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Transpo – 5 Loadmasters Customs Services Inc., v Glodel Brokerage Corp.

LOADMASTERS CUSTOMS SERVICES, INC., Petitioner, v. GLODEL BROKERAGE CORPORATION AND R&B
INSURANCE CORPORATION, Respondents.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court assailing the August 24, 2007
Decision1cralaw of the Court of Appeals (CA) in CA-G.R. CV No. 82822, entitled " R&B Insurance Corporation v. Glodel
Brokerage Corporation and Loadmasters Customs Services, Inc.," which held petitioner Loadmasters Customs Services,
Inc. (Loadmasters) liable to respondent Glodel Brokerage Corporation (Glodel) in the amount of P 1,896,789.62 representing the
insurance indemnity which R&B Insurance Corporation (R&B Insurance) paid to the insured-consignee, Columbia Wire and
Cable Corporation (Columbia).

THE FACTS:

On August 28, 2001, R&B Insurance issued Marine Policy No. MN-00105/2001 in favor of Columbia to insure the shipment of
132 bundles of electric copper cathodes against All Risks. On August 28, 2001, the cargoes were shipped on board the vessel
"Richard Rey" from Isabela, Leyte, to Pier 10, North Harbor, Manila. They arrived on the same date.

Columbia engaged the services of Glodel for the release and withdrawal of the cargoes from the pier and the subsequent
delivery to its warehouses/plants. Glodel, in turn, engaged the services of Loadmasters for the use of its delivery trucks to
transport the cargoes to Columbia's warehouses/plants in Bulacan and Valenzuela City.

The goods were loaded on board twelve (12) trucks owned by Loadmasters, driven by its employed drivers and accompanied by
its employed truck helpers. Six (6) truckloads of copper cathodes were to be delivered to Balagtas, Bulacan, while the other six
(6) truckloads were destined for Lawang Bato, Valenzuela City. The cargoes in six truckloads for Lawang Bato were duly
delivered in Columbia's warehouses there. Of the six (6) trucks en route to Balagtas, Bulacan, however, only five (5) reached the
destination. One (1) truck, loaded with 11 bundles or 232 pieces of copper cathodes, failed to deliver its cargo.

Later on, the said truck, an Isuzu with Plate No. NSD-117, was recovered but without the copper cathodes. Because of this
incident, Columbia filed with R&B Insurance a claim for insurance indemnity in the amount of P 1,903,335.39. After the requisite
investigation and adjustment, R&B Insurance paid Columbia the amount of P 1,896,789.62 as insurance indemnity.

R&B Insurance, thereafter, filed a complaint for damages against both Loadmasters and Glodel before the Regional Trial Court,
Branch 14, Manila (RTC), docketed as Civil Case No. 02-103040. It sought reimbursement of the amount it had paid to
Columbia for the loss of the subject cargo. It claimed that it had been subrogated "to the right of the consignee to recover from
the party/parties who may be held legally liable for the loss."2

On November 19, 2003, the RTC rendered a decision 3cralaw holding Glodel liable for damages for the loss of the subject cargo
and dismissing Loadmasters' counterclaim for damages and attorney's fees against R&B Insurance. The dispositive portion of
the decision reads:

WHEREFORE, all premises considered, the plaintiff having established by preponderance of evidence its claims against
defendant Glodel Brokerage Corporation, judgment is hereby rendered ordering the latter:

1. To pay plaintiff R&B Insurance Corporation the sum of P 1,896,789.62 as actual and compensatory damages, with interest
from the date of complaint until fully paid;

2. To pay plaintiff R&B Insurance Corporation the amount equivalent to 10% of the principal amount recovered as and for
attorney's fees plus P 1,500.00 per appearance in Court;

3. To pay plaintiff R&B Insurance Corporation the sum of P 22,427.18 as litigation expenses.

WHEREAS, the defendant Loadmasters Customs Services, Inc.'s counterclaim for damages and attorney's fees against plaintiff
are hereby dismissed.
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Transpo – 5 Loadmasters Customs Services Inc., v Glodel Brokerage Corp.
With costs against defendant Glodel Brokerage Corporation.

SO ORDERED.4

Both R&B Insurance and Glodel appealed the RTC decision to the CA.

On August 24, 2007, the CA rendered the assailed decision which reads in part:

Considering that appellee is an agent of appellant Glodel, whatever liability the latter owes to appellant R&B Insurance
Corporation as insurance indemnity must likewise be the amount it shall be paid by appellee Loadmasters.

