TRANSPORTATION LAW COMMON CARRIERS Engaged in the business of carrying goods as a public employment, not casual employment DILIGENCE REQUIRED OF COMMON CARRIERS 1. Standard of diligence: extraordinary diligence a. as far as human care and foresight b. utmost diligence of very cautious persons c. due regard for all circumstances i. In the vigilance over goods ii. For safety of the passengers 2. Presumption of negligence (proof of delivery to a carrier + Arrival at the place of destination in bad order) a. death/injury – presumed negligent unless proves extraordinary diligence b. failure to reach destination w/o injury/death = NO presumption LIABILITIES OF COMMON CARRIERS 1. Principles a. Liability is contractual and arises upon breach b. Obliged to carry passengers with utmost diligence of cautious persons c. Presumed at fault/negligent in case of loss of goods, death or injury d. Carrier is not an insurer against all risks of travel 2. Registered owner rule a. Liable for any damage caused by negligent operation of vehicle although already sold 3. Kabit system a. Contrary to public policy = void and inexistent b. RO is not allowed to prove that another person has become the owner c. BUT one who has availed of the kabit system is not precluded from filing for damages against the one who caused the injury VIGILANCE OVER GOODS - GR: Common carriers are responsible for the loss, destruction/deterioration of goods - XPN: not liable when due to: FAOCO 1. Flood, storm, earthquake, lightning, other natural disaster/calamity 2. Act of public enemy in war 3. Omission of the shipper/owner of the goods 4. Character of the goods/defects in the packaging 5. Order or act of competent public authority EXEMPTING CAUSES 1. Natural disaster or calamity (not all fires but only by lightning is considered natural) a. Proximate and only cause 2. 3. 4. 5. 6. b. Due diligence to prevent or minimize loss, before, during and after c. No delay Act of public enemy (excludes thieves, robbers, insurrectionists; includes pirates) a. War b. Proximate and only cause c. Due diligence to prevent or minimize Act or omission of shipper or owner a. Proximate and only cause b. If mere contributed to loss = still liable for damages but equitably reduced Character of goods a. Loss/destruction/deterioration is due to the character of goods/defects in the packaging b. Due diligence to forestall or lessen the loss Order of competent authority a. Order or act b. Public authority must have power to issue c. Such intervention must be of a character that would render impossible the fulfillment Force majeure a. Independent of human will (exclusion of human agency) b. Impossible to foresee; if can be foreseen, impossible to avoid c. Renders impossible to fulfill obligation normally d. Obligor must be free from any participation in the aggravation e. Common carrier proves: i. Due to accident and not fraud or fault/negligence on the part of captain/owner. OW, cannot invoke exempting causes CONTRIBUTORY NEGLIGENCE - Liability of common carrier shall be reduced when: 1. Negligence of common carrier was the proximate cause 2. Shipper/owner contributed to such loss DURATION OF LIABILITY - From time goods are unconditionally placed in possession of and received by carrier/agent to actual/constructive delivery to consignee - Temporarily unloaded/storage in transit UNLESS stoppage in transit - Storage in warehouse 1. Actual or constructive liability a. Extraordinary liability continues until the consignee has: i. Been advised of the arrival ii. Reasonable opportunity to dispose 2. Temporary unloading or storage a. GR: ED remains when temporarily unloaded or stored in transit b. XPN: stoppage in transitu STIPULATION FOR LIMITATION OF LIABILITY 1. Void stipulations a. Goods transported are at the risk of the owner/shipper b. CC not liable for loss, destruction or deterioration of goods c. CC need not observe any diligence in the custody of goods d. Diligence less than that of a good father of a family e. Not responsible for acts/omission of employees f. Acts committed by thieves/robbers who do not act with grave irresistible threat, violence or force is dispensed with or diminished g. Not responsible for loss on account of defective condition of the car, vehicle, ship h. Exempt from any and all liability for loss or damage occasioned by own negligence i. Unqualified limitation j. Leaving the date of arrival on the sole determination and will of the carrier 2. Limitation of liability to fixed amount - contract fixing sum that may be recovered for the loss is valid if: a. Reasonable and just b. Fairly and freely agreed upon 3. Limitation of liability in absence of declaration of greater value - Stipulation that the CC’s liability is limited to the value of the goods appearing in the bill of lading = binding LIABILITY FOR BAGGAGE OF PASSENGERS - The CC cannot free himself from responsibility by posting notices to the effect that he is not liable for the articles bought - Not liable if: o Force majeure o Theft/robbery with the use of