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Torts and Damages Case Digests 7 ISSUE: Whether respondent herein is liable

for the tort committed by its teachers

Negligence of some business organizations
RULING: YES, it is liable for the tort
Schools and Administrators committed by its teachers
Regino v. Pangasinan Colleges of Science and In Alcuaz v. PSBA,23 the Court characterized the
Technology relationship between the school and the student as
a contract, in which "a student, once admitted by
Tort liability of school despite the existence of contract
the school is considered enrolled for one
between its students
FACTS: In February 2002, PCST held a fund
The school-student relationship is also reciprocal.
raising campaign dubbed the "Rave Party and
Thus, it has consequences appurtenant to and
Dance Revolution," the proceeds of which were
inherent in all contracts of such kind -- it gives rise
to go to the construction of the school's tennis
to bilateral or reciprocal rights and obligations.
and volleyball courts. Each student was required
The school undertakes to provide students with
to pay for two tickets at the price of P100 each.
education sufficient to enable them to pursue
The project was allegedly implemented by
higher education or a profession. On the other
recompensing students who purchased tickets
hand, the students agree to abide by the academic
with additional points in their test scores; those
requirements of the school and to observe its rules
who refused to pay were denied the opportunity
and regulations.2
to take the final examinations.
We recognize the need of a school to fund its
Financially strapped and prohibited by her religion
facilities and to meet astronomical operating costs;
from attending dance parties and celebrations,
this is a reality in running it.
Regino refused to pay for the tickets. On March
14 and March 15, 2002, the scheduled dates of the Crystal v. Cebu International School31 upheld the
final examinations in logic and statistics, her imposition by respondent school of a "land
teachers -- Respondents Rachelle A. Gamurot and purchase deposit" in the amount of P50,000 per
Elissa Baladad -- allegedly disallowed her from student to be used for the "purchase of a piece of
taking the tests. According to petitioner, Gamurot land and for the construction of new buildings
made her sit out her logic class while her and other facilities x x x which the school would
classmates were taking their examinations. The transfer [to] and occupy after the expiration of its
next day, Baladad, after announcing to the entire lease contract over its present site."
class that she was not permitting petitioner and
another student to take their statistics The amount was refundable after the student
examinations for failing to pay for their tickets, graduated or left the school. After noting that the
allegedly ejected them from the classroom. imposition of the fee was made only after prior
Petitioner's pleas ostensibly went unheeded by consultation and approval by the parents of the
Gamurot and Baladad, who unrelentingly students, the Court held that the school
defended their positions as compliance with committed no actionable wrong in refusing to
PCST's policy. admit the children of the petitioners therein for
their failure to pay the "land purchase deposit"
RTC ruling: It ruled in favour of respondents and the 2.5 percent monthly surcharge thereon.
herein on the ground that CHED should have
first dealt with the issue and not the courts
In the present case, PCST imposed the assailed airline's liability as one arising from tort, not one
revenue-raising measure belatedly, in the middle arising form a contract of carriage. In effect, Air
of the semester. It exacted the dance party fee as a France is authority for the view that liability from
condition for the students' taking the final tort may exist even if there is a contract, for the
examinations, and ultimately for its recognition of act that breaks the contract may be also a tort.
their ability to finish a course. The fee, however,
was not part of the school-student contract Child Learning Center v. Tagario
entered into at the start of the school year. Hence,
Negligence of the school to ensure the facilities are
it could not be unilaterally imposed to the
prejudice of the enrollees.
FACTS: he complaint1 alleged that during the
In her Complaint, petitioner also charged that
school year 1990-1991, Timothy was a Grade IV
private respondents "inhumanly punish students x
student at Marymount School, an academic
x x by reason only of their poverty, religious
institution operated and maintained by Child
practice or lowly station in life, which inculcated
Learning Center, Inc. (CLC). In the afternoon of
upon [petitioner] the feelings of guilt, disgrace and
March 5, 1991, between 1 and 2 p.m., Timothy
unworthiness;"33 as a result of such punishment,
entered the boy’s comfort room at the third floor
she was allegedly unable to finish any of her
of the Marymount building to answer the call of
subjects for the second semester of that school
nature. He, however, found himself locked inside
year and had to lag behind in her studies by a full
and unable to get out. Timothy started to panic
year. The acts of respondents supposedly caused
and so he banged and kicked the door and yelled
her extreme humiliation, mental agony and
several times for help. When no help arrived he
"demoralization of unimaginable proportions" in
decided to open the window to call for help. In
violation of Articles 19, 21 and 26 of the Civil
the process of opening the window, Timothy went
right through and fell down three stories. Timothy
Generally, liability for tort arises only between was hospitalized and given medical treatment for
parties not otherwise bound by a contract. An serious multiple physical injuries.
academic institution, however, may be held liable
In its defense,2 CLC maintained that there was
for tort even if it has an existing contract with its
nothing defective about the locking mechanism of
students, since the act that violated the contract
the door and that the fall of Timothy was not due
may also be a tort.
to its fault or negligence. CLC further maintained
A perusal of Article 2176 [of the Civil Code] that it had exercised the due care and diligence of
shows that obligations arising from quasi-delicts a good father of a family to ensure the safety, well-
or tort, also known as extra-contractual being and convenience of its students.
obligations, arise only between parties not
RTC and CA held the school liable for the
otherwise bound by contract, whether express or
damages sustained by Timothy, prompting them
implied. However, this impression has not
to appeal
prevented this Court from determining the
existence of a tort even when there obtains a ISSUE: Whether the school is negligent in
contract. In Air France v. Carrascoso (124 Phil. failing to ensure the facility are functioning
722), the private respondent was awarded damages
for his unwarranted expulsion from a first-class RULING: YES, the school is negligent
seat aboard the petitioner airline. It is noted,
In every tort case filed under Article 2176 of the
however, that the Court referred to the petitioner-
Civil Code, plaintiff has to prove by a
preponderance of evidence: (1) the damages charged with the negligence complained of; and
suffered by the plaintiff; (2) the fault or negligence (3) the accident must not have been due to any
of the defendant or some other person for whose voluntary action or contribution on the part of the
act he must respond; and (3) the connection of person injured.11 Petitioners are clearly
cause and effect between the fault or negligence answerable for failure to see to it that the doors of
and the damages incurred.7 their school toilets are at all times in working
condition. The fact that a student had to go
Fault, in general, signifies a voluntary act or through the window, instead of the door, shows
omission which causes damage to the right of that something was wrong with the door.
another giving rise to an obligation on the part of
the actor to repair such damage. Negligence is the As to the absence of grills on the window,
failure to observe for the protection of the interest petitioners contend that there was no such
of another person that degree of care, precaution requirement under the Building Code.
and vigilance which the circumstances justly Nevertheless, the fact is that such window, as
demand. Fault requires the execution of a positive petitioners themselves point out, was
act which causes damage to another while approximately 1.5 meters from the floor, so that it
negligence consists of the omission to do acts was within reach of a student who finds the
which result in damage to another.8 regular exit, the door, not functioning. Petitioners,
with the due diligence of a good father of the
The door knob was defective. After the incident family, should have anticipated that a student,
of March 5, 1991, said door knob was taken off locked in the toilet by a non-working door, would
the door of the toilet where Timothy was in. The attempt to use the window to call for help or even
architect who testified during the trial declared to get out. Considering all the circumstances,
that although there were standard specifications therefore, there is sufficient basis to sustain a
for door knobs for comfort room[s], and he finding of liability on petitioners’ part.
designed them according to that requirement, he
did not investigate whether the door knob Our pronouncement that Timothy climbed out of
specified in his plans during the construction [was] the window because he could not get out using
actually put in place. This is so because he did not the door, negates petitioners’ other contention
verify whether the door knob he specified w[as] that the proximate cause of the accident was
actually put in place at the particular comfort Timothy’s own negligence. The injuries he
room where Timothy was barred from getting sustained from the fall were the product of a
outside. natural and continuous sequence, unbroken by
any intervening cause, that originated from CLC’s
The fact, however, that Timothy fell out through own negligence.
