G.R. No. L-48757 May 30, 1988 Bataan, for treatment (t.s.n., March 19, 1971, p.

13; September
28, 1972, p. 15).
MAURO GANZON, petitioner, 
vs. After sometime, the loading of the scrap iron was resumed. But
COURT OF APPEALS and GELACIO E. on December 4, 1956, Acting Mayor Basilio Rub, accompanied
TUMAMBING, respondents. by three policemen, ordered captain Filomeno Niza and his crew
to dump the scrap iron (t.s.n., June 16, 1972, pp. 8-9) where the
Antonio B. Abinoja for petitioner. lighter was docked (t.s.n., September 28, 1972, p. 31). The rest
was brought to the compound of NASSCO (Record on Appeal,
Quijano, Arroyo & Padilla Law Office for respondents. pp. 20-22). Later on Acting Mayor Rub issued a receipt stating
that the Municipality of Mariveles had taken custody of the scrap
iron (Stipulation of Facts, Record on Appeal, p. 40; t.s.n.,
September 28, 1972, p. 10.)
SARMIENTO, J.:
On the basis of the above findings, the respondent Court
The private respondent instituted in the Court of First Instance of Manila 1 an action against
rendered a decision, the dispositive portion of which states:
the petitioner for damages based on culpa contractual. The antecedent facts, as found by
the respondent Court, 2 are undisputed:
WHEREFORE, the decision appealed from is
hereby reversed and set aside and a new one
On November 28, 1956, Gelacio Tumambing contracted the entered ordering defendant-appellee Mauro
services of Mauro B. Ganzon to haul 305 tons of scrap iron from Ganzon to pay plaintiff-appellant Gelacio E.
Mariveles, Bataan, to the port of Manila on board the lighter LCT Tumambimg the sum of P5,895.00 as actual
"Batman" (Exhibit 1, Stipulation of Facts, Amended Record on damages, the sum of P5,000.00 as exemplary
Appeal, p. 38). Pursuant to that agreement, Mauro B. Ganzon damages, and the amount of P2,000.00 as
sent his lighter "Batman" to Mariveles where it docked in three attorney's fees. Costs against defendant-appellee
feet of water (t.s.n., September 28, 1972, p. 31). On December 1, Ganzon.  3

1956, Gelacio Tumambing delivered the scrap iron to defendant

Filomeno Niza, captain of the lighter, for loading which was In this petition for review on certiorari, the alleged errors in the
actually begun on the same date by the crew of the lighter under decision of the Court of Appeals are:
the captain's supervision. When about half of the scrap iron was
already loaded (t.s.n., December 14, 1972, p. 20), Mayor Jose
I
Advincula of Mariveles, Bataan, arrived and demanded P5,000.00
from Gelacio Tumambing. The latter resisted the shakedown and
after a heated argument between them, Mayor Jose Advincula THE COURT OF APPEALS FINDING THE HEREIN
drew his gun and fired at Gelacio Tumambing (t.s.n., March 19, PETITIONER GUILTY OF BREACH OF THE CONTRACT OF
1971, p. 9; September 28, 1972, pp. 6-7). The gunshot was not TRANSPORTATION AND IN IMPOSING A LIABILITY AGAINST
HIM COMMENCING FROM THE TIME THE SCRAP WAS
<äre||anº•1àw> 

fatal but Tumambing had to be taken to a hospital in Balanga,

PLACED IN HIS CUSTODY AND CONTROL HAVE NO BASIS deterioration of the goods commenced. Pursuant to Art. 1736,
IN FACT AND IN LAW. such extraordinary responsibility would cease only upon the
delivery, actual or constructive, by the carrier to the consignee, or
II to the person who has a right to receive them.   The fact that part
5

of the shipment had not been loaded on board the lighter did not
THE APPELLATE COURT ERRED IN CONDEMNING THE impair the said contract of transportation as the goods remained
PETITIONER FOR THE ACTS OF HIS EMPLOYEES IN in the custody and control of the carrier, albeit still unloaded.
DUMPING THE SCRAP INTO THE SEA DESPITE THAT IT WAS
ORDERED BY THE LOCAL GOVERNMENT OFFICIAL The petitioner has failed to show that the loss of the scraps was
WITHOUT HIS PARTICIPATION. due to any of the following causes enumerated in Article 1734 of
the Civil Code, namely:
III
(1) Flood, storm, earthquake, lightning, or other natural disaster
THE APPELLATE COURT FAILED TO CONSIDER THAT THE or calamity;
LOSS OF THE SCRAP WAS DUE TO A FORTUITOUS EVENT
AND THE PETITIONER IS THEREFORE NOT LIABLE FOR (2) Act of the public enemy in war, whether international or civil;
LOSSES AS A CONSEQUENCE THEREOF.  4

(3) Act or omission of the shipper or owner of the goods;

