First Philippine Industrial Corp. vs. Court of Appeals(101 SCRA 661, 1998)

Facts: Petitioner is a grantee of a pipeline concession under R.A. No. 387, as amended, a contract, install and operate oil pipelines. The original pipeline concession was granted in 1967 and renewed by the Energy Regulatory Board in 1992.

Sometime in January 1995, petitioner applied for a mayors permit with the Office of the Mayor of Batangas City. However, before the mayors permit could be issued, the respondent City Treasurer required petitioner to pay a local tax based on its gross receipts for the fiscal year 1993 pursuant to the Local Government Code. The respondent City Treasure assessed a business tax on the petitioner amounting to P956,076.04 payable in four installments based on the gross receipts for products pumped at GPS-1 for the fiscal year 1993 which amounted to P181,681,151.00. in order not to hamper its operations, petitioner paid the tax under protest in the amount of P239, 019.01 for the first quarter of 1993.

On June 15, 1994, petitioner filed with the RTC of Batangas City a complaint for tax refund with prayer for writ of preliminary injunction against respondents City of Batangas and Adoracion Arellano in her capacity as City Treasurer. In its complaint, petitioner alleged, inter alia, that: (1) the imposition and collection of the business tax on its gross receipts violates Sec. 133 of the Local Government Code; (2) the authority of cities to impose and collect a tax on the gross receipts of contractors and independent contractors under Sec. 141(e) and 151 does not include the authority to collect such taxes on transportation contractors for, as defined under Sec. 131(h), the term contractors excludes transportation contactors; and (3) the City Treasurer illegally and erroneously imposed and collected the said tax, thus meriting the immediate refund of the tax paid.

Traversing the complaint, the respondents argued that petitioner cannot be exempt from taxes under Sec. 133 (J) of the Local Government Code as said exemption applied only to transportation contractors and persons engaged in the transportation by hire and common carriers by air land and water. Respondents assert that pipelines are not included in the term common carrier which refers solely to ordinary carriers as trucks, trains, ships and the like. Respondents further posit that the term common carrier under the said Code pertains to the mode or manner by which a product is delivered to its destination.

Issue: Whether or not the petitioner is a common carrier so that in the affirmative, he is not liable to pay the carriers tax under the Local Government Code of 1991?

Held: Petitioner is a common carrier.

A common carrier may be defined, broadly, as one who holds himself out to the public as engaged in the business of transporting persons or property from place to place, for compensation, offering his services to the public generally.

Article 1732 of the Civil Code defines a common carrier as any person, corporation, firm or association engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for compensation, offering their services to the public.

D. Cases:1. DE GUZMAN VS. COURT OF APPEALS (168 SCRA 612)

Facts: Cendena was a junk dealer and was engaged in buying used bottles and scrap materials in Pangasinan and brought these to Manila for resale. He used two 6-wheeler trucks. On the return trip to Pangasinan, he would load his vehicles with cargo which various merchants wanted delivered to Pangasinan. For that service, he charged freight lower than regular rates. General Milk Co. contacted with him for the hauling of 750 cartons of milk. On the way to Pangasinan, one of the trucks was hijacked by armed men who took with them the truck and its cargo and kidnapped the driver and his helper. Only 150 cartons of milk were delivered. The Milk Co. sued to claim the value of the lost merchandise based on an alleged contract of carriage. Cendena denied that he was a common carrier and contended that he could not be liable for the loss it was due to force majeure. The trial court ruled that he was a common carrier. The CA reversed.

Issue: Whether or not Cendena is a common carrier?

Held: Yes, Cendena is properly characterized as a common carrier even though he merely backhauled goods for other merchants, and even if it was done on a periodic basis rather than on a regular basis, and even if his principal occupation was not the carriage of goods. Article 1732 makes no distinction between one whose principal business activity is the carrying of persons or goods or both, and one who does such carrying only as an ancillary activity. It also avoids making a distinction between a person or enterprise offering transportation services on a regular or scheduled basis and one offering service on an occasional, episodic or unscheduled basis. Neither does it make a distinction between a carrier offering its services to the general public and one who offers services or solicits business only from a narrow segment of population.

