TRANSPORTATION LAW

3.08

Defenses in Carriage of Passengers

Primary defense exercise of extraordinary diligence
Even if there is a fortuitous event, the carrier must also
present proof of exercise of extraordinary diligence.

3.09
Acts of Employees
ART. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the former's
employees, although such employees may have acted beyond the
scope of their authority or in violation of the orders of the common
carriers.
This liability of the common carriers does not cease upon proof that
they exercised all the diligence of a good father of a family in the
selection and supervision of their employees.
The carrier is liable for the acts of its employees.
The carrier cannot escape liability by claiming that he
exercised due diligence in the selection and supervision of
the employee.
o Case: Cangco v. Manila Railroad Co.
It is no defense that the employee acted beyond the scope
of his authority.
3 very cogent reasons:
1. Special undertaking of the carrier furnish its
passenger that full measure of protection
afforded by the exercise of the high degree of
care prescribed by the law from the acts of the its
own servants charged with the passenger's
safety
2. Carrier's liability is the result of its confiding in the
servant's hands the performance of its contract to
safely transport the passenger, delegating the
duty of protecting the passenger with the utmost
care prescribed by law
3. Carrier must bear the risk of wrongful acts or
negligence of its employees against passengers
since it has the power to select and remove such
employees
Historical background
o Basis of the carrier's liability for assaults on
passengers committed by its drivers
1. Doctrine of respondeat superior
The carrier is liable only when the act of the
employee is within the scope of his authority and
duty.
It is not sufficient that the act be within the course of
employment only.
2. Principle that it is the carrier's implied duty to
transport the passenger safely
It is enough that the assault happens within the
course of the employee's duty.
It is no defense for the carrier that the act was done
in excess of authority or in disobedience of the
carrier's orders.
The carriers liability here is absolute.
The Civil Code evidently follows the rule based on
this view.
It is the carriers strict obligation to select its drivers
and similar employees with due regard not only to

DELOS SANTOS. UY. MELGAR. ORTEGA.Page 1

their technical competence and physical ability, but

also to their total personality.
Willful acts of the employees include theft.
o Code of Commerce captain shall be civilly
liable to the naviero and the latter to third
persons for all the thefts committed by the crew
o The Civil Code further reinforced this rule by the
duty to exercise extraordinary diligence.
Old code
Captain civilly liable for all damage sustained by
the vessel or its cargo through:
a. lack of skill or care on his part;
b. violations of the law; or
c. unlawful acts committed by the crew
Agent or shipowners not liable for any excesses
which may be committed by the captain and the
crew
In the light of the principles of modern law
Liability of the shipowner for the unlawful acts
committed by the captain and the crew cannot be
maintained in the absolute and categorical terms
in which it is formulated.
Shipowner cannot be excused from liability for
the damage and harm which may be suffered by
the third parties who contracted with the captain,
in his double capacity of agent and subordinate
of the shipowner himself.
If the shipowner derives profits from the results of
the choice of the captain and the crew, it is also
just that he should suffer the consequences of an
unsuccessful appointment
Penal Code such persons as undertake and
carry on any industry shall be civilly liable, in
default of those criminally liable, for the
misdemeanors and crimes committed by their
subordinates in the discharge of their duties
Code of Commerce shipowner civilly liable for
the loss suffered by those who contracted with
the captain, in consequence of the
misdemeanors and crimes committed by the
latter or by the members of the crew

3.10
Acts of Other Passengers and Third Persons
ART. 1763. A common carrier is responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other
passengers or of strangers, if the common carrier's employees
through the exercise of the diligence of a good father of a family
could have prevented or stopped the act or omission.
With respect to acts of strangers and other passengers
resulting in injury to passenger, the availability of such
defense is also subject to the exercise of a carrier of due
diligence to prevent or stop the act or omission.
o Case: MRR v. Ballesteros
Case: Bacarro, et al. v. Castano
Negligence of the carrier need not be the sole cause of the
damage or injury to the passenger or the goods.
The carrier would still be liable even if the contractual
breach concurs with the negligent act or omission of
another person.

TRANSPORTATION LAW

DELOS SANTOS. UY. MELGAR. ORTEGA.Page 2

TRANSPORTATION LAW
4.0
PASSENGERS BAGGAGES
ART. 1754. The provisions of Articles 1733 to 1753 shall apply to the
passenger's baggage which is not in his personal custody or in that
of his employee. As to other baggage, the rules in Articles 1998 and
2000 to 2003 concerning the responsibility of hotel-keepers shall be
applicable.

