THE AMERICAN INSURANCE COMPANY, PLAINTIFF-APPELLANT, VS. COMPAÑIA MARITIMA, ET AL., DEFENDANTS. MACONDRAY & CO., INC., DEFENDANT-APPELLEE.

Appeal from the order of the Court of First Instance of Manila
(Civil Case No. 55056) dismissing, on the ground of prescription, the amended
complaint of plaintiff-appellant, The American Insurance Company, as against
alternative defendant Macondray & Co., Inc.

On August 11, 1962, a certain cargo insured with plaintiff corporation was shipped in New York, U.S. A. aboard
“M/S TOREADOR”, of
which the general agent in the Philippines is appellee Macondray & Co., Inc. (hereinafter referred to as Macondray).  The cargo,
with an invoice value of $3,539.61 CIF Cebu, was
consigned to the order of the importer Atlas Consolidated Mining and
Development Corporation.

Inasmuch as the final port of call of the “M/S TOREADOR” was Manila, the carrier, in accepting the cargo at the point of shipment, agreed to transship the same, after its discharge in Manila, aboard an inter-island vessel to its destination in Cebu.

On September 18, 1962
the “M/S TOREADOR” arrived at
the port of Manila and on the same date discharged the
cargo in question.  Pursuant to the
arrangement the cargo was subsequently loaded aboard the “SS SIQUIJOR, an inter-island vessel.  The shipment was finally discharged in Cebu
on September 24, 1962.

When the consignee took delivery of the shipment it was found to be short of two (2) pieces of tractor
parts worth $2,834.88, or P11,063.12 at the exchange
rate of P3.9025.  Plaintiff paid the
insured value of the lost merchandise to the consignee.  To recover the said sum of P11,063.12 plaintiff, as subrogee of
the consignee’s rights, filed on September
24, 1963 a complaint against the Compañia
Maritima and the Visayan Cebu Terminal Co., Inc.
as alternative defendants.  The
former was sued as operator and owner of “SS SIQUIJOR” and the latter
as operator of the arrastre service at the port
of Cebu
charged with the care and custody of all cargo discharge there.

In view of Maritima’s allegation in its
answer that the lost merchandise had not actually been delivered to it,
plaintiff filed on November 6, 1964
a motion to admit its amended
complaint impleading Macondray
and Luzon Brokerage Corporation as additional defendants and elimina­ting the Visayan Cebu Terminal Co.,
Inc.  According to plaintiff, “the amended complaint is necessary in view of defendant Maritima’s assertion and records tending to show that the
lost merchandise was not delivered to it, contrary to Macondray’s
representation, even after the filing of the original complaint,
that the cargo was delivered to Maritima.”  The amended complaint was admitted on November
14, 1964.

On December 23, 1964 Macondray moved to
dismiss the amended complaint against it on the ground that plain­tiff’s action
had already prescribe under the provisions of the carriage of Goods by Sea Act* which provides in section 3 (6):

“In any event, the carrier and the ship shall be discharged from all
liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods is
all have been delivered:  x x x”

Macondray contended that since the
amended complaint in which it was impleaded for the
first time was filed only on November 6, 1964 and admitted on November 14,
1964, the period of one year had expired whether reckoned from one or the other
of the two dates, namely:  September 18,
1962, when the “M/S TOREADOR” arrived at the port of Manila and
discharged the cargo for transshipment to Cebu on
board the “SS SIQUIJOR”, and September 24, 1962 when the ship­ment finally
arrived in Cebu and was discharged the same day.

The motion to dismiss was granted and plaintiff interposed the
present appeal from the order of dismissal. 
Plaintiff avers that the one year prescriptive period provided for in
the Carriage of Goods by Sea Act does not apply in this case, which should be governed
by the statute of limitations in the Civil Code.  In support of this con­tention it is pointed
out that the cargo in question was transshipment cargo; that the discharge
thereof in Manila terminated the
obligation of Macondray as carrier; and that its
obligation to transship the cargo to Cebu
was merely that of a “forwarding agent” of the shipper.  Reliance is placed on Clause 11 of the bill
of lading which states:

“This carrier, in making arrangements for any transshipping or
forwarding vessel or means of transportation not operated by this carrier shall
be considered solely the forwarding agent of the shipper and without any
other responsibility.”

We do not see that the use of the term “forwarding agent of
the shipper” is decisive of the issue. 
According to paragraph 4 of the amended complaint the cargo was loaded
on board the “M/S TOREADOR” in New York,
“freight prepaid to Cebu
City . . . pursuant to the bill of
lading No. 13.” In other words, the action is based on the contract of
carriage up to the final port of destination, which was Cebu City,
for which the corresponding freight had been prepaid.  The following provisions of the bill of
lading are the ones directly in point:

“1. This bill of lading shall have effect subject to the provisions
of the Carriage of Goods by Sea Act of the United States of America, approved April 16, 1936, which
shall be deemed to be incorporated herein and nothing herein contained shall be deemed a surrender by the
Carrier of any of its rights or immunities or an increase of any of its
responsibilities or liabilities under said Act. 
The provisions stated in said Act (except as may be otherwise
specifically provided herein) shall govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are
in the custody of the Carrier.  x x x.

“19. In any event the Carrier and the ship shall be
discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of
the goods or the date when the goods should have been delivered. 
x x x“

The
transshipment of the cargo from
Manila to Cebu was not a separate transaction from that originally entered into by Macondray, as general agent for the “M/S TOREADOR.”
It was part
of Macondray’s obligation under the contract
of carriage and the fact that the transshipment was made via an inter-island vessel
did not operate to remove the transaction from the operation of the
Carriage of Goods by Sea Act.  (See Go Chang & Co., Inc. vs. Aboitiz & Co., Inc., 98 Phil. 179).

Wherefore, the order appealed from is hereby affirmed, with costs.

Concepcion, C.J., Reyes, Dizon, Zaldivar, Bengzon, Sanchez, Castro, Angeles, and Fernando, JJ., concur.

* Public Act No. 521 of the 74th Congress
of the U.S.
approved on April 16, 1936,
made applicable to all contracts for the carriage of goods by sea to and from Philippine
ports in foreign trade (sec. 1, Com. Act No. 65).