the window shows that the door could not be
opened from the inside. That sufficiently points to Banks
the fact that something was wrong with the door,
if not the door knob, under the principle of res PNB v. Pike
ipsa loquitor. The doctrine of res ipsa loquitor
Negligence of bank employees in failing to follow the
applies where (1) the accident was of such
standard operating procedure in withdrawal by a
character as to warrant an inference that it would
not have happened except for the defendant’s
negligence; (2) the accident must have been caused FACTS: Complainant Pike often traveled to and
by an agency or instrumentality within the from Japan as a gay entertainer in said country.
exclusive management or control of the person Sometime in 1991, he opened U.S. Dollar Savings
Account No. 0265-704591-0 with herein The court is not impressed with the defense put
petitioner PNB Buendia branch for which he was up by the bank. Its contention that the
issued a corresponding passbook. The complaint withdrawals were authorized by the plaintiff
alleged in substance that before complainant Pike because there was an arrangement between the
left for Japan on 18 March 1993, he kept the bank represented by its Asst. Vice President
aforementioned passbook inside a cabinet under Lorenzo Bal, Jr. and the depositor Norman Y.
lock and key, in his home; that on 19 April 1993, a Pike to the effect that pre-signed withdrawal slips,
few hours after he arrived from Japan, he that is, withdrawal slip signed by the depositor in
discovered that some of his valuables were the presence of Mr. Bal whereby it would be made
missing including the passbook; that he to appear that it was the depositor himself who
immediately reported the incident to the police presented the same to the bank despite the fact
which led to the arrest and prosecution of a that it was another person who presented the
certain Mr. Joy Manuel Davasol; that complainant same should be honored by the bank cannot be
Pike also discovered that Davasol made two (2) sanctioned by the court. Firstly, the court is not
unauthorized withdrawals from his U.S. Dollar satisfied that there was indeed such an
Savings Account arrangement.

Pike went to defendant PNB’s Buendia branch ISSUE: Whether PNB is negligent in allowing
and verbally protested the unauthorized the withdrawal to be made despite the alleged
withdrawals and likewise demanded the return of agreement allowing withdrawal by another
the total withdrawn amount of U.S. $7,500.00, on person
the ground that he never authorized anybody to
withdraw from his account as the signatures RULING: YES, PNB is liable for damages
appearing on the subject withdrawal slips were sustained by Pike
clearly forgeries; that defendant PNB refused to
At this juncture, it bears emphasizing that
credit said amount back to complainant’s U.S.
negligence of banking institutions should never be
Dollar Savings Account without justifiable reason,
countenanced. The negligence here lies in the
and instead, defendant bank wrote him that it
lackadaisical attitude exhibited by employees of
exercised due diligence in the handling of said
petitioner PNB in their treatment of respondent
Pike’s US Dollar Savings Account that resulted in
In their defense, PNB alleged that on March 15, the unauthorized withdrawal of $7,500.00.
1993 at PNB Buendia Branch, Mr. Norman Y. Nevertheless, though its employees may be the
Pike, together with a certain Joy Davasol went to ones negligent, a bank’s liability as an obligor is
see PNB AVP Mr. Lorenzo T. Val (sic), Jr. not merely vicarious but primary, as banks are
purposely to withdraw the amount of $2,000.00. expected to exercise the highest degree of
Mr. Pike also informed AVP Val that he is leaving diligence in the selection and supervision of their
for abroad (Japan) and made verbal instruction to employees,19 and having such obligation, this
honor all withdrawals to be transmitted by his Court cannot ignore the circumstances
Talent Manager and Choreographer, Joy Davasol surrounding the case at bar – how the employees
who shall present pre-signed withdrawal slips of petitioner PNB turned their heads, nay, closed
bearing his (Pike’s) signature. their eyes to the suspicious circumstances
enfolding the two withdrawals subject of the case
RTC and CA ruled in favour of Pike and holding at bar. It may even be said that they went out of
PNB liable for negligence: [T]hat the bank is their ways to disregard standard operating
responsible for such unauthorized withdrawals. procedures formulated to ensure the security of
each and every account that they are handling. specimen signature card of respondent Pike and
Petitioner PNB does not deny that the withdrawal that he met respondent Pike just once so that he
slips used were in breach of standard operating cannot seem to recall what the latter looks like.
procedures of banks in the ordinary and usual
course of banking operations as testified to by one Having admitted that pre-signed withdrawal slips
of its witnesses, Mr. Lorenzo T. Bal do not constitute the normal procedure with
respect to withdrawals by representatives should
PNB’s witness was utterly remiss in protecting the have already put petitioner PNB’s employees on
bank’s client, as well as the bank itself, when he guard. Rather than readily validating and
allowed an account holder to make it appear as if permitting said withdrawals, they should have
he was the one actually withdrawing from an proceeded more cautiously. Clearly, petitioner
account and actually receiving the withdrawn bank’s employee, Lorenzo T. Bal, an Assistant
amount. Ordinarily, banks allow withdrawal by Vice President at that, was exceedingly careless in
someone who is not the account holder so long as his treatment of respondent Pike’s savings
the account holder authorizes his representative to account.
withdraw and receive from his account by signing
on the space provided particularly for such Firearms Dealer
transactions, usually found at the back of
Pacis v. Morales
withdrawal slips. As fittingly found by the courts a
quo, if indeed, respondent Pike signed the Degree of diligence required from dealers of dangerous
withdrawal slips in the presence of Mr. Lorenzo articles such as firearms required extraordinary diligence
Bal, petitioner PNB’s AVP at its Buendia branch,
why did he not call respondent Pike’s attention FACTS: Defendant Morales was in Manila at the
and refer him to the space provided for time. His employee Armando Jarnague, who was
authorizing representatives to withdraw from and the regular caretaker of the gun store was also not
receive the proceeds of such withdrawal? Or, at around. He left earlier and requested sales agents
the very least, sign or initial the same so that he Matibag and Herbolario to look after the gun
could identify the pre-signed withdrawal slips store while he and defendant Morales were away.
made by Mr. Pike? Jarnague entrusted to Matibag and Herbolario a
bunch of keys used in the gun store which
By his own testimony, the witness negated the included the key to the drawer where the fatal gun
very reason for the bank’s bizarre was kept.
"accommodation" of the alleged verbal request of
respondent Pike – that he was a "valued client." It appears that Matibag and Herbolario later
From the aforequoted, it appears that the witness, brought out the gun from the drawer and placed it
Lorenzo Bal, was not even reasonably familiar on top of the table. Attracted by the sight of the
with respondent Pike, yet, he was ready, willing gun, the young Alfred Dennis Pacis got hold of
and able to accommodate the verbal request of the same. Matibag asked Alfred Dennis Pacis to
said depositor. Worse still, the witness still return the gun. The latter followed and handed the
approved the withdrawal transaction without gun to Matibag. It went off, the bullet hitting the
asking for any proof of identification for the young Alfred in the head.
reason that: 1) Davasol was in possession of a pre-
A criminal case for homicide was filed against
signed withdrawal slip; and 2) the witness
Matibag before branch VII of this Court. Matibag,
"recognized" the signature of respondent Pike –
however, was acquitted of the charge against him
even after admitting that he did not bother to
because of the exempting circumstance of
counter check the signature on the slip with the
"accident" under Art. 12, par. 4 of the Revised to ensure that all the guns in his store are not
Penal Code. loaded. Firearms should be stored unloaded and
separate from ammunition when the firearms are
Subsequently, a civil case based on quasi-delict not needed for ready-access defensive use.16 With
was filed. The trial court rendered its decision in more reason, guns accepted by the store for repair
favor of petitioners, as affirmed by CA. should not be loaded precisely because they are
defective and may cause an accidental discharge
ISSUE: Whether petitioner herein is liable for
such as what happened in this case. Respondent
was clearly negligent when he accepted the gun for
RULING: YES, he is liable for negligence repair and placed it inside the drawer without
ensuring first that it was not loaded. In the first
Art. 2176. Whoever by act or omission causes place, the defective gun should have been stored
damage to another, there being fault or negligence, in a vault. Before accepting the defective gun for
is obliged to pay for the damage done. Such fault repair, respondent should have made sure that it
or negligence, if there is no pre-existing was not loaded to prevent any untoward accident.
