TABLE FOR ACTIONS AVAILABLE FOR SHIPPER/PASSENGER

BASIS CULPA AQUILIANA CULPA CRIMINAL CULPA CONTRACTUAL

There can be a quasi-delict so long There can be no crime unless

as there is fault or negligence there is a law clearly punishing the
Legal basis of liability resulting in damage act.
or injury to another. It is broader
in scope than crime.

Criminal intent is not necessary for Criminal intent is essential for

quasi delict to exist. Fault or criminal liability to exist.
Criminal intent negligence without intent
will suffice.

Nature of right Right violated is a private right. Right violated is a public one.
violated Quasi delict is a wrongful act Crime is a wrong against the
against a private individual. State.

Every quasi delict gives rise to Some crimes do not give rise to
Liability for liability for damages. liability, e.g., Illegal possession of
damages firearm, contempt.

Proof beyond reasonable

doubt.
Quantum of proof Preponderance of evidence

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Sanction and Reparation or indemnification of Punishment is either
penalty the injury or damage. imprisonment, fine or both;
sometimes other accessory
penalties are imposed.
Nature of Direst, Substantive and Negligence is merely
negligence independent (Rakes vs. incidental to the performance
Atlantic, etc., 7 Phil. 395). of the contractual obligation.
There is a pre-existing
contract or obligation
(Rakes vs. Atlantic, etc., 7
Phil. 395).
Defense of a “good Complete and proper defense NOT a complete and
father of a family” insofar as parents, guardians, proper defense in the
employers are concerned (Art. selection and supervision
2180, last par.) of employees (Cangco vs.
MRC, 38 Phil.
768).
Presumption of NO presumption of negligence. The There is presumption of
negligence injured party must prove negligence as long as it can
the negligence of the defendant be proved that there was
(Cangco vs. MRC, 38 Phil 768). breach of the contract . The
defendant must prove there
Otherwise, the complaint of injured was no negligence in the
party will be dismissed carrying out of the terms of
the contract (Cangco vs. MRC,
38 Phil. 768).

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B.

DEFENSES IN THE CARRIAGE DEFENSES IN THE

OF GOODS CARRIAGE OF PASSENGER

1. ARTICLE 1734 1. EXTRAORDINARY DILIGENCE

A. FORTUITOUS EVENTS A. ACT OF EMPLOYEES

They are extraordinary events not
foreseeable or avoidable, "events that could not GENERAL RULE:
be foreseen, or which, though foresee, were Carrier is liable for the acts of its
employees who may have acted:
inevitable" (CC, 1174; Republic v. Luzon
a. Beyond the scope of their authority; or
Stevedoring Corporation)
b. In violation of the orders of the common
carriers.
 Must be established as the proximate cause
of the loss NOTE:
 No human intervention  Passenger has no duty to inquire
REQUISITES:  Thefts who are employees
1. it must be IMPOSSIBLE to foresee the - - Captain shall be civilly liable to third
event which constitutes the caso fortuito persons for all the thefts committed by the
or if it can be foreseen, it must be crew, reserving the right of action against the
impossible to avoid; guilty party.
2. the cause of the unforeseen and
unexpected occurrence, or of the failure
of the debtor to comply with his
B. ACTS OF OTHER PASSENGERS AND
obligation must be INDEPENDENT of THIRD PERSONS
the human will;
GENERAL RULE:
3. the occurrence must be such as to A common carrier is responsible for injuries
render it impossible for the debtor to caused by a passenger against other
fulfill his obligation in a NORMAL passengers if the common carrier’s employee
manner; and failed to exercise the diligence of a good of a
family to prevent or stop the act or omission.
4. the obligor (debtor) must be free from
any participation in or the C. ACTS OR NEGLIGENCE OF THE
AGGRAVATION of the injury resulting to
PASSENGER
the creditor (Servando v. PH Steam
Common carrier is not liable provided it is
Navigation)
the proximate and only cause.
LIMITATIONS:
1. the natural disaster must also be the CONTRIBUTORY NEGLIGENCE
PROXIMATE and only cause of the Contributing as a legal cause to the
loss (CC, 1739) harm he has suffered
- Mitigates liability
2. the common carrier must EXERCISE
due diligence to prevent or minimize DOCTRINE OF AVOIDABLE CONSEQUENCES
the loss before, during or after the Passenger is required to lessen the
occurrence of the disaster (CC, 1739); damage or injury.
and
ASSUMPTION OF RISK
3. the common carrier has not Passengers must take such risks incident to the
NEGLIGENTLY incurred delay in mode of travel
transporting the goods (CC, 1740)

