Mirasol vs. Robert Dollar Co

PHILIPPINE REPORTS ANNOTATED VOLUME 053 16/02/2020, 11(31 PM
[No. 29721. March 27, 1929]
AMANDO MIRASOL, plaintiff and appellant, vs. THE

ROBERT DOLLAR CO., defendant and appellant.
1. WHEN SHIPPER IS NOT BOUND.·Where it appears that

a bill of lading was issued to a shipper containing a clause
limiting the carrier's liability, printed in fine letters on the
back of the bill of lading, which he did not sign and of which
he was not advised, in an action for damages, the shipper is
not bound by the clause which limits the carrier's liability.
2. WHEN BURDEN OF PROOF IS SHIFTED.·Shippers who

are forced to ship goods on an ocean liner, have some legal
rights, and when goods are delivered on board ship in good
order and condition, and the shipowner delivers them to the
shipper in bad order and condition, in an action for
damages, the burden of proof is then shifted, and it devolves
upon the shipowner to both allege and prove that the goods
were damaged by reason of some act which legally exempts
him from liability.
3. REASON FOR RULE.·As to when and how goods were

damaged in transit is a matter peculiarly within the
knowledge of the shipowner and his employees, and to
require the plaintiff to prove as to when and how the
damage was done would force
125
VOL. 53, MARCH 27, 1929 125
Mirasol vs. Robert Dollar Co.
him to rely upon the employees of the defendant's ship
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which in legal effect would be to say that he cannot recover

damages for any reason.
APPEAL from a judgment of the Court of First Instance of

Manila. Diaz, J.
The f acts are stated in the opinion of the court.
Vicente Hilado for plaintiff-appellant.
J. A. Wolfson for defendant-appellant.
STATEMENT
After the promulgation of the decision 1

rendered by the
Second Division on February 13, 1929, the defendant filed
a motion to have the case heard and decided in banc, and
inasmuch as the legal questions involved are important to
the shipping interests, the court thought it best to do so,
After the formal pleas, plaintiff alleges that he is the
owner and consignee of two cases of books shipped in good
order and condition at New York, U. S. A., on board the def
endant's steamship President Garfield, f or transport and
delivery to the plaintiff in the City of Manila, all freight
charges paid. That the two cases arrived in Manila on
September 1, 1927, in bad order and damaged condition,
resulting in the total loss of one case and a partial loss of
the other. That the loss in one case is P1,630, and the other
P700, for which he filed his claims, and defendant has
refused and neglected to pay, giving as its reason that the
damage in question "was caused by sea water." That
plaintiff never entered into any contract with the def
endant limiting defendant's liability as a common carrier,
and when he wrote the letter of September 3, 1927, he had
not then ascertained the contents of the damaged case, and
could not determine their value. That he never intended to
ratify or confirm any agreement to limit the liability of the
defendant. That on September 9, 1927, when the other case
was found, plaintiff filed a claim for the real damage of the
books therein named in the sum of $375.
________________
1 Not reported.
126
126 PHILIPPINE REPORTS ANNOTATED

Plaintiff prays for corresponding judgment, with legal

interest from the filing of the complaint and costs.
For answer the defendant made a general and specific
denial, and as a separate and special defense alleges that
the steamship President Garfield at all the times alleged
was in all respects seaworthy and properly manned,
equipped and supplied, and fit for the voyage. That the
damage to plaintiff's merchandise, if any, was not caused
through the negligence of the vessel, its master, agent,
officers, crew, tackle or appurtenances, nor by reason of the
vessel being unseaworthy or improperly manned, "but that
such damage, if any, resulted from faults or errors in
navigation or in the management of said vessel." As a
second separate and special defense, defendant alleges that
in the bill of lading issued by the defendant to plaintiff, it
was agreed in writing that defendant should not be "held
liable for any loss of, or damage to, any of said merchandise
resulting from any of the following causes, to wit: Acts of
God, perils of the sea or other waters," and that plaintiff's
damage, if any, was caused by "Acts of God" or "perils of the
sea." As a third special defense, defendant quoted clause 13
of the bill of lading, in which it is stated that in no case
shall it be held liable "for or in respect to said merchandise
or property beyond the sum of two hundred and fifty
dollars for any piece, package or any article not- enclosed in
a package, unless a higher value is stated herein and ad
valorem freight paid or assessed thereon," and that there
was no other agreement. That on September 3, 1927 the
plaintiff wrote the defendant a letter as follows:
"Therefore, I wish to file claim of damage to the meager maximum

value that your bills of lading will indemnify me, that is $250 as per
condition 13."
As a fourth special defense, defendant alleges that the

damage, if any, was caused by "sea water," and that the bill
of lading exempts defendant from liability for that cause.
That damage by "sea water" is a shipper's risk, and that

defendant is not liable.
127
VOL. 53, MARCH 27, 1929 127

As a result of the trial upon such issues, the lower court

rendered judgment for the plaintiff for P2,080, with legal
interest thereon from the date of the final judgment, with
costs, from which both parties appealed, and the plaintiff
assigns the following errors:
"I. The lower court erred in holding that plaintiff's

