Defenses available for the common carrier in Transportation Law PDF

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CHAPTER 4 – DEFENSES OF THE COMMON CARRIERKinds of Defenses Totally bar recovery Mitigate and/or limits liability Proximate causationAbsence of causation as defense The passenger or the shipper has no burden of proving that his injury was caused by the negligent or intentional act or omission of the...

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CHAPTER 4 – DEFENSES OF THE COMMON CARRIER Kinds of Defenses 1. Totally bar recovery 2. Mitigate and/or limits liability Proximate causation Absence of causation as defense -

The passenger or the shipper has no burden of proving that his injury was caused by the negligent or intentional act or omission of the carrier or his agents The common carrier may prove by way of defense that the loss or damage cannot be traced to any act of the said carrier.  The proximate cause is not any of the act or omission of the said carrier because he exercised extraordinary diligence.

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DEFENSES IN THE CARRIAGE OF GOODS -

Articles 1734, 1742, and 1743. ARTICLE 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same is due to any of the following causes only: 1) Flood, storm, earthquake, lightning, or other natural disaster or calamity; 2) Act of the public enemy in war, whether international or civil; 3) Act or omission of the shipper or owner of the goods; 4) The character of the goods or defects in the packing or in the containers; 5) Order or act of competent public authority.

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ARTICLE 1742. Even if the loss, destruction, or deterioration of the goods should be caused by the character of the goods, or the faulty nature of the packing or of the containers, the common carrier must exercise due diligence to forestall or lessen the loss.

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ARTICLE 1743. If through the order of public authority the goods are seized or destroyed, the common carrier is not responsible, provided said public authority had power to issue the order.

NOTES: - No other defense may be raised by the common carrier in the carriage of goods. - The enumeration is exclusive or a closed list. - Carrier is liable if not one the following is present

DEFENSES IN CARRIAGE OF PASSENGERS -

Exercise of extraordinary or utmost diligence

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It is believed that defenses in Art. 1734 (except 4) may also be invoked against the passenger or his heirs provided that utmost diligence is exercised.

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DEFENSES IN THE CARRIAGE OF GOODS Fortuitous event (Art. 1734) -

Must be established to be the proximate cause of the loss Proximate and only cause It may involve events that involve human intervention.

 Requisites as a defense:

1. The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; 2. It must be impossible to foresee the event that constitutes the causo fortuito, or if it can be foresee, it must be impossible to avoid; 3. The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; 4. The obligor (debtor) must be free from any participation in or the aggravation of the injury resulting to the creditor. Carrier’s participation Carrier will be excused from liability if the natural disaster is the proximate and only cause of the loss.

GR:

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Carrier must be free from any participation in causing the damage or injury.

RATIO: When the negligence of the carrier concurs with an act of God producing a loss, the carrier is not exempted from liability. -

The act of God must be the sole cause.

Fire -

Considered as force majeure if cause by a natural calamity such as: a. Public enemy; b. Lightning; c. Earthquake; or d. Tempest

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity; a. Storm -

The presence of strong wind does not by itself justify the conclusion that there is a storm. There may be cases that strong winds may be unforeseeable.

b. Highjacking -

Common carrier is presumed to be at fault or to have acted negligently unless there is a proof of extraordinary diligence on its part of the common carrier. Grave or irresistible threat, violence or force must be present and proven to exempt from liability.

c. Mechanical defects -

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Carrier is liable to its passengers for damages caused by mechanical defects of the conveyance. Not fortuitous event because they are curable and preventable. No privity between the passenger and the manufacturer that is why the passenger cannot directly sue the manufacturer. Carrier can still claim that mechanical defects may, in proper case, be considered caso fortuito if adequate inspection is made. e. Tire blowout Same rule with mechanical defects

Other Invalid defenses 1. 2. 3. 4.

Explosion Presence of worm and rats Water damage Barratry - Act committed by the master or crew of the ship for some unlawful or fraudulent purpose.

(2) Act of the public enemy in war, whether international or civil; Public enemy Def: -

The state against which the country is at war is the country of the carrier. Available to the carrier as defense under: a. Civil Code

b. Carriage of Goods by Sea Act (COGSA)

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To be exempted: 1. Act of the public enemy must have been the proximate and only cause 2. Common carrier must exercise due diligence to prevent or minimize loss before, during and after the performance of the act of the public enemy. Act of rebels against the government is not an act of a public enemy

(3) Act or omission of the shipper or owner of the goods;

(4) The character of the goods or defects in the packing or in the containers; GR:

Carrier is not liable if the loss occurs because of the inherent nature of the shipment provided: a. Goods are received under protest; and b. Defect must be duly noted in the bill of lading.

XPN:

If the carrier accepts the goods knowing the fact of improper packing of the goods upon ordinary observation   

Also applicable to hand carried baggage. Defect – lack of something essential to completeness Inferior – poor quality, mediocre or second rate

(5) Order or act of competent public authority. GR:

Public authority who issued the order must be duly authorized to be exempted from liability.

XPN:

Liable if public authority has a. No authority to issue the subject order; or b. Exceeded his authority. DEFENSES IN THE CARRIAGE OF PASSENGERS

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Extraordinary diligence

Act of Employees Carrier is liable for the acts of its employees who may have acted:

GR:

a. Beyond the scope of their authority; or b. In violation of the orders of the common carriers.  

Passenger has no duty to inquire Thefts of employees - Captain shall be civilly liable to third persons for all the thefts committed by the crew, reserving the right of action against the guilty party.

Acts of other passengers and third persons GR: A common carrier is responsible for injuries caused by a passenger against other passengers if the common carrier’s employee failed to exercise the diligence of a good of a family to prevent or stop the act or omission.

ACTS OR NEGLIGENCE OF THE SHIPPER OR THE PASSENGER -

Common carrier is not liable provided it is the proximate and only cause.

Contributory negligence of the shipper -

Contributing as a legal cause to the harm he has suffered Mitigates liability Defense of common carrier against negligent shipper or passenger: a. Failure of the shipper to disclose the nature of the goods; b. Improper marking or direction as to destination; or c. Improper loading when he assumes such responsibility

Doctrine of Avoidable Consequences...