NATIONAL STEEL CORPORATION v.

COURT OF APPEALS
G.R. No. 112287 December 12, 1997
Panganiban, J.
Doctrine:
The stringent provisions of the Civil Code on common carriers
protecting the general public cannot justifiably be applied to a
private carrier.
Facts:
Plaintiff National Steel Corporation (NSC) as Charterer and
defendant Vlasons Shipping, Inc. (VSI) as Owner, entered into a
Contract of Voyage Charter Hire whereby NSC hired VSIs vessel,
the MV Vlasons I to make one voyage to load steel products at
Iligan City and discharge them at North Harbor, Manila. The
handling, loading and unloading of the cargoes were the
responsibility of the Charterer.
The skids of tinplates and hot rolled sheets shipped were
allegedly found to be wet and rusty. Plaintiff, alleging negligence,
filed a claim for damages against the defendant who denied
liability claiming that the MV Vlasons I was seaworthy in all
respects for the carriage of plaintiffs cargo; that said vessel was
not a common carrier inasmuch as she was under voyage
charter contract with the plaintiff as charterer under the charter
party; that in the course its voyage, the vessel encountered very
rough seas.
Issue:
Whether or not the provisions of the Civil Code on common
carriers pursuant to which there exists a presumption of
negligence against the common carrier in case of loss or damage
to the cargo are applicable to a private carrier.

Held:
No. In a contract of private carriage, the parties may freely
stipulate their duties and obligations which perforce would be
binding on them. Unlike in a contract involving a common carrier,
private carriage does not involve the general public. Hence, the
stringent provisions of the Civil Code on common carriers
protecting the general public cannot justifiably be applied to a
ship transporting commercial goods as a private carrier.
It has been held that the true test of a common carrier is the
carriage of passengers or goods, provided it has space, for all who
opt to avail themselves of its transportation service for a fee
[Mendoza vs. Philippine Airlines, Inc., 90 Phil. 836, 842-843
(1952)]. A carrier which does not qualify under the above test is
deemed a private carrier. Generally, private carriage is
undertaken by special agreement and the carrier does not hold
himself out to carry goods for the general public.
Because the MV Vlasons I was a private carrier, the ship owners
obligations are governed by the foregoing provisions of the Code
of Commerce and not by the Civil Code which, as a general rule,
places the prima facie presumption of negligence on a common
carrier.
Loadstar Shipping Co., Inc. vs Court of Appeals
Posted: November 25, 2012 in Transportation Law
Tags: Case Digest
Facts:
On 19 November 1984, LOADSTAR received on board a) 705 bales
of lawanit hardwood; b) 27 boxes and crates of tilewood
assemblies and the others ;and c) 49 bundles of mouldings R & W
(3) Apitong Bolidenized. On its way to Manila from the port of
Nasipit, Agusan del Norte, the vessel, along with its cargo, sank
off Limasawa Island. As a result of the total loss of its shipment,
the consignee made a claim with LOADSTAR which, however,

ignored the same. MIC filed a complaint against LOADSTAR and

PGAI, alleging that the sinking of the vessel was due to the fault
and negligence of LOADSTAR and its employees. LOADSTAR
denied any liability for the loss of the shippers goods and claimed
that sinking of its vessel was due to force majeure. LOADSTAR
submits that the vessel was a private carrier because it was not
issued certificate of public convenience, it did not have a regular
trip or schedule nor a fixed route, and there was only one
shipper, one consignee for a special cargo.
Issues:
(1) Is the M/V Cherokee a private or a common carrier?
(2) Did LOADSTAR observe due and/or ordinary diligence in these
premises.
Held:
Petition is dismissed:
SC hold that LOADSTAR is a common carrier. It is not necessary
that the carrier be issued a certificate of public convenience, and
this public character is not altered by the fact that the carriage of
the goods in question was periodic, occasional, episodic or
unscheduled. The bills of lading failed to show any special
arrangement, but only a general provision to the effect that the
M/VCherokee was a general cargo carrier. 14 Further, the bare
fact that the vessel was carrying a particular type of cargo for one
shipper, which appears to be purely coincidental, is not reason
enough to convert the vessel from a common to a private carrier,
especially where, as in this case, it was shown that the vessel was
also carrying passengers. Under Article 1732 of the Civil Code the
Civil Code defines common carriers in the following terms:
Art. 1732. Common carriers are persons, corporations, firms or
associations engaged in the business of carrying or transporting

