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[G.R. No. 101538. June 23, 1992.]
AUGUSTO BENEDICTO SANTOS III, represented by his father and
legal guardian, Augusto Benedicto Santos, petitioner, vs.
NORTHWEST ORIENT AIRLINES and COURT OF APPEALS,
respondents.
DECISION
CRUZ, J p:
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 waitlisted.
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 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
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: cdrep
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 . . .
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 he 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 Conventio'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 not 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," is 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 . . .
xxx
xxx
xxx
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(1) of the Convention, which reads as
follows:
Article 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 which 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.
A.
special contract, the carrier and the passenger may agree to a higher limit
of liability. LLjur
2.
a)
In the carriage of registered baggage and of cargo, the
liability of the carrier is limited to a sum of 250 francs per kilogramme,
unless the passenger or consignor has made, at the time when the
package was handed over to the carrier, a special declaration of interest in
delivery at destination and has paid a supplementary sum if the case so
requires. In that case the carrier will be liable to pay a sum not exceeding
the declared sum, unless he proves that sum is greater than the actual
value to the consignor at delivery.
b)
In the case of loss, damage or delay of part of registered baggage
or cargo, or of any object contained therein, the weight to be taken into
consideration in determining the amount to which the carrier's liability is
limited shall be only the total weight of the package or packages
concerned. Nevertheless, when the loss, damage or delay of a part of the
registered baggage or cargo, or of an object contained therein, affects the
value of other packages covered by the same baggage check or the same
air way bill, the total weight of such package or packages shall also be
taken into consideration in determining the limit of liability.
3.
As regards objects of which the passenger takes charge himself the
liability of the carrier is limited to 5000 francs per passenger.
4.
The limits prescribed . . shall not prevent the court from awarding,
in accordance with its own law, in addition, the whole or part of the court
costs and of the other expenses of litigation incurred by the plaintiff. The
foregoing provision shall not apply if the amount of the damages awarded,
excluding court costs and other expenses of the litigation, does not exceed
the sum which the carrier has offered in writing to the plaintiff within a
period of six months from the date of the occurrence causing the damage,
or before the commencement of the action, if that is later.
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 . . by any agent of the
carrier acting within the scope of his employment." 22 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, 23 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. 24
been voluntarily deleted by Dr. Pablo upon the return to her of her baggage
necessarily raised the issue of nominal damages. cdrep
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.
DECISION
CORTES, J p:
be applicable and the Convention governs and in most cases limits the
liability of carriers for death or personal injury and in respect of loss of or
damage to baggage. See also notice headed "Advice to International
Passengers on Limitation of Liability."
CONDITIONS OF CONTRACT
1.
As used in this contract "ticket" means this passenger ticket and
baggage check of which these conditions and the notices form part,
"carriage" is equivalent to "transportation," "carrier" means all air carriers
that carry or undertake to carry the passenger or his baggage hereunder or
perform any other service incidental to such air carriage. "WARSAW
CONVENTION" means the convention for the Unification of Certain Rules
Relating to International Carriage by Air signed at Warsaw, 12th October
1929, or that Convention as amended at The Hague, 28th September
1955, whichever may be applicable.
2.
Carriage hereunder is subject to the rules and limitations relating
to liability established by the Warsaw Convention unless such carriage is
not "international carriage" as defined by that Convention.
3.
To the extent not in conflict with the foregoing carriage and other
services performed by each carrier are subject to: (i) provisions contained
in this ticket, (ii) applicable tariffs, (iii) carrier's conditions of carriage and
related regulations which are made part hereof (and are available on
application at the offices of carrier), except in transportation between a
place in the United States or Canada and any place outside thereof to
which tariffs in force in those countries apply.
xxx
xxx
xxx
NOTICE OF BAGGAGE LIABILITY LIMITATIONS
Liability for loss, delay, or damage to baggage is limited as follows unless a
higher value is declared in advance and additional charges are paid: (1) for
most international travel (including domestic portions of international
journeys) to approximately $9.70 per pound ($20.00 per kilo) for checked
baggage and $400 per passenger for unchecked baggage: (2) for travel
wholly between U.S. points, to $750 per passenger on most carriers (a few
have lower limits). Excess valuation may not be declared on certain types
of valuable articles. Carriers assume no liability for fragile or perishable
articles further information may be obtained from the carrier. [Emphasis
supplied.].
On the basis of the foregoing stipulations printed at the back of the ticket,
petitioner contends that its liability for the lost baggage of private
respondent Pangan is limited to $600.00 ($20.00 x 30 kilos) as the latter
did not declare a higher value for his baggage and pay the corresponding
additional charges.
