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A.F. SANCHEZ BROKERAGE INC., petitioners, vs. THE HON.

COURT
OF APPEALS and FGU INSURANCE
CORPORATION, respondents.

DECISION
CARPIO MORALES, J.:

Before this Court on a petition for Certiorari is the appellate courts


Decision of August 10, 2000 reversing and setting aside the judgment of
[1]

Branch 133, Regional Trial Court of Makati City, in Civil Case No. 93-76B
which dismissed the complaint of respondent FGU Insurance Corporation
(FGU Insurance) against petitioner A.F. Sanchez Brokerage, Inc. (Sanchez
Brokerage).
On July 8, 1992, Wyeth-Pharma GMBH shipped on board an aircraft of
KLM Royal Dutch Airlines at Dusseldorf, Germany oral contraceptives
consisting of 86,800 Blisters Femenal tablets, 14,000 Blisters Nordiol tablets
and 42,000 Blisters Trinordiol tablets for delivery to Manila in favor of the
consignee, Wyeth-Suaco Laboratories, Inc. The Femenal tablets were placed
[2]

in 124 cartons and the Nordiol tablets were placed in 20 cartons which were
packed together in one (1) LD3 aluminum container, while the Trinordial
tablets were packed in two pallets, each of which contained 30 cartons. [3]

Wyeth-Suaco insured the shipment against all risks with FGU Insurance
which issued Marine Risk Note No. 4995 pursuant to Marine Open Policy No.
138.[4]

Upon arrival of the shipment on July 11, 1992 at the Ninoy Aquino
International Airport (NAIA), it was discharged without exception and
[5] [6]

delivered to the warehouse of the Philippine Skylanders, Inc. (PSI) located


also at the NAIA for safekeeping. [7]

In order to secure the release of the cargoes from the PSI and the Bureau
of Customs, Wyeth-Suaco engaged the services of Sanchez Brokerage which
had been its licensed broker since 1984. As its customs broker, Sanchez
[8]

Brokerage calculates and pays the customs duties, taxes and storage fees for
the cargo and thereafter delivers it to Wyeth-Suaco. [9]

On July 29, 1992, Mitzi Morales and Ernesto Mendoza, representatives of


Sanchez Brokerage, paid PSI storage fee amounting to P8,572.35 a receipt
for which, Official Receipt No. 016992, was issued. On the receipt, another
[10]

representative of Sanchez Brokerage, M. Sison, acknowledged that he


[11]

received the cargoes consisting of three pieces in good condition. [12]


Wyeth-Suaco being a regular importer, the customs examiner did not
inspect the cargoes which were thereupon stripped from the aluminum
[13]

containers and loaded inside two transport vehicles hired by Sanchez


[14]

Brokerage. [15]

Among those who witnessed the release of the cargoes from the PSI
warehouse were Ruben Alonso and Tony Akas, employees of Elite Adjusters
[16]

and Surveyors Inc. (Elite Surveyors), a marine and cargo surveyor and
insurance claim adjusters firm engaged by Wyeth-Suaco on behalf of FGU
Insurance.
Upon instructions of Wyeth-Suaco, the cargoes were delivered to Hizon
Laboratories Inc. in Antipolo City for quality control check. The delivery [17]

receipt, bearing No. 07037 dated July 29, 1992, indicated that the delivery
consisted of one container with 144 cartons of Femenal and Nordiol and 1
pallet containing Trinordiol. [18]

On July 31, 1992, Ronnie Likas, a representative of Wyeth-Suaco,


acknowledged the delivery of the cargoes by affixing his signature on the
delivery receipt. Upon inspection, however, he, together with Ruben Alonzo
[19]

of Elite Surveyors, discovered that 44 cartons containing Femenal and Nordiol


tablets were in bad order. He thus placed a note above his signature on the
[20]

delivery receipt stating that 44 cartons of oral contraceptives were in bad


order. The remaining 160 cartons of oral contraceptives were accepted as
complete and in good order.
Ruben Alonzo thus prepared and signed, along with Ronnie Likas, a
survey report dated July 31, 1992 stating that 41 cartons of Femenal tablets
[21]

and 3 cartons of Nordiol tablets were wetted (sic). [22]

The Elite Surveyors later issued Certificate No. CS-0731-


1538/92 attached to which was an Annexed Schedule whereon it was
[23]

indicated that prior to the loading of the cargoes to the brokers trucks at the
NAIA, they were inspected and found to be in apparent good condition. Also [24]

noted was that at the time of delivery to the warehouse of Hizon Laboratories
Inc., slight to heavy rains fell, which could account for the wetting of the 44
cartons of Femenal and Nordiol tablets. [25]

