Article 1744 (Agreement as to vigilance over goods less than extraordinary

diligence)
A stipulation between the common carrier and the shipper or owner that the
former shall only observe vigilance over the goods less than extraordinary
diligence is valid PROVIDED:
(1) In writing and signed by the shipper or owner (Note: One of the
exceptions to the general rule that oral contract is binding);
(2) Supported by a valuable consideration other than the service
rendered by the common carrier; and
(3) Reasonable, just and not contrary to public policy
1. In writing and signed by the shipper or owner
This is one of the exceptions to the general rule that oral contract is binding
2. Supported by a valuable consideration other than the service
rendered by the common carrier
Example: Discount/reduction in the freightage
Question: How about if the valuable consideration is that the common carrier
will bear the expenses for the stevedoring and transport of the goods from
destination to the place of the consignee and in exchange to that, the
common carrier will only observe less than extraordinary diligence in the
vigilance over the goods is it allowed under Article 1744?
Answer: YES. Article 1744 provides Supported by a valuable consideration
other than the service rendered by the common carrier. The stevedoring
and arrastre operation is not among those services rendered by the common
carrier
3. Reasonable, just and not contrary to public policy
Question: Can it be stipulated under Article 1744 that the degree of diligence
is less than ordinary diligence?
NO. Article 1745 (4) provides, it is unreasonable, unjust and contrary to public
policy when common carrier exercise a degree of diligence less than ordinary
diligence (i.e., less than that of a good father of a family, or of a man of
ordinary prudence) in the vigilance over the good. Hence, being against public
policy, such agreement is VOID
Question: In determining whether the agreement as to whether the agreement
between common carrier and shipper/consignee limiting degree of diligence to
less than extraordinary diligence is reasonable, just and not against public
policy what are things that you should consider?
Answer: Consider Article 1745 referring to void stipulations for being
unreasonable, unjust or against public policy, Article 1746 referring to refusal of
common carrier to transport the goods unless the shipper agrees limited liability
of the common carrier, and Article and 1751 referring to situation that the
common carrier has no competitor in the transportation of goods, which
situation is taken advantage of by the common carrier in wresting the consent
of the shipper to agree to limited liability of the common carrier

Question: If the common carrier and the shipper validly entered into
agreement that the former shall observe only ordinary diligence the question
is, if the goods were damaged/loss would there be presumption of
fault/negligence under Article 1735 against the common carrier?
Answer (Opinion): NO. Article 1735 provides that in case the goods are
damaged/loss not due to any of the five (5) instances under Article 1734, then
the common carrier presumed at fault/negligence unless it proves that it
observed extraordinary diligence in the vigilance over the goods. Because under
Article 1735, the extraordinary duty of the common carrier to observed
extraordinary diligence in the vigilance over the goods, then the common
carrier is presumed at fault/negligence in case the goods are damaged/loss not
due to any of the five (5) instances under Article 1734. Hence, by logical
deduction, if the common carrier is only to observe ordinary diligence instead of
extraordinary diligence in the vigilance over the goods, then the presumption of
fault/negligence against the common carrier in case goods are damaged/loss
does not apply.
4. Supported by a valuable consideration other than the service rendered by
the common carrier
Examples: Lesser freightage, discounts. But not on service previously rendered
by common carrier
(a) Loadstar Shipping Co. vs. Court of Appeals, GR 131621, September
28, 1999 (p. 68)
There are three (3) kinds of stipulations/agreements have often been
made in a bill of lading.
(1) FIRST: Exempting the common carrier from any and all liability for
damage/loss caused by its own negligence
(2) SECOND: Unqualified limitation of the liability for damages of the
common carrier to an agreed limited/lesser liability (viz., there is
agreement as to limitation of the liability for damages of the common
carrier and there is no qualification that the limited/lesser liability does
not apply unless the shipper declares a higher value of the goods)
(3) THIRD: Qualified limitation of the liability for damages of the common
carrier to an agreed limited/lesser liability (e.g., Article 1749: A
stipulation that the common carrier's liability is limited to the value of
the goods as written on the B/L UNLESS: The shipper or owner of
the goods declares a greater value- is binding)
HERE: The FIRST and SECOND stipulations are VOID as being contrary to
public policy WHILE: The THIRD is valid

Article 1745 (Stipulations that are VOID being unreasonable, unjust and
contrary to public policy)
Any of the following or similar stipulations are void for being unreasonable,
unjust and contrary to public policy:

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(1) Stipulation that the goods are transported at the risk of the owner or
shipper
(2) Stipulation that the common carrier will not be liable for any
damage/loss of the goods
(3) Stipulation that the common carrier need not observe any diligence in
the custody/vigilance of the goods
(4) Stipulation that the common carrier shall exercise a degree of diligence
less than ordinary diligence (i.e., good father of a family, or of a man of
ordinary prudence/diligence) in the vigilance over the goods
(5) Stipulation that the common carrier is not responsible for the acts or
omission of its employees
(6) Stipulation that the common carrier's liability is dispensed/limited for acts
of thieves/robbers who do NOT ACT with grave or irresistible threat,
force or violence
(7) Stipulation that the common carrier is not liable for damage/loss of the
goods because of defective condition of its vehicle/ship/airplane or
other equipment used in the contract of carriage
1. Stipulation that the goods are transported at the risk of the owner or
shipper
Loadstar Shipping Co. vs. Court of Appeals, GR 131621, September 28,
1999 (p. 68)
Facts: Common carrier received goods for transport. Along the voyage, the
vessel sank along with its cargoes. In the B/L, is it stipulated that the goods are
to be transported at owners risk.
Issue: Is the stipulation valid?
Held: NO. Article 1745 (1) provides Stipulation that the goods are transported
at the risk of the owner or shipper is void for being unreasonable, unjust
and contrary to public policy
IN THIS CASE: The Supreme Court also ruled that that Loadstar is not a private
carrier but a common carrier notwithstanding that it has no CPC; it does not
have regular schedule transport goods, it does not have fixed route, and the
vessel was hired by only one shipper for a special cargo ON GROUND THAT:
It is not necessary that the carrier be issued CPC, and this character as common
carrier is not altered by the fact that the carriage of the goods was periodic,
occasional, episodic or unscheduled (so long as it transports goods FOR ALL
who opt to avail themselves of its transportation service without
discrimination such that whenever there is passenger/cargo to transport, it
makes itself available). ALSO: Article 1732 does not distinguish a common
carrier offering transportation service on a regular or scheduled basis,
occasional, episodic or unscheduled basis, neither Article 1732 distinguishes a
common carrier offering its services to the "general public" or offers services
only from a narrow segment of the general population

2. Stipulation that the common carrier's liability is dispensed/limited for acts of

thieves/robbers who do NOTACT with grave or irresistible threat,
violence or force
2.1. Pedro De Guzman vs. Court of Appeals, GR No. L-47822, December
12, 1988 (p. 71)
Principles: Force majeure exempts common carrier from liability
provided the robbers/hijackers acted with grave or irresistible threat,
violence or force
Facts: The truck (common carrier) was hijacked by armed men and took
the truck including its cargo. Shipper filed civil case against the common
carrier. Pending the civil case, the owner of the common carrier filed
criminal action against the robbers, where they were held guilty beyond
reasonable doubt and in fact, the Judgment of Conviction even ruled that
the robbers acted with irresistible force.
(a) Issue: Is the act by armed men deemed as force majeure?
Held: YES. Because the robbers acted with grave or irresistible
threat, violence or force as this in fact even ruled by the RTC in
criminal action finding the robbers guilty beyond reasonable doubt
(b) Issue: Is force majeure included under Article 1734 where the
common carrier is exempt from liability?
Held: NO. Exemptions from liability of common carrier under Article
1734 is a closed list that no instances even force majeure
included under Article 1734 other than those five (5) instances
enumerated therein
(c) Issue: If force majeure is not included under Article 1734, what is the
adverse legal consequence against the common carrier?
Held: Apply Article 1735, where it provides damage/loss of goods not
caused under the any of the five (5) instances under Article 1734 shall
produce presumption that common carrier is presumed at
fault/negligence
(d) Issue: If the common carrier is presumed at fault/negligence even if
there is force majeure, the question is, what is then the duty of
common carrier under Article 1735 in order to free itself from liability?
Held: Common carrier should prove that while it is true that it is
presumed at fault/negligent, nevertheless, it proved that it
exercised extraordinary diligence in the vigilance over the goods
(e) Issue: In the case at bar, can the common carrier faithfully comply
with its obligation to observe extraordinary diligence in the
vigilance over the goods?
Held: NO. How can the common carrier comply with its duty to
observe extraordinary diligence when force majeure prevents it to
do so due to hijacking/robbery who acted with grave or irresistible
threat, violence or force committed by the robbers?

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2.2.

(f) Issue: If the common carrier is presumed at fault/negligent

despite the existence of force majeure, what need then to be proven
by the common carrier in order to free itself from liability?
Held: The common carrier must prove that the hijacking/robbery
constituting force majeure acted with grave or irresistible threat,
force or violence
Bascos vs. Court of Appeals, GR 101089, April 7, 1993 (p. 75)
Facts: CIPTRADE (it is not a common carrier but merely a contractor)
undertook to transport the goods of the JIBFAIR. CIPTRADE (being not a
common carrier) subcontracted BASCOS (common carrier) to transport the
goods of JIBFAIR. BASCOS failed to deliver the goods. CIPTRADE paid
JIBFAIR because of their contract that CIPTRADE will pay JIBFAIR in case of
theft, hijacking/robbery, and non-delivery of the goods. Now, CIPTRADE
filed civil action against BASCOS for breach of contract of carriage.
BASCOS in attempt to be free from liability, alleged that the cargo truck
was hijacked along the way. Pending the civil case, BASCOS filed
criminal case for robbery against the accused, but the criminal court has
not yet reached final Judgment on the criminal case.
(a) Issue: If the common carrier proves hijacking/robbery, would there still
be presumption of fault/negligence against it?
Held: YES. Article 1735 presumes that the common carrier is at
fault/negligent when the damage/loss of the goods is not among those
five (5) instances under Article 1734, and force majeure is not among
those said five (5) instances
(b) Issue: In hijacking/robbery, even if the common carrier is presumed at
fault/negligent, what must the common carrier prove in order to
exempt itself from liability in case of robbery/hijacking?
Held: The common carrier must prove force majeure such that the
act of the hijackers/robbers is grave or irresistible threat, force, or
violence
(c) Issue: The owner of the BASCOS common carrier testified on his own
Affidavit about hijacking/robbery, however, his Affidavit is based on
what has been told her by his truck helper hence, hearsay. When
such Affidavit of the owner of BASCOS common carrier was formally
offered in evidence in court, the shipper did not object hence, it was
admitted in evidence. But the question is, did such Affidavit of the
owner of BASCOS common carrier proved that the act of the hijackers
was grave or irresistible threat/force/violence?
Held: NO. There is stark difference between admitted evidence and its
probative evidentiary value, and in replete jurisprudential laws,
hearsay evidence though admitted in evidence is wanting of
evidentiary value. What should have been done by the common carrier
is present its truck helper who has personal knowledge about the

hijacking that the act of the hijackers is grave/irresistible threat,

force/violence
Article 1746 (Shipper can annul agreement if he refuses to agree with
common carrier limiting its liability)
An agreement limiting the common carrier's liability may be
(extrajudicially) annulled by the shipper or owner- if the common carrier
refused to carry the good sunless the former agreed to such limited
liability
1. Article 1746 explained
HERE: The contract of carriage limiting common carriers liability is already
perfected, the reason why Article 1746 says may be annulled by shipper
(i.e., valid until annulled) BUT: The shipper/owner of the goods was
constrained to agree to such limitation of liability because the common carrier
refused to carry the goods unless the shipper/owner of the goods agrees to
such limited liability
Question: What is the reason behind Article 1746 that renders the contract of
carriage voidable?
Answer: The common carrier imposed undue influence over the shipper or
owner of the goods and under Article 1330 NCC: A contract where consent is
given through mistake, violence, intimidation, undue influence, or fraud is
voidable. Also under Article 1390 (2): Contracts are voidable even though no
damage to the contracting parties when the consent is vitiated by mistake,
violence, intimidation, undue influence or fraud
Question: Who can annul the contract of carriage?
Answer: This shipper/owner of the goods (consignee) alone and not by the
common carrier
Question: The shipper/owner in annulling the contract of carriage, does it
require court intervention?
Answer: NO. Generally, when the contract is annullable/voidable, a party
cannot avoid the contract unless he goes to court for the declaration of the
contract as voidable. Article 1746 is the exception to the general rule that the
shipper/owner to unilaterally annul the contract of carriage even without
court intervention
Question: Article 1746 provides, An agreement limiting the common carrier's
liability may be (extrajudicially) annulled by the shipper or owner - if the
common carrier refused to carry the goods unless the former agreed to such
limitation of liability now, the question is, how would you then reconcile
Article 1746 with Article 1744 where the latter allows limitation of liability of the
common carrier?
Answer: Article 1746 simply means that the contract of carriage is voidable
when it does not comply with the requisites under Article 1744

