CHIOK HO, PLAINTIFF AND APPELLEE, VS. COMPAÑIA MARITIMA, ET AL., DEFENDANTS; MANILA PORT SERVICE, ET AL., DEFENDANTS AND APPELLANTS.

During the period of May 11 to
15, 1960, a shipment of 69 cases containing radio parts was discharged from the
vessel S.S. Samar of the Compañia Maritima and placed in
the Special Cargo Coral of the Manila Port Service which was then operating the
arrastre service at the Port of Manila, said shipment
being consigned to the order of the Marinduque Iron
Mines, Inc.

After paying the sum of P42.14
representing the arrastre charges, the shipment was delivered to the consignee
thru a delivery permit on the back of which was stamped a notice limiting the
liability of the Manila Port Service. In addition to such delivery permit, there
was also delivered to the consignee pertinent gate passes on which was printed
an annotation containing a similar notice relative to the limitation of the
liability of the arrastre operator, and after
examining the shipment as delivered in the manner above-mentioned, the consignee
discovered that of the 69 cases of radio parts which were discharged from the
carrying vessel into the custody of the Manila Port Service, only 65 cases were
available, because 4 cases were found missing. The total invoice value of the
radio parts contained in the missing cases is $1,683.59 which, converted to our
currency, amounts to P3,402.50.

The shipment having been assigned
to one Chiok Ho, the latter on May 9, 1961 made a
formal demand upon the Manila Port Service for the payment of said sum of
P3.402.50, and upon its refusal to do so, Chiok Ho
commenced the present action before the Court of Fir3′ Instance of Manila to
recover not only the amount of P3,402.50, but also
Pl.500.00 as attorney’s fees, and P500.00 as expenses of litigation.

The Manila Port
Service and the Manila Railroad Company, which became the real defendants in the
case. denied in their answer the material allegations of the
complaint and, as special defense, set up the management contract entered into
between the Bureau of Customs and the Manila Port Service the contents of which
were known to, and are binding on the plaintiff. And after the parties had
submitted a partial stipulation of facts, but without submitting any additional
evidence as was reserved in said stipulation, the court a quo rendered decision
ordering defendants to “pay, jointly and severally, to plaintiff the amount of
P3,402.60, with interest thereon at the legal rate from
the date of the filing of the complaint, plus the sum of P1,000.00 as attorney’s
fees and the costs of action.

Defendants interposed the present
appeal.

In the delivery permit and the
pertinent gate passes which were used by the appellee
to withdraw the shipment in question from the customs house where the same was
deposited, there was stamped thereon a notice containing section 15 of the
management contract entered into between the Bureau of Customs and the Manila
Port Service relative to the liability of the Manila Port Service regarding said
shipment wherein it was expressly provided that when the claim for indemnity for
a particular loss is rejected such claim shall be filed with said Manila Port
Service “within 15 days from the date of discharge °f the last package from the
carrying vessel.” Since the appellee did not file his
claim with the Manila Port Service within the aforesaid period from
May 15,
1960 the
date of discharge of the last package of the shipment the carrying vessel,
defendants contend that his claim is already barred and, consequently, his
action should be dismissed.

The appellee, however, contends that it was impossible him to
comply with the above requirement because the shipment was only delivered to him
after the expiration of the reglementary 15-day period
for which reason he only filed the claim required in the agreement much
thereafter or on June 13,
1960
relative to cases covered by Bill of Lading No. Y-MA-10, and
on June 16,
1960 relative to cases covered by
Bill of Lading No. Y-MA-11. He cannot, therefore, he considered as having
infringed the above requirement and, consequently, his complaint has a good
cause of action.

The stipulation of facts
submitted in this case between the parties, however, is totally bereft of the
needed data for an intelligent determination of this case for there is nothing
said therein as to when the shipment was actually delivered to the consignee.
Said stipulation merely shows that from May 11 to 15, 1960 the shipment of 69
cases of radio parts was discharged from the carrying vessel and placed in the
Special Cargo Coral of the Manila Port Service where it stayed indefinitely,
while the next important item mentioned therein is that the consignee made a
provisional claim for certain alleged loss on two occasions, one on June 13,
1960 relative to the cargo covered by Bill of Lading No. Y-MA-10 and another on June 16,
1960 relative to the cargo covered by
Bill of Lading No. Y-MA-11. But the stipulation is completely silent as to when
the shipment was delivered to the consignee. It is not enough that the consignee
be notified of the discharge of the shipment from the carrying vessel in order
that section 15 of the management agreement may be applicable. It is equally
important to indicate the date when the shipment was actually delivered to the
consignee in order that he may be the chance to discover if there is something,
missing lost in the shipment. Only in this way can he be apprised of the loss
and file the necessary claim,—not otherwise since this
is a matter of defense on the part of the defendants, in the absence of proof to
the contrary, it should be presumed that the claim was filed within the reglementary period, as properly found by the lower court.

“Secondly, the provision of
Section 15 of the Management tract is a matter of defense, in fact impleaded in defendants’ Answer as an affirmative and
special defense. The burden was, therefore, upon the
defendants to prove that all conditions necessary to its applicability to the
case at bar exist. Among the conditions imposed by said section are (a) that the
cargo handled by the arrastre operator is delivered to
the importer or consignee within 15 days from the date of discharge from the
carrying vessel without being stored in the meantime in the arrastre operator’s Special Cargo Corral for a length of
time reading beyond the 15-day period, (b) that the loss of cargo occurred
during the 15-day period, and (c) that the importer or consignee knew of such
loss. Not one of these conditions was proved by the defendants. Therefore, as
the situation contemplated by Section 15 of the Management Contract has not been
shown by the defendants, the Court is constrained to rule that the 15-day period
for the filing of a provisional claim cannot be applied in the instant
case.”

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

Bengzon, C. J., Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.