On August 4, 1992, the Hizon Laboratories Inc. issued a Destruction


Report confirming that 38 x 700 blister packs of Femenal tablets, 3 x 700
[26]

blister packs of Femenal tablets and 3 x 700 blister packs of Nordiol tablets
were heavily damaged with water and emitted foul smell.
On August 5, 1992, Wyeth-Suaco issued a Notice of Materials
Rejection of 38 cartons of Femenal and 3 cartons of Nordiol on the ground
[27]
that they were delivered to Hizon Laboratories with heavy water damaged
(sic) causing the cartons to sagged (sic) emitting a foul order and easily
attracted flies.[28]

Wyeth-Suaco later demanded, by letter of August 25, 1992, from


[29]

Sanchez Brokerage the payment of P191,384.25 representing the value of its


loss arising from the damaged tablets.
As the Sanchez Brokerage refused to heed the demand, Wyeth-Suaco
filed an insurance claim against FGU Insurance which paid Wyeth-Suaco the
amount ofP181,431.49 in settlement of its claim under Marine Risk Note
Number 4995.
Wyeth-Suaco thus issued Subrogation Receipt in favor of FGU [30]

Insurance.
On demand by FGU Insurance for payment of the amount of P181,431.49
it paid Wyeth-Suaco, Sanchez Brokerage, by letter of January 7, 1993,
[31]

disclaimed liability for the damaged goods, positing that the damage was due
to improper and insufficient export packaging; that when the sealed containers
were opened outside the PSI warehouse, it was discovered that some of the
loose cartons were wet, prompting its (Sanchez Brokerages) representative
[32]

Morales to inform the Import-Export Assistant of Wyeth-Suaco, Ramir


Calicdan, about the condition of the cargoes but that the latter advised to still
deliver them to Hizon Laboratories where an adjuster would assess the
damage. [33]

Hence, the filing by FGU Insurance of a complaint for damages before the
Regional Trial Court of Makati City against the Sanchez Brokerage.
The trial court, by Decision of July 29, 1996, dismissed the complaint,
[34]

holding that the Survey Report prepared by the Elite Surveyors is bereft of any
evidentiary support and a mere product of pure guesswork. [35]

On appeal, the appellate court reversed the decision of the trial court, it
holding that the Sanchez Brokerage engaged not only in the business of
customs brokerage but also in the transportation and delivery of the cargo of
its clients, hence, a common carrier within the context of Article 1732 of the
New Civil Code. [36]

Noting that Wyeth-Suaco adduced evidence that the cargoes were


delivered to petitioner in good order and condition but were in a damaged
state when delivered to Wyeth-Suaco, the appellate court held that Sanchez
Brokerage is presumed negligent and upon it rested the burden of proving that
it exercised extraordinary negligence not only in instances when negligence is
directly proven but also in those cases when the cause of the damage is not
known or unknown. [37]

The appellate court thus disposed:

IN THE LIGHT OF ALL THE FOREGOING, the appeal of the Appellant is


GRANTED. The Decision of the Court a quo is REVERSED. Another Decision
is hereby rendered in favor of the Appellant and against the Appellee as
follows:

1. The Appellee is hereby ordered to pay the Appellant the principal


amount of P181, 431.49, with interest thereupon at the rate of
6% per annum, from the date of the Decision of the Court, until
the said amount is paid in full;

2. The Appellee is hereby ordered to pay to the Appellant the


amount of P20,000.00 as and by way of attorneys fees; and

3. The counterclaims of the Appellee are DISMISSED. [38]

Sanchez Brokerages Motion for Reconsideration having been denied by


the appellate courts Resolution of December 8, 2000 which was received by
petitioner on January 5, 2001, it comes to this Court on petition for certiorari
filed on March 6, 2001.
In the main, petitioner asserts that the appellate court committed grave
and reversible error tantamount to abuse of discretion when it found petitioner
a common carrier within the context of Article 1732 of the New Civil Code.
Respondent FGU Insurance avers in its Comment that the proper course
of action which petitioner should have taken was to file a petition for review on
certiorari since the sole office of a writ of certiorari is the correction of errors of
jurisdiction including the commission of grave abuse of discretion amounting
to lack or excess of jurisdiction and does not include correction of the
appellate courts evaluation of the evidence and factual findings thereon.
On the merits, respondent FGU Insurance contends that petitioner, as a
common carrier, failed to overcome the presumption of negligence, it being
documented that petitioner withdrew from the warehouse of PSI the subject
shipment entirely in good order and condition. [39]

The petition fails.