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Article 1747 (Agreement common carriers limiting liability rendered

ineffective in case of delay or change of stipulated/usual route)
Even if there is (valid) agreement limiting common carriers liability, this
agreement cannot be availed of by the common carrier in case the goods
damaged/loss WHEN:
(a) The common carrier delayed in transporting the goods - without just
cause; or
(b) The common carrier changed the agreed route, or if no agreed route but
the common carrier changed its usual route without just cause
1. The common carrier delayed in transporting the goods - without just
cause
Saludo, Jr. vs. Court of Appeals, GR 95536, March 23, 1992 (pp. 78-79)
If no agreement as to the time of arrival of goods, the goods must be
delivered within reasonable time; but when there is express agreement as
to the time of arrival of the goods, then common carrier is liable for delay if
the goods did not arrive on such agreed state regardless of the reason of such
delay (hence, even if the reason for the delay was due to fortuitous event or
any reason, will not excuse the common carrier for liability for damages)
Hypothetical question: Suppose there is agreement as to specific date of
arrival and the goods is delayed in its arrival, but nevertheless no damage
on the goods the question is, is the common carrier still liable for
damages?
Answer: YES. Not for damage/loss of goods as there is none, but under
Article 1170 NCC: Those who in the performance of their obligations are
guilty of fraud, negligence, or delay, and those who in any manner
contravene the tenor thereof, are liable for damages
Another issue in the case: Customary that before the common carrier issues
B/L, the goods must be delivered to it by the shipper. Suppose the common
carrier issued B/Leven if it did not yet received the goods for transport is there
a valid contract of carriage?
Held: YES. Once the common carrier issued B/L, it is presumed that it received
the goods for transportation. There is no law that requires that the receipt of
goods and issuance of B/L must be simultaneous or that the goods be received
first before issuance of B/L. However, this presumption of receipt of goods is
only a presumption rebuttable by contrary evidence, such that the common
carrier can prove that while it is true that it issued B/L ahead of its receipt of the
goods for transport, nevertheless, the shipper did not really deliver the goods to
it hence, there is no contract of carriage

1. Strike
Article 1748 does not distinguish whether such strike is legal/illegal

Article 1749 (Qualified liability of common carrier: Agreement limiting liability

only up to value of goods unless shipper declare higher value, is valid)
A stipulation that the common carrier's liability is limited to the value of the
goods as written on the B/L UNLESS: The shipper or owner of the goods
declares a greater value- is binding
Note: Article 1749 is an agreement known as qualified limited liability of
common carrier which is valid. However, an agreement that is unqualified
limited liability of common carrier is void for being against public policy
(Loadstar Shipping Co. vs. Court of Appeals, GR 131621, September 28, 1999)

Article 1750 (Agreement fixing liability for damage/loss of goods is valid

provided such agreement is reasonable, just, fairly and freely agreed upon)
A contract of carriage fixing the sum (i.e., not value of the goods as written
on the B/L under Article 1749) that may be recovered by the owner or shipper
for the damage/loss is valid PROVIDED: The fixed sum of liability is
reasonable and just under the circumstances, and has been fairly and
freely agreed upon
1. Article 1749 and 1750 compared as to amount of common carriers
agreed limited liability for damage/loss of goods
Article 1749 is about agreement limiting the common carriers liability as to the
value of the goods damaged/loss, while Article 1750 is about agreement
limiting the common carriers liability not based on the value of the goods as
written in the B/L but based on the agreed fixed amount
2. Belgian Overseas Chartering and Shipping vs. Philippine First
Insurance Company, GR 143133, June 5, 2002 (p. 80)
Facts: 242 coils (goods) were received by common carrier from Germany to be
transported to Manila port. In the B/L, is stipulated that the liability of the
common carrier is limited to US$500 per package. Annotated in the B/L is
about the statements in the Letter of Credit (L/C) stating the value of the
goods per metric ton which value is way higher than the agreed US$500
per package. When the goods reached Manila port, four coils were damaged.
The common carrier invoked COGSA Section 4 (5) which provides: Carrier shall
not be liable beyond US$500 per package unless the shipper declares
the value of the goods written on the B/L. However, the shipper invoked
Article 1749 NCC which provides, A stipulation is binding when the common
carrier's liability is limited to the value of the goods as written on the B/L
unless the shipper or owner declares a greater value
Issue: In contract of carriage of goods, which law that primarily governs the
rights and obligations of common carriers?

Article 1748 (Agreement limiting liability for delay in case of strike or riot, is
valid)
An agreement limiting the common carrier's liability for delay on account
of strikes or riots is valid.

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Held: Civil Code. Article 1766 NCC provides, In all matters not regulated by
this Code (NCC), the rights and obligations of common carriers shall be
governed by the Code of Commerce and by special laws (e.g., COGSA).
Hence, Code of Commerce and by special laws (e.g., COGSA) are only
suppletory in the absence of provision of the NCC
Issue: In the case at bar, what governs the contract of carriage of the parties
is it Article 1749 NCC or special law particularly COGSA Section 4 (5)?
Held: COGSA Section 4 (5). Reason: Article 1749 NCC does not apply because
there is no provision therein about limiting the liability of common carrier
per package instead, what Article 1749 provides is the limitation of
liability of common carrier as to value of the goods written on the B/L (i.e.,
not limitation of liability per package). Now, under COGSA Section 4 (5), it is
specifically provided therein that the common carrier can limit its liability as
written in the B/L only up to US$500 per package. Hence, applying Article
1766 NCC, In all matters not regulated by this Code (NCC), the rights and
obligations of common carriers shall be governed by the Code of Commerce
and by special laws (e.g., COGSA). ALSO: Specific provisions of law governs
over general provisions of law
Issue: COGSA Section 4 (5) which provides: Carrier shall not be liable
beyond US$500 per package unless the shipper declares the value of the
goods written on the B/L. Shipper alleged, granting that COGSA Section 4 (5)
applies, the liability of the common carrier is not limited to US$500 per
package because in the B/L, therein annotated about the statements in the
Letter of Credit (L/C) stating that the value of the goods per metric ton which
value of the goods is wayhigher than US$500 per package,which by such
annotationof L/C on the B/L, in effect the value of the goods per metric is
technically declared in the B/L hence, limited liability to US500 per package
does not apply. The question, is the Shipper correct?
Held: NO. Such annotation of the L/C on the B/L stating the value of the
goods per metric ton is not a declaration of the value of goods in the
B/L required under COGSA Section 4 (5). The annotation of L/C on the B/L was
made only for the convenience of the shipper and the bank processing
the L/C (the bank being the consignee and the shipper being merely the notify
party such that the latter cannot withdraw the goods he imported without
paying first the bank that granted the L/C, and afterwhich, the bank to
surrender possession of the B/L to the notify party). In other words, the L/C
indicating the value of the goods even if annotated on the B/L is separate and
distinct from the B/L and has nothing to do between the contract of carriage
between the common carrier and the shipper
Issue: The B/L provides that the liability of the common carrier is limited only
up to US$500 per package. Suppose, the 242 coils were contained in 2
containers, should such 2 containers be deemed as 2 packages so that
the liability of the common carrier would only be US$1,000?

Held: NO. Per package is not to be construed by package or by container

or by crate or similar denomination instead, it is to be construed per unit
or per good. Hence, there being 4 coils damaged, the common carrier is
liable toUS$2000 (i.e., US$500 x 4 units)
Note: COGSA refers to the rights and responsibilities between shippers of
goods and the shipowners (i.e., carrier) regarding shipments/carriage of goods
by sea from foreign ports to Philippine ports (i.e., international carriage of
goods) so that COGSA does not apply the shipments/carriage of goods from
Philippine port to foreign port as what applies is the law of destination
under Article 1753, neither COGSA applies to contract of carriage transporting
goods domestically within the Philippines even if the goods are carried
through the sea (Note also that the law says carriage by sea and not by
river)
3. Summa Insurance Corp. vs. Court of Appeals, GR No. 84680, February
5, 1996 (p. 84)
Facts: Vessel (common carrier) arrived in Manila port carrying goods consigned
to Consignee. The goods were insured by Consignee with Insurer. All the goods
were unloaded and discharged from the vessel to Arrastre Operator (exclusive
arrastre operator in Manila port), where the common carrier issued a receipt
called good order receipt to the Arrastre Operator who signed the same
without objection/protest. When the goods reached the Consignee, some are
missing/loss. The Insurer then paid the Consignee the value of the goods loss
pursuant to the insurance agreement (hence, the Insurer now as subrogee
acquiring the right over the Consignee in regard to the missing/loss goods).The
Insurer then filed civil action against the common carrier and the Arrastre
Operator for damages due to the missing/loss goods.
Issue: Who lost the goods, is it the common carrier or the Arrastre Operator?
Held: Arrastre Operator in view of the good order receipt it gave to the
Arrastre Operator who accepted and signed it without objection/protest. Hence,
it shows that when the Arrastre Operator received the good from the common
carrier, all the goods were complete and in good order
Facts: The Arrastre Operator entered into Management Contract with the
Bureau of Customs where it is stipulated, The Arrastre Operator shall handle all
merchandise (goods) in port at its own expense x xx. That the Arrastre
Operator, being independent contractor, shall liable to the steamship,
consignee, consignor or other interested parties for the loss, damage or nondelivery of cargoes to the extent of the actual invoice value of each package
which in no case shall exceed P3,500 for each package UNLESS the
value of the goods is otherwise specified or manifested or
communicated in writing together with the invoice value and
supported by a certified packing list to the Arrastre Operator by the
interested party before the discharge of the goods, x xx. This particular
provision of the Management Contract is incorporated/included in the gate

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pass and delivery receipt issued by the Arrastre Operator to the

Consignee at the time the good order receipt accepted and signed
by the Arrastre Operator. This gate pass and delivery receipt therefore is
now in the hand of the Consignee which must be presented by the Consignee
before the Arrastre Operator delivers the goods to the Consignee
Issue: Does this Management Contract between the Arrastre Operator and the
Bureau of Customs limiting the liability of the Arrastre Operator to P3,500 per
package binds the Consignee even if the latter is not a signatory thereof?
Held: YES. The Management Contract Bureau of Customs and the Arrastre
Operator partakes the nature of stipulation pour autrui where the
beneficiary thereof is the Consignee.
Issue: In stipulation pour autrui, isnt that under Article 1133 2nd Paragraph
provides that the beneficiary in the contract (in this case the Management
Contract between Bureau of Customs and Arrastre Operator, and the
beneficiary is the Consignee), there must be acceptance by the beneficiary (in
this case the Consignee) before the beneficiary-Consignee is bound thereby?
Now the question is, was there acceptance by the Consignee?
Held: YES. Now, what makes the Consignee bound by such Management
Contract is when the gate pass and delivery receipt which incorporated therein
the provision of the Management Contract was given by the Arrastre Operator
to the Consignee and the latter accepted it, the consignee thereby consents to
the stipulation pour autrui AND ALSO: Such acceptance by the Consignee on
the stipulation autrui is all the more manifested when the Consignee presented
the gate pass and delivery receipt to the Arrastre Operator for the delivery of
the goods to him
Issue: If the Management Contract between the Arrastre Operator and the
Bureau of Customs binds the Consignee does it also binds the Insurer?
Held: YES. Because the Insurer after having paid the Consignee of the value of
the goods loss, there is already subrogation of the rights from the Consignee (as
subrogor) to the Insurer (subrogee) - such that the Consignee is the successorin-interest of the Insurer, viz., the Insurer stepped into the shoes of the
Consignee
Issue: What should have done by the Consignee in order not to be bound by
the limitation of liability embodied in the Management Contract which partakes
the nature of stipulation pour autrui?
Held: At the time the Consignee received the gate pass and delivery receipt
where incorporated therein the provision of the Management Contract
particularly the limited liability in the amount of P3,500 per package partaking
the nature of stipulation pour autrui- the Consignee should have declared to the
Arrastre Operator the value of the goods
Issue: The Arrastre Operator, the moment the goods were discharged to it by
the common carrier, what degree of diligence must it observe in the vigilance
over the goods?

Held: Extraordinary diligence same degree as that of the common carrier.

Why? Arrastre Operator is also deemed as common carrier
4. Everett Steamship Corp. vs. Hernandez Trading Co., GR No. 122494,
October 8, 1998 (p. 81)
Principle: By combining Article 1749 and 1750, they therefore allows the
common carrier to limit is liability to a fixed amount for damage/loss of goods
(which in the case at bar Y100,000) unless the shipper declares in the
B/L a higher value of the goods
Facts: The common carrier received goods contained in 4 crates from Japan to
be transported to Manila. It is stipulated in the B/L that the common
carriers liability is limited only up to Y100,000 for damage/loss of goods unless shipper declares in the B/L the higher value of the goods
(concomitantly for payment of shipper to pay a higher freightage). Now, the
shipper did not declare in the B/L the actual/higher value of the goods
contained in 4 crates, instead he declared in the B/L a lower value of the goods
(presumably to pay less freightage). When the goods reached Manila, it is
discovered that one (1) crate is missing. The shipper demanded from common
carrier payment of the actual value of the goods which is way more than
Y100,000 however, the common carrier countered that its liability is only up to
Y100,000 as declared in the B/L. The shipper invoked Article 1750, A contract
(of carriage) fixing the sum (i.e., not value of the goods) that may be
recovered by the owner or shipper for the damage/loss of the goods is valid
PROVIDED: It is reasonable and just under the circumstances, and has been
fairly and freely agreed upon. Now, the shipper therefore alleged,
considering that the limited liability of common carrier to only Y100,000 is way
too small compared to the actual value of the lost goods, applying Article
1750, such agreement on limited liability to only Y100,000 is unjust and
unreasonable
Issue: Is it allowed for the common carrier to fixed its liability (which in the
case at bar Y100,000) - unless shipper declares in the B/L the higher value
of the goods?
Held: YES. Article 1749 provides, A stipulation that the common carrier's
liability is limited to the value of the goods as written on the B/L
UNLESS: The shipper or owner of the goods declares a greater value- is
binding. While Article 1750 provides, A contract of carriage fixing the sum
(i.e., in this case Y100,000) that may be recovered by the owner or shipper for
the damage/loss is valid PROVIDED: The fixed sum of liability is reasonable
and just under the circumstances, and has been fairly and freely agreed
upon. By combining Article 1749 and 1750, they therefore allows the common
carrier to limit is liability to a fixed amount for damage/loss of goods (which in
the case at bar Y100,000) unless the shipper declares in the B/L a
higher value of the goods.
Issue: Is the Y100,000 limited liability just and reasonable?

