CHAPTER 4 DEFENSES OF COMMON

CARRIER
ABSENCE OF CAUSATION AS DEFENSE

The carrier bears the burden of satisfying the

court that he has duly discharged the duty of
prudence required in case of passenger’s death,
or injury by the carrier, or damage to or loss of
the cargoes.
The carrier may also resort to the defenses
provided for under the NCC in order to escape
liability but it has the burden of alleging and
proving the facts that support the applicability
of such defenses.
What the law means is that absence of causal
connection is only a matter of defense. The
common carrier may prove by way of defense
that the loss or damage cannot be traced to any
of the circumstances mentioned in Art. 1734 of
NCC. The carrier can also prove that proximate
cause of the loss is not any act or omission of
the said carrier because he exercised
extraordinary diligence.
DEFENSES IN THE CARRIAGE OF GOODS

KINDS OF DEFENSES
May either totally bar recovery from the carrier
or may mitigate and/or limit its liability.
Art. 1734 – Common carriers are responsible
for the loss, destruction, or deterioration of the
goods, unless the same is due to any of the
following causes only:

Examples: (1) Flood, storm, earthquake, lightning, or

other natural disaster or calamity;
Fortuitous Events = totally bar recovery

Doctrine of Contributory Negligence and the

Avoidable Consequence Rule = mitigate
(2) Act of the public enemy in war, whether
liability
international or civil;

There are legal defenses that are expressly

(3) Act or omission of the shipper or owner of
recognized and prohibited under the NCC. the goods;

Example: A provision in a contract that (4) The character of the goods or defects in the
provides a common carrier need not exercise
packing or in the containers;
any degree of diligence is void and cannot be
invoked as a defense.
(5) Order or act of competent public authority.

