PART I — COMMON CARRIERS

Chapter 4 — Defenses of the Common Carrier

CHAPTER 4 DEFENSES OF THE COMMON CARRIER

The carrier is not an insurer of the passenger’s safety or the safety of the goods that it is transporting.
The carrier’s liability rests upon its failure to exercise the extraordinary degree of diligence that the law
‘requires.

The carrier bears the burden of satisfying the court that he has duly discharged the duty of prudence
required in case of a passenger’s death, or injury by the carrier, or damage to or loss of the cargoes.

The carrier may also resort to the defenses provided for under the New Civil Code in order to escape
liability but it has the burden of alleging and proving the facts that support the applicability of such
defenses.

1. KINDS OF DEFENSES.

Defenses may either totally bar recovery from the carrier or may mitigate and/or limit its liability. For
instance, fortuitous event may be invoked in proper cases to prevent the passenger or shipper from
recovering from the carrier.

On the other hand, there are defenses that will not totally bar recovery but will merely reduce or
mitigate the liability of the carrier.

Examples of defenses that mitigate liability are the Doctrine of Contributory Negligence and the
Avoidable Consequences Rule.

A validly stipulated limitation on liability of the carrier may also be invoked to limit the liability to a
certain amount although the actual value of the damage or injury is much more than the stipulated
ceiling.

a. There are legal defenses that are expressly recognized under the New Civil Code. In the same manner,
certain defenses are expressly prohibited under the New Civil Code.

For example, a provision in a contract that provides that a common carrier need not exercise any degree
of diligence is void and cannot be invoked as a defense

2. PROXIMATE CAUSATION.

The common carrier is presumed negligent the moment he fails to deliver the goods to its destination
or the moment the passenger did not reach his destination while riding the carrier.
It is by reason of such presumption that it has been observed that the doctrine of proximate cause is
inapplicable to a contract of carriage.

The injured passenger or owner of goods need not prove causation to establish his case. The
presumption arises upon the happening of the accident.

2.1. ABSENCE OF CAUSATION AS A DEFENSE.

What the law means is that absence of causal connection is only a matter of defense. In other words,
the passenger or the shipper has no burden of proving that his injury was caused by the negligent or
intentional act or omission of the carrier or his agents.

The carrier can also prove that the proximate cause of the loss is not any act or omission of the said
carrier because he exercised extraordinary diligence.

a. The relevance of proximate causation is even recognized in Articles1741 and 1762 of the New
Civil Code that still allow recovery if there is contributory negligence on the part of the shipper
or passenger so long as the proximate cause of the damage is the negligence of the carrier.

DEFENSES IN THE CARRIAGE OF GOODS.

The applicable provisions of the New Civil Code are Articles 1734, 1742, and 1743 which provide:

ARTICLE 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods,
unless the same is due to any of the following causes only:

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;

(2) Act of the public enemy in war, whether inter-national or civil;

(3) Act or omission of the shipper or owner of the goods;

(4) The character of the goods or defects in the packing or in the containers;

(5) Order or act of competent public authority.

ARTICLE 1742. Even if the loss, destruction, or deterioration of the goods should be caused by the
character of the goods, or the faulty nature of the packing or of the containers, the common carrier must
exercise due diligence to forestall or lessen the loss.
ARTICLE 1743. If through the order of public authority, the goods are seized or destroyed, the common
carrier is not responsible, provided said public authority had power to issue the order.

a. Based on Articles 1734, 1742, and 1743 of the New Civil Code, the defenses that can be raised by
common carriers for the loss, destruction, or deterioration of the goods are the following:

(1) Flood, storm, earthquake, lightning and other natural disaster and calamity;

(2) Acts of the public enemy at war, whether international or civil;

(3) Act or omission of the shipper or owner of the goods;

(4) The character of the packing of the goods in the packing or in the containers;

(5) Order or act of the competent authority; and

(6) Exercise of extraordinary diligence.

EXCLUSIVITY OF DEFENSES.

No other defense may be raised by the common carrier in the carriage of goods. The above enumeration
is exclusive or a closed list. If not one of enumerated is present, the carrier is liable.

EXCLUSIVITY OF DEFENSES – no other defense may be raised by the common carrier in the carriage
of goods. The above enumeration is exclusive or a closed list.
a. For all other cases not enumerated under Article 1734 – such as theft or robbery – a common carrier is
presumed to have been at fault or to have acted negligently, unless it can prove that it observed
extraordinary diligence.

For example, the defense of exercise of due diligence in the selection and supervision of employees that
is available in tort is not available in an action for breach of contract of carriage.

DEFENSES IN CARRIAGE OF PASSENGERS.

With respect to passengers, the carrier’s defense is exercise of extraordinary or utmost diligence.

It is believed that the defenses mentioned above like fortuitous event or acts of a public enemy (except
No. 4) may be invoked against the passenger or his heirs provided that utmost diligence is exercised.
However, the presumption under Article 1756 applies.

PROBLEMS:
1. While docking his vessel, “Taurus,” the master, through negligence, damaged the wharf and the
merchandise loaded on the deck. The owner of the wharf and the owner of the damaged merchandise
sued the owner of the vessel and master of the vessel for the damage. Does the defense of the exercise
of the diligence of a good father of a family he? Reasons.

A: No with respect to the damage to the merchandise but yes with respect to the damage to the wharf.
The defense of exercise of the diligence of a good father of a family is not available in breach of contract
but is available in quasi-delict cases.

The cause of action by the owner of the merchandize against the carrier is breach of contract. Hence,
such defense is not available. The carrier is supposed to exercise extraordinary diligence in transporting
the goods and the said carrier cannot be deemed to exercise this degree of diligence if its captain or
employees were negligent.

However, the defense of due diligence in the selection and supervision of the carrier’s employees is
available against the owner of the wharf. The cause of action against the carrier is quasi-delict and the
carrier is being sued for his vicarious liability.

Hence, the defense of exercise of the diligence of a good father of a family in the selection and
supervision of his employees is available under Article 2180 of the Civil Code. (1976, See also 2002 Exam)

2. The vessel M/V Sweet Perceptions, commanded by Kapitan, its captain, was unloading goods at a
private wharf in Naval, Leyte, when the ship bumped the wharf of the pier causing it to collapse in the
sea. It turned out that Kapitan failed to drop the vessel’s bow anchors to fasten the vessel properly to the
pier.

The vessel was pushed by the combined action of the currents in the Biliran Island Strait and the usual
southwest monsoon winds of the season. As a result, Pantalan, the owner of the wharf, lost not only the
wharf but also the goods that had just been unloaded on the pier pending the delivery to him. Pan-talan
sued both the owner of the M/V Sweet Perceptions and Kapitan for the loss of the cargoes and the
destruction of the wharf on the pier.

The vessel’s owner, who is in Manila, states that he exercised due diligence in the selection and
supervision of Kapitan. Can the vessel’s owner and Kapitan be held liable for the loss of the wharf and
the cargoes? Explain.

A: Yes, the owner may be held liable with respect to the damage to the cargoes but, no, he is not liable
with respect to the damage to the wharf. The cause of action by the owner of the cargoes against the
carrier is breach of contract. Hence, negligence is presumed the moment the goods were damages
before delivery.
However, the defense of due diligence in the selection and supervision of the carrier’s employees is
available against the owner of the wharf. If the same can be established, the carrier is not liable. The
cause of action against the carrier is quasi-delict and the carrier is being sued for his vicarious liability.
Hence, the defense of exercise of the diligence of a good father of a family in the selection and
supervision of his employees is available under Article

2180 of the Civil Code. On the other hand, Kapitan can be held liable for the loss of the wharf and the
cargoes. The liability is based on quasi-delict because his negligent act or omission caused the damage or
injury. In fact, the action against him may even be to enforce his civil liability arising from criminal
negligence. (1986)

4. FORTUITOUS EVENT.

For fortuitous event, to be a valid defense, it must be established to be the proximate cause of the loss.

