ALITALIA, PETITIONER, VS. INTERMEDIATE APPELLATE COURT AND FELIPA E. PABLO, RESPONDENTS.

Dr. Felipa Pablo — an associate
professor in the University of the Philippines,^[1]
and a research grantee of the Philippine Atomic Energy Agency — was invited to
take part at a meeting of the Department of Research and Isotopes of the Joint
FAO-IAEA Division of Atomic Energy in Food and Agriculture of the United
Nations in Ispra, Italy.^[2]
She was invited in view of her specialized knowledge in “foreign
substances in food and the agriculture environment.” She accepted the
invitation, and was then scheduled by the organizers, to read a paper on
“The Fate of Radioactive Fusion Products Contaminating Vegetable
Crops.”^[3]
The program announced that she would be the second speaker on the first day of
the meeting.^[4]
To fulfill this engagement, Dr. Pablo booked passage on petitioner airline,
ALITALIA.

She arrived in Milan
on the day before the meeting in accordance with the itinerary and time table
set for her by ALITALIA.  She was however
told by the ALITALIA personnel there at Milan
that her luggage was “delayed inasmuch as the same ** (was) in one of the
succeeding flights from Rome to Milan.”^[5]
Her luggage consisted of two (2) suitcases: 
one contained her clothing and other personal items; the other, her
scientific papers, slides and other research material.  But the other flights arriving from Rome
did not have her baggage on board.

By then feeling desperate, she went to Rome
to try to locate her bags herself. 
There, she inquired about her suitcases in the domestic and
international airports, and filled out the forms prescribed by ALITALIA for
people in her predicament.  However, her
baggage could not be found.  Completely
distraught and discouraged, she returned to Manila
without attending the meeting in Ispra,
Italy.

Once back in Manila
she demanded that ALITALIA make reparation for the damages thus suffered by
her.  ALITALIA offered her “free airline
tickets to compensate her for any alleged damages **.” She rejected the
offer, and forthwith commenced the action^[6]
which has given rise to the present appellate proceedings.

As it turned out, Prof. Pablo’s suitcases were in fact located
and forwarded to Ispra,^[7]
Italy, but only on the
day after her scheduled appearance and participation at the U.N. meeting there.^[8]
Of course Dr. Pablo was no longer there to accept delivery; she was already on
her way home to Manila.  And for some reason or other, the suitcases
were not actually restored to Prof. Pablo by ALITALIA until eleven (11) months
later, and four (4) months after institution of her action.^[9]

After appropriate proceedings and trial, the Court of First
Instance rendered judgment in Dr.
Pablo’s favor:^[10]

‘(1)    Ordering the defendant
(ALITALIA) to pay ** (her) the sum of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency, by way of nominal damages;

(2) Ordering the defendant to pay ** (her) the sum of FIVE THOUSAND
PESOS (P5,000.00), Philippine Currency, as and for
attorney’s fees; (and)

(3) Ordering the defendant to pay the costs of
the suit.”

ALITALIA appealed to the Intermediate Appellate Court but failed
to obtain a reversal of the judgment.^[11]
Indeed, the Appellate Court not only affirmed the Trial Court’s decision but
also increased the award of nominal damages payable by ALITALIA to P40,000.00.^[12]
That increase it justified as follows:^[13]

“Considering the circumstances, as found by the Trial Court
and the negligence committed by defendant, the amount of P20,000.00 under
present inflationary conditions as awarded ** to the plaintiff as nominal
damages, is too little to make up for the plaintiffs frustration and
disappointment in not being able to appear at said conference; and for the
embarrassment and humiliation she suffered from the academic community for
failure to carry out an official mission for which she was singled out by the
faculty to represent her institution and the country.  After weighing carefully all the considerations,
the amount awarded to the plaintiff for nominal damages and attorney’s fees
should be increased to the cost of her round trip air fare or at the present
rate of peso to the dollar at P40,000.00.”

ALITALIA has appealed to this Court on certiorari.  Here, it seeks to make basically the same
points it tried to make before the Trial Court and the Intermediate Appellate
Court, i.e.:

1) that the Warsaw Convention should have been applied to limit
ALITALIA’S liability; and

2) that there is no warrant in fact or in law for the award to
Dr. Pablo of nominal damages and attorney’s fees.^[14]

In addition, ALITALIA postulates that it
was error for the Intermediate Appellate Court to have refused to pass on all
the assigned errors and in not stating the facts and the law on which its
decision is based.^[15]

Under the Warsaw Convention,^[16]
an air carrier is made liable for damages for:

1) the death, wounding or other bodily injury of a passenger if
the accident causing it took place on board the aircraft or in the course of
its operations of embarking or disembarking;^[17]

2) the destruction or loss of, or damage
to, any registered luggage or goods, if the occurrence causing it took place
during the carriage by air;”^[18]
and

3) delay in the transportation by air of
passengers, luggage or goods.^[19]

In these cases, it is provided in the Convention that the
“action for damages, however founded, can only be brought subject to the
conditions and limits set out” therein.^[20]

The Convention also purports to limit the liability of the carrier in the following manner:^[21]

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.

