G.R. No.

204866

January 21, 2015

RUKS KONSULT AND CONSTRUCTION, Petitioner,

vs.
ADWORLD SIGN AND ADVERTISING
CORPORATION* and TRANSWORLD MEDIA ADS,
INC., Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari are the
Decision dated November 16, 2011 and the
Resolution dated December 10, 2012 of the Court of
Appeals (CA) in CA-G.R. CV No. 94693 which affirmed the
Decision dated August 25, 2009 of the Regional Trial Court
of Makati City, Branch 142 (RTC) in Civil Case No. 03-1452
holding, inter alia, petitioner Ruks Konsult and Construction
(Ruks) and respondent Transworld Media Ads, Inc.
(Transworld) jointly and severally liable to respondent
Adworld Sign and Advertising Corporation (Adworld) for
damages.
1

Barangka Mandaluyong, which was misaligned and its

foundation impaired when, on August 11, 2003, the adjacent
billboard structure owned by Transworld and used by
Comark collapsed and crashed against it. Resultantly, on
August 19, 2003, Adworld sent Transworld and Comark a
letter demanding payment for the repairs of its billboard as
well asloss of rental income. On August 29, 2003,
Transworld sent its reply, admitting the damage caused by
its billboard structure on Adworlds billboard, but
nevertheless, refused and failed to pay the amounts
demanded by Adworld. As Adworlds final demand letter
also went unheeded, it was constrained to file the instant
complaint, praying for damages in the aggregate amount
of P474,204.00, comprised of P281,204.00 for
materials,P72,000.00 for labor, and P121,000.00 for
indemnity for loss of income.
6

The Facts

In its Answer with Counterclaim, Transworld averred that

the collapse of its billboard structure was due to
extraordinarily strong winds that occurred instantly and
unexpectedly, and maintained that the damage caused to
Adworlds billboard structure was hardly noticeable.
Transworld likewise filed a Third-Party Complaint against
Ruks, the company which built the collapsed billboard
structure in the formers favor. It was alleged therein that
the structure constructed by Ruks had a weak and poor
foundation not suited for billboards, thus, prone to collapse,
and as such, Ruks should ultimately be held liable for the
damages caused to Adworlds billboard structure.
1wphi1

The instant case arose from a complaint for damages filed

by Adworld against Transworld and Comark International
Corporation (Comark) before the RTC. In the complaint,
Adworld alleged that it is the owner of a 75 ft. x 60 ft.
billboard structure located at EDSA Tulay, Guadalupe,
5

For its part, Comark denied liability for the damages caused
to Adworlds billboard structure, maintaining that it does not
have any interest on Transworlds collapsed billboard
structure as it only contracted the use of the same. In this
relation, Comark prayed for exemplary damages from
Transworld for unreasonably includingit as a partydefendant in the complaint.
8

Lastly, Ruks admitted that it entered into a contract with

Transworld for the construction of the latters billboard
structure, but denied liability for the damages caused by its
collapse. It contended that when Transworld hired its
services, there was already an existing foundation for the
billboard and that it merely finished the structure according
to the terms and conditions of its contract with the latter.
9

was made aware by Ruks that the initial construction of the

lower structure of its billboard did not have the proper
foundation and would require additional columns and
pedestals to support the structure. Notwithstanding,
however, Ruks proceeded with the construction of the
billboards upper structure and merely assumed that
Transworld would reinforce its lower structure. The RTC
then concluded that these negligent acts were the direct
and proximate cause of the damages suffered by Adworlds
billboard.
13

14

Aggrieved, both Transworld and Ruks appealed to the CA.

In a Resolution dated February 3, 2011, the CA dismissed
Transworlds appeal for its failure to file an appellants brief
on time. Transworld elevated its case before the Court,
docketed as G.R. No. 197601. However, in a
Resolution dated November 23, 2011, the Court declared
the case closed and terminated for failure of Transworld to
file the intended petition for review on certiorariwithin the
extended reglementary period. Subsequently, the Court
issued an Entry of Judgment dated February 22, 2012 in
G.R. No. 197601 declaring the Courts November 23, 2011
Resolution final and executory.
15

16

The RTC Ruling

In a Decision dated August 25, 2009, the RTC ultimately
ruled in Adworlds favor, and accordingly, declared, inter
alia, Transworld and Ruks jointly and severally liable to
Adworld in the amount of P474,204.00 as actual damages,
with legal interest from the date of the filing of the complaint
until full payment thereof, plus attorneys fees in the amount
ofP50,000.00. The RTC found both Transworld and Ruks
negligent in the construction of the collapsed billboard as
they knew that the foundation supporting the same was
weak and would pose danger to the safety of the motorists
and the other adjacent properties, such as Adworlds
billboard, and yet, they did not do anything to remedy the
situation. In particular, the RTC explained that Transworld
10

17

18

The CA Ruling

11

12

In a Decision dated November 16, 2011, the CA denied

Rukss appeal and affirmed the ruling of the RTC. It
adhered to the RTCs finding of negligence on the part of
Transworld and Ruks which brought about the damage to
Adworlds billboard. It found that Transworld failed to ensure
19

that Ruks will comply with the approved plans and

specifications of the structure, and that Ruks continued to
install and finish the billboard structure despite the
knowledge that there were no adequate columns to support
the same.
20

Dissatisfied, Ruks moved for reconsideration, which was,

however, denied in a Resolution dated December 10,
2012,hence, this petition.

supported by the evidence on record. Absent any

exceptions to this rule such as when it is established that
the trial court ignored, overlooked, misconstrued, or
misinterpreted cogent facts and circumstances that, if
considered, would change the outcome of the case such
findings must stand.
25

26

21

22

On the other hand, Transworld filed another appeal before

the Court, docketed as G.R. No. 205120. However, the
Court denied outright Transworlds petition in a
Resolution dated April 15, 2013, holding that the same was
already bound by the dismissal of its petition filed in G.R.
No. 197601.
23

After a judicious perusal of the records, the Court sees no

cogent reason to deviate from the findings of the RTC and
the CA and their uniform conclusion that both Transworld
and Ruks committed acts resulting in the collapse of the
formers billboard, which in turn, caused damage to the
adjacent billboard of Adworld.

