Transpo

Atty. Vivencio F. Abaño - 1 -

CODE OF COMMERCE: TRANSPORTATION OVER LAND

(ARTS. 358, 370-71) (ART. 359,

JURISPRUDENCE)

(ARTS. 363-365) (ART. 366,

JURISPRUDENCE)

(ARTS. 368, 369) (ART. 373)

TIME TO DELIVER

1. when no period fixed: carrier must forward

goods in the first

shipment of same or similar goods.

2. when period fixed:

carrier must deliver

goods within time fixed.

DELAY IN DELIVERY

in case of delay, the

carrier is liable for:

1. indemnity stipulated in

the bill of lading.

2. if no stipulation, damages due to delay

which may not exceed

the current price of the goods on the day and

place of destination.

3. special damages, like

unrealized profit, if carrier foresaw or had

notice of circumstances

leading to the probable occurrence of such

damage.

4. full value of goods, if

consignee should exercise abandonment of

the goods by advising

carrier accordingly prior to arrival at destination.

ROUTE

1. if route agreed upon, carrier may not change it

unless by reason of force

majeure; otherwise, carrier is liable for losses suffered

by goods, and for indemnity stipulated.

2. if no agreed route, carrier must select shortest, least

expensive and practically

passable route (Art. 1747).

DELIVERY PARTIAL DEFECTIVE

the carrier must deliver

the goods in the same

condition and quantity in which they were

received, according to the bill of lading.

1. in case of partial delivery, consignee may

refuse to receive those

delivered if they cannot be used independently of

those not delivered.

2. if the goods delivered

were rendered useless for sale or consumption,

consignee may refuse to receive.

3. if the goods delivered are damaged to such an

extent that their value is

diminished, carrier must pay the difference in

value as judged by experts.

in the first 2 cases, consignee may exercise

abandonment and be entitled to full value of

goods.

CLAIM/SUIT

purpose of following requirements: so carrier can

check validity of claims

while facts are still fresh and documents still

available.

1. when the damage is

ascertainable from the outside part of the package,

the claim must be made at

the time of receipt.

2. when the damage is ascertainable only by the

opening of the package, the

claim against carrier must be made within 24 hours

following receipt (longer period may be stipulated).

3. in both cases, the claim must be made before

payment of transportation

charge.

4. a provisional claim need not state in detail list of

goods lost or damaged, so

long as carrier can make reasonable verification.

5. claim is condition

precedent to right of action,

which must be filed within 2 year from delivery of goods

or denial of claim.

6. sufficient and reasonable

shorter period may be stipulated in the bill of

lading.

MISDELIVERY/NON-DELIVERY

the carrier must deliver the

goods to the consignee or

legitimate holder of the bill of lading.

1. the shipper may order

the return or retention of

the goods by carrier, prior to appearance of consignee

or legitimate holder of ill of

lading.

2. the carrier is liable for damages if it delivers to the

wrong person (misdelivery).

3. if the carrier makes no

delivery or refuses to deliver (non-delivery), the

consignee may sue for

conversion and damages.

4. if consignee cannot be

found in the place indicated in bill of lading, or refuses

to pay transportation charge or to receive goods, the

carrier may deposit goods in

its warehouse or the court; such deposit has the legal

effect of delivery.

claim not a condition

precedent to action, which must be filed within 4 years

if no written contract or 10

years if written contract.

MULTI-CARRIERS

This refers to an arrangement where several

carriers successively

transport the goods, or by a single through bill of

lading issued by a carrier and honored by the other

carriers.

1. in transportation of

goods by successive

carriers, the last carrier assumes the obligation of

the previous carriers.

2. but the last carrier, if

not directly responsible for the loss or damage, may

proceed against the previous carriers.

3. shipper/consignee have right of action against

carrier who executed

transportation contract, or the other carriers who

received goods without reservation.

4. carriers with reservation are not relieved of

responsibilities for their own acts.

H1


VESSELS/PERSONS IN MARITIME COMMERCE

VESSELS SHIPOWNERS/AGENTS CAPTAIN/MASTER OFFICERS PASSENGERS

A. Definition:

1. those with motive

power.

