1. COMMON CARRIERS; LOSS OF SHIP AND CARGO; FORCE MAJEURE. — Loss of a ship and of its cargo, in a wreck due to accident or force majeure must, as a general rule, fall upon their respective owners, except in cases where the wrecking or stranding of the vessel occurred through malice, carelessness or lack of skill on the part of the captain and in the remaining cases indicated in article 841 of the Code of Commerce.

2. ID.; ID.; ID.;-EXEMPTION FROM LIABILITY. — Under article the Code of Commerce transportation of merchandise is for account, risk and hazard of the shipper, unless the contrary has been expressly stipulated. The carrier is exempt from liability if he prove, as it is incumbent upon him to do, that the loss or destruction of the merchandise was due to accident and force majeure and not to fraud, fault, or negligence on the part of the captain or owners of the ship.

This is an appeal through bill of exceptions, by counsel for the firm of Inchausti & Co., from a judgment rendered by the Honorable A. S. Crossfield, judge.

On January 11, 1909, the Chinaman, Tan Chiong Sian or Tan Chinto, filed a written complaint, which was amended on the 28th of the same month and again amended on October 27 of the same year, against the said firm, wherein he alleged, among other things, as a cause of action: That, on or about November 25, 1908, the plaintiff delivered to the defendant 205 bundles or cases of general merchandise belonging to him, which Inchausti & Co., upon receiving, bound themselves to deliver in the pueblo of Catarman, Province of Samar, to the Chinaman, Ong Bieng Sip, and in consideration of the obligations contracted by the defendant party, the plaintiff obligated himself to pay to the latter the sum of P250 Philippine currency, which payment should be made upon the delivery of the said merchandise in the said pueblo of Catarman; but that the defendant company neither carried nor delivered the aforementioned merchandise to the said Ong Bieng Sip, in Catarman, but unjustly and negligently failed to do so, with the result that the said merchandise was almost totally lost; that, had the defendant party complied well and faithfully with its obligation, according to the agreement made, the merchandise concerned would have had a value of P20,000 in the said pueblo of Catarman on the date when it should have been delivered there, wherefore the defendant party owed the plaintiff the said sum of P20,000, which it had not paid him, or any part thereof, notwithstanding the many demands of the plaintiff; therefore the latter prayed for judgment against the defendant for the said sum, together with legal interest thereon from November 25, 1908, and the costs of the suit.

