 Order of Jettison Art. 815 2.

Those in the hold, always beginning with

those of the greatest weight and smallest
 Standard Oil Co. vs Manuel Castelo, value, to the amount and number absolutely
G.R. No. L-13695 indispensable

 Arrival Under Stress Arts. 819 - 821 ARTICLE 816. In order that the goods jettisoned
may be included in the gross average and the
owners thereof be entitled to indemnity, it shall be
 Collision necessary in so far as the cargo is concerned that
their existence on board be proven by means of the
 Gov't. v Philippine Steamship Co. & bill of lading; and with regard to those belonging to
the vessel, by means of the inventory made up
Fernandez Hermanos, before the departure, in accordance with the first
GR No. 18957 paragraph of Article 612. ( ARTICLE 612. The
following obligations are inherent in the office
of captain: )
 Williams v Yangco,
GR No. L-8325 ARTICLE 817. If in lightening a vessel on account
of a storm, in order to facilitate her entry into a port
or roadstead, part of her cargo should be transferred
 Manila Steamship v Abdulhaman, to lighters or barges and be lost, the owner of said
GR No. L-9534 part shall be entitled to indemnity, as if the loss has
originated from a gross average, the amount thereof
being distributed between the entire vessel and
 Urutia v Baco River Plantation, cargo which caused the same.
GR No. L-7675
If, on the contrary, the merchandise transferred
 Art. 827 to 839 Code of Commerce should be saved and the vessel should be lost, no
liability can be demanded of the salvage.
 Zones of Collision
ARTICLE 818. If, as a necessary measure to
extinguish a fire in a port; roadstead; creek, or bay,
it should be decided to sink any vessel, this loss
shall be considered gross average, to which the
Jettison is an intentional act of throwing vessels saved shall contribute.
overboard

1. a ship parts of shipment or

2. dropping out some body part of a vessel

in order to save the rest of the shipment or

the whole vessel from complete damage.

Whenever jettison occurs, the owner of the

vessel is entitled to General Average. It
implies that all the stakeholders are to bear
equal losses in case of a damage to any
shipment regardless of whose goods they
are.

Order of Jettison Art. 815 ( Code of

Commerce in Maritime Law

ARTICLE 815

The captain shall supervise the jettison, and

shall order the goods cast overboard in the
following order:

1. Those which are on deck, beginning with

those which embarrass the handling of the
vessel or damage her, preferring, if possible,
the heaviest ones and those of least utility
and value.
G.R. No. L-13695 October 18, 1921 BEFORE, denying deck cargo the right to contribution by
way of general average in case of jettison
STANDARD OIL COMPANY OF NEW YORK, plaintiff-
appellee,
vs.
it is now generally held that jettisoned goods carried on
deck, according to the custom of trade, by steam vessels
MANUEL LOPEZ CASTELO, defendant-appellant.
navigating coastwise and inland waters, are entitled to
contribution as a general average loss

PLAINTIFF IS ENTITLED TO RECOVER IN SOME WAY

AND FROM SOMEBODY AN AMOUNT BEARING SUCH
SUMMARY PROPORTION TO ITS TOTAL LOSS AS THE VALUE OF
BOTH THE SHIP AND THE SAVED CARGO BEARS TO THE
Manuel Lopez - Owner VALUE OF THE SHIP AND ENTIRE CARGO BEFORE THE
Jose LIm Chumbuque- Charterer JETTISON WAS AFFECTED.
Standard Oil Company
Question is who?
STIPULATION IN THE CONTRACT :
CHARTERER SHOULD HAVE NO CONTROL AND CREW SHALL
BE SUPPLIED BY THE OWNER
FACTS
standard Oil Company delivered to the agent of the
boat in Manila a quantity of petroleum to be conveyed  By contract of character dated February 8, 1915,
to the port of Casiguran
 Manuel Lopez Castelo, as owner, let the small
For this consignment interisland steamer Batangueño for the term of
one year to Jose Lim Chumbuque
 a bill of lading of the usual form was delivered,
 for use in the conveying of cargo between certain
 with the stipulation that freight should be paid at the ports of the Philippine Islands.
destination.
(The receiver of goods (the buyer) pays the
freight charges upon delivery of the goods. The In this contract
buyer does not take ownership or liability for the
goods until the cargo gets to the buyer's premises.  it was stipulated that
)  the officers and crew of the
Batangueño should be supplied by
the owner, and
 Said bill of lading contained no provision with respect
to the storage of the petroleum, but it was in fact
placed upon the deck of the ship and not in the  that the charterer should have no
hold. other control over the captain, pilot,
and engineers
 than to specify the voyages
JETTISON  that they should make and to
require the owner to discipline or
thirteen cases of the petroleum were recovered, but the relieve them as soon as possible in
remainder was wholly lost. case they should fail to perform the
duties respectively assigned to
them.
TO RECOVER THE VALUE OF THE
PETROLEUM: CFI  While the boat was being thus used by the charterer in
the interisland trade,
Standard Oil Company instituted an action against the owner.
CFI rendered judgment in favor of the plaintiff  the standard Oil Company delivered to the
agent of the boat in Manila a quantity of
GENERAL RULE petroleum to be conveyed to the port of
Casiguran, in the Province of Sorsogon.
Ordinarily the loss of cargo carried on deck shall not be
considered a general average loss.  For this consignment

Rule I of the York-Antwerp Rules, as follows: "No  a bill of lading of the usual form was
jettison of deck cargo shall be made good as general delivered,
average."
 with the stipulation that freight should be paid
deck cargo is in an extra-hazardous position
at the destination.
and, if on a sailing vessel, its presence is likely
(The receiver of goods (the buyer)
to obstruct the free action of the crew in
pays the freight charges upon delivery of
managing the ship
the goods. The buyer does not take
ownership or liability for the goods until
naturally it is always the first cargo to go over in
the cargo gets to the buyer's premises. )
case of emergency. Indeed, in subsection 1 of
article 815 of the Code of Commerce, it is
expressly declared that deck cargo shall be  Said bill of lading contained no provision with
cast overboard before cargo stowed in the respect to the storage of the petroleum, but it
hold. was in fact placed upon the deck of the ship
and not in the hold.
 the captain to take those steps gave rise to a liability
 While the boat was on her way to the port for which the owner of the ship must answer.
mentioned, and off the western coast of Sorsogon,
It is therefore proper that any person whose property
 a violent typhoon passed over that region, and may have been cast overboard by order of the captain
while the storm was at its height should have a right of action directly against the ship's
owner for the breach of any duty which the law may
have imposed on the captain with respect to such
 the captain was compelled for the safety of all
cargo.
to jettison the entire consignment of
petroleum consisting of two hundred cases.

 When the storm abated the ship made port, and  Upon this point it will be observed that the cargo
thirteen cases of the petroleum were was carried upon deck; and it is a
recovered, but the remainder was wholly lost.
GENERAL RULE
 To recover the value of the petroleum thus 1. both under the Spanish Commercial Code
jettisoned but not recovered, the and under the doctrines prevailing in the
courts of
 present action was instituted by the Standard Oil
Company against the owner of the ship in the 2. admiralty of England America, as well as
Court of First Instance of Manila, where judgment in other countries,
was rendered in favor of the plaintiff. From this
judgment the defendant appealed. that ordinarily the loss of cargo carried
on deck shall not be considered a general
 No question is made upon average loss.
1. the point that the captain exercised proper This is clearly expressed in Rule I of the York-
discretion in casting this petroleum overboard, Antwerp Rules, as follows: "No jettison of
a) as a step necessary to the salvation of the deck cargo shall be made good as general
ship; and average."
2. in fact it appears that even after the vessel was The reason for this rule is found in the fact
thus eased, she was with difficulty prevented from that deck cargo is in an extra-hazardous
capsizing, so great was the intensity of the storm. position and, if on a sailing vessel, its
presence is likely to obstruct the free
ISSUES action of the crew in managing the ship.

1. whether the loss of this petroleum was a general Moreover, especially in the case of small
average loss or a particular less to be borne solely by the vessels, it renders the boat top-heavy and
owner of the cargo. thus may have to be cast overboard sooner
than would be necessary if it were in the hold;
(From what has been said it is evident that the loss of
this petroleum is a general and not a special average,
) and naturally it is always the first cargo to go
over in case of emergency. Indeed, in
subsection 1 of article 815 of the Code of
2. Who is the person, or persons, who are liable to Commerce, it is expressly declared that deck
make good this loss, and what are the conditions under cargo shall be cast overboard before cargo
which the action can be maintained? stowed in the hold.