24

The Issue Before the Court

Jurisprudence defines negligence as the omission to do

something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a
prudent and reasonable man would not do. It is the failure
to observe for the protection of the interest of another
person that degree of care, precaution, and vigilance which
the circumstances justly demand, whereby such other
person suffers injury.
27

The primordial issue for the Courts resolution is whether or

not the CA correctly affirmed the ruling of the RTC declaring
Ruks jointly and severally liable with Transworld for
damages sustained by Adworld.
The Courts Ruling
The petition is without merit.
At the outset, it must be stressed that factual findings of the
RTC, when affirmed by the CA, are entitled to great weight
by the Court and are deemed final and conclusive when

28

In this case, the CA correctly affirmed the RTCs finding that

Transworlds initial construction of its billboards lower
structure without the proper foundation, and that of Rukss
finishing its upper structure and just merely assuming that
Transworld would reinforce the weak foundation are the two
(2) successive acts which were the direct and proximate
cause of the damages sustained by Adworld. Worse, both

Transworld and Ruks were fully aware that the foundation

for the formers billboard was weak; yet, neither of them
took any positive step to reinforce the same. They merely
relied on each others word that repairs would be done to
such foundation, but none was done at all. Clearly, the
foregoing circumstances show that both Transworld and
Ruks are guilty of negligence in the construction of the
formers billboard, and perforce, should be held liable for its
collapse and the resulting damage to Adworlds billboard
structure. As joint tortfeasors, therefore, they are solidarily
liable to Adworld. Verily, "[j]oint tortfeasors are those who
command, instigate, promote, encourage, advise,
countenance, cooperate in, aid or abet the commission of a
tort, or approve of it after it is done, if done for their benefit.
They are also referred to as those who act together in
committing wrong or whose acts, if independent of each
other, unite in causing a single injury. Under Article 2194 of
the Civil Code, joint tortfeasors are solidarily liable for the
resulting damage. In other words, joint tortfeasors are each
liable as principals, to the same extent and in the same
manner as if they had performed the wrongful act
themselves." The Courts pronouncement in People v.
Velasco is instructive on this matter, to wit:
29

30

31

32

Where several causes producing an injury are concurrent

and each is an efficient cause without which the injury
would not have happened, the injury may be attributed to all
or any of the causes and recovery may be had against any
or all of the responsible persons although under the
circumstances of the case, it may appear that one of them
was more culpable, and that the duty owed by them to the

injured person was not same. No actor's negligence ceases

to be a proximate cause merely because it does not exceed
the negligence of other actors. Each wrongdoer is
responsible for the entire result and is liable as though his
acts were the sole cause of the injury.
There is no contribution between joint [tortfeasors] whose
liability is solidary since both of them are liable for the total
damage. Where the concurrent or successive negligent
acts or omissions of two or more persons, although acting
independently, are in combination the direct and proximate
cause of a single injury to a third person, it is impossible to
determine in what proportion each contributed to the injury
and either of them is responsible for the whole injury. x x x.
(Emphases and underscoring supplied)
1wphi1

In conclusion, the CA correctly affirmed the ruling of the

RTC declaring Ruks jointly and severally liable with
Transworld for damages sustained by Adworld.
WHEREFORE, the petition is DENIED. The Decision dated
November 16, 2011 and the Resolution dated December
10, 2012 of the Court of Appeals in CA-G.R. CV No. 94693
are hereby AFFIRMED.
THIRD DIVISION
G.R. No. 195661, March 11, 2015
UNKNOWN OWNER OF THE VESSEL M/V CHINA
JOY, SAMSUN SHIPPING LTD., AND INTER-ASIA

MARINE TRANSPORT, INC., Petitioners, v. ASIAN

TERMINALS, INC., Respondent.
RESOLUTION
REYES, J.:
The instant petition for review on certiorari1 assails the
Decision2 dated November 10, 2010 and
Resolution3 dated February 14, 2011 of the Court of
Appeals (CA) in CA-G.R. CV No. 93164. The CA reversed
and set aside the Decision4 dated January 30, 2009 of
the Regional Trial Court (RTC) of Manila, Branch 51, in
Civil Case No. 99-93067, which dismissed for
insufficiency of evidence the complaint for damages 5 filed
by herein respondent Asian Terminals, Inc. (ATI) against
Unknown Owner of the Vessel M/V China Joy
(shipowner),6 Samsun Shipping Ltd. (Samsun) and InterAsia Marine Transport, Inc. (Inter-Asia) (petitioners).
The CA aptly summed up the facts of the case as
follows:
On 25 January 1997, the cargo ship M/V China Joy
(the Vessel) arrived at the Mariveles Grain Terminal
Wharf, operated by plaintiff [ATI].
According to the Berth Term Grain Bills of Lading, the
Vessel carried soybean meal that had been shipped by
ContiQuincyBunge L.L.C[.] (ContiQuincyBunge), an
exporter of soybean meal and related products, in favor
of several consignees in the Philippines.
Under the Charter Party Agreement over M/V China Joy,
ContiQuincyBunge represented itself as the Charterer of
the Vessel, with San Miguel Foods, Inc. as Co-Charterer,
and defendant [Samsun] represented itself as the Agent

of the Shipowners. Samsun is a foreign corporation not

doing business in the Philippines.
On 3 February 1997[,] ATI used its Siwertell Unloader
No. 2 to unload the soybean meal from the Vessels Hold
No. 2. The Siwertell Unloader is a pneumatic vacubator
that uses compressed gas to vertically move heavy bulk
grain from within the hatch of the ship in order to unload
it off the ship.
The unloading operations were suddenly halted when the
head of Unloader No. 2 hit a flat low-carbon or mild
steel bar measuring around 8 to 10 inches in length, 4
inches in width, and 1 inch in thickness that was in the
middle of the mass of soybean meal. The flat steel bar
lodged itself between the vertical screws of Unloader No.
2, causing portions of screw numbers 2 and 3 to crack
and be sheared off under the torsional load.
According to the quotation of BMH Marine AB Sweden,
the sole manufacturer of Siwertell unloaders, the
replacement cost of each screw is US$12,395.00 or
US$24,790.00 for the 2 screws plus freight. The labor
cost to remove and re-assemble the screws is estimated
at US$2,000.00.
On 4 February 1997, ATI sent a Note of Protest to the
Master of the Vessel for the damages sustained by its
unloading equipment as a result of encountering the flat
steel bar among the soybean meal. However, the Vessels
Master wrote a note on theProtest stating that it is not
responsible for the damage because the metal piece
came from the cargo and not from the vessel itself.
On 5 March 1997, ATI sent a claim to defendant [InterAsia] for the amount of US$37,185.00 plus US$2,000.00