WHEREFORE, the foregoing considered, the appeal is PARTLY GRANTED in that the appellee Loadmasters is likewise held
liable to appellant Glodel in the amount of P 1,896,789.62 representing the insurance indemnity appellant Glodel has been held
liable to appellant R&B Insurance Corporation.

Appellant Glodel's appeal to absolve it from any liability is herein DISMISSED.

SO ORDERED.5

Hence, Loadmasters filed the present petition for review on certiorari before this Court presenting the following

ISSUES

1. Can Petitioner Loadmasters be held liable to Respondent Glodel in spite of the fact that the latter respondent Glodel
did not file a cross-claim against it (Loadmasters)?

2. Under the set of facts established and undisputed in the case, can petitioner Loadmasters be legally considered as
an Agent of respondent Glodel? 6

To totally exculpate itself from responsibility for the lost goods, Loadmasters argues that it cannot be considered an agent of
Glodel because it never represented the latter in its dealings with the consignee. At any rate, it further contends that Glodel has
no recourse against it for its (Glodel's) failure to file a cross-claim pursuant to Section 2, Rule 9 of the 1997 Rules of Civil
Procedure.

Glodel, in its Comment,7cralaw counters that Loadmasters is liable to it under its cross-claim because the latter was grossly
negligent in the transportation of the subject cargo. With respect to Loadmasters' claim that it is already estopped from filing a
cross-claim, Glodel insists that it can still do so even for the first time on appeal because there is no rule that provides otherwise.
Finally, Glodel argues that its relationship with Loadmasters is that of Charter wherein the transporter (Loadmasters) is only
hired for the specific job of delivering the merchandise. Thus, the diligence required in this case is merely ordinary diligence or
that of a good father of the family, not the extraordinary diligence required of common carriers.

R&B Insurance, for its part, claims that Glodel is deemed to have interposed a cross-claim against Loadmasters because it was
not prevented from presenting evidence to prove its position even without amending its Answer. As to the relationship between
Loadmasters and Glodel, it contends that a contract of agency existed between the two corporations. 8

Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right, so that he who is
substituted succeeds to the rights of the other in relation to a debt or claim, including its remedies or
securities.9cralaw Doubtless, R&B Insurance is subrogated to the rights of the insured to the extent of the amount it paid the
consignee under the marine insurance, as provided under Article 2207 of the Civil Code, which reads:

ART. 2207. If the plaintiff's property has been insured, and he has received indemnity from the insurance company for the injury
or loss arising out of the wrong or breach of contract complained of, the insurance company shall be subrogated to the rights of
the insured against the wrong-doer or the person who has violated the contract. If the amount paid by the insurance company
does not fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the person causing the
loss or injury.

As subrogee of the rights and interest of the consignee, R&B Insurance has the right to seek reimbursement from either
Loadmasters or Glodel or both for breach of contract and/or tort.
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Transpo – 5 Loadmasters Customs Services Inc., v Glodel Brokerage Corp.
The issue now is who, between Glodel and Loadmasters, is liable to pay R&B Insurance for the amount of the indemnity it paid
Columbia.

At the outset, it is well to resolve the issue of whether Loadmasters and Glodel are common carriers to determine their liability
for the loss of the subject cargo. Under Article 1732 of the Civil Code, common carriers are persons, corporations, firms, or
associations engaged in the business of carrying or transporting passenger or goods, or both by land, water or air for
compensation, offering their services to the public.

Based on the aforecited definition, Loadmasters is a common carrier because it is engaged in the business of transporting goods
by land, through its trucking service. It is a common carrier as distinguished from a private carrier wherein the carriage is
generally undertaken by special agreement and it does not hold itself out to carry goods for the general public. 10cralaw The
distinction is significant in the sense that "the rights and obligations of the parties to a contract of private carriage are governed
principally by their stipulations, not by the law on common carriers." 11

In the present case, there is no indication that the undertaking in the contract between Loadmasters and Glodel was private in
character. There is no showing that Loadmasters solely and exclusively rendered services to Glodel.

In fact, Loadmasters admitted that it is a common carrier.12

In the same vein, Glodel is also considered a common carrier within the context of Article 1732. In its Memorandum, 13cralaw it
states that it "is a corporation duly organized and existing under the laws of the Republic of the Philippines and is engaged in the
business of customs brokering." It cannot be considered otherwise because as held by this Court in Schmitz Transport &
Brokerage Corporation v. Transport Venture, Inc.,14cralaw a customs broker is also regarded as a common carrier, the
transportation of goods being an integral part of its business.

