transportation law memory aid

8/11/2019 Transportation Law Memory Aid

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TRANSPORTATION LAW: JURISPRUDENCE, DOCTRINES

AND PRINCIPLES

CONTRACT OF INTERNATIONAL TRANSPORTATION

1. DEFINITION

If according to the contract made by theparties, the place of departure and the place

of destination, whether or not there be a

break in the transportation or a

transshipment, are situated either within the

territories of two High Contracting Parties, or

within the territory of a single High

Contracting Party, if there is an agreed

stopping place within a territory subject to the

sovereignty, mandate or authority of another

power, even though that power is not a party

to this convention.

2. CATEGORIES

a. that where the place of departure and

the place of destination are situated

within the territories of two High

Contracting Parties regardless of whether

or not there be a break in the

transportation or a transshipment; and

b. that where the place of departure and

the place of destination are within the

territory of a single High Contracting

Party if there is an agreed stopping placewithin a territory subject to the

sovereignty, mandate, or authority of

another power, even though the power is

not a party of the Convention.

HIGH CONTRACTING PARTY

Signatories thereto and those which

subsequently adhered to it.

3. JURISDICTION

A complaint for damages against an air carrier

can be instituted only in any of the following

places/courts:

a. The court of the domicile of the carrier;

b. The court of its principal place of

business;

c. The court where it has a place of business

through which the contract had beenmade;

d. The court of the place of destination.

4. JURISDICTION, NOT VENUE

a. The wording of Article 32, which indicates

the places where the action for damages

"must" be brought, underscores the

mandatory nature of Article 28(1).

b. This characterization is consistent with

one of the objectives of the Convention,

which is to "regulate in a uniform manner

the conditions of international

transportation by air."

c.

The Convention does not contain any

provision prescribing rules of jurisdiction

other than Article 28(1), which means

that the phrase "rules as to jurisdiction"

used in Article 32 must refer only to

Article 28(1). In fact, the last sentence of

Article 32 specifically deals with the

exclusive enumeration in Article 28(1) as

"jurisdictions," which, as such, cannot be

left to the will of the parties regardless of

the time when the damage occurred.5. DESTINATION and NOT AGREED STOPPING

PLACE

Article 1(2) also draws a distinction between a

"destination" and an "agreed stopping place."

It is the "destination" and not an "agreed

stopping place" that controls for purposes of

ascertaining jurisdiction under the

Convention.

The contract is a single undivided operation,

beginning with the place of departure and

ending with the ultimate destination. The use

of the singular in this expression indicates the

understanding of the parties to the

Convention that every contract of carriage has

one place of departure and one place of

destination. An intermediate place where the

carriage may be broken is not regarded as a

"place of destination."

6. APPLICABILITY TO ACTIONS BASED ON TORT

It provides that any action based on the injuriesspecified in Article 17 "however founded," i.e.,

regardless of the type of action on which relief is

founded, can only be brought subject to the

conditions and limitations established by the

Warsaw System.

Presumably, the reason for the use of the phrase

"however founded," in two-fold: to accommodate

all of the multifarious bases on which a claim might

be founded in different countries, whether under

code law or common law, whether under contract

or tort, etc.; and to include all bases on which aclaim seeking relief for an injury might be founded

in any one country.

An allegation of willful misconduct resulting in a

tort is insufficient to exclude the case from the

realm of the Warsaw Convention


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NON- USE OF ORIGINAL ROUTE: NOTICE OF LOSS

1.

PROVISIONS IN AN AIRLINE TICKET

a. Carrier may without notice substitute

alternate carriers or aircrafts..DOES NOT AUTHORIZE changing of

stopping places or connecting cities

without notice or unilaterally

b.

