24.

Lufthansa vs ca 238 scra 290

LUFTHANSA GERMAN AIRLINES, vs. COURT OF APPEALS and TIRSO V. ANTIPORDA, SR
In this petition for review on certiorari, the Court is confronted with the issue of whether or not petitioner
Lufthansa German Airlines which issued a confirmed Lufthansa ticket to private respondent Antiporda
covering a five-leg trip abroad different airlines should be held liable for damages occasioned by the
"bumping-off" of said private respondent Antiporda by Air Kenya, one of the airlines contracted to carry
him to a particular destination of the five-leg trip.
Tirso V. Antiporda, Sr. was contracted by Sycip, Gorres, Velayo & Co. (SGV) to be the institutional financial
specialist for the agricultural credit institution project of the Investment and Development Bank of Malawi
in Africa. On September 17, 1984, Lufthansa, through SGV, issued ticket for Antiporda's confirmed flights to
Malawi, Africa.
Thus, on September 25, 1984, Antiporda took the Lufthansa flight to Singapore from where he proceeded
to Bombay on board the same airline. He arrived in Bombay as scheduled and waited at the transit area of
the airport for his connecting flight to Nairobi which was, per schedule given him by Lufthansa, to leave
Bombay in the morning of September 26, 1984. Finding no representative of Lufthansa waiting for him at
the gate, Antiporda asked the duty officer of Air India how he could get in touch with Lufthansa. He was
told to call up Lufthansa which informed him that somebody would attend to him shortly. Ten minutes later,
Gerard Matias, Lufthansa's traffic officer, arrived, asked for Antiporda's ticket and told him to just sit down
and wait. Matias returned with one Leslie Benent, duty officer of Lufthansa, who informed Antiporda that
his seat in Air Kenya Flight 203 to Nairobi had been given to a very important person of Bombay who was
attending a religious function in Nairobi. Antiporda protested, stressing that he had an important
professional engagement in Blantyre, Malawi in the afternoon of September 26, 1984. He requested that
the situation be remedied but Air Kenya Flight 203 left for Nairobi without him on board. Stranded in
Bombay, Antiporda was booked for Nairobi via Addis Ababa only on September 27, 1984. He finally arrived
in Blantyre at 9:00 o'clock in the evening of September 28, 1984, more than a couple of days late for his
appointment with people from the institution he was to work with in Malawi.
Consequently, on January 8, 1985, Antiporda's counsel wrote the general manager of Lufthansa in Manila
demanding P1,000,000 in damages for the airline's "malicious, wanton, disregard of the contract of
carriage." 2 In reply, Lufthansa general manager Hagen Keilich assured Antiporda that the matter would be
investigated.
Apparently getting no positive action from Lufthansa, on January 21, 1985, Antiporda filed with the
Regional Trial Court of Quezon City a complaint against Lufthansa which was docketed as Civil Case No. Q43810.
The lower court and the Court of Appeals held that Lufthansa cannot limit its liability as a mere ticket
issuing agent for other airlines and only to untoward occurrences on its own line since member airlines are
agents of each other in the issuance of tickets and, therefore an airline company is considered bound by
the mistakes committed by another in behalf of the former, had confirmed a passenger's reservation for
accommodation. The same is to be treated as a single operation conducted by Lufthansa because
Antiporda dealt exclusively with it which issued him a Lufthansa ticket for the entire trip. By issuing a
confirmed ticket, Lufthansa in effect guaranteed Antiporda a sure seat with Air Kenya.
Lufthansa maintains that its liability to any passenger is limited to occurrences in its own line, and, thus, in
the case at bench, its liability to Antiporda is limited to the extent that it had transported him from Manila
to Singapore and from Singapore to Bombay; that therefrom, responsibility for the performance of the
contract of carriage is assumed by the succeeding carriers tasked to transport him for the remaining leg of
his trip because at that stage, its contract of carriage with Antiporda ceases, with Lufthansa acting, no
longer as the principal in the contract of carriage, but merely as a ticket-issuing agent for the other
carriers.
In further advancing this line of defense, Lufthansa invoked Section 2, Article 30 of the Warsaw
Convention 9which expressly stipulates that in cases where the transportation of passengers or goods is
performed by various successive carriers, the passenger can take action only against the carrier which
performed the transportation, during which the accident or delay occurred. Lufthansa further advanced the
theory that this provision of the Warsaw Convention is applicable to the present case, contrary to the
decision of the Court of Appeals which relied on the Supreme Court ruling in KLM Royal Dutch Lines. 10 For
Lufthansa, "bumping-off" is considered delay since delay would inevitably result therefrom. It implored this
Court to re-examine our ruling in KLM and take heed of jurisprudence 11 in the U.S. where "delay," unlike in
our ruling in KLM, contemplates the instance of "bumping-off." In KLM, we held that the term "delay" does
not encompass the instance of "bumping-off," the latter having been defined as refusal to carry or
transport a passenger.
On his part, private respondent Antiporda insists that he entered with Lufthansa an exclusive contract of
carriage, the nature of which is a continuous carriage by air from Manila to Blantyre Malawi; that it did not

