Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 193707 December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN
WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the Orders1 dated February 19, 2010 and September 1, 2010, respectively, of
the Regional Trial Court of Cebu City (RTC-Cebu), which dismissed the criminal case entitled
People of the Philippines v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case No.
CBU-85503, for violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence
Against Women and Their Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted
marriage in Holland on September 25, 1990.2 On January 19, 1994, they were blessed with a son
named Roderigo Norjo Van Wilsem, who at the time of the filing of the instant petition was sixteen
(16) years of age.3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by
the appropriate Court of Holland.4 At that time, their son was only eighteen (18) months
old.5 Thereafter, petitioner and her son came home to the Philippines.6

According to petitioner, respondent made a promise to provide monthly support to their son in the
amount of Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or
less).7 However, since the arrival of petitioner and her son in the Philippines, respondent never gave
support to the son, Roderigo.8

Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and
since then, have been residing thereat.9 Respondent and his new wife established a business known
as Paree Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu City.10 To date,
all the parties, including their son, Roderigo, are presently living in Cebu City.11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from
respondent. However, respondent refused to receive the letter.12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial
Prosecutor of Cebu City against respondent for violation of Section 5, paragraph E(2) of R.A. No.
9262 for the latter’s unjust refusal to support his minor child with petitioner.13 Respondent submitted
his counter-affidavit thereto, to which petitioner also submitted her reply-affidavit.14 Thereafter, the
Provincial Prosecutor of Cebu City issued a Resolution recommending the filing of an information for
the crime charged against herein respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that:

That sometime in the year 1995 and up to the present, more or less, in the Municipality of
Minglanilla, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully and deliberately deprive, refuse and
still continue to deprive his son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor,
of financial support legally due him, resulting in economic abuse to the victim. CONTRARY TO
LAW.15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against
respondent.16Consequently, respondent was arrested and, subsequently, posted bail.17 Petitioner
also filed a Motion/Application of Permanent Protection Order to which respondent filed his
Opposition.18 Pending the resolution thereof, respondent was arraigned.19 Subsequently, without the
RTC-Cebu having resolved the application of the protection order, respondent filed a Motion to
Dismiss on the ground of: (1) lack of jurisdiction over the offense charged; and (2) prescription of the
crime charged.20

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21 dismissing the instant
criminal case against respondent on the ground that the facts charged in the information do not
constitute an offense with respect to the respondent who is an alien, the dispositive part of which
states:

WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense
with respect to the accused, he being an alien, and accordingly, orders this case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty is
hereby cancelled (sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010.22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation
to support their child under Article 19523 of the Family Code, thus, failure to do so makes him liable
under R.A. No. 9262 which "equally applies to all persons in the Philippines who are obliged to
support their minor children regardless of the obligor’s nationality."24

On September 1, 2010, the lower court issued an Order25 denying petitioner’s Motion for
Reconsideration and reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced earlier in the
memorandum of the prosecution. Thus, the court hereby reiterates its ruling that since the accused
is a foreign national he is not subject to our national law (The Family Code) in regard to a parent’s
duty and obligation to givesupport to his child. Consequently, he cannot be charged of violating R.A.
9262 for his alleged failure to support his child. Unless it is conclusively established that R.A. 9262
applies to a foreigner who fails to give support tohis child, notwithstanding that he is not bound by
our domestic law which mandates a parent to give such support, it is the considered opinion of the
court that no prima faciecase exists against the accused herein, hence, the case should be
dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010.26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child under
Philippine law; and

2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his
unjustified failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the
fact that the same was directly lodged with the Supreme Court, consistent with the ruling in Republic
v. Sunvar Realty Development Corporation,28 which lays down the instances when a ruling of the trial
court may be brought on appeal directly to the Supreme Court without violating the doctrine of
hierarchy of courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this
Court, in case only questions of law are raised or involved. This latter situation was one that
petitioners found themselves in when they filed the instant Petition to raise only questions of law. In
Republic v. Malabanan, the Court clarified the three modes of appeal from decisions of the RTC, to
wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was rendered
in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a petition for
review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under Rule 45.
"The first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed questions
of fact and law. The second mode of appeal is brought to the CA on questions of fact, of law, or
mixed questions of fact and law. The third mode of appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)

There is a question of law when the issue does not call for an examination of the probative value of
the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt
concerns the correct application of law and jurisprudence on the matter. The resolution of the issue
must rest solely on what the law provides on the given set of circumstances.29

Indeed, the issues submitted to us for resolution involve questions of law – the response thereto
concerns the correct application of law and jurisprudence on a given set of facts, i.e.,whether or not
a foreign national has an obligation to support his minor child under Philippine law; and whether or
not he can be held criminally liable under R.A. No. 9262 for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question of law
concerning the liability of a foreign national who allegedly commits acts and omissions punishable
under special criminal laws, specifically in relation to family rights and duties. The inimitability of the
factual milieu of the present case, therefore, deserves a definitive ruling by this Court, which will
eventually serve as a guidepost for future cases. Furthermore, dismissing the instant petition and
remanding the same to the CA would only waste the time, effort and resources of the courts. Thus,
in the present case, considerations of efficiency and economy in the administration of justice should
prevail over the observance of the hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do
not fully agree with petitioner’s contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that
the legal obligation to support exists.

Petitioner invokes Article 19530 of the Family Code, which provides the parent’s obligation to support
his child. Petitioner contends that notwithstanding the existence of a divorce decree issued in
relation to Article 26 of the Family Code,31 respondent is not excused from complying with his
obligation to support his minor child with petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis presented by
petitioner that she, as well as her minor son, are entitled to financial support.32 Respondent also
added that by reason of the Divorce Decree, he is not obligated topetitioner for any financial
support.33

On this point, we agree with respondent that petitioner cannot rely on Article 19534 of the New Civil
Code in demanding support from respondent, who is a foreign citizen, since Article 1535 of the New
Civil Code stresses the principle of nationality. In other words, insofar as Philippine laws are
concerned, specifically the provisions of the Family Code on support, the same only applies to
Filipino citizens. By analogy, the same principle applies to foreigners such that they are governed by
their national law with respect to family rights and duties.36

The obligation to give support to a child is a matter that falls under family rights and duties. Since the
respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject
to the laws of his country, not to Philippinelaw, as to whether he is obliged to give support to his
child, as well as the consequences of his failure to do so.37

In the case of Vivo v. Cloribel,38 the Court held that –

Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of
the Philippines, for that Code cleaves to the principle that family rights and duties are governed by
their personal law, i.e.,the laws of the nation to which they belong even when staying in a foreign
country (cf. Civil Code, Article 15).39

It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under
Article195 of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This
does not, however, mean that respondent is not obliged to support petitioner’s son altogether.

In international law, the party who wants to have a foreign law applied to a dispute or case has the
burden of proving the foreign law.40 In the present case, respondent hastily concludes that being a
national of the Netherlands, he is governed by such laws on the matter of provision of and capacity
to support.41 While respondent pleaded the laws of the Netherlands in advancing his position that he
is not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not
impose upon the parents the obligation to support their child (either before, during or after the
issuance of a divorce decree), because Llorente v. Court of Appeals,42 has already enunciated that:

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
takejudicial notice of them. Like any other fact, they must be alleged and proved.43

In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine
of processual presumption shall govern. Under this doctrine, if the foreign law involved is not
properly pleaded and proved, our courts will presume that the foreign law is the same as our local or
domestic or internal law.44 Thus, since the law of the Netherlands as regards the obligation to support
has not been properly pleaded and proved in the instant case, it is presumed to be the same with
Philippine law, which enforces the obligation of parents to support their children and penalizing the
non-compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce obtained in a foreign land as
well as its legal effects may be recognized in the Philippines in view of the nationality principle on the
matter of status of persons, the Divorce Covenant presented by respondent does not completely
show that he is notliable to give support to his son after the divorce decree was issued. Emphasis is
placed on petitioner’s allegation that under the second page of the aforesaid covenant, respondent’s
obligation to support his child is specifically stated,46 which was not disputed by respondent.

We likewise agree with petitioner that notwithstanding that the national law of respondent states that
parents have no obligation to support their children or that such obligation is not punishable by law,
said law would still not find applicability,in light of the ruling in Bank of America, NT and SA v.
American Realty Corporation,47 to wit:

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded
and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid
down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy
of the forum, the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle imbedded in our
jurisdiction proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application would work undeniable injustice to
the citizens or residents of the forum. To give justice is the most important function of law; hence, a
law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of
Laws.48
Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to
support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable
in the Philippines because it would be of great injustice to the child to be denied of financial support
when the latter is entitled thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his
former wife, in consonance with the ruling in San Luis v. San Luis,49 to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe
considered marriedto the alien spouse. Further, she should not be required to perform her marital
duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be discriminated against in her own
country if the ends of justice are to be served. (Emphasis added)50

Based on the foregoing legal precepts, we find that respondent may be made liable under Section
5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give support topetitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against
women and their children is committed through any of the following acts:

xxxx

(e) Attempting to compel or compelling the woman or her child to engage in conduct which the
woman or her child has the right to desist from or desist from conduct which the woman or her child
has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom
of movement or conduct by force or threat of force, physical or other harm or threat of physical or
other harm, or intimidation directed against the woman or child. This shall include, butnot limited to,
the following acts committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:

xxxx

(2) Depriving or threatening to deprive the woman or her children of financial support legally due her
or her family, or deliberately providing the woman's children insufficient financial support; x x x x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or
custody of minor childrenof access to the woman's child/children.51

Under the aforesaid special law, the deprivation or denial of financial support to the child is
considered anact of violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find strength in
petitioner’s claim that the Territoriality Principle in criminal law, in relation to Article 14 of the New
Civil Code, applies to the instant case, which provides that: "[p]enal laws and those of public security
and safety shall be obligatory upon all who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty stipulations." On this score, it is indisputable that the
alleged continuing acts of respondent in refusing to support his child with petitioner is committed
here in the Philippines as all of the parties herein are residents of the Province of Cebu City. As
such, our courts have territorial jurisdiction over the offense charged against respondent. It is
likewise irrefutable that jurisdiction over the respondent was acquired upon his arrest.

