"When Aircraft Operator is Common Carrier.

There can be no doubt, under the general

law of common carriers, that those airlines and aircraft owner engaged in the passenger
service on regular schedules on definite routes, who solicit the patronage of the traveling
public, advertise schedules for routes, times of leaving, and rates of fare, and make the
usual stipulation as to baggage, are common carriers by air. A flying service company
which, according to its printed advertising, will take anyone anywhere at any time, though
not operating on regular routes or schedules, and basing the charges not on the number of
passengers, but on the operating cost of the plane per mile, has been held to be a
common carrier. It is not necessary, in order to make one carrying passengers by aircraft a
common carrier of passengers that the passengers be carried from one point to another,
the status and the liability as a common carrier may exist notwithstanding the passenger's
ticket issued by an airplane carrier of passengers for hire contains a statement that it is not
a common carrier, etc., or a stipulation that it is to be held only for its proven negligence.
But an airplane owner cannot be classed as a common carrier of passengers unless he
undertakes, for hire, to carry all persons who apply for passage indiscriminately as long as
thereisroomandnolegalexcuseforrefusing..."6Am.Jur.,Aviation,Sec.68,pp.3685.
"The test of whether one is a common carrier by air is whether he holds out that he will carry
for hire, so long as he has room, goods of everyone bringing goods to him for carriage, not
whether he is carrying as a public employment or whether he carries as a fixed place."
(Ibid.,Sec.39,p.99.)
THEAIRCRAFTANDCIVILAVIATION
I.APPLICABLELAWS.TheNewCivilCodeprovisionsonCommonCarriersapplyto
transportationbyair.
a. Civil aviation is governed by Republic Act No.9497 otherwise known as the Civil
AviationAuthorityActof2008whichwaspassedonMarch4,2008.
b. The economic regulation of air transportation is governed by Republic Act No.
776andtheregulationsissuedbytheCivilAeronauticsBoardpursuantthereto.
c. Treaties and conventions likewise have the effect of law in this jurisdiction. Thus,
the Warsaw Convention applies to liabilities of the carriers in international
transportation by air. Another international convention applied in this jurisdiction is
theChicagoConventionwhichwassignedonDecember7,1944.
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II. CIVIL AVIATION. "Civil Aviation" refers to the operation of any civil aircraft for the
purpose of general aviation operations, aerial work or commercial air transport operations.
"Aircraft", on the other hand, refers to any machine that can derive support in the
atmosphere from the reactions of the air other than the reactions of the air against the
earth's surface. The term "aircraft", when used in Civil Aviation Act of 2008 or in regulations
issued under the same Act, shall refer to civil aircraft only, and will not include State or
publicaircraft.
III. REGISTRATION OF AIRCRAFT. "Philippine aircraft" means an aircraft registered in
the Philippines in accordance with the requirements of the Civil Aviation Authority Act of
2008. This is consistent with Article 17 Chapter III of the Chicago Convention which
provides that "aircraft have the nationality of the State in which they are registered." The
Chicago Convention likewise provides that every aircraft engaged in international air
navigationshallbearitsappropriatenationalityandregistrationmarks.
a. The Chicago Convention provides that "an aircraft cannot be validly registered in
more than one State, but its registration may be changed from one State to
another."
b. Aircraft registration is made in accordance with the provisions in Sections 4348
and54oftheCivilAviationAuthorityActof2008.
c. The State of Registry refers to the State on whose register the aircraft is entered.
Hence, an aircraft is a Philippine National if the same is registered with the Civil
Aviation Authority of the Philippines. The Certificate of Registration issued by the
Civil Aviation Authority of the Philippines shall be deemed conclusive evidence of
nationality for international purposes. The Certificate of Registration shall be carried
aboardtheaircraftinallitsoperations.
d. The registry of aircraft and any transfer, lien, mortgage or other interests in aircraft
or aircraft engines is maintained by the CAAP. The CAAP is given sole authority to
registeraircraftandliens,mortgagesorotherinterestsinaircraftoraircraftengines.
e. An aircraft shall be eligible for registration if the following requirements are
present:
1. The aircraft it is owned by or leased to a citizen or citizens of the
Philippines or corporations or associations organized under the laws of the
Philippines at least sixty per centum (60%) of whose capital is owned by
Filipinocitizensand
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2.Theaircraftisnotregisteredunderthelawsofanyforeigncountry.
f. Exceptionally, foreignowned or registered aircraft may be registered if utilized by
members of aero clubs organized for recreation, sport or the development of flying
skills as a prerequisite to any aeronautical activities of such clubs within the
Philippineairspace.
g. No aircraft can be operated in the Philippines unless it displays nationality and
registration marks. Permanent marking of aircraft nationality and registration shall
be painted on the aircraft or affixed by other means ensuring a similar degree of
permanence.ThenationalitymarkforPhilippineregisteredaircraftis"RP."
h. The certificate of registration is conclusive evidence of ownership, except in a
proceedingwheresuchownershipis,ormaybe,atissue.
IV. RECORDING OF CONVEYANCES. All conveyances made or executed, which affects
the title to, or interest in, any aircraft of Philippine Registry, or any portion thereof shall be
registered with the CAAP. The pertinent provisions of the Civil Aviation Authority Act of
2008regardingrecordingofconveyancesarefoundinSections4953.
a.Thevalidityoftheregistrationofvoluntarydealingsconcerningaircraftswiththe
CAAPissubjecttothefollowingrules:
1. The registration is valid only with respect to the parties and their heirs,
assignees, executors, administrators, devisees, or successors in interest,
andanypersonhavingactualnotionthereof.
2. The registration is valid as against all persons and any instrument,
recording of which is required shall take effect from the date of its record in
thebooksoftheAuthority,andnotfromthedateofitsexecution.
b. The requirements are similar to the requirements in land registration. It should be
noted that under Section 52 of the Property Registration Decree the owner may use
such forms of deeds, mortgages, leases or other voluntary instruments as are
sufficient in law. The owner's duplicate of the certificate of registration must be
presentedbeforeregistrationiseffected.
V. MARINE INSURANCE. Insurance over aircrafts falls within the coverage of Marine
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Insurance under the Insurance Code. These include Air Hull Policies which may vary
dependingonthetypeofaircraft.
VI. AIR TRANSPORTATION IN GENERAL. Air commerce or commercial air transport
operations refers to and includes scheduled or nonscheduled air transport services for pay
or hire, the navigation of aircraft in furtherance of a business, the navigation of aircraft from
one place to another for operation in the conduct of a business, or an aircraft operation
involvingthetransportofpassengers,cargoormailforremunerationorhire.
a. "Domestic air commerce" means and includes air commerce within the limits of
thePhilippineterritory.
b. "Domestic air transport" means air transportation within the limits of Philippine
territory.
c. "Foreign air transport" refers to air transportation between the Philippines and
anyplaceoutsideitorwhollyoutsidethePhilippines.
d. "International commercial air transport" refers to the carriage by aircraft of
persons or property for remuneration or hire or the carriage of mail between any two
