NORBERTO QUISUMBING, SR., AND GUNTHER LOEFFLER, PETITIONERS, VS. COURT OF APPEALS AND PHILIPPINE AIR LINES, INC., RESPONDENTS.

Having met with no success in the Court of First Instance of Rizal and in the Court of Appeals, the petitioners are now
in this Court in a third and final attempt to recover from the Philippine
Airlines, Inc. (hereafter, simply PAL) the value of jewelry, other valuables
and money taken from them by four (4) armed robbers on board one of the
latter’s airplanes while on a flight from Mactan City
to Manila, as well as moral and exemplary damages, attorney’s fees and expenses
of litigation.

The petitioners accept the correctness of the basic facts adopted
by the Court of Appeals from the judgment of the Court of First Instance, to
wit:^[1]

1. ” ** Norberto Quisumbing, Sr. and
Gunther Loeffler were among
the passengers of ** (PAL’s) Fokker ‘Friendship’
PIC-536 plane in its flight of November
6, 1968 which left Mactan
City at about 7:30 in the evening with Manila
for its destination.”

2. “After the plane had taken off, Florencio
O. Villarin, a Senior NBI Agent who was also a
passenger of the said plane, noticed a certain ‘Zaldy,’
a suspect in the killing of Judge Valdez, seated at the front seat near the
door leading to the cockpit of the plane. 
A check by Villarin with the passengers’
ticket in the possession of flight Stewardess Annie Bontigao,
who was seated at the last seat right row, revealed that ‘Zaldy‘
had used the name ‘Cardente,’ one of his aliases
known to Villarin. Villarin
also came to know from the stewardess that ‘Zaldy‘
had three companions on board the plane.”

3. “Villarin then scribbled a note
addressed to the pilot of the plane requesting the latter to contact NBI duty
agents in Manila for the said agents to ask the Director of the NBI to send
about six NBI agents to meet the plane because the suspect in the killing of
Judge Valdez was on board (Exh. ‘G’).  The said note was handed by Villarin to the stewardess who in turn gave the same to the
pilot.”

4. “After receiving the note, which was about 15 minutes after
take off, the pilot of the plane, Capt. Luis Bonnevie,
Jr., came out of the cockpit and sat beside Villarin
at the rear portion of the plane and explained that he could not send the
message because it would be heard by all ground aircraft stations.  Villarin, however,
told the pilot of the danger of commission of violent acts on board the plane
by the notorious.  ‘Zaldy‘ and
his three companions.”

5. “While the pilot and Villarin
were talking, ‘Zaldy‘ and one of his companions
walked to the rear and stood behind them. 
Capt. Bonnevie then stood up and went back to
the cockpit.  ‘Zaldy‘
and his companions returned to their seats, but after a few minutes they moved
back to the rear throwing ugly looks at Villarin who,
sensing danger, stood up and went back to his original seat across the aisle on
the second to the last seat near the window. 
‘Zaldy‘ and his companion likewise went back
to their respective seats in front.”

6. “Soon thereafter an exchange of gunshots ensued between Villarin and ‘Zaldy‘ and the
latter’s companions.  ‘Zaldy‘ announced to the passengers and the pilots in the
cockpit that it was a hold-up and ordered the pilot not to send any SOS.  The hold-uppers divested the passengers of
their belongings.”

7. “Specifically, ** Norberto Quisumbing,
Sr. was divested of jewelries and cash in the total amount of P18,650.00 out of
which recoveries were made amounting to P4,550.00.  ** Gunther Loeffler was divested of a wrist watch, cash and a wallet
in the total amount of P1,700.00.  As a
result of the incident ** Quisumbing, Sr. suffered
shock, because a gun had been pointed at him by one of the hold?
uppers.”

8. “Upon landing at the Manila
International Airport,
‘Zaldy‘ and his three companions succeeded in
escaping.”

