Transpo & Public Service Law
Transpo & Public Service Law
GENERAL CONCEPTS IN
TRANSPORTATION LAW
Contract of Transportation
There is contract of transportation where a person
obligates himself to transport persons or property
from one place to another for a consideration.
The contract may therefore involve carriage of
passengers or carriage of goods.
The person who obligates himself to transport the
goods or passengers may be a common carrier or a
private carrier.
Parties in a contract of carriage
Passenger – one who travels in a public conveyance
by virtue of contract, express or implied, with the
carrier as to the payment of fare or that which is
accepted as an equivalent thereof (Nueca v. Manila
Railroad Co., G.R. 31731-R, Jan. 30, 1968)
Common Carrier – one that holds itself out as ready
to engage in the transportation of goods for hire as a
public employment and not as a casual occupation.
(De Guzman v. CA, G.R. L-47822, Dec. 22, 1988)
Baliwag Transit v. CA,
G.R. 80447, Jan. 31, 1989
Facts:
The parents of George, who is already of legal age filed
vehicle.
Ancillary Activity Immaterial
Art. 1732 makes no distinction between one whose
principal business activity is carrying of persons or
goods or both, and one who does such carrying only
as an ancillary, nor does it make distinctions between
one who offers the service to the ‘general public’ or a
narrow segment of the general population.
Therefore, a party who ‘back-hauled’ goods for other
merchants from Manila to Pangasinan, even when
such activity was only periodical or occasional and
was not its principal line of business would be subject
to the responsibilities and obligations of a common
carrier. [See De Guzman v. CA, G.R. L-47822, Dec. 22, 1988]
Limited Clientele Not a Defense
Facts:
Petitioner entered into a contract with SMC for the
transfer of paper and kraft board from the port area
to SMC’s warehouse.
Held:
She is still a common carrier although she does not
indiscriminately hold her services out to the public
but offers the same to select parties with whom she
may contract in the conduct of her business. [Virgines
Calvo v. UCPB General Insurance Co., G.R. 148496, Mar. 19, 2002]
Facts:
Respondent shipping company transported the 75,000
bags of cement to Petitioner in its barge. The bags of
cement perished after its barge sank while being towed
by a tug boat.
Held:
Respondent is a common carrier because it was engaged
in the business of carrying goods for others for a fee. The
regularity of its activities in the area indicates more than
just a casual activity on its part. Neither can the concept
of a common carrier change merely because individual
contracts are executed or entered into with the patrons of
the carrier. [Phil. American General Insurance Co., et al. v. PKS Shipping
Co., G.R. 149038, Apr. 9, 2003]
No fixed route, No terminal, No
Ticket issued also not a Defense
Facts:
Petitioner is involved in the business of carrying
goods through its barges. It has no fixed and publicly
known route, maintains no terminals, and issues no
tickets.
Held:
Petitioner is still a common carrier because its
principal business is that of lighterage and drayage
and it offers its barges to the public for carrying or
transporting by water for compensation. [Asia Lighterage
and Shipping, Inc. v. CA, G.R. 147246, Aug. 19, 2003]
Drayage service is usually provided by a national
trucking/shipping company or an International shipment
brokerage firm in addition to the transportation of the freight to and
from the exhibit site. Drayage service provides for:
- Completing inbound carrier's receiving documents;
- Unloading and delivery of the goods to your booth/stand
space from the receiving dock;
- Storing of empty cartons/crates and extra products at a
on/near-site warehouse;
- Pickup of the goods from your booth/stand space to the
receiving dock and loading back into the carrier; or
- Completing outbound carrier's shipping documents.
Means used in transporting not material
[First Philippine Industrial Corp. v. CA, G.R. 147246, Aug. 19,
2003]
Issue:
Are pipeline operators common carriers as to subject
2. On "through streets" or
boulevards, clear of traffic, 40 km. per hour 30 km. per hour
with no " blind corners”,
when so designated.
