Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 101538 June 23, 1992 AUGUSTO BENEDICTO SANTOS III, re re!en"e# $% &'! ()"&er )n# *e+)* +u)r#')n, Au+u!"o Bene#',"o S)n"o!, petitioner, vs. NORT-.EST ORIENT AIR/INES )n# COURT O0 APPEA/S, respondents.

CRU1, J.: This case involves the Proper interpretation of Article 28 !" of the #arsa$ Convention, readin% as follo$s& Art. 28. !" An action for da'a%e 'ust be brou%ht at the option of the plaintiff, in the territor( of one of the )i%h Contractin% Parties, either before the court of the do'icile of the carrier or of his principal place of business, or $here he has a place of business throu%h $hich the contract has been 'ade, or before the court at the place of destination. The petitioner is a 'inor and a resident of the Philippines. Private respondent North$est *rient Airlines N*A" is a forei%n corporation $ith principal office in Minnesota, +.,.A. and licensed to do business and 'aintain a branch office in the Philippines. *n *ctober 2!, !-8., the petitioner purchased fro' N*A a round/trip tic0et in ,an 1rancisco. +.,.A., for his fli%ht fro' ,an 1rancisco to Manila via To0(o and bac0. The scheduled departure date fro' To0(o $as 2ece'ber 23, !-8.. No date $as specified for his return to ,an 1rancisco. 1 *n 2ece'ber !-, !-8., the petitioner chec0ed in at the N*A counter in the ,an 1rancisco airport for his scheduled departure to Manila. 2espite a previous confir'ation and re/confir'ation, he $as infor'ed that he had no reservation for his fli%ht fro' To0(o to Manila. )e therefore had to be $ait/ listed. *n March !2, !-84, the petitioner sued N*A for da'a%es in the Re%ional Trial Court of Ma0ati. *n April !5, !-84, N*A 'oved to dis'iss the co'plaint on the %round of lac0 of 6urisdiction. Citin% the above/ 7uoted article, it contended that the co'plaint could be instituted onl( in the territor( of one of the )i%h Contractin% Parties, before& !. the court of the do'icile of the carrier8 2. the court of its principal place of business8 5. the court $here it has a place of business throu%h $hich the contract had been 'ade8 9. the court of the place of destination. The private respondent contended that the Philippines $as not its do'icile nor $as this its principal place of business. Neither $as the petitioner:s tic0et issued in this countr( nor $as his destination Manila but ,an 1rancisco in the +nited ,tates. *n 1ebruar( !, !-88, the lo$er court %ranted the 'otion and dis'issed the case. 2 The petitioner

appealed to the Court of Appeals, $hich affir'ed the decision of the lo$er court. 3 *n ;une

2., !--!, the petitioner filed a 'otion for reconsideration, but the sa'e $as denied. 2 The petitioner then ca'e to this Court, raisin% substantiall( the sa'e issues it sub'itted in the Court of Appeals.
The assi%n'ent of errors 'a( be %rouped into t$o 'a6or issues, viz: !" the constitutionalit( of Article 28 !" of the #arsa$ Convention8 and 2" the 6urisdiction of Philippine courts over the case. The petitioner also invo0es Article 29 of the Civil Code on the protection of 'inors. < T)E <,,+E *1 C*N,T<T+T<*NA=<T> 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 e ual protection! The Republic of the Philippines is a part( to the Convention for the +nification of Certain Rules Relatin% to <nternational Transportation b( Air, other$ise 0no$n as the #arsa$ Convention. <t too0 effect on 1ebruar( !5, !-55. The Convention $as concurred in b( the ,enate, throu%h its Resolution No. !-, on Ma( !., !-?3. The Philippine instru'ent of accession $as si%ned b( President Elpidio @uirino on *ctober !5, !-?3, and $as deposited $ith the Polish %overn'ent on Nove'ber -, !-?3. The Convention beca'e applicable to the Philippines on 1ebruar( -, !-?!. *n ,epte'ber 25, !-??, President Ra'on Ma%sa(sa( issued Procla'ation No. 23!, declarin% our for'al adherence thereto. Ato the end that the sa'e and ever( article and clause thereof 'a( be observed and fulfilled in %ood faith b( the Republic of the Philippines and the citiBens thereof.A 5 The Convention is thus a treat( co''it'ent voluntaril( assu'ed b( the Philippine %overn'ent and, as such, has the force and effect of la$ in this countr(. The petitioner contends that Article 28 !" cannot be applied in the present case because it is unconstitutional. )e ar%ues that there is no substantial distinction bet$een a person $ho purchases a tic0et in Manila and a person $ho purchases his tic0et in ,an 1rancisco. The classification of the places in $hich actions for da'a%es 'a( be brou%ht is arbitrar( and irrational and thus violates the due process and e7ual protection clauses. <t is $ell/settled that courts $ill assu'e 6urisdiction over a constitutional 7uestion onl( if it is sho$n that the essential re7uisites of a 6udicial in7uir( into such a 7uestion are first satisfied. Thus, there 'ust be an actual case or controvers( involvin% a conflict of le%al ri%hts susceptible of 6udicial deter'ination8 the constitutional 7uestion 'ust have been opportunel( raised b( the proper part(8 and the resolution of the 7uestion is unavoidabl( necessar( to the decision of the case itself. 3 Courts %enerall( avoid havin% to decide a constitutional 7uestion. This attitude is based on the doctrine of separation of po$ers, $hich en6oins upon the depart'ents of the %overn'ent a beco'in% respect for each other:s acts. The treat( $hich is the sub6ect 'atter of this petition $as a 6oint le%islative/eCecutive act. The presu'ption is that it $as first carefull( studied and deter'ined to be constitutional before it $as adopted and %iven the force of la$ in this countr(. The petitioner:s alle%ations are not convincin% enou%h to overco'e this presu'ption. Apparentl(, the Convention considered the four places desi%nated in Article 28 the 'ost convenient foru's for the liti%ation of an( clai' that 'a( arise bet$een the airline and its passen%er, as distin%uished fro' all other places. At an( rate, $e a%ree $ith the respondent court that this case can be decided on other %rounds $ithout the necessit( of resolvin% the constitutional issue.

