Transportation and maritime law
Yüklə 1,24 Mb.
|
Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. Art. 2232. In contracts and quasi contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. Art. 2233. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated. Mecenas vs CA, 180 SCRA 83 F: M/V Tacloban City (TC) left Amlan, Negros Oriental bound for Manila. M/V Don Juan (DJ) left Manila bound for Bacolod. TC had visual contact of DJ when they were about 5 miles apart and as a precaution, it was steered to its left. DJ had radar contact of TC when they were four miles apart and following R18 of the International Rules of the Road when a collision is possible, it was steered to its right. At 10:30 PM, both collided as a result of which DJ sank 15 minutes later and hundreds of its passengers perished. Petitioners, children of the victims, filed a case against Negros Navigation, owner of DJ, based on quasi-delict. The RTC awarded damages of P 400,000 for the death of plaintiffs' parents and P 15,000 for attorney's fees. The CA modified the award to P 100,000 as actual and compensatory damages. Held: Before going into the issue, the SC ruled that the action which was based on quasi-delict should be appropriately regarded as grounded on contract, and indulged in the presumption of negligence on the part of the CC although its EEs may have acted beyond the scope of their authority or even in violation of its instructions. Its liability would include moral damages (Art. 1764) and exemplary damages if the defendants acted recklessly or with gross negligence (Art. 2332). There is no question that the defendants are negligent. As found by the CFI, DJ steered to the right while TC continued its course to the left. There can be no excuse for them not to realize that with such maneuvers, they will collide. They executed maneuvers inadequately and too late, to avoid collision. The question is WON the defendants were recklessly or grossly negligent. The SC ruled in the affirmative. As for the captain, he was playing mahjong before and up to the time of the collision. WON he was then off-duty is immaterial; there is, both realistically speaking and in contemplation of law, no such thing as off-duty hours for the master of a vessel at sea that is a CC upon whom the law imposes the duty of extraordinary diligence. When the collision occurred, the captain failed to supervise his crew in the process of abandoning the ship and he failed to avail of measures to prevent the too rapid sinking of his vessel, thus aggravating the casualties. As for Negros Aviation, in permitting, or in failing to discover and correct the regularity of the captain's mahjong sessions while DJ was at sea, it must be deemed grossly negligent. It also sailed with an overload (1,004 passengers and crewmembers). As for the failure of TC to follow R18 by turning right instead of left, the SC ruled that it is not applicable and will not relieve DJ 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. DJ is still at fault when, upon seeing TC turn to its left, it still turned to its right resulting in the collision. The SC awarded moral damages of P 307,000 and exemplary damages of P 307,000 and attorney's fees of P 15,000 together with actual and compensatory damages for wrongful death of P 126,000 and P 60,000 for a total of P 815,000. Although the petitioners only asked for P 400,000 award of damages granted by the CFI, the SC increased it to P 800,000 following the doctrine that the SC must consider and resolve all issues which must be decided in order to render substantial justice to the parties, including issues not explicitly raised by the parties affected. In discussing the rule of exemplary damages in law, the SC looks to it as an instrument to serve the ends of law and public policy by reshaping socially deleterious behaviors, specifically, in the case, to compel CC to control their EEs, to tame their reckless instincts, and to force them to take adequate care of human beings and their property. 5. Nominal, Temperate and Liquidated Art. 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. Art. 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 cannot, from the nature of the case, be proved with certainty. Art. 2226. Liquidated damages are those agreed upon by the parties to a contract, to be paid in case of breach thereof. Art. 1757. The responsibility of a common carrier for the safety of passengers as required in Arts. 1733 and 1755 cannot be dispensed with or lessened by stipulation, by the posting of notices, by statements on tickets, or otherwise. Alitalia vs IAC, 192 SCRA 10 F: Dr. Felipa Pablo, an associate professor of UP and a research grantee of the Phil. Atomic Energy Association was invited to take part at a meeting sponsored by the United Nations in Ispra, Italy. She accepted the invitation and was then scheduled by the organizers to read her paper. She was to be the 2nd speaker on the first day of the meeting. She then booked passage with Alitalia. She arrived in Milan on the day before the meeting in accordance with the itinerary set for her by Alitalia but her luggage was delayed as it was in one of the succeeding flights from Rome to Milan. However, the other flights from Rome did not have her baggage on board. Her luggage consisted of 2 suitcases-- one for her clothing and personal items and the other for her scientific papers, slides and other research material. Feeling desperate, she went to Rome to try to locate her bags. She inquired about her suitcases in the