TOPICS WARSAW CONVENTION
DEFENSES 1. WILLFUL MISCONDUCT
AGAINST LIMIT
OF LIABILITY  Article 25
In the carriage of passengers and baggage,
the limits of liability specified in Art. 22
shall not apply if it is proved that the
damage resulted from an act or omission of
the carrier, his servants or agents, done
with intent to cause damage or
recklessly and with knowledge that
damage would probably result; provided
that, in the case of such act or omission of a
servant or agent, it is also proved that such
servant or agent was acting within the
scope of its employment.
Notes:
1. Willful misconduct is the intentional
performance of an act (or failure to act)
with knowledge that the act will
probably result in injury or damage, or
in some manner as to imply reckless
disregard of the consequences of its
performance, or a deliberate purpose
not to discharge some duty necessary
safety.
2. Three essential elements for a
successful claim
a. An intentional act or omission done
w/ conscious awareness that such
an act or omission was wrongful.
b. An awareness of the probable
consequences of an act or omission.
c. A causal relationship between the
act or omission and the injury
sustained
3. Proof of willful misconduct is necessary
2. GROSS NEGLIGENCE
 Amounts to bad faith or willful misconduct
Notes:
1. If there is such finding, it forecloses
whatever rights a carrier might have had
to the possible limitation of liabilities
enjoyed by international air carriers
MONTREAL CONVENTION
 Article 22 (5)
The provisions of Art. 22 relating to
(damage caused by delay in the carriage of
persons; and destruction, loss, damage or
delay in the carriage of baggage) shall not
apply if it is proved that the damage
resulted from an act or omission of the
carrier, its servants or agents, done with
intent to cause damage or recklessly
and with knowledge that damage would
probably result; provided that, in the case
of such act or omission of a servant or
agent, it is also proved that such servant
or agent was acting within the scope of its
employment.
Notes:
1. No need to prove liability, within the
threshold/cap in Art. 22, damages may
be awarded.
2. Limit may be reduced or exonerated in
case of contributory or sole negligence
of the passenger (Art. 20).
3. Passenger could recover unlimited
damages upon proof of willful
misconduct (Cathay Pacific Airways,
Ltd. VS. CA and Tomas Alcantara)
4. Proof of willful misconduct / gross
negligence necessary beyond the limit.
3. ABSENCE OF TICKET & BAGGAGE CHECK

 Article 3 (2) The passenger ticket shall
constitute prima facie evidence of the
conclusion and conditions of the contract of
carriage. The absence, irregularity, or loss of
the passenger ticket does not affect the
existence or validity of the contract of
carriage, which shall, nonetheless, be subject
to the rules of this Convention. Nevertheless,
if with the consent of the carrier, the
passenger embarks without a passenger
ticket having been delivered, or if the ticket
does not include the required “notice”, the
carrier shall not be entitled to avail himself
of the provisions of Article 22.
Notes:
1. The absence does not affect the
existence or the validity of the contract
of carriage
2. There is an opinion of the US SC to the
effect that “defective compliance with
the notice provision (as distinguished
from total absence of notice) does not
eliminate the liability limitation as
confirmed by comparing Article 3(2)
with other provisions of the Convention.
(Chan v. Korean Air Lines, Ltd.)
3. The second clause of Art. 3 (2) subjects a
carrier to unlimited liability if it “accepts
a passenger w/o a passenger ticket
having been delivered.”
4. Tickets & baggage checks entitles carrier
to avail of the limits in Art. 22
5. The amendments adapted in the
Guatemala City Protocol 1971 removed
the “unlimited liability clause” of the
carrier.
Documentation and Duties of the Parties
Relating to the Carriage of Passengers and
Baggage
 Article 3 (5). Non-compliance with the
provisions of the foregoing paragraphs
shall not affect the existence or the validity
of the contract of carriage, which shall,
nonetheless, be subject to the rules of this
Convention including those relating to
limitation of liability.
Documentation and Duties of the Parties
Relating to the Carriage of Cargo
 Article 9. Non-compliance with the
provisions of Articles 4 to 8 shall not affect
the existence or the validity of the contract
of carriage, which shall, nonetheless, be
subject to the rules of this Convention
including those relating to limitation of
liability.
 Notes:
1. Absence of Ticket and Baggage
Check not a defense against limit of
liability.