To support this contention, petitioner cites the case of Ong Yiu v. Court of
Appeals [G.R. No. L-40597, June 29, 1979, 91 SCRA 223), where the Court
sustained the validity of a printed stipulation at the back of an airline ticket
limiting the liability of the carrier for lost baggage to a specified amount
and ruled that the carrier's liability was limited to said amount since the
passenger did not declare a higher value, much less pay additional
charges.
We find the ruling in Ong Yiu squarely applicable to the instant case. In said
case, the Court, through Justice Melencio-Herrera, stated:
SCRA 1063] to sustain the view that "to apply the Warsaw Convention
which limits a carrier's liability to US$9.07 per pound or US$20.00 per kilo
in cases of contractual breach of carriage ** is against public policy" is
utterly misplaced, to say the least. In said case, while the Court, as quoted
in the Intermediate Appellate Court's decision, said:
Petitioner argues that pursuant to those provisions, an air "carrier is liable
only" in the event of death of a passenger or injury suffered by him, or of
destruction or loss of, or damages to any checked baggage or any goods,
or of delay in the transportation by air of passengers, baggage or goods.
This pretense is not borne out by the language of said Articles. The same
merely declare the carrier liable for damages in enumerated cases, if the
conditions therein specified are present. Neither said provisions nor others
in the aforementioned Convention regulate or exclude liability for other
breaches of contract by the carrier. Under petitioner's theory, 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.
it prefaced this statement by explaining that:
. . . The case is now before us on petition for review by certiorari, upon the
ground that the lower court has erred: (1) in holding that the Warsaw
Convention of October 12, 1929, relative to transportation by air is not in
force in the Philippines: (2) in not holding that respondent has no cause of
action; and (3) in awarding P20,000 as nominal damages.
We deem it unnecessary to pass upon the first assignment of error because
the same is the basis of the second assignment of error, and the latter is
devoid of merit, even if we assumed the former to be well-taken.
(Emphasis supplied.)
Thus, it is quite clear that the Court never intended to, and in fact never
did, rule against the validity of provisions of the Warsaw Convention.
Consequently, by no stretch of the imagination may said quotation from
Northwest be considered as supportive of the appellate court's statement
that the provisions of the Warsaw Convention limited a carrier's liability are
against public policy.
2.
The Court finds itself unable to agree with the decision of the trial
court, and affirmed by the Court of Appeals, awarding private respondents
damages as and for lost profits when their contracts to show the films in
Guam and San Francisco, California were cancelled.
The rule laid down in Mendoza v. Philippine Air Lines, Inc. [90 Phil. 836
(1952)] cannot be any clearer:
. . . Under Art. 1107 of the Civil Code, a debtor in good faith like the
defendant herein, may be held liable only for damages that were foreseen
or might have been foreseen at the time the contract of transportation was
entered into. The trial court correctly found that the defendant company
could not have foreseen the damages that would be suffered by Mendoza
upon failure to deliver the can of film on the 17th of September, 1948 for
the reason that the plans of Mendoza to exhibit that film during the town
fiesta and his preparations, specially the announcement of said exhibition
by posters and advertisement in the newspaper, were not called to the
defendant's attention.
In our research for authorities we have found a case very similar to the one
under consideration. In the case of Chapman vs. Fargo, L.R.A. (1918 F) p.
1049, the plaintiff in Troy, New York, delivered motion picture films to the
(12%) percent per annum from February 15, 1980 when the complaint was
filed until fully paid.
Correspondingly, defendant's counterclaim is dismissed.
Costs against the defendant.
SO ORDERED."
GANCAYCO, J p:
Rogelio A. Vinluan is a practicing lawyer who had to travel in April, 1979 to
several cities in Europe and the U.S. to attend to some matters involving
several clients. He entered into a contract for air carriage for valuable
consideration with Japan Airlines first class from Manila to Tokyo, Moscow,
Paris, Hamburg, Zurich, New York, Los Angeles, Honolulu and back to
Manila thru the same airline and other airlines it represents for which he
was issued the corresponding first class tickets for the entire trip.
On April 18, 1979, while in Paris, he went to the office of Trans World
Airlines (TWA) at the De Gaulle Airport and secured therefrom confirmed
reservation for first class accommodation on board its Flight No. 41 from
New York to San Francisco which was scheduled to depart on April 20,
1979. A validated stub was attached to the New York-Los Angeles portion
of his ticket evidencing his confirmed reservation for said flight with the
mark "OK." 1 On April 20, 1979, at about 8:00 o'clock A.M., Vinluan
reconfirmed his reservation for first class accommodation on board TWA
Flight No. 41 with its New York office. He was advised that his reservation
was confirmed. He was even requested to indicate his seat preference on
said flight on said scheduled date of departure of TWA Flight No. 41.
