On 16 August 1954 the plaintiff brought an action against the defendant in the Court of First Instance  of  Manila. In its complaint it alleges that  it insured the vessels SS "Nagara" and SS "Ceylon", owned and operated by the Swedish  East Asiatic Company,  against loss  or  damage to cargo; that in August 1947, the defendant loaded copra on board the SS "Nagara" at Siain, Quezon and at Tabaco and Legaspi, Albay,  for shipment to Karlshamm, Sweden, and  to Gydnia, Poland; that thereafter  the  defendant informed  the agent  of the  vessel  in the Philippines, the International Harvester Company of the Philippines,  that he had loaded 2,000 long tons  or 2,032,000 gross  kilos of copra on board the SS "Nagara"; that relying on the defendant's representation, the agent issued the corresponding bills of lading in favor of the consignees with the qualification that the copra loaded was "said to  weigh" 2,000 long tons or 2,032,000  gross kilos;  that in November, 1947, the defendant loaded copra on board the SS "Ceylon" at Siain, Quezon, Tabaco and Legaspi, Albay, and Manila for shipment  to  Karlshamm,  Sweden,  and  to  Gydnia, Poland; that thereafter the  defendant informed the  same agent that he had loaded 2,032 tons or 2,064,512 gross kilos of copra on board the SS "Ceylon"; that relying on the defendant's representation, the agent-issued the corresponding bills of lading in favor of the consignees with the qualification that the  copra was  "said  to  weigh" 2,032 tons or 2,064,512  gross  kilos; that upon  arrival of the vessels at the ports  of destination, the cargoes were unloaded and delivered  to their respective consignees;  that after  unloading the  said cargoes  a check up of  their respective  weights  showed  the  following shortage in weight:

(1) SS "NAGARA" at Karlshamm 14.3185% of quantity stated in the bill of lading;
(2) SS "NAGARA" at Gydnia 462,751 tons or 23% of quantity stated in the bill of lading;
(3) SS "CEYLON" at Karlshamm 13.9379% of quantity stated in the bill of lading;

that the consignees filed claims against the  owner of the vessels  for the value of the total shortage in  the sum of $76,829.42, U.S.  currency,  and  reimbursement of  freight charges in the sum of $14,687,  U.S. currency;  that on or about 21 February 1950 the consignees brought an action in the  Magistrate's Court of Stockholm, Sweden,  against the owner  of the vessels and the defendant herein to collect and recover the  two  sums  of money; that the defendant herein  objected to  the   jurisdiction  of  the Swedish court over his  person  and the action  against him was  dismissed; that  the  defendant  did not  load  the exact   weight  of  copra represented by him to have been loaded  on  the  two vessels which accounts for the  difference in  weight  of  the copra unloaded at the ports of destination    as compared to that appearing in the bills of lading; that   by way of amicable settlement, the owner of the  vessels     paid to  the consignees the sum of $60,733.53, U.S. currency; that subsequently the owner of the vessels demanded from the plaintiff reimbursement of the sum it had  paid to the  consignees and the plaintiff paid to the owner of the  vessels   the sum demanded, thereby subrogating itself to  all the  rights of the  owner of the vessels; that the  plaintiff in turn demanded from  the  defendant in  Manila reimbursement of the sum it had paid to the owner of the vessels for  his (the defendant's) failure to load the exact weight of copra represented by him  to  have  been loaded on  the"   vessels; and that the defendant refused to pay the plaintiff's  claim.   The plaintiff prays for judgment in its favor and  against  the defendant for  $60,733.53,  U.S.  currency,  or  its equivalent  in  Philippine currency; 17% exchange tax,  interest per annum on both the principal and exchange  tax from the date of the filing of the complaint; P10,000 for attorney's fees; costs of the suit;  and for such other and further relief as  the Court may deem just and equitable.

On 30 August 1954 the defendant moved for the dismissal of the complaint on the ground that it states no cause of action, he  (the defendant)  not being the shipper  of the copra but the buyer,  Louis Dreyfus & Company,  Ltd. of New York; and  that  if he  is being sued for tortious misrepresentation, the plaintiff's cause of  action is barred by the statute of limitation,  for  the  right of action  on a quasi-delict prescribes in four years.  The plaintiff objected to this motion.  On 2 October  1954 the Court denied the motion.