labor cost representing the damages sustained by its

unloading equipment.
Inter-Asia rejected ATIs claim for the alleged reason that
it is not the Shipowners Agent. Inter-Asia informed ATI
that its principal is Samsun. Moreover, according to InterAsia, the owner of the Vessel is Trans-Pacific Shipping
Co., c/o Lasco Shipping Company. Inter-Asia, however,
offered to relay ATIs claim to Trans-Pacific through
Samsun.
As previously noted, the Charter Party Agreement states
Samsun to be the Agent of the Shipowners, but since
Samsun is a foreign corporation not licensed to do
business in the Philippines, it transacted its business
through Inter-Asia. Hence, Inter-Asia is the Agent of the
Agent of the Shipowners.
When negotiations for settlement failed, ATI filed the
instant Complaint for Damages against Samsun, InterAsia and the Unknown Owner of the Vessel M/V China
Joy on 9 March 1999.

Defendants argued that since the metal foreign object

was found in the middle of the cargo, it could not have
come from the bottom of the hatch because the hatch
had been inspected and found clean prior to loading.
Defendants further averred that neither could the metal
bar have been part of the Vessel that had broken off and
fallen into the hatch because tests conducted on the
metal piece revealed that said metal bar was not part of
the Vessel.
Defendants concluded that the metal bar could only have
been already co-mingled with the soybean meal upon
loading by ContiQuincyBunge at loadport, and, therefore,
defendants are not liable for the damages sustained by
the unloader of ATI.7 (Citations omitted)
Rulings of the RTC and CA
On January 30, 2009, the RTC rendered a
Decision8 dismissing ATIs complaint for insufficiency of
evidence. The RTC explained that while the damage to
ATIs Siwertell Unloader No. 2 was proven, [t]he Court
is at a quandary as to who caused the piece of metal to
[co-mingle] with the shipment.9
chanroblesvirtuallawlibrary

In the joint Answer, Inter-Asia reiterated that it is not the

Agent of the Shipowners. Defendants further averred
that the soybean meal was shipped on board the M/V
China Joy under a Free-In-and-Out-Stowed-andTrimmed (FIOST) Clause, which supposedly means that
the Shipper/Charterer itself (ContiQuincyBunge LLC)
loaded the cargo on board the Vessel, and the latter and
her complement had no participation therein except to
provide the use of the Vessels gear. Similarly, under the
FIOST clause, the discharge of the cargo was to be done
by the consignees designated personnel without any
participation of the Vessel and her complement.

ATI thereafter filed an appeal,10 which the CA granted

through the herein assailed decision, the dispositive
portion of which partially states:
WHEREFORE, the appeal is GRANTED, x x x.
Defendants-appellees are found jointly and severally
liable to [ATI] for the amount of US$30,300.00 with
interest thereon at 6% per annum from the filing of
the Complaint on 9 March 1999 until the judgment
becomes final and executory. Thereafter, an interest rate
of 12% per annum shall be imposed until the amount is
fully and actually paid.
chanRoble svirtualLawlibrary

SO ORDERED.11
The CA explained its ruling, viz:
As a rule of evidence, the doctrine of res ipsa loquitur is
peculiar to the law of negligence which recognizes
that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof
of negligence.
chanRoblesvirtualLa wlibrary

xxxx
We find the application of the doctrine of res ipsa
loquitur to be appropriate in the case at bar.
First. Since the cargo to be unloaded was free-flowing
soybean meal in bulk, ATI correctly used a pneumatic
vacubator unloader to extract the soybean meal from the
holds. Under normal unloading procedures of bulk grain,
it is not expected that a metal foreign object would be
among the grain to be unloaded. x x x.
Such an accident does not occur in the ordinary course of
things, unless the loading of the soybean meal at
loadport was mismanaged in some way that allowed a
metal foreign object to be co-mingled with the soybean
meal cargo.
Second. The damage to the vertical screws of ATIs
unloader was caused by the presence of the metal bar
among the soybean meal in Hold No. 2 of the ship: an
instrumentality within the exclusive control of the
shipowner.
x x x According to defendants, the vessel and her
complement had no participation in the loading and
discharge of said bulk cargo except to provide use of the

vessels gear.
Defendants argument is neither accurate nor
meritorious. In the first place, the terms of the Charter
Party in this case was not Free-In-and-Out-Stowedand-Trimmed[FIOST] but Free-In-and-SpoutTrimmed-and-Free-Out [FISTFO].
xxxx
x x x [I]t appears that the FIOST clause in a Charter
Party Agreement speaks of who is to bear
the cost or expense of loading, spout trimming and
unloading the cargo. Free In and Out means that the
shipowner is free from such expenses. This becomes
clearer when the FIOST clause is stipulated as an adjunct
to the terms of payment of the freight rate.
xxxx
Being a provision for the apportionment of expense (as
an exclusion from the rate of freight to be paid), the
interpretation of the FIOST clause should not be
extended to mean an apportionment of liability, unless
specified in clear and unambiguous terms.
While there are instances where a Charter Party
Agreement clearly states that the Charterer will be liable
to third parties for damages caused by its cargo (as in
the case of spills of petroleum oil cargo, or of damage to
third parties caused by toxic cargo),there is no such
provision in this case. Therefore, liability or non-liability
for such damage cannot be presumed from the FIOST
clause alone, and the Charter Party Agreement must be
closely scrutinized for the parties intention on liability.

