SECOND DIVISION

[G.R. No. 101426. May 17, 1993.]

PHILIPPINE AMERICAN GENERAL INSURANCE COMPANY, INC. ,

petitioner, vs. COURT OF APPEALS and TRANSPACIFIC TOWAGE,
INC. , respondents.

Linsangan Law Office for petitioner.

Misa, Castro & Associates for private respondent.

SYLLABUS

1. CIVIL LAW; COMMON CARRIER; LIABILITY THEREOF FOR LOSS OF GOODS;

EXEMPTION THEREFROM; CASE AT BAR. — While it is true that there was indeed delay in
discharging the cargo from the vessel, we agree with the Court of Appeals that neither of
the parties herein could be faulted for such delay, for the same (delay) was due not to
negligence, but to several factors earlier discussed. The cargo having been lost due to
typhoon "Saling", and the delay incurred in its unloading not being due to negligence,
private respondent is exempt from liability for the loss of the cargo, pursuant to Article
1740 of the Civil Code. The records also show that before, during and after the occurrence
of typhoon "Saling", private respondent through its shipmaster exercised due diligence to
prevent or minimize the loss of the cargo, as shown by the following facts: (1) at 5:20 a.m.
of 18 October 1985, as typhoon "Saling" continued to batter the Pasacao area, the
shipmaster tried to maneuver the vessel amidst strong winds and rough seas; (2) when
water started to enter the engine room and later the engine broke down, the shipmaster
ordered the ship to be abandoned, but he sought police assistance to prevent pilferage of
the vessel and its cargo; (3) after the vessel broke into two (2) parts and sank partially, the
shipmaster reported the incident to the Philippine Coast Guard, but unfortunately, despite
the presence of three (3) coast guards, nothing could be done to stop the pilferage as
almost the entire barrio folk came to loot the vessel and its cargo, including the G.I. sheets.
The diligence exercised by the shipmaster further supports the exemption of private
respondent from liability for the loss of the cargo, in accordance with Article 1739 of the
Civil Code.
2. REMEDIAL LAW; CIVIL PROCEDURE; MOTION TO DISMISS; RES JUDICATA AS A
GROUND; REQUISITES, NOT PRESENT IN CASE AT BAR. — Although we find private
respondent free from liability for the loss of the cargo, we disagree with its contention that
the doctrine of res judicata applies in the case at bar, because the Board of Marine Inquiry
rendered a decision dated 11 April 1988 (acting on the marine protest filed on 19 October
1985 by the shipmaster of M/V "Crazy Horse") holding that said shipmaster was not guilty
of "negligence as the proximate cause of the grounding and subsequent wreckage of M/S
"Crazy Horse", hence, recommending that the captain, his officers and crew be absolved
from any administrative liability arising out of the subject incident." The resolution of the
present case is not barred by the judgment of the Board of Marine Inquiry. One of the
requisites of the principle of res judicata is that there must be, among other things, identity
of subject matters and causes of action between a first and second case in order that the
judgment in the prior case may bar that in the subsequent case. The cause of action in the
marine protest was to enforce the administrative liability of the shipmaster/captain of M/V
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 "Crazy Horse", its officers and crew for the wreckage and sinking of the subject vessel. On
the other hand, the cause of action at bar is to enforce the civil liability of private
respondent, a common carrier, for its failure to unload the subject cargo within a period of
time considered unreasonably long by the petitioner. While it may be true that the Court is
bound to accord great weight to factual findings of the Board, we hold that the protest
filed before it and the present case assert different causes of action and seek different
reliefs.

