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3. Presumption of negligence

obligation in a normal manner;

Art. 1756. In case of death of or injuries to passengers, common

3. The obligor must be free of a concurrent or contributory fault or

carriers are presumed to have been at fault or to have acted

negligence. [Estrada vs Consolacion, 71 SCRA 523]

negligently, unless they prove that they observed extraordinary

diligence as prescribed in articles 1733 and 1755.

Carrier not precluded from proving negligence of other carrier

involved in collision.-- While the plaintiff-passenger does not need to

Presumption of negligence.-- CCs are presumed to have been at fault

prove the negligence of the CC, he may not preclude the CC from proving

or to have acted negligently in case of death or injuries to passengers. This

the legal defense of negligence of the other vehicle involved in the collision

disputable presumption may only be overcome by superior evidence that

(the CC may file a third-party complaint against the other vehicle for

he had observed extraordinary diligence prescribed in 1733, 1755, 1756

reimbursement)

Where death or injury results to the passenger because of the negligence

"Last clear chance" rule not applicable to contracts of carriage.--

of the CC's Es, the CC is liable, notwithstanding the fact that he had

The principle of last clear chance applies only in a suit between the owners

exercised all the diligence of a good father of a family, in the selection and

and drivers of two colliding vehicles; it does not apply where a passenger

supervision of his EEs

demands responsibility from the CC to enforce its contractual obligation; it

would be iniquitous to exempt the driver and his ER on the ground that the

xxx

other driver was also negligent

Consequently, in an action for damages, the issue is not WON the party

Court need not make express finding of carrier's fault or

seeking damages has adduced sufficient evidence to show the negligence

negligence.-- The court need not make an express finding of fault or

of the CC but WON the carrier has presented the required quantum of proof

negligence on the part of the CC in order to hold it responsible to pay the

to overcome the presumption that it has been at fault or that it acted

damages sought by the passenger. By the contract of carriage, the CC

negligently in the performance of its duty.

assumes the express obligation to observe extraordinary diligence in

In the exercise of extraordinary diligence, the CC must give due regard for
all circumstances in connection with the transport of passengers
How presumption of negligence overcome.-- To overcome such
presumption, it must be shown that the CC had observed the required
extraordinary diligence or that the accident was caused by fortuituos
event. In order to constitute caso fortuito that would exempt a person from
responsibility, it is necessary that :
1. The event must be independent of human will;
2. The occurrence must render it impossible for the obligor to fulfill his

transporting the passenger This is an exception to general rule that

negligence must be proved.
Carriers not ordinarily liable for injuries to passengers due to fires
or explosions caused by articles brought into conveyance by other
passengers.-- CC is not ordinarily liable for injuries to passengers due to
fires or explosions caused by articles brought into conveyance by other
passengers. Fairness demands that in measuring the CC's duty towards its
passengers, allowance should be given to the reliance that should be
reposed on the sense of responsibility of all the passengers in regard to
their common safety (that the passenger will not take with him anything
dangerous to his co-passengers.) For the carrier to be liable, he must be
aware, through his EEs of the nature of the article or must have had some

TRANSPO Day 8
reason to anticipate danger therefrom (circumstances must show that

he adheres, he gives his consent. Accordingly, where the CC incurred

there are causes for apprehension that the passenger's baggage is

delay, it is liable only for the amount printed in the ticket the passenger

dangerous and that the CC fails to act in the fact of such evidence) [Nocum

not having declared a higher value for his luggage nor paid addtl. charges.

vs Laguna Bus Co., 1969]

Dispensing with or limiting liability.-- General rule: Under 1757, the
5. Limitation of liability; validity of

extraordinary diligence required under 1733 and 1755 for the carriage of
passengers cannot be dispensed with or lessened (1) by stipulation, (2) by

stipulations

the posting of notices, (3) by statements on tickets, or (4) otherwise

Art. 1757. The responsibility of the common carrier for the safety

What cannot be stipulated in a carriage of passengers :

of passengers as required in Arts. 1733 and 1755 cannot be

dispensed with or lessened by stipulation, by the posting of

(1) absolutely exempting the CC from liability from the passenger's death

notices, by statements on tickets, or otherwise.

or injuries;

Art. 1758. When a passenger is carried gratuitously, a stipulation

(2) lessening the extraordinary diligence required by law to the diligence of

limiting the common carrier's liability for negligence is valid, but

a good father of a family

not for willful acts or gross negligence.

