Professional Documents
Culture Documents
Dimayuga DCL
Transcribers:
who solicits?
the agent of the Insurer
But who signs and accepts
epts the application
the insurer is the one who accomplish the
application.
Offeree- insurer
insurance
ce is a highly personal contract.
if a person has to insure his life, he has to undergo medical
examination. Background of insured: his age, work, state of
health, status in life. All these will come to play in the
evaluation for a life insurance by the insurer.
Illustration: You will insure your car. Insurer found out that
you figured in several car
ar accidents every year during the last
4 years. Records show that you are reckless driver.
If you figured in several car accidents, your premium will be
higher than a regular premium.
X has a bldg. Insurer found out that you are convicted of
arson. Insurer
surer will think twice.
Page | 2
b
Example: have you been hospitalized before
No. There is complete reliance
relian
on the
statement of the insured.
Contract of Adhesion
the insured practically does not have any say in the
drafting of the policy
Sec. 3. Any contingent or unknown event, whether past or future, which may
damnify a person having an insurable interest, or create a liability against
him, may be insured against, subject to the provisions of this chapter.
The consent of the husband is not necessary for the validity of an insurance
policy taken out by a married woman on her life or that of her children.
Any minor of the age of eighteen
n years or more, may, notwithstanding such
minority, contract for life, health and accident insurance, with any insurance
company duly authorized to do business in the Philippines, provided the
insurance is taken on his own life and the beneficiary appointed
appoint is the
minor's estate or the minor's father, mother, husband, wife, child, brother or
sister.
INSURABLE INTEREST
What is insurable interest?
an essential element, without insurable interest
there cannot be a valid contract of insurance.
It is something from which one can derive pecuniary
rd
interest in and the 3 person will suffer damage in
case of loss. There is an interest in a thing
Page | 4
How will you apply for a life insurance policy? Who will
determine the amount of the policy?
it depends upon the capacity of the insured to pay
the necessary premium.
If you are the creditor, do you have insurable interest over the
life of your debtor? To what extent?
Up to the extent of the amount of the credit. As a
general rule, Life insurance is not a contract of
indemnity unlike in property insurance. But when
the creditor insures the life of the debtor, it becomes
a contract of indemnity. The purpose is to indemnify
him in case of death of the debtor.
Property Insurance
-there
there is a need for legal
basis (contract of lease)
Ex. friend is leaving for
abroad for 2yrs. In the
meantime, X can occupy her
condo unit.
X has no
insurable interest over the
condo unit of Xs friend.
Allowed to use the prop for
free. The right to stay does
not accrue as legal basis.
Who is a beneficiary?
is a person designated to receive the proceeds in
case of loss or death. One who is entitled to the
proceeds.
Sec.10 par. C
Of any person under legal obligation to him for the payment
of money, or respecting propertyy or services, of which death
or illness might delay or prevent the performance.
Example: Creditor-Debtor
2 Kinds of Beneficiary
Ordinary/ Revocable
Irrevocable
By custom, you have a part in the harvest but you are not the
owner.
r. Do you have an insurable interest over the future
harvest?
remember that expentancy must be coupled with
interest. You are not the owner even if customarily
you have share over the harvest
Life insurance
Extent
of
insurable
interest: life of a person
beyond
pecuniary
estimation
-the
the amount of i.i. of a
person he has in himself
depends
his
financial
capacity to pay the
premium
and
the
application is acceptable to
the insurer, then he can
insure himself for any
amount
No legal basis is needed
favorite
te niece. Designated in a will as a beneficiary of a piece
of property, do you have an insurable interest?
no insurable interest because you only have an
inchoate right just like in the case of insuring the
properties of your parents.
In case of lessor and
nd lessee. Does the lessor have insurable
interest over the property subject of lease?
yes of course because he is the owner
does the lessee have insurable interest?
Yes, he has insurable interest. He is not the owner
but he has a leasehold right which is deemed a legal
title.
Page | 8
Property Insurance
Measure of insurable interest
in the property: Amount that
he may suffer
-for example the amount of
property is 1m, then that is
the insurable interest
-cannot recover more than
the insurable interest
Existence of Insurable
interest at the time of the
loss: (life, health) Insurable
interest must exist at the
time of the inception
insurance but need not
exist thereafter or when
the time of loss
(staying
bec.
of
mere
accommodation. It would be
different if theres ccontract of
lease
Insurable interest must exist
not only at the time of the
inception of contract of
insurance but also when the
loss occurs, although it may
not existing meantime
CONCEALMENT
In a valued policy,, the insured and insurer agreed beforehand
as to the amount/value.