PROXIMATE CAUSE
Art. 1742– Even if the loss, destruction, or
deterioration of the goods should be caused by
the character of the goods, or the faulty nature
The common carrier is presumed negligent the
of the packing or of the containers, the common
moment it fails to perform its duty. It is by
carrier must exercise due diligence to forestall
reason of such presumption that it has been
or lessen the loss.
observed that the doctrine of proximate cause
is inapplicable to a contract of carriage. The
injured passenger or owner of goods need not
prove causation to establish his case. Th Art. 1743– If through the order of public
presumption arises upon the happening of the authority the goods are seized or destroyed, the
accident. common carrier is not responsible, provided
said public authority had power to issue the
order.
EXCLUSIVITY OF DEFENSES. No other
defense may be raised by the common carrier in
the carriage of goods. The list is exclusive.
DEFENSES IN THE CARRIAGE OF
PASSENGERS
The carrier’s defense is exercise of
extraordinary or utmost diligence.
FORTUITOUS EVENTS
To be valid, defense must be established to be
the proximate cause of the loss.
REQUISITES OF FORTUITIOUS EVENTS.
The following must be present before the
carrier can properly invoke fortuitous events as
a defense:
(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
that 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.
Article 1174 of NCC provides that “except in
cases expressly specified by the law, or when it
is otherwise declared by stipulation, or when
the nature of the obligation requires the
assumption of risk, no person shall be
responsible for those events which, could not be
foreseen, or which, though foreseen, were
inevitable.” Fortuitous event is not limited to
natural calamities, it may involve events that
involve human intervention.
EFFECT OF CARRIER’S PARTICIPATION.
Carrier must be free from any participation in
causing damage or injury and the carrier will
be excused from liability if the natural disaster
is the proximate and only cause of the loss.
Art. 1739– In order that the common carrier
may be exempted from responsibility, the
natural disaster must have been the proximate
and only cause of the loss. However, the
common carrier must exercise due diligence to
prevent or minimize loss before, during and
after the occurrence of flood, storm or other
natural disaster in order that the common
carrier may be exempted from liability for the
loss, destruction, or deterioration of the goods.
The same duty is incumbent upon the common
carrier in case of an act of the public enemy
referred to in article 1734, No. 2.
RATIONALE. The act of God which excuses the
carrier must not only be the proximate cause of
the loss, but the better opinion is that it must
be the sole cause. And where the loss is caused
by the “act of God,” if the negligence of the
carrier mingles with it as an active and
cooperative cause, he is still responsible.
Since an accident is the basis for exemption
from responsibility, it must be proven by him
who will benefit thereby and who objects to the
requirement that he fulfills his obligations.
Proof of accident mus include these points: the
occurrence of the event, the bearing it has upon
breach of the obligation, and the concurrence of
unexpectedness and inevitably. Since proof of
the accident is related to proof of the blame, it
is evident that the obligor must also prove that
he is not to blame for breach of the contract.
In order to relieve the obligor from his
obligation, it must be remembered that the
occurrence of the event does not suffice, but
that the impossibility of fulfilling the obligation
must be the direct consequences of the
accident, so that when it can be fulfilled it will
subsist, even if only in part, and therefore, in
order to see whether or not the accident
produces this result the nature of the
obligation must be considered, and according to
whether it be specified or general, it will or will
not be extinguished.
FIRE. Force majeure generally applies to
natural accident, hence, fire is not considered a
natural disaster or calamity.
Eastern Shipping Lines v. IAC It was observed
that smoke came from these hatches but it was
only after 24 hours that they started opening
the hatches and fighting the fire. The court
observed that the carrier failed to satisfactorily
show that extraordinary vigilance and care had
been made by the crew to prevent the
occurrence of the fire.
Edgar Cakaliong Shipping Lines, Inc. V. UCPB
The petitioner’s vessel M/V Tandag, sank due
to fire that resulted from a crack and dripped to
the heating exhaust manifold, causing the ship
to burst into flames. The sinking of the vessel
was not considered due to fortuitous event.
Having originated from an unchecked crack in
the fuel oil service tank, the fire could not have
been caused by force majeure.
STORM. PAGASA described a storm as having
