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Transportation Law Reviewer

 Common Carrier- is a person, corporation, firm or association

engaged in the business of carrying or transporting of passengers or
goods or both by land, water or air for compensation offering their
services to the public. A common carrier is a person or corporation
whose regular business is to carry passenger or property for all those
who may choose to employ and to remember and to remunerate him.
 Common Carrier- another person who holds himself to the public as
engaged in the business or transporting person, property or news from
place to place for compensation offering the services to the public
generally.
 True nature of the common carrier is the carriage of the
passengers or goods provided it has space for all who opt to avail
themselves of its transportation service for a fee. A carrier which does
not qualify under these test is deemed to be a private carrier.
 Certificate of public convenience- is not a requisite for incurring
liability under the civil code provisions governing common carrier.
Which liability arises the moment a person of firm acts as a common
carrier without regard as to whether or not the common carrier
complied whether as to the requirements of the applicable regulatory
statute and implementing regulations or has been granted a certificate
of public convenience or other franchise registered owner of a vehicle
is directly and primarily responsible to the public and third persons
while it is being operated and whether the driver is authorized or not,
by the actual owner is irrelevant to determining the liability of the
registered owner whom the law holds to be primarily and directly
responsible for any accident, any injury, or death caused by the
operations of the vehicles in the streets and highways.
 What is the diligence required of common carrier over goods
and for the safety of passengers being transported by them?
Article 1733 of NCC- Common carriers, from the nature of their
business and for the reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the
safety of the passengers transported by them, according to all
circumstances of each case.
 Two kinds of diligence:
1. Diligence required of common carriers to carry
passengers- Articles 1733 & 1755 of the civil code.
-Article 1755: A common carrier is bound to carry the
passengers safely as far as human care and provide, using
the utmost diligence of very cautious persons, with a due
regard for all the circumstances.
-In case of death of passengers: common carriers are
presumed to be at fault or to have acted negligently unless
they proves that they have observed the extraordinary
diligence prescribed in Articles 1733 and 1755 of the Civil
Code.
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-Article 1757: The responsibility of a common carrier for the

safety of passengers as required in Articles 1733 and 1755
cannot be dispensed with or lessened by stipulation, by the
posting of notices, by statements on tickets, or otherwise.
2. Extraordinary diligence- is rendition of service with the
greatest skill and foresight. (Davao Stevedore Co. Vs.
Fernandez)
 The law requires common carrier to carry passengers safely using the
utmost diligence of a very cautious person with due regard for all
circumstances.
 In case of death or injury to a passenger- the common carrier is
presumed to have been at fault or to have been negligent. ( Life Rail
transit Authority vs. Natividad)
 Diligence required in the carriage of goods- Article 1734:
Common carriers are responsible for the loss, destruction, or
deterioration of the goods, unless the same is due to any of the
following causes only:
(1) Flood, storm, earthquake, lightning, or other natural
disaster or calamity;
(2) Act of the public enemy in war, whether international or
civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or in
the containers;
(5) Order or act of competent public authority.
-if the goods are lost, destroyed or deteriorated, common carriers are
presumed to have been at fault or to have acted negligently unless
they proved that they observed extraordinary diligence required under
Article 1733.
 Extraordinary diligence in the vigilance over the goods
tendered for shipment-requires the common carrier to know and to
follow the required precaution or avoiding damage to or destruction of
the goods entrusted to it for sale, carriage, and delivery. Hence, it
requires the common carriers to render service with the greatest skill
and foresight and to use all reasonable means to ascertain the nature
and characteristics of the goods tendered for shipment and to exercise
due care in handling and storage including such methods as their
nature requires. ( Calvo vs UCPD GR No. 148496)

 Extraordinary diligence required rendering service with the greatest

skill and foresight and to avoid damage and destruction to the goods
entrusted for carriage and delivery. Common carriers are presumed to
have been at fault or have been acted negligently for loss and damage
to the goods they have transported. (Lea Mer Industries Inc., Vs.
Malayan Insurance Co. Inc.)

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 Liabilities of common carriers: the law requires the common

carrier to carry passengers safely using the utmost diligence of a very
cautious person with due regard for all the circumstances. In case of
death or injury to a passenger, a common carrier is presumed to have
at fault or to have been negligent. Therefore by the nature of its
business, and for reasons of public policy, a common carrier is bound
to carry passenger safely as far as human care and foresight can
provide.

