Republic of the Philippines On 10 December 1975, the trial court rendered a Decision 1 finding private respondent to be a common

SUPREME COURT carrier and holding him liable for the value of the undelivered goods (P 22,150.00) as well as for P 4,000.00
Manila as damages and P 2,000.00 as attorney's fees.

THIRD DIVISION On appeal before the Court of Appeals, respondent urged that the trial court had erred in considering him
a common carrier; in finding that he had habitually offered trucking services to the public; in not
exempting him from liability on the ground of force majeure; and in ordering him to pay damages and
G.R. No. L-47822 December 22, 1988
attorney's fees.

PEDRO DE GUZMAN, petitioner,
The Court of Appeals reversed the judgment of the trial court and held that respondent had been
vs.
engaged in transporting return loads of freight "as a casual
COURT OF APPEALS and ERNESTO CENDANA, respondents.
occupation — a sideline to his scrap iron business" and not as a common carrier. Petitioner came to this
Court by way of a Petition for Review assigning as errors the following conclusions of the Court of Appeals:
Vicente D. Millora for petitioner.
1. that private respondent was not a common carrier;
Jacinto Callanta for private respondent.
2. that the hijacking of respondent's truck was force majeure; and
FELICIANO, J.:
3. that respondent was not liable for the value of the undelivered cargo. (Rollo, p. 111)
Respondent Ernesto Cendana, a junk dealer, was engaged in buying up used bottles and scrap metal in
Pangasinan. Upon gathering sufficient quantities of such scrap material, respondent would bring such
We consider first the issue of whether or not private respondent Ernesto Cendana may, under the facts
material to Manila for resale. He utilized two (2) six-wheeler trucks which he owned for hauling the material
earlier set forth, be properly characterized as a common carrier.
to Manila. On the return trip to Pangasinan, respondent would load his vehicles with cargo which various
merchants wanted delivered to differing establishments in Pangasinan. For that service, respondent
charged freight rates which were commonly lower than regular commercial rates. The Civil Code defines "common carriers" in the following terms:

Sometime in November 1970, petitioner Pedro de Guzman a merchant and authorized dealer of General Article 1732. Common carriers are persons, corporations, firms or associations engaged
Milk Company (Philippines), Inc. in Urdaneta, Pangasinan, contracted with respondent for the hauling of in the business of carrying or transporting passengers or goods or both, by land, water,
750 cartons of Liberty filled milk from a warehouse of General Milk in Makati, Rizal, to petitioner's or air for compensation, offering their services to the public.
establishment in Urdaneta on or before 4 December 1970. Accordingly, on 1 December 1970, respondent
loaded in Makati the merchandise on to his trucks: 150 cartons were loaded on a truck driven by
The above article makes no distinction between one whose principal business activity is the carrying of
respondent himself, while 600 cartons were placed on board the other truck which was driven by Manuel
persons or goods or both, and one who does such carrying only as an ancillary activity (in local Idiom as "a
Estrada, respondent's driver and employee.
sideline"). Article 1732 also carefully avoids making any distinction between a person or enterprise offering
transportation service on a regular or scheduled basis and one offering such service on an occasional,
Only 150 boxes of Liberty filled milk were delivered to petitioner. The other 600 boxes never reached episodic or unscheduled basis. Neither does Article 1732 distinguish between a carrier offering its services
petitioner, since the truck which carried these boxes was hijacked somewhere along the MacArthur to the "general public," i.e., the general community or population, and one who offers services or solicits
Highway in Paniqui, Tarlac, by armed men who took with them the truck, its driver, his helper and the business only from a narrow segment of the general population. We think that Article 1733 deliberaom
cargo. making such distinctions.

On 6 January 1971, petitioner commenced action against private respondent in the Court of First Instance So understood, the concept of "common carrier" under Article 1732 may be seen to coincide neatly with
of Pangasinan, demanding payment of P 22,150.00, the claimed value of the lost merchandise, plus the notion of "public service," under the Public Service Act (Commonwealth Act No. 1416, as amended)
damages and attorney's fees. Petitioner argued that private respondent, being a common carrier, and which at least partially supplements the law on common carriers set forth in the Civil Code. Under Section
having failed to exercise the extraordinary diligence required of him by the law, should be held liable for 13, paragraph (b) of the Public Service Act, "public service" includes:
the value of the undelivered goods.
... every person that now or hereafter may own, operate, manage, or control in the
In his Answer, private respondent denied that he was a common carrier and argued that he could not be Philippines, for hire or compensation, with general or limited clientele, whether
held responsible for the value of the lost goods, such loss having been due to force majeure. permanent, occasional or accidental, and done for general business purposes, any
common carrier, railroad, street railway, traction railway, subway motor vehicle, either
for freight or passenger, or both, with or without fixed route and whatever may be its
classification, freight or carrier service of any class, express service, steamboat, or
steamship line, pontines, ferries and water craft, engaged in the transportation of

condition of the car vehicle." as follows: . electric light. whether international or civil. contrary to public policy: Common carriers. destruction or or of robbers who donot act with grave or irresistible threat. Causes falling outside the foregoing list. Under Article 1745 (6) above. observed extraordinary diligence as required in Article 1733. wire or wireless broadcasting stations and other similar public services. In all cases other than those mentioned in numbers 1." We believe and so hold It is important to point out that the above list of causes of loss. destroyed or deteriorated.1735 and 1745. without regard respondent to retain a security guard to ride with the truck and to engage brigands in a firelight at the risk to whether or not such carrier has also complied with the requirements of the applicable regulatory statute of his own life and the lives of the driver and his helper. that in the instant case. unless they prove that they systems. It would follow. a common carrier is held responsible — and will not be allowed to divest or to diminish such responsibility — even for acts of strangers like thieves or robbers. water article. and (1) Flood. To exempt private respondent from the liabilities of a common carrier because he has not The precise issue that we address here relates to the specific requirements of the duty of extraordinary secured the necessary certificate of public convenience. ice plant. Any of the following or similar stipulations shall be considered unreasonable. the standard of extraordinary diligence required private common carriers. violence deterioration of the goods which they carry. This is palpable error. violence if they appear to constitute a species of force majeure fall within the scope of Article 1735. calamity. would be offensive to sound public policy. 2. A certificate of public hired a security guard presumably to ride with the truck carrying the 600 cartons of Liberty filled milk. (6) that the common carrier's liability for acts committed by thieves. is a closed list. although such exempting causes listed in Article 1734. destruction or deterioration of goods on account of the defective (2) Act of the public enemy in war. numbers 5. and implementing regulations and has been granted a certificate of public convenience or other franchise. irrigation system. (Emphasis supplied) (Emphasis supplied) Applying the above-quoted Articles 1734 and 1735. if the goods are lost. and even must be dealt with under the provisions of Article 1735. 3. 5) that the common carrier shall not be responsible for the acts or according to Article 1733. earthquake. Article 1734 establishes the general rule that common carriers are responsible for the loss. heat and power. below commercial freight rates is not relevant here.. lightning or other natural disaster or (7) that the common carrier shall not responsible for the loss. ship. Petitioner insists that private respondent had not observed extraordinary diligence in the care of The Court of Appeals referred to the fact that private respondent held no certificate of public petitioner's goods. wharf or dock. may be overthrown by proof of extraordinary diligence on the part of private respondent. That liability arises the moment a person or firm acts as a common carrier. that fee frequently fell however. wire or wireless communications to have been at fault or to have acted negligently. shipyard. is dispensed with or diminished. the duty of extraordinary diligence in the vigilance over goods is. "by the nature of their business and for reasons of public policy" 2 are held to a very high xxx xxx xxx degree of care and diligence ("extraordinary diligence") in the carriage of goods as well as of passengers.. dispute that private respondent charged his customers a fee for hauling their goods. except where such thieves or robbers in fact acted "with grave or irresistible threat. numbers 4. that the private respondent as though private respondent's principal occupation was not the carriage of goods for others. unjust and We turn then to the liability of private respondent as a common carrier. in the contract of carriage. under Article 1733. and concluded he was not a common carrier. that the hijacking of the carrier's vehicle back-hauling was done on a periodic or occasional rather than regular or scheduled manner. canal. would be to reward private respondent precisely for failing to comply with applicable statutory requirements. gas. Code. We convenience is not a requisite for the incurring of liability under the Civil Code provisions governing do not believe. 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. 6 and 7" of the Civil omissions of his or its employees. The specific import of extraordinary diligence in the care of goods transported by a common carrier is. violence or force. "unless the same is due to any of the following causes only: or force. sewerage system. This presumption. "further expressed in Articles 1734. and (5) Order or act of competent public authority. As noted earlier. airplane or other equipment used (3) Act or omission of the shipper or owner of the goods. that diligence in the vigilance over the goods carried in the specific context of hijacking or armed robbery. common carriers are presumed supply and power petroleum. private respondent should have convenience. in other words. destruction or deterioration which exempt that the limits of the duty of extraordinary diligence in the vigilance over the goods carried are reached the common carrier for responsibility therefor. 4 and 5 of the preceding ice-refrigeration plant. storm. utilize their services and the law cannot allow a common carrier to render such duties and liabilities merely Article 1745 provides in relevant part: facultative by simply failing to obtain the necessary permits and authorizations. therefore. given The law imposes duties and liabilities upon common carriers for the safety and protection of those who additional specification not only by Articles 1734 and 1735 but also by Article 1745. marine repair shop. which provides or force. There is no common carrier is presumed to have been at fault or to have acted negligently. passengers or freight or both. 5 and 6. we note firstly that the specific cause alleged in the It appears to the Court that private respondent is properly characterized as a common carrier even instant case — the hijacking of the carrier's truck — does not fall within any of the five (5) categories of though he merely "back-hauled" goods for other merchants from Manila to Pangasinan. Petitioner argues that in the circumstances of this case. . even where the goods are lost as a result of a robbery which is attended by "grave or irresistible threat. however. (Emphasis supplied) (4) The character-of the goods or defects in the packing or-in the containers.