ormorecountries.
VII. PERSONS INVOLVED IN AIR TRANSPORTATION. Persons and entities involved in
air transportation that are regulated by the Civil Aviation Authority of the Philippines
principally include the air carrier or operator. Air operators may either be a Philippine Air
CarrieroraForeignAirCarrier.
a. "Air carrier or operator" refers to a person who undertakes, whether directly or
indirectly, or by a lease or any other arrangements, to engage in air transportation
servicesoraircommerce.
b."Philippineaircarrier"meansanaircarrierwhoisacitizenofthePhilippines.
c. "Foreign air carrier or foreign air operator" means any operator, not being a
Philippine air operator, which undertakes,whether directly or indirectly or by lease or
any other arrangement, to engage in commercial air transport operations within
bordersorairspaceofthePhilippines,whetheronascheduledorcharteredbasis.
d. "Airmen" refers to any individual who engages, as the person in command or as
pilot, mechanic, aeronautical engineer, flight radio operator or member of the crew,
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in the navigation of aircraft while under way and any individual who is directly in
charge of inspection, maintenance, overhauling or repair of aircraft, aircraft engine,
propellers, or appliances and individual who serves in the capacity of aircraft
dispatcherorairtrafficcontroloperator.
The CAB regulates persons and entities that are involved in the economic aspects of air
transportations. These include not only airline companies but also such entities as General
Sales Agents, Cargo Sales Agents, Charterers, Air Freight Forwarders, OffLine Carriers,
andAirTaxiOperators.
VIII. CHARTER OF AIRCRAFT. Charter trips are likewise regulated by the CAB. Charter
flight or charter trip means air transportation performed by an air carrier where the entire
capacity if one or more aircraft, or less than the entire capacity of an aircraft, has been
engaged for the movement of persons and their personnel baggage or fort the movement
ofpropertyonatime,mileageortripbasis:
a. By a person for his own use (including a direct air carrier when such aircraft is
engaged solely for the transportation of company personnel or commercial traffic in
casesofemergency)
b. By a representative (or representative acting jointly) of a group for the use of such
group (provided no such representative is professionally engaged in the formation
of groups for transportation or in the solicitation or sale of transportation services)
or
c.Byanairfreightforwardedholdingacurrentlyeffectivepermit.
IX. SOVEREIGNTY AND AIR FREEDOMS. The fundamental principle stated in the
Chicago Convention is with respect to the sovereignty of the contracting States. Article 1 of
Chapter I thereof provides that "the contracting States recognize that every State has
complete and exclusive sovereignty over the airspace above its territory." Hence, consent
isnecessaryforotherStatestooperatewithintheterritoryofanother.
The bilateral system of air traffic negotiations is in force under the Chicago Convention.
Before airlines of treaty partners are able to launch air services to, through and from
another partner's territory, the convention requires that the two governments shall have
negotiated a bilateral treaty between them that will define the air traffic rights each grants to
the other during the life of the treaty. The resulting agreement is known as the Air Services
Agreement.
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OBLIGATIONSOFCARRIERINAIRTRANSPORTATION
I.EXTRAORDINARYDILIGENCEINAIRTRANSPORTATION.
I.A. AIRWORTHINESS. Airworthiness is an important requirement of transportation
by air. Like vessels, aircrafts that are used by common carriers must also be fit to
transport goods and passengers. The aircraft must be in such a condition that it
mustbeabletowithstandtherigorsoftheflight.
Under Section 3 of the Civil Aeronautics Act of 2008, airworthiness means that an
aircraft, its engines, propellers, and other components and accessories, are of
proper design and construction, and are safe for air navigation purposes, such
design and construction being consistent with accepted engineering practice and in
accordance with aerodynamic laws and aircraft science. The registered owner or
operator of an aircraft in an airworthy condition, including compliance with all
airworthinessdirectivesinaccordancewithCivilAviationRegulation.
I.B. INSPECTION OF AIRCRAFT AND CARGO. The Director General of the Civil
Aviation Authority of the Philippines (CAAP) is authorized to have access to all civil
aircraft for their inspection. The Director General is also authorized to detain civil
aircraftif:
a.Theaircraftmaynotbeairworthyor
b.Theairmanmaynotbequalifiedorphysicallyormentallycapablefortheflightor
c. The operation would cause imminent danger to persons or property on the
ground.
The duty to inspect cargo is mandated under Republic Act No. 6325 which prohibits
actsinimicaltocivilaviation.
Section 8. Aircraft companies which operate as public utilities or operators of
aircraft which are for hire are authorized to open and investigate suspicious
packages and cargoes in the presence of the owner or shipper, or his authorized
representatives if present in order to help the authorities in the enforcement of the
provisions of this Act: Provided, That if the owner, shipper or his representative
refuses to have the same opened and inspected, the airline or air carrier is
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authorizedtorefusetheloadingthereof.
Section 9. Every ticket issued to a passenger by the airline or air carrier
concerned shall contain among others the following condition printed thereon:
"Holder hereof and his handcarried luggage(s) are subject to search for, and
seizure of, prohibited materials or substances. Holder refusing to be searched
shall not be allowed to board the aircraft," which shall constitute a part of the
contractbetweenthepassengerandtheaircarrier.
I.C. CARE OF BAGGAGE. With respect to goods, the failure of the the carriers to
exercise due diligence in a number of cases consists in their failure to take care of
the baggage of the carrier's passengers. In the cases where the carriers are made
liable, the baggages of their passengers are either damaged or transported to
anotherplace,oraredelayedorareotherwiselostaltogether.
Art. 1733 of the Civil Code provides that from the very nature of their business and
by reasons of public policy, common carriers are bound to observe extraordinary
diligence in the vigilance over the goods transported by them. This extraordinary
responsibility, according to Art. 1736, lasts from the time the goods are
unconditionally placed in the possession of and received by the carrier until they are
delivered actually or constructively to the consignee or person who has the right to
receive them. Art.1737 states that common carriers duty to observe extraordinary
diligence in the vigilance over the goods transported by them remains in full force
and effect when they are temporarily unloaded or stored in transit. And Art. 1735
establishes the presumption that if the goods are lost, destroyed, or deteriorated,
common carriers are presumed to have been at fault or to have acted negligently,
unless they prove that they had observed extraordinary diligence as required in Art.
1733.
The only exception to the foregoing responsibility of the common carrier is when the
loss, destruction, or deterioration of the goods us due to any of the following causes:
Flood, storm, earthquake, lightning, or other natural disaster or calamity Act of the
public enemy in war, whether international or civil Act or omission of the shipper or
owner of the goods The character of the goods or defects in the packing or in the
containersorOrderoractofcompetentpublicauthority.
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II.C.A. ADDITIONAL PROVISIONS. The Joint DOTCDTI Administrative Order No.
1 Series of 2012 provides a Bill of Rights for Air Passengers and Carrier
Obligations.

