[No. 29721. March 27, 1929]
him to rely upon the employees of the
AMANDO MIRASOL, plaintiff and appellant, vs. THE
ROBERT DOLLAR CO., defendant and appellant.
1. 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.
1. 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.
1. 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
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VOL. 53, MARCH 27, 1929
Mirasol vs. Robert Dollar Co.
1.
defendant's ship 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 rendered
by the Second Division on February 13, 1929,  the 1
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
125 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.
________________
 Not reported.
1
126
126 PHILIPPINE REPORTS ANNOTATED
Mirasol vs. Robert Dollar Co.
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.
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VOL. 53, MARCH 27, 1929 127
Mirasol vs. Robert Dollar Co.
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:
1."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.
2."II.The lower court, consequently, also erred
in giving judgment for plaintiff for only
P2,080 instead of P2,380.
3."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:
1."I.The lower court erred in failing to
recognize the validity of the limited liability
clause of the bill of lading, Exhibit 2.
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.
3."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
128 PHILIPPINE REPORTS ANNOTATED
Mirasol vs. Robert Dollar Co.
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."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."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."3.An arbitrary limitation of 250 francs for
the baggage of any steamship passenger,
unaccompanied by any right
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VOL. 53, MARCH 27, 1929 129
Mirasol vs. Robert Dollar Co.
1.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
130 PHILIPPINE REPORTS ANNOTATED
Mirasol vs. Robert Dollar Co.
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
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VOL. 53, MARCH 27, 1929 131
 Mirasol vs. Robert Dollar Co.
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 V
illa-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
132 PHILIPPINE REPORTS ANNOTATED
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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