16 to 40 were attached to the pre-printed agreement. ACCORDINGLY. 4 In these circumstances.S. Alaska. SORIAMONT STEAMSHIP AGENCIES AND KYOSEI KISEN KABUSHIKI KAISHA. petitioner. the Petition for Review on certiorari is hereby DENIED and the Decision of the Court of BELLOSILLO. purchased from Mitsubishi International Corporation (MITSUBISHI) of New York. as evidenced by Bill of Lading No. not liable for the value of the undelivered merchandise which was lost because of an event entirely beyond private respondent's control. respectively. Jimenez & Associates for petitioner.A. 20th. if not irresistible. to Poro Point. provided that they shall have complied with the rigorous standard of extraordinary diligence. (PPI). Sinense. threat. 198 entitled "People of the Philippines v. 1993 subsequently found by the police in Quezon City. Pangasinan.In the instant case. 3Riders to the aforesaid charter-party starting from par. Oscar Oria and one John Doe. Before loading the fertilizer aboard the vessel. cleaned and dried at the vessel's expense and the vessel to be presented clean for use in bulk to the satisfaction of the inspector before daytime commences. four (4) of her holds 4 were all presumably inspected by the charterer's representative and found fit to take a load of urea in bulk pursuant to par.7069 metric tons (M/T) of Urea 46% fertilizer which the latter shipped in bulk on 16 June 1974 aboard the cargo vessel M/V "Sun Plum" owned by private respondent Kyosei Kisen Kabushiki Kaisha (KKKK) from Kenai. 2. therefore. respondents..R. The hijacked truck was G. The decision of the trial court shows that the accused acted with grave. No. a time charter-party on the vessel M/V "Sun Plum" pursuant to the Uniform General Charter 2 was entered into between Mitsubishi as shipper/charterer and KKKK as shipowner. driven by Manuel FIRST DIVISION Estrada and loaded with the 600 cartons of Liberty filled milk destined for delivery at petitioner's store in Urdaneta. At loading port.S. we hold that the occurrence of the loss must reasonably be regarded as quite beyond the control of the common carrier and properly PLANTERS PRODUCTS. and are not held liable for acts or events which COURT OF APPEALS. notice of readiness to be accomplished by certificate from National Cargo Bureau inspector or substitute appointed by charterers for his account certifying the vessel's readiness to receive cargo spaces. 3 and 4 to the charter-party were also subsequently entered into on the 18th. Japan. 9. 3 Three (3) of the five (5) hold-uppers were armed with firearms. Felipe Boncorno. Philippines. Gonzales. INC. The vessel's hold to be properly swept. Branch 2. in Tokyo. La Union. Armando Mesina. detaining them for several days and later releasing them in another province (in Zambales). . San Fernando. insurers against all risks of travel and of transport of goods. No pronouncement as to costs. The record shows that an information for robbery in band was filed in the Court of First SUPREME COURT Instance of Tarlac. . (emphasis supplied) . 16 of the charter- party which reads: 16. the accused were charged with willfully and unlawfully taking and carrying away with them the second truck.329. 1. though not of robbery in band. U.. violence or force. KP-1 signed by the master of the vessel and issued on the date of departure. It is necessary to recall that even common carriers are not made absolute vs.A. On 17 May 1974. 101503 September 15. or prior to its voyage. 21st and 27th of May 1974. Addenda Nos. Manila Napoleon Presno.. The Court of First Instance convicted all the accused of robbery. agree with the result reached by the Court of Appeals that private respondent Cendana is Siguion Reyna. cannot be foreseen or are inevitable. Inc." There. Does a charter-party 1 between a shipowner and a charterer transform a common carrier into a private one as to negate the civil law presumption of negligence in case of loss or damage to its cargo? Planters Products. . armed men held up the second truck owned by private respondent which carried Republic of the Philippines petitioner's cargo. regarded as a fortuitous event. U. J.: Appeals dated 3 August 1977 is AFFIRMED. Montecillo & Ongsiako Law Office for private respondents. in Criminal Case No. The robbers not only took away the truck and its cargo but also kidnapped the driver and his helper. We.

Accordingly. its load of Urea was covered with tarpaulin before it was transported to the consignee's warehouse located some fifty (50) meters from the wharf.. It is an old and well settled rule that if the plaintiff. in the negative. The same results were contained in a Certificate of Shortage/Damaged Cargo negligent in performing its obligation . common or private he may be. ferilizer.726 M/T and that a portion of the Urea fertilizer approximating 18 M/T was instant case discloses ample evidence showing that defendant carrier was not contaminated with dirt. PPI faults the Respondent SSA explained that they were not able to respond to the consignee's claim for payment appellate court in not applying the presumption of negligence against respondent carrier. from 5 July to 18 July 1974 (except July 12th. then tied with cargo. facts upon which he bases his claim.I. 13 Civil Code applies only to common carriers and not to private carriers. . . Midway to the warehouse. in consideration of the payment of freight. fails to show in a satisfactory manner the opening at the front where the dump trucks entered and unloaded the fertilizer on the warehouse floor. and that this "request" was denied by them because they "had nothing to do with the he was not even at hand to witness what transpired during the entire voyage. whether the shipowner in the instant case was able to prove for the value of the goods lost or damaged when it ruled thus: 15 that he had exercised that degree of diligence required of him under the law. pursuant to the terms for the value of the cargo that was lost or damaged. it was incumbent upon the plaintiff-appellee to purpose of ascertaining the net weight of the cargo. is let by proving that the loss or damage was due to any of the causes which exempt him from the owner to another person for a specified time or use. 7 Plum" owned by private respondent KKKK was a private carrier and not a common carrier by reason of the time charterer-party. certain portions of the route adduce sufficient evidence to prove the negligence of the defendant carrier as to the warehouse were sandy and the weather was variable. 19 Petitioner further argues that since the possession and control of the vessel remain with the shipowner. by taking draft readings of the vessel prior to and after plaintiff was under the impression that it did not have to establish defendant's discharge. (b) charter by demise or bareboat charter. the Civil Code provisions on common carriers which set forth a presumption of negligence do not find application in the case at bar. what they received was just a request for shortlanded certificate and not a shifting the onus probandi on the shipper to show want of due deligence on the part of the carrier. This being so. . PPI sent a claim letter dated 18 December 1974 to Soriamont Steamship Agencies (SSA). raining occasionally while the discharge was alleged in its complaint. v. Commentaries on the Rules of Court. 5 presumption of negligence against them. 11 The survey report submitted by CSCI to the consignee (PPI) dated 19 July 1974 revealed a negligence. .31 representing the cost of the alleged shortage in the the vessel seaworthy in all respects. was hired by cause of action.After the Urea fertilizer was loaded in bulk by stevedores hired by and under the supervision of the shipper. 10A private marine and cargo surveyor. 202). Inc. shipper has to do in a suit to recover for loss or damage is to show receipt by the carrier of the goods and to delivery by it of less than what it received. The defendant carrier argued that the strict public policy governing common carriers does not apply to them because they have become private carriers by reason of the provisions of the As earlier stated. for loss or damage to goods cause by want of due deligence on its part or that of its manager to make the resident agent of the carrier. The port area was windy. absent any stipulation to the contrary. rust and Petitioner PPI appeals to us by way of a petition for review assailing the decision of the Court of Appeals. KKKK. Petitioner unloaded the cargo from the holds into its steelbodied dump trucks On appeal. It appears that the PPI to determine the "outturn" of the cargo shipped. having been polluted with sand. p. 14th and But. 6 The hatches remained open Co. It took eleven (11) days for PPI to unload the cargo. 20 a contract of affreightment by which the owner liability is shipted to the carrier. when formal claim. 9 citing Belen v. dated 18 July 1974 prepared by PPI which showed that the cargo delivered was indeed short of 94. the primordial issue here is whether a common carrier becomes a private carrier by charter-party. (CSCI). By this omission. the alleged negligence of defendant carrier. 16 Relying on the 1968 case of Home Insurance and conditions of the charter-partly (which provided for an F. the record of the shortage in the cargo of 106. Prescinding from the provision of the law that a common carrier is presumed It is said that etymology is the basis of reliable judicial decisions in commercial cases. it was still incumbent upon them to prove that the shortage or types: (a) contract of affreightment which involves the use of shipping space on vessels leased by the contamination sustained by the cargo is attributable to the fault or negligence on the owner in part or as a whole. using metal scoops attached to the ship. all that a it fitting to first define important terms which are relevant to our discussion. such shipowner should made liable for the negligence of the captain and crew. 17 the appellate court ruled that the cargo vessel M/V "Sun throughout the duration of the discharge. upon whom in progress.839 M/T and about 23 M/T were rendered unfit for commerce. Even if the provisions of of a ship or other vessel lets the whole or a part of her to a merchant or other person for the conveyance the charter-party aforequoted are deemed valid. PPI filed an action for damages with the Court of First Instance of Manila." 14 Hence. or some principal part thereof. American Steamship Agencies.S. the defendant is under no obligation to prove his Tarpaulins and GI sheets were placed in-between and alongside the trucks to contain spillages of the exception or defense (Moran. on a particular voyage. and instead because.969. Belen. 21 Charter parties are of two private carriers. 13 Phil.O. Cargo Superintendents Company Inc. This they failed to do.e. coupled with their failure to destroy the steel bonds. contrary to the trial court's finding. by . The court a quo however sustained the claim of the plaintiff against the defendant carrier reason of a charter-party. and the defendants considered of goods. 2. to carry goods for others. on 18 July 1975. the record shows that the plaintiff-appellee dismally failed to prove the basis of its 18th). the defendants are liable (emphasis supplied). The hatches remained closed and tightly sealed throughout the entire voyage. and. with an rests the burden of proving his cause of action. and not whether the presumption of negligence provided under the goods shipped and the diminution in value of that portion said to have been contaminated with dirt. Thus — Each time a dump truck was filled up. Be that as it may. we find negligent in case of loss or damage of the goods it contracts to transport. In the absence of such presumption. stowing. . After that. 8 The petitioner's warehouse was made of corrugated galvanized iron (GI) sheets. according to them. Volume 6. the steel pontoon hatches were opened with the use of the vessel's boom. respondent Court of Appeals reversed the lower court and absolved the carrier from liability which were parked alongside the berth. discharge of the shipment. 12 Petitioner theorizes that the Home Insurance case has no bearing on the present controversy because the issue raised therein is the validity of a stipulation in the charter-party delimiting the liability of the shipowner Consequently. covered with three (3) layers of tarpaulin. Upon arrival of the vessel at her port of call on 3 July 1974. trimming and discharge of the the steel hatches were closed with heavy iron lids. In fine. dirt. . the burden of A "charter-party" is defined as a contract by which an entire ship. for P245. part of the shipper or consignee in the loading. i. 18 (emphasis supplied). . clause). the trucks were made to pass through a weighing scale where they were individually weighed for the .