enter into a series of independent contracts with the carriers that transported him for the remaining leg of
his trip.
Held: The basis for such claim is well-founded. As ruled by the trial court, with the Court of Appeals
concurring favorably, Antiporda was issued a confirmed Lufthansa ticket all throughout the five-leg trip.
The fourth paragraph of the "Conditions of Contract" stipulated in the ticket indubitably showed that the
contract of carriage was considered as one of continuous air transportation from Manila to Blantyre,
Malawi, thus:
4. . . . carriage to be performed hereunder by several successive carriers is regarded as a single operation.
In light of the stipulations expressly specified in the ticket defining the true nature of its contract of
carriage with Antiporda, Lufthansa cannot claim that its liability thereon ceased at Bombay Airport and
thence, shifted to the various carriers that assumed the actual task of transporting said private
respondent.
In the very nature of their contract, Lufthansa is clearly the principal in the contract of carriage with
Antiporda and remains to be so, regardless of those instances when actual carriage was to be performed
by various carriers. The issuance of a confirmed Lufthansa ticket in favor of Antiporda covering his entire
five-leg trip abroad successive carriers concretely attests to this. This also serves as proof that Lufthansa,
in effect guaranteed that the successive carriers, such as Air Kenya would honor his ticket; assure him of a
space therein and transport him on a particular segment of his trip.
The passage tickets of the respondents provide that the carriage to be performed thereunder by several
successive carriers "is to be regarded as a single operation," Antiporda dealt exclusively with the Lufthansa
which issued a ticket for the entire trip and which in effect guaranteed that there is sure space in the
flights. The respondents, under that assurance of the internationally prestigious KLM, naturally had the
right to expect that their tickets would be honored by Aer Lingus to which, in the legal sense, the KLM had
indorsed and in effect guaranteed the performance of its principal engagement to carry out the
respondents' scheduled itinerary previously and mutually agreed upon between the parties.
RUFINO Y. LUNA, RODOLFO J. ALONSO and PORFIRIO RODRIGUEZ, vs. HON. COURT OF APPEALS,
HON. CRISTINA M. ESTRADA in her capacity as Presiding Judge, RTC-Pasig, , HON. TERESITA D.
CAPULONG in her capacity as Presiding Judge, RTC-Valenzuela, and NORTHWEST AIRLINES,
INC.,
This joint petition for review on certiorari originated from two (2) separate complaints arising from an
airline's delay in the delivery of the luggage of its passengers at their destination which respondent courts
dismissed for lack of cause of action. The resulting issue is whether the application of the Warsaw
Convention operates to exclude the application of the provisions of the New Civil Code and the other
statutes.
Facts: On 19 May 1989, at around 8:00 a.m., Rufino Luna, Rodolfo Alonso and Porfirio Rodriguez boarded
Flight 020 of Northwest Airlines bound for Seoul, South Korea, to attend the 4-day Rotary International
Convention from the 21st to the 24th of May 1992. They checked in 1 piece of luggage each. After
boarding, however, due to engine trouble, they were asked to disembark and transfer to a Korean Airlines
plane scheduled to depart 4 hours later. They were assured that their baggage would be with them in the
same flight.
When they arrived in Seoul, they discovered that their personal belongings were nowhere to be found;
instead, they were allegedly flown to Seattle, USA. It was not until 4 days later, and only after repeated
representations with Northwest Airlines personnel at the airport in Korea were they able to retrieve their
luggage. By then the Convention, which they were hardly able to attend, was almost over. Rufino Y. Luna
andRodolfo J. Alonso assert that on 6 June 1989, or 13 days after they recovered their luggage, they sent a
written claim to the carriers office along Roxas Blvd., Ermita, Manila. Porfirio Rodriguez, on his part,
asseverates that he filed his claim on 13 June 1989. However, the carrier, in a letter of 21 June 1989,
disowned any liability for the delay and averred that it exerted its best efforts to carry the passenger and
baggage with reasonable dispatch.
On 14 July 1989, Luna and Alonso jointly filed a complaint for breach of contract with damages before the
RTC of Pasig, Metro Manila (Civil Case 58390, Branch 69), while Rodriguez filed his own complaint with the
RTC of Valenzuela, Metro Manila (Civil Case 3194-V-89, Branch 172). However, upon motion of the
carrier, both complaints were dismissed for lack of cause of action due to Luna, et.al.s failure to state in
their respective complaints that they filed a prior claim with the carrier within the prescribed period. Luna
and Alonso then filed a petition for certiorari before the Court of Appeals to set aside the order of Judge
Cristina M. Estrada granting the carriers motion to dismiss, while Rodriguez proceeded directly to the
Supreme Court on Certiorari for the same purpose. However, in the Courts resolution of 26 February 1990,
the Supreme Court referred Rodriguez petition to the Court of Appeals. On 26 March 1991, the Third
Division of the Court of Appeals, applying the provisions of the Warsaw Convention and ruling that

certiorari was not a substitute for a lost appeal, dismissed the petition of Luna and Alonso, and on 7 June
1991 denied their motion for reconsideration. Meanwhile, on 28 February 1991 the Seventh Division of the
Court of Appeals, ruling that the questioned order of the trial court had already become final, similarly
rejected the petition of Rodriguez, and on 6 June 1991 denied his motion for reconsideration. Hence, the
joint petition for review on certiorari.
The Supreme Court reversed and set aside the assailed decisions and resolutions of the Court of Appeals;
and reinstated given due course until terminated the complaints for breach of contract of carriage with
damages in Civil Case 3194-V-89 and Civil Case 58390 dismissed by Judges Teresita D. Capulong and
Cristina M. Estrada, respectively; without costs.
Held: Warsaw Convention has force and effect in the Philippines; Convention does not operate
as an exclusive enumeration of carriers liability and the extent thereof; Convention does not
preclude Civil
Code and other laws
The Warsaw Convention was a treaty commitment voluntarily assumed by the Philippine
government; consequently, it has the force and effect of law in this country. But, in the same token, the
Warsaw Convention does not operate as an exclusive enumeration of the instances for declaring an airline
liable for breach of contract of carriage or as an absolute limit of the extent of that liability. The Convention
merely declares the carrier liable for damages in the enumerated cases, if the conditions therein specified
are present. For sure, it does not regulate the liability, much less exempt, the carrier for violating the rights
of others which must simply be respected in accordance with their contracts of carriage. The application of
the Convention must not therefore be construed to preclude the operation of the Civil Code and other
pertinent laws. In fact, in Alitalia v. IAC, the Court awarded Dr. Felipa Pablo nominal damages, the
provisions of the Convention notwithstanding.
4. Carrier still liable for breach of other relative laws which provide a different period of filing
of claim
The alleged failure of Luna, Alonzo and Rodriguez to file a claim with the common carrier as
mandated by the provisions of the Warsaw Convention should not be a ground for the summary dismissal
of their complaints since the carrier may still be held liable for breach of other relevant laws which may
provide a different period or procedure for filing a claim. Considering that Luna, et. al. indeed filed a claim
which the carrier admitted having received on 21 June 1989, their demand may have very well been filed
within the period prescribed by those applicable laws.
PURITA S. MAPA, CARMINA S. MAPA and CORNELIO P. MAPA, vs. COURT OF APPEALS and
TRANS-WORLD AIRLINES INC.,
Mapa purchased from TWA Trans World Airlines 2 airline tickets in Bankok Thailand, for Los Angeles- New
York Boston St. Louis Chicago, all of the USA. The domicile of the carrier TWA was Kansas City, Missouri
USA, Where its principal place of business was likewise located. The place of business of TWA where the
contract was made was in Bangkok Thailand. The place of destination was Chicago-USA. The MAPAS left
Manila on board Pal for L-A, They left checked in 7 pieces of luggages at TWA counter at JFK airport but
failed to board the plane because they went to the wrong gate. Hey were however allowed to take a later
TWA plane to Boston which was delayed because of the thunder storm. Upon arrival at boston they were
only retrieved 3 out of 7 luggages which loss was immediately reported to TWA with a total value of S
2,560 as constituting full satisfaction of their claim which the MAPAS accepted as partial payment for the
actual loss of their baggages. Thereafter MAPA filed a case against TWA in the Philippines Similar to the
case of Santos III , TWA move to dismiss for lack of jurisdiction based on section 28(1) warsaw
contending that the complaint should have been brought either in Bankok where the contract was entered
into , or in boston which was the place of destination or in Kansas City which was the carriers domicile and
principla place of business. MAPAS claimed that the WARSAW convention was not applicable
because the contract was not an Internationl Transportation as contemplated under the provision of
the WARSAW convention the RTC as affirmed bythe C-A dismiss the case for lack of jurisdiction. ISSUE: Is
the Warsaw Convention applicable?
Held: Warsaw convention was not applicable because the contract does not involve an INTERANTIONAL
TRANPORTATION base on the two categories. (1) that where the place of departure and the place of
destination are situated within the territories of two High Contracting Parties regardless of whether or not
there be a break in the transportation or a transshipment; and (2) that where the place of departure and
the place of destination are within the territory of a single High Contracting Party if there is an agreed
stopping place within a territory subject to the sovereignty, mandate, or authority of anotherpower, even
though the power is not a party of the Convention.Whether the contracts were of international
transportation is to be solely determined from the TWA tickets issued to them in Bangkok, Thailand, which
showed that their itinerary was Los Angeles-NewYork-Boston-St. Louis-Chicago. Accordingly, since the place
of departure (Los Angeles) and the place of destination (Chicago) are both within the territory of one High