DECISION

PADILLA , J : p

In this Petition for review on certiorari, Philippine American General Insurance Company,
Incorporated assails the decision ** of the Court of Appeals, dated 31 July 1991, rendered
in CA-G.R. CV. No. 21252, which reversed and set aside the decision of the Regional Trial
Court of Manila, Branch 16 1 and entered a new one dismissing the petitioner's complaint
which sought to collect the sum of P1,511,210.00 from the private respondent.
The facts of the case, as found by the Court of Appeals, 2 are as follows:
"On September 4, 1985 the Davao Union Marketing Corporation of Davao City
shipped on board the vessel M/V "Crazy Horse" operated by the Transpacific
Towage, Inc. cargo consisting of 9,750 sheets of union brand GI sheets with a
declared value of P1,086,750.00 and 86,860 bags of union Pozzolan and union
Portland Cement with a declared value of P4,300,000.00. The cargo was
consigned to the Bicol Union Center of Pasacao, Camarines Sur, with a certain
Pedro Olivan as the "Notify-Party."

The cargo was insured by the Philippine American General Insurance Co., Inc.
under Marine Note No. 023408 covering 86,000. of Union Pozzolan and Portland
cement for the amount of P3,440,000,00.

The vessel M/V "Crazy Horse" arrived on September 7, 1985 as scheduled at the
port of Pasacao, Camarines Sur. Upon arrival the shipmaster notified the
consignee's "Notify-Party" that the vessel was already (sic) to discharge the cargo.
The discharging, could not be effected immediately and continuously because of
certain reasons. First, the buoys were installed only on September 11, 1985;
second, the discharge permit was secured by the consignee only on September
13, 1985; third a wooden catwalk had to be installed and extension of the wharf
had to be made, which was completed only on September 26, 1985; fourth, the
discharging was not continuous because there were intermittent rains and the
stevedores supplied by the consignee did not work during the town fiesta.
(Underscoring ours)

On October 16, 1985, a super typhoon code named "Saling" entered the Philippine
area of responsibility and was felt in the eastern coast of the country on October
17, 1985. It had a strength of 240 KPH and Pasacao was Placed under Storm
Signal No. 3. The discharging of the cargo had to be suspended at 11:40 A.M. on
October 17, 1985 due to the heavy downpour, strong winds, and turbulent sea. To
Prevent damage to the cargo all hatches of the vessel were closed and secured.
(Emphasis ours)

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 At the time the discharging of the cargo was suspended, a total of 59,625 bags of
cement and 26 crates of GI sheets had already been discharged.
In further preparation for the typhoon the vessel was loaded with 22 tons of fresh
water and 3,000 liters of fuel. The shipmaster ordered the vessel to be moved
about 300 meters seaward in order that it would not hit the catwalk or the wooden
bridge or the wharf, or the rocks. The vessel was ready for any maneuver that may
have to be made.

According to the shipmaster who was plotting the typhoon's path in a chart, the
radius was so wide that there was no way the typhoon could be evaded. From
8:00 P.M. of October 17, 1985 to 8:00 P.M. of October 18, 1985 the typhoon raged
in the area. It was at about 5:20 A.M. of October 18, 1985 when the shipmaster
ordered the maneuvering of the vessel but it could not be steered on account of
the strong winds and rough seas. The vessel's lines snapped, causing her to be
dragged against the rocks, and the anchor chain stopper gave way. The vessel
sustained holes in the engine room and there was a power failure in the vessel.
Water started to fill the engine room and at about 6:15 A.M. the engine broke
down.

The shipmaster had no choice but to order the ship to be abandoned. He told the
crew to secure the vessel while he went to the Municipal Mayor of Pasacao to
request for police assistance to prevent pilferage of the vessel and its cargo. He
was, however, unable to get any assistance. When he returned to the vessel he
found that it was being continuously pounded by the strong sea waves against
the rocks. This caused the vessel to break into two (2) parts and to sink partially.
The shipmaster reported the incident to the Philippine Coast Guard but inspite the
presence of three (8) coast guards, nothing could be done about the pilferage
done on the vessel and its cargo. Almost the whole barrio came to loot the vessel
and its cargo and because there were so many of them the crew and the guards
were helpless to stop the pilferage and looting. As a result of the incident the
cargo of cement was damaged while the GI sheets were looted and nothing was
left of the undischarged pieces.

