STANDARD OIL COMPANY OF NEW YORK, PLAINTIFF AND APPELLEE, VS. MANUEL LOPEZ CASTELO, DEFENDANT AND APPELLANT.

While the boat was being thus used by the charterer in the
interisland trade, the Standard Oil Company delivered to the agent of
the boat in Manila a quantity of petroleum to be conveyed to the port
of Casiguran, in the Province of Sorsogon. For this consignment a bill
of lading of the usual form was delivered, with the stipulation that
freight should be paid at the destination. Said bill of lading
contained no provision with respect to the storage of the petroleum,
but it was in fact placed upon the deck of the ship and not in the hold.

While the boat was on her way to the port mentioned, and off the
western coast of Sorsogon, a violent typhoon passed over that region,
and while the storm was at its height the captain was compelled for the
safety of all to jettison the entire consignment of petroleum
consisting of two hundred cases. When the storm abated the ship made
port, and thirteen cases of the petroleum were recovered, but the
remainder was wholly lost.

To recover the value of the petroleum thus jettisoned but not
recovered, the present action was instituted by the Standard Oil
Company against the owner of the ship in the Court of First Instance of
Manila, where judgment was rendered in favor of’ the plaintiff. From
this judgment the defendant appealed.

No question is made upon the point that the captain exercised proper
discretion in casting this petroleum overboard, as a step necessary to
the salvation of the ship; and in fact it appears that even after the
vessel was thus eased, she was with difficulty prevented from
capsizing, so great was the intensity of the storm.

The first question for discussion is whether the loss of this
petroleum was a general average loss or a particular loss to be borne
solely by the owner of the cargo. Upon this point it will be observed
that the cargo was carried upon deck; and it is a general rule, both
under the Spanish Commercial Code and under the doctrines prevailing in
the courts of admiralty of England and America, as well as in other
countries, that ordinarily the loss of cargo carried on deck shall not
be considered a general average loss. This is clearly expressed in Rule
I of the YorkAntwerp Rules, as follows: “No jettison of deck cargo
shall be made good as general average.” The reason for this rule is
found in the fact that deck cargo is in an extra-hazardous position
and, if on a sailing vessel, its presence is likely to obstruct the
free action of the crew in managing the ship. Moreover, especially in
the case of small vessels, it renders the boat top-heavy and thus may
have to be cast overboard sooner than would be necessary if it were in
the hold; and naturally it is always the first cargo to go over in case
of emergency. Indeed, in subsection 1 of article 815 of the Code of
Commerce, it is expressly declared that deck cargo shall be cast
overboard before cargo stowed in the hold.

But this rule, denying deck cargo the right to contribution by way
of general average in case of jettison, was first made in the days of
sailing vessels; and with the advent of the steamship as the principal
conveyer of cargo by sea, it has been felt that the reason for the rule
has become less weighty, especially with reference to coastwise trade;
and it is now generally held that jettisoned goods carried on deck,
according to the custom of trade, by steam vessels navigating coastwise
and inland waters, are entitled to contribution as a general average
loss (24 R. C. L., 1419).

Recognition is given to this idea in two different articles in the
Spanish Code of Commerce. In the first it is in effect declared that,
if the marine ordinances allow cargo to be laden on deck in coastwise
navigation, the damages suffered by such merchandise shall not be dealt
with as particular average (art. 809 [3], Comm. Code); and in the other
it is stated that merchandise laden on the upper deck of the vessel
shall contribute in the general average if it should be saved; but that
there shall be no right to indemnity if it should be lost by reason of
being jettisoned for the general safety, except when the marine
ordinances allow its shipment in this manner in coastwise navigation
(art. 855, Comra, Code).

The Marine Regulations now in force in these Islands contain
provisions recognizing the right of vessels engaged in the interisland
trade to carry deck cargo; and express provision is made as to the
manner in which it shall be bestowed and protected from the elements
(Phil. Mar. Reg. [1913], par. 23). Indeed, there is one commodity,
namely, gasoline, which from its inflammable nature is not permitted to
be carried in the hold of any passenger vessel, though it may be
carried on the deck if certain precautions are taken. There is no
express provision declaring that petroleum shall be carried on deck in
any case; but having regard to its inflammable nature and the known
practices of the interisland boats, it cannot be denied that this
commodity also, as well as gasoline, may be lawfully carried on deck in
our coastwise trade.

The reason for adopting a more liberal rule with respect to deck
cargo on vessels used in the coastwise trade than upon those used for
ordinary ocean borne traffic is to be found of course in the
circumstance that in the coastwise trade the boats are small and
voyages are short, with the result that the coasting vessel can use
more circumspection about the condition of the weather at the time of
departure; and if threatening weather arises, she can often reach a
port of safety before disaster overtakes her. Another consideration is
that the coastwise trade must as a matter of public policy be
encouraged, and domestic traffic must be permitted under such
conditions as are practically possible, even if not altogether ideal.

From what has been said it is evident that the loss of this
petroleum is a general and not a special average, with the result that
the plaintiff is entitled to recover in some way and from somebody an
amount bearing such proportion to its total loss as the value of both
the ship and the saved cargo bears to the value of the ship and entire
cargo before the jettison was effected. Who is the person, or persons,
who are liable to make good this loss, and what are the conditions
under which the action can be maintained?