Exception: Effect of gratuitous carriage.-- Under 1758, the CC and the
The reduction of fare does not justify any limitation of the

passenger may validly stipulate limiting the CC's liability for negligence

common carrier's liability.

where the passenger is carried gratuitously (but the parties cannot

stipulate to entirely eliminate liability of CC)

Ticket given to a passenger is a written contract.-- Ticket given to

passenger is a written contract with the ff. elements: (1) the consent of the

Effect of reduction of fares.-- Under 1758 (2), the reduction of fare does

contracting parties manifested by the fact that the passenger boards the

not justify any limitation of the CC's liability -- the law requires gratuitous

ship and the shipper consents or accepts him in the ship for transportation;

passage.

(2) cause or consideration which is the fare paid by the passenger as

stated in the ticket; (3) object, which is the transportation of the passenger

The law is much stricter with respect to carriage of passengers as

from the place of departure to the place of destination which are stated in

compared with carriage of goods: a stipulation limiting the CC's liability in

the ticket.

writing, signed by the parties, supported by sufficient

Passenger bound notwithstanding his failure to sign ticket

consideration, not contrary to law will still be void where the passenger is

containing stipulation limiting liability.-- Even if the passenger failed

not carried gratuitously.

to sign the ticket, he is nevertheless bound by the provisions thereof. Such

provisions are part of the contract of carriage, regardless of the
passenger's lack of knowledge or assent to the regulation. It is what is
known as a contract of adhesion which is not entirely prohibited by law.
The one who adheres to the contract is in reality free to reject it entirely; if

Liability of owner of CC to accommodation passengers or invited

guests.-- [Lara vs Valencia, 1958] an owner of an automobile owes a
guest the duty to exercise ordinary or reasonable care to avoid injuring
him; since one riding in an automobile is no less a guest because he asked

TRANSPO Day 8
for the privilege of doing so, the same obligation of care is imposed upon

liability for injury of passenger is based on a breach of contract of carriage

the driver and owner as in the case of one expressly invited to ride

for failure to bring the passenger safely to his destination

6. Responsibility for acts of EEs

Reason for making the CC liable for the misconduct of its EEs in
their own interest.-- The servant is clothed with delegated authority and

Art. 1759. Common carriers are liable for the death of or injuries

charged with the duty by the CC, to execute his undertaking to carry the

to passengers through the negligence or willful acts of the

passenger safely; when the EE mistreats the passenger, he violates the

former's employees, although such employees may have acted

contractual obligation of the CC for which he represents the CC

beyond the scope of their authority or in violation of the orders of

the common carrier.

Liability of CC for defects of its equipment.-- A passenger is entitled

to recover damages from a CC for an injury resulting from a defect in an

The liability of the common carrier does not cease upon proof that

appliance purchased from a manufacturer, whenever it appears that the

they exercised all the diligence of a good father of a family in the

defect would have been discovered by the CC if it had exercised the

selection and supervision of their employees.

degree of care which under the circumstances was incumbent upon it, with

Art. 1760. The common carrier's responsibility prescribed in the

preceding article cannot be eliminated or limited by stipulation, by
the posting of notices, by statements on the tickets, or otherwise.
4 Agbayani:
Liability for negligence or willful acts of employees.-- Under 1759,
CC are held liable for the death or injuries to passengers caused by the
negligence or the willful acts of their EEs, although such EEs may have
acted beyond the scope of their authority or in violation of the orders of
the CC. The CC cannot escape liability by interposing the defense that its
EEs have acted without any authority or against the orders of the CC
The passenger is entitled to protection from personal violence by the CC or
its agents or EEs since the contract of transportation obligates the CC to
transport a passenger safely to his destination and a CC is responsible for
the misconduct of its EEs
Cardenas vs Fernando, 54 OG no. 4, p. 1043 (1957): (1) extraordinary
diligence required of CC: calculated to protect the passengers as
demanded by the preciousness of human life and by the consideration that
every person must in every way be safeguarded against all injury; (2)

