[G.R. No. 8095. November 5, 1914 & March 31, 1915.

F. C. FISHER, Plaintiff, v. YANGCO STEAMSHIP COMPANY, J. S. STANLEY, as Acting

Collector of Custom of the Philippine Islands, IGNACIO VILLAMOR, as Attorney-General of
the Philippine Islands, and W. H. BISHOP, as prosecuting attorney of the city of
Manila, Respondents.

Haussermann, Cohn & Fisher, for Plaintiff.

Solicitor-General Harvey, for Respondents.

SYLLABUS

1. COMMON CARRIERS; PREFERENCES AND DISCRIMINATIONS. — Whatever may have

been the rule at common law, common carriers in this jurisdiction cannot lawfully decline to accept a
particular class of goods for carriage to the prejudice of the traffic in those goods unless it appears
that for some sufficient reason the discrimination against the traffic in such goods is reasonable and
necessary. Mere prejudice or whim will not suffice. The grounds of the discrimination must be
substantial ones, such as will justify the courts in holding the discrimination to have been reasonable
and necessary under all the circumstances of the case.

2. ID.; ID.; PENAL PROVISIONS OF ACT NO. 98. — The penalties prescribed for violations of
Act No. 98 of the Philippine Commission are neither excessive nor cruel and unusual in the sense in
which those words are used in the organic legislation in force in the Islands.

3. ID.; ID.; ID. — There is nothing in that statute which would deprive any person of his liberty "by
requiring him to engage in business against his will." The prohibition of the statute against undue,
unnecessary, or unreasonable preferences and discriminations are merely the reasonable regulations
which the legislator has seen fit to prescribe for the conduct of the business in which the carrier is
engaged of his own free will and accord.

4. ID.; CONTROL AND REGULATION OF CARRIERS. — The nature of the business of a

common carrier as a public employment is such that it is clearly within the power of the state to
impose such just and reasonable regulations thereon in the interest of the public as the legislator may
deem proper. Of course such regulations must not have the effect of depriving an owner of his
property without due course of law, nor of confiscating or appropriating private property without just
compensation, nor of limiting or prescribing irrevocably vested rights or privileges lawfully acquired
under a charter or franchise. But aside from such constitutional limitations, the determination of the
nature and extent of the regulations which should be prescribed rests in the hands of the legislator.

5. ID.; ID. — The right to enter the public employment as a common carrier and to offer one’s
services to the public for hire does not carry with it the right to conduct that business as one pleases,
without regard to the interests of the public, and free from such reasonable and just regulations as
may be prescribed for the protection of the public from the reckless or careless indifference of the
carrier as to the public welfare and for the prevention of unjust and unreasonable discriminations of
any kind whatsoever in the performance of the carrier’s duties as a servant of the public.

6. ID.; ID.; JUDICIAL, INTERFERENCE. — The judiciary ought not to interfere with such
regulations established under legislative sanction unless they are so plainly and palpably
unreasonable as to make their enforcement equivalent to the taking of property for public use without
such compensation as under all the circumstances is just both to the owner and to the public; that is,
judicial interference should never occur unless the case presents, clearly and beyond all doubt, such a
flagrant attack upon the rights of property under the guise of regulations as -to compel the court to
say that the regulations in question will have the effect to deny just compensation for private property
taken for the public use.

7. ID.; ID. — When one devotes his property to a use in which the public has an interest, he, in
effect, grants to the public an interest in that use and must submit to be controlled by the public for
the common good to the extent of the interest he has thus created. He may withdraw his grant by
discontinuing the use, but so long as he maintains the use he must submit to control.

8. ID.; ID.; EXERCISE OF POWER THROUGH BOARDS OF COMMISSIONERS. — So far

beyond question is this right of regulation that it is well settled that the power of the state to exercise
legislative control over railroad companies and other common carriers "in all respects necessary to
protect the public against danger, injustice and oppression" may be exercised through boards of
commissioners.

9. ID.; ID.; ACT No. 98; STATUTORY PROVISIONS. — Correctly construed, the provisions of the
Philippine statute (Act No. 98) do not force a common carrier to engage in any business against his
will or to make use of his facilities in a manner or for a purpose for which they are not reasonably
adapted. It is only when he offers his facilities as a common carrier to the public for hire, that the
statute steps in and prescribes that he must treat all alike, that he may not pick and choose which
customer he will serve, and, specifically, that he shall not make any undue or unreasonable
preferences or discriminations whatsoever to the prejudice not only of any person or locality, but also
of any particular kind of traffic.

10. ID.; PREFERENCES AND DISCRIMINATIONS; EXPLOSIVES. — It cannot be doubted that

the refusal of a "steamship company, the owner of a large number of vessels" engaged in the
coastwise trade of the Philippine Islands as a common carrier of merchandise, to accept explosives
for carriage on any of its vessels subjects the traffic in such explosives to a manifest prejudice and
discrimination, and in each case it is a question of fact whether such prejudice or discrimination is
undue, unnecessary or unreasonable.

11. ID.; ID.; ID.; CONSIDERATION OF ATTENDANT CIRCUMSTANCES. — The making of a

finding as to whether a refusal, by a steamship company engaged in the coastwise trade in the
Philippine Islands as a common carrier, to carry such products subjects any person, locality, or the
traffic in such products to an unnecessary, undue or unreasonable prejudice or discrimination,
involves a consideration of the suitability of the vessels of the company for the transportation of such
products; the reasonable possibility of danger or disaster resulting from their transportation in the
form and under the conditions in which they are offered for carriage; the general nature of the
business done by the carrier, and, in a word, all the attendant circumstances which might affect the
question of the reasonable necessity for the refusal by the carrier to undertake the transportation of
this class of merchandise.

12. ID.; ID.; ID.; ID. — The mere fact that violent and destructive explosions can be obtained by the
use of dynamite under certain conditions is not sufficient in itself to justify the refusal of a vessel,
duly licensed as a common carrier of merchandise, to accept it for carriage, if it can be proven that in
the condition in which it is offered for carriage there is no real danger to the carrier nor reasonable
 ground to fear that his vessel or those on board his vessel will be exposed to unnecessary or
unreasonable risks in transporting it, having in mind the nature of his business as a common carrier
engaged in the coastwise trade in the Philippine Islands, and his duty as a servant of the public
engaged in a public employment.

13. ID.; ID.; ID.; ID. — If by the exercise of due diligence, taking all reasonable precautions, the
danger of explosions can be eliminated, the carrier would not be justified in subjecting the traffic in
this commodity to prejudice or discrimination by proof that there would be a possibility of danger
from explosion when no such precautions are taken.

14. ID.; ID.; ID.; ID. — The traffic in dynamite, gunpowder and other explosives is vitally essential
to the material and general welfare of the inhabitants of these Islands, and if these products are to
continue in general use throughout the Philippines they must be transported by water from port to
port in the various islands which make up the Archipelago. It follows that the refusal by a particular
vessel engaged as a common carrier of merchandise in the coastwise trade in the Philippine Islands to
accept such explosives for carriage constitutes a violation of the prohibitions against discrimination
penalized under the statute, unless it can be shown that there is so real and substantial a danger of
disaster necessarily involved in the carriage of any or all of these articles of merchandise as to render
such refusal a due or a necessary or a reasonable exercise of prudence and discretion on the part of
the shipowner.

DECISION

CARSON, J. :

The real question involved in these proceedings is whether the refusal of the owners and officers of a
steam vessel, duly licensed to engage in the coastwise trade of the Philippine Islands and engaged in
that trade as a common carrier, to accept for carriage "dynamite, powder or other explosives" from
any and all shippers who may offer such explosives for carriage can be held to be a lawful act
without regard to any question as to the conditions under which such explosives are offered for
carriage, or as to the suitableness of the vessel for the transportation of such explosives, or as to the
possibility that the refusal to accept such articles of commerce in a particular case may have the
effect of subjecting any person or locality or the traffic in such explosives to an undue, unreasonable
or unnecessary prejudice or discrimination.

Summarized briefly, the complaint alleges that plaintiff is a stockholder in the Yangco Steamship
Company, the owner of a large number of steam vessels, duly licensed to engage in the coastwise
trade of the Philippine Islands; that on or about June 10, 1912, the directors of the company adopted
a’ resolution which was thereafter ratified and affirmed by the shareholders of the company,
"expressly declaring and providing that the classes of merchandise to be carried by the company in
its business as a common carrier do not include dynamite, powder or other explosives, and expressly
prohibiting the officers, agents and servants of the company from offering to carry, accepting for
carriage or carrying said dynamite, powder or other explosives;" that thereafter the respondent Acting
Collector of Customs demanded and required of the company the acceptance and carriage of such
explosives; that he has refused and suspended the issuance of the necessary clearance documents of
the vessels of the company unless and until the company consents to accept such explosives for
carriage; that plaintiff is advised and believes that should the company decline to accept such
explosives for carriage, the respondent Attorney-General of the Philippine Islands and the respondent
prosecuting attorney of the city of Manila intend to institute proceedings under the penal provisions
of sections 4, 5, and 6 of Act No. 98 of the Philippine Commission against the company, its
managers, agents and servants, to enforce the requirements of the Acting-Collector of Customs as to
the acceptance of such explosives for carriage; that notwithstanding the demands of the plaintiff
stockholder, the manager, agents and servants of the company decline and refuse to cease the
carriage of such explosives, on the ground that by reason of the severity of the penalties with which
they are threatened upon failure to carry such explosives, they cannot subject themselves to "the
ruinous consequences which would inevitably result" from failure on their part to obey the demands
and requirements of the Acting Collector of Customs as to the acceptance for carriage of explosives;
that plaintiff believes that the Acting Collector of Customs erroneously construes the provisions of
Act No. 98 in holding that they require the company to accept such explosives for carriage
notwithstanding the above mentioned resolution of the directors and stockholders of the company,
and that if the Act does in fact require the company to carry such explosives it is to that extent
unconstitutional and void; that notwithstanding this belief of complainant as to the true meaning of
the Act, the questions involved cannot be raised by the refusal of the company or its agents to comply
with the demands of the Acting Collector of Customs, without the risk of irreparable loss and damage
resulting from his refusal to facilitate the documentation of the company’s vessels, and without
assuming a risk of pains and penalties under the drastic provisions of the Act which prohibit any
attempt on the part of the company to test the questions involved by refusing to accept such
explosives for carriage.

The prayer of the complaint is as follows:jgc:chanrobles.com.ph

"Wherefore your petitioner prays to this honorable court as follows:jgc:chanrobles.com.ph

"First. That to the due hearing of the above entitled action be issued a writ of prohibition perpetually
restraining the respondent Yangco Steamship Company, its appraisers, agents, servants or other
representatives from accepting to carry and from carrying, in steamers of said company dynamite,
powder or other explosive substance, in accordance with the resolution of the board of directors and
of the shareholders of said company.

"Second. That a writ of prohibition be issued perpetually enjoining the respondent J. S. Stanley as
Acting Collector of Customs of the Philippine Islands, his successors, deputies, servants or other
representatives, from obligating the said Yangco Steamship Company, by any means whatever, to
carry dynamite, powder or other explosive substance.

"Third. That a writ of prohibition be issued perpetually enjoining the respondent Ignacio Villamor as
Attorney-General of the Philippine Islands, and W. H. Bishop as prosecuting attorney of the city of
Manila, their deputies, representatives or employees, from accusing the said Yangco Steamship
Company, its officers, agents or servants, of the violation of Act No. 98 by reason of the failure or
omission of the said company to accept for carriage or to carry dynamite, powder or other explosive.

"Fourth. That the petitioner be granted such other remedy as may be meet and proper."cralaw
virtua1aw library

To this complaint the respondents demurred, and we are of opinion that the demurrer must be
sustained, on the ground that the complaint does not set forth facts sufficient to constitute a cause of
action.

It will readily be seen that plaintiff seeks in these proceedings to enjoin the steamship company from
accepting for carriage on any of its vessels, dynamite, powder or other explosives, under any
conditions whatsoever; to prohibit the Collector of Customs and the prosecuting officers of the
government from all attempts to compel the company to accept such explosives for carriage on any
of its vessels under any conditions whatsoever; and to prohibit these officials from any attempt to
invoke the penal provisions of Act No. 98, in any case of a refusal by the company or its officers so
to do; and this without regard to the conditions as to safety and so forth under which such explosives
are offered for carriage, and without regard also to any question as to the suitableness for the
transportation of such explosives of the particular vessel upon which the shipper offers them for
carriage; and further without regard to any question as to whether such conduct on the part of the
steamship company and its officers involves in any instance an undue, unnecessary or unreasonable
discrimination to the prejudice of any person, locality or particular kind of traffic.