2. means of water transportation (P.D. 474)

B. Excluded:

1. local and foreign military

vessels 2. bancas and other

watercrafts of less than 3 tons gross capacity (P.D.

474)

3. small watercrafts engaged in river and bay

traffic (Art. 835)

C. Classified as personal

property, ownership of which to be recorded in

registry of vessels.

D. Warranty of

seaworthiness:

1. equipped for the voyage

and manned with sufficient number of competent

officers and crew.

2. shipper/passenger not

required to inquire into vessel’s seaworthiness,

genuineness of its licenses,

and compliance with maritime laws.

3. vessel must be

seaworthy at the star of

voyage; carrier not liable if seaworthiness occurs later

due to fault of shipper or passenger.

A. Ship agent (may be shipowner; not a civil agent):

1. entrusted with provisioning vessel.

2. represents vessel in port where she is (Art. 586).

3. represents shipowner in judicial/extrajudicial acts (Art. 595)

B. Civilly liable for:

1. acts and obligations of captain contracted to repair, equip, and provision vessels (Art.

586). 2. indemnities arising from conduct of captain

in the care of goods and passengers carried

by vessel (Art. 587). 3. obligation contracted by captain even

exceeding his powers and privileges, provided made for the benefit of vessel (Art.

588).

4. damages in case of collision by reason of the fault, negligence, or lack of skill of captain or

any member of the complement.

C. Doctrine of limited liability and right of

abandonment (Arts. 587, 590, and 837):

1. because of real and hypothecary nature of

maritime law, liability of shipowner/agent is limited o value of vessel, equipment and

freight during the voyage. 2. shipowner/agent may exempt themselves

from liability by abandoning vessel,

equipment or freight. 3. Creditor cannot refuse offer of

abandonment.

D. Doctrine not applicable:

1. where shipowner/agent is at fault or

concurrently negligent with captain.

2. where shipowner/agent allows his vessel to embark in an unseaworthy condition.

3. where vessel in insured. 4. in Workmen’s Compensation Act.

A. Captain of big vessels for

high sea or coastwide trade; master for smaller vessels for

coastwide trade.

B. Qualifications:

1. Filipino citizen.

2. with skill and

capacity to command and direct vessel.

3. duly licensed by MARINA (Arts. 609,

882)

C. Civilly liable for:

1. damage to vessel

due to lack of

skill/negligence. 2. theft, robberies,

mutiny by crew.

3. abuse of power. 4. unjustified deviation.

5. losses, fines and confiscation imposed

due to violation of

laws and regulations (Arts. 618-620).

D. Defense of force majeure:

1. proximate and only cause.

2. due diligence to

prevent or minimize loss.

3. no delay. 4. protest without 24

hours.

A. Officers must be duly

licensed (PRC and MARINA).

B. Officers include the

following:

1. sailing mate 2. second mate

3. third mate

4. marine engineer (Arts. 627-633)

SUPERCARGOES

in maritime law, a person

specially employed by the owner of cargo to take

charge of and sell

merchandise which have been shipped, to purchase

returning cargoes, and to receive freight, as he may

be authorized (Arts. 649-

651).

A. Refund due to voyage

suspension or interruption:

1. if due to fault of captain or ship agent,

passenger has right to refund of fare and to

damages.

2. if due to force majeure

or fortuitous event, only return of fare or part

thereof in proportion to

distance traveled before interruption (Art. 697).

B. Baggage:

1. passenger is considered a shipper

insofar as the goods he

carries on board.

2. insofar as the goods in the immediate custody of

the passenger, the

captain is not responsible, unless the damage arises

from his act or the crew’s (Art. 703).

Atty. Vivencio F. Abaño - 3 - DAMAGES AND ACCIDENTS IN MARITIME COMMERCE

AVERAGES ARRIVAL UNDER STRESS

COLLISION/ALLISION SHIPWRECKS

Averages are:

1. all extraordinary or accidental expenses

incurred during the voyage

for preservation of the vessel and/or cargo.

2. all damages and deterioration suffered by

vessel from departure to

arrival, and by goods from loading to unloading (Art.

806).

2 Kinds:

1. simple or particular – all

expenses and damages caused to vessel or cargo

which have not incurred to

the benefit and common profit of all persons

interested in the vessel or

cargo (Art. 809). Liable: owner of the goods which

gave rise to the expense of suffered the damage (Art.

