Article 1744 (Agreement as to vigilance over goods less than extraordinary the common carrier presumed at fault/negligence unless
/negligence unless it proves that it
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
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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:
(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
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 (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
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(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?
(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
2.2. 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
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 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
1. The common carrier delayed in transporting the goods - without just cause
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?
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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
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
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
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 the goods for transport, nevertheless, the shipper did not really deliver the
goods to it hence, there is no contract of carriage
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.
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
4
Issue: In contract of carriage of goods, which law that primarily governs the
rights and obligations of common carriers?
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
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 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 non-
delivery 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 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?
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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 successor-in-
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,
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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?
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
6
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
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 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
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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
being the port of destination (viz., law of destination shall apply; primary law is
NCC, and suppletory are special laws)
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)
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(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
CHAPTER 3
Safety of PASSENGERS
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 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 open-dated
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
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 dated flight tickets so that at the end of the trip (i.e., Hongkong to
Manila) no more flight ticket would be left
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)
8
(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 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
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 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
9
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)
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
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 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
10
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
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
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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
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
11
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
Article 1756 (Presumption of fault/negligence in case of death/injuries of
passengers)
When passenger is injured/died, the common carrier is presumed at
fault/negligent unless it proved that it observed extraordinary diligence as
prescribed in Articles 1733 and 1755 (i.e., utmost diligence of a very cautious
person).
1. Negligence of the common carrier
(a) Negligence on the part of the operator of the common carrier
(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
Reason: Failure of the operator to observe due diligence in the selection
of its employee (Note: Road worthiness includes competent driver)
(b) Negligence on the part of the driver
(1) Unjustified speed
(2) Flagrant violation of elementary road courtesies
(3) Failure to properly signal
RA 4136 Section 44: The driver of any vehicle upon a highway, before
starting, stopping or turning from a direct (straight) line, shall first
GWP
 see that such movement (starting/stopping/turning) can be made in
safety, and if any pedestrian may be affected by such movement
(starting/stopping/turning), shall give a clearly audible signal by
sounding the horn, and whenever the operation of any other vehicle
approaching or following may be affected by such movement
(starting/stopping/turning), shall give a signal (e.g., signal light)
plainly visible to the driver of such other vehicles of the intention to
make such movement.
(4) Driver intoxication
(5) Overtaking another vehicle despite the other vehicle refused to give
way
(6) Overtaking another vehicle, but before doing so, failed to verify
whether another vehicle behind was also in the act of overtaking him
(7) Overtaking at a junction
(8) Conversing with another while driving
(c) Presumption of negligence on the part of the driver
(1) Accident happened at the time the driver was violating traffic rules
and regulations (Mallari, Sr. vs. Court of Appeals, 324 SCRA 147 [p.
116])
(2) Driver bumped the rear of another vehicle (Reason for the
presumption of negligence: Being behind, the driver has full control
and in the full position in avoiding collision)
(a) General rule: Driver bumping rear portion of another vehicle is
presumed at fault/negligence its exemption (Lambert vs. Heirs
of Ray Castillon, GR No. 160709, February 23, 2005)
Facts: Motorcycle driver after taking one/two bottles of beer, drove
his motorcycle at high speed without wearing helmet and was
following closely the jeepney. While following closely, the
jeepney driver slightly veered to his right for him to have space
allowance for him to park on the road shoulder and then the
motorcycle veered to the left (to pass the jeepney) but it was also
at that moment when jeepney driver made immediate sharp left
turn to make the final parking that resulted the motorcycle driver
bumped the side of the jeepney that led to his death
Issue No. 1: In lines of jurisprudence such as Raynera vs. Hiceta,
GR 120027, April 2l1, 1999 (p. 116), held that drivers of vehicles
"who bump the rear of another vehicle" are presumed at
fault/negligence - unless refuted by contrary evidence" now, is
this presumption applicable as against the M/C driver and in
favor of the jeepney driver?
Held: NO. In Raynera v. Hiceta (supra), the case also involved a
M/C driver travelling more than the regulated speed and bumped
the left rear portion of a truck at nighttime that was then
travelling straight in the highway within the regulated speed. The
truck loaded with metal sheets extended 2 feet on its left and 3
feet on its right, the truck had no tail lights installed but placed
two (2) tail lights 35 watts each on top of the loaded metal
sheets at any rate visible on the road, and truck was travelling
12
straight on the road when the M/C driver bumped the rear
portion of the truck. In that case, Supreme Court ruled that the
death of the M/C driver then driving more than the regulated
speed was solely attributable to his own negligence as he had full
control to avoid colliding the rear of the truck considering that
being behind the truck, he was in a position to observe the truck
in front of him that was then running within the regulated only at
20-30 KPH and hence, such that the M/C diver has the full
opportunity to avoid the collision. In the case of Raynera v.
Hiceta (supra), the truck did not make a sudden left turn unlike
in the case at bar (Lambert vs. Heirs of Ray Castillon, supra).
Thus, in the case at bar, the general rule that one who bump the
rear of the another vehicle is presumed at fault/negligent - is
sufficiently refuted by contrary evidence constituting the sudden
left turn made by jeepney driver which caused the M/C driver
collided the jeepney.
Issue No. 2: In the case at bar, is there contributory negligence on
the part of the M/C driver?
Held: YES. In contributory negligence, both the M/C driver and the
jeepney are negligent (i.e., the former in travelling at high speed
while following closely the jeepney, and the latter in suddenly
turning left) - but the negligent of the jeepney driver is the
immediate and proximate cause of the accident (Article 2179
NCC). (Note: In determining the immediate and proximate cause
of the accident, identify who between the negligence of the M/C
driver and the jeepney driver that is the last that immediately
followed the accident and in the case at bar, the last negligence
was the act of the jeepney driver in suddenly turning left that
made the M/C driver bumped its left rear portion).
