MONICO G. ROLDAN, PLAINTIFF AND APPELLANT, VS. LIM PONZO & CO., DEFENDANT AND APPELLEE.

Plaintiff in this action seeks to recover damages in the sum of P3,780.12 for
the alleged failure of the defendant company to live up to its contract for the
transportation of 2,244 packages of sugar from plaintiff’s hacienda to Iloilo.
Defendant admits the execution of the contract, the receipt from the plaintiff
of 2,244 packages of sugar for transportation, and the loss of a part of this
sugar. Counsel for defendant insists, however, that it should not be held
responsible for its failure to carry out the contract, because, as it alleges,
the sugar was lost in a wreck in the river Jalaud, without fault on the part of
the owner, the patron, or the crew of the vessel.

There would not appear to be much question as to the fact that the defendant
company’s lorcha was wrecked in the river Jalaud, and that of the 2,244 packages
of plaintiff’s sugar aboard the vessel, only 1,022 packages were saved in a more
or less damaged condition.

At the trial in the court below, the plaintiff undertook to establish the
facts upon which he based his claim for damages and introduced evidence tending
to disclose that the lorcha had been wrecked and the sugar lost through
the negligence and lack of skill of the master of the lorcha in the management
of his vessel. After the plaintiff had submitted all his evidence and before the
defendant company had called any of its witnesses, the trial judge peremptorily
dismissed the complaint on the ground that it was neither alleged or proved that
the plaintiff had complied with the provisions of section 366 of the Commercial
Code. That section is as follows:

“Within the twenty-four hours following the receipt of the merchandise a
claim may be brought against the carrier on account of damage or average found
therein on opening the packages, provided that the indication of the damage of
average giving rise to the claim cannot be ascertained from the exterior of said
packages, in which case said claim would only be admitted on the receipt of the
packages.

“After the periods mentioned have elapsed, or after the transportation
charges have been paid, no claim whatsoever shall be admitted against the
carrier with regard to the condition in which the goods transported were
delivered.”

We agree with plaintiff’s counsel that the dismissal of the complaint on this
ground was error which necessitates the return of the record to the court below.
Article 366 of the Commercial Code is limited to cases of claims for damage to
goods actually turned over by the carrier and received by the consignee, whether
those damages be apparent from an examination of the packages in which the goods
are delivered, or of such a character that the nature and extent of the damage
is not apparent until the packages are opened and the contents examined. Clearly
it has no application in cases wherein the goods entrusted to the carrier are
not delivered by the carrier to the consignee. In such cases there can be no
question of a claim for damages suffered by the goods while in transport, since
the claim for damages arises exclusively out of the failure to make
delivery.

The object sought to be attained by the requirement of the submission of
claims in pursuance of this article is to compel the consignee of goods
entrusted to a carrier to make prompt demand for settlement of alleged damages
suffered by the goods while in transport, so that the carrier will be enabled to
verify all such claims at the time of delivery or within twenty-four hours
thereafter, and if necessary fix responsibility and secure evidence as to the
nature and extent of the alleged damages to the goods while the matter is still
fresh in the minds of the parties.

To this end provision is made in article S67 of the Code for the prompt
settlement of disputes as to the nature and extent of the alleged damages, and
for the final disposition of the damaged goods, which is wholly inconsistent
with the contention that these articles are applicable in cases wherein the
claim against the carrier is founded upon his failure to make delivery of the
goods entrusted to him.

Article 367 of the Commercial Code is as follows:

“If there should occur doubts and disputes between the consignee and the
carrier with regard to the condition of goods transported at the time of their
delivery to the former, the said goods shall be examined by experts appointed by
the parties, and a third one, in case of disagreement, appointed by the judicial
authority, the result of the examination always being reduced to writing; and if
the persons interested should not agree to the report of the experts and could
not reach an agreement, said judicial authority shall have the merchandise
deposited in a safe warehouse, and the parties interested shall make use of
their rights in the proper manner.”

It is very clear, then, that in so far as this action seeks to recover
damages for defendant’s failure to deliver 1,222 packages or bayones of
sugar, the failure to make claim for such damages under the provisions of
article 366 of the Commercial Code in no wise affects the respective rights of
the parties.

In so far as this action is founded on a claim for damages resulting from the
wetting of the 1,022 packages of sugar which were saved from the wreck, it seems
clear that if these 1,022 packages of sugar were delivered by the carrier and
received by the consignee under and in pursuance of the terms of the contract,
this claim for damages would be defeated by the plaintiff’s failure to make
claim therefor in accordance with the terms of article 366 of the Code.

We are of opinion, however, that the necessity for making the claim in
accordance with that article did not arise if, as it is alleged, these 1,022
packages of sugar were recovered from the wreck by the plaintiff, himself, in an
effort, by his own activities, to save his property from total loss. The
measures to be taken under the terms of article 367 of the Code when the parties
are unable to arrive at an amicable settlement of claims for damages set up in
accordance with article 366, quite clearly indicate that the necessity for the
presentation of claims under this article arises only in those cases wherein the
carrier makes delivery and the consignee receives the goods in pursuance of the
terms of the contract.

Until the defendant has had an opportunity to submit his evidence it is
impossible to determine under what conditions these 1,022 packages of sugar came
into the possession of the plaintiff, or to determine whether his claim for
damages by the wetting of this sugar, if well founded in every other respect, is
or should be defeated by his failure to make claim for such damages in the
manner and form indicated in article 366 of the Commercial Code.

We conclude that the judgment entered in the court below should be reversed
and the record remanded to the court below for a new trial upon all the issues
raised by the pleadings, it being expressly understood, however, that the
evidence already in the record may be considered as submitted at the new trial,
without prejudice to the right of either party to offer such additional evidence
as he may deem proper in support of the allegations set forth in the pleadings.
No costs will be taxed in this instance. So ordered.

Arellano, C. J., Torres, Johnson, Araulllo, Street, and Malcolm,
JJ., concur.