OBLIGATIONS OF THE SHIPPER, CONSIGNEE AND PASSENGER

Effect of Negligence of Shipper or Passenger

The Obligation to exercise due diligence is not limited to the carrier as the shipper is also obliged to exercise such in avoiding damage to the goods that are being shipped or injury in his person. a. Contributory Negligence of Shipper- is not a defense that will excuse the carrier from liability. It will only mitigate such liability. Art. 1741. If the shipper or owner merely contributed to the loss, destruction or deterioration of the goods, the proximate cause thereof being the negligence of the common carrier, the latter shall be liable in damages, which however shall be equitable reduced. b. Contributory Negligence of Passengers does not bar recovery of damages for his death or injuries, if the proximate cause thereof is the negligence of the common carrier, but the amount of damages shall be equitable reduced. Art. 1762 Basis: The passenger must observe the diligence of a good father of a family to avoid injury in himself. Art. 1761

CESAR L. ISAAC vs A. L. AMMEN TRANSPORTATION CO., INC. G.R. No. L-9671 August 23, 1957
On May 31, 1951, Cesar Isaac boarded Bus No. 31 of defendant A.L. Ammen Transportation as a passenger paying the required fare from Ligao, Albay bound for Pili, Camarines Sur, but before reaching his destination, the bus collided with a motor vehicle of the pick-up type coming from the opposite direction, as a result of which plaintiff's left arm was completely severed and the severed portion fell inside the bus. Plaintiff was rushed to a hospital in Iriga, Camarines Sur where he was given blood transfusion to save his life. After four days, he was transferred to another hospital in Tabaco, Albay, where he underwent treatment for three months. He was moved later to the Orthopedic Hospital where he was operated on and stayed there for another two months. For these services, he incurred expenses amounting to P623.40, excluding medical fees which were paid by defendant As an aftermath, plaintiff brought an action against defendant for damages alleging that the collision which resulted in the loss of his left arm was mainly due to the gross incompetence and recklessness of the driver of the bus operated by defendant and that defendant incurred in culpa contractual arising from its non-compliance with its obligation to transport plaintiff safely to his, destination. Defendant set up as special defense that the injury suffered by plaintiff was due entirely to the fault or negligence of the driver of the pick-up car which collided with the bus driven by its driver and to the contributory negligence of plaintiff himself. Defendant further claims that the accident which resulted in the injury of plaintiff is one which defendant could not foresee or, though foreseen, was inevitable.

Issue: Whether or not defendants liability is limited due to contributory negligence.

A circumstance which miliates against the stand of appellant is the fact borne out by the evidence that when he boarded the bus in question, he seated himself on the left side thereof resting his left arm on the window sill but with his left elbow outside the window, this being his position in the bus when the collision took place. It is for this reason that the collision resulted in the severance of said left arm from the body of appellant thus doing him a great damage. It is therefore apparent that appellant is guilty of contributory negligence. Had he not placed his left arm on the window sill with a portion thereof protruding outside, perhaps the injury would have been avoided as is the case with the other passenger. It is to be noted that appellant was the only victim of the collision. It is true that such contributory negligence cannot relieve appellee of its liability but will only entitle it to a reduction of the amount of damage caused (Article 1762, new Civil Code), but this is a circumstance which further militates against the position taken by appellant in this case. It is the prevailing rule that it is negligence per se for a passenger on a railroad voluntarily or inadvertently to protrude his arm, hand, elbow, or any other part of his body through the window of a moving car beyond the outer edge of the window or outer surface of the car, so as to come in contact with objects or obstacles near the track, and that no recovery can be had for an injury which but for such negligence would not have been sustained. (10 C. J. 1139) Plaintiff, (passenger) while riding on an interurban car, to flick the ashes, from his cigar, thrust his hand over the guard rail a sufficient distance beyond the side line of the car to bring it in contact with the trunk of a tree standing beside the track; the force of the blow breaking his wrist. Held, that he was guilty of contributory negligence as a matter of law. (Malakia vs. Rhode Island Co., 89 A., 337.)

Compania Maritima vs CA and Vicente Concepcion

Private respondent Vicente E. Concepcion, a civil engineer doing business under the name and style of Consolidated Construction and being a Manila-based contractor, had to ship his construction equipment to Cagayan de Oro City for the construction of the airport in Cagayan de Oro City Misamis Oriental. Having shipped some of his equipment through petitioner and having settled the balance of P2,628.77 with respect to said shipment, Concepcion negotiated anew with petitioner, thru its collector, Pacifico Fernandez, on August 28, 1964 for the shipment to Cagayan de Oro City of one (1) unit payloader, four (4) units 6x6 Reo trucks and two (2) pieces of water tanks. He was issued Bill of Lading 113 on the same date upon delivery of the equipment at the Manila North Harbor. These equipment were loaded aboard the MV Cebu in its Voyage No. 316 and arrived at Cagayan de Oro City. While the payloader was about two (2) meters above the pier in the course of unloading, the swivel pin of the heel block of the port block of Hatch No. 2 gave way, causing the payloader to fall. 3 The payloader was damaged and was thereafter taken to petitioner's compound in Cagayan de Oro City. Concepcion wrote Compaia Maritima demanding for a replacement of the payloader which it was considering as a complete loss because of the extent of damage. Meanwhile, petitioner shipped the payloader to Manila where it was weighed at the San Miguel Corporation. Finding that the payloader weighed 7.5 tons and not 2.5 tons as declared in the B-111 of Lading, petitioner denied the claim for damages. Concepcion filed an action for damages against petitioner with the then Court of First Instance of Manila, Branch VII.

