349 Phil. 925
PANGANIBAN, J.:
What is the
nature of a bill of lading? When does a
bill of lading become binding on a
consignee? Will an alleged overshipment
justify the consignee’s refusal to receive the goods described in the bill of
lading? When may interest be computed on unpaid demurrage charges?
Statement of the Case
These are the
main questions raised in this petition assailing the Decision[1] of the Court of Appeals[2] promulgated on May 20, 1994 in
C.A.-G.R. CV No. 29953 affirming in toto the decision[3] dated September 28, 1990 in Civil
Case No. 85-33269 of the Regional Trial Court of Manila, Branch 21. The dispositive portion of the said RTC
decision reads:
“WHEREFORE, the Court finds by preponderance of evidence that Plaintiff has proved its cause of action and right to relief. Accordingly, judgment is hereby rendered in favor of the Plaintiff and against Defendant, ordering the Defendant to pay plaintiff:
1. The
sum of P67,340.00 as demurrage charges, with interest at the legal rate
from the date of the extrajudicial demand until fully paid;
2. A
sum equivalent to ten (10%) percent of the total amount due as Attorney’s fees
and litigation expenses.
Send copy to respective counsel of
the parties.
SO ORDERED.”[4]
The Facts
The factual
antecedents of this case as found by the Court of Appeals are as follows:
“Plaintiff (herein private respondent), a shipping company, is a foreign corporation licensed to do business in the Philippines. On June 29, 1982, plaintiff received at its Hong Kong terminal a sealed container, Container No. SEAU 67523, containing seventy-six bales of “unsorted waste paper” for shipment to defendant (herein petitioner), Keng Hua Paper Products, Co. in Manila. A bill of lading (Exh. A) to cover the shipment was issued by the plaintiff.
On July 9, 1982, the shipment was discharged at the Manila International Container Port. Notices of arrival were transmitted to the defendant but the latter failed to discharge the shipment from the container during the “free time” period or grace period. The said shipment remained inside the plaintiff’s container from the moment the free time period expired on July 29, 1982 until the time when the shipment was unloaded from the container on November 22, 1983, or a total of four hundred eighty-one (481) days. During the 481-day period, demurrage charges accrued. Within the same period, letters demanding payment were sent by the plaintiff to the defendant who, however, refused to settle its obligation which eventually amounted to P67,340.00. Numerous demands were made on the defendant but the obligation remained unpaid. Plaintiff thereafter commenced this civil action for collection and damages.
In its answer, defendant, by way of special and affirmative defense, alleged that it purchased fifty (50) tons of waste paper from the shipper in Hong Kong, Ho Kee Waste Paper, as manifested in Letter of Credit No. 824858 (Exh. 7. p. 110. Original Record) issued by Equitable Banking Corporation, with partial shipment permitted; that under the letter of credit, the remaining balance of the shipment was only ten (10) metric tons as shown in Invoice No. H-15/82 (Exh. 8, p. 111, Original Record); that the shipment plaintiff was asking defendant to accept was twenty (20) metric tons which is ten (10) metric tons more than the remaining balance; that if defendant were to accept the shipment, it would be violating Central Bank rules and regulations and custom and tariff laws; that plaintiff had no cause of action against the defendant because the latter did not hire the former to carry the merchandise; that the cause of action should be against the shipper which contracted the plaintiff’s services and not against defendant; and that the defendant duly notified the plaintiff about the wrong shipment through a letter dated January 24, 1983 (Exh. D for plaintiff, Exh. 4 for defendant, p. 5. Folder of Exhibits).”
As previously
mentioned, the RTC found petitioner liable for demurrage, attorney’s fees and
expenses of litigation. The petitioner
appealed to the Court of Appeals, arguing that the lower court erred in (1) awarding the sum of P67,340 in
favor of the private respondent, (2)
rejecting petitioner’s contention that there was overshipment, (3) ruling that petitioner’s recourse was
against the shipper, and (4) computing legal interest from date of extrajudicial demand.[5]
Respondent Court
of Appeals denied the appeal and affirmed the lower court’s decision in toto. In a subsequent resolution,[6] it also denied the petitioner’s
motion for reconsideration.
Hence, this
petition for review.[7]
The Issues
In its
memorandum, petitioner submits the following issues:
“I. Whether or not petitioner had accepted the bill of lading;
II. Whether or not the award of the sum of P67,340.00 to private respondent was proper;
III. Whether or not petitioner was correct in not accepting the overshipment;
IV. Whether or not the award of legal interest from the date of private respondent’s extrajudicial demand was proper;”[8]
In the
main, the case revolves around the question
of whether petitioner was bound by the bill of lading. We shall, thus, discuss the above four
issues as they intertwine with this main question.
