HOWIE SEE IT: No force majeure when floods could have been foreseen and preventable

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By Atty. Howie Calleja

As typhoon Ulysses ravaged the Philippines with winds of up to150 km/h, the damage left behind was, for some families, seemingly insurmountable. It is the country’s 21st and deadliest tropical cyclone for 2020, destroying everything in its path and placing the majority of Cagayan underwater. Rivers overflowed, hundreds of homes submerged in water, and farms, plants, and other properties left in utter ruin. The water came in without warning, and a number of people were only able to stay alive by climbing onto rooftops or trees – praying to be rescued.

We can no longer rely on Filipino resiliency to fix destroyed properties and it certainly will not bring back the lives that were lost. Considering all that we have lost this year, we must now refuse to continue glorifying resiliency and, instead, begin demanding accountability. The question is, who should be held accountable for the current state of Cagayan? Was it brought about entirely by an ‘act of God’ (or “force majeure”), or was there human error involved?

Looking at similar decisions made by the Court in the past, there is certainly room to determine that this was an issue of mismanagement instead of a “natural” disaster. In the case of National Power Corporation vs. CA, the defendants (Operator and Supervisor of Angat Dam) were proven to have known of the impending and imminent danger posed by the typhoon Kading. Despite their knowledge, the water level in the dam was kept at its maximum level and, upon landfall of typhoon Kading, defendants initially opened 3 floodgates until all floodgates were opened only in a span of 5 hours. The Supreme Court ruled that the flash flood which led to the loss of lives and destruction of properties was not caused by the rain, but by the sudden and simultaneous release of the waters from the dam.

In the same case, the Court stressed that “where damage, injury or loss is caused by excessive rainfall, storms and weather conditions which are not unusual in character and those which could have been reasonably anticipated, or where the injury complained of is due to the negligence or mismanagement of man, or where such damage, injury or loss might have been mitigated or prevented by diligence exercised after the occurrence,” — it cannot be said that the damage, injury or loss is caused by an act of God or force majeure which exempts a person from liability but rather this is a clear example of an act of mismanagement and failure of governance.

In other words, while no one could have prevented the typhoon, if it can be foreseen and the damages were a result of negligence or mismanagement, there can be liability. For Typhoon Ulysses, it was clear that the openings of the floodgates allowed the typhoon to evolve into a disaster. Though Ulysses’ winds were not preventable, her impact was; it is the lack of communication, coordination, and risk reduction management that turned this storm into a crisis.

Data made available by PAGASA show that as early as November 8, three full days before the storm, it announced that the low-pressure area East of Mindanao had developed into a Tropical Depression Ulysses. This was followed by several announcements and warnings given prior to the landfall. However, despite these announcements, the water level in the Magat Dam was kept at approximately 191 meters or just 2 meters below its maximum of 193 meters, with the very little opening of the spillways of 1 to 2 meters from November 8 to 11. A few hours after the typhoon Ulysses made its first landfall on November 12, 3 floodgates were opened. This was followed by the opening of 5 more floodgates or a total of 7 floodgates on November 13. It is clear that the flooding that destroyed the homes of many of our countrymen was caused by the negligent release of the waters through the spillways of Magat Dam. Had the dam operator and supervisor prepared the dam by maintaining it at a level that would permit room for the expected rains from typhoon Ulysses, by slowly releasing the dams before the landfall, the sheer magnitude of the flooding would have been avoided.

The National Irrigation Administration is likewise accountable for the mismanagement of the Magat Dam which caused the massive flooding in Cagayan. The flooding could’ve been prevented had the NIA exercised due diligence with its duty to operate, maintain, and administer the Dam. However, it’s poor management coupled with inadequate communication and coordination with the operator and supervisor of the Dam and the LGUs of the affected areas eventually led to the current submerged state of Cagayan and Isabela

A careful analysis reveals that this is not an instance of force majeure that would allow the NIA, the operator, and the supervisor of Magat Dam to escape liability. Their negligent acts ‘humanized’ the whole occurrence, and should therefore be held accountable for the mismanagement of the dam leading to the loss of lives and destruction of properties. Without their careless and negligent actions, the victims would be merely cleaning up the roads, not looking for their family members in the aftermath.