Rule 45 is clear that decisions, final orders or resolutions of the Court of
Appeals in any case, i.e., regardless of the nature of the action or proceedings
involved, may be appealed to this Court by filing a petition for review, which
would be but a continuation of the appellate process over the original case. [40]

The Resolution of the Court of Appeals dated December 8, 2000 denying


the motion for reconsideration of its Decision of August 10, 2000 was received
by petitioner on January 5, 2001. Since petitioner failed to appeal within 15
days or on or before January 20, 2001, the appellate courts decision had
become final and executory. The filing by petitioner of a petition for certiorari
on March 6, 2001 cannot serve as a substitute for the lost remedy of appeal.
In another vein, the rule is well settled that in a petition for certiorari, the
petitioner must prove not merely reversible error but also grave abuse of
discretion amounting to lack or excess of jurisdiction.
Petitioner alleges that the appellate court erred in reversing and setting
aside the decision of the trial court based on its finding that petitioner is liable
for the damage to the cargo as a common carrier. What petitioner is ascribing
is an error of judgment, not of jurisdiction, which is properly the subject of an
ordinary appeal.
Where the issue or question involves or affects the wisdom or legal
soundness of the decision not the jurisdiction of the court to render said
decision the same is beyond the province of a petition for certiorari. The [41]

supervisory jurisdiction of this Court to issue a cert writ cannot be exercised in


order to review the judgment of lower courts as to its intrinsic correctness,
either upon the law or the facts of the case. [42]

Procedural technicalities aside, the petition still fails.


The appellate court did not err in finding petitioner, a customs broker, to be
also a common carrier, as defined under Article 1732 of the Civil Code, to wit:

Art. 1732. Common carriers are persons, corporations, firms or associations


engaged in the business of carrying or transporting passengers or goods or
both, by land, water, or air, for compensation, offering their services to the
public.

Anacleto F. Sanchez, Jr., the Manager and Principal Broker of Sanchez


Brokerage, himself testified that the services the firm offers include the
delivery of goods to the warehouse of the consignee or importer.
ATTY. FLORES:
Q: What are the functions of these license brokers, license customs broker?
WITNESS:
As customs broker, we calculate the taxes that has to be paid in cargos, and those
upon approval of the importer, we prepare the entry together for processing and
claims from customs and finally deliver the goods to the warehouse of the
importer.[43]

Article 1732 does not distinguish between one whose principal business
activity is the carrying of goods and one who does such carrying only as an
ancillary activity. The contention, therefore, of petitioner that it is not a
[44]

common carrier but a customs broker whose principal function is to prepare


the correct customs declaration and proper shipping documents as required
by law is bereft of merit. It suffices that petitioner undertakes to deliver the
goods for pecuniary consideration.
In this light, petitioner as a common carrier is mandated to observe, under
Article 1733 of the Civil Code, extraordinary diligence in the vigilance over
[45]

the goods it transports according to all the circumstances of each case. In the
event that the goods are lost, destroyed or deteriorated, it is presumed to
have been at fault or to have acted negligently, unless it proves that it
observed extraordinary diligence. [46]

The concept of extra-ordinary diligence was explained in Compania


Maritima v. Court of Appeals: [47]

The extraordinary diligence in the vigilance over the goods tendered for
shipment requires the common carrier to know and to follow the required
precaution for avoiding damage to, or destruction of the goods entrusted to it
for sale, carriage and delivery. It requires common carriers to render service
with the greatest skill and foresight and to use all reasonable means to
ascertain the nature and characteristics of goods tendered for shipment, and
to exercise due care in the handling and stowage, including such methods as
their nature requires. [48]

In the case at bar, it was established that petitioner received the cargoes
from the PSI warehouse in NAIA in good order and condition; and that upon [49]

delivery by petitioner to Hizon Laboratories Inc., some of the cargoes were


found to be in bad order, as noted in the Delivery Receipt issued by [50]

petitioner, and as indicated in the Survey Report of Elite Surveyors and the [51]

Destruction Report of Hizon Laboratories, Inc. [52]

In an attempt to free itself from responsibility for the damage to the goods,
petitioner posits that they were damaged due to the fault or negligence of the
shipper for failing to properly pack them and to the inherent characteristics of
the goods ; and that it should not be faulted for following the instructions of
[53]

Calicdan of Wyeth-Suaco to proceed with the delivery despite information


conveyed to the latter that some of the cartons, on examination outside the
PSI warehouse, were found to be wet. [54]

While paragraph No. 4 of Article 1734 of the Civil Code exempts a


[55]

common carrier from liability if the loss or damage is due to the character of
the goods or defects in the packing or in the containers, the rule is that if the
improper packing is known to the carrier or his employees or is apparent upon
ordinary observation, but he nevertheless accepts the same without protest or
exception notwithstanding such condition, he is not relieved of liability for the
resulting damage. [56]

If the claim of petitioner that some of the cartons were already damaged
upon delivery to it were true, then it should naturally have received the cargo
under protest or with reservations duly noted on the receipt issued by PSI. But
it made no such protest or reservation. [57]

Moreover, as observed by the appellate court, if indeed petitioners


employees only examined the cargoes outside the PSI warehouse and found
some to be wet, they would certainly have gone back to PSI, showed to the
warehouseman the damage, and demanded then and there for Bad Order
documents or a certification confirming the damage. Or, petitioner would
[58]

have presented, as witness, the employees of the PSI from whom Morales
and Domingo took delivery of the cargo to prove that, indeed, part of the
cargoes was already damaged when the container was allegedly opened
outside the warehouse. [59]