Note: In Raynera vs. Hiceta (supra), there is no contributory
negligence was held on reason that the truck driver was traveling
within the regulated speed when suddenly the M/C driver
travelling at high speed even during nighttime, suddenly bumped
the rear portion of the truck. Thusly, the negligence belongs
solely against the M/C driver
2. Republic Act 4136 Section 41: Restrictions on overtaking and passing in
HIGHWAY (p. 117)
(a) The driver of a vehicle shall not drive to the left side of the center line of
a highway in overtaking UNLESS: The left side is clearly visible free of
oncoming traffic/vehicle for a sufficient distance ahead to (safely)
permit such overtaking or passing
(b) The driver of a vehicle shall not overtake or pass another vehicle (1)
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
highway is obstructed within a distance of 500 feet ahead - EXCEPT: On
a highway having two or more lanes in one direction
GWP
 HOWEVER: In the highway within a business or residential district
though with 2/more lanes in one direction, passing/overtaking is allowed
only on the right
3. Common carrier not liable due to fortuitous event/force majeure
(a) Article 1174 NCC: Fortuitous event/force majeure (defined)
Except in cases expressly specified by the law or agreement, or when the
nature of the obligation requires the assumption of risk - no person shall
be responsible for those events which could not be foreseen, 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 concurrence/participation of
negligence of, or aggravation by the common carrier)
(b) Gacal vs. Philippine Airlines, GR No. 55300, March 15, 1990 (p. 126)
Principle: In order for common carrier to be absolved from liability in
cases of force majeure/fortuitous event, the death/injury of passenger
must be caused exclusively by force majeure/fortuitous event -
without any concurrence/participation of negligence of or aggravation
by the common carrier. In other words, such injury/death/damage must be
exclusively caused by the fortuitous event/force majeure
Facts: As the Philippines was under the martial law regime, the security at
the airport was taken over by the military. However, MNLF rebels were
able to covertly aboard the airline with deadly firearms. MNLF rebels
hijacked the airline (PAL). While airline was on the ground, the military
took its operation that led to the liberation of the airline crews and
passengers though with collateral damages of injury and death of
passengers.
Issue: Is the proximate cause of the collateral damage due to force
majeure consisting of the grave or irresistible threat, violence or force of
the MNLF?
Held: No doubt YES
Issue: Considering that the collateral damage is due to force majeure, is
the common carrier liable?
Held: NO. In order to exempt a person (common carrier in the case at bar)
under Article 1174 NCC (this is fortuitous event but the Supreme Court
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 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 intervened (fortuitous event/force majeure) that rendered the
person (airline) impossible to perform his obligation in a normal manner,
(3) such event must either be unforeseeable, or though foreseeable
nevertheless inevitable, (4) the person (airline) must be free from
concurrence/participation in the negligence or aggravation of
death/injury of passenger or loss/damage of the goods (viz., such
injury/death/damage must be exclusively caused by the fortuitous
event/force majeure). In the case at bar, in order to determine whether
the common carrier is free from concurrence/participation in the
negligence or aggravation of the collateral damage - the basic issue is,
13
whose responsibility why the MNLF rebels were able to board the airline.
Here, the security in the airport is not of the responsibility of the common
carrier but by the military during the time that the Philippines was under
martial law regime
4. Negligence of common carrier - concurred with the fortuitous event/force
majeure (hence, common carrier is liable)
(a) Yobido vs. Court of Appeals, GR No. 113003, October 17, 1997 (p. 118)
Principle: It is settled that an accident caused either by defects in the
automobile parts - is not a caso fortuito that would exempt the carrier
from liability for damages
Issue: Whether explosion of a new tire is a fortuitous event?
Held: NO. Accident caused by defects in the common carrier is not
fortuitous event or force majeure. A fortuitous event is possessed 4
requisites. The first requisite, the breach of the obligation (i.e., not
bringing the passengers safely to his destination) must be independent of
the human will/agency (i.e., common carrier has no participation in the
breach of contract of carriage) is not complied with as there are human
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
manufacturing defects, or (b) that the new tire was properly mounted on
the vehicle, or (c) the fact that the tire is of a brand name noted for
quality, is conclusive that it could not explode within days use, or (d) the
sudden blowing-up, could have been caused by too much air pressure
coupled by overloading (Note: In another case, the Supreme Court also
ruled that the manufacturer is deemed agent of the common carrier and
the common carrier as principal so that negligence of agent is negligence
of common carrier)
(b) Bachelor Express Inc. vs. Court of Appeals, GR No. 85691, July 31, 1990
(p. 124)
Principle: In order for common carrier to be absolved from liability in
cases of force majeure/fortuitous event, the death/injury of passenger
must be caused exclusively by the force majeure/fortuitous event -
without any concurrence/participation of negligence of or aggravation
by the common carrier
Facts: A passenger at the rear portion, suddenly ran amuck and stabbed a
fellow passenger that caused commotion and panic among passengers
inside the bus and despite of which, the bus driver did not immediately
stop the bus. Before the driver finally stopped the bus, two passengers
already jump-off the bus while commotion was going on and found lying on
the road dead
Issue No. 1: Is the cause of the falling off the bus of the two (2) passengers
caused by force majeure?
Held: YES. The sudden running amuck of the fellow passenger triggered
the commotion/panic of the other passengers inside the bus as they
compete each other getting off the bus to avoid the fellow passenger
running amuck such that two (2) passengers jump-off the bus while the bus
was still running. This sudden act of the fellow passenger running amuck is
within the context of force majeure (not foreseen).
GWP
 Issue No. 2: Considering that the cause of the falling off the bus of two (2)
passengers caused by force majeure is the common carrier still liable?
