SEPTEMBER 26- TOPICS AND CASES FOR

RECITATION/ DISCUSSION
Karene Maneka
•
Sep 20
100 points
ARTICLE 1734 TO ARTICLE 1738

CASES:
1.Nedlloyd Lijnen B.V. Rotterdam v. Glow Laks Enterprises, Ltd., G.R. No. 156330,
November 19, 2014
2.EASTERN SHIPPING LINES, INC., v. BPI/MS INSURANCE CORP., & MITSUI
SUMITOMO INSURANCE CO., LTD, .
G.R. No. 182864, January 12, 2015
3.ASIAN TERMINALS, INC.,v.- BPI/MS INSURANCE CORP.G.R. No. 177116,
February 27, 2013
Nedlloyd Lijnen B.V. Rotterdam v. Glow
Laks Enterprises, Ltd., G.R. No.
156330, November 19, 2014
Doctrine: It is well settled that foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take judicial notice of them. Like
any other fact, they must be alleged and proved.

For a copy of a foreign public document to be admissible, the following requisites

are mandatory: (1) it must be attested by the officer having legal custody of the
records or by his deputy; and

(2) it must be accompanied by a certificate by a secretary of the embassy or

legation, consul general, consul, vice-consular or consular agent or foreign service
officer, and with the seal of his office.

FACTS: Petitioner Nedlloyd Lijnen B.V. Rotterdam (Nedlloyd) is a foreign corporation engaged
in the business of carrying goods by sea, whose vessels regularly call at the port of Manila. It is
doing business in the Philippines thru its local ship agent, co-petitioner East Asiatic Co., Ltd.
(East Asiatic).

Respondent Glow Laks Enterprises,Ltd., is likewise a foreign corporation organized and existing
under the laws of Hong Kong. It is not licensed to do, and it is not doing business in, the
Philippines.

On or about 14 September 1987, respondent loaded on board M/S Scandutch at the Port of
Manila a total 343 cartoons of garments, complete and in good order for pre-carriage tothe Port
of Hong Kong. The goods covered by Bills of Lading Nos. MHONX-2 and MHONX-3 arrived
in good condition in Hong Kong and were transferred to M/S Amethyst for final carriage to
Colon, Free Zone, Panama. Both vessels, M/S Scandutch and M/S Amethyst, are owned by
Nedlloyd represented in the Phlippines by its agent, East Asiatic. The goods which were valued
at US$53,640.00 was agreed to be released to the consignee, Pierre Kasem, International, S.A.,
upon presentation of the original copies of the covering bills of lading. Upon arrival of the vessel
at the Port of Colon on 23 October 1987, petitioners purportedly notified the consignee of the
arrival of the shipments, and its custody was turned over tothe National Ports Authority in
accordance with the laws, customs regulations and practice of trade in Panama. By an
unfortunate turn ofevents, however, unauthorized persons managed to forge the covering bills of
lading and on the basis of the falsified documents, the ports authority released the goods.
REPORT THIS AD

On 16 July 1988, respondent filed a formal claim with Nedlloyd for the recovery of the amount
of US$53,640.00 representing the invoice value of the shipment but to no avail. Claiming that
petitioners are liable for the misdelivery of the goods, respondent initiated Civil Case No. 88-
45595 before the Regional Trial Court (RTC) of Manila, Branch 52, seeking for the recovery of
the amount of US$53,640.00, including the legal interest from the date of the first demand.

In disclaiming liability for the misdelivery of the shipments, petitioners asserted in their
Answerthat they were never remiss in their obligation as a common carrier and the goods were
discharged in good order and condition into the custody of the National Ports Authority of
Panama in accordance with the Panamanian law. They averred that they cannot be faulted for the
release of the goods to unauthorized persons, their extraordinary responsibility as a common
carrier having ceased at the time the possession of the goods were turned over to the possession
of the port authorities.

