G.R. No. 17192. March 30, 1963
HONORIO M. BARRIOS, PLAINTIFF AND APPELLANT, VS. CALOS A. GO THONG & COMPANY, DEFENDANT AND APPELLEE.
BARRERA, J.:
Case No. 37219) dismissing with costs his case against defendant Carlos
A. Go Thong & Co., plaintiff Honorio M. Barrios, interposed the
present appeal. The facts of the case, as found by the trial court, are
briefly stated in its decision, to wiit:
“The plaintiff Honorio M. Barrios was, on May 1 and
2, 1958, captain and/or roaster of the MV Henry I’ of the William Lines
Incorporated, of Cebu City, plying between and to and from Cebu City
and other southern cities and ports, among which are. Dumaguete City,
f Zamboanga City, and Davao City, At about 8:00 o’clock on the
evening of May 1, 1958, plaintiff in his capacity as such, captain
and/or master of the aforesaid MV Henry I, received or otherwise
intercepted an S.O.S. distress signal by blinkers from the MV Alfredo,
owned and/or operated by the defendant Carlos A. Go Thong &
Company. Acting on and/or answering the S.O.S. call, the plaintiff
Honorio M. Barrios, also In his capacity as captain and/or master of
the MV Henry I, which was then sailing or navigating from Durnaguete
City, altered the course of said vessel, and steered and headed towards
the beckoning MV Don Alfredo, which plaintiff found to be in trouble,,
due to engine failtuf1 and the loss of her propeller, for which reason,
it was drifting slowly southward from Negros Island towards Borneo in
the open China Sea, at the mercy of a moderate easterly wind. At about
8:25 p.m, on the same day, May 1, 1958, the MV Henry, under the command
of the plaintiff, succeeded in getting near the MV Don Alfredo—in fact
as near as about seven meters from the latter ship—and with the consent
and knowledge of the captain and/or master of the MV Don Alfredo, the
plaintiff caused the latter vessel to be tied to, or well-secured and
connected with tow lines from the MV Henry I; and in that manner,
position and situation, the latter had the MV Don Alfredo in tow and
proceeded towards the direction of Dumaguete City, as evidenced by a
written, certificate to this effect executed and accomplished by the
Master, the Chief Engineer, the Chief Officer, and the Second Engineer
of the MV Don Alfredo, who were then on board the latter ship at the
time of the occurrence, stated above (Exh. A). At about 5:10 o’clock
the following morning.May 2, 1958, or after almost nine
hours during the night, with the MV Don Alfredo still in tow by the MV
Henry I, and while both vessels were approaching the vicinity of Apo
Island off Zamboanga town, Negros Oriental, the MV Lux, a sister ship
of the MV Don Alfredo, was sighted heading towards the direction of the
aforesaid two vessels, reaching then fifteen minutes later, or at about
5:25 o’clock on that same morning. Thereupon, at the request and
instance of the captain and/or master of the MV Don Alfredo, the
plaintiff caused the tow lines to be released, thereby also releasing
the MV Don Alfredo.“These are the main facts of .the present
case as to which plaintiff and defendant quite, agree with each other.
As was manifested in its memorandum presented in. this case on August
22, 1958, defendant thru counsel said that there is? indeed, .between
the parties, no dispute as, to the factual circumstances;, but counsel
adds that whsre plaintiff concludes that they establish an impending
sea peril from which salvage of a ship worth more than P100.000.00,
plus life and cargo was done, the defendant insists that the facts made
out no such case, but that what merely happened was only meve towage
tfreni which plaintiff, cannot claim .any compensation or remuneration
‘independently of the shipping company that owned the vessel commanded
by him.”
On the basis of these facts, the trial court (on April 5, 1960) dismissed the case, stating:
“Plaintiff basis his claim upon the provisions of the Salvage Law, Act No. 2616, * * *.
“In
accordance with the Salvage Law, a ship which is lost or abandoned at
sea is considered a derelict and, therefore, proper subject of salvage.
