I.

TRANSPORTATION LAW
A. General Principles of Common Carriers – Civil Code, Article 1732
1. Test to Determine if Common Carrier

Article 1732. Common carriers are persons, corporations, firms or associations engaged in the
business of carrying or transporting passengers or goods or both, by land, water, or air, for
compensation, offering their services to the public.

1. Test to Determine if Common Carrier

A common carrier is one that holds itself out as ready to engage in the
transporation of goods for hire as a public employment and not as a casual
occupation.

The true test for a common carrier is not the quantity or extent of business
actually transacted, or the number and character of the conveyances used in the
activity, but whether the undertaking is a part of the activity engaged in by the
carrier that he has held out to the general public as his business or occupation.

2. Common Carrier v. Private Carriers

Common Carriers are
1. Persons, corporations , firms or associations
2. Engaged in the business of carrying or transporting passengers or
goods or both,
3. By land, water, or air,
4. For compensation,
5. Offering their services to the public

3. Diligence Required – Civil Code, Article 1733

Article 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the
safety of the passengers transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734,
1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the
passengers is further set forth in articles 1755 and 1756.

2. Common Carrier v. Private Carriers

3. Diligence Required – Civil Code, Article 1733
Article 1744. A stipulation between the common carrier and the shipper or owner limiting the
liability of the former for the loss, destruction, or deterioration of the goods to a degree less than
extraordinary diligence shall be valid, provided it be:

(1) In writing, signed by the shipper or owner;

(2) Supported by a valuable consideration other than the service rendered by the common carrier;
and

3) Reasonable, just and not contrary to public policy.

Article 1745. Any of the following or similar stipulations shall be considered unreasonable,
unjust and contrary to public policy:

(1) That the goods are transported at the risk of the owner or shipper;

(2) That the common carrier will not be liable for any loss, destruction, or deterioration of the
goods;

(3) That the common carriers need not observe any diligence in the custody of the goods;

(4) That the common carrier shall exercise a degree of diligence less than that of a good father of
a family, or of a man of ordinary prudence in the vigilance over the movables transported;

(5) That the common carrier shall not be responsible for the acts or omission of his or its
employees;

(6) That the common carrier's liability for acts committed by thieves, or of robbers who do not
act with grave or irresistible threat, violence or force, is dispensed with or diminished;

(7) That the common carrier is not responsible for the loss, destruction, or deterioration of goods
on account of the defective condition of the car, vehicle, ship, airplane or other equipment used
in the contract of carriage.

Article 1746. An agreement limiting the common carrier's liability may be annulled by the
shipper or owner if the common carrier refused to carry the goods unless the former agreed to
such stipulation.

Article 1747. If the common carrier, without just cause, delays the transportation of the goods
or changes the stipulated or usual route, the contract limiting the common carrier's liability
cannot be availed of in case of the loss, destruction, or deterioration of the goods.

Article 1748. An agreement limiting the common carrier's liability for delay on account of
strikes or riots is valid.

Article 1749. A stipulation that the common carrier's liability is limited to the value of the
goods appearing in the bill of lading, unless the shipper or owner declares a greater value, is
binding.
Article 1750. A contract fixing the sum that may be recovered. by the owner or shipper for the
loss, destruction, or deterioration of the goods is valid, if it is reasonable and just under the
circumstances, and has been fairly and freely agreed upon.

Article 1751. The fact that the common carrier has no competitor along the line or route, or a
part thereof, to which the contract refers shall be taken into consideration on the question of
whether or not a stipulation limiting the common carrier's liability is reasonable, just and in
consonance with public policy.

Article 1752. Even when there is an agreement limiting the liability of the common carrier in
the vigilance over the goods, the common carrier is disputably presumed to have been negligent
in case of their loss, destruction or [Link] 1753. The law of the country to which
the goods are to be transported shall govern the liability of the common carrier for their loss,
destruction or deterioration.

Article 1754. The provisions of articles 1733 to 1753 shall apply to the passenger's baggage
which is not in his personal custody or in that of his employee. As to other baggage, the rules in
articles 1998 and 2000 to 2003 concerning the responsibility of hotelkeepers shall be applicable.

4. Vigilance over Goods – Civil Code, Articles 1744-1754

5. Safety of Passengers – Civil Code, Articles 1755-1763

Article 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with a due regard for
all the circumstances.

