AUGUSTO BENEDICTO SANTOS III, REPRESENTED BY HIS FATHER AND LEGAL GUARDIAN, AUGUSTO BENEDICTO SANTOS, PETITIONER, VS. NORTHWEST ORIENT AIRLINES AND COURT OF APPEALS, RESPONDENTS.

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 wait-listed.

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 a 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 studied and determined to be
constitutional before it was adopted and given the force of law in this
country.

The petitioner’s allegations are not convincing enough to
overcome this presumption. Apparently,
the Convention considered the four places designated in Article 28 the most
convenient forums for the litigation of any claim that may arise between the
airline and its passenger, as distinguished from all other places. At any rate, we agree with the respondent court
that this case can be decided on other grounds without the necessity of
resolving the constitutional issue.

B. The petitioner claims that the lower court
erred in not ruling that Art. 28(1) of the Warsaw Convention is inapplicable
because of a fundamental change in the circumstances that served as its basis.

The petitioner goes at great lengths to show that the provisions
in the Convention were intended to protect airline companies under “the
conditions prevailing then and which have long ceased to exist.” He argues
that in view of the significant developments in the airline industry through
the years, the treaty has become irrelevant. Hence, to the extent that it has lost its basis for approval, it has become
unconstitutional.

The petitioner is invoking the doctrine of rebus sic stantibus. According to Jessup, “this doctrine
constitutes an attempt to formulate a legal principle which would justify
non-performance of a treaty obligation if the conditions with relation to which
the parties contracted have changed so materially and so unexpectedly as to
create a situation in which the exaction of performance would be
unreasonable.”^[7]
The key element of this doctrine is the vital change in the condition of the
contracting parties that they could not have foreseen at the time the treaty
was concluded.

The Court notes in this connection the following observation made
in Day v. Trans World Airlines, Inc.:^[8]

The Warsaw drafters wished to create a system of liability rules
that would cover all the hazards of air travel x x x The Warsaw delegates knew
that, in the years to come, civil aviation would change in ways that they could
not foresee. They wished to design a
system of air law that would be both durable and flexible enough to keep pace
with these changes. xxx The
ever-changing needs of the system of civil aviation can be served within the
framework they created.

It is true that at the time the Warsaw Convention was drafted,
the airline industry was still in its infancy. However, that circumstance alone is not sufficient justification for the
rejection of the treaty at this time. The changes recited by the petitioner were, realistically, not entirely
unforeseen although they were expected in a general sense only. In fact, the Convention itself, anticipating
such developments, contains the following significant provision:

Article 41. Any High
Contracting Party shall be entitled not earlier than two years after the coming
into force of this convention to call for the assembling of a new international
conference in order to consider any improvements which may be made in this
convention. To this end, it will
communicate with the Government of the French Republic which will take the
necessary measures to make preparations for such conference.

But the more important consideration is that the treaty has not
been rejected by the Philippine government. The doctrine of rebus sic stantibus does not operate
automatically to render the treaty inoperative. There is a 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:

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
right. 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 x x x.

Whether the transportation is “international” is
determined by the contract of the parties, which in the case of passengers is
the ticket. When the contract of
carriage provides for the transportation of the passenger between certain
designated terminals “within the territories of two High Contracting
Parties,” the provisions of the Convention automatically apply and
exclusively govern the rights and liabilities of the airline and its passenger.

Since the flight involved in the case at bar is international,
the same being from the United States to the Philippines and back to the United
States, it is subject to the provisions of the Warsaw Convention, including
Article 28(1), which enumerates the four places where an action for damages may
be brought.

Whether Article 28(1) refers to jurisdiction or only to venue is
a question over which authorities are sharply divided. While the petitioner cites several cases
holding that Article 28(1) refers to venue rather than jurisdiction,^[9]
there are later cases cited by the private respondent supporting the conclusion
that the provision is jurisdictional.^[10]

Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by consent
or waiver upon a court which otherwise would have no jurisdiction over the
subject-matter of an action; but the venue of an action as fixed by statute may
be changed by the consent of the parties and an objection that the plaintiff
brought his suit in the wrong county may be waived by the failure of the
defendant to make a timely objection. In either case, the court may render a valid judgment. Rules as to jurisdiction can never be left
to the consent or agreement of the parties, whether or not a prohibition exists
against their alteration.^[11]

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.

This issue was analyzed in the leading case of Smith v. Canadian
Pacific Airways, Ltd.,^[12]
where it was held:

x x x Of more, but still incomplete, assistance is the wording of
Article 28(2), especially when considered in the light of Article 32. Article 28(2) provides that “questions
of procedure shall be governed by the law of the court to which the case
is submitted” (Emphasis supplied). Section (2) thus may be read to leave for domestic decision questions
regarding the suitability and location of a particular Warsaw Convention
case.”

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.

The petitioner submits that since Article 32 states that the
parties are precluded “before the damages occurred” from amending the
rules of Article 28(1) as to the place where the action may be brought, it
would follow that the Warsaw Convention was not intended to preclude them from
doing so “after the damages occurred.”