After the Pre-Trial Conference, trial on the merits ensued. Both parties offered testimonial and
documentary evidence to support their respective causes. On 29 April 2004, the RTC rendered a
Decision ordering the dismissal of the complaint but granted petitioners’ counterclaims. In effect,
respondent was directed to pay petitioners the amount of P120,000.00 as indemnification for the
litigation expenses incurred by the latter. In releasing the common carrier from liability for the
misdelivery of the goods, the RTC ruled that Panama law was duly proven during the trial and
pursuant to the said statute, carriers of goods destined to any Panama port of entry have to
discharge their loads into the custody of Panama Ports Authority to make effective government
collection of port dues, customs duties and taxes. The subsequent withdrawal effected by
unauthorized persons on the strength of falsified bills of lading does not constitute misdelivery
arising from the fault of the common carrier. The decretal part of the RTC Decision reads:
WHEREFORE, judgment is renderedfor [petitioners] and against [Respondent], ordering the
dismissal of the complaint and ordering the latter to pay [petitioners] the amount of ONE
HUNDRED TWENTY THOUSAND PESOS (P120,000.00) on their counterclaims.

REPORT THIS AD

ISSUE: WON PETITIONERS WERE ABLE TO PROVE THE LAWS OF PANAMA

BY PRESENTING AS EVIDENCE THE [GACETA] OFFICIAL OF REPUBLICA DE

PANAMA NO. 17.596 WHERE THE APPLICABLE PANAMANIAN LAWS WERE
OFFICIALLY PUBLISHED, AND THE TESTIMONY OF EXPERT WITNESSES,

HELD: NO. It is well settled that foreign laws do not prove themselves in our jurisdiction and
our courts are not authorized to take judicial notice of them. Like any other fact, they must be
alleged and proved. To prove a foreign law, the party invoking it must present a copy thereof and
comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which read: SEC. 24.
Proof of official record. — The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such
officer has the custody. If the office in which the record is kept is in a foreigncountry, the
certificate may be made by a secretary of the embassy or legation, consul general, consul, vice-
consul, or consular agent or by any officer in the foreign service of the Philippines stationed in
the foreign country in which the record is kept, and authenticated by the seal of his office.

SEC. 25. What attestation of copy must state. — Whenever a copy of a document or record is
attested for the purpose of the evidence, the attestation must state,in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may be. The attestation must be
under the official seal of the attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.

REPORT THIS AD

For a copy of a foreign public document to be admissible, the following requisites are
mandatory: (1) itmust be attested by the officer having legal custody of the records or by his
deputy; and (2) it must be accompanied by a certificate by a secretary of the embassy or legation,
consul general, consul, vice-consular or consular agent or foreign service officer, and with the
seal of his office. Such official publication or copy must be accompanied, if the record is not
kept in the Philippines, with a certificate that the attesting officer has the legal custody thereof.
The certificate may be issued by any of the authorized Philippine embassy or consular officials
stationed in the foreign country in which the record is kept, and authenticated by the seal of his
office. The attestation must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be, and mustbe under the official seal of the attesting
officer.

Contrary to the contention of the petitioners, the Panamanian laws, particularly Law 42 and its
Implementing Order No. 7, were not duly proven in accordance with Rules of Evidence and as
such, it cannot govern the rights and obligations of the parties in the case at bar. While a
photocopy of the Gaceta Official of the Republica de Panama No. 17.596, the Spanish text of
Law 42 which is theforeign statute relied upon by the court a quoto relieve the common carrier
from liability, was presented as evidence during the trial of the case below, the same however
was not accompanied by the required attestation and certification.

It is explicitly required by Section 24, Rule 132 of the Revised Rules of Court that a copy of the
statute must be accompanied by a certificate of the officer who has legal custody of the records
and a certificate made by the secretary of the embassy or legation, consul general, consul, vice-
consular or by any officer in the foreign service of the Philippines stationed in the foreign
country, and authenticated by the seal of his office. The latter requirement is not merely a
technicality but is intended to justify the giving of full faith and credit to the genuineness of the
document in a foreign country. Certainly, the deposition of Mr. Enrique Cajigas, a maritime law
practitioner in the Republic of Panama, before the Philippine Consulate in Panama, is not the
certificate contemplated by law. At best, the deposition can be considered as an opinion of an
expert witness who possess the required special knowledge on the Panamanian laws but could
not be recognized as proof of a foreign law, the deponent not being the custodian of the statute
who can guarantee the genuineness of the document from a foreign country. To admit the
deposition as proof of a foreign law is, likewise, a disavowal of the rationaleof Section 24, Rule
132 of the Revised Rules of Court, which isto ensure authenticity of a foreign law and its
existence so as to justify its import and legal consequence on the event or transaction in issue.
The above rule, however, admits exceptions, and the Court in certain cases recognized that
Section 25, Rule132 of the Revised Rules of Court does not exclude the presentation of other
competent evidence to prove the existence of foreign law. In Willamete Iron and Steel Works v.
Muzzal20 for instance, we allowed the foreign law tobe established on the basis of the testimony
in open court during the trial in the Philippines of an attorney-atlaw in San Francisco, California,
who quoted the particular foreign law sought to be established. The ruling is peculiar to the facts.
Petitioners cannot invoke the Willamete ruling to secure affirmative relief since their so called
expert witness never appeared during the trial below and his deposition, that was supposed to
establish the existence of the foreign law, was obtained ex-parte.

