·.....

52 VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE 53

DEFINING THE DURATION OF The purpose of this work is to formulate a legal provision defining the duration of the
extraordinary responsibility of carriers for the safety of passengers. The writer hopes that
EXTRAORDINARY DILIGENCE FOR this work will help in clearing up any cloud on the issue and ultimately facilitate the enforcement
of, and compliance with, the obligation of observing extraordinary diligence.
THE SAFETY OF PASSENGERS
JOSEPH DURANO* I. INTRODUCTION

ABSTRACT A. Background

Humans have always been explorers. This drive to search and discover stems from The concept of common carriage has been around for a long time, and the
man's insatiable curiosity for the unknown. And in all of the greatest explorations of our . responsibility imposed by the State upon businesses engaged in transport continues
time, transportation has played an indispensable role. The march of development in transport to evolve. Prior to the Civil Code of 1950, common carriers did not receive "special"
technology during their times made it possible for Columbus, Magellan, Armstrong and treatment. Under the Civil Code of 1889,liabilities of common carriers were regulated
other pioneers like them to discover not only new lands and civilizations, but also new planets by the general culpa contractual provisions therein. Failure on the part of the carrier
and galaxies. to use due care in carrying its passengers safely was considered a breach of contractual
duty under its Articles 1101, 1103, and 1104.2
Today, modern transport remains a major factor in determining the course of human,
political, and economic development. In an age of borderless economies, people have become There were, of course, certain rules which subjected carriers in general to liability
more transient than ever before. As such, there is a natural dnnand for efficient and convenient for negligence in the Code of Commerce. Under Article 362 of that Code, a carrier
means of travel. For many years, this need has been addressed by business entities popularly was made "liable for the losses and damages resulting from the causes mentioned in
known in law as common carriers.1 Despite the advancement in mass transportation the preceding article if it is proved, as against him, that they arose through his
technology, however, there is one element in the business of common carriage that has remained negligence or by reason of his having failed to take the precautions which usage has
stagnant - the tendency of common carriers to prioritize profits over the quality of their established. among careful persons." Also, under Section 3 of the Carriage of Goods
service and the safety of their passengers. Laws nevertheless exist for the purpose of curbing by Sea Act} (COGSA) "the carrier shall be bound before and at the beginning of the
this deleterious tendency. voyage to exercise due diligence to- a) make the ship seaworthy."

Article 1755 of the Civil Code, for instance, provides that "a common carrier is bound to The old laws not only required common carriers to exercise merely ordinary
carry the passenger safely as far as human care and foresight can provide, using the utmost diligence, but also treated them with such liberality incompatible with today's
diligence of very cautious persons, with a due regard for all the circumstances." To add standards. Under Section 4 of the COGSA for example, the carrier is not made
compulsive force to this obligation, Article 1756 provides for a disincentive against erring responsible "for loss or damage arising or resulting from- a) act, neglect, or default of
common carriers by presuming it negligent in case of death or injury to the passenger. the master, mariner, pilot, or the servants of the carrier in the navigation or in the
management of the ship." While remaining good law, the Supreme Court has not
Presently, a controversial issue involving the extraordinary diligence required of common allowed this exculpatory clause to prevail over the present common carrier provisions
carriers exists. This controversy relates to the issue of time. From and until what point in in the Civil Code. 4
time is a carrier required to assume and perform its obligation to observe extraordinary diligence
for the safety of passengers? The law does not define the time parameters of this obligation, . In upgrading the diligence required of common carriers, legislators believed
although Philippine and American jurisprudence have suggested some answers. Due to the that laws had become impotent in protecting the public from the abuses commonly
controversy spawned by fhe absence of positive law on the matter and the seemingly erratic committed by common carriers. Justice Paras mentions an all too common scenario:
nature of such jurisprudence, it is desirable, if not imperative, that a law be enacted to settle
the issue and henceforth guide the courts in their adjudication of disputes between carriers
and passengers.

2
* Juris Doctor 1997, with honors, Ateneo de Manila University School of Law; recipient of the Ateneo de De! Prado v. Manila Electric.Co., 52 Phil. 900, 904 (1929). These provisions are now embodied in Articles
Manila University School of Law Second Best Thesis Award. 1170,1172 and 1173 of the New Civil Code.
3
' Article 1732 of the New Civil Code defines common carriers as "persons, corporations, firms or Commonwealth Act No. 65 (1936).
associations engaged in the business of carrying or transporting passengers or goods or both, by land, 4

water, or air, for compensation, offering their services to the public." See National Development Company v. Court of Appeals, 164 SCRA 593 (1988).
 ··_,.·

54 ATENEO LAw JouRNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE . 55

"Concededly one of the most fantastic phenomena in vehicle-cursed cities of delivered actually or constructively by the carrier to the consignee or to the person
the Philippines is the death defying pedestrian. But almost as reckless, and equally who has a right to receive them." 11
blame-worthy in vehicular accidents is the average bus, jeepney; or taxi driver. Too
often, the man at the wheel does not care, ostensibly whether he lives or not. To The law, however, for some undisclosed reason, does not define the duration of
him life seems deadly cheap, and he apparently has resolved to make it cheaper. extraordinary diligence in the transport of passengers. The objective of this thesis,
The pleas of his passengers are amazingly unavailing; the driver, intrigued by his
therefore, is to define the duration of the extraordinary obligation of carriers for the
own nonchalance, answers with laughter, derisive and cruel and as a final taunt,
steps on the gas with an even greater ferocity. 5 safety of passengers and to incorporate it as part of Article 1755.

It is this recognized interest of the public to have an efficient and safe public To achieve such objective, the following will be discussed and analyzed:
transportation system that has caused the evolution of the ordinary responsibility of 1) the current laws on common carriage;
a common carrier into an extraordinary responsibility. Indeed, the Supreme Court 2) general principles of law;
has recognized that "in approving the draft of the Civil Code. as prepared by the 3) Philippine and American jurisprudence relative to this issue.
Code Commission, Congress must have concurred with the Commission that by
requiring the highest degree of diligence from common carriers in the safe transport Pertinent rules on statutory construction shall also be used in the discussion.
of their passengers and by creating a presumption of negligence against them, the
recklessness of their drivers which is a common sight even in crowded areas and, C. Limitation of the Thesis
particularly, on the highways throughout the country may somehow, if not in a large
measure, be curbed." 6 In the transportation industry, the mode of transport is classified into land, water,
and air. These .three modes of transport have their respective legal idiosyncrasies.
As a result, under Article 1733 of the New Civil Code, instead of being obliged In discussing the extraordinary diligence required of common carriers for the safety
"to take the precautions which usage has established among careful persons," 7 a of passengers, this thesis will treat transportation in general, cutting across these
common carrier became bound "to observe extraordinary diligence in the vigilance classifications, except in some portions of the thesis where making a distinction may
over the goods and for the safety of the passengers transported by them, according be necessary.
to all the circumstances of each case." The law further provides for a presumption of
negligence to be imputed against the carrier in cases of death or injury to passengers, Also, this work is primarily concerned with the issue of time. The law requires
obviously in an attempt to force carriers to comply with this new obligation. 8 As a common carrier "to carry the passengers safely as far as human care and foresight
observed by the Supreme Court, "the law concerning the liability of a common carrier can provide, using the utmost diligence of very cautious persons, with a due regard
has now suffered a substantial modification in view of the innovations introduced for all the circumstances." 12 This obligation raises two questions: 1) what acts must
by the new Civil Code" 9 as embodied now in Articles 1733, 1755, and 1756. carriers perform under this obligation? and 2) when should a carrier perform these
acts? This work will attempt to answer these questions.
B. Objective of the Thesis
D. Organization of the Thesis
The law on common carriers requires the carrier to observe extraordinary
diligence in the vigilance over the goods and the safety of the passengers transported This thesis is divided into five chapters, beginning with this Introduction. The
by them. 10 In the case of transport of goods, the duration of the extraordinary diligence second chapter discusses the contract of carriage in general. It deals with the
requirement is defined by Article 1736 of the Civil Code. This provides that fundamental principles of obligations and contracts with a view to determining the
extraordinary responsibility "lasts from the time the goods are unconditionally placed time of perfection and termination of the contract of common carriage. Ultimately, it
in the possession of, and received by the carrier for transportation until the same are attempts to determine the time of creation and termination of the carrier-passenger
relationship. The third chapter discusses Philippine and American jurisprudence
Which lay down rules relating to, and which will hopefully aid us, in determining the
duration of the extraordinary diligence required of carriers for the safety of passengers.
5
The fourth chapter attempts to formulate a legal provision defining the duration of
5 EDGARDO PARAS, CIVIL CODE OF THE PHILIPPINES: ANNOTATED 458-59 (12th ed. 1990).
the carrier's extraordinary diligence obligation and provides the reasons therefor. It
6
Nocum v. Laguna Tayabas Bus Co., 30 SCRA 69 (1965).
7
Code of Commerce, art. 362.
8 11
Civil Code of the Philippines, Republic Act No. 586, art. 1756 (1950). See APL v. Klepper, llO Phil. 243 (1960); Campania Maritima v. Insurance Co. of North America, 12
9
Isaac v. A.L. Ammen Trans. Co., Inc., 101 Phil. 1049 (1957). SCRA 213 (1964); LuDo v. Binamira, 101 Phil. 120 (1957).
° Civil Code, art. 1733 .
1
.
12
Civil Code, art. 1755 .
 56 ATENEO LAW JOURNAL VOL. XLII N0.1 . 57
1997 DEFINING EXTRAORDINARY DILIGENCE

also proposes the adoption of a codal provision expressing the thesis. The last chapter Applying these concepts to the contract to carry, it may be said that the relation
is the conclusion. of carrier and would-be passenger first begins when a person offers to become a
passenger and the carrier accepts the offer. 20 It may also be said that a common
carrier, being engaged in a public duty, makes a continuous offer of its services and
II. THE CONTRACT OF COMMON CARRIAGE is therefore the offeror, with the would-be passenger accepting the offer, thereby
binding the carrier to a contract. 21
From as early as Rakes v. Atlantic Gulf & Pacific Co.} 3 the Supreme Court had
ruled that the relationship between the carrier and the passenger arises from contract.l 4 Whether the offer comes from the carrier or from the passenger is, however, of
This is the same rule in most of, if not throughout, the United StatesY Thus, the little significance. The result is the same, i.e. to create a contract involving reciprocal
creation and termination of the contract of common carriage determine when a person prestations. Thus, a person who purchases a ticket from Philippine Airlines on 1
becomes and ceases to be a passenger. The question may be stated twofold: (1) when October 1996 for a flight from Manila to Cebu on 2 October 1996 enters into a
is the contract of common carriage created? and (2) when is the contract of common contract with the carrier- a contract to carry. But it is not until the person takes the
carriage terminated? flight on 2 October 1996 when he becomes a passenger in the real sense, or when the
parties enter into the contract of carriage. 22
In discussing the beginning and end of the vinculum juris between the carrier
and the passenger, there is a need to first distinguish between the two aspects of the In the case of land transportation, where the carrier offers its services to the
contract of common carriage of passengers. This distinction is explained in British public by continuously advertising in its conveyances the routes being serviced by it,
Airways, Inc. v. Court of Appeals. 16 Here, the Supreme Court said: and by stopping for passengers either at designated bus stops or on any portion of
the street, the contract to carry would appear to exist at the time the person signals
In dealing with the contract of common carriage of passengers, for purpose of the bus to stop or otherwise manifests an intention to board the bus, and the bus
accuracy, there are two (2) aspects of the same, namely: (a) the contract to carry (at driver signals his acceptance of the offer by slowing down or stopping at a point
some future time), which contract is consensual and is necessarily perfected by where the client can now board the conveyance. 23 At this point in time, it may be
mere consent; and (b) the contract of carriage or of common carriage itself which
should be considered as a real contract for not until the carrier is actually used can
said that there is already a "meeting of the offer and acceptance upon the thing and
the carrier be said to have already assumed the obligation of a carrier. the cause which are to constitute the contract." 24

The first aspect of the contract , the contract to carry, is perfected like aU other Vda. de Nueca v. Manila Railroad Company25 illustrates the absence of meeting of
consensual contracts - by mere consent. And from that moment, "the parties are minds. Here, Fermin Nueca availed of the respondent company's freight services to
bound not only to the fulfillment of what has been expressly stipulated but also to all transport seven sacks of palay. Nueca's cargo was successfully loaded. After the
the consequences which, according to their nature, may be in keeping with good passengers had boarded the train, shunting operations were started 'to hook the freight
faith, usage and law." 17 Consent itself is "manifested by the meeting of the offer and wagon thereto. Before the train reached the turnoff switch, its passenger coach and
acceptance upon the thing and the cause which are to constitute the contract." 18 the freight wagon were derailed and fell on its side, pinning Fermin Nueca. The
Acceptance may be express or implied. 19 latter was killed instantaneously. In the resulting lawsuit, the trial court ruled in
favor of the respondent company for the following reasons:

Firstly, there was no proof or even an averment that the deceased bought a
ticket or paid his fare at the same time that he paid the freight charges for his cargo,
or at any time thereafter; and secondly, it can be inferred from the site of the accident

" 7 Phil. 359 (1907).