The Court’s Ruling
The petition is
partly meritorious. We affirm
petitioner’s liability for demurrage, but modify the interest rate thereon.
Main Issue: Liability Under the Bill of Lading
A bill of lading
serves two functions. First, it
is a receipt for the goods shipped. Second, it is a contract by which three parties, namely, the
shipper, the carrier, and the consignee undertake specific responsibilities and
assume stipulated obligations.[9] A “bill of lading delivered and
accepted constitutes the contract of carriage even though not signed,”[10] because the “(a)cceptance of a
paper containing the terms of a proposed contract generally constitutes an
acceptance of the contract and of all of its terms and conditions of which the
acceptor has actual or constructive notice.”[11] In a nutshell, the acceptance of a
bill of lading by the shipper and the consignee, with full knowledge of its
contents, gives rise to the presumption that the same was a perfected and
binding contract.[12]
In the case at
bar, both lower courts held that the bill of lading was a valid and perfected
contract between the shipper (Ho Kee), the consignee (Petitioner Keng Hua), and
the carrier (Private Respondent Sea-Land). Section 17 of the bill of lading provided that the shipper and the
consignee were liable for the payment of demurrage charges for the failure to
discharge the containerized shipment beyond the grace period allowed by tariff
rules. Applying said stipulation, both
lower courts found petitioner liable. The aforementioned section of the bill of lading reads:
“17. COOPERAGE FINES. The shipper and consignee shall be liable for, indemnify the carrier and ship and hold them harmless against, and the carrier shall have a lien on the goods for, all expenses and charges for mending cooperage, baling, repairing or reconditioning the goods, or the van, trailers or containers, and all expenses incurred in protecting, caring for or otherwise made for the benefit of the goods, whether the goods be damaged or not, and for any payment, expense, penalty fine, dues, duty, tax or impost, loss, damage, detention, demurrage, or liability of whatsoever nature, sustained or incurred by or levied upon the carrier or the ship in connection with the goods or by reason of the goods being or having been on board, or because of shipper’s failure to procure consular or other proper permits, certificates or any papers that may be required at any port or place or shipper’s failure to supply information or otherwise to comply with all laws, regulations and requirements of law in connection with the goods of from any other act or omission of the shipper or consignee:” (Underscoring supplied.)
Petitioner
contends, however, that it should not be bound by the bill of lading because it
never gave its consent thereto. Although petitioner admits “physical acceptance” of the bill of lading,
it argues that its subsequent actions belie the finding that it accepted the
terms and conditions printed therein.[13] Petitioner cites as support the
“Notice of Refused or On Hand Freight” it received on November 2, 1982 from
private respondent, which acknowledged that petitioner declined to accept the
shipment. Petitioner adds that it sent
a copy of the said notice to the shipper on December 29, 1982. Petitioner points to its January 24, 1983
letter to the private respondent, stressing “that its acceptance of the bill of
lading would be tantamount to an act of smuggling as the amount it had imported
(with full documentary support) was only (at that time) for 10,000 kilograms
and not for 20,313 kilograms as stated in the bill of lading” and “could lay
them vulnerable to legal sanctions for violation of customs and tariff as well
as Central Bank laws.”[14] Petitioner further argues that the
demurrage “was a consequence of the shipper’s mistake” of shipping more than
what was bought. The discrepancy in the
amount of waste paper it actually purchased, as reflected in the invoice vis-à-vis
the excess amount in the bill of lading, allegedly justifies its refusal to
accept the shipment.[15]
Petitioner Bound by the Bill of Lading
We are not
persuaded. Petitioner admits that it
“received the bill of lading immediately after the arrival of the shipment”[16] on July 8, 1982.[17] Having been afforded an opportunity
to examine the said document, petitioner did not immediately object to or
dissent from any term or stipulation therein. It was only six months later, on January 24, 1983, that petitioner sent
a letter to private respondent saying that it could not accept the
shipment. Petitioner’s inaction for
such a long period conveys the clear inference that it accepted the terms and
conditions of the bill of lading. Moreover, said letter spoke only of petitioner’s inability to use the
delivery permit, i.e. to pick up the cargo, due to the shipper’s failure
to comply with the terms and conditions of the letter of credit, for which reason the bill of lading and
other shipping documents were returned by the “banks” to the shipper.[18] The letter merely proved
petitioner’s refusal to pick up the cargo, not its rejection of the bill of
lading.
