Transportation and maritime law

Sec. 16, COGSA. This Act may be cited as the "Carriage of Goods by Sea Act."
Approved, April 16, 1936.

V. International Air Transport

A. The Warsaw Convention, 51 O.G. 5084 (October 1955);
Presidential Proclamation No. 201, 51 O.G. 4933 (October 1955)
MAKING PUBLIC THE ADHERENCE OF THE R.P. TO THE CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTL. TRANSPORTATION BY AIR AND THE ADDITIONAL PROTOCOL THERETO, 1929
WHEREAS, a Convention for the Unification of Certain Rules Relating to International Transportation by Air & an Additional Protocol thereto relating to Article 2 of the Convention were signed at Warsaw by the plenipotentiaries of 32 countries;
WHEREAS, Article 38 of the aforesaid Convention provides that a Government on behalf of which this Convention has not been signed, shall be allowed to adhere thereto at any time after the Convention has come into force, by means of a notification ad­dressed to the Government of the Republic of Poland;
WHEREAS, the Senate of the Congress of the Philippines, by its Resolution No. 19 adopted on May 16, 1950, concurred in the adherence by the Republic of the Philippines Government to the said Convention & the said Protocol in accordance with the Philippine Constitution, subject to the reservation, as provided in the Additional Protocol, that the 1st paragraph of Art. 2 of the Convention shall not apply to international transportation that may be performed by the Republic of the Philippines;
WHEREAS, the Republic of the Philippines Government has formally adhered to the said Convention its Additional Protocol, & the Government of the Republic of Poland was notified of said adherence on November 9, 1950, when the instrument of adherence was registered in accordance with Article 38 (2) of said Conven­tion; and,
WHEREAS, the adherence of the Republic of the Philippines Government, pursuant to Art. 38(3) of said Convention, took effect as from the 90th day after November 9, 1950.
NOW, THEREFORE, be it known that I, Ramon Magsaysay, Repub­lic of the Philippines President, in pursuance of the aforesaid concurrence of the Senate of the Congress of the Philippines, and subject to the reservation as provided in the Additional Protocol that the First paragraph of Art.2 of the Convention shall not apply to international transportation that may be performed by the Republic of the Philippines, do hereby proclaim and make public the said Convention and said Protocol, a copy of which is hereto attached, to the end that the same and every article and clause thereof may be observed & fulfilled with good faith by the Republic of the Philippines and the citizens thereof.
Notes: If common carrier, Civil Code first applies, then Warsaw Con­vention.
Situations where Warsaw is applicable is in private carriers.

The only criterion for the Warsaw Convention to be applicable is: it is applicable to ALL international transportation of persons, baggage, or goods performed by aircraft for hire.

International transport: where there's transport by AIR & there is a point of contact in 2 high contracting parties (countries which have acceded to the Convention).
E.g. transportation by PAL from Manila to San Francisco

Federal Express - transporation of goods

B. Constitutionality
SANTOS V. NORTHWEST AIRLINES [210 S 256 (1992)]
F: 1. A Filipino minor was informed by Northwest that he had no reservations for his flights, and had to be waitlisted, despite a previous confirmation. He sued for damages. Northwest moved to dismiss on the ground of lack of jurisdiction based on Art.28 (1) of the Warsaw Convention, where the complaint could be instituted in the territory of one of the contracting parties before the court of the

(1) domicile of the carrier;

(2) principal place of business;

(3) where it has a place of business through which the contract had been made; and

(4) place of destination.
FIRST ISSUE: W/NOT THE WARSAW CONVENTION IS UNCONSTITUTIONAL?
HELD: No. Art. 28 (1) of Warsaw Con. is constitutional. Although the case can be decided on other grounds without resolving the constitutional question, the Warsaw Convention is a treaty com­mitment voluntarily assumed by the Philippine Government and as such, has the force and effect of law. The presumption is that this joint legislative-executive act was first carefully studied and determined to be constitutional before it was adopted. Peti­tioner's allegation have not overcome this presumption. Moreover, the treaty since 1950 has not been rejected by the Philippine Government.
SECOND ISSUE: W/NOT THE WC SHOULD BE RENDERED IRRELEVANT BY THE DOCTRINE OF REBUS SIC STANTIBUS?
HELD: No. The circumstance that the airline industry was still in infancy when the Convention was made, alone, is not sufficient justification for the rejection of the treaty at this time. The changes recited by petitioner were not entirely unforeseen al­though they were expected in a general sense only. (Check Art.41).
THIRD ISSUE: W/NOT THE REQUISITS OF THE WC IS MERELY A MATTER OF VENUE OR JURISDICTION?
HELD: Jurisdiction

(1) The wording of Art. 32, which indicates the places where the action for damages "must" be brought, underscores the mandatory nature of Art. 28 (1).