The petitioner, in his first assignment of error, insists that the
scrap iron had not been unconditionally placed under his custody (4) The character of the goods or defects in the packing or in the
and control to make him liable. However, he completely agrees containers;
with the respondent Court's finding that on December 1, 1956, the
private respondent delivered the scraps to Captain Filomeno Niza (5) Order or act of competent public authority.
for loading in the lighter "Batman," That the petitioner, thru his
employees, actually received the scraps is freely admitted. Hence, the petitioner is presumed to have been at fault or to have
Significantly, there is not the slightest allegation or showing of any acted negligently.   By reason of this presumption, the court is not
6

condition, qualification, or restriction accompanying the delivery even required to make an express finding of fault or negligence
by the private respondent-shipper of the scraps, or the receipt of before it could hold the petitioner answerable for the breach of the
the same by the petitioner. On the contrary, soon after the scraps contract of carriage. Still, the petitioner could have been
were delivered to, and received by the petitioner-common carrier, exempted from any liability had he been able to prove that he
loading was commenced. observed extraordinary diligence in the vigilance over the goods
in his custody, according to all the circumstances of the case, or
By the said act of delivery, the scraps were unconditionally placed that the loss was due to an unforeseen event or to force majeure.
in the possession and control of the common carrier, and upon As it was, there was hardly any attempt on the part of the
their receipt by the carrier for transportation, the contract of petitioner to prove that he exercised such extraordinary diligence.
carriage was deemed perfected. Consequently, the petitioner-
carrier's extraordinary responsibility for the loss, destruction or
It is in the second and third assignments of error where the Now the petitioner is changing his theory to caso fortuito. Such a
petitioner maintains that he is exempt from any liability because change of theory on appeal we cannot, however, allow. In any
the loss of the scraps was due mainly to the intervention of the case, the intervention of the municipal officials was not In any
municipal officials of Mariveles which constitutes a caso fortuito case, of a character that would render impossible the fulfillment
as defined in Article 1174 of the Civil Code. 
7
by the carrier of its obligation. The petitioner was not duty bound
to obey the illegal order to dump into the sea the scrap iron.
We cannot sustain the theory of caso fortuito. In the courts below, Moreover, there is absence of sufficient proof that the issuance of
the petitioner's defense was that the loss of the scraps was due to the same order was attended with such force or intimidation as to
an "order or act of competent public authority," and this completely overpower the will of the petitioner's employees. The
contention was correctly passed upon by the Court of Appeals mere difficulty in the fullfilment of the obligation is not
which ruled that: considered force majeure. We agree with the private respondent
that the scraps could have been properly unloaded at the shore
... In the second place, before the appellee or at the NASSCO compound, so that after the dispute with the
Ganzon could be absolved from responsibility on local officials concerned was settled, the scraps could then be
the ground that he was ordered by competent delivered in accordance with the contract of carriage.
public authority to unload the scrap iron, it must
be shown that Acting Mayor Basilio Rub had the There is no incompatibility between the Civil Code provisions on
power to issue the disputed order, or that it was common carriers and Articles 361   and 362   of the Code of
8 9

lawful, or that it was issued under legal process of Commerce which were the basis for this Court's ruling in
authority. The appellee failed to establish this. Government of the Philippine Islands vs. Ynchausti & Co.10 and
Indeed, no authority or power of the acting mayor which the petitioner invokes in tills petition. For Art. 1735 of the
to issue such an order was given in evidence. Civil Code, conversely stated, means that the shipper will suffer
Neither has it been shown that the cargo of scrap the losses and deterioration arising from the causes enumerated
iron belonged to the Municipality of Mariveles. in Art. 1734; and in these instances, the burden of proving that
What we have in the record is the stipulation of damages were caused by the fault or negligence of the carrier
the parties that the cargo of scrap iron was rests upon him. However, the carrier must first establish that the
accilmillated by the appellant through separate loss or deterioration was occasioned by one of the excepted
purchases here and there from private individuals causes or was due to an unforeseen event or to force majeure.
(Record on Appeal, pp. 38-39). The fact remains Be that as it may, insofar as Art. 362 appears to require of the
that the order given by the acting mayor to dump carrier only ordinary diligence, the same is .deemed to have been
the scrap iron into the sea was part of the modified by Art. 1733 of the Civil Code.
pressure applied by Mayor Jose Advincula to
shakedown the appellant for P5,000.00. The order Finding the award of actual and exemplary damages to be
of the acting mayor did not constitute valid proper, the same will not be disturbed by us. Besides, these were
authority for appellee Mauro Ganzon and his not sufficiently controverted by the petitioner.
representatives to carry out.
WHEREFORE, the petition is DENIED; the assailed decision of three feet of water. Again, could the captain of the lighter and his
the Court of Appeals is hereby AFFIRMED. Costs against the crew have defied said order?
petitioner.
Through the "order" or "act" of "competent public authority,"
This decision is IMMEDIATELY EXECUTORY. therefore, the performance of a contractual obligation was
rendered impossible. The scrap iron that was dumped into the
Yap, C.J., Paras and Padilla, JJ., concur. sea was "destroyed" while the rest of the cargo was "seized." The
seizure is evidenced by the receipt issues by Acting Mayor Rub
  stating that the Municipality of Mariveles had taken custody of the
scrap iron. Apparently, therefore, the seizure and destruction of
the goods was done under legal process or authority so that
 
petitioner should be freed from responsibility.
Separate Opinions
Art. 1743. If through order of public authority the
goods are seized or destroyed, the common
  carrier is not responsible, provided said public
authority had power to issue the order.
MELENCIO-HERRERA, J., dissenting:
 
I am constrained to dissent.
 
