condition whatsoever, the repayment of the sum loaned and of the premium stipulated depends upon the safe arrival in port of the effects (“efectos”) oh which it is made, or of the value in case of accident, shall be considered a loan on bottomry or respondentia (Art. 719, Code of Commerce). It is also defined as a loan with things exposed to maritime risks as collateral to be paid if the collateral are safely transported and the lender shall lose his money if the latter are lost. It is a loan on bottomry where the security is a vessel, and respondentia where the security is cargo (Perez, Insurance Code and Insolvency Law, 1999 Ed., p. 207, citing Black’s Law Dictionary; Asked, 1961 and 1966 Bar Exams.) Q. A. No. To apply usury law, the principal sum should be absolutely and in all events repayable and therefore, the usury statute has no application to those instances where the repayment of the amount borrowed is contingent upon conditions beyond the control of the parties (Laughlin v. Irwin, 262 III. App. 40) such as a loan on bottomry or respondentia since the lender is, to the extent of his loan, insurer of the vessel (or cargo) for the voyage (Cole v. White, 26 Wend. 511). Q. A. Loans on bottomry or respondentia may be executed: 1. By means of a public instrument. 2. By means of a policy signed by the contracting parties and the broker taking part therein. 3. By means of a private instrument. Under whichever of these forms the contract is executed, it shall be entered in the certificate of the registry of the vessel and shall be recorded in the registry of vessels, without which requisites, the credits of this kind shall not have, with regard to other credits, the preference which, according to their nature, they should have although the obligation shall be valid between the contradicting parties. The contracts made during a voyage shall be governed by the provisions of Articles 583 and 611, and shall be effective with regard to third persons from the date of their execution, if they should be recorded in the registry of vessels of the port of registry of the vessel before the lapse of eight days from the date of her arrival. Should the said eight days elapse without the record having been made in the registry of vessels, the contracts made during the voyage of the vessel shall produce no effect with regard to third persons, except from the day and date of their inscription. In order that the policy of the contracts executed in accordance with No. 2 may have binding force, they must conform to the registry of the broker who took part therein. With respect to those executed in accordance with No. 3, the acknowledgment of the signature shall be required. Contracts which are not reduced to writing shall not give rise to judicial action (Art. 720, Code of Commerce). Q. A. The following are the distinctions between an ordinary loan and a loan on bottomry or respondentia: 1. An ordinary loan may or may not have a collateral, while a loan on bottomry or respondentia must have a collateral (Art. 721[61, Code of Commerce). 2. The collateral of an ordinary loan may be any property, real or personal, while the collateral of a loan on bottomry or respondentia must be a vessel or cargo subject to maritime risks. 3. An ordinary loan is absolutely repayable, while payment of a loan on bottomry or respondentia depends upon the safe arrival at the port of the collateral of the loan. 4. An ordinary loan is subject to usury law, while a loan on bottomry or respondentia is not subject to usury law. 5. An ordinary loan need not be in writing but interest shall not be due unless expressly stipulated in writing (Art. 1956, Civil Code), while a loan on bottomry or respondentia must be in writing (Art. 720, Code of Commerce). 6. To be binding on third persons, an ordinary loan need not be registered, while a loan on bottomry or respondentia must be recorded in the registry of vessels of the port of registry of the vessel (Art. 720, Code of Commerce). 7. The loss of the collateral if any, in an ordinary loan does not extinguish the same, while the loss of the collateral in loan on bottomry or respondentia extinguishes the same (Art. 731, Code of Commerce). Q. A. In a contract on bottomry or respondentia, the following must be stated: 1. The kind, name, and registry of the vessel. 2. The name, surname, and domicile of the captain. 3. The names, surnames, and domiciles of the person giving and the person receiving the loan. 4. The amount of the loan and the premium stipulated. 5. The time for repayment. 6. The objects pledged to secure repayment. 7. The voyage during which the risk is run (Art. 721, Code of Commerce). Q. A. The contracts may be made to order, in which case they shall be transferable by indorsement, and the indorsee shall acquire all the rights and shall incur all the risks corresponding to the indorser (Art. 722, Code of Commerce). However, a bottomry obligation, payable to order on arrival at the port of destination, is not such a negotiable instrument as to give the indorsee any better rights than those of the payee (The Lykus, D.C.N.Y., 36 F. 919). Nonetheless, the bottomry obligation is assignable (Burke v. The M. P. Rich., C.C.Mass., 4 F.Cas. No.2, 161, 1 Cliff. 308). Q. A. Loans may be made in effects and in goods by fixing their value in order to determine the principal of the loan. The loans may be constituted jointly or separately: 1. On the hull of the vessel, 2. On the rigging. 3. On the equipment, provisions, and fuel. 4. On the engine, if the vessel is a steamer. 