contractual relation between the parties, is called Indeed, respondent should never accept a firearm
quasi-delict and is governed by the provisions of from another person, until the cylinder or action is
this Chapter. open and he has personally checked that the
weapon is completely unloaded.17 For failing to
This case involves the accidental discharge of a
insure that the gun was not loaded, respondent
firearm inside a gun store.1avvphi1 Under PNP
himself was negligent. Furthermore, it was not
Circular No. 9, entitled the "Policy on Firearms
shown in this case whether respondent had a
and Ammunition Dealership/Repair," a person
License to Repair which authorizes him to repair
who is in the business of purchasing and selling of
defective firearms to restore its original
firearms and ammunition must maintain basic
composition or enhance or upgrade firearms.18
security and safety requirements of a gun dealer,
otherwise his License to Operate Dealership will Clearly, respondent did not exercise the degree of
be suspended or canceled.14 care and diligence required of a good father of a
family, much less the degree of care required of
Indeed, a higher degree of care is required of
someone dealing with dangerous weapons, as
someone who has in his possession or under his
would exempt him from liability in this case.
control an instrumentality extremely dangerous in
character, such as dangerous weapons or Security Agency and Guards
substances. Such person in possession or control
of dangerous instrumentalities has the duty to take Safeguard Security Agency v. Tangco
exceptional precautions to prevent any injury
Diligence in the selection and supervision of employees
being done thereby.15 Unlike the ordinary affairs
of life or business which involve little or no risk, a FACTS: On November 3, 1997, at about 2:50
business dealing with dangerous weapons requires p.m., Evangeline Tangco (Evangeline) went to
the exercise of a higher degree of care. Ecology Bank, Katipunan Branch, Quezon City,
to renew her time deposit per advise of the bank's
As a gun store owner, respondent is presumed to
cashier as she would sign a specimen card.
be knowledgeable about firearms safety and
Evangeline, a duly licensed firearm holder with
should have known never to keep a loaded
corresponding permit to carry the same outside
weapon in his store to avoid unreasonable risk of
her residence, approached security guard Pajarillo,
harm or injury to others. Respondent has the duty
who was stationed outside the bank, and pulled
out her firearm from her bag to deposit the same the duty to see to it that such regulations and
for safekeeping. Suddenly, Pajarillo shot instructions are faithfully complied with.
Evangeline with his service shotgun hitting her in
the abdomen instantly causing her death. ISSUE: Whether petitioner herein has
exercised the required diligence in the
Lauro Tangco, Evangeline's husband, together supervision of its EEs
with his six minor children (respondents) filed
with the Regional Trial Court (RTC) of Quezon RULING: NO, it failed to exercise the
City, a criminal case of Homicide against Pajarillo, required diligence
docketed as Criminal Case No. 0-97-73806 and
Pajarillo testified that when Evangeline aimed the
assigned to Branch 78. Respondents reserved their
gun at him at a distance of about one meter or one
right to file a separate civil action in the said
arm's length26 he stepped backward, loaded the
criminal case.
chamber of his gun and shot her.27 It is however
January 14, 1998, respondents filed with RTC, unimaginable that petitioner Pajarillo could still
Branch 273, Marikina City, a complaint5 for make such movements if indeed the gun was
damages against Pajarillo for negligently shooting already pointed at him. Any movement could have
Evangeline and against Safeguard for failing to prompted Evangeline to pull the trigger to shoot
observe the diligence of a good father of a family him.
to prevent the damage committed by its security
Petitioner Pajarillo would like to justify his action
in shooting Evangeline on his mere apprehension
In their Answer,6 petitioners denied the material that Evangeline will stage a bank robbery.
allegations in the complaint and alleged that However, such claim is befuddled by his own
Safeguard exercised the diligence of a good father testimony. Pajarillo testified that prior to the
of a family in the selection and supervision of incident, he saw Evangeline roaming under the fly
Pajarillo; that Evangeline's death was not due to over which was about 10 meters away from the
Pajarillo's negligence as the latter acted only in bank28 and saw her talking to a man thereat;29
self-defense. that she left the man under the fly-over, crossed
the street and approached the bank. However,
RTC ruled in favour of respondents herein as except for the bare testimony of Pajarillo, the
affirmed by CA: It ruled that while it may be records do not show that indeed Evangeline was
conceded that Safeguard had perhaps exercised seen roaming near the vicinity of the bank and
care in the selection of its employees, particularly acting suspiciously prior to the shooting incident.
of Pajarillo, there was no sufficient evidence to In fact, there is no evidence that Pajarillo called
show that Safeguard exercised the diligence of a the attention of his head guard or the bank's
good father of a family in the supervision of its branch manager regarding his concerns or that he
employee; that Safeguard's evidence simply reported the same to the police authorities whose
showed that it required its guards to attend outpost is just about 15 meters from the bank.
trainings and seminars which is not the
supervision contemplated under the law; that Moreover, if Evangeline was already roaming the
supervision includes not only the issuance of vicinity of the bank, she could have already
regulations and instructions designed for the apprised herself that Pajarillo, who was posted
protection of persons and property, for the outside the bank, was armed with a shotgun; that
guidance of their servants and employees, but also there were two guards inside the bank30 manning
the entrance door. Thus, it is quite incredible that
if she really had a companion, she would leave
him under the fly-over which is 10 meters far implementation and monitoring of consistent
from the bank and stage a bank robbery all by compliance with said rules should be the constant
herself without a back-up. In fact, she would have concern of the employer, acting through
known, after surveying the area, that aiming her dependable supervisors who should regularly
gun at Pajarillo would not ensure entrance to the report on their supervisory functions.36 To
bank as there were guards manning the entrance establish these factors in a trial involving the issue
door. of vicarious liability, employers must submit
concrete proof, including documentary evidence.
Considering that unlawful aggression on the part
of Evangeline is absent, Pajarillo's claim of self- We agree with the RTC's finding that Safeguard
defense cannot be accepted specially when such had exercised the diligence in the selection of
claim was uncorroborated by any separate Pajarillo since the record shows that Pajarillo
competent evidence other than his testimony underwent a psychological and neuro-psychiatric
which was even doubtful. Pajarillo's apprehension evaluation conducted by the St. Martin de Porres
that Evangeline will shoot him to stage a bank Center where no psychoses ideations were noted,
robbery has no basis at all. It is therefore clear that submitted a certification on the Pre-licensing
the alleged threat of bank robbery was just a training course for security guards, as well as
figment of Pajarillo's imagination which caused police and NBI clearances.
such unfounded unlawful aggression on his part.
