4 Dec 2021 Transpo

7. Northwest Airlines vs. Cuenca

● How about the issues on the damages?

- Since the offense had been committed with full knowledge of the fact that
Cuenca was an official representative of the Republic of the Philippines, the
sum of P20,000 awarded as damages may well be considered as merely
nominal. At any rate, considering that petitioner's agent had acted in a
wanton, reckless and oppressive manner, said award may also be considered
as one for exemplary damages.

8. Alitalia vs. IAC

● What are the liabilities under the Warsaw Convention?

● When do these liabilities apply?
● With regards to willful or neglect, how does Warsaw convention apply? -
no. Civil Code daw
● So what does the Warsaw provides, regarding the excludes or limits the
liability, or does it deny the liability?
● How about the damages, or attorney’s fees awarded? YES
● How about nominal damages? What happened in the case? awarded
● Humiliation? Is it equivalent to moral damages?
● What is a nominal damage?

9. Pan American World Airways vs. IAC

● Is the attorney's fee granted? no?

10. China Airlines vs. Daniel Chiok

11. Santos III vs. Northwest Airlines

● When is the Warsaw Convention applicable as regards other

countries/”international” flight etc?
● Does the Philippine have jurisdiction in this case? NO.
● Does the Northwest have a domicile in the Philippines? NO. 4 options
etc.
● What are the 4 actions that may be filed: (1) Court of domicile of carrier,(2)
Principal business; (3) Business/Contract has been made; (4) Place of the
destination
12. United Airlines vs. Willie Uy
● What did the court rule in this case?
● What about the prescriptive period? Under the Civil Code - Torts?

MODULE 8

Difference between Culpa Contractual, Delict, Aquilana (Quasi Delict)

 Point of distinction
CULPA CULPA AQUILANA
CONTRACTUAL

Source of obligation Contract Quasi-delict

Liability of No liability there Solidarily liable with

Employee being no privity of the employer
contract

Availability of Due diligence in the Due diligence in the

Defense selection and selection and
supervision of the supervision of the
employee is NOT a employee is
defense DEFENSE under
Article 2180

In what capacity Liable as a Liable as an

liable contracting party employer

Culpa Contractual -Source? Is the employee liable?

- Contract of carriage; Breach of contract
- Employee not liable under culpa contractual (not sure)
- Only the carrier is primarily liable and not the employee- driver, because there
is no privity of contract between the driver and the passenger.

Is Due diligence a defense in culpa contractual? Art 1759 CC

- No. No defense of due diligence in the selection and supervision of employees

In quasi-delict, is due diligence a matter of defense? What does the civil code
provides? Art 2180 DOAGFOAF
- Yes
- Defense of due diligence in the selection and supervision of employees is available

How about the employee? What is the liability in case of quasi-delict?

 ● For employees, civil liability may be based on quasi-delict as well as on criminal
liability under Art. 100
● The carrier and employee are solidarily liable as joint tortfeasors.

What about culpa delictual? Art. 100 of RPC provides?

- The driver is primarily liable. The carrier is subsidiarily liable only if the driver is
convicted and declared insolvent. Basis: Art. 100, RPC

Can there be more than 1 cause of action? - bsta ung bawal double recovery
● It is allowed to allege alternative causes of action in the complaint and join as many
parties as liable as long as the plaintiff does not recover twice for the same injury

NOTICE OF CLAIM AND PRESCRIPTIVE PERIOD

Can you discuss prescriptive period and conditions precedent in overland

transportation of goods as in coastwise shipping?
- An action for damages is barred if the goods arrived in damaged condition and no
claim is filed by the shipper within the following period:
a. Immediately if damage is apparent.
b. Within 24 hours from delivery if damage is not apparent.

The filing of a claim with the carrier within the period prescribed under Article 366 of the
Code of Commerce is a condition precedent for an action against the carrier in
overland transportation. Non-filing of the claim bard recovery.

What if the damage is apparent in the claim?

International Carriage of Goods by Sea
A claim must be filed with the carrier within the following period:
1. if the damage is apparent, the claim should be filed immediately upon
discharge of the goods; or
2. within 3 days from delivery, if damage is not apparent.

Is the filing of claim a condition precedent? No if INTERNATIONAL CARRIAGE OF

GOODS BY SEA

How about the period?

- The action for damages under the COGSA must be filed within a period of 1 year
from the discharge of the goods. In other words, the prescriptive period
commences from discharge.