That the owner of the ship is a person to whom the plaintiff in this
case may immediately look for reimbursement to the extent above stated
is deducible not only from the general doctrines of admiralty
jurisprudence but from the provisions of the Code of Commerce
applicable to the case. It is universally recognized that the captain
is primarily the representative of the owner; and article 586 of the
Code of Commerce expressly declares that both the owner of the vessel
and the naviero, or charterer, shall be civily liable for the
acts of the master. In this connection, it may be noted that there is a
discrepancy between the meaning of naviero, in article 586 of the Code of Commerce, where the word is used in contradistinction to the term “owner of the vessel” (propietario),
and in article 587 where it is used alone, and apparently in a sense
broad enough to include the owner. Fundamentally the word “naviero”
must be understood to refer to the person undertaking the voyage, who
in one case may be the owner and in another the charterer. But this is
not vital to the present discussion. The real point to which we direct
attention is that, by the express provision of the Code, the owner of
the vessel is civilly liable for the acts of the captain; and he can
only escape from this civil liability by abandoning his property in the
ship and any freight that he may have earned on the voyage (arts. 587,
588, Code of Comm.).

Now, by article 852 of the Code of Commerce the captain is required
to initiate the proceedings for the adjustment, liquidation, and
distribution of any gross average to which the circumstances of the
voyage may have given origin; and it is therefore his duty to take the
proper steps to protect any shipper whose goods may have been
jettisoned for the general safety. In ordinary practice this, we
suppose, would be primarily accomplished by requiring the consignees of
other cargo, as a condition precedent to the delivery of their goods to
them, to give a sufficient bond to respond for their proportion of the
general average. But it is not necessary here to inquire into details.
It is sufficient to say that the captain is required to take the
necessary steps to effect the adjustment, liquidation, and distribution
of the general average. In the case before us the captain of the vessel
did not take those steps; and we are of the opinion that the failure of
the captain to take those steps gave rise to a liability for which the
owner of the ship must answer.

But it is said—and the entire defense seems to be planted upon this
proposition—that the liquidation of the general average is, under
article 852 and related provisions, a condition precedent to the
liability of the defendant, and that at any rate the defendant, as
owner of the ship, should only be held liable for his proportion of the
general average. It is also suggested that if the plaintiff has any
right of action at all upon the state of facts here presented, it is
against the captain, who has been delinquent in performing the duty
which the law imposes on him.

This argument involves, we think, a misconception of the true import
of the provisions relating to the adjustment and liquidation of general
average. Clearly, for one thing, those provisions are intended to
supply the shipowner, acting of course in the person of the captain,
with a means whereby he may escape bearing the entire burden of the
loss and may distribute it among all the persons who ought to
participate in sharing it; but the making of the liquidation is not a
condition precedent to the liability of the shipowner to the shipper
whose property has been jettisoned.

It is true that if the captain does not comply with the article
relating to the adjustment, liquidation, and distribution of the
general average, the next article (852) gives to those
concerned—whether shipowner (naviero) or shipper—the right to
maintain an action against the captain for indemnification for the
loss; but the recognition of this right of action does not by any means
involve the suppression of the right of action which is elsewhere
recognized in the shipper against the ship’s owner. The shipper may in
our opinion go at once upon the owner and the latter, if so minded, may
have his recourse for indemnization against his captain.

In considering the question now before us it is important to
remember that the owner of the ship ordinarily has vastly more capital
embarked upon a voyage than has any individual shipper of cargo.
Moreover, the owner of the ship, in the person of the captain, has
complete and exclusive control of the crew and of the navigation of the
ship, as well as of the disposition of the cargo at the end of the
voyage. It is therefore proper that any person whose property may have
been cast overboard by order of the captain should have a right of
action directly against the ship’s owner for the breach of any duty
which the law may have imposed on the captain with respect to such
cargo. To adopt the interpretation of the law for which the appellant
contends would place the shipowner in a position to escape all
responsibility for a general average of this character by means of the
delinquency of his own captain. This cannot be permitted. The evident
intention of the Code, taken in all of its provisions, is to place the
primary liability upon the person who has actual control over the
conduct of the voyage and who has most capital embarked in the venture,
namely, the owner of the ship, leaving him to obtain recourse, as it is
very easy to do, from other individuals who have been drawn into the
venture as shippers.

It results that the plaintiff is entitled to recover in this action;
and the only additional point to be inquired into is the amount that
should be awarded. In this connection it appears that the total value
of the jettisoned cargo, belonging partly to the plaintiff and partly
to another shipper, was P880.35, of which P719.95 represented the value
of the plaintiff’s petroleum. Upon the apportionment of this total loss
among the different interests involved, to wit, value of ship, value of
cargo, and the earned but lost freight, it appears that the amount of
the loss apportionable to the plaintiff is P11.28. Deducting this from
the value of the petroleum, we have as a result, the amount of P708.67,
which is the amount for which judgment should be given.

Accordingly, modifying the judgment appealed from to this extent, we affirm the same, with costs. So ordered.

Johnson, and Villamor, JJ., concur.

Mapa, C. J., concurs in the result.