Clause 22 of the Charter Party Agreement states:

At loadport, the stevedores[,] although arranged by
charterers, shippers, or their agents[, are] to be under
the direction and control of the Master. All claims for
damage allegedly caused by stevedores [are] to be
settled between stevedores and Owners. Charterers shall
render assistance to Owners to settle such damage in
case of need.
x x x Clause 22 clearly states that loading shall be
done under the direction and control of the Master.
Hence, if the metal bar that damaged ATIs unloader was
inadvertently mixed into the soybean meal during
loading, by express provision of theCharter Party
Agreement, the cost of the damage should be borne by
the shipowner because the loading was done under the
supervision and control of the Master of the Vessel.
chanRoble svirtualLawlibrary

Hence, not only did defendants

have presumed exclusive control of the Vessel during
the loading of the soybean meal by reason of them being
the owners or agents of the owners thereof, they also
had actual exclusive control thereof by express
stipulation in the Charter Party Agreement that the
loading of the cargo shall be under the direction and
control of the Master of the Vessel.
This is as it should be, considering that the charter in this
case is a contract ofaffreightment by which the owner
of a ship lets the whole or part of her to a merchant or
other person for the conveyance of goods, on a particular
voyage, in consideration of the payment of freight. The
Supreme Court has held that if the charter is a contract
of affreightment, the rights and the responsibilities
of ownership rest on the owner. The charterer is free
from liability to third persons in respect of the ship.

Third. There is neither allegation nor evidence in the

record that ATIs negligence contributed to the damage of
its unloader.
All 3 requisites of res ipsa loquitur being present, the
presumption or inference arises that defendants
negligence was the proximate cause of the damage to
ATIs unloader. The burden of evidence shifted to
defendants to prove otherwise. Th[e] defendants failed to
do so.
xxxx
Defendants testimonial evidence consisted of the sole
testimony of the former Operations Manager of InterAsia, who x x x on cross-examination, x x x admitted
that he was not present at the loading of the cargo and,
therefore, did not actually see that the soybean meal was
free of any foreign metal object.
Defendants evidence, which heavily relies on (1) their
erroneous interpretation of the FIOST clause in
the Charter Party Agreement; (2) the Masters
unsupported allegation written on the Note of
Protest that the metal bar did not come from the vessel;
and (3) their witness dubious interpretation that the
notation loaded clean on the Berth Term[ ]Grain Bills of
Lading means that the soybean meal had no foreign
material included therein, does not present a satisfactory
answer to the question: How did the metal bar get
co-mingled with the soybean meal, and what did
the Master of the Vessel do to prevent such an
occurrence? x x x.
By their failure to explain the circumstances that

attended the accident, when knowledge of such

circumstances is accessible only to them, defendants
failed to overcome the prima facie presumption that the
accident arose from or was caused by their negligence or
want of care.
The res ipsa loquitur doctrine is based in part upon the
theory that the defendant in charge of the
instrumentality which causes the injury either knows
the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff
has no such knowledge, and therefore is compelled to
allege negligence in general terms and to rely upon the
proof of the happening of the accident in order to
establish negligence. x x x.
xxxx

vessel; but he may exempt himself therefrom by

abandoning the vessel with all her equipment and the
freight it may have earned during the voyage.
Art. 590. The co-owners of the vessel shall be civilly
liable in the proportion of their interests in the
common fund for the results of the acts of the
captain referred to in Art. 587.12 (Citations omitted,
italics and emphasis in the original, and underscoring
ours)
Anent the amount of the herein petitioners solidary
liability, the CA found that only US$30,300.00 of ATIs
claim is supported by evidence. The quotation submitted
by the manufacturer of Siwertell unloaders indicated that
(a) the replacement cost for the two damaged screws is
US$24,790.00, (b) freight cost is US$3,510.00, and (c)
labor cost in removing and re-assembling the screws is
US$2,000.00.13
chanroble svirtuallawlibrary

The prima facie evidence of defendants negligence,

being unexplained and uncontroverted, is sufficient to
maintain the proposition affirmed. Hence, the negligence
of the Master of the Vessel is conclusively presumed to
be the proximate cause of the damage sustained by ATIs
unloader. Moreover, since the Masters liability is
ultimately that of the shipowner because he is the
representative of the shipowner, the shipowner and its
agents are solidarily liable to pay ATI the amount of
damages actually proved.
Articles 587 and 590 under Book III of the Code of
Commerce provide for the liability of the shipowner and
its agents for acts of the Master or Captain, as follows:
Art. 587. The ship agent shall also be civilly liable
for the indemnities in favor of third persons which
may arise from the conduct of the captain in the
care of the goods which he loaded on the

chanRoble svirtualLawlibrary

The CA, however, found no grounds to award attorneys

fees in ATIs favor lest it be tantamount to imposing a
premium on ones right to litigate.14
chanroble svirtuallawlibrary

The herein petitioners filed a motion for reconsideration

before the CA, which denied the same through the
Resolution issued on February 14, 2011.
Issues
The instant petition raises the questions of whether or
not the CA erred in (a) applying the doctrine ofres ipsa
loquitur, and (b) rejecting the argument that the
petitioners had no participation in the loading and
discharge of the bulk cargo except to provide use of the
vessels gear.15
chanroblesvirtuallawlibrary

In support thereof, the petitioners emphasize that the

foreign metal object was found in the middle of the
cargo. Hence, it is logical to conclude that the metal
came in with the cargo and could not have fallen off from
some appurtenance of the vessel before or after
loading.16 The petitioners likewise claim that because of
the Free-In-and-Out Clause under which the cargo was
carried, the charterer chose who were to effect the
loading, unloading and discharge of the goods, which
tasks were performed without the participation of the
vessel and its complement.17 Besides, notwithstanding
Clause 22 of the Charter Party Agreement, the Master of
the Vessels control is figurative and pertains merely to
the maintenance of the vessels seaworthiness, and not
to acts of covert negligence which could have been
committed without even the charterers own
knowledge.18 Further, while it is true that in a contract of
affreightment, the charterer is free from liability to third
persons in respect of the ship, in the instant petition, the
offending factor which caused the damage was not the
vessel, but the cargo itself, thus, the liability should
instead rest upon the cargo owner, who was not even
impleaded as a party to the case.19 The doctrine of res
ipsa loquitur hence finds application herein but in support
of the petitioners lack of culpability since they possessed
neither the knowledge nor the opportunity of ascertaining
the presence of the foreign metal object lodged in the
middle of the soybean meal cargo.20
chanroble svirtuallawlibrary

