10/22/2017 G.R. No.

179446

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Republic of the Philippines

SECOND DIVISION

G.R. No. 179446 January 10, 2011

LOADMASTERS CUSTOMS SERVICES, INC., Petitioner,

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
Decision1 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
₱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 ₱1,903,335.39.
After the requisite investigation and adjustment, R&B Insurance paid Columbia the amount of ₱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 decision3 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:

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1. To pay plaintiff R&B Insurance Corporation the sum of ₱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 ₱1,500.00 per appearance in Court;

3. To pay plaintiff R&B Insurance Corporation the sum of ₱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.

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 ₱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,7 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.9 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

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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.

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.10 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,13 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.,14 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.15 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.16 Thus, in case
of loss of the goods, the common carrier is presumed to have been at fault or to have acted negligently.17 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 of Mindanao Terminal and Brokerage Service, Inc. v. Phoenix
Assurance Company of New York,/McGee & Co., Inc.19 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
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assuming that both Phoenix and McGee 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.20 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.21 In 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.23 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 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.

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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. 1avvphi1

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.25
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."26 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 ₱1,896,789.62 representing the insurance indemnity; b]
the amount equivalent to ten (10%) percent thereof for attorney’s fees; and c] the amount of ₱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.

JOSE CATRAL MENDOZA

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ANTONIO EDUARDO B. NACHURA DIOSDADO M. PERALTA

ROBERTO A. ABAD
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.

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RENATO C. CORONA
Chief Justice

Footnotes

1 Rollo, pp. 33-48. Penned by Associate Justice Josefina Guevara-Salonga, with Associate Justice Vicente Q.
Roxas and Associate Justice Ramon R. Garcia, concurring.
2 Petition for review on certiorari, p. 4; id. at 26.

3 Id.

4 Id. at 26-27.

5 Annex A, Petition, id. at 47.

6 Id. at 28.

7 Id. at 96.

8 Id. at 71-74.

9 Lorenzo Shipping Corporation v. Chubb and Sons, Inc., G.R. No. 147724, June 8, 2004, 431 SCRA 266,
275, citing Black’s Law Dictionary (6th ed. 1990).

10 National Steel Corporation v. Court of Appeals, 347 Phil. 345, 361 (1997).

11 Lea Mer Industries, Inc. v. Malayan Insurance Co., Inc., 508 Phil. 656, 663 (2005), citing National Steel
Corporation v. Court of Appeals, 347 Phil. 345, 362 (1997).
12 Pre-Trial Order dated September 5, 2002, records, p. 136.

13 Dated June 19, 2009, rollo, p. 178.

14 496 Phil. 437, 450 (2005), citing Calvo v. UCPB General Insurance Co., Inc., 429 Phil. 244 (2002).

15 National Trucking and Forwarding Corporation v. Lorenzo Shipping Corporation, 491 Phil. 151, 156 (2005),
citing Black’s Law Dictionary (5th ed. 1979) 411.
16 Id.

17 Civil Code, Art. 1735.

18 Civil Code, Art. 1736.

19 G.R. No. 162467, May 8, 2009, 587 SCRA 429, 434, citing Air France v. Carrascoso, 124 Phil.722, 739
(1966); Singson v. Bank of the Philippine Islands, 132 Phil. 597, 600 (1968); Mr. & Mrs. Fabre, Jr. v. Court of
Appeals, 328 Phil. 775, 785 (1996); PSBA v. Court of Appeals, G.R. No. 84698, February 4, 1992, 205 SCRA
729, 734.
20 Tan v. Jam Transit, Inc., G.R. No. 183198, November 25, 2009, 605 SCRA 659, 675, citing Delsan
Transport Lines, Inc. v. C & A Construction, Inc., 459 Phil. 156 (2003).
21 Id., citing Light Rail Transit Authority v. Navidad, 445 Phil. 31 (2003); Metro Manila Transit Corp. v. Court of
Appeals, 435 Phil. 129 (2002).
22 Eurotech Industrial Technologies, Inc. v. Cuizon, G.R. No. 167552, April 23, 2007, 521 SCRA 584, 593,
citing Yu Eng Cho v. Pan American World Airways, Inc., 385 Phil. 453, 465 (2000).

23 Yun Kwan Byung v. Philippine Amusement and Gaming Corporation, G.R. No. 163553, December 11,
2009, 608 SCRA 107, 130-131, citing Burdador v. Luz, 347 Phi. 654, 662 (1997); Eurotech Industrial
Technologies, Inc. v. Cuizon, G.R. No. 167552, April 23, 2007, 521 SCRA 584, 593; Victorias Milling Co., Inc.
v. Court of Appeals, 389 Phil. 184, 196 (2000).
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24 357 Phil 703, 751-752 (1998).

25 Section 2, Rule 9 of the 1997 Rules of Civil Procedure.

26 Causapin v. Court of Appeals, G.R. No. 107432, July 4, 1994, 233 SCRA 615, 625.

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