It is my view that petitioner can not be held liable in damages for
the loss and destruction of the scrap iron. The loss of said cargo Separate Opinions
was due to an excepted cause an 'order or act of competent
public authority" (Article 1734[5], Civil Code). MELENCIO-HERRERA, J., dissenting:

The loading of the scrap iron on the lighter had to be suspended I am constrained to dissent.
because of Municipal Mayor Jose Advincula's intervention, who
was a "competent public authority." Petitioner had no control over It is my view that petitioner can not be held liable in damages for
the situation as, in fact, Tumambing himself, the owner of the the loss and destruction of the scrap iron. The loss of said cargo
cargo, was impotent to stop the "act' of said official and even was due to an excepted cause an 'order or act of competent
suffered a gunshot wound on the occasion. public authority" (Article 1734[5], Civil Code).

When loading was resumed, this time it was Acting Mayor Basilio The loading of the scrap iron on the lighter had to be suspended
Rub, accompanied by three policemen, who ordered the dumping because of Municipal Mayor Jose Advincula's intervention, who
of the scrap iron into the sea right where the lighter was docked in was a "competent public authority." Petitioner had no control over
the situation as, in fact, Tumambing himself, the owner of the
cargo, was impotent to stop the "act' of said official and even Art. 1736. The extraordinary responsibility of the
suffered a gunshot wound on the occasion. common carriers lasts from the time the goods are
unconditionally placed in the possession of, and
When loading was resumed, this time it was Acting Mayor Basilio received by the carrier for transportation until the
Rub, accompanied by three policemen, who ordered the dumping same are delivered, actually or constructively, by
of the scrap iron into the sea right where the lighter was docked in the carrier to the consignee, or to the person who
three feet of water. Again, could the captain of the lighter and his has a right to receive them, without prejudice to
crew have defied said order? the provisions of article 1738.

Through the "order" or "act" of "competent public authority," 6 Article 1735, supra.

therefore, the performance of a contractual obligation was
rendered impossible. The scrap iron that was dumped into the Art. 1735. In all cases other than those mentioned
sea was "destroyed" while the rest of the cargo was "seized." The in Nos. 1, 2, 3, 4, and 5 of the preceding article, if
seizure is evidenced by the receipt issues by Acting Mayor Rub the goods are lost, destroyed or deteriorated,
stating that the Municipality of Mariveles had taken custody of the common carriers are presumed to have been at
scrap iron. Apparently, therefore, the seizure and destruction of fault or to have acted negligently, unless they
the goods was done under legal process or authority so that prove that they observed extraordinary diligence
petitioner should be freed from responsibility. as required in Article 1733.

Art. 1743. If through order of public authority the 7 Art. 11 74, supra:

goods are seized or destroyed, the common
carrier is not responsible, provided said public Art. 1174. Except in cases expressly specified by
authority had power to issue the order. the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation
Footnotes requires the assumption of risk, no person shall
be responsible for those events which could not
1 Presided by Judge Jesus P. Morfe be foreseen, or which though for foreseen were
inevitable.
2 Pascual, Chairman, ponente; Agrava and
Climaco, JJ., concurring. 8 Article 361, Code of Commerce:

3 Decision, 9; Rollo 19. Art. 361. The

merchandise shall
4 Petitioner's Brief, 3, 7, 9; Rollo, 41. be transported at
the risk and
venture of the
5 Article 1736, Civil Code of the Philippines:
shipper, if the
 contrary has not negligence or by
been expressly reason of his
stipulated. having failed to
take the
As a consequence, precautions which
all the losses and usage has
deterioration which established among
the goods may careful persons,
suffer during the unless the shipper
transportation by has committed
reason of fortuitous fraud in the bill of
event, force lading,
majeure, or the representing the
inherent nature goods to be of a
and defect of the kind or quality
goods, shall be for different from what
the account and they really were.
risk of the shipper.
If, notwithstanding
Proof of these the precautions
accidents is referred to in to
incumbent upon article, the goods
the carrier. transported run the
risk of being lost,
9 Article 362, Code of Commerce: on account of their
nature or by
reason of
Art. 362.
unavoidable
Nevertheless, the
accident, there
carrier shall be
being no time for
liable for the losses
their owners to
and damages
dispose of them,
resulting from the
the carrier may
causes mentioned
proceed to sell
in the preceding
them, placing them
article if it is
for this purpose at
proved, as against
the disposal of the
him, that they
judicial authority or
arose through his
 of the officials
designated by
special provisions.

10 No. 14191, September 29, 1919, 40 Phil. 219.