a wind force of 48 to 55 knots or 55 to 63 miles
per hour. The presence strong wind does not by
itself justify the conclusion that there is a
storm. For instance, strong monsoon winds are
not a storm within the contemplation of Article
1734(1) of the NCC. Hence, in one case, the
carrier was not made liable because the
proximate cause and only cause of the loss was
unforeseeable strong winds and enormous
waves.
HIJACKING. It does not fall among the five
categories of exempting causes.
De Guzman v. CA A common carrier is held
responsible and will not be allowed to divest or
to diminish such responsibility even for acts of
strangers like thieves or robbers, except where
such thieves or robbers in fact acted “with
grave or irresistible threat, violence or force.”
We believe and so hold that the limits of the
duty of extraordinary diligence in the vigilance
over the goods carrier are reached where the
goods are lost as a result of a robbery which
attended by “grave or irresistible threat,
violence or force.”
Bascos v. CA A Hijacking, not being included in
the provision of Art, 1734, must be dealt with
under the provisions of Art. 1735 and thus, the
common carrier is presumed to have been at
fault or negligent. To exculpate the carrier
from liability arising from hijacking, he must
prove that the robbers or the hijackers acted
with grave or irresistible threat, violence or
force.
MECHANICAL DEFECTS. Damage or injury
that can be traced to mechanical defects is not
a damage or injury that is caused by fortuitous
event. The prevailing rule in this jurisdiction is
that a carrier is liable to its passengers for
damages caused by mechanical defects of the
conveyance.
Son v. Cebu Autobus Company A common
carrier liable for damages to a passenger for
injuries caused by an accident due to the
breakage of faulty drag-link spring.
Necesito v. Paras It was established that the
accident was caused by the fracture of vehicle’s
right steering knuckle, which was defective in
that its center or core was not compact but
“bubbled and cellulous.” Similarly, there is no
fortuitous event of the breaks of the vehicle will
not work because defective breaks are curable
and preventable.
One of the reasons why the carrier is made
liable despite the presence of mechanical defect
is the absence of privity between the passenger
and the manufacturer. The passenger cannot
directly sue the manufacturer because of such
absence of privity does not prevent the
passenger from suing the manufacturer
directly for tort. The manufacturer can be sued
directly for negligence. In fact, the
manufacturer is now liable based on his strict
liability under Article 97 of the Consumer Act
of the Philippines.
TIRE BLOWOUTS. The rule on mechanical
defects applies to tire blowouts.
Juntilla v. Fontanar The Supreme Court did
not consider the explosion of the tire of the
jeepney as a fortuitous event although the tires
were allegedly in good condition; no evidence
was presented to show that the accident was
due to adverse road conditions. The explosion
could have been caused by too much air
pressure injected into the tires coupled by the
fact that the jeepney was overloaded and
speeding at the time of the accident.
OTHER INVALID DEFENSES. The common
carrier cannot likewise invoke explosion, the
presence of worms and rats, water damage, and
barratry.
a.Explosion. Damage to cargo from explosion of
another cargo is not ordinarily attributable to
peril of the sea or accidents of navigation
particularly where it occurs after the vessel has
ended its voyage and is finally moored to
unload.
b.Worms and Rats. Whenever the ship is
damaged by worms resulting in damage to the
cargo, the carrier cannot cited the same as an
excuse. The same is true with respect to
damage of the cargo by rats whether the cargo
was directly damaged by the rats or water let
in through holes gnawed by rats in the ships or
her fixtures.
c.Water Damage. Damage by seawater is not
valid excuse where the water gains entrance
through a port that been left open or
insufficiently fastened on sailing.
d.Barratry. The shipowner cannot escape
liability to third persons if the cause of damage
is barratry. It is an act committed by the
master or crew of the ship for some unlawful or
fraudulent purpose, contrary to their duty to
the owner. Intentional fraud or breach of trust
or willful violation of law is necessary to
constitute barratry. It includes theft by the
purser of a specie shipped on board and
fraudulently running the ship ashore.
PUBLIC ENEMY
An act of a public enemy is a defense that is
available to the carrier not only under the NCC
but also under the COGSA.
The term public enemy in its general
acceptation pre-supposes 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, though
not necessarily with that to which the owner of
the goods owes allegiance.
They are considered the enemies of all civilized
