Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-47822 December 22, 1988
PEDRO DE GUZMAN, petitioner,
vs.
COURT OF APPEALS and ERNESTO CENDANA, respondents.
Vicente D. Millora for petitioner.
Jacinto Callanta for private respondent.

FELICIANO, J.:
Respondent Ernesto Cendana, a junk dealer, was engaged in buying up used bottles and scrap metal in Pangasinan. Upon gathering sufficient quantities of such
scrap material, respondent would bring such material to Manila for resale. He utilized two (2) six-wheeler trucks which he owned for hauling the material to Manila.
On the return trip to Pangasinan, respondent would load his vehicles with cargo which various merchants wanted delivered to differing establishments in Pangasinan.
For that service, respondent charged freight rates which were commonly lower than regular commercial rates.
Sometime in November 1970, petitioner Pedro de Guzman a merchant and authorized dealer of General Milk
Company (Philippines), Inc. in Urdaneta, Pangasinan, contracted with respondent for the hauling of 750 cartons of
Liberty filled milk from a warehouse of General Milk in Makati, Rizal, to petitioner's establishment in Urdaneta on or
before 4 December 1970. Accordingly, on 1 December 1970, respondent loaded in Makati the merchandise on to his
trucks: 150 cartons were loaded on a truck driven by respondent himself, while 600 cartons were placed on board the
other truck which was driven by Manuel Estrada, respondent's driver and employee.
Only 150 boxes of Liberty filled milk were delivered to petitioner. The other 600 boxes never reached petitioner, since
the truck which carried these boxes was hijacked somewhere along the MacArthur Highway in Paniqui, Tarlac, by
armed men who took with them the truck, its driver, his helper and the cargo.
On 6 January 1971, petitioner commenced action against private respondent in the Court of First Instance of
Pangasinan, demanding payment of P 22,150.00, the claimed value of the lost merchandise, plus damages and
attorney's fees. Petitioner argued that private respondent, being a common carrier, and having failed to exercise the
extraordinary diligence required of him by the law, should be held liable for the value of the undelivered goods.
In his Answer, private respondent denied that he was a common carrier and argued that he could not be held
responsible for the value of the lost goods, such loss having been due to force majeure.
On 10 December 1975, the trial court rendered a Decision   finding private respondent to be a common carrier and
1

holding him liable for the value of the undelivered goods (P 22,150.00) as well as for P 4,000.00 as damages and P
2,000.00 as attorney's fees.
On appeal before the Court of Appeals, respondent urged that the trial court had erred in considering him a common
carrier; in finding that he had habitually offered trucking services to the public; in not exempting him from liability on
the ground of force majeure; and in ordering him to pay damages and attorney's fees.
The Court of Appeals reversed the judgment of the trial court and held that respondent had been engaged in
transporting return loads of freight "as a casual
occupation — a sideline to his scrap iron business" and not as a common carrier. Petitioner came to this Court by way
of a Petition for Review assigning as errors the following conclusions of the Court of Appeals:
1. that private respondent was not a common carrier;
2. that the hijacking of respondent's truck was force majeure; and
3. that respondent was not liable for the value of the undelivered cargo. (Rollo, p. 111)
We consider first the issue of whether or not private respondent Ernesto Cendana may, under the facts earlier set
forth, be properly characterized as a common carrier.
The Civil Code defines "common carriers" in the following terms:
Article 1732. Common carriers are persons, corporations, firms or associations engaged in the
business of carrying or transporting passengers or goods or both, by land, water, or air for
compensation, offering their services to the public.
The above article makes no distinction between one whose principal business activity is the carrying of persons or
goods or both, and one who does such carrying only as an ancillary activity (in local Idiom as "a sideline"). Article
1732 also carefully avoids making any distinction between a person or enterprise offering transportation service on
a regular or scheduled basis and one offering such service on an occasional, episodic or unscheduled basis. Neither
does Article 1732 distinguish between a carrier offering its services to the "general public," i.e., the general community
or population, and one who offers services or solicits business only from a narrow segment of the general population.
We think that Article 1733 deliberaom making such distinctions.
So understood, the concept of "common carrier" under Article 1732 may be seen to coincide neatly with the notion of
"public service," under the Public Service Act (Commonwealth Act No. 1416, as amended) which at least partially
supplements the law on common carriers set forth in the Civil Code. Under Section 13, paragraph (b) of the Public
Service Act, "public service" includes:
... every person that now or hereafter may own, operate, manage, or control in the Philippines, for hire
or compensation, with general or limited clientele, whether permanent, occasional or accidental, and
done for general business purposes, any common carrier, railroad, street railway, traction railway,
subway motor vehicle, either for freight or passenger, or both, with or without fixed route and whatever
may be its classification, freight or carrier service of any class, express service, steamboat, or
steamship line, pontines, ferries and water craft, engaged in the transportation of passengers or freight
or both, shipyard, marine repair shop, wharf or dock, ice plant, ice-refrigeration plant, canal, irrigation
system, gas, electric light, heat and power, water supply and power petroleum, sewerage system, wire
or wireless communications systems, wire or wireless broadcasting stations and other similar public
services. ... (Emphasis supplied)
It appears to the Court that private respondent is properly characterized as a common carrier even though he merely
"back-hauled" goods for other merchants from Manila to Pangasinan, although such back-hauling was done on a
periodic or occasional rather than regular or scheduled manner, and even though private
respondent's principal occupation was not the carriage of goods for others. There is no dispute that private
respondent charged his customers a fee for hauling their goods; that fee frequently fell below commercial freight rates
is not relevant here.
The Court of Appeals referred to the fact that private respondent held no certificate of public convenience, and
concluded he was not a common carrier. This is palpable error. A certificate of public convenience is not a requisite
for the incurring of liability under the Civil Code provisions governing common carriers. That liability arises the moment
a person or firm acts as a common carrier, without regard to whether or not such carrier has also complied with the
requirements of the applicable regulatory statute and implementing regulations and has been granted a certificate of
public convenience or other franchise. To exempt private respondent from the liabilities of a common carrier because
he has not secured the necessary certificate of public convenience, would be offensive to sound public policy; that
would be to reward private respondent precisely for failing to comply with applicable statutory requirements. The
business of a common carrier impinges directly and intimately upon the safety and well being and property of those
members of the general community who happen to deal with such carrier. The law imposes duties and liabilities upon
common carriers for the safety and protection of those who utilize their services and the law cannot allow a common
carrier to render such duties and liabilities merely facultative by simply failing to obtain the necessary permits and
authorizations.
We turn then to the liability of private respondent as a common carrier.
Common carriers, "by the nature of their business and for reasons of public policy"   are held to a very high degree of
2

care and diligence ("extraordinary diligence") in the carriage of goods as well as of passengers. The specific import of
extraordinary diligence in the care of goods transported by a common carrier is, according to Article 1733, "further
expressed in Articles 1734,1735 and 1745, numbers 5, 6 and 7" of the Civil Code.
Article 1734 establishes the general rule that common carriers are responsible for the loss, destruction or deterioration
of the goods which they carry, "unless the same is due to any of the following causes only:
(1) Flood, storm, earthquake, lightning or other natural disaster or calamity;
(2) Act of the public enemy in war, whether international or civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character-of the goods or defects in the packing or-in the containers; and
(5) Order or act of competent public authority.
It is important to point out that the above list of causes of loss, destruction or deterioration which exempt the common
carrier for responsibility therefor, is a closed list. Causes falling outside the foregoing list, even if they appear to
constitute a species of force majeure fall within the scope of Article 1735, which provides as follows:
In all cases other than those mentioned in numbers 1, 2, 3, 4 and 5 of the preceding article, if the
goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they observed extraordinary diligence as required in
Article 1733. (Emphasis supplied)
Applying the above-quoted Articles 1734 and 1735, we note firstly that the specific cause alleged in the instant case
— the hijacking of the carrier's truck — does not fall within any of the five (5) categories of exempting causes listed in
Article 1734. It would follow, therefore, that the hijacking of the carrier's vehicle must be dealt with under the
provisions of Article 1735, in other words, that the private respondent as common carrier is presumed to have been at
fault or to have acted negligently. This presumption, however, may be overthrown by proof of extraordinary diligence
on the part of private respondent.
Petitioner insists that private respondent had not observed extraordinary diligence in the care of petitioner's goods.
Petitioner argues that in the circumstances of this case, private respondent should have hired a security guard
presumably to ride with the truck carrying the 600 cartons of Liberty filled milk. We do not believe, however, that in the
instant case, the standard of extraordinary diligence required private respondent to retain a security guard to ride with
the truck and to engage brigands in a firelight at the risk of his own life and the lives of the driver and his helper.
The precise issue that we address here relates to the specific requirements of the duty of extraordinary diligence in
the vigilance over the goods carried in the specific context of hijacking or armed robbery.
As noted earlier, the duty of extraordinary diligence in the vigilance over goods is, under Article 1733, given additional
specification not only by Articles 1734 and 1735 but also by Article 1745, numbers 4, 5 and 6, Article 1745 provides in
relevant part:
Any of the following or similar stipulations shall be considered unreasonable, unjust and contrary to
public policy:
xxx xxx xxx
(5) that the common carrier shall not be responsible for the acts or omissions of his or
its employees;
(6) that the common carrier's liability for acts committed by thieves, or of robbers who
do not act with grave or irresistible threat, violence or force, is dispensed with or
diminished; and
(7) that the common carrier shall not responsible for the loss, destruction or
deterioration of goods on account of the defective condition of the car vehicle, ship,
airplane or other equipment used in the contract of carriage. (Emphasis supplied)
Under Article 1745 (6) above, 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 carried are reached where the goods are lost as a result of a
robbery which is attended by "grave or irresistible threat, violence or force."
In the instant case, armed men held up the second truck owned by private respondent which carried petitioner's
cargo. The record shows that an information for robbery in band was filed in the Court of First Instance of Tarlac,
Branch 2, in Criminal Case No. 198 entitled "People of the Philippines v. Felipe Boncorno, Napoleon Presno,
Armando Mesina, Oscar Oria and one John Doe." There, the accused were charged with willfully and unlawfully
taking and carrying away with them the second truck, driven by Manuel Estrada and loaded with the 600 cartons of
Liberty filled milk destined for delivery at petitioner's store in Urdaneta, Pangasinan. The decision of the trial court
shows that the accused acted with grave, if not irresistible, threat, violence or force.  Three (3) of the five (5) hold-
3

uppers were armed with firearms. The robbers not only took away the truck and its cargo but also kidnapped the
driver and his helper, detaining them for several days and later releasing them in another province (in Zambales). The
hijacked truck was subsequently found by the police in Quezon City. The Court of First Instance convicted all the
accused of robbery, though not of robbery in band.  4

In these circumstances, we hold that the occurrence of the loss must reasonably be regarded as quite beyond the
control of the common carrier and properly regarded as a fortuitous event. It is necessary to recall that even common
carriers are not made absolute insurers against all risks of travel and of transport of goods, and are not held liable for
acts or events which cannot be foreseen or are inevitable, provided that they shall have complied with the rigorous
standard of extraordinary diligence.
We, therefore, agree with the result reached by the Court of Appeals that private respondent Cendana is not liable for
the value of the undelivered merchandise which was lost because of an event entirely beyond private respondent's
control.
ACCORDINGLY, the Petition for Review on certiorari is hereby DENIED and the Decision of the Court of Appeals
dated 3 August 1977 is AFFIRMED. No pronouncement as to costs.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-56487 October 21, 1991
REYNALDA GATCHALIAN, petitioner,
vs.
ARSENIO DELIM and the HON. COURT OF APPEALS, respondents.
Pedro G. Peralta for petitioner.
Florentino G. Libatique for private respondent.

FELICIANO, J.:
At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying passenger, respondent's
"Thames" mini bus at a point in San Eugenio, Aringay, La Union, bound for Bauang, of the same province. On the
way, while the bus was running along the highway in Barrio Payocpoc, Bauang, Union, "a snapping sound" was
suddenly heard at one part of the bus and, shortly thereafter, the vehicle bumped a cement flower pot on the side of
the road, went off the road, turned turtle and fell into a ditch. Several passengers, including petitioner Gatchalian,
were injured. They were promptly taken to Bethany Hospital at San Fernando, La Union, for medical treatment. Upon
medical examination, petitioner was found to have sustained physical injuries on the leg, arm and forehead,
specifically described as follows: lacerated wound, forehead; abrasion, elbow, left; abrasion, knee, left; abrasion,
lateral surface, leg, left.  1

On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela Delim, wife of respondent, visited them and later paid for their hospitalization and medical expenses. She also
gave petitioner P12.00 with which to pay her transportation expense in going home from the hospital. However, before Mrs. Delim left, she had the injured passengers, including petitioner, sign an
already prepared Joint Affidavit which stated, among other things:

That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after the said Thames met an accident at Barrio Payocpoc Norte, Bauang, La Union while
passing through the National Highway No. 3;
That after a thorough investigation the said Thames met the accident due to mechanical defect and went off the road and turned turtle to the east canal of the road into a creek
causing physical injuries to us;
x x x           x x x          x x x
That we are no longer interested to file a complaint, criminal or civil against  the said driver and owner of the said Thames, because it was an accident  and the said driver and owner of
the said Thames have gone to the extent of helping us to be treated upon our injuries.

xxx xxx xxx 2

(Emphasis supplied)

Notwithstanding this document, petitioner Gathalian filed with the then Court of First Instance of La Union an action extra contractu to recover compensatory and moral damages. She alleged in
the complaint that her injuries sustained from the vehicular mishap had left her with a conspicuous white scar measuring 1 by 1/2 inches on the forehead, generating mental suffering and an
inferiority complex on her part; and that as a result, she had to retire in seclusion and stay away from her friends. She also alleged that the scar diminished her facial beauty and deprived her of
opportunities for employment. She prayed for an award of: P10,000.00 for loss of employment and other opportunities; P10,000.00 for the cost of plastic surgery for removal of the scar on her
forehead; P30,000.00 for moral damages; and P1,000.00 as attorney's fees.
In defense, respondent averred that the vehicular mishap was due to force majeure, and that petitioner had already been paid and moreover had waived any right to institute any action against
him (private respondent) and his driver, when petitioner Gatchalian signed the Joint Affidavit on 14 July 1973.
After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian signed the Joint Affidavit, she relinquished any right of action (whether criminal or civil) that she
may have had against respondent and the driver of the mini-bus.
On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been a valid waiver, but affirmed the dismissal of the case by denying petitioner's claim for
damages:

We are not in accord, therefore, of (sic) the ground of the trial court's dismissal of the complaint, although we conform to the trial court's disposition of the case — its dismissal.
IN VIEW OF THE FOREGOING considerations, there being no error committed by the lower court in dismissing the plaintiff-appellant's complaint, the judgment of dismissal is hereby
affirmed.
Without special pronouncement as to costs.