Petitioner’s
reliance on the Notice of Refused or On Hand Freight, as proof of its
nonacceptance of the bill of lading, is of no consequence. Said notice was not written by petitioner;
it was sent by private respondent to petitioner in November 1982, or four
months after petitioner received the bill of lading. If the notice has any legal significance at all, it is to highlight petitioner’s prolonged failure to object to the bill of
lading. Contrary to petitioner’s
contention, the notice and the letter
support – not belie – the findings of the two lower courts that the bill of
lading was impliedly accepted by petitioner.
As aptly stated
by Respondent Court of Appeals:
“In the instant case, (herein petitioner) cannot and did not allege non-receipt of its copy of the bill of lading from the shipper. Hence, the terms and conditions as well as the various entries contained therein were brought to its knowledge. (Herein petitioner) accepted the bill of lading without interposing any objection as to its contents. This raises the presumption that (herein petitioner) agreed to the entries and stipulations imposed therein.
Moreover, it is puzzling that (herein petitioner) allowed months to pass, six (6) months to be exact, before notifying (herein private respondent) of the ‘wrong shipment.’ It was only on January 24, 1983 that (herein petitioner) sent (herein private respondent) such a letter of notification (Exh D for plaintiff, Exh. 4 for defendant; p. 5, Folder of Exhibits). Thus, for the duration of those six months (herein private respondent never knew the reason for (herein petitioner’s) refusal to discharge the shipment.
After accepting the bill of lading, receiving notices of arrival of the shipment, failing to object thereto, (herein petitioner) cannot now deny that it is bound by the terms in the bill of lading. If it did not intend to be bound, (herein petitioner) would not have waited for six months to lapse before finally bringing the matter to (herein private respondent’s attention. The most logical reaction in such a case would be to immediately verify the matter with the other parties involved. In this case, however, (herein petitioner) unreasonably detained (herein private respondent’s) vessel to the latter’s prejudice.”[19]
Petitioner’s attempt to
evade its obligation to receive the shipment on the pretext that this may cause
it to violate customs, tariff and central bank laws must likewise fail. Mere apprehension of violating said laws,
without a clear demonstration that taking delivery of the shipment has become
legally impossible,[20] cannot defeat the petitioner’s contractual
obligation and liability under the bill of lading.
In any event,
the issue of whether petitioner accepted the bill of lading was raised for the
first time only in petitioner’s memorandum before this Court. Clearly, we cannot now entertain an issue
raised for the very first time on appeal, in deference to the well-settled
doctrine that “(a)n issue raised for the first time on appeal and not raised
timely in the proceedings in the lower court is barred by estoppel. Questions raised on appeal must be within
the issues framed by the parties and, consequently, issues not raised in the
trial court cannot be raised for the first time on appeal.”[21]
In the case at
bar, the prolonged failure of petitioner to receive and discharge the cargo
from the private respondent’s vessel constitutes a violation of the terms of
the bill of lading. It should thus be
liable for demurrage to the former.
In The
Apollon,[22] Justice Story made the following relevant comment on
the nature of demurrage:
“In truth, demurrage is merely an allowance or compensation for the delay or detention of a vessel. It is often a matter of contract, but not necessarily so. The very circumstance that in ordinary commercial voyages, a particular sum is deemed by the parties a fair compensation for delays, is the very reason why it is, and ought to be, adopted as a measure of compensation, in cases ex delicto. What fairer rule can be adopted than that which founds itself upon mercantile usage as to indemnity, and fixes a recompense upon the deliberate consideration of all the circumstances attending the usual earnings and expenditures in common voyages? It appears to us that an allowance, by way of demurrage, is the true measure of damages in all cases of mere detention, for that allowance has reference to the ship’s expenses, wear and tear, and common employment.”[23]
Amount of
Demurrage Charges
Petitioner
argues that it is not obligated to pay any demurrage charges because, prior to
the filing of the complaint, private respondent made no demand for the sum of P67,340. Moreover, private respondent’s loss and
prevention manager, Loi Gillera, demanded P50,260, but its counsel,
Sofronio Larcia, subsequently asked for a different amount of P37,800.
