Transportation laws

Allision

 Impact between a moving vessel and a stationary one.
Nautical Rules to Determine Negligence

1. 
   When two vessels are about to enter a port, the farther one must allow the nearer to enter first; if they collide, the fault is presumed to be imputable to the one who arrived later, unless it can be proved that there was no fault on its part.
   
2. 
   When two vessels meet, the smaller should give the right of way to the larger one.
   
3. 
   A vessel leaving port should leave the way clear for another which may be entering the same port.
   
4. 
   The vessel which leaves later is presumed to have collided against one which has left earlier.
   
5. 
   There is a presumption against the vessel which sets sail in the night.
   
6. 
   There is a presumption against the vessel with spread sails which collides with another which is at anchor and cannot move, even when the crew of the latter has received word to lift anchor, when there was not sufficient time to do so or there was fear of a greater damage or other legitimate reason.
   
7. 
   There is a presumption against an improperly moored vessel.
   
8. 
   There is a presumption against a vessel which has no buoys to indicate the location of its anchors to prevent damage to vessels which may approach it.
   
9. 
   Vessels must have “proper look-outs” or persons trained as such and who have no other duty aside therefrom. (Smith Bell v. CA)
   

Nautical Rules as to Sailing Vessel and Steamship

1. Where a steamship and a sailing vessel are approaching each other from opposite directions, or on intersecting lines, the steamship from the moment the sailing vessel is seen, shall watch with the highest diligence her course and movements so as to be able to adopt such timely means of precaution as will necessarily prevent the two boats from coming in contact.

2. The sailing vessel is required to keep her course unless the circumstances require otherwise.
Zones of Time in the Collision of Vessels

1. 
   First zone – all time up to the moment when risk of collision begins.
   

 No rule is as yet applicable for none is necessary.

2. 
   Second zone – time between moment when risk of collision begins and moment it becomes a practical certainty.
   

 It is in this period where conduct of the vessels is primordial. It is in this zone that vessels must strictly observe nautical rules, unless a departure therefrom becomes necessary to avoid imminent danger.

3. 
   Third zone – time when collision is certain and time of impact.
   

 An error in this zone would no longer be legally consequential.

 Error in Extremis - sudden movement made by a faultless vessel during the third zone of collision with another vessel which is at fault during the 2nd zone. Even if such sudden movement is wrong, no responsibility will fall on said faultless vessel. (Urrutia and Co. v. Baco River Plantation Co., 26 PHIL 632)

Cases Covered By Collision and Allision

1. 
   One vessel at fault
   

 Vessel at fault is liable for damage caused to innocent vessel as well as damages suffered by the owners of cargo of both vessels. (Art. 826)

2. 
   Both vessels at fault
   

 Each vessel must bear its own loss, but the shippers of both vessels may go against the shipowners who will be solidarily liable. (Art. 827)

3. 
   Vessel at fault not known
   

 Each vessel must bear its own loss, but the shippers of both vessels may go against the shipowners who will be solidarily liable. (Art. 828)

 Doctrine of Inscrutable Fault – In case of collision where it cannot be determined which between the two vessels was at fault, both vessels bear their respective damage, but both should be solidarily liable for damage to the cargo of both vessels.

4. 
   Third vessel at fault
   

 The third vessel will be liable for losses and damages. (Art. 831)

5. 
   Fortuitous event/force majeure
   

 No liability. Each bears its own loss. (Art. 830)
 The doctrine of res ipsa loquitur applies in case a moving vessel strikes a stationary object, such as a bridge post, dock, or navigational aid. (Far Eastern Shipping v. CA, Luzon Stevedoring vs. CA)
 Even if the cause of action against the common carrier is based on quasi-delict, the defense of due diligence in the selection and supervision of employees is unavailing in case of a maritime tort resulting in collision. It is not a civil tort governed by the Civil Code but a maritime one governed by Arts. 826-839 of the Code of Commerce. (Manila Steamship vs. Insa Abdulhaman)
 Doctrine of Last Clear Chance and Rule on Contributory Negligence cannot be applied in collision cases because of Art.827 of the Code of Commerce. (Notes and Cases on the Law on Transportation and Public Utilities, Aquino, T. & Hernando, R.P. 2004 ed.)
MARITIME PROTEST

 Condition precedent or prerequisite to recovery of damages arising from collisions and other maritime accidents.

 It is a written statement made under oath by the captain of a vessel after the occurrence of an accident or disaster in which the vessel or cargo is lost or damaged, with respect to the circumstances attending such occurrence, for the purpose of recovering losses and damages.

 Excuses for not filing protest: 1) where the interested person is not on board the vessel; and 2) on collision time, need not be protested. (Art. 836)

 Cases applicable:

1. 
   Collision (Art. 835);
   
2. 
   Arrival under stress (Art. 612(8));
   
3. 
   Shipwrecks (Arts. 612(15), 843);
   
4. 
   Where the vessel has gone through a hurricane or when the captain believes that the cargo has suffered damages or averages (Art. 624).
   

 Who makes: Captain

 When made: within 24 hours from the time the collision took place.

 Before whom made: competent authority at the point of collision or at the first port of arrival, if in the Philippines and to the Philippine consul, if the collision took place abroad. (Art. 835)

SHIPWRECK

 It is the loss of the vessel at sea as a consequence of its grounding, or running against an object in sea or on the coast. It occurs when the vessel sustains injuries due to a marine peril rendering her incapable of navigation.

 If the wreck was due to malice, negligence or lack of skill of the captain, the owner of the vessel may demand indemnity from said captain. (Art. 841)

 The rules on collision or allision, as may be pertinent, can equally apply to shipwrecks.

SPECIAL CONCEPTS

ARRASTRE SERVICE

 A contract for the unloading of goods from a vessel.

 Applicability: Overseas trade only. (Commercial Law Review, C. Villanueva, 2004 ed.)

 Significance: When a person brings in cargo from abroad, he cannot unload and deliver the cargo by himself. The unloading must be done by the arrastre operator, which will then deliver the cargo to the importer. (Commercial Law Review, C. Villanueva, 2004 ed.)

 Nature of business: It is a public utility, discharging functions which are heavily invested with public interest.

 Liability:

1. Similar to a warehouseman (Lua Kian v. Manila Railroad)

2. Similar to a common carrier (Northern Motors v. Prince Line)

3. Solidary liability with the common carrier
Note: In order that the arrastre operator may be held liable, the consignee must prove that the damage was due to the negligence and while the goods are in the custody of the arrastre operator. (Hartford Fire Insurance v. E. Razon, Inc.)