 In an action for breach of contract of carriage- all that is required

of the plaintiff is to prove the existence of such contract. Its non-
performance by common carrier through the latter’s failure to carry
the passenger safely to his destination. Although initially, the burden
of proof was with the passenger, to prove that there was a breach of
contract of carriage, the burden of evidence is shifted to the earlier
when the former failed to adduce proof to produce the facts the he has
alleged. And in the contract of carriage it is presumed that the
common carrier was at fault or was negligent when a passenger dies
or when it is injured. Unless the presumption is rebutted, the court
need not even make an express finding of fault or negligence on the
part of the common carrier.

 What are the causes of action arising the same negligent act?
-Culpa contractual, Culpa Aquiliana, Culpa Criminal
 Culpa contractual- (negligence based on contract) It is the obligation
of the carrier to convey the passenger safely to the point of
destination. If the passenger is not brought safely, there will be a
breach of contract. Passenger vs public utility company because there
is a contract between them. The driver is not included because he is
not privy to the contract. The common carrier becomes liable for the
death or injury of the passengers when through the negligence or
willful act of its employees or on account of willful act or negligence of
other passengers or of strangers, if the common carrier employees
through the exercise of due diligence could have prevented or stop
the act or omission. (Light Rail Authority vs. Navidad)

 Culpa Aquiliana- (negligence based on tort) Damage caused to

another due to negligence. Passenger vs. the owner of public utility
and the driver. The owner of the public utility and the driver will be
solidarily liable as joined tort feasors. The driver’s act may result to a
crime is reckless imprudence and it is resulting to physical injuries, the
case will be entitled people vs driver. If he is convicted but insolvent,
an action can be pursued by passenger against the public utility
company in order to enforce the latter’s subsidiary liability. The best
evidence of a contract of passenger is the ticket.

May there be a contract of carriage even though there is no

ticket? Yes, because the statutes of fraud covers 6 contracts. None of

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which is a contract of transportation which means that the contract of

carriage maybe oral.

A contract of common carrier is consist of two aspects namely:

-the contract to carry at some featured time which contract is
consensual and necessary perfected by mere consent. Art 1356 Civil
Code.
-the contract of common carriage itself which is considered the
real contract for not until the carrier is actually used. That carrier is
said to be to have already assumed the obligation of a carrier. A
carrier can be held liable for damages for failure to comply with the
contract to carry which is consensual in nature. The obvious source of
the liability of a common carrier to shipper or passenger is contractual.
Any suit against the carrier will normally be based on breach of
contract. When the suit is based on this source of liability, the plaintiff
need not prove the negligence of the carrier. This negligence is
presumed under 1735 and 1756 of the civil code.
-the liability of a common carrier may also be anchored on
quasi-delict if the liability originates from the negligence of each
employees. Under Article 2180 an employee is liable for the acts or
negligence of its employees. An employee is liable on the acts
committed in the exercise of its duties. The liability of the employer is
its negligence is the selection and supervision of its employees.

Principles governing the liabilities of a common carrier is

contractual and arises between each obligation. There is breach
if it fails to exert the extraordinary diligence according the
circumstances of each case. A carrier is obliged to carry its passenger
with the utmost diligence of a very cautious person having due regard
for all the circumstance. In case of death or injury to the passenger, it
being its duty to prove that it exercise extraordinary diligence. The
carrier is not an insurer in not risk of travel. In the case of the carrier
is presumed to be at fault or to have acted negligently
Statutory obligations of the Common Carrier: Article 1755 obliges
the carrier to carry passenger 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. In case of death
or injury, the carrier is presumed to be at fault or acted negligently
unless it proves that it exercise the extraordinary diligence as
prescribed in articles 1733 and 1755 of the civil code. That is so
because a common carrier by its nature of business and by reasons of
public policies, is bound to carry passenger safely as far as human
care and foresight can provide using the utmost diligence of a very
cautious person with due regard to all circumstances. In case of death
or injury to the passenger, is presumed to have been at fault or have
been acted negligently unless it observe extraordinary diligence. The
case of Tiu vs. Arriesgado held that upon the happening of the
accident upon the presumption of negligence at once arises and it

