DELSAN TRANSPORTATION

VS.
C & A CONSTRUCTION, INC.
G.R. no. 156034

October 1, 2003

Facts:
C & A construction, construct a deflector wall at the Vitas reclamation
Area in Tondo, Manila it was not formally turnover to National Housing
Authority though it was completed in 1994. On 12:00 midnight of October
20, 1994 Captain Demetrio T. Jusep of M/V Delsan Express receive a report
that that a typhoon was going to hit Manila after eight (8) hours. At 8:35 a.m.
he tried to seek shelter but it was already congested. At 10:00 a.m. Capt.
Jusep drop the anchor at the vicinity of Vitas mouth, the waves were already
reaching 8 to 10 feet. The ship was dragged by the wind toward the Napocor
power barge Capt. Jusep ordered a full stop of the vessel to avoid the
collision but when the engine was re-started, it hit the deflector wall
constructed by the respondent. P456,198.24 was the damaged cause by the
incident. C & A construction demanded payment of the damages from Capt.
Jusep but the latter refused to pay due to the cause of the incident was by a
fortuitous event. The trial court ruled that Captain Jusep was not guilty of
negligence in applying the emergency rule because it had taken
necessary precautions to avoid accident. The Court of Appeals reversed &
set aside the decision of the trial court. Captain Jusep was found guilty of
negligence in transferring the vessel only at 8:35 a.m. of October 21,1994
and held liable for damages in waiting until 8:35 a.m. before transfering the
vessel to sought shelter.
Issues:
(1) Whether or not Capt. Jusep was negligent.
(2) Whether or not the petitioner is solidarily liable under Art. 2180 of the
Civil Code for Quasi-Delict.
Held:
(1) The court finds Captain Jusep is guilty of negligence, the failure to take
immediate and appropriate action under the circumstances, despite the
knowledge that there is typhoon but he waited for the lapse of eight (8)
hours instead. Captain Jusep showed an inexcusable lack of care and caution
which an ordinary prudent person would have observed in the same

situation. The trial court erred in applying the emergency rule because the
danger where Captain Jusep found himself was caused by his own
negligence.
(2) The court finds the petitioner liable for the negligent act of Capt. Jusep.
Whenever an employees negligence causes damage to another, it instantly
arise a presumption that the employer failed to exercise the care and
diligence of supervision of his employee. In Fabre ,jr. v Court of Appeals held
that due diligence requires consistent compliance of rules & regulation for
the guidance and actual implementation of rules. But the petitioner fails to
give any evidence that its rule are strictly implemented and monitored in
compliance therewith petitioner is therefore liable for the negligent act of
Capt. Jusep. The amount of P 456, 198.27 due earn 6% interest per annum
from October 3, 1995 until the finality of the decision.

FIRST DIVISION

[G.R. No. 156034. October 1, 2003]

DELSAN
TRANSPORT
LINES,
INC., petitioner,
A CONSTRUCTION, INC., respondent.

vs.

&

DECISION
YNARES-SANTIAGO, J.:

Assailed in this petition for review under

the June 14, 2002 decision of the Court of
reversed the decision of the Regional Trial
No. 95-75565, and its November 7, 2002
reconsideration.
[1]

[2]

Rule 45 of the Revised Rules of Court are

Appeals in CA-G.R. CV No. 59034, which
Court of Manila, Branch 46, in Civil Case
resolution denying petitioners motion for
[3]

The undisputed facts reveal that respondent C & A Construction, Inc. was engaged
by the National Housing Authority (NHA) to construct a deflector wall at the Vitas
Reclamation Area in Vitas, Tondo, Manila. The project was completed in 1994 but it
was not formally turned over to NHA.
[4]

