THIRD DIVISION

[G.R. No. 143008. June 10, 2002]

SMITH BELL DODWELL SHIPPING AGENCY CORPORATION, petitioner, vs. CATALINO BORJA and INTERNATIONAL TO WAGE AND TRANSPORT CORPORATION, respondents.

D E C I S I O N

PANGANIBAN, J.:

The owner or the person in possession and control of a vessel is liable for all natural and proximate damages caused to persons and property by reason of negligence in its management or navigation. The liability for the loss of the earning capacity of the deceased is fixed by taking into account the net income of the victim at the time of death -- of the incident in this case -- and that person’s probable life expectancy.

The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, challenging the March 6, 2000 Decision[1] and the April 25, 2000 Resolution[2] of the Court of Appeals[3] (CA) in CA-GR CV No. 57470. The assailed Decision disposed as follows:

“WHEREFORE, premises considered, the instant appeal is hereby DENIED. The questioned decision of the lower court is hereby AFFIRMED in toto. No pronouncement as to costs.”[4]

Reconsideration was denied in the assailed Resolution.

The Facts

The facts of the case are set forth by the CA as follows:

“It appears that on September 23, 1987, Smith Bell [herein petitioner] filed a written request with the Bureau of Customs for the attendance of the latter’s inspection team on vessel M/T King Family which was due to arrive at the port of Manila on September 24, 1987.

“Said vessel contained 750 metric tons of alkyl benzene and methyl methacrylate monomer.

“On the same day, Supervising Customs Inspector Manuel Ma. D. Nalgan instructed [Respondent Catalino Borja] to board said vessel and perform his duties as inspector upon the vessel’s arrival until its departure. At that time, [Borja] was a customs inspector of the Bureau of Customs receiving a salary of P31,188.25 per annum.

"At about 11 o’clock in the morning on September 24, 1987, while M/T King Family was unloading chemicals unto two (2) barges [--] ITTC 101 and CLC-1002 [--] owned by [Respondent] ITTC, a sudden explosion occurred setting the vessels afire. Upon hearing the explosion, [Borja], who was at that time inside the cabin preparing reports, ran outside to check what happened. Again, another explosion was heard.

“Seeing the fire and fearing for his life, [Borja] hurriedly jumped over board to save himself. However, the [water] [was] likewise on fire due mainly to the spilled chemicals. Despite the tremendous heat, [Borja] swam his way for one (1) hour until he was rescued by the people living in the squatters’ area and sent to San Juan De Dios Hospital.

“After weeks of intensive care at the hospital, his attending physician diagnosed [Borja] to be permanently disabled due to the incident. [Borja] made demands against Smith Bell and ITTC for the damages caused by the explosion. However, both denied liabilities and attributed to each other negligence.”[5]

The trial court[6] (RTC) ruled in favor of Respondent Borja and held petitioner liable for damages and loss of income. The RTC disposed as follows:

“WHEREFORE, premises considered, judgment is hereby rendered ordering [Petitioner] Smith Bell Dodwell [S]hipping Agency Corporation to pay [Borja]:

1. The amount of P495,360.00 as actual damages for loss of earning capacity:

2. The amount of P100,000.00 for moral damages; and

3. The amount of P50,000.00 for and as reasonable attorney’s fees.

“The cross-claim of [Petitioner] Smith Bell Dodwell Shipping Agency Corporation against co-defendant International Towage and Transport Corporation and the latter’s counterclaim against [Borja] and cross-claim with compulsory counterclaim against Smith Bell are hereby ordered dismissed.”[7]

Ruling of the Court of Appeals

Affirming the trial court, the CA rejected the plea of petitioner that it be exonerated from liability for Respondent Borja’s injuries. Contrary to the claim of petitioner that no physical evidence was shown to prove that the explosion had originated from its vessel, the CA held that the fire had originated from M/T King Family. This conclusion was amply supported by the testimonies of Borja and Eulogio Laurente (the eyewitness of International Towage and Transport Corporation or ITTC) as well as by the investigation conducted by the Special Board of Marine Inquiry and affirmed by the secretary of the Department of National Defense. On the other hand, the RTC, which the CA sustained, had not given probative value to the evidence of petitioner, whose sole eyewitness had not shown up for cross-examination.

