G.R. No.

L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,

vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.

REGALADO, J.:

This case had its inception in an action for damages instituted in the former Court of First Instance of Negros Occidental 1 by
private respondent spouses against petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for the
injuries they sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and fell into an open trench,
an excavation allegedly undertaken by PLDT for the installation of its underground conduit system. The complaint alleged
that respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness
and the lack of any warning light or signs. As a result of the accident, respondent Gloria Esteban allegedly sustained injuries
on her arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In
addition, the windshield of the jeep was shattered.2

PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of
their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company (Barte, for
short), an independent contractor which undertook the construction of the manhole and the conduit system. 3 Accordingly,
PLDT filed a third-party complaint against Barte alleging that, under the terms of their agreement, PLDT should in no
manner be answerable for any accident or injuries arising from the negligence or carelessness of Barte or any of its
employees.4 In answer thereto, Barte claimed that it was not aware nor was it notified of the accident involving respondent
spouses and that it had complied with the terms of its contract with PLDT by installing the necessary and appropriate
standard signs in the vicinity of the work site, with barricades at both ends of the excavation and with red lights at night
along the excavated area to warn the traveling public of the presence of excavations. 5

On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of which reads:

IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone
Company is hereby ordered (A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as moral damages
and P5,000.00 exemplary damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and
P500.00 as exemplary damages, with legal rate of interest from the date of the filing of the complaint until
fully paid. The defendant is hereby ordered to pay the plaintiff the sum of P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third party
plaintiff has paid to the plaintiff. With costs against the defendant. 6

From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of damages.
Third-party defendant Barte did not appeal.

On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in said appealed case, with
Justice Corazon Juliano Agrava as ponente, reversing the decision of the lower court and dismissing the complaint of
respondent spouses. It held that respondent Esteban spouses were negligent and consequently absolved petitioner PLDT
from the claim for damages.7 A copy of this decision was received by private respondents on October 10, 1979. 8 On October
25, 1979, said respondents filed a motion for reconsideration dated October 24, 1979. 9 On January 24, 1980, the Special Ninth
Division of the Court of Appeals denied said motion for reconsideration. 10 This resolution was received by respondent
spouses on February 22, 1980.11

On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave of court to file a second
motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980, respondent court, in a resolution likewise penned
by Justice Agrava, allowed respondents to file a second motion for reconsideration, within ten (10) days from notice
thereof. 13 Said resolution was received by private respondents on April 1, 1980 but prior thereto, private respondents had
already filed their second motion for reconsideration on March 7, 1980. 14

On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion for
reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the resolution of the second motion for
reconsideration, designated two additional justices to form a division of five. 16 On September 3, 1980, said division of five
promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well
as the resolution dated, January 24,1980, and affirming in toto the decision of the lower court.17

On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the resolution of
September 3, 1980, contending that the second motion for reconsideration of private respondent spouses was filed out of
time and that the decision of September 25, 1979 penned by Justice Agrava was already final. It further submitted therein
that the relationship of Barte and petitioner PLDT should be viewed in the light of the contract between them and, under the
independent contractor rule, PLDT is not liable for the acts of an independent contractor. 18 On May 11, 1981, respondent
Court of Appeals promulgated its resolution denying said motion to set aside and/or for reconsideration and affirming in
toto the decision of the lower court dated October 1, 1974. 19

Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:

1. Respondent Court of Appeals erred in not denying private respondents' second motion for reconsideration on the ground
that the decision of the Special Second Division, dated September 25, 1979, and the resolution of the Special Ninth Division,
dated January 24, 1980, are already final, and on the additional ground that said second motion for reconsideration is pro
forma.

2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the independent contractor
rule in holding PLDT liable to respondent Esteban spouses.

A convenient resume of the relevant proceedings in the respondent court, as shown by the records and admitted by both
parties, may be graphically presented as follows:

(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava as ponente;

(b) October 10, 1979, a copy of said decision was received by private respondents;

(c) October 25, 1979, a motion for reconsideration was filed by private respondents;

(d) January 24, 1980, a resolution was issued denying said motion for reconsideration;

(e) February 22, 1980, a copy of said denial resolution was received by private respondents;

(f) February 29, 1980, a motion for leave to file a second motion for reconsideration was filed by private
respondents

(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;

(h) March 11, 1980, a resolution was issued allowing respondents to file a second motion for
reconsideration within ten (10) days from receipt; and

(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original decision dated
September 25, 1979 and setting aside the resolution dated January 24, 1980.

From the foregoing chronology, we are convinced that both the motion for leave to file a second motion for reconsideration
and, consequently, said second motion for reconsideration itself were filed out of time.

Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that a second motion for
reconsideration may be presented within fifteen (15) days from notice of the order or judgment deducting the time in which
the first motion has been pending. 20 Private respondents having filed their first motion for reconsideration on the last day of
the reglementary period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the order
denying said motion to file, with leave of court, a second motion for reconsideration. 21 In the present case, after their receipt
on February 22, 1980 of the resolution denying their first motion for reconsideration, private respondents had two remedial
options. On February 23, 1980, the remaining one (1) day of the aforesaid reglementary period, they could have filed a
motion for leave of court to file a second motion for reconsideration, conceivably with a prayer for the extension of the
period within which to do so. On the other hand, they could have appealed through a petition for review on certiorari to this
Court within fifteen (15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file a second motion 'for
reconsideration on February 29, 1980, and said second motion for reconsideration on March 7, 1980, both of which motions
were by then time-barred.

Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the running of which was
suspended during the pendency of the first motion for reconsideration, the Court of Appeals could no longer validly take
further proceedings on the merits of the case, much less to alter, modify or reconsider its aforesaid decision and/or
resolution. The filing of the motion for leave to file a second motion for reconsideration by herein respondents on February
29, 1980 and the subsequent filing of the motion itself on March 7, 1980, after the expiration of the reglementary period to
file the same, produced no legal effects. Only a motion for re-hearing or reconsideration filed in time shall stay the final
order or judgment sought to be re-examined. 23
The consequential result is that the resolution of respondent court of March 11, 1980 granting private respondents' aforesaid
motion for leave and, giving them an extension of ten (10) days to file a second motion for reconsideration, is null and void.
The period for filing a second motion for reconsideration had already expired when private respondents sought leave to file
the same, and respondent court no longer had the power to entertain or grant the said motion. The aforesaid extension of
ten (10) days for private respondents to file their second motion for reconsideration was of no legal consequence since it was
given when there was no more period to extend. It is an elementary rule that an application for extension of time must be
filed prior to the expiration of the period sought to be extended. 24 Necessarily, the discretion of respondent court to grant
said extension for filing a second motion for reconsideration is conditioned upon the timeliness of the motion seeking the
same.

No appeal having been taken seasonably, the respondent court's decision, dated September 25, 1979, became final and
executory on March 9, 1980. The subsequent resolutions of respondent court, dated March 11, 1980 and September 3, 1980,
allowing private respondents to file a second motion for reconsideration and reversing the original decision are null and
void and cannot disturb the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the
accepted rule that once a decision has become final and executory it is removed from the power and jurisdiction of the court
which rendered it to further alter or amend, much less revoke it. 25 The decision rendered anew is null and void.26 The court's
inherent power to correct its own errors should be exercised before the finality of the decision or order sought to be
corrected, otherwise litigation will be endless and no question could be considered finally settled. Although the granting or
denial of a motion for reconsideration involves the exercise of discretion, 27 the same should not be exercised whimsically,
capriciously or arbitrarily, but prudently in conformity with law, justice, reason and equity. 28

Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no error in the findings of
the respondent court in its original decision that the accident which befell private respondents was due to the lack of
diligence of respondent Antonio Esteban and was not imputable to negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment and evaluation of the evidence on record, as evidenced by the
respondent court's resolution of January 24, 1980 which we quote with approval:

First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on that inside
lane, it would not have hit the ACCIDENT MOUND.

Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving from
the left that is, swerving from the inside lane. What caused the swerving is not disclosed; but, as the cause
of the accident, defendant cannot be made liable for the damages suffered by plaintiffs. The accident was
not due to the absence of warning signs, but to the unexplained abrupt swerving of the jeep from the inside
lane. That may explain plaintiff-husband's insistence that he did not see the ACCIDENT MOUND for
which reason he ran into it.

Second.  That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND could
have been corroborated by a picture showing Lacson Street to the south of the ACCIDENT MOUND.

It has been stated that the ditches along Lacson Street had already been covered except the 3 or 4 meters
where the ACCIDENT MOUND was located. Exhibit B-1 shows that the ditches on Lacson Street north of
the ACCIDENT MOUND had already been covered, but not in such a way as to allow the outer lane to be
freely and conveniently passable to vehicles. The situation could have been worse to the south of the
ACCIDENT MOUND for which reason no picture of the ACCIDENT MOUND facing south was taken.

Third.  Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that speed,
he could have braked the vehicle the moment it struck the ACCIDENT MOUND. The jeep would not have
climbed the ACCIDENT MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must
have been running quite fast. If the jeep had been braked at 25 kilometers an hour, plaintiff's would not
have been thrown against the windshield and they would not have suffered their injuries.

Fourth. If the accident did not happen because the jeep was running quite fast on the inside lane and for
some reason or other it had to swerve suddenly to the right and had to climb over the ACCIDENT
MOUND, then plaintiff-husband had not exercised the diligence of a good father of a family to avoid the
accident. With the drizzle, he should not have run on dim lights, but should have put on his regular lights
which should have made him see the ACCIDENT MOUND in time. If he was running on the outside lane
at 25 kilometers an hour, even on dim lights, his failure to see the ACCIDENT MOUND in time to brake
the car was negligence on his part. The ACCIDENT MOUND was relatively big and visible, being 2 to 3
feet high and 1-1/2 feet wide. If he did not see the ACCIDENT MOUND in time, he would not have seen
any warning sign either. He knew of the existence and location of the ACCIDENT MOUND, having seen it
many previous times. With ordinary precaution, he should have driven his jeep on the night of the accident
so as to avoid hitting the ACCIDENT MOUND.29
The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory to his injuries
and those of his wife but goes to the very cause of the occurrence of the accident, as one of its determining factors, and
thereby precludes their right to recover damages.30 The perils of the road were known to, hence appreciated and assumed
by, private respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have avoided the
injurious consequences of his act, even assuming arguendo that there was some alleged negligence on the part of petitioner.

The presence of warning signs could not have completely prevented the accident; the only purpose of said signs was to
inform and warn the public of the presence of excavations on the site. The private respondents already knew of the presence
of said excavations. It was not the lack of knowledge of these excavations which caused the jeep of respondents to fall into
the excavation but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. As
opined in some quarters, the omission to perform a duty, such as the placing of warning signs on the site of the excavation,
constitutes the proximate cause only when the doing of the said omitted act would have prevented the injury. 31 It is basic
that private respondents cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care
was the cause thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his
own protection. Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident,
notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that street
almost everyday and had knowledge of the presence and location of the excavations there. It was his negligence that
exposed him and his wife to danger, hence he is solely responsible for the consequences of his imprudence.

Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that there was insufficient
evidence to prove any negligence on the part of PLDT. We have for consideration only the self-serving testimony of
respondent Antonio Esteban and the unverified photograph of merely a portion of the scene of the accident. The absence of
a police report of the incident and the non-submission of a medical report from the hospital where private respondents were
allegedly treated have not even been satisfactorily explained.

As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —

(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court can
only rely on the testimonial evidence of plaintiffs themselves, and such evidence should be very carefully
evaluated, with defendant, as the party being charged, being given the benefit of any doubt. Definitely
without ascribing the same motivation to plaintiffs, another person could have deliberately engineered a
similar accident in the hope and expectation that the Court can grant him substantial moral and exemplary
damages from the big corporation that defendant is. The statement is made only to stress the
disadvantageous position of defendant which would have extreme difficulty in contesting such person's
claim. If there were no witness or record available from the police department of Bacolod, defendant would
not be able to determine for itself which of the conflicting testimonies of plaintiffs is correct as to the report
or non-report of the accident to the police department. 32

A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence
causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. 33 Whosoever
relies on negligence for his cause of action has the burden in the first instance of proving the existence of the same if
contested, otherwise his action must fail.

WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September 3,1980, are hereby SET
ASIDE. Its original decision, promulgated on September 25,1979, is hereby REINSTATED and AFFIRMED.

SO ORDERED.

G.R. No. L-53401 November 6, 1989

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,

vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN CID,
GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.
PARAS, J.:

Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First Division, setting aside the
judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the following dispositive portion:

WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead whereby defendant is hereby sentenced
to pay plaintiffs actual damages of P30,229.45; compensatory damages of P50,000.00; exemplary damages of P10,000.00; attorney's
fees of P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo)

Basically, this case involves a clash of evidence whereby both patties strive for the recognition of their respective versions of the
scenario from which the disputed claims originate. The respondent Court of Appeals (CA) summarized the evidence of the parties
as follows:

From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of June 29, 1967 a strong typhoon
by the code name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains and consequent flooding in its wake.
Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated and when the floodwaters were beginning to recede the
deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No. 19
Guerrero Street, Laoag City, and proceeded northward towards the direction of the Five Sisters Emporium, of which she was the
owner and proprietress, to look after the merchandise therein that might have been damaged. Wading in waist-deep flood on
Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased, and by
Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly owned by the deceased. Aida and Linda walked side by
side at a distance of between 5 and 6 meters behind the deceased, Suddenly, the deceased screamed "Ay" and quickly sank into the
water. The two girls attempted to help, but fear dissuaded them from doing so because on the spot where the deceased sank they
saw an electric wire dangling from a post and moving in snake-like fashion in the water. Upon their shouts for help, Ernesto dela
Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at four meters away from her he turned back
shouting that the water was grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema
building which was four or five blocks away.

When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he acted immediately. With his wife
Jane, together with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask the people of
defendant Ilocos Norte Electric Company or INELCO to cut off the electric current. Then the party waded to the house on Guerrero
Street. The floodwater was receding and the lights inside the house were out indicating that the electric current had been cut off in
Guerrero. Yabes instructed his boys to fish for the body of the deceased. The body was recovered about two meters from an electric
post.

In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan, Power Plant Engineer of the
National Power Corporation at the Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter which indicated
such abnormalities as grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an
inspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from the posts to the ground. Since
he could not see any INELCO lineman, he decided to go to the INELCO Office at the Life Theatre on Rizal Street by way of
Guerrero. As he turned right at the intersection of Guerrero and Rizal, he saw an electric wire about 30 meters long strung across
the street "and the other end was seeming to play with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the
INELCO still closed, and seeing no lineman therein, he returned to the NPC Compound.

At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having learned of the death of Isabel
Lao Juan, he passed by the house of the deceased at the corner of Guerrero and M.H. del Pilar streets to which the body had been
taken. Using the resuscitator which was a standard equipment in his jeep and employing the skill he acquired from an in service
training on resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor mortis was setting in. On the left palm of
the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO Office, he met two linemen on the way. He told them
about the grounded lines of the INELCO In the afternoon of the same day, he went on a third inspection trip preparatory to the
restoration of power. The dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no longer there.

Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the deceased had been electrocuted.
Among the sympathizers was Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the request of the
relatives of the deceased, Dr. Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin was grayish or, in medical
parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an "electrically charged wound"
(Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base of the thumb on the left hand was a burned wound.
(Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro stated the cause of' death as ,'circulatory shock
electrocution" (Exh. I; p. 103, Ibid.).

In defense and exculpation, defendant presented the testimonies of its officers and employees, namely, Conrado Asis, electric
engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO Through
the testimonies of these witnesses, defendant sought to prove that on and even before June 29, 1967 the electric service system of
the INELCO in the whole franchise area, including Area No. 9 which covered the residence of Antonio Yabes at No. 18 Guerrero
Street, did not suffer from any defect that might constitute a hazard to life and property. The service lines, devices and other
INELCO equipment in Area No. 9 had been newly-installed prior to the date in question. As a public service operator and in line
with its business of supplying electric current to the public, defendant had installed safety devices to prevent and avoid injuries to
persons and damage to property in case of natural calamities such as floods, typhoons, fire and others. Defendant had 12 linesmen
charged with the duty of making a round-the-clock check-up of the areas respectively assigned to them.

Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29, 1967, putting to streets of Laoag
City under water, only a few known places in Laoag were reported to have suffered damaged electric lines, namely, at the southern
approach of the Marcos Bridge which was washed away and where the INELCO lines and posts collapsed; in the eastern part near
the residence of the late Governor Simeon Mandac; in the far north near the defendant's power plant at the corner of Segundo and
Castro Streets, Laoag City and at the far northwest side, near the premises of the Ilocos Norte National High School. Fabico Abijero,
testified that in the early morning before 6 o'clock on June 29, 1967 he passed by the intersection of Rizal and Guerrero Streets to
switch off the street lights in Area No. 9. He did not see any cut or broken wires in or near the vicinity. What he saw were many
people fishing out the body of Isabel Lao Juan.

A witness in the person of Dr. Antonio Briones was presented by the defense to show that the deceased could not have died of
electrocution Substantially, the testimony of the doctor is as follows: Without an autopsy on the cadaver of the victim, no doctor,
not even a medicolegal expert, can speculate as to the real cause of death. Cyanosis could not have been found in the body of the
deceased three hours after her death, because cyanosis which means lack of oxygen circulating in the blood and rendering the color
of the skin purplish, appears only in a live person. The presence of the elongated burn in the left palm of the deceased (Exhibits C-1
and C-2) is not sufficient to establish her death by electrocution; since burns caused by electricity are more or less round in shape
and with points of entry and exit. Had the deceased held the lethal wire for a long time, the laceration in her palm would have been
bigger and the injury more massive. (CA Decision, pp. 18-21, Rollo)

An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased with the aforesaid CFI on
June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special defense, that the
deceased could have died simply either by drowning or by electrocution due to negligence attributable only to herself and not to
petitioner. In this regard, it was pointed out that the deceased, without petitioner's knowledge, caused the installation of a burglar
deterrent by connecting a wire from the main house to the iron gate and fence of steel matting, thus, charging the latter with
electric current whenever the switch is on. Petitioner then conjectures that the switch to said burglar deterrent must have been left
on, hence, causing the deceased's electrocution when she tried to open her gate that early morning of June 29, 1967. After due trial,
the CFI found the facts in favor of petitioner and dismissed the complaint but awarded to the latter P25,000 in moral damages and
attorney's fees of P45,000. An appeal was filed with the CA which issued the controverted decision.

In this petition for review the petitioner assigns the following errors committed by the respondent CA:

1. The respondent Court of Appeals committed grave abuse of discretion and error in considering the purely hearsay alleged
declarations of Ernesto de la Cruz as part of the res gestae.

2. The respondent Court of Appeals committed grave abuse of discretion and error in holding that the strong typhoon "Gening"
which struck Laoag City and Ilocos Norte on June 29, 1967 and the flood and deluge it brought in its wake were not fortuitous
events and did not exonerate petitioner-company from liability for the death of Isabel Lao Juan.

3. The respondent Court of Appeals gravely abused its discretion and erred in not applying the legal principle of "assumption of
risk" in the present case to bar private respondents from collecting damages from petitioner company.

4. That the respondent Court of Appeals gravely erred and abused its discretion in completely reversing the findings of fact of the
trial court.

5. The findings of fact of the respondent Court of Appeals are reversible under the recognized exceptions.

6. The trial court did not err in awarding moral damages and attorney's fees to defendant corporation, now petitioner company.

7. Assuming arguendo that petitioner company may be held liable from the death of the late Isabel Lao Juan, the damages granted
by respondent Court of Appeals are improper and exhorbitant. (Petitioners Memorandum, p. 133, Rollo)

Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2) whether or not petitioner may
be held liable for the deceased's death; and (3) whether or not the respondent CA's substitution of the trial court's factual findings
for its own was proper.

In considering the first issue, it is Our view that the same be resolved in the affirmative. By a preponderance of evidence, private
respondents were able to show that the deceased died of electrocution, a conclusion which can be primarily derived from the
photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds undoubtedly point to the fact
that the deceased had clutched a live wire of the petitioner. This was corroborated by the testimony of Dr. Jovencio Castro who
actually examined the body of the deceased a few hours after the death and described the said burnt wounds as a "first degree
burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore,
witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased screamed "Ay" and sank into the water, they tried
to render some help but were overcome with fear by the sight of an electric wire dangling from an electric post, moving in the
water in a snake-like fashion (supra). The foregoing therefore justifies the respondent CA in concluding that "(t)he nature of the
wounds as described by the witnesses who saw them can lead to no other conclusion than that they were "burns," and there was
nothing else in the street where the victim was wading thru which could cause a burn except the dangling live wire of defendant
company" (CA Decision, p. 22, Rollo).

But in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if such was really the case
when she tried to open her steel gate, which was electrically charged by an electric wire she herself caused to install to serve as a
burglar deterrent. Petitioner suggests that the switch to said burglar alarm was left on. But this is mere speculation, not backed up
with evidence. As required by the Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1). Nevertheless,
the CA significantly noted that "during the trial, this theory was abandoned" by the petitioner (CA Decision, p. 23, Rollo).

Furthermore the CA properly applied the principle of res gestae. The CA said:

Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during that fateful morning of June 29,
1967. This Court has not been offered any sufficient reason to discredit the testimonies of these two young ladies. They were one in
the affirmation that the deceased, while wading in the waist-deep flood on Guerrero Street five or six meters ahead of them,
suddenly screamed "Ay" and quickly sank into the water. When they approached the deceased to help, they were stopped by the
sight of an electric wire dangling from a post and moving in snake-like fashion in the water. Ernesto dela Cruz also tried to
approach the deceased, but he turned back shouting that the water was grounded. These bits of evidence carry much weight. For the
subject of the testimonies was a startling occurrence, and the declarations may be considered part of the res gestae. (CA Decision, p.
21, Rollo)

For the admission of the res gestae in evidence, the following requisites must be present: (1) that the principal act, the res gestae, be a
startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise; (3) that the statements
made must concern the occurrence in question and its immediately attending circumstances (People vs. Ner, 28 SCRA 1151; People
vs. Balbas, 122 SCRA 959). We do not find any abuse of discretion on the CA' part in view of the satisfaction of said requisites in the
case at bar.

The statements made relative to the startling occurrence are admitted in evidence precisely as an exception to the hearsay rule on
the grounds of trustworthiness and necessity. "Trustworthiness" because the statements are made instinctively (Wesley vs. State, 53
Ala. 182), and "necessity" because such natural and spontaneous utterances are more convincing than the testimony of the same
person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la Cruz, was not presented to
testify does not make the testimony of Linda Alonzo Estavillo and Aida Bulong hearsay since the said declaration is part of the res
gestae. Similarly, We considered part of the res gestae a conversation between two accused immediately after commission of the
crime as overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563).

While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo), Ernesto de la Cruz was not an actual
witness to the instant when the deceased sank into the waist-deep water, he acted upon the call of help of Aida Bulong and Linda
Alonzo Estavillo with the knowledge of, and immediately after, the sinking of the deceased. In fact the startling event had not yet
ceased when Ernesto de la Cruz entered the scene considering that the victim remained submerged. Under such a circumstance, it
is undeniable that a state of mind characterized by nervous excitement had been triggered in Ernesto de la Cruz's being as anybody
under the same contingency could have experienced. As such, We cannot honestly exclude his shouts that the water was grounded
from the res gestae just because he did not actually see the sinking of the deceased nor hear her scream "Ay."

Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We concede to the submission that the
statement must be one of facts rather than opinion, We cannot agree to the proposition that the one made by him was a mere
opinion. On the contrary, his shout was a translation of an actuality as perceived by him through his sense of touch.

Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the private respondents, thus, is
presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the application of said Rule as against a party to a case, it is
necessary that the evidence alleged to be suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil.
953). The presumption does not operate if the evidence in question is equally available to both parties (StaplesHowe Printing Co.
vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records that petitioner could have called Ernesto de la Cruz to the
witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel when she testified on cross
examination:

Q. And that Erning de la Cruz, how far did he reach from the gate of the house?

A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept. 1972)

The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto de la Cruz which, if truly adverse to
private respondent, would have helped its case. However, due to reasons known only to petitioner, the opportunity was not taken.

Coming now to the second issue, We tip the scales in the private respondents' favor. The respondent CA acted correctly in
disposing the argument that petitioner be exonerated from liability since typhoons and floods are fortuitous events. While it is true
that typhoons and floods are considered Acts of God for which no person may be held responsible, it was not said eventuality
which directly caused the victim's death. It was through the intervention of petitioner's negligence that death took place. We
subscribe to the conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred liability for the electrocution and consequent death of the late Isabel Lao Juan,
defendant called to the witness-stand its electrical engineer, chief lineman, and lineman to show exercise of extraordinary diligence
and to negate the charge of negligence. The witnesses testified in a general way about their duties and the measures which
defendant usually adopts to prevent hazards to life and limb. From these testimonies, the lower court found "that the electric lines
and other equipment of defendant corporation were properly maintained by a well-trained team of lineman, technicians and
engineers working around the clock to insure that these equipments were in excellent condition at all times." (P. 40, Record on
Appeal) The finding of the lower court, however, was based on what the defendant's employees were supposed to do, not on what
they actually did or failed to do on the date in question, and not on the occasion of the emergency situation  brought about by the
typhoon.