Petitioner goes on to posit that contrary to the report of Elite Surveyors, no


rain fell that day. Instead, it asserts that some of the cargoes were already wet
on delivery by PSI outside the PSI warehouse but such notwithstanding
Calicdan directed Morales to proceed with the delivery to Hizon Laboratories,
Inc.
While Calicdan testified that he received the purported telephone call of
Morales on July 29, 1992, he failed to specifically declare what time he
received the call. As to whether the call was made at the PSI warehouse
when the shipment was stripped from the airport containers, or when the
cargoes were already in transit to Antipolo, it is not determinable. Aside from
that phone call, petitioner admitted that it had no documentary evidence to
prove that at the time it received the cargoes, a part of it was wet, damaged or
in bad condition.[60]

The 4-page weather data furnished by PAGASA on request of Sanchez


[61]

Brokerage hardly impresses, no witness having identified it and interpreted


the technical terms thereof.
The possibility on the other hand that, as found by Hizon Laboratories,
Inc., the oral contraceptives were damaged by rainwater while in transit to
Antipolo City is more likely then. Sanchez himself testified that in the past,
there was a similar instance when the shipment of Wyeth-Suaco was also
found to be wet by rain.
ATTY. FLORES:
Q: Was there any instance that a shipment of this nature, oral contraceptives, that
arrived at the NAIA were damaged and claimed by the Wyeth-Suaco without any
question?
WITNESS:
A: Yes sir, there was an instance that one cartoon (sic) were wetted (sic) but Wyeth-
Suaco did not claim anything against us.
ATTY. FLORES:
Q: HOW IS IT?
WITNESS:
A: We experienced, there was a time that we experienced that there was a cartoon
(sic) wetted (sic) up to the bottom are wet specially during rainy season.[62]

Since petitioner received all the cargoes in good order and condition at the
time they were turned over by the PSI warehouseman, and upon their delivery
to Hizon Laboratories, Inc. a portion thereof was found to be in bad order, it
was incumbent on petitioner to prove that it exercised extraordinary diligence
in the carriage of the goods. It did not, however. Hence, its presumed
negligence under Article 1735 of the Civil Code remains unrebutted.
WHEREFORE, the August 10, 2000 Decision of the Court of Appeals is
hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.

G.R. No. 161833. July 8, 2005

PHILIPPINE CHARTER INSURANCE CORPORATION, Petitioners,


vs.
UNKNOWN OWNER OF THE VESSEL M/V "NATIONAL HONOR," NATIONAL SHIPPING
CORPORATION OF THE PHILIPPINES and INTERNATIONAL CONTAINER SERVICES,
INC., Respondents.

DECISION

CALLEJO, SR., J.:


This is a petition for review under Rule 45 of the 1997 Revised Rules of Civil Procedure assailing the
Decision1dated January 19, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 57357 which
affirmed the Decision dated February 17, 1997 of the Regional Trial Court (RTC) of Manila, Branch
37, in Civil Case No. 95-73338.

The Antecedent

On November 5, 1995, J. Trading Co. Ltd. of Seoul, Korea, loaded a shipment of four units of parts
and accessories in the port of Pusan, Korea, on board the vessel M/V "National Honor," represented
in the Philippines by its agent, National Shipping Corporation of the Philippines (NSCP). The
shipment was for delivery to Manila, Philippines. Freight forwarder, Samhwa Inter-Trans Co., Ltd.,
issued Bill of Lading No. SH94103062 in the name of the shipper consigned to the order of
Metropolitan Bank and Trust Company with arrival notice in Manila to ultimate consignee Blue Mono
International Company, Incorporated (BMICI), Binondo, Manila.

NSCP, for its part, issued Bill of Lading No. NSGPBSML5125653 in the name of the freight
forwarder, as shipper, consigned to the order of Stamm International Inc., Makati, Philippines. It is
provided therein that:

12. This Bill of Lading shall be prima facie evidence of the receipt of the Carrier in apparent good
order and condition except as, otherwise, noted of the total number of Containers or other packages
or units enumerated overleaf. Proof to the contrary shall be admissible when this Bill of Lading has
been transferred to a third party acting in good faith. No representation is made by the Carrier as to
the weight, contents, measure, quantity, quality, description, condition, marks, numbers, or value of
the Goods and the Carrier shall be under no responsibility whatsoever in respect of such description
or particulars.

