TORTS (BATCH 3)
SINGAPORE AIRLINES LIMITED vs. THE COURT OF
APPEALS and PHILIPPINE AIRLINES
G.R. No. 107356 March 31, 1995
ROMERO, J.:
Sancho Rayos was an overseas contract worker who had a
renewed contract with the Arabian American Oil Company
(Aramco) for the period covering April 16, 1980, to April 15,
1981. As part of Aramco's policy, its employees returning to
Dhahran, Saudi Arabia from Manila are allowed to claim
reimbursement for amounts paid for excess baggage of up to
50 kilograms, as long as it is properly supported by receipt. On
April 1980, Rayos took a Singapore Airlines (SIA) flight to
report for his new assignment, with a 50-kilogram excess
baggage for which he paid P4,147.50. Aramco reimbursed
said. amount upon presentation of the excess baggage ticket.
In December 1980, Rayos learned that he was one of several
employees being investigated by Aramco for fraudulent claims.
He immediately asked his wife Beatriz in Manila to seek a
written confirmation from SIA that he indeed paid for an excess
baggage of 50 kilograms. On December 10, 1980, SIA's
manager, Johnny Khoo, notified Beatriz of their inability to
issue the certification requested because their records showed
that only three kilograms were entered as excess and
accordingly charged. SIA issued the certification requested by
the spouses Rayos only on April 8, 1981, after its investigation
of the anomaly and after Beatriz, assisted by a lawyer,
threatened it with a lawsuit. On April 14, 1981, Aramco gave
Rayos his travel documents without a return visa. His
employment contract was not renewed.
On August 5, 1981, the spouses Rayos, convinced that SIA
was responsible for the non-renewal of Rayos' employment
contract with Aramco, sued it for damages. SIA claimed that it
was not liable to the Rayoses because the tampering was
committed by its handling agent, Philippine Airlines (PAL). It
then filed a third-party complaint against PAL. PAL, in turn,
countered that its personnel did not collect any charges for
excess baggage; that it had no participation in the tampering of
any excess baggage ticket; and that if any tampering was
made, it was done by SIA's personnel.
Judge Jesus O. Ibay of the Regional Trial Court of Manila,
Branch 30, rendered judgment on September 9, 1988, in favor
of the plaintiffs, the dispositive portion of which reads thus:
WHEREFORE, judgment is hereby rendered
in favor of the plaintiffs and against the
defendant Singapore Airlines Limited,
sentencing the latter to pay the former the
following:
1. The sum of Four Hundred Thirty
Thousand Nine Hundred Pesos and Eighty
Centavos (P430,900.80) as actual damages,
with interest at the legal rate from the date of
the filing of the complaint until fully paid.
2. The sum of Four Thousand One Hundred
Forty-Seven Pesos and Fifty Centavos
(P4,147.50) as reimbursement for the
amount deducted from Mr. Rayos' salary,
also with legal rate of interest from the filing
of the complaint until paid in full;
3. The sum of Fifty Thousand Pesos
(P50,000.00) as moral damages;
4. The sum equivalent to ten Per Cent (10th)
of the total amount due as and for attorney's
fees; and
5. The cost of suit.
The defendant's counterclaim is hereby
dismissed.
ON THE THIRD PARTY COMPLAINT, the
third-party defendant PAL is ordered to pay
defendant and third-party plaintiff SIA
whatever the latter has paid the plaintiffs.
SO ORDERED.
In so ruling, the court a quo concluded that the excess
baggage ticket of Rayos was tampered with by the employees
of PAL and that the fraud was the direct and proximate cause
of the non-renewal of Rayos' contract with Aramco.
All parties appealed to the Court of Appeals. SIA's appeal was
dismissed for non-payment of docket fees, which dismissal
was eventually sustained by this Court. The Rayos spouses
withdrew their appeal when SIA satisfied the judgment totaling
P802,435.34.
In its appeal, PAL claimed that the spouses Rayos had no valid
claim against SIA because it was the inefficiency of Rayos
which led to the non-renewal of his contract with Aramco, and
not the alleged tampering of his excess bagged ticket On the
other hand, SIA argued that the only issue in the said appeal is
whether or not it was entitled to reimbursement from PAL,
citing
the case of Firestone Tire and Rubber Company of the
Philippines v. Tempongko.1
The appellate court disagreed with SIA's contention that PAL
could no longer raise the issue of SIA's liability to the Rayoses
and opined "that SIA's answer to the complaint should inure to
the benefit of PAL, and the latter may challenge the lower
court's findings against SIA in favor of plaintiffs-appellees (the
Rayos spouses) for the purpose of defeating SIA's claim
against it, and not for the purpose of altering in any way the
executed judgment against SIA." In its answer to the main
complaint, SIA set up the defense that the excess baggage
ticket was indeed tampered with but it was committed by PAL's
personnel. On September 21, 1992, the appellate court
granted PAL's appeal and absolved it from any liability to SIA.
1

In this petition for review, SIA argues that PAL cannot validly
assail for the first time on appeal the trial court's decision
sustaining the validity of plaintiff's complaint against SIA if PAL
did not raise this issue in the lower court. It added that the
appellate court should have restricted its ruling on the right of
SIA to seek reimbursement from PAL, as this was the only
issue raised by SIA in its third-party complaint against PAL.
The instant appeal is impressed with merit.
The petitioner correctly pointed out that the case
of Firestone squarely applies to the case at bench. In said
case, the Court expounded on the nature of a third-party
complaint and the effect of a judgment in favor of the plaintiff
against the defendant and in favor of such defendant as third-
party plaintiff against, ultimately, the third-party defendant.
Speaking through then Justice and later Chief Justice Claudio
Teehankee, the Court stated:
The third-party complaint is, therefore, a
procedural device whereby a "third party"
who is neither a party nor privy to the act or
deed complained of by the plaintiff, may be
brought into the case with leave of court, by
the defendant, who acts as third-party
plaintiff to enforce against such third-party
defendant a right for contribution, indemnity,
subrogation or any other relief, in respect of
the plaintiff's claim. The third-party complaint
is actually independent of and separate and
distinct from the plaintiff's complaint. . . .
When leave to file the third-party complaint is
properly granted, the Court renders in effect
two judgments in the same case, one on the
plaintiff's complaint and the other on the
third-party complaint. When he finds
favorably on both complaints, as in this case,
he renders judgment on the principal
complaint in favor of plaintiff against
defendant and renders another judgment on
the third-party complaint in favor of
defendant as third-party plaintiff, ordering the
third-party defendant to reimburse the
defendant whatever amount said defendant
is ordered to pay plaintiff in the case. Failure
of any of said parties in such a case to
appeal the judgment as against him makes
such judgment final and executory. By the
same token, an appeal by one party from
such judgment does not inure to the benefit
of the other party who has not appealed nor
can it be deemed to be an appeal of such
other party from the judgment against him.
It must be noted that in the proceedings below, PAL disclaimed
any liability to the Rayoses and imputed the alleged tampering
to SIA's personnel. On appeal, however, PAL changed its
theory and averred that the spouses Rayos had no valid claim
against SIA on the around that the non-renewal of Sancho's
contract with Aramco was his unsatisfactory performance
rather than the alleged tampering of his excess baggage ticket.
In response to PAL's appeal, SIA argued that it was improper
TORTS (BATCH 3)
for PAL to question SIA's liability to the plaintiff, since this was
no longer an issue on account of the finality and, in fact,
satisfaction of the judgment.
Surprisingly, the appellate court ignored the Court's
pronouncements in Firestone and declared:
[T]here is nothing in the citation which would
suggest that the appellant cannot avail of the
defenses which would have been available
to the non-appealing party against the
prevailing party which would be beneficial to
the appellant. After all, PAL's liability here is
premised on the liability of SIA to plaintiffs-
appellees, In its own defense, it should have
the right to avail of defenses of SIA against
plaintiffs-appellees which would redound to
its benefit. This is especially true here where
SIA lost the capability to defend itself on the
technicality of failure to pay docket fee,
rather than on the merits of its appeal. To
hold otherwise would be to open the door to
a possible collusion between the plaintiff and
defendant which would leave the third-party
defendant holding the bag.
There is no question that a third-party defendant is allowed to
set up in his answer the defenses which the third-party plaintiff
(original defendant) has or may have to the plaintiff's claim.
There are, however, special circumstances present in this case
which preclude third-party defendant PAL from benefiting from
the said principle.
One of the defenses available to SIA was that the plaintiffs had
no cause of action, that is, it had no valid claim against SIA.
SIA investigated the matter and discovered that tampering
was, indeed, committed, not by its personnel but by PAL's. This
became its defense as well as its main cause of action in the
third-party complaint it filed against PAL. For its part, PAL
could have used the defense that the plaintiffs had no valid
claim against it or against SIA. This could be done indirectly by
adopting such a defense in its answer to the third-party
complaint if only SIA had raised the same in its answer to the
main complaint, or directly by so stating in unequivocal terms in
its answer to SIA's complaint that SIA and PAL were both
blameless. Yet, PAL opted to deny any liability which it imputed
to SIA's personnel. It was only on appeal — in a complete turn
around of theory — that PAL raised the issue of no valid claim
by the plaintiff against SIA. This simply cannot be allowed.
While the third-party defendant; would benefit from a victory by
the third-party plaintiff against the plaintiff, this is true only
when the third-party plaintiff and third-party defendant have
non-contradictory defenses. Here, the defendant and third-
party defendant had no common defense against the plaintiffs'
complaint, and they were even blaming each other for the
fiasco.
Fear of collusion between the third-party plaintiff and the
plaintiffs aired by the appellate court is misplaced if not totally
unfounded. The stand of SIA as against the plaintiffs' claim
was transparent from the beginning. PAL was aware of SIA's
2

defense, and if it was convinced that SIA should have raised
the defense of no valid claim by the plaintiffs, it should have so
stated in its answer as one of its defenses, instead of waiting
for an adverse judgment and raising it for the first time on
appeal.
The judgment, therefore, as far as the Rayoses and SIA are
concerned, has already gained finality. What remains to be
resolved, as correctly pointed out by petitioner, is whether it is
entitled to reimbursement from PAL, considering that PAL
appealed that part of the decision to the appellate court. This is
where the rule laid down in Firestone becomes applicable.
The trial court's decision, although adverse to SIA as
defendant, made PAL ultimately answerable for the judgment
by ordering the latter to reimburse the former for the entire
monetary award. On appeal, PAL tried to exonerate itself by
arguing that the Rayoses had no valid claim against SIA. From
PAL's viewpoint, this seemed to be the only way to extricate
itself from a mess which the court a quo ascribed to it. This
cannot, however, be allowed because it was neither raised by
SIA in its answer to the main complaint nor by PAL in its
answer to the third-party complaint. The prudent thing that PAL
should have done was to state in its answer to the third-party
complaint filed by SIA against it everything that it may
conceivably interpose by way of its defense, including specific
denials of allegations in the main complaint which implicated it
along with SIA.
The appellate court was in error when it opined that SIA's
answer inured to the benefit of PAL for the simple reason that
the complaint and the third-party complaint are actually two
separate cases involving the same set of facts which is allowed
by the court to be resolved in a single proceeding only to avoid
a multiplicity of actions. Such a proceeding obviates the need
of trying two cases, receiving the same or similar evidence for
both, and enforcing separate judgments therefor. This situation
is not, as claimed by the appellate court, analogous to a case
where there are several defendants against whom a complaint
is filed stating a common cause of action, where the answer of
some of the defendants inures to the benefit of those who did
not file an answer. While such a complaint speaks of a single
suit, a third-party complaint involves an action separate and
distinct from, although related to the main complaint. A third-
party defendant who feels aggrieved by some allegations in the
main complaint should, aside from answering the third-party
complaint, also answer the main complaint.
We do not, however, agree with the petitioner that PAL is
solely liable for the satisfaction of the judgment. While the trial
court found, and this has not been adequately rebutted by PAL,
that the proximate cause of the non-renewal of Rayos'
employment contract with Aramco was the tampering of his
excess baggage ticket by PAL's personnel, it failed to consider
that the immediate cause of such non-renewal was SIA's
delayed transmittal of the certification needed by Rayos to
prove his innocence to his employer.
SIA was informed of the anomaly in December 1980 but only
issued the certification four months later or, more specifically,
on April 8, 1981, a few days before the expiration of Rayos'
contract. Surely, the investigation conducted by SIA could not
TORTS (BATCH 3)
have lasted for four months as the information needed by the
Rayoses could easily be verified by comparing the duplicate
excess baggage tickets which they and their handling agent,
PAL, kept the record purposes. The fact that the Rayos
spouses had to be assisted by counsel who threatened to file a
damage suit against SIA if the certification they urgently
needed was not immediately issued only strengthens the
suspicion that SIA was not dealing with them in utmost good
faith. The effect of SIA's mishandling of Beatriz Rayos' request
became instantly apparent when her husband's contract was
not renewed in spite of his performance which was constantly
"highly regarded" by the manager of Aramco's equipment
services department.
Former Chief Justice and noted remedial law expert Manuel V.
Moran opined that "in an action upon a tort, the defendant may
file a third-party complaint against a joint tort-feasor for
contribution."2
The non-renewal of Rayos employment contract was the
natural and probable consequence of the separate tortious acts
of SIA and PAL. Under mandate of Article 2176 of the Civil
Code, Rayos is entitled to be compensated for such damages.
Inasmuch as the responsibility of two or more persons, or tort-
feasors, liable for a quasi-delict is joint and several,3 and the
sharing as between such solidary debtors is pro-rata,4 it is but
logical, fair, and equitable to require PAL to contribute to the
amount awarded to the Rayos spouses and already paid by
SIA, instead of totally indemnifying the latter.
WHEREFORE, the decision of the respondent Court of
Appeals in CA-G.R. CV No. 20488 dated September 21, 1992,
is hereby REVERSED and a new one is entered ordering
private respondent Philippine Airlines to pay, by way of
contribution, petitioner Singapore Airlines one-half (1/2) of the
amount it actually paid to Sancho and Beatriz Rayos in
satisfaction of the judgment in Civil Case No. 142252, dated
September 9, 1988.
SO ORDERED
[G.R. No. 130068. October 1, 1998]
FAR EASTERN SHIPPING COMPANY, petitioner,
vs. COURT OF APPELAS and PHILIPPINE PORTS
AUTHORITY, respondents.
[G.R. No. 130150. October 1, 1998]
MANILA PILOTS ASSOCIATION, petitioner, vs. PHILIPPINE
PORTS AUTHORITY and FAR EASTERN
SHIPPING COMPANY, respondents.
3

DECISION
REGALADO, J.:
These consolidated petitions for review on certiorari seek
in unison to annul and set aside the decision [1] of respondent
Court of Appeals of November 15, 1996 and its
resolution[2] dated July 31, 1997 in CA-G.R. CV No. 24072,
entitled Philippine Ports Authority, Plaintiff-Appellee vs. Far
Eastern Shipping Company, Senen C. Gavino and Manila
Pilots Association. Defendants-Appellants, which affirmed with
modification the judgment of the trial court holding the
defendants-appellants therein solidarily liable for damages in
favor of herein private respondent.
There is no dispute about the facts as found by the
appellate court, thus --
x x x On June 20, 1980, the M/V PAVLODAR, flying under the
flagship of the USSR, owned and operated by the Far Eastern
Shipping Company (FESC for brevitys sake), arrived at the
Port of Manila from Vancouver, British Columbia at about 7:00
oclock in the morning. The vessel was assigned Berth 4 of the
Manila International Port, as its berthing space. Captain
Roberto Abellana was tasked by the Philippine Port Authority
to supervise the berthing of the vessel. Appellant Senen
Gavino was assigned by the appellant Manila Pilots
Association (MPA for brevitys sake) to conduct docking
maneuvers for the safe berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and
stationed himself in the bridge, with the master of the vessel,
Victor Kavankov, beside him. After a briefing of Gavino by
Kavankov of the particulars of the vessel and its cargo, the
vessel lifted anchor from the quarantine anchorage and
proceeded to the Manila International Port. The sea was calm
and the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the
Tondo North Harbor) one-half mile from the pier, Gavino
ordered the engine stopped. When the vessel was already
about 2,000 feet from the pier, Gavino ordered the anchor
dropped. Kavankov relayed the orders to the crew of the vessel
on the bow. The left anchor, with two (2) shackles were
dropped. However, the anchor did not take hold as
expected. The speed of the vessel did not slacken. A
commotion ensued between the crew members. A brief
conference ensued between Kavankov and the crew
members. When Gavino inquired what was all the commotion
about, Kavankov assured Gavino that there was nothing of it.
After Gavino noticed that the anchor did not take hold, he
ordered the engines half-astern. Abellana, who was then on
the pier apron, noticed that the vessel was approaching the
pier fast. Kavankov likewise noticed that the anchor did not
take hold. Gavino thereafter gave the full-astern code. Before
the right anchor and additional shackles could be dropped, the
bow of the vessel rammed into the apron of the pier causing
considerable damage to the pier. The vessel sustained
damage too. (Exhibit 7-Far Eastern Shipping).Kavankov filed
his sea protest (Exhibit 1-Vessel). Gavino submitted his report
to the Chief Pilot (Exhibit 1-Pilot) who referred the report to the
TORTS (BATCH 3)
Philippine Ports Authority (Exhibit 2-Pilot) Abellana likewise
submitted his report of the incident (Exhibit B).
Per contract and supplemental contract of the Philippine Ports
Authority and the contractor for the rehabilitation of the
damaged pier, the same cost the Philippine Ports Authority the
amount of P1,126,132.25 (Exhibits D and E).[3]
On January 10, 1983, the Philippine Ports Authority (PPA,
for brevity), through the Solicitor General, filed before the
Regional Trial Court of Manila, Branch 39, a complaint for a
sum of money against Far Eastern Shipping Co., Capt. Senen
C. Gavino and the Manila Pilots Association, docketed as Civil
Case No. 83-14958,[4] praying that the defendants therein be
held jointly and severally liable to pay the plaintiff actual and
exemplary damages plus costs of suit. In a decision dated
August 1, 1985, the trial court ordered the defendants therein
jointly and severally to pay the PPA the amount
of P1,053,300.00 representing actual damages and the cost of
suit.[5]
The defendants appealed to the Court of Appeals and
raised the following issues: (1) Is the pilot of a commercial
vessel, under compulsory pilotage, solely liable for the damage
caused by the vessel to the pier, at the port of destination, for
his negligence? And (2) Would the owner of the vessel be
liable likewise if the damage is caused by the concurrent
negligence of the master of vessel and the pilot under a
compulsory pilotage?
As stated at the outset, respondent appellate court
affirmed the findings of the court a quo except that it found no
employer-employee relationship existing between herein
private respondents Manila Pilots Association (MPA, for short)
and Capt. Gavino.[6] This being so, it ruled instead that the
liability of MPA is anchored, not on Article 2180 of the Civil
Code, but on the provisions of Customs Administrative Order
No. 15-65,[7] and accordingly modified said decision of the trial
court by holding MPA, along with its co-defendants therein, still
solidarily liable to PPA but entitled MPA to reimbursement from
Capt. Gavino for such amount of the adjudged pecuniary
liability in excess of the amount equivalent to seventy-five
percent (75%) of its prescribed reserve fund.[8]
Neither Far Eastern Shipping Co. (briefly, FESC) nor
MPA was happy with the decision of the Court of Appeals and
both of them elevated their respective plaints to us via separate
petitions for review on certiorari.
In G.R. No. 130068, which was assigned to the Second
Division of this Court, FESC imputed that the Court of Appeals
seriously erred:
1. in not holding Senen C. Gavino and the Manila Pilots
Association as the parties solely responsible for the resulting
damages sustained by the pier deliberately ignoring the
established jurisprudence on the matter.
2. in holding that the master had not exercised the required
diligence demanded from him by the circumstances at the time
the incident happened;
4