Held: YES. In order for common carrier to be absolved from liability in
cases of force majeure/fortuitous event, the death/injury of passenger
must be caused exclusively by the force majeure/fortuitous event -
without any concurrence/participation/aggravation by the common
carrier. In the case at bar, the common carrier concurred/participated in
the cause of death of the 2 passengers due to negligence of not
immediately stop the bus at the time the commotion/panic started such
that the two (2) passengers would not have died had the driver immediately
stopped the bus then they jump-off the bus - and on that reason, the
common carrier breached its contract of carriage by not exercising utmost
diligence of a very cautious person in the safety of its passengers
(c) Calalas vs. Court of Appeals, GR No. 122039, May 31, 2000
Principle: Parking improperly would naturally put the common carrier into
foreseeing the danger resulting therefrom
Facts: The passenger jeepney was parked improperly (diagonal parking)
along the shoulder of the highway such that part of it occupying about two
(2) meters of the highway. On that juncture, the jeepney was bumped on
its rear causing injuries to its passenger
Issue: Is the bumping of the rear portion of the improperly parked
jeepney - deemed fortuitous event/force majeure?
Held: NO. In fortuitous event, the event must be unforeseeable (cannot be
foreseen), or though foreseeable nevertheless inevitable. Here, the jeepney
should have foreseen the danger of diagonal parking
5. Baliwag Transit, Inc. vs. Court of Appeals, GR No. 116110, May 15, 1996 (p.
121)
Principle: Article 1759: Common carriers are liable for the death/ injuries of
passengers through the negligence or willful acts of its employees - although
such employees may have (1) acted beyond the scope of their authority or
(2) acted in violation of the orders of the common carrier
Facts: The truck was parked along the shoulder of the highway, with a
kerosene lamp placed behind the truck visible within 100 meters away to serve
as warning device while the driver and its helper were then replacing a flat tire
when a bus (common carrier) who was then travelling at fast speed while
talking with another, bumped the parked truck
Issue No. 1: Is that kerosene lamp constitute substantial compliance of
Section 34 (g) of RA 4136 (Land Transportation and Traffic Code)?
Held: YES. Section 34 (g) of RA 4136 (Land Transportation and Traffic Code),
provides:
Lights and reflector when parked or disabled. Appropriate parking
lights or flares visible one hundred meters away shall be displayed at the
corner of the vehicle whenever such vehicle is parked on highways or in
places that are not well-lighted or, is placed in such manner as to
endanger passing traffic. Furthermore, every motor vehicle shall be
provided at all times with built-in reflectors or other similar warning
devices either pasted, painted or attached at its front and back which shall
likewise be visible at night at least one hundred meters away. No vehicle
14
not provided with any of the requirements mentioned in this subsection
shall be registered. (emphasis supplied)
The aforequoted law clearly allows the use not only of park lights and early
warning device such as reflectorized triangular plates variety but also flares
visible one hundred meters away (such as kerosene lamps)
Issue No. 2: As mentioned, before the accident, the bus driver was 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 (b) acted in
violation of the order of common carrier (i.e., a prior instruction to driver to
drive safely)?
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 employees -
although such employees may have acted x x x or in violation of the orders of
the common carriers.
Issue No. 3: Supposed the common carrier proved that t exercised diligence of a
good father of a family in the S/S of its employees such as the driver in this case
should the common carrier still liable?
Held: YES. But in culpa contractual such as contract of carriage, the liability
of common carrier is mitigated
Article 1757 (Obligation of common carrier to safely transport its passengers -
cannot be dispensed/mitigated by any agreement)
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
safety of passengers) - cannot be dispensed with or mitigated even by
stipulation/agreement, posting of notices, statements on tickets, or
otherwise (Exception: Article 1758)
Article 1758 (Gratuitous carriage of passenger; exception of Article 1757)
When a passenger is carried gratuitously, a stipulation/agreement limiting
(not eliminating) the common carrier's liability for negligence is valid (but
only ordinary negligence) - BUT NOT: For willful acts or gross negligence
Neither reduction of fare (hence, not gratuitous) would justify
limitation/mitigation of the common carrier's liability
Article 1759 (Common carrier is liable - even if its employee acted ultra vires
or if it proved diligence of good father of a family in the S/S of its employees)
Common carrier is liable for the death/injury to its passengers due to negligent
act or wilful act of its employee EVEN IF: Such employee (1) 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 mitigated)
Article 1760 (Limitation of liability under Article 1759 NCC)
The common carrier's liability under Article 1759 cannot be eliminated or
even limited by posting of notices, stipulation, statements on the tickets or
otherwise
Note: Exception as regards limitation of liability of common carrier: Article
1758 NCC: When passenger carried gratuitously, common carrier by
GWP
 stipulation/agreement can validly limit its liability for ordinary negligence
(but never eliminated)
1. Under Article 1744 NCC (in relation with Article 1745 NCC): x x x common
carrier and the shipper or owner limiting the liability of the former for the
loss, destruction, or deterioration of the GOODS to a degree less than
extraordinary diligence (not gross negligence) shall be valid
Question: Why is it that Article 1744 allows limiting liability of common carrier
over goods, but not on passengers pursuant to Article 1757?
