ManilaEN BANC
DON
LUCIANO
CORDOBA,
Plaintiff-Appellant,
G.
R.
No. 17
August
26, 1901
-versus-
WARNER, BARNES &
CO.,
Defendants-Appellees.
D E C I S I
O N
SMITH, J:
This action was commenced
in the Court of First Instance, Intramuros (Manila), by the plaintiff,
Cordoba, to recover from the defendants, Warner, Barnes & Co., the
sum of $479.57, Mexican currency, the value of certain merchandise
alleged
to have been short delivered by them as common carriers of the
plaintiff,
with 50 per cent of such value added as liquidated damages and also the
costs of suit. In the court below judgment went for the defendants and
plaintiff appealed.
The record discloses
without contradiction that some time prior to June, 1900, the firms of
Cahn, Nickelsberg & Co. and Trieste & Co. delivered at San
Francisco,
California, to the Pacific Main Steamship Company on board its
steamship
Rio de Janeiro, for shipment to Manila via Hongkong, twenty cases of
shoes
and five cases of hats, respectively, freight prepaid as per
"accountable
receipt" or "way-bill." The goods were consigned to plaintiff, Manila,
and properly marked with his name. On arrival at Hongkong they were
delivered
by the Pacific Mail to the steamer Diamante in good condition, for
transshipment
to Manila Bay, at which place the vessel arrived June 11, 1900, under
consignment
to the defendants. Ten days later the five cases of hats and six of the
twenty cases of shoes were discharged into the lighters of Carman &
Co., agents of the plaintiff, empowered to receive and transport them
from
the ship's side to the custom-house.
The court finds as
a fact and the managing agent of the defendants positively testifies
that
before receiving the consignment of plaintiff, Carman & Co. called
the attention of the defendants to the condition of the cases, and then
and there protested their receipt on account of their "bad condition."
Nevertheless, the carrier, without verifying the contents of the
packages
and without demanding an examination of them on board, voluntarily
delivered
them to the lighter men who, under customs supervision and control,
brought
them to the custom-house, where they were deposited in the bodega set
apart
for broken packages.
On the 25th and 27th
of June, 1900, and while the goods were still in the custom-house, the
plaintiff wrote to the defendants, notifying them that the five cases
of
hats and the six cases of shoes bore evidence of having been tampered
with,
and asking that they name a representative to be present at the customs
examination of the cases in order to note any shortage which might be
disclosed
thereby. Warner, Barnes & Co. named Señor Abreu as their
representative
for the purpose, and he, conjointly with the customs officials,
examined
the cases in bad condition and reported to his principals that the
packages
were short 119 hats and 9 pairs of shoes. The merchandise found in the
cases was received by the plaintiff from the custom-house some time
subsequent
to the 29th of June 1900, on which date the duties were paid.
Notwithstanding
the report of their representative, the defendants declined to settle
the
claim presented for the missing goods, first, because the protested
packages
were not opened and examined before they left the ship's side as
required
by the bill of lading, and second, because the claim of loss was not
presented
within twenty-four hours after delivery of the goods to the lighter for
transportation to the custom-house. Both contentions of defendants were
sustained by the court below in the suit which was subsequently
commenced
against them, and plaintiff appealed.
In Our opinion neither
one nor the other of the defenses set up by the consignees of the
vessel
was well founded. The Bill of Lading which provides that "in the event
of any packages being refused on account of condition, they are, if in
bad order, to be examined on board the steamer and contents certified
to,
when steamer's responsibility will cease," gave to the defendants the
undoubted
right to retain on board and to examine all refused packages. This
right,
however, being exclusively for their own protection, they could waive
it
and they did waive it by discharging the goods, notwithstanding the
protest,
and accepting a receipt which specified on its face that the cases were
in "bad condition" when delivered for transportation to the
custom-house.
It lay wholly with the carrier to say whether the goods should or
should
not be discharged from the vessel without examination, and having
voluntarily
elected to so discharge them the respondents can not now be permitted
to
urge that the failure to examine the cases on board was a bar to the
claim
of appellant. If the goods had been examined on board the failure of
the
consignees to give the certificate of shortage prescribed by the bill
of
lading would have constituted no defense to the action, and on the same
principle their failure to retain and examine the packages after
protest
made can not be held to prejudice the rights of the plaintiff.
Respondents claimed
on the hearing of this appeal that the duplicate receipt offered in
evidence
by the appellants could not be accepted as evidence, for the reason
that
on its face it appeared to have been written in different inks and by
different
persons. If the duplicate receipt was fictitious or manufactured for
the
occasion it could have been shown in a moment by the production of the
original delivered to the carrier when the goods were discharged, and
the
failure to do so by defendants must be considered against them and as
fatal
to their contention.
Defendants' second
defense - that plaintiff's suit must fail because his claim was not
presented
to the carrier or consignees of the vessel within twenty-four hours
after
receipt of the goods - can not be sustained for the reason that
plaintiff's
claim was presented not later than the 27th of June, 1900, and he did
not
receive his consignment within the meaning of article 366 of the
Commercial
Code before the 29th of the same month. The discharge of the
merchandise
into the lighters of Carman & Co. for delivery at the custom-house
under customs supervision and control was not "the receipt of the
merchandise"
contemplated by Article 366. The packages were then in the hands of the
Government, and their owner could exercise no dominion whatever over
them
until the duties were paid or secured to be paid. The time prescribed
by
Article 366 within which claims must be presented does not begin to run
until the consignee has received such possession of the merchandise
that
he may exercise over it the ordinary control pertinent to ownership.
For
these reasons the judgment of the Court below must be reversed without
special finding of costs, and it is so ordered.
Arellano, C.J.,
Torres, Cooper, Willard, Ladd and Mapa, JJ., concur. |