16.

SCHMITZ TRANSPORT & BROKERAGE CORP V TVI

FACTS:
On September 25, 1991, SYTCO Pte Ltd. Singapore shipped from the port of
Ilyichevsk, Russia on board M/V Alexander Saveliev 545 hot rolled steel sheets
in coil weighing 6,992,450 metric tons. The cargoes, which were to be discharged
at the port of Manila in favor of the consignee, Little Giant Steel Pipe Corporation
(Little Giant), were insured against all risks with Industrial Insurance Company Ltd.
(Industrial
Insurance)
under
Marine
Policy
No.
M-91-3747TIS. The vessel arrived at the port of Manila and the Philippine Ports Authority
(PPA) assigned it a place of berth at the outside breakwater at the Manila South
Harbor.
Schmitz Transport, whose services the consignee engaged to secure the requisite
clearances, to receive the cargoes from the shipside, and to deliver them to its
(the consignees) warehouse at Cainta, Rizal, in turn engaged the services
of TVI to send a barge and tugboat at shipside. TVIs tugboat Lailani towed the
barge Erika V to shipside. The tugboat, after positioning the barge alongside
the vessel, left and returned to the port terminal. Arrastre operator Ocean Terminal
Services Inc. commenced to unload 37 of the 545 coils from the vessel unto the
barge. By 12:30a.m. of October 27, 1991 during which the weather condition had
become inclement due to an approaching storm, the unloading unto the barge
of the 37 coils was accomplished. No tugboat pulled the barge back to the pier,
however. At around 5:30 a.m. of October 27, 1991, due to strong waves, the crew
of the barge abandoned it and transferred to the vessel. The barge pitched
and rolled with the waves and eventually capsized, washing the 37 coils into the
sea. Little Giant thus filed a formal claim against Industrial Insurance which paid it
the amount of P5,246,113.11.Little Giant thereupon executed a subrogation
receipt in favor of Industrial Insurance.
Industrial Insurance later filed a complaint against Schmitz Transport, TVI, and
Black Sea through its representative Inchcape (the defendants) beforethe RTC of
Manila, they faulted the defendants for undertaking the unloading of the cargoes
while typhoon signal No. 1 was raised.
The RTC held all the defendants negligent. Defendants Schmitz Transport and
TVI filed a joint motion for reconsideration assailing the finding that they are
common carriers. RTC denied the motion for reconsideration.
CA affirmed the RTC decision in toto, finding that all the defendants were common
carriers Black Sea and TVI for engaging in the transport of goods and cargoes
over the seas as a regular business and not as an isolated transaction,
and Schmitz Transport for entering into a contract with Little Giant to transport the
cargoes from ship to port for a fee.

ISSUES:1. Whether the loss of the cargoes was due to a fortuitous event,
independent of any act of negligence on the part of petitioner Black Sea and TVI,
and 2. If there was negligence, whether liability for the loss may attach to Black
Sea, petitioner and TVI.
HELD:
1. No. In order, to be considered a fortuitous event, however, (1) the cause of the
unforeseen and unexpected occurrence, or the failure of the debtor to comply with
his obligation, must be independent of human will; (2) it must be impossible to
foresee the event which constitute the casofortuito, or if it can be foreseen it must
be impossible to avoid; (3) the occurrence must be such as to render it impossible
for the debtor to fulfill his obligation in any manner; and (4) the obligor must be
free from any participation in the aggravation of the injury resulting to the creditor.
In this caseit cannot be said that the defendants were negligent in not unloading
the cargoes upon the barge on October 26, 1991 inside the breakwater and
despite the Typhoon signal Number 1 raised in Metro Manila since there no hard
evidence that such actions of petitioner was the proximate cause of the loss.
However, the fact that no tugboat towed back the barge to the pier after the
cargoes were completely loaded by 12:30 in the morningis, however, a material
fact which the appellate court failed to properly consider and appreciatethe
proximate cause of the loss of the cargoes. Had the barge been towed back
promptly to the pier, the deteriorating sea conditions notwithstanding, the loss
could have been avoided. But the barge was left floating in open sea until big
waves set in at 5:30 a.m., causing it to sink along with the cargoes. The loss thus
falls outside the act of God doctrine.
2. This Court holds then that petitioner and TVI are solidarily liable for the loss of
the cargoes while Black Sea is not liable. The petitioner is a common carrier even
if it a customs broker. For it undertook to transport the cargoes from the shipside
of M/V Alexander Saveliev to the consignees warehouse at Cainta, Rizal.
Petitioner, which did not have any barge or tugboat, engaged the services of TVI
as handler to provide the barge and the tugboat. In their Service Contract, while
Little Giant was named as the consignee, petitioner did not disclose that it was
acting on commission and was chartering the vessel for Little Giant. Little Giant
did not thus automatically become a party to the Service Contract and was not,
therefore, bound by the terms and conditions therein.
Not being a party to the service contract, Little Giant cannot directly sue TVI based
thereon but it can maintain a cause of action for negligence.
In the case of TVI, while it acted as a private carrier for which it was under no duty
to observe extraordinary diligence, it was still required to observe ordinary
diligence to ensure the proper and careful handling, care and discharge of the
carried goods.TVIs failure to promptly provide a tugboat did not only increase the
risk that might have been reasonably anticipated during the shipside operation,
but was the proximate cause of the loss.While petitioner sent checkersand a

