Republic of the Philippines Phoenix and McGee appealed to the Court of Appeals.
d McGee appealed to the Court of Appeals. The appellate court reversed and set aside 10 the
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 162467               May 8, 2009
MINDANAO TERMINAL AND BROKERAGE SERVICE, INC. Petitioner,
vs.
PHOENIX ASSURANCE COMPANY OF NEW YORK/MCGEE & CO., INC., Respondent.
DECISION
TINGA, J.:
Before us is a petition for review on certiorari 1 under Rule 45 of the 1997 Rules of Civil Procedure of the
29 October 20032 Decision of the Court of Appeals and the 26 February 2004 Resolution 3 of the same
court denying petitioner’s motion for reconsideration.
The facts of the case are not disputed.
Del Monte Philippines, Inc. (Del Monte) contracted petitioner Mindanao Terminal and Brokerage Service,
Inc. (Mindanao Terminal), a stevedoring company, to load and stow a shipment of 146,288 cartons of
fresh green Philippine bananas and 15,202 cartons of fresh pineapples belonging to Del Monte Fresh
Produce International, Inc. (Del Monte Produce) into the cargo hold of the vessel M/V Mistrau. The vessel
was docked at the port of Davao City and the goods were to be transported by it to the port of Inchon,
Korea in favor of consignee Taegu Industries, Inc. Del Monte Produce insured the shipment under an
"open cargo policy" with private respondent Phoenix Assurance Company of New York (Phoenix), a non-
life insurance company, and private respondent McGee & Co. Inc. (McGee), the underwriting
manager/agent of Phoenix.4
Mindanao Terminal loaded and stowed the cargoes aboard the M/V Mistrau. The vessel set sail from the
port of Davao City and arrived at the port of Inchon, Korea. It was then discovered upon discharge that
some of the cargo was in bad condition. The Marine Cargo Damage Surveyor of Incok Loss and Average
Adjuster of Korea, through its representative Byeong Yong Ahn (Byeong), surveyed the extent of the
damage of the shipment. In a survey report, it was stated that 16,069 cartons of the banana shipment
and 2,185 cartons of the pineapple shipment were so damaged that they no longer had commercial
value.5
Del Monte Produce filed a claim under the open cargo policy for the damages to its shipment. McGee’s
Marine Claims Insurance Adjuster evaluated the claim and recommended that payment in the amount of
$210,266.43 be made. A check for the recommended amount was sent to Del Monte Produce; the latter
then issued a subrogation receipt6 to Phoenix and McGee.
Phoenix and McGee instituted an action for damages7 against Mindanao Terminal in the Regional Trial
Court (RTC) of Davao City, Branch 12. After trial, the RTC,8 in a decision dated 20 October 1999, held that
the only participation of Mindanao Terminal was to load the cargoes on board the M/V Mistrau under the
direction and supervision of the ship’s officers, who would not have accepted the cargoes on board the
vessel and signed the foreman’s report unless they were properly arranged and tightly secured to
withstand voyage across the open seas. Accordingly, Mindanao Terminal cannot be held liable for
whatever happened to the cargoes after it had loaded and stowed them. Moreover, citing the survey
report, it was found by the RTC that the cargoes were damaged on account of a typhoon which M/V
Mistrau had encountered during the voyage. It was further held that Phoenix and McGee had no cause of
action against Mindanao Terminal because the latter, whose services were contracted by Del Monte, a
distinct corporation from Del Monte Produce, had no contract with the assured Del Monte Produce. The
RTC dismissed the complaint and awarded the counterclaim of Mindanao Terminal in the amount of
₱83,945.80 as actual damages and ₱100,000.00 as attorney’s fees. 9 The actual damages were awarded as
reimbursement for the expenses incurred by Mindanao Terminal’s lawyer in attending the hearings in the
case wherein he had to travel all the way from Metro Manila to Davao City.
decision of the RTC in its 29 October 2003 decision. The same court ordered Mindanao Terminal to pay
Phoenix and McGee "the total amount of $210,265.45 plus legal interest from the filing of the complaint
until fully paid and attorney’s fees of 20% of the claim." 11 It sustained Phoenix’s and McGee’s argument
that the damage in the cargoes was the result of improper stowage by Mindanao Terminal. It imposed on