SO ORDERED. 3

In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court of Appeals and ask this Court to award her actual or compensatory damages as well as moral
damages.
We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of action had been made by petitioner. The relevant language of the Joint Affidavit may be quoted
again:
That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it was an accident and the said driver and owner of
the said Thames have gone to the extent of helping us to be treated upon our injuries. (Emphasis supplied)

A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms which leave no doubt as to the intention of a person to give up a right or benefit which legally
pertains to him. 4
 A waiver may not casually be attributed to a person when the terms thereof do not explicitly and
clearly evidence an intent to abandon a right vested in such person.
The degree of explicitness which this Court has required in purported waivers is illustrated in Yepes and Susaya
v. Samar Express Transit (supra), where the Court in reading and rejecting a purported waiver said:
. . . It appears that before their transfer to the Leyte Provincial Hospital, appellees were asked to sign as,
in fact, they signed the document Exhibit I wherein they stated that "in consideration of the expenses
which said operator has incurred in properly giving us the proper medical treatment, we hereby manifest
our desire to waive any and all claims against the operator of the Samar Express Transit."
x x x           x x x          x x x
Even a cursory examination of the document mentioned above will readily show that appellees did not actually
waive their right to claim damages from appellant for the latter's failure to comply with their contract of
carriage. All that said document proves is that they expressed a "desire" to make the waiver — which
obviously is not the same as making an actual waiver of their right. A waiver of the kind invoked by appellant
must be clear and unequivocal (Decision of the Supreme Court of Spain of July 8, 1887) — which is not the
case of the one relied upon in this appeal. (Emphasis supplied)
If we apply the standard used in Yepes and Susaya, we would have to conclude that the terms of the Joint Affidavit in
the instant case cannot be regarded as a waiver cast in "clear and unequivocal" terms. Moreover, the circumstances
under which the Joint Affidavit was signed by petitioner Gatchalian need to be considered. Petitioner testified that she
was still reeling from the effects of the vehicular accident, having been in the hospital for only three days, when the
purported waiver in the form of the Joint Affidavit was presented to her for signing; that while reading the same, she
experienced dizziness but that, seeing the other passengers who had also suffered injuries sign the document, she
too signed without bothering to read the Joint Affidavit in its entirety. Considering these circumstances there appears
substantial doubt whether petitioner understood fully the import of the Joint Affidavit (prepared by or at the instance of
private respondent) she signed and whether she actually intended thereby to waive any right of action against private
respondent.
Finally, because what is involved here is the liability of a common carrier for injuries sustained by passengers in
respect of whose safety a common carrier must exercise extraordinary diligence, we must construe any such
purported waiver most strictly against the common carrier. For a waiver to be valid and effective, it must not be
contrary to law, morals, public policy or good
customs.   To uphold a supposed waiver of any right to claim damages by an injured passenger, under circumstances
5

like those exhibited in this case, would be to dilute and weaken the standard of extraordinary diligence exacted by the
law from common carriers and hence to render that standard unenforceable.   We believe such a purported waiver is 6

offensive to public policy.

Petitioner Gatchalian also argues that the Court of Appeals, having by majority vote held that there was no
enforceable waiver of her right of action, should have awarded her actual or compensatory and moral damages as a
matter of course.
We have already noted that a duty to exercise extraordinary diligence in protecting the safety of its passengers is
imposed upon a common carrier.   In case of death or injuries to passengers, a statutory presumption arises that the
7

common carrier was at fault or had acted negligently "unless it proves that it [had] observed extraordinary diligence as
prescribed in Articles 1733 and 1755."   In fact, because of this statutory presumption, it has been held that a court
8

need not even make an express finding of fault or negligence on the part of the common carrier in order to hold it
liable.   To overcome this presumption, the common carrier must slow to the court that it had exercised extraordinary
9

diligence to prevent the injuries.   The standard of extraordinary diligence imposed upon common carriers is
10

considerably more demanding than the standard of ordinary diligence, i.e., the diligence of a
good paterfamilias established in respect of the ordinary relations between members of society. A common carrier is
bound to carry its passengers safely" as far as human care and foresight can provide, using the utmost diligence of a
very cautious person, with due regard to all the circumstances".  11

Thus, the question which must be addressed is whether or not private respondent has successfully proved that he had exercised extraordinary diligence to prevent the mishap involving his mini-
bus. The records before the Court are bereft of any evidence showing that respondent had exercised the extraordinary diligence required by law. Curiously, respondent did not even attempt,
during the trial before the court a quo, to prove that he had indeed exercised the requisite extraordinary diligence. Respondent did try to exculpate himself from liability by alleging that the mishap
was the result of force majeure. But allegation is not proof and here again, respondent utterly failed to substantiate his defense of  force majeure. To exempt a common carrier from liability for
death or physical injuries to passengers upon the ground of force majeure, the carrier must clearly show not only that the efficient cause of the casualty was entirely independent of the human will,
but also that it was impossible to avoid. Any participation by the common carrier in the occurrence of the injury will defeat the defense of force majeure. In Servando v. Philippine Steam Navigation
Company, 12
 the Court summed up the essential characteristics of force majeure by quoting with approval from
the Enciclopedia Juridica Española:
Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligor is
exempt from liability non-performance. The Partidas, the antecedent of Article 1174 of the Civil Code, defines
"caso fortuito" as 'an event that takes place by accident and could not have been foreseen. Examples of this
are destruction of houses, unexpected fire, shipwreck, violence of robber.
In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica Española says: 'In legal sense and,
consequently, also in relation to contracts, a "caso fortuito" presents the following essential characteristics: (1)
the cause of the unforeseen and unexpected occurence, or of the failure of the debtor to comply with his
obligation, must be independent of the human will; (2) it must be impossible to foresee the event which
constitutes the "caso fortuito", or if it can be foreseen, it must be impossible to avoid; (3) the occurrence must
be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (4) the obligor
must be free from any participation in the aggravation of the injury resulting to the creditor.
Upon the other hand, the record yields affirmative evidence of fault or negligence on the part of respondent common
carrier. In her direct examination, petitioner Gatchalian narrated that shortly before the vehicle went off the road and
into a ditch, a "snapping sound" was suddenly heard at one part of the bus. One of the passengers, an old woman,
cried out, "What happened?" ("Apay addan samet nadadaelen?"). The driver replied, nonchalantly, "That is only
normal" ("Ugali ti makina dayta"). The driver did not stop to check if anything had gone wrong with the bus. Moreover,
the driver's reply necessarily indicated that the same "snapping sound" had been heard in the bus on previous
occasions. This could only mean that the bus had not been checked physically or mechanically to determine what was
causing the "snapping sound" which had occurred so frequently that the driver had gotten accustomed to it. Such a
sound is obviously alien to a motor vehicle in good operating condition, and even a modicum of concern for life and
limb of passengers dictated that the bus be checked and repaired. The obvious continued failure of respondent to look
after the roadworthiness and safety of the bus, coupled with the driver's refusal or neglect to stop the mini-bus after he
had heard once again the "snapping sound" and the cry of alarm from one of the passengers, constituted wanton
disregard of the physical safety of the passengers, and hence gross negligence on the part of respondent and his
driver.
We turn to petitioner's claim for damages. The first item in that claim relates to revenue which petitioner said she
failed to realize because of the effects of the vehicular mishap. Petitioner maintains that on the day that the mini-bus
went off the road, she was supposed to confer with the district supervisor of public schools for a substitute teacher's
job, a job which she had held off and on as a "casual employee." The Court of Appeals, however, found that at the
time of the accident, she was no longer employed in a public school since, being a casual employee and not a Civil
Service eligible, she had been laid off. Her employment as a substitute teacher was occasional and episodic,
contingent upon the availability of vacancies for substitute teachers. In view of her employment status as such, the
Court of Appeals held that she could not be said to have in fact lost any employment after and by reason of the
accident.   Such was the factual finding of the Court of Appeals, a finding entitled to due respect from this Court.
13

Petitioner Gatchalian has not submitted any basis for overturning this finding of fact, and she may not be awarded
damages on the basis of speculation or conjecture.  14

Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead, is another matter. A person is entitled to the physical integrity of his or her body; if that integrity is violated
or diminished, actual injury is suffered for which actual or compensatory damages are due and assessable. Petitioner Gatchalian is entitled to be placed as nearly as possible in the condition that
she was before the mishap. A scar, especially one on the face of the woman, resulting from the infliction of injury upon her, is a violation of bodily integrity, giving raise to a legitimate claim for
restoration to her conditio ante. If the scar is relatively small and does not grievously disfigure the victim, the cost of surgery may be expected to be correspondingly modest. In Araneta, et al. vs.
Areglado, et al., 15 this Court awarded actual or compensatory damages for, among other things, the surgical removal of the scar on the face of a young boy who had been injured in a vehicular
collision. The Court there held:

We agree with the appellants that the damages awarded by the lower court for the injuries suffered by Benjamin Araneta are inadequate. In allowing not more than P1,000.00 as
compensation for the "permanent deformity and — something like an inferiority complex" as well as for the "pathological condition on the left side of the jaw" caused to said plaintiff,
the court below overlooked the clear evidence on record that to arrest the degenerative process taking place in the mandible and   restore the injured boy to a nearly normal condition,
surgical intervention was needed, for which the doctor's charges would amount to P3,000.00, exclusive of hospitalization fees, expenses and medicines. Furthermore, the operation,
according to Dr. Diño, would probably have to be repeated in order to effectuate a complete cure, while removal of the scar on the face obviously demanded plastic surgery.
x x x           x x x          x x x
The father's failure to submit his son to a plastic operation as soon as possible does not prove that such treatment is not called for. The damage to the jaw and the existence of the
scar in Benjamin Araneta's face are physical facts that can not be reasoned out of existence. That the injury should be treated in order to restore him as far as possible to his original
condition is undeniable. The father's delay, or even his negligence, should not be allowed to prejudice the son who has no control over the parent's action nor impair his right to a full
indemnity.
. . . Still, taking into account the necessity and cost of corrective measures to fully repair the damage; the pain suffered by the injured party; his feelings of inferiority due to
consciousness of his present deformity, as well as the voluntary character of the injury inflicted; and further considering that a repair, however, skillfully conducted, is never equivalent
to the original state, we are of the opinion that the indemnity granted by the trial court should be increased to a total of P18,000.00. (Emphasis supplied)

Petitioner estimated that the cost of having her scar surgically removed was somewhere between P10,000.00 to P15,000.00.  16
 Upon the other hand, Dr. Fe Tayao
Lasam, a witness presented as an expert by petitioner, testified that the cost would probably be between P5,000.00 to
P10,000.00.   In view of this testimony, and the fact that a considerable amount of time has lapsed since the mishap
17

in 1973 which may be expected to increase not only the cost but also very probably the difficulty of removing the scar,
we consider that the amount of P15,000.00 to cover the cost of such plastic surgery is not unreasonable.
Turning to petitioner's claim for moral damages, the long-established rule is that moral damages may be awarded
where gross negligence on the part of the common carrier is shown.   Since we have earlier concluded that 18

respondent common carrier and his driver had been grossly negligent in connection with the bus mishap which had
injured petitioner and other passengers, and recalling the aggressive manuevers of respondent, through his wife, to
get the victims to waive their right to recover damages even as they were still hospitalized for their injuries, petitioner
must be held entitled to such moral damages. Considering the extent of pain and anxiety which petitioner must have
suffered as a result of her physical injuries including the permanent scar on her forehead, we believe that the amount
of P30,000.00 would be a reasonable award. Petitioner's claim for P1,000.00 as atttorney's fees is in fact even more
modest.  19

WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as the decision of the then Court of First Instance of La Union dated 4 December 1975 are hereby
REVERSED and SET ASIDE.Respondent is hereby ORDERED to pay petitioner Reynalda Gatchalian the following sums: 1) P15,000.00 as actual or compensatory damages to cover the cost of
plastic surgery for the removal of the scar on petitioner's forehead; 2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the aggregate amount to bear interest at the legal rate of
6% per annum counting from the promulgation of this decision until full payment thereof. Costs against private respondent.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 84458 November 6, 1989
ABOITIZ SHIPPING CORPORATION, petitioner,
vs.
HON. COURT OF APPEALS, ELEVENTH DIVISION, LUCILA C. VIANA, SPS. ANTONIO VIANA and GORGONIA
VIANA, and PIONEER STEVEDORING CORPORATION, respondents.
Herenio E. Martinez for petitioner.
M.R. Villaluz Law Office for private respondent.

REGALADO, J.:
In this appeal by certiorari, petitioner Aboitiz Shipping Corporation seeks a review of the decision   of respondent
1

Court of Appeals, dated July 29, 1988, the decretal portion of which reads:
WHEREFORE, the judgment appealed from as modified by the order of October 27, 1982, is hereby
affirmed with the modification that appellant Aboitiz Shipping is hereby ordered to pay plaintiff-
appellees the amount of P30,000.00 for the death of Anacleto Viana; actual damages of P9,800.00;
P150,000.00 for unearned income; P7,200.00 as support for deceased's parents; P20,000.00 as moral
damages; P10,000.00 as attorney's fees; and to pay the costs.
The undisputed facts of the case, as found by the court a quo and adopted by respondent court, are as follows: .
The evidence disclosed that on May 11, 1975, Anacleto Viana boarded the vessel M/V Antonia, owned
by defendant, at the port at San Jose, Occidental Mindoro, bound for Manila, having purchased a
ticket (No. 117392) in the sum of P23.10 (Exh. 'B'). On May 12, 1975, said vessel arrived at Pier 4,
North Harbor, Manila, and the passengers therein disembarked, a gangplank having been provided
connecting the side of the vessel to the pier. Instead of using said gangplank Anacleto Viana
disembarked on the third deck which was on the level with the pier. After said vessel had landed, the
Pioneer Stevedoring Corporation took over the exclusive control of the cargoes loaded on said vessel
pursuant to the Memorandum of Agreement dated July 26, 1975 (Exh. '2') between the third party
defendant Pioneer Stevedoring Corporation and defendant Aboitiz Shipping Corporation.
The crane owned by the third party defendant and operated by its crane operator Alejo Figueroa was
placed alongside the vessel and one (1) hour after the passengers of said vessel had disembarked, it
started operation by unloading the cargoes from said vessel. While the crane was being operated,
Anacleto Viana who had already disembarked from said vessel obviously remembering that some of
his cargoes were still loaded in the vessel, went back to the vessel, and it was while he was pointing to
the crew of the said vessel to the place where his cargoes were loaded that the crane hit him, pinning
him between the side of the vessel and the crane. He was thereafter brought to the hospital where he
later expired three (3) days thereafter, on May 15, 1975, the cause of his death according to the Death
Certificate (Exh. "C") being "hypostatic pneumonia secondary to traumatic fracture of the pubic bone
lacerating the urinary bladder" (See also Exh. "B"). For his hospitalization, medical, burial and other
miscellaneous expenses, Anacleto's wife, herein plaintiff, spent a total of P9,800.00 (Exhibits "E", "E-
1", to "E-5"). Anacleto Viana who was only forty (40) years old when he met said fateful accident (Exh.
'E') was in good health. His average annual income as a farmer or a farm supervisor was 400 cavans
of palay annually. His parents, herein plaintiffs Antonio and Gorgonia Viana, prior to his death had
been recipient of twenty (20) cavans of palay as support or P120.00 monthly. Because of Anacleto's
death, plaintiffs suffered mental anguish and extreme worry or moral damages. For the filing of the
instant case, they had to hire a lawyer for an agreed fee of ten thousand (P10,000.00) pesos.  2

Private respondents Vianas filed a complaint   for damages against petitioner corporation (Aboitiz, for brevity) for
3

breach of contract of carriage.