Vinluan presented his ticket for check-in at the counter of TWA at JFK
International Airport at about 9:45 o'clock A.M., the scheduled time of the
departure being 11:00 o'clock A.M. He was informed that there was no first
class seat available for him on the flight. He asked for an explanation but
TWA employees on duty declined to give any reason. When he began to
protest, one of the TWA employees, a certain Mr. Braam, rudely threatened
him with the words "Don't argue with me, I have a very bad temper."
To be able to keep his schedule, Vinluan was compelled to take the
economy seat offered to him and he was issued a "refund application" as
he was downgraded from first class to economy class.
While waiting for the departure of Flight No. 41, Vinluan noticed that other
passengers who were white Caucasians and who had checked-in later than
him were given preference in some first class seats which became
available due to "no show" passengers.
On February 15, 1980, Vinluan filed an action for damages against the TWA
in the Court of First Instance of Rizal alleging breach of contract and bad
faith. After trial on the merits, a decision was rendered the dispositive part
of which reads as follows:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendant holding the latter liable to the former for the amount
representing the difference in fare between first class and economy class
accommodations on board Flight No. 6041 from New York to San Francisco,
the amount of P500,000.00 as moral damages, the amount of P300,000.00
as exemplary damages and the amount of P100,000.00 as and for
attorney's fees, all such amounts to earn interest at the rate of twelve
Not satisfied therewith, the TWA appealed to the Court of Appeals wherein
in due course a decision was rendered on May 27, 1987, 2 the dispositive
part of which reads as follows:
"WHEREFORE, the decision dated March 8, 1984 is hereby modified by (1)
fixing the interest which appellant must pay on the awards of moral and
exemplary damages at six per cent (6%) per annum from the date of the
decision a quo, March 8, 1984 until date of full payment and (2) reducing
the attorney's fees to P50,000.00 without interest, the rest of the decision
is affirmed. Costs against appellant.
SO ORDERED."
Hence, the herein petition for review.
The theory of the petitioner is that because of maintenance problems of
the aircraft on the day of the flight, TWA Flight No. 41 was cancelled and a
special Flight No. 6041 was organized to operate in lieu of Flight No. 41. 3
Flight No. 41 was to have utilized a Lockheed 1011 with 34 first class seats,
but instead, a smaller Boeing 707 with only 16 first class seats was
substituted for use in Flight No. 6041. Hence, passengers who had first
class reservations on Flight No. 41 had to be accommodated on Flight No.
6041 on a first-come, first-served basis. An announcement was allegedly
made to all passengers in the entire terminal of the airport advising them
to get boarding cards for Flight No. 6041 to San Francisco and that the first
ones getting them would get first preference as to seats in the aircraft. It
denied declining to give any explanation for the downgrading of private
respondent as well as the discourteous attitude of Mr. Braam.
On the other hand, private respondent asserts that he did not hear such
announcement at the terminal and that he was among the early
passengers to present his ticket for check-in only to be informed that there
was no first class seat available for him and that he had to be downgraded.
The petitioner contends that the respondent Court of Appeals committed a
grave abuse of discretion in finding that petitioner acted maliciously and
discriminatorily, and in granting excessive moral and exemplary damages
and attorney's fees.
The contention is devoid of merit. Private respondent had a first class
ticket for Flight No. 41 of petitioner from New York to San Francisco on April
20, 1979. It was twice confirmed and yet respondent unceremoniously told
him that there was no first class seat available for him and that he had to
be downgraded to the economy class. As he protested, he was arrogantly
threatened by one Mr. Braam. Worst still, while he was waiting for the
flight, he saw that several Caucasians who arrived much later were
accommodated in first class seats when the other passengers did not show
up.
The discrimination is obvious and the humiliation to which private
respondent was subjected is undeniable. Consequently, the award of moral
and exemplary damages by the respondent court is in order. 4
Indeed, private respondent had shown that the alleged switch of planes
from a Lockheed 1011 to a smaller Boeing 707 was because there were
only 138 confirmed economy class passengers who could very well be
accommodated in the smaller plane and not because of maintenance
problems.