There are no allegations in the complaint that for some special and sufficient reasons all or indeed
any of the company’s vessels are unsuitable for the business of transporting explosives; or that
shippers have declined or will in future decline to comply with such reasonable regulations and to
take such reasonable precautions as may be necessary and proper to secure the safety of the vessels
of the company in transporting such explosives. Indeed the contention of petitioner is that a common
carrier in the Philippine Islands may decline to accept for carriage any shipment of merchandise of a
class which it expressly or impliedly declines to accept from all shippers alike, because, as he
contends "the duty of a common carrier to carry for all who offer arises from the public profession he
has made, and is limited by it."cralaw virtua1aw library

In support of this contention counsel cites a number of English and American authorities, discussing
and applying the doctrine of the common law with reference to common carriers. But it is
unnecessary now to decide whether, in the absence of statute, the principles on which the American
and English cases were decided would be applicable in this jurisdiction. The duties and liabilities of
common carriers in this jurisdiction are defined and fully set forth in Act No. 98 of the Philippine
Commission, and, until and unless that statute be declared invalid or unconstitutional, we are bound
by its provisions.

Sections 2, 3 and 4 of the Act are as follows:jgc:chanrobles.com.ph

"SEC. 2. It shall be unlawful for any common carrier engaged in the transportation of passengers or
property as above set forth to make or give any unnecessary or unreasonable preference or advantage
to any particular person, company, firm, corporation or locality, or any particular kind of traffic in
any respect whatsoever, or to subject any particular person, company, firm, corporation or locality, or
any particular kind of traffic, to any undue or unreasonable prejudice or discrimination whatsoever,
and such unjust preference or discrimination is also hereby prohibited and declared to be unlawful.

"SEC. 3. No common carrier engaged in the carriage of passengers or property as aforesaid shall,
under any pretense whatsoever, fail or refuse to receive for carriage, and as promptly as it is able to
do so without discrimination, to carry any person or property offering for carriage, and in the order in
which such persons or property are offered for carriage, nor shall any such common carrier enter into
any arrangement, contract or agreement with any other person or corporation whereby the latter is
given an exclusive or preferential privilege over any other person or persons to control or monopolize
the carriage of any class or kind of property to the exclusion or partial exclusion of any other person
or persons, and the entering into any such arrangement, contract or agreement, under any form or
pretense whatsoever, is hereby prohibited and declared to be unlawful.

"SEC. 4. Any willful violation of the provisions of this Act by any common carrier engaged in the
transportation of passengers or property as hereinbefore set forth is hereby declared to be punishable
by a fine not exceeding five thousand dollars money of the United States, or by imprisonment not
exceeding two years, or both, within the discretion of the court."cralaw virtua1aw library

The validity of this Act has been questioned on various grounds, and it is vigorously contended that
in so far as it imposes any obligation on a common carrier to accept for carriage merchandise of a
class which he makes no public profession to carry, or which he has expressly or impliedly
announced his intention to decline to accept for carriage from all shippers alike, it is ultra vires,
unconstitutional and void.

We may dismiss without extended discussion any argument or contention as to the invalidity of the
statute based on alleged absurdities inherent in its provisions or on alleged unreasonable or
impossible requirements which may be read into it by a strained construction of its terms.

We agree with counsel for petitioner that the provision of the Act which prescribes that, "No
common carrier . . . shall, under any pretense whatsoever, fail or refuse to receive for carriage, and . .
. to carry any person or property offering for carriage," is not to be construed in its literal sense and
without regard to the context, so as to impose an imperative duty on all common carriers to accept for
carriage, and to carry all and any kind of freight which may be offered for carriage without regard to
the facilities which they may have at their disposal. The legislator could not have intended and did
not intend to prescribe that a common carrier running passenger automobiles for hire must transport
coal in his machines; nor that the owner of a tank steamer, expressly constructed in small watertight
compartments for the carriage of crude oil must accept a load of cattle or of logs in the rough; nor
that any common carrier must accept and carry contraband articles, such as opium, morphine,
cocaine, or the like, the mere possession of which is declared to be a criminal offense; nor that
common carriers must accept eggs offered for transportation in paper parcels or any merchandise
whatever so defectively packed as to entail upon the company unreasonable and unnecessary care or
risks.

Read in connection with its context this, as well as all the other mandatory and prohibitory provisions
of the statute, was clearly intended merely to forbid failures or refusals to receive persons or property
for carriage involving any "unnecessary or unreasonable preference or advantage to any particular
person, company, firm, corporation or locality, or any particular kind of traffic in any respect
whatsoever," or which would "subject any particular person, company, firm, corporation or locality,
or any particular kind of traffic to any undue or unreasonable prejudice or discrimination
whatsoever."cralaw virtua1aw library

The question, then, of construing and applying the statute, in cases of alleged violations of its
provisions, always involves a consideration as to whether the acts complained of had the effect of
making or giving an "unreasonable or unnecessary preference or advantage" to any person, locality
or particular kind of traffic, or of subjecting any person, locality, or particular kind of traffic to any
undue or unreasonable prejudice or discrimination. It is very clear therefore that the language of the
statute itself refutes any contention as to its invalidity based on the alleged unreasonableness of its
mandatory or prohibitor provisions.
So also we may dismiss without much discussion the contentions as to the invalidity of the statute,
which are based on the alleged excessive severity of the penalties prescribed for violation of its
provisions. Upon general principles it is peculiarly and exclusively within the province of the
legislator to prescribe the pains and penalties which may be imposed upon persons convicted of
violations of the laws in force within his territorial jurisdiction. With the exercise of his discretion in
this regard the courts have nothing to do, save only in cases where it is alleged that excessive fines or
cruel and unusual punishments have been prescribed, and even in such cases the courts will not
presume to interfere in the absence of the clearest and most convincing argument and proof in
support of such contentions. (Weems v. United States, 217 U. S., 349; U. S. v. Pico, 18 Phil. Rep.,
386.) We need hardly add that there is no ground upon which to rest a contention that the penalties
prescribed in the statute under consideration are either excessive or cruel and unusual, in the sense in
which these terms are used in the organic legislation in force in the Philippine Islands.

But it is contended that on account of the penalties prescribed the statute should be held invalid upon
the principles announced in Ex parte Young (209 U. S., 123, 147, 148); Cotting v. Godard (183 U. S.,
79, 102); Mercantile Trust Co. v. Texas Co. (51 Fed., 529); Louisville Ry. v. McCord (103 Fed.,
216); Cons. Gas Co. v. Mayer (416 Fed., 150). We are satisfied however that the reasoning of those
cases is not applicable to the statute under consideration. The principles announced in those decisions
are fairly indicated in the following citations found in petitioner’s brief:jgc:chanrobles.com.ph

"But when the legislature, in an effort to prevent any inquiry of the validity of a particular statute, so
burdens any challenge thereof in the courts that the party affected is necessarily constrained to submit
rather than take the chances of the penalties imposed, then it becomes a serious question whether the
party is not deprived of the equal protection of the laws. (Cotting v. Godard, 183 U. S., 79, 102.)

"It may therefore be said that when the penalties for disobedience are by fines so enormous and
imprisonment so severe as to intimidate the company and its officers from resorting to the courts to
test the validity of the legislation, the result is the same as if the law in terms prohibited the company
from seeking judicial construction of laws which deeply affect its rights.

"It is urged that there is no principle upon which to base the claim that a person is entitled to disobey
a statute at least once, for the purpose of testing its validity, without subjecting himself to the
penalties for disobedience provided by the statute in case it is valid. This is not an accurate statement
of the case. Ordinarily a law creating offenses in the nature of misdemeanors or felonies relates to a
subject over which the jurisdiction of the legislature is complete in any event. In the case, however,
of the establishment of certain rates without any hearing, the validity of such rates necessarily
depends upon whether they are high enough to permit at least some return upon the investment (how
much it is not now necessary to state), and an inquiry as to that fact is a proper subject of judicial
investigation. If it turns out that the rates are too low for that purpose, then they are illegal. Now, to
impose upon a party interested the burden of obtaining a judicial decision of such a question (no prior
hearing having ever been given) only upon the condition that, if unsuccessful, he must suffer
imprisonment and pay fines, as provided in these acts, is, in effect, to close up all approaches to the
courts, and thus prevent any hearing upon the question whether the rates as provided by the acts are
not too low, and therefore invalid. The distinction is obvious between a case where the validity of the
act depends upon the existence of a fact which can be determined only after investigation of a very
complicated and technical character, and the ordinary case of a statute upon a subject requiring no
such investigation, and over which the jurisdiction of the legislature is complete in any event.

"We hold, therefore, that the provisions of the acts relating to the enforcement of the rates, either for
freight or passengers, by imposing such enormous fines and possible imprisonment as a result of an
unsuccessful effort to test the validity of the laws themselves, are unconstitutional on their face,
without regard to the question of the insufficiency of those rates. (Ex parte Young, 209 U. S., 123,
147, 148.)"

An examination of the general provisions of our statute, of the circumstances under which it was
enacted, the mischief which it sought to remedy and of the nature of the penalties prescribed for
violations of its terms convinces us that, unlike the statutes under consideration in the above cited
cases, its enactment involved no attempt to prevent common carriers "from resorting to the courts to
test the validity of the legislation;" no "effort to prevent any inquiry" as to its validity. It imposes no
arbitrary obligation upon the company to do or to refrain from doing anything. It makes no attempt to
compel such carriers to do business at a fixed or arbitrarily designated rate, at the risk of separate
criminal prosecutions for every demand of a higher or a different rate. Its penalties can be imposed
only upon proof of "unreasonable," "unnecessary" and "unjust" discriminations, and range from a
maximum which is certainly not excessive for willful, deliberate and contumacious violations of its
provisions by a great and powerful corporation, to a minimum which may be a merely nominal fine.
With so wide a range of discretion conferred upon the courts, there is no substantial basis for a
contention on the part of any common carrier that it or its officers are "intimidated from resorting to
the courts to test the validity" of the provisions of the statute prohibiting such "unreasonable,"
"unnecessary" and "unjust" discriminations, or to test in any particular case whether a given course of
conduct does in fact involve such discrimination. We will not presume, for the purpose of declaring
the statute invalid, that there is so real a danger that the Courts of First Instance and this court on
appeal will abuse the discretion thus conferred upon us, as to intimidate any common carrier, acting
in good faith, from resorting to the courts to test the validity of the statute. Legislative enactments,
penalizing unreasonable discriminations, unreasonable restraints of trade, and unreasonable conduct
in various forms of human activity are so familiar and have been so frequently sustained in the
courts, as to render extended discussion unnecessary to refute any contention as to the invalidity of
the statute under consideration, merely because it imposes upon the carrier the obligation of adopting
one of various courses of conduct open to it, at the risk of incurring a prescribed penalty in the event
that the course of conduct actually adopted by it should be held to have involved an unreasonable,
unnecessary or unjust discrimination. Applying the test announced in Ex parte Young, supra, it will
be seen that the validity of the Act does not depend upon the existence of a fact which can be
determined only after investigation of a very complicated and technical character," and that "the
jurisdiction of the legislature’" over the subject with which the statute deals "is complete in any
event." There can be no real question as to the plenary power of the legislature to prohibit and to
penalize the making of undue, unreasonable and unjust discriminations by common carriers to the
prejudice of any person, locality or particular kind of traffic. (See Munn v. Illinois, 94 U. S., 113, and
other cases hereinafter cited in support of this proposition.)

Counsel for petitioner contends also that the statute, if construed so as to deny the right of the
steamship company to elect at will whether or not it will engage in a particular business, such as that
of carrying explosives, is unconstitutional "because it is a confiscation of property, a taking of the
carrier’s property without due process of law," and because it deprives him of his liberty by
compelling him to engage in business against his will. The argument continues as
follows:jgc:chanrobles.com.ph

"To require of a carrier, as a condition to his continuing in said business, that he must carry anything
and everything is to render useless the facilities he may have for the carriage of certain lines of
freight. It would be almost as complete a confiscation of such facilities as if the same were destroyed.
Their value as a means of livelihood would be utterly taken away. The law is a prohibition to him to
continue in business; the alternative is to get out or to go into some other business — the same
alternative as was offered in the case of the Chicago & N. W. Ry. v. Dey (35 Fed. Rep., 866, 880),
and which was there commented on as follows:jgc:chanrobles.com.ph

"‘Whatever of force there may be in such arguments, as applied to mere personal property capable of
removal and use elsewhere, or in other business, it is wholly without force as against railroad
corporations, so large a proportion of whose investment is in the soil and fixtures appertaining
thereto, which cannot be removed. For a government, whether that government be a single sovereign
or one of the majority, to say to an individual who has invested his means in so laudable an enterprise
as the construction of a railroad, one which tends so much to the wealth and prosperity of the
community, that, if he finds that the rates imposed will cause him to do business at a loss, he may
quit business, and abandon that road, is the very irony of despotism. Apples of Sodom were fruit of
joy in comparison. Reading, as I do, in the preamble of the Federal Constitution, that it was ordained
to "establish justice," I can never believe that it is within the power of state or nation thus practically
to confiscate the property of an individual invested in and used for a purpose in which even the
Argus eyes of the police power can see nothing injurious to public morals, public health, or the
general welfare. I read also in the first section of the bill of rights of this state that "all men are by
nature free and equal, and have certain inalienable rights, among which are those of enjoying and
defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining
safety and happiness;" and I know that, while that remains as the supreme law of the state, no
legislature can directly or indirectly lay its withering or destroying hand on a single dollar invested in
the legitimate business of transportation.’" (Chicago & N. W. Ry. v. Dey, 35 Fed. Rep., 866, 880.)

