A.C. No.

4058 March 12, 1998

BENGUET ELECTRIC COOPERATIVE, INC. complainant,
vs.
ATTY. ERNESTO B. FLORES, respondent.

PANGANIBAN, J.:
The profession of law exacts the highest standards from its members and brooks no violation of
its code of conduct. Accordingly, a lawyer who trifles with judicial processes, engages in forum
shopping and blatantly lies in his pleadings must be sanctioned.
The Case
This is an administrative complaint against Atty. Ernesto Flores filed by Benguet Electric
Cooperative, Inc. (BENECO) before this Court on July 5, 1993, seeking his removal or
suspension from the bar for forum shopping, which amounted to "grave misconduct, . . . unduly
delaying the administration of justice, and violating with impunity his oath of office and applicable
laws and jurisprudence."1
After the respondent submitted his Comment, dated August 21, 1993, we referred the case to
the Integrated Bar of the Philippines (IBP) on September 27, 1993 for investigation, report and
recommendation. On August 15, 1997, we received a resolution from the IBP Board of
Governors, finding respondent guilty of violating Canons 10 and 12 of the Code of Professional
Responsibility and recommending his suspension from the practice of law for a period of six
months, viz:
RESOLUTION NO. XII-97-149
Adm. Case NO. 4058
Benguet Electric Cooperative, Inc. vs.
Atty. Ernesto B. Flores
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED,
the Report and Recommendation of the Investigating Commissioner in the aboveentitled case, hereinmande [sic] part of this Resolution/Decision as Annex "A"; and
finding the recommendation therein to be fully supported by the evidence on record
and the applicable laws and rules, Respondent Atty. Ernesto Flores is hereby
SUSPENDED from the practice of law for six (6) months for violating the provision of
Canon[s] 10 and 12 of the Code of Professional Responsibility.2
The Facts

Because the parties3 agreed to dispense with the presentation of testimonial evidence, the case
was submitted for resolution on the basis of their documentary evidence. As found by
Investigating Commissioner Plaridel C. Jose, the facts are as follows:
. . . On February 25, 1993, Labor Arbiter Irenarco Rimando of the National Labor
Relations Commission, Regional Arbitration Branch, Cordillera Administrative Region,
Baguio City, issued a Writ of Execution (. . .) in NLRC Case No. RAB-1-0313-84 to
enforce the decision rendered by the Supreme Court on May 18, 1992 in G.R. No.
89070 (Benguet Electric Cooperative, Inc. vs. NLRC, 209 SCRA 55). The Writ of
Execution was issued on motion of Benguet Electric Cooperative (BENECO for short)
to collect the amount of P344,000.00 which it paid to Peter Cosalan during the
pendency of the case before the Supreme Court, on the basis of its decision ordering
the respondent board members "to reimburse petitioner BENECO any amount that it
may be compelled to pay to respondent Cosalan by virtue of the decision of Labor
Arbiter Amado T. Adquilen."
After issuance of the writ of execution, the respondent, as new counsel for the losing
litigant-members of the BENECO Board of Directors, filed a Motion for Clarification
with the Third Division of the Supreme Court in G.R. No. 89070, the minute resolution
to wit: "to note without action the aforesaid motion".
Thereafter, the respondent instituted a suit docketed as Civil Case NO. 2738-R (. . .)
with the Regional Trial Court, Branch 7, Baguio City, seeking to enjoin the defendants
Clerk of Court, et al. from levying on their properties in satisfaction of the said writ of
execution. That case, however, was dismissed by the Presiding Judge Clarence
Villanueva in his Order dated March 18, 1993 (. . .).
Accordingly, the Office of the Clerk of Court, MTC, Baguio City, through Sheriff III
Wilfredo Mendez, proceeded to levy on the properties of the losing board members of
BENECO. Thus, a sale at public auction was set on June 1, 1993, at 10:00 o'clock in
the morning in front of the Baguio City Hall, per Sheriff's Notice of Sale dated May 4,
1993 (. . .), of the properties of Abundio Awal and Nicasio Aliping[,] two of the losing
members of the Board of Directors of BENECO in the aforementioned case.
Respondent claims in his comment (. . .) that Branch 7, motu proprio, dismissed Civil
Case No. 2738-R for lack of jurisdiction on March 18, 1993, which dismissal was [sic]
became final due to respondent's failure to perfect an appeal therefrom which claim
according to the complainant, constitute[s] deliberate misrepresentation, if not
falsehood, because the respondent indeed interposed an appeal such that on May 11,
1993, the RTC 7 of Baguio City transmitted the entire record of Civil Case No. 2738-8
to the Court of Appeals per certified machine copy of the letter transmittal of same
date (. . .).
While respondent "never essentially intended to assail the issuance by the NLRC of
the Writ of Execution . . . nor sought to undo it" (. . .) the complaint in Civil Case No.
2738-R which he filed prays for the immediate issuance of a temporary restraining
order and/or preliminary writ of injunction for defendants Clerk of Court and ExOfficio City Sheriff to cease and desist from enforcing the execution and levy of the
writ of execution issued by the NLRC-CAR, pending resolution of the main action in
said court (. . .) which complainant likewise claims as an unprocedural maneuver to
frustrate the execution of the decision of the Supreme Court in G.R. No. 89070 in
complete disregard of settled jurisprudence that regular courts have no jurisdiction to
hear and decide questions which arise and are incidental to the enforcement of
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decisions, orders and awards rendered in labor cases citing the case of Cangco
vs. CA, 199 SCRA 677, a display of gross ignorance of the law.
On May 26, 1993, respondent again filed for Abundio Awal and Nicasio Aliping with the
Regional Trial Court, Branch 9, La Trinidad, Benguet, separate complaints for Judicial
Declaration of Family Home Constituted, Ope Lege, and thus Exempt from Levy and
Execution the subject properties with Damages, etc. docketed as Civil Cases Nos. 93F-0414 (. . .) and 93-F-0415 (. . .), which are essentially similar actions to enjoin the
enforcement of the judgment rendered in NLRC Case No. RAB-1-0313-84. He also
filed an urgent Motion Ex-parte (. . .) praying for temporary restraining order in these
two (2) cases.
The complainant further alleges that respondent's claim for damages against the
defendant Sheriff is another improper and unprocedural maneuver which is likewise a
violation of respondent's oath not to sue on groundless suit since the said Sheriff was
merely enforcing a writ of execution as part of his job.
Recommendation of the IBP
As noted earlier, Investigating Commissioner Plaridel C. Jose recommended, and the IBP Board
of Governors concurred, that respondent be suspended from the bar for six months for:
1. Falsehood, for stating in his comment before this Court that the order of the RTC dismissing
the complaint in Civil Case No. 2738-R was not appealed on time
2. Failure to comply with Supreme Court Circular No. 28-91 on forum shopping

We adopt and affirm the recommendation of the IBP suspending the respondent from the bar,
but we increase the period from six (6) months to one (1) year and six (6) months.
Forum Shopping
Circular No. 28-91, 5 dated September 4, 1991 which took effect on January 1, 1992, requires a
certificate of non-forum shopping to be attached to petitions filed before this Court and the Court
of Appeals. This circular was revised on February 8, 1994. The IBP found that the respondent
had violated it, because the complaint he filed before the RTC of Baguio City "lack[ed] the
certification required by Supreme Court Circular No. 28-91."6
We distinguish. Respondent's failure to attach the said certificate cannot be deemed a violation
of the aforementioned circular, because the said requirement applied only to petitions filed with
this Court and the Court of Appeals.7 Likewise inapplicable is Administrative Circular No. 04-94
dated February 8, 1994 which extended the requirement of a certificate of non-forum shopping
to all initiatory pleadings filed in all courts and quasi-judicialagencies other than this Court and
the Court of Appeals. Circular No. 04-94 became effective only on April 1, 1994, but the assailed
complaint for injunction was filed on March 18, 1993, and the petition for the constitution of a
family home was instituted on May 26, 1993.
Be that as it may, respondent is still guilty of forum shopping. In Chemphil Export and Import
Corporation vs.Court of Appeals,8 this Court declared that "(t)he rule against forum shopping has
long been established and subsequent circulars9 of this Court merely formalized the prohibition
and provided the appropriate penalties against transgressors." The prohibition is found in
Section 1(e) of Rule 16 and Section 4 of Rule 2 of the 1964 Rules of Court, which provide:
Sec. 1. Grounds. Within the time for pleading, a motion to dismiss the action may
be made on any of the following grounds:

Commissioner Jose ratiocinated:

xxx
A cursory glance of (sic) . . . the complaint filed by the respondent in Civil Case No.
2738-R before the RTC of Baguio City, which complaint was signed and verified under
oath by the respondent, reveals that it lacks the certification required by Supreme
Court Circular No. 28-91 which took effect on January 1, 1992 to the effect that "to the
best of his knowledge, no such action or proceeding is pending in the Supreme Court,
Court of Appeals or different divisions thereof or any tribunal or agency. If there is any
other action pending, he must state the status of the same. If he should learn that a
similar action or proceeding has been filed or pending before the Supreme Court,
Court of Appeals or different divisions thereof or any tribunal or agency[,] he should
notify the court, tribunal or agency within five (5) days from such notice."
Among the other penalties, the said circular further provides that the lawyer may also
be subjected to disciplinary proceedings for non-compliance thereof.
In sum, it is clear that the respondent violated the provisions of Canon[s] 10 and 12 of
the Code of Professional Responsibility under which the lawyer owes candor, fairness
and good faith to the court and exert[s] every effort and consider[s] it his duty to assist
in the speedy and efficient administration of justice.4
This Court's Ruling

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xxx

(e) That there is another action pending between the same parties for the same
cause;
xxx xxx xxx10
Sec. 4. Effect of splitting a single cause of action. If two or more complaints are
brought for different parts of a single cause of action, the filing of the first may be
pleaded in abatement of the other or others, in accordance with section 1(e) of Rule
16, and a judgment upon the merits in any one is available as a bar in the others. 11
The prohibition is also contained in Circular No. 28-91. This circular did not only require that a
certification of non-forum shopping be attached to the petitions filed before this Court or the
Court of Appeals; it also decreed that forum shopping constituted direct contempt of court and
could subject the offending lawyer to disciplinary action. The third paragraph thereof reads:
3. Penalties.
(a) Any violation of this Circular shall be a cause for the summary dismissal of the
multiple petition or complaint.
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(b) Any willful and deliberate forum shopping by any party and his lawyer wit the filing
of multiple petitions and complaints to ensure favorable action shall constitute direct
contempt of court.
(c) The submission of false certification under Par. 2 of the Circular shall likewise
constitute contempt of Court, without prejudice to the filing of criminal action against
the guilty party. The lawyer may also be subjected to disciplinary proceedings.
(Emphasis supplied.)
The foregoing were substantially reproduced in Revised Circular No. 28-91 12 and Administrative
Circular No. 04-94.13
In a long line of cases, this Court has held that forum shopping exists when, as a result of an
adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal
or certiorari) in another,14 or when he institutes two or more actions or proceedings grounded on
the same cause, on the gamble that one or the other court would make a favorable
disposition.15 The most important factor in determining the existence of forum shopping is the
"vexation caused the courts and parties-litigants by a party who asks different courts to rule on
the same or related causes or grant the same or substantially the same reliefs." 16
After this Court rendered its Decision17 in Benguet Electric Cooperative, Inc. vs. National Labor
Relations Commission, et al.18 and upon motion of BENECO, Labor Arbiter Irenarco R. Rimando
issued a writ of execution 19ordering the clerk of court and ex officio city sheriff of the Municipal
Trial Court of Baguio City to levy on and sell at public auction personal and real property of the
members of the Board of Directors of BENECO.
On March 18, 1993, Respondent Flores, acting as counsel for BENECO Board Members Victor
Laoyan, Nicasio Aliping, Lorenzo Pilando and Abundio Awal, filed with the RTC an injunction suit
praying for the issuance of a temporary restraining order (TRO) "to preserve the status quo as
now obtaining between the parties," as well as a writ of preliminary preventive injunction
ordering the clerk of court and the ex officio city sheriff of the MTC of Baguio to "cease and
desist from enforcing by execution and levy the writ of execution from the NLRC-CAR, pending
resolution of the main action raised in court."20
When this injunction case was dismissed, Respondent Flores filed with another branch of the
RTC two identical but separate actions both entitled "Judicial Declaration of Family Home
Constituted, ope lege, Exempt from Levy and Execution; with Damages, etc.," docketed as Civil
Case Nos. 93-F-0414 and 93-F-0415.21 The said complaints were supplemented by an "Urgent
Motion Ex Parte"22 which prayed for an order to temporarily restrain Sheriff Wilfredo V. Mendez
from proceeding with the auction sale of plaintiffs' property "to avoid rendering ineffectual and
functus [oficio] any judgment of the court later in this [sic] cases, until further determined by the
court."
Civil Case Nos. 93-F-0414 and 93-F-0415 are groundless suits. Modequillo
vs. Breva,23 reiterated in Manacop vs.Court of Appeals,24 shows the frivolity of these
proceedings:
Under the Family Code, a family home is deemed constituted on a house and lot from
the time it is occupied as a family residence. There is no need to constitute the same
judicially or extrajudicially as required in the Civil Code. If the family actually resides in
the premises, it is, therefore, a family home as contemplated by law. Thus, the
creditors should take the necessary precautions to protect their interest before
extending credit to the spouses or head of the family who owns the home.