On October 9, 1994, M/V Delsan Express, a ship owned and operated by petitioner
Delsan Transport Lines, Inc., anchored at the Navotas Fish Port for the purpose of
installing a cargo pump and clearing the cargo oil tank. At around 12:00 midnight of
October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express received a report
from his radio head operator in Japan that a typhoon was going to hit Manila in about
eight (8) hours. At approximately 8:35 in the morning of October 21, 1994, Capt. Jusep
tried to seek shelter at the North Harbor but could not enter the area because it was
already congested. At 10:00 a.m., Capt. Jusep decided to drop anchor at the vicinity of
Vitas mouth, 4 miles away from a Napocor power barge. At that time, the waves were
already reaching 8 to 10 feet high. Capt. Jusep ordered his crew to go full ahead to
counter the wind which was dragging the ship towards the Napocor power barge. To
avoid collision, Capt. Jusep ordered a full stop of the vessel. He succeeded in avoiding
the power barge, but when the engine was re-started and the ship was maneuvered full
astern, it hit the deflector wall constructed by respondent. The damage caused by the
incident amounted to P456,198.24.
[5]

[6]

[7]

[8]

[9]

[10]

[11]

Respondent demanded payment of the damage from petitioner but the latter
refused to pay. Consequently, respondent filed a complaint for damages with the
Regional Trial Court of Manila, Branch 46, which was docketed as Civil Case No. 9575565. In its answer, petitioner claimed that the damage was caused by a fortuitous
event.
[12]

On February 13, 1998, the complaint filed by respondent was dismissed. The trial
court ruled that petitioner was not guilty of negligence because it had taken all the
necessary precautions to avoid the accident. Applying the emergency rule, it absolved
petitioner of liability because the latter had no opportunity to adequately weigh the best
solution to a threatening situation. It further held that even if the maneuver chosen by
petitioner was a wrong move, it cannot be held liable as the cause of the damage
sustained by respondent was typhoon Katring, which is an act of God.
[13]

On appeal to the Court of Appeals, the decision of the trial court was reversed and
set aside. It found Capt. Jusep guilty of negligence in deciding to transfer the vessel to
the North Harbor only at 8:35 a.m. of October 21, 1994 and thus held petitioner liable for
damages.
[14]

Hence, petitioner filed the instant petition contending that Capt. Jusep was not
negligent in waiting until 8:35 in the morning of October 21, 1994 before transferring the
vessel to the North Harbor inasmuch as it was not shown that had the transfer been
made earlier, the vessel could have sought shelter. It further claimed that it cannot be
held vicariously liable under Article 2180 of the Civil Code because respondent failed to
allege in the complaint that petitioner was negligent in the selection and supervision of
its employees. Granting that Capt. Jusep was indeed guilty of negligence, petitioner is
not liable because it exercised due diligence in the selection of Capt. Jusep who is a
duly licensed and competent Master Mariner.
[15]

[16]

[17]

The issues to be resolved in this petition are as follows (1) Whether or not Capt.
Jusep was negligent; (2) If yes, whether or not petitioner is solidarily liable under Article
2180 of the Civil Code for the quasi-delict committed by Capt. Jusep?
Article 2176 of the Civil Code provides that whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual relation between
the parties, is called a quasi-delict. The test for determining the existence of negligence
in a particular case may be stated as follows: Did the defendant in doing the alleged
negligent act use the reasonable care and caution which an ordinary prudent person
would have used in the same situation? If not, then he is guilty of negligence.
[18]

In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep was
negligent in deciding to transfer the vessel only at 8:35 in the morning of October 21,
1994. As early as 12:00 midnight of October 20, 1994, he received a report from his
radio head operator in Japan that a typhoon was going to hit Manila after 8 hours.
This, notwithstanding, he did nothing, until 8:35 in the morning of October 21, 1994,
when he decided to seek shelter at the North Harbor, which unfortunately was already
congested. The finding of negligence cannot be rebutted upon proof that the ship could
not have sought refuge at the North Harbor even if the transfer was done earlier. It is not
the speculative success or failure of a decision that determines the existence of
negligence in the present case, but the failure to take immediate and appropriate action
under the circumstances. Capt. Jusep, despite knowledge that the typhoon was to hit
Manila in 8 hours, complacently waited for the lapse of more than 8 hours thinking that
the typhoon might change direction. He cannot claim that he waited for the sun to rise
instead of moving the vessel at midnight immediately after receiving the report because
[19]

[20]

[21]