It is manifest, however, that this contention is directed against a construction of the statute, which, as
we have said, is not warranted by its terms. As we have already indicated, the statute does not
"require of a carrier, as a condition to his continuing in said business, that he must carry anything and
everything," and thereby "render useless the facilities he may have for the carriage of certain lines of
freight." It merely forbids failures or refusals to receive persons or property for carriage which have
the effect of giving an "unreasonable or unnecessary preference or advantage" to any person, locality
or particular kind of traffic, or of subjecting any person, locality or particular kind of traffic to any
undue or unreasonable prejudice or discrimination.

Counsel expressly admits, that the statute, "as a prohibition against discrimination is a fair,
reasonable and valid exercise of government," and that "it is necessary and proper that such
discrimination be prohibited and prevented," but he contends that "on the other hand there is no
reasonable warrant nor valid excuse for depriving a person of his liberty by requiring him to engage
in business against his will. If he has a rolling boat, unsuitable and unprofitable for passenger trade,
he may devote it to lumber carrying. To prohibit him from using it unless it is fitted out with doctors
and stewards and staterooms to carry passengers would be an invalid confiscation of his property. A
carrier may limit his business to the branches thereof that suit his convenience. If his wagon be old,
or the route dangerous, he may avoid liability for loss of passengers’ lives and limbs by carrying
freight only. If his vehicles require expensive pneumatic tires, unsuitable for freight transportation,
he may nevertheless carry passengers. The only limitation upon his action that it is competent for the
governing authority to impose is to require him to treat all alike. His limitations must apply to all,
and they must be established limitations. He cannot refuse to carry a case of red jusi on the ground
that he has carried for others only jusi that was green, or blue, or black. But he can refuse to carry red
jusi, if he has publicly professed such a limitation upon his business and held himself out as
unwilling to carry the same for anyone."cralaw virtua1aw library
To this it is sufficient answer to say that there is nothing in the statute which would deprive any
person of his liberty "by requiring him to engage in business against his will." The prohibitions of the
statute against undue, unnecessary or unreasonable preferences and discriminations are merely the
reasonable regulations which the legislator has seen fit to prescribe for the conduct of the business in
which the carrier is engaged of his own free will and accord. In so far as the self-imposed limitations
by the carrier upon the business conducted by him, in the various examples given by counsel, do not
involve an unreasonable or unnecessary discrimination the statute would not control his action in any
wise whatever. It operates only in cases involving such unreasonable or unnecessary preferences or
discriminations. Thus in the hypothetical case suggested by the petitioner, a carrier engaged in the
carriage of green, blue or black jusi, and duly equipped therefor would manifestly be guilty of
"giving an unnecessary and unreasonable preference to a particular kind of traffic" and of subjecting
to "an undue and unreasonable prejudice a particular kind of traffic," should he decline to carry red
jusi, to the prejudice of a particular shipper or of those engaged in the manufacture of that kind of
jusi, basing his refusal on the ground of "mere whim or caprice" or of mere personal convenience. So
a public carrier of passengers would not be permitted under this statute to absolve himself from
liability for a refusal to carry a Chinaman, a Spaniard, an American, a Filipino, or a mestizo by proof
that from "mere whim or caprice or personal scruple," or to suit his own convenience, or in the hope
of increasing his business and thus making larger profits, he had publicly announced his intention not
to carry one or other of these classes of passengers.

The nature of the business of a common carrier as a public employment is such that it is clearly
within the power of the state to impose such just and reasonable regulations thereon in the interest of
the public as the legislator’ may deem proper. Of course such regulations must not have the effect of
depriving an owner of his property without due process of law, nor of confiscating or appropriating
private property without just compensation, nor of limiting or prescribing irrevocably vested rights or
privileges lawfully acquired under a charter or franchise. But aside from such constitutional
limitations, the determination of the nature and extent of the regulations which should be prescribed
rests in the hands of the legislator.

Common carriers exercise a sort of public office, and have duties to perform in which the public is
interested. Their business is, therefore, affected with a public interest, and is subject of public
regulation. (New Jersey Steam Nav. Co. v. Merchants Bank, 6 How., 344, 382; Munn v. Illinois, 94
U. S., 113, 130.) Indeed, this right of regulation is so far beyond question that it is well settled that
the power of the state to exercise legislative control over railroad companies and other carriers "in all
respects necessary to protect the public against danger, injustice and oppression" may be exercised
through boards of commissioners. (New York etc. R. Co. v. Bristol, 151 U. S., 556, 571; Connecticut
etc. R. Co. v. Woodruff, 153 U. S., 689.)

Regulations limiting the number of passengers that may be carried in a particular vehicle or steam
vessel, or forbidding the loading of a vessel beyond a certain point, or prescribing the number and
qualifications of the personnel in the employ of a common carrier, or forbidding unjust
discrimination as to rates, all tend to limit and restrict his liberty and to control to some degree the
free exercise of his discretion in the conduct of his business. But since the Granger cases were
decided by the Supreme Court of the United States no one questions the power of the legislator to
prescribe such reasonable regulations upon property clothed with a public interest as he may deem
expedient or necessary to protect the public against danger, injustice or oppression. (Munn v. Illinois,
94 U. S., 113, 130; Chicago etc. R. Co. v. Cutts, 94 U. S., 155; Budd v. New York, 143 U. S., 517;
Cotting v. Godard, 183 U. S., 79.) The right to enter the public employment as a common carrier and
to offer one’s services to the public for hire does not carry with it the right to conduct that business as
one pleases, without regard to the interests of the public and free from such reasonable and just
regulations as may be prescribed for the protection of the public from the reckless or careless
indifference of the carrier as to the public welfare and for the prevention of unjust and unreasonable
discrimination of any kind whatsoever in the performance of the carrier’s duties as a servant of the
public.

Business of certain kinds, including the business of a common carrier, holds such a peculiar relation
to the public interest that there is super induced upon it the right of public regulation. (Budd v. New
York, 143 U. S., 517, 533.) When private property is "affected with a public interest it ceases to be
juris privati only." Property becomes clothed with a public interest when used in a manner to make it
of public consequence and affect the community at large. "When, therefore, one devotes his property
to a use in which the public has an interest, he, in effect, grants to the public an interest in that use,
and must submit to be controlled by the public for the common good, to the extent of the interest he
has thus created. He may withdraw his grant by discontinuing the use, but so long as he maintains the
use he must submit to control." (Munn v. Illinois, 94 U. S., 113; Georgia R. & Bkg. Co. v. Smith,
128 U. S., 174; Budd v. New York, 143 U. S., 517; Louisville etc. Ry. Co. v. Kentucky, 161 U. S.,
677, 695.)

Of course this power to regulate is not a power to destroy, and limitation is not the equivalent of
confiscation. Under pretense of regulating fares and freight the state can not require a railroad
corporation to carry persons or property without reward. Nor can it do that which in law amounts to a
taking of private property for public use without just compensation, or without due process of law.
(Chicago etc. R. Co. v. Minnesota, 134 U. S., 418; Minneapolis Eastern R. Co. v. Minnesota, 134 U.
S., 467.) But the judiciary ought not to interfere with regulations established under legislative
sanction unless they are so plainly and palpably unreasonable as to make their enforcement
equivalent to the taking of property for public use without such compensation as under all the
circumstances is just both to the owner and to the public, that is, judicial interference should never
occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of
property under the guise of regulations as to compel the court to say that the regulation in question
will have the effect to deny just compensation for private property taken for the public use. (Chicago
etc. R. Co. v. Wellman, 143 U. S., 339; Smyth v. Ames, 169 U. S., 466, 524; Henderson Bridge Co.
v. Henderson City, 173 U. S., 592, 614.)

Under the common law of England it was early recognized that common carriers owe to the public
the duty of carrying indifferently for all who may employ them, and in the order in which application
is made, and without discrimination as to terms. True, they were allowed to restrict their business so
as to exclude particular classes of goods, but as to the kinds of property which the carrier was in the
habit of carrying in the prosecution of his business he was bound to serve all customers alike (State v.
Cincinnati etc. R. Co., 47 Ohio St., 130, 134, 138; Louisville etc. Ry. Co. v. Queen City Coal Co., 13
Ky. L. Rep., 832); and it is to be observed in passing that these common law rules are themselves
regulations controlling, limiting and prescribing the conditions under which common carriers were
permitted to conduct their business. (Munn v. Illinois, 94 U. S., 113, 133.)

It was found, in the course of time, that the correction of abuses which had grown up with the
enormously increasing business of common carriers necessitated the adoption of statutory regulations
controlling the business of common carriers, and imposing severe and drastic penalties for violations
of their terms. In England, the Railway Clauses Consolidation Act was enacted in 1845, the Railway
and Canal Traffic Act in 1854, and since the passage of those Acts much additional legislation has
been adopted tending to limit and control the conduct of their business by common carriers. In the
United States, the business of common carriers has been subjected to a great variety of statutory
regulations. Among others Congress enacted "The Interstate Commerce Act" (1887) and its
amendments, and the Elkins Act as amended (1906); and most if not all of the States of the Union
have adopted similar legislation regulating the business of common carriers within their respective
jurisdictions Unending litigation has arisen under these statutes and their amendments, but nowhere
has the right of the state to prescribe just and reasonable regulations controlling and limiting the
conduct of the business of common carriers in the public interest and for the general welfare been
successfully challenged, though of course there has been wide divergence of opinion as to the
reasonableness, the validity and legality of many of the regulations actually adopted.

The power of the Philippine legislator to prohibit and to penalize all and any unnecessary or
unreasonable discriminations by common carriers may be maintained upon the same reasoning which
justified the enactment by the Parliament of England and the Congress of the United States of the
above mentioned statutes prohibiting and penalizing the granting of certain preferences and
discriminations in those countries. As we have said before, we find nothing confiscatory or
unreasonable in the conditions imposed in the Philippine statute upon the business of common
carriers. Correctly construed they do not force him to engage in any business against his will or to
make use of his facilities in a manner or for a purpose for which they are not reasonably adapted. It is
only when he offers his facilities as a common carrier to the public for hire, that the statute steps in
and prescribes that he must treat all alike, that he may not pick and choose which customer he will
serve, and, specifically, that he shall not make any undue or unreasonable preferences or
discriminations whatsoever to the prejudice not only of any person or locality but also of any
particular kind of traffic.

The legislator having enacted a regulation prohibiting common carriers from giving unnecessary or
unreasonable preferences or advantages to any particular kind of traffic or subjecting any particular
kind of traffic to any undue or unreasonable prejudice or discrimination whatsoever, it is clear that
whatever may have been the rule at the common law, common carriers in this jurisdiction cannot
lawfully decline to accept a particular class of goods for carriage, to the prejudice of the traffic in
those goods, unless it appears that for some sufficient reason the discrimination against the traffic in
such goods is reasonable and necessary. Mere whim or prejudice will not suffice. The grounds for the
discrimination must be substantial ones, such as will justify the courts in holding the discrimination
to have been reasonable and necessary under all the circumstances of the case.

The prayer of the petition in the case at bar cannot be granted unless we hold that the refusal of the
defendant steamship company to accept for carriage on any of its vessels "dynamite, gunpowder or
other explosives" would in no instance involve a violation of the provisions of this statute. There can
be little doubt, however, that cases may and will arise wherein the refusal of a vessel "engaged in the
coastwise trade of the Philippine Islands as a common carrier" to accept such explosives for carriage
would subject some person, company; firm or corporation, or locality, or particular kind of traffic to
a certain prejudice or discrimination. Indeed it cannot be doubted that the refusal of a "steamship
company, the owner of a large number of vessels" engaged in that trade to receive for carriage any
such explosives on any of its vessels would subject the traffic in such explosives to a manifest
prejudice and discrimination. The only question to be determined therefore is whether such prejudice
or discrimination might in any case prove to be undue, unnecessary or unreasonable.

This of course is, in each case, a question of fact, and we are of opinion that the facts alleged in the
complaint are not sufficient to sustain a finding in favor of the contentions of the petitioner. It is not
alleged in the complaint that "dynamite, gunpowder and other explosives" can in no event be
transported with reasonable safety on board steam vessels engaged in the business of common
carriers. It is not alleged that all, or indeed any of the defendant steamship company’s vessels are
unsuited for the carriage of such explosives. It is not alleged that the nature of the business in which
the steamship company is engaged is such. as to preclude a finding that a refusal to accept such
explosives on any of its vessels would subject the traffic in such explosives to an undue and
unreasonable prejudice and discrimination.

Plaintiff’s contention in this regard is as follows:jgc:chanrobles.com.ph

"In the present case, the respondent company has expressly and publicly renounced the carriage of
explosives, and expressly excluded the same in terms from the business it conducts. This in itself
were sufficient, even though such exclusion of explosives were based on no other ground than the
mere whim, caprice or personal scruple of the carrier. It is unnecessary, however, to indulge in
academic discussion of a moot question, for the decision not to carry explosives rests on substantial
grounds which are self-evident."cralaw virtua1aw library

We think however that the answer to the question whether such a refusal to carry explosives involves
an unnecessary or unreasonable preference or advantage to any person, locality or particular kind of
traffic or subjects any person, locality or particular kind of traffic to an undue or unreasonable
prejudice or discrimination is by no means "self-evident," and that it is a question of fact to be
determined by the particular circumstances of each case.