B. The petitioner claims that the lower court erred in not ruling that Art! 28(1) of the Warsaw Convention is inapplica"le "ecause of a fundamental change in the circumstances that served as its "asis! The petitioner %oes at %reat len%ths to sho$ that the provisions in the Convention $ere intended to protect airline co'panies under Athe conditions prevailin% then and $hich have lon% ceased to eCist.A )e ar%ues that in vie$ of the si%nificant develop'ents in the airline industr( throu%h the (ears, the treat( has beco'e irrelevant. )ence, to the eCtent that it has lost its basis for approval, it has beco'e unconstitutional. The petitioner is invo0in% the doctrine of re"us sic stanti"us. Accordin% to ;essup, Athis doctrine constitutes an atte'pt to for'ulate a le%al principle $hich $ould 6ustif( non/perfor'ance of a treat( obli%ation if the conditions $ith relation to $hich the parties contracted have chan%ed so 'ateriall( and so uneCpectedl( as to create a situation in $hich the eCaction of perfor'ance $ould be unreasonable.A 4 The 0e( ele'ent of this doctrine is the vital chan%e in the condition of the

contractin% parties that the( could not have foreseen at the ti'e the treat( $as concluded.
The Court notes in this connection the follo$in% observation 'ade in #a$ v! Trans World Airlines% &nc.& 8 The #arsa$ drafters $ished to create a s(ste' of liabilit( rules that $ould cover all the haBards of air travel . . . The #arsa$ dele%ates 0ne$ that, in the (ears to co'e, civil aviation $ould chan%e in $a(s that the( could not foresee. The( $ished to desi%n a s(ste' of air la$ that $ould be both durable and fleCible enou%h to 0eep pace $ith these chan%es . . . The ever/chan%in% needs of the s(ste' of civil aviation can be served $ithin the fra'e$or0 the( created. <t is true that at the ti'e the #arsa$ Convention $as drafted, the airline industr( $as still in its infanc(. )o$ever, that circu'stance alone is not sufficient 6ustification for the re6ection of the treat( at this ti'e. The chan%es recited b( the petitioner $ere, realisticall(, not entirel( unforeseen althou%h the( $ere eCpected in a %eneral sense onl(. <n fact, the Convention itself, anticipatin% such develop'ents, contains the follo$in% si%nificant provision& Article 9!. An( )i%h Contractin% Part( shall be entitled not earlier than t$o (ears after the co'in% into force of this convention to call for the asse'blin% of a ne$ international conference in order to consider an( i'prove'ents $hich 'a( be 'ade in this convention. To this end, it $ill co''unicate $ith the Dovern'ent of the 1rench Republic $hich $ill ta0e the necessar( 'easures to 'a0e preparations for such conference. But the 'ore i'portant consideration is that the treat( has not been re6ected b( the Philippine %overn'ent. The doctrine of re"us sic stanti"us does not operate auto'aticall( to render the treat( inoperative. There is a necessit( for a for'al act of re6ection, usuall( 'ade b( the head of ,tate, $ith a state'ent of the reasons $h( co'pliance $ith the treat( is no lon%er re7uired. <n lieu thereof, the treat( 'a( be denounced even $ithout an eCpressed 6ustification for this action. ,uch denunciation is authoriBed under its Article 5-, viz& Article 5-. !" An( one of the )i%h Contractin% Parties 'a( denounce this convention b( a notification addressed to the Dovern'ent of the Republic of Poland, $hich shall at once infor' the Dovern'ent of each of the )i%h Contractin% Parties. 2" 2enunciation shall ta0e effect siC 'onths after the notification of denunciation, and shall operate onl( as re%ards the part( $hich shall have proceeded to denunciation. *bviousl(. re6ection of the treat(, $hether on the %round of re"us sic stanti"us or pursuant to Article 5-, is not a function of the courts but of the other branches of %overn'ent. This is a political act. The conclusion and renunciation of treaties is the prero%ative of the political depart'ents and 'a( not be usurped b( the 6udiciar(. The courts are concerned onl( $ith the interpretation and application of la$s and treaties in force and not $ith their $isdo' or efficac(. C. The petitioner claims that the lower court erred in ruling that the plaintiff must sue in the 'nited (tates% "ecause this would den$ him the right to access to our courts!