nations and indeed of human race, and
consequently their depredations on a common
carrier will excuse him from liability.
The acts of rebels against a government and
acts of pirates on high seas although not acts of
a public enemy are likewise included in the
exception.
In order that the common carrier may be
exempted from responsibility, the act of the
public enemy must have been the proximate
and only cause of the loss.
NATURE OF GOODS AND IMPROPER
PACKING. The character of the goods or
defects in the packing or in the containers is a
defense that is available to common carriers.
Similarly, the COGSA provides that the carrier
shall not be liable for; (1) wastage in bulk or
weight or any other loss or damage arising
from inherent defect, quality or vice of goods;
(2) insufficiency of packing; (3) insufficiency or
inadequacy of the marks; or (4) latent defects
not discoverable by due diligence.
Art. 1742– Even if the loss, destruction, or
deterioration of the goods should be caused by
the character of the goods, or the faulty nature
of the packing or of the containers, the common
carrier must exercise due diligence to forestall
or lessen the loss.
The carrier is not responsible if the loss occurs
because of the inherent nature of the shipment.
Philippine Charter Insurance Corporation v.
Owner of the Vessel M/V National Honor It
was established that the breakage and collapse
of the crate was solely due to the inherent
defect and weakness of the materials used in
the fabrication of the crate. Hence, the carrier
was not liable. Since the crates were sealed, the
carrier could not have known that tha crate
was defective.
Southern Lines, Inc. v. CA It There was a
shortage when the sacks of rice were delivered
to the consignee although it was alleged that
the shortage in the shipment was due to
shrinkage, leakage or spillage of the rice on
account of the bad condition of the sacks at the
time it received the same. The petitioner was
still made liable because it was aware of the
condition of the sacks when it received the
goods.
Virgines Calvo v. UPCP Petitioners accepted
the cargo without exception despite the
apparent defects in some of the container vans.
Hence, for failure to prove that she exercised
extraordinary diligence in the carriage of goods
or that she is exempt from liability, the
presumption of negligence as provided under
Art. 1735 holds.
Belgian Overseas Chartering & Shipping N.V
v. Philippine First Insurance Co., Petitioners
tried to escape liability by contending they are
exempt under Art. 1734(4). They cited the
notation of metal envelopes rust sustained and
slightly dented printed on the Bill of Lading as
evidence that the character of the goods or
defect in the packaging or the containers was
the proximate cause of the damage. The
Supreme Court said that the exception refers to
cases when goods are lost or damaged while in
transit as a result of the natural decay of
perishable goods or the fermentation or
evaporation of substances liable therefore, the
necessary and natural wear of goods in
transport, defects in packages in which they
are shipped, or the natural propensities of
animals.
ORDER OF PUBLIC AUTHORITY. It may be
used only if the public authority who issued the
order duly authorized to issue the order. The
defense is not available if: (1) the public
authority has no authority to issue the subject
order; or (2) if the public authority exceeded his
authority.
Art. 1743– If through the order of public
authority the goods are seized or destroyed, the
common carrier is not responsible, provided
said public authority had power to issue the
order.
Ganzon v. CA The petitioner carrier was not
excused from liability because the Supreme
Court did not consider the order of an acting
mayor as a valid order of a public authority.
DEFENSES IN CARRIAGE OF
PASSENGERS. The primary defense of the
carrier in transporting passengers is exercise of
extraordinary diligence. Even if there is a
fortuitous event, proof of extraordinary
diligence must be presented.
ACTS OF EMPLOYEES. The carrier is liable
for the acts of its employees. Unlike in
quasi-delict, the carrier cannot escape liability
by claiming that he exercised due diligence in
the selection and supervision of the employee.
Art. 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.
This liability of the common carriers does not
cease upon proof that they exercised all the
diligence of a good father of a family in the
selection and supervision of their employees.
PASSENGER HAS NO DUTY TO INQUIRE. It
is no defense that the employee acted beyond
the scope of his authority because the riding
public is not expected to inquire from time to
time before they board the carrier whether or
not the driver is acting within the scope of his due diligence to prevent or stop the act or
authority and observing the existing rules and omission.
regulations of him by management.

