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21
SO ORDERED.
Melencio-Herrera (Chairperson), Paras and Padilla, JJ., concur.
Sarmiento, J., is on leave.
a.
Negligence (1) Rule in America (a) In Absence of
Organic or Statutory Provisions Regulating Subject
aa. Majority Rule. In the absence of statute, it is
settled by the weight of authority in the United States,
that whatever limitations against its common-law
liability are permissible to a carrier, it cannot limit its
liability for injury to or loss of goods shipped, where
such injury or loss is caused by its own negligence. This
is the common-law doctrine and it makes no
difference that there is no statutory prohibition
against contracts of this character.
PAR. 196. bb. Considerations on Which Rule Based.
The rule, it is said, rests on considerations of public
policy. The undertaking is to carry the goods, and to
relieve the shipper from all liability for loss or damage
arising from negligence in performing its contract is to
ignore the contract itself. The natural effect of a
limitation of liability against negligence is to induce
want of care on the part of the carrier in the
performance of its duty. The shipper and the common
carrier are not on equal terms; the shipper must send
his freight by the common carrier, or not at all; he is
therefore entirely at the mercy of the carrier, unless
protected by the higher power of the law against
being forced into contracts limiting the carrier's
liability. Such contracts are wanting in the element of
voluntary assent.
PAR. 197. cc. Application and Extent of Rule
(aa) Negligence of Servants. The rule prohibiting
limitation of liability for negligence is often stated as a
prohibition of any contract relieving the carrier from
loss or damage caused by its own negligence or
misfeasance, or that of its servants; and it has been
specifically decided in many cases that no contract
limitation will relieve the carrier from responsibility for
the negligence, unskillfulness, or carelessness of its
employees.
Based upon the findings of fact of the trial court which are
sustained by the evidence, the plaintiff delivered to the
defendants 164 cases of silk consigned and to be delivered by
the defendants to Salomon Sharuff in Surigao. Four of such
cases were never delivered, and the evidence shows that their
value is the alleged in the complaint.
There is no merit in the appeal. The judgment of the lower
court is affirmed, with costs.
Avancea, C.J., Street, Malcolm, Villamor, Ostrand and VillaReal, JJ., concur.
just under the circumstances and has been fairly and freely
agreed upon."
The requirements provided in Article 1750 of the New Civil
Code must be complied with before a common carrier can
claim a limitation of its pecuniary liability in case of loss,
destruction or deterioration of the goods it has undertaken to
transport. In the case before us We believe that the
requirements of said article have not been met. It can not be
said that the appellee had actually entered into a contract with
the appellant, embodying the conditions as printed at the back
of the ticket stub that was issued by the appellant to the
appellee. The fact that those conditions are printed at the back
of the ticket stub in letters so small that they are hard to read
would not warrant the presumption that the appellee was
aware of those conditions such that he had "fairly and freely
agreed" to those conditions. The trial court has categorically
stated in its decision that the "Defendant admits that
passengers do not sign the ticket, much less did plaintiff herein
sign his ticket when he made the flight on November 23, 1959."
We hold, therefore, that the appellee is not, and can not be,
bound by the conditions of carriage found at the back of the
ticket stub issued to him when he made the flight on
appellant's plane on November 23, 1959.
The liability of the appellant in the present case should be
governed by the provisions of Articles 1734 and 1735 of the
New Civil Code, which We quote as follows:
ART. 1734. Common carries are responsible for the
loss, destruction, or deterioration of the goods, unless
the same is due to any of the following causes only:
(1) Flood, storm, earthquake, 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.1wph1.t
ART. 1735. In all cases other than those mentioned in
Nos. 1, 2, 3, 4 and 5 of the preceding article, 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
observed extraordinary diligence as required in Article
1733.
It having been clearly found by the trial court that the
transistor radio and the camera of the appellee were lost as a
result of the negligence of the appellant as a common carrier,
the liability of the appellant is clear it must pay the appellee
the value of those two articles.