Finally, we do not agree with respondent’s argument that granting, but not admitting, that there is a
legal basis for charging violation of R.A. No. 9262 in the instant case, the criminal liability has been
extinguished on the ground of prescription of crime52 under Section 24 of R.A. No. 9262, which
provides that:

SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty
(20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing
offense,53 which started in 1995 but is still ongoing at present. Accordingly, the crime charged in the
instant case has clearly not prescribed.

Given, however, that the issue on whether respondent has provided support to petitioner’s child calls
for an examination of the probative value of the evidence presented, and the truth and falsehood of
facts being admitted, we hereby remand the determination of this issue to the RTC-Cebu which has
jurisdiction over the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1,
2010, respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET
ASIDE. The case is REMANDED to the same court to conduct further proceedings based on the
merits of the case.

SO ORDERED.

NORMA DEL SOCORRO V. WILSEM CASE DIGEST - CIVIL

LAW
DEL SOCORRO VS. WILSEM G.R. No. 193707 December 10, 2014

FACTS:

Norma A. Del Socorro and Ernst Van Wilsem contracted marriage in Holland. They were blessed
with a son named Roderigo Norjo Van Wilsem. Unfortunately, their marriage bond ended by
virtue of a Divorce Decree issued by the appropriate Court of Holland. Thereafter, Norma and her
son came home to the Philippines. According to Norma, Ernst made a promise to provide monthly
support to their son. However, since the arrival of petitioner and her son in the Philippines, Ernst
never gave support to Roderigo.Respondent remarried again a Filipina and resides again the
Philippines particulary in Cebu where the petitioner also resides. Norma filed a complaint against
Ernst for violation of R.A. No. 9262 for the latter’s unjust refusal to support his minor child with
petitioner. The trial court dismissed the complaint since the facts charged in the information do
not constitute an offense with respect to the accused, he being an alien

ISSUES:

1. Does a foreign national have an obligation to support his minor child under the Philippine law?
2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his
unjustified failure to support his minor child.

RULING:

1. YES. While it is true that Respondent Ernst is a citizen of Holland or the Netherlands, we agree
with the RTC that he is subject to the laws of his country, not to Philippine law, as to whether he
is obliged to give support to his child, as well as the consequences of his failure to do so. This
does not, however, mean that Ernst is not obliged to support Norma’s son altogether. In
international law, the party who wants to have a foreign law applied to a dispute or case has the
burden of proving the foreign law. In the present case, Ernst hastily concludes that being a
national of the Netherlands, he is governed by such laws on the matter of provision of and
capacity to support. While Ernst pleaded the laws of the Netherlands in advancing his position
that he is not obliged to support his son, he never proved the same. It is incumbent upon Ernst
to plead and prove that the national law of the Netherlands does not impose upon the parents
the obligation to support their child. Foreign laws do not prove themselves in our jurisdiction and
our courts are not authorized to take judicial notice of them. Like any other fact, they must be
alleged and proved. Moreover, foreign law should not be applied when its application would
work undeniable injustice to the citizens or residents of the forum. To give justice is the most
important function of law; hence, a law, or judgment or contract that is obviously unjust negates
the fundamental principles of Conflict of Laws. Applying the foregoing, even if the laws of the
Netherlands neither enforce a parent’s obligation to support his child nor penalize the non-
compliance therewith, such obligation is still duly enforceable in the Philippines because it would
be of great injustice to the child to be denied of financial support when the latter is entitled
thereto.

2. YES. The court has jurisdiction over the offense (R.A 9262) because the foreigner is living here
in the Philippines and committed the offense here.
 SECOND DIVISION

[G.R. No. 119602. October 6, 2000]

WILDVALLEY SHIPPING CO., LTD. petitioner, vs. COURT OF APPEALS

and PHILIPPINE PRESIDENT LINES INC., respondents.

DECISION
BUENA, J.:

This is a petition for review on certiorari seeking to set aside the decision of the Court
of Appeals which reversed the decision of the lower court in CA-G.R. CV No. 36821,
entitled "Wildvalley Shipping Co., Ltd., plaintiff-appellant, versus Philippine President
Lines, Inc., defendant-appellant."
The antecedent facts of the case are as follows:
Sometime in February 1988, the Philippine Roxas, a vessel owned by Philippine
President Lines, Inc., private respondent herein, arrived in Puerto Ordaz, Venezuela, to
load iron ore. Upon the completion of the loading and when the vessel was ready to leave
port, Mr. Ezzar del Valle Solarzano Vasquez, an official pilot of Venezuela, was
designated by the harbour authorities in Puerto Ordaz to navigate the Philippine Roxas
through the Orinoco River.[1] He was asked to pilot the said vessel on February 11,
1988[2] boarding it that night at 11:00 p.m.[3]
The master (captain) of the Philippine Roxas, Captain Nicandro Colon, was at the
bridge together with the pilot (Vasquez), the vessel's third mate (then the officer on
watch), and a helmsman when the vessel left the port [4] at 1:40 a.m. on February 12,
1988.[5] Captain Colon left the bridge when the vessel was under way. [6]
The Philippine Roxas experienced some vibrations when it entered the San Roque
Channel at mile 172.[7] The vessel proceeded on its way, with the pilot assuring the watch
officer that the vibration was a result of the shallowness of the channel.[8]
Between mile 158 and 157, the vessel again experienced some vibrations. [9] These
occurred at 4:12 a.m.[10] It was then that the watch officer called the master to the bridge.[11]
The master (captain) checked the position of the vessel[12] and verified that it was in
the centre of the channel.[13] He then went to confirm, or set down, the position of the
vessel on the chart.[14]He ordered Simplicio A. Monis, Chief Officer of the President Roxas,
to check all the double bottom tanks.[15]
At around 4:35 a.m., the Philippine Roxas ran aground in the Orinoco River,[16] thus
obstructing the ingress and egress of vessels.
 As a result of the blockage, the Malandrinon, a vessel owned by herein petitioner
Wildvalley Shipping Company, Ltd., was unable to sail out of Puerto Ordaz on that day.
Subsequently, Wildvalley Shipping Company, Ltd. filed a suit with the Regional Trial
Court of Manila, Branch III against Philippine President Lines, Inc. and Pioneer Insurance
Company (the underwriter/insurer of Philippine Roxas) for damages in the form of
unearned profits, and interest thereon amounting to US $400,000.00 plus attorney's fees,
costs, and expenses of litigation. The complaint against Pioneer Insurance Company was
dismissed in an Order dated November 7, 1988.[17]
At the pre-trial conference, the parties agreed on the following facts:

"1. The jurisdictional facts, as specified in their respective pleadings;

"2. That defendant PPL was the owner of the vessel Philippine Roxas at the time of
the incident;

"3. That defendant Pioneer Insurance was the insurance underwriter for defendant
PPL;

"4. That plaintiff Wildvalley Shipping Co., Inc. is the owner of the vessel
Malandrinon, whose passage was obstructed by the vessel Philippine Roxas at Puerto
Ordaz, Venezuela, as specified in par. 4, page 2 of the complaint;

"5. That on February 12, 1988, while the Philippine Roxas was navigating the channel
at Puerto Ordaz, the said vessel grounded and as a result, obstructed navigation at the
channel;

"6. That the Orinoco River in Puerto Ordaz is a compulsory pilotage channel;

"7. That at the time of the incident, the vessel, Philippine Roxas, was under the
command of the pilot Ezzar Solarzano, assigned by the government thereat, but
plaintiff claims that it is under the command of the master;

"8. The plaintiff filed a case in Middleburg, Holland which is related to the present
case;

"9. The plaintiff caused the arrest of the Philippine Collier, a vessel owned by the
defendant PPL;

"10. The Orinoco River is 150 miles long and it takes approximately 12 hours to
navigate out of the said river;
"11. That no security for the plaintiff's claim was given until after the Philippine
Collier was arrested; and

"12. That a letter of guarantee, dated 12-May-88 was issued by the Steamship Mutual
Underwriters Ltd."[18]

The trial court rendered its decision on October 16, 1991 in favor of the petitioner,
Wildvalley Shipping Co., Ltd. The dispositive portion thereof reads as follows:

"WHEREFORE, judgment is rendered for the plaintiff, ordering defendant Philippine

President Lines, Inc. to pay to the plaintiff the sum of U.S. $259,243.43, as actual and
compensatory damages, and U.S. $162,031.53, as expenses incurred abroad for its
foreign lawyers, plus additional sum of U.S. $22,000.00, as and for attorney's fees of
plaintiff's local lawyer, and to pay the cost of this suit.

