Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

101503 September 15, 1993 PLANTERS PRODUCTS, INC., petitioner, vs. COURT OF APPEALS, SORIAMONT STEAMS IP AGENCIES AND !"OSEI !ISEN !A#US I!I !AIS A, respondents. Gonzales, Sinense, Jimenez & Associates for petitioner. Siguion Reyna, Montecillo & Ongsiako Law Office for pri ate respon!ents.

#ELLOSILLO, J.: Does a charter part! 1 bet"een a shipo"ner and a charterer transfor# a co##on carrier into a private one as to ne$ate the civil la" presu#ption of ne$li$ence in case of loss or da#a$e to its car$o% Planters Products, Inc. &PPI', purchased fro# Mitsubishi International (orporation &MITS)*IS+I' of Ne" ,or-, ).S..., /,01/.234/ #etric tons &M5T' of )rea 647 fertili8er "hich the latter shipped in bul- on 94 :une 9/26 aboard the car$o vessel M5V ;Sun Plu#; o"ned b! private respondent <!osei <isen <abushi-i <aisha &<<<<' fro# <enai, .las-a, ).S..., to Poro Point, San Fernando, =a )nion, Philippines, as evidenced b! *ill of =adin$ No. <P 9 si$ned b! the #aster of the vessel and issued on the date of departure. On 92 Ma! 9/26, or prior to its vo!a$e, a ti#e charter part! on the vessel M5V ;Sun Plu#; pursuant to the )nifor# >eneral (harter $ "as entered into bet"een Mitsubishi as shipper5charterer and <<<< as shipo"ner, in To-!o, :apan. 3 Riders to the aforesaid charter part! startin$ fro# par. 94 to 63 "ere attached to the pre printed a$ree#ent. .ddenda Nos. 9, 1, 0 and 6 to the charter part! "ere also subse?uentl! entered into on the 9@th, 13th, 19st and 12th of Ma! 9/26, respectivel!. *efore loadin$ the fertili8er aboard the vessel, four &6' of her holds % "ere all presu#abl! inspected b! the chartererAs representative and found fit to ta-e a load of urea in bul- pursuant to par. 94 of the charter part! "hich readsB 94. . . . .t loadin$ port, notice of readiness to be acco#plished b! certificate fro# National (ar$o *ureau inspector or substitute appointed b! charterers for his account certif!in$ the vesselAs readiness to receive car$o spaces. "#e essel$s #ol! to %e properly swept, cleane! an! !rie! at t#e essel$s e&pense an! t#e essel to %e presente! clean for use in %ulk to t#e satisfaction of t#e inspector %efore !aytime commences. &e#phasis supplied' .fter the )rea fertili8er "as loaded in bul- b! stevedores hired b! and under the supervision of the shipper, the steel hatches "ere closed "ith heav! iron lids, covered "ith three &0' la!ers of tarpaulin, then tied "ith steel bonds. The hatches re#ained closed and ti$htl! sealed throu$hout the entire vo!a$e. 5 )pon arrival of the vessel at her port of call on 0 :ul! 9/26, the steel pontoon hatches "ere opened "ith the use of the vesselAs boo#. Petitioner unloaded the car$o fro# the holds into its steelbodied du#p truc-s "hich "ere par-ed alon$side the berth, usin$ #etal scoops attached to the ship, pursuant to the ter#s and conditions of the charter partl! &"hich provided for an F.I.O.S. clause'. & The hatches re#ained open throu$hout the duration of the dischar$e. ' Cach ti#e a du#p truc- "as filled up, its load of )rea "as covered "ith tarpaulin before it "as transported to the consi$neeAs "arehouse located so#e fift! &D3' #eters fro# the "harf. Mid"a! to the "arehouse, the truc-s "ere #ade to pass throu$h a "ei$hin$ scale "here the! "ere individuall! "ei$hed for the purpose of ascertainin$ the net "ei$ht of the car$o. The port area "as "ind!, certain portions of the route to the "arehouse "ere sand! and the "eather "as variable, rainin$ occasionall! "hile the dischar$e "as in pro$ress. ( The petitionerAs "arehouse "as #ade of corru$ated $alvani8ed iron &>I' sheets, "ith an openin$ at the front "here the du#p truc-s entered and unloaded the fertili8er on the "arehouse floor. Tarpaulins and >I sheets "ere placed in bet"een and alon$side the truc-s to contain spilla$es of the ferili8er. 9 It too- eleven &99' da!s for PPI to unload the car$o, fro# D :ul! to 9@ :ul! 9/26 &eEcept :ul! 91th, 96th and 9@th'. 