In the case of Ysmael and Co. vs. Barreto, 51 Phil. 90, cited by
the trial court in support of its decision, this Court had laid
down the rule that the carrier can not limit its liability for injury
to or loss of goods shipped where such injury or loss was
caused by its own negligence.
Corpus Juris, volume 10, p. 154, says:
AGUSTINO
B.
ONG
YIU, petitioner,
vs.
HONORABLE COURT OF APPEALS and PHILIPPINE AIR LINES,
INC., respondents.
MELENCIO-HERRERA, J.:
In this Petition for Review by Certiorari, petitioner, a practicing
lawyer and businessman, seeks a reversal of the Decision of the
Court of Appeals in CA-G.R. No. 45005-R, which reduced his
claim for damages for breach of contract of transportation.
The facts are as follows:
On August 26, 1967, petitioner was a fare paying passenger of
respondent Philippine Air Lines, Inc. (PAL), on board Flight No.
463-R, from Mactan Cebu, bound for Butuan City. He was
scheduled to attend the trial of Civil Case No. 1005 and Spec.
Procs. No. 1125 in the Court of First Instance, Branch II,
thereat, set for hearing on August 28-31, 1967. As a passenger,
he checked in one piece of luggage, a blue "maleta" for which
he was issued Claim Check No. 2106-R (Exh. "A"). The plane left
Mactan Airport, Cebu, at about 1:00 o'clock P.M., and arrived
at Bancasi airport, Butuan City, at past 2:00 o'clock P.M., of the
same day. Upon arrival, petitioner claimed his luggage but it
could not be found. According to petitioner, it was only after
reacting indignantly to the loss that the matter was attended to
by the porter clerk, Maximo Gomez, which, however, the latter
denies, At about 3:00 o'clock P.M., PAL Butuan, sent a message
to PAL, Cebu, inquiring about the missing luggage, which
message was, in turn relayed in full to the Mactan Airport
teletype operator at 3:45 P.M. (Exh. "2") that same afternoon.
It must have been transmitted to Manila immediately, for at
3:59 that same afternoon, PAL Manila wired PAL Cebu advising
that the luggage had been over carried to Manila aboard Flight
No. 156 and that it would be forwarded to Cebu on Flight No.
345 of the same day. Instructions were also given that the
luggage be immediately forwarded to Butuan City on the first
available flight (Exh. "3"). At 5:00 P.M. of the same afternoon,
PAL Cebu sent a message to PAL Butuan that the luggage would
be forwarded on Fright No. 963 the following day, August 27,
196'(. However, this message was not received by PAL Butuan
as all the personnel had already left since there were no more
incoming flights that afternoon.
In the meantime, petitioner was worried about the missing
luggage because it contained vital documents needed for trial
the next day. At 10:00 o'clock that evening, petitioner wired
PAL Cebu demanding the delivery of his baggage before noon
the next day, otherwise, he would hold PAL liable for damages,
and stating that PAL's gross negligence had caused him undue
inconvenience, worry, anxiety and extreme embarrassment
(Exh. "B"). This telegram was received by the Cebu PAL
supervisor but the latter felt no need to wire petitioner that his
luggage had already been forwarded on the assumption that by
the time the message reached Butuan City, the luggage would
have arrived.
Early in the morning of the next day, August 27, 1967,
petitioner went to the Bancasi Airport to inquire about his
luggage. He did not wait, however, for the morning flight which
arrived at 10:00 o'clock that morning. This flight carried the
missing luggage. The porter clerk, Maximo Gomez, paged
I. THE HONORABLE
I COURT OF APPEALS
ERRED IN HOLDINGARESPONDENT PAL GUILTY
ONLY OF SIMPLE NEGLIGENCE
S
AND NOT BAD
FAITH IN THE BREACH OF ITS CONTRACT OF
TRANSPORTATION WITH
S
PETITIONER.