passengers or goods or both, by land, water, or air for

compensation, offering their services to the public.
On to the second assigned error, we find that the M/V Cherokee
was not seaworthy when it embarked on its voyage on 19
November 1984. The vessel was not even sufficiently manned at
the time. For a vessel to be seaworthy, it must be adequately
equipped for the voyage and manned with a sufficient number of
competent officers and crew. The failure of a common carrier to
maintain in seaworthy condition its vessel involved in a contract
of carriage is a clear breach of its duty.
PHILIPPINE HOME ASSURANCE CORPORATION, petitioner,
vs. COURT OF APPEALS and EASTERN SHIPPING LINES,
INC., respondents.
DECISION
KAPUNAN, J.:
Eastern Shipping Lines, Inc. (ESLI) loaded on board SS Eastern
Explorer in Kobe, Japan, the following shipment for carriage to
Manila and Cebu, freight pre-paid and in good order and
condition, viz: (a) two (2) boxes internal combustion engine parts,
consigned to William Lines, Inc. under Bill of Lading No. 042283;
(b) ten (10) metric tons (334 bags) ammonium chloride,
consigned to Orca's Company under Bill of Lading No. KCE-12; (c)
two hundred (200) bags Glue 300, consigned to Pan Oriental
Match Company under Bill of Lading No. KCE-8; and (d) garments,
consigned to Ding Velayo under Bills of Lading Nos. KMA-73 and
KMA-74.
While the vessel was off Okinawa, Japan, a small flame was
detected on the acetylene cylinder located in the accommodation
area near the engine room on the main deck level. As the crew
was trying to extinguish the fire, the acetylene cylinder suddenly

exploded sending a flash of flame throughout the accommodation

area, thus causing death and severe injuries to the crew and
instantly setting fire to the whole superstructure of the
vessel. The incident forced the master and the crew to abandon
the ship.
Thereafter, SS Eastern Explorer was found to be a constructive
total loss and its voyage was declared abandoned.
Several hours later, a tugboat under the control of Fukuda
Salvage Co. arrived near the vessel and commenced to tow the
vessel for the port of Naha, Japan.
Fire fighting operations were again conducted at the said
port. After the fire was extinguished, the cargoes which were
saved were loaded to another vessel for delivery to their original
ports of destination. ESLI charged port. After the fire was
extinguished, the cargoes which were saved were loaded to
another vessel for delivery to their original ports of
destination. ESLI charged the consignees several amounts
corresponding to additional freight and salvage charges, as
follows: (a) for the goods covered by Bill of Lading No. 042283,
ESLI charged the consignee the sum of P1,927.65, representing
salvage charges assessed against the goods; (b) for the goods
covered by Bill of Lading No. KCE-12, ESLI charged the consignee
the sum of P2,980.64 for additional freight and P826.14 for
salvage charges against the goods; (c) for the goods covered by
Bill of Lading No. KCE-8, ESLI charged the consignee the sum of
P3,292.26 for additional freight and P4,130.68 for salvage charges
against the goods; and (d) for the goods under Bills of Lading Nos.
KMA-73 and KMA-74, ESLI charged the consignee the sum of
P8,337.06 for salvage charges against the goods.

The charges were all paid by Philippine Home Assurance

Corporation (PHAC) under protest for and in behalf of the
consignees.
PHAC, as subrogee of the consignees, thereafter filed a
complaint before the Regional Trial Court of Manila, Branch 39,
against ESLI to recover the sum paid under protest on the ground
that the same were actually damages directly brought about by
the fault, negligence, illegal act and/or breach of contract of ESLI.
In its answer, ESLI contended that it exercised the diligence
required by law in the handling, custody and carriage of the
shipment; that the fire was caused by an unforeseen event; that
the additional freight charges are due and demandable pursuant
to the Bill of Lading;[1] and that salvage charges are properly
collectible under Act No. 2616, known as the Salvage Law.
The trial court dismissed PHAC's complaint and ruled in favor
of ESLI ratiocinating thus:
The question to be resolved is whether or not the fire on the
vessel which was caused by the explosion of an acetylene
cylinder loaded on the same was the fault or negligence of the
defendant.
Evidence has been presented that the SS "Eastern Explorer"
was a seaworthy vessel (Deposition of Jumpei Maeda, October 23,
1980, p. 3) and before the ship loaded the Acetylene Cylinder No.
NCW 875, the same has been tested, checked and examined and
was certified to have complied with the required safety measures
and standards (Deposition of Senjei Hayashi, October 23, 1980,
pp. 2-3). When the fire was detected by the crew, fire fighting
operations was immediately conducted but due to the explosion
of the acetylene cylinder, the crew were unable to contain the fire
and had to abandon the ship to save their lives and were saved
from drowning by passing vessels in the vicinity. The burning of