The Supreme Court explained in Lasam v. Smith

“This brings us to the principal question in the case:

What is meant by “events which cannot be foreseen and which having been foreseen, are inevitable? ‟

The Spanish authorities regard the language employed as an effort to define the term caso fortuito and
hold that the two expressions are synonymous. (Manresa, Comentarios al Co Civil Espafiol, vol. 8, pp. 88
et seq.;Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.)

The antecedent to Article 1105 is found in Law 11, Title 33, Partida, which defines caso fortuito as
“ocasion que acaese por aventura deque non puede ante ver. E son estos, derrivamientos de casas e
fuego que se enciende soora, e quebrantamiento de navio, fuerca de ladrones. . . .

(An event that takes place by accident and could not have been foreseen. )

Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers.

Escriche defines caso fortuito as “an unexpected event such as floods, torrents, shipwrecks,
conflagrations, lightning, compulsion, insurrections, destruction of buildings by unforeseen accidents
and other occurrences of a similar nature.”

In discussing and analyzing the term caso fortuito the Enciclopedia JuridicaEspanola says:

“In a legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following
essential characteristics:

(1) The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply
with his obligation, must be independent of the human will;

(2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen,
it must be impossible to avoid;

(3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a
normal manner; and (
4) the obligor (debtor) must befree from any participation in the aggravation of the injury resulting to
the creditor.”

. The cause of the unforeseen and

unexpected occurrence, or of the
failure of the debtor to comply
with
his obligation, must be
independent of the human will;
2. It must be impossible to
foresee the event that constitutes
the causo fortuito, or if it can be
foresee, it
must be impossible to avoid;
3. The occurrence must be such
as to render it impossible for the
debtor to fulfill his obligation in a
normal
manner;
4. The obligor (debtor) must be
free from any participation in or
the aggravation of the injury
resulting to
the creditor.
. The cause of the unforeseen and
unexpected occurrence, or of the
failure of the debtor to comply
with
his obligation, must be
independent of the human will;
2. It must be impossible to
foresee the event that constitutes
the causo fortuito, or if it can be
foresee, it
must be impossible to avoid;
3. The occurrence must be such
as to render it impossible for the
debtor to fulfill his obligation in a
normal
manner;
4. The obligor (debtor) must be
free from any participation in or
the aggravation of the injury
resulting to
the creditor.
The cause of the unforeseen and
unexpected occurrence, or of the
failure of the debtor to comply
with
his obligation, must be
independent of the human will;
2. It must be impossible to
foresee the event that constitutes
the causo fortuito, or if it can be
foresee, it
must be impossible to avoid;
3. The occurrence must be such
as to render it impossible for the
debtor to fulfill his obligation in a
normal
manner;
4. The obligor (debtor) must be
free from any participation in or
the aggravation of the injury
resulting to
the creditor.
The cause of the unforeseen and
unexpected occurrence, or of the
failure of the debtor to comply
with
his obligation, must be
independent of the human will;
2. It must be impossible to
foresee the event that constitutes
the causo fortuito, or if it can be
foresee, it
must be impossible to avoid;
3. The occurrence must be such
as to render it impossible for the
debtor to fulfill his obligation in a
normal
manner;
4. The obligor (debtor) must be
free from any participation in or
the aggravation of the injury
resulting to
the creditor.
The cause of the unforeseen and
unexpected occurrence, or of the
failure of the debtor to comply
with
his obligation, must be
independent of the human will;
2. It must be impossible to
foresee the event that constitutes
the causo fortuito, or if it can be
foresee, it
must be impossible to avoid;
3. The occurrence must be such
as to render it impossible for the
debtor to fulfill his obligation in a
normal
manner;
4. The obligor (debtor) must be
free from any participation in or
the aggravation of the injury
resulting to
the creditor.
The cause of the unforeseen and
unexpected occurrence, or of the
failure of the debtor to comply
with
his obligation, must be
independent of the human will;
2. It must be impossible to
foresee the event that constitutes
the causo fortuito, or if it can be
foresee, it
must be impossible to avoid;
3. The occurrence must be such
as to render it impossible for the
debtor to fulfill his obligation in a
normal
manner;
4. The obligor (debtor) must be
free from any participation in or
the aggravation of the injury
resulting to
the creditor.
REQUISITES OF FORTUITOUS EVENT.

The following requisites must be present before the carrier can properly invoke fortuitous events as a
defense:

a. Article 1174 of the New Civil Code provides that “except in cases expressly specified by the law,
or when it is otherwise declared by stipulation, or when the nature of the obligation requires the
assumption of risk, no person shall be responsible for those events which, could not before seen,
or which, though foreseen, were inevitable'
 Fortuitous event under Article 1174 is not limited to natural calamities; it may involve events
that involve human intervention. Thus, fortuitous event may be produced by two general causes,
that is, by nature and by acts of man like armed invasion, attacks of bandits, governmental
prohibition, and robbery.

However, the norm in contract of carriage is different from ordinary contracts because of the duty to
exercise extraordinary diligence.

b. For example, the sinking of a barge that was being towed by a tug boat was the result of a fortuitous
event when it resulted because the vessels involved were suddenly tossed by waves of extraordinary
height and buffeted by strong winds resulting in the entry of water into the barge’s hatches.

EFFECT OF CARRIER‟S PARTICIPATION.

The requirement that the carrier must be free from any participation in causing the damage or injury is
in line with Article 1739 of the Civil Code that provides that the carrier will be excused from liability if the
natural disaster is the proximate and only cause of the loss.

ARTICLE 1739. In order that the common carrier may be exempted from responsibility, the natural
disaster must have been the proximate and only cause of the loss.

However, the common carrier must exercise due diligence to prevent or minimize loss before, during and
after the occurrence of flood, storm or other natural disaster in order that the common
carrier may be exempted from liability for the loss, destruction, or deterioration of the goods.

The same duty is incumbent upon the common carrier in case of an act of the public enemy referred to
in Article 1734, No. 2.

common carrier must allege and prove that the proximate cause of the loss is the fortuitous event. The
common carrier must still prove that it did not contribute to the occurrence of the incident due to its own
or its employees’ negligence.

RATIONALE.

RATIONALE – an act of God cannot be urged for the protection of a person who has been guilty of gross
negligence in not trying to avert its results

The statutory provision is consistent with the view of Justice Moreland that he expressed in his
dissenting opinion in 1912in Tan Chiong Sian v. Inchausti.u Justice Moreland explained that:

“An act of God cannot be urged for the protection of a person who has been guilty of gross negligence in
not trying to avert its results.

One who has accepted responsibility for pay cannot weakly fold his hands and say that he was prevented
from meeting that responsibility by an act of God, when the exercise of the ordinary care and prudence
would have averted the results flowing from that act.

One who has placed the property of another, entrusted to his care, in an unseaworthy craft, upon
dangerous waters, cannot absolve himself by crying, “an act of God’’ when every effect which a
typhoon produced upon that property could have been avoided by the exercise of common care and
prudence.

When the negligence of the carrier concurs with an act of God producing a loss, the carrier is not
exempted from liability by showing that the immediate cause of the damage was the act of God; or, as it
has been expressed, “when the loss is caused by the act of God, if the negligence of the carrier mingles
with it as an active and cooperative cause, he is still liable.”

The loss and damage to perishable articles in consequence of the weather will not excuse the carrier if it
could have been prevented by due care and diligence.

The carrier must not only show that it did all that was usual, but all that was necessary to be done under
the circumstances. (Wing v. New York, etc.,Ry. Co., 1 Hilt. [N.Y.], 235; Philleo v. Sanford, 17 Tex., 228)

To be exempt from liability for loss because of an act of God, the common carrier must be free from any
previous negligence or misconduct by which that loss or damage may have been occasioned.

For, although the immediate or proximate cause of a loss in any given instance may have been what is
termed an act of God, yet if the carrier unnecessarily exposed the property to such accident by any
culpable act or omission of his own, he is not excused (Mc-Graw vs. Baltimore and Ohio Ry. Co.,41 Am.
Rep., 696.).