5.0
OBLIGATIONS
PASSENGER
5.01

4.01

4.02

Baggage
Whatever articles a passenger usually takes with him for
his own personal use, comfort, and convenience according
to the habits or wants of the particular class to which he
belongs, either with reference to his immediate necessities
or to the ultimate purpose of his journey
Checked-in Baggage
Delivered to the carrier
Governed by the rules requiring extraordinary diligence
The rules that are applicable to goods that are being
shipped are applicable to baggage delivered to the custody
of the carrier.
o Case: Sarkies Tours Philippines, Inc. v. CA, et al.

4.03
Hand Carried Luggage
ART. 1998. The deposit of effects made by the travellers in hotels or
inns shall also be regarded as necessary. The keepers of hotels or
inns shall be responsible for them as depositaries, provided that
notice was given to them, or to their employees, of the effects
brought by the guests and that, on the part of the latter, they take the
precautions which said hotel-keepers or their substitutes advised
relative to the care and vigilance of their effects. (1783)
ART. 2000. The responsibility referred to in the two preceding articles
shall include the loss of, or injury to the personal property of the
guests caused by the servants or employees of the keepers of hotels
or inns as well as strangers; but not that which may proceed from
any force majeure. The fact that travellers are constrained to rely on
the vigilance of the keeper of the hotels or inns shall be considered in
determining the degree of care required of him. (1784a)
ART. 2001. The act of a thief or robber, who has entered the hotel is
not deemed force majeure, unless it is done with the use of arms or
through an irresistible force. (n)
ART. 2002. The hotel-keeper is not liable for compensation if the loss
is due to the acts of the guest, his family, servants or visitors, or if the
loss arises from the character of the things brought into the hotel. (n)
ART. 2003. The hotel-keeper cannot free himself from responsibility
by posting notices to the effect that he is not liable for the articles
brought by the guest. Any stipulation between the hotel-keeper and
the guest whereby the responsibility of the former as set forth in
articles 1998 to 2001 is suppressed or diminished shall be void. (n)

DELOS SANTOS. UY. MELGAR. ORTEGA.Page 3

OF

SHIPPER,

CONSIGNEE

and

NEGLIGENCE OF SHIPPER OR PASSENGER

-

The obligation to exercise due diligence is not limited to the

carrier. The shipper is obliged to exercise due diligence in
avoiding damage or injury.
Nevertheless, contributory negligence on the part of the
shipper/ passenger would only mitigate the carriers
liability; it is not a total excuse.
However, if the negligence of the shipper/ passenger is the
proximate and only cause of the loss, then, the carrier shall
not be liable.
The carrier may overcome the
presumption of negligence and may be able to prove that
it exercised extraordinary diligence in handling the goods
or in transporting the passenger.

The carrier may be able to prove that the only cause of the loss
of the goods is any of the following:
1. Failure of the shipper to disclose the nature of the goods;
2. Improper marking or direction as to the destination;
3. Improper loading when he assumes such responsibility.
The shipper must likewise see to it that the goods are
properly packed; otherwise, liability of the carrier may either be
mitigated or barred depending on the circumstances.
Art. 1741. If the shipper or owner merely contributed to the loss,
destruction or deterioration of the goods, the proximate cause
thereof being the negligence of the common carrier, the latter
shall be liable in damages, which however, shall be equitably
reduced.
Art. 1761. The passenger must observe the diligence of a good
father of a family to avoid injury to himself.
Art. 1762. The contributory negligence of the passenger does
not bar recovery of damages for his death or injuries, if the
proximate cause thereof is the negligence of the common
carrier, but the amount of damages shall be equitably reduced.
a.

Causation

Negligence of shipper or passenger may be the proximate and only

cause of loss; carrier shall not be made liable
Carrier may be able to prove that the only cause of the loss of goods
is any of the following acts of the shipper:
1.

Failure of the shipper to disclose the nature of the goods;

2.

Improper marking or direction as to destination;

TRANSPORTATION LAW
3.

Improper loading when he assumes such responsibility

Shipper has duty to see to it that goods are packed, otherwise,

liability of carrier may be mitigated
b.