5. On the goods loaded. If the loan is constituted on the hull of the vessel, it shall also be considered that the rigging, equipment and other effects, provisions, fuel steam engines, and the freight earned during the voyage on which the loan is made, are included in the liability for the loan. If the loan is made on the cargo, all that which constitutes the same shall be subject to the repayment; and if on a particular object of the vessel or of the cargo, only the object concretely and specifically mentioned shall be liable (Art. 724, Code of Commerce). Q. A. No loans on bottomry may be made on the salaries of the crew, or on the profits which may be expected (Art. 725, Code of Commerce). The reason for this rule is that the salaries of the crew are not part of the capital of the shipowner, nor are future profits or commercial effects that could be given as collateral (Del Viso, p. 593). Q. A. If the lender should prove that the loaned an amount larger than the value of the object liable for the bottomry loan on account of fraudulent means employed by the borrower, the loan shall be valid only for the amount at which said object is appraised by experts. The surplus principal shall be returned with legal interest for the entire time required for the repayment (Art. 726, Code of Commerce). Q. A. If the full amount of the loan contracted in order to load the vessel should not be used for the cargo, the balance shall be returned before starting the voyage. The same procedure shall be observed with regard to the goods taken as a loan if all of them could not have been loaded (Art. 727, Code of Commerce). Q. A. The loan which the captain takes at the point of residence of the owners of the vessel shall only affect that part of the vessel which belongs to the captain, if the other owners or their agents should not have given their express authorization therefor or should not have taken part in the transaction. If one or more of the owners should be requested to furnish the amount necessary to repair or provision the vessel and they should not do so within twenty-four hours, the interest which the parties in default may have in the vessel shall be liable for the loan in the proper proportion. Outside the residence of the owners the captain may contract loans in accordance with the provisions of Articles 583 and 611 (Art. 728, Code of Commerce). Q. In the following instances, the contract is considered a simple loan and not a loan on bottomry or respondentia: 1. When the loan on bottomry is larger than the value of the object liable for the loan on bottomry on account of fraudulent means employed by the borrower, the loan on the amount in excess of the value of the object as appraised by experts is a simple loan (Art. 726, Code of Commerce). 2. If the amount of the loan contracted in order to load the vessel should be used for the cargo, the balance shall be considered as a simple loan (Art. 727, Code of Commerce). 3. Should the effects on which money is taken is not subjected to risk, the contract shall be considered a simple loan, with the obligation on the part of the borrower to return the principal and interest at the legal rate, if that agreed upon should not be lower (Art. 729, Code of Commerce). Q. A. Loans made during the voyage shall have preference over those made before the clearing of the vessel, and they shall be graduated in the inverse order of their dates. The loans for the last voyage shall have preference over the prior ones. Should several loans have been made at the same port of arrival under stress and for the same purpose, all of them shall be paid pro rata (Art. 730, Code of Commerce). Q. A. The reason for the law in giving preference to later loans is that without the said loans, the prior loans would have gone into the bottom of the sea together with the vessel. Thus, by virtue of the subsequent loans, the vessel is saved and the previous loans are able to exist and subsist (The Mary, C.C.Conn., 16 F. Cas. No. 9, 187, 1 Paine 671; Del Viso, p. 596). Q. A. The actions pertaining to the lender shall be extinguished by the absolute loss of the effects on which the loan was made, if it arose from an accident of the sea at the time and during the voyage designated in the contract, and it is proven that the cargo was on board; but this shall take place if the loss was caused by the inherent defect of the thing, or through the fault or malice of the borrower, or through barratry on the part of the captain, or if it was caused by damages suffered by the vessel as a consequence of being engaged in contraband, or if it arose from having loaded the goods on a vessel different from that designated in the contract, unless this change should have been made by reason of force majeure. Proof of the loss as well as of the existence in the vessel of the effects declared to the lender as the object of the loan, is incumbent upon him who received the loan (Art. 731, Code of Commerce). Q. A. As stated in the foregoing provision, the total loss of the collateral of the loan on respondentia extinguishes the same if it arose from an accident of the sea at the time and during the voyage designated in the contract, and it is proven that the cargo was on board (Art. 731, Code of Commerce). The exceptions are: (1) If the loss was caused by the inherent defect of the thing; (2) If the loss was caused by the fault or malice of the borrower; (3) If the loss was caused by barratry of the captain; (4) If it was caused by damages suffered by the vessel as a consequence of being engaged in contraband; (5) If it arose from having loaded the goods on a vessel different from that designated in the contract, unless the change should have been made by reason of force majeure (Art. 731, Code of Commerce). Q. A. Barratry is any willful misconduct on the part of the master or crew in pursuance of some unlawful or fraudulent purpose without the consent of the owners, and to the prejudice of the owner’s interest (Perez, Insurance Code and Insolvency Law, 1999 Ed., p. 202). Q. A. Lenders on bottomry or respondentia shall suffer in proportion to their respective interest, the general average which may take place in the things on which the loan was made. In particular averages, in the absence of an express agreement between the contracting parties, the lender on bottomry or respondentia shall also contribute in proportion to his respective interest, should it not belong to the kind of risks excepted in the preceding article (Art. 732, Code of Commerce). Q. A. (a) The general average contribution of A’s cargo that was saved, to the owners of the other cargoes that were thrown overboard to lighten the load of the vessel, shall be shared between A, as owner and B, as lender on respondentia, in proportion to their respective interests. Since the loan amounts to 