Hence, this Petition.[8]

The Issues

In its Memorandum,[9] petitioner raises the following issues:

“1. Whether petitioner should be held liable for the injuries of Respondent Catalino Borja.

“2. Whether Respondent ITTC should be held liable for the injuries of Respondent Catalino Borja.

“3. Assuming without admitting that Respondent Catalino Borja is entitled to damages, whether Respondent Borja is entitled to the amount of damages awarded to him by the trial court.”[10]

Simply put, these issues can be summed up in these two questions: (1) Who, if any, is liable for Borja’s injuries? (2) What is the proper amount of liability?

This Court’s Ruling

The Petition is partly meritorious.

First Issue:

Responsibility for Injuries

Petitioner avers that both lower courts labored under a misapprehension of the facts. It claims that the documents adduced in the RTC conclusively revealed that the explosion that caused the fire on M/T King Family had originated from the barge ITTC-101, a conclusion based on three grounds. First, the Survey Report (Exh. “10”) dated October 21, 1987 submitted by the Admiral Surveyors and Adjusters, Inc., showed that no part of M/T King Family sustained any sharp or violent damage that would otherwise be observed if indeed an explosion had occurred on it. On the other hand, the fact that the vessel sustained cracks on its shell plating was noted in two Survey Reports from Greutzman Divers Underwater Specialist, dated October 6, 1987 (Exh. “11”), and during the underwater inspection on the sunken barge ITTC-101.

Second, external fire damage on the hull of M/T King Family indicated that the fire had started from outside the vessel and from ITTC-101. The port side of the vessel to which the ITTC barge was tied was completely gutted by fire, while the starboard side to which the barge CLC-1002 was tied sustained only slight fire damage.

Third, testimonial evidence proved that the explosion came from the barge of the ITTC and not from its vessel. Security Guard Vivencio Estrella testified that he had seen the sudden explosion of monomer on the barge with fire that went up to about 60 meters. Third Mate Choi Seong Hwan and Second Mate Nam Bang Choun of M/T King Family narrated that while they were discharging the chemicals, they saw and heard an explosion from the barge ITTC-101. Chief Security Guard Reynaldo Patron, in turn, testified that he was 7 to 10 meters away from the barge when he heard the explosion from the port side of M/T King Family and saw the barge already on fire.

We are not persuaded. Both the RTC and the CA ruled that the fire and the explosion had originated from petitioner’s vessel. Said the trial court:

“The attempts of [Petitioner] Smith Bell to shift the blame on x x x ITTC were all for naught. First, the testimony of its alleged eyewitness was stricken off the record for his failure to appear for cross-examination (p. 361, Record). Second, the documents offered to prove that the fire originated from barge ITTC-101 were all denied admission by the [c]ourt for being, in effect, hearsay (pp. 335 and 362). x x x Thus, there is nothing in the record to support [petitioner’s] contention that the fire and explosion originated from barge ITTC-101.”[11]

We find no cogent reason to overturn these factual findings. Nothing is more settled in jurisprudence than that this Court is bound by the factual findings of the Court of Appeals when these are supported by substantial evidence and are not under any of the exceptions in Fuentes v. Court of Appeals;[12] more so, when such findings affirm those of the trial court.[13] Verily, this Court reviews only issues of law.

Negligence is conduct that creates undue risk of harm to another. It is the failure to observe that degree of care, precaution and vigilance that the circumstances justly demand, whereby that other person suffers injury.[14] Petitioner’s vessel was carrying chemical cargo -- alkyl benzene and methyl methacrylate monomer.[15] While knowing that their vessel was carrying dangerous inflammable chemicals, its officers and crew failed to take all the necessary precautions to prevent an accident. Petitioner was, therefore, negligent.

The three elements of quasi delict are: (a) damages suffered by the plaintiff, (b) fault or negligence of the defendant, and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages inflicted on the plaintiff.[16] All these elements were established in this case. Knowing fully well that it was carrying dangerous chemicals, petitioner was negligent in not taking all the necessary precautions in transporting the cargo.