Section 14. Right to Compensation for Delayed, Lost, and Damaged

Baggage. A passenger shall have the right to have his/her baggage carried on
the same flight that such passenger takes, subject to considerations of safety,
security,oranyotherlegalandvalidcause.
14.1 In case a checkedin baggage has been offloaded for operational, safety, or
security reasons, the air carrier shall inform the passenger at the soonest
practicable time and in such manner that the passenger will readily know of the
offloading (i.e. that his/her baggage has been offloaded and the reason
therefore). If the passengers baggage has been offloaded, the air carrier should
make the appropriate report and give the passenger a copy thereof, even if it had
alreadyannouncedthatthebaggagewouldbeonthenextflight.
The air carrier shall carry the offloaded baggage in the next flight with available
space, and deliver the same to the passenger either personally or at his/her
residence. For every twentyfour (24) hours of delay in such delivery, the air carrier
shall tender an amount of Two Thousand Pesos (Php2,000.00) to the passenger,
as compensation for the inconvenience the latter experienced. A fraction of a day
shallbeconsideredasonedayforpurposesofcalculatingthecompensation.
For the purposes of this section, the twenty four (24)hour period shall commence
one(1)hourfromthearrivaloftheflightofthepassengercarryingsuchbaggage.
14.2 Should such baggage, whether carried on the same or a later flight, be lost or
suffer any damage attributable to the air carrier, the passenger shall be
compensatedinthefollowingmanner:
(a)Forinternationalflights,therelevantconventionshallapply.
(b) For domestic flights, upon proof, a maximum amount equivalent to half of the
amountintherelevantconvention(forinternationalflights)initsPesoequivalent.
14.3 For compensation purposes, a passengers baggage is presumed to have
been permanently and totally lost, if within a period of seven (7) days, counted
from the time the passenger or consignee should have received the same, the
baggageisnotdeliveredtosaidpassengerorconsignee.

The Warsaw Convention further supplies provisions concerning international

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transportation of baggage or goods performed by an aircraft gratuitously or for hire.
TheseareprovidedinSectionsTwoandThreeofsaidconvention

SectionIILuggageTicket
Article4
1. For the carriage of luggage, other than small personal objects of which the
passengertakeschargehimself,thecarriermustdeliveraluggageticket.
2. The luggage ticket shall be made out in duplicate, one part for the passenger
andtheotherpartforthecarrier.
3.Theluggageticketshallcontainthefollowingparticulars:
a.theplaceanddateofissue
b.theplaceofdepartureandofdestination
c.thenameandaddressofthecarrierorcarriers
d.thenumberofthepassengerticket
e. a statement that delivery of the luggage will be made to the bearer of the
luggageticket
f.thenumberandweightofthepackages
g.theamountofthevaluedeclaredinaccordancewithArticle22(2)
h. a statement that the carriage is subject to the rules relating to liability
establishedbythisConvention.
4. The absence, irregularity or loss of the luggage ticket does not affect the
existence or the validity of the contract of carriage, which shall none the less be
subject to the rules of this Convention. Nevertheless, if the carrier accepts
luggage without a luggage ticket having been delivered, or if the luggage ticket
does not contain the particulars set out at (d), (f) and (h) above, the carrier shall
not be entitled to avail himself of those provisions of the Convention which
excludeorlimithisliability.

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SectionIIIAirConsignmentNote

Article5
1. Every carrier of goods has the right to require the consignor to make out and
hand over to him a document called an "air consignment note" every consignor
hastherighttorequirethecarriertoacceptthisdocument.
2. The absence, irregularity or loss of this document does not affect the existence
or the validity of the contract of carriage which shall, subject to the provisions of
Article9,benonethelessgovernedbytherulesofthisConvention.

Article6
1. The air consignment note shall be made out by the consignor in three original
partsandbehandedoverwiththegoods.
2. The first part shall be marked "for the carrier," and shall be signed by the
consignor. The second part shall be marked "for the consignee" it shall be
signed by the consignor and by the carrier and shall accompany the goods. The
third part shall be signed by the carrier and handed by him to the consignor after
thegoodshavebeenaccepted.
3.Thecarriershallsignonacceptanceofthegoods.
4. The signature of the carrier may be stamped that of the consignor may be
printedorstamped.
5. If, at the request of the consignor, the carrier makes out the air consignment
note, he shall be deemed, subject to proof to the contrary, to have done so on
behalfoftheconsignor.

Article7
The carrier of goods has the right to require the consignor to make out separate
consignmentnoteswhenthereismorethanonepackage.

Article8
Theairconsignmentnoteshallcontainthefollowingparticulars:
a.theplaceanddateofitsexecution
b.theplaceofdepartureandofdestination

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c. the agreed stopping places, provided that the carrier may reserve the
right to alter the stopping places in case of necessity, and that if he
exercises that right the alteration shall not have the effect of depriving the
carriageofitsinternationalcharacter
d.thenameandaddressoftheconsignor
e.thenameandaddressofthefirstcarrier
f.thenameandaddressoftheconsignee,ifthecasesorequires
g.thenatureofthegoods
h. the number of the packages, the method of packing and the particular
marksornumbersuponthem
i.theweight,thequantityandthevolumeordimensionsofthegoods
j.theapparentconditionofthegoodsandofthepacking
k. the freight, if it has been agreed upon, the date and place of payment,
andthepersonwhoistopayit
l. if the goods are sent for payment on delivery, the price of the goods, and,
ifthecasesorequires,theamountoftheexpensesincurred
m.theamountofthevaluedeclaredinaccordancewithArticle22(2)
n.thenumberofpartsoftheairconsignmentnote
o. the documents handed to the carrier to accompany the air consignment
note
p. the time fixed for the completion of the carriage and a brief note of the
routetobefollowed,ifthesemattershavebeenagreedupon
q. a statement that the carriage is subject to the rules relating to liability
establishedbythisConvention.

Article9
If the carrier accepts goods without an air consignment note having been made
out, or if the air consignment note does not contain all the particulars set out in
Article 8(a) to (i) inclusive and (q), the carrier shall not be entitled to avail himself
oftheprovisionsofthisConventionwhichexcludeorlimithisliability.