13. The shipper, whether principal or agent, represents and warrants that the goods are properly
described, marked, secured, and packed and may be handled in ordinary course without damage to
the goods, ship, or property or persons and guarantees the correctness of the particulars, weight or
each piece or package and description of the goods and agrees to ascertain and to disclose in
writing on shipment, any condition, nature, quality, ingredient or characteristic that may cause
damage, injury or detriment to the goods, other property, the ship or to persons, and for the failure to
do so the shipper agrees to be liable for and fully indemnify the carrier and hold it harmless in
respect of any injury or death of any person and loss or damage to cargo or property. The carrier
shall be responsible as to the correctness of any such mark, descriptions or representations.4

The shipment was contained in two wooden crates, namely, Crate No. 1 and Crate No. 2, complete
and in good order condition, covered by Commercial Invoice No. YJ-73564 DTD5 and a Packing
List.6 There were no markings on the outer portion of the crates except the name of the
consignee.7 Crate No. 1 measured 24 cubic meters and weighed 3,620 kgs. It contained the
following articles: one (1) unit Lathe Machine complete with parts and accessories; one (1) unit
Surface Grinder complete with parts and accessories; and one (1) unit Milling Machine complete
with parts and accessories. On the flooring of the wooden crates were three wooden battens placed
side by side to support the weight of the cargo. Crate No. 2, on the other hand, measured 10 cubic
meters and weighed 2,060 kgs. The Lathe Machine was stuffed in the crate. The shipment had a
total invoice value of US$90,000.00 C&F Manila.8 It was insured for P2,547,270.00 with the
Philippine Charter Insurance Corporation (PCIC) thru its general agent, Family Insurance and
Investment Corporation,9 under Marine Risk Note No. 68043 dated October 24, 1994.10

The M/V "National Honor" arrived at the Manila International Container Terminal (MICT) on
November 14, 1995. The International Container Terminal Services, Incorporated (ICTSI) was
furnished with a copy of the crate cargo list and bill of lading, and it knew the contents of the
crate.11 The following day, the vessel started discharging its cargoes using its winch crane. The
crane was operated by Olegario Balsa, a winchman from the ICTSI,12 the exclusive arrastre operator
of MICT.

Denasto Dauz, Jr., the checker-inspector of the NSCP, along with the crew and the surveyor of the
ICTSI, conducted an inspection of the cargo.13 They inspected the hatches, checked the cargo and
found it in apparent good condition.14 Claudio Cansino, the stevedore of the ICTSI, placed two sling
cables on each end of Crate No. 1.15 No sling cable was fastened on the mid-portion of the crate. In
Dauzs experience, this was a normal procedure.16 As the crate was being hoisted from the vessels
hatch, the mid-portion of the wooden flooring suddenly snapped in the air, about five feet high from
the vessels twin deck, sending all its contents crashing down hard,17 resulting in extensive damage
to the shipment.

BMICIs customs broker, JRM Incorporated, took delivery of the cargo in such damaged
condition.18 Upon receipt of the damaged shipment, BMICI found that the same could no longer be
used for the intended purpose. The Mariners Adjustment Corporation hired by PCIC conducted a
survey and declared that the packing of the shipment was considered insufficient. It ruled out the
possibility of taxes due to insufficiency of packing. It opined that three to four pieces of cable or wire
rope slings, held in all equal setting, never by-passing the center of the crate, should have been
used, considering that the crate contained heavy machinery.19

BMICI subsequently filed separate claims against the NSCP,20 the ICTSI,21 and its insurer, the
PCIC,22 for US$61,500.00. When the other companies denied liability, PCIC paid the claim and was
issued a Subrogation Receipt23 for P1,740,634.50.

On March 22, 1995, PCIC, as subrogee, filed with the RTC of Manila, Branch 35, a Complaint for
Damages24against the "Unknown owner of the vessel M/V National Honor," NSCP and ICTSI, as
defendants.

PCIC alleged that the loss was due to the fault and negligence of the defendants. It prayed, among
others

WHEREFORE, it is respectfully prayed of this Honorable Court that judgment be rendered ordering
defendants to pay plaintiff, jointly or in the alternative, the following:

1. Actual damages in the amount of P1,740,634.50 plus legal interest at the time of the filing of this
complaint until fully paid;

2. Attorneys fees in the amount of P100,000.00;

3. Cost of suit.25

ICTSI, for its part, filed its Answer with Counterclaim and Cross-claim against its co-defendant
NSCP, claiming that the loss/damage of the shipment was caused exclusively by the defective
material of the wooden battens of the shipment, insufficient packing or acts of the shipper.

At the trial, Anthony Abarquez, the safety inspector of ICTSI, testified that the wooden battens
placed on the wooden flooring of the crate was of good material but was not strong enough to
support the weight of the machines inside the crate. He averred that most stevedores did not know
how to read and write; hence, he placed the sling cables only on those portions of the crate where
the arrow signs were placed, as in the case of fragile cargo. He said that unless otherwise indicated
by arrow signs, the ICTSI used only two cable slings on each side of the crate and would not place a
sling cable in the mid-section.26 He declared that the crate fell from the cranes because the wooden
batten in the mid-portion was broken as it was being lifted.27 He concluded that the loss/damage was
caused by the failure of the shipper or its packer to place wooden battens of strong materials under
the flooring of the crate, and to place a sign in its mid-term section where the sling cables would be
placed.