Avoidable Consequences

Even if carrier is responsible for the loss or injury, passenger is also

required to lessen the damage or injury under doctrine of avoidable
consequences1
c.

Last Clear Chance

A negligent carrier is liable to a negligent passenger in placing

himself in peril, if the carrier was aware of the passengers peril, or
should have been aware of it in the reasonable exercise of due care,
had in fact an opportunity later than that of the passenger to avoid an
accident.
Last clear chance applies in a suit between the owners and drivers of
colliding vehicles. It does not arise where a passenger demands
responsibility from the carrier to enforce its contractual obligations.
For it would be inequitable to exempt the negligent driver of the
carrier and its owner on the ground that the other driver was likewise
guilty of negligence.
d.

Assumption of Risk

Passengers must take such risks incident to the mode of travel.

Carriers are not insurers of the lives of their passengers. Thus, in air
travel, adverse weather conditions or extreme climatic changes are

1 The

doctrine that places the responsibility of minimizing damages

upon the person who has been injured.The major function of the
doctrine is to reduce the damages brought about by the defendant's
misconduct. Ordinarily, an individual cannot recover for losses that
might have been prevented through reasonable effort by the person,
particularly where the conduct causing the loss or injury is not willful,
intentional, or perpetuated in bad faith. The rule of avoidable
consequences applies to both contract and tort actions, but is not
applicable in cases involving willful injury or where the plaintiff could
not possibly have circumvented any of the harm for which he or she
claims damages. The efforts that the person who has been injured
must take to avoid the consequences of the misconduct are required to
be reasonable, based upon the circumstances of the particular case,
and subject to the rules of common sense and fair dealing. That which
is reasonably required is contingent upon the extent of the potential
injury as compared with the cost of rectifying the situation, and the
realistic likelihood of success in the protective effort. A plaintiff who
neglects to mitigate damages will not be entirely barred from
recovering such damages that he or she might have circumvented
through reasonable efforts.
Included in the effort that the law requires is the payment of reasonable
expenditures. The injured party need not, however, make extraordinary
payments to prevent the consequences of the wrongdoer's conduct.
The plaintiff's inability to produce funds to meet the situation presented
can excuse efforts to reduce the injury. (source: http://legaldictionary.thefreedictionary.com/Avoidable+Consequences)

DELOS SANTOS. UY. MELGAR. ORTEGA.Page 4

some of the perils involved in air travel, the consequence of which

the passenger must assume or expect.
However, there is no assumption of risk in a case wherein a
passenger boarded a carrier that was filled to capacity. The act of the
passenger in taking the extension chair does not amount to implied
assumption of risk.
Note: there is also no assumption of risk by the mere fact that the
carrier posted notices against such liability
Problem: Although, there is a sign in the bus that says: do not talk
to the driver while the bus is in motion, otherwise, the company
would not assume responsibility for any accident:. Nonetheless, the
passengers dared the driver to race with another bus, as the bus
speeds up in the attempt to overtake the other bus, it failed to slow
down. As a result, the bus turns turtle causing the death and injuries
to passengers. Is the bus company liable?
Answer: Yes. The bus company is obligated to exercise utmost
diligence in carrying passengers. This liability cannot be eliminated or
limited by simply posting notices. The passenger cannot be said to
have assumed the risk of being injured when he urged the driver to
accept the dare. At most, the passengers can only be said to be
guilty of contributory negligence which would mitigate the liability of
the driver, since the proximate cause of the accident was the drivers
willful and reckless act in running the race with the other bus.
Case: Cesar Isaac vs. A.L. Ammen Transportation Co, Inc.
- Where a carriers employee is confronted with a sudden
emergency, the fact that he is obliged to act quickly and
without a chance for deliberation must be taken into
account, and he is not led to the same degree of care that
he would otherwise be required to exercise in the absence
of such emergency but must exercise only such care as
any ordinary prudent person would exercise under like
circumstances and conditions, and the failure on his part to
exercise the best judgment the case renders possible does
no establish lack of care and skill on his part which renders
the company liable.
Case: Compania Maritima vs. CA and Vicente Concepcion
- While the act of private respondent in furnishing petitioner
with an inaccurate with of the payloader cannot
successfully be used as an excuse by petitioner to avoid
liability to the damage thus caused, said act constitutes a
CONTRIBUTORY CIRCUMSTANCE to the damage
caused on the payloader, which mitigates the liability for
damages of petitioner in accordance with Article 1741.
Case: Philippine National Railways vs. CA
- While petitioner failed to exercise extraordinary diligence
as required by law, it appears that the deceased was
chargeable with contributory negligence.
- Since he opted to sit on the open platform between the
coaches of the train, he should have held tightly and
tenaciously on the upright metal bar found at the side of
said platform to avoid falling off from the speeding train
5.02PAYMENT OF FREIGHT

TRANSPORTATION LAW
a.