The total number of cement bags damaged and/or lost was 26,424 costing
P1,056,960.00 while there were 4,000 pieces of the GI sheets unrecovered, the
cost of which was P454,250.00.

Because the cargo was insured by it the Philippine American General Insurance
Co., Inc. paid the shipper Davao Union Marketing Corporation the sum of
P1,511,210.00. Thereafter, the said insurer made demands upon the Transpacific
Towage, Inc. for the payment of said amount as subrogee of the insured, claiming
that the loss of the cargo was directly and exclusively brought about by the fault
and negligence of the shipmaster and the crew of M/V "Crazy Horse". Because the
latter refused to pay the amount of P1,511,210.00 demanded, the Philippine
American General Insurance Co., Inc. filed the present complaint. Cdpr

The lower court found that although the immediate cause of the loss may have
been due to an act of God, the defendant carrier had exposed the property to the
accident. The court also found the plaintiff guilty of contributory negligence and
mitigated the plaintiff's claim to three-fourths (3/4) of its value. Thus the lower
court, in its Decision, ordered the defendant:

"1) To pay plaintiff the mitigated amount of P1,133,408.00 Plus. 12%

legal interest per annum computed from the date of the filing of herein
complaint on May 15, 1986, until fully paid;
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 2) To pay P8,000.00 as attorney's fees; and
3) To pay costs of suit.

SO ORDERED."

In its now assailed decision, respondent Court of Appeals reversed the decision of the trial
court and ruled instead that private respondent, as a common carrier, is not responsible
for the loss of the insured cargo involved in the case at bar, as said loss was due solely to
a fortuitous event.
Petitioner in the present petition contends that respondent appellate court erred in not
holding private respondent liable for the loss of the said insured cargo.
We affirm the decision of the Court of Appeals.
It is not disputed that private respondent is a common carrier as defined in Article 1732 of
the Civil Code. 3 The following facts are also not contested: (1) that the cargo-carrying
vessel was wrecked and partially sank on 18 October 1985 due to typhoon "Saling"; (2)
that typhoon "Saling" was a fortuitous event; and (3) that at the time said vessel sank, the
remaining undischarged cargo, consisting of 26,424 cement bags and 4,000 pieces of G.I.
sheets, were still on board the vessel.
However, the Court notes the fact that as of 17 October 1985, the time when the Pasacao
area was placed under storm signal No. 3 due to "Saling", the unloading of the cargo from
the vessel was still unfinished, notwithstanding the lapse of forty (40) days from the time
the vessel arrived in Pasacao on 7 September 1985, or the lapse of thirty-four (34) days
from the time actual discharge of the cargo commenced on 13 September 1985.
In the opinion of the trial court, this lapse of thirty four (34) days with private respondent
not having completed the unloading of the goods, is tantamount to unreasonable delay,
which delay exposed the unloaded cargo to accident. The trial court held private
respondent liable for the loss of goods under Article 1740 of the Civil Code which provides
that if the common carrier negligently incurs in delay in transporting the goods, a natural
disaster shall not free the carrier from responsibility.
On the other hand, the appellate court ruled out any negligence committed by private
respondent and held that the delay in fully unloading the cargo from the vessel "was
occasioned by causes that may not be attributed solely to human factors, among which
were the natural conditions of the port where the M/V "Crazy Horse" had docked, the
customs of the place and the weather conditions." 4
The appellate court in exempting private respondent from liability applied Article 1739 of
the Civil Code which provides as follows:
"In order that the common carrier may be exempted from responsibility, the
natural disaster must have been the proximate and only cause of the loss.
However, the common carrier must exercise due diligence to prevent or minimize
loss before, during and after the occurrence of flood, storm, or other natural
disaster in order that the common carrier may be exempted from, liability for the
loss, destruction, or deterioration of the goods."