supervisoron board the vessel to counter-check the operations of TVI, it failed to

take all available and reasonable precautions to avoid the loss. After noting that
TVI failed to arrange for the prompt towage of the barge despite the deteriorating
sea conditions, it should have summoned the same or another tugboat to extend
help, but it did not.
As for Black Sea, its duty as a common carrier extended only from the time the
goods were surrendered or unconditionally placed in its possession and received
for transportation until they were delivered actually or constructively to consignee
Little Giant.
Parties to a contract of carriage may, however, agree upon a definition of delivery
that extends the services rendered by the carrier. In the case at bar, Bill of Lading
No. 2 covering the shipment provides that delivery be made to the port of
discharge or so near thereto as she may safely get, always afloat. The delivery of
the goods to the consignee was not from pier to pier but from the shipside of
M/V Alexander Saveliev and into barges, for which reason the consignee
contracted the services of petitioner. Since Black Sea had constructively delivered
the cargoes to Little Giant, through petitioner, it had discharged its duty.
17. YOBIDO V CA
FACTS:
On April 26, 1988, spouses Tito and LenyTumboy and their minor children named
Ardee and Jasmin, boarded at Mangagoy, Surigao del Sur, a Yobido Liner bus
bound for Davao City. Along Picop Road in Km. 17, Sta. Maria, Agusan del Sur,
the left front tire of the bus exploded. The bus fell into a ravine around three (3)
feet from the road and struck a tree. The incident resulted in the death of 28-yearold Tito Tumboy and physical injuries to other passengers.
The winding road was not cemented and was wet due to the rain; it was rough
with crushed rocks. The bus which was full of passengers had cargoes on top.
Leny testified that it was running fast and she cautioned the driver to slow down
but he merely stared at her through the mirror.
However, Salce, the bus conductor, testified that the bus was running speed for
only 50-60 kmh. The left front tire that exploded was a brand new Goodyear tire
that he mounted on the bus only 5 days before the incident. She stated that all
driver applicants in Yobido Liner underwent actual driving tests before they were
employed. The defendant is invoking that the tire blowout was a caso fortuito.
RTC: The lower court rendered a decision dismissing the action for lack of merit.
The court added, the tire blowout was a caso fortuito which is completely an
extraordinary circumstance independent of the will of the defendants who should
be relieved of whatever liability the plaintiffs may have suffered by reason of the
explosion pursuant to Article 1174,of the Civil Code.

