EN BANC nor was his destination Manila but San Francisco in the United States.

[G.R. No. 101538. June 23, 1992.] On February 1, 1988, the lower court granted the motion and dismissed the case. 2 The
petitioner appealed to the Court of Appeals, which affirmed the decision of the lower
AUGUSTO BENEDICTO SANTOS III, represented by his father and legal guardian, court. 3 On June 26, 1991, the petitioner filed a motion for reconsideration, but the
Augusto Benedicto Santos, Petitioner, v. NORTHWEST ORIENT AIRLINES and same was denied. 4 The petitioner then came to this Court, raising substantially the
COURT OF APPEALS, Respondents. same issues it submitted in the Court of Appeals.

The assignment of errors may be grouped into two major issues, viz:chanrob1es virtual
DECISION 1aw library

(1) the constitutionality of Article 28(1) of the Warsaw Convention; and

This case involves the proper interpretation of Article 28(1) of the Warsaw Convention, The petitioner also invokes Article 24 of the Civil Code on the protection of minors.
reading as follows:chanrob1es virtual 1aw library
I.
Art. 28. (1) An action for damage 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 THE ISSUE OF CONSTITUTIONALITY
through which the contract has been made, or before the court at the place of
destination. A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the
Warsaw Convention violates the constitutional guarantees of due process and equal
The petitioner is a minor and a resident of the Philippines. Private respondent protection.
Northwest Orient Airlines (NOA) is a foreign corporation with principal office in
Minnesota, U.S.A., and licensed to do business and maintain a branch office in the The Republic of the Philippines is a party to the Convention for the Unification of
Philippines. Certain Rules Relating to International Transportation by Air, otherwise known as the
Warsaw Convention. It took effect on February 13, 1933. The Convention was
On October 21, 1986, the petitioner purchased from NOA a round-trip ticket in San concurred in by the Senate, through its Resolution No. 19, on May 16, 1950. The
Francisco, U.S.A., for his flight from San Francisco to Manila via Tokyo and back. The Philippine instrument of accession was signed by President Elpidio Quirino on October
scheduled departure date from Tokyo was December 20, 1986. No date was specified 13, 1950, and was deposited with the Polish government on November 9, 1950. The
for his return to San Francisco. 1 Convention became applicable to the Philippines on February 9, 1951. On September
23, 1955, President Ramon Magsaysay issued Proclamation No. 201, declaring our
On December 19, 1986, the petitioner checked in at the NOA counter in the San formal adherence thereto, "to the end that the same and every article and clause
Francisco airport for his scheduled departure to Manila. Despite a previous confirmation thereof may be observed and fulfilled in good faith by the Republic of the Philippines
and re-confirmation, he was informed that he had no reservation for his flight from and the citizens thereof." 5
Tokyo to Manila. He therefore had to be wait-listed.
The Convention is thus a treaty commitment voluntarily assumed by the Philippine
On March 12, 1987, the petitioner sued NOA for damages in the Regional Trial Court of government and, as such, has the force and effect of law in this country.
Makati. On April 13, 1987, NOA moved to dismiss the complaint on the ground of lack
of jurisdiction. Citing the above-quoted article, it contended that the complaint could be The petitioner contends that Article 28(1) cannot be applied in the present case
instituted only in the territory of one of the High Contracting Parties, before:chanrob1es because it is unconstitutional. He argues that there is no substantial distinction between
virtual 1aw library a person who purchases a ticket in Manila and a person who purchases his ticket in
San Francisco. The classification of the places in which actions for damages may be
1. the court of the domicile of the carrier; brought is arbitrary and irrational and thus violates the due process and equal
protection clauses.
2. the court of its principal place of business;
It is well-settled that courts will assume jurisdiction over a constitutional question only if
3. the court where it has a place of business through which the contract had been it is shown that the essential requisites of a judicial inquiry into such a question are first
made; satisfied. Thus, there must be an actual case or controversy involving a conflict of legal
rights susceptible of judicial determination; the constitutional question must have been
4. the court of the place of destination. opportunely raised by the proper party and the resolution of the question is unavoidably
necessary to the decision of the case itself. 6
The private respondent contended that the Philippines was not its domicile nor was this
its principal place of business. Neither was the petitioners ticket issued in this country Courts generally avoid having to decide constitutional question. This attitude is based
on the doctrine of separation of powers, which enjoins upon the departments of the But the more important consideration is that the treaty has not been rejected by the
government a becoming respect for each others acts. Philippine government. The doctrine of rebus sic stantibus does not operate
automatically to render the treaty inoperative. here is a necessity for a formal act of
The treaty which is the subject matter of this petition was a joint legislative-executive rejection, usually made by the head of State, with a statement of the reasons why
act. The presumption is that it was first carefully studied and determined to be compliance with the treaty is no longer required.
constitutional before it was adopted and given the force of law in this country.
In lieu thereof, the treaty may be denounced even without an expressed justification for
The petitioners allegations are not convincing enough to overcome this presumption. this action. Such denunciation is authorized under its Article 39, viz:chanrobles virtual
Apparently, the Convention considered the four places designated in Article 28 the most lawlibrary
convenient forums for the litigation of any claim that may arise between the airline and
its passenger, as distinguished from all other places. At any rate, we agree with the Article 39. (1) Any one of the High Contracting Parties may denounce this convention
respondent court that this case can be decided on other grounds without the necessity by a notification addressed to the Government of the Republic of Poland, which shall at
of resolving the constitutional issue. once inform the Government of each of the High Contracting Parties.

B. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the (2) Denunciation shall take effect six months after the notification of denunciation, and
Warsaw Convention is inapplicable because of a fundamental change in the shall operate only as regards the party which shall have proceeded to denunciation.
circumstances that served as its basis.
Obviously, rejection of the treaty, whether on the ground of rebus sic stantibus or
The petitioner goes at great lengths to show that the provisions in the Convention were pursuant to Article 39, is not a function of the courts but of the other branches of
intended to protect airline companies under "the conditions prevailing then and which government. This is a political act. The conclusion and renunciation of treaties is the
have long ceased to exist." He argues that in view of the significant developments in the prerogative of the political departments and may not be usurped by the judiciary. The
airline industry through the years, the treaty has become irrelevant. Hence, to the extent courts are concerned only with the interpretation and application of laws and treaties in
that it has lost its basis for approval, it has become unconstitutional. force and not with their wisdom or efficacy.

The petitioner is invoking the doctrine of rebus sic stantibus. According to Jessup, "this C. The petitioner claims that the lower court erred in ruling that the plaintiff must sue in
doctrine constitutes an attempt to formulate a legal principle which would justify non- the United States, because this would deny him the right to access to our courts.
performance of a treaty obligation if the conditions with relation to which the parties
contracted have changed so materially and so unexpectedly as to create a situation in The petitioner alleges that the expenses and difficulties he will incur in filing a suit in the
which the exaction of performance would be unreasonable." 7 The key element of this United States would constitute a constructive denial of his right to access to our courts
doctrine is the vital change in the condition of the contracting parties that they could not for the protection of his rights. He would consequently be deprived of this vital guaranty
have foreseen at the time the treaty was concluded. as embodied in the Bill of Rights.

The Court notes in this connection the following observation made in Day v. Trans Obviously, the constitutional guaranty of access to courts refers only to courts with
World Airlines, Inc.: 8 appropriate jurisdiction as defined by law. It does not mean that a person can go to any
court for redress of his grievances regardless of the nature or value of his claim. If the
The Warsaw drafters wished to create a system of liability rules that would cover all the petitioner is barred from filing his complaint before our courts, it is because they are not
hazards of air travel . . . The Warsaw delegates knew that, in the years to come, civil vested with the appropriate jurisdiction under the Warsaw Convention, which is part of
aviation would change in ways that they could not foresee. They wished to design a the law of our land.
system of air law that would be both durable and flexible enough to keep pace with
these changes . . . The ever-changing needs of the system of civil aviation can be II.
served within the framework they created.

It is true that at the time the Warsaw Convention was drafted, the airline industry was THE ISSUE OF JURISDICTION
still in its infancy. However, that circumstance alone is not sufficient justification for the
rejection of the treaty at this time. The changes recited by the petitioner were, A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the
realistically, not entirely unforeseen although they were expected in a general sense Warsaw Convention is a rule merely of venue and was waived by defendant when it did
only. In fact, the Convention itself, anticipating such developments, contains the not move to dismiss on the ground of improper venue.
following significant provision:chanrob1es virtual 1aw library
By its own terms. the Convention applies to all international transportation of persons
Article 41. Any High Contracting Party shall be entitled not earlier than two years after performed by aircraft for hire.
the coming into force of this convention to call for the assembling of a new international
conference in order to consider any improvements which may be made in this International transportation is defined in paragraph (2) of Article 1 as
convention. To this end, it will communicate with the Government of the French follows:chanrob1es virtual 1aw library
Republic which will take the necessary measures to make preparations for such
conference. (2) For the purposes of this convention, the expression "international transportation"
shall mean any transportation in which, 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 after the question of which court has jurisdiction is determined will the issue of venue be
the transportation or a transshipment, are situated [either] within the territories of two taken up. This second question shall be governed by the law of the court to which the
High Contracting Parties . . . case is submitted.

