G.R. No. 20145. November 15, 1923

This action was instituted in the Court of First Instance of the City of
Manila by Vicente Verzosa and Ruiz, Rementeria y Compañia, as owners of the
coastwise vessel Perla, against Silvino Lim and Siy Cong Bieng &
Company, Inc., as owner and agent, respectively, of the vessel Ban Yek,
for the purpose of recovering a sum of money alleged to be the damages resulting
to the plaintiffs from a collision which occurred on March 9, 1921, between the
two vessels mentioned, it being alleged that said collision was due to the
inexperience, carelessness and lack of skill on the part of the captain of the
Ban Yek and to his failure to observe the rules of navigation appropriate
to the case. The defendants answered with a general denial, and by way of
special defense asserted, among other things, that the collision was due
exclusively to the inexperience and carelessness of the captain and officers of
the steamship Perla; for which reason the defendants in turn, by way of
counterclaim, prayed judgment for the damages suffered by the Ban Yek
from the same collision. At the hearing the trial judge absolved the defendants
from the complaint and likewise absolved the plaintiffs from the defendants’
counterclaim. From this judgment both parties appealed.

It appears in evidence that at about five o’clock in the afternoon of March
9, 1921, the coastwise steamer Ban Yek left the port of Naga on the Bicol
River, in the Province of Camarines Sur, with destination to the City of Manila.
At the time of her departure from said port the sea was approaching to high tide
but the current was still running in through the Bicol River, with the result
that the Ban Yek had the current against her. As the ship approached the
Malbong bend of the Bicol River, in the municipality of Gainza, another vessel,
the Perla, was sighted coming up the river on the way to Naga. While the
boats were yet more than a kilometer apart, the Ban Yek gave two blasts
with her whistle, thus indicating an intention to pass on the left, or to her
own port side. In reply to this signal the Perla gave a single blast,
thereby indicating that she disagreed with the signal given by the Ban
Yek and would maintain her position on the right, that is, would keep to the
starboard. The Ban Yek made no reply to this signal. As the Perla
was navigating with the current, then running in from the sea, this vessel,
under paragraph 163 of Customs Marine Circular No. 53, had the right of way over
the Ban Yek, and the officers of the Perla interpreted the action
of the Ban Yek in not replying to the Perla’s signal as an
indication of acquiescence of the officers of the Ban Yek in the
determination of the Perla to keep to the starboard.

The river at this point is about two hundred and fifty feet wide, and the
courses thus being respectively pursued by the two vessels necessarily tended to
bring them into a head-on collision. When the danger of such an occurrence
became imminent, Captain Garrido of the Perla, seeing that he was shut
off by the Ban Yek from passing to the right, put his vessel to port,
intending to avoid collision or minimize its impact by getting farther out into
the stream. An additional reason for this maneuver, as stated by Captain
Garrido, is that the captain of the Ban Yek waived his hand to Garrido,
indicating that the latter should turn his vessel towards the middle of the
stream. At about the same time that the Perla was thus deflected from her
course the engine on the Ban Yek was reversed and three blasts were given
by this vessel to indicate that she was backing.

Now, it appears that when the engine is reversed, a vessel swings to the
right or left in accordance with the direction in which the blades of the
propeller are set; and as the Ban Yek began to back, her bow was thrown
out into the stream, a movement which was assisted by the current of the river.
By this means the Ban Yek was brought to occupy an oblique position
across the stream at the moment the Perla was passing; and the bow of the
Ban Yek crashed into the starboard bumpers of the Perla, carrying
away external parts of the ship and inflicting material damage on the hull. To
effect the repairs thus made necessary to the Perla cost her owners the
sum of P17,827, including expenses of survey.

