Professional Documents
Culture Documents
CHAPTER 1
GENERAL CONCEPTS
A. Contract of Transportation
There is a contract of transportation where a person obligates himself to transport persons or property
from one place to another for consideration.
B. Parties
a. Carriage of Passengers
The parties in a contract of carriage of passengers are the common carrier and the passenger.
Passenger – is one who travels in a public conveyance by virtue of a contract, express or implied, with
the carrier as to the payment of fare or that which is accepted as an equivalent thereof.
b. Carriage of Goods
When the contract is for the carriage of goods, the parties are the shipper and carrier.
Shipper – is the person who delivers the goods to the carrier for transportation. He pays the
consideration or on whose behalf payment is made.
Consignee – is the person to whom the goods are to be delivered. He may be the shipper himself or may
be a third person who is not actually a party to the contract.
Nevertheless, there are instances when the third party consignee is bound by the agreement between
the shipper and the carrier.
C. Perfection
There are two types of contracts of carriage of passengers:
1. Contract to Carry – an agreement to carry the passenger at some future time. This contract is
consensual and is therefore perfected by mere consent.
2. Contract of Carriage or of Common Carriage Itself – considered as the real contract for not until the
facilities of the carrier are actually used can the carrier be said to have already assumed the obligation of
the carriage.
a. Aircraft
There is a perfected contract to carry passengers even if no tickets have been issued to said passengers
so long as there was already a meeting of minds with respect to the subject matter and the
consideration.
There is a perfected contract of carriage between a passenger and an airline if it was established that
the passenger had checked in at the departure counter, passed through customs and immigration,
boarded the shuttle bus and proceeded to the ramp of the aircraft.
With respect to buses, jeepneys, or street cars, the Supreme Court explained in one case that once a
public utility bus (or jeepney) stops, it is in effect making a continuous offer to bus riders. Hence, it is the
duty of the drivers to stop their conveyances for a reasonable length of time in order to afford
passengers an opportunity to board and enter, and they are liable for injuries suffered by boarding
passengers resulting from sudden starting up of the carrier. It follows that the passenger is deemed to
be accepting the offer if he is already attempting to board the conveyances and the contract of carriage
is perfected from that point.
c. Trains
A person who wants to board a train in a railway station must purchase a ticket and must present
himself at the proper place and in a proper manner to be transported. If he does not do so, he will not
be considered a passenger.
II. CARRIER
Article 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.
The concept of “common carrier” under 1732 may be seen to coincide neatly with the notion of “public
service” under the Public Service Act.
a. Tests
1. He must be engaged in the business of carrying goods for others as a public employment xxxx not as a
casual occupation;
2. He must undertake to carry goods of the kind to which his business is confined;
3. He must undertake to carry goods of the kind to kind to which his business is conducted and over his
established roads; and
4. The transportation must be for hire.
b. Characteristics
The concept of common carriers contemplated under the Public Service Act results in the application of
the following rules or principles:
III. DISTINGUISHED FROM PRIVATE CARRIER
The distinction between a “common or public carrier” and a private or special carrier lies in the
character of the business, such that if the undertaking is a single transaction, not a part of a general
business or occupation, althougn involving the carriage of the goods for a fee, the person or corporation
offering such service is a private carrier.
While a common carrier is bound to exercise extraordinary diligence, a private carrier owes only
diligence of a good father of a father of a family.
Moreover, while a common carrier cannot stipulate that it is exempt from liability for negligence of its
agents or employees, a private carrier may validly enter into such stipulation.
On the other hand, the functions of arrastre operator usually include: to receive, handle, care for, and
deliver all merchandise; to record or check all merchandise; and to furnish light, and water services and
other incidental services.
The function of stevedores involve the loading and unloading of coastwise vessels calling at the port.
V. GOVERNING LAWS
Article 1766 of the Civil Code expresses: “In all matters not regulated by this Code, the rights and
obligations of common carriers shall be governed by the Code of Commerce and by special laws.”
Article 1753: “The law of the country to which the goods are to be transported shall govern the liability
of the common carrier for their loss, destruction or deterioration.”