Mindanao Terminal, as the stevedore of the cargo, the duty to exercise extraordinary diligence in loading
and stowing the cargoes. It further held that even with the absence of a contractual relationship between
Mindanao Terminal and Del Monte Produce, the cause of action of Phoenix and McGee could be based on
quasi-delict under Article 2176 of the Civil Code.12
Mindanao Terminal filed a motion for reconsideration, 13 which the Court of Appeals denied in its 26
February 200414 resolution. Hence, the present petition for review.
Mindanao Terminal raises two issues in the case at bar, namely: whether it was careless and
negligent in the loading and stowage of the cargoes onboard M/V Mistrau making it liable for damages;
and, whether Phoenix and McGee has a cause of action against Mindanao Terminal under Article 2176 of
the Civil Code on quasi-delict. To resolve the petition, three questions have to be answered: first, whether
Phoenix and McGee have a cause of action against Mindanao Terminal; second, whether Mindanao
Terminal, as a stevedoring company, is under obligation to observe the same extraordinary degree of
diligence in the conduct of its business as required by law for common carriers 15 and warehousemen;16 and
third, whether Mindanao Terminal observed the degree of diligence required by law of a stevedoring
company.
We agree with the Court of Appeals that the complaint filed by Phoenix and McGee against Mindanao
Terminal, from which the present case has arisen, states a cause of action. The present action is based on
quasi-delict, arising from the negligent and careless loading and stowing of the cargoes belonging to Del
Monte Produce. Even assuming that both Phoenix and McGee have only been subrogated in the rights of
Del Monte Produce, who is not a party to the contract of service between Mindanao Terminal and Del
Monte, still the insurance carriers may have a cause of action in light of the Court’s consistent ruling that
the act that breaks the contract may be also a tort.17 In fine, a liability for tort may arise even under a
contract, where tort is that which breaches the contract 18 . In the present case, Phoenix and McGee are
not suing for damages for injuries arising from the breach of the contract of service but from the alleged
negligent manner by which Mindanao Terminal handled the cargoes belonging to Del Monte Produce.
Despite the absence of contractual relationship between Del Monte Produce and Mindanao Terminal, the
allegation of negligence on the part of the defendant should be sufficient to establish a cause of action
arising from quasi-delict.19
The resolution of the two remaining issues is determinative of the ultimate result of this case.
Article 1173 of the Civil Code is very clear that if the law or contract does not state the degree of
diligence which is to be observed in the performance of an obligation then that which is expected of a
good father of a family or ordinary diligence shall be required. Mindanao Terminal, a stevedoring company
which was charged with the loading and stowing the cargoes of Del Monte Produce aboard  M/V Mistrau,
had acted merely as a labor provider in the case at bar. There is no specific provision of law that imposes
a higher degree of diligence than ordinary diligence for a stevedoring company or one who is charged only
with the loading and stowing of cargoes. It was neither alleged nor proven by Phoenix and McGee that
Mindanao Terminal was bound by contractual stipulation to observe a higher degree of diligence than that
required of a good father of a family. We therefore conclude that following Article 1173, Mindanao
Terminal was required to observe ordinary diligence only in loading and stowing the cargoes of Del Monte
Produce aboard M/V Mistrau.
imposing a higher degree of diligence,21 on Mindanao Terminal in loading and stowing the cargoes. The
case of Summa Insurance Corporation v. CA, which involved the issue of whether an arrastre operator
is legally liable for the loss of a shipment in its custody and the extent of its liability, is inapplicable to the
factual circumstances of the case at bar. Therein, a vessel owned by the National Galleon Shipping
Corporation (NGSC) arrived at Pier 3, South Harbor, Manila, carrying a shipment consigned to the order of
