Fortuitous event 9/25/2018 5:34:00 PM

Servando
 Article 1736 of the Civil Code imposes upon common carriers the
duty to observe extraordinary diligence from the moment the goods
are unconditionally placed in their possession "until the same are
delivered, actually or constructively, by the carrier to the consignee
or to the person who has a right to receive them, without prejudice
to the provisions of Article 1738
 The court a quo held that the delivery of the shipment in question
to the warehouse of the Bureau of Customs is not the delivery
contemplated by Article 1736; and since the burning of the
warehouse occurred before actual or constructive delivery of the
goods to the appellees, the loss is chargeable against the CC
 It should be pointed out, however, that in the bills of lading issued
for the cargoes in question, the parties agreed to limit the
responsibility of the carrier for the loss or damage that may be
caused to the shipment by inserting therein the following
stipulation:
 Clause 14. Carrier shall not be responsible for loss or damage to
shipments billed 'owner's risk' unless such loss or damage is due to
negligence of carrier. Nor shall carrier be responsible for loss or
damage caused by force majeure, dangers or accidents of the sea
or other waters; war; public enemies; . . . fire
 Ong Yiu vs. Court of Appeals: Such provisions have been held to be
a part of the contract of carriage, and valid and binding upon the
passenger regardless of the latter's lack of knowledge or assent to
the regulation'. It is what is known as a contract of 'adhesion', in
regards which it has been said that contracts of adhesion wherein
one party imposes a ready made form of contract on the other, as
the plane ticket in the case at bar, are contracts not entirely
prohibited. The one who adheres to the contract is in reality free to
reject it entirely; if he adheres, he gives his consent.
 where fortuitous event or force majeure is the immediate and
proximate cause of the loss, the obligor is exempt from liability for
non-performance. The Partidas, the antecedent of Article 1174 of
the Civil Code, defines 'caso fortuito' as 'an event that takes place
by accident and could not have been foreseen. Examples of this are
 destruction of houses, unexpected fire, shipwreck, violence of
robbers.'
 The lower court in its decision relied on the ruling laid down in Yu
Biao Sontua vs. Ossorio 6, where this Court held the defendant
liable for damages arising from a fire caused by the negligence of
the defendant's employees while loading cases of gasoline and
petroleon products. But unlike in the said case, there is not a shred
of proof in the present case that the cause of the fire that broke out
in the Custom's warehouse was in any way attributable to the
negligence of the appellant or its employees. Under the
circumstances, the appellant is plainly not responsible
 Aquino concurring: no longer in the control of the CC, no amount of
EOD would have prevented the fire

Cokaliong
 The liability of a common carrier for the loss of goods may, by
stipulation in the bill of lading, be limited to the value declared by
the shipper. On the other hand, the liability of the insurer is
determined by the actual value covered by the insurance policy and
the insurance premiums paid therefor, and not necessarily by the
value declared in the bill of lading.
 UCPB as subrogee filed a case against CC on the basis of Tort,
alleged that the loss of the cargo was due to the negligence of CC
and presented subrogation receipts / deeds and marine risk notes
 Answer and affirmative defense of the CC: the engine room of
the M/V Tandag caught fire after it passed the Mandaue/Mactan
Bridge resulting in the total loss of the vessel and its cargo; an
investigation was conducted by the Board of Marine Inquiry of the
Philippine Coast Guard which rendered a Report, dated February
13, 1992 absolving [petitioner] of any responsibility on account of
the fire, which Report of the Board was approved by the District
Commander of the Philippine Coast Guard
 Was the loss due to force majeure? NO.
 The uncontroverted findings of the Philippine Coast Guard show that
the M/V Tandag sank due to a fire, which resulted from a crack in
 the auxiliary engine fuel oil service tank. Fuel spurted out of
the crack and dripped to the heating exhaust manifold,
causing the ship to burst into flames. The crack was located on
the side of the fuel oil tank, which had a mere two-inch gap
from the engine room walling, thus precluding constant
inspection and care by the crew.
 Having originated from an unchecked crack in the fuel oil service
tank, the fire could not have been caused by force majeure. Broadly
speaking, force majeure generally applies to a natural accident,
such as that caused by a lightning, an earthquake, a tempest or a
public enemy.
 Eastern Shipping Lines, Inc. v. Intermediate Appellate Court: fire
does not fall in the category of an act of God
 1735: except in cases mentioned in 1734, cc is presumed negligent
in case of injury
 Where loss of cargo results from the failure of the officers of a
vessel to inspect their ship frequently so as to discover the
existence of cracked parts, that loss cannot be attributed to force
majeure, but to the negligence of those officials.
 Ensuring the seaworthiness of the vessel is the first step in
exercising the required vigilance. Petitioner did not present
sufficient evidence showing what measures or acts it had
undertaken to ensure the seaworthiness of the vessel.
 Liability of the CC limited to the amount in the bill of lading which
was 100,000 yen. a shipper/consignee that undervalues the real
worth of the goods it seeks to transport does not only violate a
valid contractual stipulation, but commits a fraudulent act when it
seeks to make the common carrier liable for more than the amount
it declared in the bill of lading.
 9/25/2018 5:34:00 PM