The ICTSI adduced in evidence the report of the R.J. Del Pan & Co., Inc. that the damage to the
cargo could be attributed to insufficient packing and unbalanced weight distribution of the cargo
inside the crate as evidenced by the types and shapes of items found.28

The trial court rendered judgment for PCIC and ordered the complaint dismissed, thus:

WHEREFORE, the complaint of the plaintiff, and the respective counterclaims of the two defendants
are dismissed, with costs against the plaintiff.

SO ORDERED.29

According to the trial court, the loss of the shipment contained in Crate No. 1 was due to the internal
defect and weakness of the materials used in the fabrication of the crates. The middle wooden
batten had a hole (bukong-bukong). The trial court rejected the certification30 of the shipper, stating
that the shipment was properly packed and secured, as mere hearsay and devoid of any evidentiary
weight, the affiant not having testified.

Not satisfied, PCIC appealed31 to the CA which rendered judgment on January 19, 2004 affirming in
toto the appealed decision, with this fallo

WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 35, dated February 17,
1997, is AFFIRMED.

SO ORDERED.32

The appellate court held, inter alia, that it was bound by the finding of facts of the RTC, especially so
where the evidence in support thereof is more than substantial. It ratiocinated that the loss of the
shipment was due to an excepted cause "[t]he character of the goods or defects in the packing or
in the containers" and the failure of the shipper to indicate signs to notify the stevedores that extra
care should be employed in handling the shipment.33 It blamed the shipper for its failure to use
materials of stronger quality to support the heavy machines and to indicate an arrow in the middle
portion of the cargo where additional slings should be attached.34 The CA concluded that common
carriers are not absolute insurers against all risks in the transport of the goods.35

Hence, this petition by the PCIC, where it alleges that:

I.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN NOT HOLDING THAT
RESPONDENT COMMON CARRIER IS LIABLE FOR THE DAMAGE SUSTAINED BY THE
SHIPMENT IN THE POSSESSION OF THE ARRASTRE OPERATOR.

II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN NOT APPLYING THE
STATUTORY PRESUMPTION OF FAULT AND NEGLIGENCE IN THE CASE AT BAR.

III.

THE COURT OF APPEALS GROSSLY MISCOMPREHENDED THE FACTS IN FINDING THAT


THE DAMAGE SUSTAINED BY THE [SHIPMENT] WAS DUE TO ITS DEFECTIVE PACKING AND
NOT TO THE FAULT AND NEGLIGENCE OF THE RESPONDENTS.36

The petitioner asserts that the mere proof of receipt of the shipment by the common carrier (to the
carrier) in good order, and their arrival at the place of destination in bad order makes out a prima
facie case against it; in such case, it is liable for the loss or damage to the cargo absent satisfactory
explanation given by the carrier as to the exercise of extraordinary diligence. The petitioner avers
that the shipment was sufficiently packed in wooden boxes, as shown by the fact that it was
accepted on board the vessel and arrived in Manila safely. It emphasizes that the respondents did
not contest the contents of the bill of lading, and that the respondents knew that the manner and
condition of the packing of the cargo was normal and barren of defects. It maintains that it behooved
the respondent ICTSI to place three to four cables or wire slings in equal settings, including the
center portion of the crate to prevent damage to the cargo:

[A] simple look at the manifesto of the cargo and the bill of lading would have alerted respondents
of the nature of the cargo consisting of thick and heavy machinery. Extra-care should have been
made and extended in the discharge of the subject shipment. Had the respondent only bothered to
check the list of its contents, they would have been nervous enough to place additional slings and
cables to support those massive machines, which were composed almost entirely of thick steel,
clearly intended for heavy industries. As indicated in the list, the boxes contained one lat[h]e
machine, one milling machine and one grinding machine-all coming with complete parts and
accessories. Yet, not one among the respondents were cautious enough. Here lies the utter failure
of the respondents to observed extraordinary diligence in the handling of the cargo in their custody
and possession, which the Court of Appeals should have readily observed in its appreciation of the
pertinent facts.37

The petitioner posits that the loss/damage was caused by the mishandling of the shipment by therein
respondent ICTSI, the arrastre operator, and not by its negligence.

The petitioner insists that the respondents did not observe extraordinary diligence in the care of the
goods. It argues that in the performance of its obligations, the respondent ICTSI should observe the
same degree of diligence as that required of a common carrier under the New Civil Code of the
Philippines. Citing Eastern Shipping Lines, Inc. v. Court of Appeals,38 it posits that respondents are
liable in solidum to it, inasmuch as both are charged with the obligation to deliver the goods in good
condition to its consignee, BMICI.

