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Necessito vs.

Paras 104 Phil 75 Facts: On Januarr\y 28, 1954, Severina Garces and her one year old son, Precillano Necesito boarded passenger auto truck bus of the Philippine Rabbit Bus Lines at Agno, Pangasinan. After the bus entered a wooden bridge, the front wheels swerved to the right. The driver lost control, and after the wrecking the bridges wooden rails, the truck fell on its right side into a creek where water was breast deep. The mother, Severina was drowned and the son Precillano was injred. Issue: Whether or nor the carrier is liable for manufacturing defect of the steering knuckle. Held: It is clear that the carrier is not an insurer of the passengers safety. His liability rest upon negligence, that his failure to exercise utmost degree of diligence that the law requires. The passenger has neither choice nor control over the carrier in the selection and use of the equipment and the appliances in use by the carrier. Having no privity whatever with the manufacturer or vendor of the defective equipment, the passenger has no remedy against him, while carrier usually has. It is but logical, therefore, that the carrier, while not an insurer of the safety of his passengers, should nevertheless be held to answer for flaws of his equipment if such cause were at all discoverable. Francisco Ortigas, Jr. vs. Lufthansa German Airlines G.R. No. L-28773 June 30, 1975 Facts: Direct appeals of both parties plaintiff, Francisco Ortigas, and defendant Luthansa German Airlines, from the decision of the Court of First Instance of Manila Branch Y, condemning the defendant to pay plaintiff the amount of P100,000 as moral damages, P30,000 as exemplary or corrective damages, with interest of both sums at the legal rate from the commencement of this suit until fully paid, P20,000 as attorneys fees and the costs for the former failure to comply with its obligation to give first accommodation to (the latter) a (Filipino) passenger holding a first class ticket, aggravated by the giving of the space instead to a Belgian and the improper conduct of its agents in dealing with him during the occasion of such discriminatory violence of its contract of carriage. Issue:

Held: The court said that when it comes to contracts of common carriage, inattention and lack of care on the part of the carrier resulting in the failure of the passenger to be accommodated in class contracted for amounts to bad faith and fraud which entitles the passenger to the award of moral damages in accordance with the 2220 of the Civil Code. But in the instant case, the breach appears to the graver nature, since the preference given to the Belgian passenger over plaintiff was done willfully and in wanton disregard of plaintiffs rights and his dignity as a human being and as a Filipino, who may not be discriminated against with impunity, as found by the court below what worsened the situation of Ortigas was that Lufthansa succeeded in keeping him as its passenger by assuring him that he would be given first class accommodation at Cairo, the next station, the proper arrangements therefore having been made already, when in truth such was not the case. Although molested and embarrassed to the point that he had to take nitroglycerine pills to ward off a possible heart attack, Ortigas hardly had any choice, since his luggage was already in the plane. To his disappointment, when the plane reached Cairo, he was told by Lufthansa office there that no word at all had been received from Rome and they had no space for him in first class. Worse, similar false representations were made to him at Dharham and Calcutta. It was only at Bangkok where for the first time. Ortigas was at last informed that he could have a first class seat in the leg of the flight, from Bangkok to Hongkong. This Ortigas rejected, if only to make patent his displeasure and indignation at being so inconsiderately treated in the earlier part of his journey. In the light of all foregoing, there can be no doubt as to the right of Ortigas to damages, both moral and exemplary. Precedents we have consistently adhere to so dictate. Pedro Vasquez, Soledad Ortega, Cleto B. Bagaipo, Agustina Virtudes, Romeo Vasquez and Maximina Cainay vs. The Court of Appeals and Filipinas Pioneer Lines. Inc. 138 SCRA 553 Facts: The litigation involves a claim for damages for the loss at sea of petitioners respective children after the shipwreck of MV Pioneer Cebu due to typhoon Klaring in May of 1966. When the inter-island vessel MV Pioneer Cebu left the Port of Manila in te early morning of May 15, 1966 bound for Cebu, it had on board board the spouses Alfonso Vasquez and Filipinas Bagaipo and a four-year old boy, Mario Vasquez, among her passengers. The MV Pioneer Cebu encountered typhoon Klaring and struck a reef on the southern part of Malapascua Island, located somewhere north of island of Cebu and subsequently sunk. The aforementioned passengers were unheard from since then.

