02 - TRANSPORTATION LAW

Question 1

What is a common carrier?

Answer 1

P C F O A E I T B O C O T P O G O B, B L, W, O A F C, O I S T T P. [NCC ART. 1732]

Question 2

Test to determine whether a person is a common carrier

Answer 2

1. Does the person hold out to the public that it is engaged in the business of transporting or carrying passengers or goods, or both as a public employment and not a casual occupation?
2. Is it open to the use and service of all members of the public who may require the service to the extent of its capacity?

If it is open to the public, the carrier is a common carrier.

Question 3

What are the requisites to be a common carrier?

Answer 3

1. Engaged in the business of transporting goods or people - not just a casual occupation
2. Undertakes to carry passengers or goods over established roads by the method by which the business was conducted
3. The transportation must be for hire

Question 4

What is a private carrier?

Answer 4

One who, without making it his vocation or holding himself out to the public as ready to act for all who desire his services, undertakes, by special arrangement in a particular instance only, to transport persons or property from one destination to another, either gratuitously or for hire.

Question 5

Examples of private carriers

Answer 5

bareboat charter, funeral car, exclusive contractor for hauling the products of one particular company and no other entity, company bus ferrying employees to and from place of work

Question 6

Differentiate common farrier from private carrier

Answer 6

1. Common carrier offers its services to the public, private carrier does not.
2. Common carrier is required to observe extraordinary due diligence, private carrier is only required to exercise ordinary diligence
3. Private carriage is governed by contractual stipulations principally while common carriage is principally governed by law
4. Common carrier is bound to carry for all who offer such goods as he is accustomed to carry and tender reasonable compensation for carrying them while private carrier is not bound to carry for any reason, unless bound by contract
5. Common carrier cannot stipulate exemption from liability for negligence of employees while private carrier may validly stipulate because the public is not involved

Question 7

Presumption of negligence for common carrier

Answer 7

Article 1756 of the NCC provides that in case of death or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently unless they prove that they observed extraordinary diligence

Divina: the presumption of negligence applies so long as there is evidence showing that: (a) a contract exists between the passenger and the common carrier; and (b) the injury or death took place during the existence of such contract.

Question 8

Presumption of negligence in rel. fortuitous event

Answer 8

It is not enough that the accident was caused by a fortuitous event. The common carrier must still prove that it did not contribute to the occurrence of the incident due to tis own or its employees’ negligence.

Question 9

Who is liable in case of breach of contract of carriage? The operator or the driver or both?

Answer 9

If the cause of action is based on a breach of a contract of carriage, the liability of the owner/operator is direct as the contract is between him and the passenger. The driver cannot be made liable as he is not a party to the contract of carriage.

The driver, however, may be sued based on quasi-delict and/or criminally if his negligence can be established.

Question 10

Duty of the plaintiff to prove existence of breach.

Answer 10

The plaintiff must still, before burden is shifted to the defendant, prove that the subject shipment suffered actual shortage. This can only be done if the weight of the shipment at the port of origin and its subsequent weight at the port of arrival are proven by a preponderance of evidence.

Question 11

What are the defenses available to the common carrier in case of loss, destruction, or deterioration of the goods?

Answer 11

1. Flood, storm, earthquake, lightning, or other natural disaster or calamity;
2. Acts of public enemy in war, whether international or civil;
3. Act or omission of the shipper or passenger;
4. Character of the goods or defects in the packing or container;
5. Order or act of competent public authority [Art. 1734];
6. Exercise of extraordinary diligence

Question 12

What are the requisites for natural disaster to be considered an exempting circumstance in case of loss or damage to goods?

Answer 12

1. The natural disaster is the proximate and only cause of the loss;
2. The common carrier should have exercised due diligence to prevent or minimize the loss before, during and after the occurrence of the natural disaster
3. The common carrier should not incur in delay

Question 13

Who is a public enemy?

Answer 13

Citizen of another country against which the PH governmnet is at war

Question 14

What is the effect of a stipulation regarding the exercise of diligence to less than extraordinary?

Answer 14

The carrier and shipper may agree on the observance of diligence to a degree less than extraordinary (but not total exemption nor diligence less than ordinary) provided the stipulation is: (1) in writing; (2) supported by a valuable consideration other than the service rendered by the carrier; and (3) reasonable, just, and not contrary to public policy.

Question 15

When is the obligation of the common carrier to observe extraordinary diligence in the carriage of goods reduced to ordinary diligence?

Answer 15

1. When the seller exercised his right of stoppage in transit
2. If there is stipulation between the shipper and the carrier, subject to the conditions stated above
3. For hand-carried baggage
4. If the loss, destruction, or deterioration of the goods should be caused by the character of the goods, or the faulty nature of the packing or of the containers, the common carrier is only required to exercise due diligence to forestall or lessen the loss.