Alter or omit stopping places shown in

ticket in case of necessity

Burden of proving necessity:

carrier

Necessity in landing because of

engine trouble does not mean

necessity in shuttling passengers

to other connecting points

without their consent

When, as a result of engine

malfunction, a commercial

airline is unable to ferry its

passengers on the original

contracted route, it nonetheless

has the duty of fulfilling its

responsibility of carrying them

to their contracted destination

on the most convenient route

possible. Failing in this, it cannotjust unilaterally shuttle them,

without their consent, to other

routes or stopping places

outside of the contracted

sectors.

2. NOTICE OF LOSS (Rules Relating to

International Carriage by Air ; Warsaw

Convention)

a. Receipt by the person entitled to delivery

of luggage or goods without complaint is

prima facie evidencethat the same have

been delivered in good condition and in

accordance with the document of

carriage.

b. In case of damage, the person entitled to

delivery must complain to the carrier

forthwith after the discovery of the

damage, and, at the latest, within three

days from the date of receipt in the case

of luggage and seven days from date of

receipt in the case of goods. In the case

of delay the complaint must be made at

the latest within fourteen days from the

date on which the luggage or goods have

been placed at his disposal.

c. Every complaint must be made in writing

upon the document of carriage or by

separate notice in writing dispatched

within the times aforesaid.

d. Failing complaint within the times

aforesaid, no action shall lie against the

carrier, save in the case of fraud on his

part."

APPLICABILITY OF PERIODS OF PRESCRIPTION: ARTICLE

29 OF THE WARSAW CONVENTION AND ARTICLE 1146

1. Applies to all international transportation of

persons baggage or goods performed by any

aircraft for hire

2. PURPOSE OF CONVENTION: Uniformity of

rules regarding claims in international air

travel

A passenger whose claim does not

satisfy the conditions of liability

under the Convention is PRECLUDED

from maintaining an action for

personal injury under local law if the

statute of limitations of two years

had already lapsed.

3. When claim is for breach of contract of

carriage (delay), Convention is applicable.

4. When claim is based emotional harm

(humiliation, embarrassment, mental anguish

etc.) resulting from gross negligence, Civil

Code is applicable. (PP: 4 years)

DUTIES OF CAPTAIN

1. He is a confidential and managerial employee

2. He is one who is command of the vessel; to

him is committed the governance, care, and

management of vessel

3.

Three distinct roles:

a. he is a general agent of the shipowner;

(fiduciary)

b. he is also commander and technical

director of the vessel; and (management;

most important)

c. he is a representative of the country

under whose flag he navigates

4. As agent of the shipowner, he has authority

a. To sign bills of lading, carry goods aboard

and deal with the freight earned, agree

upon rates and decide whether to take

cargo

b. To enter into contracts with respect to

the vessel and the trading of the vessel,

subject to applicable limitations

established by statute, contract orinstructions and regulations of the

shipowner

5. He shall be given the DISCRETION to decide

and perform acts which he deems necessary

for the protection and preservation under his

charge


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a. He is right there on the vessel, in

command of it and (it must be presumed)

knowledgeable as to the specific

requirements of seaworthiness and the

particular risks and perils of the voyage

he is to embark upon

b.

If he decides that the vessel must await

the delivery of certain supplies before its

voyage shall continue, this must be

respected.

c. Here, NECESSITY does not mean

irresistible compelling power. It means

the force of circumstances which

determine the course a man ought to

take

DUTIES OF A PILOT

1.

He is a person duly qualified, and licensed, to

conduct a vessel into or out of ports, or in

certain waters

2. In its broadest sense, includes:

a. those whose duty it is to guide vessels

into or out of ports, or in particular

waters and

b. those entrusted with the navigation of

vessels on the high seas

3. He does not take entire charge of the vessel,

but is merely the adviser of the master, who

retains command and control of thenavigation even in localities where pilotage is

compulsory.

4. COMPULSORY PILOTAGE

a. PURPOSE: 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

b. CONTROL, DUTIES AND LIABILITY

PILOT

To exercise the ordinary skill

and care demanded by the

circumstances..

Under extraordinary

circumstance, a pilot must exercise

extraordinary care.

..usually shown by an expert in

his profession.