Article10
1. The consignor is responsible for the correctness of the particulars and
statementsrelatingtothegoodswhichheinsertsintheairconsignmentnote.
2. The consignor will be liable for all damage suffered by the carrier or any other
person by reason of the irregularity, incorrectness or incompleteness of the said
particularsandstatements.
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Article11
1. The air consignment note is prima facie evidence of the conclusion of the
contract,ofthereceiptofthegoodsandoftheconditionsofcarriage.
2. The statements in the air consignment note relating to the weight, dimensions
and packing of the goods, as well as those relating to the number of packages,
are prima facie evidence of the facts stated those relating to the quantity, volume
and condition of the goods do not constitute evidence against the carrier except
so far as they both have been, and are stated in the air consignment note to have
been, checked by him in the presence of the consignor, or relate to the apparent
conditionofthegoods.
Article12
1. Subject to his liability to carry out all his obligations under the contract of
carriage, the consignor has the right to dispose of the goods by withdrawing them
at the aerodrome of departure or destination, or by stopping them in the course of
the journey on any landing, or by calling for them to be delivered at the place of
destination or in the course of the journey to a person other than the consignee
named in the air consignment note, or by requiring them to be returned to the
aerodrome of departure. He must not exercise this right of disposition in such a
way as to prejudice the carrier or other consignors and he must repay any
expensesoccasionedbytheexerciseofthisright.
2. If it is impossible to carry out the orders of the consignor the carrier must so
informhimforthwith.
3. If the carrier obeys the orders of the consignor for the disposition of the goods
without requiring the production of the part of the air consignment note delivered
to the latter, he will be liable, without prejudice to his right of recovery from the
consignor, for any damage which may be caused thereby to any person who is
lawfullyinpossessionofthatpartoftheairconsignmentnote.
4. The right conferred on the consignor ceases at the moment when that of the
consignee begins in accordance with Article 13. Nevertheless, if the consignee
declines to accept the consignment note or the goods, or if he cannot be
communicatedwith,theconsignorresumeshisrightofdisposition.
Article13
1. Except in the circumstances set out in the preceding Article, the consignee is
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entitled, on arrival of the goods at the place of destination, to require the carrier to
hand over to him the air consignment note and to deliver the goods to him, on
payment of the charges due and on complying with the conditions of carriage set
outintheairconsignmentnote.
2. Unless it is otherwise agreed, it is the duty of the carrier to give notice to the
consigneeassoonasthegoodsarrive.
3. If the carrier admits the loss of the goods, or if the goods have not arrived at the
expiration of seven days after the date on which they ought to have arrived, the
consignee is entitled to put into force against the carrier the rights which flow from
thecontractofcarriage.
Article14
The consignor and the consignee can respectively enforce all the rights given
them by Articles 12 and 13, each in his own name, whether he is acting in his own
interest or in the interest of another, provided that he carries out the obligations
imposedbythecontract.
Article15
1. Articles 12, 13 and 14 do not affect either the relations of the consignor or the
consignee with each other or the mutual relations of third parties whose rights are
derivedeitherfromtheconsignororfromtheconsignee.
2. The provisions of Articles 12, 13 and 14 can only be varied by express
provisionintheairconsignmentnote.
Article16
1. The consignor must furnish such information and attach to the air consignment
note such documents as are necessary to meet the formalities of customs, octroi
or police before the goods can be delivered to the consignee. The consignor is
liable to the carrier for any damage occasioned by the absence, insufficiency or
irregularity of any such information or documents, unless the damage is due to
thefaultofthecarrierorhisagents.
2. The carrier is under no obligation to enquire into the correctness or sufficiency
ofsuchinformationordocuments.
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II. DUTY TO PASSENGER. Article 1755 of the New Civil Code provides that a common
carrier is bound to carry the safely as far as human care ad foresight can provide, using the
utmostdiligenceaverycautiouspersons,withadueregardforallthecircumstances.
Article 17 of the Warsaw Code provides for the liability of the carrier on the safety of
passengers, to wit: The carrier shall be liable for damage sustained in the event of the
death or wounding of a passenger or any other bodily injury suffered by a passenger, is the
accident which caused the damage so sustained took place on board the aircraft or in the
courseofanyoftheoperationsofembarkingordisembarking.
Thenatureoftheaircarrier'sdutywithrespecttopassengerswasexplainedinthiswise
(Saludo,Jr.V.CourtofAppeals,G.R.No.95536,March23,1992.):
"Airline companies are hereby sternly admonished that it is their duty not only to
cursorily instruct but to strictly require their personnel to be more accommodating
towards customers, passengers and the general public. After all, common carriers
such as airline companies are in the business of rendering public service, which
is the primary reason for their enfranchisement and recognition in our law.
Because the passengers in a contract of carriage do not contract merely for
transportation, they have a right to be treated with kindness, respect courtesy and
consideration. A contract to transport passengers is quite different in kind and
degree from any other contractual relation, and generates a relations attended
with public duty. The operation of common carrier is a business affected with
public interest and must be directed to serve the comfort and convenience of
passengers. Passengers are human beings with human feelings and emotions
theyshouldnotbetreatedasmerenumbersorstatisticsforrevenues.
II.A. PASSENGER BILL OF RIGHTS. Joint Department of Transportation and
Communication and Department of Trade and Industry Administrative Order No. 01
Series of 2012 provides the rights of air passengers and carriers obligations, as
follows:
Section 4. Right to Full Fair, and Clear Disclosure of the Service Offered and All
the Terms and Conditions of the Contract of Carriage. Every passenger, shall,
before purchasing any ticket for a contract of carriage by the air carriage or its
agent, be entitled the full, fair and clear disclosure of all the terms and conditions
of the contract of carriage about to be purchased. The disclosure shall include,
among others, document required to be presented at checkin, provisions on
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checkin deadlines, refund and rebooking policies, and procedures and
responsibility for delayed and/or cancelled flights. These terms and conditions
may include liability limitations, claimfiling deadlines and other crucial
conditions.
II.B.OBLIGATIONOFCARRIER.
a. Cause the disclosure to be printed on or attached to the passenger ticket and/or
boarding pass, or the incorporation of such terms and conditions of carriage by
reference. Incorporation by reference means that the ticket and/or boarding pass
shall clearly state that the complete terms and conditions of carriage are available
for perusal and/or review on the air carriers website, or in some other document
that may be sent to or delivered by post or electronic mail to the passenger upon
his/herrequest.
b. Ensure that passengers receive an explanation of key terms identified on the
ticket from any location where the carriers tickets are sold, including travel
agencies. In case of online bookings, the air carrier must establish a system
whereinthepurchaserisfullyapprisedoftherequireddisclosures.
c. The same shall be verbally explained to the passenger by the air carrier and/ or
its agent/s in English or Filipino, or in a language that is easily understood by the
purchase, placing emphasis on the limitations and/or restrictions attached to the
ticket.
Any violation of the aforementioned provisions shall be a ground for the denial of
subsequent applications for approval of promotional fare, or for the suspension or
recalloftheapprovalmadeontheadvertisedfare/rate.
Section 5. Right to Clear and NonMisleading Advertisement of, and
Important Reminders Regarding Fares. Advertisement of fares shall be clear
andnotmisleading.
Section 6. Right Against Misleading and Fraudulent Sales Promotion.
Consistent with the declared policy of the State to protect the interests of the
consumers, which includes protection from misleading and fraudulent sales
promotion practices, all sales promotion campaigns and activities of air carriers
shall be carried out with honesty, transparency and fairness, and in accordance
