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Southern Lines v.

CA In 1948, the City of Iloilo bought for rice from the National Rice and Corn Corporation (NARIC) in anila! NARIC "hipped 1,#$% "ac&" of rice con"igned to the City of Iloilo on board the '' ()eneral *right( belonging to the 'outhern +ine", Inc! ,ach "ac& of rice -eighed #. &ilo" and the entire "hipment a" indicated in the bill of lading had a total -eight of 1$9,4./ &ilo"! 0he City of Iloilo recei1ed the "hipment and paid the amount of 2%3,11.!./! 4o-e1er, it -a" noted that the foot of the bill of lading that the City of Iloilo 5Recei1ed the abo1e mentioned merchandi"e apparently in "ame condition a" -hen "hipped, "a1e a" noted belo-6 actually recei1ed 1,%8. "ac&" -ith a gro"" -eight of 11%,131 &ilo" upon actual -eighing! 0otal "hortage a"certained 13,319 &ilo"!( 0he "hortage -a" e7ui1alent to 41 "ac&" of rice -ith a net -eight of 13,319 &ilo", the proportionate 1alue of -hich -a" 2%,48%!3.! In 19.1, the City of Iloilo filed a complaint in the Court of 8ir"t In"tance of Iloilo again"t NARIC and the 'outhern +ine", Inc! for the reco1ery of the amount of 2%,48%!3. repre"enting the 1alue of the "hortage of the "hipment of rice! After trial, the lo-er court ab"ol1ed NARIC from the complaint, but "entenced the 'outhern +ine", Inc! to pay the amount of 24,931!41 -hich i" the difference bet-een the "um of 2%,48%!3. and 21,..4!94 repre"enting the latter5" counterclaim for handling and freight! 0he 'outhern +ine", Inc! appealed to the Court of Appeal" -hich affirmed the 9udgment of the trial court! 4ence, thi" petition for re1ie-! I""ue6 *:N the defendant;carrier, the herein petitioner, i" liable for the lo"" or "hortage of the rice "hipped! 4eld6 <e"! 2etitioner claim" e=emption from liability by contending that the "hortage in the "hipment of rice -a" due to "uch factor" a" the "hrin&age, lea&age or "pillage of the rice on account of the bad condition of the "ac&" at the time it recei1ed the "ame and the negligence of the agent" of re"pondent City of Iloilo in recei1ing the "hipment! 0he contention i" untenable, for, if the fact of improper pac&ing i" &no-n to the carrier or hi" "er1ant", or apparent upon ordinary ob"er1ation, but it accept" the good" not-ith"tanding "uch condition, it i" not relie1ed of liability for lo"" or in9ury re"ulting thereform! (9 Am >ur! 8%9!) 8urthermore, according to the Court of Appeal", (appellant (petitioner) it"elf fran&ly admitted that the "tring" that tied the bag" of rice -ere bro&en? "ome bag" -ere -ith hole" and plenty of rice -ere "pilled in"ide the hull of the boat, and that the per"onnel of the boat collected no le"" than $% "ac&" of rice -hich they had di"tributed among them"el1e"!( 0hi" finding, -hich i" binding upon thi" Court, "ho-" that the "hortage re"ulted from the negligence of petitioner! In1o&ing the pro1i"ion" of Article 3%% of the Code of Commerce and tho"e of the bill of lading, petitioner further contend" that re"pondent i" precluded from filing an action for damage" on account of it" failure to pre"ent a claim -ithin $4 hour" from receipt of the "hipment! It al"o cite" the ca"e" of Government v. Ynchausti & Co., $4 2hil! 31. and Triton Insurance Co. v. Jose , 33 2hil! 194, ruling to the effect that the re7uirement that the claim for damage" mu"t be made -ithin $4 hour" from deli1ery i" a condition precedent to the accrual of the right of action to reco1er damage"! 0he"e t-o ca"e" abo1e;cited are not applicable to the ca"e at bar! In the fir"t cited ca"e, the plaintiff ne1er pre"ented any claim at all before filing the action! In the "econd ca"e, there -a" payment of the tran"portation charge" -hich preclude" the pre"entation of any claim again"t the carrier! ('ee Article 3%%, Code of Commerce!) It i" "ignificant to note that in the American ca"e of Hoye v. Pennsylvania Railroad Co., 13 Ann! Ca"e! 414, it ha" been "aid6 ! !!! (It ha" been held that a "tipulation in the contract of "hipment re7uiring the o-ner of the good" to pre"ent a notice of hi" claim to the carrier -ithin a "pecified time after the good" ha1e arri1ed at their de"tination i" in the nature of a condition precedent to the o-ner5" right to enforce a reco1ery, that he mu"t "ho- in the fir"t in"tance that be ha" complied -ith the condition, or that the circum"tance" -ere "uch that to ha1e complied -ith it -ould ha1e re7uired him to do an unrea"onable thing! 0he -eight of authority, ho-e1er, "u"tain" the 1ie- that "uch a "tipulation i" more in the nature of a limitation upon the o-ner5" right to reco1ery, and that the burden of proof i" accordingly on the carrier to "ho- that the limitation -a" rea"onable and in proper form or -ithin the time "tated!( (4utchin"on on Carrier, 3d ed!, par! 44) ,mpha"i" "upplied! In the ca"e at bar, the record "ho-" that petitioner failed to plead thi" defen"e in it" an"-er to re"pondent5" complaint and, therefore, the "ame i" deemed -ai1ed ('ection 1/, Rule 9, Rule" of Court), and cannot be rai"ed for the fir"t time at the trial or on appeal! ( a=ilom 1! 0abotabo, 9 2hil! 39/!) oreo1er, a" the Court of Appeal" ha" "aid6 ! !!! the record" re1eal that the appellee (re"pondent) filed the pre"ent action, -ithin a rea"onable time after the "hort deli1ery in the "hipment of the rice -a" made! It "hould be recalled that the pre"ent action i" one for the refund of the amount paid in e=ce"", and not for damage" or the reco1ery of the "hortage? for admittedly the appellee (re"pondent) had paid the entire 1alue of the 1#$% "ac&" of rice, "ub9ect to "ub"e7uent ad9u"tment, a" to "hortage" or lo""e"! 0he bill of lading doe" not at all limit the time for filing an action for the refund of money paid in e=ce""!