EXPNS:
A change in interest in a thing insured, after the
occurrence of an injury which results in a loss, does
not affect the right of the insured to indemnity for
loss
Reason: have a claim against the insurer
A change of interest in one or several distinct things,
separately insured by one policy, does not avoid the
insurance as to the others
Page | 9
Page | 10
REPRESENTATIONS
What is representation in a contract of insurance?
Oral or written factual statements made by the
insured to induced the insurer to enter into a
contract of insurance; to accept the application for
insurance
Why?
Example:
In life insurance the insured told the underwriter
that he was never hospitalized during the past 10
years
In property insurance the insured told that they
employed security guards
In Marine insurance the insured told the
underwriter that the vessel is 5 years old
When is a representation
entation promissory?
There is a commitment on the part of the insured to
do something in the future
Page | 11
After a policy of life insurance made payable on the death of the insured shall
have been in force during the lifetime of the insured for a period of two years
from the date of its issue
sue or of its last reinstatement, the insurer cannot
prove that the policy is void ab initio or is rescindible by reason of the
fraudulent concealment or misrepresentation of the insured or his agent.
Page | 12
POLICY
What is a policy?
A written instrument in which the terms and
conditions of a contract of insurance are set forth
In non-life
life insurance
The offeror is the insured
The offeree is the insurer
How does the insurer make known to the insured that his
offer is accepted?
The acceptance of the offer is made known to the
t
insured thru the delivery of the policy
Sometimes,
imes, it takes time to evaluate the application for
insurance. Lets say 3 months had passed, there is no reply yet
by the insurer. Can the insured consider that his application is
accepted?
If the policy has not yet been issued, there is no
perfected contract of insurance
Aside from the policy, there is what we call a cover note and
binding slip
Example of Exceptions:
In fire insurance earthquake is an excepted peril.
So if the proximate cause is an earth quake,
qu
no
recovery
Example of Condiitons
The
e residential house should always be tenanted
Round the clock security guard
Fire extinguishers
No installation of explosives
Open policy
Sec. 60. An open policy is one in which the value of the thing
insured is not agreed upon, but is left to be ascertained in case of
loss.
WARRANTIES
Sec. 67. A warranty is either expressed or implied.
Running Policy
When is it express?
It is express when it is included in the policy when it
is part or parcel of the policy itself
Usually
lly in stock insurance like in a
store, the same has inventories
department
In fact,
ct, the policy is not the contract itself. The policy
merely contains the terms and conditions in the
contract of insurance
Page | 15
Promissory warranty
A statement in writing on the part of the insured
that he is going to do or not to do something that is
material to the risk
Example:
No explosives or any hazardous materials shall be
deposited in the premises
That the building will be used exclusively
exclu
for
residential purposes
If the building at the time of the loss is tenanted, not
being used by the owner for residential purposes
that is a violation of a promissory warranty
Affirmative
Promissory
Representation vs Warranty
Warranty
It is a part of the contract
Representation
Not part of the contract, it is
a mere inducement
Not found in the policy
Merely
substantial
compliance
It must be proven that the
representation is material
PREMIUMS
Premiums (payment thereof) is one of the essential elements
of an insurance
e contract. Insofar as the insurer is concerned,
the consideration is the premium to be received from the
insured. Insofar as the insured is concerned, the
consideration is the promise of the insurer to damnify the
insured in case of loss
Exceptions:
In case of life and industrial insurance, it refers to
the grade period.
