SCHMITZ TRANSPORT & BROKERAGE CORPORATION, AUTHOR: Mendoza, J.D.

petitioner, vs. TRANSPORT VENTURE, INC.

G.R. No. 150255
April 22, 2005

FACTS: SYTCO Pte Ltd. Singapore shipped from the port of Ilyichevsk, Russia on board M/V
"Alexander Saveliev" (a vessel of Russian registry and owned by Black Sea) 545 hot rolled steel
sheets in coil weighing 6,992,450 metric tons. The cargoes, which were to be discharged at the
port of Manila in favor of the consignee, Little Giant Steel Pipe Corporation were insured against
all risks with Industrial Insurance Company Ltd. (Industrial Insurance).
The vessel arrived at the port of Manila and the Philippine Ports Authority (PPA) assigned it a
place of berth at the outside breakwater at the Manila South Harbor. Schmitz Transport, whose
services the consignee engaged to secure the requisite clearances, to receive the cargoes from the
shipside, and to deliver them to (the consignee's) warehouse at Cainta, Rizal, in turn engaged the
services of TVI to send a barge and tugboat. TVI's tugboat "Lailani" towed the barge "Erika V"
to shipside.
The tugboat, after positioning the barge alongside the vessel, left and returned to the port
terminal. The arrastre operator Ocean Terminal Services Inc. commenced to unload 37 of the 545
coils from the vessel unto the barge. The weather condition had become inclement due to an
approaching storm, the unloading unto the barge of the 37 coils was accomplished. No tugboat
pulled the barge back to the pier.
Due to strong waves, the crew of the barge abandoned it and transferred to the vessel. The barge
pitched and rolled with the waves and eventually capsized, washing the 37 coils into the sea. A
tugboat finally arrived to pull the already empty and damaged barge back to the pier. Earnest
efforts on the part of both the consignee Little Giant and Industrial Insurance to recover the lost
cargoes proved futile. Little Giant thus filed a formal claim against Industrial Insurance which
paid it the amount of P5,246,113.11. Little Giant thereupon executed a subrogation receipt in
favor of Industrial Insurance. Industrial Insurance later filed a complaint against Schmitz
Transport, TVI, and Black Sea through its representative Inchcape (the defendants) before the
RTC of Manila, for the recovery of the amount it paid to Little Giant plus adjustment fees,
attorney's fees, and litigation expenses. Industrial Insurance faulted the defendants for
undertaking the unloading of the cargoes while typhoon signal No. 1 was raised in Metro Manila.
RTC held all the defendants negligent for unloading the cargoes outside of the breakwater
notwithstanding the storm signal. CA: Affirmed. The defendants were common carriers — Black
Sea and TVI for engaging in the transport of goods and cargoes over the seas as a regular
business and not as an isolated transaction, and Schmitz Transport for entering into a contract
with Little Giant to transport the cargoes from ship to port for a fee.
ISSUE(S): (1) Whether the loss of the cargoes was due to a fortuitous event, independent of any
act of negligence on the part of petitioner Black Sea and TVI. (2) If there was negligence,
whether liability for the loss may attach to Black Sea, petitioner and TVI. Only to Petitioner and
TVI.
HELD: WHEREFORE, judgment is hereby rendered ordering petitioner Schmitz Transport &
Brokerage Corporation, and Transport Venture Incorporation jointly and severally liable for the
amount of P5,246,113.11 with the MODIFICATION that interest at SIX PERCENT per annum
of the amount due should be computed from the promulgation on November 24, 1997 of the
decision of the trial court. RATIO: 1. In order, to be considered a fortuitous event, however, (1)
the cause of the unforeseen and unexpected occurrence, or the failure of the debtor to comply
with his obligation, must be independent of human will; (2) it must be impossible to foresee the
event which constitute 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 any manner; and (4) the obligor must be free from any participation in the aggravation of the
injury resulting to the creditor. There is no indication that there was greater risk in loading the
cargoes outside the breakwater. As the defendants proffered, the
weather remained normal with moderate sea condition such that port operations continued and
proceeded normally. The weather data report, furnished and verified by the Chief of the Climate
Data Section of PAG-ASA and marked as a common exhibit of the parties, states that while
typhoon signal No. 1 was hoisted over Metro Manila on October 23-31, 1991, the sea condition
at the port of Manila was moderate. It cannot, therefore, be said that the defendants were
negligent in not unloading the cargoes upon the barge on October 26, 1991 inside the
breakwater. That no tugboat towed back the barge to the pier after the cargoes were completely
loaded in the morning is, however, a material fact which the appellate court failed to properly
consider and appreciate 40 — the proximate cause of the loss of the cargoes. Had the barge been
towed back promptly to the pier, the deteriorating sea conditions notwithstanding, the loss could
have been avoided. But the barge was left floating in open sea until big waves set in at 5:30 a.m.,
causing it to sink along with the cargoes. The loss thus falls outside the "act of God doctrine." 2.
This Court, as did the appellate court, finds that petitioner is a common carrier. For it undertook
to transport the cargoes from the shipside of "M/V Alexander Saveliev" to the consignee's
warehouse at Cainta, Rizal. As the appellate court put it, "as long as a person or corporation
holds [itself] to the public for the purpose of transporting goods as [business, is already
considered a common carrier regardless if [it] owns the vehicle to be used or has to hire one."
That petitioner is a common carrier, the testimony of its own Vice-President and General
Manager Noel Aro that part of the services it offers to its clients as a brokerage firm includes the
transportation of cargoes reflects so. True, petitioner was the broker-agent of Little Giant in
securing the release of the cargoes. In effecting the transportation of the cargoes from the
shipside and into Little Giant's warehouse, however, petitioner was discharging its own personal
obligation under a contact of carriage. Petitioner, which did not have any barge or tugboat,
engaged the services of TVI as handler to provide the barge and the tugboat. In their Service
Contract, while Little Giant was named as the consignee, petitioner did not disclose that it was
acting on commission and was chartering the vessel for Little Giant. Little Giant did not thus
automatically become a party to the Service Contract and was not, therefore, bound by the terms
and conditions therein. Not being a party to the service contract, Little Giant cannot directly sue
TVI based thereon but it can maintain a cause of action for negligence. In the case of TVI, while
it acted as a private carrier for which it was under no duty to observe extraordinary diligence, it
was still required to observe ordinary diligence to ensure the proper and careful handling, care
and discharge of the carried goods. TVI's failure to promptly provide a tugboat did not only
increase the risk that might have been reasonably anticipated during the shipside operation, but
was the proximate cause of the loss. A man of ordinary prudence would not leave a heavily
loaded barge floating for a considerable number of hours, at such a precarious time, and in the
open sea, knowing that the barge does not have any power of its own and is totally defenseless
from the ravages of the sea. That it was nighttime and, therefore, the members of the crew of a
tugboat would be charging overtime pay did not excuse TVI from calling for one such tugboat.
In the case at bar, Bill of Lading No. 2 covering the shipment provides that delivery be made "to
the port of discharge or so near thereto as she may safely get, always afloat." 59 The delivery of
the goods to the consignee was not from "pier to pier" but from the shipside of "M/V Alexander
Saveliev" and into barges, for which reason the consignee contracted the services of petitioner.
Since Black Sea had constructively delivered the cargoes to Little Giant, through petitioner, it
had discharged its duty.