[ G.R. No. 22784. March 28, 1969 ] 137 Phil. 194
[ G.R. No. 22784. March 28, 1969 ]
INSURANCE COMPANY OF NORTH AMERICA, PLAINTIFF-APPELLANT, VS. OSAKA SHOSEN KAISHA (O.S.K-LINE), AND/OR AMERICAN STEAMSHIP AGENCIES, INC., BUREAU OF CUSTOMS AND/OR CUSTOMS ARRASTRE SERVICE, DEFENDANTS-APPELLEES. D E C I S I O N
BARREDO, J.:
Appeal from the order of the Court of First Instance of Manila dated February 17, 1964 dismissing its Civil Case No. 55836 as to therein defendants Bureau of Customs and/or Customs Arrastre Service upon a motion to dismiss filed by said defendants before answer, under Rule 8 of the Rules of Court of 1940. (Rule 16 of the present Rules.)
On December 27, 1963, plaintiff-appellant Insurance Company of North America instituted the action above-mentioned before the a quo against defendants-appellees Osaka Shosen Kaisha (O.S.K.-Line) and/or American Steamship Agencies, Inc., and Bureau of Customs and/or Customs Arrastre Service. The complaint filed therein alleged, that: On or about October 29, 1962, the SS “HAGUE MARU” took on board at the port or Hamburg, Germany, 22 cases of carpenter’s and mechanic’s tools, valued at $3,648.92 C & F Manila, shipped by H. Beutler & Co. of Germany to the consignee of the goods, Solex Tool Corporation, Manila; in Japan, the said cargo was transhipped from the SS “HAGUE MARU” on board the SS “KIKUKO MARU” which supposedly discharged the same in Manila in good order condition with the exception of three(3) cases which were landed in bad order, unto the custody of defendant Bureau of Customs and/or Customs Arrastre Service; the latter thereafter failed to deliver (to the consignee) portion of the goods, and claims for the value of the lost goods, in the amount of P1,279.49, were filed against both defendants Osaka Shosen Kaisha (O.S.K.-Line) and/or American Steamship Agencies, Inc., as owners and/or operators of the above-named vessels and as agent and/or representative of said owners, respectively, defendants Bureau of Customs, operator of the arrastre service at the port of Manila and its subsidiary, Customs Arrastre Service, as well as against plaintiff Insurance Company of North America, as insurer of the said goods; said defendants failed and refused to pay; herein plaintiff was compelled to pay the value of the lost goods and was thereby subrogated to the rights of the owners thereof; the loss occurred while defendant carrier had custody of the cargo and failed to discharge the same or, after discharge of the cargo, while defendant Customs Arrastre Service had custody of the goods, in either of which case, there was violation of the duty to properly and safely carry and discharge, the goods on the part of the carrier or, in the alternative, to make delivery of the goods on the part of defendant Customs Arrastre Service after discharge; demands for reimbursement were duly made by plaintiff but defendants refused; plaintiff was thereupon compelled to obtain the services of counsel incurring thereby further damages as or by way of attorney’s fees; and plaintiff is at present uncertain against whom of defendants it is entitled to relief.
As to the personality of the defendants Bureau of Customs and/or Customs Arrastre Service, the allegation in said complaint reads:
“3. Defendant Bureau of Customs is to the best information, knowledge and belief of plaintiff, a government office organized under the Customs Law, the operator of the arrastre service at the Port of Manila since November 21, 1962 through its Branch office/subsidiary, defendant Customs Arrastre Service, charged with the duty of receiving imported cargo discharged from ocean vessels and of safekeeping the same for delivery to consignees or owners thereof upon delivery being authorized by defendant Bureau of Customs and upon the arrastre fee being paid, with office address at the Terminal Building, Port Area,. Manila, where it may be served with summons.” (Record on Appeal, p. 3)
On these premises, plaintiff prayed for judgment ordering defendants to pay, inter alia, “jointly and severally or whichever of defendants may be found liable to pay plaintiff”, the value of the lost goods.
