Professional Documents
Culture Documents
April Lynn L. Ursal: Case: Jose Mendoza vs. Philippine Airlines Inc
April Lynn L. Ursal: Case: Jose Mendoza vs. Philippine Airlines Inc
Page 1
Contract of Affreightment
involves the use of shipping space on vessels
leased by the owner in part or as a whole, to
carry goods for another
CC = observe extraordinary diligence; in case
of loss, deterioration or destruction of goods of
goods, CCs are presumed to be at fault or
have acted negligently
2 types
i. Time charter: vessel is leased to the
charterer for a fixed period of time
ii. Voyage charter: ship is leased for a
single voyage
2.
Law applicable
o
Common Civil Code
o
Private contract
Diligence required
o
Common extraordinary diligence
o
Private diligence of a good father of a family
Page 2
COMMON CARRIERS
STEVEDORING
vs.
TOWAGE,
ARRASTRE
AND
Towage
A vessel is hired to bring another vessel to another
place
e.g. a tugboat may be hired by CC to bring the vessel
to a port (operator of tugboat not CC)
in maritime law: towing for the mere purpose of
expediting her voyage without reference to any
circumstances of danger
Arrastre
Arrastre operators functions has nothing to do with
the trade and business of navigation nor to the use or
operation of vessels
Services are not maritime
Functions of arrastre operator:
o
Receive, handle, care for, and deliver all
merchandise imported and exported, upon or
passing over Government-owned wharves and
piers in the port
o
Record or check all merchandise which may
be delivered to said port ant shipside
o
Furnish light, and water services and other
incidental service in order to undertake its
arrastre service
Such service is in face, no different from those of a
depositary or warehouseman
Stevedoring
involves the loading and unloading of coastwise
vessels calling at the port.
>>> Common carriers are public utilities, impressed with public
interest and concern subject to regulation by the state.
GOVERNING LAWS
read summary of rules on page 40 of book
Article 1766 (Civil Code). In all matters not regulated
by this Code, the rights and obligations of common
carriers shall be governed by the Code of Commerce and
by special laws.
NATURE OF BUSINESS
Common Carriers exercise a sort of public office
Consequently, common carriers are subject
regulation by the State
to
DUTY TO ACCEPT
A common carrier granted a certificate of
public convenience is duty bound to accept passengers
or cargo without any discrimination.
It is illegal for domestic ship operators to
refuse to accept or carry passengers or cargo without
just cause. (Section 16, RA 9295)
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virtue
of
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of passage, but his living expenses during the stay shall be for
his own account.
Note: the carrier is liable for any loss or damage, including any
pecuniary loss or loss of profit, which the passenger may have
suffered by reason thereof.
In case the vessel is not able to depart on time and the delay is
unreasonable, the passenger may opt to have his/her ticket
immediately refunded without any refund service fee from the
authorized issuing/ticketing office.
Where and to Whom Delivered
a. Place Goods should be delivered to the consignee in
the place agreed upon by the parties.
The shipper may change the consignment of the goods provided
that at the time of ordering the change of the consignee the bill
of lading signed by the carrier be returned to him, in exchange
for another wherein the novation of the contract appears. The
expenses occasioned by the change shall be for the account of
the shipper.
b.
c.
Cause
there is
presumption
of
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4.
2.
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IMPROPER PACKING
Character of the goods and defects in the packaging or in the
containers are defenses available to the common carrier.
Similarly, the Carriage of Good by Sea Act provides that carrier
shall not liable for:
1. Wastage in bulk or weight or any damages arising form
the inherent defect, quality or vice of goods;
2. Insufficiency of packing;
3. Insufficiency or inadequacy of the marks, or
4. Latent defects no discoverable by due diligence.
However, NCC likewise provides:
Art. 1742. Even if the loss, destruction, or deterioration
of the goods should be caused by the character of the
goods, or the faulty nature of the packing or the
containers, the common carrier must exercise due
diligence to forestall or lessen the loss.
Thus, if the carrier accepted the goods knowing the fact of
improper packing or even if the carrier does not know
but the defect was nonetheless apparent upon ordinary
observation, it is not relived from liability for loss or injury to
goods resulting therefrom.
Cases:
Page 7
1.
2.
Employees
Carrier is liable for the acts of its employees. It cant
escape liability by claiming that it exercised due
diligence in supervision and selection of its employees
(unlike in quasi-delicts).
2.
3.
b.
PASSENGERS BAGGAGES
The term baggage has been defined to include whatever
articles a passenger usually takes with him for his own
personal use, comfort and convenience
Rules that are applicable to goods that are being shipped
are also applicable to baggage delivered to the custody of
the carrier. Arts. 1733. 1734 and 1736 of Civil Code are
applicable.
