SECOND DIVISION
WALLEM PHILIPPINES
SHIPPING, INC. AND
SEACOAST MARITIME
CORPORATION,
Petitioners,
G.R.
No.
152158
February 7, 2003
-versus-
PRUDENTIAL GUARANTEE
& ASSURANCE, INC.chanrobles virtual law library
AND COURT OF APPEALS,
Respondents.chanrobles virtuallaw libraryred
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D E C I S I O N
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MENDOZA,
J.: chanrobles virtuallaw libraryredary
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This is a Petition
for Review on
Certiorari of
the Decision, dated January 31, 2001, and
resolution,
dated February 14, 2002, of the Court of Appeals,[1]
which reversed the decision, dated September 21, 1995, of the Regional
Trial Court, Branch 134, Makati City in Civil Case No. 91-1053,
entitled
"Prudential Guarantee & Assurance Inc. v. Wallem Philippines
Shipping
Inc. and Seacoast Maritime Corporation."chanrobles virtuallaw libraryred
The background of this
case is as follows:chanrobles virtuallaw libraryred
On April 17, 1991, private
respondent Prudential Guarantee & Assurance Inc. (Prudential)
brought
an action for damages and attorney’s fees against Wallem Philippines
Shipping,
Inc. (Wallem) and Seacoast Maritime Corporation (Seacoast). The
complaint
was filed with the Regional Trial Court of Makati City, where it was
docketed
as Civil Case No. 91-1053, and assigned to Branch 134 thereof. Private
respondent Prudential sought the recovery of the sum of P995,677.00,
representing
the amount it had paid to its insured, General Milling Corporation
(GMC),
for alleged shortage incurred in the shipment of "Indian Toasted
Soyabean
Extraction Meal, Yellow," with 6% legal interest thereon from the date
of filing of the complaint up to and until the same is fully paid, and
25% of the claim as attorney’s fees.[2]
In its answer, Wallem
denied liability for damage or loss to the shipment. It was alleged
that
the complaint did not state a cause of action against it; that
Prudential,
Wallem, and Seacoast were not the real parties-in-interest; that the
action
had prescribed; that the damage or loss, if any, was due to the
inherent
vice or defect of the goods, or to perils, dangers, and accidents of
the
sea, for which Wallem was not liable; that the damage or loss to the
shipment
was due to an act or omission of Prudential or the owner of the goods
or
their representative, or to pre-shipment damage, for which Wallem was
not
liable; that the shipment was carried on a "shipper’s description of
packages
and contents," "said to weigh," "in bulk," and "free out" basis; that
based
on the provisions of the bill of lading, Prudential had the burden of
proving
the actual quantity of cargo loaded at the loading port; that
Prudential
had no contract with Wallem, which acted as a mere agent of a disclosed
principal; that Wallem had observed the diligence required under the
law
in the care of the shipment; that the shipment was discharged in the
same
quantity as when it was loaded at the port of loading; that any loss
incurred
during and after discharge from the vessel was no longer the
responsibility
of the carrier; that Wallem could not be made liable for the loss or
damage,
if any, of the goods which happened whilst the same were not in its
possession
and control; that Prudential’s claim was excessive and exaggerated;
that
Wallem’s liability, if any, should not exceed the invoice value of the
alleged loss or the applicable package limitation, whichever was lower,
or the limit of liability set in the bill of lading.chanrobles virtuallaw libraryred
Wallem filed a compulsory
counterclaim against Prudential as the complaint was allegedly a
clearly
unfounded civil action. Wallem filed a crossclaim against its
co-defendant
Seacoast, in the event that it was made liable to Prudential.[3]
Upon motion of Prudential’s counsel, defendant Seacoast was declared in
default.[4]
After termination of the pre-trial conference, this case was tried on
the
merits.chanrobles virtuallaw libraryred
To prove its claim for
indemnity, Prudential presented two witnesses: Josephine Suarez and
Alfredo
Cunanan.chanrobles virtuallaw libraryred
Josephine Suarez, the
claims processor of Prudential, testified that in March 1991 she
received
a claim from GMC in connection with its shipment which arrived on board
M/V Gao Yang (Exh. A). Upon receipt of the claim and its supporting
papers,
she referred the same to Tan-Gatue Adjustment Company, Inc.