ARAULLO, J., with whom concurs AVANCENA, J., dissenting:

As the loss of the petroleum shipped by the plaintiff company on board the vessel Batangueno,
which belongs to the defendant, constitutes gross average and, as the
latter, being, according to the law, an agent, all of which is admitted
in the foregoing decision, the provisions applicable to the case and
which should be taken into consideration in deciding the appeal before
this court are those of various articles in sections 1 of title 4,and
sections 1, 2, and 3, of title 5, of Book 3 of the Code of Commerce.

Article 811 defines gross or general averages as damages and
expenses which are deliberately caused in order to save the vessel, her
cargo, or both at the same time, from a real and known risk, and
particularly, such as goods jettisoned to lighten the vessel, whether
they belong to the vessel, to the cargo, or to the crew, and the damage
suffered through said act by the goods on board; the damage caused to
the vessel by scuttling or entering her hold in order to save the
cargo; and the expenses of the liquidation of the average. Article 812
provides that in order to satisfy the amount of the gross or general
average, all persons having an interest in the vessel and cargo at the
time of the occurrence of the average shall contribute. Article 846
provides that the persons interested in the proof and liquidation of
averages may mutually agree and bind themselves at any time with regard
to the liability, liquidation and payment thereof, and that, in the
absence of agreements, the proof of the average shall take place in the
port where the repairs are made, should any be necessary, or in the
port of unloading; that the liquidation shall take place in the port of
unloading should it be a Spanish port (now Filipino); that should the
average have occurred outside of the jurisdictional waters of the
Philippines or should the cargo have been sold in a foreign port by
reason of the arrival of the vessel under stress in said port,
liquidation shall be made in the port of arrival; and, finally, if the
average should have occurred near the port of destination, And that
port is made, the proceedings for the proof and liquidation
above-metioned shall be had there.

Article 847 provides that when the liquidation of the averages is
made privately by virtue of agreement, as well as when a judicial
authority takes part therein at the request of any of the parties
interested who do not agree thereto, all of them shall be cited and
heard, should they not have renounced this right; that should they not
be present or not have a legitimate representative, the liquidation
shall be made by the consul in said port, and where there is none, by
the judge or court of competent jurisdiction, according to the laws of
the country, and for the account of the proper person; and, finally,
desiring to furnish all possible means to effect the liquidation, the
legislator provides in the last part of said article that, when the
representative is a person well-known in the place where the
liquidation takes place, his intervention shall be admitted and will
produce legal effect, even though he be authorized only by a letter of
the shipowner, freighter, or underwriter; and as to general or gross
averages, he lays down concrete and conclusive rules in articles 853,
854, and 858, with respect to the form and mode in which the experts
appointed by the interested parties or by the court shall fulfill their
duties, as to the examination of the vessel, the repairs and the
appraisement of their cost, as well as to the appraisement of the goods
which are to contribute to the gross average and those which constitute
the average, likewise providing in article 857 that, after the
appraisement by the experts of the goods saved, lost, and those which
constitute the gross average, and after the repairs have been made to
the vessel, should any be necessary, and in such case, after the
approval of the accounts by the persons interested or by the court, the
entire record shall be turned over to the liquidator appointed, in
order that he may proceed with the pro rata distribution of
the average among the contributing values, after fixing the amount
mentioned in said article of the contributing capital: (1) By the value
of the cargo, according to the rules established in article 854; (2) by
the value of the vessel in her actual condition, according to a
statement of experts; (3) by 50 per cent of the amount of the freight,
deducting the remaining 50 per cent for wages and maintenance of the
crew.

Lastly, in relation to said provisions, article 851 authorizes the
captain to proceed privately, upon the agreement of the parties
interested, in the adjustment, liquidation, and distribution of the
gross average, and for this purpose, it is his duty to call, within
forty hours following the arrival of the vessel at the port, the
persons interested in order that they may decide whether the adjustment
or liquidation of the gross average is to be made by experts and
liquidators appointed by themselves, in which case this shall be done
should the persons interested agree, and said article also provides
that should an agreement not be possible, the captain shall apply to
the judge or court of competent jurisdiction, who shall be the one of
the port where the proceedings are to be held in accordance with the
provisions of the Code of Commerce, to the consul of Spain (now of the
United States), should there be one, or otherwise to the local
authority when the proceedings are to be held in a foreign port. And
finally, the next article, 852, says: “If the captain should not comply
with the provisions contained in the foregoing article, the shipowner
or agent or the freighters shall demand the liquidation, without
prejudice to the action they may bring to demand indemnity from him.”

It is therefore beyond question that the action of the plaintiff to
recover indemnity for the damages which it claims to have suffered by
reason of the failure of the captain of the vessel Batangueno
to proceed with the liquidation and distribution of the gross average
in which it was a contributor, and by reason of his act in delivering
to the other shippers their respective goods, without first requiring
them to give bond, should have been brought not against the shipowner
or agent, who is the defendant in this case, but against the captain
himself of the vessel Batangueno.

