AUGUSTO LOPEZ, PLAINTIFF AND APPELLANT, VS. JUAN DURUELO ET AL., DEFENDANTS. ALBINO JISON, APPELLEE.

This action was instituted in the Court of First Instance of
Occidental Negros by Augusto Lopez, for the purpose of recovering damages for
personal injuries inflicted upon him by reason of the negligence of the
defendants, Juan Duruelo and Albino Jison. The defendants demurred to the
complaint, and the demurrer having been sustained, the plaintiff elected to
stand upon his complaint, which was accordingly dismissed; and the plaintiff
appealed.

The facts necessary to an understanding of the case as set out
in the complaint are briefly these: On February 10, 1927, the plaintiff, who is
a resident of the municipality of Silay, Occidental Negros, was desirous of
embarking upon the interisland steamer San Jacinto in order to go to Iloilo.
This boat was at the time in the anchoring-ground of the port of Silay, some
half a mile distant from the port. The plaintiff therefore embarked at the
landing in the motor boat Jison, which was then engaged in conveying passengers
and luggage back and forth from the landing to boats at anchor, and which was
owned and operated by the defendant Albino Jison, with Juan Duruelo as patron.
The engineer (maquinista) aboard on this trip was one Rodolin Duruelo, a boy of
only 16 years of age. He is alleged to have been a mere novice without
experience in the running of motor boats; and the day of the occurrence now in
contemplation is said to have been the third day of his apprenticeship in this
capacity. It is alleged that the Jison, upon this trip, was grossly
overladen, having aboard fourteen passengers, while its capacity was only for
eight or nine.

As the motor boat approached the San Jacinto in a perfectly
quiet sea, it came too near to the stern of the ship, and as the propeller of
the ship had not yet ceased to turn, the blades of the propeller struck the
motor boat and sank it at once. It is alleged in the complaint that the approach
of the Jison to this dangerous proximity with the propeller of the San Jacinto
was due to the fault, negligence and lack of skill of the defendant Juan
Duruelo, as patron of the Jison. As the Jison sank, the plaintiff was thrown
into the water against the propeller, and the revolving blades inflicted various
injuries upon him, consisting of a bruise in the breast, two serious fractures
of the bones of the left leg, and a compound fracture of the left femur. As a
consequence of these injuries the plaintiff was kept in bed in a hospital in the
City of Manila from the 28th of February until October 19 of the year 1927, or
approximately eight months. In the conclusion of his complaint the plaintiff
sets out the various items of damage which he suffered, amounting in all to
something more than P120,000. These damages he seeks to recover of the
defendants in this action.

As a general ground of demurrer it is
assigned by the defendants that the complaint does not show a right of action,
and in the course of the argument submitted with the demurrer attention is
directed to the fact that the complaint does not allege that a protest had been
presented by the plaintiff, within twenty-four hours after the occurrence, to
the competent authority at the port where the accident occurred. It is
accordingly insisted that, under article 835 of the Code of Commerce, the
plaintiff has shown no cause of action.

Assuming that the article of the Code of Commerce relied upon
states a condition precedent to the maintenance of an action in a case where
protest is required and that the making of protest must be alleged in the
complaint in order to show a good cause of action—an assumption that is
possibly without basis, for the reason that lack of protest in a case where
protest is necessary would seem to supply matter of defense proper to be set up
in the answer,—we nevertheless are of the opinion that protest was not
necessary in the case now before us. The article in question (835, Code of Com.)
is found in the section dealing with collisions, and the context shows the
collisions intended are collisions of sea-going vessels. Said article cannot be
applied to small boats engaged in river and bay traffic. The Third Book of the
Code of Commerce, dealing with Maritime Commerce, of which the section on
Collisions forms a part, was evidently intended to define the law relative to
merchant vessels and marine shipping; and, as appears from said Code, the
vessels intended in that Book are such as are run by masters having special
training, with the elaborate apparatus of crew and equipment indicated in the
Code. The word “vessel” (Spanish, “buque,” “nave“), used in the section referred
to was not intended to include all ships, craft or floating structures of every
kind without limitation, and the provisions of that section should not be held
to include minor craft engaged only in river and bay traffic. Vessels which are
licensed to engage in maritime commerce, or commerce by sea, whether in foreign
or coastwise trade, are no” doubt regulated by Book III of the Code of Commerce.
Other vessels of a minor nature not engaged in maritime commerce, such as river
boats and those carrying passengers from ship to shore, must be governed, as to
their liability to passengers, by the provisions of the Civil Code or other
appropriate special provisions of law.

