G.R. No. 17, August 26, 1901

Supreme Court of the Philippines
1 Phil. 7
G.R. No. 17, August 26, 1901

DON LUCIANO CORDOBA, PLAINTIFF AND APPELLANT, VS.
WARNER, BARNES & CO., DEFENDANTS AND APPELLEES.
DECISION
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 Mail
Steamship Company on board its steamship Rio du 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.
Batas.org

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Supreme Court of the Philippines

G.R. No. 17, August 26, 1901

The record discloses without contradiction that some time prior to

Respondents claimed on the hearing of this appeal that the duplicate

Defendants' second defense—that plaintiff's suit must fail because

Arellano, C. J., Torres, Cooper, Willard, Ladd, and Mapa, JJ.,

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