THIRD DIVISION
[G.R. No. 122308. July 8, 1997.]
PURITA S. MAPA, CARMINA S. MAPA and CORNELIO P. MAPA, Petitioners, v. COURT OF APPEALS AND TRANS-WORLD AIRLINES INC., Respondents.
Angara, Abello, Concepcion, Regala & Cruz, for Petitioners.
Quisumbing, Torres & Evangelista for Private Respondent.
SYNOPSIS
Petitioners purchased two (2) TWA tickers in Bangkok, Thailand. Said tickers are for Los Angeles — New York — Boston — St. Louis-Chicago. On August 27, 1990 petitioners Purita and Carmina S. Mapa departed for Boston, taking a connecting flight on TWA’s carrier TW 0901 from JFK Airport, checking in seven (7) pieces of luggage at the TWA counter in the JFK Airport. Upon arriving in Boston petitioners Purita and Carmina proceeded to the carousel to claim their baggages and found only three (3) out of the seven they checked in. Despite TWA’s assurance that their luggages would be located within 48 hours, the same were never found. The total value of the lost items amounted to $11,283.79. TWA offered to settle the case by giving petitioners two options; (a) transportation credit for future TWA travel or (b) cash settlement. Petitioners chose the first option, however, TWA disregarded petitioners’ option and unilaterally declared the payment of $2,560.00 as constituting full satisfaction of petitioners’ claim. Petitioners accepted the check for $2,560 as partial payment for the actual cost of their lost baggages. Despite demands by petitioners respondent TWA failed and refused without just cause to indemnify and redress petitioners for grave injury and damages they have suffered.
Petitioners filed with the trial court a complaint for damages. The trial court dismissed the case for lack of jurisdiction in light of Article 28(1) of the Warsaw Convention. The trial court held that the Warsaw Convention is applicable in case at bar, since the Philippines and the United States are parties to the convention, the contracts of transportation come within the meaning of "International Transportation." The trial court also held that the Philippines, not being one of the places specified in Art. 28 (1) of the Warsaw Convention where the complaint may be instituted then it has no jurisdiction over the present case. On appeal to the Court of Appeals, the appellate court affirmed the ruling of the trial court. Hence, the present petition. The Supreme Court ruled that the contracts does not fall under the category of international transportation as provided by the Warsaw Convention. The only way to bring the contracts between petitioners Purita and Carmina Mapa on the one hand, and TWA on the other, within the category of international transportation is to link them or to make them an integral part of the Manila — Los Angeles travel of Purita and Carmina through Pal aircraft. However, the alleged international tickets issued by TWA were not presented in evidence, clearly then; there is at all no factual basis of the finding that the TWA tickets were issued in conjunction with the international tickets.
Petition granted and the challenged decision of the Court of Appeals is reversed and set aside.
Petitioners filed with the trial court a complaint for damages. The trial court dismissed the case for lack of jurisdiction in light of Article 28(1) of the Warsaw Convention. The trial court held that the Warsaw Convention is applicable in case at bar, since the Philippines and the United States are parties to the convention, the contracts of transportation come within the meaning of "International Transportation." The trial court also held that the Philippines, not being one of the places specified in Art. 28 (1) of the Warsaw Convention where the complaint may be instituted then it has no jurisdiction over the present case. On appeal to the Court of Appeals, the appellate court affirmed the ruling of the trial court. Hence, the present petition. The Supreme Court ruled that the contracts does not fall under the category of international transportation as provided by the Warsaw Convention. The only way to bring the contracts between petitioners Purita and Carmina Mapa on the one hand, and TWA on the other, within the category of international transportation is to link them or to make them an integral part of the Manila — Los Angeles travel of Purita and Carmina through Pal aircraft. However, the alleged international tickets issued by TWA were not presented in evidence, clearly then; there is at all no factual basis of the finding that the TWA tickets were issued in conjunction with the international tickets.
Petition granted and the challenged decision of the Court of Appeals is reversed and set aside.
SYLLABUS
1. CIVIL LAW; CONTRACT OF TRANSPORTATION; WARSAW CONVENTION; "INTERNATIONAL TRANSPORTATION," DEFINED. — As provided in Article I(2) of the Warsaw Convention, a contract is one of international transportation only if according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, mandate or authority of another power, even though that power is not a party to this convention. There are then two categories of international transportation, viz., (1) that where the place of departure and the place of destination are situated within the territories of two High Contracting Parties regardless of whether or not there be a break in the transportation or a transshipment; and (2) that where the place of departure and the place of destination are within the territory of a single High Contracting Party if there is an agreed stopping place within a territory subject to the sovereignty, mandate, or authority of another power, even though the power is not a party to the Convention. The High Contracting Parties referred to in the Convention are the signatories thereto and those which subsequently adhered to it.
2. ID.; ID.; ID.; ADHERED TO BY THE REPUBLIC OF THE PHILIPPINES. — In the case of the Philippines, the Convention was concurred in by the Senate, through Resolution No. 19, on 16 May 1950. The Philippines instrument of accession was signed by President Elpidio Quirino on 13 October 1950 and was deposited with the Polish Government on 9 November 1950. The Convention became applicable to the Philippines on 9 February 1951. Then, on 23 September 1955, President Ramon Magsaysay issued Proclamation No. 201, declaring the Philippines’ formal adherence thereto, "to the end that the same and every article and clause thereof maybe observed and fulfilled in good faith by the Republic of the Philippines and the citizens thereof.
3. ID.; ID.; ID.; WHEN CONTRACT IS NOT OF INTERNATIONAL TRANSPORTATION; CASE AT BAR. — The contracts of transportation in this case are evidence by the two TWA tickets, No. 015:9475:153:304 and No. 015:9475:153:305, both purchased and issued in Bangkok, Thailand. On the basis alone of the provisions therein, it is obvious that the place of departure and the place of destination are all in the territory of the United States, or of a single High Contracting Party. The contracts, therefore, cannot come within the purview of the first category of international transportation. Neither can it be under the second category since there was NO agreed stopping place within a territory subject to the sovereignty, mandate, or authority of another power. It must be underscored that the first category of international transportation under the Warsaw Convention is based on "the contract made by the parties." TWA does not claim that the Manila-Los Angeles contracts of transportation which brought Purita and Carmina to Los Angeles were also its contracts. It does not deny the assertion of the petitioners that those contracts were independent of the TWA tickets issued in Bangkok, Thailand. No evidence was offered that TWA and PAL had an agreement concerning transportation of passengers from points of departures not served with aircrafts of one or the other. There could have been no difficulty for such agreement, since TWA admitted without qualification in paragraph 1 of its Answer to the second Amended Complaint the allegation in paragraph 1.1 of the latter that TWA "is a foreign corporation licensed to do business in the Philippines with office address at Ground Floor, Saville Building, Sen. Gil J. Puyat Avenue, corner Paseo de Roxas, Makati, Metro Manila."cralaw virtua1aw library
4. REMEDIAL LAW; ACTIONS; MOTION TO DISMISS; EVIDENCE SHOULD HAVE BEEN OFFERED AT THE PRELIMINARY HEARING. — TWA should have offered evidence for its affirmative defenses at the preliminary hearing therefor. Section 5 of Rule 16 of the Rules of Court expressly provides: SEC. 5. Pleading grounds as affirmative defenses. — Any of the grounds for dismissal provided for in this rule, except improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had thereon as if a motion to dismiss had been filed. Without any further evidence as earlier discussed, the trial court should have denied the affirmative defense of lack of jurisdiction because it did not appear to be indubitable. Section 3 of Rule 16 of the Rules of Court provides: SEC. 3. Hearing and order. — After hearing the court may deny or grant the motion or allow amendment of pleading, or may defer the hearing and determination of the motion until the trial if the ground alleged therein does not appear to be indubitable.