international and domestic airports and filled out the forms required by Alitalia for people in her predicament. However, her baggage could not be found. Discouraged, she returned to Manila without attending the meeting in Ispra, Italy. In Manila, she demanded that Alitalia make reparation for damages suffered by her. Alitalia offered her free airline tickets which she rejected while instituting this action. Her bags were located and forwarded to Ispra but only on the day after her scheduled appearance. As she was no longer there to accept delivery, her bags were not actually returned to her until after 11 months. The CFI awarded nominal damages of P 20,000 and attorney's fees of P 5,000 plus costs of the suit. The IAC increased the award of nominal damages to P 40,000. The increase was justified as follows-- considering the negligence committed by defendant, the amount of P20,000 under present inflationary conditions as awarded to plaintiff as nominal damages is too little to make up for the plaintiff's frustration and disappointment in not being able to appear at said conference, and for the embarrassment and humiliation she suffered from the academic community for failure to carry out an official mission for which she was singled out by the faculty to represent her institution and the country. Alitalia appealed on the following grounds: (1) That the Warsaw Convention should have been applied to limit Alitalia's liability; and (2) That there is no warrant in fact or in law for the award of nominal damages and attorney's fees. Held: Under the Warsaw Convention, an air carrier is made liable for damages for: (1) The death, wounding or other bodily injury of a passenger if the accident causing it took place on board the aircraft or in the course of its operations of embarking or disembarking; (2) The destruction, or loss of damage to, any registered luggage or goods, if the occurrence causing it took place during the carriage by air; and (3) Delay in the transportation by air of passengers, luggage or goods. The Convention also limits the liability of the carriers for each passenger to 250,000 francs and for registered baggage and cargo to 250 francs per kg unless the passenger has declared a higher rate and has paid additional charges. The Warsaw Convention, however, denies to the carrier availment of the provisions which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is considered to be equivalent to wilful misconduct or if the damage is similarly caused by any agent of the carrier acting within the scope of his employment. The Convention does not thus operate as an exclusive enumeration of the instances of an airline's liability, or as an absolute limit of the extent of that liability. Such proposition is not borne out by the language of the Convention. The Convention should be deemed a liability only in those cases where the cause of the death or injury to person, or destruction, loss or damage to property or delay in its transport is not attributable to or attended by any wilful misconduct, bad faith, recklessness, or otherwise improper conduct. The Convention does not regulate or exclude liability for other breaches of contract by the carrier. Otherwise, an air carrier would be exempt from any liability for damages in the event of its absolute refusal, in bad faith, to comply with a contract of carriage. The Warsaw Convention has invariably been held inapplicable, or as not restrictive of the carrier's liability, where there was satisfactory evidence of malice or bad faith attributable to its officers and employees. In the case at bar, no bad faith or otherwise improper conduct may be ascribed to the EEs of Alitalia. Dr. Pablo's luggage was eventually returned belatedly, but without appreciable damage. The fact is, nevertheless, that some special species of injury was caused to her because Alitalia misplaced her baggage and failed to deliver it to her at the time appointed -- a breach of its contract of carriage -- with the result that she was unable to read her paper that she had painstakingly labored over. The opportunity to claim honor or distinction for herself, for UP and for the country, was irretrievably lost to her. She also underwent profound distress and anxiety, which gradually turned into panic and despair, when she learned that her suitcases were missing. The compensation for the injury suffered by Dr. Pablo cannot under the circumstances be restricted to that prescribed by the Warsaw Convention for delay in the transport of baggage. She is not entitled to be compensated for loss or damage to her luggage since they were ultimately delivered to her. She is however entitled to nominal damages, which is adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated and recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered. As to the argument that she failed to include a specific claim for nominal damages in her complaint, it suffices that her general prayer includes "such other and further just and equitable relief in the premises." Also absent any claim for actual or compensatory damages (she asked for moral and exemplary damages and attorney's fees), and with proof of Dr. Pablo's right being violated, the issue of nominal damages is raised. The award of P 5,000 for attorney's fees is reasonable. The law authorizes recovery of attorney's fees where the defendant's act or omission has compelled the plaintiff to litigate with third person or to incur expenses to protect his interest, or where the court deems it just and equitable.