3. On city and municipal
streets, with light traffic, 30 km. per hour 30 km. per hour
when not designated
“through streets”
4. Through crowded streets,
approaching intersections at 20 km. per hour 20 km. per hour
"blind corners," passing school
zones, passing other vehicles
which are stationery, or for
similar dangerous circumstance
Exceptions to Rate Speed
A physician or his driver when the former responds
to emergency calls;
The driver of a hospital ambulance on the way to and
from the place of accident or other emergency;
Any driver bringing a wounded or sick person for
emergency treatment to a hospital, clinic, or any
other similar place;
The driver of a motor vehicle belonging to the Armed
Forces while in use for official purposes in times of
riot, insurrection or invasion;
The driver of a vehicle, when he or his passengers are
in pursuit of a criminal;
A law-enforcement officer who is trying to overtake a
violator of traffic laws; and
The driver officially operating a motor vehicle of any
fire department, provided that exemption shall not be
construed to allow useless or unnecessary fast
driving of drivers aforementioned.
Section 36. Speed limits uniform throughout the Philippines.
- No provincial, city or municipal authority shall enact or
enforce any ordinance or resolution specifying
maximum allowable speeds other than those provided in
this Act.
Correct Driving
Pass to the right when meeting persons or vehicles
coming toward him.
Pass left when overtaking persons or vehicles going the
same direction.
Conduct to the right of the center of the intersection of
the highway when turning left.
Applicable every person operating a motor vehicle or an
animal-drawn vehicle.
Exceptions:
Different course of action is required in the interest of
compliance.
Overtaking a vehicle [Sec. 39]
Pass at a safe distance to the left;
Not again drive to the right side of the highway until
safety is clear of such overtaken vehicle.
Exceptions: Passing at right allowed
On highways with two or more lanes; or
transportation of goods.
Exception:
When there is agreement as to the time of delivery
When delay is deemed reasonable
Ordinary Goods – 2 months [Maersk Line v. CA, May
17, 1993]
Perishable Goods – 2 to 3 days [Dissenting: Tan
Chiong Sian v. Inchausti, GR 6092, Mar. 8, 1912]
Rules on Delay on Overland
Transportation (Code of Commerce)
Art. 358, Code of Commerce:
If there is no period fixed for the delivery of the
the shipper.
Bar, Mercantile Law [1975]
Bar Question:
If a shipper, without changing the place of delivery
impossible to avoid;
Must be such as to render it impossible for the
THE LOSS;
Carrier must be free from any participation in causing
Facts:
M/V Tandag sank after a crack from her auxiliary
Held:
For a bus company, due diligence in selection of
Facts:
Respondent Concepcion loaded his construction
Facts:
Cangco was clerk of Manila Railroad with a monthly
Provisions on:
Emergency exits
Lifevests or Lifejackets
BILL OF LADING
CONCEPT OF BL
A bill of lading, like a passage ticket, is not necessary
for the perfection of a contract of carriage.
Art. 354, Code of Commerce: In the absence of a bill of
lading, disputes shall be determined by the legal
proofs which the parties may present in support of
their respective claims, according to the general
provisions established in this Code for commercial
transaction.
Note: If involving common carrier, disputes without
BL is governed by the Civil Code. In respect to
electronic commerce, it is governed by R.A. 8792 of the
Electronic Commerce Act.
BILL OF LADING DEFINED
A written acknowledgment, signed by the master of a
vessel or other authorized agent of the carrier, that he
has received the described goods from the shipper, to
be transported on the expressed terms to the
described place of destination, and to be delivered
there to the designated consignee or parties. [70 Am
Jur 2d 924]
KINDS OF BILLS OF LADING
Negotiable or Non-negotiable Bill of Lading
Clean Bill of Lading or Foul Bill of Lading
On-board Bill or Received-For-Shipment Bill of
Lading
Spent Bill of Lading
Through Bill of Lading
Custody Bill of Lading
Port Bill of Lading
Negotiable or Non-negotiable Bill of
Lading
When delivered to the Order or to bear, negotiable.
Otherwise, non-negotiable.
Clean Bill of Lading or Foul Bill of
Lading
When it does not contain any notation indicating any
defect in the goods – Clean BL
Otherwise, it is Foul BL
On-board Bill or Received-For-
Shipment Bill of Lading
On-board BL is one in which it is stated that the
goods have been received on board the vessel which
is to carry the goods
Received for shipment BL is one which it is stated
that the goods have been received for shipment with
or without specifying the vessel by which the goods
are to be shipped.
Custody Bill of Lading
One which states that the goods are already received
by the carrier but the vessel indicated therein has not
yet arrived at port.
Port Bill of Lading
One which state that the vessel indicated in the BL
that will transport the goods is already in the port.