The appellate court ruled that the loss of cargo in the present case was due solely to
typhoon "Saling" and that private respondent had shown that it had observed due diligence
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 before, during and after the occurrence of "Saling"; hence, it should not be liable under
Article 1739.
Considering the undisputed fact that there really was delay in completing the unloading of
the goods from the vessel, the Court believes that the real issue at bar centers on the
application of Article 1739 of the Civil Code. In short, the principal question, in determining
which of the parties in the present case should bear the loss of the goods, is whether the
delay involved in the unloading of the goods is deemed negligently incurred in, so as not to
free private respondent from liability, notwithstanding the fact that the ultimate cause of
the loss of the goods was the sinking of the vessel brought about by typhoon "Saling." llcd

Indeed, from the time the vessel arrived at port Pasacao on 7 September 1985 up to 17
October 1985 when the Pasacao area was placed under storm signal No. 3 due to typhoon
"Saling", forty (40) days had passed. Under normal conditions, a period of forty (40) days is
undoubtedly more than enough time within which the unloading of the cargo (given its
nature) from the vessel could be completed. Hence, the question boils down further to
which party should be faulted for this delay.
Private respondent argues that its duty to unload ceased on 7 September 1985 when the
shipmaster notified the consignee's "Notify-Party" that the vessel was ready to discharge
the cargo. On the other hand, petitioner contends that the duty to unload the cargo from
the vessel continued to remain with private respondent. Respondent appellate court,
however, ruled that the question as to which party had the task to discharge the cargo is
actually immaterial under the circumstances, as the delay could not be attributed to any of
the parties, but to several causes such as the natural conditions of the Pasacao port, the
customs of the place and the weather conditions obtaining at the time. The appellate court
made the following observations:
"xxx xxx xxx
To our mind whichever of the parties had the obligation to unload the cargo is not
material. For, analyzing the causes for the delay in such unloading, we find that
such delay was not due to the negligence of any party but was occasioned by
causes that may not be attributed solely to human factors, among which were the
natural conditions of the port where the M/V "Crazy Horse" had docked, the
customs of the place, and the weather conditions.
The wharf where the vessel had to dock was shallow and rocky, hence it had to
drop anchor some distance away in a private port. Buoys had to be constructed in
order that the vessel may be properly moored. After the buoys were installed a
wooden stage had to be constructed so that the stevedores could reach the
vessel. For this they needed a floating crane which was not immediately
available. The barges that were to load the cargo from the vessel could not go
near the wharf because of the shallow and rocky condition. A catwalk had to be
installed between the barge and the wharf. This necessitated the dismantling of
the wooden stage previously installed.prLL

Apart from these preparations and constructions that had to be made, the
weather was not cooperative. Even before the typhoon struck there were
intermittent rains, hence the unloading was not continuous. The actual unloading
started on September 13, 1985 and could have been finished in 4 or 5 days but
because of the rains it was delayed. Another factor that caused further delay was
the fact that the fiesta of the Virgin of Peñafrancia was celebrated and for the
length of time that the celebrations were held, the stevedores who were from the
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 place refused to work.