Whether or not the act of private respondent Vicente E. Concepcion in furnishing petitioner Compaia Maritima with an inaccurate weight of 2.5 tons instead of the payloader's actual weight of 7.5 tons was the proximate and only cause of the damage on the Oliver Payloader OC-12 when it fell while being unloaded by petitioner's crew.
The general rule under Articles 1735 and 1752 of the Civil Code is that common carriers are presumed to have been at fault or to have acted negligently in case the goods transported by them are lost, destroyed or had deteriorated. To overcome the presumption of liability for the loss, destruction or deterioration of the goods under Article 1735, the common carriers must prove that they observed extraordinary diligence as required in Article 1733 of the Civil Code. The responsibility of observing extraordinary diligence in the vigilance over the goods is further expressed in Article 1734 of the same Code, the article invoked by petitioner to avoid liability for damages. Corollary is the rule that mere proof of delivery of the goods in good order to a common carrier, and of their arrival at the place of destination in bad order, makes out prima facie case against the common carrier, so that if no explanation is given as to how the loss, deterioration or destruction of the goods occurred, the common carrier must be held responsible. 10 Otherwise stated, it is incumbent upon the common carrier to prove that the loss, deterioration or destruction was due to accident or some other circumstances inconsistent with its liability. In the instant case, We are not persuaded by the proferred explanation of petitioner alleged to be the proximate cause of the fall of the payloader while it was being unloaded at the Cagayan de Oro City pier. Petitioner seems to have overlooked the extraordinary diligence required of common carriers in the vigilance over the goods transported by them by virtue of the nature of their business, which is impressed with a special public duty. While the act of private respondent in furnishing petitioner with an inaccurate weight of the payloader cannot successfully be used as an excuse by petitioner to avoid liability to the damage thus caused, said act constitutes a contributory circumstance to the damage caused on the payloader, which mitigates the liability for damages of petitioner in accordance with Article 1741 of the Civil Code, to wit: Art. 1741. If the shipper or owner merely contributed to the loss, destruction or deterioration of the goods, the proximate cause thereof being the negligence of the common carrier, the latter shall be liable in damages, which however, shall be equitably reduced.

PNR vs COURT OF APPEALS G.R. No. L-55347 October 4, 1985

FACTS: Winifredo Tupang, husband of respondent Rosario Tupang, boarded 'Train No. 516 of petitioner at Libmanan, Camarines Sur, as a paying passenger bound for Manila. Due to some mechanical defect, the train stopped at Sipocot, Camarines Sur, for repairs, taking some two hours before the train could resume its trip to Manila. Unfortunately, upon passing Iyam Bridge at Lucena, Quezon, Winifredo Tupang fell off the train resulting in his death. The train did not stop despite the alarm raised by the other passengers that somebody fell from the train. Instead, the train conductor Perfecto Abrazado, called the station agent at Candelaria, Quezon, and requested for verification of the information. Police authorities of Lucena City were dispatched to the Iyam Bridge where they found the lifeless body of Winifredo Tupang. Upon complaint filed by the deceased's widow, Rosario Tupang, the then Court of First Instance of Rizal, after trial, held the petitioner PNR liable for damages for breach of contract of carriage and ordered "to pay the plaintiff the sum of P12,000,00 for the death of Winifredo Tupang, plus P20,000.00 for loss of his earning capacity and the further sum of P10,000.00 as moral damages, and P2,000.00 as attorney's fees, and costs. On appeal, the Appellate Court sustained the holding of the trial court that the PNR did not exercise the utmost diligence required by law of a common carrier.

Issue: Whether or not petitioner is liable as a common carrier.