Amount to be Paid

The regulation of rates is founded upon the valid exercise of the

Police Power of the state in order to protect the public from arbitrary
and excessive rates while maintaining the efficiency and quality of
services rendered. The fixing of just and reasonable rates involves a
balancing of investor and the consumer interest.
Although the consideration that should be paid to the carrier is still
subject to the agreement between parties, what can be agreed upon
should not be beyond the maximum amount fixed by appropriate
government agency.
b.

(2) Carriers Lien

If consignor or the consignee fails to pay the consideration for the
transportation of goods, the carrier may exercise his lien in
accordance with Art. 375 of Code of Commerce:
ARTICLE 375. The goods transported shall be especially bound to
answer for the cost of transportation and for the expenses and fees
incurred for them during their conveyance and until the moment of
their
delivery.
This special right shall prescribe eight days after the delivery has
been made, and once prescribed, the carrier shall have no other
action than that corresponding to him as an ordinary creditor.

Who will pay

5.06

Although either of the shipper or the consignor may pay the freight
before or at time the goods are delivered to the carrier for shipment,
nonetheless, it is the consignor (whom the contract of carriage is
made) who is primarily liable for the payment of freight whether or not
he is the owner of the goods. The obligation to pay is implied from
the mere fact that the consignor has placed the goods with the carrier
for the purpose of transportation.
c.

Time to pay

Code of Commerce provides that in the absence of any agreement,

the consignee who is supposed to pay must do so within 24-hours
from the time of delivery.
Article 374. The consignees to whom the shipment was made may
not defer the payment of the expenses and transportation charges of
the goods they receive after the lapse of twenty-four hours following
their delivery; and in case of delay in this payment, the carrier may
demand the judicial sale of the goods transported in an amount
necessary to cover the cost of transportation and the expenses
incurred.
(1) Carriage of Passengers by Sea
With respect to carriage of goods by sea, the tickets are purchased in
advance. Carriers are not supposed to allow passengers without
tickets --- the carrier is bound to observe a No Ticket, No Boarding
Policy. The carrier shall collect/ inspect the passengers ticket within
one hour from vessels departure as not to disrupt resting or sleeping
passengers.
If the vessel is not able to depart on time and the delay is
unreasonable, the passenger may opt to have his/ her ticket
refunded without refund service fee.
Delayed voyage means late departure of the vessel from its port of
origin and/ or late arrival of the vessel to its port of destination.
Unreasonable delay means the period of time that has lapsed
without just cause and is solely attributable to the carrier which has
prejudiced the transportation of the passenger and/ or cargoes to
their port of destination.
A passenger who failed to board the vessel can refund or revalidate
the ticket subject to surcharges. Revalidation means the
accreditation of the ticket that is not used and intended to be used for
another voyage.
DELOS SANTOS. UY. MELGAR. ORTEGA.Page 5

DEMURRAGE

Demurrage is the compensation provided for the contract of

affreightment for the detention of the vessel beyond the time agreed
on for loading and unloading. It is the claim for damages for failure to
accept delivery. In broad sense, very improper detention of a vessel
may be considered a demurrage. Technically, liability for demurrage
exists only when expressly stipulated in the contract.
Using the term in broader sense, damages in the nature of
demurrage are recoverable for a breach of the implied obligation to
load or unload the cargo with reasonable dispatch, but only by the
party to whom the duty is owed and only against on who is a party to
the shipping contract. Notice of arrival of vessels or conveyances, or
their placement for purposes of unloading is often a condition
precedent to the right to collect demurrage charges.

TRANSPORTATION LAW
CHAPTER 3: EXTRAORDINARY DILIGENCE

1.