The lower court made a mistake in assuming that defendant's employees worked around the clock during the occurrence of the
typhoon on the night of June 28 and until the early morning of June 29, 1967, Engr. Antonio Juan of the National Power
Corporation affirmed that when he first set out on an inspection trip between 6:00 and 6:30 A.M. on June 29, 1967, he saw grounded
and disconnected electric lines of the defendant but he saw no INELCO lineman. The INELCO Office at the Life theatre on Rizal
Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the witnesses of defendant contradict the finding of the lower court.
Conrado Asis, defendant's electrical engineer, testified that he conducted a general inspection of the franchise area of the INELCO
only on June 30, 1967, the day following the typhoon. The reason he gave for the delay was that all their vehicles were submerged.
(p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00 A.M. on June 30  and after briefing his men on what to
do they started out. (p. 338, lbid) One or two days after the typhoon, the INELCO people heard "rumors that someone was
electrocuted" so he sent one of his men to the place but his man reported back that there was no damaged wire. (p. 385, Id.) Loreto
Abijero, chief lineman of defendant, corroborated Engr. Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan came
to the INELCO plant and asked the INELCO people to inspect their lines. He went with Engr. Juan and their inspection lasted from
8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of defendant, testified that at about 6:00 on June
29, 1967 the typhoon ceased. At that time, he was at the main building of the Divine Word College of Laoag where he had taken his
family for refuge. (pp. 510-511, Ibid.)

In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the early hours of June 29, 1967,
extraordinary diligence requires a supplier of electricity  to be in constant vigil  to prevent or avoid any probable incident that might
imperil life or limb. The evidence does not show that defendant did that. On the contrary, evidence discloses that there were no
men (linemen or otherwise) policing the area, nor even manning its office. (CA Decision, pp. 24-25, Rollo)

Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm is done to the general public"...
considering that electricity is an agency, subtle and deadly, the measure of care required of electric companies must be
commensurate with or proportionate to the danger. The duty of exercising this high degree of diligence and care extends to every
place where persons have a right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner having been
shown, it may not now absolve itself from liability by arguing that the victim's death was solely due to a fortuitous event. "When
an act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury
would not have resulted but for his own negligent conduct or omission" (38 Am. Jur., p. 649).

Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case at bar. It is imperative to note
the surrounding circumstances which impelled the deceased to leave the comforts of a roof and brave the subsiding typhoon. As
testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased,
accompanied by the former two, were on their way to the latter's grocery store "to see to it that the goods were not flooded." As
such, shall We punish her for exercising her right to protect her property from the floods by imputing upon her the unfavorable
presumption that she assumed the risk of personal injury? Definitely not. For it has been held that a person is excused from the
force of the rule, that when he voluntarily assents to a known danger he must abide by the consequences, if an emergency is found
to exist or if the life or property of another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue his
endangered property (Harper and James, "The Law of Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an emergency was
at hand as the deceased's property, a source of her livelihood, was faced with an impending loss. Furthermore, the deceased, at the
time the fatal incident occurred, was at a place where she had a right to be without regard to petitioner's consent as she was on her
way to protect her merchandise. Hence, private respondents, as heirs, may not be barred from recovering damages as a result of
the death caused by petitioner's negligence (ibid., p. 1165, 1166).

But petitioner assails the CA for having abused its discretion in completely reversing the trial court's findings of fact, pointing to
the testimonies of three of its employees its electrical engineer, collector-inspector, lineman, and president-manager to the effect
that it had exercised the degree of diligence required of it in keeping its electric lines free from defects that may imperil life and
limb. Likewise, the said employees of petitioner categorically disowned the fatal wires as they appear in two photographs taken on
the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just hooked to the electric post (petitioner's
Memorandum, p. 170, Rollo). However, as the CA properly held, "(t)he finding of the lower court ... was based on what the
defendant's employees were supposed to do, not on what they actually did or failed to do on the date  in question, and not on the
occasion of the emergency situation brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which We
have already reiterated above, petitioner was in fact negligent. In a like manner, petitioner's denial of ownership of the several
wires cannot stand the logical conclusion reached by the CA when it held that "(t)he nature of the wounds as described by the
witnesses who saw them can lead to no other conclusion than that they were 'burns', and there was nothing else in the street where
the victim was wading thru which could cause a burn except the dangling live wire of defendant company" (supra).

"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to discover and repair broken lines"
(Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when Engineer Antonio Juan of the National Power Corporation set out in the
early morning of June 29, 1967 on an inspection tour, he saw grounded and disconnected lines hanging from posts to the ground
but did not see any INELCO lineman either in the streets or at the INELCO office (vide, CA Decision, supra). The foregoing shows
that petitioner's duty to exercise extraordinary diligence under the circumstance was not observed, confirming the negligence of
petitioner. To aggravate matters, the CA found:

. . .even before  June 28 the people in Laoag were already alerted about the impending typhoon, through radio announcements. Even
the fire department of the city announced the coming of the big flood. (pp. 532-534, TSN, March 13, 1975) At the INELCO
irregularities in the flow of electric current were noted because "amperes of the switch volts were moving". And yet, despite these
danger signals, INELCO had to wait for Engr. Juan to request that defendant's switch be cut off but the harm was done. Asked why
the delay, Loreto Abijero answered that he "was not the machine tender of the electric plant to switch off the current." (pp. 467-
468, Ibid.) How very characteristic of gross inefficiency! (CA Decision, p. 26, Rollo)

From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's findings but tediously considered
the factual circumstances at hand pursuant to its power to review questions of fact raised from the decision of the Regional Trial
Court, formerly the Court of First Instance (see sec. 9, BP 129).

In considering the liability of petitioner, the respondent CA awarded the following in private respondent's favor: P30,229.45 in
actual damages (i.e., P12,000 for the victim's death and P18,229.45 for funeral expenses); P50,000 in compensatory damages,
computed in accordance with the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of P15,000 as average
annual income of the deceased; P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for the award of
P12,000 as compensation for the victim's death, We affirm the respondent CA's award for damages and attorney's fees. Pusuant to
recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said award of P12,000
to P30,000, thus, increasing the total actual damages to P48,229.45.

The exclusion of moral damages and attorney's fees awarded by the lower court was properly made by the respondent CA, the
charge of malice and bad faith on the part of respondents in instituting his case being a mere product of wishful thinking and
speculation. Award of damages and attorney's fees is unwarranted where the action was filed in good faith; there should be no
penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising his legal rights, it
is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).

WHEREFORE, the questioned decision of the respondent, except for the slight modification that actual damages be increased to
P48,229.45 is hereby AFFIRMED.

SO ORDERED.

G.R. No. L-12219            March 15, 1918

AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, as damages alleged
to have been caused by an automobile driven by the defendant. From a judgment of the Court of First Instance of the Province of
La Union absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan Bridge, at San
Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge. Before he
had gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about ten
or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his
approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that
the man on horseback before him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of
the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge
instead of going to the left. He says that the reason he did this was that he thought he did not have sufficient time to get over to the
other side. The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached, the
defendant guided it toward his left, that being the proper side of the road for the machine. In so doing the defendant assumed that
the horseman would move to the other side. The pony had not as yet exhibited fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet some
distance away or slowing down, continued to approach directly toward the horse without diminution of speed. When he had
gotten quite near, there being then no possibility of the horse getting across to the other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing the automobile
passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its head toward
the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell
and its rider was thrown off with some violence. From the evidence adduced in the case we believe that when the accident
occurred the free space where the pony stood between the automobile and the railing of the bridge was probably less than one and
one half meters. As a result of its injuries the horse died. The plaintiff received contusions which caused temporary
unconsciousness and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the manner above described was
guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the opinion that he is so liable.
As the defendant started across the bridge, he had the right to assume that the horse and the rider would pass over to the proper
side; but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done; and he must in a
moment have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature of things
this change of situation occurred while the automobile was yet some distance away; and from this moment it was not longer within
the power of the plaintiff to escape being run down by going to a place of greater safety. The control of the situation had then
passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other
persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead
of doing this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into doing this by the
fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the
animal in question was unacquainted with automobiles, he might get exited and jump under the conditions which here confronted
him. When the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of negligence. The law here
in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before
him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and
determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined
in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot here be of
much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before
them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care
only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before
negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given
case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect
harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A prudent
man, placed in the position of the defendant, would in our opinion, have recognized that the course which he was pursuing was
fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course.
Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting
himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned in this
connection. This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to
recovery, it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the
other party. The defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge
in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which were hauled along a
narrow track. At certain spot near the water's edge the track gave way by reason of the combined effect of the weight of the car and
the insecurity of the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It
appeared in evidence that the accident was due to the effects of the typhoon which had dislodged one of the supports of the track.
The court found that the defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff
was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car instead of being in front or
behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track
in proper repair nevertheless the amount of the damages should be reduced on account of the contributory negligence in the
plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The liability of the company arose
from its responsibility for the dangerous condition of its track. In a case like the one now before us, where the defendant was
actually present and operating the automobile which caused the damage, we do not feel constrained to attempt to weigh the
negligence of the respective parties in order to apportion the damage according to the degree of their relative fault. It is enough to
say that the negligence of the defendant was in this case the immediate and determining cause of the accident and that the
antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the effect that the
subject matter of the action had been previously adjudicated in the court of a justice of the peace. In this connection it appears that
soon after the accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary investigation the defendant was
discharged by the magistrate and the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon
the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question of his civil liability
arising from negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of the peace in
dismissing the criminal proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil.
Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and judgment is her rendered that the
plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other instances. The sum here awarded is
estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his
apparel, and lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff are remote or
otherwise of such character as not to be recoverable. So ordered.

Separate Opinions

MALCOLM, J.,  concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I do so because of my understanding of
the "last clear chance" rule of the law of negligence as particularly applied to automobile accidents. This rule cannot be invoked
where the negligence of the plaintiff is concurrent with that of the defendant. Again, if a traveler when he reaches the point of
collision is in a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery. But Justice Street
finds as a fact that the negligent act of the interval of time, and that at the moment the plaintiff had no opportunity to avoid the
accident. Consequently, the "last clear chance" rule is applicable. In other words, when a traveler has reached a point where he
cannot extricate himself and vigilance on his part will not avert the injury, his negligence in reaching that position becomes the
condition and not the proximate cause of the injury and will not preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102
Atl., 330.)

G.R. No. 131588. March 27, 2001

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GLENN DE LOS SANTOS, Accused-Appellant.

DECISION

DAVIDE, JR.,  C.J.:

One may perhaps easily recall the gruesome and tragic event in Cagayan de Oro City, reported over print and broadcast
media, which claimed the lives of several members of the Philippine National Police (PNP) who were undergoing an
endurance run as part of the Special Counter Insurgency Operation Unit Training. Not much effort was spared for the
search of the one responsible therefor, as herein accused-appellant Glenn de los Santos (hereafter GLENN) immediately
surrendered to local authorities. GLENN was then charged with the crimes of Multiple Murder, Multiple Frustrated
Murder, and Multiple Attempted Murder in an information filed with the Regional Trial Court of Cagayan de Oro City. The
information reads as follows:
That on or about October 05, 1995, in the early morning, at Maitum Highway, within Barangay Puerto, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to
kill, taking advantage of his driven motor vehicle, an Isuzu Elf, and with treachery, did then and there willfully, unlawfully
and feloniously kill and inflict mortal wounds from behind in a sudden and unexpected manner with the use of said vehicle
members of the Philippine National Police (PNP), undergoing a Special Training Course (Scout Class 07-95), wearing black
T-shirts and black short pants, performing an Endurance Run of 35 kilometers coming from their camp in Manolo Fortich,
Bukidnon, heading to Regional Training Headquarters in Camp Alagar, Cagayan de Oro City, running in a column of 3,
with a distance of two feet, more or less, from one trainee to another, thus forming a [sic] three lines, with a length of more
or less 50 meters from the 1st man to the last man, unable to defend themselves, because the accused ran or moved his
driven vehicle on the direction of the backs of the PNP joggers in spite of the continuous warning signals made by six of the
joggers, namely: PO1 Allan Tabacon Espana, Waldon Sinda Sacro, Lemuel Ybanez Pangca, Artemio Jamil Villaflor, Nardo
Omasas Collantes and Joselito Buyser Escartin, who were at the rear echelon of said run, acting as guards, by continuously
waving their hands at the accused for him to take the left lane of the highway, going to the City proper, from a distance of
100 meters away from the joggers rear portion, but which accused failed and refused to heed; instead, he proceeded to
operate his driven vehicle (an Isuzu Elf) on high speed directly towards the joggers, thus forcing the rear guard[s] to throw
themselves to [a] nearby canal, to avoid injuries, then hitting, bumping, or ramming the first four (4) victims, causing the
bodies to be thrown towards the windshields of said Isuzu Elf, breaking said windshield, and upon being aware that bodies
of the victims flew on the windshield of his driven vehicle, instead of applying his brake, continued to travel on a high
speed, this time putting off its headlights, thus hitting the succeeding joggers on said 1st line, as a result thereof the
following were killed on the spot:

1. Vincent Labis Rosal 7. Antonio Flores Lasco

2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas
3. Jose Arden M. Atisa 9. Roberto Cabussao Loren
4. Nathaniel Mugot Baculio 10. Raul Plaza Martinez
5. Romil Gosila Legrano 11. Jerry Pedrosa Pajo
6. Arnulfo Limbago Jacutin 12. Rolando Paremcio Pancito

While another trainee/victim, Antonio Palomino Mino, died few days after the incident, while the following eleven (11)
other trainee/victims were seriously wounded, the accused thus performing all the acts of execution which would produce
the crime of Murder as a consequence but nevertheless did not produce it by reason of some cause other than said accuseds
spontaneous desistance, that is, by the timely and able medical assistance rendered on the following victims which
prevented their death, to wit:

1. Rey Go Boquis 7. Melchor Hinlo

2. Rene Tuako Calabria 8. Noel Ganzan Oclarit
3. Nonata Ibarra Erno 9. Charito Penza Gepala
4. Rey Tamayo Estofil 10. Victor Malicse Olavo
5. Joel Rey Migue Galendez 11. Bimbo Glabe Polboroza
6. Arman Neri Hernaiz

While the following Police Officers I (POI) sustained minor injuries, to wit:

1. Romanito Andrada 6. Romualdo Cotor Dacera

2. Richard Canoy Caday 7. Ramil Rivas Gaisano
3. Rey Cayusa 8. Dibangkita Magandang
4. Avelino Chua 9. Martin Olivero Pelarion
5. Henry Gadis Coubeta 10. Flordicante Martin Piligro

after which said accused thereafter escaped from the scene of the incident, leaving behind the victims afore-enumerated
helpless.

Contrary to Article 248, in relation to Article 6 of the Revised Penal Code.

The evidence for the prosecution disclose that the Special Counter Insurgency Operation Unit Training held at Camp
Damilag, Manolo Fortich, Bukidnon, started on 1 September 1995 and was to end on 15 October 1995. The last phase of the
training was the endurance run from said Camp to Camp Alagar, Cagayan de Oro City. The run on 5 October 1995 started at
2:20 a.m. The PNP trainees were divided into three columns: the first and second of which had 22 trainees each, and the
third had 21. The trainees were wearing black T-shirts, black short pants, and green and black combat shoes. At the start of
the run, a Hummer vehicle tailed the jogging trainees. When they reached Alae, the driver of the Hummer vehicle was
instructed to dispatch advanced security at strategic locations in Carmen Hill. Since the jogging trainees were occupying the
right lane of the highway, two rear security guards were assigned to each rear column. Their duty was to jog backwards
facing the oncoming vehicles and give hand signals for other vehicles to take the left lane. 1
Prosecution witnesses Lemuel Y. Pangca and Weldon Sacro testified that they were assigned as rear guards of the first
column. They recalled that from Alae to Maitum Highway, Puerto, Cagayan de Oro City, about 20 vehicles passed them, all
of which slowed down and took the left portion of the road when signaled to do so. 2

While they were negotiating Maitum Highway, they saw an Isuzu Elf truck coming at high speed towards them. The vehicle
lights were in the high beam. At a distance of 100 meters, the rear security guards started waving their hands for the vehicle
to take the other side of the road, but the vehicle just kept its speed, apparently ignoring their signals and coming closer and
closer to them. Realizing that the vehicle would hit them, the rear guards told their co-trainees to retract. The guards
forthwith jumped in different directions. Lemuel and Weldon saw their co-trainees being hit by the said vehicle, falling like
dominoes one after the other. Some were thrown, and others were overrun by the vehicle. The driver did not reduce his
speed even after hitting the first and second columns. The guards then stopped oncoming vehicles to prevent their
comrades from being hit again. 3

The trial court judge, together with the City Prosecutor, GLENN and his counsel, conducted an ocular inspection of the
place where the incident happened. They then proceeded to inspect the Isuzu Elf at the police station. The City Prosecutor
manifested, thus:

The vehicle which we are now inspecting at the police station is the same vehicle which [was] involved in the October 5,
1995 incident, an Isuzu Elf vehicle colored light blue with strips painting along the side colored orange and yellow as well as
in front. We further manifest that the windshield was totally damaged and 2/3 portion of the front just below the
windshield was heavily dented as a consequence of the impact. The lower portion was likewise damaged more particularly
in the radiator guard. The bumper of said vehicle was likewise heavily damaged in fact there is a cut of the plastic used as a
bumper; that the right side of the headlight was likewise totally damaged. The front signal light, right side was likewise
damaged. The side mirror was likewise totally damaged. The height of the truck from the ground to the lower portion of the
windshield is 5 ft. and the height of the truck on the front level is 5 ft. 4

PO3 Jose Cabugwas testified that he was assigned at the Investigation Division at Precinct 6, Cagayan de Oro City, and that
at 4 a.m. of 5 October 1995, several members of the PNP came to their station and reported that they had been bumped by a
certain vehicle. Immediately after receiving the report, he and two other policemen proceeded to the traffic scene to conduct
an ocular inspection. Only bloodstains and broken particles of the hit-and-run vehicle remained on the highway. They did
not see any brake marks on the highway, which led him to conclude that the brakes of the vehicle had not been applied. The
policemen measured the bloodstains and found them to be 70 ft. long. 5

GLENNs version of the events that transpired that evening is as follows:

At about 10:30 p.m. of 4 October 1995, he was asked by his friend Enting Galindez and the latters fellow band members to
provide them with transportation, if possible an Isuzu Forward, that would bring their band instruments, band utilities and
band members from Macasandig and Corrales, Cagayan de Oro City, to Balingoan. From there, they were supposed to be
taken to Mambajao, Camiguin, to participate in the San Miguel-sponsored Sabado Nights of the Lanzones Festival from 5-7
October 1995. It was the thirteenth time that Enting had asked such a favor from him. 6 Since the arrangement was to fetch
Galindez and his group at 4:00 a.m. of 5 October 1995, GLENN immediately went to Cugman, Cagayan de Oro City, to get
his Isuzu Elf truck. After which, he proceeded back to his house at Bugo, Cagayan de Oro City, and told his wife that he
would go to Bukidnon to get his aunts Isuzu Forward truck because the twenty band members and nine utilities and band
instruments could not be accommodated in the Isuzu Elf truck. Three of his friends asked to go along, namely, Roldan
Paltonag, Andot Pea, and a certain Akut. 7

After leaving GLENNs house, the group decided to stop at Celebrity Plaza Restaurant. GLENN saw his kumpare Danilo
Cosin and the latters wife, and joined them at the table. GLENN finished three bottles of pale pilsen beer. When the Cosin
spouses left, GLENN joined his travelling companions at their table. The group left at 12:00 midnight for Bukidnon. The
environment was dark and foggy, with occasional rains. It took them sometime looking for the Isuzu Forward truck. Finally,
they saw the truck in Agusan Canyon. Much to their disappointment, the said truck had mechanical problems. Hence,
GLENN decided to go back to Cagayan de Oro City to tell Enting that they would use the Isuzu Elf truck instead. 8

GLENN drove slowly because the road was slippery. The vicinity was dark: there was no moon or star; neither were there
lampposts. From the Alae junction, he and his companions used the national highway, traversing the right lane going to
Cagayan de Oro City. At the vicinity of Mambatangan junction, as the Elf was negotiating a left curve going slightly
downward, GLENN saw a very bright and glaring light coming from the opposite direction of the national highway.
GLENN blinked his headlights as a signal for the other driver to switch his headlights from bright to dim. GLENN switched
his own lights from bright to dim and reduced his speed from 80 to 60 kilometers per hour. It was only when the vehicles
were at a distance of 10 to 15 meters from each other that the other cars headlights were switched from bright to dim. As a
result, GLENN found it extremely hard to adjust from high brightness to sudden darkness. 9

It was while the truck was still cruising at a speed of 60 km./hr., and immediately after passing the oncoming vehicle, that
GLENN suddenly heard and felt bumping thuds. At the sound of the first bumping thuds, GLENN put his right foot on the
brake pedal. But the impact was so sudden that he was astonished and afraid. He was trembling and could not see what
were being bumped. At the succeeding bumping thuds, he was not able to pump the brake, nor did he notice that his foot
was pushing the pedal. He returned to his senses only when one of his companions woke up and said to him: Gard, it seems
we bumped on something. Just relax, we might all die. Due to its momentum, the Elf continued on its track and was able to
stop only when it was already very near the next curve. 10

GLENN could not distinguish in the darkness what he had hit, especially since the right headlights of the truck had been
busted upon the first bumping thuds. In his confusion and fear, he immediately proceeded home. GLENN did not report
the incident to the Puerto Police Station because he was not aware of what exactly he had hit. It was only when he reached
his house that he noticed that the grill of the truck was broken; the side mirror and round mirror, missing; and the
windshield, splintered. Two hours later, he heard on Bombo Radyo that an accident had occurred, and he realized that it was
the PNP group that he had hit. GLENN surrendered that same day to Governor Emano. 11

The defense also presented Crescente Galindez, as well as Shirley Almazan of the PAG-ASA Office, Cagayan de Oro City.
The former testified that when he went to GLENNs house at about 10:00 p.m. of 4 October 1995, there was heavy rain; and at
12:00 midnight, the rain was moderate. He corroborated GLENNs testimony that he (Crescente) went to GLENNs house
that evening in order to hire a truck that would bring the band instruments, band utilities and band members from Cagayan
de Oro to Camiguin for the Lanzones Festival. 12 Almazan, on the other hand, testified that based on an observed weather
report within the vicinity of Cagayan de Oro City, there was rain from 8:00 p.m. of October 1995 to 2:00 a.m. the next day;
and the sky was overcast from 11:00 p.m. of 4 October 1995 to 5:00 a.m. of 5 October 1995. What she meant by overcast is
that there was no break in the sky; and, definitely, the moon and stars could not be seen. 13

The prosecution presented rebuttal witness Danilo Olarita whose house was just 100 meters away from the place where the
incident occurred. He testified that he was awakened on that fateful night by a series of loud thuds. Thereafter, a man came
to his house and asked for a glass of water, claiming to have been hit by a vehicle. Danilo further stated that the weather at
the time was fair, and that the soil was dry and not muddy. 14

In its decision of 26 August 1997, the trial court convicted GLENN of the complex crime of multiple murder, multiple
frustrated murder and multiple attempted murder, with the use of motor vehicle as the qualifying circumstance. It
sentenced him to suffer the penalty of death and ordered him to indemnify each group of the heirs of the deceased in the
amount of P75,000; each of the victims of frustrated murder in the amount of P30,000; and each of the victims of attempted
murder in the amount of P10,000.

Hence, this automatic review, wherein GLENN contends that the trial court erred (a) in finding that he caused the Isuzu Elf
truck to hit the trainees even after seeing the rear guards waving and the PNP trainees jogging; (b) in finding that he caused
the truck to run even faster after noticing the first thuds; and (c) in finding that he could still have avoided the accident from
a distance of 150 meters, despite the bright and glaring light from the oncoming vehicle.

