RIZAL SURETY AND INSURANCE CO., INC., PLAINTIFF-APPELLEE, VS. MANILA RAILROAD COMPANY AND MANILA PORT SERVICE, DEFENDANTS-APPELLANTS.

The Manila Port Service and the Manila Railroad Company appeal
from the decision of the Court of First Instance of Manila adjudging them
liable to the Rizal Surety and Insurance Co., Inc. in
the amount of P870.05.

The suit, which was originally filed with the Municipal Court
(now City Court) of Manila
is an action for the recovery of a sum of money filed by the Rizal Surety and Insurance Co., Inc., as subrogee of one Natividad Lim,
consignee of 250 cases of Hereford Brand Corned Beef.  As appearing from the stipulation of facts
submitted by the parties before the Court of First Instance, the vessel that
carried the said shipment, the S/S BOISSEVAIR, arrived at Manila
on January 9, 1961.  Upon said arrival, unloading of the shipment
started and on that very day, January
9, 1961, the consignee filed a “Provisional Claim”
advising the arrastre contractor, the Manila Port
Service, that the 250 cases of Hereford Brand Corned Beef had been shortlanded and/or landed in bad order.  It was, however, only on the following day, January 10, 1961, that the last
package of the said cargo was discharged from the carrying vessel and it was
found out that the shipment was short of 24 cases and 17 tins, valued at
P870.05.  As a result of such shortage,
the plaintiff, as insurer of the shipment against all risks, paid to the
consignee the sum representing its liability under their insurance
contract.  As subrogee
of the consignee, the plaintiff in its complaint demanded reimbursement for the
value of the short-delivered shipment. 
The defendants were held liable in the municipal court and, as
hereinbefore stated, they were also held liable in the Court of First Instance.

In this appeal, the first of the two assigned errors poses the
question as to whether or not the so-called provisional claim filed by the
plaintiff with the Manila Port Service one day before the date of discharge of
the last package from the carrying vessel constitute a substantial compliance
with section 15 of the arrastre contract, which
reads:

“x x x In
any event, the CONTRACTOR shall be relieved and released of any and all res­ponsibility
or liability for loss, damage, mis­delivery and/or nondelivery of goods, unless suit in the court of proper
jurisdiction is brought within a period of one (1) year from the date of the
discharge of the goods, or from the date when the claim for the value of the
goods have been rejected or denied by the CONTRACTOR, provided  that such claim shall have been filed with
the  CONTRACTOR within fifteen (15) days
from the date of discharge of the last package from the carrying vessel.  x x x” (Emphasis ours)

In the case of Shell
Co. of the Phil. Ltd. v. Compania General de Tabacos de Filipinas, G. R. No. L-20230, July 30, 1965, this Court, resolving
the same issue thru Mr. Justice Jose P. Bengzon,
ruled:

“Paragraph 15 of the management contract clearly and
specifically requires the claim to be filed ‘within fifteen (15) days from
date of discharge of the last package from the carrying vessel.’ Quite
obviously, therefore, such claim should be filed after discharge of the
goods from the vessel.  A claim filed before
such discharge is premature and speculative.”

This ruling was restated in Fireman’s
Fund Insurance Co. v. Manila
Port Service, et al.,
G. R. No. L-22454, April 29, 1966.  And again in New Hampshire Fire Insurance
Co. v. Manila Port Service, et al., G. R. No. L-20938, August 9, 1966, the same ruling was repeated, and
this Court, analyzing the circumstances of that particular case, said:

“The trouble with the whole situation appears to be that the
consignee or his agent-broker relies on what seems to be a stereo-type form of
claim presented immediately upon arrival of the vessel in port, without
apparently any effort being exerted to verify the condition of the shipment and
even before the cargo is unloaded.  As
paragraph 15 of the Management Contract provides, the claim is supposed to be
made after the discharge of the last package from the carrying vessel in order
to afford the consignee or his broker, opportunity to examine his
shipment.  Of course, if the consignee or
his broker discovers or is informed of a shortage or damage to the goods before
said discharge of the last package, or even during the unloading, then a
provisional claim may properly be presented without awaiting a final
determination of the extent of the loss or damage.  It is for this reason that we held in the case
of Switzerland General Insurance Company, Ltd. v. Java Pacific and Hoegh Lines, et al., (G. R. L-21760, April 30, 1966), that
a provisional claim filed one (1) day before the date of the last discharge of
the shipment was a substantial compliance with the requirement of Section 15 of
the Management Contract, because upon examination of the shipment even before
they were discharged from the vessel in the presence of the representatives of
both parties, certain shortages were already actually found.  In the case at bar, the parties admit in
their stipulation of facts that, contrary to the provisional claim, the goods
were landed complete and in good order and condition and that the loss occurred
while the goods were in the possession and custody of the defendant Manila Port
Service, after the discharge and after the filing of the provisional
claim.”

Note that in this case of Hampshire Fire Insurance Co.
this Court, thru Justice Barrera, went further by making a distinction between
two instances, to wit:  (1) where the
provisional claim is filed ahead of the date of the discharge of the last
package from the carrying vessel but the consignee has not yet examined or was
not yet informed of the condition of the shipment, the provisional claim is
held to be speculative and premature; and (2) where the claim is filed also
before the date of the discharge of the last package from the carrying vessel
and the consignee has in fact discovered or was informed of a shortage or
damage to the goods before the discharge of the last package, or even during
the unloading, then the provisional claim is deemed to have been properly presented.

Applying the same principle to the case at bar, it is important
to point out here that there is no showing from the evidence, particularly the
Stipulation of Facts, that the consignee or her agent had actual knowledge of
the missing cargo at the time she filed the provisional claim.  As a matter of fact, there appears to be an
admission by plaintiff in paragraph 6 of the Stipulation of Facts that the 250
cases of corned beef were all unloaded from the carrying vessel.  The very provisional claim filed on January 9, 1961, quoted hereunder,
supports the conclusion that the consignee was not sure of any shortage on that
day.

“We beg to advise you that the following shipments of 250
cases Hereford Brand Corned Beef 48/12 ozs. Ex:  Steamer have been SHORTLANDED in bad order
and provisional claim is hereby made for any loss or shortage that may after
examination be found to exist.” (Emphasis ours)

Having no definite information then of any shortage or damage of
the shipment consigned to her, the consignee filed its provisional claim merely
in speculation of any loss or damage to be later on discovered.  Within the contemplation of the previous
cases cited above, such a speculative claim can not be considered as a
substantial compliance with the requirement of Section 15 of the management
contract.  Neither may the formal claim
for the missing cargo, filed on March
3, 1961, be considered compliance with said requirement as that
date is clear­ly beyond the fifteen-day period.

Arriving at this conclusion, it is needless to pass upon the second
assigned error which concerns the amount that would be recovered.

WHEREFORE, the judgment of the lower court holding the
defendants liable to the plaintiff is hereby reversed.  Costs against the
plaintiff-appellee.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
and Castro, JJ., concur.