Beruflich Dokumente
Kultur Dokumente
PRELIMINARY CONSIDERATIONS:
A. Governing Laws
1. New Civil Code Primary law
2. Warsaw
Convention
for
international transportation by air
3. Code of Commerce governs
suppletorily; it governs maritime
transaction
4. Carriage of Goods by Sea Act for
transportation by sea; governs
suppletorily
5. Salvage Law
6. Public Service Act
7. Article XII Sec 11 on operation of
public convenience of the 1987
Philippine Constitution
B. Concept of Public Utility & public
service
Sec. 13 (b) of the Public Service
Act provides that: The term 'public
service' includes every person that
now or hereafter may own, operate,
manage, or control in the Philippines,
for hire or compensation, with general
or
limited
clientele,
whether
permanent, occasional or accidental,
and done for general business
purposes,
any
common
carrier,
railroad,
street
railway,
traction
railway, sub-way motor vehicle, either
for freight or passenger, or both with
or without fixed route and whatever
may be its classification, freight or
carrier service of any class, express
service, steamboat, or steamship line,
pontines, ferries, and water craft,
engaged in the transportation of
passengers
or
freight
or
both,
shipyard, marine railway, marine repair
shop, wharf or dock, ice plant, icerefrigeration plant, canal, irrigation
system, gas electric light, heat and
power, water supply and power,
petroleum, sewerage system, wire or
wireless communications system, wire
or wireless broadcasting stations and
other similar public services: Provided,
however, That a person engaged in
agriculture, not otherwise a public
service, who owns a motor vehicle and
uses it personally and/or enters into a
special contract whereby said motor
vehicle
is
offered
for
hire
or
compensation to a third party or third
engaged in agriculture, not itself or
themselves a public service, for
operation by the latter for a limited
time and for a specific purpose directly
communication
utilities
and
services,
radio
communications systems, wire or
wireless telephone and telegraph
systems, radio and television
broadcasting systems and other
similar public utilities
5. Energy Regulatory Board electric
or power companies
6. National Water Resources Council
water resources
7. Civil Aeronautics Board air
transportation
Q: What conditions must concur in the
grant
of
certificate
of
public
convenience and necessity?
A: 1. The grantee must be a citizen of
the Philippines or a corporation or
entity 60% of which is owned by such
citizens; 2. The grantee must have
sufficient
financial
capability
to
undertake the service; and 3. The
service will promote public interest and
convenience in a proper and suitable
manner.
*In Tatad v Garcia, the SC held that
the controlling factor is the citizenship
of the person operating a common
carrier.
Guiding Principles:
1. Prior or Old Operator Rule the
first licensee will be protected in
his investment and will not be
subjected to ruinous competition.
*No
certificate
of
public
convenience and necessity will be
issued to other operator as long as
the prior operator still in operation
and can satisfy the public and that
it still has the capacity to do so.
2. Protection Investment Rule
protects from unfair competition
3. Prior Applicant Rule protects the
first applicant. Principle: all things
being equal
*Public interest is the first and
paramount consideration.
E. Concept
of
franchise
and
certificate of public convenience
Franchise is a grant or privilege from
the sovereign power.
Purpose
of
this
rule:
easy
identification of the owner to be sued
for liability.
Recourse: Registered owner may
bring the case to the court to sue the
buyer or operator of the vehicle at
fault.
Exception: in case of stolen vehicle
registered owner is not liable.
*In the case of Duavit v CA, the SC
held that the registered owner is not
liable if the vehicle was taken from his
garage without his knowledge or
consent. To hold the registered owner
liable would be absurd as it would be
holding liable the owner of a stolen
vehicle for an accident caused by the
person who stole such vehicle.
Kabit System is an arrangement
whereby a person who has been
granted
a
certificate
of
public
convenience allows other persons who
own motor vehicles to operate them
under his license, sometimes for a fee
or percentage of the earnings.
*Kabit system is invariably recognized
as being contrary to public policy and
therefore void and inexistent under
Article 1409 of the New Civil Code.
*If the registered owner and the buyer
entered into this transaction they are
In pari delicto thus, in case something
happen the court will not aid them.