Filing of claim is not condition precedent. Thus, regardless of whether the notice of
loss or damage has been given, the shipper can still bring an action to recover said
loss or damage within one year after the delivery of the goods or the date when the
goods should have been delivered
When to file in court? 1 year when?
● within one year after delivery of the goods or the date when the goods should have
been delivered
● The action for damages under the COGSA must be filed within a period of 1 year
from the discharge of the goods. In other words, the prescriptive period commences
from discharge.

Does the delivery made to consignee? Or the arrastre?

- The period does not begin to run until the consignee has received possession of the
merchandise that he may exercise over it in the ordinary control pertinent to
ownership.
-
How about the stipulation reducing to 1 year period, example 6 months, is it null and void?
- Within 1 year after the delivery of the goods or the date when the goods should
have been delivered.

Does the prescriptive period apply to collision? YES

This rule applies in collision cases. The one (1) year period starts not from the date of
the collision but when the goods should have been delivered, had the cargoes
been saved.

Does the 1 year period be suspended if there is a judicial demand? Or does it

suspend by stipulation, in writing?
● No. Written extrajudicial demand by the creditor does not toll the running of the one
year prescriptive period under the COGSA.

● The period is not suspended by extrajudicial demand. The period does not apply to
conversion or misdelivery. The one-year period provided for in Section 3 (6) of
COGSA refers to loss of the cargo and not to misdelivery.

How about insurers on subrogation? YES

The insurer who is exercising its right of subrogation is also bound by the one (1)
year prescriptive period.

How about the insurance proceeds? NO

However, it does not apply to the claim against the insurer for the insurance
proceeds. The claim against the insurer is based on a contract that expires in
ten (10) years.

Does the prescriptive period apply In cases of damages or delay in delivery? Under
the COGSA? Civil Code?
- NO. damages arising from delay or late delivery is not the damage or loss
contemplated under the COGSA. The goods are not actually lost or damaged. The
applicable period is 10 years

RECOVERABLE DAMAGES
Damages – is the pecuniary compensation, recompense, or satisfaction for an injury
sustained, or as otherwise expressed, the pecuniary consequences which the law imposes
for the breach of some duty or violation of some rights.

What are the recoverable damages? Kinds of Actual Damages?

Damages may be: MENTAL

1. Moral
2. Exemplary
3. Nominal
4. Temperate
5. Actual
6. Liquidated

Article 2216 provides that no proof of pecuniary loss is necessary in order that moral,
nominal, temperate, liquidated or exemplary damages may be adjudicated. The
assessment of such damages, except liquidated ones, is left to the discretion of the
court, according to the circumstances of each case. However, proof of pecuniary loss
is necessary if actual or compensatory damages are being claimed.

- 2 Kinds of actual and compensatory damages:

1. the loss of what a person already possesses (daňo emergente);
2. the failure to receive as a benefit that would have pertained to him (lucro cesante).

How do we compute earning capacity?

Net Earning Capacity = Life Expectancy x (Gross Annual Income less Necessary Living
Expenses
★ Life Expectancy Formula - ⅔ x 80 - age at death
★ Net Earnings
● based on the gross income of the victim minus the necessary and incidental
living expenses that the victim would have incurred if he were alive
● Amount of living expenses must also be established to determine net earnings -
fixed at 50 % of the gross income in the absence of proof of the amount of
living expenses to be deducted from the gross income
● Applicability of the Formula: when the breach of the carrier resulted in the plaintiff’s
permanent incapacity

When does damages recoverable?

Damages may be recovered: Art. 2205 (Civil Code)

1) For loss or impairment of earning capacity in cases of temporary or permanent
personal injury;
2) For injury to the plaintiff’s business standing or commercial credit.

Basta sa may interest….. (sorry ang bilis ni mam)

When can Moral damages be awarded
 Article 2219. Moral damages may be recovered in the following and analogous
cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in article 309;

(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

The parents of the female seduced, abducted, raped, or abused, referred to in No.
3 of this article, may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the
action mentioned in No. 9 of this article, in the order named.

How about the nominal and temperate damages? What is the difference?

Article 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which
has been violated or invaded by the defendant, may be vindicated or recognized, and not
for the purpose of indemnifying the plaintiff for any loss suffered by him.

- The assessment of nominal damages is left to the discretion of the court

according to the circumstances of the case. The award of nominal damages is
also justified in the absence of competent proof of the specific amounts of actual
damages suffered.

Article 2224. Temperate or moderate damages, which are more than nominal but less
than compensatory damages, may be recovered when the court finds that some
pecuniary loss has been suffered but its amount can not, from the nature of the case, be
provided with certainty.

