Transportation

Law September 28, 2018

RECITATION
In Art. 29 of MC99, it says in the carriage of passengers, baggages,
and cargo, any action for damages however founded whether under
1. When does WARSAW apply? this convention or in contract or in tort or otherwise, can only be
2. What is international transportation? brought subject to the conditions and such limits in liability set out it
3. What is carriage by air? this convention. So, gone are the days where SC can use the NCC in
4. If only one of the two parties is a party to the convention, is favour of those who suffered under the convention.
that an international carriage?
5. So there is no distinction? For as long as there is one Another one, what is the effect if there is non-compliance of the
country that is a party to the WARSAW? formalities? If you read WC, one of the formalities required, there has
6. If two countries are not parties to the WARSAW convention, to be a stipulation in the tix that the governing law will be. The WC, if
does the convention apply? this stipulation is not found in the ticket, the CC can’t limit liability—
7. What did you mean when you said single contracting party? this is no longer found in MC99. So even if not stipulated, CC can
8. So for ex, the US is a party and the Olight is from SF to NY, and limit.
vice versa, is that an international carriage?
9. Are all international Olights considered as international Cargo, Passenger, Miscellaneous.
carriage for purposes of WARSAW Convention
10. What is the prescriptive period for bringing an action under What do you mean by cargo? No passenger together with cargo, it is
the WARSAW convention? only the shipment is being shipped, covered under MC. Name of
11. Where will the action be Oiled? document issued is called “Airway Bill” or “Cargo Receipt". In Art.
12. What is the rule on where the carriage is performed by 11, Airway bill is a prima facie evidence of conclusion of contract,
several carriers? (Successive Carriers) Lufthansa, China acceptance of the cargo, and conditions of carriage. Parties are
Airlines — cases for successive carriers. consignor and consignee.
13. You’re referring to the 2nd paragraph of Art. 30. It only
applies when there is delay. Art. 18 and 22. How much is the limited liability? Unless special value
14. If you will sue the actual carrier, do you think you will not is declared, loss, damage, delay of baggage results in max liability of
have any problem with venue? 1,000 SDRs. For cargo, 17 SDRs per kilogram. Cargo liability will
depend on the total weight of. The package.
DISCUSSION PROPER
Art. 9. There is no penalty against carrier for non compliance with
Regarding WARSAW and Montreal 1999, if you will check the net, documentation requirement
you will only get the Senate’s rati?ication. According to ICAO, the
effective date of the Montreal Convention is Dec. 18, 2015 (Deposited Art. 34. Arbitration clauses may be included in airway bills. Not a
Oct. 19, 2015). Secondly, we also got con?irmation from CAAP why at mandatory clause.
present there are still tickets that bear WARSAW convention as the
applicable law. I was informed by them that most of these airlines are Passenger. What are the liabilities of the Carrier to passenger? Check
using the old tix and once it’s hurot, it will be the Montreal convention art 17 of MC. Death or injury, 100,000.
that will be the governing law insofar as international carriage.
Art 20 and 21. Carrier is exonerated by passengers’ own negligence
In WC, use the words High Contracting Party. In MC, it uses State or wrongful act.
Party. If you notice, in WC on the operation of successive carriers, the
terms used are Principal Carrier or Ticket Issuing Airline, and the Art 29. Punitive exemplary or other non-compensatory damages are
actual carrier is referred to endorser airline or carrying agent. In not recoverable.
MC, the one who issues the contract is the contracting carrier and
the one who performs any of the leg as actual carrier. If you wanna Art 50. Carriers must maintain adequate insurance to cover liability.
be precise, use MC terms (Art. 39 of MC). On what are covered under
the convention, in WC, term used is “goods” in MC99, “cargo”. In WC, Art 24. Liability shall be reviewed every 5 years by ICAO and to be
passengers, baggage, goods. In MC99, passengers, baggage, cargo. In adjusted for the purpose of in?lation.
MC 99, it’s checked baggage and unchecked baggage. Remember
that there is that document to be issued for checked baggage, in WC it There is a ?ifth jurisdiction! But only insofar the passenger is
is baggage check, in MC it’s baggage identiOication tag. What about concerned. Art.33! This will only apply involving personally injury or
the denomination of the amount of liability? In WC it’s in francs, in death, value is passenger’s principal and permanent residence.
MC it’s Special Drawing Rights or SDRs. This is the monetary Nationality is NOT a factor. Insofar as liability for cargo and baggage,
consideration used by international monetary fund, it is a reserve in there are only 4 JDs, same as those found in WC.
the IMF where if you have a judgement, you can exchange it with IMF.
There are ?ive currencies being used at present, USD, EUR, Jap Yen, Miscellaneous. What is international carriage? Art 1 from MC99,
Chinese Currency, Sterling in UK or London. Different from francs same in WC. Two aspects— (1) That where the place of departure and
because francs are constant, but SDR will differ depending on the place of destination are situated within the territories of two High
in?lation. Liabilities will be checked by ICAO every 5 years. Check Art. Contracting Parties regardless of whether or not there be a break in the
24 (MC) and to be adjusted to the in?lation. transportation or a transshipment; (2) That where the place of
departure and the place of destination are within the territory of a
Major difference between WC and MC. If you noticed, there were single High Contracting Party if there is an agreed stopping place
several decisions the SC where they didn’t follow the WC. SC was within a territory subject to the sovereignty, mandate, or authority of
talking about the special specie or special injury wherein the SC another power, even though the power is not a party to the Convention.
applied provision of the NCC. If you look at several SC decisions,
within our JD, the WC can be ignored depending on the peculiar facts
presented by each case—THIS IS NO LONGER POSSIBLE UNDER
MONTREAL CONVENTION.