He must possess a standard

minimum of special knowledge and

ability.

Once he offers his services

to another, he is holdinghimself out as possessing

skills which others in the

same profession have. If in

fact he shows that he

doesnt, he is not only

negligent, but is guilty of

fraud.

Responsible for the damage

caused to a vessel or to life and

property at ports due to his

negligence or fault

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

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

Absolved at the moment

the Master neglects or refusesto carry out hisorder.

MASTER

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

board (vigilance commensurate

with the circumstances)

He is control except in caseof navigation

He must interfere with the

pilot when the pilot is

obviously incompetent or

intoxicated or displace him

a because of incompetency

or physical incapacity

If no circumstances exist,

he may rely on pilot but not

blindly

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 (all natural and

proximate damages except

insofar as their liability is limited

or exempted by statute)

Absolved of liability when pilot

is on board

But he must cause the

ordinary work of the vessel

to be properly carried on


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and the usual precaution

taken

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.

5. PRESUMPTION: Moving vessel that that

strikes a stationary object such as a dock or

navigational aid is AT FAULT

MARITIME CONTRACTS: MARITIME LIENS

1.

RTC has exclusive original jurisdiction (i)n all

actions in admiralty and maritime where the

demand or claim exceeds two hundred

thousand pesos (P200,000) or in Metro

Manila, where such demand or claim exceeds

four hundred thousand pesos (P400,000).

2. Tests used to determine whether a case

involving a contract comes within the

admiralty and maritime jurisdiction of a court

a. Locational test

Maritime and admiralty

jurisdiction, with a fewexceptions, is exercised only on

contracts made upon the sea

and to be executed thereon.

b. Subject matter test

Depends on the nature and

subject matter of the contract,

having reference to maritime

service and transactions.

Preferred: (w)hether or not a

contract is maritime depends

not on the place where the

contract is made and is to be

executed, making the locality

the test, but on the subject

matter of the contract, making

the true criterion a maritime

service or a maritime

transaction.

3. A contract for furnishing supplies is maritime

and within the jurisdiction of admiralty

4. TESTS in determining existence of MARITIME

LIEN under Philippine Lawsa. Depends on the law of the country where

supplies were furnished

b. Place of the wrongful act;

c. law of the flag;

d. allegiance or domicile of the injured;

e. allegiance of the defendant shipowner;

f. place of contract;

g. inaccessibility of foreign forum;

h. law of the forum.

In a case, if only the Philippine law is the law of forum,

but the other pertains to a foreign country, NO

MARITIME LIEN EXISTS.

5. DOCTRINE OF PROCESSIONAL PRESUMPTION,

MARITIME LIEN ON NECESSARIES: REQUISITES

a. the necessaries must have been

furnished to and for the benefit of the

vessel;

b. the necessaries must have been

necessary for the continuation of the

voyage of the vessel;

c. the credit must have been extended to

the vessel;

d. there must be necessity for the extension

of the credit; and

e. the necessaries must be ordered by

persons authorized to contract on behalf

of the vessel.

LIMITED LIABILITY RULE

1. The civil liability contracted by the shipowners

in the cases prescribed in this section shall be

understood as limited to the value of the

vessel with all her equipment and all the

freight money earned during the voyage.

2. Purpose: encouragement of shipbuilding and

investment in maritime commerce.

3. Consequence: The right to abandon vessel

with all her equipments and the freight he

may have earned during the trip to exempt

himself from civil liability for the indemnities

in favor of third persons which arise from the

conduct of the captain in the care of the

goods which the vessel carried

4.

LIABILITY OF AGENTS OR SHIPOWNERSa. In case of lawful acts and obligations of

the captain beneficial to the vessel

Acts may be enforced as against

the agent for the reason that

such obligations arise from the

contract of agency (provided,

however, that the captain does

not exceed his authority)

b.

In case of unlawful acts of captain,

He is subsidiarily civilly liable.