The RTC did not err in ruling that Safeguard fell
As the employer of Pajarillo, Safeguard is short of the diligence required in the supervision
primarily and solidarily liable for the quasi-delict of its employee, particularly Pajarillo. In this case,
committed by the former. Safeguard is presumed while Safeguard presented Capt. James Camero,
to be negligent in the selection and supervision of its Director for Operations, who testified on the
his employee by operation of law. This issuance of company rules and regulations, such as
presumption may be overcome only by the Guidelines of Guards Who Will Be Assigned
satisfactorily showing that the employer exercised To Banks,37 Weapons Training,38 Safeguard
the care and the diligence of a good father of a Training Center Marksmanship Training Lesson
family in the selection and the supervision of its Plan,39 Disciplinary/Corrective Sanctions,40 it
employee. had also been established during Camero's cross-
examination that Pajarillo was not aware of such
In the selection of prospective employees, rules and regulations.41 Notwithstanding
employers are required to examine them as to Camero's clarification on his re-direct examination
their qualifications, experience, and service that these company rules and regulations are
records.35 On the other hand, due diligence in the lesson plans as a basis of guidelines of the
supervision of employees includes the formulation instructors during classroom instructions and not
of suitable rules and regulations for the guidance necessary to give students copy of the same,42 the
of employees and the issuance of proper records do not show that Pajarillo had attended
instructions intended for the protection of the such classroom instructions.
public and persons with whom the employer has
relations through his or its employees and the The records also failed to show that there was
imposition of necessary disciplinary measures adequate training and continuous evaluation of the
upon employees in case of breach or as may be security guard's performance. Pajarillo had only
warranted to ensure the performance of acts attended an in-service training on March 1, 1997
indispensable to the business of and beneficial to conducted by Toyota Sta. Rosa, his first
their employer. To this, we add that actual assignment as security guard of Safeguard, which
was in collaboration with Safeguard. It was and a sanitary inspector ready to administer
established that the concept of such training was injections or operate the oxygen resuscitator if the
purely on security of equipments to be guarded need should arise.
and protection of the life of the employees.43
In the afternoon of July 5, 1952, at about 1:00
It had not been established that after Pajarillo's o'clock, Dominador Ong, a 14-year old high
training in Toyota, Safeguard had ever conducted school student and boy scout, and his brothers
further training of Pajarillo when he was later Ruben and Eusebio, went to defendant's
assigned to guard a bank which has a different swimming pools. This was not the first time that
nature of business with that of Toyota. In fact, the three brothers had gone to said natatorium for
Pajarillo testified that being on duty in a bank is they had already been there four or five times
different from being on duty in a factory since a before. They arrived at the natatorium at about
bank is a very sensitive area. 1:45 p.m. After paying the requisite admission fee,
they immediately went to one of the small pools
Resort and Swimming Pool Operator where the water was shallow. At about 4:35 p.m.,
Dominador Ong told his brothers that he was
Ong v. Metropolitan Water District
going to the locker room in an adjoining building
Illustrative case of how diligence required was exercised to drink a bottle of coke. Upon hearing this,
Ruben and Eusebio went to the bigger pool
FACTS: Defendant owns and operates three leaving Dominador in the small pool and so they
recreational swimming pools at its Balara filters, did not see the latter when he left the pool to get a
Diliman, Quezon City, to which people are invited bottle of coke. In that afternoon, there were two
and for which a nominal fee of P0.50 for adults lifeguards on duty in the pool compound, namely,
and P0.20 for children is charged. The main pool Manuel Abaño and Mario Villanueva.
it between two small pools of oval shape known
as the "Wading pool" and the "Beginners Pool." Between 4:40 to 4:45 p.m., some boys who were
There are diving boards in the big pools and the in the pool area informed a bather by the name of
depths of the water at different parts are indicated Andres Hagad, Jr., that somebody was swimming
by appropriate marks on the wall. The care and under water for quite a long time. Another boy
supervision of the pools and the users thereof is informed lifeguard Manuel Abaño of the same
entrusted to a recreational section composed of happening and Abaño immediately jumped into
Simeon Chongco as chief, Armando Rule, a male the big swimming pool and retrieved the
nurse, and six lifeguards who had taken the life- apparently lifeless body of Dominador Ong from
saving course given by the Philippine Red Cross at the bottom. The body was placed at the edge of
the YMCA in Manila. For the safety of its patrons, the pool and Abaño immediately applied manual
defendant has provided the pools with a ring artificial respiration. Soon after, male nurse
buoy, toy roof, towing line, saving kit and a Armando Rule came to render assistance,
resuscitator. There is also a sanitary inspector who followed by sanitary inspector Iluminado Vicente
is in charge of a clinic established for the benefit who, after being called by phone from the clinic
of the patrons. Defendant has also on display in a by one of the security guards, boarded a jeep
conspicuous place certain rules and regulations carrying with him the resuscitator and a medicine
governing the use of the pools, one of which kit, and upon arriving he injected the boy with
prohibits the swimming in the pool alone or camphorated oil. After the injection, Vicente left
without any attendant. Although defendant does on a jeep in order to fetch Dr. Ayuyao from the
not maintain a full-time physician in the University of the Philippines. Meanwhile, Abaño
swimming pool compound, it has however a nurse continued the artificial manual respiration, and
when this failed to revive him, they applied the comic magazine when the alarm was given for
resuscitator until the two oxygen tanks were which reason he failed to immediately respond to
exhausted. Not long thereafter, Dr. Ayuyao the alarm. On the contrary, what Ruben Ong
arrived with another resuscitator, but the same particularly emphasized therein was that after the
became of no use because he found the boy lifeguard heard the shouts for help, the latter
already dead. The doctor ordered that the body be immediately dived into the pool to retrieve the
taken to the clinic. person under water who turned out to be his
brother. For this reason, the trial court made this
Plaintiffs spouses seek to recover from defendant, conclusion: "The testimony of Ruben Ong and
a government-owned corporation, the sum of Andres Hagad, Jr. as to the alleged failure of the
P50,000 as damages, P5,000 as funeral expenses, lifeguard Abaño to immediately respond to their
and P11,000 as attorneys' fees, for the death of call may therefore be disregarded because they are
their son Dominador Ong in one of the belied by their written statements. (Emphasis
swimming pools operated by defendant. supplied.)
Defendant admits the fact that plaintiffs' son was On the other hand, there is sufficient evidence to
drowned in one of its swimming pools but avers show that appellee has taken all necessary
that his death was caused by his own negligence or precautions to avoid danger to the lives of its
by unavoidable accident. Defendant also avers patrons or prevent accident which may cause their
that it had exercised due diligence in the selection death. Thus, it has been shown that the swimming
of, and supervision over, its employees and that it pools of appellee are provided with a ring buoy,
had observed the diligence required by law under toy roof, towing line, oxygen resuscitator and a
the circumstances. first aid medicine kit. The bottom of the pools is
painted with black colors so as to insure clear
After trial, the lower court found that the action
visibility. There is on display in a conspicuous
of plaintiffs is untenable and dismissed the
place within the area certain rules and regulations
complaint without pronouncement as to costs.
governing the use of the pools. Appellee employs
ISSUE: Whether respondent herein had six lifeguards who are all trained as they had taken
exercised all the required diligence, thereby a course for that purpose and were issued
exonerating them of liability certificates of proficiency. These lifeguards work
on schedule prepared by their chief and arranged
RULING: YES, they had exercised all the in such a way as to have two guards at a time on
required diligence duty to look after the safety of the bathers. There
is a male nurse and a sanitary inspector with a
The claim of these two witnesses not only was
clinic provided with oxygen resuscitator. And
vehemently denied by lifeguard Abaño, but is
there are security guards who are available always
belied by the written statements given by them in
in case of emergency.
the investigation conducted by the Police
Department of Quezon City approximately three The record also shows that when the body of
hours after the happening of the accident. Thus, minor Ong was retrieved from the bottom of the
these two boys admitted in the investigation that pool, the employees of appellee did everything
they narrated in their statements everything they possible to bring him back to life. Thus, after he
knew of the accident, but, as found by the trial, was placed at the edge of the pool, lifeguard
nowhere in said statements do they state that the Abaño immediately gave him manual artificial
lifeguard was chatting with the security guard at respiration. Soon thereafter, nurse Armando Rule
the gate of the swimming pool or was reading a arrived, followed by sanitary inspector Iluminado
Vicente who brought with him an oxygen retrieving the body all efforts at the disposal of
resuscitator. When they found that the pulse of appellee had been put into play in order to bring
the boy was abnormal, the inspector immediately him back to life, it is clear that there is no room
injected him with camphorated oil. When the for the application of the doctrine now invoked by
manual artificial respiration proved ineffective appellants to impute liability to appellee.