II. THE HONORABLE
.
COURT OF APPEALS
MISCONSTRUED THE EVIDENCE AND THE
LAW WHEN IT REVERSED
A
THE DECISION OF
THE LOWER COURT
G
AWARDING TO
PETITIONER MORAL
U DAMAGES IN THE
AMOUNT OF P80,000.00,
S
EXEMPLARY
DAMAGES OF P30,000.00,
T
AND P5,000.00
REPRESENTING ATTORNEY'S
I
FEES, AND
ORDERED
RESPONDENT
N
PAL
TO
COMPENSATE PLAINTIFF
B
THE SUM OF
P100.00 ONLY, CONTRARY
r
TO THE EXPLICIT
PROVISIONS OF ARTICLES
a
2220, 2229, 2232
AND 2234 OF THE
n CIVIL CODE OF THE
PHILIPPINES.
c
On July 16, 1975, this Court gave due hcourse to the Petition.
There is no dispute that PAL incurred in delay in the delivery of
petitioner's luggage. The questionS is the correctness of
respondent Court's conclusion that
u there was no gross
negligence on the part of PAL and
p that it had not acted
fraudulently or in bad faith as to entitle
e petitioner to an award
of moral and exemplary damages. r
From the facts of the case, we agree
v with respondent Court
that PAL had not acted in bad faith. iBad faith means a breach
2
of a known duty through some motive
s of interest or ill will. It
was the duty of PAL to look for petitioner's
o
luggage which had
been miscarried. PAL exerted due diligence
r
in complying with
such duty.
C
As aptly stated by the appellate Court:e
We do not find anyb evidence of bad faith in
this. On the contrary,
u
We find that the
defendant had exerted diligent effort to
locate plaintiff's baggage. The trial court saw
evidence of bad faith because PAL sent the
telegraphic message to Mactan only at 3:00
o'clock that same afternoon, despite
plaintiff's indignation for the non-arrival of his
baggage. The message was sent within less
than one hour after plaintiff's luggage could
not be located. Efforts had to be exerted to
locate plaintiff's maleta. Then the Bancasi
airport had to attend to other incoming
passengers and to the outgoing passengers.
Certainly, no evidence of bad faith can be
inferred from these facts. Cebu office
immediately wired Manila inquiring about the
missing baggage of the plaintiff. At 3:59 P.M.,
Manila station agent at the domestic airport
wired Cebu that the baggage was over carried
to Manila. And this message was received in
Cebu one minute thereafter, or at 4:00 P.M.
The baggage was in fact sent back to Cebu
City that same afternoon. His Honor stated
that the fact that the message was sent at
is equivalent to just
extending your hand out of
a running car at that speed.
Q. This weather condition
between October 28 and
November 1, 1980, will you
classify
this
as
extraordinary or ordinary?
A. It was ordinary.
Q. When you said ordinary,
was it usual or unusual?
A. It is usual.
Q. When you said it is usual
it is foreseeable and
predictable?
A. For an experienced
meteorologist like a ship
captain, it is foreseeable.
Q. When it is foreseeable,
necessarily it follows that
the weather could be
predicted based on the
weather bulletin or report?
A. Yes, sir.
Q. And usually the bulletin
states the condition in
other words, this weather
condition
which
you
testified to and reflected in
your Exhibit "7" is an
ordinary occurrence within
that area of Philippine
responsibility?
A. Yes, sir.
Q. And in fact this weather
condition
is
to
be
anticipated at that time of
the year with respect to
weather condition which is
reflected in Exhibit "7"?
A. It is a regular
occurrence.
xxx xxx xxx
Moreover, Capt. Racines
again admitted in Court
that his ill-fated vessel was
200 miles away from the
storm 'Yoning when it
sank. Said Capt. Racines:
Q. How far were you from
this depression or weather
disturbance on October 30,
1980?
