G.R. No. L-17027




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-17027 March 3, 1967 YU KIMTENG CONSTRUCTION CORPORATION, plaintiff-appellant, vs. MANILA RAILROAD COMPANY and MANILA PORT SERVICE, defendants-appellees. Sycip, Salazar and Associates for plaintiff-appellant. D.F. Macaranas and J. Enage for defendants-appellees. R E S O L U T I O N MAKALINTAL, J.: The Manila Railroad Company and the Manila Port Service have moved to reconsider our decision dated November 29, 1965, ordering them to pay plaintiff-appellant Yu Kimteng Construction Corporation the sum of P7,935.00 as compensatory damages and P1,000.00 as attorney's fees and litigation expenses, including costs. The following grounds are alleged in support of the motion: (1) that the Court departed from its previous rulings upholding the validity of paragraph 15 of the management contract, to the effect that a claim for the value of the goods damaged, undelivered or misdelivered must be filed within 15 days from the date of discharge of the last package from the carrying vessels, as a condition precedent before the arrastre contractor may be sued; (2) that movants' liability, if any, under the management contract is limited to P500 for each package unless the value is otherwise specified or manifested; (3) that the conclusion that appellant learned of the missing bars at the time when the three lifts were delivered, is erroneous; and (4) that attorney's fees should not have been imposed. The following facts are not disputed: The carrying vessel arrived in Manila on May 28, 1957. The next day, May 29, the Bureau of Customs delivered to appellant the three delivery permits covering the shipment of eight lifts of reinforced steel bars. On May 31, the shipment was completely discharged from the ship into the custody of appellees. On June 16 appellant was billed by appellee Manila Port Service for arrastre charges on the entire shipment, in the sum of P348.48. On June 20 the Manila Port Service issued a gate pass to appellant. On the same day it delivered to appellant's customs broker three lifts only, hence the latter filed provisional claims on that day for the five missing lifts. Appellees' principal defense is that appellant should have filed its claim within 15 days from the date of the complete discharge of the goods from the carrying vessel, as provided to paragraph 15 of the management contract. They cite the cases of Tomas Grocery vs. Delgado Brothers, L-11154, April 29, 1959; Commercial Union Assurance Co. vs. Manila Port Service, L-14948 and L-14972, Oct. 31, 1961; GSIS vs. Manila Port Service, L-13276, Feb. 25, 1961; and Shell Co. of the Phil. vs. Cia. Gral. de Tabacos, L-20230, July 30, 1965. The principal ruling in Shell Co. of the Phil. vs. Cia. Gral. de Tabacos is not applicable here. That ruling is to the effect that a provisional claim filed before the goods are discharged from the carrying vessel being premature and speculative, is not compliance with the requirement that such claim must be filed within 15 days from the date of discharge of the last package. In Commercial Union Assurance Co., Ltd. vs. Manila Port Service, supra, the facts are as follows: The shipment was completely discharged on May 9, 1956; the arrastre operator delivered the same on May 25, 1956; and the consignee filed a provisional claim for loss on the same day. On appeal, this Court reversed the lower court's decision and dismissed the complaint on the ground that the claim was one day late. In GSIS vs. MRR the consignment was discharged into the possession of Manila Port Service on May 22, 1956. On June 12, 1956, the Manila Port Service delivered the same to the consignee, and on the same day the latter filed a formal claim for short delivery. The Manila Port Service invoked paragraph 15 of the management contract. The lower court dismissed the complaint, and the consignee appealed. (L-13276, Feb. 25, 1961) This Court through Mr. Justice Concepcion, now Chief Justice, remanded the case so that the evidence could be taken "with a view to ascertaining whether or not the consignee had reasonable opportunity to comply with the disputed condition of the management contract and, in the negative case, whether or not, considering the date when it was notified of the arrival of the goods, the consignee should be deemed to have acted with the diligence required by the spirit and purpose of said disputed condition, in filing its claim on June 16, 1956." After the requisite proceedings, the lower court rendered a decision on August 20, 1962, stating: (1) that no evidence was presented to show that the consignee knew or was notified of the arrival of the goods earlier than June 2, 1956; (2) that the Customs examiner inspected and found the entire shipment intact on June 11, 1956; (3) that the loss occurred only after the Customs inspection on June 11, 1956 and before delivery to the consignee's broker on June 12, 1956; (4) that it was impossible for the consignee to file its claim within 15 days from the discharge of the shipment by the vessel, since the loss took place only on the 20th or 21st day after said discharge; (5) that the condition being impossible, it was deemed not imposed. Accordingly, the Court ordered the Manila Railroad Company and the Manila Port Service to pay the insurer of the consignee. Upon appeal by the defendants (L-20342, Nov. 29, 1965) this Court, through