SECTION 4.

- Common Carriers (n)

SUBSECTION 1. - General Provisions

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.

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are
bound 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.

Such extraordinary diligence in the vigilance over the goods is further expressed in Articles 1734,
1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is
further set forth in Articles 1755 and 1756.

SUBSECTION 2. - Vigilance Over Goods

Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods,
unless the same is due to any of the following causes only:

(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 of 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.

Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article, if
the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or
to have acted negligently, unless they prove that they observed extraordinary diligence as required in
Article 1733.

Art. 1736. The extraordinary responsibility of the common carrier lasts from the time the goods are
unconditionally placed in the possession of, and received by the carrier for transportation until the
same are delivered, actually or constructively, by the carrier to the consignee, or to the person who
has a right to receive them, without prejudice to the provisions of Article 1738.

Art. 1737. The common carrier's duty to observe extraordinary diligence over the goods remains in full
force and effect even when they are temporarily unloaded or stored in transit, unless the shipper or
owner has made use of the right of stoppage in transitu.

Art. 1738. The extraordinary liability of the common carrier continues to be operative even during the
time the goods are stored in a warehouse of the carrier at the place of destination, until the consignee
has been advised of the arrival of the goods and has had reasonable opportunity thereafter to remove
them or otherwise dispose of them.

Art. 1739. In order that the common carrier may be exempted from responsibility, the natural disaster
must have been the proximate and only cause of the loss. However, the common carrier must exercise
due diligence to prevent or minimize loss before, during and after the occurrence of flood, storm or
other natural disaster in order that the common carrier may be exempted from liability for the loss,
destruction, or deterioration of the goods. The same duty is incumbent upon the common carrier in
case of an act of the public enemy referred to in Article 1734, No. 2.

Art. 1740. If the common carrier negligently incurs in delay in transporting the goods, a natural
disaster shall not free such carrier from responsibility.

Art. 1741. If the shipper or owner merely contributed to the loss, destruction or deterioration of the
goods, the proximate cause thereof being the negligence of the common carrier, the latter shall be
liable in damages, which however, shall be equitably reduced.

Art. 1742. Even if the loss, destruction, or deterioration of the goods should be caused by the
character of the goods, or the faulty nature of the packing or of the containers, the common carrier
must exercise due diligence to forestall or lessen the loss.

Art. 1743. If through the order of public authority the goods are seized or destroyed, the common
carrier is not responsible, provided said public authority had power to issue the order.

Cases:

Edna Lhuillier v. British Airways, GR No. 171072, Marcg 15, 2010.

Facts:

On April 28, 2005, petitioner Edna Diago Lhuillier filed a Complaint2 for damages against respondent
British Airways before the Regional Trial Court (RTC) of Makati City. She alleged that on February 28,
2005, she took respondent’s flight 548 from London, United Kingdom to Rome, Italy. Once on board, she
allegedly requested Julian Halliday (Halliday), one of the respondent’s flight attendants, to assist her in
placing her hand-carried luggage in the overhead bin. However, Halliday allegedly refused to help and
assist her, and even sarcastically remarked that "If I were to help all 300 passengers in this flight, I would
have a broken back!"

On April 28, 2005, petitioner Edna Diago Lhuillier filed a Complaint for damages against respondent
British Airways before the Regional Trial Court (RTC) of Makati City. The tortuous conduct by the flight
attendants of said Airways, which prompted petitioner to file a case for damages, allegedly transpired
when petitioner

boarded respondent’s flight 548 from London, United Kingdom to Rome, Italy. On May

30, 2005, respondent, by way of special appearance through counsel, filed a Motion to Dismiss on
grounds of lack of jurisdiction over the case and over the person of the respondent. Respondent alleged
that only the courts of London, United Kingdom or Rome, Italy, have jurisdiction over the complaint for
damages pursuant to the Warsaw Convention, Article 28(1) of which provides:
“An action for damages must be brought at the option of the plaintiff, either before the court of
domicile of the carrier or his principal place of business, or where he has a place of business through
which the contract has been made, or before the court of the place of destination.”

ISSUE: Whether or not Philippines, a signatory to the Warsaw Convention, should adhere to the
provision of the Warsaw Convention in the determination of its jurisdiction with respect to a case for
damages involving a tortuous conduct committed by an airline personnel while in an international
carrier against a Filipino citizen.