Not the insurer of the lives and properties of the passenger

and shipper

ART. 1744. A stipulation between the common carrier and the

shipper or owner limiting the liability of the former for the loss,
destruction or deterioration of the goods to a degree less than
extraordinary diligence shall be valid, provided it be:

RATIONALE

2.

Carrier is bound to carry the passenger as safely as far as

human care and foresight can provide
Must use utmost diligence of very cautious persons
Extraordinary diligence calculated to protect the
passengers from tragic mishaps that frequently occur in
connection with rapid modern transportation
Creates a presumption of negligence
Common carrier must prove that it used all reasonable
means to ascertain the nature and characteristics of the
goods tendered for transport and it exercised due care in
handling them

1)
2)
3)

3.02 PASSENGERS

No hard and fast rule

Sufficient to reiterate that the source of a common carriers
liability is the contract of carriage
By entering into the said contract, it binds itself to carry the
passengers safely as human care and foresight can
provide using utmost diligence of a very cautious person,
with due regard for all circumstances
a.

2.01

Diligence of a good father of a family not enough

o Common carrier must exercise extraordinary
diligence in the performance of his
contractual obligation

a.

Duty is primarily owed to the passengers and the goods

that are being transported
Extraordinary diligence is owed not only to passengers or
shippers but also to third persons as well

The reduction of fare does not justify any limitation of

the common carriers liability.

4.0

3.01

Generally, parties may voluntarily modify the duty of the

carrier by express provision of their contract
GOODS

General Rule: Parties CANNOT stipulate that the carrier

will not exercise any diligence in the custody of goods
Neither can it be stipulated that the goods are at the
shippers risk
Exception: Art. 1744

DELOS SANTOS. UY. MELGAR. ORTEGA.Page 6

The diligence extends to 3rd persons

What the carrier can do is limit the liability
The common carrier shall exercise such diligence so that
they may be transported safely to their destination
EXTRAORDINARY DILIGENCE IN CARRIAGE BY SEA

3.
EFFECT OF STIPULATION ON EXTRAORDINARY
DILIGENCE

Gratuitous passenger extraordinary diligence is

also required even if the passenger is carried
gratuitously or even to non-paying passengers

ART. 1758. When a passenger is carried gratuitously, a

stipulation limiting the common carriers liability for negligence
is valid, but not for willful acts or gross negligence.

DUTY TO THIRD PERSONS

There can be no stipulation lessening the utmost diligence

that is owed to the passengers

ART. 1757. The responsibility of a common carrier for the safety

of the passengers as required in Arts. 1733 and 1755 cannot be
dispensed with or lessened by stipulation, by posting of
notices, by statements on tickets, or otherwise

HOW DUTY IS COMPLIED WITH

In writing, signed by the shipper or owner

Supported by a valuable consideration other than the
service rendered by the common carrier; and
Reasonable, just and not contrary to public policy

4.01

The provision requiring extraordinary diligence owed their

conception to the nature of the business of common
carriers; impressed with public interest
The public must of necessity rely on the care and the skill
of common carriers in the vigilance over the goods and
safety of the passengers
SEAWORTHINESS

The common carriers duty is to make the vessel seaworthy

Extraordinary diligence requires that the ship which will
transport the passengers and the goods are seaworthy
Carriers are deemed to warrant impliedly the
seaworthiness of the ship
Failure to maintain the seaworthiness of the ship is a clear
breach of duty
Requisites:
i.
Must be adequately equipped for voyage; and

TRANSPORTATION LAW
ii.
a.

b.

c.

d.

e.

Manned with a sufficient number of competent

officers and crew
Warranty of Seaworthiness of the Ship
o The passenger or shipper is under NO
obligation to conduct an inspection of the
ship and the crew
o The carrier is obliged by law to impliedly
warrant its seaworthiness, although there is
no express provision
Warranty under Special Law
o Impliedly warranted under the Insurance
Code(for local) and the Carriage of Goods
by Sea Act (for international carriage)
o The carrier shall be bound BEFORE and AT
the beginning of the voyage to exercise due
diligence
Domestic Shipping
o Sec.9 all vessels must at all times be
properly equipped with adequate life-saving
communication, safety and other equipment
operated and maintained in accordance with
MARINA and manned by duly licensed and
competent vessel crew
o MARINA shall have the power to inspect
vessels and all equipment on board to
ensure compliance with safety standards
No Duty to Inquire
o Because of the implied warranty of
seaworthiness, shippers of goods are not
expected to:
i. Inquire into vessels
seaworthiness
ii. Genuineness of its licenses
iii. Compliance with Maritime laws
o Passengers cannot be expected to inquire
every time they board a common carrier,
whether the carrier possesses the
necessary papers or that all the carriers
employees are qualified
o It is customarily presumed that the carriers
possess all the legal requisites in its
operation
Burden of Proof
o Passenger or shipper is NOT required to
prove in a case that the ship is not
seaworthy
o Where the vessel is found unseaworthy, the
shipowner is also presumed negligent since
it is tasked with the maintenance of the ship
o The carrier carries such burden of proof that
the ship is seaworthy

