TRANSPORTATION LAW- Dec. 3, 2010 I. Air Transportation Lhuiller v.

British Airways case: says that the governing law is the Warsaw Convention issue is jurisdiction high contacting parties countries which are signatories in the Warsaw convention! countries who a"ide with the provisions o# the agree$ent in the WC international #light #light "etween two high contracting parties %according to WC& i$portance to deter$ine i# international #light to 'now the applica"ility o# WC %i# international #light( then WC applies& in this case( international #light %London)Italy& there#ore( WC applies *eld: case shall "e #iled in the: %a& place o# the $ain o##ice o# the airline %London& %"& place where you "ought the tic'et %Italy& %c& place where the incident happened There#ore: +hilippine court has no jurisdiction over the case( case dis$issed #or lac' o# jurisdiction I, -,. CA/.: -ne guy #ro$ Iloilo or Bacolod who joined a gol# tourna$ent in Bang'o' *e needed to pass /ingapore and so he "ought tic'et #ro$ +AL going to /ingapore since +AL has no direct #light #ro$ /ingapore to Bang'o' he got a British Airways tic'et going to Thailand #ro$ /ingapore *e arrived using +AL0s plane "ut British Airways would not accept the$ "ecause the tic'et was not indorsed "y +AL BA: i# we accept this tic'et( there is a possi"ility that +AL will not pay us *e was not a"le to use the 1uestioned tic'et and 2aruda Airways going to Bang'o' /o$e o# the$ got sic' "ecause o# the hassle and so was not a"le to play gol# When they got "ac' in the +hils( they #iled a case #or da$ages #or "reach o# contact against +AL +AL #iled $otion to dis$iss I//3./ 4. /hould the case "e #iled against BA5 6. 7o the +hilippine courts have jurisdiction over the case given it is a #light #ro$ /ingapore to Thailand5 8. 7oes the WC apply5 *.L7 4. ,o. When he purchased tic'et #ro$ +AL( +AL only used BA as their agent "y virtue o# an agree$ent "etween airlines and the $ain carrier is +AL and so +AL should "e the one sued.

9es. The cause o# contract here is not a "reach o# contact o# carriage "ut the negligence o# +AL in co$$unicating the tic'et to the British .$"assy as #ar as the connection is concerned. ,ote that the negligence happened "e#ore contact o# carriage was e##ected. 8. ,o. The cause o# action is not the contract o# carriage "ut +AL0s negligence $a'ing the WC not applica"le. ,-T.: Co$pare the Lhuiller case and this case

6.

II. -BLI2ATI-,/ -: T*. +A;TI./ A. <igilance over the Cargo 4=88. .>traordinary diligence is re1uired 4=8?. +resu$ption o# negligence in case o# loss( da$age or deterioration 2;: as long as it is shown that there is da$age then the co$$on carrier %CC& could "e $ade lia"le .@+: CC could prove that it has e>ercised e>traordinary diligence over the goods 4=8A. Coverage o# e>traordinary diligence lasts #ro$ the ti$e the cargoes are conditionally placed in the position o# and receivedBaccepted #or transportation "y the carrier to "e delivered to the consignee( without prejudice to 4=8C 4=8=. .ven i# the cargoes are te$porarily unloaded( CC is still o"ligated to e>ercise e>traordinary diligence 3,L.// the shipperBowner avails o# the right to stoppage in transitu stoppage in transitu right o# an unpaid vendor to stop the ship$ent or transportation o# the cargo to the consignee "ecause the consignee is not capa"le o# paying hi$( and so the vessel "eco$es a warehouse( there#ore shall e>ercise the diligence o# the good #ather o# a #a$ily and not e>traordinary diligence 4=8C. CC has to continue to operate with e>traordinary diligence even i# the goods are placed in the warehouse at the place o# destination. :act that it has reached the destination and place o# the warehouse it doesn0t #ollow that the e>traordinary diligence has already ceased to e>ist. It would only cease to e>ist i# CC has given a reasona"le ti$e and given notice to the consignee to release the sa$e I# there is actual or constructive delivery( e>traordinary diligence ceases to e>ist Actual delivery cargoes were given to the consignee and the consignee receives the cargoes. Constructive delivery notice was already given to the consignee regarding the arrival o# the cargoes and the consignee was already given a reasona"le ti$e to release it even i# there is no actual release In cargoes( i# there is delay( then one o# the options o# the shipper is to a"andon the cargo once in transit and as' #or the #ull price o# the cargo. But to "e a"le to do so(