Article 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755.

Article 1757. The responsibility of a common carrier for the safety of passengers as required in
articles 1733 and 1755 cannot be dispensed with or lessened by stipulation, by the posting of
notices, by statements on tickets, or otherwise.

Article 1758. When a passenger is carried gratuitously, a stipulation limiting the common
carrier's liability for negligence is valid, but not for willful acts or gross negligence. The
reduction of fare does not justify any limitation of the common carrier's liability.
Article 1759.

Common carriers are liable for the death of or injuries to passengers through the negligence or
wilful acts of the former's employees, although such employees may have acted beyond the
scope of their authority or in violation of the orders of the common carriers. This liability of the
common carriers does not cease upon proof that they exercised all the diligence of a good father
of a family in the selection and supervision of their employees.

Article 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.

Article 1761. The passenger must observe the diligence of a good father of a family to avoid
injury to himself.

Article 1762. The contributory negligence of the passenger does not bar recovery of damages for
his death or injuries, if the proximate cause thereof is the negligence of the common carrier, but
the amount of damages shall be equitably reduced.

Article 1763. A common carrier is responsible for injuries suffered by a passenger on account
of the wilful acts or negligence of other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.

6. Sources of Liability
General Rule: Common carriers cannot lawfully decline to accept a particular class of goods.

Except:

1. Goods are dangerous objects or substances including explosives;

2. Goods are unfit for transportation;
3. Acceptance would result in overloading ;
4. Contrabands or illegal goods;
5. Goods are injurious to health;
6. Goods will be exposed to untoward danger like flood, capture by enemies, and
the like ;
7. Goods like livestock will be exposed to diseases;
8. Strike ; and
9. Failure to tender goods on time.

C. Maritime Law
1. Limited Liability Rule; Exceptions; Abandonment (Code of Commerce,
Articles 587, 590, 643, 837)
Article 587. The agent shall also be civilly liable for the indemnities in favor of third persons
which arise from the conduct of the captain in the care of the goods which the vessel carried; but
he may exempt himself therefrom by abandoning the vessel with all her equipments and the
freight he may have earned during the voyage.
Article 590. The owners of a vessel shall be civilly liable in the proportion of their contribution
to the common fund, for the results of the acts of the captain, referred to in Article 587.
Each part owner may exempt himself from this liability by the abandonment before a notary of
the part of the vessel belonging to him.

Article 643. If the vessel and her freight should be totally lost, by reason of capture or wreck, all
rights of the crew to demand any wages whatsoever shall be extinguished, as well as that of the
agent for the recovery of the advances made.
If a portion of the vessel or freight should be saved, or part of either, the crew engaged on wages,
including the captain, shall retain their rights on the salvage, so far as they go, on the remainder
of the vessel as well as value of the freightage or the cargo saved; but sailors who are engaged on
shares shall not have any right whatsoever to the salvage of the hull, but only on the portion of
the freightage saved. If they should have worked to collect the remainder of the ship-wrecked
vessel, they shall be given an award in proportion to the efforts made and to the risks
encountered in order to accomplish the salvage.
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.

2. Charter Parties

when the ship has broken ground on the chartered voyage

3. Collisions; Rules on Liability (Code of Commerce, Articles 826-832, 837)

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.
Article 827. If both vessels may be blamed for the collision, each one shall be liable for his own
damages, and both shall be jointly responsible for the losses and damages suffered by their
cargoes.
Article 828. The provisions of the foregoing article are applicable to the case in which it can not
be decided which of the two vessels was the cause of the collision.
Article 829. In the cases above mentioned the civil action of the owner against the person liable
for the damage is reserved, as well as the criminal liabilities which may be proper.
Article 830. If a vessel should collide with another by reason of an accident or through force
majeure, each vessel and her cargo shall be liable for their own damage.
Article 831. If a vessel should be forced to collide with another one by a third vessel, the owner
of the third vessel shall indemnify for the losses and damages caused, the captain thereof being
civilly liable to said owner.
Article 832. If, by reason of a storm or other cause of force 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 particular average to the vessel run into.
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.

