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.