[ G.R. No. 32986. November 11, 1930 ] 56 Phil. 758
[ G.R. No. 32986. November 11, 1930 ]
FRANCISCO JARQUE, PLAINTIFF AND APPELLEE, VS. SMITH, BELL & CO., LTD., ET AL., DEFENDANTS. UNION FIRE INSURANCE CO., APPELLANT. D E C I S I O N
OSTRAND, J.:
The plaintiff was the owner of the motorboat Pandan and held a marine insurance policy for the sum of P45,000 on the boat, the policy being issued by the National Union Fire Insurance Company and according to the provisions of a “rider” attached to the policy, the insurance was against the “absolute total loss of the vessel only.” On October 31, 1928, the ship ran into very heavy sea off the Island of Ticlin, and it became necessary to jettison a portion of the cargo. As a result of the jettison, the National Union Fire Insurance Company was assessed in the sum of P2,610.86 as its contribution to the general average. The insurance company, insisting that its obligation did not extend beyond the insurance of the “absolute total loss of the vessel only, and to pay proportionate salvage of the declared value,” refused to contribute to the settlement of the general average. The present action was thereupon instituted, and after trial the court below rendered judgment in favor of the plaintiff and ordered the defendant National Union Fire Insurance Company to pay the plaintiff the sum of P2,610.86 as its part of the indemnity for the general average brought about by the jettison of cargo. The insurance company appealed to this court and assigns as errors (1) “that the lower court erred in disregarding the typewritten clause endorsed upon the policy, Exhibit A, expressly limiting insurer’s liability thereunder of the total loss of the wooden vessel Pandan and to proportionate salvage charges,” and (2) “that the lower#court erred in concluding that defendant and appellant, National Union Fire Insurance Company is liable to contribute to the general average resulting from the jettison of a part of said vessel’s cargo.”
I. As to the first assignment of error, little need be said. The insurance contract, Exhibit A, is printed in the English common form of marine policies. One of the clauses of the document originally read as follows:
“Touching the Adventures and Perils which the said National Union Fire Insurance Company is content to bear, and to take upon them in this Voyage; they are of the Seas, Men-of-War, Fire, Pirates, Rovers, Thieves, Jettison, Letters of Mart and Countermart, Surprisals, and Takings at Sea. Arrests, Restraints and Detainments, of all Kings, Princes and People of what Nation, Condition or Quality soever; Barratry of the Master and Marines, and of all other Perils, Losses and Misfortunes, that have or shall come to the Hurt, Detriment, or Damage of the said Vessel or any part thereof; and in case of any Loss or Misfortunes, it shall be lawful for the Assured, his or their Factors, Servants, or assigns, to sue, labour and travel for, in and about the Defence. Safeguard, and recovery of the said Vessel or any part thereof, without Prejudice to this Insurance; to the Charges whereof the said Company, will contribute, according to the rate and quantity of the sum herein assured. And it is agreed that this Writing or Policy of Insurance shall be of as much force and Virtue as the surest Writing or Policy of Insurance made in London.”
Attached to the policy over and above the said clause is a “rider” containing typewritten provisions, among which appears in capitalized type the following clause:
“AGAINST THE ABSOLUTE TOTAL LOSS OF THE VESSEL ONLY, AND TO PAY PROPORTIONATE SALVAGE CHARGES OF THE DECLARED VALUE.”
At the bottom of the same rider following the typewritten provisions therein set forth are the following words: “Attaching to and forming part of the National Union Fire Insurance Co., Hull Policy No. 1055.”
It is a well settled rule that in case repugnance exists between written and printed portions of a policy, the written portion prevails, and there can be no question that as far as any inconsistency exists, the above-mentioned typed “rider” prevails over the printed clause it covers. Section 291 of the Code of Civil Procedure provides that “when an instrument consists partly of written words and partly of a printed form and the two are inconsistent, the former controls the latter.” (See also Joyce on Insurance, 2d ed., sec. 224, page 600; Arnould on Marine Insurance, 9th ed,, sec. 73; Marine Equipment Corporation vs. Automobile Insurance Co., 24 Fed. (2d), 600; and Marine Insurance Company vs. McLahanan, 290 Fed., 685, 688.)
II. In the absence of positive legislation to the contrary, the liability of the defendant insurance company on its policy would, perhaps, be limited to “absolute loss of the vessel only, and to pay proportionate salvage of the declared value.” But the policy was executed in this jurisdiction and “warranted to trade within the waters of the Philippine Archipelago only.” Here the liability for contribution in general average is not based on the express terms of the policy, but rests upon the theory that from the relation of the parties and for their benefit, a quasi contract is implied by law. Article 859 of the Code of Commerce is still in force and reads as follows:
“Art. 859. The underwriters of the vessel, of the freight, and of the cargo shall be obliged to pay for the indemnity of the gross average in so far as is required of each one of these objects respectively.”
The article is mandatory in its terms, and the insurers, whether for the vessel or for the freight or for the cargo, are bound to contribute to the indemnity of the general average. And there is nothing unfair in that provisions; it simply places the insurer on the same footing as other persons who have an interest in the vessel, or the cargo therein, at the time of the occurrence of the general average and who are compelled to contribute (art. 812, Code of Commerce).
In the present case it is not disputed that the ship was in grave peril and that the jettison of part of the cargo was necessary. If the cargo was in peril to the extent of call for general average, the ship must also have been in great danger, possibly sufficient to cause its absolute loss. The jettison was therefore as much to the benefit of the underwriter as to the owner of the cargo. The latter was compelled to contribute to the indemnity; why should not the insurer be required to do likewise? If no jettison had taken place and if the ship by reason thereof had foundered, the underwriter’s loss would have been many times as large as the contribution now demanded.
The appealed judgment is affirmed with the costs against the appellant. So ordered.
Malcolm, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.