2. Planters Porducts vs. CA (226 SCRA)

Facts: Planters Product Inc. purchased from Mitsubishi international corporation metric tons of Urea fertilizer, which the latter shipped aboard the cargo vessel M/V Sun Plum owned by private respondent Kyosei Kisen Kabushiki Kaisha. Prior to its voyage, a time charter-party on the vessel respondent entered into between Mitsubishi as shipper/charterer and KKKK as ship owner, in Tokyo, Japan.

Before loading the fertilizer aboard the vessel, (4) of her holds were presumably inspected by the charterers representative and found fit to take a load of urea in bulk. After the Urea fertilizer was loaded in bulk by stevedores hired by and under the supervision of the shipper, the steel hatches were closed with heavy iron lids. Upon arrival of vessel at port, the petitioner unloaded the cargo pursuant to the terms and conditions of the charter-party. The hatches remained open throughout the duration of the discharge.

Upon arrival at petitioners warehouse a survey conducted over the cargo revealed a shortage and the most of the fertilizer was contaminated with dirt. As such, Planters filed an action for damages. The defendant argued that the public policy governing common carriers do not apply to them because they have become private carriers by reason of the provisions of the charter-party.

Issue: Whether or not the charter-party contract between the ship owner and the charterer transforms a common carrier into a private carrier?

Held: A charter party may either her be time charter wherein the vessel is leased to the charterer, wherein the ship is leased to the charterer for a fixed period of time or voyage charter, wherein the ship is leased for a single voyage. In both cases, the charter party provides for the hire of the vessel only, either for a determinate time or for a single or consecutive voyage.

It is therefor imperative that such common carrier shall remain as such, notwithstanding the charter of the whole or part of the vessel by one or more persons, provided the charter is limited to the ship only, as in the case of a time-charter or voyage-charter. It is only when the charter includes both ship and its crew as in bareboat or demise that it becomes a private carrier. Undoubtedly, a shipowner in a time or voyage charter retains in possession and control of the ship, although her holds may be the property of the charterer.

6. Fisher vs. Yangco Steamship (31 Phil 1)

Facts: The complained alleges that plaintiff is a stockholder in Yangco Steamship

Company, the owner of the large steam vessels, duly licensed to engage in the coastwise trade of the Philippine Island; that on or about June 10, 1912, the directors of the company, adopted a resolution which was thereafter ratified and affirmed by the stockholders of the company expressly declaring and providing that the classes of merchandise to be carried by the company in its business as common carrier do not include dynamite, powder or other explosives, and expressly prohibiting the officers, agents an d servants of the company from offering to carry, accepting for carriage or carrying said dynamite, powder or other explosives.

Issue: Whether the refusal of the owner and officer of a steam vessel, to accept for carriage dynamite, powder or other explosives for carriage can be held to be a lawful act?

Held: The traffic in dynamite gun powder and other explosive is vitally essential to the material and general welfare of the inhabitants of this islands and it these products are to continue in general use throughout the Philippines they must be transported from water to port to port in various island which make up the Archipelago. It follows that a refusal by a particular vessel engage as a common carrier of merchandise in coastwise trade in the Philippine Island to accept such explosives for carriage constitutes a violation.

The prohibition against discrimination penalized under the statute, unless it can be shown that there is so Real and substantial danger of disaster necessarily involved in the courage of any or all of this article of merchandise as to render such refusal a due or unnecessary or a reasonable exercise or prudence and discretion on the part of the ship owner.

7. Loadstar Shipping vs. CA (315 SCRA 339, 1999)

Facts: On November 19, 1984, loadstar received on board its M/V Cherokee bales of lawanit hardwood, tilewood and Apitong Bolidenized for shipment. The goods, amounting to P6,067, 178. Were insured for the same amount with the Manila Insurance Company against various risks including Total Loss by Total Loss of the Vessel. On November 20, 1984, on its way to Manila from the port of Nasipit, Agusan Del Norte, the vessel, along with its cargo, sank off Limasawa Island. As a result of the total loss of its shipment, the consignee made a claim with loadstar which, however, ignored the same. As the insurer, MIC paid to the insured in full settlement of its claim, and the latter executed a subrogation receipt therefor. MIC thereafter filed a complaint against loadstar alleging that the sinking of the vessel was due to fault and negligence of loadstar and its employees.

