Crisostomo v. CA
The decision of the
FACTS: A travel agency is not an entity engaged in the business of
transporting either passengers or goods and is therefore, neither a
private nor a common carrier. Respondent did not undertake to
transport petitioner from one place to another since its covenant with
its customers is simply to make travel arrangements in their behalf.
Respondents services as a travel agency include procuring tickets
and facilitating travel permits or visas as well as booking customers
for tours. It is in this sense that the contract between the parties in
this case was an ordinary one for services and not one of carriage.
Petitioner Estela L. Crisostomo contracted the services of respondent
Caravan Travel and Tours International, Inc. to arrange and facilitate
her booking, ticketing, and accommodation in a tour dubbed Jewels
of Europe. A 5% discount on the total cost of P74,322.70 which
included the airfare was given to the petitioner. The booking fee was
also waived because petitioners niece, Meriam Menor, was
respondents ticketing manager. On June 12, 1991, Menor went to
her aunts residence to deliver petitioners travel documents and
plane tickets. In return, petitioner gave the full payment for the
package tour. Menor then told her to be at the NAIA on Saturday,
June 15, 1991, two hours before her flight on board British Airways.
Without checking her travel documents, petitioner went to NAIA and
to her dismay, she discovered that the flight she was supposed to take
had already departed the previous day. She learned that her plane
ticket was for the flight scheduled on June 14, 1991. She called up
Menor to complain and Menor suggested upon petitioner to take
another tour British Pageant. Petitioner was asked anew to pay
US$785.00. Petitioner gave respondent US$300 as partial payment
and commenced the trip. ISSUE: Whether or not respondent Caravan
did not observe the standard of care required of a common carrier
when it informed the petitioner wrongly of the flight schedule.
HELD: The petition was denied for lack of merit.
Court of Appeals was affirmed. A common carrier is defined under
Article 1732 of the Civil Code as persons, corporations, firms or
associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water or air, for compensation,
affecting their services to the public. It is obvious from the above
definition that respondent is not an entity engaged in the business of
transporting either passengers or goods and is therefore, neither a
private nor a common carrier. Respondent did not undertake to
transport petitioner from one place to another since its covenant with
its customers is simply to make travel arrangements in their behalf.
Respondents services as a travel agency include procuring tickets
and facilitating travel permits or visas as well as booking customers
for tours. It is in this sense that the contract between the parties in
this case was an ordinary one for services and not one of carriage.
The standard of care required of respondent is that of a good father
of a family under Article 1173 of the Civil Code. This connotes
reasonable care consistent with that which an ordinarily prudent
person would have observed when confronted with a similar
situation. It is clear that respondent performed its prestation under
the contract as well as everything else that was essential to book
petitioner for the tour. Had petitioner exercised due diligence in the
conduct of her affairs, there would have been no reason for her to
miss the flight. Needless to say, after the travel papers were delivered
to petitioners, it became incumbent upon her to take ordinary care of
her concerns. This undoubtedly would require that she at least read
the documents in order to assure herself of the important details
regarding the trip.
First Philippine Industrial v. Court of Appeals
FACTS: Petitioner is a grantee of a pipeline concession under RA
387 to contract, install and operate oil pipelines. The original
pipeline concession was granted in 1967 and was renewed by the
Energy Regulatory Board (ERB) in 1992. In January 1995, petitioner