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with the requirements of the Consumer Act of the Philippines, and it Implementing
RulesandRegulations.
Section 7. Right to Transportation and Baggage Conveyance. Every
passenger is entitled to transportation, baggage conveyance and ancillary
services, in accordance with the terms and conditions of contract of carriage with
the carrier. Thus, any violation of terms and conditions of carriage due to the fault
or negligence of the air carrier shall entitle the passenger to compensation or
alternativearrangements.
Section 8. Right to be Processed for Checkin. In accordance with the usual air
procedures, a passenger holding a confirmed ticket, whether promotional or
regular, with complete documentary requirement, and who has complied with the
checkin procedures, shall be processed accordingly at the checkin counter
within the checkin deadline. The airline shall, therefore, and subject to
infrastructure limitations, clearly designate the boundaries of its assigned
checkinarea/sorcounter/s.
A passenger within the air carriers cordoned or other designated checkin area as
herein defined at least one (1) hour before the published estimated time of
departure (ETD) shall not be considered late or noshow and shall not be denied
checkin. The carrier shall exert utmost diligence in ensuring that passengers
within the cordoned or other designated checkin area and/or line up checkin
countersarecheckedinfortheirflightsbeforethecheckindeadline.
A passenger who is late in accordance with the preceding paragraph may be
denied checkin and directed to a standby or rebooking counter, as the case may
be,forproperprocessing.
Section 9. Right to Sufficient Processing Time. Passengers shall be given
enough time before the published ETD within which to go through the checkin
andfinalsecurityprocesses.
InternationalAirportstwo(2)hoursbeforeETD
DomesticAirportsone(1)hourbeforeETD
To ensure that PWDs and senior citizens shall have equal access to air
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transportation services. Accordingly, an air carrier shall designate at least one (1)
checkin counter which will prioritize PWDs, senior citizens and persons requiring
special assistance or handling. If this is not practicable, the air carrier shall
instead provide for priority handling and processing such passengers. The air
carrier shall likewise coordinate with the appropriate authorities for the use of
proper airport equipment, entryways and/or aerobridges, as the case may be,
when the same are available, to facilitate transactions, movement, boarding
and/or disembarkation of PWDs, senior citizen, and/or persons requiring special
equipment,attheairport.
Persons accompanying the PWD, a senior citizen or a person requiring special
assistance or handling should also be accompanied at the designated checkin
counter mentioned. It is the duty of the air carrier or it authorized agent to inform
its passengers if additional costs will be incurred for the use of facilities designed
forpassengersneedingspecialassistanceinairportslocatedinothercountries.
It is the responsibility of a PWD to declare his/her need for special assistance or
handling to the airline, upon booking his/her flight. If the PWD fails to do so, the
airline may not be held liable for any services it was not able to provide the
passenger and/or for any additional costs incurred for the use of special
assistancefacilities.
Section 10. Right to Board Aircraft for the Purpose of Flight. A passenger
checked in for a particular flight has the right to board the aircraft for the purpose
offlight,exceptforbutnotlimitedtothefollowinglegalorvalidcause,towit:
a.Immigrationissues
b.Safetyandsecurity
c.Healthconcerns
d.Nonappearanceattheboardinggateattheappointedboardingtime
e.Governmentrequisitionofspace
Other than these causes, no passenger may be denied boarding without his/her
consent.
10.1 While it is an accepted practice for an air carrier to overbook its flights, any
expense, consequence or inconvenience caused to affected passengers must be
bornebytheaircarrierasfollows:
a. The air carrier shall determine the number of passengers in excess of
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thetotalseatcapacityoftheaircraft.
b. The air carrier shall announce that the flight is overbooked and that it is
looking for volunteers willing to give up their seats in exchange for air
carriercompensation.
c. The air carrier shall provide the interested passengers or volunteers a
list of amenities and offers, which they can choose from, which list
amenities shall always include the option to be given priority booking in the
next flight with available space or to be endorsed to another air carrier upon
payment of any fare difference, and provided that space and other
circumstances permit such accommodation, at the option of the
passenger,and/orcashincentive.
d. In case the number of volunteers is not enough to resolve the
overbooking, the air carrier shall increase the compensation package by
certain degrees or by adding more amenities/services until the required
numberofvolunteersismet.
Section 11. Right to Compensation and Amenities in Case of Cancellation of
Flight.
11.1 In case of flight cancellation attributable to the carrier, a passenger shall
havetherightto:
a. Be notified beforehand via public announcement, written/published
noticeandflightstatusupdateservice(text)
b. Be provided with the following, if he/she is already at the airport at the
timetheannouncementoftheflightcancellation:
Sufficient refreshment or meals (e.g. snacks consisting of at least a
bottle of water and a sandwich, or breakfast, lunch or dinner, or a
voucher for the same, as the case maybe)Hotel accommodation
(convenientlyaccessiblefromtheairport)
Transportationfromtheairporttothehotel,v.v.
Freephonecalls,textoremailsand
Firstaidkits,ifnecessary
c. Reimbursement of the value of the fare, including taxes and surcharges,
of the sector cancelled, or both/all sectors, in case the passenger decides
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nottoflytheticketorallroutes/sectorsor
d. Be endorsed to another air carrier without paying any fare difference at
the option of the passengers, and provided that space and other
circumstancespermitsuchreaccommodationsor
e. Rebook the ticket, without additional charges, to the next flight with
available space, or within thirty (30) days, to a future trip within the period of
validity of the ticket. However, for rebooking made in excess of the
aforementioned thirty (30) days for a trip likewise within the validity of the
ticket,feesand/orfaredifferenceshallapply.
In case the air carrier cancels a flight at least twentyfour (24) hours before the
ETD, it shall not be liable for the foregoing amenities, except, it shall be obliged to
notify the passenger, and in accordance with the preceding provisions, to rebook
orreimbursethepassenger,attheoptionofthelatter.
11.2 In case the air carrier cancels the flight because of force majeure, safety and/
or security reasons, as certified by the Civil Aviation Authority of the Philippines, a
passengershallhavetherighttobereimbursedforthefullvalueofthefare.
Section12.RighttoCompensationandAmenitiesinCaseofFlightDelay
andExceptionsThereto.
TerminalDelayofatleastthree(3)hoursaftertheETD,whetherornotattributable
tocarrier,apassengershallhavetherightto:
a.Beprovidedwithrefreshmentsormeals(sufficientsnacks,breakfast,
lunchordinner,asthecasemaybe,freephonecalls,textoremails,and
firstaid,ifnecessaryand
b.Rebookorrefundhis/herticketinaccordancewiththeprecedingSection
ortobeendorsedtoanothercarrier,inaccordancewiththepreceding
Section.
TerminalDelayextendsmorethansix(6)hoursaftertheETDforcauses
attributabletothecarrier:
a.Bedeemedcancelledforthepurposeofmakingavailabletothe
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passengertherightsandamenitiesrequiredtobeprovidedincaseof
actualcancellationandb.Inaddition,anaffectedpassengershallbe
giventhefollowing:
Additionalcompensationequivalenttoatleastthevalueofthe
sectordelayedordeemedcancelledtobepaidintheformofcash
orvoucher,atthediscretionofthecarrierand
Therighttoboardtheflightifittakesplacemorethansix(6)hours
aftertheETDandtheaffectedpassengerhasnotoptedtorebook
and/orrefund.Forthispurpose,theaircarrierisobligedtoexertall
effortstocontactthepassengerfortheflight.
Tarmac Delay of at least two (2) hours after ETD, reckoned from the closing of the
aircraft doors, or when the aircraft is at the gate with the doors still open but the
passengersarenotallowedtodeplane,apassengerhastherightto:
a.Providedwithsufficientfoodandbeverages.
Section15.RighttoCompensationincaseofDeathorBodilyInjuryofa
Passenger.
InternationalFlights
a.Incaseofdeathorbodilyinjurysustainedbyapassenger,therelevant
conventionandintercarrieragreementshallapply:
UndertheWarsawConvention,thecarrierisliableininternationalair
transportationinthefollowingcircumstances:
Art. 17. The Carrier shall be liable for damage sustained in the event of the
death or wounding of a passenger or any other bodily injury suffered by a
passenger if the accident which caused the damage so sustained took
place on board the aircraft or in the course of any of the operations of
embarkingordisembarking.

