Enumerations Flashcards
OBLIGATIONS OF THE CARRIER
GENERAL RULE: A common carrier cannot ordinarily refuse to carry a particular class of goods. EXCEPTION: For some sufficient reason the discrimination against the traffic in such goods is reasonable and necessary.
Instances when the carrier may validly refuse to accept the goods include the ff:
DOCU FUSIE
- ) Goods sought to be transported are DANGEROUS objects, or substances including dynamite and other explosives
- ) Goods are UNFIT for transportation
- ) Acceptance would result in OVERLOADING
- ) CONTRABANDS or illegal goods
- ) Goods are INJURIOUS to health
- ) Goods will be exposed to UNTOWARD danger like FLOOD, capture by enemies and the like
- ) Goods like livestock will be EXPOSED TO DISEASE.
- ) STRIKE
- ) FAILURE to tender goods on time. (Notes and Cases on the Law on Transportation and Public Utilities, Aquino, T. & Hernando, R.P. 2004 ed. p.68)
Effects of delay
a. Merely suspends and generally does not terminate the contract of carriage b. Carrier remains duty bound to exercise extraordinary diligence c. Natural disaster shall not free the carrier from responsibility (Art.1740) d. If delay is without just cause, the contract limiting the common carrier’s liability cannot be availed of in case of loss or deterioration of the goods (Art.1747)
RIGHT OF CONSIGNEE TO ABANDON GOODS
Instances: 1. Partial non-delivery, where the goods are useless without the others (Art. 363); 2. Goods are rendered useless for sale or consumption for the purposes for which they are properly destined (Art. 365); and 3. In case of delay through the fault of the carrier (Art. 371).
NOTICE OF DAMAGE (ART. 366) Requisites for applicability:
- Domestic/inter-island/coastwise transportation 2. Land/water/air transportation 3. Carriage of goods 4. Goods shipped are damaged Rules: a. Patent damage: shipper must file a claim against the carrier immediately upon delivery (it may be oral or written) b. Latent damage: shipper should file a claim against the carrier within 24 hours from delivery. Note: These rules does not apply to misdelivery of goods. (Roldan vs. Lim Ponzo)
What are the CHARACTERISTICS OF MARITIME TRANSACTION?
- Real - similar to transactions over real property with respect to effectivity against third persons which is done through registration. (Rubiso vs. Rivera, 37 Phil. 72). The evidence of real nature is shown by: 1) the limitation of the liability of the agents to the actual value of the vessel and the freight money; and 2) the right to retain the cargo and embargo and detention of the vessel (Luzon Stevedoring Corp v. CA, 156 SCRA 169); 2. Hypothecary - the liability of the owner of the value of the vessel is limited to the vessel itself (Doctrine of Limited Liability). The real and hypothecary nature of maritime law simply means that the liability of the carrier in connection with losses related to maritime contracts is confined to the vessel, which stands as the guaranty for their settlement. (Aboitiz Shipping Corp. vs. General Accident Fire and Life Assurance Corp. 217 SCRA 359).
The GENERAL RULE: The liability of shipowner and ship agent is limited to the amount of interest in said vessel such that where vessel is entirely lost, the obligation is extinguished. The interest extends to: 1) the vessel itself; 2) equipments; 3) freightage; and 4) insurance proceeds. What are the EXCEPTIONS?
- Claims under Workmen’s Compensation (Abueg vs. San Diego 77 Phil 730); 2. Injury or damage due to shipowner or to the concurring negligence of the shipowner and the captain; 3. The vessel is insured (Vasquez vs. CA 138 SCRA 553). 4. Expenses for repair on vessel completed before loss; 5. In case there is no total loss and the vessel is not abandoned; 6. Collision between two negligent vessels;
What are the cases where Hypothecary rule applies?
DOCTRINE OF LIMITED LIABILITY (HYPOTHECARY RULE) Cases where applicable: 1. Art. 587 – civil liability for indemnities to third persons 2. Art. 590 – indemnities from negligent acts of the captain (not the shipowner or ship agent) 3. Art. 837 – collision 4. Art. 643 – liability for wages of the captain and the crew and for advances made by the ship agent if the vessel is lost by shipwreck or capture
What are the instances where Shipowner or ship agent can abandon vessel?