Petitioner’s
position is puerile. The amount of
demurrage charges in the sum of P67,340 is a factual conclusion of the
trial court that was affirmed by the Court of Appeals and, thus, binding on
this Court.[24] Besides such factual finding is
supported by the extant evidence.[25] The apparent discrepancy was a
result of the variance of the dates when the two demands were made. Necessarily, the longer the cargo remained
unclaimed, the higher the demurrage. Thus, while in his letter dated April 24, 1983,[26] private respondent’s counsel demanded
payment of only P37,800, the additional demurrage incurred by petitioner
due to its continued refusal to receive delivery of the cargo ballooned to P67,340
by November 22, 1983. The testimony of
Counsel Sofronio Larcia as regards said letter of April 24, 1983 elucidates, viz:
“Q Now, after you sent this letter, do you know what happened?
A Defendant continued to refuse to take delivery of the shipment and the shipment stayed at the port for a longer period.
Q So, what happened to the shipment?
A The shipment incurred additional demurrage charges which amounted toP67,340.00 as of November 22, 1983 or more than a year after - almost a year after the shipment arrived at the port.
Q So, what did you do?
A We requested our collection agency to pursue the collection of this amount.”[27]
Bill of Lading Separate from
Other Letter of Credit Arrangements
In a letter of
credit, there are three distinct and independent contracts: (1) the contract of sale between the buyer and the seller, (2) the contract of the buyer with the issuing bank, and (3) the letter of credit proper in which the
bank promises to pay the seller pursuant to the terms and conditions stated
therein. “Few things are more clearly
settled in law than that the three contracts which make up the letter of credit
arrangement are to be maintained in a state of perpetual separation.”[28] A transaction involving the
purchase of goods may also require, apart from a letter of credit, a contract
of transportation specially when the seller and the buyer are not in the same
locale or country, and the goods purchased have to be transported to the
latter.
Hence, the
contract of carriage, as stipulated in the bill of lading in the present case,
must be treated independently of the contract of sale between the seller and
the buyer, and the contract for the issuance of a letter of credit between the
buyer and the issuing bank. Any
discrepancy between the amount of the goods described in the commercial invoice
in the contract of sale and the amount allowed in the letter of credit will not
affect the validity and enforceability of the contract of carriage as embodied
in the bill of lading. As the bank
cannot be expected to look beyond the documents presented to it by the seller
pursuant to the letter of credit,[29] neither can the carrier be expected
to go beyond the representations of the shipper in the bill of lading and to
verify their accuracy vis-à-vis the commercial invoice and the letter of
credit. Thus, the discrepancy between
the amount of goods indicated in the invoice and the amount in the bill of lading cannot negate petitioner’s obligation to private respondent
arising from the contract of transportation. Furthermore, private respondent, as carrier, had no knowledge of the
contents of the container. The contract
of carriage was under the arrangement known as “Shipper’s Load And Count,” and the shipper was solely responsible for
the loading of the container while the carrier was oblivious to the contents of
the shipment. Petitioner’s remedy in
case of overshipment lies against the seller/shipper, not against the carrier.
Payment of
Interest
Petitioner
posits that it “first knew” of the demurrage claim of P67,340 only when
it received, by summons, private respondent’s complaint. Hence, interest may not be allowed to run
from the date of private respondent’s extrajudicial demands on March 8, 1983
for P50,260 or on April 24, 1983 for P37,800, considering that,
in both cases, “there was no demand for interest.”[30] We agree.
Jurisprudence
teaches us:
“2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit.”[31]
The case before
us involves an obligation not arising from a loan or forbearance of money;
thus, pursuant to Article 2209 of the Civil Code, the applicable interest rate
is six percent per annum. Since the
bill of lading did not specify the amount of demurrage, and the sum claimed by
private respondent increased as the days went by, the total amount demanded
cannot be deemed to have been established with reasonable certainty until the
trial court rendered its judgment. Indeed, “(u)nliquidated damages or claims, it is said, are those which
are not or cannot be known until definitely ascertained, assessed and
determined by the courts after presentation of proof.”[32] Consequently, the legal interest
rate is six percent, to be computed from September 28, 1990, the date of the
trial court’s decision. And in
accordance with Philippine Natonal Bank[33] and Eastern Shipping,[34] the rate of twelve percent per annum shall be charged
on the total then outstanding, from the time the judgment becomes final and
executory until its satisfaction.