3. in affirming the amount of damages sustained by the
respondent Philippine Ports Authority despite a strong and
convincing evidence that the amount is clearly exorbitant and
unreasonable;
4. in not awarding any amount of counterclaim prayed for by
the petitioner in its answer; and
5. in not granting herein petitioner's claim against pilot Senen
C. Gavino and Manila Pilots' Association in the event that it be
held liable.[9]
Petitioner asserts that since the MV PAVLODAR was
under compulsory pilotage at the time of the incident, it was a
compulsory pilot, Capt. Gavino, who was in command and had
complete control in the navigation and docking of the vessel. It
is the pilot who supersedes the master for the time being in the
command and navigation of a ship and his orders must be
obeyed in all respects connected with her
navigation. Consequently, he was solely responsible for the
damage caused upon the pier apron, and not the owners of the
vessel. It claims that the master of the boat did not commit any
act of negligence when he failed to countermand or overrule
the orders of the pilot because he didnot see any justifiable
reason to do so. In other words, the master cannot be faulted
for relying absolutely on the competence of the compulsory
pilot. If the master does not observe that a compulsory pilot is
incompetent or physically incapacitated, the master is justified
in relying on the pilot.[10]
Respondent PPA, in its comment, predictably in full
agreement with the ruling of respondent court on the solidary
liability of FESC, MPA and Capt. Gavino, stresses the
concurrent negligence of Capt. Gavino, the harbor pilot, and
Capt. Viktor Kabankov,* shipmaster of MV Pavlodar, as the
basis of their solidary liability for damages sustained by PPA. It
posits that the vessel was being piloted by Capt. Gavino with
Capt. Kabankov beside him all the while on the bridge of the
vessel, as the former took over the helm of MV Pavlodar when
it rammed and damaged the apron of the pier of Berth No. 4 of
the Manila International Port. Their concurrent negligence was
the immediate and proximate cause of the collision between
the vessel and the pier - Capt. Gavino, for his negligence in the
conduct of docking maneuvers for the safe berthing of the
vessel; and Capt. Kabankov, for failing to countermand the
orders of the harbor pilot and to take over and steer the vessel
himself in the face of imminent danger, as well as for merely
relying on Capt. Gavino during the berthing procedure.[11]
On the other hand, in G.R. No. 130150, originally
assigned to the Court's First Division and later transferred to
the Third Division, MPA, now as petitioner in this case, avers
the respondent court's errors consisted in disregarding and
misinterpreting Customs Administrative Order No. 15-65 which
limits the liability of MPA. Said pilots' association asseverates
that it should not be held solidarily liable with Capt. Gavino
who, as held by respondent court, is only a member, not an
employee, thereof. There being no employer-employee
relationship, neither can MPA be held liable for any vicarious
liability for the respective exercise of profession by its members
nor be considered a joint tortfeasor as to be held jointly and
severally liable.[12] It further argues that there was erroneous
reliance on Customs Administrative Order No. 15-65 and the
TORTS (BATCH 3)
constitution and by-laws of MPA, instead of the provisions of
the Civil Code on damages which, being a substantive law, is
higher in category than the aforesaid constitution and by-laws
of a professional organization or an administrative order which
bears no provision classifying the nature of the liability of MPA
for the negligence its member pilots.[13]
As for Capt. Gavino, counsel for MPA states that the
former had retired from active pilotage services since July 28,
1994 and has ceased to be a member of petitioner pilots'
association. He is not joined as a petitioner in this case since
his whereabouts are unknown.[14]
FESC's comment thereto relied on the competence of the
Court of Appeals in construing provisions of law or
administrative orders as basis for ascertaining the liability of
MPA, and expressed full accord with the appellate court's
holding of solidary liability among itself, MPA and Capt.
Gavino. It further avers that the disputed provisions of Customs
Administrative Order No. 15-65 clearly established MPA's
solidary liability.[15]
On the other hand, public respondent PPA, likewise
through representations by the Solicitor General, assumes the
same supportive stance it took in G.R. No. 130068 in declaring
its total accord with the ruling of the Court of Appeals that MPA
is solidarily liable with Capt. Gavino and FESC for damages,
and in its application to the fullest extent of the provisions of
Customs Administrative Order No. 15-65 in relation to MPA's
constitution and by-laws which spell out the conditions of and
govern their respective liabilities.These provisions are clear
and ambiguous as regards MPA's liability without need for
interpretation or construction. Although Customs Administrative
Order No. 15-65 is a mere regulation issued by an
administrative agency pursuant to delegated legislative
authority to fix details to implement the law, it is legally binding
and has the same statutory force as any valid statute.[16]
Upon motion[17] by FESC dated April 24, 1998 in G.R. No.
130150, said case was consolidated with G.R. No. 130068.[18]
Prefatorily, on matters of compliance with procedural
requirements, it must be mentioned that the conduct of the
respective counsel for FESC and PPA leaves much to be
desired, to the displeasure and disappointment of this Court.
Section 2, Rule 42 of the 1997 Rules of Civil
Procedure[19] incorporates the former Circular No. 28-91 which
provided for what has come to be known as the certification
against forum shopping as an additional requisite for petitions
filed with the Supreme Court and the Court of Appeals, aside
from the other requirements contained in pertinent provisions
of the Rules of Court therefor, with the end in view of
preventing the filing of multiple complaints involving the same
issues in the Supreme Court, Court of Appeals or different
divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2,
Rule 42 provides:
xxxxxxxxx
The petitioner shall also submit together with the petition a
certification under oath that he has not therefore commenced
any other action involving the same issues in the Supreme
Court, the Court of Appeals or different divisions thereof, or any
5

other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days
therefrom. (Italics supplied.)
For petitions for review filed before the Supreme Court, Section
4(e), Rule 45 specifically requires that such petition shall
contain a sworn certification against forum shopping as
provided in the last paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del
Rosario through its associate, Atty. Herbert A. Tria, is the
counsel of record for FESC in both G.R. No. 130068 and G.R.
No. 130150.
G.R. No. 130068, which is assigned to the Court's
Second Division, commenced with the filing by FESC through
counsel on August 22, 1997 of a verified motion for extension
of time to file its petition for thirty (30) days from August 28,
1997 or until September 27, 1997.[20] Said motion contained
the following certification against forum shopping [21] signed by
Atty. Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other
action or proceeding involving the same issues in the Supreme
Court, the Court of Appeals, or any other tribunal or agency;
that to the best of my own knowledge, no such action or
proceeding is pending in the Supreme Court, the Court of
Appeals, or any other tribunal or agency; that if I/we should
thereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, I/we undertake to
report that fact within five (5) days therefrom to this Honorable
Court.
This motion having been granted, FESC subsequently filed its
petition on September 26, 1997, this time bearing a
"verification and certification against forum-shopping" executed
by one Teodoro P. Lopez on September 24, 1997,[22] to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation to Section
2, Rule 42 of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn,
depose and state:
1. That I am the Manager, Claims Department of Filsov
Shipping Company, the local agent of petitioner in this case.
2. That I have caused the preparation of this Petition for
Review on Certiorari.
TORTS (BATCH 3)
3. That I have read the same and the allegations therein
contained are true and correct based on the records of this
case.
4. That I certify that petitioner has not commenced any other
action or proceeding involving the same issues in the Supreme
Court or Court of Appeals, or any other tribunal or agency, that
to the best of my own knowledge, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals or any
other tribunal or agency, that I should thereafter learn that a
similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or any other tribunal
or agency, I undertake to report the fact within five (5) days
therefrom to this Honorable Court. (Italics supplied for
emphasis.)
Reviewing the records, we find that the petition filed by
MPA in G.R. No. 130150 then pending with the Third Division
was duly filed on August 29, 1997 with a copy thereof furnished
on the same date by registered mail to counsel for
FESC.[23] Counsel of record for MPA, Atty. Jesus P. Amparo, in
his verification accompanying said petition dutifully revealed to
the Court that--
xxxxxxxxx
3. Petitioner has not commenced any other action or
proceeding involving the same issues in his Honorable Court,
the Court of Appeals or different Divisions thereof, or any other
tribunal or agency, but to the best of his knowledge, there is an
action or proceeding pending in this Honorable Court, entitled
Far Eastern Shipping Co., Petitioner, vs. Philippine Ports
Authority and Court of Appeals with a Motion for Extension of
time to file Petition for Review by Certiorari filed sometime on
August 18, 1997. If undersigned counsel will come to know of
any other pending action or claim filed or pending he
undertakes to report such fact within five (5) days to this
Honorable Court.[24] (Italics supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was
posted by registered mail on August 29, 1997 and taking
judicial notice of the average period of time it takes local mail to
reach its destination, by reasonable estimation it would be fair
to conclude that when FESC filed its petition in G.R. No.
130068 on September 26, 1997, it would already have
received a copy of the former and would then have knowledge
of the pendency of the other petition initially filed with the First
Division. It was therefore incumbent upon FESC to inform the
Court of that fact through its certification against forum
shopping. For failure to make such disclosure, it would appear
that the aforequoted certification accompanying the petition in
G.R. No. 130068 is defective and could have been a ground for
dismissal thereof.
Even assuming that FESC has not yet received its copy
of MPA's petition at the time it filed its own petition and
executed said certification, its signatory did state "that if I
should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
Appeals or any other tribunal or agency, I undertake to report
the fact within five (5) days therefrom in this Honorable
Court."[25] Scouring the records page by page in this case, we
find that no manifestation concordant with such undertaking
was then or at any other time thereafter ever filed by FESC nor
6

was there any attempt to bring such matter to the attention of
the Court. Moreover, it cannot feign non-knowledge of the
existence of such other petition because FESC itself filed the
motion for consolidation in G.R. No. 130150 of these two cases
on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm
of Del Rosario and Del Rosario, displays an unprofessional
tendency of taking the Rules for granted, in this instance
exemplified by its pro forma compliance therewith but
apparently without full comprehension of and with less than
faithful commitment to its undertakings to this Court in the
interest of just, speedy and orderly administration of court
proceedings.
As between the lawyer and the courts, a lawyer owes
candor, fairness and good faith to the court.[26] He is an officer
of the court exercising a privilege which is indispensable in the
administration of justice.[27] Candidness, especially towards the
courts, is essential for the expeditious administration of
justice. Courts are entitled to expect only complete honesty
from lawyers appearing and pleading before them.[28] Candor in
all dealings is the very essence of honorable membership in
the legal profession.[29] More specifically, a lawyer is obliged to
observe the rules of procedure and not to misuse them to
defeat the ends of justice.[30] It behooves a lawyer, therefore, to
exert every effort and consider it his duty to assist in the
speedy and efficient administration of justice. [31] Being an
officer of the court, a lawyer has a responsibility in the proper
administration of justice. Like the court itself, he is an
instrument to advance its ends -- the speedy, efficient,
impartial, correct and inexpensive adjudication of cases and
the prompt satisfaction of final judgments. A lawyer should not
only help attain these objectives but should likewise avoid any
unethical or improper practices that impede, obstruct or
prevent their realization, charged as he is with the primary task
of assisting in the speedy and efficient administration of
justice.[32]
Sad to say, the members of said law firm sorely failed to
observe their duties as responsible members of the Bar. Their
actuations are indicative of their predisposition to take lightly
the avowed duties of officers of the Court to promote respect
for law and for legal processes.[33] We cannot allow this state of
things to pass judicial muster.
In view of the fact that at around the time these petitions
were commenced, the 1997 Rules of Civil Procedure had just
taken effect, the Court treated infractions of the new Rules then
with relative liberality in evaluating full compliance
therewith. Nevertheless, it would do well to remind all
concerned that the penal provisions of Circular No. 28-91
which remain operative provides, inter alia:
3. Penalties.-
xxxxxxxxx
(c) The submission of a false certification under Par. 2 of the
Circular shall likewise constitute contempt of court, without
prejudice to the filing of criminal action against the guilty
party. The lawyer may also be subjected to disciplinary
proceedings.
TORTS (BATCH 3)
It must be stressed that the certification against forum
shopping ordained under the Rules is to be executed by the
petitioner, and not by counsel. Obviously it is the petitioner,
and not always the counsel whose professional services have
been retained for a particular case, who is in the best position
to know whether he or it actually filed or caused the filing of a
petition in that case. Hence, a certification against forum
shopping by counsel is a defective certification. It is clearly
equivalent to non-compliance with the requirement under
Section 2, Rule 42 in relation to Section 4, Rule 45, and
constitutes a valid cause for dismissal of the petition.
Hence, the initial certification appended to the motion for
extension of time to file petition n G.R. No. 130068 executed in
behalf of FESC by Atty. Tria is procedurally deficient. But
considering that it was a superfluity at that stage of the
proceeding, it being unnecessary to file such a certification with
a mere motion for extension, we shall disregard such error.
Besides, the certification subsequently executed by Teodoro P.
Lopez in behalf of FESC cures that defect to a certain extent,
despite the inaccuracies earlier pointed out. In the same vein,
we shall consider the verification signed in behalf of MPA by its
counsel, Atty. Amparo, in G.R. No. 130150 as substantial
compliance inasmuch as it served the purpose of the Rules of
informing the Court of the pendency of another action or
proceeding involving the same issues.
It bears stressing that procedural rules are instruments in
the speedy and efficient administration of justice. They should
be used to achieve such end and not to derail it.[34]
Counsel for PPA did not make matters any
better. Despite the fact that, save for the Solicitor General at
the time, the same legal team of the Office of the Solicitor
General (OSG, for short) composed of Assistant Solicitor
General Roman G. Del Rosario and Solicitor Luis F. Simon,
with the addition of Assistant Solicitor General Pio C. Guerrero
very much later in the proceedings, represented PPA
throughout the appellate proceedings in both G.R. No. 130068
and G.R. No. 130150 and was presumably fully acquainted
with the facts and issues of the case, it took the OSG an
inordinately and almost unreasonably long period of time to file
its comment, thus unduly delaying the resolution of these
cases. It took several changes of leadership in the OSG -- from
Silvestre H. Bello III to Romeo C. dela Cruz and, finally,
Ricardo P. Galvez -- before the comment in behalf of PPA was
finally filed.
In G.R. No. 130068, it took eight (8) motions for extension
of time totaling 210 days, a warning that no further extensions
shall be granted, and personal service on the Solicitor General
himself of the resolution requiring the filing of such comment
before the OSG indulged the Court with the long required
comment on July 10, 1998.[35] This, despite the fact that said
office was required to file its comment way back on November
12, 1997.[36] A closer scrutiny of the records likewise indicates
that petitioner FESC was not even furnished a copy of said
comment as required by Section 5, Rule 42. Instead, a copy
thereof was inadvertently furnished to MPA which, from the
point of view of G.R. No. 130068, was a non-party.[37] The OSG
fared slightly better in G.R. No. 130150 in that it took only six
(6) extensions, or a total of 180 days, before the comment was
finally filed.[38] And while it properly furnished petitioner MPA
with a copy of its comment, it would have been more desirable
and expedient in this case to have furnished its therein co-
7

respondent FESC with a copy thereof, if only as a matter of
professional courtesy.[39]
This undeniably dilatory disinclination of the OSG to
seasonably file required pleadings constitutes deplorable
disservice to the tax-paying public and can only be categorized
as censurable inefficiency on the part of the government law
office. This is most certainly professionally unbecoming of the
OSG.
Another thing that baffles the Court is why the OSG did
not take the initiative of filing a motion for consolidation in
either G.R. No. 130068 or G.R. No. 130150, considering its
familiarity with the background of the case and if only to make
its job easier by having to prepare and file only one
comment. It could not have been unaware of the pendency of
one or the other petition because, being counsel for
respondent in both cases, petitioner is required to furnish it with
a copy of the petition under pain of dismissal of the petition for
failure otherwise.[40]
Besides, in G.R. 130068, it prefaces its discussions thus -
- and anchoring thereat, or passing through rivers or straits
Incidentally, the Manila Pilots' Association (MPA), one of the
defendants-appellants in the case before the respondent Court
of Appeals, has taken a separate appeal from the said decision
to this Honorable Court, which was docketed as G.R. No.
130150 and entitled "Manila Pilots' Association, Petitioner,
versus Philippine Ports Authority and Far Eastern Shipping
Co., Respondents.[41]
Similarly, in G.R. No. 130150, it states -
Incidentally, respondent Far Eastern Shipping Co. (FESC) had
also taken an appeal from the said decision to this Honorable
Court, docketed as G.R. No. 130068, entitled "Far Eastern
Shipping Co. vs. Court of Appeals and Philippine Ports
Authority."[42]
We find here a lackadaisical attitude and complacency on
the part of the OSG in the handling of its cases and an almost
reflexive propensity to move for countless extensions, as if to
test the patience of the Court, before favoring it with the timely
submission of required pleadings.
It must be emphasized that the Court can resolve cases
only as fast as the respective parties in a case file the
necessary pleadings. The OSG, be needlessly extending the
pendency of these cases through its numerous motions for
extension, came very close to exhausting this Court's
forbearance and has regrettably fallen short of its duties as the
People's Tribune.
The OSG is reminded that just like other members of the
Bar, the canons under the Code of Professional Responsibility
apply with equal force on lawyers in government service in the
discharge of their official tasks.[43] These ethical duties are
rendered even more exacting as to them because, as
government counsel, they have the added duty to abide by the
policy of the State to promote a high standard of ethics in
public service.[44] Furthermore, it is incumbent upon the OSG,
as part of the government bureaucracy, to perform and
discharge its duties with the highest degree of professionalism,
TORTS (BATCH 3)
intelligence and skill[45] and to extend prompt, courteous and
adequate service to the public.[46]
Now, on the merits of the case. After a judicious
examination of the records of this case, the pleadings filed, and
the evidence presented by the parties in the two petitions, we
find no cogent reason to reverse and set aside the questioned
decision. While not entirely a case of first impression, we shall
discuss the issues seriatim and, correlatively by way of a
judicial once-over, inasmuch as the matters raised in both
petitions beg for validation and updating of well worn maritime
jurisprudence. Thereby, we shall write finisto the endless
finger-pointing in this shipping mishap which has been
stretched beyond the limits of judicial tolerance.
The Port of Manila is within the Manila Pilotage District
which is under compulsory pilotage pursuant to Section 8,
Article III of Philippine Ports Authority Administrative Order No.
03-85,[47] which provides that:
SEC. 8. Compulsory Pilotage Service.- For entering a harbor
within a pilotage district, as well as docking and undocking at
any pier/wharf, or shifting from one berth or another, every
vessel engaged in coastwise and foreign trade shall be under
compulsory pilotage. x x x
In case of compulsory pilotage, the respective duties and
responsibilities of the compulsory pilot and the master have
been specified by the same regulation in this wise:
SEC. 11. Control of vessels and liability for damage. - On
compulsory pilotage grounds, the Harbor Pilot, providing the
service to a vessel shall be responsible for the damage caused
to a vessel or to life and property at ports due to his negligence
or fault. He can only be absolved from liability if the accident is
caused by force majeure or natural calamities provided he has
exercised prudence and extra diligence to prevent or minimize
damage.
The Master shall retain overall command of the vessel even on
pilotage grounds whereby he can countermand or overrule the
order or command of the Harbor Pilot on board.In such event,
any damage caused to a vessel or to life and property at ports
by reason of the fault or negligence of the Master shall be the
responsibility and liability of the registered owner of the vessel
concerned without prejudice to recourse against said Master.
Such liability of the owner or Master of the vessel or its pilots
shall be determined by competent authority in appropriate
proceedings in the light of the facts and circumstances of each
particular case.
SEC. 32. Duties and responsibilities of the Pilot or Pilots'
Association. - The duties and responsibilities of the Harbor
Pilot shall be as follows:
xxxxxxxxx
f) a pilot shall be held responsible for the direction of a vessel
from the time he assumes his work as a pilot thereof until he
leaves it anchored or berthed safely; Provided, however, that
8