Petitioner sacrificed the comfort of its first class passengers including
private respondent Vinluan for the sake of economy. Such inattention and
lack of care for the interest of its passengers who are entitled to its utmost
consideration, particularly as to their convenience, amount to bad faith
which entitles the passenger to the award of moral damages. 5 More so in
this case where instead of courteously informing private respondent of his
being downgraded under the circumstances, he was angrily rebuffed by an
employee of petitioner.
At the time of this unfortunate incident, the private respondent was a
practicing lawyer, a senior partner of a big law firm in Manila. He was a
director of several companies and was active in civic and social
organizations in the Philippines. Considering the circumstances of this case
and the social standing of private respondent in the community, he is
entitled to the award of moral and exemplary damages. However, the
moral damages should be reduced to P300,000.00, and the exemplary
damages should be reduced to P200,000.00. This award should be
reasonably sufficient to indemnify private respondent for the humiliation
and embarrassment that he suffered and to serve as an example to
discourage the repetition of similar oppressive and discriminatory acts.
WHEREFORE, with the above modification reducing the moral and
exemplary damages as above-stated, the decision subject of the petition
for review is AFFIRMED in all other respects, without pronouncement as to
costs in this instance.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.
petitioners suffered some special specie of injury for which they should
rightly be compensated. Private respondent cannot be allowed to escape
liability be seeking refuge in the argument that the trial courts' orders have
attained finality due to petitioners' failure to move for reconsideration or to
file a timely appeal therefrom. Technicalities should be disregarded if only
to render to the respective parties that which is their due.
2.
ID.; SPECIAL CIVIL ACTION; CERTIORARI; GENERALLY, NOT A
SUBSTITUTE FOR APPEAL; EXCEPTIONS. Although We have said that
certiorari cannot be a substitute for a lapsed appeal, We have, time and
again, likewise held that where a rigid application of that rule will result in
a manifest failure or miscarriage of justice, the rule may be relaxed. Hence,
considering the broader and primordial interests of justice, particularly
when there is grave abuse of discretion, thus impelling occasional
departure from the general rule that the extraordinary writ of certiorari
cannot substitute for a lost appeal, respondent appellate court may legally
entertain the special civil action for certiorari.
3.
ID.; ACTIONS; WARSAW CONVENTION; A TREATY COMMITMENT
WHICH DOES NOT OPERATE AS AN EXCLUSIVE ENUMERATION OF GROUNDS
NOR LIMITATION OF LIABILITY FOR BREACH OF CONTRACT OF CARRIAGE.
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, We are also aware of jurisprudence
that 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.
4.
ID.; ID.; ID.; ID.; CASE AT BAR. Hence, petitioners' alleged failure
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 private respondent 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 petitioners indeed filed a
claim which private respondent admitted having received on 21 June 1989,
their demand may have very well filed within the period prescribed by
those applicable laws. Consequently, respondent trial courts, as well as
respondent appellate court, were in error when they limited themselves to
the provisions of the Warsaw Convention and disregarding completely the
provisions of the Civil Code.
5.
CIVIL LAW; OBLIGATIONS AND CONTRACTS; CONTRACT OF
CARRIAGE; BREACH OF CONTRACT FOR FAILURE TO DELIVER CARGO; MUST
BE INTENTIONAL TO RECOVER DAMAGES; FAILURE IN CASE AT BAR, NOT
INTENTIONAL. We are not prepared to subscribe to petitioners' argument
that the failure of private respondent to deliver their luggage at the
designated time and place amounted ipso facto to willful misconduct. for
willful misconduct to exist, there must be a showing that the acts
a lapsed appeal, We have, time and again, likewise held that where a rigid
application of that rule will result in a manifest failure or miscarriage of
justice, the rule may be relaxed. 13 Hence, considering the broader and
primordial interests of justice, particularly when there is grave abuse of
discretion, thus impelling occasional departure from the general rule that
the extraordinary writ of certiorari cannot substitute for a lost appeal,
respondent appellate court may legally entertain the special civil action for
certiorari. 14
Previously, We ruled that 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. 15 But, in the same token, We are
also aware of jurisprudence that 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. 16 The Convention merely declares the carrier liable for
damages in the enumerated cases, if the conditions therein specified are
present. 17 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, 18 We
awarded Dr. Felipa Pablo nominal damages, the provisions of the
Convention notwithstanding.
