HEIRS OF AMPARO DELOS SANTOS, HEIRS OF ERNANIE DELOS SANTOS, HEIRS OF AMABELLA DELOS SANTOS, HEIRS OF LENNY DELOS SANTOS, HEIRS OF MELANY DELOS SANTOS, HEIRS OF TERESA PAMATIAN,…

This petition for review on certiorari seeks to set aside
the decision of the Court of Appeals in CA-G.R. No. 58118-R affirming the
decision in Civil Case No. 74593 of the then Court of First Instance (now
Regional Trial Court), Branch XI, Manila which dismissed the petitioners’ claim
for damages against Compania Maritima
for the injury to and death of the victims as a result of the sinking of M/V Mindoro on November 4, 1967.

The trial court found the antecedent facts to be as follows:

“This is a complaint originally filed on October 21, 1968 (p. 1, rec.) and amended on October
24, 1968 (p. 16 rec.) by the heirs of Delos Santos and others as pauper
litigants against the Compania Maritima,
for damages due to the death of several passengers as a result of the sinking
of the vessel of defendant, the M/V ‘Mindoro‘, on
November 4, 1967.

“There is no dispute in the record that the M/V ‘Mindoro‘ sailed from pier 8 North
Harbor, Manila,
on November 2, 1967 at
about 2:00 (should have been 6:00 p.m.) in the afternoon bound for New
Washington, Aklan, with many passengers aboard.  It appears that said vessel met typhoon ‘Welming‘ on the Sibuyan
Sea, Aklan, at about 5:00 in the morning of November 4, 1967 causing the death of many of its
passengers, although about 136 survived.

“Mauricio delos Santos declared that
on November 2, 1967 he accompanied his common-law wife, Amparo
delos Santos, and children, namely:  Romeo, Josie, Hernani,
who was 10 years old, Abella, 7 years old, Maria Lemia, 5 years old and Melany, 5
months old, to pier 8, North Harbor, Manila, to board the M/V ‘Mindoro‘ bound for Aklan.  It appears that Amparo
delos Santos
and the aforesaid children brought all their belongings, including household
utensils valued at P1,000.00, with the intention of
living in Aklan permanently.

“As already stated, the boat met typhoon ‘Welming‘
and due to the strong waves it sank causing the drowning of many passengers
among whom were Amparo delos Santos
and all the aforesaid children.  It
appears also that Teresa Pamatian and Diego Salim, who were also passengers also drowned.  Plaintiff Ruben Reyes was one of the
survivors.

“The plaintiffs presented the birth and death certificates of Amparo delos Santos
and the children (Exhs. I, I-1, J,
J-1, K, K-1, L, L-1, O to S, pp.
180 to 194 rec.).  They also
presented copies of the manifest of passengers of the M/V ‘Mindoro‘ on November 2, 1967 (Exhs. B & C, pp. 163
to 161 rec.).

“Eliadora Crisostomo
de Justo, one of the survivors, corroborated the
testimony of Mauricio delos Santos
that he accompanied Amparo delos Santos
and her children to the port to board the M/V Mindoro.  She is a cousin of Amparo
delos Santos’
husband.  According to her, when she
boarded the second deck of the vessel, she saw about 200 persons therein.  She tried to see whether she could be accommodated in the third deck or
first deck because the second deck was very crowded.  She admitted that she was not included in the
manifest because she boarded the boat without a ticket, but she purchased one
in the vessel.  She testified further
that the boat was not able to reach its destination due to its sinking.  During the typhoon before the vessel sunk,
she was able to board a ‘balsa.’

“Ruben Reyes, the other survivor, declared that he paid for
his ticket before boarding the M/V Mindoro.  At that time he had with him personal
belongings and cash all in the amount of P2,900.00.  It appears that Felix Reyes Jakusalem, Teresa Pamatian and Amparo delos
Santos drowned during the sinking
of the vessel.  He was able to swim on
(sic) an island and was with the others, rescued later on and brought to the
hospital.  The survivors were then taken
ashore (Exh. M, p. 188, rec.).