Common carriers are public utilities. As such, they are impressed with public interest and concern.
a. Registration Laws
Registration of motor vehicles is now government by Republic Act 4136 otherwise known as “The Land
Transportation and Traffic Code”
b. Registered Owner Rule
The rule in this jurisdiction is that the person who is the registered owner of a vehicle is liable for any
damage caused by the negligent operation of the vehicle although the same was already sold or
conveyed to another person at the time of the accident.
The registered owner is liable to the injured party subject to his right or recourse against the transferee
or the buyer.
c. Kabit System
The “registered owner” rule is applicable whenever the persons involved are engaged in what is known
as the “kabit system.”
The Kabit System is an arrangement whereby a person who has been granted a certificate of public
convenience allows other persons who own motor vehicles to operate them under his license,
sometimes for a fee or percentage of the earnings.
Both parties are at fault. Having entered into an illegal contract, neither party cannot invoke the same as
against each other either to enforce their illegal agreement or to invoke the same to escape liability.
Both parties cannot seek relief from the courts, and each must bear the consequences of his acts.
Kabit System may also be applied to vessels and aircrafts that are covered by the certificates of
convenience and necessity.
CHAPTER 2
OBLIGATIONS OF THE PARTIES
a. Duty to Accept
A common carrier that is granted a certificate of public convenience is duty bound to accept passengers
or cargo without any discrimination.
The instances when the carrier may validly refuse to accept goods include:
When the goods sought to be transported are dangerous objects, or substances including dynamites and
other explosives;
Goods will be exposed to untoward danger like flood, capture by enemies and the like;
Strike; and
a. Time of Delivery
Article 358 of the Code of Commerce: “If there is no period fixed for the delivery of the goods the carrier
shall be bound to forward them in the first shipment of the same or similar goods which he may make to
the point of delivery; and should he not do so, the damages caused by the delay should be for his
account.”
b. Consequences of Delay
Article 1747 of the Civil Code: “If the common carrier, without just cause, delays the transportation of
the goods or changes the stipulated or usual route, the contract limiting the common carrier’s liability
cannot be availed of in case of the loss, destruction, or deterioration of the goods.
In cases of delay on account of the fault of the shipper, the consignee may leave the goods transported
in the hands of the carrier, informing him thereof in writing before the arrival of the same at the point of
destination.
Right of Passengers in Case of Delay is specifically provided in Article 698 of the Code of Commerce: “In
case a voyage already begun should be interrupted, the passenger shall be obliged to pay the fare in
proportion to the distance covered, without right to recover for losses and damages if the interruption is
due to fortuitous event or force majeure, but with a right to indemnity if the interruption should have
been caused by the captain exclusively.
Memorandum Circular No. 112 issued by Maritime Industry Authority provides: “In case the vessel is not
able to depart on time and the delay is unreasonable, the passenger may opt to have his/her ticket
immediately refunded without any refund service fee….”
a. Place
The goods should be delivered to the consignee in the place agreed upon by the parties. If the specific
place or warehouse is designated in the bill of lading, the goods must be delivered in such place.
b. Consignee
The goods should be delivered to the consignee or any other person to whom the bill of lading was
validly transferred or negotiated.
Article 369 of the Code of Commerce provides: “If the consignee cannot be found at the residence
indicated in the bill of lading, or if he refuses to pay the transportation charges and expenses, or if he
refuses to receive the goods, the municipal judge, where there is none of the first instance, shall provide
for their deposit at the disposal of the shipper, this deposit producing all the effects of delivery without
prejudice to third parties with a better right.
The basic rule that applies to carriage of goods shall also apply to carriage of passengers.
The goods should be delivered in the same condition that they were received and to transport
passengers without encountering any harm or loss. In the exercise of this obligation, the common carrier
is obligated to exercise extraordinary diligence.
Article 1755 of the Civil Code explains extraordinary diligence: “A common carrier is bound to carry the
passengers safely as far as human care and foresight can provide, using the utmost diligence of very
cautious person, with due regard for all circumstances.
a. Presumption of Negligence
In case of loss of effects or cargo or passengers or death or injuries to passengers, the common carrier is
presumed to be at fault or have acted negligently unless he had observed extraordinary diligence in the
vigilance thereof.
b. Duration of Duty
Article 1736 of the Civil Code provides: “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….”