2. ID.; ID.; ID.; ADHERED TO BY THE REPUBLIC OF THE PHILIPPINES. — In the case of the Philippines, the Convention was concurred in by the Senate, through Resolution No. 19, on 16 May 1950. The Philippines instrument of accession was signed by President Elpidio Quirino on 13 October 1950 and was deposited with the Polish Government on 9 November 1950. The Convention became applicable to the Philippines on 9 February 1951. Then, on 23 September 1955, President Ramon Magsaysay issued Proclamation No. 201, declaring the Philippines’ formal adherence thereto, "to the end that the same and every article and clause thereof maybe observed and fulfilled in good faith by the Republic of the Philippines and the citizens thereof.
3. ID.; ID.; ID.; WHEN CONTRACT IS NOT OF INTERNATIONAL TRANSPORTATION; CASE AT BAR. — The contracts of transportation in this case are evidence by the two TWA tickets, No. 015:9475:153:304 and No. 015:9475:153:305, both purchased and issued in Bangkok, Thailand. On the basis alone of the provisions therein, it is obvious that the place of departure and the place of destination are all in the territory of the United States, or of a single High Contracting Party. The contracts, therefore, cannot come within the purview of the first category of international transportation. Neither can it be under the second category since there was NO agreed stopping place within a territory subject to the sovereignty, mandate, or authority of another power. It must be underscored that the first category of international transportation under the Warsaw Convention is based on "the contract made by the parties." TWA does not claim that the Manila-Los Angeles contracts of transportation which brought Purita and Carmina to Los Angeles were also its contracts. It does not deny the assertion of the petitioners that those contracts were independent of the TWA tickets issued in Bangkok, Thailand. No evidence was offered that TWA and PAL had an agreement concerning transportation of passengers from points of departures not served with aircrafts of one or the other. There could have been no difficulty for such agreement, since TWA admitted without qualification in paragraph 1 of its Answer to the second Amended Complaint the allegation in paragraph 1.1 of the latter that TWA "is a foreign corporation licensed to do business in the Philippines with office address at Ground Floor, Saville Building, Sen. Gil J. Puyat Avenue, corner Paseo de Roxas, Makati, Metro Manila."cralaw virtua1aw library
4. REMEDIAL LAW; ACTIONS; MOTION TO DISMISS; EVIDENCE SHOULD HAVE BEEN OFFERED AT THE PRELIMINARY HEARING. — TWA should have offered evidence for its affirmative defenses at the preliminary hearing therefor. Section 5 of Rule 16 of the Rules of Court expressly provides: SEC. 5. Pleading grounds as affirmative defenses. — Any of the grounds for dismissal provided for in this rule, except improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had thereon as if a motion to dismiss had been filed. Without any further evidence as earlier discussed, the trial court should have denied the affirmative defense of lack of jurisdiction because it did not appear to be indubitable. Section 3 of Rule 16 of the Rules of Court provides: SEC. 3. Hearing and order. — After hearing the court may deny or grant the motion or allow amendment of pleading, or may defer the hearing and determination of the motion until the trial if the ground alleged therein does not appear to be indubitable.
D E C I S I O N
DAVIDE, JR., J.:
The main issue in this petition for review under Rule 45 of the Rules of Court is the applicability of Article 28(1) of the Warsaw Convention; 1 which provides as follows:chanrob1es virtual 1aw library
ARTICLE 28.(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 of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.
We are urged by the petitioners to reverse the 31 May 1995 Decision of the Court of Appeals in CA-G.R. CV No. 39896 2 affirming the 24 July 1992 Order of the Regional Trial Court of Quezon City Branch 102, which dismissed Civil Case No. Q-91-9620 3 on the ground of lack of jurisdiction in view of the aforementioned Article 28(1) of the Warsaw Convention.
The antecedent facts, as summarized by the Court of Appeals, are as follows:chanrob1es virtual 1aw library
Plaintiffs Cornelio P. Mapa and Purita S. Mapa are respectable members of the society. Mr. Mapa is an established businessman and currently the Regional General Manager of Akerlund and Rausing, a multinational packaging material manufacturer based in Manila. He was previously the Senior Vice President of Phimco Industries, an affiliate company of Swedish Match Company. Mrs. Mapa is a successful businesswoman engaged in the commercial transactions of high value antique and oriental arts decor items originating from Asian countries. Carmina S. Mapa is the daughter of plaintiffs Purita and Cornelio and is a graduate of the International School in Bangkok, Thailand, now presently enrolled at the Boston University where she is majoring in communication.chanroblesvirtuallawlibrary
Plaintiffs Mapa entered into contract of air transportation with defendant TWA as evidenced by TWA ticket Nos. 015:9475:153:304 and 015:9475:153:305, purchased in Bangkok, Thailand. Said TWA tickets are for Los Angeles-New York-Boston-St. Louis-Chicago. . .
Domicile of carrier TWA is Kansas City, Missouri, USA. Its principal place of business is Kansas City, Missouri, USA. TWA’s place of business through which the contracts were made is Bangkok, Thailand. The place of destination is Chicago, USA.
On August 10, 1990, plaintiffs Carmina and Purita left Manila on board PAL flight NO. 104 for Los Angeles. Carmina was to commence schooling and thus was accompanied by Purita to assist her in settling down at the University.
They arrived in Los Angeles on the same date and stayed there until August 14, 1990 when they left for New York City.
On August 14, 1990, plaintiffs Purita and Carmina S. Mapa arrived at the John F. Kennedy (JFK) Airport, New York, on TWA Flight No. 904.
On August 27, 1990, plaintiffs Purita and Carmina S. Mapa departed for Boston, taking a connecting flight on TWA’s carrier, TW 0901, from JFK Airport, New York, to Boston’s Logan Airport, checking in seven (7) pieces of luggage at the TWA counter in the JFK Airport. The seven baggages were received by a porter who issued seven TWA baggage receipts numbered 17-8270, 71, 72, 73, 74, 75, and 76 therefor.
From the entrance gate of the terminal building, plaintiffs Purita and Carmina proceeded to TWA’s ticket counter and presented their confirmed TWA tickets numbered 015:9475:153:304 and 015:9475:153:305 with a 3:00 p.m. departure time. They were issued their boarding passes and were instructed to proceed to gate 35 for boarding. At about 2:40 p.m., plaintiffs noticed that there was still no instruction to board the aircraft so they made inquiries. The TWA ground stewardess informed plaintiffs that they were at the wrong gate because their flight was boarding at gate 1. Upon hearing this, plaintiffs rushed to gate 1 which was in another building terminal. At gate 1, they were told by a TWA ground stewardess that flight 901 had just departed. However, they were consoled that another TWA flight was leaving for Boston after 30 minutes and plaintiffs could use the same boarding pass for the next flight. At around 3:15 p.m., plaintiffs Purita and Carmina were able to board the next flight. However, the plane was not immediately cleared for take off on account of a thunderstorm. The passengers were instructed to stay inside the aircraft until 6:00 p.m. when the plane finally left for Boston.