;e1uisites: 4. there should "e a de$and in writing addressed to the CC stating your intention to a"andon the goods 6. it shall "e done "e#ore the cargo reaches the destination B. T;A,/+-;TATI-, -: +A//.,2.;/ %CC& 4. 6. 8. -"ligation to accept the passengers without discri$ination -"ligation to transport the$ sa#ely -"ligation to transport without delay

o o

Co$$on carrier will not "e lia"le i# there are already de#ects in the goods or in the pac'ing o# the goods. But I# the de#ect is apparent and the co$$on carrier still accepts it( then the #act that there was prior de#ect could no longer "e raised as a de#ense against the shipper. I# the co$$on carrier does not 'now o# the de#ect then it can "e raised as a de#ense. +rovided( that it had e>ercised the diligence to #orestall or $ini$iGe da$age %Art. 4=D6&.

When will CC "e lia"le in transporting passengers5 a. When there is delay %4=DE& ". When there is deviation %4=D=& III. 7.:.,/./ -: T*. C-FF-, CA;;I.; 4=8D. 2;: CCs are responsi"le #or the loss( destruction and deterioration o# the goods .@+: i# the sa$e is due to any o# the #ollowing causes -,L9: $e$oriGeHHH 4. #loods( stor$( lightning( earth1ua'e or other natural disasters and cala$ities 6. in case o# an act o# a pu"lic ene$y during war( international or civil 8. act or o$ission o# the owner o# the cargo %shipper& D. character o# the goods or de#ects in the pac'ing or container ?. order or act o# co$petent pu"lic authority ;.I3I/IT./: ,atural 7isaster 4. this is the only cause o# loss( destruction and deterioration o# the goods 6. that the CC has e>ercised the due diligence in preventing or $ini$iGing the loss "e#ore( during and a#ter the occurrence o# the natural disaster %4=8J& CC incurs delay %4=DE& or deviation change o# route %4=D6 or 4=D4& 7elay delay in the departure andBor arrival I# there is delay( CC is still lia"le although the goods su##ered deterioration( loss or destruction caused "y natural cala$ity( which is an a"solute de#ense. Act o# +u"lic .ne$y 4. there should "e actual war "etween the place o# destination and place where the carrier "elongs( international or civil pu"lic ene$y pirates are pu"lic ene$y( thieves( ro""ers( rioters and hijac'ers are not pu"lic ene$ies +u"lic ene$y in war( whether civil or international ( as a valid de#ense o# co$$on carrier o There $ust "e an actual war "etween the country where the co$$on carrier co$es #ro$ and the country that con#iscated the goods. %hijac'ers( thieves( ro""ers are not considered as pu"lic ene$y! "ut a pirates are considered as such.&

-rder o# a +u"lic Authority $ay "e used as a de#ense when: o It is a valid order o There is a #orce that could co$pel the co$$on carrier to a"ide "y the order o# the co$petent authority. LIABILITI./ -: C-FF-, CA;;I.;: Act o# an e$ployee that caused injury to the passenger would still $a'e the co$$on carrier lia"le( whether or not the e$ployee is acting in accordance with his duty! or even i# the act o# the e$ployee that caused the injury is in violation o# the instruction o# the co$$on carrier. It shall also "e noted that( "y e>press provision o# the law( an act o# a stranger or co)passenger o# the co$$on carrier that caused injury to another passenger would still $a'e the co$$on carrier lia"le. I# a passenger was injured and he has not yet paid his #are( then he is not considered a passenger and the co$$on carrier will not "e lia"le to hi$! "ut i# he has an intention to pay even i# he has not yet paid( then he can still "e considered as a passenger. I# the passenger was not aware that he rode the wrong "us( he is still considered as a passenger. I# the passenger pretended to "e the owner o# a plane tic'et and "oarded the plane( he cannot "e considered as passenger "ecause there was #raud on his part.