(Tan-Gatue),
which submitted a report (Exhs. G to G-8). Upon her recommendation,
Prudential
paid GMC the sum of P995,677.09, as evidenced by receipts and a voucher
(Exhs. H, I, and K). GMC then issued a subrogation receipt to
Prudential
(Exh. J), which in turn sent a demand letter to Wallem (Exh. L).chanrobles virtuallaw libraryred
On cross-examination,
Ms. Suarez admitted that she had no participation in the preparation of
the documents (Exhs. A to G) submitted to her, and that she had based
her
recommendation to pay GMC’s claim on said documents. She also admitted
that she did not do anything to verify the genuineness of Bill of
Lading
BEDI/1(Exh. B) and Commercial Invoice No. 1401 (Exh. C). She said that
GMC had been paid 20% more than its alleged loss.[5]chanrobles virtuallaw libraryred
Alfredo Cunanan, senior
cargo surveyor of Tan-Gatue declared that he conducted in March 1990 a
survey of the shipment on board M/V Gao Yang at GMC’s warehouse at
Tabangao,
Batangas. Cunanan was present during the unloading of the shipment. He
saw the cargo discharged from the vessel by the use of a suction
device,
wherein the cargo passed into a conveyor and weighed unto GMC’s
automatic
scale. The quantity recorded on GMC’s scale was thereafter compared
with
that indicated in the bill of lading. At that point a shortage was
discovered.
The survey report prepared by Cunanan stated in pertinent part:chanrobles virtuallaw libraryred
RECAPITULATIONchanrobles virtuallaw libraryred
1) Shipment Per Stowage
Plan - 4,417.000 M/Tonschanrobles virtuallaw libraryred
Outturn Per Consignee’schanrobles virtuallaw libraryred
Scale - 4,121.318 M/Tonschanrobles virtuallaw libraryred
Shortage - 295.682 M/Tonschanrobles virtuallaw libraryred
2) Shipment Per Bill
of Lading - 4,415.350 M/Tonschanrobles virtuallaw libraryred
Outturn Per Consignee’schanrobles virtuallaw libraryred
Scale - 4,121.318 M/Tonschanrobles virtuallaw libraryred
Shortage - 294.032 M/Tons[6]chanrobles virtuallaw libraryred
On cross-examination,
Cunanan testified that no cargo was left on the M/V Gao Yang after the
discharging process. He admitted that his basis for determining the
weight
of the shipment prior to unloading was the Certificate of Weight (Exh.
F-3) furnished by GMC, as to which preparation he did not participate.
He further explained that, as per the Certificate of Weight, the cargo
had been packed in bags at the port of origin. The bags were then
conveyed
to midstream in barges alongside the vessel and hauled up onto the
steamer.
The bags were later cut open at their mouths and the contents emptied
onto
the ship’s storage areas, specifically Hatch Nos. One Lower Hold, One
Tween
Deck, Five Lower Hold, Five Tween Deck, Two Tween Deck, and Four Tween
Deck.[7]
He also admitted that the lack of a draft survey due to the absence of
a surveyor appointed by Wallem was based merely on information gathered
from one of his surveyors.chanrobles virtuallaw libraryred
In the course of the
discharging and weighing operations, one of Tan-Gatue’s assigned
surveyors
registered a protest as there were blurred notations on GMC’s weighing
scale. They found that the scale had not been properly calibrated and
that
it showed a discrepancy of approximately 130 metric tons. Upon
recommendation
of Tan-Gatue, a reweighing was done on April 26, 1990 with the use of
another
scale. Wallem’s representative was not notified of this reweighing,
which
was made by loading the cargo on the truck for delivery to consignee’s
receivers. Reloading on the trucks was also made through the use of a
suction
tube. An alleged shortage of 164.4 metric tons was found, which was
significantly
lower than the shortage stated in the recapitulation above.[8]chanrobles virtuallaw libraryred
Part of Cunanan’s report
contained an opinion stating that the shortage may be attributed to the
spillage incurred during the transit and loading of the shipment to the