"Defendant's counterclaim is dismissed for lack of merit.

"SO ORDERED."[19]

Both parties appealed: the petitioner appealing the non-award of interest with the
private respondent questioning the decision on the merits of the case.
After the requisite pleadings had been filed, the Court of Appeals came out with its
questioned decision dated June 14, 1994,[20] the dispositive portion of which reads as
follows:

"WHEREFORE, finding defendant-appellant's appeal to be meritorious, judgment is

hereby rendered reversing the Decision of the lower court. Plaintiff-appellant's
Complaint is dismissed and it is ordered to pay defendant-appellant the amount of
Three Hundred Twenty-three Thousand, Forty-two Pesos and Fifty-three Centavos
(P323,042.53) as and for attorney's fees plus cost of suit. Plaintiff-appellant's appeal is
DISMISSED.

"SO ORDERED."[21]

Petitioner filed a motion for reconsideration[22] but the same was denied for lack of merit in the
resolution dated March 29, 1995.[23]

Hence, this petition.

The petitioner assigns the following errors to the court a quo:
1. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT
UNDER PHILIPPINE LAW NO FAULT OR NEGLIGENCE CAN BE ATTRIBUTED TO
THE MASTER NOR THE OWNER OF THE "PHILIPPINE ROXAS" FOR THE
GROUNDING OF SAID VESSEL RESULTING IN THE BLOCKAGE OF THE RIO
ORINOCO;
 2. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN REVERSING THE
FINDINGS OF FACTS OF THE TRIAL COURT CONTRARY TO EVIDENCE;
3. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE
"PHILIPPINE ROXAS" IS SEAWORTHY;
4. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DISREGARDING
VENEZUELAN LAW DESPITE THE FACT THAT THE SAME HAS BEEN
SUBSTANTIALLY PROVED IN THE TRIAL COURT WITHOUT ANY OBJECTION
FROM PRIVATE RESPONDENT, AND WHOSE OBJECTION WAS INTERPOSED
BELATEDLY ON APPEAL;
5. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN AWARDING
ATTORNEY'S FEES AND COSTS TO PRIVATE RESPONDENT WITHOUT ANY
FAIR OR REASONABLE BASIS WHATSOEVER;
6. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT
PETITIONER'S CAUSE IS MERITORIOUS HENCE, PETITIONER SHOULD BE
ENTITLED TO ATTORNEY'S FEES, COSTS AND INTEREST.
The petition is without merit.
The primary issue to be determined is whether or not Venezuelan law is applicable
to the case at bar.
It is well-settled that foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to take judicial notice of them. Like any other fact, they must be
alleged and proved.[24]
A distinction is to be made as to the manner of proving a written and an unwritten
law. The former falls under Section 24, Rule 132 of the Rules of Court, as amended, the
entire provision of which is quoted hereunder. Where the foreign law sought to be proved
is "unwritten," the oral testimony of expert witnesses is admissible, as are printed and
published books of reports of decisions of the courts of the country concerned if proved
to be commonly admitted in such courts.[25]
Section 24 of Rule 132 of the Rules of Court, as amended, provides:

"Sec. 24. Proof of official record. -- The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by
an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. If the office in
which the record is kept is in a foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office."
(Underscoring supplied)

The court has interpreted Section 25 (now Section 24) to include competent evidence
like the testimony of a witness to prove the existence of a written foreign law. [26]
 In the noted case of Willamette Iron & Steel Works vs. Muzzal,[27] it was held that:

" Mr. Arthur W. Bolton, an attorney-at-law of San Francisco, California, since the
year 1918 under oath, quoted verbatim section 322 of the California Civil Code and
stated that said section was in force at the time the obligations of defendant to the
plaintiff were incurred, i.e. on November 5, 1928 and December 22, 1928.This
evidence sufficiently established the fact that the section in question was the law of
the State of California on the above dates. A reading of sections 300 and 301 of our
Code of Civil Procedure will convince one that these sections do not exclude the
presentation of other competent evidence to prove the existence of a foreign law.

"`The foreign law is a matter of fact You ask the witness what the law is; he may,
from his recollection, or on producing and referring to books, say what it is.' (Lord
Campbell concurring in an opinion of Lord Chief Justice Denman in a well-known
English case where a witness was called upon to prove the Roman laws of marriage
and was permitted to testify, though he referred to a book containing the decrees of
the Council of Trent as controlling, Jones on Evidence, Second Edition, Volume 4,
pages 3148-3152.) x x x.

We do not dispute the competency of Capt. Oscar Leon Monzon, the Assistant Harbor
Master and Chief of Pilots at Puerto Ordaz, Venezuela, [28] to testify on the existence of
the Reglamento General de la Ley de Pilotaje (pilotage law of Venezuela)[29] and
the Reglamento Para la Zona de Pilotaje No 1 del Orinoco (rules governing the navigation
of the Orinoco River). Captain Monzon has held the aforementioned posts for eight
years.[30] As such he is in charge of designating the pilots for maneuvering and navigating
the Orinoco River. He is also in charge of the documents that come into the office of the
harbour masters.[31]
Nevertheless, we take note that these written laws were not proven in the manner
provided by Section 24 of Rule 132 of the Rules of Court.
The Reglamento General de la Ley de Pilotaje was published in the Gaceta
Oficial[32]of the Republic of Venezuela. A photocopy of the Gaceta Oficial was presented
in evidence as an official publication of the Republic of Venezuela.
The Reglamento Para la Zona de Pilotaje No 1 del Orinoco is published in a book
issued by the Ministerio de Comunicaciones of Venezuela.[33] Only a photocopy of the
said rules was likewise presented as evidence.
Both of these documents are considered in Philippine jurisprudence to be public
documents for they are the written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers of Venezuela. [34]
For a copy of a foreign public document to be admissible, the following requisites are
mandatory: (1) It must be attested by the officer having legal custody of the records or by
his deputy; and (2) It must be accompanied by a certificate by a secretary of the embassy
or legation, consul general, consul, vice consular or consular agent or foreign service
officer, and with the seal of his office.[35] The latter requirement is not a mere technicality
but is intended to justify the giving of full faith and credit to the genuineness of a document
in a foreign country.[36]
It is not enough that the Gaceta Oficial, or a book published by the Ministerio de
Comunicaciones of Venezuela, was presented as evidence with Captain Monzon
attesting it. It is also required by Section 24 of Rule 132 of the Rules of Court that a
certificate that Captain Monzon, who attested the documents, is the officer who had legal
custody of those records made by a secretary of the embassy or legation, consul general,
consul, vice consul or consular agent or by any officer in the foreign service of the
Philippines stationed in Venezuela, and authenticated by the seal of his office
accompanying the copy of the public document. No such certificate could be found in the
records of the case.
With respect to proof of written laws, parol proof is objectionable, for the written law
itself is the best evidence. According to the weight of authority, when a foreign statute is
involved, the best evidence rule requires that it be proved by a duly authenticated copy
of the statute.[37]
At this juncture, we have to point out that the Venezuelan law was not pleaded before
the lower court.
A foreign law is considered to be pleaded if there is an allegation in the pleading about
the existence of the foreign law, its import and legal consequence on the event or
transaction in issue.[38]
A review of the Complaint[39] revealed that it was never alleged or invoked despite the
fact that the grounding of the M/V Philippine Roxas occurred within the territorial
jurisdiction of Venezuela.
We reiterate that under the rules of private international law, a foreign law must be
properly pleaded and proved as a fact. In the absence of pleading and proof, the laws of
a foreign country, or state, will be presumed to be the same as our own local or domestic
law and this is known as processual presumption.[40]
Having cleared this point, we now proceed to a thorough study of the errors assigned
by the petitioner.
Petitioner alleges that there was negligence on the part of the private respondent that
would warrant the award of damages.
There being no contractual obligation, the private respondent is obliged to give only
the diligence required of a good father of a family in accordance with the provisions of
Article 1173 of the New Civil Code, thus:

Art. 1173. The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. When negligence shows
bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a good father of a family shall be required.

The diligence of a good father of a family requires only that diligence which an
ordinary prudent man would exercise with regard to his own property. This we have found
private respondent to have exercised when the vessel sailed only after the "main engine,
machineries, and other auxiliaries" were checked and found to be in good running
condition;[41] when the master left a competent officer, the officer on watch on the bridge
with a pilot who is experienced in navigating the Orinoco River; when the master ordered
the inspection of the vessel's double bottom tanks when the vibrations occurred anew.[42]
The Philippine rules on pilotage, embodied in Philippine Ports Authority
Administrative Order No. 03-85, otherwise known as the Rules and Regulations
Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports
enunciate the duties and responsibilities of a master of a vessel and its pilot, among other
things.
The pertinent provisions of the said administrative order governing these persons are
quoted hereunder:

Sec. 11. Control of Vessels and Liability for Damage. -- On compulsory pilotage
grounds, the Harbor Pilot providing the service to a vessel shall be responsible for the
damage caused to a vessel or to life and property at ports due to his negligence or
fault. He can be absolved from liability if the accident is caused by force majeure or
natural calamities provided he has exercised prudence and extra diligence to prevent
or minimize the damage.