The court will leave them as they were.
*This arrangement is a circumvention
of the requirement for license.
OBLIGATIONS OF THE COMMON CARRIER
IN A CONTRACT OF CARRIAGE OF GOODS:
A. Vigilance over the goods
1. Duty to exercise extraordinary
diligence Article 1733 of the
New Civil Code states that:
Common carriers, from the nature
of their business and for reasons of
public policy, are bound to observe
extraordinary diligence in the
vigilance over the goods and for
the safety of the passengers
transported by them, according to
all the circumstances of each case.
Such extraordinary diligence in the
vigilance over the goods is further
expressed in Articles 1734, 1735,
and 1745, Nos. 5, 6, and 7, while
the extraordinary diligence for the
safety of the passengers is further
set forth in Articles 1755 and
1756.
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.
*Fire is not within the ambit of
natural disaster or calamity.
*Calamity
includes
thunderstorm.
*mechanical defect is not within
the ambit of the natural
disaster; it is within the control
of the common carrier.
Requisites:
1. Proximate cause is the
natural calamity
2. Absence of negligence on
the part of the common
carrier
3. The common carrier must
exercise due diligence to
prevent loss before, during
and after the occurrence of
the disaster
4. Free
from
unreasonable
delay by the common
carrier
or
unreasonable
deviation
b. Public enemy
Article 1739 of the New Civil
Code states that: 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.
*Public enemy includes pirates
however it does not include
robbery and thief.
*Pirates are enemies of all
civilized nation.
General Rule: rebels and
insurreccion is not included.
Without stipulation
1. Within a reasonable
time.
2. Carrier is bound to
forward them in the
first shipment of the
same
or
similar
goods which he may
make to the point of
delivery
b. Consequences of delay
Article 1740 of the New Civil
Code provides that: If the
common
carrier negligently
incurs in delay in transporting
the goods, a natural disaster
shall not free such carrier from
responsibility.
Article 1747 of the New Civil
Code provides that: If the
common carrier, without just
cause,
delays
the
transportation of the goods or
changes the stipulated or usual
route, the contract limiting the
common
carrier's
liability
cannot be availed of in case of
the
loss,
destruction,
or
deterioration of the goods.
Article 370 of the Code of
Commerce provides that: If a
period has been fixed for the
delivery of the goods, it must
be made within such time, and,
for failure to do so, the carrier
shall
pay
the
indemnity
stipulated in the bill of lading,
neither the shipper nor the
consignee being entitled to
anything else. If no indemnity
has been stipulated and the
delay exceeds the time fixed in
the bill of lading, the carrier
shall be liable for the damages
which the delay may have
caused.
Article 371 of the Code of
Commerce provides that: In
case of delay through the fault
by
or
B. Passengers Baggages
Article 1754 of the New Civil Code
provides that: The provisions of
Articles 1733 to 1753 shall apply to the
passenger's baggage which is not in
his personal custody or in that of his
employee. As to other baggage, the
rules in Articles 1998 and 2000 to
2003 concerning the responsibility of
hotel-keepers shall be applicable.
Article 1998 of the New Civil Code
states that: The deposit of effects
made by the travellers in hotels or inns
shall also be regarded as necessary.
The keepers of hotels or inns shall be
responsible for them as depositaries,
provided that notice was given to
them, or to their employees, of the
effects brought by the guests and that,
on the part of the latter, they take the
precautions which said hotel-keepers
or their substitutes advised relative to
the care and vigilance of their effects.
Article 2000 of the New Civil Code
states that: The responsibility referred
to in the two preceding articles shall
include the loss of, or injury to the
personal property of the guests caused
by the servants or employees of the
keepers of hotels or inns as well as
strangers; but not that which may
proceed from any force majeure. The
fact that travellers are constrained to
rely on the vigilance of the keeper of
the hotels or inns shall be considered
in determining the degree of care
required of him.
Article 2001 of the New Civil Code
provides that: The act of a thief or
robber, who has entered the hotel is
not deemed force majeure, unless it is
done with the use of arms or through
an irresistible force.