xxx

xxx

xxx

The exemption provided as aforestated is effective from the time of the constitution of
the family home as such, and lasts so long as any of its beneficiaries actually resides
therein.
Adhering to the Court's declaration in said cases, the subject properties are deemed constituted
as family homes by operation of law under Article 153 of the Family Code.
The suits for the constitution of a family home were not only frivolous and unnecessary; they
were clearly asking for reliefs identical to the prayer previously dismissed by another branch of
the RTC, i.e, to forestall the execution of a final judgment of the labor arbiter. That they were
filed ostensibly for the judicial declaration of a family home was a mere smoke screen; in
essence, their real objective was to restrain or delay the enforcement of the writ of execution. In
his deliberate attempt to obtain the same relief in two different courts, Respondent Flores was
obviously shopping for a "friendly" forum which would capitulate to his improvident plea for an
injunction and was thereby trifling with the judicial process.25
We remind the respondent that, under the Code of Professional Responsibility,26 he had a duty
to assist in the speedy and efficient administration of justice.27 The Code also enjoins him from
unduly delaying a case by impeding the execution of a judgment or by misusing court
processes.28
In consonance with Millare vs. Montero29 and Garcia vs. Francisco,30 respondent should be
suspended from the practice of law for one year. In Millare, the respondent filed with different
courts a total of six appeals, complaints and petitions which frustrated and delayed the execution
of a final judgment. Holding that "respondent 'made a mockery of the judicial processes' and
disregarded canons of professional ethics in intentionally frustrating the rights of a litigant in
whose favor a judgment in the case was rendered [and], thus, 'abused procedural rules to defeat
the ends of substantial justice,'"31 this Court suspended the respondent from the practice of law
for one year.
In Garcia, the respondent was also suspended for one year from the practice of law, for violating
the proscription against forum shopping. This Court held that "he deserve[d] to be sanctioned,
not only as a punishment for his misconduct but also as a warning to other lawyers who may be
influenced by his example."32
Falsehood
The investigating commissioner also held respondent liable for committing a falsehood because,
in this administrative case, he stated in his comment that he had not "perfected an appeal on the
dismissal" of his petition for injunction. In his said comment, the respondent stated:
Branch 7 (of the RTC) motu proprio, dismissed the case for lack of jurisdiction on
March 18, 1993. Not having perfected an appeal on the dismissal, the order of
dismissal became final under the Rules 15 days after its receipt by respondent on
record, or before April 6, 1993. So that today this case is no longer pending.
xxx

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xxx

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It should be noted that when Civil Case Nos. 93-F-0414 and 93-F-0415 for family
homes and damages were filed in the court below on May 26, 1993, Civil Case
NO. 2378-R which seems to give basis to the present Complaint was deemed
terminated, there being no appeal formally taken and perfected in accordance with the
Rules.
xxx

xxx

xxx

And that precisely was the primal reason why respondent decided not to appeal any
further anymore [sic] the order of dismissal for lack of jurisdiction of the court below in
Civil Case No. 2738, and let it be deemed final by the Rules and
jurisprudence.33 (Emphasis supplied.)

Before we close, we note that this simple case was referred to the IBP on September 27, 1993.
It was deemed submitted for resolution per the investigating commissioner's order dated May
10, 1995. However, the investigating commissioner submitted his report only on May 5, 1997.
Moreover, the IBP transmitted its recommendation to the Court only through a letter dated July
31, 1997, which was received by the Office of the Bar Confidant on August 15, 1997. Why it took
the IBP almost four years to finish its investigation of the case and over two years from the date
the parties filed their last pleadings to resolve it escapes us. After all, the case did not require
any trial-type investigation, and the parties submitted only documentary evidence to prove or
rebut their respective cases. Thus, we find it opportune to urge the IBP to hasten the disposition
of administrative cases and to remind it that this Court gives it only ninety days to finish its
investigation, report and recommendation. Should it require more time, it should file with the
Court a request for extension, giving the reason for such request.

The indelible fact, however, is that respondent did file an appeal which was perfected later on.
The original records of the injunction suit had been transmitted to the appellate
court.34 Moreover, the Court of Appeals issued a resolution dismissing the appeal.35 Thus, in
denying that he had appealed the decision of the RTC, respondent was making a false
statement.

WHEREFORE, for trifling with judicial processes by resorting to forum shopping, Respondent
Ernesto B. Flores is hereby SUSPENDED from the practice of law for a period of ONE (1) YEAR
and, for violating his oath and the Canon of Professional Responsibility to do no falsehood, he is
SUSPENDED for another period of ONE (1) YEAR, resulting in a total period of TWO (2)
YEARS, effective upon finality of this Decision. He is WARNED that a repetition of a similar
misconduct will be dealt with more severely.

Respondent argues that the withdrawal of his appeal means that no appeal was made under
Section 2 of Rule 50 of the Rules of Court. The pertinent provisions of Rule 5036 read:

Let a copy of this Decision be included in his files which are with the Office of the Bar Confidant,
and circularized to all courts and to the Integrated Bar of the Philippines.

Sec. 2. Effect of dismissal. Fifteen (15) days after the dismissal of an appeal, the
clerk shall return to the court below the record on appeal with a certificate under the
seal of the court showing that the appeal has been dismissed. Upon the receipt of
such certificate in the lower court the case shall stand there as though no appeal had
ever been taken, and the judgment of the said court may be enforced with the
additional costs allowed by the appellate court upon dismissing the appeal.
xxx

xxx

SO ORDERED.

xxx

Sec. 4. Withdrawal of appeal. An appeal may be withdrawn as of right at any time

before the filing of appellee's brief. . . . The withdrawal of an appeal shall have the
same effect as that of a dismissal in accordance with section 2 of this rule.
Respondent's explanation misses the point. True, he withdrew his appeal. But it is likewise true
that he had actually filed an appeal, and that this was perfected. False then is his statement that
no appeal was perfected in the injunction suit. Worse, he made the statement before this Court
in order to exculpate himself, though in vain, from the charge of forum shopping.
A lawyer must be a disciple of truth. Under the Code of Professional Responsibility, he owes
candor, fairness and good faith to the courts.37 He shall neither do any falsehood, nor consent to
the doing of any. He also has a duty not to mislead or allow the courts to be misled by any
artifice.38
For this offense, we suspend the respondent from the practice of law for another year. True,
in Ordonio vs.Eduarte,39 Porac Trucking, Inc., vs. Court of Appeals40 and Erectors,
Inc. vs. NLRC,41 we imposed a suspension of only six months for a similar malfeasance. But in
Flores' case, his falsehood is aggravated by its brazenness, for it was committed in an attempt,
vain as it was, to cover up his forum shopping.

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G.R. No. 75349 October 13, 1986

ROSALINA BUAN, RODOLFO TOLENTINO, TOMAS MERCADO, CECILIA MORALES, LIZA
OCAMPO, Quiapo Church Vendors, for themselves and all others similarly situated as
themselves, petitioners,
vs.
OFFICER-IN-CHARGE GEMILIANO C. LOPEZ, JR., OFFICE OF THE MAYOR OF
MANILA, respondent.

NARVASA, J.:
On August 5, 1986 petitioners instituted in this Court a special civil action for prohibition to the
end that respondent Gemiliano C. Lopez, Jr., acting as Mayor of the City of Manila, be
"perpetually prohibited from arbitrarily, whimsically and capriciously revoking or cancelling ...
their licenses or permits (as hawkers or street vendors) and threatening the physical demolition
of their respective business stalls in the places specified in such licenses or permits. 1 They also
sought a temporary restraining order in view of Mayor Lopez' actual threats of physical
demolition of their respective small business establishment at 12:00 noon today." This the Court
granted on the same day. 2
Petitioners claim to be five of about 130 "licensed and duly authorized vendors of ... religious
articles, medicine herbs and plants around the Quiapo Church, ... Manila," bringing suit 'for
themselves and all others similarly situated as themselves." 3 They allege that their licenses
"were revoked or cancelled (by respondent Mayor) for reasons unknown to them which is
tantamount to deprivation of property without due process of laws," written notice of such
cancellation having been served on them on or about May 30 (actually May 3), 1986; that the
revocation of their licenses was beyond respondent Mayor's competence, since Section 171 (n)
of the Local Government Code (B.P. Blg. 337) authorizes the same only "for violation of the law
or ordinances or conditions upon which they have been granted " and no such violation had
been committed by them; 4 but this notwithstanding, respondent Mayor "had given (them) an
ultimatum of 7:00 up to 12:00 o'clock in the afternoon" (of August 5, 1986) to vacate the
premises where their respective stalls are situated or suffer physical demolition thereof. 5
In the light of the facts disclosed by the pleadings 6 and at the hearing of the case on August 13,
1986, the petition must be given short shrift.
The action must in the first place be abated on the ground of lis pendens, or more
correctly, auter action pendant pendency Of another action between the same parties for the
same cause. 7
It appears that on July 7, 1986 there was filed in the Regional Trial Court of Manila, docketed as
Civil Case No. 8636563, a special civil action of "prohibition with preliminary injunction" against
Acting Manila City Mayor Gemiliano Lopez, Jr. 8 It was filed by Samahang Kapatiran Sa
Hanapbuhay Ng Bagong Lipunan, Inc." (hereafter, simply "Samahan") composed, according to
the petition, of "some 300 individual owners and operators of separate business stalls ... mostly

at the periphery immediately 0beyond the fence of the Quiapo Church." The president of the
Samahan is Rosalina Buan and its Press Relations Officer, Liza Ocampo. 9 Rosalina Buan and
Liza Ocampo are two of the five petitioners in the case at bar, 10 described in the petition before
this Court as suing "for themselves and all others similarly situated as themselves": i.e., vendors
"around the Quiapo Church." 11 The three other petitioners also appear to
be Samahan members. 12
The petition in Case No. 86-36563 is grounded on the same facts as those in the case at bar:
the members of theSamahan had been legitimately engaged "in their respective business of
selling sundry merchandise, more particularly religious articles, flowers and ornamental plants,
and medicinal herbs;" they had been religiously paying "the corresponding license and permit
fees imposed by prevailing ordinances of the City of Manila," but this notwithstanding they had
been given written notice dated May 3, 1986 emanating from the Mayor's Office, advising of the
cancellation of their permits and their possible relocation to another site; and these acts "are
unjust, illegal arbitrary, oppressive and constitute grave abuse of discretion on the part of the
respondent.
There thus exists between the action before this Court and RTC Case No. 86-36563 Identity of
parties, or at least such parties as represent the same interests in both actions, as well as
Identity of rights asserted and relief prayed for, the relief being founded on the same facts, and
the Identity on the two preceding particulars is such that any judgment rendered in the other
action, will regardless of which party is successful, amount to res adjudicata in the action under
consideration: all the requisites, in fine, of auter action pendant. 13
Indeed, the petitioners in both actions, described in their petitions as vendors of religious
articles, herbs and plants, and sundry merchandise around the Quiapo Church or its "periphery,"
have incurred not only the sanction of dismissal of their case before this Court in accordance
with Rule 16 of the Rules of Court, but also the punitive measure of dismissal of both their
actions, that in this Court and that in the Regional Trial Court as well Quite recently, upon
substantially Identical factual premises, the Court en banc had occasion to condemn and
penalize the act of litigants of hearing the same suit in different courts, aptly described as
"forum-shopping," viz:
The acts of petitioners constitute a clear case of forum shopping, an act of
malpractice that is proscribed and condemned as trifling with the courts and
abusing their processes. It is improperconduct that tends to degrade the
administration of justice. The rule has been formalized in Section 17 of the
Interim Rules and Guidelines issued by this Court on January 11, 1983 in
connection with the implementation of the Judiciary Reorganization Act,
specifically with the grant in Section 9 of B.P. Blg. 129 of equal original
jurisdiction to the Intermediate Appellate Court to issue writs of mandamus,
prohibition, etc., and auxiliary writs or processes, whether or not in aid Of its
appellate jurisdiction. Thus, the cited Rule provides that no such petition
may be filed in the Intermediate Appellate Court 'if another similar petition
has been filed or is still pending in the Supreme Court' and vice-versa. The
Rule orders that "A violation of the rule shall constitute contempt of court
and shall be a cause for the summary dismissal of both petitions, without
prejudice to the taking of appropriate action against the counsel or party
concerned." The rule applies with equal force where the party having filed
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an action in the Supreme Court shops for the same remedy of prohibition
and a restraining order or injunction in the regional trial court (or vice-versa).
... 14
As already observed, there is between the action at bar and RTC Case No. 86-36563, an
Identity as regards parties, or interests represented, rights asserted and relief sought, as well as
basis thereof, to a degree sufficient to give rise to the ground for dismissal known as auter
action pendant or lis pendens 15 That same Identity puts into operation the sanction Of twin
dismissals just mentioned. The application of this sanction will prevent any further delay in the
settlement of the controversy which might ensue from attempts to seek reconsideration of or to
appeal from the Order of the Regional Trial Court in Civil Case No. 86-36563 promulgated on
July 15, 1986, which dismissed the petition upon grounds which appear persuasive. 16

be no occasion whatsoever to speak of the inhibition of any revocation or cancellation thereof.