810).

2. general or gross – all the

damages and expenses which are deliberately

caused in order to save the

vessel and/or cargo from a real and known risk (Art.

811).

C. Elements of gross

average:

1. common danger.

2. arising from accidents of

sea/disposition of authority.

3. peril imminent and

ascertained.

4. part of vessel or cargos deliberately sacrificed.

5. successful saving of vessel or

cargo. 6. proper legal steps and

authority taken.

D. Effect: all person with interest

in the vessel and cargo saved shall contribute (Art. 812).

Example: total value of vessel and cargos is P10 million broken

down as follows:

Vessel = P5,000,000.00

Cargo 1

= P2,000,000.00

Cargo

2

= P2,000,000.00

Cargo

3

= P1,000,000.00

Cargo 3 is jettisoned to lighten

vessel during storm. Vessel and Cargos 1 and 2 saved thereby.

They must contribute to owner

of Cargo 3 as follows:

Vessel (50%)

= P500,000.00

Cargo 1

(20%)

= P200,000.00

Cargo 2

(20%)

= P200,000.00

the balance of P100,000.00 is

Cargo 3’s own contribution.

E. Proper legal step and

authority:

to incur expenses and

cause damage of

general average, there must be resolution of

the captain after deliberation with other

officers and after

hearing of person present interested in

cargo (Art. 813).

F. Entitlement:

1. to be entitled to

indemnity of gross average, owner of

cargo must prove its

existence by means of a bill of lading, shipowner

must prove by means

of inventory.

2. claims for averages must exceed 5% of the

interest in the cargo or

in the vessel. In the foregoing example, only

a portion of Cargo 3 worth P10,000.00 is

jettisoned. This is only

1% of the total value of P1,000,000.00 of Cargo

3, and hence, its owner

is not entitled to indemnity.

A. Meaning:

arrival of the vessel at the nearest and most

convenient port, when

the captain believes the vessel cannot

continue the voyage to the port of destination

(Art. 819).

once cause of arrival

under stress ceases, captain must continue

voyage, otherwise, he

is liable for damage caused by delay (Art.

825).

B. Justifications:

1. lack of provisions

(not due to negligence

or failure to take necessary provision).

2. well-founded fear of

seizure by pirates

(manifest and based on positive and justifiable

facts).

3. accident disabling

vessel to navigate.

4.damage to vessel

caused by malice, negligence, want of

foresight, or lack of skill of captain (Art.

820).

A. Definition:

collision is the impact of two moving vessels; allision is the

striking of a moving vessel a

stationary one.

in case of risk of collision, each vessel must alter course

to starboard (right) so as to

pass on the portside (left) of the other vessel (Rule 18,

International Rules of the Road).

B. Liability:

1. if collision due to force majeure or fortuitous event,

each vessel and its cargo

liable for its own damage (Art. 830).

2. if collision due to fault, negligence, or lack of skill of

captain or any member of the vessel’s complement, owner

of vessel at fault should

indemnify.

3. if both vessels at fault, each shall suffer its own

damage, and be solidarily

liable for losses and damage suffered by their cargos.

4. owner of a vessel is liable if it caused another vessel to

collide with a third vessel.

5. doubtful collision, same as

#1 (above).

A. Meaning:

when a vessel is damaged rendering her

unable to navigate, or

when the vessel is lost at sea.

B. Liability

1. generally, each owner, whether of the vessel or

cargo shall bear his own loss.

2. if shipwreck or stranding caused by

malice, negligence or lack of skill of captain, or

vessel was insufficiently

repaired and equipped, ship’s agent and/or

shipper may demand

indemnity from the captain.

C. Condition precedent for recovery of

damages/losses: maritime protest under

oath by the captain

within 24 hours, before competent authority

where collision took place at first port of

arrival (Art. 835).


