, )+4+, you statedon $uust )> you went on board the &essel upon notice from theNational Steel Corporation in order to conduct the inspection ofthe caro! Durin the course of the in&estiation, did you chance

to see the discharin operation@ITNASS5

$5 Ges, sir, upon my arri&al at the &essel, I saw some of thetinplates already dischared on the pier but ma=ority of thetinplates were inside the hall, all the hatches were opened!5 In connection with these caroes which were unloaded,where is the place!

$5 $t the 1ier!5 @hat was used to protect the same from weather

$TTG ;O1A5@e ob=ect, your Honor, this


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5 Now, is this procedure adopted by the ste&edores of co&erintents proper

$5 No, sir, at the time they were discharin the caro, there wasa typhoon passin by and the hatch tent was not ood enouh to

hold all of it to pre&ent the water soa#in throuh the can&as andenter the caro!5 In the course of your inspection, 2r! $nlinto -sic0, did yousee in fact the water enter and soa# into the can&as andtinplates!

$5 Ges, sir, the second time I went there, I saw it!5 $s owner of the &essel, did you not ad&ise the National SteelCorporation -of0 the procedure adopted by its ste&edores indischarin the caro particularly in this tent co&erin of the

hatches$5 Ges, sir, I did the first time I saw it, I called the attention of theste&edores but the ste&edores did not mind at all, so, I called theattention of the representati&e of the National Steel but nothinwas done, =ust the same! /inally, I wrote a letter to them! -if .support/ootnotes0-)0-endif0

NSC attempts to discredit the testimony of $nlionto by


23/55

NSC which was ultimately responsible for the ste&edores ithad hired and the performance of their tas# to unload thecaro!@e see no reason to re&erse the trial and the appellate

courts findins and conclusions on this point, viz5In the THIRD assigned error, [NSC] claims that the trial court

erred in finding that the stevedores hired by NSC were negligent in

the unloading of NSCs shipment. We do not think so. Such

negligence according to the trial court is evident in the stevedores

hired by [NSC], not closing the hatch of MV VLASONS I when

rains occurred during the discharging of the cargo thus allowing

rain water and seawater spray to enter the hatches and to drift to

and fall on the cargo. It was proven that the stevedores merely setup temporary tents or canvas to cover the hatch openings when it

rained during the unloading operations so that it would be easier

for them to resume work after the rains stopped by just removing

said tents or canvass. It has also been shown that on August 20,

1974, VSI President Vicente Angliongto wrote [NSC] calling

attention to the manner the stevedores hired by [NSC] were

discharging the cargo on rainy days and the improper closing of

the hatches which allowed continuous heavy rain water to leak

through and drip to the tinplates covers and [Vicente Angliongto]

also suggesting that due to four (4) days continuos rains with

strong winds that the hatches be totally closed down and covered

with canvas and the hatch tents lowered. (Exh 13). This letter was

received by [NSC] on 22 August 1974 while discharging

operations were still going on (Exhibit 13-A). [if !supportFootnotes][33][endif]

The fact that NSC actually accepted and proceeded to

remo&e the caro from the ship durin unfa&orable weatherwill not ma#e VSI liable for any damae caused thereby! Inpassin, it may be noted that the NSC may see#indemnification, sub=ect to the laws on prescription, from theste&edorin company at fault in the dischare operations! $ste&edore company enaed in discharin caro ::: has


24/55

the duty to load the caro ::: in a prudent manner, and it isliable for in=ury to, or loss of, caro caused by its nelience::: and where the officers and members and crew of the&essel do nothin and ha&e no responsibility in the dischare

of caro by ste&edores ::: the &essel is not liable for loss of,or damae to, the caro caused by the nelience of theste&edores ::: -if .support/ootnotes0->0-endif0as in the instant case!

Do T-6(*e) S0e(*:The trial court relied on the testimony of Vicente $nliontoin findin that ::: tinplates sweat by themsel&es whenpac#ed e&en without bein in contact with water from outsideespecially when the weather is bad or rainin :::! -if .support/ootnotes0-60-endif0

The Court of $ppeals affirmed the trial courts findin!$ discussion of this issue appears inconse


25/55


26/55

effect that the &essel V;$SONS I was drydoc#ed : : : and1C Inspectors were sent on board for inspection : : :!

$fter completion of drydoc#in and duly inspected by 1CInspectors, the &essel V;$SONS I, a caro &essel, is in

seaworthy condition, meets all re


27/55

x x x If laytime is expressed in running days, this means days when

the ship would be run continuously, and holidays are not excepted.

A qualification of weather permitting excepts only those days

when bad weather reasonably prevents the work contemplated. [if !supportFootnotes][41][endif]

In this case, the contract of &oyae charter hire pro&ided fora four"day laytime9 it also *0-endif0 The runnin of laytime was thus made sub=ect tothe weather, and would cease to run in the e&entunfa&orable weather interfered with the unloadin of caro! -if .support/ootnotes0->0-endif0 Conse


28/55

not be awarded to a party for the reason alone that the=udment rendered was fa&orable to the latter, as this istantamount to imposin a premium on ones riht to litiate orsee# =udicial redress of leitimate rie&ances! -if .support/ootnotes0->60-endif0

E6-o+e$t bottom, this appeal really hines on a factual issue5 when,how and who caused the damae to the caro Ranedaainst NSC are two formidable truths! /irst, both lowercourts found that such damae was brouht about durin theunloadin process when rain and seawater seeped throuhthe caro due to the fault or nelience of the ste&edoresemployed by it! %asic is the rule that factual findins of the

trial court, when affirmed by the Court of $ppeals, arebindin on the Supreme Court! $lthouh there are settlede:ceptions, NSC has not satisfactorily shown that this caseis one of them! Second, the areement between the parties"" the Contract of Voyae Charter Hire "" placed the burdenof proof for such loss or damae upon the shipper, not uponthe shipowner! Such stipulation, while disad&antaeous toNSC, is &alid because the parties entered into a contract ofpri&ate charter, not one of common carriae! %asic too is thedoctrine that courts cannot relie&e a party from the effects ofa pri&ate contract freely entered into, on the round that it isalleedly one"sided or unfair to the plaintiff! The charter partyis a normal commercial contract and its stipulations areareed upon in consideration of many factors, not the leastof which is the transport price which is determined not onlyby the actual costs but also by the ris#s and burdensassumed by the shipper in reard to possible loss or

damae to the caro! In reconition of such factors, theparties e&en stipulated that the shipper should insure thecaro to protect itself from the ris#s it undertoo# under thecharter party! That NSC failed or nelected to protect itselfwith such insurance should not ad&ersely affect VSI, whichhad nothin to do with such failure or nelect!