they applied the oxygen resuscitator until its
contents were exhausted. And while all these Hotels
efforts were being made, they sent for Dr. Ayuyao
Makati Shangri-la v. Harper
from the University of the Philippines who
however came late because upon examining the Negligence brought about by various circumstance that
body he found him to be already dead. All of the should have raised the hotel’s awareness
foregoing shows that appellee has done what is
humanly possible under the circumstances to FACTS: In the first week of November 1999,
restore life to minor Ong and for that reason it is Christian Harper came to Manila on a business
unfair to hold it liable for his death. trip as the Business Development Manager for
Asia of ALSTOM Power Norway AS, an
We do not see how this doctrine may apply engineering firm with worldwide operations. He
considering that the record does not show how checked in at the Shangri-La Hotel and was
minor Ong came into the big swimming pool. The billeted at Room 1428. He was due to check out
only thing the record discloses is that minor Ong on November 6, 1999. In the early morning of
informed his elder brothers that he was going to that date, however, he was murdered inside his
the locker room to drink a bottle of coke but that hotel room by still unidentified malefactors. He
from that time on nobody knew what happened was then 30 years old.
to him until his lifeless body was retrieved. The
doctrine of last clear chance simply means that the How the crime was discovered was a story in
negligence of a claimant does not preclude a itself. A routine verification call from the
recovery for the negligence of defendant where it American Express Card Company to cardholder
appears that the latter, by exercising reasonable Harper’s residence in Oslo, Norway (i.e., Bygdoy
care and prudence, might have avoided injurious Terasse 16, 0287 Oslo, Norway) led to the
consequences to claimant notwithstanding his discovery. It appears that at around 11:00 am of
negligence. Or, "As the doctrine usually is stated, a November 6, 1999, a Caucasian male of about 30–
person who has the last clear chance or 32 years in age, 5’4" in height, clad in maroon long
opportunity of avoiding an accident, sleeves, black denims and black shoes, entered the
notwithstanding the negligent acts of his Alexis Jewelry Store in Glorietta, Ayala Center,
opponent or the negligence of a third person Makati City and expressed interest in purchasing a
which is imputed to his opponent, is considered in Cartier lady’s watch valued at ₱ 320,000.00 with
law solely responsible for the consequences of the the use of two Mastercard credit cards and an
accident." American Express credit card issued in the name
of Harper. But the customer’s difficulty in
Since it is not known how minor Ong came into answering the queries phoned in by a credit card
the big swimming pool and it being apparent that representative sufficiently aroused the suspicion of
he went there without any companion in violation saleslady Anna Liza Lumba (Lumba), who asked
of one of the regulations of appellee as regards the for the customer’s passport upon suggestion of
use of the pools, and it appearing that lifeguard the credit card representative to put the credit
Abano responded to the call for help as soon as cards on hold. Probably sensing trouble for
his attention was called to it and immediately after
himself, the customer hurriedly left the store, and security is Col. Rodrigo De Guzman who was
left the three credit cards and the passport behind. then the Chief Security Officer of defendant hotel
for the year 1999. He is a retired police officer and
In the meanwhile, Harper’s family in Norway had vast experience in security jobs. He was
must have called him at his hotel room to inform likewise a member of the elite Presidential Security
him about the attempt to use his American Group.
Express card. Not getting any response from the
room, his family requested Raymond Alarcon, the He testified that upon taking over the job as the
Duty Manager of the Shangri-La Hotel, to check chief of the security force of the hotel, he made an
on Harper’s room. Alarcon and a security assessment of the security situation. Col. De
personnel went to Room 1428 at 11:27 a.m., and Guzman was not satisfied with the security set-up
were shocked to discover Harper’s lifeless body and told the hotel management of his desire to
on the bed. improve it. In his testimony, De Guzman testified
that at the time he took over, he noticed that there
Mendoza subsequently viewed the closed circuit were few guards in the elevated portion of the
television (CCTV) tapes, from which he found hotel where the rooms were located. The existing
that Harper had entered his room at 12:14 a.m. of security scheme then was one guard for 3 or 4
November 6, 1999, and had been followed into floors. He likewise testified that he recommended
the room at 12:17 a.m. by a woman; that another to the hotel management that at least one guard
person, a Caucasian male, had entered Harper’s must be assigned per floor especially considering
room at 2:48 a.m.; that the woman had left the that the hotel has a long "L-shaped" hallway, such
room at around 5:33 a.m.; and that the Caucasian that one cannot see both ends of the hallway. He
male had come out at 5:46 a.m. further opined that "even one guard in that
hallway is not enough because of the blind portion
A case was filed by the heirs of the deceased
of the hallway."
against petitioner herein for their negligence which
prompted the murderer to succeed in trespassing On cross-examination, Col. De Guzman testified
into the area of the hotel’s private rooms area and that the security of the hotel was adequate at the
into the room of the said deceased on account of time the crime occurred because the hotel was not
the hotel’s gross negligence in providing the most fully booked. He qualified his testimony on direct
basic security system of its guests, the lack of in that his recommendation of one guard per floor
which owing to the acts or omissions of its is the "ideal" set-up when the hotel is fully-
employees was the immediate cause of the tragic booked.
death of said deceased.
Be that as it may, it must be noted that Col. De
RTC ruled in favour of the heirs, as affirmed by Guzman also testified that the reason why the
CA. hotel management disapproved his
recommendation was that the hotel was not doing
ISSUE: Whether the hotel is liable for the
well. It is for this reason that the hotel
death of Harper due to its negligence
management did not heed the recommendation of
RULING: YES, it is liable for the death of Col. De Guzman, no matter how sound the
Harper recommendation was, and whether the hotel is
fully-booked or not.
Of the witnesses presented by plaintiffs to prove
its (sic) case, the only one with competence to There is no dispute that even prior to the untimely
testify on the issue of adequacy or inadequacy of demise of Mr. Harper, defendant was duly
forewarned of the security lapses in the hotel. Col. When one registers (as) a guest of a hotel, he
De Guzman was particularly concerned with the makes the establishment the guardian of his life
security of the private areas where the guest and his personal belongings during his stay. It is a
rooms are. He wanted not just one roving guard in standard procedure of the management of the
every three or four floors. He insisted there must hotel to screen visitors who call on their guests at
be at least one in each floor considering the length their rooms. The murder of Harper could have
and the shape of the corridors. The trained eyes of been avoided had the security guards of the
a security officer was (sic) looking at that deadly Shangri-La Hotel in Makati dutifully observed this
scenario resulting from that wide security breach standard procedure."
as that which befell Christian Harper.
The hotel business is imbued with public interest.
In any case, the ghastly incident could have been Catering to the public, hotelkeepers are bound to
prevented had there been adequate security in provide not only lodging for their guests but also
each of the hotel floors. This, coupled with the security to the persons and belongings of their
earlier recommendation of Col. De Guzman to guests. The twin duty constitutes the essence of
the hotel management to act on the security lapses the business.43 Applying by analogy Article
of the hotel, raises the presumption that the crime 2000,44 Article 200145 and Article 200246 of the
was foreseeable. Civil Code (all of which concerned the
hotelkeepers’ degree of care and responsibility as
Moreover, in applying the premises liability rule in to the personal effects of their guests), we hold
the instant case as it is applied in some jurisdiction that there is much greater reason to apply the
(sic) in the United States, it is enough that guests same if not greater degree of care and
are injured while inside the hotel premises to make responsibility when the lives and personal safety
the hotelkeeper liable. With great caution should of their guests are involved. Otherwise, the
the liability of the hotelkeeper be enforced when a hotelkeepers would simply stand idly by as
guest died inside the hotel premises. strangers have unrestricted access to all the hotel
rooms on the pretense of being visitors of the
It also bears stressing that there were prior
guests, without being held liable should anything
incidents that occurred in the hotel which should
untoward befall the unwary guests. That would be
have forewarned the hotel management of the
absurd, something that no good law would ever
security lapses of the hotel. As testified to by Col.