Contracting Party, with no agreed stopping place in a territory subject to the sovereignty, mandate,
suzerainty or authority of another Power, the contracts did not constitute 'international transportation' as
defined by the convention.
SABENA BELGIAN WORLD AIRLINES, petitioner, vs. HON. COURT OF APPEALS and MA. PAULA
SAN AGUSTIN, respondents.
The appeal before the Court involves the issue of an airlines liability for lost luggage. The petition for
review assails the decision of the Court Appeals,[1] dated 27 February 1992, affirming an award of damages
made by the trial court in a complaint filed by private respondent against petitioner.
The factual background of the case, narrated by the trial court and reproduced at length by the appellate
court, is hereunder quoted:
On August 21, 1987, plaintiff was a passenger on board Flight SN 284 of defendant airline originating from
Casablanca to Brussels, Belgium on her way back to Manila. Plaintiff checked in her luggage which
contained her valuables, namely: jewelries valued at $2,350.00; clothes $1,500.00; shoes/bag $150;
accessories $75; luggage itself $10.00; or a total of $4,265.00, for which she was issued Tag No. 71423.
She stayed overnight in Brussels and her luggage was left on board Flight SN 284.
Plaintiff arrived at Manila International Airport on September 2, 1987 and immediately submitted her Tag
No. 71423 to facilitate the release of her luggage hut the luggage was missing. She was advised to
accomplish and submit a property Irregularity Report which she submitted and filed on the same day.
She followed up her claim on September 14, 1987 but the luggage remained to be missing.
On September 15, 1987, she filed her formal complaint with the office of Ferge Massed, defendants Local
Manager, demanding immediate attention (Exh. A).
On September 30, 1987, on the occasion of plaintiffs following up of her luggage claim, she was furnished
copies of defendants telexes with an information that the Brussels Office of defendant found the luggage
and that they have broken the locks for identification (Exhibit B). Plaintiff was assured by the defendant
that it has notified its Manila Office that the luggage will be shipped to Manila on October 27, 1987. But
unfortunately plaintiff was informed that the luggage was lost for the second time (Exhibits C and C-1).
At the time of the filling of the complaint, the luggage with its content has not been found.
Plaintiff demanded from the defendant the money value of the luggage and its contents amounting to
$4,265.00 or its exchange value, but defendant refused to settle the claim.
Defendant asserts in its Answer and its evidence tend to show that while it admits that the plaintiff was a
passenger on board Flight No. SN 284 with a piece of checked in luggage bearing Tag No. 71423, the loss
of the luggage was due to plaintiffs sole if not contributory negligence; that she did not declare the
valuable items in her checked-in luggage at the flight counter when she checked in for her flight from
Casablanca to Brussels so that either the representative of the defendant at the counter would have
advised her to secure an insurance on the alleged valuable items and required her to pay additional
charges, or would have refused acceptance of her baggage as required by the generally accepted
practices of international carriers; that Section 9(a), Article IX of General Conditions of carriage requiring
passengers to collect their checked baggage at the place of stopover, plaintiff neglected to claim her
baggage at the Brussels Airport; that plaintiff should have retrieved her undeclared valuables from her
baggage at the Brussels Airport since her flight from Brussels to Manila will still have to visit for
confirmation inasmuch as only her flight from Casablanca to Brussels was confirmed; that defendant
incorporated in all Sabena Plane Tickets, including Sabena Ticket No. 082422-72502241 issued to plaintiff
in Manila on August 21, 1987, a warning that Items of value should be carried on your person and that
some carriers assume no liability for fragile, valuable or perishable articles and that further information
may he obtained from the carrier for guidance; that granting without conceding that defendant is liable, its
liability is limited only to US $20.00 per kilo due to plaintiffs failure to declare a higher value on the
contents of her checked in luggage and pay additional charges thereon. [2]
The trial court rendered judgment ordering petitioner Sabena Belgian World Airlines to pay private
respondent Ma. Paula San Agustin
(a) x x x US$4,265.00 or its legal exchange in Philippine pesos;
(b) x x x P30,000.00 as moral damages;
(c) x x x P10,000.00 as exemplary damages;
(d) x x x P10,000.00 attorneys fees; and
(e) (t)he costs of the suit.[3]
Sabena appealed the decision of the Regional Trial Court to the Court of Appeals. The appellate court, in its
decision of 27 February 1992, affirmed in toto the trial courts judgment.
Petitioner airline company, in contending that the alleged negligence of private respondent should be
considered the primary cause for the loss of her luggage, avers that, despite her awareness that the flight
ticket had been confirmed only for Casablanca and Brussels, and that her flight from Brussels to Manila
had yet to be confirmed, she did not retrieve the luggage upon arrival in Brussels. Petitioner insists that

