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Republic of the Philippines

G.R. No. L-42926 September 13, 1985
Emilio D. Castellanes for petitioners.
Apolinario A. Abantao for private respondents.

This litigation involves a claim for damages for the loss at sea of petitioners' respective children after
the shipwreck of MV Pioneer Cebu due to typhoon "Klaring" in May of 1966.
The factual antecedents, as summarized by the trial Court and adopted by respondent Court, and
which we find supported by the record, read as follows:
When the inter-island vessel MV "Pioneer Cebu" left the Port of Manila in the early
morning of May 15, 1966 bound for Cebu, it had on board the spouses Alfonso
Vasquez and Filipinas Bagaipo and a four-year old boy, Mario Marlon Vasquez,
among her passengers. The MV "Pioneer Cebu" encountered typhoon "Klaring" and
struck a reef on the southern part of Malapascua Island, located somewhere north of
the island of Cebu and subsequently sunk. The aforementioned passengers were
unheard from since then.
Plaintiffs Pedro Vasquez and Soledad Ortega are the parents of Alfonso Vasquez;
plaintiffs Cleto Bagaipo and Agustina Virtudes are the parents of Filipinas Bagaipo;
and plaintiffs Romeo Vasquez and Maxima Cainay are the parents of the child, Mario
Marlon Vasquez. They seek the recovery of damages due to the loss of Alfonso
Vasquez, Filipinas Bagaipo and Mario Marlon Vasquez during said voyage.
At the pre-trial, the defendant admitted its contract of carriage with Alfonso Vasquez,
Filipinas Bagaipo and Mario Marlon Vasquez, and the fact of the sinking of the MV
"Pioneer Cebu". The issues of the case were limited to the defenses alleged by the
defendant that the sinking of the vessel was caused by force majeure, and that the
defendant's liability had been extinguished by the total loss of the vessel.

The evidence on record as to the circumstances of the last voyage of the MV

"Pioneer Cebu" came mainly, if not exclusively, from the defendant. The MV "Pioneer
Cebu" was owned and operated by the defendant and used in the transportation of
goods and passengers in the inter-island shipping. Scheduled to leave the Port of
Manila at 9:00 p.m. on May 14, 1966, it actually left port at 5:00 a.m. the following
day, May 15, 1966. It had a passenger capacity of three hundred twenty-two (322)
including the crew. It undertook the said voyage on a special permit issued by the
Collector of Customs inasmuch as, upon inspection, it was found to be without an
emergency electrical power system. The special permit authorized the vessel to carry
only two hundred sixty (260) passengers due to the said deficiency and for lack of
safety devices for 322 passengers (Exh. 2). A headcount was made of the
passengers on board, resulting on the tallying of 168 adults and 20 minors, although
the passengers manifest only listed 106 passengers. It has been admitted, however,
that the headcount is not reliable inasmuch as it was only done by one man on board
the vessel.
When the vessel left Manila, its officers were already aware of the typhoon Klaring
building up somewhere in Mindanao. There being no typhoon signals on the route
from Manila to Cebu, and the vessel having been cleared by the Customs authorities,
the MV "Pioneer Cebu" left on its voyage to Cebu despite the typhoon. When it
reached Romblon Island, it was decided not to seek shelter thereat, inasmuch as the
weather condition was still good. After passing Romblon and while near Jintotolo
island, the barometer still indicated the existence of good weather condition
continued until the vessel approached Tanguingui island. Upon passing the latter
island, however, the weather suddenly changed and heavy rains felt Fearing that due
to zero visibility, the vessel might hit Chocolate island group, the captain ordered a
reversal of the course so that the vessel could 'weather out' the typhoon by facing the
winds and the waves in the open. Unfortunately, at about noontime on May 16, 1966,
the vessel struck a reef near Malapascua island, sustained leaks and eventually
sunk, bringing with her Captain Floro Yap who was in command of the vessel.
Due to the loss of their children, petitioners sued for damages before the Court of First Instance of
Manila (Civil Case No. 67139). Respondent defended on the plea of force majeure, and the
extinction of its liability by the actual total loss of the vessel.
After proper proceedings, the trial Court awarded damages, thus:
WHEREFORE, judgment is hereby rendered ordering the defendant to pay:
(a) Plaintiffs Pedro Vasquez and Soledad Ortega the sums of P15,000.00 for the loss
of earning capacity of the deceased Alfonso Vasquez, P2,100.00 for support, and
P10,000.00 for moral damages;
(b) Plaintiffs Cleto B. Bagaipo and Agustina Virtudes the sum of P17,000.00 for loss
of earning capacity of deceased Filipinas Bagaipo, and P10,000.00 for moral
damages; and