Upon arriving in Boston, plaintiffs Purita and Carmina proceeded to the carousel to claim their baggages and found only three out of the seven they checked in, to wit: one Samsonite on the carousel, another Samsonite lying on the floor near the carousel and a third baggage, an American Tourister, inside the unclaimed baggage office. Plaintiffs immediately reported the loss of their four baggages to the TWA Baggage Office at Logan Airport. TWA’s representative confidently assured them that their baggages would be located within 24 hours and not more than 48 hours.
On September 2, 1990, plaintiffs received a letter from TWA, signed by Mr. J.A. Butler, Customer Relations-Baggage Service, apologizing for TWA’s failure to locate the missing luggage and requesting plaintiffs to accomplish a passenger property questionnaire to facilitate a further intensive and computerized search for the lost luggage. Plaintiffs duly accomplished the passenger property questionnaire, taking pains to write down in detail the contents of each missing baggage. The total value of the lost items amounted to $11,283.79
On September 20, 1990, plaintiffs’ counsel wrote TWA thru its General Sales Manager in the Philippines, Daniel Tuason, with office address at Ground Floor, Saville Building, Sen. Gil J. Puyat Avenue corner Paseo de Roxas, Makati, Metro Manila demanding indemnification for the grave damage and injury suffered by the plaintiffs.
TWA again assured plaintiffs that intensive search was being conducted.
On October 8, 1990, TWA offered to amicably settle the case by giving plaintiffs-appellants two options: (a) transportation credit for future TWA travel or (b) cash settlement. Five months lapsed without any result on TWA’s intensive search.
On January 3, 1991, plaintiffs-appellants opted for transportation credit for future TWA travel
On January 11, 1991, TWA disregarded plaintiffs’ option and unilaterally declared the payment of $2,560.00 as constituting full satisfaction of the plaintiffs’ claim.
On July 19, 1991, plaintiffs accepted the check for $2,560.00 as partial payment for the actual cost of their lost baggages and their contents.
Despite demands by plaintiffs, TWA failed and refused without just cause to indemnify and redress plaintiffs for the grave injury and damages they have suffered. 4
Purita S. Mapa, Carmina S. Mapa, and Cornelio P. Mapa (herein petitioners) then filed with the trial court on 1 August 1991 a complaint 5 for damages, 6 which was docketed as Civil Case No. Q-91-9620. Before a responsive pleading was filed, the petitioners filed an Amended Complaint. 7 They prayed that after due trial private respondent Trans-World Airlines, Inc. (hereafter, TWA), be ordered to pay them the following amounts: (1) US$8,723.79, or its equivalent in Philippine currency, representing the cost of the lost luggage and its contents; (2) US$2,949.50, or its equivalent in Philippine currency, representing the cost of hotel, board and lodging, and communication expenses; (3) P1 million, by way of moral damages; (4) P1 million, by way of exemplary damages, with legal interest on said amounts from the date of extrajudicial demand thereof; and (5) P500,000.00 as attorney’s fees, cost of the suit, and other expenses of litigation. 8
On 26 February 1992, TWA filed its Answer to the Amended Complaint raising, as special and affirmative defense, lack of jurisdiction of Philippine courts over the action for damages in that pursuant to Article 28(1) of the Warsaw Convention, the action could only be brought either in Bangkok where the contract was entered into, or in Boston which was the place of destination, or in Kansas City which is the carrier’s domicile and principal place of business.
TWA further alleged that pursuant to the Warsaw Convention and the Notice of Baggage Limitations at the back of the tickets, its liability to the petitioners is limited to US$9.07 per pound, or US$20.00 per kilo, which is in lieu of actual and compensatory damages. Even assuming that petitioners’ bag weighed the maximum acceptable weight of 70 pounds, TWA’s maximum liability is $640.00 per bag or $2,560.00 for the four pieces of baggage, which the petitioners have been offered and have accepted. TWA also submitted that it could not be liable for moral and exemplary damages and attorney’s fees because it did not act in a wanton, fraudulent, reckless, oppressive, or malevolent manner. 9
On 7 February 1992, the petitioners filed their second Amended Complaint 10 to include a claim of US$2,500, or its equivalent in Philippine Currency, representing the additional replacement cost of the items and personal effects contained in their lost luggage; and US$4,500 representing the travel expenses, hotel, lodging, food and other expenses of petitioner Cornelio Mapa, who was constrained to join his family in Boston to extend the necessary assistance in connection with the lost luggage.
After the filing of TWA’s Answer to the second Amended Complaint, 11 and petitioners’ Reply thereto, the trial court gave TWA ten days within which to submit a memorandum in support of its affirmative defenses; after which the incident would be deemed submitted for resolution. 12 However, after TWA filed its Memorandum, 13 the trial court gave the petitioners five days within which to file a reply memorandum; and TWA, two days from receipt of the latter to file its comment thereon. 14 The petitioners then filed their Opposition (by way of Reply Memorandum) 15 to which TWA filed a Reply. 16 Thereafter, the petitioners submitted a Rejoinder 17; TWA, a Surrejoinder. 18
On 24 July 1992, the trial court issued an Order 19 dismissing the case for lack of jurisdiction in light of Article 28(1) of the Warsaw Convention. Thus:chanrob1es virtual 1aw library
It is plaintiffs’ theory that the Warsaw Convention does not apply to the instant case because plaintiffs’ contract of transportation does not constitute "international transportation" as defined in said convention. This however is belied by the Passenger Property Questionnaire which is Annex C of plaintiffs’ amended complaint. Page two of said questionnaire accomplished by plaintiffs under the heading "Your Complete Itinerary" shows that the TWA tickets issued to the plaintiffs form part of the contract of transportation to be performed from Manila to the United States. Since the Philippines and the United States are parties to the convention, plaintiffs’ contracts of transportation come within the meaning of International Transportation.
On the basis of the foregoing, the Court holds that the Warsaw Convention is applicable to the case at bar, even if the basis of plaintiffs’ present action is breach of contract of carriage under the New Civil Code.
The next question to be resolved is whether or not the Court has jurisdiction to try the present case in the light of the provision Art. 28(1) above-quoted.
Under Art. 28(1) supra, a complaint for damages against an air carrier can be instituted only in any of the following places/courts:chanrob1es virtual 1aw library
(1) The court of the domicile of the carrier;
(2) The court of its principal place of business;
(3) The court where it has a place of business through which the contract had been made;
(4) The court of the place of destination.
In interpreting the provision of Art. 28(1) of the Warsaw Convention, the Supreme Court in the same case of Augusto Benedicto Santos v. Northwest Airlines held:chanrob1es virtual 1aw library
Whether Article 28(1) refers to jurisdiction or only to venue is a question over which authorities are sharply divided. While the petitioner cites several cases holding that Article 28(1) refers to venue rather that jurisdiction, there are later cases cited by the private respondent supporting the conclusion that the provision is jurisdictional.
Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by consent or waiver upon a court which otherwise would have no jurisdiction over the subject-matter of an action; but the venue of an action is fixed by statute may be changed by the consent of the parties and an objection that the plaintiff brought his suit in the wrong country may be waived by the failure of the defendant to make a timely objection. In either case, the court may render a valid judgment. Rules as to jurisdiction can never be left to the consent or agreement of the parties, whether or not a prohibition exists against their alteration.
