G.R. No. 116940 Case Digest

G.R. No. 116940 June 11, 1997

The Phil. American Gen. Insurance Co., Inc.

vs Court of Appeals and Felman Shipping Lines

Ponente: Bellosillo

Facts:

July 6, 1983 Coca-cola loaded on board MV Asilda, owned and operated by Felman, 7,500 cases of 1-liter Coca-Cola soft drink bottles to be transported to Zamboanga City to Cebu. The shipment was insured with Philamgen.

July 7, the vessel sank in Zamboanga del Norte. July 15, cocacola filed a claim with respondent Felman for recovery of damages. Felman denied thus prompted cocacola to file an insurance claim with Philamgen. Philamgen later on claimed its right of subrogation against Felman which disclaimed any liability for the loss.

Philamgen alleged that the sinking and loss were due to the vessel's unseaworthiness, that the vessel was improperly manned and its officers were grossly negligent. Felman filed a motion to dismiss saying that there is no right of subrogation in favor of Philamgen was transmitted by the shipper.

RTC dismissed the complaint of Philamgen. CA set aside the dismissal and remanded the case to the lower court for trial on the merits. Felman filed a petition for certiorari but was denied.

RTC rendered judgment in favor of Felman. it ruled that the vessel was seaworthy when it left the port of Zamboanga as evidenced by the certificate issued by the Phil. Coast Guard and the ship owner’s surveyor. Thus, the loss is due to a fortuitous event, in which, no liability should attach unless there is stipulation or negligence.

On appeal, CA rendered judgment finding the vessel unseaworthy for the cargo for being top-heavy and the cocacola bottles were also improperly stored on deck. Nonetheless, the CA denied the claim of Philamgen, saying that Philamgen was not properly subrogated to the rights and interests of the shipper plus the filing of notice of abandonment had absolved the ship owner from liability under the limited liability rule.

Issues: (a) Whether the vessel was seaworthy, (b) whether limited liability rule should apply and (c) whether Philamgen was properly subrogated to the rights against Felman.

Ruling:

(a) The vessel was unseaworthy. The proximate cause thru the findings of the Elite Adjusters, Inc., is the vessel's being top-heavy. Evidence shows that days after the sinking coca-cola bottles were found near the vicinity of the sinking which would mean that the bottles were in fact stowed on deck which the vessel was not designed to carry substantial amount of cargo on deck. The inordinate loading of cargo deck resulted in the decrease of the vessel's metacentric height thus making it unstable.

(b) Art. 587 of the Code of Commerce is not applicable, the agent is liable for the negligent acts of the captain in the care of the goods. This liability however can be limited through abandonment of the vessel, its equipment and freightage. Nonetheless, there are exceptions wherein the ship agent could still be held answerable despite the abandonment, as where the loss or injury was due to the fault of the ship owner and the captain. The international rule is that the right of abandonment of vessels, as legal limitation of liability, does not apply to cases where the injury was occasioned by the fault of the ship owner. Felman was negligent, it cannot therefore escape liability.

(c) Generally, in marine insurance policy, the assured impliedly warrants to the assurer that the vessel is seaworthy and such warranty is as much a term of the contract as if expressly written on the face of the policy. However, the implied warranty of seaworthiness can be excluded by terms in writing in the policy of the clearest language. The marine policy issued by Philamgen to cocacola has dispensed that the "seaworthiness of the vessel as between the assured and the underwriters in hereby admitted."

The result of the admission of seaworthiness by Philamgen may mean two things: (1) the warranty of seaworthiness is fulfilled and (2) the risk of unseaworthiness is assumed by the insurance company. This waiver clause would mean that Philamgen has accepted the risk of unseaworthiness, therefore Philamgen is liable.

On the matter of subrogation, it is provided that;

 Art. 2207.            If the plaintiff's property has been insured, and he has received indemnity from the insurance company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance company shall be subrogated to the rights of the insured against the wrongdoer or the person who has violated the contract. If the amount paid by the insurance company does not fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the person causing the loss or injury.

Pan Malayan Insurance Corp. vs CA: The right of subrogation is not dependent upon, nor does it grow out of any privity of contract or upon payment by the insurance company of the insurance claim. It accrues simply upon payment by the insurance company of the insurance claim.

Therefore, the payment made by PHILAMGEN to Coca-Cola Bottlers Philippines, Inc., gave the former the right to bring an action as subrogee against FELMAN. Having failed to rebut the presumption of fault, the liability of FELMAN for the loss of the 7,500 cases of 1-liter Coca-Cola soft drink bottles is inevitable.

WHEREFORE, the petition is GRANTED. Respondent FELMAN SHIPPING LINES is ordered to pay petitioner PHILIPPINE AMERICAN GENERAL INSURANCE CO., INC.