RIGHT OF SHIPOWNER OR SHIP AGENT TO ABANDON VESSEL Instances: 1. In case of civil liability from indemnities to third persons (Art. 587); 2. In case of leakage of at least ¾ of the contents of a cargo containing liquids (Art. 687); and 3. In case of construct
What are the CAUSES OF REVOCATION OF VOYAGE?
- War or interdiction of commerce; 2. Blockade; 3. Prohibition to receive cargo at destination; 4. Embargo; 5. Inability of the vessel to navigate. (Art. 640)
Who are the participants in maritime commerce?
A. Shipowners and ship agents B. Captains and masters of the vessel C. Officers and crew of the vessel D. Supercargoes E. Pilot
A Person who has possession, control and management of the vessel and the consequent right to direct her navigation and receive freight earned and paid, while his possession continues.
Shipowner (proprietario)
Person entrusted with provisioning and representing the vessel in the port in which it may be found; also includes the shipowner. Not a mere agent under civil law; he is solidarily liable with the ship owner.
Ship agent (Naviero)
What are the powers and function of a ship agent?
- Capacity to trade; 2. Discharge duties of the captain, subject to Art.609; 3. Contract in the name of the owners with respect to repairs, details of equipment, armament, provisions of food and fuel, and freight of the vessel, and all that relate to the requirements of navigation; 4. Order a new voyage, make a new charter or insure the vessel after obtaining authorization from the shipown
Civil Liabilities of the Shipowner And Ship Agent
- All contracts of the captain, whether authorized or not, to repair, equip and provision the vessel; (Art. 586) 2. Loss and damage to the goods loaded on the vessel without prejudice to their right to free themselves from liability by abandoning the vessel to the creditors. (Art. 587)
Duty of Ship Agent to Discharge the Captain and Members of the Crew
If the seamen contract is not for a definite period or voyage, he may discharge them at his discretion. (Art. 603) If for a definite period, he may not discharge them until after the fulfillment of their contracts, except on the following grounds: a. Insubordination in serious matters; b. Robbery; c. Theft; d. Habitual drunkenness; e. Damage caused to the vessel or to its cargo through malice o
They are the chiefs or commanders of ships. The terms have the same meaning, but are particularly used in accordance with the size of the vessel governed and the scope of transportation, i.e., large and overseas, and small and coastwise, respectively.
CAPTAINS AND MASTERS
Nature of position of Captains and Masters (3-fold character)
. General agent of the shipowner; 2. Technical director of the vessel; 3. Representative of the government of the country under whose flag he navigates.
What are the qualifications to become a Captain or Master?
1.Filipino citizen; 2. Legal capacity to contract; 3. Must have passed the required physical and mental examinations requ
What are the inherent powers of a Captain or Master?
- Appoint crew in the absence of ship agent; 2. Command the crew and direct the vessel to its port of destination; 3. Impose correctional punishment on those who, while on board vessel, fail to comply with his orders or are wanting in discipline; 4. Make contracts for the charter of vessel in the absence of ship agent. 5. Supply, equip, and provision the vessel; and 6. Order repair of vessel to ena
What are the Sources of funds to comply with the inherent powers of the captain (in successive order)?
From the consignee of the vessel; 2. From the consignee of the cargo; 3. By drawing on the ship agent; 4. By a loan on bottomry; 5. By sale of part of the cargo.
What are the duties of a Captain?
s: 1. Bring on board the proper certificate and documents and a copy of the Code of Commerce; 2. Keep a Log Book, Accounting Book and Freight Book; 3. Examine the ship before the voyage; 4. Stay on board during the loading and unloading of the cargo; 5. Be on deck while leaving or entering the port; 6. Protest arrivals under stress and in case of shipwreck; 7. Follow instructions of and render an accounting to the ship agent; 8. Leave the vessel last in case of wreck; 9. Hold in custody properties left by deceased passengers and crew members; 10. Comply with the requirements of customs, health, etc. at the port of arrival; 11. Observe rules to avoid collision; 12. Demand a pilot while entering or leaving a port. (Art. 612)
What is the nature of authority of Captains?
A ship’s captain must be accorded a reasonable measure of discretionary authority to decide what the safety of the ship and of its crew and cargo specifically requires on a stipulated ocean voyage (Inter-Orient Maritime Enterprises Inc. vs. CA).
When is a captain absolved of liability?