NATURE OF BILL OF LADING
It operates both as:
1. A receipt for the goods shipped; and
2. A contract to transport and deliver the goods as
stipulated therein. Being a contract, it is the law
between the parties who are bound by its terms and
conditions sol longs as they are not contrary to law,
morals, good customs, public order and public
policy.
It is also a document of title.
DOCUMENT OF TITLE
Includes any bill of lading, dock warrant, ‘quedan’, or
warehouse receipt or order for the delivery of goods,
or any other document used in the ordinary course of
business in the sale or transfer of goods, as proof of
the possession or control of the goods, or authorizing
or purporting to authorize the possessor of the
document to transfer or receive either by
endorsement or by delivery, goods represented by
such document. [Art. 1636, NCC]
EFFICACY OF BL
Upon delivery to and acceptance by the shipper.
It is presumed that the stipulations of the BL were
known to the shipper, in the absence of fraud,
concealment or improper conduct, and he generally
bound by his acceptance whether he reads the bill or
not.
A shipper who receives a BL without objection after
an opportunity to inspect it, and permits the carrier
to act on it by proceeding with the shipment is
presumed to have accepted it as correct and assented
to its terms.
A BL accepted without dissent raises the
presumption that all the terms therein were brought
to the knowledge of the shipper and agreed to by
him, and in the absence of fraud or mistake, he is
estopped from thereafter denying that he assented to
such terms.
BL AS CONTRACT OF ADHESION
BLs, like tickets constitute a class of contracts of
adhesion.
Construed liberally in favor of the passenger or
shipper.
But, they are not ENTIRELY prohibited.
One who adheres to the contract is in reality free to
reject it entirely.
If he adheres, he gives his consent.
Receipt of the BL or ticket is tantamount to adherence
to the stipulation embodied therein
Qua Chee Gan v. Law Union and
Rock Insurance Co., 25 SCRA 70
[1968]
Held: The courts cannot ignore that nowadays,
monopolies, cartels and concentration of capital
endowed with overwhelm economic power, manage to
impose upon parties dealing with them cunningly
prepared ‘agreements’ that the weaker party may not
change one with his participation in the ‘agreement’
being reduced to the alternative ‘to take it or leave it’,
labelled since Raymond Sleilles ‘contracts of adherence’
(contracts d’ adhesion) in contrast (of which policies of
insurance and international bill of lading are prime
examples) obviously cap for greater strictness and
vigilance on the part of the court with view to protecting
the weaker party from abuses and imposition, and
prevent their becoming traps of the unwary.
RULE ON PROTECTION OF THE
DISADVANTAGED
Art. 24, NCC: In all contractual property or other
relations, when one of the parties is at the
disadvantage on account of his moral dependence,
ignorance, indigence, mental weakness, tender age
and other handicap, the courts must be vigilant for
his protection.
Servando, et al. v. Phil. Steam Navigation
Co., G.R. No. L-36481-2 October 23, 1982
Held:
While it may be true that petitioner had not signed
the plane ticket (Exh. '12'), he is nevertheless bound
by the provisions thereof.
Such provisions have been held to be a part of the
contract of carriage, and valid and binding upon the
passenger regardless of the latter's lack of knowledge
or assent to the regulation.
It is what is known as a contract of 'adhesion', in
regards which it has been said that contracts of
adhesion wherein one party imposes a ready made
form of contract on the other, as the plane ticket in
the case at bar, are contracts not entirely prohibited.
The one who adheres to the contract is in reality free
to reject it entirely; if he adheres, he gives his consent.
Magellan Manufacturing Marketing Corp.
v. CA, G.R. 95529, Aug. 22, 1991
Issue 1: On the argument that there could have been
no agreement in the transshipment even if the BL
contained such since the same is prohibited in the
Letter of Credit, and that, therefore, it had no
intention to allow transshipment of the subject cargo,
it was:
Held:
As between such stilted thesis of petitioner and the
contents of the bill of lading evidencing the intention of
the parties, it is irremissible that the latter must prevail.
The terms of the contract as embodied in the bill of
lading are clear and thus obviates the need for any
interpretation. The intention of the parties which is the
carriage of the cargo under the terms specified
thereunder and the wordings of the bill of lading do not
contradict each other.