in the ordinary course of business. provided the charter is limited to the ship only. the term "common or public carrier" is defined in Art. 26 On faciepresumption of negligence. operates as a common carrier. and performing its obligations. 23 The is usually without any representative on board the ship. Hardly then can we charge the charterer. a shipowner in a time or voyage charter Verily. such that if the undertaking is a single transaction. . not a part of the In an action for recovery of damages against a common carrier on the goods shipped. so that he takes over the charge and control of her. Japan. more particularly. the rules governing common carriers. although involving the carriage of goods for a fee. the contrary. be the property of the overcome by the showing of extraordinary zeal and assiduity exercised by the carrier in the care of the charterer. . 29 does not find hull of the vessel at the time of the discharge of the cargo was sealed and nobody application in our jurisdiction. the shipper or general business or occupation. three layers of tarpaulins and therefore their contents were protected from the weather (TSN. After It is not disputed that respondent carrier. American Steamship Agencies. the same opportunities for fraud definition extends to carriers either by land. completing the loading of the cargo in bulk in the ship's holds. testified that before the fertilizer was loaded. the stevedores. notwithstanding the charter of the cargo under the watchful eyes of the shipmates who were overseeing the whole operation on rotation whole or portion of a vessel by one or more persons. damage or Article 1733 of the New Civil Code mandates that common carriers. for the moment.the terms of which the whole vessel is let to the charterer with a transfer to him of its entire command and We quote with approval the observations of Raoul Colinvaux. foreclosing the possibility incidents of maritime navigation were all consigned to the officers and crew who were screened. or voyage charter. or some other circumstances inconsistent with its business. 32 stranger to the crew and to the ship. the four (4) hatches of the vessel were cleaned. that to . Where the ship herself is both cases. chosen of spillage of the cargo into the sea or seepage of water inside the hull of the vessel. the following testimonies of plaintiff-appellee's not the effects of a special charter on common carriers. respondent carrier has sufficiently overcome. 5 April 1978. p. The master of the carrying vessel. made of steel and it was overlaid with tarpaulins. Contract of affreightment may either be time charter. is misplaced for the reason that the meat of the controversy therein was the validity of a stipulation discloses ample evidence showing that defendant carrier was not negligent in in the charter-party exempting the shipowners from liability for loss due to the negligence of its agent. and the burden of proving otherwise rests on them. 24 the possession. p. as in basis. wherein the vessel is leased to the As a matter of principle. casual occupation. the record of the instant case supra. and a cargo surveyor representing CSCI. of the carrier. dried and fumigated. Be that as it may. 22 In ship is used to convey the goods of one and of several persons. air or water which hold themselves out as ready to engage in or collusion occur. wherein the ship is leased for a single voyage. The distinction between a "common or public carrier" and a "private or special carrier" lies in the character of the business. . at least insofar as the particular voyage covering the charter-party is concerned. The hatches remained close and tightly sealed while the ship was in transit as the weight of the continued to be under its direct supervision and control. the shipowner is not then a carrier. that the cover of the hatches was admiralty laws. Captain Lee Tae Bo. should observe extraordinary diligence in the vigilance over the goods they carry. It is only when the charter includes both the vessel and its crew. 34 the case of a time-charter or voyage-charter. sealed with iron lids. 1732 of the Civil Code. the rule in the United States that a own witnesses clearly show absence of negligence by the defendant carrier. 31 of private carriers. in his deposition taken on 19 April 1977 before the Philippine Consul and Legal Attache in the Philippine Embassy in Tokyo. the charter-party provides for the hire of vessel only. opened the hatches and inspected the condition of the hull of the vessel. 25 In the case liability. This was confirmed by respondent appellate court thus — Respondent carrier's heavy reliance on the case of Home Insurance Co. a steel covers made it impossible for a person to open without the use of the ship's boom. pay for the wages of the different. by reason of the nature of their deterioration of the cargo was due to fortuitous event. actual or constructive. Thereafter. The stevedores unloaded the It is therefore imperative that a public carrier shall remain as such. 33 When M/V "Sun and hired by the shipowner. who are his servants. Indubitably. the steel pontoon hatches were closed and transporting goods indiscriminately for all persons. 28 cargo. however. common carriers are presumed to To our mind. with the duty of caring for his cargo when the charterer did not have any control of the means in doing so. the manning of the decks. At any rate. for we have observed that the growing concern for safety in the could open the same except in the presence of the owner of the cargo and the transportation of passengers and /or carriage of goods by sea requires a more exacting interpretation of representatives of the vessel (TSN. 27 Plum" docked at its berthing place. its officers and compliment were under the employ of the shipowner and therefore bonds. then covered with three (3) layers of serviceable tarpaulins which were tied with steel the ship captain. Moreover. by clear and convincing proof. for whosoever alleges damage to or deterioration of the goods carried has the onus of proving that the cause was the negligence of the carrier. including the master and the crew. the burden of proof shifts to respondent to prove that he has exercised extraordinary diligence required by law or that the loss. it is difficult to find a valid distinction between cases in which a charterer for a fixed period of time. contrary to the trial court's finding. 20 July 1977. and in the presence of a representative of the shipowner. same grounds for imposing a strict responsibility exist. 24). But where her services only are let. . The master and the crew are in each case his servants. . and. This is evident in the present case considering that the steering of the ship. the freighter in each case Upon the other hand. the person or consignee should first prove the fact of shipment and its consequent loss or damage while the same was in corporation offering such service is a private carrier. in the case of loss. representatives of the consignee boarded. v. the shipowner to supply the ship's stores. the determination of the course of the voyage and other technical It was also shown during the trial that the hull of the vessel was in good condition. and defray the expenses for the maintenance of the ship. 14). whether he is employed by one or many. as in a bareboat or demise that a common carrier becomes private. no such presumption applies to private carriers. the learned barrister-at-law 30 — possession and consequent control over its navigation. and the same difficulty in discovering the truth as to what has taken carrying goods or transporting passengers or both for compensation as a public employment and not as a place arises . either for a determinate period of time or let to a charterer. the master and the crew. destruction or deterioration of the goods. the presumption of negligence on the part of the respondent carrier has been efficaciously retains possession and control of the ship. When petitioner chartered the vessel M/V "Sun Plum". the exercise of ordinary diligence in the carriage of goods will suffice. the foreman. although her holds may. the prima have been at fault or to have acted negligently. Particularly. the case is for a single or consecutive voyage. that the ship chartered by a single shipper to carry special cargo is not a common carrier.

The period during which private respondent was to observe the degree of diligence required of it as a The Court notes that it was in the month of July when the vessel arrived port and unloaded her cargo. all the seals were found to be their report to PPI was just an approximation or estimate made by them after the fertilizer was discharged intact (TSN. nitrogen and ammonia do not normally evaporate even on a long voyage. who also testified that it was windy at the waterfront and along the shoreline where destination and its hull was reexamined by the consignee. described Urea as a chemical compound consisting mostly of ammonia and carbon monoxide compounds which are used as fertilizer. some of its particles dissolve. as it is hereby DISMISSED. no proof was adduced by the petitioner showing that the carrier was remise in the exercise of Article 1734 of the New Civil Code provides that common carriers are not responsible for the loss. or its daterioration in value. Chupungco further added that in unloading fertilizer in bulk with the use of a clamped shell. However. destruction or deterioration of the goods if caused by the charterer of the goods or defects in the packaging or in the containers. stowing. It public carrier began from the time the cargo was unconditionally placed in its charge after the vessel's rained from time to time at the harbor area while the cargo was being discharged according to the holds were duly inspected and passed scrutiny by the shipper. the petition is DISMISSED. limitation clause agreed upon by the parties in the Addendum to the standard "GENCON" time charter- party which provided for an F. This may be gleaned from the testimony of the marine and cargo surveyor of CSCI who supervised the unloading. The evidence of respondent carrier also showed that it was highly improbable for sea water to seep into the vessel's holds during the voyage since the hull of the vessel was in good condition and her hatches were tightly closed and firmly sealed. shall be for the account and risk of the shipper. losses due to spillage during such operation amounting to one percent (1%) against the bill of lading is deemed "normal" or "tolerable. free from all risk and expense to the carrier. Also. 36 deterioration. shall be liable for the loss and damage resulting from the preceding causes if it is proved. accidents is incumbent upon the carrier. making the M/V "Sun Plum" in all respects seaworthy to carry the cargo she was chartered for. due diligence in order to minimize the loss or damage to the goods it carried. or when it comes in contact with water. but prior to unloading. The dissipation of quantities of fertilizer. The probability of the cargo being damaged or getting mixed or contaminated with foreign particles was made greater by the fact that the fertilizer was transported in "bulk. But the salvaged portion which is in liquid form still remains potent and usable although no longer saleable in its original market value. force majeure. not when the same carrier has sufficiently proved the inherent character of the goods which makes it highly vulnerable to is done by the consignee or stevedores under the employ of the latter. Mr. nonetheless." thereby exposing it to the inimical effects of the elements and the grimy condition of the various pieces of equipment used in transporting and hauling it. and that proof of these Regional Trial Court. 38 SO ORDERED. If there was loss or contamination of the cargo. respondent done by stevedores employed by him. we agree with respondent carrier that bulk shipment of highly soluble goods like fertilizer carries cargo was to be done by the charterer.I. Clearly. persons. it was more likely to have occurred while the same was being transported from the ship to the dump trucks and finally to the consignee's warehouse. 98623 of the then Court of the First Instance. More so. which reversed the which the goods may suffer during the transportation by reason of fortuitous event. Respondent carrier presented a witness who testified on the characteristics of the fertilizer shipped and the expected risks of bulk shipping. the wind tends to blow away some of the materials during the unloading process. or the trial court. On the other hand. a with it the risk of loss or damage. as well as the inadequacy of its packaging which further contributed to the loss. The assailed decision of the Court of Appeals. either fresh or saline. He explained that the 18 M/T of alleged "bar order cargo" as contained in . is AFFIRMED. The Code of Commerce also provides that all losses and deterioration WHEREFORE. shipowner is liable for damage to the cargo resulting from improper stowage only when the stowing is as was the case at bar. Estanislao Chupungco. Consequently. When Urea is drenched in water. 37 The carrier. that the loading. a chemical engineer working with Atlas Fertilizer. open these hatches. and therefore under his control and supervision. This is a risk the shipper or the owner of the goods has to face. Mr.S. from the vessel and segregated from the rest of the cargo. provided that the temperature inside the hull does not exceed eighty (80) degrees centigrade. 15-16) (emphasis supplied). This is clear from the the dump trucks passed enroute to the consignee's warehouse. 20 July 1977. as against him. Urea also contains 46% nitrogen and is highly soluble in water. now inherent defect of the goods. meaning. trimming and discharge of the Indeed. Civil Case No. the seals would have to be broken.. 35 Moreover. is caused either by an extremely high temperature in its place of storage. up to and until the vessel reached its supply officer of PPI. during storage. with a variable weather condition prevalent during its unloading." The primary cause of these spillages is the clamped shell which does not seal very tightly. pp.O. of Manila should be. that they arose through his negligence or by reason of his having failed to take the precautions which usage has established among careful Costs against petitioner.

