FIRST
DIVISION
PIO IVANCICH,
Petitioner,
G.
R.
No. 924
May
1,
1902
-versus-
ARTHUR F.
ODLIN,JUDGE
OF THE COURT
OF FIRST
INSTANCEOF THE
CITY OF
MANILA
AND PACIFIC EXPORT
LUMBER
COMPANY,
A CORPORATION,
Respondents.
D E C I S I
O N
ARELLANO, C.J. :
On the 18th of the
current
month, the Judge of Part II of the Court of First Instance of the City
of Manila directed the attachment of the Austrian steamer Marguerite,
with
her tackle, furniture, and other appurtenances, and ordered that all
persons
claiming any interest in the said vessel, or who could show cause why
she
should not be sold as prayed for in the libel filed in the said court,
be notified to appear before the said court within the term assigned.
This
Order was made
by the Judge on a libel filed by the Pacific Export Lumber Company, a
corporation,
in which the court was prayed to "issue process against the master and
against the said vessel, and that all persons claiming any interest
therein
may be cited to appear and answer the complaint above set forth, and
that
this honorable court fix and decree the damages and general average
due,
as aforesaid, to the libellant, with the costs and attorney's fees, and
that the said vessel may be condemned and sold to pay the same, and for
such further relief as in law and justice may be proper."
The
facts stated are:
[1] That
the captain
of the said steamer, contrary to the conditions of a charter party
between
the owners of the vessel and the Pacific Export Lumber Company, caused
the vessel to deviate from her proper course, on account of her not
being
in a seaworthy condition or able to perform the service for which she
was
delivered by the said owners to the libellant; that the steamer was
without
a sufficient stock of coal, and consequently was obliged to touch at
Honolulu,
where fuel was taken aboard, and that the libellant was obliged to pay
the harbor dues of the port of Honolulu and to pay for the coal
purchased,
and in addition the cost of stowing the same, the amount of these
expenditures
and advances being $4,327.90, United States currency.
[2] That
the loss of
time occasioned by this deviation was five days and a half, and that
the
said advances, payments, and loss of time constitute a general average
loss for their respective shares which the owners of the said steamer
and
the consignees of the cargo are liable, and that the owners of the
steamer
refuse to contribute their share.
[3] That
upon reaching
Manila the owners of the steamer obtained, through the medium of the
Austrian
consul, the retention, by the Quartermaster Department of the United
States
Army, of the freights due the plaintiff corporation, thereby causing
the
latter damages in the sum of $26,000, United States currency.
[4] That
after the
said steamer was discharged there were 4,000 tons of coal remaining in
the bunkers, of the value of 13 pesos a ton, for which the owners
refused
to pay the plaintiff corporation, to its damage in the sum of 4,200
pesos,
Mexican currency.
[5] That
upon the
arrival
at this port of the said steamer, the owners and the master thereof
refused
to call for a general average contribution, and refused to call upon
the
consignees of the cargo to sign a general average bond, as requested by
the plaintiff corporation, thereby damaging the latter in the sum of
$500,
United States currency.
The
captain, being
cited as above, appeared by his attorneys, and moved the court to
dissolve
the attachment and to dismiss the libel on the ground that the latter
was
a nullity. On the 24th of this month the motion was argued, and was
overruled
by the court.
These
are the
antecedents
of the action brought by the said captain against the judge and the
corporation
above mentioned. He seeks to obtain from this court the issue of a writ
of prohibition against the Hon. Arthur F. Odlin and against Attorney
Oscar
Sutro, as representative of the libellants, prohibiting the judge from
continuing to take cognizance of the case, the trial of which had been
commenced, as he has commenced to do, and from detaining the steamer
upon
an ex parte libel, and to prohibit Attorney Sutro from continuing to
prosecute
the suit and seeking the detention of the steamer without actual
parties
to the proceeding, as required by the provisions of Chapter 6 of the
Code
of Civil Procedure, and asks that both of them be prohibited from
detaining
the said steamer unless this be done in accordance with the provisions
of Chapter 18 of the Code.
The
prayer for relief
seems to indicate that this Court is asked to lay two prohibitions upon
the judge of the inferior court, one prohibiting him from taking
cognizance
of the case, unless he acts in accordance with the provisions of
Chapter
18 of the Code of Civil Procedure, and the other restraining him from
taking
cognizance of the case with reference to the detention of the steamer
upon
an ex parte complaint.