Article 2002 of the New Civil Code
provides that: The hotel-keeper is not
liable for compensation if the loss is
due to the acts of the guest, his family,
servants or visitors, or if the loss arises
from the character of the things
brought into the hotel.
Article 2003 of the New Civil Code
provides that: The hotel-keeper
cannot free himself from responsibility
by posting notices to the effect that he
is not liable for the articles brought by
the guest. Any stipulation between the
hotel-keeper and the guest whereby
SHIPPER,
D. Extraordinary
diligence
in
carriage by land
1. Vehicles condition
*Owners are required to make
sure that the vehicles they are
using are in good order and
condition.
2. Traffic rules (RA 4136)
*In cases involving breach of
contract of carriage, proof of
violation
of
traffic
rules
confirms that the carrier failed
to
exercise
extraordinary
diligence.
3. Obligation to Inspect
*in overland transportation,
common carrier is not bound
nor empowered to make an
examination of the contents of
packages or bags particularly
those hand carried.
Airline
companies are required to
inspect each and every cargo
brought into the aircraft (RA
6235).
E. Extraordinary
diligence
in
carriage by air
1. Airworthiness - an aircraft, its
engines, propellers and other
components and accessories are of
proper design and construction,
and are safe for air navigation
purposes,
such
design
and
construction being consistent with
accepted engineering practice and
in accordance with aerodynamic
laws and aircraft science (RA 779).
2. Competent and well trained
crew
3. To take the required and
prescribed route
4. Adverse weather conditions or
extreme climatic changes are some
of the perils involved in air travel
consequence
of
which
the
passenger must assume or expect.
5. RA 6235 (An Act Prohibiting
Certain Acts Inimical to Civil
Aviation and for Other Purposes) acts punishable:
a. to compel a change in the
course or destination of an aircraft
of Philippine registry; or
b. to seize or usurp control of the
aircraft while in flight.
ACTIONS IN CASE OF
CONTRACT OF CARRIAGE:
BREACH
OF
A. Causes
of
action
and
nature/extent of liability (culpa
A: Because not
nature
maritime in
4.
i.
ii.
iii.
iv.
5.
E. Charter parties
1. Concept
Article 655 of the Code of
Commerce states that: Charter
parties executed by the captain in
the absence of the ship agent shall
be valid and effective, even though
in executing them he should have
acted in violation of the orders and
instructions of the ship agent or
shipowner; but the latter shall have
a right of action against the captain
for indemnification of damages.
Charter party is a lease contract
by which with the entire ship or
some principal part thereof is let by
the owner to another person for a
specified period of time or use.
2. Kinds; bareboat and contract of
affreightment
Kinds:
1. Bareboat or demise means
the whole vessel is lend to the
charterer which transfers to him
its
entire
command
and
possession and
consequent
control over its navigation,
including the master and crew
who are his servants. The
charterer is treated as owner
pro hac vice of the vessel. In
such case, a common carrier
becomes a private carrier.
*Charterer means the vessel
assumes all responsibilities of
navigation and provides his
own people.
*Shipowner is not liable to third
person; it is the charterer who
is liable to them.
General Rule: The charterer is
liable to the third person.
Exception: Shipowner may still
be held liable if the injury was
caused by unseaworthiness or
negligence of the shipowner
beyond before the demise or
bareboat took over.
2. Contract of affreightment
involves that use of shipping
space leased by the owner in
part or as a whole, to carry
goods for others.
*The shipowner retains the
possession,
command
and
navigation of the ship, the
charterer merely having use of
the space in the vessel in return
for his payment of the charter
hired.
*The shipowner is liable to third
person.
3. Persons qualified to make
charter
Q: Can the captain enter into a
charter contract?
A: YES provided that he is
authorized.
Q: Can the charterer enter into a
sub-charter contract?
A: YES provided it is not
prohibited. This is just like the rule
in lease.