In its answer, Loadstar denied any liability for the loss of the shippers goods and claimed that the sinking of its vessel was due to force majeure. The court a quo rendered judgment in favor of MIC., prompting loadstar to elevate the matter to the Court of Appeals, which however, agreed with the trial court and affirmed its decision in toto. On appeal, loadstar maintained that the vessel was a private carrier because it was not issued a Certificate of Public Convenience, it did not have a regular trip or schedule nor a fixed route, and there was only one shipper, one consignee for a special crago.

Issue: Whether or not M/V Cherokee was a private carrier so as to exempt it from the provisions covering Common Carrier?

Held: Loadstar is a common carrier.

The Court held that LOADSTAR is a common carrier. It is not necessary that the carrier be issued a certificate of public convenience, and this public character is not altered by the fact that the carriage of the goods in question was periodic, occasional, episodic or unscheduled. Further, the bare fact that the vessel was carrying a particular type of cargo for one shipper, which appears to be purely co-incidental; it is no reason enough to convert the vessel from a common to a private carrier, especially where, as in this case, it was shown that the vessel was also carrying passengers.

Article 1732 also carefully avoids making any distinction between a person or enterprise offering transportation service on a regular or scheduled basis and one offering such service on an occasional, episodic or unscheduled basis. Neither does Article 1732 distinguish between a carrier offering its services to the "general public," i.e., the general community or population, and one who offers services or solicits business only from a narrow segment of the general population.

8. First Philippines Industrial Corp. vs. CA (300 SCRA 661)

Facts: Petitioner is a grantee of a pipeline concession under R.A. No. 387, as amended, a contract, install and operate oil pipelines. The original pipeline concession was granted in 1967 and renewed by the Energy Regulatory Board in 1992.

Sometime in January 1995, petitioner applied for a mayors permit with the Office of the Mayor of Batangas City. However, before the mayors permit could be issued, the respondent City Treasurer required petitioner to pay a local tax based on its gross receipts for the fiscal year 1993 pursuant to the Local Government Code. The respondent City Treasure assessed a business tax on the petitioner amounting to P956,076.04 payable in four installments based on the gross receipts for products pumped at GPS-1 for the fiscal year 1993 which amounted to P181,681,151.00. In order not to hamper its operations, petitioner paid the tax but under protest in the amount of P239, 019.01 for the first quarter of 1993.

On June 15, 1994, petitioner filed with the RTC of Batangas City a complaint for tax refund with prayer for writ of preliminary injunction against respondents City of Batangas and Adoracion Arellano in her capacity as City Treasurer.

Traversing the complaint, the respondents argued that petitioner cannot be exempt from taxes under Sec. 133(J) of the Local Government Code as said exemption applied only to transportation contractors and persons engaged in the transportation by hire and common carriers by air land and water. Respondents assert that pipelines are not included in the term common carrier which refers solely to ordinary carriers as trucks, trains, ships and the like. Respondents further posit that the term common carrier under the said Code pertains to the mode or manner by which a product is delivered to its destination.

Issue: Whether the petitioner, an oil pipeline operator is a common carrier, and therefore exempted from paying local taxes?

Held: Yes. Petitioner is a common carrier.

Article 1732 of the Civil Code defines a common carrier as any person, corporation, firm or association engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for compensation, offering their services to the public.

A common carrier may be defined, broadly, as one who holds himself out to the public as engaged in the business of transporting persons or property from place to place, for compensation, offering his services to the public generally.

The test for determining whether a party is a common carrier of goods is: 1. He must be engaged in the carrying of goods for others as a public employment, and must hold himself out as ready to engage in the transportation of goods or persons generally as a business and not as a casual occupation; 2.He must undertake to carry goods of the kind to which his business is confined; 3. He must undertake to carry by the method by which his business is conducted and over his established roads; and 4. The transportation must be for hire.

Based on the above definition and requirements, there is no doubt that the petitioner is a common carrier.

9. Home Insurance vs. Amearican Steamship (23 SCRA 24)

Facts: The Consorcio Pesquero del Peru of South America shipped jute bags of Peruvian fishmeal through SS Crowborough, consigned to San Miguel Brewery, Inc. The cargo, which was insured by Home Insurance Company, arrived at the port of Manila and was discharged to the lighters of the Luzon Stevedoring Corporation. When the same was delivered to the consignee, there were shortages amounting to P 12, 033.85, prompting the latter to pay against Luzon Stevedoring Co. Because the others denied liability, Home Insurance paid San Miguel the insurance value loss. This cost was brought by the former to recover indemnity from Luzon Stevedoring and the ship owner. Luzon Stevedoring raised the defense that it deliver with due diligence in the same from the carrier. Mexican Steamship Agencies denied liability on the ground that the charter party referred to in the bills of lading, the charter, not the ship owner, was responsible for any loss or damage of the cargo. Furthermore, it claimed to have exercised due diligence in stowing the goods and as a mere forwarding agent, it was not responsible for losses or damages to the cargo.