However, if the luggage was hand-carried, Arts. 1998,
2000-2003 shall apply.
Distinction: W/N the baggage is in the personal custody of the
passenger.
if yes, hand carried baggage
if no, checked-in baggage
Art. 1998. The deposit of effects made by the travellers
in hotels or inns shall also be regarded as necessary. The
keepers of hotels or inns shall be responsible for them as
depositaries, provided that notice was given to them, or
to their employees, of the effects brought by the guests
and that, on the part of the latter, they take the
precautions which said hotel-keepers or their substitutes
advised relative to the care and vigilance of their effects.
(1783)
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2.
Despite the fact that the carrier gave notice that it shall
not be liable for baggage brought in by passengers, the
carrier is still liable for lost hand-carried luggage since
it is governed by rules on necessary deposits. Under
Art. 20000, the responsibility of the depositary includes
the loss of property of the guest caused by strangers
but not that which may proceed from force majeure.
Moreover, article 2001 considers theft as force majeure
if it is done with use of arms or through irresistible
force.
Even if the passenger did not declare his baggage nor
pay its charges contrary to the regulations of the bus
company, the carrier is still liable in case of loss of the
baggage. Since, it has the duty to exercise
extraordinary diligence over the baggage that was
turned over to the carrier or placed in the baggage
compartment of the bus. The non-payment of the
charges is immaterial as long as the baggage was
received by the carrier for transportation.
II.
OBLIGATIONS
PASSENGER
OF
SHIPPER,
CONSIGNEE
and
A.
The carrier may be able to prove that the only cause of the
loss of the goods is any of the following:
1. Failure of the shipper to disclose the nature of the
goods;
2. Improper marking or direction as to the destination;
3.
Assumption of Risk
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FREIGHT
a.
Amount to be Paid
Time to pay
Page 10
A. GOODS
The parties cannot stipulate that the carrier will NOT
exercise ANY diligence in the custody of goods
The law allows a stipulation whereby the carrier will
exercise a degree of diligence which is less than
extraordinary with respect to goods.
Art. 1744. A stipulation between the common carrier
and the shipper owner limiting the liability of the
former for the loss, destruction, or deterioration of the
goods to a degree less than extraordinary diligence
shall be valid, provided it be:
1. In writing, signed by the shipper/owner;
2. Supported by a valuable consideration other than
the service rendered by the common carrier (Note:
Typically fare/freight); and
3. Reasonable, just and contrary to public policy.
B. PASSENGERS
There can be no stipulation lessening the utmost
diligence that is owed to passengers.
Art. 1757. The responsibility of a common carrier for
the safety of passengers as required in Arts. 1733 and
1755 cannot be dispensed with or lessened by
stipulation, by the posting of notices, by statements on
tickets, or otherwise. (Note: Absolute; extraordinary at
all times.)
Gratuitous passenger A stipulation limiting the common
carriers liability for negligence is valid, but not for willful acts of
gross negligence. The reduction of fare does not justify any
limitation.
Case: Lara vs. Valencia
Diligence owed to accommodation passengers is only
ordinary diligence
However, this case is not controlling with respect to
common carriers because the defendant in the said
case was not a common carrier
IV. EXTRAORDINARY DILIGENCE IN CARRIAGE BY SEA
A. SEAWORTHINESS
a.
b.
c.
Example: The carrier was able to establish that the ship itself
was seaworthy because the records reveal that the vessel was
dry-docked and inspected by the Phil. Coast Guard before its
first destination.
A warranty of seaworthiness requires that it be properly laden,
and provided with a competent master, a sufficient number of
competent
officers
and
seamen,
and
the
requisite
appurtenances and equipment.
The carrier shall be bound before and at the beginning of the
voyage to exercise due diligence to:
1. Make the ship seaworthy;
2. Properly man, equip, and supply the ship;
3. Make all parts of the ship in which goods are carried,
fit and safe for their reception, carriage, and
preservation.
The carrier shall properly and carefully load, handle, stow, carry,
keep, care for, and discharge the goods carried.
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C. PROPER STORAGE
-
The vessel itself may be suitable for the cargo but this
is not enough because the cargo must also be properly
stored.
Deviation
If there is an agreement between the shipper and the
carrier as to the road over which the conveyance is to
be made (subject to the approval by the Maritime
Industry Authority), the carrier may not change the
route, unless it be by reason of force majeure. Without
this cause, he shall be liable for all the losses which the
goods may suffer, aside from paying the sum stipulated
for that case.
When on account of the force majeure, the carrier had
to take another route which resulted to an increase in
transportation charges, he shall be reimbursed upon
formal proof.
Transshipment
The act of taking cargo out of one ship and loading it
into another; to transfer goods from the vessel
stipulated in the contract of affreightment to another
vessel before the place of destination named in the
contract has been reached.