2/3 of the value of the cargo, the lender, B must share the general average in the same proportion, while A shall bear 1/3 of the general average. Thus, A shall share P10,000 while B shall share P20,000. (b) For the particular average, the owner of the cargo and the lender on respondentia shall likewise share the damage to the extent of their respective interests unless otherwise agreed upon by the parties. Thus, A’s share is 1/3 of the damage or P40,000 while B’s share is 2/3 of the particular average or P80,000. Q. A. Should the period during which the lender shall run the risk not have been started in the contract, it shall last, with regard to the vessel, engines, rigging, and equipment, from the moment said vessel puts to sea until she drops anchor in the port of destination; and with regard to the goods, from the time they are loaded on the shore or wharf of the port of shipment until they are unloaded in the port of consignment (Art. 733, Code of Commerce). Q. A. In case of shipwreck, the amount for the payment of the loan shall be reduced to the proceeds of the effects saved, after deducting the costs of the salvage. If the loan should be on the vessel or any of her parts, the freight earned during the voyage for which said loan was contracted shall also be liable for its payment, as far as it may reach (Art. 734, Code of Commerce). Q. A. If the same vessel or cargo should be the object of a loan on bottomry or respondentia and marine, insurance, the value of what may be saved in case of shipwreck shall be divided between the lender and the insurer, in proportion to the legitimate interest of each one, taking into consideration, for this purpose, only the principal with respect to the loan, and without prejudice to the right of preference of other creditors in accordance with Article 580 (Art. 735, Code of Commerce). Q. A. If there should be delay in the repayment of the principal and premiums of the loan, only the former shall bear legal interest (Art. 736, Code of Commerce). Section III — Marine Insurance This portion is now governed by the Insurance Code. Q. A. For the purpose of this Code the following shall be considered averages: 1. All extraordinary or accidental expenses which may be incurred during the voyage for the preservation of the vessel or cargo, or both. 2. All damages or deterioration which the vessel may suffer from the time she puts to sea at the port of departure until she casts anchor at the port of destination, and those suffered by the goods from the time they are loaded in the port of shipment until they are unloaded in the port of their consignment (Art. 806, Code of Commerce; Asked, 1961 Bar Exams.). Q. A. The petty and ordinary expenses incident to navigation, such as those of pilotage of coast and ports, lighterage and towage, anchorage, inspection, health, quarantine, lazaretto, and other so- called port expenses, costs of barges, and unloading, until the goods are placed on the wharf, and other usual expenses of navigation shall be considered ordinary expenses to be defrayed by the shipowner, unless there is an express agreement to the contrary (Art. 807, Code of Commerce). Q. A. Averages shall be: 1. Simple or particular. 2. General or gross (Art. 808, Code of Commerce). Q. A. As a general rule, simple or particular averages include all the expenses and damage caused 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, especially the following: 1. The damage suffered by the cargo from the time of its embarkation until it is unloaded, either on account of the inherent defect of the goods or by reason of a marine accident or force majeure, and the expenses incurred to avoid and repair the same. 2. The damage and expenses suffered by the vessel in her hull, rigging, arms, and equipment, for the same causes and reasons, from the time she puts to sea from the port of departure until she anchors in the port of destination. 3. The damage suffered by the goods loaded on deck, except in coastwise navigation, if the marine ordinances allow it. 4. The wages and victuals of the crew when the vessel is detained or embargoed by a legitimate order or force majeure, if the charter has been contracted for a fixed sum for the voyage. 5. The necessary expenses on arrival at a port, in order to make repairs or secure provisions. 6. The lowest value of the goods sold by the captain in arrivals under stress for the payment of provisions and to save the crew, or to meet any other need of the vessel against which the proper amount shall be charged. 7. The victuals and wages of the crew while the vessel is in quarantine. 8. The damage inflicted upon the vessel or cargo by reason of an impact or collision with another, if it is accidental and inevitable. If the accident should occur through the fault or negligence of the captain, the latter shall be liable for all the damage caused. 9. Any damage suffered by the cargo through the fault, negligence, or barratry of the captain or of the crew, without prejudice to the right of the owner to recover the corresponding indemnity from the captain, the vessel, and the freight (Art. 809, Code of Commerce). Q. A. The owner of the things which gave rise to the expenses or suffered the damage shall bear the simple or particular averages (Art. 810, Code of Commerce). Q. A. General or gross averages shall, as a general rule, include all the damages and expenses which are deliberately caused in order to save the vessel, her cargo, or both at the same time, from a real known risk, and particularly the following: 1. The effects or cash invested in the redemption of the vessel or the cargo captured by enemies, privateers, or pirates, and the provisions, wages, and expenses of the vessels detained during the time the settlement or redemption is being made. 2. The effects jettisoned to lighten the vessel, whether they belong to the cargo, to the vessel, or to the crew, and the damage suffered through said act by the effects which are kept on board. 3. The cables and masts which are cut or rendered useless, the anchors and the chains which are abandoned, in order to save the cargo, the vessel, or both. 4. The expenses of removing or transferring a portion of the cargo in order to lighten the vessel and place it in condition to enter a port or roadstead, and the damage resulting therefrom to the effects removed or transferred. 