(2) 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.
FOURT ISSUE: W/NOT PHILIPPIN COURTS HAVE JURISDICTION OVER THIS CASE?
HELD: No. Art. 28 (1) provides that an action for damage must be brought at the option of the plaintiff: (a) before the court of the domicile of the carrier;

(b) the court of its principal place of business;

(c) the court where it has a place of business thru w/c the contract had been made;

(d) the court of the place of destination.

In this case, the ff. were not followed, and hence the Philippines, not being one of the courts mentioned in Art.28 (1), does not have jurisdiction over the case.

(1) court of domicile is Minnesota, U.S.A;

(2) principal place of business of carrier is also U.S.A;

(3) place of business where contract was made was in San Francis­co;

(4) place of destination is also San Francisco, Santos having purchased a round trip-ticket from SFO-TYO-MNL, then back to TYO- SFO. The "ultimate destination" being San Francisco.
The court called upon to determine the applicability of the limitation provision must first be vested with the appropriate jurisdiction. If the carrier is indeed is indeed not guilty of WILLFUL MISCONDUCT, it can avail itself of the limitations set forth in this article. But it can be done only if the action has first been commenced properly under the rules set forth in Art.28 (1).
Notes: The enumeration of the causes of action in the WC is not an exclusive list. You can have a cause of action even if it is not:

(a) death or wounding of passenger;

(b) damage or loss or destruction of checked baggage;

(c) delay in transportation of passengers, luggage and goods.

The case of Northwest is actually overbooking. Delay still a cause of action under WC.
Note however, that the limitations of liability in the Conven­tion favors the carrier.

C. When Applicable

Art. 1. (1) This convention shall apply to all international transportation of persons, baggage, or goods performed by air­craft for hire. It shall apply equally to gratuitous transporta­tion by aircraft performed by an air transportation enterprise.

(2) For the purpose 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, 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. Trans­portation without such an agreed stopping place between territo­ries subject to the sovereignty, suzerainty, mandate, or authori­ty of the same High Contracting Party shall not be deemed to be international for the purposes of this Convention.

(3) Transportation to be performed by several successive air carriers shall be deemed, for the purposes of this Convention, to be one undivided transportation, if it has been rendered by the parties as a single operation, whether it has been agreed upon under the form of a single contract or of a series of contracts is to be performed entirely w/in a territory subject to the sovereignty, suzerainty, mandate, or authority of the same High Contracting Party.

Art. 2. (1) This convention shall apply to transportation performed by the state or by legal entities constituted under public law provided it falls within the conditions laid down in Art .1.

(2) This convention shall not apply to transportation per­formed under the terms of any international postal convention.

D. Liabilities Under the Convention

Art. 17. The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disem­barking.

Art. 18. (1) The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage, or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.

(2) The transportation by air within the meaning of the proceeding paragraph shall comprise the period during which the baggage or the goods are in charge of the carrier, whether in an airport or on board an aircraft, or in the case of a landing outside an airport, in any place whatsoever.

(3) The period of the transportation by air shall not extend to any transportation by land, by sea, or by river performed outside of an airport. If however, such transportation takes place in the performance of a contract for transportation by air, for the purpose of loading, delivery, or transshipment,any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the transportation by air.

Art. 19. The carrier shall be liable for damage occasioned by delay in the transportation by air of passengers,baggage, or goods.


NORTHRWEST V. CUENCA [14 S 1063 (1965)]
F: Nicolas Cuenca, an official delegate of Philippines to a conference in Tokyo, was transferred from first class to tourist class despite his first class ticket. The Northwest agent also treated him rudely in front of other passengers. Northwest argues that according to the Warsaw Convention, Arts. 17, 18, 19, an air carrier is liable only in the event of (a) death of a passenger or injury suffered by him; (b) of destruction or loss of, or damage to any checked baggage/goods; & (c) delay in the transportation by air of passengers, baggage or goods.
ISSUE: W/NOT CUENCA HAS A CAUSE OF ACTION THOUGH NOT AMONG THOSE MENTIONED IN THE WC?
HELD: Yes. The said articles merely declare the carrier liable for damages in the enumerated cases, if the conditions therein specified are present. Neither the provisions of said articles nor others 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.