Cipriano representing Cipriano Trading Enterprise (CIPTRADE for short) entered into a hauling presumption conclusive against her. — In this case. COURT OF APPEALS and RODOLFO A. CIVIL LAW. There are very few instances when the presumption of negligence does in toto. 2. violence or force. AFFIDAVITS NOT CONSIDERED BEST EVIDENCE IF AFFIANTS AVAILABLE AS WITNESSES. ID. Her own failure to adduce sufficient proof of extraordinary diligence made the Rodolfo A. April 7. ID." This is a petition for review on certiorari of the decision ** of the Court of Appeals in "RODOLFO A. violence. 1993. he Civil Code defines a common carrier as "(a) person. REMEDIAL LAW. — In De Guzman vs. they are presumed to have been at fault or to have acted negligently if the goods are "PREMISES considered. JUDICIAL ADMISSIONS CONCLUSIVE. the best evidence if the affiants are available as witnesses." The test to determine a common carrier is "whether the given undertaking is a part of the business engaged in by the carrier which he has held out to the general public 7. In those cases where the presumption is applied." 1 not attach and these instances are enumerated in Article 1734. defendant-appellant. 4. Adriano & Gregorio for private respondent.. corporation or firm. J p: services or solicits business only from a narrow segment of the general population. violences or force. He who alleges a fact has the burden of proving it. HOW CARRIER ABSOLVED FROM SUPREME COURT LIABILITY. Any of the following or similar stipulations shall be considered unreasonable. the common carrier is presumed to have been at fault or negligent. robbers. petitioners. or of robbers who do not act with grave or irresistible threat. or association engaged in the himself was a witness as could be gleaned from the contents of the petition. water or air. . Thus. it held lease. for compensation. — Granting that as his occupation rather than the quantity or extent of the business transacted.. COMMON CARRIERS. HIJACKING OF GOODS. ID. ID. doing business under the name CIPRIANO TRADING ENTERPRISES plaintiff-appellee. private respondent need not introduce any evidence to prove her negligence.A. This is in accordance with Article 1745 of the Civil Code which provides: "Art. — While the 1. which is hereby affirmed lost. Costs against appellant. the general community or population. — Common G. . BASCOS. by land. petitioner herself has made the admission that she was in the trucking business. In referring to Article 1732 of the Civil Code. doing business under the name of BASCOS TRUCKING. 101089. and one who offers CAMPOS. episodic or unscheduled basis.e. Pelaez. CV No. OBLIGATIONS AND CONTRACTS. We think that Article 1732 deliberately refrained from making such distinctions. Judicial admissions are conclusive and no evidence is required to prove the same. SYLLABUS 6. DEFINED. he must prove that the robbers or the hijackers acted with grave or irresistible threat. the Supreme Court also held that: "Under Article 1745 (6) above.. destroyed or deteriorated. Court of Appeals is instructive. Neither does Article 1732 distinguished between a carrier offering its services to the "general public. Article 1732 also carefully avoids making any distinction between a person or enterprise offering transportation service on a regular or scheduled basis and one offering such service on an DECISION occasional. ID.. Accordingly. CIVIL LAW. CIPRIANO. (6) That the common carrier's liability for acts committed by thieves. DILIGENCE REQUIRED IN VIGILANCE OVER GOODS TRANSPORTED. The holding of the the said evidence were not self-serving. the common carrier must prove that it exercised extraordinary diligence in order to overcome the presumption . "grave or irresistible threat. TEST TO DETERMINE COMMON CARRIER.. ID. The presumption of negligence was raised against petitioner. vs.. ." . In the same case. .. CARRIER PRESUMED NEGLIGENT. offering her trucks to those with cargo to move..R. except where such thieves or robbers in fact acted "with grave of irresistible threat. violence of force. . WHEN PRESUMPTION MADE ABSOLUTE. WHEN PRESUMPTION OF ESTRELLITA M. Bascos for petitioner. CIPRIANO." C. was presented as evidence in court. ID.. the same were not sufficient to prove that the contract was one of Court in De Guzman vs. must be dealt with under the provisions of Article 1735 and thus. not being included in the Manila provisions of Article 1734." We believe and so hold that the limits of the duty of extraordinary diligence in the vigilance over the goods carried are reached where the goods are lost as a result of a robbery which is attended by ESTRELLITA M.000 m/tons of soya bean meal from Magallanes Drive. — Article 1732 of the affidavit of Juanito Morden. EVIDENCE.R. Affidavits are not considered business of carrying or transporting passengers or goods or both. Manila to the warehouse of Purefoods . Court of Appeals. It must be understood that a contract is what the law defines it to be and not what it is called by the thus: "The above article makes no distinction between one whose principal business activity is the carrying contracting parties. is dispensed with or diminished". — Petitioner presented no other proof of the existence of the contract of lease. contract 2 with Jibfair Shipping Agency Corporation whereby the former bound itself to haul the latter's 2." vs. . Republic of the Philippines 3. BURDEN OF PROOF RESTS WITH PARTY WHO ALLEGES A FACT. It was petitioner's burden to The facts.. of persons or goods or both. To exculpate the carrier from liability arising from hijacking. 1745. the truck helper in the hijacked truck. contrary to her assertion. JR. No. We find no reversible error in the decision appealed from. HOW PRESUMPTION OVERCAME. ID. Modesto S. and one who does such carrying only as an ancillary activity (in local idiom. respondents. unjust and contrary to public policy . or SECOND DIVISION force. a common carrier is held responsible — and will not be allowed to divest or to diminish such responsibility — even for acts of strangers like thieves or G." i. BASCOS. 25216. as a "sideline"). 5. offering their services to the public. are as follows: overcome it. as gathered by this Court.- NEGLIGENCE ARISES. the Court held that hijacking. CONTRACT IS WHAT LAW DEFINES IT TO BE. Del Pan. the dispositive portion of which is quoted hereunder: carriers are obliged to observe extraordinary diligence in the vigilance over the goods transported by them.

As a consequence of that failure.00 from the Manila Port Area to Calamba. 1986 only a small business. To carry out its obligation." 6 Agency the amount of the lost goods in accordance with the contract which stated that: Petitioner appealed to the Court of Appeals but respondent Court affirmed the trial court's judgment. with intent to defraud his creditors. hijacking and non- delivery or damages to the cargo during transport at market value. found that she admitted in her answer that she did business under the name A. that after preliminary investigation. that CIPTRADE was The respondent Court also adopted in toto the trial court's decision that petitioner was a common carrier. received the cargo consisting immediately reported to CIPTRADE and that petitioner and the police exerted all efforts to locate the of 400 bags of soya bean meal as evidenced by a cargo receipt signed by Maximo Sanglay. Cipriano filed a complaint for a sum of money and damages with writ of preliminary attachment 4 for breach of a "I. representing CIPTRADE. NEVERTHELESS. offering their services to the public.Corporation in Calamba. NAMELY. for compensation. which contained the following allegations: II. THAT THE FINDING OF THE RESPONDENT COURT THAT THE "4. THE RESPONDENT COURT ERRED IN HOLDING THAT THE CONTRACTUAL RELATIONSHIP BETWEEN PETITIONER contract of carriage.. That this action is one of those specifically mentioned in Sec. in holding that petitioner was a common carrier. judgment is hereby rendered in favor of plaintiff and against defendant ordering the latter to Bascos confirmed in his testimony his statement that the contract was a lease contract. The costs of the suit.000.00) as and for attorney's fees. Bascos Trucking. That the amount due to the plaintiff in the above-entitled case is above all legal counterclaims." The test to determine a common carrier is "whether the given undertaking is a part of the business engaged in by the carrier which he has held out to the general . The amount of ONE HUNDRED FIFTY-SIX THOUSAND FOUR HUNDRED FOUR PESOS (P156. water or air. 1." III. and the fact that control of the filed against Jose Opriano. or is about to do so. offering her trucks for lease to those 1. Paco. and Article 1732 of the Civil Code defines a common carrier as "(a) person.000. that the hijacking was common carrier: the fact that the truck driver of petitioner. Laguna. . she said that she does business under the same style of A. liable to petitioner in the amount of P11. petitioner interposed the following defenses: that there was no contract of carriage since the presentation by private respondent. 1987. She cited as evidence certain affidavits which referred to the contract as "lease". was lease of the truck. Rule 57 the Rules of Court. 10 She also stated pay the former: that: she was not catering to the general public. 1988.00 per metric ton. the fact that hijacked properties. We agree with the respondent Court in its finding that petitioner is a common carrier. corporation or firm. That there is no sufficient security for the claim sought to be enforced by the present action. the trial court rendered a decision *** the dispositive portion of which reads as follows: alleged in this petition that the contract between her and Rodolfo A. Manila on the night of October 21. namely: IS CORRECT. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT PETITIONER'S MOTION TO DISSOLVE/LIFT THE WRIT OF PRELIMINARY ATTACHMENT HAS BEEN RENDERED MOOT AND ACADEMIC BY THE DECISION OF THE MERITS OF THE CASE. GRANTING. she After trial. that the truck carrying the cargo was Moreover. engaged in the business of carrying or transporting passengers or goods or both. to wit: Cipriano demanded reimbursement from petitioner but the latter refused to pay. . exculpated petitioner from cargo was placed in petitioner's care. in her answer to the amended complaint. "(e) in an action against a party who has removed or disposed of his property. Maximo Sanglay. "1. both courts appreciated the following pieces of evidence as indicators that petitioner was a hijacked along Canonigo St. petitioner filed this petition where she makes the following assignment of errors. Cipriano paid Jibfair Shipping SO ORDERED. The petition presents the following issues for resolution: (1) was petitioner a common carrier?. et al.404." 3 Consequently. Bascos Trucking and that said admission dispensed with In her answer. Petitioner failed to deliver the said cargo. . Laguna at the rate of P50. 9 She further averred that Jesus "WHEREFORE.00 for loading the cargo. and that hijacking. CIPTRADE. Cipriano. CIPTRADE shall be held liable and answerable for any loss in bags due to theft. an information for robbery and carnapping were the truck helper. was also an employee of petitioner. Rodolfo Cipriano. EX GRATIA ARGUMENTI. Eventually. Thus.00) as an (sic) who have cargo to move. CIPTRADE leased her cargo truck to load the cargo from Manila Port Area to Laguna.M. These affidavits were made by Jesus Bascos 8 and by petitioner herself.. The amount of FIVE THOUSAND PESOS (P5. through Rodolfo Cipriano. of proofs that petitioner was a common carrier. In disputing the conclusion of the trial and appellate courts that petitioner was a common carrier. IT ERRED IN FINDING PETITIONER LIABLE THEREUNDER BECAUSE THE LOSS OF THE CARGO WAS DUE TO FORCE MAJEURE. HIJACKING. 2." 7 5.M. or association 3. 1987 filed by defendant is subcontracted with Estrellita Bascos (petitioner) to transport and to deliver 400 sacks of soya bean meal DENIED for being moot and academic. worth P156. and (2) was 6. being a force majeure.404. Juanito Morden. whereby a CONTRACTUAL RELATIONSHIP BETWEEN PETITIONER AND PRIVATE RESPONDENT WAS CARRIAGE OF GOODS writ of preliminary attachment may lawfully issue. The "Urgent Motion To Dissolve/Lift preliminary Attachment" dated March 10. any liability to CIPTRADE. The Court of Appeals." the hijacking referred to a force majeure? The trial court granted the writ of preliminary attachment on February 17. The prayer for a Writ of Preliminary Attachment was supported by an affidavit 5 AND PRIVATE RESPONDENT WAS CARRIAGE OF GOODS AND NOT LEASE OF CARGO TRUCK. not to the general public but to a few customers only in view of the fact that it is for actual damages with legal interest of 12% per cent per annum to be counted from December 4. 11 until fully paid. by land.