The Master shall retain overall command of the vessel even on pilotage grounds
whereby he can countermand or overrule the order or command of the Harbor Pilot on
board. In such event, any damage caused to a vessel or to life and property at ports by
reason of the fault or negligence of the Master shall be the responsibility and liability
of the registered owner of the vessel concerned without prejudice to recourse against
said Master.

Such liability of the owner or Master of the vessel or its pilots shall be determined by
competent authority in appropriate proceedings in the light of the facts and
circumstances of each particular case.

xxx

Sec. 32. Duties and Responsibilities of the Pilots or Pilots Association. -- The duties
and responsibilities of the Harbor Pilot shall be as follows:

xxx
f) A pilot shall be held responsible for the direction of a vessel from the time he
assumes his work as a pilot thereof until he leaves it anchored or berthed safely;
Provided, however, that his responsibility shall cease at the moment the Master
neglects or refuses to carry out his order."

The Code of Commerce likewise provides for the obligations expected of a captain of
a vessel, to wit:

Art. 612. The following obligations shall be inherent in the office of captain:

xxx

"7. To be on deck on reaching land and to take command on entering and leaving
ports, canals, roadsteads, and rivers, unless there is a pilot on board discharging his
duties. x x x.

The law is very explicit. The master remains the overall commander of the vessel
even when there is a pilot on board. He remains in control of the ship as he can still
perform the duties conferred upon him by law[43] despite the presence of a pilot who is
temporarily in charge of the vessel. It is not required of him to be on the bridge while the
vessel is being navigated by a pilot.
However, Section 8 of PPA Administrative Order No. 03-85, provides:

Sec. 8. Compulsory Pilotage Service - For entering a harbor and anchoring thereat, or
passing through rivers or straits within a pilotage district, as well as docking and
undocking at any pier/wharf, or shifting from one berth or another, every vessel
engaged in coastwise and foreign trade shall be under compulsory pilotage.

xxx.
The Orinoco River being a compulsory pilotage channel necessitated the engaging
of a pilot who was presumed to be knowledgeable of every shoal, bank, deep and shallow
ends of the river.In his deposition, pilot Ezzar Solarzano Vasquez testified that he is an
official pilot in the Harbour at Port Ordaz, Venezuela, [44] and that he had been a pilot for
twelve (12) years.[45] He also had experience in navigating the waters of the Orinoco
River.[46]
The law does provide that the master can countermand or overrule the order or
command of the harbor pilot on board. The master of the Philippine Roxas deemed it best
not to order him (the pilot) to stop the vessel,[47] mayhap, because the latter had assured
him that they were navigating normally before the grounding of the vessel. [48] Moreover,
the pilot had admitted that on account of his experience he was very familiar with the
configuration of the river as well as the course headings, and that he does not even refer
to river charts when navigating the Orinoco River.[49]
 Based on these declarations, it comes as no surprise to us that the master chose not
to regain control of the ship. Admitting his limited knowledge of the Orinoco River, Captain
Colon relied on the knowledge and experience of pilot Vasquez to guide the vessel safely.

Licensed pilots, enjoying the emoluments of compulsory pilotage, are in a different

class from ordinary employees, for they assume to have a skill and a knowledge of
navigation in the particular waters over which their licenses extend superior to that of
the master; pilots are bound to use due diligence and reasonable care and skill. A
pilot's ordinary skill is in proportion to the pilot's responsibilities, and implies a
knowledge and observance of the usual rules of navigation, acquaintance with the
waters piloted in their ordinary condition, and nautical skill in avoiding all known
obstructions. The character of the skill and knowledge required of a pilot in charge of
a vessel on the rivers of a country is very different from that which enables a
navigator to carry a vessel safely in the ocean. On the ocean, a knowledge of the rules
of navigation, with charts that disclose the places of hidden rocks, dangerous shores,
or other dangers of the way, are the main elements of a pilot's knowledge and
skill. But the pilot of a river vessel, like the harbor pilot, is selected for the individual's
personal knowledge of the topography through which the vessel is steered."[50]

We find that the grounding of the vessel is attributable to the pilot. When the vibrations
were first felt the watch officer asked him what was going on, and pilot Vasquez replied
that "(they) were in the middle of the channel and that the vibration was as (sic) a result
of the shallowness of the channel."[51]
Pilot Ezzar Solarzano Vasquez was assigned to pilot the vessel Philippine Roxas as
well as other vessels on the Orinoco River due to his knowledge of the same. In his
experience as a pilot, he should have been aware of the portions which are shallow and
which are not. His failure to determine the depth of the said river and his decision to plod
on his set course, in all probability, caused damage to the vessel. Thus, we hold him as
negligent and liable for its grounding.
In the case of Homer Ramsdell Transportation Company vs. La Compagnie
Generale Transatlantique, 182 U.S. 406, it was held that:

x x x The master of a ship, and the owner also, is liable for any injury done by the
negligence of the crew employed in the ship. The same doctrine will apply to the case
of a pilot employed by the master or owner, by whose negligence any injury happens
to a third person or his property: as, for example, by a collision with another ship,
occasioned by his negligence. And it will make no difference in the case that the pilot,
if any is employed, is required to be a licensed pilot; provided the master is at liberty
to take a pilot, or not, at his pleasure, for in such a case the master acts voluntarily,
although he is necessarily required to select from a particular class. On the other
hand, if it is compulsive upon the master to take a pilot, and, a fortiori, if he is
bound to do so under penalty, then, and in such case, neither he nor the owner
will be liable for injuries occasioned by the negligence of the pilot; for in such a
case the pilot cannot be deemed properly the servant of the master or the owner, but is
forced upon them, and the maxim Qui facit per alium facit per se does not apply."
(Underscoring supplied)

Anent the river passage plan, we find that, while there was none,[52] the voyage has been
sufficiently planned and monitored as shown by the following actions undertaken by the pilot, Ezzar
Solarzano Vasquez, to wit:contacting the radio marina via VHF for information regarding the channel, river
traffic,[53] soundings of the river, depth of the river, bulletin on the buoys. [54] The officer on watch also
monitored the voyage.[55]

We, therefore, do not find the absence of a river passage plan to be the cause for the
grounding of the vessel.
The doctrine of res ipsa loquitur does not apply to the case at bar because the
circumstances surrounding the injury do not clearly indicate negligence on the part of the
private respondent. For the said doctrine to apply, the following conditions must be
met: (1) the accident was of such character as to warrant an inference that it would not
have happened except for defendant's negligence; (2) the accident must have been
caused by an agency or instrumentality within the exclusive management or control of the
person charged with the negligence complained of; and (3) the accident must not have
been due to any voluntary action or contribution on the part of the person injured. [56]
As has already been held above, there was a temporary shift of control over the ship
from the master of the vessel to the pilot on a compulsory pilotage channel. Thus, two of
the requisites necessary for the doctrine to apply, i.e., negligence and control, to render
the respondent liable, are absent.
As to the claim that the ship was unseaworthy, we hold that it is not.
The Lloyds Register of Shipping confirmed the vessels seaworthiness in a
Confirmation of Class issued on February 16, 1988 by finding that "the above named ship
(Philippine Roxas) maintained the class "+100A1 Strengthened for Ore Cargoes, Nos. 2
and 8 Holds may be empty (CC) and +LMC" from 31/12/87 up until the time of casualty
on or about 12/2/88."[57] The same would not have been issued had not the vessel been
built according to the standards set by Lloyd's.
Samuel Lim, a marine surveyor, at Lloyd's Register of Shipping testified thus:
"Q Now, in your opinion, as a surveyor, did top side tank have any bearing at all to the
seaworthiness of the vessel?
"A Well, judging on this particular vessel, and also basing on the class record of the vessel,
wherein recommendations were made on the top side tank, and it was given sufficient
time to be repaired, it means that the vessel is fit to travel even with those defects on the
ship.
"COURT
What do you mean by that? You explain. The vessel is fit to travel even with defects? Is that
what you mean? Explain.
"WITNESS
 "A Yes, your Honor. Because the class society which register (sic) is the third party looking
into the condition of the vessel and as far as their record states, the vessel was class or
maintained, and she is fit to travel during that voyage."
xxx
"ATTY. MISA
Before we proceed to other matter, will you kindly tell us what is (sic) the 'class +100A1
Strengthened for Ore Cargoes', mean?
"WITNESS
"A Plus 100A1 means that the vessel was built according to Lloyd's rules and she is capable
of carrying ore bulk cargoes, but she is particularly capable of carrying Ore Cargoes with
No. 2 and No. 8 holds empty.
xxx
"COURT
The vessel is classed, meaning?
"A Meaning she is fit to travel, your Honor, or seaworthy."[58]
It is not required that the vessel must be perfect. To be seaworthy, a ship must be
reasonably fit to perform the services, and to encounter the ordinary perils of the voyage,
contemplated by the parties to the policy.[59]
As further evidence that the vessel was seaworthy, we quote the deposition of pilot
Vasquez:
"Q Was there any instance when your orders or directions were not complied with because of
the inability of the vessel to do so?
"A No.
"Q. Was the vessel able to respond to all your commands and orders?
"A. The vessel was navigating normally.[60]
Eduardo P. Mata, Second Engineer of the Philippine Roxas submitted an accident
report wherein he stated that on February 11, 1988, he checked and prepared the main
engine, machineries and all other auxiliaries and found them all to be in good running
condition and ready for maneuvering. That same day the main engine, bridge and engine
telegraph and steering gear motor were also tested.[61] Engineer Mata also prepared the
fuel for consumption for maneuvering and checked the engine generators. [62]
Finally, we find the award of attorneys fee justified.
Article 2208 of the New Civil Code provides that:

"Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation,
other than judicial costs, cannot be recovered, except:

xxx
"(11) In any other case where the court deems it just and equitable that attorney's fees
and expenses of litigation should be recovered.

xxx
Due to the unfounded filing of this case, the private respondent was unjustifiably
forced to litigate, thus the award of attorneys fees was proper.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED and the
decision of the Court of Appeals in CA G.R. CV No. 36821 is AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and De leon, Jr., JJ., concur.