- may be recovered when the court finds that some pecuniary loss has been
suffered but its amount can not, from the nature of the case, be provided with
certainty.
- cannot co-exist with actual damages

Requisites for exemplary or corrective damage?

 Requisites for the award of exemplary damages:
1. They may be imposed by way of example in addition to compensatory
damages, and only after the claimant’s right to them has been established.
2. They cannot be recovered as a matter of right, their determination
depending upon the amount of compensatory damages that may be awarded
to the claimant.
3. The act must be accompanied by bad faith or done in wanton, fraudulent,
oppressive or malevolent manner.

1. Fabre vs. CA, G.R. No. 111127, July 26, 1996;

27 Nov 2021 Transpo intel

1. Vda. De Abeto vs. PAL

2. Japan AIrlines vs. Michael Asuncion et al
1. Did the Japan Airlines exercised extra ordinary diligence?
- YES. JAL has the duty to inspect whether its passengers have the
necessary travel documents, however, such duty does not extend to
checking the veracity of every entry in these documents. JAL could not
vouch for the authenticity of a passport and the correctness of the entries
therein. The power to admit or not an alien into the country is a sovereign
act which cannot be interfered with even by JAL.

2. How about the argument of they have a hotel booking - they should
have gone there and not the rest house, how did the court resolve that
issue?
- the power to admit or not an alien into the country is a sovereign
act which cannot be interfered with even by JAL

3. What are the pcs. of evidence that Japan Airlines exercised

extraordinary diligence?
- JAL endorsed respondents' applications, which Mrs. Higuchi did immediately
upon their arrival in Narita. Mrs. Higuchi did all she could to assist the
respondents. Upon being notified of the denial of respondents' applications, Mrs.
Higuchi immediately made reservations for respondents at the Narita Airport Rest
House which is really more a hotel than a detention house as claimed by
respondents.

4. How about the allegations that they were treated rudely and there was
improper behavior? Was that proven?
- JAL endorsed respondents' applications, which Mrs. Higuchi did
immediately upon their arrival in Narita. Mrs. Higuchi did all she
could to assist the respondents. Upon being notified of the denial
of respondents' applications, Mrs. Higuchi immediately made
 reservations for respondents at the Narita Airport Rest House
which is really more a hotel than a detention house as claimed by
respondents.

5. Did the Airlines properly substantiate that they exercised extraordinary

due diligence?
- JAL has the duty to inspect whether its passengers have the necessary
travel documents, however, such duty does not extend to checking the
veracity of every entry in these documents. JAL could not vouch for the
authenticity of a passport and the correctness of the entries therein. The
power to admit or not an alien into the country is a sovereign act which
cannot be interfered with even by JAL. This is not within the ambit of the
contract of carriage entered into by JAL and herein respondents. As such,
JAL should not be faulted for the denial of respondents' shore pass
applications.

MOD 7
1. What is a bill of lading?
- A written acknowledgement, signed by the master of a vessel or other
authorized agent of the carrier, that he has received the described goods
from the shipper, to be transported on the expressed terms, to the
described place, destination, and to be delivered there to the designated
consignee or parties

2. Classes of the bill of lading? Distinguish each

1. Negotiable
- States that the goods referred to therein will be delivered to the bearer or to the
order of any person named therein
2. Non-negotiable
- States that the goods referred to therein will be delivered to a specified person
3. Clean bill of lading
- Does not contain any notation indicating any defect in the goods
4. Foul bill of lading
- Contain notations indicating any defect in the goods
5. “On board bill”
- States that the goods have been received on board the vessel which is to
carry the goods
- Issued when the goods have been actually placed aboard the ship with every
reasonable expectation that the shipment is as good as on its way
- Required in a maritime contract because of its apparent guaranty of the
certainty of shipping as well as the seaworthiness of the vessel to carry the goods
6. “Received for shipment bill”
- States that the goods have been received for shipment with or without specifying the
vessel by which the goods are to be shipped
- Issued when conditions are not normal and there is insufficiency of shipping
space
7. Spent bill of lading
- Unreturned bill after the goods were already delivered
 - Where a carrier already delivers the goods, the carrier is supposed to have
retrieved the bill he issued for the goods
8. Through bill of lading
- Issued by a carrier who is obliged to use the facilities of other carriers as well
as his own facilities for the purpose of transporting the goods from the city of the
seller to the city of the buyer, which bill of lading is honored by the second and other
interested carriers who do not issue their own bill of lading
9. Custody bill of lading
- The goods are already received by the carrier but the vessel indicated therein
has not yet arrived in the port
10. Port bill of lading
- The vessel indicated in the bill of lading that will transport the goods is
already in the port