With respect to carriage of passengers by trains, the extraordinary diligence commences the moment
the person who purchases the ticket presents himself at the proper place and in a proper manner to be
transported with a bona fide intent to ride the coach.
With respect to carriage of passengers by sea, the duty of the carrier commences as soon as the person
with bona fide intention of taking passage places himself in the care of the carrier or its employees and
is accepted as passenger.
Motor vehicles like passenger jeepneys and buses are duty bound to stop their conveyances for a
reasonable length of time in order to afford passengers an opportunity to board and enter. The rule is
that once a public utility bus or jeepney stops, it is making a continuous offer to bus riders.
The defenses that can be raised by common carriers for the loss, destruction, deterioration of the goods
are:
(1) Flood, storm, earthquake, lightning and other natural disaster and calamity;
(4) The character of the packing of the goods in the packing or in the containers;
Fortuitous Event
(1) The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply
with his obligation, must be independent of the human will.
(2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be
foreseen, it must be impossible to avoid.
(3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a
normal manner.
(4) The obligor (debtor) must be free from any participation in or the aggravation of the injury resulting
to the creditor.
Fortuitous event, to be a valid defense, must be established to be the proximate case of the loss. (Art.
1739)
Invalid Defenses:
1. Fire
2. Hijacking
3. Mechanical Defects
4. Other Invalid Defenses
a) Explosion
b) Worms and Rats
c) Water Damage
d) Barratry
Public Enemy
The term ‘public enemy,’ in its general acceptation presupposes the existence of an actual state of war,
and refers to the government of a foreign nation at war with the country to which the carrier belongs
xxxx
Improper Packing
It is also the rule that if the carrier accepts the goods knowing the fact of improper packing of the goods
upon ordinary observation or notwithstanding such condition, it is not relieved of liability for loss or
injury resulting therefrom.
The primary defense of the carrier in transporting passengers is exercise of extraordinary diligence.
Thus, even if there is a fortuitous event, the carrier must also present proof of exercise of extraordinary
diligence.
a. Employees
Article 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former’s employees although such employees may have acted beyond
the scope of their authority or in violation of the orders of the common carriers.
Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the
willful acts or negligence of other passengers or strangers, if the common carrier’s employees through
the exercise of the diligence of a good father of a family could have prevented or stopped the act or
omission.
g. Passenger’s Baggages
Baggage that are checked in or delivered to the carrier are governed by the rules discussed above
requiring extraordinary diligence.
Contributory negligence on the part of the passenger is not a defense that will excuse the carrier from
liability. It will only mitigate such liability. However, the negligence of the shipper or the passenger may
be the proximate and only cause of the loss, in which case, the carrier should not be made liable.
In Article 1761 of Civil Code provides: “The passenger must observe the diligence of a good father of a
family to avoid injury to himself.
Thus, the carrier may be able to prove that the only cause of the loss of the goods is any of the following
acts of the shipper:
Even if the carrier is responsible for the loss or injury, the passenger is also required to lessen the
damage or injury.
A negligent defendant is held liable to a negligent plaintiff, if he, aware of the plaintiff’s peril, or
according to some authorities, should have been aware of it in the reasonable exercise of due care, had
in fact an opportunity later than that of the plaintiff to avoid an accident.
The Supreme Court reiterated the rule that passengers must take such risks incident to the mode of
travel.
b. Freight
When private property is used for public purpose and is affected with public interest, it ceases to be juris
privati only and becomes subject to regulation.
The shipper may pay the necessary freight before or at the time he deliver the goods to the carrier for
shipment. However, the parties may also stipulate that the freight will be paid by the consignee at the
point of the destination.
In the absence of any agreement, the consignee who is supposed to pay must do so within twenty-four
(24) hours from the time of delivery.
With respect to carriage of goods by sea, the tickets are purchased in advance from ticket outlets or
booking offices. Carriers are not supposed to allow passengers without tickets.
The carrier shall collect/inspect passenger’s ticket within one (1) hour from the vessel’s departure so as
not to disrupt passengers who are either sleeping or resting.