Counsel for the defendant company, in his answer, set forth that he admitted the allegations of paragraphs 1 and 2 of the complaint, amended for the second time, and denied those of paragraphs 3, 4, 5, 6, and 7 of the same. As his first special defense, he alleged that on or about November 28, 1908, his client, the said firm, received in Manila from Ong Bieng Sip 205 bundles, bales, or cases of merchandise to be placed on board the steamer Sorsogon, belonging to the defendant, for shipment to the port of Gubat, Province of Sorsogon, to be in the said port transshipped into another of the defendant’s vessels for transportation to the port of Catarman, Samar, and delivered to the aforesaid Chinaman, Ong Bieng Sip; that the defendant company, upon receiving the said merchandise from the latter, Ong Bieng Sip, and on its entering into a contract of maritime transportation with him did not know and was not notified that the plaintiff, Tan Chiong Sian, had any interest whatever in the said merchandise and had made with the plaintiff no contract relative to the transportation of such goods, for, on receiving the latter from the said Ong Bieng Sip, for transportation, there were made out and delivered to him three bills of lading, Nos. 38, 39, and 76, which contained a list of the goods received and, printed on the back thereof were the terms of the maritime transportation contract entered into by and between the plaintiff and the defendant company, copies of which bills of lading and contract, marked as Exhibits A, B, and C, are of record, attached to and made an integral part of the said answer; that Ong Bieng Sip accepted the said bills of lading and the contract extended on the backs thereof; that the merchandise mentioned was put on board the steamer Sorsogon and carried to the port of Gubat, Province of Sorsogon, where this vessel arrived on November 28, 1908, on which date the lorcha Pilar, into which the said merchandise was to be transshipped for carriage to Catarman, was not at Gubat, and therefore the goods had to be unloaded and stored in the defendant company’s warehouses at Gubat; that, on the 4th of December of the same year, the lorcha Pilar arrived at Gubat and, after the termination of certain necessary work, the goods received from the Chinaman, Ong Bieng Sip, were taken aboard the same, together with other merchandise belonging to the defendant party, for the purpose of transportation to the port of Catarman; that, before the said lorcha could leave for its destination, a strong wind arose which in the course of the day increased in force until, early in the morning of the following day, the lorcha was dragged and driven, by the force of the storm, upon the shore, despite the means employed by the crew to avoid the accident, and notwithstanding the five anchors that held the craft, which was thus wrecked and completely destroyed and the merchandise with which it was laden, including the 205 bundles or packages taken aboard for the said Chinaman, was scattered on the shore; that, on that occasion, the lorcha Pilar was in good condition, provided with all the proper and necessary equipment and accessories and carried a crew of sufficient number in command of a skillful patron or master, wherefore the wreck of the said craft was solely due to the irresistible force of the elements and of the storm which drove it upon the shore; that the defendant company, with the greatest possible diligence, gathered up the said shipwrecked goods that had been shipped by the Chinaman, Ong Bieng Sip, but, owing to the damage they had suffered, it was impossible to preserve them, so, after having offered to deliver them to him, the defendant proceeded, in the presence of a notary, to sell them at public auction and realized from the sale thereof P1,693.67, the reasonable value of the same in the condition in which they were after they had been gathered up and salved from the wreck of the lorcha Pilar; that the expenses occasioned by such salvage and sale of the said goods amounted to P151.35, which were paid by the defendant party; that the latter offered to the Chinese shipper, the plaintiff, the amount realized from the sale of the said merchandise, less P151.35, the amount of the expenses, and the sum of P250, the amount of the freight stipulated, and is still willing to pay such products of the said sale to the aforementioned Ong Bieng Sip or to any other person who should establish his subrogation to the rights of the Chinaman, Ong Bieng Sip, with respect to the said amount; that, as his client’s second special defense, the defendant company alleged that one of the conditions of the shipping contract executed between it and the Chinaman, Ong Bieng Sip, relative to the transportation of the said merchandise, was that the said firm should not be held liable for more than P25 for any bundle or package, unless the value of its contents should be stated in the bill of lading, and that the shipper, the Chinaman, Ong Bieng Sip, did not state in the bill of lading the value of any of the bundles or packages in which the goods shipped by him were packed. Counsel for the defendant company, therefore, prayed the court to absolve his client from the complaint, with the costs against the plaintiff.

After the hearing of the case and the introduction of testimony by the parties, judgment was rendered, on March 18, 1910, in favor of the plaintiff, Tan Chiong Sian or Tan Chinto, against the defendant Inchausti & Co., for the sum of P14,642.63, with interest at the rate of 6 per cent per annum from January 11, 1909, and for the costs of the trial. The defendant party appealed from this judgment.

This suit was brought for the purpose of collecting a certain sum which it is alleged the defendant firm owes the plaintiff for losses and damages suffered by the latter as a result of the former’s noncompliance with the terms of an agreement or contract to transport certain merchandise by sea from this city to the pueblo of Catarman, Island of Samar, for the sum of P250.

The principal question to be determined is whether the defendant is liable for the loss of the merchandise and for failure to deliver the same at the place of destination, or whether he is relieved from responsibility on the ground of force majeure.

Article 1601 of the Civil Code prescribes:jgc:chanrobles.com.ph

"Carriers of goods by land or by water shall be subject with regard to the keeping and preservation of the things entrusted to them, to the same obligations as determined for innkeepers by articles 1783 and 1784.

"The provisions of this article shall be understood without prejudice to what is prescribed by the Code of Commerce with regard to transportation by sea and land.

Article 1602 reads:jgc:chanrobles.com.ph

"Carriers are also liable for the loss of and damage to the things which they receive, unless they prove that the loss or damage arose from a fortuitous event or force majeure."cralaw virtua1aw library

The articles aforecited are as follows:jgc:chanrobles.com.ph

"ART. 1783. The depositum of goods made by travelers in inns or hostelries shall also be considered a necessary one. The keepers of inns and hostelries are liable for them as such bailees, provided that notice thereof may have been given to them or to their employees, and that the travelers on their part take the precautions which said innkeepers or their substitutes may have advised them concerning the care and vigilance of said goods.

"ART. 1784. The liability referred to in the preceding article shall include damages to the goods of the travelers caused by servants or employees of the keepers of inns or hostelries as well as by strangers, but not those arising from robbery or which may be caused by any other case of force majeure."cralaw virtua1aw library

Article 361 of the Code of Commerce provides:jgc:chanrobles.com.ph

"Merchandise shall be transported at the risk and venture of the shipper, unless the contrary was expressly stipulated.