Demands were thereafter made on PAL by Quisumbing
and Loeffler “to indemnify ** (them) on their
aforesaid loss, but ** (PAL) refused ** (averring that) it is not liable to
(them) in law or in fact.”^[2]

Contending that the “aforesaid loss is a result of breach of
** (PAL’s) contractual obligation to carry ** (them)
and their belongings and effects to their Manila destination without loss or
damage, and constitutes a serious dereliction of ** (PAL’s)
legal duty to exercise extraordinary diligence in the vigilance over the
same,” Quisumbing and Loeffler
brought suit against PAL in the Court of First Instance of Rizal,
as stated in this opinion’s opening paragraph, to recover the value of the
property lost by them to the robbers as well as moral and exemplary damages,
attorney’s fees and expenses of litigation.^[3]
The plaintiffs declared that their suit was instituted ” ** pursuant to
Civil Code articles 1754, 1998, 2000 and 2001 and on the ground that in
relation to said Civil Code article 2001 the complained-of act of the armed
robbers is not a force majeure, as the ‘use of arms’ or ‘irresistible force’
was not taken advantage of by said armed robbers in gaining entrance to
defendant’s ill-fated plane in questions. 
And, with respect to said Civil Code article 1998, it is not essential
that the lost effects and belongings of plaintiffs were actually delivered to
defendant’s plane personnel or that the latter were notified thereof (De los Santos v. Tam Khey,
[CA] 58 O.G. 7693).”^[4]

PAL filed answer denying liability, alleging inter alia that the robbery during the flight and
after the aircraft was forcibly landed at the Manila Airport did indeed
constitute force majeure, and
neither of the plaintiffs had notified PAL “or its crew or employees that
they were in possession of cash, German marks and valuable jewelries and
watches” or surrendered said items to “the crew or personnel on board
the aircraft.”^[5]

After trial, the Court of First Instance rendered judgment
“dismissing plaintiffs’ complaint with costs against ** (them).”^[6]
The Court opined that since the plaintiffs “did not notify defendant or
its employees that they were in possession of the cash, jewelries, and the
wallet they are now claiming,” the very provision of law invoked by them,
Article 1998 of the Civil Code, denies them any recourse against PAL.  The Court also pointed out that –

” ** while it is true that the use of
arms was not taken advantage of by the robbers in gaining entrance to
defendant’s ill-fated plane, the armed robbery that took place constitutes force majeure for which defendant is not liable
because the robbers were able to gain entrance to the plane with the guns they
used already in their possession, which fact could not have been prevented nor
avoided by the defendant since it was not authorized to search its passengers
for firearms and deadly weapons as shown in Exhibits ‘6,’ ‘7,’ ‘8,’ and ‘8-A.’
As its robbery constitutes force majeure, defendant is not liable.”

The plaintiffs appealed to the Court of Appeals.^[7]
That Court affirmed the trial court’s judgment.^[8]
It rejected the argument that “the use or arms or ** irresistible
force” referred to in Article 2001 constitutes force majeure only if resorted to to gain entry into the airplane, and not if it attends
“the robbery itself.” The Court ruled that under the facts, “the
highjacking-robbery was force majeure,”
observing that –

” ** hijackers do not board an
airplane through a blatant display of firepower and violent fury.  Firearms, hand-grenades, dynamite, and
explosives are introduced into the airplane surreptitiously and with the utmost
cunning and stealth, although there is an occasional use of innocent hostages
who will be coldly murdered unless a plane is given to the hijackers’ complete
disposal.  The objective of modern-day
hijackers is to display the irresistible force amounting to force majeure only when it is most effective and that is when the
jetliner is winging its way at Himalayan altitudes and ill-advised heroics by
either crew or passengers would send the multi-million peso airplane and the
priceless lives of all its occupants into certain death and destruction.  * *

The Appellate Court also ruled that in light of the evidence PAL
could not be faulted for want of diligence, particularly for failing “to
take positive measures to implement Civil Aeronautics Administration
regulations prohibiting civilians from carrying firearms on board
aircrafts;” and that “the absence of coded transmissions, the
amateurish behaviour of the pilot in dealing with the
NBI agent, the allegedly open cockpit door, and the failure to return to Mactan, in the light of the circumstances of the case * *,
were not negligent acts sufficient to overcome the force majeure
nature of the armed robbery.” In fact, the Court went on to say,^[9]