And the "physical demolition of their respective business stalls" has already been consummated.
WHEREFORE, the petition is denied for lack of merit, and the Regional Trial Court is
commanded to dismiss Civil Case No. 86-36563 and to conduct no further proceedings in
connection therewith save in accordance with and in implementation of this Decision. Costs
against petitioners.
SO ORDERED.

It would seem that after the filing by Rosalina Buan and Liza Ocampo (president and press
relations officer, respectively, of the Quiapo Church vendors' association known as
the Samahan) of the petition in this case, "for themselves and all others similarly situated as
themselves" (i.e., the members of the Samahan; who are vendors in the area of Quiapo Church)
they came to the belated that in view of the pendency of the Identical action filed by them in the
Regional Trial Court (Case No. 86-36563), they were vulnerable to the accusation of "forum
shopping," and thus amenable to its dire consequences. This explains the filing in this Court by
their lawyers of a "MANIFESTATION WITH AFFIDAVIT OF WITHDRAWAL" on August 11,
1986, 17 another "MANIFESTATION AND MOTION" on August 29, 1986, and an "URGENT
MANIFESTATION AND MOTION TO STRIKE-OUT THE NAME ROSALINA BUAN AND LIZA
OCAMPO" on September 13, 1986. In these manifestations the case is made that the five (5)
petitioners in the action before this Court who are members of the Samahan "were forcibly
brainwashed and guarded by ... (Atty. Reynaldo Aralar) and his associates to accede to the
invitation of the said counsel ... to appear for them and file the case before the Honorable Court
knowingly (sic) that he was furnished the status quo-order of the same case pending before the
Regional Trial Court Branch 45 of Manila," and/or said Atty. Aralar and his associates had
perpetrated "piracy" of clients and "should be condemned and suspended for committing act of
shopping for courts." The claim does not inspire belief. It is so out of the ordinary as to require
clear and convincing evidence of its actuality, which is lacking in this case. It is also belied by the
fact that Rosalina Buan and Liza Ocampo themselves were among those who verified the
petition at bar before a notary public. 18 And the claim is undermined by the misrepresentation in
Buan's and Ocampo's "Joint Affidavit of Withdrawal" that the status quo order in RTC Case No.
8636563 was still subsisting and the case still pending trial 19 when in truth, the case had already
been dismissed and the restraining order lifted by Order of July 27, 1986.
Yet another reason exists for the denial of the petition. Not one of the petitioners or the "others
similarly situated as themselves" had a valid and subsisting license or permit as of the date of
the filing of their petition in this Court, August 5, 1986, all licenses and permits having expired
prior thereto. 20 This is confirmed by the few receipts submitted by petitioners 21 which all set out
expiry dates before August 5, 1986. The petitioners thus have no basis whatever to postulate a
right to ply their trade in the Quiapo area or elsewhere. The argument that the non-renewal by
the municipal authorities of their licenses was in effect a cancellation or revocation thereof
without cause is puerile.
Finally, the action for prohibition has become moot and academic by the occurrence of the acts
sought to be inhibited. The petitioners' permits and licenses have all expired; hence, there can
PALE cases | 6

G.R. No. 130068 October 1, 1998

FAR EASTERN SHIPPING COMPANY, petitioner,
vs.
COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY, respondents.
G.R. No. 130150 October, 1998
MANILA PILOTS ASSOCIATION, petitioner,
vs.
PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING COMPANY, respondents.

REGALADO, J.:
These consolidated petitions for review on certiorari seek in unison to annul and set aside the
decision 1 of respondent Court of Appeals of November 15, 1996 and its resolution 2 dated July
31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports Authority, Plaintiff-Appellee vs. Far
Eastern Shipping Company, Senen C. Gavino and Manila Pilots' Association, DefendantsAppellants," which affirmed with modification the judgment of the trial court holding the
defendants-appellants therein solidarily liable for damages in favor of herein private respondent.
There is no dispute about the facts as found by the appellate court,
thus
. . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the
USSR, owned and operated by the Far Eastern Shipping Company (FESC
for brevity's sake), arrived at the Port of Manila from Vancouver, British
Columbia at about 7:00 o'clock in the morning. The vessel was assigned
Berth 4 of the Manila International Port, as its berthing space. Captain
Roberto Abellana was tasked by the Philippine Port Authority to supervise
the berthing of the vessel. Appellant Senen Gavino was assigned by the
Appellant Manila Pilots' Association (MPA for brevity's sake) to conduct
docking maneuvers for the safe berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and stationed
himself in the bridge, with the master of the vessel, Victor Kavankov, beside
him. After a briefing of Gavino by Kavankov of the particulars of the vessel
and its cargo, the vessel lifted anchor from the quarantine anchorage and
proceeded to the Manila International Port. The sea was calm and the wind
was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the Tondo North
Harbor) one-half mile from the pier, Gavino ordered the engine stopped.
When the vessel was already about 2,000 feet from the pier, Gavino
ordered the anchor dropped. Kavankov relayed the orders to the crew of the

vessel on the bow. The left anchor, with two (2) shackles, were dropped.
However, the anchor did not take hold as expected. The speed of the vessel
did not slacken. A commotion ensued between the crew members. A brief
conference ensued between Kavankov and the crew members. When
Gavino inquired what was all the commotion about, Kavankov assured
Gavino that there was nothing to it.
After Gavino noticed that the anchor did not take hold, he ordered the
engines half-astern. Abellana, who was then on the pier apron, noticed that
the vessel was approaching the pier fast. Kavankov likewise noticed that the
anchor did not take hold. Gavino thereafter gave the "full-astern" code.
Before the right anchor and additional shackles could be dropped, the bow
of the vessel rammed into the apron of the pier causing considerable
damage to the pier. The vessel sustained damage too, (Exhibit "7-Far
Eastern Shipping). Kavankov filed his sea protest (Exhibit "1-Vessel").
Gavino submitted his report to the Chief Pilot (Exhibit "1-Pilot") who referred
the report to the Philippine Ports Authority (Exhibit 2-Pilot"). Abellana
likewise submitted his report of the incident (Exhibit "B").
Per contract and supplemental contract of the Philippine Ports Authority and
the contractor for the rehabilitation of the damaged pier, the same cost the
Philippine Ports Authority the amount of P1,126,132.25 (Exhibits "D" and
"E"). 3
On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor
General, filed before the Regional Trial Court of Manila, Branch 39, a complaint for a sum of
money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila Pilots'
Association, docketed as Civil Case No. 83-14958, 4 praying that the defendants therein be held
jointly and severally liable to pay the plaintiff actual and exemplary damages plus costs of suit. In
a decision dated August 1, 1985, the trial court ordered the defendants therein jointly and
severally to pay the PPA the amount of P1,053,300.00 representing actual damages and the
costs of suit. 5
The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot
of a commercial vessel, under compulsory pilotage, solely liable for the damage caused by the
vessel to the pier, at the port of destination, for his negligence? and (2) Would the owner of the
vessel be liable likewise if the damage is caused by the concurrent negligence of the master of
the vessel and the pilot under a compulsory pilotage?
As stated at the outset, respondent appellate court affirmed the findings of the court a
quo except that if found no employer-employee relationship existing between herein private
respondents Manila Pilots' Association (MPA, for short) and Capt. Gavino. 6 This being so, it
ruled instead that the liability of MPA is anchored, not on Article 2180 of the Civil Code, but on
the provisions of Customs Administrative Order No. 15-65, 7 and accordingly modified said
decision of the trial court by holding MPA, along with its co-defendants therein, still solidarily
liable to PPA but entitled MPA to reimbursement from Capt. Gavino for such amount of the
adjudged pecuniary liability in excess of the amount equivalent to seventy-five percent (75%) of
PALE cases | 7

its prescribed reserve

fund. 8
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the
Court of Appeals and both of them elevated their respective plaints to us via separate petitions
for review on certiorari.
In G. R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed
that the Court of Appeals seriously erred:
1. in not holding Senen C. Gavino and the Manila Pilots' Association as the
parties solely responsible for the resulting damages sustained by the pier
deliberately ignoring the established jurisprudence on the matter;
2. in holding that the master had not exercised the required diligence
demanded from him by the circumstances at the time the incident
happened;
3. in affirming the amount of damages sustained by the respondent
Philippine Ports Authority despite a strong and convincing evidence that the
amount is clearly exorbitant and unreasonable;
4. in not awarding any amount of counterclaim prayed for by the petitioner in
its answer; and
5. in not granting herein petitioner's claim against pilot Senen C. Gavino and
Manila Pilots' Association in the event that it be held
liable. 9
Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of
the incident, it was the compulsory pilot, Capt. Gavino, who was in command and had complete
control in the navigation and docking of the vessel. It is the pilot who supersedes the master for
the time being in the command and navigation of a ship and his orders must be obeyed in all
respects connected with her navigation. Consequently, he was solely responsible for the
damage caused upon the pier apron, and not the owners of the vessel. It claims that the master
of the boat did not commit any act of negligence when he failed to countermand or overrule the
orders of the pilot because he did not see any justifiable reason to do so. In other words, the
master cannot be faulted for relying absolutely on the competence of the compulsory pilot. If the
master does not observe that a compulsory pilot is incompetent or physically incapacitated, the
master is justified in relying on the pilot. 10
Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent
court on the solidary liability of FESC, MPA and Capt. Gavino, stresses the concurrent
negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov, * shipmaster of MV
Pavlodar, as the basis of their solidary liability for damages sustained by PPA. It posits that the
vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the
bridge of the vessel, as the former took over the helm of MV Pavlodar when it rammed and

damaged the apron of the pier of Berth No. 4 of the Manila International Port. Their concurrent
negligence was the immediate and proximate cause of the collision between the vessel and the
pier Capt. Gavino, for his negligence in the conduct of docking maneuvers for the safe
berthing of the vessel; and Capt. Kabankov, for failing to countermand the orders of the harbor
pilot and to take over and steer the vessel himself in the face of imminent danger, as well as for
merely relying on Capt. Gavino during the berthing procedure. 11
On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later
transferred to the Third Division. MPA, now as petitioner in this case, avers that respondent
court's errors consisted in disregarding and misinterpreting Customs Administrative Order No.
15-65 which limits the liability of MPA. Said pilots' association asseverates that it should not be
held solidarily liable with Capt. Gavino who, as held by respondent court is only a member, not
an employee, thereof. There being no employer-employee relationship, neither can MPA be held
liable for any vicarious liability for the respective exercise of profession by its members nor be
considered a joint tortfeasor as to be held jointly and severally liable. 12 It further argues that
there was erroneous reliance on Customs Administrative Order No. 15-65 and the constitution
and by-laws of MPA, instead of the provisions of the Civil Code on damages which, being a
substantive law, is higher in category than the aforesaid constitution and by-laws of a
professional organization or an administrative order which bears no provision classifying the
nature of the liability of MPA for the negligence its member pilots. 13
As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage
services since July 28, 1994 and has ceased to be a member of petitioner pilots' association. He
is not joined as a petitioner in this case since his whereabouts are unknown. 14
FESC's comment thereto relied on the competence of the Court of Appeals in construing
provisions of law or administrative orders as bases for ascertaining the liability of MPA, and
expressed full accord with the appellate court's holding of solidary liability among itself, MPA and
Capt. Gavino. It further avers that the disputed provisions of Customs Administrative Order No.
15-65 clearly established MPA's solidary liability. 15
On the other hand, public respondent PPA, likewise through representations by the Solicitor
General, assumes the same supportive stance it took in G.R. No. 130068 in declaring its total
accord with the ruling of the Court of Appeals that MPA is solidarily liable with Capt. Gavino and
FESC for damages, and in its application to the fullest extent of the provisions of Customs
Administrative Order No. 15-65 in relation to MPA's constitution and by-laws which spell out the
conditions of and govern their respective liabilities. These provisions are clear and unambiguous
as regards MPA's liability without need for interpretation or construction. Although Customs
Administrative Order No. 15-65 is a mere regulation issued by an administrative agency
pursuant to delegated legislative authority to fix details to implement the law, it is legally binding
and has the same statutory force as any valid statute. 16
Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated
with G.R. No. 130068. 18
Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that
the conduct of the respective counsel for FESC and PPA leaves much to be desired, to the
displeasure and disappointment of this Court.
PALE cases | 8

Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 2891 which provided for what has come to be known as the certification against forum shopping as
an additional requisite for petitions filed with the Supreme Court and the Court of Appeals, aside
from the other requirements contained in pertinent provisions of the Rules of Court therefor, with
the end in view of preventing the filing of multiple complaints involving the same issues in the
Supreme Court, Court of Appeals or different divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42 provides:

tribunal or agency, I/we undertake to report that fact within five (5) days
therefrom to this Honorable Court.
This motion having been granted, FESC subsequently filed its petition on September
26, 1997, this time bearing a "verification and certification against forum-shopping"
executed by one Teodoro P. Lopez on September 24, 1997, 22 to wit:
VERIFICATION AND CERTIFICATION

xxx xxx xxx

AGAINST FORUM SHOPPING

The petitioner shall also submit together with the petition a certification
under oath that he has not theretofore commenced any other action
involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such
other action or proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has been filed or
is pending before the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly
inform the aforesaid courts and other tribunal or agency thereof within five
(5) days therefrom. (Emphasis ours.)

in compliance with Section 4(e), Rule 45 in relation

For petitions for review filed before the Supreme Court, Section 4(e), Rule 45
specifically requires that such petition shall contain a sworn certification against forum
shopping as provided in the last paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty.
Herbert A. Tria, is the counsel of record for FESC in both G.R. No. 130068 and G.R. No.
130150.
G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing
by FESC through counsel on August 22, 1997 of a verified motion for extension of time to file its
petition for thirty (30) days from August 28, 1997 or until September 27, 1997. 20 Said motion
contained the following certification against forum shopping 21 signed by Atty. Herbert A. Tria as
affiant:

to Section 2, Rule 42 of the Revised Rules of Civil Procedure

I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state:
1. That I am the Manager, Claims Department of Filsov Shipping Company,
the local agent of petitioner in this case.
2. That I have caused the preparation of this Petition for Review
on Certiorari.
3. That I have read the same and the allegations therein contained are true
and correct based on the records of this case.
4. That I certify that petitioner has not commenced any other action or
proceeding involving the same issues in the Supreme Court or Court of
Appeals, or any other tribunal or agency, that to the best of my own
knowledge, no such action or proceeding is pending in the Supreme Court,
the Court of Appeals or any other tribunal or agency, that if I should
thereafter learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or any other
tribunal or agency, I undertake to report the fact within five (5) days
therefrom to this Honorable Court. (Italics supplied for emphasis.)

CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other action or
proceeding involving the same issues in the Supreme Court, the Court of
Appeals, or any other tribunal or agency; that to the best of my own
knowledge, no such action or proceeding is pending in the Supreme Court,
the Court of Appeals, or any other tribunal or agency; that if I/we should
thereafter learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or any other

Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending
with the Third Division was duly filed on August 29, 1997 with a copy thereof furnished on the
same date by registered mail to counsel for FESC. 23 Counsel of record for MPA. Atty. Jesus P.
Amparo, in his verification accompanying said petition dutifully revealed to the Court that
xxx xxx xxx
3. Petitioner has not commenced any other action or proceeding involving
the same issues in this Honorable Court, the Court of Appeals or different
Divisions thereof, or any other tribunal or agency,but to the best of his
PALE cases | 9

knowledge, there is an action or proceeding pending in this Honorable

Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports
Authority and Court of Appeals with a Motion for Extension of time to file
Petition For Review by Certiorari filed sometime on August 18, 1987. If
undersigned counsel will come to know of any other pending action or claim
filed or pending he undertakes to report such fact within five (5) days to this
Honorable Court. 24 (Emphasis supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29,
1997 and taking judicial notice of the average period of time it takes local mail to reach its
destination, by reasonable estimation it would be fair to conclude that when FESC filed its
petition in G.R. No. 130068 on September 26, 1997, it would already have received a copy of
the former and would then have knowledge of the pendency of the other petition initially filed
with the First Division. It was therefore incumbent upon FESC to inform the Court of that fact
through its certification against forum shopping. For failure to make such disclosure, it would
appear that the aforequoted certification accompanying the petition in G.R. No. 130068 is
defective and could have been a ground for dismissal thereof.

prevent their realization, charged as he is with the primary task of assisting in the speedy and
efficient administration of justice. 32
Sad to say, the members of said law firm sorely failed to observe their duties as responsible
members of the Bar. Their actuations are indicative of their predisposition to take lightly the
avowed duties of officers of the Court to promote respect for law and for legal processes. 33 We
cannot allow this state of things to pass judicial muster.
In view of the fact that at around the time these petitions were commenced, the 1997 Rules of
Civil Procedure had just taken effect, the Court treated infractions of the new Rules then with
relative liberality in evaluating full compliance therewith. Nevertheless, it would do well to remind
all concerned that the penal provisions of Circular No. 28-91 which remain operative
provides, inter alia:
3. Penalties.
xxx xxx xxx

Even assuming that FESC had not yet received its copy of MPA's petition at the time it filed its
own petition and executed said certification, its signatory did state "that if I should thereafter
learn that a similar action or proceeding has been filed or is pending before the Supreme Court,
the Court of Appeals or any other tribunal or agency, I undertake to report the fact within five (5)
days therefrom to this Honorable Court." 25 Scouring the records page by page in this case, we
find that no manifestation concordant with such undertaking was then or at any other time
thereafter ever filed by FESC nor was there any attempt to bring such matter to the attention of
the Court. Moreover, it cannot feign non-knowledge of the existence of such other petition
because FESC itself filed the motion for consolidation in G.R. No. 130150 of these two cases on
April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario,
displays an unprofessional tendency of taking the Rules for granted, in this instance exemplified
by its pro forma compliance therewith but apparently without full comprehension of and with less
than faithful commitment to its undertakings to this Court in the interest of just, speedy and
orderly administration of court proceedings.
As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the
court. 26 He is an officer of the court exercising a privilege which is indispensable in the
administration of justice. 27 Candidness, especially towards the courts, is essential for the
expeditious administration of justice. Courts are entitled to expect only complete honesty from
lawyers appearing and pleading before them. 28 Candor in all dealings is the very essence of
honorable membership in the legal profession. 29 More specifically, a lawyer is obliged to
observe the rules of procedure and not to misuse them to defeat the ends of justice. 30 It
behooves a lawyer, therefore, to exert every effort and consider it his duty to assist in the speedy
and efficient administration of justice. 31 Being an officer of the court, a lawyer has a
responsibility in the proper administration of justice. Like the court itself, he is an instrument to
advance its ends the speedy, efficient, impartial, correct and inexpensive adjudication of
cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these
objectives but should likewise avoid any unethical or improper practices that impede, obstruct or

(c) The submission of a false certification under Par. 2 of the Circular shall
likewise constitute contempt of court, without prejudice to the filing of
criminal action against the guilty party. The lawyer may also be subjected to
disciplinary proceedings.
It must be stressed that the certification against forum shopping ordained under the Rules is to
be executed by thepetitioner, and not by counsel. Obviously it is the petitioner, and not always
the counsel whose professional services have been retained for a particular case, who is in the
best position to know whether he or it actually filed or caused the filing of a petition in that case.
Hence, a certification against forum shopping by counsel is a defective certification. It is clearly
equivalent to non-compliance with the requirement under Section 2, Rule 42 in relation to
Section 4, Rule 45, and constitutes a valid cause for dismissal of the petition.
Hence, the initial certification appended to the motion for extension of time to file petition in G.R.
No. 130068 executed in behalf of FESC by Atty. Tria is procedurally deficient. But considering
that it was a superfluity at that stage of the proceeding, it being unnecessary to file such a
certification with a mere motion for extension, we shall disregard such error. Besides, the
certification subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect to a
certain extent, despite the inaccuracies earlier pointed out. In the same vein, we shall consider
the verification signed in behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as
substantial compliance inasmuch as it served the purpose of the Rules of informing the Court of
the pendency of another action or proceeding involving the same issues.
It bears stressing that procedural rules are instruments in the speedy and efficient administration
of justice. They should be used to achieve such end and not to derail it. 34
Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor
General at the time, the same legal team of the Office of the Solicitor General (OSG, for short)
composed of Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, with
PALE cases | 10

the addition of Assistant Solicitor General Pio C. Guerrero very much later in the proceedings,
represented PPA throughout the appellate proceedings in both G.R. No. 130068 and G.R. No.
130150 and was presumably fully acquainted with the facts and issues of the case, it took the
OSG an inordinately and almost unreasonably long period of time to file its comment, thus
unduly delaying the resolution of these cases. It took several changes of leadership in the OSG
from Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez before the
comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning
that no further extensions shall be granted, and personal service on the Solicitor General himself
of the resolution requiring the filing of such comment before the OSG indulged the Court with the
long required comment on July 10, 1998. 35This, despite the fact that said office was required to
file its comment way back on November 12, 1997. 36 A closer scrutiny of the records likewise
indicates that petitoner FESC was not even furnished a copy of said comment as required by
Section 5, Rule 42. Instead, a copy thereof was inadvertently furnished to MPA which, from the
point of view of G.R. No. 130068, was a non-party. 37 The OSG fared slightly better in G.R. No.
130150 in that it took only six (6) extensions, or a total of 180 days, before the comment was
finally filed. 38 And while it properly furnished petitioner MPA with a copy of its comment, it would
have been more desirable and expedient in this case to have furnished its therein co-respondent
FESC with a copy thereof, if only as a matter of professional courtesy. 39
This undeniably dilatory disinclination of the OSG to seasonably file required pleadings
constitutes deplorable disservice to the tax-paying public and can only be categorized as
censurable inefficiency on the part of the government law office. This is most certainly
professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion for
consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its familiarity with the
background of the case and if only to make its job easier by having to prepare and file only one
comment. It could not have been unaware of the pendency of one or the other petition because,
being counsel for respondent in both cases, petitioner is required to furnish it with a copy of the
petition under pain of dismissal of the petition for failure otherwise. 40
Besides, in G.R. 130068, it prefaces its discussions thus
Incidentally, the Manila Pilots' Association (MPA), one of the defendantsappellants in the case before the respondent Court of Appeals, has taken a
separate appeal from the said decision to this Honorable Court, which was
docketed as G.R. No. 130150 and entitled "Manila Pilots' Association,
Petitioner, versus Philippine Ports Authority and Far Eastern Shipping Co.,
Respondents." 41
Similarly, in G.R. No. 130150, it states
Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken
an appeal from the said decision to this Honorable Court, docketed as G.R.
No. 130068, entitled "Far Eastern Shipping Co. vs. Court of Appeals and
Philippine Ports Authority." 42

We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of
its cases and an almost reflexive propensity to move for countless extensions, as if to test the
patience of the Court, before favoring it with the timely submission of required pleadings.
It must be emphasized that the Court can resolve cases only as fast as the respective parties in
a case file the necessary pleadings. The OSG, by needlessly extending the pendency of these
cases through its numerous motions for extension, came very close to exhausting this Court's
forbearance and has regrettably fallen short of its duties as the People's Tribune.
The OSG is reminded that just like other members of the Bar, the canons under the Code of
Professional Responsibility apply with equal force on lawyers in government service in the
discharge of their official tasks. 43These ethical duties are rendered even more exacting as to
them because, as government counsel, they have the added duty to abide by the policy of the
State to promote a high standard of ethics in public service. 44 Furthermore, it is incumbent upon
the OSG, as part of the government bureaucracy, to perform and discharge its duties with the
highest degree of professionalism, intelligence and skill 45 and to extend prompt, courteous and
adequate service to the public.46
Now, on the merits of the case. After a judicious examination of the records of this case, the
pleadings filed, and the evidence presented by the parties in the two petitions, we find no cogent
reason to reverse and set aside the questioned decision. While not entirely a case of first
impression, we shall discuss the issues seriatim and, correlatively by way of a judicial once-over,
inasmuch as the matters raised in both petitions beg for validation and updating of well-worn
maritime jurisprudence. Thereby, we shall write finis to the endless finger-pointing in this
shipping mishap which has been stretched beyond the limits of judicial tolerance.
The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage
pursuant to Section 8, Article III of Philippine Ports Authority Administrative Order No. 0385, 47 which provides that:
Sec. 8. Compulsor Pilotage Service. For entering a harbor and anchoring
thereat, or passing through rivers or straits within a pilotage district, as well
as docking and undocking at any pier/wharf, or shifting from one berth or
another, every vessel engaged in coastwise and foreign trade shall be under
compulsory pilotage. . . .
In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot
and the master have been specified by the same regulation in this wise:
Sec. 11. Control of vessels and liability for damage. On compulsory
pilotage grounds, the Harbor Pilot providing the service to a vessel shall be
responsible for the damage caused to a vessel or to life and property at
ports due to his negligence or fault. He can only be absolved from liability if
the accident is caused by force majeure or natural calamities provided he
has exercised prudence and extra diligence to prevent or minimize damage.

