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TAN CHIONG SIAN v. INCHAUSTI & CO. [1912] III.

RATIONALE

[Torres, J.] It was not stipulated in the contract that the Sorsogon
should convey the goods to their final destination, nor that
I. FACTS the vessel into which they were to be transshipped, should
be a steamer. The shipper, Ong Bieng Sip, therefore
On Nov 25, 1908, Ong Bien Sip delivered to Inchausti & assented to these arrangements and made no protest
Co. 205 bundles of merchandise for delivery to plaintiff when his 205 packages of merchandise were unloaded
Tan Chiong Sian in Catarman, Samar. Ong Bien Sip was from the ship and stored in the warehouses at Gubat, nor
to pay Php 250 upon delivery of the merchandise to did he offer any objection to the lading of his merchandise
Catarman, Samar. (However, according to plaintiff’s on to this lorcha as soon as it arrived and was prepared
version, it was Tan Chiong Sian who contracted with to receive cargo. Moreover, Ong Bien Sip knew that to
Inchausti for delivery of merchandise to Ong Bien Sip.) reach the port of Catarman with promptness and dispatch,
The cases of merchandise were placed on board the the lorcha had to be towed by some vessel like the launch
steamer Sorsogon for shipment to Gubat, Sorsogon, to be Texas, which Inchausti had been steadily using for similar
transshipped into another vessel (lorcha1 Pilar also owned operations in those waters.
by Inchausti) for transportation to Catarman, Samar. The Article 361 of the Code of Commerce provides:
steamer Sorsogon arrived at Gubat on Nov 28, 1908 but
lorcha Pilar was not at Gubat yet that time so the goods "Merchandise shall be transported at the risk and
had to be stored in Inchausti’s warehouse. On Dec 4, venture of the shipper, unless the contrary was
1908, lorcha Pilar finally arrived at Gubat and the expressly stipulated.
merchandise were taken aboard the lorcha. However,
"Therefore, all damages and impairment suffered by the
before the said lorcha could leave for its destination, a
goods in transportation, by reason of accident, force
strong wind arose which in the course of the day
majeure, or by virtue of the nature or defect of the articles,
increased in force until, early in the morning of the
shall be for the account and risk of the shipper.
following day. The lorcha was dragged and driven, by the
force of the storm, upon the shore despite the means "The proof of these accidents is incumbent on the
employed by the crew to avoid the accident, and carrier.
notwithstanding the five anchors that held the craft, which
was thus wrecked and completely destroyed and the "ART. 362. The carrier, however, shall be liable for the
merchandise with which it was laden was scattered on the losses and damages arising from the causes mentioned
shore. Because of the damage suffered by the goods, in the foregoing article if it is proved that they occurred on
Inchausti proceeded to sell them at a public auction for account of his negligence or because he did not take
Php 1693.67. Tan Chiong Sian claims that the goods the precautions usually adopted by careful persons,
would have had a value of Php 20,000. unless the shipper committed fraud in the bill of lading,
stating that the goods were of a class or quality different
Tan Chiong Sian then filed a complaint for collection of from what they really were.
money for losses and damages for Inchausti’s breach of
contract due to its failure to deliver the merchandise. The "If, notwithstanding the precaution referred to in this
lower court ruled in favor of Tan Chiong Sian. article, the goods transported run the risk of being lost on
account of the nature or by reason of an unavoidable
II. ISSUE accident, without there being time for the owners of the
same to dispose thereof, the carrier shall proceed to their
WON Inchausti must be relieved from liability on the
sale placing them for this purpose at the disposal of the
ground of force majeure.- YES