A number of reasons tends to support the characterization of Article 28(1) as jurisdiction and not a venue provision. First, the wording of Article 32, which indicates the places where the action for damages "must" be brought, underscores the mandatory nature of Article 28(1). Second, this characterization is consistent with one of the objectives of the Convention, which is to "regulate in a uniform manner the conditions of international transportation by air." Third, the Convention does not contain any provision prescribing rules of jurisdiction other than Article 28(1), which means that the phrase "rules as to jurisdiction" used in Article 32 must refer only to Article 28(1). In fact, the last sentence of Article 32 specifically deals with the exclusive enumeration in Article 28(1) as "jurisdiction," which, as such, cannot be left to the will of the parties regardless of the time when the damage occurred."cralaw virtua1aw library
It has been shown by the defendant that the domicile of the defendant Trans World Airlines, Inc. is Kansas City, Missouri, its principal place of business is also in Kansas City, Missouri, the carrier’s place of business through which the contracts were made is Bangkok (Annexes A and A-1, Amended Complaint), and the place of destination was Boston.
The Philippines not being one of the places specified in Art. 28(1) abovequoted where the complaint may be instituted, this Court therefore, does not have jurisdiction over the present case.
Evidently discontented with the trial court’s order, the petitioners appealed to the Court of Appeals, contending that the lower court erred in not holding that (1) it has jurisdiction over the instant case and (2) the Warsaw Convention is inapplicable in the instant case because the subject matter of the case is not included within the coverage of the said convention. 20 They claimed that their cause of action could be based on breach of contract of air carriage founded on Articles 1733, 1734, 1735, 1755, and 1756 of the New Civil Code governing common carriers or Article 2176 of the same Code governing tort or quasi-delict.
The appellate court disagreed with the petitioners and affirmed the order of the trial court. It held that the Warsaw Convention is the law which governs the dispute between the petitioners and TWA because what is involved in international transportation defined by said Convention in Article I(2). This holding is founded on its determination that the two TWA tickets for Los Angeles-New York-Boston-St. Louis-Chicago purchased in Bangkok, Thailand, were issued in conjunction with, and therefore formed part of, the contract of transportation performed from Manila, Philippines, to the United States.
The respondent court further held that the cause of action of the petitioners arose from the loss of the four checked pieces of baggage, which then falls under Article 18(1), Chapter III (Liability of the Carrier) of the Warsaw Convention. 21 Pursuant to Article 24(1) of the Convention, all actions for damages, whether based on tort, code law of common law, arising from loss of baggage under Article 18 of the Warsaw Convention, can only be brought subject to the conditions and limits set forth in the Warsaw Convention. Article 28(1) thereof sets forth conditions and limits in that the action for damages may be instituted only in the territory of one of the High Contracting Parties, before the court of (1) the domicile of the carrier, (2) the carrier’s principal place of business, (3) the place of business through which the contract has been made, or (4) the place of destination. Since the Philippines is not one of these places, a Philippine Court, like the RTC, has no jurisdiction over the complaint for damages.
Respondent Court of Appeals likewise held that the petitioners could not claim application of Articles 1733, 1734, 1735, 1755, and 1756 of the New Civil code on common carriers without taking into consideration Article 1753 of the same Code, which provides that the law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction, or deterioration. Since the country of ultimate destination is Chicago, the law of Chicago shall govern the liability of TWA for the loss of the four pieces of baggage. Neither is Article 2176 of the New Civil code on torts or quasi-delicts applicable in view of the private international law principle of lex loci delicti commissi. 22 In addition, comformably with Santos III v. Northwest Orient Airlines, 23 mere allegation of willful misconduct resulting in a tort is insufficient to exclude the case from the comprehension of the Warsaw Convention.
Failing in their bid to reconsider the decision, the petitioners filed this petition. They aver that respondent Court of Appeals gravely erred (1) in holding that the Warsaw Convention is applicable to this case and (2) in applying Article 1753 of the Civil Code and the principle of lex loci delicti commissi. 24
We resolved to give due course to the petition after the filing by TWA of its Comment on the petition and noted without action for the reasons stated in the resolution of 25 September 1996 petitioners’ Reply and Rejoinder. We then required the parties to submit their respective memoranda. They did in due time.
The petitioners insist that the Warsaw Convention is not applicable to their case because the contracts they had with TWA did not involve an international transportation. Whether the contracts were of international transportation is to be solely determined from the TWA tickets issued to them in Bangkok, Thailand, which showed that their itinerary was Los Angeles-New-York-Boston-St. Louis-Chicago. Accordingly, since the place of departure (Los Angeles) and the place of destination (Chicago) are both within the territory of one High Contracting Party, with no agreed stopping place in a territory subject to the sovereignty, mandate, suzerainty or authority of another Power, the contracts did not constitute ‘international transportation’ as defined by the convention. They also claim to be without legal basis the contention of TWA that their transportation contracts were of international character because of the handwritten notations in the tickets re "INT’L TKT #079-4402956821-2" and INT’L TKT #079-4402956819." Notwithstanding such notations, the TWA tickets, viz., (a) No. 015:9475:153:304 and (b) No. 015:9475:153:305 did not cease to be for the itinerary therein designated. Besides, it is a fact that petitioners Purita and Carmina Mapa traveled from Manila to Los Angeles via Philippine Airlines (PAL) by virtue of PAL tickets issued independently of the TWA tickets.
The pith issue to be resolved under the petitioners’ first assigned error is whether the contracts of transportation between Purita and Carmina Mapa, on the one hand, and TWA, on the other, were contracts of "international transportation" under the Warsaw Convention. If they were, then we should sustain the trial court and the Court of Appeals in light of our ruling in Santos v. Northwest Orient Airlines. 25 It appears clear to us that TWA itself, the trial court, and the Court of Appeals, impliedly admit that if the sole basis were the two TWA tickets for Los Angeles-New-York-Boston-St. Louis-Chicago, the contracts cannot be brought within the term "international transportation," as defined in Article I(2) of the Warsaw Convention. As provided therein, a contract is one of international transportation only if
according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, mandate or authority of another power, even though that power is not a party to this convention.
There are then two categories of international transportation, viz., (1) that where the place of departure and the place of destination are situated within the territories of two High Contracting Parties regardless of whether or not there be a break in the transportation or a transshipment; and (2) that where the place of departure and the place of destination are within the territory of a single High Contracting Party if there is an agreed stopping place within a territory subject to the sovereignty, mandate, or authority of another power, even though the power is not a party to the Convention.
The High Contracting Parties referred to in the Convention are the signatories thereto and those which subsequently adhered to it. In the case of the Philippines, the Convention was concurred in by the Senate, through Resolution No. 19, on 16 May 1950. The Philippine instrument of accession was signed by President Elpidio Quirino on 13 October 1950 and was deposited with the Polish Government on 9 November 1950. The Convention became applicable to the Philippines on 9 February 1951. Then, on 23 September 1955, President Ramon Magsaysay issued Proclamation No. 201, declaring the Philippines’ formal adherence thereto, "to the end that the same and every article and clause thereof may be observed and fulfilled in good faith by the Republic of the Philippines and the citizens thereof. 26
The contracts of transportation in this case are evidenced by the two TWA tickets, No. 015:9475:153:304 and No. 015:9475:153:305, both purchased and issued in Bangkok, Thailand. On the basis alone of the provisions therein, it is obvious that the place of departure and the place of destination are all in the territory of the United States, or of a single High Contracting Party. The contracts, therefore, cannot come within the purview of the first category of international transportation. Neither can it be under the second category since there was NO agreed stopping place within a territory subject to the sovereignty, mandate, or authority of another power.