the vessel rendering it a constructive total loss and incapable of

pursuing its voyage to the Philippines was, therefore, not the fault
or negligence of defendant but a natural disaster or calamity
which nobody would like to happen. The salvage operations
conducted by Fukuda Salvage Company (Exhibits "4-A" and "6-A")
was perfectly a legal operation and charges made on the goods
recovered were legitimate charges.
Act No. 2616, otherwise known as the Salvage Law, is thus
applicable to the case at bar. Section 1 of Act No. 2616 states:
"Section 1. When in case of shipwreck, the vessel or its cargo
shall be beyond the control of the crew, or shall have been
abandoned by them, and picked up and conveyed to a safe place
by other persons, the latter shall be entitled to a reward for the
salvage.
Those who, not being included in the above paragraph, assist in
saving a vessel or its cargo from shipwreck, shall be entitled to
like reward."
In relation to the above provision, the Supreme Court has ruled in
Erlanger & Galinger v. Swedish East Asiatic Co., Ltd., 34 Phil. 178,
that three elements are necessary to a valid salvage claim,
namely (a) a marine peril (b) service voluntarily rendered when
not required as an existing duty or from a special contract and (c)
success in whole or in part, or that the service rendered
contributed to such success.
The above elements are all present in the instant case. Salvage
charges may thus be assessed on the cargoes saved from the
vessel. As provided for in Section 13 of the Salvage Law, "The
expenses of salvage, as well as the reward for salvage or
assistance, shall be a charge on the things salvaged or their
value." In Manila Railroad Co. v. Macondray Co., 37 Phil. 583, it
was also held that "when a ship and its cargo are saved together,

the salvage allowance should be charged against the ship and

cargo in the proportion of their respective values, the same as in
a case of general average . . ." Thus, the "compensation to be
paid by the owner of the cargo is in proportion to the value of the
vessel and the value of the cargo saved." (Atlantic Gulf and Pacific
Co. v. Uchida Kisen Kaisha, 42 Phil. 321). (Memorandum for
Defendant, Records, pp. 212-213).
With respect to the additional freight charged by defendant
from the consignees of the goods, the same are also validly
demandable.
As provided by the Civil Code:
"Article 1174. Except in cases expressly specified by law, or when
it is otherwise declared by stipulation, or when the nature of the
obligation require the assumption or risk, no person shall be
responsible for those events which could not be foreseen, or
which though foreseen, were inevitable."
"Article 1266. The debtor in obligations to do shall also be
released when the prestation becomes legally or physically
impossible without the fault of the obligor."
The burning of "EASTERN EXPLORER" while off Okinawa
rendered it physically impossible for defendant to comply with its
obligation of delivering the goods to their port of destination
pursuant to the contract of carriage. Under Article 1266 of the
Civil Code, the physical impossibility of the prestation
extinguished defendant's obligation.
It is but legal and equitable for the defendant therefore, to
demand additional freight from the consignees for forwarding the
goods from Naha, Japan to Manila and Cebu City on board another
vessel, the "EASTERN MARS." This finds support under Article 844
of the Code of Commerce which provides as follows:

"Article 844. A captain who may have taken on board the goods
saved from the wreck shall continue his course to the port of
destination; and on arrival should deposit the same, with judicial
intervention at the disposal of their legitimate owners. x x x
The owners of the cargo shall defray all the expenses of this
arrival as well as the payment of the freight which, after taking
into consideration the circumstances of the case, may be fixed by
agreement or by a judicial decision."
Furthermore, the terms and conditions of the Bill of Lading
authorize the imposition of additional freight charges in case of
forced interruption or abandonment of the voyage. At the dorsal
portion of the Bills of Lading issued to the consignees is this
stipulation:
"12. All storage, transshipment, forwarding or other disposition of
cargo at or from a port of distress or other place where there has
been a forced interruption or abandonment of the voyage shall be
at the expense of the owner, shipper, consignee of the goods or
the holder of this bill of lading who shall be jointly and severally
liable for all freight charges and expenses of every kind
whatsoever, whether payable in advance or not that may be
incurred by the cargo in addition to the ordinary freight, whether
the service be performed by the named carrying vessel or by
carrier's other vessels or by strangers. All such expenses and
charges shall be due and payable day by day immediately when
they are incurred."
The bill of lading is a contract and the parties are bound by its
terms (Govt. of the Philippine Islands vs. Ynchausti and Co., 40
Phil. 219). The provision quoted is binding upon the consignee.
Defendant therefore, can validly require payment of additional
freight from the consignee. Plaintiff can not thus recover the