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 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 waybill, 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 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.

The Warsaw Convention however denies to the carrier availment “of the provisions which exclude or limit
his liability, if the damage is caused by his wilful
misconduct or by such default on his part as, in accordance with the law of the
court seised of the case, is considered to be
equivalent to wilful misconduct,” or “if
the damage is (similarly) caused ** by any agent of the carrier acting within
the scope of his employment.”^[22]
The Hague Protocol amended the Warsaw Convention by removing the provision that
if the airline took all necessary steps to avoid the damage, it could exculpate
itself completely,^[23] and declaring the stated limits of
liability not applicable “if it is proved that the damage resulted from an
act or omission of the carrier, its servants or agents, done with intent to
cause damage or recklessly and with knowledge that damage would probably
result.” The same deletion was effected by the Montreal Agreement of 1966,
with the result that a passenger could recover unlimited damages upon proof of wilful misconduct.^[24]

The Convention does not thus operate as an exclusive enumeration
of the instances of an airline’s liability, or as an absolute limit of the
extent of that liability.  Such a
proposition is not borne out by the language of the Convention, as this Court
has now, and at an earlier time,
pointed out.^[25]
Moreover, slight reflection readily leads to the conclusion that it should be
deemed a limit of liability only in those cases where the cause of the death or
injury to person, or destruction, loss or damage to property or delay in its
transport is not attributable to or attended by any wilful
misconduct, bad faith, recklessness, or otherwise improper conduct on the part
of any official or employee for which the carrier is responsible, and there is
otherwise no special or extraordinary form of resulting injury.  The Convention’s provisions, in short, do not
“regulate or exclude liability for other breaches of contract by the
carrier”^[26]
or misconduct of its officers and employees, or for some particular or
exceptional type of damage.  Otherwise,
“an air carrier would be exempt from any liability for damages in the
event of its absolute refusal, in bad faith, to comply with a contract of
carriage, which is absurd.”^[27]
Nor may it for a moment be supposed that if a member of the aircraft complement
should inflict some physical injury on a passenger, or maliciously destroy or
damage the latter’s property, the Convention might successfully be pleaded as
the sole gauge to determine the carrier’s liability to the passenger.  Neither may the Convention be invoked to
justify the disregard of some extraordinary sort of damage resulting to a
passenger and preclude recovery therefor beyond the
limits set by said Convention.  It is in
this sense that the Convention has been applied, or ignored, depending on the
peculiar facts presented by each case.

In Pan American World Airways, Inc. v. I.A.C.,^[28] for example, the Warsaw Convention was
applied as regards the limitation on the carrier’s liability, there being a
simple loss of baggage without any otherwise improper conduct on the part of
the officials or employees of the airline or other special injury sustained by
the passenger.

On the other hand, the Warsaw Convention has invariably been held
inapplicable, or as not restrictive of the carrier’s liability, where there was
satisfactory evidence of malice or bad faith attributable to its officers and
employees.^[29]
Thus, an air carrier was sentenced to pay not only compensatory but also moral
and exemplary damages, and attorney’s fees, for instance, where its employees
rudely put a passenger holding a first-class ticket in the tourist or economy
section,^[30]
or ousted a brown Asiatic from the plane to give his seat to a white man,^[31]
or gave the seat of a passenger with a confirmed reservation to another,^[32]
or subjected a passenger to extremely rude, even barbaric treatment, as by
calling him a “monkey.”^[33]

In the case at bar, no bad faith or otherwise improper conduct
may be ascribed to the employees of petitioner airline; and Dr. Pablo’s luggage
was eventually returned to her, belatedly, it is true, but without appreciable
damage.  The fact is, nevertheless, that
some special species of injury was caused to Dr. Pablo because petitioner
ALITALIA misplaced her baggage and failed to deliver it to her at the time
appointed — a breach of its contract of carriage, to be sure — with the
result that she was unable to read the paper and make the scientific
presentation (consisting of slides, autoradiograms or
films, tables and tabulations) that she had painstakingly labored over, at the
prestigious international conference, to attend which she had traveled hundreds
of miles, to her chagrin and
embarrassment and the disappointment and annoyance of the organizers.  She felt, not unreasonably, that the
invitation for her to participate
at the conference, extended by the Joint FAO/IAEA Division of Atomic Energy in
Food and Agriculture of the United Nations, was a singular honor not only to
herself, but to the University of the Philippines and the country as well, an
opportunity to make some sort of impression among her colleagues in that field
of scientific activity.  The opportunity
to claim this honor or distinction was irretrievably lost to her because of Alitalia’s breach of its contract.