If the consignor or the consignee failed to pay the consideration for the transportation of the goods, this
special right shall prescribe eight days after the delivery has been made, and once prescribed, the carrier
shall have no other action than that corresponding to him as an ordinary creditor.
Demurrage
It is the compensation provided for in the contract of affreightment for the detention of the vessel
beyond the time agreed on for loading and unloading.
CHAPTER 3
EXTRAORDINARY DILIGENCE
I. RATIONALE
Article 1755 of the Civil Code explains extraordinary diligence: “A common carrier is bound to carry the
passengers safely as far as human care and foresight can provide, using the utmost diligence of very
cautious person, with due regard for all circumstances.”
The Code Commission explained why extraordinary diligence must be complied with the performance of
the functions of a common carrier: “This high standard of care is imperatively demanded by the
preciousness of human life and by the consideration that every person must be in every way be
safeguarded against all injury.”
There is no hard and fast rule in the exercise of extraordinary diligence. The law does not prescribe
formula. Thus, the Supreme Court explained in one case that “it is sufficient to reiterate that the source
of a common carrier's legal liability is the contract of carriage, and by entering into said contract, it binds
itself to carry the passengers safely as far as human care and foresight can provide, using the utmost
diligence of a very cautious person, with a due regard for all the circumstances.
The duty to exercise extraordinary diligence is primarily owed to the passengers and the goods that are
being transported.
However, it was ruled in one case that the duty even extends to the members of the crew or
complement operating the carrier.
Additionally, there is authority for the view that extraordinary diligence is owed not only to passengers
or shippers but also to third persons as well. Thus, the Supreme Court ruled in Kapalaran Bus Lines v.
Coronado: “... The passengers and owners of cargo carried by common carrier, they are not only persons
that the law seeks to benefit. For if common carriers carefully observed the statutory standard of
extraordinary diligence in respect of their own passengers, they cannot help but simultaneously benefit
pedestrians and the owners and passengers of other vehicles who are equally entitled to the safe and
convenient use of our roads and highways.”
A. Goods
The parties cannot stipulate that the carrier will not exercise any diligence in the custody of goods.
Neither can it be stipulated that the goods are at the shipper's risk. However, the law allows a
stipulation whereby the carrier will exercise a degree of diligence less than extraordinary with respect to
goods.
B. Passenger
There can be no stipulation lessening the utmost diligence that is owed to passengers. The responsibility
to observe extraordinary diligence cannot be dispensed with or lessened through stipulation or posting
of notices Art. 1757 of the Civil Code).
a. Gratuitous passenger
When a passenger is carried gratuitously, a stipulation limiting the common carrier's liability for
negligence is valid, but not for willful acts or gross negligence. The reduction of fare does not justify any
limitation of the common carrier's liability (Art. 1758 of the Civil Code).
The provision implies that the same degree of diligence is required even if the passenger is carried
gratuitously.
In Lara v. Valencia however, the view expressed by the Supreme Court is to the effect that the diligence
owed to accommodation passenger is only ordinary diligence. The defendant in the said case was not a
common carrier. It was a private carrier who accommodated the deceased passenger.
A. Seaworthiness
The first step that must be undertaken by the common carrier in complying with the duty to exercise
extraordinary diligence in transporting goods or passengers by sea or any other body of water is to make
the vessel seaworthy. Seaworthiness of the vessel is a rule found in the carriage of Goods by Sea Act,
Sec.3.(1).
b. No duty to inquire
It follows that because the implied warranty of seaworthiness, shippers of the goods, when transacting
with common carriers, are not expected to inquire into the vessels seaworthiness, genuineness of its
licenses, and compliance with all maritime laws.
By the same token, passengers cannot be expected to inquire every time they board a common carrier,
whether the carrier possesses the necessary papers or that all the carrier's employees are qualified.
Such a practice would be an absurdity.
c. Meaning of Seaworthiness
The concept of seaworthiness was explained by the Supreme Court: “ (1) Generally, seaworthiness is
that strength, durability and engineering skill made a part of a ship's construction and continued
maintenance, together with a competent and sufficient crew, which would withstand the vicissitudes
and dangers of the elements which might reasonably be expected or encountered during her voyage
without loss or damage to her particular cargo.”
