DISCLAIMER : This entry is just my personal opinion and I do not represent or espouse the position of any party involved in the matter discussed. It is just my take on the issue based on my knowledge of the law as it relates to the situation under consideration. My statements should not be taken as legal advice by any of the parties involved.
I spoke too soon when I said in another post that it was a lucky break for the MV Princess of the Stars to have sunk where it did, just a kilometer or two from Sibuyan Island in Romblon, where survivors could swim or drift to safety. If the weather improved, that is. But it was of course stormy, and bodies of drowned ferry passengers were found as far away as Camarines Norte, hundreds of kilometers to the north. Today’s headline in the Philippine Star says it all, “Everywhere, bodies”.
That Sulpicio Lines, as a common carrier, may be held civilly liable for the deaths of the ill-starred passengers is a settled issue. The pertinent provisions of the Philippine Civil Code provides:
ART. 1755. A common carrier is bound to carry the passengers to safety as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755. (Emphasis supplied)
Under these provisions of law, there need not be an express finding of fault or negligence on the part of the common carrier in order to hold it responsible for damages, because the cause of action is based on the contract of carriage between the carrier and its riders. When the ferry passengers boarded Sulpicio Lines’ ship, the latter assumed the express obligation to transport them to their destination safely, and to observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by the passengers is right away attributable to the fault or negligence of the carrier . This is an exception to the general rule that negligence must be proved. The only defense available to the carrier is to prove that it has exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the Civil Code.
In a decided case, Sulpicio Lines vs. Court of Appeals (G.R. No. 113578) promulgated on July 14, 1995, resolving the civil liability of the shipping firm for a death resulting from the earlier sinking of another of its ships, the M/V Dona Marilyn, the Supreme Court declared:
The trial court correctly concluded that the sinking of M/V Dona Marilyn was due to gross negligence, thus:
. . . [i]t is undisputed that Typhoon Unsang entered the Philippine Area of Responsibility on October 21, 1988. The rain in Metro Manila started after lunch of October 23, 1988, and at about 5:00 p.m. Public Storm Signal No. 1 was hoisted over Metro Manila, Signal No. 2 in Leyte and Signal No. 3 in Samar. But at 10:00 o’clock (sic) in the morning of October 23, 1988, Public Storm Signal No. 1 was already hoisted over the province of Leyte, which is the destination of M/V Dona Marilyn. This was raised to Signal No. 2 at 4:00 p.m. and Signal No. 3 at 10:00 p.m. on the same date. The following day, October 24, 1988, at 4:00 a.m. and 10:00 a.m., Storm Signal No. 3 remained hoisted in Leyte. At 4 p.m. on October 24, 1988, Storm Signal No. 3 remained hoisted in Leyte but was reduced to Storm Signal No. 2 (Exh. G). Signal No. 1 has maximum winds at 60 kph within 36 hours; Signal No. 2 has maximum winds of from 60 kph to 100 kph within a period of 24 hours; and Signal No. 3 has maximum winds of 100 kph and above within a period of 12 hours.
Warnings of the storm signal are issued by PAG-ASA thru DZZA, Office of Civil Defense, Philippine Navy, Coast Guard, Radio Stations, and other offices, every six (6) hours as soon as a cyclone enters the Philippine Area of Responsibility.
At 10:30 a.m. on October 24, 1988, the vessel was estimated to be between Mindoro and Masbate, and the center of the typhoon then was around 130 degrees longitude with maximum winds of 65 kph (Exh. G-3), with a “radius of rough to phenomenal sea at that time of 450 kms. North and 350 kms. elsewhere; 350 kms. North center and all throughout the rest” (p. 12, TSN, Lumalda, Feb. 19, 1990).
xxx xxx xxx
In the same manner, (referring to the negligence of the crew of the ship that sank in Vasquez v. Court of Appeals, 138 SCRA 553 ) the crew of the vessel M/V Dona Marilyn took a calculated risk when it proceeded despite the typhoon brewing somewhere in the general direction to which the vessel was going. The crew assumed a greater risk when, instead of dropping anchor in or at the periphery of the Port of Calapan, or returning to the port of Manila which is nearer, proceeded on its voyage on the assumption that it will be able to beat and race with the typhoon and reach its destination before it (Unsang) passes ( Rollo, pp. 45-47). (Emphasis supplied)
Hence, Sulpicio Lines was held liable for damages for the death of its passenger, a daughter of plaintiffs in the case, having been found guilty of gross negligence. It seems the company is no stranger to its vessels sinking due to ignored storm warnings. And as the Court noted in the Sulpicio Lines decision:
The Court will take judicial notice of the dreadful regularity with which grievous maritime disasters occur in our waters with massive loss of life. The bulk of our population is too poor to afford domestic air transportation. So it is that notwithstanding the frequent sinking of passenger in our waters, crowds of people continue to travel by sea. This Court is prepared to use the instruments given to it by the law for securing the ends of law and public policy. One of those instruments is the institution of exemplary damages; one of those ends, of special importance in an archipelagic state like the Philippines, is the safe and reliable carriage of people and goods by sea.