3. What is the effect of the unsigned Bill of Lading if accepted by the carrier?
Should it be signed? Should it be accepted by the shipper?
- It should be signed and accepted by the shipper (based on definition of
bill of lading)
1. Is it valid if it’s not signed? No
2. Is there a presumption that it is valid and binding as to the carrier?
No. the carrier must sign it to be bound by the contract

4. What must be indicated in the Bill of Lading? These are specified by the Code
of Commerce. What are those?
ARTICLE 350. The shipper as well as the carrier of merchandise and goods may
mutually demand of each other the issue of a bill of lading in which there shall be
stated:

1. The name, surname, and domicile of the shipper.

2. The name, surname, and domicile of the carrier.

3. The name, surname and domicile of the person to whom or to whose order the
goods are addressed, or whether they are to be delivered to the bearer of the said
bill.

4. A description of the goods, stating their generic character, their weight, and the
external marks or signs of the packages containing the same.

5. The cost of the transportation.

6. The date on which the shipment is made.

7. The place of the delivery to the carrier.

8. The place and time at which the delivery is to be made to the consignee.

9. The damages to be paid by the carrier in case of delay, if any agreement is made
on this point.
 1. Absence of one of the details, will it invalidate the BOL? No. Because?

5. Is a BOL necessary to establish a Contract of carriage? Is it indispensable?

- no it is not indispensable for the creation of a contract of carriage
6. Parties to a BOL?
The parties in a bill of lading are the SHIPPER and the CARRIER. However, a
consignee, although not a signatory to the contract of carriage between the shipper
and the carrier becomes a party to the contract by reason of either:
a) The relationship of agency between the consignee and the
shipper/consignor;
b) The unequivocal acceptance of the bill of lading delivered to the
consignee, with full knowledge of its contents;
c) Availment of the stipulation pour autrui (i.e when the consignee, the third
person, demands before the carrier the fulfillment of the stipulation made
by the consignor/shipper in the consignee’s favor, specifically the delivery
of the goods/cargoes shipped.”
7. Nature of a BOL?
- It is a long standing jurisprudential rule that a bil of lading operates both:
(a) as a receipt and (2) as a contract. A third characteristic may be added
- (3) it is a document of title that makes it a symbol of the goods.
- It is a receipt for the goods shipped and a contract to transport and deliver
the same as stipulated. As a contract, it stipulates the rights and
obligations assumed by the parties. Being a contract, it is the law between
the parties who are bound by its terms and conditions, provided they are
not contrary to law, morals, good costumes, public order, and public
policy. (aquino p 303)
8. Basic stipulations in a BOL? There are three types stipulations limiting liability.
What are these?
1. Basic stipulations in a bill of lading (Sec. 4[5], COGSA)
- it is contract to transport and deliver the same as stipulated
- receipt by the carrier of the goods as described
- Guarantee of the shipper to the carrier of the accuracy at the time of
shipment of the marks, number, quantity and weight

-no liability, limited liability, qualified liability

9. Provisions in Civil Code regarding limitations of liability?

1. Is there a presumption of negligence? What does the Civil Code say?
10. What are the grounds prohibiting limiting stipulations in Civil Code? (diko
maintindihan tanong. Basta 3 grounds to)
-Three kinds of stipulations have often been made in a bill of lading. The first is one
exempting the carrier from any and all liability for loss or damage occasioned by its
own negligence. The second is one providing for an unqualified limitation of such
liability to an agreed valuation. And the third is one limiting the liability of the carrier
to an agreed valuation unless the shipper declares a higher value and pays a higher
rate of freight. According to an almost uniform weight of authority, the first and
second kinds of stipulations are invalid as being contrary to public policy, but the third
is valid and enforceable.
 11. What are the prohibited stipulations according to the Civil Code?
- Article 1745: Any of the following or similar stipulations shall be considered
unreasonable, unjust and contrary to public policy:
(1) That the goods are transported at the risk of the owner or shipper;
(2) That the common carrier will not be liable for any loss, destruction, or
deterioration of the goods;
(3) That the common carrier need not observe any diligence in the custody of
the goods;
(4) That the common carrier shall exercise a degree of diligence less than
that of a good father of a family, or of a man of ordinary prudence in the
vigilance over the movables transported;
(5) That the common carrier shall not be responsible for the acts or omission
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;
(7) That the common carrier is 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.