PALE cases | 11

The Master shall retain overall command of the vessel even on pilotage
grounds whereby he can countermand or overrule the order or command of
the Harbor Pilot on beard. In such event, any damage caused to a vessel or
to life and property at ports by reason of the fault or negligence of the
Master shall be the responsibility and liability of the registered owner of the
vessel concerned without prejudice to recourse against said Master.
Such liability of the owner or Master of the vessel or its pilots shall be
determined by competent authority in appropriate proceedings in the light of
the facts and circumstances of each particular case.
Sec. 32. Duties and responsibilities of the Pilot or Pilots' Association. The
duties and responsibilities of the Harbor Pilot shall be as follows:
xxx xxx xxx
f) a pilot shall be held responsible for the direction of a vessel from the time
he assumes his work as a pilot thereof until he leaves it anchored or berthed
safely; Provided, however, that his responsibility shall cease at the moment
the Master neglects or refuses to carry out hisorder.
Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in
Chapter I thereof for the responsibilities of pilots:
Par. XXXIX. A Pilot shall be held responsible for the direction of a vessel
from the time he assumes control thereof until he leaves it anchored free
from shoal: Provided, That his responsibility shall cease at the moment the
master neglects or refuses to carry out his instructions.
xxx xxx xxx
Par. XLIV. Pilots shall properly and safely secure or anchor vessels under
their control when requested to do so by the master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt.
Gavino solely responsible for the damages cause to the pier. It avers that since the vessel was
under compulsory pilotage at the time with Capt. Gavino in command and having exclusive
control of the vessel during the docking maneuvers, then the latter should be responsible for
damages caused to the pier. 48 It likewise holds the appellate court in error for holding that the
master of the ship, Capt. Kabankov, did not exercise the required diligence demanded by the
circumstances. 49
We start our discussion of the successive issues bearing in mind the evidentiary rule in
American jurisprudence that there is a presumption of fault against a moving vessel that strikes

a stationary object such as a dock or navigational aid. In admiralty, this presumption does more
than merely require the ship to go forward and produce some evidence on the presumptive
matter. The moving vessel must show that it was without fault or that the collision was
occasioned by the fault of the stationary object or was the result of inevitable accident. It has
been held that such vessel must exhaust every reasonable possibility which the circumstances
admit and show that in each, they did all that reasonable care required. 50 In the absence of
sufficient proof in rebuttal, the presumption of fault attaches to a moving vessel which collides
with a fixed object and makes a prima facie case of fault against the vessel. 51 Logic and
experience support this presumption:
The common sense behind the rule makes the burden a heavy one. Such
accidents simply do not occur in the ordinary course of things unless the
vessel has been mismanaged in some way. It is nor sufficient for the
respondent to produce witnesses who testify that as soon as the danger
became apparent everything possible was done to avoid an accident. The
question remains, How then did the collision occur? The answer must be
either that, in spite of the testimony of the witnesses, what was done was
too little or too late or, if not, then the vessel was at fault for being in a
position in which an unavoidable collision would occur. 52
The task, therefore, in these cases is to pinpoint who was negligent the master of
the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of
ports, or in certain waters. In a broad sense, the term "pilot" includes both (1) those whose duty
it is to guide vessels into or out of ports, or in particular waters and (2) those entrusted with the
navigation of vessels on the high seas. 53However, the term "pilot" is more generally understood
as a person taken on board at a particular place for the purpose of conducting a ship through a
river, road or channel, or from a port. 54
Under English and American authorities, generally speaking, the pilot supersedes the master for
the time being in the command and navigation of the ship, and his orders must be obeyed in all
matters connected with her navigation. He becomes the master pro hac vice and should give all
directions as to speed, course, stopping and reversing anchoring, towing and the like. And when
a licensed pilot is employed in a place where pilotage is compulsory, it is his duty to insist on
having effective control of the vessel, or to decline to act as pilot. Under certain systems of
foreign law, the pilot does not take entire charge of the vessel, but is deemed merely the adviser
of the master, who retains command and control of the navigation even in localities where
pilotage is compulsory. 55
It is quite common for states and localities to provide for compulsory pilotage, and safety laws
have been enacted requiring vessels approaching their ports, with certain exceptions, to take on
board pilots duly licensed under local law. The purpose of these laws is to create a body of
seamen thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart, and
thus protect life and property from the dangers of navigation. 56
In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65
prescribes the rules for compulsory pilotage in the covered pilotage districts, among which is the
PALE cases | 12

Manila Pilotage District,

viz.

receive, the care which Congress has taken to secure by rigid and frequent
examinations and renewal of licenses, this very class of skill, we do not
think we fix the standard too high.

PARAGRAPH I. Pilotage for entering a harbor and anchoring thereat, as

well as docking and undocking in any pier or shifting from one berth to
another shall be compulsory, except Government vessels and vessels of
foreign governments entitled to courtesy, and other vessels engaged solely
in river or harbor work, or in a daily ferry service between ports which shall
be exempt from compulsory pilotage provisions of these
regulations: provided, however, that compulsory pilotage shall not apply in
pilotage districts whose optional pilotage is allowed under these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila
International Port. Upon assuming such office as compulsory pilot, Capt. Gavino is held to the
universally accepted high standards of care and diligence required of a pilot, whereby he
assumes to have skill and knowledge in respect to navigation in the particular waters over which
his license extends superior to and more to be trusted than that of the master. 57A pilot 57 should
have a thorough knowledge of general and local regulations and physical conditions affecting
the vessel in his charge and the waters for which he is licensed, such as a particular harbor or
river.
He is not held to the highest possible degree of skill and care, but must have and exercise the
ordinary skill and care demanded by the circumstances, and usually shown by an expert in his
profession. Under extraordinary circumstancesm, a pilot must exercise extraordinary care. 58
In Atlee vs. The Northwesrern Union Packet Company. 59 Mr. Justice Miller spelled out in great
detail the duties of a pilot:
. . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his
personal knowledge of the topography through which he steers his vessel.
In the long course of a thousand miles in one of these rivers, he must be
familiar with the appearance of the shore on each side of the river as he
goes along. Its banks, towns, its landings, its houses and trees, are all
landmarks by which he steers his vessel. The compass is of little use to him.
He must know where the navigable channel is, in its relation to all these
external objects, especially in the night. He must also be familiar with all
dangers that are permanently located in the course of the river, as sandbars, snags, sunken rocks or trees or abandoned vessels orbarges. All this
he must know and remember and avoid. To do this, he must be constantly
informed of the changes in the current of the river, of the sand-bars newly
made,of logs or snags, or other objects newly presented, against which his
vessel might be injured.
xxx xxx xxx
It may be said that this is exacting a very high order of ability in a pilot. But
when we consider the value of the lives and property committed to their
control, for in this they are absolute masters, the high compensation they

Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to
such strict standard of care and diligence required of pilots in the performance of their duties.
Witness this testimony of Capt. Gavino:
Court: You have testified before that the reason why the
vessel bumped the pier was because the anchor was
not released immediately or as soon as you have given
the order. Do you remember having srated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to
understand that if that anchor was released
immediately at the time you gave the order, the incident
would not have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my
part because there was a commotion between the
officers who are in charge of the dropping of the anchor
and the captain. I could not understand their language,
it was in Russian, so I presumed the anchor was not
dropped on time.
Q So, you are not sure whether it was really dropped on
time or not?
A I am not sure, your Honor.
xxx xxx xxx
Q You are not even sure what could have caused the
incident. What factor could have caused the incident?
A Well, in this case now, because either the anchor was
not dropped on time or the anchor did not hold, that
was the cause of the incident, your Honor. 60

PALE cases | 13

It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for
the possibly injurious consequences his commands as pilot may have. Prudence required that
he, as pilot, should have made sure that his directions were promptly and strictly followed. As
correctly noted by the trial court
Moreover, assuming that he did indeed give the command to drop the
anchor on time, as pilot he should have seen to it that the order was carried
out, and he could have done this in a number of ways, one of which was to
inspect the bow of the vessel where the anchor mechanism was installed.
Of course, Captain Gavino makes reference to a commotion among the
crew members which supposedly caused the delay in the execution of the
command. This account was reflected in the pilot's report prepared four
hours later, but Capt. Kavankov, while not admitting whether or not such a
commotion occurred, maintained that the command to drop anchor was
followed "immediately and precisely." Hence, the Court cannot give much
weight or consideration to this portion of Gavino's testimony." 61
An act may be negligent if it is done without the competence that a reasonable person in the
position of the actor would recognize as necessary to prevent it from creating an unreasonable
risk of harm to another. 62 Those who undertake any work calling for special skills are required
not only to exercise reasonable care in what they do but also possess a standard minimum of
special knowledge and ability. 63
Every man who offers his services to another, and is employed, assumes to exercise in the
employment such skills he possesses, with a reasonable degree of diligence. In all these
employments where peculiar skill is requisite, if one offers his services he is understood as
holding himself out to the public as possessing the degree of skill commonly possessed by
others in the same employment, and if his pretensions are unfounded he commits a species of
fraud on every man who employs him in reliance on his public profession. 64
Furthermore, there is an obligation on all persons to take the care which, under ordinary
circumstances of the case, a reasonable and prudent man would take, and the omission of that
care constitutes negligence. 65Generally, the degree of care required is graduated according to
the danger a person or property attendant upon the activity which the actor pursues or the
instrumentality which he uses. The greater the danger the greater the degree of care required.
What is ordinary under extraordinary of conditions is dictated by those conditions; extraordinary
risk demands extraordinary care. Similarly, the more imminent the danger, the higher the degree
of care. 66
We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino
was indeed negligent in the performance of his duties:

to reduce the momentum of the vessel. In point of fact, the vessel continued
travelling towards the pier at the same speed. Gavino failed to react, At 8:32
o'clock, the two (2) tugboats began to push the stern part of the vessel from
the port side bur the momentum of the vessel was not contained. Still,
Gavino did not react. He did not even order the other anchor and two (2)
more shackles dropped to arrest the momentum of the vessel. Neither did
he order full-astern. It was only at 8:34 o'clock, or four (4) minutes, after the
anchor was dropped that Gavino reacted. But his reaction was even
(haphazard) because instead of arresting fully the momentum of the vessel
with the help of the tugboats, Gavino ordered merely "half-astern". It took
Gavino another minute to order a "full-astern". By then, it was too late. The
vessel's momentum could no longer be arrested and, barely a minute
thereafter, the bow of the vessel hit the apron of the pier. Patently, Gavino
miscalculated. He failed to react and undertake adequate measures to
arrest fully the momentum of the vessel after the anchor failed to claw to the
seabed. When he reacted, the same was even (haphazard). Gavino failed
to reckon the bulk of the vessel, its size and its cargo. He erroneously
believed that only one (1) anchor would suffice and even when the anchor
failed to claw into the seabed or against a hard object in the seabed, Gavino
failed to order the other anchor dropped immediately. His claim that the
anchor was dropped when the vessel was only 1,000 feet from the pier is
but a belated attempt to extricate himself from the quagmire of his own
insouciance and negligence. In sum, then, Appellants' claim that the incident
was caused by "force majeure" is barren of factual basis.
xxx xxx xxx
The harbor pilots are especially trained for this job. In the Philippines, one
may not be a harbor pilot unless he passed the required examination and
training conducted then by the Bureau of Custom, under Customs
Administrative Order No. 15-65, now under the Philippine Ports Authority
under PPA Administrative Order 63-85, Paragraph XXXIX of the Customs
Administrative Order No. 15-65 provides that "the pilot shall be held
responsible for the direction of the vessel from the time he assumes control
thereof, until he leaves it anchored free from shoal: Provided, that his
responsibility shall cease at the.moment the master neglects or refuse(s) to
carry out his instructions." The overall direction regarding the procedure for
docking and undocking the vessel emanates from the harbor pilot. In the
present recourse, Gavino failed to live up to his responsibilities and exercise
reasonable care or that degree of care required by the exigencies of the
occasion. Failure on his part to exercise the degree of care demanded by
the circumstances is negligence (Reese versus Philadelphia & RR Co. 239
US 363, 60 L ed. 384, 57 Am Jur, 2d page 418). 67

xxx xxx xxx

This affirms the findings of the trial court regarding Capt. Gavino's negligence:
. . . As can be gleaned from the logbook, Gavino ordered the left anchor and
two (2) shackles dropped at 8:30 o'clock in the morning. He ordered the
engines of the vessel stopped at 8:31 o'clock. By then,Gavino must have
realized that the anchor did not hit a hard object and was not clawed so as

This discussion should not however, divert the court from the fact that
negligence in manuevering the vessel must be attributed to Capt. Senen
Gavino. He was an experienced pilot and by this time should have long
PALE cases | 14

familiarized himself with the depth of the port and the distance he could
keep between the vessel and port in order to berth safely. 68

xxx xxx xxx

Atty. Del Rosario (to the witness)

The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no less
responsible for the allision. His unconcerned lethargy as master of the ship in the face of
troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a pilot is in sole command of the ship 69 and
supersedes the master for the time being in the command and navigation of a ship and that he
becomes master pro hac vice of a vessel piloted by him, 70 there is overwhelming authority to the
effect that the master does not surrender his vessel to the pilot and the pilot is not the master.
The master is still in command of the vessel notwithstanding the presence of a pilot. There are
occasions when the master may and should interfere and even displace the pilot, as when the
pilot is obviously incompetent or intoxicated and the circumstances may require the master to
displace a compulsory pilot because of incompetency or physical incapacity. If, however, the
master does nor observe that a compulsory pilot is incompetent or physically incapacitated, the
master is justified in relying on the pilot, but not blindly. 71
The master is not wholly absolved from his duties while a pilot is on board his vessel, and may
advise with or offer suggestions to him. He is still in command of the vessel, except so far as her
navigation is concerned, and must cause the ordinary work of the vessel to be properly carried
on and the usual precaution taken. Thus, in particular, he is bound to see that there is sufficient
watch on deck, and that the men are attentive to their duties, also that engines are stopped,
towlines cast off, and the anchors clear and ready to go at the pilot's order. 72
A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge
of his duties as master of the ship, leaving the entire docking procedure up to the pilot, instead
of maintaining watchful vigilance over this risky maneuver:
Q Will you please tell us whether you have the right to
intervene in docking of your ship in the harbor?
A No sir, I have no right to intervene in time of docking,
only in case there is imminent danger to the vessel and
to the pier.