COMMON CARRIER: TRANSPORTATION OF GOODS

(ART. 1766)

GOVERNING LAWS

1. New Civil Code

2. Code of Commerce 3. Special Laws

(ART. 1732)

COMMON CARRIER

1. engaged in the business of

carrying or transporting goods or passengers

a. whether as principal

or ancillary business b. whether on regular/

scheduled basis or occasional/unschedul

ed basis

2. offers its service to the

public a. whether to the

general population

b. or narrow segment of general population

3. for compensation or fixed price or rate

4. control of operation/cargo

(ART. 1733)

EXTRAORDINARY

DILIGENCE/RESPONSIBILITY

1. to transport with greatest skill and utmost foresight

2. utmost vigilance of very cautious person, according to

all circumstances

(ARTS. 1736-1738) DURATION OF

EXTRAORDINARY

RESPONSIBILITY

1. from time goods are unconditionally placed in

possession of and received by

common carrier for transport until actual or constructive

delivery to consignee or person with right to receive.

2. even when goods are temporarily unloaded or stored

in transit, unless shipper used

right of stoppage in transitu.

3.even during time of storage at warehouse of common

carrier at place of destination,

until consignee is advised of goods’ arrival and has had

opportunity to remove or dispose of them.

(ART. 1735)

LOSS, DETERIORATION

OR DESTRUCTION

PRESUMPTION OF NEGLIGENCE

1. not conclusive but

disputable presumption

2. may be overcome by

contrary evidence of

defenses.

(ART.1753)

law of the country of destination shall govern

liability of common carrier for loss,

destruction or

deterioration of goods.

(ART. 1734)

DEFENSES

EXEMPTING OR MITIGATING

LIABILITY

1. natural disaster like flood, storm,

earthquake, lightning.

2. act of public

enemy in war, whether international

or civil.

3. act or omission of owner or shipper of

goods.

4. character of goods or defect in the

packing or container.

5. order or act of

competent public

authority.

(ARTS. 1739-1743)

CONDITIONS TO AVAIL OF

DEFENSES

1. a. proximate and only

cause. b. exercise of

diligence to

prevent or minimize loss.

2. same as in #1

(above).

3. a. if proximate cause,

exempting.

b. if contributory negligence,

mitigating.

4. exercise of due diligence to forestall or

prevent losses.

5. with power to issue

the order.

(ARTS. 1744-1752)

STIPULATION LIMITING

LIABILITY

1. Requisites: a. in writing

b. with valuable

consideration other than the services of

the common carrier c. reasonable, just and

not contrary to

public policy

2. Void Stipulation:

a. unreasonable b. unjust

c. contrary to public policy

3. Valid Stipulation: a. limited to value of

goods appearing in bill of lading

b. fixed sum that is

reasonable and just and agreed upon

c. delay due to strike

or riot

4. Factors to be considered:

a. refusal to carry

goods unless stipulation limiting

liability is signed by shipper

b. delay or deviation

c. lack of presence of competition

H2


TRANSPORTATION OF PASSENGERS

(ARTS. 1733, 1755)

EXTRAORDINARY DILIGENCE

1. to carry passengers

safely as far as human care

and foresight can provide.

2. using utmost diligence of a very cautious person.

3. with due regard for all the circumstances.

NO INSURER OR ABSOLUTE

SAFETY

the common carrier is not

required to exercise all the care, skill or diligence the

human mind can conceive, nor free the passenger from

all possible risks.

PASSENGER

one who travels in a public

conveyance by virtue of an express of implied contract

with the common carrier,

paying fare or what is the equivalent thereof.

(JURISPRUDENCE)

CONTRACT OF CARRIAGE

A. Commencement:

1. (liberal view) when a

person offers to be transported, placing himself

in the care and control of the common carrier who accepts

him as such passenger.

2. (strict view) there is actual

boarding or placing of a part

of the passenger’s body in the vehicle.

B. Termination:

When the passenger alights from the vehicle at the place

of destination and has reasonably opportunity to

leave the common carrier’s

premises.

(ART. 1756)

DEATH OR INJURY TO PASSENGER

PRESUMPTION OF

NEGLIGENCE

disputable and may be

overcome by proof of exercise of extraordinary

diligence.

(ARTS. 1759, 1760)

NON-EXEMPTING OR NON-

LIMITING

1. common carrier is liable due to negligence or willful

act of employee, even if

done beyond scope of authority or in violation of

orders.

2. liability does not cease

with exercise of ordinary diligence by common

carrier.