 But this rule,

a) The owner of the ship both in  denying deck cargo
i. Not only from the general doctrines of  the right to contribution by way of
admiralty jurisprudence but from the general average in case of jettison, was
provisions of the Code of Commerce first made in the days of sailing vessels;

ii. captain is primarily the representative of and with the advent of the steamship as
the owner; and article 586 of the Code of the principal conveyer of cargo by sea, it
Commerce expressly declares that both has been felt that the reason for the rule
the owner of the vessel and the naviero, has become less weighty, especially with
or charterer, shall be civil liable for the reference to coastwise trade; and it is
acts of the master now generally held that jettisoned goods
carried on deck, according to the custom
iii. the owner of the vessel is civilly liable for the of trade, by steam vessels navigating
acts of the captain; and he can only escape coastwise and inland waters, are entitled
from this civil liability by abandoning his to contribution as a general average loss
property in the ship and any freight that he (24 R. C. L., 1419).
may have earned on the voyage (arts. 587,
588, Code of Comm.).

It is sufficient to say that the captain is required to take

the necessary steps to effect the adjustment, liquidation,
and distribution of the general average.

In the case before us the captain of the vessel did not take
those steps; and we are of the opinion that the failure of
 permitted under such conditions as are
practically possible, even if not altogether
 Recognition is given to this idea in two different articles ideal.
in the Spanish Code of Commerce.
 From what has been said it is evident that the loss
 In the first it is in effect declared that, of this petroleum is a general and not a special
average,
1. if the marine ordinances allow cargo to
the laden on deck in coastwise
navigation,  Who is the person, or persons, who are liable to
 the damages suffered by such make good this loss, and what are the conditions
merchandise shall not be dealt with under which the action can be maintained?
as particular average (art. 809 [3],
Comm. Code); and  That the owner of the ship is a person to whom the
plaintiff in this case may immediately look for
 in the other it is stated that reimbursement to the extent above stated is deducible
not only from the general doctrines of admiralty
jurisprudence but from the provisions of the Code of
2. merchandise laden on the upper deck of
Commerce applicable to the case.
the vessel shall contribute in the general
average if it should be saved;
 It is universally recognized that the captain is
primarily the representative of the owner; and
 but that there shall be no right to
article 586 of the Code of Commerce expressly
indemnity if it should be lost by reason of
declares that both the owner of the vessel and the
being jettisoned for the general safety,
naviero, or charterer, shall be civil liable for the
acts of the master.
except when the marine ordinances allow
its shipment in this manner in coastwise  In this connection, it may be noted that there is a
navigation (art. 855, Comm. Code). discrepancy between the meaning of naviero, in
articles 586 of the Code of Commerce, where the
word is used in contradistinction to the term
"owner of the vessel" ( propietario), and in article
The Marine Regulations now 587 where it is used alone, and apparently in a
sense broad enough to include the owner.
1. in force in these Islands contain provisions
recognizing the right of vessels engaged in
 NAVIERO Fundamentally the word "naviero" must
the interisland trade to carry deck cargo;
be understood to refer to the person undertaking
the voyage, who in one case may be the owner and
2. and express provision is made as to the manner in in another the charterer.
which it shall be bestowed and protected from the
elements (Phil. Mar. Reg. [1913], par 23).
 But this is not vital to the present discussion.

 Indeed, there is one commodity, namely,

gasoline, which from its inflammable nature is not The real point to which we direct attention is that,
permitted to be carried in the hold of any by the express provision of the Code, the owner of
passenger vessel, the vessel is civilly liable for the acts of the
captain; and he can only escape from this civil
though it may be carried on the deck if certain liability by abandoning his property in the ship and
precautions are taken. any freight that he may have earned on the voyage
(arts. 587, 588, Code of Comm.).
There is no express provision declaring that
petroleum shall be carried on deck in any case; but
having regard to its inflammable nature and the known
practices of the interisland boats, it cannot be denied  Now, by article 852 of the Code of
that this commodity also, as well as gasoline, may be Commerce
lawfully carried on deck in our coatwise trade.
 the captain is required to initiate the proceedings
for the adjustment, liquidation, and distribution of
 The reason for adopting a more liberal rule with any gross average to which the circumstances of
respect to deck cargo on vessels used in the coastwise the voyage may have given origin;
trade than upon those used for ordinary ocean borne
traffic is to be found of course in the circumstance that  and it is therefore his duty to take the proper steps
to protect any shipper whose goods may have been
 in the coastwise trade the boats are small and jettisoned for the general safety.
voyages are short,
 In ordinary practice this, we supposed, would be
 with the result that the coasting vessel can primarily accomplished by requiring the consignees
use more circumspection about the condition of other cargo, as a condition precedent to the
of the weather at the time of departure; delivery of their goods to them, to give a sufficient
bond to respond for their proportion of the general
 and if threatening weather arises, she can average.
often reach a port of safety before disaster
overtakes her.  But it is not necessary here to inquire into details.

 Another consideration is that the coastwise It is sufficient to say that the captain is required to take the
trade must as a matter of public policy be necessary steps to effect the adjustment, liquidation, and
encouraged, and domestic traffic must be distribution of the general average.
  The evident intention of the Code, taken in all of its
In the case before us the captain of the vessel did not take provisions, is to place the primary liability upon
those steps; and we are of the opinion that the failure of the the person who has actual control over the
captain to take those steps gave rise to a liability for which conduct of the voyage and who has most
the owner of the ship must answer. capital embarked in the venture, namely, the
owner of the ship, leaving him to obtain
recourse, as it is very easy to do, from other
 CONTENTION OF THE individuals who have been drawn into the
DEFENDANTS, venture as shippers.

 as owner of the ship, should only be held liable for  It results that the plaintiff is entitled to recover in this
his proportion of the general average. It is also action; and the only additional point to be inquired into
suggested that if the plaintiff has any right of action at is the amount that should be awarded. In this
all upon the state of facts here presented, it is connection it appears that the total value of the
against the captain, who has been delinquent in jettisoned cargo, belonging partly to the plaintiff to
performing the duty which the law imposes on another shipper, was P880.35, of which P719.95
him. represented the value of the plaintiff's petroleum. Upon
the apportionment of this total loss among the different
 This argument involves, we think, a misconception interests involved, to wit, value of ship, value of cargo,
of the true import of the provisions relating to the and the earned but lost freight, it appears that the
adjustment and liquidation of general average. amount of the loss apportionable to the plaintiff is
P11.28. Deducting this from the value of the petroleum,
 Clearly, for one thing, those provisions are we have as a result, the amount of P708.67, which is
intended to supply the shipowner, acting of cause the amount for which judgment should be given.
in the person of the captain, with a means whereby
he may escape bearing the entire burden of the  Accordingly, modifying the judgment appealed from to
loss and may distribute it among all the persons this extent, we affirm the same, with costs. So ordered.
who ought to participate in sharing it; but the
making of the liquidation is not a condition
precedent to the liability of the shipowner of the
shipper whose property has been jettisoned.

 It is true that if the captain does not comply with the

article relating to the adjustment, liquidation, and
distribution of the general average, the next article
(852) gives to those concerned — whether shipowner
(naviero) or shipper — the right to maintain an action
against the captain for indemnification for the loss; but
the recognition of this right of action does not by any
means involve the suppression of the right of action
which is elsewhere recognized in the shipper against the
ship's owner.

 The shipper may in our opinion go at once upon
the owner and the latter, if so minded, may have
his recourse for indemnization against his captain.

 In considering the question now before us it is important

to remember that

 the owner of the ship ordinarily has vastly

more capital embarked upon a voyage than
has any individual shipper of cargo.

 Moreover, the owner of the ship, in the

person of the captain, has complete and
exclusive control of the crew and of the
navigation of the ship, as well as of the
disposition of the cargo at the end of the
voyage.

 It is therefore proper that any person whose

property may have been cast overboard by
order of the captain should have a right of
action directly against the ship's owner for
the breach of any duty which the law may
have imposed on the captain with respect to
such cargo.

 To adopt the interpretation of the law for which the

appellant contends would place the shipowner in a
position to escape all responsibility for a general
average of this character by means of the
delinquency of his own captain. This cannot be
permitted.
Arrival Under Stress Arts. 819 - Collision; is a private institution of Maritime Law
that regulates the rights, obligations and
821 responsibilities of those involved in the harm and
damage caused by the collision of vessels.
ARTICLE 819. If the captain during the
navigation should believe that the vessel can not Fault of one party
continue the voyage to the port of destination on
account of the lack of provisions, well founded
If the collision occurs due to the fault of one of
fear of seizure, privateers or pirates, or by
the vessels or its crew, the party at fault is liable
reason of any accident of the sea disabling her to
for the damages. The most important feature of
navigate, he shall assemble the officers and shall
the faulty collision is that it is the result of an
call the persons interested in the cargo who may
unnecessary or improper action.
be present, and who may attend the meeting
without the right to vote; and if, after examining
the circumstances of the case, the reasons A Mutual Fault Collision
should be considered well founded, it shall be
decided to make the nearest and most If the collision occurs due to two or more vessels
convenient port drafting and entering in the log or their crew being at fault, the liability of each
book the proper minutes, which shall be signed vessel is in proportion to the degree of the faults
by all. respectively committed.