- Force majeure damages 2. Obligations contracted for the repair, equipment, and provisioning of the vessel unless he has expressly bound himself personally or has signed a bill of exchange or promissory note in his name. (Art. 620)
What are the Solidary Liabilities of the Ship Agent/Shipowner for Acts Done by the Captain towards Passengers and Cargoes?
- Damages to vessel and to cargo due to lack of skill and negligence; 2. Thefts and robberies of the crew; 3. Losses and fines for violation of laws; 4. Damages due to mutinies; 5. Damages due to misuse of power; 6. For deviations; 7. For arrivals under stress; 8. Damages due to non-observance of marine regulations. (Art. 618)
Who are the officers and crew?
- Sailing Mate/First Mate 2. Second Mate 3. Engineers 4. Crew
Officers and crew have no liability under circumstances of?
No liability under the following circumstances: 1. If, before beginning voyage, captain attempts to change it, or a naval war with the power to which the vessel was destined occurs; 2. If a disease breaks out and be officially declared an epidemic in the port of destination; 3. If the vessel should change owner or captain. (Art. 647)
Second chief of the vessel who takes the place of the captain in case of absence, sickness, or death and shall assume all of his duties, powers and responsibilities. (Art. 627)
Sailing Mate/First Mate
Duties of a Sailing Mate/First Mate
- Provide himself with maps and charts with astronomical tables necessary for the discharge of his duties; 2. Keep the Binnacle Book; 3. Change the course of the voyage on consultation with the captain and the officers of the boat, following the decision of the captain in case of disagreement; 4. Responsible for all the damages caused to the vessel and the cargo by reason of his negligence. (Arts. 628 - 631)
Takes command of the vessel in case of the inability or disqualification of the captain and the sailing mate, assuming in such case their powers and responsibilities.
Second mate, third in command
Duties of a second mate
- Preserve the hull and rigging of the vessel; 2. Arrange well the cargo; 3. Discipline the crew; 4. Assign work to crew members; 5. Inventory the rigging and equipment of the vessel, if laid up. (Art. 632)
Officers of the vessel but have no authority except in matters referring to the motor apparatus. When two or more are hired, one of them shall be the chief engineer.
Engineers.
Duties of an engineer
- In charge of the motor apparatus, spare parts, and other instruments pertaining to the engines; 2. Keep the engines and boilers in good condition; 3. Not to change or repair the engine without authority of the captain; 4. Inform the captain of any damage to the motor apparatus; 5. Keep an Engine Book; 6. Supervise all person
The aggregate of seamen who man a ship, or the ship’s company.
Crew, they are Hired by the ship agent, where he is present and in his absence, the captain hires them, preferring Filipinos, and in their absence, he may take in foreigners, but not exceeding 1/5 of the crew.
What are the classes of Seaman’s contracts?
Classes of Seaman’s Contracts 1. By the voyage; 2. By the month; and 3. By share of profits or freightage
Just Causes for the Discharge of Seaman While Contract Subsists
- Perpetration of a crime; 2. Repeated insubordination, want of discipline; 3. Repeated incapacity and negligence; 4. Habitual drunkenness; 5. Physical incapacity; 6. Desertion. (Art. 637)
Rules in case of death of a Seaman
The seaman’s heirs are entitled to payment as follows: 1. If death is natural: a. compensation up to time of death if engaged on wage b. if by voyage - half of amount if death occurs on voyage out; and full, if on voyage in c. if by shares - none, if before departure; full, if after departure 2. if death is due to defense of vessel - full payment; 3. if captured in defense of vessel - full payment; 4. if captured due to carelessness - wag
Who are the complement of the vessel?
All persons on board, from the captain to the cabin boy, necessary for the management, maneuvers, and service, thus including the crew, the sailing mates, engineers, stokers and other employees on board not having specific designations. Does not include the passengers or the persons whom the vessel is transporting.
Who or what are Supercargoes?
Persons who discharges administrative duties assigned to him by ship agent or shippers, keeping an account and record of transaction as required in the accounting book of the captain. (Art. 649)
Who is a pilot?
A person duly qualified, and licensed, to conduct a vessel into or out of ports, or in certain waters. The term generally connotes a person taken on board at a particular place for the purpose of conducting a ship through a river, road or channel, or from a port. Master pro hac vice for the time being in the command and navigation of the ship.
What is the special rule on Pilots?