xxx xxx xxx." 5

The Court of Appeals summarized the reasons which adversely affected the completion of
the unloading of the cargo from the time the vessel arrived at the Pasacao area on 7
September 1985, namely: first, the buoys were installed only on 11 September 1985;
second, the consignee secured the discharge permit only on 13 September 1985; third, a
wooden catwalk had to be installed and the extension of the wharf had to be made, which
was completed only on 16 September 1985; fourth, there were intermittent rains and the
stevedores supplied by the consignee did not work during the town fiesta of the Virgin of
Peñafrancia, hence, the unloading was not continuous.
We respect the above-mentioned factual findings of the appellate court as to the natural
conditions of the port of Pasacao where the vessel was docked, and several other factors
which harshly affected the completion of the discharge of the cargo, as these findings of
fact are substantially supported by evidence. 6
While it is true that there was indeed delay in discharging the cargo from the vessel, we
agree with the Court of Appeals that neither of the parties herein could be faulted for such
delay, for the same (delay) was due not to negligence, but to several factors earlier
discussed. The cargo having been lost due to typhoon "Saling", and the delay incurred in its
unloading not being due to negligence, private respondent is exempt from liability for the
loss of the cargo, pursuant to Article 1740 of the Civil Code.
The records also show that before, during and after the occurrence of typhoon "Saling",
private respondent through its shipmaster exercised due diligence to prevent or minimize
the loss of the cargo, as shown by the following facts: (1) at 5:20 a.m. of 18 October 1985,
as typhoon "Saling" continued to batter the Pasacao area, the shipmaster tried to
maneuver the vessel amidst strong winds and rough seas; (2) when water started to enter
the engine room and later the engine broke down, the shipmaster ordered the ship to be
abandoned, but he sought police assistance to prevent pilferage of the vessel and its
cargo; (3) after the vessel broke into two (2) parts and sank partially, the shipmaster
reported the incident to the Philippine Coast Guard, but unfortunately, despite the
presence of three (3) coast guards, nothing could be done to stop the pilferage as almost
the entire barrio folk came to loot the vessel and its cargo, including the G.I. sheets.
The diligence exercised by the shipmaster further supports the exemption of private
respondent from liability for the loss of the cargo, in accordance with Article 1739 of the
Civil Code.
Although we find private respondent free from liability for the loss of the cargo, we
disagree with its contention that the doctrine of res judicata applies in the case at bar,
because the Board of Marine Inquiry rendered a decision dated 11 April 1988 (acting on
the marine protest filed on 19 October 1985 by the shipmaster of M/V "Crazy Horse")
holding that said shipmaster was not guilty of "negligence as the proximate cause of the
grounding and subsequent wreckage of M/S "Crazy Horse", hence, recommending that the
captain, his officers and crew be absolved from any administrative liability arising out of
the subject incident." 7

The resolution of the present case is not barred by the judgment of the Board of Marine
Inquiry. One of the requisites of the principle of res judicata is that there must be, among
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 other things, identity of subject matters and causes of action between a first and second
case in order that the judgment in the prior case may bar that in the subsequent case. 8
The cause of action in the marine protest was to enforce the administrative liability of the
shipmaster/captain of M/V "Crazy Horse", its officers and crew for the wreckage and
sinking of the subject vessel. On the other hand, the cause of action at bar is to enforce the
civil liability of private respondent, a common carrier, for its failure to unload the subject
cargo within a period of time considered unreasonably long by the petitioner. While it may
be true that the Court is bound to accord great weight to factual findings of the Board, 9
we hold that the protest filed before it and the present case assert different causes of
action and seek different reliefs. LLphil

All told, we find private respondent not legally liable for the loss of the insured cargo
involved in the present case.
WHEREFORE, the petition is DENIED. The appealed decision of the Court of Appeals, dated
31 July 1991, rendered in CA-G.R. CV No. 21252, is hereby AFFIRMED.
SO ORDERED.
Narvasa, C .J ., Regalado and Nocon, JJ ., concur.
Footnotes

** Penned by Mme. Justice Salome A. Montoya with the concurrence of Justices Eduardo
R. Bengzon and Celso L. Magsino.
1. Rollo, p. 4.

2. Ibid, pp. 49-51.

3. ART. 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.

4. Ibid, p. 53.
5. Rollo, pp. 53-54.
6. Republic vs. Intermediate Appellate Court, G.R. No. 70594, 10 October 1986 144 SCRA
705.
7. Rollo, p. 142.
8. Delfin vs. Inciong, G.R. No. 50661, 10 December 1990, 192 SCRA 151.
9. Vasquez vs. Court of Appeals, G.R. No. 42926, September 13, 1985, 138 SCRA 553.

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