The first legal point presented in the case has reference to the sufficiency
of the protest. In this connection it appears that within twenty-four hours
after the arrival of the Perla at the port of Naga, Captain Garrido
appeared before Vicente Rodi, the auxiliary justice of the peace of the
municipality of Naga, and made before that officer the sworn protest which is in
evidence as Exhibit B. This protest is sufficient in our opinion to answer all
the requirements of article 835 of the Code of Commerce. A regular justice of
the peace would without doubt be competent to take a marine protest, and the
same authority must be conceded to the auxiliary justice in the absence of any
showing in the record to the effect that the justice of the peace himself was
acting at the time in the municipality (Adm. Code, sec. 211; sec. 334, Code of
Civ. Proc., subsecs. 14, 15). We note that in his certificate to this protest
Vicente Rodi added to the appellation of auxiliary justice of the peace,
following his name, the additional designation “notary public ex-officio.”
However, under subsection (c) of section 242 of the Administrative Code,
it is plain that an auxiliary justice of the peace is not an ex-officio notary
public. It results that the taking of this protest must be ascribed to the
officer in his character as auxiliary justice of the peace and not in the
character of notary public ex-officio. It is hardly necessary to add that this
court takes judicial notice of the fact that Naga is not a port of entry and
that no customs official of rank is there stationed who could have taken
cognizance of this protest.

Upon the point of responsibility for the collision we have no hesitancy in
finding that the fault is to be attributed exclusively to the negligence and
inattention of the captain and pilot in charge of the Ban Yek. The
Perla undoubtedly had the right of way, since this vessel was navigating
with the current, and the officers in charge of the Perla were correct in
assuming, from the failure of the Ban Yek to respond to the single blast
of the Perla, that the officers in charge of the Ban Yek
recognized that the Perla had a right of way and acquiesced in her
resolution to keep to the right. The excuse urged for the Ban Yek is that
this vessel is somewhat larger than the Perla and that it was desirable
for the Ban Yek to keep on the side of the long arc of the curve of the
river; and in this connection it is suggested that the river is deeper on the
outer edge of the bend than on the inner edge. It is also stated that on a
certain previous occasion the Ban Yek on coming out from this port had
gotten stuck in the mud in this bend by keeping too far to the right. Moreover,
it is said to be the practice of ships in navigating this stream to keep nearer
the outside than to the inside of the bend. These suggestions are by no means
convincing. It appears in evidence that the river bottom here is composed of mud
and silt, and as the tide at the time of this incident was nearly at its flood,
there was ample depth of water to have accommodated the Ban Yek if she
had kept to that part of the stream which it was proper for her to occupy. We
may further observe that the disparity in the size of the vessels was not such
as to dominate the situation and deprive the Perla of the right of way
under the conditions stated. Blame for the collision must therefore, as already
stated, be attributed to the Ban Yek.

On the other hand no fault can be attributed to the officers navigating the
Perla either in maintaining the course which had been determined upon for
that vessel in conformity with the marine regulations applicable to the case or
in deflecting the vessel towards the middle of the stream after the danger of
collision became imminent. The trial judge suggests in his opinion that when
Captain Garrido saw that the Ban Yek was holding her course to the left,
he (Garrido) should have changed the course of the Perla to port more
promptly. The validity of this criticism cannot be admitted. Among rules
applicable to navigation none is better founded on reason and experience than
that which requires the navigating officers of any vessel to assume that an
approaching vessel will observe the regulations prescribed for navigation (G.
Urrutia & Co. vs. Baco River Plantation Co., 26 Phil., 632, 637). Any
other rule would introduce guess work into the control of ships and produce
uncertainty in the operation of the regulations.

Our conclusion is that his Honor, the trial judge, was in error in not
awarding damages to the Perla; but no error was committed in absolving
the plaintiffs from the defendants’ cross-complaint.

The sum of P17,827 in our opinion represents the limit of the plaintiffs’
right of recovery. In the original complaint recovery is sought for an
additional amount of P18,000, most of which consists of damages supposed to have
been incurred from the inability of the Perla to maintain her regular
schedule while laid up in the dock undergoing repairs. The damages thus claimed,
in addition to being somewhat of a speculative nature, are in our opinion not
sufficiently proved to warrant the court in allowing the same.