" with cargo to move. 1745. 25 dismissed them as self-serving and petitioner contests the conclusion. 16 The presumption of negligence was raised against petitioner. While it had been admitted in court for lack of objection on the part of private respondent. violences or force. This is in accordance with Article 1745 of the Civil Code which provides: "Art. contrary to her assertion." "The above article makes no distinction between one whose principal business activity is the carrying of To establish grave and irresistible force. We affirm the holding of the respondent court that the loss of the goods was not due to force conclusive against her. Thus. We are bound by the appellate The subsequent filing of the information for carnapping and robbery against the accused named in said court's factual conclusions. negligently if the goods are lost. was presented as evidence in court. 15 Furthermore. xxx xxx xxx . and one who offers services or solicits respondent Court had discretion in assigning weight to such evidence.e. offering her trucks to those grave or irresistible threat. private respondent need not introduce any evidence to prove her negligence. a common carrier is held responsible — and will not be allowed to divest or the presentation of affidavits by petitioner where the transaction was referred to as a lease contract. Court of Appeals 14 is instructive. Article 1732 also carefully avoids making any distinction between a person or enterprise offering have concluded that these affidavits were not enough to overcome the presumption. The extraordinary diligence in order to overcome the presumption. both the trial and appellate courts have the petition. both the trial court and the Court of Appeals "sideline"). the common carrier is presumed to have been at fault or negligent. destroyed or deteriorated. is dispensed with or diminished. must be dealt with under the provisions of Article 1735 and thus. To exculpate the carrier from liability arising from hijacking. it is Our opinion that the petitioner's claim cannot be sustained. We are not to determine the probative value of refrained from making such distinctions. 21 the Supreme Court also held that: But petitioner argues that there was only a contract of lease because they offer their services only to a select group of people and because the private respondents. not being included in the provisions of Article 1734. petitioner presented no other proof of the existence of the contract of lease. violence or force. violence or force. Petitioner's affidavit transportation service on a regular or scheduled basis and one offering such service on an occasional. Secondly. the affidavit of Jesus Bascos did not dwell on how the hijacking took place. the same were not affidavits did not necessarily mean that the contents of the affidavits were true because they were yet to sufficient to prove that the contract was one of lease. limits of the duty of extraordinary diligence in the vigilance over the goods carried are reached where the In referring to Article 1732 of the Civil Code. Any of the following or similar stipulations shall be considered unreasonable. 18 There are very few instances when the presumption of negligence does not attach and these instances are enumerated in Article 1734. Her own failure to adduce sufficient proof of extraordinary diligence made the presumption Likewise. It was petitioner's burden to overcome it. he himself was a witness as could be gleaned from the contents of Regarding the affidavits presented by petitioner to the court. Affidavits are not considered the best evidence if the affiants are available as witnesses. We find no reason Common carriers are obliged to observe extraordinary diligence in the vigilance over the goods to disturb the conclusion that the motion to lift/dissolve the writ of preliminary attachment has been transported by them. 13 In the same case." 12 In this case. 22 Jesus Bascos' persons or goods or both. We believe and so hold that the Regarding the first contention. granting that the said evidence were not self-serving. he must prove that the robbers or the hijackers acted with grave or irresistible threat. Neither does Article 1732 distinguish between a carrier offering its services account. about the hijacking was based on what had been told her by Juanito Morden. law defines it to be and not what it is called by the contracting parties. 19 In those cases where the presumption is applied. did not object to "Under Article 1745 (6) above. We think that Article 1732 deliberately the appellate court. for the loss of the cargo. petitioner alleged that hijacking constituted force majeure which exculpated her from liability SO ORDERED." i. it held thus: goods are lost as a result of a robbery which is attended by "grave or irresistible threat. 17 Accordingly. the common carrier must prove that it exercised In the light of the foregoing analysis. or of robbers who do not act with petitioner herself has made the admission that she was in the trucking business.. or force. In a petition for review on certiorari. the holding of the Court in De Guzman vs. (6) That the common carrier's liability for acts committed by thieves. It was not a first-hand episodic or unscheduled basis. the truck helper in the hijacked truck. 23 and Juanito Morden's 24 "Salaysay". petitioner presented her accusatory affidavit.public as his occupation rather than the quantity or extent of the business transacted." evidence but to resolve questions of law. Thirdly. petition is DISMISSED and the decision of the Court of Appeals is hereby AFFIRMED. However. the to the "general public. 20 the Court held that hijacking. In this case. In De Guzman vs. and one who does such carrying only as an ancillary activity (in local idiom. Having affirmed the findings of the respondent Court on the substantial issues involved. Yet. violence. unjust and contrary to public policy. Court of Appeals. to diminish such responsibility — even for acts of strangers like thieves or robbers except where such thieves or robbers in fact acted with grave or irresistible threat. the general community or population. We are bound by the conclusion of business only from a narrow segment of the general population. Judicial admissions are conclusive and no evidence is required to prove the same. It must be understood that a contract is what the be determined in the trial of the criminal cases. they are presumed to have been at fault or to have acted rendered moot and academic by the decision on the merits. while the affidavit of Juanito Morden. He who alleges a fact has the burden of proving it. as a affidavit. plaintiffs in the lower court. majeure.

R.000. 1976 until the same shall have been fully paid. x x x x x x. 1993 Decision of the Court of Appeals. December 12. No. Laydays/Cancelling: July 26. wastage in capacity that its owner. premises considered. x x x (Underscoring supplied). Vlasons Shipping.T. The RTC disposed as follows: 6.000. carriage and preservation. petitioner. respondents. and losses/damages except on proven willful negligence of the officers of the vessel. xxx. the Court of Appeals ruled: xxxxxxxxx WHEREFORE. Except as Party which stands for Freight In and Out including Stevedoring and Trading. equipped and supplied and to make shipment for the general public. The sum of P75. xxx. both of which assail the August 12. 1974. On the other hand. Charterers to load. xxx. perils. x x x x x x reiterates the well-known rule that findings of facts of trial courts. DECISION PANGANIBAN. plaintiff National Steel Corporation (NSC) as Charterer and defendant Vlasons [G. respondents.00 and deleting the award for attorneys fees and expenses of litigation. of Appeals modified the decision of the Regional Trial Court of Pasig.00/P4. [2] Party Agreement shall form part of this Contract. petitioner. Under Paragraph 5 of the NANYOZAI Charter Party. December 12. vs. Its services are available only to specific persons who enter into a special the holds and all other parts of the vessel in which cargo is carried. the decision is AFFIRMED.. Other terms:(a) All terms/conditions of NONYAZAI C/P [sic] or other internationally recognized Charter SO ORDERED.00 as unpaid freight and P88.000. 5.500 MT. Cargo Insurance: Charterers and/or Shippers must insure the cargoes.. exercise due diligence to make the vessel seaworthy and properly manned. The Case 4. loading and unloading of the cargoes are the responsibility of the Charterer. Metro Manila. (VSI). [1] The Court 5.. equipped and supplied and The Facts to make the holds and all other parts of the vessel in which cargo is carried. 10% more or less at Masters option. dangers and accidents of the sea or other navigable waters. when affirmed by the Court of Appeals. does not transport cargo or vessel seaworthy.00 as demurrage with interest at the 8. vs. Sundays and Holidays Included). under the following terms and conditions.000. Owners shall not be liable for loss of or damage of the cargo arising or resulting from: unseaworthiness unless caused by want of due diligence on the part of the owners to make the The MV Vlasons I is a vessel which renders tramping service and. 9.S. which is used in the shipping business is a standard provision in the NANYOZAI Charter demurrage to P44. It is undisputed that the ship is a private carrier. Shipowners not responsible for 2. There is no pronouncement as to costs. CORPORATION. insufficiency of packing. 1974. FIOST basis. entered into a contract of affreightment or contract of bulk or weight or any other loss or damage arising from inherent defect. 1974/Aug. City and discharge them at North Harbor. Inc. 1997] VLASONS SHIPPING. 112350. The facts as found by Respondent Court of Appeals are as follows: . which means that the thus modified. carriage contract of charter party with its owner.000. J.: 2. it states.000. Inc. 112287. 3. (VSI) as Owner. and to secure that the vessel is properly manned. voyage charter hire with National Steel Corporation. are binding on this Court. fit and safe for its reception. SO ORDERED. THIRD DIVISION (1) On July 17. The Court finds occasion to apply the rules on the seaworthiness of a private carrier. No. before and at the beginning of the voyage. Cost of suit. whereby NSC hired VSIs vessel. handling. 23317.R.00 /metric ton. Cargo: Full cargo of steel products of not less than 2. entered into a Contract of Voyage Charter Hire (Exhibit B. 1. INC. Attorneys fees and expenses of litigation in the sum of P100. latent defects not discoverable by due diligence. stow and discharge the cargo free of risk and expenses to owners. its owners responsibility for damage to the cargo and its liability for demurrage and attorneys fees. 1997] Shipping. WHEREFORE. also Exhibit 1) NATIONAL STEEL CORPORATION. Loading/Discharging Rate: 750 tons per WWDSHINC. any other cause arising without the actual fault or privity of Owners or without the fault of the agents or servants of owners. and ordering plaintiff to pay the defendant on the counterclaim as follows: 7. fit and safe for its reception. Freight/Payment: P30.The Court also 3. And it is in this and preservation. the MV VLASONS I to make one (1) voyage to load steel products at Iligan INC. 10. Inc. it is provided that (o)wners shall. Before us are two separate petitions for review filed by National Steel Corporation (NSC) and Vlasons Shipping. Manila. COURT OF APPEALS AND VLASONS SHIPPING.00. as such. Branch 163 in Civil Case No. quality or vice of the cargo. (Weather Working Day of 24 consecutive hours.I. Payment upon presentation of Bill of Lading within fifteen (15) days. COURT OF APPEALS AND NATIONAL STEEL 1. Demurrage/Dispatch: P8.00 per day. x x x x x x legal rate on both amounts from April 7. viz: [G. [3] Under paragraph 10 thereof. the decision appealed from is modified by reducing the award for The terms F.O. judgment is hereby rendered in favor of defendant and against the plaintiff dismissing the complaint with cost against plaintiff.