5. The damage suffered by the effects loaded as cargo by the opening made in the vessel in order to drain her and prevent her from sinking. 6. The expenses caused in order to float a vessel intentionally stranded for the purpose of saving her. 7. The damage caused to the vessel which had to be opened, scuttled or broken in order to save the cargo. 8. The expenses for the treatment and subsistence of the members of the crew who may have been wounded or crippled in defending or saving the vessel. 9. The wages of any member of the crew held as hostage by enemies, privateers, or pirates, and the necessary expenses which he may incur in his imprisonment, until he is returned to the vessel or to his domicile, should he prefer it. 10. The wages and victuals of the crew of a vessel chartered by the month, during the time that she is embargoed or detained by force majeure or by order of the Government, or in order to repair the damage caused for the common benefit. 11. The depreciation resulting in the value of the goods sold at arrivals under stress in order to repair the vessel by reason of gross average. 12. The expenses of the liquidation of the average (Art. 811, Code of Commerce; Asked, 1955 Bar Exams.). Q. A. In order to satisfy the amount of the gross or general averages, all the persons having an interest in the vessel and cargo therein at the time of the occurrence of the average shall contribute (Art. 812, Code of Commerce). Q. A. The following are the distinctions between particular or simple averages and general or gross averages: 1. Particular or simple averages have not inured to the common benefit and profit of all persons interested in the vessel and her cargo, while general or gross averages are caused for the benefit of those interested in the vessel and her cargo (Art. 809 and Art. 811, Code of Commerce). 2. General or gross averages are deliberately caused in order to save the vessel and/or her cargo, while particular or simple averages may be due to causes other than a deliberate act (Ibid.). 3. Particular or simple averages are borne by the owner of the things damaged, while general or gross averages shall be shared and contributed by all persons having an interest in the vessel and cargo (Art. 810 and Art. 812, Code of Commerce). Q. A. In order to incur the expenses and cause the damage corresponding to gross average, the following formalities must be followed: 1. There must be a resolution of the captain, adopted after deliberation with the sailing mate and other officers of the vessel, and after hearing the persons interested in the cargo who may be present. If the latter should object, and the captain and officers of a majority of them, or the captain, if opposed to the majority, should consider certain measures necessary, they may be executed under his responsibility, without prejudice to the right of the shippers to proceed against the captain before the competent judge or court, if they can prove that he acted with malice, lack of skill, or negligence. If the persons interested in the cargo, being on board the vessel, have not been heard, they shall not contribute to the gross average, their share being chargeable against the captain, unless the urgency of the case should be such that the time necessary for previous deliberation was wanting (Art. 813, Code of Commerce). If the persons interested in the cargo, being on board the vessel, have not been heard, they shall not contribute to the gross average, their share being chargeable against the captain, unless the urgency of the case should be such that the time necessary for previous deliberation was wanting (Art. 813, Code of Commerce). 2. The resolution adopted to cause the damage which constitutes general average must necessarily be entered in the log books, stating the motives and reasons on which it is based, the votes against it and the reason for the dissent, should there be any, and the irresistible and urgent causes which impelled the captain, if he acted of his own accord (Par. 1, Art. 814, Code of Commerce). 3. In the first case mentioned above, the minutes shall be signed by all the persons present who could do so before taking action, if possible, and if not, at the first opportunity. In the second case, it shall be signed by the captain and officers of the vessel (Par. 2, Art. 814, Code of Commerce). 4. In the minutes, and after the resolution, shall be stated in detail all the objects jettisoned, and mention shall be made of the injuries caused to those kept on board. The captain shall be obliged to deliver one copy of these minutes to the maritime or judicial authority of the first port he may make, within twenty-four hours after his arrival, and to ratify it immediately under oath (Par. 3, Art. 814, Code of Commerce). Q. A. The captain shall direct the jettison, and shall order the effects cast overboard in the following order: 1. Those which are on deck, beginning with those which embarrass the maneuver or damage the vessel, preferring, if possible, the heaviest ones with the least utility and value. 2. Those which are below the upper deck, always beginning with those of the greatest weight and smallest value, to the amount and number absolutely indispensable (Art. 815, Code of Commerce). Q. A. In order that the effects jettisoned may be included in the gross average and the owners thereof be entitled to indemnity, it shall be necessary in so far as the cargo is concerned that their existence on board be proven by means of the bill of lading; and, with regard to those belonging to the vessel, by means of the inventory prepared before the departure, in accordance with the first paragraph of Article 612 (Art. 816, Code of Commerce). Q. A. If in lightening a vessel on account of storm, in order to facilitate her entry into a port or roadstead, part of her cargo should be transferred to lighters or barges and be lost, the owner of said part shall be entitled to indemnity, as if the loss had originated from a gross average, the amount thereof being