Art. 1763 A common carrier is responsible for

RATIONALE. There are three cogent reasons:
(1) The special undertaking of the carrier
requires that it furnish its passenger that full
measure of protection afforded by the exercise
of the high degree of care prescribed by the law,
inter alia from violence and insults at the
hands of strangers and other passengers, but
above all, from the acts of the carrier’s own
servants charged with the passenger’s safety;
(2) Said liability of the carrier for the servant’s
violation of duty to passengers, is the result of
the former’s confiding in the servant’s hands
the performance of his contract to safely
transport the passenger, delegating therewith
the duty of protecting the passenger with the
utmost care prescribed by law; and
(3) As between the carrier and the passenger,
the former must bear the risk of wrongful acts
or negligence of the carrier’s employees against
passengers, since it, and not the passengers,
has the power to select and remove them.
injuries suffered by a passenger on account of
the willful acts or negligence of other
passengers or of 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.
The defense that the death or injury was
caused by third person is not available if the
carrier’s driver even allowed another who is not
an employee or a regular driver to take over the
task of driving the vehicle.
Bacarro v. Castano The negligence of the
carrier need not be the sole cause of damage or
injury to the passenger or the goods. The
carrier would still be liable even if the
contractual breach concurs with the negligent
act or omission of another person.

ACTS OF THE SHIPPER OR THE

THEFT BY EMPLOYEES. Willful acts of PASSENGER. If the act or omission of the
employees include theft. Under the Code of shipper or owner of the goods or the passenger
Commerce, it provides that the captain shall be is the proximate and only cause of the damage,
civilly liable to the naviero and the latter to the then the common carrier is not liable.
third persons for all the thefts committed by
the crew, reserving the right of action against
the guilty party. The Civil Code does not
CONTRIBUTORY NEGLIGENCE OF THE
change the rule and the same is in fact further
SHIPPER. It is conduct on the part of the
reinforced by the duty to exercise extraordinary
injured party, contributing as a legal cause to
diligence.
the harm which falls below the standard to
which he is required to conform for his own
protection.
Yu Con v. Ipil The defendant Lauron, as owner
of the craft of which Ipil was the master,
through the fault and negligence of the latter
Contributory negligence on the part of the
and of the supercargo Justo Solamo, there
shipper is not a defense that will excuse the
occured the loss, theft and robbery shall be held
carrier from liability, it will only mitigate the
civilly liable to the plaintiff, who executed with
liability.
said defendant the contract for the
transportation of the merchandise and money
between the port of Cebu and the town of
Catmon. Art. 1741 If the shipper or owner merely
contributed to the loss, destruction or
deterioration of the goods, the proximate cause
thereof being the negligence of the common
ACTS OF OTHER PASSENGERS AND
carrier, the latter shall be liable in damages,
THIRD PERSONS. The availability of such
which however, shall be equitably reduced.
defense is subject to the exercise of a carrier of

CONTRIBUTORY NEGLIGENCE OF THE
PASSENGER. Passengers are likewise bound
to observe due diligence to avoid injury.
Art. 1761 The passenger must observe the
diligence of a good father of a family to avoid
injury to himself.
Art. 1762 The contributory negligence of the
passenger does not bar recovery of damages for
his death or injuries, if the proximate cause
thereof is the negligence of the common carrier,
but the amount of damages shall be equitably
reduced.
CAUSATION. The carrier may be able to
overcome the presumption of negligence and
may be able to prove that it exercised
extraordinary diligence in handling the goods
or in transporting the passenger. It may able to
prove that the only cause of the loss of the
goods is any of the following acts of the shipper:
(1) failure of the shipper to disclose the nature
of the goods; (2) improper marking or direction
as to destination or (3) improper loading when
he assumes such responsibility.
Nicholas Y. Cervantes v. CA The Supreme
Court ruled that the petitioner cannot sure for
contractual breach when he was not allowed to
board. The conclusion was reached despite the
fact that petitioner booked the same with the
airline’s agent. The court explained that they
were booked with agents who were authorized
to change the agreement.
AVOIDABLE CONSEQUENCES. Even if the
carrier is responsible for the loss or injury, the
passenger is also required to lessen the damage
or injury under what is known as the doctrine
of avoidable consequences.
ASSUMPTION OF RISK.
Japan Airlines v. CA The rule that passengers
must take such risks incident to the mode of
travel. Carriers are not insurer of the lives of
their passengers. Thus, in air travel, adverse
weather conditions or extreme climactic
changes are some of the perils involved in air
travel, the consequences of which the
passenger must assume or expect.
Calalas v. CA The Supreme Court rejected the
argument of the carrier that the student’s
taking an “extension seat” amounted to an
implied assumption of risk. The same cannot be
construed as assumption of risk and suck
position is akin to arguing that the injuries to
the many victims of the tragedies in our seas
should not be compensated merely because
those passengers assumed a greater risk of
drowning by boarding an overloaded ferry. The
court pointed out that the carrier failed to
exercise extraordinary diligence.
DOCTRINE OF THE LAST CLEAR CHANCE
When both parties involved in the accident
where both negligent, the negligence of the
party will not be considered the proximate
cause if the other party has the last clear
chance of avoiding the injury. If the plaintiff
has the last clear chance of avoiding the injury,
the defendant may no longer be held liable. The
negligence of the plaintiff which is not
contributory negligence will be considered as
an efficient intervening clause.
Philippine Rabbit Bus Lines, Inc v. IPC The
principle of “last clear chance” applies in a suit
between the owners and drivers of colliding
vehicles. “It does not arise where the passenger
demands responsibility from the carrier to
enforce its contractual obligation. For it would
be inequitable to exempt the negligent driver of
the jeepney and its owners on the ground that
the other driver was likewise guilty of
negligence.”
For instance, if a truck was parked askew in
violation of traffic rules and the truck was hit
by an over-speeding passenger bus, the
operator cannot invoke the doctrine.
A negligent defendant is held liable even to a
negligent plaintiff, or even to a plaintiff who
has been grossly negligent in placing himself in
peril, 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.