Professional Documents
Culture Documents
Abao
H1
-1-
(ART. 359,
JURISPRUDENCE)
(ARTS. 363-365)
(ART. 366,
JURISPRUDENCE)
(ART. 373)
TIME TO DELIVER
ROUTE
DELIVERY
PARTIAL DEFECTIVE
CLAIM/SUIT
MISDELIVERY/NONDELIVERY
MULTI-CARRIERS
the
1. indemnity stipulated in
the bill of lading.
2.
if
no
stipulation,
damages due to delay
which may not exceed
the current price of the
goods on the day and
place of destination.
3. special damages, like
unrealized
profit,
if
carrier foresaw or had
notice of circumstances
leading to the probable
occurrence
of
such
damage.
4. full value of goods, if
consignee
should
exercise abandonment of
the goods by advising
carrier accordingly prior
to arrival at destination.
purpose
of
following
requirements: so carrier can
check validity of claims
while facts are still fresh
and
documents
still
available.
1. when the damage is
ascertainable
from
the
outside part of the package,
the claim must be made at
the time of receipt.
2. when the damage is
ascertainable only by the
opening of the package, the
claim against carrier must
be made within 24 hours
following receipt (longer
period may be stipulated).
3. in both cases, the claim
must
be
made
before
payment of transportation
charge.
4. a provisional claim need
not state in detail list of
goods lost or damaged, so
long as carrier can make
reasonable verification.
5.
claim
is
condition
precedent to right of action,
which must be filed within 2
year from delivery of goods
or denial of claim.
6. sufficient and reasonable
shorter period may be
stipulated in the bill of
lading.
This
refers
to
an
arrangement where several
carriers
successively
transport the goods, or by
a single through bill of
lading issued by a carrier
and honored by the other
carriers.
1. in transportation of
goods
by
successive
carriers, the last carrier
assumes the obligation of
the previous carriers.
2. but the last carrier, if
not directly responsible for
the loss or damage, may
proceed
against
the
previous carriers.
3. shipper/consignee have
right of action against
carrier
who
executed
transportation contract, or
the other carriers who
received
goods
without
reservation.
4. carriers with reservation
are
not
relieved
of
responsibilities for their
own acts.
-2-
SHIPOWNERS/AGENTS
A. Definition:
1.
those
with
motive
power.
2.
means
of
water
transportation (P.D. 474)
B. Excluded:
1. local and foreign military
vessels
2.
bancas
and
other
watercrafts of less than 3
tons gross capacity (P.D.
474)
3.
small
watercrafts
engaged in river and bay
traffic (Art. 835)
C. Classified as personal
property,
ownership
of
which to be recorded in
registry of vessels.
D.
Warranty
seaworthiness:
of
1.
2.
3.
4.
1.
2.
3.
OFFICERS
PASSENGERS
B. Qualifications:
1.
2.
CAPTAIN/MASTER
right
of
3.
2.
3.
4.
1.
2.
3.
4.
include
the
sailing mate
second mate
third mate
marine
engineer
(Arts. 627-633)
damage to vessel
due
to
lack
of
skill/negligence.
theft,
robberies,
mutiny by crew.
abuse of power.
unjustified deviation.
losses,
fines
and
confiscation imposed
due to violation of
laws and regulations
(Arts. 618-620).
Filipino citizen.
with
skill
and
capacity to command
and direct vessel.
duly
licensed
by
MARINA (Arts. 609,
882)
B.
Officers
following:
3.
4.
SUPERCARGOES
in maritime law, a person
specially employed by the
owner of cargo to take
charge
of
and
sell
merchandise which have
been shipped, to purchase
returning cargoes, and to
receive freight, as he may
be authorized (Arts. 649651).
1. if due to fault of
captain or ship agent,
passenger has right to
refund of fare and to
damages.
2. if due to force majeure
or fortuitous event, only
return of fare or part
thereof in proportion to
distance traveled before
interruption (Art. 697).
B. Baggage:
1.
passenger
is
considered
a
shipper
insofar as the goods he
carries on board.
2. insofar as the goods in
the immediate custody of
the
passenger,
the
captain is not responsible,
unless the damage arises
from his act or the crews
(Art. 703).
-3-
of
gross
common danger.
arising
from
accidents
of
sea/disposition of
authority.
3.
peril
imminent
and
ascertained.
4. part of vessel or cargos
deliberately sacrificed.