It is necessary that the vessel can be expected to meet the normal hazards of the journey.
Even if vessel was properly maintained and is free from defect, the carrier must not accept goods that
cannot properly be transported in the ship.
The ship must be manned with sufficient number of competent officers and crew.
With respect to vessels that carries passengers, the Maritime Industry Authority prescribes rules which
provide for indispensable equipment and facilities.
B. Overloading
Duty to exercise due diligence likewise includes the duty to take passengers or cargoes that are within
the carrying capacity of the vessel.
C. Proper Storage
The vessel may be suitable for the cargo but this is not enough because the cargo must also be properly
stored.
Memorandum Circular No. 12 issued by MARINA provides that “have the right to be treated by the
carrier and its employees with kindness, respect, courtesy and due consideration. They entitled to be
protected against personal conduct, injurious language, indignities and abuses from the said carrier and
its employees.”
a. Deviation
“If there is an agreement between the shipper and the carrier as to the road over which the conveyance
is to be made, the carrier may not change the route, unless it be by reason of force majeure; and should
he do so without this cause, he shall be liable for all losses which the goods he transports may suffer
from any other cause, beside paying the sum which may have been stipulated for such case.
When on account of said cause of force majeure, the carrier had to take another route which produced
an increase in transportation charges, he shall be reimbursed for such increase upon formal proof
thereof.”
b. Transshipment
Transshipment of freight without legal excuse is a violation of the contract and an infringement of the
right of the shipper, and subjects the carrier to liability if the freight is lost even by a cause otherwise
excepted.
Transshipment, in maritime law, is defined as “the act of taking cargo out of one ship and loading it in
another,” or “the transfer of goods from vessel stipulated in the contract of affreightment to another
vessel before the place of destination named in the contract has been reached.”
A. Condition of vehicle
Common carriers that offer transportation by land are similarly required to make sure that the vehicles
that they are using are in good order or condition.
B. Traffic Rules
The carrier fails to exercise extraordinary diligence if it will not comply with basic traffic rules.
C. Duty to Inspect
There is no unbending duty to inspect each and every package or baggage that is being brought inside
the bus or jeepney. The carrier is duty bound to conduct such inspection depending on the
circumstances.
A carrier is ordinarily not liable for injuries to passengers from fires or explosions caused by articles
brought into its conveyances by other passengers, in the absence of any evidence that the carrier,
through its employees, was aware of the nature of the article or had any reason to anticipate danger
therefrom.
It should be noted that in overland transportation, the common carrier is not bound nor empowered to
make an examination on the contents of packages or bags particularly those handcarried by passengers.
Like vessels, aircrafts that are used by common carriers must also be fit to transport goods and
passengers. The aircraft must be in such a condition that it must be able to withstand the rigors of the
flight. The law that governs the Civil Aeronautic Board calls this “airworthiness.”
Republic Act 779 defines airworthiness means that “an aircraft, its engines, propellers, and other
components and accessories, are of proper design and construction, and are safe for air navigation
purposes, such design and construction being consistent with accepted engineering practice and in
accordance with aerodynamic laws and aircraft science.”
Extraordinary diligence likewise requires the carrier provide competent and well trained crew.
The carrier is likewise deemed to have failed to exercise extraordinary diligence if the plane did not take
the designated route and the tragic crash could have been avoided had it taken said designated route.
It is the duty of airlines to strictly require their personnel to be more accommodating towards
customers, passengers and the general public.
A. Inspection
An airline company is duty bound to inspect each and every cargo that is brought into the aircraft (Sec. 8
of RA 6235).
CHAPTER 4
BILL OF LADING AND OTHER FORMALITIES
I. CONCEPTS
A bill of lading or a ticket is not necessary for the perfection of a contract of carriage. Thus, the
obligation of the carrier to exercise extraordinary diligence in transporting the goods or passengers is
present even if no bill of lading or ticket was issued by the carrier.