additional freight paid by the consignee to

defendant. (Memorandum for Defendant, Record, pp. 215-216). [2]
On appeal to the Court of Appeals, respondent court affirmed
the trial court's findings and conclusions, [3] hence, the present
petition for review before this Court on the following errors:
I. THE RESPONDENT COURT ERRONEOUSLY ADOPTED WITH
APPROVAL THE TRIAL COURT'S FINDINGS THAT THE BURNING OF
THE SS "EASTERN EXPLORER," RENDERING IT A CONSTRUCTIVE
TOTAL LOSS, IS A NATURAL DISASTER OR CALAMITY WHICH
NOBODY WOULD LIKE TO HAPPEN, DESPITE EXISTING
JURISPRUDENCE TO THE CONTRARY.
II. THE RESPONDENT COURT ARBITRARILY RULED THAT THE
BURNING OF THE SS "EASTERN EXPLORER" WAS NOT THE FAULT
AND NEGLIGENCE OF RESPONDENT EASTERN SHIPPING LINES.
III. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION IN RULING THAT DEFENDANT HAD EXERCISED THE
EXTRAORDINARY DILIGENCE IN THE VIGILANCE OVER THE GOODS
AS REQUIRED BY LAW.
IV. THE RESPONDENT COURT ARBITRARILY RULED THAT THE
MARINE NOTE OF PROTEST AND STATEMENT OF FACTS ISSUED BY
THE VESSEL'S MASTER ARE NOT HEARSAY DESPITE THE FACT
THAT THE VESSEL'S MASTER, CAPT. LICAYLICAY WAS NOT
PRESENTED IN COURT, WITHOUT EXPLANATION WHATSOEVER
FOR HIS NON-PRESENTATION, THUS, PETITIONER WAS DEPRIVED
OF ITS RIGHT TO CROSS-EXAMINE THE AUTHOR THEREOF.
V. THE RESPONDENT COURT ERRONEOUSLY ADOPTED WITH
APPROVAL THE TRIAL COURT'S CONCLUSION THAT THE EXPENSES
OR AVERAGES INCURRED IN SAVING THE CARGO CONSTITUTE
GENERAL AVERAGE.

VI. THE RESPONDENT COURT ERRONEOUSLY ADOPTED THE TRIAL

COURT'S RULING THAT PETITIONER WAS LIABLE TO RESPONDENT
CARRIER FOR ADDITIONAL FREIGHT AND SALVAGE CHARGES. [4]
It is quite evident that the foregoing assignment of errors
challenges the findings of fact and the appreciation of evidence
made by the trial court and later affirmed by respondent
court. While it is a well-settled rule that only questions of law
may be raised in a petition for review under Rule 45 of the Rules
of Court, it is equally well-settled that the same admits of the
following exceptions, namely: (a) when the conclusion is a finding
grounded entirely on speculation, surmises or conjectures; (b)
when the inference made is manifestly mistaken, absurd or
impossible; (c) where there is a grave abuse of discretion; (d)
when the judgment is based on a misapprehension of facts; (e)
when the findings of fact are conflicting; (f) when the Court of
Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant
and appellee; (g) when the findings of the Court of Appeals are
contrary to those of the trial court; (h) when the findings of fact
are conclusions without citation of specific evidence on which
they are based; (i) when the facts set forth in the petition as well
as in the petitioners' main and reply briefs are nor disputed by the
respondents; and (j) when the finding of fact of the Court of
Appeals is premised on the supposed absence of evidence and is
contradicted by the evidence on record. [5] Thus, if there is a
showing, as in the instant case, that the findings complained of
are totally devoid of support in the records, or that they are so
glaringly erroneous as to constitute grave abuse of discretion, the
same may be properly reviewed and evaluated by this Court.
It is worthy to note at the outset that the goods subject of the
present controversy were neither lost nor damaged in transit by
the fire that razed the carrier. In fact, the said goods were all
delivered to the consignees, even if the transshipment took