4. Arrival under Stress (Code of Commerce, Articles 819-825)

Article 819. If the captain during the navigation should believe that the vessel can not continue
the voyage to the port of destination on account of the lack of provisions, well founded fear of
seizure, privateers or pirates, or by reason of any accident of the sea disabling her to navigate, he
shall assemble the officers and shall call the persons interested in the cargo who may be present,
and who may attend the meeting without the right to vote; and if, after examining the
circumstances of the case, the reasons should be considered well founded, it shall be decided to
make the nearest and most convenient port drafting and entering in the log book the proper
minutes, which shall be signed by all.
The captain shall have the deciding vote and the persons interested in the cargo may make the
objections and protests they may deem proper, which shall be entered in the minutes in order that
they may make use thereof in the manner they may consider advisable.
Article 820. The arrival under stress shall not be considered legal in the following cases:
[Link] the lack of provisions should arise from the failure to take the necessary provisions for the
voyage, according to usage and custom, or if they should have been rendered useless or lost
through bad stowage or negligence in their care.
2. If the risk of enemies, privateers, or pirates should not have been well known, manifest, and
based on positive and justifiable facts.
[Link] the injury to the vessel should have been caused by reason of her not being repaired, rigged,
equipped, and arranged in a convenient manner for the voyage, or by reason of some erroneous
order of the captain.
4. Whenever malice, negligence, want of foresight, or lack of skill on the part of the captain is
the reason for the act causing the damage.
Article 821. The expenses caused by the arrival under stress shall always be for the account of
the shipowner or agent, but the latter shall not be liable for the damage which may be caused the
shippers by reason of the arrival under stress, provided the latter is legitimate.
Otherwise, the shipowner or agent and the captain shall be jointly liable.
Article 822. If in order to make repairs to the vessel or because there should be danger of the
cargo suffering damage it should be necessary to unload, the captain must request authorization
of the judge or court of competent jurisdiction to lighten the vessel, and do so with the
knowledge of the person interested or representative of the cargo, should there be one.
In a foreign port, it shall be the duty of the Spanish * consul, where there is one, to give the
authorization.
In the first case, the expenses shall be defrayed by the ship agent or owner, and in the second,
they shall be for the account of the owners of the merchandise, for whose benefit the act took
place.
If the unloading should take place for both reasons, the expenses shall be defrayed in proportion
to the value of the vessel and that of the cargo.
Article 823. The care and preservation of the cargo which has been unloaded shall be in charge
of the captain, who shall be responsible for the same, except in cases of force majeure.
Article 824. If the entire cargo or part thereof should appear to be damaged, or there should be
imminent danger of its being damaged, the captain may request of the judge or court of
competent jurisdiction or the consul, in a proper case, the sale of all or of part of the former, and
the person taking cognizance of the matter shall authorize it after an examination and declaration
of experts, advertisements, and other formalities required by the case and an entry in the book, in
accordance with the provisions of
Article 624. The captain shall, in a proper case, justify the legality of the procedure, under the
penalty of answering to the shipper for the price the merchandise would have brought if it should
have arrived at the port of its destination in good condition.
Article 825. The captain shall answer for the damages caused by his delay, if the reason for the
arrival under stress having ceased, he should not continue the voyage.
If the reason for said arrival should have been the fear of enemies, privateers, or pirates, before
sailing, a discussion and resolution of a meeting of the officers of the vessel and persons
interested in the cargo who may be present shall take place, in accordance with the provisions
contained in Article 819.