A. Two hundred miles.
xxx xxx xxx
Q. In other words, this
depression was far from
your route because it took
a
northern
approach
whereas you were towards
the south approach?
A. As I have said, I was 200
miles away from the
disturbance.
xxx xxx xxx
Considering the foregoing reasons, the Court
holds that the vessel M/V "Aboitiz" and its
cargo were not lost due to fortuitous event
or force majeure.
In accordance with Article 1732 of the Civil
Code, the defendant common carrier, from
the nature of its business and for reasons of
public policy, is bound to observe
extraordinary diligence in the vigilance over
the goods and for the safety of the
passengers transported by it according to all
the circumstances of each case. While the
goods are in the possession of the carrier, it
is but fair that it exercise extra ordinary
diligence in protecting them from loss or
damage, and if its occurs the law presumes
that it was due to the carrier's fault or
negligence; that is necessary to protect the
interest of the shipper which is at the mercy
of the carrier (Article 1756, Civil Code;
Anuran vs. Puno, 17 SCRA 224; Nocum vs.
Laguna Tayabas Bus Co., 30 SCRA 69;
Landigan vs. Pangasinan Transportation
Company, 88 SCRA 284). In the case at bar,
the defendant failed to prove that the loss of
the subject cargo was not due to its fault or
8
negligence.
The said factual findings of the appellate court and the trial
court are finding on this Court. Its conclusion as to the
negligence of the petitioner is supported by the evidence.
The second issue raised to the effect that the liability of the
petitioner
should
be
fixed
at
US$500.00
per
package/container, as stipulated in the bill of lading and not
at the actual value of the cargo, should be resolved against
petitioner.
While it is true that in the bill of lading there is such
stipulation that the liability of the carrier is US$500.00 per
package/container/customary freight, there is an exception,
that is, when the nature and value of such goods have been
declared by the shipper before shipment and inserted in the
bill of lading. This is provided for in Section 4(5) of the
Carriage of Goods by Sea Act to wit
(5) Neither the carrier nor the ship shall in
any event be or become liable for any loss or
damage to or in connection with the
transportation of goods in an amount
exceeding $500 per package of lawful money
of the United States, or in case of goods not
shipped in packages, per customary freight
unit, or the equivalent of that sum in other
currency,unless the nature and value of such
under the circumstances, and has been fairly and freely agreed
15
upon.
The CONSIGNEE itself admits in its memorandum that the value
of the goods shipped does not appear in the bills of
16
lading. Hence, the stipulation on the carrier's limited liability
applies. There is no question that the stipulation is just and
reasonable under the circumstances and have been fairly and
freely agreed upon. In Sea-land Service, Inc.vs. Intermediate
17
Appellate Court, et al. we there explained what is a just and
reasonable, and a fair and free, stipulation, in this wise:
. . . That said stipulation is just and reasonable
arguable from the fact that it echoes Art.
1750 itself in providing a limit to liability only
if a greater value is not declared for the
shipment in the bill of lading. To hold
otherwise would amount to questioning the
justice and fairness of that law itself, and this
the private respondent does not pretend to
do. But over and above that consideration
the just and reasonable character of such
stipulation is implicit in it giving the shipper
or owner the option of avoiding accrual of
liability limitation by the simple and surely far
from onerous expedient of declaring the
nature and value of the shipment in the bill of
lading. And since the shipper here has not
been heard to complain of having been
"rushed," imposed upon or deceived in any
significant way into agreeing to ship the cargo
under a bill of lading carrying such a
stipulation in fact, it does not appear, that
said party has been heard from at all insofar
as this dispute is concerned there is simply
no ground for assuming that its agreement
thereto was not as the law would require,
freely and fairly sought and well.
The bill of lading shows that 120 cartons weigh 2,978 kilos or
24.82 kilos per carton. Since 90 cartons were lost and the
weight of said cartons is 2,233.80 kilos, at $2.00 per kilo the
CARRIER's liability amounts to only US$4,467.60.
