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Calvo vs. UCPB General Insurance Co., Inc.

*
G.R. No. 148496. March 19, 2002.

VIRGINES CALVO doing business under the name and

style TRANSORIENT CONTAINER TERMINAL
SERVICES, INC., petitioner, vs. UCPB GENERAL
INSURANCE CO., INC. (formerly Allied Guarantee Ins.
Co, Inc.), respondent.

Common Carriers; Customs Brokers; A customs broker is a

common carrier—the concept of “common carrier” under Article
1732 of the Civil Code may be seen to coincide nearly with the
notion of “public service,” under the Public Service Act
(Commonwealth Act No. 1416) which at least partially
supplements the law on common carriers set forth in the Civil
Code.—Petitioner contends that contrary to the findings of the
trial court and the Court of Appeals, she is not a common carrier
but a private carrier because, as a customs broker and
warehouseman, she does not indiscriminately hold her services
out to the public but only offers the same to select parties with
whom she may contract in the conduct of her business. The
contention has no merit. In De Guzman v. Court of Appeals, the
Court dismissed a similar contention and held the party to be a
common carrier, thus—The Civil Code defines “common carriers”
in the following terms: “Article 1732. Common carriers are
persons, corporations, firms or associations engaged in the
business of carrying or transporting passengers or goods or both,
by land, water, or air for compensation, offering their services to
the public.” The above article makes no distinction between one
whose principal business activity is the carrying of persons or
goods or both, and one who does such carrying only as an
ancillary activity . . . Article 1732 also carefully avoids making
any distinction between a person

______________

* SECOND DIVISION.

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Calvo vs. UCPB General Insurance Co., Inc.

or enterprise offering transportation service on a regular or

scheduled basis and one offering such service on an occasional,
episodic or unscheduled basis. Neither does Article 1732
distinguish between a carrier offering its services to the “general
public,” i.e., the general community or population, and one who
offers services or solicits business only from a narrow segment of
the general population. We think that Article 1732 deliberately
refrained from making such distinctions. So understood, the
concept of “common carrier” under Article 1732 may be seen to
coincide neatly with the notion of “public service,” under the
Public Service Act (Commonwealth Act No. 1416, as amended)
which at least partially supplements the law on common carriers
set forth in the Civil Code.
Same; Same; There is greater reason for holding a person who
is a customs broker to be a common carrier because the
transportation of goods is an integral part of her business.—There
is greater reason for holding petitioner to be a common carrier
because the transportation of goods is an integral part of her
business. To uphold petitioner’s contention would be to deprive
those with whom she contracts the protection which the law
affords them notwithstanding the fact that the obligation to carry
goods for her customers, as already noted, is part and parcel of
petitioner’s business.
Same; Same; Words and Phrases; “Extraordinary Diligence,”
Explained; Common carriers, from the nature of their business
and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the
safety of the passengers transported by them, according to all the
circumstances of such case.—As to petitioner’s liability, Art. 1733
of the Civil Code provides: Common carriers, from the nature of
their business and for reasons of public policy, are bound to
observe extraordinary diligence in the vigilance over the goods
and for the safety of the passengers transported by them,
according to all the circumstances of each case. . . . In Compania
Maritima v. Court of Appeals, the meaning of “extraordinary
diligence in the vigilance over goods” was explained thus: The
extraordinary diligence in the vigilance over the goods tendered
for shipment requires the common carrier to know and to follow
the required precaution for avoiding damage to, or destruction of

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the goods entrusted to it for sale, carriage and delivery. It

requires common carriers to render service with the greatest skill
and foresight and “to use all reasonable means to ascertain the
nature and characteristic of goods tendered for shipment, and to
exercise due care in the handling and stowage, including such
methods as their nature requires.”

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Calvo vs. UCPB General Insurance Co., Inc.

Same; Same; To prove the exercise of extraordinary diligence,

a customs broker must do more than merely show the possibility
that some other party could be responsible for the damage.—Anent
petitioner’s insistence that the cargo could not have been
damaged while in her custody as she immediately delivered the
containers to SMC’s compound, suffice it to say that to prove the
exercise of extraordinary diligence, petitioner must do more than
merely show the possibility that some other party could be
responsible for the damage. It must prove that it used “all
reasonable means to ascertain the nature and characteristic of
goods tendered for [transport] and that [it] exercise[d] due care in
the handling [thereof].” Petitioner failed to do this.
Same; Same; If the improper packing or the defects in the
container are known to the carrier or his employees or apparent
upon ordinary observation, but he nevertheless accepts the same
without protest or exception notwithstanding such condition, he is
not relieved of liability for damage resulting therefrom.—The rule
is that if the improper packing or, in this case, the defect/s in the
container, is/are known to the carrier or his employees or
apparent upon ordinary observation, but he nevertheless accepts
the same without protest or exception notwithstanding such
condition, he is not relieved of liability for damage resulting
therefrom. In this case, petitioner accepted the cargo without
exception despite the apparent defects in some of the container
vans. Hence, for failure of petitioner to prove that she exercised
extraordinary diligence in the carriage of goods in this case or
that she is exempt from liability, the presumption of negligence as
provided under Art. 1735 holds.