vessel at the port of origin for the following reasons: (1) the said
shipment
was originally packed in bags prior to loading to carrier vessel; (2)
the
weighing of the said shipment made prior to its loading to the carrier
vessel became the basis of the quantity stated in the bill of lading;
and
(3) the bagged shipment, after weighing over the weighbridge scale, was
conveyed to midstream in barges alongside the vessel and hauled up onto
the steamer, after which the mouths of the bags were cut open and the
contents
emptied into ship hatches.[9]chanrobles virtuallaw libraryred
After weighing in Batangas,
the bagged shipment was delivered to GMC’s warehouse in Bo. Ugong,
Pasig,
Metro Manila, and to Filstream and Universal Robina Corp., as direct
receivers
of GMC.[10]
Because of the shortage, GMC filed a claim against Prudential, being
its
insurer.chanrobles virtuallaw libraryred
For its part, petitioner
Wallem, as defendant below, presented three witnesses: Romualdo De
Belen,
manager of its documentations department, Rio Puriran, marine cargo
surveyor
of Oceanica Cargo Marine Surveyor (Oceanica), and Edilberto Mendoza,
Wallem’s
operations manager.chanrobles virtuallaw libraryred
Romualdo De Belen testified
that he was the claims supervisor for Wallem from January 1991 to
August
1991. As such, he was tasked to gather all documents of a claim and to
submit them to the Protective and Indemnity Club (P&I), which in
turn
handles all claims pertaining to a vessel which is a member thereof. In
connection with the claim subject matter of this case, De Belen
collected
the pertinent documents, like the bill of lading (Exh. 1), the general
statement of facts (Exhs. 2 and 2-A), the survey certificate (Exhs. 3
and
3-A), and the inward foreign manifest (Exh. 4).[11]chanrobles virtuallaw libraryred
After his investigation,
he found that the weight stated in the bill of lading was less than
what
was actually discharged. The bill of lading stated that the weight of
the
cargo was 4,415 metric tons, but the actual weight discharged was 4,418
metric tons. The overage was based on the bill of lading, which
contained
the weight as declared by the shipper, and the survey certificate,
which
contained the weight of the total cargo discharged representing the
difference
between the initial and final displacement of the vessel.[12]chanrobles virtuallaw libraryred
De Belen noted that
the bulk cargo declared in the bill of lading was "said to weigh"
4,415.35
metric tons. He explained that the phrase "said to weigh" means that
nobody
really knows the actual weight of the cargo; the weight of the cargo
written
on the bill of lading and on the manifest being based only on the
declaration
of the shipper.[13]chanrobles virtuallaw libraryred
On cross-examination,
De Belen admitted that he collected the documents respecting GMC’s
claim
only upon receipt of the summons in this case. He also stated that he
based
his finding of overage on the survey certificate (Exh. 3).[14]chanrobles virtuallaw libraryred
Rio Puriran, an employee
of Oceanica, described the procedure in preparing the draft survey
which
would become the basis for the survey certificate. He testified that
the
draft mark is taken and the known cargo weight is sounded so that the
displacement
of the ship may be computed and the weight of the cargo unloaded known.
He identified the signatures of Cornelio Damaso, Oceanica’s operations
manager, and Arnel Plaza, the surveyor assigned to the vessel on the
survey
certificate (Exh. 3-A). On cross-examination, he admitted that he had
no
participation in conducting the survey covered by the survey
certificate
marked as Exhibits 3 to 3-A.[15]
Edilberto Mendoza, Wallem’s
operations manager, declared that a representative was sent to oversee
the discharging of its cargo when the M/V Gao Yang arrived in Batangas.
He tendered a Notice of Readiness (Exh. 6) to GMC and assigned Oceanica
to conduct a draft survey and issue a survey certificate (Exhs. 3 to
3-B).