(Aquino page 326)

12. What is a Document of Title?

It is a document which shows that a person is entitled to receive, hold, and dispose of
the goods covered by the document.

13. What is a Negotiable Document of Title?

Under the NCC, a negotiable document of title is a document stating that the goods
referred in it will be delivered to the bearer or order of any person named in the
document.

What do you mean by “bearer”?

What are the other bearer documents - there’s 2 scenarios?

14. What happens if there’s a term “non-negotiable,” what is the effect?

Article 1510 of the Civil Code, the document remains to be negotiable even if the
words “non-negotiable” are placed thereon.

15. What are the modes of negotiating a negotiable document of title?

If it is a bearer document, it may be negotiated by delivery. If it is an order document,

it can only be negotiated through the indorsement of the specified person named in
the document. Such indorsement may be in blank, to bearer, or to a specified person.

What is the effect of stamp of non-negotiability?

 16. How about if there’s an incomplete negotiation?

The transferee may also convert the plain transfer to negotiation by compelling the
transferor to complete the negotiation process.

17. What rights does a person negotiating a negotiable document of title acquire?
1. What title does the person negotiating acquire?

It has the effect of manual delivery so as to constitute the transferee the

owner of the goods. It results in the transfer of ownership because transfer of
document likewise transfers control over the goods.

2. If the person negotiating does not have a title, what happens?

18. What are the other functions or nature of a BOL?
1. As a document of title
2. As a contract
3. As a receipt
19. What is your understanding of a document of title as a receipt?

It carries the presumption that the goods were delivered to the carrier issuing
the bill and is prima facie evidence of the receipt of goods by the carrier (also includes
quantity and description of the goods).

20. What are the damages or instances under the Warsaw Convention?
(1) Art. 17 Death and Injury of Passengers - Damage to Baggage
(2) Art. 18 Damage to Cargo
(3) Art. 19 Delay
(4) Article 22 — Limits of Liability in Relation to Delay, Baggage and
Cargo

Article 17 — Death and Injury of Passengers — Damage to Baggage

1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon
condition only that the accident which caused the death or injury took place on board the aircraft or in
the course of any of the operations of embarking or disembarking.

2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to,
checked baggage upon condition only that the event which caused the destruction, loss or damage
took place on board the aircraft or during any period within which the checked baggage was in the
charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted
from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including
personal items, the carrier is liable if the damage resulted from its fault or that of its servants or
agents.

3. If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at
the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is
entitled to enforce against the carrier the rights which flow from the contract of carriage.
4. Unless otherwise specified, in this Convention the term “baggage“ means both checked baggage
and unchecked baggage.

Article 18 — Damage to Cargo

1. The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to,
cargo upon condition only that the event which caused the damage so sustained took place during the
carriage by air.

2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or
damage to, the cargo resulted from one or more of the following:
(a) inherent defect, quality or vice of that cargo;
(b) defective packing of that cargo performed by a person other than the carrier or its
servants or agents;
(c) an act of war or an armed conflict;
(d) an act of public authority carried out in connection with the entry, exit or transit of the
cargo.

3. The carriage by air within the meaning of paragraph 1 of this Article comprises the period during
which the cargo is in the charge of the carrier.

4. The period of the carriage by air does not extend to any carriage by land, by sea or by inland
waterway performed outside an airport. If, however, such carriage takes place in the performance of a
contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage is
presumed, subject to proof to the contrary, to have been the result of an event which took place
during the carriage by air. If a carrier, without the consent of the consignor, substitutes carriage by
another mode of transport for the whole or part of a carriage intended by the agreement between the
parties to be carriage by air, such carriage by another mode of transport is deemed to be within the
period of carriage by air.

Article 19 — Delay
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or
cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it
and its servants and agents took all measures that could reasonably be required to avoid the damage
or that it was impossible for it or them to take such measures.

Article 22 — Limits of Liability in Relation to Delay, Baggage and Cargo

1. In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the
liability of the carrier for each passenger is limited to 4 150 Special Drawing Rights.

2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or
delay is limited to 1 000 Special Drawing Rights for each passenger unless the passenger has made,
at the time when the checked baggage was handed over to the carrier, a special declaration of
interest in delivery at destination and has paid a supplementary sum if the case so requires. In that
case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the
sum is greater than the passenger’s actual interest in delivery at destination.

3. In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay
is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the consignor has made, at
the time when the package was handed over to the carrier, a special declaration of interest in delivery
at destination and has paid a supplementary sum if the case so requires. In that case the carrier will
be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than
the consignor’s actual interest in delivery at destination.

