MAURO GANZON vs.
COURT OF APPEALS and
GELACIO E. TUMAMBING
G.R. No. L-48757 May 30, 1988
FACTS
• Gelacio Tumambing contracted the services of Mauro B. Ganzon to haul
305 tons of scrap iron from Mariveles, Bataan, to the port of Manila on
board the lighter LCT "Batman". Pursuant to that agreement, Ganzon sent
his lighter "Batman" to Mariveles where it docked in three feet of water.
• Tumambing delivered the scrap iron to Filomeno Niza, captain of the
lighter, for loading which was actually begun on the same date by the crew
of the lighter under the captain's supervision. When about half of the
scrap iron was already loaded, Mayor Jose Advincula of Mariveles, Bataan,
arrived and demanded P5,000.00 from Tumambing.
• Tumambing resisted the shakedown and after a heated argument between
them, Mayor Advincula drew his gun and fired at Tumambing. The gunshot
was not fatal but Tumambing had to be taken to a hospital for treatment.
• After sometime, the loading of the scrap iron was resumed. Acting Mayor Basilio
Rub, accompanied by three policemen, ordered captain Niza and his crew to
dump the scrap iron where the lighter was docked. The rest was brought to the
compound of NASSCO. Later on Acting Mayor Rub issued a receipt stating that
the Municipality of Mariveles had taken custody of the scrap iron.
• Tumambing instituted an action against Ganzon for damagaes based on culpa
contractual
• Ganzon set up the defense that the loss was due to an order or act of competent
public authority under Art. 1734 (5)
• CA – rendered Ganzon guilty of breach of contract of transportation and imposed
on him the liability.
• Before the SC, Ganzon maintained that he is exempt from any liability because
the loss of the scraps was due mainly to the intervention of the municipal
officials of Mariveles which constitutes a caso fortuito as defined in Article 1174
of the Civil Code.
ISSUE
Whether the loss of the scraps due to the intervention of the municipal
officials constitutes a fortuitous event.
HELD
Firstly, the court did not allow a change of defense theory from “order or act
of competent public authority” under Art. 1734 (5) to “caso fortuito” under
Art. 1174.
(Ruling as to Art. 1734 (5) defense) Art. 1735 of the Civil Code, conversely
stated, means that the shipper will suffer the losses and deterioration arising
from the causes enumerated in Art. 1734; and in these instances, the burden
of proving that damages were caused by the fault or negligence of the carrier
rests upon him. However, the carrier must first establish that the loss or
deterioration was occasioned by one of the excepted causes or was due to an
unforeseen event or to force majeure. Ganzon, in this case, failed to establish
that Acting Mayor Rub had the power to issue the disputed order, or that it
was lawful, or that it was issued under legal process of authority.
(Ruling as to Art. 1174 defense) The intervention of the municipal
officials was not in any case, of a character that would render
impossible the fulfillment by the carrier of its obligation. Ganzon was
not duty bound to obey the illegal order to dump into the sea the scrap
iron. Moreover, there is absence of sufficient proof that the issuance of
the same order was attended with such force or intimidation as to
completely overpower the will of the Ganzon's employees. The mere
difficulty in the fulfillment of the obligation is not considered force
majeure.
MELENCIO-HERRERA, J., dissenting:
• The loading of the scrap iron on the lighter had to be suspended because of
Mayor Advincula's intervention, who was a "competent public authority."
Ganzon had no control over the situation as, in fact, Tumambing himself, the
owner of the cargo, was impotent to stop the "act' of said official and even
suffered a gunshot wound on the occasion.
• The captain of the lighter and his crew could not have defied the order of Acting
Mayor Basilio Rub, accompanied by three policemen, to dump the scrap iron.
• Through the "order" or "act" of "competent public authority," therefore, the
performance of a contractual obligation was rendered impossible. The scrap iron
that was dumped into the sea was "destroyed" while the rest of the cargo was
"seized“, as evidenced by the receipt issues by Acting Mayor Rub.
• Art. 1743. If through order of public authority the goods are seized or destroyed,
the common carrier is not responsible, provided said public authority had power
to issue the order.
