CHAPTER 4 – DEFENSES OF THE COMMON CARRIER

Kinds of Defenses
1. Totally bar recovery
2. Mitigate and/or limits liability
Proximate causation
Absence of causation as defense
- The passenger or the shipper has no burden of proving that his injury was caused by the negligent or
intentional act or omission of the carrier or his agents
- The common carrier may prove by way of defense that the loss or damage cannot be traced to any act of the
said carrier.
 The proximate cause is not any of the act or omission of the said carrier because he exercised
extraordinary diligence.

DEFENSES IN THE CARRIAGE OF GOODS DEFENSES IN CARRIAGE OF PASSENGERS

- Articles 1734, 1742, and 1743. - Exercise of extraordinary or utmost diligence

ARTICLE 1734. Common carriers are responsible
for the loss, destruction, or deterioration of the
goods, unless the same is due to any of the
following causes only:
1) Flood, storm, earthquake,
lightning, or other natural
disaster or calamity;
2) Act of the public enemy in war,
whether international or civil;
3) Act or omission of the shipper or
owner of the goods;
4) The character of the goods or
defects in the packing or in the
containers;
5) Order or act of competent
public authority.

- ARTICLE 1742. Even if the loss, destruction, or

deterioration of the goods should be caused by
the character of the goods, or the faulty nature
of the packing or of the containers, the common
carrier must exercise due diligence to forestall or
lessen the loss.

- ARTICLE 1743. If through the order of public

authority the goods are seized or destroyed, the
common carrier is not responsible, provided said
public authority had power to issue the order.

NOTES: - It is believed that defenses in Art. 1734 (except

- No other defense may be raised by the common
carrier in the carriage of goods.
- The enumeration is exclusive or a closed list.
- Carrier is liable if not one the following is -
present
4) may also be invoked against the passenger or
his heirs provided that utmost diligence is
exercised.

DEFENSES IN THE CARRIAGE OF GOODS

Fortuitous event (Art. 1734)
- Must be established to be the proximate cause of the loss
- Proximate and only cause
- It may involve events that involve human intervention.

 Requisites as a defense:
 1. The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with
his obligation, must be independent of the human will;
2. It must be impossible to foresee the event that constitutes the causo fortuito, or if it can be foresee, it
must be impossible to avoid;
3. The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal
manner;
4. The obligor (debtor) must be free from any participation in or the aggravation of the injury resulting to
the creditor.
Carrier’s participation
GR: Carrier will be excused from liability if the natural disaster is the proximate and only cause of the loss.
 Carrier must be free from any participation in causing the damage or injury.
RATIO: When the negligence of the carrier concurs with an act of God producing a loss, the carrier is not exempted
from liability.
- The act of God must be the sole cause.
Fire
- Considered as force majeure if cause by a natural calamity such as:
a. Public enemy;
b. Lightning;
c. Earthquake; or
d. Tempest

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;

a. Storm
- The presence of strong wind does not by itself justify the conclusion that there is a storm.
- There may be cases that strong winds may be unforeseeable.
b. Highjacking
- Common carrier is presumed to be at fault or to have acted negligently unless there is a proof of
extraordinary diligence on its part of the common carrier.
- Grave or irresistible threat, violence or force must be present and proven to exempt from liability.
c. Mechanical defects
- Carrier is liable to its passengers for damages caused by mechanical defects of the conveyance.
- Not fortuitous event because they are curable and preventable.
- No privity between the passenger and the manufacturer that is why the passenger cannot directly sue the
manufacturer.
- Carrier can still claim that mechanical defects may, in proper case, be considered caso fortuito if adequate
inspection is made.
e. Tire blowout
- Same rule with mechanical defects
Other Invalid defenses
1. Explosion
2. Presence of worm and rats
3. Water damage
4. Barratry
- Act committed by the master or crew of the ship for some unlawful or fraudulent purpose.

(2) Act of the public enemy in war, whether international or civil;

Public enemy
Def: The state against which the country is at war is the country of the carrier.
- Available to the carrier as defense under:
a. Civil Code
b. Carriage of Goods by Sea Act (COGSA)
  To be exempted:
1. Act of the public enemy must have been the proximate and only cause
2. Common carrier must exercise due diligence to prevent or minimize loss before, during and after
the performance of the act of the public enemy.
- Act of rebels against the government is not an act of a public enemy

(3) Act or omission of the shipper or owner of the goods;

(4) The character of the goods or defects in the packing or in the containers;
GR: Carrier is not liable if the loss occurs because of the inherent nature of the shipment provided:
a. Goods are received under protest; and
b. Defect must be duly noted in the bill of lading.
XPN: If the carrier accepts the goods knowing the fact of improper packing of the goods upon ordinary observation
 Also applicable to hand carried baggage.
 Defect – lack of something essential to completeness
 Inferior – poor quality, mediocre or second rate

(5) Order or act of competent public authority.

GR: Public authority who issued the order must be duly authorized to be exempted from liability.
XPN: Liable if public authority has
a. No authority to issue the subject order; or
b. Exceeded his authority.

DEFENSES IN THE CARRIAGE OF PASSENGERS

- Extraordinary diligence
Act of Employees
GR: Carrier is liable for the acts of its employees who may have acted:
a. Beyond the scope of their authority; or
b. In violation of the orders of the common carriers.

 Passenger has no duty to inquire

 Thefts of employees
- Captain shall be civilly liable to third persons for all the thefts committed by the crew, reserving the
right of action against the guilty party.
Acts of other passengers and third persons
GR: A common carrier is responsible for injuries caused by a passenger against other passengers if the common
carrier’s employee failed to exercise the diligence of a good of a family to prevent or stop the act or omission.

