FIRST DIVISION

[G.R. No. L-42926. September 13, 1985.]

PEDRO VASQUEZ, SOLEDAD ORTEGA, CLETO B. BAGAIPO, AGUSTINA

VIRTUDES, ROMEO VASQUEZ and MAXIMINA CAINAY , petitioners, vs. THE
COURT OF APPEALS and FILIPINAS PIONEER LINES, INC. , respondents.

Emilio D. Castellanes for petitioners.

Apolinario A. Abantao for private respondents.

DECISION

MELENCIO-HERRERA , J : p

This litigation involves a claim for damages for the loss at sea of petitioners'
respective children after the shipwreck of MV Pioneer Cebu due to typhoon "Klaring" in
May of 1966. LLjur

The factual antecedents, as summarized by the trial Court and adopted by

respondent Court, and which we find supported by the record, read as follows:
"When the interisland vessel MV 'Pioneer Cebu' left the Port of Manila in
the early morning of May 15, 1966 bound for Cebu, it had on board the spouses
Alfonso Vasquez and Filipinas Bagaipo and a four-year old boy, Mario Marlon
Vasquez, among her passengers. The MV 'Pioneer Cebu' encountered typhoon
'Klaring' and struck a reef on the southern part of Malapascua Island, located
somewhere north of the island of Cebu and subsequently sunk. The
aforementioned passengers were unheard from since then.

Plaintiffs Pedro Vasquez and Soledad Ortega are the parents of Alfonso
Vasquez; plaintiffs Cleto Bagaipo and Agustina Virtudes are the parents of Filipinas
Bagaipo; and plaintiffs Romeo Vasquez and Maximina Cainay are the parents of the
child, Mario Marlon Vasquez. They seek the recovery of damages due to the loss of
Alfonso Vasquez, Filipinas Bagaipo and Mario Marlon Vasquez during said voyage.
At the pre-trial, the defendant admitted its contract of carriage with Alfonso
Vasquez, Filipinas Bagaipo and Mario Marlon Vasquez, and the fact of the sinking of the
MV 'Pioneer Cebu'. The issues of the case were limited to the defenses alleged by the
defendant that the sinking of the vessel was caused by force majeure, and that the
defendant's liability had been extinguished by the total loss of the vessel.
The evidence on record as to the circumstances of the last voyage of the MV
'Pioneer Cebu' came mainly, if not exclusively, from the defendant. The MV 'Pioneer
Cebu' was owned and operated by the defendant and used in the transportation of
goods and passengers in the interisland shipping. Scheduled to leave the Port of Manila
at 9:00 p.m. on May 14, 1966, it actually left port at 5:00 a.m. the following day, May 15,
1966. It had a passenger capacity of three hundred twenty-two (322) including the
crew. It undertook the said voyage on a special permit issued by the Collector of
Customs inasmuch as, upon inspection, it was found to be without an emergency
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 electrical power system. The special permit authorized the vessel to carry only two
hundred sixty (260) passengers due to the said de ciency and for lack of safety
devices for 322 passengers (Exh 2). A headcount was made of the passengers on
board, resulting on the tallying of 168 adults and 20 minors, although the passengers
manifest only listed 106 passengers. It has been admitted, however, that the headcount
is not reliable inasmuch as it was only done by one man on board the vessel.
When the vessel left Manila, its o cers were already aware of the typhoon
Klaring building up somewhere in Mindanao. There being no typhoon signals on the
route from Manila to Cebu, and the vessel having been cleared by the Customs
authorities, the MV 'Pioneer Cebu' left on its voyage to Cebu despite the typhoon. When
it reached Romblon Island, it was decided not to seek shelter thereat, inasmuch as the
weather condition was Still good. After passing Romblon and while near Jintotolo
island, the barometer still indicated the existence of good weather condition continued
until the vessel approached Tanguingui island. Upon passing the latter island, however,
the weather suddenly changed and heavy rains fell. Fearing that due to zero visibility, the
vessel might hit Chocolate island group, the captain ordered a reversal of the course so
that the vessel could 'weather out' the typhoon by facing the winds and the waves in the
open. Unfortunately, at about noontime on May 16, 1966, the vessel struck a reef near
Malapascua island, sustained leaks and eventually sunk, bringing with her Captain Floro
Yap who was in command of the vessel."
Due to the loss of their children, petitioners sued for damages before the Court
of First Instance of Manila (Civil Case No. 67139). Respondent defended on the plea of
force majeure, and the extinction of its liability by the actual total loss of the vessel.
After proper proceedings, the trial Court awarded damages, thus:
"WHEREFORE, judgment is hereby rendered ordering the defendant to pay:

(a) Plaintiffs Pedro Vasquez and Soledad Ortega the sums of P15,000.00 for
the loss of earning capacity of the deceased Alfonso Vasquez, P2,100.00 for support,
and P10,000.00 for moral damages;
(b) Plaintiffs Cleto B. Bagaipo and Agustina Virtudes the sum of P17,000.00
for loss of earning capacity of deceased Filipinas Bagaipo, and P10,000.00 for moral
damages; and
(c) Plaintiffs Romeo Vasquez and Maximina Cainay the sum of P10,000.00 by
way of moral damages by reason of the death of Mario Marlon Vasquez.
On appeal, respondent Court reversed the aforementioned judgment and
absolved private respondent from any and all liability.
Hence, this Petition for Review on Certiorari, the basic issue being the liability for
damages of private respondent for the presumptive death of petitioners' children.
The trial Court found the defense of caso fortuito untenable due to various
decisive factors, thus:
". . . It is an admitted fact that even before the vessel left on its last voyage,
its o cers and crew were already aware of the typhoon brewing somewhere in
the same general direction to which the vessel was going. The crew of the vessel
took a calculated risk when it proceeded despite the typhoon advisory. This is
quite evident from the fact that the o cers of the vessel had to conduct
conferences amongst themselves to decide whether or not to proceed. The crew
assumed a greater risk when, instead of seeking shelter in Romblon and other
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 islands the vessel passed enroute, they decided to take a change on the expected
continuation of the good weather the vessel was encountering, and the possibility
that the typhoon would veer to some other directions. The eagerness of the crew
of the vessel to proceed on its voyage and to arrive at its destination is readily
understandable. It is undeniably lamentable, however, that they did so at the risk
of the lives of the passengers on board."