In the case of Wolf v. American Express Co., 43 Mo., 421, Wagner,c/., said:

The act of God which excuses the carrier must not only be the proximate cause of the loss, but the better
opinion is that it must be the sole cause. And where the loss is caused by the “act of God,” if the
negligence of the carrier mingles with it as an active and cooperative cause, he is still responsible (Amies
v. Stevens,1 Stra., 128).

a. Spanish commentator Manresa expressed the same view when he explained Article 1105 of the Civil
Code of Spain:

“Elucidation of Article 1105 and the idea of the accident is interesting under the following aspects:
Relation between it and the blame; Enumeration of the requisites that must be present; Proof of the
event and characterization thereof; and the consequence it produces. Let us examine them.

Even when the distinction is simple and reasonable between blame for some exempting circumstance
(because it may not be serious enough to involve such blame, under the law or the obligation) and
accident, since the former admits an imputation which the latter excludes, even when the former may
not be the basis for legal responsibility, and therefore it cannot be said that where no responsible blame
exists there the accident commences, yet the latter is undeniably characterized by unexpectedness and
inevitability, circumstances susceptible of relative interpretation, and so whatever relates to the blame
must be taken into account, because, as we shall see, it is in certain sense, especially in practical
application, connected with the matter under consideration.

Aside from this statement of ideas, there may be another of consequences, for in the complexity of facts,
in the same obligation, there may be present blame enough to involve such and also accident. When
both causes are present, with separation of time and affects, for partial breach due to one of them may
be possible and then the other may operate to aggravate or complete these consequences, the
distinction is easy and to each cause may be assigned its own effect for the corresponding result, as
neither exemption, on account of accident, can be extended to what may be imputed nor to what in any
way depends upon it by basing responsibility arising from blame on the fact that the damage is the result
thereof.

The problem becomes more difficult when both causes concur to produce the same effect or when, even
though the effect may be due to accident, the obligor has not exercised necessary diligence, however,
blameless he was for the results arising from the breach. In the first of the last two suppositions, the
solution is plain, because when the obligor incurs the blame of actually producing the result, or even
when it is not the only cause, or even the principal one, there is still sufficient connection between it and
the consequences to cause them to be imputed to him and, as a voluntary element exists in the causes,
there is lacking the circumstance indispensable to exemption on account of accident. The second
supposition presents a very difficult problem of proof, which rests upon the obligor, and calls for a
careful analysis of the origin of the breach.

The difficulty in this case consists in that the blame, in addition to its subjective aspect for imputing the
consequences to the obligor, has an objective aspect, to wit, that these consequences may rise, that the
damage which must be repaired is caused, in such manner that due diligence may be lacking and yet not
extend to the point of involving responsibility, because it produces no results.

Now then, if an accident occurs under these conditions, absolutely independent of the negligence that
may have existed, it may have occurred with or without negligence and therefore any derivation of
consequences was lacking, then it cannot be said that responsibility arises therefrom; but to reach this
conclusion there first rests with the obligor proof so difficult that, in addition to overcoming the
presumption of existence of blame, it involves the very fine distinction of the origin of the breach and
perfectly reveals the occurrence of the accident, joined by their coexistence, and demonstrating
absolute lack of consequences and influence of blame.

XXX

According to the text of Article 1105, which agrees with the rational idea of accident, it is sufficient for
the event to constitute such that it have any of the two characteristics enumerated; if it is foreseen, it is
of little import that it be unavoidable; and if it is unavoidable it does not matter that it may have been
foreseen.

The first supposition requires some explanation:

an event may be wholly unforeseen, but, after it has occurred, be very slow in producing effects, and in
such case, although it could not have been foreseen, as there is time before it produces its effects, the
latter must be considered. Besides this special supposition, in which, if carefully considered, the two
characteristics do not concur, since the idea of unexpectedness, as is seen, is relative, it will be sufficient
that one or the other be present.

The possibility of foresight must be weighed rationally with consideration of all the circumstances, but
this general rule has, strictly speaking, an exception when the event, although in a general way very
difficult, almost impossible to be foreseen, should for some reason be known to the obligor in due time.

The condition of inevitability cannot be understood in so absolute a sense that it should take away the
character of accident from many that are strictly such, because they are undoubtedly causes, however
powerful they may be, whose injurious effects may have been avoided by exercising a number of
precautions, so exaggerated and so out of proportion to the importance of the trouble anticipated, that
they would be unreasonable and not required in law. In such cases, if the means which can and must
rationally be employed are not effective, it will be held to have been unavoidable.
So, we see demonstrated how the idea of diligence is related, somewhat in the nature of limitation, to
the accident. Such was the doctrine established in our ancient law regarding the obligor; the reasons
whereof are theoretically set forth further on; and as a written provision, law 20, title 13, partida 5,
which expressly laid down this principle in connection with pawn-broking contracts, and which was, by
analogy, made the basis for extending a similar provision to the remaining cases.

That the Civil Code is inspired by the same idea is clearly expressed in Article 1183 thereof, the
commentary on which should be consulted. Still such solution depends upon the nature of proof and of
the accident, since its existence as an abnormal event hindering the fulfillment of the obligation must be
proved and not presumed, and the burden of this proof rests upon the obligor, and not upon the
obligee, whose proof would have to be negative.

Moreover, since an accident is the basis for exemption from responsibility, it must be [proven] by him
who will benefit thereby and who objects to the requirement that he fulfill his obligations. To these
reasons are joined those above set forth in connection with the proof of contractual blame, since they
are, according to the same Article, 1183, above cited, closely related questions, so much so that they
become two phases of one question —presumption against the existence of accident of what tends to
establish presumption of blame, in the absence of proof to overcome it.

Proof of accident must include these points; the occurrence of the event, the bearing it has upon breach
of the obligation, and the concurrence of unexpectedness and inevitably. In connection with the first two
points, the proof resting upon the obligor must be specific and exact; but as for the last, although it may
be admitted as a general proposition that, in addition to proving the event, he must also demonstrate
that it involves the condition

required to make it an accident, there are some of such magnitudes and, by their nature, of almost
impossible prevision, that proof of their occurrence demonstrates their condition. Undoubtedly, and
differently from proof of the accident, the exceptional circumstance that the event (which should as a
general proposition be regarded as unforeseen) was known to the obligor for some special reason, must
be proven by the obligee who asserts it, since the obligation of proof resting upon the former is fulfilled
in this regard by demonstrating that the event ought rationally to be held to have been unforeseen.

Since proof of the accident is related to proof of the blame, it is evident that the obligor must also prove,
so far as he is concerned, that he is not to blame for breach of the obligation.

Exemption from responsibility in accidents established by Article 1105 has, according to its text, two
exceptions, whereby an event may be plainly proven, and be unforeseen and unavoidable and still not
produce such exemption, viz., when the execution is either stipulated in the obligation or is expressly
mentioned by the law.

The basis for these exceptions rests, according to this case, either upon the freedom of contracts, which
is opposed to prohibition of a compact, wherein, without immorality, there is merely an emphasized
stipulation, which is meant to guarantee in every case an interest and indirectly to secure careful and
special diligence in the fulfillment of the obligation; or upon the nature of the obligations when risk is an
essential element therein; or finally upon cases whose circumstances, as happens with that provided for
by the last paragraph of Article 1096, justify the special strictness of the law.

In conclusion, we shall point out that in order to relieve the obligor from his obligation, it must be
remembered that the occurrence of the event does not suffice, but that the impossibility of fulfilling the
obligation must be the direct consequences of the accident, so that when it can be fulfilled it will subsist,
even if only in part, and therefore, in order to see whether or not the accident produces this result the
nature of the obligation must be considered, and according to whether it be specific or general, etc., it
will or will not be extinguished.”

FIRE.

Broadly speaking, force majeure generally applies to a natural accident, such as that caused by a
lightning, an earthquake, a tempest or a public enemy. Hence, fire is not considered a natural disaster or
calamity.

a. In Eastern Shipping Lines v. Intermediate AppellateCourt, it was observed that smoke came from
these hatches but it was only after 24 hours that they started opening the hatches and fighting
the fire.

It also appears that after the cargoes were stored in the hatches, no regular inspection was made as to
their condition during the voyage.