Maria Saludo and Saturnino Saludo, children of the deceased were booked with United Airlines from Chicago to California and with PAL from California to Manila. When she learned of her mother's arrangements, she changed reservations from UA to TWA. She watched from the look-out area but she saw no body being brought on the flight. She reluctantly took the TWA flight with her cousin's assurance to look into the matter. Upon arrival in SF, she went to the TWA counter to inquire about her mother's remains but she was told that they did not know anything about it. She then called Pomierski who then called CMAS which in a matter of 10 minutes told him that the remains had been switched with another body and had been sent to Mexico. Based on the facts, there was a mix-up in Chicago Airport between the two bodies. Arrangements were made to send the body to California through Texas. On October 28, 1976, the remains arrived in SF and was received by PAL at 7:45 p.m. The shipment was immediately loaded on PAL flight for Manila that same evening and arrived in Manila on October 30, 1976, a day after its expected arrival on October 29, 1976. Plaintiffs then filed a case against PAL and TWA before the CFI of Leyte, praying for the award of actual damages of P 50,000, moral damages of P 1,000,000, exemplary damages and attorney's fees and costs of suit. The CFI and CA absolved the two airline companies. Plaintiffs then appealed the decision on the ff. grounds: (1) That the delay in the delivery of the remains was due to the fault of the airlines, (2) The one day delay in the delivery constitutes breach of contract as would entitle them to damages, (3) That damages are recoverable by petitioners for the humiliating, arrogant, and indifferent acts of the EEs of TWA and PAL. The airlines objected on the ground that this petition only raises factual questions. Since it is precisely the soundness of the inferences or conclusions that may be drawn from the factual issues which are here being assailed, the issues raised in the petition indeed warrant a second look.
SC: An airway bill estops the carrier from denying receipt of goods. However, as between the shipper and the carrier, when no goods have been delivered for shipment no recitals in the bill can estop the carrier from showing the true facts. We must therefore allow the airline companies to explain, why, despite the issuance of the airway bill and the date thereof, they deny having received the remains of Saludo on Oct. 26, 1976. As found by the CA, the airway bill was issued, not as evidence of receipt of delivery but merely as confirmation for the booking made for the SF-Manila flight scheduled on October 27, 1976. It was not until Oct. 28 that PAL received physical delivery of the body at SF. The extraordinary responsibility of CC begins from the time the goods are delivered to the carrier. This responsibility remains in force even when they are temporarily unloaded or stored in transit, unless the shipper exercises the right of stoppage in transitu, and terminates ony after the lapse of a reasonable time for the acceptance of the goods by the consignee or other person entitled to receive them. For such duty to commence, there must in fact have been delivery of the cargo subject of the contract of carriage. Only when such fact of delivery has been unequivocally esablished can the reqt. of extraordinary responsibility arise. As found by the CA, the body was really received by PAL on Oct. 28, 1976 and it was from such date that it became responsible for the agreed cargo under the airway bill. Consequently, for the switching of caskets prior thereto which was not caused by them and subsequent events caused thereby, PAL cannot be held liable. (2) Petitioners allege that even assuming CMAS was at fault, PAL would still be liable because whoever brought the cargo to the airport or loaded it on the plane did so as agent of PAL. SC: This contention is without merit. When the cargo was received from CMAS, Air Care Intl, PAL's agent and TWA had no way of determining its actual contents, since the casket was hermetically sealed by the Philippine Vice-Consul. They had to rely on the information given by CMAS. No amount of inspection by the airlines could have guarded against the switching that had taken place. They had no authority to unseal and open the casket. It is the right of the carrier to require good faith on the part of those persons who deliver goods to be carried by it. In the absence of more definite information, the carrier has the right to accept shipper's marks as to the contents of the package offered for transportation and is not bound to inquire particularly about them. It can safely be said that a CC is entitled to fair representation of the nature and value of the goods to be carried, with the concomitant right to rely thereon, and that a carrier has no obligation to inquire into the correctness or sufficiency of such information. The consequent duty to conduct an inspection arises in the event that there should be reason to doubt the veracity of such representations. In this case, private respondents had no reason