Caterpillar Far East Ltd. with Semirara Coal Corporation (Semirara) as "notify party." The shipment,
including a bundle of PC 8 U blades, was discharged from the vessel to the custody of the private
respondent, the exclusive arrastre operator at the South Harbor. Accordingly, three good-order cargo
receipts were issued by NGSC, duly signed by the ship's checker and a representative of private
respondent. When Semirara inspected the shipment at house, it discovered that the bundle of PC8U
blades was missing. From those facts, the Court observed:
x x x The relationship therefore between the consignee and the arrastre operator must be examined.
This relationship is much akin to that existing between the consignee or owner of shipped goods and the
common carrier, or that between a depositor and a warehouseman [22 ]. In the performance of its
obligations, an arrastre operator should observe the same degree of diligence as that required of
a common carrier and a warehouseman as enunciated under Article 1733 of the Civil Code and
Section 3(b) of the Warehouse Receipts Law, respectively.  Being the custodian of the goods
discharged from a vessel, an arrastre operator's duty is to take good care of the goods and to
turn them over to the party entitled to their possession . (Emphasis supplied)23
There is a distinction between an arrastre and a stevedore.24 ARRASTRE, a Spanish word which
refers to hauling of cargo, comprehends the handling of cargo on the wharf or between the establishment
of the consignee or shipper and the ship's tackle. The responsibility of the arrastre operator lasts until the
delivery of the cargo to the consignee. The service is usually performed by longshoremen. On the other
hand, STEVEDORING refers to the handling of the cargo in the holds of the vessel or between the ship's
tackle and the holds of the vessel. The responsibility of the stevedore ends upon the loading and stowing
of the cargo in the vessel.
It is not disputed that Mindanao Terminal was performing purely stevedoring function while the private
respondent in the Summa case was performing arrastre function. In the present case, Mindanao Terminal,
as a stevedore, was only charged with the loading and stowing of the cargoes from the pier to the ship’s
cargo hold; it was never the custodian of the shipment of Del Monte Produce. A stevedore is not a
common carrier for it does not transport goods or passengers; it is not akin to a warehouseman for it
does not store goods for profit. The loading and stowing of cargoes would not have a far reaching public
ramification as that of a common carrier and a warehouseman; the public is adequately protected by our
laws on contract and on quasi-delict. The public policy considerations in legally imposing upon a common
carrier or a warehouseman a higher degree of diligence is not present in a stevedoring outfit which mainly
provides labor in loading and stowing of cargoes for its clients.
In the third issue, Phoenix and McGee failed to prove by preponderance of evidence 25 that Mindanao
Terminal had acted negligently. Where the evidence on an issue of fact is in equipoise or there is any
doubt on which side the evidence preponderates the party having the burden of proof fails upon that
issue. That is to say, if the evidence touching a disputed fact is equally balanced, or if it does not produce
a just, rational belief of its existence, or if it leaves the mind in a state of perplexity, the party holding the
affirmative as to such fact must fail.261avvphi1
We adopt the findings27 of the RTC,28 which are not disputed by Phoenix and McGee. The Court of
Appeals did not make any new findings of fact when it reversed the decision of the trial court. The only
participation of Mindanao Terminal was to load the cargoes on board  M/V Mistrau.29 It was not disputed by
Phoenix and McGee that the materials, such as ropes, pallets, and cardboards, used in lashing and rigging
the cargoes were all provided by M/V Mistrau and these materials meets industry standard.30
It was further established that Mindanao Terminal loaded and stowed the cargoes of Del Monte Produce
aboard the M/V Mistrau in accordance with the stowage plan, a guide for the area assignments of the
goods in the vessel’s hold, prepared by Del Monte Produce and the officers of  M/V Mistrau.31 The loading
and stowing was done under the direction and supervision of the ship officers. The vessel’s