In its answer.   Aboitiz denied responsibility contending that at the time of the accident, the vessel was completely
4

under the control of respondent Pioneer Stevedoring Corporation (Pioneer, for short) as the exclusive stevedoring
contractor of Aboitiz, which handled the unloading of cargoes from the vessel of Aboitiz. It is also averred that since
the crane operator was not an employee of Aboitiz, the latter cannot be held liable under the fellow-servant rule.
Thereafter, Aboitiz, as third-party plaintiff, filed a third-party complaint   against Pioneer imputing liability thereto for
5

Anacleto Viana's death as having been allegedly caused by the negligence of the crane operator who was an
employee of Pioneer under its exclusive control and supervision.
Pioneer, in its answer to the third-party complaint,   raised the defenses that Aboitiz had no cause of action against
6

Pioneer considering that Aboitiz is being sued by the Vianas for breach of contract of carriage to which Pioneer is not
a party; that Pioneer had observed the diligence of a good father of a family both in the selection and supervision of its
employees as well as in the prevention of damage or injury to anyone including the victim Anacleto Viana; that
Anacleto Viana's gross negligence was the direct and proximate cause of his death; and that the filing of the third-
party complaint was premature by reason of the pendency of the criminal case for homicide through reckless
imprudence filed against the crane operator, Alejo Figueroa.
In a decision rendered on April 17, 1980 by the trial court,   Aboitiz was ordered to pay the Vianas for damages
7

incurred, and Pioneer was ordered to reimburse Aboitiz for whatever amount the latter paid the Vianas. The
dispositive portion of said decision provides:
WHEREFORE, judgment is hereby rendered in favor of the plantiffs:
(1) ordering defendant Aboitiz Shipping Corporation to pay to plaintiffs the sum of P12,000.00 for the
death of Anacleto Viana P9,800.00 as actual damages; P533,200.00 value of the 10,664 cavans of
 palay computed at P50.00 per cavan; P10,000.00 as attorney's fees; F 5,000.00, value of the 100
cavans of palay as support for five (5) years for deceased (sic) parents, herein plaintiffs Antonio and
Gorgonia Viana computed at P50.00 per cavan; P7,200.00 as support for deceased's parents
computed at P120.00 a month for five years pursuant to Art. 2206, Par. 2, of the Civil Code;
P20,000.00 as moral damages, and costs; and
(2) ordering the third party defendant Pioneer Stevedoring Corporation to reimburse defendant and
third party plaintiff Aboitiz Shipping Corporation the said amounts that it is ordered to pay to herein
plaintiffs.
Both Aboitiz and Pioneer filed separate motions for reconsideration wherein they similarly raised the trial court's failure
to declare that Anacleto Viana acted with gross negligence despite the overwhelming evidence presented in support
thereof. In addition, Aboitiz alleged, in opposition to Pioneer's motion, that under the memorandum of agreement the
liability of Pioneer as contractor is automatic for any damages or losses whatsoever occasioned by and arising from
the operation of its arrastre and stevedoring service.
In an order dated October 27, 1982,   the trial court absolved Pioneer from liability for failure of the Vianas and Aboitiz
8

to preponderantly establish a case of negligence against the crane operator which the court a quo ruled is never
presumed, aside from the fact that the memorandum of agreement supposedly refers only to Pioneer's liability in case
of loss or damage to goods handled by it but not in the case of personal injuries, and, finally that Aboitiz cannot
properly invoke the fellow-servant rule simply because its liability stems from a breach of contract of carriage. The
dispositive portion of said order reads:
WHEREFORE, judgment is hereby modified insofar as third party defendant Pioneer Stevedoring
Corporation is concerned rendered in favor of the plaintiffs-,:
(1) Ordering defendant Aboitiz Shipping Corporation to pay the plaintiffs the sum of P12,000.00 for the
death of Anacleto Viana; P9,000.00 (sic) as actual damages; P533,200.00 value of the 10,664 cavans
of palay computed at P50.00 per cavan; P10,000.00 as attorney's fees; P5,000.00 value of the 100
cavans of palay as support for five (5) years for deceased's parents, herein plaintiffs Antonio and
Gorgonia Viana,computed at P50.00 per cavan; P7,200.00 as support for deceased's parents
computed at P120.00 a month for five years pursuant to Art. 2206, Par. 2, of the Civil Code;
P20,000.00 as moral damages, and costs; and
(2) Absolving third-party defendant Pioneer Stevedoring Corporation for (sic) any liability for the death
of Anacleto Viana the passenger of M/V Antonia owned by defendant third party plaintiff Aboitiz
Shipping Corporation it appearing that the negligence of its crane operator has not been established
therein.
Not satisfied with the modified judgment of the trial court, Aboitiz appealed the same to respondent Court of Appeals
which affirmed the findings of of the trial court except as to the amount of damages awarded to the Vianas.
Hence, this petition wherein petitioner Aboitiz postulates that respondent court erred:
(A) In holding that the doctrine laid down by this honorable Court in La Mallorca vs. Court of Appeals,
et al. (17 SCRA 739, July 27, 1966) is applicable to the case in the face of the undisputable fact that
the factual situation under the La Mallorca case is radically different from the facts obtaining in this
case;
(B) In holding petitioner liable for damages in the face of the finding of the court a quo and confirmed
by the Honorable respondent court of Appeals that the deceased, Anacleto Viana was guilty of
contributory negligence, which, We respectfully submit contributory negligence was the proximate
cause of his death; specifically the honorable respondent Court of Appeals failed to apply Art. 1762 of
the New Civil Code;
(C) In the alternative assuming the holding of the Honorable respondent Court of Appears that
petitioner may be legally condemned to pay damages to the private respondents we respectfully
submit that it committed a reversible error when it dismissed petitioner's third party complaint against
private respondent Pioneer Stevedoring Corporation instead of compelling the latter to reimburse the
petitioner for whatever damages it may be compelled to pay to the private respondents Vianas.  9

At threshold, it is to be observed that both the trial court and respondent Court of Appeals found the victim Anacleto
Viana guilty of contributory negligence, but holding that it was the negligence of Aboitiz in prematurely turning over the
vessel to the arrastre operator for the unloading of cargoes which was the direct, immediate and proximate cause of
the victim's death.
I. Petitioner contends that since one (1) hour had already elapsed from the time Anacleto Viana disembarked from the
vessel and that he was given more than ample opportunity to unload his cargoes prior to the operation of the crane,
his presence on the vessel was no longer reasonable e and he consequently ceased to be a passenger. Corollarily, it
insists that the doctrine in La Mallorca vs. Court of Appeals, et al.   is not applicable to the case at bar.
10

The rule is that the relation of carrier and passenger continues until the passenger has been landed at the port of
destination and has left the vessel owner's dock or premises.   Once created, the relationship will not ordinarily
11

terminate until the passenger has, after reaching his destination, safely alighted from the carrier's conveyance or had
a reasonable opportunity to leave the carrier's premises. All persons who remain on the premises a reasonable time
after leaving the conveyance are to be deemed passengers, and what is a reasonable time or a reasonable delay
within this rule is to be determined from all the circumstances, and includes a reasonable time to see after his
baggage and prepare for his departure.  The carrier-passenger relationship is not terminated merely by the fact that
12

the person transported has been carried to his destination if, for example, such person remains in the carrier's
premises to claim his baggage. 13

It was in accordance with this rationale that the doctrine in the aforesaid case of La Mallorca was enunciated, to wit:
It has been recognized as a rule that the relation of carrier and passenger does not cease at the
moment the passenger alights from the carrier's vehicle at a place selected by the carrier at the point
of destination, but continues until the passenger has had a reasonable time or a reasonable
opportunity to leave the carrier's premises. And, what is a reasonable time or a reasonable delay
within this rule is to be determined from all the circumstances. Thus, a person who, after alighting from
 a train, walks along the station platform is considered still a passenger. So also, where a passenger
has alighted at his destination and is proceeding by the usual way to leave the company's premises,
but before actually doing so is halted by the report that his brother, a fellow passenger, has been shot,
and he in good faith and without intent of engaging in the difficulty, returns to relieve his brother, he is
deemed reasonably and necessarily delayed and thus continues to be a passenger entitled as such to
the protection of the railroad company and its agents.
In the present case, the father returned to the bus to get one of his baggages which was not unloaded
when they alighted from the bus. Racquel, the child that she was, must have followed the father.
However, although the father was still on the running board of the bus waiting for the conductor to
hand him the bag or bayong, the bus started to run, so that even he (the father) had to jump down
from the moving vehicle. It was at this instance that the child, who must be near the bus, was run over
and killed. In the circumstances, it cannot be claimed that the carrier's agent had exercised the 'utmost
diligence' of a 'very cautious person' required by Article 1755 of the Civil Code to be observed by a
common carrier in the discharge of its obligation to transport safely its passengers. ... The presence of
said passengers near the bus was not unreasonable and they are, therefore, to be considered still as
passengers of the carrier, entitled to the protection under their contract of carriage. 
14

It is apparent from the foregoing that what prompted the Court to rule as it did in said case is the fact of the
passenger's reasonable presence within the carrier's premises. That reasonableness of time should be made to
depend on the attending circumstances of the case, such as the kind of common carrier, the nature of its business,
the customs of the place, and so forth, and therefore precludes a consideration of the time element per se without
taking into account such other factors. It is thus of no moment whether in the cited case of  La Mallorca there was no
appreciable interregnum for the passenger therein to leave the carrier's premises whereas in the case at bar, an
interval of one (1) hour had elapsed before the victim met the accident. The primary factor to be considered is the
existence of a reasonable cause as will justify the presence of the victim on or near the petitioner's vessel. We believe
there exists such a justifiable cause.
It is of common knowledge that, by the very nature of petitioner's business as a shipper, the passengers of vessels
are allotted a longer period of time to disembark from the ship than other common carriers such as a passenger bus.
With respect to the bulk of cargoes and the number of passengers it can load, such vessels are capable of
accommodating a bigger volume of both as compared to the capacity of a regular commuter bus. Consequently, a
ship passenger will need at least an hour as is the usual practice, to disembark from the vessel and claim his baggage
whereas a bus passenger can easily get off the bus and retrieve his luggage in a very short period of time. Verily,
petitioner cannot categorically claim, through the bare expedient of comparing the period of time entailed in getting the
passenger's cargoes, that the ruling in La Mallorca is inapplicable to the case at bar. On the contrary, if we are to
apply the doctrine enunciated therein to the instant petition, we cannot in reason doubt that the victim Anacleto Viana
was still a passenger at the time of the incident. When the accident occurred, the victim was in the act of unloading his
cargoes, which he had every right to do, from petitioner's vessel. As earlier stated, a carrier is duty bound not only to
bring its passengers safely to their destination but also to afford them a reasonable time to claim their baggage.
It is not definitely shown that one (1) hour prior to the incident, the victim had already disembarked from the vessel.
Petitioner failed to prove this. What is clear to us is that at the time the victim was taking his cargoes, the vessel had
already docked an hour earlier. In consonance with common shipping procedure as to the minimum time of one (1)
hour allowed for the passengers to disembark, it may be presumed that the victim had just gotten off the vessel when
he went to retrieve his baggage. Yet, even if he had already disembarked an hour earlier, his presence in petitioner's
premises was not without cause. The victim had to claim his baggage which was possible only one (1) hour after the
vessel arrived since it was admittedly standard procedure in the case of petitioner's vessels that the unloading
operations shall start only after that time. Consequently, under the foregoing circumstances, the victim Anacleto Viana
is still deemed a passenger of said carrier at the time of his tragic death.
II. Under the law, common carriers are, from the nature of their business and for reasons of public policy, bound to
observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by
them, according to all the circumstances of each case.   More particularly, a common carrier is bound to carry the
15

passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances.   Thus, where a passenger dies or is injured, the common carrier
16

is presumed to have been at fault or to have acted negligently.   This gives rise to an action for breach of contract of
17

carriage where all that is required of plaintiff is to prove the existence of the contract of carriage and its non-
performance by the carrier, that is, the failure of the carrier to carry the passenger safely to his destination,    which, in
18

the instant case, necessarily includes its failure to safeguard its passenger with extraordinary diligence while such
relation subsists.
The presumption is, therefore, established by law that in case of a passenger's death or injury the operator of the
vessel was at fault or negligent, having failed to exercise extraordinary diligence, and it is incumbent upon it to rebut
the same. This is in consonance with the avowed policy of the State to afford full protection to the passengers of
common carriers which can be carried out only by imposing a stringent statutory obligation upon the latter.
Concomitantly, this Court has likewise adopted a rigid posture in the application of the law by exacting the highest
degree of care and diligence from common carriers, bearing utmost in mind the welfare of the passengers who often
become hapless victims of indifferent and profit-oriented carriers. We cannot in reason deny that petitioner failed to
rebut the presumption against it. Under the facts obtaining in the present case, it cannot be gainsaid that petitioner
had inadequately complied with the required degree of diligence to prevent the accident from happening.
As found by the Court of Appeals, the evidence does not show that there was a cordon of drums around the perimeter
of the crane, as claimed by petitioner. It also adverted to the fact that the alleged presence of visible warning signs in
the vicinity was disputable and not indubitably established. Thus, we are not inclined to accept petitioner's explanation
that the victim and other passengers were sufficiently warned that merely venturing into the area in question was
fraught with serious peril. Definitely, even assuming the existence of the supposed cordon of drums loosely placed
around the unloading area and the guard's admonitions against entry therein, these were at most insufficient
precautions which pale into insignificance if considered vis-a-vis the gravity of the danger to which the deceased was
exposed. There is no showing that petitioner was extraordinarily diligent in requiring or seeing to it that said
precautionary measures were strictly and actually enforced to subserve their purpose of preventing entry into the
forbidden area. By no stretch of liberal evaluation can such perfunctory acts approximate the "utmost diligence of very
cautious persons" to be exercised "as far as human care and foresight can provide" which is required by law of
common carriers with respect to their passengers.
While the victim was admittedly contributorily negligent, still petitioner's aforesaid failure to exercise extraordinary
diligence was the proximate and direct cause of, because it could definitely have prevented, the former's death.
Moreover, in paragraph 5.6 of its petition, at bar,   petitioner has expressly conceded the factual finding of respondent
19

Court of Appeals that petitioner did not present sufficient evidence in support of its submission that the deceased
Anacleto Viana was guilty of gross negligence. Petitioner cannot now be heard to claim otherwise.
No excepting circumstance being present, we are likewise bound by respondent court's declaration that there was no
negligence on the part of Pioneer Stevedoring Corporation, a confirmation of the trial court's finding to that effect,
hence our conformity to Pioneer's being absolved of any liability.
As correctly observed by both courts, Aboitiz joined Pioneer in proving the alleged gross negligence of the victim,
hence its present contention that the death of the passenger was due to the negligence of the crane operator cannot
be sustained both on grounds, of estoppel and for lack of evidence on its present theory. Even in its answer filed in
the court below it readily alleged that Pioneer had taken the necessary safeguards insofar as its unloading operations
were concerned, a fact which appears to have been accepted by the plaintiff therein by not impleading Pioneer as a
defendant, and likewise inceptively by Aboitiz by filing its third-party complaint only after ten (10) months from the
institution of the suit against it. Parenthetically, Pioneer is not within the ambit of the rule on extraordinary diligence
required of, and the corresponding presumption of negligence foisted on, common carriers like Aboitiz. This, of
course, does not detract from what we have said that no negligence can be imputed to Pioneer but, that on the
contrary, the failure of Aboitiz to exercise extraordinary diligence for the safety of its passenger is the rationale for our
finding on its liability.
WHEREFORE, the petition is DENIED and the judgment appealed from is hereby AFFIRMED in toto.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
 
G.R. No. 118126 March 4, 1996
TRANS-ASIA SHIPPING LINES, INC., petitioner,
vs.
COURT OF APPEALS and ATTY. RENATO T. ARROYO, respondents.
 
