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[ G.R. No. 138129. June 14, 1999]

ENCINAS SHIPPING LINES vs. ATLAS FERTILIZER CORP.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 14, 1999.

G.R. No. 138129 (Encinas Shipping Lines vs. Atlas Fertilizer Corporation, Provident Insurance Corporation and the Honorable Court of Appeals.)

The petition before us filed under Rule 65, implores the Court to review and set aside the decision of the Court of Appeals promulgated on July 16, 1998 in CA-G.R. No. CV 452277 entitled Atlas Fertilizer Corporation, et al. vs. Encinas Shipping Lines, and its resolution of January 18, 1999, denying petitioner's motion for reconsideration. The assailed judgment affirmed in toto the decision of the Regional Trial Court of Makati. The decretal portion of the said decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant Encinas Shipping Lines to pay plaintiff Provident Insurance Corporation, the following:

"(A) The sum of P890,688.05 with legal interest from November 22, 1991, filing of the complaint, until it is fully paid;

"(B) The sum of P89,000.00 as reasonable attorney's fees; and

"(C) Costs of the suit."

SO ORDERED. 1 [pp. 12-13, Rollo.]

In a nutshell, herein petitioner asserts that the CA committed grave abuse of discretion when it held that Encinas Shipping Lines is liable to private respondent Provident Insurance Corporation.

Petitioner Encinas Shipping Lines asserts that there was also grave abuse of discretion on the part of the court a quo and of the trial court when they failed to consider the fact that it is the delay in the unloading of the cargo by Atlas Fertilizer Corporation which was the proximate cause of the damage to the cargo. It is further contended that it was also grave abuse of discretion on the part of the courts below in not considering the fact that the proximate cause of the damage was by reason of the perils of the sea.

Petitioner is the owner of M/V ANTONIA, a commercial vessel contracted to transport a bulk shipment of 468.83 MT of DAP fertilizer loaded from Isabel, Leyte to Toledo City for delivery to Atlas Fertilizer Corporation, the consignee. Private respondent, Provident Insurance Corporation, upon the other hand, is the insurer of the cargo under an open marine policy. While the vessel was able to dock on time, the unloading of the cargo was not continuous due to intermittent rains and bad weather. Furthermore, the vessel made several movements that disrupted the unloading operations. Eventually, another vessel his the M/V ANTONIA which caused a hole on its starboard side. Consequently, the DAP fertilizers got well, hence, Atlas demanded recovery of the value of the remaining fertilizer that was damaged.

Private respondent Provident Insurance Corporation paid Atlas all its claims, thereby subrogating itself to all the rights of Atlas with respect to the destroyed shipment.

In essence, it is the assertion of petitioner that the two courts below erred when they failed to correctly determine the proximate cause which caused the damage to the unloaded fertilizer.

After due consideration, the Court holds that the determination of the proximate cause is a factual issue which is beyond its power to review. Factual findings of the ca are conclusive on the parties and carry even more weight when said court affirms the factual findings of the trial court.

Moreover, where the ground invoked in a special civil action is abuse of discretion, the abuse must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or hostility (Republic vs. Villarama, Jr., 278 SCRA 736 [1997]). The petition failed to sufficiently show that there was indeed grave abuse of discretion on the part of respondent ca. Moreover, the assailed decision appears to be in accord with applicable law and jurisprudence.

Once, again, if only to explain this last point have we bothered to come out with this extended resolution. The petition, filed under Rule 65, is the wrong mode for seeking a review of a decision of the Court of Appeals, the proper manner therefor being that provided under Rule 45 in which case, the petition should be filed within fifteen (15) days from receipt by petitioner of the resolution of the Court of Appeals denying its motion for reconsideration. Here, petitioner received such resolution on January 27, 1999, but filed the petition only on March 29, 1999, which latter date is way beyond the limit of 15 days provided under Rule 45. Plainly then, the recourse under Rule 65 is a ploy to get out of Rule 45, a ruse by which petitioner would seek to revive a lost appeal.

WHEREFORE, petition is dismissed.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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