The unloading of the cargo was undertaken by GMC per the "free out"
notation
on the bill of lading (Exh. 1-A). Mendoza stated that "free out" means
that the vessel is free from any expenses and discharging operations
for
the cargo. It is the cargo receiver who has the responsibility to get
their
cargo. After discharge of the cargo, Wallem’s representative prepared a
general statement of facts (Exhs. 5 and 5-A).[16]chanrobles virtuallaw libraryred
On cross-examination,
Mendoza admitted that he was not present when the cargo was discharged
from the vessel and that he had no participation in the preparation of
the general statement of facts (Exhs. 5 to 5-A) and the notice of
readiness
(Exh. 6).[17]chanrobles virtuallaw libraryred
The trial court resolved
whether there was indeed a shortage in the shipment and whether Wallem
could be held liable for the shortage.[18]
The trial court ruled that private respondent Prudential failed to
prove
by clear, convincing, and competent evidence that there was a shortage
in the shipment. The trial court said that private respondent
Prudential
failed to establish by competent evidence the genuineness and due
execution
of the bill of lading and, therefore, the true and exact weight of the
shipment when it was loaded unto the vessel. Hence, there was no way by
which a shortage could be determined. The trial court ruled that the
shortage,
if any, could only have been incurred either before the loading of the
shipment, as stated in the final report (Exhs. G to G-8), or after the
unloading of the shipment from the vessel, the latter instance being
admitted
by Prudential’s own witness, Mr. Alfredo Cunanan. Accordingly, the
trial
court dismissed both the complaint and the counterclaim.chanrobles virtuallaw libraryred
On appeal, the Court
of Appeals reversed. The dispositive portion of its decision reads:chanrobles virtuallaw libraryred
WHEREFORE, judgment
is hereby rendered REVERSING the appealed decision. A new one is
entered
ordering defendants-appellees Wallem and Seacoast to pay, jointly and
severally,
plaintiff-appellant Prudential the amount of P796,541.672, plus 6%
interest
from April 17, 1991, date of filing of the complaint, until fully paid,
plus costs of the suit.chanrobles virtuallaw libraryred
SO ORDERED.[19]chanrobles virtuallaw libraryred
The Court of Appeals
ruled that the bill of lading was prima facie evidence of the goods
therein
described, both notations "said to contain" and "weight unknown" on the
bill of lading being inapplicable to shipments in bulk. Contrary to the
opinion of the trial court, it was ruled by the appeals court that
losses
were incurred during the loading operations, and that these losses were
the liability of the carrier. Finally, the Court of Appeals held that
the
principle of indemnity is violated if the insured is paid a benefit
more
than the loss incurred in the light of the admission of a 20% mark-up
on
the indemnity paid to GMC.chanrobles virtuallaw libraryred
Petitioner Wallem moved
for reconsideration, but its motion was denied.[20]
Hence, this appeal.chanrobles virtuallaw libraryred
Petitioner contends
that the Court of Appeals erred-chanrobles virtuallaw libraryred
I WHEN IT HELD THAT
THE QUANTITY OF THE CARGO REFLECTED IN THE BILL OF LADING IS CONCLUSIVE
AS TO THE ACTUAL CARGO OF THE CONSIGNEE NOTWITHSTANDING THE FACT THAT
SAID
CARGO WAS SHIPPED ON A "SAID TO WEIGH" BASIS. SAID DECISION IS CONTRARY
TO ESTABLISHED PRINCIPLES IN MARITIME LAW AND SEC. 11 OF THE CARRIAGE
OF
GOODS BY SEAS ACT WHERE IT IS STATED THAT:chanrobles virtuallaw libraryred
When under the custom
of any trade the weight of any bulk cargo inserted in the bill of
lading
is a weight ascertained or accepted by a third party other than the
carrier
or the shipper and the fact that the weight as ascertained or accepted
is stated in the bill of lading, then notwithstanding anything in this
Act, the bill of lading shall not be deemed prima facie evidence
against
the carrier of the receipt of goods of the weight so inserted in the
bill
of lading, and the accuracy thereof at the time of shipment shall not
be
deemed to have been guaranteed by the shipper.chanrobles virtuallaw libraryred
I.