DAVIDE, JR., J.:p
As formulated by the petitioner, the issue in this petition for review on certiorari under Rule 45 of the Rules of Court is as follows:
In case of interruption of a vessel's voyage and the consequent delay in that vessel's arrival at its port
of destination, is the right of a passenger affected thereby to be determined and governed by the
vague Civil Code provision on common carriers, or shall it be, in the absence of a specific provision
thereon governed by Art. 698 of the Code of Commerce? 1

The petitioner considers it a "novel question of law."

Upon a closer evaluation, however, of the challenged decision of the Court of Appeals of 23 November 1994,  vis-a- 2

vis, the decision of 29 June 1992 in Civil Case No. 91-491 of the Regional Trial Court (RTC) of Cagayan de Oro City,
Branch 24,  as well as the allegations and arguments adduced by the parties, we find the petitioner's formulation of
3

the issue imprecise. As this Court sees it, what stands for resolution is a common carrier's liability for damages to a
passenger who disembarked from the vessel upon its return to the port of origin, after it suffered engine trouble and
had to stop at sea, having commenced the contracted voyage on one engine.
The antecedents are summarized by the Court of Appeals as follows:
Plaintiff [herein private respondent Atty. Renato Arroyo], a public attorney, bought a ticket [from]
defendant [herein petitioner], a corporation engaged in . . . inter-island shipping, for the voyage of M/V
Asia Thailand vessel to Cagayan de Oro City from Cebu City on November 12, 1991.
At around 5:30 in the evening of November 12, 1991, plaintiff boarded the M/V Asia Thailand vessel.
At that instance, plaintiff noticed that some repair works [sic] were being undertaken on the engine of
the vessel. The vessel departed at around 11:00 in the evening with only one (1) engine running.
After an hour of slow voyage, the vessel stopped near Kawit Island and dropped its anchor thereat.
After half an hour of stillness, some passengers demanded that they should be allowed to return to
Cebu City for they were no longer willing to continue their voyage to, Cagayan de Oro City. The
captain acceeded [sic] to their request and thus the vessel headed back to Cebu City.
At Cebu City, plaintiff together with the other passengers who requested to be brought back to Cebu
City, were allowed to disembark. Thereafter, the vessel proceeded to Cagayan de Oro City. Plaintiff,
the next day, boarded the M/V Asia Japan for its voyage to Cagayan de Oro City, likewise a vessel of
defendant.
On account of this failure of defendant to transport him to the place of destination on November 12,
1991, plaintiff filed before the trial court a complaint for damages against defendant. 4

In his complaint, docketed as Civil Case No. 91-491, plaintiff (hereinafter private respondent) alleged that the engines
of the M/V Asia Thailand conked out in the open sea, and for more than an hour it was stalled and at the mercy of the
waves, thus causing fear in the passengers. It sailed back to Cebu City after it regained power, but for unexplained
reasons, the passengers, including the private respondent, were arrogantly told to disembark without the necessary
precautions against possible injury to them. They were thus unceremoniously dumped, which only exacerbated the
private respondent's mental distress. He further alleged that by reason of the petitioner's wanton, reckless, and willful
acts, he was unnecessarily exposed to danger and, having been stranded in Cebu City for a day, incurred additional
expenses and loss of income. He then prayed that he be awarded P1,100.00, P50,000.00, and P25,000.00 as
compensatory, moral; and exemplary damages, respectively. 5

In his pre-trial brief, the private respondent asserted that his complaint was "an action for damages arising from bad
faith, breach of contract and from tort," with the former arising from the petitioner's "failure to carry [him] to his place of
destination as contracted," while the latter from the "conduct of the [petitioner] resulting [in] the infliction of emotional
distress" to the private respondent. 6

After due trial, the trial court rendered its decision  and ruled that the action was only for breach of contract, with
7

Articles 1170, 1172, and 1173 of the Civil Code as applicable law — not Article 2180 of the same Code. It was of the
opinion that Article 1170 made a person liable for damages if, in the performance of his obligation, he was guilty of
fraud, negligence, or delay, or in any manner contravened the tenor thereof; moreover, pursuant to Article 2201 of the
same Code, to be entitled to damages, the non-performance of the obligation must have been tainted not only by
fraud, negligence, or delay, but also bad faith, malice, and wanton attitude. It then disposed of the case as follows:
WHEREFORE, it not appearing from the evidence that plaintiff was left in the Port of Cebu because of
the fault, negligence, malice or wanton attitude of defendant's employees, the complaint is
DISMISSED. Defendant's counterclaim is likewise dismissed it not appearing also that filing of the
case by plaintiff was motivated by malice or bad faith. 8
The trial court made the following findings to support its disposition:
In the light of the evidence adduced by the parties and of the above provisions of the New Civil Code,
the issue to be resolved, in the resolution of this case is whether or not, defendant thru its employees
in [sic] the night of November 12, 1991, committed fraud, negligence, bad faith or malice when it left
plaintiff in the Port of Cebu when it sailed back to Cagayan de Oro City after it has [sic] returned from
Kawit Island.
Evaluation of the evidence of the parties tended to show nothing that defendant committed fraud. As
early as 3:00 p.m. of November 12, 1991, defendant did not hide the fact that the cylinder head
cracked. Plaintiff even saw during its repair. If he had doubts as to the vessel's capacity to sail, he had
time yet to take another boat. The ticket could be returned to defendant and corresponding cash
[would] be returned to him.
Neither could negligence, bad faith or malice on the part of defendant be inferred from the evidence of
the parties. When the boat arrived at [the] Port of Cebu after it returned from Kawit Island, there was
an announcement that passengers who would like to disembark were given ten (10) minutes only to
do so. By this announcement, it could be inferred that the boat will [sic] proceed to Cagayan de Oro
City. If plaintiff entertained doubts, he should have asked a member of the crew of the boat or better
still, the captain of the boat. But as admitted by him, he was of the impression only that the boat will
not proceed to Cagayan de Oro that evening so he disembarked. He was instead, the ones [sic]
negligent. Had he been prudent, with the announcement that those who will disembark were given ten
minutes only, he should have lingered a little by staying in his cot and inquired whether the boat will
proceed to Cagayan de Oro City or not. Defendant cannot be expected to be telling [sic] the reasons
to each passenger. Announcement by microphone was enough.
The court is inclined to believe that the story of defendant that the boat returned to the Port of Cebu
because of the request of the passengers in view of the waves. That it did not return because of the
defective engines as shown by the fact that fifteen (15) minutes after the boat docked [at] the Port of
Cebu and those who wanted to proceed to Cagayan de Oro disembarked, it left for Cagayan de Oro
City.
The defendant got nothing when the boat returned to Cebu to let those who did not want to proceed to
Cagayan de Oro City including plaintiff disembarked. On the contrary, this would mean its loss instead
because it will have to refund their tickets or they will use it the next trip without paying anymore. It is
hard therefore, to imagine how defendant by leaving plaintiff in Cebu could have acted in bad faith,
negligently, wantonly and with malice.
If plaintiff, therefore, was not able to [m]ake the trip that night of November 12, 1991, it was not
because defendant maliciously did it to exclude him [from] the trip. If he was left, it was because of his
fault or negligence. 9

Unsatisfied, the private respondent appealed to the Court of Appeals (CA-G.R. CV No. 39901) and submitted for its
determination the following assignment of errors: (1) the trial court erred in not finding that the defendant-appellee was
guilty of fraud, delay, negligence, and bad faith; and (2) the trial court. erred in not awarding moral and exemplary
damages. 10

In its decision of 23 November 1994,  the Court of Appeals reversed the trial court's decision by applying Article 1755
11

in relation to Articles 2201, 2208, 2217, and 2232 of the Civil Code and, accordingly, awarded compensatory, moral,
and exemplary damages as follows:
WHEREFORE, premises considered, the appealed decision is hereby REVERSED and SET ASIDE
and another one is rendered ordering defendant-appellee to pay plaintiff-appellant:
1. P20,000.00 as moral damages;
2. P10,000.00 as exemplary damages;
3. P5,000.00 as attorney's fees;
4. Cost of suit.
SO ORDERED. 12

It did not, however, allow the grant of damages for the delay in the performance of the petitioner's obligation as the
requirement of demand set forth in Article 1169 of the Civil Code had not been met by the private respondent.
Besides, it found that the private respondent offered no evidence to prove that his contract of carriage with the
petitioner provided for liability in case of delay in departure, nor that a designation of the time of departure was the
controlling motive for the establishment of the contract. On the latter, the court a quo observed that the private
respondent even admitted he was unaware of the vessel's departure time, and it was only when he boarded the
vessel that he became aware of such. Finally, the respondent Court found no reasonable basis for the private
respondent's belief that demand was useless because the petitioner had rendered it beyond its power to perform its
obligation; on the contrary, he even admitted that the petitioner had been assuring the passengers that the vessel
would leave on time, and that it could still perform its obligation to transport them as scheduled.
To justify its award of damages, the Court of Appeals ratiocinated as follows:
It is an established and admitted fact that the vessel before the voyage had undergone some repair
work on the cylinder head of the engine. It is likewise admitted by defendant-appellee that it left the
port of Cebu City with only one engine running. Defendant-appellee averred:
. . . The dropping of the vessel's anchor after running slowly on only one engine when
it departed earlier must have alarmed some nervous passengers . . .
The entries in the logbook which defendant-appellee itself offered as evidence categorically stated
therein that the vessel stopped at Kawit Island because of engine trouble. It reads:
2330 HRS STBD ENGINE' EMERGENCY STOP
2350 HRS DROP ANCHOR DUE TO ENGINE TROUBLE, 2 ENGINE STOP.
The stoppage was not to start and synchronized [sic] the engines of the vessel as claimed by
defendant-appellee. It was because one of the engines of the vessel broke down; it was because of
 the disability of the vessel which from the very beginning of the voyage was known to defendant-
appellee.
Defendant-appellee from the very start of the voyage knew for a fact that the vessel was not yet in its
sailing condition because the second engine was still being repaired. Inspite of this knowledge,
defendant-appellee still proceeded to sail with only one engine running.
Defendant-appellee at that instant failed to exercise the diligence which all common carriers should
exercise in transporting or carrying passengers. The law does not merely require extraordinary
diligence in the performance of the obligation. The law mandates that common carrier[s] should
exercise utmost diligence the transport of passengers.
Article 1755 of the New Civil Code provides:
Art. 1755. A common carrier is bound to carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence of very cautious persons,
with a due regard for all the circumstances.
Utmost diligence of a VERY CAUTIOUS person dictates that defendant-appellee should have pursued
the voyage only when its vessel was already fit to sail. Defendant-appellee should have made certain
that the vessel [could] complete the voyage before starting [to] sail. Anything less than this, the vessel
[could not] sail . . . with so many passengers on board it.
However, defendant-appellant [sic] in complete disregard of the safety of the passengers, chose to
proceed with its voyage even if only one engine was running as the second engine was still being
repaired during the voyage. Defendant-appellee disregarded the not very remote possibility that
because of the disability of the vessel, other problems might occur which would endanger the lives of
the passengers sailing with a disabled vessel.
As expected, . . . engine trouble occurred. Fortunate[ly] for defendant-appellee, such trouble only
necessitated the stoppage of the vessel and did not cause the vessel to capsize. No wonder why
some passengers requested to be brought back to Cebu City. Common carriers which are mandated
to exercise utmost diligence should not be taking these risks.
On this premise, plaintiff-appellant should not be faulted why he chose to disembark from the vessel
with the other passengers when it returned back to Cebu City. Defendant-appellee may call him a very
"panicky passenger" or a "nervous person", but this will not relieve defendant-appellee from the liability
it incurred for its failure to exercise utmost diligence.
13

xxx xxx xxx

As to the second assigned error, we find that plaintiff-appellant is entitled to the award of moral and
exemplary damages for the breach committed by defendant-appellee.
As discussed, defendant-appellee in sailing to Cagayan de Oro City with only one engine and with full
knowledge of the true condition of the vessel, acted. in bad faith with malice, in complete disregard for
the safety of the passengers and only for its own personal advancement/interest.
The Civil Code provides:
Art. 2201.
x x x           x x x          x x x
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible
for all damages which may be reasonably attributed to the non-performance of the
obligation.
Plaintiff-appellant is entitled to moral damages for the mental anguish, fright and serious anxiety he
suffered during the voyage when the vessel's engine broke down and when he disembarked from the
vessel during the wee hours of the morning at Cebu City when it returned. 14

Moral damages are recoverable in a damage suit predicated upon a breach of contract of carriage
where it is proved that the carrier was guilty of fraud or bad faith even if death does not result. 
15

Fraud and bad faith by defendant-appellee having been established, the award of moral damages is in
order.
16

To serve as a deterrent to the commission of similar acts in the future, exemplary damages should be
imposed upon defendant-appellee.  7 Exemplary damages are designed by our civil law to permit the
1

courts to reshape behavior that is socially deleterious in its consequence by creating . . . negative
incentives or deterrents against such behavior. 18

Moral damages having been awarded, exemplary damages maybe properly awarded. When
entitlement to moral damages has been established, the award of exemplary damages is proper. 19

The petitioner then instituted this petition and submitted the question of law earlier adverted to.
Undoubtedly, there was, between the petitioner and the private respondent, a contract of common carriage. The laws
of primary application then are the provisions on common carriers under Section 4, Chapter 3, Title VIII, Book IV of
the Civil Code, while for all other matters not regulated thereby, the Code of Commerce and special laws. 20

