NO. The importer is not entitled to receive any indemnity for average. In order that the goods jettisoned may be included in the general average and the owner be entitled to indemnity, it is necessary that their existence on board be proven by means of the bill of lading.
Under the doctrine of inscrutable fault, neither of the carriers may go after the other.
The shippers may claim damages against the shipowners and the captains of both vessels, having been both negligent. Their liability is solidary.
The shipowners have the right to recover damages from the master of the vessels who were both guilty of negligence. The presence of a typhoon in the area had in fact warranted a greater degree of alertness on their part.
The shipowners of the SS Masdaam and M/V Princess shall each bear their respective loss of vessels.
For the losses and damages suffered by their cargoes, both shipowners are solidarily liable.
a. I could hold the 2 vessels liable. In the problem given, whether on the basis of the factual settings or under the doctrine of inscrutable fault, both vessels can be said to have been guilty of negligence. The liability of the 2 carriers for the death or injury of passengers and for the loss of or damage to the goods arising from the collision is solidary. Neither carrier may invoke the doctrine of last clear chance which can only be relevant, if at all, between the 2 vessels but not on the claims made by passengers or shippers.
b. Yes, but subject to the doctrine of limited liability. The doctrine is to the effect that the liability of the shipowners would only be to the extent of any remaining value of the vessel, proceeds of insurance, if any, and earned freightage. Given the factual settings, the shipowner himself was not guilty of negligence and, therefore, the doctrine can well apply.
A maritime protest is a sworn statement stating the circumstances of collision which must be presented within 24 hours before the competent authority of the port nearest to where the collision had taken place or the first port of arrival or, if it occurs in a foreign country, the Philippine consular representative. An action to recover losses and damages arising from collisions cannot be admitted if such protest, however, will not prejudice such action by owners of cargo who were not on board the vessel or who were not in a condition to make known their wishes.
a. Maritime protest is a sworn statement made within 24 hours after a collision in which the circumstances thereof are declared or made known before a competent authority at the point of accident or the first port of arrival if in the Philippines or the Philippine consul in a foreign country. (Art. 835, Code of Commerce)
b. A, the passenger, is required to file a maritime protest since being a passenger of the vessel at the time of the collision, was expected to know the circumstances of the collision; thus, A cannot successfully maintain an action to recover losses and damages. B, the shipper, can successfully maintain an action to recover since he wasn’t there when the collision happened and he is not privy to the circumstances of the collision.
a. The action taken by the local consignee has, in fact, prescribed. The period of 1 year under the COGSA is not interrupted by a written extrajudicial demand. The provision of Article 1155 of the Civil Code merely applies to the prescriptive periods provided for in said Code and not the special laws except when otherwise provided.
b. If the consignee’s action were predicated on misdelivery or conversion of the goods, the provisions of the COGSA would be inapplicable. In this case, the Civil Code prescriptive periods, including Art. 1155 of the Civil Code, will apply.
The applicable prescriptive period is 10 years under the Civil Code. The 1-year prescriptive period under the COGSA applies in cases of loss or damage to the cargo. The term “loss” as interpreted by the Supreme Court in Mitsui O.S.K. Lines, contemplates a situation where no delivery at all was made by the carrier of the goods because the same had perished or gone out of commerce deteriorated or decayed while in transit. In the present case, the shipment of ladies’ wear was actually delivered. The “loss of value” is not the total loss contemplated by the COGSA.
NA Insurance is correct. ATI should be ordered to pay NA Insurance notwithstanding the lapse of the one-year prescriptive period for filing a suit under the COGSA. The term “carriage of goods” under Section 1 in COGSA, covers the period from the time when the goods are loaded to the time when they are discharged from the ship infer that the period of time when the goods have been discharged from the ship and given to the custody of the arrastre operator is not covered by the COGSA. The COGSA does not mention that an arrastre operator may invoke the prescriptive period of one year; hence, it does not cover the arrastre operator.