Although in the preceding decision it is clearly recognized that the
captain should have begun the proceedings for the adjustment,
liquidation, and distribution of the gross average in question, and
that it was his duty to take the proper steps to protect any shipper
whose goods may have been jettisoned for the common security, it is
also stated that in ordinary practice this is supposed to be complied
with by requiring the consignees of the other cargoes, as a condition
precedent to the delivery thereof, to give a sufficient bond to answer
proportionally for the gross average, and, lastly, that the failure of
the captain to take the necessary steps to effect the adjustment,
liquidation, and distribution of said average gave rise to the
responsibility which should be enforced against the defendant
shipowner, against whom the shipper may immediately institute his
action, the former having in turn, if he so desires, the right to bring
suit against the captain. The majority opinion attempts to support the
last proposition and invokes articles 586, 587, and 588.

First of all, according to articles 866, 867, and 888 of the same
Code, a bond should be required of the shippers by the captain after
the liquidation is already approved, if the contributors should fail to
pay the amount of the quota by the third day after having been required
to do so, and before delivering to them the goods saved,— the captain
having the right, upon failure to give the bond, to delay the delivery
of the goods until the shippers pay their part of the gross average
corresponding to each of them—and not before proceeding with the
liquidation, for the simple reason that the amount of the bojid may
only be fixed after the determination of the amount which each of the
shippers may be obliged to contribute to the payment of the average,
and this is so clear and evident that in article 867 the captain is
authorized to attach the goods saved until the shippers should pay the
amount, if they should fail to do so by the third day after demand upon
them. And since the captain may require bond, he may delay the delivery
of the goods saved to the shippers until they make the payment. In the
case at bar, no step having as yet been taken for the adjustment and
liquidation of the gross average in question, the fact that the captain
of the Batangueno delivered the respective cargoes of the
other shippers without previously requiring a bond, can not constitute
the basis for making the captain responsible, much less the owner of
the vessel, as the trial court has erroneously held in the judgment
appealed from and as this court is given to understand in referring to
said filing of the bond as a prerequisite to the delivery of the cargo.
This is because the time was not opportune when the captain should and
could exact the bond and the law neither requires such bond to be filed
before proceeding with the liquidation, inasmuch as the shipowner or
agent, as well as the shippers, being interested in proceeding with the
liquidation, the Code authorizes them, first, to demand it from the
captain and later to institute the action corresponding to them against
him to recover indemnity if he should not comply with the provisions
upon the subject, that is, if he should fail to effect the liquidation,
or if, in lieu thereof, he should deliver the respective cargoes to the
shippers or permit them to dispose of the same, in which case the
responsibility may be fixed upon the captain and not upon the agent
upon this ground, and for not requiring the shippers to give said bond.

In the second place, although it is true that the captain is, as
stated in the decision, primarily the representative of the shipowner
or agent, it cannot in all cases, as the decision gives us to
understand, be deduced that the shipowner must be civilly responsible
for all the acts of the captain.

The Code of Commerce clearly and positively specifies the cases in
which such responsibility is demandable from the agent or shipowner,
and the cases in which he is not responsible, the responsibility
attaching only to the captain. These cases can not be confused in view
of the clear and positive provisions of said Code, in relation to the
method adopted in the exposition thereof and following the order of the
subjects contained in this law.

Articles 586, 587, and 588, invoked in the decision in question in
order to maintain that theory, are found in title 2 of Book 3 of said
Code which treats of the persons who intervene in maritime commerce,
that is, as may be seen in sections 1, 2, and 3 thereof, the shipowners
and agents, the captains and masters of vessels and the officers and
crew thereof, respectively. Articles 806 to 818 and 846 to 849, and
consequently, article 852, invoked in said decision and which refer to
the gross or general average and to the simple or particular average,
are found in titles 4 and 5 of the same Book 3 which, respectively,
deal with the risks, damages, and accidents of maritime commerce and
with the proof and liquidation of the averages; and they contain all
the provisions of the law relative to said subjects and to the rights
and obligations which arise from the averages.

There is no relation whatever between said articles 586. 587, and
588, invoked in the decision, and those which treat of averages. The
first of said articles establishes the civil responsibility of the
shipowner and agent for the acts of the captain and the obligations
incurred by the latter for the repair, equipment, and provisioning of
the vessel. The second, that is, article 587, establishes the same
responsibility of the agent for indemnities, in favor of third persons,
which may arise from the conduct of the captain in the care of the
goods which the vessel may carry, from which he may exempt himself by
abandoning the vessel with all her equipment and the freight he may
have earned during the voyage. In the present case it is not the
conduct of the captain in the care of the goods which has given rise to
the right to exact the corresponding civil responsibility, but,
according to article 862, the failure of the captain to comply with the
provisions of article 851, with respect to the adjustment, liquidation,
and distribution of the gross average and the failure to attend to the
claims which the agent or the shippers may or should have made,
inasmuch as said article 852 clearly so declares, in refering to the
agent or the shippers in the following words: “Without prejudice to the
action they may bring to demand indemnity from him.” The care of the
goods to which article 857 refers consists in the placing of the goods
in the proper and adequate place for their transportation and due
preservation during the voyage, in such manner that they may not suffer
damages or deterioration nor be taken away, for, according to article
618, which bears some relation to said article 587, the captain is
civilly responsible to the agent and the latter to third persons, who
may have contracted with him, for all damages which may have occurred
to the vessel and the cargoes due to lack of skill or to negligence on
his part and for the substraction or theft committed by the crew,
reserving his right to proceed against the guilty parties; and,
according to article 619, he shall be liable for the cargo from the
time it is turned over to him at the deck or afloat alongside the
vessel at the port of loading until he delivers it on the shore or on
the discharging wharp of the port of unloading, unless the contrary has
been expressly agreed upon; and, finally, according to No. 5 of the
same article 618, he shall be liable for those damages arising from an
undue use of the powers and nonfulfillment of the obligations which are
his in accordance with articles 610 and 612, one of which, the fifth
mentioned in the last article, is to remain constantly on board the
vessel during the time the freight is taken on board and carefully
watch the stowage thereof, which acts, as is well-known, constitute the
means for the effective custody of the goods which may be shipped on
board.

