impediment to the maintenance of a civil action based on quasi‐delict. Q: When is a protest required? A: 1. Arrival under stress; (Art. 612 [8]) 2. Shipwreck; (Arts. 601 [15], 843)
3. If the vessel has gone through a hurricane or where the captain believes that the cargo has suffered damages or averages; (Art. 642) and 4. Maritime collision. (Art. 835) Q: Who can file a maritime protest? A:
1. In case of maritime collision, the passenger or other persons interested who may be on board the vessel or who were in a condition who can make known their wishes (Arts. 835‐836) or the captain himself. (Verzosa and Ruiz v. Lim, G.R. No. 20145, Nov. 15, 1923) 2. The captain in cases of: a. Arrival under stress b. Shipwreck; or
c. If the vessel has gone through a hurricane or where the captain believes that the cargo has suffered damages or averages.
Q: Two vessels figured in a collision resulting in considerable loss of cargo. The damaged vessels were safely conducted to a port. Kim, a passenger and Ruby, a shipper who suffered damage to his cargo, did not file maritime protest. Can Kim and Ruby successfully maintain an action to recover losses and damages arising from the collision? A: Ruby, the shipper can successfully maintain an action to recover losses and damages arising from the collision notwithstanding his failure to file a maritime protest since the filing thereof is required only on the part of Kim, who, being a passenger of the vessel at the time of the collision, was expected to know the circumstances of the collision. Kim's failure to file a maritime protest will therefore prevent him from successfully maintaining an action to recover his losses and damages. (Art 836).(2007
Bar Question)
Q: During a typhoon, vessel SS Anna collided with M/V Joanna. The collision would be avoided if the captain of SS Anna was not drunk
and the captain of SS Joanna was not asleep. Who should bear the damages to the vessels and their cargoes?
A: The ship owners of SS Anna and M/V Joanna
shall each bear their respective loss of vessels. For the losses and damages suffered by their cargoes, both ship owners are solidarily liable. (1998 Bar
Question)
Q: What is a shipwreck?
A: The loss of the vessel at sea as a consequence
of its grounding, or running against an object in sea or on the coast. 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. Q: Who shall bear the losses in shipwreck? A: GR: The loss of a ship and her cargo shall fall upon their respective owners. (Art. 840)
XPN: If the wreck was due to malice,
negligence, or lack of skill of the captain, or because the vessel put to sea was insufficiently repaired and equipped, the ship agent or the shippers may demand indemnity from the captain for the damage caused to the vessel or to the cargo by the accident.
(Art. 841)
Q: What is arrival under stress?
A: It is the arrival of a vessel at the nearest and
most convenient port, if during the voyage the vessel cannot continue the trip to the port of destination on account of the lack of provisions, well‐founded fear of seizure, privateers or pirates, or by reason of any accident of the sea disabling it to navigate. (Art. 819)
Note: In arrival under stress, the captain must file a Protest which is merely a disclaimer for the shipowner not to be liable.
Q: When is arrival under stress unlawful?
A:
1. Lack of provisions is due to negligence to carry according to usage and customs 2. Risk of enemy not well known of
manifest
3. Defect of vessel is due to improper repair; or
4. Malice, negligence, lack of foresight or skill of captain. (Art. 820)
D. CARRIAGE OF GOODS BY SEA ACT Q: When will COGSA apply?
A: It will only be applied in terms of loss or
damage of goods transported to and from Philippine ports in foreign trade. It may also apply to domestic trade when there is a paramount clause in the contract.
Q: What cases are covered under the COGSA?
A: It applies only in case of loss or damage, and
not to misdelivery or conversion of goods. (Ang v.
American Steamship Agencies, Inc., G.R. No. L‐ 22491, Jan. 27, 2967)
Also, the deterioration of goods due to delay in their transportation constitutes "loss" or "damage" within the meaning of Sec. 3(6) of COGSA. (Mitsui O.S.K. Lines Ltd. v. CA, G.R. No.
119571, Mar. 11, 1998)
Q: When should notice be filed in case of damage to goods under the COGSA?
A:
1. If the damage is apparent – Notice must be immediately given. The notice may either be in writing or orally.
2. If the damage is not apparent – Notice must be given within 3 days after delivery.
Q: What is the consequence if no notice was filed?
A: There is no consequence on the right to bring
suit if no notice is filed unlike under the Code of Commerce. It only gives rise to a presumption that the goods are delivered in the same condition as they are shipped.
There is also no consequence if the transportation charges and expenses are paid unlike under the Code of Commerce.
Q: Clause 18 of the bill of lading provides that the owner should not be liable for loss or damage of cargo unless written notice thereof was given to the carrier within 30 days after receipt of the goods. However, Section 3 of the Carriage of Goods by Sea Act provides that even if a notice of loss or damage is not given as required, "that fact shall not affect or prejudice the right of the shipper to bring suit within one
year after the delivery of the goods." Which of these two provisions should prevail?
A: Clause 18 must of necessity yield to the
provisions of the Carriage of Goods by Sea Act in view of the proviso contained in the same Act which says: "Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods or lessening such liability otherwise than as provided in this Act, shall be null and void and of no effect." (Sec. 3) This means that a carrier cannot limit its liability in a manner contrary to what is provided for in said Act, and so clause 18 of the bill of lading must of necessity be null and void. (E. E. Elser, Inc. v. CA, G.R. No. L‐6517, Nov. 29, 1954) Q: When should suits for loss or damage of cargo be brought?
A: The suit should be brought within one year
from:
1. Delivery of the goods, in case of damage; or
2. The date when the goods should have been delivered, in case of loss.
Q: To whom should such delivery be made as basis of the computation of the one‐year period? A: The one‐year period is computed from the
delivery of goods to the operator and not to the consignee.
Q: What instances do the one‐year period apply?
A:
1. Amendment of pleadings for lack of jurisdiction
2. Filing of third party complaint
3. Loss or damage to cargo, excluding delay or misdelivery
4. Subrogation. (Art 2207, NCC)
Q: When is the one year period in the COGSA interrupted?
A:
1. When an action is filed in court; or 2. When there’s a contrary agreement
between the parties