Under Article 1733 of the Civil Code, the petitioner was bound to observe extraordinary diligence in ensuring the
safety of the private respondent. That meant that the petitioner was, pursuant to Article 1755 of the said Code, bound
to carry the private respondent safely as far as human care and foresight could provide, using the utmost diligence of
very cautious persons, with due regard for all the circumstances. In this case, we are in full accord with the Court of
Appeals that the petitioner failed to discharge this obligation.
Before commencing the contracted voyage, the petitioner undertook some repairs on the cylinder head of one of the
vessel's engines. But even before it could finish these repairs, it allowed the vessel to leave the port of origin on only
one functioning engine, instead of two. Moreover, even the lone functioning engine was not in perfect condition as
sometime after it had run its course, it conked out. This caused the vessel to stop and remain a drift at sea, thus in
order to prevent the ship from capsizing, it had to drop anchor. Plainly, the vessel was unseaworthy even before the
voyage began. For a vessel to be seaworthy, it must be adequately equipped for the voyage and manned with a
sufficient number of competent officers and crew.   The failure of a common carrier to maintain in seaworthy condition
21

its vessel involved in a contract of carriage is a clear breach of its duty prescribed in Article 1755 of the Civil Code.
As to its liability for damages to the private respondent, Article 1764 of the Civil Code expressly provides:
Art. 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII
of this Book, concerning Damages. Article 2206 shall also apply to the death of a passenger caused
by the breach of contract by common carrier.
The damages comprised in Title XVIII of the Civil Code are actual or compensatory, moral, nominal,
temperate or moderate, liquidated, and exemplary.
In his complaint, the private respondent claims actual or compensatory, moral, and exemplary damages.
Actual or compensatory damages represent the adequate compensation for pecuniary loss suffered and for profits the
obligee failed to obtain. 22

In contracts or quasi-contracts, the obligor is liable for all the damages which may be reasonably attributed to the non-
performance of the obligation if he is guilty of fraud, bad faith, malice, or wanton attitude.23

Moral damages include moral suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, or similar injury. They may be recovered in the cases enumerated in Article
2219 of the Civil Code, likewise, if they are the proximate result of, as in this case, the petitioner's breach of the
contract of carriage.  Anent a breach of a contract of common carriage, moral damages may be awarded if the
24

common carrier, like the petitioner, acted fraudulently or in bad faith.25

Exemplary damages are imposed by way of example or correction for the public good, in addition to moral, temperate,
liquidated or compensatory damages.  In contracts and quasi-contracts, exemplary damages may be awarded if the
26

defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. 7 It cannot, however, be
2

considered as a matter of right; the court having to decide whether or not they should be adjudicated.  Before the 28

court may consider an award for exemplary damages, the plaintiff must first show that he is entitled to moral,
temperate or compensatory damages; but it is not necessary that he prove the monetary value thereof. 29

The Court of Appeals did not grant the private respondent actual or compensatory damages, reasoning that no delay
was incurred since there was no demand, as required by Article 1169 of the Civil Code. This article, however, finds no
application in this case because, as found by the respondent Court, there was in fact no delay in the commencement
of the contracted voyage. If any delay was incurred, it was after the commencement of such voyage, more
specifically, when the voyage was subsequently interrupted when the vessel had to stop near Kawit Island after the
only functioning engine conked out.
As to the rights and duties of the parties strictly arising out of such delay, the Civil Code is silent. However, as
correctly pointed out by the petitioner, Article 698 of the Code of Commerce specifically provides for such a situation.
It reads:
In case a voyage already begun should be interrupted, the passengers shall be obliged to pay the fare
in proportion to the distance covered, without right to recover for losses and damages if the
interruption is due to fortuitous event or force majeure, but with a right to indemnity if the interruption
should have been caused by the captain exclusively. If the interruption should be caused by the
disability of the vessel and a passenger should agree to await the repairs, he may not be required to
pay any increased price of passage, but his living expenses during the stay shall be for his own
account.
This article applies suppletorily pursuant to Article 1766 of the Civil Code.
Of course, this does not suffice for a resolution of the case at bench for, as earlier stated, the cause of the delay or
interruption was the petitioner's failure to observe extraordinary diligence. Article 698 must then be read together with
Articles 2199, 2200, 2201, and 2208 in relation to Article 21 of the Civil Code. So read, it means that the petitioner is
liable for any pecuniary loss or loss of profits which the private respondent may have suffered by reason thereof. For
the private respondent, such would be the loss of income if unable to report to his office on the day he was supposed
to arrive were it not for the delay. This, however, assumes that he stayed on the vessel and was with it when it
thereafter resumed its voyage; but he did not. As he and some passengers resolved not to complete the voyage, the
vessel had to return to its port of origin and allow them to disembark. The private respondent then took the petitioner's
other vessel the following day, using the ticket he had purchased for the previous day's voyage.
Any further delay then in the private respondent's arrival at the port of destination was caused by his decision to
disembark. Had he remained on the first vessel, he would have reached his destination at noon of 13 November
1991, thus been able to report to his office in the afternoon. He, therefore, would have lost only the salary for half of a
day. But actual or compensatory damages must be proved,  which the private respondent failed to do. There is no
30

convincing evidence that he did not receive his salary for 13 November 1991 nor that his absence was not excused.
We likewise fully agree with the Court of Appeals that the petitioner is liable for moral and exemplary damages. In
allowing its unseaworthy M/V Asia Thailand to leave the port of origin and undertake the contracted voyage, with full
awareness that it was exposed to perils of the sea, it deliberately disregarded its solemn duty to exercise
extraordinary diligence and obviously acted with bad faith and in a wanton and reckless manner. On this score,
however, the petitioner asserts that the safety or the vessel and passengers was never at stake because the sea was
"calm" in the vicinity where it stopped as faithfully recorded in the vessel's log book (Exhibit "4"). Hence, the petitioner
concludes, the private respondent was merely "over-reacting" to the situation obtaining then. 31

We hold that the petitioner's defense cannot exculpate it nor mitigate its liability. On the contrary, such a claim
demonstrates beyond cavil the petitioner's lack of genuine concern for the safety of its passengers. It was, perhaps,
only providential then the sea happened to be calm. Even so, the petitioner should not expect its passengers to act in
the manner it desired. The passengers were not stoics; becoming alarmed, anxious, or frightened at the stoppage of a
vessel at sea in an unfamiliar zone as nighttime is not the sole prerogative of the faint-hearted. More so in the light of
the many tragedies at sea resulting in the loss of lives of hopeless passengers and damage to property simply
because common carriers failed in their duty to exercise extraordinary diligence in the performance of their
obligations.
We cannot, however, give our affirmance to the award of attorney's fees. Under Article 2208 of the Civil Code, these
are recoverable only in the concept of actual damages,  not as moral damages  nor judicial costs.   Hence, to merit
32 33 34

such an award, it is settled that the amount thereof must be proven.   Moreover, such must be specifically prayed for
35

— as was not done in this case—and may not be deemed incorporated within a general prayer for "such other relief
and remedy as this court may deem just and equitable."  Finally, it must be noted that aside from the following, the
36

body of the respondent Court's decision was devoid of any statement regarding attorney's fees:
Plaintiff-appellant was forced to litigate in order that he can claim moral and exemplary damages for
the suffering he encurred [sic]. He is entitled to attorney's fees pursuant to Article 2208 of the Civil
Code. It states:
Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial
costs cannot be recovered except:
1. When exemplary damages are awarded;
2. When the defendant's act or omission has compelled the plaintiff to litigate with third
persons or to incur expenses to protect his interest.
This Court holds that the above does not satisfy the benchmark of "factual, legal and equitable justification"
needed as basis for an award of attorney's fees.  7 In sum, for lack of factual and legal basis, the award of
3

attorney's fees must be deleted.

WHEREFORE, the instant petition is DENIED and the challenged decision of the Court of Appeals in CA-G.R. CV No.
39901 is AFFIRMED subject to the modification as to the award for attorney's fees which is hereby SET ASIDE.
Costs against the petitioner.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
 
G.R. No. 110398 November 7, 1997
NEGROS NAVIGATION CO., INC., petitioner,
vs.
THE COURT OF APPEALS, RAMON MIRANDA, SPS. RICARDO and VIRGINIA DE LA VICTORIA, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals affirming with modification the
Regional Trial Court's award of damages to private respondents for the death of relatives as a result of the sinking of
petitioner's vessel.
In April of 1980, private respondent Ramon Miranda purchased from the Negros Navigation Co., Inc. four special
cabin tickets (#74411, 74412, 74413 and 74414) for his wife, daughter, son and niece who were going to Bacolod City
to attend a family reunion. The tickets were for Voyage No. 457-A of the M/V Don Juan, leaving Manila at 1:00 p.m.
on April 22, 1980.
The ship sailed from the port of Manila on schedule.
At about 10:30 in the evening of April 22, 1980, the Don Juan collided off the Tablas Strait in Mindoro, with the
M/T Tacloban City, an oil tanker owned by the Philippine National Oil Company (PNOC) and the PNOC Shipping and
Transport Corporation (PNOC/STC). As a result, the M/V Don Juan sank. Several of her passengers perished in the
sea tragedy. The bodies of some of the victims were found and brought to shore, but the four members of private
respondents' families were never found.
Private respondents filed a complaint on July 16, 1980 in the Regional Trial Court of Manila, Branch 34, against the
Negros Navigation, the Philippine National Oil Company (PNOC), and the PNOC Shipping and Transport Corporation
(PNOC/STC), seeking damages for the death of Ardita de la Victoria Miranda, 48, Rosario V. Miranda, 19, Ramon V.
Miranda, Jr., 16, and Elfreda de la Victoria, 26.
In its answer, petitioner admitted that private respondents purchased ticket numbers 74411, 74412, 74413 and 74414;
that the ticket numbers were listed in the passenger manifest; and that the Don Juan left Pier 2, North Harbor, Manila
on April 22, 1980 and sank that night after being rammed by the oil tanker M/T  Tacloban City, and that, as a result of
the collision, some of the passengers of the M/V Don Juan died. Petitioner, however, denied that the four relatives of
private respondents actually boarded the vessel as shown by the fact that their bodies were never recovered.
Petitioner further averred that the Don Juan was seaworthy and manned by a full and competent crew, and that the
collision was entirely due to the fault of the crew of the M/T Tacloban City.
On January 20, 1986, the PNOC and petitioner Negros Navigation Co., Inc. entered into a compromise agreement
whereby petitioner assumed full responsibility for the payment and satisfaction of all claims arising out of or in
connection with the collision and releasing the PNOC and the PNOC/STC from any liability to it. The agreement was
subsequently held by the trial court to be binding upon petitioner, PNOC and PNOC/STC. Private respondents did not
join in the agreement.
After trial, the court rendered judgment on February 21, 1991, the dispositive portion of which leads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the plaintiffs, ordering all the
defendants to pay jointly and severally to the plaintiffs damages as follows:
To Ramon Miranda:
P42,025.00 for actual damages;
P152,654.55 as compensatory damages for loss of
earning capacity of his wife;
P90,000.00 as compensatory damages for wrongful
death of three (3) victims;
P300,000.00 as moral damages;
P50,000.00 as exemplary damages, all in the total
amount of P634,679.55; and
P40,000.00 as attorney's fees.
To Spouses Ricardo and Virginia de la Victoria:
P12,000.00 for actual damages;
P158,899.00 as compensatory damages for loss of
earning capacity;
P30,000.00 as compensatory damages for wrongful
death;
P100,000.00 as moral damages;
 P20,000.00 as exemplary damages, all in the total
amount of P320,899.00; and
P15,000.00 as attorney's fees.
On appeal, the Court of Appeals  affirmed the decision of the Regional Trial Court with modification —
1

1. Ordering and sentencing defendants-appellants, jointly and severally, to pay plaintiff-appellee Ramon
Miranda the amount of P23,075.00 as actual damages instead of P42,025.00;
2. Ordering and sentencing defendants-appellants, jointly and severally, to pay plaintiff-appellee Ramon
Miranda the amount of P150,000.00, instead of P90,000.00, as compensatory damages for the death of his
wife and two children;
3. Ordering and sentencing defendants-appellants, jointly and severally, to pay plaintiffs-appellees Dela
Victoria spouses the amount of P50,000.00, instead of P30,000.00, as compensatory damages for the death
of their daughter Elfreda Dela Victoria;
Hence this petition, raising the following issues:
(1) whether the members of private respondents' families were actually passengers of the Don Juan;
(2) whether the ruling in Mecenas v. Court of Appeals,  finding the crew members of petitioner to be grossly negligent
2

in the performance of their duties, is binding in this case;

(3) whether the total loss of the M/V Don Juan extinguished petitioner's liability; and
(4) whether the damages awarded by the appellate court are excessive, unreasonable and unwarranted.
First. The trial court held that the fact that the victims were passengers of the M/V Don Juan was sufficiently proven by
private respondent Ramon Miranda, who testified that he purchased tickets numbered 74411, 74412, 74413, and
74414 at P131.30 each from the Makati office of petitioner for Voyage No. 47-A of the M/V Don Juan, which was
leaving Manila on April 22, 1980. This was corroborated by the passenger manifest (Exh. E) on which the numbers of
the tickets and the names of Ardita Miranda and her children and Elfreda de la Victoria appear.
Petitioner contends that the purchase of the tickets does not necessarily mean that the alleged victims actually took
the trip. Petitioner asserts that it is common knowledge that passengers purchase tickets in advance but do not
actually use them. Hence, private respondent should also prove the presence of the victims on the ship. The
witnesses who affirmed that the victims were on the ship were biased and unreliable.
This contention is without merit. Private respondent Ramon Miranda testified that he personally took his family and his
niece to the vessel on the day of the voyage and stayed with them on the ship until it was time for it to leave. There is
no reason he should claim members of his family to have perished in the accident just to maintain an action. People
do not normally lie about so grave a matter as the loss of dear ones. It would be more difficult for private respondents
to keep the existence of their relatives if indeed they are alive than it is for petitioner to show the contrary. Petitioner's
only proof is that the bodies of the supposed victims were not among those recovered from the site of the mishap. But
so were the bodies of the other passengers reported missing not recovered, as this Court noted in the Mecenas  case. 3