29/55

!EREFORE, premises considered, the instantconsolidated petitions are hereby DANIAD! The es and crates of ti$e"ood asse67$ies and others< and

c % 7#nd$es of 6o#$dings R ? @ ( Apitong :o$idenied.


30/55

The goods, a6o#nting to P5,-5),');, "ere ins#red for the sa6e

a6o#nt "ith 9IC against !ario#s ris*s inc$#ding TOTAL LOSS

:B TOTAL LOSS OF T VSSL. The !esse$, in t#rn, "as

ins#red 7/ Pr#dentia$ 4#arantee ? Ass#rance, Inc. (hereafter

P4AI for P% 6i$$ion. On 8- No!e67er ';%, on its "a/ to 9ani$afro6 the port of Nasipit, Ag#san de$ Norte, the !esse$, a$ong "ith

its cargo, san* off Li6asa"a Is$and. As a res#$t of the tota$ $oss of

its ship6ent, the consignee 6ade a c$ai6 "ith LOADSTAR "hich,

ho"e!er, ignored the sa6e. As the ins#rer, 9IC paid P5,-)&,--- to

the ins#red in f#$$ sett$e6ent of its c$ai6, and the $atter e>ec#ted a

s#7rogation receipt therefor.

On % Fe7r#ar/ ';&, 9IC fi$ed a co6p$aint against

LOADSTAR and P4AI, a$$eging that the sin*ing of the !esse$ "asd#e to the fa#$t and neg$igence of LOADSTAR and its e6p$o/ees.

It a$so pra/ed that P4AI 7e ordered to pa/ the ins#rance proceeds

fro6 the $oss of the !esse$ direct$/ to 9IC, said a6o#nt to 7e

ded#cted fro6 9ICs c$ai6 fro6 LOADSTAR.

In its ans"er, LOADSTAR denied an/ $ia7i$it/ for the $oss of

the shippers goods and c$ai6ed that the sin*ing of its !esse$ "as

d#e toforce majeure. P4AI, on the other hand, a!erred that 9IC

had no ca#se of action against it, LOADSTAR 7eing the part/ins#red. In an/ e!ent, P4AI "as $ater dropped as a part/ defendant

after it paid the ins#rance proceeds to LOADSTAR.

As stated at the o#tset, the co#rt a quorendered E#dg6ent in

fa!or of 9IC, pro6pting LOADSTAR to e$e!ate the 6atter to the

Co#rt of Appea$s, "hich, ho"e!er, agreed "ith the tria$ co#rt and

affir6ed its decision in toto.

In dis6issing LOADSTARs appea$, the appe$$ate co#rt 6ade

the fo$$o"ing o7ser!ations+' LOADSTAR cannot 7e considered a pri!ate carrier on the so$egro#nd that there "as a sing$e shipper on that fatef#$ !o/age. The co#rt

noted that the charter of the !esse$ "as $i6ited to the ship, 7#t

LOADSTAR retained contro$ o!er its cre".0if 1s#pportFootnotes20%20endif2

8 As a co66on carrier, it is the Code of Co66erce, not the Ci!i$

Code, "hich sho#$d 7e app$ied in deter6ining the rights and $ia7i$ities


31/55

of the parties.

The !esse$ "as not sea"orth/ 7eca#se it "as #nder6anned on the

da/ of the !o/age. If it had 7een sea"orth/, it co#$d ha!e "ithstood the

nat#ra$ and ine!ita7$e action of the sea on 8- No!e67er ';%, "hen the

condition of the sea "as 6oderate. The !esse$ san*, not 7eca#se offorce majeure, 7#t 7eca#se it "as not sea"orth/. LOADSTARS

a$$egation that the sin*ing "as pro7a7$/ d#e to the con!ergence of the

"inds, as stated 7/ a PA4ASA e>pert, "as not d#$/ pro!en at the tria$.The $i6ited $ia7i$it/ r#$e, therefore, is not app$ica7$e considering that,

in this case, there "as an act#a$ finding of neg$igence on the part of the

carrier.0if 1s#pportFootnotes20&20endif2

% :et"een 9IC and LOADSTAR, the pro!isions of the :i$$ of Lading

do not app$/ 7eca#se said pro!isions 7ind on$/ the shipper=consignee

and the carrier. @hen 9IC paid the shipper for the goods ins#red, it"as s#7rogated to the $atters rights as against the carrier, LOADSTAR.0if 1s#pportFootnotes20520endif2

& There "as a c$ear 7reach of the contract of carriage "hen the

shippers goods ne!er reached their destination. LOADSTARs defense

of di$igence of a good father of a fa6i$/ in the training and se$ection of

its cre" is #na!ai$ing 7eca#se this is not a proper or co6p$ete defense

in culpa contractual.

5 Art. 5' (of the Code of Co66erce has 7een E#dicia$$/ constr#ed to

6ean that "hen goods are de$i!ered on 7oard a ship in good order andcondition, and the shipo"ner de$i!ers the6 to the shipper in 7ad orderand condition, it then de!o$!es #pon the shipo"ner to 7oth a$$ege and

pro!e that the goods "ere da6aged 7/ reason of so6e fact "hich

$ega$$/ e>e6pts hi6 fro6 $ia7i$it/. Transportation of the 6erchandise at

the ris* and !ent#re of the shipper 6eans that the $atter 7ears the ris* of

$oss or deterioration of his goods arising fro6 fort#ito#s e!ents,force

majeure, or the inherent nat#re and defects of the goods, 7#t not those

ca#sed 7/ the pres#6ed neg$igence or fa#$t of the carrier, #n$ess

other"ise pro!ed.0if 1s#pportFootnotes20)20endif2

The errors assigned 7/ LOADSTAR 7oi$ do"n to a

deter6ination of the fo$$o"ing iss#es+(' Is the 9=V Chero*ee a pri!ate or a co66on carrier

(8 Did LOADSTAR o7ser!e d#e and=or ordinar/ di$igence in thesepre6ises


32/55

Regarding the first iss#e, LOADSTAR s#76its that the !esse$

"as a pri!ate carrier 7eca#se it "as not iss#ed a certificate of

p#7$ic con!enience, it did not ha!e a reg#$ar trip or sched#$e nor a

fi>ed ro#te, and there "as on$/ one shipper, one consignee for a

specia$ cargo.In ref#tation, 9IC arg#es that the iss#e as to the c$assification

of the 9=V Chero*ee "as not ti6e$/ raised 7e$o"< hence, it is

7arred 7/ estoppe$. @hi$e it is tr#e that the !esse$ had on 7oard

on$/ the cargo of "ood prod#cts for de$i!er/ to one consignee, it

"as a$so carr/ing passengers as part of its reg#$ar 7#siness.