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becomes the duty of the common carrier to overcome such

presumption of negligence, therefore the carrier must show the
diligence of a very cautious person as far as human care and foresight
can provide or that the accident by cause by a fortuitous event.
What are the circumstances when common carrier can claim
fortuitous event?
-The explosion of a new tire by itself cannot be considered a
fortuitous event to exempt the common carrier from liability in the
absence of any showing on that part of the carrier that other human
factors that could have been intervene to cause the blowing of the tire
did not occur. Moreover, the common carrier may not be absolved
from liability in case of force majeure or fortuitous alone. It must still
prove that it is not negligent in causing the death or injury of the
passenger resulting from the accident.
- Another instance, the drivers of vehicles who bumped another
vehicle must be presumed to be the cause of the accident unless it is
contradicted by other evidence since the real driver is deemed to have
the last clear chance of avoiding the accident, therefore is deemed to
be negligent. (raynera vs hiseta)
- Article 2185 Civil code- unless there is proof to the contrary, it
is presumed that a person driving a motor vehicle has been negligent
if at the time of the mishap, he was violating any traffic regulation
such as when he was driving at the wrong side of the road. (Mallari vs.
CA)
- the negligence and recklessness of a jeepney driver is binding
against the owner, and in action based on contract of carriage, the
court need not make an express finding of fault or negligence on the
part of the carrier in order to hold it responsible for payment of
damages sought by the passenger. Since under article 1755 of the civil
code, the common carrier is bound to carry the passenger safely.
Article 1756, in case of death or injury of passenger, the common
carrier is presumed to been at fault or to have been acted negligently.
In article 1759, a common carrier is liable for the death or injury of the
passenger through the negligence or willful act of employees and such
liability of common carrier does not seized upon a proof that it exercise
all the diligence of a good father of a family in the selection of its
employees. (Mallari vs. CA)
-where the common carrier accept its passengers baggage for
transportation and even had it raised in the a vehicle by its own
employees, the failure to collect the freight charges is the common
carrier’s own lookout and cannot be use to exempt the common
carrier’s liability for the consequent loss of the baggage. (Sarkiss Ttour
Philippines vs CA)
-all to the baggage of the passenger was eventually delivered to
him, that did not constitute a case of mere delay in the delivery since

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the baggage was not delivered at all to the passenger for the purpose
of the drip in contravention of common carrier undertaking to
transport the goods from the place of embarkation to the ultimate
point of destination. The non-delivery of the baggage during the entire
leg of the passengers stay abroad is a breach of carrier’s obligation.
(Philippine Airlines Vs IAC)
Due diligence in the selection and supervision of employees
-for a bus company, due diligence in the selection of employees
is not satisfied by finding that the applicant possessed a professional
driver’s license. The employer should also examine the applicant for
his qualification, experience and record of service. Therefore due
diligence in supervision requires formulation of rules and regulations
for the guidance of employees and the issuance of proper instructions
as well as actual implementation and also monitoring of consistent
compliance with the rules. (Fabre vs CA)
Coverage of fortuitous event
- Covers not only acts of God (lighting, storm, etc.) but also acts of man
such as war, strikes, homicide, recklessness of other drivers, latent
mechanical defects, etc. If fortuitous event is prove, the carrier is
absolved from liability. But fortuitous event must not concur with
negligence, otherwise it is no longer a defense. In other words,
fortuitous event must be the sole element must be relied upon as a
defense.
- A fortuitous event is caused by the following characteristics:
1. The cause of unforeseen and unexpected occurrence or failure
of the debtor to comply with the obligation must be
independent of human will. It must be impossible to foresee
the event and constitute kaso fortuito.
2. Occurrence must be such as surrendered it impossible for the
debtor to fulfill his obligation in a normal manner.
3. The obligor must be free from any participation in aggravation
of the injury resulting to the creditor. Based on the foregoing,
a bus company cannot be exempted from liability from a tire
blowout which cannot be classified simply as fortuitous event
in the absent of showing that it has indeed exercise
extraordinary diligence required of common carrier under the
law. (Ubito Vs CA)