On 9 October 1954 the defendant answered the complaint setting up  the following defenses: that the loading of the copra on board  the  SS "Nagara"  was made for and in behalf of Louis Dreyfus &  Co.  (Overseas)  Ltd., and, consequently, the right of action is against it; that it was the agent of the  shipper, the  General Superintendence  Co. Ltd.,  Geneva, Switzerland,  which  was  commissioned by the shipper to  weigh the  copra,  who represented  that 2,000 long  tons or 2,032,000 gross kilos of copra had been loaded on  the ship;  that  the  loading  of  the  copra on board the  SS "Ceylon" was made for and in  behalf of Karlshams  Cliefabriker of Norryoeping, Sweden, the Shipper,  and, consequently, the  right of action is against it; that it was  the agent of the shipper, the General Superintendence Co.,  Ltd.,  Geneva, Switzerland, which was commissioned by the shipper to weigh  the copra, who represented that 2,032 tons or 2,064,512 gross kilos of copra had been loaded on board  the vessel.;  and that the defendant loaded the exact weight of copra in both instances in accordance with the instructions of the shippers  and as certified to by the General Superintendence Co., Ltd.  As affirmative defenses, the defendant  alleges that he was not  notified of the weighing of the copra at  the ports of destination nor was he represented by his agents thereat; that the alleged payment made by the owner of the vessels to the consignees by way of compromise  was  without  the authority  and consent of the defendant, hence, he could not be held liable therefor; and that the shortage in weight was not due to short delivery by the defendant but to the negligence of the carrier in the care of the cargo.  The defendant sets up a counterclaim of P15,000  for attorney's fees.   On 25 October 1954  the plaintiff controverted  the  defendant's counterclaim.   On 31 March 1955 the defendant amended its answer to rely on  an additional ground that as the consignees  did not  bring their action within one year from the  time the goods had been delivered  pursuant to the provisions of section 3, paragraph  5 and 6, title I, of the Carriage of Goods by Sea Act, Commonwealth Act No. 65, the plaintiff's action was already barred by statute.

On 11 July 1955 the  defendant filed  a motion praying for preliminary hearing on the  question  of prescription. The plaintiff  objected to this  motion.

On 16 July  1955 the Court ordered the defendant to file a  motion to dismiss.  On 1 August 1955, in compliance with the order of the Court, the defendant filed a motion to dismiss, on the ground that the right of action,  if any, is  barred by the statute of limitations, and that the complaint states no  cause of action, and in support thereof the defendant argues that the waiver by the carrier of the defense of prescription does not bind the defendant, and that the plaintiff, as subrogee of the carrier's right,  can have no greater or better right than its predecessor.

On 4 August 1955 the plaintiff filed "a motion to strike out defendant's motion  to dismiss  and to quash  service thereof on plaintiff"  on the ground that  it contained no proof of service and no notice of the date of hearing thereof. On the same day (4 August) the defendant filed an objection to the motion just referred to and a "notice of hearing" of the motion  to  dismiss setting it for 13 August 1955, at 8:30 o'clock a.m., or as soon as counsel  could be heard.

On 6 August 1955 the Court denied the plaintiff's motion to strike out the defendant's motion to dismiss and to quash service thereof on the plaintiff, and finding the defendant's motion to dismiss well  taken dismissed the  case  without costs.

On 22 August 1955 the plaintiff moved to  set aside the order of dismissal and prayed for new trial, both petitions objected to by the defendant.   On  31 August 1955, in an order dated 27 August,  the  Court denied the  plaintiff's motion.   The  plaintiff  has appealed.

The dismissal of the plaintiff's complaint on the ground of prescription and lack of cause  of action is  erroneous. Section 3, paragraph 6, title I, of  the Carriage of Goods by Sea Act, Commonwealth Act No. 65, relied upon by the defendant and  sustained by the Court, which partly provides

In any event the carrier and the ship  shall  be discharged from all liability in respect of loss or damage unless  suit is brought within one year after delivery of the goods or the  date when the goods should have been delivered:  Provided, That  if  a notice of loss or damage, either apparent or concealed, is not given as provided for in this section, that fact shall not affect or prejudice the  right of the shipper to bring suit  within  one  year after the delivery of the goods or the date when the goods should have been  delivered.

refers to  the  action that the shipper must  commence against the carrier or ship within one year from delivery of the goods  or the date when  the goods should  have  been delivered to recover loss  or damage to the goods shipped. In the case at bar, the plaintiff seeks to recover from the defendant the  sum it claims it  had indemnified  the owner of the vessels  (the carrier)  for the value of  the copra which, it is claimed, the defendant failed to load for  shipment to the consignees and "the  value  of which the carrier had  paid to the consignees.  Paragraph IX  of the  complaint states

That the difference in the weight of  the copra unloaded at the said ports of discharge as compared to what defendant had declared in the bills of lading is due to the fact that the shortage had never been loaded by the defendant on board the said vessels at the ports of loading, contrary  to the representation made by him to the vessels'  agent  in Manila;

and its prayer entreats the

* * *  Court to render judgment ordering defendant to pay plaintiff the sum of $60,733.53, U.S. currency, or its equivalent in Philippine currency, plus 17% exchange  tax,  with  interest thereon at the rate  of 6% per annum from the filing of this complaint until the date of full payment, and to pay  plaintiff  the further sum  of P10,000 as attorney's  fees..

Plaintiff also prays for the  costs of suit  and such  other and further relief as this Honorable Court may deem just and equitable in the premises.

As alleged in the complaint, the transactions took place in August  and November 1947, as  evidenced by bills of lading; whereas  the complaint was filed  on 16 August 1954.  If the averments of  the complaint on this point be proved,  then the plaintiffs cause of action is not yet barred  by the statute of limitations.

All the other defenses set up  by the defendant must be established  by competent and admissible evidence.

The order  appealed from  is set aside, and the case remanded to the court of origin for further  proceedings in accordance with law, which costs against  the  appellee.

Paras,  C. J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador,  Concepcion, Reyes, J. B.  L.,  and  Endencia,  JJ., concur.