Saturday, February 11, 2006

29 Thing You Should Know About Transportation Law

1. Contract of Transportation - contract whereby a certain person or association of persons obligate themselves to transport persons, things, news, from one place to another for a fixed price

2. Parties to the Contract of Transportation:
a. Shipper - one who gives rise to the contract of transportation by agreeing to deliver the things or news to be transported, or to present his own person or those of other or others in the case of transportation of passengers
b. Carrier/Conductor - one who binds himself to transport persons, things, or news, as the case may be, or one employed in or engaged in the business of carrying goods for others for hire

3. Common Carrier - person, corporation, firm, association engaged in the business of carrying or transporting passengers, goods or both, by land, water, air, for compensation, offering services to the public; must exercise extraordinary diligence

Private Carrier - not engaged in the business of carrying; no public employment; undertakes to deliver goods/passengers for compensation; requires only ordinary diligence

4. Requisites of Caso Fortuito
a. event independent of human will
b. occurrence makes it impossible for debtor to perform in normal manner
c. debtor free from aggravation/participation
d. impossible to foresee or avoid

5. Contributory negligence does not entitle passengers to recover moral/exemplary damages.

6. Bill of Lading - written acknowledgment of receipt of goods and agreement to transport them to a specific place to a person named or his carrier
It is not indispensable to the creation of a contract of carriage. The contract itself arises from the moment goods are delivered by shipper to carrier and the carrier agrees to carry them.
The function of the Bill of Lading: the legal basis of the contract between the shipper and carrier shall be the bills of lading, by the contents of which all disputes which may arise with regard to their execution and fulfillment shall be decided, no exceptions being admissible other than forgery or material errors in the drafting thereof.
Carrier’s responsibility starts from the moment he receives unconditionally the merchandise personally or through an agent and lasts until he delivers them actually or constructively to the consignee or his agent.
Mere delay in the delivery of goods to consignee does not give right to refuse goods - only breach of contract, ergo damages. If delay is unreasonable, then he may refuse to accept and make carrier liable for conversion.

7. Vessels - those engaged in navigation, whether coastwise or on the high seas, including floating docks, pontoons, dredges, scows and any other floating apparatus destined for the services of the industry or maritime commerce

8. Persons Participating in Maritime Commerce:
a. ship owner and/or ship agent
b. captain or master
c. other officers of the vessel
d. supercargo

9. Liability of Ship owners and Ship agents:
a. civil liability for the acts of the captain
b. civil liability for contracts entered into by the captain to repair, equip and provision the vessel, provided that the amount claimed was invested for the benefit of the vessel
c. civil liability for indemnities in favor of 3rd persons which may arise from the conduct of the captain in the care of the goods which the vessel carried, as well as for the safety of the passengers transported
· Ship owner/ship agent not liable for the obligations contracted by the captain if the latter exceeds his powers and privileges inherent in his position of those which may have been conferred upon him by the former. However, if the amount claimed were made use of for the benefit of the vessel, the ship owner or ship agent is liable.

10. Doctrine of Limited Liability - liability of shipowners is limited to amount of interest in said vessel because of the real and hypothecary nature of maritime law such that where the vessel is entirely lost, the obligation is extinguished.
Exceptions: (1) vessel is not abandoned
(2) claims under workmen’s compensation
(3) injury/damage due to shipowner’s fault
(4) vessel is insured
· The doctrine also applies for claims due to death or injuries to passengers, aside from claims for goods.
· In abandoning the vessel, there is no procedure to be followed. There is neither a prescriptive period within which the ship owner can make the abandonment. He may do so for so long as he is not estopped from invoking the same or do acts inconsistent with abandonment.

