VOID STIPULATIONS LIMITING CARRIER'S LIABILITY (2002 bar exams)

1 that the goods are transported at the risk of the shipper;

2 that the shipper is not liable for any loss or destruction of the goods;

3 that the common carrier need not observe any diligence in the custody of the goods;

4 that the common carrier shall exercise a degree of diligence less than that of a good father of a family;

5 that the common carrier shall not be responsible for any acts of its employee; 6 that the common carrier’s liability for acts

committed by thieves, or of robbers who do not act with grave or irresistible threat, violence or force, is dispensed with or diminished;

7 that the common carrier is not responsible for the loss, destruction, or deterioration of goods on account of the defective condition of the car, vehicle, ship, airplane or other equipment used in the contract of carriage.

A stipulation that the common carrier's liability is limited to the value of the goods appearing in the bill of lading, unless the shipper or owner declares a greater value, is binding.

A contract fixing the sum that may be recovered by the owner or shipper for the loss, destruction, or deterioration of the goods is valid, if reasonable and just under the circumstances, and has been fairly and freely agreed upon.

The law of the country to which the goods are to be transported governs the liability of

the common carrier in case of loss, destruction or deterioration.

The provisions of articles 1733 to 1753 shall apply to the passenger's baggage which is not in his personal custody or in that of his employee. As to other baggage, the rules in articles 1998 and 2000 to 2003 concerning the responsibility of hotel-keepers shall be applicable.

Fire may not be considered as a natural disaster or calamity. It does not fall within the category of act of God UNLESS caused by lighting or by natural disaster or calamity. It may even be caused by actual privy or fault of the carrier. (EASTERN SHIPPING vs. IAC)

The Civil Code provisions on Common carrier shall not be applied when the carrier is not acting as such but as a private carrier. The stipulation in the charter party absolving the owner from liability for loss due to the

negligence of its agent would be void only if strict public policy governing common carriers are applied. Such policy has no force when the public at large is not involved, as in the case of a ship totally chartered for the use of a single party (HOME INSURANCE vs. AMERICAN STEAMSHIP)

In case where the Common carrier w/o just cause-

1 Delays the transportation of goods 2 Changes the stipulated route / usual

route

The annulment of the agreement limiting the carrier’s liability is no longer necessary; The carrier cannot simply avail of the benefit /defense of limited liability.

When the conditions printed in the back of the ticket stub are in letters so small that they are hard to read, this would not warrant the presumption that the passenger were aware of those conditions such that he had “fairly and freely agreed” to them . The passenger therefore is not bound by such stipulations. (SHEWARAN vs. PAL)

II. SAFETY OF PASSENGERS

DUTY: A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.

RULE: The responsibility of a common carrier for the safety of passengers as required in articles 1733 and 1755 cannot be dispensed with or lessened by stipulation, by the posting of notices, by statements on tickets, or otherwise.

EXCEPTION: When a passenger is carried gratuitously, a stipulation limiting the common carrier's liability for negligence is valid, but not for willful acts or gross negligence.

The common carrier is liable even if the ticket issued to passenger provides exemption of common carrier from death or injury of paseenger and notices were posted dispensing extraordinary diligence of the common carrier or even if the passenger was given a discount of his fares. (2001 Bar exams)

If the passenger is carried gratuitously, stipulation limiting CC for negligence is valid but not for WILLFUL ACT OR GROSS NEGLIGENCE.

A reduction of fare does not justify any limitation of the common carrier's liability.

 Is the carrier liable for death of or injuries to the passengers due to the negligence or willful acts of ITS EMPLOYEES?

YES, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers.

Illustrative rule: Two passengers engage in a fist-fight inside a bus terminal. An on-duty driver attempts to pacify them but instead kills one. The carrier is liable! But, if the killing of the passenger occurred while the driver is off-duty, the carrier is not liable. (Recall the case of Gillaco v. Manila Railroad, the carrier was held not liable when its employee, a security guard who harbored a grudge against a fellow passenger, shot and killed the latter. The guard committed the killing while he was off-duty.)