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Held: YES. The B/L provides that the common carriers liability is limited
only up to Y100,000 for damage/loss of goods - unless shipper declares in
the B/L the higher value of the goods (i.e., declaration of higher value of the
goods carries with it payment by the shipper of a higher freightage). Now, such
stipulation in the B/L limiting liability to Y100,000 is fair and reasonable and
freely agreed upon by the shipper is IMPLIED when in the B/L, the
shipper was given the option to declare instead the higher value of the
goods, but the shipper did not and instead declared in the B/L a lesser
value of the goods in order to pay lesser freightage - hence, the shipper
himself is to be blamed for not declaring higher value of the goods
Issue: The shipper alleged that the Y100,000 limited liability of the common
carrier is written in the B/L in small letters such that he could not have
freely and fairly understood such provision. Is the shipper correct?
Held: NO. Contract of Adhesion is not invalid per se. The party adhering
to Contract of Adhesion is free to accept or reject. When the shipper did not
understand the provision for a reason (e.g., written in small letters), it is his
responsibility to ensure full comprehension of the provision in the B/L and not
upon the common carrier (viz., if the shipper was in doubt of such limited
liability provision for being written in small letters, then he should demand for a
clearer letters, otherwise, he is free to reject the B/L and not continue with the
contract of carriage)
Issue: It is a jurisprudential rule that in case of doubtful provision in the
contract of adhesion such as B/L, such doubt will be construed against the
common carrier being the one who prepared the ready-made B/L. Is this
jurisprudential rule apply in favor of the shipper in this case?
Held: NO. The shipper is a seasoned importer, hence, he cannot feign
ignorance about the provision in the contract of carriage he entered into
embodied in the B/L limiting the liability of the common carrier to Y100,000
Note: In the same case, it was also held by the SC that even if the contract of
adhesion(in this case B/L) is not signed by the party adhering, but the moment
he accepts it, implies his consent and therefore the perfection of the contract

limiting liability. Now, under Article 1330 (also Article 1390 [2]): A contract
where consent is given through mistake, violence, intimidation, undue
influence, or fraud is voidable
Article 1752 (Common carrier still presumed negligent even if its liability is
limited)
Even when there is an agreement limiting the liability of the common
carrier in the vigilance over the goods, but in case of damage/loss - the
common carrier is still presumed at fault/negligent
1. What is this agreement limiting the liability of the common carrier in the
vigilance over the goods all about under Article 1752?
It refers to limited liability for damages of the common carrier in case
goods are damaged/loss under Article 1749 and Article 1750. It does not
refer to reducing the degree of vigilance of common carrier from
extraordinary diligence to that of ordinary diligence under Article
1744.Because if the degree of vigilance over the good is reduced to
merely ordinary diligence under Article 1744, then the common carrier
degree of vigilance is akin to that of the vigilance of a private carrier, in
which case, being a private carrier, the presumption of fault/negligence
does not apply in case goods are damaged/loss

Article 1753 (Law of destination)

The law of the country (i.e., law of destination) to which the goods are to be
transported- governs the liability of the common carrier for their
damage/loss
1. Conflict rule
Remember that Article 1753 only applies to international shipping (and not to
domestic chipping). Now, when goods already began to be transported but
did not reach its destination for any reason, still the law of destination
shall govern the liability of common carrier in case of damage/loss of
goods
HOWEVER:
(a) If the goods never transported, it is the law of the country of origin; or
(b) If the shipper exercised his right of stoppage in transitu, then the law of
the new destination shall govern
2. Eastern Shipping Lines vs. IAC, GR L-69044, May 29, 1987 (p. 90)
Facts: Common carrier received good from Japan to be transported in Manila
Port. While on voyage, the common carrier caught fire and sank
Issue: Which law shall govern in determining the liability of the common carrier
Philippine law or Japan law?
Held: Philippine law. Considering that the goods began to be transported from
Japan to Manila port, then pursuant to Article 1753, Philippine law shall govern

Article 1751 (Lack of competition is taken into consideration in determining

whether agreed limit of liability is reasonable, just or in consonance with public
policy)
If a common carrier has no competitor along the line or route, or no
competitor on part of such line/route, to which the contract refers such
circumstance shall be taken into consideration in determining the issue of
whether or not a stipulation limiting the common carrier's liability is
reasonable, just and in consonance with public policy
1. Reason for Article 1751
Because of lack of competition, the common carrier may impose undue
influence upon the shipper- compelling the latter to agree to stipulation

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being the port of destination (viz., law of destination shall apply; primary law is
NCC, and suppletory are special laws)

We have finished the subject about the duties of common carrier insofar as
carriage goods are concerned. At present, the subject is about duties of
common carrier insofar as carriage of passenger is concerned

Article 1754 (Rules as to passengers baggage)

As to baggage of passenger not in his personal custody or not in the
custody of passengers own employee, Articles 1733-1753 shall apply. As
to other baggage (e.g., in custody of passenger/his own employee), the
liability of the common carrier shall be similar to that of the hotel-keepers under
Article 1998 and Articles 2000-2003 NCC
1. Rules on liability of common carrier as to passengers BAGGAGE
(a) As to baggage of passenger not in his personal custody or not in the
custody of passengers own employee(e.g., the baggage is placed in
the compartment of common carrier)
Article 1733 to 1753 shall govern (particularly the observance of common
carrier of extraordinary diligence in the vigilance over the goods, and also
the presumption of fault/negligence in case goods are damaged/loss)
(1) Non-payment of passenger of baggage fare
Immaterial/important in the observance obligation of common carrier
under the NCC (Robles vs. CA, 44 OG 2268). In the case of Sarkies
Tours Philippines, Inc. vs. Court of Appeals (supra), the failure of
the passenger in paying freight charge of his baggage is the common
carriers own lookout
(b) If baggage in personal custody of passenger or of his employee
Articles 1998 and 2000 to 2003 shall apply
(1) Article 1998: Common carrier is responsible provided (a) notice is
given by passenger to common carrier (about the baggage under
personal custody of the passenger) and (b) passenger observed
precautions as advised by the common carrier relative to the care and
vigilance over his goods
(2) Article 2000: Common carrier is liable for loss caused by (a)
employee of common carrier, as well as (b) strangers except force
majeure (e.g., robbery)
(a) Article 2001: Act of thief/robber who entered the common carrier is
not force majeure unless with use of arms or irresistible force
(b) Article 2002: Common carrier is not liable if the loss is caused by
(a) co-passenger, or (b) character of the goods
(3) Article 2003: Common carrier cannot free itself from or mitigate its
liability under Articles 1998-2001 by posting notices or by stipulation
to the effect that it is not liable for the goods/baggage of passengers
under his personal custody this is void

Article 1755 (Degree of diligence required in contract of carriage of

passengers)
A common carrier is bound to carry the passengers safely as far as human
care and foresight can provide using the utmost diligence of very
cautious persons, with a due regard for ALL the circumstances
1. Considered passenger hence, the existence of contract of carriage
(a) Even if passenger has no money to pay his fare
(b) Even if passenger has not yet paid his fare
(c) Even if passenger did not yet completely boarded the conveyance - so
long as he stepped on the platform or running board
Dangwa Transportation Co. vs. Court of Appeals, 202 SCRA 574 (p.
93)
While the bus just started to run and was still at slow motion, the victim
by stepped on the platform, is already considered a passenger
Question: What is the importance of determining whether or not a person
is a passenger when accident happened (i.e., existence of contract of
carriage)?
Answer: Because under Article 1756 NCC, when a person is a passenger
when accident happened, the common carrier is presumed at
fault/negligent
(d) Singson vs. Court of Appeals, GR No. 119995, November 18, 1997
(p. 107)
Principle: Round trip ticket (though open-dated) was itself a complete
written contract of carriage between common carrier and passenger
Facts: The passenger bought from common carrier (airline) one opendated round trip tickets at its Metro Manila ticket office, i.e., a round trip
from Manila to Los Angeles and vice versa. The ticket consisted of six
(6) flight coupons consisting of flight itineraries i.e., flight coupon
no. 1 (Manila to Hongkong), flight coupon no. 2 (Hongkong to San
Francisco), flight coupon no. 3(San Francisco to Los Angeles), flight coupon
no. 4 (Los Angeles back to San Francisco), flight coupon no. 5 (San Francisco
back to Hongkong), and, finally, flight coupon no. 6 (Hongkong back to
Manila). The flight procedure was that at the start of each of the six
(6) flight itineraries, a corresponding flight coupon would be
removed from the six (6) open dated flight tickets so that at the end
of the trip (i.e., Hongkong to Manila) no more flight ticket would be
left

CHAPTER 3
Safety of PASSENGERS

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While the passenger was in Los Angeles, supposedly, the flight tickets
that remain should be flight ticket no. 4 (Los Angeles to San Francisco),
5 (San Francisco to Hongkong) and 6 (from Hongkong to Manila). However,
when the passenger desired to go back to Manila from Los Angeles, he found
out that what remains in his flight tickets were flight no. 3 (San
Francisco to Los Angeles), 4 (Los Angeles back to San Francisco), and 6
(Hongkong back to Manila) such that flight no. 3 (San Francisco to Los
Angeles), it should be flight no. 5 (San Francisco to back to Hongkong).
Because of the discrepancy, the airline refused to take passenger on
his flight from Los Angeles, hence, the passenger was delayed on his
flight from Los Angeles back to San Francisco, then to Hongkong, then finally
Manila - since flight no. 5 (San Francisco to back to Hongkong) was
missing. It shows that when the passenger boarded the airline from San
Francisco to Los Angeles (flight ticket no 3), what should have been
removed by the airline employee from the passengers ticket booklet was
flight ticket no. 3 (from San Francisco to Los Angeles), however, such
airline employee inadvertently removed flight ticket no. 5 (San
Francisco back to Hongkong).
Contention of common carrier: The common carrier in avoiding the
liability regarding the inadvertence of its employee in removing flight ticket
no. 5 instead of flight ticket no. 3, alleged that it is not liable for the
delay of the passenger on his flight because the tickets of the passenger
being an open-dated ticket at the time the passenger intended to go
back to Manila from Los Angeles - so that being open dated, it means
that the passenger is not yet booked for flight and so thereby there is
yet no contract of carriage and as such, no breach of contract of
carriage. In other words, the airline alleged that the passenger was then a
mere chance passenger as his ticket was an open-dated ticket.
Issue: Is there perfected contract of carriage notwithstanding that the
flight tickets of the passenger were all open-dated?
Held: YES. The round trip tickets though open-dated issued by the airline to
the passenger was in itself a complete written contract of carriage (i.e.,
there is consent, consideration and object). In fact, the contract of carriage
was already partially executed as the airline already complied with its
obligation to transport the passenger to his destination (i.e., from Manila
to Hongkong, then to San Francisco, then to Los Angeles) and only the
other half of the contract to transport the passenger back to the
Philippines was left to be executed (Los Angeles to San Francisco, then to
Hongkong, then to Manila). The airline having refused to transport the
passenger from Los Angeles, it therefore breached the contract of
carriage more so that the missing flight ticket no. 5 was due to fault
of its own ticketing employee

2. Still passenger despite not actually riding in the common carrier but still
within premises of common carrier within reasonable time
What is a reasonable time or a reasonable delay for the passenger to
remain in the premises of the common carrier - is to be determined
from all the circumstances (La Mallorca vs. Court of Appeals, 17 SCRA 739;
p. 93)
(a) Aboitiz Shipping Corp. vs. Court of Appeals, GR No. 84458,
November 6, 1989 (p. 94)
Facts: One (1) hour after the passengers of said vessel had
disembarked, the crane (stevedore) that was alongside the vessel started
unloading the cargoes from said vessel. While the crane was being
operated, Viana (victim passenger) who already disembarked from said
vessel, remembering that his cargoes were still loaded in the vessel,
returned to the vessel, and it was while he was pointing to the crew of
the said vessel about the place where his cargoes were loaded that the
crane hit him, he died
Issue: Is Viana still a passenger considering that he already
disembarked from the vessel?
Held: YES. What is a reasonable time or a reasonable delay within this
rule for the Viana to remain in the premises of the vessel - is to be
determined from all the circumstances. In determining whether Viana
still considered as passenger, this reasonable time/reasonable delay
- includes:
(1) Reasonable time for passenger to see after his baggage and
prepare for his departure from the premises of the common carrier. The
contract of carriage is not terminated merely by the fact that the
passenger been carried to his destination and alighted from the
common carrier - if, for example, such person remains in the carrier's
premises to claim his baggage.
(2) Factors such as kind of common carrier (in this case, it was a
passenger vessel), the nature of its business, the customs of the
place, and so forth are to be considered to determine whether the
passenger that remains in the premises is still within reasonable
time. The time per se as to the duration the passenger still within
the premises of common carrier is not the determining rule
instead, those aforementioned factors have to be considered. The
common carrier invokes that the case of La Mallorca and alleged
that the victim therein was deemed still a passenger within the
bus premises because before the victim was ran over by the bus,
it was short a time after the victim alighted from the bus and while in
the case at bar, Viana already alighted from the vessel about an
hour before he was hit by the crane, hence, according to the vessel,
Viana is no longer a passenger when he was hit by the crane. This