officer would order the closing of the hatches only if the loading was done correctly after a final
inspection.32 The said ship officers would not have accepted the cargoes on board the vessel if they were
not properly arranged and tightly secured to withstand the voyage in open seas. They would order the
stevedore to rectify any error in its loading and stowing. A foreman’s report, as proof of work done on
board the vessel, was prepared by the checkers of Mindanao Terminal and concurred in by the Chief
Officer of M/V Mistrau after they were satisfied that the cargoes were properly loaded. 33
Phoenix and McGee relied heavily on the deposition of Byeong Yong Ahn 34 and on the survey report35 of
the damage to the cargoes. Byeong, whose testimony was refreshed by the survey report, 36 found that the
cause of the damage was improper stowage 37 due to the manner the cargoes were arranged such that
there were no spaces between cartons, the use of cardboards as support system, and the use of small
rope to tie the cartons together but not by the negligent conduct of Mindanao Terminal in loading and
stowing the cargoes. As admitted by Phoenix and McGee in their Comment38 before us, the latter is merely
a stevedoring company which was tasked by Del Monte to load and stow the shipments of fresh banana
and pineapple of Del Monte Produce aboard the M/V Mistrau. How and where it should load and stow a
shipment in a vessel is wholly dependent on the shipper and the officers of the vessel. In other words,
the work of the stevedore was under the supervision of the shipper and officers of the vessel.
Even the materials used for stowage, such as ropes, pallets, and cardboards, are provided for by the
vessel. Even the survey report found that it was because of the boisterous stormy weather due to the
typhoon Seth, as encountered by M/V Mistrau during its voyage, which caused the shipments in the cargo
hold to collapse, shift and bruise in extensive extent. 39 Even the deposition of Byeong was not supported
by the conclusion in the survey report that:
CAUSE OF DAMAGE
xxx
From the above facts and our survey results, we are of the opinion that damage occurred aboard the
carrying vessel during sea transit, being caused by ship’s heavy rolling and pitching under boisterous
weather while proceeding from 1600 hrs on 7th October to 0700 hrs on 12th October, 1994 as described
in the sea protest.40
As it is clear that Mindanao Terminal had duly exercised the required degree of diligence in loading and
stowing the cargoes, which is the ordinary diligence of a good father of a family, the grant of the petition
is in order.
However, the Court finds no basis for the award of attorney’s fees in favor of petitioner.lawphil.net None
of the circumstances enumerated in Article 2208 of the Civil Code exists. The present case is clearly not
an unfounded civil action against the plaintiff as there is no showing that it was instituted for the mere
purpose of vexation or injury. It is not sound public policy to set a premium to the right to litigate where
such right is exercised in good faith, even if erroneously. 41 Likewise, the RTC erred in awarding
₱83,945.80 actual damages to Mindanao Terminal. Although actual expenses were incurred by Mindanao
Terminal in relation to the trial of this case in Davao City, the lawyer of Mindanao Terminal incurred
expenses for plane fare, hotel accommodations and food, as well as other miscellaneous expenses, as he
attended the trials coming all the way from Manila. But there is no showing that Phoenix and McGee made
a false claim against Mindanao Terminal resulting in the protracted trial of the case necessitating the
incurrence of expenditures.42
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G.R. CV No. 66121 is
SET ASIDE and the decision of the Regional Trial Court of Davao City, Branch 12 in Civil Case No.
25,311.97 is hereby REINSTATED MINUS the awards of ₱100,000.00 as attorney’s fees and ₱83,945.80
as actual damages.
SO ORDERED.
DANTE O. TINGAAssociate Justice
<p
WE CONCUR:
CONCHITA CARPIO MORALES*
Associate Justice
Acting Chairperson
PRESBITERO J. VELASCO, JR. TERESITA LEONARDO DE CASTRO**
Associate Justice Associate Justice
ARTURO D. BRION
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
CONCHITA CARPIO MORALES  Id. at 31-33.
12