Apart from this, there can be no doubt that Dr. Pablo underwent
profound distress and anxiety, which gradually turned to panic and finally
despair, from the time she learned that her suitcases were missing up to the
time when, having gone to Rome, she finally realized that she would no longer
be able to take part in the conference. 
As she herself put it, she “was really shocked and distraught and
confused.”

Certainly, the compensation for the injury suffered by Dr. Pablo
cannot under the circumstances be restricted to that prescribed by the Warsaw
Convention for delay in the transport of baggage.

She is not, of course, entitled to be compensated for loss or
damage to her luggage.  As already
mentioned, her baggage was ultimately delivered to her in Manila, tardily but
safely.  She is however entitled to
nominal damages — which, as the law says, is adjudicated in order that a right
of the plaintiff, which has been violated or invaded by the defendant, may be
vindicated and recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered — and this Court agrees that the respondent
Court of Appeals correctly set the amount thereof at P40,000.00.  As to the purely technical argument that the
award to her of such nominal damages is precluded by her omission to include a
specific claim therefor in her complaint, it suffices
to draw attention to her general prayer, following her plea for moral and
exemplary damages and attorney’s fees, “for such other and further just
and equitable relief in the premises,” which certainly is broad enough to
comprehend an application as well for nominal damages.  Besides, petitioner should have realized that
the explicit assertion, and proof, that Dr. Pablo’s right had been violated or
invaded by it — absent any claim for actual on compensatory damages, the
prayer thereof having been voluntarily deleted by Dr. Pablo upon the return to
her of her baggage — necessarily raised the issue, of nominal damages.

This Court also agrees that respondent Court of Appeals correctly
awarded attorney’s fees to Dr. Pablo, and the amount of P5,000.00 set by it is
reasonable in the premises.  The law
authorizes recovery of attorney’s fees inter alia
where, as here, “the defendant’s act or omission has compelled the
plaintiff to litigate with third persons or to incur expenses to protect his
interest,”^[34]
or “where the court deems it just and equitable.”^[35]

WHEREFORE, no error being perceived in the challenged
decision of the Court of Appeals, it appearing on the contrary to be entirely
in accord with the facts and the law, said decision is hereby AFFIRMED, with
costs against the petitioner.

SO ORDERED.

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

^[1]
Teaching such natural science subjects as Botany, Biology and Plant Physiology

^[2]
Rollo, p. 36

^[3]
Ibid, reference being made to Exhs. “A-2-a”
and “A-2-b”

^[4]
This was on November 6, 1972.

^[5]
Rollo, p. 88

^[6]
On June 7, 1973 (Rollo, p. 90)

^[7]
Specifically to the Hotel Europa, as indicated by
Prof. Pablo (Rollo, pp. 88-89).

^[8]
Rollo, p. 89. 
The baggage arrived on Nov. 7, 1972; but by that time, Prof. Pablo had
already left Rome for Hongkong.

^[9]
Delivery appears to have been effected on October 17, 1973 (Rollo,
p. 136).

^[10]
Rollo, p. 43: 
Record on Appeal, pp. 61-62.  The
decision was written by Judge Ricardo D. Galano and
is dated February 2, 1975.

^[11]
Its appeal was docketed as AC-G.R. CV No. 59501

^[12]
Rollo, pp. 35-39.  The decision was written for the Second Civil
Cases Division by Campos, Jr., J., with whom concurred Pascual,
Camilon and Jurado, JJ.