Article 32 provides:

Article 32. Any clause
contained in the contract and 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.

His point is that since the requirements of Article 28(1) can be
waived “after the damages (shall have) occurred,” the article should
be regarded as possessing the character of a “venue” and not of a
“jurisdiction” provision. Hence, in moving to dismiss on the ground of lack of jurisdiction, the
private respondent has waived improper venue as a ground to dismiss.

The foregoing examination of Article 28(1) in relation to Article
32 does not support this conclusion. In
any event, we agree that even granting arguendo that Article 28(1) is a
venue and not a jurisdictional provision, dismissal of the case was still in
order. The respondent court was correct
in affirming the ruling of the trial court on this matter, thus:

Santos’ claim that NOA waived venue as a ground of its motion to
dismiss is not correct. True it is that
NOA averred in its MOTION TO DISMISS that the ground thereof is “the Court
has no subject matter jurisdiction to entertain the Complaint” which
SANTOS considers as equivalent to “lack of jurisdiction over the subject
matter…” However, the gist of NOA’s argument in its motion is that the
Philippines is not the proper place where SANTOS could file the action –
meaning that the venue of the action is improperly laid. Even assuming then that the specified ground
of the motion is erroneous, the fact is the proper ground of the motion –
improper venue – has been discussed therein.

Waiver cannot be lightly inferred. In case of doubt, it must be resolved in favor of non-waiver if there
are special circumstances justifying this conclusion, as in the petition at
bar. As we observed in Javier vs.
Intermediate Court of Appeals:^[13]

Legally, of course, the lack of proper venue was deemed waived by
the petitioners when they failed to invoke it in their original motion to
dismiss. Even so, the motivation of the
private respondent should have been taken into account by both the trial judge
and the respondent court in arriving at their decisions.

The petitioner also invokes KLM Royal Dutch Airlines v. RTC,^[14]
a decision of our Court of Appeals, where it was held that Article 28(1) is a
venue provision. However, the private
respondent avers that this was in effect reversed by the case of Aranas v.
United Airlines,^[15]
where the same court held that Article 28(1) is a jurisdictional
provision. Neither of these cases is
binding on this Court, of course, nor was either of them appealed to us. Nevertheless, we here express our own
preference for the later case of Aranas insofar as its pronouncements on
jurisdiction conform to the judgment we now make 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 properly filed in the Philippines, because Manila was the destination
of the plaintiff.

The petitioner contends that the facts of this case are analogous
to those in Aanestad v. Air Canada.^[16] In
that case, Mrs. Silverberg purchased a round-trip ticket from Montreal to Los
Angeles and back to Montreal. The date and
time of departure were specified but not of the return flight. The plane crashed while en route from
Montreal to Los Angeles, killing Mrs. Silverberg. Her administratrix filed an action for damages against Air Canada
in the U.S. District Court of California. The defendant moved to dismiss for lack of jurisdiction but the motion
was denied thus:

x x x It is evident that the contract entered into between Air
Canada and Mrs. Silverberg as evidenced by the ticket booklets and the Flight
Coupon No. 1, was a contract for Air Canada to carry Mrs. Silverberg to Los
Angeles on a certain flight, a certain time and a certain class, but that the
time for her to return remained completely in her power. Coupon No. 2 was only a continuing offer by
Air Canada to give her a ticket to return to Montreal between certain
dates. x x x

The only conclusion that can be reached then, is that “the
place of destination” as used in the Warsaw Convention is considered by
both the Canadian C.T.C. and the United States C.A.B. to describe at least two
“places of destination,” viz., the “place of
destination” of a particular flight either an “outward
destination” from the “point of origin” or from the
“outward point of destination” to any place in Canada.

Thus the place of destination under Art. 28 and Art. 1 of the
Warsaw Convention of the flight on which Mrs. Silverberg was killed, was Los
Angeles according to the ticket, which was the contract between the parties and
the suit is properly filed in this Court which has jurisdiction.

The petitioner avers that the present case falls squarely under
the above ruling because the date and time of his return flight to San
Francisco were, as in the Aanestad case, also left open. Consequently, Manila and not San Francisco
should be considered the petitioner’s destination.

The private respondent for its part invokes the ruling in Butz v.
British Airways,^[17]
where the United States District Court (Eastern District of Pennsylvania) said:

x x x Although the authorities which addressed this precise issue
are not extensive, both the cases and the commentators are almost unanimous in
concluding that the “place of destination” referred to in the Warsaw
Convention “in a trip consisting of several parts . . . is the ultimate
destination that is accorded treaty jurisdiction.” x x x

But apart from that distinguishing feature, I cannot agree with the
Court’s analysis in Aanestad; whether the return portion of the ticket
is characterized as an option or a contract, the carrier was legally bound to
transport the passenger back to the place of origin within the prescribed time
and the passenger for her part agreed to pay the fare and, in fact, did pay the
fare. Thus there was mutuality of
obligation and a binding contract 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 as 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:

xxx In arriving at an interpretation of a treaty whose sole
official language is French, are we bound to apply French law? xxx We think this question and the
underlying choice of law issue warrant some discussion. xxx 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
Convention’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 into 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. xxx

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:

x x x 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

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 with 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.