applied for a mayors permit in Batangas City. Respondent City
Treasurer required petitioner to pay a local tax based on its gross
receipts for the fiscal year in 1993 pursuant to the Local Government
Code before the permit could be issue. In order not to hamper its
operations, petitioner paid the tax under protest amounting to
239,019.01 for the first quarter of 1993. Petitioner filed a letter-
protest and states that FPIC is a pipeline operator with a government
concession granted engaged in transporting petroleum products from
the Batangas refineries, via pipeline, to Sucat and JTF Pandacan
Terminals. As such, it is exempt from paying tax on gross receipts.
Moreover, Transportation contractors are not included in the
enumeration of contractors under Section 131, Paragraph (h) of
LGC. City Treasurer denied the protest contending that petitioner
cannot be considered engaged in the transportation business, thus it
cannot claim exemption. Petitioner filed with RTC a complaint for
tax refund with prayer for writ of preliminary injunction against
respondents. Traversing the complaint, respondents argued that
petitioner could not be exempt from taxes as said exemption applies
only to transportation contractors and persons engaged in the
transportation by hire and common carriers by air, land and water.
They also assert that pipelines are not included in the term common
carrier which refers solely to ordinary carriers such as trucks, trains,
ships and the like. They further posit that common carrier pertains to
the mode or manner by which a product is delivered to its
destination.
TC: Dismissed the complaint. Exemption to tax has become unclear.
Tax exemption granted under Sec 133 (j.) encompasses only
common carriers so as not to overburden the riding public or
commuters with taxes. FPIC is not a common carrier but a special
carrier extending its services and facilities to a single specific or
special customer under special contract. Moreover, even franchise
grantees are taxed as well as contractors.
CA: affirming TCs dismissal of petitioners complaint. MFR was
also denied.
SC: At first, petition was denied. Petitioner moved for a
reconsideration which was granted. Petition was reinstated.
ISSUE: Whether or not petitioner is a common carrier.
HELD: A common carrier is one who holds himself out to the public
as engaged in the business of transporting persons or property from
place to place, for compensation, offering his services to the public
generally. Article 1732 of the Civil Code defines common carrier as
any person, corporation, firm or association engaged in the business
of carrying or transporting passengers or goods or both, by land,
water, or air, for compensation, offering their services to the public.
The fact that petitioner has a limited clientele does not exclude it
from the definition of a common carrier. There is no doubt that
petitioner is a common carrier. It is engaged in the business of
transporting or carrying goods, i.e. petroleum products, for hire as a
public employment. It undertakes to carry for all persons
indifferently, that is, to all persons who choose to employ its
services, and transports the goods by land and for compensation. As
correctly pointed out by petitioner, Civil Code makes no distinction
as to the means of transporting, as long as it is by land, water or air.
It does not provide that the transportation of the passengers or goods
should be by motor vehicle. In fact, in the U.S., oil pipe line
operators are considered common carriers. With regard to the other
issue in the case at bar regarding the tax exemption, it is clear that
the legislative intent in excluding from the taxing power of the local
government unit the imposition of business tax against common
carriers is to prevent a duplication of the so-called "common carrier's
tax." Petitioner is already paying 3% common carrier's tax on its
gross sales/earnings under the National Internal Revenue Code. To
tax petitioner again on its gross receipts in its transportation of
petroleum business would defeat the purpose of the Local
Government Code.