The captain shall have the deciding vote and the Fault of Pilot Boats
persons interested in the cargo may make the
objections and protests they may deem proper, In the case of the vessel is guided by compulsory
which shall be entered in the minutes in order consulting pilot or an optional pilot, the
that they may make use thereof in the manner Shipowner shall be responsible of the Pilot’s fault
they may consider advisable. or negligence. However, The Shipowner shall not
be responsible in case of the collision is occurred
ARTICLE 820. The arrival under stress shall not as a result of the fault of a mandatory
be considered legal in the following cases: forwarding/drying pilot.

1. If the lack of provisions should arise from the Liability of Master in Collision
failure to take the necessary provisions for the
voyage, according to usage and custom, or if
The Masters of the collided vessels are obliged to
they should have been rendered useless or lost make every possible precaution in order to
through bad stowage or negligence in their care.
prevent or reduce the damage of the vessels and
the people at the vessels during the collision. The
2. If the risk of enemies, privateers, or pirates
Shipowner shall not be held liable for the
should not have been well known, manifest, and damages arising from the Master’s violation of
based on positive and justifiable facts.
the obligation.
3. If the injury to the vessel should have been
Time-out of Liabilities in Collision
caused by reason of her not being repaired,
rigged, equipped, and arranged in a convenient
manner for the voyage, or by reason of some Any kind of damage claim based on the collision
erroneous order of the captain. has the 2 years time-limit from the collision.
According to the article 1297 of Turkish
4. Whenever malice, negligence, want of Commercial Code, recourse right of Shipowners
foresight, or lack of skill on the part of the against each other is subjected for 1 year time-
captain is the reason for the act causing the limit.
damage.
Criminal Liabilities after Collision
ARTICLE 821. The expenses caused by the arrival
under stress shall always be for the account of It is a criminal offense to cause a faulty collision
the shipowner or agent, but the latter shall not and not to take the necessary precautions to
be liable for the damage which may be caused prevent or reduce the damage in collision:
the shippers by reason of the arrival under
stress, provided the latter is legitimate. 1. According to Article 179 and 180 of the
Turkish Criminal Code; to cause a sinking
Otherwise, the shipowner or agent and the or a sea accident by imprudence,
captain shall be jointly liable. inattention, inexperience is offense.
 2. It is a criminal offense not fulfill the
obligation to provide information after the
conflict, to register in the logbook, and to
submit the copy of the report to the port
authority

 Applicable Law on Collision

Collision in terms of criminal law

Collusion acts occurred in Turkish territorial
waters are considered within the scope of public
order. For this reason, the Turkish law is applied
since the Turkish judicial organs are authorized
in terms of criminal law.

Collision in terms of private law

 If the collision occurs between

Turkish and Foreign ships;

1. If the foreign flag vessel belongs a

participated state of 1910 Brussels
Convention 1910, the legal disputes in the
collision shall be solved in accordance
with the 1910 Brussels Convention.
2. If the foreign flag vessel belongs to a
state that had not sign the 1910 Brussels
Convention, the Turkish law shall be
applied in those circumstances.

 If the collision occurs between the

foreign flag ships;

First of all, foreign ships are completely free to

apply to Turkish judicial organs. If they choose
Turkish judicial organs to settle the dispute,

1. If the states to which the foreign vessels

belong are the participant of 1910
Brussels Convention, they can settle their
disputes in Turkish judicial organs by
applying Convention provisions.
2. In the case of one or both States of the
collided vessels are not participant of the
Convention, the Turkish law shall be
applied.

SECTION III Collisions

ARTICLE 826. If a vessel should collide with another through

the fault, negligence, or lack of skill of the captain, sailing
mate, or any other member of the complement, the owner of
the vessel at fault shall indemnify the losses and damages
suffered, after an expert appraisal.

.
 absolutely exhausted, he probably was either dozing or
Gov't. v Philippine Steamship Co. & inattentive to duty at the time the other vessel approached.
Fernandez Hermanos, GR No. 18957
It results, as already stated, that both vessels were at fault;
and although the negligence on the part of the mate of the
STREET, J.:
incoming vessel preceded the negligence on the part of the
mate of the outgoing vessel by an appreciable interval of
In this action the Government of the Philippine Islands seeks
time, the first vessel cannot on that account be absolved
to recover the sum of P14,648.25, the alleged value of 911
from responsibility. Indeed, in G. Urrutia & Co. vs. Baco River
sacks of rice which were lost at sea on February 11, 1920, as
Plantation Co., supra, this court found reason for holding that
a result of a collision between the steamer Antipolo, owned
the responsibility rested exclusively on a steamer which had
by the defendant company, and the vessel Isabel, upon which
allowed dangerous proximity to a sailing vessel to be brought
said rice was embarked. In the Court of First Instance
about under somewhat similar conditions.
judgment was entered for the recovery by the plaintiff from
the Philippine Steamship Company, Inc., of the full amount
We are of the opinion therefore that his Honor, the trial
claimed, with interest from the date of the filing of the
judge, committed no error in holding that both vessels were
complaint. From this judgment said company appealed.
to blame and in applying article 827 of the Code of
Commerce to the situation before him. It is there declared
It appears in evidence that at about 10 o'clock at night on
that where both vessels are to blame, both shall be solidarily
February 10, 1920, the coastwise Isabel, equipped with
responsible for the damage occasioned to their cargoes. As
motor and sails, left the port of Manila with primary
the Isabel was a total loss and cannot sustain any part of this
destination to Balayan, Batangas, carrying, among its cargo,
liability, the burden of responding to the Government of the
911 sacks of rice belonging to the plaintiff and consigned to
Philippine Islands, as owner of the rice embarked on the
points in the south. After the boat had been under weigh for
Isabel, must fall wholly upon the owner of the other ship, that
about four hours, and has passed the San Nicolas Light near
is, upon the defendant, the Philippine Steamship Company,
the entrance into Manila Bay, the watch and the mate on the
Inc.
bridge of the Isabel discerned the light of another vessel,
which proved to be the Antipolo, also a coastwise vessel, on
Only one observation will be added, in response to one of the
its way to Manila and coming towards the Isabel. At about the
contentions of the appellant's attorneys, which is, that the
same time both the watch and mate on the bridge of the
application of article 827 of the Code of Commerce is not
Antipolo also saw the Isabel, the two vessels being then
limited by article 828 to the case where it cannot be
about one mile and a half or two miles apart. Each vessel was
determined which of the two vessels was the cause of the
going approximately at the speed of 6 miles an hour, and in
collision. On the contrary article 828 must be considered as
about ten minutes they had together traversed the
an extension of article combined the rule of liability
intervening space and were in close proximity to each other.
announced in article 827 is applicable not only to the case
where both vessels may be shown to be actually blameworthy
When the mate of the Antipolo, who was then at the wheel,
but also to the case where it is obvious that only one was at
awoke to the danger of the situation and saw the Isabel
fault but the proof does not show which.
"almost on top of him," to use the words of the committee on
marine accidents reporting the incident, he put his helm hard
The judgment appealed from must be affirmed; and it is so
to the starboard.
ordered with costs against the appellant.
This maneuver was correct, and if the helmsman of the Isabel
had done likewise, all would apparently have been well, as in
that event the two vessels should have passed near to each
other on the port side without colliding. As chance would
have it, however, the mate on the Isabel at this critical
juncture lost his wits and, in disregard of the regulations and
of common prudence, at once placed his own helm hard to
port, with the result that his boat veered around directly in
the path of the other vessel and a collision became inevitable.
Upon this the mate on the Antipolo fortunately stopped his
engines, but the Isabel continued with full speed ahead, and
the two vessels came together near the bows. The Isabel
immediately sank, with total loss of vessel and cargo, though
the members of her crew were picked up from the water and
saved.

The trial judge was in our opinion entirely right in finding that
negligence was imputable to both vessels, though differing
somewhat in character and decree with respect to each. The
mate of the Antipolo was clearly negligent in having
permitted that vessel to approach directly towards the Isabel
until the two were in dangerous proximity. For this there was
no excuse whatever, since the navigable sea at this point is
wide and the incoming steamer could easily have given the
outgoing vessel a wide berth. On the other hand it is not
clear that the Isabel was chargeable with negligence in
keeping on its course; for this boat had its jib sail hoisted,
and may for that reason be considered to have had the right
of way. (G. Urrutia & Co. vs. Baco River Plantation Co., 26
Phil., 632.)