Additionally, Sections 25 and 26 of the Electronic Commerce Act (RA No. 8792) allow data messages or
electronic documents to be used in lieu of transport documents in writing or paper documents.
A. Definition
Bill of Lading – is a written acknowledgment, signed by the master of a vessel or other authorized agent
of the carrier, that he has received the described goods from the shipper, to be transported on the
expressed terms to the described place of destination, and to be delivered there to the designated
consignee or parties.
B. Kinds
A bill of lading may be either: (1) negotiable or non-negotiable, (2) clean bill of lading or foul bill of
lading, (3) “on board bill” or “received for shipment bill”, (4) spent bill of lading, (5) through bill of
lading, (6) custody bill of lading, or (7) port bill of lading.
a. Clean bill of lading and foul bill of lading
A clean bill of lading is one which does not contain any notation indicating any defect in the goods. A
foul bill of lading is one that contains such notation.
b. Spent bill of lading
Where the goods are already delivered by the carrier, the carrier is supposed to have retrieved the
covering bill of lading that he issued for the goods. If the goods were already delivered but the bill of
lading was not returned, the bill of lading is called “spent bill of lading.”
c. Through bill of lading
A “through bill of lading” is one issued by a carrier who is obliged to use the facilities of other carriers as
well as his own facilities for the purpose of transporting the goods from the city of the seller to the city
of the buyer, which bill of lading is honored by the second and other interested carriers who do not
issue their own bill of lading.
d. On board bill v. received for shipment bill
An on board bill of lading is one in which it is stated that the goods have been received on board the
vessel which is to carry the goods, whereas a received for shipment bill of lading is one in which it is
stated that the goods have been received with or without specifying the vessel by which the goods are
to be shipped.
e. Custody bill of lading
In this type of bill of lading, the goods are already received by the carrier but the vessel indicated therein
has not yet arrived in the port.
f. Port bill of lading
In a port bill of lading, the vessel indicated in the bill of lading that will transport the goods is already in
the port.
II. NATURE OF BILL OF LADING
It is a long standing jurisprudential rule that a bill of lading operates both: (1) as a receipt and (2) as a
contract. A third characteristic may be added – (3) it is a document of title.
It is a receipt for the goods shipped and a contract to transport and deliver the same as therein
stipulated.
As a contract, it stipulates the rights and obligations assumed by the parties. Being a contract, it is the
law between the parties who are bound by its terms and conditions provided that these are not contrary
to law, morals, good customs, public order, and public policy.
CHAPTER 5
ACTIONS AND DAMAGES IN CASE OF BREACH
I. DISTINCTIONS
Passengers and shippers who suffered damages because of the breach of the contractual obligation of
the carrier may sue the latter for damages. The source of obligation is culpa contractual. This source of
obligation is separate and distinct from quasi-delict under Art. 2176 of the Civil Code.
CHAPTER 6
GENERAL CONCEPTS
III. PROTESTS
Protest is the written statement by the master of a vessel or any authorized officer, attested by proper
officer or a notary, to the effect that damages has been suffered by the ship.
Protest is required under the Code of Commerce in the following cases:
(a) when the vessel makes an arrival under stress
(b) where the vessel is shipwrecked
(c) where the vessel has gone through a huricane or the captain believes that the cargo has suffered
damages or averages
(d) maritime collisions
(di)
IV. ADMIRALTY JURISDICTION
The Regional Trail Court has jurisdiction in all actions in admiralty and maritime jurisdiction where the
demand or claim exceeds P300,000 or, in Metro Manila, where such demand or claim exceeds P400,000.
(Sec. 19(3) of BP Blg. 129.
It means that all other cases where the amount of the demand or claim is less than the jurisdictional
amount in the Regional Trail Court, the jurisdiction are with the metropolitan Trial Court, Municipal Trial
Court or Municipal Circuit Trial Court as the case may be.
CHAPTER 7
VESSELS
I. GENERAL CONCEPTS
A. Definitions
A Vessel or watercraft is defined under Presidential Decree No. 474 as “any barge, lighter, bulk carrier,
passenger ship freighter, tanker, container ship, fishing boats, or other artificial contrivance utilizing any
source of motive power, designed, used or capable of being used as a means of transportation operating
either as a common contract carrier, including fishing vessels covered under Presidential decree No. 43,
except: (i) those owned and/or operated by the Armed Forces of the Philippines and by foreign
governments for military purposes, and (ii) bancas, sailboats and other waterbone contrivance of less
than three gross tons capacity and not motorized.”