The words "dynamite, powder or other explosives" are broad enough to include matches, and other
articles of like nature, and may fairly be held to include also kerosene oil, gasoline and similar
products of a highly inflammable and explosive character. Many of these articles of merchandise are
in the nature of necessities in any country open to modern progress and advancement. We are not
fully advised as to the methods of transportation by which they are made commercially available
throughout the world, but certain it is that dynamite, gunpowder, matches, kerosene oil and gasoline
are transported on many vessels sailing the high seas. Indeed it is matter of common knowledge that
common carriers throughout the world transport enormous quantities of these explosives, on both
land and sea, and there can be little doubt that a general refusal of the common carriers in any
country to accept such explosives for carriage would involve many persons, firms and enterprises in
utter ruin, and would disastrously affect the interests of the public and the general welfare of the
community.

It would be going far to say that a refusal by a steam vessel engaged in the business of transporting
general merchandise as a common carrier to accept for carriage a shipment of matches, solely on the
ground of the dangers incident to the explosive quality of this class of merchandise, would not
subject the traffic in matches to an unnecessary, undue or unreasonable prejudice or discrimination
without proof that for some special reason the particular vessel is not fitted to carry articles of that
nature. There may be and doubtless are some vessels engaged in business as common carriers of
merchandise, which for, lack of suitable deck space or storage rooms might be justified in declining
to carry kerosene oil, gasoline, and similar products, even when offered for carriage securely packed
in cases; and few vessels are equipped to transport those products in bulk. But in any case of a refusal
to carry such products which would subject any person, locality or the traffic in such products to any
prejudice or discrimination whatsoever, it would be necessary to hear evidence before making an
affirmative finding that such prejudice or discrimination was or was not unnecessary, undue or
unreasonable. The making of such a finding would involve a consideration of the suitability of the
vessel for the transportation of such products; the reasonable possibility of danger or disaster
resulting from their transportation in the form and under the conditions in which they are offered for
carriage; the general nature of the business done by the carrier and, in a word, all the attendant
circumstances which might affect the question of the reasonable necessity for the refusal by the
carrier to undertake the transportation of this class of merchandise.

But it is contended that whatever the rule may be as to other explosives, the exceptional power and
violence of dynamite and gunpowder in explosion will always furnish the owner of a vessel with a
reasonable excuse for his failure or refusal to accept them for carriage or to carry them on board his
boat. We think however that even as to dynamite and gunpowder we would not be justified in
making such a holding unaided by evidence sustaining the proposition that these articles can never be
carried with reasonable safety on any vessel engaged in the business of a common carrier. It is said
that dynamite is so erratic and uncontrollable in its action that it is impossible to assert that it can be
handled with safety in any given case. On the other hand it is contended that while this may be true
of some kinds of dynamite, it is a fact that dynamite can be and is manufactured so as to eliminate
any real danger from explosion during transportation. These are of course questions of fact upon
which we are not qualified to pass judgment without the assistance of expert witnesses who have
made special studies as to the chemical composition and reactions of the different kinds of dynamite,
or attained a thorough knowledge of its properties as a result of wide experience in its manufacture
and transportation.

As we construe the Philippine statute, the mere fact that violent and destructive explosions can be
obtained by the use of dynamite under certain conditions would not be sufficient in itself to justify
the refusal of a vessel, duly licensed as a common carrier of merchandise, to accept it for carriage, if
it can be proven that in the condition in which it is offered for carriage there is no real danger to the
carrier, nor reasonable ground to fear that his vessel or those on board his vessel will be exposed to
unnecessary and unreasonable risk in transporting it, having in mind the nature of his business as a
common carrier engaged in the coastwise trade in the Philippine Islands, and his duty as a servant of
the public engaged in a public employment. So also, if by the exercise of due diligence and the taking
of reasonable precautions the danger of explosions can be practically eliminated, the carrier would
not be justified in subjecting the traffic in this commodity to prejudice or discrimination by proof that
there would be a possibility of danger from explosion when no such precautions are taken.

The traffic in dynamite, gunpowder and other explosives is vitally essential to the material and
general welfare of the people of these Islands. If dynamite, gunpowder and other explosives are to
continue in general use throughout the Philippines, they must be transported by water from port to
port in the various islands which make up the Archipelago. We are satisfied therefore that the refusal
by a particular vessel, engaged as a common carrier of merchandise in the coastwise trade of the
Philippine Islands, to accept any or all of these explosives for carriage would constitute a violation of
the prohibitions against discriminations penalized under the statute, unless it can be shown by
affirmative evidence that there is so real and substantial a danger of disaster necessarily involved in
the carriage of any or all of these articles of merchandise as to render such refusal a due or a
necessary or a reasonable exercise of prudence and discretion on the part of the shipowner.

The complaint in the case at bar lacking the necessary allegations under this ruling, the demurrer
must be sustained on the ground that the facts alleged do not constitute a cause of action.

A number of interesting questions of procedure are raised and discussed in the briefs of counsel. As
to all of these questions we expressly reserve our opinion, believing as we do that in sustaining the
demurrer on the grounds indicated in this opinion we are able to dispose of the real issue involved in
the proceedings without entering upon the discussion of the nice questions which it might have been
necessary to pass upon had it appeared that the facts alleged in the complaint constitute a cause of
action.

We think, however, that we should not finally dispose of the case without indicating that since the
institution of these proceedings the enactment of Acts No. 2307 and No. 2362 (creating a Board of
Public Utility Commissioners and for other purposes) may have materially modified the right to
institute and maintain such proceedings in this jurisdiction. But the demurrer having been formally
submitted for judgment before the enactment of these statutes, counsel have not been heard in this
connection. We therefore refrain from any comment upon any questions which might be raised as to
whether or not there may be another adequate and appropriate remedy for the alleged wrong set forth
in the complaint. Our disposition of the question raised by the demurrer renders that unnecessary at
this time, though it may not be improper to observe that a careful examination of those acts confirms
us in the holding upon which we base our ruling on this demurrer, that is to say "That whatever may
have been the rule at the common law, common carriers in this jurisdiction cannot lawfully decline to
accept a particular class of goods for carriage, to the prejudice of the traffic in those goods, unless it
appears that for some sufficient reason the discrimination against the traffic in such goods is
reasonable and necessary. Mere prejudice or whim will not suffice. The grounds of the
discrimination must be substantial ones, such as will justify the courts in holding the discrimination
to have been reasonable and necessary under all the circumstances of the case."cralaw virtua1aw
library

Unless an amended complaint be filed in the meantime let judgment be entered ten days hereafter
sustaining the demurrer and dismissing the complaint with costs against the complainant, and twenty
days thereafter let the record be filed in the archives of original actions in this court. So ordered.
G.R. No. 95536 March 23, 1992

ANICETO G. SALUDO, JR., MARIA SALVACION SALUDO, LEOPOLDO G. SALUDO

and SATURNINO G. SALUDO, petitioners,
vs.
HON. COURT OF APPEALS, TRANS WORLD AIRLINES, INC., and PHILIPPINE
AIRLINES, INC., respondents.

REGALADO, J.:

Assailed in this petition for review on certiorari is the decision in CA-G.R. CV No. 20951 of
respondent Court of Appeals1 which affirmed the decision of the trial court2 dismissing for lack of
evidence herein petitioners' complaint in Civil Case No R-2101 of the then Court of First Instance of
Southern Leyte, Branch I.

The facts, as recounted by the court a quo and adopted by respondent court after "considering the
evidence on record," are as follows:

After the death of plaintiffs' mother, Crispina Galdo Saludo, in Chicago Illinois, (on)
October 23, 1976 (Exh. A), Pomierski and Son Funeral Home of Chicago, made the
necessary preparations and arrangements for the shipment, of the remains from
Chicago to the Philippines. The funeral home had the remains embalmed (Exb. D)
and secured a permit for the disposition of dead human body on October 25, 1976
(Exh. C), Philippine Vice Consul in Chicago, Illinois, Bienvenido M. Llaneta, at 3:00
p.m. on October 26, 1976 at the Pomierski & Son Funeral Home, sealed the shipping
case containing a hermetically sealed casket that is airtight and waterproof wherein
was contained the remains of Crispina Saludo Galdo (sic) (Exb. B). On the same date,
October 26, 1976, Pomierski brought the remains to C.M.A.S. (Continental Mortuary
Air Services) at the airport (Chicago) which made the necessary arrangements such as
flights, transfers, etc.; C.M.A.S. is a national service used by undertakers to
throughout the nation (U.S.A.), they furnish the air pouch which the casket is
enclosed in, and they see that the remains are taken to the proper air freight terminal
(Exh. 6-TWA). C.M.A.S. booked the shipment with PAL thru the carrier's agent Air
Care International, with Pomierski F.H. as the shipper and Mario (Maria) Saludo as
the consignee. PAL Airway Bill No. 079-01180454 Ordinary was issued wherein the
requested routing was from Chicago to San Francisco on board TWA Flight 131 of
October 27, 1976 and from San Francisco to Manila on board PAL Flight No. 107 of
the same date, and from Manila to Cebu on board PAL Flight 149 of October 29,
1976 (See Exh. E., Also Exh. 1-PAL).

In the meantime, plaintiffs Maria Salvacion Saludo and Saturnino Saludo, thru a
travel agent, were booked with United Airlines from Chicago to California, and with
PAL from California to Manila. She then went to the funeral director of Pomierski
Funeral Home who had her mother's remains and she told the director that they were
booked with United Airlines. But the director told her that the remains were booked
with TWA flight to California. This upset her, and she and her brother had to change
reservations from UA to the TWA flight after she confirmed by phone that her
mother's remains should be on that TWA flight. They went to the airport and watched
from the look-out area. She saw no body being brought. So, she went to the TWA
counter again, and she was told there was no body on that flight. Reluctantly, they
took the TWA flight upon assurance of her cousin, Ani Bantug, that he would look
into the matter and inform her about it on the plane or have it radioed to her. But no
confirmation from her cousin reached her that her mother was on the West Coast.

Upon arrival at San Francisco at about 5:00 p.m., she went to the TWA counter there
to inquire about her mother's remains. She was told they did not know anything about
it.

She then called Pomierski that her mother's remains were not at the West Coast
terminal, and Pomierski immediately called C.M.A.S., which in a matter of 10
minutes informed him that the remains were on a plane to Mexico City, that there
were two bodies at the terminal, and somehow they were switched; he relayed this
information to Miss Saludo in California; later C.M.A.S. called and told him they
were sending the remains back to California via Texas (see Exh. 6-TWA).

It-turned out that TWA had carried a shipment under PAL Airway Bill No. 079-
ORD-01180454 on TWA Flight 603 of October 27, 1976, a flight earlier than TWA
Flight 131 of the same date. TWA delivered or transferred the said shipment said to
contain human remains to PAL at 1400H or 2:00 p.m. of the same date, October 27,
1976 (Bee Exh. 1- TWA). "Due to a switch(ing) in Chicago", this shipment was
withdrawn from PAL by CMAS at 1805H (or 6:05 p.m.) of the same date, October
27 (Exh. 3-PAL, see Exh. 3-a-PAL).

What transpired at the Chicago (A)irport is explained in a memo or incident report by

Pomierski (Exh. 6-TWA) to Pomierski's lawyers who in turn referred to said' memo
and enclosed it in their (Pomierski's lawyers) answer dated July 18, 1981 to herein
plaintiff's counsel (See Exh. 5-TWA). In that memo or incident report (Exh. 6-TWA),
it is stated that the remains (of Crispina Saludo) were taken to CMAS at the airport;
that there were two bodies at the (Chicago Airport) terminal, and somehow they were
switched, that the remains (of Crispina Saludo) were on a plane to Mexico City; that
CMAS is a national service used by undertakers throughout the nation (U.S.A.),
makes all the necessary arrangements, such as flights, transfers, etc., and see(s) to it
that the remains are taken to the proper air freight terminal.

The following day October 28, 1976, the shipment or remains of Crispina Saludo
arrived (in) San Francisco from Mexico on board American Airlines. This shipment
was transferred to or received by PAL at 1945H or 7:45 p.m. (Exh. 2-PAL, Exh. 2-a-
PAL). This casket bearing the remains of Crispina Saludo, which was mistakenly sent
to Mexico and was opened (there), was resealed by Crispin F. Patagas for shipment to
the Philippines (See Exh. B-1). The shipment was immediately loaded on PAL flight
for Manila that same evening and arrived (in) Manila on October 30, 1976, a day
after its expected arrival on October 29, 1976.3
In a letter dated December 15, 1976,4 petitioners' counsel informed private respondent Trans World
Airlines (TWA) of the misshipment and eventual delay in the delivery of the cargo containing the
remains of the late Crispin Saludo, and of the discourtesy of its employees to petitioners Maria
Salvacion Saludo and Saturnino Saludo. In a separate letter on June 10, 1977 addressed to co-
respondent Philippine Airlines (PAL),5 petitioners stated that they were holding PAL liable for said
delay in delivery and would commence judicial action should no favorable explanation be given.