De Guzman, "there were ‘minor’ incidents" (loss
of items) before the happening of the instant case. Theater
These "minor" incidents may be of little Gotesco Investment Corporation v. Chatto
significance to the hotel, yet relative to the instant
case, it speaks volume. This should have served as Where a patron of a theater or other place of public
a caveat that the hotel security has lapses. amusement is injured, and the thing that caused the injury
is wholly and exclusively under the control and management
Makati Shangri-La Hotel, to stress, is a five-star of the defendant
hotel. The "reasonable care" that it must exercise
for the safety and comfort of its guests should be FACTS: The evidence shows that in the
commensurate with the grade and quality of the afternoon of June 4, 1982 plaintiff Gloria E.
accommodation it offers. If there is such a thing Chatto, and her 15-year old daughter, plaintiff
as "five-star hotel security", the guests at Makati Lina Delza E. Chatto went to see the movie
Shangri-La surely deserves just that! "Mother Dear" at Superama I theater, owned by
defendant Gotesco Investment Corporation. They
bought balcony tickets but even then were unable majeure. To Our mind, the real reason why Mr.
to find seats considering the number of people Ong could not explain the cause or reason is that
patronizing the movie. Hardly ten (10) minutes either he did not actually conduct the investigation
after entering the theater, the ceiling of its balcony or that he is, as the respondent Court impliedly
collapsed. The theater was plunged into darkness held, incompetent. He is not an engineer, but an
and pandemonium ensued. Shocked and hurt, architect who had not even passed the
plaintiffs managed to crawl under the fallen government's examination. Verily, post-incident
ceiling. investigation cannot be considered as material to
the present proceedings. What is significant is the
Defendant tried to avoid liability by alleging that finding of the trial court, affirmed by the
the collapse of the ceiling of its theater was done respondent Court, that the collapse was due to
due to force majeure. It maintained that its theater construction defects. There was no evidence
did not suffer from any structural or construction offered to overturn this finding. The building was
defect. constructed barely four (4) years prior to the
accident in question. It was not shown that any of
RTC ruled in favour of Gloria Chatto, as affirmed
the causes denominates as force majeure obtained
by CA.
immediately before or at the time of the collapse
ISSUE: Whether the incident was fortuitous of the ceiling. Such defects could have been easily
event, thereby absolving petitioner of any discovered if only petitioner exercised due
liability diligence and care in keeping and maintaining the
premises. But as disclosed by the testimony of Mr.
RULING: NO, it is not fortuitous event Ong, there was no adequate inspection of the
because petitioner failed to prove its existence premises before the date of the accident. His
answers to the leading questions on inspection
The rule is well-settled that the jurisdiction of this
disclosed neither the exact dates of said.
Court in cases brought to it from the Court of
inspection nor the nature and extent of the same.
Appeals is limited to reviewing and revising the
That the structural designs and plans of the
errors of law imputed to it, its findings of fact
building were duly approved by the City Engineer
being conclusive, 10 except only where a case is
and the building permits and certificate of
shown as coming under the accepted exception.
occupancy were issued do not at all prove that
11 None of the exceptions which this Court has
there were no defects in the construction,
painstakingly summarized in several cases 12 has
especially as regards the ceiling, considering that
been shown to exist in this petition. Petitioner's
no testimony was offered to prove that it was ever
claim that the collapse of the ceiling of the
inspected at all.
theater's balcony was due to force majeure is not
even founded on facts because its own witness, Where a patron of a theater or other place of
Mr. Jesus Lim Ong, admitted that "he could not public amusement is injured, and the thing that
give any reason why the ceiling collapsed." Having caused the injury is wholly and exclusively under
interposed it as a defense, it had the burden to the control and management of the defendant,
prove that the collapse was indeed caused by force and the accident is such as in the ordinary course
majeure. It could not have collapsed without a of events would not have happened if proper care
cause. That Mr. Ong could not offer any had been exercised, its occurrence raises a
explanation does not imply force majeure. presumption or permits of an inference of
negligence on the part of the defendant.
Petitioner could have easily discovered the cause
of the collapse if indeed it were due to force
Besides, even assuming for the sake of argument 2006, De Guzman, through counsel, demanded
that, as petitioner vigorously insists, the cause of the repair of the fence in accordance with the
the collapse was due to force majeure, petitioner plan. In response, the Contractor claimed that the
would still be liable because it was guilty of destruction of the fence was an act of God and
negligence, which the trial court denominated as expressed willingness to discuss the matter to
gross. As gleaned from Bouvier's definition of and avoid unnecessary litigation. De Guzman,
Cockburn's elucidation on force majeure for one however, reiterated her demand for the restoration
to be exempt from any liability because of it, he of the wall without additional cost on her part, or
must have exercised care, i.e., he should not have in the alternative, for the Contractor to make an
been guilty of negligence. offer of a certain amount by way of compensation
for the damages she sustained. Her demand was
Building Contractors not heeded.
De Guzman v. Tumolva On February 14, 2008, De Guzman filed a
Request for Arbitration5 of the dispute before the
Failure to follow the required specification in the agreement
Construction Industry Arbitration Commission
constitute negligence
FACTS: On September 6, 2004, petitioner
In his Answer with Counterclaim, the Contractor
Emerita M. De Guzman (De Guzman),
denied liability for the damaged fence claiming,
represented by her attorneys-in-fact, Lourdes
among others, that its destruction was an act of
Rivera and Dhonna Chan, and respondent
God. He admitted making deviations from the
Antonio Tumolva, doing business under the name
plan, but pointed out that the same were made
and style A.M. Tumolva Engineering Works (the
with the knowledge and consent of De Guzman
Contractor), entered into a Construction
through her representatives, Architect Quin
Agreement3 (Agreement) for the construction of
Baterna and Project Engineer Rodello Santos
an orphanage consisting of an administration
(Engineer Santos), who were present during the
building, directors/guests house, dining and
construction of the fence.
service building, children’s dormitory, male staff
house, and covered walkways in Brgy. Pulong CIAC ruled in favour of De Guzman and
Bunga, Purok 4, Silang, Cavite, for a contract price affirmed by CA with modifications as to the award
of ₱ 15,982,150.39. Incorporated in the of damages
Agreement was the plan and specifications of the
perimeter fence. The Contractor, however, made ISSUE: Whether the destruction of the
deviations from the agreed plan4 with respect to perimeter fence due to the typhoon is
the perimeter fence of the orphanage. considered fortuitous event

On September 6, 2005, after the completion of RULING: NO, it is not considered as

the project, De Guzman issued a Certificate of fortuitous event
Acceptance. For his part, the Contractor issued a
quitclaim acknowledging the termination of the There is no doubt that De Guzman incurred
contract and the full compliance therewith by De damages as a result of the collapse of the
Guzman. perimeter fence. The Contractor is clearly guilty of
negligence and, therefore, liable for the damages
In November 2006, during typhoon "Milenyo," a caused. As correctly found by the CA:
portion of the perimeter fence collapsed and other
portions tilted. In her Letter dated December 5,
Nonetheless, the Court sustains the CIAC’s Cargolift Shipping Inc. v. L. Actuario
conclusion that the CONTRACTOR was Marketing and Skyland Brokerage
negligent in failing to place weepholes on the
collapsed portion of the perimeter fence. Fault or A tug and its owners must observe ordinary diligence in the
negligence of the obligor consists in his failure to performance of its obligation under a contract of towage.
exercise due care and prudence in the
FACTS: Sometime in March 1993, respondent L.
performance of the obligation as the nature of the
Acuario Marketing Corp., ("Acuario") and
obligation so demands, taking into account the
respondent Skyland Brokerage, Inc., ("Skyland")
particulars of each case. It should be emphasized
entered into a time charter agreement4 whereby
that even if not provided for in the plan, the
Acuario leased to Skyland its L. Acuario II barge
CONTRACTOR himself admitted the necessity
for use by the latter in transporting electrical posts
of putting weepholes and claimed to have actually
from Manila to Limay, Bataan. At the same time,
placed them in view of the higher ground
Skyland also entered into a separate contract5 with
elevation of the adjacent lot vis-à-vis the level
petitioner Cargolift, for the latter’s tugboats to tow
ground of the construction site. Since he was the
the aforesaid barge.
one who levelled the ground and was, thus, aware
that the lowest portion of the adjoining land was In accordance with the foregoing contracts,
nearest the perimeter fence, he should have petitioner’s tugboat M/T Beejay left the Manila
ensured that sufficient weepholes were placed South Harbor on April 1, 1993 with Acuario’s
because water would naturally flow towards the barge in tow. It reached the port of Limay, Bataan
fence. on April 3, 1993, whereupon M/T Beejay
disengaged and once again set sail for Manila.