Consequently, the crew could not have even explained what could have caused the fire. The Court
observed that the carrier failed to satisfactorily show that extraordinary vigilance and care had been
made by the crew to prevent the occurrence of the fire.

b. The rule was reiterated in Edgar Cokaliong Shipping Lines, Inc.v. UCPB General Insurance Company.

In the said case, petitioner’s vessel, M/V Tandag, sank due to fire that resulted from a crack in the
auxiliary engine fuel oil service tank. Fuel spurted out of the crack and dripped to the heating exhaust
manifold, causing the ship to burst into flames.

The crack was located on the side of the fuel oil tank, which had a mere two-inch gap from the engine
room walling, thus precluding constant inspection and care by the crew. The sinking of the vessel was
not considered due to fortuitous event. Having originated from an unchecked crack in the fuel oil service
tank, the fire could not have been caused by force majeure.

FIRE – force majeure generally applies to a natural accident, such as that caused by lightning, an
earthquake, a tempest, or a public enemy. Hence, fire is not considered a natural disaster or calamity.
STORM.

PAGASA described a storm as having a wind force of48 to 55 knots or 55 to 63 miles per hour.

The presence of strong wind does not by itself justify the conclusion that there is a storm. For instance,
strong monsoon winds are not a storm within the contemplation of Article1734[1] of the New Civil Code.

Monsoon wind is not an unusual occurrence and is a normal and foreseeable condition while navigating
in the sea.

However, there may be cases when strong winds may be unforeseeable. Hence, in one case, the carrier
was not made liable because the proximate and only cause of the loss was unforeseeable strong winds
and enormous waves.

4.6. HIJACKING.

Hijacking of the carrier does not fall among the five categories of exempting causes. The carrier’s vehicle
must be dealt with under Article 1735 of the New Civil Code. In other words, the common carrier is
presumed be at fault or to have acted negligently unless there is a proof of extraordinary diligence on its
part of the common carrier.

Thus, the Supreme Court explained in De Guzman v. Court of Appeals. “Petitioner insists that private
respondent had not observed extra-ordinary diligence in the care of petitioner’s goods. Petitioner argues
that in the circumstances of this case, private respondent should have hired a security guard presumably
to ride with the truck carrying the 600 cartons of Liberty filled milk. We do not believe, however, that in
the instant case, the standard of extraordinary diligence required private respondent to retain a security
guard to ride with the truck and to engage brigands in a fire fight at the risk of his own life and the lives
of the driver and his helper.

The precise issue that we address here relates to the specific requirements of the duty of extraordinary
diligence in the vigilance over the goods carried in the specific context of hijacking or armed robbery.

Under Article 1745(6) above, a common carrier is held responsible — and will not be allowed to divest or
to diminish such responsibility — even for acts of strangers like thieves or robbers, except where such
thieves or robbers in fact acted “with grave or irresistible threat, violence or force.” We believe and so
hold that the limits of the duty of extraordinary diligence in the vigilance over the goods carried are
reached where the goods are lost as a result of a robbery which is attended by “grave or irresistible
threat, violence or force.

“In the instant case, armed men held up the second truck owned by private respondent which carried
petitioner’s cargo. The record shows that an information for robbery in band was filed in the Court of
First Instance of Tarlac, Branch 2, in Criminal Case No. 198 entitled “People of the Philippines v. Felipe
Boncorno, Napoleon Presno, Armando Mesina, Oscar Oria and one John Doe.”
There, the accused were charged with willfully and unlawfully taking and carrying away with them the
second truck, driven by Manuel Estrada and loaded with the 600 cartons of Liberty filled milk destined
for delivery petitioner’s store in Urdaneta, Pangasinan. The decision of the trial court shows that the
accused acted with grave, if not irresistible, threat, violence or force.

Three (3) of the five hold-uppers were armed with firearms. The robbers not only took away the truck
and its cargo but also kidnapped the driver and his helper, detaining them for several days and later
releasing them in another province (in Zambales). The hijacked truck was subsequently found by the
police in Quezon City. The Court of First Instance convicted all the accused of robbery, though not of
robbery in band.

In these circumstances, we hold that the occurrence of the loss must reasonably be regarded as quite
beyond the control of the common carrier and properly regarded as a fortuitous event. It is necessary to
recall that even common carriers are not made absolute insurers against all risks of travel and of
transport of goods, and are not held liable for acts or events which cannot be foreseen or are inevitable,
provided that they shall have complied with the rigorous standard of extraordinary diligence.”

a. Similarly, the Supreme Court ruled in Bascos v. Court of Appeals that the allegation that there was
hijacking must be established by sufficient evidence:

“In this case, petitioner alleged that hijacking constituted force majeure which exculpated her from
liability for the loss of the cargo.

In De Guzman v. Court of Appeals, the Court held that hijacking, not being included in the provisions of
Article 1734, must be dealt with under the provisions of Article1735 and thus, the common carrier is
presumed to have been at fault or negligent. To exculpate the carrier from liability arising from hijacking,
he must prove that the robbers or the hijackers acted with grave or irresistible threat, violence, or force.
This is in accordance with Article 1745 of the Civil

Code which provides:

To establish grave and irresistible force, petitioner presented her accusatory affidavit, Jesus Bascos‟
affidavit, and Juanito Morden‟s “Salaysay.” However, both the trial court and the Court of Appeals have
concluded that these affidavits were not enough to overcome the presumption.

Petitioner’s affidavit about the hijacking was based on what had been told her by Juanito Morden. It was
not a first-hand account. While it had been admitted in court for lack of objection on the part of private
respondent, the respondent Court had discretion in assigning weight to such evidence. We are bound by
the conclusion of the appellate court.

In a petition for review on certiorari, we are not to determine the probative value of evidence but to
resolve questions of law. Secondly, the affidavit of Jesus Bascos did not dwell on how the hijacking took
place.

Thirdly, while the affidavit of Juanito Morden, the truck helper in the hijacked truck, was presented as
evidence in court, he himself was a witness as could be gleaned from the contents of the petition.
Affidavits are not considered the best evidence if the affiants are available as witnesses. The subsequent
filing of the information for carnapping and robbery against the accused named in said affidavits did not
necessarily mean that the contents of the affidavits were true because they were yet to be determined
in the trial of the criminal cases.”

4.7. MECHANICAL DEFECTS.

Damage or injury that can be traced to mechanical defects is not a damage or injury that is caused by
fortuitous event. The prevailing rule in this jurisdiction is that a carrier is liable to its passengers for
damages caused by mechanical defects of the conveyance.

a. Thus, in Son v. Cebu Autobus Company, the Supreme Court held a common carrier liable for damages
to a passenger for injuries caused by an accident due to the breakage of a faulty drag-link spring. There
was also no fortuitous event in Necesito v. Paras23 although it was established that the accident was
caused by the fracture of the vehicle’s right steering knuckle, which was defective in that its center or
core was not compact but “bubbled and cellulous.” Similarly, there is no fortuitous event if the breaks of
the vehicle will not work because defective breaks are curable and preventable.

b. The Supreme Court explained in Necesito v. Paras25 the rationale for the application of the rule:

“x x x In the American law, where the carrier is held to the same degree of diligence as under the new
Civil Code, the rule on the liability of carriers for defects of equipment is thus expressed: “The
preponderance of authority is in favor of the doctrine that a passenger is entitled to recover damages
from a carrier for an injury resulting from a defect in an appliance purchased from a manufacturer,
whenever it appears that the defect would have been discovered by the carrier if it had exercised the
degree of care which under the circumstances was incumbent upon it, with regard to inspection and
application of the necessary tests. For the purposes of this doctrine, the manufacturer is considered as
being in law the agent or servant of the carrier, as far as regards the work of constructing the appliance.
According to this theory, the good repute of the manufacturer will not relieve the carrier from liability.”
(10 Am. Jur. 205, s. 1324;see also Pennsylvania R. Co. v. Roy, 102 U.S. 451; 20 L. Ed. 141; Southern R. Co.
v. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788; Ann Cas. 1916E929)

The rationale of the carrier’s liability is the fact that the passenger has neither choice nor control over
the carrier in the selection and use of the equipment and appliances in use by the carrier. Having, no
privity whatever with the manufacturer or vendor of the defective equipment, the passenger has no
remedy against him, while the carrier usually has. It is but logical, therefore, that the carrier, while not an
insurer of the safety of his passengers, should nevertheless beheld to answer for the flaws of his
equipment if such flaws were at all discoverable. Thus Hannen, J., in Francis v. Cockrell, LR 5 Q. P. 184,
said:

Tn the ordinary course of things, the passenger does not know whether the carrier has himself
manufactured the means of carriage, or contracted with someone else for its manufacture. If the carrier
has contracted with someone else the passenger does not usually know who that person is, and in no
case has he any share in the selection.
The liability of the manufacturer must depend on the terms of the contract between him and the carrier,
of which the passenger has no knowledge, and over which he can have no control, while the carrier can
introduce what stipulations and take what securities he may think proper.