PETITION for review on certiorari of a decision of the

Court of Appeals.

The facts are stated in the opinion of the Court.

     Montilla Law Office for petitioner.
     Leano and Leano Law Office for respondent.
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MENDOZA, J.:
1
This is a petition for review of the decision, dated May
2
31,
2001, of the Court of Appeals, affirming the decision of the
Regional

______________

1 Per Justice Presbitero J. Velasco, Jr., and concurred in by Justices

Bienvenido L. Reyes and Juan Q. Enriquez, Jr.
2 Per Judge Oscar Pimentel.

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VOL. 379, MARCH 19, 2002 513

Calvo vs. UCPB General Insurance Co., Inc.

Trial Court, Makati City, Branch 148, which ordered

petitioner to pay respondent, as subrogee, the amount of
P93,112.00 with legal interest, representing the value of
damaged cargo handled by petitioner, 25% thereof as
attorney’s fees, and the cost of the suit.
The facts are as follows:
Petitioner Virgines Calvo is the owner of Transorient
Container Terminal Services, Inc. (TCTSI), a sole
proprietorship customs broker. At the time material to this
case, petitioner entered into a contract with San Miguel
Corporation (SMC) for the transfer of 114 reels of semi-
chemical fluting paper and 124 reels of kraft liner board
from the Port Area in Manila to SMC’s warehouse at the
Tabacalera Compound, Romualdez St., Ermita, Manila.
The cargo was insured by respondent UCPB General
Insurance Co., Inc.
On July 14, 1990, the shipment in question, contained in
30 metal vans, arrived in Manila on board “M/V Hayakawa
Maru” and, after 24 hours, were unloaded from the vessel
to the custody of the arrastre operator, Manila Port
Services, Inc. From July 23 to July 25, 1990, petitioner,
pursuant to her contract with SMC, withdrew the cargo
from the arrastre operator and delivered it to SMC’s
warehouse in Ermita, Manila. On July 25, 1990, the goods
were inspected by Marine Cargo Surveyors, who found that
15 reels of the semi-chemical fluting paper were
“wet/stained/torn” and 3 reels of kraft liner board were
likewise torn. The damage was placed at P93,112.00.
SMC collected payment from respondent UCPB under
its insurance contract for the aforementioned amount. In
turn, respondent, as subrogee of SMC, brought suit against
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petitioner in the Regional Trial Court, Branch 148, Makati

City, which, on December 20, 1995, rendered judgment
finding petitioner liable to respondent for the damage to
the shipment.
The trial court held:

It cannot be denied . . . that the subject cargoes sustained damage

while in the custody of defendants. Evidence such as the
Warehouse Entry Slip (Exh. “E”), the Damage Report (Exh. “F”)
with entries appearing therein, classified as “TED” and “TSN,”
which the claims processor, Ms. Agrifina De Luna, claimed to be
tearrage at the end and tearrage at the middle of the subject
damaged cargoes respectively, coupled with the Marine Cargo
Survey Report (Exh. “H” - “H-4-A”) confirms the fact of the

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Calvo vs. UCPB General Insurance Co., Inc.

damaged condition of the subject cargoes. The surveyor[s’] report

(Exh. “H-4-A”) in particular, which provides among others that:
“. . . we opine that damages sustained by shipment is
attributable to improper handling in transit presumably whilst in
the custody of the broker . . . .”

is a finding which cannot be traversed and overturned.