10 . private #arine and car$o surve!or, (ar$o Superintendents (o#pan! Inc. &(S(I', "as hired b! PPI to deter#ine the ;outturn; of the car$o shipped, b! ta-in$ draft readin$s of the vessel prior to and after dischar$e. 11 The surve! report sub#itted b! (S(I to the consi$nee &PPI' dated 9/ :ul! 9/26 revealed a shorta$e in the car$o of 934.214 M5T and that a portion of the )rea fertili8er approEi#atin$ 9@ M5T "as conta#inated "ith dirt. The sa#e results "ere contained in a (ertificate of Shorta$e5Da#a$ed (ar$o dated 9@ :ul! 9/26 prepared b! PPI "hich sho"ed that the car$o delivered "as indeed short of /6.@0/ M5T and about 10 M5T "ere rendered unfit for co##erce, havin$ been polluted "ith sand, rust and dirt. 1$ (onse?uentl!, PPI sent a clai# letter dated 9@ Dece#ber 9/26 to Soria#ont Stea#ship .$encies &SS.', the resident a$ent of the carrier, <<<<, for P16D,/4/.09 representin$ the cost of the alle$ed shorta$e in the $oods shipped and the di#inution in value of that portion said to have been conta#inated "ith dirt. 13 Respondent SS. eEplained that the! "ere not able to respond to the consi$neeAs clai# for pa!#ent because, accordin$ to the#, "hat the! received "as Fust a re?uest for shortlanded certificate and not a for#al clai#, and that this ;re?uest; "as denied b! the# because the! ;had nothin$ to do "ith the dischar$e of the ship#ent.; 1% +ence, on 9@ :ul! 9/2D, PPI filed an action for da#a$es "ith the (ourt of First Instance of Manila. The defendant carrier ar$ued that the strict public polic! $overnin$ co##on carriers does not appl! to the# because the! have beco#e private carriers b! reason of the provisions of the charter part!. The court a 'uo ho"ever sustained the clai# of the plaintiff a$ainst the defendant carrier for the value of the $oods lost or da#a$ed "hen it ruled thusB 15

. . . Prescindin$ fro# the provision of the la" that a co##on carrier is presu#ed ne$li$ent in case of loss or da#a$e of the $oods it contracts to transport, all t#at a s#ipper #as to !o in a suit to reco er for loss or !amage is to s#ow receipt %y t#e carrier of t#e goo!s an! to !eli ery %y it of less t#an w#at it recei e! . After t#at, t#e %ur!en of pro ing t#at t#e loss or !amage was !ue to any of t#e causes w#ic# e&empt #im from lia%ility is s#ipte! to t#e carrier, common or pri ate #e may %e . Cven if the provisions of the charter part! afore?uoted are dee#ed valid, and the defendants considered private carriers, it was still incum%ent upon t#em to pro e t#at t#e s#ortage or contamination sustaine! %y t#e cargo is attri%uta%le to t#e fault or negligence on t#e part of t#e s#ipper or consignee in t#e loa!ing, stowing, trimming an! !isc#arge of t#e cargo . This the! failed to do. *! this o#ission, coupled "ith their failure to destro! the presu#ption of ne$li$ence a$ainst the#, the defendants are liable &e#phasis supplied'. On appeal, respondent (ourt of .ppeals reversed the lo"er court and absolved the carrier fro# liabilit! for the value of the car$o that "as lost or da#a$ed. 1& Rel!in$ on the 9/4@ case of (ome )nsurance *o. . American Steams#ip Agencies, )nc., 1' the appellate court ruled that the car$o vessel M5V ;Sun Plu#; o"ned b! private respondent <<<< "as a private carrier and not a co##on carrier b! reason of the ti#e charterer part!. .ccordin$l!, the (ivil (ode provisions on co##on carriers "hich set forth a presu#ption of ne$li$ence do not find application in the case at bar. Thus G . . . In the absence of such presu#ption, it was incum%ent upon t#e plaintiff+appellee to a!!uce sufficient e i!ence to pro e t#e negligence of t#e !efen!ant carrier as alle$ed in its co#plaint. It is an old and "ell settled rule that if the plaintiff, upon "ho# rests the burden of provin$ his cause of action, fails to sho" in a satisfactor! #anner the facts upon "hich he bases his clai#, the defendant is under no obli$ation to prove his eEception or defense & Moran, *ommentaries on t#e Rules of *ourt , Volu#e 4, p. 1, citin$ *elen v. *elen, 90 Phil. 131'. *ut, t#e recor! s#ows t#at t#e plaintiff+appellee !ismally faile! to pro e t#e %asis of its cause of action, i .e. t#e allege! negligence of !efen!ant carrier. It appears that the plaintiff "as under the i#pression that it did not have to establish defendantAs ne$li$ence. *e that as it #a!, contrar! to the trial courtAs findin$, the record of the instant case discloses a#ple evidence sho"in$ that defendant carrier "as not ne$li$ent in perfor#in$ its obli$ation . . . 