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invocation of the vessel as regards the La Mallorca does not apply in

the case at bar because the factual milieu in the La Mallorca case and
the case at bar are different.
In the case at bar, while it is true that one (1) hour already lapsed
from the time Viana alighted from the vessel before he was hit by
the crane - however, by the very nature of common carriers
business as vessel, the passengers are allotted/allowed a longer
period of time to remain within the premises compared to other
common carriers such as bus - on reason that in the vessel, there
are bulk of cargoes and passengers compared to bus where in the
latter, the passengers can leave the premises at much shorter
time compared to passengers of vessel. Consequently, as it is in
fact the usual practice, a vessel passenger will need at least an
hour to leave the premises in order to claim his baggage
compared to a bus passenger who can easily get off the bus and
retrieve his luggage. Verily, in the case at bar, the Viana was still a
passenger at the time when he was hit by the crane because he was in
the process of claiming his cargoes. It was even admitted by
common carrier (defendant Aboitiz) that their standard procedure
(i.e., customs/practice of the place) for the unloading of cargoes shall
start only one hour after the passengers alighted from the
vessel
(b) La Mallorca vs. Court of Appeals, 17 SCRA 739
Facts: The bus stopped along the highway to allow the passengers
(father, mother, children including the child Raquel) to alight. While the
bus still at full stop and the passengers already about 5 meters away
from the bus. While the bus at full stop, the father returned to the bus to
get his bag left inside the bus and while the father was at the running
board awaiting for the conductor to hand him over his bag, the bus
started to run so that the father even had to jump off the bus and it was
at that juncture that Raquel who must be near the bus, was ran over
and killed.
Issue: Are the father and his family (including Raquel) deemed still
passengers?
Held: YES. Based from all the circumstances attending the case, the
presence of the family in the premises the bus was still reasonable (as
in fact the father still awaiting the conductor to hand him over his bag
when accident happened)
Note: Incidentally, the Supreme Court nevertheless ratiocinated, even
granting that they were no longer deemed as passenger hence no
more contract of carriage, nevertheless, the common carrier liable
under Article 2180 NCC in relation with Article 2176 (quasi-delict [no
contractual relation]). Article 2180 (Doctrine of Vicarious Liability): The

obligation imposed by Article 2176 (quasi-delict) is demandable not only

for one's own acts or omissions (operator of common carrier), but also
for those of persons for whom one is responsible (operator
responsible to his employees [driver]). Now under Article 2176 NCC:
Whoever [driver] by act or omission causes damage to another
[Raquel], there being fault or negligence [driver], is liable for damages
(such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict/tort)
Note: In the same case of La Mallorca vs. Court of Appeals, 17 SCRA
739 the Supreme Court cited situations where a person still deemed a
passenger within the premises of the common carrier:
(1) Still a passenger after alighting from the conveyance until he had
reasonable time/opportunity to leave the premises of the common
carrier
(2) Still a passenger, after alighting from a train, walks along the
station platform to exit the premises
(3) Still a passenger, after alighting from a common carrier, and was
proceeding by the usual way to leave the premises of the common
carrier, but before actually exited, is halted by the report that his
brother, a fellow passenger, has been shot inside the premises of the
common carrier, and he in good faith and without intent of engaging in
the difficulty (conflict), returns to rescue his brother. In this case, the
passenger is deemed reasonably and necessarily delayed due to
the supervening event just before he left the premises
(c) Light Rail Transit Authority vs. Marjorie Natividad, GR No. 145804,
February 6, 2003 (p. 93)
Passenger paid his token and entered the LRT Station, and then stood
on the designated platform near the train tracks where passengers are
ought to be while awaiting for the arrival of the train and based from
such circumstances, he is deemed passenger, and hence, contract of
carriage exists
3. Fault/Negligence of common carrier
(a) Negligence per se of common carrier (i.e., no need to prove
negligence)
(1) Violation of traffic rules and regulations when accident happened
(2) The common carrier in improper parking, or overloading of
passengers is in itself negligence not observing utmost diligence of a
very cautious person in the safety of passengers (Calalas vs. Court of
Appeals, GR No. 122039, May 31, 2000)
(3) Failure of common carrier to observe safety measures
Philippine National Railways vs. Court of Appeals, GR No.
157658, October 15, 2007 (p. 94)

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Facts: Victims car stopped for a while before crossing the railroad
track, then proceeded accordingly upon sensing no incoming train.
Unfortunately, while the victims car was crossing the railroad, a PNR
train appeared and collided with the car. At the time of the mishap,
there was neither a signal nor a crossing bar at the intersection to
warn motorists of an approaching train. X x x. No whistle blow from the
train was likewise heard before it finally rammed the car
Held: The failure of the PNR to put a cross bar, or signal light,
flagman or switchman, or semaphore is evidence of negligence
(i.e., negligence per se) - even if there is no law or ordinance
requiring it, because public safety demands that said device or
equipment Pbe installed
(b) Duties of common carrier when at full stop
(1) Dangwa Transportation Co. vs. Court of Appeals, 202 SCRA 574
(p. 93)
Common carrier must be at full stop for a reasonable period of time
to afford passenger the opportunity to board and enter and the
common carrier is liable when injury is caused by its premature start
to run
Facts: While the bus at full stop to alight a passenger, the victim was
on the bus platform in the act of boarding the bus, and while at that
juncture, the bus suddenly accelerated that the victim fell off the
platform, ran over the rear tire of the bus. The driver and conductor
had not noticed the victim was then in the process of boarding the bus
because the victim had not manifested (uttered/signalled) his intent
to board the bus
Issue: Is the common carrier negligent?
Held: YES. While the bus is at full stop, it must remain as such for a
reasonable time to verify whether incoming passengers are
intending to board the bus because once it stops, is in effect
making continuous offer to the public who wants to ride. Here, the
common carrier did observe its duty of utmost diligence of a very
cautious person
(c) When common carrier just started to run and was still at slow running
when passenger boarded is matter of common experience of which
driver must be aware of
(1) Dangwa Transportation Co. vs. Court of Appeals, 202 SCRA 574
It is not negligence per se for a person to board a train which is
moving slowly. The fact that passengers board and alight from
slowly moving vehicle is a matter of common experience that both
driver and conductor should be aware of
(d) Mechanical defect is not fortuitous event; periodical visual
inspection of parts does not live up to duty of common carrier to

observe utmost diligence of a very cautious person for the safety of

passengers
Necesito vs. Paras, GR No. L-10605, June 30, 1958 (p. 97)
Facts: Common carrier met accident due to mechanical defect (broken
steering knuckle) causing loss of control over the bus.
Issue: What is the juridical relation between the parts manufacturer
and the common carrier?
Held: Agency, the manufacturer (of parts) is considered as agent of the
common carrier (i.e., common carrier deemed as principal) hence the
common carrier being deemed as principal, its reliance of the good
repute of the parts manufacturer who is its agent, is a misplaced
argument to relieve the common carrier from liability
Issue: Degree of diligence required upon common carrier in order to
avoid mechanical defect so as live up with its duty to observe utmost
diligence of a very cautious person
Held: If the mechanical flaw is at all discoverable, then the common
carrier should be liable and if impossible to detect by any known test
then it is not liable. In the case at bar, the only test/inspection made on the
mechanical parts of the bus was a purely visual inspection which is
lacking of diligence to determine whether the parts still at their
standard. The visual inspection though periodical did not measure
up to the required legal standard of "utmost diligence of very cautious
persons".
In fact, it is even ruled that mechanical defect is not fortuitous event
Article 1734 NCC that exempts the carrier from responsibility under
(e) Common carrier racing with another vehicle when accident happened
is negligence
Bacarro vs. Court of Appeals, GR No. L-34597, November 5, 1982 (p.
100)
Facts: The truck was in the process of overtaking the passenger jeepney,
the jeepney gave way by swerving to its right but did not slow down and
instead continued at same speed (40 kph). As the two vehicle were at side
by side and nobody slow down, they were approaching a narrow
bridge that could not accommodate the two vehicles, and in view of
which, the truck sideswiped the jeepney and pushed it into the ditch
causing injuries to the jeepney passengers.
Issue No. 1: Did the jeepney (common carrier) observed its duty under
Article 1755 the utmost diligence of very cautious persons, with a due
regard for all the circumstances
Held: NO. The jeepney being aware of the danger going side by side with
overtaking truck while approaching a narrow bridge, exposed its passengers
to danger

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Issue No. 2: There is no doubt that the truck is negligence as it

continued to overtake the jeepney despite approaching a narrow
bridge, and worse, it even side swept the jeepney. But the question is, is
the jeepney committed contributory negligence (with the truck driver)?
Held: YES. While it is true that the truck driver is also negligent, however,
the jeepney driver is likewise negligent such that had it reduced his
speed to allow the truck to overtake it instead of running side by side
with the truck, the accident should have been avoided
Issue No. 3: Can the jeepney driver invoke fortuitous event?
Held: NO. Fortuitous event refers to an event that cannot be foreseen,
or though foreseen nevertheless inevitable. In the case at bar, the
event of accident is foreseeable and can be avoided, i.e., the jeepney
driver cannot deny the event of danger speeding side by side with the truck
while approaching a narrow bridge which can be avoided had it slow down
(f) For a vessel to be seaworthy, it must be adequately equipped for the
voyage and manned with a sufficient number of competent officers
and crews
Trans-Asia Shipping Lines, Inc. vs. Court of Appeals, GR No. 118126,
March 4, 1996 (p. 103)
Facts: Common carrier (vessel) took its voyage despite one of its two
engines was mechanically defective. While voyaging, the only one
functioning engine also malfunctioned leaving the vessel powerless at
the mercy of wind and waves.
Issue: Before the common carrier took its voyage, was it seaworthy?
Held: NO. For a vessel to be seaworthy, it must be adequately
equipped for the voyage and manned with a sufficient number of
competent officers and crews - failing of which, is a breach of duty to
observe utmost diligence of a very cautious person with due regard for all
circumstances
4. No negligence on common carrier
(a) Common carrier is not negligent when delay in transporting the passenger
was due to fortuitous event/force majeure
Japan Airlines vs. Court of Appeals, GR No. 118664, August 7, 1998
(p. 110)
Principle: Common carrier is not liable for damages (i.e., living
expenses incurred while passenger stranded abroad) if its failure to
transport passengers on time was due to fortuitous event/force
majeure. However, considering that contract of carriage continues
despite stranded due to fortuitous event, the common carrier must
nevertheless still be mindful of the comfort and convenience of its
passengers by assuring that the stranded passenger must be
accommodated on the first available flight to his destination

Facts: Passenger boarded common carrier Japan Airlines (with flight no.
001) from San Francisco, California bound for Manila. As an incentive for
travelling on the said airline, the airline will shoulder hotel
accommodation of passengers while at overnight stopover on June 14,
1991 at Narita, Japan so that on June 15, 1991, the flight continues
from Narita, Japan to Manila. However, on June 15, 1991, the supposed
final flight from Narita, Japan to Manila was cancelled indefinitely because
of the eruption of Mt. Pinatubo that blanketed NAIA runway with ash
falls. The airline continued shouldering the hotel accommodation of the
passengers until the airline rebooked the passenger for his flight on June
16, 1991 from Narita, Japan to Manila. However on June 16, 1991, the
flight was again cancelled due to NAIA indefinite closure and from that
date (June 16, 1991), the airline informed the passenger that it would no
longer shoulder his hotel accommodation in Narita, Japan. The passenger
was also declassified from transit passenger to new passenger
so that he would no longer be boarding the original airline flight 001 but
on another airline thereby resulted to the categorization of the
passenger to a waiting list (i.e., akin to a chance passenger) from
June 20-24, 1991 that concomitantly resulted the passenger to further
incur expenses while stranded in Narita, Japan. It was only on June
22, 1991 that the passenger got a chance to board airline and had his
flight from Narita, Japan to Manila on board airline flight no. 741 (i.e., not the
original airline fight no. 001 as he was declassified to new passenger). In
view of which, the passenger was forced to shoulder for his own hotel
accommodations from June 16 to June 21, 1991.
Issue: Is the airline liable for actual damages as regards the hotel
expenses of the passenger from June 16-21, 1991?
Held: NO. The delay of the flight schedule was because of force
majeure (i.e., volcanic eruption [fortuitous event]). However, the airline is
not completely absolved from any liability. After the airline declassified
the passenger from transit passenger to new passenger that
resulted to his further delay of the passenger in Narita, Japan and
concomitantly, the further expenses incurred while stranded in Narita,
Japan so that it was only on June 22, 1991 that the passenger had his
flight from Narita, Japan to Manila. This supervening facts (i.e.,
declassifying the passenger from transit passenger to new
passenger/waiting list passenger) made the airline reneged on its
obligation to look after the comfort and convenience of its
passengers by way of making necessary arrangement to transport
the passenger on the FIRST AVAILABLE FLIGHT from Narita, Japan to
Manila for after all, the airline had a continuing/existing contract of
carriage to transport the passenger according to extraordinary
diligence

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HENCE: While it is true that the airline is not liable for actual damages
as regards the hotel expenses of the passenger from June 16-21, 1991
due to delay caused by force majeure/fortuitous event, nevertheless, it
is liable for nominal damages. Nominal damage is the vindication for
the violation of the right of passenger which consists of the right of
the passenger to have the first available flight which was not
complied to because of his declassification from transit passenger
to new passenger.
Issue: The passenger in alleging that the airline is liable for actual
damages including moral and exemplary damages, invoked the case
of Philippine Airlines vs. Court of Appeals (GR No. L-82619, September
15, 1993) where the airline was held liable for actual damages
(unrealized income due to delay), moral and exemplary damages due
to the fact that the passengers therein were stranded also. Is the
passenger correct?
Held: NO. Just as in the case of Philippine Airlines vs. Court of Appeals
(supra), the passenger was bound for Ozamiz City but was stranded in
Cotabato City due to fortuitous event. However, during the time that
passenger was stranded in Cotabato City, he was insufficiently
unattended to by the airline, the airline manager was even apathetic to
the predicaments of the passenger, and worse, the passenger was left at
the airport and could not even hitch a ride in a vehicle own by the
airline company just to get out of the premises of the airport. These
circumstances does not attend in the case at bar

(1) The operator of common carrier in allowing its bus to ply its route
with a defective speedometer showed lack of due diligence in the
supervision of its employees (driver) - in assuring the road
worthiness of its buses (Pestao vs. Sumayang, GR No. 139875,
December 4, 2000 [p. 116])
Note: This is also negligence on the part of the driver, which anyway
makes the common carrier also liable pursuant to Article 1759 (i.e.,
common carrier liable for injury/death of passenger due to negligence
[or wilful act] of its employee)
(2) Defective mechanical parts of the vehicle
Reason: Failure of the operator to observe due diligence in the
supervision of its employees - in assuring road worthiness of its
common carriers)
(3) Failure to employ only competent and tested driver

Article 1756 (Presumption of fault/negligence in case of death/injuries of

Reason: Failure of the operator to observe due diligence in the selection

passengers)

of its employee (Note: Road worthiness includes competent driver)

When passenger is injured/died, the common carrier is presumed at

fault/negligent

unless

it proved

that

it

observed

(b) Negligence on the part of the driver

extraordinary

diligence as prescribed in Articles 1733 and 1755 (i.e., utmost diligence of a

(1) Unjustified speed

very cautious person).