Loadmasters and Glodel, being both common carriers, are mandated from the nature of their business and for reasons of public
policy, to observe the extraordinary diligence in the vigilance over the goods transported by them according to all the
circumstances of such case, as required by Article 1733 of the Civil Code. When the Court speaks of extraordinary diligence, it is
that extreme measure of care and caution which persons of unusual prudence and circumspection observe for securing and
preserving their own property or rights.15cralaw This exacting standard imposed on common carriers in a contract of carriage of
goods is intended to tilt the scales in favor of the shipper who is at the mercy of the common carrier once the goods have been
lodged for shipment.16cralaw Thus, in case of loss of the goods, the common carrier is presumed to have been at fault or to have
acted negligently.17cralaw This presumption of fault or negligence, however, may be rebutted by proof that the common carrier
has observed extraordinary diligence over the goods.

With respect to the time frame of this extraordinary responsibility, the Civil Code provides that the exercise of extraordinary
diligence lasts from the time the goods are unconditionally placed in the possession of, and received by, the carrier for
transportation until the same are delivered, actually or constructively, by the carrier to the consignee, or to the person who has a
right to receive them.18

Premises considered, the Court is of the view that both Loadmasters and Glodel are jointly and severally liable to R & B
Insurance for the loss of the subject cargo. Under Article 2194 of the New Civil Code, "the responsibility of two or more persons
who are liable for a quasi-delict is solidary."

Loadmasters' claim that it was never privy to the contract entered into by Glodel with the consignee Columbia or R&B Insurance
as subrogee, is not a valid defense. It may not have a direct contractual relation with Columbia, but it is liable for tort under the
provisions of Article 2176 of the Civil Code on quasi-delicts which expressly provide:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-
delict and is governed by the provisions of this Chapter.

Pertinent is the ruling enunciated in the case ofMindanao Terminal and Brokerage Service, Inc. v. Phoenix Assurance Company
of New York,/McGee & Co., Inc.19cralaw where this Court held that a tort may arise despite the absence of a contractual
relationship, to wit:

We agree with the Court of Appeals that the complaint filed by Phoenix and McGee against Mindanao Terminal, from which the
present case has arisen, states a cause of action. The present action is based on quasi-delict, arising from the negligent and
careless loading and stowing of the cargoes belonging to Del Monte Produce. Even assuming that both Phoenix and McGee
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Transpo – 5 Loadmasters Customs Services Inc., v Glodel Brokerage Corp.
have only been subrogated in the rights of Del Monte Produce, who is not a party to the contract of service between Mindanao
Terminal and Del Monte, still the insurance carriers may have a cause of action in light of the Court's consistent ruling that the
act that breaks the contract may be also a tort. In fine, a liability for tort may arise even under a contract, where tort is that
which breaches the contract. In the present case, Phoenix and McGee are not suing for damages for injuries arising from
the breach of the contract of service but from the alleged negligent manner by which Mindanao Terminal handled the
cargoes belonging to Del Monte Produce. Despite the absence of contractual relationship between Del Monte Produce and
Mindanao Terminal, the allegation of negligence on the part of the defendant should be sufficient to establish a cause of action
arising from quasi-delict. [Emphases supplied]

In connection therewith, Article 2180 provides:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of
persons for whom one is responsible.

xxxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any business or industry.

It is not disputed that the subject cargo was lost while in the custody of Loadmasters whose employees (truck driver and helper)
were instrumental in the hijacking or robbery of the shipment. As employer, Loadmasters should be made answerable for the
damages caused by its employees who acted within the scope of their assigned task of delivering the goods safely to the
warehouse.

Whenever an employee's negligence causes damage or injury to another, there instantly arises a presumption juris tantum that
the employer failed to exercise diligentissimi patris families in the selection (culpa in eligiendo) or supervision (culpa in
vigilando) of its employees.20cralaw To avoid liability for a quasi-delict committed by its employee, an employer must overcome
the presumption by presenting convincing proof that he exercised the care and diligence of a good father of a family in the
selection and supervision of his employee.21In this regard, Loadmasters failed.