REPORT THIS AD

It is worth reiterating at this point that under the rules of private international law, a foreign law
must be properly pleaded and proved as a fact. In the absence of pleading and proof, the laws of
the foreign country or state will be presumed to be the same as our local or domestic law. This is
known as processual presumption. While the foreign law was properly pleaded in the case at bar,
it was,however, proven not in the manner provided by Section 24, Rule 132 of the Revised Rules
of Court. The decision of the RTC, which proceeds from a disregard of specific rules cannot be
recognized.

Eastern Shipping Lines vs. BPI/MS

Insurance Corp.
Facts: BPI/MS and Mitsui alleged that on 2 February 2004 at Yokohama, Japan, Sumitomo
Corporation shipped on board ESLI’s vessel M/V “Eastern Venus 22” 22 coils of various Steel
Sheet weighing 159,534 kilograms in good order and condition for transportation to and delivery
at the port of Manila, Philippines in favor of consignee Calamba Steel Center, Inc. (Calamba
Steel) located in Saimsim, Calamba, Laguna as evidenced by a Bill of Lading. The shipment was
insured with the respondents BPI/MS and Mitsui against all risks under Marine policy. On 11
February 2004, the complaint alleged that the shipment arrived at the port of Manila in an
unknown condition and was turned over to ATI for safekeeping. Upon withdrawal of the
shipment by the Calamba Steel’s representative, it was found out that part of the shipment was
damaged and was in bad order condition such that there was a Request for Bad Order Survey. It
was found out that the damage amounted to US$4,598.85 prompting Calamba Steel to reject the
damaged shipment for being unfit for the intended purpose.

ESLI assigns as error the appellate court’s finding and reasoning that the package limitation
under the COGSA is inapplicable even if the bills of lading covering the shipments only made
reference to the corresponding invoices. Noticeably, the invoices specified among others the
weight, quantity, description and value of the cargoes, and bore the notation “Freight Prepaid”
and “As Arranged.” ESLI argues that the value of the cargoes was not incorporated in the bills of
lading and that there was no evidence that the shipper had presented to the carrier in writing prior
to the loading of the actual value of the cargo, and, that there was a no payment of corresponding
freight. Finally, despite the fact that ESLI admits the existence of the invoices, it denies any
knowledge either of the value declared or of any information contained therein.

ISSUE: won ESLI has limited liability as a carrier is determined by either absence or
presence of proof that the nature and value of the goods have been declared by
Sumitomo Corporation and inserted in the bills of lading.

Held: No. ESLI contends that what was admitted and written on the pre-trial order
was only the existence of the first shipment’ invoice but not its contents and due
execution. It invokes admission of existence but renounces any knowledge of the
contents written on it. Judicial admissions are legally binding on the party making the
admissions. Pre-trial admission in civil cases is one of the instances of judicial
admissions explicitly provided for under Section 7, Rule 18 of the Rules of Court,
which mandates that the contents of the pre-trial order shall control the subsequent
course of the action, thereby, defining and limiting the issues to be tried.