distributed between the vessel and cargo from which it came. If, on the contrary, the goods transferred should be saved and the vessel should be lost, no liability may be demanded of the salvage (Art. 817, Code of Commerce). Q. A. If, as a necessary measure to extinguish a fire in a port, roadstead, creek, or bay, it should be decided to sink any vessel, this loss shall be considered gross average, to which the vessels saved shall contribute (Art. 808, Code of Commerce). Q. A. Arrival under stress means the arrival of the vessel at the nearest and most convenient port because the vessel cannot continue the trip to the port of destination on account of the lack of provisions, well-founded fear of seizure, privateers, or pirates, or by reason of any accident of the sea disabling her to navigate (Art. 819, Code of Commerce). Q. A. Arrival under stress may be made if the captain should believe that the vessel cannot continue the trip to the port of destination on account of any of the following reasons: 1. Lack of provisions; 2. Well-founded fear of seizure, privateers, or pirates; or 3. Accident of the sea disabling the vessel to navigate (Art. 819, Code of Commerce). Q. A. The captain shall assemble the officers and shall summon the persons interested in the cargo who may be present, and who may attend the meeting without the right to vote; and if, after examining the circumstances of the case, the reason should be considered well-founded, the arrival at the nearest and most convenient port shall be agreed upon, drafting and entering in the log book the proper minutes, which shall be signed by all. 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 shall be entered in the minutes in order that they may make use thereof in the manner they may consider advisable (Art. 819, Code of Commerce). Q. A. 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 custom, or 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 acts. 3. If the defect of the vessel should have arisen from the fact that she wants not repaired, rigged, equipped, and prepared in a manner suitable for the voyage, or from some erroneous orders of the captain. 4. Whenever malice, negligence, lack of foresight, or want of skill on the part of the captain exists in the act causing the damage (Art. 820, Code of Commerce). Q. A. The expenses of an arrival under stress shall always be for the account of the shipowner or ship agent, but they shall not be liable for the damage which may be caused the shippers by reason of the arrival, provided the latter is lawful. Otherwise, the ship agent and the captains shall be jointly liable (Art. 821, Code of Commerce). Q. A. If in order to make repairs to the vessel or because there is danger that the cargo may suffer damage, it should be necessary to unload, the captain must request authorization from the competent judge or court for the removal, and carry it out with the knowledge of the person interested in the cargo, or his representative, if there be any. In a foreign port, it shall be the duty of the Filipino consul, where there is one, to give the authorization. In the first case, the expenses shall be for the account of the ship agent or owner and in the second, they shall be chargeable against the owners of the goods for whose benefit the act was performed. If the unloading should take place for both reasons, the expenses shall be divided proportionately between the value of the vessel and that of the cargo (Art. 822, Code of Commerce). Q. A. The custody and preservation of the cargo which has been unloaded shall be entrusted to the captain, who shall be responsible for the same, except in cases of force majeure (Art. 823, Code of Commerce). Q. A. If the entire cargo or part thereof should appear to be damaged, or there should be imminent danger of its being damaged, the captain may request of the competent judge or court, or of the consul in a proper case, the sale of all or of part of the former, and the person taking cognizance of the matter shall authorize it, after an examination and declaration of experts, advertisements, and other formalities required by the case, and an entry in the book, in accordance with the provisions of Article 624. The captain shall, in proper case, justify; the legality of his conduct, under the penalty of answering to the shipper for the price the goods would have brought if they had arrived in good condition at the port of destination (Art. 824, Code of Commerce). Q. A. The captain shall be liable for the damage caused by his delay, if after the cause of the arrival under stress has ceased, he should not continue the voyage. If the cause of the arrival should have been the fear of enemies, privateers, or pirates, a deliberation and resolution in a meeting of the officers of the vessel and persons interested in the cargo who may be present, in accordance with the provisions contained in Article 819, shall precede the departure (Art. 825, Code of Commerce). Section III Collisions Q. A. In the strict sense, collision means the impact of two vessels both moving, and is distinguished from allision, which designates the striking of a moving vessel against one that is stationary. But collision is used in a broad sense to include allision, and perhaps another species of encounters between vessels, or a vessel and other floating, though non-navigable, objects (Blacks Law Dictionary, citing Wright v. Brown, 4 Ind. 97, 58 Am. Dec. 622). Q. A. In collisions between vessels, there exist three divisions of time or zones: The first division covers all the time up to the moment when the risk of collision may be said to have begun. Within this zone, no rule is applicable because none is necessary. Each vessel is free to direct its course as it deems best, without reference to the movement of the other vessel. The second division covers the time between the moment when the risk of collision begins and the moment when it has became a practical certainty. The third division covers the time between the moment when collision had become a practical certainty and the moment of actual contact (Urrutia & Co. vs. Baco River Plantation, 26 Phil. 632, 636). Q. A. The fundamental principle