The terms of the contract being conclusive upon the
parties and judging from the contemporaneous and
subsequent actuations of petitioner, to wit: personally
receiving and signing the bill of lading and paying
the freight charges, there is no doubt that petitioner
must necessarily be charged with full knowledge and
unqualified acceptance of the terms of the bill of
lading and that it intended to be bound thereby.
Issue No. 2: Can a consignee refuse a bill of lading on the
ground that there was overshipment of goods than the
quantity covered by the letter of credit?
Held: In a letter of credit, there are three distinct and
independent contracts: (1) the contract of sale between
the buyer and the seller; (2) the contract of the buyer
with the issuing bank; and (3) the letter of credit proper
in which the bank promises to pay the seller pursuant to
the terms and conditions stated therein.
It is clearly settled in law that the three contracts which
make up the letter of credit arrangement are to be
maintained in a state of perpetual separation.
A transaction involving the purchase of goods may also
require, apart from a letter of credit, a contract of
transportation specially when the seller and the buyer
are not in the same locale or country, and the goods
purchased have to be transported to the latter.
Hence, the contract of carriage, as stipulated in the bill of
lading must be treated independently of the contract of
sale between the seller and the buyer, and the contract
for the issuance of a letter of credit between the buyer
and the issuing bank.
Any discrepancy between the amount of goods
described in the commercial invoice in the contract of
sale and the amount allowed in the letter of credit will
not affect the validity and enforce-ability of the contract
of carriage as embodied in the bill of lading.
As a bank cannot be expected to look beyond the
documents presented to it by the seller pursuant to the
letter of credit, neither can the carrier be expected to go
beyond the representations of the shipper in the bill of
lading and to verify their accuracy vis-à-vis the
commercial invoice and the letter of credit.
Having no actual knowledge of the kind, quantity, or
condition of the contents of the container, the carrier
issues the corresponding bill of lading based on the
declaration of the shipper, and the bill of lading simply
states the contents of the container either as advised by
the shipper or prefaced by the phrase “said to contain”.
The matter of quantity, description and conditions of the
cargo inside the container is the sole responsibility of the
shipper.
PAROLE EVIDENCE RULE
Sec. 9, Rule 130, Rules of Court: When the terms of an
agreement have been reduced to writing, it is
considered as containing all the terms agreed upon
and there can be, between the parties and their
successors in interest, no evidence of such terms
other than the contents of the written agreement.
BL is covered by the parole evidence rule.
EXCEPTIONS TO PAROLE
EVIDENCE RULE
However, a party may present evidence to modify,
explain or add to the terms of the written agreement if he
puts in issue in his pleading:
a) An intrinsic ambiguity, mistake or imperfection in the
written agreement;
b) The failure of the written agreement to express the true
intent and agreement of the parties thereto;
c) The validity of the written agreement; or
d) The existence of other terms agreed to by the parties or
their successors in interest after the execution of the
written agreement.
The term “agreement” includes wills.
SUBSTANTIVE PROVISIONS ON
BILL OF LADING
Art. 353, Code of Commerce: The legal evidence of
the contract between the shipper and the carrier shall
be the bills of lading, by the contents of which the
disputes which may arise regarding their execution
and performance shall be decided, no exceptions
being admissible other the those of falsity and
material error in the drafting.
After the contract has been complied with, the bill of
lading which the carrier has issued shall be returned to
him, and by virtue of the exchange of this title with the
thing transported, the respective obligations and actions
shall be considered cancelled, unless in the same act the
claim which the parties may wish to reserve be reduced
to writing, with the exception of that provided for in
Article 366
In case the consignee, upon receiving the goods, cannot
return the bill of lading subscribed by the carrier,
because of its loss or of any other cause, he must give the
latter a receipt for the goods delivered, this receipt
producing the same effects as the return of the bill of
lading.
Art. 709, Code of Commerce: A bill of lading drawn up
in accordance with the provisions of this title shall be
proof as between all those interested in the cargo and
between the latter and the insurers, proof to the contrary
being reserved for the latter.
Art. 710, Code of Commerce: If the bills of lading are
contradictory, and no change or erasure can be observed
in any of them, those possessed by the shipper or
consignee signed by the captain shall be proof against
the captain or ship agent in favor of the consignee or
shipper; and those possessed by the captain or ship
agent signed by the shipper shall be proof against the
shipper or consignee in favor of the captain or ship
agent.
