Beruflich Dokumente
Kultur Dokumente
Transportation Law
Maria Zarah Villanueva - Castro
TRANSPORTATION LAW
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,
ice-refrigeration 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
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
diligence
:
As
to
regulatio
n:
is required
Stipulati
on
limiting
liability:
Parties may
not agree
on limiting
the
carriers
liability
except
when
provided
by law
Subject to
state
regulation
Exemptin
g
circumst
ance:
Prove
extraordina
ry diligence
and Article
1734 NCC
Presump There is a
tion
of presumptio
Negligen n of fault or
ce:
negligence
Governin
g law:
Law
on
common
carriers
is
required
Not
subject
to state
regulatio
n
Parties
may limit
the
carriers
liability,
provided
it is not
contrary
to
law,
morals or
good
customs
Caso
fortuito,
Article
1174
NCC
No
presumpt
ion
of
fault
or
negligen
ce
Law
on
obligatio
ns
and
contracts
3. Distinguished
from
towage,
arrastre and stevedoring
Distinctions:
Towage
Arrastre
Stevedo
ring
One
vessel is
hired
to
bring
another
vessel to
another
place;
refers to a
service
rendered
to
a
vessel by
towing for
the mere
purpose of
The
functions of
an arrastre
operator
has nothing
to do with
the
trade
and
business of
navigation,
nor to the
use
or
operation
of vessels.
He is no
different
The
function
of
stevedor
es
involves
the
loading
and
unloadin
g
of
coastwis
e vessels
calling at
the port.
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b. Carriage of goods:
1. Shipper
2. Carrier
D. Registered owner rule and Kabit
system
General Rule: Registered owner rule
is applicable in this jurisdiction.
Registered owner rule states that
the person who is the registered
owner of a vehicle is liable for any
damages caused by the negligent
operation of the vehicle although the
same was already sold or conveyed to
another person at the time of the
accident. The registered owner is
liable to the injured party subject to
his right of recourse against the
transferee or the buyer.
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.
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equipment
and
all
other
principal and accessory means
of
transportation
shall
be
especially bound in favour of
the shipper, although with
respect to railroads said liability
shall be subordinated to the
provisions of the laws of
concession with respect to the
property, and to what this Code
established as to the manner
and form of effecting seizures
and attachments against said
companies.
Article 373 of the Code of
Commerce states that: The
carrier who makes the delivery
of the merchandise to the
consignee
by
virtue
of
combined
agreements
or
services with other carriers shall
assume the obligations of those
who preceded him in the
conveyance, reserving his right
to proceed against the latter if
he was not the party directly
responsible for the fault which
gave rise to the claim of the
shipper or consignee. The
carrier who makes the delivery
shall likewise acquire all the
actins and rights of those who
preceded
him
in
the
conveyance. The shipper and
the consignee shall have an
immediate
right
of
action
against
the
carrier
who
executed the transportation
contract, or against the other
carriers who may have received
the goods transported without
reservation.
However,
the
reservation made by the latter
shall not relieve them from the
responsibilities which they may
have incurred by their own
acts.
Article 374 of the Code of
Commerce states that: The
consignees
to
whom
the
shipment was made may not
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3.
4.
5.
6.
2.
3.
4.
5.
of
the
contract
and
an
infringement of the right of the
shipper and subjects the carrier
to liability if the freight is lost
even by a cause otherwise
excepted
(Magellan
Manufacturing Corp. v. CA).
Article 359 of the Code of
Commerce provides that: If
there is an agreement between
the shipper and the carrier as to
the road over which the
conveyance is to be made, the
carrier may not change the
route, unless it be by reason of
force majeure; and should he do
so without this cause, he shall
be liable for all the losses which
the goods he transports may
suffer from any other cause,
beside paying the sum which
may have been stipulated for
such case. When on account of
said cause of force majeure, the
carrier had to take another
route
which
produced
an
increase
in
transportation
charges, he shall be reimbursed
for such increase upon formal
proof thereof.
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
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BREACH
OF
A. Causes
of
action
and
nature/extent of liability (culpa
contractual, culpa aquiliana
and culpa delictual)
Culpa contractual only the carrier
is primarily liable and not the
driver.
Reason: There is no privity
between the driver and the
passenger.
*The party to be impleaded is the
carrier itself.
Basis: Article 1759 of the New Civil
Code
Culpa
delictual/criminal
the
driver is primarily liable. The carrier
necessary
to
acquire
ownership
Q: Can the ship captain acquire
vessel by prescription?
A: NO. The character of
possession he has is not those
for acquisitive possession. The
requisite
for
acquisitive
possession is that possession as
an owner.
Article 575 of the Code of
Commerce states that: Coowners of vessels shall have the
right
of
repurchase
and
redemption in sales made to
strangers,
but
they
may
exercise the same only within
the 9 days following the
inscription of the sale in the
registry, and by depositing the
price at the same time.
b. By sale
Article 576 of the Code of
Commerce states that: In the
sale of a vessel it shall always
be understood as included the
rigging, masts, stores and
engine
of
a
steamer
appurtenant thereto, which at
the time belongs to the vendor.
