SECOND DIVISION

[G.R. No. 162467. May 8, 2009.]

MINDANAO TERMINAL AND BROKERAGE SERVICE, INC.,

petitioner, vs. PHOENIX ASSURANCE COMPANY OF NEW
YORK/MCGEE & CO., INC., respondent.

DECISION

TINGA, J : p

Before us is a petition for review on certiorari 1 under Rule 45 of the

1997 Rules of Civil Procedure of the 29 October 2003 2 Decision of the Court
of Appeals and the 26 February 2004 Resolution 3 of the same court denying
petitioner's motion for reconsideration.
The facts of the case are not disputed.
Del Monte Philippines, Inc. (Del Monte) contracted petitioner Mindanao
Terminal and Brokerage Service, Inc. (Mindanao Terminal), a stevedoring
company, to load and stow a shipment of 146,288 cartons of fresh green
Philippine bananas and 15,202 cartons of fresh pineapples belonging to Del
Monte Fresh Produce International, Inc. (Del Monte Produce) into the cargo
hold of the vessel M/V Mistrau. The vessel was docked at the port of Davao
City and the goods were to be transported by it to the port of Inchon, Korea
in favor of consignee Taegu Industries, Inc. Del Monte Produce insured the
shipment under an "open cargo policy" with private respondent Phoenix
Assurance Company of New York (Phoenix), a non-life insurance company,
and private respondent McGee & Co. Inc. (McGee), the underwriting
manager/agent of Phoenix. 4
Mindanao Terminal loaded and stowed the cargoes aboard the M/V
Mistrau. The vessel set sail from the port of Davao City and arrived at the
port of Inchon, Korea. It was then discovered upon discharge that some of
the cargo was in bad condition. The Marine Cargo Damage Surveyor of Incok
Loss and Average Adjuster of Korea, through its representative Byeong Yong
Ahn (Byeong), surveyed the extent of the damage of the shipment. In a
survey report, it was stated that 16,069 cartons of the banana shipment and
2,185 cartons of the pineapple shipment were so damaged that they no
longer had commercial value. 5
Del Monte Produce filed a claim under the open cargo policy for the
damages to its shipment. McGee's Marine Claims Insurance Adjuster
evaluated the claim and recommended that payment in the amount of
$210,266.43 be made. A check for the recommended amount was sent to
Del Monte Produce; the latter then issued a subrogation receipt 6 to Phoenix
and McGee. TCaAHI