Both private respondents denied liability. Thus, a damage suit6 was filed by petitioners before the
then Court of First Instance, Branch III, Leyte, praying for the award of actual damages of
P50,000.00, moral damages of P1,000,000.00, exemplary damages, attorney's fees and costs of suit.

As earlier stated, the court below absolved the two respondent airlines companies of liability. The
Court of Appeals affirmed the decision of the lower court in toto, and in a subsequent
resolution,7 denied herein petitioners' motion for reconsideration for lack of merit.

In predictable disagreement and dissatisfaction with the conclusions reached by respondent appellate
court, petitioners now urge this Court to review the appealed decision and to resolve whether or not
(1) the delay in the delivery of the casketed remains of petitioners' mother was due to the fault of
respondent airline companies, (2) the one-day delay in the delivery of the same constitutes
contractual breach as would entitle petitioners to damages, (3) damages are recoverable by
petitioners for the humiliating, arrogant and indifferent acts of the employees of TWA and PAL, and
(4) private respondents should be held liable for actual, moral and exemplary damages, aside from
attorney's fees and litigation expenses.8

At the outset and in view of the spirited exchanges of the parties on this aspect, it is to be stressed
that only questions of law may be raised in a petition filed in this Court to review on certiorari the
decision of the Court of Appeals.9 This being so, the factual findings of the Court of Appeals are
final and conclusive and cannot be reviewed by the Supreme Court. The rule, however, admits of
established exceptions, to wit: (a) where there is grave abuse of discretion; (b) when the finding is
grounded entirely on speculations, surmises or conjectures;(c) when the inference made is
manifestly-mistaken, absurd or impossible; (d) when the judgment of the Court of Appeals was based
on a misapprehension of facts; (e) when the factual findings are conflicting; (f) when the Court of
Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the
admissions of both appellant and appellee; 10 (g) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties and which, if properly considered, would justify a
different conclusion; 11 and (h) where the findings of fact of the Court of Appeals are contrary to
those of the trial court, or are mere conclusions without citation of specific evidence, or where the
facts of set forth by the petitioner are not disputed by the respondent, or where the findings of fact of
the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence
on record. 12

To distinguish, a question of law is one which involves a doubt or controversy on what the law is on
a certain state of facts; and, a question of fact, contrarily, is one in which there is a doubt or
difference as to the truth or falsehood of the alleged facts. 13 One test, it has been held, is whether the
appellate court can determine the issue raised without reviewing or evaluating the evidence, in which
case it is a question of law, otherwise it will be a question of fact.14
Respondent airline companies object to the present recourse of petitioners on the ground that this
petition raises only factual questions. 15 Petitioners maintain otherwise or, alternatively, they are of
the position that, assuming that the petition raises factual questions, the same are within the
recognized exceptions to the general rule as would render the petition cognizable and worthy of
review by the Court. 16

Since it is precisely the soundness of the inferences or conclusions that may be drawn from the
factual issues which are here being assayed, we find that the issues raised in the instant petition
indeed warrant a second look if this litigation is to come to a reasonable denouement. A
discussion seriatim of said issues will further reveal that the sequence of the events involved is in
effect disputed. Likewise to be settled is whether or not the conclusions of the Court of Appeals
subject of this review indeed find evidentiary and legal support.

I. Petitioners fault respondent court for "not finding that private respondents failed to exercise
extraordinary diligence required by law which resulted in the switching and/or misdelivery of the
remains of Crispina Saludo to Mexico causing gross delay in its shipment to the Philippines, and
consequently, damages to petitioners." 17

Petitioner allege that private respondents received the casketed remains of petitioners' mother on
October 26, 1976, as evidenced by the issuance of PAL Air Waybill No. 079-01180454 18 by Air
Care International as carrier's agent; and from said date, private respondents were charged with the
responsibility to exercise extraordinary diligence so much so that for the alleged switching of the
caskets on October 27, 1976, or one day after private respondents received the cargo, the latter must
necessarily be liable.

To support their assertion, petitioners rely on the jurisprudential dictum, both under American and
Philippine law, that "(t)he issuance of a bill of lading carries the presumption that the goods were
delivered to the carrier issuing the bill, for immediate shipment, and it is nowhere questioned that a
bill of lading is prima facie evidence of the receipt of the goods by the carrier. . . . In the absence of
convincing testimony establishing mistake, recitals in the bill of lading showing that the carrier
received the goods for shipment on a specified date control (13 C.J.S. 235)." 19

A bill of lading is a written acknowledgment of the receipt of the goods and an agreement to
transport and deliver them at a specified place to a person named or on his order. Such instrument
may be called a shipping receipt, forwarder's receipt and receipt for transportation. 20 The
designation, however, is immaterial. It has been hold that freight tickets for bus companies as well as
receipts for cargo transported by all forms of transportation, whether by sea or land, fall within the
definition. Under the Tariff and Customs Code, a bill of lading includes airway bills of lading. 21 The
two-fold character of a bill of lading is all too familiar; it is a receipt as to the quantity and
description of the goods shipped and a contract to transport the goods to the consignee or other
person therein designated, on the terms specified in such instrument. 22

Logically, since a bill of lading acknowledges receipt of goods to be transported, delivery of the
goods to the carrier normally precedes the issuance of the bill; or, to some extent, delivery of the
goods and issuance of the bill are regarded in commercial practice as simultaneous acts. 23 However,
except as may be prohibited by law, there is nothing to prevent an inverse order of events, that is, the
execution of the bill of lading even prior to actual possession and control by the carrier of the cargo
to be transported. There is no law which requires that the delivery of the goods for carriage and the
issuance of the covering bill of lading must coincide in point of time or, for that matter, that the
former should precede the latter.

Ordinarily, a receipt is not essential to a complete delivery of goods to the carrier for transportation
but, when issued, is competent and prima facie, but not conclusive, evidence of delivery to the
carrier. A bill of lading, when properly executed and delivered to a shipper, is evidence that the
carrier has received the goods described therein for shipment. Except as modified by statute, it is a
general rule as to the parties to a contract of carriage of goods in connection with which a bill of
lading is issued reciting that goods have been received for transportation, that the recital being in
essence a receipt alone, is not conclusive, but may be explained, varied or contradicted by parol or
other evidence. 24

While we agree with petitioners' statement that "an airway bill estops the carrier from denying receipt
of goods of the quantity and quality described in the bill," a further reading and a more faithful
quotation of the authority cited would reveal that "(a) bill of lading may contain constituent elements
of estoppel and thus become something more than a contract between the shipper and the carrier. . . .
(However), as between the shipper and the carrier, when no goods have been delivered for shipment
no recitals in the bill can estop the carrier from showing the true facts . . . Between the consignor of
goods and receiving carrier, recitals in a bill of lading as to the goods shipped raise only a
rebuttable presumption that such goods were delivered for shipment. As between the consignor and a
receiving carrier, the fact must outweigh the recital." 25 (Emphasis supplied)

For this reason, we must perforce allow explanation by private respondents why, despite the issuance
of the airway bill and the date thereof, they deny having received the remains of Crispina Saludo on
October 26, 1976 as alleged by petitioners.

The findings of the trial court, as favorably adopted by the Court of Appeals and which we have
earner quoted, provide us with the explanation that sufficiently over comes the presumption relied on
by petitioners in insisting that the remains of their mother were delivered to and received by private
respondents on October 26, 1976. Thus —

. . . Philippine Vice Consul in Chicago, Illinois, Bienvenido M. Llaneta, at 3:00 p.m.

on October 26, 1976 at the Pomierski & Son Funeral Home, sealed the shipping case
containing a hermetically sealed casket that is airtight and waterproof wherein was
contained the remains of Crispina Saludo Galdo (sic) (Exh. B). On the same date
October 26, 1976, Pomierski brought the remains to C.M.A.S. (Continental Mortuary
Air Services) at the airport (Chicago) which made the necessary arrangements such
as flights, transfers, etc; C.M.A.S. is a national service used by undertakers
throughout the nation (U.S.A.), they furnish the air pouch which the casket is
enclosed in, and they see that the remains are taken to the proper air freight terminal
(Exh. G-TWA). C.M.A.S. booked the shipment with PAL thru the carrier's agent Air
Care International, with Pomierski F.H. as the shipper and Mario (Maria) Saludo as
the consignee. PAL Airway Bill No. 079- 01180454 Ordinary was issued wherein the
requested routing was from Chicago to San Francisco on board TWA Flight-131 of
October 27;1976, and from San Francisco to Manila on board PAL Flight No. 107 of
the same date, and from Manila to Cebu on board PAL Flight 149 of October 29,
1976 (See Exh. E, also Exh. 1-PAL).26 (Emphasis ours.)
Moreover, we are persuaded to believe private respondent PAL's account as to what transpired
October 26, 1976:

. . . Pursuant thereto, on 26 October 1976, CMAS acting upon the instruction of

Pomierski, F.H., the shipper requested booking of the casketed remains of Mrs.
Cristina (sic) Saludo on board PAL's San Francisco-Manila Flight No. PR 107 on
October 27, 1976.

2. To signify acceptance and confirmation of said booking, PAL issued to said

Pomierski F.H., PAL Airway Bill No. 079-01180454 dated October 27, 1976 (sic,
"10/26/76"). PAL confirmed the booking and transporting of the shipment on board
of its Flight PR 107 on October 27, 1976 on the basis of the representation of the
shipper and/or CMAS that the said cargo would arrive in San Francisco from Chicago
on board United Airlines Flight US 121 on 27 October 1976.27

In other words, on October 26, 1976 the cargo containing the casketed remains of Crispina Saludo
was booked for PAL Flight Number PR-107 leaving San Francisco for Manila on October 27, 1976,
PAL Airway Bill No. 079-01180454 was issued, not as evidence of receipt of delivery of the cargo
on October 26, 1976, but merely as a confirmation of the booking thus made for the San Francisco-
Manila flight scheduled on October 27, 1976. Actually, it was not until October 28, 1976 that PAL
received physical delivery of the body at San Francisco, as duly evidenced by the Interline Freight
Transfer Manifest of the American Airline Freight System and signed for by Virgilio Rosales at
1945H, or 7:45 P.M. on said date.28

Explicit is the rule under Article 1736 of the Civil Code that the extraordinary responsibility of the
common carrier begins from the time the goods are delivered to the carrier. This responsibility
remains in full force and effect even when they are temporarily unloaded or stored in transit, unless
the shipper or owner exercises the right of stoppage in transitu, 29 and terminates only after the lapse
of a reasonable time for the acceptance, of the goods by the consignee or such other person entitled to
receive them. 30 And, there is delivery to the carrier when the goods are ready for and have been
placed in the exclusive possession, custody and control of the carrier for the purpose of their
immediate transportation and the carrier has accepted them. 31 Where such a delivery has thus been
accepted by the carrier, the liability of the common carrier commences eo instanti. 32

Hence, while we agree with petitioners that the extraordinary diligence statutorily required to be
observed by the carrier instantaneously commences upon delivery of the goods thereto, for such duty
to commence there must in fact have been delivery of the cargo subject of the contract of carriage.
Only when such fact of delivery has been unequivocally established can the liability for loss,
destruction or deterioration of goods in the custody of the carrier, absent the excepting causes under
Article 1734, attach and the presumption of fault of the carrier under Article 1735 be invoked.

As already demonstrated, the facts in the case at bar belie the averment that there was delivery of the
cargo to the carrier on October 26, 1976. Rather, as earlier explained, the body intended to be
shipped as agreed upon was really placed in the possession and control of PAL on October 28, 1976
and it was from that date that private respondents became responsible for the agreed cargo under
their undertakings in PAL Airway Bill No. 079-01180454. Consequently, for the switching of
caskets prior thereto which was not caused by them, and subsequent events caused thereby, private
respondents cannot be held liable.
Petitioners, proceeding on the premise that there was delivery of the cargo to private respondents on
October 26,1976 and that the latter's extraordinary responsibility had by then become operative,
insist on foisting the blame on private respondents for the switching of the two caskets which
occurred on October 27, 1976. It is argued that since there is no clear evidence establishing the fault
Continental Mortuary Air Services (CMAS) for the mix-up, private respondents are presumably
negligent pursuant to Article 1735 of the Civil Code and, for failure to rebut such presumption, they
must necessarily be held liable; or, assuming that CMAS was at fault, the same does not absolve
private respondents of liability because whoever brought the cargo to the airport or loaded it on the
plane did so as agent of private respondents.

This contention is without merit. As pithily explained by the Court of Appeals:

The airway bill expressly provides that "Carrier certifies goods described below were
received for carriage", and said cargo was "casketed human remains of Crispina
Saludo," with "Maria Saludo as Consignee; Pomierski F.H. as Shipper; Air Care
International as carrier's agent." On the face of the said airway bill, the specific flight
numbers, specific routes of shipment and dates of departure and arrival were
typewritten, to wit: Chicago TWA Flight 131/27 to San Francisco and from San
Francisco by PAL 107 on, October 27, 1976 to Philippines and to Cebu via PAL
Flight 149 on October 29, 1976. The airway bill also contains the following
typewritten words, as follows: all documents have been examined (sic). Human
remains of Crispina Saludo. Please return back (sic) first available flight to SFO.