longer than necessary. What is at issue therefore is not whether

or not the carrier is liable for the loss, damage, or deterioration of
the goods transported by them but who, among the carrier,
consignee or insurer of the goods, is liable for the additional
charges or expenses incurred by the owner of the ship in the
salvage operations and in the transshipment of the goods via a
different carrier.
In absolving respondent carrier of any liability, respondent
Court of Appeals sustained the trial court's finding that the fire
that gutted the ship was a natural disaster or calamity. Petitioner
takes exception to this conclusion and we agree.
In our jurisprudence, fire may not be considered a natural
disaster or calamity since it almost always arises from some act of
man or by human means. It cannot be an act of God unless
caused by lightning or a natural disaster or casualty not
attributable to human agency.[6]
In the case at bar, it is not disputed that a small flame was
detected on the acetylene cylinder and that by reason thereof,
the same exploded despite efforts to extinguish the fire. Neither
is there any doubt that the acetylene cylinder, obviously fully
loaded, was stored in the accommodation area near the engine
room and not in a storage area considerably far, and in a safe
distance, from the engine room. Moreover, there was no showing,
and none was alleged by the parties, that the fire was caused by
a natural disaster or calamity not attributable to human
agency. On the contrary, there is strong evidence indicating that
the acetylene cylinder caught fire because of the fault and
negligence of respondent ESLI, its captain and its crew.
First, the acetylene cylinder which was fully loaded should not
have been stored in the accommodation area near the engine
room where the heat generated therefrom could cause the

acetylene cylinder to explode by reason of spontaneous

combustion. Respondent ESLI should have easily foreseen that
the acetylene cylinder, containing highly inflammable material,
was in a real danger of exploding because it was stored in close
proximity to the engine room.
Second, respondent ESLI should have known that by storing
the acetylene cylinder in the accommodation area supposed to be
reserved for passengers, it unnecessarily exposed its passengers
to grave danger and injury. Curious passengers, ignorant of the
danger the tank might have on humans and property, could have
handled the same or could have lighted and smoke cigarettes
while repairing in the accommodation area.
Third, the fact that the acetylene cylinder was checked, tested
and examined and subsequently certified as having complied with
the safety measures and standards by qualified experts [7] before it
was loaded in the vessel only shows to a great extent that
negligence was present in the handling of the acetylene cylinder
after it was loaded and while it was on board the ship. Indeed,
had the respondent and its agents not been negligent in storing
the acetylene cylinder near the engine room, then that same
would not have leaked and exploded during the voyage.
Verily, there is no merit in the finding of the trial court to which
respondent court erroneously agreed that the fire was not fault or
negligence of respondent but a natural disaster or calamity. The
records are simply wanting in this regard.
Anent petitioner's objection to the admissibility of Exhibits "4"
and "5", the Statement of Facts and the Marine Note of Protest
issued by Captain Tiburcio A. Licaylicay, we find the same
impressed with merit because said documents are hearsay
evidence. Capt. Licaylicay, Master of S.S. Eastern Explorer who
issued the said documents, was not presented in court to testify

to the truth of the facts he stated therein; instead, respondent

ESLI presented Junpei Maeda, its Branch Manager in Tokyo and
Yokohama, Japan, who evidently had no personal knowledge of
the facts stated in the documents at issue. It is clear from Section
36, Rule 130 of the Rules of Court that any evidence, whether oral
or documentary, is hearsay if its probative value is not based on
the personal knowledge of the witness but on the knowledge of
some other person not on the witness stand. Consequently,
hearsay evidence, whether objected to or not, has no probative
value unless the proponent can show that the evidence falls
within the exceptions to the hearsay evidence rule. [8] It is
excluded because the party against whom it is presented is
deprived of his right and opportunity to cross-examine the
persons to whom the statements or writings are attributed.
On the issue of whether or not respondent court committed an
error in concluding that the expenses incurred in saving the cargo
are considered general average, we rule in the affirmative. As a
rule, general or gross averages include all damages and expenses
which are deliberately caused in order to save the vessel, its
cargo, or both at the same time, from a real and known risk.
[9]
While the instant case may technically fall within the purview of
the said provision, the formalities prescribed under Article
813[10] and 814[11] of the Code of Commerce in order to incur the
expenses and cause the damage corresponding to gross average
were not complied with. Consequently, respondent ESLI's claim
for contribution from the consignees of the cargo at the time of
the occurrence of the average turns to naught.
Prescinding from the foregoing premises, it indubitably follows
that the cargo consignees cannot be made liable to respondent
carrier for additional freight and salvage charges. Consequently,
respondent carrier must refund to herein petitioner the amount it
paid under protest for additional freight and salvage charges in
behalf of the consignee.