[22]

of the difficulty of traveling at night. The hour of 8:35 a.m. is way past
sunrise. Furthermore, he did not transfer as soon as the sun rose because, according to
him, it was not very cloudy and there was no weather disturbance yet.
[23]

[24]

When he ignored the weather report notwithstanding reasonable foresight of harm,

Capt. Jusep showed an inexcusable lack of care and caution which an ordinary prudent
person would have observed in the same situation. Had he moved the vessel earlier,
he could have had greater chances of finding a space at the North Harbor considering
that the Navotas Port where they docked was very near North Harbor. Even if the latter
was already congested, he would still have time to seek refuge in other ports.
[25]

[26]

The trial court erred in applying the emergency rule. Under this rule, one who
suddenly finds himself in a place of danger, and is required to act without time to
consider the best means that may be adopted to avoid the impending danger, is not
guilty of negligence, if he fails to adopt what subsequently and upon reflection may
appear to have been a better method, unless the danger in which he finds himself is
brought about by his own negligence. Clearly, the emergency rule is not applicable to
the instant case because the danger where Capt. Jusep found himself was caused by
his own negligence.
[27]

Anent the second issue, we find petitioner vicariously liable for the negligent act of
Capt. Jusep. Under Article 2180 of the Civil Code an employer may be held solidarily
liable for the negligent act of his employee. Thus

Art. 2180. The obligation imposed in Article 2176 is demandable not only for ones
own acts or omissions, but also for those of persons for whom one is responsible.
xxxxxxxxx
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.
xxxxxxxxx
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
Whenever an employees negligence causes damage or injury to another, there
instantly arises a presumption juris tantum that the employer failed to
exercise diligentissimi patris families in the selection (culpa in eligiendo) or supervision
(culpa in vigilando) of its employees. To avoid liability for a quasi-delict committed by his
employee, an employer must overcome the presumption by presenting convincing proof
that he exercised the care and diligence of a good father of a family in the selection and
supervision of his employee.
[28]

There is no question that petitioner, who is the owner/operator of M/V Delsan

Express, is also the employer of Capt. Jusep who at the time of the incident acted within
the scope of his duty. The defense raised by petitioner was that it exercised due
diligence in the selection of Capt. Jusep because the latter is a licensed and competent
Master Mariner. It should be stressed, however, that the required diligence of a good
father of a family pertains not only to the selection, but also to the supervision of
employees. It is not enough that the employees chosen be competent and qualified,
inasmuch as the employer is still required to exercise due diligence in supervising its
employees.
In Fabre, Jr. v. Court of Appeals, it was held that due diligence in supervision
requires the formulation of rules and regulations for the guidance of employees and the
issuance of proper instructions as well as actual implementation and monitoring of
consistent compliance with the rules. Corollarily, in Ramos v. Court of Appeals, the
Court stressed that once negligence on the part of the employees is shown, the burden
of proving that he observed the diligence in the selection and supervision of its
employees shifts to the employer.
[29]

[30]

In the case at bar, however, petitioner presented no evidence that it formulated

rules/guidelines for the proper performance of functions of its employees and that it
strictly implemented and monitored compliance therewith. Failing to discharge the
burden, petitioner should therefore be held liable for the negligent act of Capt. Jusep.
So also, petitioner cannot disclaim liability on the basis of respondents failure to
allege in its complaint that the former did not exercise due diligence in the selection and
supervision of its employees. In Viron Transportation Co., Inc. v. Delos Santos, it was
held that it is not necessary to state that petitioner was negligent in the supervision or
selection of its employees, inasmuch as its negligence is presumed by operation of
law. Allegations of negligence against the employee and that of an employer-employee
relation in the complaint are enough to make out a case of quasi-delict under Article
2180 of the Civil Code.
[31]

[32]

Considering that petitioner did not assail the damages awarded by the trial court, we
find no reason to alter the same. The interest imposed should, however, be
modified. In Eastern Shipping Lines, Inc. v. Court of Appeals, it was held that the rate
of interest on obligations not constituting a loan or forbearance of money is six percent
(6%) per annum. If the purchase price can be established with certainty at the time of
the filing of the complaint, the six percent (6%) interest should be computed from the
date the complaint was filed until finality of the decision. After the judgment becomes
final and executory until the obligation is satisfied, the amount due shall earn interest at
12% per year, the interim period being deemed equivalent to a forbearance of credit.
[33]