In the present case, if the consignees or owners of the cargo on board the vessel Batangueno
took away with them their respective cargoes or disposed of them upon
arriving at port, after part thereof, which included the petroleum
boxes belonging to the plaintiff, had been jettisoned, it was not
because the captain of said vessel had not fulfilled his duty with
respect to the care of the cargo, but because he did not proceed in
accordance with the provision of article 851 already cited, in the
adjustment, liquidation, and distribution of the gross average caused
by that accident, and did not, as he should have done, according to
article 852, require the liquidation either of the agent or the
shippers. Therefore to them alone, including the plaintiff, and not to
the conduct of the captain in the custody of the cargo, is the fact
attributable that the shippers were able to carry away and dispose of
the cargo saved upon the arrival of the vessel at port.

The third of said articles, that is, 588, cited also in the same
decision, far from making the shipowner or the agent responsible for
the obligations incurred by the captain, exempts them from all
responsibility, if the captain should have exceeded the powers and
privileges which are his by reason of his position or have been
conferred upon him by the former, excepting the case, which bears no
relation whatever to that in question, in which the amounts claimed
were made use of for the benefit of the vessel.

Lastly, although this point has not been touched at all in the
decision now under discussion, according to article 618, No. 5, the
captain shall be civilly liable to the agent, and the latter to third
persons with whom he may have contracted, for the damages arising from
an undue use of his powers and the nonfulfillment of his obligations,
but it adds that such liability shall be “in accordance with articles
610 and 612.” These articles, as may be seen, refer to the powers and
obligations inherent in the position of captain with respect to the
appointment, contract, and command of the crew, direction of the vessel
to the port of destination, the imposition of punishments for crimes
committed on board, contracts for the charter of the vessel, its
preservation and repair, the supplying of books of navigation, and
others, which are mentioned in said last article, the equipping of the
vessel and the receiving of the cargo, etc., among which obligations
there is none which bears the slightest relation to those which the
same Code imposes upon the captain with respect to the adjustment,
liquidation, and distribution of the gross average.

On the other hand, in the various sections of title 4 of Book 3, and
in section 1 of title 5, the Code, in treating of the risks, damages,
and accidents of maritime commerce, specifically indicates the cases in
which the responsibility of the captain is enforcible, those in which
that of the agent or shipowner is demandable and those in which that
responsibility is joint among them, as well as those cases in which no
responsibility may be demanded of the agent or shipowner but only of
the captain.

In effect, article 841 of section 3 of said title 4 provides that if
the wreck or stranding should arise through the malice, or lack of
skill of the captain, or because the vessel put to sea insufficiently
repaired and prepared, the captain shall be responsible for the
indemnification of damages caused to the vessel or the cargo by the
accident, which liability may be demanded by the agent or the shippers;
but there is in said section no provision whatever by which the agent
or shipowner is made responsible.

In article 826 of section 3 of the same title, which deals with
collisions, it is provided that the agent of the vessel at fault shall
indemnify the losses and damages suffered, after an expert appraisal,
if a vessel should collide with another through the fault, negligence,
or lack of skill of the captain, sailing mate, or any other member of
the complement, and, according to article 831, if a vessel should be
forced to collide with another by a third vessel, the agent of the
third vessel shall indemnify for the losses and damages caused, the
captain being civilly liable to said agent, this liability being
understood to be limited to the value of the vessel with all equipment
and freight earned.

In treating of arrivals under stress, section 2 of the same title,
in article 821, declares that when such arrival is not legitimate, the
agent and the captain shall be jointly liable for the expenses incurred.

In treating averages, article 809, No. 8, in section 1 of the same
title, which includes, in simple averages, the damage suffered by the
vessel or cargo by reason of an impact or collision with another,
declares that if the accident occured through the fault or negligence
of the captain, he shall be responsible for all the damages caused, and
in No. 9 of the same article, that the owner of the cargo who is
injured as a result of the fault, negligence, or barratry of the
captain or the crew may demand indemnity from the captain, the vessel
and freight, a rule which is based upon No. 1 of article 618, already
mentioned, according to which the captain shall be civilly responsible
to the agent and the latter to the third persons, for all damages
suffered by the vessel and its cargo by reason of the want of skill or
negligence on his part, a provision which, as is well known, cannot
refer to the case in which the owners of the cargo, having the right to
demand the adjustment, liquidation, and distribution of the gross
average, upon the arrival of the vessel at port, should dispose of the
cargo saved. Such case, as already stated, is the subject of the
express and positive provisions of articles 851 and 852, in relation to
articles 866, 867, and 868, included in section 2 of the same title, as
is shown by the fact that the first of said articles declares that the
captain is responsible to the owners of the goods averaged for the
losses they may have suffered through his delay or negligence in
collecting the amount of the contribution after the liquidation is
approved, and by the fact that the last of said articles, that is, 868,
declares that the captain may exact from the shippers a bond sufficient
to answer for the amount corresponding to the gross average for the
purpose of delaying the delivery to them of the goods saved until they
pay said amount.