Answer: It is obvious, the life of human being is at stake exception: Article
1758 (passenger carried gratuitously)
2. Some rules regarding common carrier carrying passengers gratuitously
(a) Common carriers liability (injury/death of passenger) for ordinary
negligence can be validly limited provided it is stipulated/agreed (but not
eliminated)
HERE: The common carrier is only to observe diligence good father of a
family (i.e., ordinary diligence) in the safety of its passenger
(b) Common carriers liability (injury/death of passenger) for ordinary
negligence cannot be limited
(1) A passenger carried gratuitously - but no stipulation/agreement as to
limitation of liability
(2) A passenger carried gratuitously due to his early age (e.g., a baby; or
1 to 5 years old) is deemed passenger but no stipulation/agreement
as to limitation of liability
(3) A stranger (i.e., not passenger; e.g., those selling foods who merely
hitch a ride) carried gratuitously is deemed a passenger but no
stipulation/agreement as to limitation of liability
(4) A public officer carried gratuitously (badge; free passage) is deemed a
passenger but no stipulation/agreement as to limitation of liability
(5) An employee of common carrier carried gratuitously though not
pursuant to his official duty but he rides by his own personal reason is
deemed a passenger but no stipulation/agreement as to limitation of
liability. Opinion: If such employee is carried gratuitously pursuant to
his official duty required by common carrier (e.g., conductor;
inspector), then he is not a passenger as there is no contract of
carriage hence, degree of diligence required of a common carrier
insofar as such employee is concerned is only ordinary diligence
Note: A limitation of common carriers liability on passengers carried
gratuitously is not allowed due to gross negligence, or willful act but only
ordinary negligence coupled with stipulation for limitation of liability in
any case, it can only be limited but not eliminated
3. Common carriers are liable for the death of or injuries to passengers through
the (ordinary/gross) negligence or willful acts of its employees, although such
employees may have (1) acted beyond the scope of their authority or (2)
acted in violation of the orders of the common carriers (Maranan vs. Perez,
GR No. L-22272, June 26, 1967; p. 130)
Principle/reason: The basis of its liability is the breached of contract of
carriage in safely bringing its passenger to his destination
15
Facts: The taxi driver out of personal reason (e.g., standing grudge), killed his
passenger
Issue: Is common carrier liable considering that its driver acted beyond his
authority and also in violation of the order of the common carrier and more
importantly, the killing was committed out of the personal reason of the driver?
Held: YES. Article 1759: Common carriers are liable for the death of or injuries
to passengers through the (ordinary/gross) negligence or willful acts 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
Reason: The common carriers breach of contract of carriage in bringing the
passenger safely to his destination
Note: In the case at bar, the Supreme Court also ruled that because the civil
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 contract of
carriage is between the common carrier and the passenger. However, the
common carrier after paying the heirs of the deceased passenger, may recover
from its driver either in the same civil action by a 3rd-party complaint, or in a
separate civil action. However, if the case filed should have been a criminal
case for homicide/murder with the civil aspect instituted therewith, then the
driver would have been primarily civilly liable (Article 100 RPC: Every person
criminally liable is also civilly liable), with the common carrier subsidiarily
liable when the driver is insolvent
Note: The same rule applies with security guard guarding the premises of the
LRT (common carrier) who killed/injured a passenger (who already paid his
fare) standing in a platform designated to await the arrival of the train
4. Reason for liability of common carrier under Article 1759 NCC (i.e., driver
acted beyond his authority or violated the order of the common carrier)
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
carrier proved that it exercised diligence of a good father of a family in the S/S
of his employees (e.g., driver; but will be mitigated)
Article 1761 (Duty of passenger in avoiding injury to himself)
The passenger must observe diligence of a good father of a family (ordinary
diligence not extraordinary) in order to avoid injury to himself
1. Negligence of passenger
(a) Isaac vs. A.L. Ammen Transportation, GR No. L-9671, August 23, 1957
Facts: Passenger extended his arm outside the window of the common
carrier to flick the ashes of his cigarette, which at that time, it happened a
pick-up truck in the opposite direction, negligently hit the common carrier
without fault of the latter causing injury to the passenger
Held: The common carrier is not liable for the injured passenger pursuant
to Article 1761 that a passenger must exercise ordinary diligence to avoid
injury to himself. However, the negligent pick-up truck is liable for its
negligence, although the passenger was held to be guilty of contributory
negligence in causing injury to himself (i.e., extending his arm outside the
window) but the proximate cause of his injury is that of the pick-up truck.
GWP
 Hence, there being contributory negligence, the liability of the pick-up truck
must be equitably reduced
2. When passenger committed negligence causing injury to himself
Read Article 1762 (regarding negligence of both the passenger and common
carrier)
Article 1762 (negligence of both the passenger and common carrier)
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, he
cannot recover damages (Article 2179) BUT: If negligence of the passenger is
only proximate cause (not immediate and proximate cause) to his injury, such
that the immediate and proximate still that of the common carrier, then the
passenger can still recover damages but mitigated (Note: There is
contributory negligence on the part of the plaintiff when either [1] the
immediate and proximate cause of his injury is his own negligence which he
cannot recover any damages; or [2] the negligence of plaintiff is only
proximate but not immediate, such that the immediate and proximate cause
of the injury of plaintiff still that of the defendant, then the plaintiff can still
recover damages but mitigated)
1. Contributory negligence under Article 1762 (by passenger) is a counterpart of
Article 1741 (by shipper/owner of the goods), which provides: If the shipper or
owner merely contributed to the loss, destruction or deterioration of the
goods, the proximate cause of such damage/loss being the negligence of the
common carrier, the common carrier shall be liable for damages but
equitably reduced
2. How to determine the amount of damages against the defendant (e.g.,
common carrier) in case of contributory negligence on the part of the
plaintiff (e.g., passenger)
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 proximate
cause of injury still that of the defendant (Syki vs. Begasa, GR No. 149149,
October 23, 2003; p. 131)
3. Proximate cause defined
It the natural and continuous sequence of events unbroken by any efficient
intervening which events caused damage/injury
4. Calalas vs. Court of Appeals, GR 122039, May 31, 2000 (p. 131)
Principle: Doctrine of Proximate Cause applies only in quasi-delict (no pre-
existing contract), and so such doctrine does not apply in favor of common
carrier as against its passenger - when the basis of the cause of action in a civil
case is grounded on Breach of Contract such as Contract of Carriage
Facts: Passenger took the extension seat at the back of a passenger jeepney
(common carrier) as the jeepney was already full of passengers inside. The
jeepney stopped to alight another passenger though improperly parked, so that
the Passenger has also to alight from the jeepney to give way to the alighting
passenger and while doing so, a truck hit the rear of the jeepney resulting to
the injury of the Passenger. The Passenger filed civil action for damages against
16
the jeepney for breach of contract of carriage for not bringing him safely to
his destination
Issue No. 1: The jeepney in its attempt to free itself from liability to the
Passenger, alleged that the proximate cause of the injury of the Passenger was
due to the negligence of the truck. Is the jeepney correct?
