2. Lopez vs. Duruelo [No.
29166, October 22, 1928] craft or floating structures of every kind without limitation,
1. Agusto Lopez wants to embark upon the inter island
steamer San Jacinto to go to Iloilo. The boat was in the
anchoring ground of the port of Silay, which was half a
mile distant from the port.
2. Lopez embarked at the landing in the motor boat
Jison, which was engaged in conveying passengers &
luggage back and forth from the landing to boats at anchor.
The motor boat is owned by defendant Jison and Duruelo
was the patron.
3. The motorboat Jison was overloaded since it had 14
passengers on board when it only had a capacity of 8/9 pax.
4. When the motorboat approached the steamer San
Jacinto, it came too near the stern of the ship & as
the propeller of the ship has not yet ceased to turn,
the blades of the propeller stuck the motor boat &
sank. The dangerous proximity w/ the propeller of the
steamship was due to the negligence of defendant Duruelo
as patron of Jison.
5. As the motorboat sank, Lopez was thrown into the water
against the propeller, and the revolving blades
inflicted various injuries upon him. He was in the
hospital for 8 months.
6. Hence, this petition by Lopez to claim damages for the
injuries he suffered.
7. Defendant filed a demurrer on the ground that the
complaint states no cause of action since the
complaint didnt allege that a protest was made by
Lopez 24 hours after the incident to the competent
authority at the port where the accident occurred. It
insisted that under 835 of the Code of Commerce
such is required. The demurrer was granted. Hence this
appeal.
ISSUE: Does the motor boat come within the definition under the
835 of the Code of Commerce to which protest is necessary before
there could be a cause of action? NO.
HELD:
Protest is not necessary in this case . The above-mentioned
article found in Book 3 under the Code of Commerce deals with
collisions of sea-going vessels and not applied to small
boats engaged in river & bay traffic.
The word "vessel" (Spanish, "buque," "nave"), used in the
section referred to was not intended to include all ships,
and the provisions of that section should not be held to
include minor craft engaged only in river and bay
traffic.
The word nave in Spanish is used interchangeably with
"buque" in the Code of Commerce w/c means "Ship, a vessel
with decks and sails." The use of the word decks is
significant since a deck is not a feature of the smallest types
of watercraft.
Vessels which are licensed to engage in maritime
commerce/commerce by sea, whether in foreign /coastwise
trade are regulated by Book 3 of the Code of Commerce.
Other vessels minor in nature and not engaged in
maritime commerce such as river boats and those carrying
passengers from ship to shore must be governed by Civil
Code or other special provisions of law.
In the case of Yu Con v Ipil, SC held that small vessel used for
transportation of merchandise by sea & making voyage from 1 port
to another and equipped for such purpose by the owner is a vessel
within the purview of the Code of Commerce to determine the
character & effect of the relations created b/w the cargo owners
and shipowner.
However, in this case, the motor boat Jison was propelled by
a 2nd hand motor, originally used for a tractor plow & had 8
person capacity.
The use for Jison was to carry passengers & luggages b/w
the landing at Silay & ships in the harbour.
The motor boat such as Jison is not the one
contemplated in Art. 835 of the Cpde of Commerce
w/c requires a protest in case of collision.
Assuming the protest is required and even if Art 835 would be
applied:
SC held that there should be fair interpreation of the
allegations of the complaint since the injuries suffered by
Lopez was in a nature as to excuse protest.
Since also under the same article, it states that lack of
protest cant prejudice a person not in a condition to make
known his wishes.
Hence, Lopez who suffered a compound fracture of the
femur & received other physical injuries, which caused him
 to stay at the hospital for 8 months, is not a condition to
make protest within 24hrs after such incident.
The demurrer was not well taken & must be overruled.