Sec. 3[4] & [5], COGSA, C.A. No. 65:
[4] Such a bill of lading shall be prima facie evidence of
the receipt by the carrier of the goods as therein
described in accordance with paragraphs 3(a), (b), and
(c), of this section.
[5] The shipper shall be deemed to have guaranteed to
the carrier the accuracy at the time of the shipment of the
marks, number, quantity, and weight, as furnished by
him; and the shipper shall indemnify the carrier against
all loss, damages, and expenses arising or resulting from
inaccuracies in such particulars. The right of the carrier
to such indemnity shall in no way limit his responsibility
and liability under the contract of carriage to any person
other than the shipper.
MATTERS TO BE ENTERED IN A
BL OR AIRWAY BILL
For BL (Art. 706, Code of Commerce):
Name, registry and tonnage of the vessel
Name of shipper
Name of consignee
written)
Not apparent – Must file a claim within 24 hours
from deliver
FILING OF ACTION IN
INTERISLAND TRADE
Period to file action if claim is filed but CARRIER
REFUSES TO PAY:
6 years – if no BL
10 years – if there is BL
Note: Filing of the claim under Art. 366, CoC is
CONDITION PRECEDENT for recovery. If no claim
is filed, there will be no recovery, even if an action
therefor is meritorious since the claim is part of the
cause of action
FILING OF CLAIMS IN OVERSEAS
TRADE
If damage is APPARENT – CLAIM SHOULD BE
FILED IMMEDIATELY.
If damage is NOT APPARENT – CLAIM SHOULD
BE FILED WITHIN 3 DAYS.
FILING OF ACTION IN OVERSEAS
TRADE
Facts:
The shipper has insured the merchandise against all
Mental anguish,
Fright,
Serious anxiety,
Besmirched reputation,
Wounded feelings,
Moral shock,
Similar injury
PRINCIPLES INVOLVING AWARD
OF MORAL DAMAGES
As a general rule, no moral damages may be awarded
where the breach of contract is NOT MALICIOUS.
Moral damages may be awarded if the contractual
negligence is considered gross negligence.
Though incapable for pecuniary estimation, moral
damages may be recovered if they are the proximate
result of the defendant’s wrongful act or omission.
The award of moral damages is designed to
compensate the claimant for actual injury and is not
meant to enrigh the complainant at the expense of the
defendant.
CASES WHEN MORAL DAMAGES
MAY BE AWARDED (Arts. 2219 & 2220,
NCC)
Criminal offense resulting in physical injuries;
Quasi-delicts causing physical injuries
Seduction, abduction, rape, or other lascivious acts
Adultery or concubinage
Illegal or arbitrary detention or arrest
Illegal search
Libel, slander or any other form of defamation
Malicious prosecution
Acts mentioned in Art. 309 [disrespect to the dead, or
wrongful interference with a funeral]
Acts and actions referred to in Articles 21, 26, 27, 28, 29,
30, 32, 34 and 35 [on human relations]
In culpa contractual, moral damages may be awarded:
Where the mishap resulted in the death of the passenger.
(Art. 1764 in relation to Art. 2206)
When the carrier was guilty of fraud or bad faith, even if
death did not result. (Art. 2220; Sabena Belgian World
Airlines v. CA, 171 SCRA 620)
Note: If the cause of action is culpa aquiliana where the
passenger suffered physical injuries, there is no more
need to prove that the carrier acted fraudulent or in bad
faith (Art. 2210[2], Civil Code)
Lopez v. Pan Am, 16 SCRA 431
(1966)
Facts:
VP Lopez with his wife, daughter and son-in-law had
tickets for 1st class bound for SF. When they arrived
in Tokyo, the plane’s crew found out that the 1st class
tickets had been overold, and Lopez and his family
were compelled to take the economy seats.
When the plane arrived at SF, Filipino official and the
Vessels
Ship or vessel
Ship or Vessel - means any kind, class or type of craft
or artificial contrivance capable of floating in water,
designed to be used, or capable of being used, as a
means of floating in water transport in the domestic
trade for the carriage of passengers or cargo, or both,
utilizing its own motive power or that of another.