WHEREFORE, the judgment of respondent court is hereby
MODIFIED and petitioner Citadel Lines, Inc. is ordered to pay
private respondent Manila Wine Merchants, Inc. the sum of
US$4,465.60. or its equivalent in Philippine currency at the
exchange rate obtaining at the time of payment thereof. In all
other respects, said judgment of respondent Court is
AFFIRMED.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.
FIRST DIVISION
[G.R. No. 71929 : December 4, 1990.]
192 SCRA 9
ALITALIA, Petitioner, vs. INTERMEDIATE APPELLATE COURT
and FELIPA E. PABLO, Respondents.
DECISION
NARVASA, J.:
Dr. Felipa Pablo an associate professor in the University of
the Philippines, 1 and a research grantee of the Philippine
Atomic Energy Agency was invited to take part at a meeting
of the Department of Research and Isotopes of the Joint FAOIAEA Division of Atomic Energy in Food and Agriculture of the
United Nations in Ispra, Italy. 2 She was invited in view of her
specialized knowledge in "foreign substances in food and the
agriculture environment." She accepted the invitation, and was
then scheduled by the organizers, to read a paper on "The Fate
of Radioactive Fusion Products Contaminating Vegetable
Crops." 3 The program announced that she would be the
second speaker on the first day of the meeting. 4 To fulfill this
engagement, Dr. Pablo booked passage on petitioner airline,
ALITALIA.
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 for any loss suffered and this Court
agrees that the respondent Court of Appeals correctly set the
amount thereof at P40,000.00. As to the purely technical
argument that the award to her of such nominal damages is
precluded by her omission to include a specific claim therefor
in her complaint, it suffices to draw attention to her general
prayer, following her plea for moral and exemplary damages
and attorney's fees, "for such other and further just and
equitable relief in the premises," which certainly is broad
enough to comprehend an application as well for nominal
damages. Besides, petitioner should have realized that the
explicit assertion, and proof, that Dr. Pablo's right had been
violated or invaded by it absent any claim for actual or
compensatory damages, the prayer thereof having been
voluntarily deleted by Dr. Pablo upon the return to her of her
baggage necessarily raised the issue of nominal damages.: rd
This Court also agrees that respondent Court of Appeals
correctly awarded attorney's fees to Dr. Pablo, and the amount
of P5,000.00 set by it is reasonable in the premises. The law
authorizes recovery of attorney's fees inter alia where, as here,
"the defendant's act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his
interest," 34 or "where the court deems it just and
equitable." 35
WHEREFORE, no error being perceived in the challenged
decision of the Court of Appeals, it appearing on the contrary
to be entirely in accord with the facts and the law, said decision
is hereby AFFIRMED, with costs against the petitioner.
SO ORDERED.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.
The Case
Before the Court is a Petition for Review on
[1]
Certiorari under Rule 45 of the Rules of Court, seeking to
[2]
reverse the August 7, 2001 Decision and the February 7, 2002
[3]
Resolution of the Court of Appeals (CA) in CA-GR CV No.
45832. The challenged Decision disposed as follows:
WHEREFORE, premises considered, the assailed Decision
dated July 5, 1991 of Branch 31, Regional Trial Court, National
Capital Judicial Region, Manila, in Civil Case No. 82-13690, is
hereby MODIFIED by deleting that portion regarding
defendants-appellants liabilities for the payment of the actual
damages amounting to HK$14,128.80 and US$2,000.00 while
all other respects are AFFIRMED. Costs against defendants[4]
appellants.
The assailed Resolution denied Petitioners Motion for
Partial Reconsideration.
The Facts
[5]
The facts are narrated by the CA as follows:
On September 18, 1981, Daniel Chiok (hereafter referred to as
Chiok) purchased from China Airlines, Ltd. (CAL for brevity)
airline passenger ticket number 297:4402:004:278:5 for air
transportation covering Manila-Taipei-Hongkong-Manila. Said
ticket was exclusively endorseable to Philippine Airlines, Ltd.