But as to whether the owners and responsible officers of the company can be held criminally liable is a bit more tricky. Theoretically, a criminal complaint for reckless imprudence resulting in homicide may be brought against the officers of the corporation. The general rule has been explained by the Supreme Court thus:
If the crime is committed by a corporation or other juridical entity, the directors, officers, employees or other officers thereof responsible for the offense shall be charged and penalized for the crime, precisely because of the nature of the crime and the penalty therefor. A corporation cannot be arrested and imprisoned; hence, cannot be penalized for a crime punishable by imprisonment.
Xxx Corporate officers or employees, through whose act, default or omission the corporation commits a crime, are themselves individually guilty of the crime. (Sy v. MalateTaxi Cab, G.R. No. L-8937, November 29, 1957)
However, it’s difficult to prove criminal negligence on the part of the officials of a large enterprise like Sulpicio Lines. It can claim to have exerted extraordinary diligence in running its business. It can hire the best lawyers and fight it out in the courts, even if it takes decades, as it did in the litigation arising from the Dona Paz disaster.
Already the company seems to be shifting the blame to the ship captain, who is still missing, when it said that it was his call whether to push through with the ill-fated voyage or cancel the trip.
Furthermore, the undeniable fact is the company has deeper pockets than any of its passengers. As noted by the Supreme Court, the bulk of its passengers are poor. The latest victims of this outrage will face an uphill battle in their quest for justice.
Update: Vice-president Noli De Castro revealed in a radio interview over DZRH that the stricken ship was laden with toxic and dangerous cargo, said to be “fertilizer”. This will be the subject of a closed-door meeting of the National Disaster Coordinating Council this morning. I suspect it could be ammonium nitrate, primarily used for explosives and fertilizer, the runoff of which is a leading source of environmental waste. The storage and transport of such chemicals are subject to stringent regulations and licensing and permit procedures. Were these followed ? I’ll give you one guess.
Per the Inquirer, it was pesticide. Ten metric tons of pesticide were found inside the capsized M/V Princess of the Stars, prompting authorities to halt rescue and retrieval operations. According to Dr. Lyn Panganiban of the University of the Philippines Toxicology Department, when asked what could happen if all of the 10 metric tons of pesticide would spill into the sea, said, “It can be a catastrophe. It is a highly hazardous and toxic chemical.”
Former DOTC undersecretary and Businessworld columnist Sonny Coloma argues for the filing of charges of “multiple homicide due to reckless imprudence” against the corporate officers of Sulpicio Lines and the permanent revocation by the Maritime Industry Authority (MARINA) of the certificate of public convenience and necessity issued to the company.
We cannot – and must not – accept the jaded tale that such disasters are “acts of God.” President Arroyo seems to be misguided when she vented her ire on the Coast Guard for allowing the Princess of the Stars to set sail despite the ominous storm. Note that the vessel was sailing for 12 hours without incident – and there were other vessels voyaging toward the Visayas that were able to reach their destinations safely. What Sulpicio Lines must explain is what did their crew do when the ship captain gave the order to “abandon ship”? Did they execute an orderly evacuation?
When a luxury cruise liner caught fire off the Malaysian coast a few years ago, all passengers were evacuated safely by an all-Filipino crew that was apparently well-trained and ably prepared to deal with extreme emergency situations.
Thus far, only a few able-bodied men and a handful of women (less than 40 out of more than 800 passengers) have been rescued from the capsized Princess of the Stars. Most if not all of the more than 80 children and an undetermined number of other male and female passengers remain unaccounted for, five days after the disaster.
When will this cycle of sea disasters end? Who will protect the public from anemic regulation and an unresponsive justice system that repeatedly fails to make erring companies and individuals pay for their gross misdeeds?
As Rafael Alunan states pointedly:
Negligence is not an act of God; it is man-made. It infuriates when scoundrels hide behind God’s mantle to evade liability and escape punishment. Sulpicio Lines is a case in point.
Honesto General outlines Sulpicio’s insurance woes. It turns out the company had no Protection and Indemnity (P & I) coverage, comprehensive insurance which is a basic requirement for most shipping fleets, domestic or international. P & I was denied Sulpicio because of its run-down ships and dismal safety record. PI talaga!
Manolo Quezon explains how the administration is using the Sulpicio tragedy as a political decoy to deflect attention from its many sins.
Ma. Ceres P. Doyo points out the conspicuous absence of the institutional Catholic Church in in the wake of the sinking of Princess of the Stars. As an institution and as represented by its consecrated members (the clergy, the religious priests, nuns and brothers), it has been generally lukewarm to the victims and the bereaved of the disaster.