G.R. No.

L-42926 September 13, 1985

PEDRO VASQUEZ, SOLEDAD ORTEGA, CLETO B. BAGAIPO, AGUSTINA VIRTUDES, ROMEO

Emilio D. Castellanes for petitioners.

MELENCIO-HERRERA, J.:

This litigation involves a claim for damages for the loss at sea of petitioners' respective children after the
shipwreck of MV Pioneer Cebu due to typhoon "Klaring" in May of 1966.

The factual antecedents, as summarized by the trial Court and adopted by respondent Court, and which we find
supported by the record, read as follows:

When the inter-island vessel MV "Pioneer Cebu" left the Port of Manila in the early morning of May
15, 1966 bound for Cebu, it had on board the spouses Alfonso Vasquez and Filipinas Bagaipo and a
four-year old boy, Mario Marlon Vasquez, among her passengers. The MV "Pioneer Cebu"
encountered typhoon "Klaring" and struck a reef on the southern part of Malapascua Island, located
somewhere north of the island of Cebu and subsequently sunk. The aforementioned passengers were
unheard from since then.

Plaintiffs Pedro Vasquez and Soledad Ortega are the parents of Alfonso Vasquez; plaintiffs Cleto
Bagaipo and Agustina Virtudes are the parents of Filipinas Bagaipo; and plaintiffs Romeo Vasquez
and Maxima Cainay are the parents of the child, Mario Marlon Vasquez. They seek the recovery of
damages due to the loss of Alfonso Vasquez, Filipinas Bagaipo and Mario Marlon Vasquez during
said voyage.

At the pre-trial, the defendant admitted its contract of carriage with Alfonso Vasquez, Filipinas
Bagaipo and Mario Marlon Vasquez, and the fact of the sinking of the MV "Pioneer Cebu". The
issues of the case were limited to the defenses alleged by the defendant that the sinking of the vessel
was caused by force majeure, and that the defendant's liability had been extinguished by the total
loss of the vessel.

The evidence on record as to the circumstances of the last voyage of the MV "Pioneer Cebu" came
mainly, if not exclusively, from the defendant. The MV "Pioneer Cebu" was owned and operated by
the defendant and used in the transportation of goods and passengers in the inter-island shipping.
Scheduled to leave the Port of Manila at 9:00 p.m. on May 14, 1966, it actually left port at 5:00 a.m.
the following day, May 15, 1966. It had a passenger capacity of three hundred twenty-two (322)
including the crew. It undertook the said voyage on a special permit issued by the Collector of
Customs inasmuch as, upon inspection, it was found to be without an emergency electrical power
system. The special permit authorized the vessel to carry only two hundred sixty (260) passengers
due to the said deficiency and for lack of safety devices for 322 passengers (Exh. 2). A headcount
was made of the passengers on board, resulting on the tallying of 168 adults and 20 minors, although
the passengers manifest only listed 106 passengers. It has been admitted, however, that the
headcount is not reliable inasmuch as it was only done by one man on board the vessel.

When the vessel left Manila, its officers were already aware of the typhoon Klaring building up
somewhere in Mindanao. There being no typhoon signals on the route from Manila to Cebu, and the
vessel having been cleared by the Customs authorities, the MV "Pioneer Cebu" left on its voyage to
Cebu despite the typhoon. When it reached Romblon Island, it was decided not to seek shelter
thereat, inasmuch as the weather condition was still good. After passing Romblon and while near
Jintotolo island, the barometer still indicated the existence of good weather condition continued until
the vessel approached Tanguingui island. Upon passing the latter island, however, the weather
suddenly changed and heavy rains felt Fearing that due to zero visibility, the vessel might hit
Chocolate island group, the captain ordered a reversal of the course so that the vessel could 'weather
out' the typhoon by facing the winds and the waves in the open. Unfortunately, at about noontime on
May 16, 1966, the vessel struck a reef near Malapascua island, sustained leaks and eventually sunk,
bringing with her Captain Floro Yap who was in command of the vessel.
Due to the loss of their children, petitioners sued for damages before the Court of First Instance of Manila (Civil
Case No. 67139). Respondent defended on the plea of force majeure, and the extinction of its liability by the
actual total loss of the vessel.

After proper proceedings, the trial Court awarded damages, thus:

WHEREFORE, judgment is hereby rendered ordering the defendant to pay:

(a) Plaintiffs Pedro Vasquez and Soledad Ortega the sums of P15,000.00 for the loss of earning
capacity of the deceased Alfonso Vasquez, P2,100.00 for support, and P10,000.00 for moral
damages;

(b) Plaintiffs Cleto B. Bagaipo and Agustina Virtudes the sum of P17,000.00 for loss of earning
capacity of deceased Filipinas Bagaipo, and P10,000.00 for moral damages; and

(c) Plaintiffs Romeo Vasquez and Maximina Cainay the sum of P10,000.00 by way of moral
damages by reason of the death of Mario Marlon Vasquez.

On appeal, respondent Court reversed the aforementioned judgment and absolved private respondent from any
and all liability.