Character o# the goods or de#ect in the pac'ing o# the container

In the case o# gratuitous passenger( the co$$on carrier is still lia"le! "ut the lia"ility $ay "e li$ited depending upon the stipulation o# the passenger and the co$$on carrier. *owever in the case o# an ordinary passenger( the lia"ility o# the co$$on carrier cannot "e lessened or di$inished "y stipulation. ,ote that the stipulated li$itation o# lia"ility in the case o# gratuitous passengers shall only "e valid in ordinary negligence. It is not valid i# the cause o# injury is will#ul act o# gross negligence. Cause o# action i# the passenger is injured: 4. Culpa Contractual %"reach o# contract& ) Case against the co$$on carrier only. Cannot "e #iled against the driver "ecause he is only an agent. +reponderance o# evidence is needed to esta"lish lia"ility. 6. Iuasi)delict ) Case against the driver and the co$$on carrier! "ased on torts.

Culpa Cri$inal ) Case against the driver. Co$$on carrier is su"sidiarily lia"le i# the driver is insolvent. +ossi"le da$ages: Actual da$ages o %li#e e>pectancyK6B8 > CE age& > inco$e and e>penses Foral da$ages o *urt #eelings( sleepless nights( $ental anguish o In culpa contractual( $oral da$age is not awarded e>cept in the case o# death or "ad #aith. .>e$plary da$ages o Awarded i# there is one or $ore aggravating circu$stances ,o$inal da$ages o Awarded to vindicate the right o# the plainti##. Transportation Laws Dec. 10, 2010 Code o# co$$erceB Fariti$e Law: Corporation A ) has "us4( "us 6( and "ldg. The owners o# corporation A are: B who has a house and lot C) who has a car 7 who has a car L Corporation has a distinct and separate personality. /o the lia"ility o# A cannot "e trans#er to B( C (7... ,ature o# lia"ility under $ariti$e law: it is real and hypothetical in nature... What does real and hypothetical in nature $ean5 It is li$ited lia"ility. Li$ited lia"ility) in case the vessel is totally loss through the #ault or negligence o# the captain( the lia"ility o# ship owner is e>tinguished. L Authority: Art. C8= under code o# co$$erce: the owner shall "e civilly lia"le #or the acts o# the captain up to the actual value o# the ship( #reight... L Li$ited lia"ility only applies to $ariti$e transactionB "usiness... L .le$ents o# real and hypothetical in nature: L The vessel is totally or partially loss L 7one through negligence or #ault o# the captain and not the owner L ..g. the real and hypo in nature will not apply: ,egros navigation v Firanda 7uring the voyage( there was a collision o# negros navigation and an oil tan'er "ecause o# the negligence o# the captain... "ut the cause is that the "oat is not sea worthy "ecause it sun' within ?)4E $inutes where in $any people died. And allowing the "oat to "e overloaded with people( that is why there was negligence on the part o# the owner and not only to the negligence o# the captain... That is why the li$ited lia"ility rule will no longer apply in this case. L Li$ited lia"ility rule: <essel( appearance( #reight and insurance L It does not violate the civil code.

8.

In order to avail li$ited lia"ility in partial loss there $ust "e a written notice o# a"andon$ent. That the owner is turning over to the predator possessor o# the thing or a"andoning the vessel. L +rinciple o# Li$ited lia"ility rule %LL;&: no vessel( no lia"ility... L Is there a need o# a"andon$ent5 ,o there is no need "ecause there is nothing to a"andon. .>ception o# LL;: L I# there is a concurrence o# owner or agent o# the vessel L In case i# the vessel is insured L The nature o# the clai$ is in special law that the wor'ers who died in the per#or$ance o# their duties. It is Wor'$en0s co$pensation clai$. L When all the e>penses #or repair incurred prior to the voyage( "ecause there was o"ligation already arise. L The #reight that was paid will not "e included in the LL;. It is only the value o# the vessel will "e e>tinguished. +rotests: Within 6Dhrs -r to the #irst point o# entry in the +hilippines It is not applica"le to all case... -nly i# the vessel was shipwrec'( hurricane( arrival under stress( in case o# $ariti$e collision %ta'e note o# this( "ecause it involves $ariti$e vessels and it should "e "oth $ariti$e vessel& Where to #ile5 In 4JC4( the jurisdiction is regarding to the a$ount involved In Fetro Fanila: ;TC e>ceeds DEE' -utside FF: ;TC) e>ceeds 8EE' Below this a$ount a"ove stated: will in Fetropolitan Trial Court. Fariti$e Collision) there is a need to protest <essel any "arge( lighter( "ul' vessel( #reighter( passenger #reighter( tan'er( #ishing "oats( contra"ands... design and capa"le o# transporting person or cargo #ro$ one coast to another. ,ot vessel: I# the vessel is operated under Ar$ #orces o# the +hilippines( all #oreign ( Bang'a( sailing "oats( less than 8 gross tons( "oats that are accessory( yachts( health service( #loating store houses Re !isites o" #ariti#e $esse%& 4 ,ot accessory 6 *as a license to engage in the transportation 8 3sing to transport crates or people "y sea 3nder code o# co$$erce Art.C8? regarding the person capa"ility to protest and that it should "e "oth $ariti$e vessels. L ;egistration and e>traordinary diligence <essel is personal property. It is registered with conveyance and custo$s