Negligence shortly preceding the moment of collision is,

however, undoubtedly chargeable to the Isabel, for the
incorrect and incompetent way in which this vessel was then
handled. The explanation of this may perhaps be found in the
fact that the mate on the Isabel had been on continuous duty
during the whole preceding day and night; and being almost
Williams v Yangco, GR No. L-8325 found by the trail judge, that "both vessels may be blamed
for the collision," each one must be held may be blamed for it
own damages, and the owner of neither one can recover from
The steamer Subic, owned by the defendant, collided with the the other in an action for damages to his vessel.
lunch Euclid owned by the plaintiff, in the Bay of Manila at an
early hour on the morning of January 9, 1911, and
the Euclid sank five minutes thereafter. This action was Counsel for the plaintiff, basing his contention upon the
brought to recover the value of the Euclid. theory of the facts as contended for by him, insisted that
under he doctrine of "the last clear chance," the defendant
should be held liable because, as he insists, even if the
The court below held from the evidence submitted that officers on board the plaintiff's launch were negligence in
the Euclid was worth at a fair valuation P10,000; that both failing to exhibit proper lights and in failing to take the proper
vessels were responsible for the collision; and that the loss steps to keep out of the path of the defendant's vessel,
should be divided equally between the respective owners, nevertheless the officers on defendant's vessel, by the
P5,000 to be paid the plaintiff by the defendant, and P5,000 exercise of due precautions might have avoided the collision
to be borne by the plaintiff himself. From this judgment both by a very simple manuever. But it is sufficient answer to this
defendant and plaintiff appealed. contention to point out that the rule of liability in this
jurisdiction for maritime accidents such as that now under
After a careful review of all the evidence of record we are all consideration is clearly, definitely, and unequivocally laid
agreed with the trial judge in his holding that the responsible down in the above-cited article 827 of the Code of
officers on both vessels were negligent in the performance of Commerce; and under that rule, the evidence disclosing that
their duties at the time when the accident occurred, and that both vessels were blameworthy, the owners of either can
both vessels were to blame for the collision. We do not deem successfully maintain an action against the other for the loss
it necessary to review the conflicting testimony of the or injury of his vessel.
witnesses called by both parties, the trial also having inserted
in his opinion a careful and critical summary and analysis of In cases of a disaster arising from the mutual negligence of
the testimony submitted to him, which, to our minds, fully two parties, the party who has a last clear opportunity of
and satisfactorily disposes of the evidence are set forth in the avoiding the accident, notwithstanding the negligence of his
following language (translated): opponent, is considered wholly responsible for it under the
common-law rule of liability as applied in the courts of
In view of the negligence of which the patron Millonario (of common law of the United States. But this rule (which is not
defendant's vessel) has been guilty as well as that imputable recognized in the courts of admiralty in the United States,
to the patron of the launch Euclid, both contributed in a wherein the loss is divided in cases of mutual and concurring
decided manner and beyond all doubt to the occurrence of negligence, as also where the error of one vessel has exposed
the accident and the consequent damages resulting her to danger of collision which was consummated by he
therefrom in the loss of the launch Euclid. further rule, that where the previous application by the
further rule, that where the previous act of negligence of one
vessel has created a position of danger, the other vessel is
With a little diligence which either of the two patrons might not necessarily liable for the mere failure to recognize the
have practiced under the circumstances existing at the time perilous situation; and it is only when in fact it does discover
of the collision, if both had not been so distracted and so it in time to avoid the casualty by the use of ordinary care,
negligent in the fulfillment of their respective duties, the that it becomes liable for the failure to make use of this last
disaster could have been easily avoided, since the sea was clear opportunity to avoid the accident. (See cases cited in
free of obstacles and the night one which permitted the Notes, 7 Cyc., pp. 311, 312, 313.) So, under the English rule
patron Millonario to distinguish the hull of the launch twenty which conforms very nearly to the common-law rule as
minutes before the latter entered upon his path . . . applied in the American courts, it has been held that the fault
of the first vessel in failing to exhibit proper lights or to take
There is proven, therefore, the negligence of which the the proper side of the channel will relieve from liability one
patron of the Euclid has been guilty. who negligently runs into such vessels before he sees it;
although it will not be a defense to one who, having timely
warning of the danger of collision, fails to use proper care to
If the negligence by which the patron of the launch Euclid has
avoid it. (Pollock on Torts, 374.) In the case at bar, the most
contributed to the cause of the accident and to the resulting
that can be said in support of plaintiff's contention is that
damages is patent, none the less so is the negligence of the
there was negligence on the part of the officers on
patron of the steamer Subic, Hilarion Millonario by name, as
defendant's vessel in failing to recognize the perilous
may be seen from his own testimony which is here copied for
situation created by the negligence of those in charge of
the better appreciation thereof.
plaintiff's launch, and that had they recognized it in time,
they might have avoided the accident. But since it does not
It will be seen that the trial judge was of opinion that the appear from the evidence that they did, in fact, discover the
vessels were jointly liable for the loss resulting from the perilous situation of the launch in time to avoid the accident
sinking of the launch. But actions for damages resulting from by the exercise of ordinary care, it is very clear that under
maritime collisions are governed in this jurisdiction by the the above set out limitation to the rule, the plaintiff cannot
provisions of section 3, title 4, Book III of the Code of escape the legal consequences of the contributory negligence
Commerce, and among these provisions we find the of his launch, even were we to hold that the doctrine is
following: applicable in the jurisdiction, upon which point we expressly
reserve our decision at this time.
ART. 827. If both vessels may be blamed for the collision,
each one shall be liable for its own damages, and both shall The judgment of the court below in favor of the plaintiff and
be jointly responsible for the loss and damages suffered by against the defendant should be reserved, and the plaintiff's
their cargoes. complaint should be dismissed without day, without costs to
either party in this instance. So ordered.
In disposing of this case the trial judge apparently had in
mind that portion of the section which treats of the joint
liability of both vessels for loss or damages suffered by their
cargoes. In the case at bar, however, the only loss incurred
was that of the launch Euclid itself, which went to the bottom
soon after the collision. Manifestly, under the plain terms of
the statute, since the evidence of record clearly discloses, as
Manila Steamship v Abdulhaman, GR family in the selection of its employees, particularly Third
Mate Simplicio Ilagan, the officer in command of its vessels,
No. L-9534 the M/S “Bowline Knot”, at the time of the collision. This
defense is untenable. While it is true that Plaintiff’s action
against Petitioner is based on a tort or quasi-delict, the tort in
This case was begun in the Court of First Instance of question is not a civil tort under the Civil Code but a maritime
Zamboanga (Civil Case No. 170) by Insa Abdulhaman against tort resulting in a collision at sea, governed by Articles 826-
the Manila Steamship Co., owner of the M/S “Bowline Knot”, 939 of the Code of Commerce. Under Article 827 of the Code
and Lim Hong To, owner of the M/L “Consuelo V”, to recover of Commerce, in case of collision between two vessels
damages for the death of his (Plaintiff’s) five children and loss imputable to both of them, each vessel shall suffer her own
of personal properties on board the M/L “Consuelo V” as a damage and both shall be solidarily liable for the damages
result of a maritime collision between said vessel and the M/S occasioned to their cargoes. The characteristic language of
“Bowline Knot” on May 4, 1948, a few kilometers distant from the law in making the “vessels” solidarily liable for the
San Ramon Beach, Zamboanga City. damages due to the maritime collision emphasizes the direct
On appeal, the Court of Appeals found the following facts to nature of the responsibilities on account of the collision
have been established:chanroblesvirtuallawlibrary incurred by the shipowner under maritime law, as
distinguished from the civil law and mercantile law in general.
“From 7:chanroblesvirtuallawlibrary00 to This direct responsibility is recognized in Article 618 of the
8:chanroblesvirtuallawlibrary00 o’clock in the evening of May Code of Commerce under which the captain shall be civilly
4, 1948, the M/L “Consuelo V”, laden with cargoes and liable to the ship agent, and the latter is the one liable to
passengers left the port of Zamboanga City bound for Siokon third persons, as pointed out in the collision case of Yueng
under the command of Faustino Macrohon. She was then Sheng Exchange & Trading Co. vs. Urrutia & Co., 12 Phil.
towing a kumpit, named “Sta. Maria Bay”. The weather was 747, 753:chanroblesvirtuallawlibrary
good and fair. Among her passengers were the Plaintiff Insa
Abdulhaman, his wife Carimla Mora and their five children “The responsibility involved in the present action is that
already mentioned. The Plaintiff and his wife paid their fare derived from the management of the vessel, which was
before the voyage started. defective on account of lack of skill, negligence, or fault,
either of the captain or of the crew, for which the captain is
On that same night the M/S “Bowline Knot” was navigating responsible to the agent, who in his turn is responsible to the
from Maribojoc towards Zamboanga. third party prejudiced or damaged. (Article 618, Code of
Commerce).”
Between 9:chanroblesvirtuallawlibrary30 to
10:chanroblesvirtuallawlibrary00 in the evening the dark In fact, it is a general principle, well established maritime law
clouds bloated with rain began to fall and the gushing strong and custom, that shipowners and ship agents are civilly liable
wind began to blow steadily harder, lashing the waves into a for the acts of the captain (Code of Commerce, Article 586)
choppy and roaring sea. Such weather lasted for about an and for the indemnities due the third persons (Article
hour and then it became fair although it was showering and 587); chan roblesvirtualawlibraryso that injured parties may
the visibility was good enough. immediately look for reimbursement to the owner of the ship,