to doubt the truth of the shipper's representations. The airway bill was issued on the basis of such representations. Neither can they be held accountable on the basis of petitioner's theory that whoever brought the cargo to the airport or loaded it on the plane did so as an agent of private respondents, so that even if CMAS was indeed at fault, the liability would be attributed to the airlines. CMAS was not an agent of private respondents. It was hired to handle all the necessary shipping arrangements for the transportation of the remains. CMAS may be classified as a forwarder, which is regarded as the agent of the shipper (Pomierski) and not of the crrier. It merely contracts for the transportation of goods by carriers and has no interest in the freight but receives compensation from the shipper as his agent. The facts of the case would point to CMAS as the culprit. In fact, even the petitioners wrote CMAS entertaining serious doubts as to whether they were responsible for the mix-up. But the court cannot rule on the possible liability of CMAS as such is not at issue in this case and there has not been convincing evidence on the matter. (3) Petitioners contended that TWA by agreeing to transport the remains, it made itself a party to the contract of carriage nad was therefore bound by the airway bill. When TWA shipped the remains ten hours earlier than scheduled, it allegedly violated the terms of the airway bill which compounded, if not directly caused, the switching of the caskets. The EEs of TWA presumably caused the mix-up by loading the wrong casket on the plane. TWA must be presumed negligent unless such is rebutted. TWA contends that it faithfully complied with the obligations under the airway bill. Said faithful compliance was not affected by the fact that the remains were shipped on an earlier flight as there was no fixed time for completion of carriage stipulated on. TWA did not undertake to carry the cargo aboard any specified aircraft, in view of the condition on the back of the airway bill, which provides that " xxx no time is fixed for the completion of the carriage, xxx and that Carrier may without notice substitute alternate carriers or aircrafts xxx." SC : TWA's contention is tenable. TWA can use substitute aircraft, even without notice and without the assumption of any obligation whatsoever to carry the goods on any specified aircraft. This is clearly sanctioned by the contract of carriage. When a CC undertakes to convey goods, the law implies a contract that they shall be delivered at destination within a reasonable time, in the absence of any agreement as to the time of delivery. In case at bar, no special contract for prompt delivery was entered into by the parties. Condition No. 5 is binding on the plaintiff even if it is printed at the back of the airway bill. This is in the nature of a contract of adhesion. However, such condition only serves to insulate the carrier from liability in those instances when the changes in routes, flights and schedules are clearly justified by the peculiar circumstances of a particular cae, or by general transportation practices, customs and usages, or by contingencies, emergencies in aviation, such as weather turbulence, mechanical failure, reqts. of national security and the like. In this case, the delay in the delivery of the remains cannot be attributed to the fault, negligence or malice of private respondents. When TWA shipped the remains on an earlier flight, it did so in the exercise of sound discretion and with reasonable prudence -- they wanted to assure that the shipment would be received in SF in sufficient time for transfer to PAL. TWA knew of the urgency of the shipment due to the notation on the airway bill : "xxx Please return bag first available flight to SFO." (4) Petitioners alleged that private respondents are liable for tort on account of humiliating, arrogant and indifferent acts of their officers and personnel. They contended that there was no reason for the personnel to disclaim knowledge of the arrival or whereabouts of the body other than their sheer arrogance, indifference and extreme insensitivity to their feelings. SC: It affirmed the CA's findings that TWA EEs did not deal with petitioners in a grossly humiliating, arrogant or indifferent manner as to amount to BF or malice. It must be pointed out that the lamentable actuations of TWA's EEs leave much to be desired, particularly so given the grief of petitioners, their tension and anxiety wrought by the confusion and the fear about where their mother's remains were. Airline companies are sternly admonished to strictly require their personnel to be more accommodating to passengers and the general public. Petitioners agonized for 5 hours unattended to and without any assurance from the EEs of TWA. Common sense should have dictated that they exert a little extra effort in making more extensive inquiry, by themselves or through their superiors, rather than just shrug off the promblem with a callous and uncaring remark that they had no knowledge about it. The foregoing observations do not appear to be applicable to PAl and its EEs.