Q Mr. Witness, what happened, if any, or was there

anything unusual that happened during the docking?
A Yes sir, our ship touched ihe pier and the pier was
damaged.
Court (to the witness)
Q When you said touched the pier, are you leading the
court to understand that your ship bumped the pier?
A I believe that my vessel only touched the pier but the
impact was very weak.
Q Do you know whether the pier was damaged as a
result of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxx xxx xxx
Q Being most concerned with the safety of your vessel,
in the maneuvering of your vessel to the port, did you
observe anything irregular in the maneuvering by Capt.
Gavino at the time he was trying to cause the vessel to
be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:

Q Did you ever intervene during the time that your ship
was being docked by Capt. Gavino?
A No sir, I did not intervene at the time when the pilot
was docking my ship.
Q Up to the time it was actually docked at the pier, is
that correct?

Q Not the actuation that conform to the safety

maneuver of the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court
to understand that there was nothing irregular in the
docking of the ship?

A No sir, I did not intervene up to the very moment

when the vessel was docked.
PALE cases | 15

A Yes sir, during the initial period of the docking, there

was nothing unusual that happened.
Q What about in the last portion of the docking of the
ship, was there anything unusual or abnormal that
happened?

A Yes sir, I knew that.

Q If you knew that the shackles were not enough to
hold the ship, did you not make any protest to the pilot?
A No sir, after the incident, that was my assumption.

A None Your Honor, I believe that Capt. Gavino thought

that the anchor could keep or hold the vessel.

Q Did you come to know later whether that presumption

is correct?

Q You want us to understand, Mr. Witness, that the

dropping of the anchor of the vessel was nor timely?

A I still don't know the ground in the harbor or the

depths.

A I don't know the depth of this port but I think, if the

anchor was dropped earlier and with more shackles,
there could not have been an incident.

Q So from the beginning, you were not competent

whether the 2 shackles were also dropped to hold the
ship?

Q So you could not precisely tell the court that the

dropping of the anchor was timery because you are not
well aware of the seabed, is that correct?

A No sir, at the beginning, I did not doubt it because I

believe Capt. Gavino to be an experienced pilot and he
should be more aware as to the depths of the harbor
and the ground and I was confident in his actions.

A Yes sir, that is right.

xxx xxx xxx
xxx xxx xxx
Solicitor Abad (to the witness)
Q Alright, Capt. Kavankov, did you come to know later
whether the anchor held its ground so much so that the
vessel could not travel?
A It is difficult for me to say definitely. I believe that the
anchor did not hold the ship.
Q You mean you don't know whether the anchor blades
stuck to the ground to stop the ship from further
moving?
A Yes sir, it is possible.

Q Now, you were standing with the pilot on the bridge of

the vessel before the inicident happened, were you
not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see
from that point of view?
A That is right.

Q What is possible?

Q Whatever the piler can read from the panel of the

bridge, you also could read, is that correct?

A I think, the 2 shackles were not enough to hold the

vessel.

A What is the meaning of panel?

Q Did you know that the 2 shackles were dropped?

Q All indications necessary for men on the bridge to be

informed of the movements of the ship?
PALE cases | 16

A That is right.
Q And whatever sound the captain . . . Capt. Gavino
would hear from the bridge, you could also hear?

A I did nor consider the situation as having an imminent

danger. I believed that the vessel will dock alongside
the pier.

A That is right.

Q You want us to understand that you did not see an

imminent danger to your ship, is that what you mean?

Q Now, you said that when the command to lower the

anchor was given, it was obeyed, is that right?

A Yes sir, up to the very last moment, I believed that

there was no imminent danger.

A This command was executed by the third mate and

boatswain.

Q Because of that, did you ever intervene in the

command of the pilot?

Court (to the witness)

A Yes sir, I did not intervene because I believed that the

command of the pilot to be correct.

Q Mr. Witness, earlier in today's hearing, you said that

you did not intervene with the duties of the pilot and
that, in your opinion, you can only intervene if the ship
is placed in imminent danger, is that correct?

Solicitor Abad (to the witness)

Q As a captain of M/V Pavlodar, you consider docking
maneuvers a serious matter, is it not?

A That is right, I did say that.

A Yes sir, that is right.
Q In your observation before the incident actually
happened, did you observe whether or not the ship,
before the actual incident, the ship was placed in
imminent danger?

Q Since it affects not only the safety of the port or pier,

but also the safety of the vessel and the cargo, is it not?
A That is right.

A No sir, I did not observe.

Q By that answer, are you leading the court to
understand that because you did not intervene and
because you believed that it was your duty to intervene
when the vessel is placed in imminent danger to which
you did not observe any imminent danger thereof, you
have not intervened in any manner to the command of
the pilot?
A That is right, sir.
xxx xxx xxx
Q Assuminp that you disagreed with the pilot regarding
the step being taken by the pilot in maneuvering the
vessel, whose command will prevail, in case of
imminent danger to the vessel?

Q So that, I assume that you were watching Capt.

Gavino very closely at the time he was making his
commands?
A I was close to him, I was hearing his command and
being executed.
Q And that you were also alert for any possible
mistakes he might commit in the maneuvering of the
vessel?
A Yes sir, that is right.
Q But at no time during the maneuver did you issue
order contrary to the orders Capt. Gavino made?
A No sir.
PALE cases | 17

Q So that you were in full accord with all of Capt.

Gavino's orders?

Q And you were alerted that somebody was wrong?

A Yes sir, I was alerted.

A Yes sir.
Q Because, otherwise, you would have issued order
that would supersede his own order?
A In that case, I should t,ke him away from his
command or remove the command from him.
Court (to the witness)
Q You were in full accord with the steps being taken by
Capt. Gavino because you relied on his knowledge, on
his familiarity of the seabed and shoals and other
surroundings or conditions under the sea, is that
correct?
A Yes sir, that is right.

Q And this alert vou assumed was the ordinary

alertness that you have for normal docking?
A Yes sir, I mean that it was usual condition of any man
in time of docking to be alert.
Q And that is the same alertness when the anchor did
not hold onto the ground, is that correct?
A Yes sir, me and Capt. Gavino (thought) that the
anchor will hold the ground.
Q Since, as you said that you agreed all the while with
the orders of Capt. Gavino, you also therefore agreed
with him in his failure to take necessary precaution
against the eventuality that the anchor will not hold as
expected?

xxx xxx xxx

Atty. Del Rosario:
Solicitor Abad (to the witness)
May I ask that the question . . .
Q And so after the anchors were ordered dropped and
they did not take hold of the seabed, you were alerted
that there was danger already on hand?

Solicitor Abad:
Never mind, I will reform the question.

A No sir, there was no imminent danger to the vessel.

xxx xxx xxx
Q Do you mean to tell us that even if the anchor was
supposed to take hold of the bottom and it did not, there
was no danger to the ship?
A Yes sir, because the anchor dragged on the ground
later.
Q And after a few moments when the anchor should
have taken hold the seabed bur not done (sic), as you
expected, you already were alerted that there was
danger to the ship, is that correct?

Solicitor Abad (to the witness)

Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did
not hold the ground as expected?
A Yes sir, that is my opinion. 73

A Yes sir, I was alerted but there was no danger.

PALE cases | 18

Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the
situation:
Q Now, after the anchor was dropped, was there any
point in time that you felt that the vessel was in
imminent danger.
A No, at that time, the vessel was not in imminent,
danger, sir. 74
This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt.
Gavino's anxious assessment of the situation:

Atty. Catris:
In fact, the Master of the vessel testified here that he
was all along in conformity with the orders you, gave to
him, and, as matter of fact, as he said, he obeyed all
your orders. Can you tell, if in the course of giving such
normal orders for the saf(e) docking of the MV
Pavlodar, do you remember of any instance that the
Master of the vessel did not obey your command for the
safety docking of the MV Pavlodar?
Atty. del Rosario:

Q When a pilot is on board a vessel, it is the piler's

command which should be followed at that moment
until the vessel is, or goes to port or reaches port?

Already answered, he already said yes sir.

A Yes, your Honor, but it does not take away from the
Captain his prerogative to countermand the pilot.

Yes, he has just answered yes sir to the Court that

there was no disagreement insofar as the bringing of
the vessel safely to the port.

Court:

Q In what way?
Atty. Catris:
A In any case, which he thinks the pilot is not
maneuvering correctly, the Captain always has the
prerogative to countermand the pilot's order.
Q But insofar as competence, efficiency and functional
knowledee of the seabed which are vital or decisive in
the safety (sic) bringing of a vessel to the port, he is not
competent?
A Yes, your Honor. That is why they hire a pilot in an
advisory capacity, but still, the safety of the vessel
rest(s) upon the Captain, the Master of the vessel.
Q In this case, there was not a disagreement between
you and the Captain of the vessel in the bringing of the
vessel to port?

But in this instance of docking of the MV Pavlodar, do

you remember of a time during the course of the
docking that the MV Pavlodar was in imminent danger
of bumping the pier?
A When we were about more than one thousand meters
from the pier, I think, the anchor was not holding, so I
immediately ordered to push the bow at a fourth
quarter, at the back of the vessel in order to swing the
bow away from the pier and at the same time, I ordered
for a full astern of the engine. 75
These conflicting reactions can only imply, at the very least, unmindful disregard or,
worse, neglectful relinquishment of duty by the shipmaster, tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:

A No, your Honor.

Court:
May proceed.