Hence, petitioners' alleged failure 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 private
respondent 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 petitioners indeed filed a claim which private respondent admitted
having received on 21 June 1989, their demand may have very well been
filed within the period prescribed by those applicable laws. Consequently,
respondent trial courts, as well as respondent appellate court, were in error
when they limited themselves to the provisions of the Warsaw Convention
and disregarding completely the provisions of the Civil Code. cdphil
We are unable to agree however with petitioners that Art. 25 of the
Convention operates to exclude the other provisions of the Convention
operates to exclude the other provisions of the Convention if damage is
caused by the common carrier's willful misconduct. As correctly pointed
out by private respondent, Art. 25 refers only to the monetary ceiling on
damages found in Art. 22 should damage be caused by carrier's willful
misconduct. Hence, only the provisions of Art. 22 limiting the carrier's
liability and imposing a monetary ceiling in case of willful misconduct on its
part that the carrier cannot invoke. 19 This issue however has become
academic in the light of our ruling that the trial courts erred in dismissing
petitioners' respective complaints.
We are not prepared to subscribe to petitioners' argument that the failure
of private respondent to deliver their luggage at the designated time and
place amounted ipso facto to willful misconduct. For willful misconduct to
exist, there must be a showing that the acts complained of were impelled
by an intention to violate the law, or were in persistent disregard of one's
On May 16, 2005, summons, together with a copy of the complaint, was
served on the respondent through Violeta Echevarria, General Manager of
Euro-Philippine Airline Services, Inc.3
On May 30, 2005, respondent, by way of special appearance through
counsel, filed a Motion to Dismiss 4 on grounds of lack of jurisdiction over
the case and over the person of the respondent. Respondent alleged that
only the courts of London, United Kingdom or Rome, Italy, have jurisdiction
over the complaint for damages pursuant to the Warsaw Convention, 5
Article 28(1) of which provides:
An action for damages must be brought at the option of the plaintiff, either
before the court of domicile of the carrier or his principal place of business,
or where he has a place of business through which the contract has been
made, or before the court of the place of destination.
Thus, since a) respondent is domiciled in London; b) respondents principal
place of business is in London; c) petitioner bought her ticket in Italy
(through Jeepney Travel S.A.S, in Rome); 6 and d) Rome, Italy is petitioners
place of destination, then it follows that the complaint should only be filed
in the proper courts of London, United Kingdom or Rome, Italy.
Likewise, it was alleged that the case must be dismissed for lack of
jurisdiction over the person of the respondent because the summons was
erroneously served on Euro-Philippine Airline Services, Inc. which is not its
resident agent in the Philippines.
On June 3, 2005, the trial court issued an Order requiring herein petitioner
to file her Comment/Opposition on the Motion to Dismiss within 10 days
from notice thereof, and for respondent to file a Reply thereon. 7 Instead of
filing a Comment/Opposition, petitioner filed on June 27, 2005, an Urgent
Ex-Parte Motion to Admit Formal Amendment to the Complaint and
Issuance of Alias Summons. 8 Petitioner alleged that upon verification with
the Securities and Exchange Commission, she found out that the resident
agent of respondent in the Philippines is Alonzo Q. Ancheta. Subsequently,
on September 9, 2005, petitioner filed a Motion to Resolve Pending
Incident and Opposition to Motion to Dismiss.9
Ruling of the Regional Trial Court
On October 14, 2005, the RTC of Makati City, Branch 132, issued an Order 10
granting respondents Motion to Dismiss. It ruled that:
The Court sympathizes with the alleged ill-treatment suffered by the
plaintiff. However, our Courts have to apply the principles of international
law, and are bound by treaty stipulations entered into by the Philippines
which form part of the law of the land. One of this is the Warsaw
Convention. Being a signatory thereto, the Philippines adheres to its
stipulations and is bound by its provisions including the place where
actions involving damages to plaintiff is to be instituted, as provided for
under Article 28(1) thereof. The Court finds no justifiable reason to deviate
from the indicated limitations as it will only run counter to the provisions of
Our Ruling
The petition is without merit.
The Warsaw Convention has the force and effect of law in this country.
It is settled that the Warsaw Convention has the force and effect of law in
this country. In Santos III v. Northwest Orient Airlines,12 we held 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. 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."
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.13
The Warsaw Convention applies because the air travel, where the alleged
tortious conduct occurred, was between the United Kingdom and Italy,
which are both signatories to the Warsaw Convention.
Article 1 of the Warsaw Convention provides:
1. This Convention applies to all international carriage of persons, luggage
or goods performed by aircraft for reward. It applies equally to gratuitous
carriage by aircraft performed by an air transport undertaking.