Respondent NSCP counters that if ever respondent ICTSI is adjudged liable, it is not solidarily liable
with it. It further avers that the "carrier cannot discharge directly to the consignee because cargo
discharging is the monopoly of the arrastre." Liability, therefore, falls solely upon the shoulder of
respondent ICTSI, inasmuch as the discharging of cargoes from the vessel was its exclusive
responsibility. Besides, the petitioner is raising questions of facts, improper in a petition for review
on certiorari.39

Respondent ICTSI avers that the issues raised are factual, hence, improper under Rule 45 of the
Rules of Court. It claims that it is merely a depository and not a common carrier; hence, it is not
obliged to exercise extraordinary diligence. It reiterates that the loss/damage was caused by the
failure of the shipper or his packer to place a sign on the sides and middle portion of the crate that
extra care should be employed in handling the shipment, and that the middle wooden batten on the
flooring of the crate had a hole. The respondent asserts that the testimony of Anthony Abarquez,
who conducted his investigation at the site of the incident, should prevail over that of Rolando
Balatbat. As an alternative, it argues that if ever adjudged liable, its liability is limited only
to P3,500.00 as expressed in the liability clause of Gate Pass CFS-BR-GP No. 319773.

The petition has no merit.

The well-entrenched rule in our jurisdiction is that only questions of law may be entertained by this
Court in a petition for review on certiorari. This rule, however, is not ironclad and admits certain
exceptions, such as when (1) the conclusion is grounded on speculations, surmises or conjectures;
(2) the inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion;
(4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6)
there is no citation of specific evidence on which the factual findings are based; (7) the findings of
absence of facts are contradicted by the presence of evidence on record; (8) the findings of the
Court of Appeals are contrary to those of the trial court; (9) the Court of Appeals manifestly
overlooked certain relevant and undisputed facts that, if properly considered, would justify a different
conclusion; (10) the findings of the Court of Appeals are beyond the issues of the case; and (11)
such findings are contrary to the admissions of both parties.40

We have reviewed the records and find no justification to warrant the application of any exception to
the general rule.

We agree with the contention of the petitioner that common carriers, from the nature of their
business and for reasons of public policy, are mandated to observe extraordinary diligence in the
vigilance over the goods and for the safety of the passengers transported by them, according to all
the circumstances of each case.41 The Court has defined extraordinary diligence in the vigilance over
the goods as follows:

The extraordinary diligence in the vigilance over the goods tendered for shipment requires the
common carrier to know and to follow the required precaution for avoiding damage to, or destruction
of the goods entrusted to it for sale, carriage and delivery. It requires common carriers to render
service with the greatest skill and foresight and "to use all reasonable means to ascertain the nature
and characteristic of goods tendered for shipment, and to exercise due care in the handling and
stowage, including such methods as their nature requires."42

The common carriers duty to observe the requisite diligence in the shipment of goods lasts from the
time the articles are surrendered to or unconditionally placed in the possession of, and received by,
the carrier for transportation until delivered to, or until the lapse of a reasonable time for their
acceptance, by the person entitled to receive them.43 When the goods shipped are either lost or
arrive in damaged condition, a presumption arises against the carrier of its failure to observe that
diligence, and there need not be an express finding of negligence to hold it liable.44 To overcome the
presumption of negligence in the case of loss, destruction or deterioration of the goods, the common
carrier must prove that it exercised extraordinary diligence.45

However, under Article 1734 of the New Civil Code, the presumption of negligence does not apply to
any of the following causes:

1. Flood, storm, earthquake, lightning or other natural disaster or calamity;

2. Act of the public enemy in war, whether international or civil;


3. Act or omission of the shipper or owner of the goods;

4. The character of the goods or defects in the packing or in the containers;

5. Order or act of competent public authority.

It bears stressing that the enumeration in Article 1734 of the New Civil Code which exempts the
common carrier for the loss or damage to the cargo is a closed list.46 To exculpate itself from liability
for the loss/damage to the cargo under any of the causes, the common carrier is burdened to prove
any of the aforecited causes claimed by it by a preponderance of evidence. If the carrier succeeds,
the burden of evidence is shifted to the shipper to prove that the carrier is negligent.47

"Defect" is the want or absence of something necessary for completeness or perfection; a lack or
absence of something essential to completeness; a deficiency in something essential to the proper
use for the purpose for which a thing is to be used.48 On the other hand, inferior means of poor
quality, mediocre, or second rate.49 A thing may be of inferior quality but not necessarily defective. In
other words, "defectiveness" is not synonymous with "inferiority."

In the present case, the trial court declared that based on the record, the loss of the shipment was
caused by the negligence of the petitioner as the shipper:

The same may be said with respect to defendant ICTSI. The breakage and collapse of Crate No. 1
and the total destruction of its contents were not imputable to any fault or negligence on the part of
said defendant in handling the unloading of the cargoes from the carrying vessel, but was due solely
to the inherent defect and weakness of the materials used in the fabrication of said crate.