his responsibility shall cease at the moment the Master
neglects or refuses to carry out his order.
Customs Administrative Order No. 15-65 issued twenty
years earlier likewise provided in Chapter I thereof for the
responsibilities of pilots:
Par. XXXIX. - A Pilot shall be held responsible for the direction
of a vessel from the time he assumes control thereof until he
leaves it anchored free from shoal; Provided, That his
responsibility shall cease at the moment the master neglects or
refuses to carry out his instructions.
xxxxxxxxx
Par. XLIV. - Pilots shall properly and safely secure or anchor
vessels under their control when requested to do so by the
master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious
error in not holding MPA and Capt. Gavino solely responsible
for the damages caused to the pier. It avers that since the
vessel was under compulsory pilotage at the time with Capt.
Gavino in command and having exclusive control of the vessel
during the docking maneuvers, then the latter should be
responsible for damages caused to the pier.[48] It likewise holds
the appellate court in error for holding that the master of the
ship, Capt. Kabankov, did not exercise the required diligence
demanded by the circumstances.[49]
We start our discussion of the successive issues bearing
in mind the evidentiary rule in American jurisprudence that
there is a presumption of fault against a moving vessel that
strikes a stationary object such as a dock or navigational aid. In
admiralty, this presumption does more than merely require the
ship to go forward and produce some evidence on the
presumptive matter. The moving vessel must show that it was
without fault or that the collision was occasioned by the fault of
the stationary object or was the result of inevitable accident. It
has been held that such vessel must exhaust every reasonable
possibility which the circumstances admit and show that in
each, they did all that reasonable care required.[50] In the
absence of sufficient proof in rebuttal, the presumption of fault
attaches to a moving vessel which collides with a fixed object
and makes a prima facie case of fault against the
vessel.[51] Logic and experience support this presumption:
The common sense behind the rule makes the burden a heavy
one. Such accidents simply do not occur in the ordinary course
of things unless the vessel has been mismanaged in some
way. It is not sufficient for the respondent to produce witnesses
who testify that as soon as the danger became apparent
everything possible was done to avoid an accident. The
question remains, How then did the collision occur? The
answer must be either that, in spite of the testimony of the
witnesses, what was done was too little or too late or, if not,
then the vessel was at fault for being in a position in which an
unavoidable collision would occur.[52]
TORTS (BATCH 3)
The task, therefore, in these cases is to pinpoint who was
negligent - the master of the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and
licensed, to conduct a vessel into or out of ports, or in certain
waters. In a broad sense, the term "pilot" includes both (1)
those whose duty it is to guide vessels into or out of ports, or in
particular waters and (2) those entrusted with the navigation of
vessels on the high seas.[53] However, the term "pilot" is more
generally understood as a person taken on board at a
particular place for the purpose of conducting a ship through a
river, road or channel, or from a port.[54]
Under English and American authorities, generally
speaking, the pilot supersedes the master for the time being in
the command and navigation of the ship, and his orders must
be obeyed in all matters connected with her navigation. He
becomes the master pro hac vice and should give all directions
as to speed, course, stopping and reversing, anchoring, towing
and the like. And when a licensed pilot is employed in a place
where pilotage is compulsory, it is his duty to insist on having
effective control of the vessel, or to decline to act as
pilot. Under certain systems of foreign law, the pilot does not
take entire charge of the vessel, but is deemed merely the
adviser of the master, who retains command and control of the
navigation even on localities where pilotage is compulsory. [55]
It is quite common for states and localities to provide for
compulsory pilotage, and safety laws have been enacted
requiring vessels approaching their ports, with certain
exceptions, to take on board pilots duly licensed under local
law. The purpose of these laws is to create a body of seamen
thoroughly acquainted with the harbor, to pilot vessels seeking
to enter or depart, and thus protect life and property from the
dangers of navigation.[56]
In line with such established doctrines, Chapter II of
Customs Administrative Order No. 15-65 prescribes the rules
of compulsory pilotage in the covered pilotage districts, among
which is the Manila Pilotage District, viz. --
PARAGRAPH I. - Pilotage for entering a harbor and
anchoring thereat, as well as docking and undocking in any
pier or shifting from one berth to another shall be compulsory,
except Government vessels and vessels of foreign
governments entitled to courtesy, and other vessels engaged
solely in river or harbor work, or in a daily ferry service between
ports which shall be exempt from compulsory pilotage
provisions of these regulations: provided, however, that
compulsory pilotage shall not apply in pilotage districts whose
optional pilotage is allowed under these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV
Pavlodar into Berth 4 of the Manila International Port. Upon
assuming such office as compulsory pilot, Capt. Gavino is held
to the universally accepted high standards of care and
diligence required of a pilot, whereby he assumes to have skill
and knowledge in respect to navigation in the particular waters
over which his license extends superior to and more to be
trusted than that of the master.[57] A pilot should have a
thorough knowledge of general and local regulations and
physical conditions affecting the vessel in his charge and the
waters for which he is licensed, such as a particular harbor or
river. He is not held to the highest possible degree of skill and
9

care, but must have and exercise the ordinary skill and care
demanded by the circumstances, and usually shown by an
expert in his profession.Under extraordinary circumstances, a
pilot must exercise extraordinary care.[58]
In Atlee vs. The Northwestern Union Packet
Company,[59] Mr. Justice Miller spelled out in great detail the
duties of a pilot:
x x x (T)he pilot of a river steamer, like the harbor pilot, is
selected for his personal knowledge of the topography through
which he steers his vessel. In the long course of a thousand
miles in one of these rivers, he must be familiar with the
appearance of the shore on each side of the river as he goes
along. Its banks, towns, its landings, its houses and trees, are
all landmarks by which he steers his vessel. The compass is of
little use to him. He must know where the navigable channel is,
in its relation to all these external objects, especially in the
night. He must also be familiar with all dangers that are
permanently located in the course of the river, as sand-bars,
snags, sunken rocks or trees or abandoned vessels or
barges. All this he must know and remember and avoid. To do
this, he must be constantly informed of the changes in the
current of the river, of the sand-bars newly made, of logs or
snags, or other objects newly presented, against which his
vessel might be injured.
xxxxxxxxx
It may be said that this is exacting a very high order of
ability in a pilot. But when we consider the value of the lives
and property committed to their control, for in this they are
absolute masters, the high compensation they receive, the
care which Congress has taken to secure by rigid and frequent
examinations and renewal of licenses, this very class of skill,
we do not think we fix the standard too high.
Tested thereby, we affirm respondent court's finding that
Capt. Gavino failed to measure up to such strict standard of
care and diligence required of pilots in the performance of their
duties. Witness this testimony of Capt. Gavino:
Court:
You have testified before that the reason why the
vessel bumped the pier was because the anchor was
not released immediately or as soon as you have
given the order. Do you remember having stated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to
understand that is that anchor was released
immediately at the time you gave the order, the
incident would not have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my
part because there was a commotion between the
officers who are in charge of the dropping of the
anchor and the captain. I could not understand their
TORTS (BATCH 3)
language, it was in Russian, so I presumed the
anchor was not dropped on time.
Q So, you are not sure whether it was really dropped on
time or not?
A I am not sure, your Honor.
xxxxxxxxx
Q You are not even sure what could have caused the
incident. What factor could have caused the incident?
A Well, in this case now, because either the anchor was not
dropped on time or the anchor did not hold, that was
the cause of the incident, your Honor.[60]
It is disconcertingly riddled with too much incertitude and
manifests a seeming indifference for the possibly injurious
consequences his commands as pilot may have.Prudence
required that he, as pilot, should have made sure that his
directions were promptly and strictly followed. As correctly
noted by the trial court -
Moreover, assuming that he did indeed give the
command to drop the anchor on time, as pilot he should have
seen to it that the order was carried out, and he could have
done this in a number of ways, one of which was to inspect the
bow of the vessel where the anchor mechanism was
installed. Of course, Captain Gavino makes reference to a
commotion among the crew members which supposedly
caused the delay in the execution of the command. This
account was reflected in the pilot's report prepared four hours
later, but Capt. Kavankov, while not admitting whether or not
such a commotion occurred, maintained that the command to
drop anchor was followed "immediately and precisely." Hence,
the Court cannot give much weight or consideration to this
portion of Gavino's testimony."[61]
An act may be negligent if it is done without the
competence that a reasonable person in the position of the
actor would recognize as necessary to prevent it from creating
an unreasonable risk of harm to another. [62] Those who
undertake any work calling for special skills are required not
only to exercise reasonable care in what they do but also
possess a standard minimum of special knowledge and
ability.[63]
Every man who offers his services to another, and is
employed, assumes to exercise in the employment such skills
he possesses, with a reasonable degree of diligence. In all
these employments where peculiar skill is requisite, if one
offers his services he is understood as holding himself out to
the public as possessing the degree of skill commonly
possessed by others in the same employment, and if his
pretensions are unfounded he commits a species of fraud on
every man who employs him in reliance on his public
profession.[64]
Furthermore, there is an obligation on all persons to take
the care which, under ordinary circumstances of the case, a
reasonable and prudent man would take, and the omission of
that care constitutes negligence.[65] Generally, the degree of
care required is graduated according to the danger a person or
property attendant upon the activity which the actor pursues or
the instrumentality which he uses. The greater the danger the
10

greater the degree of care required. What is ordinary under
extraordinary of conditions is dictated by those conditions;
extraordinary risk demands extraordinary care. Similarly, the
more imminent the danger, the higher the degree of care. [66]
We give our imprimatur to the bases for the conclusion of
the Court of Appeals that Capt. Gavino was indeed negligent in
the performance of his duties:
xxxxxxxxx
x x x As can be gleaned from the logbook, Gavino
ordered the left anchor and two (2) shackles dropped at 8:30
o'clock in the morning. He ordered the engines of the vessel
stopped at 8:31 o'clock. By then, Gavino must have realized
that the anchor did not hit a hard object and was not clawed so
as to reduce the momentum of the vessel. In point of fact, the
vessel continued travelling towards the pier at the same
speed. Gavino failed to react. At 8:32 o'clock, the two (2)
tugboats began to push the stern part of the vessel from the
port side but the momentum of the vessel was not contained.
Still, Gavino did not react. He did not even order the other
anchor and two (2) more shackles dropped to arrest the
momentum of the vessel. Neither did he order full-astern. It
was only at 8:34 o'clock, or four (4) minutes, after the anchor
was dropped that Gavino reacted. But his reaction was even
(haphazard) because instead of arresting fully the momentum
of the vessel with the help of the tugboats, Gavino ordered
merely "half-astern". It took Gavino another minute to order a
"full-astern". By then, it was too late. The vessel's momentum
could no longer be arrested and, barely a minute thereafter, the
bow of the vessel hit the apron of the pier. Patently, Gavino
miscalculated. He failed to react and undertake adequate
measures to arrest fully the momentum of the vessel after the
anchor failed to claw to the seabed. When he reacted, the
same was even (haphazard). Gavino failed to reckon the bulk
of the vessel, its size and its cargo. He erroneously believed
that only one (1) anchor would suffice and even when the
anchor failed to claw into the seabed or against a hard object in
the seabed, Gavino failed to order the other anchor dropped
immediately. His claim that the anchor was dropped when the
vessel was only 1,000 feet from the pier is but a belated
attempt to extricate himself from the quagmire of his own
insouciance and negligence. In sum, then, Appellants' claim
that the incident was caused by "force majeure" is barren of
factual basis.
xxxxxxxxx
The harbor pilots are especially trained for this job. In the
Philippines, one may not be a harbor pilot unless he passed
the required examination and training conducted then by the
Bureau of Custom, under Customs Administrative Order No.
15-65, now under the Philippine Ports Authority under PPA
Administrative Order 63-85. Paragraph XXXIX of the Customs
Administrative Order No. 15-65 provides that "the pilot shall be
held responsible for the direction of the vessel from the time he
assumes control thereof, until he leaves it anchored free from
shoal: Provided, that his responsibility shall cease at the
moment the master neglects or refuse(s) to carry out his
instructions." The overall direction regarding the procedure for
docking and undocking the vessel emanates from the harbor
pilot. In the present recourse, Gavino failed to live up to his
TORTS (BATCH 3)
responsibilities and exercise reasonable care or that degree of
care required by the exigencies of the occasion. Failure on his
part to exercise the degree of care demanded by the
circumstances is negligence (Reese versus Philadelphia & RR
Co. 239 US 463, 60 L ed. 384, 57 Am Jur. 2d 12age 418).[67]
This affirms the findings of the trial court regarding
Capt. Gavino's negligence:
This discussion should not however, divert the court from
the fact that negligence in manuevering the vessel must be
attributed to Capt. Senen Gavino. He was an experienced pilot
and by this time should have long familiarized himself with the
depth of the port and the distance he could keep between the
vessel and port in order to berth safely.[68]
The negligence on the part of Capt. Gavino is evident;
but Capt. Kabankov is no less responsible for the allision. His
unconcerned lethargy as master of the ship in the face of
troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a
pilot-is in sole command of the ship[69] and supersedes the
master for the time being in the command and navigation of a
ship and that he becomes master pro hac vice of a vessel
piloted by him,[70] there is overwhelming authority to the effect
that the master does not surrender his vessel to the pilot and
the pilot is not the master. The master is still in command of the
vessel notwithstanding the presence of a pilot. There are
occasions when the master may and should interfere and even
displace the pilot, as when the pilot is obviously incompetent or
intoxicated and the circumstances may require the master to
displace a compulsory pilot because of incompetency or
physical incapacity. If, however, the master does not observe
that a compulsory pilot is incompetent or physically
incapacitated, the master is justified in relying on the pilot, but
not blindly.[71]
The master is not wholly absolved from his duties while a
pilot is on board his vessel, and may advise with or offer
suggestions to him. He is still in command of the vessel, except
so far as her navigation is concerned, and must cause the
ordinary work of the vessel to be properly carried on and the
usual precaution taken. Thus, in particular, he is bound to see
that there is sufficient watch on deck, and that the men are
attentive to their duties, also that engines are stopped, towlines
cast off, and the anchors clear and ready to go at the pilot's
order.[72]
A perusal of Capt. Kabankov's testimony makes it
apparent that he was remiss in the discharge of his duties as
master of the ship, leaving the entire docking procedure up to
the pilot, instead of maintaining watchful vigilance over this
risky maneuver:
Q Will you please tell us whether you have the right to
intervene in docking of your ship in the harbor?
A No sir, I have no right to intervene in time of docking, only
in case there is imminent danger to the vessel and to
the pier.
Q Did you ever intervene during the time that your ship was
being docked by Capt. Gavino?
11

A No sir, I did not intervene at the time when the pilot was
docking my ship.
Q Up to the time it was actually docked at the pier, is that
correct'?
A No sir, I did not intervene up to the very moment when
the vessel was docked.
xxxxxxxxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there
anything unusual that happened during the docking?
A Yes sir, our ship touched the pier and the pier was
damaged.
Court (to the witness)
Q When you said touched the pier, are you leading the
court to understand that your ship bumped the pier?
A I believe that my vessel only touched the pier but the
impact was very weak.
Q Do you know whether the pier was damaged as a result
of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxxxxxxxx
Q Being most concerned with the safety of your vessel, in
the maneuvering of your vessel, to the port, did you
observe anything irregular in the maneuvering by
Capt. Gavino at the time he was trying to cause the
vessel to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver of
the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court to
understand that there was nothing irregular in the
docking of the ship?
A Yes sir, during the initial period, of the docking, there was
nothing unusual that happened.
Q What about in the last portion of the docking of the ship,
was there anything unusual or abnormal that
happened?
A None Your Honor, I believe that Capt. Gavino thought
that the anchor could keep or hold the vessel.
Q You want us to understand, Mr. Witness, that the
dropping of the anchor of the vessel was not timely?
A I don't know the depth of this port but I think, if the anchor
was dropped earlier and with more shackles, there
could not have been an incident.
TORTS (BATCH 3)
Q So you could not precisely tell the court that the dropping
of the anchor was timely because you are not well
aware of the seabed, is that correct?
A Yes sir, that, is right.
xxxxxxxxx
Q Alright, Capt. Kavankov, did you come to know later
whether the anchor held its ground so much so that
the vessel could not travel?
A It is difficult for me to say definitely. I believe that the
anchor did not hold the ship.
Q You mean you don't know whether the anchor blades
stuck to the ground to stop the ship from further
moving?
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold the
vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold
the ship, did you not make any protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is
correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether
the 2 shackles were also dropped to hold the ship?
A No sir, at the beginning, I did not doubt it because I
believe Capt. Gavino to be an experienced pilot and
he should be more aware as to the depths of the
harbor and the ground and I was confident in his
actions.
xxxxxxxxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of
the vessel before the incident happened, were you
not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from
that point of view?
A That is right.
Q Whatever the pilot can read from the panel of the bridge,
you also could read, is that correct?
A What is the meaning of panel'?
Q All indications necessary for men on the bridge to be
informed of the movements of the ship?
12

A That is right.
Q And whatever sound the captain... Capt. Gavino would
hear from the bridge, you could also hear?
A That is right.
Q Now, you said that when the command to lower the
anchor was given, it was obeyed, is that right?
A This command was executed by the third mate and
boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you said that you
did not intervene with the duties of the pilot and that,
in your opinion, you can only intervene if the ship is
placed in imminent danger, is that correct?
A That is right, I did say that.
Q In your observation before the incident actually
happened, did you observe whether or not the ship,
before the actual incident, the ship was placed in
imminent danger?.
A No sir, I did not observe.
Q By that answer, are you leading the court to understand
that because you did not intervene and because you
believed that it was your duty to intervene when the
vessel is placed in imminent danger to which you did
not observe any imminent danger thereof, you have
not intervened in any manner to the command of the
pilot?
A That is right, sir.
xxxxxxxxx
Q Assuming that you disagreed with the pilot regarding the
step being taken by the pilot in maneuvering the
vessel. whose command will prevail, in case of
imminent danger to the vessel?
A I did not consider the situation as having an imminent
danger. I believed that the vessel will dock alongside
the pier.
Q You want us to understand that you did not see an
imminent danger to your ship, is that what you mean?
A Yes sir, up to the very last moment, I believed that there
was no imminent danger.
Q Because of that, did you ever intervene in the command
of the pilot?
A Yes sir, I did not intervene because I believed that the
command of the pilot to be correct.
Solicitor Abad (to the witness)
Q As a captain of M/V Pavlodar, you consider docking
maneuvers a serious matter, is it not?
A Yes sir, that is right.
Q Since it affects not only the safety of the port or pier, but
also the safety of the vessel and the cargo, is it not?
TORTS (BATCH 3)
A That is right.
Q So that, I assume that you were watching Capt. Gavino
very closely at the time he was making his
commands?
A I was close to him, I was hearing his command and being
executed.
Q And that you were also alert for any possible mistakes he
might commit in the maneuvering of the vessel?
A Yes sir, that is right.
Q But at no time during the maneuver did you issue order
contrary to the orders Capt. Gavino made?
A No sir.
Q So that you were in full accord with all of Capt. Gavino's
orders?
A Yes sir.
Q Because, otherwise, you would have issued order that
would supersede his own order?
A In that case, I should take him away from his command
or remove the command from him.
Court (to the witness)
Q You were in full accord with the steps being taken by
Capt. Gavino because you relied on his knowledge,
on his familiarity of the seabed and shoals and other
surroundings or conditions under the sea, is that
correct?
A Yes sir, that is right.
xxxxxxxxx
Solicitor Abad (to the witness)
Q And so after the anchors were ordered dropped and they
did not take hold of the seabed, you were alerted that
there was danger already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was
supposed to take hold of the bottom and it did not,
there was no danger to the ship?
A Yes sir, because the anchor dragged on the ground later.
Q And after a few moments when the anchor should have
taken hold the seabed but not done (sic), as you
expected, you already were alerted that there was
danger to the ship, is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert you assumed was the ordinary alertness
that you have for normal docking?
13