For, while the pilot Gavino may indeed have been charged with the task of
docking the vessel in the berthing space, it is undisputed that the master of
the vessel had the corresponding duty to countermand any of the orders
made by the pilot, and even maneuver the vessel himself, in case of
imminent danger to the vessel and the port.
PALE cases | 19

In fact, in his testimony, Capt. Kavankov admitted that all throughour the
man(eu)vering procedures he did not notice anything was going wrong, and
even observed that the order given to drop the anchor was done at the
proper time. He even ventured the opinion that the accident occurred
because the anchor failed to take hold but that this did not alarm him
because.there was still time to drop a second anchor.

hitting the pier simply because he relied on the competence and plan of
Gavino. While the "full-astern'' maneuver momentarily arrested the
momentum of the vessel, it was, by then, too late. All along, Kavankov stood
supinely beside Gavino, doing nothing but relay the commands of Gavino.
Inscrutably, then, Kavankov was negligent.
xxx xxx xxx

Under normal circumstances, the abovementioned facts would have caused

the master of a vessel to take charge of the situation and see to the
man(eu)vering of the vessel himself. Instead, Capt. Kavankov chose to rely
blindly upon his pilot, who by this time was proven ill-equipped to cope with
the situation.
xxx xxx xxx
It is apparent that Gavino was negligent but Far Eastern's employee Capt.
Kavankov was no lesss responsible for as master of the vessel he stood by
the pilot during the man(eu)vering procedures and was privy to every move
the latter made, as well as the vessel's response to each of the commands.
His choice to rely blindly upon the pilot's skills, to the point that despite
being appraised of a notice of alert he continued to relinquish control of the
vessel to Gavino, shows indubitably that he was not performing his duties
with the diligence required of him and therefore may be charged with
negligence along with defend;int Gavino. 76
As correctly affirmed by the Court of Appeals
We are in full accord with the findings and disquisitions of the Court a quo.
In the present recourse, Captain Viktor Kavankov had been a mariner for
thirty-two years before the incident. When Gavino was (in) the command of
the vessel, Kavankov was beside Gavino, relaying the commands or orders
of Gavino to the crewmembers-officers of the vessel concerned. He was
thus fully aware of the docking maneuvers and procedure Gavino undertook
to dock the vessel. Irrefragably, Kavankov was fully aware of the bulk and
size of the vessel and its cargo as well as the weight of the vessel.
Kavankov categorically admitted that, when the anchor and two (2) shackles
were dropped to the sea floor, the claws of the anchor did not hitch on to
any hard object in the seabed. The momentum of the vessel was not
arrested. The use of the two (2) tugboats was insufficient. The momentum
of the vessel, although a little bit arrested, continued (sic) the vessel going
straightforward with its bow towards the port (Exhibit "A-1 ). There was thus
a need for the vessel to move "full-astern" and to drop the other anchor with
another shackle or two (2), for the vessel to avoid hitting the pier. Kavankov
refused to act even as Gavino failed to act. Even as Gavino gave mere
"half-astern" order, Kavankov supinely stood by. The vessel was already
about twenty (20) meters away from the pier when Gavino gave the "fullastern" order. Even then, Kavankov did nothing to prevent the vessel from

The stark incompetence of Kavankov is competent evidence to prove the

unseaworthiness of the vessel. It has been held that the incompetence of
the navigator, the master of the vessel or its crew makes the vessel
unseaworthy (Tug Ocean Prince versus United States of America, 584 F.
2nd, page 1151). Hence, the Appellant FESC is likewise liable for the
damage sustained by the Appellee. 77
We find strong and well-reasoned support in time-tested American maritime jurisprudence, on
which much of our laws and jurisprudence on the matter are based, for the conclusions of the
Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in
The Steamship China vs. Walsh, 78 that it is the duty of the master to interfere in cases of the
pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in
all cases of great necessity. The master has the same power to displace the pilot that he has to
remove any subordinate officer of the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that:
Nor are rye satisfied with the conduct of the master in leaving the pilot in
sole charge of the vessel. While the pilot doubtless supersedes the master
for the time being in the command and navigation of the ship, and his orders
must be obeyed in all matters connected with her navigation, the master is
not wholly absolved from his duties while the pilot is on board, and may
advise with him, and even displace him in case he is intoxicated or
manifestly incompetent. He is still in command of the vessel, except so far
as her navigation is concerned, and bound to see that there is a sufficient
watch on deck, and that the men are attentive to their duties.
. . . (N)orwithstanding the pilot has charge, it is the duty of the master to
prevent accident, and not to abandon the vessel entirely to the pilot; but that
there are certain duties he has to discharge (notwithstanding there is a pilot
on board) for the benefit of the owners. . . . that in well conducted ships the
master does not regard the presence of a duly licensed pilot in compulsory
pilot waters as freeing him from every, obligation to attend to the safety of
the vessel; but that, while the master sees that his officers and crew duly
attend to the pilot's orders, he himself is bound to keep a vigilant eye on the
navigation of the vessel, and, when exceptional circumstances exist, not
only to urge upon the pilot to use every precaution, but to insist upon such
being taken. 79 (Italics for emphasis.)
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In Jure vs. United Fruit Co., 80 which, like the present petitions, involved compulsory pilotage,
with a similar scenario where at and prior to the time of injury, the vessel was in the charge of a
pilot with the master on the bridge of the vessel beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in complete abeyance while a
pilot, who is required by law to be accepted, is in discharge of his
functions. . . . It is the duty of the master to interfere in cases of the pilot's
intoxication or manifest incapacity, in cases of danger which he does not
foresee, and in all cases of great necessity. The master has the same power
to displace the pilot that he has to remove any subordinate officer of the
vessel. He may exercise it, or not, according to his discretion. There was
evidence to support findings that piaintiff's injury was due to the negligent
operation of the Atenas, and that the master of that vessel was negligent in
failing to take action to avoid endangering a vessel situated as the City of
Canton was and persons or property thereon.
A phase of the evidence furnished support for the inferences . . . that he
negligently failed to suggest to the pilot the danger which was disclosed,
and means of avoiding such danger; and that the master's negligence in
failing to give timelt admonition to the pilot proximately contributed to the
injury complained of. We are of opinion that the evidence mentioned tended
to prove conduct of the pilot, known to the master, giving rise to a case of
danger or great necessity, calling for the intervention of the master. A
master of a vessel is not without fault in acquiescing in canduct of a pilot
which involves apparent and avoidable danger, whether such danger is to
the vessel upon which the pilot is, or to another vessel, or persons or
property thereon or on shore. (Emphasis ours.)
Still in another case involving a nearly identical setting, the captain of a vessel alongside the
compulsory pilot was deemed to be negligent, since, in the words of the court, "he was in a
position to exercise his superior authority if he had deemed the speed excessive on the
occasion in question. I think it was clearly negligent of him not to have recognized the danger to
any craft moored at Gravell Dock and that he should have directed the pilot to reduce his speed
as required by the local governmental regulations. His failure amounted to negligence and
renders the respondent liable." 81 (Emphasis supplied.) Though a compulsory pilot might be
regarded as an independent contractor, he is at all times subject to the ultimate control of the
ship's master. 82
In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him
to navigate it, if the master observes that the pilot is incompetent or physically incapable, then it
is the dury of the master to refuse to permit the pilot to act. But if no such reasons are present,
then the master is justified in relying upon the pilot, but not blindly. Under the circumstances of
this case, if a situation arose where the master, exercising that reasonable vigilance which the
master of a ship should exercise, observed, or should have observed, that the pilot was so
navigating the vessel that she was going, or was likely to go, into danger, and there was in the
exercise of reasonable care and vigilance an opportunity for the master to intervene so as to
save the ship from danger, the master should have acted accordingly. 83 The master of a vessel
must exercise a degree of vigilance commensurate with the circumstances. 84

Inasmuch as the matter of negligence is a question of fact, 85 we defer to the findings of the trial
court, especially as this is affirmed by the Court of Appeals. 86 But even beyond that, our own
evaluation is that Capt. Kabankov's shared liability is due mainly to the fact that he failed to act
when the perilous situation should have spurred him into quick and decisive action as master of
the ship. In the face of imminent or actual danger, he did not have to wait for the happenstance
to occur before countermanding or overruling the pilot. By his own admission, Capt. Kabankov
concurred with Capt. Gavino's decisions, and this is precisely the reason why he decided not to
countermand any of the latter's orders. Inasmuch as both lower courts found Capt. Gavino
negligent, by expressing full agreement therewith Capt. Kabankov was just as negligent as Capt.
Gavino.
In general, a pilot is personally liable for damages caused by his own negligence or default to
the owners of the vessel, and to third parties for damages sustained in a collision. Such
negligence of the pilot in the performance of duty constitutes a maritime tort. 87 At common law, a
shipowner is not liable for injuries inflicted exclusively by the negligence of a pilot accepted by a
vessel compulsorily. 88 The exemption from liability for such negligence shall apply if the pilot is
actually in charge and solely in fault. Since, a pilot is responsible only for his own personal
negligence, he cannot be held accountable for damages proximately caused by the default of
others, 89 or, if there be anything which concurred with the fault of the pilot in producing the
accident, the vessel master and owners are liable.
Since the colliding vessel is prima facie responsible, the burden of proof is upon the party
claiming benefit of the exemption from liability. It must be shown affirmatively that the pilot was at
fault, and that there was no fault on the part of the officers or crew, which might have been
conducive to the damage. The fact that the law compelled the master to take the pilot does not
exonerate the vessel from liability. The parties who suffer are entitled to have their remedy
against the vessel that occasioned the damage, and are not under necessity to look to the pilot
from whom redress is not always had for compensation. The owners of the vessel are
responsible to the injured party for the acts of the pilot, and they must be left to recover the
amount as well as they can against him. It cannot be maintained that the circumstance of having
a pilot on board, and acting in conformity to his directions operate as a discharge of
responsibility of the owners. 90 Except insofar as their liability is limited or exempted by statute,
the vessel or her owner are liable for all damages caused by the negligence or other wrongs of
the owners or those in charge of the vessel. Where the pilot of a vessel is not a compulsory one
in the sense that the owner or master of the vessel are bound to accept him, but is employed
voluntarily, the owners of the vessel are, all the more, liable for his negligent act. 91
In the United States, the owners of a vessel are not personally liable for the negligent acts of a
compulsory pilot, but by admiralty law, the fault or negligence of a compulsory pilot is imputable
to the vessel and it may be held liable therefor in rem. Where, however, by the provisions of the
statute the pilot is compulsory only in the sense that his fee must be paid, and is not in
compulsory charge of the vessel, there is no exemption from liability. Even though the pilot is
compulsory, if his negligence was not the sole cause of the injury, but the negligence of the
master or crew contributed thereto, the owners are liable. 92 But the liability of the ship in
rem does not release the pilot from the consequences of his own negligence. 93 The rationale for
this rule is that the master is not entirely absolved of responsibility with respect to navigation
when a compulsory pilot is in charge. 94

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By way of validation and in light of the aforecited guidepost rulings in American maritime cases,
we declare that our rulings during the early years of this century in City of Manila vs.
Gambe, 95 China Navigation Co., Ltd. vs. Vidal,96 and Yap Tica & Co. vs. Anderson, et al. 97 have
withstood the proverbial test of time and remain good and relevant case law to this day.

it may appear that one of them was more culpable, and that the duty owed by them to the
injured person was not the same. No actor's negligence ceases to be a proximate cause merely
because it does not exceed the negligence of other actors. Each wrongdoer is responsible for
the entire result and is liable as though his acts were the sole cause of the injury. 100

City of Manila stands for the doctrine that the pilot who was in command and complete control of
a vessel, and not the owners, must be held responsible for an accident which was solely the
result of the mistake of the pilot in not giving proper orders, and which did not result from the
failure of the owners to equip the vessel with the most modern and improved machinery.
In China Navigation Co., the pilot deviated from the ordinary and safe course, without heeding
the warnings of the ship captain. It was this careless deviation that caused the vessel to collide
with a pinnacle rock which, though uncharted, was known to pilots and local navigators.
Obviously, the captain was blameless. It was the negligence of the pilot alone which was the
proximate cause of the collision. The Court could not but then rule that

There is no contribution between joint tortfeasors whose liability is solidary since both of them
are liable for the total damage. Where the concurrent or successive negligent acts or omissions
of two or more persons, although acting independently, are in combination the direct and
proximate cause of a single injury to a third person, it is impossible to determine in what
proportion each contributed to the injury and either of them is responsible for the whole injury.
Where their concurring negligence resulted in injury or damage to a third party, they become
joint tortfeasors and are solidarily liable for the resulting damage under Article 2194 101 of the
Civil Code. 102

The pilot in the case at bar having deviated from the usual and ordinary
course followed by navigators in passing through the strait in question,
without a substantial reason, was guilty of negligence, and that negligence
having been the proximate cause of the damages, he is liable for such
damages as usually and naturally flow therefrom. . . .
. . . (T)he defendant should have known of the existence and location of the
rock upon which the vessel struck while under his control and management.
....
Consistent with the pronouncements in these two earlier cases, but on a slightly different tack,
the Court in Yap Tico & Co. exonerated the pilot from liability for the accident where the orders of
the pilot in the handling of the ship were disregarded by the officers and crew of the ship.
According to the Court, a pilot is ". . . responsible for a full knowledge of the channel and the
navigation only so far as he can accomplish it through the officers and crew of the ship, and I
don't see chat he can be held responsible for damage when the evidence shows, as it does in
this case, that the officers and crew of the ship failed to obey his orders." Nonetheless, it is
possible for a compulsory pilot and the master of the vessel to be concurrently negligent and
thus share the blame for the resulting damage as joint tortfeasors, 98 but only under the
circumstances obtaining in and demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order to render a person liable need not be
the sole cause of an injury. It is sufficient that his negligence, concurring with one or more
efficient causes other than piaintiff's, is the proximate cause of the injury. Accordingly, where
several causes combine to produce injuries, a person is not relieved from liability because he is
responsible for only one of them, it being sufficient that the negligence of the person charged
with injury is an efficient cause without which the injury would not have resulted to as great an
extent, and that such cause is not attributable to the person injured. It is no defense to one of the
concurrent tortfeasors that the injury would not have resulted from his negligence alone, without
the negligence or wrongful acts of the other concurrent rortfeasor. 99 Where several causes
producing an injury are concurrent and each is an efficient cause without which the injury would
not have happened, the injury may be attributed to all or any of the causes and recovery may be
had against any or all of the responsible persons although under the circumstances of the case,

As for the amount of damages awarded by the trial court, we find the same to be reasonable.
The testimony of Mr. Pascual Barral, witness for PPA, on cross and redirect examination,
appears to be grounded on practical considerations:
Q So that the cost of the two additional piles as well as
the (two) square meters is already included in this
P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not
represent only for the six piles that was damaged as
well as the corresponding two piles.
A The area was corresponding, was increased by
almost two in the actual payment. That was why the
contract was decreased, the real amount was
P1,124,627.40 and the final one is P1,300,999.77.
Q Yes, but that P1,300,999.77 included the additional
two new posts.
A It was increased.
PALE cases | 22

Q Why was it increased?