private respondent, being a seasoned international traveler, must have likewise been familiar with the
standard provisions contained in her flight ticket that items of value are required to be hand-carried by the
passenger and that the liability of the airline or loss, delay or damage to baggage would be limited, in any
event, to only US$20.00 per kilo unless a higher value is declared in advance and corresponding additional
charges are paid thereon. At the Casablanca International Airport, private respondent, in checking in her
luggage, evidently did not declare its contents or value. Petitioner cites Section 5(c), Article IX, of the
General Conditions of Carriage, signed at Warsaw, Poland, on 02 October 1929, as amended by the Hague
Protocol of 1955, generally observed by International carriers, stating, among other things, that:
Passengers shall not include in his checked baggage, and the carrier may refuse to carry as checked
baggage, fragile or perishable articles, money, jewelry, precious metals, negotiable papers, securities or
other valuables.[4]
Fault or negligence consists in the omission of that diligence which is demanded by the nature of an
obligation and corresponds with the circumstances of the person, of the time, and of the place. When the
source of an obligation is derived from a contract, the mere breach or non-fulfillment of the prestation
gives rise to the presumption of fault on the part of the obligor.This rule is not different in the case of
common carriers in the carriage of goods which, indeed, are bound to observe not just the due diligence of
a good father of a family but that of extraordinary care in the vigilance over the goods. The appellate court
has aptly observed:
x x x Art. 1733 of the [Civil] Code provides that from the very nature of their business and by reasons of
public policy, common carriers are bound to observe extraordinary diligence in the vigilance over the
goods transported by them. This extraordinary responsibility, according to Art. 1736, lasts from the time
the goods are unconditionally placed in the possession of and received by the carrier until they are
delivered actually or constructively to the consignee or person who has the right to receive them. Art.
1737 states that the common carriers duty to observe extraordinary diligence in the vigilance over the
goods transported by them remains in full force and effect even when they are temporarily unloaded or
stored in transit. And Art. 1735 establishes the presumption that if the goods are lost, destroyed or
deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless
they prove that they had observed extraordinary diligence as required in Article 1733.
The only exceptions to the foregoing extraordinary responsibility of the common carrier is when the loss,
destruction, or deterioration of the goods is due to any of the following causes:
(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;
(2) Act of the public enemy in war, whether international or civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or in the containers;
(5) Order or act of competent public authority.
Not one of the above excepted causes obtains in this case.[5]
The above rules remain basically unchanged even when the contract is breached by tort [6] although
noncontradictory principles on quasi-delict may then be assimilated as also forming part of the governing
law. Petitioner is not thus entirely off track when it has likewise raised in its defense the tort doctrine of
proximate cause. Unfortunately for petitioner, however, the doctrine cannot, in this particular instance,
support its case. Proximate cause is that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury and without which the result would not have occurred. The
exemplification by the Court in one case[7] is simple and explicit; viz:
(T)he proximate legal cause is that acting first and producing the injury, either immediately or by setting
other events in motion, all constituting a natural and Continuous chain of events, each having a close
causal Connection with its immediate predecessor, the final event in the chain immediately affecting the
injury as a natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinarily prudent, and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person might
probably result therefrom.
It remained undisputed that private respondents luggage was lost while it was in the custody of
petitioner. It was supposed to arrive on the same flight that private respondent took in returning to Manila
on 02 September 1987. When she discovered that the luggage was missing, she promptly accomplished
and filed a Property Irregularity Report. She followed up her claim on 14 September 1987, and filed, on the
following day, a formal letter-complaint with petitioner. She felt relieved when, on 23 October 1987, she
was advised that her luggage had finally been found, with its contents intact when examined, and that she
could expect it to arrive on 27 October 1987. She then waited anxiously only to be told later that her
luggage had been lost for the second time. Thus, the appellate court, given all the facts before it,
sustained the trial court in finding petitioner ultimately guilty of gross negligence in the handling of private
respondents luggage. The loss of said baggage not only once by twice, said the appellate court,
underscores the wanton negligence and lack of care on the part of the carrier.

The above findings, which certainly cannot be said to be without basis, foreclose whatever rights petitioner
might have had to the possible limitation of liabilities enjoyed by international air carriers under the
Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Carriage by
Air, as amended by the Hague Protocol of 1955, the Montreal Agreement of 1966, the Guatemala Protocol
of 1971 and the Montreal Protocols of 1975). In Alitalia vs. Intermediate Appellate Court,[8] now Chief
Justice Andres R. Narvasa, speaking for the Court, has explained it well; he said:
The Warsaw Convention however denies to the carrier availment of the provisions which exclude or limit
his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in
accordance with the law of the court seized of the case, is considered to be equivalent to wilful
misconduct, or if the damage is (similarly) caused x x x by any agent of the carrier acting within the scope
of his employment. The Hague Protocol amended the Warsaw Convention by removing the provision that if
the airline took all necessary steps to avoid the damage, it could exculpate itself completely, and declaring
the stated limits of liability not applicable if it is proved that the damage resulted from an act or omission
of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge
that damage would probably result. The same deletion was effected by the Montreal Agreement of 1966,
with the result that a passenger could recover unlimited damages upon proof of wilful misconduct.
The Convention does not thus operate as an exclusive enumeration of the instances of an airlines liability,
or as an absolute limit of the extent of that liability. Such a proposition is not borne out by the language of
the Convention, as this Court has now, and at an earlier time, pointed out. Moreover, slight reflection
readily leads to the conclusion that it should be deemed a limit of liability only in those cases where the
cause of the death or injury to person, or destruction, loss or damage to property or delay in its transport is
not attributable to or attended by any wilful misconduct, bad faith, recklessness or otherwise improper
conduct on the part of any official or employee for which the carrier is responsible, and there is otherwise
no special or extraordinary form of resulting injury. The Contentions provisions, in short, do not regulate or
exclude liability for other breaches of contract by the carrier or misconduct of its officers and employees,
or for some particular or exceptional type of damage.Otherwise, an air carrier would be exempt from any
liability for damages in the event of its absolute refusal, in bad faith, to comply with a contract of carriage,
which is absurd. Nor may it for a moment be supposed that if a member of the aircraft complement should
inflict some physical injury on a passenger, or maliciously destroy or damage the latters property, the
Convention might successfully be pleaded as the sole gauge to determine the carriers liability to the
passenger. Neither may the Convention be invoked to justify the disregard of some extraordinary sort of
damage resulting to a passenger and preclude recovery therefor beyond the limits set by said
Convention. It is in this sense that the Convention has been applied, or ignored, depending on the peculiar
facts presented by each case.
The Court thus sees no error in the preponderant application to the instant case by the appellate court, as
well as by the trial court, of the usual rules on the extent of recoverable damages beyond the Warsaw
limitations. Under domestic law and jurisprudence (the Philippines being the country of destination), the
attendance of gross negligence (given the equivalent of fraud or bad faith) holds the common carrier liable
for all damages which can be reasonably attributed, although unforeseen, to the non-performance of the
obligation,[9] including moral and exemplary damages.[10]

Augusto Santos III vs Northwest Orient

Airlines
Augusto Benedicto Santos III is a minor represented by his dad. In October 1986, he bought a round trip
ticket from Northwest Orient Airlines (NOA) in San Francisco. His flight would be from San Francisco to
Manila via Tokyo and back to San Francisco. His scheduled flight was in December. A day before his
departure he checked with NOA and NOA said he made no reservation and that he bought no ticket. The
next year, due to the incident, he sued NOA for damages. He sued NOA in Manila. NOA argued that
Philippine courts have no jurisdiction over the matter pursuant to Article 28(1) of the Warsaw Convention,
which provides that complaints against international carriers can only be instituted in:
1. the court of the domicile of the carrier (NOAs domicile is in the USA);

2. the court of its principal place of business (which is San Francisco, USA);
3. the court where it has a place of business through which the contract had been made (ticket was
purchased in San Francisco so thats where the contract was made);
4. the court of the place of destination (Santos bought a round trip ticket which final destination is San
Francisco).
The lower court ruled in favor of NOA. Santos III averred that Philippine courts have jurisdiction over the
case and he questioned the constitutionality of Article 28 (1) of the Warsaw Convention.
ISSUE: Whether or not Philippine courts have jurisdiction over the matter to conduct judicial review.
HELD: No. The Supreme Court ruled that they cannot rule over the matter for the SC is bound by the
provisions of the Warsaw Convention which was ratified by the Senate. Until & unless there would be
amendment to the Warsaw Convention, the only remedy for Santos III is to sue in any of the place
indicated in the Convention such as in San Francisco, USA.
The SC cannot rule upon the constitutionality of Article 28(1) of the Warsaw Convention. In the first place,
it is a treaty which was a joint act by the legislative and the executive. The presumption is that it was first
carefully studied and determined to be constitutional before it was adopted and given the force of law in
this country. In this case, Santos was not able to offer any compelling argument to overcome the
presumption.
AUGUSTO BENEDICTO SANTOS III, represented by his father and legal guardian, Augusto Benedicto Santos, petitioner,
vs.
NORTHWEST ORIENT AIRLINES and COURT OF APPEALS, respondents.

