EN BANC

[G.R. No. 29166. October 22, 1928.]

AUGUSTO LOPEZ , plaintiff-appellant, vs . JUAN DURUELO, ET AL. ,

defendants. ALBINO JISON , appellee.

Angel S. Gamboa for appellant.

Feria & La O for appellee.

SYLLABUS

1. SHIPPING; COLLISION; PROTEST. — The protest required by article 835 of

the Code of Commerce in case of collision between vessels is not necessary to
preserve the rights of a person aboard a motor boat engaged in conveying passengers
between ship and shore who is injured in a collision between the motor boat and the
larger vessel.
2. ID.; ID.; ID.; CASE AT BAR. — A person desirous of embarking on a ship
which was some distance away from the shore in a Philippine port took passage upon
a small motor boat, which was used in conveying passengers and luggage to and fro
between the shore and the shipside. Owing to the negligence of thep at ro n or
incompetence of the person in charge — so the complaint averred — the boat
approached too near to the stern of the ship, with the result that the propeller of the
ship, which was still turning, struck the motor boat and sunk it, injuring the plaintiff.
Held: Upon demurrer, that the failure of the complaint to allege that the plaintiff had
made protest according to article 835 of the Code of Commerce was no impediment
to the maintenance of a civil action, under articles 1902 and 1903 of the Civil Code, to
recover damages for the tort.
3. ID.; ID.; ID.; MEANING OF WORD VESSEL. — The word "vessel " (Spanish,
"buque," "nave ") used in the Third Section of Title IV, Book Third, of the Code of
Commerce, dealing with collisions, does not include all ships, craft or oating
structures of any kind without limitation. The provisions of said section do not apply to
minor craft engaged in river and bay traffic.
4. PLEADING AND PRACTICE; DEMURRER; INTERPRETATION OF PLEADING
DEMURRED TO. — A case should not be dismissed on demurrer when, under any
reasonable interpretation of the complaint, a cause of action can be made out; and the
fact that a complaint is inarti cially drawn or in a certain degree lacking in precision
constitutes no su cient reason for dismissing it on demurrer. In passing upon a
demurrer, every reasonable intendment is to be taken in favor of the pleading against
which the demurrer is directed.

