REPUBLIC OF THE PHILIPPINES National Capital Judicial Region Regional Trial Court Branch 12 Makati City

Enron Insurance Co., Plaintiff, -versusPhilippine Airlines and Cargador Macho Inc., Defendants. x------------------------x

Civil Case No.

2011

For: Sum of Money and Damages

DEFENDANT CARGADOR MACHO'S ANSWER TO COMPLAINT

complaint filed by Plaintiff Enron Insurance Co.(Enron) and admits, denies and alleges as follows:

Introduction

1.

Cargador Macho Inc. entered into a management contract with NAIA 2 to be an Arrastre Operator to handle all the cargoes brought by different

airlines into the country.

2.

Paragraph 8 of the Management contract, where pertinent provides:

8.) It is further understood and strictly agreed that Cargador Macho Inc. will only make an official receipt of the cargoes without further exhaustive inspection if it appears on the outside that the shipment does not have any physical defects. However, in the event that an officer discharged to inspect the shipment by the airline company finds a defect in its physical condition which includes, but is not limited the and to, dents, scratches, of that holes and other cargo be signs will of be

damage, withheld

official the

receipt of

particular will not

custody

which

immediately

transferred to Cargador Macho Inc., unless the following conditions are complied with:

1. That a representative of the airline company must make his own inspection of the damaged cargo.

2. That the airline representative must sign a waiver indicating the fact that there was already physical damage to the cargo prior to its discharge of custody to Cargador Macho Inc.

Answer to ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

3.

Referring

to

paragraphs

to

3,

Cargador

admits all allegations therein. 4. Referring to paragraphs 4 to 6, Cargador no information or knowledge sufficient to form a wellfounded belief as to the truth to the material

averment of the facts alleged therein. 5. Referring to paragraph 7, Cargador admits that a Philippine Airlines cargo plane arrived on 24 July, 2010. However, Cargador denies that the cargo plane arrived in NAIA 3 as all Philippine Airlines aircraft arrivals are handled in NAIA 2 terminals. Cargador further alleges that all the other

cargoes, EXCEPT for one large box, were officially released to its custody handled by its officer-in-

charge Mang Tomas. An official receipt of all the cargoes in good condition was made by Mang Tomas as well as a report about one large box which had a dent. A copy of the receipt and report are attached as Annex A and Annex B, respectively.

6.

Referring to paragraph 8, Cargador denies that it received two large boxes. Cargador alleges that only one large box that was in good condition was officially received by Mang Tomas into Cargadors custody and safely brought to its warehouse while the other large box which was dented remained at the airport hangar for further inspection and from

Cargador

Macho

representatives

Philippine

Airlines representatives. Cargador further alleges that in compliance to paragraph 8 of its management agreement with NAIA 2, Mang Tomas made a Philippine Airlines representative sign a waiver indicating

that one large box already had a dent prior to the discharge of its custody to Cargador.

7.

Referring

to

paragraph

9,

Cargador

admits,

without prejudice, that the contents of the dented large box were indeed totally damaged.

8.

Referring

to

paragraph

13,

Cargador

specifically denies that it had custody of the two large boxes containing the lighting fixtures when only one large box in good condition was officially turned over as the other large box with a dent was withheld from being turned over because it had to be further inspected, therefore, the custody of

which still remained with Philippine Airlines.

9.

Referring

to

paragraph

14,

Cargador

admits

that it ignored the letters it received from Enron for it was Cargadors belief that it had no

liability to Enron for the payment of One Million Pesos (Php 1,000,000.00).

Answer to the Second Cause of Action 10. Referring to paragraph 22, Cargador

incorporates by reference the admissions, denials and allegations of herein paragraphs 1 through 7, inclusive of this answer.

11.

Referring denies box

to that which

paragraph it had

23, custody the

Cargador of the

specifically dented large

contained

totally

damaged lighting fixtures. Cargador further alleges that the box in question was already damaged prior to its turnover.

12.

Referring to paragraph 24, Cargador denies that

it caused total damage and loss to one of the boxes of the cargo and denies and solidary liability with Philippine Airlines for the reason that Cargador

cannot be held liable for the subject box for it was already damaged before its custody was turned over to Cargador.

13.

Referring to paragraph 25, Caragador denies the

allegations thereof and affirmatively alleges that its refusal to pay is justified because of the lack of liability on Cargadors part.

