1

Your Name

Professor Name

Subject Name

04 September 20XX

Title of Your Report

I. Ratification

The Convention for the Unification of Certain Rules Relating to International

Transportation by Air or what is called the Warsaw Convention dated October 12, 1929. It was a

response to the growing need for uniform application of certain rules regarding international air

transportation. The Philippines acceded to the convention on November 9, 1950 and took its

effect February 7, 1951. The conventions underwent several amendments with the last being the

four Montreal Protocols in 1971 to 1975. The Convention for the Unification of Certain Rules

for International Carriage by Air or the Montreal Convention of 1999 or what is called MC99

was brought about by the need to modernize and consolidate the Warsaw Convention and other

instruments.1 The Philippines ratified the same through Senate Resolution 1336 on August 10,

2015. Both Conventions now have the force and effect of law in the Philippines.

1
Montreal Convention of 1999.
 2

II. 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 was

ratified by the Philippines on November 9, 1950 and it took effect on February 7, 1951. Hence,

this has the force and effect of law in the Philippines.2 It was amended by the Hague Protocol

dated September 28, 1955 and the Philippines acceded to the Hague Protocol on November 30,

1966. The Warsaw Convention was later amended by the Guatemala and Montreal Protocols in

1971 and 1975, respectively, but the Philippines has not yet acceded to the said Protocols.

The Warsaw Convention was designed to protect and promote the international airline

industry.3 The cardinal purpose of the Warsaw Convention is to provide uniformity of rules

governing claims arising from international air travel.4 It seeks to accommodate or balance the

interests of passengers seeking recovery for personal injuries and the interests of air carriers

seeking to limit potential liability. It employs a scheme of strict liability favoring passengers and

imposing damage caps to benefit air carriers.

The Warsaw Convention applies to all international transportation of persons, baggage,

or goods performed by aircraft for reward.5 It applies equally to gratuitous carriage by aircraft

performed by an air transport undertaking.6

Where the matter is governed by the Warsaw Convention, jurisdiction takes on a dual

concept. Jurisdiction in the international sense must be established in accordance with Article 28,

2
Cathay Pacific airways, Ltd. vs. CA, G.R. No. 60501, March 5, 1993.
3
J. Scott Hamilton, Practical Aviation Law, 4th Ed., p. 153, hereinafter cited as “Hamilton, p. 153.”
4
Philippine Airlines, Inc. vs. Hon. Savillo, G.R. No. 149547, July 4, 2008.
5
Convention for the Unification of certain Rules Relating to International Transportation by Air which was
adhered to by the Philippines on November 9, 1950 and such adherence was made public through Proclamation No.
201 which is published in 52 O.G. 4933-4934.
6
Warsaw Convention, Article 1 Paragraph 1.
 3

Paragraph 1 of the Warsaw Convention, following which the jurisdiction of a particular court

must be established pursuant to the applicable domestic law. Only after the question of which

court has jurisdiction is determined will the issue of venue be taken up which shall be governed

by the law of the court to which the case is submitted.7 Under Article 28, Paragraph 1 of the

Warsaw Convention, the plaintiff must bring an action 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; or (4)

The court of the place of destination.

For a cause of action under the Warsaw Convention to arise, an enumeration for the

liabilities under the Warsaw Convention is enumerated. The carrier is liable under the following

circumstances: (1) Damage sustained in the event of the death or wounding of a passenger taking

place on board the aircraft or in the course of any of the operations of embarking or

disembarking8; (2) Loss or damage or destruction to any check baggage or goods sustained

during the transport by air9; and (3) Delay in the transport by air of passengers, baggage or

goods.10 The list however, is not exclusive. The Convention does not thus operate as an exclusive

enumeration of the instances of an airline’s liability, or as an absolute limit of the extent of that

liability. The said provisions merely declare the carrier liable for damages in the enumerated

cases if the conditions therein specified are present. Neither said provisions nor others in the

aforementioned Convention regulate or exclude liability for other breaches of contract of carrier.