The petitioner alle%es that the eCpenses and difficulties he $ill incur in filin% a suit in the +nited ,tates $ould constitute a constructive denial of his ri%ht to access to our courts for the protection of his ri%hts. )e $ould conse7uentl( be deprived of this vital %uarant( as e'bodied in the Bill of Ri%hts. *bviousl(, the constitutional %uarant( of access to courts refers onl( to courts $ith appropriate 6urisdiction as defined b( la$. <t does not 'ean that a person can %o to an$court for redress of his %rievances re%ardless of the nature or value of his clai'. <f the petitioner is barred fro' filin% his co'plaint before our courts, it is because the( are not vested $ith the appropriate 6urisdiction under the #arsa$ Convention, $hich is part of the la$ of our land. << T)E <,,+E *1 ;+R<,2<CT<*N. A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw Convention is a rule merel$ of venue and was waived "$ defendant when it did not move to dismiss on the ground of improper venue! B( its o$n ter's, the Convention applies to all international transportation of persons perfor'ed b( aircraft for hire. <nternational transportation is defined in para%raph 2" of Article ! as follo$s& 2" 1or the purposes of this convention, the eCpression Ainternational transportationA shall 'ean an( transportation in $hich, accordin% to the contract 'ade b( the parties, the place of departure and the place of destination, $hether or not there be a brea0 in the transportation or a transship'ent, are situated EeitherF $ithin the territories of t$o )i%h Contractin% Parties . . . #hether the transportation is AinternationalA is deter'ined b( the contract of the parties, $hich in the case of passen%ers is the tic0et. #hen the contract of carria%e provides for the transportation of the passen%er bet$een certain desi%nated ter'inals A$ithin the territories of t$o )i%h Contractin% Parties,A the provisions of the Convention auto'aticall( appl( and eCclusivel( %overn the ri%hts and liabilities of the airline and its passen%er. ,ince the fli%ht involved in the case at bar is international, the sa'e bein% fro' the +nited ,tates to the Philippines and bac0 to the +nited ,tates, it is sub6ect to the provisions of the #arsa$ Convention, includin% Article 28 !", $hich enu'erates the four places $here an action for da'a%es 'a( be brou%ht. #hether Article 28 !" refers to 6urisdiction or onl( to venue is a 7uestion over $hich authorities are sharpl( divided. #hile the petitioner cites several cases holdin% that Article 28 !" refers to venue rather than 6urisdiction, 9 there are later cases cited b( the private respondent supportin% the

conclusion that the provision is 6urisdictional.

10

Genue and 6urisdiction are entirel( distinct 'atters. ;urisdiction 'a( not be conferred b( consent or $aiver upon d court $hich other$ise $ould have no 6urisdiction over the sub6ect/'atter of an action8 but the venue of an action as fiCed b( statute 'a( be chan%ed b( the consent of the parties and an ob6ection that the plaintiff brou%ht his suit in the $ron% count( 'a( be $aived b( the failure of the defendant to 'a0e a ti'el( ob6ection. <n either case, the court 'a( render a valid 6ud%'ent. Rules as to 6urisdiction can never be left to the consent or a%ree'ent of the parties, $hether or not a prohibition eCists a%ainst their alteration. 11 A nu'ber of reasons tends to support the characteriBation of Article 28 !" as a 6urisdiction and not a venue provision. 1irst, the $ordin% of Article 52, $hich indicates the places $here the action for da'a%es A'ustA be brou%ht, underscores the 'andator( nature of Article 28 !". ,econd, this characteriBation is consistent $ith one of the ob6ectives of the Convention, $hich is to Are%ulate in a unifor' 'anner the conditions of international transportation b( air.A Third, the Convention does not contain an( provision prescribin% rules of 6urisdiction other than Article 28 !", $hich 'eans that the phrase Arules as to 6urisdictionA used in Article 52 'ust refer onl( to Article 28 !". <n fact, the last sentence of Article 52 specificall( deals $ith the eCclusive enu'eration in Article 28 !" as A6urisdictions,A $hich, as such, cannot be left to the $ill of the parties re%ardless of the ti'e $hen the da'a%e occurred.