(2) Flagrant violation of elementary road courtesies
1. Negligence of the common carrier
(3) Failure to properly signal
(a) Negligence on the part of the operator of the common carrier

13
GWP

RA 4136 Section 44: The driver of any vehicle upon a highway,

(2) Driver bumped the rear of another vehicle (Reason for the

before starting, stopping or turning from a direct (straight) line,

presumption of negligence: Being behind, the driver has full

shall first see that such movement (starting/stopping/turning) can

control and in the full position in avoiding collision)

be made in safety, and if any pedestrian may be affected by

such movement (starting/stopping/turning), shall give a clearly

(a) General rule: Driver bumping rear portion of another vehicle

audible signal by sounding the horn, and whenever the operation

is presumed at fault/negligence its exemption (Lambert vs.

of any other vehicle approaching or following may be affected by

Heirs of Ray Castillon, GR No. 160709, February 23, 2005)

such movement (starting/stopping/turning), shall give a signal (e.g.,

Facts: Motorcycle driver after taking one/two bottles of beer, drove

signal light) plainly visible to the driver of such other vehicles of the

his motorcycle at high speed without wearing helmet and was

intention to make such movement.

following closely the jeepney. While following closely, the

jeepney driver slightly veered to his right for him to have space

(4) Driver intoxication

allowance for him to park on the road shoulder and then the
(5) Overtaking another vehicle despite the other vehicle refused to give

motorcycle veered to the left (to pass the jeepney) but it was also

way

at that moment when jeepney driver made immediate sharp left

turn to make the final parking that resulted the motorcycle driver

(6) Overtaking another vehicle, but before doing so, failed to verify

bumped the side of the jeepney that led to his death

whether another vehicle behind was also in the act of overtaking

him

Issue No. 1: In lines of jurisprudence such as Raynera vs. Hiceta,

GR 120027, April 2l1, 1999 (p. 116), held that drivers of vehicles

(7) Overtaking at a junction

"who bump the rear of another vehicle" are presumed at

fault/negligence - unless refuted by contrary evidence" now,

(8) Conversing with another while driving

is this presumption applicable as against the M/C driver and in

favor of the jeepney driver?

(c) Presumption of negligence on the part of the driver

Held: NO. In Raynera v. Hiceta (supra), the case also involved a

(1) Accident happened at the time the driver was violating traffic rules

M/C driver travelling more than the regulated speed and

and regulations (Mallari, Sr. vs. Court of Appeals, 324 SCRA 147 [p.

bumped the left rear portion of a truck at nighttime that was

116])

then travelling straight in the highway within the regulated

speed. The truck loaded with metal sheets extended 2 feet on its left

14
GWP

and 3 feet on its right, the truck had no tail lights installed but

of the accident, identify who between the negligence of the M/C

placed two (2) tail lights 35 watts each on top of the loaded

driver and the jeepney driver that is the last that immediately

metal sheets at any rate visible on the road, and truck was

followed the accident and in the case at bar, the last negligence

travelling straight on the road when the M/C driver bumped the

was the act of the jeepney driver in suddenly turning left that made

rear portion of the truck. In that case, Supreme Court ruled that the

the M/C driver bumped its left rear portion).

death of the M/C driver then driving more than the regulated
speed was solely attributable to his own negligence as he had full

Note: In Raynera vs. Hiceta (supra), there is no contributory

control to avoid colliding the rear of the truck considering that

negligence was held on reason that the truck driver was

being behind the truck, he was in a position to observe the

traveling within the regulated speed when suddenly the M/C

truck in front of him that was then running within the

driver

regulated only at 20-30 KPH and hence, such that the M/C

suddenly bumped the rear portion of the truck. Thusly, the

diver has the full opportunity to avoid the collision. In the case

negligence belongs solely against the M/C driver

of Raynera v. Hiceta (supra), the truck did not make a sudden

travelling

at

high speed

even during

nighttime,

2. Republic Act 4136 Section 41: Restrictions on overtaking and passing in

left turn unlike in the case at bar (Lambert vs. Heirs of Ray

HIGHWAY (p. 117)

Castillon, supra). Thus, in the case at bar, the general rule that one
who bump the rear of the another vehicle is presumed at

(a) The driver of a vehicle shall not drive to the left side of the center line

fault/negligent - is sufficiently refuted by contrary evidence

of a highway in overtaking UNLESS: The left side is clearly visible

constituting the sudden left turn made by jeepney driver which

free of oncoming traffic/vehicle for a sufficient distance ahead to

caused the M/C driver collided the jeepney.

(safely) permit such overtaking or passing

Issue No. 2: In the case at bar, is there contributory negligence

(b) The driver of a vehicle shall not overtake or pass another vehicle (1)

on the part of the M/C driver?

when approaching the crest of a grade in the highway, or (2) when

approaching curve in the highway when the driver's view along the

Held: YES. In contributory negligence, both the M/C driver and

highway is obstructed within a distance of 500 feet ahead - EXCEPT:

the jeepney are negligent (i.e., the former in travelling at high

On a highway having two or more lanes in one direction

speed while following closely the jeepney, and the latter in suddenly
turning left) - but the negligent of the jeepney driver is the

HOWEVER: In the highway within a business or residential district

immediate and proximate cause of the accident (Article 2179

though with 2/more lanes in one direction, passing/overtaking is

NCC). (Note: In determining the immediate and proximate cause

allowed only on the right

15
GWP

3. Common carrier not liable due to fortuitous event/force majeure

Issue: Is the proximate cause of the collateral damage due to force

majeure consisting of the grave or irresistible threat, violence or force of

(a) Article 1174 NCC: Fortuitous event/force majeure (defined)

the MNLF?

Except in cases expressly specified by the law or agreement, or when

Held: No doubt YES

the nature of the obligation requires the assumption of risk - no

person shall be responsible for those events which could not be

Issue: Considering that the collateral damage is due to force majeure,

foreseen,

is the common carrier liable?

or

which,

though

foreseen,

nevertheless

inevitable

(Provided the death/injury of passenger or loss/damage of goods is

exclusively caused by the force majeure/fortuitous event without any

Held: NO. In order to exempt a person (common carrier in the case at bar)

concurrence/participation of negligence of, or aggravation by the

under Article 1174 NCC (this is fortuitous event but the Supreme Court

common carrier)

deemed it also as force majeure [caso fortuito]), the following requisites: (1)
the breach of the obligation (i.e., not bringing the passengers safely to his

(b) Gacal vs. Philippine Airlines, GR No. 55300, March 15, 1990 (p. 126)

destination) must be independent of the human will/agency (i.e., airline

has no participation in the breach of contract of carriage), (2) an event

Principle: In order for common carrier to be absolved from liability in

intervened (fortuitous event/force majeure) that rendered the person

cases of force majeure/fortuitous event, the death/injury of passenger

(airline) impossible to perform his obligation in a normal manner, (3)

must be caused exclusively by force majeure/fortuitous event -

such event must either be unforeseeable, or though foreseeable

without

or

nevertheless inevitable, (4) the person (airline) must be free from

such

concurrence/participation in the negligence or aggravation of

injury/death/damage must be exclusively caused by the fortuitous

death/injury of passenger or loss/damage of the goods (viz., such

event/force majeure

injury/death/damage must be exclusively caused by the fortuitous

any

aggravation

concurrence/participation
by

the

common

carrier.

of

negligence

In

other

words,

of

event/force majeure). In the case at bar, in order to determine whether

Facts: As the Philippines was under the martial law regime, the security

the common carrier is free from concurrence/participation in the

at the airport was taken over by the military. However, MNLF rebels were

negligence or aggravation of the collateral damage - the basic issue is,

able to covertly aboard the airline with deadly firearms. MNLF rebels

whose responsibility why the MNLF rebels were able to board the

hijacked the airline (PAL). While airline was on the ground, the military

airline. Here, the security in the airport is not of the responsibility of the

took its operation that led to the liberation of the airline crews and

common carrier but by the military during the time that the Philippines

passengers though with collateral damages of injury and death of

was under martial law regime

passengers.

16
GWP

4. Negligence

of

common

carrier

concurred

with

the

fortuitous

(b) Bachelor Express Inc. vs. Court of Appeals, GR No. 85691, July 31,

event/force majeure (hence, common carrier is liable)

1990 (p. 124)

(a) Yobido vs. Court of Appeals, GR No. 113003, October 17, 1997 (p.

Principle: In order for common carrier to be absolved from liability in

118)

cases of force majeure/fortuitous event, the death/injury of passenger

must be caused exclusively by the force majeure/fortuitous event -

Principle: It is settled that an accident caused either by defects in the

without

automobile parts - is not a caso fortuito that would exempt the carrier

aggravation by the common carrier

any

concurrence/participation

of

negligence

of

or

from liability for damages

Facts: A passenger at the rear portion, suddenly ran amuck and
Issue: Whether explosion of a new tire is a fortuitous event?

stabbed a fellow passenger that caused commotion and panic among

passengers inside the bus and despite of which, the bus driver did not

Held: NO. Accident caused by defects in the common carrier is not

immediately stop the bus. Before the driver finally stopped the bus, two

fortuitous event or force majeure. A fortuitous event is possessed 4

passengers already jump-off the bus while commotion was going on and

requisites. The first requisite, the breach of the obligation (i.e., not

found lying on the road dead

bringing the passengers safely to his destination) must be independent of

the human will/agency (i.e., common carrier has no participation in the

Issue No. 1: Is the cause of the falling off the bus of the two (2)

breach of contract of carriage) is not complied with as there are human

passengers caused by force majeure?

factors involved that led to the explosion of the tire to wit: (a) the
fact that the tire was new did not imply that it was entirely free from

Held: YES. The sudden running amuck of the fellow passenger triggered

manufacturing defects, or (b) that the new tire was properly mounted

the commotion/panic of the other passengers inside the bus as they

on the vehicle, or (c) the fact that the tire is of a brand name noted for

compete each other getting off the bus to avoid the fellow passenger

quality, is conclusive that it could not explode within days use, or (d)

running amuck such that two (2) passengers jump-off the bus while the bus

the sudden blowing-up, could have been caused by too much air pressure

was still running. This sudden act of the fellow passenger running amuck

coupled by overloading (Note: In another case, the Supreme Court also

is within the context of force majeure (not foreseen).

ruled that the manufacturer is deemed agent of the common carrier

and the common carrier as principal so that negligence of agent is

Issue No. 2: Considering that the cause of the falling off the bus of two (2)

negligence of common carrier)

passengers caused by force majeure is the common carrier still

liable?

17
GWP

Held: YES. In order for common carrier to be absolved from liability in

5. Baliwag Transit, Inc. vs. Court of Appeals, GR No. 116110, May 15,

cases of force majeure/fortuitous event, the death/injury of passenger

1996 (p. 121)

must be caused exclusively by the force majeure/fortuitous event without any concurrence/participation/aggravation by the common

Principle: Article 1759: Common carriers are liable for the death/ injuries

carrier. In the case at bar, the common carrier concurred/participated in

of passengers through the negligence or willful acts of its employees -

the cause of death of the 2 passengers due to negligence of not

although such employees may have (1) acted beyond the scope of their

immediately stop the bus at the time the commotion/panic started

authority or (2) acted in violation of the orders of the common carrier

such that the two (2) passengers would not have died had the driver

Facts: The truck was parked along the shoulder of the highway, with a

immediately stopped the bus then they jump-off the bus - and on that

kerosene lamp placed behind the truck visible within 100 meters away to

reason, the common carrier breached its contract of carriage by not

serve as warning device while the driver and its helper were then replacing a

exercising utmost diligence of a very cautious person in the safety of

flat tire when a bus (common carrier) who was then travelling at fast speed

its passengers

while talking with another, bumped the parked truck

(c) Calalas vs. Court of Appeals, GR No. 122039, May 31, 2000

Issue No. 1: Is that kerosene lamp constitute substantial compliance of

Section 34 (g) of RA 4136 (Land Transportation and Traffic Code)?

