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
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.
2
Extraordina
ry diligence
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
Contracts
with
particular
individual
s
or
groups
only
Ordinary
diligence
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
The
The
vessel is functions of function
hired
to an arrastre of
bring
operator
stevedor
another
has nothing es
vessel to to do with involves
another
the
trade the
place;
and
loading
refers to a business of and
service
navigation, unloadin
rendered
nor to the g
of
to
a use
or coastwis
vessel by operation
e vessels
towing for of vessels. calling at
the mere He is no the port.
purpose of different
expediting from that of
her
a
voyage
depositary
without
or
reference
warehouse
to
any man.
circumsta
nces
of
danger.
*The SC held that the following services are
not considered a common carrier:
1) purely arrastre services;
*comparable to that as warehouseman and
depositor
2) purely stevedoring services; and
3) purely towage services.
*In Crisostomo v CA, the SC held that the
respondent being a travel agency is not a
common carrier because the services offered
is not one that carries passenger from one
place to another.
4. Tests to determine common
carrier
Tests:
a. He must engaged in the
business of carrying goods for
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effect
even
when
they
are
temporarily unloaded or stored in
transit, unless the shipper or owner
has made use of the right of
stoppage in transitu.
Article 1738 of the New Civil
Code
provides
that:
The
extraordinary
liability
of
the
common carrier continues to be
operative even during the time the
goods are stored in a warehouse of
the carrier at the place of
destination, until the consignee has
been advised of the arrival of the
goods and has had reasonable
opportunity thereafter to remove
them or otherwise dispose of
them.
3. Defenses of common carriers
Article 1734 of the New Civil
Code provides that: Common
carriers are responsible for the
loss, destruction, or deterioration
of the goods, unless the same is
due to any of the following causes
only:
(1) Flood, storm, earthquake,
lightning, or other natural disaster
or calamity;
(2) Act of the public enemy in war,
whether international or civil;
(3) Act of omission of the shipper
or owner of the goods;
(4) The character of the goods or
defects in the packing or in the
containers;
(5) Order or act of competent
public authority.
*The enumeration is exclusive or a
closed list.
General Rule: Common carriers
are responsible for the loss,
7
carrier
must
exercise
due
diligence to forestall or lessen
the loss.
*If the defect is apparent, the
carrier may refuse to accept the
goods for carriage; if the
shipper insists, the remedy is to
make a protestation; make a
foul bill of lading.
*In Iron Bulk v CA (Dec. 8,
2003), carrier issued pro forma
bill of lading stated where in
that it accepted goods in good
condition. The goods arrived
defective. The SC held that the
carrier is not exempt from
liability because it accepted the
goods without protestation.
*Foul Bill of Lading preserves
the right of the carrier to use
the excuse provided in 1734.
e. Order of public authority
Article 1743 of the New Civil
Code states that: If through
the order of public authority the
goods are seized or destroyed,
the common carrier is not
responsible,
provided
said
public authority had power to
issue the order.
*The important requisite is that
the public authority has the
power to issue an order.
Case: Ganzon v CA
4. Contributory negligence of the
shipper
Article 1741 of the New Civil
Code states that: If the shipper or
owner merely contributed to the
loss, destruction or deterioration of
the goods, the proximate cause
thereof being the negligence of the
common carrier, the latter shall be
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2.
3.
4.
5.
vessels
seaworthiness
and
compliance with all maritime
laws.
*The unseaworthiness can be
established by the fact that it
did not withstand the natural
and inevitable action of the sea.
Overloading
*Duty to exercise due diligence
includes the duty to take
passengers or cargoes that are
within the carrying capacity of
the vessel.
Proper storage
*The ship must not be only
seaworthy but it must also be
cargoworthy. The ship must be
an efficient storehouse for her
cargo.
*The vessel must be adequately
equipped and properly manned.
Obligation of captain and
crew
*If the negligence of the captain
and crew can be traced to the
fact that they are really
incompetent,
the
Limited
Liability Rule cannot be invoked
because the ship owner may be
deemed negligent.
Rule
on
deviation
and
transhipment Deviation
*If route is stipulated upon by
the shipper and carrier, carrier
cant change unless due to
force majeure.
*Carrier shall be liable for all
losses suffered from any other
cause,
beside
the
sum
stipulated for such case.
*If due to said force majeure he
took another route and incurred
expenses by reason thereof, he
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
is subsidiarily liable only if the
driver is convicted and declared
insolvent.
Basis: Article 100 of the Revised
Penal Code
Culpa aquiliana the carrier and
the driver are solidarily liable as
joint tortfeasor.
Basis: Article 2180 of the New Civil
Code
23
The
exclusively
real
and
hypothecary nature of maritime
law operates to limit the liability of
the shipowner to the value of the
vessel, earned freightage and
proceeds of the insurance, if any.