This issue $as anal(Bed in the leadin% case of (mith v! Canadian )acific Airwa$s% *td., 12 $here it $as

held&
. . . *f 'ore, but still inco'plete, assistance is the $ordin% of Article 28 2", especiall( $hen considered in the li%ht of Article 52. Article 28 2" provides that A7uestions of procedure shall be %overned b( the la$ of the court to $hich the case is sub'ittedA E'phasis supplied". ,ection 2" thus 'a( be read to leave for do'estic decision 7uestions re%ardin% the suitabilit( and location of a particular #arsa$ Convention case. <n other $ords, $here the 'atter is %overned b( the #arsa$ Convention, 6urisdiction ta0es on a dual concept. ;urisdiction in the international sense 'ust be established in accordance $ith Article 28 !" of the #arsa$ Convention, follo$in% $hich the 6urisdiction of a particular court 'ust be established pursuant to the applicable do'estic la$. *nl( after the 7uestion of $hich court has 6urisdiction is deter'ined $ill the issue of venue be ta0en up. This second 7uestion shall be %overned b( the la$ of the court to $hich the case is sub'itted. The petitioner sub'its that since Article 52 states that the parties are precluded Abefore the da'a%es occurredA fro' a'endin% the rules of Article 28 !" as to the place $here the action 'a( be brou%ht, it $ould follo$ that the #arsa$ Convention $as not intended to preclude the' fro' doin% so Aafter the da'a%es occurred.A Article 52 provides& Art. 52. An( clause contained in the contract and all special a%ree'ents entered into before the da'a%e occurred b( $hich the parties purport to infrin%e the rules laid do$n b( this convention, $hether b( decidin% the la$ to be applied, or b( alterin% the rules as to 6urisdiction, shall be null and void. Nevertheless for the transportation of %oods, arbitration clauses shall be allo$ed, sub6ect to this convention, if the arbitration is to ta0e place $ithin one of the 6urisdictions referred to in the first para%raph of Article 28. )is point is that since the re7uire'ents of Article 28 !" can be $aived Aafter the da'a%es shall have" occurred,A the article should be re%arded as possessin% the character of a AvenueA and not of a A6urisdictionA provision. )ence, in 'ovin% to dis'iss on the %round of lac0 of 6urisdiction, the private respondent has $aived i'proper venue as a %round to dis'iss. The fore%oin% eCa'ination of Article 28 !" in relation to Article 52 does not support this conclusion. <n an( event, $e a%ree that even %rantin% arguendo that Article 28 !" is a venue and not a 6urisdictional provision, dis'issal of the case $as still in order. The respondent court $as correct in affir'in% the rulin% of the trial court on this 'atter, thus& ,antos: clai' that N*A $aived venue as a %round of its 'otion to dis'iss is not correct. True it is that N*A averred in its M*T<*N T* 2<,M<,, that the %round thereof is Athe Court has no sub6ect 'atter 6urisdiction to entertain the Co'plaintA $hich ,ANT*, considers as e7uivalent to Alac0 of 6urisdiction over the sub6ect 'atter . . .A )o$ever, the %ist of N*A:s ar%u'ent in its 'otion is that the Philippines is not the proper place $here ,ANT*, could file the action H 'eanin% that the venue of the action is i'properl( laid. Even assu'in% then that the specified %round of the 'otion is erroneous, the fact is the proper %round of the 'otion H i'proper venue H has been discussed therein. #aiver cannot be li%htl( inferred. <n case of doubt, it 'ust be resolved in favor of non/$aiver if there are special circu'stances 6ustif(in% this conclusion, as in the petition at bar. As $e observed in +avier vs! &ntermediate Court of Appeals& 13 =e%all(, of course, the lac0 of proper venue $as dee'ed $aived b( the petitioners $hen the( failed to invo0e it in their ori%inal 'otion to dis'iss. Even so, the 'otivation of the private respondent should have been ta0en into account b( both the trial 6ud%e and the respondent court in arrivin% at their decisions. The petitioner also invo0es ,*- .o$al #utch Airlines v! .TC% 12 a decision of our Court of Appeals,

$here it $as held that Article 28 !" is a venue provision. )o$ever, the private respondent

avers that this $as in effect reversed b( the case of Aranas v! 'nited Airlines% 15 $here the sa'e court held that Article 28 !" is a 6urisdictional provision. Neither of these cases is bindin% on this Court, of course, nor $as either of the' appealed to us. Nevertheless, $e here eCpress our o$n preference for the later case of Aranas insofar as its pronounce'ents on 6urisdiction confor' to the 6ud%'ent $e no$ 'a0e in this petition.
B. The petitioner claims that the lower court erred in not ruling that under Article 28(1) of the Warsaw Convention% this case was properl$ filed in the )hilippines% "ecause -anila was the destination of the plaintiff! The Petitioner contends that the facts of this case are analo%ous to those in Aanestad v! Air Canada. 13 <n that case, Mrs. ,ilverber% purchased a round/trip tic0et fro' Montreal to =os