A Yes sir, I mean that it was usual condition of any man in
time of docking to be alert.
Q And that is the same alertness when the anchor did not
hold onto the ground, is that correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor
will hold the ground.
Q Since, as you said that you agreed all the while with the
orders of Capt. Gavino, you also therefore agreed
with him in his failure to take necessary precaution
against the eventuality that the anchor will not hold as
expected?
Atty. Del Rosario:
May I ask that the question ...
Solicitor Abad:
Never mind, I will reform the question.
xxxxxxxxx
Solicitor Abad (to the witness)
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did not
hold the ground as expected?
A Yes sir, that is my opinion.[73]
Further, on redirect examination, Capt. Kabankov fortified
his apathetic assessment of the situation:
Q Now, after the anchor was dropped, was there any point
in time that you felt that the vessel was in imminent
danger.
A No, at that time, the vessel was not in imminent danger,
sir."[74]
This cavalier appraisal of the event by Capt. Kabankov is
disturbingly antipodal to Capt. Gavino's anxious assessment of
the situation:
Q When a pilot is on board a vessel, it is the pilot's
command which should be followed-at that moment
until the vessel is, or goes to port or reaches port?
A Yes, your Honor, but it does not take away from the
Captain his prerogative to countermand the pilot.
Q In what way?
A In any case, which he thinks the pilot is not maneuvering
correctly, the Captain always has the prerogative to
countermand the pilot's order.
Q But insofar as competence, efficiency and functional
knowledge of the seabed which are vital or decisive in
the safety (sic) bringing of a vessel to the port, he is
not competent?
A Yes, your Honor. That is why they hire a pilot in an
advisory capacity, but still, the safety of the vessel
rest(s) upon the Captain, the Master of the vessel.
TORTS (BATCH 3)
Q In this case, there was not a disagreement between you
and the Captain of the vessel in the bringing of the
vessel to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here that he
was all along in conformity with the orders you gave to
him, and, as matter of fact, as he said, he obeyed all
your orders. Can you tell, if in the course of giving
such normal orders for the saf(e) docking of the MV
Pavlodar, do you remember of any instance that the
Master of the vessel did not obey your command for
the safety docking of the MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that
there was no disagreement insofar as the bringing of
the vessel safely to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do
you remember of a time during the course of the
docking that the MV Pavlodar was in imminent danger
of bumping the pier?
A When we were about more than one thousand meters
from the pier. I think, the anchor was not holding, so I
immediately ordered to push the bow at a fourth
quarter, at the back of the vessel in order to swing the
bow away from the pier and at the same time, I
ordered for a full astern of the engine." [75]
These conflicting reactions can only imply, at the very least,
unmindful disregard or, worse, neglectful relinquishment of
duty by the shipmaster, tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been
charged with the task of docking the vessel in the berthing
space, it is undisputed that the master of the vessel had the
corresponding duty to countermand any of the orders made by
the pilot, aid even maneuver the vessel himself, in case of
imminent danger to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all
throughout the man(eu)vering procedures he did not notice
anything was going wrong, and even observed that the order
given to drop the anchor, was done at the proper time. He even
ventured the opinion that the accident occurred because the
anchor failed to take hold but that this did not alarm him
because there was still time to drop a second anchor.
14

Under normal circumstances, the above-mentioned facts
would have caused the master of a vessel to take charge of the
situation and see to the man(eu)vering of the vessel
himself. Instead, Capt. Kavankov chose to rely blindly upon his
pilot, who by this time was proven ill-equipped to cope with the
situation.
xxxxxxxxx
It is apparent that Gavino was negligent but Far Eastern's
employee Capt. Kavankov was no less responsible for as
master of the vessel he stood by the pilot during the
man(eu)vering procedures and was privy to every move the
latter made, as well as the vessel's response to each of the
commands. His choice to rely blindly upon the pilot's skills, to
the point that despite being appraised of a notice of alert he
continued to relinquish control of the vessel to Gavino, shows
indubitably that he was not performing his duties with the
diligence required of him and therefore may be charged with
negligence along with defendant Gavino.[76]
As correctly affirmed by the Court of Appeals -
We are in full accord with the findings and disquisitions of
the Court a quo.
In the present recourse, Captain Viktor Kavankov had
been a mariner for thirty-two years before the incident. When
Gavino was (in) the command of the vessel, Kavankov was
beside Gavino, relaying the commands or orders of Gavino to
the crewmembers-officers of the vessel concerned. He was
thus fully aware of the docking maneuvers and procedure
Gavino undertook to dock the vessel. Irrefragably, Kavankov
was fully aware of the bulk and size of the vessel and its cargo
as well as the weight of the vessel.Kavankov categorically
admitted that, when the anchor and two (2) shackles were
dropped to the sea floor, the claws of the anchor did not hitch
on to any hard object in the seabed. The momentum of the
vessel was not arrested. The use of the two (2) tugboats was
insufficient. The momentum of the vessel, although a little bit
arrested, continued (sic) the vessel going straightforward with
its bow towards the port (Exhibit "A-1"). There was thus a need
for the vessel to move "full-astern" and to drop the other
anchor with another shackle or two '(2), for the vessel to avoid
hitting the pier. Kavankov refused to act even as Gavino failed
to act. Even as Gavino gave mere "half-astern" order,
Kavankov supinely stood by. The vessel was already about
twenty (20) meters away from the pier when Gavino gave the
'full-astern" order. Even then, Kavankov did nothing to prevent
the vessel from hitting the pier simply because he relied on the
competence and plan of Gavino. While the "full-astern"
maneuver momentarily arrested the momentum of the vessel, it
was, by then, too late. All along, Kavankov stood supinely
beside Gavino, doing nothing but relay the commands of
Gavino. Inscrutably, then, Kavankov was negligent.
xxxxxxxxx
The stark incompetence of Kavankov is competent evidence to
prove the unseaworthiness of the vessel. It has been held that
the incompetence of the navigator, the master of the vessel or
TORTS (BATCH 3)
its crew makes the vessel unseaworthy (Tug Ocean Prince
versus United States of America, 584 F. 2nd, page
1151). Hence, the Appellant FESC is likewise liable for the
damage sustained by the Appellee."[77]
We find strong and well-reasoned support in time-tested
American maritime jurisprudence, on which much of our laws
and jurisprudence on the matter are based, for the conclusions
of the Court of Appeals adjudging both Capt. Gavino and
Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared,
through Mr. Justice Swayne, in The Steamship China vs.
Walsh,[78] that it is the duty of the master to interfere in cases of
the pilot's intoxication or manifest incapacity, in cases of
danger which he does not foresee, and in all cases of great
necessity. The master has the same power to displace the pilot
that he has to remove any subordinate officer of the vessel, at
his discretion.
In 1895, the U.S. Supreme Court, this time through Mr.
Justice Brown, emphatically ruled that:
Nor are we satisfied with the conduct of the master in
leaving the pilot in sole charge of the vessel. While the pilot
doubtless supersedes the master for the time being in the
command and navigation of the ship, and his orders must be
obeyed in all matters connected with her navigation, the master
is not wholly absolved from his duties while the pilot is on
board, and may advise with him, and even displace him in case
he is intoxicated or manifestly incompetent. He is still in
command of the vessel, except so far as her navigation is
concerned, and bound to see that there is a sufficient watch on
deck, and that the men are attentive to their duties.
xxx (N)otwithstanding the pilot has charge, it is the duty
of the master to prevent accident, and not to abandon the
vessel entirely to the pilot; but that there are certain duties he
has to discharge (notwithstanding there is a pilot on board) for
the benefit of the owners. x x x that in well conducted ships the
master does not regard the presence of a duly licensed pilot in
compulsory pilot waters as freeing him from every obligation to
attend to the safety of the vessel; but that, while the master
sees that his officers and crew duly attend to the pilot's
orders, he himself is bound to keep a vigilant eye on the
navigation of the vessel, and, when exceptional circumstances
exist, not only to urge upon the pilot to use every precaution,
but to insist upon, such being taken."[79] (Italics for emphasis.)
In Jure vs. United Fruit Co.,[80] which, like the present
petitions, involved compulsory pilotage, with a similar scenario
where at and prior to the time of injury, the vessel was in the
charge of a pilot with the master on the bridge of the vessel
beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in complete
abeyance while a pilot, who is required by law to be accepted,
is in discharge of his functions. x x x It is the duty of the master
to interfere in cases of the pilot's intoxication or manifest
incapacity, in cases of danger which he does not foresee, and
in all cases of great necessity . The master has the same
power to displace the pilot that he has to remove any
subordinate officer of the vessel. He may exercise it, or not,
15

according to his discretion. There was evidence to support
findings that plaintiff's injury was due to the negligent operation
of the Atenas, and that the master of that vessel was negligent
in failing to take action to avoid endangering a vessel situated
as the City of Canton was and persons or property thereon.
A phase of the evidence furnished support for the
inferences x x x that he negligently failed to suggest to the pilot
the danger which was disclosed, and means of avoiding such
danger; and that the master's negligence in failing to give
timely admonition to the pilot proximately contributed to the
injury complained of. We are of opinion that the evidence
mentioned tended to prove conduct of the pilot, known to the
master, giving rise to a case of danger or great necessity,
calling for the intervention of the master. A master of a vessel
is not Without fault in acquiescing in conduct of a pilot which
involves apparent and avoidable danger, whether such danger
is to the vessel upon which the pilot is, or to another vessel, or
persons or property thereon or on shore. (Italics ours.)
Still in another case involving a nearly identical setting, the
captain of a vessel alongside the compulsory pilot was deemed
to be negligent, since, in the words of the court, "he was in a
position to exercise his superior authority if he had deemed the
speed excessive on the occasion in question. I think it
was clearly negligent of him not to have recognized the
danger to any craft moored at Gravell Dock and that he should
have directed the pilot to reduce his speed as required by the
local governmental regulations. His failure amounted to
negligence and renders the respondent liable." [81] (Italics
supplied.) Though a compulsory pilot might be regarded as an
independent contractor, he is at all times subject to the ultimate
control of the ship's master.[82]
In sum, where a compulsory pilot is in charge of a ship,
the master being required to permit him to navigate it, if the
master observes that the pilot is incompetent or physically
incapable, then it is the duty of the master to refuse to permit
the pilot to act. But if no such reasons are present, then the
master is justified in relying upon the pilot, but not blindly.
Under the circumstances of this case, if a situation arose
where the master, exercising that reasonable vigilance which
the master of a ship should exercise, observed, or should have
observed, that the pilot was so navigating the vessel that she
was going, or was likely to go, into danger, and there was in
the exercise of reasonable care and vigilance an opportunity
for the master to intervene so as to save the ship from danger,
the master should have acted accordingly.[83] The master of a
vessel must exercise a degree of vigilance commensurate with
the circumstances.[84]
Inasmuch as the matter of negligence is a question of
fact,[85] we defer to the findings of the trial court, especially as
this is affirmed by the Court of Appeals. [86] But even beyond
that, our own evaluation is that Capt. Kabankov's shared
liability is due mainly to the fact that he failed to act when the
perilous situation should have spurred him into quick and
decisive action as master of the ship. In the face of imminent or
actual danger, he did not have to wait for the happenstance to
occur before countermanding or overruling the pilot. By his own
admission, Capt. Kabankov concurred with Capt. Gavino's
decisions, and this is precisely the reason why he decided not
to countermand any of the latter's orders. Inasmuch as both
lower courts found Capt. Gavino negligent, by expressing full
TORTS (BATCH 3)
agreement therewith Capt. Kabankov was just as negligent as
Capt. Gavino.
In general, a pilot is personally liable for damages caused
by his own negligence or default to the owners of the vessel,
and to third parties for damages sustained in a collision. Such
negligence of the pilot in the performance of duty constitutes a
maritime tort.[87] At common law, a shipowner is not liable for
injuries inflicted exclusively by the negligence of a pilot
accepted by a vessel compulsorily.[88] The exemption from
liability for such negligence shall apply if the pilot is actually in
charge and solely in fault. Since, a pilot is responsible only for
his own personal negligence, he cannot be held accountable
for damages proximately caused by the default of others, [89] or,
if there be anything which concurred with the fault of the pilot in
producing the accident, the vessel master and owners are
liable.
Since the colliding vessel is prima facie responsible, the
burden of proof is upon the party claiming benefit of the
exemption from liability. It must be shown affirmatively that the
pilot was at fault, and that there was no fault on the part of the
officers or crew, which might have been conducive to the
damage. The fact that the law compelled the master to take the
pilot does not exonerate the vessel from liability. The parties
who suffer are entitled to have their remedy against the vessel
that occasioned the damage, and are not under necessity to
look to the pilot from whom redress is not always had for
compensation. The owners of the vessel are responsible to the
injured party for the acts of the pilot, and they must be left to
recover the amount as well as they can against him. It cannot
be maintained that the circumstance of having a pilot on board,
and acting in conformity to his directions operate as a
discharge of responsibility of the owners.[90] Except insofar as
their liability is limited or exempted by statute, the vessel or her
owner are liable for all damages caused by the negligence or
other wrongs of the owners or those in charge of the
vessel. Where the pilot of a vessel is not a compulsory one in
the sense that the owner or master of the vessel are bound to
accept him, but is employed voluntarily, the owners of the
vessel are, all the more, liable for his negligent act. [91]
In the United States, the owners of a vessel are not
personally liable for the negligent acts of a compulsory pilot,
but by admiralty law, the fault or negligence of a compulsory
pilot is imputable to the vessel and it may be held liable
therefor in rem. Where, however, by the provisions of the
statute the pilot is compulsory only in the sense that his fee
must be paid, and is not in compulsory charge of the vessel,
there is no exemption from liability. Even though the pilot is
compulsory, if his negligence was not the sole cause of the
injury, but the negligence of the master or crew contributed
thereto, the owners are liable.[92] But the liability of the ship in
rem does not release the pilot from the consequences of his
own negligence.[93] The rationale for this rule is that the master
is not entirely absolved of responsibility with respect to
navigation when a compulsory pilot is in charge.[94]
By way of validation and in light of the aforecited
guidepost rulings in American maritime cases, we declare that
our rulings during the early years of this century in City of
Manila vs. Gambe, [95] China Navigation Co., Ltd.
vs. Vidal,[96] and Yap Tico & Co. vs. Anderson, et al.[97] have
withstood the proverbial test of time and remain good and
relevant case law to this day.
16

City of Manila stands for the doctrine that the pilot who
was in command and complete control of a vessel, and not the
owners, must be held responsible for an accident which was
solely the result of the mistake of the pilot in not giving proper
orders, and which did not result from the failure of the owners
to equip the vessel with the most modern and improved
machinery. In China Navigation Co., the pilot deviated from the
ordinary and safe course, without heeding the warnings of the
ship captain. It was this careless deviation that caused the
vessel to collide with a pinnacle rock which, though uncharted,
was known to pilots and local navigators. Obviously, the
captain was blameless. It was the negligence of the pilot alone
which was the proximate cause of the collision. The Court
could not but then rule that -
The pilot in the case at bar having deviated from the
usual and ordinary course followed by navigators in passing
through the strait in question, without a substantial reason, was
guilty of negligence, and that negligence having been the
proximate cause of the damages, he is liable for such damages
as usually and naturally flow therefrom. x x x.
x x x (T)he defendant should have known of the
existence and location of the rock upon which the vessel struck
while under his control and management. x x x.
Consistent with the pronouncements in these two earlier
cases, but on a slightly different tack, the Court in Yap Tico &
Co. exonerated the pilot from liability for the accident where the
order's of the pilot in the handling of the ship were disregarded
by the officers and crew of the ship. According to the Court, a
pilot is "x x x responsible for a full knowledge of the channel
and the navigation only so far as he can accomplish it through
the officers and crew of the ship, and I don't see that he can be
held responsible for damage when the evidence shows, as it
does in this case, that the officers and crew of the ship failed to
obey his orders." Nonetheless, it is possible for a compulsory
pilot and the master of the vessel to be concurrently negligent
and thus share the blame for the resulting damage as Joint
tortfeasors,[98] but only under the circumstances obtaining in
and demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order
to render a person liable need not be the sole cause of an
injury. It is sufficient that his negligence, concurring with one or
more efficient causes other than plaintiff's, is the proximate
cause of the injury. Accordingly, where several causes
combine to produce injuries, a person is not relieved from
liability because he is responsible for only one of them, it being
sufficient that the negligence of the person charged with injury
is an efficient cause without which the injury would not have
resulted to as great an extent, and that such cause is not
attributable to the person injured. It is no defense to one of the
concurrent tortfeasors that the injury would not have resulted
from his negligence alone, without the negligence or wrongful
acts of the other concurrent tortfeasor.[99] Where several
causes producing an injury are concurrent and each is an
efficient cause without which the injury would not have
happened, the injury may be attributed to all or any of the
causes and recovery may be had against any or all of the
responsible persons although under the circumstances of the
case, it may appear that one of them was more culpable, and
that the duty owed by them to the injured person was not the
TORTS (BATCH 3)
same. No actor's negligence ceases to be a proximate cause
merely because it does not exceed the negligence of other
actors. Each wrongdoer is responsible for the entire result and
is liable as though his acts were the sole cause of the
injury.[100]
There is no contribution between joint tortfeasors whose
liability is solidary since both of them are liable for the total
damage. Where the concurrent or successive negligent acts or
omissions of two or more persons, although acting
independently, are in combination the direct and proximate
cause of a single injury to a third person, it is impossible to
determine in what proportion each contributed to the injury and
either of them is responsible for the whole injury. Where their
concurring negligence resulted in injury or damage to a third
party, they become joint tortfeasors and are solidarity liable for
the resulting damage under Article 2194[101] of the Civil
Code.[102]
As for the amount of damages awarded by the trial court,
we find the same to be reasonable. The testimony of Mr.
Pascual Barral, witness for PPA, on cross and redirect
examination, appears to be grounded on practical
considerations:
Q So that the cost of the two additional piles as well as the
(two) square meters is already included in this -
P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent
only for the six piles that was damaged as well as the
corresponding two piles.
A The area was corresponding, was increased by almost
two in the actual payment. That was why the contract
was decreased, the real amount was P1,124,627.40
and the final one is P1300,999.77.
Q Yes, but that P1,300,999.77 included the additional two
new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place
in 1980 and you started the repair and reconstruction
in 1982, that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing
damage in 1980 was aggravated for the 2 year period
that the damage portion was not repaired?
A I don't think so because that area was at once marked
and no vehicles can park, it was closed.
17