5. Shipwreck (Code of Commerce, Articles 840-845)

Article 840. The losses and deteriorations suffered by a vessel and her cargo by reason of
shipwreck or stranding shall be individually for the account of the owners, the part of the wreck
which may be saved belonging to them in the same proportion.
Article 841. If the wreck or stranding should arise through the malice, negligence, or lack of
skill of the captain, or because the vessel put to sea insufficiently repaired and prepared, the
owner or the freighters may demand indemnity of the captain for the damages caused to the
vessel or cargo by the accident, in accordance with the provisions contained in Articles 610, 612,
614, and 621.
Article 842. The goods saved from the wreck shall be specially liable for the payment of the
expenses of the respective salvage, and the amount thereof must be paid by the owners of the
former before they are delivered to them, and with preference to any other obligation, if the
merchandise should be sold.
Article 843. If several vessels navigate under convoy, and any of them should be wrecked, the
cargo saved shall be distributed among the rest in the proportion to the amount each one can
receive.
If any captain should refuse, without sufficient cause, to receive what may correspond to him, the
captain of the wrecked vessel shall enter a protest against him before two sea officials of the
losses and damages resulting therefrom, ratifying the complaint within twenty-four hours after
arrival at the first port, and including it in the proceedings he must institute in accordance with
the provisions contained in Article 612.
Should it not be possible to transfer to the other vessels the entire cargo of the one wrecked, the
goods of the highest value and smallest volume shall be saved first, the designation thereof being
made by the captain, in concurrence with the officers of his vessel.
Article 844. A captain who may have taken on board the goods saved from the wreck shall
continue his course to the port of destination, and on arrival shall deposit the same, with judicial
intervention, at the disposal of their legitimate owners.
In case of changing his course, should he be able to unload them at the port to which they were
consigned, the captain may make said port if the shippers or supercargoes present consent
thereto, as well as the officers and passengers of the vessel; but he can not do so, even with said
consent, in time of war or when the port is difficult to make and dangerous.
All the expenses of this arrival shall be defrayed by the owners of the cargo, as well as the
payment of the freight, which, taking into consideration the circumstances of the case, are fixed
by agreement or by a judicial decision.
Article 845. If there should not be on the vessel any person interested in the cargo to pay the
expenses and freight corresponding to the salvage, the judge or court of competent jurisdiction
may order the sale of the part necessary to cover the same. This shall also be done when its
preservation is dangerous, or when in the period of one year it should not have been possible to
ascertain who are its legitimate owners.
In both cases the proceedings regarding publicity and formalities prescribed in Article 579 shall
be observed, and the net proceeds of the sale shall be deposited in a safe place, in the judgment
of the judge or court, in order to be turned over to the legitimate owners thereof.

6. Prescription (CA No. 65, Section 6; Code of Commerce, Article 366)

Article 366. Within the twenty-four hours following the receipt of the merchandise a claim may
be brought against the carrier on account of damage or average found therein on opening the
packages, provided that the indications of the damage or average giving rise to the claim can not
be ascertained from the exterior of said packages, in which case said claim would only be
admitted on the receipt of the packages.
After the periods mentioned have elapsed, or after the transportation charges have been paid, no
claim whatsoever shall be admitted against the carrier with regard to the condition in which the
goods transported were delivered.

7. Salvage Law (Act No. 2616)

A principle in maritime law wherby any person who helps recover another
person’s ship or cargo in peril at sea is entitled to a reward commensurate with the
value of the property saved.

C. The Montreal Convention

1. Applicability
 1. to all international carriage of persons, baggage or cargo performed by aircraft
for reward.
2. it applies equally to gratuitous carriage by aircraft performed by an air transport
undertaking.
3. International carriage means any carriage in which, according to the agreement
between the parties , the place of departure and the place of destination, whether
or not there be a break in the carriage or a transshipment, are situated either
a. within the territories of two States Parties , or
b. within the territory of a single party if there is an agreed stopping place
within the territory of another State, even if that State is not a State Party.
4. Carriage between two points within the territory of a single State Party without
an agreed stopping place within the territory of another State is not international
carriage.
5. Carriage to be performed by several successive carriers is deemed to be one
undivided carriage if it has been regarded by the parties as a single operation,
whether it had been agreed upon under the form of a single contract or of a series
of contracts, and it does not lose its international character merely because one
contract or a series of contracts is to be performed entirely within the territory of
the same State.

2. Extent of Liability of Air Carrier

a. Passenger

In case of death or bodily injury of a passenger —

the accident which caused the death or injury took place

a. on board the aircraft or

b. in the course of any of the operations of embarking or disembarking.

b. Baggage
In case of destruction or loss , of of damage to , checked baggage – the
event that caused the destruction, loss or damage took place

a. On board aircraft or
b. During any period within which the checked baggage was in the
charge of the carrier.
 c. Limitations to Liability

In the carriage of cargo, the liability of the carrier in the case of

destruction, loss, damage or delay is limited to a sum of 17 Special
Drawing Rights per kilogramme

3. Liability for Delay

The carrier is liable for damage occasioned by delay in the carriage by air of passengers,
baggage or cargo.
Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves
a. That it and its servants and agents took all measures that could reasonably be
required to avoid the damage OR
b. That it was impossible for it or them to take such measures.