An%eles and bac0 to Montreal. The date and ti'e of departure $ere specified but not of the return fli%ht. The plane crashed $hile on route fro' Montreal to =os An%eles, 0illin% Mrs. ,ilverber%. )er ad'inistratriC filed an action for da'a%es a%ainst Air Canada in the +.,. 2istrict Court of California. The defendant 'oved to dis'iss for lac0 of 6urisdiction but the 'otion $as denied thus&
. . . <t is evident that the contract entered into bet$een Air Canada and Mrs. ,ilverber% as evidenced b( the tic0et boo0lets and the 1li%ht Coupon No. !, $as a contract for Air Canada to carr( Mrs. ,ilverber% to =os An%eles on a certain fli%ht, a certain ti'e and a certain class, but that the ti'e for her to return re'ained co'pletel( in her po$er. Coupon No. 2 $as onl( a continuin% offer b( Air Canada to %ive her a tic0et to return to Montreal bet$een certain dates. . . . The onl( conclusion that can be reached then, is that Athe place of destinationA as used in the #arsa$ Convention is considered b( both the Canadian C.T.C. and the +nited ,tates C.A.B. to describe at least t$o Aplaces of destination,A viz., the Aplace of destinationA of a particular fli%ht either an Aout$ard destinationA fro' the Apoint of ori%inA or fro' the Aout$ard point of destinationA to an( place in Canada. Thus the place of destination under Art. 28 and Art. ! of the #arsa$ Convention of the fli%ht on $hich Mrs. ,ilverber% $as 0illed, $as =os An%eles accordin% to the tic0et, $hich $as the contract bet$een the parties and the suit is properl( filed in this Court $hich has 6urisdiction. The Petitioner avers that the present case falls s7uarel( under the above rulin% because the date and ti'e of his return fli%ht to ,an 1rancisco $ere, as in the Aanestad case, also left open. Conse7uentl(, Manila and not ,an 1rancisco should be considered the petitioner:s destination. The private respondent for its part invo0es the rulin% in /utz v! /ritish Airwa$s, 14 $here the +nited

,tates 2istrict Court Eastern 2istrict of Penns(lvania" said&

. . . Althou%h the authorities $hich addressed this precise issue are not eCtensive, both the cases and the co''entators are al'ost unani'ous in concludin% that the Aplace of destinationA referred to in the #arsa$ Convention Ain a trip consistin% of several parts . . . is the ultimate destination that is accorded treat( 6urisdiction.A . . . But apart fro' that distin%uishin% feature, < cannot a%ree $ith the Court:s anal(sis in Aanestad8 $hether the return portion of the tic0et is characteriBed as an option or a contract, the carrier $as le%all( bound to transport the passen%er bac0 to the place of ori%in $ithin the prescribed ti'e and. the passen%er for her part a%reed to pa( the fare and, in fact, did pa( the fare. Thus there $as 'utualit( of obli%ation and a bindin% contract of carria%e, The fact that the passen%er could fore%o her ri%hts under the contract does not 'a0e it an( less a bindin% contract. Certainl(, if the parties did not conte'plate the return le% of the 6ourne(, the passen%er $ould not have paid for it and the carrier $ould not have issued a round trip tic0et. #e a%ree $ith the latter case. The place of destination, $ithin the 'eanin% of the #arsa$ Convention, is deter'ined b( the ter's of the contract of carria%e or, specificall( in this case, the tic0et bet$een the passen%er and the carrier. ECa'ination of the petitioner:s tic0et sho$s that his ulti'ate destination is ,an 1rancisco. Althou%h the date of the return fli%ht $as left open, the contract of carria%e bet$een the

parties indicates that N*A $as bound to transport the petitioner to ,an 1rancisco fro' Manila. Manila should therefore be considered 'erel( an a%reed stoppin% place and not the destination. The petitioner sub'its that the ButB case could not have overruled the Aanestad case because these decisions are fro' different 6urisdictions. But that is neither here nor there. <n fact, neither of these cases is controllin% on this Court. <f $e have preferred the ButB case, it is because, eCercisin% our o$n freedo' of choice, $e have decided that it represents the better, and correct, interpretation of Article 28 !". Article ! 2" also dra$s a distinction bet$een a AdestinationA and an Aa%reed stoppin% place.A <t is the AdestinationA and not an Aa%reed stoppin% placeA that controls for purposes of ascertainin% 6urisdiction under the Convention. The contract is a sin%le undivided operation, be%innin% $ith the place of departure and endin% $ith the ulti'ate destination. The use of the sin%ular in this eCpression indicates the understandin% of the parties to the Convention that ever( contract of carria%e has one place of departure and one place of destination. An inter'ediate place $here the carria%e 'a( be bro0en is not re%arded as a Aplace of destination.A C. The petitioner claims that the lower court erred in not ruling that under Art! 28(1) of the Warsaw Convention% this case was properl$ filed in the )hilippines "ecause the defendant has its domicile in the )hilippines! The petitioner ar%ues that the #arsa$ Convention $as ori%inall( $ritten in 1rench and that in interpretin% its provisions, A'erican courts have ta0en the broad vie$ that the 1rench le%al 'eanin% 'ust %overn. 18 <n 1rench, he sa(s, the Ado'icileA of the carrier 'eans ever( place $here it has