(PAL for brevity).
Subsequently, on November 21, 1981, Chiok took his trip from
Manila to Taipei using [the] CAL ticket. Before he left for said
trip, the trips covered by the ticket were pre-scheduled and
confirmed by the former. When he arrived in Taipei, he went
to the CAL office and confirmed his Hongkong to Manila trip on
board PAL Flight No. PR 311. The CAL office attached a yellow
sticker appropriately indicating that his flight status was OK.
When Chiok reached Hongkong, he went to the PAL office and
sought to reconfirm his flight back to Manila. The PAL office
confirmed his return trip on board Flight No. PR 311 and
attached its own sticker. On November 24, 1981, Chiok
proceeded to Hongkong International Airport for his return trip
to Manila. However, upon reaching the PAL counter, Chiok saw
a poster stating that PAL Flight No. PR 311 was cancelled
because of a typhoon in Manila. He was then informed that all
the confirmed ticket holders of PAL Flight No. PR 311 were
automatically booked for its next flight, which was to leave the
next day. He then informed PAL personnel that, being the
founding director of the Philippine Polysterene Paper
Corporation, he ha[d] to reach Manila on November 25, 1981
because of a business option which he ha[d] to execute on said
date.
On November 25, 1981, Chiok went to the airport. Cathay
Pacific stewardess Lok Chan (hereafter referred to as Lok) ha[d]
taken and received Chioks plane ticket and his luggage. Lok
called the attention of Carmen Chan (hereafter referred to as
Carmen), PALs terminal supervisor, and informed the latter
that Chioks name was not in the computer list of
passengers. Subsequently, Carmen informed Chiok that his
name did not appear in PALs computer list of passengers and
therefore could not be permitted to board PAL Flight No. PR
307.
Meanwhile, Chiok requested Carmen to put into writing the
alleged reason why he was not allowed to take his flight. The
2.
Time and time again, this Court has stressed that the
business of common carriers is imbued with public interest and
duty; therefore, the law governing them imposes an exacting
[34]
[35]
standard. In Singson v. Court of Appeals, we said:
x x x *T+he carrier's utter lack of care and sensitivity to the
needs of its passengers, clearly constitutive of gross negligence,
recklessness and wanton disregard of the rights of the latter,
[are] acts evidently indistinguishable or no different from fraud,
malice and bad faith. As the rule now stands, where in
breaching the contract of carriage the defendant airline is
shown to have acted fraudulently, with malice or in bad faith,
the award of moral and exemplary damages, in addition to
[36]
actual damages, is proper. (Italics supplied)
[37]
In Saludo v. Court of Appeals, the Court reminded
airline companies that due to the nature of their business, they
must not merely give cursory instructions to their personnel to
be more accommodating towards customers, passengers and
the general public; they must require them to be so.
The acts of PALs employees, particularly Chan, clearly fell
short of the extraordinary standard of care that the law
[38]
requires of common carriers.
As narrated in Chans oral
[39]
deposition, the manner in which the airline discharged its
responsibility to respondent and its other passengers
manifested a lack of the requisite diligence and due regard for
their welfare. The pertinent portions of the Oral Deposition are
reproduced as follows:
Q Now you said that flight PR 311 on 24th
November was cancelled due to [a] typhoon
and naturally the passengers on said flight had
to be accommodated on the first flight the
following
day
or
the
first
flight
subsequently. [W]ill you tell the Honorable
Deposition Officer the procedure followed by
Philippine Airlines in the handling of passengers
of cancelled flight[s] like that of PR 311 which
was cancelled due to [a] typhoon?
A The procedure will be: all the confirmed
passengers from [PR] 311 24th November [are]
automatically transfer[red] to [PR] 307, 25th
November[,] as a protection for all
disconfirmed passengers.