Wild Valley v CA

Facts:
Philippine Roxas (owned by Phil. Pres. Lines), vessel, arrived in Venezuela to load iron ore. When vessel
was ready to leave the port, Mr. Vasquez (official pilot of Venezuela) was designated to navigate the
vessel through the Orinoco River.

The master of the vessel, Captain Colon, was at the bridge with the pilot when the vessel left the port.
Captain Colon left the bridge when the vessel was underway.

The vessel experienced some vibrations but the pilot assured that they were just a result of the
shallowness of the vessel. The vessel again experienced vibrations which led to the vessel being run
aground in the Orinoco River, obstructing the ingress and egress of vessels.

As a result of the blockage, the Malandrinon (vessel owned by Wildvalley Shipping) was unable to sail
out that day. For this reason, Wild Valley commenced an action for damages.

Issue:
1. Whether or not fault can be attributed to the master(captain) of Philippine Roxas for the grounding of
said vessel.

2. Whether or not the doctrine of res ipsa loquitor applies.

Held:
1. No. It's the pilot's fault!

There being no contractual obligation, the master was only required to give ordinary diligence in
accordance with Article 1173 of the New Civil Code. In the case, the master exercised due diligence
when the vessel sailed only after the main engine, machine rise and other auxiliaries were checked and
found to be in good running condition and when the master left a competent officer - the pilot who is
experienced in navigating the Orinoco River.

Philippine rules on pilotage enunciate the duties and responsibilities of a master of a vessel and its pilot.
The law is explicit in saying that the master remains the overall commander of the vessel even when
there is a pilot on board. He remains in control despite the presence of a pilot who is temporarily in
charge of the vessel. It is NOT required of him to be on bridge while the vessel is being navigated by a
pilot.

Furthermore, the Orinoco River being a compulsory pilotage channel necessitated the engaging of a
pilot who was presumed to be knowledgeable of every shoal, bank, deep and shallow ends of the river.
Admitting his limited knowledge of the River, Captain Colon deemed it best to rely on the knowledge
and experience of pilot Vasquez to guide the vessel safely.

The pilot should have been aware of the portions which are shallow and which are not. His failure to
determine the depth of the river and his decision to plod on his set course, in all probability, caused
damage to the vessel. Thus, he is negligent and liable for the grounding.

2. NO. The elements of res ipsa loquitor are:

-accident was of such character as to warrant inference that it would not have happened except for
defendant's negligence
-accident must have been caused by an agency/instrumentality within the exclusive management or
control of the person charged with the negligence complained of
-accident must not have been due to any voluntary action or contribution on the part of the person
injured.

There was a temporary shift of control over the ship from the master to the pilot on a compulsory
pilotage channel. Thus, requisites 1 and 2 (negligence and control) are not present in the following
situation.
 SECOND DIVISION

CRESCENT PETROLEUM, LTD., G.R. No. 155014 Petitioner,

Present:
Puno, J.,
- versus - Chairman,
Austria-Martinez,
Callejo, Sr.,
Tinga, and
*
Chico-Nazario, JJ.
M/V LOK MAHESHWARI,
THE SHIPPING CORPORATION
OF INDIA, and PORTSERV LIMITED Promulgated:
and/or TRANSMAR SHIPPING, INC.,
Respondents. November 11, 2005
x--------------------------------------------------x

DECISION

PUNO, J.:

This petition for review on certiorari under Rule 45 seeks the (a) reversal of the
November 28, 2001 Decision of the Court of Appeals in CA-G.R. No. CV-
54920,[1] which dismissed for want of jurisdiction the instant case, and the
September 3, 2002 Resolution of the same appellate court,[2] which denied
petitioners motion for reconsideration, and (b) reinstatement of the July 25, 1996
Decision[3] of the Regional Trial Court (RTC) in Civil Case No. CEB-18679, which
held that respondents were solidarily liable to pay petitioner the sum prayed for in
the complaint.
The facts are as follows: Respondent M/V Lok Maheshwari (Vessel) is an
oceangoing vessel of Indian registry that is owned by respondent Shipping

Corporation of India (SCI), a corporation organized and existing under the laws of
India and principally owned by the Government of India. It was time-chartered by
respondent SCI to Halla Merchant Marine Co. Ltd. (Halla), a South Korean

company. Halla, in turn, sub-chartered the Vessel through a time charter to Transmar
Shipping, Inc. (Transmar). Transmar further sub-chartered the Vessel to Portserv
Limited (Portserv). Both Transmar and Portserv are corporations organized and
existing under the laws of Canada.

On or about November 1, 1995, Portserv requested petitioner Crescent

Petroleum, Ltd. (Crescent), a corporation organized and existing under the laws of

Canada that is engaged in the business of selling petroleum and oil products for the
use and operation of oceangoing vessels, to deliver marine fuel oils (bunker fuels)
to the Vessel. Petitioner Crescent granted and confirmed the request through an

advice via facsimile dated November 2, 1995. As security for the payment of the
bunker fuels and related services, petitioner Crescent received two (2) checks in the
amounts of US$100,000.00 and US$200,000.00. Thus, petitioner Crescent

contracted with its supplier, Marine Petrobulk Limited (Marine Petrobulk), another
Canadian corporation, for the physical delivery of the bunker fuels to the Vessel.

On or about November 4, 1995, Marine Petrobulk delivered the bunker fuels

amounting to US$103,544 inclusive of barging and demurrage charges to the Vessel

at the port of Pioneer Grain, Vancouver, Canada. The Chief Engineer Officer of the
Vessel duly acknowledged and received the delivery receipt. Marine Petrobulk
issued an invoice to petitioner Crescent for the US$101,400.00 worth of the bunker

fuels. Petitioner Crescent issued a check for the same amount in favor of Marine
Petrobulk, which check was duly encashed.

Having paid Marine Petrobulk, petitioner Crescent issued a revised invoice

dated November 21, 1995 to Portserv Limited, and/or the Master, and/or Owners,
and/or Operators, and/or Charterers of M/V Lok Maheshwari in the amount of
US$103,544.00 with instruction to remit the amount on or before December 1, 1995.
The period lapsed and several demands were made but no payment was received.
Also, the checks issued to petitioner Crescent as security for the payment of the
bunker fuels were dishonored for insufficiency of funds. As a consequence,

petitioner Crescent incurred additional expenses of US$8,572.61 for interest,

tracking fees, and legal fees.
On May 2, 1996, while the Vessel was docked at the port of Cebu City,

petitioner Crescent instituted before the RTC of Cebu City an action for a sum of
money with prayer for temporary restraining order and writ of preliminary
attachment against respondents Vessel and SCI, Portserv and/or Transmar. The case

was raffled to Branch 10 and docketed as Civil Case No. CEB-18679.

On May 3, 1996, the trial court issued a writ of attachment against the Vessel
with bond at P2,710,000.00. Petitioner Crescent withdrew its prayer for a temporary

restraining order and posted the required bond.

On May 18, 1996, summonses were served to respondents Vessel and SCI, and
Portserv and/or Transmar through the Master of the Vessel. On May 28, 1996,

respondents Vessel and SCI, through Pioneer Insurance and Surety Corporation
(Pioneer), filed an urgent ex-parte motion to approve Pioneers letter of undertaking,
to consider it as counter-bond and to discharge the attachment. On May 29, 1996,

the trial court granted the motion; thus, the letter of undertaking was approved as
counter-bond to discharge the attachment.

For failing to file their respective answers and upon motion of petitioner Crescent,
the trial court declared respondents Vessel and SCI, Portserv and/or Transmar in
default. Petitioner Crescent was allowed to present its evidence ex-parte.
On July 25, 1996, the trial court rendered its decision in favor of petitioner Crescent,

thus:
WHEREFORE, premises considered, judgment is hereby
rendered in favor of plaintiff [Crescent] and against the defendants
[Vessel, SCI, Portserv and/or Transmar].

Consequently, the latter are hereby ordered to pay plaintiff jointly and
solidarily, the following:

(a) the sum of US$103,544.00, representing the

outstanding obligation;

(b) interest of US$10,978.50 as of July 3, 1996, plus

additional interest at 18% per annum for the period
thereafter, until the principal account is fully paid;
(c) attorneys fees of P300,000.00; and

(d) P200,000.00 as litigation expenses.