a branch office.
The private respondent notes, ho$ever, that in Compagnie 0ationale Air 1rance vs! 2ili"erto, 19 it $as

held&
The plaintiffs: first contention is that Air 1rance is do'iciled in the +nited ,tates. The( sa( that the do'icile of a corporation includes an( countr( $here the airline carries on its business on Aa re%ular and substantial basis,A and that the +nited ,tates 7ualifies under such definition. The 'eanin% of do'icile cannot, ho$ever, be so eCtended. The do'icile of a corporation is custo'aril( re%arded as the place $here it is incorporated, and the courts have %iven the 'eanin% to the ter' as it is used in article 28 !" of the Convention. (ee ,'ith v. Canadian Pacific Air$a(s, =td. 2d Cir. !-4!", 9?2 12d 4-8, 8328 Nudo v. ,ociete Anon('e Bel%e d: ECploitation de la Navi%ation Aerienne ,abena Bel%ian #orld Airlines E.2. pa. !-.2". 234 1. ,upp, !-!8 Iarfun0el v. Co'pa%nie Nationale Air 1rance ,.2.N.>. !-44", 924 1. ,uppl. -4!, -49". Moreover, the structure of article 28 !", vie$ed as a $hole, is also inco'patible $ith the plaintiffs: clai'. The article, in statin% that places of business are a'on% the bases of the 6urisdiction, sets out t$o places $here an action for da'a%es 'a( be brou%ht8 the countr( $here the carrier:s principal place of business is located, and the countr( in $hich it has a place of business throu%h $hich the particular contract in 7uestion $as 'ade, that is, $here the tic0et $as bou%ht, Adoptin% the plaintiffs: theor( $ould at a 'ini'u' blur these carefull( dra$n distinctions b( creatin% a third inter'ediate cate%or(. <t $ould obviousl( introduce uncertaint( into liti%ation under the article because of the necessit( of havin% to deter'ine, and $ithout standards or criteria, $hether the a'ount of business done b( a carrier in a particular countr( $as Are%ularA and Asubstantial.A The plaintiff:s re7uest to adopt this basis of 6urisdiction is in effect a re7uest to create a ne$ 6urisdictional standard for the Convention. 1urther'ore, it $as ar%ued in another case 20 that& . . . <n arrivin% at an interpretation of a treat( $hose sole official lan%ua%e is 1rench, are $e bound to appl( 1rench la$J . . . #e thin0 this 7uestion and the underl(in% choice of la$ issue $arrant so'e discussion . . . #e do not thin0 this state'ent can be re%arded as a conclusion that internal 1rench la$ is to be AappliedA in the choice of la$ sense, to deter'ine the 'eanin% and scope of the Convention:s ter's. *f course, 1rench le%al usa%e 'ust be considered in arrivin% at an accurate En%lish translation of the 1rench. But $hen an

accurate En%lish translation is 'ade and a%reed upon, as here, the in7uir( into 'eanin% does not then revert to a 7uest for a past or present 1rench la$ to be AappliedA for revelation of the proper scope of the ter's. <t does not follo$ fro' the fact that the treat( is $ritten in 1rench that in interpretin% it, $e are forever chained to 1rench la$, either as it eCisted $hen the treat( $as $ritten or in its present state of develop'ent. There is no su%%estion in the treat( that 1rench la$ $as intended to %overn the 'eanin% of #arsa$:s ter's, nor have $e found an( indication to this effect in its le%islative histor( or fro' our stud( of its application and interpretation b( other courts. <ndeed, anal(sis of the cases indicates that the courts, in interpretin% and appl(in% the #arsa$ Convention, have, not considered the'selves bound to appl( 1rench la$ si'pl( because the Convention is $ritten in 1rench. . . . #e a%ree $ith these rulin%s. Notabl(, the do'icile of the carrier is onl( one of the places $here the co'plaint is allo$ed to be filed under Article 28 !". B( specif(in% the three other places, to $it, the principal place of business of the carrier, its place of business $here the contract $as 'ade, and the place of destination, the article clearl( 'eant that these three other places $ere not co'prehended in the ter' Ado'icile.A 2. The petitioner claims that the lower court erred in not ruling that Art! 28(1) of the Warsaw Convention does not appl$ to actions "ased on tort! The petitioner alle%es that the %rava'en of the co'plaint is that private respondent acted arbitraril( and in bad faith, discri'inated a%ainst the petitioner, and co''itted a $illful 'isconduct because it canceled his confir'ed reservation and %ave his reserved seat to so'eone $ho had no better ri%ht to it. <n short. the private respondent co''itted a tort. ,uch alle%ation, he sub'its, re'oves the present case fro' the covera%e of the #arsa$ Convention. )e ar%ues that in at least t$o A'erican cases, 21 it $as held that Article 28 !" of the #arsa$

Convention does not appl( if the action is based on tort.

