Keihin-Everett Forwarding Co. Inc. v. Tokio Marine Malayan Insurance Co. Inc.

G.R. No. 212107, Jan 28, 2019

Facts: Honda Trading Phils. Ecozone Corporation (Honda Trading) ordered 80 bundles of Aluminum
Alloy Ingots from PT Molten Aluminum Producer Indonesia (PT Molten). PT Molten loaded the goods
in two container vans with Serial Nos. TEXU 389360-5 and GATU 040516-3 which were, in turn,
received in Jakarta, Indonesia by Nippon Express Co., Ltd. for shipment to Manila.
Aside from ensuring the entire shipment with Tokio Marine & Nichido Fire Insurance Co.,
Inc. (TMNFIC) under Policy No. 83-00143689, Honda Trading also engaged the services of petitioner
Keihin-Everett to clear and withdraw the cargo from the pier and to transport and deliver the same
to its warehouse at the Laguna Technopark in Biñan, Laguna. Meanwhile, petitioner Keihin-Everett
had an Accreditation Agreement with respondent Sunfreight Forwarders whereby the latter
undertook to render common carrier services for the former and to transport inland goods within
the Philippines.
The shipment arrived in Manila on Nov 3, 2005 and was, accordingly, offloaded from the
ocean liner and temporarily stored at the CY Area of the Manila International Port pending release
by the Customs Authority. On Nov 8, 2005, the shipment was caused to be released from the pier by
petitioner Keihin-Everett and turned over to respondent Sunfreight Forwarders for delivery to Honda
Trading. En route to the latter's warehouse, the truck carrying the containers was hijacked and the
container van with Serial No. TEXU 389360-5 was reportedly taken away. Although said container
van was subsequently found in the vicinity of the Manila North Cemetery and later towed to the
compound of the MMDA, it appears that the contents thereof were no longer retrieved. Only the
container van with Serial No. GATU 040516-3 reached the warehouse. Consequently, Honda Trading
suffered losses in the total amount of P2,121,917.04, representing the value of the lost 40 bundles of
Aluminum Alloy Ingots.
Claiming to have paid Honda Trading's insurance claim for the loss it suffered, respondent
Tokio Marine commenced the instant suit with the filing of its complaint for damages against
petitioner Keihin-Everett. Respondent Tokio Marine maintained that it had been subrogated to all
the rights and causes of action pertaining to Honda Trading. Served with summons, petitioner
Keihin-Everett denied liability for the lost shipment on the ground that the loss thereof occurred
while the same was in the possession of respondent Sunfreight Forwarders. Hence, petitioner
Keihin-Everett filed a third-party complaint against the latter, who, in turn, denied liability on the
ground that it was not privy to the contract between Keihin-Everett and Honda Trading. If at all,
respondent Sunfreight Forwarders claimed that its liability cannot exceed the P500,000.00 fixed in
its Accreditation Agreement with petitioner Keihin-Everett.

Issue: Was there a subrogation in this case?

