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CUEVAS Maritime Commerce Reviewer
CUEVAS Maritime Commerce Reviewer
CUEVAS Maritime Commerce Reviewer
The inability to 1. Lack of provisions The shipowner or Zones of Time in the Collision of Vessels
continue voyage is due to negligence to ship agent is liable in 1. First zone – covers all time up to the moment when risk of collision
due to lack of carry according to case of unlawful begins.
provisions, well- usage and customs; arrival under stress. No rule is as yet applicable for none is necessary. Each vessel is
founded fear of 2. Risk of enemy But they shall not be free to direct its course as it deems best without reference to the
seizure, privateers, not well known or liable for the movements of the other vessel.
pirates, or accidents manifest damages caused by 2. Second zone – time between moment when risk of collision begins
of the sea disabling 3. Defect of vessel reason of a lawful and moment it becomes a practical certainty.
it to navigate. (Art. due to improper arrival. (Art. 821) It is in this period where the vessel is required to keep away and
819) repair; and avoid the danger
4. Malice, 3. Third zone – time when collision is certain and time of impact.
negligence, lack of An error in this zone would no longer be legally consequential.
foresight or skill of The vessel which has forced the privileged vessel into danger is
captain. (Art. 820) responsible even if the p.vessel committed an error within that zone.
Error in Extremis - sudden movement made by a faultless vessel
It is the duty of the captain to continue the voyage without delay during the third zone of collision with another vessel which is at fault
after the cause of the arrival under stress has ceased failing in such during the 2nd zone. Even if such sudden movement is wrong, no
duty renders him liable. However, in case the cause has been risk of responsibility will fall on said faultless vessel. (Urrutia and Co. v. Baco
enemies, there must first be an assembly before departure. (Art. 825) River Plantation Co., 26 PHIL 632)
Steps:
1. Captain should determine during the voyage if there is well Cases Covered By Collision and Allision
founded fear of seizure, privateers and other valid grounds; 1. One vessel at fault
2. Captain shall assemble the officers and summon the persons Vessel at fault is liable for damage caused to innocent vessel as well
interested in the cargo who may attend the meeting but as damages suffered by the owners of cargo of both vessels. (Art.
without a right to vote; 826)
3. The officers shall determine and agree if there is well- 2. Both vessels at fault
founded reason after examining the circumstances. The Each vessel must bear its own loss, but the shippers of both vessels
captain shall have the deciding vote; may go against the shipowners who will be solidarily liable. (Art. 827)
4. The agreement shall be drafted and the proper minutes shall 3. Vessel at fault not known
be signed and entered in the log book; Each vessel must bear its own loss, but the shippers of both vessels
5. Objections and protests shall likewise be entered in the may go against the shipowners who will be solidarily liable. (Art. 828)
minutes. Doctrine of Inscrutable Fault – In case of collision where it
cannot be determined which between the two vessels was at
COLLISION fault, both vessels bear their respective damage, but both should
Impact of two vessels both of which are moving. be solidarily liable for damage to the cargo of both vessels.
4. Third vessel at fault
Allision The third vessel will be liable for losses and damages. (Art. 831)
Impact between a moving vessel and a stationary one. 5. Fortuitous event/force majeure
No liability. Each bears its own loss. (Art. 830)
Nautical Rules to Determine Negligence
1. When two vessels are about to enter a port, the farther one must The doctrine of res ipsa loquitur applies in case a moving vessel
allow the nearer to enter first; if they collide, the fault is strikes a stationary object, such as a bridge post, dock, or navigational
presumed to be imputable to the one who arrived later, unless it aid. (Far Eastern Shipping v. CA, Luzon Stevedoring vs. CA)
can be proved that there was no fault on its part.
2. When two vessels meet, the smaller should give the right of way Even if the cause of action against the common carrier is based on
to the larger one. quasi-delict, the defense of due diligence in the selection and
3. A vessel leaving port should leave the way clear for another supervision of employees is unavailing in case of a maritime tort
which may be entering the same port. resulting in collision. It is not a civil tort governed by the Civil Code but
4. The vessel which leaves later is presumed to have collided against a maritime one governed by Arts. 826-839 of the Code of Commerce.
one which has left earlier. (Manila Steamship vs. Insa Abdulhaman)
5. There is a presumption against the vessel which sets sail in the
night. Doctrine of Last Clear Chance and Rule on Contributory Negligence
6. There is a presumption against the vessel with spread sails which cannot be applied in collision cases because of Art.827 of the Code of
collides with another which is at anchor and cannot move, even Commerce. (Notes and Cases on the Law on Transportation and Public
when the crew of the latter has received word to lift anchor, Utilities, Aquino, T. & Hernando, R.P. 2004 ed.)
when there was not sufficient time to do so or there was fear of a
greater damage or other legitimate reason. MARITIME PROTEST
7. There is a presumption against an improperly moored vessel. Condition precedent or prerequisite to recovery of damages arising
8. There is a presumption against a vessel which has no buoys to from collisions and other maritime accidents.
indicate the location of its anchors to prevent damage to vessels It is a written statement made under oath by the captain of a vessel
which may approach it. after the occurrence of an accident or disaster in which the vessel or
9. Vessels must have “proper look-outs” or persons trained as such cargo is lost or damaged, with respect to the circumstances attending
and who have no other duty aside therefrom. (Smith Bell v. CA) such occurrence, for the purpose of recovering losses and damages.
Excuses for not filing protest: 1) where the interested person is not
Nautical Rules as to Sailing Vessel and Steamship on board the vessel; and 2) on collision time, need not be protested.