This position is ne%ated b( 3usserl v! (wiss Air Transport Compan$% 22 $here the article in 7uestion

$as interpreted thus&

. . . Assu'in% for the present that plaintiff:s clai' is AcoveredA b( Article !4, Article 29 clearl( eCcludes an( relief not provided for in the Convention as 'odified b( the Montreal A%ree'ent. <t does not, ho$ever, li'it the 0ind of cause of action on $hich the relief 'a( be founded8 rather it provides that an( action based on the in6uries specified in Article !4 Aho$ever founded,A i!e!, re%ardless of the t(pe of action on $hich relief is founded, can onl( be brou%ht sub6ect to the conditions and li'itations established b( the #arsa$ ,(ste'. Presu'abl(, the reason for the use of the phrase Aho$ever founded,A in t$o/fold& to acco''odate all of the 'ultifarious bases on $hich a clai' 'i%ht be founded in different countries, $hether under code la$ or co''on la$, $hether under contract or tort, etc.8 and to include all bases on $hich a clai' see0in% relief for an in6ur( 'i%ht be founded in an( one countr(. <n other $ords, if the in6ur( occurs as described in Article !4, an( relief available is sub6ect to the conditions and li'itations established b( the #arsa$ ,(ste', re%ardless of the particular cause of action $hich for's the basis on $hich a plaintiff could see0 relief . . . The private respondent correctl( contends that the alle%ation of $illful 'isconduct resultin% in a tort is insufficient to eCclude the case fro' the co'prehension of the #arsa$ Convention. The petitioner has apparentl( 'isconstrued the i'port of Article 2? l" of the Convention, $hich reads as follo$s& Art. 2? !". The carrier shall not be entitled to avail hi'self of the provisions of this Convention $hich eCclude or li'it his liabilit(. if the da'a%e is caused b( his $illful 'isconduct or b( such default on his part as, in accordance $ith the la$ of the court to $hich the case is sub'itted, is considered to be e7uivalent to $illful 'isconduct. <t is understood under this article that the court called upon to deter'ine the applicabilit( of the li'itation provision 'ust first be vested $ith the appropriate 6urisdiction. Article 28 !" is the provision in the Convention $hich defines that 6urisdiction. Article 22 23 'erel( fiCes the 'onetar( ceilin% for the

liabilit( of the carrier in cases covered b( the Convention. <f the carrier is indeed %uilt( of

$illful 'isconduct, it can avail itself of the li'itations set forth in this article. But this can be done onl( if the action has first been co''enced properl( under the rules on 6urisdiction set forth in Article 28 !".
<<< T)E <,,+E *1 PR*TECT<*N T* M<N*R, The petitioner calls our attention to Article 29 of the Civil Code, $hich states& Art. 29. <n all contractual propert( or other relations, $hen one of the parties is at a disadvanta%e on account of his 'oral dependence, i%norance, indi%ence, 'ental $ea0ness, tender a%e or other handicap, the courts 'ust be vi%ilant for his protection. Application of this article to the present case is 'isplaced. The above provision assu'es that the court is vested $ith 6urisdiction to rule in favor of the disadvanta%ed 'inor, As alread( eCplained, such 6urisdiction is absent in the case at bar. C*NC=+,<*N A nu'ber of countries have si%nified their concern over the proble' of citiBens bein% denied access to their o$n courts because of the restrictive provision of Article 28 !" of the #arsa$ Convention. A'on% these is the +nited ,tates, $hich has proposed an a'end'ent that $ould enable the passen%er to sue in his o$n do'icile if the carrier does business in that 6urisdiction. The reason for this proposal is eCplained thus& <n the event a +, citiBen te'poraril( residin% abroad purchases a Ro'e to Ne$ >or0 to Ro'e tic0et on a forei%n air carrier $hich is %enerall( sub6ect to the 6urisdiction of the +,, Article 28 $ould prevent that person fro' suin% the carrier in the +, in a A#arsa$ CaseA even thou%h such a suit could be brou%ht in the absence of the Convention. The proposal $as incorporated in the Duate'ala Protocol a'endin% the #arsa$ Convention, $hich $as adopted at Duate'ala Cit( on March 8, !-4!. 22 But it is still ineffective because it has not (et been ratified b( the re7uired 'ini'u'

