BANKERS & MANUFACTURERS ASSURANCE CORP., PETITIONER, VS. COURT OF APPEALS, F.E. ZUELLIG & CO., INC. AND E. RAZON, INC., RESPONDENTS.

After the Court of Appeals in CA-G.R. CV No. 08226 (July 8, 1987,
Kapunan, Puno (P), Marigomen, JJ.) affirmed the dismissal by Branch XVI of the
Regional Trial Court of Manila of petitioner’s complaint for recovery of the amount it had paid its
insured concerning the loss of a portion of a shipment, petitioner has
interposed the instant petition for review on certiorari.

Petitioner presents the following bare operative facts: 108 cases of copper tubings were imported by
Ali Trading Company. The tubings were
insured by petitioner and
arrived in Manila on board the vessel S/S “Oriental Ambassador” on November 4,
1978, and turned over to private respondent E. Razon, the Manila arrastre
operator upon discharge at the waterfront. The carrying vessel is represented in the Philippines by its agent, the
other private respondent, F. E. Zuellig and Co., Inc. Upon inspection by the importer, the shipment was allegedly found
to have sustained loses by way of
theft and pilferage for which petitioner, as insurer, compensated the importer
in the amount of P31,014.00.

Petitioner, in subrogation of the importer-consignee and on the
basis of what it asserts had been already established – that a portion of the
shipment was lost through theft and pilferage – forthwith concludes that the burden of proof of proving a case of non-liability shifted to
private respondents, one of whom,
the carrier, being obligated to exercise extraordinary diligence in the
transport and care of the shipment. The
implication of petitioner’s statement is that private respondents have not
shown why they are not liable. The
premises of the argument of petitioner may be well-taken but the conclusions
are not borne out or supported by the record.

It must be underscored that the shipment involved in the case at
bar was “containerized”. The goods
under this arrangement are stuffed, packed, and loaded by the shipper at a
place of his choice, usually his own warehouse, in the absence
of the carrier. The container is sealed
by the shipper and thereafter picked up by the carrier. Consequently, the recital of the bill of
lading for goods thus transported ordinarily would declare “Said to Contain”,
“Shipper’s Load and Count”, “Full Container Load”, and the amount or quantity
of goods in the container in a particular package is only prima facie
evidence of the amount or quantity which may be overthrown by parol evidence.

A shipment under this arrangement is not inspected or inventoried
by the carrier whose duty is only to transport and deliver the containers in
the same condition as when the carrier received and accepted the containers for
transport. In the case at bar, the
copper tubings were placed in three containers. Upon arrival in Manila on November 4, 1978, the shipment was
discharged in apparent good order and condition and from the pier’s docking
apron, the containers were shifted to the container yard of Pier 3 for
safekeeping. Three weeks later, one of
the container vans, said to contain 19 cases of the cargo, was “stripped” in
the presence of petitioner’s surveyors, and three cases were found to be in bad
order. The 19 cases of the van stripped
were then kept inside Warehouse No. 3 of Pier 3 pending delivery. It should be stressed at this point, that
the three cases found in bad order are not the cases for which the claim
below was presented, for although the three cases appeared to be in bad order,
the contents remained good and intact.

The two other container vans were not moved from the container
yard and they were not stripped. On December 8, 1978, the cargo was released to the care of the
consignee’s authorized customs broker, the RGS Customs Brokerage. The broker, accepting the shipment without
exception as to bad order, caused the delivery of the vans to the consignee’s
warehouse in Makati. It was at that
place, when the contents of the two containers were removed and inspected, that
petitioner’s surveyors reported, that checked against the packing list, the
shipment in Container No. OOLU2559269 was short of seven cases (see p. 18,
Rollo).

Under the prevailing circumstances, it is, therefore, not
surprising why the Court of Appeals in sustaining the trial court, simply
quoted the latter, thus:

“It must be also considered
that the subject container was not stripped of its contents at the pier
zone. The two unstripped containers
(together with the 19 cases removed from the stripped third container) were delivered
to, and received by, the customs broker for the consignee without any exception
or notation of bad order or shortlanding (Exhs. 1, 2 and 3-Vessel). If there was any suspicion or indication of
irregularity or theft or pilferage, plaintiff’s or consignee’s representatives
should have noted the same on the gate passes or insisted that some form of
protest form part of the documents concerning the shipment. Yet, no such step was taken. The shipment appears to have been delivered
to the customs broker in good order and condition and complete save for the
three cases noted as being apparently in bad order.

Consider further
that the stripping of the subject container was done at the consignee’s
warehouse where, according to plaintiff’s surveyor, the loss of the seven cases
was discovered. The evidence is not
settled as whether the defendants’ representatives were notified of, and were present at, the unsealing and opening of the
containers in the bodega. Nor is the evidence clear how much time elapsed between the release of the shipment from
the pier and the stripping of the containers at consignee’s bodega. All these fail to discount the possibility
that the loss in question could have taken place after the containers had left
the pier.”

(pp. 20-21, Rollo)

Verily, if any of the vans were found in bad condition, or if any
inspection of the goods was to be done in order to determine the condition
thereof, the same should have been done at pierside, the pier warehouse, or at
any time and place while the vans were under the care and custody of the
carrier or of the arrastre operator. Unfortunately for petitioner, even as one of the three vans was
inspected and stripped, the two other vans were not similarly gone over. Rather, these two vans and the contents of
the one previously stripped were accepted without exception as to any supposed
bad order or condition by petitioner’s own broker. To all appearances, therefore, the shipment was accepted by
petitioner in good order.

It logically follows that the case at bar presents no occasion
for the necessity of discussing the diligence required of a carrier or of the
theory of prima facie liability of the carrier, for from all indications, the shipment did not
suffer loss or damage while it was
under the care of the carrier, or of the arrastre operator, it must be added.

WHEREFORE, the petition
is hereby DISMISSED and the decision of
the Court of Appeals AFFIRMED, with
costs against petitioner.

SO ORDERED.

Bidin, Davide, Jr., and
Romero, JJ., concur.

Gutierrez, Jr., J., (Chairman), on
leave.