Transshipment of freight without legal excuse is a
violation of the contract and subjects the carrier to
liability if the freight is lost even by a cause otherwise
excepted.
A. CONDITION OF VEHICLE
Common carriers that offer transportation by land are
similarly required to make sure that the vehicles that
they are using are in good order and condition.
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CHAPTER 4
BILL OF LADING
2. Foul Bill of
Lading
3. Spent Bill
of Lading
4. Through
Bill of Lading
5. On Board
Bill
6. Received
for
Shipment Bill
7.
Custody
Bill of Lading
8. Port Bill of
Lading
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I. RECEIPT
As comprehending all methods
of transportation, a
BOL may be defined as a written acknowledgement of
the receipt of goods and an agreement to transport and
to deliver them at a specified place to a person named
or on his order.
Other terms, shipping receipts, forwarders receipts,
and receipts for transportation.
(SC) the designation however is not material, and
neither is the form of the instrument. If it contains an
acknowledgement by the carrier of the receipt of goods
for transportation it is, in legal effect a BOL.
The issuance of a bill of lading carries the presumption
that the goods were delivered to the carrier issuing the
bill, for immediate shipment, and it is nowhere
questioned that a bill of lading is prima facie evidence
of the receipt of the goods by the carrier
II. CONTRACT
It expresses the terms and conditions of the agreement
between the parties; names the parties; includes
consignees etc. It is the law between the parties bound
by its terms and conditions.
Contracts of Adhesion
It is to be construed liberally in favor of the shipper who
adhered to such bill as it is a contract of adhesion. The
only participation of the party is the signing of his
signature or his adhesion thereto.
The shipper or passenger is bound by the terms and
conditions if there is no occasion to speak of
ambiguities or obscurities
If the words appear to be contrary to the evident
intention of the parties, the latter shall prevail over the
former
1.
3.
BASIC STIPULATIONS
Provided for in the Code of Commerce
2.
4.
Exempting the carrier from any and all liability for loss
or damage occasioned by its own negligence - INVALID
as it is contrary to public policy.
Parties may stipulate that the diligence to be exercised
by the carrier for the carriage of goods be less than
extraordinary diligence if it is:
a. in writing and signed by both parties
b. supported by a valuable consideration other
than the service rendered by the common
carrier
c.
the stipulation is just, reasonable and not
contrary to law.
Providing an unqualified limitation of such liability to an
agreed valuation - INVALID
Limiting the liability of the carrier to an agreed
valuation unless the shipper declares a higher value
and pays a higher rate of freight- VALID and
ENFORCEABLE.
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Page 15
c.
Page 16
A. Negotiability
- It is negotiable if it is deliverable to the bearer, or to the order
of any person named in such document. (Art. 1507, Civil Code)
a) Effect of Stamp or Notation Non-Negotiable
C. Effects of Negotiation
- has the effect of manual delivery so as to constitute the
transferee the owner of the goods
- results in the transfer of ownership because transfer of
document likewise transfers control over the goods
- refer to Art. 1513
Chapter 5
Actions and Damages in Case of Breach
Cause of action of a passenger and shipper:
a) against common carrier based on culpa contractual or
culpa aquiliana
b) on the part of the driver based on either culpa delictual or
culpa aquiliana
2.
Page 17
b) Extinctive Prescription
six (6) years if there is no written contract (bill of
lading)
ten (10) years if there is written contract
This rule likewise applies to carriage of passengers for
domestic transportation.
a) Prescription
Action for damages must be filed within a period of one (1)
year from discharge of the goods.
The period is not suspended by an extra-judicial demand.
(Why? Transportation of goods by sea should be decided
in as short a time as possible)
o
Case: Dole Philippines Inc. vs. Maritime
Company of the Philippines - the prescriptive
period is not tolled or interrupted by a written
extra-judicial demand. Article 1155 is NOT
applicable.
The period does not apply to conversion or misdelivery.
The one (1) year period refers to loss of goods and not to
misdelivery.
-
1.
2.
-
Note: The carrier who may be compelled to pay has the right of
recourse against the employee who committed the negligent,
willful or fraudulent act.
B. Kinds of Damages
2 Kinds:
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2) Attorneys fees
refer to Art. 2208 of the Civil Code
attorneys fees may be awarded in an action for
breach of contract of carriage under par. 1,2,4,5,10
and 11 of Art. 2208.