It is by these special provisions and not by the general provisions
contained in sections 1, 2, and 3, of title 2, of Book 3 of said Code,
that we must be governed when dealing with the risks, damages, and
accidents of maritime commerce; and gross average being among them,
then, for the failure of the captain of the vessel Batangueno
to comply with the provisions relating to the adjustment, liquidation,
and distribution, the defendant owner of the vessel can not and should
not be made liable, but only the captain, for article 852, already
cited, is clear and positive to the effect that in said case the agent
or the shippers shall demand of the captain the liquidation and may
exercise against him the action to recover the proper indemnity, a
provision which excludes in such case all responsibility of the agent
or owner of the vessel, for the reason that, the latter being,
according to the same article, one of those who, jointly with the
shippers, may ask the captain for the liquidation and institute against
him the corresponding action for indemnification, it would be absurd to
pretend and maintain that the shippers may also institute the same
action against the agent or owner of the vessel, in this manner
converting him from plaintiff into defendant. But, as if it is still
possible to put under discussion and interpret so clear and positive a
provision as that of said article 852, and those related to it which,
as has already been mentioned, are also of the same character, it is
argued in the decision of this court that as “the owner of the ship
ordinarily has vastly more capital embarked upon a voyage than has any
individual shipper of cargo, and moreover, as the owner of the ship, in
the person of the captain, has complete and exclusive control of the
crew and of the navigation of the ship, as well as of the disposition
of the cargo at the end of the voyage, the evident intention of the
Code, taken in all of its provisions, is to place the primary liability
upon * * * the owner of the ship, leaving him to obtain recourse, as it
is very easy to do, from other individuals who have been drawn into the
venture `bas shippers, for, to adopt another interpretation of the law
would place the shipowner in a position to escape all responsibility
for a general average of this character by means of the delinquency of
his own captain. And it is therefore proper that any person whose
property may have been cast overboard by order of the captain should
have a right of action directly against the ship’s owner for the breach
of any duty which the law may have imposed on the captain with respect
to such cargo.”

Such reasoning, however, is not convincing. In the first place, it
is not true that the average in question was occasioned by the fault of
the captain of the vessel Batangueno, for on this point there
is no evidence in the record, but because of the necessity of throwing
overboard part of the cargo of said vessel to save it from the danger
then threatening it; secondly, the purpose of the adjustment and
liquidation of the gross average is to secure contribution from the
parties interested in the vessel and cargo existing at the time of the
occurrence thereof in order to pay the amount of such average (art.
812, Code of Commerce), for which purpose article 858 defines the
procedure for the distribution of the value of the average, stating
that there must be taken into consideration, as already stated by us,
when we were discussing this article, the contributing capital
determined by the value of the cargo, that of the vessel in her actual
condition and the percentage of the amount of the freight reduced by 50
per cent for wages and maintenance of the crew, and further declaring
that after the determination of the amount of the average, it shall be
distributed pro rata among the contributing values and then
paid to the proper parties, after the persons interested therein, that
is, the agent or owner of the vessel and the shippers have consented
thereto, or in default thereof, after the liquidation is duly approved;
and, lastly, as repeatedly stated by us, according to the same
articles, the owner of the vessel, or the agent, is also one of the
interested parties and coparticipants in the adjudication of the
average and its pro rata distribution among the contributing
values. From what has just been said it results that no purpose is
served by considering whether or not he has put in the voyage or
undertaking a capital greater than that of any individual shipper for
the purpose of making him principally liable, that is compelling him to
pay to the shippers what each of the latter as well as he himself has
the right to be paid for in proportion to the amount of the respective
capital fixed according to the rules already stated in the distribution
of the average. This is because, however great the value of the vessel
may be, there cannot be conceded to the shippers in the adjudication a
greater value than that corresponding to them in the adjudication and
distribution of the average, according to the capital determined by the
value of the cargo of each, in conformity with the rules established in
article 854 for the assessment of the same cargo and of the goods which
have to contribute to said average, nor can there be conceded to the
owner of the vessel a value greater than that which may correspond to
him in said adjudication and distribution, based upon the value of the
vessel in its actual condition, according to a statement of experts and
the rules for assessment thereof found in Nos. 6 and 7 of said article
854, from which it is necessarily inferred that it is notoriously
unjust,—because the law does not authorize it and it would be a
violation of its positive provisions—to compel the owner of the vessel,
by the mere fact of having put a greater capital in the undertaking, to
pay to the shippers the quota which corresponds to each of them which,
in this case, according to the majority opinion, is that which should
correspond, without a previous liquidation, to the plaintiff, Standard
Oil Company, saving to him, however, the right afterwards to bring
action or proceed against the other shippers, as expressed in the same
decision.’ In short, it would amount to absolutely ignoring the
provisions of the law, which are so clear, express, and positive with
respect not only to the adjustment, liquidation, and distribution of
the gross average, but also to the procedure for effecting the same and
the rights and obligations of those who should contribute to the
average. And it is very clear that error has been committed, because in
the same decision, two paragraphs before that in which the theory
already discussed is made, it is stated that there has been “a
misconception of the true import of the provisions relating to the
adjustment and liquidation of general average,” in arguing that the
right of action should be “against the captain, who has been delinquent
in performing the duty which the law imposes on him,” for “clearly,”
says the same decision, “those provisions are intended to supply the
shipowner, acting of course in the person of the captain, with a means
whereby he may escape bearing the entire burden of the loss and may
distribute it among all the persons who ought to participate in sharing
it; but the making of the liquidation is not a condition precedent to
the liability of the shipowner to the shipper whose property has been
jettisoned.”