6. Attorney's Fees and Interest 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; (3) In criminal cases of malicious prosecution against the plaintiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the defendant acted in gross and evident BF in refusing to satisfy the plaintiff's plainly valid, just and demandable claim; (6) In actions for legal support; (7) In actions for the recovery of wages or household helpers, laboreres and skilled workers; (8) In actions for indemnity under workmen's compensation and employer's liability laws; (9) In a separate civil action to recover civil liability arising from a crime; (10) When at least double judicial costs are awarded; (11) In any other cases where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. In all cases, the attorney's fees and expenses of litigation must be reasonable. Art. 2210. Interest may, in the discretion of the court, be allowed upon damages awarded for breach of contract. 4 Agbayani: Damages arising from death; factors to be considered 1. number of years on the basis of which the damages shall be computed 2. the rate at which the losses sustained should be fixed. In the determination of the losses or damages sustained by dependents and heirs of the deceased, said damages consist not of the full amount of his earnings, but of the support they received or would have received from him had he not died in consequence of the negligence of defendant. In fixing the amount of support, only net earnings are to be considered-- total earnings less expenses necessary in the creation of such earnings less living and incidental expenses Damages recoverable when death occurs due to commission of crime.-- (1) indemnity for the death of victim (P 50T); (2) 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. Indemnity arising from the fact of death is fixed whereas the others are still subject to the determination of the court based on evidence presented; indemnity for death is distinct and separate from the other forms of indemnity Common carrier not liable for moral damages to passenger injured due to negligence of driver.-- A CC's bad faith is not to be lightly inferred from a mere finding that the contract was breached through negligence of the CC's employees (Fores vs Miranda) Extent of liability of air carrier for death of passenger: (1) where there was no satisfactory explanation on the part of PAL as to how and why the accident occurred, the presumption is that it was at fault, under Art. 1756 (2) liability for lost earnings are the deceased passenger's net earnings during his expected length of life based on accepted mortality tables (compensatory damages) (3) PAL is not liable for exemplary damages where it was not proven that it acted in a wanton, fraudulent, reckless, oppressive or malevolent manner [Davila vs PAL]
The relation between CC and passenger involves special and peculiar obligations and duties, differing in kind and degree, from those of almost every legal or contractual relation. On account of the peculiar situation of the parties, the law implies a promise and imposes upon the CC the corresponding duty of protection and courteous treatment. Therefore, the CC is under the absolute duty of protecting his passengers from assault or insult by himself or his servants. A contract to transport passengers is quite different in kind and degree from any other contractual relation. And this, because of the relation which an air carrier sustains with the public. Its business is mainly with the traveling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the CC's employees naturally could give ground for an action for damages. Passengers do not contract merely for transportation. They have a right to be treated by the CC's EEs with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rude or discourteous conduct on the part of EEs towards a passenger gives the latter an action for damages against the CC. Damages caused by CC on third persons.-- Negligence refers to the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justify demand, whereby such other person suffers injury Common carrier is liable only for damages that are natural and probable consequence of breach of contract.-- Where the CC is guilty of a breach of contract, but acted in GF, it is liable only for the natural and probable consequences of the breach and which the parties had foreseen or could have reasonably foreseen at the time the obligation was constituted (includes medical, hospital expenses) Actual damages.-- (1) lost income.-- includes income to be earned by the injured passenger or deceased passenger had he finished his course (could have been foreseen) (2) sum being carried by the deceased passenger which was lost (3) funeral expenses (4) attorney's fees (5) loss of merchandise carried by the deceased (6) loss of baggage and personal belongings Exception to rule that CC is not liable for moral damages in breach of contract: (1) where the mishap results in death of the passenger (2) where it is proved that the CC was guilty of fraud or BF, even if death does not result Ex. where because of the BF of the CC, the passenger suffered social humiliation, wounded feelings, serious anxiety and mental anguish Under 2206, the heirs of the deceased passenger may demand moral damages in an amount commensurate with the mental anguish suffered by them xxx In a case where the passenger suffers physical injuries because of the CC's injuries, he cannot recover moral damages for such breach of contract since it does not fall under any of the cases where moral damages are recoverable under Art. 2219 xxx In determining the amount of moral damages, the TC may consider the nature and extent of the injuries and the suffering occasioned by them and the duration thereof. The appellate court should not interfere unless such is palpably and scandalously excessive so as to indicate that it was the result of passion, prejudice or corruption on the part of the TC BF justifying moral damages must be in the securing, execution and enforcement of contract of carriage. BF cannot be imputed but must be alleged and proved; mere carelessness of the CC's driver does not per se constitute or justify an inference of malice or BF on the part of the CC xxx