A IN DISREGARDING
THE
WELL ESTABLISHED PRINCIPLE IN ADMIRALTY LAW THAT THE BURDEN OF PROOF
RESTS
ON THE PLAINTIFF THAT THE WEIGHT OR QUANTITY ALLEGED HAD IN FACT BEEN
SHIPPED,
OTHERWISE, THE DEFENDANT IS UNDER NO OBLIGATION TO PROVE HIS EXCEPTION
OR DEFENSE AS HELD IN THE CASE OF BELEN VS. BELEN, 13 PHIL. 202.chanrobles virtuallaw libraryred
II.
B IN RULING THAT THE
PRINCIPLE ON PRESUMED NEGLIGENCE IS APPLICABLE IN THIS CASE CONSIDERING
THAT THE FACT OF SHORTAGE WAS NEVER DULY PROVEN. AS HELD IN PLANTERS
PRODUCTS,
INC. VS. CA, 226 SCRA 476, IT IS ONLY AFTER THE SHIPPER HAS ESTABLISHED
LOSS OF CARGO WHILE IN THE CUSTODY OF THE VESSEL WILL THE BURDEN OF
PROOF
SHIFT TO THE COMMON CARRIER FOR IT TO PROVE THAT IT HAS EXERCISED
EXTRAORDINARY
DILIGENCE IN THE TRANSPORTATION OF GOODS OR THAT THE LOSS WAS UNDER THE
EXCEPTIONS PROVIDED BY LAW.chanrobles virtuallaw libraryred
III.
IN RULING THAT THE
SHORTAGE
WAS ATTRIBUTABLE TO THE FAULT OF HEREIN PETITIONER CONTRARY TO THE
EVIDENCE
PRESENTED WHICH WAS MADE AS BASIS FOR THE TRIAL COURT’S DECISION.
MOREOVER,
THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT STATED THAT THERE
WAS NO LOSS THAT OCCURRED DURING THE DISCHARGING OPERATIONS. AS
CORRECTLY
POINTED OUT BY THE TRIAL COURT IN ITS DECISION, THE SHORTAGE, IF ANY,
WAS
OCCASIONED DURING THE DISCHARGING OPERATIONS CITING AS BASIS HEREIN
RESPONDENT’S
OWN WITNESS.chanrobles virtuallaw libraryred
IV.
IN GRANTING RELIEF
TO
RESPONDENT-INSURER WHEN THE LATTER FAILED TO ESTABLISH HIS RIGHT OF
ACTION
AGAINST HEREIN PETITIONER THROUGH CONVINCING AND COMPETENT EVIDENCE AS
THE ORIGINAL OF THE INSURANCE POLICY WAS NEVER PRESENTED IN COURT. SAID
RULING RUNS COUNTER TO THE CASE OF HOME INSURANCE CORPORATION VS. CA,
225
SCRA 411 WHERE THIS HONORABLE COURT HELD THAT:chanrobles virtuallaw libraryred
"The insurance contract
has not been presented. It may be assumed for the sake of argument that
the subrogation receipt may nevertheless be used to establish the
relationship
between the petitioner and the consignee and the amount paid to settle
the claim. But that is all the document can do. By itself alone, the
subrogation
receipt is not sufficient to prove the petitioner’s claim x x xchanrobles virtuallaw libraryred
It is curious that the
petitioner disregarded this rule, knowing that the best evidence of the
insurance contract was its original copy, which was presumably in the
possession
of Home itself. Failure to present this original (or even a copy of
it),
for reasons the Court cannot comprehend, must prove fatal to this
petition."
We find petitioner’s
contentions to be meritorious.chanrobles virtuallaw libraryred
First. Although this
Court’s jurisdiction in a petition for review on certiorari under Rule
45 of the 1997 Rules of Civil Procedure is limited to the review of
errors
of law, we are constrained to review the evidence in view of the
conflicting
findings of fact made by the trial court and the appellate court.[21]chanrobles virtuallaw libraryred
The trial court held
that private respondent Prudential failed to prove by clear,
convincing,
and competent evidence that there was a shortage in the shipment.
Hence,
petitioner Wallem could not be held liable for the indemnity paid by
Prudential
to GMC. Prudential’s own witnesses admitted that they had no
participation
in the preparation of the documents upon which they base their claim.