2. For the purposes of this Convention the expression "international
carriage" means any carriage 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 carriage or a transhipment, are situated either
within the territories of two High Contracting Parties, or within the territory
of a single High Contracting Party, if there is an agreed stopping place
within a territory subject to the sovereignty, suzerainty, mandate or
authority of another Power, even though that Power is not a party to this
Convention. A carriage without such an agreed stopping place between
territories subject to the sovereignty, suzerainty, mandate or authority of
the same High Contracting Party is not deemed to be international for the
purposes of this Convention. (Emphasis supplied)
Thus, when the place of departure and the place of destination in a
contract of carriage are situated within the territories of two High
Contracting Parties, said carriage is deemed an "international carriage".
The High Contracting Parties referred to herein were the signatories to the
Warsaw Convention and those which subsequently adhered to it. 14
granted the motion which ruling was affirmed by the Court of Appeals.
When the case was brought before us, we denied the petition holding that
under Article 28(1) of the Warsaw Convention, Augusto Santos III must
prosecute his claim in the United States, that place being the (1) domicile
of the Northwest Orient Airlines; (2) principal office of the carrier; (3) place
where contract had been made (San Francisco); and (4) place of
destination (San Francisco).21
We further held that Article 28(1) of the Warsaw Convention is jurisdictional
in character. Thus:
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.
xxxx
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.22
Contrary to the contention of petitioner, Santos III v. Northwest Orient
Airlines23 is analogous to the instant case because (1) the domicile of
respondent is London, United Kingdom;24 (2) the principal office of
respondent airline is likewise in London, United Kingdom; 25 (3) the ticket
was purchased in Rome, Italy;26 and (4) the place of destination is Rome,
Italy.27 In addition, petitioner based her complaint on Article 2176 28 of the
Civil Code on quasi-delict and Articles 1929 and 2130 of the Civil Code on
Human Relations. In Santos III v. Northwest Orient Airlines, 31 Augusto
Santos III similarly posited that Article 28 (1) of the Warsaw Convention did
not apply if the action is based on tort. Hence, contrary to the contention
of the petitioner, the factual setting of Santos III v. Northwest Orient
Airlines32 and the instant case are parallel on the material points.
Tortious conduct as ground for the petitioners complaint is within the
Forfeiture II: (a) motion to dismiss and/or to quash Forfeiture II; and (b)
motion for partial reconsideration.
The foregoing pleadings, particularly the motions to dismiss, were filed by
petitioner solely for special appearance with the purpose of challenging the
jurisdiction of the SB over her person and that of her three children.
Petitioner asserts therein that SB did not acquire jurisdiction over her
person and of her three children for lack of valid service of summons
through improvident substituted service of summons in both Forfeiture I
and Forfeiture II. This stance the petitioner never abandoned when she
filed her motions for reconsideration, even with a prayer to admit their
attached Answer Ex Abundante Ad Cautelam dated January 22, 2005
setting forth affirmative defenses with a claim for damages. And the other
subsequent pleadings, likewise, did not abandon her stance and defense of
lack of jurisdiction due to improper substituted services of summons in the
forfeiture cases. Evidently, from the foregoing Sec. 20, Rule 14 of the 1997
Revised Rules on Civil Procedure, petitioner and her sons did not voluntarily
appear before the SB constitutive of or equivalent to service of summons.
Moreover, the leading La Naval Drug Corp. v. Court of Appeals applies to
the instant case. Said case elucidates the current view in our jurisdiction
that a special appearance before the courtchallenging its jurisdiction
over the person through a motion to dismiss even if the movant invokes
other groundsis not tantamount to estoppel or a waiver by the movant of
his objection to jurisdiction over his person; and such is not constitutive of
a voluntary submission to the jurisdiction of the court.1avvphi1
Thus, it cannot be said that petitioner and her three children voluntarily
appeared before the SB to cure the defective substituted services of
summons. They are, therefore, not estopped from questioning the
jurisdiction of the SB over their persons nor are they deemed to have
waived such defense of lack of jurisdiction. Consequently, there being no
valid substituted services of summons made, the SB did not acquire
jurisdiction over the persons of petitioner and her children. And perforce,
the proceedings in the subject forfeiture cases, insofar as petitioner and
her three children are concerned, are null and void for lack of jurisdiction.
(Emphasis supplied)
In this case, the special appearance of the counsel of respondent in filing
the Motion to Dismiss and other pleadings before the trial court cannot be
deemed to be voluntary submission to the jurisdiction of the said trial
court. We hence disagree with the contention of the petitioner and rule
that there was no voluntary appearance before the trial court that could
constitute estoppel or a waiver of respondents objection to jurisdiction
over its person.
WHEREFORE, the petition is DENIED. The October 14, 2005 Order of the
Regional Trial Court of Makati City, Branch 132, dismissing the complaint
for lack of jurisdiction, is AFFIRMED.