The evidence adduced by the defendants is not enough to

sustain [her] defense that [she is] are not liable. Defendant by
reason of the nature of [her] business should have devised ways
and means in order to prevent the damage to the cargoes which it
is under obligation to take custody of and to forthwith deliver to
the consignee. Defendant did not present any evidence on what
precaution [she] performed to prevent [the] said incident, hence
the presumption is that the moment the defendant accepts the
cargo [she] shall perform such extraordinary diligence because of
the nature of the cargo.
....
Generally speaking under Article 1735 of the Civil Code, if the
goods are proved to have been lost, destroyed or deteriorated,
common carriers are presumed to have been at fault or to have
acted negligently, unless they prove that they have observed the
extraordinary diligence required by law. The burden of the
plaintiff, therefore, is to prove merely that the goods he
transported have been lost, destroyed or deteriorated. Thereafter,
the burden is shifted to the carrier to prove that he has exercised
the extraordinary diligence required by law. Thus, it has been
held that the mere proof of delivery of goods in good order to a
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carrier, and of their arrival at the place of destination in bad

order, makes out a prima facie case against the carrier, so that if
no explanation is given as to how the injury occurred, the carrier
must be held responsible. It is incumbent upon the carrier to
prove that the loss was due to accident or some other
circumstances inconsistent with its liability.” (cited in
Commercial Laws of the Philippines by Agbayani, p. 31, Vol. IV,
1989 Ed.)
Defendant, being a customs broker, warehouseman and at the
same time a common carrier is supposed [to] exercise [the]
extraordinary diligence required by law, hence the extraordinary
responsibility 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
3
consignee or to the person who
has the right to receive the same.

______________

3 RTC Decision, pp. 3-5; Rollo, pp. 31-33.

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VOL. 379, MARCH 19, 2002 515

Calvo vs. UCPB General Insurance Co., Inc.

Accordingly, the trial court ordered petitioner to pay the

following amounts—

1. The sum of P93,112.00 plus interest;

2. 25% thereof as lawyer’s fee;
4
3. Costs of suit.

The decision was affirmed by the Court of Appeals on

appeal. Hence this petition for review on certiorari.
Petitioner contends that:

I. THE COURT OF APPEALS COMMITTED

SERIOUS AND REVERSIBLE ERROR [IN]
DECIDING THE CASE NOT ON THE EVIDENCE
PRESENTED BUT ON PURE SURMISES,
SPECULATIONS AND MANIFESTLY MISTAKEN
INFERENCE.
II. THE COURT OF APPEALS COMMITTED
SERIOUS AND REVERSIBLE ERROR IN
CLASSIFYING THE PETITIONER AS A
COMMON CARRIER AND NOT AS PRIVATE OR

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SPECIAL CARRIER WHO DID5

NOT HOLD ITS
SERVICES TO THE PUBLIC.

It will be convenient to deal with these contentions in the

inverse order, for if petitioner is not a common carrier,
although both the trial court and the Court of Appeals held
otherwise, then she is indeed not liable beyond what
ordinary diligence in the vigilance 6
over the goods
transported by her, would require. Consequently, any
damage to the cargo she agrees to transport cannot be
presumed to have been due to her fault or negligence.
Petitioner contends that contrary to the findings of the
trial court and the Court of Appeals, she is not a common
carrier but a private carrier because, as a customs broker
and warehouseman, she does not indiscriminately hold her
services out to the public but only offers the same to select
parties with whom she may contract in the conduct of her
business.

______________

4 Id., p. 6; id., p. 34.

5 Petition, p. 5, Rollo, p. 13.
6 Planters Products, Inc. v. Court of Appeals, 226 SCRA 476 (1993).

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516 SUPREME COURT REPORTS ANNOTATED

Calvo vs. UCPB General Insurance Co., Inc.

The contention
7
has no merit. In De Guzman v. Court of
Appeals, the Court dismissed a similar contention and held
the party to be a common carrier, thus—
The Civil Code defines “common carriers” in the
following terms:

“Article 1732. Common carriers are persons, corporations, firms or

associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air for compensation,
offering their services to the public.”

The above article makes no distinction between one whose

principal business activity is the carrying of persons or goods or
both, and one who does such carrying only as an ancillary activity
. . . Article 1732 also carefully avoids making any distinction
between a person or enterprise offering transportation service on
a regular or scheduled basis and one offering such service on an
occasional, episodic or unscheduled basis. Neither does Article

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1732 distinguish between a carrier offering its services to the

“general public,” i.e., the general community or population, and
one who offers services or solicits business only from a narrow
segment of the general population. We think that Article 1732
deliberately refrained from making such distinctions.
So understood, the concept of “common carrier” under Article
1732 may be seen to coincide neatly with the notion of “public
service,” under the Public Service Act (Commonwealth Act No.
1416, as amended) which at least partially supplements the law
on common carriers set forth in the Civil Code. Under Section 13,
paragraph (b) of the Public Service Act, “public service” includes:

“x x x every person that now or hereafter may own, operate, manage, or

control in the Philippines, for hire or compensation, with general or
limited clientele, whether permanent, occasional or accidental, and done
for general business purposes, any common carrier, railroad, street
railway, traction railway, subway motor vehicle, either for freight or
passenger, or both, with or without fixed route and whatever may be its
classification, freight or carrier service of any class, express service,
steamboat, or steamship line, pontines, ferries and water craft, engaged
in the transportation of passengers or freight or both, shipyard, marine
repair shop, wharf or dock, ice plant, ice-refrigeration plant, canal,
irrigation system, gas, electric light, heat and power, water supply and
power petroleum, sewerage

______________

7 168 SCRA 612 (1988).