A ship In a desperate condition, where persons On board are incapable,
by reason of their mental and physical condition, of doing anything for
their own safety, is a quasi-derelict and may, likewise, fee the proper
subject of salvage. Was the MV Don Alfredo, oft May 1, 1958, when her
engine failed and, for that reason, was left drifting without power on
the high seas, a derelict or a quasi-derelict? In other worths, was it
a ship that was lost of abandoned, or in a desperate condition, which
could not be saved by reason of incapacity or incapacity of its crew or
the persons on board thereof? From nil appearances and from the
evidence extant in the records, there can be no doubt, for it seems
clear enough, that the MV Don Alfredo was not a lost ship, nor was it
abandoned. Can it be said that the said ship was in a desperate
condition, simply because of S.O.S. signals were sent from it?“From
the testimony of the captain of the MV Don AlfroJo, the engine failed
and the ship already lost power as early as 8:00 o’clock on the morning
of May 1, 1958; although it was helpless, in the sense that it could
not move, it did not drift too far from the place where it was, at the
time it had an engine failure. The weather, was fair—in fact, as
describe; by witnesses, the weather was clear and good. The waves were
small, too slight—there were only ripples on the sea, and the sea was
quite smcoth. And, during the night, while towing was going on, there
was a moonlight. Inasmuch aa the MV Don Alfredo was drifting towards
the open sea there was no danger of floundering. As testified to by one
of the witnesses, it would take days or even weeks before the ship
could as much as approach an island. And, even then, upon the least
indication, the anchor could always be weighed down, in order to
prevent the ship from striking against the rocks.“There was
no danger of the vessel capsizing, in view of the fairness of the sea,
and the condition of the weather, as described above. As a matter ot
fact, although the MV Don Alfredo had a motor launch, and two
lifeboats, there was no attempt, mush teas, was there occasion or
necessity, to lower anyone or all of them, in order to evacuate the
persons on board; nor.did the conditions then obtaining require an
order to jettison the cargo.“But, it is insisted for the
plaintiff that an S.O.S. or a distress signal was eent from aboard the
MV Don Alfredo, which was enough to establish the fact that it was
exposed to imminent peril at sea. It is admitted by the defendant that
such S.O.S. signal was, in fact, sent by blinkers. However, defendant’s
evidence shows that Captain Loresto cf the MV Don Alfiedo, did not
authorise the radio operator of the aforesaid ship to send an S.O.S. or
distress signal, for the ship was never in distress, nor was it exposed
to a great imminent peril of the sea. What the aforesaid Captain told
the radio operator to transmit was a general call; for, at any rate, a
message had been’sent to defendant’s office at Cebu City, which the
latter had acknowledged, by sending back a reply stating that help was
on the way. However, as explained by the said radio operator, inspite
of his efforts to send a general call by radio, he did not receive any
response. For this reason, the Captain instructed him to send the
general call by blinkers from the tteck of the ship but the call by
blinkers, which follows the dots and dashes method of sending
tressnges, couM not be easily understood by deck officers who
ordinarily are not radio operators. Hence, the only way by which the
attention of general officers on desk could be called, was to send an
S.O.S. signal which can be understood by all and sundry.“Be
it as it may, the evidence further shows that when the two ships were
already within hearing distance (barely seven meters) of each other,
there was a sustained conversation between Masters and complement of
the two vessels, by means of loud speakers and the radio; and, the
plaintiff must have learned of the exact nature and extent of the
disability from which the MV Don Alfredo had suffered—that is, that the
only trouble that the said vessel had developed was an engine failure,
due to the loss of its propellers.“It can thus be said that
the MV Don Alfredo was not in’a perilous condition wherein the members
of its crew would be incapable of doing anything to save passengers and
cargo, and, for this reason, it cannot be duly considered as a
quasi-derelict; hence, it was not the proper subject of salvage, and
the Salvage Law, Act No. 2616, is not applicable.“Plaintiff, likewise, predicates his action upon the provision of Article 2142 of the New Civil Code, which reads as follows:
‘Certain
lawful, voluntary and unilateral acts give rise to the juridical
relation of quasi-contract io the end that no one shall be unjustly
enriched or benefited at the expense of another.This does
not final clear application, to the case at bar, for the reason that it
is not the William Lines, Inc., owners of the MV Henry I which is
claiming for damages or remuneration, because it has waived all such
claims, but the plaintiff herein is the Captain,of the salvaging ship,
who has not shown that, in his voluntary act done towards and which
benefited the MV Don Alfredo, he had been unduly prejudiced by his
employers, the said William Lines Incorporated.“What about
equity? Does not equity permit plaintiff to recover for his services
rendered and sacrifices made? In this jurisdiction, equity may only be
taken into account when the circumstances warrant its application, and
in the absence of any provision of law governing the matter under
litigation. That is not so in the present case.“In view of
the foregoing, judgment is hereby rendered dismissing the case with
costs against the plaintiff; and inasmuch as the plaintiff has not been
found to have brought the case maliciously, the counterclaim of the
defendant is, likewise, dismissed, without pronouncement. as to costs.“So Ordered.”
The main issue to be resolved In this appeal is; whether under the
facts of the case, the service rendered by plaintiff to defendant
constituted “salvage” or “towage”, and if so, whether plaintiff may
recover from defendant compensation for such service.
The pertinent provision of the Salvage Law (Act No. 2616), provides:
“Section 1. When in case of shipwreck, the vessel or
its cargo shall be beyond the control of the crew, or shall have been
abandoned by them, and picked up and conveyed to a safe place by other
persons, the latter shall be entitled to a reward for the salvage.“Those
who, not being included in the above paragraph, assist in saving a
vessel or its cargo from shipwreck, shall be entitled to a like reward.”
According to this provision, those who assist in saving a vessel or
its cargo from shipwreck, shall be entitled to a reward (salvage).