SO ORDERED.
 On August 19, 1996, respondents Vessel and SCI appealed to the Court of

Appeals. They attached copies of the charter parties between respondent SCI and
Halla, between Halla and Transmar, and between Transmar and Portserv. They
pointed out that Portserv was a time charterer and that there is a clause in the time

charters between respondent SCI and Halla, and between Halla and Transmar, which
states that the Charterers shall provide and pay for all the fuel except as otherwise
agreed. They submitted a copy of Part II of the Bunker Fuel Agreement between
petitioner Crescent and Portserv containing a stipulation that New York law governs
the construction, validity and performance of the contract. They likewise submitted
certified copies of the Commercial Instruments and Maritime Lien Act of the United
States (U.S.), some U.S. cases, and some Canadian cases to support their defense.

On November 28, 2001, the Court of Appeals issued its assailed Decision,
which reversed that of the trial court, viz:
WHEREFORE, premises considered, the Decision dated July
25, 1996, issued by the Regional Trial Court of Cebu City, Branch 10,
is hereby REVERSED and SET ASIDE, and a new one is entered
DISMISSING the instant case for want of jurisdiction.

The appellate court denied petitioner Crescents motion for reconsideration

explaining that it dismissed the instant action primarily on the ground of forum non
conveniensconsidering that the parties are foreign corporations which are not doing
business in the Philippines.
Hence, this petition submitting the following issues for resolution, viz:
1. Philippine courts have jurisdiction over a foreign vessel found
inside Philippine waters for the enforcement of a maritime lien
against said vessel and/or its owners and operators;

2. The principle of forum non conveniens is inapplicable to the

instant case;

3. The trial court acquired jurisdiction over the subject matter of

the instant case, as well as over the res and over the persons of
the parties;

4. The enforcement of a maritime lien on the subject vessel is

expressly granted by law. The Ship Mortgage Acts as well as
the Code of Commerce provides for relief to petitioner for its
unpaid claim;

5. The arbitration clause in the contract was not rigid or inflexible

but expressly allowed petitioner to enforce its maritime lien in
Philippine courts provided the vessel was in the Philippines;

6. The law of the state of New York is inapplicable to the present

controversy as the same has not been properly pleaded and
proved;

7. Petitioner has legal capacity to sue before Philippine courts as

it is suing upon an isolated business transaction;

8. Respondents were duly served summons although service of

summons upon respondents is not a jurisdictional requirement,
the action being a suit quasi in rem;

9. The trial courts decision has factual and legal bases; and,

10. The respondents should be held jointly and solidarily liable.

 In a nutshell, this case is for the satisfaction of unpaid supplies furnished by
a foreign supplier in a foreign port to a vessel of foreign registry that is owned,

chartered and sub-chartered by foreign entities.

Under Batas Pambansa Bilang 129, as amended by Republic Act No. 7691,
RTCs exercise exclusive original jurisdiction (i)n all actions in admiralty and

maritime where the demand or claim exceeds two hundred thousand pesos
(P200,000) or in Metro Manila, where such demand or claim exceeds four hundred
thousand pesos (P400,000). Two (2) tests have been used to determine whether a
case involving a contract comes within the admiralty and maritime jurisdiction of a
court - the locational test and the subject matter test. The English rule follows the
locational test wherein maritime and admiralty jurisdiction, with a few exceptions,

is exercised only on contracts made upon the sea and to be executed thereon. This is
totally rejected under the American rule where the criterion in determining whether
a contract is maritime depends on the nature and subject matter of the contract,

having reference to maritime service and transactions.[4] In International

Harvester Company of the Philippines v. Aragon,[5] we adopted the American
rule and held that (w)hether or not a contract is maritime depends not on the place

where the contract is made and is to be executed, making the locality the test, but on
the subject matter of the contract, making the true criterion a maritime service or a
maritime transaction.
 A contract for furnishing supplies like the one involved in this case is maritime
and within the jurisdiction of admiralty.[6] It may be invoked before our courts

through an action in rem or quasi in rem or an action in personam. Thus: [7]

xxx
Articles 579 and 584 [of the Code of Commerce] provide a
method of collecting or enforcing not only the liens created under
Section 580 but also for the collection of any kind of lien
whatsoever.[8] In the Philippines, we have a complete legislation, both
substantive and adjective, under which to bring an action in
rem against a vessel for the purpose of enforcing liens. The substantive
law is found in Article 580 of the Code of Commerce. The procedural
law is to be found in Article 584 of the same Code. The result is,
therefore, that in the Philippines any vessel even though it be a foreign
vessel found in any port of this Archipelago may be attached and sold
under the substantive law which defines the right, and the procedural
law contained in the Code of Commerce by which this right is to be
enforced.[9] x x x. But where neither the law nor the contract between
the parties creates any lien or charge upon the vessel, the only way in
which it can be seized before judgment is by pursuing the remedy
relating to attachment under Rule 59 [now Rule 57] of the Rules of
Court.[10]

But, is petitioner Crescent entitled to a maritime lien under our laws?

Petitioner Crescent bases its claim of a maritime lien on Sections

21, 22 and 23 of Presidential Decree No. 1521 (P.D. No. 1521), also known as
the Ship Mortgage Decree of 1978, viz:
Sec. 21. Maritime Lien for Necessaries; persons entitled to such
lien. - Any person furnishing repairs, supplies, towage, use of dry dock
or maritime railway, or other necessaries, to any vessel, whether
foreign or domestic, upon the order of the owner of such vessel, or of
a person authorized by the owner, shall have a maritime lien on the
vessel, which may be enforced by suit in rem, and it shall be necessary
to allege or prove that credit was given to the vessel.
 Sec. 22. Persons Authorized to Procure Repairs, Supplies and
Necessaries. - The following persons shall be presumed to have
authority from the owner to procure repairs, supplies, towage, use of
dry dock or marine railway, and other necessaries for the vessel: The
managing owner, ships husband, master or any person to whom the
management of the vessel at the port of supply is entrusted. No person
tortuously or unlawfully in possession or charge of a vessel shall have
authority to bind the vessel.

Sec. 23. Notice to Person Furnishing Repairs, Supplies and

Necessaries. - The officers and agents of a vessel specified in Section
22 of this Decree shall be taken to include such officers and agents
when appointed by a charterer, by an owner pro hac vice, or by an
agreed purchaser in possession of the vessel; but nothing in this Decree
shall be construed to confer a lien when the furnisher knew, or by
exercise of reasonable diligence could have ascertained, that because
of the terms of a charter party, agreement for sale of the vessel, or for
any other reason, the person ordering the repairs, supplies, or other
necessaries was without authority to bind the vessel therefor.

Petitioner Crescent submits that these provisions apply to both domestic and
foreign vessels, as well as domestic and foreign suppliers of necessaries. It contends
that the use of the term any person in Section 21 implies that the law is not restricted
to domestic suppliers but also includes all persons who supply provisions and
necessaries to a vessel, whether foreign or domestic. It points out further that the law
does not indicate that the supplies or necessaries must be furnished in the Philippines
in order to give petitioner the right to seek enforcement of the lien with a Philippine
court.[11]

Respondents Vessel and SCI, on the other hand, maintain that Section 21 of
the P.D. No. 1521 or the Ship Mortgage Decree of 1978 does not apply to a foreign
supplier like petitioner Crescent as the provision refers only to a situation where the
person furnishing the supplies is situated inside the territory of the Philippines and

not where the necessaries were furnished in a foreign jurisdiction like Canada.[12]

We find against petitioner Crescent.

I.

P.D. No. 1521 or the Ship Mortgage Decree of 1978 was enacted to accelerate
the growth and development of the shipping industry and to extend the benefits
accorded to overseas shipping under Presidential Decree No. 214 to domestic
shipping.[13] It is patterned closely from the U.S. Ship Mortgage Act of 1920 and the
Liberian Maritime Law relating to preferred mortgages.[14] Notably, Sections 21, 22
and 23 of P.D. No. 1521 or the Ship Mortgage Decree of 1978 are identical to

Subsections P, Q, and R, respectively, of the U.S. Ship Mortgage Act of 1920, which
is part of the Federal Maritime Lien Act. Hence, U.S. jurisprudence finds relevance
to determining whether P.D. No. 1521 or the Ship Mortgage Decree of 1978 applies

in the present case.

The various tests used in the U.S. to determine whether a maritime lien exists
are the following:

One. In a suit to establish and enforce a maritime lien for supplies furnished
to a vessel in a foreign port, whether such lien exists, or whether the court has or will
exercise jurisdiction, depends on the law of the country where the supplies were
furnished, which must be pleaded and proved.[15] This principle was laid down in
the 1888 case of The Scotia,[16] reiterated in The Kaiser Wilhelm II[17] (1916),
in The Woudrichem[18] (1921) and in The City of Atlanta[19] (1924).