ALITALIA V. IAC [192 SCRA 10 (1990)]
F: Dr. Felipa Pablo, an Associate UP Professor and research grantee of the Philippine Atomic Energy Agency was scheduled to speak in a UN meeting in Ispra, Italy. She arrived in Milan a day before the meeting, but her luggage (where her speech was) was delayed, and arrived a day after the meeting. She returned to Manila before the meeting.
ISSUE: W/NOT THE WC SHOULD APPLY TO LIMIT ALITATLIA'S LIABILITY?
HELD: No. The WC does not operate as an absolute limit of the extent of an airline's liability. It does not regulate or exclude liability for other breaches of contract by the carrier.
Under the WC, an air carrier is made liable for damages for delay in the transportation by air of passengers, luggage or goods. The WC also limits the liability of the carrier to 250 francs per kilo of the total weight of the package. The WC denies to the carrier availment of the provisions which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as, in accordance with the law of the court seized of the case, is considered as willful misconduct, or if the damage is caused by any agent of the carrier acting w/in the scope of his employment.
2. The WC does not regulate or exclude liability for other breaches of contract by the carrier or misconduct of its offi­cers and employees or for some particular or exceptional damage. The WC has been held inapplicable where there was proof of malice or bad faith attributable to its officers and employees. Here, however, there was no bad faith on the part of the employees.

Nominal damages however, was awarded because of the presence of some special species of injury caused to Dr. Pablo.

E. Limitations on Liability

RE: PASSENGERS
Art.22. (1) In the transportation of passengers the liabili­ty of the carrier for each passenger shall be limited to the sum of 125,000 francs. (Now $100,000) Where, in accordance w/ the law of the court to w/c the case is submitted, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not be exceed 125,000 francs. Never­theless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
RE: BAGGAGE/GOODS
(2) In the transportation of checked baggage and of goods, the liability of the carrier shall be limited to a sum of 250 francs per kilogram (Now $20 per kilo), unless the consignor has made, at the time when the package was handed over to the carri­er, a special declaration of the value of the delivery 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 sun, unless he proves that the sum is grater that the actual value to the consignor at delivery.
(3) As regards objects of w/c the passenger takes charge himself, the liability of the carrier shall be limited to 5,000 francs per passenger.
(4) The sums mentioned above shall be deemed to refer to the French franc consisting of 65 1/2 milligrams of gold at the standard of fineness of nine hundred thousandths. These sums may be converted into any national currency in round figures.
Art. 23. Any provision tending to relieve the carrier of liability or to fix a lower limit that which is laid down in this convention shall be null and void, but the nullity of any such provision shall not involve the nullity of the whole contract, which shall remain subject to the provisions of this convention.
Art. 24. (1) In the cases covered by Arts.18 & 19 any action for damages, HOWEVER FOUNDED, can only be brought subject to the conditions and limit set out in this convention.

(2) In the case covered by Art.17, the provisions of the preced­ing paragraph shall also apply,w/o prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.
NOTES: Even if you base your claim on quasi-delict, you can still sue under Warsaw, invoking Art.24 (1).

PAN AM v. IAC (164 SCRA)
F: Pangan's luggages didn't arrive w/ his flight. As a conse­quence the film exhibitions he set up & promoted for, was can­celled. CFI ordered PanAm to pay for P83,000 for actual damages. PanAm contended that such award was beyond the limitation of liability set forth in the Warsaw Con., the provisions of such being found at the back of the ticket.
ISSUE: WON Pangan is bound by such Warsaw provisions & hence is entitled only to $600 ($20 standard X 30 kilos) ---- YES.

Such provisions have been held to be a part of the contract of carriage, & is valid & binding upon the passenger regardless of the latter's lack of knowledge or assent to the regulation.

A contract limiting liability upon an agreed valuation does not offend against the policy of the law forbidding one from contracting against his own negligence. Inasmuch as Pangan failed to declare any higher value for his luggage & to pay add'l charges, PanAm's liability is limited to $600, as stipulated at the back of the ticket.

FELICIANO v. PAN AM (CA CASE)
F: Feliciano, & her Co. asked P182,000 for the value of the contents of her lost luggage (including loss of possible oppor­tunities). PanAm contends its liability if limited by the Warsaw Con. to not more than $20 per kilo. TC held that there was no issue of fact except as to amount& awarded $600 ($20 X 30 kgs).
Was TC correct? --- YES.

Indeed, SC has granted damages on the ground of fraud or bad faith due to the personal misconduct of airline employees. This case, however, the contract of carriage of PET's baggage is based on the conditions in the airline. Such contract is governed by Art.22(2). Since there is no evidence that PET had declared a higher value for her lost luggage for w/c the corresponding value, the Warsaw Con. should apply.

F. When limitations unavailable
Art. 3. (1) For the transpo. of passengers the carrier must deliver a passenger ticket w/c shall contain the ff. particulars:
(a) The place & date of issue;

(b) The place of departure & of destination;

(c) The agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of neces­sity, and that if he exercises that right, the alteration shall not have the effect of depriving the transportation of its intl. character;

(d) The name & address of the carrier/s;

(e) A statement that the transpo. is subject to the rules relat­ing to liability established by this convention.
(2) The absence, irregularity, or loss of the passenger ticket shall not affect the existence or the validity of the contract of transportation, w/c shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts a passenger w/o a passenger ticket having been deliv­ered he shall not be entitled to avail himself of those provi­sions of this Convention w/c exclude or limit his liability.
Art.25. (1) The carrier shall not be entitled to avail himself of the provisions of this convention w/c exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance w/ the law of the court to w/c the case is submitted, is considered to be equivalent to wilful misconduct.