Issue: Whether or not the stipulation in the charter party to owners non-liability was valid as to absolve the American Steamship from liability loss?

Held: The Civil Code provision on common carriers should not be applied where the carrier is not acting as such but as a private carrier. The stipulation in the charter party absolving the owner from liability for loss due to the negligence of its agent is void only if the strict public policy governing common carriers is applied. Such policy has no force where the public at large is not involved, as in the case of a ship totally chartered for the use of a single party.

10. San Pablo vs. Pantranco (153 SCRA 199)

Facts: The Pantranco South Express, Inc., hereinafter referred to as PANTRANCO is a domestic corporation engaged in the land transportation business with PUB service for passengers and freight and various certificates for public conveniences (CPC) to operate passenger buses from Metro Manila to Bicol Region and Eastern Samar. On March 27,1980 PANTRANCO through its counsel wrote to Maritime Industry Authority (MARINA) requesting authority to lease/purchase a vessel named MN "Black Double" "to be used for its project to operate a ferryboat service from Matnog, Sorsogon and Allen, Samar that will provide service to company buses and freight trucks that have to cross San Bernardo Strait. In a reply of April 29,1981 PANTRANCO was informed by MARINA that it cannot give due course to the request.PANTRANCO nevertheless acquired the vessel MN "Black Double" on May 27, 1981 for P3 Million pesos. It wrote the Chairman of the Board of Transportation (BOT) through its counsel, that it proposes to operate a ferry service to carry its passenger buses and freight trucks between Allen and Matnog in connection with its trips to Tacloban City. PANTRANCO claims that it can operate a ferry service in connection with its franchise for bus operation in the highway from Pasay City to Tacloban City "for the purpose of continuing the highway, which is interrupted by a small body of water, the said proposed ferry operation is merely a necessary and incidental service to its main service and obligation of transporting its passengers from Pasay City to Tacloban City. Such being the case there is no need to obtain a separate certificate for public convenience to operate a ferry service between Allen and Matnog to cater exclusively to its passenger buses and freight trucks.Without awaiting action on its request PANTRANCO started to operate said ferry service. Acting Chairman Jose C. Campos, Jr. of BOT ordered PANTRANCO not to operate its vessel until the application for hearing on Oct. 1, 1981. In another order BOT enjoined PANTRANCO from operating the MN "Black Double" otherwise it will be cited to show cause why its CPC should not be suspended or the pending application denied.Epitacio San Pablo (now represented by his heirs) and Cardinal Shipping Corporation who are franchise holders of the ferry service in this area interposed their opposition. They claim they adequately service the PANTRANCO by ferrying its buses, trucks and passengers. BOT then asked the legal opinion from the Minister of Justice whether or not a bus company with an existing CPC between Pasay City and Tacloban City may still be required to secure another certificate in order to operate a ferry service between two terminals of a small body of water. On October 20, 1981 then Minister of Justice Ricardo Puno rendered an opinion to the effect that there is no need for bus operators to secure a separate CPC to operate a ferryboat service.Thus on October 23, 1981 the BOT rendered its decision holding that the ferryboat service is part of its CPC to operate from Pasay to Samar/Leyte by amending PANTRANCO's CPC so as to reflect the same.Cardinal Shipping Corporation and the heirs of San Pablo filed separate motions for reconsideration of said decision and San Pablo filed a supplemental motion for reconsideration that were denied by the BOT on July 21, 1981. Hence, San Pablo filed the herein petition for review on certiorari with prayer for preliminary injunction seeking the revocation of said decision, and pending consideration of the petition the issuance of a restraining order or preliminary injunction against the operation by PANTRANCO of said ferry service

Issue: Whether or not the ferry boat is a common carrier?