Art. 19. The carrier shall be liable for damage occasioned by delay in the
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transportationbyairofpassengers,baggageorgoods.
In the cases covered by the abovequoted provisions, it is provided in the
Convention that the action for damages, however, founded, can only be
broughtsubjecttoconditionsandlimitssetouttherein,asfollows:

Art. 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 125,000
francs. Nevertheless, by special contract, the carrier and the passenger
mayagreetoahigherlimitofliability.

b. For an international carriage performed under the 1996 Montreal

InterCarrier Agreement, which includes a point in the United States of
America as a point of origin, a point of destination or agreed stopping
place, the limit of liability for each passenger for death, wounding or other
bodily injury shall be the sum of SeventyFive Thousand United States
Dollars (US$75,000.00), inclusive of legal fees and cost. Provided, in the
case of a claim brought in a state where a provision is made for a separate
award for legal fees and costs, the limit shall be the sum of FiftyEight
Thousand United States Dollars (US$58,000.00), exclusive of legal fees
andcosts.

DomesticFlights

a. The compensation shall be based on the stipulated amount in the

relevant convention which governs international flights, the same shall to
begiveninPesodenomination.

II.C. BREACH OF CONTRACT. Breach of Contract is defined as the failure without

legal reason to comply with the terms of a contract. It is also defined as failure,
without legal cause, to perform any promise which forms the whole or part of the
contract.

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The following were instances considered the existence of breach of contract in the
dutyoftheairlinecarriertoitspassengers:
a. When an airline company bumped off a passenger with confirmed
reservation or downgraded the passengers seat accommodation from one
classtoalowerclass.
b. When an airline company upgraded the seat accommodation of a
passengerifthepassengerhasnotconsentedthereto.
c. When an airline did not looked after the convenience and comfort of the
passengereveniftheflightwascancelledduetofortuitousevent.
d. When an airline did not safeguard the comfort, convenience and safety of
its stranded passenger because the Supreme Court rules that delay or
diversion of flight due to fortuitous event does not terminate the contract of
carriage. The carrier must also communicate to its passenger the
consequences of the delay in their flight so that the passenger can make
properarrangements.
e. The carrier may be held liable for the rude and discourteous treatment of
its passengers not only by the crew inside the vessel but also the staff in the
airport as well as the staff in branch offices of the carrier. Thus, moral
damages may be awarded in one case where the passenger was subjected
to a very poor service, verbal abuse and abject lack of respect and
consideration.

II.C.A.PROVISIONSOFTHENEWCIVILCODE.
Art. 1756. In case of death or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they have
proved that they observed extraordinary diligence as prescribed in Articles 1733
and1755.
Art. 1733. Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence in the vigilance over
the goods and for the safety of the passengers transported by them, according to
allcircumstancesofeachcase.
Art. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of a very
cautiousperson,withdueregardforallthecircumstances.
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Art. 1757. The responsibility of a common carrier for the safety of passengers as
required under 1733 and 1755 cannot be dispensed with or lessened by
stipulation,bythepostingofnotices,statementsontickets,orotherwise.
Art. 1758. When a passenger is carried gratuitously, a stipulation limiting the
common carriers liability for negligence is valid, but not for wilful act or
negligence.
The reduction of fare does not justify any limitation of the common carriers
liability.
Art. 1759. Common carriers are liable for the death of or injuries to passengers
through the negligence or wilful acts of the formers employees, although such
employees may have acted beyond the scope of their authority or in violation of
theordersofthecommoncarriers.
This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection and
supervisionoftheiremployees.
Art. 1760. The common carriers responsibility prescribed in the preceding article
cannot be eliminated or limited by stipulation, by the posting of notices, by
statementsontheticketsorotherwise.
Art. 1761. The passenger must observe the diligence of a good father of family to
avoidinjurytohimself.
Art. 1762. The contributory negligence of the passenger does not bar recovery of
damages for his death or injuries, if the proximate cause thereof is the negligence
ofthecommoncarrier,buttheamountofdamagesshallbeequitablyreduced.
Art. 1763. A common carrier is responsible for injuries suffered by a passenger
on account of the wilful acts or negligence of other passengers or of strangers, if
the common carriers employees through the exercise of the diligence of good
fatherofafamilycouldhavepreventedorstoppedtheactoromission.