The arms, munitions of war,
provisions and fuel shall not be
considered as included in the
sale. The vendor shall be under
the obligation to deliver to the
purchaser a certified copy of the
record sheet of the vessel in the
registry up to the date of sale.
Article 577 of the Code of
Commerce states that: If the
alienation of the vessel should
be made while it is on voyage,
the freightage which it earns
from the time it receives its last
cargo shall pertain entirely to
the purchaser, and the payment
of the crew and other persons
who make up its complement
for the same voyage shall be for
his account. If the sale is made
after the vessel has arrived at
the port of its destination, the
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greater
interest
shall
be
preferred; and should they have
equal interests, the matter shall
be decided by lot.
Article 594 of the Code of
Commerce states that: The
co-owners
shall
elect
the
manager who is to represent
them in the capacity of ship
agent. The appointment of
director or ship agent shall be
revocable at the will of the
members.
b. Rules in case of shipagents
Article 595 of the Code of
Commerce states that: The
ship agent, whether he is at the
same time the owner of the
vessel, or a manager for an
owner or for an association of
co-owners, must have the
capacity to trade and must be
recorded in the merchants
registry of the province. The
ship agent shall represent the
ownership of the vessel, and
may, in his own name and in
such capacity, take judicial and
extrajudicial steps in matters
relating to commerce.
Article 596 of the Code of
Commerce provides that: The
ship agent may discharge the
duties of captain of the vessel,
subject in every case to the
provision of Article 609. If two or
more co-owners apply for the
position
of
captain,
the
disagreement shall be decided
by a vote of the members; and
if the vote should result in a tie,
it shall be decided in favor of
the co-owner having the larger
interest in the vessel. If the
interests of the applicants
should be equal, and there
should be a tie, the matter shall
be decided by lot.
Article 597 of the Code of
Commerce states that: The
ship agent shall designate and
come to terms with the captain,
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To
observe
represented
capacity
To unload cargo
clandestinely
placed
To
pay
freightage
on
unboarded cargo
To pay losses to
others
for
loading
uncontracted
cargo or illicit
cargo
To
substitute To wait if the
another vessel if vessel
needs
load is less than repair
3/5 of capacity
To leave the port To pay expenses
if the charterer for deviation
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
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
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Bottomry/Respon
dentia
Always
with
collateral
Property is limited
to vessel/cargo
Conditionally
payable
Loan is extinguished
in the event that the
vessel/cargo
was
lost
Last lender is the
first priority
Need
to
be
writing
to
enforceable
in
be
2.
3.
4.
5.
6.
7.
8.
9.
4. Custody of Cargo
Article 823 of the Code of
Commerce provides that: The
custody and preservation of the
cargo which has been unloaded
shall be intrusted to the captain,
who shall be responsible for the
same, except in cases of force
majeure.
Article 824 of the Code of
Commerce states that: If the
entire cargo or part thereof should
appear to be damaged, or there
should be imminent danger of its
being damaged, the captain may
request of the competent judge or
court, or of the consul in a proper
case, the sale of all or of part of the
former, and the person taking
cognizance of the matter shall
authorize it, after an examination
and
declaration
of
experts,
advertisements,
and
other
formalities required by the case,
and an entry in the book, in
accordance with the provisions of
Article 624. The captain shall, in
proper case, justify the legality of
his conduct, under the penalty of
answering to the shipper for the
price the merchandise would have
brought if they had arrived in good
condition
at
the
port
of
destination.
5. Captains liability
Article 825 of the Code of
Commerce states that: The
captain shall be responsible for the
damages caused by his delay, if
after the cause of the arrival under
stress has ceased, he should not
continue the voyage. If the cause
of arrival should have been the fear
of enemies, privateers, or pirates, a
deliberation and resolution in a
meeting of the officers of the
vessel and persons interested in
the cargo who may be present, in
accordance with the provisions
contained in Article 819, shall
precede the departure.
6. Rules in case of shipwreck
43
Owners
He
does
not
renounce
his
right
to
the
derelict
Acquires a lien
upon
the
property
salvaged
until
he
is
compensated
To all intents
and
purposes,
he is a joint
owner and if the
property is lost
he must bear his
share
Acquires
the
right
of
possession
of
derelict
for
purposes of a
salvage claim
Entitled to half
of the deposit of
the derelict sold,
if after the lapse
of 3 years no
claim was made
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 his
vessel
in
rendering
salvage services
WARSAW CONVENTION:
Warsaw Convention is an agreement
among sovereign countries concerning the
regulation in a uniform manner of the
conditions of international transportation by
air in respect of the documents used for such
transportation and of the liability of the
carrier.
Signed on October 12, 1929 in
Warsaw, Poland.
Purpose: To protect the emerging air
transportation industry and to secure the
uniformity of recovery by the passengers.
Applicability: The transportation must be:
1. International transportation
2. Air transportation
3. Carriage of passengers, baggage or
goods
*The Warsaw Convention shall also apply to
fortuitous events affecting transportation by
aircraft performed by an air transportation
enterprise.
*The Convention is likewise applicable to air
transportation by legal entities constituted
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