it being universally recognized that the ship master or captain
When some of the passengers of the M/L “Consuelo V” were
is primarily the representative of the owner (Standard Oil Co.
then sleeping and some were lying down awake, all of a
vs. Lopez Castelo, 42 Phil. 256, 260). This direct liability,
sudden they felt the shocking collision of the M/L “Consuelo
moderated and limited by the owner’s right of abandonment
V” and a big motorship, which later on was identified as the
of the vessel and earned freight (Article 587), has been
M/V “Bowline Knot”.
declared to exist, not only in case of breached contracts, but
Because the M/L “Consuelo V” capsized, her crew and also in cases of tortious negligence (Yu Biao Sontua vs.
passengers, before realizing what had happened, found Osorio, 43 Phil. 511, 515):chanroblesvirtuallawlibrary
themselves swimming and floating on the crest of the waves
“In the second assignment of error, the Appellant contends
and as a result of which nine (9) passengers were dead and
that the Defendant ought not to be held liable for the
missing and all the cargoes carried on said boat, including
negligence of his agents and employees.
those of the Plaintiff as appear in the list, Exhibit “A”, were
also lost. It is proven that the agents and employees, through whose
negligence the explosion and fire in question occurred, were
Among the dead passengers found were Maria, Amlasa,
agents, employees and mandatories of the Defendant. Where
Bidoaya and Bidalla, all surnamed Inasa, while the body of
the vessel is one of freight, a public concern or public utility,
the child Abdula Inasa of 6 years of age was never recovered.
its owner or agents is liable for the tortious acts of his agents
Before the collision, none of the passengers were warned or
(Articles 587, 613, and 618 Code of Commerce; chan
informed of the impending danger as the collision was so
roblesvirtualawlibraryand Article 1902, 1903, 1908, Civil
sudden and unexpected. All those rescued at sea were
Code). This principle has been repeatedly upheld in various
brought by the M/V “Bowline Knot” to Zamboanga City.”
decisions of this court.
(Decision of C. A., pp. 5-6).
The doctrines cited by the Appellant in support of his theory
As the cause of the collision, the Court of Appeals affirmed
have reference to the relations between principal and agent
the findings of the Board of Marine Inquiry, that the
in general, but not to the relations between ship agent and
commanding officer of the colliding vessels had both been
his agents and employees; chan roblesvirtualawlibraryfor this
negligent in operating their respective vessels. Wherefore,
reason they cannot be applied in the present case.”
the Court held the owners of both vessels solidarily liable
to Plaintiff for the damages caused to him by the collision, It is easy to see that to admit the defense of due diligence of
under Article 827 of the Code of Commerce; chan a bonus paterfamilias (in the selection and vigilance of the
roblesvirtualawlibrarybut exempted Defendant Lim Hong To officers and crew) as exempting the shipowner from any
from liability by reason of the sinking and total loss of his liability for their faults, would render nugatory the solidary
vessel, the M/L “Consuelo V”, while the other Defendant, the liability established by Article 827 of the Code of Commerce
Manila Steamship Co., owner of the M/S “Bowline Knot”, was for the greater protection of injured parties. Shipowners
ordered to pay all of Plaintiff’s damages in the amount of would be able to escape liability in practically every case,
P20,784.00 plus one-half of the costs. It is from this considering that the qualifications and licensing of ship
judgment that Defendant Manila Steamship Co. had appealed masters and officers are determined by the State, and that
to this Court. vigilance is practically impossible to exercise over officers and
crew of vessels at sea. To compel the parties prejudiced to
Petitioner Manila Steamship Co. pleads that it is exempt from
look to the crew for indemnity and redress would be an
any liability to Plaintiff under Article 1903 of the Civil Code
illusory remedy for almost always its members are, from
because it had exercised the diligence of a good father of a
captains down, mere wage earners.
We, therefore, find no reversible error in the refusal of the average is due to shipowner’s own fault. Fariña (Derecho
Court of Appeals to consider the defense of the Manila Comercial Maritimo, Vol. I, pp. 122-123), on the authority of
Steamship Co., that it is exempt from liability for the collision judicial precedents from various nations, sets the rule to be
with the M/L “Consuelo V” due to absence of negligence on its as follows:chanroblesvirtuallawlibrary
parts in the selection and supervision of the officers and crew
of the M/S “Bowline Knot”. “Esta generalmente admitido que el propietario del buque no
tiene derecho a la limitacion legal de responsibilidad si los
The case of Walter S. Smith & Co. vs. Cadwallader Gibson daños o averias que dan origen a la limitacion provienen de
Lumber Co., 55 Phil. 517, invoked by Petitioner, is not the sus propias culpas. El Convenio de Bruselas de 25 de agosto
point. Said case treated of a civil tort, in that the vessel of de 1924 tambien invalida la limitacion en el caso de culpa
the Defendant, allegedly negligently managed by its captain personal en los accidentes o averías sobrevenidos (Art. 2°).”
in the course of its maneuvers to moor at Plaintiff’s wharf,
struck the same and partially demolished it, causing damage To the same effect, a noted French author
to Plaintiff. Because the tort allegedly committed was civil, states:chanroblesvirtuallawlibrary
the provisions of Article 1903 of the Civil Code were correctly “La limitacion de la responsabilidad maritima ha sido admitida
applied. The present case, on the other hand, involves para proteger a los armadores contra los actos abusivos de
tortious conduct resulting in a maritime collision; chan sus encargados y no dejar su patrimonio entero a la
wherefore, the liability of the shipowner is, as already stated, discrecion del personal de sus buques, porque este personal
governed by the provisions of the Code of Commerce and not cumple sus obligaciones en condiciones especiales; chan
by the Civil Code. roblesvirtualawlibrarypero los armadores no tienen por sobre
los demas derecho a ser amparados contra ellos mismos ni a
We agree, however, with Petitioner-Appellant, that the Court ser protegidos contra sus propios actos.”
of Appeals was in error in declaring the Respondent Lim Hong
To, owner of the M/L “Consuelo V”, exempt from liability to (Danjon, Derecho Maritimo, Vol. 2, p. 332). (Emphasis
the original Plaintiff, Abdulhaman, in view of the total loss of supplied.)
his own vessel, that sank as a result of the collision. It is to That Lim Hong To understood that he would incur greater
be noted that both the master and the engineer of the motor liability than that normally borne by shipowners, is clear from
launch “Consuelo V” were not duly licensed as such (Exh. 2). his assumption of “ full” risk and responsibility for all the
In applying for permission to operate, despite the lack of consequences” of the operation of the M/L “Consuelo V”; cha
properly trained and experienced, crew, Respondent Lim responsibility expressly assumed in his letter Exhibit 2, and
Hong To gave as a reason — imposed in his special permit, in addition to the vessel itself
“that the income derived from the vessel is insufficient to pay being held answerable. This express assumption of “full risk
licensed officers who demand high salaries”, and responsibility” would be meaningless unless intended to
broaden the liability of Respondent Lim Hong To beyond the
and expressly declared:chanroblesvirtuallawlibrary value of his vessel.
“That in case of any accident, damage or loss, I shall assume In resume, we hold:chanroblesvirtuallawlibrary
full risk and responsibility for all the consequences thereof.”
(Exhibit 2). (1)  That the Manila Steamship Co., owner of the M/S
“Bowline Knot”, is directly and primarily responsible in tort for
His permit to operate, in fact, stipulated — the injuries caused to the Plaintiff by the collision of said
vessel with the launch “Consuelo V”, through the negligence
“that in case of any accident, damage or loss, the registered of the crews of both vessels, and it may not escape liability
owner thereof shall assume full risk and responsibility for all on the ground that it exercised due diligence in the selection
the consequences thereof, and that said vessel shall be held and supervision of the officers and crew of the “Bowline
answerable for any negligence, disregard or violation of any Knot”;
of the conditions herein imposed and for any consequence
arising from such negligence, disregard or violations.” (2)  That Lim Hong To, as owner of the motor launch
(Exhibit 3.) “Consuelo V”, having caused the same to sail without licensed
officers, is liable for the injuries caused by the collision over
The Court of Appeals held that neither the letter (Exhibit 2) and beyond the value of said launch;
nor the permit (Exhibit 3) contained any waiver of the right
of Respondent Lim Hong To to limit his liability to the value of (3)  That both vessels being at fault, the liability of Lim Hong
his motor launch and that he did not lose the statutory right To and Manila Steamship Co. to the Plaintiff herein is in
to limit his liability by abandonment of the vessel, as solidum, as prescribed by Article 827 of the Code of
conferred by Article 587 of the Code of Commerce. Commerce.
We find the ruling untenable. Disregarding the question In view of the foregoing, the decision of the Court of Appeals
whether mere inability to meet the salary demands of duly is modified, and that of the Court of First Instance affirmed,
licensed masters and engineers constitutes non-availability in the sense of declaring both original Defendants solidarily
thereof that would excuse noncompliance with the law and liable to Plaintiff Insa Abdulhaman in the sum of P20,784.00
authorize operation without licensed officers under Act 3553, and the cost of the litigation, without prejudice to the right of
the fact remains that by operating with an unlicensed master, the one who should pay the judgment in full to demand
Lim Hong To deliberately increased the risk to which the contribution from his co-Defendant.
passengers and shippers of cargo aboard the “Consuelo V”
would be subjected. In his desire to reap greater benefits in
the maritime trade, Lim Hong To willfully augmented the
dangers and hazards to his vessel’s unwarry passengers, who
would normally assume that the launch officers possessed the
necessary skill and experience to evade the perils of the sea.
Hence, the liability of said Respondent cannot be the identical
to that of a shipowner who bears in mind the safety of the
passengers and cargo by employing duly licensed officers. To
hold, as the Court of Appeals has done, that Lim Hong To
may limit his liability to the value of his vessels, is to erase all
difference between compliance with law and the deliberate
disregard thereof. To such proposition we cannot assent.
The international rule is to the effect that the right of
abandonment of vessels, as a legal limitation of a shipowner’s
liability, does not apply to cases where the injury or the
Urutia v Baco River Plantation, GR No. That the steamer Ntra. Sra. del Pilar, being bound to keep
out of the course of the sailing vessel and suddenly seeing
L-7675 the sailing vessel very close, went over hard to port and
crossed the course of the sailing vessel.