1). defendant claimed that it had complied with all its duties (3) The vessel arrived with the cargo at Pier 12. 1974. under the hatchboards were steel beams to give support.19 metric tons for carriage to cargo in Manila were negligent and did not exercise due care in the discharge of the cargo. It had all the required certificates of seaworthiness.481. the MV defendant VSI refused and failed to pay. in accordance with the Contract of Voyage Charter Hire. On August 31. NSC called for a survey of the shipment (b) That under their Voyage Charter Hire Contract. 4). and preservation -. defendant is not liable. Furthermore. The cargo was discharged and unloaded by stevedores hired by the Charterer. was due to the inherent defect. No. 1974.I.000. The vessel was on demurrage for eleven (11) days in Manila waiting (Exhibit G).T.677 skids of tinplates and 92 packages of hot defendant. 12).000. cargo was exposed to rain and seawater spray while on the pier or in transit from the pier to plaintiffs acting as agent of the vessel[. (Exhibit E) demands made by defendant. that the damage. and result of the act.L. it alleged the following counterclaim: agents. Mesa. The following day.P. 6). plaintiff claimed that it sustained losses in the aforesaid amount of P941. the MV VLASONS I encountered undertook the voyage. that tarpaulin hatch covers were noted torn at various extents.all in violation of defendants undertaking under their Contract of Voyage Charter Hire. subject voyage was the vessels first voyage after the drydocking. Chief Mate Gonzalo Sabando. causing strong winds and big waves to continuously pound against the vessel and seawater to overflow on its deck and hatch covers. 1974. equipped and supplied when it charter party. strong winds and adverse weather condition. was free of risk and expense in connection with the loading and discharging of the cargo. neglect and default of the master and crew in the management of the vessel as well as Certificate of Approval for Conversion issued by the Bureau of Customs (Exh. defendant shall not be responsible for losses/damages except on (d) The cargo/shipment was securely stowed in three (3) hatches of the ship. that container/metal casings of the skids were rusting all over. 1974 after incurring a delay of eleven (11) days due to the heavy rain which interrupted Charter Hire Contract. 23317. The evidence carrier inasmuch as she was under voyage charter contract with the plaintiff as charterer under the shows that the MV VLASONS I was seaworthy and properly manned.769 packages with a total weight of about 2. consequently. 1974.00 despite the unloading operations. if any. states.00.P. 5). Classification issued by an international classification society. . Thus. The shipment was placed in the three (3) hatches of the ship. Finally. the NIPPON KAIJI KYOKAI (Exh. 1974. the MV VLASONS I underwent drydocking in Cebu and was thoroughly inspected by the Philippine seaworthy in all respects for the carriage of plaintiffs cargo. on the basis of the aforesaid Report No. both while it was still for plaintiff to discharge its cargo from the vessel. Sta.Paragraph 12 of said NANYOZAI Charter Party also provides that (o)wners shall not be responsible for split. 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 (2) On August 6.T. that in the course of the voyage from Iligan City to Manila. Manila where the cargo was the total amount of P88.000. that said vessel was not a common Coast Guard. (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. (6) In its complaint. 1974. the NSCs shipment of 1. 8).00. Coastwise License from the Board of Transportation (Exh.000. Manila. North Harbor. The hatch covers were diligence and proper seamanship and were not willfully negligent. that furthermore the Voyage Charter water tight. and that the Manila. and that plaintiffs claim was highly speculative and grossly corresponding bill of lading. Then on October 3. Plaintiff filed its complaint against defendant on April 21.. plaintiff failed and refused to pay the agreed charter hire of P75. In a letter to the NSC dated March 17. Unloading was completed (a) That despite the full and proper performance by defendant of its obligations under the Voyage only on August 24. That being a vessel the want of due diligence on the part of the defendant to make the vessel seaworthy and to make the engaged in both overseas and coastwise trade. Party provides that loading and discharging of the cargo was on FIOST terms which means that the vessel chafing and/or any damage unless caused by the negligence or default of the master and crew. 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. It was also reported that MASCOs surveyors drew at random samples of bad order packing materials of (8) From the evidence presented by both parties. the were set forth in its decision: M. International Loadline Certificate from the Philippine Coast Guard (Exh. 1976 VLASONS I was covered by the required seaworthiness certificates including the Certification of which was docketed as Civil Case No. defendant denied liability for the alleged damage claiming that the MV VLASONS I was Hire. consequence of the heavy weather and rough seas encountered while en route to destination (Exhibit F).] acknowledged receipt of the cargo on board and signed the warehouse after discharge from the vessel.145. plaintiff formally demanded payment of said claim but (b) That for purposes of the voyage covered by the Contract of Voyage Charter Hire (Exh.00 per day for demurrage. that under the Contract of Voyage Charter Hire. (c) Before it proceeded to Iligan City to perform the voyage called for by the Contract of Voyage Charter (7) In its answer. 9). very rough seas. In turn. B. 1770. Rizal. 0233 (Exhibit D) on August 8. CFI. The hatch openings were proven willful negligence of the officers of the vessel. the MV VLASONS I has a higher degree of seaworthiness holds and all other parts of the vessel in which the cargo was carried. that the stevedores of plaintiff who discharged the rolled sheets or a total of 1. when the vessels three (3) hatches containing the shipment were opened by plaintiffs plaintiff.I. 1975 of P8. fit and safe for its reception. and obligations under the Voyage Charter Hire Contract and had no responsibility whatsoever to August 13. taken and stored. plaintiff should be ordered to pay tinplates was caused by contact with SEA WATER sustained while still on board the vessel as a defendant attorneys fees and all expenses of litigation in the amount of not less than P100.145. 7 and 8. 1974. Cargo Ship Safety Equipment Certificate also from the Philippine Coast Guard (Exh. carriage and safety. MASCO ventured the opinion that rusting of the (c) For filing a clearly unfounded civil action against defendant. The analysis of bad order samples of packing materials xxx shows that wetting was caused by contact with SEA WATER. (5) On September 6. 1770 (Exhibit I) which in part. (4) To determine the nature and extent of the wetting and rusting. plaintiff was liable to pay defendant demurrage in on board the vessel and later at the NDC warehouse in Pureza St.18. Testing Laboratories issued Report No. plaintiff had agreed to pay defendant the sum by the Manila Adjusters and Surveyors Company (MASCO). nearly all the skids of tinplates and hot rolled sheets were allegedly found to be wet and rusty. Certificate of Inspection by the Philippine Coast Guard (Exh. the MV VLASONS without the actual fault or privity of defendant and without the fault of the agents or servants of I loaded at plaintiffs pier at Iligan City. plaintiff filed with the defendant its claim for damages suffered due to the downgrading of the damaged tinplates in the amount of P941. Ship Radio Station License (Exh. that the officers of said MV VLASONS I exercised due covered by hatchboards which were in turn covered by two or double tarpaulins. MASCO made a report of its ocular inspection conducted on the cargo.18 as a 7). In fact. Testing Laboratories for analysis. the trial court came out with the following findings which the tinplates and delivered the same to the M. on August 12. MASCO reported that it found wetting and rusting of the packages of hot rolled sheets and metal covers of the tinplates.

II . to VSI. there is unrebutted testimony III of witness Vicente Angliongto that tinplates sweat by themselves when packed even without being in The trial court erred in finding that the stevedores hired by NSC were negligent in the unloading of NSCs contract (sic) with water from outside especially when the weather is bad or raining.e. It was shown as claimed by plaintiff that the The trial court erred in exempting VSI from liability on the ground of force majeure. In a Resolution[5] dated October 20. Thus plaintiff was able to ship high grade cargo at a lower freight rate.000.[4] 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.000. and that there is no proof of willful negligence of the vessels officers. presumption of negligence in case of loss or damage to the cargo are not applicable. tinplates themselves were wrapped in kraft paper lining and corrugated cardboards could not be affected by water from outside. Whether or not the alleged seaworthiness certificates (Exhibits 3. sweat or moisture on the tinplates may be considered as a loss or damage but then. steel bars. these petitions. Whether or not a charterers failure to insure its cargo exempts the shipowner from liability for cargo damage. 11 and 12) demands. NSC and VSI filed their respective petitions for discharging of the cargo is the sole responsibility of the plaintiff charterer and defendant carrier has no review before this Court. properly manned. 8. rainwater demurrage from P88. On motion of VSI.[8] NSC raises the following questions of law and fact: (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. 1. Antonio C. and the cargoes. As to the damage to the tinplates which was allegedly due to the wetting and rusting thereof. NSC alleged six errors: I Questions of Fact The trial court erred in finding that the MV VLASONS I was seaworthy. stowing and the appellate court denied both motions. Plaintiff has not paid the total freight due of P75.(e) The claim of the plaintiff that defendant violated the contract of carriage is not supported by The trial court erred in finding that the rusting of NSCs tinplates was due to the inherent nature or character evidence. 5. The rust caused by shipment. Whether or not a charterer of a vessel is liable for demurrage due to cargo unloading delays (I) As regards defendants counterclaim. caused by weather interruption. All the 1. 3. 9. i. Dumlao) filed a Marine Protest on August 13. It was proven that the stevedores merely set up temporary tents The trial court erred in ordering NSC to pay freight.769 skids of the tinplates could not have been damaged by water as claimed by plaintiff. 1993. Appealing the RTC decision to the Court of Appeals.000.00 to P44. angular bars and the like but also tinplates Questions of Law and hot rolled sheets which are high grade cargo commanding a higher freight. V The trial court erred in finding that NSC violated the contract of voyage charter hire.00. In its petition[7] and memorandum. the loading. The evidence also showed that the plaintiff was required and bound under paragraph 7 of the were admissible in evidence and constituted evidence of the vessels seaworthiness at the same Voyage Charter Hire contract to pay demurrage of P8.00 and deleting the award of attorneys fees and expenses of drifted into the cargo through the hatch openings. defendant cannot be held liable for it pursuant to Article 1734 of the Civil Case which exempts the carrier from responsibility for IV loss or damage arising from the character of the goods x x x. the Court of Appeals modified the decision of the trial court by reducing the stevedores during the discharging and unloading operations which were interrupted by rains. Had plaintiff complied with the requirement. Whether or not the vessel was seaworthy and cargo-worthy. Plaintiff also violated the charter party contract when it loaded not only steel products. equipped and supplied. Party which was expressly made part of the Contract of Voyage Charter Hire.000. The delay amounted to eleven (11) days thereby making plaintiff liable to pay defendant for demurrage in the amount of P88. NSC and VSI filed separate motions for reconsideration. 4. the Court ordered on February 14. 1994 the consolidation of liability for whatever damage may occur or maybe [sic] caused to the cargo in the process. 1974 (Exh. 6. 7.00 per day of delay in the unloading of beginning of the voyages. Because of this improper covering of the hatches by the As earlier stated. then it could have recovered its loss or damage from the insurer. 1. Pursuant to paragraph 5 of the NANYOSAI [sic] Charter litigation. Undaunted.[6] (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. demurrage and attorneys fees. the contract of voyage charter hire under paragraph 4 thereof.00 despite 2. (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 VI allowing rainwater to enter the hatches.000. 15) which can be invoked by The Issues defendant as a force majeure that would exempt the defendant from liability. fixed the freight at P30. The provisions of the Civil Code on common carriers pursuant to which there exists a of the goods and not due to contact with seawater.00 per metric ton payable to defendant carrier upon presentation of the bill of lading within fifteen (15) days.

Effect of NSCs Failure to Insure the Cargo responsible for losses except on proven willful negligence of the officers of the vessel. water. vs. Questions of Fact It is clear from the parties Contract of Voyage Charter Hire. or air.000. are determined primarily by stipulations in their contract of private attorneys fees and expenses of litigation. further provided that the 3. [14] Consequently. fit and safe for its reception. Whether or not the provisions of the Civil Code of the Philippines on common carriers pursuant to which does not involve the general public. Generally. although not the only form of tinplates. [18] The NANYOZAI Charter Party also provided that [o]wners shall not be responsible for split. The resolution of this preliminary question determines the law. The respondent Court of Appeals committed an error of law in reducing the award of demurrage the Regional Trial Court. including their respective B. chafing and/or any The Courts Ruling damage unless caused by the negligence or default of the master or crew. the parties may freely stipulate their duties and obligations which perforce would be binding on them. Court of Appeals and Seven Brothers Shipping Corporation. The respondent Court of Appeals committed an error of law in deleting the award of P100. 4.. corporations. Inc. The most typical. Consequently. it is undisputed that VSI did not offer its services to the general public. standard of diligence and This view finds further support in the Code of Commerce which pertinently provides: burden of proof applicable to the present case. and to make the holds and all other parts of the vessel in which cargo [was] carried. [15]Recently. the burden of proof was placed on NSC by the parties agreement. Demurrage and Attorneys Fees. are valid and binding on both contracting parties. which was incorporated in the parties contract of transportation. NSC must prove that the damage to its shipment was caused by VSIs willful negligence or failure to exercise due diligence in making MV Vlasons I seaworthy and fit for holding. private carriage. in Valenzuela Hardwood and Industrial Supply. unless the same was caused by its lack of due diligence to make the vessel seaworthy or to ensure that the same was properly manned.00 to P44. carriage and preservation. it is essential to establish whether VSI contracted with NSC as a common carrier or as a private carrier. carriage or charter party. Hence. Whether or not NSCs cargo of tinplates did sweat during the voyage and. provided it has space. private carriage I. It has been held that the true test of a common carrier 3. is the charter party. for compensation. Extent of VSIs Responsibility and Liability Over NSCs Cargo The foregoing issues raised by the parties will be discussed under the following headings: 1. [13] As correctly concluded by the Court of Appeals. Unlike in a contract involving a common carrier. the stringent provisions of the Civil Code on common carriers there exist[s] a presumption of negligence against the common carrier in case of loss or damage to the protecting the general public cannot justifiably be applied to a ship transporting commercial goods as a cargo are applicable to a private carrier. [9] VSI submits for the consideration of this Court the following alleged errors of shipowner. and transportation service for a fee. for all who opt to avail themselves of its their own. engaged in the business of carrying or transporting passengers or goods or both. Whether or not vessels officers and crew were negligent in handling and caring for NSCs Article 1732 of the Civil Code defines a common carrier as persons. . [11] A carrier which does not qualify under the above test is deemed a private carrier. a maritime contract by which the charterer. equipped and supplied. the MV Vlasons I was not a common but a private carrier. rusted on is the carriage of passengers or goods. 1974.000. the rights and obligations of VSI and NSC. dated July 17. private carriage is undertaken by special agreement and the carrier does not (4) Whether or not NSCs stevedores were negligent and caused the wetting[/]rusting of NSCs hold himself out to carry goods for the general public.00. offering their services to the public. by land.000 for liability for damage to the cargo. Ineluctably. firms or associations cargo. except in respect of the demurrage. The NANYOZAI Charter Party. a party other than the In its separate petition. As found by A. private carrier. it carried passengers or goods only for those it chose under a special contract of from P88. charter party. Whether or not the terms and conditions of the Contract of Voyage Charter Hire. Burden of Proof Preliminary Matter: Common Carrier or Private Carrier? In view of the aforementioned contractual stipulations. hence. At the outset. obtains the use and service of all or some part of a ship for a period of time or a voyage or the CA: voyages. 2. that VSI shall not be 2.[19] The Court affirms the assailed Decision of the Court of Appeals. VSI raises the following issues in its memorandum: [10] x x x in a contract of private carriage. the public policy embodied therein is not contravened by stipulations in a charter party that lessen or remove the protection given by law in contracts involving common carriers. carrying and safekeeping the cargo. [12] In the instant case.[17] II. Admissibility of Certificates Proving Seaworthiness shipowner shall not be liable for loss of or damage to the cargo arising or resulting from unseaworthiness. [16] the Court ruled: Amplifying the foregoing. including the Nanyozai Charter.