The only way to bring the contracts between Purita and Carmina Mapa, on the one hand, and TWA, on the other, within the first category of "international transportation" is to link them with, or to make them an integral part of, the Manila-Los Angeles travel of Purita and Carmina through PAL aircraft. The "linkages" which have been pointed out by the TWA, the trial court, and the Court of Appeals are (1) the handwritten notations, viz., INT’L TKT #079-4402956821-2 and INT’L TKT #079-4402956819, on the two TWA tickets; and (2) the entries made by petitioners Purita and Carmina Mapa in column YOUR COMPLETE ITINERARY in TWA’s Passenger Property Questionnaire, wherein they mentioned their travel from Manila to Los Angeles in flight PR 102.
The alleged "international tickets" mentioned in the notations in conjunction with which the two TWA tickets were issued were not presented.. Clearly then, there is at all no factual basis of the finding that the TWA tickets were issued in conjunction with the international tickets, which are even, at least as of now, non-existent.
As regards the petitioner’s entry in YOUR COMPLETE ITINERARY column of the Passenger Property Questionnaire wherein they included the Manila-Los Angeles travel, it must be pointed out that this was made on 4 September 1990 27 by petitioners Purita and Carmina Mapa, and only in connection with their claim for their lost pieces of baggage. The loss occurred much earlier, or on 27 August 1990. The entry can by no means be considered as a part of, or supplement to, their contracts of transportation evidenced by the TWA tickets which covered transportation within the United States only.
It must be underscored that the first category of international transportation under the Warsaw Convention is based on "the contract made by the parties." TWA does not claim that the Manila-Los Angeles contracts of transportation which brought Purita and Carmina to Los Angeles were also its contracts. It does not deny the assertion of the petitioners that those contracts were independent of the TWA tickets issued in Bangkok, Thailand. No evidence was offered that TWA and PAL had an agreement concerning transportation of passengers from points of departures not served with aircrafts of one or the other. There could have been no difficulty for such agreement, since TWA admitted without qualification in paragraph 1 of its Answer 28 to the second Amended Complaint the allegation in paragraph 1.1 of the latter 29 that TWA "is a foreign corporation licensed to do business in the Philippines with office address at Ground Floor, Saville Building, Sen. Gil. J. Puyat Avenue, corner Paseo de Roxas, Makati, Metro Manila."cralaw virtua1aw library
TWA relies on Article I(3) of the Convention, which provides as follows:chanrob1es virtual 1aw library
3. A carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, to be one undivided carriage, if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or a series of contracts, and it shall not lose its international character merely because one contract or a series of contracts is to be performed entirely within a territory subject to the sovereignty, suzerainty, mandate, or authority of the same High Contracting Party.
It also points to Article 15 of the IATA Recommend Practice 1724, which provides: Carriage to be performed by several successive carriers under one ticket, or under a ticket and any conjunction ticket issued in connection therewith, is regarded as a single operation." 30
The flaw of respondents’ position is the presumption that the parties have "regarded" as an "undivided carriage" or as a "single operation" the carriage from Manila to Los Angeles through PAL then to New York-Boston-St. Louis-Chicago through TWA. The dismissal then of the second Amended Complaint by the trial court and the Court of Appeals’ affirmance of the dismissal were not based on indubitable facts or grounds, but on inferences without established factual basis.
TWA should have offered evidence for its affirmative defenses at the preliminary hearing therefor. Section 5 of Rule 16 of the Rules of Court expressly provides:chanrob1es virtual 1aw library
SEC. 5. Pleading grounds as affirmative defenses. — Any of the grounds for dismissal provided for in this rule, except improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had thereon as if a motion to dismiss had been filed.
Without any further evidence as earlier discussed, the trial court should have denied the affirmative defense of lack of jurisdiction because it did not appear to be indubitable. Section 3 of Rule 16 of the Rules of Court provides:chanrob1es virtual 1aw library
SEC. 3. Hearing and order. — After hearing the court may deny or grant the motion or allow amendment of pleading, or may defer the hearing and determination of the motion until the trial if the ground alleged therein does not appear to be indubitable.chanroblesvirtuallawlibrary:red
WHEREFORE, the instant petition is GRANTED and the challenged decision of 31 May 1995 of respondent Court of Appeals in CA-G.R. CV No. 39896, as well as the Order of 24 July 1992 of the Regional Trial Court of Quezon City, Branch 102, in Civil Case No. Q-91-9620, is REVERSED and SET ASIDE.
The Regional Trial Court of Quezon City, Branch 102, is hereby DIRECTED to proceed with the pre-trial, if it has not been terminated, and with the trial on the merits of the case and then to render judgment thereon, taking into account the foregoing observations on the issue of jurisdiction.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
ARTICLE 28.(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 of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.
We are urged by the petitioners to reverse the 31 May 1995 Decision of the Court of Appeals in CA-G.R. CV No. 39896 2 affirming the 24 July 1992 Order of the Regional Trial Court of Quezon City Branch 102, which dismissed Civil Case No. Q-91-9620 3 on the ground of lack of jurisdiction in view of the aforementioned Article 28(1) of the Warsaw Convention.
The antecedent facts, as summarized by the Court of Appeals, are as follows:chanrob1es virtual 1aw library
Plaintiffs Cornelio P. Mapa and Purita S. Mapa are respectable members of the society. Mr. Mapa is an established businessman and currently the Regional General Manager of Akerlund and Rausing, a multinational packaging material manufacturer based in Manila. He was previously the Senior Vice President of Phimco Industries, an affiliate company of Swedish Match Company. Mrs. Mapa is a successful businesswoman engaged in the commercial transactions of high value antique and oriental arts decor items originating from Asian countries. Carmina S. Mapa is the daughter of plaintiffs Purita and Cornelio and is a graduate of the International School in Bangkok, Thailand, now presently enrolled at the Boston University where she is majoring in communication.chanroblesvirtuallawlibrary
Plaintiffs Mapa entered into contract of air transportation with defendant TWA as evidenced by TWA ticket Nos. 015:9475:153:304 and 015:9475:153:305, purchased in Bangkok, Thailand. Said TWA tickets are for Los Angeles-New York-Boston-St. Louis-Chicago. . .
Domicile of carrier TWA is Kansas City, Missouri, USA. Its principal place of business is Kansas City, Missouri, USA. TWA’s place of business through which the contracts were made is Bangkok, Thailand. The place of destination is Chicago, USA.
On August 10, 1990, plaintiffs Carmina and Purita left Manila on board PAL flight NO. 104 for Los Angeles. Carmina was to commence schooling and thus was accompanied by Purita to assist her in settling down at the University.
They arrived in Los Angeles on the same date and stayed there until August 14, 1990 when they left for New York City.
On August 14, 1990, plaintiffs Purita and Carmina S. Mapa arrived at the John F. Kennedy (JFK) Airport, New York, on TWA Flight No. 904.
On August 27, 1990, plaintiffs Purita and Carmina S. Mapa departed for Boston, taking a connecting flight on TWA’s carrier, TW 0901, from JFK Airport, New York, to Boston’s Logan Airport, checking in seven (7) pieces of luggage at the TWA counter in the JFK Airport. The seven baggages were received by a porter who issued seven TWA baggage receipts numbered 17-8270, 71, 72, 73, 74, 75, and 76 therefor.