While in exercising his functions a pilot is in sole command of the ship and supersedes the master for the time being in the command and navigation of the ship, the master does not surrender his vessel to the pilot and the pilot is not the master. There are occasions when the master may and should interfere and even displace the pilot, as when the pilot is obviously incompetent or intoxicated (Far Eastern Shipping Company vs. CA).
What is compulsory pilotage?
Compulsory Pilotage – States possessing harbors have enacted laws or promulgated rules requiring vessels approaching their ports to take on board pilots licensed under the local laws. (Notes and Cases on the Law on Transportation and Public Utilities, Aquino, T. & Hernando, R.P. 2004 ed. p. 518)
What is the liability of a Pilot?
GENERAL RULE: On compulsory pilotage grounds, the Harbor Pilot is responsible for damage to a vessel or to life or property due to his negligence. EXCEPT: 1. Accident caused by force majeure or natural calamity provided the pilot exercised prudence and extra diligence to prevent or minimize damages. 2. Countermand or overrule by the master of the vessel in which case the registered owner of the vessel is liable. (Sec.11, Art.III PPA Admin Order 03- 85)
What are the special contracts of Maritime Commerce?
CBC LLM 1. Charter party 2. Bill of lading 3. Contract of transportation of passengers on sea voyages 4. Loan on bottomry 5. Loan on respondentia 6. Marine insurance
What is a charter party?
A contract by virtue of which the owner or agent binds himself to transport merchandise or persons for a fixed price. A contract by which an entire ship, or some principal part thereof is let/leased by the owner to another person for a specified time or use. (Planters Products, Inc. vs. CA, 226 SCRA 476)
Who are the parties to a charter party?
- Ship owner or ship agent 2. Charterer
What are the classes of charter agreement?
- Bareboat or demise 2. Contract of affreightment
What is a contract of affreightment?
A contract whereby the owner of the vessel leases part or all of its space to haul goods for others. The shipowner retains the possession, command and navigation of the ship, the charterer merely having use of the space in the vessel in return for his payment of the charter hired. Kinds: a. Time charter – vessel is chartered for a fixed period of time or duration of voyage. b. Voyage or trip charter – the vessel is leased for one or series of voyages usually for purposes of transporting goods for charterer.
What is a bareboat or demise agreement?
The charterer provides crew, food and fuel. The charterer is liable as if he were the owner, except when the cause arises from the unworthiness of the vessel. The shipowner leases to the charterer the whole vessel, transferring to the latter the entire command, possession and consequent control over the vessel’s navigation, including the master and the crew, who thereby become the charter’s servants. It transforms a common carrier into a private carrier. The charterer becomes the owner of the vessel pro hac vice, just for that one particular purpose only. Because the charterer is treated as owner pro hac vice, the charterer assumes the customary rights and liabilities of the shipowner to third persons and is held liable for the expense of the voyage and the wages of the seamen.
Differentiate Lease from Charter party.
Differentiate Charter party from Bill of lading
Differentiate bareboat or demise from Contract of Affreightment (time or voyage charter)
Who are the person who may make a charter?
- Owner or owners of the vessel, either in
whole or in majority part, who have legal
control and possession of the vessel - Charterer may subcharter entire vessel to
3rd person only if not prohibited in original
charter. (Art.679) - Ship agent if authorized by the owner/s or
given such power in the certificate of
appointment. (Art.598) - Captain in the absence of the ship agent
or consignee and only if he acts in
accordance with the instructions of the
agent or owner and
What are the REQUISITES OF A VALID CHARTER PARTY?
- Consent of the contracting parties
- Existing vessel which should be placed at
the disposition of the shipper - Freight
- Compliance with Art. 652 of the Code of
Commerce
Differentiate a Jason clause from a clause paramount or paramount clause
What are the rights and obligations of a parties in a charter agreement?
Instances of rescission of a charter party
bonus to be paid to the captain after
the successful voyage.
Primage
What is the sum fixed in the charter party
as a remuneration to the owner of the ship for
the detention of his vessel beyond the number
of days allowed by the charter party for loading
or unloading or for sailing.
Demurrage
What is deadfreight?
the amount paid by or
recoverable from a charterer of a ship for the
portion of the ship’s capacity the latter
contracted for but failed to occupy.
What are lay days and extra lay days?
Lay Days - days allowed to charter parties for
loading and unloading the cargo.