The admission having been made in a stipulation of facts at pre-trial by the parties, it
must be treated as a judicial admission. Under Section 4, of Rule 129 of the Rules of
Court, a judicial admission requires no proof. It is inconceivable that a shipping
company with maritime experience and resource like the ESLI will admit the
existence of a maritime document like an invoice even if it has no knowledge of its
contents or without having any copy thereof. ESLI also asserts that the notation
“Freight Prepaid” and “As Arranged,” does not prove that there was an actual
declaration made in writing of the payment of freight as required by COGSA. ESLI
did not as it could not deny payment of freight in the amount indicated in the
documents. Indeed, the earlier discussions on ESLI’s admission of the existence and
due execution of the invoices, cover and disprove the argument regarding actual
declaration of payment. The bills of lading bore a notation on the manner of payment
which was “Freight Prepaid” and “As Arranged” while the invoices indicated the
amount exactly paid by the shipper to ESLI.
ESLI VS BPI (G.R. NO. 182864, JANUARY 12, 2015)
Eastern Shipping Lines, Inc., vs BPI/MS Insurance Corporation
G.R. No. 182864, January 12, 2015

Facts: A complaint for actual damages amounting to US$17,560.48 was filed by herein respondents against Eastern
Shipping Lines, Inc., (ESLI) covering steel subject to its shipment. Petitioner insisted that it was through the
management of the stevedore where the damages have been incurred. For failure to reach settlement on the legal
issues it was submitted to trial and during the pre-trial several stipulations of facts were admitted. The trial court
ruled in favor of the respondents. ESLI appealed disputing its liability as to the damaged goods and invoking further
the validity of the contents of the bill of lading.

Issue: Whether or not admissions made during the pre-trial as to the validity of the bills of lading are binding.

Ruling: Yes. Judicial admissions are legally binding on the party making the admissions. Pre-trial admission in civil
cases is one of the instances of judicial admissions explicitly provided for under Section 7, Rule 18 of the Rules of
Court, which mandates that the contents of the pre-trial order shall control the subsequent course of the action,
thereby, defining and limiting the issues to be tried. In Bayas v. Sandiganbayan, this Court emphasized that:

Once the stipulations are reduced into writing and signed by the parties and their counsels, they become binding on
the parties who made them. They become judicial admissions of the fact or facts stipulated. Even if placed at a
disadvantageous position, a party may not be allowed to rescind them unilaterally, it must assume the consequences
of the disadvantage.

Moreover, in Alfelor v. Halasan, this Court declared that:

A party who judicially admits a fact cannot later challenge that fact as judicial admissions are a waiver of proof;
production of evidence is dispensed with. A judicial admission also removes an admitted fact from the field of
controversy. Consequently, an admission made in the pleadings cannot be controverted by the party making such
admission and are conclusive as to such party, and all proofs to the contrary or inconsistent therewith should be
ignored, whether objection is interposed by the party or not. The allegations, statements or admissions contained in
a pleading are conclusive as against the pleader. A party cannot subsequently take a position contrary of or
inconsistent with what was pleaded. (Citations omitted)

The admission having been made in a stipulation of facts at pre-trial by the parties, it must be treated as a judicial
admission. Under Section 4, of Rule 129 of the Rules of Court, a judicial admission requires no proof.

ASIAN TERMINALS, INC., Petitioners, -versus- BPI/MS INSURANCE CORP., & MITSUI
SUMITOMO INSURANCE CO., LTD, Respondent. G.R. No. 177116, FIRST DIVISION, February 27,
2013, VILLARAMA, JR., J.:

Though it is true that common carriers are presumed to have been at fault or to have acted
negligently if the goods transported by them are lost, destroyed, or deteriorated, and that the
common carrier must prove that it exercised extraordinary diligence in order to overcome the
presumption, the plaintiff must still, before the burden is shifted to the defendant, prove that
the subject shipment suffered actual shortage. This can only be done if the weight of the
shipment at the port of origin and its subsequent weight at the port of arrival have been proven
by a preponderance of evidence, and it can be seen that the former weight is considerably
greater than the latter weight, taking into consideration the exceptions provided in Article 1734
of the Civil Code.

In this case, respondent failed to prove that the subject shipment suffered shortage, for it was
not able to establish that the subject shipment was weighed at the port of origin at Darrow,
Louisiana, U.S.A. and that the actual weight of the said shipment was 3,300 metric tons.

FACTS

Contiquincybunge Export Company loaded 6,843.700 metric tons of U.S. Soybean Meal in Bulk
on board the vessel M/V “Sea Dream” at the Port of Darrow, Louisiana, U.S.A., for delivery to
the Port of Manila to respondent Simon Enterprises, Inc., as consignee. When the vessel arrived
at the South Harbor in Manila, the shipment was discharged to the receiving barges of
petitioner Asian Terminals, Inc. (ATI), the arrastre operator. Respondent later received the
shipment but claimed having received only 6,825.144 metric tons of U.S. Soybean Meal, or
short by 18.556 metric tons.