Two. The Lauritzen-Romero-Rhoditis trilogy of cases, which replaced

such single-factor methodologies as the law of the place of supply.[20]

In Lauritzen v. Larsen,[21] a Danish seaman, while temporarily in New York,

joined the crew of a ship of Danish flag and registry that is owned by a Danish
citizen. He signed the ships articles providing that the rights of the crew members
would be governed by Danish law and by the employers contract with the Danish
Seamens Union, of which he was a member. While in Havana and in the course of
his employment, he was negligently injured. He sued the shipowner in a federal
district court in New York for damages under the Jones Act. In holding that Danish

law and not the Jones Act was applicable, the Supreme Court adopted a multiple-
contact test to determine, in the absence of a specific Congressional directive as to
the statutes reach, which jurisdictions law should be applied. The following factors

were considered: (1) place of the wrongful act; (2) law of the flag; (3) allegiance

or domicile of the injured; (4) allegiance of the defendant shipowner; (5) place
of contract; (6) inaccessibility of foreign forum; and (7) law of the forum.

Several years after Lauritzen, the U.S. Supreme Court in the case of Romero
v. International Terminal Operating Co.[22] again considered a foreign seamans
personal injury claim under both the Jones Act and the general maritime law. The
Court held that the factors first announced in the case of Lauritzen were applicable
not only to personal injury claims arising under the Jones Act but to all matters
arising under maritime law in general.[23]

Hellenic Lines, Ltd. v. Rhoditis[24] was also a suit under the Jones Act by a
Greek seaman injured aboard a ship of Greek registry while in American waters. The
ship was operated by a Greek corporation which has its largest office in New York

and another office in New Orleans and whose stock is more than 95% owned by a
U.S. domiciliary who is also a Greek citizen. The ship was engaged in regularly
scheduled runs between various ports of the U.S. and the Middle East, Pakistan, and
India, with its entire income coming from either originating or terminating in the
U.S. The contract of employment provided that Greek law and a Greek collective
bargaining agreement would apply between the employer and the seaman and that

all claims arising out of the employment contract were to be adjudicated by a Greek
court. The U.S. Supreme Court observed that of the seven factors listed in the
Lauritzen test, four were in favor of the shipowner and against jurisdiction. In

arriving at the conclusion that the Jones Act applies, it ruled that the application of
the Lauritzen test is not a mechanical one. It stated thus: [t]he significance of one or
more factors must be considered in light of the national interest served by the

assertion of Jones Act jurisdiction. (footnote omitted) Moreover, the list of seven
factors in Lauritzen was not intended to be exhaustive. x x x [T]he shipowners base
of operations is another factor of importance in determining whether the Jones Act

is applicable; and there well may be others.

 The principles enunciated in these maritime tort cases have been extended to
cases involving unpaid supplies and necessaries such as the

cases of Forsythe International U.K., Ltd. v. M/V Ruth Venture,[25] and Comoco

Marine Services v. M/V El Centroamericano.[26]

Three. The factors provided in Restatement (Second) of Conflicts of

Law have also been applied, especially in resolving cases brought under the Federal
Maritime Lien Act. Their application suggests that in the absence of an effective
choice of law by the parties, the forum contacts to be considered include: (a) the
place of contracting; (b) the place of negotiation of the contract; (c) the place of
performance; (d) the location of the subject matter of the contract; and (e) the
domicile, residence, nationality, place of incorporation and place of business of the

parties.[27]

In Gulf Trading and Transportation Co. v. The Vessel Hoegh

Shield,[28] an admiralty action in rem was brought by an American supplier against

a vessel of Norwegian flag owned by a Norwegian Company and chartered by a

London time charterer for unpaid fuel oil and marine diesel oil delivered while the
vessel was in U.S. territory. The contract was executed in London. It was held that

because the bunker fuel was delivered to a foreign flag vessel within the jurisdiction
of the U.S., and because the invoice specified payment in the U.S., the admiralty and
maritime law of the U.S. applied. The U.S. Court of Appeals recognized the modern

approach to maritime conflict of law problems introduced in the Lauritzen case.

However, it observed that Lauritzen involved a torts claim under the Jones Act while
the present claim involves an alleged maritime lien arising from unpaid supplies. It
made a disclaimer that its conclusion is limited to the unique circumstances

surrounding a maritime lien as well as the statutory directives found in the Maritime
Lien Statute and thatthe initial choice of law determination is significantly
affected by the statutory policies surrounding a maritime lien. It ruled that the

facts in the case call for the application of the Restatement (Second) of Conflicts of
Law. The U.S. Court gave much significance to the congressional intent in enacting
the Maritime Lien Statute to protect the interests of American supplier of goods,
services or necessaries by making maritime liens available where traditional services
are routinely rendered. It concluded that the Maritime Lien Statute represents a
relevant policy of the forum that serves the needs of the international legal system
as well as the basic policies underlying maritime law. The court also gave equal
importance to the predictability of result and protection of justified expectations in
a particular field of law. In the maritime realm, it is expected that when necessaries

are furnished to a vessel in an American port by an American supplier, the American

Lien Statute will apply to protect that supplier regardless of the place where the
contract was formed or the nationality of the vessel.

The same principle was applied in the case of Swedish Telecom Radio v.
M/V Discovery I[29] where the American court refused to apply the Federal
Maritime Lien Act to create a maritime lien for goods and services supplied by

foreign companies in foreign ports. In this case, a Swedish company supplied radio
equipment in a Spanish port to refurbish a Panamanian vessel damaged by fire. Some
of the contract negotiations occurred in Spain and the agreement for supplies
between the parties indicated Swedish companys willingness to submit to Swedish

law. The ship was later sold under a contract of purchase providing for the
application of New York law and was arrested in the U.S. The U.S. Court of Appeals
also held that while the contacts-based framework set forth in Lauritzen was useful

in the analysis of all maritime choice of law situations, the factors were geared
towards a seamans injury claim. As in Gulf Trading, the lien arose by operation of
law because the ships owner was not a party to the contract under which the goods
were supplied. As a result, the court found it more appropriate to consider the factors
contained in Section 6 of the Restatement (Second) of Conflicts of Law. The U.S.
Court held that the primary concern of the Federal Maritime Lien Act is the
protection of American suppliers of goods and services.

The same factors were applied in the case of Ocean Ship Supply, Ltd. v.
M/V Leah.[30]

II.

Finding guidance from the foregoing decisions, the Court cannot sustain
petitioner Crescents insistence on the application of P.D. No. 1521 or the Ship

Mortgage Decree of 1978 and hold that a maritime lien exists.

First. Out of the seven basic factors listed in the case of Lauritzen, Philippine
law only falls under one the law of the forum. All other elements are foreign Canada
is the place of the wrongful act, of the allegiance or domicile of the injured and the
place of contract; India is the law of the flag and the allegiance of the defendant
shipowner. Balancing these basic interests, it is inconceivable that the Philippine

court has any interest in the case that outweighs the interests of Canada or India for
that matter.

Second. P.D. No. 1521 or the Ship Mortgage Decree of 1978 is inapplicable

following the factors under Restatement (Second) of Conflict of Laws. Like the
Federal Maritime Lien Act of the U.S., P.D. No. 1521 or the Ship Mortgage Decree
of 1978 was enacted primarily to protect Filipino suppliers and was not intended to
create a lien from a contract for supplies between foreign entities delivered in a
foreign port.

Third. Applying P.D. No. 1521 or the Ship Mortgage Decree of 1978 and rule

that a maritime lien exists would not promote the public policy behind the enactment
of the law to develop the domestic shipping industry. Opening up our courts to
foreign suppliers by granting them a maritime lien under our laws even if they are

not entitled to a maritime lien under their laws will encourage forum shopping.

Finally. The submission of petitioner is not in keeping with the reasonable

expectation of the parties to the contract. Indeed, when the parties entered into a

contract for supplies in Canada, they could not have intended the laws of a remote
country like the Philippines to determine the creation of a lien by the mere accident
of the Vessels being in Philippine territory.

III.
But under which law should petitioner Crescent prove the existence of its maritime
lien?

In light of the interests of the various foreign elements involved, it is clear that
Canada has the most significant interest in this dispute. The injured party is a
Canadian corporation, the sub-charterer which placed the orders for the supplies is

also Canadian, the entity which physically delivered the bunker fuels is in Canada,
the place of contracting and negotiation is in Canada, and the supplies were delivered
in Canada.

The arbitration clause contained in the Bunker Fuel Agreement which states
that New York law governs the construction, validity and performance of the
contract is only a factor that may be considered in the choice-of-law analysis but is

not conclusive. As in the cases of Gulf Trading and Swedish Telecom, the lien that
is the subject matter of this case arose by operation of law and not by contract
because the shipowner was not a party to the contract under which the goods were

supplied.

It is worthy to note that petitioner Crescent never alleged and proved Canadian
law as basis for the existence of a maritime lien. To the end, it insisted on its theory

that Philippine law applies. Petitioner contends that even if foreign law applies, since
the same was not properly pleaded and proved, such foreign law must be presumed
to be the same as Philippine law pursuant to the doctrine of processual presumption.
 Thus, we are left with two choices: (1) dismiss the case for petitioners failure
to establish a cause of action[31] or (2) presume that Canadian law is the same as

Philippine law. In either case, the case has to be dismissed.