In its Comment,21 ATI contends that the law does not

distinguish between covert and evident negligence in
determining whether the doctrine of res ipsa
loquitur applies.22 An unusual event occurred because
proper care was not observed. The event took place in
Hold No. 2 of M/V China Joy, which was within the
shipowners exclusive control. There is likewise no

evidence of ATIs negligence, which could have

contributed to the damage of its own unloader. Besides,
ATI did not witness the loading of the soybean meal
cargo into M/V China Joy at the Port of New Orleans,
United States of America. Hence, ATI cannot furnish
direct evidence on whether or not the hold or hatch
containing the cargo was inspected and found clean prior
to loading, and sealed thereafter.
ATI also asserts that the petitioners presented no
evidence conclusively proving that the foreign metal
object was indeed in the middle and not at the top or
bottom of the soybean meal cargo. Moreover, the
petitioners only witness, Alejandro Gilhang, the former
Operations Manager of Inter-Asia, admitted that he was
not present during the loading, thus, he could not have
seen if the cargo was free of any foreign metal
object.23
chanroblesvirtuallawlibrary

ATI likewise points out that the petitioners have not

explicitly quoted in verbatim any provision in the Charter
Party Agreement, which the latter invoke to vaguely
argue that the loading of the cargo pertains exclusively
to the charterer. Therefore, the petitioners have nary a
legal basis for their assertion that the shipowner has no
liability insofar as the loading operations are concerned.
Besides, even if such provision in fact exists, ATI is not
privy to the Charter Party Agreement.24
chanroble svirtuallawlibrary

Ruling of the Court

The Court agrees with the CA that the petitioners are
liable to ATI for the damage sustained by the latters
unloader. However, the Court finds the petitioners
liability to be based on quasi-delict and not on a contract
of carriage. The Court likewise deems it proper to modify

the rate of interests on the amount of damages imposed

by the CA upon the petitioners.

negligence had in any way contributed to the damage

caused to its unloader.

The Court notes that the shipowner and shipowners

agent, Samsun, are all juridical entities not registered
and not doing business in the Philippines. It was the
charterers agent, Inter-Asia, a duly-registered domestic
corporation, which had filed the instant petition for itself
and on behalf of the shipowner and Samsun.25 In the
course of the proceedings too, none of the parties had
raised issues anent the validity of the service of
summons and the courts acquisition of jurisdiction over
the persons of the petitioners.

The Court agrees with the CA anent ATIs entitlement to

the payment of damages from the petitioners and the
applicability of the doctrine of res ipsa loquitur. However,
the Court finds as misplaced the CAs application of the
laws on maritime commerce and contracts of carriage for
reasons discussed below.

The petitioners present two issues for the Courts

resolution, to wit: (a) the applicability of the doctrine
of res ipsa loquitur in the case at bar; and (b) who
participated and should thus assume liability for the
loading of the soybean meal cargo.
In its Decision dated January 30, 2009, the RTC declared
that while ATI indeed sustained damages to its unloader,
liability therefor cannot, however, be established with
certainty.
In the assailed decision, the CA, on the other hand,
discussed in detail why and how the three requisites to
the application of the doctrine of res ipsa loquitur are
found to be attendant in the case at bar. First, the comingling of the two foreign metal objects with the
soybean meal cargo and the consequent damage to ATIs
unloader is an accident which ordinarily does not occur in
the absence of someones negligence. Second, the
foreign metal objects were found in the vessels Hold No.
2, which is within the exclusive control of the
petitioners. Third, records do not show that ATIs

There is no contract of carriage between the

petitioners and ATI.
There is no contract of carriage between ATI, on one
hand, and the shipowner, Samsun, ContiQuincyBunge
L.L.C., and Inter-Asia, on the other. It likewise bears
stressing that the subject of the complaint, from which
the instant petition arose, is not the damage caused to
the cargo, but to the equipment of an arrastre operator.
Further, ATIs contractual relation is not with the
petitioners, but with the consignee and with the
Philippine Ports Authority (PPA).
In Delgado Brothers, Inc. v. Home Insurance Company
and Court of Appeals,26 the Court discusses the functions
of an arrastre operator, viz:
Under this provision, petitioners functions as arrastre
operator are (1) to receive, handle, care for, and deliver
all merchandise imported and exported, upon or passing
over Government-owned wharves and piers in the Port of
Manila, (2) as well as to record or cheek all merchandise
which may be delivered to said port at shipside, and in
general[,] (3) to furnish light and water services and
other incidental services in order to undertake its
arrastre service. Note that there is nothing in those
functions which relate to the trade and business of
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navigation x x x, nor to the use or operation of vessels x

x x. Both as to the nature of the functions and the place
of their performance (upon wharves and piers
shipside), petitioners services are clearly not
maritime. As we held in the Macondray case, they are
no different from those of a depositary or
warehouseman. Granting, arguendo, that petitioners
arrastre service depends on, assists, or furthers maritime
transportation x x x, it may be deemed
merely incidental to its aforementioned functions as
arrastre operator and does not, thereby, make
petitioners arrastre service maritime in
character.27(Citations omitted, italics in the original,
emphasis and underscoring ours)
The functions of an arrastre operator involve the
handling of cargo deposited on the wharf or between the
establishment of the consignee or shipper and the ships
tackle. Being the custodian of the goods discharged from
a vessel, an arrastre operators duty is to take good care
of the goods and to turn them over to the party entitled
to their possession.28
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The legal relationship between an arrastre operator and

a consignee is akin to that between a warehouseman and
a depositor. As to both the nature of the functions and
the place of their performance, an arrastre operators
services are clearly not maritime in character.29
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In Insurance Company of North America v. Asian

Terminals, Inc.,30 the Court explained that the liabilities
of the arrastre operator for losses and damages are set
forth in the contract for cargo handling services it had
executed with the PPA. Corollarily then, the rights of an
arrastre operator to be paid for damages it sustains from
handling cargoes do not likewise spring from contracts of
carriage.