9oreo!er, the 7i$$s of $ading in this case 6ade no 6ention of an/

charter part/ 7#t on$/ a state6ent that the !esse$ "as a genera$

cargo carrier. Neither "as there an/ specia$ arrange6ent 7et"eenLOADSTAR and the shipper regarding the ship6ent of the cargo.

The sing#$ar fact that the !esse$ "as carr/ing a partic#$ar t/pe of

cargo for one shipper is not s#fficient to con!ert the !esse$ into a

pri!ate carrier.

As regards the second error, LOADSTAR arg#es that as a

pri!ate carrier, it cannot 7e pres#6ed to ha!e 7een neg$igent, and

the 7#rden of pro!ing other"ise de!o$!ed #pon 9IC. 0if 1s#pportFootnotes20;20endif2

LOADSTAR a$so 6aintains that the !esse$ "as sea"orth/.

:efore the fatef#$ !o/age on ' No!e67er ';%, the !esse$ "as

a$$eged$/ dr/ doc*ed at Geppe$ Phi$ippines Ship/ard and "as d#$/

inspected 7/ the 6ariti6e safet/ engineers of the Phi$ippine Coast

4#ard, "ho certified that the ship "as fit to #nderta*e a !o/age. Its

cre" at the ti6e "as e>perienced, $icensed and #nH#estiona7$/

co6petent. @ith a$$ these preca#tions, there co#$d 7e no other

conc$#sion e>cept that LOADSTAR e>ercised the di$igence of a

good father of a fa6i$/ in ens#ring the !esse$s sea"orthiness.LOADSTAR f#rther c$ai6s that it "as not responsi7$e for the

$oss of the cargo, s#ch $oss 7eing d#e toforce majeure. It points o#t

that "hen the !esse$ $eft Nasipit, Ag#san de$ Norte, on '

No!e67er ';%, the "eather "as fine #nti$ the ne>t da/ "hen the

!esse$ san* d#e to strong "a!es. 9ICs "itness, 4race$ia Tape$,


33/55

f#$$/ esta7$ished the e>istence of t"o t/phoons, @LFRIN4 and

BOLIN4, inside the Phi$ippine area of responsi7i$it/. In fact, on

8- No!e67er ';%, signa$ no. ' "as dec$ared o!er astern

Visa/as, "hich inc$#des Li6asa"a Is$and. Tape$ a$so testified that

the con!ergence of "inds 7ro#ght a7o#t 7/ these t"o t/phoonsstrengthened "ind !e$ocit/ in the area, nat#ra$$/ prod#cing strong

"a!es and "inds, in t#rn, ca#sing the !esse$ to $ist and e!ent#a$$/

sin*.

LOADSTAR goes on to arg#e that, 7eing a pri!ate carrier, an/

agree6ent $i6iting its $ia7i$it/, s#ch as "hat transpired in this case,

is !a$id. Since the cargo "as 7eing shipped at o"ners ris*,

LOADSTAR "as not $ia7$e for an/ $oss or da6age to the sa6e.

Therefore, the Co#rt of Appea$s erred in ho$ding that thepro!isions of the 7i$$s of $ading app$/ on$/ to the shipper and the

carrier, and not to the ins#rer of the goods, "hich conc$#sion r#ns

co#nter to the S#pre6e Co#rts r#$ing in the case of St. Paul Fire &

Marine Insurance Co. v. Macondray & Co., Inc.,0if 1s#pportFootnotes2020endif2

and National Union Fire Insurance Company of Pittsur! v. Stolt"

Nielsen P#ils., Inc.0if 1s#pportFootnotes20'-20endif2

Fina$$/, LOADSTAR a!ers that 9ICs c$ai6 had a$read/

prescri7ed, the case ha!ing 7een instit#ted 7e/ond the period statedin the 7i$$s of $ading for instit#ting the sa6e s#its 7ased #pon

c$ai6s arising fro6 shortage, da6age, or non3de$i!er/ of ship6ent

sha$$ 7e instit#ted "ithin si>t/ da/s fro6 the accr#a$ of the right of

action. The !esse$ san* on 8- No!e67er ';%< /et, the case for

reco!er/ "as fi$ed on$/ on % Fe7r#ar/ ';&.

9IC, on the other hand, c$ai6s that LOADSTAR "as $ia7$e,

not"ithstanding that the $oss of the cargo "as d#e to force

majeure,7eca#se the sa6e conc#rred "ith LOADSTARs fa#$t or

neg$igence.Second$/, LOADSTAR did not raise the iss#e of prescription

in the co#rt 7e$o"< hence, the sa6e 6#st 7e dee6ed "ai!ed.

Third$/, the $i6ited $ia7i$it/ theor/ is not app$ica7$e in the case

at 7ar 7eca#se LOADSTAR "as at fa#$t or neg$igent, and 7eca#se

it fai$ed to 6aintain a sea"orth/ !esse$. A#thoriing the !o/age


34/55

not"ithstanding its *no"$edge of a t/phoon is tanta6o#nt to

neg$igence.

@e find no 6erit in this petition.

Anent the first assigned error, "e ho$d that LOADSTAR is a

co66on carrier. It is not necessar/ that the carrier 7e iss#ed acertificate of p#7$ic con!enience, and this p#7$ic character is not

a$tered 7/ the fact that the carriage of the goods in H#estion "as

periodic, occasiona$, episodic or #nsched#$ed.

In s#pport of its position, LOADSTAR re$ied on the '5; case

of $ome Insurance Co. v. %merican Steams#ip %!encies, Inc.,0if 1

s#pportFootnotes20''20endif2 "here this Co#rt he$d that a co66on carrier

transporting specia$ cargo or chartering the !esse$ to a specia$

person 7eco6es a pri!ate carrier that is not s#7Eect to thepro!isions of the Ci!i$ Code. An/ stip#$ation in the charter part/

a7so$!ing the o"ner fro6 $ia7i$it/ for $oss d#e to the neg$igence of

its agent is !oid on$/ if the strict po$ic/ go!erning co66on carriers

is #phe$d. S#ch po$ic/ has no force "here the p#7$ic at $arge is not

in!o$!ed, as in the case of a ship tota$$/ chartered for the #se of a

sing$e part/. LOADSTAR a$so cited alen'uela $ard(ood and

Industrial Supply, Inc. v. Court of %ppeals0if 1s#pportFootnotes20'820endif2 and

National Steel Corp. v. Court of %ppeals,

0if 1s#pportFootnotes20'20endif2

7oth of"hich #phe$d the$ome Insurancedoctrine.