HELD: Yes. It is settled that the Warsaw Convention has the force and effect of law in this country. In
Santos III v. Northwest Orient Airlines, 210 SCRA 256 (1992), we held that: The Republic of the
Philippines is a party to the Convention for the Unification of Certain Rules Relating to International
Transportation by Air, otherwise known as the Warsaw Convention. It took effect on February 13, 1933.
The Convention was concurred in by the Senate, through its Resolution No. 19, on May 16, 1950. The
Philippine instrument of accession was signed by President Elpidio Quirino on October 13, 1950, and
was deposited with the Polish government on November 9, 1950. The Convention became applicable to
the Philippines on February 9, 1951. On September 23, 1955, President Ramon Magsaysay issued
Proclamation No. 201, declaring our formal adherence thereto, “to the end that the same and every
article and clause thereof may be observed and fulfilled in good faith by the Republic of the Philippines
and the citizens thereof.”

The Convention is thus a treaty commitment voluntarily assumed by the Philippine government and, as
such, has the force and effect of law in this country.

Perena v. Zarate, GR No. 157917, Aug. 29, 2012.

The facts of the case are as follows:

Spouses Perena were engaged in school bus service, transporting students from

Paranaque to Don Bosco Technical Institute in Makati. In June 1996, spouses Zarate

contracted spouses Perena to transport their son, Aaron Zarate, from their residence in

Paranaque to Don Bosco. As on the usual days of school in August 22, 1996, the van pickedup Aaron in
their house, he then took the left side seat near the rear door of the said vehicle.

Considering that the students were due by 7:15am at Don Bosco, and because of heavy traffic

at the South Superhighway, the driver, Clemente Alfaro, decided to take the narrow path

underneath the Magallanes interchange which then is being used by Makati bound vehicles as

short cut. The said narrow path has a railroad crossing, and while traversing the said narrow

path, closely tailing a huge passenger bus, the driver of the school service decided to overtake

the said bus at about 50 meters away from the railroad crossing. Considering that the stereo is
playing loudly and blinded by the bus, he did not hear the blowing of horn of the oncoming

train as a warning to the vehicles. The bus successfully crossed the railroad crossing but the

van did not. The train hit the rear side of the van and the impact threw 9 of the 12 students

including Aaron. His body landed in the path of the train, which dragged him, severed his

head, instantaneously killing him. Devastated by the sudden death of their son, spouses

Zarate commenced this action for damages. The Regional Trial Court ruled in favor of the

spouses Zarate. On appeal, The Court of Appeals affirmed the decision of the lower court but

lowered the moral damages to php 2,500,000.00.

ISSUE:

Whether or not there is a breach of contract of a common carrier and whether there is

negligence.

HELD:

The Supreme Court ruled in favor spouses Zarate, affirming the decision of the Court

of Appeals.

In this case, the Supreme Court, once and for all lay the matter to rest that the school

service is a common carrier and not a private carrier, and as such, they are required to observe

the extraordinary diligence as provided under Article 1733 of the Civil Code.

According to the Supreme Court, the true test for a common carrier is not the quantity

or extent of the business actually transacted, or the number and character of the conveyances

used in the activity, but whether the undertaking is a part of the activity engaged in by the

carrier that he has held out to the general public as his business or occupation. Otherwise

stated, making the activity or holding himself or itself out to the public as a ready to act for

all who may desire his or its services to transport goods or persons for a fee.
Applying the considerations mentioned above, there is no question that Perenas as the

operators of a school service were: a) engaged in transporting passengers generally as a

business not just as a casual occupation; b) undertaking to carry passengers over established

roads; c) transporting students for a fee. Despite catering limited clientele, the Perenas

operated as a common carrier because they hold themselves out as a ready transportation

indiscriminately to the students of a particular school living within or near where they

operated the service and for a fee.

On the second issue, Article 1756 of the Civil code provides that, In case of death of

or injuries to passengers, common carriers are presumed to have been at fault or to have acted

negligently, unless they prove that they observed extraordinary diligence as prescribed in

articles 1733 and 1755. In this case, Aaron Zarate died, and thus as provided under the abovementioned
law, they are negligent.