However, in the instant petition, the contending parties

make no references at all to any provisions in the
contract for cargo handling services ATI had executed
with the PPA.
Article 2176 of the New Civil Code and the doctrine
of res ipsa loquitur apply.
Notwithstanding the above, the petitioners cannot evade
liability for the damage caused to ATIs unloader in view
of Article 2176 of the New Civil Code, which pertinently
provides as follows:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties,
is called a quasi-delict and is governed by the provisions
of this Chapter.
In Taylor v. Manila Electric Railroad and Light Co.,31 the
Court explained that to establish a plaintiffs right to
recovery for quasi-delicts, three elements must exist, to
wit: (a) damages to the plaintiff; (b) negligence by act or
omission of which defendant personally, or some person
for whose acts it must respond, was guilty; and (c) the
connection of cause and effect between the negligence
and the damage.32
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Negligence, on the other hand, is defined as the failure to

observe that degree of care, precaution and vigilance
that the circumstances justly demand, whereby another
suffers injury.33
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In the case under consideration, the parties do not

dispute the facts of damage upon ATIs unloader, and of
such damage being the consequence of someones

negligence. However, the petitioners deny liability

claiming that it was not established with reasonable
certainty whose negligence had caused the co-mingling
of the metal bars with the soybean meal cargo. The
Court, on this matter, agrees with the CAs disquisition
that the petitioners should be held jointly and severally
liable to ATI. ATI cannot be faulted for its lack of direct
access to evidence determinative as to who among the
shipowner, Samsun, ContiQuincyBunge and Inter-Asia
should assume liability. The CA had exhaustively
discussed why the doctrine of res ipsa loquitur applies.
The metal bars which caused damage to ATIs unloader
was found co-mingled with the cargo inside Hold No. 2 of
the ship, which was then within the exclusive control of
the petitioners. Thus, the presumption that it was the
petitioners collective negligence, which caused the
damage, stands. This is, however, without prejudice to
the petitioners rights to seek reimbursements among
themselves from the party whose negligence primarily
caused the damage.
A modification of the interests imposed on the
damages awarded is in order.
Anent the interests imposed by the CA upon the
damages to be paid to ATI, modification of the same is in
order.
In Nacar v. Gallery Frames,34 the Court declared:
To recapitulate and for future guidance, the
guidelines laid down in the case of Eastern
Shipping Lines are accordingly modified to embody
BSP-MB Circular No. 799, as follows:
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I. When an obligation, regardless of its source, i.e., law,

contracts, quasi-contracts, delicts or quasi-delicts is

breached, the contravenor can be held liable for

damages. The provisions under Title XVIII on Damages
of the Civil Code govern in determining the measure of
recoverable damages.
II. With regard particularly to an award of interest in the
concept of actual and compensatory damages, the rate of
interest, as well as the accrual thereof, is imposed, as
follows:
1. When the obligation is breached, and it consists in
the payment of a sum of money, i.e., a loan or
forbearance of money, the interest due should be
that which may have been stipulated in writing.
Furthermore, the interest due shall itself earn
legal interest from the time it is judicially
demanded. In the absence of stipulation, the rate
of interest shall be 6% per annum to be computed
from default, i.e., from judicial or extrajudicial
demand under and subject to the provisions of
Article 1169 of the Civil Code.

2. When an obligation, not constituting a loan or

forbearance of money, is breached, an interest on
the amount of damages awarded may be imposed
at the discretion of the court at the rate of 6% per
annum. No interest, however, shall be adjudged
on unliquidated claims or damages, except when
or until the demand can be established with
reasonable certainty. Accordingly, where the
demand is established with reasonable certainty,
the interest shall begin to run from the time the
claim is made judicially or extrajudicially (Art.
1169, Civil Code), but when such certainty cannot
be so reasonably established at the time the

demand is made, the interest shall begin to run

only from the date the judgment of the court is
made (at which time the quantification of
damages may be deemed to have been reasonably
ascertained). The actual base for the computation
of legal interest shall, in any case, be on the
amount finally adjudged.

US$30,300.00, plus legal interest at the rate of six

percent (6%) per annum reckoned from the finality of
this Resolution until full satisfaction thereof.
SO ORDERED.

G.R. No. 174161, February 18, 2015

3. When the judgment of the court awarding a sum

of money becomes final and executory, the rate of
legal interest, whether the case falls under
paragraph 1 or paragraph 2, above, shall be
6% per annum from such finality until its
satisfaction, this interim period being deemed to
be by then an equivalent to a forbearance of
credit.
x x x x.35 (Citation omitted, emphasis and italics in the
original, and underscoring ours)
The Court agrees with the CA that as regards ATIs claim,
only the amount of US$30,300.00 is duly supported by
evidence. However, in view of Nacar, the said amount
shall be subject to legal interest at the rate of six percent
(6%) per annum reckoned from the finality of this
Resolution, the date when the quantification of damages
may be deemed to have been reasonably ascertained,
until full satisfaction thereof.

R TRANSPORT CORPORATION, Petitioner, v. LUISITO G.

YU, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45
of the Rules of Court seeking to reverse and set aside the
Decision1 and Resolution,2 dated September 9, 2005 and August 8,
2006, respectively, of the Court of Appeals (CA) in CA-G.R. CV No.
84175.
The antecedent facts are as follows:
At around 8:45 in the morning of December 12, 1993, Loreta J.
Yu, after having alighted from a passenger bus in front of
Robinsons Galleria along the north-bound lane of Epifanio de los
Santos Avenue (EDSA), was hit and run over by a bus driven by
Antonio P. Gimena, who was then employed by petitioner R
Transport Corporation. Loreta was immediately rushed to Medical
City Hospital where she was pronounced dead on arrival. 3
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WHEREFORE, the Decision dated November 10, 2010 of

the Court of Appeals in CA-G.R. CV No. 93164
is AFFIRMED with MODIFICATION. The petitioners,
Unknown Owner of the Vessel M/V China Joy, Samsun
Shipping Ltd. and Inter-Asia Marine Transport, Inc., are
hereby ordered to paythe respondent, Asian Terminals,
Inc., actual and compensatory damages in the amount of

On February 3, 1994, the husband of the deceased, respondent

Luisito G. Yu, filed a Complaint for damages before the Regional
Trial Court (RTC) of Makati City against petitioner R Transport,
Antonio Gimena, and Metro Manila Transport Corporation (MMTC)
for the death of his wife. MMTC denied its liability reasoning that it
is merely the registered owner of the bus involved in the incident,
the actual owner, being petitioner R Transport.4 It explained that
under the Bus Installment Purchase Program of the government,