Ruling: Yes. Keihin-Everett insisted that Tokio Marine is not the insurer but TMNFIC, hence, it argued
that Tokio Marine has no right to institute the present action. As it pointed out, the Insurance Policy
shows in its face that Honda Trading procured the insurance from TMNFIC and not from Tokio
Marine. While this assertion is true, Insurance Policy itself expressly made Tokio Marine as the party
liable to pay the insurance claim of Honda Trading pursuant to the Agency Agreement entered into
by and between Tokio Marine and TMNFIC. As properly appreciated by both the RTC and the CA, the
Agency Agreement shows that TMNFIC had subsequently changed its name to that of Tokio Marine.
By agreeing to this stipulation in the Insurance Policy, Honda Trading binds itself to file its claim from
Tokio Marine and thereafter to accept payment from it.
At any rate, even if we consider Tokio Marine as a third person who voluntarily paid the
insurance claims of Honda Trading, it is still entitled to be reimbursed of what it had paid. As held by
this Court in the case of Pan Malayan Insurance Corp. v. Court of Appeals, the insurer who may have
no rights of subrogation due to "voluntary" payment may nevertheless recover from the third party
responsible for the damage to the insured property under Art. 1236 of the Civil Code. Under this
circumstance, Tokio Marine's right to sue is based on the fact that it voluntarily made payment in
favor
of Honda Trading and it could go after the third party responsible for the loss (Keihin-Everett) in the
exercise of its legal right of subrogation.
Keihin-Everett, as a common carrier, is mandated to observe, under Art. 1733 of the Civil
Code, extraordinary diligence in the vigilance over the goods it transports according to all the
circumstances of each case. If the goods are lost, destroyed, or deteriorated, it is presumed to have
been at fault or to have acted negligently, unless it proves that it observed extraordinary diligence.
To be sure, under Art. 1736 of the Civil Code, a common carrier's extraordinary responsibility over
the shipper's goods lasts from the time these goods are unconditionally placed in the possession of,
and received by, the carrier for transportation, until they are delivered, actually or constructively, by
the carrier to the consignee, or to the person who has a right to receive them. Hence, at the time
Keihin-Everett turned over the custody of the cargoes to Sunfreight Forwarders for inland
transportation, it is still required to observe extraordinary diligence in the vigilance of the goods.
Failure to successfully establish these carries with it the presumption of fault or negligence, thus,
rendering Keihin-Everett liable to Honda Trading for breach of contract. It bears to stress that the
hijacking of the goods is not considered a fortuitous event or a force majeure. Nevertheless, a
common carrier may absolve itself of liability for a resulting loss caused by robbery or hijacked if it is
proven that the robber or hijacking was attended by grave or irresistible threat, violence or force. In
this case, Keihin-Everett failed to prove the existence of the aforementioned instances.
We likewise agree with the CA that the liability of Keihin-Everett and Sunfreight Forwarders are not
solidary. There is solidary liability only when the obligation expressly so states, when the law so
provides, or when the nature of the obligation so requires.
Thus, under Art. 2194 of the Civil Code, liability of two or more persons is solidary in quasi-
delicts. But in this case, Keihin-Everett's liability to Honda Trading (to which Tokio Marine had been
subrogated as an insurer) stemmed not from quasi-delict, but from its breach of contract of carriage.
Sunfreight Forwarders was only impleaded in the case when Keihin-Everett filed a third-party
complaint against it. As mentioned earlier, there was no direct contractual relationship between
Sunfreight Forwarders and Honda Trading. Accordingly, there was no basis to directly hold
Sunfreight Forwarders liable to Honda Trading for breach of contract. If at all, Honda Trading can
hold Sunfreight
Forwarders for quasi-delict, which is not the action filed in the instant case. It is not expected
however that Keihin-Everett must shoulder the entire loss. The case of Torres-Madrid Brokerage, Inc.
v. FEB Mitsui Marine Insurance Co., Inc. is instructive. The said case involves a similar set of facts as
that of the instant case such that the shipper (Sony) engaged the services of common carrier (TMBI),
to facilitate the release of its shipment and deliver the goods to its warehouse, who, in turn,
subcontracted a portion of its obligation to another common carrier (BMT).
In the same manner, Keihin-Everett has a right to be reimbursed based on its Accreditation
Agreement with Sunfreight Forwarders. By accrediting Sunfreight Forwarders to render common
carrier services to it, Keihin-Everett in effect entered into a contract of carriage with a fellow
common carrier, Sunfreight Forwarders. It is undisputed that the cargoes were lost when they were
in the custody of Sunfreight Forwarders. Hence, under Art. 1735 of the Civil Code, the presumption
of fault on the part of Sunfreight Forwarders (as common carrier) arose. Since Sunfreight Forwarders
failed to prove that it observed extraordinary diligence in the performance of its obligation to Keihin-
Everett, it is liable to the latter for breach of contract. Consequently, Keihin-Everett is entitled to be
reimbursed by Sunfreight Forwarders due to the latter's own breach occasioned by the loss and
damage to the cargoes under its care and custody. As with the cited Torres-Madrid Brokerage case,
Sunfreight Forwarders, too, has the option to absorb the loss or to proceed after its missing driver,
the suspect in the hijacking incident