Held: Considering the environmental circumstances of the case, the conveyance of passengers, trucks and cargo from Matnog to Allen is certainly not a ferryboat service but a coastwise or interisland shipping service. Under no circumstance can the sea between Matnog and Allen be considered a continuation of the highway. While a ferryboat service has been considered as a continuation of the highway when crossing rivers or even lakes, which are small body of waters separating the land, however, when as in this case the two terminals, Matnog and Allen are separated by an open sea it can not be considered as a continuation of the highway.

The contention of private respondent PANTRANCO that its ferry service operation is as a private carrier, not as a common carrier for its exclusive use in the ferrying of its passenger buses and cargo trucks is absurd. PANTRANCO does not deny that it charges its passengers separately from the charges for the bus trips and issues separate tickets whenever they board the MN "Black Double" that crosses Matnog to Allen. Nevertheless, considering that the authority granted to PANTRANCO is to operate a private ferry, it can still assert that it cannot be held to account as a common carrier towards its passengers and cargo. Such an anomalous situation that will jeopardize the safety and interests of its passengers and the cargo owners cannot be allowed.

Thus the Court holds that the water transport service between Matnog and Allen is not a ferryboat service but a coastwise or interisland shipping service. Before private respondent may be issued a franchise or CPC for the operation of the said service as a common carrier, it must comply with the usual requirements of filing an application, payment of the fees, publication, adducing evidence at a hearing and affording the oppositors the opportunity to be heard, among others, as provided by law.

Eastern Shipping Lines Inc. VS. Intermediate Appellate Court (150 SCRA 463)

Facts: Sometime in or prior to June 1977, the M/S Asiatica, a vessel operated by petitioner Eastern Shipping Lines Inc., loaded at Kobe, Japan for transportation to Manila loaded 5,000 pieces of calorized pipes valued at P256,039.00 which was consigned to Philippine Blooming Mills Co, Inc. and 7 cases of spare parts valued at P92, 361.75 consigned to Central Textile Mills. Both sets of goods were inured against marine risk for their stated value with respondent Development Insurance and Surety Corp.

In the same vessel, 2 containers of garment fabrics were also loaded which was consigned to Mariveles Apparel Corp worth $46,583. The said cargoes were consigned to Nisshin Fire and Marine Insurance. Another cargo loaded to the vessel was the surveying instruments consigned to Aman Enterprises and General Merchandise and insured against respondent Dowa Fire & Marine Insurance for $1,385.00.

On the way to Manila, M/S Asiatica caught fire and sank. This resulted to the loss of the ship and its cargoes. The respective Insurers paid the corresponding marine insurance values and were thus subrogated to the rights of the insured.The insurers filed a suit against the petitioner carrier for recovery of the amounts paid to the insured. However, petitioner contends that it is not liable on the ground that the loss was due to an extraordinary fortuitous event.

Issue: Whether the Civil Code provisions on Common Carriers or the Carriage of the Goods by Sea Act will govern the case at bar?

Held: The law of the country to which the goods are to be transported governs the liability of common carrier in case of their loss, destruction or deterioration. The liability of petitioner is governed primarily by the Civil Code however, in all matters not regulated by the Civil Code, the Code of Commerce and Special Laws will govern with respect to the rights and obligations of the carrier. Therefore COGSA is suppletory to the provisions of the Civil Code.

Sweet Lines Inc, vs. CA (121 SCRA 769)

Facts: Herein private respondents purchased first-class tickets from petitioner at the latters office in Cebu City. They were to board M/V Sweet Grace bound for Catbalogan, Western Samar. Instead of departing at the scheduled hour of about midnight on July 8, 1972, the vessel set sail at 3:00 am of July 9, 1972 only to be towed back to Cebu due to engine trouble, arriving there on the same day at about 4:00 pm. The vessel lifted anchor again on July 10, 1972 at around 8:00 am. Instead of docking at Catbalogan (the first port of call), the vessel proceeded direct to Tacloban. Private respondents had no recourse but to disembark and board a ferry boat to Catbalogan. Hence, the suit for breach of contract of carriage.

Issue: Whether or not the mechanical defect constitutes a fortuitous event which would exempt the carrier from liability.

Held: No. As found by the trial court and the Court of Appeals, there was no fortuitous event or force majeure which prevented the vessel from fulfilling its undertaking of taking the private respondents to Catbalogan. In the first place, mechanical defects in the carrier are not considered a caso fortuito that exempts the carrier from responsibility. In the second place, even granting arguendo that the engine failure was a fortuitous event, it accounted on for the delay of departure. When the vessel finally left the port, there was no longer any force majeure that justified by-passing a port of call.