CA reasoned out that the explosion of the tire is not in itself a fortuitous event. The
fact that the cause of the blow-out was not known does not relieve the carrier of
liability. Owing to the statutory presumption of negligence against the carrier and
its obligation to exercise the utmost diligence of very cautious persons to carry the
passenger safely as far as human care andforesight can provide, it is the burden
of the defendants to prove that the cause of the blow-out was a fortuitous event. It
is not incumbent upon the plaintiff to prove that the cause of the blow-out is not
casofortuito. Proving that the tire that exploded is a new Goodyear tire is not
sufficient to discharge defendants burden. As enunciated in Necesito vs. Paras,
the passenger has neither choice nor control over the carrier in the selection and
use of its equipment, and the good repute of the manufacturer will not necessarily
relieve the carrier from liability.
ISSUE:
Whether or not the explosion of a newly installed tire of a passenger vehicle is a
fortuitous event that exempts the carrier from liability for the death of a passenger.
HELD:
NO. A fortuitous event is possessed of the following characteristics: (a) the cause
of the unforeseen and unexpected occurrence, or the failure of the debtor to
comply with his obligations, must be independent of human will; (b) it must be
impossible to foresee the event which constitutes the casofortuito, or if it can be
foreseen, it must be impossible to avoid; (c) the occurrence must be such as to
render it impossible for the debtor to fulfill his obligation in a normal manner; and
(d) the obligor must be free from any participation in the aggravation of the injury
resulting to the creditor.
Under the circumstances of this case, the explosion of the new tire may not be
considered a fortuitous event. There are human factors involved in the situation.
The fact that the tire was new did not imply that it was entirely free from
manufacturing defects or that it was properly mounted on the vehicle. Neither may
the fact that the tire bought and used in the vehicle is of a brand name noted for
quality, resulting in the conclusion that it could not explode within five days use.
Be that as it may, it is settled that an accident caused either by defects in the
automobile or through the negligence of its driver is not a casofortuito that would
exempt the carrier from liability for damages.
Moreover, a common carrier may not be absolved from liability in case of force
majeure or fortuitous event alone. The common carrier must still prove that it was
not negligent in causing the death or injury resulting from an accident. 16 This
Court has had occasion to state:While it may be true that the tire that blew-up
was still good because the grooves of the tire were still visible, this fact alone does
not make the explosion of the tire a fortuitous event. No evidence was presented

to show that the accident was due to adverse road conditions or that precautions
were taken by the jeepney driver to compensate for any conditions liable to cause
accidents. The sudden blowing-up, therefore, could have been caused by too
much air pressure injected into the tire coupled by the fact that the jeepney was
overloaded and speeding at the time of the accident.
It is interesting to note that petitioners proved through the bus conductor, Salce,
that the bus was running at 60-50 kilometers per hour only or within the
prescribed lawful speed limit. However, they failed to rebut the testimony of
LenyTumboy that the bus was running so fast that she cautioned the driver to slow
down. These contradictory facts must, therefore, be resolved in favor of liability in
view of the presumption of negligence of the carrier in the law. Coupled with this is
the established condition of the road-rough, winding and wet due to the rain. It
was incumbent upon the defense to establish that it took precautionary measures
considering partially dangerous condition of the road. As stated above, proof that
the tire was new and of good quality is not sufficient. Petitioners should have
shown that it undertook extraordinary diligence in the care of its carrier, such as
conducting daily routinary checkups of the vehicles parts.

a DC-aircraft take them to Libya with the President of the PAL as hostage and that
they be given $375,000 and six (6) armalites, otherwise they will blow up the plane
if their demands will not be met by the government and PAL
The relatives of the hijackers were allowed to board the plane but immediately
after they alighted, an armored car bumped the stairs. That commenced the battle
between the military and the hijackers which led ultimately to the liberation of the
surviving crew and the passengers, with the final score of 10 passengers and 3
hijackers dead on the spot and 3 hijackers captured. The plaintiffs filed an action
for damages. The trial court dismissed the complaints finding that all the damages
sustained in the premises were attributed to force majeure. Petitioners alleged that
the main cause of the unfortunate incident is the gross, wanton and inexcusable
negligence of PAL personnel in their failure to frisk the passengers adequately in
order to discover hidden weapons in the bodies of the6 hijackers

18. GACAL V PAL

PAL averred the security checks and measures and surveillance precautions in all
FACTS: Plaintiffs Franklin G. Gacal and his wife, Corazon M. Gacal, Bonifacio S.

flights, including the inspection of baggages and cargo and frisking of passengers

Anislag and his wife, Mansueta L. Anislag, and the late Elma de Guzman, were

at the Davao Airport were performed and rendered solely by military personnel

then passengers PALs BAC 1-11 at Davao Airport for a flight to Manila, not

who under appropriate authority had assumed exclusive jurisdiction over the same

knowing that on the same flight, Macalinog, Taurac Pendatum known as

in all airports in the Philippines

Commander Zapata, Nasser Omar, Liling Pusuan Radia, Dimantong Dimarosing

and Mike Randa, all members of the Moro National Liberation Front (MNLF), were

PAL argues that the negotiations with the hijackers were a purely government

their co-passengers, three (3) armed with grenades, two (2) with .45 caliber

matter and a military operation, handled by and subject to the absolute and

pistols, and one with a .22 caliber pistol.