The appellate court found, the petitioner does not deny, that the train boarded by the deceased Winifredo Tupang was so over-crowded that he and many other passengers had no choice but to sit on the open platforms between the coaches of the train. It is likewise undisputed that the train did not even slow down when it approached the Iyam Bridge which was under repair at the time, Neither did the train stop, despite the alarm raised by other passengers that a person had fallen off the train at lyam Bridge. The petitioner has the obligation to transport its passengers to their destinations and to observe extraordinary diligence in doing so. Death or any injury suffered by any of its passengers gives rise to the presumption that it was negligent in the performance of its obligation under the contract of carriage. Thus, as correctly ruled by the respondent court, the petitioner failed to overthrow such presumption of negligence with clear and convincing evidence. But while petitioner failed to exercise extraordinary diligence as required by law, it appears that the deceased was chargeable with contributory negligence. Since he opted to sit on the open platform between the coaches of the train, he should have held tightly and tenaciously on the upright metal bar found at the side of said platform to avoid falling off from the speeding train. Such contributory negligence, while not exempting the PNR from liability, nevertheless justified the deletion of the amount adjudicated as moral damages.

Effect of Negligence of Shipper or Passenger

c. Proximate Cause - If the negligence of the shipper or the passenger is the proximate and only cause of the loss, the carrier shall not be made liable. Overcomes the presumption of negligence on the part of the carrier. Acts of the shipper proving negligence: 1. Failure of the shipper to disclose the nature of the goods 2. Improper marking or direction as to destination 3. Improper loading when shipper assumes such responsibility. If the shipper fails to see to it that the goods are properly packed, the liability of the carrier may either be mitigated or barred depending on the circumstances. d. Avoidable Consequences requires passenger to lessen the damage or injury even if the carrier is responsible for such damage or injury.

Effect of Negligence of Shipper or Passenger

e. Last Clear Chance a negligent defendant is held liable to a negligent plaintiff, or even a plaintiff who has been grossly negligent in placing himself in peril, If he, aware of the plaintiffs peril, or according to some authorities, should have been aware of it in the reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff to avoid an accident. However, in the case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court, the Supreme Court ruled that the principle of last clear chance applies in a suit between the owners and drivers of colliding vehicles. It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence.

f. Assumption of Risk passengers must take such risks incident to the mode of travel, because carriers are not insurers of the lives of their passengers. Thus, in air travel, adverse weather conditions or extreme climactic changes are some of the perils involved in air travel, the consequences of which the passenger must assume or expect.

Payment of Freight
Concept. Common carriers are subject to heavy regulation with respect to rates that they are charging the public. It is founded upon the police power of the State and statutes prescribing rules for the control and regulation of public utilities are a valid exercise thereof. When private property is used for public purpose and is affected with public interest, it ceases to be juris private only and becomes subject to regulation. State regulation. In regulating rates charged by public utilities, the State protects the public against arbitrary and excessive rates while maintaining the efficiency and quality of services rendered. However, the power to regulate rates does not give the State the right to prescribe rates which are so low as to deprive the public utility of a reasonable return on investment. Thus, the State must be one that yields a fair return on the public utility upon the value of the property performing the services rendered. Although the consideration to be paid to the carrier is still subject to the agreement of the parties, what can be agreed upon should not be beyond the maximum amount fixed by law.

Payment of Freight
Who will Pay the Freight The Shipper may pay the necessary freight before or at the time he delivers the goods to the carrier for shipment. He is primarily liable for the payment of freight charges whether or not he is the owner of the goods. The obligation to pay is implied from the fact the consignor has placed the goods with the carrier for the purpose of transportation. The Consignee may also pay the freight at the point of destination upon the stipulation of the parties. The consignee is bound by such stipulation the moment he accepts the goods.

Payment of Freight
TIME TO PAY THE FREIGHT. The Code of Commerce provisions on Overland Transportation implies that in the absence of any agreement, the consignee who is supposed to pay must do so within twenty-four hours from the time of the delivery. Article 374 of the Code of Commerce provides: The consignees to whom the shipment was made may not defer the payment of the expenses and transportation charges of the hoods they receive after the lapse of twenty-four hours following their delivery; and in case of delay in his payment, the carrier may demand the judicial sale of the goods transported in an amount necessary to cover the cost of transportation and the expenses incurred. Carriers Lien-If the consignor or consignee failed to pay the consideration for the transportation of the goods, the carrier may exercise his lien in accordance with Article 375 of the Code of Commerce which provides: Article 375. The goods transported shall especially bound to answer the cost of transportation and for the expenses and fees incurred for them during their conveyance and until the moment of their delivery. This special right shall prescribe eight days after the delivery has been made, and once prescribed, the carrier shall have no other action that that corresponding to him as an ordinary creditor.

Payment of Demurrage
In its strict sense, demurrage is the compensation provided for in the contract of affreightment for the detention of the vessel beyond the time agreed on for loading and unloading. Essentially, demurrage is the claim for damages for failure to accept delivery. In a broad sense, every improper detention of a vessel may be considered a demurrage. Damages are recoverable for a breach of implied obligation to load or unload the cargo with reasonable dispatch, but only by the party to whom the duty is owed and only against one who is a party to the shipping contract. Notice of arrival of vessels or conveyances, or of their placement for purposes of unloading is often a condition precedent to the right to collect demurrage charges.