But, as it turned out and was discovered later the casketed human remains which was
issued PAL Airway Bill #079-1180454 was not the remains of Crispina Saludo, the
casket containing her remains having been shipped to Mexico City.

However, it should be noted that, Pomierski F.H., the shipper of Mrs. Saludo's
remains, hired Continental Mortuary Services (hereafter referred to as C.M.A.S.),
which is engaged in the business of transporting and forwarding human remains.
Thus, C.M.A.S. made all the necessary arrangements such as flights, transfers, etc. —
for shipment of the remains of Crispina Saludo.

The remains were taken on October 26th, 1976, to C.M.A.S. at the

airport. These people made all the necessary arrangements, such as
flights, transfers, etc. This is a national service used by undertakers
throughout the nation. They furnished the air pouch which the casket
is enclosed in, and they see that the remains are taken to the proper air
frieght terminal. I was very surprised when Miss Saludo called me to
say that the remains were not at the west coast terminal. I immediately
called C.M.A.S. They called me back in a matter of ten minutes to
inform me that the remains were on a plane to Mexico City. The man
said that there were two bodies at the terminal, and somehow they
were switched. . . . (Exb. 6 — "TWA", which is the memo or incident
report enclosed in the stationery of Walter Pomierski & Sons Ltd.)

Consequently, when the cargo was received from C.M.A.S. at the Chicago airport
terminal for shipment, which was supposed to contain the remains of Crispina
 Saludo, Air Care International and/or TWA, had no way of determining its actual
contents, since the casket was hermetically sealed by the Philippine Vice-Consul in
Chicago and in an air pouch of C.M.A.S., to the effect that Air Care International
and/or TWA had to rely on the information furnished by the shipper regarding the
cargo's content. Neither could Air Care International and/or TWA open the casket for
further verification, since they were not only without authority to do so, but even
prohibited.

Thus, under said circumstances, no fault and/or negligence can be attributed to PAL
(even if Air Care International should be considered as an agent of PAL) and/or
TWA, the entire fault or negligence being exclusively with C.M.A.S. 33 (Emphasis
supplied.)

It can correctly and logically be concluded, therefore, that the switching occurred or, more
accurately, was discovered on October 27, 1976; and based on the above findings of the Court of
appeals, it happened while the cargo was still with CMAS, well before the same was place in the
custody of private respondents.

Thus, while the Air Cargo Transfer Manifest of TWA of October 27, 197634 was signed by Garry
Marcial of PAL at 1400H, or 2:00 P.M., on the same date, thereby indicating acknowledgment by
PAL of the transfer to them by TWA of what was in truth the erroneous cargo, said misshipped cargo
was in fact withdrawn by CMAS from PAL as shown by the notation on another copy of said
manifest35 stating "Received by CMAS — Due to switch in Chicago 10/27-1805H," the authenticity
of which was never challenged. This shows that said misshipped cargo was in fact withdrawn by
CMAS from PAL and the correct shipment containing the body of Crispina Saludo was received by
PAL only on October 28, 1976, at 1945H, or 7:45 P.M., per American Airlines Interline Freight
Transfer Manifest No. AA204312.36

Witness the deposition of TWA's ramp serviceman, Michael Giosso, on this matter:

ATTY. JUAN COLLAS, JR.:

On that date, do (sic) you have occasion to handle or deal with the transfer of cargo from TWA Flight No. 603 to
PAL San Francisco?

MICHAEL GIOSSO:

Yes, I did.

ATTY. JUAN COLLAS, JR.:

What was your participation with the transfer of the cargo?

MICHAEL GIOSSO:

I manifested the freight on a transfer manifest and physically moved it to PAL and concluded the transfer by
signing it off.

ATTY. JUAN COLLAS, JR.:

You brought it there yourself?

MICHAEL GIOSSO:
 Yes sir.

ATTY. JUAN COLIAS, JR.:

Do you have anything to show that PAL received the cargo from TWA on October 27, 1976?

MICHAEL GIOSSO:

Yes, I do.

(Witness presenting a document)

ATTY. JUAN COLLAS, JR.:

For purposes of clarity, Exhibit I is designated as Exhibit I-TWA.

xxx xxx xxx

ATTY. JUAN COLLAS, JR.:

This Exhibit I-TWA, could you tell what it is, what it shows?

MICHAEL GIOSSO:

It shows transfer of manifest on 10-27-76 to PAL at 1400 and verified with two signatures as it completed the
transfer.

ATTY. JUAN COLLAS, JR.:

Very good,. Who was the PAL employee who received the cargo?

MICHAEL GIOSSO:

The name is Garry Marcial." 37

The deposition of Alberto A. Lim, PAL's cargo supervisor at San Francisco, as deponent-witness for PAL, makes this further clarification:

ATTY. CESAR P. MANALAYSAY:

You mentioned Airway Bill, Mr. Lim. I am showing to you a PAL Airway Bill Number 01180454 which for
purposes of evidence, I would like to request that the same be marked as evidence Exhibit I for PAL.

xxx xxx xxx

In what circumstances did you encounter Exhibit I-PAL?

ALBERTO A. LIM:

If I recall correctly, I was queried by Manila, our Manila office with regard to a certain complaint that a consignee
filed that this shipment did not arrive on the day that the consignee expects the shipment to arrive.

ATTY CESAR P. MANALAYSAY:

Okay. Now, upon receipt of that query from your Manila office, did you conduct any investigation to pinpoint the
possible causes of mishandling?

ALBERTO A. LIM:

Yes.
 xxx xxx xxx

ATTY. CESAR P. MANALAYSAY:

What is the result of your investigation?

ALBERTO A. LIM:

In the course of my investigation, I found that we received the body on October 28, 1976, from American Airlines.

ATTY. CESAR P. MANALAYSAY:

What body are you referring to?

xxx xxx xxx

ALBERTO A. LIM:

The remains of Mrs. Cristina (sic) Saludo.

ATTY. CESAR P. MANALAYSAY:

Is that the same body mentioned in this Airway Bill?

ALBERTO A. LIM:

Yes.

ATTY. CESAR P. MANALAYSAY:

What time did you receive said body on October 28, 1976?

ALBERTO A. LIM:

If I recall correctly, approximately 7:45 of October 28, 1976.

ATTY. CESAR P. MANALAYSAY:

Do you have any proof with you to back the statement?

ALBERTO A. LIM:

Yes. We have on our records a Transfer Manifest from American Airlines Number 204312 showing that we
received a human remains shipment belong to Mrs. Cristina (sic) Saludo or the human remains of Mrs. Cristina
(sic) Saludo.

ATTY. CESAR P. MAIALAYSAY:

At this juncture, may I request that the Transfer Manifest referred to by the witness be marked as an evidence as
Exhibit II-PAL.

xxx xxx xxx

Mr. Lim, yesterday your co-defendant TWA presented as their Exhibit I evidence tending to show that on October
27, 1976 at about 2:00 in the, afternoon they delivered to you a cargo bearing human remains. Could you go over
this Exhibit I and please give us your comments as to that exhibit?

ATTY. ALBERTO C. MENDOZA:

 That is a vague question. I would rather request that counsel propound specific questions rather than asking for
comments on Exhibit I-TWA.

ATTY. CESAR P. MANALAYSAY:

In that case, I will reform my question. Could you tell us whether TWA in fact delivered to you the human remains
as indicated in that Transfer Manifest?

ALBERTO A. LIM:

Yes, they did.

ATTY. CESAR P. MANALAYSAY:

I noticed that the Transfer Manifest of TWA marked as Exhibit I-TWA bears the same numbers or the same entries
as the Airway Bill marked as Exhibit I-A PAL tending to show that this is the human remains of Mrs Cristina (sic)
Saludo. Could you tell us whether this is true?

ALBERTO A. LIM:

It is true that we received human remains shipment from TWA as indicated on this Transfer Manifest. But in the
course of investigation, it was found out that the human remains transferred to us is not the remains of Mrs.
Cristina (sic) Saludo this is the reason why we did not board it on our flight. 38

Petitioners consider TWA's statement that "it had to rely on the information furnished by the shipper"
a lame excuse and that its failure to prove that its personnel verified and identified the contents of the
casket before loading the same constituted negligence on the part of TWA. 39

We upbold the favorable consideration by the Court of Appeals of the following findings of the trial
court:

It was not (to) TWA, but to C.M.A.S. that the Pomierski & Son Funeral Home
delivered the casket containing the remains of Crispina Saludo. TWA would have no
knowledge therefore that the remains of Crispina Saludo were not the ones inside the
casket that was being presented to it for shipment. TWA would have to rely on there
presentations of C.M.A.S. The casket was hermetically sealed and also sealed by the
Philippine Vice Consul in Chicago. TWA or any airline for that matter would not
have opened such a sealed casket just for the purpose of ascertaining whose body
was inside and to make sure that the remains inside were those of the particular
person indicated to be by C.M.A.S. TWA had to accept whatever information was
being furnished by the shipper or by the one presenting the casket for shipment. And
so as a matter of fact, TWA carried to San Francisco and transferred to defendant
PAL a shipment covered by or under PAL Airway Bill No. 079-ORD-01180454, the
airway bill for the shipment of the casketed remains of Crispina Saludo. Only, it
turned out later, while the casket was already with PAL, that what was inside the
casket was not the body of Crispina Saludo so much so that it had to be withdrawn by
C.M.A.S. from PAL. The body of Crispina Saludo had been shipped to Mexico. The
casket containing the remains of Crispina Saludo was transshipped from Mexico and
arrived in San Francisco the following day on board American Airlines. It was
immediately loaded by PAL on its flight for Manila.

The foregoing points at C.M.A.S., not defendant TWA much less defendant PAL, as
the ONE responsible for the switching or mix-up of the two bodies at the Chicago
 Airport terminal, and started a chain reaction of the misshipment of the body of
Crispina Saludo and a one-day delay in the delivery thereof to its destination.40

Verily, no amount of inspection by respondent airline companies could have guarded against the
switching that had already taken place. Or, granting that they could have opened the casket to inspect
its contents, private respondents had no means of ascertaining whether the body therein contained
was indeed that of Crispina Saludo except, possibly, if the body was that of a male person and such
fact was visually apparent upon opening the casket. However, to repeat, private respondents had no
authority to unseal and open the same nor did they have any reason or justification to resort thereto.

It is the right of the carrier to require good faith on the part of those persons who deliver goods to be
carried, or enter into contracts with it, and inasmuch as the freight may depend on the value of the
article to be carried, the carrier ordinarily has the right to inquire as to its value. Ordinarily, too, it is
the duty of the carrier to make inquiry as to the general nature of the articles shipped and of their
value before it consents to carry them; and its failure to do so cannot defeat the shipper's right to
recovery of the full value of the package if lost, in the absence of showing of fraud or deceit on the
part of the shipper. In the absence of more definite information, the carrier has a the right to accept
shipper's marks as to the contents of the package offered for transportation and is not bound to
inquire particularly about them in order to take advantage of a false classification and where a
shipper expressly represents the contents of a package to be of a designated character, it is not the
duty of the carrier to ask for a repetition of the statement nor disbelieve it and open the box and see
for itself. 41 However, where a common carrier has reasonable ground to suspect that the offered
goods are of a dangerous or illegal character, the carrier has the right to know the character of such
goods and to insist on an inspection, if reasonable and practical under the circumstances, as a
condition of receiving and transporting such goods.42

It can safely be said then that a common carrier is entitled to fair representation of the nature and
value of the goods to be carried, with the concomitant right to rely thereon, and further noting at this
juncture that a carrier has no obligation to inquire into the correctness or sufficiency of such
information. 43 The consequent duty to conduct an inspection thereof arises in the event that there
should be reason to doubt the veracity of such representations. Therefore, to be subjected to unusual
search, other than the routinary inspection procedure customarily undertaken, there must exist proof
that would justify cause for apprehension that the baggage is dangerous as to warrant exhaustive
inspection, or even refusal to accept carriage of the same; and it is the failure of the carrier to act
accordingly in the face of such proof that constitutes the basis of the common carrier's liability. 44

In the case at bar, private respondents had no reason whatsoever to doubt the truth of the shipper's
representations. The airway bill expressly providing that "carrier certifies goods received below were
received for carriage," and that the cargo contained "casketed human remains of Crispina Saludo,"
was issued on the basis of such representations. The reliance thereon by private respondents was
reasonable and, for so doing, they cannot be said to have acted negligently. Likewise, no evidence
was adduced to suggest even an iota of suspicion that the cargo presented for transportation was
anything other than what it was declared to be, as would require more than routine inspection or call
for the carrier to insist that the same be opened for scrutiny of its contents per declaration.

Neither can private respondents be held accountable on the basis of petitioners' preposterous
proposition that whoever brought the cargo to the airport or loaded it on the airplane did so as agent
of private respondents, so that even if CMAS whose services were engaged for the transit
arrangements for the remains was indeed at fault, the liability therefor would supposedly still be
attributable to private respondents.

While we agree that the actual participation of CMAS has been sufficiently and correctly established,
to hold that it acted as agent for private respondents would be both an inaccurate appraisal and an
unwarranted categorization of the legal position it held in the entire transaction.