Answer to the Third Cause of Action

14.

Referring

to

paragraph

26,

Cargador

incorporates by reference the admissions, denials and allegations of herein paragraphs 1 through 11, inclusive of this answer.

15. that

Referring it

to

paragraph

27,

Cargador

alleges by the

observed all the

extraordinary cargoes

diligence from

inspecting

unloaded

Philippine Airlines cargo plane on 24 July, 2010.

However, it cannot be denied that after inspection and prior to the turnover of custody of the

cargoes, it was found out that one of the cargoes was already damaged. In accordance with the

Management Contract paragraph 8, Cargador acted in good faith to determine that the box was actually damaged prior to the official receipt of officerin-charge Mang Tomas of all the cargoes.

Undoubtedly, even if Cargador exercised utmost care and extraordinary diligence, the fact remains that the cargo box was already damaged even before

Cargador had custody of it. Therefore, liability from the total damage and loss of the lighting

fixtures should not be burdened upon Cargador for it can only be held liable for things that were damaged while under its custody and not for things damaged prior to its actual custody.

Answer to the Fourth Cause of Action

16.

Referring to paragraph 28, Cargador denies the

allegations thereof.

First Affirmative Defense (Lack of Cause of Action)

17.

The

Complaint, alleged

and

each

purported to

cause

of

action

therein,

fails

state

facts

sufficient to constitute a cause of action against Cargador.

Second

Affirmative

Defense

(Paragraph

of

the

Management Contract)

18.

Paragraph 8 of the Management Contract between

NAIA 2 and Cargador pertains to a situation which relieves Cargador from liability in the event that a cargo, prior to its discharge into Cargadors custody, is found to have been already damaged. This agreement is binding to all common carriers using NAIA 2 and Cargadors services and therefore

has the effect of law between the parties affected by it. This particular provision exculpates

Cargador from any liability in the complaint filed by plaintiff Enron. Third Affirmative Defense (Extent of Liability of an Arrastre Operator) 19. The relationship between is akin the to the consignee that owner and

the arrastre operator between shipped between the consignee and

existing of or In the that the

and/or common a

goods a

the and

carrier,

depositor of

warehouseman. its

performance

obligations,

an arrastre operator should observe the same degree of diligence as that required of a common carrier and a warehouseman. discharged Being the custodian a of the

goods

from

vessel,

an arrastre operators duty is to take good care of the goods and to turn them over to the party

entitled to their possession. However, the records show that the cargo in this instance was already

damaged prior to its delivery to the consignee and even prior to its turnover of custody to Cargador. Therefore divesting Cargador from liability because the records state that it was already in a bad condition when it was discharged to them.

Prayer WHEREFORE, Cargador prays for judgment as follows:

1. For

the court to dismiss Enrons complaint with

prejudice; 2. That Enrons excessive prayer for attorneys fees be stricken and summarily denied; 3. For Cargadors costs of suit incurred herein; and 4. For such other, further or different relief as the Court may deem just and proper.

Makati City, Philippines, 17 December 2010 . Reyes and Associates Law Office Counsel for the Plaintiff

203 Net One Center, Fort Bonifacio, Taguig City

By: Kim Janus O. Villanueva Roll No. 6969

Republic of the Philippines) City of Makati ) SS.

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

I, JOKELANG E. YAN, of legal age, Filipino, with office address at 123 Perea St., Makati City, being duly sworn in accordance with law, depose and state:

1. I am the Manager of Enron Insurance Co. and, in that official capacity, I am authorized under Enron Insurance Co. Board Resolution No. 87 dated September 7, 2005 to sign this Verification and Certification Against Forum Shopping. A copy of the said Board Resolution is attached as Annex L ;

2. In my capacity as such, I have caused the preparation of the foregoing COMPLAINT filed with this Honorable Court;

3. I have read and understood the contents of this pleading and that the same are true and correct of my own knowledge and on the basis of the authentic records in the possession of the Enron Insurance Co.;

4. If I should learn that the same or similar action or claim has been filed or is pending, I shall report this fact within five (5) days therefrom to this Honorable Court;

IN WITNESS HEREOF, I have hereunto affixed my hand this __ day of _____ 2010 at Makati City.

JOKELANG E. YAN Affiant SUBSCRIBED AND SWORN to before me at Makati City, Philippines this __ day of ______ 2010. Notary Public