FIRST DIVISION

[G.R. No. L-42926. September 13, 1985.]

PEDRO VASQUEZ, SOLEDAD ORTEGA, CLETO B. BAGAIPO, AGUSTINA

VIRTUDES, ROMEO VASQUEZ and MAXIMINA CAINAY , petitioners, vs. THE
COURT OF APPEALS and FILIPINAS PIONEER LINES, INC. , respondents.

Emilio D. Castellanes for petitioners.

Apolinario A. Abantao for private respondents.

DECISION

MELENCIO-HERRERA , J : p

This litigation involves a claim for damages for the loss at sea of petitioners' respective
children after the shipwreck of MV Pioneer Cebu due to typhoon "Klaring" in May of 1966. LLjur

The factual antecedents, as summarized by the trial Court and adopted by respondent
Court, and which we find supported by the record, read as follows:
"When the interisland vessel MV 'Pioneer Cebu' left the Port of Manila in the early
morning of May 15, 1966 bound for Cebu, it had on board the spouses Alfonso
Vasquez and Filipinas Bagaipo and a four-year old boy, Mario Marlon Vasquez,
among her passengers. The MV 'Pioneer Cebu' encountered typhoon 'Klaring' and
struck a reef on the southern part of Malapascua Island, located somewhere north
of the island of Cebu and subsequently sunk. The aforementioned passengers
were unheard from since then.

Plaintiffs Pedro Vasquez and Soledad Ortega are the parents of Alfonso Vasquez;
plaintiffs Cleto Bagaipo and Agustina Virtudes are the parents of Filipinas Bagaipo; and
plaintiffs Romeo Vasquez and Maximina Cainay are the parents of the child, Mario Marlon
Vasquez. They seek the recovery of damages due to the loss of Alfonso Vasquez, Filipinas
Bagaipo and Mario Marlon Vasquez during said voyage.
At the pre-trial, the defendant admitted its contract of carriage with Alfonso Vasquez,
Filipinas Bagaipo and Mario Marlon Vasquez, and the fact of the sinking of the MV 'Pioneer
Cebu'. The issues of the case were limited to the defenses alleged by the defendant that
the sinking of the vessel was caused by force majeure, and that the defendant's liability
had been extinguished by the total loss of the vessel.
The evidence on record as to the circumstances of the last voyage of the MV 'Pioneer
Cebu' came mainly, if not exclusively, from the defendant. The MV 'Pioneer Cebu' was
owned and operated by the defendant and used in the transportation of goods and
passengers in the interisland shipping. Scheduled to leave the Port of Manila at 9:00 p.m.
on May 14, 1966, it actually left port at 5:00 a.m. the following day, May 15, 1966. It had a
passenger capacity of three hundred twenty-two (322) including the crew. It undertook the
said voyage on a special permit issued by the Collector of Customs inasmuch as, upon
inspection, it was found to be without an emergency electrical power system. The special
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 permit authorized the vessel to carry only two hundred sixty (260) passengers due to the
said deficiency and for lack of safety devices for 322 passengers (Exh 2). A headcount
was made of the passengers on board, resulting on the tallying of 168 adults and 20
minors, although the passengers manifest only listed 106 passengers. It has been
admitted, however, that the headcount is not reliable inasmuch as it was only done by one
man on board the vessel.
When the vessel left Manila, its officers were already aware of the typhoon Klaring building
up somewhere in Mindanao. There being no typhoon signals on the route from Manila to
Cebu, and the vessel having been cleared by the Customs authorities, the MV 'Pioneer
Cebu' left on its voyage to Cebu despite the typhoon. When it reached Romblon Island, it
was decided not to seek shelter thereat, inasmuch as the weather condition was Still good.
After passing Romblon and while near Jintotolo island, the barometer still indicated the
existence of good weather condition continued until the vessel approached Tanguingui
island. Upon passing the latter island, however, the weather suddenly changed and heavy
rains fell. Fearing that due to zero visibility, the vessel might hit Chocolate island group, the
captain ordered a reversal of the course so that the vessel could 'weather out' the typhoon
by facing the winds and the waves in the open. Unfortunately, at about noontime on May
16, 1966, the vessel struck a reef near Malapascua island, sustained leaks and eventually
sunk, bringing with her Captain Floro Yap who was in command of the vessel."
Due to the loss of their children, petitioners sued for damages before the Court of First
Instance of Manila (Civil Case No. 67139). Respondent defended on the plea of force
majeure, and the extinction of its liability by the actual total loss of the vessel.
After proper proceedings, the trial Court awarded damages, thus:
"WHEREFORE, judgment is hereby rendered ordering the defendant to pay:

(a) Plaintiffs Pedro Vasquez and Soledad Ortega the sums of P15,000.00 for the loss
of earning capacity of the deceased Alfonso Vasquez, P2,100.00 for support, and
P10,000.00 for moral damages;
(b) Plaintiffs Cleto B. Bagaipo and Agustina Virtudes the sum of P17,000.00 for loss of
earning capacity of deceased Filipinas Bagaipo, and P10,000.00 for moral damages; and
(c) Plaintiffs Romeo Vasquez and Maximina Cainay the sum of P10,000.00 by way of
moral damages by reason of the death of Mario Marlon Vasquez.
On appeal, respondent Court reversed the aforementioned judgment and absolved private
respondent from any and all liability.
Hence, this Petition for Review on Certiorari, the basic issue being the liability for damages
of private respondent for the presumptive death of petitioners' children.
The trial Court found the defense of caso fortuito untenable due to various decisive
factors, thus:
". . . It is an admitted fact that even before the vessel left on its last voyage, its
officers and crew were already aware of the typhoon brewing somewhere in the
same general direction to which the vessel was going. The crew of the vessel took
a calculated risk when it proceeded despite the typhoon advisory. This is quite
evident from the fact that the officers of the vessel had to conduct conferences
amongst themselves to decide whether or not to proceed. The crew assumed a
greater risk when, instead of seeking shelter in Romblon and other islands the
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 vessel passed enroute, they decided to take a change on the expected
continuation of the good weather the vessel was encountering, and the possibility
that the typhoon would veer to some other directions. The eagerness of the crew
of the vessel to proceed on its voyage and to arrive at its destination is readily
understandable. It is undeniably lamentable, however, that they did so at the risk
of the lives of the passengers on board."