^[13]
Id., pp. 38-39

^[14]
Id., pp. 91-92

^[15]
Id., p. 91

^[16]
Full title:  “Convention for the
Unification of Certain Rules Relating to International Carriage by Air signed
at Warsaw, October 12, 1929” (League of Nations — Treaty Series),
coming into force on Feb. 13, 1933; adhered to by the Republic of the
Philippines on Nov. 9, 1950 with reservation; the Philippines deposited the
Instrument of Adherence with the Polish Government on Nov. 9, 1950; and the
Convention entered into force for the Philippines on Feb. 7, 1951 (Philippine
Treaties Index [1946-1982] citing 137 League of Nations Treaties Series 11).  The Warsaw Convention was amended by (1) the
Hague Protocol on September 28, 1955 (Id., and United Nations, Treaty Series,
Vol. 261, p. 423 and Vol. 266, p. 444), entering into force for the Philippines
on February 28, 1967; (2) the Montreal Agreement in 1966, of which the
Philippine Airlines and Alitalia are signatories; (3)
the Guatemala Protocol in 1971 (apparently not adhered to by IATA members); and
(4) the Montreal Protocols (Numbered 3 and 4) (1975) (also apparently not
effective among IATA members).

^[17]
ART. 17

^[18]
ART. 18 (par.1), “transportation by air” being defined as “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 whatever,” but
not where said baggage or goods are transported by land, sea or river
outside an airport unless it be in “the performance of a contract for
transportation by air for the purpose of loading, delivery or transshipment
(pars. 2 and 3, ART. 18)

^[19]
ART. 19

^[20]
ART. 24, which also states that with
regard to Article 17, the
application of the rule is “without
prejudice to the questions as to
who are the persons who have the right to bring suit and what are
their respective rights.”

^[21]
ART. 22, as amended by the Hague Protocol, supra; the Montreal Agreement
of 1966 set the limitation of damages at $75,000 per passenger; the Guatemala
Protocol, 1971, boosted the limit to $100,000 per passenger, liability for
baggage was increased to $1,000, and the right to bring suit was expanded.

^[22]
ART. 25

^[23]
ART. 20 (1).  “The carrier is not
liable if he proves that he and his agents have taken all necessary measures to
avoid the damage or that it was impossible for him or them to take such
measures.”

^[24]
Lisi v. Alitalia-Linee
Aeree Italiane, 370 F 2d
508 [2nd Cir 1966] aff’d 390 US 455 [1968], rehearing
denied 397 US 939 [1968] and Egan v. Kallsman
Instrument corp., 21 NY 2d 160, 287 NYS 2d 14 [1967], CERT. DENIED 390 US 1039
[1968]

^[25]
Northwest Airlines, Inc. v. Cuenca, 14 SCRA
1065 (1965) which inter alia states that the
Convention “merely declares the carrier liable for damages in the
enumerated cases, if the conditions therein specified are present.”

^[26]
Id.

^[27]
Id.

^[28]
164 SCRA 268, citing Ong Yiu
v. C.A. 91 SCRA 223; SEE Burnett v. Trans World Airlines, Inc.
(DC NM), 368 F Supp. 1152 holding that the airline was not responsible to its
passengers for mere mental anguish sustained as a result of the hijacking, in
the absence of physical injuries

^[29]
SEE KLM Royal Dutch Airlines v. Tuller, 119
App DC 282, 292 F 2d 775, cert den 368 US 921, 7 L Ed 2d 136, 82 S Ct 243;
American Airlines, Inc. v. Ulen, 87 App DC
307, 186 F 2d 529; Goepp v. American Overseas
Airlines, Inc., 281 App Div 105, 117 NYS 2d 276, affd
305 NY 830, 114 NE 2d 37, cert den 346 US 874, 98 L Ed 382, 74 S Ct 124

^[30]
Northwest Airlines, Inc. v. Cuenca, 14 SCRA 1063; Lopez v. Pan Am, 16 SCRA 43

^[31]
Air France v. Carrascoso,
18 SCRA 155.  In Ortigas,
Jr. v. Lufthansa German Airlines, 64 SCRA 610 (1975), plaintiff’s seat
in the first-class section was given to a Belgian, and consequently plaintiff,
who held a first-class ticket, confirmed and validated, was relegated to a
tourist- or economy-class seat.

^[32]
Korean Airlines Co., Ltd. v. C.A., 154 SCRA 211; see also, KLM Royal
Dutch Airlines v. C.A., 65 SCRA 237

^[33]
Zulueta v. Pan Am, 43 SCRA 397

^[34]
Civil Code, ART. 2208, par. (2); see Rivera v. Litum
& Co., Inc., 4 SCRA 1072 (1962); Filipino Pipe & Foundry Corporation v.
Central Bank, 23 SCRA 1044 (1968); Ganaban v. Bayle, 30 SCRA 365 (1969); Valenzuela v. C.A., G.R.
No. 56168, Dec. 22, 1988

^[35]
Id., id., par. (11); see Civil Aeronautics Administration v.
C.A., G.R. No. 51806, Nov. 8, 1988