From the entrance gate of the terminal building, plaintiffs Purita and Carmina proceeded to TWA’s ticket counter and presented their confirmed TWA tickets numbered 015:9475:153:304 and 015:9475:153:305 with a 3:00 p.m. departure time. They were issued their boarding passes and were instructed to proceed to gate 35 for boarding. At about 2:40 p.m., plaintiffs noticed that there was still no instruction to board the aircraft so they made inquiries. The TWA ground stewardess informed plaintiffs that they were at the wrong gate because their flight was boarding at gate 1. Upon hearing this, plaintiffs rushed to gate 1 which was in another building terminal. At gate 1, they were told by a TWA ground stewardess that flight 901 had just departed. However, they were consoled that another TWA flight was leaving for Boston after 30 minutes and plaintiffs could use the same boarding pass for the next flight. At around 3:15 p.m., plaintiffs Purita and Carmina were able to board the next flight. However, the plane was not immediately cleared for take off on account of a thunderstorm. The passengers were instructed to stay inside the aircraft until 6:00 p.m. when the plane finally left for Boston.
Upon arriving in Boston, plaintiffs Purita and Carmina proceeded to the carousel to claim their baggages and found only three out of the seven they checked in, to wit: one Samsonite on the carousel, another Samsonite lying on the floor near the carousel and a third baggage, an American Tourister, inside the unclaimed baggage office. Plaintiffs immediately reported the loss of their four baggages to the TWA Baggage Office at Logan Airport. TWA’s representative confidently assured them that their baggages would be located within 24 hours and not more than 48 hours.
On September 2, 1990, plaintiffs received a letter from TWA, signed by Mr. J.A. Butler, Customer Relations-Baggage Service, apologizing for TWA’s failure to locate the missing luggage and requesting plaintiffs to accomplish a passenger property questionnaire to facilitate a further intensive and computerized search for the lost luggage. Plaintiffs duly accomplished the passenger property questionnaire, taking pains to write down in detail the contents of each missing baggage. The total value of the lost items amounted to $11,283.79
On September 20, 1990, plaintiffs’ counsel wrote TWA thru its General Sales Manager in the Philippines, Daniel Tuason, with office address at Ground Floor, Saville Building, Sen. Gil J. Puyat Avenue corner Paseo de Roxas, Makati, Metro Manila demanding indemnification for the grave damage and injury suffered by the plaintiffs.
TWA again assured plaintiffs that intensive search was being conducted.
On October 8, 1990, TWA offered to amicably settle the case by giving plaintiffs-appellants two options: (a) transportation credit for future TWA travel or (b) cash settlement. Five months lapsed without any result on TWA’s intensive search.
On January 3, 1991, plaintiffs-appellants opted for transportation credit for future TWA travel
On January 11, 1991, TWA disregarded plaintiffs’ option and unilaterally declared the payment of $2,560.00 as constituting full satisfaction of the plaintiffs’ claim.
On July 19, 1991, plaintiffs accepted the check for $2,560.00 as partial payment for the actual cost of their lost baggages and their contents.
Despite demands by plaintiffs, TWA failed and refused without just cause to indemnify and redress plaintiffs for the grave injury and damages they have suffered. 4
Purita S. Mapa, Carmina S. Mapa, and Cornelio P. Mapa (herein petitioners) then filed with the trial court on 1 August 1991 a complaint 5 for damages, 6 which was docketed as Civil Case No. Q-91-9620. Before a responsive pleading was filed, the petitioners filed an Amended Complaint. 7 They prayed that after due trial private respondent Trans-World Airlines, Inc. (hereafter, TWA), be ordered to pay them the following amounts: (1) US$8,723.79, or its equivalent in Philippine currency, representing the cost of the lost luggage and its contents; (2) US$2,949.50, or its equivalent in Philippine currency, representing the cost of hotel, board and lodging, and communication expenses; (3) P1 million, by way of moral damages; (4) P1 million, by way of exemplary damages, with legal interest on said amounts from the date of extrajudicial demand thereof; and (5) P500,000.00 as attorney’s fees, cost of the suit, and other expenses of litigation. 8
On 26 February 1992, TWA filed its Answer to the Amended Complaint raising, as special and affirmative defense, lack of jurisdiction of Philippine courts over the action for damages in that pursuant to Article 28(1) of the Warsaw Convention, the action could only be brought either in Bangkok where the contract was entered into, or in Boston which was the place of destination, or in Kansas City which is the carrier’s domicile and principal place of business.
TWA further alleged that pursuant to the Warsaw Convention and the Notice of Baggage Limitations at the back of the tickets, its liability to the petitioners is limited to US$9.07 per pound, or US$20.00 per kilo, which is in lieu of actual and compensatory damages. Even assuming that petitioners’ bag weighed the maximum acceptable weight of 70 pounds, TWA’s maximum liability is $640.00 per bag or $2,560.00 for the four pieces of baggage, which the petitioners have been offered and have accepted. TWA also submitted that it could not be liable for moral and exemplary damages and attorney’s fees because it did not act in a wanton, fraudulent, reckless, oppressive, or malevolent manner. 9
On 7 February 1992, the petitioners filed their second Amended Complaint 10 to include a claim of US$2,500, or its equivalent in Philippine Currency, representing the additional replacement cost of the items and personal effects contained in their lost luggage; and US$4,500 representing the travel expenses, hotel, lodging, food and other expenses of petitioner Cornelio Mapa, who was constrained to join his family in Boston to extend the necessary assistance in connection with the lost luggage.
After the filing of TWA’s Answer to the second Amended Complaint, 11 and petitioners’ Reply thereto, the trial court gave TWA ten days within which to submit a memorandum in support of its affirmative defenses; after which the incident would be deemed submitted for resolution. 12 However, after TWA filed its Memorandum, 13 the trial court gave the petitioners five days within which to file a reply memorandum; and TWA, two days from receipt of the latter to file its comment thereon. 14 The petitioners then filed their Opposition (by way of Reply Memorandum) 15 to which TWA filed a Reply. 16 Thereafter, the petitioners submitted a Rejoinder 17; TWA, a Surrejoinder. 18
On 24 July 1992, the trial court issued an Order 19 dismissing the case for lack of jurisdiction in light of Article 28(1) of the Warsaw Convention. Thus:chanrob1es virtual 1aw library
It is plaintiffs’ theory that the Warsaw Convention does not apply to the instant case because plaintiffs’ contract of transportation does not constitute "international transportation" as defined in said convention. This however is belied by the Passenger Property Questionnaire which is Annex C of plaintiffs’ amended complaint. Page two of said questionnaire accomplished by plaintiffs under the heading "Your Complete Itinerary" shows that the TWA tickets issued to the plaintiffs form part of the contract of transportation to be performed from Manila to the United States. Since the Philippines and the United States are parties to the convention, plaintiffs’ contracts of transportation come within the meaning of International Transportation.
x x x
On the basis of the foregoing, the Court holds that the Warsaw Convention is applicable to the case at bar, even if the basis of plaintiffs’ present action is breach of contract of carriage under the New Civil Code.
The next question to be resolved is whether or not the Court has jurisdiction to try the present case in the light of the provision Art. 28(1) above-quoted.
Under Art. 28(1) supra, a complaint for damages against an air carrier can be instituted only in any of the following places/courts:chanrob1es virtual 1aw library
(1) The court of the domicile of the carrier;
(2) The court of its principal place of business;
(3) The court where it has a place of business through which the contract had been made;
(4) The court of the place of destination.