Contiquincybunge Export Company made another shipment to respondent and allegedly loaded
on board the vessel M/V “Tern” at the Port of Darrow, Louisiana, U.S.A. 3,300.000 metric tons of
U.S. Soybean Meal in Bulk for delivery to respondent at the Port of Manila. Respondent
however, reported receiving only 3,100.137 metric tons instead of the manifested 3,300.000
metric tons of shipment.

Respondent filed with the RTC Manila an action for damages against the unknown owner of the
vessels M/V “Sea Dream” and M/V “Tern,” its local agent Inter-Asia Marine Transport, Inc., and
petitioner ATI alleging that it suffered the losses through the fault or negligence of the said
defendants.

In their Answer, the unknown owner of the vessel M/V “Tern” and its local agent Inter-Asia
Marine Transport, Inc., prayed for the dismissal of the complaint essentially alleging lack of
cause of action and prescription. Petitioner ATI meanwhile alleged in its Answer that it exercised
the required diligence in handling the subject shipment.

The RTC held petitioner ATI and its co-defendants solidarily liable to respondent for damages
arising from the shortage.

Upon appeal, the Court of Appeals affirmed the RTC. The CA held that there is no justification to
disturb the factual findings of the trial court which are entitled to respect on appeal as they
were supported by substantial evidence. It agreed with the findings of the trial court that the
unknown owner of the vessel M/V “Tern” and Inter-Asia Marine Transport, Inc. failed to
establish that they exercised extraordinary diligence in transporting the goods or exercised due
diligence to forestall or lessen the loss as provided in Article 174214 of the Civil Code. The CA
also ruled that petitioner ATI, as the arrastre operator, should be held jointly and severally liable
with the carrier considering that petitioner ATI’s stevedores were under the direct supervision
of the unknown owner of M/V “Tern” and that the spillages occurred when the cargoes were
being unloaded by petitioner ATI’s stevedores.

ISSUE

Whether the appellate court erred in affirming the decision of the trial court holding petitioner
ATI solidarily liable with its co-defendants for the shortage incurred in the shipment of the
goods to respondent. (YES)

RULING

First, petitioner ATI is correct in arguing that the respondent failed to prove that the subject
shipment suffered actual shortage, as there was no competent evidence to prove that it actually
weighed 3,300 metric tons at the port of origin.

Though it is true that common carriers are presumed to have been at fault or to have acted
negligently if the goods transported by them are lost, destroyed, or deteriorated, and that the
common carrier must prove that it exercised extraordinary diligence in order to overcome the
presumption, the plaintiff must still, before the burden is shifted to the defendant, prove that
the subject shipment suffered actual shortage. This can only be done if the weight of the
shipment at the port of origin and its subsequent weight at the port of arrival have been proven
by a preponderance of evidence, and it can be seen that the former weight is considerably
greater than the latter weight, taking into consideration the exceptions provided in Article 1734
of the Civil Code.

In this case, respondent failed to prove that the subject shipment suffered shortage, for it was
not able to establish that the subject shipment was weighed at the port of origin at Darrow,
Louisiana, U.S.A. and that the actual weight of the said shipment was 3,300 metric tons.

The weight of the shipment as indicated in the bill of lading is not conclusive as to the actual
weight of the goods. Consequently, the respondent must still prove the actual weight of the
subject shipment at the time it was loaded at the port of origin so that a conclusion may be
made as to whether there was indeed a shortage for which petitioner must be liable. This, the
respondent failed to do.

The bill of lading carried an added clause – the shipment’s weight, measure, quantity, quality,
condition, contents and value unknown. Evidently, the weight of the cargo could not be gauged
from the bill of lading. (Italics in the original; emphasis supplied).