CRUZ, J.:
This case involves the Proper interpretation of Article 28(1) of the Warsaw Convention, reading as follows:
Art. 28. (1) An action for damage must be brought at the option of the plaintiff, in the territory of one of the High
Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where
he has a place of business through which the contract has been made, or before the court at the place of destination.
The petitioner is a minor and a resident of the Philippines. Private respondent Northwest Orient Airlines (NOA) is a foreign corporation
with principal office in Minnesota, U.S.A. and licensed to do business and maintain a branch office in the Philippines.
On October 21, 1986, the petitioner purchased from NOA a round-trip ticket in San Francisco. U.S.A., for his flight from San Francisco
to Manila via Tokyo and back. The scheduled departure date from Tokyo was December 20, 1986. No date was specified for his return
to San Francisco. 1
On December 19, 1986, the petitioner checked in at the NOA counter in the San Francisco airport for his scheduled departure to
Manila. Despite a previous confirmation and re-confirmation, he was informed that he had no reservation for his flight from Tokyo to
Manila. He therefore had to be wait-listed.
On March 12, 1987, the petitioner sued NOA for damages in the Regional Trial Court of Makati. On April 13, 1987, NOA moved to
dismiss the complaint on the ground of lack of jurisdiction. Citing the above-quoted article, it contended that the complaint could be
instituted only in the territory of one of the High Contracting Parties, before:
1. the court of the domicile of the carrier;
2. the court of its principal place of business;

3. the court where it has a place of business through which the contract had been made;
4. the court of the place of destination.
The private respondent contended that the Philippines was not its domicile nor was this its principal place of business. Neither was the
petitioner's ticket issued in this country nor was his destination Manila but San Francisco in the United States.
On February 1, 1988, the lower court granted the motion and dismissed the case. 2 The petitioner appealed to the Court of

Appeals, which affirmed the decision of the lower court. 3 On June 26, 1991, the petitioner filed a motion for
reconsideration, but the same was denied. 4 The petitioner then came to this Court, raising substantially the same issues it
submitted in the Court of Appeals.
The assignment of errors may be grouped into two major issues, viz:
(1) the constitutionality of Article 28(1) of the Warsaw Convention; and
(2) the jurisdiction of Philippine courts over the case.
The petitioner also invokes Article 24 of the Civil Code on the protection of minors.
I
THE ISSUE OF CONSTITUTIONALITY
A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw Convention violates
the constitutional guarantees of due process and equal protection.
The Republic of the Philippines is a party to the Convention for the Unification of Certain Rules Relating to International Transportation
by Air, otherwise known as the Warsaw Convention. It took effect on February 13, 1933. The Convention was concurred in by the
Senate, through its Resolution No. 19, on May 16, 1950. The Philippine instrument of accession was signed by President Elpidio
Quirino on October 13, 1950, and was deposited with the Polish government on November 9, 1950. The Convention became applicable
to the Philippines on February 9, 1951. On September 23, 1955, President Ramon Magsaysay issued Proclamation No. 201, declaring
our formal adherence thereto. "to the end that the same and every article and clause thereof may be observed and fulfilled in good faith
by the Republic of the Philippines and the citizens thereof." 5
The Convention is thus a treaty commitment voluntarily assumed by the Philippine government and, as such, has the force and effect of
law in this country.
The petitioner contends that Article 28(1) cannot be applied in the present case because it is unconstitutional. He argues that there is
no substantial distinction between a person who purchases a ticket in Manila and a person who purchases his ticket in San Francisco.
The classification of the places in which actions for damages may be brought is arbitrary and irrational and thus violates the due
process and equal protection clauses.
It is well-settled that courts will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a
judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal
rights susceptible of judicial determination; the constitutional question must have been opportunely raised by the proper party; and the
resolution of the question is unavoidably necessary to the decision of the case itself. 6
Courts generally avoid having to decide a constitutional question. This attitude is based on the doctrine of separation of powers, which
enjoins upon the departments of the government a becoming respect for each other's acts.
The treaty which is the subject matter of this petition was a joint legislative-executive act. The presumption is that it was first carefully
studied and determined to be constitutional before it was adopted and given the force of law in this country.
The petitioner's allegations are not convincing enough to overcome this presumption. Apparently, the Convention considered the four
places designated in Article 28 the most convenient forums for the litigation of any claim that may arise between the airline and its
passenger, as distinguished from all other places. At any rate, we agree with the respondent court that this case can be decided on
other grounds without the necessity of resolving the constitutional issue.
B. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the Warsaw Convention is
inapplicable because of a fundamental change in the circumstances that served as its basis.

The petitioner goes at great lengths to show that the provisions in the Convention were intended to protect airline companies under "the
conditions prevailing then and which have long ceased to exist." He argues that in view of the significant developments in the airline
industry through the years, the treaty has become irrelevant. Hence, to the extent that it has lost its basis for approval, it has become
unconstitutional.
The petitioner is invoking the doctrine of rebus sic stantibus. According to Jessup, "this doctrine constitutes an attempt to formulate a
legal principle which would justify non-performance of a treaty obligation if the conditions with relation to which the parties contracted
have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be
unreasonable." 7 The key element of this doctrine is the vital change in the condition of the contracting parties that they