FA;I,A ;3L./ I, ;.2I/T;ATI-,) it is the one who set the rules *ow to ac1uire5 2ood #aith with valid title: 8yrs 2: without valid title with adverse possession: 4E yrs

Through sale Can you sell a vessel while in voyage5 9es Who will pay the pay$ent o# wages5 +urchaser Who will collect the #reight earn5 +ertains to purchaser Can you sell a vessel when you reach in the /an :rancisco or destination5 9es Who will collect5 The /eller "ecause he already #inished the transaction Who will pay the wages5 /eller Who will a"andon the ship5 The ship owner or agent "ut not the chartered.. Co)owner can a"andon it only in proportion o# his share. All vessels $ust "e registered. What are the vessels need to "e registered5 -wned "y the +hilippine citiGen or +hil. Co$panies that atleast AEM owned "y +hil. CitiGen Fore 4? gross tons in capacity -ptional registration: 4? tons or less ,ot re1uired: war vessels( "oats o# private 8 tons or less( non)$otoriGe "oats( Te$porary certi#icate: Fay "e given incase o# charter or Farina Charter $ust not "e less than 4yr.. operation entirely "y :ilipino citiGens and $an "y :ilipino citiGens When can you deleteBcancel the registration5 +hil.! incase o# "are "oat chartered "y a #oreign +re)ter$ination o# chartered agree$ent /ale o# the vessel to a #oreigner /crapping or deco$$ission o# the vessel %no longer to "e used& Constructive or total loss Transpo Lect!re- 'an ( Charter +arty ) a special contract in $ariti$e co$$erce. It is not the contracting parties "ut the contract itsel#. It is a contract "y which the owner or agent o# the vessel leases the whole or part o# the vessel to another #or transportation o# the cargo or passengers #ro$ one place to another #or a certain price. 2overning laws: Co$$on Carrier) civil code +rivate Carrier) Code o# Co$$erce The $o$ent CC "eco$es a private carrier) Code o# Co$$erce I$portance o# deter$ining whether co$$on carrier is considered a private carrier: 4. To 'now which law will govern 6. /tipulation that li$its lia"ility is valid in a private carrier "ut not in a co$$on carrier. When is a co$$on carrier considered as private carrier5 BA;. B-AT C*A;T.; BA;. B-AT C*A;T.; It is when a vessel is hired %including the crew and everything&. The control( $anage$ent( and possession is with the charterer. Article A?6 o# the code o# co$$erce: Contents and #or$alities o# the chartered parties 4. The charter parties has to "e drawn in duplicates( signed "y the parties. 6. Charter parties should also speci#y: N the 'ind( the na$e( and the tonnage o# the vessel.