For injury resulting to the earner himself by the manufacturer’s want of care, the carrier has a remedy
against the manufacturer; but the passenger has no remedy against the manufacturer for damage arising
from a mere breach of contract with the carrier . . . Unless, therefore, the presumed intention of the
parties be that the passenger should, in the event of his being injured by the breach of the
manufacturer’s contract, of which he has no knowledge, be without remedy, the only way in which effect
can be given to a different intention is by supposing that the carrier is to be responsible to the passenger,
and to look for his indemnity to the person whom he selected and whose breach of contract has caused
the mischief/ (29 ALR 789)

And in the leading case of Morgan v. Chesapeake & O. R. Co. 15 LRA (NS) 790,16 Ann. Cas. 608, the
Court, in holding the carrier responsible for damages caused by the fracture of a car axle, due to a „sand
hole‟ in the course of moulding the axle, made the following observations.

The carrier, in consideration of certain well-known and highly valuable rights granted to it by the public,
undertakes certain duties toward the public, among them being to provide itself with suitable and safe
cars and vehicles in which to carry the traveling public. There is no such duty on the manufacturer of the
cars.

There is no reciprocal legal relation between him and the public in this respect. When the carrier elects
to have another build its cars, it ought not to be absolved by that fact from its duty to the public to
furnish safe cars. The carrier cannot lessen its responsibility by shifting its undertaking to another’s
shoulders. Its duty to furnish safe cars is side by side with its duty to furnish safe track, and to operate
them in a safe manner. None of its duties in these respects can be sublet so as to relieve it from the full
measure primarily exacted of it by law.

The carrier selecta the manufacturer of its cars, if it does not itself construct them, precisely as it does
those who grade its road, and lay its tracks, and operate its trains. That it does not exercise control over
the former is because it elects to place that matter in the hands of the manufacturer, instead of retaining
the supervising control itself. The manufacturer should be deemed the agent of the carrier as respects its
duty to select the material out of which its cars and locomotive are built, as well as in inspecting each
step of their construction. If there be tests known to the crafts of car builders, or iron molders, by which

such defects might be discovered before the part was incorporated into the car, then the failure of the
manufacturer to make the test will be deemed a failure by the carrier to make it. This is not a vicarious
responsibility. It extends, as the necessity of this business demands, the rule of respondent superior to a
situation which falls clearly within its scope and spirit. Where an injury is inflicted upon a passenger by
the breaking or wrecking of a part of the train on which he is riding, it is presumably the result of
negligence at some point by the carrier.
As stated by Judge Story, in Story on Bailments, sec. 601a: „When the injury or damage happens to the
passenger by the breaking down or overturning of the coach, or by any other accident occurring on the
ground, the presumption prima facie is that it occurred by the negligence of the coachmen, and onus
probandi is on the proprietors of the coach to establish that there has been no negligence whatever, and
that the damage or injury has been occasioned by inevitable casualty; or by some cause which human
care and foresight could not prevent; for the law will, in tenderness to human life and limb, hold the
proprietors liable for the slightest negligence, and will compel them to repel by satisfactory proofs every
imputation thereof/ When the passenger has [proven] his injury as the result of a breakage in the car or
the wrecking of the train on which he was being carried, whether the defect was in the particular car in
which he was riding or not, the burden is then cast upon the carrier to show that it was due toa cause or
causes which the exercise of the utmost human skill and foresight could not prevent. And the carrier in
this connection must show, if the accident was due to a latent defect in the material or construction of
the car, that not only could it not have discovered the defect by the exercise of such care, but that the
builders could not by the exercise of the same care have discovered the defect or foreseen the result.
This rule applies the same whether the defective car belonged to the carrier or not/

In the case now before us, the record is to the effect that the only test applied to the steering knuckle in
question was a purely visual inspection every thirty days, to see if any cracks developed. It nowhere
appears that either the manufacturer or the carrier at any time tested the steering knuckle to ascertain
whether its strength was up to standard, or that it had no hidden flaws that would impair that strength.
And yet the carrier must have been aware of the critical importance of the knuckle’s resistance; that its
failure or breakage would result in loss of balance and steering control of the bus, with disastrous effects
upon the passengers.

No argument is required to establish that a visual inspection could not directly determine whether the
resistance of this critically important part was not impaired. Nor has it been shown that the weakening
of the knuckle was impossible to detect by any known test; on the contrary, there is testimony that it
could be detected. We are satisfied that the periodical visual inspection of the steering knuckle as
practiced by the carrier’s agents did not measure up to the required legal standard of „utmost diligence
of very cautious persons‟ —„as far as human care and foresight can provide‟, and therefore that the
knuckle’s failure can not be considered a fortuitous event that exempts the carrier from responsibility.
(Lasam v. Smith, 45 Phil. 607; Son v. Cebu Autobus Co., 94 Phil. 892)

It may be impracticable, as appellee argues, to require of carriers to test the strength of each and every
part of its vehicles before each trip; but we are of the opinion that a due regard for the carrier’s
obligations toward the traveling public demands adequate periodical tests to determine the condition
and strength of those vehicle portions the failure of which may endanger the safety of the passengers.

c. One of the reasons why the carrier is made liable despite the presence of mechanical defect is the
absence of privity between the passenger and the manufacturer. The Supreme Court explained in
Necesito v. Paras26that the passenger cannot directly sue the manufacturer because of such absence of
privity. This observation appears to be inaccurate because the absence of privity does not prevent the
passenger from suing the manufacturer directly for tort. The manufacturer can be sued directly
fornegligence.27 In fact, the manufacturer is now liable based on his strict liability under Article 97 of the
Consumer Act of the Philippines.

d. In the United States, the privity obstacle in actions against manufacturers had already been removed
as early as 1916 in Justice Cardozo’s decision in McPherson v. Buick Motor Company.26 As observed by
one authority, “the citadel of privity has crumbled and today the ordinary tests of duty, negligence and
liability are applied widely to a man who supplies a chattel for the use of another.

e. At any rate, it appears from the above-quoted decision that it was not the intention of the Court to
make the liability of the carrier to partake the nature of strict liability. After all, the carrier is not the
insurer of the lives of his passengers or the absolute safety of the goods. What is required is exercise of
extraordinary diligence. Thus, the implication is that there may be exceptional instances when the carrier
is free from liability even if there is mechanical defect. As the Supreme Court stated, “a due regard for
the carrier’s obligations toward the traveling public demands adequate periodical tests to determine the
condition and strength of those vehicle portions the failure of which may endanger the safety of the
passengers.”30

f. The Supreme Court seems to say that the carrier can still claim that mechanical defects may, in proper
case, be considered caso fortuito if adequate inspection is made. It is important, however, that the
periodic tests must be adequate. Thus, the carrier cannot escape liability by the mere proof that it
recently inspected the vehicle. Thus, in Landingin v. Pantranco the carrier claimed that it inspected the
cross joint of the subject bus only a day before the accident and found the cross joint to be in order.

Nevertheless, the Supreme Court ruled that the defective cross joint cannot be regarded as caso fortuito
because it was not established that due regard to all circumstances was given when the inspection was
being done. It was not shown that the inspection was made with due consideration of the fact that the
vehicle would travel heavily laden with passengers, and that it would be traversing mountainous,
circuitous and ascending roads. Such circumstances would naturally tax the entire bus more heavily than
it would under ordinary circumstances.