If awarded exemplary, one is entitled to attorneys
fees
3) Interests
c) Nominal Damages
Refer to Art. 2221-2223 (Civil Code)
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A. CONCEPTS (Chapter 6)
STATUTORY PROVISIONS
Governing Laws:
1. New Civil Code primary law on maritime commerce
2. Book III Code of Commerce applied suppletorily
3. Special Laws
a. Salvage Law (Act No. 2616)
b. Carriage of Goods by Sea Act (CA No. 65)
c. Ship Mortgage Decree of 1978 (PD 1521)
REAL AND HYPOTHECARY NATURE OF MARITIME LAW
Case: Philippine Shipping Company, et al. vs. Francisco Garcia
Vergara
That which distinguishes the maritime from the civil
law and even from the mercantile law in general is the
real and hypothecary nature of the former
Page 20
No vessel, no liability.
negligence of the
(NEGLIGENCE)
shipowner
and
the
captain
2.
3.
4.
5.
Page 21
PROTESTS
is the written statement by the master of a vessel or
any authorized officer, attested by proper officer or a
notary, to the effect that damages has been suffered
by the ship
Required under the following cases:
1. When the vessel makes an arrival under stress
2. Where the vessel is shipwrecked
3. Where the vessel has gone through a hurricane or the
captain believe that the cargo has suffered damages or
averages
4. Maritime collisions
Q: when is it not required?
A:
1. when it does not fall under the four cases mentioned
above
2. when what is not involve is not a vessel
ADMIRALTY JURISDICTION (RTC)
Section 19 (3) of BP 129 as amended by RA 7691
(3) In all actions in admiralty and maritime
jurisdiction where the demand or claim exceeds
300, 000 or in Metro manila, where such
demand or claim exceeds 400,000.
if less MTC
3 concepts: (they are the same)
1. real and hypothecary --- the supreme court did not explain
the literal meaning of it.
- real: refers to the risk in maritime thats why there are
privileges for the shipowner. Risks are certain to happen
- hypothecary: remember guaranty and collateral which is the
vessel. For the particular voyage, the guaranty is the vessel
wherein if the vessel is lost, the shipowner no longer has the
liability
2. limited liabililty rule --- no literal explanation
- limited: it means that the liability is limited to the value of the
vessel
-liability: assumption that the shipowner is liable for the losses.
There are no valid defenses that shipowner can invoke to escape
liability. Same concept with 1479. Difference is that there is a
fixed amount and there is qualification
-under the limited liability no fixed amount but amount is
confined on the vessel
The question here: is this a right to limit the liability?
A: admittedly it is a right that only shipowner can exercise
Q; how to exercise?
A: by way of pleading. But do not follow the way it was filed in
yangco. Here it was after judgment that the shipowner sought to
abandon the ship to abandon liability
But right now, it is a matter of procedure. To limit liability by
abandoning the vessel; IF it is a matter of procedure, you check
the rules of civil procedure
Q: so when does shipowner inform the court the right to limit
liability?
A: in a pleading and normally in an answer. IT will be raised as a
defense. If shipownver cannot allege, then that defense is
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to
procure
repairs
2. extrajudicial
- the problem with vessel, mortgagee is not in possession of the
vessel. It is with the mortgagor, you cannot sell the property not
in your possession.
In PD 1521the order of arrest can be asked
Grounds to discharge
1. irregularly issued (mortgagee na ilad. Wala pa diay due
obligation
2. posting of a bond to discharge..the bond to be posted is
double the value of the claim.
Maritime lien on necessaries (5 requisites) brief yourself
cresent petroleum case (look at book for requisites)
B. VESSELS (Chapter 7)
1. General Concepts
Page 23
Page 24
MORTGAGE
2.
SAFETY REGULATIONS
earned;
cargo;
d.
3.
Page 25
b.
c.
the Labor Code. For officers and crew who are working in
foreign vessels who are involved in overseas shipping, there
must be compliance with the applicable laws on overseas
employment as well as regulations issued by the Philippine
Overseas Employment Administration (POEA).
Page 26
Shipowner
he has the privilege to invoke limited liability rule
what if with a charter party with charterer, who can
invoke the LLR? No jurisprudence. Personal opinion of
sir: distinguish on the type of charter party. If
affreightment, shipowner retains possession, command
and navigation of the vessel. If bareboat it is vested
upon the charterer.
Jurisprudence: except for registration, the charterer is
the temporary owner of the vessel. With this, the
charterer can invoke LLR (this part no juris)
Note: there is not distinction of liability of shipowner and ship
agent. They are civilly liable
There is a situation in maritime law that shipower and agent
they are held liable for the act or omission of a third person
which is the ship captain or master.