CC is subsidiarily liable for moral damages in actions ex delicto or where the action is based upon its liability arising from a crime xxx
CC is not ordinarily liable for exemplary or corrective damages based upon the wrongful act of its EE or driver where it did not have anything to do with the wrongful act or had not previously authorized or subsequently ratified such act (Art. 2332) This cannot be presumed but must be proven by evidence; exemplary damages cannot be recovered as a matter of right Nominal and exemplary damages awarded for willful breach of contract committed through agent or EE xxx
Where the CC has incurred in delay in the delivery of the luggage of the offended party, but it had not acted in BF nor been guilty of gross negligence, the offended party is not entitled to moral nor exemplary damages but only to the limited amount printed in the plane ticket where the offended party had not declared a higher value nor paid addtl. transpo charges Liability of air carriers for moral and exemplary damages.-- [Ortigas vs Lufthansa] (1) Under the pool arrangement among different airlines of the IATA agreement of which Alitalia and Lufthansa are signatories, both airlines are constituted as agents of each other in the issuing of tickets and other matters pertaining to their relations with those who would need their services. (2) When it comes to contracts of common carriage, inattention and lack of care on the part of the CC resulting in the failure of the passenger to be accommodated in the class contracted for amounts to BF or fraud which entitles the passenger to the award of moral damages. Where the passenger's seat was given to a white passenger, there is willful breach giving rise to an action for moral damages. (3) Exemplary damages were awarded. Defendant as an airline should be made to pay an amount that can really serve as a deterrent against a seeming pattern of indifference and unconcern, and discrimination for racial reasons, discernible in the treatment of air passengers.
xxx
[KLM vs CA] A provision in passage ticket that carriage by successive air carriers is to be regarded as a single operation makes the ticket-issuing carrier liable for tortious conduct of other carriers xxx
Exemplary damages may be awarded where the vehicle involved in the accident operated under the kabit system, which is a pernicious system in violation of law and which is in fraud of the traveling public which has a right to expect that the holder of the certificate of convenience be the one to actually operate his transport line. xxx
CC is liable for nominal damages for its failure to bring passengers to their destination which is in violatin of their right as passengers. xxx
The CC is liable for the negligence of his driver in case of breach of contract and cannot avail of the defense that he exercised due diligence in the employment of his driver. The action for breach of contract imposes on the CC a presumption of liability upon mere proof of injury to the passenger. xxx
An action for damages against CC for breach of contract is primary and independent and does not depend upon the previous conviction of the driver or EE. Indemnification in a criminal prosecution is distinct from that awarded as damages in a civil action. Other Principles : The offended party has the option between an action for enforcement of civil liability based on culpa criminal and an action for recovery of damages based on culpa aquiliana. Responsibility for negligence under the Civil Code is entirely separate from negligence under the Penal Code. An independent civil action based on quasi-delict against the ER-operator of a negligent driver cannot be suspended by the filing of a criminal action against the driver. Death of driver is not a hindrance to a separate quasi-delict action against the CC-employer There is no error in awarding civil damages against a driver in a criminal case even when a separate civil action was filed against the ER. Culpa contractual and an act or omission punishable by law are two distinct sources of obligation. III. CODE OF COMMERCE PROVISIONS ON OVERLAND TRANSPORTATION COMMERCIAL CONTRACTS FOR TRANSPORTATION OVERLAND A. Scope of Overland Transportation B. Nature of Contract
(1) transportation of merchandise is always commercial (2) transportation of person or news is commercial only when the CC is a merchant or is habitually engaged in transportation for the public * principal requirement : the CC is a merchant or is habitually engaged in transportation for the public; the object carried is of little importance A contract of air transportation may be regarded as commercial since it is analogous to land and water transportation. The reason for its non-inclusion in the Code of Commerce was that at the time of its promulgation, air transportation on a commercial basis was not yet known. C. Effect of Civil Code Art. 1766. In all matters not regulated by this Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by special laws. (New Civil Code.) Art. 2270. The following laws and regulations are hereby repealed: (2) The