In interpreting the provision of Art. 28(1) of the Warsaw Convention, the Supreme Court in the same case of Augusto Benedicto Santos v. Northwest Airlines held:chanrob1es virtual 1aw library
Whether Article 28(1) refers to jurisdiction or only to venue is a question over which authorities are sharply divided. While the petitioner cites several cases holding that Article 28(1) refers to venue rather that jurisdiction, there are later cases cited by the private respondent supporting the conclusion that the provision is jurisdictional.
Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by consent or waiver upon a court which otherwise would have no jurisdiction over the subject-matter of an action; but the venue of an action is fixed by statute may be changed by the consent of the parties and an objection that the plaintiff brought his suit in the wrong country may be waived by the failure of the defendant to make a timely objection. In either case, the court may render a valid judgment. Rules as to jurisdiction can never be left to the consent or agreement of the parties, whether or not a prohibition exists against their alteration.
A number of reasons tends to support the characterization of Article 28(1) as jurisdiction and not a venue provision. First, the wording of Article 32, which indicates the places where the action for damages "must" be brought, underscores the mandatory nature of Article 28(1). Second, this characterization is consistent with one of the objectives of the Convention, which is to "regulate in a uniform manner the conditions of international transportation by air." Third, the Convention does not contain any provision prescribing rules of jurisdiction other than Article 28(1), which means that the phrase "rules as to jurisdiction" used in Article 32 must refer only to Article 28(1). In fact, the last sentence of Article 32 specifically deals with the exclusive enumeration in Article 28(1) as "jurisdiction," which, as such, cannot be left to the will of the parties regardless of the time when the damage occurred."cralaw virtua1aw library
It has been shown by the defendant that the domicile of the defendant Trans World Airlines, Inc. is Kansas City, Missouri, its principal place of business is also in Kansas City, Missouri, the carrier’s place of business through which the contracts were made is Bangkok (Annexes A and A-1, Amended Complaint), and the place of destination was Boston.
The Philippines not being one of the places specified in Art. 28(1) abovequoted where the complaint may be instituted, this Court therefore, does not have jurisdiction over the present case.
Evidently discontented with the trial court’s order, the petitioners appealed to the Court of Appeals, contending that the lower court erred in not holding that (1) it has jurisdiction over the instant case and (2) the Warsaw Convention is inapplicable in the instant case because the subject matter of the case is not included within the coverage of the said convention. 20 They claimed that their cause of action could be based on breach of contract of air carriage founded on Articles 1733, 1734, 1735, 1755, and 1756 of the New Civil Code governing common carriers or Article 2176 of the same Code governing tort or quasi-delict.
The appellate court disagreed with the petitioners and affirmed the order of the trial court. It held that the Warsaw Convention is the law which governs the dispute between the petitioners and TWA because what is involved in international transportation defined by said Convention in Article I(2). This holding is founded on its determination that the two TWA tickets for Los Angeles-New York-Boston-St. Louis-Chicago purchased in Bangkok, Thailand, were issued in conjunction with, and therefore formed part of, the contract of transportation performed from Manila, Philippines, to the United States.
The respondent court further held that the cause of action of the petitioners arose from the loss of the four checked pieces of baggage, which then falls under Article 18(1), Chapter III (Liability of the Carrier) of the Warsaw Convention. 21 Pursuant to Article 24(1) of the Convention, all actions for damages, whether based on tort, code law of common law, arising from loss of baggage under Article 18 of the Warsaw Convention, can only be brought subject to the conditions and limits set forth in the Warsaw Convention. Article 28(1) thereof sets forth conditions and limits in that the action for damages may be instituted only in the territory of one of the High Contracting Parties, before the court of (1) the domicile of the carrier, (2) the carrier’s principal place of business, (3) the place of business through which the contract has been made, or (4) the place of destination. Since the Philippines is not one of these places, a Philippine Court, like the RTC, has no jurisdiction over the complaint for damages.
Respondent Court of Appeals likewise held that the petitioners could not claim application of Articles 1733, 1734, 1735, 1755, and 1756 of the New Civil code on common carriers without taking into consideration Article 1753 of the same Code, which provides that the law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction, or deterioration. Since the country of ultimate destination is Chicago, the law of Chicago shall govern the liability of TWA for the loss of the four pieces of baggage. Neither is Article 2176 of the New Civil code on torts or quasi-delicts applicable in view of the private international law principle of lex loci delicti commissi. 22 In addition, comformably with Santos III v. Northwest Orient Airlines, 23 mere allegation of willful misconduct resulting in a tort is insufficient to exclude the case from the comprehension of the Warsaw Convention.
Failing in their bid to reconsider the decision, the petitioners filed this petition. They aver that respondent Court of Appeals gravely erred (1) in holding that the Warsaw Convention is applicable to this case and (2) in applying Article 1753 of the Civil Code and the principle of lex loci delicti commissi. 24
We resolved to give due course to the petition after the filing by TWA of its Comment on the petition and noted without action for the reasons stated in the resolution of 25 September 1996 petitioners’ Reply and Rejoinder. We then required the parties to submit their respective memoranda. They did in due time.
The petitioners insist that the Warsaw Convention is not applicable to their case because the contracts they had with TWA did not involve an international transportation. Whether the contracts were of international transportation is to be solely determined from the TWA tickets issued to them in Bangkok, Thailand, which showed that their itinerary was Los Angeles-New-York-Boston-St. Louis-Chicago. Accordingly, since the place of departure (Los Angeles) and the place of destination (Chicago) are both within the territory of one High Contracting Party, with no agreed stopping place in a territory subject to the sovereignty, mandate, suzerainty or authority of another Power, the contracts did not constitute ‘international transportation’ as defined by the convention. They also claim to be without legal basis the contention of TWA that their transportation contracts were of international character because of the handwritten notations in the tickets re "INT’L TKT #079-4402956821-2" and INT’L TKT #079-4402956819." Notwithstanding such notations, the TWA tickets, viz., (a) No. 015:9475:153:304 and (b) No. 015:9475:153:305 did not cease to be for the itinerary therein designated. Besides, it is a fact that petitioners Purita and Carmina Mapa traveled from Manila to Los Angeles via Philippine Airlines (PAL) by virtue of PAL tickets issued independently of the TWA tickets.
The pith issue to be resolved under the petitioners’ first assigned error is whether the contracts of transportation between Purita and Carmina Mapa, on the one hand, and TWA, on the other, were contracts of "international transportation" under the Warsaw Convention. If they were, then we should sustain the trial court and the Court of Appeals in light of our ruling in Santos v. Northwest Orient Airlines. 25 It appears clear to us that TWA itself, the trial court, and the Court of Appeals, impliedly admit that if the sole basis were the two TWA tickets for Los Angeles-New-York-Boston-St. Louis-Chicago, the contracts cannot be brought within the term "international transportation," as defined in Article I(2) of the Warsaw Convention. As provided therein, a contract is one of international transportation only if
according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, mandate or authority of another power, even though that power is not a party to this convention.
There are then two categories of international transportation, viz., (1) that where the place of departure and the place of destination are situated within the territories of two High Contracting Parties regardless of whether or not there be a break in the transportation or a transshipment; and (2) that where the place of departure and the place of destination are within the territory of a single High Contracting Party if there is an agreed stopping place within a territory subject to the sovereignty, mandate, or authority of another power, even though the power is not a party to the Convention.