WHEREFORE, the judgment appealed from is hereby

REVERSED and SET ASIDE. Respondent Eastern Shipping Lines,
Inc. is ORDERED to return to petitioner Philippine Home Assurance
Corporation the amount it paid under protest in behalf of the
consignees herein.
SO ORDERED.
HERMINIO L. NOCUM, plaintiff-appellee,
vs.
LAGUNA TAYABAS BUS COMPANY, defendant-appellant.
Fernando M. Mangubat and Felimon H. Mendoza for plaintiff-appellee.
Domingo E. de Lara and Associates for defendant-appellant.
BARREDO, J.:
Appeal of the Laguna Tayabas Bus Co., defendant in the Court below, from
a judgment of the said court (Court of First Instance of Batangas) in its Civil
Case No. 834, wherein appellee Herminio L. Nocum was plaintiff,
sentencing appellant to pay appellee the sum of P1,351.00 for actual
damages and P500.00 as attorney's fees with legal interest from the filing
of the complaint plus costs. Appellee, who was a passenger in appellant's
Bus No. 120 then making a trip within the barrio of Dita, Municipality of Bay,
Laguna, was injured as a consequence of the explosion of firecrackers,
contained in a box, loaded in said bus and declared to its conductor as
containing clothes and miscellaneous items by a co-passenger. The
findings of fact of the trial court are not assailed. The appeal is purely on
legal questions.
Appellee has not filed any brief. All that We have before Us is appellant's
brief with the following assignment of errors:
I
BASED ON THE FACTS THE LOWER COURT FOUND AS
ESTABLISHED, IT ERRED AS A MATTER OF LAW IN NOT

ABSOLVING APPELLANT FROM LIABILITY RESULTING FROM

THE EXPLOSION OF FIRECRACKERS CONTAINED IN A
PACKAGE, THE CONTENTS OF WHICH WERE
MISREPRESENTED BY A PASSENGER.
II
THE LOWER COURT ERRED, AS A MATTER OF LAW, IN
AWARDING DAMAGES WITH LEGAL INTEREST IN FAVOR OF
THE APPELLEE.
III
THE LOWER COURT ERRED IN NOT DISMISSING THE
COMPLAINT, WITH COSTS AGAINST THE APPELLEE.
Upon consideration of the points raised and discussed by appellant, We
find the appeal to be well taken.
The main basis of the trial court's decision is that appellant did not observe
the extraordinary or utmost diligence of a very cautious person required by
the following articles of the Civil Code:
ART. 1733. Common carriers, from the nature of their business and
for 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 the circumstances
of each case.
Such extraordinary diligence in the vigilance over the goods is further
expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while
the extraordinary diligence for the safety of the passengers is further
set forth in articles 1755 and 1756.
ART. 1755. A common carrier is 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.
ART 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755.
Analyzing the evidence presented by the parties, His Honor found:
According to Severino Andaya, a witness for the plaintiff, a man with
a box went up the baggage compartment of the bus where he already
was and said box was placed under the seat. They left Azcarraga at
about 11:30 in the morning and when the explosion occurred, he was
thrown out. PC investigation report states that thirty seven (37)
passengers were injured (Exhibits "O" and "2").
The bus conductor, Sancho Mendoza, testified that the box belonged
to a passenger whose name he does not know and who told him that
it contained miscellaneous items and clothes. He helped the owner in
loading the baggage which weighed about twelve (12) kilos and
because of company regulation, he charged him for it twenty-five
centavos (P0.25). From its appearance there was no indication at all
that the contents were explosives or firecrackers. Neither did he open
the box because he just relied on the word of the owner.
Dispatcher Nicolas Cornista of defendant company corroborrated the
testimony of Mendoza and he said, among other things, that he was
present when the box was loaded in the truck and the owner agreed
to pay its fare. He added that they were not authorized to open the
baggages of passengers because instruction from the management
was to call the police if there were packages containing articles which
were against regulations.
xxx