“Salvage” has been defined as “the compensation allowed to persons by
whose assistance a ship or her cargo has been saved, in whole or in
part, from impending; peril on the sea, or in recovering such property
from actual loss, as in case of shipwreck, derelict, or recapture.”
(Blackwall vs. Saucelito Tug Company, 10 Wall. 1, 12, cited in Erlanger
& Galinger vs. Swedish East Asiatic Co., Ltd., 84 Phil. 178.) In
the Erlanger & Galinger ease, it was held that three elements are
necessary to a valid salvage claim, namely, (1) a marine peril, (2)
service voluntarily rendered when not required as an existing duty or
from a special contract, and (3) success in whole or in part, or that
the service rendered contributed to such success. [1]
Was there a marine peril, in the instant case, to justify a valid
salvage claim by plaintiff against defendant? Like( the trial court, we
do not think there was. It appears that although the defendant’s vessel
in question was, on the night of May 1, 1958, in a helpless condition
due to engine failure, it did not drift too far from the place where it
was. As found by .the court a qwo the weather wa$ fair, clear, and
good. The waves were small and too slight, so much so, that there were
only ripples on the sea, which was quite smooth. During the towing of
the vessel on the same night, there was moonlight. Although said vessel
was drifting towards the open sea, there was no danger of its
foundering or being stranded, as it was far from any island or rocks.
In case of danger of stranding, its anchor could be released, to
prevent such occurrence. There was no danger that defendant’s vessel
would sink in view of the smoothness of the sea and the, fairness of
the weather. That there was absence of danger is shown by the fact that
said vessel or its crew did not even find it necessary to lower its
launch and two motor boats, in order to evacuate its passengers aboard.
Neither, did they find occasion to jettison the vessel’s cargo as a.
safety measure. Neither the passengers nor the cargo were in danger of
perishing. All that the vessel’s crew members could not do was to move
the vessel on its own power. That did not make the vessel a
quasi-derelict, considering that even before the appellant extended the
help to the distress ship, a sister vessel was known to be on its way
to succor it.
If plaintiff’s service to defendant does not constitute “salvage”
within the purview of the Salvage Law, can it be considered as a
quasi-contract of “towage” created in the spirit of the new Civil Code?
The answer seems to incline in the affirmative; for in consenting to
plaintiff’s offer to tow the vessel, defendant (through, the captain of
its vessel MV Don Alfredo) thereby impliedly entered into a juridical
relation of “towage” with the owner of the vessel MV Henry I, captained
by plaintiff, the William Lines, Incorporated.
“Tug which put line aboard liberty ship which was
not in danger or peril but which had reduced its engine speed because
of hot grounds, and assisted ship over bar arid, thereafter, dropped
towline and stood by while ship proceeded to dock under own power, was
entitled, in absence of written agreement as to amount to be paid for
services, to payment for towage services, and not for salvage
services.” (Sauce, et al. vs. United States, et al., 107 F. Supp. 489.)
If the contract thus created, in this case, is one for towage, then
only the owner of the towing vessel, to the exclusion of the crew of
the said vessel, may be entitled to remuneration.
“It often becomes material too, for courts to draw a
distinct line between salvage and towage; for the reason that a reward
ought sometimes to be given to the crew of the salvage vessel and to
other participants in salvage services, and such reward should not be
given if the services were held to be merely towage.” (The Eebecca
Shepherd; 148 F. 731.)“The master and members of the crew of
a tug were not entitled to, participate in payment by liberty ship for
services rendered by tug which were towage services arid not salvage
services.” (Sause,. et al. vs. United States, et al., supra.)“The
distinction between salvage and towage is of importance to the crew of
the salvaging ship, for the following reasons: If the contract for
towage is in fact towage, then the crew does not have any interest or
rights in the remuneration pursuant to the contract. But if the owners
of the respective vessels are of a salvage nature, the crew of the
salvaging ship is entitled to salvage, and can look to the salved
vessel for its share.” ( I Norris, The Law of Seamen, See. 222.)
And, as the vessel-owner, William Lines, Incorporated, had expressly
waived its claim for compensation for the towage service rendered to
defendant, it is clear that plaintiff, whose right if at all depends
upon and not separate from the interest of his .employer, is not
entitled to payment for such towage service.
Neither may plaintiff invoke equity in support of his claim for
compensation against defendant. There being an express provision of law
(Art. 2142, Civil Code) applicable to the relationship’ created in this
case, that is, that of a quasi-contract of towage where the crew ia not
entitled to compensation separate from that of the vessel, there is no
occasion to resort to equitable considerations.
Wherefore, finding no reversible error in the decision of the court
a quo appealed from, the’ same is hereby affirmed in all respects, with
costs against the plaintiff-appellant. So ordered.
Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regain, and Makalintal, JJ., concur.
[1] Citing the case of The Mayflower vs. The Sabine, 101 U.S. S84.