DECISION

STREET , J : p

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 This action was instituted in the Court of First Instance of Occidental Negros by
Augusto Lopez, for the purpose of recovering damages for personal injuries in icted
upon him by reason of the negligence of the defendants, Juan Duruelo and Albino Jison.
The defendants demurred to the complaint, and the demurrer having been sustained,
the plaintiff elected to stand upon his complaint, which was accordingly dismissed; and
the plaintiff appealed.
The facts necessary to an understanding of the case as set out in the complaint
are brie y these: On February 10, 1927, the plaintiff, who is a resident of the
municipality of Silay, Occidental Negros, was desirous of embarking upon the
interisland steamer San Jacinto in order to go to Iloilo. This boat was at the time in the
anchoring ground of the port of Silay, some half a mile distant from the port. The
plaintiff therefore embarked at the landing in the motor boat Jison, which was then
engaged in conveying passengers and luggage back and forth from the landing to
boats at anchor, and which was owned and operated by the defendant Albino Jison,
with Juan Duruelo as patron. The engineer (maquinista) aboard on this trip was one
Rodolin Duruelo, a boy of only 16 years of age. He is alleged to have been a mere novice
without experience in the running of motor boats; and the day of the occurrence now in
contemplation is said to have been the third day of his apprenticeship in this capacity. It
is alleged that the Jison, upon this trip, was grossly overladen, having aboard fourteen
passengers, while its capacity was only for eight or nine.
As the motor boat approached the San Jacinto in a perfectly quiet sea, it came
too near to the stern of the ship, and as the propeller of the ship had not yet ceased to
turn, the blades of the propeller struck the motor boat and sank it at once. It is alleged
in the complaint that the approach of the Jison to this dangerous proximity with the
propeller of the San Jacinto was due to the fault, negligence and lack of skill of the
defendant Juan Duruelo, as patron of the Jison. As the Jison sank, the plaintiff was
thrown into the water against the propeller, and the revolving blades in icted various
injuries upon him, consisting of a bruise in the breast, two serious fractures of the
bones of the left leg, and a compound fracture of the left femur. As a consequence of
these injuries the plaintiff was kept in bed in a hospital in the City of Manila from the
28th of February until October 19 of the year 1927, or approximately eight months. In
the conclusion of his complaint the plaintiff sets out the various items of damage which
he suffered, amounting in all to something more than P120,000. These damages he
seeks to recover of the defendants in this action.
As a general ground of demurrer it is assigned by the defendants that the
complaint does not show a right of action, and in the course of the argument submitted
with the demurrer attention is directed to the fact that the complaint does not allege
that a protest had been presented by the plaintiff, within twenty-four hours after the
occurrence, to the competent authority at the port where the accident occurred. It is
accordingly insisted that, under article 835 of the Code of Commerce, the plaintiff has
shown no cause of action.
Assuming that the article of the Code of Commerce relied upon states a
condition precedent to the maintenance of an action in a case where protest is required
and that the making of protest must be alleged in the complaint in order to show a
good cause of action — an assumption that is possibly without basis, for the reason
that lack of protest in a case where protest is necessary would seem to supply matter
of defense proper to be set up in the answer, — we nevertheless are of the opinion that
protest was not necessary in the case now before us. The article in question (835, Code
of Com.) in found in the section dealing with collisions, and the context shows the
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 collisions intended are collisions of sea-going vessels. Said article cannot be applied to
small boats engaged in river and bay tra c. The Third Book of the Code of Commerce,
dealing with Maritime Commerce, of which the section on Collisions forms a part, was
evidently intended to de ne the law relative to merchant vessels and marine shipping;
and, as appears from said Code, the vessels intended in that Book are such as are run
by masters having special training, with the elaborate apparatus of crew and equipment
indicated in the Code. The word "vessel" (Spanish, "buque," "nave"), used in the section
referred to was not intended to include all ships, craft or oating structures of every
kind without limitation, and the provisions of that section should not be held to include
minor craft engaged only in river and bay tra c. Vessels which are licensed to engage
in maritime commerce, or commerce by sea, whether in foreign or coastwise trade, are
no doubt regulated by Book III of the Code of Commerce. Other vessels of a minor
nature not engaged in maritime commerce, such as river boats and those carrying
passengers from ship to shore, must be governed, as to their liability to passengers, by
the provisions of the Civil Code or other appropriate special provisions of law.
This conclusion is substantiated by the writer Estasen who makes comment
upon the word "vessel" to the following effect:
"When the mercantile codes speak of vessels, they refer solely and
exclusively to merchant ships, as they do not include war ships, and furthermore,
they almost always refer to craft which are not accessory to another as is the
case of launches, lifeboats, etc. Moreover, the mercantile laws, in making use of
the words ship, vessel, boat, embarkation, etc., refer exclusively to those which are
engaged in the transportation of passengers and freight from one port to another
or from one place to another; in a word, they refer to merchant vessels and in no
way can they or should they be understood as referring to pleasure craft, yachts,
pontoons, health service and harbor police vessels, oating storehouses,
warships or patrol vessels, coast guard vessels, shing vessels, towboats, and
other craft destined to other uses, such as for instance coast and geodetic survey,
those engaged in scienti c research and exploration, craft engaged in the loading
and discharge of vessels from same to shore or docks, or in transhipment and
those small craft which in harbors, along shore, bays, inlets, coves and
anchorages are engaged in transporting passengers and baggage." (Estasen, Der.
Mer., vol. IV, p. 195.)
In Yu Con vs. Ipil (41 Phil., 770), this court held that a small vessel used for the
transportation of merchandise by sea and for the making of voyages from one port to
another of these Islands, equipped and victualed for this purpose by its owner, is a
vessel, within the purview of the Code of Commerce, for the determination of the
character and effect of the relations created between the owners of the merchandise
laden on it and its owner. In the case before us the Jison, as we are informed in the
complaint, was propelled by a second-hand motor, originally used for a tractor plow;
and it had a capacity for only eight persons. The use to which it was being put was the
carrying of passengers and luggage between the landing at Silay and ships in the
harbor. This was not such a boat as is contemplated in article 835 of the Code of
Commerce, requiring protest in case of collision.
In Yu Con vs. Ipil, supra, the author of the opinion quotes a passage from the