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 Phoenix and McGee instituted an action for damages 7 against
Mindanao Terminal in the Regional Trial Court (RTC) of Davao City, Branch
12. After trial, the RTC, 8 in a decision dated 20 October 1999, held that the
only participation of Mindanao Terminal was to load the cargoes on board
the M/V Mistrau under the direction and supervision of the ship's officers,
who would not have accepted the cargoes on board the vessel and signed
the foreman's report unless they were properly arranged and tightly secured
to withstand voyage across the open seas. Accordingly, Mindanao Terminal
cannot be held liable for whatever happened to the cargoes after it had
loaded and stowed them. Moreover, citing the survey report, it was found by
the RTC that the cargoes were damaged on account of a typhoon which M/V
Mistrau had encountered during the voyage. It was further held that Phoenix
and McGee had no cause of action against Mindanao Terminal because the
latter, whose services were contracted by Del Monte, a distinct corporation
from Del Monte Produce, had no contract with the assured Del Monte
Produce. The RTC dismissed the complaint and awarded the counterclaim of
Mindanao Terminal in the amount of P83,945.80 as actual damages and
P100,000.00 as attorney's fees. 9 The actual damages were awarded as
reimbursement for the expenses incurred by Mindanao Terminal's lawyer in
attending the hearings in the case wherein he had to travel all the way from
Metro Manila to Davao City.
Phoenix and McGee appealed to the Court of Appeals. The appellate
court reversed and set aside 10 the decision of the RTC in its 29 October
2003 decision. The same court ordered Mindanao Terminal to pay Phoenix
and McGee "the total amount of $210,265.45 plus legal interest from the
filing of the complaint until fully paid and attorney's fees of 20% of the
claim". 11 It sustained Phoenix's and McGee's argument that the damage in
the cargoes was the result of improper stowage by Mindanao Terminal. It
imposed on Mindanao Terminal, as the stevedore of the cargo, the duty to
exercise extraordinary diligence in loading and stowing the cargoes. It
further held that even with the absence of a contractual relationship
between Mindanao Terminal and Del Monte Produce, the cause of action of
Phoenix and McGee could be based on quasi-delict under Article 2176 of the
Civil Code. 12
Mindanao Terminal filed a motion for reconsideration, 13 which the
Court of Appeals denied in its 26 February 2004 14 resolution. Hence, the
present petition for review.
Mindanao Terminal raises two issues in the case at bar, namely:
whether it was careless and negligent in the loading and stowage of the
cargoes onboard M/V Mistrau making it liable for damages; and, whether
Phoenix and McGee has a cause of action against Mindanao Terminal under
Article 2176 of the Civil Code on quasi-delict. To resolve the petition, three
questions have to be answered: first, whether Phoenix and McGee have a
cause of action against Mindanao Terminal; second, whether Mindanao
Terminal, as a stevedoring company, is under obligation to observe the same
extraordinary degree of diligence in the conduct of its business as required
by law for common carriers 15 and warehousemen; 16 and third, whether
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 Mindanao Terminal observed the degree of diligence required by law of a
stevedoring company.
We agree with the Court of Appeals that the complaint filed by Phoenix
and McGee against Mindanao Terminal, from which the present case has
arisen, states a cause of action. The present action is based on quasi-delict,
arising from the negligent and careless loading and stowing of the cargoes
belonging to Del Monte Produce. Even assuming that both Phoenix and
McGee have only been subrogated in the rights of Del Monte Produce, who is
not a party to the contract of service between Mindanao Terminal and Del
Monte, still the insurance carriers may have a cause of action in light of the
Court's consistent ruling that the act that breaks the contract may be also a
tort. 17 In fine, a liability for tort may arise even under a contract, where tort
is that which breaches the contract. 18 In the present case, Phoenix and
McGee are not suing for damages for injuries arising from the breach of the
contract of service but from the alleged negligent manner by which
Mindanao Terminal handled the cargoes belonging to Del Monte Produce.
Despite the absence of contractual relationship between Del Monte Produce
and Mindanao Terminal, the allegation of negligence on the part of the
defendant should be sufficient to establish a cause of action arising from
quasi-delict. 19
The resolution of the two remaining issues is determinative of the
ultimate result of this case. TCcIaA

Article 1173 of the Civil Code is very clear that if the law or contract
does not state the degree of diligence which is to be observed in the
performance of an obligation then that which is expected of a good father of
a family or ordinary diligence shall be required. Mindanao Terminal, a
stevedoring company which was charged with the loading and stowing the
cargoes of Del Monte Produce aboard M/V Mistrau, had acted merely as a
labor provider in the case at bar. There is no specific provision of law that
imposes a higher degree of diligence than ordinary diligence for a
stevedoring company or one who is charged only with the loading and
stowing of cargoes. It was neither alleged nor proven by Phoenix and McGee
that Mindanao Terminal was bound by contractual stipulation to observe a
higher degree of diligence than that required of a good father of a family.
We therefore conclude that following Article 1173, Mindanao Terminal was
required to observe ordinary diligence only in loading and stowing the
cargoes of Del Monte Produce aboard M/V Mistrau.
The Court of Appeals erred when it cited the case of Summa Insurance
Corporation v. CA and Port Service Inc. 20 in imposing a higher degree of
diligence, 21 on Mindanao Terminal in loading and stowing the cargoes. The
case of Summa Insurance Corporation v. CA, which involved the issue of
whether an arrastre operator is legally liable for the loss of a shipment in its
custody and the extent of its liability, is inapplicable to the factual
circumstances of the case at bar. Therein, a vessel owned by the National
Galleon Shipping Corporation (NGSC) arrived at Pier 3, South Harbor, Manila,
carrying a shipment consigned to the order of Caterpillar Far East Ltd. with
Semirara Coal Corporation (Semirara) as "notify party". The shipment,
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 including a bundle of PC 8 U blades, was discharged from the vessel to the
custody of the private respondent, the exclusive arrastre operator at the
South Harbor. Accordingly, three good-order cargo receipts were issued by
NGSC, duly signed by the ship's checker and a representative of private
respondent. When Semirara inspected the shipment at house, it discovered
that the bundle of PC 8 U blades was missing. From those facts, the Court
observed:
. . . The relationship therefore between the consignee and the
arrastre operator must be examined. This relationship is much akin
to that existing between the consignee or owner of shipped goods and
the common carrier, or that between a depositor and a warehouseman.
[ 22 ] In the performance of its obligations, an arrastre operator
should observe the same degree of diligence as that required
of a common carrier and a warehouseman as enunciated under
Article 1733 of the Civil Code and Section 3(b) of the Warehouse
Receipts Law, respectively. Being the custodian of the goods
discharged from a vessel, an arrastre operator's duty is to take
good care of the goods and to turn them over to the party
entitled to their possession. (Emphasis supplied) 23