It is well-settled that a party whose cause of action or defense depends upon

a foreign law has the burden of proving the foreign law. Such foreign law is treated

as a question of fact to be properly pleaded and proved.[32] Petitioner Crescents

insistence on enforcing a maritime lien before our courts depended on the existence
of a maritime lien under the proper law. By erroneously claiming a maritime lien
under Philippine law instead of proving that a maritime lien exists under Canadian
law, petitioner Crescent failed to establish a cause of action.[33]

Even if we apply the doctrine of processual presumption, the result will still

be the same. Under P.D. No. 1521 or the Ship Mortgage Decree of 1978, the
following are the requisites for maritime liens on necessaries to exist: (1) the
necessaries must have been furnished to and for the benefit of the vessel; (2) the

necessaries must have been necessary for the continuation of the voyage of the
vessel; (3) the credit must have been extended to the vessel; (4) there must be
necessity for the extension of the credit; and (5) the necessaries must be ordered by

persons authorized to contract on behalf of the vessel.[34] These do not avail in the
instant case.

First. It was not established that benefit was extended to the vessel. While
this is presumed when the master of the ship is the one who placed the order, it is
not disputed that in this case it was the sub-charterer Portserv which placed the
orders to petitioner Crescent.[35]Hence, the presumption does not arise and it is

incumbent upon petitioner Crescent to prove that benefit was extended to the vessel.
Petitioner did not.

Second. Petitioner Crescent did not show any proof that the marine products

were necessary for the continuation of the vessel.

Third. It was not established that credit was extended to the vessel. It is
presumed that in the absence of fraud or collusion, where advances are made to a
captain in a foreign port, upon his request, to pay for necessary repairs or supplies
to enable his vessel to prosecute her voyage, or to pay harbor dues, or for pilotage,
towage and like services rendered to the vessel, that they are made upon the credit

of the vessel as well as upon that of her owners.[36] In this case, it was the sub-
charterer Portserv which requested for the delivery of the bunker fuels. The issuance
of two checks amounting to US$300,000 in favor of petitioner Crescent prior to the

delivery of the bunkers as security for the payment of the obligation weakens
petitioner Crescents contention that credit was extended to the Vessel.

We also note that when copies of the charter parties were submitted by

respondents in the Court of Appeals, the time charters between respondent SCI and
Halla and between Halla and Transmar were shown to contain a clause which states
that the Charterers shall provide and pay for all the fuel except as otherwise agreed.
This militates against petitioner Crescents position that Portserv is authorized by the
shipowner to contract for supplies upon the credit of the vessel.

Fourth. There was no proof of necessity of credit. A necessity of credit will

be presumed where it appears that the repairs and supplies were necessary for the
ship and that they were ordered by the master. This presumption does not arise in

this case since the fuels were not ordered by the master and there was no proof of
necessity for the supplies.

Finally. The necessaries were not ordered by persons authorized to contract

in behalf of the vessel as provided under Section 22 of P.D. No. 1521 or the Ship
Mortgage Decree of 1978 - the managing owner, the ships husband, master or any
person with whom the management of the vessel at the port of supply is entrusted.

Clearly, Portserv, a sub-charterer under a time charter, is not someone to whom the
management of the vessel has been entrusted. A time charter is a contract for the use
of a vessel for a specified period of time or for the duration of one or more specified

voyages wherein the owner of the time-chartered vessel retains possession and
control through the master and crew who remain his employees.[37] Not enjoying the
presumption of authority, petitioner Crescent should have proved that Portserv was

authorized by the shipowner to contract for supplies. Petitioner failed.

A discussion on the principle of forum non conveniens is unnecessary.

IN VIEW WHEREOF, the Decision of the Court of Appeals in CA-G.R.

No. CV 54920, dated November 28, 2001, and its subsequent Resolution of
September 3, 2002 are AFFIRMED. The instant petition for review on certiorari is
DENIED for lack of merit. Cost against petitioner.

SO ORDERED.

CRESCENT PETROLEUM, LTD.,

Petitioner, vs. M/V "LOK MAHESHWARI,"
THE SHIPPING CORPORATION OF
INDIA, and PORTSERV LIMITED
G.R. No. 155014 November 11, 2005
FACTS:
Respondent M/V "Lok Maheshwari" (Vessel) is an oceangoing vessel of
Indian registry that is owned by respondent Shipping Corporation of India (SCI), a
corporation organized and existing under the laws of India and principally owned
by the Government of India. It was time-chartered by respondent SCI to Halla
Merchant Marine Co. Ltd. (Halla), a South Korean company. Halla, in turn, sub-
chartered the Vessel through a time charter to Transmar Shipping, Inc. (Transmar).
Transmar further sub-chartered the Vessel to Portserv Limited (Portserv). Both
Transmar and Portserv are corporations organized and existing under the laws of
Canada.
On or about November 1, 1995, Portserv requested petitioner Crescent
Petroleum, Ltd. (Crescent), a corporation organized and existing under the laws of
Canada that is engaged in the business of selling petroleum and oil products for
the use and operation of oceangoing vessels, to deliver marine fuel oils (bunker
fuels) to the Vessel. Petitioner Crescent granted and confirmed the request through
an advice via facsimile dated November 2, 1995. As security for the payment of the
bunker fuels and related services, petitioner Crescent received two (2) checks in
the amounts of US$100,000.00 and US$200,000.00. Thus, petitioner Crescent
contracted with its supplier, Marine Petrobulk Limited (Marine Petrobulk), another
Canadian corporation, for the physical delivery of the bunker fuels to the Vessel.
On or about November 4, 1995, Marine Petrobulk delivered the bunker fuels
amounting to US$103,544 inclusive of barging and demurrage charges to the
Vessel at the port of Pioneer Grain, Vancouver, Canada. The Chief Engineer Officer
of the Vessel duly acknowledged and received the delivery receipt. Marine
Petrobulk issued an invoice to petitioner Crescent for the US$101,400.00 worth of
the bunker fuels. Petitioner Crescent issued a check for the same amount in favor
of Marine Petrobulk, which check was duly encashed.
Having paid Marine Petrobulk, petitioner Crescent issued a revised invoice
dated November 21, 1995 to "Portserv Limited, and/or the Master, and/or Owners,
and/or Operators, and/or Charterers of M/V ‘Lok Maheshwari’" in the amount of
US$103,544.00 with instruction to remit the amount on or before December 1, 1995.
The period lapsed and several demands were made but no payment was received.
Also, the checks issued to petitioner Crescent as security for the payment of the
bunker fuels were dishonored for insufficiency of funds. As a consequence,
petitioner Crescent incurred additional expenses of US$8,572.61 for interest,
tracking fees, and legal fees.
On May 2, 1996, while the Vessel was docked at the port of Cebu City,
petitioner Crescent instituted before the RTC of Cebu City an action "for a sum of
money with prayer for temporary restraining order and writ of preliminary
attachment" against respondents Vessel and SCI, Portserv and/or Transmar.
On May 3, 1996, the trial court issued a writ of attachment against the Vessel
with bond at P2,710,000.00. Petitioner Crescent withdrew its prayer for a temporary
restraining order and posted the required bond.
On May 18, 1996, summonses were served to respondents Vessel and SCI,
and Portserv and/or Transmar through the Master of the Vessel. On May 28, 1996,
respondents Vessel and SCI, through Pioneer Insurance and Surety Corporation
(Pioneer), filed an urgent ex-parte motion to approve Pioneer’s letter of
undertaking, to consider it as counter-bond and to discharge the attachment. On
May 29, 1996, the trial court granted the motion; thus, the letter of undertaking was
approved as counter-bond to discharge the attachment.
ISSUE:
Whether the Philippine court has or will exercise jurisdiction and entitled to
maritime lien under our laws on foreign vessel docked on Philippine port and
supplies furnished to a vessel in a foreign port?
RULING:
In a suit to establish and enforce a maritime lien for supplies furnished to a
vessel in a foreign port, whether such lien exists, or whether the court has or will
exercise jurisdiction, depends on the law of the country where the supplies were
furnished, which must be pleaded and proved.
The Lauritzen-Romero-Rhoditis trilogy of cases, which replaced such single-
factor methodologies as the law of the place of supply. The multiple-contact test to
determine, in the absence of a specific Congressional directive as to the statute’s
reach, which jurisdiction’s law should be applied. The following factors were
considered: (1) place of the wrongful act; (2) law of the flag; (3) allegiance or
domicile of the injured; (4) allegiance of the defendant shipowner; (5) place of
contract; (6) inaccessibility of foreign forum; and (7) law of the forum. This is
applicable not only to personal injury claims arising under the Jones Act but to all
matters arising under maritime law in general
 The Court cannot sustain petitioner Crescent’s insistence on the application
of P.D. No. 1521 or the Ship Mortgage Decree of 1978 and hold that a maritime lien
exists. Out of the seven basic factors listed in the case of Lauritzen, Philippine law
only falls under one – the law of the forum. All other elements are foreign – Canada
is the place of the wrongful act, of the allegiance or domicile of the injured and the
place of contract; India is the law of the flag and the allegiance of the defendant
shipowner. Applying P.D. No. 1521,a maritime lien exists would not promote the
public policy behind the enactment of the law to develop the domestic shipping
industry. Opening up our courts to foreign suppliers by granting them a maritime
lien under our laws even if they are not entitled to a maritime lien under their
laws will encourage forum shopping. In light of the interests of the various foreign
elements involved, it is clear that Canada has the most significant interest in this
dispute. The injured party is a Canadian corporation, the sub-charterer which
placed the orders for the supplies is also Canadian, the entity which physically
delivered the bunker fuels is in Canada, the place of contracting and negotiation is
in Canada, and the supplies were delivered in Canada.