Tuesday, July 08, 2008
Shipping firm ‘needs to prove’ it wasn’t negligent in sinking
By Karlon N. Rama
Sun.Star Staff Reporter
CAN a shipping company seek protection from civil liability from a vessel’s sinking by invoking force majeure?
The Supreme Court (SC), in a host of recent rulings, says it can but only if it can also prove that negligence did not play a role in the incident.
Force majeure
In the 1990 case of Bachelor Express, Inc. v. Court of Appeals, the SC maintained: “A common carrier may not be absolved from liability in case of force majeure or fortuitous event alone. The common carrier must still prove that it was not negligent in causing the death or injury resulting from an accident.”
This was affirmed in the High Tribunal’s 1997 ruling in the Yobido vs. Court of Appeals case in 1997 and in many other rulings issued since then.
The burden of proving the point does not belong to the complainant. It is the shipping company that is required to convince the court it wasn’t negligent.
“Common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence,” the SC said in the May 2006 case of Aboitiz Shipping Corp. vs. New India Assurance Co. Ltd.
Presumed negligent
In the event the vessel concerned is adjudged not seaworthy, the ship owner is presumed to be negligent since it is tasked with the maintenance of its vessel, according to the ruling.
Even if the crew is solely responsible for the negligence, the SC, in the Aboitiz case, still places the responsibility on the firm.
“Though this duty can be delegated, still, the ship owner must exercise close supervision over its men,” it said.
The pronouncements of the SC weighed heavily on two Cebu Regional Trial Court (RTC) judges as they separately ruled against Sulpicio Lines in May this year for the 1998 sinking of the mv Princess of the Orient.
A group of survivors and the relatives of some of those who perished filed the cases.
Judge Estela Alma Singco, in a 19-page decision, held Sulpicio Lines liable for the sinking and directed it to pay a family over P6 million in damages for the loss of a relative.
Judge Ramon Codilla, in an 11-page decision, separately directed the shipping company to pay P550,000 to an army officer who survived the tragedy, P200,000 to another survivor and P1 million to a couple who lost a daughter.
Going by its pronouncements on the June 22, 2008 Princess of the Stars tragedy, the company seems poised to cite force majeure again. It has filed a suit against the weather bureau, blaming it for what it described as a wrong forecast.
Singco, in her ruling, took note of two reports - one from the Maritime Industry Authority and the other from the Coast Guard Board of Marine Inquiry (BMI) - that said Ersum Mahilum, captain of the Princess of the Orient, committed errors in his handling of the vessel.
It noted how the ship captain maintained his course and sped up for a certain period even after the ship had already listed three degrees to the left.
“Prudent judgment,” said the report, “would dictate that the captain should have considerably reduced the ship’s speed.”
The findings of the two bodies, the judge said, are significant when taken in tandem with how the same skipper had figured in other incidents before, but was never sanctioned. At least once, his vessel had allegedly sideswiped another Sulpicio ship. Another vessel under his command allegedly caught fire while berthed.
It was established, said Judge Singco, that “the sinking had been caused by the fault of the ship captain and his crew.”
“(And) for failing on the part of the defendant to take disciplinary action against Captain Mahilum relative to those (previous) incidents, and allowing him to retain his job, the defendant unnecessarily exposed the vessel and the passengers to the tragic mishap,” she ruled.
In his ruling, Codilla relied on the same BMI findings on the Orient case.
“The board was able to establish some facts to warrant our findings that indeed not only negligence existed on the part of the key personnel but also incompetence,” Codilla, quoting the BMI results, wrote in the ruling.
The Orient’s chief mate, for example, admitted under oath that he “was not able to make a stability calculation of the ship vis-à-vis her cargo.”
It was also found that the crew “failed to execute and supervise the actual abandon ship procedures” and that “there was no announcement through the public address system to abandon ship, no orderly distribution of life jackets or orderly launching of life rafts.”
Verna Unabia filed the case that Judge Singco resolved. She is the widow of the late Ernesto Unabia, a seaman of 11 years who, at the time of the incident, was employed as the second engineer of a foreign shipping company.
They have three children, John Erve, Orlan and Yves Vincent.
Army Major Victorio Karaan Jr., Ely Liva and spouses Army 2nd Lieutenant Napoleon and Technical Sergeant Herminia Labraque jointly filed the second case.
For Bisaya stories from Cebu. Click here. (July 8, 2008 issue)
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