xxx

xxx

There is no question that Bus No. 120 was road worthy when it left its
Manila Terminal for Lucena that morning of December 5, 1960. The
injuries suffered by the plaintiff were not due to mechanical defects
but to the explosion of firecrackers inside the bus which was loaded
by a co-passenger.
... Turning to the present case, it is quite clear that extraordinary or
utmost diligence of a very cautious person was not observed by the
defendant company. The service manual, exhibits "3" and "3-A,"
prohibits the employees to allow explosives, such as dynamite and
firecrackers to be transported on its buses. To implement this
particular rule for 'the safety of passengers, it was therefore
incumbent upon the employees of the company to make the proper
inspection of all the baggages which are carried by the passengers.
But then, can it not be said that the breach of the contract was due to
fortuitous event? The Supreme Court in the case of Lasam vs. Smith,
45 Phil. 657, quoted Escriche's definition of caso fortuito as "an
unexpected event or act of God which could neither be foreseen nor
resisted, such as floods, torrents, shipwrecks, conflagrations,
lightning, compulsions, insurrections, destructions of buildings by
unforeseen accidents and other occurrences of a similar nature." In
other words, the cause of the unexpected event must be independent
of the will of man or something which cannot be avoided. This cannot
be said of the instant case. If proper and rigid inspection were
observed by the defendant, the contents of the box could have been
discovered and the accident avoided. Refusal by the passenger to
have the package opened was no excuse because, as stated by
Dispatcher Cornista, employees should call the police if there were
packages containing articles against company regulations. Neither
was failure by employees of defendant company to detect the
contents of the packages of passengers because like the rationale in
the Necesito vs. Paras case (supra), a passenger has neither choice
nor control in the exercise of their discretion in determining what are

inside the package of co-passengers which may eventually prove

fatal.
We cannot agree. No doubt, the views of His Honor do seem to be in line
with the reasons that the Code Commission had for incorporating the
above-quoted provisions in its draft of the Civil Code. Indeed, in approving
the said draft, Congress must have concurred with the Commission that by
requiring the highest degree of diligence from common carriers in the safe
transport of their passengers and by creating a presumption of negligence
against them, the recklessness of their drivers which is a common sight
even in crowded areas and, particularly, on the highways throughout the
country may, somehow, if not in a large measure, be curbed. We are not
convinced, however, that the exacting criterion of said provisions has not
been met by appellant in the circumstances of this particular case.
It is undisputed that before the box containing the firecrackers were allowed
to be loaded in the bus by the conductor, inquiry was made with the
passenger carrying the same as to what was in it, since its "opening ... was
folded and tied with abaca." (Decision p. 16, Record on Appeal.) According
to His Honor, "if proper and rigid inspection were observed by the
defendant, the contents of the box could have been discovered and the
accident avoided. Refusal by the passenger to have the package opened
was no excuse because, as stated by Dispatcher Cornista, employees
should call the police if there were packages containing articles against
company regulations." That may be true, but it is Our considered opinion
that the law does not require as much. Article 1733 is not as unbending as
His Honor has held, for it reasonably qualifies the extraordinary diligence
required of common carriers for the safety of the passengers transported
by them to be "according to all the circumstances of each case." In fact,
Article 1755 repeats this same qualification: "A common carrier is bound to
carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with due
regard for all the circumstances."

In this particular case before Us, it must be considered that while it is true
the passengers of appellant's bus should not be made to suffer for
something over which they had no control, as enunciated in the decision of
this Court cited by His Honor,1 fairness demands that in measuring a
common carrier's duty towards its passengers, allowance must be given to
the reliance that should be reposed on the sense of responsibility of all the
passengers in regard to their common safety. It is to be presumed that a
passenger will not take with him anything dangerous to the lives and limbs
of his co-passengers, not to speak of his own. Not to be lightly considered
must be the right to privacy to which each passenger is entitled. He cannot
be subjected to any unusual search, when he protests the innocuousness
of his baggage and nothing appears to indicate the contrary, as in the case
at bar. In other words, inquiry may be verbally made as to the nature of a
passenger's baggage when such is not outwardly perceptible, but beyond
this, constitutional boundaries are already in danger of being transgressed.
Calling a policeman to his aid, as suggested by the service manual invoked
by the trial judge, in compelling the passenger to submit to more rigid
inspection, after the passenger had already declared that the box contained
mere clothes and other miscellaneous, could not have justified invasion of
a constitutionally protected domain. Police officers acting without judicial
authority secured in the manner provided by law are not beyond the pale of
constitutional inhibitions designed to protect individual human rights and
liberties. Withal, what must be importantly considered here is not so much
the infringement of the fundamental sacred rights of the particular
passenger herein involved, but the constant threat any contrary ruling
would pose on the right of privacy of all passengers of all common carriers,
considering how easily the duty to inspect can be made an excuse for
mischief and abuse. Of course, when there are sufficient indications that
the representations of the passenger regarding the nature of his baggage
may not be true, in the interest of the common safety of all, the assistance
of the police authorities may be solicited, not necessarily to force the
passenger to open his baggage, but to conduct the needed investigation
consistent with the rules of propriety and, above all, the constitutional rights
of the passenger. It is in this sense that the mentioned service manual
issued by appellant to its conductors must be understood.