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 NOTE : Carriers are not insurers of the lives of
their passengers.
NOTE:
 Fire- may not be automatically considered a
natural disaster or calamity as the peril of
the fire is not comprehended within the
exception in Art 1734, Art 1735 of the CC
provides that all cases than those
mentioned in Art 1734, the common carrier
shall be presumed to have been at fault or to
have acted negligently, unless it proves that
it has observed the extraordinary diligence
required by law and even if fire were to be
considered a "natural disaster" within the
meaning of Art 1734 of the CC, it is required
under Art 1739 of the same Code that the
"natural disaster"
 Storm- presence of strong wind does not by
itself justify the conclusion that there is a
storm. There may be cases that strong
winds may be unforeseeable.
 Mechanical defects are not force majeure if
the same were discoverable by regular and
adequate inspections the prevailing rule in
this jurisdiction is that the carrier is liable
to its passenger damages caused by
mechanical defects of the conveyance for
the purposes of this doctrine, the
manufacturer is considered the agent of the
carrier (Necesito v. Paras)
 Hijacking is not among the enumerated
exempting causes stated in Art 1734.
However, common carriers are not held
liable for acts or events which cannot be
foreseen or are inevitable, provided that
they shall have complied with the rigorous
standard of extraordinary diligence (De
Guzman v. CA)
 Tire blowout- Same rule with mechanical
defects
 Other Invalid defenses
1. Explosion
2. Presence of worm and rats
3. Water damage
4. Barratry -act committed by the master or
crew of the ship for some unlawful or fraudulent
purpose.

B. ACTS OF PUBLIC ENEMY

Act of the public enemy in war, whether
international or civil.
Public enemy
The state against which the country is at
war is the country of the carrier.
Available to the carrier as defense under:
a.Civil Code
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b.Carriage of Goods by Sea Act (COGSA)

To be exempted:
1.Act of the public enemy must have been the
proximate and only cause
2.Common carrier must exercise due diligence to
prevent or minimize loss before, during and after the
performance of the act of the public enemy.

NOTE : Act of rebels against the government is

not an act of a public enemy

C. ACT OR OMISSION OF THE SHIPPER OR

OWNER OF THE GOODS

GENERAL RULE
Carrier is not liable provided it is the
proximate and only cause.
Contributory negligence of the shipper
 Contributing as a legal cause to the harm
he has suffered
 Mitigates liability

DEFENSE OF COMMON CARRIER AGAINST

NEGLIGENT SHIPPER OR PASSENGER:

a. Failure of the shipper to disclose the nature

of the goods;
b. Improper marking or direction as to
destination; or
c. Improper loading when he assumes such
responsibility
Doctrine of Avoidable Consequences

D. THE CHARACTER OF THE GOODS OR

DEFECTS IN THE PACKING OR IN THE
CONTAINERS

GENERAL RULE:
Carrier is not liable if the loss occurs because
of the inherent nature of the shipment provided:
a. Goods are received under protest; and
b. Defect must be duly noted in the bill of
lading.

EXCEPTION:
If the carrier accepts the goods knowing the
fact of improper packing of the goods upon
ordinary observation.
 Also applicable to hand carried
baggage.
 Defect – lack of something essential
to completeness
NOTE :

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Inferior – poor quality, mediocre or second rate

E. ORDER OR ACT OF COMPETENT PUBLIC

AUTHORITY.

GENERAL RULE:
Public authority who issued the order must be
duly authorized to be exempted from liability.

EXCEPTION:
Liable if public authority has
a. No authority to issue the subject order; or
b. Exceeded his authority

DOCTRINE OF THE LAST CLEAR CHANCE

 The negligence of both parties (in an accident) will not be considered proximate cause if
the other party has the last clear chance of avoiding injury.
 Cannot be applied against a passengers.
 Applicable in a suit between the owners and driver of colliding vehicle.
NOTICE OF CLAIM (Goods)
An action for damages due to breach of contract, claimant must establish the following:

1. Existence of a perfected contract;

2. Breach thereof by the other contracting party, and
3. Damages which he/she sustained due to the breach.

CLAIM IN OVERLAND TRANSPORT AND COASTWISE SHIPPING

Notice of a claim with the carrier within the period prescribed is a condition precedent for an
action against the carrier in overland transportation.