However, the CONTRACTOR failed to refute
Petitioner’s other tugboat, the M/T Count,
Mr. Ramos’ claim that the collapsed portion of the
remained in Bataan to secure the barge for
perimeter fence lacked weepholes. Records also
show that the omission of such weepholes and/or
their being plastered over resulted from his failure The barge was brought to Acuario’s shipyard
to exercise the requisite degree of supervision over where it was allegedly discovered by Acuario’s dry-
the work, which is the same reason he was unable docking officer, Guillermo Nacu, Jr., that the
to discover the deviations from the plan until the barge was listing due to a leak in its hull.
fence collapsed. Hence, the CONTRACTOR According to Nacu, he was informed by the
cannot be relieved from liability therefor.10 skipper of the tugboat that the damage was
sustained in Bataan. To confirm the same, Nacu
The Court finds no compelling reason to deviate
ordered an underwater survey of the barge and
from this factual finding by the CIAC, as affirmed
prepared a damage report dated April 14, 1993.
by the CA. It is settled that findings of fact of
No representative of Skyland was present during
quasi-judicial bodies, which have acquired
the inspection although it was furnished with a
expertise because their jurisdiction is confined to
copy of the said report.
specific matters, are generally accorded not only
respect, but also finality, especially when affirmed The barge was consequently dry-docked for
by the CA. In particular, factual findings of repairs at the Western Shipyard from April 16 to
construction arbitrators are final and conclusive April 26, 1993. Acuario spent the total sum of
and not reviewable by this Court on appeal. P97,021.20 for the repairs.6

Towage Pursuant to its contract with Skyland which

provided that "(a)ny damage or loss on the barge
due to the fault or negligence of charterers shall be prevail over the bare denials of Skyland and
the responsibility of the (c)harterer or his petitioner.
representative,"7 Acuario wrote Skyland seeking
reimbursement of its repair costs, failing which, it ISSUE: Whether Cargolift should be held
filed a complaint for damages against Skyland liable despite not being a privy to the contract
before the Regional Trial Court of Caloocan City between respondents herein

Skyland, in turn, filed a third-party complaint8 RULING: YES, it should be liable

against petitioner alleging that it was responsible
It is not Acuario that is seeking damages from
for the damage sustained by the barge.
petitioner but Skyland, with whom it undoubtedly
According to Acuario and its witnesses, the had a juridical tie. While Acuario could hold
weather in Bataan shifted drastically at dawn of Skyland liable under its charter agreement, Skyland
April 7, 1993 while the barge was docked at the in turn could enforce liability on petitioner based
Limay port eight meters away from the stone wall. on the latter’s obligation to Skyland. In other
Due to strong winds and large waves, the barge words, petitioner is being held liable by Skyland
repeatedly hit its hull on the wall, thus prompting and not by Acuario.
the barge patron to alert the tugboat captain of the
Thus, in the performance of its contractual
M/T Count to tow the barge farther out to sea.
obligation to Skyland, petitioner was required to
However, the tugboat failed to pull the barge to a
observe the due diligence of a good father of the
safer distance due to engine malfunction, thereby
family. This much was held in the old but still
causing the barge to sustain a hole in its hull.
relevant case of Baer Senior & Co.’s Successors v.
Fortunately, no part of the cargo was lost even if
La Compania Maritima21 where the Court
only half of it had been unloaded at that time.
explained that a tug and its owners must observe
On the other hand, petitioner and Skyland denied ordinary diligence in the performance of its
that the barge had been damaged. One of its obligation under a contract of towage. The
witnesses, Salvador D. Ocampo, claimed that he negligence of the obligor in the performance of
was involved in all aspects of the operation and the obligation renders him liable for damages for
that no accident of any sort was brought to his the resulting loss suffered by the obligee. Fault or
knowledge. He alleged that the barge patron and negligence of the obligor consists in his failure to
tug master made no mention of any maritime exercise due care and prudence in the
casualty during the clearing of the vessels at the performance of the obligation as the nature of the
Philippine Ports Authority in Limay, Bataan. The obligation so demands.22
barge was in good condition and was not damaged
In the case at bar, the exercise of ordinary
when it was turned over to Acuario on April 13,
prudence by petitioner means ensuring that its
tugboat is free of mechanical problems. While
The trial court gave credence to the testimonies of adverse weather has always been a real threat to
Acuario’s witnesses that the barge sustained maritime commerce, the least that petitioner could
damage while it was being chartered by Skyland. It have done was to ensure that the M/T Count or
held that the positive testimonies of Acuario’s any of its other tugboats would be able to secure
witnesses, coupled with documentary evidence the barge at all times during the engagement. This
detailing the nature and extent of the damage as is especially true when considered with the fact
well as the repairs done on the barge, should that Acuario’s barge was wholly dependent upon
petitioner’s tugboat for propulsion. The barge was
not equipped with any engine and needed a Mindanao Terminal and Brokerage Service v.
tugboat for maneuvering.23 Phoenix Assurance Co.

Needless to say, if petitioner only subjected the Degree of diligence required for stevedores
M/T Count to a more rigid check-up or
inspection, the engine malfunction could have FACTS: Del Monte Philippines, Inc. (Del Monte)
been discovered or avoided. The M/T Count was contracted petitioner Mindanao Terminal and
exclusively controlled by petitioner and the latter Brokerage Service, Inc. (Mindanao Terminal), a
had the duty to see to it that the tugboat was in stevedoring company, to load and stow a
good running condition. There is simply no basis shipment of 146,288 cartons of fresh green
for petitioner’s assertion that Skyland contractually Philippine bananas and 15,202 cartons of fresh
assumed the risk of any engine trouble that the pineapples belonging to Del Monte Fresh Produce
tugboat may encounter. Skyland merely procured International, Inc. (Del Monte Produce) into the
petitioner’s towing service but in no way assumed cargo hold of the vessel M/V Mistrau. The vessel
any such risk. was docked at the port of Davao City and the
goods were to be transported by it to the port of
That petitioner’s negligence was the proximate Inchon, Korea in favor of consignee Taegu
cause of the damage to the barge cannot be Industries, Inc. Del Monte Produce insured the
doubted. Had its tugboat been serviceable, the shipment under an "open cargo policy" with
barge could have been moved away from the private respondent Phoenix Assurance Company
stone wall with facility. It is too late in the day for of New York (Phoenix), a non-life insurance
petitioner to insist that the proximate cause of the company, and private respondent McGee & Co.