5. successful saving of vessel or
cargo.
6. proper legal steps and
authority taken.
D. Effect: all person with interest
in the vessel and cargo saved
shall contribute (Art. 812).
Example: total value of vessel
and cargos is P10 million broken
down as follows:
Vessel
Cargo
1
Cargo
2
Cargo
3
=
=
P5,000,000.00
P2,000,000.00
P2,000,000.00
P1,000,000.00
P500,000.00
P200,000.00
P200,000.00
ARRIVAL UNDER
STRESS
A. Meaning:
arrival of the vessel at
the nearest and most
convenient port, when
the captain believes
the
vessel
cannot
continue the voyage to
the port of destination
(Art. 819).
once cause of arrival
under stress ceases,
captain must continue
voyage, otherwise, he
is liable for damage
caused by delay (Art.
825).
B. Justifications:
1. lack of provisions
(not due to negligence
or
failure
to
take
necessary provision).
2. well-founded fear of
seizure
by
pirates
(manifest and based on
positive and justifiable
facts).
3. accident disabling
vessel to navigate.
4.damage to vessel
caused
by
malice,
negligence, want of
foresight, or lack of
skill of captain (Art.
820).
COLLISION/ALLISION
SHIPWRECKS
A. Definition:
A. Meaning:
when
a
vessel
is
damaged rendering her
unable to navigate, or
when the vessel is lost at
sea.
B. Liability
1. generally, each owner,
whether of the vessel or
cargo shall bear his own
loss.
2.
if
shipwreck
or
stranding
caused
by
malice, negligence or
lack of skill of captain, or
vessel was insufficiently
repaired and equipped,
ships
agent
and/or
shipper may demand
indemnity
from
the
captain.
C. Condition precedent
for
recovery
of
damages/losses:
maritime protest under
oath by the captain
within 24 hours, before
competent
authority
where
collision
took
place at first port of
arrival (Art. 835).
-4-
H2
COMMON CARRIER: TRANSPORTATION OF GOODS
(ART. 1766)
GOVERNING LAWS
1.
2.
3.
(ART. 1732)
COMMON CARRIER
1. engaged in the business of
carrying or transporting goods
or passengers
a. whether as principal
or ancillary business
b. whether on regular/
scheduled basis or
occasional/unschedul
ed basis
2. offers its service to the
public
a.
whether
to
the
general population
b.
or narrow segment of
general population
3. for compensation or fixed
price or rate
4. control of operation/cargo
(ART. 1733)
EXTRAORDINARY
DILIGENCE/RESPONSIBILITY
(ART. 1735)
LOSS, DETERIORATION
OR DESTRUCTION
PRESUMPTION OF
NEGLIGENCE
1. not conclusive but
disputable presumption
2. may be overcome by
contrary evidence of
defenses.
(ART.1753)
law of the country of
destination shall govern
liability
of
common
carrier
for
loss,
destruction
or
deterioration of goods.
(ART. 1734)
DEFENSES
EXEMPTING OR
MITIGATING
LIABILITY
1. natural disaster
like
flood,
storm,
earthquake,
lightning.
2. act of public
enemy
in
war,
whether international
or civil.
3. act or omission of
owner or shipper of
goods.
(ARTS. 1739-1743)
CONDITIONS TO AVAIL OF
DEFENSES
1.
a.
b.
2. same
(above).
3.
a.
b.
as
in
#1
if proximate cause,
exempting.
if
contributory
negligence,
mitigating.
4. character of goods
or defect in the
packing or container.
4.
exercise
of
due
diligence to forestall or
prevent losses.
5. order or act of
competent
public
authority.
(ARTS. 1744-1752)
STIPULATION LIMITING
LIABILITY
1. Requisites:
a. in writing
b. with
valuable
consideration other
than the services of
the common carrier
c. reasonable, just and
not
contrary
to
public policy
2. Void Stipulation:
a. unreasonable
b. unjust
c. contrary to public
policy
3. Valid Stipulation:
a.
limited to value of
goods appearing in
bill of lading
b.
fixed sum that is
reasonable and just
and agreed upon
c.
delay due to strike
or riot
4.
Factors
to
be
considered:
a. refusal
to
carry
goods
unless
stipulation limiting
liability is signed by
shipper
b. delay or deviation
c. lack of presence of
competition
-5-
TRANSPORTATION OF PASSENGERS
(ARTS. 1733, 1755)
EXTRAORDINARY
DILIGENCE
1. to carry passengers
safely as far as human care
and foresight can provide.