“Dominador Salim
declared that Teresa Pamatian, his aunt and Diego Salim, his father, drowned along with the sinking of the
M/V Mindoro. 
This witness declared that he accompanied both his father and his aunt
to the pier to board the boat and at the time Teresa Pamatian
was bringing cash and personal belongings of about P250.00 worth.  His father brought with him P200.00 in cash plus
some belongings.  He admitted that when
his father boarded the vessel he did not have yet a ticket.

“The plaintiffs further submitted in evidence a copy of a
Radiogram stating among other things that the M/V Mindoro
was loaded also with 3,000 cases of beer, one dump truck and 292 various goods
(Exhs. D and D-1, p. 162 rec).

“In alleging negligence on the part of the vessel, plaintiffs
introduced in evidence a letter sent to the Department of Social Welfare
concerning the resurvey of the M/V  ‘Mindoro‘ victims
(Exh. F, p. 169 rec.) and a telegram to the Social Welfare Administration (Exh. G, p. 170 rec.), a resurvey of the
M/V ‘Mindoro‘ victims (Exh. H, p. 171 rec.), a
complete list of the M/V ‘Mindoro‘ victims (Exhs, H-1 to H-8, pp. 172-179 rec.), a certified true copy
of the Special Permit to the Compania Maritima issued by the Bureau of Customs limiting the
vessel to only 193 passengers (Exh. X, p. 318 rec.).

“It appears that in a decision of the Board of Marine Inquiry,
dated February 2, 1970, it was found that the captain and some officers of the
crew were negligent in operating the vessel and imposed upon them a suspension
and/or revocation of their license certificates.  It appears, however, that this decision cannot
be executed against the captain who perished with the vessel (Exhs. E, E-1, E-1-A, E-2 to E-9, pp. 163-168 rec.).

“Upon agreement of the parties, the plaintiffs also introduced
in evidence the transcript of stenographic
notes of the testimony of Boanerjes Prado before Branch I of this Court (Exh.
U, pp. 203-220) and that of Felimon
Rebaño in the same branch (Exh.
V, pp. 225-260 rec.).

“The defendant alleges that no negligence was ever established
and, in fact, the shipowners and their officers took
all the necessary precautions in operating the vessel.  Furthermore, the loss of lives as a result of
the drowning of some passengers, including the relatives of the herein
plaintiffs, was due to force majeure
because of the strong typhoon ‘Welming.’ It appears
also that there was a note of marine protest in connection with the sinking of
the vessel as substantiated by affidavits (Exhs. 3,
3-A, 3-B, 3-C, 3-D, 3-E, 3-F and 3-G rec.).  On this score Emer
Saul, member of the PC Judge Advocate General’s Office, brought to Court
records of this case which were referred to their office by the Board of Marine
Inquiry.  According to him the decision
referred to by the plaintiffs was appealed to the Department of National
Defense, although he did not know the result of the appeal.  At any rate, he knew that the Department of
National Defense remanded the case to the Board of Marine Inquiry for further
investigation.  In the second indorsement signed by Efren I. Plana, Undersecretary of National Defense, it is stated,
among other things, that the hearings of the Board of Marine Inquiry wherein
the Philippine Coast Guard made the decision lacked the necessary quorum as
required by Section 827 of the Tariff and Customs Code.  Moreover, the decision of the Commandant of
the Philippine Coast Guard relied principally on the findings reached by the
Board of Officers after an ex-parte investigation
especially in those aspects unfavorable to the captain (Exh.
1, folder of exhibits).

“It appears also that
there were findings and recommendations made by the Board of Marine Inquiry,
dated March 5, 1968,
recommending among other things that the captain of the M/V ‘Mindoro,’ Felicito Irineo, should be exonerated.  Moreover, Captain Irineo
went down with the vessel and
his lips are forever sealed and could no longer defend himself.  This body also found that the ship’s
compliment (sic) and crew were all complete and the vessel was in seaworthy
condition.  If the M/V ‘Mindoro‘ sank, it was through force majeure (Exhs. 2 & 2-A, folder of exhibits).