” ** it is illusive to assume that had
these precautions been taken, the hijacking or the robbery would not have
succeeded.  The mandatory use of the most
sophisticated electronic detection devices and magnetometers, the imposition of
severe penalties, the development of screening procedures, the compilation of
hijacker behavioural profiles, the assignment of sky
marshals, and the weight of outraged world opinion may have minimized
hijackings but all these have proved ineffective against truly determined
hijackers.  World experience shows that
if a group of armed hijackers want to take over a plane in flight, they can
elude the latest combined government and airline industry measures.  And as our own experience in Zamboanga City
illustrates, the use of force to overcome hijackers, results in the death and
injury of innocent passengers and crew members. 
We are not in the least bit suggesting that the Philippine Airlines
should not do everything humanly possible to protect passengers from hijackers’
acts.  We merely state that where the
defendant has faithfully complied with the requirements of government agencies
and adhered to the established procedures and precautions of the airline
industry at any particular time, its failure to take certain steps that a
passenger in hindsight believes should have been taken is not the negligence or
misconduct which mingles with force majeure as an
active and cooperative cause.

Under the circumstances of the instant case, the acts of the
airline and its crew cannot be faulted as negligence.  The hijackers had already shown their
willingness to kill.  One passenger was
in fact killed and another survived gunshot wounds.  The lives of the rest of the passengers and
crew were more important than their properties. 
Cooperation with the hijackers until they released their hostages at the
runway end near the South Superhighway was dictated by the circumstances.”

Insisting that the evidence demonstrates negligence on the part
of the PAL crew “occurring before and exposing them to hijacking,” Quisumbing and Loeffler have come
up to this Court praying that the judgments of the trial Court and the Court of
Appeals be reversed and another rendered in their favor.  Once again, the issue will be resolved
against them.

A careful analysis of the record in relation to the memoranda and
other pleadings of the parties, convinces this Court of the correctness of the
essential conclusion of both the trial and appellate courts that the evidence
does indeed fail to prove any want of diligence on the part of PAL, or that,
more specifically, it had failed to comply with applicable regulations or
universally accepted and observed procedures to preclude hijacking; and that the
particular acts singled out by the petitioners as supposedly demonstrative of
negligence were, in the light of the circumstances of the case, not in truth
negligent acts “sufficient to overcome the force majeure
nature of the armed robbery.” The Court quite agrees, too, with the
Appellate Tribunal’s wry observation that PAL’s
“failure to take certain steps that a passenger in hindsight believes
should have been taken is not the negligence or misconduct which mingles with
force majeure as an active and cooperative
cause.”

No success can therefore attend petitioners’ appeal, not only
because they wish to have a review and modification of factual conclusions of
the Court of Appeals, which established and uniformly observed axiom
proscribes,^[10]
but also because those factual conclusions have in this Court’s view been
correctly drawn from the proofs on record.

WHEREFORE, the petition is DENIED and the appealed
Decision of the Court of Appeals is AFFIRMED, with costs against petitioners.

SO ORDERED.

Cruz, Gancayco, Griño-Aquino,
and Medialdea,
JJ., concur.

^[1]
Rollo, pp. 19-21.  The Trial Court’s narrative is here
reproduced, broken up into consecutively numbered paragraphs.

^[2]
Id., pp. 33, 38

^[3]
The action was docketed as Civil Case No. 12300

^[4]
Rollo, pp. 32-33

^[5]
Id., pp. 35, 39-40

^[6]
Id., pp. 42-47.  The judgment was rendered by Judge Emilio V.
Salas under date of January 30, 1974.

^[7]
Their appeal was docketed as CA-G.R. No. 55687-R

^[8]
Rollo, pp. 19-28.  The decision, dated Jan. 18, 1979, was written for the Second
Division by Gutierrez, J. (now Associate Justice of this
Court), with whom concurred San Diego
and Cuevas, JJ.

^[9]
Id., pp. 27-28

^[10]
Hernandez v. CA, 149 SCRA 67; Cu Bie v.
IAC, 154 SCRA 599; Sumbingco v. CA, 155 SCRA
20; Hermo v. CA, 155 SCRA 24, citing Ramos v.
Pepsi-Cola Bottling Co., 19 SCRA 289, Bacayo v.
Genato, 135 SCRA 668, Republic v. IAC, 145
SCRA 25, and Sacay v. Sandiganbayan,
142 SCRA 593; de Guzman v. Intestate Estate of Benitez, 169 SCRA 284;
Gregorio v. CA, G.R. No. L-44344, July 16, 1990