Held: NO. What the jeepney invoking is the Doctrine of Proximate Cause
against the truck causing injury to the Passenger. This is a misplaced argument.
Doctrine of Proximate Cause only applies when the parties have no pre-
existing contractual relation such as in cases for quasi delict. Remember
that the case filed by the Passenger is breach of contract of 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 jeepney, and this
contractual relation is governed by: (1) Insofar as carriage of goods is concerned,
Article 1733 (observance of common carrier of 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 1755 (observance of common carrier of utmost
diligence of very cautious person as regards the safety of the passenger), and
Article 1756 (presumption of fault/negligence when the passenger is
injured/died)
Issue No. 2: Against whom then the jeepney can apply the Doctrine of
Proximate Cause?
Held: Only against the truck under the quasi-delict there being no pre-
existing contractual relation between the jeepney and the truck - and not in
the civil action filed by the Passenger against the jeepney which is breach of
contract of carriage
Issue No. 2-A: What procedural remedy that the jeepney may undertake to
make the truck liable under quasi-delict to it?
Answer: The jeepney can make the truck liable in the same civil case for
breach of contract filed by the Passenger through 3rd-party complaint for
quasi delict, or jeepney can file a separate civil action also for quasi
delict
Issue No. 3: Under Article 1756, the common carrier is presumed at
fault/negligent when the passenger died/injured. Before this presumption arises
shifting burden of proof against the common carrier, what first need to be
proven by the passenger?
Held: The passenger only needs to prove two things, (1) the existence of
contract of carriage, and (2) that the passenger did not reach his destination
safely as he was injured/died
Issue No. 4: What need to be proven by the common carrier in order to
completely free itself from liability to tis passenger?
Held: Article 1756: Common carriers must prove that it observed extraordinary
diligence as defined in Arts. 1733 and 1755 NCC. Or, Article 1762: That the
immediate and proximate cause of the injury/death of the passenger was due
to his own negligence (Note: This is not contributory negligence because
there is contributory negligence only when the proximate cause of
injury/death was because of the passenger himself)
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 Issue No. 5: Did the jeepney prove that it observed extraordinary diligence in
the safety of the passenger-Victim as far as human care and foresight can
provide using utmost diligence of a very cautious person?
Held: NO. First, the jeepney was not properly parked, its rear portion being
exposed about two meters from the highway in a diagonal angle. Second,
jeepney took in more passengers than its allowed seating capacity
Issue No. 6: In another attempt of the jeepney in avoid liability, it invoked
Doctrine of Assumption of Risk considering that the Victim voluntarily took
the "extension seat", he therefore placed himself in a peril and thereby there
amounted to an implied assumption of risk?
Held: NO. If that contention of the jeepney is to be taken, then it is akin to
arguing that the injuries to the many victims of the tragedies in our seas
should not be compensated merely because those passengers ASSUMED a
greater risk of drowning by boarding an overloaded ferry (which in replete
cases decided by the Supreme Court, it held the vessel liable for damages)
Note: Surprisingly, the jeepney did not invoke Doctrine of Contributory
Negligence which is allowed under Article 1762 if only to mitigate its
liability
Issue No. 7: Is the bumping by the truck against the rear of the jeepney
constitutes caso fortuito (force majeure)?
Held: NO. A caso fortuito (fortuitous event) under Article 1174 is an event
which could not be foreseen, or which, though foreseen, was inevitable. The
jeepney driver should have foreseen the danger of parking his jeepney
diagonally with its body protruding two meters into the highway
5. Estacion vs. Bernardo, GR No. 144723, February 27, 2006
Facts: Noe boarded a passenger jeepney driven by jeepney driver owned by
jeepney owner. Noe hung on the left rear carrier of the jeepney considering
that jeepney is already full. Somewhere along the way, the jeepney stopped 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 brake,
hit the rear end portion of the jeepney where Noe was standing causing him
injury. Noe filed complaint with RTC civil case under quasi-delict against
truck driver and truck owner (i.e., there being no pre-existing contractual
relation). In the same civil case, truck owner and truck driver filed a third
party complaint against jeepney owner and jeepney driver (also for quasi
delict there being no pre-existing contract between them). The RTC rendered
its judgment finding truck owner and truck driver solidarily liable for
damages ruling that the proximate cause of the injury sustained by Noe was
the negligent truck driver who was driving at a fast speed with a faulty brake
when the accident happened. The CA affirmed in toto the decision RTC.
Issue No. 1: Was the truck driver negligent when it hit the rear of the jeepney
causing injury to Noe?
Held: YES. The truck driver was running at a fast speed proven by evidence
that only one of the trucks wheel skidded producing tire mark visibly printed
on the road by 48 feet length. The truck also had faulty brake system
considering that there was only one tire mark of the truck instead of two tire
marks on the road.
Issue No. 2: Who is therefore the proximate cause of the accident?
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Held: The truck driver (Note: Doctrine of Proximate Cause applies 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. 3: While it is true that the negligence of the truck driver was the
proximate cause of the accident the question is, did Noe also committed
contributory negligence?