"Therefore, all damages and impairment suffered by the goods in transportation, by reason of accident, force majeure, or by virtue of the nature or defect of the articles, shall be for the account and risk of the shipper.

"The proof of these accidents is incumbent on the carrier.

"ART. 362. The carrier, however, shall be liable for the losses and damages arising from the causes mentioned in the foregoing article if it is proved that they occurred on account of his negligence or because he did not take the precautions usually adopted by careful persons, unless the shipper committed fraud in the bill of lading, stating that the goods were of a class or quality different from what they really were.

"If, notwithstanding the precaution referred to in this article, the goods transported run the risk of being lost on account of the nature or by reason of an unavoidable accident, without there being time for the owners of the same to dispose thereof, the carrier shall proceed to their sale placing them for this purpose at the disposal of the Judicial authority or of the officials determined by special provisions.

"ART. 363. With the exception of the cases prescribed in the second paragraph of article 361, the carrier shall be obliged to deliver the goods transported in the same condition in which, according to the bill of lading, they were at the time of their receipt, without any detriment or impairment, and should he not do so, he shall be obliged to pay the value of the goods not delivered at the point where they should have been and at the time the delivery should have taken place.

"If part of the goods transported should be delivered the consignee may refuse to receive them, when he proves that he can not make use thereof without the others."cralaw virtua1aw library

On November 25, 1908, Inchausti & Co. received in Manila from the Chinaman, Ong Bieng Sip, 205 bundles, bales or cases of goods to be conveyed by the steamer Sorsogon to the port of Gubat, Province of Sorsogon, where they were to be transshipped to another vessel belonging to the defendant company and by the latter transported to the pueblo of Catarman, Island of Samar, there to be delivered to the Chinese shipper with whom the defendant party made the shipping contract. To this end three bills of lading were executed, Nos. 38, 39, and 76, copies of which, marked as Exhibits A, B, and C, are found on pages 13, 14, and 15 of the record.

The steamer Sorsogon, which carried the goods, arrived at the port of Gubat on the 28th of that month and as the lorcha Pilar, to which the merchandise was to be transshipped for its transportation to Catarman, was not yet there, the cargo was unloaded and stored in the defendant company’s warehouses at that port.

Several days later, the lorcha just mentioned arrived at Gubat and, after the cargo it carried had been unloaded, the merchandise belonging to the Chinaman, Ong Bieng Sip, together with other goods owned by the defendant Inchausti & Co., was taken aboard to be transported to Catarman; but on December 5, 1908, before the Pilar could leave for its destination, towed by the launch Texas, there arose a storm, which, coming from the Pacific, passed over Gubat and, as a result of the strong wind and heavy sea, the lorcha was driven upon the shore and wrecked, and its cargo, including the Chinese shipper’s 205 packages of goods, scattered on the beach. Laborers or workmen of the defendant company, by its order, then proceeded to gather up the plaintiff’s merchandise and, as it was impossible to preserve it after it was salved from the wreck of the lorcha, it was sold at public auction before a notary for the sum of P1,693.67.

The contract entered into between the Chinese shipper, Ong Bieng Sip, and the firm of Inchausti & Co., provided that transportation should be furnished from Manila to Catarman, although the merchandise taken aboard the steamer Sorsogon was to be transshipped at Gubat to another vessel which was to convey it from that port to Catarman; it was not stipulated in the said contract that the Sorsogon should convey the goods to their final destination, nor that the vessel into which they were to be transshipped, should be a steamer. The shipper, Ong Bieng Sip, therefore assented to these arrangements and made no protest when his 205 packages of merchandise were unloaded from the ship and, on account of the absence of the lorcha Pilar, stored in the warehouses at Gubat nor did he offer any objection to the lading of his merchandise on to this lorcha as soon as it arrived and was prepared to receive cargo; moreover, he knew that to reach the port of Catarman with promptness and dispatch, the lorcha had to be towed by some vessel like the launch Texas, which the defendant company had been steadily using for similar operations in those waters.