NOTES: TEST for determining whether a party is a common carrier

of goods:

1. He must be engaged in the business of carrying goods for others as

a public employment, and must hold himself out as ready to engage
in the transportation of goods for person generally as a business and
not as a casual occupation;

2. He must undertake to carry goods of the kind to which his

business is confined;

3. He must undertake to carry by the method by which his business is

conducted and over his established roads; and

4. The transportation must be for hire.

De Guzman v. CA
Facts:
Respondent Ernesto Cendana was a junk dealer. He buys scrap
materials and brings those that he gathered to Manila for resale using
2 six-wheeler trucks. On the return trip to Pangasinan, respondent
would load his vehicle with cargo which various merchants wanted
delivered, charging fee lower than the commercial rates. Sometime
in November 1970, petitioner Pedro de Guzman contracted with
respondent for the delivery of 750 cartons of Liberty Milk. On
December 1, 1970, respondent loaded the cargo. Only 150 boxes
were delivered to petitioner because the truck carrying the boxes was
hijacked along the way. Petitioner commenced an action claiming
the value of the lost merchandise. Petitioner argues that respondent,
being a common carrier, is bound to exercise extraordinary diligence,
which it failed to do. Private respondent denied that he was a
common carrier, and so he could not be held liable for force majeure.
The trial court ruled against the respondent, but such was reversed by
the Court of Appeals.
Issues:
(1) Whether or not private respondent is a common carrier
(2) Whether private respondent is liable for the loss of the goods
Held:
(1) Article 1732 makes no distinction between one whose principal
business activity is the carrying of persons or goods or both, and one
who does such carrying only as an ancillary activity. Article 1732
also carefully avoids making any distinction between a person or
enterprise offering transportation service on a regular or scheduled
basis and one offering such service on an occasional, episodic or
unscheduled basis. Neither does Article 1732 distinguish between a
carrier offering its services to the "general public," i.e., the general
community or population, and one who offers services or solicits
business only from a narrow segment of the general population. It
appears to the Court that private respondent is properly characterized
as a common carrier even though he merely "back-hauled" goods for
other merchants from Manila to Pangasinan, although such
backhauling was done on a periodic or occasional rather than regular
or scheduled manner, and even though private respondent's principal
occupation was not the carriage of goods for others. There is no
dispute that private respondent charged his customers a fee for
hauling their goods; that fee frequently fell below commercial freight
rates is not relevant here. A certificate of public convenience is not a
requisite for the incurring of liability under the Civil Code provisions
governing common carriers.
(2) Article 1734 establishes the general rule that common carriers are
responsible for the loss, destruction or deterioration of the goods
which they carry, "unless the same is due to any of the following
causes only:
a. Flood, storm, earthquake, lightning, or other natural disaster or
calamity;
b. Act of the public enemy in war, whether international or civil;
c. Act or omission of the shipper or owner of the goods;
d. The character of the goods or defects in the packing or in the
containers; and
e. Order or act of competent public authority."
The hijacking of the carrier's truck - does not fall within any of the
five (5) categories of exempting causes listed in Article 1734. Private
respondent as common carrier is presumed to have been at fault or to
have acted negligently. This presumption, however, may be
overthrown by proof of extraordinary diligence on the part of private
respondent. We believe and so hold that the limits of the duty of
extraordinary diligence in the vigilance over the goods carried are
reached where the goods are lost as a result of a robbery which is
attended by "grave or irresistible threat, violence or force." we hold
that the occurrence of the loss must reasonably be regarded as quite
beyond the control of the common carrier and properly regarded as a
fortuitous event. It is necessary to recall that even common carriers
are not made absolute insurers against all risks of travel and of
transport of goods, and are not held liable for acts or events which
cannot be foreseen or are inevitable, provided that they shall have
complied with the rigorous standard of extraordinary diligence.
Calvo v. UCPB

FACTS: Petitioner Virgines Calvo is the owner of Transorient

Container Terminal Services, Inc. (TCTSI), a sole proprietorship
customs broker. Petitioner entered into a contract with San Miguel
Corporation (SMC) for the transfer of 114 reels of semi-chemical
fluting paper and 124 reels of kraft liner board from the Port Area in.
Manila to SMC's warehouse at the Tabacalera Compound,
Romualdez St., Ermita, Manila. The cargo was insured by
respondent UCPB General Insurance Co., Inc. The shipment in
question, contained in 30 metal vans, arrived in Manila on board
"M/V Hayakawa Maru" and, after 24 hours, were unloaded from the
vessel to the custody of the arrastre operator, Manila Port Services,
Inc. Petitioner then withdrew the cargo from the arrastre operator and
delivered it to SMC's warehouse in Ermita, Manila Thereafter, the
goods were inspected by Marine Cargo Surveyors, who found that 15
reels of the semi-chemical fluting paper were "wet/stained/torn" and
3 reels of kraft liner board were likewise torn. The damage was
placed at P93,112.00. SMC collected payment from respondent
UCPB under its insurance contract for the aforementioned amount.
In turn, respondent, as subrogee of SMC, brought suit against
petitioner in the Regional Trial Court, Branch 148, Makati City,
which, on December 20, 1995, rendered judgment finding petitioner
liable to respondent for the damage to the shipment.