In convicting GLENN, the trial court found that the accused out of mischief and dare-devilness [sic], in the exhilaration of
the night breeze and having dr[u]nk at least three bottles of beer earlier, merely wanted to scare the rear guard[s] and see
them scamper away as they saw him and his vehicle coming at them to ram them down. 15

Likewise, the OSG posits that the evil motive of the appellant in injuring the jogging trainees was probably  brought by the
fact that he had dr[u]nk a total of three (3) bottles of beer earlier before the incident. 16

Not to be outdone, the defense also advances another speculation, i.e., the possibility that [GLENN] could have fallen asleep
out of sheer fatigue in that unholy hour of 3:30 in the early morning, and thus was not able to stop his Isuzu Elf truck when
the bumping thuds were occurring in rapid succession; and after he was able to wake up upon hearing the shout of his
companions, it was already too late, as the bumping thuds had already occurred. 17

Considering that death penalty is involved, the trial court should have been more scrupulous in weighing the evidence. If
we are to subscribe to the trial courts finding that GLENN must have merely wanted to scare the rear guards, then intent to
kill was wanting. In the absence of a criminal intent, he cannot be held liable for an intentional felony. All reasonable doubt
intended to demonstrate negligence, and not criminal intent, should be indulged. 18

From the convergence of circumstances, we are inclined to believe that the tragic event was more a product of reckless
imprudence than of a malicious intent on GLENNs part.

First, as testified to by prosecution rebuttal witness Danilo Olarita, the place of the incident was very dark, as there was no
moon. And according to PAG-ASAs observed weather report within the vicinity of Cagayan de Oro City covering a radius
of 50 kilometers, at the time the event took place, the sky was overcast, i.e., there was absolutely no break in the thick clouds
covering the celestial dome globe; hence, there was no way for the moon and stars to be seen. Neither were there lampposts
that illuminated the highway.
Second, the jogging trainees and the rear guards were all wearing black T-shirts, black short pants, and black and green
combat shoes, which made them hard to make out on that dark and cloudy night. The rear guards had neither reflectorized
vests or gloves nor flashlights in giving hand signals.

Third, GLENN was driving on the proper side of the road, the right lane. On the other hand, the jogging trainees were
occupying the wrong lane, the same lane as GLENNs vehicle was traversing. Worse, they were facing the same direction as
GLENNs truck such that their backs were turned towards the oncoming vehicles from behind.

Fourth, no convincing evidence was presented to rebut GLENNs testimony that he had been momentarily blinded by the
very bright and glaring lights of the oncoming vehicle at the opposite direction as his truck rounded the curve. He must
have been still reeling from the blinding effect of the lights coming from the other vehicle when he plowed into the group of
police trainees.

Indeed, as pointed out by appellant, instinct tells one to stop or swerve to a safe place the moment he sees a cow, dog, or cat
on the road, in order to avoid bumping or killing the same; and more so if the one on the road is a person. It would therefore
be inconceivable for GLENN, then a young college graduate with a pregnant wife and three very young children who were
dependent on him for support, to have deliberately hit the group with his truck.

The conclusion of the trial court and the OSG that GLENN intentionally rammed and hit the jogging trainees was premised
on the assumption that despite the first bumping thuds, he continued to accelerate his vehicle instead of applying his
brakes, as shown by the absence of brake marks or skid marks along the traffic scene.

For its part, the defense attributed the continuous movement of GLENNs vehicle to the confluence of the following factors:

1. The Isuzu Elf truck, a huge vehicle, was moving fast that even if the brakes were applied the truck would have still
proceeded further on account of its momentum, albeit at a reduced speed, and would have stopped only after a certain
distance.

2. The national highway, from Alae to Puerto, Cagayan de Oro City, was made of fine and smooth asphalt, free from
obstructions on the road such as potholes or excavations. Moreover, the highway was going a little bit downward, more
particularly from the first curve to the place of incident. Hence, it was easier and faster to traverse a distance of 20 to 25
meters which was the approximate aggregate distance from the first elements up to the 22nd or 23rd elements of the
columns.

3. The weight of each of the trainees (the average of which could be 50 kilograms only) could hardly make an impact on the
3,900 kilograms truck, which was moving at a speed ranging from 60 to 70 kilometers per hour.

4. Considering that the width of the truck from the right to the left tires was wide and the under chassis was elevated, the
truck could just pass over two persons lying flat on the ground without its rubber tires running over the bodies. Thus,
GLENN would not notice any destabilization of the rubber tires.

5. Since the police trainees were jogging in the same direction as the truck was proceeding, the forward movements
constituted a force parallel to the momentum of the forward-moving truck such that there was even much lesser force
resisting the said ongoing momentum.

It is a well-entrenched rule that if the inculpatory facts are capable of two or more explanations -- one consistent with the
innocence or lesser degree of liability of the accused, and the other consistent with his guilt or graver responsibility -- the
Court should adopt the explanation which is more favorable to the accused. 19

We are convinced that the incident, tragic though it was in light of the number of persons killed and seriously injured, was
an accident and not an intentional felony. It is significant to note that there is no shred of evidence that GLENN had an axe
to grind against the police trainees that would drive him into deliberately hitting them with intent to kill.

Although proof of motive is not indispensable to a conviction especially where the assailant is positively identified, such
proof is, nonetheless, important in determining which of two conflicting theories of the incident is more likely to be
true. 20 Thus, in People v. Godinez, 21 this Court said that the existence of a motive on the part of the accused becomes decisive
in determining the probability or credibility of his version that the shooting was purely accidental.

Neither is there any showing of a political angle of a leftist-sponsored massacre of police elements disguised in a vehicular
accident. 22 Even if there be such evidence, i.e., that the motive of the killing was in furtherance of a rebellion movement,
GLENN cannot be convicted because if such were the case, the proper charge would be rebellion, and not murder. 23
GLENNs offense is in failing to apply the brakes, or to swerve his vehicle to the left or to a safe place the moment he heard
and felt the first bumping thuds. Had he done so, many trainees would have been spared.

We have once said:

A man must use common sense, and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent,
if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee
and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and
property, and those of his fellow-beings, would ever be exposed to all manner of danger and injury. 24

The test for determining whether a person is negligent in doing an act whereby injury or damage results to the person or
property of another is this: Could a prudent man, in the position of the person to whom negligence is attributed, foresee
harm to the person injured as a reasonable consequence of the course actually pursued? If so, the law imposes a duty on the
actor to refrain from that course or to take precautions to guard against its mischievous results, and the failure to do so
constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this prevision, is
always necessary before negligence can be held to exist. 25

GLENN showed an inexcusable lack of precaution. Article 365 of the Revised Penal Code states that reckless imprudence
consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration
(1) his employment or occupation; (2) his degree of intelligence; (4) his physical condition; and (3) other circumstances
regarding persons, time and place.

GLENN, being then a young college graduate and an experienced driver, should have known to apply the brakes or swerve
to a safe place immediately upon hearing the first bumping thuds to avoid further hitting the other trainees. By his own
testimony, it was established that the road was slippery and slightly going downward; and, worse, the place of the incident
was foggy and dark. He should have observed due care in accordance with the conduct of a reasonably prudent man, such
as by slackening his speed, applying his brakes, or turning to the left side even if it would mean entering the opposite lane
(there being no evidence that a vehicle was coming from the opposite direction). It is highly probable that he was driving at
high speed at the time. And even if he was driving within the speed limits, this did not mean that he was exercising due care
under the existing circumstances and conditions at the time.

Considering that the incident was not a product of a malicious intent but rather the result of a single act of reckless driving,
GLENN should be held guilty of the complex crime of reckless imprudence resulting in multiple homicide with serious
physical injuries and less serious physical injuries.

Article 48 of the Revised Penal Code provides that when the single act constitutes two or more grave or less grave felonies,
or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period. Since Article 48 speaks of felonies, it is applicable to crimes through
negligence in view of the definition of felonies in Article 3 as acts or omissions punishable by law committed either by
means of deceit (dolo) or fault (culpa). 26 In Reodica v. Court of Appeals, 27 we ruled that if a reckless, imprudent, or negligent act
results in two or more grave or less grave felonies, a complex crime is committed. Thus, in Lapuz v. Court of Appeals, 28 the
accused was convicted, in conformity with Article 48 of the Revised Penal Code, of the complex crime of homicide with
serious physical injuries and damage to property through reckless imprudence, and was sentenced to a single penalty of
imprisonment, instead of the two penalties imposed by the trial court. Also, in Soriao v. Court of Appeals, 29 the accused was
convicted of the complex crime of multiple homicide with damage to property through reckless imprudence for causing a
motor boat to capsize, thereby drowning to death its twenty-eight passengers.

The slight physical injuries caused by GLENN to the ten other victims through reckless imprudence, would, had they been
intentional, have constituted light felonies. Being light felonies, which are not covered by Article 48, they should be treated
and punished as separate offenses. Separate informations should have, therefore, been filed.

It must be noted that only one information (for multiple murder, multiple frustrated murder and multiple attempted
murder) was filed with the trial court. However, nothing appears in the record that GLENN objected to the multiplicity of
the information in a motion to quash before his arraignment. Hence, he is deemed to have waived such defect. 30 Under
Section 3, Rule 120 of the Rules of Court, when two or more offenses are charged in a single complaint or information and
the accused fails to object to it before trial, the court may convict the accused of as many offenses as are charged and proved,
and impose on him the penalty for each of them.

Now, we come to the penalty. Under Article 365 of the Revised Penal Code, any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute a grave felony shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium period; and if it would have constituted a light felony, the penalty
of arresto menor in its maximum period shall be imposed. The last paragraph thereof provides that the penalty next higher in
degree shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in his
hand to give. This failure to render assistance to the victim, therefore, constitutes a qualifying circumstance because the
presence thereof raises the penalty by one degree. 31 Moreover, the fifth paragraph thereof provides that in the imposition of
the penalty, the court shall exercise its sound discretion without regard to the rules prescribed in Article 64. Elsewise stated,
in felonies through imprudence or negligence, modifying circumstances need not be considered in the imposition of the
penalty. 32

In the case at bar, it has been alleged in the information and proved during the trial that GLENN escaped from the scene of
the incident, leaving behind the victims. It being crystal clear that GLENN failed to render aid to the victims, the penalty
provided for under Article 365 shall be raised by one degree. Hence, for reckless imprudence resulting in multiple homicide
with serious physical injuries and less serious physical injuries, the penalty would be prision correccional in its maximum
period to prision mayor in its medium period. Applying Article 48, the maximum of said penalty, which is prision mayor in its
medium period, should be imposed. For the separate offenses of reckless imprudence resulting in slight physical injuries,
GLENN may be sentenced to suffer, for each count, the penalty of arresto mayor in its minimum period.

Although it was established through the testimonies of prosecution witness Lemuel Pangca 33 and of GLENN that the latter
surrendered to Governor Emano of Misamis Oriental, such mitigating circumstance need not be considered pursuant to the
aforestated fifth paragraph of Article 365.

Under the Indeterminate Sentence Law, GLENN may be sentenced to suffer an indeterminate penalty whose minimum is
within the range of the penalty next lower in degree to that prescribed for the offense, and whose maximum is that which
could properly be imposed taking into account the modifying circumstances. Hence, for the complex crime of reckless
imprudence resulting in multiple homicide with serious physical injuries and less serious physical injuries, qualified by his
failure to render assistance to the victims, he may be sentenced to suffer an indeterminate penalty ranging from arresto
mayor in its maximum period to prision correccional  in its medium period, as minimum, to prision mayor in its medium
period, as maximum. As to the crimes of reckless imprudence resulting in slight physical injuries, since the maximum term
for each count is only two months the Indeterminate Sentence Law will not apply.

As far as the award of damages is concerned, we find a necessity to modify the same. Conformably with current
jurisprudence, 34 we reduce the trial courts award of death indemnity from P75,000 to P50,000 for each group of heirs of the
trainees killed. Likewise, for lack of factual basis, we delete the awards of P30,000 to each of those who suffered serious
physical injuries and of P10,000 to each of those who suffered minor physical injuries.

WHEREFORE , the decision of the Regional Trial Court, Branch 38, Cagayan de Oro City, is hereby SET ASIDE, and another
one is rendered holding herein accused-appellant GLENN DE LOS SANTOS guilty beyond reasonable doubt of (1) the
complex crime of reckless imprudence resulting in multiple homicide with serious physical injuries and less serious physical
injuries, and sentencing him to suffer an indeterminate penalty of four (4) years of prision correccional, as minimum, to ten
(10) years of prision mayor, as maximum; and (2) ten (10) counts of reckless imprudence resulting in slight physical injuries
and sentencing him, for each count, to the penalty of two (2) months of arresto mayor. Furthermore, the awards of death
indemnity for each group of heirs of the trainees killed are reduced to P50,000; and the awards in favor of the other victims
are deleted. Costs against accused-appellant. SO ORDERED.

[A.M. No. 01-1463. March 20, 2001.] (Formerly OCA I.P.I. No. 99-572-P)

EVELYN ACUÑA, Complainant, v. RODOLFO A. ALCANTARA, Sheriff IV, Regional Trial Court,

Branch 50, Villasis, Pangasinan, Respondent.

DECISION

VITUG, J.:

In a verified letter-complaint, dated 27 October 1998, complainant Evelyn Acuña charged Rodolfo A.
Alcantara, Sheriff IV of the Regional Trial Court of Villasis, Pangasinan, Branch 50, with negligence and
manifest partiality relative to his conduct in Civil Case No. V-0413 ("Mrs. Gloria R. Ocampo v. Mrs. Evelyn
Acuña") for "recovery of sum of money with prayer for preliminary attachment." The trial court, on 23
December 1997, granted the preliminary attachment prayed for by plaintiff Ocampo. The writ was
thereupon issued on the two flatboats of herein complainant Acuña.

Complainant averred that, in implementing the writ, respondent sheriff had failed to take the necessary
precautions in protecting the attached property. Respondent entrusted the flatboats to a relative of plaintiff
Ocampo under whose care one of the flatboats submerged. Later, the flatboats were turned over by
respondent to the Philippine Coast Guard of Sual, Pangasinan, in which custody the flatboats were totally
damaged due to several typhoons that visited the area.
Respondent explained, when required to comment, that when he implemented the writ of attachment, the
flatboats were not seaworthy. Initially, he sought the assistance of the Philippine Coast Guard of Sual,
Pangasinan, in safekeeping the flatboats but the Coast Guard refused to accept such custody without a
court order. Meanwhile, respondent was constrained to dock the flatboats at the Sual port, tied them to a
bamboo post and entrusted them to a son of plaintiff Ocampo although the keys were kept by the latter.
Sometime in May, 1998, after being informed that one of the flatboats had sunk, he asked for a court order
to have the Philippine Coast Guard take possession of the flatboats. The court directed accordingly.
Respondent implemented the order of the trial court, dated 05 June 1998, by hiring men at his own expense
to lift the submerged flatboat and by depositing the two flatboats with the Philippine Coast Guard in Sual,
Pangasinan. On 18 September 1998, respondent received a request from the Philippine Coast Guard to
transfer the flatboats to a safer place to prevent them from further deteriorating. Before he could act on the
request, however, typhoons "Gading," "Iliang" and "Loleng" struck the place and destroyed the flatboats.

Respondent admitted having initially turned over the custody of the boats to the son of the plaintiff but
that he did so only because the Philippine Coast Guard had then refused to render assistance to him;
otherwise, he contended, he had taken all the necessary measures to protect the attached property.

The case was referred by the Court to the Office of the Court Administrator ("OCA") for evaluation, report
and recommendation. Eventually, the OCA came out with its evaluation, report and recommendation; it
said

"The complaint is partly meritorious.

"In Tantingco v. Aguilar (81 SCRA 599, 604) this Court held that:

"‘Having taken possession of the property under the writ of attachment, it was respondent’s duty to protect
the property from damages or loss. The respondent was bound to exercise ordinary and reasonable care for
the preservation of the properties.’

"More to the point is the case of National Bureau of Investigation v. Tuliao (270 SCRA 351, 356). In this case,
this Court citing the case of Walker v. McMicking (14 Phil. 688, 673) said

"‘. . . A verbal declaration of seizure or service of a writ of attachment is not sufficient. There must be an
actual taking of possession and placing of the attached property under the control of the officer or someone
representing him. (Hallester v. Goodale, 8 Cann., 332, 21 Am. Dec., 674; Jones v. Hoard, 99 Ga., 451, 59 Am.
St. Rep., 231)

‘We believe that . . . to constitute a valid levy or attachment, the officer levying it must take actual
possession of the property attached as far as . . . practicable (under the circumstances). He must put himself
in a position to, and must assert and, in fact, enforce a dominion over the property adverse to and exclusive
of the attachment debtor and such property must be in his substantial presence and possession (Corniff v.
Cock, 95 Ga., 61, 51 Am. St. Rep. 55, 61) Of course, this does not mean that the attaching officer may not,
under an arrangement satisfactory to himself, put anyone in possession of the property for the purpose of
guarding it, but he can not in any way relieve himself from liability to the parties interested in said
attachment.’

"Applying the above-quoted principle to the instant case, it is apparent that respondent was negligent in
taking care of the boats because he turned over possession thereof to the son of the plaintiff. His reason that
the Coast Guard did not accept the boats because he had no court order can not exonerate him. In view of
the Coast Guard’s refusal, what respondent should have done under the circumstances was to assign a
disinterested party, at the expense of the plaintiff, to take care of the boats. Even then, this error could have
been rectified if respondent immediately asked the court for an order to transfer custody of the boats to the
Coast Guard. Respondent did this only when one of the boats had already sunk. We, however, believe that
this is the only extent of respondent’s liability. Respondent was able to eventually transfer the possession of
the boats to the Coast Guard in whose custody the boats were totally destroyed by storms. The loss of the
boats cannot thus be blamed entirely on respondent but it can not be denied that his initial action may have
contributed to the deterioration of the sea-worthiness of the boats."cralaw virtua1aw library
The OCA recommended that respondent be FINED in the amount of P5,000.00 for negligence in the
performance of his duties.

The Court adopts the recommendation of the Office of the Court Administrator.

The OCA did not err in holding that respondent sheriff was guilty of negligence. The refusal of the
Philippine Coast Guard to initially take custody of the flatboats should have prompted him to forthwith
ask the trial court for an order to have the custody of the flatboats transferred to the Philippine Coast
Guard. He delayed in seeking for such a court order. But while respondent failed to thusly implement the
writ of preliminary attachment and to safekeep the property in his custody, 1 it would appear that he
exerted efforts to protect the flatboats. The eventual deterioration and loss of the boats had, in fact, been
caused by calamities beyond his control. Given the circumstances, by and large extant from the records of
the case, the Court deems it appropriate to impose on respondent a fine but on the reduced amount of from
P5,000.00 recommended by the OCA to P3,000.00.

WHEREFORE, the Court, finding Rodolfo A. Alcantara, Sheriff IV of the Regional Trial Court of Villasis,
Pangasinan, Branch 50, guilty of simple negligence, hereby imposes upon him a FINE of THREE
THOUSAND (P3,000.00) PESOS but warns that a repetition of the same or like infraction will be dealt with
severely.

SO ORDERED.

[G.R. No. 143133. June 5, 2002.]

BELGIAN OVERSEAS CHARTERING AND SHIPPING N.V. and JARDINE DAVIES TRANSPORT SERVICES,
INC., Petitioners, v. PHILIPPINE FIRST INSURANCE CO., INC., Respondent.

DECISION

PANGANIBAN, J.:

Proof of the delivery of goods in good order to a common carrier and of their arrival in bad order at their destination constitutes
prima facie fault or negligence on the part of the carrier. If no adequate explanation is given as to how the loss, the destruction or
the deterioration of the goods happened, the carrier shall be held liable therefor.

Statement of the Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the July 15, 1998 Decision 1 and the May 2, 2000
Resolution 2 of the Court of Appeals 3 (CA) in CA-G.R. CV No. 53571. The decretal portion of the Decision reads as follows

"WHEREFORE, in the light of the foregoing disquisition, the decision appealed from is hereby REVERSED and SET ASIDE.
Defendants-appellees are ORDERED to jointly and severally pay plaintiffs-appellants the following

‘1) FOUR Hundred Fifty One Thousand Twenty-Seven Pesos and 32/100 (P451,027.32) as actual damages, representing the value of
the damaged cargo, plus interest at the legal rate from the time of filing of the complaint on July 25, 1991, until fully paid;

‘2) Attorney’s fees amounting to 20% of the claim; and

‘3) Costs of suit." ‘ 4

The assailed Resolution denied petitioner’s Motion for Reconsideration.

The CA reversed the Decision of the Regional Trial Court (RTC) of Makati City (Branch 134), which had disposed as follows

"WHEREFORE, in view of the foregoing, judgment is hereby rendered, dismissing the complaint, as well as defendant’s
counterclaim." 5

The Facts

The factual antecedents of the case are summarized by the Court of Appeals in this wise

"On June 13, 1990, CMC Trading A.G. shipped on board the M/V ‘Anangel Sky’ at Hamburg, Germany 242 coils of various Prime
Cold Rolled Steel sheets for transportation to Manila consigned to the Philippine Steel Trading Corporation. On July 28, 1990, M/V
Anangel Sky arrived at the port of Manila and, within the subsequent days, discharged the subject cargo. Four (4) coils were found
to be in bad order B.O. Tally sheet No. 154974. Finding the four (4) coils in their damaged state to be unfit for the intended purpose,
the consignee Philippine Steel Trading Corporation declared the same as total loss.

"Despite receipt of a formal demand, defendants-appellees refused to submit to the consignee’s claim. Consequently, plaintiff-
appellant paid the consignee five hundred six thousand eighty six & 50/100 pesos (P506,086.50), and was subrogated to the latter’s
rights and causes of action against defendants-appellees. Subsequently, plaintiff-appellant instituted this complaint for recovery of
the amount paid by them, to the consignee as insured.

"Impugning the propriety of the suit against them, defendants-appellees imputed that the damage and/or loss was due to pre-
shipment damage, to the inherent nature, vice or defect of the goods, or to perils, danger and accidents of the sea, or to
insufficiency of packing thereof, or to the act or omission of the shipper of the goods or their representatives. In addition thereto,
defendants-appellees argued that their liability, if there be any, should not exceed the limitations of liability provided for in the bill
of lading and other pertinent laws. Finally, defendants-appellees averred that, in any event, they exercised due diligence and
foresight required by law to prevent any damage/loss to said shipment." 6

Ruling of the Trial Court

The RTC dismissed the Complaint because respondent had failed to prove its claims with the quantum of proof required by law. 7

It likewise debunked petitioners’ counterclaim, because respondent’s suit was not manifestly frivolous or primarily intended to
harass them. 8

Ruling of the Court of Appeals

In reversing the trial court, the CA ruled that petitioners were liable for the loss or the damage of the goods shipped, because they
had failed to overcome the presumption of negligence imposed on common carriers.

The CA further held as inadequately proven petitioners’ claim that the loss or the deterioration of the goods was due to pre-
shipment damage. 9 It likewise opined that the notation "metal envelopes rust stained and slightly dented" placed on the Bill of
Lading had not been the proximate cause of the damage to the four (4) coils. 10

As to the extent of petitioners’ liability, the CA held that the package limitation under COGSA was not applicable, because the
words "L/C No. 90/02447" indicated that a higher valuation of the cargo had been declared by the shipper. The CA, however,
affirmed the award of attorney’s fees.

Hence, this Petition. 11

Issues

In their Memorandum, petitioners raise the following issues for the Court’s consideration

"Whether or not plaintiff by presenting only one witness who has never seen the subject shipment and whose testimony is purely
hearsay is sufficient to pave the way for the applicability of Article 1735 of the Civil Code;

II

"Whether or not the consignee/plaintiff filed the required notice of loss within the time required by law;

III
"Whether or not a notation in the bill of lading at the time of loading is sufficient to show pre-shipment damage and to exempt
herein defendants from liability;

IV

"Whether or not the "PACKAGE LIMITATION" of liability under Section 4 (5) of COGSA is applicable to the case at bar." 12

In sum, the issues boil down to three

1. Whether petitioners have overcome the presumption of negligence of a common carrier

2. Whether the notice of loss was timely filed

3. Whether the package limitation of liability is applicable

This Court’s Ruling

The Petition is partly meritorious.

First Issue

Proof of Negligence

Petitioners contend that the presumption of fault imposed on common carriers should not be applied on the basis of the lone
testimony offered by private Respondent. The contention is untenable.

Well-settled is the rule that common carriers, from the nature of their business and for reasons of public policy, are bound to
observe extraordinary diligence and vigilance with respect to the safety of the goods and the passengers they transport. 13 Thus,
common carriers are required to render service with the greatest skill and foresight and "to use all reason[a]ble means to ascertain
the nature and characteristics of the goods tendered for shipment, and to exercise due care in the handling and stowage, including
such methods as their nature requires." 14 The extraordinary responsibility lasts from the time the goods are unconditionally
placed in the possession of and received for transportation by the carrier until they are delivered, actually or constructively, to the
consignee or to the person who has a right to receive them. 15

This strict requirement is justified by the fact that, without a hand or a voice in the preparation of such contract, the riding public
enters into a contract of transportation with common carriers. 16 Even if it wants to, it cannot submit its own stipulations for their
approval. 17 Hence, it merely adheres to the agreement prepared by them.