They
even testified that the loss, if indeed there was any, might have been
due to the loading process or by the unloading operations conducted by
GMC. However, the Court of Appeals ruled that on the basis of the
weight
stated on the bill of lading, there was indeed a shortage, and held
that
the loss was caused in the loading process alone.chanrobles virtuallaw libraryred
We find that the Court
of Appeals erred in finding that a shortage had taken place. Josephine
Suarez, Prudential’s claims processor, merely identified the papers
submitted
to her in connection with GMC’s claim (Bill of Lading BEDI/1 (Exh. B),
Commercial Invoice No. 1401 issued by Toepfer International Asia Pte,
Ltd.
(Exh. C), SGS Certificate of Quality (Exh. F-1), and SGS Certificate of
Weight (Exh. F-3)). Ms. Suarez had no personal knowledge of the
contents
of the said documents and could only surmise as to the actual weight of
the cargo loaded on M/V Gao Yang. She admitted that she had no
participation
in the preparation of the papers upon which Prudential based its cause
of action against Wallem.chanrobles virtuallaw libraryred
ATTY. DEL ROSARIO ON
CROSS-EXAMINATIONchanrobles virtuallaw libraryred
Q Miss Witness, I would
like to refer you to Exhibits A, B, C, will you please tell us Madam
Witness,
if you have any participation in the preparation of these documents?chanrobles virtuallaw libraryred
A No sir.chanrobles virtuallaw libraryred
Q How about Exhibits
E, G, and F, did you have any participation in the preparation of these
documents?chanrobles virtuallaw libraryred
A No sir.chanrobles virtuallaw libraryred
Q And in fact these
documents were just given to you, is that correct?chanrobles virtuallaw libraryred
A Yes sir.chanrobles virtuallaw libraryred
Q And based on these
documents, you made a recommendation for the payment of the claim of
your
assured, is that correct?chanrobles virtuallaw libraryred
A Yes sir.[22]chanrobles virtuallaw libraryred
Ms. Suarez’s testimony
regarding the contents of the documents is thus hearsay, based as it is
on the knowledge of another person not presented on the witness stand.[23]chanrobles virtuallaw libraryred
Nor has the genuineness
and
due execution of these documents been established. In the absence of
clear,
convincing, and competent evidence to prove that the shipment indeed
weighed
4,415.35 metric tons at the port of origin when it was loaded on the
M/V
Gao Yang, it cannot be determined whether there was a shortage of the
shipment
upon its arrival in Batangas.chanrobles virtuallaw libraryred
Second. The Court of
Appeals erred in ruling that the contents of the bill of lading cannot
be controverted by evidence to the contrary because it was "prima facie
evidence of the goods therein described." Wallem’s evidence casts doubt
on the veracity of the documents upon which Prudential bases its claim.
As the Private and Confidential Final Report, dated October 12, 1990
(Exhs.
G to G-8), stated:chanrobles virtuallaw libraryred
We are of the opinion
that the shortage may be attributed to the spillage incurred during the
transit/loading of the shipment to the vessel at the Port of Origin for
the following reasons:chanrobles virtuallaw libraryred
1. The
said shipment was originally packed in bags prior to loading to carrier
vessel.chanrobles virtuallaw libraryred
2. The
weighing was made prior to loading to carrier vessel which is the basis
of the Bill of Lading quantity.chanrobles virtuallaw libraryred
3. The
bagged shipment, after weighing over the weighbridge scale, was
conveyed
to midstream alongside vessel in barges, hauled up on the steamer, cut
open the mouths of the bags and the contents emptied into ship hatches.[24]chanrobles virtuallaw libraryred
There could have been
no spillage while the shipment was on board the vessel because,
according
to Prudential’s witness Cunanan, the hatches were closed.[25]
Moreover, it was shown that, after the shipment was unloaded from the
vessel,
it was weighed with the use of GMC’s weighing scale, which was later
found
to be defective. Cunanan stated in his report:chanrobles virtuallaw libraryred