5. Extra Lay Days – days which follow after the
lay days have elapsed.
What are the usual forms of consumating contracts in maritime law?
- C.I.F. – cost, insurance and freight;
- F.O.B. - free on board;
- F.A.S. - free alongside ship; and
- C. & F. - cost and freight.
What is meant by Transshipment of goods?
The act of taking cargo out of one ship and
loading it in another, or the transfer of goods from
the vessel stipulated in the contract of affreightment
to another vessel before the place of destination
named in the contract has been reached, or the
transfer for further transportation from one ship or
conveyance to another.
It is not dependent on the ownership of the
transporting ships or in the change of carriers, but
rather on the fact of actual physical transfer of
cargo from one vessel to another.
If done without legal excuse, however competent
and safe the vessel into which the transfer is made,
is a violation of contract and infringement of right of
shipper and subjects carrier to liability if freight is
lost event by cause otherwise excepted. (Magellan
Manufacturing vs. CA, 201 SCRA 102)
WHAT IS A LOAN ON BOTTOMRY AND RESPONDENTIA?
A real, unilateral, aleatory contract, by virtue of
which one person lends to another a certain amount
of money or goods on things exposed to maritime
risks, which amount, with its earnings, is to be
returned if the things are safely transported, and
which is lost if the latter are lost.
What is the difference betwen Loan on Bottomry and Loan on Respondentia?
Differentiate Bottomry/Respondentia from Mutuum.
WHEN LOAN ON BOTTOMRY OR
RESPONDENTIA REGARDED AS SIMPLE LOAN
- Lender loaned an amount larger than the
value of the object due to fraudulent
means employed by the borrower.
(ART.726) - Full amount of the loan is not used for the
cargo or given on the goods if all of them
could not have been loaded, the balance
will be considered a simple loan.
(ART.727) - If the effects on which the money is taken
is not subjected to any risk. (ART.729)
Note: Under existing laws, the parties to a loan,
whether ordinary or maritime, may agree on any
rate of interest. (CB Circular 905)
Difference between Marine Insurance and Loan on Bottomry or Respondentia
What is the hypothecary nature of Bottomry/Respondentia?
General Rule: The obligation of the borrower to
pay the loan is extinguished if the goods given as
security are absolutely lost by reason of an accident of the sea, during the voyage designated, and if it is proven that the goods were on board.
EXCEPTIONS:
1. Loss due to inherent defect;
2. Loss due to the barratry on the part of the
captain;
3. Loss due to the fault or malice of the borrower;
4. The vessel was engaged in contraband; and
5. The cargo loaded on the ve
Concurrence of Marine Insurance and Loan on
Bottomry/Respondentia
- The insurable interest of the owner of a
ship hypothecated by bottomry is only the
excess of the value over the amount
secured by bottomry. (Sec. 101,
Insurance Code) - The value of what may be saved in case
of shipwreck shall be divided between the
lender and the insurer in proportion to the
interest of each one. (Art. 735)
Note: If a vessel is hypothecated by bottomry only the excess is insurable, since a loan on bottomry
partakes of the nature likewise of an insurance
coverage to the extent of the loan accommodation. The same rule would apply to the hypothecation of the cargo by respondentia.
What are the ACCIDENTS IN MARITIME COMMERCE?
- Averages
- Arrival Under Stress
- Collision
- Shipwreck
What is an average(accident)?
An extraordinary or accidental expense incurred
during the voyage in order to preserve the cargo,
vessel or both, and all damages or deterioration
suffered by the vessel from departure to the port of destination, and to the cargo from the port of
loading to the port of consignment. (Art. 806)
Classes of averages
- Particular or Simple Average
- Gross or General Average
Where both vessel and cargo are saved, it is
general average; where only the vessel or only the
cargo is saved, it is particular average.
Expenses incurred to refloat a vessel, which
accidentally ran aground, in order to continue its
voyage, do not constitute general average. Not only
is there absence of a marine peril, common safety
factor, and deliberateness. It is the safety of the
property, and not the voyage, which constitutes the
true foundation of general average. (A. Magsaysay,
Inc. vs. Agan, G.R.No. L-6393, Jan. 31, 1955)
The person whose property has been saved must
contribute to reimburse the damage caused or
expense incurred if the situation constitutes general average.