Held: YES. Noes act of standing on the rear carrier of the jeepney exposing
himself to bodily injury is negligence per se (HENCE: Doctrine of Contributory
Negligence applies in both culpa contractual [e.g., breach of contract of
carriage] pursuant to Article 1762 NCC and quasi-delict pursuant to Article
2179 NCC (Note: Article 2179 applies both to culpa contractual and quasi-
delict). BUT: Remember that Doctrine of Proximate Cause applies only in
quasi-delict but not in culpa contractual [e.g., 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 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 safety of the passenger)
Issue No. 4: Is the jeepney driver also negligent?
Held: YES. The jeepney DRIVER in allowing his jeepney overloaded is in
violation of traffic rules and regulations particularly RA 4136 Article 3 Section 32
(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 employees (jeepney
driver) or in the supervision of his employee (jeepney driver), otherwise he is
solidarily liable with his jeepney driver pursuant to vicarious liability under
Article 2180
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 his
employees, then he is completely exonerated from any liability. The question
is, what quantum of evidence needed by the vehicle owner in proving the
required diligence of a good father of a family in the S/S of his employees?
Held: Vehicle owner must prove adequate and convincing proof - that he
observed diligence of a good father of a family in the selection and supervision
of his employees (Note: When there is juris tantum presumption, to rebut such
presumption, it requires contrary evidence by clear and convincing proof)
Issue No. 7: In proving exercise of diligence of a good father of family in the S/S
of employees what are to be proven by the owner of the vehicle?
Held: In the selection of employee, vehicle owner should not be satisfied only
with the applicants mere possession of a professional drivers license; he
must also carefully examine and verify the applicant for employment as to his
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qualifications (among which is possession professional 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 supervision of employee after
being selected, the vehicle owner make draft and implement training
programs and guidelines on road safety, require the employee to attend
periodic seminars on road safety and traffic efficiency
Issue No. 8: Considering that the truck owner, truck driver, jeepney owner
and jeepney driver are all negligent, to include also the contributory
negligence of Noe how much and how then should the damages be
contributed?
Held: The truck owner, truck driver, jeepney owner and jeepney driver shall be
solidarily liable to Noe but only for damages actually caused by them, and
Noe shall bear his own damages actually caused by himself (equitable
reduction of liability pursuant to the Doctrine of Contributory Negligence
committed by Noe [case to case basis]). In the case at bar, the Supreme Court
decided just like in the case of Anuran v. Buo, Batangas Laguna Tayabas Bus
Co. v. Intermediate Appellate Court, and Metro Manila Transit Corporation
v. Court of Appeals, the 20% of the damage must be born by Noe, and the 80%
of the damage must be solidarily born 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. Gutierrez, 56 Phil. 177: that in case of
injury to a passenger due to the 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 vehicles are jointly and severally liable for
damages.
(1) Personal observation in the case Calalas vs. Court of Appeals (supra) and
Estacion vs. Bernardo (supra)
(a) Why in Calalas vs. CA, the passenger is not liable for taking the
extension seat WHILE: In Estacion vs. Bernardo the passenger liable
for taking the left rear carrier of the jeepney?
Reason: In Calalas vs. CA, the passenger filed breach of contract of
carriage against the jeepney. The jeepney erroneously invoked
Doctrine of Proximate Cause against the passenger for taking the
extension seat which is applicable only in quasi-delict and not to
culpa contractual. Had the jeepney invoked Doctrine of Contributory
Negligence on reason that the passenger took the extension seat, then
it MAY have the chance to mitigate its liability provided the
proximate cause of the injury is because Noes own negligence BUT: If
the immediate and proximate cause of Noes injury is Noes own
negligence, then the jeepney owner is completely not liable (Article
2179). WHILE: In Estacion vs. Bernardo, the jeepney passenger filed
quasi-delict against the truck owner & driver who bumped the
jeepney where Doctrine of Proximate Cause is applicable. Note:
Doctrine of Contributory Negligence applies both in culpa
contractual (e.g., breach of contract of carriage) and quasi-delict
(2) Another case of contributory negligence on the part of passenger (Philippine
National Railways vs. Court of Appeals, GR No. L-55347, October 4, 1985)
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Facts: The passenger train was overcrowded that made the passenger sit on
the open platforms between the train coaches. The train did not 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 certain
passenger fell off, the train did not stop
Issue No. 1: Can the train invoke Doctrine of Contributory Negligence?
Held: YES. Such doctrine applies in breach of contract (e.g., breach of
contract of carriage; Note: Such doctrine also applies in quasi-delict)
Issue No. 2: Is the passenger guilty of contributory negligence?
Held: YES. While both the train and the passenger are negligent,
nevertheless, the proximate cause (i.e., not immediate and proximate
cause) of the death of the passenger is that of the passengers own
negligence in which case, the liability of the train shall be equitably
reduced (Article 1762 NCC)
6. Doctrines/principles which applies and/or do not apply to Breach of
Contract (e.g., contract of carriage) - where there pre-existing contractual
relation
(a) Doctrine of Proximate Cause
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
contractual relation between the plaintiff and defendant, and not to culpa
contractual (e.g., breached of contract of carriage)
(b) Doctrine of Res Ipsa Loquitur (applies both in culpa contractual and quasi-
delict)
(1) Huang vs. Philippine Hoteliers Inc., GR No. 180440, December 5,
2012
Res ipsa loquitur is a Latin phrase which literally means "the thing or
the transaction speaks for itself" (viz., evidence speaks for itself)
where there is no direct evidence proving negligence but there are
2/more circumstantial evidence proving facts that produces
presumption of negligence
Question: What is the use of Doctrine of Res Ipsa Loquitur?
Answer: There being no direct evidence to prove negligence, comes in
therefore circumstantial evidence to prove facts to establish res ipsa
loquitur
Question: If the Doctrine of Res Ipsa Loquitur is proven what legal
consequence it produces in relation to negligence?