Private respondent Miranda's testimony was corroborated by Edgardo Ramirez. Ramirez was a seminarian and one
of the survivors of the collision. He testified that he saw Mrs. Miranda and Elfreda de la Victoria on the ship and that
he talked with them. He knew Mrs. Miranda who was his teacher in the grade school. He also knew Elfreda who was
his childhood friend and townmate. Ramirez said he was with Mrs. Miranda and her children and niece from 7:00 p.m.
until 10:00 p.m. when the collision happened and that he in fact had dinner with them. Ramirez said he and Elfreda
stayed on the deck after dinner and it was there where they were jolted by the collision of the two vessels. Recounting
the moments after the collision, Ramirez testified that Elfreda ran to fetch Mrs. Miranda. He escorted her to the room
and then tried to go back to the deck when the lights went out. He tried to return to the cabin but was not able to do so
because it was dark and there was a stampede of passengers from the deck.
Petitioner casts doubt on Ramirez' testimony, claiming that Ramirez could not have talked with the victims for about
three hours and not run out of stories to tell, unless Ramirez had a "storehouse" of stories. But what is incredible
about acquaintances thrown together on a long journey staying together for hours on end, in idle conversation
precisely to while the hours away?
Petitioner also points out that it took Ramirez three (3) days before he finally contacted private respondent Ramon
Miranda to tell him about the fate of his family. But it is not improbable that it took Ramirez three days before calling
on private respondent Miranda to tell him about the last hours of Mrs. Miranda and her children and niece, in view of
the confusion in the days following the collision as rescue teams and relatives searched for survivors.
Indeed, given the facts of this case, it is improper for petitioner to even suggest that private respondents' relatives did
not board the ill-fated vessel and perish in the accident simply because their bodies were not recovered.
Second. In finding petitioner guilty of negligence and in failing to exercise the extraordinary diligence required of it in
the carriage of passengers, both the trial court and the appellate court relied on the findings of this Court in Mecenas
v. Intermediate Appellate Court,  which case was brought for the death of other passengers. In that case it was found
4

that although the proximate cause of the mishap was the negligence of the crew of the M/T  Tacloban City, the crew of
the Don Juan was equally negligent as it found that the latter's master, Capt. Rogelio Santisteban, was playing
mahjong at the time of collision, and the officer on watch, Senior Third Mate Rogelio De Vera, admitted that he failed
to call the attention of Santisteban to the imminent danger facing them. This Court found that Capt. Santisteban and
the crew of the M/V Don Juan failed to take steps to prevent the collision or at least delay the sinking of the ship and
supervise the abandoning of the ship.
Petitioner Negros Navigation was found equally negligent in tolerating the playing of mahjong by the ship captain and
other crew members while on board the ship and failing to keep the M/V Don Juan seaworthy so much so that the
ship sank within 10 to 15 minutes of its impact with the M/T Tacloban City.
In addition, the Court found that the Don Juan was overloaded. The Certificate of Inspection, dated August 27, 1979,
issued by the Philippine Coast Guard Commander at Iloilo City stated that the total number of persons allowed on the
ship was 864, of whom 810 are passengers, but there were actually 1,004 on board the vessel when it sank, 140
persons more than the maximum number that could be safely carried by it.
Taking these circumstances together, and the fact that the M/V Don Juan, as the faster and better-equipped vessel,
could have avoided a collision with the PNOC tanker, this Court held that even if the  Tacloban City had been at fault
for failing to observe an internationally-recognized rule of navigation, the Don Juan was guilty of contributory
negligence. Through Justice Feliciano, this Court held:
The grossness of the negligence of the "Don Juan" is underscored when one considers the foregoing
circumstances in the context of the following facts: Firstly, the "Don Juan" was more than twice as fast as the
"Tacloban City." The "Don Juan's" top speed was 17 knots; while that of the "Tacloban City" was 6.3. knots.
Secondly, the "Don Juan" carried the full complement of officers and crew members specified for a passenger
vessel of her class. Thirdly, the "Don Juan" was equipped with radar which was functioning that night.
Fourthly, the "Don Juan's officer on-watch had sighted the "Tacloban City" on his radar screen while the latter
was still four (4) nautical miles away. Visual confirmation of radar contact was established by the "Don Juan"
while the "Tacloban City" was still 2.7 miles away. In the total set of circumstances which existed in the instant
case, the "Don Juan," had it taken seriously its duty of extraordinary diligence, could have easily avoided the
collision with the "Tacloban City." Indeed, the "Don Juan" might well have avoided the collision even if it had
exercised ordinary diligence merely.
It is true that the "Tacloban City" failed to follow Rule 18 of the International Rules of the Road which requires
two (2) power-driven vessels meeting end on or nearly end on each to alter her course to starboard (right) so
that each vessel may pass on the port side (left) of the other. The "Tacloban City," when the two (2) vessels
were only three-tenths (0.3) of a mile apart, turned (for the second time) 15° to port side while the "Don Juan"
veered hard to starboard. . . . [But] "route observance" of the International Rules of the Road will not relieve a
vessel from responsibility if the collision could have been avoided by proper care and skill on her part or even
by a departure from the rules.
In the petition at bar, the "Don Juan" having sighted the "Tacloban City" when it was still a long way off was
negligent in failing to take early preventive action and in allowing the two (2) vessels to come to such close
quarters as to render the collision inevitable when there was no necessity for passing so near to the "Tacloban
City" as to create that hazard or inevitability, for the "Don Juan" could choose its own distance. It is noteworthy
that the "Tacloban City," upon turning hard to port shortly before the moment of collision, signalled its intention
to do so by giving two (2) short blasts with its horn. The "Don Juan" gave no answering horn blast to signal its
own intention and proceeded to turn hard to starboard.
We conclude that Capt. Santisteban and Negros Navigation are properly held liable for gross negligence in
connection with the collision of the "Don Juan" and "Tacloban City" and the sinking of the "Don Juan" leading
to the death of hundreds of passengers. . . . 5

Petitioner criticizes the lower court's reliance on the Mecenas case, arguing that, although this case arose out of the
same incident as that involved in Mecenas, the parties are different and trial was conducted separately. Petitioner
contends that the decision in this case should be based on the allegations and defenses pleaded and evidence
adduced in it or, in short, on the record of this case.
The contention is without merit. What petitioner contends may be true with respect to the merits of the individual
claims against petitioner but not as to the cause of the sinking of its ship on April 22, 1980 and its liability for such
accident, of which there can only be one truth. Otherwise, one would be subscribing to the sophistry: truth on one side
of the Pyrenees, falsehood on the other!
Adherence to the Mecenas case is dictated by this Court's policy of maintaining stability in jurisprudence in
accordance with the legal maxim "stare decisis et non quieta movere" (Follow past precedents and do not disturb
what has been settled.) Where, as in this case, the same questions relating to the same event have been put forward
by parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis
is a bar to any attempt to relitigate the same issue.  In Woulfe v. Associated Realties Corporation,  the Supreme Court
6 7

of New Jersey held that where substantially similar cases to the pending case were presented and applicable
principles declared in prior decisions, the court was bound by the principle of stare decisis. Similarly, in  State ex
rel. Tollinger v. Gill,  it was held that under the doctrine of stare decisis a ruling is final even as to parties who are
8

strangers to the original proceeding and not bound by the judgment under the res judicata doctrine. The Philadelphia
court expressed itself in this wise: "Stare decisis simply declares that, for the sake of certainty, a conclusion reached
in one case should be applied to those which follow, if the facts are substantially the same, even though the parties
may be different."  Thus, in J.M. Tuason v. Mariano, supra, this Court relied on its rulings in other cases involving
9

different parties in sustaining the validity of a land title on the principle of "stare decisis et non quieta movere."
Indeed, the evidence presented in this case was the same as those presented in the Mecenas case, to wit:
Document Mecenas case This case
Decision of Commandant, Exh. 10   Exh. 11-B-NN/X
10

Phil. Coast Guard

in BMI Case No.
415-80 dated 3/26/81
Decision of the Minister Exh. 11   Exh. ZZ
11

of National Defense
dated 3/12/82
Resolution on the Exh. 13   Exh. AAA
12

motion for reconsideration (private

of the decision of the respondents)
Minister of National
defense dated 7/27/84
Certificate of Exh. 1-A   Exh. 19-NN
13

inspection dated
8/27/79
Certificate of Stability Exh. 6-A   Exh. 19-D-NN
14

dated 12/16/76
Nor is it true that the trial court merely based its decision on the Mecenas case. The trial court made its own
independent findings on the basis of the testimonies of witnesses, such as Senior Third Mate Rogelio de Vera, who
incidentally gave substantially the same testimony on petitioner's behalf before the Board of Marine Inquiry. The trial
court agreed with the conclusions of the then Minister of National Defense finding both vessels to be negligent.
Third. The next issue is whether petitioner is liable to pay damages notwithstanding the total loss of its ship. The issue
is not one of first impression. The rule is well-entrenched in our jurisprudence that a shipowner may be held liable for
injuries to passengers notwithstanding the exclusively real and hypothecary nature of maritime law if fault can be
attributed to the shipowner. 15

In Mecenas, this Court found petitioner guilty of negligence in (1) allowing or tolerating the ship captain and crew
members in playing mahjong during the voyage, (2) in failing to maintain the vessel seaworthy and (3) in allowing the
ship to carry more passengers than it was allowed to carry. Petitioner is, therefore, clearly liable for damages to the
full extent.
Fourth. Petitioner contends that, assuming that the Mecenas case applies, private respondents should be allowed to
claim only P43,857.14 each as moral damages because in the Mecenas case, the amount of P307,500.00 was
awarded to the seven children of the Mecenas couple. Under petitioner's formula, Ramon Miranda should receive
P43,857.14, while the De la Victoria spouses should receive P97,714.28.
Here is where the principle of stare decisis does not apply in view of differences in the personal circumstances of the
victims. For that matter, differentiation would be justified even if private respondents had joined the private
respondents in the Mecenas case. The doctrine of stare decisis works as a bar only against issues litigated in a
previous case. Where the issue involved was not raised nor presented to the court and not passed upon by the court
in the previous case, the decision in the previous case is not stare decisis of the question presently presented.    The
16

decision in the Mecenas case relates to damages for which petitioner was liable to the claimants in that case.
In the case at bar, the award of P300,000.00 for moral damages is reasonable considering the grief petitioner Ramon
Miranda suffered as a result of the loss of his entire family. As a matter of fact, three months after the collision, he
developed a heart condition undoubtedly caused by the strain of the loss of his family. The P100,000.00 given to Mr.
and Mrs. de la Victoria is likewise reasonable and should be affirmed.
As for the amount of civil indemnity awarded to private respondents, the appellate court's award of P50,000.00 per
victim should be sustained. The amount of P30,000.00 formerly set in De Lima v. Laguna Tayabas Co.,   Heirs of 17

Amparo delos Santos v. Court of Appeals,   and Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate
18

Court   as benchmark was subsequently increased to P50,000.00 in the case of Sulpicio Lines, Inc. v. Court of
19

Appeals,   which involved the sinking of another interisland ship on October 24, 1988.
20

We now turn to the determination of the earning capacity of the victims. With respect to Ardita Miranda, the trial court
awarded damages computed as follows:  21

In the case of victim Ardita V. Miranda whose age at the time of the accident was 48 years, her life expectancy
was computed to be 21.33 years, and therefore, she could have lived up to almost 70 years old. Her gross
earnings for 21.33 years based on P10,224.00 per annum, would be P218,077.92. Deducting therefrom 30%
as her living expenses, her net earnings would be P152,654.55, to which plaintiff Ramon Miranda is entitled to
compensatory damages for the loss of earning capacity of his wife. In considering 30% as the living expenses
of Ardita Miranda, the Court takes into account the fact that plaintiff and his wife were supporting their
daughter and son who were both college students taking Medicine and Law respectively.
In accordance with the ruling in Villa-Rey Transit, Inc. v. Court of Appeals,   we think the life expectancy of Ardita
22

Miranda was correctly determined to be 21.33 years, or up to age 69. Petitioner contends, however, that Mrs. Miranda
would have retired from her job as a public school teacher at 65, hence her loss of earning capacity should be
reckoned up to 17.33 years only.
The accepted formula for determining life expectancy is 2/3 multiplied by (80 minus the age of the deceased). It may
be that in the Philippines the age of retirement generally is 65 but, in calculating the life expectancy of individuals for
the purpose of determining loss of earning capacity under Art. 2206(1) of the Civil Code, it is assumed that the
deceased would have earned income even after retirement from a particular job. In this case, the trial court took into
account the fact that Mrs. Miranda had a master's degree and a good prospect of becoming principal of the school in
which she was teaching. There was reason to believe that her income would have increased through the years and
she could still earn more after her retirement, e.g., by becoming a consultant, had she not died. The gross earnings
which Mrs. Miranda could reasonably be expected to earn were it not for her untimely death was, therefore, correctly
computed by the trial court to be P218,077.92 (given a gross annual income of P10,224.00 and life expectancy of
21.33 years).
Petitioner contends that from the amount of gross earnings, 60% should be deducted as necessary living expenses,
not merely 30% as the trial court allowed. Petitioner contends that 30% is unrealistic, considering that Mrs. Miranda's
earnings would have been subject to taxes, social security deductions and inflation.
We agree with this contention. In Villa-Rey Transit, Inc. v. Court of Appeals,   the Court allowed a deduction of
23

P1,184.00 for living expenses from the P2,184.00 annual salary of the victim, which is roughly 54.2% thereof. The
deceased was 29 years old and a training assistant in the Bacnotan Cement Industries. In People v. Quilation,   the 24

deceased was a 26-year old laborer earning a daily wage. The court allowed a deduction of P120,000.00 which was
51.3% of his annual gross earnings of P234,000.00. In People v. Teehankee,   the court allowed a deduction of
25

P19,800.00, roughly 42.4% thereof from the deceased's annual salary of P46,659.21. The deceased, Maureen
Hultman, was 17 years old and had just received her first paycheck as a secretary. In the case at bar, we hold that a
deduction of 50% from Mrs. Miranda's gross earnings (P218,077.92) would be reasonable, so that her net earning
capacity should be P109,038.96. There is no basis for supposing that her living expenses constituted a smaller
percentage of her gross income than the living expenses in the decided cases. To hold that she would have used only
a small part of her income for herself, a larger part going to the support of her children would be conjectural and
unreasonable.
As for Elfreda de la Victoria, the trial court found that, at the time of her death, she was 26 years old, a teacher in a
private school in Malolos, Bulacan, earning P6,192.00 per annum. Although a probationary employee, she had
already been working in the school for two years at the time of her death and she had a general efficiency rating of
92.85% and it can be presumed that, if not for her untimely death, she would have become a regular teacher. Hence,
her loss of earning capacity is P111,456.00, computed as follows:
 net earning = life x gross less reasonable
capacity (x) expectancy annual & necessary
income living expenses
(50%)
x = [2(80-26)] x [P6,192.00 - P3,096.00]
————
3
= 36 x 3,096.00
= P111,456.00
On the other hand, the award of actual damages in the amount of P23,075.00 was determined by the Court of
Appeals on the basis receipts submitted by private respondents. This amount is reasonable considering the expenses
incurred by private respondent Miranda in organizing three search teams to look for his family, spending for
transportation in going to places such as Batangas City and Iloilo, where survivors and the bodies of other victims
were found, making long distance calls, erecting a monument in honor of the four victims, spending for obituaries in
the Bulletin Today and for food, masses and novenas.
Petitioner's contention that the expenses for the erection of a monument and other expenses for memorial services for
the victims should be considered included in the indemnity for death awarded to private respondents is without merit.
Indemnity for death is given to compensate for violation of the rights of the deceased, i.e., his right to life and physical
integrity.   On the other hand, damages incidental to or arising out of such death are for pecuniary losses of the
26

beneficiaries of the deceased.