Contrariwise, respondent Appellate Court believed that the calamity was caused
solely and proximately by fortuitous event which not even extraordinary diligence of the
highest degree could have guarded against; and that there was no negligence on the
part of the common carrier in the discharge of its duties.
Upon the evidence and the applicable law, we sustain the trial Court. "To
constitute a caso fortuito that would exempt a person from responsibility, it is
necessary that (1) the event must be independent of the human will; (2) the occurrence
must render it impossible for the debtor to ful ll the obligation in a normal manner; and
that (3) the obligor must be free of participation in, or aggravation of, the injury to the
creditor." 1 In the language of the law, the event must have been impossible to foresee,
or if it could be foreseen, must have been impossible to avoid. 2 There must be an
entire exclusion of human agency from the cause of injury or loss. 3
Turning to this case, before they sailed from the port of Manila, the o cers and
crew were aware of typhoon "Klaring" that was reported building up at 260 kms. east of
Surigao. In fact, they had lashed all the cargo in the hold before sailing in anticipation of
strong winds and rough waters. 4 They proceeded on their way, as did other vessels
that day. Upon reaching Romblon, they received the weather report that the typhoon
was 154 kms. east southeast of Tacloban and was moving west northwest. 5 Since
they were still not within the radius of the typhoon and the weather was clear, they
deliberated and decided to proceed with the course. At Jintotolo Island, the typhoon
was already reported to be reaching the mainland of Samar. 6 They still decided to
proceed noting that the weather was still "good" although, according to the Chief
Forecaster of the Weather Bureau, they were already within the typhoon zone. 7 At
Tanguingui Island, about 2:00 A.M. of May 16, 1966, the typhoon was in an area quite
close to Catbalogan, placing Tanguingui also within the typhoon zone. Despite
knowledge of that fact, they again decided to proceed relying on the forecast that the
typhoon would weaken upon crossing the mainland of Samar. 8 After about half an hour
of navigation towards Chocolate Island, there was a sudden fall of the barometer
accompanied by heavy downpour, big waves, and zero visibility. The Captain of the
vessel decided to reverse course and face the waves in the open sea but because the
visibility did not improve they were in total darkness and, as a consequence, the vessel
ran aground a reef and sank on May 16, 1966 around 12:45 P.M. near Malapascua
Island somewhere north of the island of Cebu. Cdpr

Under the circumstances, while, indeed, the typhoon was an inevitable

occurrence, yet, having been kept posted on the course of the typhoon by weather
bulletins at intervals of six hours, the captain and crew were well aware of the risk they
were taking as they hopped from island to island from Romblon up to Tanguingui. They
held frequent conferences, and oblivious of the utmost diligence required of very
cautious persons, 9 they decided to take a calculated risk. In so doing, they failed to
observe that extraordinary diligence required of them explicitly by law for the safety of
the passengers transported by them with due regard for all circumstances 1 0 and
unnecessarily exposed the vessel and passengers to the tragic mishap. They failed to
overcome that presumption of fault or negligence that arises in cases of death or
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 injuries to passengers. 1 1
While the Board of Marine Inquiry, which investigated the disaster, exonerated the
captain from any negligence, it was because it had considered the question of
negligence as "moot and academic," the captain having "lived up to the true tradition of
the profession." While we are bound by the Board's factual ndings, we disagree with
its conclusion since it obviously had not taken into account the legal responsibility of a
common carrier towards the safety of the passengers involved.
With respect to private respondent's submission that the total loss of the vessel
extinguished its liability pursuant to Article 587 of the Code of Commerce 1 2 as
construed in Yangco vs. Laserna, 73 Phil. 330 [1941], su ce it to state that even in the
cited case, it was held that the liability of a shipowner is limited to the value of the
vessel or to the insurance thereon. Despite the total loss of the vessel therefore, its
insurance answers for the damages that a shipowner or agent may be held liable for by
reason of the death of its passengers. LLpr

WHEREFORE, the appealed judgment is hereby REVERSED and the judgment of

the then Court of First Instance of Manila, Branch V, in Civil Case No. 67139, is hereby
reinstated. No costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ.,
concur.

Footnotes

1. Lasam vs. Smith, 45 Phil. 657, 661 [1924]; Austria vs. Court of Appeals, 39 SCRA 527 [1971].
2. Art. 1174, Civil Code; Lasam vs. Smith 45 Phil. 657 [1924].
3. Tolentino, Commentaries on the Civil Code, Vol. V, p. 252.

4. T.s.n., August 8, 1967, p. 22.

5. Domestic Bulletin No. 16 of the Weather Bureau.

6. Domestic Bulletin No. 17.

7. T.s.n., December 15, 1967, p. 21.

8. Domestic Bulletin No. 18.

9. Arts. 1755, 1756, Civil Code.
10. Art. 1733, ibid.

11. 1756, ibid.

12. "Art. 567. The ship agent shall also be civilly liable for the indemnities in favor of third
persons which may arise from the conduct of the captain the vigilance over the goods
which the vessel carried, but he may exempt himself therefrom by abandoning the vessel
with all her equipments and the freight he may have earned during the voyage."

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