3. liability is not eliminated

or limited by stipulation posting of notices,

statements on the tickets.

(ARTS. 1757, 1758)

LIMITATION OF LIABILITY

1. liability cannot be dispensed or lessened by

posting of notices,

statements on tickets or otherwise.

2. in gratuitous carriage

stipulation to limit liability

may be valid, but not for willful act or gross

negligence.

3. reduced far does not

justify limiting liability.

(ARTS. 1761, 1762)

DUTY OF PASSENGERS

1. to observe ordinary diligence to avoid injury to

himself.

2. contributory negligence

of passenger does not bar recovery of damages but

reduces amount thereof.

(ART. 1763)

ACTS OF CO-

PASSENGERS OR STRANGERS

1. common carrier is responsible in case of

death or injury on account of willful act or negligence

of other passengers or

strangers --

2. if employees could

have stopped or prevented the act or

omission by exercise of ordinary diligence.

(DEFENSES)

1. exercise of extraordinary diligence by

common carrier.

2. negligent act of the

passenger is proximate cause of death or injury.

3. employees could not

have prevented by

ordinary diligence the willful act or negligence of

other passengers or

strangers which caused injury or death.

4. liability is mitigated by

the contributory

negligence of passenger or his failure to observe

ordinary diligence to avoid injury.

5. stipulation to limit liability is valid in

gratuitous carriage, if no

willful act or gross negligence by common

carrier.


RECOVERABLE DAMAGES

ACTUAL MORAL NOMINAL TEMPERATE LIQUIDATED EXEMPLARY

compensation for pecuniary

loss suffered (Art. 2219).

Kinds:

1. Art. 2200

a. actual loss b. unrealized profit

2. Art. 2205 a. impairment of

earning capacity b. injury to business

standing or

commercial credit

3. Art. 2206 a. fixed indemnity

b. loss of earning

capacity formula: [2/3 (80-age of

death) x gross

income] ÷ 2

4. Arts. 2208-2213 a. attorney’s fee

b. interest

When recoverable:

1. proof of loss, injury or impairment.

2. proof of actual amount

thereof with reasonable degree of certainty premised upon

competent proof.

compensation for physical

suffering, mental anguish, fright, serious anxiety, etc.,

which are the proximate

result of the wrongful act or omission (Arts. 2217, 2219).

Grounds for award:

1. in breach of contract of carriage, there must be fraud,

bad faith, or death (Art. 2220, Jurisprudence).

2. in case of death, heirs entitled to moral damages.

3. only injured passengers

entitled to moral damages

due to his injury (Jurisprudence).

Factors to determine:

1. social, political, official and financial standing of

passenger (Jurisprudence).

2. degree/extent of mental

anguish (Jurisprudence).

3. Sentimental value of

property (Art. 2218).

awarded for

vindication or recognition of a right

which has been

invaded or violated (Art. 2221).

Grounds for

recovery:

1. breach of legal duty

or invasion of legal right even if no actual

damage resulted or

none is shown.

2. no actual, moral, or temperate damages

awarded.

award is more than

nominal but less than actual damages (Art.

2224).

When recoverable:

1. when pecuniary loss

was suffered but the

amount thereof cannot from the very nature

thereof be proved with certainty.

2. when the amount can be proved but the plaintiff

failed to present evidence therefore or submitted the

wrong evidence, nominal

damages is awarded (Jurisprudence).

damages agreed upon in a

contract in case of breach thereof (Art. 2226).

amount stipulated shall be equitably reduced if

iniquitous/unconscionable (Art. 2227).

Example:

1. valid stipulation on limited amount of liability.

2. stipulated indemnity in case of delay.

When recoverable:

1. proof of existence of contract.

2. proof of breach of contract, or of delay in

compliance or fulfillment.

imposed by way of

example or correction for the common good (Art.

2229).

When recoverable:

1. there must be an

award of actual, moral,

temperate or liquidated damages.

2. crime is attended by

aggravating

circumstance.

3. gross negligence in commission of quasi-

delict.

4. contract (of carriage)

is violated in wanton,

fraudulent, reckless, aggressive or malevolent

manner.

When not recoverable:

1. there was good faith.

2. employer is not

subsidiarily liable unless

he participated in or abetted the crime.