The Common carrier is held liable because - 1 The driver , although stopping the

bus, nevertheless did not put off the engine.

2 He started to run the bus even before the conductor gave him the signal to go and while the passenger was still unloading part of the baggage . ( LA MALLORCA vs. CA)

In the case of LACAM vs. SMITH , the Court held that an accident caused by defects in the automobile is not a caso fortuito. The rationale of the carrier’s liability is the fact that the passenger has neither the choice nor control over the carrier in the selection and use of the equipment and appliances in use by the carrier.

Q: Is the carrier liable for death of or injuries to the passengers due to the willful acts or negligence of other passengers or of strangers?

YES, a common carrier is responsible for injuries suffered by a passenger if the common carrier's employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission.

The act of the passengers stabbing another passenger in the bus. To be absolved, the common carrier must prove that it was negligent in preventing the injuries from accident; otherwise, it would be held liable. (Bachelor Express vs. CA 188; SCRA 216) EE riding on train who stepped on watermelons. Held: The conduct of plaintiff in undertaking to alight while the train was yet slightly underway was not characterized by imprudence and that he was not guilty of contributory negligence.

The circumstances show that it was no means so risky for him to get off while the train was yet moving. It is not negligence per se for a traveler to alight from a slowly moving train. (Cangco vs MRR 38 Phil 768)

The DUTY of the PASSENGER is to observe the diligence of a good father of a family to avoid injury to himself. The contributory negligence of the passenger does not bar recovery of damages for his death or injuries, if the proximate cause thereof is the negligence of the common carrier, but the amount of damages shall be equitably reduced.

Condition printed on the back of a passenger ticket commonly known as “CONTRACT OF ADHESION” , being drafted only by one party , usually the corporation , and the only participation of the other party (passenger ) is the signing of his signature “his adhesion thereto calls for greater strictness and vigilance on the part of the court of justice with the view of protecting the weaker party from abuses . Such contract if enforced will be subversive of public good , thus placing the common carrier at a decided advantage over those who may have legitimate claims against it. The said condition is therefore unenforceable, as contrary to public policy- to

make the court accessible to all those who have need of their services.

Moral damages are not recoverable on breach of contract of carriage in view of ART.2219-20 NCC . EXCEPTIONS-

1 Where the mishap results in the death of a passenger; Because the common carrier becomes subject to the rule in ART.2206 NCC entitles the spouse, descendants, ascendants to moral damages for mental anguish as a result of the death of the deceased. 2 2.Where it is proved that carrier was

guilty of fraud or bad faith EVEN if death does not result.

Mere carelessness does not per se justify an inference of malice or bad faith on the part of the common carrier ; Must be GROSS negligence

Concurring causes of action arising from negligent act of the common carrier:

1 Culpa Contractual/breach of contract (2003 Bar Exams)

Only the carrier is primarily liable not the driver, because there is no privity between the driver and the passenger.(Art 1759, NCC.)  No defense of due diligence in the selection and supervision of the employees.

2 Culpa aquiliana (quasi delict)

The carrier and the driver are solidarily liable as joint torfeasors.(Art 2180 NCC)

 Defense of due diligence in the selection and supervision of employees is available. Exception: maritime tort resulting in collision  Although the relation of passenger

and carrier is contractual both in origin and nature, nevertheless, the act that breaks the contract may also be a tort. (Air France vs. Carrascoso; 18 SCRA 155)

In the case of injury to a passenger due to the negligence of the driver of the bus on which the passenger was riding on and of the driver of another vehicle, the drivers as well as the owners of the two vehicles are jointly and severally liable for damages. It should not make any difference that the liability of the bus owner springs from a contract while that of the driver springs from a quasi delict. (Tiu vs. Arriesgado)

3 Culpa criminal( Criminal Negligence) The driver is primarily liable. The carrier is subsidiarilly liable only if the driver is convicted and declared insolvent.(art 100 RPC)

The principle of last clear chance would call for application in a suit between the owners and drivers of the two colliding vehicles. It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations.(Phil. Rabbit Bus Lines vs. CA)

CODE OF COMMERCE OVERLAND