After a thorough review of the case at bar. [27] We disagree. The preceding article if proofs against him show that they occurred on account of his negligence or his findings of the trial court were subsequently affirmed by the Court of Appeals. do not alter the burden of proof which remains on plaintiff. The burden of proof of these accidents is on the carrier. and the fact that the goods were lost or damaged while in the carriers custody does not put the burden of proof on the carrier. (2) whether the damage to the cargo should be attributed to the willful negligence of the officers and crew of the vessel or of the stevedores hired by NSC. However. the NSC had the burden of proving that the damage to the cargo was caused by the negligence of the officers and the crew of MV Vlasons I in making their vessel seaworthy and fit for the Where the action is based on the shipowners warranty of seaworthiness. 1974. 361. such inferences and presumptions. and. we find no reason to disturb the lower courts factual findings. the carrier has the preliminary burden of proving the exercise of due the Court of Appeals for failing to consider such claim as an uncontroverted fact [26] and denies that MV diligence to make the vessel seaworthy. after citing Clause 10 the new one used primarily to make the ships hatches watertight. The carrier. the burden is on the plaintiff to prove that the carrier was negligent or unseaworthy. as indeed NSC has not successfully proven the application of any of the aforecited exceptions. unless the shipper committed fraud in of both the trial court and the Court of Appeals coincide. cargo while in the carriers possession does not cast on it the and equipped. loaded with approximately 2. The salient portions of said marine protest read: miserably failed to comply with any of these obligations as if defendant-appellee [VSI] had the burden of proof. 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. fitted plaintiff and proof of loss of. or damage to. NSC relies heavily on its claim that MV Vlasons I had used an old and torn tarpaulin or seaworthiness. The Philippine Coast Guard Station in Cebu cleared it as seaworthy. shall be liable for damages arising from the cause mentioned in the opportunity to hear the parties conflicting claims and to carefully weigh their respective evidence. which had the firsthand Art. raised before this Court in a petition for review under Rule 45 of the Rules of Court. force majeure. the determination of the following factual questions is manifestly event. However. [24] The vessels voyage from Iligan to Manila was the vessels first the goods committed to its care. it met all requirements for trading as cargo vessel. [22] We stress the bill of lading. [25] The Court of Appeals itself sustained burden of proving proper care and diligence on its part or that the loss occurred from an excepted cause the conclusion of the trial court that MV Vlasons I was seaworthy. only in addition to in relation to the question of who has the burden of proof. the burden of proving a breach carriage of tinplates. or the nature and inherent defect of the things.not questions of fact -. Where the factual findings omission to take the precautions usually adopted by careful persons. NSC failed to discharge this burden. however. [23] only questions of law -. Because the MV Vlasons I was a private carrier. and (3) whether the rusting of the tinplates was caused by its own sweat or by contact with seawater. that . in discharging the burden of proof. or injury to. These questions of fact were threshed out and decided by the trial court. plaintiff is entitled to the this finding of both the trial and the appellate courts. as a general rule. the damage and impairment suffered by the goods during the transportation. thereof and that such breach was the proximate cause of the damage rests on plaintiff. Antonio C. the burden of going forward with the evidence is again on plaintiff. As noted earlier. Thus. places the prima facie presumption of negligence on a common carrier. Clause 12 is not even correct). the law requires that it come forward with the information available to it. Therefore. shall be for the account and risk of relevant: (1) whether VSI exercised due diligence in making MV Vlasons I seaworthy for the intended the shipper.[21] x x x That the M/V VLASONS I departed Iligan City or or about 0730 hours of August 8. cargo. the same are binding on this Court. We find no reason to modify or reverse in the contract or bill of lading. the Court of Appeals correctly found that NSC has not taken the correct position The records sufficiently support VSIs contention that the ship used the old tarpaulin. 10-11). and proof that the goods were lost or damaged while in the carriers possession does not cast on it the burden of proving Before us. due to fortuitous Based on the foregoing. the shipowners obligations are governed by the foregoing provisions of the Code of Commerce and not by the Civil Code which. Dumlao.may be really were. the burden of proving negligence or a breach of that duty rests on voyage after drydocking. [20] Vlasons I was equipped with new canvas covers in tandem with the old ones as indicated in the Marine Protest xxx.487. It is a hornbook doctrine that: Was MV Vlasons I Seaworthy? In an action against a private carrier for loss of. making him to believe that the goods were of a class or quality different from what they that.9 tons of steel plates and tin plates consigned to National Steel Corporation. subject to some exceptional instances. In any event. The foregoing are clear from the marine and Clause 12 of the NANYOZAI Charter Party (incidentally plaintiff-appellants [NSCs] interpretation of protest of the master of the MV Vlasons I. the records reveal that VSI exercised due diligence to make the ship seaworthy and fit for the carriage of NSCs cargo of steel and tinplates. in its brief (pp. benefit of the presumptions and inferences by which the law aids the bailor in an action against a bailee. In the instant case. This is shown by the fact that it was drydocked and inspected by the Philippine Coast Guard before it proceeded to Iligan City for its voyage to Manila under Since x x x a private carrier is not an insurer but undertakes only to exercise due care in the protection of the contract of voyage charter hire. 362. while they Who Were Negligent: Seamen or Stevedores? may affect the burden of coming forward with evidence. it argues that a careful examination of the evidence will show that VSI Jose Pascua. It faults not discoverable by due diligence. and the deposition of the ships boatswain. and its failure to do so warrants an inference or presumption of its liability. purpose under the charter party.Art. where the carrier comes forward with evidence explaining the loss or damage. Merchandise shall be transported at the risk and venture of the shipper. x x x Where the contract of carriage exempts the carrier from liability for unseaworthiness canvas to cover the hatches through which the cargo was loaded into the cargo hold of the ship. if the contrary has not First Issue: Questions of Fact been expressly stipulated.

677 skids of tinplates and 92 packages of hot rolled opening. sir. A: Forty-five feet by thirty-five feet. ATTY DEL ROSARIO was clearly inadequate for keeping rain and seawater away from the hatches of the ship. 1974. sir. upon my arrival at the vessel. is there any other material there to cover the hatch? Q: Now. 1974. that while approaching Fortune Island. an officer of VSI. fully equipped and cleared by the authorities. we were again exposed to moderate seas and heavy rains. demonstrated by the fact that. testified thus: A: It is made of wood. despite encountering rough weather twice. [30] xxxxxxxxx Indeed. Q: What is the purpose of the canvas cover? Q: How tight? A: So that the cargo would not be soaked with water. all the hatches were opened. August 9. sir. that in the afternoon of August 10. How many pieces of wood are put on top? That the weather condition improved when we reached Dumali Point protected by Mindoro. however. Manila. xxx we find no reason not to sustain the conclusion of the lower court based on overwhelming evidence. while entering A: Plenty. sir. 1979. the weather condition changed to worse and strong A: There are five beams in one hatch opening. Q: And on top of the beams you said there is a hatch board. sir. NSC failed to discharge its burden to show negligence on the part of the officers and the crew of MV Vlasons I. Maricaban Passage. that in the morning of August 10.769 packages from NSCs pier in Iligan City arriving safely at North Harbor. sir. 1974. did you chance to see the discharging operation? Q: What is this beam made of? WITNESS: A: It is made of steel. A: There is a hatch board. 1974. As aptly stated by the Court of ATTY DEL ROSARIO Appeals. A: There is none. winds and big waves continued pounding the vessel at her port side causing sea water to overflow on deck andhatch (sic) covers and which caused the first layer of the canvass covering to give way while the ATTY DEL ROSARIO new canvass covering still holding on. A: Very tight. The stevedores employed only a tent-like material to cover the hatches when strong rains occasioned by a passing typhoon disrupted the unloading of the cargo. inspection of the cargo. according to you. xxx. with a little canvas flowing over the sides and we place[d] a flat bar over the canvas on the side of the hatches and then we place[d] That due diligence was exercised by the officers and the crew of the MV Vlasons I was further a stopper so that the canvas could not be removed. . A: Yes. sheets or a total of 1. is the canvas cover. ATTY ZAMORA: Q: And aside from the hatch board. we encountered very rough seas and strong winds and Manila office was advised by telegram of the adverse weather conditions Q: How many hatch beams were there placed across the opening? encountered. while in the vicinity of the western part of Negros and Panay. the new tarpaulin did not give way and the ships hatches and cargo holds remained waterproof. On the contrary. you stated on August 14 you went on board the vessel upon notice from the National Steel Corporation in order to conduct the A: There is a beam supporting the hatch board. strong winds and big waves which caused the same Q: And is there a space between the hatch boards? canvass to give way and leaving the new canvass holding on. Vicente Q: What is the hatch board made of? Angliongto. we encountered again rough seas. that on or about A: No. because there are several pieces on top of the hatch beam. during your testimony on November 5. Port Area. How many canvas covers? WITNESS A: Two. on August 12. the records reveal that it was the stevedores of NSC who were Q: How was the canvas supported in the middle of the hatch opening? negligent in unloading the cargo from the ship. with a handle. During the course of the investigation. I saw some of the tinplates already discharged on the Q: Is the beam that was placed in the hatch opening covering the whole hatch opening? pier but majority of the tinplates were inside the hall. [29] A: It was placed flat on top of the hatch cover. A: And will you describe how the canvas cover was secured on the hatch opening? Q: Now. xxx xxx xxx [28] Q: They are tight together? And the relevant portions of Jose Pascuas deposition are as follows: A: Yes. 1974 carrying Q: And will you tell us the size of the hatch opening? The length and the width of the hatch on board thereof plaintiff-appellants shipment of 1. sir. the vessel was rigged. on top of the hatch boards. sir. This tent-like covering.before departure. that we re- secured the canvass covering back to position. that the MV VLASONS I was seaworthy when it undertook the voyage on August 8. sir.