(c) Plaintiffs Romeo Vasquez and Maximina Cainay the sum of P10,000.00 by way of
moral damages by reason of the death of Mario Marlon Vasquez.
On appeal, respondent Court reversed the aforementioned judgment and absolved private
respondent from any and all liability.
Hence, this Petition for Review on Certiorari, the basic issue being the liability for damages of private
respondent for the presumptive death of petitioners' children.
The trial Court found the defense of caso fortuito untenable due to various decisive factors, thus:
... It is an admitted fact that even before the vessel left on its last voyage, its officers
and crew were already aware of the typhoon brewing somewhere in the same
general direction to which the vessel was going. The crew of the vessel took a
calculated risk when it proceeded despite the typhoon advisory. This is quite evident
from the fact that the officers of the vessel had to conduct conferences amongst
themselves to decide whether or not to proceed. The crew assumed a greater risk
when, instead of seeking shelter in Romblon and other islands the vessel passed en
route, they decided to take a change on the expected continuation of the good
weather the vessel was encountering, and the possibility that the typhoon would veer
to some other directions. The eagerness of the crew of the vessel to proceed on its
voyage and to arrive at its destination is readily understandable. It is undeniably
lamentable, however, that they did so at the risk of the lives of the passengers on
Contrariwise, respondent Appellate Court believed that the calamity was caused solely and
proximately by fortuitous event which not even extraordinary diligence of the highest degree could
have guarded against; and that there was no negligence on the part of the common carrier in the
discharge of its duties.
Upon the evidence and the applicable law, we sustain the trial Court. "To constitute a caso
fortuito that would exempt a person from responsibility, it is necessary that (1) the event must be
independent of the human will; (2) the occurrence must render it impossible for the debtor to fulfill
the obligation in a normal manner; and that (3) the obligor must be free of participation in, or
aggravation of, the injury to the creditor." 1 In the language of the law, the event must have been
impossible to foresee, or if it could be foreseen, must have been impossible to avoid. 2 There must be an
entire exclusion of human agency from the cause of injury or loss. 3
Turning to this case, before they sailed from the port of Manila, the officers and crew were aware of
typhoon "Klaring" that was reported building up at 260 kms. east of Surigao. In fact, they had lashed
all the cargo in the hold before sailing in anticipation of strong winds and rough waters. 4 They
proceeded on their way, as did other vessels that day. Upon reaching Romblon, they received the weather
report that the typhoon was 154 kms. east southeast of Tacloban and was moving west northwest. 5 Since
they were still not within the radius of the typhoon and the weather was clear, they deliberated and
decided to proceed with the course. At Jintotolo Island, the typhoon was already reported to be reaching
the mainland of Samar. 6 They still decided to proceed noting that the weather was still "good" although,
according to the Chief Forecaster of the Weather Bureau, they were already within the typhoon zone. 7 At

Tanguingui Island, about 2:00 A.M. of May 16, 1966, the typhoon was in an area quite close to
Catbalogan, placing Tanguingui also within the typhoon zone. Despite knowledge of that fact, they again
decided to proceed relying on the forecast that the typhoon would weaken upon crossing the mainland of
Samar. 8 After about half an hour of navigation towards Chocolate Island, there was a sudden fall of the
barometer accompanied by heavy downpour, big waves, and zero visibility. The Captain of the vessel
decided to reverse course and face the waves in the open sea but because the visibility did not improve
they were in total darkness and, as a consequence, the vessel ran aground a reef and sank on May 16,
1966 around 12:45 P.M. near Malapascua Island somewhere north of the island of Cebu.

Under the circumstances, while, indeed, the typhoon was an inevitable occurrence, yet, having been
kept posted on the course of the typhoon by weather bulletins at intervals of six hours, the captain
and crew were well aware of the risk they were taking as they hopped from island to island from
Romblon up to Tanguingui. They held frequent conferences, and oblivious of the utmost diligence
required of very cautious persons, 9 they decided to take a calculated risk. In so doing, they failed to
observe that extraordinary diligence required of them explicitly by law for the safety of the passengers
transported by them with due regard for an circumstances 10 and unnecessarily exposed the vessel and
passengers to the tragic mishap. They failed to overcome that presumption of fault or negligence that
arises in cases of death or injuries to passengers. 11
While the Board of Marine Inquiry, which investigated the disaster, exonerated the captain from any
negligence, it was because it had considered the question of negligence as "moot and academic,"
the captain having "lived up to the true tradition of the profession." While we are bound by the
Board's factual findings, we disagree with its conclusion since it obviously had not taken into account
the legal responsibility of a common carrier towards the safety of the passengers involved.
With respect to private respondent's submission that the total loss of the vessel extinguished its
liability pursuant to Article 587 of the Code of Commerce 12 as construed in Yangco vs. Laserna, 73
Phil. 330 [1941], suffice it to state that even in the cited case, it was held that the liability of a shipowner is
limited to the value of the vessel or to the insurance thereon. Despite the total loss of the vessel therefore,
its insurance answers for the damages that a shipowner or agent may be held liable for by reason of the
death of its passengers.
WHEREFORE, the appealed judgment is hereby REVERSED and the judgment of the then Court of
First Instance of Manila, Branch V, in Civil Case No. 67139, is hereby reinstated. No costs.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

1 Lasam vs. Smith, 45 Phil. 657, 661 [1924]; Autria vs. Court of Appeals, 39 SCRA
527 [1971].
2 Art. 1174, Civil Code; Lasam vs. Smith, 45 Phil. 657 [1924].

3 Tolentino, Commentaries on the Civil Code, Vol. V, p. 252.

4 T.s.n., August 8, 1967, p. 22.
5 Domestic Bulletin No. 16 of the Weather Bureau.
6 Domestic Bulletin No. 17.
7 T.s.n. December 15, 1967, p. 21.
8 Domestic Bulletin No. 18.
9 Arts. 1755, 1756, Civil Code.
10 Art. 1733, Ibid.
11 Art. 1756, Ibid.
12 Art. 587. The ship agent shall also be civilly liable for the indemnities in favor of
third persons which may arise from the conduct of the captain in the vigilance over
the goods which the vessel carried; but he may exempt himself therefrom by
abandoning the vessel with all her equipments and the freight he may have earned
during the voyage.