Decisions in other jurisdictions cited by appellant in its brief, evidently

because of the paucity of local precedents squarely in point, emphasize
that there is need, as We hold here, for evidence of circumstances
indicating cause or causes for apprehension that the passenger's baggage
is dangerous and that it is failure of the common carrier's employee to act
in the face of such evidence that constitutes the cornerstone of the
common carrier's liability in cases similar to the present one.
The principle that must control the servants of the carrier in a case
like the one before us is correctly stated in the opinion in the case of
Clarke v. Louisville & N.R. Co. 20 Ky L. Rep. 839, 49 S.W. 1120. In
that case Clarke was a passenger on the defendant's train. Another
passenger took a quantity of gasoline into the same coach in which
Clarke was riding. It ignited and exploded, by reason of which he was
severely injured. The trial court peremptorily instructed the jury to find
for the defendant. In the opinion, affirming the judgment, it is said: "It
may be stated briefly, in assuming the liability of a railroad to its
passengers for injury done by another passenger, only where the
conduct of this passenger had been such before the injury as to
induce a reasonably prudent and vigilant conductor to believe that
there was reasonable ground to apprehend violence and danger to
the other passengers, and in that case asserting it to be the duty of
the conductor of the railroad train to use all reasonable means to
prevent such injury, and if he neglects this reasonable duty, and injury
is done, that then the company is responsible; that otherwise the
railroad is not responsible."
The opinion quotes with approval from the case of Gulf, C. & S. F. R.
Co. vs. Shields, 9 Tex. Civ. App. 652, 29 S. W. 652, in which case the
plaintiff was injured by alcohol which had been carried upon the train
by another passenger. In the opinion in that case it is said: "It was but
a short period of time after the alcohol was spilt when it was set on
fire and the accident occurred, and it was not shown that appellant's
employees knew that the jug contained alcohol. In fact, it is not
shown that the conductor or any other employee knew that Harris had

a jug with him until it fell out of the sack, though the conductor had
collected ... (his) fare, and doubtless knew that he had the sack on
the seat with him. ... It cannot be successfully denied that Harris had
the right as a passenger to carry baggage on the train, and that he
had a right to carry it in a sack if he chose to do so. We think it is
equally clear that, in the absence of some intimation or circumstance
indicating that the sack contained something dangerous to other
passengers, it was not the duty of appellant's conductor or any other
employee to open the sack and examine its contents." Quinn v.
Louisville & N. R. Co. 98 Ky. 231, 32 S. W. 742; Wood v. Louisville &
N. R. Co. 101 Ky. 703, 42 S. W. 349; Louisville & N. R. Co. v. Vincent,
29 Ky. L. Rep. 1049, 96 S. W. 898; Louisville & N. R. Co. v. Renfro,
142 Ky. 590, 33 L. R. A. (N. S.) 133, 135 S. W. 266. 2 (Emphasis
supplied)
Explosive or Dangerous Contents. A carrier is ordinarily not liable
for injuries to passengers from fires or explosions caused by articles
brought into its conveyances by other passengers, in the absence of
any evidence that the carrier, through its employees, was aware of
the nature of the article or had any reason to anticipate danger
therefrom. (Bogard v. Illinois C. R Co. 144 Ky. 649, 139 S. W. 855, 36
L. R. A.[N. S.] 337; Clarke v. Louisville & N. R. Co. 101 Ky. 34, 39 S.
W. 840, 36 L. R. A. 123 [explosion of can of gasoline]; East Indian R.
Co. v. Mukerjee [1901] A. C. [Eng.] 396, 3 B. R. C. 420 P. C.
[explosion of fireworks]; Annotation: 37 L. R. A. [N. S.] 725.) 3
Appellant further invokes Article 1174 of the Civil Code which relieves all
obligors, including, of course, common carriers like appellant, from the
consequence of fortuitous events. The court a quo held that "the breach of
contract (in this case) was not due to fortuitous event and that, therefore,
the defendant is liable in damages." Since We hold that appellant has
succeeded in rebutting the presumption of negligence by showing that it
has exercised extraordinary diligence for the safety of its passengers,
"according to the circumstances of the (each) case", We deem it

unnecessary to rule whether or not there was any fortuitous event in this
case.