There is a distinction between an arrastre and a stevedore.24 Arrastre,

a Spanish word which refers to hauling of cargo, comprehends the handling
of cargo on the wharf or between the establishment of the consignee or
shipper and the ship's tackle. The responsibility of the arrastre operator lasts
until the delivery of the cargo to the consignee. The service is usually
performed by longshoremen. On the other hand, stevedoring refers to the
handling of the cargo in the holds of the vessel or between the ship's tackle
and the holds of the vessel. The responsibility of the stevedore ends upon
the loading and stowing of the cargo in the vessel.
It is not disputed that Mindanao Terminal was performing purely
stevedoring function while the private respondent in the Summa case was
performing arrastre function. In the present case, Mindanao Terminal, as a
stevedore, was only charged with the loading and stowing of the cargoes
from the pier to the ship's cargo hold; it was never the custodian of the
shipment of Del Monte Produce. A stevedore is not a common carrier for it
does not transport goods or passengers; it is not akin to a warehouseman for
it does not store goods for profit. The loading and stowing of cargoes would
not have a far reaching public ramification as that of a common carrier and a
warehouseman; the public is adequately protected by our laws on contract
and on quasi-delict. The public policy considerations in legally imposing upon
a common carrier or a warehouseman a higher degree of diligence is not
present in a stevedoring outfit which mainly provides labor in loading and
stowing of cargoes for its clients.
In the third issue, Phoenix and McGee failed to prove by preponderance
of evidence 25 that Mindanao Terminal had acted negligently. Where the
evidence on an issue of fact is in equipoise or there is any doubt on which
side the evidence preponderates the party having the burden of proof fails
upon that issue. That is to say, if the evidence touching a disputed fact is
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 equally balanced, or if it does not produce a just, rational belief of its
existence, or if it leaves the mind in a state of perplexity, the party holding
the affirmative as to such fact must fail. 26
ACaTIc

We adopt the findings 27 of the RTC, 28 which are not disputed by

Phoenix and McGee. The Court of Appeals did not make any new findings of
fact when it reversed the decision of the trial court. The only participation of
Mindanao Terminal was to load the cargoes on board M/V Mistrau. 29 It was
not disputed by Phoenix and McGee that the materials, such as ropes,
pallets, and cardboards, used in lashing and rigging the cargoes were all
provided by M/V Mistrau and these materials meets * industry standard. 30
It was further established that Mindanao Terminal loaded and stowed
the cargoes of Del Monte Produce aboard the M/V Mistrau in accordance with
the stowage plan, a guide for the area assignments of the goods in the
vessel's hold, prepared by Del Monte Produce and the officers of M/V Mistrau.
31 The loading and stowing was done under the direction and supervision of