JJM Transpo Team 2018

 Transportation Law September 28, 2018

Notice of Claim. After discovery (Immediately). Checked baggage— meaning if it is lost, there arises as presumption, and the MC is silent
7 days from receipt. Cargo —14 days from receipt. Delay—21 days on this aspect because it is the law of the forum which will govern. It
from date baggage or cargo has been placed at the disposal of shipper. should depend on the kind of baggage. With due respect to the
COMPLAINT MUST BE IN WRITING. If no complaint, no action shall lie authors, the issues in the cases were different. In PAL vs CA, it was
against the carrier except in case of fraud. GR is it should be after about extraordinary diligence. UA vs. UY, issue was prescription. PAL
discovery; and the latest period is maximum. MINIMUM is after vs CA, issues were bad faith and application of WC. In Cathay paciMic,
discovery, MAXIMUM ang period. IOW you have within the period to issue is correctness in award of damages. In Pan-am, issue was
“discover”. awarding of actual damages. Cases were not on point.

PRESCRIPTIVE PERIOD. Same period and reckoning points. Art 25. Duties of a Passenger. Code of Commerce, silent. WC, silent, but
there are provision in the NCC. Whether upgrading or downgrading of
Successive Carriage. Art 1, 36, 45, 33. Art 1(3), carriage to be seats, breach of contract.
performed by serval successive carriers is deemed to be one
undivided carriage, IF IT HAS BEEN REGARDED BY THE PARTIES AS A
SINGLE OPERATION.

According to Art 45, an action for damages may be brought against

the actual carrier or the contracting carrier or both together or
separately. Action for damages must be brought at the action of the
plaintiff at the territory of one of the state parties either before the
court against the contracting carrier or before the court where the
actual carrier has its domicile or principal place of business. If the
passenger will sue the actual carrier, two venues only: domicile and
principal place of business. If passenger will sue contracting carrier,
go back to Art 33 where there are 4 venues except if it involved bodily
injury or death where there is 5 venues.

Art 55. The MC prevails over WC and other conventions.

What if during the ?light, you will ?ind WC as governing law? Atty
Submits that said stipulation is amended or revised because of at
effective MC. As a passenger, you cannot allege that the governing law
would still be the WC. Don’t invoke WC cause bene?its are lesser than
MC.

Since MC de?ined international carriage, then it is highly possible

although I am not sure what are the countries that have not yet signed
are adhered to the convention, there is actually a list if you go to the
website of ICAO, there is a list of countries parties to the convention. It
was signed in 1999 and it was only rati?ied in PH during 2015.

Art 1766 of NCC. In all matters not regulated by this code, rights and
obligations shall be governed by the Code of Commerce and by Special
Laws. It is only when NCC is silent that the Code of Commerce will
apply ?irst before going to WC.

Art. 1735 of the NCC insofar as Extraordinary Diligence. You don’t

have to go to MC as to the diligence required, you stick to the NCC.

How will you consider a person/know nature of person as private and

common carrier? Go back to the de?inition in the NCC.

What about principles regarding contract of adhesion? NCC.

Art 1749 of the NCC. Validity of a stipulation limiting the liability of

the carrier of a ?ixed amount unless higher value is declared? NCC.

Prescriptive period in international air? Not in NCC, none in COC, so

we rely in the MC as to prescriptive period.

With respect to air transept, the authors said that the care of baggage
is due diligence, and then the authors cited several cases. Pal vs. CA,
United Airlines vs UY, etc. If I will ask you, but not sa midterms zzz,
insofar as baggage in MC, check baggage and unchecked baggage. If
you will be asked what is the diligence required in respect of baggage
covered under MC, you have to go back to the NCC where there is
distinction between check in and hand carried. Check in, use provision
in NCC because It is under the custody of the common carrier,

JJM Transpo Team 2018