As a result of the fire and the explosion during the unloading of the chemicals from petitioner’s vessel, Respondent Borja suffered the following damage: and injuries: “(1) chemical burns of the face and arms; (2) inhalation of fumes from burning chemicals; (3) exposure to the elements [while] floating in sea water for about three (3) hours; (4) homonymous hemianopsia or blurring of the right eye [which was of] possible toxic origin; and (5) [c]erebral infract with neo-vascularization, left occipital region with right sided headache and the blurring of vision of right eye.”[17]

Hence, the owner or the person in possession and control of a vessel and the vessel are liable for all natural and proximate damage caused to persons and property by reason of negligent management or navigation.[18]

Second Issue:

Amount of Liability

Petitioner insists that Borja is not entitled to the full amount of damages awarded by the lower courts. It disputes the use of his gross earning as basis for the computation of the award for loss of earning capacity. Both courts, in computing the value of such loss, used the remaining years of the victim as a government employee and the amount he had been receiving per annum at the time of the incident.

Counsel for Respondent Borja, on the other hand, claims that petitioner had no cause to complain, because the miscomputation had ironically been in its favor. The multiplier used in the computation was erroneously based on the remaining years in government service, instead of the life expectancy, of the victim. Borja’s counsel also points out that the award was based on the former’s meager salary in 1987, or about 23 years ago when the foreign exchange was still P14 to $1. Hence, the questioned award is consistent with the primary purpose of giving what is just, moral and legally due the victim as the aggrieved party.

Both parties have a point. In determining the reasonableness of the damages awarded under Article 1764 in conjunction with Article 2206 of the Civil Code, the factors to be considered are: (1) life expectancy (considering the health of the victim and the mortality table which is deemed conclusive) and loss of earning capacity; (b) pecuniary loss, loss of support and service; and (c) moral and mental sufferings.[19] The loss of earning capacity is based mainly on the number of years remaining in the person’s expected life span. In turn, this number is the basis of the damages that shall be computed and the rate at which the loss sustained by the heirs shall be fixed.[20]

The formula for the computation of loss of earning capacity is as follows:[21]

Net earning capacity = Life expectancy x [Gross Annual Income - Living Expenses (50% of gross annual income)], where life expectancy = 2/3 (80 - the age of the deceased).[22]

Petitioner is correct in arguing that it is net income (or gross income less living expenses) which is to be used in the computation of the award for loss of income. Villa Rey Transit v. Court of Appeals[23] explained that “the amount recoverable is not the loss of the entire earning, but rather the loss of that portion of the earnings which the beneficiary would have received.” Hence, in fixing the amount of the said damages, the necessary expenses of the deceased should be deducted from his earnings.

In other words, only net earnings, not gross earnings, are to be considered; that is, the total of the earnings less expenses necessary in the creation of such earnings or income, less living and other incidental expenses. When there is no showing that the living expenses constituted a smaller percentage of the gross income, we fix the living expenses at half of the gross income. To hold that one would have used only a small part of the income, with the larger part going to the support of one’s children, would be conjectural and unreasonable.[24]

Counsel for Respondent Borja is also correct in saying that life expectancy should not be based on the retirement age of government employees, which is pegged at 65. In Negros Navigation Co, Inc. v. CA,[25] the Court resolved that in calculating the life expectancy of an individual for the purpose of determining loss of earning capacity under Article 2206(1) of the Civil Code, it is assumed that the deceased would have earned income even after retirement from a particular job.

Respondent Borja should not be situated differently just because he was a government employee. Private employees, given the retirement packages provided by their companies, usually retire earlier than government employees; yet, the life expectancy of the former is not pegged at 65 years.

Petitioner avers that Respondent Borja died nine years after the incident and, hence, his life expectancy of 80 years should yield to the reality that he was only 59 when he actually died.

We disagree. The Court uses the American Experience/Expectancy Table of Mortality or the Actuarial or Combined Experience Table of Mortality, which consistently pegs the life span of the average Filipino at 80 years, from which it extrapolates the estimated income to be earned by the deceased had he or she not been killed.[26]

Respondent Borja’s demise earlier than the estimated life span is of no moment. For purposes of determining loss of earning capacity, life expectancy remains at 80. Otherwise, the computation of loss of earning capacity will never become final, being always subject to the eventuality of the victim’s death. The computation should not change even if Borja lived beyond 80 years. Fair is fair.