 Article 4 (2) The baggage check shall

constitute prima facie evidence of the
registration of the baggage and conditions of
the contract of carriage. The absence,
irregularity, or loss of the baggage check
does not affect the existence or validity of the
contract of carriage, which shall,
nonetheless, be subject to the rules of this
Convention. Nevertheless, if the carrier
takes charge of the baggage without the
baggage check having been delivered, or if
the baggage check does not include the
required “notice”, he shall not be entitled to
 avail himself of the provisions of Article 22,
paragraph 2.
Notes:
1. The carrier cannot capitalize on the
limited liability clause because of this
unequivocal condition.
4. WAIVER
 British Airways vs. CA, GR 121824, 29 Jan
1998
“Benefits of limited liability is subject to
waiver such as when the air carrier failed to
raise timely objections during the trial when
questions & answers regarding the actual
claims & damages sustained by the
passenger were asked.”
5. ESTOPPEL
 PAL vs. CA & Gilda Mejia, GR 119706, 14
Mar 1996
The Supreme Court ruled that a carrier may
be estopped from claiming the benefit of the
provision on the limit of liability.
TORT LIABILITY Article 23
1. Any provision tending to relieve the
carrier of liability or to fix a limit lower
than that which is laid down in this
Convention shall be null and void, but
the nullity of any such provision does
not involve the nullity of the whole
contract, which shall remain subject to 
the provisions of this convention
2. Par. 1 of this Article shall not apply to
provisions governing loss or damage
resulting from the inherent defect,
quality or vice of the cargo carried.
Article 24
 Article 25 — Stipulation on Limits
A carrier may stipulate that the contract of
carriage shall be subject to higher limits of
liability than those provided for in this
Convention or to no limits of liability
whatsoever.
 Article 27 — Freedom to Contract
Nothing contained in this Convention shall
prevent the carrier from refusing to enter
into any contract of carriage, from waiving
any defenses available under the
Convention, or from laying down
conditions which do not conflict with the
provisions of this Convention.
 Article 25 — Stipulation on Limits
A carrier may stipulate that the contract of
carriage shall be subject to higher limits of
liability than those provided for in this
Convention or to no limits of liability
whatsoever.
Article 26 — Invalidity of Contractual
Provisions
Any provision tending to relieve the carrier
of liability or to fix a lower limit than that
which is laid down in this Convention shall
be null and void, but the nullity of any such
provision does not involve the nullity of the
whole contract, which shall remain subject
to the provisions of this Convention.
 1. In the carriage of passengers and
baggage, any action for damages, 
however founded can only be brought
subject to te conditions and limits set out
in this convention, without prejudice to
the question as to who are the persons
who have the right to bring suit and
what are their respective rights.
2. In the carriage of cargo, any actin for
damages any action for damages,
however founded, whether under the 
Convention or in contract or in tortor
otherwise, can only be brought subject
to the conditions and limits of liability
set out in this Convention without
prejudice to the question as to who have
the right to bring suit and what are their
respective rights. Such limits of liability
constitute maximum limits and may not
be exceeded whatever the
circumstances which gave rise to the
liability.
PAL vs. Hon. Adriano Savillo & Simplicio Griño
(GR 149547, 04Jul2008, 557 SCRA 66)
Article 27 — Freedom to Contract
Nothing contained in this Convention shall
prevent the carrier from refusing to enter
into any contract of carriage, from waiving
any defences available under the
Convention, or from laying down
conditions which do not conflict with the
provisions of this Convention.
Article 29 — Basis of Claims
In the carriage of passengers, baggage and
cargo, any action for damages, however
founded, whether under this Convention or
in contract or in tort or otherwise, can only
be brought subject to the conditions and
such limits of liability as are set out in this
Convention without prejudice to the
question as to who are the persons who
have the right to bring suit and what are
their respective rights. In any such action,
punitive, exemplary or any other non-
compensatory damages shall not be
recoverable.