ISSUE: Whether or not petitioner is a common carrier

HELD: Yes. The transportation of goods is an integral part of her

business. To uphold petitioner's contention would be to deprive those
with whom she contracts the protection which the law affords them
notwithstanding the fact that the obligation to carry goods for her
customers, as already noted, is part and parcel of petitioner's
business.
British Airways v. Court of Appeals

Facts: On April 6, 1989, Mahtani decided to visit his relative in

Bombay, India. In anticipation of his visit, he obtained the services
of a certain Mr. Gemar to prepare his travel plan. Since british
Airways had no ticket flights from Manila to Bombay, Maktani had
to take a connecting flight to Bombay on board British Airways.
Prior to his departure, Maktani checked in the PAL counter in
Manila his two pieces of luggage containing his clothing and
personal effects, confident that upon reaching Hong Kong, the same
would be transferred to the BA flight bound for Bombay,
Unfortunately, when Maktani arrived in Bombay, he discovered that
his luggage was missing and that upon inquiry from the BA
representatives, he was told that the same might have been diverted
to London. After plaintiff waiting for his luggage for one week, BA
finally advised him to file a claim accomplishing the property.

Issue: Whether or not defendant BA is liable for compulsory

damages and attorneys fee, as well as the dismissal of its third party
complaint against PAL

Held: The contract of transportation was exclusively between

Maktani and BA. The latter merely endorsing the Manila to Hong
Kong log of the formers journey to PAL, as its subcontractor or
agent. Conditions of contacts was one of continuous air
transportation from Manila to Bombay. The Court of Appeals should
have been cognizant of the well-settled rule that an agent is also
responsible for any negligence in the performance of its function and
is liable for damages which the principal may suffer by reason of its
negligent act. Since the instant petition was based on breach of
contract of carriage, Maktani can only sue BA and not PAL, since
the latter was not a party in the contract.
Dangwa v. CA
FACTS:
May 13, 1985: Theodore M. Lardizabal was driving a passenger
bus belonging to Dangwa Transportation Co. Inc. (Dangwa)
The bus was at full stop bet. Bunkhouses 53 and 54 when Pedro
alighted
Pedro Cudiamat fell from the platform of the bus when it
suddenly accelerated forward
Pedro was ran over by the rear right tires of the vehicle
Theodore first brought his other passengers and cargo to their
respective destinations before bringing Pedro to Lepanto
Hospital where he expired
Private respondents filed a complaint for damages against
Dangwa for the death of Pedro Cudiamat
Dangwa: observed and continued to observe the extraordinary
diligence required in the operation of the co. and the supervision
of the employees even as they are not absolute insurers of the
public at large
RTC: in favour of Dangwa holding Pedrito as negligent and his
negligence was the cause of his death but still ordered to pay in
equity P 10,000 to the heirs of Pedrito
CA: reversed and ordered to pay Pedrito indemnity, moral
damages, actual and compensatory damages and cost of the suit
Stepping and standing on the platform of the bus is already
considered a passenger and is entitled all the rights and
protection pertaining to such a contractual relation
Duty extends to boarding and alighting
GR: By contract of carriage, the carrier assumes the express
obligation to transport the passenger to his destination safely and
observe extraordinary diligence with a due regard for all the
circumstances, and any injury that might be suffered by the
passenger is right away attributable to the fault or negligence of
the carrier
EX: carrier to prove that it has exercised extraordinary diligence
as prescribed in Art. 1733 and 1755 of the Civil Code
Failure to immediately bring Pedrito to the hospital despite his
serious condition = patent and incontrovertible proof of their
negligence
Hospital was in Bunk 56
1st proceeded to Bunk 70 to allow a passenger (who later called
the family of Pedrito on his own will) to alight and deliver a
refrigerator
In tort, actual damages is based on net earnings

ISSUE: W/N Dangwa should be held liable for the negligence of its
driver Theodore

HELD: YES. CA affirmed.