regard to inspection and application of the necessary tests; for the

purposes of this doctrine, the manufacturer is considered as being in law
the agent or servant of the
CC, as far as regards the work of constructing the appliance
Common carrier is exempt from acts of EE not done in line of
duty.-- The CC is exempt from liability where the EE was never in a
position in which it became his duty to his ER to represent him in
discharging any duty of the CC towards the passenger; the EE is deemed
as a stranger or co-passenger since his act was not done in the line of duty
Defense of diligence in selection, etc., of employees.-- CC cannot
escape liability by interposing defense that he exercised due diligence in
the selection and supervision of his EEs; his liability is based on culpa
contractual
When relationship of carrier and passenger terminates.-- The
relation of CC and passenger does not cease at the moment that the
passenger alights from the CC's vehicle at a place selected by the CC at
the point of destination, but continues until the passenger had reasonable
time or a reasonable opportunity to leave the CC's premises. What is a
reasonable time or a reasonable delay within this rule is to be determined

TRANSPO Day 8
from all the circumstances

cause thereof is the negligence of the common carrier, but the

amount of damages shall be equitably reduced.

Elimination or limitation of carrier's liability.-Law does not protect negligence of passenger.-Under 1760, the CC's liability for the negligence or willful acts of his EEs
which cause death of or injury to passengers cannot be eliminated or

Law does not protect negligence of passenger to the extent of doing harm

limited by (1) stipulation, (2) by the posting of notice, (3) by statements on

or damage upon a public utility

the tickets, or (4) otherwise

Diligence required of passenger.-- Diligence of a good father of a
7. Responsibility for acts of strangers and co-passengers

family to avoid injury to himself.

Art. 1763. A common carrier is responsible for injuries suffered by

Effect of negligence of passenger.-- Where the proximate cause of the

a passenger on account of the willful acts or negligence of other

death of or injury to the passenger is his own negligence, and not that of

passengers or of strangers, if the common carrier's employees

the CC, the CC is exempted from liability

through the exercise of the diligence of a good father of a family

could have prevented or stopped the act or omission.

Effect of passenger's contributory negligence.--

4 Agbayani:

Contributory negligence on the part of the passenger does not justify the
CC's exemption from liability. Where it is not the proximate cause of the

The CC is responsible for such willful acts or negligence of other

death or injury, he or his heirs are not barred from recovery of damages,

passengers or of strangers, provided that the CC's EEs could have

provided of course that the CC is the proximate cause of his death or injury

prevented or stopped the act or omission through the exercise of ordinary

diligence. If the injury could not have been avoided by the exercise of

Liability of air carrier under the Warsaw Convention (Oct. 12,

ordinary diligence on the part of the EEs of the CC, the CC is not liable

1929)

Notice that the law speaks of injuries suffered by the passenger but not his

Art. 17. The carrier shall be liable for damages sustained in the

death. However, there appears to be no reason why the common carrier

event of death or wounding of a passenger or any other bodily

should not be held liable under such circumstances. The word "injuries"

injury suffered by a passenger, if the accident which caused the

should be interpreted to include "death." (Aguedo F. Agbayani,

damage so sustained took place on board the aircraft or in the

COMMERCIAL LAW REVIEWER, 1988 ed.)

course of any of the operations of embarking or disembarking.

8. Duty of passenger; effect of contributory negligence

Art. 18. (1) The carrier shall be liable for damage sustained in the
event of the destruction or loss of, or of damage to, any checked

Art. 1761. The passenger must observe the diligence of a good

baggage or any goods, if the occurrence which caused the damage

father of a family to avoid injury to himself.

so sustained took place during the transportation by air.