B. Construction, Equipment and Manning
The construction, equipment and manning of vessels are subject to the rules issued by the Maritime
Industry Authority. This rule is consistent with the provisions of Code of Commerce particularly Art. 574.
C. Personal Property
Vessels are personal property under Art. 416 of the Civil Code. The same rule can be found in Art. 585 of
the Code of Commerce.
II. OWNERSHIP
A. Acquisition
Vessels may be acquired or transferred by any means recognized by law. Thus, vessels may be sold,
donated, and may even be acquired through prescription.
B. Registration
Vessels are now registered through the Maritime Industry Authority.
It is a long standing rule that the person who is the registered owner of the vessel is presumed to be the
owner of the vessel. Moreover, it is likewise a settled rule that the sale or transfer of the vessel is not
binding on third persons unless the same is registered.
IV. MORTGAGE
Mortgage and other encumbrances over vessels are governed by the provisions of presidential Decree
1521, otherwise known as the Ship mortgage Decree of 1978. The same law as well as Section 12 of
Executive Order 125 as amended is being implemented with respect to annotation/cancellation of
mortgages and transfer of rights and other encumbrances of vessels by Memorandum Circular No. 100
which was issued by MARINA in April 1995.
B. Qualifications
Art.609 of the Code of Commerce states that “Captains, amsters or patrons of vessels must be Filipinos,
have legal capacity to contract in accordance with this code, and prove the skill, and qualifications
necessary to command and direct the vessel, as established by marine and navigation laws, ordinances,
or regulations...”
C. Powers and Functions
A captain commonly performs three (3) distinct roles:
(1) he is a general agent of the shipowner;
(2) he is also commander and technical director of the vessel; and
(3) he is a representative of the country under whose flag he navigates
Of these roles, the most important role is being the commander of the vessel--- operation and
preservation of the vessel during its voyage and the protection of passengers, crew and cargo.
In his role as general agent of the shipowner, the captain has authority to sign bills of lading, carry goods
aboard and deals with the freight earned, agree upon rates and decide whether to take cargo. He has
legal authority to enter into contracts with respect to the vessel subject to applicable limitations by
statute, contract, or instructions and regulations of shipowner.
D. Discretion of Captain or Master
A ship's captainmust be accorded a reasonable measure of discretionary authority to decide what the
safety of the ship and of its crew and cargo. The captain is held responsible for such safety, presumed to
be knowledgeable as to the specific requirements of seaworthiness and the particular risks and perils of
the voyage he is to embark on.
Indeed, if the ship captain is convinced that the ship owner's or ship agent's instructions will result in
imposing unacceptable risks or loss or serious danger to ship or crew, he cannot casually seek absolution
from his responsibility, if a marine casualty occurs, in following such instructions.
E. Pilotage
Pilot - in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports,
or in certain waters.
States possessing harbors have enacted laws or promulgated rules requiring vessels approaching their
ports to take on board pilots licensed under the local law. This is known as compulsory pilotage.
In this juridiction, compulsory pilotage is being implemented in the Port of Manila.
A pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a
pilot thereof until he leaves it anchored or berthed safely. However, his responsibility shall cease at the
moment the Master neglects or refuses to carry out his order.
a. Master and Pilot
Generally, the pilot supersedes the master for the time being in the command and navigation of the
ship, and his orders must be obeyed in all matters connected with her navigation. He becomes the
master pro hac vice and should give all directions as to speed, course, stopping and reversing,
anchooring, towing and the like.
b. Shipowner and Pilot
In general, a pilot is personally liable for damages caused by his own negligence or default to the owners
of the vessel, and to third parties for damages sustained in collision. Such negligence of the pilot in the
performance of duty constitutes a maritime tort.
The owners of the vessel are responsible to the injured party for the acts of the pilot.
c. Pilot and His Association
The fact that the pilot is a member of an association does not make the association jointly and severally
liable. It is because there is no employer-employee relationship.