Principle: Parking improperly would naturally put the common carrier

into foreseeing the danger resulting therefrom

Held: YES. Section 34 (g) of RA 4136 (Land Transportation and Traffic Code),
provides:

Facts: The passenger jeepney was parked improperly (diagonal parking)

along the shoulder of the highway such that part of it occupying about two

Lights and reflector when parked or disabled. Appropriate parking

(2) meters of the highway. On that juncture, the jeepney was bumped on

lights or flares visible one hundred meters away shall be displayed at

its rear causing injuries to its passenger

the corner of the vehicle whenever such vehicle is parked on highways or in

Issue: Is the bumping of the rear portion of the improperly parked

places that are not well-lighted or, is placed in such manner as to

jeepney - deemed fortuitous event/force majeure?

endanger passing traffic. Furthermore, every motor vehicle shall be

provided at all times with built-in reflectors or other similar warning devices

Held: NO. In fortuitous event, the event must be unforeseeable (cannot

either pasted, painted or attached at its front and back which shall likewise

be foreseen), or though foreseeable nevertheless inevitable. Here, the

be visible at night at least one hundred meters away. No vehicle not

jeepney should have foreseen the danger of diagonal parking

provided with any of the requirements mentioned in this subsection shall be

registered. (emphasis supplied)

18
GWP

The aforequoted law clearly allows the use not only of park lights and early

safety of passengers) - cannot be dispensed with or mitigated even by

warning device such as reflectorized triangular plates variety but also flares

stipulation/agreement, posting of notices, statements on tickets, or

visible one hundred meters away (such as kerosene lamps)

otherwise (Exception: Article 1758)

Issue No. 2: As mentioned, before the accident, the bus driver was

Article 1758 (Gratuitous carriage of passenger; exception of Article 1757)

driving at inordinate speed while talking with another. Is the common

carrier liable even if its driver (a) acted beyond the scope of his authority or

When a passenger is carried gratuitously, a stipulation/agreement

(b) acted in violation of the order of common carrier (i.e., a prior

limiting (not eliminating) the common carrier's liability for negligence is

instruction to driver to drive safely)?

valid (but only ordinary negligence) - BUT NOT: For willful acts or gross
negligence

Held: YES. Article 1759 NCC: Common carriers are liable for the death of
or injuries to passengers through the negligence or willful acts of its

Neither

reduction

of

fare

(hence,

not

gratuitous)

employees - although such employees may have acted x x x or in

limitation/mitigation of the common carrier's liability

would

justify

violation of the orders of the common carriers.

Article 1759 (Common carrier is liable - even if its employee acted ultra

Issue No. 3: Supposed the common carrier proved that t exercised diligence of

vires or if it proved diligence of good father of a family in the S/S of its

a good father of a family in the S/S of its employees such as the driver in this

employees)

case should the common carrier still liable?

Common carrier is liable for the death/injury to its passengers due to
Held: YES. But in culpa contractual such as contract of carriage, the

negligent act or wilful act of its employee EVEN IF: Such employee (1)

liability of common carrier is mitigated

acted beyond the scope of his authority or (2) acted in violation of the
orders of the common carrier AND: This liability does not cease even of
the common carrier proved that it exercised the diligence of a good father
of a family in the S/S of its employees (though liability of common carrier is

Article

1757 (Obligation of common carrier to safely transport its

mitigated)

passengers - cannot be dispensed/mitigated by any agreement)

Article 1760 (Limitation of liability under Article 1759 NCC)

The responsibility of a common carrier for the safety of passengers

prescribed under Articles 1733 (extraordinary diligence over safety of
passengers) and Article 1755 (utmost diligence of very cautious person in the

19
GWP

The common carrier's liability under Article 1759 cannot be eliminated or

(1) A passenger carried gratuitously - but no stipulation/agreement as

even limited by posting of notices, stipulation, statements on the

to limitation of liability

tickets or otherwise
(2) A passenger carried gratuitously due to his early age (e.g., a baby;
Note: Exception as regards limitation of liability of common carrier:

or

to

years

old)

is

deemed

passenger

Article 1758 NCC: When passenger carried gratuitously, common carrier by

stipulation/agreement as to limitation of liability

but

no

stipulation/agreement can validly limit its liability for ordinary negligence

(3) A stranger (i.e., not passenger; e.g., those selling foods who merely

(but never eliminated)

hitch a ride) carried gratuitously is deemed a passenger but no

1. Under Article 1744 NCC (in relation with Article 1745 NCC): x x x common

stipulation/agreement as to limitation of liability

carrier and the shipper or owner limiting the liability of the former for the
(4) A public officer carried gratuitously (badge; free passage) is deemed

loss, destruction, or deterioration of the GOODS to a degree less than

a passenger but no stipulation/agreement as to limitation of

extraordinary diligence (not gross negligence) shall be valid

liability
Question: Why is it that Article 1744 allows limiting liability of common carrier
(5) An employee of common carrier carried gratuitously though not

over goods, but not on passengers pursuant to Article 1757?

pursuant to his official duty but he rides by his own personal

Answer: It is obvious, the life of human being is at stake exception: Article

reason is deemed a passenger but no stipulation/agreement as to

1758 (passenger carried gratuitously)

limitation of liability. Opinion: If such employee is carried gratuitously

pursuant to his official duty required by common carrier (e.g.,

2. Some rules regarding common carrier carrying passengers gratuitously

(a) Common

carriers

liability

(injury/death

of

passenger)

for

conductor; inspector), then he is not a passenger as there is no

contract of carriage hence, degree of diligence required of a

ordinary

common carrier insofar as such employee is concerned is only ordinary

negligence can be validly limited provided it is stipulated/agreed (but

diligence

not eliminated)

Note: A limitation of common carriers liability on passengers carried

HERE: The common carrier is only to observe diligence good father of a

gratuitously is not allowed due to gross negligence, or willful act but

family (i.e., ordinary diligence) in the safety of its passenger

(b) Common

carriers

liability

(injury/death

of

passenger)

only ordinary negligence coupled with stipulation for limitation of

for

liability in any case, it can only be limited but not eliminated

ordinary

negligence cannot be limited

20
GWP

3. Common carriers are liable for the death of or injuries to passengers through

However, the common carrier after paying the heirs of the deceased

the (ordinary/gross) negligence or willful acts of its employees, although

passenger, may recover from its driver either in the same civil action by a

such employees may have (1) acted beyond the scope of their authority

3rd-party complaint, or in a separate civil action. However, if the case filed

or (2) acted in violation of the orders of the common carriers (Maranan

should have been a criminal case for homicide/murder with the civil

vs. Perez, GR No. L-22272, June 26, 1967; p. 130)

aspect instituted therewith, then the driver would have been primarily
civilly liable (Article 100 RPC: Every person criminally liable is also civilly liable),

Principle/reason: The basis of its liability is the breached of contract of

with the common carrier subsidiarily liable when the driver is insolvent

carriage in safely bringing its passenger to his destination

Note: The same rule applies with security guard guarding the premises of
Facts: The taxi driver out of personal reason (e.g., standing grudge), killed

the LRT (common carrier) who killed/injured a passenger (who already paid

his passenger

his fare) standing in a platform designated to await the arrival of the train

Issue: Is common carrier liable considering that its driver acted beyond his

4. Reason for liability of common carrier under Article 1759 NCC (i.e., driver

authority and also in violation of the order of the common carrier and

acted beyond his authority or violated the order of the common carrier)

more importantly, the killing was committed out of the personal reason of the
driver?

There is breached of contract of carriage to bring the passenger safely to

his destination pursuant to Article 1755 and this is true even if the common

Held: YES. Article 1759: Common carriers are liable for the death of or

carrier proved that it exercised diligence of a good father of a family in the S/S

injuries to passengers through the (ordinary/gross) negligence or willful acts

of his employees (e.g., driver; but will be mitigated)

of its employees (i.e., intentional killing of passenger) EVEN IF: Such

employees may have (1) acted beyond the scope of their authority or (2)
acted in violation of the orders of the common carriers

Article 1761 (Duty of passenger in avoiding injury to himself)

Reason: The common carriers breach of contract of carriage in bringing

The passenger must observe diligence of a good father of a family

the passenger safely to his destination

(ordinary diligence not extraordinary) in order to avoid injury to himself

Note: In the case at bar, the Supreme Court also ruled that because the civil
1. Negligence of passenger

action filed was for breach of contract of carriage, the driver was not
held civilly liable to the heirs of the deceased passenger - SINCE: The

(a) Isaac vs. A.L. Ammen Transportation, GR No. L-9671, August 23,

contract of carriage is between the common carrier and the passenger.

1957

21
GWP

Facts: Passenger extended his arm outside the window of the common

the immediate and proximate cause of his injury is his own negligence

carrier to flick the ashes of his cigarette, which at that time, it happened a

which he cannot recover any damages; or [2] the negligence of plaintiff

pick-up truck in the opposite direction, negligently hit the common carrier

is only proximate but not immediate, such that the immediate and

without fault of the latter causing injury to the passenger

proximate cause of the injury of plaintiff still that of the defendant, then the
plaintiff can still recover damages but mitigated)

Held: The common carrier is not liable for the injured passenger
pursuant to Article 1761 that a passenger must exercise ordinary

1. Contributory

negligence

under

Article

1762

(by

passenger)

is

diligence to avoid injury to himself. However, the negligent pick-up

counterpart of Article 1741 (by shipper/owner of the goods), which

truck is liable for its negligence, although the passenger was held to be

provides: If the shipper or owner merely contributed to the loss, destruction

guilty of contributory negligence in causing injury to himself (i.e.,

or deterioration of the goods, the proximate cause of such damage/loss being

extending his arm outside the window) but the proximate cause of his

the negligence of the common carrier, the common carrier shall be liable

injury is that of the pick-up truck. Hence, there being contributory

for damages but equitably reduced

negligence, the liability of the pick-up truck must be equitably reduced

2. How to determine the amount of damages against the defendant (e.g.,
2. When passenger committed negligence causing injury to himself

common carrier) in case of contributory negligence on the part of the

plaintiff (e.g., passenger)

Read Article 1762 (regarding negligence of both the passenger and common
carrier)

The underlying precept of Article 2179 on contributory negligence is that a

plaintiff who is partly responsible for his own injury is not entitled to
recover full damages, and the defendant shall be liable only for those

damages actually caused by his negligence provided the immediate and

Article 1762 (negligence of both the passenger and common carrier)

proximate cause of injury still that of the defendant (Syki vs. Begasa, GR
No. 149149, October 23, 2003; p. 131)

If both the common carrier and passenger are negligent, but the negligence
of the passenger is the (immediate and) proximate cause of his injury/death,

3. Proximate cause defined

he cannot recover damages (Article 2179) BUT: If negligence of the

passenger is only proximate cause (not immediate and proximate cause) to

It the natural and continuous sequence of events unbroken by any

his injury, such that the immediate and proximate still that of the common

efficient intervening which events caused damage/injury

carrier, then the passenger can still recover damages but mitigated (Note:
4. Calalas vs. Court of Appeals, GR 122039, May 31, 2000 (p. 131)

There is contributory negligence on the part of the plaintiff when either [1]

22
GWP

Principle: Doctrine of Proximate Cause applies only in quasi-delict (no

1755 (observance of common carrier of utmost diligence of very cautious

pre-existing contract), and so such doctrine does not apply in favor of common

person as regards the safety of the passenger), and Article 1756 (presumption

carrier as against its passenger - when the basis of the cause of action in a

of fault/negligence when the passenger is injured/died)

civil case is grounded on Breach of Contract such as Contract of Carriage

Issue No. 2: Against whom then the jeepney can apply the Doctrine of
Facts: Passenger took the extension seat at the back of a passenger

Proximate Cause?

jeepney (common carrier) as the jeepney was already full of passengers inside.
The jeepney stopped to alight another passenger though improperly parked, so

Held: Only against the truck under the quasi-delict there being no pre-

that the Passenger has also to alight from the jeepney to give way to the

existing contractual relation between the jeepney and the truck - and

alighting passenger and while doing so, a truck hit the rear of the jeepney

not in the civil action filed by the Passenger against the jeepney which is

resulting to the injury of the Passenger. The Passenger filed civil action for

breach of contract of carriage

damages against the jeepney for breach of contract of carriage for not

Issue No. 2-A: What procedural remedy that the jeepney may undertake

bringing him safely to his destination

to make the truck liable under quasi-delict to it?

Issue No. 1: The jeepney in its attempt to free itself from liability to the

Answer: The jeepney can make the truck liable in the same civil case for

Passenger, alleged that the proximate cause of the injury of the Passenger

breach of contract filed by the Passenger through 3rd-party complaint for

was due to the negligence of the truck. Is the jeepney correct?

quasi delict, or jeepney can file a separate civil action also for quasi
delict

Held: NO. What the jeepney invoking is the Doctrine of Proximate Cause
against the truck causing injury to the Passenger. This is a misplaced

Issue No. 3: Under Article 1756, the common carrier is presumed at

argument. Doctrine of Proximate Cause only applies when the parties have

fault/negligent when the passenger died/injured. Before this presumption arises

no pre-existing contractual relation such as in cases for quasi delict.

shifting burden of proof against the common carrier, what first need to be

Remember that the case filed by the Passenger is breach of contract of

proven by the passenger?

carriage(which in the case at bar for not bringing the passenger safely to his
destination) where there is a pre-existing contractual relation with the

Held: The passenger only needs to prove two things, (1) the existence of

jeepney, and this contractual relation is governed by: (1) Insofar as carriage of
goods

is

concerned,

Article

1733

(observance

of

common

carrier

contract of carriage, and (2) that the passenger did not reach his destination

of

safely as he was injured/died

extraordinary diligence in the vigilance over the goods), Article 1735

(presumption of fault/negligence of common carrier in case the goods are
damaged/loss), and (2) Insofar as carriage of passenger is concerned, Article

23
GWP

Issue No. 4: What need to be proven by the common carrier in order to

Note: Surprisingly, the jeepney did not invoke Doctrine of Contributory

completely free itself from liability to tis passenger?