Justice J. P. Bengzon, said: Appellants invoke Section 15 of the Management contract providing for release of the arrastre operator from liability unless a claim for the value of the goods lost is filed with it within fifteen days from the date of discharge of the last package from the carrying vessel. As ruled by this Court, however, such condition does not strictly apply in all cases. It was not so applied in Republic vs. Manila Port Service, L-19115, March 31, 1964, because in said case the consignee was able to take hold of the shipment only after two months and a half from the arrival of the vessel and the subsequent discharge of the goods therefrom. In Chick Ho vs. Compañia Maritima, L-20553, April 30, 1965, we held that what is important is the date when the shipment was actually delivered to the consignee in order that he may be given the chance to discover if there is something missing or lost in the shipment. As early as Consunji vs. Manila Port Service, L-15551, November 29, 1960, this Court stated that it would be unfair and iniquitous to apply the 15-day proviso where the consignee comes to know the damage or loss only after the lapse of such 15-day period, for instance, where delivery by the contractor takes place 16 days after the discharge of the last package from the vessel. The rule to follow in such cases is that stated in Yu Kimteng Construction vs. Manila Railroad Co., L-17027, Nov. 29, 1965, namely, to count the 15-day period not from the discharge of the last package from the carrying vessel, but from the date the consignee learned or could have learned, of the loss, damage or misdelivery. In the case at bar, as stated, the shipment was delivered to the consignee's broker only on June 12, 1956, after 21 days following its discharge from the carrying vessel; the loss occurred only after the Customs examination on June 11, 1956 but prior to the delivery to the consignee's broker. It is clear that the consignee learned of the loss only on June 12, 1956, when the Manila Port Service effected a delivery that was short by eleven pieces. A provisional claim was filed on June 16, 1956, well within 15 days from such knowledge of the loss. Such claim, therefore, was made on time and is not barred by the provision of Section 15 of the management contract. In the case under reconsideration, the appellant promptly expressed its desire to take delivery of the shipment. It presented to the Manila Port Service the three permits to deliver on June 3, 1957. On June 16, 1957, the Manila Port Service billed the consignee's broker for the full shipment of eight lifts. One of the bills, No. 54142, is dated June 2, 1957, while the other two, Nos. 54143 and 54144, are dated June 16, 1957. But from appellant's uncontroverted statement, it appears that all three bills were presented for payment to appellant on the same day, June 16, 1957. From this fact, it is obvious that as of that date the shipment was still intact. Otherwise the Manila Port Service would not have billed the consignee for the arrastre charges thereon. Since the loss must have occurred after the lapse of fifteen days from date of discharge from the carrying vessel, the consignee could not have filed a claim during that period. It could file a claim only after the loss occurred, and this it did within fifteen days thereafter. Appellant did all it could and was expected to do under the terms of the management contract. The next question refers to the amount of damages that should be paid to appellant. Appellees invoke the provision of paragraph 15 of the management contract that "the Contractor shall be solely responsible as an independent contractor for, and promptly pay to the steamship company, consignee, consignor, or other interested party or parties the invoice value of each package but which in no case shall be more than five hundred peso (P500.00) for each package unless the value is otherwise specified or manifested and the corresponding arrastre charge had been paid." There is indeed no showing that appellant had declared the value of the five missing lifts. It appears from the bills sent by appellees (Nos. 54142 to 54144) that appellant paid the arrastre fees on the basis of the weight of the merchandise, that is, at P5.00 per ton of 1,000 kilos or 40 cu ft. of iron or steel bars (No. 54143); and at P13.50 per ton or any fraction thereof of any single package weighing more than two tons (Nos. 54142 and 54144). However, the defense was not interposed by appellees in their answer to the complaint, and evidence as to the actual value of the missing lifts and the other damages suffered by appellant in order to procure their replacement was duly admitted at the trial. In fact the only reason alleged by appellees in their answer as to why they refused to pay appellant's claim was that it had not been filed within the fifteen-day period stated in the management contract. It was quite late for them to raise the new defense for the first time on appeal. With respect to the award of attorney's fees, it should be noted that in the stipulation of the parties below they expressly left the amount thereof to the discretion of the court. And the amount of P1,000.00 we have awarded is just and reasonable. Wherefore, the motion for reconsideration is denied. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur. The Lawphil Project - Arellano Law Foundation