Академический Документы
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SPECCOM /
INSURANCE /
TRANSPORTATION
Judge M.I. AMEROL - MACUMBAL
TAKE NOTE OF BAR Q’S
WITH THIS FORMAT:
I.
II. REHABILITATION
A. Court supervised
A. VOLUNTARY – Owner (sole proprietorship), majority of
partners, majority vote of BOD + 2/3 OCS. – File with RTC
(special commercial Court) with jurisdiction over principal
office of debtor
FRIA
II. REHABILITATION (liabilities are more than the assets)
A. COURT SUPERVISED
2. INVOLUNTARY – Creditor/group of creditors with an
aggregate claim of at least 1M, or at least 25% subscribed capital
stock, whichever is higher
B. PRE-NEGOTIATED – insolvent debtor, approved by debtor
with at least 2/3 total liabilities including secured creditors holding
more than 50% total secured claim, and unsecured holding more
than 50% unsecured claim
C. OUT-OF-COURT /INFORMAL RESTRUCTURING
- debtor, plus 67% secured, 75% unsecured, 85% total liabilities.
FRIA
LIQUIDATION
A. VOLUNTARY – insolvent debtor; individual debtor with at
least 500K debt who does not have sufficient assets to cover
liabilities
B. INVOLUNTARY
A. Insolvent debtor – 1 or more creditors with total claim at
least 500K
B. Sole proprietor, partnership, corporation – 3 or more
creditors, aggregate claim at least 1M, or at least 25%
subscribed CS, whichever is higher
FRIA
• If the court finds the petition meritorious, it will issue a
COMMENCEMENT ORDER, which shall include a STAY
ORDER suspending all actions or proceedings, including
employees claims, taxes. Etc.
• Is a letter of credit transaction also suspended by a
Commencement Order? NO. Transaction is solidary in
nature. Solidary claims are not suspended by the Stay
Order.
• CRAMDOWN RULE – The court can confirm the Rehabilitation
Plan despite rejection by the Creditors (requisites, i.e., the plan
complies with requirements, if the rehab preceiver
recommends confirmation, shareholders lose controlling
interest)
• STANDSTILL PERIOD – Not exceeding 120 days. Agreement
is approved by more than 50% total liabilities, publication,
CRAM DOWN EFFECT
INSURANCE
POINTERS
PARTIES: Insurer; Insured; Beneficiary
OBJECT: Insurance of a risk insured against
CAUSE: Premium
Insurable interest –pecuniary interest in the preservation of the thing and a
pecuniary loss in its destruction. Otherwise it is a wagering contract.
Insular Life Assurance v. Khu (2016, del Castillo case) -- unclear. SC said
that reinstatement should be from the point insurer agreed and paid
premiums on Dec 27, 1999. Khu Died on 22 September 2001, within the 2
year period.
but the letter of acceptance signed by Felipe shows that the insurance is
effective on 22 June 1999; Endorsement effective 22 June 1999)
POINTERS: INSURANCE
Co-insurance clause:
• a property insurance provision that penalizes
the insured's loss recovery if the limit of insurance purchased
by the insured is not at least equal to a specified percentage
(commonly 80 percent) of the value of the insured property
• Implied in marine insurance.
No fault clause in Compulsory motor vehicle liability
insurance (up to 15K)
(Note also that the owners are vicariously liable, under culpa
aquiliana. If under culpa contractual, the owners are primarily
liable).
COGSA; EASTERN SHIPPING LINES V.
BPI/MS INSURANCE CORP; GR 182864
In Japan, Sumitomo Corporation shipped on board ESLI’s vessel
M/V “Eastern Venus 22” 22 coils of various Steel Sheet in good
order and condition for transportation to and delivery at the port of
Manila, Philippines in favor of Calamba Steel located in Laguna
as evidenced by a Bill of Lading.
The shipment arrived in Manila in an unknown condition and
turned over to the arrastre operator, ATI, for safekeeping. Upon
withdrawal of the shipment by Calamba Steel, it was found out
that part of the shipment was damaged.
Calamba Steel sued the common carrier ESLI and ATI, the
arrastre operator, for damages.
In its defense, ESLI is saying that its liability is limited to US$500
per package under the COGSA. Is ESLI’s liability limited?
COGSA; EASTERN SHIPPING
LINES V. BPI/MS INSURANCE
CORP; GR 182864
RULING: ESLI’s liability is not limited.
The New Civil Code provides that a stipulation limiting a common
carrier’s liability to the value of the goods appearing in the bill of
lading is binding, unless the shipper or owner declares a greater
value.
COGSA, on the other hand, provides under Section 4, Subsection 5
that an amount recoverable in case of loss or damage shall not
exceed US$500.00 per package or per customary freight unless the
nature and value of such goods have been declared by the
shipper before shipment and inserted in the bill of lading.
Here, the Bill of Lading made reference to the invoice, which
“contains the itemized list of goods shipped to a buyer, stating
quantities, prices, shipping charges,” and other details which may
contain numerous sheets. This is sufficient compliance.
MARITIME COMMERCE; UNKNOWN OWNER
OF M/V CHINA JOY V. ATI, GR NO. 195661,
11 MARCH 2015
The cargo ship M/V “China Joy” (the Vessel) arrived at the Mariveles
Grain Terminal Wharf, operated by plaintiff [ATI]. The Vessel carried soybean
meal that had been shipped by ContiQuincyBunge L.L.C[.]
(ContiQuincyBunge), an exporter of soybean meal and related products, in
favor of several consignees in the Philippines.
Under the Charter Party Agreement over M/V “China Joy,” ContiQuincyBunge
represented itself as the Charterer of the Vessel, with San Miguel Foods, Inc.
as Co-Charterer, and defendant [Samsun] represented itself as the Agent of
the Shipowners.
ATI used an Unloader to unload the soybean meal. But then, the unloading
operations were suddenly halted when the head of the unloader hit a foreign
metal object in the middle of the soybean meal, which caused damage to the
unloader of ATI.
ATI sued the ship agent of the vessel and the consignees. The ship agent
argued that, under the Charter Party Agreement, the loading and unloading of
the cargo, as well as any damages that may be incurred, is the responsibility
of the charterer. Is the ship agent correct?
MARITIME COMMERCE; UNKNOWN OWNER
OF M/V CHINA JOY V. ATI, GR NO. 195661, 11
MARCH 2015
RULING
No, because ATI is not bound by the Charter Party Agreement.
There is likewise no contract of carriage between ATI, on one hand, and the
shipowner on the other. It likewise bears stressing that the subject of the
complaint, from which the instant petition arose, is not the damage caused to
the cargo, but to the equipment of an arrastre operator.
• NOTE: The functions of an arrastre operator involve the handling of cargo
deposited on the wharf or between the establishment of the consignee or
shipper and the ship’s tackle. Being the custodian of the goods
discharged from a vessel, an arrastre operator’s duty is to take good care
of the goods and to turn them over to the party entitled to their
possession.”
• “The legal relationship between an arrastre operator and a consignee is
akin to that between a warehouseman and a depositor. As to both the
nature of the functions and the place of their performance, an arrastre
operator’s services are clearly not maritime in character.