Art. 1762. The contributory negligence of the passenger does not

(2) The transportation by air within the meaning of the preceding

bar recovery of damages for his death or injuries, if the proximate

paragraph shall comprise the period during which the baggage or

TRANSPO Day 8
goods are in the charge of the carrier, whether in an airport or on

Art. 2199. Except as provided by law or by stipulation, one is

board an aircraft, or, in case of a landing outside an airport, in any

entitled to an adequate compensation only for such pecuniary loss

place whatsoever.

suffered by him as he has duly proved. Such compensation

referred to as actual or compensatory damages.

(3) The period of the transportation by air shall not extend to any
transportation by land, by sea, or by river performed outside an

Art. 2201. In contracts and quasi- contracts, the damages for

airport. If however, such transportation takes place in the

which the obligor who acted in good faith is liable shall be those

performance of a contract for transportation by air, for the

that are natural and probable consequences of the breach of the

purpose of loading, delivery, or transshipment, any damage is

obligation, and which the parties have foreseen or could have

presumed, subject to proof to the contrary, to have been the

reasonably foreseen at the time the obligation was constituted.

result of an event which took place during the transportation by

air.

In case of fraud, bad faith, malice or wanton attitude, the obligor

shall be responsible for all damages which may be reasonably

Art. 19. The carrier shall be liable for damages occasioned by

attributed to the non-performance of the obligation.

delay in the transportation by air of passengers, baggage or goods

Art. 2203. The party suffering loss or injury must exercise
SC has held that these provisions merely declare the carrier liable for

diligence of a good father of a family to minimize the damages

damages in the enumerated cases, if the conditions therein specified are

resulting from the act or omission in question.

present. Neither said provisions nor others in the Convention regulate or

exclude liability for other breaches of contract by the carrier.

Art. 1764. Damages in cases comprised in this Section shall be

awarded with the title XVIII of this book concerning damages.

D. Damages Recoverable from Common Carriers

Article 2206 shall also apply to the death of a passenger caused

by the breach of contract by a common carrier.

1. In general
Art. 2206. The amount of damages for death caused by a crime or
Art. 1764. Damages in cases comprised in this Section shall be

quasi-delict shall be at least P 3,000 (now P50,000), even though

awarded with the title XVIII of this book concerning damages.

there may have been mitigating circumstances. In addition:

Article 2206 shall also apply to the death of a passenger caused

by the breach of contract by a common carrier.

(1) The defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid to the

Art. 2197. Damages may be: (1) Actual or compensatory; (2)

heirs of the latter; such indemnity shall in every case be assessed

Moral;(3) Nominal;

and awarded by the court, unless the deceased on account of

(4) Temperate or moderate; (5) Liquidated;(6) Exemplary or

corrective.
2. Actual or compensatory

permanent physical disability not caused by the defendant, had no

earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the
provisions of article 291, the recipient who is not an heir called to

TRANSPO Day 8
the decedent's inheritance by the law of testate or intestate

xxx

succession, may demand support from the person causing the

death, for a period not exceeding five years, the exact duration to

Art. 2220. Willful injury to property may be a legal ground for

be fixed by the court;

awarding moral damages if the court should find that, under the
circumstances, such damages are justly due. The same rule

(3) The spouses, legitimate and illegitimate descendants and

applies to breaches of contract where the defendant acted

ascendants of the deceased may demand moral damages for

fraudulently or in bad faith.

mental anguish by reason of the death of the deceased.

Art. 2206. xxx
3. Moral
(3) The spouses, legitimate and illegitimate descendants and
Art. 2217. Moral damages include physical suffering, mental

ascendants of the deceased may demand moral damages for

anguish, fright, serious anxiety, besmirched reputation, wounded

mental anguish by reason of the death of the deceased.

feelings, moral shock, social humiliation, and similar injury.

Though incapable of pecuniary computation, moral damages may
be recovered if they are the proximate result of the defendant's

4. Exemplary

wrongful act or omission.

Art. 2229. Exemplary or corrective damages are imposed, by way

Art. 2216. No proof of pecuniary loss is necessary in order that

moral, temperate, liquidated or compensatory damages.

moral, nominal, temperate, liquidated or exemplary damages may

be adjudicated. The assessment of such damages, except
liquidated ones, is left to the
discretion of the court, according to the circumstances of each

of example or correction for the public good, in addition to the

Art. 2232. In contracts and quasi contracts, the court may award
exemplary damages if the defendant acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner.

case.