nu'ber of contractin% parties. Pendin% such ratification, the petitioner $ill still have to file his co'plaint onl( in an( of the four places desi%nated b( Article 28 !" of the #arsa$ Convention.
The proposed a'end'ent bolsters the rulin% of this Court that a citiBen does not necessaril( have the ri%ht to sue in his o$n courts si'pl( because the defendant airline has a place of business in his countr(. The Court can onl( s('pathiBe $ith the petitioner, $ho 'ust prosecute his clai's in the +nited ,tates rather than in his o$n countr( at least inconvenience. But $e are unable to %rant hi' the relief he see0s because $e are li'ited b( the provisions of the #arsa$ Convention $hich continues to bind us. <t 'a( not be a'iss to observe at this point that the 'ere fact that he $ill have to liti%ate in the A'erican courts does not necessaril( 'ean he $ill liti%ate in vain. The 6udicial s(ste' of that countr( in 0no$n for its sense of fairness and, %enerall(, its strict adherence to the rule of la$. #)ERE1*RE, the petition is 2EN<E2, $ith costs a%ainst the petitioner. <t is so ordered. 0arvasa% C!+!% 2utierrez% +r!% )aras% 1eliciano% )adilla% /idin% 2ri4o5A uino% -edialdea% .egalado% #avide% +r!% .omero% 0ocon and /ellosillo% ++!% concur!

0oo"no"e! ! AnneC AA,A *ri%. Records, pp. 9/?.

2 &"id., pp. 23?/2348 penned b( ;ud%e Pedro N. =a%%ui. 5 .ollo, p. .38 penned b( Buena, +., $ith DonBa%a/Re(es and Abad ,antos, ;r., ++., concurrin%. 9 &"id., p. 4-. ? ?! *.D. 9-55/9-59. . Association of ,'all =ando$ners in the Philippines, <nc. v. ,ecretar( of A%rarian Refor', !4? ,CRA 5958 2u'lao v. Co'elec, -? ,CRA 5-2. 4 A Modern =a$ of Nations !-?3", p. !?3. 8 ?28 1. 2d 5!. - Berner v. +nited Airlines, <nc., !9- N>, 2d, 55?, 595, !-?.8 2oerin% v. ,candinavian Airlines ,(ste', 52- 1 ,upp !38!, !382, !-4!8 ,pencer v. North$est *rient Airlines, 23! 1. ,upp. ?39, ?3., !-.2. !3 ,'ith v. Canadian Pacific Air$a(s =td., 9?2 1. 2d 4-8 !-4!8 Ca'pa%nie Nationale Air 1rance v. Diliberto, !858 N.E., 2d -44, !-488 MacCarth( v. East African Air$a(s Corp., !5 Av !4, 58?, Records, p. !!5, !-498 ,abhar$al v. Iu$ait Air$a(s Corp., !8 Av 8, 5838 Records, p. !!?, !-89& 2uff v. Gari% Airlines, <nc., ,.A., 22 Avi, .ollo, p. !8., !-8-. !! 1rancisco, Rules of Court, Gol. <, !-45, p. 55!. !2 9?2 1. 2d 4-8. !5 !4! ,CRA .3?. !9 CA D.R./,P No. 3-2?-, ;anuar( 22, !-84. !? CA D.R./CG No. !--49, April 8, !--!. !. 5-3 1. ,upp. !!.?, !-4?. !4 92! 1. ,uppl. !24. !8 Bloc0 v. Co'pa%nie, 58. 1. 2d 252. !- 858 N.E. 2d -44, !-48. 23 Ros'an v. T#A, !-498 59 N> 2d 58?8 5?8 N>, 2d -48 5!9 N.E. 2d 8988 42 A.=.R. 5d !282. 2! Ec0 v. +nited Arab, ,.A.A., 29! 1. ,upp. 839/8348 ,pencer v. North$est *rient Airlines, 23! 1. ,upp. ?39/?34. 22 .ollo, pp. !8-/!--8 588 1. ,upp. !258. 25 Article 22. !" <n the transportation of passen%ers, the liabilit( of the carrier for each passen%er shall be li'ited to the su' of !2?,333 francs. #here in accordance $ith the la$ of the court to $hich the case is sub'itted, da'a%es 'a( be a$arded in the for' of periodical pa('ents, the e7uivalent capital value of the said pa('ents shall not eCceed !2?,333 francs. Nevertheless, b( special contract, the carrier and the passen%er 'a( a%ree to a hi%her li'it of liabilit(.

2" <n the transportation of chec0ed ba%%a%e and of %oods, the liabilit( of the carrier shall be li'ited to a su' of 2?3 francs per 0ilo%ra', unless the consi%nor has 'ade, at the ti'e $hen the pac0a%e $as handed over to the carrier, a special declaration of the value of deliver( and has paid a supple'entar( su' if the case so re7uires. <n that case the carrier $ill be liable to pa( a su' not eCceedin% the declared su', unless he proves that the su' is %reater than the actual value to the consi%nor at deliver(. 5" As re%ards ob6ects of $hich the passen%er ta0es char%e hi'self, the liabilit( of the carrier shall be li'ited to ?,333 francs per passen%er. 9" The su's 'entioned above shall be dee'ed to refer to the 1rench franc consistin% of .?/!K2 'illi%ra's of %old at the standard of fineness of nine hundred thousandths. These su's 'a( be converted into an( national currenc( in round fi%ures. 29 Gar0on(i v. ,.A. <'press 2e Giacao Airea Rio Drandense Gari%" !-428 55. N>, 2d !-45.