Facts: Wheat in bulk, was shipped by Marubeni American
Corporation of Portland, Oregon on board the vessel M/V NEO for delivery to the
consignee, General Milling Corporation in Manila. The shipment was insured by
the private respondent Prudential Guarantee and Assurance, Inc. against loss or
damage. The carrying vessel arrived in Manila and the cargo was transferred to
the custody of the petitioner Asia Lighterage and Shipping, Inc. The petitioner
was contracted by the consignee as carrier to deliver the cargo to consignee's
warehouse. On, 900 metric tons of the shipment was loaded on barge PSTSI III for
delivery to consignee. The cargo did not reach its destination.
It appears that the transport of said cargo was suspended
due to a warning of an incoming typhoon. The petitioner proceeded to pull the
barge to Engineering Island off Baseco to seek shelter from the approaching
typhoon. A few days after, the barge developed a list because of a hole it
sustained after hitting an unseen protuberance underneath the water. The barge
was then towed to ISLOFF terminal before it finally headed towards the
consignee's wharf. Upon reaching the Sta. Mesa spillways, the barge again ran
aground due to strong current. To avoid the complete sinking of the barge, a
portion of the goods was transferred to three other barges.
The next day,
the towing bits of the barge broke. It sank completely, resulting in the total
loss of the remaining cargo. Private respondent indemnified the consignee.15Thereafter,
as subrogee, it sought recovery of said amount from the petitioner, but to no
avail.
The private respondent filed a complaint against the
petitioner for recovery of the amount of indemnity, attorney's fees and cost of
suit.
The Regional
Trial Court ruled in favor of the private respondent.
Petitioner appealed to the Court of Appeals insisting
that it is not a common carrier.
Issue: Whether the petitioner is a common carrier
Held: Common Carrier. Petitioner is a common carrier whether its
carrying of goods is done on an irregular rather than scheduled manner, and
with an only limited clientele. A common carrier need not have fixed and
publicly known routes. Neither does it have to maintain terminals or issue
tickets. To be sure, petitioner fits the test of a common carrier as laid down
in Bascos vs. Court of Appeals. The test to determine a common carrier is
"whether the given undertaking is a part of the business engaged in by the
carrier which he has held out to the general public as his occupation rather
than the quantity or extent of the business transacted." In the case at
bar, the petitioner admitted that it is engaged in the business of shipping and
lighterage, offering its barges to the public, despite its limited clientele
for carrying or transporting goods by water for compensation.
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