SO ORDERED
without PALs endorsement, PAL would not pay Singapore Airlines for their
passage. Private respondent tried to contact PALs office at the airport,
only to find out that it was closed.5
Stranded at the airport in Singapore and left with no recourse, private
respondent was in panic and at a loss where to go; and was subjected to
humiliation, embarrassment, mental anguish, serious anxiety, fear and
distress. Eventually, private respondent and his companions were forced to
purchase tickets from Garuda Airlines and board its last flight bound for
Jakarta. When they arrived in Jakarta at about 12:00 oclock midnight, the
party who was supposed to fetch them from the airport had already left
and they had to arrange for their transportation to the hotel at a very late
hour. After the series of nerve-wracking experiences, private respondent
became ill and was unable to participate in the tournament. 6
Upon his return to the Philippines, private respondent brought the matter
to the attention of PAL. He sent a demand letter to PAL on 20 December
1993 and another to Singapore Airlines on 21 March 1994. However, both
airlines disowned liability and blamed each other for the fiasco. On 15
August 1997, private respondent filed a Complaint for Damages before the
RTC docketed as Civil Case No. 23773, seeking compensation for moral
damages in the amount of P1,000,000.00 and attorneys fees.7
Instead of filing an answer to private respondents Complaint, PAL filed a
Motion to Dismiss8 dated 18 September 1998 on the ground that the said
complaint was barred on the ground of prescription under Section 1(f) of
Rule 16 of the Rules of Court.9 PAL argued that the Warsaw Convention, 10
particularly Article 29 thereof,11 governed this case, as it provides that any
claim for damages in connection with the international transportation of
persons is subject to the prescription period of two years. Since the
Complaint was filed on 15 August 1997, more than three years after PAL
received the demand letter on 25 January 1994, it was already barred by
prescription.
On 9 June 1998, the RTC issued an Order 12 denying the Motion to Dismiss.
It maintained that the provisions of the Civil Code and other pertinent laws
of the Philippines, not the Warsaw Convention, were applicable to the
present case.
The Court of Appeals, in its assailed Decision dated 17 August 2001,
likewise dismissed the Petition for Certiorari filed by PAL and affirmed the 9
June 1998 Order of the RTC. It pronounced that the application of the
Warsaw Convention must not be construed to preclude the application of
the Civil Code and other pertinent laws. By applying Article 1144 of the
Civil Code,13 which allowed for a ten-year prescription period, the appellate
court declared that the Complaint filed by private respondent should not
be dismissed.14
Hence, the present Petition, in which petitioner raises the following issues:
I
United States also recognizes that the Warsaw Convention does not
"exclusively regulate" the relationship between passenger and carrier on
an international flight. This Court finds that the present case is
substantially similar to cases in which the damages sought were
considered to be outside the coverage of the Warsaw Convention.
In United Airlines v. Uy,18 this Court distinguished between the (1) damage
to the passengers baggage and (2) humiliation he suffered at the hands of
the airlines employees. The first cause of action was covered by the
Warsaw Convention which prescribes in two years, while the second was
covered by the provisions of the Civil Code on torts, which prescribes in
four years.
Similar distinctions were made in American jurisprudence. In Mahaney v.
Air France,19 a passenger was denied access to an airline flight between
New York and Mexico, despite the fact that she held a confirmed
reservation. The court therein ruled that if the plaintiff were to claim
damages based solely on the delay she experienced for instance, the
costs of renting a van, which she had to arrange on her own as a
consequence of the delay the complaint would be barred by the two-year
statute of limitations. However, where the plaintiff alleged that the airlines
subjected her to unjust discrimination or undue or unreasonable preference
or disadvantage, an act punishable under the United States laws, then the
plaintiff may claim purely nominal compensatory damages for humiliation
and hurt feelings, which are not provided for by the Warsaw Convention. In
another case, Wolgel v. Mexicana Airlines,20 the court pronounced that
actions for damages for the "bumping off" itself, rather than the incidental
damages due to the delay, fall outside the Warsaw Convention and do not
prescribe in two years.
In the Petition at bar, private respondents Complaint alleged that both PAL
and Singapore Airlines were guilty of gross negligence, which resulted in
his being subjected to "humiliation, embarrassment, mental anguish,
serious anxiety, fear and distress."21 The emotional harm suffered by the
private respondent as a result of having been unreasonably and unjustly
prevented from boarding the plane should be distinguished from the actual
damages which resulted from the same incident. Under the Civil Code
provisions on tort,22 such emotional harm gives rise to compensation where
gross negligence or malice is proven.