1( &e#phasis supplied'. Petitioner PPI appeals to us b! "a! of a petition for revie" assailin$ the decision of the (ourt of .ppeals. Petitioner theori8es that the (ome )nsurance case has no bearin$ on the present controvers! because the issue raised therein is the validit! of a stipulation in the charter part! deli#itin$ the liabilit! of the shipo"ner for loss or da#a$e to $oods cause b! "ant of due deli$ence on its part or that of its #ana$er to #a-e the vessel sea"orth! in all respects, and not "hether the presu#ption of ne$li$ence provided under the (ivil (ode applies onl! to co##on carriers and not to private carriers. 19Petitioner further ar$ues that since the possession and control of the vessel re#ain "ith the shipo"ner, absent an! stipulation to the contrar!, such shipo"ner should #ade liable for the ne$li$ence of the captain and cre". In fine, PPI faults the appellate court in not appl!in$ the presu#ption of ne$li$ence a$ainst respondent carrier, and instead shiftin$ the onus pro%an!i on the shipper to sho" "ant of due deli$ence on the part of the carrier, "hen he "as not even at hand to "itness "hat transpired durin$ the entire vo!a$e. .s earlier stated, the pri#ordial issue here is "hether a co##on carrier beco#es a private carrier b! reason of a charter part!H in the ne$ative, "hether the shipo"ner in the instant case "as able to prove that he had eEercised that de$ree of dili$ence re?uired of hi# under the la". It is said that et!#olo$! is the basis of reliable Fudicial decisions in co##ercial cases. This bein$ so, "e find it fittin$ to first define i#portant ter#s "hich are relevant to our discussion. . ;charter part!; is defined as a contract b! "hich an entire ship, or so#e principal part thereof, is let b! the o"ner to another person for a specified ti#e or useH $0 a contract of affrei$ht#ent b! "hich the o"ner of a ship or other vessel lets the "hole or a part of her to a #erchant or other person for the conve!ance of $oods, on a particular vo!a$e, in consideration of the pa!#ent of frei$htH $1 (harter parties are of t"o t!pesB &a' contract of affrei$ht#ent "hich involves the use of shippin$ space on vessels leased b! the o"ner in part or as a "hole, to carr! $oods for othersH and, &b' charter b! de#ise or bareboat charter, b! the ter#s of "hich the "hole vessel is let to the charterer "ith a transfer to hi# of its entire co##and and possession and conse?uent control over its navi$ation, includin$ the #aster and the cre", "ho are his servants. (ontract of affrei$ht#ent #a! either be ti#e charter, "herein the vessel is leased to the charterer for a fiEed period of ti#e, or vo!a$e charter, "herein the ship is leased for a sin$le vo!a$e. $$ In both cases, the charter part! provides for the hire of vessel onl!, either for a deter#inate period of ti#e or for a sin$le or consecutive vo!a$e, the shipo"ner to suppl! the shipAs stores, pa! for the "a$es of the #aster and the cre", and defra! the eEpenses for the #aintenance of the ship. )pon the other hand, the ter# ;co##on or public carrier; is defined in .rt. 9201 of the (ivil (ode. $3 The definition eEtends to carriers either b! land, air or "ater "hich hold the#selves out as read! to en$a$e in carr!in$ $oods or transportin$ passen$ers or both for co#pensation as a public e#plo!