Q Aside from this procedure[,] what do you do
with the passengers on the cancelled flight who
are expected to check-in on the flights if this
flight is cancelled or not operating due to
typhoon or other reasons[?] In other words,
are they not notified of the cancellation?
A I think all these passengers were not notified
because of a typhoon and Philippine Airlines
Reservation were [sic] not able to call every
passenger by phone.
Atty. Fruto:
Q Did you say were not notified?
A I believe they were not, but believe me, I was on
day-off.
Atty. Calica:
record was already dead; and wherein appellant was the owner
of the trademark for more than thirty (30) years, and the
circumstances of the present case do not compare to the above
[6]
exceptional cases.
Section 1 of Rule 45 of the 1997 Rules of Civil
Procedure provides that "a party may appeal by certiorari, from
a judgment of the Court of Appeals, by filing with the Supreme
Court a petition for certiorari, within fifteen (15) days from
notice of judgment or of the denial of his motion for
reconsideration filed in due time x x x x" This Rule however
should not be interpreted as "to sacrifice the substantial right
of the appellant in the sophisticated altar of technicalities with
[7]
impairment of the sacred principles of justice." It should be
borne in mind that the real purpose behind the limitation of
the period of appeal is to forestall or avoid an unreasonable
delay in the administration of justice. Thus, we have ruled that
delay in the filing of a notice of appeal does not justify the
dismissal of the appeal where the circumstances of the case
show that there is no intent to delay the administration of
[8]
justice on the part of appellant's counsel, or when there are
[9]
no substantial rights affected, or when appellant's counsel
committed a mistake in the computation of the period of
[10]
appeal, an error not attributable to negligence or bad faith.
In the instant case, respondent filed his notice of appeal
two (2) days later than the prescribed period. Although his
counsel failed to give the reason for the delay, we are inclined
to give due course to his appeal due to the unique and peculiar
facts of the case and the serious question of law it poses. In
the now almost trite but still good principle, technicality, when
it deserts its proper office as an aid to justice and becomes its
great hindrance and chief enemy, deserves scant
[11]
consideration.
Petitioner likewise contends that the appellate court
erred in ruling that respondent's cause of action has not
prescribed since delegates to the Warsaw Convention clearly
intended the two (2)-year limitation incorporated in Art. 29 as
an absolute bar to suit and not to be made subject to the
various tolling provisions of the laws of the forum. Petitioner
argues that in construing the second paragraph of Art. 29
private respondent cannot read into it Philippine rules on
interruption of prescriptive periods and state that his
extrajudicial demand has interrupted the period of
[12]
prescription. American jurisprudence has declared that "Art.
29 (2) was not intended to permit forums to consider local
limitation tolling provisions but only to let local law determine
whether an action had been commenced within the two-year
period, since the method of commencing a suit varies from
[13]
country to country."
Within our jurisdiction we have held that the Warsaw
Convention can be applied, or ignored, depending on the
[14]
peculiar facts presented by each case. Thus, we have ruled
that the Convention's provisions do not regulate or exclude
liability for other breaches of contract by the carrier or
misconduct of its officers and employees, or for some
[15]
particular or exceptional type of damage. 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
[16]
The
name
is
Garry
37
Marcial."
The deposition of Alberto A. Lim, PAL's cargo supervisor at San
Francisco, as deponent-witness for PAL, makes this further
clarification:
ATTY.
CESAR
P.
MANALAYSAY:
You mentioned Airway Bill,
Mr. Lim. I am showing to
you a PAL Airway Bill
Number 01180454 which
for purposes of evidence, I
would like to request that
the same be marked as
evidence Exhibit I for PAL.
xxx xxx xxx
In what circumstances did
you encounter Exhibit IPAL?
ALBERTO A. LIM:
If I recall correctly, I was
queried by Manila, our
Manila office with regard to
a certain complaint that a
consignee filed that this
shipment did not arrive on
the day that the consignee
expects the shipment to
arrive.
ATTY
CESAR
P.