As is clearly seen, what has just been stated gives us to understand
that the owner of the vessel must suffer all the loss in case of gross
average, and that the provisions relating to the adjustment,
liquidation, and distribution thereof are for the purpose of furnishing
him the means for evading and enabling himself to distribute it between
the persons who should participate in the average. This is erroneous,
because these provisions, which intentionally are extensively mentioned
in this opinion, do not have that object, for the reason that the
shipowner is not the person who should suffer all the loss in case of
gross average, but it should be partitioned and distributed between the
shipowner or agent and the shippers, in proportion to their interests
and the respective value of the cargo and vessel, which should be fixed
according to article 850 and the rules for their assessment, stated in
article 854 previously cited, after the liquidation and approval
thereof, and after hearing the interested parties or their
representatives; and all of these proceedings would surely be useless
and unnecessary if the shipowner or the agent should have to suffer all
loss but may afterwards distribute it among those participants therein,
or, what is the same thing, if he should be compelled by law to pay the
total value of the average and then partition it among the shippers or
owners of the cargo, as is maintained in said decision. And there is no
doubt that this is what is maintained in the decision, as the basis of
the pronouncements made therein, because, as already stated, in the
paragraph now under discussion, it is clearly stated that the
liquidation is not a condition precedent to the enforcement of the
liability of the shipowner to the shipper, whose goods may have been
jettisoned. And this is not what the law says just as it does not say
that the shipowner shall be liable to the shipper or owner of the
goods, but that, on the contrary, it says that the shipowner or agent
as well as the shippers may demand liquidation from the captain and
institute against him the corresponding action to recover indemnity,
that is, that he has the same right as the shippers to demand
liquidation from the captain and, in default thereof, to recover
indemnification, from which it is clearly inferred that the liquidation
is a condition precedent, not to the liability of the shipowner to the
shipper whose goods may have been jettisoned, as stated in the decision
in question, but to the partition which must be made between the agent
or shipowner and the shippers of the respective amount of the average.
This partition, and not that the shipowner should suffer all loss but
may afterwards evade and distribute it among all persons who should
share in the average, is the real interpretation of the provisions to
which reference is made in the same decision.

Neither is it true that, as stated in said decision, the shipowner
has, through the captain, the complete and exclusive control of the
crew and the sailing of the vessel, as well as of the destination of
the cargo at the end of the voyage, and that, for this reason, the
principal liability for the payment of the gross average must fall upon
the shipowner.

That he does not have the complete and exclusive control of the crew
is shown, among other provisions of the same Code of Commerce, by the
following articles: First, article 610, according to which, among
others, it is an inherent power in the captain to appoint or make
contracts with the crew in the absence of the agent and to propose said
crew if said agent be present, but without any right on the part of the
latter to employ any individual against the captain’s express refusal.
This provision necessarily implies the absolute power of the captain to
take on and contract the crew, and article 634 confirms it, according
to which the captain may make up his crew with the number he may
consider advisable, taking on resident foreigners, in the absence of
nationals, their number not to exceed one-fifth of the total crew, and
may even, with the consent of the consul or marine authorities,
complete his crew with foreigners in foreign ports if he should not
find sufficient number of nationals, the captain being obliged to
execute the contract with said members of the crew and others who
compose the complement of the vessel; and finally, article 637 which
empowers the captain, for sufficient cause, to discharge a sailor
during the time of his contract and to refuse, before setting out on a
voyage without giving any reason whatever, to permit a sailor he may
have engaged from going on board, in which case he will be obliged to
pay him his wages as if he had rendered services, this indemnity to be
paid from the funds of the vessel only if the captain had acted for
reasons of prudence and in the interests of safety and good service of
the vessel; but, should this not be the case, says said article, it
shall be paid by the captain personally. And, if in all that has just
been stated the captain may act independently, it is obvious that the
owner of the vessel or the agent does not have, through the captain,
complete and exclusive control of the crew. In short, the captain
directly exercises exclusively personal powers with respect to the crew
and, for this reason, he is personally and particularly responsible for
his acts, except in the only case already mentioned, in which he may
have acted for the benefit of the vessel.