This liability of the agent is

limited to the vessel and it does

not extend further. For this

reason the Code of Commerce

makes agent liable to the extent

of the value of the vessel, as to

the codes of the principal


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maritime nations provided, with

the vessel, and not individually.

5. EXCEPTIONS TO LIMITED LIABILITY RULE

a. where the injury or death to a passenger

is due either to the fault of the

shipowner, or to the concurring

negligence of the shipowner and the

captain;

b. where the vessel is insured; and ( XPN to

XPN: "creditors in an insolvent

corporation whose assets are not enough

to satisfy the totality of claims against it)

c. in workmen's compensation claims.

6. REAL AND HYPOTHECARY NATURE OF

MARITIME LAW

a. the limitation of the liability of the

agents to the actual value of the vesseland the freight money (no liability if

vessel is lost)

b. the right to retain the cargo and the

embargo and detention of the vessel

even cases where the ordinary civil law

would not allow more than a personal

action against the debtor or person liable.

Rights are CORRELATIVE.

a. If the agent can exempt himself from

liability by abandoning the vessel andfreight money, thus avoiding the

possibility of risking his whole fortune in

the business, it is also just that his

maritime creditor may for any reason

attach the vessel itself to secure his claim

without waiting for a settlement of his

rights by a final judgment, even to the

prejudice of a third person.

b. If the agent is only liable with the vessel

and freight money and both may be lost

through the accidents of navigation it is

only just that the maritime creditor have

some means of obviating this precarious

nature of his rights by detaining the ship,

his only security, before it is lost.

7. WHO IS AN AGENT

A person intrusted with the provisioning

of the vessel, or the one who represents

her in the port in which she happens to

be. He represents the interests of the

owner of the vessel.

8.

CASES INVOLVING UNSEAWORTHINESS: WHOHAS BURDEN

a. Claimant

b. But if shipowner or agent invokes limited

liability rule, burden of proof as to lack of

privity or knowledge on its part with

respect to the matter of negligence or

unseaworthiness is shifted to it

DOCTRINE OF INSCRUTABLE FAULT; DOCTRINE OF LAST

CLEAR CHANCE NOT APPLICABLE IM MARITIME

COLLISSION

1. If both vessels may be blamed for the collision,

each one shall be liable for its own damages,

and both shall be jointly responsible for the

loss and damages suffered by their cargoes. No

one can recover.

2. Doctrine of last clear chance: decision as to its

applicability is reserved. Even if otherwise,

party cannot calim exemption from liability if

the other does discover the perilous situation

of the launch in time to avoid the accident by

the exercise of ordinary care.

BILL OF LADING

1.

DEMMURRAGE

a. It is compensation provided for in the

contract of affreightment for the

detention of the vessel beyond the time

agreed on for loading and unloading

b. It is claim for damages for failure to

accept delivery.

c. In a broad sense, every improper

detention of a vessel may be considered

a demurrage

d. Recoverable

In its strict sense, only when expresslystipulated

In its broadest sense, for a breach of the

implied obligation to load or unload the

cargo with reasonable dispatch, but only

by the party to whom the duty is owed

and only against one who is a party to the

shipping contract.

2. BILL OF LADING

a.

A contract or receipt for the transport of

goods and their delivery to the person

named therein, to the order or bearer.

b. FUNCTIONS:

As a contract, it names the

contracting parties which

include the consignee, fixes the

route, destination, freight rate

or charges, and stipulates the

right and obligations assumed

by the parties. Its terms and

conditions are conclusive on the

parties, including the consignee. As a receipt, parties have

assented to the terms of the

consignment contained therein,

and became bound thereby, so

far as the conditions named are

reasonable in the eyes of the

law.


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Hence, if delivered and

accepted, it constitutes the

contract of carriage even

though not signed

As a document of title.

c. It is contract by of three parties, namely,

the shipper, the carrier, and the

consignee

3. KINDS OF BILL OF LADING

a. On Board Bill Of Lading

One in which it is stated that the

goods have been received on board

the vessel which is to carry the

goods.

b. Received For Shipment Bill Of Lading

One in which it is stated that the

goods have been received for

shipment with or without specifyingthe vessel by which the goods are to

be shipped.

