Negligence in performance of obligations, A1173 Civil Code

1. Concept

Article 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. x x x
If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. (1104a) (CIVIL CODE, Paragraph 2)

Negligence – “consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place.” (CIVIL CODE, Article 1173)

Negligence is the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. (Abrogar v. Cosmos Bottling Company and Intergames, Inc., G.R. No. 164749, March 15, 2017, Per Bersamin, J.)

Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do. (Philippine Bank of Commerce v. CA, G.R. No. 97626, March 14, 1997, Per Hermosisima, Jr., J.)

2. Test

The test to determine whether negligence attended the performance of an obligation is: did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. (Crisostomo v. CA [2003], supra.)

The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. (Philippine Bank of Commerce v. CA [1997], supra.)

3. Negligence per se

a. Violation of a statutory duty

[V]iolation of a statutory duty is negligence per se. In F.F. Cruz and Co., Inc. v. Court of Appeals,  we held the owner of a furniture shop liable for the destruction of the plaintiff’s house in a fire which started in his establishment in view of his failure to comply with an ordinance which required the construction of a firewall. In Teague v. Fernandez, we stated that where the very injury which was intended to be prevented by the ordinance has happened, non-compliance with the ordinance was not only an act of negligence, but also the proximate cause of the death. (Cipriano v. CA, G.R. No. 107968, October 30, 1996, Per Mendoza, J.)

Mindanao Terminal and Brokerage Service, Inc. v. Phoenix Assurance Company of New York / McGee & Co., Inc., G.R. No. 162467, May 8, 2009, Per Tinga, J.:

• Mindanao Terminal, a stevedoring company which was charged with the loading and stowing the cargoes of Del Monte Produce aboard M/V Mistrau, had acted merely as a labor provider in the case at bar. There is no specific provision of law that imposes a higher degree of diligence than ordinary diligence for a stevedoring company or one who is charged only with the loading and stowing of cargoes. It was neither alleged nor proven by Phoenix and McGee that Mindanao Terminal was bound by contractual stipulation to observe a higher degree of diligence than that required of a good father of a family. We therefore conclude that following Article 1173, Mindanao Terminal was required to observe ordinary diligence only in loading and stowing the cargoes of Del Monte Produce aboard M/V Mistrau.

Arrastre, a Spanish word which refers to hauling of cargo, comprehends the handling of cargo on the wharf or between the establishment of the consignee or shipper and the ship’s tackle. The responsibility of the arrastre operator lasts until the delivery of the cargo to the consignee. The service is usually performed by longshoremen. On the other hand, stevedoring refers to the handling of the cargo in the holds of the vessel or between the ship’s tackle and the holds of the vessel. The responsibility of the stevedore ends upon the loading and stowing of the cargo in the vessel.

• It is not disputed that Mindanao Terminal was performing purely stevedoring function while the private respondent in the Summa case was performing arrastre function. In the present case, Mindanao Terminal, as a stevedore, was only charged with the loading and stowing of the cargoes from the pier to the ship’s cargo hold; it was never the custodian of the shipment of Del Monte Produce. A stevedore is not a common carrier for it does not transport goods or passengers; it is not akin to a warehouseman for it does not store goods for profit. The loading and stowing of cargoes would not have a far reaching public ramification as that of a common carrier and a warehouseman; the public is adequately protected by our laws on contract and on quasi-delict. The public policy considerations in legally imposing upon a common carrier or a warehouseman a higher degree of diligence is not present in a stevedoring outfit which mainly provides labor in loading and stowing of cargoes for its clients.

• In the third issue, Phoenix and McGee failed to prove by preponderance of evidence that Mindanao Terminal had acted negligently. Where the evidence on an issue of fact is in equipoise or there is any doubt on which side the evidence preponderates the party having the burden of proof fails upon that issue. That is to say, if the evidence touching a disputed fact is equally balanced, or if it does not produce a just, rational belief of its existence, or if it leaves the mind in a state of perplexity, the party holding the affirmative as to such fact must fail.

•  The only participation of Mindanao Terminal was to load the cargoes on board M/V Mistrau. It was not disputed by Phoenix and McGee that the materials, such as ropes, pallets, and cardboards, used in lashing and rigging the cargoes were all provided by M/V Mistrau and these materials meets industry standard.

• It was further established that Mindanao Terminal loaded and stowed the cargoes of Del Monte Produce aboard the M/V Mistrau in accordance with the stowage plan, a guide for the area assignments of the goods in the vessel’s hold, prepared by Del Monte Produce and the officers of M/V Mistrau. The loading and stowing was done under the direction and supervision of the ship officers. The vessel’s officer would order the closing of the hatches only if the loading was done correctly after a final inspection.32 The said ship officers would not have accepted the cargoes on board the vessel if they were not properly arranged and tightly secured to withstand the voyage in open seas. They would order the stevedore to rectify any error in its loading and stowing. A foreman’s report, as proof of work done on board the vessel, was prepared by the checkers of Mindanao Terminal and concurred in by the Chief Officer of M/V Mistrau after they were satisfied that the cargoes were properly loaded.

• Phoenix and McGee relied heavily on the deposition of Byeong Yong Ahn34 and on the survey report of the damage to the cargoes. Byeong, whose testimony was refreshed by the survey report, found that the cause of the damage was improper stowage due to the manner the cargoes were arranged such that there were no spaces between cartons, the use of cardboards as support system, and the use of small rope to tie the cartons together but not by the negligent conduct of Mindanao Terminal in loading and stowing the cargoes. As admitted by Phoenix and McGee in their Comment38 before us, the latter is merely a stevedoring company which was tasked by Del Monte to load and stow the shipments of fresh banana and pineapple of Del Monte Produce aboard the M/V Mistrau. How and where it should load and stow a shipment in a vessel is wholly dependent on the shipper and the officers of the vessel. In other words, the work of the stevedore was under the supervision of the shipper and officers of the vessel. Even the materials used for stowage, such as ropes, pallets, and cardboards, are provided for by the vessel. Even the survey report found that it was because of the boisterous stormy weather due to the typhoon Seth, as encountered by M/V Mistrau during its voyage, which caused the shipments in the cargo hold to collapse, shift and bruise in extensive extent.

• As it is clear that Mindanao Terminal had duly exercised the required degree of diligence in loading and stowing the cargoes, which is the ordinary diligence of a good father of a family, the grant of the petition is in order.

3. Bad faith

Article 1173. x x x When negligence shows bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply. (1104a) (CIVIL CODE)
Article 1171. Responsibility arising from fraud is demandable in all obligations. Any waiver of an action for future fraud is void. (1102a) (CIVIL CODE)
Article 2201. x x x
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation. (1107a) (CIVIL CODE)


Chapter 2 – Nature and Effects of Obligations, Title I, Book IV, Republic Act No. 386, Civil Code

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