2. using utmost diligence of
a very cautious person.
3. with due regard for all
the circumstances.
NO INSURER OR ABSOLUTE
SAFETY
the common carrier is not
required to exercise all the
care, skill or diligence the
human mind can conceive,
nor free the passenger from
all possible risks.
PASSENGER
one who travels in a public
conveyance by virtue of an
express of implied contract
with the common carrier,
paying fare or what is the
equivalent thereof.
(JURISPRUDENCE)
CONTRACT OF CARRIAGE
(ART. 1756)
(DEFENSES)
LIMITATION OF LIABILITY
DUTY OF PASSENGERS
1. to observe ordinary
diligence to avoid injury to
himself.
OF
1. liability cannot be
dispensed or lessened by
posting
of
notices,
statements on tickets or
otherwise.
1.
exercise
of
extraordinary diligence by
common carrier.
2. in gratuitous carriage
stipulation to limit liability
may be valid, but not for
willful
act
or
gross
negligence.
DEATH OR INJURY TO
PASSENGER
A. Commencement:
1. (liberal view) when a
person
offers
to
be
transported, placing himself
in the care and control of the
common carrier who accepts
him as such passenger.
2. (strict view) there is actual
boarding or placing of a part
of the passengers body in
the vehicle.
B. Termination:
When the passenger alights
from the vehicle at the place
of
destination
and
has
reasonably opportunity to
leave the common carriers
premises.
PRESUMPTION
NEGLIGENCE
NON-EXEMPTING OR NONLIMITING
1. common carrier is liable
due to negligence or willful
act of employee, even if
done beyond scope of
authority or in violation of
orders.
2. liability does not cease
with exercise of ordinary
diligence
by
common
carrier.
3. liability is not eliminated
or limited by stipulation
posting
of
notices,
statements on the tickets.
2. contributory negligence
of passenger does not bar
recovery of damages but
reduces amount thereof.
(ART. 1763)
ACTS OF COPASSENGERS OR
STRANGERS
1. common carrier is
responsible in case of
death or injury on account
of willful act or negligence
of other passengers or
strangers -2. if employees could
have
stopped
or
prevented the act or
omission by exercise of
ordinary diligence.
-6-
RECOVERABLE DAMAGES
ACTUAL
MORAL
NOMINAL
awarded
for
vindication
or
recognition of a right
which
has
been
invaded or violated
(Art. 2221).
award
is
more
nominal but less
actual
damages
2224).
Grounds
recovery:
Kinds:
1. Art. 2200
a. actual loss
b. unrealized profit
2. Art. 2205
a.
impairment
of
earning capacity
b.
injury to business
standing
or
commercial credit
3. Art. 2206
a. fixed indemnity
b. loss
of
earning
capacity formula:
[2/3
(80-age
of
death)
x
gross
income] 2
1. in breach of contract of
carriage, there must be fraud,
bad faith, or death (Art.
2220, Jurisprudence).
2.
in case of death, heirs
entitled to moral damages.
3. only injured passengers
entitled to moral damages
due
to
his
injury
(Jurisprudence).
Factors to determine:
4. Arts. 2208-2213
a. attorneys fee
b. interest
When recoverable:
1. proof of loss, injury or
impairment.
2. proof of actual amount
thereof with reasonable degree
of certainty premised upon
competent proof.
2. degree/extent of mental
anguish (Jurisprudence).
3.
Sentimental
value
property (Art. 2218).
of
TEMPERATE
for
than
than
(Art.
When recoverable:
LIQUIDATED
EXEMPLARY
imposed
by
way
of
example or correction for
the common good (Art.
2229).
When recoverable:
1. there must be an
award of actual, moral,
temperate or liquidated
damages.
2. crime is attended by
aggravating
circumstance.
3. gross negligence in
commission
of
quasidelict.
4. contract (of carriage)
is violated in wanton,
fraudulent,
reckless,
aggressive or malevolent
manner.
When not recoverable:
1. there was good faith.
2.
employer
is
not
subsidiarily liable unless
he participated in or
abetted the crime.
-7-
2.
3.
4.
5.
6.
A. Origin/Purpose
WARSAW CONVENTION
E. Prescriptive Period (Arts. 26 & 29)
1.
3.
1.
2.