N the origin o# registry o# the vessel. N The na$e o# the shipper( the owner( and the charterer. N +ort o# loading and unloading. N Capacity and the carriage agreed upon "y the parties to "e loaded. N The #reightage N the pri$age N lay days. :reight)#are or 'ind o# cargo to "e loaded +ri$age) #ee given #or the special care given to the cargo or "y using the e1uip$ent Lay days) allowa"le nu$"er o# days that a charterer $ay load or unload the cargo Why is this i$portant to 'now5 ) Because we are dealing with cargoes and vessels( and they are always in transit and delay would cause a lot o# $oney #or additional charge #or de$orage ) 7e$orage) #ee charged in e>cess o# the nu$"er o# days allowed to load and unload ;e1uisites #or a valid charter party: 4. Consent o# the contracting parties 6. .>istence o# the vessel at the disposal o# the charterer 8. /tipulation as to the #reightage D. Co$pliance with Art. A?6 o the Code o# Co$$erce What is the indication o# Art A?6) the charter party has to "e in writing as general rule .@+: Art A?8( i# the cargoes "e received and the charter party has not yet "een signed then it is understood that it has "een e>ecuted and the one that will govern the o"ligation o# the parties are the stipulations in the "ill o# lading Oinds o# Charter +arty: 4. Bare Boat Charter +arty or 7e$ise Charter +arty ) a person hires the vessel and the crew( and so the charterer would "e the one who would ta'e charge in paying the wages o# the crew and in control o# provisioning everything in the vessel( in e##ect( the crew "eca$e the e$ployees o# the charterer ) charterer party would "e lia"le to third persons ) charterer has co$$and( possession and navigation o# the vessel! he acts as owner who handles everything ) only instance where co$$on carrier would "e a private carrier 6. Contract o# A#reight$ent charterer hires the vessel either #or a dete$inate period o# ti$e or per voyage or successive voyages a. <oyage Charter per voyage or successive voyages ". Ti$e <oyage #i>ed ti$e Contract o# Towage contract o# service where the "arge is towed "y a vessel Can a ship captain enter a charter party5

) )

Art. A??( the ship captain can enter a charter party provided( in the a"sence o# a ship agent( even i# it is in contravention or against the instruction o# the ship agent or owner still valid But the owner $ay go against the ship captain #or da$ages

Art. A?A as to deter$ine when de$orage shall "e given ) i# there is no ti$e stipulated in the charter party then the usage o# the port shall "e used What i# during the chartering( the vessel was #ound later on not seaworthy any$ore5 ) Art A?=( the captain is o"ligated to loo' #or a vessel and continue the voyage within 4?E 'ilo$eters #ro$ port ) I# the captain cant #ind vessel to deliver he $ay apply #or deposit o# the cargo Art A?C( the #reight shall accrue as stipulated in the contract. But i# the stipulation is not clear( the rule will "e( i# on the charter there is a $onth or a date( then the #reight will accrue during the ti$e o# the loading. I# there is a #i>ed period( then the #right accrues on that very date. Art A?J)i# the cargoes are placed on the vessel( the captain $ay sell the cargos su"ject to the #ollowing conditions: 4. i# the $oney #ro$ the sale will "e needed #or the repair o# the pro"le$ o# the vessel. 6. 3navoida"le and urgent e>penses .##ect) i# a#ter the repair( the cargo was a"le to reach the point o# destination( then the captain will pay the owner "ased on the price in the place o# destination. /a$e goes with i# the vessel did not reach the destination. Will the cargo "e lia"le #or the #reight5 I# the vessel was not a"le to reach the destination( its lia"ility shall "e proportionate to the distance. I# it reaches the destination( it will "e lia"le #or the whole value. Art. A?J) partial #reight i# the vessel was lost or did not reach the destination. Art. AA6) shipwrec' "ut cargo was recoveredK lia"le only up to the e>tent o# the da$age %partial #reight& Art. AA? the $o$ent the cargo is placed in the vessel( the co$$on carrier is already lia"le. There is already a lien created in the cargo. What are the lia"ilities5 o :reight o .>penses o Average %e>pense that inure to the "ene#it o# cargo holders& accorded to hi$. .>: Pettison. I# you cannot pay the lia"ilities( then underQ

Art AAC the cargos "e sold in the auction. Cargos to "e sold in auction "y the captain: cargos under AA? and AAA i# the cargo is at the ris' o# deteriorating consignee cannot "e #ound or re#uses to clai$ the cargo i# it is very e>pensive to preserve the cargo. Instances where cargo is lia"le #or #ull #reight: art A?J The cargo was sold #or the repair( and the vessel reached the destination. 3nder AA6( when the vessel was repaired "ut a#ter the repair the cargo was not sold and the vessel reached the destination. 3nder AA8( deterioration due to pac'ing :ortuitous event When not re1uired to pay a #reight5 3nder AA4( when #or reasons o# shipwrec' or stranding( or when the goods were con#iscated "y ene$ies or pirates. 3nder AAE( when the cargo was thrown over"oard and was never recovered. %jettison&