eriod. In life insurance, a grace period is
given to the insured for the payment of premium
If the insurer acknowledges the receipt of the
premium, although in truth and in fact, there is no
payment yet. That will not, in any way affect the
validity of the policy without prejudice to the right of
the insurer to collect premiums
In case of surety bonds. A surety bond is also a form
of insurance. When a surety bond is issued and the
rd
bond is already in the hands of a 3 person
regardless of the payment of premium,
mium, that surety
bond is considered valid. This is for the protection of
rd
a 3 person
rd
In case of motor vehicle insurance (3 party liability
insurance) when a car is registered, there is a
mandatory requirement that there is a need to get a
rd
rd
3 party liability
bility insurance. This 3 party liability
rd
insurance is in favor of 3 persons who might be
insured. Although there is no payment of premiums
rd
yet, if there is a 3 party liability insurance, it is
exception to the rule because if we apply the general
rd
rule, innocent 3 person will be affected
In Makati Tuscany case, in this case, there is an
agreement between the insurer and insured for
payment of premium by installments. The SC ruled
that the same is valid. It is an exception by way of
jurisprudence
Cover notes
In non-life
life insurance, there is a return of premium.
When an insurance policy is for a definite period and
the insured
sured surrender the same prior to the expiry
date, he is entitled to a corresponding return of
premium
Example: a fire insurance policy is good for 1 year.
The insured paid the premium for 1 year. After 6
months, the insured wants to cancel the policy, can
ca
the insured ask the insurance company to return the
premium corresponding to the remaining half-year?
half
Yes, pro
pro-rata, in the absence of any short
period provision
Page | 18
LOSS
Sec. 83. An agreement
eement not to transfer the claim of the insured against the
insurer after the loss has happened, is void if made before the loss except as
otherwise provided in the case of life insurance.
Under sec 83, the law says that any agreement prohibiting
transfer of claim after loss is void. It may be made by the
parties prior to the loss
Sec. 85. An insurer is liable where the thing insured is rescued from a peril
insured against that would otherwise have caused a loss, if, in the course of
such rescue, the thing is exposed to a peril not
ot insured against, which
permanently deprives the insured of its possession, in whole or in part; or
where a loss is caused by efforts to rescue the thing insured from a peril
insured against.
Sec. 87. An insurer is not liable for a loss caused by the willful act or through
the connivance of the insured; but he iss not exonerated by the negligence of
the insured, or of the insurance agents or others.
The insurer is not liable for loss caused by the willful act or in
connivance with the insured
In life insurance policy suicide no recovery
NOTICE OF LOSS
Sec. 88. In case of loss upon an insurance against fire, an insurer is
exonerated, if notice thereof be not given to him by an insured, or some
person entitled to the benefit of the insurance, without unnecessary delay.
REINSURANCE
What is reinsurance?
It is a case where an insurer insures the risk that he
had assumed with another
anoth
insurer known as
reinsurer
DOUBLE INSURANCE
Who are the parties to a reinsurance contract?
Reinsured
Reinsurer
Sec. 93. A double insurance exists where the same person is insured by
several insurers separately in respect to the same subject and interest.
Automatic reinsurance
Commonly known as reinsurance treaty
Facultative Reinsurance
A voluntary reinsurance
insurance contract entered into by an
insurer from time to time when a need arises
Example: X insurer, a small insurance company, the
writing capacity is only for 50M (the writing capacity
is determined by the capitalization). If an insurance
company is going
oing to write a policy over 50M, he has
to reinsure. Supposing there is an offer for coverage
of 200M. X insurer cannot solely underwrite 200M. X
has to look for reinsurer who are willing to absorb
the excess 150M
ver representations,
In case of facultative reinsurance, whatever
informations that might have been received by the reinsured
should be communicated by the reinsurer because that is a
separate policy. It is not an automatic coverage
MARINE INSURANCE
Sec. 100. The owner of a ship has in all cases an insurable interest
in it, even when it has been chartered by one who covenants to
pay him its value in case of loss: Provided, That in this case the
insurer shall be liable for only that part of the loss which the
insured cannot recover from the charterer.
If it is peril
eril of the ship, the insurer is not liable
If it is FOB destination,
destination the buyer shall assume the
risk only from the time the good reached is
destination, the seller/shipper is the one usually
secures an insurance
Not only the vessel or goods but also expected profits and
freightage can be a subject of insurance
What is concealment
ment in marine insurance?
Failure to disclose any material fact which the
insured know or ought to know and the insurer has
no actual or presumptive knowledge
Page | 23
Why stricter?
Because in marine, the insurer does not have the
opportunity to inspect the subject matter. The vessel
may be in South America, the owner of the vessel
will insure it in Manila. There is no way to inspect
the vessel. The insurer just relies on the
representations made by the owner of the vessel.