NO VESSEL NO LIABILITY
expresses in a nutshell the limited
liability rule. The total destruction
of the vessel extinguishes maritime
lien as there is no longer any res to
which it can attach.
Q: Is this rule applies in the
handling of the passengers?
A: YES
Q: Whose liability is this?
A: Shipowner or Agents.
Article 586 2nd paragraph states
that: By ship agent is understood
the
person
entrusted
with
provisioning or representing the
vessel in the port in which it may
be found.
*Ship agent is the only person that
can be sued directly.
Reason: Article 618 of the Code of
Commerce provides so.
Article 618 1st paragraph states
that: The ship captain shall be
civilly liable to the ship agent, and
the latter to the third persons who
may have made contracts with the
former; x x x.
Q: What kind?
A: Maritime in nature; marine
transactions
connected
with
maritime law; maritime trade and
commerce
Purpose:
To
encourage
shipbuilding
and
maritime
transactions
Article 587 of the Code of
Commerce provides that: The
27
owners,
after
a
judicial
appraisement of the value of
the
portion
or
portions
assigned. The resolutions of the
majority
relating
to
the
dissolution of the partnership
and sale of the vessel shall also
be binding on the minority. The
sale of the vessel must be made
at public auction, subject to the
provisions of the law of civil
procedure,
unless
the
coowners
unanimously
agree
otherwise, saving always the
right
of
repurchase
and
redemption provided for in
Article 575.
Article 593 of the Code of
Commerce provides that: The
owners of a vessel shall have
preference in her charter over
other persons, under the same
conditions and price. If two or
more of them should claim this
right, the one having the
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
33
a. Qualifications
Article 609 of the Code of
Commerce
states
that:
Captains, masters or patrons of
vessels must be Filipinos, have
legal capacity to contract in
accordance with this code, and
prove the skill, capacity, and
qualifications
necessary
to
command and direct the vessel,
as established by marine or
navigation laws, ordinances, or
regulations, and must not be
disqualified according to the
same for the discharge of the
duties of the position. If the
owner of a vessel desired to be
the captain thereof, without
having the legal qualifications
therefor, he shall limit himself to
the financial administration of
the vessel, and shall intrust the
navigation
to
a
person
possessing the qualifications
required by said ordinances and
regulations.
b. Powers and functions
Article 610 of the Code of
Commerce states that: The
following
powers
shall
be
inherent in the position of
captain, master or patron of a
vessel: 1. To appoint or make
contracts with the crew in the
absence of the ship agent, and
to propose said crew, should
said agent be present; but the
ship agent may not employ any
member against the captains
express refusal; 2. To command
the crew and direct the vessel
to the port of its destination, in
35
vessel,
he
shall
act
in
concurrence with the latter.
Article 611 of the Code of
Commerce states that: In
order to comply with the
obligations mentioned in the
preceding article, the captain,
when he has no funds and does
not expect to receive any from
the ship agent, shall obtain the
same in the successive order
stated below: 1. By requesting
said funds from the consignee
of the vessel or correspondents
of the ship agent; 2. By applying
to the consignees of the cargo
or to those interested therein; 3.
By drawing on the ship agent; 4.
By
borrowing
the
amount
required by means of a loan on
bottomry; and 5. By selling a
sufficient amount of the cargo
to cover the sum absolutely
indispensable for the repair of
the vessel and to enable it to
continue its voyage. In these
two last cases he must apply to
the judicial authority of the port,
if in the Philippines, and to the
consul of the Republic of the
Philippines if in a foreign
country, and where there is
none, to the local authority,
proceeding in accordance with
the provisions of Article 583,
and with the provisions of the
law of civil procedure.
Article 612 of the Code of
Commerce states that: The
following obligations shall be
inherent in the office of the
captain:
36
inflammable
or
explosive
substances,
without
the
precautions
which
are
recommended for their packing,
handling and isolation; not to
permit the carriage on deck of
any cargo which by reason of its
arrangement, volume, or weight
makes the work of the sailors
difficult,
and
which
might
endanger the safety of the
vessel; and if, on account of the
nature of the merchandise, the
special
character
of
the
shipment, and principally the
favorable season in which it is
undertaken, merchandise may
be carried on deck, he must
hear the opinion of the officers
of the vessel and have the
consent of the shippers and of
the ship agent;
6. To demand a pilot at the
expense of the vessel whenever
required by the navigation, and
principally when he has to enter
a port, canal, or river, or has to
take a roadstead or anchoring
place with which neither he nor
the officers and crew are
acquainted;
7. To be on deck on reaching
land and to take command on
entering and leaving ports,
canals, roadsteads, and rivers,
unless there is a pilot on board
discharging his duties. He shall
not spend the night away from
the vessel except for serious
causes or by reason of official
business;
38
represented
capacity
To unload cargo
clandestinely
placed
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
42
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
*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.
50
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
WARSAW CONVENTION:
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 his
vessel
in
rendering
salvage services
58