STATE BONDING & INSURANCE CO., INC., PLAINTIFF AND APPELLEE, VS. MANILA PORT SERVICE, ET AL., DEFENDANTS AND APPELLANTS.

Plaintiff, as successor-interest and subrogee of seven consignees,
filed a complaint before the Court of First Instance of Manila to
recover certain sums of money against defendants Manila Port Service
and Manila RailRoad Company. The claim involves various amounts
representing the value of portions of goods allegedly short-delivered
in seven shipments discharged on different dates unto the custody of
defendant Manila Port Service as arrastre operator at the Port of
Manila.

In answer to the complaint, defendants averred with respect to the
first, fourth, fifth and sixth causes of action that they had delivered
to the consignees the same number and condition of merchandise as
actually received by them from the carrying vessel. With regard to the
third cause of action, defendants specifically denied the imputation of
negligence made in paragraph 23 of the complaint alleging by way of
defense that they have always been ready and able to deliver to the
consignees the merchandise claimed to have been short-delivered but
thaT appellee’s predecessor-in-intcrcst, for no justifiable reason, had
unlawfully refused to take delivery of the merchandise from the piers.

At the trial, appellee presented an employee in its claims involved
in the case. After presenting this witness, the parties submitted a
stipulation of facts on the basis of which the trial court rendered its
decision. The defendants were ordered to pay the sums of money claimed
in the complaint, with legal interest thereon, with the exception of
those involved in the second, seventh and eighth causes of action, as
to which the complaint was dismissed. Defendants were also sentenced to
pay 10% of the sums adjudicated as attorney’s fees, plus the costs of
action.

This is a direct appeal from said decision. Appellants
maintain that appellee failed to present any proof to establish (1) the
arrival of the shipments in question; (2) the date of their discharge
from the vessel to the arrastre operator; and (3) the number and
condition of the merchandise as actually unloaded unto the custody of
said operator. And since appellee has the burden of proof to establish
the above facts which are necessary to justify its causes of action,
the court a quo erred in adjudicating damages to appellee as prayed for
in its complaint.

It, however, appears that these facts do not
need any proof since they were admitted in the very answer of
appellants. Indeed, in their answer, appellants expressly alleged that
they had delivered to the consignees of the different shipments in
question the same quantity and condition of the cargo as they received
from the carrying vessel, which is a clear ami positive admission that
the shipments had arrived jind wen- unloaded unto the custody of
appellant Manila Port Service. It would seem, therefore, that it is
unnecessary to prove either the dates of their arrival of their
discharge when it is admitted that they had actually arrived and were
in fact delivered to the Manila Port Service.

With reference
to the quantity ami quality of the goods discharged, while no actual
evidence was submitted on the matter, the same would appear to be
unnecessary as it may have inferred from the management contract
attached to the stipulation entered into between the parties. In this
connection, it should be noted that said contract prescribes a definite
procedure to be followed in connection with the short-landing of cargo
or whenever the same appears to be damaged. Thus, it is stated therein
that it is the express duty of the Manila Port Service to “make it
complete and detailed checking by marks and numbers of all cargo
handled in the Port of Manila, whether unto or over wharfs or piers, or
delivered at ship-side.” In such contract it is also made the duty of
said operator, in the event that it should receive any short-landed or
damaged cargo, “to furnish the consignee or consignees with a
memorandum or certificate showing shortage or damage, if any, to the
consignment or cargo as disclosed by the check of the cargo.” It is to
be presumed that such procedure has been followed in connection with
the shipments in question thereby making the duty of the arrastre
operator to furnish proof thereof to show that there was no such
short-landing as now claimed. The non-presentation of such proof or
memorandum would necessarily imply that it contains a matter that may
work prejudice to said operator, contrary to what it has done in
connection with the shipments covered by the first and second causes of
action as to which the Manila Port Service issued and presented the
requisite memorandum ol” shortage known as a short-landing certificate.
The presentation of such requisite memorandum is necessary to show the
true condition in which a particular shipmeni is discharged from the
pier to the custody of the airrastre operator.

Moreover, in
the same management contract it is made the duty of the arrastre
operator to segregate all cargo landed in bad order immediately upon
its discharge from the vessel in order that a survey thereof may be
made within 72 hours alter discharge by the representatives of the
vessel and the arrastre operator. This was not also done, or at least
there is no evidence to show that it was done. Appellant operator
cannot therefore dispute that the shipments in question, with the
exception of those covered by the first and second causes of action,
were unloaded unto it in good condition as stated on the face of the
respective bills of lading.

The contention that appellee
failed to present as evidence the tally receipts covering the shipments
in question is untenable. These receipts which are documents prepared
and signed by the checker of the carrying vessel and the checker of the
arrastre operator indicating the condition, as well as the numbers,
marks and countermarks of the merchandise as actually unloaded at the
Port of Manila, are not furnished to the consignees. They are kept by
both the vessel and the arrastre operator. If such evidence is material
to bolster up the case of appellants their duty was to present it.
Their failure to do so can only be considered as a circumstance
prejudicial to them and not to appellee.

If it is true that
the missing goods were available and existing as appelants contend and
that they were able and ready to deliver them to the consignees, no
reason is seen why the latter should not accept them to avoid
litigation. The fact is thai the consignees were never informed of
their existence as otherwise they would not have filed the claims for
shortage in connection with said goods. There ia also no proof that
appellants ever submitted to
the Bureau of Customs a list of unclaimed or undelivered cargo, if any,
as required in the management contract.

We find no merit in appellants’ argument with regard to the attorney’s fees awarded by the court a quo.

Wherefore, the decision appealed from is affirmed. No costs.

Bengzon, C. J., Padilla, Concepcion, Reyes, J. B. L., Paredes, Regala and Makalintal, JJ., concur.