Gatchalian v. Delim
 Joint affidavit was signed by the passengers / victims of the
Thames bus accident in La Union stating among others that the
victims are no longer interested to file a complaint, criminal or civil
against the driver and owner of the said thames, because it was an
accident and that they have gone to the extent of helping us in our
injuries.
 One of them, Gatchalian filed a claim for damages extra contractu
(TORT) to recover compensatory and moral damages.
o Left her with a scar- inferiorty, had to live in seclusion, away
from friends, 10k for plastic surgery and moral damages.
 RTC dismissed the complaint on because of the joint affidavit.
 CA affirmed.
 SC: WAIVER is NOT VALID.
 A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms

which leave no doubt as to the intention of a person to give up a right or benefit which legally

A waiver may not casually be attributed to a person

pertains to him.

when the terms thereof do not explicitly and clearly evidence an

intent to abandon a right vested in such person.
 Yepes and Susaya v. Samar Express Transit (supra)
o we hereby manifest our desire to waive any and all claims
against the operator of the Samar Express Transit
o expressed a "desire" to make the waiver — which obviously is
not the same as making an actual waiver of their right. A
waiver of the kind invoked by appellant must be clear and
unequivocal
 WHY the WAIVER was VOID
o 1. NOT CLEAR AND UNEQUIVOCAL
o 2. She was dizzy when she signed the document without
bothering the affidavit in entirety
o 3. AGAINST PUBLIC POLICY- CCs are bound to carry the
passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons
with due regard for all circumstances.
 WAS NOT ABLE TO PROVE EOD, WAS NEGLIGENT – ignored the
snapping sound. “ugali ti makina dayta” hence not checked.
  DAMAGES
o Lost income: hello na lay off kna kasi hindi ka daw civil
service eligible
o Scar: violation of her physical integrity. 15k for surgery

Sabena
 that defendant incorporated in all Sabena Plane Tickets, including
plaintiff’s issued to plaintiff in Manila on August 21, 1987, a warning
that 'Items of value should be carried on your person' and that
some carriers assume no liability for fragile, valuable or perishable
articles and that further information may be obtained from the
carrier for guidance'; that granting without conceding that
defendant is liable, its liability is limited only to US $20.00 per kilo
due to plaintiff's failure to declare a higher value on the contents of
her checked in luggage and pay additional charges thereon.
 Proximate cause cannot avail.
 It remained undisputed that private respondent's luggage was lost
while it was in the custody of petitioner. It was supposed to arrive
on the same ight that private respondent took in returning to Manila
on 02 September 1987. When she discovered that the luggage was
missing, she promptly accomplished and led a Property Irregularity
Report. She followed up her claim on 14 September 1987, and led,
on the following day, a formal letter-complaint with petitioner.
 1733 (EOD in the diligence over the goods) and 1734 (when cc not
liable for desctruction of the goods) remain unchanged even when
the contract is breached by tort
 Sabena tried to evade liability by stating that prox cause of the loss
of the cargoes was the negligence of the petitioner. However, It
remained undisputed that private respondent's luggage was lost
while it was in the custody of petitioner