Answer: It produces presumption of fault/negligence against the
defendant
(2) Requisites for the application of Doctrine of Res Ipsa Loquitur (FGU
Insurance Corp. vs. Eroles, GR No. 141910, August 6, 2002; p. 131)
Facts: Truck Owner is the exclusive hauler of the goods of the Shipper.
Truck Owner then transported the goods of the Shipper through its truck
driven by Truck Driver. While transporting, the truck met an accident
when it collided with unidentified vehicle causing damage to the
goods. The Insurer paid the Shipper as to the value of the goods
hence, the Insurer becomes the subrogee to the rights of the Shipper to
claim damages. The Insurer filed civil case for breach of contract of
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carriage against the Truck Owner and the Truck Driver. However,
the Insurer cannot produce direct evidence whether the Truck Driver is
negligent when it collided with another unidentified vehicle (e.g., no
witness to the vehicular accident between the truck and the
unidentified vehicle).
Issue No. 1: Is the Truck Owner a common carrier in order to be
presumed at fault/negligent (pursuant to Article 1735 NCC
[transportation of goods])?
Held: NO. The Truck Owner being an exclusive hauler of the Shipper,
offering its services to no other except the Shipper. Common carriers
transport goods for the public indiscriminately such that it 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 since it
offers its transportation service only to the Shipper THEREFORE: The
Truck Owner is a private carrier so that presumption of
fault/negligence does not apply
Issue No. 2: Considering that the Truck Owner is only a private carrier,
can there be any way that it can be presumed at fault/negligent?
Held: YES through the Doctrine of Res Ipsa Loquitur
Issue No. 3: Is the Doctrine of Res Ipsa Loquitur applies in case of civil
action for culpa contractual (in this case, breach of contract of
carriage)?
Held: YES and this is true whether the action is based on culpa
contractual or quasi-delict
Issue No. 4: In the case at bar particularly, does the Doctrine of Res
Ipsa Loquitur apply?
Held: NO. For the Doctrine to be applicable, there are four (4)
requisites: (1) there is no direct evidence proving negligence of the
defendant-Truck Driver, such as in the case at bar [in the case at bar,
no direct evidence as no witness to the collision between the truck and
the unidentified vehicle], (2) the event [that caused damage/injury]
does not ordinarily happen unless there is negligence [in the case at
bar, the damage/loss of goods could not ordinarily happened unless
there is negligence on the part of the defendant Truck Driver], (3) such
event (causing damage/injury) happened under the exclusive control of
the defendant without any kind of intervention of plaintiff/others/3rd
person, (4) such negligence is relevant to the defendants obligation
[in the case at bar, obviously relevant]. Now, in the case at bar, what
makes the Doctrine not applicable because of the absence of the 3rd
requisite such event (causing damage/injury) happened under the
exclusive control of the defendant [in this case the defendant Truck
Driver] without any kind of intervention of plaintiff/others/3rd person
because the event of collision that caused damage/loss to the goods is
not under the exclusive control of the defendant truck driver
considering the fact that in such event there is another party involved
and that is the unidentified vehicle with whom it collided with the
truck
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Issue No. 5: Considering that the insurer cannot invoke the Doctrine of
Res Ipsa Loquitur, is there any other way that the Truck Driver is
presumed at fault/negligence despite the fact that it is merely a
private carrier and even coupled with the fact that the insurer cannot
produce direct evidence to prove such negligence?
Held: YES. The Truck Owner having admitted that the goods been lost
or damaged WHILE in its custody hence, with such circumstances,
the Truck Driver is presumed at fault/negligent unless it proves
otherwise
Issue No. 6: Considering that the Insurer filed civil action for CULPA
CONTRACTUAL (breach of contract of carriage) against the Truck
Owner and Truck Driver the question is, can the Truck Driver be also
made liable in such Breach of Contract of Carriage?
Held: NO. Because under Article 1311 NCC, contract (in this case,
Contract of Carriage) only binds the parties therein and their
successors. In the case at bar, the contract only between the Truck
Owner and the Shipper (subrogated by Insurer as successor). Therefore,
the Truck Driver is stranger to the contract thereby not making him
liable to the civil case for breach of contract of carriage filed by
Insurer
(c) Doctrine of Last Clear Chance (applies only in quasi-delict)
(1) Doctrine of Last Clear Chance requisites (Picart vs. Smith, 37 Phil
809)
(a) Both parties are negligent but the negligence of one party is
succeeded by the other party
(b) The difference of time between such negligence of the parties is
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 but
despite of such chance/opportunity, the succeeding negligent party
fails to avoid the injury/accident
- IN WHICH CASE: The succeeding negligent party who was afforded
the last clear chance to avoid the impending injury/accident is fully
liable for damages (i.e., no mitigation of liability; viz., the prior
negligent party is not at all liable for his own negligence)
Question: What is then the difference between Doctrine of
Contributory Negligence and the Doctrine of Last Clear Chance
considering that both parties are negligent, and yet in the former, the
defendant is still liable though mitigated, and in the latter, the
defendant is fully liable without mitigation?
Opinion: In the Doctrine of Contributory Negligence, the negligence of
the defendant is immediate and proximate to the damage/injury
which makes the defendant liable but mitigated (hence, being
immediate, there is no appreciable interval of time in between the
negligence of both parties) WHILE: In the Doctrine of Last Clear
Chance, the negligence of the defendant is intervened by an
appreciable interval of time from that of the negligence of the
plaintiff which appreciable interval of time gave the defendant the
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 clear opportunity/chance to avoid the impending damage/injury but
he did not/failed. Hence, it is on this last clear opportunity given the
defendant but despite of which he failed to avoid the damage/injury -
that renders the defendant is liable for damages in full
(2) Tiu vs. Arriesgado, GR No. 138060, September 1, 2004
The Doctrine of Last Clear Chance does not apply to culpa
contractual (e.g., Breach of Contract of Carriage) but only to quasi
delict where there is no pre-existing contractual relation between
parties (Note: Same with the Doctrine of Proximate Cause which does
not also apply in culpa contractual but only in quasi-delict)
Question No. 1: Why the Doctrine of Last Clear Chance does not apply
to civil case for culpa contractual?