Contrariwise, respondent Appellate Court believed that the calamity was caused solely and
proximately by fortuitous event which not even extraordinary diligence of the highest
degree could have guarded against; and that there was no negligence on the part of the
common carrier in the discharge of its duties.
Upon the evidence and the applicable law, we sustain the trial Court. "To constitute a caso
fortuito that would exempt a person from responsibility, it is necessary that (1) the event
must be independent of the human will; (2) the occurrence must render it impossible for
the debtor to fulfill the obligation in a normal manner; and that (3) the obligor must be free
of participation in, or aggravation of, the injury to the creditor." 1 In the language of the law,
the event must have been impossible to foresee, or if it could be foreseen, must have been
impossible to avoid. 2 There must be an entire exclusion of human agency from the cause
of injury or loss. 3
Turning to this case, before they sailed from the port of Manila, the officers and crew were
aware of typhoon "Klaring" that was reported building up at 260 kms. east of Surigao. In
fact, they had lashed all the cargo in the hold before sailing in anticipation of strong winds
and rough waters. 4 They proceeded on their way, as did other vessels that day. Upon
reaching Romblon, they received the weather report that the typhoon was 154 kms. east
southeast of Tacloban and was moving west northwest. 5 Since they were still not within
the radius of the typhoon and the weather was clear, they deliberated and decided to
proceed with the course. At Jintotolo Island, the typhoon was already reported to be
reaching the mainland of Samar. 6 They still decided to proceed noting that the weather
was still "good" although, according to the Chief Forecaster of the Weather Bureau, they
were already within the typhoon zone. 7 At Tanguingui Island, about 2:00 A.M. of May 16,
1966, the typhoon was in an area quite close to Catbalogan, placing Tanguingui also within
the typhoon zone. Despite knowledge of that fact, they again decided to proceed relying on
the forecast that the typhoon would weaken upon crossing the mainland of Samar. 8 After
about half an hour of navigation towards Chocolate Island, there was a sudden fall of the
barometer accompanied by heavy downpour, big waves, and zero visibility. The Captain of
the vessel decided to reverse course and face the waves in the open sea but because the
visibility did not improve they were in total darkness and, as a consequence, the vessel ran
aground a reef and sank on May 16, 1966 around 12:45 P.M. near Malapascua Island
somewhere north of the island of Cebu. Cdpr

Under the circumstances, while, indeed, the typhoon was an inevitable occurrence, yet,
having been kept posted on the course of the typhoon by weather bulletins at intervals of
six hours, the captain and crew were well aware of the risk they were taking as they
hopped from island to island from Romblon up to Tanguingui. They held frequent
conferences, and oblivious of the utmost diligence required of very cautious persons, 9
they decided to take a calculated risk. In so doing, they failed to observe that extraordinary
diligence required of them explicitly by law for the safety of the passengers transported by
them with due regard for all circumstances 1 0 and unnecessarily exposed the vessel and
passengers to the tragic mishap. They failed to overcome that presumption of fault or
negligence that arises in cases of death or injuries to passengers. 1 1
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 While the Board of Marine Inquiry, which investigated the disaster, exonerated the captain
from any negligence, it was because it had considered the question of negligence as "moot
and academic," the captain having "lived up to the true tradition of the profession." While
we are bound by the Board's factual findings, we disagree with its conclusion since it
obviously had not taken into account the legal responsibility of a common carrier towards
the safety of the passengers involved.
With respect to private respondent's submission that the total loss of the vessel
extinguished its liability pursuant to Article 587 of the Code of Commerce 1 2 as construed
in Yangco vs. Laserna, 73 Phil. 330 [1941], suffice it to state that even in the cited case, it
was held that the liability of a shipowner is limited to the value of the vessel or to the
insurance thereon. Despite the total loss of the vessel therefore, its insurance answers for
the damages that a shipowner or agent may be held liable for by reason of the death of its
passengers. LLpr

WHEREFORE, the appealed judgment is hereby REVERSED and the judgment of the then
Court of First Instance of Manila, Branch V, in Civil Case No. 67139, is hereby reinstated.
No costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.
Footnotes

1. Lasam vs. Smith, 45 Phil. 657, 661 [1924]; Austria vs. Court of Appeals, 39 SCRA 527
[1971].

2. Art. 1174, Civil Code; Lasam vs. Smith 45 Phil. 657 [1924].
3. Tolentino, Commentaries on the Civil Code, Vol. V, p. 252.

4. T.s.n., August 8, 1967, p. 22.

5. Domestic Bulletin No. 16 of the Weather Bureau.
6. Domestic Bulletin No. 17.

7. T.s.n., December 15, 1967, p. 21.

8. Domestic Bulletin No. 18.

9. Arts. 1755, 1756, Civil Code.

10 . Art. 1733, ibid.
11 . 1756, ibid.
12 . "Art. 567. The ship agent shall also be civilly liable for the indemnities in favor of third
persons which may arise from the conduct of the captain the vigilance over the goods
which the vessel carried, but he may exempt himself therefrom by abandoning the vessel
with all her equipments and the freight he may have earned during the voyage."

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