provisions of the Code of Commerce governing sales, partnership, agency, loan, deposit and guaranty; (4) All laws, Acts, parts of Acts, rules of court, executive orders, and administrative regulations which are inconsistent with this Code. (Ibid.) There is now no distinction between a transportation contract of a CC under the Civil Code and a transportation contract under the Code of Commerce The New Civil Code does not expressly repeal the provisions of the Code of Commerce on overland transportation; it makes such provisions suppletory to the provisions of the Civil Code on CCs. D. Contract of Carriage 1. Bill of Lading (a) Definition, Subject Matter Art. 352. The bills of lading or tickets in cases of transportation of passengers may be diverse, one for persons and another for baggage; but all of them shall bear the name of the carrier, the date of shipment, the point of departure and arrival, the cost, and with regard to the baggage, the number and weight of the packages, with such other statements which may be necessary for their easy identification. A bill of lading may defined as a written acknowledgment of the receipt of goods and an agreement to transport and to deliver them at a specified place to a person named or on his order. It comprehends all methods of transportation. Nature : (1) each bill is a contract in itself and the parties are bound by its terms (2) a bill of lading is also a receipt (3) it is also a symbol of the goods covered by it
Many of the items required in a bill of lading may be omitted with much advantage to commerce, which aims to have the greatest number of transactions in the last possible time especially in cases where there are tariffs or regulations issued by the carrier company. In this case, the circumstances relative to price, term and conditions of carriage may be omitted and simple reference be made to the tariff and regulations under which the transportation is to be made. (Art. 351) The form of the bill of lading is not material : if it contains an acknowledgment by the carrier of the receipt of goods for transportation, it is in legal effect, a bill of lading A ticket issued by a carrier to a passenger is not only a receipt for the fare paid but is the contract between the passenger and the carrier, of the passenger's right to ride in the CC's vehicle Classes of bills of lading : 1. negotiable B/L - where it is stated that the goods will be delivered to the bearer, or to the order of any person named in such document 2. non-negotiable B/L - where the goods are to be delivered to a specified person 3. clean B/L - does not indicate any defect in the goods 4. foul B/L - indicates that the goods covered by it are in bad condition 5. spent B/L - covers goods that have already been delivered by the CC without a surrender of a signed copy of the B/L; the subsequent delivery of the spent B/L cannot give to the buyer of it any actual control of the goods, or anything which can fairly be called delivery 6. through B/L - issued by the CC 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 B/L is honored by the subsequent interested carriers who do not issue their own ladings 7. on board B/L - states that the goods have been received on board the vessels which is to carry the goods 8. received for shipment B/L - states that the goods have been received for shipment with or w/o specifying the vessel by which the goods are to be shipped; issued when conditions are not normal and there is an insufficiency of shipping space 9. custody B/L - issued by the CC to whom the goods have been delivered for shipment but the steamer indicated in the B/L which is to carry the goods has not yet reached the port where the goods are held for shipment 10. port B/L - issued by the CC to whom the goods have been delivered and the steamer indicated in the B/L by which the goods are to be shipped is already in the port where the goods are held for shipment
1. such title to the goods as the person negotiating the bill had or had ability to convey to a buyer in good faith for value 2. direct obligation of the CC issuing the bill to hold possession of the goods for him according to the terms of the B/L as fully as if such CC contracted directly with him
1. as against the transferor, title to the goods subject to the terms of any agreement with the transferor 2. right to notify the CC who issued the bill and thereby acquire the direct obligations of such CC to hold possession of the goods for him accdg to the terms of the document; prior to notification of the CC, the title of the transferee may be defeated by levy upon the goods or a subsequent purchaser from the transferor of a subsequent sale of the goods by a transferor (c) Function Art. 353. The legal basis of the contract between the shipper and the carrier shall be the bills of lading, by the contents of which all disputes which may arise with regard to their execution and fulfillment shall be decided, no exceptions being admissible other than forgery or material errors in the drafting thereof. After the contract has been complied with, the bill of lading shall be returned to the carrier who may have issued it, and by virtue of the exchange of this title for the article transported, the respective obligations and actions shall be considered canceled, unless the same act the claims which the contracting parties desire to reserve are reduced to writing, exception being made of the provisions of Article 366. In case the consignee, upon receiving the goods, cannot return the bill of lading subscribed by the carrier, due to its loss or for any other cause, he shall give said carrier a receipt for the goods delivered, this receipt