Plaintiffs seek the recovery of damages due to the loss of Alfonso Vasquez, Filipinas Bagaipo and Marlon Vasquez during the said voyage. It was found that when the vessel left Manila, its officers were already aware of the typhoon Klaring building up somewhere in Mindanao. The being no typhoon signals on the route from Manila to Cebu, and the vessel having been cleared by the Customs Authority, the MV Pioneer Cebu left on its voyage to Cebu despite the typhoon. Upon passing the Romblon and Jintotolo Island, however, the weather suddenly changed and heavy rains felt. Fearing that due to zero visibility, the vessel might hit Chocolate Island Group, the captain ordered a reversal of the course so that the vessel could weather out the typhoon b facing the winds and the waves in the open. Unfortunately, at about noontime on May 16, 1966, the vessel struck a reef near Malapasca Island, sustaines leaks and eventually sunk, bringing with her Captain Floro Yap who was in command of the vessel. Due to the loss of their children, petitioners sued for damages before the Court Instance of Manila. Respondent defended on the plea of force majeure, and extinction of its liability by the actual loss of the vessel. After proper proceedings, the trial court awarded damages. On appeal, respondent Court reversed judgment and absolved private respondent from any liability. Hence, this Petition for Review on Certiorari. Issue: Held: With respect for the private respondents submission that the total loss of the vessel extinguished its liability pursuant to Article 587 of the Code of Commerce as construed in Yangco vs. Laserna, 73 Phil. 330 (1941), suffice it to state that even in the cited case, it was held that the liability of the shipowner is limited to the value of the vessel or to the insurance thereon, Despite the total loss of the vessel therefore, its insurance answers for the damages that the shipowner ar agent may be held liable for by reason of the death of its passengers. Judgment of the CFI reinstated. Philippine Home Assurance Corporation vs. Court of Appeals and Eastern Shipping Lines, INC. 257 SCRA 468 Facts: Eastern Shipping Lines, Inc. (ESLI) loaded on board SS Eastern Explorer in Kobe, Japan, a shipment for carriage to Manila and Cebu freight prepaid and in good order and condition. While the vessel is off Okinawa, Japan, a small flame was detected on the acetylene cylinder located in the main deck level. As the crew was trying to extinguish the fire, the acetylene cylinder suddenly exploded sending a flash of flame throughout the accommodation area, thus causing death and severe injuries to the crew and instantly setting fire to the whole superstructure of the vessel. The incedent force the master and the crew to abandon the ship. Thereafter, SS Estern Explorer was found to be

constructive total loss and its voyage was declared abandoned. Several hours later, a tugboat under the control of Fukuda Salvage Co. arrived near the vessel and commenced to tow the vessel for the port of Naha, Japan. After the fire was extinguished, the cargoes which were saved were loaded to another vessel for delivery for their original of port of destination. ESLI charged the consignees several amounts corresponding to additional freight and salvage charges. The charges were all paid by Philippine Home Assurance Corporation (PHAC) under protest for and in behalf of the consignees. PHAC, as subrogee of the consignees, thereafter filed a complaint before the Regional Trial Court of Manila, Branch 39, against ESLI to recover the sum paid under protest on the ground that the same were actually damages directly brought about by the fault, negligence, illegal act and/or breach of contract of ESLI. In its answer, ESLI contended that it exercised the diligence required by law in the handling, custody and carriage of the shipment; that the fire was caused by unforeseen event; that the additional freight charges are due and demandable pursuant to the Bill of Lading, and that salvage charges are properly collectible under Act. No. 2616, known as the Salvage Law. The trial court dismissed the PHACs complaint and ruled in favor of ESLI. The court said that the Supeme Court has ruled in Erlanger and Galinger vs. Swedish East Asiatic Co., Ltd., 34 Phil. 178, that three elements are (1) a marine peril (2) service voluntary rendered when not required as an existing duty or from a special contract and (3) success in whole or in part, or that the service rendered contributed to such success. The court said that the above elements are all present in the instant case. Salvage cgarges may thus be assessed on the cargoes saved from the vessel. As provided for in Section 13 of the Salvage Law, The expenses of salvage, as well as the reward for salvage or assistance shall be a charge on the things salvaged or their value. In Manila Railroad Co. vs. Macondray Co., 37 Phil. 583. It was also held that When a ship and its cargo are saved together, the salvage allowance should be charged against the ship and the cargo in the proportion of their respective values, the same as in the case of general average Thus, the compensation to be paid by the owner of the cargo is in proportion to the value of the vessel and the value of the cargo saved. On appeal to the Court of Appeals, respondent court affirmed the trial courts findings and conclusion; hence, the present petition for review before this Court on the following error, among others: Issue: Whether or not the respondent Court erroneously adopted with approval the Trial Courts conclusion that the expenses or averages incurred in saving the cargo constitute general average? Held:

On the issue whether or not respondent court committed an error in concluding that the expenses incurred in saving the cargo are considered general average, we rule in the affirmative. As a rule, general or gross averages include all damages and expenses which are deliberately caused in order to save vessels, its cargo or both at the same time, from a real and known risk. While the instant case may technically fall within the purview of the said provision, the formalities prescribed under Article 813 and 814 of the Code of Commerce in order to incur the expenses and cause the damage corresponding to gross average were not complied with. Consequently, respondent ESLIs claim for contribution from the consignees of the cargo at the time of the occurrence of the average turns to naught. The Court reversed and set aside the judgment of the respondent court and ordered respondent Eastern Shipping Lines. Inc. to return to petitioner Philippine Home Assurance Corporation the amount it paid under protest in behalf of the consignees. Trans-Asia Shipping Lines, Inc. vs. Court of Appeals 254 SCRA 260 Facts: Plaintiff (herein private respondent Atty. Renato Arroyo) bought a ticket from herein petitioner for the voyage of M/V Asia Thailand Vessel to Cagayan de Oro from Cebu City. Arroyo boarded the vessel in the evening of November 12, 1991 at around 5:30. At that instance, plaintiff noticed that some repair works were being undertaken on the evening of the vessel. The vessel departed at around 11:00 in the evening with only one engine running. After an hour of slow voyage, vessel stopped near Kawit Island and dropped its anchor threat. After an hour of stillness, some passenger demanded that they should be allowed to return to Cebu City for they were no longer willing to continue their voyage to Cagayan de Oro City. The captain acceded to their request and thus the vessel headed back to Cebu City. At Cebu City, the plaintiff together with the other passengers who requested to be brought back to Cebu City was allowed to disembark. Thereafter, the vessel proceeded to Cagayan de Oro City. Plaintiff, the next day boarded the M/V Asia Japan for its voyage to Cagayan de Oro City, likewise a vessel of the defendant. On account of this failure of defendant to transport him to the place pf destination on November 12, 1991, plaintiff filed before the trial court a complaint for damages against the defendant. Issue:

Whether or not the failure of a common carrier to maintain in seaworthy condition its vessel involved in a contract of carriage a breach of its duty. Held: Undoubtedly, there was, between the petitioner and private respondent a contract of carriage. Under Article 1733 of the Civil Code, the petitioner was bound to observed extraordinary diligence in ensuring the safety of the private respondent. That meant that the petitioner was pursuant to the Article 1755 off the said Code, bound to carry the private respondent safely as far as human care and foresight could provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances. In this case, the Supreme Court is in full accord with the Court of Appeals that the petitioner failed or discharged this obligation. Before commencing the contact of voyage, the petitioner undertook some repairs on the cylinder head of one of the vessels engines. But even before it could finish this repairs it allowed the vessel to leave the port of origin on only one functioning engine, instead of two. Moreover, even the lone functioning engine was not in perfect condition at sometime after it had run its course, in conked out. Which cause the vessel to stop and remain adrift at sea, thus in order to prevent the ship from capsizing, it had to drop anchor. Plainly, the vessel was unseaworthy even before the voyage begun. For the vessel to be seaworthy, it must be adequately equipped for the voyage and manned with the sufficient number of competent officers and crew. The Failure of the common carrier to maintain in seaworthy condition its vessel involved in a contract of carriage is a clear breach of its duty prescribed in Article 1755 of the Civil Code.

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