GOODS NOT COVERED BY GENERAL AVERAGE
EVEN IF SACRIFICED
- Goods carried on deck. (ART.855)
- Goods not recorded in the books or
records of the vessel. (ART.855 (2)) - Fuel for the vessel if there is more than
sufficient fuel for the voyage. (Rule IX,
York-Antwerp Rule)
What is jettison?
Act of throwing cargo overboard in order to
lighten the vessel.
Order of goods to be cast overboard:
1. Those which are on the deck, preferring
the heaviest one with the least utility and
value;
2. Those which are below the upper deck,
beginning with the one with greatest
weight and smallest value. (Art. 815)
Jettisoned goods are not res nullius nor deemed
“abandoned” within the meaning of civil law so as to
be the object of occupation by salvage. (Pandect of
Commercial Law and Jurisprudence, Justice Jose
Vitug, 1997 ed.)
In order that the jettisoned goods may be
included in the gross or general average, the
existence of the cargo on board should be proven
by means of the bill of lading. (Art. 816)
What is ARRIVAL UNDER STRESS (ARRIBADA)?
The arrival of a vessel at the nearest and most
convenient port instead of the port of destination, if
during the voyage the vessel cannot continue the
trip to the port of destination.
What are the rules on Arribada?
What is the duty of the captain in case of arribada?
It is the duty of the captain to continue the
voyage without delay after the cause of the arrival
under stress has ceased failing in such duty renders
him liable. However, in case the cause has been risk
of enemies, there must first be an assembly before
departure. (Art. 825)
What are the steps to be undertaken by the captain in case of arribada?
Steps:
1. Captain should determine during the
voyage if there is well founded fear of
seizure, privateers and other valid
grounds;
2. Captain shall assemble the officers and
summon the persons interested in the
cargo who may attend the meeting but
without a right to vote;
3. The officers shall determine and agree if
there is well-founded reason after
examining the circumstances. The
captain shall have the deciding vote;
4. The agreement shall be drafted and the
proper minutes shall be signed and
entered in the log book;
5. Objections and protests shall likewise be
entered in the minutes.
What is Collision and Allision?
COLLISION
Impact of two vessels both of which are moving.
Allision
Impact between a moving vessel and a stationary
one.
What are the nautical rules to determine negligence?
- When two vessels are about to enter a port,
the farther one must allow the nearer to enter
first; if they collide, the fault is presumed to be
imputable to the one who arrived later, unless
it can be proved that there was no fault on its
part. - When two vessels meet, the smaller should
give the right of way to the larger one. - A vessel leaving port should leave the way
clear for another which may be entering the
same port. - The vessel which leaves later is presumed to
have collided against one which has left earlier. - There is a presumption against the vessel
which sets sail in the night. - There is a presumption against the vessel with
spread sails which collides with another which
is at anchor and cannot move, even when the
crew of the latter has received word to lift
anchor, when there was not sufficient time to
do so or there was fear of a greater damage or
other legitimate reason. - There is a presumption against an improperly
moored vessel. - There is a presumption against a vessel which
has no buoys to indicate the location of its
anchors to prevent damage to vessels which
may approach it. - Vessels must have “proper look-outs” or
persons trained as such and who have no
other duty aside therefrom. (Smith Bell v. CA)
What are the nautical rules as to Sailing Vessel and Steamship?
- Where a steamship and a sailing vessel are
approaching each other from opposite
directions, or on intersecting lines, the
steamship from the moment the sailing vessel
is seen, shall watch with the highest diligence
her course and movements so as to be able to
adopt such timely means of precaution as will
necessarily prevent the two boats from coming
in contact. - The sailing vessel is required to keep her
course unless the circumstances require
otherwise.
Zones of Time in the Collision of Vessels
- First zone – all time up to the moment when risk
of collision begins.
No rule is as yet applicable for none is necessary. - Second zone – time between moment when risk
of collision begins and moment it becomes a
practical certainty.
It is in this period where conduct of the vessels is
primordial. It is in this zone that vessels must
strictly observe nautical rules, unless a departure
therefrom becomes necessary to avoid imminent
danger. - Third zone – time when collision is certain and
time of impact.
An error in this zone would no longer be legally
consequential.
Error in Extremis - sudden movement made by a
faultless vessel during the third zone of collision
with another vessel which is at fault during the 2nd
zone. Even if such sudden movement is wrong, no
responsibility will fall on said faultless vessel.