Hence the shipper, Ong Bieng Sip, made no protest or objection to the methods adopted by the agents of the defendant for the transportation of his goods to the port of their destination, and the record does not show that in Gubat the defendant possessed any other means for the conveyance and transportation of merchandise, at least for Catarman, than the lorcha Pilar, towed by the said launch and exposed during its passage to all sorts of accidents and perils from the nature and seafaring qualities of a lorcha, from the circumstances then present and the winds prevailing on the Pacific Ocean during the months of November and December.

It is to be noted that a lorcha is not easily managed or steered when traveling, for, out at sea, it can only be moved by wind and sails; and along the coast near the shore and in the estuaries where it customarily travels, it can only move by poling. For this reason, in order to arrive at the pueblo of Catarman with promptness and dispatch, the lorcha was usually towed by the launch Texas.

The record does not show that, from the afternoon of the 4th of December, 1908, until the morning of the following day, the 5th, the patron or master of the lorcha which was anchored in the cove of Gubat, received any notice from the captain of the steamer Ton Yek, also anchored near by, of the near approach of a storm. The said captain, Juan Domingo Alberdi, makes no reference in his sworn testimony of having given any such notice to the patron of the lorcha, nor did the latter, Mariano Gadvilao, testify that he received such notice from the captain of the Ton Yek or from the person in charge of the Government observatory. Gadvilao, the patron, testified that only between 10 and 11 o’clock of Saturday morning, the 5th of December, was he informed by Inchausti & Co.’s agent in Gubat that a baguio was approaching; that thereupon, on account of the condition of the sea, he dropped the four anchors that the lorcha had on board and immediately went ashore to get another anchor and a new cable in order more securely to hold the boat in view of the predicted storm. This testimony was corroborated by the said representative, Melchor Muñoz. So the lorcha, when the storm broke upon it, was held fast by five anchors and was, as testified by the defendant without contradiction or evidence to the contrary, well found and provided with all proper and necessary equipment and had a sufficient crew for its management and preservation.

The patron of the lorcha testified specifically that at Gubat or in its immediate vicinity there is no port whatever adequate for the shelter and refuge of vessels in cases of danger, and that, even though there were, on being advised between 10 and 11 o’clock of the morning of the 5th, of the approach of a storm from the eastern Pacific, it would have been impossible to spread any sails or weigh anchor on the lorcha without being dragged or driven against the reefs by the force of the wind. As the craft was not provided with steam or other motive power, it would not have been possible for it to change its anchorage, nor move from the place where it lay, even several hours before the notice was received by its patron. A lorcha can not be compared with a steamer which does not need the help or assistance of any other vessel in its movements.

Due importance must be given to the testimony of the weather observer, Antonio Rocha, that the notice received from the Manila Observatory on the afternoon of December 4, with regard to a storm traveling from the east of the Pelew Islands toward the northwest, was not made known to the people of Gubat and that he merely left a memorandum notice on the desk of the station, intending to give explanations thereof to any person who should request them of him. So the notice of the storm sent by the Manila Observatory was only known to the said observer, and he did not apprise the public of the approach of the storm until he received another notice from Manila at 20 minutes past 8 o’clock on Saturday morning, December 5. Then he made a public announcement and advised the authorities of the storm that was coming.

The patron of the lorcha Pilar is charged with gross negligence for not having endeavored to remove his craft to a safe place in the Sabang River, about half a mile from where it was anchored.

In order to find out whether there was or was not such negligence on the part of the patron, it becomes necessary to determine, first, whether the lorcha, on the morning of December 5, could be moved by its own power and without being towed by any steamboat, since it had no steam engine of its own; second, whether the lorcha, on account of its draft and the shallowness of the mouth of the said river, could have entered the latter before the storm broke.

The patron, Mariano Gadvilao, stated under oath that the weather during the night of December 4 was not threatening and he did not believe there would be a storm; that he knew the Sabang River; and that the lorcha Pilar, when loaded, could not enter as there was not sufficient water in its channel; that, according to an official chart of the port of Gubat, the bar of the Sabang River was covered by only a foot and a half of water at ordinary low tide and the lorcha Pilar, when loaded, drew 6 feet and a half; that aside from the fact that the condition of the sea would not have permitted the lorcha to take shelter in the said river, even could it have relied upon the assistance of a towboat, at half past 8 o’clock in the morning the tide was still low; there was but little water in the river and still less over the bar.

It was proven by the said official chart of the port of Gubat, that the depth of water over the bar or entrance of the Sabang River is only one foot and a half at ordinary low tide; that the rise and fall of the tide is about 4