damage was the barge patron’s negligence in not Inc. (McGee), the underwriting manager/agent of
objecting to the position of the barge by the stone Phoenix.4
wall. Aside from the fact that the position of the
barge is quite understandable since off-loading Mindanao Terminal loaded and stowed the
operations were then still underway,24 the alleged cargoes aboard the M/V Mistrau. The vessel set
negligence of the barge patron is a matter that is sail from the port of Davao City and arrived at the
also being raised for the first time before this port of Inchon, Korea. It was then discovered
Court. upon discharge that some of the cargo was in bad
condition. The Marine Cargo Damage Surveyor of
Thus, the damage to the barge could have been Incok Loss and Average Adjuster of Korea,
avoided had it not been for the tugboat’s inability through its representative Byeong Yong Ahn
to tow it away from the stone wall. Considering (Byeong), surveyed the extent of the damage of
that a barge has no power of its own and is totally the shipment. In a survey report, it was stated that
defenseless against the ravages of the sea, it was 16,069 cartons of the banana shipment and 2,185
incumbent upon petitioner to see to it that it cartons of the pineapple shipment were so
could secure the barge by providing a seaworthy damaged that they no longer had commercial
tugboat. Petitioner’s failure to do so did not only value.
increase the risk that might have been reasonably
anticipated during the shipside operation but was Del Monte Produce filed a claim under the open
the proximate cause of the damage.25 Hence, as cargo policy for the damages to its shipment.
correctly found by the courts below, it should McGee’s Marine Claims Insurance Adjuster
ultimately be held liable therefor. evaluated the claim and recommended that
payment in the amount of $210,266.43 be made.
Stevedoring A check for the recommended amount was sent
to Del Monte Produce; the latter then issued a performance of an obligation then that which is
subrogation receipt6 to Phoenix and McGee. expected of a good father of a family or ordinary
diligence shall be required. Mindanao Terminal, a
Phoenix and McGee instituted an action for stevedoring company which was charged with the
damages7 against Mindanao Terminal in the loading and stowing the cargoes of Del Monte
Regional Trial Court (RTC) of Davao City, Branch Produce aboard M/V Mistrau, had acted merely as
12. After trial, the RTC,8 in a decision dated 20 a labor provider in the case at bar. There is no
October 1999, held that the only participation of specific provision of law that imposes a higher
Mindanao Terminal was to load the cargoes on degree of diligence than ordinary diligence for a
board the M/V Mistrau under the direction and stevedoring company or one who is charged only
supervision of the ship’s officers, who would not with the loading and stowing of cargoes. It was
have accepted the cargoes on board the vessel and neither alleged nor proven by Phoenix and McGee
signed the foreman’s report unless they were that Mindanao Terminal was bound by contractual
properly arranged and tightly secured to withstand stipulation to observe a higher degree of diligence
voyage across the open seas. Accordingly, than that required of a good father of a family. We
Mindanao Terminal cannot be held liable for therefore conclude that following Article 1173,
whatever happened to the cargoes after it had Mindanao Terminal was required to observe
loaded and stowed them. Moreover, citing the ordinary diligence only in loading and stowing the
survey report, it was found by the RTC that the cargoes of Del Monte Produce aboard M/V
cargoes were damaged on account of a typhoon Mistrau.
which M/V Mistrau had encountered during the
voyage. The relationship therefore between the consignee
and the arrastre operator must be examined. This
The appellate court reversed and set aside10 the relationship is much akin to that existing between
decision of the RTC in its 29 October 2003 the consignee or owner of shipped goods and the
decision. The same court ordered Mindanao common carrier, or that between a depositor and
Terminal to pay Phoenix and McGee "the total a warehouseman[22 ]. In the performance of its
amount of $210,265.45 plus legal interest from the obligations, an arrastre operator should observe
filing of the complaint until fully paid and the same degree of diligence as that required of a
attorney’s fees of 20% of the claim."11 It common carrier and a warehouseman as
sustained Phoenix’s and McGee’s argument that enunciated under Article 1733 of the Civil Code
the damage in the cargoes was the result of and Section 3(b) of the Warehouse Receipts Law,
improper stowage by Mindanao Terminal. It respectively. Being the custodian of the goods
imposed on Mindanao Terminal, as the stevedore discharged from a vessel, an arrastre operator's
of the cargo, the duty to exercise extraordinary duty is to take good care of the goods and to turn
diligence in loading and stowing the cargoes. them over to the party entitled to their possession.
(Emphasis supplied)23
ISSUE: Whether petitioner’s required
diligence as held by CA is extraordinary There is a distinction between an arrastre and a
diligence stevedore.24 Arrastre, a Spanish word which
refers to hauling of cargo, comprehends the
RULING: NO, it only need reasonable
handling of cargo on the wharf or between the
diligence in the performance of its duty
establishment of the consignee or shipper and the
Article 1173 of the Civil Code is very clear that if ship's tackle. The responsibility of the arrastre
the law or contract does not state the degree of operator lasts until the delivery of the cargo to the
diligence which is to be observed in the consignee. The service is usually performed by
longshoremen. On the other hand, stevedoring stowing. A foreman’s report, as proof of work
refers to the handling of the cargo in the holds of done on board the vessel, was prepared by the
the vessel or between the ship's tackle and the checkers of Mindanao Terminal and concurred in
holds of the vessel. The responsibility of the by the Chief Officer of M/V Mistrau after they
stevedore ends upon the loading and stowing of were satisfied that the cargoes were properly
the cargo in the vessel.1avvphi1 loaded.33

It is not disputed that Mindanao Terminal was Phoenix and McGee relied heavily on the
performing purely stevedoring function while the deposition of Byeong Yong Ahn34 and on the
private respondent in the Summa case was survey report35 of the damage to the cargoes.
performing arrastre function. In the present case, Byeong, whose testimony was refreshed by the
Mindanao Terminal, as a stevedore, was only survey report,36 found that the cause of the
charged with the loading and stowing of the damage was improper stowage37 due to the
cargoes from the pier to the ship’s cargo hold; it manner the cargoes were arranged such that there
was never the custodian of the shipment of Del were no spaces between cartons, the use of
Monte Produce. A stevedore is not a common cardboards as support system, and the use of
carrier for it does not transport goods or small rope to tie the cartons together but not by
passengers; it is not akin to a warehouseman for it the negligent conduct of Mindanao Terminal in
does not store goods for profit. The loading and loading and stowing the cargoes. As admitted by
stowing of cargoes would not have a far reaching Phoenix and McGee in their Comment38 before
public ramification as that of a common carrier us, the latter is merely a stevedoring company
and a warehouseman; the public is adequately which was tasked by Del Monte to load and stow
protected by our laws on contract and on quasi- the shipments of fresh banana and pineapple of
delict. The public policy considerations in legally Del Monte Produce aboard the M/V Mistrau.
imposing upon a common carrier or a How and where it should load and stow a
warehouseman a higher degree of diligence is not shipment in a vessel is wholly dependent on the
present in a stevedoring outfit which mainly shipper and the officers of the vessel. In other
provides labor in loading and stowing of cargoes words, the work of the stevedore was under the
for its clients. supervision of the shipper and officers of the
vessel. Even the materials used for stowage, such
It was further established that Mindanao Terminal as ropes, pallets, and cardboards, are provided for
loaded and stowed the cargoes of Del Monte by the vessel. Even the survey report found that it
Produce aboard the M/V Mistrau in accordance was because of the boisterous stormy weather due
with the stowage plan, a guide for the area to the typhoon Seth, as encountered by M/V
assignments of the goods in the vessel’s hold, Mistrau during its voyage, which caused the
prepared by Del Monte Produce and the officers shipments in the cargo hold to collapse, shift and
of M/V Mistrau.31 The loading and stowing was bruise in extensive extent.39 Even the deposition
done under the direction and supervision of the of Byeong was not supported by the conclusion in
ship officers. The vessel’s officer would order the the survey report that:
closing of the hatches only if the loading was done
correctly after a final inspection.32 The said ship
officers would not have accepted the cargoes on
board the vessel if they were not properly
arranged and tightly secured to withstand the
voyage in open seas. They would order the
stevedore to rectify any error in its loading and