During the course of
discharging/weighing operation, we noted some minor discrepancy on the
weighing scale, hence, we registered our protest.chanrobles virtuallaw libraryred
We suggest to the assured
to conduct another reweighing to determine the correct quantity of the
soyabean meal unloaded from the vessel.[26]chanrobles virtuallaw libraryred
Cunanan later testified:chanrobles virtuallaw libraryred
Q And based on this
blurred notations, you presumed that there was something wrong in the
weighing
scale, is that correct?chanrobles virtuallaw libraryred
A It is a minor
discrepancy
sir, on the weighing scale.chanrobles virtuallaw libraryred
Q And by minor discrepancy,
you are actually referring to about 130.000 metric tons discrepancy?chanrobles virtuallaw libraryred
A 130 metric tons
discrepancy,
more or less.chanrobles virtuallaw libraryred
Q And how was the reweighing
made Mr. Cunanan?chanrobles virtuallaw libraryred
A The reweighing was
made by truck because the cargo was unloaded from the vessel, and it
was
stored in the big storage, storage of the consignee. Now, after hearing
our protest, that there are some minor discrepancy on the weighing
scale,
we suggest for a reweighing.chanrobles virtuallaw libraryred
The reweighing was made
by loading this cargo on board the truck for delivery to their
receivers
or to the consignees in Manila.chanrobles virtuallaw libraryred
.cralaw:red
Q In the conveyors,
did you see any spillages, on the sides, as far as these cargoes are
concerned?chanrobles virtuallaw libraryred
A There were sir, but
they were also removed and weighed.chanrobles virtuallaw libraryred
Q And these spillages
were also accumulated and made part of the cargo?chanrobles virtuallaw libraryred
A That’s correct sir.chanrobles virtuallaw libraryred
Q During the reweighing
procedure, during loading to trucks, these trucks were open?chanrobles virtuallaw libraryred
A Yes sir, they were
open.chanrobles virtuallaw libraryred
Q And the tarpaulin
placed only after the trucks are full?chanrobles virtuallaw libraryred
A That’s correct, sir.[27]chanrobles virtuallaw libraryred
Indeed, it is likely
that there was again spillage of the shipment when it was reweighed
after
its unloading in the same manner that there was spillage when the
shipment
was unloaded from the vessel. It should also be noted that the
reweighing
was conducted only on April 26, 1990, five days after the shipment was
put in the storage of the consignee.chanrobles virtuallaw libraryred
Indeed, as the bill
of lading indicated that the contract of carriage was under a "said to
weigh" clause, the shipper is solely responsible for the loading while
the carrier is oblivious of the contents of the shipment.[28]chanrobles virtuallaw libraryred
Third. Even if the shortage
can be definitively determined, Wallem still cannot be held liable
because
of the failure of Prudential to present the contract of insurance or a
copy thereof. Prudential claims that it is subrogated to the rights of
GMC pursuant to their insurance contract. For this purpose, it
submitted
a subrogation receipt (Exh. J) and a marine cargo risk note (Exh. D).
However,
as the trial court pointed out, this is not sufficient. As GMC’s
subrogee,
Prudential can exercise only those rights granted to GMC under the
insurance
contract. The contract of insurance must be presented in evidence to
indicate
the extent of its coverage. As there was no determination of rights
under
the insurance contract, this Court’s ruling in Home Insurance
Corporation
v. Court of Appeals[29]
is applicable:chanrobles virtuallaw libraryred
The insurance contract
has not been presented. It may be assumed for the sake of argument that
the subrogation receipt may nevertheless be used to establish the
relationship
between the petitioner Home Insurance Corporation and the consignee
Nestlé
Phil. and the amount paid to settle the claim. But that is all the
document
can do. By itself alone, the subrogation receipt is not sufficient to
prove
the petitioner’s claim holding the respondent Mabuhay Brokerage Co.,
Inc.
