G.R. No. L-17027. March 03, 1967
YU KIMTENG CONSTRUCTION CORPORATION, PLAINTIFF-APPELLANT, VS. MANILA RAILROAD COMPANY AND MANILA PORT SERVICE, DEFENDANTS-APPELLEES.
MAKALINTAL, J.:
The Manila Railroad Company and the Manila Port Service have
moved to reconsider our decision dated November
29, 1965, ordering them to pay plaintiff-appellant Yu Kimteng Construction Corporation the sum of P7,935.00 as compensatory damages and P1,000.00 as attorney’s
fees and litigation expenses, including costs.
The following grounds are alleged in support of the motion: (1) that the Court departed from its previous
rulings upholding the validity of paragraph 15 of the management contract, to
the effect that a claim for the value of the goods damaged, undelivered or misdelivered must be filed within 15 days from the date of
discharge of the last package from the carrying vessel, as a condition
precedent before the arrastre contractor may be
sued; (2) that movants‘ liability, if any, under the
management contract is limited to P500 for each package unless the value is
otherwise specified or manifested; (3) that the conclusion that appellent learned of the missing bars at the time when the three lifts were
delivered, is erroneous; and (4) that attorney’s fees should not have been
imposed.
The following facts are not disputed: The carrying vessel arrived in Manila
on May 28, 1957. The next day, May 29, the Bureau of Customs
delivered to appellant the three delivery permits covering the shipment of
eight lifts of reinforced steel bars. On
May 31
the shipment was completely discharged from the ship into the custody of appellees. On June
16 appellant was billed by appellee Manila Port
Service for arrastre charges on the entire shipment,
in the sum of P348.48. On June 20 the
Manila Port Service issued a gate pass to appellant. On the same day it delivered to appellant’s
customs broker three lifts only, hence the latter filed provisional claims on
that day for the five missing lifts.
Appellees‘ principal defense is that
appellant should have filed its claim within 15 days from the date of the
complete discharge of the goods from the carrying vessel, as provided in paragraph 15
of the management contract. They cite
the cases of Tomas Grocery vs. Delgado Brothers, G.R. No. L-11154,
April 29,
1959; Commercial Union Assurance Co. vs. Manila Port Service, G.R. Nos. L-14948 & L-14972, Oct. 31, 1961; GSIS v. Manila Port Service, G.R. No. L-13276, Feb. 25, 1961; and Shell Co. of the Phil. vs. Cia. Gral. de
Tabacos, G.R. No. L-20230, July 30,
1965.
The principal ruling in Shell Co. of the Phil. vs. Cia. Gral. de
Tabacos is not applicable here. That ruling is to the effect that a
provisional claim filed before the goods are discharged from the carrying
vessel, being premature and speculative, is not compliance with the requirement
that such claim must be filed within 15 days from the date of discharge of the
last package.
In Commercial Union Assurance Co., LTD. vs. Manila Port Service,
supra, the facts are as follows: The
shipment was completely discharged on May 9,
1956; the arrastre operator delivered the
same on May 25, 1956; and the consignee filed a provisional
claim for loss on the same day. On
appeal, this Court reversed the lower court’s decision and dismissed the
complaint on the ground that the claim
was one day late.
In GSIS v. MRR the consignment was discharged into the possession
of Manila Port Service on May 22, 1956. On June
12, 1956, the Manila Port Service delivered the same to the consignee, and on the same day
the latter filed a formal claim for short delivery. The Manila Port Service invoked paragraph 15
of the management contract. The lower
court dismissed the complaint, and the consignee appealed. (L-13276, Feb. 25, 1961) This Court through Mr. Justice Concepcion, now Chief Justice, remanded the case so that
the evidence could be taken "with a view to ascertaining whether or not
the consignee had had reasonable opportunity to comply with the disputed
condition of the management contract and, in the negative case, whether or
not, considering the date when it was notified of the arrival of the goods, the
consignee should be deemed to have acted with the diligence required by the
spirit and purpose of said disputed condition, in filing its claim on June 16,
1956."
After the requisite proceedings, the lower court rendered a
decision on August 20, 1962, stating:
(1) that no evidence was presented to show that the consignee knew or
was notified of the arrival of the goods earlier than June 2, 1956; (2) that
the Customs examiner inspected and found the entire shipment intact on June 11,
1956; (3) that the loss occurred only
after the Customs inspection on June 11, 1956 and before delivery to the
consignee’s broker on June 12, 1956; (4) that it was impossible for the
consignee to file its claim within 15 days from the discharge of the shipment
by the vessel, since the loss took place only on the 20th or 21st day after
said discharge; (5) that the condition being impossible, it was deemed not
imposed. Accordingly, the Court ordered
the Manila Railroad Company and the Manila Port Service to pay the insurer of
the consignee. Upon appeal by the
defendants (L-20342, Nov. 29, 1965) this Court, through Justice J. P. Bengzon, said:
"Appellants invoke Section 15 of the Management contract
providing for release of the arrastre operator from
liability unless a claim for the value of the goods lost is filed with it within
fifteen days from the date of discharge of the last package from the carrying
vessel. As ruled by this Court, however,
such condition does not strictly apply in all cases. It was not so applied in Republic vs. Manila
Port Service, G.R. No. L-19115, March 31, 1964, because in said case the
consignee was able to take hold of the shipment only after two months and a half from the arrival of the vessel and the
subsequent discharge of the goods therefrom.