Glodel is also liable because of its failure to exercise extraordinary diligence. It failed to ensure that Loadmasters would fully
comply with the undertaking to safely transport the subject cargo to the designated destination. It should have been more
prudent in entrusting the goods to Loadmasters by taking precautionary measures, such as providing escorts to accompany the
trucks in delivering the cargoes. Glodel should, therefore, be held liable with Loadmasters. Its defense of force majeure is
unavailing.

At this juncture, the Court clarifies that there exists no principal-agent relationship between Glodel and Loadmasters, as
erroneously found by the CA. Article 1868 of the Civil Code provides: "By the contract of agency a person binds himself to
render some service or to do something in representation or on behalf of another, with the consent or authority of the latter." The
elements of a contract of agency are: (1) consent, express or implied, of the parties to establish the relationship; (2) the object is
the execution of a juridical act in relation to a third person; (3) the agent acts as a representative and not for himself; (4) the
agent acts within the scope of his authority.22

Accordingly, there can be no contract of agency between the parties. Loadmasters never represented Glodel. Neither was it ever
authorized to make such representation. It is a settled rule that the basis for agency is representation, that is, the agent acts for
and on behalf of the principal on matters within the scope of his authority and said acts have the same legal effect as if they
were personally executed by the principal. On the part of the principal, there must be an actual intention to appoint or an
intention naturally inferable from his words or actions, while on the part of the agent, there must be an intention to accept the
appointment and act on it.23cralaw Such mutual intent is not obtaining in this case.

What then is the extent of the respective liabilities of Loadmasters and Glodel? Each wrongdoer is liable for the total damage
suffered by R&B Insurance. Where there are several causes for the resulting damages, a party is not relieved from liability, even
partially. It is sufficient that the negligence of a party is an efficient cause without which the damage would not have resulted. It is
no defense to one of the concurrent tortfeasors that the damage would not have resulted from his negligence alone, without the
negligence or wrongful acts of the other concurrent tortfeasor. As stated in the case of Far Eastern Shipping v. Court of
Appeals,24

X x x. Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not
have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the
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Transpo – 5 Loadmasters Customs Services Inc., v Glodel Brokerage Corp.
responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that
the duty owed by them to the injured person was not the same. No actor's negligence ceases to be a proximate cause merely
because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as
though his acts were the sole cause of the injury.

There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage.
Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in
combination the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion
each contributed to the injury and either of them is responsible for the whole injury. Where their concurring negligence
resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting damage under
Article 2194 of the Civil Code. [Emphasis supplied]

The Court now resolves the issue of whether Glodel can collect from Loadmasters, it having failed to file a cross-claim against
the latter.

Undoubtedly, Glodel has a definite cause of action against Loadmasters for breach of contract of service as the latter is primarily
liable for the loss of the subject cargo. In this case, however, it cannot succeed in seeking judicial sanction against Loadmasters
because the records disclose that it did not properly interpose a cross-claim against the latter. Glodel did not even pray that
Loadmasters be liable for any and all claims that it may be adjudged liable in favor of R&B Insurance. Under the Rules, a
compulsory counterclaim, or a cross-claim, not set up shall be barred.25cralaw Thus, a cross-claim cannot be set up for the first
time on appeal.

For the consequence, Glodel has no one to blame but itself. The Court cannot come to its aid on equitable grounds. "Equity,
which has been aptly described as 'a justice outside legality,' is applied only in the absence of, and never against, statutory law
or judicial rules of procedure."26cralaw The Court cannot be a lawyer and take the cudgels for a party who has been at fault or
negligent.

WHEREFORE, the petition is PARTIALLY GRANTED. The August 24, 2007 Decision of the Court of Appeals is MODIFIED to
read as follows:

WHEREFORE, judgment is rendered declaring petitioner Loadmasters Customs Services, Inc. and respondent Glodel
Brokerage Corporation jointly and severally liable to respondent R&B Insurance Corporation for the insurance indemnity it paid
to consignee Columbia Wire & Cable Corporation and ordering both parties to pay, jointly and severally, R&B Insurance
Corporation a] the amount of P1,896,789.62 representing the insurance indemnity; b] the amount equivalent to ten (10%)
percent thereof for attorney's fees; and c] the amount of P 22,427.18 for litigation expenses.

The cross-claim belatedly prayed for by respondent Glodel Brokerage Corporation against petitioner Loadmasters Customs
Services, Inc. is DENIED.

SO ORDERED.