exclusive jurisdiction of the military authorities. Hence, it concluded that the

10 minutes after takeoff, the hijackers brandishing their firearms announced the

ISSUE:

hijacking of the aircraft and directed its pilot to fly to Libya. With the pilot explaining
to them especially to its leader, Commander Zapata, of the inherent fuel limitations
of the plane and that they are not rated for international flights, the hijackers
directed the pilot to fly to Sabah. With the same explanation, they relented and
directed the aircraft to land at Zamboanga Airport, Zamboanga City for refuelling
The aircraft landed at at Zamboanga Airport. When the plane began to taxi at the
runway, it was met by two armored cars of the military with machine guns pointed
at the plane, and it stopped there. The rebels thru its commander demanded that

Whether or not hijacking or air piracy during martial law and under the
circumstances obtaining herein, is a casofortuito or force majeure which would
exempt an aircraft from payment of damages to its passengers whose lives were
put in jeopardy and whose personal belongings were lost during the incident.
HELD: YES. It is the duty of a common carrier to overcome the presumption of
negligence (Philippine National Railways v. Court of Appeals, 139 SCRA 87
[1985]) and it must be shown that the carrier had observed the required
extraordinary diligence of a very cautious person as far as human care and
foresight can provide or that the accident was caused by a fortuitous event
(Estrada v. Consolacion, 71 SCRA 523 [1976]). Thus, as ruled by this Court, no
person shall be responsible for those events which could not be foreseen or
which though foreseen were inevitable. (Article 1174, Civil Code). The term is

synonymous with casofortuito (Lasam v. Smith, 45 Phil. 657 [1924]) which is of the
same sense as force majeure (Words and Phrases, Permanent Edition, Vol. 17,
p. 362).
In order to constitute a casofortuito or force majeure that would exempt a person
from liability under Article 1174 of the Civil Code, it is necessary that the following
elements must concur: (a) the cause of the breach of the obligation must be
independent of the human will (the will of the debtor or the obligor); (b) the event
must be either unforeseeable or unavoidable; (c) the event must be such as to
render it impossible for the debtor to fulfill his obligation in a normal manner; and
(d) the debtor must be free from any participation in, or aggravation of the injury to
the creditor.
Under normal circumstances, PAL might have foreseen the skyjacking incident
which could have been avoided had there been a more thorough frisking of
passengers and inspection of baggages as authorized by R.A. No. 6235. But the
incident in question occurred during MartialLaw where there was a military takeover of airport security including the frisking of passengers and the inspection of
their luggage preparatory to boarding domestic and international flights. In fact
military take-over was specifically announced on October 20, 1973 by General
Jose L. Rancudo, Commanding General of the Philippine Air Force in a letter to
Brig. Gen. Jesus Singson, then Director of the Civil Aeronautics Administration
Otherwise stated, these events rendered it impossible for PAL to perform its
obligations in a normal manner and obviously it cannot be faulted with negligence
in the performance ofduty taken over by the Armed Forces of the Philippines to the
exclusion of the former.
19. NECESITO V PARAS
FACTS:
On January 28, 1954, Severin aGarces and her one-year old son, Precillano
Necesito, carrying vegetables, boarded passenger auto truck or bus No. 199 of
the Philippine Rabbit Bus Lines at Agno, Pangasinan. The passenger truck, driven
by Francisco Bandonell, then proceeded on its regular run from Agno to Manila.
After passing Mangatarem, Pangasinan, truck No. 199 entered a wooden bridge,
but the front wheels swerved to the right; the driver lost control, and after wrecking
the bridges wooden rails, the truck fell on its right side into a creek where water
was breast deep. The mother, Severina Garces, was drowned; the son, Precillano
Necesito, was injured, suffering abrasions and fracture of the left femur. He was
brought to the Provincial Hospital at Dagupan, where the fracture was set but with
fragments one centimeter out of line. The money, wrist watch and cargo of
vegetables were lost.
The Court of First Instance found that the bus was proceeding slowly due to the
bad condition of the road; that the accident was caused by the fracture of the right
steering knuckle, which was defective in that its center or core was not compact
but bubbled and cellulous, a condition that could not be known or ascertained by