Q Even if or even natural elements cannot affect the
damage?
A Cannot, sir.
xxxxxxxxx
Q You said in the cross-examination that there were six
piles damaged by the accident, but that in the
reconstruction of the pier, PPA drove and constructed
8 piles. Will you explain to us why there was change
in the number of piles from the original number?
A In piers where the piles are withdrawn or pulled out, you
cannot re-drive or drive piles at the same point. You
have to redesign the driving of the piles. We cannot
drive the piles at the same point where the piles are
broken or damaged or pulled out. We have to
redesign, and you will note that in the reconstruction,
we redesigned such that it necessitated 8 piles.
Q Why not, why could you not drive the same number of
piles and on the same spot?
A The original location was already disturbed. We cannot
get required bearing capacity. The area is already
disturbed.
Q Nonetheless, if you drove the original number of piles,
six, on different places, would not that have sustained
the same load?
A It will not suffice, sir."[103]
We quote the findings of the lower court with approval:
With regards to the amount of damages that is to be awarded
to plaintiff, the Court finds that the amount of P1,053,300.00 is
justified. Firstly, the doctrine of res ipsa loquiturbest expounded
upon in the landmark case of Republic vs. Luzon Stevedoring
Corp. (21 SCRA 279) establishes the presumption that in the
ordinary course of events the ramming of the dock would not
have occurred if proper care was used.
Secondly, the various estimates and plans justify the cost of
the port construction price. The new structure constructed not
only replaced the damaged one but was built of stronger
materials to forestall the possibility of any similar accidents in
the future.
The Court inevitably finds that the plaintiff is entitled to an
award of P1,053,300.00 which represents actual damages
caused by the damage to Berth 4 of the Manila International
Port. Co-defendants Far Eastern Shipping, Capt. Senen
Gavino and Manila Pilots Association are solidarity liable to pay
this amount to plaintiff.[104]
The Solicitor General rightly commented that the adjudicated
amount of damages represents the proportional cost of repair
and rehabilitation of the damaged section of the pier. [105]
Except insofar as their liability is limited or exempted by
statute, the vessel or her owners are liable for all damages
caused by the negligence or other wrongs of the owners or
those in charge of the vessel. As a general rule, the owners or
TORTS (BATCH 3)
those in possession and control of a vessel and the vessel are
liable for all natural and proximate damages caused to persons
or property by reason of her negligent management or
navigation.[106]
FESC's imputation of PPA's failure to provide a safe and
reliable berthing place is obtuse, not only because it appears to
be a mere afterthought, being tardily raised only in this petition,
but also because there is no allegation or evidence on record
about Berth No. 4 being unsafe and unreliable, although
perhaps it is a modest pier by international standards. There
was, therefore, no error on the part of the Court of Appeals in
dismissing FESC's counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court of
Appeals erred in holding MPA jointly and solidarity liable with
its member pilot, Capt. Gavino, in the absence of employer-
employee relationship and in applying Customs Administrative
Order No. 15-65, as basis for the adjudged solidary liability of
MPA and Capt. Gavino.
The pertinent provisions in Chapter I of Customs
Administrative Order No. 15-65 are:
"PAR. XXVII.-- In all pilotage districts where pilotage is
compulsory, there shall be created and maintained by the pilots
or pilots' association, in the manner hereinafter prescribed, a
reserve fund equal to P1,000.00 for each pilot thereof for the
purpose of paying claims for damages to vessels or property
caused through acts or omissions of its members while
rendered in compulsory pilotage service. In Manila, the reserve
fund shall be P2,000.00 for each pilot.
PAR. XXVIII.-- A pilots' association shall not be liable under
these regulations for damage to any vessel, or other property,
resulting from acts of a member of an association in the actual
performance of his duty for a greater amount than seventy-five
per centum (75%) of its prescribed reserve fund; it being
understood that if the association is held liable for an amount
greater than the amount above-stated, the excess shall be paid
by the personal funds of the member concerned.
PAR. XXXI.-- If a payment is made from the reserve fund of an
association on account of damages caused by a member
thereof, and he shall have been found at fault, such member
shall reimburse the association in the amount so paid as soon
as practicable; and for this purpose, not less than twenty-five
per centum of his dividends shall be retained each month until
the full amount has been returned to the reserve fund.
PAR. XXXIV. - Nothing in these regulations shall relieve any
pilots' association or members thereof, individually or
collectively, from civil responsibility for damages to life or
property resulting from the acts of members in the performance
of their duties.
18

Correlatively, the relevant provisions of PPA
Administrative Order No. 03-85, which timely amended this
applicable maritime regulation, state:
Article IV
SEC. 17. Pilots' Association -- The Pilots in a Pilotage District
shall organize themselves into a Pilots' Association or firm, the
members of which shall promulgate their own By-Laws not in
conflict with the rules and regulations promulgated by the
Authority. These By-Laws shall be submitted not later than one
(1) month after the organization of the Pilots' Association for
approval by the General Manager of the Authority. Subsequent
amendments thereto shall likewise be submitted for approval.
SEC. 25. Indemnity Insurance and Reserve Fund--
a) Each Pilots' Association shall collectively
insure its membership at the rate
of P50,000.00 each member to
cover in whole or in part any liability
arising from any accident resulting
in damage to vessel(s), port
facilities and other properties and/or
injury to persons or death which any
member may have caused in the
course of his performance of
pilotage duties. x x x.
b) The Pilotage Association shall likewise set
up and maintain a reserve fund
which shall answer for any part of
the liability referred to in the
immediately preceding paragraph
which is left unsatisfied by the
insurance proceeds, in the following
manner:
1) Each pilot in the Association shall
contribute from his own account an
amount of P4,000.00 (P6,000.00 in
the Manila Pilotage District) to the
reserve fund.This fund shall not be
considered part of the capital of the
Association nor charged as an
expense thereof.
2) Seventy-five percent (75%) of the
reserve fund shall be set aside for
use, in the payment of damages
referred to above incurred in the
actual performance of pilots' duties
and the excess shall be paid from
the personal funds of the member
concerned.
xxxxxxxxx
TORTS (BATCH 3)
5) If payment is made from the reserve
fund of an Association on account
of damage caused by a member
thereof who is found at fault, he
shall reimburse the Association in
the amount so paid as soon as
practicable; and for this purpose,
not less than twenty-five
percentum (25%) of his dividend
shall be retained each month until
the full amount has been returned
to the reserve fund. Thereafter, the
pilot involved shall be entitled to
his full dividend.
6) When the reimbursement has been
completed as prescribed in the
preceding paragraph, the ten
percentum (10%) and the interest
withheld from the shares of the
other pilots in accordance with
paragraph (4) hereof shall be
returned to them.
c) Liability of Pilots' Association --
Nothing in these regulations shall
relieve any Pilots' Association or
members thereof, individually or
collectively, from any civil,
administrative and/or criminal
responsibility for damages to life or
property resulting from the
individual acts of its members as
well as those of the Association's
employees and crew in the
performance of their duties.
The Court of Appeals, while affirming the trial court's
finding of solidary liability on the part of FESC, MPA and
Capt. Gavino, correctly based MPA's liability not on the
concept of employer-employee relationship between
Capt. Gavino and itself, but on the provisions of Customs
Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and
disquisitions of the Court a quo, the Appellant Gavino was not
and has never been an employee of the MPA but was only a
member thereof. The Court a quo, it is noteworthy,, did not
state the factual basis on which it anchored its finding that
Gavino was the employee of MPA. We are in accord with
MPA's pose. Case law teaches Us that, for an employer-
employee relationship to exist the confluence of the following
elements must be established: (1) selection and engagement
of employees; (2) the payment of wages; (3) the power of
dismissal; (4) the employer's power to control the employees
with respect to the means and method by which the work is to
be performed (Ruga versus NLRC, 181SCRA 266).
xxxxxxxxx
The liability of MPA for damages is not anchored on Article
2180 of the New Civil Code as erroneously found and declared
19

by the Court a quo but under the provisions of Customs
Administrative Order No. 15-65, supra, in tandem with the by-
laws of the MPA."[107]
There being no employer-employee relationship, clearly
Article 2180[108] of the Civil Code is inapplicable since there is
no vicarious liability of an employer to speak of. It is so stated
in American law, as follows:
The well-established rule is that pilot associations are immune
to vicarious liability for the tort of their members. They are not
the employer of their members and exercise no control over
them once they take the helm of the vessel. They are also not
partnerships because the members do not function as agents
for the association or for each other.Pilots' associations are
also not liable for negligently assuring, the competence of their
members because as professional associations they made no
guarantee of the professional conduct of their members to the
general public.[109]
Where under local statutes and regulations, pilot
associations lack the necessary legal incidents of
responsibility, they have been held not liable for damages
caused by the default of a member pilot.[110] Whether or not the
members of a pilots' association are in legal effect a
copartnership depends wholly on the powers and duties of the
members in relation to one another under the provisions of the
governing statutes and regulations. The relation of a pilot to his
association is not that of a servant to the master, but of an
associate assisting and participating in a common
purpose. Ultimately, the rights and liabilities between a pilots'
association and an individual member depend largely upon the
constitution, articles or by-laws of the association, subject to
appropriate government regulations.[111]
No reliance can be placed by MPA on the cited American
rulings as to immunity from liability of a pilots' association in
light of existing positive regulation under Philippine law. The
Court of Appeals properly applied the clear and unequivocal
provisions of Customs Administrative Order No. 15-65. In doing
so, it was just being consistent with its finding of the non-
existence of employer-employee relationship between MPA
and Capt. Gavino precludes the application of Article 2180 of
the Civil Code.
True, Customs Administrative Order No. 15-65 does not
categorically characterize or label MPA's liability as solidary in
nature. Nevertheless, a careful reading and proper analysis of
the correlated provisions lead to the conclusion that MPA is
solidarity liable for the negligence of its member pilots, without
prejudice to subsequent reimbursement from the pilot at fault.
Article 1207 of the Civil Code provides that there is
solidary liability only when the obligation expressly so states, or
when the law or the nature of the obligation requires
solidarity. Plainly, Customs Administrative Order No. 15-65,
which as an implementing rule has the force and effect of law,
can validly provide for solidary liability. We note the Solicitor
General's comment hereon, to wit:
x x x Customs Administrative Order No. 15-65 may be a mere
rule and regulation issued by an administrative agency
pursuant to a delegated authority to fix "the details" in the
TORTS (BATCH 3)
execution or enforcement of a policy set out in the law
itself. Nonetheless, said administrative order, which adds to the
procedural or enforcing provisions of substantive law, is legally
binding and receives the same statutory force upon going into
effect. In that sense, it has equal, not lower, statutory force and
effect as a regular statute passed by the legislature." [112]
MPA's prayer for modification of the appellate court's
decision under review by exculpating petitioner MPA "from
liability beyond seventy-five percent (75%) of Reserve Fund" is
unnecessary because the liability of MPA under Par. XXVIII of
Customs Administrative Order No. 15-65 is in fact limited to
seventy-five percent (75%) of its prescribed reserve fund, any
amount of liability beyond that being for the personal account
of the erring pilot and subject to reimbursement in case of a
finding of fault by the member concerned. This is clarified by
the Solicitor General:
Moreover, contrary to petitioners pretensions, the provisions of
Customs Administrative Order No. 15-65 do not limit the
liability of petitioner as a pilots' association to an absurdly small
amount of seventy-five per centum (75%) of the member pilots'
contribution of P2,000.00 to the reserve fund. The law speaks
of the entire reserve fund required to be maintained by the
pilots' association to answer (for) whatever liability arising from
the tortious act of its members. And even if the association is
held liable for an amount greater than the reserve fund, the
association may not resist the liability by claiming to be liable
only up to seventy-five per centum (75%) of the reserve fund
because in such instance it has the right to be reimbursed by
the offending member pilot for the excess."[113]
WHEREFORE, in view of all of the foregoing, the
consolidated petitions for review are DENIED and the assailed
decision of the Court of Appeals is AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and Del
Rosario, specifically its associate, Atty. Herbert A. Tria, is
REPRIMANDED and WARNED that a repetition of the same or
similar acts of heedless disregard of its undertakings under the
Rules shall be dealt with more severely.
The original members of the legal team of the Office of
the Solicitor General assigned to this case, namely, Assistant
Solicitor General Roman G. Del Rosario and Solicitor Luis F.
Simon, are ADMONISHED and WARNED that a repetition of
the same or similar acts of unduly delaying proceedings due to
delayed filing of required pleadings shall also be dealt with
more stringently.
The Solicitor General is DIRECTED to look into the
circumstances of this case and to adopt provident measures to
avoid a repetition of this incident and which would ensure
prompt compliance with orders of this Court regarding the
timely filing of requisite pleadings, in the interest of just, speedy
and orderly administration of justice.
Let copies of this decision be spread upon the personal
records of the lawyers named herein in the Office of the Bar
Confidant.
SO ORDERED.
20

[G.R. No. 141538. March 23, 2004]
Hermana R. Cerezo, petitioner, vs. David
Tuazon, respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari[1] to annul the
Resolution[2] dated 21 October 1999 of the Court of Appeals in
CA-G.R. SP No. 53572, as well as its Resolution dated 20
January 2000 denying the motion for reconsideration. The
Court of Appeals denied the petition for annulment of the
Decision[3] dated 30 May 1995 rendered by
the RegionalTrial Court of Angeles City, Branch 56 (trial court),
in Civil Case No. 7415. The trial court ordered petitioner
Hermana R. Cerezo (Mrs. Cerezo) to pay respondent David
Tuazon (Tuazon) actual damages, loss of earnings, moral
damages, and costs of suit.
Antecedent Facts
Around noontime of 26 June 1993, a Country Bus Lines
passenger bus with plate number NYA 241 collided with a
tricycle bearing plate number TC RV 126 along Captain M.
Palo Street, Sta. Ines, Mabalacat, Pampanga. On 1 October
1993, tricycle driver Tuazon filed a complaint for damages
against Mrs. Cerezo, as owner of the bus line, her husband
Attorney Juan Cerezo (Atty. Cerezo), and bus driver Danilo A.
Foronda (Foronda). The complaint alleged that:
7. At the time of the incident, plaintiff [Tuazon] was in his
proper lane when the second-named defendant [Foronda],
being then the driver and person in charge of the Country Bus
with plate number NYA 241, did then and there willfully,
unlawfully, and feloniously operate the said motor vehicle in a
negligent, careless, and imprudent manner without due regard
to traffic rules and regulations, there being a Slow Down sign
near the scene of the incident, and without taking the
necessary precaution to prevent loss of lives or injuries, his
negligence, carelessness and imprudence resulted to severe
damage to the tricycle and serious physical injuries to plaintiff
thus making him unable to walk and becoming disabled, with
his thumb and middle finger on the left hand being cut[.] [4]
On 1 October 1993, Tuazon filed a motion to litigate as a
pauper. Subsequently, the trial court issued summons against
Atty. Cerezo and Mrs. Cerezo (the Cerezo spouses) at
the Makati address stated in the complaint. However, the
summons was returned unserved on 10 November 1993 as the
Cerezo spouses no longer held office nor resided
in Makati. On 18 April 1994, the trial court issued alias
TORTS (BATCH 3)
summons against the Cerezo spouses at their address in
Barangay Sta. Maria, Camiling, Tarlac. The alias summons
and a copy of the complaint were finally served on 20 April
1994 at the office of Atty. Cerezo, who was then working as
Tarlac Provincial Prosecutor. Atty. Cerezo reacted angrily on
learning of the service of summons upon his person. Atty.
Cerezo allegedly told Sheriff William Canlas: Punyeta, ano ang
gusto mong mangyari? Gusto mong hindi ka makalabas ng
buhay dito? Teritoryo ko ito. Wala ka sa teritoryo mo.[5]
The records show that the Cerezo spouses participated in
the proceedings before the trial court. The Cerezo spouses
filed a comment with motion for bill of particulars dated 29 April
1994 and a reply to opposition to comment with motion
dated 13 June 1994.[6] On 1 August 1994, the trial court issued
an order directing the Cerezo spouses to file a comment to the
opposition to the bill of particulars. Atty. Elpidio B. Valera (Atty.
Valera) of Valera and Valera Law Offices appeared on behalf
of the Cerezo spouses. On 29 August 1994, Atty. Valera filed
an urgent ex-parte motion praying for the resolution of Tuazons
motion to litigate as a pauper and for the issuance of new
summons on the Cerezo spouses to satisfy proper service in
accordance with the Rules of Court.[7]
On 30 August 1994, the trial court issued an order
resolving Tuazons motion to litigate as a pauper and the
Cerezo spouses urgent ex-parte motion. The order reads:
At the hearing on August 30, 1994, the plaintiff [Tuazon]
testified that he is presently jobless; that at the time of the filing
of this case, his son who is working in Malaysia helps him and
sends him once in a while P300.00 a month, and that he does
not have any real property. Attached to the Motion to Litigate
as Pauper are his Affidavit that he is unemployed; a
Certification by the Barangay Captain of his poblacion that his
income is not enough for his familys subsistence; and a
Certification by the Office of the Municipal Assessor that he
has no landholding in
the Municipality of Mabalacat, Province of Pampanga.
The Court is satisfied from the unrebutted testimony of the
plaintiff that he is entitled to prosecute his complaint in this
case as a pauper under existing rules.
On the other hand, the Court denies the prayer in the
Appearance and Urgent Ex-Parte Motion requiring new
summons to be served to the defendants. The Court is of the
opinion that any infirmity in the service of the summons to the
defendant before plaintiff was allowed to prosecute his
complaint in this case as a pauper has been cured by this
Order.
If within 15 days from receipt of this Order, the defendants do
not question on appeal this Order of this Court, the Court shall
proceed to resolve the Motion for Bill of Particulars.[8]
On 27 September 1994, the Cerezo spouses filed an
urgent ex-parte motion for reconsideration. The trial court
denied the motion for reconsideration.
On 14 November 1994, the trial court issued an order
directing the Cerezo spouses to file their answer within fifteen
days from receipt of the order. The Cerezo spouses did not file
21

an answer. On 27 January 1995, Tuazon filed a motion to
declare the Cerezo spouses in default. On 6 February 1995,
the trial court issued an order declaring the Cerezo spouses in
default and authorizing Tuazon to present his evidence. [9]
On 30 May 1995, after considering Tuazons testimonial
and documentary evidence, the trial court ruled in Tuazons
favor. The trial court made no pronouncement on Forondas
liability because there was no service of summons on him. The
trial court did not hold Atty. Cerezo liable as Tuazon failed to
show that Mrs. Cerezos business benefited the family,
pursuant to Article 121(3) of the Family Code. The trial court
held Mrs. Cerezo solely liable for the damages sustained by
Tuazon arising from the negligence of Mrs. Cerezos employee,
pursuant to Article 2180 of the Civil Code. The dispositive
portion of the trial courts decision reads:
WHEREFORE, judgment is hereby rendered ordering the
defendant Hermana Cerezo to pay the plaintiff:
a) For Actual Damages
1) Expenses for operation and medical
Treatment - P69,485.35
2) Cost of repair of the tricycle - 39,921.00
b) For loss of earnings - 43,300.00
c) For moral damages - 20,000.00
d) And to pay the cost of the suit.
The docket fees and other expenses in the filing of this suit
shall be lien on whatever judgment may be rendered in favor of
the plaintiff.
SO ORDERED.[10]
Mrs. Cerezo received a copy of the decision on 25 June
1995. On 10 July 1995, Mrs. Cerezo filed before the trial court
a petition for relief from judgment on the grounds of fraud,
mistake or excusable negligence. Testifying before the trial
court, both Mrs. Cerezo and Atty. Valera denied receipt of
notices of hearings and of orders of the court. Atty. Valera
added that he received no notice before or during the 8 May
1995 elections, when he was a senatorial candidate for the
KBL Party, and very busy, using his office and residence as
Party National Headquarters. Atty. Valera claimed that he was
able to read the decision of the trial court only after Mrs.
Cerezo sent him a copy.[11]
Tuazon did not testify but presented documentary
evidence to prove the participation of the Cerezo spouses in
the case. Tuazon presented the following exhibits:
Exhibit 1 - Sheriffs return and summons;
Exhibit 1-A - Alias summons dated April 20, 1994;
Exhibit 2 - Comment with Motion;
Exhibit 3 - Minutes of the hearing held on August 1,
1994;
Exhibit 3-A - Signature of defendants counsel;
Exhibit 4 - Minutes of the hearing held on August 30,
1994;
Exhibit 4-A - Signature of the defendants counsel;
Exhibit 5 - Appearance and Urgent Ex-Parte Motion;
Exhibit 6 - Order dated November 14, 1994;
TORTS (BATCH 3)
Exhibit 6-A - Postal certification dated January 13,
1995;
Exhibit 7 - Order dated February [illegible];
Exhibit 7-A - Courts return slip addressed to Atty.
Elpidio
Valera;
Exhibit 7-B - Courts return slip addressed to
Spouses Juan
and Hermana Cerezo;
Exhibit 8 - Decision dated May [30], 1995
Exhibit 8-A - Courts return slip addressed to
defendant Hermana
Cerezo;
Exhibit 8-B - Courts return slip addressed to
defendants counsel,
Atty. Elpidio Valera;
Exhibit 9 - Order dated September 21, 1995;
Exhibit 9-A - Second Page of Exhibit 9;
Exhibit 9-B - Third page of Exhibit 9;
Exhibit 9-C - Fourth page of Exhibit 9;
Exhibit 9-D - Courts return slip addressed to Atty.
Elpidio Valera;
and
Exhibit 9-E - Courts return slip addressed to
plaintiffs counsel,
Atty. Norman Dick de Guzman.[12]
On 4 March 1998, the trial court issued an
order[13] denying the petition for relief from judgment. The trial
court stated that having received the decision on 25 June
1995, the Cerezo spouses should have filed a notice of appeal
instead of resorting to a petition for relief from judgment. The
trial court refused to grant relief from judgment because the
Cerezo spouses could have availed of the remedy of appeal.
Moreover, the Cerezo spouses not only failed to prove fraud,
accident, mistake or excusable negligence by conclusive
evidence, they also failed to prove that they had a good and
substantial defense. The trial court noted that the Cerezo
spouses failed to appeal because they relied on an expected
settlement of the case.
The Cerezo spouses subsequently filed before the Court
of Appeals a petition for certiorari under Section 1 of Rule
65. The petition was docketed as CA-G.R. SP No.
48132.[14] The petition questioned whether the trial court
acquired jurisdiction over the case considering there was no
service of summons on Foronda, whom the Cerezo spouses
claimed was an indispensable party. In a resolution [15] dated 21
January 1999, the Court of Appeals denied the petition
for certiorari and affirmed the trial courts order denying the
petition for relief from judgment. The Court of Appeals declared
that the Cerezo spouses failure to file an answer was due to
their own negligence, considering that they continued to
participate in the proceedings without filing an answer. There
was also nothing in the records to show that the Cerezo
spouses actually offered a reasonable settlement to
Tuazon. The Court of Appeals also denied Cerezo spouses
motion for reconsideration for lack of merit.
The Cerezo spouses filed before this Court a petition for
review on certiorari under Rule 45. Atty. Cerezo himself signed
the petition, docketed as G.R. No. 137593. On 13 April 1999,
this Court rendered a resolution denying the petition for review
on certiorari for failure to attach an affidavit of service of copies
22