4. Requisites of a valid charter
Article 652 of the Code of
Commerce states that: A charter
party must be drawn in duplicate
and signed by the contracting
parties, and when either does not
know how or is not able to do so,
by two witnesses at his request.
of
Charterer
If
the
vessel
is
chartered wholly, not
to accept cargo from
others
To observe represented
capacity
To
unload
cargo
clandestinely placed
To substitute another
vessel if load is less
than 3/5 of capacity
To leave the port if the
charterer
does
not
bring the cargo within
the lay days and extra
lay days allowed
To place in a vessel in a
condition to navigate;
to
bring
cargo
to
nearest neutral port in
case of war or blockade
To pay the
charter price
agreed
To pay freightage on
unboarded cargo
To pay losses to others
for
loading
uncontracted cargo or
illicit cargo
To wait if the vessel
needs repair
To pay expenses
deviation
for
F. Loans
on
Bottomry
and
Respondentia
1. Definition
Article 719 of the Code of
Commerce states that: A loan in
which
under
any
condition
whatever, the repayment of the
sum loaned and of the premium
stipulated depends upon the safe
arrival in port of the goods on
which it is made, or of the price
they may receive in case of
accident, shall be considered a loan
on bottomry or respondentia.
Bottomry is a loan secured by the
shipowner
or
ship
agent
guaranteed by the vessel itself and
payable only upon arrival of vessel
at destination.
*Captain may enter into bottomry
loan provided there is justification,
example of which is, for immediate
repairs.
Respondentia is a loan secured
by the owner of the cargo payable
upon safe arrival of cargo at
destination.
Barratry is an act of the captain or
crew for fraudulent purposes.
2. Distinguished from ordinary
loan
Ordinary Loan
With or without
collateral
Any
property
may be used as
collateral
Absolutely
payable
Obligation
to
Bottomry/Respondentia
Always with collateral
Property
is
vessel/cargo
limited
to
Conditionally payable
Loan is extinguished in the
*Knowing
these
zones
are
important for liability purposes.
1. First zone all time up to the
moment when risk of collision
begins
2. Second zone time between
moment when risk of collision
begins and moment it becomes
a practical certainty.
*It is in this period where
conduct of the vessels is
primordial. It is in this zone that
vessels must strictly observe
nautical
rules
unless
a
departure therefrom becomes
necessary to avoid imminent
danger.
3. Third zone time when collision
is certain and time of impact.
*An error in this zone would no
longer be legally consequential.
Doctrine of Error in Extremis is
a sudden movement made by a
faultless vessel during the third
zone of collision with another
vessel which is at fault during the
second zone. Even if such sudden
movement
is
wrong,
no
responsibility will fall on said
faultless vessel.
Doctrine of Last Clear Chance
provides
that
a
negligent
defendant is held liable to a
negligent plaintiff or even to a
plaintiff who has been grossly
negligent where he should have
been aware of it in the reasonable
exercise of due care, had in fact an
opportunity later than that of the
plaintiff to avoid an accident.
*In this doctrine, both parties are at
fault but only one party is liable.
Only the party who has the last
clear opportunity to avoid the
impact is held liable.
*This doctrine is inapplicable in the
following instances:
1. If the suit is between a parties of
contract of carriage; and
2. In case of collision of vessels
3. Rule on liability
Article 826 of the Code of
Commerce provides that: If a
vessel should collide with another,
through the fault, negligence, or
lack of skill of the captain, sailing
mate, or any other member of the
complement, the owner of the
vessel at fault shall indemnify the
Salvage
1. Definition
Salvage - Compensation allowed
to persons by whose voluntary
assistance a ship at sea or her
cargo or both have been saved in
whole or in part from an impending
or
actual
peril,
shipwrecks,
derelicts or recapture
- Services one person render to the
owner of a ship or goods, by his
own labor, preserving the goods or
the ship which the owner or those
entrusted with the care of them
have either abandoned in distress
at sea, or are unable to protect or
secure.
2. Rights
and
obligations
of
salvors and owners (Salvage
Law)
Salvors
Entitled
to
compensation
for
services rendered
Acquires a lien upon
the property salvaged
until he is compensated
Owners
He does not renounce
his right to the derelict
Has a right to the
delivery of the vessel or
things saved after the
salvage
is
accomplished, provided
he pays or gives a bond
Should make a claim
within 3 months after
the publication of a
salvage
report,
otherwise the thing
saved shall be sold
Entitled to the salvage
reward for the use of
the