Negligence which is allowed under Article 1762 if only to mitigate its

liability

Held:

Article

1756:

Common

carriers

must

prove

that

it

observed

extraordinary diligence as defined in Arts. 1733 and 1755 NCC. Or, Article

Issue No. 7: Is the bumping by the truck against the rear of the jeepney

1762: That the immediate and proximate cause of the injury/death of the

constitutes caso fortuito (force majeure)?

passenger was due to his own negligence (Note: This is not contributory
negligence because there is contributory negligence only when the

Held: NO. A caso fortuito (fortuitous event) under Article 1174 is an event

proximate cause of injury/death was because of the passenger himself)

which could not be foreseen, or which, though foreseen, was inevitable. The
jeepney driver should have foreseen the danger of parking his jeepney

Issue No. 5: Did the jeepney prove that it observed extraordinary diligence in

diagonally with its body protruding two meters into the highway

the safety of the passenger-Victim as far as human care and foresight can
5. Estacion vs. Bernardo, GR No. 144723, February 27, 2006

provide using utmost diligence of a very cautious person?

Held: NO. First, the jeepney was not properly parked, its rear portion

Facts: Noe boarded a passenger jeepney driven by jeepney driver owned by

being exposed about two meters from the highway in a diagonal angle.

jeepney owner. Noe hung on the left rear carrier of the jeepney considering

Second, jeepney took in more passengers than its allowed seating

that jeepney is already full. Somewhere along the way, the jeepney stopped

capacity

by the right shoulder of the road to pick up passengers when suddenly, a

truck driven by truck driver owned by truck owner at fast speed and faulty

Issue No. 6: In another attempt of the jeepney in avoid liability, it invoked

brake, hit the rear end portion of the jeepney where Noe was standing

Doctrine of Assumption of Risk considering that the Victim voluntarily took

causing him injury. Noe filed complaint with RTC civil case under quasi-

the "extension seat", he therefore placed himself in a peril and thereby

delict against truck driver and truck owner (i.e., there being no pre-

there amounted to an implied assumption of risk?

existing contractual relation). In the same civil case, truck owner and truck
driver filed a third party complaint against jeepney owner and jeepney

Held: NO. If that contention of the jeepney is to be taken, then it is akin to

driver (also for quasi delict there being no pre-existing contract between

arguing that the injuries to the many victims of the tragedies in our

them). The RTC rendered its judgment finding truck owner and truck driver

seas should not be compensated merely because those passengers

solidarily liable for damages ruling that the proximate cause of the

ASSUMED a greater risk of drowning by boarding an overloaded ferry

injury sustained by Noe was the negligent truck driver who was driving at

(which in replete cases decided by the Supreme Court, it held the vessel liable

a fast speed with a faulty brake when the accident happened. The CA

for damages)

affirmed in toto the decision RTC.

24
GWP

Issue No. 1: Was the truck driver negligent when it hit the rear of the

Held: YES. Noes act of standing on the rear carrier of the jeepney exposing

jeepney causing injury to Noe?

himself to bodily injury is negligence per se (HENCE: Doctrine of

Contributory Negligence applies in both culpa contractual [e.g., breach

Held: YES. The truck driver was running at a fast speed proven by evidence

of contract of carriage] pursuant to Article 1762 NCC and quasi-delict

that only one of the trucks wheel skidded producing tire mark visibly printed

pursuant to Article 2179 NCC (Note: Article 2179 applies both to culpa

on the road by 48 feet length. The truck also had faulty brake system

contractual and quasi-delict). BUT: Remember that Doctrine of Proximate

considering that there was only one tire mark of the truck instead of two tire

Cause applies only in quasi-delict but not in culpa contractual [e.g.,

marks on the road.

breach of contract of carriage] as the cause of action of the plaintiff-passenger

is based of contract of carriage he has with the defendant-carrier so that all

Issue No. 2: Who is therefore the proximate cause of the accident?

the defendant- carrier has to prove to be free from civil liability is that he
observed utmost diligence of the very cautious person in the vigilance over

Held: The truck driver (Note: Doctrine of Proximate Cause applies

safety of the passenger)

because the civil action filed by Noe against the truck is based on quasi-delict
there being no pre-existing contractual relation between them)

Issue No. 4: Is the jeepney driver also negligent?

Issue No. 3: While it is true that the negligence of the truck driver was the

Held: YES. The jeepney DRIVER in allowing his jeepney overloaded is in

proximate cause of the accident the question is, did Noe also committed

violation of traffic rules and regulations particularly RA 4136 Article 3 Section 32

contributory negligence?

(c) [The Land Transportation and Traffic Code]: Riding on running boards No
driver shall allow any person to ride on running board, step board or mudguard
of his motor vehicle for any purpose while the vehicle is in motion. If the
jeepney driver would not have allowed overloading, Noe would not have been
standing on the rear carrier
Issue No. 5: What is the legal consequence against jeepney OWNER when
his jeepney DRIVER was found negligence?
Held: Arises the presumption of fault/negligence against the common
carrier jeepney pursuant to Article 1756 NCC. For the jeepney owner to
completely avoid civil liability, he must present evidence that he observed
diligence of a good father of family either in the selection of his

25
GWP

employees (jeepney driver) or in the supervision of his employee (jeepney

Issue No. 8: Considering that the truck owner, truck driver, jeepney

driver), otherwise he is solidarily liable with his jeepney driver pursuant to

owner and jeepney driver are all negligent, to include also the

vicarious liability under Article 2180

contributory negligence of Noe how much and how then should the
damages be contributed?

Issue: No. 6: We know that in quasi-delict, when the vehicle owner able to
prove that he exercise diligence of a good father of family in the S/S of

Held: The truck owner, truck driver, jeepney owner and jeepney driver shall be

his employees, then he is completely exonerated from any liability. The

solidarily liable to Noe but only for damages actually caused by them, and

question is, what quantum of evidence needed by the vehicle owner in

Noe shall bear his own damages actually caused by himself (equitable

proving the required diligence of a good father of a family in the S/S of his

reduction

employees?

Negligence committed by Noe [case to case basis]). In the case at bar, the

of

liability

pursuant

to

the

Doctrine

of

Contributory

Supreme Court decided just like in the case of Anuran v. Buo, Batangas
Held: Vehicle owner must prove adequate and convincing proof - that he

Laguna Tayabas Bus Co. v. Intermediate Appellate Court, and Metro

observed diligence of a good father of a family in the selection and supervision

Manila Transit Corporation v. Court of Appeals, the 20% of the damage

of his employees (Note: When there is juris tantum presumption, to rebut such

must be born by Noe, and the 80% of the damage must be solidarily born

presumption, it requires contrary evidence by clear and convincing proof)

by truck owner, truck driver, jeepney owner and jeepney driver. This
contribution of liability has already been also ruled in the case of Gutierrez v.

Issue No. 7: In proving exercise of diligence of a good father of family in the

Gutierrez, 56 Phil. 177: that in case of injury to a passenger due to the

S/S of employees what are to be proven by the owner of the vehicle?

negligence of the driver of the bus on which passenger was riding and of
the driver of another vehicle, the drivers as well as the owners of the two

Held: In the selection of employee, vehicle owner should not be satisfied

vehicles are jointly and severally liable for damages.

only with the applicants mere possession of a professional drivers

license; he must also carefully examine and verify the applicant for

(1) Personal observation in the case Calalas vs. Court of Appeals (supra)

employment as to his qualifications (among which is possession professional

and Estacion vs. Bernardo (supra)

drivers license), his experience (e.g., how long the driver been driving
vehicle) and record of service (e.g., his past employers). Now, in the

(a) Why in Calalas vs. CA, the passenger is not liable for taking the

supervision of employee after being selected, the vehicle owner make draft

extension seat WHILE: In Estacion vs. Bernardo the passenger

and implement training programs and guidelines on road safety,

liable for taking the left rear carrier of the jeepney?

require the employee to attend periodic seminars on road safety and

traffic efficiency

Reason: In Calalas vs. CA, the passenger filed breach of contract

of carriage against the jeepney. The jeepney erroneously invoked

26
GWP

Doctrine of Proximate Cause against the passenger for taking the

Issue No. 2: Is the passenger guilty of contributory negligence?

extension seat which is applicable only in quasi-delict and not to

of

Held: YES. While both the train and the passenger are negligent,

Contributory Negligence on reason that the passenger took the

nevertheless, the proximate cause (i.e., not immediate and proximate

extension seat, then it MAY have the chance to mitigate its liability

cause) of the death of the passenger is that of the passengers own

provided the proximate cause of the injury is because Noes own

negligence in which case, the liability of the train shall be equitably

negligence BUT: If the immediate and proximate cause of Noes

reduced (Article 1762 NCC)

culpa

contractual.

Had

the

jeepney

invoked

Doctrine

injury is Noes own negligence, then the jeepney owner is completely

6. Doctrines/principles which applies and/or do not apply to Breach of

not liable (Article 2179). WHILE: In Estacion vs. Bernardo, the

Contract (e.g., contract of carriage)

jeepney passenger filed quasi-delict against the truck owner & driver
applicable. Note: Doctrine of Contributory Negligence applies

(a) Doctrine of Proximate Cause

both in culpa contractual (e.g., breach of contract of carriage) and

quasi-delict

As already discussed in the case of Calalas vs. Court of Appeals (supra),

this doctrine only applies to quasi-delict where there is no pre-existing

(2) Another case of contributory negligence on the part of passenger (Philippine

contractual relation between the plaintiff and defendant, and not to culpa

National Railways vs. Court of Appeals, GR No. L-55347, October 4, 1985)

contractual (e.g., breached of contract of carriage)

Facts: The passenger train was overcrowded that made the passenger sit

(b) Doctrine of Res Ipsa Loquitur (applies both in culpa contractual and

on the open platforms between the train coaches. The train did not

quasi-delict)

slow down when it was approaching a bridge under repair that led to the
falling of the passenger and despite the call of other passengers that a

(1) Huang vs. Philippine Hoteliers Inc., GR No. 180440, December 5,

certain passenger fell off, the train did not stop

No.

1:

pre-existing

contractual relation

who bumped the jeepney where Doctrine of Proximate Cause is

Issue

- where there

Can

the

train

invoke

Doctrine

2012
of

Contributory

Res ipsa loquitur is a Latin phrase which literally means "the thing or

Negligence?

the transaction speaks for itself" (viz., evidence speaks for itself) where
there is no direct evidence proving negligence but there are

Held: YES. Such doctrine applies in breach of contract (e.g., breach of

2/more

contract of carriage; Note: Such doctrine also applies in quasi-delict)

circumstantial

evidence

proving

facts

that produces

presumption of negligence

27
GWP

Question: What is the use of Doctrine of Res Ipsa Loquitur?

Issue No. 1: Is the Truck Owner a common carrier in order to be

presumed

Answer: There being no direct evidence to prove negligence, comes

at

fault/negligent

(pursuant

to

Article

1735

NCC

[transportation of goods])?

in therefore circumstantial evidence to prove facts to establish res

ipsa loquitur

Held: NO. The Truck Owner being an exclusive hauler of the Shipper,
offering its services to no other except the Shipper. Common

Question: If the Doctrine of Res Ipsa Loquitur is proven what legal

carriers transport goods for the public indiscriminately such that it

consequence it produces in relation to negligence?

offers is services to all those who opt to avail of its transportation

service for a fee which circumstances does not attend the Truck Owner

Answer: It produces presumption of fault/negligence against the

since it offers its transportation service only to the Shipper

defendant

THEREFORE:

The

Truck

Owner

is

private

carrier

so

that

presumption of fault/negligence does not apply

(2) Requisites for the application of Doctrine of Res Ipsa Loquitur

(FGU Insurance Corp. vs. Eroles, GR No. 141910, August 6, 2002; p. 131)

Issue No. 2: Considering that the Truck Owner is only a private

carrier, can there be any way that it can be presumed

Facts: Truck Owner is the exclusive hauler of the goods of the Shipper.

at

fault/negligent?

Truck Owner then transported the goods of the Shipper through its truck
driven by Truck Driver. While transporting, the truck met an accident

Held: YES through the Doctrine of Res Ipsa Loquitur

when it collided with unidentified vehicle causing damage to the

goods. The Insurer paid the Shipper as to the value of the goods

Issue No. 3: Is the Doctrine of Res Ipsa Loquitur applies in case of

hence, the Insurer becomes the subrogee to the rights of the Shipper to

civil action for culpa contractual (in this case, breach of contract of

claim damages. The Insurer filed civil case for breach of contract of

carriage)?

carriage against the Truck Owner and the Truck Driver. However,
the Insurer cannot produce direct evidence whether the Truck Driver

Held: YES and this is true whether the action is based on culpa

is negligent when it collided with another unidentified vehicle (e.g., no

contractual or quasi-delict

witness to the vehicular accident between the truck and the unidentified
Issue No. 4: In the case at bar particularly, does the Doctrine of Res

vehicle).

Ipsa Loquitur apply?