These cases in!o*ed 7/ LOADSTAR are not app$ica7$e in the

case at 7ar for si6p$e reason that the fact#a$ settings are different.

The records do not disc$ose that the 9=V Chero*ee, on the date in

H#estion, #ndertoo* to carr/ a specia$ cargo or "as chartered to a

specia$ person on$/. There "as no charter part/. The 7i$$s of $ading

fai$ed to sho" an/ specia$ arrange6ent, 7#t on$/ a genera$

pro!ision to the effect that the 9=V Chero*ee "as a !eneral car!o

carrier.0if 1s#pportFootnotes20'%20endif2F#rther, the 7are fact that the !esse$ "ascarr/ing a partic#$ar t/pe of cargo for one shipper, "hich appears

to 7e p#re$/ coincidenta$, is not reason eno#gh to con!ert the

!esse$ fro6 a co66on to a pri!ate carrier, especia$$/ "here, as in

this case, it "as sho"n that the !esse$ "as a$so carr/ing

passengers.


35/55

nder the facts and circ#6stances o7taining in this case,

LOADSTAR fits the definition of a co66on carrier #nder Artic$e

')8 of the Ci!i$ Code. In the case of )e *u'man v. Court of

%ppeals,0if 1s#pportFootnotes20'&20endif2 the Co#rt E#>taposed the stat#tor/

definition of co66on carriers "ith the pec#$iar circ#6stances ofthat case, vi'.+

The Civil Code defines common carriers in the following terms:

Article 1732. Common carriers are persons, corporations, firms or

associations engaged in the business of carrying or transporting

passengers or goods or both, by land, water, or air for

compensation, offering their services to the public.

The above article makes no distinction between one whose

principalbusiness activity is the carrying of persons or goods orboth, and one who does such carrying only as an ancillaryactivity

(in local idiom, as a sideline. Article 1732 also carefully avoids

making any distinction between a person or enterprise offering

transportation service on a regular or scheduled basisand one

offering such service on an occasional, episodic or unscheduled

basis. Neither does Article 1732 distinguish between a carrier

offering its services to the general public, i.e., the general

community or population, and one who offers services or solicits

business only from a narrow segmentof the general population.

We think that Article 1733 deliberately refrained from making

such distinctions.

> > >

It appears to the Court that private respondent is properly

characterized as a common carrier even though he merely back-

hauled goods for other merchants from Manila to Pangasinan,

although such backhauling was done on a periodic or occasional

rather than regular or scheduled manner, and even though private

respondentsprincipaloccupation was not the carriage of goods for

others. There is no dispute that private respondent charged his

customers a fee for hauling their goods; that that fee frequently fell


36/55

below commercial freight rates is not relevant here.

The Court of Appeals referred to the fact that private respondent

held no certificate of public convenience, and concluded he was

not a common carrier. This is palpable error. A certificate of public

convenience is not a requisite for the incurring of liability under

the Civil Code provisions governing common carriers. That

liability arises the moment a person or firm acts as a common

carrier, without regard to whether or not such carrier has also

complied with the requirements of the applicable regulatory statute

and implementing regulations and has been granted a certificate of

public convenience or other franchise. To exempt private

respondent from the liabilities of a common carrier because he has

not secured the necessary certificate of public convenience, would

be offensive to sound public policy; that would be to reward

private respondent precisely for failing to comply with applicable

statutory requirements. The business of a common carrier impinges

directly and intimately upon the safety and well being and property

of those members of the general community who happen to deal

with such carrier. The law imposes duties and liabilities upon

common carriers for the safety and protection of those who utilize

their services and the law cannot allow a common carrier to render

such duties and liabilities merely facultative by simply failing to

obtain the necessary permits and authorizations.

9o!ing on to the second assigned error, "e find that the 9=V

Chero*ee "as not sea"orth/ "hen it e67ar*ed on its !o/age on

' No!e67er ';%. The !esse$ "as not e!en s#fficient$/ 6anned

at the ti6e. For a !esse$ to 7e sea"orth/, it 6#st 7e adeH#ate$/

eH#ipped for the !o/age and 6anned "ith a s#fficient n#67er of

co6petent officers and cre". The fai$#re of a co66on carrier to

6aintain in sea"orth/ condition its !esse$ in!o$!ed in a contract of

carriage is a c$ear 7reach of its d#t/ prescri7ed in Artic$e ')&& of

the Ci!i$ Code.0if 1s#pportFootnotes20'520endif2

Neither do "e agree "ith LOADSTARs arg#6ent that the

$i6ited $ia7i$it/ theor/ sho#$d 7e app$ied in this case. The doctrine


37/55

of $i6ited $ia7i$it/ does not app$/ "here there "as neg$igence on

the part of the !esse$ o"ner or agent.0if 1s#pportFootnotes20')20endif2LOADSTAR

"as at fa#$t or neg$igent in not 6aintaining a sea"orth/ !esse$ and

in ha!ing a$$o"ed its !esse$ to sai$ despite *no"$edge of an

approaching t/phoon. In an/ e!ent, it did not sin* 7eca#se of an/stor6 that 6a/ 7e dee6ed asforce majeure, inas6#ch as the "ind

condition in the area "here it san* "as deter6ined to 7e 6oderate.

Since it "as re6iss in the perfor6ance of its d#ties, LOADSTAR

cannot hide 7ehind the $i6ited $ia7i$it/ doctrine to escape

responsi7i$it/ for the $oss of the !esse$ and its cargo.