4.8. TIRE BLOWOUTS.

The rule on mechanical defects applies to“tire blow-outs.” Thus, in Juntilla v. Fontanar the Supreme
Court did not consider the explosion of the tire of the jeepney as a fortuitous event although the tires
were allegedly in good condition; no evidence was presented to show that the accident was due to
adverse road conditions. The explosion could have been caused by too much air pressure injected into
the tires coupled bythe fact that the jeepney was overloaded and speeding at the time of the accident.
4.9. OTHER INVALID DEFENSES. The common carrier cannot likewise invoke explosion, the presence of
worm and rats, water damage, and barratry.

a. Explosion. Damage to cargo from explosion of another cargo is not ordinarily attributable to peril of
the sea or accidents of navigation particularly where it occurs after the vessel has ended its voyage and is
finally moored to unload.34

b. Worms and Rats. Whenever the ship is damaged by worms resulting in damage to the cargo, the
carrier cannot cite the same as an excuse. The same is true with respect to damage of the cargo by rats
whether the cargo was directly damaged by the rats or by water let in through holes gnawed by rats in
the ship or her fixtures.

c. Water Damage. Damage by seawater is not a valid excuse where the water gains entrance through a
port that had been left open or insufficiently fastened on sailing.36

d. Barratry. The shipowner cannot escape liability to third persons if the cause of damage is barratry. It is
an act committed by the master or crew of the ship for some unlawful or fraudulent purpose, contrary to
their duty to the owner. Intentional fraud or breach of trust or willful violation of law is necessary to
constitute barratry. Barratry includes theft by the purser of a specie shipped on board and fraudulently
running the ship ashore.

PROBLEMS AND CASES:

1. Philip Mauricio shipped a box of cigarettes to a dealer in Naga City through Bicol Bus Company (BBC).
When the bus reached Lucena City, the bus developed engine trouble. The driver brought the bus to a
repair shop in Lucena where he was informed by the mechanic that an extensive repair was necessary,
which would take at least two days. While the bus was in the repair shop, Typhoon Coring lashed at
Quezon Province. The cargoes inside the bus, including Mauricio’s cigarettes, got wet and were totally
spoiled. Mauricio sued BBC for the damage to his cargoes.

A: The Bicol Bus Company (BBC) is liable for damages to the cargoes lost by Mauricio. While a typhoon is
a natural disaster, the same cannot be considered the only cause of the loss. The facts indicate that the
defect is foreseeable and could have been detected through the exercise of reasonable care.

In addition, carrier’s employees should have secured the cargoes while the bus was being repaired for
two days. (1987)

2. Pasahero, a paying passenger, boarded a Victory Liner bus bound for Olongapo. He chose a seat at the
front near the bus driver. Pasahero told the bus driver that he had valuable items in his bag which was
placed near his feet. Since he had not slept for 24 hours, he requested the driver to keep an eye on the
bag should he doze off during the trip.

a) There have been incidents of unknown persons throwing stones at passing vehicles from the
overpasses in the North Expressway. While the bus was traversing the superhighway, a stone hurled from
the Sto. Domingo overpass smashed the front windshield and hit Pasahero in the face. Pasahero lost an
eye and suffered other injuries.

Can Pasahero hold the bus liable for damages? Explain.

b) Supposing that two armed men staged a hold-up while the bus was speeding along the North
Expressway. One of them pointed a gun at Pasahero and stole not only his bag, but his wallet as well.

Is Victory Liner liable to Pasahero? Explain.

A: a) Pasahero can hold the bus company liable. The company failed to exercise utmost diligence in
securing the safety of the passengers. Stone throwing was foreseeable because of prior incidents of
stone throwing. Hence, the bus company should have employed adequate precautionary measures for
its passengers.

b) Pasahero may not hold the carrier liable. Hand carried luggage are governed by the rules on necessary
deposit. Under Article 2001 of the Civil Code, an act of a thief is not considered force majeure unless
done with the use of arms or through an irresistible force. There was use of arms in the given problem,
hence, Pasahero may not hold Victory Liner liable. (1986)

3. Mariter, a paying passenger, was hit above her left eye by a stone hurled at the bus by an unidentified
bystander as the bus was speeding through the National Highway. The bus owner‟s personnel lost no
time in bringing Mariter to the provincial hospital where she was confined and treated. Mariter wants to
sue the bus company for damages and seeks your advice whether she can legally hold the bus company
liable. What will you advise her?

A: I will advise Mariter that she cannot legally hold the bus company liable if the stone throwing was
entirely unforeseeable and the carrier exercised utmost diligence. However, I will also inform her that
the burden is on the carrier to prove such exercise of due diligence. If she decides to file a case in court,
all that she will prove is that she was a passenger and she was injured while on board the bus. (1994)

4. M. Dizon Trucking (Dizon) entered into a hauling contract with Fairgoods Corporation (FAIRGOODS)
whereby the former bound itself to haul the latter’s 2,000 sacks of soya bean meal from Manila Port
Area to Calamba, Laguna. To carry out faithfully its obligation DIZON subcontracted with Enrico Reyes the
delivery of 400 sacks of the soyabean meal. Aside from the driver, three male employees of Reyes rode
the truck with the cargo. While the truck was on its way to Laguna two strangers suddenly stopped the
truck and hijacked the cargo. Investigation by the police disclosed that one of the hijackers was armed
with a bladed weapon while the other was unarmed. For failure to deliver the 400 sacks, FAIRGOODS
sued Dizon for damages.

Dizon in turn set up a third-party complaint against Reyes which the latter resisted on the ground that
the loss was due to force majeure. Did the hijacking constitute force majeure to exculpate Reyes from
the liability to Dizon? Discuss fully.

A: No, the hijacking cannot exculpate Reyes from liability. The hijacking in this case cannot be considered
a force majeure and it does not appear that the four male employees of Reyes were overwhelmed by
irresistible force. There were only two hijackers, with only one of them being armed with a bladed
weapon. (1995)

5. AM Trucking, a small company, operates two trucks for hire on selective basis. It caters to only a few
customers, and its trucks do not make regular or scheduled trips. It does not even have a certificate of
public convenience.

On one occasion, Reynaldo contracted AM to transport, for a fee, 100 sacks of rice from Manila to Tarlac.
However, AM failed to deliver the cargo because its truck was hijacked when the driver stopped in
Bulacan to visit his girlfriend. May AM set up the hijacking as a defense to defeat Reynaldo’s claim?

A: No, AM Trucking may not set up the hijacking as a defense to defeat Reynaldo’s claim. A common
carrier is presumed to be negligent and it is up to said carrier to prove the exercise of extraordinary
diligence. It also does not appear that the hijacking was attended by grave or irresistible threat, violence,
or force. The facts indicate that the truck was left unattended while he was visiting his girlfriend. (1996)

6. Alejandro Camalig of Alegria, Cebu, is engaged in buying copra, charcoal, firewood and used bottles
and in reselling them in Cebu City. He uses two big ISUZU Trucks for the purpose; however, he has no
certificate of public convenience or franchise to do business as a carrier. On the return trip to Alegria, he
loads his trucks with various merchandise of other merchants in Alegria and the neighboring
municipalities of BAD IAN and GINATILAN.