Any
ny misrepresentation relative to this matter will not vitiate
of the entire contract not unless it is the cause. If this is the
cause of the loss . . .
Sec. 112. The eventual falsity of a representation as to expectation does not,
in the absence of fraud, avoid a contract of marine insurance.
The vessel had already been lost in the high seas, but the
owner of the vessel does not have any knowle
knowledge or
communication whatsoever that the vessel has been lost. Can
this be a subject matter of marine insurance?
Yes, provided that the owner of the vessel acted in
good faith
In ordinary non-life
life insurance, information received from
third persons, the insured is not bound to disclose the same.
Another example: the owner of the shipyard inspected the
vessel. The shipyard owner told the owner of the vessel that
the vessel needs some repairs because certain parts are only
good for 3 months, this kind of information is material which
must be communicated to the insurer.
Sec. 110. A concealment in a marine insurance, in respect to any of the
following matters, does not vitiate the entire contract, but merely
exonerates the insurer from a loss resulting from the risk concealed:
(a) The national character of the insured;
(b) The liability of the thing insured to capture and detention;
(c) The liability to seizure from breach of foreign laws of trade;
(d) The want of necessary documents;
Page | 24
Sec. 122. If the course of sailing is not fixed by mercantile usage, the
voyage insured by a marine insurance policy is that way between the
places specified, which to a master of ordinary skill and discretion,
would mean the most natural, direct and advantageous.
Sec. 123. Deviation is a departure from the course of the voyage
insured, mentioned in the last two sections, or an unreasonable delay
in pursuing the voyage or the commencement of an enti
entirely different
voyage.
Sec. 118. When the ship becomes unseaworthy during the voyage to which
an insurance relates, an unreasonable delay in repairing the defect
exonerates the insurer on ship or shipowner's interest from liability from any
loss arising therefrom.
Page | 25
Loss
There are 2 kinds of losses. A loss may either be
total
o actual
o constructive
Partial
Why is co-insurance
insurance found only in marine insurance?
The most risky kind of insurance is marine. And the
insurer has to protect itself so that they will be
encourage to cover full coverage if it is marine
insurance
So co-insurance
insurance may take place in any other kind of insurance
ins
provided that it is expressly agreed upon. But in case of
marine insurance, there is no need to provide the same
because it is provided for by law.
FIRE INSURANCE
Sec. 167. As used in this Code, the term "fire insurance" shall include
insurance against
gainst loss by fire, lightning, windstorm, tornado or earthquake
and other allied risks, when such risks are covered by extension to fire
insurance policies or under separate policies.
co
In marine insurance, there is what we call co-insurance.
Page | 27
the
the
the
the
Page | 28
Supposing the fire did not start in that building, the fire
started in an adjoin building but it spread out to the building
insured. In other words, the cause of the fire is in no way
related to the alteration? Is the insurer liable?
ble?
The insurer is not liable although the cause is not the
unauthorized alteration
rd
Sec. 174. Casualty insurance is insurance covering loss or liability arising from
accident or mishap, excluding certain types of loss which by law or custom
are considered as falling exclusively within the scope of other types of
insurance such as fire or marine. It includes, but is not limited to, employer's
liability insurance, motor vehicle liability insurance, plate glass insurance,
burglary and theft insurance, personal accident and health insurance as
written by non-life insurance companies,, and other substantially similar kinds
of insurance.
rd
Example:
The policy will be considered be matured if the
insured
ed survives and reaches the age or 60 or 65
(limited life insurance)
Policy that is payable upon the death of a person
(ordinary life insurance)
When the insured reaches the age of 60, he is going
to receive a monthly of endowment of so much until
he dies (Endowment policy)
In non-life
life insurance, the measure of indemnity is the
insurable interest.. In life insurance, the measure of indemnity
beyond estimation. The value depends upon the agreement
of the parties
The moment that a surety bond is issued and the same was
delivered to the obligee, although there is no payment of
premium yet, such bond is valid. An exception to the cash and
carry rule.
LIFE INSURANCE
Sec. 179. Life insurance is insurance on human lives and insurance
ins
appertaining thereto or connected therewith.