LOADSTAR a$so c$ai6s that the Co#rt of Appea$s erred in

ho$ding it $ia7$e for the $oss of the goods, in #tter disregard of this

Co#rts prono#nce6ents in St. Paul Fire & Marine Ins. Co. v.Macondray & Co., Inc.,0if 1s#pportFootnotes20';20endif2 andNational Union Fire

Insurance v. Stolt"Nielsen P#ils., Inc.0if 1s#pportFootnotes20'20endif2 It "as r#$ed

in these t"o cases that after pa/ing the c$ai6 of the ins#red for

da6ages #nder the ins#rance po$ic/, the ins#rer is s#7rogated

6ere$/ to the rights of the ass#red, that is, it can reco!er on$/ the

a6o#nt that 6a/, in t#rn, 7e reco!ered 7/ the $atter. Since the right

of the ass#red in case of $oss or da6age to the goods is $i6ited or

restricted 7/ the pro!isions in the 7i$$s of $ading, a s#it 7/ theins#rer as s#7rogee is necessari$/ s#7Eect to the sa6e $i6itations

and restrictions. @e do not agree. In the first p$ace, the cases re$ied

on 7/ LOADSTAR in!o$!ed a $i6itation on the carriers $ia7i$it/ to

an a6o#nt fi>ed in the 7i$$ of $ading "hich the parties 6a/ enter

into, pro!ided that the sa6e "as free$/ and fair$/ agreed #pon

(Artic$es ')%3')&-. On the other hand, the stip#$ation in the case

at 7ar effecti!e$/ red#ces the co66on carriers $ia7i$it/ for the $oss

or destr#ction of the goods to a degree $ess than e>traordinar/

(Artic$es ')%% and ')%&, that is, the carrier is not $ia7$e for an/$oss or da6age to ship6ents 6ade at o"ners ris*. S#ch stip#$ation

is o7!io#s$/ n#$$ and !oid for 7eing contrar/ to p#7$ic po$ic/.0if 1

s#pportFootnotes208-20endif2 It has 7een said+Three kinds of stipulations have often been made in a bill of

lading. Thefirst is one exempting the carrier from any and all


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liability for loss or damage occasioned by its own negligence. The

second is one providing for an unqualified limitation of such

liability to an agreed valuation. And the thirdis one limiting the

liability of the carrier to an agreed valuation unless the shipper

declares a higher value and pays a higher rate of freight. According

to an almost uniform weight of authority, the first and second kinds

of stipulations are invalid as being contrary to public policy, but

the third is valid and enforceable.[if !supportFootnotes][21][endif]

Since the stip#$ation in H#estion is n#$$ and !oid, it fo$$o"s that

"hen 9IC paid the shipper, it "as s#7rogated to a$$ the rights

"hich the $atter has against the co66on carrier, LOADSTAR.

Neither is there 6erit to the contention that the c$ai6 in this

case "as 7arred 7/ prescription. 9ICs ca#se of action had not /etprescri7ed at the ti6e it "as concerned. Inas6#ch as neither the

Ci!i$ Code nor the Code of Co66erce states a specific prescripti!e

period on the 6atter, the Carriage of 4oods 7/ Sea Act (CO4SA

"hich pro!ides for a one3/ear period of $i6itation on c$ai6s for

$oss of, or da6age to, cargoes s#stained d#ring transit 6a/ 7e

app$ied s#pp$etori$/ to the case at 7ar. This one3/ear prescripti!e

period a$so app$ies to the ins#rer of the good.0if 1s#pportFootnotes208820endif2 In

this case, the period for fi$ing the action for reco!er/ has not /ete$apsed. 9oreo!er, a stip#$ation red#cing the one3/ear period is

n#$$ and !oid


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&s!COURT OF APPEALS ( EASTERN S!IPPING LINES, INC.,respondents!=APUNAN, J.%pAastern Shippin ;ines, Inc! 'AS;I( loaded on board SS AasternA:plorer in Jobe, Fapan, the followin shipment for carriae to 2anilaand Cebu, freiht pre"paid and in ood order and condition, viz5 'a(two '*( bo:es internal combustion enine parts, consined to @illiam;ines, Inc! under %ill of ;adin No! 7>**89 'b( ten 'l7( metric ton!'> bas( ammonium chloride, consined to OrcaKs Company under%ill of ;adin No! JCA"I*9 'c( two hundred '*77( bas lue 77,consined to 1an Oriental 2atch Company under %ill of ;adin No!JCA"89 and 'd( arments, consined to Din Velayo under %ills of

;adin Nos! J2$"4 and J2$"4>!@hile the &essel was off O#inawa, Fapan, a small flame was detectedon the acetylene cylinder located in the accommodation area near theenine room on the main dec# le&el! $s the crew was tryin toe:tinuish the fire, the acetylene cylinder suddenly e:ploded sendina flash of flame throuhout the accommodation area, thus causindeath and se&ere in=uries to the crew and instantly settin fire to thewhole superstructure of the &essel! The incident forced the masterand the crew to abandon the ship!Thereafter, SS Aastern A:plorer was found to be a constructi&e totalloss and its &oyae was declared abandoned!Se&eral hours later, a tuboat under the control of /u#uda Sal&aeCo! arri&ed near the &essel and commenced to tow the &essel for theport of Naha, Fapan!/ire fihtin operations were aain conducted at the said port! $fterthe fire was e:tinuished, the caroes which were sa&ed were loadedto another &essel for deli&ery to their oriinal ports of destination!AS;I chared the consinees se&eral amounts correspondin toadditional freiht and sal&ae chares, as follows5 'a( for the oods

co&ered by %ill of ;adin No! 7>**8, AS;I chared the consineethe sum of 1),+*4!36, representin sal&ae chares assessedaainst the oods9 'b( for the oods co&ered by %ill of ;adin No!JCA")*, AS;I chared the consinee the sum of 1*,+87!3> foradditional freiht and 18*3!)> for sal&ae chares aainst the oods9'c( for the oods co&ered by %ill of ;adin No! JCA"8, AS;I charedthe consinee the sum of 1,*+*!*3 for additional freiht and


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1>,)7!38 for sal&ae chares aainst the oods9 and'd( for the oods under %ills of ;adin Nos! J2$"4 and J2$"4>,AS;I chared the consinee the sum of 18,4!73 for sal&aechares aainst the oods!The chares were all paid by 1hilippine Home $ssurance Corporation'1H$C( under protest for and in behalf of the consinees!1H$C, as subroee of the consinees, thereafter filed a complaintbefore the Reional Trial Court of 2anila, %ranch +, aainst AS;I toreco&er the sum paid under protest on the round that the same wereactually damaes directly brouht about by the fault, nelience,illeal act andBor breach of contract of AS;I!In its answer, AS;I contended that it e:ercised the dilience re


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$ct No! *3)3, otherwise #nown as the Sal&ae ;aw, is thusapplicable to the case at bar! Section ) of $ct No! *3)3 states5Sec )! @hen in case of shipwrec#, the &essel or its caro shall bebeyond the control of the crew, or shall ha&e been abandoned bythem, and pic#ed up and con&eyed to a safe place by other persons,the latter shall be entitled to a reward for the sal&ae!Those who, not bein included in the abo&e pararaph, assist insa&in a &essel or its caro from shipwrec#, shall be entitled to li#ereward!In relation to the abo&e pro&ision, the Supreme Court has ruled inArlaner M aliner &! Swedish Aast $siatic Co!, ;td!, > 1hil! )48,that three elements are necessary to a &alid sal&ae claim, namely'a(a marine peril 'b( ser&ice &oluntarily rendered when not re* 1hil! *)(! '2emorandum for Defendant, Records, pp! *)*"*)(!@ith respect to the additional freiht chared by defendant from theconsinees of the oods, the same are also &alidly demandable!