MMTC merely purchased the subject bus, among several others,

for resale to petitioner R Transport, which will in turn operate the
same within Metro Manila. Since it was not actually operating the
bus which killed respondents wife, nor was it the employer of the
driver thereof, MMTC alleged that the complaint against it should
be dismissed.5 For its part, petitioner R Transport alleged that
respondent had no cause of action against it for it had exercised
due diligence in the selection and supervision of its employees and
drivers and that its buses are in good condition. Meanwhile, the
driver Antonio Gimena was declared in default for his failure to file
an answer to the complaint.
After trial on the merits, wherein the parties presented their
respective witnesses and documentary evidence, the trial court
rendered judgment in favor of respondent Yu ruling that petitioner
R Transport failed to prove that it exercised the diligence required
of a good father of a family in the selection and supervision of its
driver, who, by its negligence, ran over the deceased resulting in
her death. It also held that MMTC should be held solidarily liable
with petitioner R Transport because it would unduly prejudice a
third person who is a victim of a tort to look beyond the certificate
of registration and prove who the actual owner is in order to
enforce a right of action. Thus, the trial court ordered the payment
of damages in its Decision6 dated June 3, 2004, the dispositive
portion of which reads:
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WHEREFORE, foregoing premises considered, judgment is hereby

rendered ordering defendants Rizal Transport and Metro Manila
Transport Corporation to be primarily and solidarily liable and
defendant Antonio Parraba Gimena subsidiarily liable to plaintiff
Luisito Yu as follows:
1.

Actual damages in the amount of Php78,357.00 subject to

interest at the legal rate from the filing of the complaint
until fully paid;

2.

Loss of income in the amount of Php500,000.00;

3.

Moral damages in the amount of P150,000.00;

4.

Exemplary damages in the amount of P20,000.00;

5.

Attorneys fees in the amount of P10,000.00; and

6.

Costs of suit.7

On September 9, 2005, the CA affirmed the Decision of the RTC

with modification that defendant Antonio Gimena is made solidarily
liable for the damages caused to respondent. According to the
appellate court, considering that the negligence of Antonio Gimena
was sufficiently proven by the records of the case, and that no
evidence of whatever nature was presented by petitioner to
support its defense of due diligence in the selection and
supervision of its employees, petitioner, as the employer of
Gimena, may be held liable for the damage caused. The CA noted
that the fact that petitioner is not the registered owner of the bus
which caused the death of the victim does not exculpate it from
liability.8 Thereafter, petitioners Motion for Reconsideration was
further denied by the CA in its Resolution9 dated August 8, 2006.
Hence, the present petition.
Petitioner essentially invokes the following ground to support its
petition:
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I.
THE COURT OF APPEALS ERRED IN AFFIRMING THE RULING OF
THE REGIONAL TRIAL COURT FINDING PETITIONER LIABLE FOR
THE DAMAGES CAUSED BY THE NEGLIGENCE OF ITS EMPLOYEE,
WHICH WAS NOT SUPPORTED BY THE EVIDENCE ON RECORD.
Petitioner insists that the CA and the RTC were incorrect in ruling
that its driver was negligent for aside from the mere speculations
and uncorroborated testimonies of the police officers on duty at
the time of the accident, no other evidence had been adduced to
prove that its driver was driving in a reckless and imprudent
manner. It asserts that contrary to the findings of the courts
below, the bus from which the victim alighted is actually the
proximate cause of the victims death for having unloaded its
passengers on the lane where the subject bus was traversing.
Moreover, petitioner reiterates its argument that since it is not the
registered owner of the bus which bumped the victim, it cannot be

held liable for the damage caused by the same.

regulate the conduct of human affairs, would do, or the doing of

something which a prudent and reasonable man would not do.15

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We disagree.
Time and again, it has been ruled that whether a person is
negligent or not is a question of fact which this Court cannot pass
upon in a petition for review on certiorari, as its jurisdiction is
limited to reviewing errors of law.10 This Court is not bound to
weigh all over again the evidence adduced by the parties,
particularly where the findings of both the trial and the appellate
courts on the matter of petitioners negligence coincide. As a
general rule, therefore, the resolution of factual issues is a function
of the trial court, whose findings on these matters are binding on
this Court, more so where these have been affirmed by the Court
of Appeals,11save for the following exceptional and meritorious
circumstances: (1) when the factual findings of the appellate court
and the trial court are contradictory; (2) when the findings of the
trial court are grounded entirely on speculation, surmises or
conjectures; (3) when the lower courts inference from its factual
findings is manifestly mistaken, absurd or impossible; (4) when
there is grave abuse of discretion in the appreciation of facts; (5)
when the findings of the appellate court go beyond the issues of
the case, or fail to notice certain relevant facts which, if properly
considered, will justify a different conclusion; (6) when there is a
misappreciation of facts; (7) when the findings of fact are
themselves conflicting; and (8) when the findings of fact are
conclusions without mention of the specific evidence on which they
are based, are premised on the absence of evidence, or are
contradicted by evidence on record.12
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After a review of the records of the case, we find no cogent reason

to reverse the rulings of the courts below for none of the
aforementioned exceptions are present herein. Both the trial and
appellate courts found driver Gimena negligent in hitting and
running over the victim and ruled that his negligence was the
proximate cause of her death. Negligence has been defined as "the
failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers
injury.13Verily, foreseeability is the fundamental test of
negligence.14 It is the omission to do something which a
reasonable man, guided by those considerations which ordinarily

In this case, the records show that driver Gimena was clearly
running at a reckless speed. As testified by the police officer on
duty at the time of the incident16 and indicated in the Autopsy
Report,17 not only were the deceaseds clothes ripped off from her
body, her brain even spewed out from her skull and spilled over
the road. Indeed, this Court is not prepared to believe petitioners
contention that its bus was travelling at a normal speed in
preparation for a full stop in view of the fatal injuries sustained by
the deceased. Moreover, the location wherein the deceased was hit
and run over further indicates Gimenas negligence. As borne by
the records, the bus driven by Gimena bumped the deceased in a
loading and unloading area of a commercial center. The fact that
he was approaching such a busy part of EDSA should have already
cautioned the driver of the bus. In fact, upon seeing that a bus has
stopped beside his lane should have signalled him to step on his
brakes to slow down for the possibility that said bus was unloading
its passengers in the area. Unfortunately, he did not take the
necessary precaution and instead, drove on and bumped the
deceased despite being aware that he was traversing a commercial
center where pedestrians were crossing the street. Ultimately,
Gimena should have observed due diligence of a reasonably
prudent man by slackening his speed and proceeding cautiously
while passing the area.
Under Article 218018 of the New Civil Code, employers are liable for
the damages caused by their employees acting within the scope of
their assigned tasks. Once negligence on the part of the employee
is established, a presumption instantly arises that the employer
was remiss in the selection and/or supervision of the negligent
employee. To avoid liability for the quasi-delict committed by its
employee, it is incumbent upon the employer to rebut this
presumption by presenting adequate and convincing proof that it
exercised the care and diligence of a good father of a family in the
selection and supervision of its employees.19
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Unfortunately, however, the records of this case are bereft of any