Having determined the amount which the plaintiffs are entitled to recover, it
becomes necessary to consider the person, or persons, who must respond for these
damages. Upon this point we note that Silvino Lim is impleaded as owner; and Siy
Cong Bieng & Co. is impleaded as the shipping agent (casa naviera),
or person in responsible control of the Ban Yek at the time of the
accident. We note further that in article 826 of the Code of Commerce it is
declared that the owner of any vessel shall be liable for the indemnity
due to any other vessel injured by the fault, negligence, or lack of skill of
the captain of the first. We say “owner,” which is the word used in the current
translation of this article in the Spanish Code of Commerce. It is to be
observed, however, that the Spanish text itself uses the word naviero;
and there is some ambiguity in the use of said word in this article, owing to
the fact that naviero in Spanish has several meanings. The author of the
article which appears under the word naviero in the Enciclopedia
Juridica Española tells us that in Spanish it may mean either owner,
outfitter, charterer, or agent, though he says that the fundamental and correct
meaning of the word is that of “owner.” That naviero, as used in the
Spanish text of article 826, means owner is further to be inferred from article
837, which limits the civil liability expressed in article 826 to the value of
the vessel with all her appurtenances and all the freight earned during the
voyage. There would have been no propriety in limiting liability to the value of
the vessel unless the owner were understood to be the person liable. It is
therefore clear that by special provision of the Code of Commerce the owner is
made responsible for the damage caused by an accident of the kind under
consideration in this case; and in more than one case this court has held the
owner liable, when sued alone (Philippine Shipping Co. vs. Garcia
Vergara, 6 Phil., 281; G. Urrutia & Co. vs. Baco River Plantation
Co., 26 Phil., 632).

But while it is thus demonstrated that Silvino Lim is liable for these
damages in the character of owner, it does not necessarily follow that Siy Cong
Bieng & Co., as charterer or agent (casa naviera), is exempt from
liability; and we are of the opinion that both the owner and agent can be held
responsible where both are impleaded together. In Philippine Shipping Co.
vs. Garcia Vergara (6 Phil., 281), it seems to have been accepted as a
matter of course that both owner and agent of the offending vessel are liable
for the damage done; and this must, we think, be true. The liability of the
naviero, in the sense of charterer or agent, if not expressed in article
826 of the Code of Commerce, is clearly deducible from the general doctrine of
jurisprudence stated in article 1902 of the Civil Code, and it is also
recognized, but more especially as regards contractual obligations, in article
586 of the Code of Commerce. Moreover, we are of the opinion that both the owner
and agent (naviero) should be declared to be jointly and severally
liable, since the obligation which is the subject of this action had its origin
in a tortious act and did not arise from contract. Article 1137 of the Civil
Code, declaring that joint obligations shall be apportionable unless otherwise
provided, has no application to obligations arising from tort.

For the reasons stated the judgment appealed from will be affirmed in so far
as it absolves the plaintiffs from the defendants’ cross-complaint but will be
reversed in so far as it absolves the defendants from the plaintiffs’ complaint;
and judgment will be entered for the plaintiffs to recover jointly and severally
from the defendants Silvino Lim and Siy Cong Bieng & Co. the sum of
seventeen thousand eight hundred and twenty-seven pesos (P17,827), with interest
from the date of the institution of the action, without special pronouncement as
to costs of either instance. So ordered.

Johnson, Malcolm, Avanceña,
Villamor, and Romualdez, JJ., concur.

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JOHNS, J.:

I concur in all of that portion of the majority opinion which holds that the
defendant Silvino Lim, as owner, is liable for the damages in question, and I
dissent from all of that portion of the opinion which holds that the defendant
Siy Cong Bieng & Company, Inc., as charterer, is liable.

Under the
pleadings here, the owner of the vessel only is liable.