could not have foreseen at the time the treaty was concluded.
The Court notes in this connection the following observation made in Day v. Trans World Airlines, Inc.: 8
The Warsaw drafters wished to create a system of liability rules that would cover all the hazards of air travel . . . The
Warsaw delegates knew that, in the years to come, civil aviation would change in ways that they could not foresee.
They wished to design a system of air law that would be both durable and flexible enough to keep pace with these
changes . . . The ever-changing needs of the system of civil aviation can be served within the framework they
created.
It is true that at the time the Warsaw Convention was drafted, the airline industry was still in its infancy. However, that circumstance
alone is not sufficient justification for the rejection of the treaty at this time. The changes recited by the petitioner were, realistically, not
entirely unforeseen although they were expected in a general sense only. In fact, the Convention itself, anticipating such developments,
contains the following significant provision:
Article 41. Any High Contracting Party shall be entitled not earlier than two years after the coming into force of this
convention to call for the assembling of a new international conference in order to consider any improvements which
may be made in this convention. To this end, it will communicate with the Government of the French Republic which
will take the necessary measures to make preparations for such conference.
But the more important consideration is that the treaty has not been rejected by the Philippine government. The doctrine of rebus sic
stantibus does not operate automatically to render the treaty inoperative. There is a necessity for a formal act of rejection, usually made
by the head of State, with a statement of the reasons why compliance with the treaty is no longer required.
In lieu thereof, the treaty may be denounced even without an expressed justification for this action. Such denunciation is authorized
under its Article 39, viz:
Article 39. (1) Any one of the High Contracting Parties may denounce this convention by a notification addressed to
the Government of the Republic of Poland, which shall at once inform the Government of each of the High
Contracting Parties.
(2) Denunciation shall take effect six months after the notification of denunciation, and shall operate only as regards
the party which shall have proceeded to denunciation.
Obviously. rejection of the treaty, whether on the ground of rebus sic stantibus or pursuant to Article 39, is not a function of the courts
but of the other branches of government. This is a political act. The conclusion and renunciation of treaties is the prerogative of the
political departments and may not be usurped by the judiciary. The courts are concerned only with the interpretation and application of
laws and treaties in force and not with their wisdom or efficacy.
C. The petitioner claims that the lower court erred in ruling that the plaintiff must sue in the United States, because
this would deny him the right to access to our courts.
The petitioner alleges that the expenses and difficulties he will incur in filing a suit in the United States would constitute a constructive
denial of his right to access to our courts for the protection of his rights. He would consequently be deprived of this vital guaranty as
embodied in the Bill of Rights.
Obviously, the constitutional guaranty of access to courts refers only to courts with appropriate jurisdiction as defined by law. It does not
mean that a person can go to any court for redress of his grievances regardless of the nature or value of his claim. If the petitioner is
barred from filing his complaint before our courts, it is because they are not vested with the appropriate jurisdiction under the Warsaw
Convention, which is part of the law of our land.
II
THE ISSUE OF JURISDICTION.

A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw Convention is a rule
merely of venue and was waived by defendant when it did not move to dismiss on the ground of improper venue.
By its own terms, the Convention applies to all international transportation of persons performed by aircraft for hire.
International transportation is defined in paragraph (2) of Article 1 as follows:
(2) For the purposes of this convention, the expression "international transportation" shall mean any transportation in
which, according to the contract made by the parties, the place of departure and the place of destination, whether or
not there be a break in the transportation or a transshipment, are situated [either] within the territories of two High
Contracting Parties . . .
Whether the transportation is "international" is determined by the contract of the parties, which in the case of passengers is the ticket.
When the contract of carriage provides for the transportation of the passenger between certain designated terminals "within the
territories of two High Contracting Parties," the provisions of the Convention automatically apply and exclusively govern the rights and
liabilities of the airline and its passenger.
Since the flight involved in the case at bar is international, the same being from the United States to the Philippines and back to the
United States, it is subject to the provisions of the Warsaw Convention, including Article 28(1), which enumerates the four places where
an action for damages may be brought.
Whether Article 28(1) refers to jurisdiction or only to venue is a question over which authorities are sharply divided. While the petitioner
cites several cases holding that Article 28(1) refers to venue rather than jurisdiction, 9 there are later cases cited by the private

respondent supporting the conclusion that the provision is jurisdictional.

10

Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by consent or waiver upon d court which otherwise
would have no jurisdiction over the subject-matter of an action; but the venue of an action as fixed by statute may be changed by the
consent of the parties and an objection that the plaintiff brought his suit in the wrong county may be waived by the failure of the
defendant to make a timely objection. In either case, the court may render a valid judgment. Rules as to jurisdiction can never be left to
the consent or agreement of the parties, whether or not a prohibition exists against their alteration. 11
A number of reasons tends to support the characterization of Article 28(1) as a jurisdiction and not a venue provision. First, the wording
of Article 32, which indicates the places where the action for damages "must" be brought, underscores the mandatory nature of Article
28(1). Second, this characterization is consistent with one of the objectives of the Convention, which is to "regulate in a uniform manner
the conditions of international transportation by air." Third, the Convention does not contain any provision prescribing rules of
jurisdiction other than Article 28(1), which means that the phrase "rules as to jurisdiction" used in Article 32 must refer only to Article
28(1). In fact, the last sentence of Article 32 specifically deals with the exclusive enumeration in Article 28(1) as "jurisdictions," which, as
such, cannot be left to the will of the parties regardless of the time when the damage occurred.
This issue was analyzed in the leading case of Smith v. Canadian Pacific Airways, Ltd., 12 where it was held:
. . . Of more, but still incomplete, assistance is the wording of Article 28(2), especially when considered in the light of
Article 32. Article 28(2) provides that "questions of procedure shall be governed by the law of the court to which the
case is submitted" (Emphasis supplied). Section (2) thus may be read to leave for domestic decision questions
regarding the suitability and location of a particular Warsaw Convention case.
In other words, where the matter is governed by the Warsaw Convention, jurisdiction takes on a dual concept. Jurisdiction in the
international sense must be established in accordance with Article 28(1) of the Warsaw Convention, following which the jurisdiction of a
particular court must be established pursuant to the applicable domestic law. Only after the question of which court has jurisdiction is
determined will the issue of venue be taken up. This second question shall be governed by the law of the court to which the case is
submitted.
The petitioner submits that since Article 32 states that the parties are precluded "before the damages occurred" from amending the
rules of Article 28(1) as to the place where the action may be brought, it would follow that the Warsaw Convention was not intended to
preclude them from doing so "after the damages occurred."
Article 32 provides:
Art. 32. Any clause contained in the contract and all special agreements entered into before the damage occurred by
which the parties purport to infringe the rules laid down by this convention, whether by deciding the law to be applied,
or by altering the rules as to jurisdiction, shall be null and void. Nevertheless for the transportation of goods,
arbitration clauses shall be allowed, subject to this convention, if the arbitration is to take place within one of the
jurisdictions referred to in the first paragraph of Article 28.