the ship officers. The vessel's officer would order the closing of the hatches
only if the loading was done correctly after a final inspection. 32 The said
ship officers would not have accepted the cargoes on board the vessel if
they were not properly arranged and tightly secured to withstand the voyage
in open seas. They would order the stevedore to rectify any error in its
loading and stowing. A foreman's report, as proof of work done on board the
vessel, was prepared by the checkers of Mindanao Terminal and concurred in
by the Chief Officer of M/V Mistrau after they were satisfied that the cargoes
were properly loaded. 33
Phoenix and McGee relied heavily on the deposition of Byeong Yong
Ahn and on the survey report 35 of the damage to the cargoes. Byeong,
34

whose testimony was refreshed by the survey report, 36 found that the cause
of the damage was improper stowage 37 due to the manner the cargoes
were arranged such that there were no spaces between cartons, the use of
cardboards as support system, and the use of small rope to tie the cartons
together but not by the negligent conduct of Mindanao Terminal in loading
and stowing the cargoes. As admitted by Phoenix and McGee in their
Comment 38 before us, the latter is merely a stevedoring company which
was tasked by Del Monte to load and stow the shipments of fresh banana
and pineapple of Del Monte Produce aboard the M/V Mistrau. How and where
it should load and stow a shipment in a vessel is wholly dependent on the
shipper and the officers of the vessel. In other words, the work of the
stevedore was under the supervision of the shipper and officers of the
vessel. Even the materials used for stowage, such as ropes, pallets, and
cardboards, are provided for by the vessel. Even the survey report found
that it was because of the boisterous stormy weather due to the typhoon
Seth, as encountered by M/V Mistrau during its voyage, which caused the
shipments in the cargo hold to collapse, shift and bruise in extensive extent.
39 Even the deposition of Byeong was not supported by the conclusion in the

survey report that:

CAUSE OF DAMAGE

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 xxx xxx xxx

From the above facts and our survey results, we are of the
opinion that damage occurred aboard the carrying vessel during sea
transit, being caused by ship's heavy rolling and pitching under
boisterous weather while proceeding from 1600 hrs on 7th October to
0700 hrs on 12th October, 1994 as described in the sea protest. 40

As it is clear that Mindanao Terminal had duly exercised the required

degree of diligence in loading and stowing the cargoes, which is the ordinary
diligence of a good father of a family, the grant of the petition is in order.
However, the Court finds no basis for the award of attorney's fees in
favor of petitioner. None of the circumstances enumerated in Article 2208 of
the Civil Code exists. The present case is clearly not an unfounded civil
action against the plaintiff as there is no showing that it was instituted for
the mere purpose of vexation or injury. It is not sound public policy to set a
premium to the right to litigate where such right is exercised in good faith,
even if erroneously. 41 Likewise, the RTC erred in awarding P83,945.80
actual damages to Mindanao Terminal. Although actual expenses were
incurred by Mindanao Terminal in relation to the trial of this case in Davao
City, the lawyer of Mindanao Terminal incurred expenses for plane fare,
hotel accommodations and food, as well as other miscellaneous expenses,
as he attended the trials coming all the way from Manila. But there is no
showing that Phoenix and McGee made a false claim against Mindanao
Terminal resulting in the protracted trial of the case necessitating the
incurrence of expenditures. 42 ISaCTE

WHEREFORE, the petition is GRANTED. The decision of the Court of

Appeals in CA-G.R. CV No. 66121 is SET ASIDE and the decision of the
Regional Trial Court of Davao City, Branch 12 in Civil Case No. 25,311.97 is
hereby REINSTATED MINUS the awards of P100,000.00 as attorney's fees
and P83,945.80 as actual damages.
SO ORDERED.
Carpio Morales, * Velasco, Jr., Leonardo-de Castro ** and Brion, JJ.,
concur.

Footnotes

* Acting Chairperson as replacement of Associate Justice Leonardo Quisumbing

who is on official leave per Special Order No. 618.