is to keep out of the way by a prudent and safe margin, having reference to all the contingencies of navigation (The Yuma, 132 Fed. 964, 66 CCA 74). The specific rules are as follows: (a) Crossing Ahead — The rules direct that the vessel required to keep out of the way shall, if the circumstances of the case admit, avoid coming ahead of the other. A crossing vessel on the starboard side is privileged but waives her privilege by assenting to the crossing of the other vessel across her bows (International Rules Art. 22, 26 U.S. St. at L. 327, p. 802; The Albatross, 184 Fed. 363). However, where the burdened vessel attempts to cross the other’s bows, she assumes the risk of the maneuver, and the privileged vessel will not be held at fault for not stopping, unless danger is apparent (The Captain Bennett, 171 Fed. 973; The Zouave, 90 Fed. 440). (b) Duty of privileged vessel — It is the duty of the vessel having the right of way, when approaching another vessel charged with the obligation of avoiding her, to keep her course, to enable the other vessel to keep out of the way (International Rules Art. 21, 26 US. St. at L. 327, p. 802). Q. A. (a) Starboard is the right- hand side of a vessel when the observer faces forward. “Starboard tack” is the course of vessel when she has the wind on her starboard bow (Black’s Law Dictionary, citing Burrows v. Gower, D.C.Mass., 119 F. 617). (b) Port is the left- hand side of a ship or airplane as one faces forward, toward the bow. Port is the opposite of starboard. (c) Bow is the front part of the ship or airplane. Q. A. Where a navigator, suddenly realizing that a collision is imminent by no fault of his own, in confusion and excitement of the moment does something which contributes to the collision or omits to do something by which the collision might be avoided, such act or omission is ordinarily considered to be in extremis and the ordinary rules of strict accountability do not apply (The Norne, C.C.A.La., 59 F. 2d 145 — Royal Mall Steam Packet Co. v. Cornapnhia De Navegacao Lloyd Brasileiro, D.C.N.Y., 50 F.2d 207). Q. A. Before the rule of “error in extremis” can be allowed it must appear that there was an imminent danger, for the error of judgment is excusable only if it was committed during such peril (The William A. Paine, C.C.A. Ohio, 39 F.2d 586). Furthermore, it is the actual risk of danger and not apprehension merely that determines the question whether the error is one in extremis (The Pangussett, D.C.N.Y., 9 F. 109). What the rule does mean is that a navigator handling a ship in extremis is not to be held to the exercise of that cool and deliberate judgment which facts developing later indicate to have been the proper or better course (A. H. Bull S.S. Co. v. U.S., C.C.A.N.Y., 34 F.2d 614). It should not be overlooked that in case of an imminent peril it is proper for a navigator to disregard regulations in order to avert disaster (The Wyomissing, D.C.N.J., 2 F.Supp. 954). Q. A. If a vessel should collide with another, through the fault, negligence, or want of skill of the captain, sailing mate, or any other member of the complement, the owner of the vessel at fault shall indemnify the damages suffered, after an expert appraisal (Art. 826, Code of Commerce). Q. A. M/V Don Sulpicio must assume responsibility as it was in a better position to avoid the collision. It should have blown its horn or given signs to warn the other vessel that it was to overtake it. Assuming argumenti ex gratia that F/B Aquarius “G” had no lookout during the collision, the omission does not suffice to exculpate Sulpicio Lines from liability. M/V Don Sulpicio cannot claim that it was a privileged vessel being in the portside which can maintain its course and speed during the collision. When it overtook F/B Aquarius “G”, it was duty bound to slacken its speed and keep away from other vessels, which it failed to do (Sulpicio Lines, Inc. vs. Court of Appeals, G. R. No. 93291, March 29, 1999, 105 SCAD 259). Q. A. If the collision is imputable to both vessels, each one shall suffer her own damage, and both shall be solidarily liable for the damages occasioned to their cargoes (Art. 827, Code of Commerce; Asked, 1980, 1987, 1991 and 1995 Bar Exams.). Q. A. The doctrine of “Inscrutable Fault” means that the court can see that a fault has been committed, but is unable, from the conflict of testimony, or otherwise to locate it. Hence, when it is impossible to determine to what direct and specific acts the collision is attributable, it is a case of damage arising from a cause that is inscrutable (The Fern and The Swann, Fed, Cas. #8,588). Q. A. In case it cannot be determined which of the two vessels has caused the Collision, each one shall suffer her own damage and both shall be solidarily liable for the damages occasioned to their Cargoes (Art. 828, Code of Commerce; Asked, 1980 and 1995 Bar Exams.). In other words, the same rule shall apply in case the collision is imputable to both vessels or it cannot be determined which of the two vessels has caused the collision, i.e., each one shall suffer her own damage. Q. A. If a vessel should collide with another through fortuitous event or force majeure, each vessel and her cargo shall suffer their own respective damage (Art. 830, Code of Commerce; Asked, 1966, 1987 and 1995 Bar Exams.). Q. A. If a vessel should be forced by a third vessel to collide with another, the shipowner of the third vessel shall indemnify the damages caused, the captain thereof being civilly liable to said owner (Art. 831, Code of Commerce). Q. A. No. The carrier, not the charterer warrants impliedly the seaworthiness of the ship. The failure of the carrier to maintain the vessel in a seaworthy condition is a breach of its obligation. The charterer of a vessel has no obligation before transporting its cargo to ensure that the vessel it chartered complied with all legal requirements. The duty rests upon the common carrier simply for being engaged in “public service.” Shippers of goods when transacting with common carriers, are not expected to inquire into the vessel’s seaworthiness, genuineness of its licenses and compliance with all maritime laws (Caltex [Phils.], Inc. vs. Sulpicio