The High Contracting Parties referred to in the Convention are the signatories thereto and those which subsequently adhered to it. In the case of the Philippines, the Convention was concurred in by the Senate, through Resolution No. 19, on 16 May 1950. The Philippine instrument of accession was signed by President Elpidio Quirino on 13 October 1950 and was deposited with the Polish Government on 9 November 1950. The Convention became applicable to the Philippines on 9 February 1951. Then, on 23 September 1955, President Ramon Magsaysay issued Proclamation No. 201, declaring the Philippines’ formal adherence thereto, "to the end that the same and every article and clause thereof may be observed and fulfilled in good faith by the Republic of the Philippines and the citizens thereof. 26
The contracts of transportation in this case are evidenced by the two TWA tickets, No. 015:9475:153:304 and No. 015:9475:153:305, both purchased and issued in Bangkok, Thailand. On the basis alone of the provisions therein, it is obvious that the place of departure and the place of destination are all in the territory of the United States, or of a single High Contracting Party. The contracts, therefore, cannot come within the purview of the first category of international transportation. Neither can it be under the second category since there was NO agreed stopping place within a territory subject to the sovereignty, mandate, or authority of another power.
The only way to bring the contracts between Purita and Carmina Mapa, on the one hand, and TWA, on the other, within the first category of "international transportation" is to link them with, or to make them an integral part of, the Manila-Los Angeles travel of Purita and Carmina through PAL aircraft. The "linkages" which have been pointed out by the TWA, the trial court, and the Court of Appeals are (1) the handwritten notations, viz., INT’L TKT #079-4402956821-2 and INT’L TKT #079-4402956819, on the two TWA tickets; and (2) the entries made by petitioners Purita and Carmina Mapa in column YOUR COMPLETE ITINERARY in TWA’s Passenger Property Questionnaire, wherein they mentioned their travel from Manila to Los Angeles in flight PR 102.
The alleged "international tickets" mentioned in the notations in conjunction with which the two TWA tickets were issued were not presented.. Clearly then, there is at all no factual basis of the finding that the TWA tickets were issued in conjunction with the international tickets, which are even, at least as of now, non-existent.
As regards the petitioner’s entry in YOUR COMPLETE ITINERARY column of the Passenger Property Questionnaire wherein they included the Manila-Los Angeles travel, it must be pointed out that this was made on 4 September 1990 27 by petitioners Purita and Carmina Mapa, and only in connection with their claim for their lost pieces of baggage. The loss occurred much earlier, or on 27 August 1990. The entry can by no means be considered as a part of, or supplement to, their contracts of transportation evidenced by the TWA tickets which covered transportation within the United States only.
It must be underscored that the first category of international transportation under the Warsaw Convention is based on "the contract made by the parties." TWA does not claim that the Manila-Los Angeles contracts of transportation which brought Purita and Carmina to Los Angeles were also its contracts. It does not deny the assertion of the petitioners that those contracts were independent of the TWA tickets issued in Bangkok, Thailand. No evidence was offered that TWA and PAL had an agreement concerning transportation of passengers from points of departures not served with aircrafts of one or the other. There could have been no difficulty for such agreement, since TWA admitted without qualification in paragraph 1 of its Answer 28 to the second Amended Complaint the allegation in paragraph 1.1 of the latter 29 that TWA "is a foreign corporation licensed to do business in the Philippines with office address at Ground Floor, Saville Building, Sen. Gil. J. Puyat Avenue, corner Paseo de Roxas, Makati, Metro Manila."cralaw virtua1aw library
TWA relies on Article I(3) of the Convention, which provides as follows:chanrob1es virtual 1aw library
3. A carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, to be one undivided carriage, if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or a series of contracts, and it shall not lose its international character merely because one contract or a series of contracts is to be performed entirely within a territory subject to the sovereignty, suzerainty, mandate, or authority of the same High Contracting Party.
It also points to Article 15 of the IATA Recommend Practice 1724, which provides: Carriage to be performed by several successive carriers under one ticket, or under a ticket and any conjunction ticket issued in connection therewith, is regarded as a single operation." 30
The flaw of respondents’ position is the presumption that the parties have "regarded" as an "undivided carriage" or as a "single operation" the carriage from Manila to Los Angeles through PAL then to New York-Boston-St. Louis-Chicago through TWA. The dismissal then of the second Amended Complaint by the trial court and the Court of Appeals’ affirmance of the dismissal were not based on indubitable facts or grounds, but on inferences without established factual basis.
TWA should have offered evidence for its affirmative defenses at the preliminary hearing therefor. Section 5 of Rule 16 of the Rules of Court expressly provides:chanrob1es virtual 1aw library
SEC. 5. Pleading grounds as affirmative defenses. — Any of the grounds for dismissal provided for in this rule, except improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had thereon as if a motion to dismiss had been filed.
Without any further evidence as earlier discussed, the trial court should have denied the affirmative defense of lack of jurisdiction because it did not appear to be indubitable. Section 3 of Rule 16 of the Rules of Court provides:chanrob1es virtual 1aw library
SEC. 3. Hearing and order. — After hearing the court may deny or grant the motion or allow amendment of pleading, or may defer the hearing and determination of the motion until the trial if the ground alleged therein does not appear to be indubitable.chanroblesvirtuallawlibrary:red
WHEREFORE, the instant petition is GRANTED and the challenged decision of 31 May 1995 of respondent Court of Appeals in CA-G.R. CV No. 39896, as well as the Order of 24 July 1992 of the Regional Trial Court of Quezon City, Branch 102, in Civil Case No. Q-91-9620, is REVERSED and SET ASIDE.
The Regional Trial Court of Quezon City, Branch 102, is hereby DIRECTED to proceed with the pre-trial, if it has not been terminated, and with the trial on the merits of the case and then to render judgment thereon, taking into account the foregoing observations on the issue of jurisdiction.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
Endnotes:
1. The full title is Warsaw Convention for Unification of Certain Rules Relating to International Carriage by Air. This was signed at Warsaw, Poland on 12 October 1929. See Philippine Treaty Series, Vol. II, 577-590 [1968].
2. Rollo, 38-52. Per Lantin, J., J., with Austria-Martinez, A. and Salas, B., JJ., concurring.
3. Original Records (OR), Civil Case No. Q-91-9620, 259-264. Per Judge Perlita J. Tria Tirona.
4. Rollo, 41-45.
5. OR, 1-7.
6. For lost luggage and its contents; expenses for hotel, board and lodging, and communication; moral damages; exemplary damages; attorney’s fees; and expenses of litigation.
7. OR, 22 et seq.
8. Id., 27-28.
9. Id., 48-50.
10. OR, 73-82.
11. Id., 100-106.
12. Id., 118
13. Id., 120-130.
14. Id., 173.
15. Id., 176-186.
16. Id., 197-202.
17. Id., 213-217.
18. Id., 218-225.
19. Id., 259-264.
20. Rollo, p. 41.
21. It provides:chanrob1es virtual 1aw library
ARTICLE 18. (1) The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any baggage or any goods, if the recurrence which caused the damage so sustained took place during the transportation by air.
22. Law of the place of wrong.
23. 210 SCRA 256, 274 [1992].
24. Rollo, 24-25.
25. Supra, note 23.
26. Santos III v. Northwest Orient Airlines, supra, note 23 at pages 260-261.
27. OR, 34.
28. OR, 100.
29. Id., 73.
30. OR, 137.