Art. 2233. Exemplary damages cannot be recovered as a matter of

Art. 2219. Moral damages may be recovered in the following

adjudicated.

analogous cases :
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;

right; the court will decide whether or not they should be

5. Nominal, Temperate and Liquidated

Art. 2221. Nominal damages are adjudicated in order that a right
of the plaintiff, which has been violated or invaded by the
defendant, may be vindicated or recognized, and not for the

xxx

purpose of indemnifying the plaintiff for any loss suffered by him.

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30,

Art. 2224. Temperate or moderate damages, which are more than

32, 34 and 35.

nominal but less than compensatory damages, may be recovered

when the court finds that some pecuniary loss has been suffered

TRANSPO Day 8
but its amount cannot, from the nature of the case, be proved

(9) In a separate civil action to recover civil liability arising from a

with certainty.

crime;

Art. 2226. Liquidated damages are those agreed upon by the

(10) When at least double judicial costs are awarded;

parties to a contract, to be paid in case of breach thereof.

(11) In any other cases where the court deems it just and
Art. 1757. The responsibility of a common carrier for the safety of

equitable that attorney's fees and expenses of litigation should be

passengers as required in Arts. 1733 and 1755 cannot be

recovered.

dispensed with or lessened by stipulation, by the posting of

notices, by statements on tickets, or otherwise.

In all cases, the attorney's fees and expenses of litigation must be

reasonable.

6. Attorney's Fees and Interest

Art. 2210. Interest may, in the discretion of the court, be allowed
Art. 2208. In the absence of stipulation, attorney's fees and

upon damages awarded for breach of contract.

expenses of litigation, other than judicial costs, cannot be

recovered, except:

4 Agbayani:

(1) When exemplary damages are awarded;

Damages arising from death; factors to be considered

(2) When the defendant's act or omission has compelled the

1. number of years on the basis of which the damages shall be computed

plaintiff to litigate with third persons or to incur expenses to

protect his interest;

2. the rate at which the losses sustained should be fixed. In the

(3) In criminal cases of malicious prosecution against the plaintiff;

of the deceased, said damages consist not of the full amount of his

determination of the losses or damages sustained by dependents and heirs

earnings, but of the support they received or would have received from

(4) In case of a clearly unfounded civil action or proceeding

him had he not died in consequence of the negligence of defendant.

against the plaintiff;

In fixing the amount of support, only net earnings are to be considered-(5) Where the defendant acted in gross and evident BF in refusing

total earnings less expenses necessary in the creation of such earnings

to satisfy the plaintiff's plainly valid, just and demandable claim;

less living and incidental expenses

(6) In actions for legal support;

Damages recoverable when death occurs due to commission of

crime.-- (1) indemnity for the death of victim (P 50T); (2) indemnity for

(7) In actions for the recovery of wages or household helpers,

loss of earning capacity of the deceased; (3) moral damages; (4)

laboreres and skilled workers;

exemplary damages; (5) attorney's fees and expenses of litigation; and (6)

(8) In actions for indemnity under workmen's compensation and

employer's liability laws;

interest. Indemnity arising from the fact of death is fixed whereas the
others are still subject to the determination of the court based on evidence
presented; indemnity for death is distinct and separate from the other

TRANSPO Day 8
forms of indemnity

(2) liability for lost earnings are the deceased passenger's net earnings
during his expected length of life based on accepted mortality tables

Common carrier not liable for moral damages to passenger injured

(compensatory damages)

due to negligence of driver.-- A CC's bad faith is not to be lightly

inferred from a mere finding that the contract was breached through

(3) PAL is not liable for exemplary damages where it was not proven that it

negligence of the CC's employees (Fores vs Miranda)

acted in a wanton, fraudulent, reckless, oppressive or malevolent manner

[Davila vs PAL]

Extent of liability of air carrier for death of passenger:

(1) where there was no satisfactory explanation on the part of PAL as to
how and why the accident occurred, the presumption is that it was at fault,
under Art. 1756