#ent and not as a casual occupation. The distinction bet"een a ;co##on or public carrier; and a ;private or special carrier; lies in the character of the business, such that if the underta-in$ is a sin$le transaction, not a part of the $eneral business or occupation, althou$h involvin$ the carria$e of $oods for a fee, the person or corporation offerin$ such service is a private carrier. $% .rticle 9200 of the Ne" (ivil (ode #andates that co##on carriers, b! reason of the nature of their business, should observe eEtraordinar! dili$ence in the vi$ilance over the $oods the! carr!. $5 In the case of private carriers, ho"ever, the eEercise of ordinar! dili$ence in the carria$e of $oods "ill suffice. Moreover, in the case of loss, destruction or deterioration of the $oods, co##on carriers are presu#ed to have been at fault or to have acted ne$li$entl!, and the burden of provin$ other"ise rests on the#. $& On the contrar!, no such presu#ption applies to private carriers, for "hosoever alle$es da#a$e to or deterioration of the $oods carried has the onus of provin$ that the cause "as the ne$li$ence of the carrier. It is not disputed that respondent carrier, in the ordinar! course of business, operates as a co##on carrier, transportin$ $oods indiscri#inatel! for all persons. Ihen petitioner chartered the vessel M5V ;Sun Plu#;, the ship captain, its officers and co#pli#ent "ere under the e#plo! of the shipo"ner and therefore continued to be under its direct supervision and control. +ardl! then can "e char$e the charterer, a stran$er to the cre" and to the ship, "ith the dut! of carin$ for his car$o "hen the charterer did not have an! control of the #eans in doin$ so. This is evident in the present case considerin$ that the steerin$ of the ship, the #annin$ of the dec-s, the deter#ination of the course of the vo!a$e and other technical incidents of #ariti#e navi$ation "ere all consi$ned to the officers and cre" "ho "ere screened, chosen and hired b! the shipo"ner. $' It is therefore i#perative that a public carrier shall re#ain as such, not"ithstandin$ the charter of the "hole or portion of a vessel b! one or #ore persons, provided the charter is li#ited to the ship onl!, as in the case of a ti#e charter or vo!a$e charter. It is onl! "hen the charter includes both the vessel and its cre", as in a bareboat or de#ise that a co##on carrier beco#es private, at least insofar as the particular vo!a$e coverin$ the charter

part! is concerned. Indubitabl!, a shipo"ner in a ti#e or vo!a$e charter retains possession and control of the ship, althou$h her holds #a!, for the #o#ent, be the propert! of the charterer. $( Respondent carrierAs heav! reliance on the case of (ome )nsurance *o. . American Steams#ip Agencies, supra , is #isplaced for the reason that the #eat of the controvers! therein "as the validit! of a stipulation in the charter part! eEe#ptin$ the shipo"ners fro# liabilit! for loss due to the ne$li$ence of its a$ent, and not the effects of a special charter on co##on carriers. .t an! rate, the rule in the )nited States that a ship chartered b! a sin$le shipper to carr! special car$o is not a co##on carrier, $9 does not find application in our Furisdiction, for "e have observed that the $ro"in$ concern for safet! in the transportation of passen$ers and 5or carria$e of $oods b! sea re?uires a #ore eEactin$ interpretation of ad#iralt! la"s, #ore particularl!, the rules $overnin$ co##on carriers. Ie ?uote "ith approval the observations of Raoul (olinvauE, the learned barrister at la"
30

