KUI PAI & CO., PLAINTIFF AND APPELLANT, VS. DOLLAR STEAMSHIP LINE, DEFENDANT AND APPELLEE.

In the very nature of things, the American Consul at Hongkong could
not and did not personally examine the specific contents of the six
boxes or cases alleged to have been shipped from Hongkong by Mee Hing
Chan, and by the same token and for the same reason, the defendant did
not make any examination or have any personal knowledge of the contents
of the six boxes of which it took delivery in Hongkong. Hence, the real
question here is whether or not the defendant delivered to the
plaintiff in Manila the six identical boxes or cases which were
delivered on board its ship in Hongkong.

Counsel for the appellant cites and relies upon the following legal propositions:

“The liability of the carrier shall begin from the
moment he receives the merchandise, in person or through a person
entrusted thereto in the place indicated for their reception. (Art.
355, Code of Commerce.)

“* * * the carrier shall be obliged to
deliver the goods transported in the same condition in which, according
to the bill of lading, they were at the time of their receipt, without
any detriment or impairment, and should he not do so, he shall be
obliged to pay the value of the goods not delivered at the point where
they should have been and at the time the delivery should have taken
place.

* * * (Art, 363, Code of Commerce).

” * * *
Consequently the law, proceeding on the moral principle of prudent
prevention, cut off from the carrier all temptation of pecuniary gain
and made him absolutely liable with the exception of causes for which
he could not be supposed to be responsible—namely the act of God or the
public enemy. (4 R. C. L., 700.)

“The relation of carrier
endures from the shipment of the goods until their arrival at their
destination, and continues after the arrival of the goods at their
destination until they are ready to be delivered- at the usual place of
delivery, and the owner or consignee has a reasonable opportunity,
during the hours when such goods are usually delivered there, of
examining them sufficiently to judge from their outward appearance of
their identity, and whether they are in proper condition, and to take
them away. (4 R. C. L., 548.)

“Art.
1602, Civil Code. Carriers are also liable for the loss of and damage
to the things which they receive, unless they prove that the loss or
damage arose from a fortuitous event or force majeure.”

That is a correct statement of defendant’s liability as a carrier.
But assuming that to be the law,A the question here is one of fact as
to what the defendant did receive in Hongkong, and what it should
deliver to the plaintiff in Manila.

The trial court who saw and heard the witnesses testify in a well
written opinion found all of the material facts for the defendant. It
is conceded that six boxes or cases consigned to the plaintiff were
delivered to the defendant in Hongkong to be shipped to Manila. It is
also conceded that at the time of delivery, the boxes were measured as
to their width, length and depth, and that the boxes which the
defendant delivered and tendered to the plaintiff are each exact in
their respective measurements with those which the defendant received
on board of its ship in Hongkong, and the trial court found as a fact
that the six boxes were originally marked “K. P.,” and that the marks
on two of them have been changed, and upon that point, said:

“The evidence is also clear and convincing that
these two identical cases KP 3 and 4 were delivered from hold No. 9 of
the ship on to pier No. 7 at Manila. These two cases were offered in
evidence by defendants and are marked Exhibits 1 and 2, respectively.
On each of said exhibits the marks appear on three sides of each case;
thus there are six separate and distinct marks on these two exhibits.
The marks are in green ink or paint. Without the aid of a magnifying
glass but by ocular inspection, it is perfectly clear and indisputable
that the six letters K have been changed or altered to R and the
letters P to B and that the numeral 1 has been placed in front of the
numerals 3 and 4 so as to give them the appearance of 13 and 14, but it
is to be observed that the numeral 1 is omitted from one of the three
sides of each of said Exhibits 1 and 2. The changes or alterations in
the lettering and the addition of the numeral 1 are very crude, to say
the least. The ink or paint used in making the changes is not of the
same shade of green as the original letters and numerals. No one can
possibly be deceived by the changes or alterations and additions. The
court is convinced that the original markings on these two Exhibits 1
and 2, formerly read KP, 3 and 4 and that they were changed, altered
and added to so as to now read RB 13 and 14, except, as previously
observed, that the numeral 1 is omitted on one side of each of said
cases.”

It also found that such Exhibits 1 and 2 were opened in the presence
of the court, and that their contents were “found to be Chinese
cigarette papers of very little value.” The evidence is also conclusive
that, including the two boxes in. question, the number of cases or
articles as shown by the ship’s invoice is exact and correct, and that
if two boxes are not included, the cargo of the ship would be short two
boxes. It is very apparent, as the trial court says, that the marks on
the two boxes in question were changed, and it is also significant that
after a diligent search, no one has ever appeared or claimed to be the
owner of those two boxes.

It is a matter of common knowledge that there is no port of call
between Hongkong and Manila, and it appears from the records, which are
confirmed by the testimony of the checker at the time the ship was
unloaded and that of the Manila Terminal Company, that the cargo of the
ship exactly tallies with the bills of lading which were issued by the
defendant, as to the number of pieces, boxes or cases in the cargo.
That is to say, that the number of pieces of cargo on board the ship,
which were to be delivered at Manila, including the two boxes in
question, correspond exactly with the number of pieces or cargo found
on the ship at the time it was unloaded in Manila. The evidence for the
plaintiff shows that the six boxes were placed in hold No. 9 of the
ship in Hongkong, and that upon its arrival in Manila, six boxes of the
same cubical contents were taken out of that same hold. Hence, it must
follow that, in the very nature of things, the contents of two of those
boxes could not be taken out and replaced with Chinese cigarette papers
after the defendant’s ship left Hongkong and while in transit to
Manila, and that the short change artist must have appeared on the
scene in Hongkong. Much more could be said, but suffice it to say that
the findings of the lower court are well sustained by the evidence, and
that we are clearly of the opinion that the six cases placed on board
the defendant’s ship in Hongkong, consigned to plaintiff, were actually
tendered and delivered to the plaintiff in Manila in the same condition
as when received, and with the identical contents which they had in
them when placed in Hold No. 9 aboard the defendant’s ship in Hongkong.

The judgment of the lower court is affirmed, with costs. So ordered.

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