treatise on Mercantile Law by Blanco. We now have before us the latest edition of
Blanco, and we reproduce here, in both Spanish and English, not only the passage thus
quoted but also the sentence immediately following said passage; and this latter part
of the quotation is quite pertinent to the point now under consideration.
Says Blanco:
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 "Las palabras 'nave' y 'buque, en su sentido gramatical, se aplican para
designar cualquier clase de embarcaciones, grandes o pequeiias, mercantes o de
guerra, signi cacion que no di ere esencialmente de la juridica, con arreglo a la
cual se consideran buques para los efectos del Codigo y del Reglamento para la
organizacion del Registro mercantil, no solo las embarcaciones destinadas a la
navegacion de cabotaje o altura, sino tambien los diques otantes, pontones,
dragas, ganguiles y cualquier otro aparato otante destinado a servicios de la
industria o del comercio maritimo.
"Aun cuando, conforme a este concepto legal, parece que todo aparato
otante que sirve directamente para el trasporte de cosas o personas, o que
indirectamente se relacionen con esta industria, han de sujetarse a los preceptos
del Codigo sobre propiedad, transmision, derechos, inscripciones, etc.,
entendemos con el Sr. Benito (obra cit.) y asi ocurre en la practica, que no son
aplicables a las pequeñas embarcaciones, que solo estan sujetas a los de la
administracion de marina para el servicio de los puQrtos o ejercicio de la industria
de la pesca." (Blanco, Der. Mer., vol. II, pag. 22.)
"The words 'ship' ( nave) and 'vessel' (buque), in their grammatical sense,
are applied to designate every kind of craft, large or small, merchant vessels or
war vessels, a signi cation which does not differ essentially from its juridical
meaning, according to which vessels for the purposes of the Code and
Regulations for the organization of the Mercantile Registry, are considered not
only those engaged in navigation, whether coastwise or on the high seas, but also
oating docks, pontoons, dredges, scows and any other oating apparatus
destined for the service of the industry or maritime commerce.
"Yet notwithstanding these principles from which it would seem that any
oating apparatus which serves directly for the transportation of things or
persons or which indirectly is related to this industry, ought to be subjected to the
principles of the Code with reference to ownership, transfer, rights, registration,
etc., we agree with Benito (cobra cit.) and it so happens in practice that they are
not applicable to small craft which are only subject to administrative (customs)
regulations in the matter of port service and in the fishing industry."
We may add that the word "nave" in Spanish, which is used interchangeably with
"buque" in the Code of Commerce, means, according to the Spanish-English Dictionary
compiled by Edward R. Bensley and published at Paris in the year 1896, "Ship, a vessel
with decks and sails." Particularly signi cant in this de nition is the use of the word
"decks," since a deck is not a feature of the smallest types of water craft.
In this connection a most instructive case from a Federal Court in the United
States is that of The Mamie (5 Fed., 813), wherein it was held that only vessels engaged
in what is ordinarily known as maritime commerce are within the provisions of law
conferring limited liability on the owner in case of maritime disaster. In the course of
the opinion in that case the author cites the analogous provisions in the laws of foreign
maritime nations, especially the provisions of the Commercial Code of France; and it is
observed that the word "vessel" in these codes is limited to ships and other sea-going
vessels. "Its provisions are not applicable," said the court, "to vessels in inland
navigation, which are especially designated by the name of boats." Quoting from the
French author Dufour (1 Droit Mer. 121), the writer of the opinion in the case cited
further says: "Thus, as a general rule, it appears to me clearly, both by the letter and
spirit of the law, that the provisions of the Second Book of the Commercial Code
[French] relate exclusively to maritime and not to uvial navigation; and that
consequently the word 'ship,' when it is found in these provisions, ought to be
understood in the sense of a vessel serving the purpose of maritime navigation or
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 seagoing vessel, and not in the sense of a vessel devoted to the navigation of rivers."
It is therefore clear that a passenger on a boat like the Jison, in the case before
us, is not required to make protest as a condition precedent to his right of action for
the injury suffered by him in the collision described in the complaint. In other words,
article 835 of the Code of Commerce does not apply. But even if said provision had
been considered applicable to the case in hand, a fair interpretation of the allegations
of the complaint indicates, we think, that the injuries suffered by the plaintiff in this case
were of such a nature as to excuse protest; for, under article 836, it is provided that
want of protest cannot prejudice a person not in a condition to make known his wishes.
An individual who has suffered a compound fracture of the femur and received other
physical injuries su cient to keep him in a hospital for many months, cannot be
supposed to have been in a condition to make protest within twenty-four hours of such
occurrence. It follows that the demurrer in this case was not well taken and should have
been overruled.
In their brief in this court the attorneys for the defendant have criticized the
complaint for a general lack of certainty and precision in more than one respect.
However, we have read the document attentively and, in our opinion, it states a good
cause of action upon a civil liability arising from tort under articles 1902 and 1903 of
the Civil Code, and our attention has not been drawn to any provision of law which
would constitute an obstacle to the maintenance of the action.
We have repeatedly called the attention of trial courts to the general rule that a
case should not be dismissed on demurrer when, under any reasonable interpretation
of the complaint, a cause of action can be made out; and the fact that a complaint is
inarti cially drawn or in a certain degree lacking in precision constitutes no su cient
reason for dismissing it. In passing upon a demurrer, every reasonable intendment is to
be taken in favor of the pleader. In this connection it should be borne in mind that if a
complaint does not show a good cause of action, the action can be dismissed at a later
stage of the proceedings; and even where no objection has been previously made, the
point can be raised in the Supreme Court under section 93 of the Code of Civil
Procedure (Abiera vs. Orin, 8 Phil., 193). Little or no appreciable prejudice to the
defendant will therefore ordinarily result from overruling a demurrer, and no harm is
done to anyone by requiring the defendant to answer. On the contrary, grave prejudice
may result to a plaintiff from the erroneous sustaining of a demurrer, because of the
delay and even expense necessary to set the matter right upon appeal.
The judgment appealed from is reversed, the demurrer overruled, and the
defendant is required to answer the complaint within ve days after noti cation of the
return of this decision to the court of origin. So ordered, with costs against the
appellee.
Johnson, Malcolm, Villamor and Romualdez, JJ., concur.
Ostrand, J., concurs in the result.

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