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G.R. No. 171337
July 11, 2012
Cua filed an action for damages against Wallem and
Advance Shipping asking payment for damage to shipment
of Brazilian Soyabean consigned to him

Wallem filed a motion to dismiss on the ground of prescription.

Section 3(6) of the COGSA provides for a prescriptive period of
1 year form the time of delivery of the goods. Wallem alleged
that the goods were delivered to Cua on August 16, 1989, but
the damages suit was instituted only on November 12, 1990.

It later filed an omnibus motion withdrawing its motion to

dismiss but made an express reservation that it was not waiving
"the defense of prescription and will allege as one of its

FACTS defenses, such defense of prescription and/or laches in its

Answer should this be required by the circumstances."
Cua contends that there was an Wallem deny any admission and
agreement to extend the period to file the contends that the withdrawal the
suit and this was already admitted by motion to dismiss does not amount to
Wallem when it withdrew its motion to an admission nor does it amount to a
dismiss on the ground of prescription. waiver of the defense for prescription.

Whether or not there was waiver of the

defense of prescription (NO)

GNERAL RULE: The failure to raise or

plead the grounds amounts to a HENCE, there can be no waiver of the ground
of prescription because the courts may
consider such ground motu proprio and
dismiss the complaint if the facts supporting
the said ground are apparent from the
Whether or not the Although the action was filed more than 1 year
pleadings and the from the time of delivery which is July 8, 1989
evidence support a (COGSA prescriptive period), it was alleged by
finding that Cua’s Cua in his pleading there was an agreement
claim has prescribed between the parties to extend this period to
(NO) Nov. 12, 1990.

It was admitted by Wallem that the case

was filed on “November 11, 1990, within the
extended period agreed upon to file suit.”