$s pro&ided by the Ci&il Code5$rt! ))4>! A:cept in cases e:pressly specified by law, or when it is

otherwise declared by stipulation, or when the nature of the obliationre


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The burnin of LA$STARN A1;ORARL while off O#inawa renderedit physically impossible for defendant to comply with its obliation ofdeli&erin the oods to their port of destination pursuant to thecontract of carriae! ?nder $rticle )*33 of the Ci&il Code, the physicalimpossibility of the prestation e:tinuished defendantKs obliation!!It is but leal and e> of the Codeof Commerce which pro&ides as follows5

$rt! 8>>! $ captain who may ha&e ta#en on board the oods sa&edfrom the wrec# shall continue his course to the port of destination9and on arri&al should deposit the same, with =udicial inter&ention atthe disposal of their leitimate owners! ! ! !

The owners of the caro shall defray all the e:penses of this arri&alas well as the payment of the freiht which, after ta#in intoconsideration the circumstances of the case, may be fi:ed byareement or by a =udicial decision!/urthermore, the terms and conditions of the %ill of ;adin authoriEethe imposition of additional freiht chares in case of forcedinterruption or abandonment of the &oyae! $t the dorsal portion ofthe %ills of ;adin issued to the consinees is this stipulation5)*! $ll storae, transshipment, forwardin or other disposition ofcaro at or from a port of distress or other place where there hasbeen a forced interruption or abandonment of the &oyae shall be atthe e:pense of the owner, shipper, consinee of the oods or theholder of this bill of ladin who shall be =ointly and se&erally liable forall freiht chares and e:penses of e&ery #ind whatsoe&er, whetherpayable in ad&ance or not that may be incurred by the caro inaddition to the ordinary freiht, whether the ser&ice be performed bythe named carryin &essel or by carrierKs other &essels or bystraners! $ll such e:penses and chares shall be due and payableday by day immediately when they are incurred!

The bill of ladin is a contract and the parties are bound by its terms'o&Kt of the 1hilippine Islands &s! Gnchausti and Co!, >7 1hil! *)+(!The pro&ision


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On appeal to the Court of $ppeals, respondent court affirmed the trial

courtKs findins and conclusions, "hence, the present petitionfor re&iew before this Court on the followin errors5I! THA RAS1ONDANT CO?RT ARRONAO?S;G $DO1TAD @ITH

$11ROV$; THA TRI$; CO?RTKS /INDINS TH$T THA %?RNINO/ THA SS LA$STARN A1;ORARL, RANDARIN AT $CONSTR?CTIVA TOT$; ;OSS, IS $ N$T?R$; DIS$STAR ORC$;$2ITG @HICH NO%ODG @O?;D ;IJA TO H$11AN, DAS1ITAAISTIN F?RIS1R?DANCA TO THA CONTR$RG!II! THA RAS1ONDANT CO?RT $R%ITR$RI;G R?;AD TH$T THA%?RNIN O/ THA SS LA$STARN A1;ORARL @$S NOT THA/$?;T $ND NA;IANCA O/ RAS1ONDANT A$STARNSHI11IN ;INAS!

III! THA RAS1ONDANT CO?RT CO22ITTAD R$VA $%?SA O/DISCRATION IN R?;IN TH$T DA/AND$NT H$D AARCISADTHA ATR$ORDIN$RG DI;IANCA IN THA VII;$NCA OVARTHA OODS $S RA?IRAD %G ;$@!IV! THA RAS1ONDANT CO?RT $R%ITR$RI;G R?;AD TH$T THA2$RINA NOTA O/ 1ROTAST $ND ST$TA2ANT O/ /$CTSISS?AD %G THA VASSA;KS 2$STAR $RA NOT HA$RS$GDAS1ITA THA /$CT TH$T THA VASSA;KS 2$STAR, C$1T!;IC$G;IC$G @$S NOT 1RASANTAD CO?RT, @ITHO?TA1;$N$TION @H$TSOAVAR /OR HIS NON"1RASANT$TION,

TH?S, 1ATITIONAR @$S DA1RIVAD O/ ITS RIHT TO CROSS"A$2INA THA $?THOR THARAO/!V! THA RAS1ONDANT CO?RT ARRONAO?S;G $DO1TAD @ITH

$11ROV$; THA TRI$; CO?RTKS CONC;?SION TH$T THAA1ANSAS OR $VAR$AS INC?RRAD IN S$VIN THA C$ROCONSTIT?TA ANAR$; $VAR$A!VI! THA RAS1ONDANT CO?RT ARRONAO?S;G $DO1TAD THATRI$; CO?RTKS R?;IN TH$T 1ATITIONAR @$S ;I$%;A TORAS1ONDANT C$RRIAR /OR $DDITION$; /RAIHT $ND

S$;V$A CH$RAS!>

It is


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conclusion is a findin rounded entirely on speculation, surmises orcon=ectures9 'b( when the inference made is manifestly mista#en,absurd or impossible9 'c( where there is a ra&e abuse of discretion9'd( when the =udment is based on a misapprehension of facts9 'e(when the findins of fact are conflictin9 'f( when the Court of