Finally, the
Court notes that the matter of attorney’s fees was taken up only in the
dispositive portion of the trial court’s decision. This falls short of the settled requirement that the text of the
decision should state the reason for the award of attorney’s fees, for without
such justification, its award would be a “conclusion without a premise, its
basis being improperly left to speculation and conjecture.”[35]
WHEREFORE, the assailed Decision is hereby AFFIRMED
with the MODIFICATION that the legal interest of six percent per
annum shall be computed from September 28, 1990 until its full payment before
finality of judgment. The rate of
interest shall be adjusted to twelve percent per annum, computed from the time
said judgment became final and executory until full satisfaction. The award of attorney’s fees is DELETED.
SO
ORDERED.
[1]
Rollo, pp. 20-32.
[2]
Tenth Division, composed of J. Fermin A. Martin, Jr., ponente;
and JJ. Emeterio C. Cui (chairman) and Eugenio S. Labitoria, concurring.
[3]
Rollo, pp. 15-18. The RTC
decision was penned by Judge Lourdes K. Tayao-Jaguros, who was later appointed to
the Court of Appeals, from where she has now retired.
[4]
Ibid., pp. 17-18.
[5]
Petitioner’s brief before the Court of Appeals, pp. 5-8; record of the
Court of Appeals, pp. 21-24.
[6]
Rollo, p. 35.
[7]
The case was deemed submitted for resolution on June 3, 1996 upon this
Court’s receipt of petitioner’s memorandum.
[8]
Petitioner’s memorandum, p. 4; Rollo, p. 87.
[9]
Magellan Mftg. Marketing Corp. vs. Court of Appeals, 201 SCRA
102, 110, August 22, 1991, per Regalado, J.
[10]
13 C.J.S. 239. See also Pan
American World Airways, Inc. vs. IAC, 164 SCRA 268, 275, August 11,
1988; citing Ong Yiu vs. Court of Appeals, 91 SCRA 223, 231, June
29, 1979.
[11]
17 C.J.S. 672.
[12]
Saludo, Jr. vs. Court of Appeals, 207 SCRA 498, 527-528, March
23, 1992.
[13]
Ibid., p. 5, Rollo, p. 88.
[14]
Ibid., pp. 5-6; Rollo, pp. 88-89.
[15]
Petitioner’s memorandum, pp. 9-10; Rollo, pp. 92-93.
[16]
See petitioner’s motion for reconsideration before the Court of
Appeals, p. 2; record of the Court of Appeals, p. 81.
[17]
See Exhibit B, Folder of Exhibits, p. 2.
[18]
See Exhibit D, Folder of Exhibits, p. 5.
[19]
Decision of the Court of Appeals, pp. 4-5; Rollo, pp. 23-24.
[20] Art. 1266 of the Civil Code provides:
“Art. 1266. The debtor in
obligations to do shall also be released when the prestation becomes legally or
physically impossible without the fault of the obligor.”
[21]
Sanchez vs. Court of Appeals, G.R. No. 108947, p. 28, September
29, 1997, per Panganiban, J.; quoting Caltex (Philippines), Inc.
vs. Court of Appeals, 212 SCRA 448, 461, August 10, 1992, per Regalado, J.
[22]
22 U.S. (9 Wheat.) 362; 6 L. Ed. 111 (1824).
[23]
22 U.S. at 378.
[24]
Fuentes vs. Court of Appeals, G.R. No. 109849, p. 9, February 26,
1997, per Panganiban, J.
[25]
See computation of CBCS Guaranteed Fast Collection Services, Exh. F-1,
Folder of Exhibits, p. 8.
[26]
Exh. E, Folder of Exhibits, p. 6.
[27]
TSN, pp. 5-6, August 31, 1988.
[28]
Gilmore, Grant and Black, Charles, The Law of Admiralty, p. 120,
2nd ed. (1975).
[29]
See Irrevocable Letter of Credit No. 82-1858, rollo, p. 11.
[30]
Petitioner’s memorandum, p. 10; rollo, p. 93.
[31]
Eastern Shipping Lines, Inc. vs. Court of Appeals, 234 SCRA 88,
July 12, 1994, per Vitug, J. See also Philippine National Bank vs. Court of Appeals, 263
SCRA 766, 770, October 30, 1996.
[32]
Central Azucera de Bais vs. Court of Appeals, 188 SCRA 328, 339,
August 3, 1990, per Regalado, J.
[33]
263 SCRA at 772.
[34]
234 SCRA at 97.
[35]
Francel Realty Corporation vs. Court of Appeals, 252 SCRA 127,
134, January 22, 1996, per Mendoza, J.; citing Buan vs. Camaganacan,
16 SCRA 321, February 28, 1966.