The instant case is comparable to the case of Lathigra v. British Airways.23
In Lathigra, it was held that the airlines negligent act of reconfirming the
passengers reservation days before departure and failing to inform the
latter that the flight had already been discontinued is not among the acts
covered by the Warsaw Convention, since the alleged negligence did not
occur during the performance of the contract of carriage but, rather, days
before the scheduled flight.
In the case at hand, Singapore Airlines barred private respondent from
Ynares
United Airlines Flight No. 819 for the San Francisco - Manila route, checked
in together with his luggage one piece of which was found to be
overweight at the airline counter. To his utter humiliation, an employee of
petitioner rebuked him saying that he should have known the maximum
weight allowance to be 70 kgs. per bag and that he should have packed his
things accordingly. Then, in a loud voice in front of the milling crowd, she
told respondent to repack his things and transfer some of them from the
overweight luggage to the lighter ones. Not wishing to create further
scene, respondent acceded only to find his luggage still overweight. The
airline then billed him overweight charges which he offered to pay with a
miscellaneous charge order (MCO) or an airline pre-paid credit. However,
the airlines employee, and later its airport supervisor, adamantly refused
to honor the MCO pointing out that there were conflicting figures listed on
it. Despite the explanation from respondent that the last figure written on
the MCO represented his balance, petitioners employees did not
accommodate him. Faced with the prospect of leaving without his luggage,
respondent paid the overweight charges with his American Express credit
card.
Respondents troubles did not end there. Upon arrival in Manila, he
discovered that one of his bags had been slashed and its contents stolen.
He particularized his losses to be around US $5,310.00. In a letter dated 16
October 1989 respondent bewailed the insult, embarrassment and
humiliating treatment he suffered in the hands of United Airlines
employees, notified petitioner of his loss and requested reimbursement
thereof. Petitioner United Airlines, through Central Baggage Specialist Joan
Kroll, did not refute any of respondents allegations and mailed a check
representing the payment of his loss based on the maximum liability of US
$9.70 per pound. Respondent, thinking the amount to be grossly
inadequate to compensate him for his losses, as well as for the indignities
he was subjected to, sent two (2) more letters to petitioner airline, one
dated 4 January 1990 through a certain Atty. Pesigan, and another dated
28 October 1991 through Atty. Ramon U. Ampil demanding an out-of-court
settlement of P1,000,000.00. Petitioner United Airlines did not accede to
his demands.
Consequently, on 9 June 1992 respondent filed a complaint for
damages against United Airlines alleging that he was a person of good
station, sitting in the board of directors of several top 500 corporations and
holding senior executive positions for such similar firms; [ that petitioner
airline accorded him ill and shabby treatment to his extreme
embarrassment and humiliation; and, as such he should be paid moral
damages of at least P1,000,000.00, exemplary damages of at least
P500,000.00, plus attorney's fees of at least P50,000.00. Similarly, he
alleged that the damage to his luggage and its stolen contents amounted
to around $5,310.00, and requested reimbursement therefor.
United Airlines moved to dismiss the complaint on the ground that
respondents cause of action had prescribed, invoking Art. 29 of the Warsaw
Convention which provides Art. 29 (1) The right to damages shall be extinguished if an action is not
brought within two (2) years, reckoned from the date of arrival at the
destination, or from the date on which the aircraft ought to have arrived, or
from the date on which the transportation stopped.
with par. 12, subpar. (a) (1), of the Air Waybill which expressly provided
that the person entitled to delivery must make a complaint to the carrier in
writing in case of visible damage to the goods, immediately after discovery
of the damage and at the latest within 14 days from receipt of the goods.
Despite non-compliance therewith the Court held that by private
respondent's immediate submission of a formal claim to petitioner, which
however was not immediately entertained as it was referred from one
employee to another, she was deemed to have substantially complied with
the requirement. The Court noted that with private respondent's own
zealous efforts in pursuing her claim it was clearly not her fault that the
letter of demand for damages could only be filed, after months of
exasperating follow-up of the claim, on 13 August 1990, and that if there
was any failure at all to file the formal claim within the prescriptive period
contemplated in the Air Waybill, this was largely because of the carrier's
own doing, the consequences of which could not in all fairness be
attributed to private respondent.
In the same vein must we rule upon the circumstances brought
before us. Verily, respondent filed his complaint more than two (2) years
later, beyond the period of limitation prescribed by the Warsaw Convention
for filing a claim for damages. However, it is obvious that respondent was