.s a #atter of principle, it is difficult to find a valid distinction bet"een cases in "hich a ship is used to conve! the $oods of one and of several persons. Ihere the ship herself is let to a charterer, so that he ta-es over the char$e and control of her, the case is differentH the shipo"ner is not then a carrier. *ut "here her services onl! are let, the sa#e $rounds for i#posin$ a strict responsibilit! eEist, "hether he is e#plo!ed b! one or #an!. The #aster and the cre" are in each case his servants, the frei$hter in each case is usuall! "ithout an! representative on board the shipH the sa#e opportunities for fraud or collusion occurH and the sa#e difficult! in discoverin$ the truth as to "hat has ta-en place arises . . . In an action for recover! of da#a$es a$ainst a co##on carrier on the $oods shipped, the shipper or consi$nee should first prove the fact of ship#ent and its conse?uent loss or da#a$e "hile the sa#e "as in the possession, actual or constructive, of the carrier. Thereafter, the burden of proof shifts to respondent to prove that he has eEercised eEtraordinar! dili$ence re?uired b! la" or that the loss, da#a$e or deterioration of the car$o "as due to fortuitous event, or so#e other circu#stances inconsistent "ith its liabilit!. 31 To our #ind, respondent carrier has sufficientl! overco#e, b! clear and convincin$ proof, the prima facie presu#ption of ne$li$ence. The #aster of the carr!in$ vessel, (aptain =ee Tae *o, in his deposition ta-en on 9/ .pril 9/22 before the Philippine (onsul and =e$al .ttache in the Philippine C#bass! in To-!o, :apan, testified that before the fertili8er "as loaded, the four &6' hatches of the vessel "ere cleaned, dried and fu#i$ated. .fter co#pletin$ the loadin$ of the car$o in bul- in the shipAs holds, the steel pontoon hatches "ere closed and sealed "ith iron lids, then covered "ith three &0' la!ers of serviceable tarpaulins "hich "ere tied "ith steel bonds. The hatches re#ained close and ti$htl! sealed "hile the ship "as in transit as the "ei$ht of the steel covers #ade it i#possible for a person to open "ithout the use of the shipAs boo#. 3$ It "as also sho"n durin$ the trial that the hull of the vessel "as in $ood condition, foreclosin$ the possibilit! of spilla$e of the car$o into the sea or seepa$e of "ater inside the hull of the vessel. 33 Ihen M5V ;Sun Plu#; doc-ed at its berthin$ place, representatives of the consi$nee boarded, and in the presence of a representative of the shipo"ner, the fore#an, the stevedores, and a car$o surve!or representin$ (S(I, opened the hatches and inspected the condition of the hull of the vessel. The stevedores unloaded the car$o under the "atchful e!es of the ship#ates "ho "ere overseein$ the "hole operation on rotation basis. 3% Veril!, the presu#ption of ne$li$ence on the part of the respondent carrier has been efficaciousl! overco#e b! the sho"in$ of eEtraordinar! 8eal and assiduit! eEercised b! the carrier in the care of the car$o. This "as confir#ed b! respondent appellate court thus G . . . *e that as it #a!, contrar! to the trial courtAs findin$, t#e recor! of t#e instant case !iscloses ample e i!ence s#owing t#at !efen!ant carrier was not negligent in performing its o%ligations . Particularl!, the follo"in$ testi#onies of plaintiff appelleeAs o"n "itnesses clearl! sho" absence of ne$li$ence b! the defendant carrierH that the hull of the vessel at the ti#e of the dischar$e of the car$o "as sealed and nobod! could open the sa#e eEcept in the presence of the o"ner of the car$o and the representatives of the vessel &TSN, 13 :ul! 9/22, p. 96'H that the cover of the hatches "as #ade of steel and it "as overlaid "ith tarpaulins, three la!ers of tarpaulins and therefore their contents "ere protected fro# the "eather &TSN, D .pril 9/2@, p. 16'H and, that to open these hatches, the seals "ould have to be bro-en, all the seals "ere found to be intact &TSN, 13 :ul! 9/22, pp. 9D 94' &e#phasis supplied'. The period durin$ "hich private respondent "as to observe the de$ree of dili$ence re?uired of it as a public carrier be$an fro# the ti#e the car$o "as unconditionall! placed in its char$e after the vesselAs holds "ere dul! inspected and passed scrutin! b! the shipper, up to and until the vessel reached its destination and its hull "as reeEa#ined b! the consi$nee, but prior to unloadin$. This is clear fro# the li#itation clause a$reed upon b! the parties in the .ddendu# to the standard ;>CN(ON; ti#e charter part! "hich provided for an F.I.O.S., #eanin$, that the loadin$, sto"in$, tri##in$ and dischar$e of the car$o "as to be done b! the charterer, free fro# all ris- and eEpense to the carrier. 