Hence, this Petition for Review on Certiorari, the basic issue being the liability for damages of private
respondent for the presumptive death of petitioners' children.

The trial Court found the defense of caso fortuito untenable due to various decisive factors, thus:

... It is an admitted fact that even before the vessel left on its last voyage, its officers and crew were
already aware of the typhoon brewing somewhere in the same general direction to which the vessel
was going. The crew of the vessel took a calculated risk when it proceeded despite the typhoon
advisory. This is quite evident from the fact that the officers of the vessel had to conduct conferences
amongst themselves to decide whether or not to proceed. The crew assumed a greater risk when,
instead of seeking shelter in Romblon and other islands the vessel passed en route, they decided to
take a change on the expected continuation of the good weather the vessel was encountering, and the
possibility that the typhoon would veer to some other directions. The eagerness of the crew of the
vessel to proceed on its voyage and to arrive at its destination is readily understandable. It is
undeniably lamentable, however, that they did so at the risk of the lives of the passengers on board.

Contrariwise, respondent Appellate Court believed that the calamity was caused solely and proximately by
fortuitous event which not even extraordinary diligence of the highest degree could have guarded against; and
that there was no negligence on the part of the common carrier in the discharge of its duties.

Upon the evidence and the applicable law, we sustain the trial Court. "To constitute a caso fortuito that would
exempt a person from responsibility, it is necessary that (1) the event must be independent of the human will;
(2) the occurrence must render it impossible for the debtor to fulfill the obligation in a normal manner; and that
(3) the obligor must be free of participation in, or aggravation of, the injury to the creditor."   In the language of
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the law, the event must have been impossible to foresee, or if it could be foreseen, must have been impossible to
avoid.   There must be an entire exclusion of human agency from the cause of injury or loss. 
2 3

Turning to this case, before they sailed from the port of Manila, the officers and crew were aware of typhoon
"Klaring" that was reported building up at 260 kms. east of Surigao. In fact, they had lashed all the cargo in the
hold before sailing in anticipation of strong winds and rough waters.  They proceeded on their way, as did other
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vessels that day. Upon reaching Romblon, they received the weather report that the typhoon was 154 kms. east
southeast of Tacloban and was moving west northwest.  Since they were still not within the radius of the
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typhoon and the weather was clear, they deliberated and decided to proceed with the course. At Jintotolo Island,
the typhoon was already reported to be reaching the mainland of Samar.   They still decided to proceed noting
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that the weather was still "good" although, according to the Chief Forecaster of the Weather Bureau, they were
already within the typhoon zone.   At Tanguingui Island, about 2:00 A.M. of May 16, 1966, the typhoon was in
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an area quite close to Catbalogan, placing Tanguingui also within the typhoon zone. Despite knowledge of that
fact, they again decided to proceed relying on the forecast that the typhoon would weaken upon crossing the
mainland of Samar.   After about half an hour of navigation towards Chocolate Island, there was a sudden fall of
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the barometer accompanied by heavy downpour, big waves, and zero visibility. The Captain of the vessel
decided to reverse course and face the waves in the open sea but because the visibility did not improve they
were in total darkness and, as a consequence, the vessel ran aground a reef and sank on May 16, 1966 around
12:45 P.M. near Malapascua Island somewhere north of the island of Cebu.
Under the circumstances, while, indeed, the typhoon was an inevitable occurrence, yet, having been kept posted
on the course of the typhoon by weather bulletins at intervals of six hours, the captain and crew were well aware
of the risk they were taking as they hopped from island to island from Romblon up to Tanguingui. They held
frequent conferences, and oblivious of the utmost diligence required of very cautious persons,   they decided to
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take a calculated risk. In so doing, they failed to observe that extraordinary diligence required of them explicitly
by law for the safety of the passengers transported by them with due regard for an circumstances   and 10

unnecessarily exposed the vessel and passengers to the tragic mishap. They failed to overcome that presumption
of fault or negligence that arises in cases of death or injuries to passengers. 
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While the Board of Marine Inquiry, which investigated the disaster, exonerated the captain from any
negligence, it was because it had considered the question of negligence as "moot and academic," the captain
having "lived up to the true tradition of the profession." While we are bound by the Board's factual findings, we
disagree with its conclusion since it obviously had not taken into account the legal responsibility of a common
carrier towards the safety of the passengers involved.

With respect to private respondent's submission that the total loss of the vessel extinguished its liability pursuant
to Article 587 of the Code of Commerce  as construed in Yangco vs. Laserna, 73 Phil. 330 [1941], suffice it to
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state that even in the cited case, it was held that the liability of a shipowner is limited to the value of the vessel
or to the insurance thereon. Despite the total loss of the vessel therefore, its insurance answers for the damages
that a shipowner or agent may be held liable for by reason of the death of its passengers.

WHEREFORE, the appealed judgment is hereby REVERSED and the judgment of the then Court of First
Instance of Manila, Branch V, in Civil Case No. 67139, is hereby reinstated. No costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.