negligent driver under Art. 103 of the RPC v. Action based on quasi-delict
ART. 103, RPC ART. 2180, NCC (QUASI-DELICT) Employer is only
subsidiarily liable.
Liability is primary and direct.
There must be a judgment of conviction against the negligent driver otherwise the action against the employer would be premature.
Action may proceed independently from the criminal action.
The defense of due diligence in selection and supervision of employees cannot be invoked.
The defense of due diligence in selection and supervision of employees may be invoked.
BILL OF LADING
It is a written acknowledgment of receipt of goods and agreement to transport them to a specific place and to a named person or to his order (Unsworth
Transport International [Phils] v. CA, G.R. No. 166520, 26 July 2010).
THREE-FOLD CHARACTER OF A BILL OF LADING Three-fold character of a bill of lading
It is a receipt for the goods shipped and a contract to transport and deliver the same as therein stipulated.
1. As a receipt, it recites the date and place of shipment, describes the goods as to quantity, weight, dimensions, identification marks and condition, quality, and value.
2. As a contract, it names the contracting parties, which include the consignee, fixes the route, destination, and freight rate or charges, and stipulates the rights and obligations assumed by the parties (Phoenix Assurance Co., Ltd. v. United
States Lines, G.R. No. L-24033, Feb. 22, 1968).
3. As a document of title it regulates the relations between a carrier and a holder of the same.
NOTE: In the absence of a bill of lading, their respective
claims may be determined by legal proofs which each of the contracting parties may present in conformity with law.
Two types of bill of lading
1. Negotiable – If issued to the bearer or to the order of any person named in such bill.
2. Non-negotiable – If issued to a specific person named in such bill.
Q: X is a trader of school supplies in Calapan, Oriental Mindoro. To bring the school supplies to Calapan, it has to be transported by a vessel. Because there were so many passengers, the two (2) boxes of school supplies were loaded but the shipping company was not able to issue the Bill of Lading. So, on board, the Ship Captain issued instead a "shipping receipt" to X indicating the two (2) boxes of school supplies being part of the cargo of the vessel. Which phrase therefore, is the most accurate? (2012 Bar Question)
a. the owner of the vessel is not liable because no bill of lading was issued to X hence, no contract of carriage was perfected.
b. it is possible to have a contract of carriage of cargo even without a bill of lading, and the "shipping receipt" would be sufficient.
c. the only acceptable document of title is a Bill of Lading.
d. None of the above.
A: B. Although Article 359 of the Code of Commerce provides that “the shipper as well as the carrier of merchandise or goods may mutually demand that a bill of lading be made,” still, said bill of lading is not indispensable. For as long as there is a meeting of the minds of the parties, a contract of carriage exists even in the absence of a bill of lading (Perez, supra,
pg. 112, citing Robles vs. Santos, 44 OG 2268; Compania Maritima vs. Insurance Co. of NA, 12 SCRA 213).
Technical jargons
1. On Board – States that the goods have been received on board the vessel which is to carry the goods and is issued when goods have been placed aboard a ship with every reasonable expectation that the shipment is as good as on its way.
2. Received for Shipment Bill – States that the goods have been received for shipment with or without specifying the vessel by which the goods are to be shipped and are issued whenever conditions are not normal and that there is insufficiency of shipping space.
3. Clean – Does not contain any notation indicating defect in the goods
4. Foul – Contains a notation indicating a defect in the goods
5. Spent – If the goods were already delivered but the bill of lading was not returned
6. Through - Issued by a carrier who is obliged to use the facilities of other carriers as well as his own facilities for the purpose of transporting the goods from the city of the seller to the city of the buyer, which bill of lading is honored by the second and other interested carriers who do not issue their own lading.
7. Custody – The goods are already received by the carrier but the vessel indicated has not yet arrived in the port
8. Port - The vessel indicated in the bill of lading that will transport the goods is already in the port
Q: A bill of lading indicated that the contract of carriage was under a "said to weigh" clause. What are the responsibilities of the shipper and the carrier?
A: This means that the shipper was solely responsible for the loading of the container, while the carrier was oblivious to the contents of the shipment . The arrastre operator was, like any ordinary depositary, duty-bound to take good care of the goods received from the vessel and to turn the same over to the party entitled to their possession, subject to such qualifications as may have validly been imposed in the contract between the parties. The arrastre operator was not required to verify the contents of the container received and to compare them with those declared by the shipper because, as earlier stated, the cargo was at the shipper’s load and count (Asian Terminals Inc. v. Simon Enterprises, Inc., G.R. No. 177116, February 27, 2013).
DELIVERY OF GOODS
The surrender of the bill of lading is necessary upon delivery of the goods
If the carrier fails to require such surrender:
1. If non-negotiable – Action against the carrier does not lie.
2. If negotiable – Action by the shipper may lie against the carrier
However, where the seller instructed the shipping company to deliver the cargoes to the buyer without requiring the presentation of the bill of lading, the shipping company is not liable for releasing the cargoes to the buyer (Macam v. CA, 313 SCRA 77).
NOTE: The surrender of the original bill of lading is not a
condition precedent for a common carrier to be discharged of its contractual obligation. If surrender of the original bill of lading is not possible, acknowledgment of the delivery by signing the delivery receipt suffices (National Trucking and
Forwarding Corporation v. Lorenzo Shipping Corporation, G.R. No. 153563, February 27, 2005).
Period of delivery of goods
If a period has been fixed for the delivery of the goods, it must be made within such time, and, for failure to do so, the carrier shall pay the indemnity stipulated in the bill of lading, neither the shipper nor the consignee being entitled to anything else (Code of
Commerce, Art. 370).
Duty of the carrier if there is no period of time fixed for the delivery of goods
The carrier shall be under the obligation to forward them with the first shipment of the same or similar merchandise he may make to the point where he must deliver them, and should he not do so, the damages occasioned by the delay shall be suffered by him (Code of Commerce, Art. 358).
Determination of indemnity if the same is not stipulated
If no indemnity has been stipulated and the delay exceeds the time fixed in the bill of lading, the carrier shall be liable for the damages which the delay may have caused (Art. 370, Code of Commerce).
Grounds for the refusal of a consignee to take delivery of the goods (PLD2)
1. When a Part of the goods transported are delivered and the consignee is able to prove that he cannot make use of the part without the others; (Code of Commerce, Art. 365)
2. If the cargo consists of Liquids and they have leaked out, nothing remaining in the containers but one-fourth (¼) of their contents, on account of inherent defect of cargo; (Code of Commerce,
Art. 687)
3. If the goods are Damaged and such damage renders the goods useless for the particular purpose for which there are to be used; (Code of
Commerce, Art. 365)
4. When there is Delay on account of the fault of the carrier; (Code of Commerce, Art. 371)
NOTE: In all cases, the shipper may exercise the right of
abandonment by notifying the carrier. Ownership over damaged goods passes to the carrier and carrier must pay shipper the market value of the goods at point of destination.