A public utility once it stops, is in effect making a continuous
offer to bus riders (EVEN when moving as long as it is still slow
in motion)
Duty of the driver: do NOT make acts that would have the effect
of increasing peril to a passenger while he is attempting to board
the same
Premature acceleration of the bus in this case = breach of duty
LRTA v. Navidad
Facts: Nicanor Navidad, then drunk, entered the EDSA LRT station
after purchasing token. While Navidad was standing on the platform
near the LRT tracks, Junelito Escartin, on-duty security guard
approached Navidad. A misunderstand or altercation ensued between
the two that led to a fistfight. Later on, Navidad fell on the tracks and
was hit by an incoming train operated by Rodolfo Roman. Navidad
was killed instantaneously. The heirs of Nicanor filed a complaint
against Escartin, Roman, the LRTA, Metropolitan Transit and
Prudent for the death of Nicanor.
Issue: Did LRTA fail to exercise the degree of diligence necessary
for common carriers making it liable for the death of Navidad?
have acted beyond the scope of their authority ir in violation of the
orders of the common carriers. Such duty is not only during the
course of the trip but for so long as the passenger is within the
premises and where they ought to be in pursuant to the contract of
carriage. In case of such injury or death, a common carrier is
presumed to be at fault or negligent, and by simple proof of
negligence, the passenger is relieved of the duty to still establish the
fault or negligence of the carrier or of its employees and the burden
shifts to the carrier to prove the injury is due to an unforeseen event
of force majeure. The foundation of LRTAs liability is the contract
of carriage and its obligation to indemnify the victim arises from the
breach of that contract of carriage by reason of its failure to exercise
the diligence required of the common carrier.

Trial court ruling: The trial court ordered Prudent Security and
Escartin to jointly and severally pay the Navidads actual damages,
compensatory damages, indemnity for the death of Nicanor, moral
damages, attorneys fees and costs of suit. The court however
dismissed the complaint against LRTA and Roman for lack of merit.

The Court of Appeals exonerated Prudent from liability and instead

held LRTA and Roman jointly and severally liable.

Held: A common carrier, both from the nature of its business and for
reason of public policy is duty bound to exercise utmost diligence in
ensuring the safety of the passengers. Article 1755 provide that a
common carrier is bound to varr the passenger safely as far as human
care and foresight can provide, using outmost diligence of a very
cautious person, with due regard for all circumstances. Furthermore,
Art 1759 of the Civil Code provide that common carriers are liable
fot the death and injuries to passengers through the negligence or
wilful acts of the formers employees, although such employees may
NATIONAL DEVELOPMENT COMPANY vs. THE COURT
OF APPEALS and DEVELOPMENT INSURANCE AND
SURETY CORPORATION

Facts:

National Development Company (NDC) appointed Maritime

Company of the Philippines (MCP) as its agent to manage and
operate its vessel, Dona Nati, for and in behalf of its account. In
1964, while en route to Japan from San Francisco, Dona Nati
collided with a Japanese vessel, SS Yasushima Maru, causing its
cargo to be damaged and lost. The private respondent, as insurer to
the consigners, paid almost Php400,000.00 for said lost and damaged
cargo. Hence, the private respondent instituted an action to recover
from NDC.

Issue:

Which laws govern the loss and destruction of goods due to collision
of vessels outside Philippine waters?

Ruling:

In a previously decided case, it was held that the law of the country
to which the goods are to be transported governs the liability of the
common carrier in case of their loss, destruction or deterioration
pursuant to Article 1753 of the Civil Code. It is immaterial that the
collision actually occurred in foreign waters, such as Ise Bay, Japan.