arms/irresistible force o Acts of the passenger, family, servants or visitors o Character of the baggage 1. Checked-in baggage – extraordinary diligence 2. Hand-carried baggage – common carriers are responsible as depositaries if: a. Notice was given to them or to their EEs of the effects bought b. Passengers take the precautions SAFETY OF PASSENGERS VOID STIPULATIONS - GR: responsibility of CC cannot be dispensed with or lessened by stipulation by the posting of notices, statements on tickets - XPN: passenger is carried gratuitously – stipulation limiting CC’s liability for negligence is VALID XPN2XPN: liability for willful acts/gross negligence is valid (reduction of fare does not justify) DURATION OF LIABILITY - Extends to persons boarding cars and those alighting 1. Waiting for carrier/boarding a. Duty to stop conveyances at a reasonable length of time to afford passengers and opportunity to board and enter i. Liable for injuries resulting from sudden starting up or jerking ii. Person boarding a moving car assumes risk of injury 1. Passenger doesn’t assume risk if driver in view but increases the peril by accelerating b. Train: starts from purchase of ticket c. Sea: places himself in the care of carrier & accepted as passenger 2. Arrival at destination a. Continues until passenger has a reasonable opportunity to leave the premises i. Determined from circumstances such as kind of CC, nature of business etc 1. Ship passenger needs at least 1 hour to disembark LIABILITY FOR ACTS OF OTHERS 1. Employees a. GR: liable through negligence of EEs beyond scope of authority i. Even upon proof of diligence in the selection and supervision ii. By stipulation b. XPN: force majeure 2. Other passenger and strangers a. GR: not liable b. XPN: CC’s EEs could have prevented/stopped EXTENT OF LIABILITY FOR DAMAGES 1. Actual – adequate compensation for pecuniary loss, substantiated and proven expenses, genuinely incurred in relation with death, wake/burial a. Loss of earning capacity b. Support for period not exceeding 5 years 2. Moral – incapable of pecuniary estimation, recovered where: a. CC acted fraudulently b. In bad faith c. Death (even without fraud/bad faith) 3. Exemplary – CC acted in wanton, fraudulent, reckless, oppressive or malevolent manner 4. Nominal, temperate and liquidated a. Nominal - right which has been violated may be vindicated, violation of right to be treated with courtesy b. Temperate or moderate – more than nominal but less than compensatory, pecuniary loss cannot be proved with certainty c. Liquidated – agreed upon by the parties to a contract 5. Attorney’s fees - awarded where: a. Exemplary damages are awarded b. Compelled plaintiff to litigate with third persons c. Gross and evident bad faith in refusing to satisfy plaintiff’s valid, just and demandable claim d. Court deems it just and equitable THE MONTREAL CONVENTION OF 1999 APPLICABILITY 1. All international carriage of persons, baggage or cargo 2. Equally to gratuitous carriage 3. International carriage – carriage in which the place of departure and destination WON there be a break: a. Within 2 state parties b. Single state party if there is an agreed stopping place within the territory of another state, even if that state is not a party 4. Carriage to be performed by several successive carriers is deemed to be one undivided carriage if regarded by the parties as a single operation 5. Carriage performed by a person other than contracting carrier a. Contracting carrier – principal makes a contract of carriage with a passenger/consignor b. Actual carrier – performs the whole or part of the carriage but NOT with respect to such part a successive carrier EXTENT OF LIABILITY OF AIR CARRIER 1. Death or injury of passenger – took place a. On board aircraft b. In the course of any of the operations of embarking or disembarking - Damages not exceeding 100K special drawing rights for each passenger (CC should not exclude or limit liability) - CC not liable for damages exceeding 100K SDR if: o Damage was not due to negligence of CC/servants o Solely due to negligence of third party 2. Lost or delayed baggage a. Destruction/loss/damage to checked in baggage i. On board aircraft ii. Period within which the baggage was in charge of the carrier - Carrier not liable if damage resulted from inherent defect/quality/vice of baggage - 3. 4. 5. 6. 