MORELAND, J.: I also find that the sailing vessel, notwithstanding the erratic
movements of the steamer, proceeded directly on its course
regardless of consequences when with all the searoom there
This action spring from a collision between the
was it could easily have maneuvered so as to very well avoid
steamship Nuestra Señora del Pilar, owned by the plaintiff,
the collision, and thereby having contributed neglect to the
and the schooner Mangyan owned by the defendant, which
collision, neither is entitled to recover from the other any
occurred in the early morning of the 8th of April, 1910, in
damages which may have occurred.
Verde Island North Passage. The sail vessel was sailing with a
fresh breeze dead astern, her sails wing and wing. The
steamer was seen by those on board the sailing vessel some These facts and circumstances clearly appear in the record
time before the actual collision, sailing erratically. The sail and fully sustain the conclusions reached.
vessel kept her course steadily until just before the actual
contact when her helmsman threw her hard to port in an We are of the opinion that under the facts stated in the
effort to avoid the collision. The movement, however, was decision of the trial court the defendant was entitled to
unsuccessful and the sail vessel rammed the steamer on the recover upon its counterclaim.
starboard quarter well aft. The steamer sank and eight lives
were lost. The sail vessel was considerably injured.
It being clear from, the evidence that the gross negligence of
those managing the steamer brought it into such close
This action was brought by the owners of the steamship proximity to the sail vessel that a collision was apparently
against the owner of the sail vessel, to recover the value of inevitable, the question is whether or not the sail vessel was
the destroyed steamer and the damages caused by reason of negligent in continuing its course without variation up to the
its destruction, alleging as a basis therefor the negligence of moment that it found itself in extremis.
the said vessel. The defendant denied the material allegations
of the complaint and set up a counterclaim for damages,
alleging as grounds therefor that the injuries sustained by the Article 20 of the International Rules for the Prevention of
said vessel were due to the gross negligence of those Collission at Sea is as follows: "If two ships, one of which is a
handling plaintiff's steamer. sailing ship and the other a steam ship, are proceeding in
such directions as to involve risk of collision, the steam ship
shall keep out of the way, of the sailing ship."
Before the action was tried, M. Garza made an application to
intervene under the provisions of section 121 of the Code of
Civil Procedure, he alleging in support of his application that Article 21 is as follows: "where by any of these rules one of
the steamer was carrying for him at the time several two vessels is to keep out of the way, the other shall keep
thousand pesos' worth of merchandise as freight, which was her course and speed."
lost as a result of the collision. He was permitted to intervene
and accordingly filed a complaint setting up the loss of this Generally speaking, in collisions between vessels there exist
merchandise and the value thereof and alleging, as the basis three divisions of time, or zones; The first division covers all
for his right to recover, the negligence of one or the other of the time up to the moment when the risk of collision may be
the vessels, without specifying which, and praying that the said to have begun. Within this zone no rule is applicable
court award him damages against the vessel the negligence because none is necessary. Each vessel is free to direct its
of which, upon the trial, was shown to have caused his loss. course as it deems best without reference to the movements
of the other vessel. The second division covers the time
The case turns upon the question which of the vessels was between the moment when the risk of collision begins and
negligent in failing to conform to the International Rules for the moment when it has become a practical certainty. The
the Prevention of Collissions at Sea. The learned trials court third division covers the time between the moment when
found that those managing the steamer were guilty of gross collision has become a practical certainty and the moment of
negligence and that for that reason the plaintiff could recover actual contact.
nothing.
It was during the time when the sail vessel was passing
An examination of the record leave no doubt that the finding through the third zone that it changed its course to port in
of the trial court that the steamer was handled in a grossly order to avoid, if possible, the collision. This act may be said
negligent manner is clearly and fully supported by the to have been done in extremis, and, even if wrong, the
evidence. No other finding could be sustained. sailing vessel is not responsible for the result.

Relative to the alleged negligence of the sail vessel the The question before us, as presented by the finding of the
learned trial court said: trial court, arises wholly over the action of the schooner in
keeping her course through the second zone, that is, during
the period when there was a risk of collision. In resolving this
I am satisfied beyond any reasonable doubt that the question we have to note the well-established presumption
steamer Ntra. Sra. del Pilar was sailing erratically, that it did which favors the sail vessel in cases of this character. The
not have a proper watch on board, and that it therefore rule relative to this presumption is conservatively stated in
contributed neglect to the collision. volume 25 of the American and English Encyclopedia of Law,
page 926:
I am thoroughly satisfied that the sailing vessel Mangyan had
its lights properly on it long before the time the collision Subject to the general rules of evidence in collision cases as
occurred, and that the lights were so arranged upon the to the burden of proof, in the case of a collision between a
rigging of the vessel as to comply with the rules, and that steam vessel and a sail vessel, the presumption is against the
they were visible and were seen by the crew of the steam vessel, and she must show that she took the proper
steamer Elcano and could have been seen by the wathcman measures to avoid a collision.
or the chief officer of the steamer Ntra. Sra. del Pilar, if they
had been on the lookout for them;
Hughes on Admiralty, page 242, declares the law thus:
A steamer must keep out of the way of a sail vessel. In doing should hold her course when in a position required to do so
so she must allow the said vessel a wide berth. . . . by the statute."