(Urrutia and Co. v. Baco River Plantation Co., 26
PHIL 632)
Cases Covered By Collision and Allision
- One vessel at fault
Vessel at fault is liable for damage caused to
innocent vessel as well as damages suffered by the
owners of cargo of both vessels. (Art. 826) - Both vessels at fault
Each vessel must bear its own loss, but the
shippers of both vessels may go against the
shipowners who will be solidarily liable. (Art. 827) - Vessel at fault not known
Each vessel must bear its own loss, but the
shippers of both vessels may go against the
shipowners who will be solidarily liable. (Art. 828)
Doctrine of Inscrutable Fault – In case of
collision where it cannot be determined which
between the two vessels was at fault, both
vessels bear their respective damage, but both
should be solidarily liable for damage to the
cargo of both vessels. - Third vessel at fault
The third vessel will be liable for losses and
damages. (Art. 831) - Fortuitous event/force majeure
No liability. Each bears its own loss. (Art. 830)
The doctrine of res ipsa loquitur applies in case a
moving vessel strikes a stationary object, such as a
bridge post, dock, or navigational aid. (Far Eastern
Shipping v. CA, Luzon Stevedoring vs. CA)
Even if the cause of action against the common
carrier is based on quasi-delict, the defense of due
diligence in the selection and supervision of
employees is unavailing in case of a maritime tort
resulting in collision. It is not a civil tort governed by
the Civil Code but a maritime one governed by Arts.
826-839 of the Code of Commerce. (Manila
Steamship vs. Insa Abdulhaman)
Doctrine of Last Clear Chance and Rule on
Contributory Negligence cannot be applied in
collision cases because of Art.827 of the Code of
Commerce. (Notes and Cases on the Law on
Transportation and Public Utilities, Aquino, T. &
Hernando, R.P. 2004 ed.)
What is a maritime protest?
Condition precedent or prerequisite to recovery
of damages arising from collisions and other
maritime accidents.
It is a written statement made under oath by the
captain of a vessel after the occurrence of an
accident or disaster in which the vessel or cargo is
lost or damaged, with respect to the circumstances
attending such occurrence, for the purpose of
recovering losses and damages
More rules on Maritime protest
Excuses for not filing protest: 1) where the
interested person is not on board the vessel; and 2)
on collision time, need not be protested. (Art. 836)
Cases applicable:
1. Collision (Art. 835);
2. Arrival under stress (Art. 612(8));
3. Shipwrecks (Arts. 612(15), 843);
4. Where the vessel has gone through a
hurricane or when the captain believes
that the cargo has suffered damages or
averages (Art. 624).
Who makes: Captain
When made: within 24 hours from the time the
collision took place.
Before whom made: competent authority at the
point of collision or at the first port of arrival, if in
the Philippines and to the Philippine consul, if the
collision took place abroad. (Art. 835)
What is a SHIPWRECK?
It is the loss of the vessel at sea as a
consequence of its grounding, or running against an object in sea or on the coast. It occurs when the vessel sustains injuries due to a marine peril
rendering her incapable of navigation.
If the wreck was due to malice, negligence or
lack of skill of the captain, the owner of the vessel
may demand indemnity from said captain. (Art. 841)
The rules on collision or allision, as may be
pertinent, can equally apply to shipwrecks.
Distinguis a CPC from a CPCN
What is the doctrine on CPC or CPCN?
A CPC or a CPCN constitutes neither a franchise
nor a contract, confers no property right, and is a
mere license or a privilege. The holder of said
certificate does not acquire a property right in the
route covered thereby. Nor does it confer upon the holder any proprietary right or interest or franchise n the public highways.
Revocation of this certificate
deprives him of no vested right. New and additional burdens, alteration of the certificate, or even revocation or annulment thereof is reserved to the State. (Luque vs. Villegas, 30 SCRA 408)
What are the REQUREMENTS FOR GRANTING CPC OR CPCN?
- Applicant must be a citizen of the Philippines or
a corporation or entity 60% of the capital of
which is owned by such citizens; - Applicant must prove public necessity;
- Applicant must prove that the operation of the
public service proposed and the authorization
to do business will promote the public interest
on a proper and suitable manner; - Applicant must have sufficient financial
capability to undertake the proposed services
and meeting the responsibilities incident to its
operation.