“Defendant also introduced in evidence the transcripts of
stenographic notes of the testimony of Francisco Punzalan,
marine officer, as well as of Abelardo F. Garcia,
Harbor Pilot in Zamboanga
City, in Civil Case No. Q-12473 of Branch XXVIII, Court of First Instance of Rizal, Quezon City Branch (Exhs. 3-H & 10-H, folder of exhibits), and of Arturo Ilagan, boat captain, in Civil Case No. Q-15962 of Branch V, of the same Court (Exh.
9 folder of exhibits).

“It appears that five other vessels left the pier at Manila on
November 2, 1967, aside from the M/V ‘Mindoro‘ (Exhs 4 & 4-A).  A
certification of the Weather Bureau indicated the place of typhoon ‘Welming‘ on November
2, 1967 (Exh. 6).  A certification of the shipyard named El Varadero de Manila stated among other things that the M/V ‘Mindoro‘ was dry-docked from August 25 to September 6, 1967
and was found to be in a seaworthy condition (Exh.
5), and that the said M/V ‘Mindoro‘ was duly
inspected by the Bureau of Customs (Exhs. 7, 7-A
& 7-B).  Another certification was
introduced stating among other things that the Bureau of Customs gave a
clearance to the M/V ‘Mindoro‘
after inspection (Exh. 8 folder of exhibits).”
(CFI Decision, Records, pp. 468-471)

On the basis of
these facts, the trial court sustained
the position of private respondent Compania Maritima (Maritima, for short)
and issued a decision on March 27, 1974, to wit:

“WHEREFORE, the Court finds that in view of lack of sufficient
evidence, the case be, as it is hereby DISMISSED.

For lack of evidence, the counterclaim is also hereby DISMISSED.

IT IS SO ORDERED.” (Records, p. 474)

Forthwith, the petitioners’ heirs and Reyes brought an appeal to
the Court of Appeals.  As earlier
mentioned, the appellate court affirmed the decision on appeal.  While it found that there was concurring negligence
on the part of the captain which must be imputable to Maritima,
the Court of Appeals ruled that Maritima cannot be
held liable in damages based on the principle of limited liability of the shipowner or ship agent under Article 587 of the Code of Commerce.

The heirs and Reyes now come to Us with
the following assignment of errors:

“ERROR I

THE HONORABLE RESPONDENT
COURT OF APPEALS ERRED IN NOT CONCENTRATING TO (sic) THE PROVISION OF LAW IN
THE NEW CIVIL CODE AS EXPRESSED IN, –

‘Art. 1766. 
In all matters not regulated by this Code, the rights and
obligations of common carriers shall be governed by the Code of Commerce and by
special laws.’

ERROR II

RESPONDENT COURT OF
APPEALS ERRED IN NOT REVERSING THE DECISION OF THE LOWER COURT OF ORIGIN AFTER
FINDING A SERIES OF FAULTS AND NEGLIGENCE AND IN NOT ORDERING ITS CO-RESPONDENT
COMPANIA MARITIMA TO PAY THE DAMAGES IN ACCORDANCE WITH THE LAW.

ERROR III

THE HONORABLE RESPONDENT
COURT OF APPEALS ERRED TO NOTE, OBSERVE AND COMPREHEND THAT ART. 587 OF THE CODE
OF COMMERCE IS ONLY FOR THE GOODS WHICH THE
VESSEL CARRIED AND DO NOT INCLUDE PERSONS.” (Rollo,
p. 8)

The petition has merit.  At
the outset, We note that there is no dispute as to the
finding of the captain’s negligence in the mishap.  The present controversy centers on the
questions of Maritima’s negligence and of the
application of Article 587 of the Code of Commerce.  The said article provides:

“Art. 587. 
The ship agent shall also be civilly liable for indemnities in
favor of third persons which may arise from the conduct of the captain in the
care of the goods which he loaded on the vessel, but he may exempt himself therefrom by abandoning the vessel with all her equipments
and the freight it may have earned during the voyage.”

