G.R. No. L-16629. January 31, 1962
SOUTHERN LINES, INC., PETITIONER, VS. COURT OF APPEALS AND CITY OF ILOILO, RESPONDENTS.
DE LEON, J.:
Appeals in CA—G. R. No. 15579-R affirming that of the Court of First Instance of
Iloilo which sentenced petitioner Southern Lines, Inc. to pay respondent City of
Iloilo the amount of P4,931.41.
Sometime in 1948, the City of Iloilo requisitioned for rice from the National
Rice and Corn Corporation (hereinafter referred to as NARIC) in Manila. On
August 24 of the same year, NARIC, pursuant to the order, shipped 1,726 sacks of
rice consigned to the City of Iloilo on board the SS “General Wright” belonging
to the Southern Lines, Inc. Each sack of rice weighed 75 kilos and the entire
shipment as indicated in the bill of lading had a total weight of 129,450 kilos.
According to the bill of lading, the cost of the shipment was P63,115.50,
itemized and computed as follows:
Unit price per bag P36.25 P62,567.50 Handling at P0.13 per bag 224.38 Trucking at P2.50 per bag 323.62 _________ 63.115.50
On September 3, 1948, the City of Iloilo received the shipment and paid the
amount of P63,115.50. However, it was noted at the foot of the bill of lading
that the City of Iloilo “Received the above mentioned merchandise apparently in
same condition as when shipped, save as noted below: actually received 1685
sacks with a gross weight of 116,131 kilos Upon actual weighing. Total shortage
ascertained 13,319 kilos.” The shortage was equivalent to 41 sacks of rice with
a net weight of 13,319 kilos, the proportionate value of which was P6,486.35.
On February 14, 1951, the City of Iloilo filed a complaint in the Court of
First Instance of Iloilo against NARIC and the Southern Lines, Inc. for the
recovery of the amount of P6,486.35 representing the value of the shortage of
the shipment of rice. After trial, the lower court absolved NARIC from the
complaint, but sentenced the Southern Lines, Inc. to pay the amount of P4,931.41
which is the difference between the sum of P6,486.35 and P1,554.94 representing
the latter’s counterclaim for handling and freight.
The Southern Lines, Inc. appealed to the Court of Appeals which affirmed
the judgment of the trial court. Hence, this petition for review.
The only question to be determined in this petition is whether or not the
defendant-carrier, the herein petitioner, is liable for the loss or shortage of
the rice shipped.
Article 361 of the Code of Commerce provides:
“ART. 361.—The merchandise shall be transported at the risk and venture of
the shipper, if the contrary has not been expressly stipulated.As a consequence, all the losses and deteriorations which the goods may
suffer during the transportation by reason of fortuitous event, force majeure,
or the inherent nature and defect of the goods, shall be for the account and
risk of the shipper.Proof of these accidents is incumbent upon the carrier.”
Article 362 of the same Code provides:
“ART. 362.—Nevertheless, the carrier shall be liable for the losses and
damages resulting from the causes mentioned in the preceding article if it is
proved, as against him, that they arose through his negligence or by reason of
his having failed to take the precautions which usage has established among
careful persons, unless the shipper has committed fraud in the bill of lading,
representing the goods to be of a kind or quality different from what they
really were.If, notwithstanding the precautions referred to in this article, the goods
transported run the risk of being lost, on account of their nature or by reason
of unavoidable accident, there being no time for their owners to dispose of
them, the carrier may proceed to sell them, placing them for this purpose at the
disposal of the judicial authority or of the officials designated by special
provisions.”
Under the provisions of Article 361, the defendantcarrier in order to free
itself from liability, was only obliged to prove that the damages suffered by
the goods were “by virtue of the nature or defect of the articles.” Under the
provisions of Article 362, the plaintiff, in order to hold the defendant liable,
was obliged to prove that the damages to the goods by virtue of their nature,
occurred on account of its negligence or because the defendant did not take the
precaution adopted by careful persons. (Government vs. Ynchausti & Co., 40
Phil., 219, 223).
Petitioner claims exemption from liability by contending that the shortage in
the shipment of rice was due to such factors as the shrinkage, leakage or
spillage of the rice on account of the bad condition of the sacks at the time it
received the same and the negligence of the agents of respondent City of Iloilo
in receiving the shipment. The contention is untenable, for, if the fact of
improper packing is known to the carrier or his servants, or apparent upon
ordinary observation, but it accepts the goods notwithstanding, such condition,
it is not relieved of liability for loss or injury resulting therefrom. (9 Am.
Jur., 869.) Furthermore, according to the Court of Appeals, “appellant
(petitioner) itself frankly admitted that the strings that tied the bags of rice
were broken; some bags were with holes and plenty of rice were spilled inside
the hull of the boat, and that the personnel of the boat collected no less than
26 sacks of rice which they had distributed among themselves.” This finding,
which is binding upon this Court, shows that the shortage resulted from the
negligence of petitioner.
Invoking the provisions of Article 366 of the Code of Commerce and those of
the bill of lading, petitioner further contends that respondent is precluded
from filing an action for damages on account of its failure to present a claim
within 24 hours from receipt of the shipment. It alrso cites the cases of
Government vs. Ynchausti & Co., 24 Phil., 315 and Triton Insurance Co. vs.
Jose, 33 Phil., 194, ruling to the effect that the requirement that the claim
for damages must be made within 24 hours from delivery is a condition precedent
to the accrual of the right of action to recover damages. These two cases
above-cited are not applicable to the case at bar. In the first cited case, the
plaintiff never presented any claim at all before filing the action. In the
second case, there was payment of the transportation charges which precludes the
presentation of any claim against the carrier. (See Article 366, Code of
Commerce.) It is significant to note that in the American case of Hoye vs.
Pennsylvania Railroad Co., 13 Ann. Cas. 414, it has been said:
“. . . ‘It has been held that a stipulation in the contract of shipment
requiring the owner of the goods to present a notice of his claim to the carrier
within a specified time after the goods have arrived at their destination is in
the nature of a condition precedent to the owner’s right to enforce a recovery,
and that he must show in the first instance that he has complied with the
condition, or that the circumstances were such that to have complied with it
would have required him to do an unreasonable thing. The weight of
authority, howevert sustains the view that such a stipulation is more in the
mature of a limitation upon the owner’s right to recovery, and that the burden
of proof is accordingly on the carrier to show that the. limitations was
reasonable and in proper form or within the time stated.‘ (Hutchinson on
Carrier, 3rd ed., par. 447).” Italics Supplied.
In the case at bar, the record shows that petitioner failed to plead this
defense in its answer to respondent’s complaint and, therefore, the same is
deemed waived (Section 10, Rule 9, Rules of Court) and cannot be raised for the
first time at the trial or on appeal. (Maxilom vs. Tabotabo, 9 Phil., 390.)
Moreover, as the Court of Appeals has said:
“* * * the records reveal that the appellee (respondent) filed the present
action, within a reasonable time after the short delivery in the shipment of the
rice was made. It should be recalled that the present action is one for the
refund of the amount paid in excess, and not for damages or the recovery of the
shortage; for admittedly the appellee (respondent) had paid the entire value of
the 1726 sacks of rice, subject to subsequent adjustment, as to shortages or
losses. The bill of lading does not at all limit the time for filing an action
for the refund of money paid in excess.”
Wherefore, the decision of the Court of Appeals is hereby affirmed in all
respects and the petition for certiorari denied. With costs against the petitioner.
Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, and Dizon,
JJ., concur.