SPECIAL LAWS IN TRANSPORTATION (A)

CARRIAGE OF GOODS BY SEA ACT WARSAW CONVENTION

A. Origin/Purpose

COGSA is a US law which was adopted by the RP as C.A. No. 65 in 1936, to govern

contracts for the carriage of goods by sea

to and land from the RP in foreign trade.

B. Primary Law

COGSA is governing law, if stated in bill of

lading or similar document that contract of carriage is subject to its provisions

(Sec. 13). Note effect on Art. 1753 of NCC.

C. Bill of Lading

Prima facie evidence of the receipt by the carrier of the goods as described therein.

(Sec. 3[4]). Contrary evidence may be

presented.

D. Prescriptive Period (Sec. 3[6]).

1. If loss or damage is apparent or

external, notice in writing must be given to carrier or agent at time of

removal of goods by person entitled

to delivery. 2. If loss or damage is not apparent,

within 3 days of delivery. 3. If no notice is given, there is prima

facie evidence of delivery of goods as

described in bill of lading. 4. Notice is not needed if goods jointly

surveyed or inspected at time of their

receipt 5. Whether notice of loss/damage is

given or not, suit must be filed within 1 year after delivery of when goods

should have been delivered,

otherwise, prescribed. 6. If misdelivery, prescriptive period for

suit is 10 years for breach of written contract or 4 years for quasi-delict.

Only the carrier’s liability is extinguished if

no suit is filed within 1 year by shipper,

consignee, or insurer. The prescriptive period does not apply to suits filed by

insured against insurer.

E. Liability (Sec. 4[5]):

1. Maximum of $500 per package or, if

not shipped in packages, per

customary freight unit (e.g. metric ton of bulk shipment).

2. Nature and value of goods may be declared by shipper and inserted in

bill of lading; declaration is prima

facie evidence and not conclusive on carrier.

3. Shipper and carrier may agree on another maximum amount, but not

more than amount of damage

actually sustained.

When the packages are shipped in a

container supplied by carrier and the number of such units is stated in the bill

of lading, each unit and not the container constitute the “package.”

F. No liability (Sec. 4[6]):

1. If nature or value of goods knowingly and fraudulently misstated by

shipper.

2. If damage resulted from dangerous nature of shipment loaded without

consent of carrier.

3. If unseaworthiness not due to negligence of carrier.

4. If deviation was to save life or property at sea.

A. Origin/Purpose

Signed first by 30 countries in October 1929 to establish uniform system of rules

for international air transportation of

persons, baggage, or goods. RP concurred in 1950.

B. Liability of Carrier (Arts. 17-21):

1. Death or injury happening on board aircraft or during

embarking/disembarking. 2. Destruction, loss, or damage to

checked baggage or goods while in

the charge of the carrier, whether on board aircraft or in airport.

3. Damage occasioned by delay.

Defense: Exercise of extraordinary

diligence; impossibility to prevent damage; contributory negligence.

C. Excluded:

Under WC, to be prosecuted as quasi-delict or breach of contract under New

Civil Code: refusal to bard, bumping off,

downgrading, disrespect, abusive and insulting language, etc.

D. Limited Liability (Arts. 22-25):

1. 125,000F per passenger, unless

higher limit is agreed upon. 2. 250F per kilo of checked

baggage/good unless declaration of

higher value and added payment made.

3. 5,000F per handcarried baggage.

Condition: no willful misconduct

Stipulation to lower limit or to exempt

from liability is void.

E. Prescriptive Period (Arts. 26 & 29)

1. In case of damage, written complaint within 3 days from

receipt of baggage, and 7 days

from receipt of goods. 2. In case of delay, 14 days from

delivery of goods/baggage. 3. No action lies if complaint

beyond period, unless there is

fraud. 4. Action must be filed within 2

years from date of arrival, or when ought to arrive, or when

transportation stopped.

F. Defendants (Art. 30):

1. In case of successive carriers,

the carrier in which the accident

or delay occurred, unless, by express agreement first carrier

assumed liability for entire

journey. 2. As regards baggage or goods,

passenger/consignor may sue against first carrier;

passenger/consignee against last

carrier; or against carrier in which destruction, loss, or

damage occurred; all carriers jointly and severally liable.