The crate should have three solid and strong wooden batten placed side by side underneath or on
the flooring of the crate to support the weight of its contents. However, in the case of the crate in
dispute, although there were three wooden battens placed side by side on its flooring, the middle
wooden batten, which carried substantial volume of the weight of the crates contents, had a knot
hole or "bukong-bukong," which considerably affected, reduced and weakened its strength. Because
of the enormous weight of the machineries inside this crate, the middle wooden batten gave way and
collapsed. As the combined strength of the other two wooden battens were not sufficient to hold and
carry the load, they too simultaneously with the middle wooden battens gave way and collapsed
(TSN, Sept. 26, 1996, pp. 20-24).

Crate No. 1 was provided by the shipper of the machineries in Seoul, Korea. There is nothing in the
record which would indicate that defendant ICTSI had any role in the choice of the materials used in
fabricating this crate. Said defendant, therefore, cannot be held as blame worthy for the loss of the
machineries contained in Crate No. 1.50

The CA affirmed the ruling of the RTC, thus:

The case at bar falls under one of the exceptions mentioned in Article 1734 of the Civil Code,
particularly number (4) thereof, i.e., the character of the goods or defects in the packing or in the
containers. The trial court found that the breakage of the crate was not due to the fault or negligence
of ICTSI, but to the inherent defect and weakness of the materials used in the fabrication of the said
crate.

Upon examination of the records, We find no compelling reason to depart from the factual findings of
the trial court.
It appears that the wooden batten used as support for the flooring was not made of good materials,
which caused the middle portion thereof to give way when it was lifted. The shipper also failed to
indicate signs to notify the stevedores that extra care should be employed in handling the shipment.

Claudio Cansino, a stevedore of ICTSI, testified before the court their duties and responsibilities:

"Q: With regard to crates, what do you do with the crates?

A: Everyday with the crates, there is an arrow drawn where the sling is placed, Maam.

Q: When the crates have arrows drawn and where you placed the slings, what do you do with these
crates?

A: A sling is placed on it, Maam.

Q: After you placed the slings, what do you do with the crates?

A: After I have placed a sling properly, I ask the crane (sic) to haul it, Maam.

Q: Now, what, if any, were written or were marked on the crate?

A: The thing that was marked on the cargo is an arrow just like of a chain, Maam.

Q: And where did you see or what parts of the crate did you see those arrows?

A: At the corner of the crate, Maam.

Q: How many arrows did you see?

A: Four (4) on both sides, Maam.

Q: What did you do with the arrows?

A: When I saw the arrows, thats where I placed the slings, Maam.

Q: Now, did you find any other marks on the crate?

A: Nothing more, Maam.

Q: Now, Mr. Witness, if there are no arrows, would you place slings on the parts where there are no
arrows?

A: You can not place slings if there are no arrows, Maam."


Appellants allegation that since the cargo arrived safely from the port of [P]usan, Korea without
defect, the fault should be attributed to the arrastre operator who mishandled the cargo, is without
merit. The cargo fell while it was being carried only at about five (5) feet high above the ground. It
would not have so easily collapsed had the cargo been properly packed. The shipper should have
used materials of stronger quality to support the heavy machines. Not only did the shipper fail to
properly pack the cargo, it also failed to indicate an arrow in the middle portion of the cargo where
additional slings should be attached. At any rate, the issue of negligence is factual in nature and in
this regard, it is settled that factual findings of the lower courts are entitled to great weight and
respect on appeal, and, in fact, accorded finality when supported by substantial evidence.51

We agree with the trial and appellate courts.

The petitioner failed to adduce any evidence to counter that of respondent ICTSI. The petitioner
failed to rebut the testimony of Dauz, that the crates were sealed and that the contents thereof could
not be seen from the outside.52While it is true that the crate contained machineries and spare parts, it
cannot thereby be concluded that the respondents knew or should have known that the middle
wooden batten had a hole, or that it was not strong enough to bear the weight of the shipment.

There is no showing in the Bill of Lading that the shipment was in good order or condition when the
carrier received the cargo, or that the three wooden battens under the flooring of the cargo were not
defective or insufficient or inadequate. On the other hand, under Bill of Lading No.
NSGPBSML512565 issued by the respondent NSCP and accepted by the petitioner, the latter
represented and warranted that the goods were properly packed, and disclosed in writing the
"condition, nature, quality or characteristic that may cause damage, injury or detriment to the goods."
Absent any signs on the shipment requiring the placement of a sling cable in the mid-portion of the
crate, the respondent ICTSI was not obliged to do so.

The statement in the Bill of Lading, that the shipment was in apparent good condition, is sufficient to
sustain a finding of absence of defects in the merchandise. Case law has it that such statement will
create a prima faciepresumption only as to the external condition and not to that not open to
inspection.53

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.

SO ORDERED.