14
See also Cango v. Manila Railroad, 38 Phil. 767 (1918); Medina v. Cresencia, 99 Phil. 506 (1956); Fores v. 20
Medina, 105 Phil. 266 (1959). 13 CJ.S. 1059, citing U.S. Fidelity & Guaranty Company v. Aschenberger 65 F. 2d 976.
15
Neidert v. Portland Stages, Inc., 376 P. 2d 92 (1962), citing Todd v. Louisville & N.R. Co., 113 N.E. 95 " Dangwa Transportation Co., Inc. v. Court of Appeals, 202 SCRA 574, 580 (1991).
and Roberts v. Northwest Airlines, 275 N.W. 410. 22
British Airways v. CA, 218 SCRA 699 (1993).
23
" 218 SCRA 699 (1993). Del Prado v. Meralco, 52 Phil. 900 (1929); Tamayo v. Pascua, 8 CAR 741 (1965); Gray v. City and
17
Civil Code, art. 1315. County of San Francisco, 20 Cal. Rptr. 894 (1962); Hot Springs Street Railway Co. v. Jones, 354 S.W. 2d
. 278 (1962).
18
Civil Code, art. 1319.
"Civil Code, art. 1319, See also Tamayo, 8 CAR at 748.
19
Civil Code, art. 1320. 25
65 O.G. 3151 (1%8).
 58 A TENEO LAW JOURNAL VOL. XLII N0.1 1997 DEFINING ExTRAORDINARY DILIGENCE . 59

that the deceased was either inside the baggage car or beside it, in which cases he In the contract of common carriage, the essential overt act is the "actual use" of
was not in a proper place for passengers. 26 the carrier. In this overt act, the passenger performs the active overt act by delivering
himself to the car::·ier for transportation, and the carrier, the passive overt act by
In absolving the respondent company for breach of contract, the Court of Appeals accepting or receiving the passenger. It is important to emphasize, however, that this
ruled: delivery and acceptance on the part of the passenger and the carrier, respectively;
must be of such a nature that it directly and clearly signifies the intention of entering
Disregarding, then, the matter of tickets, and assuming that the deceased was into the contract of carriage, as distinguished from the executory contract to carry.
an intending passenger, such a relation was never accepted by the appellee as he Therefore, the active overt act of the passenger must be the act of presenting himself
did not present himself at the proper place and in a proper manner to be transported.
He should have stayed at the station, ticket office, waiting room, cir even inside the to the carrier for the purpose of boarding the conveyance29 and the passive overt act
passenger coach; but not beside the baggage car or inside it, the latter place not of the carrier is the act of allowing the passenger, expressly or impliedly, to board the
being used for conveying passengers. 27 conveyance. 30 Only through the concurrence of these overt acts can it be said that
the parties have entered into the real contract of carriage- the contract of transporting
In the above case, the offer of the deceased pertained to the transportation of his the passenger "safely as far as human care and foresight can provide, using the utmost
sacks of palay on respondent's train. Respondent accepted by receiving the payment diligence of very cautious persons, with a due regard for all the circumstances." 31
and loading said sacks of palay on its freight wagon. It was doubtful whether the
deceased also intended to become a passenger even if he was near the passenger With respect to the termination of the contract of common carriage - both in its
coach when the accident happened. The Court of Appeals ruled that there was no consensual and real aspects- the laws on the extinguishment of obligations apply.
acceptance on the part of the carrier, assuming that the deceased offered to become a Thus, the contractual relation may be considered terminated; or the obligor released
passenger. Clearly, there was no meeting of the offer and acceptance upon the thing from liability for non-performance, upon payment of the obligation, rescission,
and the cause which constitutes the contract to carry. resolution, by agreement of the parties to terminate the same/2 or legal or physical
impossibility of performance/3 among others.
As earlier mentioned, the second aspect of the contract is the real contract of
carriage. It is here where the would-be passenger becomes a passenger in fact. The To properly apply these modes of termination to the contract of common carriage,
ramifications of this aspect of the contract of carriage are discussed at length in Chapter it is required that they exist in relation to the principal obligation of the carrier to
IV. For the purpose of this section, it is sufficient to briefly discuss the concept of real transport passengers to the destination agreed upon. As such, and in the absence of
contracts and to distinguish this aspect of the contract from its consensual counterpart. any other obligation on the part of the carrier under the contract, it can be generally
concluded that the contract of common carriage ends when the carrier completely
Generally, a real contract requires the delivery of the object of the contractor its performs the service oftransporting the passenger to the destination agreed upon, 34
perfection. Pledge is an example of a real contract. To constitute the·contract of when the obligati9n to transport has become legally or physically impossible to
pledge, it is necessary "that the thing pledged be placed in the possession of the perform without the carrier being at fault, 35 or when the parties have rescinded or
creditor, or of a third person by common agreement." 28 Thus, in order to perfect a otherwise agreed to end the relationship.
contract of pledge the pledgor must deliver the thing to the pledgee who must receive
the same. This shows that in a real contract, an essential overt act is performed by .. The issue of beginning and end of the contract of common carriage, and the
the parties which directly and clearly signifies their intention to effectuate the real distinction between the contract to carry and contract of carriage, are matters of great
contract. This overt act is subsequent to and is more than just the giving of consent. significance. This is because a carrier's duty to exercise extraordinary diligence
This is what distinguishes a real contract from a consensual one. The example above exists only during the second aspect of the contract. A carrier, therefore, is liable
also shows that the overt acts appear to consist of what one may call an "active overt
act" and a "passive overt act." In the contract of pledge, the active overt act is the act
of the pledgor in delivering the thing. The passive overt act is the act of the pledgee
29
in receiving the thing, which also signifies the latter's acceptance of the obligation. De! Prado v. Meralco, 52 Phil. 900,904 (1929).
30
Metropolitan Transit System, Inc. v. Burton, 120 S.E. 2d 663 (1961); Hot Springs Street Railway Co. v.
Jones, 354 S.W. 2d 278 (1962); Roberts v. Yellow Cab Co., 240 A.2d 733 (1968); Civil Code, art. 1756.
31
CiVil Code, art. 1755.
32
CiVil Code, art. 1231.
33
CiVil Code, art. 1266.
26 ld. at 3153. 34
CiVil Code, art. 1233
27
ld. at 3155.
qvil Code, art. 1266.
28
Civil Code, art. 2093.
60 ATENEO LAw JouRNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE . 61

under the contract of common carriage for damages due to a passenger's injury or 'carrier and passenger' commences when a person with the good faith intention of
death only if it takes place during the real contract of carriage.36 taking passage and with the express or implied consent of the carrier places himself
in a situation to avail_himself ofthe facilities for transportation which the carrier
offers." 40
Ill. DURATION OF EXTRAORDINARY DILIGENCE
FOR THE SAFETY OF P A$SENGERS
Stated differently, it may be said that the relation of passenger and carrier
commences, and the carrier begins to be under a duty to exercise extraordinary
diligence to ensure the pas\)enger's safety "when, one puts himself in the care of the
In the previous chapter, the writer dwelt on the commencement and end of the
carrier, or directly within its control, with the bona fide intention of becoming a
contract to carry, and briefly, on the contract of common carriage. In relation thereto,
passenger, and is accepted by such carrier. " 41
the distinction between the contract to carry and the contract of common carriage
was discussed. This chapter will focus on the duration of the contract of carriage
To attain the status of passenger, it may riot be necessary that one has actually
alone and the time during which the carrier is required to observe extraordinary
entered the carrier's vehicle. Being in the carrier's premises preparatory to boarding
diligence.
the means of conveyance may vest the person with the status of passenger. In Cangco
v. Manila Railroad Co., 42 the Supreme Court declared that the contractual duty of the
Article 1733 of the Civil Code requires the carrier to observe extraordinary
carrier to transport the passenger "carried with it, by implication, the duty to carry
diligence "for the safety of the passengers transported by them, according to all the
him in safety and to provide means of entering and leaving its trains." 43 In this case,
circumstances of each case." From the outset, it is clear that a carrier is bound to
the passenger, while alighting from the train, stepped on a sack of watermelons, fell
exercise extraordinary diligence in favor only of a particular person - a passenger.
on the platform, was drawn under the moving car and was injured. The Court not
Due to the dual nature of the contract of common carriage, it is necessary to determine
only spoke of the duty of the carrier to provide safe means of egress as being part of
at what stage of the contract is a person considered a passenger.
the contractual undertaking assumed by common carriers, but held that the failure
of the carrier to maintain its platform as would afford "safe means of approaching and
The obligor and obligee in the contract of common carriage is the carrier and the
leaving its trains" made it liable.44
passenger, respectively. However, "not until the carrier is actually used can the carrier
be said to have already assumed the obligations of a carrier." 37 Consequently, we
The principle laid down in Cangco was reiterated in Del Prado v. Manila Electric
have referred to the obligee in a contract to carry as a would-be passenger. This is
Co.45 In this case, the plaintiff failed to catch defendant's street car when it stopped at
because it is only when the carrier is actually used that the parties become truly the
the designated place to take on passengers. Plaintiff then ran across the street to
carrier and the passenger under the contract. Therefore, to determine the duration of
catch the car.· Upon approaching the car, he raised his hand a.s an indication to the
the extraordinary diligence requirement, the question is: when is a person a passenger
' motorman of his desire to board the car. In response, the motorman slowed down,
in the real or true sense?
but did not fully stop. At this moment, the plaintiff seized with his left hand the front
perpendicular handpost, at the same time placing his left foot upon the platform.
A. Commencement of Passenger Status
But before plaintiff's right foot reached the platform, the motorman applied the power,
causing the plaintiff to fall. In holding the carrier liable, the Supreme Court, citing
Justice Vi tug recognizes that the law defines the lifetime of extraordinary diligence
Cangco, ruled that "the duty that the carrier of passengers owes to its patrons extends
in the carriage of goods, but that "no equivalent provisions exist in the carriage of
to persons boarding the cars as well as to those alighting therefrom." 46
passengers." 38 Citing American jurisprudence, he proposes that in case of persons,
"utmost diligence should start once the passenger places himself to and is accepted
40
by, and while he remains under the proper care and charge of, the carrier." 39 For AMBROSIO PADILLA and }OSE CAMPOS, THE LAW ON TRANSPORTATION 6 (1959).
their part, Senator Padilla and Justice Campos have expressed that "(t)he relation of 41
Vda. De Nueca, eta!. v. Manila Railroad Co., 65 O.G. 3153 (1968); see also Peoples Checker Cab Company
v. Dunlap, 307 P. 2d 833 (1957), citing Chicago, RL & P. Ry. Co. v. Warren, 132 Okl. 107, 269 P. 368;
Chicago South Shore & South Bend Railroad v. Brown, 320 N.E. 2d. 809.
42
38 PhiL 767 (1918).
43
Cangco v. Manila Railroad, 38 Phil. 767, 781 (1918).
44
Id. See also Katamay v. Chicago Transit Authority, 289 N.E. 2d 623 (1972); Brand elius v. City and County
of San Francisco, 206 P. 2d. 432 (1957); Bailey v. Louisville and Nashville Railroad Co., 160 S.E. 2d 245
36
See infra, Chapter N. (1968); Roberts v. Yellow Cab Co., 240 A 2d 733 (1968); Chicago South Shore & South Bound Railroad,
37 British Airways v. CA, 218 SCRA 699 (1993). 320 N.E. 2d. 809 (year of promulgation unavailable).
45
38
}OSE VITUG, COMPENDRJM ON CiVIL LAW AND }URIS PRUDENCE 683 (1993), citing 10 AM. }UR. 27. 52 Phil. 900 (1929).
46
39 Id. Id. at 904.
 62 A TENEO LAW 1OURNAL VOL. XLII N0.1 DEFINING EXTRAORDINARY DILIGENCE 63

It follows then that the duty to exercise extraordinary diligence, extending These criteria may be applied to reconcile apparent conflicts in jurisprudence as
as it does to ensure the safety of passengers in the process of boarding and to when the contract of carriage begins and continues. In any case, one can see that
alighting, extends in the proper cases to persons waiting to board a train, ship physical contact with the carrier may be required so that, first, the person can
or plane in the carrier's premises pursuant to a contract to carry. It also extends attain the status of passenger; and second, the carrier can be considered as being
to a place, although not owned by the carrier, but which may be subject to a ;,actually used."
reasonable degree of control by the carrier.
Katamay v. Chicago Transit Authorit!f3 illustrates the criteria of place and intention.
Justice Paras, however, seems to favor the view that "the passenger must have, Here, the plaintiff was standing on the carrier's elevated platform waiting to board
with the carrier's consent, placed a part of his body on any part of the jeepney, taxi or the train. The train stopped at the platform, its doors opened, several people boarded,
bus- such as the stepping platform or the running board." 47 Senator Padilla 's work and as plaintiff started towards the train, she fell. Her shoes were off her feet and the
on the Civil Code also mentions the view that the contract of carriage is perfected heels were wedged in the spaces between the wooden planks and the platform. The
from the moment the passenger boards the carrier by some physical act. 48 He quotes Supreme Court of Illinois held that plaintiff had obtained the status of passenger
from the decision of the Court of Appeals in Vda. De Galvez v. Marikina Bus, Inc. 49 ... ·.because at the time of the accident, she was standing on defendant's elevated platform
which says that "(f)rom the moment a passenger boards a common carrier by placing · waiting and had in fact started to board defendant's train.
her right foot on the running board, the contract of carriage is perfected, and the
obligation of the common carrier towards the passenger commences." In San Diego v. The District of Columbia Court of Appeals reached a different conclusion in
MD Transit & Taxi Co., lnc.,S0 the Court of Appeals referred to the time when the Baker v. D.C. Transit System, Inc. 54 In th:l.t case, the would-be passenger was injured
passenger had "her right foot already up on the running board" of a passenger when she caught her heel in a crack in a cement block where she was waiting for a
vehicle which has stopped at his signal so he could board it as perfecting the contract bus. The court denied liability, noting that the bus company did not have any control
of carriage. And later, in Motos v. Capistrano?the Court of Appeals again held that a over the concrete slab nor did it have an obligation to maintain or inspect it. The
contract of carriage is perfected where a carrier offers carriage to persons bound for o-iterionof place not being met, the court acquitted the carrier.
its destination, by shouting the name of its destination C'Pandacan, Pandacan") and
stopping at a waiting shed, and a passenger accepts the offer by boarding the bus. Suarez v. Trans World Airlines,lnc. (TWA) 55 is an interesting portrayal of the control
· factor. In this case, reservations on a TWA flight were made on the telephone by a
Zorotovich v. Washington Toll Bridge Authorit!f2 enumerates the following criteria ·husband for the carriage of his wife who had just suffered an angina attack. At the
used in determining whether a person has attained the status of passenger: instructions of her doctor, arrangements were also made for TWA to meet the patient
. with a wheelchair when she arrived at the airport to take her flight. On the appointed
1
1. Place. This to "a place under the control of the carrier and provided .· day, the wife proceeded to the airport. A TWA employee met her at the curb and
for the use of persons who are about to enter the carrier's conveyance." wheeled her into the TWA counter inside the terminal. However, problems occurred
2. Time. This refers to "a reasonable time before the time to enter the ·with respect to the issuance of her ticket and boarding pass and the patient suffered
conveyance." a heart attack, allegedly due to poor treatment of TWA personnel. The United
3. Intention. This refers to a "genuine intention to take passage upon carrier's States Court of Appeals held that the patient had become a passenger, the lack of
conveyance." contact with the aircraft notwithstanding:
4. Control. This refers to "a submission to the directions, express or implied
of the carrier." The factor which sharply distinguishes the present case from others is the
5. Knowledge. This pertains to notice to the carrier "either that the person is disablement of Mrs. Suarez and her virtual captivity in the carrier's wheelchair,
actually prepared to take passage or that persons awaiting passage may underscoring heavily the "control" element in the Katamay-Zorotovich criteria ...
Here, Mrs. Suarez "submitted her body" to the control of TWA when she was placed
reasonably be expected at the time and place."
in the TWA wheelchair after being told by her doctor that "he did not want her to
walk for several days .... and this advice was given with some emphasis and was
conveyed by both Mr. and Mrs. Suarez to TWA."