ACTS of CAPTAIN
Case: Yucon case and Sweetlines case
In Yucon, money was entrusted to the captain and the
money was lost. SC concluded that shipowner was
liable for the lost because the captain failed to put up
measures while in custody of the money. It may not
technically to an act but may refer to admission but
would fall under the term acts
In sweetlines, bound for catbalogan but the captain
chose to allow the passengers to disembark in
tacloban. This time, this is the act of captain. The SC
concluded that the damages sustained by passengers
bound for catbalogan are to shouldered by the
shiponwer
Indemnities in Favor of 3rd person: OTTA devt case sited in walter
smith case
In OTTA the owner of the pier was at the same time the
owner of the goods. SC, because there was a
relationship of owner of vessel and goods, then there is
presumption of negligence new civil code prevails
Walter smith case: There was no relationship. Owner of
port and owner of goods are different. What was
applied by court was the law on torts. No presumption
of negligence. There should be proof of negligence. The
owner of vessel proved that he exercised ordinary
diligence (required in ports). What was presented was
the competence of shipcaptain. The shipowner proved
ordinary diligence in choosing the ship captain
Contracts entered into by shipcaptain or master
Inter orient case: one role is they are the general agent of the
shipowener. But if the obligation contracted by the captain does
not enure to the benefit of the vessel, then the shipowner has
no liability. There is no conflict bec. 586 obligations contracted
by the shipper while 1759 death or injury of passenger as result
of contract of carriage.
The case in point with the contracts entered into was the case
Wing Kee. There were supplies delivered. Shipagent was said to
be liable. SC said at the time you were still an agent you were
liable but at the time agency was terminated you are no longer
liable.
If both SO and SA are sued, being solidarily liable, the SA has
right of recourse over SO.
Shipcaptain or master
The difference is with regard to the tonnage of the
vessel (higher: captain; lower: master; major patron
and minor patron)
The question on the shipcaptain or master is the
exercise of discretion
Inter orient case: captain tayong did not want to
proceed with the voyage from Singapore to Africa bec.
Of lack of oxygen and acetylene. But because of order
of management he proceeded. He was then ordered to
repatriated and then another captain took his place. He
filed for illegal dismissal. The issue was the discretion
exercised by the captain. WON he has the discretion
not to proceed bec. Of lack of supply. SC said you
should emphasize reasonable discretion--- it is the
captains duty
Inter Orient: triple roles of the captain --- general agent,
commander and technical manager, representative of
country
Shipcaptain and harbor pilot
Harbor pilot: distinguish if voluntary or compulsory
Case cited by SC on proper relationship of captain and
pilot. In far eastern shipping case 521 3rd par --- ther
are occasion when the master may and should interfere
and even displace the pilot when he is obviously
incapacitate and intoxicated. (look at the book)
In this case, there is relevance on when the captain
should interfere. If it is voluntary (pilot engaged by
shipowner) --- damages caused by pilot, shipowner is
liable. If compulsory, shipowner can escape liability
If compulsory distinguish
whether
there was
circumstances that would require the shipcaptain to
interfere with the ship pilot. If there are circumstances
but captain did not interfere then shipowner is liable. If
there are circumstances and captain interfere but still
there is damage, the shipowner will not be liable.
Cebu Port Authority --- covered by compulsory pilotage
Chiefmate or sailing mate (then there are engineers)
2008 case, citing the article the code of commerce
specifying the functions of chiefmate being second in
command of the vessel Chiefmate is a managerial
employee (as provided in labor code --- loss of trust and
confidence
Seaman
On security of tenure: distinguish DOMESTIN (labor
code) abroad (POEA).. there is a standard contract
(poea prepared and drafted it and every seaman shall
comply with this --- this is to protect filipino seaman
working abroad) that will be signed by every seaman
stipulating the security of tenure, repatriation, benefits,
etc.
Difference for abroad: bigger income but contractual
(after contract go home).. DOMEstic, you can be a
Page 27
Coastwise Lighterage v. CA
WON private carrier would convert to a common
carrier; contract of affreightment
Ruling : reiterated Planters ruling ; but was not able to
rebut presumption of negligence ; did not exercise EO
diligence ( hired unlicensed patron)
Home Insurance v. American Steamship
case mostly used by the common carrier as defense ;
Home Insurance is subrogee (paid SMC of loss cargo
shipped thru American Steamship ; no reference as to
what contract but there was a mention that it was in
affreightment
Ruling : Common Carrier undertaking to carry special
cargo (chartered to special person only ) become a
private carrier and stipulation exempting owner from
liability for loss due to the negligence of its agents is
valid;
Shipowner can appoint senior officers for the vessel even if
bareboat contract. But technically it is an affreightment. Most
conflicts will occur if these various principles will have to be
mixed.