It appears, however, that collision falls among matters not

specifically regulated by the Civil Code, hence, we apply Articles
826 to 839, Book Three of the Code of Commerce, which deal
exclusively with collision of vessels.
Lufthansa v IAC
On January 21, 1979, respondent Henry H. Alcantara shipped
thirteen (13) pieces of luggage through petitioner Lufthansa from
Teheran to Manila as evidenced by Lufthansa Air Waybill No. 220-
9776-2733 (Exhibit "A", also Exhibit "1"). The Air Waybill
discloses that the actual gross weight of the thirteen (13) pieces of
luggage is 180 kilograms. Respondent Henry H. Alcantara did not
declare an inventory of the contents or the value of the luggages
when he delivered them to Lufthansa.
On March 3, 1979, the thirteen (13) pieces of luggage were boarded
in one of Lufthansa's flights which arrived in Manila on the same
date. After the luggages arrived in Manila, the consignee, respondent
Teresita Alcantara, was able to claim from the cargo broker
Philippine Skylanders, Inc. on March 6, 1979 only twelve (12) out of
the thirteen (13) pieces of luggage with a total weight of 174
kilograms (Exhibits "20" and "20-A").
The private respondents advised Lufthansa of the loss of one of the
luggages and of the contents thereof (Exhibits "B", "C" and "D").
Petitioner Lufthansa sent telex tracing messages to different stations
and to the Philippine Airlines which actually carried the cargo
(Exhibits "3", "5", "7", "9", "11", "12", "13" and "14"). But all efforts
in tracing the missing luggage were fruitless (Exhibits "4", "6", "8",
"10", "12" and "17").
Since efforts to trace the missing luggage yielded negative results,
Lufthansa informed Henry Alcantara accordingly and advised him to
file a claim invoice (Exhibits "18" and "19").
On September 24, 1979, the private respondents wrote the petitioner
demanding the production of the missing luggage within then (10)
days from receipt (Exhibit "E"). Since the petitioner did not comply
with said demand, the private respondents filed a complaint dated
May 7, 1980, for breach of contract with damages against the
petitioner before the Court of First Instance of Manila, Sixth Judicial
District, Branch XXIV.
The petitioner filed its answer to the complaint alleging that the
Warsaw Convention limits the liability of the carrier, if any, with
respect to cargo to a sum of 250 francs per kilo ($20.00 per kilo or
$9.07 per pound), unless a higher value is declared in advance and
additional charges are paid by the passenger and the conditions of the
contract as set forth in the air waybill expressly subject the contract
of carriage of cargo to the Warsaw Convention. The petitioner also
alleged that it never acted fraudulently or in bad faith so as to entitle
respondent spouses to moral damages and attorney's fees, nor did it
act in a wanton, fraudulent, reckless, oppressive or malevolent
manner as to entitle spouses to exemplary damages.
After trial, on November 18, 1981, the trial court ** rendered its
decision, the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of plaintiffs,
spouses Henry H. Alcantara and Teresita Alcantara, and against
Lufthansa German Airlines.
(1) Ordering defendant to pay plaintiffs the sum of P200,000.00 for
actual damages, with interest thereon at the legal rate from the date
of the filing of the complaint until the principal sum is fully paid;
(2) Ordering defendant to pay plaintiffs the sum of P20,000.00 as
attorney's fees; and
(3) Ordering defendant to pay the costs of suit.
SO ORDERED. (Rollo, pp. 62-63)
The petitioner appealed to the then Intermediate Appellate Court. On
May 31, 1984, the appellate promulgated its decision, the dispositive
portion of which reads:
WHEREFORE, PREMISES CONSIDERED, the decision appealed
from is hereby AFFIRMED with the modification that the amount of
P20,000.00 awarded as attorney's fees shall be deleted, the costs to
be borne by the respective parties.
SO ORDERED. (Rollo, p. 39).
Its motion for reconsideration having been denied, the petition filed
the instant petition.
The main issue in this case is whether or not the private respondents
are entitled to an award of damages beyond the liability set forth in
the Warsaw Convention and in the Airwaybill of Lading.
The petitioner contends that 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. After the Senate of the Republic of the
Philippines, by its Resolution No. 19 of May 16, 1950, concurred in
the adherence by the government of the Philippines to the said
Convention, and after the government of the Republic of the
Philippines formally notified the government of the Republic of
Poland of such adherence on November 9, 1950, Presidential
Proclamation No. 201 signed by the late President Ramon
Magsaysay on September 23, 1965 made public the adherence of the