producing the same effect as the return of the bill of lading. B/L constitutes the legal evidence of the contract of transportation --> all disputes between the parties regarding the execution and performance of the contract shall be decided by the contents of the B/L issued by the CC --> the law admits no exceptions other than falsity and material error in the drafting of the B/L As a contract expressing the terms and conditions upon which the property is to be transported, it is to be regarded as merging all prior and contemporaneous agreements of the parties, and in the absence of fraud, concealment or mistake, its terms or legal import, when free from ambiguity cannot be explained nor added to by parol (Parol Evidence Rule) 2. Refusal to Transport Art. 356. Carriers may refuse to accept packages which appear unfit for transportation; and if said transportation is to be made by railway, and the shipment is insisted on, the company shall carry them, being exempt from all liability if its objections are so stated in the bill of lading. CC cannot ordinarily refuse to carry a particular class of goods to the prejudice of the traffic in those goods exception : when the goods or packages are unfit for transportation --> if transpo is insisted upon, railroads cannot refuse to carry them, but they shall be exempt from all responsibility if their objections are made to appear in the B/L 3. Doubtful declaration of contents
Bill not essential to contract : While under 350, the shipper and the CC may mutually demand that a B/L is made, it is not obligatory. The fact that a B/L is not issued does not preclude the existence of a contract of transpo. Provided there is a meeting of the minds and from such meeting arise rights and obligations, there should be no limitations as to form. The B/L is not essential to the contract, although it may become obligatory by reason of the regulations of companies or as a condition imposed in the contract by agreement of the parties themselves Where no B/L is issued, the disputes between the parties shall be decided accdg. to the rules laid down in Art. 354 E. Responsibility of the Carrier
Where there is an agreed route, the CC shall be liable for losses due not only to the change of route but also to other causes, together with the indemnity agreed upon --> the CC may not avail of the contract limiting his liability in case of unjustified change of route Where there is no agreed route, the carrier must select one which may be the shortest, least expensive and practically passable 3. Care of Goods Article 361. The merchandise shall be transported at the risk and venture of the shipper, if the contrary was not expressly stipulated. Therefore, all damages and impairment suffered by the goods during the transportation, by reason of accident, force majeure, or by virtue of the nature or defect of the articles, shall be for the account and risk of the shipper. The proof of these accidents is incumbent on the carrier. When goods are delivered on board a ship in good order and condition, and the shipper-owner delivers them to the shipper in bad order and condition, it then devolves upon the shipowner to both allege and prove that the goods were damaged by reason of some fact which legally exempts him from liability The shipper will suffer losses and deteriorations arising from fortuitous event, force majeure, or inherent nature and defects of the goods (at the risk and venture of the shipper) It does not mean that the CC is free from liability for losses and deterioration arising from his negligence or fault, which is presumed Relate this with Art. 1734 and 1735 of the Civil Code
The shipper then has the burden to prove that although the injury may have been occasioned by one of the excepted causes, yet still the CC is responsible if the injury might have been avoided by the exercise of reasonable skill and attention on his part Art. 362 is in consonance with Art. 1735, NCC --> except that under 1732, proof of extra-o diligence is required and not just ordinary diligence as implied under 362 Where goods run risk of loss due to their nature, Art. 362 provides for the remedy of sale by the CC of the goods, placing them for the purpose at the disposal of the judicial authority or of the officials designated by special provisions Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same is due to any of the ff. 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; (5) Order or act of competent public authority. (New Civil Code.) Art. 1735. In all cases other than those mentioned in Nos. 1,2,3,4, and 5 of the preceding article, if the goods are lost, destroyed or deteriorated, CCs are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required in Art. 1733. (Ibid.) 4. Delivery (a) Condition of Goods Art. 363. With the exception of the cases prescribed in the second paragraph of Article 361, the carrier shall be obliged to deliver the goods transported in the same condition in which, according to the bill of lading, they were at the time of their receipt, without any damage or impairment, and should he not do so, he shall be obliged to pay the value of the goods not delivered at the point where they should have been and at the time the delivery should have taken place. If part of the goods transported should be delivered the consignee may refuse to receive them, when he proves that he cannot make use thereof without the others. Duty to deliver goods : duty to deliver the goods in the same condition in which accdg. to the B/L they were found at the time they were received, without damage or impairment --> otherwise, the CC is liable for damages Yüklə 1,24 Mb. Dostları ilə paylaş:
|