of the petition to the Court of Appeals and to the adverse
parties. Even if the petition complied with this requirement, the
Court would still have denied the petition as the Cerezo
spouses failed to show that the Court of Appeals committed a
reversible error. The Courts resolution was entered in the Book
of Entries and Judgments when it became final and executory
on 28 June 1999.[16]
Undaunted, the Cerezo spouses filed before the Court of
Appeals on 6 July 1999 a petition for annulment of
judgment under Rule 47 with prayer for restraining order. Atty.
Valera and Atty. Dionisio S. Daga (Atty. Daga) represented
Mrs. Cerezo in the petition, docketed as CA-G.R. SP No.
53572.[17] The petition prayed for the annulment of the 30 May
1995 decision of the trial court and for the issuance of a writ of
preliminary injunction enjoining execution of the trial courts
decision pending resolution of the petition.
The Court of Appeals denied the petition for annulment of
judgment in a resolution dated 21 October 1999. The resolution
reads in part:
In this case, records show that the petitioner previously filed
with the lower court a Petition for Relief from Judgment on the
ground that they were wrongfully declared in default while
waiting for an amicable settlement of the complaint for
damages. The court a quo correctly ruled that such petition is
without merit. The defendant spouses admit that during the
initial hearing they appeared before the court and even
mentioned the need for an amicable settlement. Thus, the
lower court acquired jurisdiction over the defendant spouses.
Therefore, petitioner having availed of a petition for relief, the
remedy of an annulment of judgment is no longer
available. The proper action for the petitioner is to appeal the
order of the lower court denying the petition for relief.
Wherefore, the instant petition could not be given due course
and should accordingly be dismissed.
SO ORDERED.[18]
On 20 January 2000, the Court of Appeals denied the
Cerezo spouses motion for reconsideration. [19] The Court of
Appeals stated:
A distinction should be made between a courts jurisdiction over
a person and its jurisdiction over the subject matter of a
case. The former is acquired by the proper service of summons
or by the parties voluntary appearance; while the latter is
conferred by law.
Resolving the matter of jurisdiction over the subject matter,
Section 19(1) of B[atas] P[ambansa] 129 provides that
Regional Trial Courts shall exercise exclusive original
jurisdiction in all civil actions in which the subject of the
litigation is incapable of pecuniary estimation. Thus it was
proper for the lower court to decide the instant case for
damages.
Unlike jurisdiction over the subject matter of a case which is
absolute and conferred by law; any defects [sic] in the
TORTS (BATCH 3)
acquisition of jurisdiction over a person (i.e., improper filing of
civil complaint or improper service of summons) may be
waived by the voluntary appearance of parties.
The lower court admits the fact that no summons was served
on defendant Foronda. Thus, jurisdiction over the person of
defendant Foronda was not acquired, for which reason he was
not held liable in this case. However, it has been proven that
jurisdiction over the other defendants was validly acquired by
the court a quo.
The defendant spouses admit to having appeared in the initial
hearings and in the hearing for plaintiffs motion to litigate as a
pauper. They even mentioned conferences where attempts
were made to reach an amicable settlement with
plaintiff. However, the possibility of amicable settlement is not a
good and substantial defense which will warrant the granting of
said petition.
xxx
Assuming arguendo that private respondent failed to reserve
his right to institute a separate action for damages in the
criminal action, the petitioner cannot now raise such issue and
question the lower courts jurisdiction because petitioner and
her husband have waived such right by voluntarily appearing in
the civil case for damages. Therefore, the findings and the
decision of the lower court may bind them.
Records show that the petitioner previously filed with the lower
court a Petition for Relief from Judgment on the ground that
they were wrongfully declared in default while waiting for an
amicable settlement of the complaint for damages. The court a
quo correctly ruled that such petition is without merit,
jurisdiction having been acquired by the voluntary appearance
of defendant spouses.
Once again, it bears stressing that having availed of a petition
for relief, the remedy of annulment of judgment is no longer
available.
Based on the foregoing, the motion for reconsideration could
not be given due course and is hereby DENIED.
SO ORDERED.[20]
The Issues
On 7 February 2000, Mrs. Cerezo, this time with Atty.
Daga alone representing her, filed the present petition for
review on certiorari before this Court. Mrs. Cerezo claims that:
1. In dismissing the Petition for Annulment of
Judgment, the Court of Appeals assumes that
the issues raised in the petition for annulment is
based on extrinsic fraud related to the denied
petition for relief notwithstanding that the
23

grounds relied upon involves questions of lack of
jurisdiction.
2. In dismissing the Petition for Annulment, the
Court of Appeals disregarded the allegation that
the lower court[s] findings of negligence against
defendant-driver Danilo Foronda [whom] the
lower court did not summon is null and void for
want of due process and consequently, such
findings of negligence which is [sic] null and void
cannot become the basis of the lower court to
adjudge petitioner-employer liable for civil
damages.
3. In dismissing the Petition for Annulment, the
Court of Appeals ignored the allegation that
defendant-driver Danilo A. Foronda whose
negligence is the main issue is an indispensable
party whose presence is compulsory but [whom]
the lower court did not summon.
4. In dismissing the Petition for Annulment, the
Court of Appeals ruled that
assuming arguendo that private respondent
failed to reserve his right to institute a separate
action for damages in the criminal action, the
petitioner cannot now raise such issue and
question the lower courts jurisdiction because
petitioner [has] waived such right by voluntarily
appearing in the civil case for damages
notwithstanding that lack of jurisdiction cannot
be waived.[21]
The Courts Ruling
The petition has no merit. As the issues are interrelated,
we shall discuss them jointly.
Remedies Available
to a Party Declared in Default
An examination of the records of the entire proceedings
shows that three lawyers filed and signed pleadings on behalf
of Mrs. Cerezo, namely, Atty. Daga, Atty. Valera, and Atty.
Cerezo. Despite their number, Mrs. Cerezos counsels failed to
avail of the proper remedies. It is either by sheer ignorance or
by malicious manipulation of legal technicalities that they have
managed to delay the disposition of the present case, to the
detriment of pauper litigant Tuazon.
Mrs. Cerezo claims she did not receive any copy of the
order declaring the Cerezo spouses in default. Mrs. Cerezo
asserts that she only came to know of the default order on 25
June 1995, when she received a copy of the decision. On 10
July 1995, Mrs. Cerezo filed before the trial court a petition for
relief from judgment under Rule 38, alleging fraud, mistake, or
excusable negligence as grounds. On 4 March 1998, the trial
court denied Mrs. Cerezos petition for relief from
judgment. The trial court stated that Mrs. Cerezo could have
availed of appeal as a remedy and that she failed to prove that
the judgment was entered through fraud, accident, mistake, or
excusable negligence. Mrs. Cerezo then filed before the Court
of Appeals a petition for certiorari under Section 1 of Rule 65
TORTS (BATCH 3)
assailing the denial of the petition for relief from
judgment. On 21 January 1999, the Court of Appeals
dismissed Mrs. Cerezos petition. On 24 February 1999, the
appellate court denied Mrs. Cerezos motion for
reconsideration. On 11 March 1999, Mrs. Cerezo filed before
this Court a petition for review on certiorari under Rule 45,
questioning the denial of the petition for relief from
judgment. We denied the petition and our resolution became
final and executory on 28 June 1999.
On 6 July 1999, a mere eight days after our resolution
became final and executory, Mrs. Cerezo filed before the Court
of Appeals a petition for annulment of the judgment of the trial
court under Rule 47. Meanwhile, on 25 August 1999, the trial
court issued over the objection of Mrs. Cerezo an order of
execution of the judgment in Civil Case No. 7415. On 21
October 1999, the Court of Appeals dismissed the petition for
annulment of judgment. On 20 January 2000, the Court of
Appeals denied Mrs. Cerezos motion for reconsideration. On 7
February 2000, Mrs. Cerezo filed the present petition for review
on certiorari under Rule 45 challenging the dismissal of her
petition for annulment of judgment.
Lina v. Court of Appeals[22] enumerates the remedies
available to a party declared in default:
a) The defendant in default may, at any time after
discovery thereof and before judgment, file
a motion under oath to set aside the order of
default on the ground that his failure to answer
was due to fraud, accident, mistake or excusable
negligence, and that he has a meritorious
defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule
9]);
b) If the judgment has already been rendered when
the defendant discovered the default, but before
the same has become final and executory, he
may file a motion for new trialunder Section 1
(a) of Rule 37;
c) If the defendant discovered the default after the
judgment has become final and executory, he
may file a petition for relief under Section 2
[now Section 1] of Rule 38; and
d) He may also appeal from the judgment rendered
against him as contrary to the evidence or to the
law, even if no petition to set aside the order of
default has been presented by him (Sec. 2, Rule
41). (Emphasis added)
Moreover, a petition for certiorari to declare the nullity of a
judgment by default is also available if the trial court improperly
declared a party in default, or even if the trial court properly
declared a party in default, if grave abuse of discretion
attended such declaration.[23]
Mrs. Cerezo admitted that she received a copy of the trial
courts decision on 25 June 1995. Based on this admission,
Mrs. Cerezo had at least three remedies at her disposal: an
appeal, a motion for new trial, or a petition for certiorari.
Mrs. Cerezo could have appealed under Rule 41[24] from
the default judgment within 15 days from notice of the
judgment. She could have availed of the power of the Court of
Appeals to try cases and conduct hearings, receive evidence,
24

and perform all acts necessary to resolve factual issues raised
in cases falling within its appellate jurisdiction.[25]
Mrs. Cerezo also had the option to file under Rule 37 [26] a
motion for new trial within the period for taking an appeal. If the
trial court grants a new trial, the original judgment is vacated,
and the action will stand for trial de novo. The recorded
evidence taken in the former trial, as far as the same is
material and competent to establish the issues, shall be used
at the new trial without retaking the same.[27]
Mrs. Cerezo also had the alternative of filing under Rule
65[28] a petition for certiorari assailing the order of default within
60 days from notice of the judgment. An order of default is
interlocutory, and an aggrieved party may file an appropriate
special civil action under Rule 65.[29] In a petition for certiorari,
the appellate court may declare void both the order of default
and the judgment of default.
Clearly, Mrs. Cerezo had every opportunity to avail of
these remedies within the reglementary periods provided under
the Rules of Court. However, Mrs. Cerezo opted to file a
petition for relief from judgment, which is available only in
exceptional cases. A petition for relief from judgment should
be filed within the reglementary period of 60 days from
knowledge of judgment and six months from entry of judgment,
pursuant to
Rule 38 of the Rules of Civil Procedure.[30] Tuason v.
Court of Appeals[31] explained the nature of a petition for relief
from judgment:
When a party has another remedy available to him, which may
either be a motion for new trial or appeal from an adverse
decision of the trial court, and he was not prevented by fraud,
accident, mistake or excusable negligence from filing such
motion or taking such appeal, he cannot avail himself of this
petition. Indeed, relief will not be granted to a party who seeks
avoidance from the effects of the judgment when the loss of
the remedy at law was due to his own negligence; otherwise
the petition for relief can be used to revive the right to appeal
which has been lost thru inexcusable negligence.
Evidently, there was no fraud, accident, mistake, or
excusable negligence that prevented Mrs. Cerezo from filing an
appeal, a motion for new trial or a petition for certiorari.It was
error for her to avail of a petition for relief from judgment.
After our resolution denying Mrs. Cerezos petition for
relief became final and executory, Mrs. Cerezo, in her last ditch
attempt to evade liability, filed before the Court of Appeals a
petition for annulment of the judgment of the trial
court. Annulment is available only on the grounds of extrinsic
fraud and lack of jurisdiction. If based on extrinsic fraud, a party
must file the petition within four years from its discovery, and if
based on lack of jurisdiction, before laches or estoppel bars the
petition. Extrinsic fraud is not a valid ground if such fraud was
used as a ground, or could have been used as a ground, in a
motion for new trial or petition for relief from judgment. [32]
Mrs. Cerezo insists that lack of jurisdiction, not extrinsic
fraud, was her ground for filing the petition for annulment of
judgment. However, a party may avail of the remedy of
annulment of judgment under Rule 47 only if the ordinary
remedies of new trial, appeal, petition for relief from judgment,
TORTS (BATCH 3)
or other appropriate remedies are no longer available through
no fault of the party.[33] Mrs. Cerezo could have availed of a
new trial or appeal but through her own fault she erroneously
availed of the remedy of a petition for relief, which was denied
with finality. Thus, Mrs. Cerezo may no longer avail of the
remedy of annulment.
In any event, the trial court clearly acquired jurisdiction
over Mrs. Cerezos person. Mrs. Cerezo actively participated in
the proceedings before the trial court, submitting herself to the
jurisdiction of the trial court. The defense of lack of jurisdiction
fails in light of her active participation in the trial court
proceedings. Estoppel or laches may also bar lack of
jurisdiction as a ground for nullity especially if raised for the first
time on appeal by a party who participated in the proceedings
before the trial court, as what happened in this case.[34]
For these reasons, the present petition should be
dismissed for utter lack of merit. The extraordinary action to
annul a final judgment is restricted to the grounds specified in
the rules. The reason for the restriction is to prevent this
extraordinary action from being used by a losing party to make
a complete farce of a duly promulgated decision that has long
become final and executory. There would be no end to
litigation if parties who have unsuccessfully availed of any of
the appropriate remedies or lost them through their fault could
still bring an action for annulment of judgment.[35] Nevertheless,
we shall discuss the issues raised in the present petition to
clear any doubt about the correctness of the decision of the
trial court.
Mrs. Cerezos Liability and the
Trial Courts Acquisition of Jurisdiction
Mrs. Cerezo contends that the basis of the present
petition for annulment is lack of jurisdiction. Mrs. Cerezo
asserts that the trial court could not validly render judgment
since it failed to acquire jurisdiction over Foronda. Mrs. Cerezo
points out that there was no service of summons on
Foronda. Moreover, Tuazon failed to reserve his right to
institute a separate civil action for damages in the criminal
action. Such contention betrays a faulty foundation. Mrs.
Cerezos contention proceeds from the point of view of criminal
law and not of civil law, while the basis of the present action of
Tuazon is quasi-delict under the Civil Code, not delict under
the Revised Penal Code.
The same negligent act may produce civil liability arising
from a delict under Article 103 of the Revised Penal Code, or
may give rise to an action for a quasi-delict under Article 2180
of the Civil Code. An aggrieved party may choose between the
two remedies. An action based on a quasi-delict may proceed
independently from the criminal action.[36] There is, however, a
distinction between civil liability arising from a delict and civil
liability arising from a quasi-delict. The choice of remedy,
whether to sue for a delict or a quasi-delict, affects the
procedural and jurisdictional issues of the action.[37]
Tuazon chose to file an action for damages based on a
quasi-delict. In his complaint, Tuazon alleged that Mrs. Cerezo,
without exercising due care and diligence in the supervision
and management of her employees and buses, hired Foronda
as her driver. Tuazon became disabled because of Forondas
recklessness, gross negligence and imprudence, aggravated
25

by Mrs. Cerezos lack of due care and diligence in the selection
and supervision of her employees, particularly Foronda. [38]
The trial court thus found Mrs. Cerezo liable under Article
2180 of the Civil Code. Article 2180 states in part:
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged
in any business or industry.
Contrary to Mrs. Cerezos assertion, Foronda is not an
indispensable party to the case. An indispensable party is one
whose interest is affected by the courts action in the litigation,
and without whom no final resolution of the case is
possible.[39] However, Mrs. Cerezos liability as an employer in
an action for a quasi-delict is not only solidary, it is also primary
and direct. Foronda is not an indispensable party to the final
resolution of Tuazons action for damages against Mrs. Cerezo.
The responsibility of two or more persons who are liable
for a quasi-delict is solidary.[40] Where there is a solidary
obligation on the part of debtors, as in this case, each debtor is
liable for the entire obligation. Hence, each debtor is liable to
pay for the entire obligation in full. There is no merger or
renunciation of rights, but only mutual representation.[41] Where
the obligation of the parties is solidary, either of the parties is
indispensable, and the other is not even a necessary party
because complete relief is available from either. [42] Therefore,
jurisdiction over Foronda is not even necessary as Tuazon may
collect damages from Mrs. Cerezo alone.
Moreover, an employers liability based on a quasi-delict is
primary and direct, while the employers liability based on a
delict is merely subsidiary.[43] The words primary and direct, as
contrasted with subsidiary, refer to the remedy provided by law
for enforcing the obligation rather than to the character and
limits of the obligation.[44] Although liability under Article 2180
originates from the negligent act of the employee, the
aggrieved party may sue the employer directly. When an
employee causes damage, the law presumes that the
employer has himself committed an act of negligence in not
preventing or avoiding the damage. This is the fault that the
law condemns. While the employer is civilly liable in a
subsidiary capacity for the employees criminal negligence, the
employer is also civilly liable directly and separately for his own
civil negligence in failing to exercise due diligence in selecting
and supervising his employee. The idea that the employers
liability is solely subsidiary is wrong.[45]
The action can be brought directly against the person
responsible (for another), without including the author of the
act. The action against the principal is accessory in the sense
that it implies the existence of a prejudicial act committed by
the employee, but it is not subsidiary in the sense that it can
not be instituted till after the judgment against the author of the
act or at least, that it is subsidiary to the principal action; the
action for responsibility (of the employer) is in itself a principal
action.[46]
Thus, there is no need in this case for the trial court to
acquire jurisdiction over Foronda. The trial courts acquisition of
TORTS (BATCH 3)
jurisdiction over Mrs. Cerezo is sufficient to dispose of the
present case on the merits.
In contrast, an action based on a delict seeks to enforce
the subsidiary liability of the employer for the criminal
negligence of the employee as provided in Article 103 of the
Revised Penal Code. To hold the employer liable in a
subsidiary capacity under a delict, the aggrieved party must
initiate a criminal action where the employees delict and
corresponding primary liability are established. [47] If the present
action proceeds from a delict, then the trial courts jurisdiction
over Foronda is necessary. However, the present action is
clearly for the quasi-delict of Mrs. Cerezo and not for the delict
of Foronda.
The Cerezo spouses contention that summons be served
anew on them is untenable in light of their participation in the
trial court proceedings. To uphold the Cerezo spouses
contention would make a fetish of a technicality. [48] Moreover,
any irregularity in the service of summons that might have
vitiated the trial courts jurisdiction over the persons of the
Cerezo spouses was deemed waived when the Cerezo
spouses filed a petition for relief from judgment.[49]
We hold that the trial court had jurisdiction and was
competent to decide the case in favor of Tuazon and against
Mrs. Cerezo even in the absence of Foronda. Contrary to Mrs.
Cerezos contention, Foronda is not an indispensable party to
the present case. It is not even necessary for Tuazon to
reserve the filing of a separate civil action because he opted to
file a civil action for damages against Mrs. Cerezo who is
primarily and directly liable for her own civil negligence. The
words of Justice Jorge Bocobo in Barredo v. Garcia still hold
true today as much as it did in 1942:
x x x [T]o hold that there is only one way to make defendants
liability effective, and that is, to sue the driver and exhaust his
(the latters) property first, would be tantamount to compelling
the plaintiff to follow a devious and cumbersome method of
obtaining relief. True, there is such a remedy under our laws,
but there is also a more expeditious way, which is based on the
primary and direct responsibility of the defendant under article
[2180] of the Civil Code. Our view of the law is more likely to
facilitate remedy for civil wrongs, because the procedure
indicated by the defendant is wasteful and productive of delay,
it being a matter of common knowledge that professional
drivers of taxis and other similar public conveyances do not
have sufficient means with which to pay damages. Why, then,
should the plaintiff be required in all cases to go through this
roundabout, unnecessary, and probably useless procedure? In
construing the laws, courts have endeavored to shorten and
facilitate the pathways of right and justice.[50]
Interest at the rate of 6% per annum is due on the amount
of damages adjudged by the trial court. [51] The 6% per
annum interest shall commence from 30 May 1995, the date of
the decision of the trial court. Upon finality of this decision,
interest at 12% per annum, in lieu of 6% per annum, is due on
the amount of damages adjudged by the trial court until full
payment.
WHEREFORE, we DENY the instant petition for
review. The Resolution dated 21 October 1999 of the Court of
Appeals in CA-G.R. SP No. 53572, as well as its Resolution
26
 TORTS (BATCH 3)

dated 20 January 2000 denying the motion for reconsideration,
is AFFIRMED with the MODIFICATION that the amount due
shall earn legal interest at 6% per annum computed from 30
May 1995, the date of the trial courts decision. Upon finality of
this decision, the amount due shall earn interest at 12% per
annum, in lieu of 6% per annum, until full payment.
SO ORDERED.
REGALADO, J.:
One of the ironic verities of life, it has been said, is that sorrow
is sometimes a touchstone of love. A tragic illustration is
provided by the instant case, wherein two lovers died while still
in the prime of their years, a bitter episode for those whose
lives they have touched. While we cannot expect to award
complete assuagement to their families through seemingly
prosaic legal verbiage, this disposition should at least terminate
the acrimony and rancor of an extended judicial contest
resulting from the unfortunate occurrence.

