GENERAL CONCEPTS
A. Real and Hypothecary Nature
- limitation of liability of agents (and owners) to the actual value of the vessel and freight money - abandonment of the vessel is required EXCEPT if the vessel is totally lost
- right to retain the cargo and the embargo and detention of vessel
- the common carrier and/or ship agent (solidary) are liable to third persons EXCEPT when there is abandonment (no liability)
- co-owner also liable to third persons UNLESS he renounces, before a notary, his interest in the vessel
C. Loss of Vessel
- all rights are extinguished
- if partial loss of vessel only, captain and crew on wages have a right to salvage the ship and goods. HOWEVER, sailors on shares have a right to the cargo only EXCEPT if they worked for salvage, in which case they are entitled to compensation for their salvage service.
D. Collisions
- Liability of ship owner is limited to the value of the vessel and its appurtenances and freight.
E. Exceptions to Limited Liability Rule
- injury or death to passenger due to fault of shipowner or concurring negligence of shipowner and captain
- vessel is insured
- workmen's compensation claims
- expenses for repairs and provisioning of the ship prior to departure
VESSELS
A. Protest- a condition precedent to make owner of the vessel liable in case of collision
B. Type of Property
- Vessels are personal property but they partake of the nature of real property because of their value and importance to world commerce.
- The person registered as owner is presumed the owner of the vessel.
- The sale of vessels must be registered to the Maritime Industry Authority in order to affect third persons.
C. Manifest
- a declaration of the entire cargo
- distinguish from a bill of lading, which is only a declaration of particular cargo
D. Ship Mortgage
(1) PURPOSE: construction, acquisition, purchase of vessels, initial operatio of vessels
(2) PREFERRED MORTGAGE
Requisites:
- mortgage recorded with the Coast Guard
- affidavit of good faith
- no stipulation that the mortgagee waives preferred status of the mortgage
- not covered by preferred mortgage
- court fees and taxes
- crew's wages
- general averages
- maritime lien prior to the registration of mortgage
- salvage
- damages for tort
- preferred mortages registered prior in time
(3) JUDICIAL FORECLOSURE
- suit in rem in admiralty
- vessel is arrested (replevin to recover possession) and made a party
- applicant files a bond
- filed with the Regional Trial Court
(4) MARITIME LIEN FOR NECESSARIES
- suit in rem
- allege credit and prove it
Requisites
- for the benefit of the vessel
- necessary for the continuation of the voyage
- credit is extended to the vessel
- necessity of such extension of credit
- the extension of credit is ordered by authorized persons
- depends on the law of the country where the supplies were furnished which must be pleaded and proved
- Lauritzen-Romero-Rhobitis trilogy of cases
- place of wrongful act
- law of the flag
- allegiance or domicile of the injured person
- allegiance of the owner
- place of contract
- inaccessibility of foreign forum
- law of the forum
- factors provided in the Restatement of Conflict of Laws
- place of contracting
- place of negotiation
- place of performance
- location
- domicile or residence of parties
PERSONS WHO TAKE PART IN MARITIME COMMERCE
A. Ship Owner
- primarily liable
B. Ship Agent
- solidarily liable with ship owner
- capacity to trade
- recorded in the merchant's registry of the province
- LIMITATION ON POWERS: needs resolution of the majority of the co-owners UNLESS previously this authority is included in the certificate of appointment
- If the ship agent enters into contract of insurance without authority, he shall be held subsidiarily liable with the insurer.
- DUTY TO ACCOUNT
- REIMBURSEMENT AND LIABILITIES: accion ejectuva (expenses or profits) -- resolution of majority and signatures of persons who voted
C. Part Owners
- if more than one, presumed partners
- vote of majority; if none, the owner with the largest interest; if equal, then divided by lot
D. Sale
- by public auction UNLESS owners unanimously agree otherwise
- owner of vessel is preferred
E. Discharge of Captain and Crew
- Before Voyage: salary earned, no indemnity EXCEPT express and specific agreement
- During Voyage: salaries until return to port UNLESS cause of discharge
- Contract for Definite Period: no discharge EXCEPT subordination in serious matters, robbery, theft, habitual drunkenness, damage to ship caused by malice or manifest/proven negligence
- Captain is Owner: no discharge UNLESS return his interest
Qualifications:
- Filipinos
- legal capacity
- skill, capacity, and qualifications necessary to perform their jobs
- not disqualified
- general agent of shipowner
- commander and technical director of the vessel
- representative of the country under whose flag he navigates
- reponsible for damages/injuries due to his fault EXCEPT force majeure
- COLLISIONS: colliding vessel deemed prima facie responsible so burden of proof is on it
CHARTER PARTIES
A. Bareboat
- whole vessel is chartered but the charterer provides the crew
- becomes a private carrier
- charterer is the owner pro hac vice and therefore liable to third persons
B. Contract of Affreightment
- the vessel, together with its crew, is leased
- common carrier
- liability to third persons rests with the shipowner
Kinds:
- Time
- Voyage
- consent
- existing vessel which should be placed at the disposition of the shipper
- freight
- drawn in duplicate and signed by the parties
- charterer is responsible for sum of money in case vessel is detained in port beyond the period allowed in the contract
D. Dead Freight
- charterer failed to occupy the leased portion of the vessel
LOANS ON BOTTOMRY AND RESPONDENTIA
Distinguish from Simple Loan
- RATE OF INTEREST: Bottomry is not subject to Usury Law while Simple Loan is subject to a fixed ceiling rate in the Usury Law.
- EXISTENCE OF MARINE RISK: This is required in Bottomry but not in Simple Loan.
- REGISTRATION: Bottomry must be registered in the registry of vessels in order to affect third persons while Simple Loan needs no registration.
- REQUISITES: Bottomry is govered by the Code of Commerce while Simple Loan by obligations and contracts.
- PREFERENCE: In Bottomry, last lender is given preference while Simple Loan, the first lender.
AVERAGE
A. Simple Average
- not inured to the common benefit of all persons interested
- shipowner bears loss
B. General Average
- all damages are deliberately caused to save the vessel or the cargo
Requisites:
- common danger which must be imminent and real
- for the common safety, part of the vessel or cargo is deliberately sacrificed
- successful saving of the vessel or cargo
- taking of legal steps and authority
- owners of goods sacrificed are entitled to indemnity EXCEPT:
- goods carried on deck
- goods not recorded in the books
- fuel for the vessel if there is more than enough for the voyage
COLLISIONS
- even owner of a third vessel liable if it forced a vessel to hit another- no applicability of "last clear chance" rule: if both parties are negligent, both must answer for the damage- no applicability of "contributory negligence" rule
A. Third Person at Fault
- indemnify others
- ship captain is civilly liable to the owner
- abandonment and limited liability rules apply
B. Doctrine of Inscrutable Fault
- if cannot determine who is at fault: both vessels bear the loss
- but shipper may go after the owner and captain if both have been negligent
C. Protest
- required of the captain only, not the passenger
ARRIVAL UNDER STRESS AND SHIPWRECK
Steps:
- captain must determine if there is a well-founded fear of seizure, etc.
- assemble the officers
- summon all persons interested if present but they shall have no vote
- officers determine danger and vote on it. The captain has the deciding vote.
- enter into agreement and all protests/objections entered into logbook