Owing to this high degree of diligence required of them, common carriers, as a general rule, are presumed to have been at fault or
negligent if the goods they transported deteriorated or got lost or destroyed. 18 That is, unless they prove that they exercised
extraordinary diligence in transporting the goods. 19 In order to avoid responsibility for any loss or damage, therefore, they have
the burden of proving that they observed such diligence. 20

However, the presumption of fault or negligence will not arise 21 if the loss is due to any of the following causes: (1) flood, storm,
earthquake, lightning, or other natural disaster or calamity; (2) an act of the public enemy in war, whether international or civil; (3)
an act or omission of the shipper or owner of the goods; (4) the character of the goods or defects in the packing or the container; or
(5) an order or act of competent public authority. 22 This is a closed list. If the cause of destruction, loss or deterioration is other
than the enumerated circumstances, then the carrier is liable therefor. 23

Corollary to the foregoing, mere proof of delivery of the goods in good order to a common carrier and of their arrival in bad order
at their destination constitutes a prima facie case of fault or negligence against the carrier. If no adequate explanation is given as to
how the deterioration, the loss or the destruction of the goods happened, the transporter shall be held responsible. 24

That petitioners failed to rebut the prima facie presumption of negligence is revealed in the case at bar by a review of the records
and more so by the evidence adduced by Respondent.25cralaw:red

First, as stated in the Bill of Lading, petitioners received the subject shipment in good order and condition in Hamburg, Germany.
26

Second, prior to the unloading of the cargo, an Inspection Report 27 prepared and signed by representatives of both parties showed
the steel bands broken, the metal envelopes rust-stained and heavily buckled, and the contents thereof exposed and
rusty.chanrob1es virtua1 law library

Third, Bad Order Tally Sheet No. 154979 28 issued by Jardine Davies Transport Services, Inc., stated that the four coils were in bad
order and condition. Normally, a request for a bad order survey is made in case there is an apparent or a presumed loss or damage.
29

Fourth, the Certificate of Analysis 30 stated that, based on the sample submitted and tested, the steel sheets found in bad order
were wet with fresh water.
Fifth, petitioners — in a letter 31 addressed to the Philippine Steel Coating Corporation and dated October 12, 1990 — admitted
that they were aware of the condition of the four coils found in bad order and condition.

These facts were confirmed by Ruperto Esmerio, head checker of BM Santos Checkers Agency. Pertinent portions of his testimony
are reproduced hereunder

"Q. Mr. Esmerio, you mentioned that you are a Head Checker. Will you inform the Honorable Court with what company you are
connected?

A. BM Santos Checkers Agency, sir.

Q. How is BM Santos Checkers Agency related or connected with defendant Jardine Davies Transport Services?

A. It is the company who contracts the checkers, sir.

Q. You mentioned that you are a Head Checker, will you inform this Honorable Court your duties and responsibilities?

A. I am the representative of BM Santos on board the vessel, sir, to supervise the discharge of cargoes.

x           x          x

Q. On or about August 1, 1990, were you still connected or employed with BM Santos as a Head Checker?

A. Yes, sir.

Q. And, on or about that date, do you recall having attended the discharging and inspection of cold steel sheets in coil on board the
MV/AN ANGEL SKY?

A. Yes, sir, I was there.

x           x          x

Q. Based on your inspection since you were also present at that time, will you inform this Honorable Court the condition or the
appearance of the bad order cargoes that were unloaded from the MV/ANANGEL SKY?

ATTY. MACAMAY

Objection, Your Honor, I think the document itself reflects the condition of the cold steel sheets and the best evidence is the
document itself, Your Honor that shows the condition of the steel sheets.

COURT

Let the witness answer.

A. The scrap of the cargoes is broken already and the rope is loosen and the cargoes are dent on the sides." 32

All these conclusively prove the fact of shipment in good order and condition and the consequent damage to the four coils while in
the possession of petitioner, 33 who notably failed to explain why. 34

Further, petitioners failed to prove that they observed the extraordinary diligence and precaution which the law requires a
common carrier to know and to follow to avoid damage to or destruction of the goods entrusted to it for safe carriage and delivery.
35

True, the words "metal envelopes rust stained and slightly dented" were noted on the Bill of Lading; however, there is no showing
that petitioners exercised due diligence to forestall or lessen the loss. 36 Having been in the service for several years, the master of
the vessel should have known at the outset that metal envelopes in the said state would eventually deteriorate when not properly
stored while in transit. 37 Equipped with the proper knowledge of the nature of steel sheets in coils and of the proper way of
transporting them, the master of the vessel and his crew should have undertaken precautionary measures to avoid possible
deterioration of the cargo. But none of these measures was taken. 38 Having failed to discharge the burden of proving that they
have exercised the extraordinary diligence required by law, petitioners cannot escape liability for the damage to the four coils. 39

In their attempt to escape liability, petitioners further contend that they are exempted from liability under Article 1734(4) of the
Civil Code. They cite the notation "metal envelopes rust stained and slightly dented" printed on the Bill of Lading as evidence that
the character of the goods or defect in the packing or the containers was the proximate cause of the damage. We are not convinced.

From the evidence on record, it cannot be reasonably concluded that the damage to the four coils was due to the condition noted
on the Bill of Lading. 40 The aforecited exception refers to cases when goods are lost or damaged while in transit as a result of the
natural decay of perishable goods or the fermentation or evaporation of substances liable therefor, the necessary and natural wear
of goods in transport, defects in packages in which they are shipped, or the natural propensities of animals. 41 None of these is
present in the instant case.

Further, even if the fact of improper packing was known to the carrier or its crew or was apparent upon ordinary observation, it is
not relieved of liability for loss or injury resulting therefrom, once it accepts the goods notwithstanding such condition. 42 Thus,
petitioners have not successfully proven the application of any of the aforecited exceptions in the present case. 43

Second Issue

Notice of Loss

Petitioners claim that pursuant to Section 3, paragraph 6 of the Carriage of Goods by Sea Act 44 (COGSA), respondent should have
filed its Notice of Loss within three days from delivery. They assert that the cargo was discharged on July 31, 1990, but that
respondent filed its Notice of Claim only on September 18, 1990. 45

We are not persuaded. First, the above-cited provision of COGSA provides that the notice of claim need not be given if the state of
the goods, at the time of their receipt, has been the subject of a joint inspection or survey. As stated earlier, prior to unloading the
cargo, an Inspection Report 46 as to the condition of the goods was prepared and signed by representatives of both parties. 47

Second, as stated in the same provision, a failure to file a notice of claim within three days will not bar recovery if it is nonetheless
filed within one year. 48 This one-year prescriptive period also applies to the shipper, the consignee, the insurer of the goods or any
legal holder of the bill of lading. 49

In Loadstar Shipping Co., Inc. v. Court of Appeals, 50 we ruled that a claim is not barred by prescription as long as the one-year
period has not lapsed. Thus, in the words of the ponente, Chief Justice Hilario G. Davide Jr.

"Inasmuch as neither the Civil Code nor the Code of Commerce states a specific prescriptive period on the matter, the Carriage of
Goods by Sea Act (COGSA) — which provides for a one-year period of limitation on claims for loss of, or damage to, cargoes
sustained during transit — may be applied suppletorily to the case at bar."cralaw virtua1aw library

In the present case, the cargo was discharged on July 31, 1990, while the Complaint 51 was filed by respondent on July 25, 1991,
within the one-year prescriptive period.

Third Issue

Package Limitation

Assuming arguendo they are liable for respondent’s claims, petitioners contend that their liability should be limited to US$500 per
package as provided in. the Bill of Lading and by Section 4(5) 52 of COGSA. 53

On the other hand, respondent argues that Section 4(5) of COGSA is inapplicable, because the value of the subject shipment was
declared by petitioners beforehand, as evidenced by the reference to and the insertion of the Letter of Credit or "L/C No. 90/02447"
in the said Bill of Lading. 54

A bill of lading serves two functions. First, it is a receipt for the goods shipped. 55 Second, it is a contract by which three parties —
namely, the shipper, the carrier, and the consignee — undertake specific responsibilities and assume stipulated obligations. 56 In a
nutshell, the acceptance of the bill of lading by the shipper and the consignee, with full knowledge of its contents, gives rise to the
presumption that it constituted a perfected and binding contract. 57

Further, a stipulation in the bill of lading limiting to a certain sum the common carrier’s liability for loss or destruction of a cargo —
unless the shipper or owner declares a greater value 58 — is sanctioned by law. 59 There are, however, two conditions to be
satisfied: (1) the contract is reasonable and just under the circumstances, and (2) it has been fairly and freely agreed upon by the
parties. 60 The rationale for this rule is to bind the shippers by their agreement to the value (maximum valuation) of their goods. 61

It is to be noted, however, that the Civil Code does not limit the liability of the common carrier to a fixed amount per package. 62 In
all matters not regulated by the Civil Code, the right and the obligations of common carriers shall be governed by the Code of
Commerce and special laws. 63 Thus, the COGSA, which is suppletory to the provisions of the Civil Code, supplements the latter
by establishing a statutory provision limiting the carrier’s liability in the absence of a shipper’s declaration of a higher value in the
bill of lading. 64 The provisions on limited liability are as much a part of the bill of lading as though physically in it and as though
placed there by agreement of the parties. 65

In the case before us, there was no stipulation in the Bill of Lading 66 limiting the carrier’s liability. Neither did the shipper declare
a higher valuation of the goods to be shipped. This fact notwithstanding, the insertion of the words "L/C No. 90/02447 cannot be
the basis for petitioners’ liability.

First, a notation in the Bill of Lading which indicated the amount of the Letter of Credit obtained by the shipper for the importation
of steel sheets did not effect a declaration of the value of the goods as required by the bill. 67 That notation was made only for the
convenience of the shipper and the bank processing the Letter of Credit. 68
Second, in Keng Hua Paper Products v. Court of Appeals, 69 we held that a bill of lading was separate from the Other Letter of
Credit arrangements. We ruled, thus

"(T)he contract of carriage, as stipulated in the bill of lading in the present case, must be treated independently of the contract of
sale between the seller and the buyer, and the contract of issuance of a letter of credit between the amount of goods described in the
commercial invoice in the contract of sale and the amount allowed in the letter of credit will not affect the validity and
enforceability of the contract of carriage as embodied in the bill of lading. As the bank cannot be expected to look beyond the
documents presented to it by the seller pursuant to the letter of credit, neither can the carrier be expected to go beyond the
representations of the shipper in the bill of lading and to verify their accuracy vis-a-vis the commercial invoice and the letter of
credit. Thus, the discrepancy between the amount of goods indicated in the invoice and the amount in the bill of lading cannot
negate petitioner’s obligation to private respondent arising from the contract of transportation." 70

In the light of the foregoing, petitioners’ liability should be computed based on US$500 per package and not on the per metric ton
price declared in the Letter of Credit. 71 In Eastern Shipping Lines, Inc. v. Intermediate Appellate Court, 72 we explained the
meaning of package

"When what would ordinarily be considered packages are shipped in a container supplied by the carrier and the number of such
units is disclosed in the shipping documents, each of those units and not the container constitutes the ‘package’ referred to in the
liability limitation provision of Carriage of Goods by Sea Act."cralaw virtua1aw library

Considering, therefore, the ruling in Eastern Shipping Lines and the fact that the Bill of Lading clearly disclosed the contents of the
containers, the number of units, as well as the nature of the steel sheets, the four damaged coils should be considered as the
shipping unit subject to the US$500 limitation.

WHEREFORE, the Petition is partly granted and the assailed Decision MODIFIED. Petitioners’ liability is reduced to US$2,000 plus
interest at the legal rate of six percent from the time of the filing of the Complaint on July 25, 1991 until the finality of this Decision,
and 12 percent thereafter until fully paid. No pronouncement as to costs.

G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,

vs.

THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

FELICIANO, J:

In the early morning of 15 November 1975 — at about 1:30 a.m. — private respondent Leonardo Dionisio was on his
way home — he lived in 1214-B Zamora Street, Bangkal, Makati — from a cocktails-and-dinner meeting with his boss,
the general manager of a marketing corporation. During the cocktails phase of the evening, Dionisio had taken "a shot
or two" of liquor. Dionisio was driving his Volkswagen car and had just crossed the intersection of General Lacuna
and General Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down General Lacuna
Street, when his car headlights (in his allegation) suddenly failed. He switched his headlights on "bright" and
thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump truck, owned by and
registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right hand side of
General Lacuna Street (i.e., on the right hand side of a person facing in the same direction toward which Dionisio's car
was proceeding), facing the oncoming traffic. The dump truck was parked askew (not parallel to the street curb) in
such a manner as to stick out onto the street, partly blocking the way of oncoming traffic. There were no lights nor any
so-called "early warning" reflector devices set anywhere near the dump truck, front or rear. The dump truck had
earlier that evening been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission of
his employer Phoenix, in view of work scheduled to be carried out early the following morning, Dionisio claimed that
he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dump truck.
As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a "nervous
breakdown" and loss of two gold bridge dentures.

Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that the
legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truck
entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered that the proximate
cause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident, while under the
influence of liquor, without his headlights on and without a curfew pass. Phoenix also sought to establish that it had
exercised due rare in the selection and supervision of the dump truck driver.

The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the latter:

(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and the replacement of the lost
dentures of plaintiff;

(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected income for plaintiff brought
about the accident in controversy and which is the result of the negligence of the defendants;

(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages for the unexpected and sudden
withdrawal of plaintiff from his lifetime career as a marketing man; mental anguish, wounded feeling, serious
anxiety, social humiliation, besmirched reputation, feeling of economic insecurity, and the untold sorrows and
frustration in life experienced by plaintiff and his family since the accident in controversy up to the present time;

(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the wanton disregard of defendants to
settle amicably this case with the plaintiff before the filing of this case in court for a smaller amount.

(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for attorney's fees; and

(6) The cost of suit. (Emphasis supplied)

Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476 affirmed the
decision of the trial court but modified the award of damages to the following extent:

1. The award of P15,000.00 as compensatory damages was reduced to P6,460.71, the latter being the only amount that
the appellate court found the plaintiff to have proved as actually sustained by him;

2. The award of P150,000.00 as loss of expected income was reduced to P100,000.00, basically because Dionisio had
voluntarily resigned his job such that, in the opinion of the appellate court, his loss of income "was not solely
attributable to the accident in question;" and

3. The award of P100,000.00 as moral damages was held by the appellate court as excessive and unconscionable and
hence reduced to P50,000.00.

The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs remained untouched.

This decision of the Intermediate Appellate Court is now before us on a petition for review.

Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in which the
dump truck was parked along General Lacuna Street on the basis of which both courts drew the inference that there
was negligence on the part of Carbonel, the dump truck driver, and that this negligence was the proximate cause of
the accident and Dionisio's injuries. We note, however, that both courts failed to pass upon the defense raised by
Carbonel and Phoenix that the true legal and proximate cause of the accident was not the way in which the dump
truck had been parked but rather the reckless way in which Dionisio had driven his car that night when he smashed
into the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded that Dionisio was
"in some way, negligent" but apparently failed to see the relevance of Dionisio's negligence and made no further
mention of it. We have examined the record both before the trial court and the Intermediate Appellate Court and we
find that both parties had placed into the record sufficient evidence on the basis of which the trial court and the
appellate court could have and should have made findings of fact relating to the alleged reckless manner in which
Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend that if there was negligence in the
manner in which the dump truck was parked, that negligence was merely a "passive and static condition" and that
private respondent Dionisio's recklessness constituted an intervening, efficient cause determinative of the accident
and the injuries he sustained. The need to administer substantial justice as between the parties in this case, without
having to remand it back to the trial court after eleven years, compels us to address directly the contention put
forward by the petitioners and to examine for ourselves the record pertaining to Dionisio's alleged negligence which
must bear upon the liability, or extent of liability, of Phoenix and Carbonel.

There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a curfew
pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just before the
collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights before contact with
the dump truck or whether those headlights accidentally malfunctioned moments before the collision; and (d)
whether Dionisio was intoxicated at the time of the accident.

As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person of Dionisio
immediately after the accident nor was any found in his car. Phoenix's evidence here consisted of the testimony of
Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for emergency treatment
immediately after the accident. At the Makati Medical Center, a nurse took off Dionisio's clothes and examined them
along with the contents of pockets together with Patrolman Cuyno. 1 Private respondent Dionisio was not able to
produce any curfew pass during the trial. Instead, he offered the explanation that his family may have misplaced his
curfew pass. He also offered a certification (dated two years after the accident) issued by one Major Benjamin N.
Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to
have authority to issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that private
respondent Dionisio had a valid curfew pass. This certification did not, however, specify any pass serial number or
date or period of effectivity of the supposed curfew pass. We find that private respondent Dionisio was unable to
prove possession of a valid curfew pass during the night of the accident and that the preponderance of evidence
shows that he did not have such a pass during that night. The relevance of possession or non-possession of a curfew
pass that night lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home and
whether he had indeed purposely put out his headlights before the accident, in order to avoid detection and possibly
arrest by the police in the nearby police station for travelling after the onset of curfew without a valid curfew pass.

On the second issue — whether or not Dionisio was speeding home that night — both the trial court and the appellate
court were completely silent.

The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of the accident
almost immediately after it occurred, the police station where he was based being barely 200 meters away. Patrolman
Cuyno testified that people who had gathered at the scene of the accident told him that Dionisio's car was "moving
fast" and did not have its headlights on. 2 Dionisio, on the other hand, claimed that he was travelling at a moderate
speed at 30 kilometers per hour and had just crossed the intersection of General Santos and General Lacuna Streets
and had started to accelerate when his headlights failed just before the collision took place. 3

Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag within any of the
recognized exceptions to the hearsay rule since the facts he testified to were not acquired by him through official
information and had not been given by the informants pursuant to any duty to do so. Private respondent's objection
fails to take account of the fact that the testimony of Patrolman Cuyno is admissible not under the official records
exception to the hearsay rule 4 but rather as part of the res gestae. 5 Testimonial evidence under this exception to the
hearsay rule consists of excited utterances made on the occasion of an occurrence or event sufficiently startling in
nature so as to render inoperative the normal reflective thought processes of the observer and hence made as a
spontaneous reaction to the occurrence or event, and not the result of reflective thought. 6

We think that an automobile speeding down a street and suddenly smashing into a stationary object in the dead of
night is a sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers who
happened to be around at that time. The testimony of Patrolman Cuyno was therefore admissible as part of the res
gestae and should have been considered by the trial court. Clearly, substantial weight should have been ascribed to
such testimony, even though it did not, as it could not, have purported to describe quantitatively the precise velocity
at winch Dionisio was travelling just before impact with the Phoenix dump truck.

A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights accidentally
malfunctioned, just moments before the accident. The Intermediate Appellate Court expressly found that the
headlights of Dionisio's car went off as he crossed the intersection but was non-committal as to why they did so. It is
the petitioners' contention that Dionisio purposely shut off his headlights even before he reached the intersection so as
not to be detected by the police in the police precinct which he (being a resident in the area) knew was not far away
from the intersection. We believe that the petitioners' theory is a more credible explanation than that offered by
private respondent Dionisio — i.e., that he had his headlights on but that, at the crucial moment, these had in some
mysterious if convenient way malfunctioned and gone off, although he succeeded in switching his lights on again at
"bright" split seconds before contact with the dump truck.

A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence here
consisted of the testimony of Patrolman Cuyno to the effect that private respondent Dionisio smelled of liquor at the
time he was taken from his smashed car and brought to the Makati Medical Center in an unconscious condition. 7
This testimony has to be taken in conjunction with the admission of Dionisio that he had taken "a shot or two" of
liquor before dinner with his boss that night. We do not believe that this evidence is sufficient to show that Dionisio
was so heavily under the influence of liquor as to constitute his driving a motor vehicle per se an act of reckless
imprudence. 8 There simply is not enough evidence to show how much liquor he had in fact taken and the effects of
that upon his physical faculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of
hard liquor may affect different people differently.

The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio was
negligent the night of the accident. He was hurrying home that night and driving faster than he should have been.
Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos Streets and
thus did not see the dump truck that was parked askew and sticking out onto the road lane.

Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal and
proximate cause of the accident and of Dionisio's injuries was the wrongful — or negligent manner in which the
dump truck was parked in other words, the negligence of petitioner Carbonel. That there was a reasonable
relationship between petitioner Carbonel's negligence on the one hand and the accident and respondent's injuries on
the other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio's car with the dump truck
was a natural and foreseeable consequence of the truck driver's negligence.

The petitioners, however, urge that the truck driver's negligence was merely a "passive and static condition" and that
private respondent Dionisio's negligence was an "efficient intervening cause and that consequently Dionisio's
negligence must be regarded as the legal and proximate cause of the accident rather than the earlier negligence of
Carbonel. We note that the petitioners' arguments are drawn from a reading of some of the older cases in various
jurisdictions in the United States but we are unable to persuade ourselves that these arguments have any validity for
our jurisdiction. We note, firstly, that even in the United States, the distinctions between "cause" and "condition"
which the 'petitioners would have us adopt have already been "almost entirely discredited." Professors and Keeton
make this quite clear:

Cause and condition. Many courts have sought to distinguish between the active "cause" of the harm and the existing
"conditions" upon which that cause operated. If the defendant has created only a passive static condition which made
the damage possible, the defendant is said not to be liable. But so far as the fact of causation is concerned, in the sense
of necessary antecedents which have played an important part in producing the result it is quite impossible to
distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the
result of other active forces which have gone before. The defendant who spills gasoline about the premises creates a
"condition," but the act may be culpable because of the danger of fire. When a spark ignites the gasoline, the condition
has done quite as much to bring about the fire as the spark; and since that is the very risk which the defendant has
created, the defendant will not escape responsibility. Even the lapse of a considerable time during which the
"condition" remains static will not necessarily affect liability; one who digs a trench in the highway may still be liable
to another who fans into it a month afterward. "Cause" and "condition" still find occasional mention in the decisions;
but the distinction is now almost entirely discredited. So far as it has any validity at all, it must refer to the type of case
where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new
force intervenes. But even in such cases, it is not the distinction between "cause" and "condition" which is important
but the nature of the risk and the character of the intervening cause. 9

We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was rather an
indispensable and efficient cause. The collision between the dump truck and the private respondent's car would in an
probability not have occurred had the dump truck not been parked askew without any warning lights or reflector
devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this risk, the truck driver must be held responsible. In our view,
Dionisio's negligence, although later in point of time than the truck driver's negligence and therefore closer to the
accident, was not an efficient intervening or independent cause. What the Petitioners describe as an "intervening
cause" was no more than a foreseeable consequent manner which the truck driver had parked the dump truck. In
other words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not
to impose upon them the very risk the truck driver had created. Dionisio's negligence was not of an independent and
overpowering nature as to cut, as it were, the chain of causation in fact between the improper parking of the dump
truck and the accident, nor to sever the juris vinculum of liability. It is helpful to quote once more from Professor and
Keeton:

Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience is reasonably to
be anticipated or one which the defendant has reason to anticipate under the particular circumstances, the defendant
may be negligence among other reasons, because of failure to guard against it; or the defendant may be negligent only
for that reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and customary wind
arising later wig spread it beyond the defendant's own property, and therefore to take precautions to prevent that
event. The person who leaves the combustible or explosive material exposed in a public place may foresee the risk of
fire from some independent source. ... In all of these cases there is an intervening cause combining with the
defendant's conduct to produce the result and in each case the defendant's negligence consists in failure to protect the
plaintiff against that very risk.

Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial and important part
of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces
are within the scope original risk, and hence of the defendant's negligence. The courts are quite generally agreed that
intervening causes which fall fairly in this category will not supersede the defendant's responsibility.

Thus it has been held that a defendant will be required to anticipate the usual weather of the vicinity, including all
ordinary forces of nature such as usual wind or rain, or snow or frost or fog or even lightning; that one who leaves an
obstruction on the road or a railroad track should foresee that a vehicle or a train will run into it; ...

The risk created by the defendant may include the intervention of the foreseeable negligence of others. ... [The
standard of reasonable conduct may require the defendant to protect the plaintiff against 'that occasional negligence
which is one of the ordinary incidents of human life, and therefore to be anticipated.' Thus, a defendant who blocks
the sidewalk and forces the plaintiff to walk in a street where the plaintiff will be exposed to the risks of heavy traffic
becomes liable when the plaintiff is run down by a car, even though the car is negligently driven; and one who parks
an automobile on the highway without lights at night is not relieved of responsibility when another negligently drives
into it. --- 10

We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate
cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may
recover damages though such damages are subject to mitigation by the courts (Article 2179, Civil Code of the
Philippines).

Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of petitioners is
that while the petitioner truck driver was negligent, private respondent Dionisio had the "last clear chance" of
avoiding the accident and hence his injuries, and that Dionisio having failed to take that "last clear chance" must bear
his own injuries alone. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart
vs. Smith 11 but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the
Philippines. The historical function of that doctrine in the common law was to mitigate the harshness of another
common law doctrine or rule that of contributory negligence. 12 The common law rule of contributory negligence
prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively
minor as compared with the wrongful act or omission of the defendant. 13 The common law notion of last clear
chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had
the last clear chance to avoid the casualty and failed to do so. 14 Accordingly, it is difficult to see what role, if any, the
common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory
negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the
Civil Code of the Philippines. 15

Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and
utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article
2179, the task of a court, in technical terms, is to determine whose negligence — the plaintiff's or the defendant's —
was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or
physics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative
location in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the
relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act
or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the
community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from
responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligence
which had become necessary to avoid the peril precisely created by the truck driver's own wrongful act or omission.
To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must
respond for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to
reduce the risks and burdens of living in society and to allocate them among the members of society. To accept the
petitioners' pro-position must tend to weaken the very bonds of society.

Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix 16 in
supervising its employees properly and adequately. The respondent appellate court in effect found, correctly in our
opinion, that Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix had
allowed its truck driver to bring the dump truck to his home whenever there was work to be done early the following
morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which
the dump truck is parked when away from company premises, is an affirmative showing of culpa in vigilando on the
part of Phoenix.

Turning to the award of damages and taking into account the comparative negligence of private respondent Dionisio
on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we believe that the demands of
substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded
by the respondent appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's
fees and costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by petitioners
Carbonel and Phoenix who shall be solidarity liable therefor to the former. The award of exemplary damages and
attorney's fees and costs shall be borne exclusively by the petitioners. Phoenix is of course entitled to reimbursement
from Carbonel. 18 We see no sufficient reason for disturbing the reduced award of damages made by the respondent
appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount of
compensatory damages, loss of expected income and moral damages private respondent Dionisio is entitled to by 20%
of such amount. Costs against the petitioners.

SO ORDERED.

G.R. No. L-7664             August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.

BAUTISTA ANGELO, J.:

Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of P50,000 as damages, P5,000 as
funeral expenses, and P11,000 as attorneys' fees, for the death of their son Dominador Ong in one of the swimming pools
operated by defendant.

Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers that his death was caused by
his own negligence or by unavoidable accident. Defendant also avers that it had exercised due diligence in the selection of, and
supervision over, its employees and that it had observed the diligence required by law under the circumstances.

After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint without pronouncement
as to costs. Plaintiffs took the case on appeal directly to this Court because the amount involved exceeds the sum of P50,000.

Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon City, to which people are
invited and for which a nominal fee of P0.50 for adults and P0.20 for children is charged. The main pool it between two small
pools of oval shape known as the "Wading pool" and the "Beginners Pool." There are diving boards in the big pools and the
depths of the water at different parts are indicated by appropriate marks on the wall. The care and supervision of the pools and
the users thereof is entrusted to a recreational section composed of Simeon Chongco as chief, Armando Rule, a male nurse, and
six lifeguards who had taken the life-saving course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its
patrons, defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator. There is also a
sanitary inspector who is in charge of a clinic established for the benefit of the patrons. Defendant has also on display in a
conspicuous place certain rules and regulations governing the use of the pools, one of which prohibits the swimming in the pool
alone or without any attendant. Although defendant does not maintain a full-time physician in the swimming pool compound, it
has however a nurse and a sanitary inspector ready to administer injections or operate the oxygen resuscitator if the need
should arise.

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school student and boy scout, and his
brothers Ruben and Eusebio, went to defendant's swimming pools. This was not the first time that the three brothers had gone
to said natatorium for they had already been there four or five times before. They arrived at the natatorium at about 1:45 p.m.
After paying the requisite admission fee, they immediately went to one of the small pools where the water was shallow. At
about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in an adjoining building to drink a bottle
of coke. Upon hearing this, Ruben and Eusebio went to the bigger pool leaving Dominador in the small pool and so they did not
see the latter when he left the pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the pool
compound, namely, Manuel Abaño and Mario Villanueva. The tour of duty of Abaño was from 8:00 to 12:00 in the morning and
from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00
that afternoon, there were about twenty bathers inside the pool area and Manuel Abaño was going around the pools to observe
the bathers in compliance with the instructions of his chief.

Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of Andres Hagad, Jr., that
somebody was swimming under water for quite a long time. Another boy informed lifeguard Manuel Abaño of the same
happening and Abaño immediately jumped into the big swimming pool and retrieved the apparently lifeless body of Dominador
Ong from the bottom. The body was placed at the edge of the pool and Abaño immediately applied manual artificial respiration.
Soon after, male nurse Armando Rule came to render assistance, followed by sanitary inspector Iluminado Vicente who, after
being called by phone from the clinic by one of the security guards, boarded a jeep carrying with him the resuscitator and a
medicine kit, and upon arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order to
fetch Dr. Ayuyao from the University of the Philippines. Meanwhile, Abaño continued the artificial manual respiration, and when
this failed to revive him, they applied the resuscitator until the two oxygen tanks were exhausted. Not long thereafter, Dr.
Ayuyao arrived with another resuscitator, but the same became of no use because he found the boy already dead. The doctor
ordered that the body be taken to the clinic.

In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department of Quezon City and in the
investigation boys Ruben Ong and Andres Hagad, Jr. gave written statements. On the following day, July 6, 1952, an autopsy was
performed by Dr. Enrique V. de los Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the body
of the deceased the following: an abrasion on the right elbow lateral aspect; contusion on the right forehead; hematoma on the
scalp, frontal region, right side; a congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the
face and on the nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in the heart; congestion in the
visceral organs, and brownish fluid in the stomach. The death was due to asphyxia by submersion in water.

The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the negligence of defendant
and/or its employees so as to entitle plaintiffs to recover damages.

The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The first article provides that
"whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damages
done." Such fault or negligence is called quasi-delict. Under the second article, this obligation is demandable not only for one's
own acts or omissions but also for those of persons for whom one is responsible. In addition, we may quote the following
authorities cited in the decision of the trial court:

"The rule is well settled that the owners of resorts to which people generally are expressly or by implication invited are
legally bound to exercise ordinary care and prudence in the management and maintenance of such resorts, to the end
of making them reasonably safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).

"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of ordinary care in
providing for his safety, without the fault of the patron, he is not, however, in any sense deemed to be the insurer of
the safety of patrons. And the death of a patron within his premises does not cast upon him the burden of excusing
himself from any presumption of negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water
Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that there could be no recovery for the
death by drowning of a fifteen-year boy in defendant's natatorium, where it appeared merely that he was lastly seen
alive in water at the shallow end of the pool, and some ten or fifteen minutes later was discovered unconscious, and
perhaps lifeless, at the bottom of the pool, all efforts to resuscitate him being without avail.

Since the present action is one for damages founded on culpable negligence, the principle to be observed is that the person
claiming damages has the burden of proving that the damage is caused by the fault or negligence of the person from whom the
damage is claimed, or of one of his employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The
question then that arises is: Have appellants established by sufficient evidence the existence of fault or negligence on the part of
appellee so as to render it liable for damages for the death of Dominador Ong?

There is no question that appellants had striven to prove that appellee failed to take the necessary precaution to protect the
lives of its patrons by not placing at the swimming pools efficient and competent employees who may render help at a
moment's notice, and they ascribed such negligence to appellee because the lifeguard it had on the occasion minor Ong was
drowning was not available or was attending to something else with the result that his help came late. Thus, appellants tried to
prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad, Jr. detected that there was
a drowning person in the bottom of the big swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abaño did
not immediately respond to the alarm and it was only upon the third call that he threw away the magazine he was reading and
allowed three or four minutes to elapse before retrieving the body from the water. This negligence of Abaño, they contend, is
attributable to appellee.

But the claim of these two witnesses not only was vehemently denied by lifeguard Abaño, but is belied by the written
statements given by them in the investigation conducted by the Police Department of Quezon City approximately three hours
after the happening of the accident. Thus, these two boys admitted in the investigation that they narrated in their statements
everything they knew of the accident, but, as found by the trial, nowhere in said statements do they state that the lifeguard was
chatting with the security guard at the gate of the swimming pool or was reading a comic magazine when the alarm was given
for which reason he failed to immediately respond to the alarm. On the contrary, what Ruben Ong particularly emphasized
therein was that after the lifeguard heard the shouts for help, the latter immediately dived into the pool to retrieve the person
under water who turned out to be his brother. For this reason, the trial court made this conclusion: "The testimony of Ruben
Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to immediately respond to their call may therefore be
disregarded  because they are belied by their written statements. (Emphasis supplied.)

On the other hand, there is sufficient evidence to show that appellee has taken all necessary precautions to avoid danger to the
lives of its patrons or prevent accident which may cause their death. Thus, it has been shown that the swimming pools of
appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the
pools is painted with black colors so as to insure clear visibility. There is on display in a conspicuous place within the area certain
rules and regulations governing the use of the pools. Appellee employs six lifeguards who are all trained as they had taken a
course for that purpose and were issued certificates of proficiency. These lifeguards work on schedule prepared by their chief
and arranged in such a way as to have two guards at a time on duty to look after the safety of the bathers. There is a male nurse
and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are security guards who are available always
in case of emergency.

The record also shows that when the body of minor Ong was retrieved from the bottom of the pool, the employees of appellee
did everything possible to bring him back to life. Thus, after he was placed at the edge of the pool, lifeguard Abaño immediately
gave him manual artificial respiration. Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado
Vicente who brought with him an oxygen resuscitator. When they found that the pulse of the boy was abnormal, the inspector
immediately injected him with camphorated oil. When the manual artificial respiration proved ineffective they applied the
oxygen resuscitator until its contents were exhausted. And while all these efforts were being made, they sent for Dr. Ayuyao
from the University of the Philippines who however came late because upon examining the body he found him to be already
dead. All of the foregoing shows that appellee has done what is humanly possible under the circumstances to restore life to
minor Ong and for that reason it is unfair to hold it liable for his death.

Sensing that their former theory as regards the liability of appellee may not be of much help, appellants now switch to the
theory that even if it be assumed that the deceased is partly to be blamed for the unfortunate incident, still appellee may be
held liable under the doctrine of "last clear chance" for the reason that, having the last opportunity to save the victim, it failed to
do so.

We do not see how this doctrine may apply considering that the record does not show how minor Ong came into the big
swimming pool. The only thing the record discloses is that minor Ong informed his elder brothers that he was going to the locker
room to drink a bottle of coke but that from that time on nobody knew what happened to him until his lifeless body was
retrieved. The doctrine of last clear chance simply means that the negligence of a claimant does not preclude a recovery for the
negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his negligence. Or, "As the doctrine usually is stated, a person who has the
last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the negligence of
a third person which is imputed to his opponent, is considered in law solely responsible for the consequences of the accident."
(38 Am. Jur. pp. 900-902)

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in
planting himself in the wrong side of the road. But as we have already stated, the defendant was also negligent; and in
such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that
the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances, the law is that a person who has the
last clear chance to avoid the impending harm and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party. (Picart vs. Smith, 37 Phil., 809)

Since it is not known how minor Ong came into the big swimming pool and it being apparent that he went there without any
companion in violation of one of the regulations of appellee as regards the use of the pools, and it appearing that lifeguard
Aba_¤_o responded to the call for help as soon as his attention was called to it and immediately after retrieving the body all
efforts at the disposal of appellee had been put into play in order to bring him back to life, it is clear that there is no room for the
application of the doctrine now invoked by appellants to impute liability to appellee..

The last clear chance doctrine can never apply where the party charged is required to act instantaneously, and if the
injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered; at
least in cases in which any previous negligence of the party charged cannot be said to have contributed to the
injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of the trial court, which we find supported by the evidence: "There is
(also) a strong suggestion coming from the expert evidence presented by both parties that Dominador Ong might have dived
where the water was only 5.5 feet deep, and in so doing he might have hit or bumped his forehead against the bottom of the
pool, as a consequence of which he was stunned, and which to his drowning. As a boy scout he must have received instructions
in swimming. He knew, or have known that it was dangerous for him to dive in that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby affirm the same, without
pronouncement as to costs.

G.R. No. L-51806 November 8, 1988

CIVIL AERONAUTICS ADMINISTRATION, petitioner, vs. COURT OF APPEALS and ERNEST E. SIMKE, respondents.
CORTES, J.:

Assailed in this petition for review on certiorari is the decision of the Court of Appeals affirming the trial court decision which
reads as follows:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff the amount of P15,589.55 as
full reimbursement of his actual medical and hospital expenses, with interest at the legal rate from the
commencement of the suit; the amount of P20,200.00 as consequential damages; the amount of P30,000.00 as
moral damages; the amount of P40,000.00 as exemplary damages; the further amount of P20,000.00 as
attorney's fees and the costs [Rollo, p. 24].

The facts of the case are as follows:

Private respondent is a naturalized Filipino citizen and at the time of the incident was the Honorary Consul Geileral of Israel in
the Philippines.

In the afternoon of December 13, 1968, private respondent with several other persons went to the Manila International Airport
to meet his future son-in-law. In order to get a better view of the incoming passengers, he and his group proceeded to the
viewing deck or terrace of the airport.

While walking on the terrace, then filled with other people, private respondent slipped over an elevation about four (4) inches
high at the far end of the terrace. As a result, private respondent fell on his back and broke his thigh bone.

The next day, December 14, 1968, private respondent was operated on for about three hours.

Private respondent then filed an action for damages based on quasi-delict with the Court of First Instance of Rizal, Branch VII
against petitioner Civil Aeronautics Administration or CAA as the entity empowered "to administer, operate, manage, control,
maintain and develop the Manila International Airport ... ." [Sec. 32 (24), R.A. 776].

Said claim for damages included, aside from the medical and hospital bills, consequential damages for the expenses of two
lawyers who had to go abroad in private respondent's stead to finalize certain business transactions and for the publication of
notices announcing the postponement of private respondent's daughter's wedding which had to be cancelled because of his
accident [Record on Appeal, p. 5].
Judgment was rendered in private respondent's favor prompting petitioner to appeal to the Court of Appeals. The latter affirmed
the trial court's decision. Petitioner then filed with the same court a Motion for, Reconsideration but this was denied.

Petitioner now comes before this Court raising the following assignment of errors:

1. The Court of Appeals gravely erred in not holding that the present the CAA is really a suit against the
Republic of the Philippines which cannot be sued without its consent, which was not given in this case.

2. The Court of Appeals gravely erred in finding that the injuries of respondent Ernest E. Simke were due to
petitioner's negligence — although there was no substantial evidence to support such finding; and that the
inference that the hump or elevation the surface of the floor area of the terrace of the fold) MIA building is
dangerous just because said respondent tripped over it is manifestly mistaken — circumstances that justify a
review by this Honorable Court of the said finding of fact of respondent appellate court (Garcia v. Court of
Appeals, 33 SCRA 622; Ramos v. CA, 63 SCRA 331.)

3. The Court of Appeals gravely erred in ordering petitioner to pay actual, consequential, moral and exemplary
damages, as well as attorney's fees to respondent Simke — although there was no substantial and competent
proof to support said awards I Rollo, pp. 93-94 1.

Invoking the rule that the State cannot be sued without its consent, petitioner contends that being an agency of the government,
it cannot be made a party-defendant in this case.

This Court has already held otherwise in the case of National Airports Corporation v. Teodoro, Sr. [91 Phil. 203 (1952)]. Petitioner
contends that the said ruling does not apply in this case because: First, in the Teodoro case, the CAA was sued only in a
substituted capacity, the National Airports Corporation being the original party. Second, in the Teodoro case, the cause of action
was contractual in nature while here, the cause of action is based on a quasi-delict. Third, there is no specific provision in
Republic Act No. 776, the law governing the CAA, which would justify the conclusion that petitioner was organized for business
and not for governmental purposes. [Rollo, pp. 94-97].

Such arguments are untenable.

First, the Teodoro case, far from stressing the point that the CAA was only substituted for the National Airports Corporation, in
fact treated the CAA as the real party in interest when it stated that:

xxx xxx xxx

... To all legal intents and practical purposes, the National Airports Corporation is dead and the Civil
Aeronautics Administration is its heir or legal representative, acting by the law of its creation upon its own
rights and in its own name. The better practice there should have been to make the Civil Aeronautics
Administration the third party defendant instead of the National Airports Corporation. [National Airports Corp.
v. Teodoro, supra, p. 208.]

xxx xxx xxx

Second, the Teodoro case did not make any qualification or limitation as to whether or not the CAA's power to sue and be sued
applies only to contractual obligations. The Court in the Teodoro case ruled that Sections 3 and 4 of Executive Order 365 confer
upon the CAA, without any qualification, the power to sue and be sued, albeit only by implication. Accordingly, this Court's
pronouncement that where such power to sue and be sued has been granted without any qualification, it can include a claim
based on tort or quasi-delict [Rayo v. Court of First Instance of Bulacan, G.R. Nos. 55273-83, December 19,1981, 1 1 0 SCRA 4561
finds relevance and applicability to the present case.

Third, it has already been settled in the Teodoro case that the CAA as an agency is not immune from suit, it being engaged in
functions pertaining to a private entity.

xxx xxx xxx

The Civil Aeronautics Administration comes under the category of a private entity. Although not a body
corporate it was created, like the National Airports Corporation, not to maintain a necessary function of
government, but to run what is essentially a business, even if revenues be not its prime objective but rather the
promotion of travel and the convenience of the travelling public. It is engaged in an enterprise which, far from
being the exclusive prerogative of state, may, more than the construction of public roads, be undertaken by
private concerns. [National Airports Corp. v. Teodoro, supra, p. 207.]
 xxx xxx xxx

True, the law prevailing in 1952 when the Teodoro case was promulgated was Exec. Order 365 (Reorganizing the Civil
Aeronautics Administration and Abolishing the National Airports Corporation). Republic Act No. 776 (Civil Aeronautics Act of the
Philippines), subsequently enacted on June 20, 1952, did not alter the character of the CAA's objectives under Exec, Order 365.
The pertinent provisions cited in the Teodoro case, particularly Secs. 3 and 4 of Exec. Order 365, which led the Court to consider
the CAA in the category of a private entity were retained substantially in Republic Act 776, Sec. 32 (24) and (25).<äre||
anº•1àw> Said Act provides:

Sec. 32. Powers and Duties of the Administrator. Subject to the general — control and supervision of the
Department Head, the Administrator shall have among others, the following powers and duties:

xxx xxx xxx

(24) To administer, operate, manage, control, maintain and develop the Manila International Airport and all
government-owned aerodromes except those controlled or operated by the Armed Forces of the Philippines
including such powers and duties as: (a) to plan, design, construct, equip, expand, improve, repair or alter
aerodromes or such structures, improvement or air navigation facilities; (b) to enter into, make and execute
contracts of any kind with any person, firm, or public or private corporation or entity; ... .

(25) To determine, fix, impose, collect and receive landing fees, parking space fees, royalties on sales or
deliveries, direct or indirect, to any aircraft for its use of aviation gasoline, oil and lubricants, spare parts,
accessories and supplies, tools, other royalties, fees or rentals for the use of any of the property under its
management and control.

xxx xxx xxx

From the foregoing, it can be seen that the CAA is tasked with private or non-governmental functions which operate to remove it
from the purview of the rule on State immunity from suit. For the correct rule as set forth in the Tedoro case states:

xxx xxx xxx

Not all government entities, whether corporate or non-corporate, are immune from suits. Immunity functions
suits is determined by the character of the objects for which the entity was organized. The rule is thus stated in
Corpus Juris:

Suits against State agencies with relation to matters in which they have assumed to act in
private or non-governmental capacity, and various suits against certain corporations created
by the state for public purposes, but to engage in matters partaking more of the nature of
ordinary business rather than functions of a governmental or political character, are not
regarded as suits against the state. The latter is true, although the state may own stock or
property of such a corporation for by engaging in business operations through a corporation,
the state divests itself so far of its sovereign character, and by implication consents to suits
against the corporation. (59 C.J., 313) [National Airport Corporation v. Teodoro, supra, pp.
206-207; Emphasis supplied.]

This doctrine has been reaffirmed in the recent case of Malong v. Philippine National Railways [G.R. No. L-49930, August 7, 1985,
138 SCRA 631, where it was held that the Philippine National Railways, although owned and operated by the government, was
not immune from suit as it does not exercise sovereign but purely proprietary and business functions. Accordingly, as the CAA
was created to undertake the management of airport operations which primarily involve proprietary functions, it cannot avail of
the immunity from suit accorded to government agencies performing strictly governmental functions.

II

Petitioner tries to escape liability on the ground that there was no basis for a finding of negligence. There can be no negligence on
its part, it alleged, because the elevation in question "had a legitimate purpose for being on the terrace and was never intended to
trip down people and injure them. It was there for no other purpose but to drain water on the floor area of the terrace" [Rollo, P.
99].

To determine whether or not the construction of the elevation was done in a negligent manner, the trial court conducted an
ocular inspection of the premises.

xxx xxx xxx

 ... This Court after its ocular inspection found the elevation shown in Exhs. A or 6-A where plaintiff slipped to be
a step, a dangerous sliding step, and the proximate cause of plaintiffs injury...

xxx xxx xxx

This Court during its ocular inspection also observed the dangerous and defective condition of the open terrace
which has remained unrepaired through the years. It has observed the lack of maintenance and upkeep of the
MIA terrace, typical of many government buildings and offices. Aside from the litter allowed to accumulate in
the terrace, pot holes cause by missing tiles remained unrepaired and unattented. The several elevations
shown in the exhibits presented were verified by this Court during the ocular inspection it undertook. Among
these elevations is the one (Exh. A) where plaintiff slipped. This Court also observed the other hazard, the
slanting or sliding step (Exh. B) as one passes the entrance door leading to the terrace [Record on Appeal, U.S.,
pp. 56 and 59; Emphasis supplied.]

The Court of Appeals further noted that:

The inclination itself is an architectural anomaly for as stated by the said witness, it is neither a ramp because a
ramp is an inclined surface in such a way that it will prevent people or pedestrians from sliding. But if, it is a
step then it will not serve its purpose, for pedestrian purposes. (tsn, p. 35, Id.) [rollo, p. 29.]

These factual findings are binding and conclusive upon this Court. Hence, the CAA cannot disclaim its liability for the negligent
construction of the elevation since under Republic Act No. 776, it was charged with the duty of planning, designing, constructing,
equipping, expanding, improving, repairing or altering aerodromes or such structures, improvements or air navigation facilities
[Section 32, supra, R.A. 776]. In the discharge of this obligation, the CAA is duty-bound to exercise due diligence in overseeing the
construction and maintenance of the viewing deck or terrace of the airport.

It must be borne in mind that pursuant to Article 1173 of the Civil Code, "(t)he fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the
person, of the time and of the place." Here, the obligation of the CAA in maintaining the viewing deck, a facility open to the public,
requires that CAA insure the safety of the viewers using it. As these people come to the viewing deck to watch the planes and
passengers, their tendency would be to look to where the planes and the incoming passengers are and not to look down on the
floor or pavement of the viewing deck. The CAA should have thus made sure that no dangerous obstructions or elevations exist
on the floor of the deck to prevent any undue harm to the public.

The legal foundation of CAA's liability for quasi-delict can be found in Article 2176 of the Civil Code which provides that
"(w)hoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done...
As the CAA knew of the existence of the dangerous elevation which it claims though, was made precisely in accordance with the
plans and specifications of the building for proper drainage of the open terrace [See Record on Appeal, pp. 13 and 57; Rollo, p.
391, its failure to have it repaired or altered in order to eliminate the existing hazard constitutes such negligence as to warrant a
finding of liability based on quasi-delict upon CAA.