ACTS OR NEGLIGENCE OF THE SHIPPER OR THE PASSENGER

- Common carrier is not liable provided it is the proximate and only cause.
Contributory negligence of the shipper
- Contributing as a legal cause to the harm he has suffered
- Mitigates liability
- Defense of common carrier against negligent shipper or passenger:
a. Failure of the shipper to disclose the nature of the goods;
b. Improper marking or direction as to destination; or
c. Improper loading when he assumes such responsibility
Doctrine of Avoidable Consequences
 - Passenger is required to lessen the damage or injury
Assumption of risk
- Passengers must take such risks incident to the mode of travel
- Carriers are not insurers of the lives of their passengers.

Doctrine of the Last Clear Chance

- The negligence of both parties (in an accident) will not be considered proximate cause if the other
party has the last clear chance of avoiding injury.
- Cannot be applied against a passengers.
- Applicable in a suit between the owners and driver of colliding vehicles.

NOTICE OF CLAIM (Goods)

- An action for damages due to breach of contract, claimant must establish the following:
1. Existence of a perfected contract;
2. Breach thereof by the other contracting party, and
3. Damages which he/she sustained due to the breach.
Claim in overland transport and coastwise shipping
- Notice of a claim with the carrier within the period prescribed is a condition precedent for an action
against the carrier in overland transportation.
- Periods (Art. 366, Code of Commerce) to file a claim a claim for damage:
a. IMMEDIATELY if the damage is apparent; or
b. Within 24 hours from receipt of the merchandise if the damage is not apparent.
NOTE: No claim shall be admitted against the carrier with regard to the condition in which the goods
transported in the following circumstances:
1. After the periods mentioned have elapsed; or
2. Transportation charges have been paid
Notice of Claim Mandatory
GR: Non-filing bars recovery (within the periods prescribed)
- Condition precedent to the accrual of a right of action against the carrier for damages cause to the
merchandise.
- Non-filing will give no right of action against the carrier in favor of the shipper or consignee
- Purpose is to give the carrier an opportunity to ascertain whether the claim is a well-founded one
before the goods leave his hands with respect to damages which are observable upon the exterior of
the goods or of the packages in which they are contained and before the goods have been consumed
or their identity destroyed in case in which it is alleged that the damage has been discovered after the
goods were received by its consignee.
Commencement
GR: There must be delivery of the cargo by the career to the consignee at place of donation.

Not applicable to Misdelivery

- Limited to cases of claims for damages to goods actually turn over by the carrier and received by the
consignee
- No application when goods not delivered to the consignee.

Effect of stipulation
- Stipulation merely affects the shipper’s remedy and does not affect the liability of the carrier.
- Parties to a contract of carriage may fix by agreement a shorter time for the bringing of suit on a
claim for the loss of or damage to the shipment that that provided by the statute of limitations.
Waiver
GR: The carrier may waive that there must be a notice of claim.
 - Deemed waive if defendant failed to plead this defense in its answer to the complaint.
- Defense of absence of such notice cannot be raised for the first time at the trial or on appeal.
In case of doubt with respect to the condition of the goods transported
1. Examined by experts appointed by the parties
2. Third one appointed by the judicial authority in case of disagreement
- Results to be reduced in writing
3. Deposit merchandise in a safe warehouse by order of the judicial authority

 Requirement of submission of claim is to compel the consignee to make prompt demand for settlement of
alleged damages suffered by the goods while in transport

Notice of Claim (as to Damage) in COGSA

1. Immediately upon discharge of the goods if damage is apparent; or
2. Within 3 days from delivery if damage is not apparent.
NOTE:
- Period is not mandatory
- Failure to file a notice of claim is not a defense that is available to a common carrier in international
carriage of goods by sea.
Prescription:
I. In overland transportation and coastwise shipping
- Under the Civil Code:
a. 6 years if there is no written contract (Bill of Lading)
b. 10 years if there is a written contract (Bill of Lading)

II. International carriage of goods

- Within one (1) year from discharge of goods
- Shipper, consignee or legal holder of the bill may invoke the prescription period.
- Carrier and ship may use the defense of prescription if action is not brought within the period
prescribed.
- Prescription is not suspended by an extra-judicial demand because matters affecting transportation
of goods by sea should be decided in as short a time as possible.
- The one year period refers to loss of the cargo and not in:
a. Conversion or Misdelivery
b. Delay
- In case of collision and cargoes been saved, period starts from the date when to goods should have
been delivered and not from date of collision.
- Prescriptive period can be extended by agreement of the parties.

Prescription and Subrogation

- The insurer exercising the right of subrogation is also bound by the one year prescription period.
- What accrues at the time of payment of the insurer is the right of subrogation and not the cause of
action being pursued against the defendant.
- Subrogation gives the insurer the right to exercise the right of the insured to enforce the right
violated.
Notice of Claim and Prescription in Air Transportation
GR: No specific requirement for a notice of claim. Warsaw Convention applicable.
- Periods:
I. To file complaint with carrier within
 Three (3) days from receipt of baggage
 Seven (7) days in case of goods
 If delayed, 14 days after baggage was placed at the disposal of the passenger
NOTE: Notice must precede a suit for enforcement
 II. Prescription
 Two (2) years from date of arrival at the destination; or
 Date the aircraft ought to have arrived; or
 Date on which the transportation stopped.
Limiting stipulations
- Limits only the maximum amount fixed under the contract
- Requisites:
a. Reasonable and just under the circumstances
b. Fairly and freely agreed upon