It bears repeating that CMAS was hired to handle all the necessary shipping arrangements for the
transportation of the human remains of Crispina Saludo to Manila. Hence, it was to CMAS that the
Pomierski & Son Funeral Home, as shipper, brought the remains of petitioners' mother for shipment,
with Maria Saludo as consignee. Thereafter, CMAS booked the shipment with PAL through the
carrier's agent, Air Care International. 45 With its aforestated functions, CMAS may accordingly be
classified as a forwarder which, by accepted commercial practice, is regarded as an agent of the
shipper and not of the carrier. As such, it merely contracts for the transportation of goods by carriers,
and has no interest in the freight but receives compensation from the shipper as his agent. 46

At this point, it can be categorically stated that, as culled from the findings of both the trial court and
appellate courts, the entire chain of events which culminated in the present controversy was not due
to the fault or negligence of private respondents. Rather, the facts of the case would point to CMAS
as the culprit. Equally telling of the more likely possibility of CMAS' liability is petitioners' letter to
and demanding an explanation from CMAS regarding the statement of private respondents laying the
blame on CMAS for the incident, portions of which, reading as follows:

. . . we were informed that the unfortunate a mix-up occurred due to your negligence.
...

Likewise, the two airlines pinpoint the responsibility upon your agents. Evidence
were presented to prove that allegation.

On the face of this overwhelming evidence we could and should have filed a case
against you. . . . 47

clearly allude to CMAS as the party at fault. This is tantamount to an admission by petitioners that
they consider private respondents without fault, or is at the very least indicative of the fact that
petitioners entertained serious doubts as to whether herein private respondents were responsible for
the unfortunate turn of events.

Undeniably, petitioners' grief over the death of their mother was aggravated by the unnecessary
inconvenience and anxiety that attended their efforts to bring her body home for a decent burial. This
is unfortunate and calls for sincere commiseration with petitioners. But, much as we would like to
give them consolation for their undeserved distress, we are barred by the inequity of allowing
recovery of the damages prayed for by them at the expense of private respondents whose fault or
negligence in the very acts imputed to them has not been convincingly and legally demonstrated.

Neither are we prepared to delve into, much less definitively rule on, the possible liability of CMAS
as the evaluation and adjudication of the same is not what is presently at issue here and is best
deferred to another time and addressed to another forum.
II. Petitioners further fault the Court of Appeals for ruling that there was no contractual breach on the
part of private respondents as would entitle petitioners to damages.

Petitioners hold that respondent TWA, by agreeing to transport the remains of petitioners' mother on
its Flight 131 from Chicago to San Francisco on October 27, 1976, made itself a party to the contract
of carriage and, therefore, was bound by the terms of the issued airway bill. When TWA undertook
to ship the remains on its Flight 603, ten hours earlier than scheduled, it supposedly violated the
express agreement embodied in the airway bill. It was allegedly this breach of obligation which
compounded, if not directly caused, the switching of the caskets.

In addition, petitioners maintain that since there is no evidence as to who placed the body on board
Flight 603, or that CMAS actually put the cargo on that flight, or that the two caskets at the Chicago
airport were to be transported by the same airline, or that they came from the same funeral home, or
that both caskets were received by CMAS, then the employees or agents of TWA presumably caused
the mix-up by loading the wrong casket on the plane. For said error, they contend, TWA must
necessarily be presumed negligent and this presumption of negligence stands undisturbed unless
rebutting evidence is presented to show that the switching or misdelivery was due to circumstances
that would exempt the carrier from liability.

Private respondent TWA professes otherwise. Having duly delivered or transferred the cargo to its
co-respondent PAL on October 27, 1976 at 2:00 P.M., as supported by the TWA Transfer Manifest,
TWA faithfully complied with its obligation under the airway bill. Said faithful compliance was not
affected by the fact that the remains were shipped on an earlier flight as there was no fixed time for
completion of carriage stipulated on. Moreover, the carrier did not undertake to carry the cargo
aboard any specified aircraft, in view of the condition on the back of the airway bill which provides:

CONDITIONS OF CONTRACT

xxx xxx xxx

It is agreed that no time is fixed for the completion of carriage hereunder and that
Carrier may without notice substitute alternate carriers or aircraft. Carrier assumes no
obligation to carry the goods by any specified aircraft or over any particular route or
routes or to make connection at any point according to any particular schedule, and
Carrier is hereby authorized to select, or deviate from the route or routes of shipment,
notwithstanding that the same may be stated on the face hereof. The shipper
guarantees payment of all charges and advances.48

Hence, when respondent TWA shipped the body on earlier flight and on a different aircraft, it was
acting well within its rights. We find this argument tenable.

The contention that there was contractual breach on the part of private respondents is founded on the
postulation that there was ambiguity in the terms of the airway bill, hence petitioners' insistence on
the application of the rules on interpretation of contracts and documents. We find no such ambiguity.
The terms are clear enough as to preclude the necessity to probe beyond the apparent intendment of
the contractual provisions.
The hornbook rule on interpretation of contracts consecrates the primacy of the intention of the
parties, the same having the force of law between them. When the terms of the agreement are clear
and explicit, that they do not justify an attempt to read into any alleged intention of the parties, the
terms are to be understood literally just as they appear on the face of the contract.49 The various
stipulations of a contract shall be interpreted together50 and such a construction is to be adopted as
will give effect to all provisions thereof.51 A contract cannot be construed by parts, but its clauses
should be interpreted in relation to one another. The whole contract must be interpreted or read
together in order to arrive at its true meaning. Certain stipulations cannot be segregated and then
made to control; neither do particular words or phrases necessarily determine the character of a
contract. The legal effect of the contract is not to be determined alone by any particular provision
disconnected from all others, but in the ruling intention of the parties as gathered from all the
language they have used and from their contemporaneous and subsequent acts. 52

Turning to the terms of the contract at hand, as presented by PAL Air Waybill No. 079-01180454,
respondent court approvingly quoted the trial court's disquisition on the aforequoted condition
appearing on the reverse side of the airway bill and its disposition of this particular assigned error:

The foregoing stipulation fully answers plaintiffs' objections to the one-day delay and
the shipping of the remains in TWA Flight 603 instead of TWA Flight 131. Under the
stipulation, parties agreed that no time was fixed to complete the contract of carriage
and that the carrier may, without notice, substitute alternate carriers or aircraft. The
carrier did not assume the obligation to carry the shipment on any specified aircraft.

xxx xxx xxx

Furthermore, contrary to the claim of plaintiffs-appellants, the conditions of the Air

Waybill are big enough to be read and noticed. Also, the mere fact that the cargo in
question was shipped in TWA Flight 603, a flight earlier on the same day than TWA
Flight 131, did not in any way cause or add to the one-day delay complained of
and/or the switching or mix-up of the bodies.53

Indubitably, that private respondent can use substitute aircraft even without notice and without the
assumption of any obligation whatsoever to carry the goods on any specified aircraft is clearly
sanctioned by the contract of carriage as specifically provided for under the conditions thereof.

Petitioners' invocation of the interpretative rule in the Rules of Court that written words control
printed words in documents, 54 to bolster their assertion that the typewritten provisions regarding the
routing and flight schedule prevail over the printed conditions, is tenuous. Said rule may be
considered only when there is inconsistency between the written and printed words of the contract.

As previously stated, we find no ambiguity in the contract subject of this case that would call for the
application of said rule. In any event, the contract has provided for such a situation by explicitly
stating that the above condition remains effective "notwithstanding that the same (fixed time for
completion of carriage, specified aircraft, or any particular route or schedule) may be stated on the
face hereof." While petitioners hinge private respondents' culpability on the fact that the carrier
"certifies goods described below were received for carriage," they may have overlooked that the
statement on the face of the airway bill properly and completely reads —
 Carrier certifies goods described below were received for carriage subject to the
Conditions on the reverse hereof the goods then being in apparent good order and
condition except as noted hereon. 55(Emphasis ours.)

Private respondents further aptly observe that the carrier's certification regarding receipt of the goods
for carriage "was of a smaller print than the condition of the Air Waybill, including Condition No. 5
— and thus if plaintiffs-appellants had recognized the former, then with more reason they were
aware of the latter. 56

In the same vein, it would also be incorrect to accede to the suggestion of petitioners that the
typewritten specifications of the flight, routes and dates of departures and arrivals on the face of the
airway bill constitute a special contract which modifies the printed conditions at the back thereof. We
reiterate that typewritten provisions of the contract are to be read and understood subject to and in
view of the printed conditions, fully reconciling and giving effect to the manifest intention of the
parties to the agreement.

The oft-repeated rule regarding a carrier's liability for delay is that in the absence of a special
contract, a carrier is not an insurer against delay in transportation of goods. When a common carrier
undertakes to convey goods, the law implies a contract that they shall be delivered at destination
within a reasonable time, in the absence, of any agreement as to the time of delivery. 57 But where a
carrier has made an express contract to transport and deliver property within a specified time, it is
bound to fulfill its contract and is liable for any delay, no matter from what cause it may have
arisen. 58 This result logically follows from the well-settled rule that where the law creates a duty or
charge, and the party is disabled from performing it without any default in himself, and has no
remedy over, then the law will excuse him, but where the party by his own contract creates a duty or
charge upon himself, he is bound to make it good notwithstanding any accident or delay by inevitable
necessity because he might have provided against it by contract. Whether or not there has been such
an undertaking on the part of the carrier to be determined from the circumstances surrounding the
case and by application of the ordinary rules for the interpretation of contracts.59

Echoing the findings of the trial court, the respondent court correctly declared that —

In a similar case of delayed delivery of air cargo under a very similar stipulation
contained in the airway bill which reads: "The carrier does not obligate itself to carry
the goods by any specified aircraft or on a specified time. Said carrier being hereby
authorized to deviate from the route of the shipment without any liability therefor",
our Supreme Court ruled that common carriers are not obligated by law to carry and
to deliver merchandise, and persons are not vested with the right to prompt delivery,
unless such common carriers previously assume the obligation. Said rights and
obligations are created by a specific contract entered into by the parties (Mendoza vs.
PAL, 90 Phil. 836).

There is no showing by plaintiffs that such a special or specific contract had been
entered into between them and the defendant airline companies.

And this special contract for prompt delivery should call the attention of the carrier to
the circumstances surrounding the case and the approximate amount of damages to be
 suffered in case of delay (See Mendoza vs. PAL, supra). There was no such contract
entered into in the instant case.60

Also, the theory of petitioners that the specification of the flights and dates of departure and arrivals
constitute a special contract that could prevail over the printed stipulations at the back of the airway
bill is vacuous. To countenance such a postulate would unduly burden the common carrier for that
would have the effect of unilaterally transforming every single bill of lading or trip ticket into a
special contract by the simple expedient of filling it up with the particulars of the flight, trip or
voyage, and thereby imposing upon the carrier duties and/or obligations which it may not have been
ready or willing to assume had it been timely, advised thereof.

Neither does the fact that the challenged condition No. 5 was printed at the back of the airway bill
militate against its binding effect on petitioners as parties to the contract, for there were sufficient
indications on the face of said bill that would alert them to the presence of such additional condition
to put them on their guard. Ordinary prudence on the part of any person entering or contemplating to
enter into a contract would prompt even a cursory examination of any such conditions, terms and/or
stipulations.

There is a holding in most jurisdictions that the acceptance of a bill of lading without dissent raises a
presumption that all terms therein were brought to the knowledge of the shipper and agreed to by
him, and in the absence of fraud or mistake, he is estopped from thereafter denying that he assented
to such terms. This rule applies with particular force where a shipper accepts a bill of lading with full
knowledge of its contents, and acceptance under such circumstances makes it a binding contract. In
order that any presumption of assent to a stipulation in a bill of lading limiting the liability of a
carrier may arise, it must appear that the clause containing this exemption from liability plainly
formed a part of the contract contained in the bill of lading. A stipulation printed on the back of a
receipt or bill of lading or on papers attached to such receipt will be quite as effective as if printed on
its face, if it is shown that the consignor knew of its terms. Thus, where a shipper accepts a receipt
which states that its conditions are to be found on the back, such receipt comes within the general
rule, and the shipper is held to have accepted and to be bound by the conditions there to be found. 61

Granting arguendo that Condition No. 5 partakes of the nature of a contract of adhesion and as such
must be construed strictly against the party who drafted the same or gave rise to any ambiguity
therein, it should be borne in mind that a contract of adhesion may be struck down as void and
unenforceable, for being subversive of public policy, only when the weaker party is imposed upon in
dealing with the dominant bargaining party and is reduced to the alternative of taking it or leaving it,
completely deprived of the opportunity to bargain on equal footing. 62However, Ong Yiu vs. Court of
Appeals, et al 63 instructs us that contracts of adhesion are not entirely prohibited. The one who
adheres to the contract is in reality free to reject it entirely; if he adheres, be gives his consent.
Accordingly, petitioners, far from being the weaker party in this situation, duly signified their
presumed assent to all terms of the contract through their acceptance of the airway bill and are
consequently bound thereby. It cannot be gainsaid that petitioners' were not without several choices
as to carriers in Chicago with its numerous airways and airliner servicing the same.