The Court finds the contention that private respondent was, at the very least, guilty of contributory negligence, thus reducing the
damages that plaintiff may recover, unmeritorious. Contributory negligence under Article 2179 of the Civil Code contemplates a
negligent act or omission on the part of the plaintiff, which although not the proximate cause of his injury, contributed to his own
damage, the proximate cause of the plaintiffs own injury being the defendant's lack of due care. In the instant case, no
contributory negligence can be imputed to the private respondent, considering the following test formulated in the early case
of Picart v. Smith, 37 Phil. 809 (1918):

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent
man would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts
the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law.
The existence of the negligence in a given case is not determined by reference to the personal judgment of the
actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course be
always determined in the light of human experience and in view of the facts involved in the particular case.
Abstract speculations cannot be here of much value but this much can be profitably said: Reasonable men-
overn their conduct by the circumstances which are before them or known to them. They are not, and are not
supposed to be omniscient of the future. Hence they can be expected to take care only when there is something
before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm
as a result of the course actually pursued' If so, it was the duty of the actor to take precautions to guard against
that harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist.... [Picart v. Smith, supra, p. 813; Emphasis supplied.]
The private respondent, who was the plaintiff in the case before the lower court, could not have reasonably foreseen the harm
that would befall him, considering the attendant factual circumstances. Even if the private respondent had been looking where he
was going, the step in question could not easily be noticed because of its construction. As the trial court found:

In connection with the incident testified to, a sketch, Exhibit O, shows a section of the floorings oil which
plaintiff had tripped, This sketch reveals two pavements adjoining each other, one being elevated by four and
one-fourth inches than the other. From the architectural standpoint the higher, pavement is a step. However,
unlike a step commonly seen around, the edge of the elevated pavement slanted outward as one walks to one
interior of the terrace. The length of the inclination between the edges of the two pavements is three inches.
Obviously, plaintiff had stepped on the inclination because had his foot landed on the lower pavement he would
not have lost his balance. The same sketch shows that both pavements including the inclined portion are tiled
in red cement, and as shown by the photograph Exhibit A, the lines of the tilings are continuous. It would
therefore be difficult for a pedestrian to see the inclination especially where there are plenty of persons in the
terrace as was the situation when plaintiff fell down. There was no warning sign to direct one's attention to the
change in the elevation of the floorings. [Rollo, pp. 2829.]

III

Finally, petitioner appeals to this Court the award of damages to private respondent. The liability of CAA to answer for damages,
whether actual, moral or exemplary, cannot be seriously doubted in view of one conferment of the power to sue and be sued
upon it, which, as held in the case of Rayo v. Court of First Instance, supra, includes liability on a claim for quasi-dilict. In the
aforestated case, the liability of the National Power Corporation to answer for damages resulting from its act of sudden,
precipitate and simultaneous opening of the Angat Dam, which caused the death of several residents of the area and the
destruction of properties, was upheld since the o,rant of the power to sue and be sued upon it necessarily implies that it can be
held answerable for its tortious acts or any wrongful act for that matter.

With respect to actual or compensatory damages, the law mandates that the same be proven.

Art. 2199. Except as provided by law or by stipulation, one are entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual on
compensatory damages [New Civil Code].

Private respondent claims P15,589.55 representing medical and hospitalization bills. This Court finds the same to have been duly
proven through the testimony of Dr. Ambrosio Tangco, the physician who attended to private respondent (Rollo, p. 26) and who
Identified Exh. "H" which was his bill for professional services [Rollo, p. 31].

Concerning the P20,200.00 alleged to have been spent for other expenses such as the transportation of the two lawyers who had
to represent private respondent abroad and the publication of the postponement notices of the wedding, the Court holds that the
same had also been duly proven. Private respondent had adequately shown the existence of such losses and the amount thereof
in the testimonies before the trial court [CA decision, p. 81. At any rate, the findings of the Court of Appeals with respect to this
are findings of facts [One Heart Sporting Club, Inc. v. Court of Appeals, G.R. Nos. 5379053972, Oct. 23, 1981, 108 SCRA 4161
which, as had been held time and again, are, as a general rule, conclusive before this Court [Sese v. Intermediate Appellate Court,
G.R. No. 66186, July 31, 1987,152 SCRA 585].

With respect to the P30,000.00 awarded as moral damages, the Court holds private respondent entitled thereto because of the
physical suffering and physical injuries caused by the negligence of the CAA [Arts. 2217 and 2219 (2), New Civil Code].

With respect to the award of exemplary damages, the Civil Code explicitly, states:

Art. 2229. Exemplary or corrective damages, are imposed, by way of example or correction for the public good,
in addition to the moral, liquidated or compensatory

Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.

Gross negligence which, according to the Court, is equivalent to the term "notorious negligence" and consists in the failure to
exercise even slight care [Caunan v. Compania General de Tabacos, 56 Phil. 542 (1932)] can be attributed to the CAA for its
failure to remedy the dangerous condition of the questioned elevation or to even post a warning sign directing the attention of
the viewers to the change in the elevation of the floorings notwithstanding its knowledge of the hazard posed by such elevation
[Rollo, pp. 28-29; Record oil Appeal, p. 57]. The wanton disregard by the CAA of the safety of the people using the viewing deck,
who are charged an admission fee, including the petitioner who paid the entrance fees to get inside the vantage place [CA
decision, p. 2; Rollo, p. 25] and are, therefore, entitled to expect a facility that is properly and safely maintained — justifies the
award of exemplary damages against the CAA, as a deterrent and by way of example or correction for the public good. The award
of P40,000.00 by the trial court as exemplary damages appropriately underscores the point that as an entity changed with
providing service to the public, the CAA. like all other entities serving the public. has the obligation to provide the public with
reasonably safe service.
Finally, the award of attorney's fees is also upheld considering that under Art. 2208 (1) of the Civil Code, the same may be
awarded whenever exemplary damages are awarded, as in this case, and,at any rate, under Art. 2208 (11), the Court has the
discretion to grant the same when it is just and equitable.

However, since the Manila International Airport Authority (MIAA) has taken over the management and operations of the Manila
International Airport [renamed Ninoy Aquino International Airport under Republic Act No. 6639] pursuant to Executive Order
No. 778 as amended by executive Orders Nos. 903 (1983), 909 (1983) and 298 (1987) and under Section 24 of the said Exec.
Order 778, the MIAA has assumed all the debts, liabilities and obligations of the now defunct Civil Aeronautics Administration
(CAA), the liabilities of the CAA have now been transferred to the MIAA.

WHEREFORE, finding no reversible error, the Petition for review on certiorari is DENIED and the decision of the Court of Appeals
in CA-G.R. No. 51172-R is AFFIRMED.

G.R. No. 130068 October 1, 1998

FAR EASTERN SHIPPING COMPANY, petitioner,

vs.
COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY, respondents.

G.R. No. 130150 October, 1998

MANILA PILOTS ASSOCIATION, petitioner,

vs.
PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING COMPANY, respondents.

REGALADO, J.:

These consolidated petitions for review on certiorari seek in unison to annul and set aside the decision 1 of respondent Court of
Appeals of November 15, 1996 and its resolution 2 dated July 31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports
Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and Manila Pilots' Association, Defendants-
Appellants," which affirmed with modification the judgment of the trial court holding the defendants-appellants therein
solidarily liable for damages in favor of herein private respondent.

There is no dispute about the facts as found by the appellate court,

thus —

. . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned and operated by the Far Eastern Shipping
Company (FESC for brevity's sake), arrived at the Port of Manila from Vancouver, British Columbia at about 7:00 o'clock in the
morning. The vessel was assigned Berth 4 of the Manila International Port, as its berthing space. Captain Roberto Abellana was
tasked by the Philippine Port Authority to supervise the berthing of the vessel. Appellant Senen Gavino was assigned by the
Appellant Manila Pilots' Association (MPA for brevity's sake) to conduct docking maneuvers for the safe berthing of the vessel to
Berth No. 4.

Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge, with the master of the vessel, Victor
Kavankov, beside him. After a briefing of Gavino by Kavankov of the particulars of the vessel and its cargo, the vessel lifted
anchor from the quarantine anchorage and proceeded to the Manila International Port. The sea was calm and the wind was ideal
for docking maneuvers.

When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile from the pier, Gavino ordered
the engine stopped. When the vessel was already about 2,000 feet from the pier, Gavino ordered the anchor dropped. Kavankov
relayed the orders to the crew of the vessel on the bow. The left anchor, with two (2) shackles, were dropped. However, the
anchor did not take hold as expected. The speed of the vessel did not slacken. A commotion ensued between the crew members.
A brief conference ensued between Kavankov and the crew members. When Gavino inquired what was all the commotion about,
Kavankov assured Gavino that there was nothing to it.

After Gavino noticed that the anchor did not take hold, he ordered the engines half-astern. Abellana, who was then on the pier
apron, noticed that the vessel was approaching the pier fast. Kavankov likewise noticed that the anchor did not take hold. Gavino
thereafter gave the "full-astern" code. Before the right anchor and additional shackles could be dropped, the bow of the vessel
rammed into the apron of the pier causing considerable damage to the pier. The vessel sustained damage too, (Exhibit "7-Far
Eastern Shipping). Kavankov filed his sea protest (Exhibit "1-Vessel"). Gavino submitted his report to the Chief Pilot (Exhibit "1-
Pilot") who referred the report to the Philippine Ports Authority (Exhibit 2-Pilot"). Abellana likewise submitted his report of the
incident (Exhibit "B").

Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the rehabilitation of the damaged
pier, the same cost the Philippine Ports Authority the amount of P1,126,132.25 (Exhibits "D" and "E").3

On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor General, filed before the Regional
Trial Court of Manila, Branch 39, a complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the
Manila Pilots' Association, docketed as Civil Case No. 83-14958, 4 praying that the defendants therein be held jointly and severally
liable to pay the plaintiff actual and exemplary damages plus costs of suit. In a decision dated August 1, 1985, the trial court
ordered the defendants therein jointly and severally to pay the PPA the amount of P1,053,300.00 representing actual damages
and the costs of suit.5

The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of a commercial vessel, under
compulsory pilotage, solely liable for the damage caused by the vessel to the pier, at the port of destination, for his negligence?
and (2) Would the owner of the vessel be liable likewise if the damage is caused by the concurrent negligence of the master of the
vessel and the pilot under a compulsory pilotage?

As stated at the outset, respondent appellate court affirmed the findings of the court a quo except that if found no employer-
employee relationship existing between herein private respondents Manila Pilots' Association (MPA, for short) and Capt.
Gavino.6 This being so, it ruled instead that the liability of MPA is anchored, not on Article 2180 of the Civil Code, but on the
provisions of Customs Administrative Order No. 15-65, 7 and accordingly modified said decision of the trial court by holding
MPA, along with its co-defendants therein, still solidarily liable to PPA but entitled MPA to reimbursement from Capt. Gavino for
such amount of the adjudged pecuniary liability in excess of the amount equivalent to seventy-five percent (75%) of its
prescribed reserve
fund. 8

Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the Court of Appeals and both of them
elevated their respective plaints to us via separate petitions for review on certiorari.

In G. R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed that the Court of Appeals seriously
erred:

1. in not holding Senen C. Gavino and the Manila Pilots' Association as the parties solely responsible for the resulting damages
sustained by the pier deliberately ignoring the established jurisprudence on the matter;

2. in holding that the master had not exercised the required diligence demanded from him by the circumstances at the time the
incident happened;

3. in affirming the amount of damages sustained by the respondent Philippine Ports Authority despite a strong and convincing
evidence that the amount is clearly exorbitant and unreasonable;

4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer; and

5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots' Association in the event that it be held
liable. 9

Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the incident, it was the compulsory
pilot, Capt. Gavino, who was in command and had complete control in the navigation and docking of the vessel. It is the pilot who
supersedes the master for the time being in the command and navigation of a ship and his orders must be obeyed in all respects
connected with her navigation. Consequently, he was solely responsible for the damage caused upon the pier apron, and not the
owners of the vessel. It claims that the master of the boat did not commit any act of negligence when he failed to countermand or
overrule the orders of the pilot because he did not see any justifiable reason to do so. In other words, the master cannot be
faulted for relying absolutely on the competence of the compulsory pilot. If the master does not observe that a compulsory pilot
is incompetent or physically incapacitated, the master is justified in relying on the pilot. 10
Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent court on the solidary liability of
FESC, MPA and Capt. Gavino, stresses the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor
Kabankov, * shipmaster of MV Pavlodar, as the basis of their solidary liability for damages sustained by PPA. It posits that the
vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the bridge of the vessel, as the former
took over the helm of MV Pavlodar when it rammed and damaged the apron of the pier of Berth No. 4 of the Manila International
Port. Their concurrent negligence was the immediate and proximate cause of the collision between the vessel and the pier —
Capt. Gavino, for his negligence in the conduct of docking maneuvers for the safe berthing of the vessel; and Capt. Kabankov, for
failing to countermand the orders of the harbor pilot and to take over and steer the vessel himself in the face of imminent danger,
as well as for merely relying on Capt. Gavino during the berthing procedure. 11

On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later transferred to the Third Division.
MPA, now as petitioner in this case, avers that respondent court's errors consisted in disregarding and misinterpreting Customs
Administrative Order No. 15-65 which limits the liability of MPA. Said pilots' association asseverates that it should not be held
solidarily liable with Capt. Gavino who, as held by respondent court is only a member, not an employee, thereof. There being no
employer-employee relationship, neither can MPA be held liable for any vicarious liability for the respective exercise of
profession by its members nor be considered a joint tortfeasor as to be held jointly and severally liable. 12 It further argues that
there was erroneous reliance on Customs Administrative Order No. 15-65 and the constitution and by-laws of MPA, instead of
the provisions of the Civil Code on damages which, being a substantive law, is higher in category than the aforesaid constitution
and by-laws of a professional organization or an administrative order which bears no provision classifying the nature of the
liability of MPA for the negligence its member pilots. 13

As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage services since July 28, 1994 and has
ceased to be a member of petitioner pilots' association. He is not joined as a petitioner in this case since his whereabouts are
unknown. 14

FESC's comment thereto relied on the competence of the Court of Appeals in construing provisions of law or administrative
orders as bases for ascertaining the liability of MPA, and expressed full accord with the appellate court's holding of solidary
liability among itself, MPA and Capt. Gavino. It further avers that the disputed provisions of Customs Administrative Order No.
15-65 clearly established MPA's solidary liability. 15

On the other hand, public respondent PPA, likewise through representations by the Solicitor General, assumes the same
supportive stance it took in G.R. No. 130068 in declaring its total accord with the ruling of the Court of Appeals that MPA is
solidarily liable with Capt. Gavino and FESC for damages, and in its application to the fullest extent of the provisions of Customs
Administrative Order No. 15-65 in relation to MPA's constitution and by-laws which spell out the conditions of and govern their
respective liabilities. These provisions are clear and unambiguous as regards MPA's liability without need for interpretation or
construction. Although Customs Administrative Order No. 15-65 is a mere regulation issued by an administrative agency
pursuant to delegated legislative authority to fix details to implement the law, it is legally binding and has the same statutory
force as any valid statute. 16

Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated with G.R. No. 130068. 18

Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that the conduct of the respective
counsel for FESC and PPA leaves much to be desired, to the displeasure and disappointment of this Court.

Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 28-91 which provided for what has
come to be known as the certification against forum shopping as an additional requisite for petitions filed with the Supreme
Court and the Court of Appeals, aside from the other requirements contained in pertinent provisions of the Rules of Court
therefor, with the end in view of preventing the filing of multiple complaints involving the same issues in the Supreme Court,
Court of Appeals or different divisions thereof or any other tribunal or agency.

More particularly, the second paragraph of Section 2, Rule 42 provides:

x x x           x x x          x x x

The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced any
other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other
tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn
that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof
within five (5) days therefrom. (Emphasis ours.)

For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically requires that such petition shall contain
a sworn certification against forum shopping as provided in the last paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty. Herbert A. Tria, is the counsel of
record for FESC in both G.R. No. 130068 and G.R. No. 130150.

G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing by FESC through counsel on August
22, 1997 of a verified motion for extension of time to file its petition for thirty (30) days from August 28, 1997 or until September
27, 1997. 20 Said motion contained the following certification against forum shopping 21 signed by Atty. Herbert A. Tria as affiant:

CERTIFICATION

AGAINST FORUM SHOPPING

I/we hereby certify that I/we have not commenced any other action or proceeding involving the same issues in the Supreme
Court, the Court of Appeals, or any other tribunal or agency; that to the best of my own knowledge, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that if I/we should thereafter learn that a
similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or
agency, I/we undertake to report that fact within five (5) days therefrom to this Honorable Court.

This motion having been granted, FESC subsequently filed its petition on September 26, 1997, this time bearing a "verification
and certification against forum-shopping" executed by one Teodoro P. Lopez on September 24, 1997, 22 to wit:

VERIFICATION AND CERTIFICATION

AGAINST FORUM SHOPPING

in compliance with Section 4(e), Rule 45 in relation

to Section 2, Rule 42 of the Revised Rules of Civil Procedure

I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state:

1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent of petitioner in this case.

2. That I have caused the preparation of this Petition for Review on Certiorari.

3. That I have read the same and the allegations therein contained are true and correct based on the records of this case.

4. That I certify that petitioner has not commenced any other action or proceeding involving the same issues in the Supreme
Court or Court of Appeals, or any other tribunal or agency, that to the best of my own knowledge, no such action or proceeding is
pending in the Supreme Court, the Court of Appeals or any other tribunal or agency, that if I should thereafter learn that a similar
action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I
undertake to report the fact within five (5) days therefrom to this Honorable Court. (Italics supplied for emphasis.)

Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending with the Third Division was duly
filed on August 29, 1997 with a copy thereof furnished on the same date by registered mail to counsel for FESC. 23 Counsel of
record for MPA. Atty. Jesus P. Amparo, in his verification accompanying said petition dutifully revealed to the Court that —

x x x           x x x          x x x

3. Petitioner has not commenced any other action or proceeding involving the same issues in this Honorable Court, the Court of
Appeals or different Divisions thereof, or any other tribunal or agency, but to the best of his knowledge, there is an action or
proceeding pending in this Honorable Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports Authority and Court of
Appeals with a Motion for Extension of time to file Petition For Review by Certiorari filed sometime on August 18, 1987. If
undersigned counsel will come to know of any other pending action or claim filed or pending he undertakes to report such fact
within five (5) days to this Honorable Court.24 (Emphasis supplied.)

Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29, 1997 and taking judicial notice of the
average period of time it takes local mail to reach its destination, by reasonable estimation it would be fair to conclude that when
FESC filed its petition in G.R. No. 130068 on September 26, 1997, it would already have received a copy of the former and would
then have knowledge of the pendency of the other petition initially filed with the First Division. It was therefore incumbent upon
FESC to inform the Court of that fact through its certification against forum shopping. For failure to make such disclosure, it
would appear that the aforequoted certification accompanying the petition in G.R. No. 130068 is defective and could have been a
ground for dismissal thereof.
Even assuming that FESC had not yet received its copy of MPA's petition at the time it filed its own petition and executed said
certification, its signatory did state "that if I should thereafter learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals or any other tribunal or agency, I undertake to report the fact within five
(5) days therefrom to this Honorable Court." 25 Scouring the records page by page in this case, we find that no manifestation
concordant with such undertaking was then or at any other time thereafter ever filed by FESC nor was there any attempt to bring
such matter to the attention of the Court. Moreover, it cannot feign non-knowledge of the existence of such other petition
because FESC itself filed the motion for consolidation in G.R. No. 130150 of these two cases on April 24, 1998.

It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays an unprofessional tendency of
taking the Rules for granted, in this instance exemplified by its pro forma compliance therewith but apparently without full
comprehension of and with less than faithful commitment to its undertakings to this Court in the interest of just, speedy and
orderly administration of court proceedings.

As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court. 26 He is an officer of the court
exercising a privilege which is indispensable in the administration of justice. 27 Candidness, especially towards the courts, is
essential for the expeditious administration of justice. Courts are entitled to expect only complete honesty from lawyers
appearing and pleading before them. 28 Candor in all dealings is the very essence of honorable membership in the legal
profession. 29 More specifically, a lawyer is obliged to observe the rules of procedure and not to misuse them to defeat the ends of
justice. 30 It behooves a lawyer, therefore, to exert every effort and consider it his duty to assist in the speedy and efficient
administration of justice. 31 Being an officer of the court, a lawyer has a responsibility in the proper administration of justice. Like
the court itself, he is an instrument to advance its ends — the speedy, efficient, impartial, correct and inexpensive adjudication of
cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but should likewise
avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary
task of assisting in the speedy and efficient administration of justice. 32

Sad to say, the members of said law firm sorely failed to observe their duties as responsible members of the Bar. Their actuations
are indicative of their predisposition to take lightly the avowed duties of officers of the Court to promote respect for law and for
legal processes. 33 We cannot allow this state of things to pass judicial muster.

In view of the fact that at around the time these petitions were commenced, the 1997 Rules of Civil Procedure had just taken
effect, the Court treated infractions of the new Rules then with relative liberality in evaluating full compliance therewith.
Nevertheless, it would do well to remind all concerned that the penal provisions of Circular No. 28-91 which remain operative
provides, inter alia:

3. Penalties. —

x x x           x x x          x x x

(c) The submission of a false certification under Par. 2 of the Circular shall likewise constitute contempt of court, without
prejudice to the filing of criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings.

It must be stressed that the certification against forum shopping ordained under the Rules is to be executed by the petitioner, and
not by counsel. Obviously it is the petitioner, and not always the counsel whose professional services have been retained for a
particular case, who is in the best position to know whether he or it actually filed or caused the filing of a petition in that case.
Hence, a certification against forum shopping by counsel is a defective certification. It is clearly equivalent to non-compliance
with the requirement under Section 2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid cause for dismissal of the
petition.

Hence, the initial certification appended to the motion for extension of time to file petition in G.R. No. 130068 executed in behalf
of FESC by Atty. Tria is procedurally deficient. But considering that it was a superfluity at that stage of the proceeding, it being
unnecessary to file such a certification with a mere motion for extension, we shall disregard such error. Besides, the certification
subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect to a certain extent, despite the inaccuracies earlier
pointed out. In the same vein, we shall consider the verification signed in behalf of MPA by its counsel, Atty. Amparo, in G.R. No.
130150 as substantial compliance inasmuch as it served the purpose of the Rules of informing the Court of the pendency of
another action or proceeding involving the same issues.

It bears stressing that procedural rules are instruments in the speedy and efficient administration of justice. They should be used
to achieve such end and not to derail it. 34

Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor General at the time, the same legal
team of the Office of the Solicitor General (OSG, for short) composed of Assistant Solicitor General Roman G. Del Rosario and
Solicitor Luis F. Simon, with the addition of Assistant Solicitor General Pio C. Guerrero very much later in the proceedings,
represented PPA throughout the appellate proceedings in both G.R. No. 130068 and G.R. No. 130150 and was presumably fully
acquainted with the facts and issues of the case, it took the OSG an inordinately and almost unreasonably long period of time to
file its comment, thus unduly delaying the resolution of these cases. It took several changes of leadership in the OSG — from
Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez — before the comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning that no further extensions shall be
granted, and personal service on the Solicitor General himself of the resolution requiring the filing of such comment before the
OSG indulged the Court with the long required comment on July 10, 1998. 35 This, despite the fact that said office was required to
file its comment way back on November 12, 1997. 36 A closer scrutiny of the records likewise indicates that petitoner FESC was
not even furnished a copy of said comment as required by Section 5, Rule 42. Instead, a copy thereof was inadvertently furnished
to MPA which, from the point of view of G.R. No. 130068, was a non-party. 37 The OSG fared slightly better in G.R. No. 130150 in
that it took only six (6) extensions, or a total of 180 days, before the comment was finally filed. 38 And while it properly furnished
petitioner MPA with a copy of its comment, it would have been more desirable and expedient in this case to have furnished its
therein co-respondent FESC with a copy thereof, if only as a matter of professional courtesy. 39

This undeniably dilatory disinclination of the OSG to seasonably file required pleadings constitutes deplorable disservice to the
tax-paying public and can only be categorized as censurable inefficiency on the part of the government law office. This is most
certainly professionally unbecoming of the OSG.

Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion for consolidation in either G.R. No.
130068 or G.R. No. 130150, considering its familiarity with the background of the case and if only to make its job easier by
having to prepare and file only one comment. It could not have been unaware of the pendency of one or the other petition
because, being counsel for respondent in both cases, petitioner is required to furnish it with a copy of the petition under pain of
dismissal of the petition for failure otherwise. 40

Besides, in G.R. 130068, it prefaces its discussions thus —

Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in the case before the respondent Court of
Appeals, has taken a separate appeal from the said decision to this Honorable Court, which was docketed as G.R. No. 130150 and
entitled "Manila Pilots' Association, Petitioner, versus Philippine Ports Authority and Far Eastern Shipping Co., Respondents." 41

Similarly, in G.R. No. 130150, it states —

Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the said decision to this Honorable Court,
docketed as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs. Court of Appeals and Philippine Ports Authority." 42

We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of its cases and an almost reflexive
propensity to move for countless extensions, as if to test the patience of the Court, before favoring it with the timely submission
of required pleadings.

It must be emphasized that the Court can resolve cases only as fast as the respective parties in a case file the necessary pleadings.
The OSG, by needlessly extending the pendency of these cases through its numerous motions for extension, came very close to
exhausting this Court's forbearance and has regrettably fallen short of its duties as the People's Tribune.