Answer: Remember what the plaintiff filed is civil case for culpa
contractual (e.g., breach of contract of carriage), the cause of action is
based on contract he has with the defendant. Hence, it would be
misplaced for the defendant to invoke the Doctrine of Last Clear Chance
which only applies in quasi-delict where there is no pre-existing
contract between the parties
ALSO: Remember that in Doctrine of Last Clear Chance both parties are
negligent though they have no pre-existing contractual relation, and
hence, if the plaintiff filed culpa contractual against the defendant
(e.g., breach of contract of carriage), it would be unfair against the
plaintiff for the defendant to exculpate himself from liability under
culpa contractual due to his own negligence by alleging the negligence
of another person supposedly the Doctrine of Last Clear Chance
considering that said another person is completely stranger to the
contract between the plaintiff and defendant
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
case for culpa contractual BECAUSE: If the defendant invoked the
Doctrine of Last Clear Chance due to the negligence of another, then
inevitably, the defendant admitted that he himself is negligent
HENCE: Suppose the injured plaintiff is the passenger of the common
carrier, and he filed breach of contract of carriage against the
common carrier due to negligence of its driver and in the same civil
case for breach of contract of carriage against the common carrier,
the common carrier cannot avoid his liability with its passenger by
invoking that the Doctrine of Last Clear Chance alleging negligence of
another vehicle as it would be inequitable for the common carrier to
invoke such Doctrine (i.e., both common carrier and the other vehicle
are negligence) to exempt itself from liability who 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,
20
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)
(d) Doctrine of Contributory Negligence (Article 2179 NCC; applicable in culpa
contractual [also in quasi-delict] - BUT NOT: In criminal [dolo/culpa] to
avoid criminal liability)
Article 2179 NCC: When the plaintiff's own negligence was the immediate
and proximate cause of his injury, he cannot recover damages. BUT: If
the plaintiffs negligence was only contributory, the immediate and
proximate cause of the injury still that of the defendant, then the plaintiff
can still recover damages but mitigated
(1) Syki vs. Begasa, GR 149149, October 23, 2003
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)
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,
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 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
(2) In criminal cases of criminal negligence, the Doctrine of
Contributory Negligence as regards either the victim or another
person - cannot be invoke by the accused in order to exculpate
himself from his CRIMINAL LIABILITY
(a) Genobiagon vs. People, GR L-40452, October 12, 1989 (accused
invoking the negligence of the victim; p. 133)
Facts: A reckless driver bumped a pedestrian who died as a result. A
criminal case for reckless imprudence resulting to homicide was
filed by heirs pedestrian (as private complainant) against the driver.
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
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(b) Manzanares vs. People, GR No. 153760-61, October 12, 2006 (the
accused invoking the negligence of another; p. 133)
Facts: Isuzu six-wheeler truck collided with passenger jeepney
resulting to the injuries of some of the passengers of the jeepney.
The passengers filed criminal case (reckless imprudence) against
the truck driver
Issue: Can the truck driver, in order to avoid criminal liability
to the passenger, invoke Doctrine of Contributory Negligence
on the part of the driver of the passenger jeepney?
Held: NO. "The defense of contributory negligence does not apply
in criminal cases committed through reckless imprudence, since
one cannot allege the negligence of another to evade the effects
of his own negligence.
Remedy of truck driver and its operator: File a separate civil case
against the jeepney and therein invoke the contributory negligence
of the jeepney driver
(3) In criminal cases of criminal negligence, the Doctrine of
Contributory Negligence as regards either the victim-pedestrian
(Genobiagon vs. People[supra]) or another person (Manzanares vs.
People [supra]) - cannot be invoke by the negligent-accused in order to
exculpate himself from his criminal liability
Question: The question is, in civil cases, in order to mitigate civil
liability, can the defendant invoke the Doctrine of Contributory
Negligence against the plaintiff-passenger or the plaintiff-3rd person?
(a) In breach of contract of carriage filed by negligent-passenger
against the negligent-vehicle (common/private carrier), can the
negligent-vehicle invoke the Doctrine against the negligent-
passenger?
Answer: YES. Article 1762: If both the common carrier (or even
private carrier) and passenger are negligent, but the negligence of
the passenger is the (immediate and) proximate cause of his
injury/death, he cannot recover damages (Article 2179) BUT: If
negligence of the common carrier is the (immediate and)
proximate cause, then the passenger can recover but mitigated
(here, there is contributory negligence on the part of the
passenger - liable only for those damages actually caused)
(b) In quasi-delict filed by negligent-plaintiff (e.g., pedestrian or
passenger of another vehicle) against the negligent-defendant, can
the negligent-defendant invoke the Doctrine against the negligent
plaintiff?
Answer: YES. Article 2179: When the plaintiff's own negligence was
the immediate and proximate cause of his injury, he cannot
recover damages. BUT: If the plaintiffs negligence was only
contributory (so that the immediate and proximate cause of the
injury is that of the defendant), then the plaintiff can still recover
damages but mitigated
(c) In a civil case for quasi-delict filed by non-negligent plaintiff
against negligent-defendant, can the negligent-defendant in the
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 same civil case invoke the Doctrine against the negligent of
another/3rd-party?
YES. The negligent-defendant can file 3rd-party complaint against
the negligent another/3rd-party (Estacion vs. Bernardo, GR No.
144723, February 27, 2006 [supra])
Note: Doctrine of Contributory Negligence does not apply in criminal
case for reckless imprudence resulting to damage to
property/injury/homicide in order to avoid criminal liability.
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

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