EN BANC In this final denouement of the judicial recourse the stages

whereof were alternately initiated by the parties, petitioners are
[G.R. No. 70890. September 18, 1992.] now before us seeking the reversal of the judgment of
respondent court promulgated on January 2, 1985 in AC-G.R.
CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. CV No. 69060 with the following decretal
HON. INTERMEDIATE APPELLATE COURT, FELIPE portion:jgc:chanrobles.com.ph
GOTIONG and SHIRLEY GOTIONG, Respondents.
"WHEREFORE, the decision of the lower court dismissing
Alex Y. Tan, for Petitioners. plaintiff’s complaint is hereby reversed; and instead, judgment
is hereby rendered sentencing defendants, jointly and
Mario D. Ortiz and Danilo V. Ortiz for Private Respondents. solidarily, to pay to plaintiffs the following
amounts:chanrobles.com : virtual law library

SYLLABUS 1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR
CIVIL LIABILITY ARISING FROM CRIMINAL OFFENSES
COMMITTED BY THEIR MINOR CHILDREN; RULE. — The
parents are and should be held primarily liable for the civil
liability arising from criminal offenses committed by their minor
children under their legal authority or control, or who live in
their company, unless it is proven that the former acted with
the diligence of a good father of a family to prevent such
damages. That primary liability is premised on the provisions of
Article 101 of the Revised Penal Code with respect to damages
ex delicto caused by their children 9 years of age or under, or
over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under
15 years of age who acted with discernment, or 15 years or
over but under 21 years of age, such primary liability shall be
imposed pursuant to Article 2180 of the Civil Code. Under said
Article 2180, the enforcement of such liability shall be effected
against the father and, in case of his death or incapacity, the
mother. This was amplified by the Child and Youth Welfare
Code which provides that the same shall devolve upon the
father and, in case of his death or incapacity, upon the mother
or, in case of her death or incapacity, upon the guardian, but
the liability may also be voluntarily assumed by a relative or
family friend of the youthful offender. However, under the
Family Code, this civil liability is now, without such alternative
qualification, the responsibility of the parents and those who
exercise parental authority over the minor offender. For civil
liability arising from quasi-delicts committed by minors, the
same rules shall apply in accordance with Articles 2180 and
2182 of the Civil Code, as so modified.
DECISION
3. Attorney’s fees, P20,000.00, and costs.
However, denial of defendants-appellees’ counterclaims is
affirmed." 1
Synthesized from the findings of the lower courts, it appears
that respondent spouses are the legitimate parents of Julie Ann
Gotiong who, at the time of the deplorable incident which took
place and from which she died on January 14, 1979, was an
18-year old first year commerce student of the University of
San Carlos, Cebu City; while petitioners are the parents of
Wendell Libi, then a minor between 18 and 19 years of age
living with his aforesaid parents, and who also died in the same
event on the same date.
For more than two (2) years before their deaths, Julie Ann
Gotiong and Wendell Libi were sweethearts until December,
1978 when Julie Ann broke up her relationship with Wendell
after she supposedly found him to be sadistic and
irresponsible. During the first and second weeks of January,
1979, Wendell kept pestering Julie Ann with demands for
reconciliation but the latter persisted in her refusal, prompting
the former to resort to threats against her. In order to avoid
him, Julie Ann stayed in the house of her best friend, Malou
Alfonso, at the corner of Maria Cristina and Juana Osmeña
Streets, Cebu City, from January 7 to 13, 1978.
On January 14, 1979, Julie Ann and Wendell died, each from a
single gunshot wound inflicted with the same firearm, a Smith
and Wesson revolver licensed in the name of petitioner
Cresencio Libi, which was recovered from the scene of the
crime inside the residence of private respondents at the corner
of General Maxilom and D. Jakosalem streets of the same city.

27

Due to the absence of an eyewitness account of the
circumstances surrounding the death of both minors, their
parents, who are the contending parties herein, posited their
respective theories drawn from their interpretation of
circumstantial evidence, available reports, documents and
evidence of physical facts.
Private respondents, bereaved over the death of their
daughter, submitted that Wendell caused her death by
shooting her with the aforesaid firearm and, thereafter, turning
the gun on himself to commit suicide. On the other
hand, Petitioners, puzzled and likewise distressed over the
death of their son, rejected the imputation and contended that
an unknown third party, whom Wendell may have displeased
or antagonized by reason of his work as a narcotics informer of
the Constabulary Anti-Narcotics Unit (CANU), must have
caused Wendell’s death and then shot Julie Ann to eliminate
any witness and thereby avoid
identification.chanrobles.com:cralaw:red
As a result of the tragedy, the parents of Julie Ann filed Civil
Case No. R-17774 in the then Court of First Instance of Cebu
against the parents of Wendell to recover damages arising
from the latter’s vicarious liability under Article 2180 of the Civil
Code. After trial, the court below rendered judgment on
October 20, 1980 as follows:jgc:chanrobles.com.ph
"WHEREFORE, premises duly considered, judgment is hereby
rendered dismissing plaintiffs’ complaint for insufficiency of the
evidence. Defendants’ counterclaim is likewise denied for lack
of sufficient merit." 2 "Q Is it not a fact that there are certain guns which are so made
On appeal to respondent court, said judgment of the lower
court dismissing the complaint of therein plaintiffs-appellants
was set aside and another judgment was rendered against
defendants-appellees who, as petitioners in the present appeal
by certiorari, now submit for resolution the following issues in
this case:chanrob1es virtual 1aw library
1. Whether or not respondent court correctly reversed the trial
court in accordance with established decisional laws; and
2. Whether or not Article 2180 of the Civil Code was correctly
interpreted by respondent court to make petitioners liable for
vicarious liability. 3 A If the . . . assuming that the gun used was .. the bullet used
In the proceedings before the trial court, Dr. Jesus P. Cerna,
Police Medico-Legal Officer of Cebu, submitted his findings
and opinions on some postulates for determining whether or
not the gunshot wound was inflicted on Wendell Libi by his own
suicidal act. However, undue emphasis was placed by the
lower court on the absence of gunpowder or tattooing around
the wound at the point of entry of the bullet. It should be
emphasized, however, that this is not the only circumstance to
be taken into account in the determination of whether it was
suicide or not.
It is true that said witness declared that he found no evidence
of contact or close-contact of an explosive discharge in the
entrance wound. However, as pointed out by private
respondents, the body of deceased Wendell Libi must have
been washed at the funeral parlor, considering the hasty
interment thereof a little after eight (8) hours from the
occurrence wherein he died. Dr. Cerna himself could not
TORTS (BATCH 3)
categorically state that the body of Wendell Libi was left
untouched at the funeral parlor before he was able to conduct
his autopsy. It will also be noted that Dr. Cerna was negligent
in not conducting a paraffin test on Wendell Libi, hence
possible evidence of gunpowder residue on Wendell’s hands
was forever lost when Wendell was hastily buried.cralawnad
More specifically, Dr. Cerna testified that he conducted an
autopsy on the body of Wendell Libi about eight (8) hours after
the incident or, to be exact, eight (8) hours and twenty (20)
minutes based on the record of death; that when he arrived at
the Cosmopolitan Funeral Homes, the body of the deceased
was already on the autopsy table and in the stage of rigor
mortis; and that said body was not washed, but it was dried. 4
However, on redirect examination, he admitted that during the
8-hour interval, he never saw the body nor did he see whether
said body was wiped or washed in the area of the wound on
the head which he examined because the deceased was inside
the morgue. 5 In fact, on cross-examination, he had earlier
admitted that as far as the entrance of the wound, the
trajectory of the bullet and the exit of the wound are concerned,
it is possible that Wendell Libi shot himself. 6
He further testified that the muzzle of the gun was not pressed
on the head of the victim and that he found no burning or
singeing of the hair or extensive laceration on the gunshot
wound of entrance which are general characteristics of contact
or near-contact fire. On direct examination, Dr. Cerna
nonetheless made these clarification:jgc:chanrobles.com.ph
that there would be no black residue or tattooing that could
result from these guns because they are what we call clean?
A Yes, sir. I know that there are what we call smokeless
powder.
ATTY. ORTIZ:chanrob1es virtual 1aw library
Q Yes. So, in cases, therefore, of guns where the powder is
smokeless, those indications that you said may not rule out the
possibility that the gun was closer than 24 inches, is that
correct?
was a smokeless powder.
Q At any rate, doctor, from . . . disregarding those other
matters that you have noticed, the singeing, etc., from the
trajectory, based on the trajectory of the bullet as shown in
your own sketch, is it not a fact that the gun could have been
fired by the person himself, the victim himself, Wendell Libi,
because it shows a point of entry a little above the right ear and
point of exit a little above that, to be very fair and on your oath?
A As far as the point of entrance is concerned and as far as the
trajectory of the bullet is concerned and as far as the angle or
the manner of fire is concerned, it could have been fired by the
victim." 7
As shown by the evidence, there were only two used bullets 8
found at the scene of the crime, each of which were the bullets
that hit Julie Ann Gotiong and Wendell Libi, respectively. Also,
the sketch prepared by the Medico-Legal Division of the
28
 TORTS (BATCH 3)

National Bureau of Investigation, 9 shows that there is only one from the gate of the Gotiongs to the rooftop of the Tans, she
gunshot wound of entrance located at the right temple of called the police station but the telephone lines were busy.
Wendell Libi. The necropsy report prepared by Dr. Cerna Later on, she talked with James Enrique Tan and told him that
states:chanrob1es virtual 1aw library she saw a man leap from the gate towards his rooftop. 13

x x x However, James Enrique Tan testified that he saw a "shadow"

on top of the gate of the Gotiongs, but denied having talked
with anyone regarding what he saw. He explained that he lives
"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with in a duplex house with a garden in front of it; that his house is
contusion collar widest inferiorly by 0.2 cm., edges inverted, next to Felipe Gotiong’s house; and he further gave the
oriented upward, located at the head, temporal region, right, following answers to these questions:chanrobles.com : virtual
2.8 cms. behind and 5.5 cms. above right external auditory law library
meatus, directed slightly forward, upward and to the left,
involving skin and soft tissues, making a punch-in fracture on "ATTY. ORTIZ: (TO WITNESS).
the temporal bone, right, penetrating cranial cavity, lacerating
extensively along its course the brain tissues, fracturing Q What is the height of the wall of the Gotiong’s in relation to
parietal bone, left, and finally making an EXIT wound, irregular, your house?
2.0 x 1.8 cms., edges (e)verted, parietal region, left, 2.0 cms.
behind and 12.9 cms. above left external auditory WITNESS:chanrob1es virtual 1aw library
meatus.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph A It is about 8 feet.

x x x ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

"Evidence of contact or close-contact fire, such as burning
around the gunshot wound of entrance, gunpowder tatooing WITNESS:chanrob1es virtual 1aw library
(sic), smudging, singeing of hair, extensive laceration or
bursting of the gunshot wound of entrance, or separation of the A From upstairs in my living room.
skin from the underlying tissue, are absent." 10
ATTY. ORTIZ (TO WITNESS)
On cross-examination, Dr. Cerna demonstrated his theory
which was made of record, thus:jgc:chanrobles.com.ph Q From Your living room window, is that correct?

"Q Now, will you please use yourself as Wendell Libi, and WITNESS:chanrob1es virtual 1aw library
following the entrance of the wound, the trajectory of the bullet
and the exit of the wound, and measuring yourself 24 inches, A Yes, but not very clear because the wall is high." 14
will you please indicate to the Honorable Court how would it
have been possible for Wendell Libi to kill himself? Will you Analyzing the foregoing testimonies, we agree with respondent
please indicate the 24 inches? court that the same do not inspire credence as to the reliability
and accuracy of the witnesses’ observations, since the visual
WITNESS:chanrob1es virtual 1aw library perceptions of both were obstructed by high walls in their
respective houses in relation to the house of herein private
A Actually, sir, the 24 inches is approximately one arm’s length. respondents. On the other hand, witness Manolo Alfonso,
testifying on rebuttal, attested without contradiction that he and
ATTY. SENINING:chanrob1es virtual 1aw library his sister, Malou Alfonso, were waiting for Julie Ann Gotiong
when they heard her scream; that when Manolo climbed the
I would like to make of record that the witness has fence to see what was going on inside the Gotiong house, he
demonstrated by extending his right arm almost straight heard the first shot; and, not more than five (5) seconds later,
towards his head." 11 he heard another shot. Consequently, he went down from the
fence and drove to the police station to report the incident. 15
Private respondents assail the fact that the trial court gave Manolo’s direct and candid testimony establishes and explains
credence to the testimonies of defendants’ witnesses Lydia the fact that it was he whom Lydia Ang and James Enrique Tan
Ang and James Enrique Tan, the first being a resident of an saw as the "shadow" of a man at the gate of the Gotiong
apartment across the street from the Gotiongs and the second, house.
a resident of the house adjacent to the Gotiong residence, who
declared having seen a "shadow" of a person at the gate of the We have perforce to reject petitioners’ effete and
Gotiong house after hearing shots therefrom. unsubstantiated pretension that it was another man who shot
Wendell and Julie Ann. It is significant that the Libi family did
On cross-examination, Lydia Ang testified that the apartment not even point to or present any suspect in the crime nor did
where she was staying faces the gas station; that it is the they file any case against any alleged "John Doe." Nor can we
second apartment; that from her window she can see directly sustain the trial court’s dubious theory that Wendell Libi did not
the gate of the Gotiongs and, that there is a firewall between die by his own hand because of the overwhelming evidence —
her apartment and the gas station. 12 After seeing a man jump testimonial, documentary and pictorial — the confluence of
29

which point to Wendell as the assailant of Julie Ann, his motive
being revenge for her rejection of his persistent pleas for a
reconciliation.chanrobles.com:cralaw:red
Petitioners’ defense that they had exercised the due diligence
of a good father of a family, hence they should not be civilly
liable for the crime committed by their minor son, is not borne
out by the evidence on record either.
Petitioner Amelita Yap Libi, mother of Wendell, testified that
her husband, Cresencio Libi, owns a gun which he kept in a
safety deposit box inside a drawer in their bedroom. Each of
these petitioners holds a key to the safety deposit box and
Amelita’s key is always in her bag, all of which facts were
known to Wendell. They have never seen their son Wendell
taking or using the gun. She admitted, however, that on that
fateful night the gun was no longer in the safety deposit box. 16
We, accordingly, cannot but entertain serious doubts that
petitioner spouses had really been exercising the diligence of a
good father of a family by safely locking the fatal gun away.
Wendell could not have gotten hold thereof unless one of the
keys to the safety deposit box was negligently left lying around
or he had free access to the bag of his mother where the other
key was.
The diligence of a good father of a family required by law in a
parent and child relationship consists, to a large extent, of the
instruction and supervision of the child. Petitioners were
gravely remiss in their duties as parents in not diligently
supervising the activities of their son, despite his minority and
immaturity, so much so that it was only at the time of Wendell’s
death that they allegedly discovered that he was a CANU
agent and that Cresencio’s gun was missing from the safety
deposit box. Both parents were sadly wanting in their duty and
responsibility in monitoring and knowing the activities of their
children who, for all they know, may be engaged in dangerous
work such as being drug informers, 17 or even drug users.
Neither was a plausible explanation given for the photograph of
Wendell, with a handwritten dedication to Julie Ann at the back
thereof, 18 holding upright what clearly appears as a revolver
and on how or why he was in possession of that firearm.
In setting aside the judgment of the court a quo and holding
petitioners civilly liable, as explained at the start of this opinion,
respondent court waved aside the protestations of diligence on
the part of petitioners and had this to
say:jgc:chanrobles.com.ph
". . . It is still the duty of parents to know the activity of their
children who may be engaged in this dangerous activity
involving the menace of drugs. Had the defendants-appellees
been diligent in supervising the activities of their son, Wendell,
and in keeping said gun from his reach, they could have
prevented Wendell from killing Julie Ann Gotiong. Therefore,
appellants are liable under Article 2180 of the Civil Code which
provides:chanrob1es virtual 1aw library
‘The father, and in case of his death or incapacity, the mother,
are responsible for the damages caused by their minor children
who live in their company.’
"Having been grossly negligent in preventing Wendell Libi from
having access to said gun which was allegedly kept in a safety
deposit box, defendants-appellees are subsidiarily liable for the
TORTS (BATCH 3)
natural consequence of the criminal act of said minor who was
living in their company. This vicarious liability of herein
defendants-appellees has been reiterated by the Supreme
Court in many cases, prominent of which is the case of Fuellas
v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367),
which held that:chanrob1es virtual 1aw library
‘The subsidiary liability of parents for damages caused by their
minor children imposed by Article 2180 of the New Civil Code
covers obligations arising from both quasi-delicts and criminal
offenses.’
‘The subsidiary liability of parent’s arising from the criminal acts
of their minor children who acted with discernment is
determined under the provisions of Article 2180, N.C.C. and
under Article 101 of the Revised Penal Code, because to hold
that the former only covers obligations which arise from quasi-
delicts and not obligations which arise from criminal offenses,
would result in the absurdity that while for an act where mere
negligence intervenes the father or mother may stand
subsidiarily liable for the damages caused by his or her son, no
liability would attach if the damage is caused with criminal
intent.’ (3 SCRA 361-362).
". . . In the instant case, minor son of herein defendants-
appellees, Wendell Libi somehow got hold of the key to the
drawer where said gun was kept under lock without defendant-
spouses ever knowing that said gun had been missing from
that safety box since 1978 when Wendell Libi had) a picture
taken wherein he proudly displayed said gun and dedicated
this picture to his sweetheart, Julie Ann Gotiong; also since
then, Wendell Libi was said to have kept said gun in his car, in
keeping up with his supposed role of a CANU agent . .
." chanrobles lawlibrary : rednad
x x x
"Based on the foregoing discussions of the assigned errors,
this Court holds that the lower court was not correct in
dismissing herein plaintiffs-appellants’ complaint because as
preponderantly shown by evidence, defendants-appellees
utterly failed to exercise all the diligence of a good father of the
family in preventing their minor son from committing this crime
by means of the gun of defendants-appellees which was freely
accessible to Wendell Libi for they have not regularly checked
whether said gun was still under lock, but learned that it was
missing from the safety deposit box only after the crime had
been committed." (Emphases ours.) 19
We agree with the conclusion of respondent court that
petitioners should be held liable for the civil liability based on
what appears from all indications was a crime committed by
their minor son. We take this opportunity, however, to digress
and discuss its ratiocination therefor on jurisprudential dicta
which we feel require clarification.
In imposing sanctions for the so-called vicarious liability of
petitioners, respondent court cites Fuellas v. Cadano, Et. Al. 20
which supposedly holds that" (t)he subsidiary liability of parents
for damages caused by their minor children imposed by Article
2180 of the New Civil Code covers obligations arising from
both quasi-delicts and criminal offenses," followed by an
extended quotation ostensibly from the same case explaining
30

