AMANDO MIRASOL, plaintiff

and appellant, vs. THE ROBERT

DOLLAR CO., defendant and
appellant.
[No. 29721. March 27, 1929]

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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Mirasol vs. Robert Dollar Co.

1. him to rely upon the employees of the 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.

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 STATEMENT
After the promulgation of the decision rendered by the Second Division
on February 13, 1929,1 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.

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 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

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 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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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.
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 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

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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
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 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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Mirasol vs. Robert Dollar Co.
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 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
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 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,

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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."

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 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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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
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 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-

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132 PHILIPPINE REPORTS ANNOTATED

Gaston vs. Talisay-Silay Milling Co.

dray & Co., 42 Phil., 205; Freixas & Co. vs. Pacific Mail Steamship Co.,
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 42 Phil., 198); and I am unable to see any sufficient reason for ignoring
those decisions.

Judgment modified.

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