The Warsaw Convention CONSTITUTIONALITY
- The Supreme Court cannot rule upon the constitutionality of Article
AUSTRIA | CUANAN | LINCOD
MAGISTRADO | MONTANCES | SANTIAGO
HISTORY
- The Warsaw Convention is formally called The Convention for the
Unification opf Certain Rules Relating to International
Transportation by Air
- It came into effect on October 12, 1929
- The Philippines ratified it on November 9, 1950 and took effect on
February 7, 1951
- It was amended by the following:
o Hague Protocol dated September 28, 1955 and the
Philippines acceded to this Protocol on November 30, 1966
o Guatemala Protocol on 1971 BUT the Philippines has not
yet acceded to said Protocol
o Montreal Protocol on 1975 BUT the Philippines has not yet
acceded to said Protocol
BINDING EFFECT
- It has the force and effect of law in this country and applies to all
international transportation of persons, baggage or goods performed
by an aircraft gratuitously or for hire
PUROSES
- It was designed to protect and promote the international airline
industry that was, at the time of the drafting of the treaty, still in its
infancy.
- The Warsaw Convention applies to all international transportation of
persons, baggage or goods performed by any aircraft for hire. It
seeks to accommodate or balance the interests of passengers
seeking recovery for personal injuries and the interests of air carriers
seeking to limit potential liability. It employs a scheme of strict liability
favoring passengers and imposing damage caps to benefit air
carriers.[16] The cardinal purpose of the Warsaw Convention is to
provide uniformity of rules governing claims arising from international
air travel; thus, it precludes a passenger from maintaining an action
for personal injury damages under local law when his or her claim
does not satisfy the conditions of liability under the Convention.
(Philippine Airlines Inc v. Hon. Adriano Savillo GR NO. 14954, July 4,
2008)
28(1) of the Warsaw Convention. In the first place, it is a treaty which
was a joint act by the legislative and the executive. The presumption
is that it was first carefully studied and determined to be
constitutional before it was adopted and given the force of law in this
country. (Santos III v. Northwest Orient Airlines 210 SCRA 256)
MEANING OF INTERNATIONAL TRANSPORTATION
1. The place of departure and the place of destination are within the
territories of two contracting countries regardless of whether or not
there was a break in the transportation or transshipment;
2. The place of departure and the place of destination are within the
territory of a single contracting country if there is an agreed stopping
place within a territory subject to the sovereignty, mandate or
authority of another power, even though the power is not a party to
the Convention
PERIOD COVERED BY INTERNATIONAL TRANSPORTATION
- It means the period during which the baggage or 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
- ARTICLE 18(3) Warsaw Convention - The period of the
transportation by air shall not extend to any transportation by land,
by sea, or by river performed outside an airport. If, however such
transportation takes place in the performance of a contract of
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.
WHEN INTERNATIONAL CARRIER IS LIABLE
- The carrier is liable if the passengers injury was inflicted:
1. On board the aircraft (Art 17)
2. In the course of any of the operations of embarking (Art 17)
3. In the course of disembarking (Art 17)
4. When there was or because of delay (Art 19)
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ARTICLE 17 Warsaw Convention - 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 the
operations of embarking or disembarking
o The passengers injury must be caused by an unexpected or
unusual event external to the passenger
o Nothing in this definition suggests that an accident
encompasses only negligent or reckless conduct, as
opposed to intentional misconduct; in fact, there is no
mention of the carriers motive or mental state whatsoever
ARTICLE 19 Warsaw Convention - The carrier shall be liable for damage
occasioned by delay in the transportation by air of passengers, baggage, or
goods.
COVERAGE
- It applies to international air carriers
ARTICLE 18 Warsaw Convention
(1) The carrier shall be liable for damages 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 preceding
paragraph shall comprise the period during which the baggage or
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.
RULES TO LIMIT THE LIABILITY OF THE CARRIERS
ARTICLE 20 Warsaw Convention
(1) In the transportation of passengers, the liability of the carrier for each
passenger shall be limited to the sum of 125,000 francs. Where in
accordance with the law of the court to which the case is submitted,
damages may be awarded in the form of periodical payments, the
equivalent capital value of the said payments shall not exceed
125,000 francs. Nevertheless, by special contract, the carrier and the
passenger may agree to a higher limit of liability;
(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, unless
the consignor has made, at the time when the package was handed
over to the carrier, a special declaration of the value of 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 sum,
unless he proves that the sum is greater than the actual value to the
consignor at delivery;
(3) As regards objects of which 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 me 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.