$ppeals, in ma#in its findins, went beyond the issues of the caseand the same is contrary to the admissions of both appellant andappellee9 '( when the findins of the Court of $ppeals are contrary tothose of the trial court9 'h( when the findins of fact are conclusionswithout citation of specific e&idence on which they are based9'i( when the facts set forth in the petition as well as in the petitionersKmain and reply briefs are not disputed by the respondents9 and '=(when the findin of fact of the Court of $ppeals is premised on thesupposed absence of e&idence and is contradicted by the e&idence

on record! #Thus, if there is a showin, as in the instantcase, that the findins complained of are totallyde&oid of support in the records, or that they are solarinly erroneous as to constitute ra&e abuse ofdiscretion, the same may be properly re&iewed ande&aluated by this Court!It is worthy to note at the outset that the oods sub=ect of the presentcontro&ersy were neither lost nor damaed in transit by the fire that

raEed the carrier! In fact, the said oods were all deli&ered to theconsinees, e&en if the transshipment too# loner than necessary!@hat is at issue therefore is not whether or not the carrier is liable forthe loss, damae, or deterioration of the oods transported by thembut who, amon the carrier, consinee or insurer of the oods, isliable for the additional chares or e:penses incurred by the owner ofthe ship in the sal&ae operations and in the transshipment of theoods &ia a different carrier!In absol&in respondent carrier of any liability, respondent Court of

$ppeals sustained the trial courtKs findin that the fire that utted theship was a natural disaster or calamity! 1etitioner ta#es e:ception tothis conclusion and we aree!In our =urisprudence, fire may not be considered a natural disaster orcalamity since it almost always arises from some act of man or byhuman means!It cannot be an act of od unless caused by lihtnin or a natural


45/55

disaster or casualty not attributable to human aency! ;

In the case at bar, it is not disputed that a small flame was detectedon the acetylene cylinder and that by reason thereof, the samee:ploded despite efforts to e:tinuish the fire! Neither is there anydoubt that the acetylene cylinder, ob&iously fully loaded, was stored inthe accommodation area near the enine room and not in a storaearea considerably far, and in a safe distance, from the enine room!2oreo&er, there was no showin, and none was alleed by theparties, that the fire was caused by a natural disaster or calamity notattributable to human aency! On the contrary, there is strone&idence indicatin that the acetylene cylinder cauht fire because ofthe fault and nelience of respondent AS;I, its captain and its crew!/irst, the acetylene cylinder which was fully loaded should not ha&ebeen stored in the accommodation area near the enine room where

the heat enerated therefrom could cause the acetylene cylinder toe:plode by reason of spontaneous combustion! Respondent AS;Ishould ha&e easily foreseen that the acetylene cylinder, containinhihly inflammable material was in real daner of e:plodin becauseit was stored in close pro:imity to the enine room!Second, respondent AS;I should ha&e #nown that by storin theacetylene cylinder in the accommodation area supposed to bereser&ed for passeners, it unnecessarily e:posed its passeners tora&e daner and in=ury! Curious passeners, inorant of the danerthe tan# miht ha&e on humans and property, could ha&e handled thesame or could ha&e lihted and smo#ed ciarettes while repairin inthe accommodation area!Third, the fact that the acetylene cylinder was chec#ed, tested ande:amined and subse


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respondent court erroneously areed that the fire was not the fault ornelience of respondent but a natural disaster or calamity! Therecords are simply wantin in this reard!

$nent petitionerKs ob=ection to the admissibility of A:hibits L>KK and KK6L,the Statement of /acts and the 2arine Note of 1rotest issued byCaptain Tiburcio $! ;icaylicay, we find the same impressed with meritbecause said documents are hearsay e&idence! Capt! ;icaylicay,2aster of S!S! Aastern A:plorer who issued the said documents, wasnot presented in court to testify to the truth of the facts he statedtherein9 instead, respondent AS;I presented Funpei 2aeda, its%ranch 2anaer in To#yo and Go#ohama, Fapan, who e&idently hadno personal #nowlede of the facts stated in the documents at issue!It is clear from Section 3, Rule )7 of the Rules of Court that anye&idence, whether oral or documentary, is hearsay if its probati&e

&alue is not based on the personal #nowlede of the witness but onthe #nowlede of some other person not on the witness stand!Conse


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time of the occurrence of the a&erae turns to nauht!1rescindin from the foreoin premises, it indubitably follows thatthe caro consinees cannot be made liable to respondent carrier foradditional freiht and sal&ae chares! Conse! #ollo, pp! *+"+!> Id!, at )*")!6 eronimo &! Court of $ppeals, **> SCR$ >+>, >+8">++ ')++09 %1I

Credit Corporation &! Court of $ppeals, *7> SCR$ 37), 378"37+-)++)09 2edina &! $sistio, Fr!, )+) SCR$ *)8, **"**> -)++70!3 Aastern Shippin ;ines, Inc! &! Intermediate $ppellate Court )67SCR$ >3 -)+8409 $frica &! Calte:, )3 SCR$ >>8 -)+3309 $ee also >

$bayani, Commentaries and Furisprudence on the Commercial;aws of the 1hilippines, )++ Adition, p! >>!4 Oriinal Records, p! )4)!


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8 %auio &! Court of $ppeals, **3 SCR$ 33, 47 -)++0!+ $rt 8)), Code of Commerce!)7 $rt 8)! In order to incur the e:penses and cause the damaescorrespondin to ross a&erae, there must be a resolution of thecaptain, adopted after deliberation with the sailin mate and otherofficers of the &essel, and after hearin the persons interested in thecaro who may be present!If the latter shall ob=ect, and the captain and officers or a ma=ority ofthem, or the captain, if opposed to the ma=ority, should considercertain measures necessary they may be e:ecuted under hisresponsibility, without pre=udice to the riht of the shippers to proceedaainst the captain before the competent =ude or court, if they canpro&e that he acted with malice, lac# of s#ill, or nelience!If the persons interested in the caro, bein on board the &essel,

ha&e not been heard, they shall not contribute to the ross a&erae,their share bein chareable aainst the captain, unless the urencyof the case should be such that the time necessary for pre&iousdeliberations was wantin!)) $rt 8)>! The resolution adopted to cause the damaes whichconstitute eneral a&erae must necessarily be entered in the loboo#, statin the moti&es and reasons for the dissent, should there beany, and the irresistible and urent causes which impelled the captainif he acted of his own accord!In the first case the minutes shall be sined by all the personspresent who could do so before ta#in action, if possible9 and if not,at the first opportunity! In the second case, it shall be sined by thecaptain and by the officers of the &essel!In the minutes, and after the resolution, shall be stated in detail all theoods =ettisoned, and mention shall be made of the in=uries caused tothose #ept on board! The captain shall be oblied to deli&er one copyof these minutes to the maritime =udicial authority of the first port hemay ma#e, within twenty"four hours after his arri&al, and to ratify itimmediately under oath!