Eastern Shipping Lines vs. CA 234 SCRA 7

Facts: On December 4, 1981, two fiber drums of riboflavin were shipped from Yokohama, Japan for delivery vessel "SS EASTERN COMET" owned by defendant Eastern Shipping Lines under a bill of lading. The shipment was insured under plaintiff's Marine Insurance Policy. Upon arrival of the shipment in Manila on December 12, 1981, it was discharged unto the custody of defendant Metro Port Service, Inc. The latter excepted to one drum, said to be in bad order, which damage was unknown to plaintiff.

On January 7, 1982 defendant Allied Brokerage Corporation received the shipment from defendant Metro Port Service, Inc., one drum opened and without seal. On January 8 and 14, 1982, defendant Allied Brokerage Corporation made deliveries of the shipment to the consignee's warehouse. The latter excepted to one drum which contained spillages, while the rest of the contents was adulterated/fake.

Plaintiff contended that due to the losses/damage sustained by said drum, the consignee suffered losses totaling P19, 032.95, due to the fault and negligence of defendants. Claims were presented against defendants who failed and refused to pay the same. As a consequence of the losses sustained, plaintiff was compelled to pay the consignee P19, 032.95 under the aforestated marine insurance policy, so that it became subrogated to all the rights of action of said consignee against defendants.

Issue: Whether or not a claim for damage sustained on a shipment of goods can be a solidary or joint and several, liability of the common carrier, the arrastre operator and the customs broker?

Held: The common carrier's duty to observe the requisite diligence in the shipment of goods lasts from the time the articles are surrendered to or unconditionally placed in the possession of, and received by, the carrier for transportation until delivered to, or until the lapse of a reasonable time for their acceptance by, the person entitled to receive them (Arts. 1736-1738, Civil Code). When the goods shipped either are lost or arrive in damaged condition, a presumption arises against the carrier of its failure to observe that diligence, and there need not be an express finding of negligence to hold it liable (Art. 1735, Civil Code). There are, of course, exceptional cases when such presumption of fault is not observed but these cases, enumerated in Article 1734 of the Civil Code, are exclusive, not one of which can be applied to this case.

As to The question of charging both the carrier and the arrastre operator with the obligation of properly delivering the goods to the consignee, the legal relationship between the consignee and the arrastre operator is akin to that of a depositor and warehouseman while the relationship between the consignee and the common carrier is similar to that of the consignee and the arrastre operator. Since it is the duty of the arrastre to take good care of the goods that are in its custody and to deliver them in good condition to the consignee, such responsibility also devolves upon the carrier. Both the arrastre and the carrier are therefore charged with the obligation to deliver the goods in good condition to the consignee. A factual finding of both the Supreme Court and the appellate court was that there was sufficient evidence that the shipment sustained damage while in the successive possession of appellants. Accordingly, the liability imposed on Eastern Shipping Lines, Inc., the sole petitioner in this case, is inevitable regardless of whether there are others solidarily liable with it.

YEPES VS SAMAR

Appellees boarded appellant's Bus No. 56, with its driver, While on its way the bus turned turtle and caught fire, causing injuries to some of its passengers, amongst them the appellees who suffered serious burns. Appellant paid all the expenses for their hospitalization and medical treatment. appellees were asked to sign adocument which stated that operator has incurred in properly giving them the proper medical treatment, that they manifest their desire to waive any and all claims against the operator of the Samar Express Transit. This document notwithstanding, appellees filed with the lower court separate complaints for damages for breach of contract of carriage against appellant. In its answers to the complaints the latter invoked the following defenses: (a) that the accident was due to a fortuitous event beyond its control and/or due to the negligence of one of its passengers, and (b) that the plaintiffs (appellees here) had waived their right to claim for damages against it.

After a joint trial, the lower court rendered judgment ruling the above-mentioned waiver null and void as being contrary to public policy

Appellees did not actually waive their right to claim damages from appellant for the latter's failure to comply with their contract of carriage. All that said document proves is that they expressed a "desire" to make the waiver which obviously is not the same as making an actual waiver of their right. it unnecessary to consider the question of whether or not such waiver if actually made upon the consideration stated in the document already referred to, is against public policy and morals.