the carrier despite the fact that regular thirty-day inspections were made of the
steering knuckle since the steel exterior was smooth and shiny to the depth of
3/16 of an inch all around; that the knuckles are designed and manufactured for
heavy duty and may last up to ten years; that the knuckle of bus No. 199 that
broke on January 28, 1954, was last inspected on January 5, 1954, and was due
to be inspected again on February 5th.
Hence, the trial court, holding that the accident was exclusively due to fortuitous
event, dismissed both actions. Plaintiffs appealed directly to this Court in view of
the amount in controversy
ISSUE:
Whether or not the carrier is liable for the manufacturing defect of the steering
knuckle, and whether the evidence discloses that in regard thereto the carrier
exercised the diligence required by law.
HELD: Yes it is liable. In the American law, where the carrier is held to the same
degree of diligence as under the new Civil Code, the rule on the liability of carriers
for defects of equipment is thus expressed: The preponderance of authority is in
favor of the doctrine that a passenger is entitled to recover damages from a carrier
for an injury resulting from a defect in an appliance purchased from a
manufacturer, whenever it appears that the defect would have been discovered by
the carrier if it had exercised the degree of care which under the circumstances
was incumbent upon it, with regard to inspection and application of the necessary
tests. For the purposes of this doctrine, the manufacturer is considered as being in
law the agent or servant of the carrier, as far as regards the work of constructing
the appliance. According to this theory, the good repute of the manufacturer will
not relieve the carrier from liability.
The rationale of the carriers liability is the fact that the passenger has neither
choice nor control over the carrier in the selection and use of the equipment and
appliances in use bv the carrier. Having no privity whatever with the manufacturer
or vendor of the defective equipment, the passenger has no remedy against him,
while the carrier usually has. It is but logical, therefore, that the carrier, while not
an insurer of the safety of his passengers, should nevertheless be held to answer
for the flaws of his equipment if such flaws were at all discoverable.
In the case now before us, the record is to the effect that the only test applied to
the steering knuckle in question was a purely visual inspection every thirty days, to
see if any cracks developed. It nowhere appears that either the manufacturer or
the carrier at any time tested the steering knuckle to ascertain whether its strength
was up to standard, or that it had no hidden flaws that would impair that strength.
Also the rule prevailing in this jurisdiction as established in previous decisions of
this Court, cited in our main opinion, is that a carrier is liable to its passengers for
damages caused by mechanical defects of the conveyance.
In view of the foregoing, the decision appealed from is reversed, and the

defendants-appellees are sentenced to indemnify the plaintiffs-appellants in the

following amounts: P5,000 to Precillan oNecesito, and P15,000 to the heirs of the
deceased Severina Garces, plus P3,500 by way of attorneys fees and litigation
expenses. Costs against defendants-appellees.
20. GANZON V CA
FACTS: The private respondent instituted in the Court of First Instance of
Manilaan action against the petitioner for damages based on culpa contractual.
On November 28, 1956, Gelacio Tumambing contracted the services of Mauro B.
Ganzon to haul 305 tons of scrap iron from Mariveles, Bataan, to the port of
Manila on board the lighter LCT Batman. Pursuant to this agreement, Mauro B.
Ganzon sent his lighter Batman to Mariveles where it docked in three feet of
water. On December 1, 1956, Gelacio Tumambing delivered the scrap iron to
defendant Filomeno Niza, captain of the lighter, for loading which was actually
begun on the same date by the crew of the lighter under the captains supervision.
When about half of the scrap iron was already loaded, Mayor Jose Advincula of
Mariveles, Bataan, arrived and demanded P5,000.00 from Gelacio Tumambing.
The latter resisted the shakedown and after a heated argument between them,
Mayor Jose Advincula drew his gun and fired at GelacioTumambing. The gunshot
was not fatal but Tumambing had to be taken to a hospital in Balanga, Bataan, for
treatment.
After sometime, the loading of the scrap iron was resumed. But on December 4,
1956, Acting Mayor Basilio Rub, accompanied by three policemen, ordered
captain FilomenoNiza and his crew to dump the scrap iron where the lighter was
docked. The rest was brought to the compound of NASSCO. Later on Acting
Mayor Rub issued a receipt stating that the Municipality of Mariveles had taken
custody of the scrap iron.
CA decided: WHEREFORE, the decision appealed from is hereby reversed and
set aside and a new one entered ordering defendant-appellee Mauro Ganzon to
pay plaintiff-appellant Gelacio E. Tumambing the sum of P5,895.00 as actual
damages, the sum of P5,000.00 as exemplary damages, and the amount of
P2,000.00 as attorneys fees. Costs against defendant-appellee Ganzon.

ANY LOSSES AS A CONSEQUENCE THEREOF.