Insured
Insurer
Beneficiary if any
Transportation Laws:
New Civil Code
Code of Commerce
Public Service Act
Carrier of Goods Sea Act
Sec. 180-A. The insurer in a life insurance contract shall be liable in case of
suicides only when it is committed after the policy has been in force for a
period of two years from the date of its issue or of its last reinstatement,
unless the policy provides a shorter period: Provided, however, That suicide
committed
ted in the state of insanity shall be compensable regardless of the
date of commission.
These are the 5 causes that will exempt the carrier from
liability.
In these 5 cases enumerated by law are not the only cases
that may cause damage or loss to the shipper. There are other
fortuitous events that may take place. There are other
fortuitous events which are the proximate cause of the loss or
deterioration. Does it necessarily mean that these 5 cases are
exclusive?
There are other fortuitous events which may be a
ground for exception but in one condition.
condi
The
fortuitous events other than the 5 enumerated, the
carrier must prove extra ordinary diligence. So Aside
from these 5 enumerated cases, other fortuitous
events may be utilized to exempt liability provided
that there is a proof that the carrier exercised
ex
extra
ordinary diligence
Art. 1733. 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.
Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of
the preceding article, 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.
The
he contract of transportation of goods may be oral but
shipment of goods in bulk, this is usually covered by a bill of
lading.
Art. 1744. A stipulation between the common carrier and the shipper or
owner limiting the liability of the former for the loss, destruction, or
deterioration of the goods to a degree less than extraordi
extraordinary diligence shall
be valid, provided it be:
(1) In writing, signed by the shipper or owner;
(2) Supported by a valuable consideration other than the service
rendered by the common carrier; and
(3) Reasonable, just and not contrary to public policy.
Art. 1748. An agreement limiting the common carrier's liability for delay on
account of strikes or riots is valid.
Art. 1749. A stipulation that the common carrier's liability is limited to the
value of the goods appearing in the bill of la
lading, unless the shipper or owner
declares a greater value, is binding.
There are separate cases that has been decided by the court
applying this article.
In determining the amount of freightage to be charged by the
carrier in connection with the transportation
trans
of goods, there
are 2 ways:
By volume
By value
Page | 35
Art. 1752. Even when there is an agreement limiting the liability of the
common carrier in the vigilanc
vigilance over the goods, the common carrier is
disputably presumed to have been negligent in case of their loss, destruction
or deterioration.
Art. 1747. If the common carrier, without just cause, delays the
transportation
n of the goods or changes the stipulated or usual route, the
contract limiting the common carrier's liability cannot be availed of in case of
the loss, destruction, or deterioration of the goods.
Art. 1754. The provisions of Articles 1733 to 1753 shall apply to the
passenger's baggage which is not in his personal custody or in that of his
employee.. As to other baggage, the rules in Articles 1998 and 2000 to 2003
concerning the responsibility of hotel-keepers
hotel
shall be applicable.
Art. 1750. A contract fixing the sum that may be recovered. by the owner or
shipper for the loss, destruction, or deterioration of the goods is valid, if it is
reasonable and just under the circumstances, and has been fairly and freely
agreed upon.
There are various cases where under the law, there carrier is
allowed to limit his liability.
Art. 1751. The fact that the common carrier has no competitor
along the line or route, or a part thereof, to which the contract
cont
refers shall be taken into consideration on the question of
whether or not a stipulation limiting the common carrier's liability
is reasonable, just and in consonance with public policy.
Art. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of
o very
cautious persons, with a due regard for all the circumstances.
Page | 37
The mere fact that there was delay on the part of the
consignee in claiming the goods, does it necessarily mean that
the carrier is already free from liability?
No, the carrier ceases to be a carrier, the carrier
becomes a depositary. As a depositary, the carrier
should exercise ordinary diligence.
Art. 1761. The passenger must observe the diligence of a good father of a
family to avoid injury to himself.
Under
er this article, diligence of a good father of the family in
the selection and supervision of their employees is not a
defense. Remember torts and damages (culpa aquiliana).
If it is a common
on carrier, we apply the NCC on common
carriers and Code of commerce as suppletory law. If it is not a
common carrier (private carrier, we apply the provision of the
NCC on contracts
If you are the shipper, you can tell the carrier, issue me a bill
of lading. If the shipper is not asking for one, the carrier may,
on its own, issue a bill of lading to cover the goods they
transported.
The bill of lading has a 2--fold character, what are the 2-fold
characters of a bill of lading?