This conclusion is substantiated by the writer Estasen who
makes comment upon the word “vessel” to the following effect:

“When the mercantile codes speak of vessels, they refer solely
and exclusively to merchant ships, as they do not include war ships, and
furthermore, they almost always refer to craft which are not accessory to
another as is the case of launches, lifeboats, etc. Moreover, the mercantile
laws, “in making use of the words ship, vessel, boat, embarkation, etc., refer
exclusively to those which are engaged in the transportation of passengers and
freight from one port to another or from one place to another; in a word, they
refer to merchant vessels and in no way can they or should they be understood as
referring to pleasure craft, yachts, pontoons, health service and harbor police
vessels, floating storehouses, warships or patrol vessels, coast guard vessels,
fishing vessels, towboats, and other craft destined to other uses, such as for
instance coast and geodetic survey, those engaged in scientific research and
exploration, craft engaged in the loading and discharge of vessels from same to
shore or docks, or in transhipment and those small craft which in harbors, along
shore, bays, inlets, coves and anchorages are engaged in transporting passengers
and baggage.” (Estasen, Der. Mer., vol. IV, p. 195.)

In Yu Con vs. Ipil (41 Phil., 770), this court held that a
small vessel used for the transportation of merchandise by sea and for the
making of voyages from one port to another of these Islands, equipped and
victualed for this purpose by its owner, is a vessel, within the purview of the
Code of Commerce, for the determination of the character and effect of the
relations created between the owners of the merchandise laden on it and its
owner. In the case before us the Jison, as we are informed in the complaint, was
propelled by a second-hand motor, originally used for a tractor plow; and it had
a capacity for only eight persons. The use to which it was being put was the
carrying of passengers and luggage between the landing at Silay and ships in the
harbor. This was not such a boat as is contemplated in article 835 of the Code
of Commerce, requiring protest in case of collision.

In Yu Con vs. Ipil, supra, the author of the opinion quotes a
passage from the treatise on Mercantile Law by Blanco. We now have before us the
latest edition of Blanco, and we reproduce here, in both Spanish and English,
not only the passage thus quoted but also the sentence immediately following
said passage; and this latter part of the quotation is quite pertinent to the
point now under consideration.

Says Blanco:

“Las palabras ‘nave’ y ‘buque’, en su sentido gramatical, se
aplican para designar cualquier clase de embarcaciones, grandes o pequenas,
mercantes o de guerra, significacion que no difiere esencialmente de la
juridica, con arreglo a la cual se consideran buques para los efectos del Codigo
y del Reglamento para la organizacion del Registro mercantile no solo las
embarcaciones destinadas a la navegacion de cabotaje o altura, sino tambien los
diques flotantes, pontones, dragas, ganguiles y cualquier otro aparato flotante
destinado a servicios de la industria o del comercio maritimo

“Aun cuando, conforme a este concepto legal, parece que todo
aparato flotante que sirve directamente para el trasporte de cosas o personas, o
que indirectamente se relacionen con esta industria, nan de sujetarse a los
preceptos del Codigo sobre propiedad, transmision, derechos, inscripciones,
etc., entendemos con el Sr. Benito (obra cit.) y asi ocurre en la practica, que
no son aplicables a las pequenas embarcaciones, que solo estan sujetas a los de
la administracion de marina para el servicio de los puertos o ejercicio de la
industria de la pesca.” (Blanco, Der. Mer., vol. II, pag. 22.)

“The words ‘ship’ (nave) and ‘vessel’ (buque), in their
grammatical sense, are applied to designate every kind of craft, large or small,
merchant vessels or war vessels, a signification which does not differ
essentially from its juridical meaning, according to which vessels for the
purposes of the Code and Regulations for the organization of the Mercantile
Registry, are considered not only, those engaged in navigation, whether
coastwise or on the high seas, but also floating docks, pontoons, dredges, scows
and any other floating apparatus destined for the service of the industry or
maritime commerce.