The whereabouts of the vessel is important to know the time for
loading and unloading
Policy marina
Implementing or enforcement --- Coastguard
2 conditions implied in charter party
1. seaworthiness (Caltex Phil Case) --- it need not be written in
the charter party
2. --- look at book (ala kaapas)
JURISDICTION OF ADMIRALTY CASES
depends on the jurisdictional amount
important element of the contract = the subject matter
of the contract (nature and character)
International Harvester v Aragon
-involves loss of cargo shipped from LA to Manila; cargo owner
filed an action against common carrier
-SC said liability of petitioner was predicated upon the contract
of carriage ; admiralty would involve all maritime contract in
whatever form and wherever made
Macondry v Delgado Brothers
Delgado was an operator of a pier service ; WON
operator exercised its duty in loading and unloading of
cargos ; no contract of carriage ; obligation was only to
load the to the ship ; no application of admiralty
FRIEGHT OR FREIGHTAGE
price of carriage
shall accrue according to what is stipulated in the
contract
should there be no stipulation or if it is ambiguous ,
rules shall be
a.
freight shall begin to run from the day of
loading on the vessel
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b.
c.
Art. 1753. The law of the country to which the goods are
to be transported shall govern the liability of the
common
carrier
for
their
loss,
destruction
or
deterioration.
Page 29
EXCEPTIONS:
1. On the portion of the vessel he owns, provided no
money has been previously borrowed on the whole
vessel, nor exists any other kind of lien or obligation
chargeable against her.
2. When he is permitted to do so, he must necessarily
state what interest he has in the vessel.
CONTENTS OF THE LOAN CONTRACT:
1. kind, name and registry of the vessel;
2. name, surname and domicile of the captain;
3. names, surnames and domiciles of the borrower and the
lender;
4. amount of the loan and the premium stipulated;
5. time for repayment;
6. goods pledged to secure repayment;
7. voyage during which the risk is run (Art.721)
WHO MAY CONTRACT:
1.
2.
DISTINCTIONS:
BOTTOMRY/
RESPONDENTIA
ORDINARY LOAN
1. Subject to Usury Law
2. Not subject
contingency
7. To be binding on third
person must be recorded in
the registry of vessels of port
of registry of the vessel
8.
Loss
of
collateral
extinguishes the same
any
to
which may take place in the things upon which the loans were
made.
Page 30
of
Common danger
- means both the ship and the cargo, after has been loaded, are
subject to the same danger, whether during the voyage, or in
the port of loading or unloading, that the danger arises from the
accidents of the sea, disposition of authority, or faults of men,
provided that circumstances producing the peril should be
Page 31
2.
3.
4.
By Whom Borne
- shall be borne by those who benefited from the sacrifice; the
shipowner and the owner of the cargoes that were saved
Contribution may be imposed to;
a. insurers ( Insurance Code of the Philippines)
- they are obliged to pay for the indemnification of the gross
average provided that the liability shall be limited to the
proportion of contribution attaching to his policy value where
this is less than the contributing value of the thing insured
b. lenders of bottomry and respondentia (Code of
Commerce)
-obliged to pay in proportion to their respective interest, the
general average which may take place in the goods which the
loan is made
Who is entitled to indemnity?
Owner of the goods which were sacrificed is entitled to
receive the general contribution
Except;
1.
goods carried on desk unless
the rule special law or customs of the
place allow the same
2.
goods that are not recorded
in the books or records of the vessel
3.
fuel of the vessel if there is
more than sufficient fuel for the voyage
American Home Insurance v. CA
Art 848 states that claims shall not be admitted if they do not
exceed 5% of the interest which the claimant may have in the
vessels or cargo if it is general average, and 1% of the goods
damaged if particular average deducting in both cases the
expenses of appraisal, unless there is an agreement to the
contrary.
It is clear that the damage of the cargo is particular average
since the loss is less than 1% to the value of the cargo and there
appears to be no allegations as to any agreement defendants
and consignee of the goods to the contrary, by express
provision of law, plaintiff is barred from suing for
recovery.
Law on averages does not apply if the CC is negligent.
DETERMINING
AVERAGES
- the same concept that was existing in medieval times can be
applied at present
YORK-ANTWERP RULES ON
CONTRIBUTION ON AVERAGES
LIABILITY
FOR
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A: no. even if ship captain does not initiate, the shipowner can
still file the appropriate proceeding in court.
COMMON DANGER both to vessel and cargo. If one invokes
general average then that person must prove what he allege. In
standard oil since ship captain invoked gen aver they should
be the one to prove. Failure to prove, they cannot ask for
contribution from owners of the goods.
It is also possible that there are no goods involved. Only
extraordinary expense Phil. Home assurance case --- discussed
also in chapter 3 --- when it exploded, vessel got burned,
another vessel came to the rescue to extinguish the fire and
towed the vessel to the nearest destination. Goods were saved
from the subject vessel. The shipowner asked for contribution to
the owner of the goods which were saved. SC said, shipowner
did not comply legal steps 813-815 thus you cannot allege
general averages.
If the averages are not general, it is particular. the shipowner
will be solely liable in the case of Magsaysay, there was no
deliberate sacrifice.