damage on account of the loss of the damaged books
in the partially damaged case can be compensated
with an indemnity of P450 instead of P750 as
claimed by plaintiff.
"II. The lower court, consequently, also erred in giving
judgment for plaintiff for only P2,080 instead of
P2,380.
"III. The lower court erred in not sentencing defendant
to pay legal interest on the amount of the judgment,
at least, from the date of the rendition of said
judgment, namely, January 30, 1928."
The defendant assigns the following errors:
"I. The lower court erred in failing to recognize the

validity of the limited liability clause of the bill of
lading, Exhibit 2.
"II. The lower court erred in holding defendant liable in
any amount and in failing to hold, after its finding
as a fact that the damage was caused by sea water,
that the defendant is not liable for such damage by
sea water.
"III. The lower court erred in awarding damages in favor
of plaintiff and against defendant for P2,080 or in
any other amount, and in admitting, over objection,
Exhibits G, H, I and J."
JOHNS, J.:
Plaintiff's contention that he is entitled to P700 for his

Encyclopedia Britannica is not tenable. The evidence shows
that with the P400 which the court allowed, he could buy a
new set which would contain all of the material and subject
matter of the one which he lost. Plaintiff's third assignment
of error is well taken, as under all of the authorities, he is
entitled to legal interest from the date of his judgment
rendered in the lower court and not the date when it
becomes final. The lower court found
128

that plaintiff's damage was P2,080, and that finding is

sustained by the evidence. There was a total loss of one
case and a partial loss of the other, and in the very nature
of things, plaintiff could not prove his loss in any other way
or manner than he did prove it, and the trial court who
heard him testify must have been convinced of the truth of
his testimony.
There is no claim or pretense that the plaintiff signed
the bill of lading or that he knew of its contents at the time
it was issued. In that situation he was not legally bound by
the clause which purports to limit defendant's liability.
That question was squarely met and decided by this court
in banc in Juan Ysmael & Co., vs. Gabino Barretto & Co.
(51 Phil., 90; see numerous authorities there cited). Among
such authorities is the case of The Kensington decided by
the Supreme Court of the United States January 6, 1902
(46 Law. ed., 190), in which the opinion was written by the
late Chief Justice White, the syllabus of which is as follows:
"1. Restrictions of the liability of a steamship company

for its own negligence or failure of duty toward a
passenger, being against the public policy enforced
by the courts of the United States, will not be
upheld, though the ticket was issued and accepted
in a f oreign country and contained a condition
making it subject to the law thereof, which sustain

such stipulations.
"2. A stipulation in a steamship passenger's ticket,
which compels him to value his baggage, at a
certain sum, far less than it is worth, or, in order to
have a higher value put upon it, to subject it to the
provisions of the Harter Act, by which the carrier
would be exempted f rom all liability therefor from
errors in navigation or management of the vessel or
other negligence, is unreasonable and in conflict
with public policy.
"3. An arbitrary limitation of 250 francs for the
baggage of any steamship passenger,
unaccompanied by any right
129
VOL. 53, MARCH 27, 1929 129

to increase the amount by adequate and reasonable

proportional payment, is void as against public
policy."
Both the facts upon which it is based and the legal

principles involved are square in point in this case.
The defendant having received the two boxes in good
condition, its legal duty was to deliver them to the plaintiff
in the same condition in which it received them. From the
time of their delivery to the defendant in New York until
they were delivered to the plaintiff in Manila, the boxes
were under the control and supervision of the defendant
and beyond the control of the plaintiff. The defendant
having admitted that the boxes were damaged while in
transit and in its possession, the burden of proof then
shifted, and it devolved upon the defendant to both allege
and prove that the damage was caused by reason of some
fact which exempted it from liability. As to how the boxes
were damaged, when or where, was a matter peculiarly and
exclusively within the knowledge of the defendant, and in
the very nature of things could not be in the knowledge of
the plaintiff. To require the plaintiff to prove as to when

and how the damage was caused would force him to call
and rely upon the employees of the defendant's ship, which
in legal effect would be to say that he could not recover any
damage for any reason. That is not the law.
Shippers who are forced to ship goods on an ocean liner
or any other ship have some legal rights, and when goods
are delivered on board ship in good order and condition,
and the shipowner 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; otherwise, the shipper would be left without any
redress, no matter what may have caused the damage.
The lower court in its opinion says:
'The defendant has not even attempted to prove that the two cases
were wet with sea water by fortuitous event,
130

force majeure or nature and defect of the things themselves.