28
GWP

Held: NO. For the Doctrine to be applicable, there are four (4)

Held: YES. The Truck Owner having admitted that the goods been

requisites: (1) there is no direct evidence proving negligence of

lost or damaged WHILE in its custody hence, with such

the defendant-Truck Driver, such as in the case at bar [in the case at bar,

circumstances, the Truck Driver is presumed at fault/negligent unless

no direct evidence as no witness to the collision between the truck and

it proves otherwise

the unidentified vehicle], (2) the event [that caused damage/injury]

does not ordinarily happen unless there is negligence [in the case

Issue No. 6: Considering that the Insurer filed civil action for

at bar, the damage/loss of goods could not ordinarily happened unless

CULPA CONTRACTUAL (breach of contract of carriage) against the

there is negligence on the part of the defendant Truck Driver], (3) such

Truck Owner and Truck Driver the question is, can the Truck

event (causing damage/injury) happened under the exclusive control

Driver be also made liable in such Breach of Contract of Carriage?

of the defendant without any kind of intervention of plaintiff/others/3rd

person, (4)

such negligence

is

relevant

to the

Held: NO. Because under Article 1311 NCC, contract (in this case,

defendants

Contract of Carriage) only binds the parties therein and their

obligation [in the case at bar, obviously relevant]. Now, in the case at

successors. In the case at bar, the contract only between the Truck

bar, what makes the Doctrine not applicable because of the absence of

Owner and the Shipper (subrogated by Insurer as successor).

the 3rd requisite such event (causing damage/injury) happened under

Therefore, the Truck Driver is stranger to the contract thereby not

the exclusive control of the defendant [in this case the defendant

making him liable to the civil case for breach of contract of

Truck Driver] without any kind of intervention of plaintiff/others/3rd

carriage filed by Insurer

person because the event of collision that caused damage/loss to

the goods is not under the exclusive control of the defendant truck

(c) Doctrine of Last Clear Chance (applies only in quasi-delict)

driver considering the fact that in such event there is another party
involved and that is the unidentified vehicle with whom it collided

(1) Doctrine of Last Clear Chance requisites (Picart vs. Smith, 37 Phil

with the truck

809)

Issue No. 5: Considering that the insurer cannot invoke the Doctrine

(a) Both parties are negligent but the negligence of one party is

of Res Ipsa Loquitur, is there any other way that the Truck Driver is

succeeded by the other party

presumed at fault/negligence despite the fact that it is merely a

private carrier and even coupled with the fact that the insurer cannot

(b) The difference of time between such negligence of the parties is

produce direct evidence to prove such negligence?

by appreciable interval of time which appreciable interval of

time gave the succeeding negligent party the last clear
chance/opportunity to avoid the impending injury/accident

29
GWP

but despite of such chance/opportunity, the succeeding negligent

The Doctrine of Last Clear Chance does not apply to culpa

party fails to avoid the injury/accident

contractual (e.g., Breach of Contract of Carriage) but only to quasi

delict where there is no pre-existing contractual relation between

IN WHICH CASE: The succeeding negligent party who was

parties (Note: Same with the Doctrine of Proximate Cause which

afforded the last clear chance to avoid the impending injury/accident

does not also apply in culpa contractual but only in quasi-delict)

is fully liable for damages (i.e., no mitigation of liability; viz., the

Question No. 1: Why the Doctrine of Last Clear Chance does not

prior negligent party is not at all liable for his own negligence)

apply to civil case for culpa contractual?

Question:

What

is

then

the

difference

between

Doctrine

of

Contributory Negligence and the Doctrine of Last Clear Chance

Answer: Remember what the plaintiff filed is civil case for culpa

considering that both parties are negligent, and yet in the former,

contractual (e.g., breach of contract of carriage), the cause of action is

the defendant is still liable though mitigated, and in the latter, the

based on contract he has with the defendant. Hence, it would be

defendant is fully liable without mitigation?

misplaced for the defendant to invoke the Doctrine of Last Clear Chance
which only applies in quasi-delict where there is no pre-existing

Opinion:

In

the

Doctrine

of

Contributory

Negligence,

the

contract between the parties

negligence of the defendant is immediate and proximate to the

damage/injury which makes the defendant liable but mitigated (hence,

ALSO: Remember that in Doctrine of Last Clear Chance both parties

being immediate, there is no appreciable interval of time in between

are negligent though they have no pre-existing contractual relation,

the negligence of both parties) WHILE: In the Doctrine of Last Clear

and hence, if the plaintiff filed culpa contractual against the

Chance, the negligence of the defendant is intervened by an

defendant (e.g., breach of contract of carriage), it would be unfair

appreciable interval of time from that of the negligence of the

against the plaintiff for the defendant to exculpate himself from

plaintiff which appreciable interval of time gave the defendant the

liability under culpa contractual due to his own negligence by

clear opportunity/chance to avoid the impending damage/injury

alleging the negligence of another person supposedly the Doctrine

but he did not/failed. Hence, it is on this last clear opportunity given

of Last Clear Chance considering that said another person is completely

the defendant but despite of which he failed to avoid the damage/injury -

stranger to the contract between the plaintiff and defendant

that renders the defendant is liable for damages in full

Opinion: In fact, it would be dangerous for the defendant to invoke the
Doctrine of Last Clear Chance when the plaintiff filed against him civil

(2) Tiu vs. Arriesgado, GR No. 138060, September 1, 2004

case for culpa contractual BECAUSE: If the defendant invoked the

30
GWP

Doctrine of Last Clear Chance due to the negligence of another, then

(d) Doctrine of Contributory Negligence (Article 2179 NCC; applicable in

inevitably, the defendant admitted that he himself is negligent

culpa contractual [also in quasi-delict] - BUT NOT: In criminal [dolo/culpa] to

avoid criminal liability)

HENCE: Suppose the injured plaintiff is the passenger of the common

carrier, and he filed breach of contract of carriage against the

Article

2179

NCC:

When the

common carrier due to negligence of its driver and in the same

immediate and proximate cause of his injury, he cannot recover

civil case for breach of contract of carriage against the common

damages. BUT: If the plaintiffs negligence was only contributory, the

carrier, the common carrier cannot avoid his liability with its

immediate and

passenger by invoking that the Doctrine of Last Clear Chance

defendant, then the plaintiff can still recover damages but mitigated

proximate

plaintiff's own

cause

negligence

was the

of the injury still that of the

alleging negligence of another vehicle as it would be inequitable for the

(1) Syki vs. Begasa, GR 149149, October 23, 2003

common carrier to invoke such Doctrine (i.e., both common carrier and
the other vehicle are negligence) to exempt itself from liability who

FACTS: Passenger was on the act of boarding passenger jeepney when a

truck bumped the rear of the jeepney causing injury to passenger.
Passenger filed breach of contract of carriage against jeepney owner and
quasi-delict against truck owner and truck driver. The RTC and CA found
jeepney owner not liable for damages, however, the truck owner and
truck driver made liable to the passenger. Truck owner and truck driver
in order to mitigate its liability, invoked Doctrine of Contributory
Negligence against the passenger on reason that the passenger flagged
down the jeepney at the improper place, i.e., at the intersection road,
such that had the passenger flagged down the jeepney at the proper
place, his injury could have been avoided. In other words, the truck
owner and truck driver is trying to prove that while it is true that
immediate and proximate cause of the injury of the passenger is due to
the negligence of the truck driver, nevertheless, the passenger was
himself negligent (though not immediate and proximate to his injury).
This allegation of contributory negligence against the passenger was not
proven by the truck owner and truck driver but instead, the sole and
proximate cause of the injury of the passenger was due to the
negligence of the truck driver.
ISSUE: Suppose the truck owner and truck driver able to prove that the
immediate and proximate cause of the injury of the passenger was
due to the negligence of the passenger what is the legal
consequence as to the liability of the truck owner and truck driver?
HELD: The truck owner and truck driver are completely free from
liability for damages to the passenger (Article 2179 NCC)

from the beginning, the driver of the common carrier was

negligent in causing injury/death to its passenger
Question No. 2: Considering that the common carrier in exempting
itself from liability to its passenger, cannot invoke the Doctrine of
Last Clear Chance against the other vehicle in the same civil action
for breach of contract of carriage filed by the passenger the
question is, what is then the remedy of the common carrier in order to
make the other vehicle liable to itself (common carrier)?
Answer: In the same civil case for breach of contract of carriage
filed by passenger against the common carrier, the common carrier
can by leave of court, file 3rd-party complaint for quasi-delict
against the other vehicle (whether by Doctrine of Contributory
Negligence, Doctrine of Last Clear Chance or Doctrine of Proximate
Cause), or file a separate civil action also for quasi-delict against
the other vehicle (whether by Doctrine of Contributory Negligence,
Doctrine of Last Clear Chance or Doctrine of Proximate Cause)

31
GWP

ISSUE: Suppose the truck owner and truck driver able to prove that
while admitting that the immediate and proximate cause of the
injury of the passenger was due to the negligence of the truck driver,
nevertheless, the passenger was himself also negligent what is
the legal consequence as to the liability of the truck owner and truck
driver?
HELD: Then there is contributory negligence on the part of the
passenger thereby the truck owner and truck driver are solidarily
liable to the passenger but mitigated (Note: If the immediate and
proximate cause of the injury of the passenger was due to his own
negligence, then the passenger cannot recover damages)
ISSUE: Suppose it is proven by the passenger that the sole/exclusive
and proximate cause of his injury was due to the negligence of the
truck driver - what is the legal consequence as to the liability of the
truck owner and truck driver?
HELD: The truck owner and truck driver are solidarily liable to the
passenger in full (i.e., no mitigation of liability for damages). Reason:
Considering that the sole/exclusive and proximate cause of the
injury of the passenger was due to the negligence of the truck driver,
then it means that the passenger is not at all negligence
ISSUE: Considering that the sole/exclusive and proximate cause of
the injury of the passenger was due to the negligence of the truck
driver - what is then the remedy of the truck owner to completely
free himself from liability?
HELD: The truck owner must prove that he exercised diligence of
a good father of a family in the S/S of the truck driver in which
case, only the truck driver is liable to the passenger

The driver, in his attempt to exonerate himself from criminal

liability,

counter-alleged

that

the

pedestrian

committed

contributory negligence that led to her own accident

Issue: In criminal cases for reckless imprudence resulting to
homicide, can the driver contributory negligence of the
victim?
Held: NO. Remember that the criminal case is reckless imprudence
resulting to homicide, hence it would be unfair for the accused to
invoke the Contributory Negligence of the pedestrian - since the
accused cannot allege the negligence of another (pedestrian) to
evade the effects of his own negligence
Opinion: In criminal case for reckless imprudence resulting to
homicide/physical injuries, it is dangerous for the accused to invoke
the Doctrine of Contributory Negligence because if he does, he
thereby admits that he himself is negligent
(b) Manzanares vs. People, GR No. 153760-61, October 12, 2006

(2) In criminal cases of criminal negligence, the Doctrine of

(the accused invoking the negligence of another; p. 133)

Contributory Negligence as regards either the victim or another

person - cannot be invoke by the accused in order to exculpate

Facts: Isuzu six-wheeler truck collided with passenger jeepney

himself from his CRIMINAL LIABILITY

resulting to the injuries of some of the passengers of the

jeepney. The passengers filed criminal case (reckless imprudence)

(a) Genobiagon vs. People, GR L-40452, October 12, 1989

against the truck driver

(accused invoking the negligence of the victim; p. 133)

Issue: Can the truck driver, in order to avoid criminal liability

Facts: A reckless driver bumped a pedestrian who died as a result. A

to

criminal case for reckless imprudence resulting to homicide was

the

passenger,

invoke

Doctrine

of

Contributory

filed by heirs pedestrian (as private complainant) against the driver.

32
GWP

Negligence on the part of the driver of the passenger

injury/death, he cannot recover damages (Article 2179) BUT: If

jeepney?

negligence of the common carrier is the (immediate and)

proximate cause, then the passenger can recover but mitigated

Held: NO. "The defense of contributory negligence does not apply

(here, there is contributory negligence on the part of the

in criminal cases committed through reckless imprudence,

passenger - liable only for those damages actually caused)

since one cannot allege the negligence of another to evade the

effects of his own negligence.

(b) In quasi-delict filed by negligent-plaintiff (e.g., pedestrian or

passenger of another vehicle) against the negligent-defendant, can

Remedy of truck driver and its operator: File a separate civil

the negligent-defendant invoke the Doctrine against the negligent

case against the jeepney and therein invoke the contributory

plaintiff?

negligence of the jeepney driver

Answer: YES. Article 2179: When the plaintiff's own negligence
(3) In criminal cases of criminal negligence, the Doctrine of

was the immediate and proximate cause of his injury, he cannot

Contributory Negligence as regards either the victim-pedestrian

recover damages. BUT: If the plaintiffs negligence was only

(Genobiagon vs. People[supra]) or another person (Manzanares vs.

contributory (so that the immediate and proximate cause of the

People [supra]) - cannot be invoke by the negligent-accused in order

injury is that of the defendant), then the plaintiff can still recover

to exculpate himself from his criminal liability

damages but mitigated

Question: The question is, in civil cases, in order to mitigate civil

(c) In a civil case for quasi-delict filed by non-negligent plaintiff

liability, can the defendant invoke the Doctrine of Contributory

against negligent-defendant, can the negligent-defendant in the

Negligence against the plaintiff-passenger or the plaintiff-3rd person?

same civil case invoke the Doctrine against the negligent of

another/3rd-party?

(a) In breach of contract of carriage filed by negligent-passenger

against the negligent-vehicle (common/private carrier), can the

YES. The negligent-defendant can file 3rd-party complaint against

negligent-vehicle invoke the Doctrine against the negligent-

the negligent another/3rd-party (Estacion vs. Bernardo, GR No.

passenger?

144723, February 27, 2006 [supra])

Answer: YES. Article 1762: If both the common carrier (or even

Note: Doctrine of Contributory Negligence does not apply in criminal

private carrier) and passenger are negligent, but the negligence of

case

the passenger is the (immediate and) proximate cause of his

property/injury/homicide in order to avoid criminal liability.

for

reckless

imprudence

resulting

to

damage

to

33
GWP

Remedy of the accused: File civil case for damages against the
negligent another/3rd-party in order for the latter to contribute for the
damages that the accused paid to the victim

34
GWP