G. Jurisdiction (Art. 28):

Plaintiff has option to file for damages at:

1. Domicile of carrier 2. Principle place of business of

carrier 3. Where carrier has business

through which contract made

4. Place of destination


SPECIAL LAWS IN TRANSPORATION (B)

SALVAGE LAW

(R.A. 2616)

SHIP MORTGAGE DECREE

(P.D. 1521)

LAND TRANSPORTATION TRAFFIC

CODE (R.A. 4136)

IATA TARIFF RULES

A. Definitions:

1. Service rendered to preserve the

goods or ship which the owner

has either abandoned in distress at sea or is unable to protect or

secure. 2. Compensation to one by whose

assistance a ship or its cargo has

been saved from impending danger or recovered from actual

loss. 3. Vessel or cargo recovered from

abandonment at sea.

B. Elements of valid salvage:

1. Marine peril

2. Voluntary service

3. Success in whole or part

A. Purpose of mortgage:

To finance the construction, acquisition,

purchase of vessel, or initial inspection

thereof.

B. Conditions for preferred mortgage:

1. Registration with PCG

2. Affidavit of good faith 3. No waiver of preferred status

C. Preferred mortgage has priority over all

claims against the vessel, except:

1. Taxes, crew’s wages, general average, salvage, damages

arising out of torts 2. Preferred mortgages registered

prior in time

3. Maritime lien arising prior to registration of preferred

mortgage (Sec. 17)

D. Maritime lien for necessities:

Any person furnishing repairs, supplies,

tonnage, use of dry dock or other

necessities to any vessel, upon the order of its owner or the latter’s authorized

representatives, shall have a maritime lien on the vessel which may be enforced

by a suit in rem and it shall be necessary

to allege or prove that credit was given to the vessel (Sec. 21)

1. A motor vehicle must be registered for

the current year, as a condition for its operation on a public road or highway.

2. A person can still drive a vehicle even

without possessing his driver’s license, albeit he may be violating traffic rules.

(Manuel v. CA, 227 SCRA 29). 3. A person driving with an expired and

unrenewed license is deemed not to

have any license at all. 4. Insurance requires an “authorized

driver” who is either the insured of a person driving on insured’s order or

with his permission, provided he

abides with licensing rules. A driver with expired Traffic Violation Receipt

(TVR) or Temporary Operation Permit (TOP) is not an authorized driver

within the meaning of insurance policy.

5. Mortgage, attachment, or other encumbrances on a motor vehicle must

be registered and recorded on the face

of the Certificate of Registration.

Under the rules of the International Air

Transportation Association (IATA), an airplane ticket is valid for one year.

That is the time allowed the passenger to begin and complete his trip. A passenger

ca no longer use an expired ticket to complete his trip. He must purchase a

new ticket for the remaining portion of his

journey (Air France v. CA, 126 SCRA 449).


CONTRACTS IN MARITIME COMMERCE (B)

MULTI-MODAL TRANSPORT FREIGHT FORWARDING ARRESTRE/STEVEDORING CONTRACT OF TOWAGE

A. International Trade

Transport of goods is by more than one carrier or mode of transportation.

Containerization enhances transport

capabilities in the transfer of goods from ship to truck, train, plane, or other ship.

B. Definition

Multi-modal transport operator (MTO) means any person who concludes a multi-

modal contract and assumes responsibility for the performance thereof by a carrier.

Multimodal transport contract means a single contract for the carrier of goods by

at least two different modes of transport.

Considering the variety of cultures,

languages, and commercial practices of both ends of the trade, it is reasonable to

let one qualified operator organize and be

responsible and accountable for the entire transport chain (UNCTAD-ICC Rules for

Multi-modal Transport)

A. Forwarding Agent

It receives and arranges to forward or send the goods to their destination by the

instrumentality of the actual carrier,

without assuming the role and responsibility of the carrier, and is

compensated for his services by the shipper. He is an agent and a

warehouseman for the shipper, and must

exercise the care and diligence of a prudent man.