Lines, Inc., G. R. No. 131166, Sept. 30, 1999, 113 SCAD 471). Q. A. If, by reason of a storm or other cause of force majeure, a vessel which is properly anchored and moored should collide with those nearby, causing them damage, the injury occasioned shall be considered as particular average of the vessel run into (Art. 832, Code of Commerce). Q. A. A vessel which, upon being run into, sinks immediately, as well as that which, having been obliged to make a port to repair the damage caused by the collision, is lost during the voyage or is obliged to be stranded in order to be saved, shall be presumed as lost by reason of collision (Art. 833, Code of Commerce). Q. A. If the vessels colliding with each other should have pilots on board discharging their duties at the time of the collision, their presence shall not exempt the captains from the liabilities they incur, but the latter shall have the right to be indemnified by the pilots, without prejudice to the criminal liability which the latter may incur (Art. 834, Code of Commerce). Q. A. The action for the recovery of damages arising from collisions cannot be admitted if a protest or declaration is not presented within twenty- four hours before the competent authority of the point where the collision took place, or that of the first port of arrival of the vessel, if in Philippine territory, and to the Filipino consul if it occurred in a foreign country (Art. 835, Code of Commerce; Asked, 1969 Bar Exams.). However, with respect to the damage caused to persons to the cargo, the absence of a protest may not prejudice the persons interested who were not on board or were not in a condition to make known their wishes (Art. 836, Code of Commerce). Q. A. Protest after a collision shall not be necessary in the following instances: 1. In case the basis of the action is quasi- delicts (Lopez vs. Duruelo, 52 Phil. 229). 2. In case of collision of a motor boat engaged in conveying passengers between the ship and the shore, and a larger vessel, since the provision on collision is intended to cover collisions of sea-going vessels (Lopez vs. Duruelo, supra). 3. In case the person interested in the damage was not on board or was not in a condition to make known his wishes (Art. 836, Code of Commerce; Asked, 1977 Bar Exams.). Q. A. The civil liability incurred by the shipowners in the cases prescribed in this section, shall be understood as limited to the value of the vessel with all her appurtenances and freight earned during the voyage (Art. 837, Code of Commerce; Asked, 1978 and 1991 Bar Exams.). Thus, the shipowner or ship agent of a vessel causing the loss of another vessel by collision is not liable beyond the vessel itself causing the collision and other things appertaining thereto (Philippine Shipping Co. vs. Vergara, 6 Phil. 281). The loss of the vessel extinguishes the liability of the shipowner or ship agent of a vessel for the damage caused by collision. However, where such vessel is insured and the insurance is collected by the shipowner, the insurance substitutes the vessel and the shipowner becomes liable to the extent of the insurance collected (Urrutia & Co. vs. Baco River Plantation Co., 26 Phil. 362), and if the vessel was not insured, then the freights earned shall answer for the civil liability of the shipowner (Guan vs. Compania Maritima, 38 O.G. 2536). Q. A. The defense is tenable. Assuming that the shipowner is liable for a breach of contract of carriage, the exclusively “real and hypothecary nature” of maritime law operates to limit such liability to the value of the vessel, or to the insurance thereon. The liability of the shipowner or ship agent for injury to or death of passengers arising from the negligence of the captain in cases of collisions or shipwrecks, is merely co-existent with his interest in the vessel such that a total loss thereof results in its extinction (Yangco vs. Laserna, 40 O.G. 4296; Asked, 1991 Bar Exams.). Q. A. When the value of the vessel and her appurtenances should not be sufficient to cover all the liabilities, the indemnity due by reason of the death or injury of persons shall have preference (Art. 838, Code of Commerce). Q. A. If the collision should take place between Philippine vessels in foreign waters, or if having taken place in the open seas, and the vessels should make a foreign port the Filipino consul in said port shall hold a summary investigation of the accident, forwarding the proceedings to the Secretary of the Department of Foreign Affairs for continuation and conclusion (Art. 839, Code of Commerce). Section IV Shipwrecks Q. A. Shipwreck is the demolition or shattering of a vessel, caused by her driving ashore or on rocks and shoals in the midseas, or by the violence of winds and waves in tempest (Black’s Law Dictionary, citing 2 Am. Ins., p. 734). Q. A. The damage and deteriorations suffered by a vessel and her cargo by reason of shipwreck or stranding shall be individually for the account of the owners, the part which may be saved belonging to them in the same proportion (Art. 840, Code of Commerce). Q. A. If the wreck or stranding should be caused by the malice, negligence, or lack of skill of the captain, or because the vessel put to sea was insufficiently repaired and equipped, the ship agent or the shippers may demand indemnity of the captain for the damage caused to the vessel or to the cargo by the accident, in accordance with the provisions contained in Articles 610, 612, 614, and 621 (Art. 841, Code of Commerce). The general rule is that the damage due to shipwreck or stranding shall be borne by the respective owners (Art. 840, Code of Commerce), except in case of malice, negligence or lack of skill of the captain or because the vessel put to sea was insufficiently repaired and equipped, in which case the captain shall be liable for the damage caused to the vessel or the cargo (Art. 841, Code of Commerce). Q. A. The goods saved from the wreck shall be especially bound for the payment of the expenses of the respective salvage, and the amount thereof must be paid by the owners of the former before they are delivered to them, and with preference over any other obligation if the goods