SANICO and Castro v. Colipano

 Passenger colipano rode on a jeepney operated by sanico driven by
castro. Made to sit on an empty beer case with her sleeping child on
 her lap. Jeep went uphill. Tried to push on her feet but the flooring
was wet. Leg got amputated.
 Lower courts held castro and sanico solidarily liable – wrong.
o The contract was only breached by SANICO. Castro, driver
cannot be made liable based on breach of contract because
he is not a party to the contract. Passenger has no cause of
action against driver.
 Sanico liable as a CC.
o placed the passenger in greater danger when seated in an
extension seat. CC failed to rebut the presumption of
negligence.
o Defense of engine failure- lack regulary check ups
o Liable for contravention of the tenor of the obligation-
extension beer case seat
 VOID AFFIDAVIT OF DESISTANCE AND RELEASE OF CLAIM
o In absence of the proof that the contents were explained to
her. As she cannot understand English. Might have signed bec
of the promise of compensation.
o Requisites- 3rd and 4th are lacking
Possesses the right
Capable of disposing the right
Clear and equivocal
Not contrary to law morals and prejudicial to a 3rd
person with a right recognized by law.
o Colipano could not have clearly and unequivocally
waived her right to claim damages when she had no
understanding of the right she was waiving and the
extent of that right. Worse, she was made to sign a
document written in a language she did not
understand.
o Gatchalian v. Delim
o Colipano testified that she did not understand English and the
nature and extent of the waiver she was signing

Valenzuela Hardwood v. CA
 plaintiff (Valenzuela Hardwood and Industrial Supply, Inc.) entered
into an agreement with the defendant Seven Brothers (Shipping
Corporation) whereby the latter undertook to load on board its
vessel M/V Seven Ambassador the formers lauan round logs
numbering 940 at the port of Maconacon, Isabela for shipment to
Manila.
 Lower court ajudged seven bros liable – negligent in securing the
logs and that the non-liability clause in the charter party is void for
being contrary to public policy invoking 1745 of the NCC- CC will
not observe the diligenceof the a gff
 CA upheld validity of the stipulation
 Stipulation is valid.
o 1745 does not apply to private carriers.
o In a contract of private carriage, the parties may validly
stipulate that responsibility for the cargo rests solely on the
charterer, exempting the ship owner from liability for loss of
or damage to the cargo caused even by the negligence of the
ship captain. Pursuant to Article 1306 of the Civil Code, such
stipulation is valid because it is freely entered into by the
parties and the same is not contrary to law, morals, good
customs, public order, or public policy. Indeed, their contract
of private carriage is not even a contract of adhesion. We
stress that in a contract of private carriage, the parties may
freely stipulate their duties and obligations which perforce
would be binding on them.
o Unlike CC, PCs do not involve the general public.
o The general public enters into a contract of transportation
with common carriers without a hand or a voice in the
preparation thereof. The riding public merely adheres to the
contract; even if the public wants to, it cannot submit its own
stipulations for the approval of the common carrier. Thus, the
law on common carriers extends its protective mantle against
one-sided stipulations inserted in tickets, invoices or other
documents over which the riding public has no understanding
or, worse, no choice. Compared to the general public, a
charterer in a contract of private carriage is not similarly
 situated. It can -- and in fact it usually does -- enter into a
free and voluntary agreement. In practice, the parties in a
contract of private carriage can stipulate the carriers
obligations and liabilities over the shipment which, in turn,
determine the price or consideration of the charter. Thus, a
charterer, in exchange for convenience and economy, may
opt to set aside the protection of the law on common
carriers. When the charterer decides to exercise this
option, he takes a normal business risk.
 Whatever rights petitioner may have under the code of commerce
were waived when it entered into the charter party.
o As a general rule patrimonial rights may be waived as
opposed to rights to personality and family rights which may
not be made the subject of waiver.
 1170 and 1173: The Court notes that the foregoing articles are
applicable only to the obligor or the one with an obligation to
perform. In the instant case, Private Respondent Seven Brothers is
not an obligor in respect of the cargo, for this obligation to bear the
loss was shifted to petitioner by virtue of the charter party. This
shifting of responsibility, as earlier observed, is not void. The
provisions cited by petitioner are, therefore, inapplicable to the
present case.
Emergency 9/25/2018 5:34:00 PM