Periods (Art. 366, Code of Commerce) to file a claim a claim for damage:
a. IMMEDIATELY if the damage is apparent; or
b. Within 24 hours from receipt of the merchandise if the damage is not apparent.

NOTE:
No claim shall be admitted against the carrier with regard to the condition in which the goods
transported in the following circumstances:
1. After the periods mentioned have elapsed; or
2. Transportation charges have been paid

Notice of Claim Mandatory

GENERAL RULE:
 Non-filing bars recovery (within the periods prescribed)
 Condition precedent to the accrual of a right of action against the carrier for damages
cause to the merchandise.
 Non-filing will give no right of action against the carrier in favor of the shipper or
consignee

 Purpose is to give the carrier an opportunity to ascertain whether the claim is a well-
founded one before the goods leave his hands with respect to damages which are
observable upon the exterior of the goods or of the packages in which they are
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 contained and before the goods have been consumed or their identity destroyed in case
in which it is alleged that the damage has been discovered after the goods were received
by its consignee.

COMMENCEMENT
GENERAL RULE :
 There must be delivery of the cargo by the career to the consignee at place of
donation.Not applicable to Misdelivery
 Limited to cases of claims for damages to goods actually turn over by the carrier and
received by the consignee.
 No application when goods not delivered to the consignee.

Effect of stipulation
 Stipulation merely affects the shipper’s remedy and does not affect the liability of the carrier.
 Parties to a contract of carriage may fix by agreement a shorter time for the bringing of suit on
a claim for the loss of or damage to the shipment that that provided by the statute of
limitations.

WAIVER
GENERAL RULE
The carrier may waive that there must be a notice of claim.

 Deemed waive if defendant failed to plead this defense in its answer to the complaint.
 Defense of absence of such notice cannot be raised for the first time at the trial or on appeal.
In case of doubt with respect to the condition of the goods transported:
1. Examined by experts appointed by the parties
2. Third one appointed by the judicial authority in case of disagreement.
*Results to be reduced in writing
3. Deposit merchandise in a safe warehouse by order of the judicial authority
 Requirement of submission of claim is to compel the consignee to make prompt demand for
settlement of alleged damages suffered by the goods while in transport

NOTICE OF CLAIM (AS TO DAMAGE) IN COGSA

1. Immediately upon discharge of the goods if damage is apparent; or
2. Within 3 days from delivery if damage is not apparent. NOTE:
- Period is not mandatory
- Failure to file a notice of claim is not a defense that is available to a common carrier in
international carriage of goods by sea.

PRESCRIPTION:
I. In overland transportation and coastwise shipping
Under the Civil Code:
a.6 years if there is no written contract (Bill of Lading)
b. 10 years if there is a written contract (Bill of Lading)

II. International carriage of goods

- Within one (1) year from discharge of goods
- Shipper, consignee or legal holder of the bill may invoke the prescription period.
- Carrier and ship may use the defense of prescription if action is not brought within the period
prescribed.

Prescription is not suspended by an extra-judicial demand because matters affecting transportation of

goods by sea should be decided in as short a time as possible.

The one year period refers to loss of the cargo and not in:

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 a. Conversion or Misdelivery
b. Delay
In case of collision and cargoes been saved, period starts from the date when to goods should
have been delivered and not from date of collision.

Note: Prescriptive period can be extended by agreement of the parties.

Prescription and Subrogation

- The insurer exercising the right of subrogation is also bound by the one year prescription
period.
- What accrues at the time of payment of the insurer is the right of subrogation and not the
cause of action being pursued against the defendant.
- Subrogation gives the insurer the right to exercise the right of the insured to enforce the right
violated.
Notice of Claim and Prescription in Air Transportation
GENERAL RULE
No specific requirement for a notice of claim. Warsaw Convention applicable.
Periods:
I. To file complaint with carrier within
• Three (3) days from receipt of baggage
• Seven (7) days in case of goods
• If delayed, 14 days after baggage was placed at the disposal of the passenger

NOTE: Notice must precede a suit for enforcement

II. Prescription
• Two (2) years from date of arrival at the destination; or
• Date the aircraft ought to have arrived; or
• Date on which the transportation stopped.

Limiting stipulations
- Limits only the maximum amount fixed under the contract
- Requisites:
a. Reasonable and just under the circumstances
b. Fairly and freely agree

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