35 Moreover, a shipo"ner is liable for da#a$e to the car$o resultin$ fro# i#proper sto"a$e onl! "hen the sto"in$ is done b! stevedores e#plo!ed b! hi#, and therefore under his control and supervision, not "hen the sa#e is done b! the consi$nee or stevedores under the e#plo! of the latter. 3& .rticle 9206 of the Ne" (ivil (ode provides that co##on carriers are not responsible for the loss, destruction or deterioration of the $oods if caused b! the charterer of the $oods or defects in the pac-a$in$ or in the containers. The (ode of (o##erce also provides that all losses and deterioration "hich the $oods #a! suffer durin$ the transportation b! reason of fortuitous event, force ma,eure, or the inherent defect of the $oods, shall be for the account and ris- of the shipper, and that proof of these accidents is incu#bent upon the carrier. 3' The carrier, nonetheless, shall be liable for the loss and da#a$e resultin$ fro# the precedin$ causes if it is proved, as a$ainst hi#, that the! arose throu$h his ne$li$ence or b! reason of his havin$ failed to ta-e the precautions "hich usa$e has established a#on$ careful persons. 3( Respondent carrier presented a "itness "ho testified on the characteristics of the fertili8er shipped and the eEpected ris-s of bul- shippin$. Mr. Cstanislao (hupun$co, a che#ical en$ineer "or-in$ "ith .tlas Fertili8er, described )rea as a che#ical co#pound consistin$ #ostl! of a##onia and carbon #onoEide co#pounds "hich are used as fertili8er. )rea also contains 647 nitro$en and is hi$hl! soluble in "ater. +o"ever, durin$ stora$e, nitro$en and a##onia do not nor#all! evaporate even on a lon$ vo!a$e, provided that the te#perature inside the hull does not eEceed ei$ht! &@3' de$rees centi$rade. Mr. (hupun$co further added that in unloadin$ fertili8er in bul- "ith the use of a cla#ped shell, losses due to spilla$e durin$ such operation a#ountin$ to one percent &97' a$ainst the bill of ladin$ is dee#ed ;nor#al; or ;tolerable.; The pri#ar! cause of these spilla$es is the cla#ped shell "hich does not seal ver! ti$htl!. .lso, the "ind tends to blo" a"a! so#e of the #aterials durin$ the unloadin$ process.

The dissipation of ?uantities of fertili8er, or its daterioration in value, is caused either b! an eEtre#el! hi$h te#perature in its place of stora$e, or "hen it co#es in contact "ith "ater. Ihen )rea is drenched in "ater, either fresh or saline, so#e of its particles dissolve. *ut the salva$ed portion "hich is in li?uid for# still re#ains potent and usable althou$h no lon$er saleable in its ori$inal #ar-et value. The probabilit! of the car$o bein$ da#a$ed or $ettin$ #iEed or conta#inated "ith forei$n particles "as #ade $reater b! the fact that the fertili8er "as transported in ;bul-,; thereb! eEposin$ it to the ini#ical effects of the ele#ents and the $ri#! condition of the various pieces of e?uip#ent used in transportin$ and haulin$ it. The evidence of respondent carrier also sho"ed that it "as hi$hl! i#probable for sea "ater to seep into the vesselAs holds durin$ the vo!a$e since the hull of the vessel "as in $ood condition and her hatches "ere ti$htl! closed and fir#l! sealed, #a-in$ the M5V ;Sun Plu#; in all respects sea"orth! to carr! the car$o she "as chartered for. If there "as loss or conta#ination of the car$o, it "as #ore li-el! to have occurred "hile the sa#e "as bein$ transported fro# the ship to the du#p truc-s and finall! to the consi$neeAs "arehouse. This #a! be $leaned fro# the testi#on! of the #arine and car$o surve!or of (S(I "ho supervised the unloadin$. +e eEplained that the 9@ M5T of alle$ed ;bar order car$o; as contained in their report to PPI "as