47
5 EDGARDO PARAS, supra note 5, at 460, citing Illinois C.R. Co. v. O'Keefe, 686 Ill. 155.
48 AMBROSIO PADILLA, V CIVIL LAw 975 (1974)
'
9
18 CAR [Is] 807 (1971).
53
50
5 CAR [25) 571,576 (1964). 289 N.E. 2d. 623 (1972).
51
23 CAR [25]1062, 1069 (1978). ;, 248 A 2d. 829 (1989).
52
491 P. 2d. 1295 (1971). 498 F. 2d. 612 (1974).
 64 ATENEO LAW JOURNAL VOL. XLII N0.1 DmNING ExTRAORDINARY DILIGENCE 65

In addition to the authority given by the foregoing case law, there is a rule of to be observed by a common carrier in the discharge of its obligation to transport its
international law which prescribes a specific rule for the commencement of the passengers safely. The Court took note of the facts that (a) the driver never put off
passenger-carrier relationship. Under Article 17 of the Convention for the Unification the engine; (b) he started to run the bus even before the conductor gave him the
of Certain Rules Relating to International Transportation By Air (also known as the signal to go; and (c) the conductor was still unloading the passenger's baggage. Using
"Warsaw Convention") ,56 "(t)he carrier shall be liable for damages sustained in the a test of "reasonableness," the Court further declared that the presence of Raquel
61
event of death or wounding of a passenger or other bodily injury suffered by a near the bus was not unreasonable, and that she, therefore, remained a passenger.
passenger if the accident which caused the damage so sustained took place on board
the aircraft or in the course of any of the operations of embarking or disembarking." The Supreme Court of Oregon, deciding Neidert v. Portland Stages, Inc.,6 2 a case
Upon the authority of Article 17, therefore, a person would become a passenger if strikingly-similar to La Mallorca, appears to have held differently. Here, the plaintiff
the damage occurs while he is in the process of "embarking." The Warsaw Convention had completely alighted from defendant's bus at her destination. She then
also does not require that the person, or any part of his body, be in physical contact remembered that she had left a package inside the bus and turned back to retrieve
with the aircraft. · the package from the bus. As she was doing so, the bus started to move again and
the plaintiff fell and was injured. In absolving the carrier from liability, the court
In Day v. Trans World AirlinesP for instance, the United States District Court held that the contractual obligation of the carrier of safe carriage had ceased when
ruled that passengers who were injured by a terrorist attack that took place while plaintiff alighted in a safe place. At that point, the court declared the relationship of
they were about to board a bus that was to take them from the Athens airport terminal carrier and passenger had ceased.
to the aircraft, were passengers and that the injuries were sustained while "in the
course of any of the operations of embarking." 58 In Lewis v. Goodman,63 a young girl had alighted safely from the bus when the
driver noticed-that she had left some books. On his return trip, the driver saw the
B. Termination of Passenger Status girl standing on the side of the road and, intending to hand the books over to her, the
driver drove his bus alongside the girl and stopped. The door of the bus opened and
The prevailing Philippine rule holds that the passenger-carrier relation continues the girl reached in to obtain the books. After that, she stepped back and started to
until the passenger has left the premises used by the carrier at the point of destination cross the road towards her home and in doing so passed in front of the stationary
and has been allowed a reasonable time to leave. 59 bus. It was at that point where the girl was hit and injured by another car passing by
the left side of the bus. In the suit against the bus company, plaintiff argued that she
The first ofthe Philippine cases involving the issue of termination of the passenger was a passenger at the time of the incident even if she had gotten out of the bus and
-carrier relation is La Mal/orca v. Court of Appeals,60 decided by the Supreme Court in · had come back merely for the purpose of retrieving the books. Therefore, it was
1966. In that case, plaintiffs, husband and wife, together with their minor children contended that the carrier owed her that degree of duty which is due to a passenger.
Milagros, Raquel and Fe boarded a Pambusco bus. Upon reaching their destination, The Court of Appeals of Louisiana disagreed. It ruled that the carrier-passenger
plaintiffs and the children alighted from the bus and the father led his companions relation had already terminated at the time of the accident:
to a shaded spot about 4 or 5 meters away from the vehicle. The father returned to
the bus to get a piece of baggage which was not unloaded when they alighted from The usual rule is that when a carrier deposits a passenger at a safe place and
the bus. Raquel appears to have followed her father back to the bus such that while the passenger has alighted, the status of passenger comes to an end and that
the latter was still on the running board of the bus waiting for the conductor to give thereafter the duty owed to the former passenger is only the duty of ordinary care.
him his bayong, the bus started to run. The father had to jump from the moving
vehicle. It was at this instance that Raquel, who had apparently gone near the bus,
was run over and killed. The Supreme Court held the carrier liable, declaring that it We think that the status of passenger had terminated and the fact that the little
had failed to exercise the utmost diligence required by Article 1755 of the Civil Code girl found it necessary to await the return of the bus and to receive the books did
not revive that relationship even if the child re-entered the bus to get the books.

56 51 O.G. 5084 (1955).

57 393 F. Supp. 217 (1975).
58
Day v. Trans World Airlines, 393 F. Supp. 217, 221 (year of promulgation unavailable).
59
PADILLA AND CAMPOS, supra note 40, at 6, citing Atlantic City R. Co. v. Kiefer, 66 A. 930; La Mallorca v. 61
Court of Appeals, 17 SCRA 739 (1966); Aboitiz Shipping v. Court of Appeals, 179 SCRA 95 (1989); La Mallorca, 17 SCRA 739,744 (1966).
Philippine Airlines v. Court of Appeals, 226 SCRA 423 (1993). " 376 P. 2d. 92 (1962).
60
17 SCRA 739 (1966). 92 So. id. 723 (1957).
66 ATENEO LAw JouRNAL VOL. XLII NO. I 1997 DEFINING EXTRAORDINARY DILIGENCE . 67

Shanowat v. Checker Taxi CompanyM provides an instance when the passenger · discharged at a reasonably safe place merely because there is no hazard at the precise
alights in an unsafe place. In that case, the Appellate Court of Illinois ruled that the spot he alights ... What is reasonably safe depends upon the probability of injury to
passenger-carrier relationship subsisted even if the passenger, a young girl, had pa::;sengers and the likely seriousness of injury if it occurs." 69
completely alighted from the vehicle. There, the taxicab driver, upon arriving at the
girl's destination, double-parked his car on a busy street and informed the passenger In 1989, Aboitiz Shipping Corporation v. Court of Appeals/0 another case involving
that she could alight, which the passenger did. While the passenger's mother was the issue of termination of the carrier-passenger relationship was decided by our
paying the fare, the passenger alighted, stepped in front of the cab and crossed the Supreme Court. There, the Court harkened to the "reasonableness test" given in La
street. The passenger was then hit by a passing car. The court held that: Mallorca.
[A] person ceases to be a passenger as soon as he safely steps from the vehicle In Aboitiz, passenger Anacleto Viana boarded the vessel M/V Antonia, owned
into the street or highway at a reasonably safe and proper place. and operated by defendant carrier Aboitiz Shipping, bound for Manila. Upon arrival
of the vessel at Manila's Pier 4, the passengers disembarked, including Viana. The
Pioneer Stevedoring Corporation then took over the exclusive control of the cargoes
The traveled portion of the street or highway, however, under present day loaded on said vessel pursuant to an agreement between the stevedoring company
conditions can hardly be characterized as a place of safety and a passenger deposited and Aboitiz. A crane owned by the stevedoring company and placed alongside the
in the traveled portion and injured as a consequence may hold the carrier liable. vessel started to unload cargoes one (1) hour after the passengers had disembarked.
Viana, who had already disembarked, but obviously remembering that some of his
The rule has been applied that where a passenger is discharged in an unsafe
place, the relation of carrier and passenger is not terminated until the passenger, in baggages were still loaded in the vessel, returned alongside the vessel .. He called the
reasonable exercise of ordinary care for his own safety has had reasonable attention of a member of the vessel's crew and pointed to where his things were
opportunity to reach a place of safety. The Shanowat children having been discharged loaded. At that point, the crane hit him. Viana was pinned between the side of the
into the street which was far from being safe, we believe that the relation of carrier vessel and the crane and died three days later.
and passenger stili existed and that the driver accordingly was stili bound to exercise
the highest degree of care. 65 In affirming the liability of defendant-carrier for the injuries, the Supreme Court
ruled that at the time of his death, Viana was still a "passenger:"
In another case, where the passengers were discharged by the bus driver at a
slippery snow-covered street and not at a regular stopping place, the Supreme Court The rule is that the relation of carrier and passenger continues until the
of Washington held thc>.t the carrier-passenger relationship had not terminated and passenger has been landed at the port of destination and has left the vessel owner's
held in favor of a passenger who slipped soon after she alighted. 66 The Supreme dock or premises. Once created, the relationship will not ordinarily terminate until
Judicial Court of Massachusetts also reached the same conclusion in a case where the the passenger has, after reaching his destination, safely alighted from the carrier's
passenger alighted from the bus into a manhole cover adjacent to the step and conveyance oi had a reasonable opportunity to leave the carrier's premises. All
slipped. 67 The court there reiterated that "(t)here was an obligation on the defendant persons who remain on the premises a reasonable time after leaving the conveyance
are to be deemed passengers, and what is a reasonable time or a reasonable delay
as a carrier to stop its bus at a safe place for passengers to alight or to give warning of within this rule is to be determined from all the circumstances, and includes a
danger in alighting." 68 reasonable time to see after his baggage and prepare for his departure. The carrier-
passenger relationship is not terminated merely by the fact that the person
Presence of a risk of injury to a passenger has also been considered in determining transported has been carried to his destination if, for example, such person remains
whether the place of disembarkation is "reasonably safe." Thus, "a passenger is not in the carrier's premises to claim his baggage.71

... [W]e cannot in reason doubt that the victim Anacleto Viana was still a
passenger at the time of the incident. When the accident occurred, the victim was
in the act of unloading his cargoes, which he had every right to do, from petitioner's
64 198 N.E. 2d. 573 (1964).
65
Shanowat, 198 N.E. 2d. 573, 576 (1968).
66
Peterson v. City of Seattle, 316 P. 2d. 904 (1957).
67
Brown v. Metropolitan Transit Authority, 171 N.E. 2d. 869 (1961). " Feldman v. Howard, 214 N.E. 2d. 235 (1966).
68
Id. at 871, citing Wakeley v. Bostin Elevated Ry. Co., 105 N.E. 436; McManus v. Boston Elevated Ry. Co., 179 SCRA 95 (1989).
160 N.E. 529. Aboitiz Shipping v. Court of Appeals, 179 SCRA 95, 102 (1989).
68 A TENEO LAW JOURNAL VOL. XLTI N0.1 DEFINING EXTRAORDINARY DILIGENCE 69
1997

vessel. As earlier stated, a carrier is duty bound not only to bring its passengers safely to who had arrived at their destination. In this case, plaintiffs were passengers on a
their destination but also to afford them a reasonable time to claim their baggage.72 1WA flight bound for San Francisco, California; departing from Chicago. Before
boarding their flight for San Francisco, the passengers watched from the look-out
In reaching its conclusions in Aboitiz, the Court cited American decisions to area of the airport to see if the casket containing their deceased mother was going to
support the rule that the relation of carrier and passenger continued until the passenger be loaded on the same flight, as they had presumed. They, however, did not notice
had been landed at his destination and had a reasonable opportunity to leave the any. Upon arrival in San Francisco, the plaintiffs inquired with the employees of
vessel owner's dock or premises. 73 1WA at the San Francisco airport as to the whereabouts of the casket. The carrier's
employees said they did not know. It appears also that these employees engaged in
Interestingly, the same authorities relied upon in Aboitiz were invoked by little effort, if at all, to discover the casket's whereabouts. It later turned out that the
the United States Court of Appeals in reaching a different conclusion. In Ortiz v. remains of plaintiff's mother was loaded on the wrong flight. Plaintiffs sued TWA
Greyhound Corporation/4 a decision rendered by the United States District Court of for damages.
Maryland and affirmed by the United States Court of Appeals, the passenger arrived
at his destination and alighted safely from the Greyhound bus at its terminal in In finding for the passengers, the Supreme Court invoked the carrier's duty to
Baltimore. He stayed at the terminal for 2 hours waiting for his daughter to fetch observe extraordinary diligence and said:
him until he wandered out into the terminal driveway used by Greyhound for the
operation of its buses. While there, he was struck and injured by a bus that was Airline companies are hereby sternly admonished that it is their duty not only
backing out. The District Court and Court of Appeals ::-uled that at the time of the to cursorily instruct but to strictly require their personnel to be more accommodating
incident, the passenger-carrier relation had-already terminated. The Court of Appeals towards customers, passengers and the general public. After all, common carriers
expressed: such as airline companies are in the business of rendering public serviCe, which is
the primary reason for their enfranchisement and recognition in law. Because the
It is a well settled rule of law that a carrier owes to a person in a passenger passengers in a contract of carriage do not contract merely for transportation, they
status the duty to exercise the highest degree of care and skill in everything that have a right to be treated with kindness, respect, courtesy, and consideration. A
concerns his safety. This duty is not limited to the actual transportation of passengers contract to transp·ort passengers is quite different in kind and degree from any other
but requires also that the carrier provide safe means of ingress to the station and contractual relation, and generates a relation attended with public duty. The
vehicle, safe waiting spaces and safe means of egress from the vehicle and station. ·operation of a common carrier is a business affected with public interest and must
Kaplan v. Baltimore & O.R. Company, 1594, 2076 Md. 56, 113 A. 2d 415; Dilley v. be directed to serve the comfort and convenience of passengers. Passengers are
Baltimore Transit Co. 1944, 183 Md. 557,39 A. 2d 469, 155 A.L.R. 627. See also 13 human beings with human feelings and emotions; they should not be treated as
C.J.S. Carriers ss. 678 (a), 713, 723 (1939). mere numbers or statistics for revenue. 77

They (plaintiffs) were, however, entitled to the understanding and humane

consideration called for by and commensurate with the extraordinary diligence
required of common carriers, and not the cold insensitivity to their predicament ...
The relation of carrier and passenger does not cease at the moment the The imperviousness displayed by the airline's personnel, even for just that fraction
passenger alights from the carrier's vehicle, but continues until the passenger has of time, was especially condemnable particularly in the hour of bereavement of the
had a reasonable opportunity to leave the carrier's station premises. What is a family of Crispina Saluda, intensified by anguish due to the uncertainty of the
reasonable time is, of course, to be determined from all the facts and circumstances whereabouts of their mother's remains. Hence, it is quiet apparent that private
and includes a reasonable time to care for baggage and prepare for departure. 13 respondents' personnel were remiss in· the observance of that genuine human
C.J.S. Carriers s. 565, (1939). 75 concern and professional attentiveness required and expected of them. 78

Saluda v. Court of Appeals/6 a case decided by our Supreme Court in 1992 also A more recent pronouncement of our Supreme Court relating to the issue of the
involves the carrier's duty to exercise extraordinary diligence in favor of passengers termination of the relationship between passenger and carrier appears in Philippine
Airlines, Inc. v. Court ofAppeals,79 decided in 1993. Plaintiff in this case was a passenger
on board PAL Flight 477 from Cebu bound for Ozamiz City. The routing of the flight

72 ld. at 104.
73 Id. at 102, citing 80 C.J.S. 1086, 13 C.J.S. 1073, and 14 AM. JuR. 2d. 250.
77
74 275 F. 2d. 770 (1960). Saiudo v. Court of Appeals, 207 SCRA 498, 533 (1992).
75 "ld. at 534.
Id. at 773.
79
76
207 SCRA 498 (1992). 226 SCRA 423 (1993).
 70 A TENEO LAw JoURNAL VOL. XLII N0.1 .1997 DEFINING EXTRAORDINARY DILIGENCE . 71

was Cebu-Ozamiz-Cotabato-Cebu. Fifteen minutes before landing in Ozamiz City, The rule followed by most courts, with some authority to the contrary, is that a
the pilot received a radio message that the airport was closed due to heavy rains and passenger who, without objectiDn from the carrier or its agent; alights at an .
inclement weather and that he should proceed to. Cotabato City instead. As a result, intermediate station, which is a station for the discharge and reception of passengers,
for any reasonable and usual purpose, such as that of obtaining refreshment, for
plaintiff was forced to disembark in Cotabato City. Despite the fact that plaintiff was
the sending or receipt of telegrams, or for exercise, or other matters of convenience
a stranger to the place, he was left at the airport and was not even accommodated in or necessity, does not lose his status as a passenger . . . . Clearly, a bus passenger
a Ford Fiera loaded with PAL personnel that had left the airport. PAL neither provided who disembarks at a rest stop when ordered to do so by the driver of the bus does
plaintiff with transportation from the airport to the city, nor food and accommodations not lose the status of a passenger (14 Am. Jur. 2d. pp. 246-247, Section 773) ....
for his stay in Cotabato City.