- 1. In the carriage of passengers the liability of the carrier for each
passenger is limited to the sum of 250,000 francs . . . Nevertheless,
by special contract, the carrier and the passenger may agree to a
higher limit of liability.: and
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
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 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. (Alitalia v. Intermediate Appellate Court
GR NO. 71929, December 4, 1990)
DEFENSES AGAINST LIMIT OF LIABILITY
1. Willful misconduct
- as the intentional performance of an act (or failure to act) with
knowledge that the act will probably result in injury or damage, or in
some manner as to imply reckless disregard of the consequences of
its performance, or a deliberate purpose not to discharge some duty
necessary to safety.
- The Warsaw Convention however denies to the carrier resort to 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 to be equivalent to willful misconduct or if the damage is
(similarly) causedby any agent of the carrier acting within the
scope of his employment
2. Gross negligence
- The loss of said baggage not only once by twice, said the appellate
court, underscores the wanton negligence and lack of care on the
part of the carrier. (Sabena Belgian World Airlines v. Hon. Court of
Appeals GR NO. 104685 March 14, 1996)
3. Absence of baggage check
- The absence, irregularity, or loss of the baggage checks shall not
affect the existence or the validity of the contract of transportation
which shall nonetheless be subject to the rules of this Convention.
Nevertheless, if the carrier accepts baggage check does not contain
certain particulars, the carrier shall not be entitled to avail himself of
those provisions of the Convention which exclude or limit his liability.
4. If there was waiver on the part of the carrier
- The benefits of limited liability are subject to waiver such as when the
air carrier failed to raise timely objections during the trial when
questions and answers regarding the actual claims and damages
sustained by the passenger were asked.
5. If the carrier is estopped from invoking the provision on limit of
liability
- In other words, private respondent Mejia could and would have
complied with the conditions stated in the air waybill, i.e., declaration
of a higher value and payment of supplemental transportation
charges, entitling her to recovery of damages beyond the stipulated
limit of US$20 per kilogram of cargo in the event of loss or damage,
had she not been effectively prevented from doing so upon the
advice of PALs personnel for reasons best known to themselves.
(Philippine Airlines, Inc v. Court of Appeals GR NO. 119706 March
14, 1996)
TARIFF LIMITATIONS
- an air carrier is not liable for the loss of baggage in an amount in
excess of the limits specified in the tariff which was filed with the
proper authorities, such tariff being binding on the passenger
regardless of the passengers lack of knowledge thereof or assent
thereto. This doctrine is recognized in this jurisdiction.
Notwithstanding the foregoing, we have, nevertheless, ruled
against blind reliance on adhesion contracts where the facts and
circumstances justify that they should be disregarded (British
Airways v. Court of Appeals GR NO. 121824 January 29, 1998)
TORT LIABILITY
- It does not provide for an exclusive enumeration of instances when
the carrier is liable.
- It does not provide for an absolute limit of liability
- It does not preclude the application of the Civil Code and other
pertinent local laws
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VENUE OF ACTION
1. The court where the carrier is domiciled
2. The court where the carrier has its principal place of business
3. The court where the carrier has an establishment by which the
contract has been made; or
4. The court of the place of destination
- The filing of the case in the proper venues provided for in the
Warsaw Convention is still required even if there are allegations of
tortious conduct committed against an airline passenger during the
course of the international carriage
- Allegations of tort do not bring the case outside the ambit of the
Warsaw Convention
- Jurisdictional in character -cannot be left to the will of the parties
(Lhuillier v. British Airways GR NO. 171092 March 15, 2010)
NOTICE OF CLAIM
1. Three days from receipt of the baggage
2. Seven days from receipt of goods
3. Fourteen days, in case of delay, counted from the time the
baggage was placed at the disposal of the passenger
The complaint or notice of claim is a condition precedent
Reasons:
To inform the carrier that the cargo has been damaged and
that it is being charged with liability therefore
To give it an opportunity to examine the nature and extent of
the injury
* Delay on the part of the passenger to file a notice of claim within the
prescribed period is also excused if such delay can be attributed to the acts
or omissions of the carrier
- NOT APPLICABLE WHEN: When there is fraud on the
part of the carrier
PRESCRIPTION
ARTICLE 29 Warsaw Convention
1. The right to damages shall be extinguished if an action is not
brought within two years, reckoned from the date of arrival at the
destination, or from the date on which the aircraft ought to have
arrived
2. The method of calculating the period of limitation shall be
determined by the law of the Court seised of the case
NATURE OF PRESCRIPTIVE PERIOD
Two-year limitation is intended as an absolute bar to suit and not to
be made subject to the various tolling provisions of the laws of the
forum
Forecloses the application of interruption on prescriptive periods
In our jurisdiction, action shall be deemed commenced upon the
filing of a complaint
Two-year prescriptive period does NOT apply if the cause of action is
based on quasi-delict.