DELOS SANTOS. UY. MELGAR. ORTEGA.Page 7

4.02

Presentation of certificates of seaworthiness

is not sufficient to overcome the
presumption of negligence

MEANING OF SEAWORTHINESS

The strength, durability and engineering skill made a part of

ships construction and continued maintenance and with
competent and sufficient crew
Both of which would withstand the dangers which might be
reasonably expected during her voyage without loss or
damage to her particular cargo
a.

Insurance Code
o Sec 116 Ship must be properly lade, and
provided with competent master, a sufficient
number of competent officers and seamen
and equipment or implements for the
voyage
o Sec 119 it is unseaworthy by reason of
being unfitted to receive the cargo

b.

Carriage of Goods by Sea Act (COGSA)

o Carrier shall be bound before and at the
beginning of the voyage to exercise due
diligence to::
i. Make this ship seaworthy
ii. Properly man, equip and supply
the ship
iii. Make the holds, refrigerating,
cooling chambers and other parts
of the ship in which goods are
carried, fit and safe for their
reception, carriage and
preservation
iv. Carrier shall properly and carefully
load, handle, stow, carry, keep,
care for and discharge the goods
carried

c.

Fitness of the Vessel Itself

o It is necessary that the vessel can be
expected to meet the normal hazards of the
journey
o Test: Whether the ship and its
appurtenances are reasonably fit to perform
the service undertaken
o Unseaworthiness of the vessel may be
established by the fact that it did not
withstand the natural and inevitable action of
the sea
o A seaworthy ship will not normally sink

TRANSPORTATION LAW
o

The duty to make the ship seaworthy can be

delegated, however, the shipowner must
exercise close supervision over its men

The vessel itself may be suitable for cargo but this is not
enough because the cargo must also be properly stored
CHAPTER 3: EXTRAORDINARY DILIGENCE

4.03

CARGOWORTHINESS

4.04

PROPER MANNING

4.05

4.06

It must be adequately equipped for the voyage and

manned with sufficient number of competent officers and
crew
Art. 609 of the Code of Commerce captains, masters, or
patrons of vessels must be Filipinos, have legal capacity to
contract and prove the skill,capacity and qualifications
necessary to command and direct the vessel
If the owner of the vessel desires to be the captain, without
having the legal qualifications, he shall limit himself to the
financial administration of the vessel and shall intrust the
navigation to a person possessing qualification
If the carrier embarked on a voyage with an unlicensed
patron, then there is a violation of this rule (carrier cannot
claim to have exercised extraordinary diligence)

Diligence of a good father of a family not enough

o Common carrier must exercise extraordinary
diligence in the performance of his
contractual obligation

2.01 DUTY TO THIRD PERSONS

If the carrier embarked on a voyage with an unlicensed

patron, then there is a violation of this rule (carrier cannot
claim to have exercised extraordinary diligence)
Rules include the requirement that there are adequate exit
doors, life boats, life vests and other similar items
(according to MARINA)

DELOS SANTOS. UY. MELGAR. ORTEGA.Page 8

No hard and fast rule

Sufficient to reiterate that the source of a common carriers
liability is the contract of carriage
By entering into the said contract, it binds itself to carry the
passengers safely as human care and foresight can
provide using utmost diligence of a very cautious person,
with due regard for all circumstances
b.