Plaintiff sued PAL for damages and sought recovery of, among others, The relation of carrier and passenger having been constituted continues until
reimbursement of his expenses while in Cotabato City. The Supreme Court held PAL the journey, expressly or impliedly contracted for, has been concluded and the
liable for breach of contract and invoked the duty of carriers to observe extraordinary passenger has left the carrier's premises, unless the relation is sooner terminated
by the voluntary act of the passenger, or unless the passenger has relinquished his
diligence. The Supreme Court spid: rights as such by some act or misconduct of his own, such as a refusal to pay fare,
refusal to produce a ticket, failure to have his ticket stamped, detaching coupons,
The contract of air carriage is a peculiar one. Being imbued with public interest, attempting to use an invalid ticket, or refusing to comply with reasonable rules of
the law requires common carriers to carry the passengers safely as far as human the carrier (10 C.J. pp. 623-624, Section 1047).
care and foresight can provide, using the utmost diligence of very cautious persons,
with due regard for all the circumstances .... Indisputably, PAL's diversion of its As a general rule a passenger does not lose his character as such by merely
flight due to inclement weather was a fortUitous event. Nonetheless, such occurrence temporarily alighting at an intermediate station, with the express or implied consent
did not terminate PAL's contract with its passengers. Being in the business of air of the carrier, for any reasonable and usual purpose, such as the procuring of
carriage and the sole one to operate in the country, PAL is deemed equipped to deal refreshments, the sending or the receiving of telegrams, or for the purpose of
with situations as in the case at bar. What we said in one case once again must be exercising by walking up and down the platform, or even motives of curiosity. (10
stressed, i.e., the relation of carrier and passenger continues until the latter has C.J. p. 628, Section 1051) This is an absolute right of the passenger, so long as his
been landed at the port of destination and has left the carrier's premises. Hence, object in alighting is not inconsistent with his character as passenger; and it is not
PAL necessarily would still have to exercise extraordinary diligence in safeguarding dependent on notice being given to the conductor of his desire to alight (13 C.J .S. p.
the comfort, convenience, and safety of its stranded passengers until they have ·1076, Section 565).82
reached their final destination. On this score, PAL grossly failed ....80
Recently, in the case of Agana v. Japan Airlines (JAL),83 the Court of Appeals
The PAL case raises another factual issue respecting the termination of the adopted the theory enunciated in the PAL case that the interruption of the carriage
passenger status - that of the interruption of the carriage. Does the interruption of does not suspend. the passenger status. In this case, plaintiffs entered into a contract
the operation or carriage suspend the passenger's status as such? In PAL, the Supreme of common carriage with JAL from Los Angeles to Manila, via N arita, Japan. Plaintiffs
Court ruled in the negative. Earlier, in Sarreal v. Soliman, 81 the Court of Appeals also arrived in Narita on June 14, 1991. As per their agreement, plaintiffs were
reached the same conclusion. · accommodated at Nikko Hotel at the expense of defendant to await their connecting
flight on the next day for Manila. On June 15, 1991, plaintiffs proceeded to the Narita
In Sarreal, the plaintiff took defendant-earner's bus from Manila to Mariveles. airport to take their connecting flight to Manila. Due to the eruption of Mt. Pinatubo,
Complying with company policy,the bus made a stop-over at the carrier's station in the flight was postponed to June 16. JAL again accommodated the plaintiffs at its
Balanga, Bataan for 30 minutes. The passengers were told by the conductor that they expense at the Nikko Hotel. On June 16, however, the connecting flight to Manila
could go down for "personal necessity." Plaintiff went down to go to the toilet. Upon was indefinitely postponed with the airport in Manila remaining closed. Plaintiffs
walking back to the bus, plaintiff was hit by another bus of the carrier entering the werealso.informed that JAL would no longer spend for their accommodations. From
station. Sarreal sued the carrier. The Court of Appeals ruled against the carrier's June 16 to 21, plaintiffs spent for their hotel accommodations and meals.
contention that Sarreal was not a passenger at the time of the injury.

Under these circumstances, the relation of passenger and carrier between the
plaintiff and the defendant companies continued to exist and was not suspended,
let alone terminated.

82
80 Philippine Airlines, Inc. v. Court of Appeals, 207 SCRA 423,433 (1993). Sarreal v. Soliman, 8 CAR (2s) 960, 966-967 (1965).
83
8t 8 CAR [2s]960 (1965). • CA-G.R. CV No. 39089, December 22, 1993 (unpublished).
 72 A TENEO LAw JouRNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE 73

The Court of Appeals upheld the judgment holding JAL liable for expenses to avail of the facilities for transportation offered by carrier; or (b)
incurred by plaintiffs during their stranding from June 16 to 21. The Court of Appeals otherwise puts himself in the care of the carrier or directly under its
said: control. 90

Similarly, appellant 'should have provided appellees who were stranded in a 2. There is no dispute that a person who, pursuant to a contract to
foreign airport without their fault with all the comfort and convenience of which it carry, comes into contact with the means of conveyance is a
was fully equipped, until they have reached their final destination. Failing on its passenger. 91
part to do so, and ui.stead declassified its stranded passengers leaving each of them
to their 0wn devises in a strange and foreign land, appellant grossly failed in its
3. Physical contact, however, is not always necessary to perfect the
duty to exercise extraordinary diligence in safeguarding the comfort, convenience,
and safety of its passengers. real contract of carriage. The carrier is required to consider the
passenger's safety "as far as human care and foresight can
In American jurisprudence, "if the carriage is delayed short of the ultimate provide." 92 Thus, the contractual duty to safely carry passengers
destination or if the passenger temporarily leaves the vehicle, it then becomes a requires carriers to provide safe means of ingress, i.e., entering the
question of fact as to whether or not the relationship of carrier and passenger conveyance, or to otherwise not do any act which might increase
terminates." 84 This question of fact is in regards to the cause for the interruption or the passenger's peril while preparing or attempting to board. 93 In
premature termination of the carriage. If the cause is the carrier's own act, like such a case, the determination of whether or not a person has become
stopping at the carrier's offiCe first to satisfy a spontaneous urge of the driver, the a passenger will depend on circumstances of place, time, submission
passenger does not lose his status while waiting at the station for the driver. 85 to control of carrier, clarity of person's intention tb take passage,
and knowledge by the carrier of that persorL.s intention. 94
If the cause is the passenger's own act or due to events beyond the control of the
carrier, the carrier-passenger relationship ordinarily terminates. In Miscionc v. Summarizing the rules regarding the termination of the passenger-carrier
Pennsylvania Railroad Company,86 the United States Court of Appeals ruled that the relationship is not as simple, however. While appearing to base their decisions on
passenger status of plaintiff terminated when he voluntarily alighted, although it American jurisprudence, our courts have been more liberal in applying these rules.
was at the wrong station. The same ruling was reached by the Court of Appeals of For purposes of this summary, therefore, we need to refer to a "Philippine rule" and
Kentucky in a case wherein the plaintiff voluntarily alighted from the conveyance an "American rule," as follows:
when he realized that he got on the wrong bus. 87 In these cases, however, the carrier
retains the duty not to discharge the passenger at a place that the carrier knows or 1. The Philippine rule is that a carrier's obligation to exercise
ought to know is unsafe. 88 "A carrier is not, however, under a duty to advise or warn exh·aordinary diligence for the safety of a passenger does not end
a passenger of the danger of traffic or to protect him after he has left the bus where until the latter has arrived at his destination. 95 This obligation
the conditions are as apparent to the passenger as to the operator of the bus." 89 continues regardless of the cause of the carrier's failure to convey
the passenger to the agreed destination.%
C. Summary

On the basis of the foregoing discussion, the rules on the commencement of the
passenger-carrier relationship may be summarized as follows:

1. The relationship of passenger and carrier begins when a person, 90

with the good faith intention of taking passage and with the express PADILLA and CAMPOS, supra note 40at 6; VnuG, supra note38at638; Vda. de Nueca v. Manila Railroad, 65
O.G. 3151 (1968).
or implied consent of the carrier, (a) presents himself as being ready 91
Transportation Co. Inc. v. Court of Appeals, 202 SCRA 574 (1991); PARAS, supra note 5, at 460,
cztmg Illinois C.R. Co. v. O'Keefe 686 Ill. 115; PADILLA AND CAMPOS, supra note 40, at 975, citing Vda. de
· Galvez v. Marikina Bus, Inc., 18 CAR [1s]807; De!Prado v. Meralco, 52 Phil. 900 (1929).
84
Henderson v. Tarver, 123 So. 2d 369 (1960). " Civil Code, art. 1755.
85 Id. "c.
angco, 38 Phil. 767 (1918); Del Prado, 52 Phil. 900 (1929); Day, 393 F. Supp. 217; Warsaw Convention,
86 284 F. 2d 428 (1960). art. .17. .
94
87
Southeastern Greyhound Lines v. Grimes, 385 S.W. 2d 189 (1964). ZOROTOVICH, 491 p. 2d. 1295; Katamay, 289 N.E. 2d. 263 (1972).
95
88 Id.; Peterson, 316 2d. 904 (1957). Aboitiz Shipping, 179 SCRA 95 (1989).
89
Southeastern Greyhound Lines, 385 S.W. 2d. 189, 191 (1964). Philippine Airlines, 226 SCRA 423 (1993).
 74 A TENEo LAw JouRNAL VOL. XLII NO. I 1997 DEFINING EXTRAORDINARY DILIGENCE . 75

2. The carrier also continues to be bound to observe extraordinary One cannot expect unanimity of opinion in the field of law. By its nature, the
diligence until the passenger has, after a reasonable time, left the law breeds argument and diverse opinions. The variance in court rulings relating to
premises used by the carrier at the point of destination. 97 the duration of a carrier's extraordinary responsibility exemplifies this fact. That as
it may be, it is imperative to deliberate on the laws and analyze the decisional rules
3. The American rule requires the carrier to continue exercising a high on this issue if they are to be of any use in defining the duration of extraordinary
degree of care in favor of passengers until the latter has safely diligence for the safety of passengers.
alighted from the vehicle at a reasonably safe and proper place. 98 If
the passenger disembarks at the carrier's premises, he remains a In the preceding ch;;tpter, this writer summarized the rules governing the
passenger until he has had a reasonable opportunity to leave the beginning and end of the passenger-carrier relationship.I 03 We have, therefore,
carrier's premises. 99 If the passenger alights at an unsafe place, answered the two questions we posed in the beginning of this work, i.e., first, when
however, the relation of carrier and passenger continues until the the carrier's obligation to observe extraordinary diligence commences; and second,
passenger, exercising ordinary care for his own safety, has had . when the obligation terminates. Because of the variance, however, between the
reasonable opportunity to reach a place of safety. 100 Philippine rule and the American rule on termination of the passenger status, this
chapter will dwell at length on the second question- when does a person lose his
In all cases, the duty to exercise extraordinary diligence is coterminous with the "passenger" status?
lifetime of the contract of carriage. Once the carrier's obligations arising from the
contract are extinguished, its duty to exercise extraordinary diligence necessarily As mentioned in the beginning of this work,l 04 law on common carriers
ends. precisely defines the duration of extraordinary diligencE;! for carriage of goods, 105 but
not that of persons. In attempting to fill this gap, this writer will be guided by pertinent
In making a reference to an American rule and a Philippine rule, this writer judicial decisions, principles of law and rules of statutory construction. A reference
does not suggest the existence of a definite demarcation between these rules in a to other laws will also be made. These are among the criteria that guide judges in
way that they are to all points irreconcilable. Our Court of Appeals, for instance, making decisions in cases where the law is silent, obscure or insufficient, pursuant to
has adopted American jurisprudence in ruling that a passenger who, without Article 9 of the Civil Code. 106
objection from the carrier or its agent or with its express or implied consent,
alights at a carrier's intermediate station for personal necessities, remains a Ultimately, the writer's objective is to determine what the law might
passenger. 101 The distinction between an American rule and a Philippine rule ·contemplate is the duration of extraordinary diligence for the safety of
has been made for purposes of this summary and to facilitate the reformulation passengers. This concept, of course, cannot be separated from the meaning and
of Article 1755, the task of the next chapter. object of extraordinary diligence. ·

IV. REMAKING ARTICLE 1755 A. Meaning, Object and Term of Extraordinary Diligence

How amazing it is that, in the midst of controversies on every conceivable subject, one 1. CONSTRUING THE LAW
should expect unanimity of opinion upon difficult legal questions! . . . The history of
scholarship is a record of disagreements. And when we deal with questions relating to Article 1733 of the Civil Code provides:
principles of law and their application, we do not suddenly rise into a stratosphere of icy
certainty. 102 Common carriers, from the nature of their business and for reasons of public policy,
are bound to observe extraordinary diligence in the vigilance over the goods and for the
- Chief Justice Charles Evans Hughes safety of the passengers transported by them, according to ail circumstances of each
case.
97
La Mallorca v. CA, 17 SCRA 739 (1966); Aboitiz Shipping, 179 SCRA 95 (1989).
98
Shanowat v. Checker Taxicar, 198 N.E. 2d. 573 (1964); Lenis, 92 So. 2d. 723 (year of promulgation
unavailable). Neidert v. Portland Stages, Inc., 376 2d. 92 (1962).
99 103
Ortiz v. Greyhound Corp., 275 p. 2d. 770 (1960). infra pp. 14-35.
104
100
Brown v. Metropolitan Tran Arthur, 171 N.E. 2d 869 (1961); Shanowat, 198 N.E. 2d 573 (1968); Pharr v. See infra pp. 3-4.
Peterson v. City of Seattle, 316 2d. 904 (1957). 1115
Civil Code, art. 1736.
101
Sarreal v. Soliman, 8 CAR 960,966-967 (1965), citing 14 AM. ]uR. 2d. 773,10 C.]. 1047, and 13 C.J.S. 565. "'Ap !U'URO TOLENTINO, COMMENTARIES & JuRISPRUDENCE OF THE Crvn. CODE OF THE PHILIPPINES 38-42 (1990);
102
Address by Chief Justice Charles Evans Hughes, American Law Institute, May 7, 1936, reprinted in 65 ARAs, supra note 5.
John Bartlett, BARTLEITS FAMILlAR QUATATIONS at 586 (1992).
 ·· ......