why under Article 2180 of the Civil Code and Article 101 of the
Revised Penal Code parents should assume subsidiary liability
for damages caused by their minor children. The quoted
passages are set out two paragraphs back, with pertinent
underscoring for purposes of the discussion
hereunder.chanrobles law library
Now, we do not have any objection to the doctrinal rule
holding, the parents liable, but the categorization of their
liability as being subsidiary, and not primary, in nature requires
a hard second look considering previous decisions of this court
on the matter which warrant comparative analyses. Our
concern stems from our readings that if the liability of the
parents for crimes or quasi-delicts of their minor children is
subsidiary, then the parents can neither invoke nor be
absolved of civil liability on the defense that they acted with the
diligence of a good father of a family to prevent damages. On
the other hand, if such liability imputed to the parents is
considered direct and primary, that diligence would constitute a
valid and substantial defense.
We believe that the civil liability of parents for quasi-delicts of
their minor children, as contemplated in Article 2180 of the Civil
Code, is primary and not subsidiary. In fact, if we apply Article
2194 of said code which provides for solidary liability of joint
tortfeasors, the persons responsible for the act or omission, in
this case the minor and the father and, in case of his death of
incapacity, the mother, are solidarily liable. Accordingly, such
parental liability is primary and not subsidiary, hence the last
paragraph of Article 2180 provides that" (t)he responsibility
treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good
father of a family to prevent damages."cralaw virtua1aw library
We are also persuaded that the liability of the parents for
felonies committed by their minor children is likewise primary,
not subsidiary. Article 101 of the Revised Penal Code
provides:jgc:chanrobles.com.ph
"ARTICLE 101. Rules regarding civil liability in certain cases.
— involving either crimes or quasi-delicts of their minor children,
x x x
First. In cases of subdivisions . . . 2, and 3 of Article 12, the
civil liability for acts committed by . . . a person under nine
years of age, or by one over nine but under fifteen years of
age, who has acted without discernment, shall devolve upon
those having such person under their legal authority or control,
unless it appears that there was no fault or negligence on their
part." (Emphasis supplied.) 21
Accordingly, just like the rule in Article 2180 of the Civil Code,
under the foregoing provision the civil liability of the parents for
crimes committed by their minor children is likewise direct and
primary, and also subject to the defense of lack of fault or
negligence on their part, that is, the exercise of the diligence of
a good father of a family.
That in both quasi-delicts and crimes the parents primarily
respond for such damages is buttressed by the corresponding
provisions in both codes that the minor transgressor shall be
TORTS (BATCH 3)
answerable or shall respond with his own property only in the
absence or in case of insolvency of the former. Thus, for civil
liability ex quasi delicto of minors, Article 2182 of the Civil Code
states that" (i)f the minor causing damage has no parents or
guardian, the minor . . . shall be answerable with his own
property in an action against him where a guardian ad litem
shall be appointed." For civil liability ex delicto of minors, an
equivalent provision is found in the third paragraph of Article
101 of the Revised Penal Code, to wit:jgc:chanrobles.com.ph
"Should there be no person having such . . . minor under his
authority, legal guardianship or control, or if such person be
insolvent, said . . . minor shall respond with (his) own property,
excepting property exempt from execution, in accordance with
civil law."cralaw virtua1aw library
The civil liability of parents for felonies committed by their
minor children contemplated in the aforesaid rule in Article 101
of the Revised Penal Code in relation to Article 2180 of the
Civil Code has, aside from the aforecited case of Fuellas, been
the subject of a number of cases adjudicated by this Court,
viz.: Exconde v. Capuno, Et Al., 22 Araneta v. Arreglado, 23
Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v. Bangkili, Et
Al., 25 and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the
aforesaid cases were basically on the issue of the civil liability
of parents for crimes committed by their minor children over 9
but under 15 years of age, who acted with discernment, and
also of minors 15 years of aye or over, since these situations
are not covered by Article 101, Revised Penal Code. In both
instances, this Court held that the issue of parental civil liability
should be resolved in accordance with the provisions of Article
2180 of the Civil Code for the reasons well expressed in Salen
and adopted in the cases hereinbefore enumerated that to hold
that the civil liability under Article 2180 would apply only to
quasi-delicts and not to criminal offenses would result in the
absurdity that in an act involving mere negligence the parents
would be liable but not where the damage is caused with
criminal intent. In said cases, however, there are unfortunate
variances resulting in a regrettable inconsistency in the Court’s
determination of whether the liability of the parents, in cases
is primary or subsidiary.
In Exconde, where the 15-year old minor was convicted of
double homicide through reckless imprudence, in a separate
civil action arising from the crime the minor and his father were
held jointly and severally liable for failure of the latter to prove
the diligence of a good father of a family. The same liability in
solidum and, therefore, primary liability was imposed in a
separate civil action in Araneta on the parents and their 14-
year old son who was found guilty of frustrated homicide, but
on the authority of Article 2194 of the Civil Code providing for
solidary responsibility of two or more persons who are liable for
a quasi-delict.
However, in Salen, the father was declared subsidiarily liable
for damages arising from the conviction of his son, who was
over 15 but less than 18 years of age, by applying Article 2180
but, this time, disregarding Article 2194 of the Civil Code. In the
present case, as already explained, the petitioners herein were
also held liable but supposedly in line with Fuellas which
purportedly declared the parents subsidiarily liable for the civil
liability for serious physical injuries committed by their 13-year
old son. On the other hand, in Paleyan, the mother and her 19-
31

year old son were adjudged solidarily liable for damages
arising from his conviction for homicide by the application of
Article 2180 of the Civil Code since this is likewise not covered
by Article 101 of the Revised Penal Code. Finally, in Elcano,
although the son was acquitted in a homicide charge due to
"lack of intent, coupled with mistake," it was ruled that while
under Article 2180 of the Civil Code there should be solidary
liability for damages, since the son, "although married, was
living with his father and getting subsistence from him at the
time of the occurrence," but "is now of age, as a matter of
equity" the father was only held subsidiarily liable.
It bears stressing, however, that the Revised Penal Code
provides for subsidiary liability only for persons causing
damages under the compulsion of irresistible force or under the
impulse of an uncontrollable fear; 27 innkeepers,
tavernkeepers and proprietors of establishments; 28
employers, teachers, persons and corporations engaged in
industry; 29 and principals, accomplices and accessories for
the unpaid civil liability of their co-accused in the other classes.
30
Also, coming back to respondent court’s reliance on Fuellas in
its decision in the present case, it is not exactly accurate to say
that Fuellas provided for subsidiary liability of the parents
therein. A careful scrutiny shows that what respondent court
quoted verbatim in its decision now on appeal in the present
case, and which it attributed to Fuellas, was the syllabus on the
law report of said case which spoke of "subsidiary" liability.
However, such categorization does not specifically appear in
the text of the decision in Fuellas. In fact, after reviewing
therein the cases of Exconde, Araneta and Salen and the
discussions in said cases of Article 101 of the Revised Penal
Code in relation to Article 2180 of the Civil Code, this Court
concluded its decision in this wise:jgc:chanrobles.com.ph
"Moreover, the case at bar was decided by the Court of
Appeals on the basis of evidence submitted therein by both
parties, independent of the criminal case. And responsibility for
fault or negligence under Article 2176 upon which the present
action was instituted, is entirely separate and distinct from the
civil liability arising from fault or negligence under the Penal
Code (Art. 2177), and having in mind the reasons behind the
law as heretofore stated, any discussion as to the minor’s
criminal responsibility is of no moment."cralaw virtua1aw library
Under the foregoing considerations, therefore, we hereby rule
that the parents are and should be held primarily liable for the
civil liability arising from criminal offenses committed by their
minor children under their legal authority or control, or who live
in their company, unless it is proven that the former acted with
the diligence of a good father of a family to prevent such
damages. That primary liability is premised on the provisions of
Article 101 of the Revised Penal Code with respect to damages
ex delicto caused by their children 9 years of age or under, or
over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under
15 years of age who acted with discernment, or 15 years or
over but under 21 years of age, such primary liability shall be
imposed pursuant to Article 2180 of the Civil Code. 31
Under said Article 2180, the enforcement of such liability shall
be effected against the father and, in case of his death or
incapacity, the mother. This was amplified by the Child and
TORTS (BATCH 3)
Youth Welfare Code which provides that the same shall
devolve upon the father and, in case of his death or incapacity,
upon the mother or, in case of her death or incapacity, upon
the guardian, but the liability may also be voluntarily assumed
by a relative or family friend of the youthful offender. 32
However, under the Family Code, this civil liability is now,
without such alternative qualification, the responsibility of the
parents and those who exercise parental authority over the
minor offender. 33 For civil liability arising from quasi-delicts
committed by minors, the same rules shall apply in accordance
with Articles 2180 and 2182 of the Civil Code, as so modified.
In the case at bar, whether the death of the hapless Julie Ann
Gotiong was caused by a felony or a quasi-delict committed by
Wendell Libi, respondent court did not err in holding petitioners
liable for damages arising therefrom. Subject to the preceding
modifications of the premises relied upon by it therefor and on
the bases of the legal imperatives herein explained, we conjoin
in its findings that said petitioners failed to duly exercise the
requisite diligentissimi patris familias to prevent such damages.
ACCORDINGLY, the instant Petition is DENIED and the
assailed judgment of respondent Court of Appeals is hereby
AFFIRMED, with costs against petitioners.
SO ORDERED.
G.R. No. 84698 February 4, 1992
PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION,
JUAN D. LIM, BENJAMIN P. PAULINO, ANTONIO M.
MAGTALAS, COL. PEDRO SACRO and LT. M.
SORIANO, petitioners,
vs.
COURT OF APPEALS, HON. REGINA ORDOÑEZ-BENITEZ,
in her capacity as Presiding Judge of Branch 47, Regional
Trial Court, Manila, SEGUNDA R. BAUTISTA and ARSENIA
D. BAUTISTA, respondents.
Balgos and Perez for petitioners.
Collantes, Ramirez & Associates for private respondents.
PADILLA, J.:
A stabbing incident on 30 August 1985 which caused the death
of Carlitos Bautista while on the second-floor premises of the
Philippine School of Business Administration (PSBA) prompted
the parents of the deceased to file suit in the Regional Trial
Court of Manila (Branch 47) presided over by Judge (now
Court of Appeals justice) Regina Ordoñez-Benitez, for
damages against the said PSBA and its corporate officers. At
the time of his death, Carlitos was enrolled in the third year
commerce course at the PSBA. It was established that his
assailants were not members of the school's academic
community but were elements from outside the school.
Specifically, the suit impleaded the PSBA and the following
school authorities: Juan D. Lim (President), Benjamin P.
32

Paulino (Vice-President), Antonio M. Magtalas
(Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a
Lt. M. Soriano (Assistant Chief of Security). Substantially, the
plaintiffs (now private respondents) sought to adjudge them
liable for the victim's untimely demise due to their alleged
negligence, recklessness and lack of security precautions,
means and methods before, during and after the attack on the
victim. During the proceedings a quo, Lt. M. Soriano terminated
his relationship with the other petitioners by resigning from his
position in the school.
Defendants a quo (now petitioners) sought to have the suit
dismissed, alleging that since they are presumably sued under
Article 2180 of the Civil Code, the complaint states no cause of
action against them, as jurisprudence on the subject is to the
effect that academic institutions, such as the PSBA, are
beyond the ambit of the rule in the afore-stated article.
The respondent trial court, however, overruled petitioners'
contention and thru an order dated 8 December 1987, denied
their motion to dismiss. A subsequent motion for
reconsideration was similarly dealt with by an order dated 25
January 1988. Petitioners then assailed the trial court's
disposition before the respondent appellate court which, in a
decision * promulgated on 10 June 1988, affirmed the trial
court's orders. On 22 August 1988, the respondent appellate
court resolved to deny the petitioners' motion for
reconsideration. Hence, this petition.
At the outset, it is to be observed that the respondent appellate
court primarily anchored its decision on the law of quasi-delicts,
as enunciated in Articles 2176 and 2180 of the Civil
Code. 1 Pertinent portions of the appellate court's now assailed
ruling state:
Article 2180 (formerly Article 1903) of the
Civil Code is an adoption from the old
Spanish Civil Code. The comments of
Manresa and learned authorities on its
meaning should give way to present day
changes. The law is not fixed and flexible
(sic); it must be dynamic. In fact, the greatest
value and significance of law as a rule of
conduct in (sic) its flexibility to adopt to
changing social conditions and its capacity to
meet the new challenges of progress.
Construed in the light of modern day
educational system, Article 2180 cannot be
construed in its narrow concept as held in
the old case of Exconde
vs. Capuno 2 and Mercado vs. Court of
Appeals; 3hence, the ruling in
the Palisoc 4 case that it should apply to all
kinds of educational institutions, academic or
vocational.
At any rate, the law holds the teachers and
heads of the school staff liable unless they
relieve themselves of such liability pursuant
to the last paragraph of Article 2180 by
"proving that they observed all the diligence
TORTS (BATCH 3)
to prevent damage." This can only be done
at a trial on the merits of the case. 5
While we agree with the respondent appellate court that the
motion to dismiss the complaint was correctly denied and the
complaint should be tried on the merits, we do not however
agree with the premises of the appellate court's ruling.
Article 2180, in conjunction with Article 2176 of the Civil Code,
establishes the rule of in loco parentis. This Court discussed
this doctrine in the afore-cited cases of Exconde, Mendoza,
Palisoc and, more recently, in Amadora vs.Court of
Appeals. 6 In all such cases, it had been stressed that the law
(Article 2180) plainly provides that the damage should have
been caused or inflicted by pupils or students of he educational
institution sought to be held liable for the acts of its pupils or
students while in its custody. However, this material situation
does not exist in the present case for, as earlier indicated, the
assailants of Carlitos were not students of the PSBA, for whose
acts the school could be made liable.
However, does the appellate court's failure to consider such
material facts mean the exculpation of the petitioners from
liability? It does not necessarily follow.
When an academic institution accepts students for enrollment,
there is established a contract between them, resulting in
bilateral obligations which both parties are bound to comply
with. 7 For its part, the school undertakes to provide the student
with an education that would presumably suffice to equip him
with the necessary tools and skills to pursue higher education
or a profession. On the other hand, the student covenants to
abide by the school's academic requirements and observe its
rules and regulations.
Institutions of learning must also meet the implicit or "built-in"
obligation of providing their students with an atmosphere that
promotes or assists in attaining its primary undertaking of
imparting knowledge. Certainly, no student can absorb the
intricacies of physics or higher mathematics or explore the
realm of the arts and other sciences when bullets are flying or
grenades exploding in the air or where there looms around the
school premises a constant threat to life and limb. Necessarily,
the school must ensure that adequate steps are taken to
maintain peace and order within the campus premises and to
prevent the breakdown thereof.
Because the circumstances of the present case evince a
contractual relation between the PSBA and Carlitos Bautista,
the rules on quasi-delict do not really govern. 8 A perusal of
Article 2176 shows that obligations arising from quasi-delicts or
tort, also known as extra-contractual obligations, arise only
between parties not otherwise bound by contract, whether
express or implied. However, this impression has not
prevented this Court from determining the existence of a tort
even when there obtains a contract. In Air France
vs. Carrascoso (124 Phil. 722), the private respondent was
awarded damages for his unwarranted expulsion from a first-
class seat aboard the petitioner airline. It is noted, however,
that the Court referred to the petitioner-airline's liability as one
arising from tort, not one arising from a contract of carriage. In
effect, Air France is authority for the view that liability from tort
33
 TORTS (BATCH 3)

may exist even if there is a contract, for the act that breaks the
contract may be also a tort. (Austro-America S.S. Co. vs.
Thomas, 248 Fed. 231).
This view was not all that revolutionary, for even as early as
1918, this Court was already of a similar mind. In Cangco
vs. Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated
thus:
The field of non-contractual obligation is
much broader than that of contractual
obligation, comprising, as it does, the whole
extent of juridical human relations. These
two fields, figuratively speaking, concentric;
that is to say, the mere fact that a person is
bound to another by contract does not
relieve him from extra-contractual liability to
such person. When such a contractual
relation exists the obligor may break the
contract under such conditions that the same
act which constitutes a breach of the contract
would have constituted the source of an
extra-contractual obligation had no contract
existed between the parties.
This Court is not unmindful of the attendant difficulties posed
by the obligation of schools, above-mentioned, for conceptually
a school, like a common carrier, cannot be an insurer of its
students against all risks. This is specially true in the populous
student communities of the so-called "university belt" in Manila
where there have been reported several incidents ranging from
gang wars to other forms of hooliganism. It would not be
equitable to expect of schools to anticipate all types of violent
trespass upon their premises, for notwithstanding the security
measures installed, the same may still fail against an individual
or group determined to carry out a nefarious deed inside
school premises and environs. Should this be the case, the
school may still avoid liability by proving that the breach of its
contractual obligation to the students was not due to its
negligence, here statutorily defined to be the omission of that
degree of diligence which is required by the nature of the
obligation and corresponding to the circumstances of persons,
time and place. 9
As the proceedings a quo have yet to commence on the
substance of the private respondents' complaint, the record is
bereft of all the material facts. Obviously, at this stage, only the
trial court can make such a determination from the evidence
still to unfold.

Immediately what comes to mind is the chapter of the Civil WHEREFORE, the foregoing premises considered, the petition
Code on Human Relations, particularly Article 21, which is DENIED. The court of origin (RTC, Manila, Br. 47) is hereby
provides: ordered to continue proceedings consistent with this ruling of
the Court. Costs against the petitioners.
Any person who wilfully causes loss or injury
to another in a manner that is contrary to SO ORDERED.
morals, good custom or public policy shall
compensate the latter for the damage.
(emphasis supplied).

Air France penalized the racist policy of the airline which

emboldened the petitioner's employee to forcibly oust the
private respondent to cater to the comfort of a white man who
allegedly "had a better right to the seat." In Austro-
American, supra, the public embarrassment caused to the
passenger was the justification for the Circuit Court of Appeals,
(Second Circuit), to award damages to the latter. From the
foregoing, it can be concluded that should the act which
breaches a contract be done in bad faith and be violative of
Article 21, then there is a cause to view the act as constituting
a quasi-delict.

In the circumstances obtaining in the case at bar, however,

there is, as yet, no finding that the contract between the school
and Bautista had been breached thru the former's negligence
in providing proper security measures. This would be for the
trial court to determine. And, even if there be a finding of
negligence, the same could give rise generally to a breach of
contractual obligation only. Using the test of Cangco, supra,
the negligence of the school would not be relevant absent a
contract. In fact, that negligence becomes material only
because of the contractual relation between PSBA and
Bautista. In other words, a contractual relation is a
condition sine qua non to the school's liability. The negligence
of the school cannot exist independently of the contract, unless
the negligence occurs under the circumstances set out in
Article 21 of the Civil Code.
34