1. SHIPPING; LIABILITY OF MASTER OF LORCHA FOR DAMAGE TO CARGO. — When, through the unskilfulness or carelessness of the master of a lorcha engaged in the transportation of merchandise by river or navigable canal from one point to another of the Philippine Islands, damage ensues to the cargo, the mashr of such boat or vessel shall be held civilly liable to the owner of the latter for said damage, and, likewise and in turn, the owner to the third persons who contracted with him;

2. ID.; ID.; INVALIDITY OF AGREEMENT TO THE CONTRARY. — No covenant or agreement to the contrary can be valid, with respect to the liability of the captain or the master for damage caused to the cargo through their own faults.

On the afternoon of February 15, 1913, the lorcha Tafalla, the property of the defendants Lizarraga Hermanos, of Iloilo, while laden with sugar belonging to the plaintiff, Felix Robles, of Occidental Negros, enroute to Iloilo, was passing through one of the channels of the mouth of the river of the town of Pontevedra. On coming abreast of another lorcha named the Fortuna, belonging to the defendant Manuela Gay — which was stranded in that place and maneuvering with its anchor to extricate itself from its position — the Tafalla ran afoul of one of the flukes of the said anchor. The collision stove a hole in the bottom of the Tafalla through which the water entered and damaged the cargo of sugar to the extent of P3,935.27.

The plaintiff, the owner of the sugar damaged by the accident, alleged as a cause of action that the collision between the Tafalla and the anchor attached to the cable of the Fortuna was due to the carelessness and negligence of the masters and crews of said two lorchas — a fact which was duly reported to the Collector of Customs of the port of Iloilo. Plaintiff therefore prayed the court to order the defendants, Lizarraga Hermanos and Manuela Gay, to pay him P4,000, the amount of said damage, and the costs.

The defendant Manuela Gay denied the allegations contained in the complaint, with the exception of those admitted by her in her special defense in which she acknowledged that, in effect, the Fortuna was maneuvering with its anchor — which, fastened to a cable, had been dropped in the channel — at the time when the Tafalla attempted to pass by that same place in the mouth of the river; that the latter vessel first took soundings in order to ascertain the depth of the water and the exact location of the anchor; that part of the channel was not obstructed by the Fortuna and its anchor and, in view of the height of the tide at that time, was not absolutely necessary as a passage way to the sea; that the patron and crew of the Fortuna had complied with their duties within the most elemental rules of navigation; that there had been no negligence, carelessness, or abandonment on their part, but that, on the contrary, the damage to the Tafalla was caused by the inexcusable negligence, carelessness, and abandonment of its own patron, notwithstanding the efforts of the Fortuna to prevent the disaster. Defendant therefore prayed the court to absolve her from the complaint, with the costs against the plaintiff.

The other defendants, Lizarraga Hermanos, in their answer, after denying the facts set forth in the complaint and in the other defendant’s answer, alleged in special defense that said channel was the only one to the Pontevedra River, Iloilo, of sufficient water and depth to enable vessels to get through; that the patron of the Fortuna imprudently dropped his anchor in the middle of said channel while stranded and did not take account of the imminent danger and risk to other lorchas and vessels that were obliged to pass through said channel on that route; that the channel was absolutely necessary for the Tafalla; that the patron of the Fortuna placed no buoy, boat, or other signal whatever to warn other vessels; that his anchor lay in the middle of the channel; that, being unaware of the location of the anchor, the patron of the lorcha Tafalla passed through said channel and ran afoul of said anchor, which stove in the bottom of his vessel and thereby caused damage to the cargo of sugar it carried; and that this damage was due solely and exclusively to the imprudence and negligence of the patron of the Fortuna. In another special defense these same defendants set up a written agreement between the plaintiff and themselves, Lizarraga Hermanos, made for a lawful consideration, wherein it was stipulated that Lizarraga Hermanos should not be liable for any risks or accidents to the plaintiff’s sugar while being transported to Iloilo in these defendants’ vessels, and that said agreement was applicable to the case at bar. In conclusion they prayed the court to absolve them from the complaint, to exempt them from all liability for the damage to plaintiff’s sugar, to hold that the patron of the Fortuna was alone liable for the accident, and, accordingly, to make the proper finding with regard to the costs of the case, and to reserve to the owners of the Tafalla the right to bring the proper action for damages against the patron of the Fortuna because of his fault and negligence.

At the trial the parties introduced evidence to prove the facts alleged in their respective pleadings and the court rendered judgment in which he held that, as the defendants Lizarraga Hermanos were common carriers under the law, the agreement made between them and the plaintiff Robles, and mentioned by the former in their answer, could not exempt these defendants from payment of the damage claimed in the complaint if such damage was caused by their negligence; and that from the evidence presented it appeared clear to him that plaintiff was entitled to recover the damage aforementioned from the defendants, the owners of the lorcha that carried the sugar. He therefore ordered the defendants Lizarraga Hermanos to pay to plaintiff said sum of P3,935.27, together with legal interest thereon at six per cent per annum until pa d, and the costs; and dismissed the case against the defendant Manuela Gay, without finding as to costs.

From this judgment the defendants Lizarraga Hermanos appealed with the right to have a review of the evidence, and submitted to this court the proper bill of exceptions in which the plaintiff Felix Robles, on his own part, also joined.

The question presented for decision in this appeal is whether the patron of the lorcha Tafalla, while in the channel of the mouth of the Pontevedra River, bound for Iloilo, and abreast of the lorcha Fortuna, and knowing that the latter was stranded and maneuvering with its anchor to extricate itself from its situation, was imprudent and acted carelessly and negligently in continuing his way through the channel, or whether the patron of the Fortuna was imprudent and acted carelessly and negligently in dropping his anchor in the place where it lay in the channel, inasmuch as the Tafalla had to pass there.

In the judgment appealed from, the lower court discusses the testimony given by the witness at the trial and in connection therewith says:jgc:chanrobles.com.ph

"The evidence in this case shows that the Fortuna, loaded with sugar in going out of the river at Pontevedra, ran ashore on one side of the channel. This was shown to have been known by both the lorcha Tafalla and the lorcha Bilbao. Both of them had gone up the river during the morning, passed by the Fortuna, knew she was stranded, and they started out in the afternoon after they had been loaded. The Bilbao went out first, the Tafalla followed, there being so far as I can judge a very short time between the two, probably no more than half an hour. The Bilbao, somewhat a larger boat than the Tafalla, passed by the Fortuna safely. The Tafalla on going down the river ran afoul of the anchor of the Fortuna and stove a hole in the bottom.



The question of course arises as to which of these two boats was responsible for the accident. Of course, the Fortuna’s anchor which she had out in the river was primarily the cause of the wreck. The claim of the Tudela’s master that the anchor should have been across the stream on the opposite shallow bank does not seem to hold good in his case, because the customs circular says that nothing should be put out that would tend to obstruct the channel, but that one side of the river must be left free at all times.

"The question is raised whether signals were placed out by the stranded vessel and there seem to be a great variety of opinions about it and I am unable to say what is the custom about that in these little streams. This accident however was in broad daylight, the crew of the Tafalla knew that the Fortuna was stranded; they knew that she was trying to pull off by her anchor chain with her anchor planted in the stream; the evidence shows all this unmistakably. Then the question arises. Did the Tafalla take due precautions in trying to avoid the anchor? The helmsman, who, after the death of the master of the Tafalla was the principal witness for Lizarraga Brothers, testified that they were drawing on the Tafalla 5