SUCCESSFUL SAVING
Both vessel and goods must be saved
If vessel not saved, no general averages. Even if goods
were saved
You have to start with resolution, placing of reso in the
log book, accounting of goods thrown away starting
those on deck and to follow from those not on deck
(read 83-815)
American Home insurance (take note this case--- bar)
Transportation of tv sets, the shipcapatain was uprised
of the typhoon. Still captain continued with the journey.
Then na abot ang typhoon captain directed that the tv
sets should be jettison. Saved vessel. Reklamo owner.
Is there general average? No. if the shipowner is
negligent, the law on general averages does not apply.
Note that examples of the two types of averages are not
exclusive. There is a word especially thus there may be other
example that may fall under this two type of averages.
YORK AND TURP RULES
THIS CAN be stipulated in a contract that this rule will
apply in respect to averages
In the absence of stipulation in the contract in applying
this rule, such rule is inapplicable
Q: ordinary expenses are not averages bec. They are
foreseeable, are there instance that they can be considered to
be extraordinary ave
A; if the parties agree that the averages will cover ordinary
expenses. The code of commerce does not prohibit the inclusion
of other expenses under averages.
G. COLLISIONS
Collisions - impact of 2 vessels both of which are moving.
Allision - impact between a moving vessel and a stationary
one.
3 Zones of Time in the Collision of vessels:
1. First zone all time up to the moment when risk of collision
begins;
2. Second zone time between moment when risk of collision
begins and moment it becomes a practical certainty;
3. Third zone time when collision is certain and time of
impact.
Error in Extremis - sudden movement made by a faultless
vessel during the 3rd zone of collision with another vessel which
is at fault during the 2nd zone. Even if such sudden movement
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good condition
(Art. 824)
Liability of captain:
captain responsible for the damages caused by his
delay
if cause of arrival under stress ceases he should not
continue the voyage
if cause of arrival should have been the fear of enemies
deliberation and resolution (in a meeting of officers
of the vessel and persons interested in the cargo) shall
precede the departure
(Art. 825)
* Shipwreck the demolition or shattering of a vessel caused
by her driving ashore or on rocks and shoals in the midseas, or
by the violence of winds or waves in tempests
- loss of the vessel at sea as a consequence of its grounding, or
running against an object in sea or on the coast
Loss or deteriorations of vessel or cargo caused by shipwreck
or stranding individually account of the owners; part which
may be saved belonging to them, same proportion. (Art. 840)
If the wreck was due to malice, negligence or lack of skill of
the captain, the owner of the vessel may demand indemnity
from said captain. (Art. 841)
The goods saved from the wreck to be specially bound for the
payment of the expenses of the respective salvage. (Art. 842)
If several vessels sail under convoy, and any of them should
be wrecked, the cargo saved will be distributed among the rest
in proportion to the amount which each one is able to take. If
any captain should refuse, without sufficient cause, to receive
what may correspond to him, the captain of the wrecked vessel
to enter a marine protest against him. If it is not possible to
transfer to the other vessels the entire cargo of the vessel
wrecked, the goods of the highest value and smallest volume to
be saved first. Designation to be made by the captain with
concurrence of his officers. (Art. 843)
The captain taking on-board the goods saved from the wreck
to continue his course to the port of destination and upon arrival
he should deposit the goods for disposal to their owners. In
case the captain changes his course, and if he can unload them
at the port of which they were consigned, he may make said
port if the shippers or supercargoes present and the officers and
passengers of the vessel consent thereto. But he is not required
to do so even if he has the consent during time of war or when
the port is difficult and dangerous to make. The owners of the
cargo to defray all the expenses of this arrival and the payment
of the freightage. (Art. 844)
If cannot be, proceed to judicial sale complying with the
formalities and on publicity. (Art. 845)
I. SALVAGE LAW (Act No. 2616)
* SALVAGE services one person renders to the owner of a ship
or goods, by his own labor, preserving the goods or the ship
which the owner or those entrusted with the care of them have
either abandoned in distress at sea, or are unable to protect or
secure.
Kinds of Salvage:
Voluntary compensation is dependent on the success.
Under contract for a per diem or per horam wage
payable at all events.
Under contract for compensation payable only in case
of success.
Claim for valid salvage:
Provides for a reward for voluntary salvage
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Maritime Lien
A salvor, in maritime law, has an interest in the property;
called a lien, but it never goes, in the absence of a contract
expressly made, upon the idea of debt due from the owner to
the salvor but upon the principle that the service creates a
property in the thing saved.
Rule on salvage reward:
1. The reward is fixed by the RTC judge in the absence of
agreement or where the latter is excessive (Sec. 9).
