JAIME C. TIAMPO, PLAINTIFF AND APPELLANT, VS. EUSEBIO VILLANUEVA AND JULIANA MELLIZA, DEFENDANTS AND APPELLEES. MACONDRAY & CO., INC., DEFENDANT AND APPELLANT.

Plaintiff, as the owner of the lorcha Cataluña, brought suit in the Court of First Instance of Iloilo against Eusebio Villanueva and Juliana Melliza as owners of the launch Fredy, and defendant, Macondray & Co., Inc., as general agent for the motorship Tai Yin.

On December 6, 1930 there was a collision between the Tai Yin and the lorcha Cataluña, while being towed by the Fredy, as a result of which the Cataluña
was sunk and became a total loss. After trial, in the Court of First
Instance, plaintiff was given judgment against Macondray & Co.,
Inc., for seven thousand pesos (P7,000). Plaintiff had claimed ten
thousand pesos (P10,000), and appealed from the amount of the judgment.
Macondray & Co., Inc., likewise appealed on the ground that the
motorship Tai Yin was not at fault.

Due to the
death of the stenographer it was impossible to secure a transcript of
the stenographic notes, and to avoid the necessity of a new trial, the
attorneys entered into a stipulation to the effect that the case should
be submitted to this court on Exhibit D. Exhibit D is an administrative
proceeding by the port authorities on the protests that were duly filed
immediately after the collision, and contains a transcript of the
testimony taken by a board of investigation appointed by the Acting
Collector of Customs of Iloilo. While normally the report of a marine
board is not admissible in evidence (Ortiz vs. Compañia Maritima, 7
Phil., 507), the stipulation between the parties submits this report
for our consideration. When the administrative papers were forwarded to
the Collector of Customs he appointed a board of review, and in their
report, they stated:

“In the morning of the accident in question and before the occurrence thereof, the m/s Tai Yin
was anchored in the stream, Iloilo Harbor (Guimaras Strait) near the
mouth of the Iloilo River. To the north of said motorship’s anchorage
was the s/s Diana Dollar and still farther north was the s/s Silver Sandal, both anchored. The s/s Takaoka Maru was anchored away to starboard near Guimaras Island. Sometime after 5 a. m., m/s Tai Yin hove up anchor and started at slow speed ahead towards the North Entrance of Guimaras Strait passing between the s/s Diana Dollar
and the shore under the direction of Port Pilot Ramon Garriz. The
motorship’s captain and second officer, and Captain Rafael Xaudaro, a
local coastwise pilot, were on the bridge with said pilot. At that
juncture, the lorcha or sail vessel Cataluña was sighted off
the motorship’s port bow with sails set apparently southward bound,
heading on a course opposite to but clear off the motorship’s. When
they were at a distance of about 500 or 600 feet apart, the Cataluña was taken in tow by launch Fredy and both tug and tow, without giving any warning signal, swung to port across the bow of the m/s Tai Yin towards the s/s Takaoka Maru.
As said maneuver was made when the tug and tow in question were at such
distance from the said motorship that collision was imminent, the said
motorship gave one blast signifying her course to starboard. The launch
Fredy, however, disregarded such signal and continued on her course to port whereupon the m/s Tai Yin
promptly reversed her engines at full speed giving the regulation
signal of three blasts. Notwithstanding said maneuver, however, the
port bow of the m/s Tai Yin struck the starboard side of lorcha Cataluña causing the latter to sink.

“There is no question that when the m/s Tai Yin and lorcha Cataluña
came in sight of each other when both were underway, they were
following opposite courses that ran clear off each other. Under the
circumstances both vessels should have maintained their respective
courses until one or the other or both had passed clear off each other.
The maneuver of launch Fredy to port across the bow of the
oncoming motorship was against all rules of seamanship and was a gross
violation of the Rules of the Road as it unnecessarily provoked and
thereby caused the present collision. When the launch Fredy initiated and continued her maneuver to port, the m/s Tai Yin, with the shore close to her port side and the steamer Diana Dollar and Silver Sandal
off her starboard side and bow, and in view of her tonnage and draft,
could not have possibly executed any safe and reasonable maneuver to
avoid collision, or at least minimize the effects thereof, other than
to reverse her engines at full speed which she did promptly. Such
temerary maneuver of launch Fredy across the bow of the m/s Tai Yin
may be attributed to no cause other than to the negligence of her
patron who either failed to notice the presence and approach of the m/s
Tai Yin, as may be deduced from his testimony, or failed to
sense the extreme danger of his act, evidently believing, in his
manifest ignorance of navigation rules, that he had the right of way
and expecting the much larger and more cumbersome vessel to keep clear.

“In view of all the foregoing, the undersigned find the patron of the launch Fredy responsible for the present collision between her tow, lorcha Cataluña and m/s Tai Yin.”

After a careful review of the evidence, we are of the opinion that the
board of review made as clear a statement of the facts as it is
possible to make from the meager evidence of record.

The
conclusions of the board of review, from the facts as found by them,
are in accord with the decisions of this court. The general rule is
well stated in Verzosa and Ruiz, Rementeria y Cia. vs. Lim and Siy Cong
Bieng & Co. (45 Phil, 416, 421).

“* * *
Among rules applicable to navigation none is better founded on reason
and experience than that which requires the navigating officers of any
vessel to assume that an approaching vessel will observe the
regulations prescribed for navigation (G. Urrutia & Co. vs. Baco
River Plantation Co., 26 Phil., 632, 637). Any other rule would
introduce guess work into the control of ships and produce uncertainty
in the operation of the regulations.”

There was no valid reason for the Fredy
not to have kept the original course until both vessels were clear of
one another, and the contention of plaintiff-appellant that paragraph
163 of the Philippine Marine Regulations, to the effect that
steam-vessels towing, have the right of way over steam-vessels not
towing, is controlling, is incorrect. Such a rule is subject to
reasonable limitations and this court has held in the case of the
Marine Trading Co. vs. Government of the Philippine Islands (39 Phil.,
29), that the vessel with a tow is not, by that fact, authorized to
usurp the entire channel.

The case of The Alabama
(126 Fed., 332), is very much in point. In that case a tug with tow by
an improper maneuver, without a clear understanding with the other
vessel, and in violation of the rules of navigation, caused a collision
with a steamer, unencumbered and having full control of its movements.
The tug was held solely to blame.

Holding that the Tai Yin
was free from blame, the judgment of the lower court against Macondray
& Co., Inc., as defendant, must be set aside and
defendant-appellant be absolved of all liability due to the collision.
The judgment of the Court of First Instance of Iloilo is, therefore,
reversed with costs against the plaintiff-appellant.

In
accordance with the stipulation of the parties, this action is without
prejudice of the right of the plaintiff-appellant to have a new trial
in the Court of First Instance of Iloilo against Eusebio Villanueva and
Juliana Melliza, defendants-appellees. So ordered.

Street, Villamor, Ostrand, Villa-Real, Abad Santos, Vickers, Imperial, and Butte, JJ., concur.