A steamer may take her own method of passing a sail vessel. On page 181 the same author says:
The mere approach of the two vessels does not bring about
risk of collision. The steamer may assume that the sail vessel
The duty of one vessel to keep her course is not intended by
will do her duty and do nothing to embarrass her. Hence the
the rules as a privilege conferred, but as an obligation
steamer may shape her course so as to avoid the sail
imposed, in order to enable the other vessel with certainty to
vessel. . . .
keep out of the way. In order to warrant a vessel to either
change her course or speed, there must be reasonable
This rule that vessels may each assume that the other will certainty that the other is not doing her duty, and that the
obey the law is one of the most important in the law of situation imperatively demands a departure from the rules. It
collision. Were it otherwise and were vessels required to take is the duty of the vessel required to keep out of the way to
all sorts of measures to keep out the way, when they are not give an early and intelligible expression of her intentions to
in each other's way, navigation would be impossible. . . . do so; and while there is any doubt as to what her actions
There is, however, one important qualification which must be will be, the vessel required to hold her course may presume
borne in mind. It is that a steamer must not approach so that the other will act intelligently and lawfully, and she
near a sailing vessel, and on such a course as to alarm a man should hold her course until the contrary appears. it is no
of ordinary skill and prudence. If the man on the sailing excuse for a vessel taking a course forbidden by law that the
vessel makes an improper manuever, he is not responsible. It unlawful course was the best one.
is what is called an "error in extremis." . . . The leading case
on the subject is The Lucille (15 Wallace, 676). In that case a
In the American and English Encyclopedia of law (vol. 25. p.
steamer and schooner were approaching on converging
925) the rules is stated as follows:
course only half a point apart, so that they would have come
within thirty yards of each other, and that in Chesapeake
Bay. The court held that this was too close and condemned But it must be a strong case which puts the sail vessels in the
the steamer." wrong for obeying the rule to hold her course, for the court
must clearly see, not only that a deviation from the rule for
would have prevented the collision, but that the officer in
On page 245 the same author says:
charge of the sail vessel was guilty of negligence or a
culpable want of seamanship in not perceiving the necessity
Article 21 . . . renders it obligatory on the vessel which has for a departure from the rule and acting accordingly. The sail
the right of way to pursue her course. . . . She must rely on vessel is justified in holding her course to the last minute
the other vessel to avoid the collision and not embarrass her possible for the steamship to avoid her by making the
by any maneuver. All she need do is to do nothing. Then the necessary maneuver.
other vessel knows to expect and navigates accordingly. . . .
In the case of St. John vs. Paine (10 How., 557), the collision
In collisions between steam and sail vessels the steamer's was between a schooner and a steamer. The schooner had no
defense is almost invariably that the sail vessel changed her lights visible; the night was starlight and clear. The court
course. reviewed the rules governing the management of sail vessel
at some length, explained the rules applicable to the
management of steam vessels, and gave the reasons why the
On page 255 of the same work appears the following:
rules which govern travelers on the highways of the sea
should be strictly enforced. After showing the greater facility
In The Clara Davidson (24 Fed. 763), the court said: "But I of manuevering which a steamer has over a sail vessel and,
do not find my self at liberty to ignore the inquiry whether a therefore, the greater ability to avoid collisions, the court
statutory rule of navigation was violated by the schooner. said:
These rules are the law of laws in cases of collision. They
admit of no option or choice. No navigator is at liberty to set
As a general rule, therefore, when meeting a sailing vessel,
up his discretion against them. If these rules were subject to
whether close hauled or with the wind free, the latter has a
the caprice or election of masters and pilots, they would be
right to keep her course, and it is the duty of the steamer to
not only useless, but worse than useless. These rules are
adopt precautions as will avoid her. (Cites cases.)
imperative. They yield to necessity, indeed, but only to actual
and obvious necessity. It is not stating the principles too
strongly to say that nothing but imperious necessity or some By an adherence to this rule on the part of the sailing vessel
overpowering his major will excuse a sail vessel in changing the steamer with a proper lookout will be enabled, when
her course when in the presence of a steamer in motion." approaching in an opposite direction, to adopt the necessary
measures to avoid the danger, and she will have a right to
assume that the sailing vessel will keep her course. If the
Spencer on Marine Collisions, page 154, says:
latter fails to do this, the fault will be attributable to her, and
the master of the steamer will be responsible only for a fair
The duties imposed upon vessels are of a mutual character; exertion of the power of his vessel to avoid the collision under
and where the statute directs one to give way to the other, it the unexpected change of the course of the other vessel, and
imposes an equal duty upon the latter to continue on its the circumstances of the case.
course, and a change of course on its part is as unlawful as it
would be for the other refuse to yield the right of way. . . .
A similar case is that of The Genesee Chief vs. Fitzhugh (12
How., 443). This pertains also to a collision between a
It is one of the conditions of the duty to keep out of the way," steamer, The Genesee Chief , and a sail vessel. The two
that the other vessel shall act intelligently, and afford watched each other for some time before the collision. The
reasonable evidence of her intention; while it is doubtful what sailing vessel kept her course until in extremis when she
the other will do, the former should hold her course. Like all made a wrong maneuver. The court said:
other rules for the prevention of collisions at sea, there may
be special circumstance which would warrant a ship in
The collision took place in the open lake. It was a starlight
departing from her course, where collision appears inevitable
night, and although there was a haze near the surface of the
by pursuing it; indeed, it is her duty to do so; but until it
lake, it was not sufficient to conceal the Cuba from those on
plainly appears that there is no other alternative, a vessel
board of the propeller. . . .
The lake was smooth. The steamboat had the entire The rule laid down in the case of The Fannie (11 Wal., 238( is
command of her course and a wide water, by which she still more applicable to the case before us. It was held that a
might have passed the Cuba on either side, and at a safe schooner meeting a steamer approaching her on a parallel
distance. She was going at the rate of eight miles an hour. line, with the difference of half a point in the course of the
And if proper care had been taken on board the two, ought to have kept in her course; that a steamer
Genesee Chief , after the schooner was first seen, it would approaching a sailing vessel is bound to keep out of her way,
seem to be almost impossible that a collision could have and allow her a free and unobsructed passage. Whatever is
happened with a vessel moving so slowly and sluggishly necessary for this it is her duty to do, and to avoid whatever
through the water even if she was carelessly or injudiciously obstructs or endangers the sailing vessel in her course. It,
managed. There was no necessity for passing so near her as therefore, the sailing vessel does not change her course so as
to create the hazard. The steamboat could choose it own to embarrass the steamer, and render it difficult for her to
distance. . . . avoid a collision, the steamer alone is answerable for the
damage of a collision, if there is one.
And the captain and crew of the Cuba appear to have been
watchful and attentive from the time the propeller was In the case of The Sea Gull (23 Wall., 165) the court said:
discovered. Nor do we deem it material to inquire whether
the order of the captain at the moment of collision was
Steamers approaching a sail ship in such a direction as to
judicious or not. He saw the steamboat coming directly upon
involve risk of collision are required to keep out of the way of
him; her speed not diminished; nor any measures taken to
the sail ship; but the sail ship is required to keep her course
avoid a collision., And if, in the excitement and alarm of the
unless the circumstances are such as to render a departure
moment, a different order might have been more fortunate, it
from the rule necessary in order to avoid immediate danger.
was the fault of the propeller to have placed him in a
situation where there was no time for thought; and she is
responsible for the consequences. She had the power to have Vessels with sails being required to keep their course, the
passed at a safer distance, and had no right to place the duty of adopting the necessary measures of precaution to
schooner in such jeopardy, that the error of a moment might keep out the way is devolved upon the steamer subject only
cause her destruction, and endanger the lives of those on to the condition that the sail ship shall keep her course and
board. And if an error was committed under such do not act to embarrass the steamer in her efforts to perform
circumstances it was not a fault. her duty. Doubtless the steamer may go to the right or left if
she can keep out of the way, but if not and the approach is
such as to involve risk of collision she is required to slacken
In the case of The Ottawa (3 Wall., 269), the court said:
her speed, or, if necessary, stop and reverse, and if she fails
to perform her duty as required by the rules of navigation she
Rules of navigation are obligatory from the time the necessity is responsible for the consequences if the sail vessel is
for precaution begins, and continue to be applicable as the without fault. . . .
vessels advance, so long as the means and opportunity to
avoid the danger remain; but they do not apply to a vessel
Attempts is made in argument to show that the schooner also
required to keep her course after the approach is so near that
was in fault and that the case falls within the rule which
the collision is inevitable, and are equally inapplicable to
requires that the damages shall be divided.
vessels of every description while they are yet so distant from
each other that measures of precaution have not become
necessary. Support to that charge is attempted to be drawn from the
assumed fact that the schooner changed her course in
violation of the rule of navigation which requires the sail ship
This case exemplifies the three zone theory already referred
to keep her course, as a correlative duty to that of the
to. In the first zone no rules apply. In the second the burden
steamer whenever the latter is required to keep out of the
is on the vessel required to keep away and avoid the danger.
way. . . .
The third zone covers the period in which errors in
extremis occur; and the rule is that the vessel which has
forced the privileged vessel into danger is responsible even if Two answers are made by the libelants to that defense, either
the privileged vessel has committed an error within that of which, if found to be true, is sufficient to exonerate the
zone. schooner: . . . (2) That the schooner made no change in her
course until the collision was inevitable, nor until it became
indispensably necessary in order to avoid immediate danger
The duty of the sailing vessel to keep her course is well
caused by the fault of the steamer. . . .
exemplified in the leading case of The Lucille vs. Respass (15
Wall., 676), which was a collision between a schooner and a
steamer. Both vessels saw each other in time to have avoided Rules of navigation continue to be applicable as long as the
the collision. The court said: means and opportunity remain to avoid the danger, but they
do not apply to a vessel required to keep her course after the
wrongful approach of the opposite vessel is so near that a
The principles of law applicable to the case are well settled.
collision is inevitable. . . .
They are not disputed by either party. In the case of The
Carrol (8 Wall., 302), it is thus laid down, "Nautical rules
require that where a steamship and sailing vessel are Nor will an error committed by the sail vessel under such
approaching each other from opposite directions, or on circumstances of peril, if she otherwise without fault, impair
intersecting lines, the steamship from the moment the sailing the right of the sail vessel to recover for the injuries
vessel is seen, shall watch with the highest diligence her occasioned by the collision, for the plain reason that those
course and movements so as to be able to adopt such timely who produced the peril and put the sail vessel in that
means of precaution as will necessarily prevent the two boats situation are chargeable with the error and must answer for
from coming in contact. Fault on the part of the sailing vessel the consequences. (Steamship Co. vs. Rumball, 21 How.,
at the moment preceeding a collision does not absolve a 383.)
steamer which has suffered herself and a sailing vessel to get
in such dangerous proximity as to cause inevitable alarm and Subject to that exceptions the sail vessel must keep her
confusion and collusion as a consequence. The steamer, as course.
having committed a far greater fault in allowing such
proximity to be brought about, is chargeable with all the
damages resulting from a collision." In the case of The Benefactor (102 U. S. 214), the court laid
down the following conclusions.:
1. Upon the steamship and schooner discovering each other extended beyond their immediate selves, and touched no
proceeding in such directions as to involve risk of collision, as third party in any of the ramifications of those rights.
stated in the foregoing findings of fact, it was the right and
duty of the schooner to keep her course, and the duty of the
The judgment of the court below, in so far as it finds against
steamship to keep out of the way of the schooner, and the
the plaintiff and the intervener, is hereby affirmed. As to that
steamship was in fault in failing to perform that duty.
portion which dismisses the counterclaim of the defendant,
the Baco River Plantation Company, the judgment is reversed
2. It was also the duty of the steamship under the and the cause remanded, with instructions to the trial court
circumstances stated, to pursue a course which should not to enter judgment in favor of the defendant, The Baco River
needlessly put the schooner in imminent peril; and the Plantation Company, and against the plaintiff, G. Urrutia &
steamship was in fault in failing to perform that duty. Company, for the sum of P4,010.99 and costs. No costs on
this appeal.
3. It was the duty of the steamship before the time when she
did so, to slacken her speed or stop, and the steamship was While it was held in the case of Philippine Shipping
in fault in failing to perform that duty. Co. vs. Vergara (6 Phil. Rep., 281), that, in accordance with
articles 837 and 826 of the Code of Commerce, the defendant
in an action such as the one at bar cannot be held responsible
4. If, when a collision had become imminent by reason of the
in damages when the ship causing the injury was wholly lost
fault of the steamship, any error was committed in
by reason of the accident, we do not apply it in this case for
extremis by those in charge of the schooner, the schooner is
the reason that the vessel lost was insured and that the
not responsible therefor.
defendant collected the insurance. That being the case, the
insurance money substitutes the vessel and must be used, so
5. The steamship had no right, under the circumstances far as necessary, to pay the judgment rendered in this case.
stated, needlessly to place herself in such close proximity to
the schooner that the error or a moment would bring
In coming to this conclusion we have not lost sight of the
destruction.
case of Place vs. Norwich and N. Y. Trans. Co. (118 U. S.,
468), in which it was held that, under the provision of the Act
6. The collision was occasioned by the fault of the steamship, of Congress relative thereto, insurance money obtained by
and the steamship should be condemned therefor. reason of the loss of a vessel causing damages, as in the case
at bar, was not subject to the payment of the damages
In the case of The Badger State (8 Fed. Rep., 526), the court sustained by the negligence of the vessel lost by reason of
said: the accident in which the damages occurred. We do not follow
that case because we are met in this jurisdiction with article
1186 of the Civil Code, which provides that "after the
Where a sailing level and one propelled by steam are obligation is extinguished by the loss of the thing, all the
approaching each other bow, on the steamer must give away, actions which the debtor may have against third persons, by
In case of a collision between such vessels, the steamer reason thereof, shall pertain to the creditor," and with article
is prima facie in fault. 2 of the Code of Commerce, which provides that where the
Code of Commerce is silent to the law relating to the matters
In the case of The Gate City (90 Fed. Rep., 314), the court of which it treats, those matters shall be governed by the
held, according to the syllabus: provisions of the Civil Code.