As for the award of attorney's fees, we agree with the Court of Appeals that the amount of P40,000.00 for private
respondent Ramon Miranda and P15,000.00 for the de la Victoria spouses is justified. The appellate court correctly
held:
The Mecenas case cannot be made the basis for determining the award for attorney's fees. The award would
naturally vary or differ in each case. While it is admitted that plaintiff-appellee Ramon Miranda who is himself a
lawyer, represented also plaintiffs-appellees Dela Victoria spouses, we note that separate testimonial
evidence were adduced by plaintiff-appellee Ramon Miranda (TSN, February 26, 1982, p. 6) and plaintiffs-
appellees spouses Dela Victoria (TSN, August 13, 1981, p. 43). Considering the amount of work and effort put
into the case as indicated by the voluminous transcripts of stenographic notes, we find no reason to disturb
the award of P40,000.00 for plaintiff-appellee Ramon Miranda and P15,000.00 for plaintiffs-appellees Dela
Victoria spouses. 
27

The award of exemplary damages should be increased to P300,000.00 for Ramon Miranda and P100,000.00 for the
de la Victoria spouses in accordance with our ruling in the Mecenas case:
Exemplary damages are designed by our civil law to permit the courts to reshape behaviour that is socially
deleterious in its consequence by creating negative incentives or deterrents against such behaviour. In
requiring compliance with the standard of extraordinary diligence, a standard which is in fact that of the
highest possible degree of diligence, from common carriers and in creating a presumption of negligence
against them, the law seeks to compel them to control their employees, to tame their reckless instincts and to
force them to take adequate care of human beings and their property. The Court will take judicial notice of the
dreadful regularity with which grievous maritime disasters occur in our waters with massive loss of life. The
bulk of our population is too poor to afford domestic air transportation. So it is that notwithstanding the
frequent sinking of passenger vessels in our waters, crowds of people continue to travel by sea. This Court is
prepared to use the instruments given to it by the law for securing the ends of law and public policy. One of
those instruments is the institution of exemplary damages; one of those ends, of special importance in an
archipelagic state like the Philippines, is the safe and reliable carriage of people and goods by sea. 28

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with modification and petitioner is ORDERED to
pay private respondents damages as follows:
To private respondent Ramon Miranda:
P23,075.00 for actual damages;
P109,038.96 as compensatory damages for loss of
earning capacity of his wife;
P150,000.00 as compensatory damages for wrongful
death of three (3) victims;
P300,000.00 as moral damages;
P300,000.00 as exemplary damages, all in the total
amount of P882,113.96; and
P40,000.00 as attorney's fees.
To private respondents Spouses Ricardo and Virginia de la Victoria:
P12,000.00 for actual damages;
P111,456.00 as compensatory damages for loss of
earning capacity;
P50,000.00 as compensatory damages for wrongful
death;
P100,000.00 as moral damages;
P100,000.00 as exemplary damages, all in the total
amount of P373,456.00; and
P15,000.00 as attorney's fees.
Petitioners are further ordered to pay costs of suit.
In the event the Philippine National Oil Company and/or the PNOC Shipping and Transport Corporation pay or are
required to pay all or a portion of the amounts adjudged, petitioner Negros Navigation Co., Inc. shall reimburse either
of them such amount or amounts as either may have paid, and in the event of failure of Negros Navigation Co., Inc.,
to make the necessary reimbursement, PNOC and/or PNOC/STC shall be entitled to a writ of execution without need
of filing another action.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-30309 November 25, 1983
CLEMENTE BRIÑAS, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and HONORABLE COURT OF APPEALS, respondents.
Mariano R. Abad for petitioner.
The Solicitor General for respondents.

GUTIERREZ, JR., J.:
This is a petition to review the decision of respondent Court of Appeals, now Intermediate Appellate Court, affirming
the decision of the Court of First Instance of Quezon, Ninth Judicial District, Branch 1, which found the accused
Clemente Briñas guilty of the crime of DOUBLE HOMICIDE THRU RECKLESS IMPRUDENCE prior the deaths of
Martina Bool and Emelita Gesmundo.
The information charged the accused-appellant. and others as follows:
That on or about the 6th day of January, 1957, in the Municipality of Tiaong, Province of Quezon, Philippines, and
within the jurisdiction of this Hon. Court, the said accused Victor Milan, Clemente Briñas and Hermogenes
Buencamino, being then persons in charge of passenger Train No. 522-6 of the Manila Railroad Company, then
running from Tagkawayan to San Pablo City, as engine driver, conductor and assistant conductor, respectively,
wilfully and unlawfully drove and operated the same in a negligent, careless and imprudent manner, without due
regard to existing laws, regulations and ordinances, that although there were passengers on board the passenger
coach, they failed to provide lamps or lights therein, and failed to take the necessary precautions for the safety of
passengers and to prevent accident to persons and damage to property, causing by such negligence, carelessness
and imprudence, that when said passenger Train No. 522-6 was passing the railroad tracks in the Municipality of
Tiaong, Quezon, two of its passengers, Martina Bool, an old woman, and Emelita Gesmundo, a child about three
years of age, fell from the passenger coach of the said train, as a result of which, they were over run, causing their
instantaneous death. "
The facts established by the prosecution and accepted by the respondent court as basis for the decision are
summarized as follows:
The evidence of the prosecution tends to show that in the afternoon of January 6, 1957, Juanito Gesmundo bought a
train ticket at the railroad station in Tagkawayan, Quezon for his 55-year old mother Martina Bool and his 3-year old
daughter Emelita Gesmundo, who were bound for Barrio Lusacan, Tiaong, same province. At about 2:00 p.m., Train
No. 522 left Tagkawayan with the old woman and her granddaughter among the passengers. At Hondagua the train's
complement were relieved, with Victor Millan taking over as engineman, Clemente Briñas as conductor, and
Hermogenes Buencamino as assistant conductor. Upon approaching Barrio Lagalag in Tiaong at about 8:00 p.m. of
that same night, the train slowed down and the conductor shouted 'Lusacan', 'Lusacan'. Thereupon, the old woman
walked towards the left front door facing the direction of Tiaong, carrying the child with one hand and holding her
baggage with the other. When Martina and Emelita were near the door, the train suddenly picked up speed. As a
result the old woman and the child stumbled and they were seen no more. It took three minutes more before the train
stopped at the next barrio, Lusacan, and the victims were not among the passengers who disembarked thereat . têñ.£îhqwâ£

Next morning, the Tiaong police received a report that two corpses were found along the railroad
tracks at Barrio Lagalag. Repairing to the scene to investigate, they found the lifeless body of a female
child, about 2 feet from the railroad tracks, sprawled to the ground with her belly down, the hand
resting on the forehead, and with the back portion of the head crushed. The investigators also found
the corpse of an old woman about 2 feet away from the railroad tracks with the head and both legs
severed and the left hand missing. The head was located farther west between the rails. An arm was
found midway from the body of the child to the body of the old woman. Blood, pieces of scattered brain
and pieces of clothes were at the scene. Later, the bodies were Identified as those of Martina Bool and
Emelita Gesmundo. Among the personal effects found on Martina was a train ticket (Exhibits "B").
On January 7, 1957, the bodies of the deceased were autopsied by Dr. Pastor Huertas, the Municipal Health Officer
of Tiaong. Dr. Huertas testified on the cause of death of the victims as follows: têñ.£îhqwâ£

FISCAL YNGENTE:
Q What could have caused the death of those women?
A Shock.
Q What could have caused that shock?
A Traumatic injury.
 Q What could have caused traumatic injury?
A The running over by the wheel of the train.
Q With those injuries, has a person a chance to survive?
A No chance to survive.
Q What would you say death would come?
A Instantaneous.
Q How about the girl, the young girl about four years old, what could have caused the
death?
A Shock too.
Q What could have caused the shock?
A Compound fracture of the skull and going out of the brain.
Q What could have caused the fracture of the skull and the going out of the brain?
A That is the impact against a steel object. (TSN., pp. 81-82, July 1, 1959)
The Court of First Instance of Quezon convicted defendant-appellant Clemente Briñas for double homicide thru
reckless imprudence but acquitted Hermogenes Buencamino and Victor Millan The dispositive portion of the decision
reads: têñ.£îhqwâ£

WHEREFORE, the court finds the defendant Clemente Briñas guilty beyond doubt of the crime of
double homicide thru reckless imprudence, defined and punished under Article 305 in connection with
Article 249 of the Revised Penal Code, and sentences him to suffer six (6) months and one (1) day
of prision correccional to indemnify the heirs of the deceased Martina Bool and Emelita Gesmundo in
the amounts of P6,000 and P3,000, respectively, with subsidiary imprisonment in case of insolvency
not to exceed one-third of the principal penalty, and to pay the costs.
For lack of sufficient evidence against the defendant Hermogenes Buencamino and on the ground of
reasonable doubt in the case of defendant Victor Millan the court hereby acquits them of the crime
charged in the information and their bail bonds declared cancelled.
As to the responsibility of the Manila Railroad Company in this case, this will be the subject of court
determination in another proceeding.
On appeal, the respondent Court of Appeals affirmed the judgment of the lower court.
During the pendency of the criminal prosecution in the Court of First Instance of Quezon, the heirs of the deceased
victims filed with the same court, a separate civil action for damages against the Manila Railroad Company entitled
"Civil Case No. 5978, Manaleyo Gesmundo, et al., v. Manila Railroad Company". The separate civil action was filed
for the recovery of P30,350.00 from the Manila Railroad Company as damages resulting from the accident.
The accused-appellant alleges that the Court of Appeals made the following errors in its decision:
I  têñ.£îhqwâ£

THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING PETITIONER-APPELLANT

UNDER THE FACTS AS FOUND BY SAID COURT; and
II  têñ.£îhqwâ£

THE HONORABLE COURT OF APPEALS ERRED IN INCLUDING THE PAYMENT OF DEATH

INDEMNITY BY THE PETITIONER- APPELLANT, WITH SUBSIDIARY IMPRISONMENT IN CASE
OF INSOLVENCY, AFTER THE HEIRS OF THE DECEASED HAVE ALREADY COMMENCED A
SEPARATE CIVIL ACTION FOR DAMAGES AGAINST THE RAILROAD COMPANY ARISING FROM
THE SAME MISHAP.
We see no error in the factual findings of the respondent court and in the conclusion drawn from those findings.
It is undisputed that the victims were on board the second coach where the petitioner-appellant was assigned as
conductor and that when the train slackened its speed and the conductor shouted "Lusacan, Lusacan", they stood up
and proceeded to the nearest exit. It is also undisputed that the train unexpectedly resumed its regular speed and as
a result "the old woman and the child stumbled and they were seen no more.
In finding petitioner-appellant negligent, respondent Court  têñ.£îhqwâ£

xxx xxx xxx

The appellant's announcement was premature and erroneous, for it took a full three minutes more
before the next barrio of Lusacan was reached. In making the erroneous and premature
announcement, appellant was negligent. He ought to have known that train passengers invariably
prepare to alight upon notice from the conductor that the destination was reached and that the train
was about to stop. Upon the facts, it was the appellant's negligent act which led the victims to the door.
Said acts virtually exposed the victims to peril, for had not the appellant mistakenly made the
announcement, the victims would be safely ensconced in their seats when the train jerked while
picking up speed, Although it might be argued that the negligent act of the appellant was not the
immediate cause of, or the cause nearest in time to, the injury, for the train jerked before the victims
stumbled, yet in legal contemplation appellant's negligent act was the proximate cause of the injury. As
this Court held in Tucker v. Milan, CA G.R. No. 7059-R, June 3, 1953: 'The proximate cause of the
injury is not necessarily the immediate cause of, or the cause nearest in time to, the injury. It is only
when the causes are independent of each other that the nearest is to be charged with the disaster. So
long as there is a natural, direct and continuous sequence between the negligent act the injury (sic)
that it can reasonably be said that but for the act the injury could not have occurred, such negligent act
is the proximate cause of the injury, and whoever is responsible therefore is liable for damages
resulting therefrom. One who negligently creates a dangerous condition cannot escape liability for the
natural and probable consequences thereof, although the act of a third person, or an act of God for
which he is not responsible intervenes to precipitate the loss.
xxx xxx xxx
It is a matter of common knowledge and experience about common carriers like trains and buses that before reaching
a station or flagstop they slow down and the conductor announces the name of the place. It is also a matter of
common experience that as the train or bus slackens its speed, some passengers usually stand and proceed to the
nearest exit, ready to disembark as the train or bus comes to a full stop. This is especially true of a train because
passengers feel that if the train resumes its run before they are able to disembark, there is no way to stop it as a bus
may be stopped.
It was negligence on the conductor's part to announce the next flag stop when said stop was still a full three minutes
ahead. As the respondent Court of Appeals correctly observed, "the appellant's announcement was premature and
erroneous.
That the announcement was premature and erroneous is shown by the fact that immediately after the train slowed
down, it unexpectedly accelerated to full speed. Petitioner-appellant failed to show any reason why the train suddenly
resumed its regular speed. The announcement was made while the train was still in Barrio Lagalag.
The proximate cause of the death of the victims was the premature and erroneous announcement of petitioner'
appelant Briñas. This announcement prompted the victims to stand and proceed to the nearest exit. Without said
announcement, the victims would have been safely seated in their respective seats when the train jerked as it picked
up speed. The connection between the premature and erroneous announcement of petitioner-appellant and the
deaths of the victims is direct and natural, unbroken by any intervening efficient causes.
Petitioner-appellant also argues that it was negligence per se for Martina Bool to go to the door of the coach while the
train was still in motion and that it was this negligence that was the proximate cause of their deaths.
We have carefully examined the records and we agree with the respondent court that the negligence of petitioner-
appellant in prematurely and erroneously announcing the next flag stop was the proximate cause of the deaths of
Martina Bool and Emelita Gesmundo. Any negligence of the victims was at most contributory and does not exculpate
the accused from criminal liability.
With respect to the second assignment of error, the petitioner argues that after the heirs of Martina Bool and Emelita
Gesmundo had actually commenced the separate civil action for damages in the same trial court during the pendency
of the criminal action, the said court had no more power to include any civil liability in its judgment of conviction.
The source of the obligation sought to be enforced in Civil Case No. 5978 is culpa contractual, not an act or omission
punishable by law. We also note from the appellant's arguments and from the title of the civil case that the party
defendant is the Manila Railroad Company and not petitioner-appellant Briñas Culpa contractual and an act or
omission punishable by law are two distinct sources of obligation.
The petitioner-appellant argues that since the information did not allege the existence of any kind of damages
whatsoever coupled by the fact that no private prosecutors appeared and the prosecution witnesses were not
interrogated on the issue of damages, the trial court erred in awarding death indemnity in its judgment of conviction.
A perusal of the records clearly shows that the complainants in the criminal action for double homicide thru reckless
imprudence did not only reserve their right to file an independent civil action but in fact filed a separate civil action
against the Manila Railroad Company.
The trial court acted within its jurisdiction when, despite the filing with it of the separate civil action against the Manila
Railroad Company, it still awarded death indemnity in the judgment of conviction against the petitioner-appellant.
It is well-settled that when death occurs as a result of the commission of a crime, the following items of damages may
be recovered: (1) an indemnity for the death of the victim; (2) an indemnity for loss of earning capacity of the
deceased; (3) moral damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation, and (6) interest
in proper cases.
The indemnity for loss of earning capacity, moral damages, exemplary damages, attorney's fees, and interests are
recoverable separately from and in addition to the fixed slim of P12,000.00 corresponding to the indemnity for the sole
fact of death. This indemnity arising from the fact of death due to a crime is fixed whereas the others are still subject
to the determination of the court based on the evidence presented. The fact that the witnesses were not interrogated
on the issue of damages is of no moment because the death indemnity fixed for death is separate and distinct from
the other forms of indemnity for damages.
WHEREFORE, the judgment appealed from is modified in that the award for death indemnity is increased to
P12,000.00 for the death of Martina Bool instead of P6,000.00 and P12,000.00 for the death of Emelita Gesmundo
instead of P3,000.00, but deleting the subsidiary imprisonment in case of insolvency imposed by the lower court. The
judgment is AFFIRMED in all other respects.
SO ORDERED. 1äwphï1.ñët
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 73835 January 17, 1989
CHINA AIRLINES, LTD., petitioner,
vs.
INTERMEDIATE APPELLATE COURT and CLAUDIA B. OSORIO, respondent respondents.
Balgos & Perez Law Offices for petitioner.
C.A.S. Sipin, Jr. for private respondent.