7
Lhuillier vs. Bristish Airways, Inc. G.R. No. 171092, March 15, 2010.
8
Warsaw Convention, Article 17.
9
Warsaw Convention, Article 18 Paragraph 1.
10
Warsaw Convention, Article 19.
 4

The action for damages, can only be brought subject to the conditions and limits set out

therein.11 The carrier shall be liable for 250,000 francs for each passenger except when there is a

special contract wherein the carrier and the passenger may agree to a higher limit of liability.12

The liability for checked baggage shall be two hundred and fifty (250) francs per kilogram

except when the passenger or consignor has made, at the time when the package was handed

over to the carrier, a special declaration of interest in delivery at destination and has paid a

supplementary sum if the case so requires.13 An agreement relieving the carrier from liability or

fixing a lower limit is null and void but the nullity of such provision does not involve the nullity

of the whole contract.14 The limit of liability is not applicable in case of: (1) Willful misconduct;

(2) Gross negligence; (3) Absence of baggage check; (4) If there was a waiver on the part of the

carrier; and (5) If the carrier is estopped from invoking the provision on limit of liability.

III. Montreal Convention

Years after the Warsaw convention took effect several amendments and protocols were

added. However, not all the original ratifying states acceded to the subsequent amendments and

the Montreal Protocols expanding the liabilities. Confusion therefore arose between the states

thus defeating the purpose of the Warsaw Convention which is to create a uniform system. The

Montreal Convention was brought about by the need to modernize, consolidate and harmonize

the Warsaw Convention as well as all other related instruments of private international air law.15

It encompasses international carriage of persons, baggage or cargo by aircraft whether

gratuitously or not. The convention defines International carriage as any carriage in which,

11
Warsaw Convention, Article 24.
12
Warsaw Convention, Article 22.
13
​Ibid.
14
Warsaw Convention, Article 23.
15
Convention for the Unification of Certain Rules for International Carriage by Air, MC99.
 5

according to the agreement between the parties, the place of departure and the place of

destination, whether or not there be a break in the carriage or a transhipment, are situated either

within the territories of two States Parties, or within the territory of a single State Party if there is

an agreed stopping place within the territory of another State, even if that State is not a State

Party. However, carriage between two points within the territory of a single state party without

an agreed stopping place within the territory of another state is outside the scope of the

convention.16

IV. Table

V.

In the Philippines, it is the Civil Aeronautics Board who holds quasi-judicial power17 to

enforce its mandate which is regulating the Civil Aeronautics in the Philippines. The Department

of Trade and Industry as well as the Department of Transportation and Communication through

the Civil Aeronautics Board created a Passenger Bill of Rights.18 In this Bill of Rights what is

covered only are the Philippine-based carriers.19 This is its limitation. The Civil Aeronautics

Board, through its mandate by the law, may hear the complaint of the passenger and rule thusly

to protect air passenger interests. This is still just an exercise of its quasi-judicial function.

Furthermore, the CAB is empowered to help or assist in the filing and prosecution of the

complaints of passengers whose rights have been violated and who wish to go after the

16
MC99, Article 1 Par. 2.
17
Article 49 par. 2, “An Act to Reorganize the Civil Aeronautics Board and the Civil Aeronautics
Administration, To Provide for the Regulation of Civil Aeronautics in the Philippines and Authorizing The
Appropriation of Funds Therefor”, R.A. No. 776.
18
DOTC-DTI Joint Administrative Order No. 1, s.2012.
19
​id,​ at Sec. 2.1.
 6

concerned air carriers.20 In the Philippine regime therefore, a wronged air passenger will be able

to have administrative relief through CAB without prejudice to the liabilities for breach of

contract and the consequent damages surrounding the incident if the passenger chooses to pursue

such a path. Moreover, certain legal principles in the Philippine regime would prevent recovering

from a Philippine-based airline grounded on violations of the Passenger Bill of Rights under

CAB and either The Warsaw Convention or the Montreal Convention at the same time since

both obligations is sourced in law. Double Recovery is not allowed.

If the passenger seeks to enforce his or her rights against an international carrier there are

two alternatives. Either under the Warsaw Convention or the Montreal Convention of 1999. As

earlier discussed, the problem with the Warsaw Convention was that the succeeding amendments

and protocols were not acceded to by the original state parties. The purpose of uniformity is lost.

Herein lies the problem with reliance to the Warsaw Convention. This is remedied by the

Montreal Convention which replaced the Warsaw Convention by including in one instrument all

other instruments pertaining to private air carriage and creating a uniform regime. Therefore, it is

the position of the writers that recourse through Warsaw convention is still possible but it has an

outdated compensation scheme and an original state party might not have signed the succeeding

amendments. Whereas, following the Montreal Convention Regime, states which are assignatory

thereto, will follow the uniform rules provided thereby.

20
​id, a​ t Sec. 17.