- The act of a passenger stabbing another passenger in a bus is

considered as force majeure. However, to be absolved from liability in
case of force majeure, the common carrier must still prove that it was
not negligent in causing the injuries resulting to from such accident.
Otherwise, it would still be held liable. (Bachelor Express Inc. Vs CA)

In case of contributory negligence of a passenger:

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-is governed by article 1762 of NCC which provides that it does not bar
recovery of damages for his death or injury if the proximate cause is the
negligence of the common carrier but the amount of damages shall be
equitably reduced.
-under Article 1733 of NCC, it requires common carriers in the carriage
of goods to observe extraordinary care in the vigilance over the carriage
of the goods. This rule remains basically unchanged even the contract is
basically breached by tort although non-contradictory principles on quasi-
delict may then be assimilated as also forming part of the governing law.
Doctrine of last clear chance
-where both parties are negligent but the negligent one is appreciably
later than the other, where it is impossible to determine whose fault or
negligence caused the lost, the one who has the last clear opportunity to
avoid the lost but failed to do so is chargeable with the laws. Stated
differently, the antecedent negligence, plaintiff does not precluded from
recovering damages caused by the supervening negligence of a defendant
who has the last clear chance to prevent the impending harm by the
exercise of due diligence.
-the principle of last clear chance is applicable only in the suit between
owners and drivers of colliding vehicles. This is the case on quasi-delict.
-it does not arise when a passenger demands responsibility from the
carrier to enforce its contractual obligation. This is the case in culpa
contractual.
-for it is inequitable to exempt the driver and its owner on the ground
that the other driver was likewise guilty of negligence.

Kabit system
-is an arrangement whereby a person who has been granted a
certificate a public convenience, allows other persons who owns
motor vehicles to operate them under his license for a fee or
percentage of the earning. Although the parties to disagreement are
not penalized by law, it is invariably recognized as being contrary to
public policy and therefore it is void and inexistent under Article
1409 of NCC.
-regardless who is the owner of the motor vehicle, the registered
owner is the operator of the same with respect to the public and with respect
to third person and as such the registered owner is directly and primarily
responsible for the consequences for the operation of the motor vehicle.
- legally, the owner-operator of record is the employer of the driver
without actual operator. Employer being considered merely as his agent.
-although registered owner is always liable, nevertheless the actual
operator can be held solidarily liable with owner because they are joint tort
feasors.

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-an employer- employee relationship shall be deemed to exist between

a jeepney owner and a driver under a boundary system arrangement. The
features which characterized the boundary system namely:
1. the driver is not receiving a fix wage but gets only the excess
of the amount of fares collected by him over the amount he pays
to the jeep owner.
2. the gasoline consumed by the jeep is for the account of the
driver are not sufficient to withdraw the relationship from that of
an employer-employee relationship.
-consequently, the jeepney owner is subsidiarily liable as employer
under article 103 of the revised penal code. (Magbuo vs. Bernardo)
-Article 349 on the Code of Commerce- only covers transportation on
land and water but it had been held to also cover transportation through air
because under article 1732 of the Civil Code, carrying or transporting of
passengers or goods, or both by air has been expressly included in the
definition of a common carrier.
-Under Article 1732, carrying of transporting passenger is included
when an airline company issues ticket to passenger confirmed for a
particular flight on a certain date, a contract of carriage arises. (Singapore
Airlines Limited Vs. Fernandez)
-A passenger has every right to expect that he be transported on the
flight and on that date. If he does not, then the carrier opens itself to a
breach of contract of carriage.

The nature of airlines contract of carriage partakes two types:

1. The contract to deliver the cargo and merchandise to its destination
2. Contract to transport passengers to their destination

-A business intended to serve the travelling public, primarily is imbued with

the public interest. Hence, the law governing common carriers imposes an
exacting standards:
-neglect or malfeasance of the carrier could predictably furnish bases for an
action for damages. (British Airways Vs CA)
- the court held that a contract of carriage is imbued with public interest and
requires common carrier to carry passengers safely as far as human
foresight can provide using the utmost diligence of a very cautious person
with due regard for all the circumstances. (PAL Vs CA)
-neglect or malfeasance of the carriers’ employee naturally gives rise to an
action for damages against common carrier.
-moral damages are recoverable damage suit predicated upon the breach of
contract of carriage only where the mishap results in the death of the

