AMANDO MIRASOL, PLAINTIFF AND APPELLANT, VS. THE ROBERT DOLLAR CO., DEFENDANT AND APPELLANT.

Plaintiff’s contention that he is entitled to P700 for his
Encyclopedia Britannica is not tenable. The evidence shows that with
the P400 which the court allowed, he could buy a new set which would
contain all of the material and subject matter of the one which he
lost. Plaintiff’s third assignment of error is well taken, as under all
of the authorities, he is entitled to legal interest from the date of
his judgment rendered in the lower court and not the date when it
becomes final. The lower court found that plaintiff’s damage was
P2,080, and that finding is sustained by the evidence. There was a
total loss of one case and a partial loss of the other, and in the very
nature of things, plaintiff could not prove his loss in any other way
or manner than he did prove it, and the trial court who heard him
testify must have been convinced of the truth of his testimony.

There is no claim or pretense that the plaintiff signed the bill of
lading or that he knew of its contents at the time it was issued. In
that situation he was not legally bound by the clause which purports to
limit defendant’s liability. That question was squarely met and decided
by this court in bane in Juan Ysmael & Co., vs. Gabino Barretto & Co. (51 Phil., 90; see numerous authorities there cited).

Among such authorities is the case of The Kensington decided
by the Supreme Court of the United States January 6, 1902 (46 Law. ed.,
190), in which the opinion was written by the late Chief Justice White,
the syllabus of which is as follows:

“1. Restrictions of the liability of a steamship
company for its own negligence or failure of duty toward a passenger,
being against the public policy enforced by the courts of the United
States, will not be upheld, though the ticket was issued and accepted
in a foreign country and contained a condition making it subject to the
law thereof, which sustain such stipulations.

“2. A
stipulation in a steamship passenger’s ticket, which compels him to
value his baggage, at a certain sum, far less than it is worth, or, in
order to have a higher value put upon it, to subject it to the
provisions of the Harter Act, by which the carrier would be exempted
from all liability therefor from errors in navigation or management of
the vessel or other negligence, is unreasonable and in conflict with
public policy.

“3. An arbitrary limitation of 250 francs for
the baggage of any steamship passenger, unaccompanied by any right to
increase the amount by adequate and reasonable proportional payment, is
void as against public policy.”

Both the facts upon which it is based and the legal principles involved are square in point in this case.

The defendant having received the two boxes in good condition, its
legal duty was to deliver them to the plaintiff in the same condition
in which it received them. From the time of their delivery to the
defendant in New York until they were delivered to the plaintiff in
Manila, the boxes were under the control and supervision of the
defendant and beyond the control of the plaintiff. The defendant having
admitted that the boxes were damaged while in transit and in its
possession, the burden of proof then shifted, and it devolved upon the
defendant to both allege and prove that the damage was caused by reason
of some fact which exempted it from liability. As to how the boxes were
damaged, when or where, was a matter peculiarly and exclusively within
the knowledge of the defendant, and in the very nature of things could
not be in the knowledge of the plaintiff. To require the plaintiff to
prove as to when and how the damage was caused would force him to- call
and rely upon the employees of the defendant’s ship, which in legal
effect would be to say that he could not recover any damage for any
reason. That is not the law.

Shippers who are forced to ship goods on an ocean liner or any other
ship have some legal rights, and when goods are delivered on board ship
in good order and condition, and the shipowner delivers them to the
shipper in bad order and condition, it then devolves upon the shipowner
to both allege and prove that the goods were damaged by reason of some
fact which legally exempts him from liability; otherwise, the shipper
would be left without any redress, no matter what may have caused the
damage.

The lower court in its opinion says:

“The defendant has not even attempted to prove that
the two cases were wet with sea water by fortuitous event, force
majeure or nature and defect of the things themselves. Consequently, it
must be presumed that’ it was by causes entirely distinct and in no
manner imputable to the plaintiff, and of which the steamer President Garfield or any of its crew could not have been entirely unaware.”

And the evidence for the defendant shows that the damage was largely
caused by “sea water” from which it contends that it is exempt under
the provisions of its bill of lading and the provisions of article 361
of the Code of Commerce, which is as follows:

“Merchandise shall be transported at the risk and venture of the shipper, if the contrary was not expressly stipulated.

“Therefore,
all damages and impairment suffered by the goods during the
transportation, by reason of accident, force majeure, or by virtue of
the nature or defect of the articles, shall be for the account and risk
of the shipper.

“The proof of these accidents is incumbent on the carrier.”

In the final analysis, the cases were received by the defendant in
New York in good order and condition, and when they arrived in Manila,
they were in bad condition, and one was a total loss. The fact that the
cases were damaged by “sea water,” standing alone and within itself, is
not evidence that they were damaged by force majeure or for a cause
beyond the defendant’s control. The words “perils of the sea,” as
stated in defendant’s brief apply to “all kinds of marine casualties,
such as shipwreck, foundering, stranding,” and among other things, it
is said: “Tempest, rocks, shoals, icebergs and other obstacles are
within the expression,” and “where the peril is the; proximate cause of
the loss, the shipowner is excused.” “Something fortuitous and out of
the ordinary course is involved in both words ‘peril’ or ‘accident.'”

Defendant also cites and relies on the case of Government of the Philippine Islands vs.
Ynchausti & Company (40 Phil., 219), but it appears from a reading
of that case that the facts are very different and, hence, it is not in
point. In the instant case, there is no claim or pretense that the two
cases were not in good order when received on board the ship, and it is
admitted that they were in bad order on their arrival at Manila. Hence,
they must have been damaged in transit. In the very nature of things,
if they were damaged by reason of a tempest, rocks, icebergs,
foundering, stranding or the perils of the sea, that would be a matter
exclusively within the knowledge of the officers of defendant’s ship,
and in the very nature of things would not be within plaintiff’s
knowledge, and upon all of such questions, there is a failure of proof.

The judgment of the lower court will be modified, so as to give the
plaintiff legal interest on the amount of his judgment from the date of
its rendition in the lower court, and in all other respects affirmed,
with costs. So ordered.

Johnson, Malcolm, Ostrand, Romualdez, and Villa-Real, JJ., concur.

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DISSENTING

STREET, J.:

I gave a hesitating adherence to the decision of this case in
division, and upon further reflection, I am now constrained to record
my belief that the decision is in part erroneous. I agree with the
court that the defendant is liable to the plaintiff, but I think that
its liability is limited, under clause 13, printed on the back of the
bill of lading, to the amount of 250 dollars for each of the two boxes
of books comprising this consignment. While the law does not permit a
carrier gratuitously to exempt itself from liability for the negligence
of its servants, it can effectually do so for a valuable consideration;
and where freight rates are adjusted upon the basis of a reasonable
limited value per package, where a higher value is not declared by the
shipper, the limitation as to the value is binding. This court in two
well considered decisions has heretofore upheld a limitation of exactly
the character of that indicated in clause 13 (H. E. Heacock Co. vs. Macondray & Co., 42 Phil., 205; Freixas & Co, vs. Pacific Mail Steamship Co., 42 Phil., 198); and I am unable to see any sufficient reason for ignoring those decisions.