PROPER STORAGE

Carrier is bound to carry the passenger as safely as far as

human care and foresight can provide
Must use utmost diligence of very cautious persons
Extraordinary diligence calculated to protect the
passengers from tragic mishaps that frequently occur in
connection with rapid modern transportation
Creates a presumption of negligence
Common carrier must prove that it used all reasonable
means to ascertain the nature and characteristics of the
goods tendered for transport and it exercised due care in
handling them

2. HOW DUTY IS COMPLIED WITH

ADEQUATE EQUIPMENT

Duty to exercise due diligence includes the duty to take

passengers or cargoes that are within the carrying capacity
of the vessel

Not the insurer of the lives and properties of the passenger

and shipper

1. RATIONALE

Duty is primarily owed to the passengers and the goods

that are being transported
Extraordinary diligence is owed not only to passengers or
shippers but also to third persons as well

3. EFFECT OF STIPULATION ON EXTRAORDINARY DILIGENCE

OVERLOADING

4.07

Ship must not only be seaworthy to undertake the voyage

but it must also be cargoworthy (fit to carry the cargo)
Even if the vessel was properly maintained and is free from
defect, the carrier must not accept goods that cannot
properly be transported in the ship
The ship must be fit to carry the contemplated cargo as a
carrying receptacle
Cargoworthiness: vessel must be sufficiently strong and
equipped to carry the particular kind of cargo which she
has contracted to carry and her cargo must be so loaded
that it is for her to proceed on her voyage
Not cargoworthy: no sufficient means of ventilation

Generally, parties may voluntarily modify the duty of the

carrier by express provision of their contract

3.01 GOODS

General Rule: Parties CANNOT stipulate that the carrier

will not exercise any diligence in the custody of goods
Neither can it be stipulated that the goods are at the
shippers risk

TRANSPORTATION LAW

Exception: Art. 1744

ART. 1744. A stipulation between the common carrier and the

shipper or owner limiting the liability of the former for the loss,
destruction or deterioration of the goods to a degree less than
extraordinary diligence shall be valid, provided it be:
4)
5)
6)

Requisites:
i.
Must be adequately equipped for voyage; and
ii.
Manned with a sufficient number of competent
officers and crew
f.

Warranty of Seaworthiness of the Ship

o The passenger or shipper is under NO
obligation to conduct an inspection of the
ship and the crew
o The carrier is obliged by law to impliedly
warrant its seaworthiness, although there is
no express provision

g.

Warranty under Special Law

o Impliedly warranted under the Insurance
Code(for local) and the Carriage of Goods
by Sea Act (for international carriage)
o The carrier shall be bound BEFORE and AT
the beginning of the voyage to exercise due
diligence

h.

Domestic Shipping
o Sec.9 all vessels must at all times be
properly equipped with adequate life-saving
communication, safety and other equipment
operated and maintained in accordance with
MARINA and manned by duly licensed and
competent vessel crew
o MARINA shall have the power to inspect
vessels and all equipment on board to
ensure compliance with safety standards

i.

No Duty to Inquire
o Because of the implied warranty of
seaworthiness, shippers of goods are not
expected to:
i. Inquire into vessels
seaworthiness
ii. Genuineness of its licenses
iii. Compliance with Maritime laws
o Passengers cannot be expected to inquire
every time they board a common carrier,
whether the carrier possesses the
necessary papers or that all the carriers
employees are qualified
o It is customarily presumed that the carriers
possess all the legal requisites in its
operation

j.

Burden of Proof
o Passenger or shipper is NOT required to
prove in a case that the ship is not
seaworthy
o Where the vessel is found unseaworthy, the
shipowner is also presumed negligent since
it is tasked with the maintenance of the ship

In writing, signed by the shipper or owner

Supported by a valuable consideration other than the
service rendered by the common carrier; and
Reasonable, just and not contrary to public policy

3.02 PASSENGERS

There can be no stipulation lessening the utmost diligence

that is owed to the passengers

ART. 1757. The responsibility of a common carrier for the safety

of the passengers as required in Arts. 1733 and 1755 cannot be
dispensed with or lessened by stipulation, by posting of
notices, by statements on tickets, or otherwise
b.

Gratuitous passenger extraordinary diligence is

also required even if the passenger is carried
gratuitously or even to non-paying passengers

ART. 1758. When a passenger is carried gratuitously, a

stipulation limiting the common carriers liability for negligence
is valid, but not for willful acts or gross negligence.
The reduction of fare does not justify any limitation of
the common carriers liability.