The respondent having failed to present evidence to prove the actual weight of the subject
shipment when it was loaded onto the M/V “Tern,” its cause of action must then fail because it
cannot prove the shortage that it was alleging. Indeed, if the claimant cannot definitively
establish the weight of the subject shipment at the point of origin, the fact of shortage or loss
cannot be ascertained. The claimant then has no basis for claiming damages resulting from an
alleged shortage. Again, Malayan Insurance Co., Inc., provides jurisprudential basis:

In the absence of clear, convincing and competent evidence to prove that the cargo indeed
weighed, albeit the Bill of Lading qualified it by the phrase “said to weigh,” 6,599.23 MT at the
port of origin when it was loaded onto the MV Hoegh, the fact of loss or shortage in the cargo
upon its arrival in Manila cannot be definitively established. The legal basis for attributing
liability to either of the respondents is thus sorely wanting. (Emphasis supplied) Second, as
correctly asserted by petitioner ATI, the shortage, if any, may have been due to the inherent
nature of the subject shipment or its packaging since the subject cargo was shipped in bulk and
had a moisture content of 12.5%.

It should be noted that the shortage being claimed by the respondent is minimal, and is an
indication that it could be due to consolidation or settlement of the subject shipment, as
accurately observed by the petitioner. A Kansas State University study on the handling and
storage of soybeans and soybean meal35 is instructive on this matter. Pertinent portions of the
study reads:

Soybean meal is difficult to handle because of poor flow ability and bridging characteristics.
Soybean meal tends to settle or consolidate over time. This phenomenon occurs in most
granular materials and becomes more severe with increased moisture, time and small particle
size x x x. x

x x x Moisture is perhaps the most important single factor affecting storage of soybeans and
soybean meal. Soybeans contain moisture ranging from 12% to 15% (wet basis) at harvest time
x x x. x x x x

Soybeans and soybean meal are hygroscopic materials and will either lose (desorb) or gain
(adsorb) moisture from the surrounding air. The moisture level reached by a product at a given
constant temperature and equilibrium relative humidity (ERH) is its equilibrium moisture
content (EMC) x x x. (Emphasis supplied)

As indicated in the Proforma Invoice, the moisture content of the subject shipment was 12.5%.
Taking into consideration the phenomena of desorption, the change in temperature
surrounding the Soybean Meal from the time it left wintertime Darrow, Louisiana, U.S.A. and
the time it arrived in Manila, and the fact that the voyage of the subject cargo from the point of
loading to the point of unloading was 36 days, the shipment could have definitely lost weight,
corresponding to the amount of moisture it lost during transit.

Respondent relied on the Survey Reports of Del Pan Surveyors to prove that the subject
shipment suffered loss. The conclusion that there was a shortage arose from an evaluation of
the weight of the cargo using the barge displacement method. This is a type of draught survey,
which is a method of cargo weight determination by ship’s displacement calculations. The basic
principle upon which the draught survey methodology is based is the Principle of Archimedes,
i.e., a vessel when floating in water, will displace a weight of water equal to its own weight. It
then follows that if a weight of cargo is loaded on (or unloaded from) a vessel freely floating in
water, then the vessel will sink (or float) into the water until the total weight of water displaced
is equal to the original weight of the vessel, plus (or minus) the cargo which has been loaded (or
unloaded) and plus (or minus) density variation of the water between the starting survey (first
measurement) and the finishing survey (second measurement). It can be seen that this method
does not entail the weighing of the cargo itself, but as correctly stated by the petitioner, the
weight of the shipment is being measured by mere estimation of the water displaced by the
barges before and after the cargo is unloaded from the said barges.

In addition, the fact that the measurements were done by Del Pan Surveyors in prevailing slight
to slightly rough sea condition supports the conclusion that the resulting measurement may not
be accurate. A United Nations study on draught surveys in fact states that the accuracy of
draught surveys will be dependent upon several factors, one of which is the weather and seas
condition in the harbor.

Considering that respondent was not able to establish conclusively that the subject shipment
weighed 3,300 metric tons at the port of loading, and that it cannot therefore be concluded that
there was a shortage for which petitioner should be responsible; bearing in mind that the
subject shipment most likely lost weight in transit due to the inherent nature of Soya Bean
Meal; assuming that the shipment lost weight in transit due to desorption, the shortage of
199.863 metric tons that respondent alleges is a minimal 6.05% of the weight of the entire
shipment, which is within the allowable 10% allowance for loss; and noting that the respondent
was not able to show negligence on the part of the petitioner and that the weighing methods
which respondent relied upon to establish the shortage it alleges is inaccurate, respondent
cannot fairly claim damages against petitioner for the subject shipment’s alleged shortage.