II.C.B.ACTIONFORDAMAGES.
AVAILABLEREMEDIESFORANINJUREDPASSENGER
a. Civil case for breach of contract of carriage against the common carrier and not
against the driver because the contract of carriage is between the common carrier
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and the passenger. The driver was merely acting as an agent of the common
carrier.

LiabilityofCommonCarrier: DirectandPrimary
QuantumofEvidenceRequired: PreponderanceofEvidence

Defense of due diligence in the selection and supervision of employee, though may
mitigate liability, is not a complete defense in culpa contractual or breach of contract
of carriage. The burden of proof lies in the common carrier that it exercise
extraordinarydiligencetoavoidinjurytopassengers.
b. A criminal case against the driver for reckless imprudence resulting in physical
injuriesorhomicideordamagedtoproperties.

QuantumofEvidenceRequired : ProofBeyondReasonableDoubt
LiabilityofDriver : DirectandPrimary
LiabilityofCommonCarrier : SubsidiaryLiableintermsofcivil
liabilityincaseofinsolvencyofthe
driver

c. A case of culpa aquiliana or quasidelict against the common carrier even if

there is a preexisting contractual relationship between them. However, in cases of
culpa aquiliana or quasidelict the injured passenger has the burden of proving
negligence of the common carrier and his driver, and the defense of due diligence
in the selection and supervision of employee is a complete defense of the common
carrierasemployertoavoidcivilliability.
Art. 1764. Damages in cases comprised in this section shall be awarded in
accordance with Title XVIII of this Book (New Civil Code), concerning Damages.
Article 2206 shall also apply to the death of a passenger caused by the breach of
contractbyacommoncarrier.
Art. 2206. The amount of damages for death caused by a crime or quasidelict
shall be at least Three thousand pesos (P3,000.00), even though there may have
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beenmitigatingcircumstances.Inaddition:
1. The defendant shall be liable for the loss of the earning capacity of the
deceased, and the indemnity shall be paid to the heirs of the latter such
indemnity shall in every case be assessed and awarded by the court,
unless the deceased on account of permanent physical disability not
causedbythedefendant,hadnoearningcapacityatthetimeofhisdeath
2. If the deceased was obliged to give support according to the provisions
of Article 291, the recipient who is not an heir called to the decedents
inheritance by the law of testate or intestate succession, may demand
support from the person causing the death, for a period not exceeding five
year,theexactdurationtobefixedbycourt.
3. The spouse, legitimate and illegitimate descendants or ascendants of
the deceased may demand moral damages for mental anguish by reason
ofthedeathofthedeceased.
II.C.C. PRESCRIPTIVE PERIOD. Action must be filed within 2 years from: a.
date of arrival at the destination b. date of expected arrival and c. date on which
thetransportationstopped.(Art.29)

Art.29(WarsawConvention)
1. The right to damages shall be extinguished if an action is not brought within two
years, reckoned from the date of arrival at the destination, or from the date on
which the aircraft ought to have arrived, or from the date on which the carriage
stopped.
2. The method of calculating the period of limitation shall be determined by the
lawoftheCourtseisedofthecase.
II.C.D.JURISDICTION.
Investigation of air accidents is within the jurisdiction of the director general of the
CAAP and the Aircraft Accident Investigation and Inquiry Board (AAIIB), which is
also under the CAAP (section 49, CAAP Law). As its system, the AAIIB follows
ICAOannex13onAircraftAccidentandIncidentInvestigation.

The AAIIB has the power to promulgate rules and regulations governing the
notification and the reporting of accidents and incidents involving aircraft (section
42(a),CAAPLaw).
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In respect of death of, or injury to, passengers or loss or damage to baggage or