4. In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained
therein, the weight to be taken into consideration in determining the amount to which the carrier’s
liability is limited shall be only the total weight of the package or packages concerned. Nevertheless,
when the destruction, loss, damage or delay of a part of the cargo, or of an object contained therein,
affects the value of other packages covered by the same air waybill, or the same receipt or, if they
were not issued, by the same record preserved by the other means referred to in paragraph 2 of
Article 4, the total weight of such package or packages shall also be taken into consideration in
determining the limit of liability.

5. The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the
damage resulted from an act or omission of the carrier, its servants or agents, done with intent to
cause damage or recklessly and with knowledge that damage would probably result; provided that, in
the case of such act or omission of a servant or agent, it is also proved that such servant or agent was
acting within the scope of its employment.

6. The limits prescribed in Article 21 and in this Article shall not prevent the court from awarding, in
accordance with its own law, in addition, the whole or part of the court costs and of the other
expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not
apply if the amount of the damages awarded, excluding court costs and other expenses of the
litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a
period of six months from the date of the occurrence causing the damage, or before the
commencement of the action, if that is later.

1. Is delay covered in the Warsaw convention?

2. Where must the action be filed? At whose option? Plaintiff.

So what happened if for example the limitations you mentioned, parties agreed
to lower the limitations. Is that allowed? Is that a valid limitation of liability?
3. Can parties stipulate lower limit? Does the Warsaw Convention stipulate
this is null and void?
4. In case that provision was rendered null and void will that render other
provisions null and void as well? No.
21. Heacock Company vs. Macondray
22. Ong Yiu vs. CA

2S November 13, 2021

Assignment: Modules 5 & 6

***

What are the Obligations of shipper , consignee and passenger

1. to observe due diligence to avoid injury
2. to pay consideration in the form of freight or fare

Shipper and consignee first:

What is the diligence required as to the passenger? - due diligence of a good father
of the family,

What does this mean? means an ordinary care. Just like a father of a family, it is a care
that an average person would do in taking care of his property.

Shipper must exercise due diligence, does it require to disclose the details regarding
the goods? - contents, information, facts?
- Yes, sole responsibility of the shipper UNLESS there is stipulation to the contrary.

Who is required to pay the freight or fare? Either shipper or consignor if stipulated, but
consignor is primary liable

How about the time of payment? Art. 374 w/in 24 hrs from the time of delivery,
What is the remedy of the shipper if it’s not paid within the time?
- Art. 374 in case of delay in making this payment, the carrier may request the judicial
sale of the goods he transported to a sufficient amount to cover the transportation
charges and the expenses incurred.

What is a carrier’s lien? Art. 375 of code of commerce to. Does the Civil Code modified
this as to its credit? - malolose na ung lien after the 30 days Art. 2241(9)

If consignor or the consignee fails to pay the consideration for the transportation of
goods, the carrier may exercise his lien in accordance with

Art. 375 of Code of Commerce:

ARTICLE 375. The goods transported shall be especially bound to answer for the cost
of transportation and for the expenses and fees incurred for them during their
conveyance and until the moment of their delivery. This special right shall prescribe
eight days after the delivery has been made, and once prescribed, the carrier shall
have no other action than that corresponding to him as an ordinary creditor.

What is demurrage?
- Demurrage is the compensation provided for the contract of affreightment
for the detention of the vessel beyond the time agreed on for loading and
 unloading. It is the claim for damages for failure to accept delivery. In broad
sense, very improper detention of a vessel may be considered a demurrage.
Technically, liability for demurrage exists only when expressly stipulated in the
contract.
***

Q: “Time agreed on for loading and unloading?”

‣ This period is referred to as “lay days” as is stipulated by the parties.

Effects of negligence of the shipper?

- contributory negligence on the part of the shipper/ passenger would only mitigate
the carrier’s liability; it is not a total excuse.
- However, if the negligence of the shipper/ passenger is the proximate and only
cause of the loss, then, the carrier shall not be liable.

Duties of passenger -
1. to observe due diligence to avoid injury
2. to pay consideration in the form of freight or fare

Effects of negligence of passenger

- contributory negligence on the part of the shipper/ passenger would only mitigate
the carrier’s liability; it is not a total excuse.
- However, if the negligence of the shipper/ passenger is the proximate and only
cause of the loss, then, the carrier shall not be liable.

What is the degree of diligence of a passenger?