A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took
place in 1980 and you started the repair and
reconstruction in 1982, that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing
damage in 1980 was aggravated for the 2 year period
that the damage portion was not repaired?
A I don't think so because that area was at once
marked and no vehicles can park, it was closed.
Q Even if or even natural elements cannot affect the
damage?
A Cannot, sir.
xxx xxx xxx
Q You said in the cross-examination that there were six
piles damaged by the accident, but that in the
reconstruction of the pier, PPA drove and constructed 8
piles. Will you explain to us why there was change in
the number of piles from the original number?
A In piers where the piles are withdrawn or pulled out,
you cannot re-drive or drive piles at the same point. You
have to redesign the driving of the piles. We cannot
drive the piles at the same point where the piles are
broken or damaged or pulled out. We have to redesign,
and you will note that in the reconstruction, we
redesigned such that it necessitated 8 plies.
Q Why not, why could you not drive the same number
of piles and on the same spot?
A The original location was already disturbed. We
cannot get required bearing capacity. The area is
already disturbed.

Q Nonetheless, if you drove the original number of

piles, six, on different places, would not that have
sustained the same load?
A It will not suffice, sir. 103
We quote the findings of the lower court with approval.
With regards to the amount of damages that is to be awarded to plaintiff, the
Court finds that the amount of P1,053,300.00 is justified. Firstly, the doctrine
of res ipsa loquitur best expounded upon in the landmark case of Republic
vs. Luzon Stevedoring Corp. (21 SCRA 279) establishes the presumption
that in the ordinary course of events the ramming of the dock would not
have occurred if proper care was used.
Secondly, the various estimates and plans justify the cost of the port
construction price. The new structure constructed not only replaced the
damaged one but was built of stronger materials to forestall the possibility of
any similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an award of
P1,053,300.00 which represents actual damages caused by the damage to
Berth 4 of the Manila International Port. Co-defendants Far Eastern
Shipping, Capt. Senen Gavino and Manila Pilots Association are solidariiy
liable to pay this amount to plaintiff. 104
The Solicitor General rightly commented that the adjudicated amount of damages
represents the proportional cost of repair and rehabilitation of the damaged section of
the pier. 105
Except insofar as their liability is limited or exempted by statute, the vessel or her owners are
liable for all damages caused by the negligence or other wrongs of the owners or those in
charge of the vessel. As a general rule, the owners or those in possession and control of a
vessel and the vessel are liable for all natural and proximate damages caused to persons or
property by reason of her negligent management or navigation. 106
FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not
only because it appears to be a mere afterthought, being tardily raised only in this petition, but
also because there is no allegation or evidence on record about Berth No. 4 being unsafe and
unreliable, although perhaps it is a modest pier by international standards. There was, therefore,
no error on the part of the Court of Appeals in dismissing FESC's counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and
solidarily liable with its member pilot. Capt. Gavino, in the absence of employer-employee
PALE cases | 23

relationship and in applying Customs Administrative Order No. 15-65, as basis for the adjudged
solidary liability of MPA and Capt. Gavino.
The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:
PAR. XXVII. In all pilotage districts where pilotage is compulsory, there
shall be created and maintained by the pilots or pilots' association, in the
manner hereinafter prescribed, a reserve fund equal to P1,000.00 for each
pilot thereof for the purpose of paying claims for damages to vessels or
property caused through acts or omissions of its members while rendered in
compulsory pilotage service. In Manila, the reserve fund shall be P2,000.00
for each pilot.
PAR. XXVIII. A pilots' association shall not be liable under these
regulations for damage to any vessel, or other property, resulting from acts
of a member of an association in the actual performance of his duty for a
greater amount than seventy-five per centum (75%) of its prescribed
reserve fund; it being understood that if the association is held liable for an
amount greater than the amount above-stated, the excess shall be paid by
the personal funds of the member concerned.
PAR. XXXI. If a payment is made from the reserve fund of an association
on account of damages caused by a member thereof, and he shall have
been found at fault, such member shall reimburse the association in the
amount so paid as soon as practicable; and for this purpose, not less than
twenty-five per centum of his dividends shall be retained each month until
the full amount has been returned to the reserve fund.
PAR. XXXIV. Nothing in these regulations shall relieve any pilots'
association or members thereof, individually or collectively, from civil
responsibility for damages to life or property resulting from the acts of
members in the performance of their duties.
Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timery
amended this applicable maritime regulation, state:
Art. IV
Sec. 17. Pilots' Association The Pilots in a Pilotage District shall organize
themselves into a Pilots' Association or firm, the members of which shall
promulgate their own By-Laws not in conflict with the rules and regulations
promulgated by the Authority. These By-Laws shall be submitted not later
than one (1) month after the organization of the Pilots' Association for
approval by the General Manager of the Authority. Subsequent amendments
thereto shall likewise be submitted for approval.
Sec. 25. Indemnity Insurance and Reserve Fund

a) Each Pilots' Association shall collectively insure its membership at the rate of P50,000.00
each member to cover in whole or in part any liability arising from any accident resulting in
damage to vessel(s), port facilities and other properties and/or injury to persons or death which
any member may have caused in the course of his performance of pilotage duties. . . . .
b) The Pilotage Association shall likewise set up and maintain a reserve fund which shall answer
for any part of the liability referred to in the immediately preceding paragraph which is left
unsatisfied by the insurance proceeds, in the following manner:

1) Each pilot in the Association shall contribute from his own account an amount of P4,000.00
(P6,000.00 in the Manila Pilotage District) to the reserve fund. This fund shall not be considered
part of the capital of the Association nor charged as an expense thereof.
2) Seventy-five percent (75 %) of the reserve fund shall be set aside for use in the payment of
damages referred to above incurred in the actual performance of pilots' duties and the excess
shall be paid from the personal funds of the member concerned.
xxx xxx xxx
5) If payment is made from the reserve fund of an Association on account of damage caused by
a member thereof who is found at fault, he shall reimburse the Association in the amount so paid
as soon as practicable; and for this purpose, not less than twenty-five percentum (25 %) of his
dividend shall be retained each month until the full amount has been returned to the reserve
fund. Thereafter, the pilot involved shall be entitled to his full dividend.
6) When the reimbursement has been completed as prescribed in the preceding paragraph, the
ten percentum (10%) and the interest withheld from the shares of the other pilots in accordance
with paragraph (4) hereof shall be returned to them.
c) Liability of Pilots' Association Nothing in these regulations shall relieve any Pilots'
Association or members thereof, individually or collectively, from any civil, administrative and/or
criminal responsibility for damages to life or property resulting from the individual acts of its
members as well as those of the Association's employees and crew in the performance of their
duties.
The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of
FESC, MPA and Capt. Gavino, correctly based MPA' s liability not on the concept of employeremployee relationship between Capt. Gavino and itself, but on the provisions of Customs
Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and disquisitions of
the Court a quo, the Appellant Gavino was not and has never been an
employee of the MPA but was only a member thereof. The Court a quo, it is
noteworthy, did not state the factual basis on which it anchored its finding
that Gavino was the employee of MPA. We are in accord with MPA's pose.
Case law teaches Us that, for an employer-employee relationship to exist,
the confluence of the following elements must be established: (1) selection
and engagement of employees; (2) the payment of wages; (3) the power of
dismissal; (4) the employer's power to control the employees with respect to
PALE cases | 24

the means and method by which the work is to be performed (Ruga versus
NLRC, 181 SCRA 266).

Customs Administrative Order No. 15-65, which as an implementing rule has the force and effect
of law, can validly provide for solidary liability.We note the Solicitor General's comment hereon,
to wit:

xxx xxx xxx

The liability of MPA for damages is not anchored on Article 2180 of the New
Civil Code as erroneously found and declared by the Court a quo but under
the provisions of Customs Administrative Order No. 15-65, supra, in tandem
with the by-laws of the MPA. 107
There being no employer-employee relationship, clearly Article 2180 108 of the Civil Code is
inapplicable since there is no vicarious liability of an employer to speak of. It is so stated in
American law, as follows:
The well established rule is that pilot associations are immune to vicarious
liability for the tort of their members. They are not the employer of their
members and exercise no control over them once they take the helm of the
vessel. They are also not partnerships because the members do not
function as agents for the association or for each other. Pilots' associations
are also not liable for negligently assuring the competence of their members
because as professional associations they made no guarantee of the
professional conduct of their members to the general public. 109
Where under local statutes and regulations, pilot associations lack the necessary legal incidents
of responsibility, they have been held not liable for damages caused by the default of a member
pilot. 110 Whether or not the members of a pilots' association are in legal effect a copartnership
depends wholly on the powers and duties of the members in relation to one another under the
provisions of the governing statutes and regulations. The relation of a pilot to his association is
not that of a servant to the master, but of an associate assisting and participating in a common
purpose. Ultimately, the rights and liabilities between a pilots' association and an individual
member depend largely upon the constitution, articles or by-laws of the association, subject to
appropriate government regulations. 111
No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a
pilots' association in ljght of existing positive regulation under Philippine law. The Court of
Appeals properly applied the clear and unequivocal provisions of Customs Administrative Order
No. 15-65. In doing so, it was just being consistent with its finding of the non-existence of
employer-employee relationship between MPA and Capt. Gavino which precludes the
application of Article 2180 of the Civil Code.

. . . Customs Administrative Order No. 15-65 may be a mere rule and

regulation issued by an administrative agency pursuant to a delegated
authority to fix "the details" in the execution or enforcement of a policy set
out in the law itself. Nonetheless, said administrative order, which adds to
the procedural or enforcing provisions of substantive law, is legally binding
and receives the same statutory force upon going into effect. In that sense,
it has equal, not lower, statutory force and effect as a regular statute passed
by the legislature. 112
MPA's prayer for modification of the appellate court's decision under review by exculpating
petitioner MPA "from liability beyond seventy-five percent (75 %) of Reserve Fund" is
unnecessary because the liability of MPA under Par. XXVIII of Customs Administrative Order No.
15-65 is in fact limited to seventy-five percent (75 %) of its prescribed reserve fund, any amount
of liability beyond that being for the personal account of the erring pilot and subject to
reimbursement in case of a finding of fault by the member concerned. This is clarified by the
Solicitor General:
Moreover, contrary to petitioner's pretensions, the provisions of Customs
Administrative Order No. 15-65 do not limit the liability of petitioner as a
pilots' association to an absurdly small amount of seventy-five per centum
(75 %) of the member pilots' contribution of P2,000.00 to the reserve fund.
The law speaks of the entire reserve fund required to be maintained by the
pilots' association to answer (for) whatever liability arising from the tortious
act of its members. And even if the association is held liable for an amount
greater than the reserve fund, the association may not resist the liability by
claiming to be liable only up to seventy-five per centum (75 %) of the
reserve fund because in such instance it has the right to be reimbursed by
the offending member pilot for the excess. 113
WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED
and the assailed decision of the Court of Appeals is AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty.
Herbert A. Tria, is REPRIMANDED and WARNED that a repetition of the same or similar acts of
heedless disregard of its undertakings under the Rules shall be dealt with more severely.

True. Customs Administrative Order No. 15-65 does not categorically characterize or label
MPA's liability as solidary in nature. Nevertheless, a careful reading and proper analysis of the
correlated provisions lead to the conclusion that MPA is solidarily liable for the negligence of its
member pilots, without prejudice to subsequent reimbursement from the pilot at fault.

The original members of the legal team of the Office of the Solicitor General assigned to this
case, namely, Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, are
ADMONISHED and WARNED that a repetition of the same or similar acts of unduly delaying
proceedings due to delayed filing of required pleadings shall also be dealt with more stringently.

Art. 1207 of the Civil Code provides that there is solidary liability only when the obligation
expressly so states, or when the law or the nature of the obligation requires solidarity. Plainly,

The Solicitor Genral is DIRECTED to look into the circumstances of this case and to adopt
provident measures to avoid a repetition of this incident and which would ensure prompt
PALE cases | 25

compliance with orders of this Court regarding the timely filing of requisite pleadings, in the
interest of just, speedy and orderly administration of justice.

SO ORDERED.

Let copies of this decision be spread upon the personal records of the lawyers named herein in
the Office of the Bar Confidant.

PALE cases | 26