cargo in respect of domestic carriage are governed by Civil Code on Laws on
CommonCarrier.
With respect to international transportation and tt the option of the plaintiff, the action
fordamagesmaybefiledinthe(Art.28(1)WarsawConvention):
a.Courtofdomicileofthecarrier
b.Courtofitsprincipalplaceofbusiness
c. Court where it has a place of business through which the contract has been
madeor
d.Courtoftheplaceofdestination.
It is the passengers ultimate destination not an agreed stopping place that
determinesthecountrywheresuitistobefiled.
Art.28(WarsawConvention)
1. An action for damages must be brought, at the option of the plaintiff, in the
territory of one of the High Contracting Parties, either before the Court having
jurisdiction where the carrier is ordinarily resident, or has his principal place of
business, or has an establishment by which the contract has been made or before
theCourthavingjurisdictionattheplaceofdestination.
2. Questions of procedure shall be governed by the law of the Court seised of the
case.
III. CIVIL AVIATION AUTHORITY OF THE PHILIPPINES AND CIVIL AERONAUTICS
BOARD. Two government bodies regulate aviation in the Philippines: the Civil Aviation
Authority of the Philippines (CAAP) by virtue of Republic Act No. 9497 or the CAAP Law
and the Civil Aeronautics Board (CAB) by virtue of Republic Act No. 776, as amended by
PresidentialDecree1462.
The CAAP acts as the public registry for aircraft and generally regulates the technical,
operational, safety and security aspects of aviation while the CAB regulates the economic
aspect of air transport, and has the general supervision, control and jurisdiction over air
carriers,generalsalesagents,cargosalesagentsandairfreightforwarders.
The CAAP, through its director general, prescribes rules, regulations, or minimum
standards governing practices, methods and procedures that are necessary to provide
adequately safe civil aviation. The director general has the power (Sec. 35 of the CAAP
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Law),amongothers:
a. to issue airmen certificates to individuals who possesses the proper
qualifications for, and are physically able to, perform the duties pertaining to the
positionforwhichtheairmancertificateissought
b. to issue airworthiness certificates for Philippineregistered aircraft, after it is
found that the aircraft conforms with the appropriate type of certificate and is in a
conditionallowingforsafeoperationand
c. to issue air operator certificates to air carriers that are properly and adequately
equippedandhavedemonstratedtheabilitytoconductsafeoperations.
The safety regulations for both commercial and noncommercial air transport are contained
inthePhilippineCivilAviationRules(PCAR)promulgatedbytheCAAP.
Only foreign air carriers duly designated by their respective governments with, which the
Philippines has an air service agreement (ASA), can operate in the Philippines by applying
for a foreign air carriers permit (FACP) with the CAB. The foreign air carrier must submit
an FACP application form, together with the required attachments (including articles of
incorporation and bylaws of the foreign air carrier, Securities and Exchange license to
conduct business in the Philippines, and a note verbal designating the applicant as an
official carrier to the Philippines), to the CAB. Upon publication of the application and
notice to affected airlines, the CAB will conduct a hearing to determine whether it will issue
aFACPinfavoroftheforeigncarrierapplicant.
Generally, a permit authorizing a person to engage in domestic air commerce or air
transport can only be granted to a Philippine citizen. A Philippine citizen is defined in
Section3(r)ofRA776andSection3(gg)ofCAAPLawas:
a.anindividualwhoisacitizenofthePhilippines
b.apartnershipofwhicheachmemberissuchanindividual
c. a corporation or association created or organized under the laws of the
Philippines, of which the directing head and twothirds or more of the board of
directors and other managing officers are citizens of the Philippines, and in which
60 per cent of the voting interest is owned or controlled by persons who are citizens
ofthePhilippines
Note, however, that foreigners residing in the Philippines who are members of aero clubs
organized purely for recreation, sport, or the development of flying skills, may be issued
permitsasaprerequisitetoanyaeronauticalactivitieswithinPhilippineairspace.
Air carriers must seek specific approval from the CAB to operate as such. The CAB
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requires air carriers to have a minimum paidup capital ranging from 10 million pesos for
carriers with domestic nonscheduled flights to 50 million pesos for carriers with domestic
andinternationalscheduledflights.
Philippine rules and regulations require that any person or entity wishing to engage in air
commerce or transport, whether foreign or domestic, must secure a certificate of public
convenienceandnecessityfromtheCAB.
Foreign carriers who wish to operate to and from the Philippines must also secure a permit
from the CAB before they can operate in the Philippines. These permits ensure that the
person or entity wishing to engage in air transport has the financial and technical capability
toperformsuchservices.
IV.WARSAWCONVENTION.
IV.A. PURPOSE AND APPLICABILITY. The Warsaw Convention on Air Transport
applies to international air carriage. The Warsaw Convention to which the Republic
of the Philippines is a party and which has the force and effect of law in this country
applies to all international transportation of persons, baggage or goods performed
by an aircraft gratuitously or for hire. As enumerated in the Preamble of the
Convention, one of the objectives is "to regulate in a uniform manner the conditions
ofinternationaltransportationbyair."
IV.B. LIABILITY OF CARRIER. The Warsaw Convention provides that the carrier is
liableininternationalairtransportationinthefollowinginstances:
Art. 17. The carrier shall be liable for damages sustained in the the event of the
death or wounding of a passenger or any other bodily injury suffered by a
passenger if the accident which caused the damage so sustained took place on
boardtheaircraftorinthecourseofanyoftheoperationsofembarking
Art. 18. (1) The carrier shall be liable for damage sustained in the event of the
destruction or loss of, or of damage to, any checked baggage, or any goods, if the
occurrence which caused the damage so sustained took place during the
transportationbyair.
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(2) The transportation by air within the meaning of the preceding paragraph shall
comprise the period during which the baggage or goods are in charge of the
carrier, whether in an airport or on board an aircraft, or, in the case of a landing
outsideanairport,inanyplacewhatsoever.
(3) The period of the transportation by air shall not extend to any transportation by
land, by sea, or by river performed outside an airport, if, however, such
transportation takes place in the performance of a contract for transportation by
air, for the purpose of loading, delivery, or transshipment, any damage is
presumed, subject to proof to the contrary, to have been the result of an event
whichtookplaceduringthetransportationbyair.
Art. 19. The carrier shall be liable for damage occasioned by delay in the
transportationbyairofpassengers,baggage,orgood.
In the cases covered by the abovequoted provisions, it is provided in the
Convention that the "action for damages, however, founded, can only be brought
subject to conditions and limits set out therein. The limitations provided for in the
firstparagraphofArticle22areasfollows:
Art. 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 125,000 francs. Nevertheless, by special contract, the
carrier and the passenger may agree to a higher limit of liability (2) In the
transportation of checked baggage and of goods, the liability of the carrier shall
be limited to 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 5000 francs per passenger (4) The sums
mentioned above shall be deemed to refer to the French franc consisting of
651/2 milligrams of gold at the standard of fineness of nine hundred thousandths.
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Thesesumsmaybeconvertedintoanynationalcurrencyinroundedfigures.
c. The Warsaw Convention however denies to the carrier resort to "the provisions
which exclude or limit his liability, if the damage is caused by his willful misconduct
or by such default on his part as, in accordance with the law of the court seized of
the case, is considered to be equivalent to willful misconduct," or "if the damage is
(similarly) caused... by an agent of the carrier acting within the scope of his
employment." The Hauge 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, and declaring the stated limits of liability not applicable
"if it 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
unlimiteddamagesuponproofofwillfulmisconduct.
IV.C. LIMIT OF LIABILITY. The liability of the carrier for injuries to passengers
under the Warsaw Convention is 250,000 francs. However, by special contract, the
carrierandthepassengermayagreetoahigherlimitofliability.
a. With respect to registered baggage and cargoes, the limit of liability is 250 francs
per kilogramme. If 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, the carrier
will be liable to pay a sum not exceeding the declared sum, unless he proves that
sumisgreaterthantheactualvaluetotheconsignoratdelivery.
b. In determining the amount to which the carrier's liability, only the total weight of the
package or packages concerned shall be considered except when the value of
other packages covered by the same baggage check or the same air waybill are
affected, the total weight of such other packages or packages shall also be taken
intoconsiderationindeterminingthelimitofliability.
c. With respect to objects which the passenger takes charge himself, the limit of
liabilityis5,000francsperpassenger.
d. The Guatemala Protocol of 1971 increased the limit for passengers to
$100,000.00 and $1,000 for baggage. However, the Supreme Court noted in
Santos III v. Northwest Orient Airlines, et al. that the Guatemala Protocol is still
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ineffective.
IV.D. MEANING OF INTERNATIONAL TRANSPORTATION. There is
international transportation within the contemplation of the Warsaw Convention
when:
a. The place of departure and the place of of destination are within the territories of
two contracting countries regardless of whether or not the there was a break in the
transportationortranshipment
b. The place of departure and the place of destination are within the territory of a
single contracting country if there is an agreed stopping place within a territory
subject to the sovereignty, mandate or authority of another power, even though the
powerisnotapartytotheConvention.
IV.D. TORT LIABILITY. The Warsaw Convention does not provide for an exclusive
enumeration of instances when the carrier is liable. It does not provide for an
absolute limit of liability and it does not preclude the application of the Civil Code
and other pertinent local laws. Hence, a complaint for quasidelict cans till be filed
even if the filing is beyond the prescriptive period provided for under the Convention
solongasitiswithintheprescriptiveperiodoffouryearsundertheCivilCode.
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