His point is that since the requirements of Article 28(1) can be waived "after the damages (shall have) occurred," the article should be
regarded as possessing the character of a "venue" and not of a "jurisdiction" provision. Hence, in moving to dismiss on the ground of
lack of jurisdiction, the private respondent has waived improper venue as a ground to dismiss.
The foregoing examination of Article 28(1) in relation to Article 32 does not support this conclusion. In any event, we agree that even
granting arguendo that Article 28(1) is a venue and not a jurisdictional provision, dismissal of the case was still in order. The respondent
court was correct in affirming the ruling of the trial court on this matter, thus:
Santos' claim that NOA waived venue as a ground of its motion to dismiss is not correct. True it is that NOA averred
in its MOTION TO DISMISS that the ground thereof is "the Court has no subject matter jurisdiction to entertain the
Complaint" which SANTOS considers as equivalent to "lack of jurisdiction over the subject matter . . ." However, the
gist of NOA's argument in its motion is that the Philippines is not the proper place where SANTOS could file the
action meaning that the venue of the action is improperly laid. Even assuming then that the specified ground of the
motion is erroneous, the fact is the proper ground of the motion improper venue has been discussed therein.
Waiver cannot be lightly inferred. In case of doubt, it must be resolved in favor of non-waiver if there are special circumstances
justifying this conclusion, as in the petition at bar. As we observed in Javier vs. Intermediate Court of Appeals: 13
Legally, of course, the lack of proper venue was deemed waived by the petitioners when they failed to invoke it in
their original motion to dismiss. Even so, the motivation of the private respondent should have been taken into
account by both the trial judge and the respondent court in arriving at their decisions.
The petitioner also invokes KLM Royal Dutch Airlines v. RTC, 14 a decision of our Court of Appeals, where it was held that Article

28(1) is a venue provision. However, the private respondent avers that this was in effect reversed by the case of Aranas v.
United Airlines, 15 where the same court held that Article 28(1) is a jurisdictional provision. Neither of these cases is
binding on this Court, of course, nor was either of them appealed to us. Nevertheless, we here express our own
preference for the later case of Aranas insofar as its pronouncements on jurisdiction conform to the judgment we now
make in this petition.
B. The petitioner claims that the lower court erred in not ruling that under Article 28(1) of the Warsaw Convention, this
case was properly filed in the Philippines, because Manila was the destination of the plaintiff.
The Petitioner contends that the facts of this case are analogous to those in Aanestad v. Air Canada. 16 In that case, Mrs. Silverberg

purchased a round-trip ticket from Montreal to Los Angeles and back to Montreal. The date and time of departure were
specified but not of the return flight. The plane crashed while on route from Montreal to Los Angeles, killing Mrs.
Silverberg. Her administratrix filed an action for damages against Air Canada in the U.S. District Court of California. The
defendant moved to dismiss for lack of jurisdiction but the motion was denied thus:
. . . It is evident that the contract entered into between Air Canada and Mrs. Silverberg as evidenced by the ticket
booklets and the Flight Coupon No. 1, was a contract for Air Canada to carry Mrs. Silverberg to Los Angeles on a
certain flight, a certain time and a certain class, but that the time for her to return remained completely in her power.
Coupon No. 2 was only a continuing offer by Air Canada to give her a ticket to return to Montreal between certain
dates. . . .
The only conclusion that can be reached then, is that "the place of destination" as used in the Warsaw Convention is
considered by both the Canadian C.T.C. and the United States C.A.B. to describe at least two "places of
destination," viz., the "place of destination" of a particular flight either an "outward destination" from the "point of
origin" or from the "outward point of destination" to any place in Canada.
Thus the place of destination under Art. 28 and Art. 1 of the Warsaw Convention of the flight on which Mrs. Silverberg
was killed, was Los Angeles according to the ticket, which was the contract between the parties and the suit is
properly filed in this Court which has jurisdiction.
The Petitioner avers that the present case falls squarely under the above ruling because the date and time of his return flight to San
Francisco were, as in the Aanestad case, also left open. Consequently, Manila and not San Francisco should be considered the
petitioner's destination.
The private respondent for its part invokes the ruling in Butz v. British Airways, 17 where the United States District Court (Eastern

District of Pennsylvania) said:

. . . Although the authorities which addressed this precise issue are not extensive, both the cases and the
commentators are almost unanimous in concluding that the "place of destination" referred to in the Warsaw
Convention "in a trip consisting of several parts . . . is the ultimate destination that is accorded treaty jurisdiction." . . .

But apart from that distinguishing feature, I cannot agree with the Court's analysis in Aanestad; whether the return
portion of the ticket is characterized as an option or a contract, the carrier was legally bound to transport the
passenger back to the place of origin within the prescribed time and. the passenger for her part agreed to pay the
fare and, in fact, did pay the fare. Thus there was mutuality of obligation and a binding contract of carriage, The fact
that the passenger could forego her rights under the contract does not make it any less a binding contract. Certainly,
if the parties did not contemplate the return leg of the journey, the passenger would not have paid for it and the carrier
would not have issued a round trip ticket.
We agree with the latter case. The place of destination, within the meaning of the Warsaw Convention, is determined by the terms of
the contract of carriage or, specifically in this case, the ticket between the passenger and the carrier. Examination of the petitioner's
ticket shows that his ultimate destination is San Francisco. Although the date of the return flight was left open, the contract of carriage
between the parties indicates that NOA was bound to transport the petitioner to San Francisco from Manila. Manila should therefore be
considered merely an agreed stopping place and not the destination.
The petitioner submits that the Butz case could not have overruled the Aanestad case because these decisions are from different
jurisdictions. But that is neither here nor there. In fact, neither of these cases is controlling on this Court. If we have preferred the Butz
case, it is because, exercising our own freedom of choice, we have decided that it represents the better, and correct, interpretation of
Article 28(1).
Article 1(2) also draws a distinction between a "destination" and an "agreed stopping place." It is the "destination" and not an "agreed
stopping place" that controls for purposes of ascertaining jurisdiction under the Convention.
The contract is a single undivided operation, beginning with the place of departure and ending with the ultimate destination. The use of
the singular in this expression indicates the understanding of the parties to the Convention that every contract of carriage has one place
of departure and one place of destination. An intermediate place where the carriage may be broken is not regarded as a "place of
destination."
C. The petitioner claims that the lower court erred in not ruling that under Art. 28(1) of the Warsaw Convention, this
case was properly filed in the Philippines because the defendant has its domicile in the Philippines.
The petitioner argues that the Warsaw Convention was originally written in French and that in interpreting its provisions, American
courts have taken the broad view that the French legal meaning must govern. 18 In French, he says, the "domicile" of the carrier

means every place where it has a branch office.