Whether the transportation is "international" is determined by the contract of the parties, The petitioner submits that since Article 32 state that the parties are precluded "before
which in the case of passengers is the ticket. When the contract of carriage provides for the damages occurred" from amending the rules of Article 28(1) as to the place where
the transportation of the passenger between certain designated terminals "within the the action may be brought, it would follow that the Warsaw Convention was not
territories of two High Contracting Parties," the provisions of the Convention intended to preclude them from doing so "after the damages occurred."cralaw virtua1aw
automatically apply and exclusively govern the rights and liabilities of the airline and its library
passenger.
Article 32 provides:chanrob1es virtual 1aw library
Since the flight involved in the case at bar is international, the same being from the
United States to the Philippines and back to the United States, it is subject to the Article 32. Any clause contained in the contract and all special agreements entered into
provisions of the Warsaw Convention, including Article 28(1), which enumerates the before the damage occurred by which the parties purport to infringe the rules laid down
four places where an action for damages may be brought. by this convention, whether by deciding the law to be applied, or by altering the rules as
to jurisdiction, shall be null and void. Nevertheless for the transportation of goods,
Whether Article 28(1) refers to jurisdiction or only to venue is a question over which arbitration clauses shall be allowed, subject to this convention, if the arbitration is to
authorities are sharply divided. While the petitioner cites several cases holding that take place within one of the jurisdictions referred to in the first paragraph of Article 28.
Article 28(1) refers to venue rather than jurisdiction, 9 there are later cases cited by the
private respondent supporting the conclusion that the provision is jurisdictional. 10 His point is that since the requirements of Article 28(1) can be waived "after the
damages (shall have) occurred," the article should be regarded as possessing the
Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by character of a "venue" and not of a "jurisdiction" provision. Hence, in moving to dismiss
consent or waiver upon a court which otherwise would have no jurisdiction over the on the ground of lack of jurisdiction, the private respondent has waived improper venue
subject-matter of an action; but the venue of an action as fixed by statute may be as a ground to dismiss.
changed by the consent of the parties and an objection that the plaintiff brought his suit
in the wrong county may be waived by the failure of the defendant to make a timely The foregoing examination of Article 28(1) in relation to Article 32 does not support this
objection. In either case, the court may render a valid judgment. Rules as to jurisdiction conclusion. In any event, we agree that even granting arguendo that Article 28(1) is a
can never be left to the consent or agreement of the parties, whether or not a venue and not a jurisdictional provision, dismissal of the case was still in order. The
prohibition exists against their alteration. 11 respondent court was correct in affirming the ruling of the trial court on this matter,
thus:chanrob1es virtual 1aw library
A number of reasons tends to support the characterization of Article 28(1) as a
jurisdiction and not a venue provision. First, the wording of Article 32, which indicates Santos claim that NOA waived venue as a ground of its motion to dismiss is not
the places where the action for damage "must" be brought, underscores the mandatory correct. True it is that NOA averred in its MOTION TO DISMISS that the ground thereof
nature of Article 28(1). Second, this characterization is consistent with one of the is "the Court has no subject matter jurisdiction to entertain the Complaint" which
objectives of the Convention, which is to "regulate in a uniform manner the conditions of SANTOS considers as equivalent to "lack of jurisdiction over the subject matter . . ."
international transportation by air." Third, the Convention does not contain any provision However, the gist of NOAs argument in its motion is that the Philippines is not the
prescribing rules of jurisdiction other than Article 28(1), which means that the phrase proper place where SANTOS could file the action meaning that the venue of the
"rules as to jurisdiction" used in Article 32 must refer only to Article 28(1). In fact, the action is improperly laid. Even assuming then that the specified ground of the motion is
last sentence of Article 32 specifically deals with the exclusive enumeration in Article erroneous, the fact is the proper ground of the motion improper venue has been
28(1) as "jurisdictions," which, as such, cannot be left to the will of the parties discussed therein.
regardless of the time when the damage occurred.
Waiver cannot be lightly inferred. In case of doubt, it must be resolved in favor of non-
This issue was analyzed in the leading case of Smith v. Canadian Pacific Airways, Ltd., waiver if there are special circumstances justifying this conclusion, as in the petition at
12 where it was held:chanrob1es virtual 1aw library bar. As we observed in Javier v. Intermediate Court of Appeals: 13