Consequently, it must be presumed that' it was by causes entirely
distinct and in no manner imputable to the plaintiff, and of which
the steamer President Garfield or any of its crew could not have
been entirely unaware."
And the evidence for the defendant shows that the damage
was largely caused by "sea water," from which it contends
that it is exempt under the provisions of its bill of lading
and the provisions of article 361 of the Code of Commerce,
which is as follows:
"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."
In the final analysis, the cases were received by the

defendant in New York in good order and condition, and
when they arrived in Manila, they were in bad condition,
and one was a total loss. The fact that the cases were
damaged by "sea water," standing alone and within itself, is
not evidence that they were damaged by force majeure or
for a cause beyond the defendant's control. The words
"perils of the sea," as stated in defendant's brief apply to
"all kinds of marine casualties, such as shipwreck,
foundering, stranding," and among other things, it is said:
"Tempest, rocks, shoals, icebergs and other obstacles are
within the expression," and "where the peril is the
proximate cause of the loss, the shipowner is excused."
"Something fortuitous and out of the ordinary course is
involved in both words 'peril' or 'accident.'"
Defendant also cites and relies on the case of
Government of the Philippine Islands vs. Ynchausti &
Company (40 Phil., 219), but it appears from a reading of
that case
131
VOL. 53, MARCH 27, 1929 131

that the facts are very different and, hence, it is not in

point. In the instant case, there is no claim or pretense that
the two cases were not in good order when received on
board the ship, and it is admitted that they were in bad
order on their arrival at Manila. Hence, they must have
been damaged in transit. In the very nature of things, if
they were damaged by reason of a tempest, rocks, icebergs,
foundering, stranding or the perils of the sea, that would be
a matter exclusively within the knowledge of the officers of
defendant's ship, and in the very nature of things would
not be within plaintiff's knowledge, and upon all of such
questions, there is a failure of proof.
The judgment of the lower court will be modified, so as
to give the plaintiff legal interest on the amount of his
judgment from the date of its rendition in the lower court,
and in all other respects affirmed, with costs. So ordered.
Johnson, Malcolm, Ostrand, Romualdez, and Villa-

Real, JJ., concur.
STREET, J., dissenting in part:
I gave a hesitating adherence to the decision of this case in

division, and upon further reflection, I am now constrained
to record my belief that the decision is in part erroneous. I
agree with the court that the defendant is liable to the
plaintiff, but I think that its liability is limited, under
clause 13, printed on the back of the bill of lading, to the
amount of 250 dollars for each of the two boxes of books
comprising this consignment. While the law does not
permit a carrier gratuitously to exempt itself from liability
for the negligence of its servants, it can effectually do so for
a valuable consideration; and where freight rates are
adjusted upon the basis of a reasonable limited value per
package, where a higher value is not declared by the
shipper, the limitation as to the value is binding. This court
in two well considered decisions has heretofore upheld a
limitation of exactly the character of that indicated in
clause 13 (H. E. Heacock Co. vs. Macon-
132

Gaston vs. Talisay-Silay Milling Co.
dray & Co., 42 Phil., 205; Freixas & Co. vs. Pacific Mail
Steamship Co., 42 Phil., 198); and I am unable to see any
sufficient reason for ignoring those decisions.
Judgment modified.
_____________
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PHILIPPINE REPORTS ANNOTATED VOLUME 053 16/02/2020, 11(31 PM

[No. 29721. March 27, 1929]

AMANDO MIRASOL, plaintiff and appellant, vs. THE

1. WHEN SHIPPER IS NOT BOUND.·Where it appears that

2. WHEN BURDEN OF PROOF IS SHIFTED.·Shippers who

3. REASON FOR RULE.·As to when and how goods were

VOL. 53, MARCH 27, 1929 125

Mirasol vs. Robert Dollar Co.

him to rely upon the employees of the defendant's ship

which in legal effect would be to say that he cannot recover

APPEAL from a judgment of the Court of First Instance of

After the promulgation of the decision 1

126 PHILIPPINE REPORTS ANNOTATED

Plaintiff prays for corresponding judgment, with legal

"Therefore, I wish to file claim of damage to the meager maximum

As a fourth special defense, defendant alleges that the

That damage by "sea water" is a shipper's risk, and that

VOL. 53, MARCH 27, 1929 127

As a result of the trial upon such issues, the lower court

"I. The lower court erred in holding that plaintiff's

The defendant assigns the following errors:

"I. The lower court erred in failing to recognize the

Plaintiff's contention that he is entitled to P700 for his

128 PHILIPPINE REPORTS ANNOTATED

that plaintiff's damage was P2,080, and that finding is

"1. Restrictions of the liability of a steamship company

making it subject to the law thereof, which sustain

VOL. 53, MARCH 27, 1929 129

to increase the amount by adequate and reasonable

Both the facts upon which it is based and the legal

the plaintiff. To require the plaintiff to prove as to when

130 PHILIPPINE REPORTS ANNOTATED

force majeure or nature and defect of the things themselves.

"Merchandise shall be transported at the risk and venture of the

"The proof of these accidents is incumbent on the carrier."

In the final analysis, the cases were received by the

VOL. 53, MARCH 27, 1929 131

that the facts are very different and, hence, it is not in

and in all other respects affirmed, with costs. So ordered.

Johnson, Malcolm, Ostrand, Romualdez, and Villa-

STREET, J., dissenting in part:

I gave a hesitating adherence to the decision of this case in

132 PHILIPPINE REPORTS ANNOTATED

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