The OSG is reminded that just like other members of the Bar, the canons under the Code of Professional Responsibility apply with
equal force on lawyers in government service in the discharge of their official tasks. 43 These ethical duties are rendered even
more exacting as to them because, as government counsel, they have the added duty to abide by the policy of the State to
promote a high standard of ethics in public service. 44 Furthermore, it is incumbent upon the OSG, as part of the government
bureaucracy, to perform and discharge its duties with the highest degree of professionalism, intelligence and skill 45 and to
extend prompt, courteous and adequate service to the public. 46

Now, on the merits of the case. After a judicious examination of the records of this case, the pleadings filed, and the evidence
presented by the parties in the two petitions, we find no cogent reason to reverse and set aside the questioned decision. While
not entirely a case of first impression, we shall discuss the issues seriatim and, correlatively by way of a judicial once-over,
inasmuch as the matters raised in both petitions beg for validation and updating of well-worn maritime jurisprudence. Thereby,
we shall write finis to the endless finger-pointing in this shipping mishap which has been stretched beyond the limits of judicial
tolerance.

The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage pursuant to Section 8, Article III of
Philippine Ports Authority Administrative Order No. 03-85, 47 which provides that:

Sec. 8. Compulsor Pilotage Service. — For entering a harbor and anchoring thereat, or passing through rivers or straits within a
pilotage district, as well as docking and undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged
in coastwise and foreign trade shall be under compulsory pilotage. . . .

In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot and the master have been
specified by the same regulation in this wise:

Sec. 11. Control of vessels and liability for damage. — On compulsory pilotage grounds, the Harbor Pilot providing the service to a
vessel shall be responsible for the damage caused to a vessel or to life and property at ports due to his negligence or fault. He can
only be absolved from liability if the accident is caused by force majeure or natural calamities provided he has exercised
prudence and extra diligence to prevent or minimize damage.

The Master shall retain overall command of the vessel even on pilotage grounds whereby he can countermand or overrule the
order or command of the Harbor Pilot on beard. In such event, any damage caused to a vessel or to life and property at ports by
reason of the fault or negligence of the Master shall be the responsibility and liability of the registered owner of the vessel
concerned without prejudice to recourse against said Master.

Such liability of the owner or Master of the vessel or its pilots shall be determined by competent authority in appropriate
proceedings in the light of the facts and circumstances of each particular case.

Sec. 32. Duties and responsibilities of the Pilot or Pilots' Association. — The duties and responsibilities of the Harbor Pilot shall
be as follows:

x x x           x x x          x x x

f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot thereof until he leaves
it anchored or berthed safely; Provided, however, that his responsibility shall cease at the moment the Master neglects or refuses
to carry out hisorder.

Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in Chapter I thereof for the
responsibilities of pilots:

Par. XXXIX. — A Pilot shall be held responsible for the direction of a vessel from the time he assumes control thereof until he
leaves it anchored free from shoal: Provided, That his responsibility shall cease at the moment the master neglects or refuses to
carry out his instructions.

x x x           x x x          x x x

Par. XLIV. — Pilots shall properly and safely secure or anchor vessels under their control when requested to do so by the master
of such vessels.

I. G.R. No. 130068

Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt. Gavino solely responsible for the
damages cause to the pier. It avers that since the vessel was under compulsory pilotage at the time with Capt. Gavino in
command and having exclusive control of the vessel during the docking maneuvers, then the latter should be responsible for
damages caused to the pier. 48 It likewise holds the appellate court in error for holding that the master of the ship, Capt.
Kabankov, did not exercise the required diligence demanded by the circumstances. 49

We start our discussion of the successive issues bearing in mind the evidentiary rule in American jurisprudence that there is a
presumption of fault against a moving vessel that strikes a stationary object such as a dock or navigational aid. In admiralty, this
presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter. The
moving vessel must show that it was without fault or that the collision was occasioned by the fault of the stationary object or was
the result of inevitable accident. It has been held that such vessel must exhaust every reasonable possibility which the
circumstances admit and show that in each, they did all that reasonable care required. 50 In the absence of sufficient proof in
rebuttal, the presumption of fault attaches to a moving vessel which collides with a fixed object and makes a prima facie case of
fault against the vessel. 51 Logic and experience support this presumption:

The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in the ordinary course of
things unless the vessel has been mismanaged in some way. It is nor sufficient for the respondent to produce witnesses who
testify that as soon as the danger became apparent everything possible was done to avoid an accident. The question remains,
How then did the collision occur? The answer must be either that, in spite of the testimony of the witnesses, what was done was
too little or too late or, if not, then the vessel was at fault for being in a position in which an unavoidable collision would occur. 52

The task, therefore, in these cases is to pinpoint who was negligent — the master of the ship, the harbor pilot or both.

A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports, or in certain waters. In a
broad sense, the term "pilot" includes both (1) those whose duty it is to guide vessels into or out of ports, or in particular waters
and (2) those entrusted with the navigation of vessels on the high seas. 53 However, the term "pilot" is more generally understood
as a person taken on board at a particular place for the purpose of conducting a ship through a river, road or channel, or from a
port. 54
Under English and American authorities, generally speaking, the pilot supersedes the master for the time being in the command
and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation. He becomes the
master pro hac vice and should give all directions as to speed, course, stopping and reversing anchoring, towing and the like. And
when a licensed pilot is employed in a place where pilotage is compulsory, it is his duty to insist on having effective control of the
vessel, or to decline to act as pilot. Under certain systems of foreign law, the pilot does not take entire charge of the vessel, but is
deemed merely the adviser of the master, who retains command and control of the navigation even in localities where pilotage is
compulsory. 55

It is quite common for states and localities to provide for compulsory pilotage, and safety laws have been enacted requiring
vessels approaching their ports, with certain exceptions, to take on board pilots duly licensed under local law. The purpose of
these laws is to create a body of seamen thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart, and
thus protect life and property from the dangers of navigation. 56

In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65 prescribes the rules for
compulsory pilotage in the covered pilotage districts, among which is the Manila Pilotage District,
viz. —

PARAGRAPH I. — Pilotage for entering a harbor and anchoring thereat, as well as docking and undocking in any pier or shifting
from one berth to another shall be compulsory, except Government vessels and vessels of foreign governments entitled to
courtesy, and other vessels engaged solely in river or harbor work, or in a daily ferry service between ports which shall be
exempt from compulsory pilotage provisions of these regulations: provided, however, that compulsory pilotage shall not apply in
pilotage districts whose optional pilotage is allowed under these regulations.

Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila International Port. Upon assuming
such office as compulsory pilot, Capt. Gavino is held to the universally accepted high standards of care and diligence required of a
pilot, whereby he assumes to have skill and knowledge in respect to navigation in the particular waters over which his license
extends superior to and more to be trusted than that of the master. 57 A pilot 57 should have a thorough knowledge of general
and local regulations and physical conditions affecting the vessel in his charge and the waters for which he is licensed, such as a
particular harbor or river.

He is not held to the highest possible degree of skill and care, but must have and exercise the ordinary skill and care demanded
by the circumstances, and usually shown by an expert in his profession. Under extraordinary circumstancesm, a pilot must
exercise extraordinary care. 58

In Atlee vs. The Northwesrern Union Packet Company. 59 Mr. Justice Miller spelled out in great detail the duties of a pilot:

. . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography through which he
steers his vessel. In the long course of a thousand miles in one of these rivers, he must be familiar with the appearance of the
shore on each side of the river as he goes along. Its banks, towns, its landings, its houses and trees, are all landmarks by which he
steers his vessel. The compass is of little use to him. He must know where the navigable channel is, in its relation to all these
external objects, especially in the night. He must also be familiar with all dangers that are permanently located in the course of
the river, as sand-bars, snags, sunken rocks or trees or abandoned vessels orbarges. All this he must know and remember and
avoid. To do this, he must be constantly informed of the changes in the current of the river, of the sand-bars newly made,of logs
or snags, or other objects newly presented, against which his vessel might be injured.

x x x           x x x          x x x

It may be said that this is exacting a very high order of ability in a pilot. But when we consider the value of the lives and property
committed to their control, for in this they are absolute masters, the high compensation they receive, the care which Congress
has taken to secure by rigid and frequent examinations and renewal of licenses, this very class of skill, we do not think we fix the
standard too high.

Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such strict standard of care and
diligence required of pilots in the performance of their duties. Witness this testimony of Capt. Gavino:

Court: You have testified before that the reason why the vessel bumped the pier was because the anchor was not released
immediately or as soon as you have given the order. Do you remember having srated that?

A Yes, your Honor.

Q And you gave this order to the captain of the vessel?

A Yes, your Honor.

Q By that testimony, you are leading the Court to understand that if that anchor was released immediately at the time you gave
the order, the incident would not have happened. Is that correct?

A Yes, sir, but actually it was only a presumption on my part because there was a commotion between the officers who are in
charge of the dropping of the anchor and the captain. I could not understand their language, it was in Russian, so I presumed the
anchor was not dropped on time.

Q So, you are not sure whether it was really dropped on time or not?

A I am not sure, your Honor.

x x x           x x x          x x x

Q You are not even sure what could have caused the incident. What factor could have caused the incident?

A Well, in this case now, because either the anchor was not dropped on time or the anchor did not hold, that was the cause of the
incident, your Honor. 60

It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for the possibly injurious
consequences his commands as pilot may have. Prudence required that he, as pilot, should have made sure that his directions
were promptly and strictly followed. As correctly noted by the trial court —

Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot he should have seen to it that the
order was carried out, and he could have done this in a number of ways, one of which was to inspect the bow of the vessel where
the anchor mechanism was installed. Of course, Captain Gavino makes reference to a commotion among the crew members
which supposedly caused the delay in the execution of the command. This account was reflected in the pilot's report prepared
four hours later, but Capt. Kavankov, while not admitting whether or not such a commotion occurred, maintained that the
command to drop anchor was followed "immediately and precisely." Hence, the Court cannot give much weight or consideration
to this portion of Gavino's testimony." 61

An act may be negligent if it is done without the competence that a reasonable person in the position of the actor would
recognize as necessary to prevent it from creating an unreasonable risk of harm to another. 62 Those who undertake any work
calling for special skills are required not only to exercise reasonable care in what they do but also possess a standard minimum
of special knowledge and ability. 63

Every man who offers his services to another, and is employed, assumes to exercise in the employment such skills he possesses,
with a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offers his services he is
understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same
employment, and if his pretensions are unfounded he commits a species of fraud on every man who employs him in reliance on
his public profession. 64

Furthermore, there is an obligation on all persons to take the care which, under ordinary circumstances of the case, a reasonable
and prudent man would take, and the omission of that care constitutes negligence. 65 Generally, the degree of care required is
graduated according to the danger a person or property attendant upon the activity which the actor pursues or the
instrumentality which he uses. The greater the danger the greater the degree of care required. What is ordinary under
extraordinary of conditions is dictated by those conditions; extraordinary risk demands extraordinary care. Similarly, the more
imminent the danger, the higher the degree of care. 66

We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino was indeed negligent in the
performance of his duties:

x x x           x x x          x x x

. . . As can be gleaned from the logbook, Gavino ordered the left anchor and two (2) shackles dropped at 8:30 o'clock in the
morning. He ordered the engines of the vessel stopped at 8:31 o'clock. By then,Gavino must have realized that the anchor did not
hit a hard object and was not clawed so as to reduce the momentum of the vessel. In point of fact, the vessel continued travelling
towards the pier at the same speed. Gavino failed to react, At 8:32 o'clock, the two (2) tugboats began to push the stern part of
the vessel from the port side bur the momentum of the vessel was not contained. Still, Gavino did not react. He did not even order
the other anchor and two (2) more shackles dropped to arrest the momentum of the vessel. Neither did he order full-astern. It
was only at 8:34 o'clock, or four (4) minutes, after the anchor was dropped that Gavino reacted. But his reaction was even
(haphazard) because instead of arresting fully the momentum of the vessel with the help of the tugboats, Gavino ordered merely
"half-astern". It took Gavino another minute to order a "full-astern". By then, it was too late. The vessel's momentum could no
longer be arrested and, barely a minute thereafter, the bow of the vessel hit the apron of the pier. Patently, Gavino miscalculated.
He failed to react and undertake adequate measures to arrest fully the momentum of the vessel after the anchor failed to claw to
the seabed. When he reacted, the same was even (haphazard). Gavino failed to reckon the bulk of the vessel, its size and its cargo.
He erroneously believed that only one (1) anchor would suffice and even when the anchor failed to claw into the seabed or
against a hard object in the seabed, Gavino failed to order the other anchor dropped immediately. His claim that the anchor was
dropped when the vessel was only 1,000 feet from the pier is but a belated attempt to extricate himself from the quagmire of his
own insouciance and negligence. In sum, then, Appellants' claim that the incident was caused by "force majeure" is barren of
factual basis.

x x x           x x x          x x x

The harbor pilots are especially trained for this job. In the Philippines, one may not be a harbor pilot unless he passed the
required examination and training conducted then by the Bureau of Custom, under Customs Administrative Order No. 15-65,
now under the Philippine Ports Authority under PPA Administrative Order 63-85, Paragraph XXXIX of the Customs
Administrative Order No. 15-65 provides that "the pilot shall be held responsible for the direction of the vessel from the time he
assumes control thereof, until he leaves it anchored free from shoal: Provided, that his responsibility shall cease at the.moment
the master neglects or refuse(s) to carry out his instructions." The overall direction regarding the procedure for docking and
undocking the vessel emanates from the harbor pilot. In the present recourse, Gavino failed to live up to his responsibilities and
exercise reasonable care or that degree of care required by the exigencies of the occasion. Failure on his part to exercise the
degree of care demanded by the circumstances is negligence (Reese versus Philadelphia & RR Co. 239 US 363, 60 L ed. 384, 57
Am Jur, 2d page 418). 67

This affirms the findings of the trial court regarding Capt. Gavino's negligence:

This discussion should not however, divert the court from the fact that negligence in manuevering the vessel must be attributed
to Capt. Senen Gavino. He was an experienced pilot and by this time should have long familiarized himself with the depth of the
port and the distance he could keep between the vessel and port in order to berth safely. 68

The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no less responsible for the allision. His unconcerned
lethargy as master of the ship in the face of troublous exigence constitutes negligence.

While it is indubitable that in exercising his functions a pilot is in sole command of the ship 69 and supersedes the master for the
time being in the command and navigation of a ship and that he becomes master pro hac vice of a vessel piloted by him, 70 there is
overwhelming authority to the effect that the master does not surrender his vessel to the pilot and the pilot is not the master. The
master is still in command of the vessel notwithstanding the presence of a pilot. There are occasions when the master may and
should interfere and even displace the pilot, as when the pilot is obviously incompetent or intoxicated and the circumstances
may require the master to displace a compulsory pilot because of incompetency or physical incapacity. If, however, the master
does nor observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot,
but not blindly. 71

The master is not wholly absolved from his duties while a pilot is on board his vessel, and may advise with or offer suggestions to
him. He is still in command of the vessel, except so far as her navigation is concerned, and must cause the ordinary work of the
vessel to be properly carried on and the usual precaution taken. Thus, in particular, he is bound to see that there is sufficient
watch on deck, and that the men are attentive to their duties, also that engines are stopped, towlines cast off, and the anchors
clear and ready to go at the pilot's order. 72

A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of his duties as master of the ship,
leaving the entire docking procedure up to the pilot, instead of maintaining watchful vigilance over this risky maneuver:

Q Will you please tell us whether you have the right to intervene in docking of your ship in the harbor?

A No sir, I have no right to intervene in time of docking, only in case there is imminent danger to the vessel and to the pier.

Q Did you ever intervene during the time that your ship was being docked by Capt. Gavino?

A No sir, I did not intervene at the time when the pilot was docking my ship.

Q Up to the time it was actually docked at the pier, is that correct?

A No sir, I did not intervene up to the very moment when the vessel was docked.

x x x           x x x          x x x

Atty. Del Rosario (to the witness)

Q Mr. Witness, what happened, if any, or was there anything unusual that happened during the docking?
A Yes sir, our ship touched ihe pier and the pier was damaged.

Court (to the witness)

Q When you said touched the pier, are you leading the court to understand that your ship bumped the pier?

A I believe that my vessel only touched the pier but the impact was very weak.

Q Do you know whether the pier was damaged as a result of that slight or weak impact?

A Yes sir, after the pier was damaged.

x x x           x x x          x x x

Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel to the port, did you observe anything
irregular in the maneuvering by Capt. Gavino at the time he was trying to cause the vessel to be docked at the pier?

A You mean the action of Capt. Gavino or his condition?

Court:

Q Not the actuation that conform to the safety maneuver of the ship to the harbor?

A No sir, it was a usual docking.

Q By that statement of yours, you are leading the court to understand that there was nothing irregular in the docking of the ship?

A Yes sir, during the initial period of the docking, there was nothing unusual that happened.

Q What about in the last portion of the docking of the ship, was there anything unusual or abnormal that happened?

A None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold the vessel.

Q You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was nor timely?

A I don't know the depth of this port but I think, if the anchor was dropped earlier and with more shackles, there could not have
been an incident.

Q So you could not precisely tell the court that the dropping of the anchor was timery because you are not well aware of the
seabed, is that correct?

A Yes sir, that is right.

x x x           x x x          x x x

Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground so much so that the vessel could not
travel?

A It is difficult for me to say definitely. I believe that the anchor did not hold the ship.

Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship from further moving?

A Yes sir, it is possible.

Q What is possible?

A I think, the 2 shackles were not enough to hold the vessel.

Q Did you know that the 2 shackles were dropped?

A Yes sir, I knew that.

Q If you knew that the shackles were not enough to hold the ship, did you not make any protest to the pilot?

A No sir, after the incident, that was my assumption.

Q Did you come to know later whether that presumption is correct?

A I still don't know the ground in the harbor or the depths.

Q So from the beginning, you were not competent whether the 2 shackles were also dropped to hold the ship?

A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an experienced pilot and he should be more
aware as to the depths of the harbor and the ground and I was confident in his actions.

x x x           x x x          x x x

Solicitor Abad (to the witness)

Q Now, you were standing with the pilot on the bridge of the vessel before the inicident happened, were you not?

A Yes sir, all the time, I was standing with the pilot.

Q And so whatever the pilot saw, you could also see from that point of view?

A That is right.

Q Whatever the piler can read from the panel of the bridge, you also could read, is that correct?

A What is the meaning of panel?

Q All indications necessary for men on the bridge to be informed of the movements of the ship?

A That is right.

Q And whatever sound the captain . . . Capt. Gavino would hear from the bridge, you could also hear?

A That is right.

Q Now, you said that when the command to lower the anchor was given, it was obeyed, is that right?

A This command was executed by the third mate and boatswain.

Court (to the witness)

Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with the duties of the pilot and that, in your opinion,
you can only intervene if the ship is placed in imminent danger, is that correct?

A That is right, I did say that.

Q In your observation before the incident actually happened, did you observe whether or not the ship, before the actual incident,
the ship was placed in imminent danger?

A No sir, I did not observe.

Q By that answer, are you leading the court to understand that because you did not intervene and because you believed that it
was your duty to intervene when the vessel is placed in imminent danger to which you did not observe any imminent danger
thereof, you have not intervened in any manner to the command of the pilot?

A That is right, sir.

x x x           x x x          x x x
Q Assuminp that you disagreed with the pilot regarding the step being taken by the pilot in maneuvering the vessel, whose
command will prevail, in case of imminent danger to the vessel?

A I did nor consider the situation as having an imminent danger. I believed that the vessel will dock alongside the pier.

Q You want us to understand that you did not see an imminent danger to your ship, is that what you mean?

A Yes sir, up to the very last moment, I believed that there was no imminent danger.

Q Because of that, did you ever intervene in the command of the pilot?

A Yes sir, I did not intervene because I believed that the command of the pilot to be correct.

Solicitor Abad (to the witness)

Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is it not?

A Yes sir, that is right.

Q Since it affects not only the safety of the port or pier, but also the safety of the vessel and the cargo, is it not?

A That is right.

Q So that, I assume that you were watching Capt. Gavino very closely at the time he was making his commands?

A I was close to him, I was hearing his command and being executed.

Q And that you were also alert for any possible mistakes he might commit in the maneuvering of the vessel?

A Yes sir, that is right.

Q But at no time during the maneuver did you issue order contrary to the orders Capt. Gavino made?

A No sir.

Q So that you were in full accord with all of Capt. Gavino's orders?

A Yes sir.

Q Because, otherwise, you would have issued order that would supersede his own order?

A In that case, I should t,ke him away from his command or remove the command from him.

Court (to the witness)

Q You were in full accord with the steps being taken by Capt. Gavino because you relied on his knowledge, on his familiarity of
the seabed and shoals and other surroundings or conditions under the sea, is that correct?

A Yes sir, that is right.

x x x           x x x          x x x

Solicitor Abad (to the witness)

Q And so after the anchors were ordered dropped and they did not take hold of the seabed, you were alerted that there was
danger already on hand?

A No sir, there was no imminent danger to the vessel.

Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom and it did not, there was no danger to
the ship?
A Yes sir, because the anchor dragged on the ground later.

Q And after a few moments when the anchor should have taken hold the seabed bur not done (sic), as you expected, you already
were alerted that there was danger to the ship, is that correct?

A Yes sir, I was alerted but there was no danger.

Q And you were alerted that somebody was wrong?

A Yes sir, I was alerted.

Q And this alert vou assumed was the ordinary alertness that you have for normal docking?

A Yes sir, I mean that it was usual condition of any man in time of docking to be alert.

Q And that is the same alertness when the anchor did not hold onto the ground, is that correct?

A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground.

Q Since, as you said that you agreed all the while with the orders of Capt. Gavino, you also therefore agreed with him in his failure
to take necessary precaution against the eventuality that the anchor will not hold as expected?

Atty. Del Rosario:

May I ask that the question . . .

Solicitor Abad:

Never mind, I will reform the question.

x x x           x x x          x x x

Solicitor Abad (to the witness)

Q Is it not a fact that the vessel bumped the pier?

A That is right, it bumped the pier.

Q For the main reason that the anchor of the vessel did not hold the ground as expected?

A Yes sir, that is my opinion. 73

Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the situation:

Q Now, after the anchor was dropped, was there any point in time that you felt that the vessel was in imminent danger.

A No, at that time, the vessel was not in imminent, danger, sir. 74

This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's anxious assessment of the
situation:

Q When a pilot is on board a vessel, it is the piler's command which should be followed at that moment until the vessel is, or goes
to port or reaches port?

A Yes, your Honor, but it does not take away from the Captain his prerogative to countermand the pilot.

Q In what way?

A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always has the prerogative to countermand the
pilot's order.
Q But insofar as competence, efficiency and functional knowledee of the seabed which are vital or decisive in the safety (sic)
bringing of a vessel to the port, he is not competent?

A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety of the vessel rest(s) upon the Captain,
the Master of the vessel.

Q In this case, there was not a disagreement between you and the Captain of the vessel in the bringing of the vessel to port?

A No, your Honor.

Court:

May proceed.

Atty. Catris:

In fact, the Master of the vessel testified here that he was all along in conformity with the orders you, gave to him, and, as matter
of fact, as he said, he obeyed all your orders. Can you tell, if in the course of giving such normal orders for the saf(e) docking of
the MV Pavlodar, do you remember of any instance that the Master of the vessel did not obey your command for the safety
docking of the MV Pavlodar?

Atty. del Rosario:

Already answered, he already said yes sir.

Court:

Yes, he has just answered yes sir to the Court that there was no disagreement insofar as the bringing of the vessel safely to the
port.

Atty. Catris:

But in this instance of docking of the MV Pavlodar, do you remember of a time during the course of the docking that the MV
Pavlodar was in imminent danger of bumping the pier?

A When we were about more than one thousand meters from the pier, I think, the anchor was not holding, so I immediately
ordered to push the bow at a fourth quarter, at the back of the vessel in order to swing the bow away from the pier and at the
same time, I ordered for a full astern of the engine. 75

These conflicting reactions can only imply, at the very least, unmindful disregard or, worse, neglectful relinquishment of duty by
the shipmaster, tantamount to negligence.

The findings of the trial court on this aspect is noteworthy:

For, while the pilot Gavino may indeed have been charged with the task of docking the vessel in the berthing space, it is
undisputed that the master of the vessel had the corresponding duty to countermand any of the orders made by the pilot, and
even maneuver the vessel himself, in case of imminent danger to the vessel and the port.

In fact, in his testimony, Capt. Kavankov admitted that all throughour the man(eu)vering procedures he did not notice anything
was going wrong, and even observed that the order given to drop the anchor was done at the proper time. He even ventured the
opinion that the accident occurred because the anchor failed to take hold but that this did not alarm him because.there was still
time to drop a second anchor.