Gan
 The grounds cited therefor were lack of interest on the part of the
complaining witness to prosecute the case as evidenced by an
affidavit of desistance submitted to the trial court and lack of
eyewitness to sustain the charge.
 Applying the above test to the case at bar, we find the petitioner
not guilty of the crime of Simple Imprudence resulting in Homicide.
 The appellate court in finding the petitioner guilty said:
 The accused should have stepped on the brakes when she saw the
car going in the opposite direction followed by another which
overtook the first by passing towards its left. She should not only
have swerved the car she was driving to the right but should have
also tried to stop or lessen her speed so that she would not bump
into the pedestrian who was crossing at the time but also the
jeepney which was then parked along the street.
 The course of action suggested by the appellate court would seem
reasonable were it not for the fact that such suggestion did not take
into account the amount of time afforded petitioner to react to the
situation she was in. For it is undeniable that the suggested course
of action presupposes sufficient time for appellant to analyze the
situation confronting her and to ponder on which of the different
courses of action would result in the least possible harm to herself
and to others.
 we find that the appellate court is asking too much from a mere
mortal like the petitioner who in the blink of an eye had to exercise
her best judgment to extricate herself from a difficult and
dangerous situation caused by the driver of the overtaking vehicle.
Petitioner certainly could not be expected to act with all the
coolness of a person under normal conditions.

Delsan v. C&A
 On October 9, 1994, M/V Delsan Express, a ship owned and
operated by petitioner Delsan Transport Lines, Inc., anchored at the
Navotas Fish Port for the purpose of installing a cargo pump and
clearing the cargo oil tank. At around 12:00 midnight of October
20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express
 received a report from his radio head operator in Japan that a
typhoon was going to hit Manila in about eight (8) hours
 At approximately 8:35 in the morning of October 21, 1994, Capt.
Jusep tried to seek shelter at the North Harbor but could not enter
the area because it was already congested. At 10:00 a.m., Capt.
Jusep decided to drop anchor at the vicinity of Vitas mouth, 4 miles
away from a Napocor power barge. At that time, the waves were
already reaching 8 to 10 feet high. Capt. Jusep ordered his crew to
go full ahead to counter the wind which was dragging the ship
towards the Napocor power barge. To avoid collision, Capt. Jusep
ordered a full stop of the vessel. He succeeded in avoiding the
power barge, but when the engine was re-started and the ship was
maneuvered full astern, it hit the deflector wall constructed by
respondent. The damage caused by the incident amounted to
P456,198.24.
 TC: Delsan not liable applying the emergency rule and fortuitous
event
 Court of Appeals was correct in holding that Capt. Jusep was
negligent in deciding to transfer the vessel only at 8:35 in the
morning of October 21, 1994. As early as 12:00 midnight of
October 20, 1994, he received a report from his radio head
operator in Japan that a typhoon was going to hit Manila after 8
hours. This, notwithstanding, he did nothing, until 8:35 in the
morning of October 21, 1994, when he decided to seek shelter at
the North Harbor, which unfortunately was already congested. The
finding of negligence cannot be rebutted upon proof that the ship
could not have sought refuge at the North Harbor even if the
transfer was done earlier. It is not the speculative success or failure
of a decision that determines the existence of negligence in the
present case, but the failure to take immediate and appropriate
action under the circumstances. Capt. Jusep, despite knowledge
that the typhoon was to hit Manila in 8 hours, complacently waited
for the lapse of more than 8 hours thinking that the typhoon might
change direction.
 e cannot claim that he waited for the sun to rise instead of moving
the vessel at midnight immediately after receiving the report
 because of the difficulty of traveling at night. The hour of 8:35 a.m.
is way past sunrise. Furthermore, he did not transfer as soon as the
sun rose because, according to him, it was not very cloudy and
there was no weather disturbance yet.
 When he ignored the weather report notwithstanding reasonable
foresight of harm, Capt. Jusep showed an inexcusable lack of care
and caution which an ordinary prudent person would have observed
in the same situation. Had he moved the vessel earlier, he could
have had greater chances of finding a space at the North Harbor
considering that the Navotas Port where they docked was very near
North Harbor. Even if the latter was already congested, he would
still have time to seek refuge in other ports.
 Clearly, the emergency rule is not applicable to the instant
case because the danger where Capt. Jusep found himself
was caused by his own negligence.
 t was held that due diligence in supervision requires the formulation
of rules and regulations for the guidance of employees and the
issuance of proper instructions as well as actual implementation and
monitoring of consistent compliance with the rules.