Under this provision, a shipowner or agent has the right of abandonment; and by
necessary implication, his liability is confined to that which he is entitled
as of right to abandon-“the vessel with all her equipments and the freight
it may have earned during the voyage” (Yangco v.
Laserna, et al. 73 Phil. 330, 332).  Notwithstanding the passage of the New Civil Code, Article 587 of the Code of
Commerce is still good law.  The reason
lies in the peculiar nature of maritime law which is “exclusively real and
hypothecary that operates to limit such liability to
the value of the vessel, or to the insurance thereon, if any (Yangco v. Laserna, ibid).  As correctly stated by
the appellate court, “(t)his rule is found
necessary to offset against the innumerable hazards and perils of a sea voyage
and to encourage shipbuilding and marine commerce (Decision, Rollo, p. 29). 
Contrary to the petitioners’ supposition, the limited liability doctrine
applies not only to the goods but also in all cases like death or injury to
passengers wherein the shipowner or agent may
properly be held liable for the negligent or illicit acts of the captain (Yangco v. Laserna, ibid).  It
must be stressed at this point
that Article 587 speaks only of situations where the fault or negligence is
committed solely by the captain.  In
cases where the shipowner is likewise to be blamed,
Article 587 does not apply (see Manila Steamship Co.,
Inc. v. Abdulhanan, et al., 100 Phil. 32, 38).  Such a situation will be covered by the
provisions of the New Civil Code on Common Carriers.  Owing to the nature of their business and for
reasons of public policy, common
carriers are tasked to observe extraordinary diligence in the vigilance over
the goods and for the safety of its passengers (Article 1733, New Civil
Code).  Further, they are bound to carry
the passengers safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with a due regard for all the
circumstances (Article 1755, New Civil Code). 
Whenever death or injury to a passenger occurs, common carriers are
presumed to have been at fault or to have acted negligently unless they prove
that they observed extraordinary diligence as prescribed by Articles 1733 and
1755 (Article 1756, New Civil Code).

Guided by the above legal provisions, We
painstakingly reviewed the records of the case and found imprints of Maritima’s negligence which compel Us to reverse the
conclusion of the appellate court.

Maritima claims that it did not have
any information about typhoon ‘Welming‘ until after
the boat was already at sea.  Modern technology belie such contention.  The Weather Bureau is now equipped with
modern apparatus which enables it to detect any incoming atmospheric
disturbances.  In his summary report on
tropical cyclone ‘Welming‘ which occurred within the
Philippine Area of Responsibility, Dr. Roman L. Kintanar,
Weather Bureau Director, stated that during the periods of November 1-5, 1967,
the Bureau issued a total of seventeen (17) warnings or advisories of typhoon ‘Welming‘ to shipping companies.  Additionally, he reported that:

“By 11:15 a.m.
of November 1st, or in less than
twenty four hours, the storm intensified into a
typhoon.  It was by then located at 8.7 N
137.3 E with sea level pressure of 978 millibars, an
eye diameter of about 18.53 kilometers and a maximum surface wind of 139
kilometers per hour.

“As it moved along in the open sea, it intensified further and
by 11:07 a.m.
of November 2, when its center was at 103 N 131.4 E, it
had attained surface winds of about 240 kilometers per hour.  x x
x” (Exh. Z, p. 131, Index of Exhibits, p. 115, underscoring ours).

Considering the above report and the
evidence on record showing the late departure of the ship at 6:00 p.m. (instead
of the scheduled 2:00 p.m. departure) on November 2, 1967, We find it highly
improbable that the Weather Bureau had not yet issued any typhoon bulletin at
any time during the day to the shipping companies.  Maritima submitted
no convincing evidence to show this omission. 
It’s evidence showing the Weather Bureau’s
forecast of November 3, 1967
is not persuasive.  It merely indicated the weather bulletin of
that day.  Nowhere could We find any
statement therein from the Weather Bureau that it had not issued any
forecast on November 1 and 2, 1967 (Exh. 6, Records,
p. 257).  Significantly, the appellate
court found that the ship’s captain through his action showed prior knowledge
of the typhoon.  The court said:

“x x x.  It cannot
be true that he was apprised of the typhoon only at about 11:00 o’clock the
following morning on November 3, 1967 when the Weather report was transmitted
to him from the Weather Bureau at which time he plotted its position.  For in his radiogram sent
to defendant-appellee’s office in Manila as early
as 8:07 in the morning of November 3, 1967 (Exh. D) he states in the
concluding portion ‘still observing weather condition,’ thereby implicitly
suggesting that he had known even before departure of the unusual weather
condition.  x x
x” (Decision, Rollo,
p. 26)

If the captain knew of the typhoon
beforehand, it is inconceivable for Maritima to be
totally in the dark of ‘Welming.’ In allowing the
ship to depart late from Manila
despite the typhoon advisories, Maritima displayed
lack of foresight and minimum concern for the safety of its passengers taking
into account the surrounding circumstances of the case.

While We agree with the appellate court
that the captain was negligent for
overloading the ship, We, however, rule that Maritima
shares equally in his negligence.  We find that while M/V Mindoro was already cleared by the Bureau of Customs and
the Coast Guard for departure at 2:00 p.m., the ship’s departure was, however,
delayed for four hours.  Maritima could not account for the delay because it neither
checked from the captain the reasons behind the delay nor sent its representative to inquire into the cause of such
delay.  It was due to this interim that
the appellate court noted that “(i)ndeed there is a great probability that unmanifested cargo (such as dump truck, 3 toyota cars, steel bars, and 6,000 beer cases) and
passengers (about 241 more than the authorized 193 passengers) were loaded
during the four (4) hour interval” (Decision, p. 13, Rollo,
p. 26).  Perchance, a closer supervision
could have prevented the overloading of the ship.  Maritima could have
directed the ship’s captain to immediately depart in view of the fact that as
of 11:07 in the morning of November 2, 1967, the typhoon had
already attained surface winds of about 240 kilometers per hour.  As the appellate court stated, “(v)erily, if it were not for this
delay, the vessel could have reached (its) destination and thereby have avoided
the effects of the storm” (Decision, Rollo, p.
26).  This conclusion was buttressed by
evidence that another ship, M/V Mangaren, an interisland vessel, sailed for New Washington, Aklan on November
2, 1967, ahead of M/V Mindoro and took the same route as the latter
but it arrived safely (Exh. BB-2, Index of Exhibits, pp.
143-144 and Exh. 4-A, ibid, p. 254).

Maritima presents evidence of the
seaworthy condition of the ship prior to its departure to prove that it
exercised extraordinary diligence in this case. 
M/V Mindoro was drydocked
for about a month.  Necessary repairs
were made on the ship.  Life saving
equipment and navigational instruments were installed.

While indeed it is true that all these things were done on the
vessel, Maritima, however, could not present evidence
that it specifically installed a radar which could
have allowed the vessel to navigate safely for shelter during a storm.  Consequently, the vessel was left at the
mercy of ‘Welming‘ in the open sea because although
it was already in the vicinity of the Aklan river, it
was unable to enter the mouth of Aklan River to get
into New Washington, Aklan due to darkness and the Floripon Lighthouse at the entrance of the Aklan River was not functioning or could not be seen at all
(Exh. 3-H, Index of Exhibits, pp. 192-195; see also Exh. 2-A, ibid, p. 160).  Storms and typhoons are not strange occurrences. 
In 1967 alone before ‘Welming,’ there were
about 17 typhoons that hit the country (Exh. M, Index
of Exhibits, p. 115), the latest of which was typhoon Uring
which occurred on October 20-25, which cost so much damage to lives and
properties.  With the impending threat of
‘Welming,’ an important device such as the radar
could have enabled the ship to pass through the river and to safety.

The foregoing clearly demonstrates that Maritima’s
lack of extraordinary diligence coupled with the negligence of the captain as
found by the appellate court were the proximate causes of the sinking of M/V Mindoro.  Hence, Maritima is liable for the deaths and injury of the
victims.

With the above finding, We now come to
the amount of damages due to the petitioners. 
Ordinarily, We would remand the case to the
trial court for the reception of evidence. 
Considering however, that this case has been pending for almost
twenty-three (23) years now and that since all the evidence had already been presented
by both parties and received by the trial court, We resolve to decide the
corresponding damages due to petitioners (see Samal
v. Court of Appeals, 99 Phil. 230; Del Castillo v. Jaymalin,
L-28256, March 17, 1982, 112 SCRA 629).