2. If sold (no claim being made within 3 months from
publication), the proceeds, after deducting expenses and
the salvage claim, shall go to the owner; if the latter does
not claim it within 3 years, 50% of the said proceeds shall
go to the salvors, who shall divide it equitably, and the
other half to the government (Secs. 11-12).
3. If a vessel is the salvor, the reward shall be distributed as
follows:
a. 50% to the shipowner;
b. 25% to the captain; and
c. 25% to the officers and crew in proportion to their
salaries
SALVAGE LAW
SECTION 1. WHEN IN CASE OF SHIPWRECK, THE VESSEL OR
ITS CARGO SHALL BE BEYOND THE CONTROL OF THE CREW, OR
SHALL HAVE BEEN ABANDONED BY THEM, AND PICKED UP AND
CONVEYED TO A SAFE PLACE BY OTHER PERSONS, THE LATTER
SHALL BE ENTITLED TO A REWARD FOR THE SALVAGE.
THOSE WHO, NOT BEING INCLUDED IN THE ABOVE PARAGRAPH,
ASSIST IN SAVING A VESSEL OR ITS CARGO FROM SHIPWRECK,
SHALL BE ENTITLED TO A LIKE REWARD.
SEC. 2. IF THE CAPTAIN OF THE VESSEL, OR THE PERSON
ACTING IN HIS STEAD, IS PRESENT, NO ONE SHALL TAKE FROM
THE SEA, OR FROM THE SHORES OR COAST MERCHANDISE OR
EFFECTS PROCEEDING FROM A SHIPWRECK OR PROCEED TO
THE SALVAGE OF THE VESSEL, WITHOUT THE CONSENT OF SUCH
CAPTAIN OR PERSON ACTING IN HIS STEAD.
SEC. 3. HE WHO SHALL SAVE OR PICK UP A VESSEL OR
MERCHANDISE AT SEA, IN THE ABSENCE OF THE CAPTAIN OF
THE VESSEL, OWNER, OR A REPRESENTATIVE OF EITHER OF
THEM, THEY BEING UNKNOWN, SHALL CONVEY AND DELIVER
SUCH VESSEL OR MERCHANDISE, AS SOON AS POSSIBLE, TO
THE COLLECTOR OF CUSTOMS, IF THE PORT HAS A COLLECTOR,
AND OTHERWISE TO THE PROVINCIAL TREASURER OR
MUNICIPAL MAYOR.
SEC. 4. AFTER THE SALVAGE IS ACCOMPLISHED, THE OWNER
OR HIS REPRESENTATIVE SHALL HAVE A RIGHT TO THE DELIVERY
OF THE VESSEL OR THINGS SAVED, PROVIDED THAT HE PAYS,
OR GIVES A BOND TO SECURE, THE EXPENSES AND THE PROPER
REWARD.
THE AMOUNT AND SUFFICIENCY OF THE BOND, IN THE ABSENCE
OF AGREEMENT, SHALL BE DETERMINED BY THE COLLECTOR OF
CUSTOMS OR BY THE JUDGE OF THE COURT OF FIRST INSTANCE
OF THE PROVINCE IN WHICH THE THINGS SAVED MAY BE
FOUND.
SEC. 5. THE COLLECTOR OF CUSTOMS, PROVINCIAL
TREASURER, OR MUNICIPAL MAYOR, TO WHOM A SALVAGE IS
REPORTED, SHALL ORDER:
A. THAT THE THINGS SAVED BE SAFEGUARD AND
INVENTORIED.
B.
C.
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Carrier, and
Shipper
- They are given their respective rights and obligations under
COGSA.
- Carrier (covered by COGSA) not limited to the shipowner;
includes charterer who enters into a contract of carriage with
the shipper
- Charterer charters a vessel and conducts his own business
for his own account
after chartering the vessel, he uses the vessel to
conduct a business of transportation obtaining goods from 3 rd
persons to transport the latters goods
Duties of the carrier:
Civil Code requires international carriers to exercise
extraordinary diligence in the performance of their
contractual obligations
Section 2 of COGSA carriers obligation and liabilities
in relation to the loading, handling, stowage, carriage,
custody, care and discharge of such goods
Section 3 of COGSA responsibilities of the carrier
under COGSA
Document of title required
- evidenced by the Bill of Lading
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Waiver
- The shipowner and the ship agent may waive the benefit of
any of the defenses in its favor provided not only under COGSA
but also under other laws
Limiting provision
- COGSA contains a provision that allows the shipper to recover
only US$500 per package unless there is a special declaration
unless there the real value of the goods is declared
- declaration made by the shipper stating an amount bigger
than $500 per package will make the carrier liable for such
bigger amount but only if the amount so declared is the real
value of the goods
Right to discharge dangerous cargo
- COGSA allows the carrier to discharge the good of the carrier
discovers that the goods are dangerous, inflammable or are
explosives