proof showing the exercise by petitioner of the required diligence.
As aptly observed by the CA, no evidence of whatever nature was
ever presented depicting petitioners due diligence in the selection

and supervision of its driver, Gimena, despite several opportunities

to do so. In fact, in its petition, apart from denying the negligence
of its employee and imputing the same to the bus from which the
victim alighted, petitioner merely reiterates its argument that since
it is not the registered owner of the bus which bumped the victim,
it cannot be held liable for the damage caused by the same.
Nowhere was it even remotely alleged that petitioner had
exercised the required diligence in the selection and supervision of
its employee. Because of this failure, petitioner cannot now avoid
liability for the quasi-delict committed by its negligent employee.
At this point, it must be noted that petitioner, in its relentless
attempt to evade liability, cites our rulings in Vargas v.
Langcay20 and Tamayo v. Aquino21 insisting that it should not be
held solidarily liable with MMTC for it is not the registered owner of
the bus which killed the deceased. However, this Court, in Jereos
v. Court of Appeals, et al.,22 rejected such contention in the
following wise:
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The right to be indemnified being recognized, recovery by the

registered owner or operator may be made in any form-either by a
cross-claim, third-party complaint, or an independent action. The
result is the same.23
Moreover, while We held in Tamayo that the responsibility of the
registered owner and actual operator of a truck which caused the
death of its passenger is not solidary, We noted therein that the
same is due to the fact that the action instituted was one for
breach of contract, to wit:
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The decision of the Court of Appeals is also attacked insofar as it

holds that inasmuch as the third-party defendant had used the
truck on a route not covered by the registered owner's franchise,
both the registered owner and the actual owner and operator
should be considered as joint tortfeasors and should be made
liable in accordance with Article 2194 of the Civil Code. This Article
is as follows:
Art. 2194. The responsibility of two or more persons who are liable
for a quasi-delict is solidary.
But the action instituted in the case at bar is one for breach
of contract, for failure of the defendant to carry safely the
deceased for her destination. The liability for which he is
made responsible, i.e., for the death of the passenger, may
not be considered as arising from a quasi-delict. As the
registered owner Tamayo and his transferee Rayos may not
be held guilty of tort or a quasi-delict; their responsibility is
not solidary as held by the Court of Appeals.
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Finally, the petitioner, citing the case of Vargas vs. Langcay,

contends that it is the registered owner of the vehicle,
rather than the actual owner, who must be jointly and
severally liable with the driver of the passenger vehicle for
damages incurred by third persons as a consequence of
injuries or death sustained in the operation of said vehicle.
The contention is devoid of merit. While the Court therein
ruled that the registered owner or operator of a passenger
vehicle is jointly and severally liable with the driver of the
said vehicle for damages incurred by passengers or third
persons as a consequence of injuries or death sustained in
the operation of the said vehicle, the Court did so to correct
the erroneous findings of the Court of Appeals that the
liability of the registered owner or operator of a passenger
vehicle is merely subsidiary, as contemplated in Art. 103 of
the Revised Penal Code. In no case did the Court exempt
the actual owner of the passenger vehicle from liability. On
the contrary, it adhered to the rule followed in the cases of Erezo
vs. Jepte, Tamayo vs. Aquino, and De Peralta vs. Mangusang,
among others, that the registered owner or operator has the right
to be indemnified by the real or actual owner of the amount that
he may be required to pay as damage for the injury caused.

The question that poses, therefore, is how should the holder of the
certificate of public convenience, Tamayo, participate with his
transferee, operator Rayos, in the damages recoverable by the
heirs of the deceased passenger, if their liability is not that of Joint
tortfeasors in accordance with Article 2194 of the Civil Code. The
following considerations must be borne in mind in determining this
question. As Tamayo is the registered owner of the truck, his
responsibility to the public or to any passenger riding in the vehicle
or truck must be direct, for the reasons given in our decision in the
case of Erezo vs. Jepte, supra, as quoted above. But as the
transferee, who operated the vehicle when the passenger died, is
the one directly responsible for the accident and death he should
in turn be made responsible to the registered owner for what the

latter may have been adjudged to pay. In operating the truck

without transfer thereof having been approved by the Public
Service Commission, the transferee acted merely as agent of the
registered owner and should be responsible to him (the registered
owner), for any damages that he may cause the latter by his
negligence.24
However, it must be noted that the case at hand does not involve a
breach of contract of carriage, as in Tamayo, but a tort or quasidelict under Article 2176,25 in relation to Article 218026 of the New
Civil Code. As such, the liability for which petitioner is being made
responsible actually arises not from a pre-existing contractual
relation between petitioner and the deceased, but from a damage
caused by the negligence of its employee. Petitioner cannot,
therefore, rely on our ruling inTamayo and escape its solidary
liability for the liability of the employer for the negligent conduct of
its subordinate is direct and primary, subject only to the defense of
due diligence in the selection and supervision of the employee. 27
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Indeed, this Court has consistently been of the view that it is for
the better protection of the public for both the owner of record and
the actual operator to be adjudged jointly and severally liable with

the driver.28 As aptly stated by the appellate court, the principle of

holding the registered owner liable for damages notwithstanding
that ownership of the offending vehicle has already been
transferred to another is designed to protect the public and not as
a shield on the part of unscrupulous transferees of the vehicle to
take refuge in, inorder to free itself from liability arising from its
own negligent act.29
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Hence, considering that the negligence of driver Gimena was

sufficiently proven by the records of the case, and that no
evidence of whatever nature was presented by petitioner to
support its defense of due diligence in the selection and
supervision of its employees, petitioner, as the employer of
Gimena, may be held liable for damages arising from the death of
respondent Yus wife.
WHEREFORE, premises considered, the instant petition
is DENIED. The Decision and Resolution, dated September 9,
2005 and August 8, 2006, respectively, of the Court of Appeals in
CA-G.R. CV No. 84175 are hereby AFFIRMED.
SO ORDERED.