76 ATENEOLAw JouRNAL VOL. XLII NO .I 1997 DEFINING ExTRAORDINARY DILIGENCE . 77

Such extraordinary diligence in the vigilance over the goods is further expressed in lexemes suggest any other meaning but the act of actually transporting, removing,
articles 1734, 1735, and 1745 nos. 5, 6, and 7, while the extraordinary diligence for the or transferring from one place to another. And the law neither suggests nor intimates
safety of the passengers is further set forth in articles 1755 and 1756. that a definition other than its plain meaning should be adopted.

It is readily discernible that Article 1733- or any other law for that matter- does With regard to the word "safely," Webster's Dictionary defines "safe" to mean
not define extraordinary diligence. It does, however, make a distinction between (a) "free from harm or risk: Unhurt." 112 Ordinarily, "harm" is understood to contemplate
an "extraordinary diligence in the vigilance over the goods" and (b) an extraordinary physical harm or injuries.
diligence "for the safety of the passengers transported by them, according to all
circumstances of each case." Moreover, Article 1733 states that "extraordinary The plain meaning of the words used therefore indicates that the carrier has an
diligence for the safety of the passengers is further set forth in articles 1755 and 1756." obligation to transport the passenger safely to his destination, i.e., take steps to ensure
that he is not physically harmed, and that in performing this obligation, the carrier
Articles 1755 and 1756 in tum provide: · must observe extraordinary diligence. This duty subsists during the time that the
carrier is transporting the passenger.
Articlel755. A common carrier is bound to carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence of very cautious persons, That the duty to exercise extraordinary diligence in Articles 1733 and 1755 is
with a due regard for all the circumstances.
circumscribed to ensuring the passengers' safety may also be gleaned from Article
Article 1756. In case of death or injuries to passengers, common carriers are presumed 1757, viz.:
to have been at fault or to have acted negligently, unless they prove that they observed
extraordinan; diligence as prescribed in articles 1733 and 1755. (underscoring supplied). Article 1757. The responsibility of a common carrier for the safety of passengers as
required in articles 1733 rmd 1755 cannot be dispensed with or lessened by stipulation,
What is the meaning of the obligation "to carry the passengers safely?" What by the posting of notices, by statements on tickets, or otherwise. (emphasis supplied)
about the phrase "extraordinary diligence for safety?" Is there any significance to
the fact that the law repeatedly uses the term "safety" when it refers to transport of The same thing is suggested by the title of the Ci vii Code's subsection on carriage
persons? of passengers, which says "Subsection 3.- Safety of Passengers." This is likewise
· significant because headnotes, headings, or epigraphs of statutes "may be consulted
A cardinal rule of statutory construction says that "in construing words and •in aid of interpretation." 113
phrases used in a statute, the general rule of statutory construction is that, in the
absence of legislative intent to the contrary, they should be given their plain, ordinary, 2. LEGISLATIVE INTENT
and common usage meaning." 107 It is also accepted practice for courts to consult
dictionaries "where a statute does not define the words or phrases used therein." 108 An examination of the legislative intent behind the use of these words is likewise
important because "the intent of the legislature is the law, and the key to, and the
Ordinarily, the phrase "to carry" is understood as the act of moving, conveying, controlling factor in its construction or interpretation." 114 The report of the Code
or transferring something to another place. The Webster's Dictionary defines "carry" ··Commission is pertinent as an expression of the rationale behind the present law on
as "to move while supporting; transport; to transfer from one place to another." 109 common carriers: 115
The law itself defines "common carriers" as "persons, corporations, firms or
associations engaged in the business of carrying or transporting persons or goods, or
both." 110 Black defines "carrier" as "a person or corporation undertaking to transport
persons or property from place to place, by any means of conveyance, either
gratuitously or for hire;" and defines the word "carry" to mean "to bear, bear about,
sustain, transport, remove, or convey." 111 None of the definitions of "carry" nor its

" 107
Espino v. Cleofe, 52 SCRA 92 (1973). 112
WEBSTER's, supra note 109, at 1030.
108
Lu Do & Lu Ym Corp. v. Central Bank of the Philippines, 108 Phil. 566 (1960). 113
AGPALO, STATUTORY CONSTRUCfiON 62-63 (1990), citing Commissioner of Customs v. Relunia, 105
109 MERRIAM WEBSTER'S COLLEGIATE 0ICf!ONARY 175 (10th ed. 1994). Phil. 875 (1959); People v. Desiderio, 15 SCRA 402 (1965).
114 U.
11 0 Civil Code, art. 1732. . mted States v. Tamparong, 31 Phil. 321 (1915).
5
Ill BLACK'S LAw DICTIONARY (5th ed. 1979). REPoRT OF THE CODE COMMISSION ON THE PROPOSED CIVIL CODE OF THE PHiuPPINES 64-67 (1948).
 78 A TENEO LAw JoURNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE 79

As for the safety of passengers, the responsibility of common carriers.. .is based The law on common carriers itself dictates this procedure. Thus, Article 1766 of
on the standards of care in obligations in general. the Civil Code provides that "in all matters not regulated by this Code, the rights and
obligations of common carriers shall be governed by the Code of Commerce and by
special laws."
The Commission believes that the Anglo-American law on the subject should
be adopted.... a. Laws On Carriage of Passengers

(1) Und2r the Code·of Commerce

The nature of the business of common carriers and the exigencies of public The Code of Commerce does not directly supply the omission in the Civil Code.
policy demand that they observe extraordinary diligence. Its ttansport provisions largely cover rules on the transport of goods and limits its
118
treatment of transport of persons to a section entitled "Passengers of Sea Voyage."
This section does not mention the diligence required of carriers for passenger transport.
That the business of common carriers is impressed with a special duty is Its Article 700, however, is significant:
recognized in the Philippines through the laws which subject the same to control
and regulation by the Public Service Commission. The public must of necessity rely on Article 700. In all that relates to the preservation of order and discipline on board the
the care and skill of common carriers in the vigilance over the goods and the safety of the . vessel, the passengers shall be under the control of the captain, without any distinction
passengers. whatsoever. (emphasis supplied)

The wording of the law is indicative of two (2) legal propositions: first, that the
carrier has power to control, or otherwise direct the movement of persons who have
Furthermore, with the modern development of science and invention, transportation entered into contracts of carriage with it; and second, that this power can only be
has become more rapid, but more complicated and hazardous, so the public is forced to trust exercised if these persons are in the custody of the i.e., they are on board the
all the more in the utmost diligence and foresight of common carriers, whether by land,
vessel. Consequently, persons who are not on board the vessel are not subject to the
sea, or air. (emphasis supplied)
captain's disciplinary powers, and are not "passengers."
The stated purpose of the law also supports the theory that, in imposing the
extraordinary diligence requirement, both the Code Commission and Congress (2) Under Special Laws
contemplated the regulation of the manner carriers operated their conveyances, with
the end in view of making the voyage safe for the passengers. Thus, the Supreme The Warsaw Convention is an international treaty to which the Philippines is120a
Court has expressed that, party. 119 It applies to all international transportation performed by aircraft for hire.

indeed, in approving said draft, Congress must have concurred with the Commission As an international treaty, it forms part of the Philippine legal system and may
121
that by requiring the highest degree of diligence from common carriers in the safe be deemed within the term or is in the nature of a "speciallaw." Article 17 of the
transport of their passengers and by creating a presumption of negligence against Warsaw Convention provides:
them, the recklessness of their drivers which is a common sight even in crowded
areas and, particularly, on the highways throughout the country may, somehow, if Article 17. The carrier shall be liable for damage sustained in the event of the
not in a large measure, be curbed. 116 or wounding of a passenger or any other bodily injury suffered by a passenger,
if the accident which caused the damage so sustained took place on board the aircraft or in
3. RELATED LAWS the course of any of the operations of embarking or disembarking. [emphasis supplied]
It is settled that "where the law governing a particular matter is silent on a Article 17 provides for time parameters during which the carrier can be held
question at issue, the provision of another law governing another matter may be
responsible for a passenger's injury or death. It again highlights the rule that the
applied where the underlying principle or reason is the same." Ubi eadem ratio ibi
eadem disposito. 117
118
Code of Commerce, arts. 693-705.
119
51 O.G. 5084 (1955); Santos v. Northwest Airlines, 210 SCRA 256 (1992).
116
30 SCRA 69 (1%9). '"_Warsaw Convention, art. 1(1).
117
PARAS, supra note 5. CONST. art. IIx, § 2.
 80 A TENEO LAW JOURNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE . 81

passenger must be in the custody of the carrier or that the carrier is otherwise in a point, but involved in the activity of looking for immigration. More importantly, plaintiff's
position to control or direct the movement of the passenger if it is to be held liable for remaining activities (e.g.immigration, customs) were not conditions imposed by the airline
injury or death. ln this case, the accident which causes injury or death must have for disembarking. [emphasis supplied] 125
occurred in either of three (3) situations: (a) while the passenger is on board the
aircraft; (b) while the passenger is engaged in the course of any of the operations of b. Laws on Carriage of Goods
embarking; or (c) disembarking. Obviously, it is only in these cases where the carrier
is able to ensure the passenger's safety or can subject the passenger to its regulations The law, for obvious reasons, distinguishes between the extraordinary diligence
regarding safety. required in the carriage of goods and that required in the carriage of passengers. The
rule relating to the time during which the carrier is required to exercise extraordinary
There is, of course, no dispute as to when the passenger is on board. Like Article diligence for goods is, however, relevant to our discussion because it is also based on
700 of the Code of Commerce, it denotes a situation where the passenger is physically "custody'' of the subject or object of the carriage.
on the carrier's conveyance. But unlike the Code of Commerce, the Warsaw
Convention extends the time frame during which the carrier is legally presumed to (1) Under the Civil Code
have custody of the passenger or be in a position to control or restrict the passenger's
movement, i.e., to procedures of embarking or disembarking. Article 1736 of the Civil Code, in defining the duration of extraordinary
responsibility for the vigilance over goods, refers to a time when the carrier is in
The scope of "embarking" was the subject of Day v. Tram:, World Airlines, Inc_P 2 possession of or has custody over the goods and is in a position to ensure that they
In Day, the passengers had received boarding passes, proceeded through passport are not lost or destroyed or do not deteriorate. It provides:
and currency control pursuant to TWA's instructions, entered the lounge area, and
begun to form a line at the gate for searches when a terrorist attack occurred, causing Article 1736. The extraordinary responsibility of the common carriers lasts
from the time the goods are unconditionally placed in the possession of, and received
injuries to the passengers. In a suit against TWA, the New York District Court ruled by the carrier for transportation until the same are delivered, actually or
that the passengers were in the act of embarking under the Warsaw Convention constructively, by the carrier to the consignee, or the person who has a right to
because they were, at the time, undertaking acts under the direction of the carrier as receive them.
a condition for travel.
. Thus, if the goods are lost or destroyed before they are "unconditionally placed
The other end of the time frame- "disembarking" -is the subject of Knoll v. Trans in the possession of the carrier'' for transportation, the carrier is not presumed to
World Airlines.123 Here, the District Court of Colorado ruled against a passenger who have acted negligently. Also, if the goods deteriorated after they had been" delivered,
sustained injuries after she left the aircraft, walked 300 yards, and fell at a concourse actually or constructively, by the carrier to the consignee, or the person who has a
of the airport, thus: right to receive them," the carrier is not at fault, there being no duty to exercise
_extraordinary diligence at that time.
Courts have consistently refused to extend coverage of the Warsaw Convention
to injuries incurred within the terminal, except in those cases in which plaintiffs were In Lu Do & Lu Ym Corporation v. Binamira, 126 the Supreme Court upheld the
clearly under the direction of the airlines."'
&tipulation that considered the goods delivered upon being taken by customs
authorities because the carrier would no longer have control over the goods:

These provisions (referring to Articles 1734 -1736) apply only when the loss,
Plaintiff was not disembarking when she fell. Plaintiff was in a concourse of destruction or deterioration takes place while the goods are in the possession of the
the airport which was not near enough to the TWA gate from which she had walked carrier, and not after it has lost control of them. The reason is obvious. While the goods
to warrant a finding of liability. She was not under the control of airline agents at that are in its possession, it is but fair that it exercise extraordinary diligence in protecting them
from damage, and if loss occurs, the law presumes that it was due to its fault or negligence.

While we agree with the Court of Appeals that while delivery of the cargo to
122
393 F. Supp. 217 (1975). the customs authorities is not delivery to the consignee x x x we believe, however,
123
610 F. Supp. 808, 844 (1985). that the parties may agree to limit the liability of the carrier considering that the
124
Knoll, 610 F. Supp. 808, 809 (1985), citing Schmid Kunz v. Scandanavian Airlines System, 628 F. 2d
1205; Maugnie v. Compagnie National Air Force, 549 F. 2d 1256; MacDonald v. Air Canada, 459 F. 2d
1402; Rolnick v. El Allsrael Airlines Ltd., 551 F. Supp. 261; Ricotla v. Iberia Lineas Dereas de Espana,
482 F. Supp. 497.
 82 A TENEO LAw JOURNAL VOL. XLII N0.1 DEFINING EXTRAORDINARY DILIGENCE . 83

goods have still to go through the inspection of the customs authorities before they
are actually turned over to the consignee. This is a situation where we may say that the 4. The carrier violates its duty to exercise extraordinary diligence for the safety
carrier loses control of the goods because of a custom regulation and it is unfair that it be of passengers when the passenger either dies or is injured. In such a case, the carrier
made responsible for what may happen during the interim. 127 is presumed negligent. 130

(2) Under the Warsaw Convention In fine, the duty of the carrier to exercise extraordinary diligence when
transporting persons is limited to ensuring his safety, i.e., keeping the passenger out
The same is true with the Warsaw Convention. Its Article 18 reads: of harm's way. That is notto say that the carrier has no other obligation. For instance,
a passenger has "a ri;;ht to be treated by the carrier's employees with kindness, respect,
Article 18. (1) The carrier shall be liable for damage sustained in the event of courtesy and due consideration." 131 This obligation, however, is not based upon the
the destruction or loss of, or of damage to, any checked baggage, or any goods, if duty to exercise extraordinary diligence under Articles 1733 and 1755 but upon the
the occurrence which caused the damage so sustained took place during the law on Human Relations.132
transportation by air.
Consistently, the established rule is that the carrier-passenger relationship does
(2) The transportation by air within the meaning of the preceding paragraph
not commence until the passenger presents himself as being ready to avail of the
shall comprise the period during which the baggage or the goods are in charge of
the carrier, whether in an airport or on board an aircraft, or in the case of a landing facilities for transport offered by the carrier or otherwise puts himself in the care of
outside an airport, in any place whatsoever. the carrier or directly under its control. 133 It is only when the carrier is in a position to
.control or otherwise restrict the mobility of the passenger that it car. be in a position
Again, to hold the carrier liable, the destruction, loss or damage must take place to ensure his safety. Thus, when the passenger has been discharged safely at his
during the time that the goods are "in the charge of the carrier." Should destruction, destination and leaves the carrier's premises, the carrier's duty to exercise
loss or damage take place at a time when the goods are not in the charge of the extraordinary diligence ends. Obviously, the carrier is no longer in a position to
carrier, the latter would not be liable under the terms of the Warsaw Convention. ensure the passenger's safety at that time.