As already stated, upon motion of defendants Bureau of Customs and/or Customs Arrastre Service, based on the ground that the cause of action alleged against them did not come within the jurisdiction of the court of first instance but within that of the City Court of Manila, on February 17, 1964, the court a quo dismissed the case against said defendants. Upholding the contention of said defendants, His Honor held that “in the instant case …. the defendant Osaka Shosen Kaisha (O.S.K) is sued for breach of contract of carriage while the Bureau of Customs and/or Customs Arrastre Service is sued for breach of contract of deposit. The contract of carriage here involved is a maritime transaction and actions arising from it are cognizable by the local Court of First Instance. The contract of deposit, on the other hand, is, not maritime and actions arising from it in an amount not exceeding P10,000 are cognizable by the local City Court. Section 5 of Rule 2 subjects the joinder of causes of action ’to rules regarding jurisdiction, venue, and joinder of parties.’ In view of the fact that the action against movant is cognizable by the local City Court while the action against Osaka Shosen Kaisha is cognizable by the local Court of First Instance, permissive joinder of parties or causes of action in the instant case cannot be properly allowed. x x x. The plaintiff must, therefore, determine for sure which party to sue and where.” (pp. 13-14, Record on Appeal.)
From this order of dismissal, plaintiff has appealed to this Court assigning only two errors, namely:
I
“THE LOWER COURT ERRED IN DISMISSING THE ACTION AS TO THE BUREAU OF CUSTOMS AND/OR CUSTOMS ARRASTRE SERVICE ON A FINDING THAT IT HAD NO JURISDICTION OVER THE APPELLANT’S CAUSE OF ACTION AS TO SAID DEFENDANT FOR AN AMOUNT LESS THAN P10,000.00.
II
“THE LOWER COURT ERRED IN FINDING THAT THE JOINDER OF PARTIES AND OF THE CAUSE OF ACTION IN THE INSTANT SUIT CANNOT BE PROPERLY ALLOWED.”
which are discussed together in appellant’s brief.
While the two errors thus assigned by appellant are, in view of the majority of this Court, sustainable, considering the already existing long line of precedents[1] holding that the ground of dismissal invoked by the trial court, as above-quoted, is erroneous,[2] We are, nevertheless, of the unanimous opinion that the present appeal cannot prosper, because the case of the plaintiff-appellant suffers from a more obvious and indubitable fatal defect. It is already definitely settled that herein defendants-appellees, the Bureau of Customs and/or the Customs Arrastre Service, being mere arms of the national government, are protected by the non-suability of the Republic of the Philippines whenever, it has not given its consent to be sued,[3] particularly, where, as in this case, there is no allegation in the complaint that said defendants, much less the Republic, has given such consent.[4] The fact that defendants-appellees have not raised such defense at any stage of this case is of no moment. Indeed, whether We hold that the matter of non-suability is jurisdictional, either over the subject-matter or of the person of the defendants, or We consider it as failure to state a cause of action, when the consent of the State is not alleged in the complaint,[5] as in this case, in line with the decision of this Court in American Insurance Co. vs. Macondray & Co., (see footnote No. 4) We are all agreed that whichever of these three views may be the most accurate one, said defense may be invoked by the courts sua sponte at any stage of the proceedings. Since February 27, 1968, this Court has dismissed cases similar to the one before Us now even without awaiting for the briefs of the parties, in order to save them and this Court needless expenses of time, money and effort.” (Domestic Ins. Co. of the Phil. vs. American Pioneer Line, supra, and later in Firemen’s Fund Ins. Co. vs. Maersk Line Far East Service, et al., G. R. No. L-27189, 1969).
WHEREFORE, the order of dismissal of the lower court is affirmed, with costs against appellant.
Concepcion, C.J., Reyes, JBL, Dizon, Makalintal, Zaldivar, Sanchez, Capistrano, and Teehankee, JJ., concur. Ruuiz Castro, Fernando, JJ., concur in the result.