B. Freight Forwarder

A transport intermediary which publishes its own tariff, issues its own bill of lading,

and assumes all responsibilities of a common carrier without operating its own

vessel. This Nonvessel Operating Common

Carrier (NVOCC) acts a shipper in relation to the actual carrier, and as a carrier to

the shipper. He charges for the entire

distance, and assumes responsibility for the transportation of the goods from point

of receipt to point of destination.

C. Cargo Consolidator

It consolidates small shipments for

various consignors/consignees by procuring vessel/container space from

carriers and issuing its own bill of lading.

Its destination agents distribute the small shipments to the consignees named in the

consolidator’s manifest.

A. Stevedoring means all works performed on board

vessel, such as loading or unloading cargo, stowing

inside hatches, compartments, and on decks or open cargo spaces on bard vessel. May include other

services like:

1. Rigging/unrigging of ship’s gears

2. Opening or closing of hatches 3. Snatching, centering to the hatch, opening,

passing of cargo

4. Providing standard stevedoring gears and equipment as required by cargo type

5. Also: cleaning holds, shifting of cargoes, shoring/unshoring of cargoes,

lashing/unlashing of cargoes, rebagging and

sweeping, and stuffing/unstuffing of containers on board vessel.

Stevedoring refers to the handling of the cargo in the

holds of the vessel or between the ship’s tackle and

the holds of the vessel.

B. Arrastre means the set of shore-based cargo

handling activities which include the following:

1. Receive/load cargo from/to ship’s tackle with the use of dock gangs and cargo handling

equipment

2. Check cargo by marks and quantity, acknowledge and sign tally sheets, sort, pile,

stow, and classify cargoes in sheds/open storage/warehouse, if not taken/delivered

from truck

3. Check and recoup bad order and damaged cargoes caused by contractor

4. Secure cargo from pilferage or losses while

under cargo handler’s custody 5. Provide manpower, equipment, and such

other necessary cargo handling gears for receiving/ stowing/ delivery/ transfer/

shifting/ pelletizing cargo

Arrastre refers to the handling of cargo on the wharf or

between the establishment of the consignee or shipper and the ship’s tackle.

A. Definition

A contract for hire of services by which a vessel is hired to

tow another vessel from one

part to another for a consideration.

B. Entitled

Only the owner of the towing vessel can ask for

compensation for the towage. Not the captain, even if the

owner waived the claim for

the towage, unless the owner assigned or conveyed his

right to the captain.


PUBLIC SERVICE

PUBLIC UTILITIES REGULATORY AND FRANCHISING BODIES FUNCTIONS

Renders services essential to

general public.

Impressed with public interest and concern.

Subject to POLICE POWER which

is legislative prerogative/power

CONGRESS delegates its power and responsibilities to regulate

public utilities

Regulatory bodies/Administrative

and Quasi-Judicial Agencies

POTESTAS DELEGATA NON

DELGARI POTEST

A. Franchising/Licensing

1. Regulatory bodies grant CPC; grant of CPCN requires prior

congressional franchise.

2. Requirements: Filipino citizenship, financial capability, public need.

3. Due process: notice and hearing.

B. Regulation

1. Cancellation or suspension of

CPN/CPCN; imposition of fine. (Reasons: e.g. unreliable service,

frequent accidents)

2. Due process: notice and hearing. (Reasons: franchise is property

and not merely privilege; non-impairment of contract if

investment made).

C. Rate Fixing/Determination

1. Quasi-judicial function 2. Goal: balance between private

and public demands; just and reasonable rate for both.

3. Fair return on investment vs.

confiscatory measures. 4. Affordability vs. discrimination

BOT (transportation)

LTO/LTFRB (land transport) TRB (toll road)

PCG/MARINA (water transport)

PPA (ports)

CAB (air transport)

MIAA (NAIA airport) CAAP (other airports)

LTO/LTFRB (land transport) TRB (toll road)

NTC (Communication)

BPW (power/waterworks)

ERB-ERC (power) NEA (electric

cooperatives)

NWRB (waterworks) LWUA (water districts)

C.A. 146

(1936)

P.D. 1

(1972)

E.O.’s

Special cases: 1. Local Government (Local Autonomy Code)

- franchising of tricycles 2. Special Economic Zones: CDC & SBMA

- communication franchises within their respective zones

PSC

(Public Service

Commission)

1936-1972

Documents

Transpo