While passing the zigzag road between CARCAR and BARILI, Cebu which is midway between Cebu City
and Alegria, the truck was hijacked by three armed men who took all the boxes of sardines and
kidnapped the driver and his helper, releasing them in Cebu City only two (2) days later. Pedro Rabor
sought to recover from Alegria the value of the sardines. The latter contends that he is not liable therefor
because [of the] occurrence of the loss was due to a cause beyond his control. If you were the judge,
would you sustain the contention of Alejandro?
A: If I were the judge, I would sustain the contention of Alejandro that he is not liable for the loss of the
goods provided that he can prove that he exercised extraordinary diligence. The hijacking by three
armed men of the truck used by Alejandro is one of the causes which is beyond the control of the carrier.
Thus, if the carrier can prove that the hijacking was not foreseeable, the carrier may be adjudged free
from liability. (De Guzman v. CA, G.R. No. 47822, December 27, 1988)

On March 1, 1987, San Miguel Corporation insured several beer bottle cases with an aggregate value of
P5,836,222.80 with petitioner Philippine American General Insurance Company. The cargo was loaded
on board the MTV Peatheray Patrick-G to be transported from Mandaue City to Bislig, Surigao del Sur.
After having been cleared by the Coast Guard Station in Cebu the previous day, the vessel left the port of
Mandaue City for Bislig, Surigao del Sur on March2, 1987. The weather was calm when the vessel started
its voyage.

The following day, March 3, 1987, M/V Peatheray Patrick-G listed and subsequently sunk off Cawit Point,
Cortes, Surigao del Sur. As a consequence thereof, the cargo belonging to San Miguel Corporation was
lost. Subsequently, San Miguel Corporation claimed the amount of its loss from petitioner. Upon
petitioner’s request, on March 18, 1987, Mr. Eduardo Sayo, a surveyor from the Manila Adjusters and
Surveyors Co.,went to Taganauan Island, Cortes, Surigao del Sur where the vessel was cast ashore, to
investigate the circumstances surrounding the loss of the cargo. In his report, Mr. Sayo stated that the
vessel was structurally sound and that he did not see any damage or crack thereon. He concluded that
the proximate cause of the listing and subsequent sinking of the vessel was the shifting of ballast water
from starboard to portside. The said shifting of ballast water allegedly affected the stability of the MTV
Peatheray Patrick-G. Thereafter, petitioner paid San Miguel Corporation the full amount of P5,836,222.80
pursuant to the terms of their insurance contract. PMGIC thereafter filed a claim against the carrier as
subrogee of SMC.

Is the carrier liable?

No, the carrier is not liable. MTV Peatheray Patrick-G, the vessel that sunk, encountered strong winds
and huge waves ranging from six to ten feet in height. The vessel listed at the port side and eventually
sunk at Cawit Point, Cortes, Surigao del Sur. It was adequately shown that before the M/V Peatheray
Patrick-G left the port of Mandaue City, the Captain confirmed with the Coast Guard that the weather
condition would permit the safe travel of the vessel to Bislig, Surigao del Sur. Thus, he could not be
expected to have foreseen the unfavorable weather condition that awaited the vessel in Cortes, Surigao
del Sur. It was the presence of the strong winds and enormous waves which caused the vessel to list, keel
over, and consequently lose the cargo contained therein. That the vessel was granted SOLAS clearance
by the Philippine Coast Guard on March 1, 1987 to depart from Mandawe City for Bislig, Surigao del Sur
as evidenced by a certification issued to D.C. Gaerlan Oil Products by Coast Guard Station Cebu dated
December 23, 1987.

Based on the foregoing circumstances, “LCT Peathe-ray Patrick-G” should be considered seaworthy
vessel at the time she undertook that fateful voyage on March 2, 1987. (The Philippine American General
Insurance Co., Inc. v. MCG Marine Services, Inc. and Doroteo Gaerland, No.135645, March 8, 2005)
8. Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondent-defendant’s bus bearing No.
409 at San Nicolas, Iriga City on 16September 1971 at about 6:00 P.M. While said bus No. 409 was in due
course negotiating the distance between Iriga City and Naga City, upon reaching the vicinity of the
cemetery of the Municipality of Baao, Camarines Sur, on the way to Naga City, an unidentified man, a
bystander along said national highway, hurled a stone at the left side of the bus, which hit petitioner
above his left eye. Petitioner lost partially his left eye’s vision and sustained a permanent scar above the
left eye.

Was the carrier able to rebut the presumption of negligence imposed on common carriers?

A: Yes, contrary facts were established by the carrier proving either that the carrier had exercised the
degree of diligence required by law or the injury suffered by the passenger was due to a fortuitous
event.

In the instant case, the injury sustained by the petitioner was in no way due to any defect in the means
of transport or in the method of transporting or to the negligent or willful acts of private respondent’s
employees, and therefore involving no issue of negligence in its duty to provide safe and suitable cars as
well as competent employees, with the injury arising wholly from causes created by strangers over which
the carrier had no control or even knowledge or could not have prevented, the presumption is rebutted
and the carrier is not and ought not to be held liable.

To rule otherwise would make the common carrier the insurer of the absolute safety of its passengers
which is not the intention of the lawmakers.

Clearly under the above provision, a tort committed by a stranger who causes injury to a passenger does
not accord the latter a cause of action against the carrier. The negligence for which a common carrier is
held responsible is the negligent omission by the carrier’s employees to prevent the tort from being
committed when the same could have been foreseen and prevented by them. Further, under the same
provision, it is to be noted that when the violation of the contract is due to the willful acts of strangers,
as in the instant case, the degree of care essential to be exercised by the common carrier for the
protection of its passenger is only that of a good father of a family.

Although the suggested precaution could have prevented the injury complained of, the rule of ordinary
care and prudence is not so exacting as to require one charged with its exercise to take doubtful or
unreasonable precautions to guard against unlawful acts of strangers.

The carrier is not charged with the duty of providing or maintaining vehicles as to absolutely prevent any
and all injuries to passengers. Where the carrier uses cars of the most approved type, in general use by
others engaged in the same occupation, and exercises a high degree of care in maintaining them in
suitable condition, the carrier cannot be charged with negligence in this respect.
Finally, petitioner contends that it is to the greater interest of the State if a carrier is made liable for such
stone-throwing incidents rather than have the bus riding public lose confidence in the transportation
system.

Sad to say, we are not in a position to so hold; such a policy would be better left to the consideration of
Congress which is empowered to enact laws to protect the public from the increasing risks and dangers
of lawlessness in society.

(Pilapil v. Court of Appeals, G.R. No. 52159, December 22, 1989)

On November 18, 1989, a bus of petitioner figured in an accident with a jeepney in Kauswagan, Lanao
del Norte, resulting in the death of several passengers of the jeepney, including two Maranaos. Crisanto
Generalao, a volunteer field agent of the Constabulary Regional Security Unit No. X,conducted an
investigation of the accident. The owner of the jeepney was a Maranao residing in Dela bayan, Lanao del
Norte and certain Maranaos were planning to take revenge on the petitioner by burning some of its
buses.

Generalao rendered a report on his findings to Sgt. Reynaldo Bastasa of the Philippine Constabulary
Regional Headquarters at Cagayan de Oro. Upon the instruction of Sgt. Bastasa, he went to see Diosdado
Bravo, operations manager of petitioner, its main office in Cagayan de Oro City. Bravo assured him that
the necessary precautions to insure the safety of lives and property would be taken. At about 6:45 P.M.
on November 22, 1989, three armed Maranaos who pretended to be passengers, seized a bus of
petitioner at Linamon, Lanao del Norte while on its way to Iligan City. Among the passengers of the bus
was Atty. Caorong. The leader of the Maranaos, identified as one Bashier Mananggolo, ordered the
driver, Godofredo Cabatuan, to stop the bus on the side of the highway. Mananggolo then shot Cabatuan
on the arm, which caused him to slump on the steering wheel.

One of the companions of Mananggolo started pouring gasoline inside the bus, as the other held the
passengers at bay with a handgun. Mananggolo then ordered the passengers to get off the bus. The
passengers, including Atty. Caorong, stepped out of the bus and went behind the bushes in a field some
distance from the highway. However, Atty. Caorong returned to the bus to retrieve something from the
overhead rack. At that time, one of the armed men was pouring gasoline on the head of the driver.
Cabatuan, who had meantime regained consciousness, heard Atty. Caorong pleading with the armed
men to spare the driver as he was innocent of any wrong doing and was only trying to make a living.