(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, is the damage is caused under the same circumstances by any agent of the carrier acting w/in the scope of his employment.
NOTES: Q: In what cases can carrier NOT invoke limitations?

A: 1. wilfull misconduct (Art.25)

2. default amounting to wilful misconduct accdg. to court where action is brought;

3. accepting passengers w/o passenger ticket (Art.3-2);

4. accepting goods w/o air waybill/baggage w/o baggage check.
Q: Can carrier rely on WC if it was guilty of wilfull miscon­duct?
A: YES. It just can't avail of the limitation on liability. Thus it can still invoke the provisions on NOTICE or PRESCRIPTION/LACK OF CAUSE OF ACTION.

e.g. If damage wasn't one of the enumerations in the WC, & case was filed beyond the 2 year requirement. The carrier can invoke prescription. But if suit is brought w/in 2 years, carrier may be liable for a higher amount than the limitation.

The only time when WC isn't applicable is when it's not intl. air transport. There is nothing in Art.25 w/c says that the WC doesn't apply entirely.

ALITALIA v.IAC (supra)
The Convention does not regulate or exclude liability for other breaches of contract by the carrier or misconduct of its officers and employees or for some particular or exceptional damage. The Con. has been held inapplicable where there was proof of malice or bad faith attributable to its officers & employees. HERE, HOWEVER, no bad faith of EES. Nominal damages however, was awarded because of the presence of some special species of injury caused to Dr. Pablo.

TWA v. CA (165 SCRA)
F: Vinluan, ACCRA lawyer, was downgraded from 1st class to economy & was issued refund

application, in his MNL-Europe-NYK- SFO-MNL flight. (His NYK-SFO flight particularly) He also noticed that white Caucasian passengers who checked in later than him were given preference in 1st class seats, w/c became available due to "no show" passengers. He sued in CFI for breach of con­tract & bad faith.

ISSUE: WON Warsaw Con. limit on liability can be availed of --- NO.

There was obvious discrimination & humiliation to w/c Vin­luan was subjected. Such inattention & lack of care for interest of its passengers amount to bad faith w/c entitles passenger to moral damages.

NOTES: His entire trip, even though he availed of the services of other airlines, is equal to one transport.

E.g. MNL-SFO via PAL } one continuing

SFO-NYK via United } ticket

Hence, if injury appears in SFO-NYK, Warsaw can be applied.

F. Conditions of Liability
Art.26. (1) Receipt by the person entitled to the delivery of baggage of goods w/o complaint shall be prima facie evidence that the same have been delivered in good condition & in accord­ance w/ the document of transpo.

(2)In case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and at the latest, within 3 days from the date of receipt in the case of BAGGAGE and 7 days from the date of receipt in the case of GOODS. In case of DELAY the complaint must be made at the latest w/in 14 days from the date on w/c the baggage or goods have been placed at his disposal.

(3) Every complaint must be made in writing upon the docu­ment of transportation or by separate notice in writing dis­patched w/in the times aforesaid.

(4) Failing complaint w/in the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part.
NOTE: No notice requirement in case or a person's death or in­jury.
Art. 27. In the case of death of the person liable, an action for damages lies in accordance w/ th terms of this convention against those legally representing his estate.
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 w/c the contract has been made, or before the court at the place of destination.

(2) Questions of procedure shall be governed by the law of the court to w/c the case is submitted.

SANTOS v. NORTHWEST (supra)
Art. 28(1) provides that an action for damage must be brought at the option of the plaintiff:
(a) before the court of the domicile of the carrier;

(b) the court of its principal place of business;

(c) the court where it has a place of business thru w/c the contract had been made;

(d) the court of the place of destination.
xxx
In this case, the ff. were not followed, and hence the Phils., not being one of the courts mentioned in Art.28 (1), does not have jurisdiction over the case.

(1) court of domicile is U.S., Minnesota;

(2) principal place of business of carrier is also US;

(3) place of business where contract was made was in San Fran­cisco;

(4) place of destination is also San Francisco, Santos having purchased a round trip-ticket from SFO-TYO-MNL, then back to TYO- SFO. The "ultimate destination" being San Francisco.

Art. 32. Any clause contained in the contract an all spe­cial agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this convention, whether by deciding the law to be applied or by altering the rules as to jurisdiction, shall be null and void. Nevertheless, for the transportation of goods, arbitration clauses shall be allowed, subject to this convention, if the arbitration is to take place within one of the jurisdictions referred to in the first paragraph of Article 28.