We wish to allay petitioners' apprehension that Condition No. 5 of the airway bill is productive of
mischief as it would validate delay in delivery, sanction violations of contractual obligations with
impunity or put a premium on breaches of contract.
Just because we have said that condition No. 5 of the airway bill is binding upon the parties to and
fully operative in this transaction, it does not mean, and let this serve as fair warning to respondent
carriers, that they can at all times whimsically seek refuge from liability in the exculpatory sanctuary
of said Condition No. 5 or arbitrarily vary routes, flights and schedules to the prejudice of their
customers. This condition only serves to insulate the carrier from liability in those instances when
changes in routes, flights and schedules are clearly justified by the peculiar circumstances of a
particular case, or by general transportation practices, customs and usages, or by contingencies or
emergencies in aviation such as weather turbulence, mechanical failure, requirements of national
security and the like. And even as it is conceded that specific routing and other navigational
arrangements for a trip, flight or voyage, or variations therein, generally lie within the discretion of
the carrier in the absence of specific routing instructions or directions by the shipper, it is plainly
incumbent upon the carrier to exercise its rights with due deference to the rights, interests and
convenience of its customers.

A common carrier undertaking to transport property has the implicit duty to carry and deliver it
within reasonable time, absent any particular stipulation regarding time of delivery, and to guard
against delay. In case of any unreasonable delay, the carrier shall be liable for damages immediately
and proximately resulting from such neglect of duty. 64 As found by the trial court, the delay in the
delivery of the remains of Crispina Saludo, undeniable and regrettable as it was, cannot be attributed
to the fault, negligence or malice of private respondents,65 a conclusion concurred in by respondent
court and which we are not inclined to disturb.

We are further convinced that when TWA opted to ship the remains of Crispina Saludo on an earlier
flight, it did so in the exercise of sound discretion and with reasonable prudence, as shown by the
explanation of its counsel in his letter of February 19, 1977 in response to petitioners' demand letter:

Investigation of TWA's handling of this matter reveals that although the shipment
was scheduled on TWA Flight 131 of October 27, 1976, it was actually boarded on
TWA Flight 603 of the same day, approximately 10 hours earlier, in order to assure
that the shipment would be received in San Francisco in sufficient time for transfer to
PAL. This transfer was effected in San Francisco at 2:00 P.M. on October 27,
1976. 66

Precisely, private respondent TWA knew of the urgency of the shipment by reason of this notation on
the lower portion of the airway bill: "All documents have been certified. Human remains of Cristina
(sic) Saludo. Please return bag first available flight to SFO." Accordingly, TWA took it upon itself to
carry the remains of Crispina Saludo on an earlier flight, which we emphasize it could do under the
terms of the airway bill, to make sure that there would be enough time for loading said remains on
the transfer flight on board PAL.

III. Petitioners challenge the validity of respondent court's finding that private respondents are not
liable for tort on account of the humiliating, arrogant and indifferent acts of their officers and
personnel. They posit that since their mother's remains were transported ten hours earlier than
originally scheduled, there was no reason for private respondents' personnel to disclaim knowledge
of the arrival or whereabouts of the same other than their sheer arrogance, indifference and extreme
insensitivity to the feelings of petitioners. Moreover, being passengers and not merely consignors of
goods, petitioners had the right to be treated with courtesy, respect, kindness and due consideration.
In riposte, TWA claims that its employees have always dealt politely with all clients, customers and
the public in general. PAL, on the other hand, declares that in the performance of its obligation to the
riding public, other customers and clients, it has always acted with justice, honesty, courtesy and
good faith.

Respondent appellate court found merit in and reproduced the trial court's refutation of this assigned
error:

About the only evidence of plaintiffs that may have reference to the manner with
which the personnel of defendants treated the two plaintiffs at the San Francisco
Airport are the following pertinent portions of Maria Saludo's testimony:

Q When you arrived there, what did you do, if any?

A I immediately went to the TWA counter and I inquired about whether my mother was there or if' they knew
anything about it.

Q What was the answer?

A They said they do not know. So, we waited.

Q About what time was that when you reached San Francisco from Chicago?

A I think 5 o'clock. Somewhere around that in the afternoon.

Q You made inquiry it was immediately thereafter?

A Right after we got off the plane.

Q Up to what time did you stay in the airport to wait until the TWA people could tell you the whereabouts?

A Sorry, Sir, but the TWA did not tell us anything. We stayed there until about 9 o'clock. They have not heard
anything about it. They did not say anything.

Q Do you want to convey to the Court that from 5 up to 9 o'clock in the evening you yourself went back to the
TWA and they could not tell you where the remains of your mother were?

A Yes sir.

Q And after nine o'clock, what did you do?

A I told my brother my Mom was supposed to be on the Philippine Airlines flight. "Why don't" we check with
PAL instead to see if she was there?" We tried to comfort each other. I told him anyway that was a shortest flight
from Chicago to California. We will be with our mother on this longer flight. So, we checked with the PAL.

Q What did you find?

A We learned, Yes, my Mom would be on the flight.

Q Who was that brother?

A Saturnino Saludo.

Q And did you find what was your flight from San Francisco to the Philippines?

A I do not know the number. It was the evening flight of the Philippine Airline(s) from San Francisco to Manila.
 Q You took that flight with your mother?

A We were scheduled to, Sir.

Q Now, you could not locate the remains of your mother in San Francisco could you tell us what did you feel?

A After we were told that my mother was not there?

Q After you learned that your mother could not fly with you from Chicago to California?

A Well, I was very upset. Of course, I wanted the confirmation that my mother was in the West Coast. The fliqht
was about 5 hours from Chicago to California. We waited anxiously all that time on the plane. I wanted to be
assured about my mother's remains. But there was nothing and we could not get any assurance from anyone about
it.

Q Your feeling when you reached San Francisco and you could not find out from the TWA the whereabouts of the
remains, what did you feel?

A Something nobody would be able to describe unless he experiences it himself. It is a kind of panic. I think it's a
feeling you are about to go crazy. It is something I do not want to live through again. (Inting, t.s.n., Aug. 9, 1983,
pp. 14-18).

The foregoing does not show any humiliating or arrogant manner with which the
personnel of both defendants treated the two plaintiffs. Even their alleged
indifference is not clearly established. The initial answer of the TWA personnel at the
counter that they did not know anything about the remains, and later, their answer
that they have not heard anything about the remains, and the inability of the TWA
counter personnel to inform the two plaintiffs of the whereabouts of the remains,
cannot be said to be total or complete indifference to the said plaintiffs. At any rate, it
is any rude or discourteous conduct, malfeasance or neglect, the use of abusive or
insulting language calculated to humiliate and shame passenger or had faith by or on
the part of the employees of the carrier that gives the passenger an action for damages
against the carrier (Zulueta vs. Pan American World Airways, 43 SCRA 397; Air
France vs. Carrascoso, et al., 18 SCRA 155; Lopez, et al. vs. Pan American World
Airways, 16 SCRA 431; Northwest Airlines, Inc. vs. Cuenca, 14 SCRA 1063), and
none of the above is obtaining in the instant case. 67

We stand by respondent court's findings on this point, but only to the extent where it holds that the
manner in which private respondent TWA's employees dealt with petitioners was not grossly
humiliating, arrogant or indifferent as would assume the proportions of malice or bad faith and lay
the basis for an award of the damages claimed. It must however, be pointed out that the lamentable
actuations of respondent TWA's employees leave much to be desired, particularly so in the face of
petitioners' grief over the death of their mother, exacerbated by the tension and anxiety wrought by
the impasse and confusion over the failure to ascertain over an appreciable period of time what
happened to her remains.

Airline companies are hereby sternly admonished that it is their duty not only to cursorily instruct but
to strictly require their personnel to be more accommodating towards customers, passengers and the
general public. After all, common carriers such as airline companies are in the business of rendering
public service, which is the primary reason for their enfranchisement and recognition in our law.
Because the passengers in a contract of carriage do not contract merely for transportation, they have a
right to be treated with kindness, respect, courtesy and consideration. 68 A contract to transport
passengers is quite different in kind and degree from any other contractual relation, and generates a
relation attended with public duty. The operation of a common carrier is a business affected with
public interest and must be directed to serve the comfort and convenience of
passengers. 69 Passengers are human beings with human feelings and emotions; they should not be
treated as mere numbers or statistics for revenue.

The records reveal that petitioners, particularly Maria and Saturnino Saludo, agonized for nearly five
hours, over the possibility of losing their mother's mortal remains, unattended to and without any
assurance from the employees of TWA that they were doing anything about the situation. This is not
to say that petitioners were to be regaled with extra special attention. They were, however, entitled to
the understanding and humane consideration called for by and commensurate with the extraordinary
diligence required of common carriers, and not the cold insensitivity to their predicament. It is hard
to believe that the airline's counter personnel were totally helpless about the situation. Common sense
would and should have dictated that they exert a little extra effort in making a more extensive
inquiry, by themselves or through their superiors, rather than just shrug off the problem with a
callous and uncaring remark that they had no knowledge about it. With all the modern
communications equipment readily available to them, which could have easily facilitated said inquiry
and which are used as a matter of course by airline companies in their daily operations, their
apathetic stance while not legally reprehensible is morally deplorable.

Losing a loved one, especially one's, parent, is a painful experience. Our culture accords the tenderest
human feelings toward and in reverence to the dead. That the remains of the deceased were
subsequently delivered, albeit belatedly, and eventually laid in her final resting place is of little
consolation. The imperviousness displayed by the airline's personnel, even for just that fraction of
time, was especially condemnable particularly in the hour of bereavement of the family of Crispina
Saludo, intensified by anguish due to the uncertainty of the whereabouts of their mother's remains.
Hence, it is quite apparent that private respondents' personnel were remiss in the observance of that
genuine human concern and professional attentiveness required and expected of them.

The foregoing observations, however, do not appear to be applicable or imputable to respondent PAL
or its employees. No attribution of discourtesy or indifference has been made against PAL by
petitioners and, in fact, petitioner Maria Saludo testified that it was to PAL that they repaired after
failing to receive proper attention from TWA. It was from PAL that they received confirmation that
their mother's remains would be on the same flight to Manila with them.

We find the following substantiation on this particular episode from the deposition of Alberto A.
Lim, PAL's cargo supervisor earlier adverted to, regarding their investigation of and the action taken
on learning of petitioner's problem:

ATTY. ALBERTO C. MENDOZA:

Yes.

Mr. Lim, what exactly was your procedure adopted in your so called investigation?

ALBERTO A. LIM:

I called the lead agent on duty at that time and requested for a copy of airway bill, transfer manifest and other
documents concerning the shipment.

ATTY ALBERTO C. MENDOZA:

 Then, what?

ALBERTO A. LIM:

They proceeded to analyze exactly where PAL failed, if any, in forwarding the human remains of Mrs. Cristina
(sic) Saludo. And I found out that there was not (sic) delay in shipping the remains of Mrs. Saludo to Manila. Since
we received the body from American Airlines on 28 October at 7:45 and we expedited the shipment so that it could
have been loaded on our flight leaving at 9:00 in the evening or just barely one hour and 15 minutes prior to the
departure of the aircraft. That is so (sic) being the case, I reported to Manila these circumstances. 70

IV. Finally, petitioners insist, as a consequence of the delay in the shipment of their mother's remains
allegedly caused by wilful contractual breach, on their entitlement to actual, moral and exemplary
damages as well as attorney's fees, litigation expenses, and legal interest.

The uniform decisional tenet in our jurisdiction bolds that moral damages may be awarded for wilful
or fraudulent breach of contract 71 or when such breach is attended by malice or bad
faith. 72 However, in the absence of strong and positive evidence of fraud, malice or bad faith, said
damages cannot be awarded.73 Neither can there be an award of exemplary damages 74 nor of
attorney's fees 75 as an item of damages in the absence of proof that defendant acted with malice,
fraud or bad faith.

The censurable conduct of TWA's employees cannot, however, be said to have approximated the
dimensions of fraud, malice or bad faith. It can be said to be more of a lethargic reaction produced
and engrained in some people by the mechanically routine nature of their work and a racial or
societal culture which stultifies what would have been their accustomed human response to a human
need under a former and different ambience.

Nonetheless, the facts show that petitioners' right to be treated with due courtesy in accordance with
the degree of diligence required by law to be exercised by every common carrier was violated by
TWA and this entitles them, at least, to nominal damages from TWA alone. Articles 2221 and 2222
of the Civil Code make it clear that nominal damages are not intended for indemnification of loss
suffered but for the vindication or recognition of a right violated of invaded. They are recoverable
where some injury has been done but the amount of which the evidence fails to show, the assessment
of damages being left to the discretion of the court according to the circumstances of the case. 76 In
the exercise of our discretion, we find an award of P40,000.00 as nominal damages in favor of,
petitioners to be a reasonable amount under the circumstances of this case.

WHEREFORE, with the modification that an award of P40,000.00 as and by way of nominal
damages is hereby granted in favor of petitioners to be paid by respondent Trans World Airlines, the
appealed decision is AFFIRMED in all other respects.