1. Where a steamship and a sailing vessel are approaching each (Art. 836)
Cases applicable: APPLICABILITY
1. Collision (Art. 835); The transportation must be:
2. Arrival under stress (Art. 612(8)); 1. Water/maritime transportation;
3. Shipwrecks (Arts. 612(15), 843); 2. for the carriage of goods; and
4. Where the vessel has gone through a hurricane or when the 3. overseas/international/foreign (from foreign port to
captain believes that the cargo has suffered damages or Philippine port).
averages (Art. 624). It can be applied in domestic sea transportation if agreed upon by
Who makes: Captain the parties. (Clause paramount or paramount clause)
When made: within 24 hours from the time the collision took place.
Before whom made: competent authority at the point of collision or IMPORTANT FEATURES:
at the first port of arrival, if in the Philippines and to the Philippine 1. Amount of carrier’s liability
consul, if the collision took place abroad. (Art. 835) 2. Notice of damage
3. Prescriptive period
SHIPWRECK
It is the loss of the vessel at sea as a consequence of its grounding, AMOUNT OF CARRIER’S LIABILITY
or running against an object in sea or on the coast. It occurs when the Under the Sec. 4(5), the liability limit is set at $500 per package or
vessel sustains injuries due to a marine peril rendering her incapable of customary freight unit unless the nature and value of such goods is
navigation. declared by the shipper. This is deemed incorporated in the bill of
If the wreck was due to malice, negligence or lack of skill of the lading even if not mentioned in it. (Eastern Shipping vs. IAC, 150 SCRA
captain, the owner of the vessel may demand indemnity from said 463)
captain. (Art. 841) Note that Art. 1749, NCC applies to domestic/inter-island/coastwise
The rules on collision or allision, as may be pertinent, can equally trade.
apply to shipwrecks.
NOTICE OF DAMAGE (SEC. 3(6))
SPECIAL CONCEPTS Rules:
ARRASTRE SERVICE a. Patent damage: shipper should file a claim with the carrier
A contract for the unloading of goods from a vessel. immediately upon delivery
Applicability: Overseas trade only. (Commercial Law Review, C. b. Latent damage: shipper should file a claim with the carrier within
Villanueva, 2004 ed.) three days from delivery.
Significance: When a person brings in cargo from abroad, he
cannot unload and deliver the cargo by himself. The unloading must Note: The filing of a notice of claim is not a condition precedent.
be done by the arrastre operator, which will then deliver the cargo to
the importer. (Commercial Law Review, C. Villanueva, 2004 ed.) PRESCRIPTIVE PERIOD
Nature of business: It is a public utility, discharging functions Action for loss or damage to the cargo should be brought within one
which are heavily invested with public interest. year after:
Liability: a. Delivery of the goods (delivered but damaged goods); or
1. Similar to a warehouseman (Lua Kian v. Manila Railroad) b. The date when the goods should have been delivered (non-
2. Similar to a common carrier (Northern Motors v. Prince Line) delivery). (Sec. 3[6])
3. Solidary liability with the common carrier
“Loss or Damage” as applied to the COGSA contemplates a situation
Note: In order that the arrastre operator may be held liable, the where no delivery at all was made by the shipper of the goods
consignee must prove that the damage was due to the negligence and because the same had perished, gone out of commerce, or
while the goods are in the custody of the arrastre operator. (Hartford disappeared in such a way that their existence is unknown or they
Fire Insurance v. E. Razon, Inc.) cannot be recovered. Thus, it is inapplicable in case of misdelivery or
conversion. (Ang vs. American Steamship Agencies Inc.) and damage
STEVEDORING SERVICE arising from delay or late delivery (Mitsui O.S.K. Lines Ltd. vs. CA). In
The carriage of goods from the warehouse or pier to the holds of such instance the, Civil Code rules on prescription shall apply.
the vessel. (Chief of Staff vs. CIR)
As understood in the port business, the term consists of the The one-year prescriptive period is suspended by:
handling of cargo from the hold of the ship to the dock, in case of pier- 1. The express agreement of the parties (Universal Shipping
side unloading; or to a barge, in case of unloading at sea. (Anglo-Fil Lines, Inc. vs. IAC, 188 SCRA 170)
Trading Corp. vs. Lazaro) 2. The filing of an action in court until it is dismissed. (Stevens
The loading on the ship of outgoing cargo is also part of stevedoring & Co. vs. Nordeutscher Lloyd, 6 SCRA 180)
work. (Ibid.)
The one-year period shall run from delivery of the last package and
CONTAINERIZATION/ “SAID-TO-CONTAIN”/ “SHIPPER’S is not suspended by extrajudicial demand. (Dole Phils.,Inc. vs.
LOAD AND COUNT” SYSTEM Maritime Co.,148 SCRA 118)
System whereby the shipper loads his cargoes in a specially
designed container, seals the container and delivers it to the carrier for The one-year period shall run from delivery to the arrastre operator
transportation. The carrier does not participate in the counting of the and not to the consignee. (Union Carbide Phils, Inc. vs. Manila
merchandise for loading into the container, the actual loading, and the Railroad Co.,SCRA 359)
sealing of the container. (US Lines v. Comm. Of Customs, ICTSI v.
Prudential Guarantee) The insurer exercising its right of subrogation is bound by the one-
The matter of quantity, description and conditions of the cargo year prescriptive period. However, it does not apply to the claim
inside the container is the sole responsibility of the shipper, unless against the insurer for the insurance proceeds. (Fil. Merchants Ins.
there is stipulation to the contrary. (US Lines vs. Comm. Of Customs, Co. vs. Alejandro; Mayer Steel Pipe Corp. vs. CA)
Reyma Brokerage v. Phil. Home Assurance)