Republic of the Philippines to the said Warsaw Convention which
applies to all international transportation of persons, baggage or
goods performed by aircraft for hire. Since the contract between the
petitioner and respondent Henry H. Alcantara embodied in
Airwaybill No. 220-9776-2733 is one of international carriage by air,
it is subject to the Warsaw Convention, which in Article 22 limits the
liability of the carrier with respect to checked baggage to a sum of
250 French francs per kilo (equivalent to US $20.00/kilo) unless a
higher value has been declared in advance and additional charges are
paid by the passenger. Respondent Henry H. Alcantara having
admitted that he did not declare the value or contents of the missing
luggage, the liability of the petitioner is therefore limited by the
Warsaw Convention and the Airwaybill to US$20.00 per kilo.
The petitioner further argues that the award of P200,000.00 as actual
damages is not borne by evidence. It insists that the testimonial and
documentary evidence of respondent spouses failed to indicate the
actual value of the alleged contents of the missing luggage and have
not presented actual proof as to the contents, total weight and value
of the missing luggage as well as the actual damage they suffered
(Rollo, pp. 88-89, 95).
On the other hand, the private respondents maintain that the
petitioner, as found by the trial and appellate courts, waived the
benefits of the Warsaw Convention when it offered a settlement in
the amount of $200.00 which is much higher than what the
Convention prescribes and never raised timely objections during the
trial to the introduction of evidence regarding the actual claims and
damages sustained by respondent Alcantara.
The private respondents also claim that in the trial of the case, they
proved a loss of P200,000.00 and an expense of $15,000.00 in vainly
trying to locate the missing luggage all over Europe and the trial
court awarded less than what was proven (Rollo, p. 118).
The petition is without merit.
The loss of one luggage belonging to the private respondents while
the same was in the custody of the petitioner is not disputed. The
contract of air carriage generates a relation attended with a public
duty. Neglect or malfeasance of the carrier's employees could given
ground for an action for damages (Zulueta v. Pan American World
Airways, Inc., 43 SCRA 37 [1972]). Common carriers are liable for
the missing goods for failure to comply with its duty (American
Insurance Co., Inc. v. Macondray & Co., Inc., 39 SCRA 494 [171]).
In Alitalia vs. Intermediate Appellate Court (192 SCRA 9 [1990])
where petitioner Alitalia as carrier failed to deliver a passenger's (Dr.
Felipa Pablo's) baggage containing the papers she was scheduled to
read and the materials which would have enabled her to make
scientific presentation (consisting of slides, autoradiograms or films,
tables and tabulations ) in a prestigious international conference in
Rome where she was invited to participate in the conference,
extended by the Joint FAO/IAEA Division of Atomic Energy in
Food and Agriculture of the Untied Nations, as a consequence of
which she failed to participate in the conference, this Court held that
the Warsaw Convention does not exclude liability for other breaches
of contract by the carrier. Thus:
The Convention does not thus operate as an exclusive enumeration
of the instances of an airline's 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 wilfull 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 Convention's
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 latter's property, the Convention might
successfully be pleaded as the sole gauge to determine the carrier's
liability to the passenger. Neither may the Convention 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.
xxx xxx xxx
In the case at bar, no bad faith or otherwise improper conduct may be
ascribed to the employees of petitioner airline; and Dr. Pablo's
luggage was eventually returned to her, belatedly, it is true, but
without appreciable damage. The fact is, nevertheless, that some
species of injury was caused to Dr. Pablo because petitioner
ALITALIA misplaced her baggage and failed to deliver it to her at
the time appointed a breach of its contract of carriage, to be sure
with the result that she was unable to read the paper and make the
scientific presentation (consisting of slides, autoradiograms or films,
tables and tabulations) that she had painstakingly labored over, at the
prestigious international conference, to attend which she had traveled
hundreds of miles, to her chagrin and embarrassment and the
disappointment and annoyance of the organizers. She felt, no
unreasonably, that the invitation for her to participate at the
conference, extended by the Joint FAO/IAEA Division of Atomic