The
petition for the
first prohibition is based on the allegation that the judge, in
overruling
petitioner's motion on the 23rd instant, takes the ground that the word
"admiralty used in Section 4 of Article 56 of the Organic Act passed by
the United States Philippine Commission ex priore vigore brought to the
court all the procedure in use in the maritime courts of the United
States;
that he sustains his jurisdiction to entertain a libel in rem against a
vessel without personality to be sued, and insists upon his
jurisdiction
to attach the steamer without any of the formalities prescribed by law,
and declares his intention to continue to exercise it unless prohibited
by this court; and that the petitioner is deprived of the command of
the
vessel, and the owners thereof of the profits which they might
otherwise
earn were the vessel free, and that they are furthermore caused damages
by reason of the cost of maintaining the vessel, which alone amounts to
$200 per diem.
The
ground upon which
the second prohibition is sought is that the attachment ordered by the
court is not such an attachment as is authorized by Articles 424 et
seq. of the Code of Civil Procedure of the Philippine Islands, but
on the contrary is an attachment under a procedure not in force here,
although
it is in force in the United States of America in maritime cases, and
that
the attachment, moreover, was levied without affidavit, bond, or any of
the securities established by law whereby the owners of the steamer can
obtain reparation for any damages which may be occasioned them by the
unlawful
detention of the said steamer; and that the procedure of the court
below
is devoid of all the formal requisites established by law for the
levying
of such attachments.
Had a
case such as
this occurred in the time of the Spanish sovereignty, there would have
been no difficulty in finding laws applicable to it, for it is certain
that in the Philippines we had a complete legislation, both substantive
and adjective, under which to bring an action in rem against a vessel
for
the purpose of enforcing certain liens. The substantive law is found in
Article 580 of the Code of Commerce. This enumerates in the order of
preference
ten classes of liens, and a case such as the present would fall under
the
eight class, which refers to furnishing a vessel with provisions and
fuel
on her last voyage - one of the liens alleged by the plaintiff
corporation
in the case which gave rise to this petition for a writ. The procedural
law is to be found in Article 584 of the same Code, which provides:
"Vessels
subject to the liens mentioned in Article 580 may be attached and sold
judicially in the manner provided in Article 579, in any port in which
they may be found, at the instance of any creditor, subject to the
exceptions
enumerated in the same article."
The
reason why
provisions
of adjective law are to be found in a code which purports to be
substantive
law is that the old Law of Civil Procedure of the Philippines was
promulgated
prior to the Code of Commerce now in force in the Philippines, and in
this
Code of Commerce certain changes were made which were not to be found
in
the old Code of 1829. At all events, the judge would then have
proceeded
in accordance with the provisions of Article 580 for the purpose of
determining
the existence of the right, and for procedure would have turned to
Articles
584 and 579, not overlooking the provisions of Articles 1526 and 1527
of
the Law of Civil Procedure. These articles refer to attachment
proceedings
in mercantile matters, the words "and fuel" for the provisioning of the
vessel, found in Section 8 of Article 580 of the Code of Commerce,
being
regarded an extension of Section 4 of Article 1526, which designates
the
charterers or masters of vessels as debtors liable for victuals
supplied
for their equipment; and the same remark applies to Section 4 of
Article
1527. Hence the judicial procedure for the attachment and sale of a
vessel
is defined in the articles above-cited of the Code of Commerce and the
old Code of Civil Procedure of the Philippines in force under the
former
Government. By proclamation of the commanding general of the American
Army
in these Islands dated August 14, 1898, all these laws were kept in
force,
and although the old Law of Civil Procedure has been repealed by the
new
Code of Civil Procedure enacted by the new Government, the Code of
Commerce
is still operative. The result is, therefore, that in the Philippines
any
vessel - even though it be a foreign vessel - found in any port of the
Archipelago may be attached and sold under the substantive law which
defines
the right, and the procedural law contained in the same Code by which
this
right is to be enforced.
There is
no necessity
for applying any other procedure while that described above is in
force,
as we understand it to be. The judge did not, therefore, act without
jurisdiction
when directing the attachment of the vessel in question, and has not
exceeded
his jurisdiction. If the excess of the jurisdiction upon which the
argument
was based consists in his having levied the attachment without the
fulfillment
of the necessary conditions and without following the form prescribed
by
some law of procedure applicable to the case, it is our opinion that
this
error is not such an excess of jurisdiction as can be cured by
prohibition,
and the petitioner has other means whereby this error of procedure may
be corrected or remedied. Upon these grounds we decide that the
petition
for a writ of prohibition must be denied, with the costs to petitioner,
and it is so ordered.
Torres, Cooper,
Willard,
Ladd and Mapa, JJ., concur. |