[R.A. 9295]
Tucker v. Alexandroff [183 U.S. 424,
438, 22 S.Ct. 195, 201, 46 L.Ed. 264]
form;
Duly notarized mortgage contract;
BIR; and
Original copy of CO and CVR.
shipping operator;
Reasonably-needed and will be used exclusively by
the registered domestic shipping operators in its
transport operations;
Approval of a MARINA was obtained prior to the
importation of said articles;
Valid up to ten (10) years from effectivity.
Deregulation of the Domestic
Shipping Industry (Sec. 8)
Domestic ship operators authorized to establish their
own domestic shipping rates provided that effective
competition is fostered and public interest is served.
MARINA shall monitor all shipping operations and
exercise regulatory intervention where it is
established, after due process that public interest
needs to be protected and safeguarded.
Safety Standards
(Sec. 9)
All vessels shall at all times be in seaworthy
condition, properly equipped with adequate life-
saving, communication, safety and other equipment,
operated and maintained in accordance with the
standards set by MARINA, and manned by duly
licensed and competent vessel crew.
The MARINA given the power to inspect vessels and
all equipment on board vessels to ensure compliance
with safety standards.
Jurisdiction of MARINA
(Sec. 10)
Register vessels;
Issue certificates of public convenience, or any
extensions or amendments thereto, authorizing the
operation of all kinds, classes and types of vessels
in domestic shipping: Provided, That no such
certificate shall be valid for a period of more than
twenty-five (25) years;
Modify, suspend or revoke at any time, upon notice
and hearing, any certificate, license or accreditation
it may have issued to any domestic ship operator;
Establish and prescribe routes, zones of areas of
operations of domestic ship operators;
Require any domestic ship operator to provide
shipping services to any coastal area, island or
region in the country where such services are
necessary for the development of the area, to meet
emergency sealift requirements, or when public
interest so requires;
Set safety standards for vessels in accordance with
applicable conventions and regulations;
Require all domestic ship operators to comply with
operational and safety standards for vessels set by
applicable conventions and regulations, maintain its
vessels in safe and serviceable condition, meet the
standards of safety of life at sea and safe manning
requirements, and furnish safe, adequate, efficient,
reliable and proper service at all times;
Inspect all vessels to ensure and enforce compliance
with safety standards and other regulations;
Ensure that all domestic ship operators shall have
the financial capacity to provide and sustain safe,
reliable, efficient and economic passenger or cargo
service, or both;
Determine the impact which any new service shall
have to the locality it will serve;
Adopt and enforce such rules and regulations
which will ensure compliance by every domestic
ship operator with required safety standards and
other rules and regulations on vessels safety;
Adopt such rules and regulations which ensure the
reasonable stability of passengers and freight rates
and, if necessary, to intervene in order to protect
public interest;
Hear and adjudicate any compliant made in writing
involving any violation of this law or the rules and
regulations of the Authority;
Impose such fines and penalties on, including the
revocation of licenses of, any domestic ship
operator who shall fail to maintain its vessels in
safe and serviceable condition, or who shall violate
or fail to comply with safety regulations;
Investigate any complaint made in writing against
any domestic ship operator, or any shipper, or any
group of shippers regarding any matters involving
violations of the provisions of this Act;
Upon notice and hearing, impose such fines,
suspend or revoke certificates of public
convenience or other license issued, or otherwise
penalize any ship operator, shipper or group of
shippers found violating the provisions of this Act;
and
Issue such rules and regulations necessary to
implement the provisions of this Act: Provided, That
such rules and regulations cannot change or in any
way amend or be contrary to the intent and purposes
of this Act.
Prohibited Acts and Practices of
Domestic Ship Operators (Sec. 16)
Operate without a valid certificate of public convenience,
accreditation or other form of authority required by this Act;
Refuse to accept or carry any passenger or cargo without
just cause;
Fail to maintain its vessels in safe and serviceable condition,
or violate safety rules and regulations;
Fail to obtain or maintain adequate insurance coverage;
Fail to meet or maintain safe manning requirements; and
Such other acts which the MARINA shall determine, after
due notice and hearings, to be detrimental or prejudicial to
the safety, stability and integrity of domestic shipping.
CPC Issuance (Sec. 2, Rule IV, IRR of
R.A. 9295 on Deregulation)
Power of MARINA to issue CPC or any
amendments/extensions/renewals.
Requirements:
Economic and beneficial effect which the proposed
malfeasance;
Due to fault or malice of borrower;
Inability to navigate.