The armed men were, however, adamant as they repeated the warning that they were going to burn the
bus along with its driver. During this exchange between Atty. Caorong and the assailants, Cabatuan
climbed out of the left window of the bus and crawled to the canal on the opposite side of the highway.
He heard shots from inside the bus. Larry de laCruz, one of the passengers, saw that Atty. Caorong was
hit. Then the bus was set on fire. Some of the passengers were able to pull Atty.Caorong out of the
burning bus and rush him to the Mercy Community Hospital in Iligan City, but he died while undergoing
operation.
a. Is the carrier liable?

b. Was there contributory negligence on the part of the injured party?

A: (a) Yes, the carrier is liable. Despite warning by the Philippine take revenge on the petitioner by
burning some of its buses and the assurance of petitioner’s operation manager, Diosdado Bravo, that the
necessary precautions would be taken, petitioner did nothing to protect the safety of its passengers. Had
petitioner and its employees been vigilant they would not have failed to see that the malefactors had a
large quantity of gasoline with them. Under the circumstances, simple precautionary measures to
protect the safety of passengers, such as frisking passengers and inspecting their baggages, preferably
with non-intrusive gadgets such as metal detectors, before allowing them on board could have been
employed without violating the passenger’s constitutional rights.

(b) No, Atty. Caorong was not guilty of contributory negligence in returning to the bus to retrieve his
property. It should be pointed out that the intended targets of the violence were petitioners and its
employees, not its passengers. The assailant’s motive was to retaliate for the loss of life of two Maranaos
as a result of the collision between petitioner’s bus and the jeepney in which the two Maranaos were
riding.

Mananggolo, the leader of the group which had hijacked the bus, ordered the passengers to get off the
bus as they intended to burn it and its driver. The armed men actually allowed Atty. Caorong to retrieve
something from the bus. What apparently angered them was his attempt to help the driver of the bus by
pleading for his life. He was playing the role of the good Samaritan. Certainly, this act cannot be
considered an act of negligence, let alone recklessness. (Fortune Express, Inc. v. Court of Appeals, G.R.
No. 119756, March 18, 1999)

10. On February 27, 1918, the defendant was engaged in the business of carrying passengers for hire
from one point to another in the Province of La Union and the surrounding provinces. On the date
mentioned, he undertook to convey plaintiff from San Fernando to Currimao, Ilocos Norte, in a Ford
automobile. On leaving San Fernando, the automobile was operated by a licensed chauffeur, but after
having reached the town of San Juan, the chauffeur allowed his assistant, Remigio Bueno, to drive the
car. Bueno held to driver’s license, but had some experience in driving, and with the exception - of some
slight engine trouble while passing through the town of Luna, the car functioned well until after the
crossing of the Abra River in Tagudin, when, according to the testimony of witnesses for the plaintiffs,
defects developed in the steering gear so as to make accurate steering impossible, and after zigzagging
for a distance of about half a kilometer, the car left the road and went down a steep embankment.

Was there a fortuitous event?

A: No. There was no fortuitous even. Some extraordinary circumstance independent of the will of the
obligor, or of his employees, is an essential element of a caso fortuito. This element is lacking in this
case. It is not suggested that the accident in question was due to an act of God or to adverse road
conditions which could not have been foreseen. As far as the record shows, the accident was caused
either by defects in the automobile or else through the negligence of its driver.

That is not a caso fortuito. Neither under the American nor Spanish law is a carrier of passengers an
absolute insurer against the risks of travel from which the passenger may protect himself by exercising
ordinary care and diligence.

The case of Alba v. Sociedad Anonima de Tranvias, Jurisprudencia Civil, vol. 102,p. 928 affords a good
illustration of the application of this principle.

In that case, Alba, a passenger on a street car, was standing on the platform of the car while it was in
motion. The car rounded a curve causing Alba to lose his balance and fall off the platform, sustaining
severe injuries. In an action brought by him to recover damages, the supreme court of Spain held that
inasmuch as the car at the time of the accident was travelling at a moderate rate of speed and there was
no infraction of the regulations, and the plaintiff was exposed to no greater danger than that inherent in
that particular mode of travel, the plaintiff could not recover, especially so since he should have been on
his guard against a contingency as natural as that of losing his balance to a greater or less extent when
the car rounded the curve. But such is not the present case; here the passengers had no means of
avoiding the danger or escaping the injury. (Lasam, et al. v. Smith, Jr., G.R.No. 19495, February 2, 1924)

11. Plaintiffs Franklin G. Gacal and his wife, Corazon M. Gacal; BonifacioS. Anislag and his wife, Mansueta
L. Anislag; and the late Elma deGuzman, were then passengers boarding defendant’s BAC at Davao
Airport for a flight to Manila, not knowing that on the same flight, Macalinog, Taurac Pendatum known
as Commander Zapata, Nasser Omar, Liling Pusuan Radia, Dimantong Dimarosing and Mike Randa, all of
Marawi City and members of the Moro National Liberation Front (MNLF), were their co-passengers,
three armed with grenades, two with .45 caliber pistols, and one with a .22 caliber pistol. Ten minutes
after take-off at about 2:30 in the afternoon, the hijackers brandishing their respective firearms
announced the hijacking of the aircraft and directed its pilot to fly to Libya. With the pilot explaining to
them especially to its leader, Commander Zapata, of the inherent fuel limitations of the plane and that
they are not rated for international flights, the hijackers directed the pilot to fly to Sabah. With the same
explanation, they relented and directed the aircraft to land at Zamboanga Airport, Zamboanga City for
refueling. The aircraft landed at 3:00 o’clock in the afternoon of May 21, 1976 at Zamboanga Airport.
When the plane began to taxi at the runway, it was met by two armored cars of the military with
machine guns pointed at the plane, and it stopped there. The rebels through its commander demanded
that a DC-aircraft take them to Libya with the President of the defendant company as hostage and that
they be given $375,000 and six armalites, otherwise they will blow up the plane if their demands will not
be met by the government and Philippine Air Lines. Meanwhile, the passengers were not served any
food nor water and it was only on May23, a Sunday, at about 1:00 o‟clock in the afternoon that they
were served 1/4 slice of a sandwich and 1/10 cup of PAL water. After that, relatives of the hijackers were
allowed to board the plane but immediately after they alighted therefrom, an armored car bumped the
stairs. That commenced the battle between the military and the hijackers which led ultimately to the
liberation of the surviving crew and the passengers, with the final score of ten passengers and three
hijackers dead on the spot and three hijackers captured. Frank Gacal was unhurt. Mrs. Corazon M. Gacal
suffered injuries in the course of her jumping out of the plane when it was peppered with bullets by the
army and after two hand grenades exploded inside the plane. She was hospitalized at General Santos
Doctors Hospital, General Santos City, for two days, spending P245.60 for hospital and

medical expenses, Assistant City Fiscal Bonifacio S. Anisiag also escaped unhurt but Mrs. Anislag suffered
a fracture at the radial bone of her left elbow for which she was hospitalized and operated on at the San
Pedro Hospital, Davao City, and therefore, at Davao Regional Hospital, Davao City, spending P4,500.00.
Elma de Guzman died because of that battle.

Was the hijacking or air piracy during martial law and under the circumstances obtaining in his case a
caso fortuito or force majeure which would exempt an aircraft from payment of damages to its
passengers whose lives were put in jeopardy and whose personal belongings were lost during the
incident?

Yes. There was force majeure.

The failure to transport petitioners safely from Davao to Manila was due to the skyjacking incident
staged by six passengers of the same plane, all members of the MoroNational Liberation Front (MNLF),
without any connection with private respondent, hence, independent of the will of either the PAL or of it
passengers.

Under normal circumstances, PAL might have foreseen the skyjacking incident which could have been
avoided had there been a more thorough frisking of passengers and inspection of baggages as
authorized by R.A. 6235. But the incident in question occurred during Martial Law where there was a
military take-over of airport security including the frisking of passengers and the inspection of their
luggage preparatory to boarding domestic and international flights. Otherwise stated, these events
rendered it impossible for PAL to perform its obligations in a normal manner and obviously it cannot be
faulted with negligence in the performance of duty taken over by the Armed Forces of the Philippines
tothe exclusion of the former. (Gacal, et al. v. Philippine Airlines, Inc., G.R. No.55300, March 15, 1990,
183 SCRA 189)