[34]

Accordingly, the amount of P456,198.27 due the respondent shall earn 6% interest
per annum from October 3, 1995 until the finality of this decision. If the adjudged
principal and the interest (or any part thereof) remain unpaid thereafter, the interest rate
shall be twelve percent (12%) per annum computed from the time the judgment
becomes final and executory until it is fully satisfied.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED. The June
14, 2002 decision of the Court of Appeals in CA-G.R. CV No. 59034 ordering petitioner
Delsan Transport Lines, Inc., to pay respondent C & A Construction, Inc., damages in
the amount of P456,198.27, plus P30,000.00 as attorneys fees, is AFFIRMED with the
MODIFICATION that the award of P456,198.27 shall earn interest at the rate of 6% per
annum from October 3, 1995, until finality of this decision, and 12% per annum
thereafter on the principal and interest (or any part thereof) until full payment.
SO ORDERED.
Vitug, and Carpio, JJ., concur.
Davide, Jr., C.J., (Chairman), no part; was former counsel of party.
Azcuna, J., on leave.

[1]

Rollo, p. 20, penned by Associate Justice Eloy R. Bello, Jr., and concurred in by Associate Justices
Godardo A. Jacinto and Rebecca De Guia-Salvador.

[2]

Rollo, p. 39, penned by Judge Artemio S. Tipon.

[3]

Rollo, p. 28.

[4]

Memorandum of Agreement between NHA and respondent, Annex A, Records, p. 81.

[5]

TSN, 9 July 1997, pp. 8-9.

[6]

Id., pp. 6-7, 25 and 43.

[7]

Id., pp. 43-44.

[8]

Id., pp. 5-6; 23 May 1997, p. 12.

[9]

TSN, 23 May 1997, pp. 13-19.

[10]

Id., pp. 18-19.

[11]

Exhibit D, Records, p. 98.

[12]

Answer, Records, p. 7.

[13]

Rollo, p. 44.

[14]

Rollo, p. 25.

[15]

Petition, Rollo, p. 14.

[16]

Reply, Rollo, pp. 72-73.

[17]

Petition, Rollo, p. 14.

[18]

Evangelista v. People, 374 Phil. 129, 143 (1999).

[19]

TSN, 9 July 1997, pp. 8-9.

[20]

TSN, 9 July 1997, pp. 6-7, 25 and 43.

[21]

Id., pp. 43-44.

[22]

Id., pp. 11-12 and 42-43.

[23]

Id., p. 42.

[24]

Id., pp. 14-16.

[25]

People v. De los Santos, G.R. No. 131588, 27 March 2001, 355 SCRA 415, 430, citing Picart v. Smith,
37 Phil. 809 (1918).

[26]

Id., pp. 15-16.

[27]

Mckee v. Intermediate Appellate Court, G.R. No. 68102, 16 July 1992, 517 SCRA 517, 540.

[28]

Light Rail Transit Authority v. Navidad, G.R. No. 145804, 6 February 2003; Metro Manila Transit
Corporation v. Court of Appeals, G. R. No. 141089, 1 August 2002, citing Pantranco North
Express, Inc. v. Baesa, G.R. Nos. 79050-51, 14 November 1989, 179 SCRA 384; Umali v.
Bacani, G.R. No. L- 40570, 30 January 1976, 69 SCRA 263.

[29]

328 Phil. 774, 786 (1996), citing Filamer Christian Institute v. Intermediate Appellate Court, G.R. No.
75112, 17 August 1992, 212 SCRA 637.

[30]

378 Phil. 1198, 1242 (1999).

[31]

G.R. No. 138296, 22 November 2000, 345 SCRA 509, 517.

[32]

Jose v. Court of Appeals, 379 Phil. 30, 46 (2000).

[33]

Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, 12 July 1994, 234 SCRA 78, 96.

[34]

Eastern Shipping Lines, Inc. v. Court of Appeals, supra, at p. 97.