Based on the foregoing discussion, the award for loss of earning capacity should be computed as follows:

Loss of earning = [2 (80-50)] x [(P2,752x12)-16,512]

capacity 3

= P330,240

Having been duly proven, the moral damages and attorney’s fees awarded are justified under the Civil Code’s Article 2219, paragraph 2; and Article 2208, paragraph 11, respectively.

WHEREFORE, the Petition is PARTLY GRANTED. The assailed Decision is AFFIRMED with the following MODIFICATIONS: petitioner is ordered to pay the heirs of the victim damages in the amount of P320,240 as loss of earning capacity, moral damages in the amount of P100,000, plus another P50,000 as attorney’s fees. Costs against petitioner.

SO ORDERED.

Sandoval-Gutierrez, and Carpio, JJ., concur.

Puno, J., (Chairman), abroad on official leave.

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[1] Rollo, pp. 39-45.

[2] Ibid., p. 57.

[3] Written by Justice Bernardo P. Abesamis with the concurrence of Justices Eugenio S. Labitoria (Division chairman) and Elvi John S. Asuncion (member).

[4] Assailed Decision, p. 7; rollo, p. 45.

[5] Ibid., pp. 1-4; ibid., pp. 39-42.

[6] Regional Trial Court (RTC) of Quezon City (Branch 81), docketed as Civil Case No. Q-88-800.

[7] Rollo, p. 40.

[8] The case was deemed submitted for decision on May 9, 2001, when this Court received Respondent Borja’s Memorandum signed by Attys. Amador Z. Tolentino Jr. and Ronald Rex S. Recidoro of Manalo Puno Jocson & Placido Law Offices. Instead of filing a memorandum, Respondent ITTC merely adopted the arguments of Respondent Borja “insofar as the same affirms the correctness of the assailed Decision and Resolution” per its Manifestation and Motion dated April 26, 2001, signed by Attys. Manuel Joseph R. Bretaña III and Simonette E. Sibal of Castillo and Poblador.

[9] Signed by Atty. Charles Jay D. de la Cruz of Del Rosario and Del Rosario.

[10] Page 8; rollo, p. 107.

[11] CA Decision, pp. 5-6; rollo, pp. 43-44.

[12] 268 SCRA 703, 708-709, February 26, 1997; Baricuatro Jr. v. CA, supra, 325 SCRA 137, 145, February 9, 2000.

[13] Borromeo v. Sun, 317 SCRA 176, 182, October 22, 1999; Compania Maritima, Inc. v. Court of Appeals, 318 SCRA 169, 177, November 16, 1999.

[14] Valenzuela v. Court of Appeals, 253 SCRA 303, 320, February 7, 1996; Bulilan v. Commission on Audit, 300 SCRA 445, 452, December 22, 1998; Jarco Marketing Corp. v. Court of Appeals, 321 SCRA 375, 386, December 21, 1999.

[15] Rollo, p. 27.

[16] Philippine Bank of Commerce v. Court of Appeals, 269 SCRA 695, 702-703, March 14, 1997; FGU Insurance Corporation v. Court of Appeals, 287 SCRA 718, 720-721, March 23, 1998.

[17] Rollo, p. 129.

[18] Far Eastern Shipping Company v. Court of Appeals, 297 SCRA 30, 87, October 1, 1998.

[19] Baliwag Transit, Inc. v. Court of Appeals, 262 SCRA 230, 235, September 20, 1996.

[20] Ibid., People v. Arellano, 334 SCRA 775, 792-793, June 30, 2000; Pestaño v. Sumayang, 346 SCRA 870, 880, December 4, 2000.

[21] People v. Matignas, GR No. 126146, March 12, 2002, citing People v. Verde, 302 SCRA 690, 707, February 10, 1999.

[22] Ibid., citing People v. Sanchez, GR Nos. 121039-45, October 18, 2001.

[23] 31 SCRA 511, 517, February 18, 1970; People v. Marollano, 276 SCRA 84, 115, July 24, 1997.

[24] Negros Navigation Co., Inc. v. Court of Appeals, 281 SCRA 534, 548, November 7, 1997.

[25] Ibid., pp. 546-547.

[26] People v. Villanueva, 302 SCRA 380, 401, January 29, 1999.