** Additional member of the Special Second Division per Special Order No. 619.
1. Rollo, pp. 3-25.
2. Id. at 29-34. Penned by Associate Justice Danilo B. Pine and concurred by
Associate Justices Cancio C. Garcia and Renato C. Dacudao. The dispositive
portion reads as follows:

WHEREFORE, premises considered, the judgment appealed from is hereby

REVERSED and SET ASIDE. Mindanao Terminal Brokerage Services, Inc. is
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 ordered to pay the plaintiff-appellants the total amount of $210,265.45 plus
legal interest from the filing of the complaint until fully paid and attorney's
fees of 20% of the claim.
Costs against defendant-appellee.
SO ORDERED.
3. Id. at 36.

4. Records, pp. 234-310.

5. Rollo, p. 30.
6. Records, p. 350.
7. Id. at 1-6.

8. Rollo, pp. 38-44. Penned by Judge Paul T. Arcangel.

9. Id. at 44.
10. Id. at 33-34. ACcDEa

11. Id. at 36.

12. Id. at 31-33.

13. CA rollo, pp. 94-104.

14. Rollo, p. 36.
15. CIVIL CODE, Art. 1733.
16. Sec. 3 (b), Act 2137, Warehouse Receipt Law.
17. Air France v. Carrascoso, 18 SCRA 155, 168 (1966). Singson v. Bank of the
Philippine Islands, 132 Phil. 597, 600 (1968); Mr. & Mrs. Fabre, Jr. v. Court of
Appeals, 328 Phil. 775, 785 (1996).
18. PSBA v. Court of Appeals, G.R. No. 84698, 4 February 1992, 205 SCRA 729,
734.
19. CIVIL CODE. Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter. (Emphasis supplied)
20. 323 Phil. 214 (1996). SHaATC

21. Rollo, p. 32.

22. Malayan Insurance Co. Inc. v. Manila Port Service, 138 Phil. 69 (1969).
23. Supra note at 222-223.
24. See Compañia Maritima v. Allied Free Workers Union, 167 Phil. 381, 385
(1977).
25. See Republic of the Philippines v. Orfinada Sr., G.R. No. 141145, November 12,
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 2004, 442 SCRA 342, 352 citing Go v. Court of Appeals, G.R. No. 112550,
February 5, 2001 citing Reyes v. Court of Appeals, 258 SCRA 651 (1996).
26. Francisco, Ricardo, Evidence, 3rd (1996), p. 555. Citing Howes v. Brown, 75 Ala.
385; Evans v. Winston, 74 Ala. 349; Marlowe v. Benagh, 52 Ala. 112; Brandon
v. Cabiness, 10 Ala. 155; Delaware Coach v. Savage, 81 Supp. 293.
27. This Court is not a trier of facts. Furthermore, well settled is the doctrine that
"the findings of fact by the trial court are accorded great respect by
appellate courts and should not be disturbed on appeal unless the trial court
has overlooked, ignored, or disregarded some fact or circumstances of
sufficient weight or significance which, if considered, would alter the
situation". The facts of the case, as stated by the trial court, were adopted by
the Court of Appeals. And a conscientious sifting of the records fails to bring
to light any fact or circumstance militative against the correctness of the said
findings of the trial court and the Court of Appeals. See Home Development
Mutual Fund v. CA, 351 Phil. 858, 859-860 (1998).
28. Rollo, pp. 38-44.

29. Id. at 42.

30. Id. at 16. cDCSTA

31. TSN, 6 July 1999, p. 5.

32. Id. at 9-10.

33. Id. at 5-6.

34. Records, pp. 89-96.
35. Id. at 99-113.
36. Id. at 93.
37. Id. at 96.

38. Rollo, pp. 47-49.

39. Records, p. 105.
40. Id. at 112. TEHDIA

41. See Ramos v. Ramos, 158 Phil. 935, 960 (1974); Barreto v. Arevalo, 99 Phil.
771, 779 (1956); Mirasol v. Judge De la Cruz, 173 Phil. 518 (1978).
42. See Uy v. Court of Appeals, 420 Phil. 408 (2001).

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