 Cardinal purpose of WC is to provide

uniformity of rules governing claims arising
from international air travel; thus, it
precludes a passenger from maintaining an
action for personal injury damages under
local law when his/her claim does not
satisfy the conditions of liability under the
Convention.

United Airlines vs. Uy (318 SCRA 576, 1999)

 High Court distinguished (1) damage to
passenger’s baggage & (2) humiliation
suffered at the hands of the airline’s
employees.
 The 1st cause of action was covered by WC
which prescribes in 2 years, while the 2nd
was covered by the provisions of the Civil
Code on torts which prescribes in 4 years.

 Notes:
1. WC 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.
VENUE OF  Article 28 (1)
ACTION An action for damages must be brought,
at the option of the plaintiff 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, or
4. The court of the place of the
destination.
 Note:
1. A number of reasons tends to
support the characterization of Art.
28 as jurisdiction, and not a venue
proposition.
2. Where the matter is governed by the
WC, jurisdiction takes on a dual
concept. Jurisdiction in the
international sense must be
established in accordance with Art.
28(1) of the WC, following which the
jurisdiction of a particular court
must be established pursuant to the
applicable domestic law.
NOTICE OF  Article 26
CLAIM 1. Receipt by the person entitled to delivery of
baggage or cargo without complaint is
prima facie evidence that the same has been
delivered in good condition and in
accordance with the document of carriage.
2. In the case of damage, the person entitled to
delivery must complain to the carrier
forthwith after the discovery of the damage,
and, at the latest, within 3 days from the
date of receipt in the case of baggage and 7
days from the date of receipt in the case
of goods. In case of delay the complaint
must be made at the latest within 14 days
from the date on which the baggage or
cargo have been placed at his disposal.
3. Every complaint must be made in
writing upon the document of carriage
or by separate notice in writing
dispatched within the times aforesaid.
4. Failing complaint within the times
aforesaid, no action shall lie against the
carrier, save in the case of fraud on his
part.
Jurisdiction
 Article 33 (1) and (2)
In the territory of a State Party
1) The court of the domicile of the carrier
2) The court of the carrier’s principal
place of business
3) The court where the carrier has a place
of business through which the contract
has been made
4) The court at the place of destination
The so-called 5th Jurisdiction
In the territory of a State Party where
the passenger has his/her principal &
permanent residence
 Art. 33 (4)
Questions of procedure shall be governed
by the law of the court seized of the case.
 Article 31 – Timely Notice of Complaints
1. Receipt by the person entitled to delivery
of checked baggage or cargo without
complaint is prima facie evidence that the
same has been delivered in good condition
and in accordance with the document of
carriage or with the record preserved by
the other means referred to in paragraph
2 of Article 3 and paragraph 2 of Article 4.
2. In the case of damage, the person
entitled to delivery must complain to the
carrier forthwith after the discovery of the
damage, and, at the latest, within seven
days from the date of receipt in the case of
checked baggage and fourteen days from
the date of receipt in the case of cargo. In
the case of delay, the complaint must be
made at the latest within twenty-one days
from the date on which the baggage or
cargo have been placed at his or her
disposal. 3. Every complaint must be made
in writing and given or dispatched within
the times aforesaid. 4. If no complaint is
made within the times aforesaid, no action
shall lie against the carrier, save in the case
of fraud on its part.
 Notes:

1. The filing of the claim with the carrier constitutes a condition precedent to the accrual of
a right of action for loss of or damage to the goods.
2. It does not constitute a limitation of action.

Reasons for such stipulation:

1. to inform the carrier that the cargo has been damaged and that it is being charged with
liability therefor
2. to give opportunity to examine the nature and extent of the injury

When not applicable:

a. The requirement that there is a notice of claim is not applicable – when there is fraud on
the part of the carrier
b. Failure on the part of the passenger to file a notice of claim within the subscribed period
is excused – if such delay can be attributed to the acts of omission of the carrier