11. Roles of the Captain:
a. general agent of the ship owner
b. technical director of the vessels
c. represents the government of the country under whose flag he navigates

12. Loan on Bottomry - made by shipowner/ship agent guaranteed by vessel itself, repayable upon arrival at destination

13. Loan In Respondentia - taken on security of the cargo repayable upon the safe arrival at cargo destination

14. Accidents and Damages in Maritime Commerce:
a. Averages
b. Arrivals Under Stress
c. Collisions
d. Shipwrecks

15. Average:
a. all extraordinary or accidental expenses which may be incurred during the voyage for the preservation of the vessel or cargo or both
b. all damages or deterioration which the vessel may suffer from the time it puts to sea at the port of departure until it casts anchor at the port of destination, and those suffered by the merchandise from the time they are loaded in the port of shipment until they are unloaded in the port of their consignment

16. Simple Average - expenses/damages caused to the vessel/cargo not inured to common benefit and profit of all the persons interested in the vessel and her cargo; borne by respective owners

17. General Average - expenses/damages deliberately caused in order to save the vessel, its cargo or both from a real and known risk
a. deliberately incurred
b. intended to save vessel and cargo or both
c. from real and known risk
d. there is success

18. Formalities for Incurring Gross Average:
a. there must be an assembly of the sailing mate and other officers with the captain including those with interests in the cargo
b. there must be a resolution of the captain
c. the resolution shall be entered in the log book, with the reasons and motives and the votes for and against the resolution
d. the minutes shall be signed by the parties
e. within 24 hours upon arrival at the first port the captain makes, he shall deliver one copy of these minutes to the maritime judicial authority thereat

19. Arrivals under Stress - arrival of the vessel at a port not of destination on account of (a) lack of provisions; (b) well-founded fear of seizure; (c) by reason of accident of the sea disabling it to navigate
When Not Lawful:
a. lack of provisions due to negligence to carry according to usage and customs
b. risk of enemy not well known or manifest
c. defect of vessel due to improper repair
d. malice, negligence, lack of foresight or skill of captain

20. Collision - impact of 2 vessels both of which are moving

21. Allision - striking of a moving vessel against one that is stationary

22. Cases of Collision:
a. due to the fault, negligence or lack of skill of the captain, sailing mate or the complement of the vessel - ship owner liable for the losses and damages (Culpable Fault)
b. due to fortuitous event or force majeure - each vessel and its cargo shall bear its own damages (Fortuitous)
c. it cannot be determined which of the 2 vessels caused the collision - each vessel shall suffer its own damages, and both shall be solidarily responsible for the losses and damages occasioned to their cargoes (Inscrutable Fault)

23. Error in Extremis - sudden movement made by a faultless vessel during the 3rd zone of collision with another vessel which is at fault, even if the said movement is wrong, no responsibility will fall on said vessel

24. Shipwreck - denotes all types of loss/ wreck of a vessel at sea either by being swallowed up by the waves, by running against another vessel or thing at sea or on coast where the vessel is rendered incapable of navigation

25. Salvage - the compensation allowed to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from an impending peril, or such property recovered from actual peril or loss, in cases of shipwrecks, derelict or recapture; a service which one person renders to the owner of a ship or goods by his own labor, preserving the goods or ship which the owner or those entrusted with the care of them either abandoned in distress at sea or are unable to protect and secure; a permit is required to engage in the salvage business

26. Derelict - a ship or cargo which is abandoned and deserted at sea by those who are in charge of it, without any hope of recovering it, or without any intention of returning it

27. Elements of a Valid Salvage:
a. a marine peril
b. service voluntarily rendered when not required as an existing duty or from special contract
c. success, in whole or in part, or that the services rendered contributed to such success

28. Contract of Towage - contract whereby a vessel usually motorized pulls another from one place to another for compensation. It is a contract of services.

29. Difference between Towage and Salvage:
a. crew of salvaging ship is entitled to salvage, and can look to the salvaged vessel for its share
while crew of the towing ship does not have any interest or rights with the remuneration pursuant to the contract;
b. a salvor takes possession and may retain possession until he is paid while a tower has no possessory lien; only an action for recovery of sum of money
c. in towage the court has power to reduce the amount of remuneration if unconscionable while in salvage, court has no power to change amount in towage even if unconscionable.


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