The
The carrier not liable for any loss or damage or the goods are
carried
arried at risk of the shipper
shipper is this stipulation valid?
Not valid,, if there is a stipulation in a bill of lading to
refer that the carrier is not liable in case of loss or
damage, that stipulation is null and void. It is against
public policy. According to the NCC, regarding
prohibited provisions, the same is found in the NCC
How will the owner of the bill of lading sell the goods covered
by a non-negotiable bill of lading?
He cannot do it by mere delivery of the bill of lading.
He has to execute a deed of assignment
Buyer insolvent
Goods are in transit
ARTICLE 358. If there is no period fixed for the delivery of the goods the
carrier shall be bound to forward them in the first shipment of the same or
similar goods which he may make point where he must deliver them; and
should he not do so, the damages caused by the delay should be for his
account.
ARTICLE 373. The carrier who makes the delivery of the merchandise to the
consignee by virtue of combined agreements or services with other carriers
shall assume the obligations of those who preceded him in the conveyance,
reserving his right to proceed against the latter if he was not the party
directly responsible
nsible for the fault which gave rise to the claim of the shipper
or consignee.
The carrier who makes the delivery shall likewise acquire all the actions and
rights of those who preceded him in the conveyance.
The shipper and the consignee shall have an immediate
i
right of action
against the carrier who executed the transportation contract, or against the
Conditions:
Seller unpaid
Page | 44
MARITIME COMMERCE
However, the reservation made by the latter shall not relieve them from the
t
responsibilities which they may have incurred by their own acts.
Not only the type of vessel, but also the venue. The
venue is the open sea. If the vessel is being used for
river navigation, that is not covered by maritime
commerce
They are merchant vessels. So if it is a yacht,
yac will the code of
commerce will apply?
No
In spite the fact that the law says that the last carrier
shall assume the responsibility, this is also without
prejudice to right of the consignee to choose anyone
of them. So either A, B or C can be sued by the
consignee
Each co-owner
owner may exempt himself from this liability by the abandonment,
before a notary, of the part of the vessel belonging to him.
ARTICLE 587. The ship agent
nt shall also be civilly liable for the indemnities in
favor of third persons which may arise from the conduct of the captain in the
care of the goods which he loaded on the vessel; but he may exempt himself
therefrom by abandoning the vessel with all her equipments and the freight
it may have earned during the voyage.
ight of dominion.
Ship owner has the right
In the absence of any of these requisites, continuouss possession for ten years
shall be necessary in order to acquire ownership.
If the part owners should not be more than two, the disagreement of views,
if any, shall be decided by the vote off the member having the largest
interest. If the interests are equal, it should be decided by lot.
The person having the smallest share in the ownership shall have one vote;
and proportionately the other part owners as many votes as they have parts
equal to the smallest one.
ARTICLE 586. The shipowner and the ship agent shall be civilly liable for the
acts of the captain and for the obligations contracted by the latter to repair,
equip, and provision the vessel, provided the creditor proves that the
amount claimed was invested for the benefit of the same.
Can a co-owner
owner assume the position of captain of the vessel?
Yes. Under the code of commerce, if a co-owner
co
is
qualified to occupy that position, that co-owner
co
should be given preference
So remember,
emember, the owner and the ship agent is liable, they are
practically on equal footing. Liable for the acts of the captain.
Liable for the contracts of the captain unless the same said
contract redound for the benefit of the vessel, the shipping
Page | 46
2.
3.
4.
5.
3.
4.
5.
For those
ose caused by the misuse of the powers and the
nonfulfillment
fulfillment of the obligations pertaining to him in
accordance with Articles 610 and 612.
6.
8.
CHARTER PARTIES
What is a charter party contract?
Page | 48
ARTICLE 667. The goods loaded shall be liable in the first place for the freight
and expenses thereof during twenty days, to be counted from the date of their
the
delivery or deposit. During this period, the sale of the same may be requested,
even though there be other creditors and the bankruptcy of the shipper or
consignee should occur.
This right may not he made use of, however, on the goods which, after being
bein
delivered, were turned over to a third person without malice on the part of the
latter and for a valuable consideration.