just the same. Mr. Q: Now. or damage to. [35] The Court of Appeals affirmed the trial courts finding. did you not advise the National Steel Corporation [of] the procedure adopted by its stevedores in discharging the cargo particularly in this tent covering of the A discussion of this issue appears inconsequential and unnecessary. It has also been shown that on August 20. the transcript point. In passing. pointing out that he wrote his letter to petitioner only seven days later. it may be noted A: The tents are just a base of canvas which look like a tent of an Indian camp raise[d] high at that the NSC may seek indemnification. where is the place. your Honor. themselves when packed even without being in contact with water from outside especially when the weather is bad or raining xxx. there was a typhoon passing by and the hatch tent was not good enough to hold all of it to prevent the water soaking through the canvas and enter the cargo. Angliongtos candid answer in his aforequoted testimony satisfactorily explained the delay. 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 COURT: hatches and to drift to and fall on the cargo. Q: In connection with these cargoes which were unloaded. is this procedure adopted by the stevedores of covering tents proper? the cargo caused by the negligence of the stevedores xxx [34] as in the instant case. Finally. [32] The Court is not persuaded. subject to the laws on prescription. . so. Now. this question was already asked. 1974. In fact. The fact that NSC actually accepted and proceeded to remove the cargo from the ship during unfavorable weather will not make VSI liable for any damage caused thereby. then the NSCs representative. A: Yes. about the negligent and defective procedure separate and distinct from the contractual or statutory responsibility that may be incurred by VSI for adopted in unloading the cargo. Such negligence according to Precisely. Q: As owner of the vessel. or loss of. he was merely expressing concern for NSC which was ultimately responsible for the Q: What was used to protect the same from weather? stevedores it had hired and the performance of their task to unload the cargo. and tents were built at the strong winds that the hatches be totally closed down and covered with canvas and the hatch tents opening of the hatches. I did the first time I saw it. common sense and ordinary human experience. Seven days lapsed because he first called the The obligation of NSC to insure the cargo stipulated in the Contract of Voyage Charter Hire is totally attention of the stevedores. This series of actions constitutes a reasonable response in accord with damage to the cargo caused by the willful negligence of the officers and the crew of MV Vlasons . We do not think so. would be easier for them to resume work after the rains stopped by just removing said tents or canvass. This letter was received by [NSC] on 22 August 1974 while discharging operations were still going on (Exhibit 13-A). lowered. because he was not responsible for the stevedores or the unloading operations. I saw it. this is the serious part of the testimony. In the THIRD assigned error. The trial court relied on the testimony of Vicente Angliongto in finding that xxx tinplates sweat by A: Yes. Anglingto [sic]. the second time I went there. I called the attention of the representative of the National Steel but nothing was done. Vicente Angliongto could not be blamed for calling the stevedores attention first and then the NSCs representative on location before formally informing NSC of A: At the Pier. This particular matter . A stevedore company engaged in discharging cargo xxx has the duty is soaks [sic] at the middle because of those weather and this can be used only to to load the cargo xxx in a prudent manner. sir. ATTY LOPEZ: We see no reason to reverse the trial and the appellate courts findings and conclusions on this We object. (Exh 13). from the stevedoring company the middle with the whole side separated down to the hatch. It was proven that the stevedores merely set up temporary tents or canvas to cover the hatch openings when it rained during the unloading operations so that it All right. As previously discussed. witness may answer. sir. [NSC] claims that the trial court erred in finding that the stevedores hired by ATTY ZAMORA: NSC were negligent in the unloading of NSCs shipment. negligence xxx and where the officers and members and crew of the vessel do nothing and have no responsibility in the discharge of cargo by stevedores xxx the vessel is not liable for loss of. . at the time they were discharging the cargo. we would like to go on detail. and it is liable for injury to. I called the attention of the stevedores but the stevedores did not mind at all. viz: of stenographic notes shows the same was covered in the direct examination. did you see in fact the water enter and soak into the canvas and tinplates. I wrote a letter to them. A: No. sir. the size of the hatch and it at fault in the discharge operations. cargo caused by its temporarily protect the cargo from getting wet by rains. will you describe [to] the Court the tents constructed. VSI President Vicente Angliongto wrote [NSC] calling ATTY LOPEZ: attention to the manner the stevedores hired by [NSC] were discharging the cargo on rainy days and the Q: What was used in order to protect the cargo from the weather? 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 A: A base of canvas was used as cover on top of the tin plates. your Honor. [31] NSC attempts to discredit the testimony of Angliongto by questioning his failure to complain Second Issue: Effect of NSCs Failure to Insure the Cargo immediately about the stevedores negligence on the first day of unloading. the negligence he had observed. the hatches? damage to the tinplates was occasioned not by airborne moisture but by contact with rain and seawater which the stevedores negligently allowed to seep in during the unloading. Do Tinplates Sweat? Q: In the course of your inspection. the trial court is evident in the stevedores hired by [NSC]. [33] Q: You also stated that the hatches were already opened and that there were tents constructed at the opening of the hatches to protect the cargo from the rain.

is obviously misleading and erroneous. Cargo: Full cargo of steel products of not less than 2. Clearly. VSI assigns as error of law the Court of Appeals deletion of the award of attorneys fees. 9.500 MT. it was error for the trial court and the of the genuineness of the handwriting of the maker. specially enjoined by law. Certificate of Inspection of the Philippine Coast Guard at Cebu affreightment for the detention of the vessel beyond the laytime or that period of time agreed on for loading and unloading of cargo. 7. the following is well-settled: 3. and would cease to run in the event unfavorable weather After a careful examination of these exhibits. 1974. 6. as such. and holidays are not excepted. 1974 to August 24. [44] Moreover. [43] Consequently. or by a subscribing witness. We do not find anything in the charter party that would make the liability of VSI for damage to the cargo contingent on or 2. [39] NSCs contention that MV Vlasons I was not seaworthy is anchored on the alleged inadmissibility of the certificates of seaworthiness offered in evidence by VSI. 8. it did not have the obligation be reflected in a partys persistence in a case other than an erroneous conviction of the righteousness of of a common carrier to show that it was seaworthy. which provides that (e)ntries in official records made in the error. [41] NSC argues that the certificates are hearsay for not having been presented in accordance with the Rules of Court. while Exhibits 5. It points out that Exhibits 3. to file an action against VSI for damages caused by the latters willful negligence. 7. of the Rules of Court. 6. the respondent appellate court also erred in ruling that NSC was liable to VSI for performance of a duty by a public officer of the Philippines. [42] The running of laytime copies as required by Sections 25 and 26. While VSI was compelled to litigate to protect its rights. x x x If laytime is expressed in running 4. that Exhibit 11 is admissible under a well-settled exception to the hearsay rule per weather or rain which was August 22. Clearly. having been tolled by unfavorable weather condition in view of by private parties. 6. 9. [38] Exhibit 11 is an original certificate of the Philippine Coast Guard in Cebu issued by Lieutenant Junior Grade Noli C. Loading/Discharging Rate : 750 tons per WWDSHINC. and 12 Court of Appeals to have found and affirmed respectively that NSC incurred eleven days of delay in are photocopies. 8. to litigate or seek judicial redress of legitimate grievances. 7. Certificate of Inspection from the Philippine Coast Guard vessel. fitted and equipped for trading as a cargo vessel was cleared by the Philippine Coast Guard and sailed for Cebu Port on July 10. Coastwise License from the Board of Transportation days. but they have not been proven by one who saw the writing executed. the Court rules that Exhibits 3. NSC glaringly failed to discharge its duty of his cause x x x. Exhibits 5. the vessel was a private carrier and. A 5. On the other hand. As mentioned. [36] qualification of weather permitting excepts only those days when bad weather reasonably prevents the work contemplated. the contract of voyage charter hire provided for a four-day laytime. [37] was thus made subject to the weather. We disagree. Indeed. therefore. however.000. it also qualified officers.00 per day. International Load Line Certificate from the Philippine Coast Guard Laytime runs according to the particular clause of the charter party. NSCs failure to insure the cargo will not affect its right. 5. such fact by itself will not justify an award At any rate. [45] Fourth Issue: Demurrage and Attorneys Fees Epilogue The contract of voyage charter hire provides inter alia: . Exhibits 3 and 4 are certificates issued four-day laytime allowed it did not lapse. Rule 132. but their admission under the best evidence rule have not been demonstrated. for they have not been properly offered as evidence. such finding is a reversible Section 44 of Rule 130 of the Rules of Court. unloading the cargo. Demurrage/Dispatch : P8. As observed earlier. NSC may not be held liable for demurrage as the inadmissible.000. specifically August 13. this means days when the ship would be run continuously. as owner and real party in xxx xxx xxx interest. or by evidence the WWDSHINC qualification agreed upon by the parties. 9 and 12 are interfered with the unloading of cargo. Assailing judgment rendered was favorable to the latter. even if it reduced the amount by half.I. xxx xxx xxx Third Issue: Admissibility of Certificates Proving Seaworthiness 6. 8. affected in any manner by NSCs obtaining an insurance over the cargo. 1974. are prima facie evidence of the facts therein stated. Certificate of Approval for Conversion issued by the Bureau of Customs. After completion of drydocking and duly inspected by PCG Inspectors. a cargo vessel. therefore. 11 and 12 are not evidenced by official publications or certified true laytime as WWDSHINC or weather working days Sundays and holidays included.00/P4. 4 and 11 allegedly are not written records or acts of public In this case. 7. [40] It is given to compensate the shipowner for the nonuse of the 2. Flores to the effect that the vessel VLASONS I was drydocked x x x and PCG Inspectors were sent on board for inspection x x x. The said certificates include the following: The Court defined demurrage in its strict sense as the compensation provided for in the contract of 1. or by a person in the performance of a duty demurrage. 1974. The trial court arrived at this erroneous finding by subtracting from the twelve days. Based on our previous discussion. 4. 10% more or less at Masters option. the vessel Attorneys Fees VLASONS I. attorneys fees may not be awarded to a party for the reason alone that the proving the willful negligence of VSI in making the ship seaworthy resulting in damage to its cargo. as this is tantamount to imposing a premium on ones right the genuineness of the certificate of seaworthiness is not sufficient proof that the vessel was not seaworthy. meets all requirements. (sic) NSCs claim. the only day of unloading unhampered by unfavorable We find. is in seaworthy condition. it should be stressed that that NSC has the burden of proving that MV Vlasons I was not of attorneys fees under Article 2208 of the Civil Code when x x x no sufficient showing of bad faith would seaworthy.

are binding on the Supreme Court. both lower courts found that such damage was brought about during the unloading process when rain and seawater seeped through the cargo due to the fault or negligence of the stevedores employed by it.the Contract of Voyage Charter Hire -. First. not upon the shipowner. this appeal really hinges on a factual issue: when. In recognition of such factors.placed the burden of proof for such loss or damage upon the shipper. the parties even stipulated that the shipper should insure the cargo to protect itself from the risks it undertook under the charter party. on the ground that it is allegedly one-sided or unfair to the plaintiff. how and who caused the damage to the cargo? Ranged against NSC are two formidable truths. At bottom. the agreement between the parties -. when affirmed by the Court of Appeals. Such stipulation. not the least of which is the transport price which is determined not only by the actual costs but also by the risks and burdens assumed by the shipper in regard to possible loss or damage to the cargo. premises considered. Second. while disadvantageous to NSC. No pronouncement as to costs. . NSC has not satisfactorily shown that this case is one of them. which had nothing to do with such failure or neglect. That NSC failed or neglected to protect itself with such insurance should not adversely affect VSI. not one of common carriage. Although there are settled exceptions. the instant consolidated petitions are hereby DENIED.Basic is the rule that factual findings of the trial court. SO ORDERED. is valid because the parties entered into a contract of private charter. The charter party is a normal commercial contract and its stipulations are agreed upon in consideration of many factors. WHEREFORE. Basic too is the doctrine that courts cannot relieve a party from the effects of a private contract freely entered into. The questioned Decision of the Court of Appeals is AFFIRMED with the MODIFICATION that the demurrage awarded to VSI is deleted.