SUCCESSIVE CARRIERS
- Transportation to be performed by several successive carriers shall
be deemed, for the purposes of this convention , to be one
undivided transportation , if it has been regarded by the parties as
a single operation, whether it has been agreed upon under the form
of a single contract or a series of contracts, and it shall not lose its
international character merely because one contract or series of
contracts is to be performed entirely within the territory subject of the
sovereignty, suzerainty, mandate or authority of the same high
contracting party.
LIABILITY OF AGENT
- The fact that a successive carrier is considered an agent does not
necessarily excuse the agent from liability
- The agent is liable for its own negligent acts or omission in the
performance of its duties
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FORMALITIES k. Freight, if it has been agreed upon, the date and place of payment,
and the person who is to pay it
- The Warsaw Convention on Air Transportation provides for the basic l. If the goods are sent for payment on delivery, the price of the goods,
contents of the Passenger Ticket, the Baggage Check as well as the and if the case so requires, the amount of the expenses incurred
Air Way Bill m. Amount of value declared
n. Number of parts of the airway bill
I. PASSENGER TICKET (Article 3 (1) Warsaw Convention) o. Documents handed to the carrier to accompany the air way bill
p. Time fixed for the completion of the transportation and a brief note of
a. Place and date of issue the route to be followed, if these matters have been agreed upon,
b. Place of departure and destination q. A statement that the transportation is subject to the rules relating to
c. Agreed stopping places, provided that the carrier may reserve the liability established by the Convention.
right to alter the stopping place in case of necessity
d. Name and address of the carrier/s Airway Bill - a document which the consignor is obliged to make out and
e. Statement that the transportation is subject to the rules relating to hand over to the carrier.
liability established by this convention
Functions of an Airway bill
II. BAGGAGE CHECK (Article 4(3) Warsaw Convention) IT IS A PRIMA FACIE EVIDENCE OF:
The conclusion of the contract
a. Place and date of issue The receipt of the goods
b. Place of departure and destination The conditions of the transportation
c. Name and address of the carrier/s The weight, dimensions and packaging of the goods
d. Number of passenger ticket The number of packages
e. Statement that delivery of the baggage will be made to the bearer of
the baggage check
f. Number and weight of the packages The carrier has the right to require the consignor to make out
g. Amount of the value declared separate airway bills when there is more than one package.
h. A statement that the transportation is subject to the rules relating to There is nothing in the Convention which prohibits the carrier from
liability established by the Convention. making out the airway bill itself.
A printed stipulation in the airway bill or airline ticket limiting the
III. AIRWAY BILL (Article 8) liability of the air carrier to a specified amount is valid, but any
ambiguity in the airway bill is strictly construed against the carrier.
a. Place and date of issue (Ong Yiu vs. CA, 91 SCRA 223; Shewaram vs. PAL, 17 SCRA 606)
b. Place of departure and destination
c. Agreed stopping places, provided that the carrier may reserve the TRANSPORTATION DOCUMENTS
right to alter the stopping place in case of necessity
d. Name and address of the consignor
e. Name and address of the first carrier Baggage
Passenger Ticket Airway Bill
f. Name and address of the consignee, if the case so requires Check
g. Nature of the goods
Checked-in Goods to be
h. Number of packages, the method of packing and the particular Passenger
Baggage shipped
marks or numbers upon them
i. Weight, quantity, volume or dimension of the goods
j. Apparent condition of the goods and of the packing