Another power inherent in the position of captain, according to
article 610, is that of directing the vessel to the port of its
destination, according to the instructions he may have received from
the agent, but from this it cannot be inferred that the shipowner or
agent has, through the captain, complete and exclusive control of the
navigation of the vessel, for the simple reason that the captain may
not obey said instructions and may act freely adjusting his decisions
according to the circumstances of each case, as would occur in the case
of risks/ damages, and accidents which we have previously discussed,
cases in which the law imposes upon the captain the obligations to
which titles 4 and 5 of Book 3 refer and indicates those cases which we
have heretofore minutely discussed, in some of which he is personally
responsible, in others the agent or shipowner, or the latter jointly
with the captain, and still in others, in which the agent is not
responsible but only the captain.

Nor is it true that the shipowner, through the captain, has the
complete and exclusive control of the destination of the cargo at the
end of the voyage, for article 619 says textually that the captain
shall be liable for the cargo from the time it is turned over to him at
the dock, or afloat alongside the ship, at the port of loading, until
he delivers it on the shore or on the discharging wharf, of the port of
unloading, unless the contrary has been expressly agreed upon, and
that, according to article 620, he is not liable for the damages caused
to the vessel or to the cargo by reason of force majeure, and
article 625 adds that the captain, under his personal liability, as
soon as he arrives at the port of destination, upon obtaining the
necessary permission from the health and customs officers and
fulfilling the other formalities required by the regulations of the
administration, shall turn over the cargo, without any defalcation, to
the consignees and, in a proper case, the vessel, rigging, and freights
to the agent. And if the captain is personally responsible, according
to the clear and positive text of said article, for the delivery of the
cargo to the consignees and, of the vessel, rigging, and freight, to
the agent or shipowner, it is clear that the latter does not have
complete and exclusive control of the destination of the cargo at the
end of the voyage, because the obligation to deliver is a personal
obligation of the captain, and the agent or shipowner, just as any of
the consignees, may demand said liability with respect to the vessel,
rigging, and freight from the captain. And that responsibility of the
captain cannot be confused with the provision contained in article 618
of the same Code in favor of the agent, and that of the latter in favor
of third persons who may have contracted with him, because in said
article 618 are specifically mentioned the cases of responsibility to
which the same article refers, and the responsibility of the captain
from the moment the cargo is delivered to him until its unloading is
specially declared in article 619 and even more particularly in article
625 which says that said responsibility is a personal responsibility of
the captain.

It cannot, therefore, be inferred from all the provisions of the
Code, that the evident intention thereof is to impose the principal
responsibility upon the shipowner, as stated in the decision of the
majority; and, if the law is to be complied with, it is useless effort
to show its truth, by invoking the general provisions of the Code of
Commerce, which govern the relations between the captain and the
shipowner or the agent and those of one or the other or both with third
persons who may have contracted with either of them, or by invoking
those which deal with gross averages, as one of the damages and
accidents oJ maritime commerce, because, in the first, there is no
declaration expressly made upon the subject, and, in the second, what
is established and declared is precisely the contrary, for the
shipowner or agent has, just as the shippers, the right of action
against the captain to enforce his responsibility and to be indemnified
by him for the damages occasioned to them by reason of the failure of
the captain to comply with the obligations imposed upon him by law with
respect to the adjustment, liquidation, and distribution of the
average, and with respect to the disposition and delivery of the goods
saved to the shippers, before the payment by the latter of their
aliquot part in the partition of the average, or without their having
filed a sufficient bond to answer for the cargo, for the reason that,
according to article 619, he is responsible for the cargo from the
moment he takes charge thereof at the port of loading until its
delivery at the port of unloading and, according to article 625, he is,
under his personal liability, obliged to deliver the cargo, without
defalcation, to the consignees or shippers and, in the proper case, the
vessel, rigging, and freight to the agent upon the arrival at the port
of destination. This shows, in relation to the provisions of articles
866 and 868, already cited, that the captain of the vessel should be
personally liable to the owners of the goods averaged for the damages
which were incurred by them, by reason of his delay or negligence in
requiring a bond of the shippers before delivery to them of the goods
saved,—this supposing that they are obliged to do so,—instead of
proceeding to the adjustment, liquidation, and distribution of the
gross average, inasmuch as the purpose of the law is to exact said
personal responsibility for the due delivery to the consignees or
shippers of the cargo.

The plaintiff, therefore, should have brought said action, if he had
any, for the recovery of the amount claimed in the complaint, not
against the defendant, owner of the vessel Batangueno, but
against the captain thereof, and said defendant cannot and should not
be sentenced to pay to the plaintiff the sum stated in the decision of
this court which, with some modification as to the amount thereof,
affirms the judgment of the trial court; and there is more reason for
this assertion because that sum is, according to said decision, what
the plaintiff should receive in the partition and distribution of the
gross average in question and, yet, it does not appear that the
corresponding liquidation, and, consequently, the division and
distribution of said average, has already been made, as required by the
provisions of the Code of Commerce in the articles mentioned at the
beginning.

Regretting that I have to dissent from the respectable opinion of
the majority, I am of the opinion, for the reasons above stated, that
the judgment” appealed from should be reversed and the defendant should
be absolved from the complaint.