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VOL. 379, MARCH 19, 2002 517

Calvo vs. UCPB General Insurance Co., Inc.

system, wire or wireless communications systems, wire or wireless

8

broadcasting stations and other similar public services. x x x”

There is greater reason for holding petitioner to be a

common carrier because the transportation of goods is an
integral part of her business. To uphold petitioner’s
contention would be to deprive those with whom she
contracts the protection which the law affords them
notwithstanding the fact that the obligation to carry goods
for her customers, as already noted, is part and parcel of
petitioner’s business.
Now, as to petitioner’s liability, Art. 1733 of the Civil
Code provides:

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Common carriers, from the nature of their business and for

reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the
circumstances of each case. . . .
9
In Compania Maritima v. Court of Appeals, the meaning of
“extraordinary diligence in the vigilance over goods” was
explained thus:

The extraordinary diligence in the vigilance over the goods

tendered for shipment requires the common carrier to know and
to follow the required precaution for avoiding damage to, or
destruction of the goods entrusted to it for sale, carriage and
delivery. It requires common carriers to render service with the
greatest skill and foresight and “to use all reasonable means to
ascertain the nature and characteristic of goods tendered for
shipment, and to exercise due care in the handling and stowage,
including such methods as their nature requires.”

In the case at bar, petitioner denies liability for the damage

to the cargo. She claims that the “spoilage or wettage” took
place while the goods were in the custody of either the
carrying vessel “M/V Hayakawa Maru,” which transported
the cargo to Manila, or the arrastre operator, to whom the
goods were unloaded and who allegedly kept them in open
air for nine days from July 14 to July

______________

8 Id., pp. 617-618 (italics in the original).

9 164 SCRA 685, 692 (1988).

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Calvo vs. UCPB General Insurance Co., Inc.

23, 1998 notwithstanding the fact that some of the

containers were deformed, cracked, or otherwise damaged,
as noted in the Marine Survey Report (Exh. “H”), to wit:

      rain gutter deformed/cracked

MAXU- —
2062880
ICSU- — left side rubber gasket on door
363461-3 distorted/partly loose
PERU- — with pinholes on roof panel right portion

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204209-4
TOLU- — wood flooring we[t] and/or with signs of
213674-3 water soaked
MAXU- — with dent/crack on roof panel
201406-0
ICSU- — rubber gasket on left
10
side/door panel partly
412105-0 detached loosened.

In addition, petitioner claims that Marine Cargo Surveyor

Ernesto Tolentino testified that he has no personal
knowledge on whether the container vans were first stored
in petitioner’s warehouse prior to their delivery to the
consignee. She likewise claims that after withdrawing the
container vans from the arrastre operator, her driver,
Ricardo Nazarro, immediately delivered the cargo to SMC’s
warehouse in Ermita, Manila, which is a mere thirty-
minute drive from the Port Area where the cargo came
from. Thus, the damage to the cargo 11could not have taken
place while these were in her custody.
Contrary to petitioner’s assertion, the Survey Report
(Exh. “H”) of the Marine Cargo Surveyors indicates that
when the shipper transferred the cargo in question to the
arrastre operator, these were covered by clean Equipment
Interchange Report (EIR) and, when petitioner’s employees
withdrew the cargo from the arrastre operator, they did so
without exception or protest either with regard to the
condition of container vans or their contents. The Survey
Report pertinently reads—

Details of Discharge:

Shipment, provided with our protective supervision was noted

discharged ex vessel to dock of Pier #13 South Harbor, Manila on
14 July

______________

10 CA Decision, p. 5; Rollo, p. 25.

11 Petition, pp. 6-9; Rollo, pp. 14-17.

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VOL. 379, MARCH 19, 2002 519

Calvo vs. UCPB General Insurance Co., Inc.

1990, containerized onto 30’ x 20’ secure metal vans, covered by

clean EIRs. Except for slight dents and paint scratches on side and

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roof panels, these containers were deemed to have [been] received

in good condition.
....