The diligence extends to 3rd persons

What the carrier can do is limit the liability
The common carrier shall exercise such diligence so that
they may be transported safely to their destination

4. EXTRAORDINARY DILIGENCE IN CARRIAGE BY SEA

4.01

The provision requiring extraordinary diligence owed their

conception to the nature of the business of common
carriers; impressed with public interest
The public must of necessity rely on the care and the skill
of common carriers in the vigilance over the goods and
safety of the passengers
SEAWORTHINESS

The common carriers duty is to make the vessel seaworthy

Extraordinary diligence requires that the ship which will
transport the passengers and the goods are seaworthy
Carriers are deemed to warrant impliedly the
seaworthiness of the ship
Failure to maintain the seaworthiness of the ship is a clear
breach of duty

DELOS SANTOS. UY. MELGAR. ORTEGA.Page 9

TRANSPORTATION LAW
o
o

4.02

The carrier carries such burden of proof that

the ship is seaworthy
Presentation of certificates of seaworthiness
is not sufficient to overcome the
presumption of negligence

4.03

CARGOWORTHINESS

MEANING OF SEAWORTHINESS

The strength, durability and engineering skill made a part of

ships construction and continued maintenance and with
competent and sufficient crew
Both of which would withstand the dangers which might be
reasonably expected during her voyage without loss or
damage to her particular cargo

d.

e.

f.

Insurance Code
o Sec 116 Ship must be properly lade, and
provided with competent master, a sufficient
number of competent officers and seamen
and equipment or implements for the
voyage
o Sec 119 it is unseaworthy by reason of
being unfitted to receive the cargo
Carriage of Goods by Sea Act (COGSA)
o Carrier shall be bound before and at the
beginning of the voyage to exercise due
diligence to::
i. Make this ship seaworthy
ii. Properly man, equip and supply the ship
iii. Make the holds, refrigerating, cooling
chambers and other parts of the ship in
which goods are carried, fit and safe for
their reception, carriage and
preservation
iv. Carrier shall properly and carefully load,
handle, stow, carry, keep, care for and
discharge the goods carried

Fitness of the Vessel Itself

o It is necessary that the vessel can be
expected to meet the normal hazards of the
journey
o Test: Whether the ship and its
appurtenances are reasonably fit to perform
the service undertaken
o Unseaworthiness of the vessel may be
established by the fact that it did not
withstand the natural and inevitable action of
the sea
o A seaworthy ship will not normally sink

DELOS SANTOS. UY. MELGAR. ORTEGA.Page 10

The duty to make the ship seaworthy can be

delegated, however, the shipowner must
exercise close supervision over its men

4.04

Ship must not only be seaworthy to undertake the voyage

but it must also be cargoworthy (fit to carry the cargo)
Even if the vessel was properly maintained and is free from
defect, the carrier must not accept goods that cannot
properly be transported in the ship
The ship must be fit to carry the contemplated cargo as a
carrying receptacle
Cargoworthiness: vessel must be sufficiently strong and
equipped to carry the particular kind of cargo which she
has contracted to carry and her cargo must be so loaded
that it is for her to proceed on her voyage
Not cargoworthy: no sufficient means of ventilation

PROPER MANNING

It must be adequately equipped for the voyage and

manned with sufficient number of competent officers and
crew
Art. 609 of the Code of Commerce captains, masters, or
patrons of vessels must be Filipinos, have legal capacity to
contract and prove the skill,capacity and qualifications
necessary to command and direct the vessel
If the owner of the vessel desires to be the captain, without
having the legal qualifications, he shall limit himself to the
financial administration of the vessel and shall intrust the
navigation to a person possessing qualification
If the carrier embarked on a voyage with an unlicensed
patron, then there is a violation of this rule (carrier cannot
claim to have exercised extraordinary diligence)

4.05ADEQUATE EQUIPMENT

If the carrier embarked on a voyage with an unlicensed

patron, then there is a violation of this rule (carrier cannot
claim to have exercised extraordinary diligence)
Rules include the requirement that there are adequate exit
doors, life boats, life vests and other similar items
(according to MARINA)

4.06 OVERLOADING

TRANSPORTATION LAW

Duty to exercise due diligence includes the duty to take

passengers or cargoes that are within the carrying capacity
of the vessel

4.07 PROPER STORAGE

DELOS SANTOS. UY. MELGAR. ORTEGA.Page 11

The vessel itself may be suitable for cargo but this is not
enough because the cargo must also be properly stored