Republic of the 1hilippinesSUPRE4E COURT

2anilaAN %$NCG.R. No. L?2"7"" Oc*ober "1, 19;9!ER4INIO L. NOCU4,plaintiff"appellee,


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&s!LAGUNA TA@A%AS %US CO4PAN@,defendant"appellant!%ernando M. Mangu&at and %elimon !. Mendoza for plaintiff'appellee. (omingo ). de *ara and +ssociates for defendant'appellant.%ARREDO, J.%

$ppeal of the ;auna Tayabas %us Co!, defendant in the Courtbelow, from a =udment of the said court 'Court of /irst Instance of%atanas( in its Ci&il Case No! 8>, wherein appellee Herminio ;!Nocum was plaintiff, sentencin appellant to pay appellee the sum of1),6)!77 for actual damaes and 1677!77 as attorneyKs fees withleal interest from the filin of the complaint plus costs! $ppellee, whowas a passener in appellantKs %us No! )*7 then ma#in a trip withinthe barrio of Dita, 2unicipality of %ay, ;auna, was in=ured as a

conse


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$RT! )4! Common carriers, from the nature of their business andfor reasons of public policy, are bound to obser&e e:traordinarydilience in the &iilance o&er the oods and for the safety of thepasseners transported by them, accordin to all the circumstancesof each case!Such e:traordinary dilience in the &iilance o&er the oods is furthere:pressed in articles )4>, )46, and )4>6, Nos! 6, 3, and 4, whilethe e:traordinary dilience for the safety of the passeners is furtherset forth in articles )466 and )463!

$RT! )466! $ common carrier is bound to carry the passeners safelyas far as human care and foresiht can pro&ide, usin the utmostdilience of &ery cautious persons, with a due reard for all thecircumstances!

$RT )463! In case of death of or in=uries to passeners, common

carriers are presumed to ha&e been at fault or to ha&e actedneliently, unless they pro&e that they obser&ed e:traordinarydilience as prescribed in articles )4 and )466!

$nalyEin the e&idence presented by the parties, His Honor found5$ccordin to Se&erino $ndaya, a witness for the plaintiff, a man witha bo: went up the baae compartment of the bus where he alreadywas and said bo: was placed under the seat! They left $Ecarraa atabout ))57 in the mornin and when the e:plosion occurred, he wasthrown out! 1C in&estiation report states that thirty se&en '4(passeners were in=ured 'A:hibits LOL and L*L(!The bus conductor, Sancho 2endoEa, testified that the bo: belonedto a passener whose name he does not #now and who told him thatit contained miscellaneous items and clothes! He helped the owner inloadin the baae which weihed about twel&e ')*( #ilos andbecause of company reulation, he chared him for it twenty"fi&ecenta&os '17!*6(! /rom its appearance there was no indication at allthat the contents were e:plosi&es or firecrac#ers! Neither did he openthe bo: because he =ust relied on the word of the owner!Dispatcher Nicolas Cornista of defendant company corroborrated the

testimony of 2endoEa and he said, amon other thins, that he waspresent when the bo: was loaded in the truc# and the owner areedto pay its fare! He added that they were not authoriEed to open thebaaes of passeners because instruction from the manaementwas to call the police if there were pac#aes containin articles whichwere aainst reulations!::: ::: :::


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There is no 6 1hil! 364,


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creatin a presumption of nelience aainst them, the rec#lessnessof their dri&ers which is a common siht e&en in crowded areas and,particularly, on the hihways throuhout the country may, somehow, ifnot in a lare measure, be curbed! @e are not con&inced, howe&er,that the e:actin criterion of said pro&isions has not been met byappellant in the circumstances of this particular case!It is undisputed that before the bo: containin the firecrac#ers wereallowed to be loaded in the bus by the conductor, in


53/55

outwardly perceptible, but beyond this, constitutional boundaries arealready in daner of bein transressed! Callin a policeman to hisaid, as suested by the ser&ice manual in&o#ed by the trial =ude, incompellin the passener to submit to more riid inspection, after thepassener had already declared that the bo: contained mere clothesand other miscellaneous, could not ha&e =ustified in&asion of aconstitutionally protected domain! 1olice officers actin without

=udicial authority secured in the manner pro&ided by law are notbeyond the pale of constitutional inhibitions desined to protectindi&idual human rihts and liberties! @ithal, what must beimportantly considered here is not so much the infrinement of thefundamental sacred rihts of the particular passener hereinin&ol&ed, but the constant threat any contrary rulin would pose onthe riht of pri&acy of all passeners of all common carriers,

considerin how easily the duty to inspect can be made an e:cuse formischief and abuse! Of course, when there are sufficient indicationsthat the representations of the passener reardin the nature of hisbaae may not be true, in the interest of the common safety of all,the assistance of the police authorities may be solicited, notnecessarily to force the passener to open his baae, but toconduct the needed in&estiation consistent with the rules of proprietyand, abo&e all, the constitutional rihts of the passener! It is in thissense that the mentioned ser&ice manual issued by appellant to itsconductors must be understood!Decisions in other =urisdictions cited by appellant in its brief, e&identlybecause of the paucity of local precedents s+ S!@! ))*7! Inthat case Clar#e was a passener on the defendantKs train! $notherpassener too# a quantity of gasoline into the same coach in whichClar#e was ridin! It inited and e:ploded, by reason of which he wasse&erely in=ured! The trial court peremptorily instructed the =ury to findfor the defendant! In the opinion, affirmin the =udment, it is said5 LIt


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may be stated briefly, in assumin the liability of a railroad to itspasseners for in=ury done by another passener, only where theconduct of this passener had been such before the in=ury as toinduce a reasonably prudent and &iilant conductor to belie&e thatthere was reasonable round to apprehend &iolence and daner tothe other passeners, and in that case assertin it to be the duty ofthe conductor of the railroad train to use all reasonable means topre&ent such in=ury, and if he nelects this reasonable duty, and in=uryis done, that then the company is responsible9 that otherwise therailroad is not responsible!LThe opinion > Jy! 3>+, )+ S! @! 866, 3;! R! $!-N! S!0 49 Clar#e &! ;ouis&ille M N! R! Co! )7) Jy! >, + S!@! 8>7, 3 ;! R! $! )* -e:plosion of can of asoline09 Aast Indian R!


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Co! &! 2u#er=ee -)+7)0 $! C! -An!0 +3, %! R! C! >*7 1! C!-e:plosion of firewor#s09 $nnotation5 4 ;! R! $! -N! S!0 4*6!(

$ppellant further in&o#es $rticle ))4> of the Ci&il Code which relie&esall obliors, includin, of course, common carriers li#e appellant, fromthe conse

transpo finals.digest3

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