c



 


 
c
c


 !

"#$
Plaintiff, Civil Case No. 2011

-versus- For: Sum of Money and Damages

%"
#$
Defendants.

x------------------------------------------------------------------------
-x

% & c

%
&
% c%
' (  $%(
c%

COMES NOW the defendant, Philippine Airlines, through the

undersigned counsels in the above-entitled case and to this Honorable

Court most respectfully alleges:

O ? Defendant is a corporation duly organized and existing under

the Philippine laws with a principal office at 435 Arnaiz

St.,Pasay City and that it sends cargoes to and from

Switzerland.

j ? Defendant admits the cargo consisting of two large boxes of

lighting fixtures was loaded from Switzerland to be transported

to the Philippines;

ÿ ? Defendant PHILIPPINE AIRLINES admits that it certified that it

received the cargo in good condition when the cargo consisting

 of two large boxes of lighting fixtures was loaded on the

plane;

è ? Defendant admits that when its plane carrying the cargo

consisting of two large boxes of lighting fixtures arrived in

the Philippines on 24 July 2010, in NAIA 3, it was released to

defendant CARGADOR MACHO INC., one of the accredited cargo

handlers for cargo transported from foreign countries into the

Philippines.

 ? Defendant specifically denies sub-paragraph 4.2. Defendant

does not have sufficient knowledge or information to form a

belief as to the truth or falsity of the allegation that

Diamond Luxury Hotel paid the cargo insurance premiums to

Plaintiff for the declared value of the shipment of Two Million

Pesos (Php2,000,000.00).

‰ ? Defendant admits it received the corresponding report of the

defect but deny the truth of its;

  ? Defendant admits that we were called by Cargador macho when the

box with the dent was opened, the cargo contained therein was

totally damaged;

· ? Defendant specifically denies the allegation that the damage

occurred while the defendant PHILIPPINE AIRLINES had custody of

the cargo, the truth being«. and failed to discharge the same

or, alternately, after discharge of the cargo, while defendant

CARGADOR MACHO INC. had custody of the cargo of two boxes with

lighting fixtures, in either of which case there was a

violation of the duty properly to safely carry and discharge

the goods on the part of the defendant PHILIPPINE AIRLINES or,

 in the alternative, to make delivery of the goods on the part

of defendant CARGADOR MACHO INC.

å ? As to paragraph 19, Defendant specifically denies the

allegations contained therein. The truth being, the Defendant

exercised extraordinary diligence and vigilance required by law

to prevent any damage/loss to any cargo.

By way of special and affirmative defenses, the defendant avers:

1.?The plaintiff has no cause of action because of «.. Plaintiff¶s

reliance on Article 2207 of the Civil Code is unfounded.

Plaintiff cannot be subrogated with the rights, if any, of

Diamond Luxury Hotel against the Defendant by operation of law

(defendant is not privy to the contract between Diamond Luxury

Hotel and the plaintiff) but by an express positive act of

assignment which Diamond Luxury Hotel did not undertake.

2.?Limited liability of Common Carrier. Assuming for the sake of

argument that.. Art 1749 of the Civil Code states that:

%# )*+# % "   ,, -"

.!",/0"

.0$"""1"

/$".#

The absence of the consignee¶s «. of the Bill of Lading would

defeat the claim of the plaintiff of the value of the goods since

the law clearly stipulates that ³ ,, -" .! "

,/0".0#2

3.?No presumption of negligence. Plaintiff has failed to plead

sufficient facts to establish a right to recover under Article

 1735. Article 1734 of the New Civil Code of the Philippines

establishes the general rule that common carriers are responsible

for the loss, destruction or deterioration of the goods which

they carry, "unless the same is due to any of the following

causes only:

x x x x

(4) The character-of the goods or defects in the packing or-in

the containers; and

x x x x

The Defendant is exempted from liability under Article 1734

because the proximate cause of the damage supposedly sustained

by the lighting fixture was due to the to the inherent nature,

vice or defect of the goods, or to perils, danger and accidents

of the sea, or to insufficiency of packing thereof, or to the

act or omission of the shipper of the goods or their

representatives.

4.?The defendant hereby states that it did all the necessary

precautions and measures to protect and insure the safety of its

cargoes. Defendant concludes that the dent that was found in one

of the boxes that was unloaded from the plane was due to the poor

quality of the packaging that was made by the Cargador Macho,

Inc., and not due to the negligent of the herein defendant.

5.?The defendant being well known in the business for a long time,

it has trained its employees carefully and equipped them with

proper knowledge as to how the cargoes are supposed to be

transported safe and sound. The cargoes are well placed in the

plane in such a way that cargoes don¶t bump each other and that

each and every cargo is strapped to the plane floor so no damage

can occur upon it even if turbulence occurs while in transit.