Application of this article to the present case is
misplaced. The above provision assumes
that the court is vested with jurisdiction to rule in favor of the
disadvantaged minor. As already
explained, such jurisdiction is absent in the case at bar.

CONCLUSION

A number of countries have signified their concern over the
problem of citizens being denied access to their own courts because of the
restrictive provision of Article 28(1) of the Warsaw Convention. Among these is the United States, which has
proposed an amendment that would enable the passenger to sue in his own
domicile if the carrier does business in that jurisdiction. The reason for this proposal is explained
thus:

In the event a US citizen
temporarily residing abroad purchases a Rome to New York to Rome ticket on a
foreign air carrier which is generally subject to the jurisdiction of the US,
Article 28 would prevent that person from suing the carrier in the US in a
“Warsaw Case” even though such a suit could be brought in the absence
of the Convention.

The proposal was incorporated in the Guatemala Protocol amending
the Warsaw Convention, which was adopted at Guatemala City on March 8, 1971.^[24]
But it is still ineffective because it has not yet been ratified by the
required minimum number of contracting parties. Pending such ratification, the petitioner will still have to file
his complaint only in any of the four places designated by Article 28(1) of the
Warsaw Convention.

The proposed amendment bolsters the ruling of this Court that a
citizen does not necessarily have the right to sue in his own courts simply
because the defendant airline has a place of business in his country.

The Court can only sympathize with the petitioner, who must
prosecute his claims in the United States rather than in his own country at
less inconvenience. But we are unable
to grant him the relief he seeks because we are limited by the provisions of
the Warsaw Convention which continues to bind us. It may not be amiss to observe at this point that the mere fact
that he will have to litigate in the American courts does not necessarily mean
he will litigate in vain. The judicial
system of that country is known for its sense of fairness and, generally, its
strict adherence to the rule of law.

WHEREFORE, the petition is DENIED, with costs against the
petitioner. It is so ordered.

Narvasa, C.J., Gutierrez, Jr., Paras, Feliciano, Padilla,
Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon, and Bellosillo, JJ., concur.

---

^[1]
Annex “A,” Orig. Records, pp. 4-5.

^[2]
Ibid., pp. 205-207; penned by Judge Pedro N. Laggui.

^[3]
Rollo, p. 60; penned by Buena, J., with Gonzaga-Reyes and Abad Santos,
Jr., JJ., concurring.

^[4]
Ibid., p. 79.

^[5]
51 O.G. 4933-4934.

^[6]
Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform, 175 SCRA 343; Dumlao v. Comelec, 95 SCRA 392.

^[7]
A Modern Law of Nations (1950), p. 150.

^[8]
528 F. 2d 31.

^[9]
Berner v. United Airlines, Inc., 149 NYS 2d, 335, 343, 1956; Doering v.
Scandinavian Airlines System, 329 F Supp 1081, 1082, 1971; Spencer v.
Northwest Orient Airlines, 201 F. Supp. 504, 506, 1962.

^[10]
Smith v. Canadian Pacific Airways Ltd., 452 F. 2d 798 1971; Campagnie
Nationale Air France v. Giliberto, 1838 N.E., 2d 977, 1978; MacCarthy v.
East African Airways Corp., 13 Av 17, 385, Records, p. 113, 1974; Sabharwal v.
Kuwait Airways Corp., 18 Av 8, 380; Records, p. 115, 1984; Duff v. Varig
Airlines, Inc., S.A., 22 Avi, Rollo, p. 186, 1989.

^[11]
Francisco, Rules of Court, Vol. I, 1973, p. 331.

^[12]
452 F. 2d 798.

^[13]
171 SCRA 605.

^[14]
CA G.R.-SP No. 09259, January 22, 1987.

^[15]
CA G.R.-CV No. 19974, April 8, 1991.

^[16]
390 F. Supp. 1165, 1975.

^[17]
421 F. Suppl. 127.

^[18]
Block v. Compagnie, 386 F. 2d 232.

^[19]
838 N.E. 2d 977, 1978.

^[20]
Rosman v. TWA, 1974; 34 NY 2d 385; 358 NYS 2d 97; 314 N.E. 2d 848; 72
A.L.R. 3d 1282.

^[21]
Eck v. United Arab, S.A.A., 241 F. Supp. 804-807; Spencer v.
Northwest Orient Airlines, 201 F. Supp. 504-507.

^[22]
Rollo, pp. 189-199; 388 F. Supp. 1238.

^[23]
Article 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. 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 125,00 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
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.

^[24]
Varkonyi v. S.A. Impresa De Viacao Airea Rio Grandense (Varig) 1972; 336
NYS 2d 1973.