Associate Justice
Acting Chairperson, Second Division
 CA rollo, pp. 94-104.
13

CERTIFICATION
 Rollo, p. 36.
14

Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairperson’s Attestation,
it is hereby certified that the conclusions in the above Decision had been reached in consultation before  Civil Code, Art. 1733.
15

the case was assigned to the writer of the opinion of the Court’s Division.
 Sec. 3(b), Act 2137, Warehouse Receipt Law.
16

REYNATO S. PUNO
Chief Justice  Air France v. Carrascoso, 18 SCRA 155, 168 (1966). Singson v. Bank of the Philippine Islands,
17

132 Phil. 597, 600 (1968); Mr. & Mrs. Fabre, Jr . v. Court of Appeals, 328 Phil. 775, 785 (1996).

 PSBA v. Court of Appeals, G.R. No. 84698, 4 February 1992, 205 SCRA 729, 734.
18

Footnotes
19
 CIVIL CODE. Art. 2176. Whoever by act or omission causes damage to another, there
1
 Rollo, pp. 3-25. being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the parties, is called a quasi-
delict and is governed by the provisions of this Chapter. (Emphasis supplied)
* Acting Chairperson as replacement of Associate Justice Leonardo Quisumbing who is on official
leave per Special Order No. 618.
 323 Phil. 214 (1996).
20

** Additional member of the Special Second Division per Special Order No. 619.
 Rollo, p. 32.
21

2
 Id. at 29-34. Penned by Associate Justice Danilo B. Pine and concurred by Associate Justices
Cancio C. Garcia and Renato C. Dacudao. The dispositive portion reads as follows:  Malayan Insurance Co. Inc. v. Manila Port Service, 138 Phil. 69 (1969).
22

WHEREFORE, premises considered, the judgment appealed from is  Supra note at 222-223.
23

hereby REVERSED and SET ASIDE. Mindanao Terminal Brokerage Services, Inc. is

ordered to pay the plaintiff-appellants the total amount of $210,265.45 plus legal  See Compaňia Maritima v. Allied Free Workers Union, 167 Phil. 381, 385 (1977).
24

interest from the filing of the complaint until fully paid and attorney’s fees of 20% of
the claim.
 See Republic of the Philippines v. Orfinada Sr.,  G.R. No. 141145, November 12, 2004, 442
25

SCRA 342, 352 citing Go v. Court of Appeals, G.R. No. 112550, February 5, 2001 citing Reyes v.
Costs against defendant-appellee. Court of Appeals, 258 SCRA 651 (1996).

SO ORDERED.  Francisco, Ricardo, Evidence, 3rd (1996), p. 555. Citing Howes v. Brown, 75 Ala. 385; Evans
26

v. Winston, 74 Ala. 349; Marlowe v. Benagh, 52 Ala. 112; Brandon v. Cabiness, 10 Ala.

3
 Id. at 36. 155; Delaware Coach v. Savage, 81 Supp. 293.

4
 Records, pp. 234-310.
27
 This Court is not a trier of facts. Furthermore, well settled is the doctrine that "the findings of
fact by the trial court are accorded great respect by appellate courts and should not be
disturbed on appeal unless the trial court has overlooked, ignored, or disregarded some fact or
5
 Rollo, p. 30. circumstances of sufficient weight or significance which, if considered, would alter the situation."
The facts of the case, as stated by the trial court, were adopted by the Court of Appeals. And a
conscientious sifting of the records fails to bring to light any fact or circumstance militative
6
 Records, p. 350. against the correctness of the said findings of the trial court and the Court of Appeals.
See Home Development Mutual Fund v.  CA, 351 Phil. 858, 859-860 (1998).
7
 Id. at 1-6.
 Rollo, pp. 38-44.
28

8
 Rollo, pp. 38-44. Penned by Judge Paul T. Arcangel.
 Id. at 42.
29

9
 Id. at 44.
 Id. at 16.
30

10
 Id. at 33-34.
 TSN, 6 July 1999, p. 5.
31

11
 Id. at 36.
  Id. at 9-10.
32

 Id. at 5-6.
33

 Records, pp. 89-96.

34

 Id. at 99-113.
35

 Id. at 93.
36

 Id. at 96.
37

 Rollo, pp. 47-49.

38

 Records, pp. 105.

39

 Id. at 112.
40

 See Ramos v. Ramos, 158 Phil. 935, 960 (1974); Barreto v. Arevalo, 99 Phil. 771, 779
41

(1956); Mirasol v. Judge De la Cruz, 173 Phil. 518 (1978).

 See Uy v. Court of Appeals, 420 Phil. 408 (2001).

42

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