1 Lorcha is a type of sailing vessel. It is not easily managed or where it customarily travels, it can only move by poling. For this
steered when traveling, for, out at sea, it can only be moved by wind reason, in order to arrive at the pueblo of Catarman with promptness
and sails; and along the coast near the shore and in the estuaries and dispatch, the lorcha was usually towed by the launch Texas.
Judicial authority or of the officials determined by special WAS THERE DELAY?- NONE
provisions.
In the contract made and entered into by and between the
WAS THERE NEGLIGENCE? - NONE owner of the goods and the defendant, no term was fixed
within which the said merchandise should be delivered to
The patron or master of the lorcha did not receive any
the former at Catarman, nor was it proved that there was
notice of the approaching storm from the Manila any delay in loading the goods and transporting them to
Observatory on Dec 04, and the weather during that night their destination.
was not threatening. It was only on Dec 05 that he was
informed by Inchausti’s agent of the impending storm. All the foregoing considered, there was no negligence,
Thereupon, on account of the condition of the sea, he abandonment, or delay in the shipment of Ong Bieng Sip's
dropped the four anchors that the lorcha had on board and merchandise, and all that was done by the carrier,
immediately went ashore to get another anchor and a new Inchausti & Co., was what it regularly and usually did in
cable in order more securely to hold the boat in view of the transportation by sea from Manila to Catarman of all
the predicted storm. There is no port in the lorcha’s classes of merchandise. It is incontrovertible that the
immediate vicinity adequate for the shelter and refuge of stranding and wreck of the lorcha Pilar was due to a
vessels in cases of danger, and that, even though there fortuitous event or to force majeure and not to the fault
were, on being advised between 10 and 11 o'clock of the and negligence of the defendant company and its agents
morning of the 5th, of the approach of a storm from the or of the patron, Mariano Gadvilao.
eastern Pacific, it would have been impossible to spread
any sails or weigh anchor on the lorcha without being From the moment that it is held that the loss of the said
lorcha was due to force majeure, a fortuitous event, with
dragged or driven against the reefs by the force of the
wind. As the craft was not provided with steam or other no conclusive proof of negligence or of the failure to take
motive power, it would not have been possible for it to the precautions such as diligent and careful persons
change its anchorage, nor move from the place where it usually adopt to avoid the loss of the boat and its cargo, it
lay, even several hours before the notice was received by is neither just nor proper to attribute the loss or damage
its patron. of the goods in question to any fault, carelessness, or
negligence on the part of the defendant company and its
Furthermore, Sabang river, which would have been a safe agents and, especially, the patron of the lorcha Pilar.
place about half a mile from where the lorcha was
anchored does not have sufficient water in its channel. IV. DISPOSITIVE
Hence, the lorcha, when loaded, will not be able to enter Appeal by Inchausti GRANTED.
it.
V. Dissenting Opinion- Moreland, J.
The patron Gadvilao, being cognizant of the duties
imposed upon him, remained with his sailors, during the Inchausti voluntarily placed the property of the plaintiff
time the hurricane was raging, on board the lorcha from upon the kind of craft (lorcha) previously described and
the morning of December 5 until early the following dispatched to a distant port substantially the only means
morning, the 6th, without abandoning the boat, of locomotion and protection which that craft had (steam
notwithstanding the imminent peril to which he was tug Texas to which the lorcha was poled was sent by
exposed, and kept to his post until after the wreck and the Inchausti to a port several miles South of Gubat), placing
lorcha had been dashed against the rocks. By such that lorcha in waters directly exposed to the winds and
procedure, he showed that, as a patron skilled in the waves of the Pacific and at the mercy of every storm that
exercise of his vocation, he performed the duties imposed blew; and this during a season of the year when winds
by law in cases of shipwreck brought about by force were generally high and destructive storms might be
majeure. expected at any time, and with full knowledge that if a
typhoon came while the agents of the defendant were
unprepared the property of the plaintiff would in all
probability be lost.
An act of God cannot be urged for the protection of a
person who has been guilty of gross negligence in not
trying to avert its results. One who has accepted
responsibility for pay cannot weakly fold his hands and
say that he was prevented from meeting that
responsibility by an act of God, when the exercise of
ordinary care end prudence would have averted the
results flowing from that act. One who has placed the
property of another, instructed to his care, in an
unseaworthy craft, upon dangerous waters, cannot
absolve himself by crying, "an act of God," when every
effect which a typhoon produced upon that property could
have been avoided by the exercise of common care and
prudence. When the negligence of the carrier concurs
with an act of God in producing a loss, the carrier is not
exempted from liability by showing that the immediate
cause of the damage was the act of God; or, as it has
been expressed, "when the loss is caused by the act of
God, if the negligence of the carrier mingles with it as an
active and cooperative cause, he is still liable."