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Riding on the right issues

(Article published in the Jan 27, 2010 issue of Manila Standard Today)  

Congressman Rodolfo Plaza, of Agusan del Sur, if he wants the electorate to seriously consider his candidacy for the Senate, needs to show more acumen in targeting the right issues than what he exhibited last week when trained his guns on Marina Administrator Maria Elena Bautista.

         In a privilege speech, cloaked with parliamentary immunity that protects him from suit but does not excuse him from the obligation to know the facts, Hon. Plaza accused Ms. Bautista of  having had “77 foreign trips in the 18 months she was in the Marina.” Like a true Atenean, Bautista responded in standard jesuit debating style: show your opponent to be wrong; prove yourself to be right. 

“If Congressman Plaza’s claim were true, it would appear that I made 4.8 trips a month during that span of time,” Bautista said, adding “That is physically impossible.”  Then, she told the correct number, just eight. All of them to London to, as she was by virtue of her office expected to do, attend conferences of the International Maritime Organization; six trips were funded by the government, two by the United Nations.


          That humiliating put-down, however, ought not deter Cong. Plaza from trying to get his issues right.  If, as I assume he is, he is sincere in his crusade for water travel safety, he  may wish to considerd, instead of fighting with a woman, picking a fight with DOTC Secretary Leandro R. Mendoza for his resolution, dated 28 August 2009, in BMI Case No. 941-08, re: capsizing of the M/V “Princess of the Stars” in the vicinity of of Sitio Cabirangahan, Taclobo, San Fernando, Sibuyan on 21 June 2008.

In his 28 August 2009 Resolution, Secretary Mendoza, contrary to the findings and recommendations of the Board of Marine Inquiry, exonerated the shiponwer, Sulpicio Lines, Inc, and put the blame entirely on missing Captain Florencio M. Marimon, Sr. Despite his being an employee of Sulpicio Lines, Inc, the shipping company, Marimon, claims the good Secretary, “had the overall overriding authority to dictate the movement of his vessel.”

The legal authority for such a position is purportedly IMO Regulation 34, Chapter V of the International Convention for the Safety of Life at Sea, 1974 and its protocol of 1988, which states that “the owner…shall not prevent or restrict the master of the ship from taking or executing any decision which, in the master’s professional judgment is necessary for safe navigation and protection of the marine environment.”

In other words, the Secretary held the view that Sulpicio Lines, Inc. could not have prevented the tragedy since the voyage was exclusively within the Captain’s prerogative to decide and the Sulpicio Lines, Inc. was powerless to stop him. 

With due respects, I beg to disagree.  Article 1733 of the Civil Code imposes on common carriers the obligation “to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them…” In fact, the presumption in the case of death or injuries to passengers, is that common carriers acted negligently, unless they prove that they observed extraordinary diligence…”

The liability of the negligent employer is stated in Article 1759.  lt says that “common carriers are liable for the death or injuries to passengers through the negligence or willful acts of the former’s employees” even in those cases where “such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers.” In other words, the burden of proving that Sulpicio Lines, Inc. exercised the required extraordinary diligence fell on Sulpicio Lines, Inc. itself.

In that connection, it is important to remember that the core relationship between the passengers of the ill-fated M/V “Princess of the Stars” and Sulpicio Lines, Inc., is contractual.  The contract of carriage is not between the captain and the passengers; it is between Sulpicio Lines, Inc. and the passengers.  Under that contract of carriage, Sulpicio Lines, Inc. was obligated to transport the said passengers to their destination safely.  The mere fact that the passengers did not reach their destination is ipso facto an indication that the contract had been breached.  And the obligation to prove that, despite the breach, Sulpicio Lines, Inc. is not to be made liable, does not depend on the evidence of the passengers but on the ability of Sulpicio Lines to exculpate itself. 

The practical impact of Secretary Mendoza’s Resolution is to limit ability of the victims and their families to collect any monetary compensation to the amount imposed by R.A. No. 9295.  That law requires the payment of  Php 200,000 for every dead passenger and of Php 20,000.00 for each survivor.  Most of the victims are poor; the rich and the middle class take the plane.  The poor are expected, as they have often done, to be satisfied by those amounts.  And small (individually) though it may be, that compensation does not come out of the pocket of Sulpicio Lines, Inc.  That is paid for by the mandatory insurance required under R.A. No. 9295. 

Sulpicio Lines, Inc., in fact, may have gained monetarily from the tragedy.  From newspaper reports, we learn that Sulpicio Lines, Inc. had formally abandoned the vessel and declared a total loss.  By so doing, it had become entitled to Php 350 million, which is the amount of Hull and Machinery insurance that it has on the sunken ship.  With all the victims already pacified, the Php 350 million is for Sulpicio Lines, Inc. to keep. 

That could explain, to some extent, why Sulpicio Lines, Inc. is still plying the seas, despite the fact that, according to the Lloyds of London, it had suffered 7 sinkings (3 of which are in a typhoon); 7 engine troubles; 6 collisions, 17 groundings, and other mishaps, all totaling 45 incidents.  About 6,000 passengers had died in the hands of Sulpicio Lines, Inc., 4,500 from M/S Dona Paz ‘s collision alone; about 800 from the  M/V Princess of the Stars.

Congressman Rodolfo Plaza, of Agusan del Sur, would do well to attack Sulpicio Lines, Inc. instead of Ms. Maria Elena Bautista. 

But before that, he may wish to recall whether, and, if at all, how many times, he had asked Sulpicio Lines, Inc. to give him,or members of his family, or any of his constituents, free passage on board any of its vessels, accident prone though they might or might not be.