- Diligence of a good father of a family

What are the acceptable conducts of a passenger? In aviation? Ex. no smoking,

passenger seat belt,

ISAAC v, AL Ammen Transpo

***
Compania Maritama v. CA

PNR v. CA
Where there damages that was deleted? - Yes, damages for moral and exemplary

***
What is extraordinary diligence? Why does the law require it?]
- It is the rendition of service with the greatest skill or foresight, with due regard for
all circumstances.

This extraordinary diligence required of common carriers is calculated to protect

the passengers from the tragic mishaps that frequently occur in connection with
the rapid modern transportation. This high standard of care is imperatively
demanded by the preciousness of human life and by the consideration that
every person must in every way be safeguarded against all injury.

Rationale:
1. From the nature of the business and for reasons of public policy
2. Relationship of trust
3. Business is impressed with a special public duty
4. Possession of the goods
5. Preciousness of human life

Can parties stipulate to exclude extraordinary diligence? Goods? Passengers?

- Goods: no, Art. 1745 - stipulation may be less than extraordinary diligence only
- Passengers: no, Art. 1757

Goods at shippers risk, void or valid stipulation?

- Article 1745. Any of the following or similar stipulations shall be considered
unreasonable, unjust and contrary to public policy:
(1) That the goods are transported at the risk of the owner or shipper;

How about passenger carried gratuitously?

- same degree of diligence is required even if the passenger is carried gratuitously.
A common carrier should therefore exercise extraordinary diligence even as
to non-paying passengers. What the carrier can do is just limit its liability.

How about reduction in fare, does it also reduce extra ordinary diligence?
- The reduction of fare does not justify any limitation of the common carrier's
liability.

What is seaworthiness?
- is that strength, durability and engineering skill made a part of a ship’s
construction and continued maintenance, together with a competent and
sufficient crew, which would withstand
-
- Fitness of the vessel itself to withstand the rigors or vicissitudes of the voyage
- Fitness of the vessel to store the cargoes and accommodate passengers to be
transported
 - Vessel is adequately equipped and properly manned with a sufficient number of
competent officers and crew

So if you're a shipper or passenger, are you required to inspect the ship?

- implied warranty, not required to inspect
- not expected to inquire into the vessels seaworthiness, genuineness of licenses
and compliance with maritime laws

What is the basis of implied warranty? - Insurance code ata to?

Sec. 116, Insurance Code. A warranty of seaworthiness extends not only to the
condition of the structure of the ship itself, but requires that it be properly laden,
and provided with a competent master, a sufficient number of competent officers
and seamen, and the requisite appurtenances and equipment, such as ballasts,
cables and anchors, cordage and sails, food, water, fuel and lights, and other
necessary or proper stores and implements for the voyage.

Under the COSGA, are there any warranties?

Sec. 3.
(1) The carrier shall be bound before and at the beginning of the voyage to
exercise due diligence to –
a. Make the ship seaworthy;
b. Properly man, equip, and supply the ship;
c. Make the holds, refrigerating and cooling chambers, and all other parts of
the ship in which goods are carried, fit and safe for their reception,
carriage, and preservation.
(2) The carrier shall properly and carefully load, handle, stow, carry, keep, care for, and
discharge the goods carried. (COGSA)

In the Insurance Code, how is the seaworthiness? What is the requirement? Is it per
particular voyage? Extend to what? -- not only to physical structure, but also to captain &
crews , properly laden, competent master,

Comparison between seaworthiness in COGSA and Insurance Code

Who has the burden of proof?

- It is the carrier that carries such burden of proving that the ship is seaworthy.
Presentation of certificates of seaworthiness is not sufficient to overcome the
presumption of negligence.

Cargoworthy does it imply seaworthy? What is the difference?

- The ship must not be only seaworthy but it must also be cargo worthy. The ship
must be an efficient storehouse for her cargo.
The ship must be cargoworthy. The ship must be efficiently strong and equipped to carry
the particular kind of cargo which she has contracted to carry and her cargo must be so
loaded that it is safe for her to proceed on her voyage.

Are the captain & crew be held liable in case of limited liability?
Failure on the part of the carrier to provide competent captain and crew should be
distinguished from the negligence of the said captain and crew, because the latter is
covered by the Limited Liability Rule (liability of the shipowner may be limited to
the value of the vessel).
If the negligence of the captain and crew can be traced to the fact that they are really
incompetent, the Limited Liability Rule cannot be invoked because the shipowner may
be deemed negligent.

What are the rules on deviation and transhipment?