3.
2.
4.
Defense:
Exercise
of
extraordinary
diligence;
impossibility
to
prevent
damage; contributory negligence.
C. Excluded:
Under WC, to be prosecuted as quasidelict or breach of contract under New
Civil Code: refusal to bard, bumping off,
downgrading, disrespect, abusive and
insulting language, etc.
D. Limited Liability (Arts. 22-25):
1. 125,000F per passenger, unless
higher limit is agreed upon.
2. 250F
per
kilo
of
checked
baggage/good unless declaration of
higher value and added payment
made.
3. 5,000F per handcarried baggage.
Condition: no willful misconduct
Stipulation to lower limit or to exempt
from liability is void.
2.
-8-
2.
3.
Marine peril
Voluntary service
Success in whole or part
1.
3.
4.
-9-
FREIGHT FORWARDING
A. Forwarding Agent
B. Definition
Multi-modal transport operator (MTO)
means any person who concludes a multimodal contract and assumes responsibility
for the performance thereof by a carrier.
Multimodal transport contract means a
single contract for the carrier of goods by
at least two different modes of transport.
Considering the variety of cultures,
languages, and commercial practices of
both ends of the trade, it is reasonable to
let one qualified operator organize and be
responsible and accountable for the entire
transport chain (UNCTAD-ICC Rules for
Multi-modal Transport)
B. Freight Forwarder
A transport intermediary which publishes
its own tariff, issues its own bill of lading,
and assumes all responsibilities of a
common carrier without operating its own
vessel. This Nonvessel Operating Common
Carrier (NVOCC) acts a shipper in relation
to the actual carrier, and as a carrier to
the shipper. He charges for the entire
distance, and assumes responsibility for
the transportation of the goods from point
of receipt to point of destination.
ARRESTRE/STEVEDORING
A. Stevedoring means all works performed on board
vessel, such as loading or unloading cargo, stowing
inside hatches, compartments, and on decks or open
cargo spaces on bard vessel. May include other
services like:
1.
2.
3.
4.
5.
C. Cargo Consolidator
It consolidates small shipments for
various
consignors/consignees
by
procuring vessel/container space from
carriers and issuing its own bill of lading.
Its destination agents distribute the small
shipments to the consignees named in the
consolidators manifest.
2.
3.
4.
5.
CONTRACT OF TOWAGE
A. Definition
A contract for hire of services
by which a vessel is hired to
tow another vessel from one
part
to
another
for
a
consideration.
B. Entitled
Only the owner of the towing
vessel
can
ask
for
compensation for the towage.
Not the captain, even if the
owner waived the claim for
the towage, unless the owner
assigned or conveyed his
right to the captain.
- 10 -
PUBLIC SERVICE
PUBLIC UTILITIES
Renders services essential to
general public.
Impressed with public interest
and concern.
C.A. 146
(1936)
P.D. 1
(1972)
E.O.s
LTO/LTFRB (land transport)
TRB (toll road)
BOT
(transportation)
Subject to POLICE POWER which
is legislative prerogative/power
PSC
(Public Service
Commission)
NTC
(Communication)
PCG/MARINA (water
transport)
PPA (ports)
CAB (air transport)
MIAA (NAIA airport)
CAAP (other airports)
FUNCTIONS
A. Franchising/Licensing
1.
2.
3.
B. Regulation
1.
2.
1936-1972
ERB-ERC (power)
NEA (electric
cooperatives)
BPW
(power/waterworks)
CONGRESS delegates its power
and responsibilities to regulate
public utilities
NWRB (waterworks)
LWUA (water districts)
1.
2.
4.
Regulatory bodies/Administrative
and Quasi-Judicial Agencies
POTESTAS
DELEGATA
DELGARI POTEST
NON
Cancellation or suspension of
CPN/CPCN; imposition of fine.
(Reasons: e.g. unreliable service,
frequent accidents)
Due process: notice and hearing.
(Reasons: franchise is property
and not merely privilege; nonimpairment
of
contract
if
investment made).
C. Rate Fixing/Determination
3.
Special cases:
1. Local Government (Local Autonomy Code)
- franchising of tricycles
2. Special Economic Zones: CDC & SBMA
- communication franchises within their respective zones
Quasi-judicial function
Goal: balance between private
and public demands; just and
reasonable rate for both.
Fair return on investment vs.
confiscatory measures.
Affordability vs. discrimination