A. MAGSAYSAY INC. vs. ANASTACIO AGAN

G.R. No. L-6393             January 31, 1955

FACTS:

S S "San Antonio", vessel owned and operated by plaintiff ran aground at the mouth of the Cagayan river, and, attempts to refloat it under its own power having failed, plaintiff have it refloated by the Luzon Stevedoring Co. at an agreed compensation. Once the vessel reached Basco, it’s destination, the cargoes were delivered to their respective owners or consignees, who, with the exception of defendant, made a deposit or signed a bond to answer for their contribution to the average.

The plaintiff brought the present action in the Court of First Instance of Manila to make defendant pay his contribution

Defendant refuses to pay the same amount and alleges that the stranding of the vessel was due to the fault, negligence and lack of skill of its master, that the expenses incurred in putting it afloat did not constitute general average, and that the liquidation of the average was not made in accordance with law.

Lower court sided with the herein petitioner, rendering judgment against Agan.

It was in the findings of the court that the stranding of plaintiff's vessel was due to the sudden shifting of the sandbars at the mouth of the river which the port pilot did not anticipate.

ISSUE:

Whether or not the expenses incurred in floating a vessel so stranded should be considered general average and shared by the cargo owners.

HELD:

No.

Let us now see whether the expenses here in question could come within the legal concept of the general average. Tolentino, in his commentaries on the Code of Commerce, gives the following requisites for general average:

First, there must be a common danger. This means, that both the ship and the cargo, after has been loaded, are subject to the same danger, whether during the voyage, or in the port of loading or unloading; that the danger arises from the accidents of the sea, dispositions of the authority, or faults of men, provided that the circumstances producing the peril should be ascertained and imminent or may rationally be said to be certain and imminent. This last requirement exclude measures undertaken against a distant peril.

Second, that for the common safety part of the vessel or of the cargo or both is sacrificed deliberately.

Third, that from the expenses or damages caused follows the successful saving of the vessel and cargo.

Fourth, that the expenses or damages should have been incurred or inflicted after taking proper legal steps and authority. (Vol. 1, 7th ed., p. 155.)

With respect to the first requisite, the evidence does not disclose that the expenses sought to be recovered from defendant were incurred to save vessel and cargo from a common danger. The vessel ran aground in fine weather inside the port at the mouth of a river, a place described as "very shallow". It would thus appear that vessel and cargo were at the time in no imminent danger or a danger which might "rationally be sought to be certain and imminent." It is, of course, conceivable that, if left indefinitely at the mercy of the elements, they would run the risk of being destroyed. But as stated at the above quotation, "this last requirement excludes measures undertaken against a distant peril." It is the deliverance from an immediate, impending peril, by a common sacrifice, that constitutes the essence of general average. (The Columbian Insurance Company of Alexandria vs. Ashby & Stribling et al., 13 Peters 331; 10 L. Ed., 186). In the present case there is no proof that the vessel had to be put afloat to save it from imminent danger. What does appear from the testimony of plaintiff's manager is that the vessel had to be salvaged in order to enable it "to proceed to its port of destination." But as was said in the case just cited it is the safety of the property, and not of the voyage, which constitutes the true foundation of the general average.

As to the second requisite, we need only repeat that the expenses in question were not incurred for the common safety of vessel and cargo, since they, or at least the cargo, were not in imminent peril. The cargo could, without need of expensive salvage operation, have been unloaded by the owners if they had been required to do so.

With respect to the third requisite, the salvage operation, it is true, was a success. But as the sacrifice was for the benefit of the vessel — to enable it to proceed to destination — and not for the purpose of saving the cargo, the cargo owners are not in law bound to contribute to the expenses.

The final requisite has not been proved, for it does not appear that the expenses here in question were incurred after following the procedure laid down in article 813 et seq.

In conclusion we found that plaintiff not made out a case for general average, with the result that its claim for contribution against the defendant cannot be granted.