“Yet notwithstanding these principles from which it would seem
that any floating apparatus which serves directly for the transportation of
things or persons or which indirectly is related to this industry, ought to be
subjected to the principles of the Code with reference to ownership, transfer,
rights, registration, etc., we agree with Benito (obra cit.) and it so happens
in practice that they are not applicable to small craft which are only subject
to administrative (customs) regulations in the matter of port service and in the
fishing industry.”

We may add that the word “nave” in Spanish, which is used
interchangeably with “buque” in the Code of Commerce, means, according to the
Spanish-English Dictionary compiled by Edward R. Bensley and published at Paris
in the year 1896, “Ship, a vessel with decks and sails.” Particularly
significant in this definition is the use of the word “decks,” since a deck is
not a feature of the smallest types of water craft.

In this connection a most instructive case from a Federal Court
in the United States is that of The Mamie (5 Fed., 813), wherein it was held
that only vessels engaged in what is ordinarily known as maritime commerce are
within the provisions of law conferring limited liability on the owner in case
of maritime disaster. In the course of the opinion in that case the author cites
the analogous provisions in the laws of foreign maritime nations, especially the
provisions of the Commercial Code of France; and it is observed that the word
“vessel” in these codes is limited to ships and other sea-going vessels. “Its
provisions are not applicable,” said the court, “to vessels in inland
navigation, which are especially designated by the name of boats.” Quoting from
the French author Dufour (1 Droit Mer., 121), the writer of the opinion in the
case cited further says: “Thus, as a general rule, it appears to me clearly,
both by the letter and spirit of the law, that the provisions of the Second Book
of the Commercial Code [French] relate exclusively to maritime and not to
fluvial navigation; and that consequently the word ‘ship,’ when it is found in
these provisions, ought to be understood in the sense of a vessel serving the
purpose of maritime navigation or seagoing vessel, and not in the sense of a
vessel devoted to the navigation of rivers.”

It is therefore clear that a passenger on a boat like the
Jison, in the case before us, is not required to make protest as a condition
precedent to his right of action for the injury suffered by him in the collision
described in the complain. In other words, article 835 of the Code of Commerce
does not apply. But even if said provision had been considered applicable to the
case in hand, a fair interpretation of the allegations of the complaint
indicates, we think, that the injuries suffered by the plaintiff in this case
were of such a nature as to excuse protest; for, under article 836, it is
provided that want of protest cannot prejudice a person not in a condition to
make known his wishes. An individual who has suffered a compound fracture of the
femur and received other physical injuries sufficient to keep him in a hospital
for many months, cannot be supposed to have been in a condition to make protest
within twenty-four hours of  such occurrence. It follows that the demurrer in
this case was not well taken and should have been overruled.

In their brief in this court the attorneys for the defendant
have criticised the complaint for a general lack of certainty and precision in
more than one respect. However, we have read the document attentively and, in
our opinion, it states a good cause of action upon a civil liability arising
from tort under articles 1902 and 1903 of the Civil Code, and our attention has
not been drawn to any provision of law which would constitute an obstacle to the
maintenance of the action.

We have repeatedly called the attention of trial courts to the
general rule that a case should not be dismissed on demurrer when, under any
reasonable interpretation of the complaint, a cause of action can be made out;
and the fact that a complaint is inartificially drawn or in a certain degree
lacking in precision constitutes no sufficient reason for dismissing it. In
passing upon a demurrer, every reasonable intendment is to be taken in favor of
the pleader. In this connection it should be borne in mind that if a complaint
does not show a good cause of action, the action can be dismissed at a later
stage of the proceedings; and even where no objection has been previously made,
the point can be raised in the Supreme Court under section 93 of the Code of
Civil Procedure (Abiera vs. Orin, 8 Phil., 193). Little or no appreciable
prejudice to the defendant will therefore ordinarily result from overruling a
demurrer, and no harm is done to anyone by requiring the defendant to answer. On
the contrary, grave prejudice may result to a plaintiff from the erroneous
sustaining of a demurrer, because of the delay and even expense necessary to set
the matter right upon appeal.

The judgment appealed from is reversed, the demurrer overruled,
and the defendant is required to answer the complaint within five days after
notification of the return of this decision to the court of origin. So ordered,
with costs against the appellee.

Johnson, Malcolm, Villamor, and Romualdez, JJ., concur.
Ostrand, J., concurs in the result.