should be sold (Art. 842, Code of Commerce). Q. A. If several vessels sail under convoy, and any of them should be wrecked, the cargo saved shall be distributed among the rest in proportion to the amount which each one is able to take. If any captain should refuse, without sufficient cause, to receive what may correspond to him, the captain of the wrecked vessel shall enter a protest against him, before two sea officials, of the losses and damages resulting therefrom ratifying the protest within twenty-four hours after arrival at the first port, and including it in the proceedings he must institute in accordance with the provisions contained in Article 612. If it is not possible to transfer to the other vessels the entire cargo of the vessel wrecked, the goods of the highest value and the smallest volume shall be saved first, the designation thereof to be made by the captain with the concurrence of the officers of his vessel (Art. 843, Code of Commerce). Q. A. A captain who may have taken on board the goods saved from the wreck shall continue his course to the port of destination, and on arrival shall deposit the same, with judicial intervention, at the disposal of their legitimate owners. In case he changes his course, if he can unload them at the port to which they were consigned, the captain may make said port if the shippers or supercargoes present and the officers and passengers of the vessel consent thereto; but he may not do so, even with the said consent, in time of war or when the port is difficult and dangerous to make. The owners of the cargo shall defray all the expenses of this arrival as well as the payment of the freight which, after taking into consideration the circumstances of the case, may be filed by agreement or by a judicial decision (Art. 844, Code of Commerce). Q. A. If on the vessel there should be no person interested in the cargo who can pay the expenses and freight corresponding to the salvage, the competent judge or court may order the sale of the part necessary to cover the same. This shall also be done when its preservation is dangerous, or when in a period of one year it should not have been possible to ascertain who are its legitimate owners. In both cases, the proceedings shall be with the publicity and formalities prescribed in Article 579, and the net proceeds of the sale shall be safely deposited, in the discretion of the judge or court, so that they may be delivered to the legitimate owners thereof (Art. 845, Code of Commerce). Title V PROVISIONS COMMON TO ALL KINDS OF AVERAGES Q. A. Those interested in the proof and liquidation of averages may mutually agree and bind themselves at any time with regard to the liability, liquidation and payment thereof. In the absence of agreements, the following rules shall be observed: 1. The proof of the average shall take place in the port where the repairs are made, should any be necessary, or in the port of unloading. 2. The liquidation shall be made in the port of unloading, if it is a port in the Philippines. 3. If the average occurred outside of the jurisdictional waters of the Philippines, or the cargo has been sold in a foreign port by reason of an arrival under stress, the liquidation shall be made in the port of arrival. 4. If the average has occurred near the port of destination, so that said port can be made, the proceedings mentioned in Rules 1 and 2 shall be held there (Art. 846, Code of Commerce). Q. A. In the case where the liquidation of the averages is made privately by virtue of agreement, as well as when a judicial authority intervenes at the request of any of the parties interested who do not agree thereto, all of them shall be cited and heard, should they not have renounced this right. Should they not be present or should they have no legal representative, the liquidation shall be made by the consul in a foreign port, and where there is none, by the competent judge or court, according to the laws of the country and for the account of the proper party. When the representative is a person well-known in the place where the liquidation is made, his intervention shall be admitted and shall produce legal effects, even though he be authorized only by a letter of the ship agent, the shipper, or the insurer (Art. 847, Code of Commerce). Q. A. Claims for averages shall not be admitted if they do not exceed 5 per cent of the interest which the claimant may have in the vessel or in the cargo if it be gross average, and 1 per cent of the goods damaged if particular average, deducting in both cases the expenses of appraisal, unless there is an agreement to the contrary (Art. 848, Code of Commerce). Q. A. The damages, averages, loans on bottomry and respondentia and their premiums, and any other losses, shall not earn interest by reason of delay until after the lapse of the period of three days, to be counted from the day on which the liquidation may have been concluded and communicated to the persons interested in the vessel, in the cargo, or in both at the same time (Art. 849, Code of Commerce). Q. A. If by reason of one or more accidents of the sea, particular and gross average of the vessel, of the cargo, or of both, should take place on the same voyage, the expenses and damages corresponding to each average shall be determined separately in the port where the repairs are made, or where the goods are discharged, sold, or utilized. For this purpose the captains shall be obliged to demand of the expert appraisers and of the contractors making the repairs, as well as of those appraising and taking part in the unloading, repairs, sale, or utilization of the goods, that in their appraisements or estimates and accounts they set down separately and accurately the expenses and damages pertaining to each average, and in those of each average those corresponding to the vessels and to the cargo, also stating separately whether or not there are damages proceeding from inherent defect of the thing and not from accident of the sea; and in case there should be expenses common to the different averages and to the vessel and her cargo, the amount corresponding to each must be estimated and stated distinctly (Art. 850, Code of Commerce).