liable for the damage to the engine.chanrobles virtuallaw libraryred
It is curious that the
petitioner disregarded this rule, knowing that the best evidence of the
insurance contract was its original copy, which was presumably in the
possession
of Home itself. Failure to present this original (or even a copy of
it),
for reasons the Court cannot comprehend, must prove fatal to this
petition.chanrobles virtuallaw libraryred
WHEREFORE, the decision
and resolution of the Court of Appeals is REVERSED and the decision of
the Regional Trial Court, Branch 134, Makati City, dismissing the
complaint
and the counterclaim, is REINSTATED. No pronouncement as to costs.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Bellosillo, (Chairman),
Quisumbing, Austria-Martinez and Callejo, Sr., JJ., concur.chan
robles virtual law library
____________________________
Endnotes:cralaw:red
[1]
Per Justice Ruben T. Reyes and concurred in by Associate Justices
Presbitero
J. Velasco, Jr. and Juan M. Enriquez, Jr.
[2]
Complaint, p. 3; RTC Records, p. 3.chanrobles virtuallaw libraryred
[3]
Id., p. 5; id., p. 5.chanrobles virtuallaw libraryred
[4]
RTC Records, p. 34.chanrobles virtuallaw libraryred
[5]
TSN (Josephine Suarez), pp. 17-19, June 15, 1993.chanrobles virtuallaw libraryred
[6]
Final Report; Exh. G-3-A; RTC Records, p. 102; TSN (Alfredo Cunanan),
pp.
6-8, 10-11, Dec. 9, 1993.chanrobles virtuallaw libraryred
[7]
Id.; Exh. G; id., p. 99; id., pp. 15-19.chanrobles virtuallaw libraryred
[8]
TSN (Alfredo Cunanan), pp. 24-30, Dec. 9, 1993.chanrobles virtuallaw libraryred
[9]
Final Report; Exh. G-7; RTC Records, p. 106; TSN (Alfredo Cunanan), pp.
30-31, Dec. 9, 1993.chanrobles virtuallaw libraryred
[10]
Id.; Exh. G-4; id., p. 103.chanrobles virtuallaw libraryred
[11]
RTC Records, pp. 166-175; TSN (Romualdo De Belen), pp. 5-10, Mar. 1,
1994.chanrobles virtuallaw libraryred
[12]
TSN (Romualdo De Belen), pp. 11-12, Mar. 1, 1994.chanrobles virtuallaw libraryred
[13]
Id., pp. 13-14.chanrobles virtuallaw libraryred
[14]
Id., pp. 15-19.chanrobles virtuallaw libraryred
[15]
TSN (Rio Puriran), pp. 5-10, 12-13, Mar. 1, 1994.chanrobles virtuallaw libraryred
[16]
TSN (Edilberto Mendoza), pp. 5, 7, 9-13, 20, Apr. 26, 1994.chanrobles virtuallaw libraryred
[17]
Id., pp. 20-21.chanrobles virtuallaw libraryred
[18]
RTC Decision, p. 3, RTC Records, p. 214.chanrobles virtuallaw libraryred
[19]
CA Decision, p. 16; Rollo, p. 82.chanrobles virtuallaw libraryred
[20]
Resolution, dated Feb. 11, 2002; CA Rollo, p. 131.chanrobles virtuallaw libraryred
[21]
See Concepcion v. Court of Appeals, 324 SCRA 85 (2000).chanrobles virtuallaw libraryred
[22]
TSN (Josephine Suarez), p. 17, June 15, 1993.chanrobles virtuallaw libraryred
[23]
See Benguet Exploration, Inc. v. Court of Appeals, 351 SCRA 445 (2001).chanrobles virtuallaw libraryred
[24]
Final Report; Exh. G-7; RTC Records, p. 106.chanrobles virtuallaw libraryred
[25]
TSN (Alfredo Cunanan), p. 33, Dec. 9, 1993.chanrobles virtuallaw libraryred
[26]
Final Report; Exh. G-3; RTC Records, p. 102. See also TSN (Alfredo
Cunanan),
p. 25, Dec. 9, 1993.chanrobles virtuallaw libraryred
[27]
TSN (Alfredo Cunanan), pp. 25-26, 27, 32-33, 34, Dec. 9, 1993.chanrobles virtuallaw libraryred
[28]
Keng Hua Paper Products Co., Inc. v. Court of Appeals, 286 SCRA 257
(1998).chanrobles virtuallaw libraryred
[29]
225 SCRA 411 (1993).chanrobles virtuallaw libraryred |