Considering, therefore, that the meaning and object of the extraordinary diligence
4. SUMMARY mandated in the law refer to the obligation of the carrier to secure the passenger's
safety, a concept precisely related to injury and death, that duty is co-extensive with
In conjunction with the foregoing discussion, Articles 1733, 1755 and 1766 of the the carrier's ability to ensure that the passenger is safe from physical harm. Stated
Civil Code may be read as establishing the following principles: differently, the duty to exercise extraordinary diligence would then end when the
carrier loses that ability.
1. Carriers are required to observe extraordinary diligence in the performance
of their obligations as such. If they are transporting goods pursuant to a contract B. Philippine Jurisprudence
with a shipper, they must observe extraordinary diligence in the vigilance over these
goods. If they are transporting passengers pursuant to a contract with them, they must . In Chapter III of this work, the writer discussed the rules on termination of the
observe extraordinary diligence for the safety of these passengers. In every case, a contract relationship of carrier and passenger as established in Philippine jurisprudence. 134
of carriage must be in effect to bind the carrier to the shipper or passenger. 128 There, we referred to cases decided by our Supreme Court, namely Philippine Airlines
v. Court of Appeals,l 35 Saluda v. Court of Appeals,l 36 Aboitiz Shipping Corporation v. Court
2. Extraordinary diligence "for the safety of the passengers" means that the of Appeals,137 and La Mallorca v. Court of Appeals. 138 A case decided by the Court of
carrier must "carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with a due regard for
all the circumstances." 129
Zulueta v. Pan Am, 43 SCRA 397 (1972); Air France v. Carrascoso, 18 SCRA 155 (1966).
3. The carrier's obligation to observe extraordinary diligence subsists during '132 C"Vil
1 Code, arts. 19,20 & 21; Air France, 18 SCRA 155 (1966).
the carriage or transport. 133
. PADILLA AND CAMPOS, supra note 40, at 6; VrruG, supra note 38 at 683; Vda. de Nueca, 65 O.G. 3151 (1968).
134
See infra pp. 20-32.
127 135
ld. atp. 124 (emphasis supplied); Lu Do & Lu Ym Corp. v. Central Bank of the Philippines, 108 Phil. 566 226 SCRA 423 (1993).
(1960). -,,.2
07 SCRA 498 (1992).
128
Civil Code, arts. 1733 and 1755.
179 SCRA 95 0989).
129
Id., art. 1755.
SCRA 739 (1966).
 84 A TENEO LAw JouRNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE ·85

Appeals, Agana v. Japan Airlines, 139 was also discussed. Analyzing now these cases, carrier is or can be in a position to ensure that the passenger is safe. This is precisely
one will see a tendency to unjustifiably extend the term of extraordinary diligence. why the commencement of the carrier-passenger relationship requires the passenger
to place himself under the care of the carrier142 and is deemed to continue while the
143
For the reader's convenience, this writer will reiterate the relevant facts of these passenger is and remains "under the proper care and charge of the carrier."
cases to provide the background for the discussion hereunder.
In this case, the Court would have the carrier exercise extraordinary diligence
In Philippine Airlines v. Court of Appeals, PAL operated a flight from Cebu to even after its passenger had disembarked from the aircraft, left the airport, entered
Ozamiz and Cotabato. From Cotabato, the flight would return to Cebu and continue Cotabato City proper, stayed overnight in the city, took another flight the following
to Manila. Plaintiff, Pedro Zapatos, boarded the flight in Cebu bound for Ozamiz. _ day to Iligan, travelled by land to Kolambugan, and even took a launch to finally
Fifteen (15) minutes before landing at Ozamiz, the pilot received a radio message bring him to Ozamiz.
that the airport was dosed due to heavy rains and inclement weather. Consequently,
the flight bypassed Ozamiz and went straight to Cotabato. Upon arrival in Cotabato, This is obviously erroneous. One of the consequences of the duty to exercise
PAL informed the Ozamiz-bound passengers of their options to return to Cebu, or extraordinary diligence is that in case of injury or death, the carrier is presumed
remain in Cotabato and take the next available flight to Ozamiz three days later. The negligent. If the Court were correct, it would follow that PAL would be presumed
passengers were also informed that there were only six (6) seats available on the negligent if Mr. Zapatos was injured at any point between Cotabato and Ozamiz -
Ozamiz-Cebu leg of the flight as there were already confirmed passengers for Manila, say, while he was on board the plane which took him to Iligan, or the launch which
and that the basis for priority would be the check-in sequence at Cei:m. Mr. Zapatos took him to Ozarniz- which is absurd because PAL would not then be in a position to
chose to return to Cebu but was not accommodated on the flight due to the priority ensure the passenger's safety. Such a proposition would also give rise to two (2)
listing. He was left at the airport without PAL providing him with transportation contracts of carriage concurrently existing- the Cebu to Ozarniz contract overlapping
from the airport to the city proper nor food and accommodation for his stay in with either the Cotabato to Iligan contract (air transport), the Iligan to Kolambugan
Cotabato City that night. The following day, Mr. Zapatos flew on PAL to Iligan City ·· contract (land transport), and the Kolambugan to Ozamiz contract (water transport).
and from there hired a car to Kolambugan, Lanao del Norte, finally reaching Ozamiz The Court's theory would also require two (2) carriers to simultaneously observe
City by crossing the bay in a launch. 140 · extraordinary diligence! And if, indeed, he was injured, would the passenger be able
to invoke the presumption of negligence against both carriers?
Zapatos then sued PAL for damages. Litigation eventually reached the Supreme
Court which affirmed a Court of Appeals decision finding PAL liable. In deciding Under American jurisprudence, the relationship of carrier and passenger may
for plaintiff, the Supreme Court ruled that while the diversion of the flight to Cotabato terminated even before the passenger arrives at his destination either by the
was a fortuitous event, "such occurrence did not terminate PAL's contract" with Mr. act of the passenger, or by the carrier for some lawful cause. 144 In this case,
Zapatos because "the relation of carrier and passenger continues until the latter has the time Mr. Zapatos safely disembarked from the aircraft that had brought him to
been landed at the port of destination and has left the carrier's premises." Thus, he was no longer a passenger. It may not, therefore, be argued that PAL
according to the Court, "PAL necessarily would still have to exercise extraordinary diligence Mr. Zapatos continued to be bound by the contract of carriage after the latter
in safeguarding the comfort, convenience, and safety of its stranded passengers until they .·had disembarked in Cotabato City. The Court had, after all, conceded that the failure
have reached their final destination." 141 In the case of Mr. Zapatos, PAL's duty to exercise .of PAL to transport the passenger to Ozarniz was caused by caso fortuito. 145 Therefore,
extraordinary diligence would, according to the Court, end only when he had reached PAL could not have been made liable for its failure to perform under the contract.
Ozamiz. The failure of PAL to provide Mr. Zapatos with hotel accommodations in
Cotabato was, therefore, a breach of that duty. The relationship of carrier and passenger had clearly ceased in Cotabato when
to caso fortuito, the carrier could not bring the passenger to his destination. Under
With all due respect to the Court's holding, it is doubtful whether the duty to . 1266 of the Civil Code, "the debtor in obligations to do shall also be released
exercise extraordinary diligence under Articles 1733 and 1755 of the Civil Code can the prestation becomes legally or physically impossible without the fault of the
correctly serve as the basis of liability for breach even when the passenger was no
longer within the carrier's custody or could be subject to any degree of direction or
control. In imposing the duty of extraordinary diligence, the law presumes that the
142
Vda. de Nueca v. Railroad, 65 O.G. 3151 (1968); Zorotovich v. Washington Toll Bridge Authority, 491 p.
2d 1295 (1971).
. "-'VITUG, supra note 38; People's Checker Cab Company v. Dunlap, 307 P. 2d 833 (1957).
139 CA-G.R. CV No. 39089, December 22, 1993 (unpublished). "'G . & F. R.Co. v. Thigpen, 80 SE 628 (year of promulgation unavailable); Fremont v. E. &
C eorgta M.V.R.
140
226 SCRA 423,428 (1993). •. 0· v. Hagblad, 101 NW 10033 (year of promulgation unavailable); 14 AM. JuR. 2d. 772.
141 Id. at 433 (emphasis supplied). .PhiliooinP Airlines v. Court of Appeals, 226 SCRA 422, 433 (1993).
 86 A TENEO LAw JoURNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE 87

obligor." Also, the law considers caso fortuito as a legal excuse for the non- Wanting to travel on the same flight as their mother's, plaintiffs purchased
performance of contractual obligations.146 To say, therefore, that the duty of PAL to carriage on TWA for travel between Chicago and San Francisco and on PAL from San
exercise extraordinary diligence ceased only when Mr. Zapatos had reached his Francisco to the Philippines. On the day of travel, plaintiffs checked in for their
destination, notwithstanding the force majeure which caused the carrier's inability flight to San Francisco. While waiting to board the flight, plaintiffs observed the
to perform the carriage, is to stretch the limits of the duty to observe extraordinary loading on the aircraft from the look-out area but did not notice anything that could
diligence beyond the lifetime of the contract of carriage. have contained a casket being loaded. Upon arrival in San Francisco, plaintiffs went
to a TWA counter to inquire if their mother was on the flight. TWA personnel only
The Court also expanded the meaning and object of extraordinary diligence from replied that they did nut know. After several hours of waiting, plaintiffs were
that which requires the carrier to ensure the passenger's safety. It expressed that eventually informed that the shipment was loaded on a flight that left Chicago for
the carrier also had an obligation to "safeguard the comfort and convenience" of the San Francisco much earlier than plaintiffs', but that the shipment was withdrawn
passenger, and that the performance of that obligation required extraordinary upon arrival in San Francisco because it had been belatedly determined that the casket
diligence. 147 contained the body of another person. The shipment was delayed by one day because
of the error.
This is not the first time that the Supreme Court dealt with the issue of a carrier's
obligations towards a passenger whose destination had been by-passed. In Sweet The Saludo's sued TWA and PAL for damages. The complaint was, however,
Lines v. Court of Appeals,l48 the carrier operated the M/V Sweet Grace which had a dismissed by the trial court. Further appeal to the Court of Appeals was also
weekly Cebu-Catbalogan-Tacloban-Manila-Cebu run. The plaintiffs had boarded unsuccessful. Ultimately, the case came before the Supreme Court which agreed
the M/V Sweet Grace in Cebu City bound for Catbalogan, Samar. The vessel left with the trial court and the Court of Appeals that neither TWA nor PAL could be
Cebu more than a day late due to engine repair and, to plaintiffs' surprise, headed faulted for the switching of the casket containing the remains of plaintiffs' mother
for Tacloban City. The passengers were informed that the vessel would by-pass with that of another deceased. It upheld TWA's defense that it received for shipment
Catbalogan and proceed straight to Manila. The passengers were forced to disembark a casket labeled "Remains of Crispina Saludo" and that, being hermetically sealed
in Tacloban and had to arrange for their own transport to Catbalogan. by the Philippine Consul, it relied on the representation that it did contain the remains
of Mrs. Saludo. The Court, however, ordered TWA to pay plaintiffs nominal damages
For by-passing their destination, the passengers sued Sweet Lines. The Supreme for the insensitive and cold treatment given them by the TWA employees at the San
Court affirmed the lower courts' judgments finding the carrier liable because the .. Francisco Airport. The Court gave its reason for holding TWA liable:
cause of the inability of the carrier to bring the passengers to Catbalogan was not
force majeure. 149 Notably, the Court in Sweet Lines did not judge the carrier against The records reveal that petitioners, particularly Maria and Saturnino Saludo,
the standard of extraordinary diligence under Articles 1733 and 1755, even if Sweet agonized for nearly five hours, over the possibility of losing their mother's mortal
Lines was admittedly a common carrier. Obviously, the plaintiffs there were no longer remains,. unattended to and without any assurance from the employees of TWA
that they were doing anything about the situation. This is not to say that petitioners
"passengers" as to be entitled to extraordinary diligence to ensure their safety after were to be regaled with extra special attention. They were, however, entitled to the
they disembarked in Tacloban, even if such was against their will. The Court, understanding and humane consideration called for by and commensurate with the
therefore, does not cite the rule that the duty to observe extraordinary diligence extraordinary diligence required of common carriers and not the cold insensitivity to
"lasts until the time that the passenger is landed at his destination." their predicament. 150 (emphasis supplied)