Fust an approEi#ation or esti#ate #ade b! the# after the fertili8er "as dischar$ed fro# the vessel and se$re$ated fro# the rest of the car$o. The (ourt notes that it "as in the #onth of :ul! "hen the vessel arrived port and unloaded her car$o. It rained fro# ti#e to ti#e at the harbor area "hile the car$o "as bein$ dischar$ed accordin$ to the suppl! officer of PPI, "ho also testified that it "as "ind! at the "aterfront and alon$ the shoreline "here the du#p truc-s passed enroute to the consi$neeAs "arehouse. Indeed, "e a$ree "ith respondent carrier that bul- ship#ent of hi$hl! soluble $oods li-e fertili8er carries "ith it the ris- of loss or da#a$e. More so, "ith a variable "eather condition prevalent durin$ its unloadin$, as "as the case at bar. This is a ris- the shipper or the o"ner of the $oods has to face. (learl!, respondent carrier has sufficientl! proved the inherent character of the $oods "hich #a-es it hi$hl! vulnerable to deteriorationH as "ell as the inade?uac! of its pac-a$in$ "hich further contributed to the loss. On the other hand, no proof "as adduced b! the petitioner sho"in$ that the carrier "as re#ise in the eEercise of due dili$ence in order to #ini#i8e the loss or da#a$e to the $oods it carried. I+CRCFORC, the petition is -)SM)SS.- . The assailed decision of the (ourt of .ppeals, "hich reversed the trial court, is A//)RM.-. (onse?uentl!, (ivil (ase No. /@410 of the then (ourt of the First Instance, no" Re$ional Trial (ourt, of Manila should be, as it is hereb! -)SM)SS.- . (osts a$ainst petitioner. SO ORDCRCD.

Case digest F)*t+, Planters Product Inc. purchased fro# Mitsubishi international corporation #etric tons of )rea fertili8er, "hich the latter shipped aboard the car$o vessel M5V Sun Plu# o"ned b! private respondent <!osei <isen <abushi-i <aisha. Prior to its vo!a$e, a ti#e charter part! on the vessel respondent entered into bet"een Mitsubishi as shipper5charterer and <<<< as ship o"ner, in To-!o, :apan. *efore loadin$ the fertili8er aboard the vessel, &6' of her holds "ere presu#abl! inspected b! the chartererJs representative and found fit to ta-e a load of urea in bul-. .fter the )rea fertili8er "as loaded in bul- b! stevedores hired b! and under the supervision of the shipper, the steel hatches "ere closed "ith heav! iron lids. )pon arrival of vessel at port, the petitioner unloaded the car$o pursuant to the ter#s and conditions of the charter part!. The hatches re#ained open throu$hout the duration of the dischar$e. )pon arrival at petitionerJs "arehouse a surve! conducted over the car$o revealed a shorta$e and the #ost of the fertili8er "as conta#inated "ith dirt. .s such, Planters filed an action for da#a$es. The defendant ar$ued that the public polic! $overnin$ co##on carriers do not appl! to the# because the! have beco#e private carriers b! reason of the provisions of the charter part!. I++-e, Ihether or not the charter part! contract bet"een the ship o"ner and the charterer transfor#s a co##on carrier into a private carrier% e./, . charter part! #a! either her be ti#e charter "herein the vessel is leased to the charterer, "herein the ship is leased to the charterer for a fiEed period of ti#e or vo!a$e charter, "herein the ship is leased for a sin$le vo!a$e. In both cases, the charter part! provides for the hire of the vessel onl!, either for a deter#inate ti#e or for a sin$le or consecutive vo!a$e. It is therefor i#perative that such co##on carrier shall re#ain as such, not"ithstandin$ the charter of the "hole or part of the vessel b! one or #ore persons, provided the charter is li#ited to the ship onl!, as in the case of a ti#e charter or vo!a$e charter. It is onl! "hen the charter includes both ship and its cre" as in bareboat or de#ise that it beco#es a private carrier. )ndoubtedl!, a shipo"ner in a ti#e or vo!a$e charter retains in possession and control of the ship, althou$h her holds #a! be the propert! of the charterer.