Under normal circumstances, the abovementioned facts would have caused the master of a vessel to take charge of the situation
and see to the man(eu)vering of the vessel himself. Instead, Capt. Kavankov chose to rely blindly upon his pilot, who by this time
was proven ill-equipped to cope with the situation.

x x x           x x x          x x x

It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov was no lesss responsible for as master of the
vessel he stood by the pilot during the man(eu)vering procedures and was privy to every move the latter made, as well as the
vessel's response to each of the commands. His choice to rely blindly upon the pilot's skills, to the point that despite being
appraised of a notice of alert he continued to relinquish control of the vessel to Gavino, shows indubitably that he was not
performing his duties with the diligence required of him and therefore may be charged with negligence along with defend;int
Gavino. 76

As correctly affirmed by the Court of Appeals —

We are in full accord with the findings and disquisitions of the Court a quo.

In the present recourse, Captain Viktor Kavankov had been a mariner for thirty-two years before the incident. When Gavino was
(in) the command of the vessel, Kavankov was beside Gavino, relaying the commands or orders of Gavino to the crewmembers-
officers of the vessel concerned. He was thus fully aware of the docking maneuvers and procedure Gavino undertook to dock the
vessel. Irrefragably, Kavankov was fully aware of the bulk and size of the vessel and its cargo as well as the weight of the vessel.
Kavankov categorically admitted that, when the anchor and two (2) shackles were dropped to the sea floor, the claws of the
anchor did not hitch on to any hard object in the seabed. The momentum of the vessel was not arrested. The use of the two (2)
tugboats was insufficient. The momentum of the vessel, although a little bit arrested, continued (sic) the vessel going
straightforward with its bow towards the port (Exhibit "A-1 ). There was thus a need for the vessel to move "full-astern" and to
drop the other anchor with another shackle or two (2), for the vessel to avoid hitting the pier. Kavankov refused to act even as
Gavino failed to act. Even as Gavino gave mere "half-astern" order, Kavankov supinely stood by. The vessel was already about
twenty (20) meters away from the pier when Gavino gave the "full-astern" order. Even then, Kavankov did nothing to prevent the
vessel from hitting the pier simply because he relied on the competence and plan of Gavino. While the "full-astern'' maneuver
momentarily arrested the momentum of the vessel, it was, by then, too late. All along, Kavankov stood supinely beside Gavino,
doing nothing but relay the commands of Gavino. Inscrutably, then, Kavankov was negligent.

x x x           x x x          x x x

The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the vessel. It has been held that the
incompetence of the navigator, the master of the vessel or its crew makes the vessel unseaworthy (Tug Ocean Prince versus
United States of America, 584 F. 2nd, page 1151). Hence, the Appellant FESC is likewise liable for the damage sustained by the
Appellee. 77

We find strong and well-reasoned support in time-tested American maritime jurisprudence, on which much of our laws and
jurisprudence on the matter are based, for the conclusions of the Court of Appeals adjudging both Capt. Gavino and Capt.
Kabankov negligent.

As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship China vs. Walsh, 78 that it is the
duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not
foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any
subordinate officer of the vessel, at his discretion.

In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that:

Nor are rye satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel. While the pilot doubtless
supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all
matters connected with her navigation, the master is not wholly absolved from his duties while the pilot is on board, and may
advise with him, and even displace him in case he is intoxicated or manifestly incompetent. He is still in command of the vessel,
except so far as her navigation is concerned, and bound to see that there is a sufficient watch on deck, and that the men are
attentive to their duties.

. . . (N)orwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to abandon the vessel entirely to
the pilot; but that there are certain duties he has to discharge (notwithstanding there is a pilot on board) for the benefit of the
owners. . . . that in well conducted ships the master does not regard the presence of a duly licensed pilot in compulsory pilot waters
as freeing him from every, obligation to attend to the safety of the vessel; but that, while the master sees that his officers and crew
duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the navigation of the vessel, and, when exceptional
circumstances exist, not only to urge upon the pilot to use every precaution, but to insist upon such being taken. 79 (Italics for
emphasis.)

In Jure vs. United Fruit Co., 80 which, like the present petitions, involved compulsory pilotage, with a similar scenario where at and
prior to the time of injury, the vessel was in the charge of a pilot with the master on the bridge of the vessel beside said pilot, the
court therein ruled:

The authority of the master of a vessel is not in complete abeyance while a pilot, who is required by law to be accepted, is in
discharge of his functions. . . . It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in
cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot
that he has to remove any subordinate officer of the vessel. He may exercise it, or not, according to his discretion. There was
evidence to support findings that piaintiff's injury was due to the negligent operation of the Atenas, and that the master of that
vessel was negligent in failing to take action to avoid endangering a vessel situated as the City of Canton was and persons or
property thereon.

A phase of the evidence furnished support for the inferences . . . that he negligently failed to suggest to the pilot the danger which
was disclosed, and means of avoiding such danger; and that the master's negligence in failing to give timelt admonition to the
pilot proximately contributed to the injury complained of. We are of opinion that the evidence mentioned tended to prove
conduct of the pilot, known to the master, giving rise to a case of danger or great necessity, calling for the intervention of the
master. A master of a vessel is not without fault in acquiescing in canduct of a pilot which involves apparent and avoidable danger,
whether such danger is to the vessel upon which the pilot is, or to another vessel, or persons or property thereon or on shore.
(Emphasis ours.)

Still in another case involving a nearly identical setting, the captain of a vessel alongside the compulsory pilot was deemed to be
negligent, since, in the words of the court, "he was in a position to exercise his superior authority if he had deemed the speed
excessive on the occasion in question. I think it was clearly negligent of him not to have recognized the danger to any craft moored
at Gravell Dock and that he should have directed the pilot to reduce his speed as required by the local governmental
regulations. His failure amounted to negligence and renders the respondent liable." 81 (Emphasis supplied.) Though a compulsory
pilot might be regarded as an independent contractor, he is at all times subject to the ultimate control of the ship's master. 82

In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him to navigate it, if the master
observes that the pilot is incompetent or physically incapable, then it is the dury of the master to refuse to permit the pilot to act.
But if no such reasons are present, then the master is justified in relying upon the pilot, but not blindly. Under the circumstances of
this case, if a situation arose where the master, exercising that reasonable vigilance which the master of a ship should exercise,
observed, or should have observed, that the pilot was so navigating the vessel that she was going, or was likely to go, into danger,
and there was in the exercise of reasonable care and vigilance an opportunity for the master to intervene so as to save the ship
from danger, the master should have acted accordingly. 83 The master of a vessel must exercise a degree of vigilance commensurate
with the circumstances. 84

Inasmuch as the matter of negligence is a question of fact, 85 we defer to the findings of the trial court, especially as this is
affirmed by the Court of Appeals. 86 But even beyond that, our own evaluation is that Capt. Kabankov's shared liability is due
mainly to the fact that he failed to act when the perilous situation should have spurred him into quick and decisive action as
master of the ship. In the face of imminent or actual danger, he did not have to wait for the happenstance to occur before
countermanding or overruling the pilot. By his own admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and this
is precisely the reason why he decided not to countermand any of the latter's orders. Inasmuch as both lower courts found Capt.
Gavino negligent, by expressing full agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino.

In general, a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel, and to
third parties for damages sustained in a collision. Such negligence of the pilot in the performance of duty constitutes a maritime
tort. 87 At common law, a shipowner is not liable for injuries inflicted exclusively by the negligence of a pilot accepted by a vessel
compulsorily. 88 The exemption from liability for such negligence shall apply if the pilot is actually in charge and solely in fault.
Since, a pilot is responsible only for his own personal negligence, he cannot be held accountable for damages proximately caused
by the default of others, 89 or, if there be anything which concurred with the fault of the pilot in producing the accident, the vessel
master and owners are liable.

Since the colliding vessel is prima facie responsible, the burden of proof is upon the party claiming benefit of the exemption from
liability. It must be shown affirmatively that the pilot was at fault, and that there was no fault on the part of the officers or crew,
which might have been conducive to the damage. The fact that the law compelled the master to take the pilot does not exonerate
the vessel from liability. The parties who suffer are entitled to have their remedy against the vessel that occasioned the damage,
and are not under necessity to look to the pilot from whom redress is not always had for compensation. The owners of the vessel
are responsible to the injured party for the acts of the pilot, and they must be left to recover the amount as well as they can
against him. It cannot be maintained that the circumstance of having a pilot on board, and acting in conformity to his directions
operate as a discharge of responsibility of the owners. 90 Except insofar as their liability is limited or exempted by statute, the
vessel or her owner are liable for all damages caused by the negligence or other wrongs of the owners or those in charge of the
vessel. Where the pilot of a vessel is not a compulsory one in the sense that the owner or master of the vessel are bound to accept
him, but is employed voluntarily, the owners of the vessel are, all the more, liable for his negligent act. 91

In the United States, the owners of a vessel are not personally liable for the negligent acts of a compulsory pilot, but by admiralty
law, the fault or negligence of a compulsory pilot is imputable to the vessel and it may be held liable therefor in rem. Where,
however, by the provisions of the statute the pilot is compulsory only in the sense that his fee must be paid, and is not in
compulsory charge of the vessel, there is no exemption from liability. Even though the pilot is compulsory, if his negligence was not
the sole cause of the injury, but the negligence of the master or crew contributed thereto, the owners are liable. 92 But the liability of
the ship in rem does not release the pilot from the consequences of his own negligence. 93 The rationale for this rule is that the
master is not entirely absolved of responsibility with respect to navigation when a compulsory pilot is in charge. 94

By way of validation and in light of the aforecited guidepost rulings in American maritime cases, we declare that our rulings
during the early years of this century in City of Manila vs. Gambe, 95 China Navigation Co., Ltd. vs. Vidal, 96 and Yap Tica & Co. vs.
Anderson, et al. 97 have withstood the proverbial test of time and remain good and relevant case law to this day.
City of Manila stands for the doctrine that the pilot who was in command and complete control of a vessel, and not the owners,
must be held responsible for an accident which was solely the result of the mistake of the pilot in not giving proper orders, and
which did not result from the failure of the owners to equip the vessel with the most modern and improved machinery. In China
Navigation Co., the pilot deviated from the ordinary and safe course, without heeding the warnings of the ship captain. It was this
careless deviation that caused the vessel to collide with a pinnacle rock which, though uncharted, was known to pilots and local
navigators. Obviously, the captain was blameless. It was the negligence of the pilot alone which was the proximate cause of the
collision. The Court could not but then rule that —

The pilot in the case at bar having deviated from the usual and ordinary course followed by navigators in passing through the
strait in question, without a substantial reason, was guilty of negligence, and that negligence having been the proximate cause of
the damages, he is liable for such damages as usually and naturally flow therefrom. . . .

. . . (T)he defendant should have known of the existence and location of the rock upon which the vessel struck while under his
control and management. . . . .

Consistent with the pronouncements in these two earlier cases, but on a slightly different tack, the Court in Yap Tico & Co.
exonerated the pilot from liability for the accident where the orders of the pilot in the handling of the ship were disregarded by
the officers and crew of the ship. According to the Court, a pilot is ". . . responsible for a full knowledge of the channel and the
navigation only so far as he can accomplish it through the officers and crew of the ship, and I don't see chat he can be held
responsible for damage when the evidence shows, as it does in this case, that the officers and crew of the ship failed to obey his
orders." Nonetheless, it is possible for a compulsory pilot and the master of the vessel to be concurrently negligent and thus share
the blame for the resulting damage as joint tortfeasors, 98 but only under the circumstances obtaining in and demonstrated by the
instant petitions.

It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is
sufficient that his negligence, concurring with one or more efficient causes other than piaintiff's, is the proximate cause of the
injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is
responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause
without which the injury would not have resulted to as great an extent, and that such cause is not attributable to the person
injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone,
without the negligence or wrongful acts of the other concurrent rortfeasor. 99 Where several causes producing an injury are
concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all
or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of
the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the
same. No actor's negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors.
Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury. 100

There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage.
Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in
combination the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion
each contributed to the injury and either of them is responsible for the whole injury. Where their concurring negligence resulted
in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting damage under Article
2194 101 of the Civil Code. 102

As for the amount of damages awarded by the trial court, we find the same to be reasonable. The testimony of Mr. Pascual Barral,
witness for PPA, on cross and redirect examination, appears to be grounded on practical considerations:

Q So that the cost of the two additional piles as well as the (two) square meters is already included in this P1,300,999.77.

A Yes sir, everything. It is (the) final cost already.

Q For the eight piles.

A Including the reduced areas and other reductions.

Q (A)nd the two square meters.

A Yes sir.

Q In other words, this P1,300,999.77 does not represent only for the six piles that was damaged as well as the corresponding two
piles.

A The area was corresponding, was increased by almost two in the actual payment. That was why the contract was decreased,
the real amount was P1,124,627.40 and the final one is P1,300,999.77.
Q Yes, but that P1,300,999.77 included the additional two new posts.

A It was increased.

Q Why was it increased?

A The original was 48 and the actual was 46.

Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair and reconstruction in 1982, that
took almost two years?

A Yes sir.

Q May it not happen that by natural factors, the existing damage in 1980 was aggravated for the 2 year period that the damage
portion was not repaired?

A I don't think so because that area was at once marked and no vehicles can park, it was closed.

Q Even if or even natural elements cannot affect the damage?

A Cannot, sir.

x x x           x x x          x x x

Q You said in the cross-examination that there were six piles damaged by the accident, but that in the reconstruction of the pier,
PPA drove and constructed 8 piles. Will you explain to us why there was change in the number of piles from the original number?

A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive piles at the same point. You have to redesign
the driving of the piles. We cannot drive the piles at the same point where the piles are broken or damaged or pulled out. We
have to redesign, and you will note that in the reconstruction, we redesigned such that it necessitated 8 plies.

Q Why not, why could you not drive the same number of piles and on the same spot?

A The original location was already disturbed. We cannot get required bearing capacity. The area is already disturbed.

Q Nonetheless, if you drove the original number of piles, six, on different places, would not that have sustained the same load?

A It will not suffice, sir. 103

We quote the findings of the lower court with approval.

With regards to the amount of damages that is to be awarded to plaintiff, the Court finds that the amount of P1,053,300.00 is
justified. Firstly, the doctrine of res ipsa loquitur best expounded upon in the landmark case of Republic vs. Luzon Stevedoring
Corp. (21 SCRA 279) establishes the presumption that in the ordinary course of events the ramming of the dock would not have
occurred if proper care was used.

Secondly, the various estimates and plans justify the cost of the port construction price. The new structure constructed not only
replaced the damaged one but was built of stronger materials to forestall the possibility of any similar accidents in the future.

The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 which represents actual damages caused by
the damage to Berth 4 of the Manila International Port. Co-defendants Far Eastern Shipping, Capt. Senen Gavino and Manila Pilots
Association are solidariiy liable to pay this amount to plaintiff. 104

The Solicitor General rightly commented that the adjudicated amount of damages represents the proportional cost of repair and
rehabilitation of the damaged section of the pier. 105

Except insofar as their liability is limited or exempted by statute, the vessel or her owners are liable for all damages caused by
the negligence or other wrongs of the owners or those in charge of the vessel. As a general rule, the owners or those in
possession and control of a vessel and the vessel are liable for all natural and proximate damages caused to persons or property
by reason of her negligent management or navigation. 106

FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not only because it appears to be a mere
afterthought, being tardily raised only in this petition, but also because there is no allegation or evidence on record about Berth
No. 4 being unsafe and unreliable, although perhaps it is a modest pier by international standards. There was, therefore, no error
on the part of the Court of Appeals in dismissing FESC's counterclaim.

II. G.R. No. 130150

This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and solidarily liable with its member
pilot. Capt. Gavino, in the absence of employer-employee relationship and in applying Customs Administrative Order No. 15-65,
as basis for the adjudged solidary liability of MPA and Capt. Gavino.

The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:

PAR. XXVII. — In all pilotage districts where pilotage is compulsory, there shall be created and maintained by the pilots or pilots'
association, in the manner hereinafter prescribed, a reserve fund equal to P1,000.00 for each pilot thereof for the purpose of
paying claims for damages to vessels or property caused through acts or omissions of its members while rendered in compulsory
pilotage service. In Manila, the reserve fund shall be P2,000.00 for each pilot.

PAR. XXVIII. — A pilots' association shall not be liable under these regulations for damage to any vessel, or other property,
resulting from acts of a member of an association in the actual performance of his duty for a greater amount than seventy-five
per centum (75%) of its prescribed reserve fund; it being understood that if the association is held liable for an amount greater
than the amount above-stated, the excess shall be paid by the personal funds of the member concerned.

PAR. XXXI. — If a payment is made from the reserve fund of an association on account of damages caused by a member thereof,
and he shall have been found at fault, such member shall reimburse the association in the amount so paid as soon as practicable;
and for this purpose, not less than twenty-five per centum of his dividends shall be retained each month until the full amount has
been returned to the reserve fund.

PAR. XXXIV. — Nothing in these regulations shall relieve any pilots' association or members thereof, individually or collectively,
from civil responsibility for damages to life or property resulting from the acts of members in the performance of their duties.

Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timery amended this applicable maritime
regulation, state:

Art. IV

Sec. 17. Pilots' Association — The Pilots in a Pilotage District shall organize themselves into a Pilots' Association or firm, the
members of which shall promulgate their own By-Laws not in conflict with the rules and regulations promulgated by the
Authority. These By-Laws shall be submitted not later than one (1) month after the organization of the Pilots' Association for
approval by the General Manager of the Authority. Subsequent amendments thereto shall likewise be submitted for approval.

Sec. 25. Indemnity Insurance and Reserve Fund —

a) Each Pilots' Association shall collectively insure its membership at the rate of P50,000.00 each member to cover in whole or in
part any liability arising from any accident resulting in damage to vessel(s), port facilities and other properties and/or injury to
persons or death which any member may have caused in the course of his performance of pilotage duties. . . . .

b) The Pilotage Association shall likewise set up and maintain a reserve fund which shall answer for any part of the liability
referred to in the immediately preceding paragraph which is left unsatisfied by the insurance proceeds, in the following manner:

1) Each pilot in the Association shall contribute from his own account an amount of P4,000.00 (P6,000.00 in the Manila Pilotage
District) to the reserve fund. This fund shall not be considered part of the capital of the Association nor charged as an expense
thereof.

2) Seventy-five percent (75 %) of the reserve fund shall be set aside for use in the payment of damages referred to above
incurred in the actual performance of pilots' duties and the excess shall be paid from the personal funds of the member
concerned.

x x x           x x x          x x x

5) If payment is made from the reserve fund of an Association on account of damage caused by a member thereof who is found at
fault, he shall reimburse the Association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-
five percentum (25 %) of his dividend shall be retained each month until the full amount has been returned to the reserve fund.
Thereafter, the pilot involved shall be entitled to his full dividend.
6) When the reimbursement has been completed as prescribed in the preceding paragraph, the ten percentum (10%) and the
interest withheld from the shares of the other pilots in accordance with paragraph (4) hereof shall be returned to them.

c) Liability of Pilots' Association — Nothing in these regulations shall relieve any Pilots' Association or members thereof,
individually or collectively, from any civil, administrative and/or criminal responsibility for damages to life or property resulting
from the individual acts of its members as well as those of the Association's employees and crew in the performance of their
duties.

The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of FESC, MPA and Capt. Gavino,
correctly based MPA' s liability not on the concept of employer-employee relationship between Capt. Gavino and itself, but on the
provisions of Customs Administrative Order No. 15-65:

The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo, the Appellant Gavino was not and has
never been an employee of the MPA but was only a member thereof. The Court a quo, it is noteworthy, did not state the factual
basis on which it anchored its finding that Gavino was the employee of MPA. We are in accord with MPA's pose. Case law teaches
Us that, for an employer-employee relationship to exist, the confluence of the following elements must be established: (1)
selection and engagement of employees; (2) the payment of wages; (3) the power of dismissal; (4) the employer's power to
control the employees with respect to the means and method by which the work is to be performed (Ruga versus NLRC, 181
SCRA 266).

x x x           x x x          x x x

The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as erroneously found and declared by the
Court a quo but under the provisions of Customs Administrative Order No. 15-65, supra, in tandem with the by-laws of the
MPA. 107

There being no employer-employee relationship, clearly Article 2180 108 of the Civil Code is inapplicable since there is no
vicarious liability of an employer to speak of. It is so stated in American law, as follows:

The well established rule is that pilot associations are immune to vicarious liability for the tort of their members. They are not
the employer of their members and exercise no control over them once they take the helm of the vessel. They are also not
partnerships because the members do not function as agents for the association or for each other. Pilots' associations are also not
liable for negligently assuring the competence of their members because as professional associations they made no guarantee of
the professional conduct of their members to the general public. 109

Where under local statutes and regulations, pilot associations lack the necessary legal incidents of responsibility, they have been
held not liable for damages caused by the default of a member pilot. 110 Whether or not the members of a pilots' association are in
legal effect a copartnership depends wholly on the powers and duties of the members in relation to one another under the
provisions of the governing statutes and regulations. The relation of a pilot to his association is not that of a servant to the
master, but of an associate assisting and participating in a common purpose. Ultimately, the rights and liabilities between a
pilots' association and an individual member depend largely upon the constitution, articles or by-laws of the association, subject
to appropriate government regulations. 111

No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a pilots' association in ljght of
existing positive regulation under Philippine law. The Court of Appeals properly applied the clear and unequivocal provisions of
Customs Administrative Order No. 15-65. In doing so, it was just being consistent with its finding of the non-existence of
employer-employee relationship between MPA and Capt. Gavino which precludes the application of Article 2180 of the Civil
Code.

True. Customs Administrative Order No. 15-65 does not categorically characterize or label MPA's liability as solidary in nature.
Nevertheless, a careful reading and proper analysis of the correlated provisions lead to the conclusion that MPA is solidarily
liable for the negligence of its member pilots, without prejudice to subsequent reimbursement from the pilot at fault.

Art. 1207 of the Civil Code provides that there is solidary liability only when the obligation expressly so states, or when the law
or the nature of the obligation requires solidarity. Plainly, Customs Administrative Order No. 15-65, which as an implementing
rule has the force and effect of law, can validly provide for solidary liability.We note the Solicitor General's comment hereon, to
wit:

. . . Customs Administrative Order No. 15-65 may be a mere rule and regulation issued by an administrative agency pursuant to a
delegated authority to fix "the details" in the execution or enforcement of a policy set out in the law itself. Nonetheless, said
administrative order, which adds to the procedural or enforcing provisions of substantive law, is legally binding and receives the
same statutory force upon going into effect. In that sense, it has equal, not lower, statutory force and effect as a regular statute
passed by the legislature. 112
MPA's prayer for modification of the appellate court's decision under review by exculpating petitioner MPA "from liability
beyond seventy-five percent (75 %) of Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of Customs
Administrative Order No. 15-65 is in fact limited to seventy-five percent (75 %) of its prescribed reserve fund, any amount of
liability beyond that being for the personal account of the erring pilot and subject to reimbursement in case of a finding of fault
by the member concerned. This is clarified by the Solicitor General:

Moreover, contrary to petitioner's pretensions, the provisions of Customs Administrative Order No. 15-65 do not limit the
liability of petitioner as a pilots' association to an absurdly small amount of seventy-five per centum (75 %) of the member pilots'
contribution of P2,000.00 to the reserve fund. The law speaks of the entire reserve fund required to be maintained by the pilots'
association to answer (for) whatever liability arising from the tortious act of its members. And even if the association is held
liable for an amount greater than the reserve fund, the association may not resist the liability by claiming to be liable only up to
seventy-five per centum (75 %) of the reserve fund because in such instance it has the right to be reimbursed by the offending
member pilot for the excess. 113

WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED and the assailed decision of the
Court of Appeals is AFFIRMED in toto.

Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty. Herbert A. Tria, is REPRIMANDED
and WARNED that a repetition of the same or similar acts of heedless disregard of its undertakings under the Rules shall be dealt
with more severely.

The original members of the legal team of the Office of the Solicitor General assigned to this case, namely, Assistant Solicitor
General Roman G. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition of the same or
similar acts of unduly delaying proceedings due to delayed filing of required pleadings shall also be dealt with more stringently.

The Solicitor Genral is DIRECTED to look into the circumstances of this case and to adopt provident measures to avoid a
repetition of this incident and which would ensure prompt compliance with orders of this Court regarding the timely filing of
requisite pleadings, in the interest of just, speedy and orderly administration of justice.

Let copies of this decision be spread upon the personal records of the lawyers named herein in the Office of the Bar Confidant.

SO ORDERED.