4. OVERSHIPMENT IN VIOLATION OF CUSTOM

LAWS: NOT A GROUND FOR INADHERENCE TO

BINDING FORCE OF ACCEPTED BILL OF LADING

Inaction for a long time conveys the clear

inference that it accepted the terms and

conditions of the bill of lading.

5. THREE INDEPENDENT CONTRACTS UNDER

LETTER OF CREDIT

a. the contract of sale between the

buyer and the seller

b. the contract of the buyer with the

issuing bank, and

c. the letter of credit proper in which

the bank promises to pay the seller

pursuant to the terms and conditions

stated therein

Hence, BILL OF LADING: SEPARATE FROM

OTHER LETTER OF CREDIT ARRANGEMENTS:

DISCREPANCY B/W AMOUNTS COVERED BY

CONTRACT OF SALE AND CONTRACT OFCARRIAGE WILL NOT AFFECT VALIDITY OF

ENFORCEABILITY OF THE CONTRACT OF

CARRIAGE IN THE BILL OF LADING

AVERAGE

1. LAW ON AVERAGES

That claims for averages shall not be

admitted if they do not exceed 5% of the

interest which the claimant may have in the

vessel or in the cargo if it be gross average

and 1% of the goods damaged if particular

average, deducting in both cases the expenses

of appraisal, unless there is an agreement to

the contrary.

2. INAPPLIABLE: Common carriers

They cannot limit their liability for injury

or loss of goods where such injury or loss was

caused by its own negligence

3. WHAT IS GENERAL AVERAGE

It is contribution by the several interests

engaged in the maritime venture to make

good the loss of one of them for the voluntary

sacrifice of a part of the ship or cargo to save

the residue of the property and the lives of

those on board, or for extraordinary expenses

necessarily incurred for the common benefit

and safety of all.

4. WHAT IS PARTICULAR AVERAGE

It is loss happening to the ship, freight, or

cargo which is not be (sic) shared bycontributing among all those interested, but

must be borne by the owner of the subject to

which it occurs.

5. SALVAGE

a. DEFINITION

It is compensation allowed to

persons by whose assistance a ship or her

cargo has been saved, in whole or in part,

from impending peril on the sea, or in

recovering such property from actual

loss, as in case of shipwreck, derelict, or

recapture."

b.

ELEMENTS

(1) a marine peril

(2) service voluntarily rendered when not

required as an existing duty or from a

special contract, and

(3) success in whole or in part, or that the

service rendered contributed to such

success.

c. SALVAGE LAW

When in case of shipwreck, the

vessel or its cargo shall be beyond the

control of the crew, or shall have been

abandoned by them, and picked up and

conveyed to a safe place by other

persons, the latter shall be entitled to a

reward for the salvage.

6. IMPORTANCE OF DISTINCTION OF SALVAGE

AND TOWAGE

The distinction between salvage and

towage is of importance to the crew of the

salvaging ship, for the following reasons: If the

contract for towage is in fact towage, then the

crew does not have any interest or rights in

the remuneration pursuant to the contract.

But if the owners of the respective vessels are


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of a salvage nature, the crew of the salvaging

ship is entitled to salvage, and can look to the

salvaged vessel for its share

Hence, in case of towage, crew has

no interest if vessel owner waived all its

claims.

CARRIAGE OF GOODS BY SEA ACT

1. RULE ON PRESCRIPTION

Unless notice of loss or damage and

the general nature of such loss or damage be

given in writing to the carrier of his agent at the

port of discharge or at the time of the removal

of the goods into the custody of the person

entitled to delivery thereof under the contract

of carriage, such removal shall be prima facieevidence of the delivery by the carrier of the

goods as described in the bill of lading. If the

loss or damage is not apparent, the notice must

be given within three days of the delivery.