ARTICLE 670. If the person from whom the vessel is chartered, after receiving a
part of the freight, should not find sufficient to make up at least three-fifths of
the amount which the vessel may hold, at the price he may have fixed, he may
substitute for the transportation another vessel inspected and declared
suitable for the same voyage, the expenses of transfer and the increase in the
price of the charter, should there be any, being for his account. Should he not
be able to make this change, he shall undertake the voyage at the time agreed
upon; and should no time have been fixed, within fifteen days from the time
the loading began,, unless otherwise stipulated.
If the owner of the part of the freight already loaded should procure some
more at the same price and under similar or proportionate conditions to those
accepted for the freight received, the person from whom the vessel is
chartered
hartered or the captain can not refuse to accept the rest of the cargo; and
should he do so, the shipper shall have a right to demand that the vessel put to
sea with the cargo which it may have on board.
This is a case where the ship owner, the portion of the vessel
is being chartered. A portion chartered by A, a portion
chartered by B. if it does not reach 3/5 of the vessel, the
owner of the vessel can tell the charterers, I will look for
another vessel because it might be a losing proposition on
the part
rt of the owner of the vessel if he will proceed. The
charterer cannot complain
3.
ARTICLE 690. The charter party shall be rescinded and all actions arising
therefrom shall be extinguished, if, before the vessel puts to sea from the port
of departure, any of the following cases should occur:
1.
A declaration of war or interdiction of commerce with the power to
whose ports the vessel was to make its voyage.
2.
A condition of blockade of the port of destination of said vessel, or
the breaking out of an epidemic after the contract was executed.
3.
The prohibition to receive at the said port the merchandise
constituting
tituting the cargo of the vessel.
4.
An indefinite detention, by reason of an embargo of the vessel by
order of the government, or for any other reason independent of
the will of the ship agent.
5.
The inability of the vessel to navigate, without fault of the captain
ca
or
ship agent.
The unloading shall be made for the account of the charterer.
5.
AVERAGES
Article 806. The following shall be considered averages:
1.
All extraordinary or accidental expenses which may be incurred
2.
ARTICLE 809. As a general rule, simple or particular averages shall include all
the expenses and damages caused
d to the vessel or to her cargo which have not
inured to the common benefit and profit of all the persons interested in the
vessel and her cargo, and especially the following:
1.
The losses suffered by the cargo from the time of its embarkation
until it is unloaded,
loaded, either on account of inherent defect of the
goods or by reason of an accident of the sea or force majeure, and
the expenses incurred to avoid and repair the same.
2.
The losses and expenses suffered by the vessel in its hull, rigging,
arms, and equipment,
ipment, for the same causes and reasons, from the
time it puts to sea from the port of departure until it anchors and
lands in the port of destination.
3.
4.
The wages and victuals of the crew when the vessel is detained or
embargoed by legitimate order or force majeure, if the charter
has been contracted for a fixed sum for the voyage.
5.
6.
The lowest value of the goods sold by the captain in arrivals under
stress for the payment of provisions and in order to save the crew,
or to meet any other need of the vessel, against which the proper
amount shall be charged.
7.
9.
ARTICLE 811. As a general rule, general or gross averages shall include all the
damages and expenses which are deliberately caused in order to save the
vessel, its cargo, or both at thee same time, from a real and known risk, and
particularly the following:
1.
The goods or cash invested in the redemption of the vessel or of the
cargo captured by enemies, privateers, or pirates, and the
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Otherwise, the ship agent and the captain shall be jointly liable.
When is arrival
rival under stress considered unlawful?
ARTICLE 820. An arrival shall not be considered lawful in the following
cases:
1.
If the lack of provisions should arise from the failure to take
the necessary provisions for the voyage according to usage
and customs, orr if they should have been rendered useless or
lost through bad stowage or negligence in their care.
2.
If the risk of enemies, privateers, or pirates should not have
been well known, manifest, and based on positive and
provable facts.
3.
If the defect of the vessel
ve should have arisen from the fact that
it was not repaired, rigged, equipped, and prepared in a
manner suitable for the voyage, or from some erroneous
order of the captain.
4.
When malice, negligence, want of foresight, or lack of skill on
the part of the captain exists in the act causing the damage.
COLLISSION
What is a collision?
