Tension between vessel and arrastre operator

One of the hotly disputed issues in maritime cases is the liability of the vessel and arrastre operator. Who should be responsible for damaged cargo, if damages occurred during possession of the cargo by the arrastre operator?

The plaintiffs lawyers claim that the arrastre operator acts as an agent of the vessel in the discharging of the cargo, because the vessel “hired” the arrastre operator for discharging. Now is an arrastre operator really “hired” by the vessel?

Yes and no.

Yes, because there are formalities observed on the engagement of the arrastre operator’s services by the vessel, so in this sense, the vessel “hires” the arrastre operator.

No, because in each port there is only one arrastre operator; there is a monopoly in each port on arrastre services. So vessels have no choice but to “hire” the sole arrastre operator.

Oftentimes, the cargo suffers damage/loss only upon handling by the stevedores of the arrastre operator. Plaintiffs lawyers want the vessel to be responsible for the acts of the arrastre operator!

Plaintiffs lawyers reason out that the vessel’s responsibility over the cargo does not cease until receipt by its consignee; hence, since receipt by the arrastre is not yet receipt by the consignee, the vessel is still responsible for the cargo while being discharged by the arrastre operator.

Sadly, most trial courts agree with them. Though they don’t absolve the arrastre, they make the arrastre and vessel solidarily liable.

Solidarity is never presumed. There is no contract that makes both vessel and arrastre solidarily liable. There is no law nor jurisprudence that provides such solidary liability. Plaintiffs lawyers have a heyday on this.

Difficulties Faced by a Maritime Defense Lawyer

Cargo lawyers in maritime cases have it easy. They only need to prove the shipment, contract of carriage, and presence of damages on the cargo upon delivery. They need not establish a causal connection between the damages and a vessel’s acts or omissions. The law, Art. 1735 of the Civil Code, makes the causal connection – if the cargo is found to be damaged upon discharge, the vessel is presumed to be negligent and hence liable. Though only a disputable presumption, the vessel must show evidence to the contrary, that it was not negligent in its carriage of the cargo. Unfortunately for the vessel, speculation is not enough; could-haves (could have been caused cargo handlers, stevedores, etc.) won’t save the day for them.

The vessel has another defense. Even if the cargo is damaged, the presumption of negligence will not apply if the vessel can prove that it exercised extraordinary diligence in the carriage of the cargo. But here’s another difficulty – what constitutes extraordinary diligence? The law and the Supreme Court are silent on this. And there is difficulty also in actually proving it. The people competent to testify on the exercise of extraordinary diligence are the ship’s crew. By the time a case is filed, the ship crew concerned is somewhere around the world’s oceans, onboard another ship – how can we bring the witness back to the Philippines. Tracking down this witness is not impossible, but the hassle of pulling him out of duty just to testify in a Philippine court is a logistical nightmare.

The Start of Something Special

I've decided to join the universe of web law blogging, or "blawg" for lawyers. I hope to start a forum for interaction on my specialty, maritime law , and also on aviation and land carriage law