If there is an agreement between the shipper and the carrier as to the road over
which the conveyance is to be made (subject to the approval by the Maritime
Industry Authority), the carrier may not change the route, unless it be by reason of
force majeure.

Without this cause, he shall be liable for all the losses which the goods may suffer,
aside from paying the sum stipulated for that case.

The act of taking cargo out of one ship and loading it into another; to transfer
goods from the vessel stipulated in the contract of affreightment to another vessel
before the place of destination named in the contract has been reached. transshipment
of freight without legal excuse is a violation of the contract and subjects the arrier
to liability if the freight is lost even by a cause otherwise excepted.

In the absence of usual route, what should be followed? Is it the direct

geographical route? What is the effect if there is improper deviation?
If there is an agreement between the shipper and the carrier as to the road over
which the conveyance is to be made, the carrier may not change the route,
unless it be by reason of force majeure; and should he do so without this cause,
he shall be liable for all the losses which the goods he transports may suffer from
any other cause

- Improper deviation may be a valid ground to deny a marine insurance claim

under the Insurance Code.

What is the rule on transhipment? Does it allowed or not allowed?

Transshipment of freight without legal excuse is a violation of the contract and
subjects the arrier to liability if the freight is lost even by a cause otherwise
excepted.
What if there’s transhipment in between vessel, same company? Is this in
violation?
- It does not depend upon the ownership of the transporting ships or conveyances
in the change of carriers but rather on the fact of actual physical transfer of
cargo from one vessel to another

What is the extraordinary diligence for land transportation?

1. VEHICLE’S CONDITION
• Common carriers that offer transportation by land are required to make sure that
the vehicles that they are using are in good order or condition.

• Thus, the carrier will not be excused from liability on the ground that the tire
blowout was due to fortuitous event when it was shown that the passengers were
injured because the floor of the bus gave way.

2. TRAFFIC RULES
• The carrier fails to exercise extraordinary diligence if it will not comply with basic
traffic rules. For the presumption of negligence under Article 1756 to operate, all that is
required is proof of death or injury to a passenger. For the presumption under Article
21851 to operate, there must be proof of violation of traffic rules.

3. OBLIGATION TO INSPECT
• There is no unbending duty to inspect each and every package or baggage that is
being brought inside the bus or jeepney. The carrier is duty bound to conduct such
inspection depending on the circumstances

What is roadworthiness?
Common carriers that offer transportation by land are similarly required to make sure
that the vehicles that they are using are in good order and condition.
- or streetworthiness is a property or ability of a car, bus, truck or any kind of
automobile to be in a suitable operating condition or meeting acceptable
standards for safe driving and transport of people, baggage or cargo in
roads or streets.

How about traffic rules? What is the presumption if one violated traffic rule? What
does the Civil Code provides?
- Art. 2185 provides for the presumption of negligence in case the accident occurs
while the operator of the motor vehicle is violating traffic rules
- The carrier is LIABLE and will not overcome the presumption of negligence if
there is a violation of traffic rules because extraordinary diligence requires
compliance with traffic rules and regulations
What are the the basic traffic rules? I.e., overspeeding, slow down upon pedestrian lane/
school, no overtaking on a curb, intersection, driving w/o license, under influence of
alochol/drug

Is the common carrier obliged that their drivers are not under influence of alcohol?

Anti-Drunk and Drugged Driving law

- RA 10586 punishes any person driving a motor vehicle while under the influence
of alcohol, dangerous drugs and/or other similar substances

Is there a duty to inspect every baggage that is being carried by the passenger
- in overland transportation, common carrier is NOT bound nor empowered to
make an examination of the contents of packages or bags particularly those hand
carried

What is air worthiness?

- The aircraft must be in such a condition that it must be able to withstand the
rigors of the flight
- an aircraft, its engines, propellers and other components and accessories are of
proper design and construction, and are safe for air navigation purposes, such
design and construction being consistent with accepted engineering practice and
in accordance with aerodynamic laws and aircraft science (RA 9497).

- Proof of airworthiness is not by itself sufficient to prove exercise of

extraordinary diligence.
- The fact that the flight was cancelled due to fortuitous event does not
mean that the carrier’s duty already ended. The carrier is still obligated
to look after the convenience and comfort of the passenger.

Due diligence in air transportation:

1. Make sure that the aircraft is airworthy
2. Vessel has a competent captain and crew
3. Captain and crew exercise extraordinary diligence

Dami tanong, di ko n kaya haha

Standard Vaccum Oil v. Luzon Stevedoring

Planters Products v. CA

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