Collision is the impact of 2 moving vessels, as
distinguished from allision, but under the code of
commerce Allision is included in the term collision
The captain shall have the deciding vote, and the persons interested in the
cargo, may make the objections and protests they may deem proper, which
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rd
Under this article, the vessel at fault is the one liable for
damages.
Suppose the 2 vessels involved are a steam boat and sail boat,
which of the 2 is the privilege vessel?
Sail boat
ARTICLE 830. If a vessel should collide with another, through fortuitous event
or force majeure, each vessel and its cargo shall bear its own damages.
How
w about jurisprudence derived from the application of the
public service act? Will these decisions still applies?
The grant of certificate of public convenience is assigned now
to DOTC and LTFRB
ARTICLE 837. The civil liability incurred by the shipowners in the case
prescribed in this section, shall be understood as limited to the value of the
vessel with all its appurtenances and freightage earned during the voyage.
The Public Service law is an old law. It was enacted during the
commonwealth days.
Public Service Law has been amended drastically. Various
public utilities now are supervised and regulated by their own
agencies.
Under the public service act, the commission can audit the
accounts of any public utility. The commission or agency may
request the commission on audit to conduct an examination
on the ___ of the public utility, when is this necessary?
SALVAGE LAW
Sec. 2. If the captain of the vessel, or the person acting in his stead, is
present, no one shallll take from the sea, or from the shores or coast
merchandise or effects proceeding from a shipwreck or proceed to the
salvage of the vessel, without the consent of such captain or person acting in
his stead.
Sec. 6. If, while the vessel or things saved are at the disposition of the
authorities, the owner or his represent
representative shall claim them, such
authorities shall order their delivery to such owner or his representative,
provided that there is no controversy over their value, and a bond is given by
the owner or his representative to secure the payment of the expenses and
an
the proper reward. Otherwise, the delivery shall nor be made until the
matter is decided by the Court of First Instance of the province.
Sec. 7. No claim being presented in the three months subsequent to the
publication of the advertisement prescribed in sub-section (c) of Section five,
the things save shall be sold at public auction, and their proceeds, after
deducting the expenses and the proper reward shall be deposited in the
insular treasury. If three years shall pass without anyone claiming it, one-half
on
of the deposit shall be adjudged to him who saved the things, and the other
half to the insular government.
Sec. 12. If in the salvage or in the rendering of assistance different persons
shall have intervened the reward shall be divided between them
th
in
proportion to the services which each one may have rendered, and, in case
of doubt, in equal parts.
Those who, in order to save persons, shall have been exposed to the same
dangers shall also have a right to participation in the reward.
Section 1. When in case of shipwreck, the vessel or its cargo shall be beyond
the control of the crew, or shall have been abandoned by them, and pi
picked
up and conveyed to a safe place by other persons, the latter shall be entitled
to a reward for the salvage.
Those who, not being included in the above paragraph, assist in saving a
vessel or its cargo from shipwreck, shall be entitled to a like reward.
rewar
Sec. 13. If a vessel or its cargo shall have been assisted or saved, entirely or
partially, by another vessel, the reward for salvage or for assistance shall be
divided between the owner, the captain, and the remainder of the crew of
the latter vessel, so as to give the owner a half, the captain a fourth, and all
the remainder of the crew the other fourth of the reward, in proportion to
their respective salaries, in the absence of an agreement to the contrary. The
express of salvage, as well as the reward for salvage or assistance, shall be
b a
charge on the things salvaged on their value.
Instead of a sale, the NCC made it clear that it is not sale, but
a security
Sec. 9. If, during the danger, an agreement is entered into concerning the
amount of the reward for salvage or assistance, its validity may be impugned
because it is excessive, and it may be required to be reduced to an amount
proportionate to the circumstances.
Sec. 10. In a case coming under the last preceding section, as well as in the
absence of an agreement, the reward for salvage or assistance shall be fixed
fixe
by the Court of First Instance of the province where the things salvaged are
found, taking into account principally the expenditures made to recover or
save the vessel or the cargo or both, the zeal demonstrated, the time
employed, the services rendered, the excessive express occasioned the
number of persons who aided, the danger to which they and their vessels
were exposed as well as that which menaced the things recovered or
salvaged, and the value of such things after deducting the expenses.
When does the sale becomes effective under the old law?
If there is a failure on the part of the obligor or
principal debtor to pay, the sale becomes an
absolute one in favor of the creditor
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