RIZAL SURETY & INSURANCE CO., PLAINTIFF-APPELLANT, VS. MACONDRAY & CO., INC., DEFENDANT-APPELLEE.

Plaintiff, Rizal Surety & Insurance
Company seeks the reversal of a decision of the Court of First Instance of
Manila dismissing the complaint herein, with costs.

Plaintiff seeks to recover from defendant, Macondray
Co., Inc., as authorized agent, in Manila,
of Barber Steamship Line, Inc., which operates the vessel “SS Tai Ping,”
the sum of P2,020.00, representing the maximum value recoverable — under the
corresponding­ bill of lading — of some machinery parts shipped, on board said
vessel, at New York, and consigned to Edwardson
Manufacturing Corporation, in Manila, but not discharged by the vessel in
Manila, in view of which the plaintiff had to pay, pursuant to its contract of
insurance with the consignee, the value of said effects to the latter.

In its answer, the defendant set up the defense of pre­scription
which the lower court sustained.  Hence, the dismissal of the complaint, which has been appealed
directly to this Court.

Defendant’s plea is predicated upon Section 3, Title I, of the Carriage  of Goods by
Sea Act, the penultimate paragraph of subparagraph 6 of which reads:

“In any event the carrier and the ship shall be discharged
from all liability in respect to loss or damages unless suit is brought within
one year after delivery of the goods or the date when the goods should have
been delivered:  Provided, That if a notice
of loss or damage, either apparent or concealed, is not given as provided for
in this section, that fact shall not affect or prejudice the right of the
shipper to bring suit within one year after the delivery of the goods or the
date when the goods should have been delivered.”

The only question submitted for our determination is whe­ther the
period of prescription in the foregoing provision is con­trolling in the case
at bar, considering the conditions obtaining therein.

Plaintiff maintains the negative view, upon the theory that the
above-quoted provision cannot apply when the shipment in question has not been
discharged from the carrying vessel, as in the case at bar.  In such event, it claims, our general statute
of limi­tations of action should apply.

We find no merit in this contention.  The aforementioned provision contemplates not
only the case of damage, but also, that of loss.  It goes without saying that there could be no
possible charge of goods lost during the voyage and before reaching the
destination.  Then again, said provision,
likewise, anticipates two (2 other possibilities, viz.:  1) that delivery has been made, in which case
the action should be brought “within one year after delivery of the
goods;” or 2) that no delivery has taken place, in which event said
period should be computed from “the date when goods should have been
delivered.”  In the latter
contingency, the cause of such non-delivery — that is to say, whether the goods
have been discharged from the vessel or not — is immaterial. If the goods have
not been discharged from the vessel, the non-delivery is imputable to the
carrier.  So would it be, if the goods
had been unloaded from the vessel, but not delivered to the consignee.  Indeed, in such case of discharge of the goods
from the vessel, the carrier would still be liable for non-delivery of goods,
because the same would be due to its own omission, if undertook to make the
delivery by itself, or to the omission of its agent, if the carrier entrusted
the custody of the goods and/or its delivery to a third party.

Again, our statute of limitations of action cannot be applied to
the present case because the corresponding bill of lading which is the contract
and, hence, the law between the parties expressly stipulates that it is
“subject to the Provisions of the Carriage by Sea Act of the U. S. of
America, approved April 16, 1936 which shall be deemed to be incorporated”
therein.

The lower court held, and, correctly, that, inasmuch as “SS Tai
Ping” arrived at the Port of Manila on November 2, 1962 and left it on November
4, 1962, it was on the latter date that the carrier had the last opportunity to
deliver the goods; that the period of one year within which the carrier could
be sued commence to run, therefore, from November 5, 1962 and expired on
November 4, 1963; and that said period has expired before this action was
commenced on February 10, 1964.

WHEREFORE, the decision appealed from should as it is
hereby, affirmed, with costs against plaintiff-appellant.

IT IS SO ORDERED.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Ruiz Castro, Angeles, and Fernando, JJ., concur.