The rule requiring a sailing vessel meeting a steamer to hold That said article 1186 is, under the Spanish jurisprudence,
her course is a broad and general one intended to put the applicable to money obtained from the insurance of the thing
burden of avoiding a collision upon the steamer; and, if the lost or destroyed, there can be no doubt. (Manresa, vol. 8,
sailing vessel departs from the injunction the burden is on 353.)
her to show some reasonable excuse therefor.
The judgment in this case is, therefore, collectible, but the
A disregard of the rule not demanded by a clearly existing amount collected cannot exceed the amount of insurance
exigency should not be excused. money actually received.

Therefore, she will not be held in fault for adhering to her The writer of this opinion had doubts of the applicability of
course, although the steamer seems to be manuevering in an article 1186, referred to; but has yielded to the learning of
uncertain and dangerous way. the majority relative to the Roman and Spanish jurisprudence
on this point.
We are satisfied from the authorities that, under the facts
stated in the opinion of the trial court, the defendant is
entitled to recover such damages as reasonably and naturally
flowed from the collision. There is sufficient evidence in the
record to fix such damages with reasonable accuracy. It was
proved upon the trial that it would require an expenditure of
P3,525 to put the sail vessel in the condition in which it was
before the injury; that it cost 245 to get the vessel to Manila
after the injury; that the value of the supplies lost was
P240.99. The evidence relative to the loss of earnings is not
sufficient to permit the court to formulate any conclusion in
relation thereto, even if it be considered a proper item of
damage.

We think the judgment of the trial court was correct in

dismissing the complaint of intervention. The intervener had
no "legal interest in the matter in litigation, or in the success
of either of the parties, or an interest against both." Their
action was personal, involved no rights in property which
Art. 827 to 839 Code of Commerce Zones of Collision
ARTICLE 827. If both vessels may be blamed for the collision, These facts and circumstances clearly appear in the record
each one shall be liable for his own damages, and both shall and fully sustain the conclusions reached.
be jointly responsible for the losses and damages suffered by
their cargoes.
We are of the opinion that under the facts stated in the
decision of the trial court the defendant was entitled to
ARTICLE 828. The provisions of the foregoing article are
recover upon its counterclaim.
applicable to the case in which it can not be decided which of
the two vessels was the cause of the collision.
It being clear from, the evidence that the gross negligence of
ARTICLE 829. In the cases above mentioned the civil action those managing the steamer brought it into such close
of the owner against the person liable for the damage is proximity to the sail vessel that a collision was apparently
reserved, as well as the criminal liabilities which may be inevitable, the question is whether or not the sail vessel was
proper. negligent in continuing its course without variation up to the
moment that it found itself in extremis.
ARTICLE 830. If a vessel should collide with another by
reason of an accident or through force majeure, each vessel Article 20 of the International Rules for the Prevention of
and her cargo shall be liable for their own damage. Collission at Sea is as follows: "If two ships, one of which is a
sailing ship and the other a steam ship, are proceeding in
ARTICLE 831. If a vessel should be forced to collide with such directions as to involve risk of collision, the steam ship
another one by a third vessel, the owner of the third vessel shall keep out of the way, of the sailing ship."
shall indemnify for the losses and damages caused, the
captain thereof being civilly liable to said owner. Article 21 is as follows: "where by any of these rules one of
two vessels is to keep out of the way, the other shall keep
ARTICLE 832. If, by reason of a storm or other cause of force her course and speed."
majeure, a vessel which is properly anchored and moored
should collide with those in her immediate vicinity, causing
them damage, the injury occasioned shall be looked upon as Generally speaking, in collisions between vessels there exist
particular average to the vessel run into. three divisions of time, or zones; The first division covers all
the time up to the moment when the risk of collision may be
said to have begun. Within this zone no rule is applicable
ARTICLE 833. A vessel shall be presumed as lost thru a
because none is necessary. Each vessel is free to direct its
collision which, upon being run into, sinks immediately, and
course as it deems best without reference to the movements
also any vessel which is obliged to make a port to repair the
of the other vessel. The second division covers the time
damages caused by the collision should be lost during the
between the moment when the risk of collision begins and
voyage, or should be obliged to be stranded in order to be
the moment when it has become a practical certainty. The
saved.
third division covers the time between the moment when
collision has become a practical certainty and the moment of
ARTICLE 834. If the vessels colliding should have pilots on actual contact.
board discharging their duties at the time of the collision,
their presence shall not exempt the captains from the
liabilities they incur; but the latter shall have the right to be It was during the time when the sail vessel was passing
indemnified by the pilots without prejudice to the criminal through the third zone that it changed its course to port in
liability which the latter may incur. order to avoid, if possible, the collision. This act may be said
to have been done in extremis, and, even if wrong, the
ARTICLE 835. The action for the recovery of losses and sailing vessel is not responsible for the result.
damages arising from collisions can not be admitted if a
protest or declaration is not presented within twenty-four
hours to the competent authority of the point where the
collision took place, or that of the first port of arrival of the
vessel, if in Spain, * and to the consul of Spain * if it should
have occurred in a foreign country.

ARTICLE 836. In so far as the damages caused to persons or

to the cargo are concerned, the absence of a protest can not
prejudice the persons interested who were not on board or
were not in a condition to make known their wishes.

ARTICLE 837. 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 appurtenances
and all the freight earned during the voyage.

ARTICLE 838. When the value of the vessel and her

appurtenances should not be sufficient to cover all the
liabilities, the indemnity due by reason of the death or injury
of persons shall have preference.
ARTICLE 839. If the collision should occur between
Spanish *  vessels in foreign waters, or if it should take place
in open waters, and the vessels should make a foreign port,
the Spanish *  consul in said port shall hold a summary
investigation of the accident, forwarding the proceedings to
the captain-general of the nearest department *  for
continuation and conclusion