FERNAN, C.J.:
This is a petition to review the decision   dated January 21, 1986 of the then Intermediate Appellate Court in AC-G.R.
1

No. 00915 entitled, "Claudia B. Osorio v. China Airlines, Ltd.", as well as the resolution of February 28, 1986 denying
petitioner's motion for reconsideration of said decision.
It is worthwhile noting at the outset that there exists in this case a conflict in the findings of facts of the trial and
appellate courts which made a thorough review of the records of the case imperative. Such exercise disclosed that:
On April 14, 1980, after a four-day delay caused by an engine malfunction, private respondent Claudia B. Osorio
boarded in Manila Flight No. CI-812 of petitioner China Airlines, Ltd., for Taipei. Said flight, as originally scheduled,
was to bring private respondent and nine (9) other passengers to Taipei in time for petitioner airline's Flight No. CI-002
for Los Angeles (LAX). As this schedule had been rendered impossible by the delay, it was agreed, prior to their
departure from Manila that private respondent and the nine (9) other passengers similarly situated would spend the
night in Taipei at petitioner's expense and would be brought the following day to San Francisco (SF), U.S.A., where
they would be furnished an immediate flight connection to LAX.
This arrangement went well until private respondent and her co-passengers arrived in San Francisco, U.S.A. on April
15, 1980 at around 1:31 p.m., SF local time. No instructions having been received regarding them by petitioner's SF
Office due to the delay in the transmission of the telex messages from Manila, private respondent and her co-
passengers were asked to deplane and wait while contact with Manila was being made. This, however, could not be
done immediately because of the time difference between the two (2) places.
Later, when it appeared that private respondent and her co-passengers might have to spend the night in San
Francisco, they asked that they be provided food and overnight accommodations as transit passengers, but were
refused by petitioner's passenger service agent, Dennis Cheng. Apparently irked by this refusal, in addition to the
information that their luggage were not unloaded, private respondent and some of her fellow passengers angrily left
petitioner's SF Office without leaving a contact address. Thus, when word from Manila came at 6:45 p.m. authorizing
the issuance of tickets for LAX to private respondent and her companions, the latter could not be informed thereof.
It was only on the following day, April 16, 1980, after spending the night at the YMCA, paying a fee of $5.00 therefor,
that private respondent learned thru her companions Atty. Laud and Mrs. Sim that her ticket for LAX and luggage
were ready for pick-up any time. Notwithstanding, private respondent preferred to pick up her luggage on April 17,
1980 and fly to LAX on said date with a Western Airlines ticket which she purchased for $56.00. Private respondent
spent the night of April 16, 1980 in the house of Mrs. Sims friend who did not charge anything. Private respondent,
however, bought some groceries for her hostess.
On June 30, 1980, private respondent filed before the then Court of First Instance of Manila a complaint for damages
arising from breach of contract against petitioner airline. After trial, the court a quo rendered judgment   on October 7,
2

1981, absolving petitioner airline from any liability for damages to private respondent, except for the sum of Pl,248.00
representing reimbursement of the $100.00 spent by private respondent as an involuntarily rerouted passenger in San
Francisco, California, U.S.A and the $56.00 paid by her for her SFC-LAX Western Airlines ticket.  3

On appeal, respondent Intermediate Appellate Court reversed the lower court's decision. Finding a palpable breach of
contract of carriage to have been committed by petitioner airlines, the respondent court ordered the latter to pay to
private respondent, in addition to the actual damages imposed by the trial court, moral and exemplary damages in the
amounts of P100,000 and P20,000, respectively, with attorney's fees of P5,000.  4

Its motion for reconsideration having been denied, petitioner airline brought the instant petition for review, alleging
that:
 THE RESPONDENT COURT WRONGLY INCLUDED FROM THE PROVEN FACTS AND, INDEED
WENT AGAINST THE EVIDENCE, WHEN IT FOUND THE PETITIONER AS HAVING COMMITTED
A PALPABLE BREACH OF THE CONTRACT OF CARRIAGE.
'THE RESPONDENT COURT COMMITTED AN ERROR OR LAW CORRECTIBLE BY REVIEW ON
CERTIORARI WHEN IT AWARDED MORAL AND EXEMPLARY DAMAGES IN FAVOR OF THE
PRIVATE RESPONDENT.  5

The issues posed for determination are; did the failur1e of petitioner airline to arrange for private respondent's
immediate flight to Los Angeles constitute a palpable breach of contract of carriage? Was the treatment of private
respondent by petitioner's agent in San Francisco characterized by malice or bad faith?
The records manifest that it was upon petitioner's traffic agent Mrs. Diana Lim's assurance of an immediate flight
connection from San Francisco that private respondent agreed to be re-routed to San Francisco, thus:
Q. What was the condition before leaving Manila, how would these passengers be flown to Taipei?
Since their destination petition is Los Angeles?
A. From Manila to Taipei, they would still take the China Airlines, the night where they were really
booked on. They still stay overnight in Taipei. From Taipei they will connect the next day to San
Francisco. Then from San Francisco we promised that we would give them tickets from San Francisco
to Los Angeles.
Q. That same day?
A. To San Francisco, that would be the next day.
Q. Then what happened next?
A. We told them that before they left.
Q. How about the flights for them from San Francisco to Angeles?
A. It would be immediate connection. As soon as they arrive, they would be given tickets so that they
could catch up on the next available flights. '
Q. What airlines?
A. These was no airlines because they will make the booking.
Q. Who would make the booking?
A. Our reservation sir.
Q. So do you wish to inform this Honorable Court that these ten (10) passengers were informed that
they would be flown to Taipei and from Taipei they will be flown to San Francisco and will be furnished
transportation from San Francisco to Los Angeles?
A. Yes, sir.
Q. All at the expense of China Airlines?
A. Yes, sir. .
xxx xxx xxx
Q. Did they agree to this condition before departing for Taipei?
A. For the Sims they had no objection at all. In fact, they wanted to stay longer in San Francisco.
Q. How about the plaintiff?
A. For Osorio and Laud, at first they did not agree, until I told them that San Francisco would issue
them the new tickets from San Francisco to Los Angeles.
Q. So that when Laud and Osorio were informed by you that they would be furnished tickets from San
Francisco to Los Angeles, did they still continue to object?
A. No more sir.
Q. But were you sure that there would be booking for them for immediate connection?
A. The reservation would do that because from San Francisco to Los Angeles there would be flight
every hour. As soon as they arrive and they. . . if they would not catch up with the very first flight, they
would catch the next one.
Q. So, accommodation of flight from San Francisco to Los Angeles is no problem?
A. No problem because there is flight every hour.  6

Due, however, to the delay in the receipt of the telex messages regarding private respondent's status and the
arrangements to be made for her, the promised immediate flight connection was not reaped. The testimony of Mrs.
Lim on the circumstances surrounding the transmission of the telex messages in question is as follows:
Q. Would you know Mrs. Lim whether the Manila office had been sending Telexes on April 14, 1980
regarding these passengers?
A. Yes, sir.
xxx xxx xxx
Q Now, are there any other Telexes sent by the Manila office in connection with this case by you
personally and by Mr. Austria the Sales Director?
A Here sir, (Witness handing to Atty. de Santos two Telexes)
xxx xxx xxx
Q. These Telexes Mrs. Lim intended for San Francisco, they were duly received?
Court:
A. In other words, they were sent out?
Q. Yes, sir but we have had a lot of experiences wherein the messages would be received late. We
sent out the messages immediately but sometimes the Hongkong link will be down so the messages
would arrive late. It stuck there sir.
A. Did you have any understanding with these passengers including the plaintiff on how they would
subsist in San Francisco should there be a delay in the transmission of messages?
Q. No sir because I did not expect any delay. It was very sudden. I did not expect any delay at all from
San Francisco. I knew all the time they would connect immediately.
A. What I mean is that should the communication sent out from Manila be not received on time in San
Francisco, did you cover that . . . or did you take some steps to answer for that contingency?
 Q. No sir, we did not. We never thought of it that way. We always took it for granted that everything
would be alright. It has never happened before. In other cases where we had cases like this, they were
always on time. We never had this problem where the passengers would be stranded. This is the first
time.
A. There would be a time lag of around two days. Because one night in Taipei. They left Manila April
14?
Q. They arrived Taipei April 14. They arrived San Francisco April 15.
A. So the 24-hour or more time gap would be normally sufficient for all your messages to reach San
Francisco?
Q. Yes, sir.
A. And never before did you experience such a delay?
Q. Yes, sir. 
7

The respondent court considered petitioner airline as wanting in human care and foresight in providing for the care
and safety of its passengers in not having taken other steps to ensure receipt by its San Francisco Office of the
instructions about the re-routed passengers, notwithstanding its previous experience with delayed transmission of
messages. For respondent court, this omission on the part of petitioner, coupled with what respondent court received
as rude and arrogant behavior of petitioner's passenger service agent Dennis Cheng, constituted a palpable breach of
contract of carriage entitling private respondent to an award of actual, moral and exemplary damages as well as
attorney's fees. We are not in complete agreement.
Verily, petitioner airlines committed a breach of contract in failing to secure an immediate flight connection for private
respondent. Under Article 1755 of the Civil Code of the Philippines, petitioner, as a common carrier, is duty bound to
"carry passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious
persons, with due regard for all the circumstances." The reliance of petitioner on the subject telex communications
falls short of the utmost diligence of a very cautious person expected of it, thereby rendering it liable for its failure to
abide by the promised immediate connection. 8

Be that as it may, we, however, find that the breach of contract committed by petitioner was not attended by gross
negligence, recklessness or wanton disregard of the rights of private respondent as a passenger. Telex was the
established mode of communication between petitioner's Manila and San Francisco offices. Contact by telephone was
not a practice due to the time difference between the two places. Thus, while petitioner's Manila office was aware of
the possibility of transmission delay, it bad to avail itself of this mode of communication. For this course of action, we
do not find petitioner to have acted wantonly or recklessly. Considering the gap of more than 24 hours between the
time the telex messages were sent out and private respondent's expected arrival at San Francisco, it was not
unreasonable for petitioner to expect that this time gap would cover whatever delay might be encountered at the
Hongkong Link.   Thus, while petitioner may have been remiss in its total reliance upon the telex communications and
9

therefore considered negligent in view of the degree of diligence required of it as a common carrier, such negligence
cannot under the obtaining circumstances be said to be so gross as to amount to bad faith.
As regards petitioners passenger service agent Dennis Cheng's treatment of private respondent, we share the trial
court's observation, thus:
Neither is the court impressed with plaintiffs (private respondent) allegation that she was ill-treated by
defendant's (petitioner) personnel at the San Francisco airport area. Her self-serving declaration on
this score does not suffice to contradict the straightforward and detailed deposition of Dennis Cheng
(see Exhs. 10 to 10-1), let along the well-known custom and policy of Chinese businessmen and
employees of being courteous and attentive to customers... 10

The respondent appellate court chose to believe private respondent's allegation of rudeness and arrogance over
Dennis Cheng's categorical denial contained in his deposition   on the ground that said deposition is hearsay. This is
11

an error on respondent court's part. The deposition was taken in accordance with the Rules of Court and is admissible
under the Rules of Evidence. It is a material and vital evidence that the appellate court had overlooked, nay, ignored;
a factor which calls for the Court's review powers and which excludes the case from the general rule that findings of
facts of the Court of Appeals are binding on this court.
We are convinced that petitioner's personnel were not motivated by ill will or malice in their dealings with private
respondent. Their refusal to accede to her demands for a flight connection to Los Angeles and/or food and hotel
accommodations was due primarily to lack of information or knowledge upon which to act upon and not from a
deliberate intent to ignore or disregard private respondent's rights as a passenger. They cannot be faulted for wanting
to verify with Manila private respondent's status before acting upon her request as tickets for Los Angeles cannot be
used in going to San Francisco, and possession of a ticket with Los Angeles as destination was not an indication that
one was a transit or an involuntarily re-routed passenger.
Contact thru telephone with Manila could not immediately be made because of the time difference and private
respondent was accordingly advised that information from Manila could be expected at around 6:30 p.m., the time that
the Manila Office would have begun its office hours.   This repeated advise, notwithstanding, private respondent left
12

the airport without leaving a contact address. In this sense, it was private respondent herself who rendered it
impossible for petitioner airlines to perform its obligation of bringing her to Los Angeles as contracted for.
The breach of contract under consideration having been incurred in good faith, petitioner airlines is liable for damages
which are the natural and probable consequences of said breach and which the parties have foreseen at the time the
obligation was constituted.  These damages consist of the actual damages awarded by the trial court to private
13

respondent.
With respect to moral damages, the rule is that the same are recoverable in a damage suit predicated upon a breach
of contract of carriage only where [1] the mishap results in the death of a passenger   and [2] it is proved that the
14

carrier was guilty of fraud or bad faith, even if death does not result.   As the present case does not fall under either of
15

the cited instances, the award of moral damages should be, as it is hereby disallowed.
The award of exemplary damages must likewise be deleted, as it has not been shown that petitioner, in committing
the breach of contract of carriage, acted in a wanton, fraudulent, reckless, oppressive or malevolent manner.  16
The award of attorney's fees is justified under Article 2208(2) of the Civil Code which states that the same may be
recovered when the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur
expenses to protect his interest. The amount of P6,000.00 awarded by respondent court should be increased to
P10,000.00 considering that the case has reached this Tribunal.
WHEREFORE, the decision under review is hereby MODIFIED in that the award of moral and exemplary damages to
private respondent Claudia B. Osorio is eliminated and the attorney's fees is increased to P10,000.00. No
pronouncement as to costs.
SO ORDERED.