Damnum Absque Injuria 9/25/2018 5:34:00 PM

Farolan
 Ramon Farolan, Acting Commissioner of Customs, and Guillermo
Parayno, Chief of Customs Intelligence and Investigation Division
 Solmac Marketing Corporation is a corporation organized and
existing under the laws of the Philippines. It was the assignee,
transferee, and owner of an importation of Clojus Recycling Plastic
Products of 202,204 kilograms of what is technically known as
polypropylene film, valued at US$69,250.05.
 Without defect, polypropylene film is sold at a much higher price as
prime quality film. Once rejected as defective due to blemishes,
discoloration, defective winding, holes, etc., polypropylene film is
sold at a relatively cheap price without guarantee or return, and the
buyer takes the risk as to whether he can recover an average 30%
to 50% usable matter. This latter kind of polypropylene is known as
OPP film waste/scrap and this is what respondent SOLMAC claimed
the Clojus shipment to be.
 the Clojus shipment was not OPP film scrap, as declared by the
assignee respondent SOLMAC to the Bureau of Customs and BOI
Governor Lilia R. Bautista, but oriented polypropylene the
importation of which is restricted, if not prohibited, under Letter of
Instructions (LOI) No. 658-B. Specifically, Sections 1 and 2 of LOI
No. 658-B provide that:
 xxx xxx xxx
 1. The importation of cellophane shall be allowed only for quantities
and types of cellophane that cannot be produced by Philippine
Cellophane Film Corporation. The Board of Investments shall issue
guidelines regulating such importations.
 2. The Collector of Customs shall see to the apprehension of all
illegal importations of cellophane and oriented polypropylene (OPP)
and the dumping of imported stock lots of cellophane and OPP.

 Solmac filed the action for mandamus and injunction with the RTC
as above mentioned. It prayed for the unconditional release of the
subject importation. It also prayed for actual damages, exemplary
damages, and attorney's fees. As prayed for, the trial court issued a
writ of preliminary injunction.
  RTC granted

CUSTODIO v. CA
 The award of damages has no substantial legal basis. A reading of
the decision of the Court of Appeals will show that the award of
damages was based solely on the fact that the original plaintiff,
Pacifico Mabasa, incurred losses in the form of unrealized rentals
when the tenants vacated the leased premises by reason of the
closure of the passageway.
 However, the mere fact that the plaintiff suffered losses does not
give rise to a right to recover damages. To warrant the recovery of
damages, there must be both a right of action for a legal wrong
inflicted by the defendant, and damage resulting to the plaintiff
therefrom. Wrong without damage, or damage without wrong, does
not constitute a cause of action, since damages are merely part of
the remedy allowed for the injury caused by a breach or wrong.
Injury Damage Damages
illegal invasion of a legal loss, hurt, or harm recompense or
right which results from the compensation awarded
injury for the damage suffered

 there can be damage without injury in those instances in which the

loss or harm was not the result of a violation of a legal duty. These
situations are often called damnum absque injuria.
 in order that the law will give redress for an act causing damage,
that act must be not only hurtful, but wrongful. There must
be damnum et injuria.
 In order that the principle of abuse of right provided in Article 21 of
the Civil Code can be applied, it is essential that the following
requisites concur:
o (1) The defendant should have acted in a manner that is
contrary to morals, good customs or public policy; (MISSING
in this CASE)
o (2) The acts should be willful; and
o (3) There was damage or injury to the plaintiff.
  t is within the right of petitioners, as owners, to enclose and fence
their property. Article 430 of the Civil Code provides that "(e)very
owner may enclose or fence his land or tenements by means of
walls, ditches, live or dead hedges, or by any other means without
detriment to servitudes constituted thereon."
 When the owner of property makes use thereof in the general and
ordinary manner in which the property is used, such as fencing or
enclosing the same as in this case, nobody can complain of having
been injured, because the incovenience arising from said use can be
considered as a mere consequence of community life.

AMONOY v Sps Gutierrez

 Damnum absque injuria. Under this principle, the legitimate
exercise of a persons rights, even if it causes loss to another, does
not automatically result in an actionable injury. The law does not
prescribe a remedy for the loss. This principle does not, however,
apply when there is an abuse of a persons right, or when the
exercise of this right is suspended or extinguished pursuant to a
court order. Indeed, in the availment of ones rights, one must act
with justice, give others their due, and observe honesty and good
faith.
 The exercise of a right ends when the right disappears, and it
disappears when it is abused, especially to the prejudice of others.