In their complaint filed with the Court of First Instance, petitioners
prayed for moral, actual and exemplary damages, as well as for attorney’s fees
plus costs.

Under Article 1764 in relation to Article 2206 of the New Civil
Code, the amount of damages for the death of a passenger caused by the breach
of contract by a common carrier is at least three thousand pesos (P3,000.00).  The
prevailing jurisprudence has increased the amount of P3,000.00
to P30,000.00 (De Lima v. Laguna Tayabas Co.,
L-35697-99, April 15, 1988, 160 SCRA 70). 
Consequently, Maritima should pay the civil
indemnity of P30,000.00 to the heirs of each of the
victims.  For mental anguish suffered due
to the deaths of their relatives, Maritima should
also pay to the heirs the sum of P10,000.00 each as
moral damages.

In addition, it was proven at the trial that at the time of
death, (1) Amparo delos
Santos had with her cash in the sum of P1,000.00 and
personal belongings valued at P500.00; (2) Teresa Pamatian,
cash in the sum of P250.00 and personal belongings worth P200.00; and (3) Diego
Salem, cash in the sum of P200.00 and personal belongings valued at
P100.00.  Likewise, it was established
that the heirs of Amparo delos Santos
and her deceased children incurred transportation and incidental expenses in
connection with the trial of this case in the amount of P500.00 while Dominador Salem, son of victim Diego Salem and nephew of
victim Teresa Pamatian spent about P100.00 for
expenses at the trial.  With respect to
petitioner Reyes, the evidence shows that at the time of the disaster, he had
in his possession cash in the sum of P2,900.00 and personal belongings worth
P100.00.  Further, due to the disaster,
Reyes was unable to work for three months due to shock and he was earning P9.50
a day or in a total sum of P855.00. 
Also, he spent about P100.00 for court expenses.  For such losses and
incidental expenses at the trial of this case, Maritima
should pay the aforestated amounts to the petitioners
as actual damages.

Reyes’ claim for moral damages cannot be granted inasmuch as the
same is not recoverable in damage action based on the breach of contract of
transportation under Articles 2219 and 2220 of the New Civil Code except (1)
where the mishap resulted in the death of a passenger and (2) where it is
proved that the carrier was guilty of fraud or bad faith, even if death does
not result (Rex Taxicab Co., Inc. v. Bautista, 109 Phil. 712).  The exceptions do not apply in this case
since Reyes survived the incident and no evidence was presented to show that Maritima was guilty of bad faith.  Mere carelessness of the carrier does not per
se constitute or justify an inference of malice or bad faith on its part
(Rex Taxicab Co., Inc. v. Bautista, supra).

Anent the claim for exemplary damages, We
are not inclined to grant the same in the absence of gross or reckless
negligence in this case.

As regards the claim for attorney’s fees, the records reveal that
the petitioners engaged the services of a lawyer and agreed to pay the sum of
P3,000.00 each on a contingent basis (see TSN’s, July
21, 1971, p. 24; November 3, 1971, pp. 18 and 29).  In view hereof, We find the sum of P10,000.00 as a reasonable compensation for the legal services
rendered.

ACCORDINGLY, the appealed decision is hereby REVERSED and
judgment is hereby rendered sentencing the private respondent to pay the
following:  (1) P30,000.00 as indemnity
for death to the heirs of each of the victims; (2) P10,000.00 as moral damages
to the heirs of each of the victims; (3) P6,805.00 as actual damages divided
among the petitioners as follows:  heirs
of Amparo Delos Santos and her deceased children,
P2,000.00; heirs of Teresa Pamatian, P450.00; heirs
of Diego Salem, P400.00; and Ruben Reyes, P2,955.00; (4) P10,000.00 as
attorney’s fees; and (5) the costs.

SO ORDERED.

Narvasa, (Chairman), Cruz, Gancayco, and Griño-Aquino, JJ., concur.