"In Chiok Ho vs. Compañia Maritima, G.R. No.
L-20553, April 30, 1965, we
held that what is important is the date when the shipment was actually delivered
to the consignee in order that he may be given the chance to discover if there
is something missing or lost in the shipment.
"As early as Consunji
vs. Manila Port-Service, G.R. No. L-15551, November 29, 1960, this Court
stated that it would be unfair and iniquitous to apply the 15-day proviso where
the consignee comes to know the damage or loss only after the lapse of such
15-day period, for instance, where delivery by the contractor takes place 16
days after the discharge of the last package from the vessel.
"The rule to follow in such cases is that stated in Yu Kimteng Construction vs. Manila Railroad Co., G.R. No. L-17027, Nov.
29, 1965, namely to count the 15-day period not from the discharge
of the last package from the carrying vessel, but from the date the consignee
learned or could have learned, of the loss, damage or misdelivery.
"In the case at bar, as stated, the shipment was delivered to
the consignee’s broker only on June 12, 1956, after 21 days following its
discharge from the carrying vessel; the loss occurred only after the Customs
examination on June 11, 1956 but prior to the delivery to the consignee’s
broker. It is clear that the consignee
learned of the loss only on June 12,
1956, when the Manila Port Service effected a
delivery that was short by eleven pieces. A provisional claim was filed on June 16, 1956, well within 15 days
from such knowledge of the loss. Such
claim, therefore, was made on time and is not barred by the provision of
Section 15 of the management contract."
In the case under reconsideration, the appellant promptly
expressed its desire to take delivery of the shipment. It presented to the Manila Port Service the
three permits to deliver on June 3,
1957. On June 16, 1957, the Manila Port
Service billed the consignee’s broker for the full shipment of eight
lifts. One of the bills, No. 54142, is
dated June 2, 1957, while
the other two, Nos. 54143 and 54144, are dated June 16, 1957. But
from appellant’s uncontroverted statement, it
appears that all three bills were presented for payment to appellant on the
same day, June 16, 1957. From this fact, it is obvious that as of that
date the shipment was still intact.
Otherwise the Manila Port Service would not have billed the consignee
for the arrastre charges thereon.
Since the loss must have occurred after the lapse of fifteen days
from date of discharge from the carrying vessel, the consignee could not have
filed a claim during that period. It
could file a claim only after the loss occurred, and this it did within
fifteen days thereafter. Appellant did
all it could and was expected to do under the terms of the management contract.
The next question refers to the amount of damages that should be
paid to appellant. Appellees
invoke the provision of paragraph 15 of the management contract that "the
Contractor shall be solely responsible as an independent contractor for, and
promptly pay to the steamship company, consignee, consignor, or other
interested party or parties the invoice value of each package but which in no
case shall be more than five hundred pesos (P500.00) for each package unless the value is otherwise
specified or manifested and the corresponding arrastre
charges had been paid."
There is indeed no showing that appellant had declared the value
of the five missing lifts. It appears
from the bills sent by appellees (Nos. 54142 to
54144) that appellant paid the arrastre fees on the
basis of the weight of the merchandise, that is, at P5.00 per ton of 1,000
kilos or 40 cu. ft. of iron or steel
bars (No. 54143); and at P13.50 per ton or any fraction thereof of any single
package weighing more than two tons (Nos. 54142 & 54144).
However, the defense was not interposed by appellees
in their answer to the complaint, and evidence as to the actual value of the
missing lifts and the other damages suffered by appellant in order to procure
their replacement was duly admitted at the trial. In fact the only reason alleged by appellees in their answer as to why they refused to pay
appellant’s claim was that it had not been filed within the fifteen-day period
stated in the management contract. It
was quite late for them to raise the new defense for the first time on appeal.
With respect to the award of attorney’s fees, it should be noted
that in the stipulation of the parties below they expressly left the amount
thereof to the discretion of the court.
And the amount of P1,000.00 we have
awarded is just and reasonable.
Wherefore, the motion for reconsideration is denied.
Concepcion, C.J., Reyes, Dizon, Regala, Bengzon, Zaldivar, Sanchez, and Castro, JJ., concur.