 ‰.?The defendant was not negligent and exercised the required

extraordinary diligence as a common carrier as evidenced by the

fact that among all the cargoes loaded to the plane, only the

specific cargo, herein subject matter, was the only allegedly

damaged. No other claim of damage was reported to the defendant.

7.?The defendant did not act with malice, and in a wanton,

fraudulent, reckless and malevolent manner. Defendant did not

right away refuse nor ignored the demands of the plaintiff in its

letters. Defendant only wants a clear and thorough investigation

of the case.

8.?Improper Certification Against Forum Shopping. The Complaint

must be rejected for failure of the Plaintiff to comply with the

express requirement of Section 5, Rule 7 of the Rules of Court

for the Plaintiff to undertake that he has not thereto commenced

any action or filed any claim involving the same issues in any

court, tribunal or quasi-judicial agency and, to the best of his

knowledge, no such action or claim is pending therein. The Rule

provides that failure to comply with the foregoing requirements

shall be cause for the dismissal of the case.

9.?The total damages that the plaintiff prayed for is

unconscionable. Proof of such lost should be first shown to the

defendant.

By way of counterclaim, defendant alleges:

1.? That by virtue of this unwarranted and malicious act initiated by

the plaintiff, the defendant was forced to engage the services of

 counsel in the sum of Three Hundred Thousand Pesos (P300,000) by

way of Attorney¶s fees and litigation expenses;

2.? That an award for damages be granted to the defendant amounting to

Three Hundred Thousand Pesos (Php 300,000) for inconvenience caused

by this complaint;

3.? That an award for moral damages amounting to One Million Pesos (Php

1,000,000.00) be granted to defendant for wantonly and capriciously

accusing and tarnishing the name of the flag carrier of the

Philippines of being negligent without proof of the foregoing;

4.? That an award for exemplary damages of P300,000 be granted for all

the inconvenience that it brought to the company of the defendant;

c%3 c

WHEREFORE, considering the foregoing, Defendant prays for judgment

or relief against the Plaintiffs as follows:

O? That the Complaint against Defendant be dismissed with

prejudice;

j? That the Defendant be awarded exemplary damages, moral

damages, attorneys' fees, costs and expenses of

litigation;

ÿ? Such other equitable reliefs and damages, as this Court

deems just and proper.

Makati City, 15 January 2011.

Respectfully submitted:

 (3#%3%%


 
% %


c 3

4%




 % (  5%(
 ? ????
?
? 


3rd Floor, National Bank Center

777 Ayala Avenue, Makati City

Telephone No. 888-8888

Fax No. 888-8887

Email Address: lawfirm@gmail.com

PTR#12345‰7; 01-05-2010;

Makati City

IBP#12345‰; 01-04-2010;

Makati City

Roll of Attorneys No. 88888

MCLE Compliance No. (Admitted to the

Bar in 2009)

Republic of the Philippines)

City of Makati ) SS.

' c %
%(

 c
 %
 5 c 

6

I, WILLIAM DELA CRUZ, of legal age, Filipino, with office address at

435 Arnaiz St., Pasay City, being duly sworn in accordance with law,
depose and state:

1. I am the General Manager of Philippine Airlines, in that

official capacity, I am authorized under Philippine Airlines Board
Resolution No. 77 dated January 10, 2008 to sign this Verification and
Certification Against Forum Shopping. A copy of the said Board Resolution
is attached as Annex A ;

2. In my capacity as such, I have caused the preparation of the

foregoing % & c filed with this Honorable Court;

3. I have read and understood the contents of this pleading and

that the same are true and correct of my own knowledge;

4. That I have not commenced any action of proceeding involving the

same issue in the Supreme Court, the Court of Appeals or any other
tribunal or agency; that to the best of my knowledge, no such action or
proceeding is pending in the Supreme Court, the Court of Appeals or any
tribunal or agency, and that, if I should learn thereafter that a similar
action or proceeding has been filed or is pending before these courts of
tribunal or agency, I undertake to report that the fact to the Court
within five (5) days therefrom.

IN WITNESS HEREOF, I have hereunto affixed my hand this __ day of

_____ 2010 at Pasay City.

WILLIAM DELA CRUZ

Affiant

SUBSCRIBED AND SWORN to before me at Pasay City, Philippines this __

day of ______ 2010.

Notary Public

COPY FURNISHED:

YSAAC and Associates Law Office

Counsel for Plaintiff

105 Net One Center, Fort Bonifacio

Taguig City

Proof of Service:

This is to certify that we have personally delivered copy of the answer

to the counsel of the plaintiff at their address stipulated in the

complaint on January 17, 2011 at 11:00 am and received by Maria Raisa

Helga B. Ysaac.