Transfer/Delivery:

On July 23, 1990, shipment housed onto 30’ x 20’ cargo

containers was [withdrawn] by Transorient Container Services,
Inc. . . . without exception.
[The cargo] was finally delivered to the consignee’s storage
warehouse located at Tabacalera Compound,
12
Romualdez Street,
Ermita, Manila from July 23/25, 1990.

As found by the Court of Appeals:

From the [Survey Report], it [is] clear that the shipment was
discharged from the vessel to the arrastre, Marina Port Services
Inc., in good order and condition as evidenced by clean Equipment
Interchange Reports (EIRs). Had there been any damage to the
shipment, there would have been a report to that effect made by
the arrastre operator. The cargoes were withdrawn by the
defendant-appellant from the arrastre still in good order and
condition as the same were received by the former without
exception, that is, without any report of damage or loss. Surely, if
the container vans were deformed, cracked, distorted or dented,
the defendant-appellant would report it immediately to the
consignee or make an exception on the delivery receipt or note the
same in the Warehouse Entry Slip (WES). None of these took
place. To put it simply, the defendantappellant received the
shipment in good order and condition and delivered the same to
the consignee damaged. We can only conclude that the damages to
the cargo occurred while it was in the possession of the
defendantappellant. Whenever the thing is lost (or damaged) in
the possession of the debtor (or obligor), it shall be presumed that
the loss (or damage) was due to his fault, unless there is proof to
the contrary. No proof was proffered to rebut this legal
presumption and the presumption of negligence attached 13
to a
common carrier in case of loss or damage to the goods.

Anent petitioner’s insistence that the cargo could not have

been damaged while in her custody as she immediately
delivered the

______________

12 CA Decision, p. 6; Rollo, p. 26 (emphasis in the original).

13 Id., pp. 6-7; id., pp. 26-27 (emphasis in the original).

520

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520 SUPREME COURT REPORTS ANNOTATED

Calvo vs. UCPB General Insurance Co., Inc.

containers to SMC’s compound, suffice it to say that to

prove the exercise of extraordinary diligence, petitioner
must do more than merely show the possibility that some
other party could be responsible for the damage. It must
prove that it used “all reasonable means to ascertain the
nature and characteristic of goods tendered for [transport]
and that [it] exercise[d] due care in the handling [thereof].”
Petitioner failed to do this.
Nor is there basis to exempt petitioner from liability
under Art. 1734(4), which provides—

Common carriers are responsible for the loss, destruction, or

deterioration of the goods, unless the same is due to any of the
following causes only:
....
(4) The character of the goods or defects in the packing or in
the containers.
....

For this provision to apply, the rule is that if the improper

packing or, in this case, the defect/s in the container, is/are
known to the carrier or his employees or apparent upon
ordinary observation, but he nevertheless accepts the same
without protest or exception notwithstanding such
condition, he is not 14
relieved of liability for damage
resulting therefrom. In this case, petitioner accepted the
cargo without exception despite the apparent defects in
some of the container vans. Hence, for failure of petitioner
to prove that she exercised extraordinary diligence in the
carriage of goods in this case or that she is exempt from
liability, the
15
presumption of negligence as provided under
Art. 1735 holds.

______________

14 See 5-A AMBROSIO PADILLA, CIVIL CODE ANNOTATED 472 (6th

ed., 1990), citing Southern Lines, Inc. v. Court of Appeals and City of
Iloilo, 114 Phil. 198; 4 SCRA 258 (1962).
15 Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4
and 5 of [Art. 1734], if the goods are lost, destroyed or deteriorated,
common carriers are presumed to have been at fault or to have acted
negligently unless they prove that they observed extraordinary diligence
as required in Article 1733.

521

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VOL. 379, MARCH 20, 2002 521

Court Administrator vs. Abdullahi

WHEREFORE, the decision of the Court of Appeals, dated

May 31, 2001, is AFFIRMED.
SO ORDERED.

     Bellosillo (Chairman), Quisumbing, Buena and De

Leon, Jr., JJ., concur.

Judgment affirmed.

Notes.—The arrastre operator and the customs broker

need not themselves always and necessarily be liable
solidarily with the carrier, or vice-versa, nor that attendant
facts in a given case may not vary the rule. (Eastern
Shipping Lines, Inc. vs. Court of Appeals, 234 SCRA 78
[1994])
A customs broker is not required to go beyond the
documents presented to him in filing an entry on the basis
of such documents. (Remigio vs. Sandiganbayan, 374 SCRA
114, [2002])

——o0o——

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