In Saluda v. Court of Appeals, the Supreme Court also incorrectly relied on the law A closer examination of the circumstances obtaining in the case however, shows
on extraordinary diligence to find the carrier liable for damages. Here, plaintiffs' that the duty to exercise extraordinary diligence could not have correctly served as
mother had died in Chicago in the United States. They then made arrangements to the basis for the carrier's liability.
ship her remains from Chicago to Cebu City. Airway bills were issued to carry the
casket containing the deceased's remains on TWA from Chicago to San Francisco, . The duty to observe extraordinary diligence necessarily arises out of the contract
and on PAL from San Francisco to Manila and Cebu. ·of common carriage. At the time the Saludo's were subjected to the treatment
•·· complained of, they were not passengers in whose favor the carrier needed to observe
extraordinary diligence. While the plaintiffs did in fact travel on TWA from Chicago
San Francisco, they had safely arrived in San Francisco and had completely
disembarked from the aircraft which had taken them there. 151 Clearly, the obligation
"'Civil Code, art. 1174.
"'Philippine Airlines, 226 SCRA 422, 433 (1993).
14
' 121 SCRA 769 (1983). .Saluda, 207 SCRA 98 (1992). (emphasis supplied)
149
Sweet Lines, 121 SCRA 769, 773 (1983). Id. atS31.
 88 A TENEO LAw]OURNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE . 89

to safely transport the plaintiffs to San Francisco had been completely performed by .father was on the running board receiving the bayong from the conductor, the bus
TWA Under the Civil Code, an obligation is extinguished by performance, which in started to move. Raquel was run over by the bus. The Supreme Court held that the
turn means the complete rendition of the service. 152 Thus, is settled that the carrier breached its duty to exercise extraordinary diligence in favor of Raquel who
relationship of carrier and passenger terminates where a passenger vohintarily leaves remained a passenger:
the carrier's conveyance with an intent to abandon his journey. 153 Considering,
therefore, that all of TWA's obligations to the plaintiffs had been extinguished at the It has been recognized that the relation of carrier and passenger does not cease
time they were subjected to the "insensitive" treatment, there is no justification for at the moment the passenger alights from the carrier's vehicle at a place selected by
using the standard of extraordinary diligence. To hold otherwise would be to extend the carrier at the point qf destination, but continues until the passenger has had a
the duration of extraordinary diligence beyond the lifetime of the contract, which is reasonable time or reasonable opportunity to leave the carrier's premises. And
not what the law intends. what is a reasonable time or a reasonable delay within this rule is to be determined
from all the circumstances.
Secondly, plaintiffs were no longer in the custody of the carrier at the time they
were subjected to the treatment complained of. The carrier, therefore, could not have
been in a position to ensure their safety. And assuming that the compensable injury The presence of said passengers near the bus was not unreasonable and they
are therefore to be considered still as passengers of the carrier, entitled to the
in the law includes the non-physical or moral type of injury suffered by plaintiffs, the protection under their contract of carriage. 158
latter were not in the process of "disembarking" either as that term is understood
under the Warsaw Convention. 154
The Court in La Mallorca also appears to have extended the duty of the carrier to
exercise extraordinary diligence beyond the lifetime of the contract. One must note
Again, this writer does not propose that the poor treatment given by TWA's that Raquel's contract of carriage with her father was a separate contract. While it is
employees to plaintiffs was excusable. Plaintiffs did not deserve the cold-hearted true that the carrier-passenger relationship does not end until after the I_apse of a
reception given by TWA's employees at the San Francisco airport, especially given reasonable time allowed the passenger_to leave the carrier's premises, such as the
their bereavement. But this obligation does not arise from contract or from the duty time required to retrieve luggage, this may have been relevant if the father was the
imposed by law upon carriers to observe extraordinary diligence, but conceivably one injured. It was the father who had returned to the bus to retrieve luggage left by
from the precept that all persons must "in the exercise of his rights and in the him and his presence on the bus may arguably be reasonable. In the case of Raquel,
performance of his duties, act with justice, give everyone his due, and observe honesty .however, it is clear from the recital of facts in the case that she had disembarked from
155
and good faith." Thus, if the employees' conduct constituted willfully causing loss the vehicle and had in fact been led to a place of safety by her father (a "shaded spot
or injury to plaintiffs "in a manner contrary to morals, good customs or public on the left pedestrian side of the road about four or five meters away from the vehicle").
156
policy," an action against TWA could be perhaps instituted. She was, therefore, no longer a passenger at the time of the injury and the carrier no
longer owed a duty to exercise extraordinary diligence. This is the consistent teaching
In La Mallorca v. Court of Appeals, 157 a couple was traveling with their children on of American jurisprudence. 159
a Pambusco bus from San Fernando to Anao, Mexico, Pampanga. The bus arrived in
Anao and stopped to allow the couple and their children to get off. The father was In Lewis v. Goodman/ 60 the victim, a "little girl," boarded the bus of defendant
the first one to get down the bus, followed by his wife and children. He then led carrier. Upon reaching her destination, she alighted safely. Remembering that her
them to a shaded spot on the left pedestrian side of the road about four or five meters books remained in the bus, she did not leave the place where she alighted, hoping
away from the vehicle. He then returned to the bus to retrieve a bayong that was still the bus would immediately return. The bus driver, noticing that some books were
on the bus. In doing so, his young daughter, Raquel, followed him and while the left in the bus, investigated its ownership. Discovering that it belonged to the girl
Who just alighted and still seeing her at the last stop, the driver turned his bus around
. :md stopped alongside the girl. The driver handed over the books as the girl reached
.m the bus to receive them. Immediately thereafter, the girl "darted right across in
.·. fron.t of the bus" and was struck by an overtaking automobile.
152 Civil Code, arts. 1231 & 1232.
153
Murray v. Cedar Rapids City Lines, 48 NW 2d 256 (year of promulgation unavailable); Buckley v.
Old Colony R. Co., 36 NE 583 (year of promulgation unavailable); 14 AM. JuR. 2o. 772.
154
Knoll v. TWA, 610 F. Supp. 844 (1985).
155
Civil Code, art. 19. "'La Mallorca v. Court of Appeals, 17 SCRA 743,744 (1996).
156
!d., art. 21. 159
See Seiler v. St. Louis Public Service Company, 295 SW 2d 393 (1956), and cases cited thereunder.
157
17 SCRA 739 (1966). 92 So. 2d 723.
 '•

90 A TENEO LAw JoURNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE 91

. Plaintiff argued that, "although the little girl had gotten out of the bus before There is nothing in the decision, however, which indicates that the pier where
and had come back merely for the purpose of retrieving her books, she nevertheless Viana disembarked was operated· or controlled by the carrier as to place him within
retained her status as a passenger and that, therefore, the transit company owed her its custody or be subjected to its directions. Consequently, may then be argued
that high degree of duty which is due to a passenger." 161 The Court of Appeals of that the passenger-carrier relationship had terminated upon his having disembarked
Louisiana ruled: in safety at that place. 165

The contention of plaintiff that the little girl retained her status as a passenger Furthermore, when Viana remembered that he still had something on the vessel,
and that, therefore, at the time of the accident, the Transit Company owed to her approximately an hour had pu.ssed since he disembarked at a safe place. In a case
that very high degree of care which a common carrier owes to its passengers is, we involving similar facts but a much shorter time frame, the Supreme Court of Oregon
think, not well founded. held that the plaintiff was no longer a passenger. In this case,' 66 the passenger had
· boarded a bus, carryh1g a small sack of fruit and fruit juices. She deposited the sack
The child had left the bus on its downriver trip, and, through no fault of the
driver, her little brother had forgotten his books on the bus. The usual rule is that · .behind the driver's seat. When she arrived at her destination, the door was opened
when a carrier deposits a passenger at a safe place and the passenger has alighted for her to leave the bus. Right after she had alighted from the bus, she remembered
, the status of passenger comes to an end and that thereafter the duty owed to the her package and attempted to retrieve it before the bus departed. In so doing, plaintiff
former passenger is only the duty of ordinary care. 162 fell and was injured. Her suit against the carrier was, however, dismissed. The court
found that "the contractual obligation of the carrier of safe carriage ceased when the
Furthermore, the family in La Mallorca did not alight at a Pambusco termi.nal plaintiff departed from the bus and reached a place of safety."
but on a public street or highway and had moved to a shaded spot on the left .
pedestrian side of the road, about four or five meters away from the bus. Imaginably, In Agana v. Japan Airlines, 167 the Court of Appeals ruled that a common carrier
they were already at the other side of the road. In any case, they were not and could had an obligation to provide hotel accommodations and meals in favor of passengers
not have been in the carrier's premises. Indeed, while the law grants the passenger who had been stranded at a point between their origin and destination,
"reasonable time" to leave the carrier's premises, it necessarily implies that the notwithstanding the fact that the cause of the passengers' stranding was force majeure.
passenger must be in the carrier's premises during the length of what might be court again relied on the duty of the carrier to observe extraordinary diligence
"reasonable time." · - the law.

Aboitiz Shipping Corporation v. Court of Appeals 163 reiterates the rule laid down in In this case, plaintiffs were passengers of JAL travel from Los Angeles to Manila.
La Mallorca. Here, the passenger, Anacleto Viana, had boarded the carrier's M/V stipulated, the flight would first take them to Narita, Japan where they would
Antonia in San Jose, Mindoro Occidental. Upon arrival at the Port of Manila, Viana fltay overnight in a hotel at JAL' s expense and continue with their flight to Manila the
disembarked. An hour after the passengers had disembarked, unloading of cargoes following day.
by Pioneer Stevedoring Company began. It was at about this time when Viana
returned to the vessel, remembering that he had left something on the vessel. While On June 13, 1991, plaintiffs left Los Angeles for Narita. They arrived Narita in
he was pointing to someone where his baggages were, the crane unloading the cargoes afternoon of June 14, 1991 and repaired to the Nikko Hotel in Narita where they
hit him, causing his death. The Supreme Court held that the carrier was liable and the night. On June 15, 1991, plaintiffs checked in for their flight to Manila. This
that Viana's status as passenger had not terminated. The Court again invoked the however, was postponed to June 16 because Mt. Pinatubo had erupted in the
duty of the carrier to exercise extraordinary diligence. It cited the rule that the relation Philiopines, causing the closure of the airport. Plaintiffs again stayed at the Nikko
of carrier and passenger does not terminate until the passenger has, after reaching that day, for which stay JAL paid. On June 16, plaintiffs could not be flown on
his destination, "safely alighted from the carrier's conveyance" or had a reasonable scheduled flight either because the airport in Manila remained closed, still due to
opportunity to leave "the vessel owner's dock or premises," including a time "to see effects of the Mt. Pinatubo eruption. The flight was postponed indefinitely. JAL
after his baggage and prepare for his departure." 164 •I'med plaintiffs that it would no longer pay for their hotel or meal expenses.
LJlaintiffs continued to stay at the Nikko Hotel from June 16 to 21 and paid their own
and meals. On June 22, 1991, the airport in Manila having reopened,
plamtiffs were finally flown by JAL to Manila.

161
Id. at 727. 16s
.· Lewis v. Court of Appeals, 92 So. 2d 723 (year of promulgation unavailable); Ortiz, 275 F 2d 770
162 Id. year of promulgation unavailable).
63
' 179 SCRA 95 (1989). v. Portland Stages Inc., 376 p. 2d 92 (1962).
164
Aboitiz v. Court of Appeals, 179 SCRA 95, 102 (1989). CV No. 39089 (December 22, 1993).
 92 A TENEO LAw JoURNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE 93

Plaintiffs sued JAL for damages arising from the "stubborn refusal by defendant As explained by the Supreme Court in British Airways v. Court of Appeals,173 there
to provide plaintiffs with hotel accommodations and meals while they were stranded is a distinction between two (2) aspects of the contract of common carriage: (a) "the
as passengers" in Narita. 168 The trial court found JAL liable for these expenses, contract to carry (at some future time), which contract is consensual and is necessarily
among others, which judgment was affirmed by the Court of Appeals. The latter perfected by mere consent" and (b) "the contract of carriage or of common carriage
held that: itself which should be considered as a real contract for not until the carrier is actually
used can the carrier be said to have already assumed the obligation of a carrier." The
appellant should have provided appellees who were stranded in a foreign airport without duty to observe extraordinary diligence as imposed by Article 1755 is to be exercised
their fault with all the comfort and conveniences of which it was fully equipped, until they only "in the second kind, that is the "real contract of carriage." 174 In the case of the
have reached their final destination. Failing on its part to do so, and instead declassified plaintiffs in Agana, the existing obligation which bound JAL to them during their
its stranded passengers leaving each of them to their own devises in a strange and stay in Narita was an obligation to carry- which obligation JAL performed after the
foreign land, appellant grossly failed in its duty to exercise extraordinary diligence in cessation of the force majeure. Clearly, they were not "passengers" during the time
safeguarding the comfort, convenience and safety of its passengers. 169 .. that they were staying at the Nikko Hotel.
As explained above, the duty to exercise extraordinary diligence cannot extend The Code of Commerce175 treats of the obligations of carriers and passengers in
in favor of passengers who are not on board the means of conveyance, or at least are
.cases of the interruption or suspension of a journey. Article 698 provides:
in the process of embarking or disembarking under the terms of the Warsaw
Convention. 170 Plaintiffs, during the time they could not be flown out of Narita, were
not on board the carrier or in the process of embarking or disembarking. Article 698. In case a voyage already begun should be interrupted, the
shall be obliged to pay the fare in proportion to the distance covered,
The fact, however, that the passengers were merely transiting in Narita brings without right to recover for losses and damages if the interruption is due to fortuitous event
us to the specific issue raised in Agana- i.e., whether or not the carrier had an obligation or to force majeure, but with a right to indemnity if the interruption should have been
to provide living expenses or hotel accommodations and food in favor of the caused by the captain exclusively. if the interruption should be caused by the
passengers during this time. The Court of Appeals held that it did and relied on the disability of the vessel, and a passenger should agree to await the repairs,he may not
be required to pay any increased price of passage, but his living expenses during the stay
legal obligation of the carrier to observe extraordinary diligence. The appellate court
shall be for his own account.
also cited the decision of the Supreme Court in Philippine Airlines v. Court of Appeals. 171
In case of delay in the departure of the vessel, the passengers have the right to
The obligation to observe extraordinary diligence, however, cannot include the remain on board and to be furnished with food for the account of the vessel unless
duty to provide the hotel accommodations and meals demanded by the passengers. the delay is due to fortuitous events or to force majeure. If the delay should exceed ten
As explained above, this duty refers to ensuring the passenger's safety (and not days, passengers requesting the same shall be entitled to the return of the fare, and
comfort and convenience), which in turn has a precise relation to death and/or if it is du:e exclusively to the fault of the captain or his agent, they may also demand
injury. 172 This duty is breached and becomes actionable under the Civil Code when, indemnity for losses and damages. (emphasis supplied)
during the carriage, the passenger has died or was injured- which was not the case
in Agana. Neither can the duty to observe extraordinary diligence for the safety of The conclusion that can be drawn from Article 698 is that if the cause of the
the plaintiffs exist during the whole time that they were stranded in Narita, even if a interruption of the voyage is force majeure, the carrier has no obligation to the
transportation contract existed between the parties. If injury, for instance, was passenger whatsoever. This is consistent .with Article 1266 of the Civil Code which
sustained by one of the plaintiffs while at the Nikko Hotel - premises not under the releases the obligor in an obligation to do when the performance has become a legal
carrier's control- no action against the carrier would arise under the contract of or physical impossibility. Consequently, the carrier cannot continue to be bound to
carriage. The passenger then would not be in the custody of the carrier. observe extraordinary diligence if it cannot perform the principal obligation of
carriage. After all, the obligation to observe extraordinary diligence is merely a
of the contract of carriage.