Energy in Food and Agriculture of the United Nations, was a
singular honor not only to herself, but to the University of the
Philippines and the country as well, an opportunity to make some
sort of impression among her colleagues in that field of scientific
activity. The opportunity to claim this honor or distinction was
irretrievably lost to her because of Alitalia's breach of its contract.
Apart from this, there can be no doubt that Dr. Pablo underwent
profound distress and anxiety, which gradually turned to panic and
finally despair, from the time she learned that her suitcases were
missing up to the time when, having gone to Rome, she finally
realized that she would no longer be able to take part in the
conference. As she herself put it, she "was really shocked and
distraught and confused."
Certainly, the compensation for the injury suffered by Dr. Pablo
cannot under the circumstances be restricted to that prescribed by the
Warsaw Convention for delay in the transport of baggage.
She is not, of course, entitled to be compensated for loss or damage
to her luggage. As already mentioned, her baggage was ultimately
delivered to her in Manila, tardily, but safely. She is however entitled
to nominal damages which, as the law says, is adjudicated in
order that a right of the plaintiff, which has been violated or invaded
by the defendant, may be vindicated and recognized, and not for the
purpose of indemnifying the plaintiff that for any loss suffered
and this Court agrees that the respondent Court of Appeals correctly
set the amount thereof at P40,000.00.
In the case at bar, the trial court found that: (a) petitioners airline has
not successfully refuted the presumption established by Article 1735
of the Civil Code that the loss of the luggage in question was due to
the negligence or fault of its employees; (b) the contents of the
missing luggage of private respondents could not be replaced and
were assessed at P200,000.00 by the latter;
(c) respondent Henry Alcantara spent about $15,000.00 in trying to
locate said luggage in Frankfurt, Germany, London, United Kingdom
and Hongkong;
(d) there being no evidence to the contrary, the foregoing
assessments made by private respondents were fair and reasonable;
and (e) private respondents were unable to present ample evidence to
prove fraud and bad faith and are therefore not entitled to moral
damages under Article 2220 of the Civil Code (Rollo, p. 61).
On the other hand, the Court of Appeals found that the lower court's
award of P200,000.00 as actual compensatory damages is well based
factually and legally (Rollo, p. 37) except as to the deletion of
attorney's fees due to the absence of findings of gross and evident
bad faith (Rollo, p. 39).
Under the circumstances, there appears to be no cogent reason to
disturb the factual findings of both the trial court and the Court of
Appeals.
Furthermore, the respondent court found that petitioner waived the WHEREFORE, the petition is Dismissed and the questioned decision
applicability of the Warsaw Convention to the case at bar when it and resolution of the appellate court are Affirmed. No costs.
offered private respondent a higher amount than that which is
provided in the said law and failed to raise timely objections during SO ORDERED.
the trial when questions and answers were brought out regarding the
actual claims and damages sustained by Alcantara which were even
subjected to lengthy cross examination by Lufthansa's counsel. In
Abrenica v. Gonda (34 Phil. 739), this Court held:

. . . (I)t has been repeatedly laid down as a rule of evidence that a

protest or objection against the admission of any evidence must be
made at the proper time, and that if not so made it will be understood
to have been waived. The proper time to make a protest or objection
is when, from the question addressed to the witness, or from the
answer thereto, or from the presentation of proof, the inadmissibility
of evidence is, or may be inferred.

It is also settled that the court cannot disregard evidence which

would ordinarily be incompetent under the rules but has been
rendered admissible by the failure of a party to object thereto. Thus:

. . . The acceptance of an incompetent witness to testify in a civil

suit, as well as the allowance of improper questions that may be put
to him while on the stand is a matter resting in the discretion of the
litigant. He may asset his right by timely objection or he may waive
it, expressly or by silence. In any case, the option rests with him.
Once admitted, the testimony is in the case for what it is worth and
the judge has no power to disregard it for the sole reason that it could
have been excluded, if it had been objected to, nor to strike it out on
its own motion. (Cruz v. CA, et al., 192 SCRA 209 [1990] citing
Marella vs. Reyes, 12 Phil. 1). (Emphasis supplied).