CASE DIGEST

FACTS: R&B Insurance issued a Marine Policy in favor of Columbia to insure the shipment of 132 bundles of electric copper
cathodes against All Risks.

Columbia engaged the services of Glodel for the release and withdrawal of the cargoes from the pier and the subsequent
delivery to its warehouses/plants.

Glodel, in turn, engaged the services of Loadmasters for the use of its delivery trucks to transport the cargoes to Columbia’s
warehouses/plants in Bulacan and Valenzuela City.

The goods were loaded on board twelve trucks owned by Loadmasters, driven by its employed drivers and accompanied by its
employed truck helpers.

The cargoes in six truckloads for Valenzuela City were duly delivered. However, of the six trucks en route to Bulacan, only five
reached the destination. One truck failed to deliver its cargo.

The said truck was later recovered but without the copper cathodes. Columbia filed with R&B Insurance a claim for insurance
indemnity. R&B Insurance paid Columbia the amount of ₱1,896,789.62 as insurance indemnity.
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Transpo – 5 Loadmasters Customs Services Inc., v Glodel Brokerage Corp.

R&B Insurance, thereafter, filed a complaint for damages against both Loadmasters and Glodel, seeking reimbursement of the
amount it had paid to Columbia for the loss of the subject cargo.

The RTC held Glodel liable for damages for the loss of the subject cargo and was ordered to pay R&B Insurance.

On appeal, the CA rendered the assailed decision holding Loadmasters liable to appellant Glodel for the insurance indemnity
which Glodel had to pay to R&B Insurance Corporation.

Hence, Loadmasters filed the present petition.

ISSUES:

Whether or not Glodel and Loadmasters are common carriers.

RULING:

1.

Loadmasters is a common carrier because it is engaged in the business of transporting goods by land, through its trucking
service. It is a common carrier as distinguished from a private carrier wherein the carriage is generally undertaken by special
agreement and it does not hold itself out to carry goods for the general public.

The distinction is significant in the sense that “the rights and obligations of the parties to a contract of private carriage are
governed principally by their stipulations, not by the law on common carriers.”

In the present case, there is no indication that the undertaking in the contract between Loadmasters and Glodel was private in
character. There is no showing that Loadmasters solely and exclusively rendered services to Glodel.

In fact, Loadmasters admitted that it is a common carrier.

In the same vein, Glodel is also considered a common carrier within the context of Article 1732. In its Memorandum, it states that
it “is a corporation duly organized and existing under the laws of the Republic of the Philippines and is engaged in the business
of customs brokering.”

It cannot be considered otherwise because as held by this Court in Schmitz Transport & Brokerage Corporation v. Transport
Venture, Inc., a customs broker is also regarded as a common carrier, the transportation of goods being an integral part of its
business.

2.

Loadmasters and Glodel, being both common carriers, are mandated from the nature of their business and for reasons of public
policy, to observe the extraordinary diligence in the vigilance over the goods transported by them according to all the
circumstances of such case.

When the Court speaks of extraordinary diligence, it is that extreme measure of care and caution which persons of unusual
prudence and circumspection observe for securing and preserving their own property or rights. This exacting standard imposed
on common carriers in a contract of carriage of goods is intended to tilt the scales in favor of the shipper who is at the mercy of
the common carrier once the goods have been lodged for shipment. Thus, in case of loss of the goods, the common carrier is
presumed to have been at fault or to have acted negligently.
The Civil Code provides that the exercise of extraordinary diligence lasts from the time the goods are unconditionally placed in
the possession of, and received by, the carrier for transportation until the same are delivered, actually or constructively, by the
carrier to the consignee, or to the person who has a right to receive them.

This presumption of fault or negligence, however, may be rebutted by proof that the common carrier has observed extraordinary
diligence over the goods.

3.
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Transpo – 5 Loadmasters Customs Services Inc., v Glodel Brokerage Corp.
Doubtless, R&B Insurance is subrogated to the rights of the insured to the extent of the amount it paid the consignee under the
marine insurance, as provided under Article 2207 of the Civil Code.

As subrogee of the rights and interest of the consignee, R&B Insurance has the right to seek reimbursement from either
Loadmasters or Glodel or both for breach of contract and/or tort.

Premises considered, the Court is of the view that both Loadmasters and Glodel are jointly and severally liable to R & B
Insurance for the loss of the subject cargo. Under Article 2194 of the New Civil Code, “the responsibility of two or more persons
who are liable for a quasi-delict is solidary.”