168
Agana v. Japan Airlines, CA-G.R. CV No. 39089 at 11 (December 22, 1993).
169
Id. at 15 (emphasis supplied).
173 2
°Considering
17
that the plaintifs' travel in this case was within the definition of "international 174
18 SCRA 699,704 (1993).
transportation" the Warsaw Convention is applicable. See Warsaw Convention, art. 1(1). PARAs, supra note 5, at 460.
171 226 SCRA 423 (1993). Code of Commerce is made suppletorily applicable to the law on common carriage. See Civil
172
Civil Code, arts. 1733,1755, & 1756. art. 1766.
 94 ATENEOLAw JouRNAL VOL. XLII N0.1 1997 DEFINING EXTRAORDINARY DILIGENCE . 95

The only time that the law speaks about the obligation to provide food or Eastern is concerned, therefore, plaintiffs were simply round-trip passengers. As
otherwise pay the passenger's living expenses during the interregnum are in cases of such Eastern had no obligation to feed and shelter them during the weather-caused delay. 179
(a) interruption of the trip caused by the disability of the vessel; and (b) delay in the
departure of the vessel. In case of interruption of the voyage where the passenger The rule in American jurisprudence is also to the effect that a person is not a passenger
agrees to await the repairs, the law requires the passenger to pay for his own living during the time that he is transferring from one conveyance to another in premises
expenses. In case of delay in the vessel's departure, the passengers have the right to not owned nor controlled by the carrier. In Seiler v. St. Louis Public Service Co.,l 80 a
remain on board and to be furnished with food. This obligation, however, does not passenger boarded a bus at a certain street and asked for a transfer ticket which
arise when the delay is due to a fortuitous event, in which case the passengers must would entitle him to traneyfer to another bus owned and operated by defendant. He
spend for their own meals. disembarked into the sidewalk and transferred to another bus stationed in the same
"bus zone." The bus the plaintiff was transferring to was only two feet away from
However one looks at the facts in Agana, therefore - whether from the point of the nose of the bus he had taken. While walking towards the second bus, the plaintiff
view of interruption of the voyage or delay in the departure of the flight 176 - the tripped, fell, and was injured. The Court of Appeals ruled that the carrier-passenger
carrier is not made liable for the passenger's living expenses because the cause of the ·relation had already ended when the accident occurred because he was "beyond and
interruption or delay is undoubtedly force majeure, a fact which even the Court of outside the control and direction of the carrier while walking upon a public way."
Appeals concedes. 177
By way of summation, it may be said that under the contract of common carriage,
This is the rule in the United States. In Bernstein v. Cunard Line and Eastern thr. obligation of the carrier is to carry the passenger safely to his agreed destination.
Airlines,178 the passengers were stranded in San Juan, Puerto Rico, because of the · In the performance of this obligation, the diligence required of the carrier is
weather conditions in the New York area where they were headed. They sued Eastern extraordinary. In the absence of further or special agreement, this is the only obligation
Airlines for its "failure to provide air tr'lnsportation from San Juan to Newark on of the carrier. That is not to say that the manner of performing the carriage is left
February 12, 1983, failure to provide hotel accommodations, meals, and transportation entirely to the carrier's discretion or is justified by a literal interpretation of the
during the delay, and for failure to provide alternative air transportation to Newark." contractual agreement and laws. 181 The carrier must perform his obligation in
In absolving the airline from liability, the Southern District Court of New York ruled: accordance with what has been expressly stipulated as well as with "all the
consequence which, according to their nature, may be in keeping with good faith,
Eastern has conclusively demonstrated that as a result of the weather in the usage andlaw." 182 This, however, does not justify the intercalation or imposition by
New York area on February 12th, Eastern was incapable of transporting plaintiffs . courts of contractual obligations not agreed upon nor contemplated by the parties.
to Newark in accordance with their reservations and trip plans.. The contract clearly Courts do not have authority to "remake, modify, or revise the contract between the
absolves Eastern of any responsibility for this delay caused by the weather. parties as contractually stipulated with the force of law between the parties so as to
substitute its own terms for those covenanted by the parties themselves." 183
Plaintiffs argue, nonetheless, that Eastern was obligated to do the following:
1) promptly advise plaintiffs that their return on February 12th could not take place In Isaac v. A.L. Ammen Transportation Company, the Supreme Court expressed
due to the closing of the New York area airports; 2) aid the plaintiffs in making
that "the carrier is not an insurer against all the risks of travel." 184 Thus, while it is the
alternative travel plans; 3) provide a return flight for the plaintiffs on the first
available flight; 4) be available and accessible to plaintiffs; and 5) arrange and provide carrier's obligation to transport the passenger from his point of origin to the place of
lodging, meals, and transportation during the delay. Plaintiffs cite absolutely no authority destination,"such duty does not encompass all the risks attendant to a passenger in
to support these assertions. transit." 185 And more recently, in Pilapil v. Court of Appeals,l86 the Supreme Court had
. .another opportunity to explain the scope and extent of a common carrier's
None of these so-called obligations is to be found in the passage contract .... · • responsibilities:
While Eastern undoubtedly has a public relations interest in keeping its stranded
travelers satisfied, it has no specific duty to be ever accessible to each of the millions
of travelers affected by a storm such as this one, nor could Eastern have possible (emphasis supplied).
known precisely when the airways to New York would reopen .... Insofar as
of written contracts of carriage are appended to this work as Annexes A-D.
182
Civil Code, art. 1315.
183
176
The Code of Commerce has been held applicable to contracts of air transport; see Mendoza v. Philippine Occena v. Jabson, 73 SCRA 641 (1976).
Airlines, 90 Phil. 836 (1952). 1841 .
saac v. A.L. Ammen Transportation Company, 101 Phil. 1046,1050 (1957).
177 Agana v. Japan Airlines, CA-G.R. CV No. 39089 at 12 (December 22, 1993). The Court of Appeals'
decision is pending review before the Supreme Court. No decision has been promulgated. "'Landicho v. Batangas Transport Co., 52 O.G. 7640 (1956); see also Necesito v. Paras, 104 Phil. 7578
(1958), Strong v.lloiloNegros Air Express Co. 40 O.G. (Supp. 12) 269 (year of promulgation unavailable).
178 19 Av. as. (CCH) 17, 485 (SONY 1985). 180 SCRA 546, 551-553 (1989).
 96 A TENEO LAw JouRNAL VOL. XUI N0.1
DEFINING EXTRAORDINARY DILIGENCE . 97

In consideration of the right granted to it by the public to engage in the business

of transporting passengers and goods, c; common carrier does not give its consent to In cases where the passenger's place of disembarkation is operated and
controlled by the carrier, the duty to exercise extraordinary diligence lasts until the
become an insurer of any and all risks to passengers and goods. It merely undertakes to
latter has had a reasonable opportunity to leave such premises.
perform certain duties to the public as the law imposes and holds itself liable for any
breach thereof.
Limiting the duration of extraordinary responsibility to a defined time frame
may arguably be inconsistent with the policy to protect the public from reckless
"While the law requires the highest degree of diligence from common carriers public utility drivers and unscrupulous operators. Some critics may say that
in the safe transport of their passengers and creates a presumption of negligence passengers will be depriyed of the full protection of the law. That should not be
against them, it does not, however, make the carrier an insurer of the absolute safety of its the case, however. For every right violated, a remedy exists. Ubi jus ibi remedium.
passengers. But this presumes that the wrong is actionable in law. After all, the law too,
. recognizes the rights of common carriers to be protected from unjustified
. impositions of liability and the court's "first and fundamental duty is to apply
"Thus, it is clear that neither the law nor the nature of the business of a. ·the law as they find it, not as they like it to be." 189
transportation company makes it an insurer of the passenger's safety, but that its
liability for personal injuries sustained by its passenger rests upon its negligence,
its failure to exercise the degree of diligence that the law requires. 187 V. CONCLUSION: A LEGISLATIVE PREROGATIVE

The provisions of our Civil Code on common carriers were taken from Anglo-
"Where, as in the instant case, the injury sustained by the petitioner was in no way American law. 190 For this reason, this writer has relied on the text of the law and
due to any defect in the means of transport or in the method of transporting or to the negligent drawn from American jurisprudence in an attempt to find a definition of the duration
or willful acts of private respondent's employees, and therefore involving no issue of negligence of extraordinary diligence. Prescinding from this exercise, it is this writer's conclusion
in its duty to provide safe and suitable care as well as competent employees, with the injury
that the obligation to exercise extraordinary diligence refers to ensuring the
arising wholly from causes created by strangers over which the carrier had no control
or even knowledge or could not have prevented, the presumption is rebutted and passenger's safety or taking steps to insure that he is not injured during the carriage.
the carrier is not and ought not to be held liable. To rule otherwise would make the Our courts, however, have expanded the meaning of extraordinary diligence in two
common carrier the insurer of the absolute safety of its passengers which is not the ways - first, by broadening its scope as to include not only safety but also comfort
intention of the lawmakers." 188 and convenience; and second, by stretching its term as to exceed the duration
contemplated by law and the parties to the contract of carriage. Perhaps, this instance
C. Amending Article 1755 · of judicial construction has been caused by the fact that the law itself does not define
the duration of extraordinary diligence. For this reason, this writer proposes that a
On the basis of the foregoing discussion, it is recommended that Article 1755 of law be passed to fill this void.
the Civil Code be amended to read as follows:
Defining the duration of extraordinary diligence by statute should not cause
Article 1755. A common carrier is bound to carry the passengers safely as far ·· any alarm to the riding public. The carrier may remain liable to the passenger even
as human care and foresight can provide, using the utmost diligence of very cautious in those instances where injury or death occurs outside the scope of the contract of
persons, with a due regard for all the circumstances. common carriage. This is true in every case where the carrier is guilty of a wrong
actionable in law. The philosophy behind the most important innovations in the
The extraordinary responsibility of common carriers for the safety of
present Civil Code connotes a moral direction and have been designed to remedy
passengers lasts from the time the carrier allows the passenger to board, upon the every conceivable wrong. 191
presentation of the latter for that purpose, and until the passenger has safely
disembarked at the agreed destination, without prejudice to the provisions in
Chapter 4, Title I of Book IV of this Code.

189
Lorenzo v. Director of Health, 50 Phil. 595 (1927); Lacson v. Roque etc., eta!., 92 Phil. 456 (1953); Resins,
Inc. V. Auditor General, 25 SCRA 754, 757 (1968); Baking v. Director of Prisons, 28 SCRA 850 (1969).
190
Home Insurance Co. v. American Steamship Agencies Inc. 23 SCRA 24 (1968); Maranan v. Perez, 20
187
Pilapil v. Court of Appeals, 180 SCRA 546, 552 (1989), citing Civil Code, arts. 1170 & 1173; Alfaro v. SCRA 412 (1967); REPORT OF THE CODE COMMISSION, supra note 115, at 64.
Ayson, 54 O.G. 7920 (1958); Necesito, 104 Phil. 75 (1958). 191
A b.
, ga In, The Philosophy of the Civil Code, 66 PH!L.L.J. 19 (1991); 2 J. CEZAR SANGCO, I TORTS AND DAMAGES
188
Id. at 552-53. i ?46-747 (1994); REPORT OF THE CODE COMMISSION, supra note 115, at 39.
98 A TENEO LAw JouRNAL VOL. XLII N0.1 99

Thus, a carrier can be made liable for damages based on the law on Human AN EXAMINATION OF SELECTED ISSUES
Relations,l 92 the contract of common carriage,193 or the law on quasi-delicts. There is,
therefore, no need to continue to rely on the law of extraordinary diligence in every INVOLVED IN THE EXECUTION OF INSANE
case. DEATHROW CONVIC..:rS
Each basis of liability, however, has its respective legal qualifications. Indeed,
.KATRINA VICENTE Gou*
the system of our Civil Code is like a road network of highways and streets. The use
of these routes is subject to rules and regulations to ensure the safety of pedestrians ABSTRACT
as well as the motoring public. Like every road network, the Civil Code should be
read and applied with a due regard for established rules to prevent traffic jams. For The Supreme Court affirmed the first death sentence last 1996. Aside from this, there
instance, the structured presentation of our law on Damages194 requires specific . are 281 inmates on death row at present after their convictions by the lower courts. With the
conditions for recovery which in every case must be complied with. For this reason, growing number of death row inmates and with the courts apparently disposed to meting out
one must distinguish the varying bases of the carrier's liability. ·death sentences whenever called for, the issue of death row convicts becoming insane after
final sentence has been pronounced and while awaiting their execution becomes an important
By liberally invoking the duty of the carriers to observe extraordinary diligence,
our courts have breached the "rules of the road," causing "legal traffic jams," thereby
muddling the theories and concepts incorporated in the Code. Effectively, the courts In the Philippines, commentators are of the opinion that when a death row convict becomes
have amended the law, which it obviously cannot do. insane, his execution should be stayed pending his treatment at a mental facility based on
Article 79 of the Revised Penal Code. According to the provision, however, once the death
Ultimately, this requires the exercise of congressional prerogative. Congress may . row convict regains his sanity, he is once again death eligible.
adopt Article 1755 as proposed to be amended by this writer, or it may amend it to ;?.,'

embody the liberal interpretation given by the our courts to the law of extraordinary The provision, which deals generally with the suspension of the execution of sentences
diligence. once the convict becomes insane while serving said sentence, does not seem to adequately
resolve certain issues especially in the death penalty context, such as: (1) the procedure to be
The beauty of the law lies in its dynamism. Laws can always be changed when ·.·•· observed once an insanity claim is raised by or on behalf of the death row convict, as well as
they no longer serve the purpose for which they are passed. This power to change (2) the procedure to be observed after a death row convict is adjudged insane. Both the due
the law, however, lies with Congress. process clause and the equal protection clause of the Constitution require that uniform
procedures be formulated in order that those entitled to the statutory right of not being executed
·while insane may avail of such as well as to avoid the arbitrary, capricious, unreliable and
unpredictable administration of the death penalty.

Specifically, a resolution of the first issue entails answers to the following questions: (a)
.is the death row convict still entitled to procedural due process; (b) if so, to what extent or
degree of procedural due process is he entitled? The study concludes that the death row
.. convict is still entitled to procedural due process and that the extent or degree of such is
determined by a balancing of the limited right to life of the death row convict by virtue of his
statutory right not to be executed while insane vis-a-vis the interests of the state and society
avoiding the filing of spurious insanity claims, in avoiding the delay or frustration in
carrying out the death penalty, as well as minimizing fiscal and administrative costs. The
then proposes certain guidelines by discussing selected aspects of procedure in order to
azd m the formulation of uniform and specific procedures to deal with such issue.

A resolution of the second issue abovementioned entails answers to the following

.questions: (a) if the death row convict is adjudged insane, can the state forcibly treat him in
order to render him sane for execution purposes; (b) does he have the right to refuse medication;
192 Civil Code, art. 19, et. seq.
193 Id., art. 1732, et seq. Juris Doctor 1997, with honors, Ateneo de Manila University School of Law; recipient of the Ateneo de
194 Civil Code, arts. 2195-2235. Manila University School of Law Third Best Thesis Award.