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passenger and it is proven that the carrier is guilty of fraud and bad faith
even if death has not occurred. (Morris Vs. CA)

Vigilance over goods

- What are the exempting causes? – Common carriers again from the
nature of their business and from reasons of public policy, are bound
to observe the extra ordinary diligence in the vigilance over the goods
and for the safety of the passengers transported by them according to
the circumstances of each case.
- Under article 1739 of the civil code, in order that the common carrier
may be exempted from the responsibility, the natural disaster must
have been the proximate and only cause of the loss. However, the
common carrier must exercise due diligence to prevent or minimize
the loss before, during and after the occurrence of flood, storm or
other natural disaster in order that these common carrier maybe
exempted for the liability for the loss, destruction or deterioration of
the goods. The same duty is incumbent in the common carrier in case
of the public enemy that is referred to in article 1734 (2) whether it is
an act of international or civil. Article 1734 provides the common
carrier are responsible for the loss, destruction or deterioration of the
goods, unless the same is due to the following causes only…(Please
see Article 1734 meaning in the codal)
Requirement in the absence of negligence in order to escape
responsibility – under article 1735, in all cases under article 1734, the act
of public enemy, act of omission, character of goods, and packing of goods,
order of authority, if the goods are lost, destroyed or deteriorated, the
common carriers are deemed to have been at fault or to have acted
negligently unless they observe the extra ordinary diligence as required
under article 1733.

When a common carrier can raise a fortuitous event to escape

liability? The following requisites must be present:
1. The cause of the unforeseen and the unexpected occurrence
and the failure of the debtor to comply with its obligation
must be independent of human will. In other words, it must
not be with the control of the person. It must be impossible to
foresee the even which constitutes kaso fortuito. If it can be
foreseen, it must be impossible to avoid. The occurrence must
surrendered it impossible for the debtor to fulfill his obligation
in the normal manner, and the obligor must be free from any
participation or the aggravation resulting to the creditor.
(Servando Vs. Philippine Steam Navigation)
Fortuitous event covers not only the acts of God but also acts of man. If
fortuitous event is proved, the carrier is absolved from liability. But that
must be remembered that the fortuitous event must not be concur with

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negligence otherwise it is no longer a defense. In other words, the fortuitous

event must be the sole element that be lied upon. There must also be
absence of delay, under article 1740 of NCC states that if the common
carrier negligently incurs delay in the transporting the goods and natural
disaster, he shall not free the common carrier from the responsibility.
According to Article 1747, if the delay is without just cause, the contract
limiting the common carriers’ liability cannot be availed of in case of loss or
deterioration of the goods. Thus, if there is an absence of delay, the contract
limiting the liability of the common carrier must be invoked. So there be no
delay and there must be no negligence in order to put up a defense of
fortuitous event.

What is the effect of negligently incurring delay in the transportation

of goods? – if the common carrier negligently incurs delay in transporting
the goods, the natural disaster shall not free such common carrier from
responsibility.
What is the effect in case of delay on account of strike or riot? An
agreement limiting the common carrier’s liability for delay on account of
strike or on account of riot is valid under article 1748. There must also be
due diligence to prevent or lessen the loss even if the loss, destruction or
deterioration of the goods should be caused by the character of the goods or
the faulty nature of the packing or the container. The common carrier must
still exercise due diligence in order to forestall or lessen the loss.
Should the common carrier exercise due diligence to exercise to
prevent or lessen the loss even if there is fortuitous even? Yes. The
common carrier must exercise due diligence to prevent or minimize the loss
before, during or after the occurrence of flood, storm, or other natural
disaster in order that the common carrier maybe exempted from the liability
of the loss, destruction or deterioration of the goods. The same duty is
incumbent upon the common carrier in case of an act of public enemy
whether international or otherwise.

In the case of fire, even if the fire where to be considered a natural disaster
within the meaning of article 1734 of the civil code, it is still required under
article 1739 that the natural disaster must have been the proximate and
only cause and that the common carrier must exercise due diligence to
prevent or minimize the loss before, during or after the occurrence of the
disaster. (Eastern Shipping Lines Vs. IAC)

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 Culpa Criminal- (negligence based on crime)

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