HELD:
On the first issue, the petitioner insists that the scrap iron had not been
unconditionally placed under his custody and control to make- him liable.
However, he completely agrees with the respondent Courts finding that on
December 1, 1956, the private respondent delivered the scraps to Captain
FilomenoNiza for loading in the lighter Batman. That the petitioner, thru his
employees, actually received the scraps is freely admitted. Significantly, there is
not the slightest allegation or showing of any condition, qualification, or restriction
accompanying the delivery by the private respondent-shipper of the scraps, or the
receipt of the same by the petitioner. On the contrary, soon after the scraps were
delivered to and received by the petitioner-common carrier, loading was
commenced. Thus, the scraps were unconditionally placed in the possession and
control of the common carrier, and upon their receipt by the carrier for
transportation, the contract of carriage was deemed perfected.
Consequently, the petitioner-carriers extraordinary responsibility for the loss,
destruction, or deterioration of the goods commenced, Pursuant to Art. 1736, such
extraordinary responsibility would cease only upon the delivery, actual or
constructive, by the carrier to the consignee, or to the person who has a right to
receive them. The petitioner has failed to show that the loss of the scraps was due
to any of the following causes enumerated in Article 1734 of the Civil Code,
namely:
(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;
(2) Act of the public enemy in war, whether international or civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or in the containers;
(5) Order or act of competent public authority.
Hence, the petitioner is presumed to have been at fault or to have acted

ISSUES:

negligently.By reason of this presumption, the court is not even required to make

I THE COURT OF APPEALS FINDING THE HEREIN PETITIONER GUILTY OF BREACH OF

THE CONTRACT OF TRANSPORTATION AND IN IMPOSING A LIABILITY AGAINST HIM
COMMENCING FROM THE TIME THE SCRAP WAS PLACED IN HIS CUSTODY AND
CONTROL HAVE NO BASIS IN FACT AND IN LAW.

an express finding of fault or negligence before it could hold the petitioner

II THE APPELLATE COURT ERRED IN CONDEMNING THE PETITIONER FOR THE ACTS OF
HIS EMPLOYEES IN DUMPING THE SCRAP INTO THE SEA DESPITE THAT IT WAS
ORDERED BY THE LOCAL GOVERNMENT OFFICIAL WITHOUT HIS PARTICIPATION.
III THE APPELLATE COURT FAILED TO CONSIDER THAT THE LOSS OF THE SCRAP WAS
DUE TO A FORTUITOUS EVENT AND THE PETITIONER IS THEREFORE NOT LIABLE FOR

answerable for the breach of the contract of carriage. Still, the petitioner could
have been exempted from any liability had he been able to prove that he observed
extraordinary diligence in the vigilance over the goods in his custody, according to
all the circumstances or the case, or that the loss was due to an unforseen event
or toforce majeure but there is no attempt from the petitioner to prove such fact.

On the second and third issues, the SC did not sustain the theory of casofortuito.
In the courts below, the petitioners defense was that the loss of the scraps was
due to an order or act of competent public authority, and this contention was
correctly passed upon by the Court of Appeals which ruled that:x x x In the second
place, before the appellee Ganzon could be absolved from responsibility on the
ground that he was ordered by competent public authority to unload the scrap
iron, it must be shown that Acting Mayor Basilio Rub had the power to issue the
disputed order, or that it was lawful, or that it was issued under legal process of
authority. The appellee failed to establish this. Indeed, no authority or power of the
acting mayor to issue such an order was given in evidence. Neither has it been
shown that the cargo of scrap iron belonged to the Municipality of Mariveles. The
fact remains that the order given by the acting mayor to dump the scrap iron into
the sea was part of the pressure applied by Mayor Jose Advincula to shakedown
the appellant for P5,000.00. The order of the acting mayor did not constitute valid
authority for appellee Mauro Ganzon and his representatives to carry out.

The SC cannot allow the change of theory on appeal of petitioner but in any case,
the intervention of the municipal officials was not of a character that would render
impossible the fulfillment by the carrier of its obligation. The petitioner was not duty
bound to obey the illegal order to dump into the sea the scrap iron. Moreover,
there is absence of sufficient proof that the issuance of the same order was
attended with such force or intimidation as to completely overpower the will of the
petitioners employees. The mere difficulty in the fulfillment of the obligation is not
consideredforce majeure.We agree with the private respondent that the scraps
could have been properly unloaded at the shore or at the NASSCO compound, so
that after the dispute with the local officials concerned was settled, the scraps
could then be delivered in accordance with the contract of carriage.