7. Liability limited to 1K SDR for each passenger unless passenger made a special declaration of interest AND paid supplementary sum b. Unchecked baggage – CC liable if damage resulted from its fault/agent c. CC liable if destruction/loss/damage took place by air BUT NOT: i. Inherent defect/quality/vice ii. Defective packing of person other than CC iii. War/armed conflict iv. Act of public authority Liability of carrier limited to 17 SDR/kg unless consignor made special declaration of interest AND paid a supplementary sum Delay – liable for damage occasioned by delay in the carriage of passengers/cargo a. Not liable if CC & servants took all measures to avoid damage/impossible to take such measures b. In carriage of persons, liability limited to 4150 special drawing rights SDR is an interest-bearing international reserve asset created by the IMF. a. Basket of international currencies (US dollar, Japanese yen, pound, renminbi) b. Not a currency/claim on the IMF but a claim on freely usable currencies of IMF members c. Value of SDR is set daily Carrier may stipulate that the contract of carriage shall be subject to higher limits of liability Provisions tending to relieve the carrier of liability or to fix a lower limit = NULL AND VOID Prescription – right to damages extinguished if not brought within 2 years from date of arrival at destination/ought to have arrived/stoppage of carriage PUBLIC SERVICE ACT CRITICAL INFRASTRUCTURE – any public services 1. Which owns, uses or operates systems and assets, physical or virtual 2. Vital to the republic of the PH 3. Incapacity/destruction of which would have a detrimental impact on national security 4. Telecommunications and other such vital services declared by pres FOREIGN STATE-OWNED ENTERPRISE – entity in which a foreign state 1. Owns more than 50% of capital (voting rights and beneficial ownership) 2. Control through ownership interests, exercise of more than 50% of voting rights 3. Power to appoint a majority of members of the BOD PUBLIC SERVICE AS PUBLIC UTILITY – person that may own/operate manage or control for in the PH for hire/compensation, general or limited clientele, whether permanent, occasional or accidental and done for general business purposes: 1. Common carrier 2. Freight or carrier service 3. Shipyard, marine railway, marine repair shop, wharf or dock 4. Ice-plant 5. Ice-refrigeration plant 6. Canal, irrigation system 7. Gas, electric light, heat and power, water supply, power, petroleum 8. Sewerage system 9. Wire or wireless communications systems 10. Wire or wireless broadcasting stations 11. Other similar public services PUBLIC UTILITY – public service that operates/manages or controls for public use: 1. Distribution of electricity 2. Transmission of electricity 3. Petroleum and petroleum products pipeline transmission systems 4. Water pipeline distribution systems and wastewater pipeline systems, including sewerage pipeline systems 5. Seaports 6. Public utility vehicles - All concessionaires, JVs and other similar entities that wholly operate/manage or control the above sectors • Upon recommendation of the NEDA, president may recommend to congress classification of PS as public utility based on: 1. Person/entity regularly supplies and transmits and distributes through a network a commodity/service of public consequence 2. Commodity/service is a natural monopoly that needs regulation - Market demand can be supplied by a single entity at a lower cost than by 2 or more entities 3. Commodity/service is necessary for life and occupation - A public service not qualified as a public utility shall be considered a business affected with public interest UNLAWFUL ACTS 1. Service that is unsafe, improper, inadequate or withhold/refuse service which can be demanded and furnished 2. Undue or unreasonable preference or advantage to any person/corporation or to prejudice/disadvantage any person/corporation 3. Refuse or neglect, when requested by the postmaster general, to carry public mail upon terms and conditions agreed upon or fixed by the commission 4. Refuse/neglect when requested by the admin agency to urgently render service to avoid loss on human, material, economic or environment during a state of calamity POWERS OF THE PRESIDENT TO SUSPEND OR PROHIBIT TRANSACTION OR INVESTMENT 1. President may within 60 days from the receipt of such recommendation, suspend or prohibit: a. Merger or acquisition b. Investment in a public service - That results in the grant of control to a foreigner or FC INVESTMENTS BY AN ENTITY CONTROLLED BY OR ACTING ON BEHALF OF THE FOREIGN GOVERNMENT OR FOREIGN STATE-OWNED ENTERPRISES 1. Entity controlled by/ on behalf of the foreign government/state-owned enterprises – PROHIBITED from owning capital in public utility/critical infrastructure (only to investments after effectivity of the act) 2. Foreign state-owned enterprises which own capital prior to effectivity are PROHIBITED from investing ADDITIONAL CAPITAL 3. Sovereign wealth funds and independent pension funds may collectively own up to 30% of the capital 4. Entity FG/FS-owned/controlled shall not make any date or information disclosure/extend assistance RECIPROCITY CLAUSE 1. Foreigners not allowed to own more than 50% of capital of capital infrastructure UNLESS country of foreign national accords reciprocity (rights of similar value in other economic sectors) 2. Public service shall employ a FN ONLY after determination of non-availability of a Philippine National who is competent, able and willing 3. Foreign national seeking admission to the for employment/public service seeking foreign employee must obtain an employment permit 4. Public services employing foreigners shall implement understudy/skills development program
