The Warsaw Convention 6ia4i

THE WARSAW CONVENTION The Warsaw Convention is formally called “The Convention for the Unification of Certain Rules Relating to International Transportation by Air.” The Warsaw Convention dated October 12, 1929 was ratified by the Philippines on November 9, 1950 and took effect on February 7, 1951. It was amended by the Hague protocol dated September 28, 1955 and the Philippines acceded to this Hague Protocol on November 30, 1966; the Hague Protocol took effect on February 7, 1951. The Warsaw Convention was later amended by the Guatamala and Montreal Protocols in 1971 and 1975, respectively, but the Philippines has not yet acceded to the said Protocals. BINDING EFFECT 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 of international transportation by air. Section 14.2 of CAB Economic Regulation No. 9 provides that for international flights, the relevant convention shall apply with respect to delayed, lost and damaged baggage, meaning, the Warsaw Convention. PURPOSES The Warsaw Convention was designed to protect and promote the international airline industry that was, at the time of the drafting of the treaty, still in its infancy. Supreme Court explained: “The Warsaw convention applies to all international transportation of persons, baggage or goods performed by any aircraft for hire. It seeks to accommodate or balance the interest of engers seeking recovery for personal injuries and the interest of air carriers seeking to limit potential liability. It employs a scheme of strict liability favouring engers and imposing damage caps to benefit air carriers. The cardinal purpose of the Warsaw Convention is to provide uniformity of rules governing claims arising from international air travel; thus, it precludes a enger from maintaining an action for personal injury damages under local law when his or her claim does not satisfy the conditions of liability under the Convention.” WARSAW CONVENTION The Convention Applies to international transportation by air. There is international transportation when: 1) The place of departure and the place of destination are within the territories of two contracting countries regardless of whether or not there was a break in the transportation or transhipment; 2) The place of departure and the place of destination are within 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 power is not a party to the Convention. (Maps vs CA) TRANSPORTATION BY AIR The period during which the baggage or goods are in charge of the carrier, whether in an airport or on board an aircraft or in the case of a landing outside an airport, in any place whatsoever (Sec.18(b), WC). 1) It does not cover any transportation by land, by sea, or by river performed outside an airport. 2) If the transportation takes place in the performance of a contract for transportation by air, for the purpose of loading, delivery, or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the transportation by air (Sec. 18(c), WC). WHEN INTERNATIONAL CARRIER IS LIABLE: enger- injury took place: 1) On board the aircraft 2) In the course of any of the operations embarking 3) In the course of embarking 4) When there was or because of delay. (Secs.17 and 19, WC) Checked baggage or goods – damage occurred during air transportation or when there is delay (Secs. 18 and 19, WC) LIMIT LIABILITY OF CARRIER  Carriage of engers- 250,000 francs Exceptions: 1) By special contract, the carrier and the enger may agree to a higher limit of liability (Alitalia vs IAC, G.R. No. 71929, Dec.4, 1990) 2) The limit for enger death or injury is $75,000.00 inclusive legal fees and costs where the US is the origin, destination or stopping place. (Sec. 1, CAB Econ. Reg. ER No. 9, 2012)  Carriage of ed baggage and cargo- 250 francs per kilogramme. Exceptions: The liability is NOT subject the above limits in the following cases: 1) If the enger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In the case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves the sum is greater than the actual value to the consignor at delivery;

2) 3) 4) 5) 6)

In case the damage or loss was due to wilful misconduct; In case the damage or loss was due to gross negligence; Absence of a baggage check; The carrier did not issue a ticket; In case of waiver by the carrier.

Note: in determining the amount of 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 airway bill are affected, the total weight of such other package or packages shall also be taken into consideration in determining the limit of liability. 

Objects of which the enger takes charges himself- 5,000 francs per engers Note: The Guatamala Protocol of 1971 increased the limit for engers to US $100,000 and $1,000 for baggage. However, the SC noted in Santos III vs Northwest Orient Airlines, et al. That the Guatamala Protocol is still ineffective.

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 quasi-delict can still be filed even if the filing is beyond the prescriptive provided for under the Convention so long as it is within the prescriptive period of four (4) years under the Civil Code. a)

The Warsaw Convention, however, denies to the carrier “availment of the provisions which exclude or limit his liability, if the damaged 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 any agent of the carrier acting within the scope of his employment” (WC, as amended by the Hague Protocol and Montreal Agreement)

JURISDICTION AND VENUE Under Article 28(1) of the Warsaw Convention the plaintiff may bring the actions for damages before: 1) The court where the carrier is domiciled; 2) The court where the carrier has its principal place of business; 3) The court where the carrier has an establishment by which the contract has been made; 4) The court of the place of destination  

Article 28(1) of the Warsaw Convention is jurisdictional in character. It is settled that allegations of tortuous conduct committed against an airline enger during the course of the international carriage do not bring the case outside the ambit of the Warsaw Convention. (Lhuillier vs British Airways, Inc. G.R. No. 171092, March 15,2010).

NOTICE OF CLAIM AND PRESCRIPTIVE PERIOD 1. Notice of Claim/Complaint. This is MANDATORY or a CONDITION PRECEDENT- the complaint or notice of claims must be filed with the international carrier: a. Baggage- within 3 days from receipt b. Baggage- in case of delay of delivery, within 14 days from the time the baggage was placed at the disposal of the enger c. Goods- 7 days from delivery. 2.

Prescription of Actions. The case must be filed in the court within: a. Two (2) years from receipt in case of an action for damages to enger baggage; b. If the action is for tort including humiliation at the hands of the airlines employees, the case may be filed within four (4) years. (United Airlines vs Uy, Nov. 19,1999)

OVERBOOKING AND DENIED BOARDING 1. Overbooking is not per se prohibited. However, the expense, consequence, inconvenience caused to the enger must be shouldered by the carrier (CAB ER. N0.9) 2. The enger must be given meals and accommodations and must be carried in the next available flights. (CAB ER. N0.9) 3. The carrier must first look for engers who are willing to give up their seats in favor of other engers (CAB ER. N0.7) 4. The enger may also refund the value of the ticket plus liquidated damages of P3,000.00 for domestic flights and P5,000.00 for international flights. (CAB ER. N0.7)