The private respondent notes, however, that in Compagnie Nationale Air France vs. Giliberto, 19 it was held:
The plaintiffs' first contention is that Air France is domiciled in the United States. They say that the domicile of a
corporation includes any country where the airline carries on its business on "a regular and substantial basis," and
that the United States qualifies under such definition. The meaning of domicile cannot, however, be so extended. The
domicile of a corporation is customarily regarded as the place where it is incorporated, and the courts have given the
meaning to the term as it is used in article 28(1) of the Convention. (See Smith v. Canadian Pacific Airways, Ltd. (2d
Cir. 1971), 452 F2d 798, 802; Nudo v. Societe Anonyme Belge d' Exploitation de la Navigation Aerienne Sabena
Belgian World Airlines (E.D. pa. 1962). 207 F. Supp, 191; Karfunkel v. Compagnie Nationale Air France (S.D.N.Y.
1977), 427 F. Suppl. 971, 974). Moreover, the structure of article 28(1), viewed as a whole, is also incompatible with
the plaintiffs' claim. The article, in stating that places of business are among the bases of the jurisdiction, sets out two
places where an action for damages may be brought; the country where the carrier's principal place of business is
located, and the country in which it has a place of business through which the particular contract in question was
made, that is, where the ticket was bought, Adopting the plaintiffs' theory would at a minimum blur these carefully
drawn distinctions by creating a third intermediate category. It would obviously introduce uncertainty into litigation
under the article because of the necessity of having to determine, and without standards or criteria, whether the
amount of business done by a carrier in a particular country was "regular" and "substantial." The plaintiff's request to
adopt this basis of jurisdiction is in effect a request to create a new jurisdictional standard for the Convention.
Furthermore, it was argued in another case 20 that:
. . . In arriving at an interpretation of a treaty whose sole official language is French, are we bound to apply French
law? . . . We think this question and the underlying choice of law issue warrant some discussion
. . . We do not think this statement can be regarded as a conclusion that internal French law is to be "applied" in the
choice of law sense, to determine the meaning and scope of the Convention's terms. Of course, French legal usage
must be considered in arriving at an accurate English translation of the French. But when an accurate English
translation is made and agreed upon, as here, the inquiry into meaning does not then revert to a quest for a past or
present French law to be "applied" for revelation of the proper scope of the terms. It does not follow from the fact that
the treaty is written in French that in interpreting it, we are forever chained to French law, either as it existed when the
treaty was written or in its present state of development. There is no suggestion in the treaty that French law was
intended to govern the meaning of Warsaw's terms, nor have we found any indication to this effect in its legislative

history or from our study of its application and interpretation by other courts. Indeed, analysis of the cases indicates
that the courts, in interpreting and applying the Warsaw Convention, have, not considered themselves bound to apply
French law simply because the Convention is written in French. . . .
We agree with these rulings.
Notably, the domicile of the carrier is only one of the places where the complaint is allowed to be filed under Article 28(1). By specifying
the three other places, to wit, the principal place of business of the carrier, its place of business where the contract was made, and the
place of destination, the article clearly meant that these three other places were not comprehended in the term "domicile."
D. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the Warsaw Convention does not
apply to actions based on tort.
The petitioner alleges that the gravamen of the complaint is that private respondent acted arbitrarily and in bad faith, discriminated
against the petitioner, and committed a willful misconduct because it canceled his confirmed reservation and gave his reserved seat to
someone who had no better right to it. In short. the private respondent committed a tort.
Such allegation, he submits, removes the present case from the coverage of the Warsaw Convention. He argues that in at least two
American cases, 21 it was held that Article 28(1) of the Warsaw Convention does not apply if the action is based on tort.
This position is negated by Husserl v. Swiss Air Transport Company, 22 where the article in question was interpreted thus:
. . . Assuming for the present that plaintiff's claim is "covered" by Article 17, Article 24 clearly excludes any relief not
provided for in the Convention as modified by the Montreal Agreement. It does not, however, limit the kind of cause of
action on which the relief may be founded; rather it provides that any action based on the injuries specified in Article
17 "however founded," i.e., regardless of the type of action on which relief is founded, can only be brought subject to
the conditions and limitations established by the Warsaw System. Presumably, the reason for the use of the phrase
"however founded," in two-fold: to accommodate all of the multifarious bases on which a claim might be founded in
different countries, whether under code law or common law, whether under contract or tort, etc.; and to include all
bases on which a claim seeking relief for an injury might be founded in any one country. In other words, if the injury
occurs as described in Article 17, any relief available is subject to the conditions and limitations established by the
Warsaw System, regardless of the particular cause of action which forms the basis on which a plaintiff could seek
relief . . .
The private respondent correctly contends that the allegation of willful misconduct resulting in a tort is insufficient to exclude the case
from the comprehension of the Warsaw Convention. The petitioner has apparently misconstrued the import of Article 25(l) of the
Convention, which reads as follows:
Art. 25 (1). The carrier shall not be entitled to avail himself of the provisions of this Convention which exclude or limit
his liability. if the damage is caused by his willful misconduct or by such default on his part as, in accordance with the
law of the court to which the case is submitted, is considered to be equivalent to willful misconduct.
It is understood under this article that the court called upon to determine the applicability of the limitation provision must first be vested
with the appropriate jurisdiction. Article 28(1) is the provision in the Convention which defines that jurisdiction. Article 22 23 merely fixes

the monetary ceiling for the liability of the carrier in cases covered by the Convention. If the carrier is indeed guilty of willful
misconduct, it can avail itself of the limitations set forth in this article. But this can be done only if the action has first been
commenced properly under the rules on jurisdiction set forth in Article 28(1).
III
THE ISSUE OF PROTECTION TO MINORS
The petitioner calls our attention to Article 24 of the Civil Code, which states:
Art. 24. In all contractual property or other relations, when one of the parties is at a disadvantage on account of his
moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant
for his protection.
Application of this article to the present case is misplaced. The above provision assumes that the court is vested with jurisdiction to rule
in favor of the disadvantaged minor, As already explained, such jurisdiction is absent in the case at bar.
CONCLUSION

A number of countries have signified their concern over the problem of citizens being denied access to their own courts because of the
restrictive provision of Article 28(1) of the Warsaw Convention. Among these is the United States, which has proposed an amendment
that would enable the passenger to sue in his own domicile if the carrier does business in that jurisdiction. The reason for this proposal
is explained thus:
In the event a US citizen temporarily residing abroad purchases a Rome to New York to Rome ticket on a foreign air
carrier which is generally subject to the jurisdiction of the US, Article 28 would prevent that person from suing the
carrier in the US in a "Warsaw Case" even though such a suit could be brought in the absence of the Convention.
The proposal was incorporated in the Guatemala Protocol amending the Warsaw Convention, which was adopted at Guatemala City on
March 8,
1971. 24 But it is still ineffective because it has not yet been ratified by the required minimum number of contracting parties.

Pending such ratification, the petitioner will still have to file his complaint only in any of the four places designated by
Article 28(1) of the Warsaw Convention.
The proposed amendment bolsters the ruling of this Court that a citizen does not necessarily have the right to sue in his own courts
simply because the defendant airline has a place of business in his country.
The Court can only sympathize with the petitioner, who must prosecute his claims in the United States rather than in his own country at
least inconvenience. But we are unable to grant him the relief he seeks because we are limited by the provisions of the Warsaw
Convention which continues to bind us. It may not be amiss to observe at this point that the mere fact that he will have to litigate in the
American courts does not necessarily mean he will litigate in vain. The judicial system of that country in known for its sense of fairness
and, generally, its strict adherence to the rule of law.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered.