G.R. No. 1638. December 02, 1905

On the 3d day of July, 1893, the steamer Don Juan, while en route
to Manila from the ports of Hongkong and Amoy, China, and still on the
high seas at a distance of some 30 miles from the coast of the Island
of Luzon, took fire. The fire reached such proportions that the vessel
with all her cargo had to be abandoned by the captain, officers, and
crew, together with such passengers as the small boats of the steamer
could carry. A large number of the passengers remained on board,
apparently for the lack of a sufficient number of small boats to save
them.

On the 4th of July Antonio Iribar, the plaintiff in this case and at that time captain of the steamer San Antonio, then at anchor in the port of San Fernando de la Union, on learning of the accident, repaired with his ship to the aid of the Don Juan,
which on the following morning he found abandoned in the manner
aforesaid, still burning, a large part of it being already destroyed.
In this condition he towed the vessel into Manila Bay arriving July 7
after two days’ navigation, having saved also 101 passengers of the Don Juan who, had it not been for the timely assistance of the San Antonio, would probably have perished.

The cargo of the Don Juan consisted in part of Mexican
silver coins then considered contraband, their importation into the
Philippines being at that time prohibited. For this reason the duly
authorized agents of the Government seized the silver in question and
deposited it with the Pub- lic Treasurer pending the result of the
administrative proceedings instituted for the purpose of
investigating and reporting on the matter of the contraband. The silver
thus seized, considerably defaced and melted as a result of the fire,
is now in the hands of the Insular Treasurer pending its delivery to
the parties entitled thereto in ac- cordance with the decision to be
rendered in this case.

The action is brought against the silver exclusively and the libelants seek to recover:

First, the expenses incurred by reason of the salvage, and second, the salvage charges under the code.

(a) Expenses.—The libelants
presented a claim for 4,454.50 pesos, including cost of coal consumed,
wages and subsistence of the crew, loss of voyage to and from Ilocos
and Cagayan, where the San Antonio was scheduled to go at the time of
effecting the salvage of the Don Juan, pilot-age in and out, and
transportation for the 101 passengers at the rate of 5 pesos each.

Such are the items which the libelants seek to recover. It will be
noticed that the expenses incurred by them, with the exception of the
cost of transportation of the 101 passengers, supposing the same to be
true and duly established, were so incurred for the common benefit of
the steamer Don Juan and her entire cargo and not exclusively
for the benefit of the silver concerned in this case. It was proven
that the vessel was not totally destroyed by the conflagration, it
having been towed into Manila Bay by the San Antonio. Though more or less damaged by reason of the fire, the fact is that the hull of the Don Juan
as well as her machinery were saved, all of which represented an actual
value of the greater or lesser consideration which should contribute
proportionately toward defraying the salvage expenses. On the other
hand, it does not appear that any other part of the cargo besides the
silver in question was saved from the steamer Don Juan. If
there was any such cargo saved, it should be charged with its share of
the salvage expenses. These expenses having been incurred in the saving
not only of the silver but also of the vessel and her cargo, they
should be considered general or gross average under article 811 of the
Code of Commerce, and as such should be proven and adjusted in
accordance with the provisions of Sections I and II of Title V, Book
III, of the same code. It was neither alleged nor shown that such
adjustment was made. In the absence of such adjustment there is nothing
upon which to determine the proportion in which the silver should
contribute toward defraying the expenses. The claim of the libelants
that they have a right to recover the total amount of the expenses out
of the silver in question is manifestly unjust and can not be
sustained, it being immaterial whether the steamer Don own is now
totally lost, as alleged in the complaint. The averages in the case at
bar should be adjusted with reference to the condition of the vessel
twelve years ago, to wit, in July, 1893, when the salvage was effected,
and not with reference to the present condition. This would be the only
proper procedure under the law.

With respect to the transportation of the 101 passengers rescued by the San Antonio, we see no reason why it should be paid for by the libelees, who, as mere shippers on the Don Juan,
had nothing to do with the transportation of such passengers. This
would have been a proper charge against the agents of the ship, who
were the only ones liable therefor.

We therefore hold that the libelants can not recover the amount
claimed by them for expenses incurred in the salvage of the vessel upon
the grounds set forth in the complaint. The judgment appealed from
should accordingly be reversed in so far as it orders the libelees to
reimburse the libelants for such expenses.

(b) Salvage rights.—The court
below declares in its judgment that the libelants had a right to
recover as salvage one-third of the silver saved from the steamer Don Juan,
now in the hands of the Insular Treasurer. This part of the judgment is
in conformity with the law, and should therefore be sustained.

There is no dispute over the fact of the salvage of the steamer Don Juan by the steamer San Antonio.
The libelees and appellants admit it on page 21 of their brief. They
deny, however, the libelants’ rights to recover the amount claimed for
salvage, alleging that this was effected for the unlawful purpose of
cooperating in the illegal importation into these Islands of the
Mexican silver in question. The libelees claim that Antonio Iribar, one
of the libelants, left Manila July 3 with the steamer San Antonio to meet the Don Juan on the high sea, and transfer into the former, by means of the steam launch Santa Maria, the silver that the Don Juan carried, and thence convey it to Aparri; but that he was unable to do so on account of the fire on the Don Juan, and was compelled to bring the Don Juan in tow to Manila.

The evidence shows, in effect, that Iribar agreed with one of the
libelees to effect the transfer of the silver. The salvage was,
however, something independent of such agreement, and can not,
therefore, be affected by any defects which might have vitiated the
latter. The burning of the Don Juan, which gave rise to the
salvage, was an accident unforeseen by the owners of the silver,
regarding which they made no agreement whatever with Iribar. The
salvage was not effected as a part of the contract between them which
only referred to the transfer of the silver, but was something outside
of the terms and the natural scope of the contract. It may even be said
that the salvage was contrary to what had been expressly agreed upon.
The silver, as a result of the salvage, was conveyed to Manila instead
of to Aparri, as stipulated between the parties. Iribar thus rendered
possible the discovery of the contraband which would otherwise have
been avoided.

It is said, also, that Iribar concealed a large part of the silver
loaded on the Don Juan, thus committing actual theft. This matter was
disposed of in the criminal case instituted in connection with this
charge, and to which reference is made in the appellants’ brief. It
having been decided that there was no such theft, the principal of res adjudicata does not permit that the same question be again brought into discussion, not even as a mere allegation or by way of argument.

Another defense the libelees set up is that of prescription under
paragraph 3 of article 952 of the Code of Commerce, which fixes one
year as the time within which all actions for salvage must be brought.
The salvage in question occurred in July, 1893, and the libelants did
not file their complaint until nearly ten years thereafter, to wit,
January, 1903.

According to the provisions of the article cited, the term of one
year for the prescription of all such actions should be counted from
the time the services were rendered or from the ending of the
administrative proceedings if any should have been instituted in the
case.

From the documentary evidence introduced by the parties, it clearly
appears that proceedings were instituted in the matter of the salvage
of the steamer Don Juan, Exhibit 3, dated August 9, 1893, and which appears on page 28 of the bill of exceptions, bears the following heading: “Statement
of expenses which the undersigned consignee of the steamer San Antonio
submits to the fiscal in the proceedings relative to the salvage of the
steamer Don Juan.” In Exhibits 14, 15, and 23 (bill of exceptions,
pp. 142, 143, 144, 164, and 165) express mention is also made of the
proceedings instituted’in the matter of the salvage; and finally,
Exhibit 1 (bill of exceptions, p. 26) contains a notice to Antonio de
Juban “to appear in the matter of the administrative proceedings,” quoting it literally, “that are being conducted by the maritime authorities concerning the wreck of the Spanish steamer Don Juan for the purpose of ascertaining the amount of the salvage expenses by him incurred in the wreck of the steamer Don Juan.”
This notice to appear, which seems to have been signed by the judge who
conducted the investigation, is dated June 17, 1898, and was published
in the Official Gazette of Manila on the 19th of the same month and
year. This shows that the proceedings commenced in 1893 had not yet
been terminated in June, 1898. There is nothing in the record to show
whether the said proceedings were ever terminated; and if so, when. It
was incumbent upon the libelees to show this, but they have furnished
no proof upon this point. In the absence of such proof, there is no
ground upon which to base a finding that the libelants are barred from
bringing this action, since the prescriptive period should be counted
from the termination of the aforesaid proceedings. For these reasons,
and not for those set out in the judgment appealed from, which must be
considered modified accordingly, we hold that the defense of
prescription set up by the libelees can not be sustained. The libelees
also set up the defense of payment. In paragraph 2, No.4, of their
answer they say literally that “each and all of the charges and
expenses claimed from the libelees for the salvage of the Mexican
silver belonging to them were ordered by the said libelees to be paid,
and were paid, long before this action was commenced.” The
libelants denied that such payment was ever made, and the litelees
introduced no evidence tending to prove their contention, which
accordingly can not be sustained.

The libelees set up a counterclaim for the sum of 50,000 pesos found missing from the silver loaded on the steamer Don Juan.
They alleged that the vessel carried 120,000 pesos, and that upon the
seizure of the contraband by the authorities, the latter found only
70,000 pesos, the balance having been abstracted and concealed by the
libelant Iribar, without the libelees having been able to recover it
thereafter.

The libelees, in their counterclaim, practically charge Iribar with
the theft of the missing silver. In regard to this matter it has
already been said that there is a final judgment which acquitted Iribar
of such a charge. If it be contended, as the libelees appear to
contend, that although the alleged concealment of the silver by Iribar
can not be deemed a theft on account of the judgment of acquittal
referred to, it can, nevertheless, be regarded as an act of assistance
or cooperation in the unlawful importation of the silver into these
Islands, then the said act would constitute the crime of importing
contraband articles into the Philippines, since the introduction of
Mexican silver into these Islands was considered as such. The crime, if
any, being common to both parties, they would have no action against
each other under article 1305 of the Civil Code. However this
counterclaim may be considered, it can not be sustained, even though it
were true that Iribar had actually concealed that part of the silver
missing from the cargo of the Don Juan.

It has been urged by the appellants that this doctrine should not be
applied to them, they being mere libelees and not libelants, alleging
further that they simply ask this court to preserve and maintain the
same condition of affairs existing prior to the commencement of this
suit. It is true, nevertheless, that they do not limit themselves in
their answer to asking that the case be dismissed, but allege therein
new facts which do not appear in the complaint, and pray judgment for
50,000 pesos against the libelants as a counterclaim. This last prayer
can not be said to constitute a mere defense. It is a real and actual
prayer for affirmative relief, which, in conformity with the section
cited, and for the reasons above set forth, is denied them.

Again, there is not sufficient evidence of the alleged concealment by Iribar of the missing silver from the steamer Don Juan.
It is a fact that the greater part of the silver transferred to the San
Antonio and the launch Santa Maria was seized by the authorities and
forms a part of that now deposited with the Insular Treasurer, as
appears from Exhibit 8, page 111, of the bill of exceptions. It seems
that the only portion of the silver transferred to the steamer and
launch which has not been recovered is the five or six thousand pesos
referred to on page 137 of the printed record (Exhibit 12) as having
been taken from the steamer Ban Antonio and buried in the beach at
Salomague. This is a mere hearsay statement, which, not being
corroborated by the evidence, m not entitled to any weight.
Furthermore, it is not stated in the document that it was Iribar who
landed and concealed the silver at Salomague. Iribar, in a document
dated May 11, 1894, and marked “Libelees Exhibit 10” (bill of exceptions, p. 117), said that when the money disappeared he was no longer in command of the steamer San Antonio,
thus intimating that one of Marty’s clerks had taken the money. This
statement was not contradicted during the trial, but, as has just been
said, was corroborated by a document introduced in evidence by the
libelees themselves.

The difference between the amount of silver loaded on the Don Juan
and that seized by the authorities who conducted the proceedings in
question may be explained by Iribar’s own statement, contained in
Exhibit 10, to the effect that, “according to the statement made by the
chief steward of the Don Juan to the engineers and first officer of the San Antonio, several boxes containing money were lowered from the Don Juan
into some of the small boats of the latter vessel, while others went to
the bottom of the sea owing to the burning of their fastenings.”
Whatever weight such statements may in themselves have as evidence, the
fact is that they appear in a document which the libelees accepted as
good, and was by them introduced, in support of their own allegations
and without any reservation.

For the foregoing reasons, the judgment appealed from is affirmed in
so far as it declares that the libelants have a right to recover as
salvage one-third of the silver in question in whatever condition it
may be, and reversed in so far as it decrees that the libelees shall
pay the expenses of the salvage amounting to 4,454.50 pesos claimed in
the complaint. The counterclaim set up by the libelees is hereby
disallowed. Each party shall pay its own costs in this court. After the
expiration of twenty days let judgment be entered in accordance
herewith, and let the case be remanded to the trial court for action in
conformity with this decision. So ordered.

Arellano, C. J., Torres, Johnson, and Carson, JJ., concur.