F. Code of Commerce Provisions on Captains
A shipowner would only be liable for contracts made by the captain (a) when duly authorized or (b) even
when authorized, for ship repairs, or for equipping or provisioning the vessel when the proceeds are
invested therein.
CHAPTER 9
CHARTER PARTIES
B. Contract of Affreightment
The contract of Affreightment is subdivided into:
(1) Time Charter, and
(2) Voyage Charter
Time Charter – the vessel is leased to the charterer for a fixed period of time.
Voyage Charter – the vessel is leased for a single or particular voyage.
In the contract of affreightment, the charterer hires the vessel only, either for a determinate period of a
time or for a single or consecutive voyage, with the shipowner providing for the provisions of the ship,
the wages of the master and crew, and the expenses and maintenance of the vessel.
CHAPTER 10
LOANS ON BOTTOMRY AND RESPONDENTIA
CHAPTER 11
AVERAGES
I. AVERAGES IN GENERAL
Art. 806 of the Code of Commerce considered averages as:
(a) all extraordinary or accidental expenses which may be incurred during the voyage in order to
preserve the vessel, the cargo, or both;
(b) any damages or deteriorations which the vessel may suffer from the time it ppputs to sea from the
port of departure until it casts anchor in the port of destination, and those suffered by the merchandise
from the time they loaded in the port of shipment until they are unloaded in the port of their
consignment.
Petty or ordinary expenses incident to navigation shall be considered ordinary expenses to be defrayed
by the shipowner, unless there is an express agreement to the contrary.
I. CONCEPT
Collision – as applied to Maritime Commerce, is an impact or sudden contact of a vessel with another
whether both are in motion or one stationary.
Zones of collision:
(a) all the time up to the moment when the risk of collision may be said to have begun. Within this zone,
no rule is applicable because none is necessary
(b) the time between the moment when risk of collision begins and the moment when it has become a
practical certainty. The burden is on the vessel required to keep away and avoid the danger
(c) the time between the moment of actual contact. The rule is that the vessel which has forced the
privileged vessel into danger is responsible even if the privileged vessel has committed an error within
that zone
CHAPTER 13
ARRIVAL UNDER STRESS AND SHIPWRECKS
CHAPTER 14
SALVAGE
I. GOVERNING LAW
The law that governs salvage in this jurisdiction is Act No. 2616, otherwise known as the “Salvage Law.”
CHAPTER 15
CARRIAGE OF GOODS BY SEA
I. HISTORY
COGSA was originally passed by the Congress of the United States on April 16, 1936 as Public Act. No.
521. It was later adopted on October 22, 1936 through Commonwealth Act No. 65.
PART III
PUBLIC UTILITIES
CHAPTER 16
PUBLIC SERVICE REGULATIONS
I. CONCEPT
Public Utility – business or service engaged in regularly supplying the public with some commodity or
service of public consequence such as electricity, gas, water, transportation, telephone or telegraph
service.
As such, public utility services are impressed with public interest and concern, hence they cease to juris
privati only.
The term “public service” is therefore included in the broad concept of public utilities.
Section 13 of the Public Service Act provides the definition of public service as the term which “includes
every person that now or hereafter may own, operate, manage, or control in the Philippines, for hire or
compensation xxx and done for general business purpose any common carrier xxx.”
V. REGULATIONS OF RATES
The regulation of public utilities include the regulation of rates that they are charging to the public. This
aspect of regulation is in line with the policy of the State to protect the public against arbitrary and
excessive rates while maintaining the efficiency and quality of services rendered.
A. Non-Delegation
The power to fix the rates of public utilities is a power that has been delegated to the regulatory
administrative agencies. As such, it cannot be further delegated by the said administrative agencies.
· It should be noted, however, that EO no. 213 issued by the President of the Republic of the Philippines
on Nov. 28, 1994, instituted the deregulation of domestic shipping rates.
B. Discrimination
Discrimination in the charging of rates is not allowed under existing law and rules.
CHAPTER 17
POWERS OF THE ADMINISTRATIVE AGENCIES