MANALAYSAY:
Okay. Now, upon receipt of
that query from your
Manila office, did you
conduct any investigation to
pinpoint the possible causes
of mishandling?
ALBERTO A. LIM:
Yes.
xxx xxx xxx
ATTY.
CESAR
P.
MANALAYSAY:
What is the result of your
investigation?
ALBERTO A. LIM:
In the course of my
investigation, I found that
we received the body on
October 28, 1976, from
American Airlines.
ATTY.
CESAR
P.
MANALAYSAY:
What body are you
referring to?
xxx xxx xxx
ALBERTO A. LIM:
The remains of Mrs. Cristina
(sic) Saludo.
ATTY.
CESAR
P.
MANALAYSAY:
Is that the same body
mentioned in this Airway
Bill?
ALBERTO A. LIM:
Yes.
ATTY.
CESAR
P.
MANALAYSAY:
What time did you receive
said body on October 28,
1976?
ALBERTO A. LIM:
If
I
recall
correctly,
approximately
7:45
of
October 28, 1976.
ATTY.
CESAR
P.
MANALAYSAY:
Do you have any proof with
you to back the statement?
ALBERTO A. LIM:
Yes. We have on our
records a Transfer Manifest
from American Airlines
Number 204312 showing
that we received a human
remains shipment belong to
Mrs. Cristina (sic) Saludo or
the human remains of Mrs.
Cristina (sic) Saludo.
ATTY.
CESAR
P.
MAIALAYSAY:
At this juncture, may I
request that the Transfer
Manifest referred to by the
witness be marked as an
evidence as Exhibit II-PAL.
xxx xxx xxx
Mr. Lim, yesterday your codefendant TWA presented
as their Exhibit I evidence
tending to show that on
October 27, 1976 at about
2:00 in the, afternoon they
delivered to you a cargo
bearing human remains.
Could you go over this
Exhibit I and please give us
your comments as to that
exhibit?
ATTY.
ALBERTO
C.
MENDOZA:
That is a vague question. I
would rather request that
counsel propound specific
questions
rather
than
asking for comments on
Exhibit I-TWA.
ATTY.
CESAR
P.
MANALAYSAY:
In that case, I will reform
my question. Could you tell
us whether TWA in fact
delivered to you the human
remains as indicated in that
Transfer Manifest?
ALBERTO A. LIM:
Yes, they did.
ATTY.
CESAR
P.
MANALAYSAY:
I noticed that the Transfer
Manifest of TWA marked as
Exhibit I-TWA bears the
same numbers or the same
entries as the Airway Bill
marked as Exhibit I-A PAL
tending to show that this is
the human remains of Mrs
Cristina (sic) Saludo. Could
you tell us whether this is
true?
ALBERTO A. LIM:
It is true that we received
human remains shipment
from TWA as indicated on
this Transfer Manifest. But
in
the
course
of
investigation, it was found
out that the human remains
transferred to us is not the
remains of Mrs. Cristina
(sic) Saludo this is the
reason why we did not
38
board it on our flight.
Petitioners consider TWA's statement that "it had to rely on the
information furnished by the shipper" a lame excuse and that
its failure to prove that its personnel verified and identified the
contents of the casket before loading the same constituted
39
negligence on the part of TWA.
We upbold the favorable consideration by the Court of Appeals
of the following findings of the trial court:
It was not (to) TWA, but to C.M.A.S. that the
Pomierski & Son Funeral Home delivered the
casket containing the remains of Crispina
Saludo. TWA would have no knowledge
therefore that the remains of Crispina Saludo
were not the ones inside the casket that was
being presented to it for shipment. TWA
would have to rely on there presentations of
C.M.A.S. The casket was hermetically sealed
and also sealed by the Philippine Vice Consul
in Chicago. TWA or any airline for that matter
would not have opened such a sealed casket
just for the purpose of ascertaining whose
body was inside and to make sure that the
remains inside were those of the particular