In any event the carrier and the ship

shall be discharged from all liability in respect

of loss or damage unless suit is brought within

one year after delivery of the goods or the

date when the goods should have been

delivered: Provided, That if a notice of loss or

damage, either apparent or concealed, is notgiven as provided for in this section, that fact

shall not affect or prejudice the right of the

shipper to bring suit within one year after the

delivery of the goods or the date when the

goods should have been delivered.

2.

PURPOSE OF RULE: To meet the exigencies of

maritime hazards

3. PARTIES INVOLVED

a. CARRIER

Owner or the charterer who enters into a

contract of carriage with a shipper

b. SHIP

Any vessel used for the carriage of goods

by sea

4. WHAT CONSTITUTES DELIVERY

Delivery to the arrastre operator. That

delivery is evidenced by tally sheets which

show whether the goods were landed in good

order or in bad order, a fact which the

consignee or shipper can easily ascertainthrough the customs broker

Consistent with duty imposed water carriers

was merely to transport from wharf to wharf

and that the carrier was not bound to deliver

the goods at the warehouse of the consignee

5. RULE (1): SHALL PREVAIL OVER STIPULATIONS

OF PARTIES

Any clause, covenant, or agreement in a

contract of carriage relieving the carrier or the

ship from liability for loss or damage to or in

connection with the goods . . . or lessening

such liability otherwise than as provided in

this Act, shall be null and void and of no

effect." (Section 3.)

6. EVENTS ENVISIONED

a. LOSS

When thing perishes, or goes out of

commerce, or disappears in such a way

that its existence unknown or it cannot

be recovered.

A situation where there is no delivery at

all was made by the shipper of the goodsbecause the same had perished, gone out

of commerce, or disappeared that their

existence is unknown or they cannot be

recovered

Hence, there is no loss in case of

misdelivery.

b. DAMAGE

7. BASIS OF LIABILITY OF ARRASTRE OPERATOR:

DIFFERENT FROM THAT OF A CARRIER

a. Period

The action against the arrastre operator

to enforce liability for loss of the cargo or

damage thereto should be filed within

one year from the date of the discharge

of the goods or from the date when the

claim for the value of such goods has

been rejected or denied by the arrastre

operator.

b.

Condition PrecedentA claim (provisional or final) shall have

been previously filed with the arrastre

operator within fifteen days from the

date of the discharge of the last package

from the carrying vessel

8. PRESCRIPTION OF ACTIONS UNDER RULE 1:

NOT INTERRUPTED OR TOLLED BY

EXTRAJUDICIAL WRITTEN DEMAND OF

CREDITOR

REASON: Matters affecting transportation of

goods by sea be decided in as short a time as

possible; the application of the provisions of

Article 1155 of the new Civil Code would

unnecessarily extend the period and permit

delays in the settlement of questions affecting

transportation, contrary to the clear intent

and purpose of the law.


8/8

9. RULE INAPPLICABLE WITH REGARDS INSURERS

LIABILITY

Insurer's liability is based not on the contract

of carriage but on the contract of insurance

RULING UNDER FILIPINO MERCHANTS

INSURANCE CO. INC V ALEJANDRO: INAPPLICABLE

The insurer, like the shipper, may no longer file

a claim against the carrier beyond the one-year

period provided in the law. But it does not

mean that the shipper may no longer file a

claim against the insurer because the basis of

the insurer's liability is the insurance contract.

10.CARRIER MAY LIMIT LIABILITY UNLESS SHIPPER

DECLARES GREATER VALUE

Neither the carrier nor the ship shall in any

event be or become liable for any loss or

damage to or in connection with the

transportation of goods in an amount

exceeding $500 per package lawful money of

the United States, or in case of goods not

shipped in packages, per customary freight

unit, or the equivalent of that sum in other

currency, unless the nature and value of such

goods have been declared by the shipper

before shipment and inserted in the bill of

lading. This declaration, if embodied in the bill

of lading shall be prima facie evidence, but

shall be conclusive on the carrier.

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