. . . Of more, but still incomplete, assistance is the wording of Article 28(2), especially Legally, of course, the lack of proper venue was deemed waived by the petitioners
when considered in the light of Article 32. Article 28(2) provides that "questions of when they failed to invoke it in their original motion to dismiss. Even so, the motivation
procedure shall be governed by the law of the court to which the case is submitted" of the private respondent should have been taken into account by both the trial judge
(Emphasis supplied). Section (2) thus may be read to leave for domestic decision and the respondent court in arriving at their decisions.
questions regarding the suitability and location of a particular Warsaw Convention
case."cralaw virtua1aw library The petitioner also invokes KLM Royal Dutch Airlines v. RTC, 14 a decision of our
Court of Appeals, where it was held that Article 28(1) is a venue provision. However,
In other words, where the matter is governed by the Warsaw Convention, jurisdiction the private respondent avers that this was in effect reversed by the case of Aranas v.
takes on a dual concept. Jurisdiction in the international sense must be established in United Airlines, 15 where the same court held that Article 28(1) is a jurisdictional
accordance with Article 28(1) of the Warsaw Convention, following which the jurisdiction provision. Neither of these cases is finding on this Court, of course, nor was either of
of a particular court must be established pursuant to the applicable domestic law. Only them appealed to us. Nevertheless, we here express our own preference for the later
case of Aranas insofar as its pronouncements on jurisdiction conform to the judgment
we now make in this petition. We agree with the latter case. The place of destination, within the meaning of the
Warsaw Convention, is determined by the terms of the contract of carriage or,
B. The petitioner claims that the lower court erred in not ruling that under Article 28(1) of specifically in this case, the ticket between the passenger and the carrier. Examination
the Warsaw Convention, this case was properly filed in the Philippines, because Manila of the petitioners ticket shows that his ultimate destination is San Francisco. Although
was the destination of the plaintiff. the date of the return flight was left open, the contract of carriage between the parties
indicates that NOA was bound to transport the petitioner to San Francisco from Manila.
The petitioner contends that the facts of this case are analogous to those in Aanestad v. Manila should therefore be considered merely an agreed stopping place and not the
Air Canada. 16 In that case, Mrs. Silverberg purchased a round-trip ticket from Montreal destination.
to Los Angeles and back to Montreal. The date and time of departure were specified but
not of the return flight. The plane crashed while en route from Montreal to Los Angeles, The petitioner submits that the Butz case could not have overruled the Aanestad case
killing Mrs. Silverberg. Her administratrix filed an action for damages against Air because these decisions are from different jurisdictions. But that is neither here nor
Canada in the U.S. District Court of California. The defendant moved to dismiss for lack there. In fact, neither of these cases is controlling on this Court. If we have preferred the
of jurisdiction but the motion was denied thus:chanrob1es virtual 1aw library Butz case, it is because, exercising our own freedom of choice, we have decided that it
represents the better, and correct, interpretation of Article 28(1).
. . . It is evident that the contract entered into between Air Canada and Mrs. Silverberg
as evidenced by the ticket booklets and the Flight Coupon No. 1, was a contract for Air Article 1(2) also draws a distinction between a "destination" and an "agreed stopping
Canada to carry Mrs. Silverberg to Log Angeles on a certain flight, a certain tine and a place." It is the "destination" and not an "agreed stopping place" that controls for
certain class, but that the time for her to return remained completely in her power. purposes of ascertaining jurisdiction under the Convention.
Coupon No. 2 was only a continuing offer by Air Canada to give her a ticket to return to
Montreal between certain dates . . . The contract is a single undivided operation, beginning with the place of departure and
ending with the ultimate destination. The use of the singular in this expression indicates
The only conclusion that. can be reached then, is that "the place of destination" as used the understanding of the parties to the Convention that every contract of carriage has
in the Warsaw Convention is considered by both the Canadian C.T.C. and the United one place of departure and one place of destination. An intermediate place where the
States C.A.B. to describe at least two "places of destination," viz., the "place of carriage may be broken is not regarded he a "place of destination."cralaw virtua1aw
destination" of a particular flight either an "outward destination" from the "point of origin" library
or from the "outward point of destination" to any place in Canada.
C. The petitioner claims that the lower court erred in not ruling that under Art. 28 (1) of
Thus the place of destination under Art. 28 and Art. 1 of the Warsaw Convention of the the Warsaw Convention, this case was properly filed in the Philippines because the
flight on which Mrs. Silverberg was killed, was Los Angeles according to the ticket, defendant has its domicile in the Philippines.
which was the contract between the parties and the suit is properly filed in this Court
which has jurisdiction. The petitioner argues that the Warsaw Convention was originally written in French and
that in interpreting its provisions, American courts have taken the broad view that the
The petitioner avers that the present case falls squarely under the above ruling because French legal meaning must govern. 18 In French, he says, the "domicile" of the carrier
the date and time of his return flight to San Francisco were, as in the Aanestad case, means every place where it has a branch office.
also left open: Consequently, Manila and not San Francisco should be considered the
petitioners destination. The private respondent notes, however, that in Compagnie Nationale Air France v.
Giliberto, 19 it was held:chanrob1es virtual 1aw library
The private respondent for its part invokes the ruling in Butz v. British Airways, 17
where the United States District Court (Eastern District of Pennsylvania) The plaintiffs first contention is that Air France is domiciled in the United States. They
said:chanrob1es virtual 1aw library say that the domicile of a corporation incudes any country where the airline carries on
its business on "a regular and substantial basis," and that the United States qualifies
. . . Although the authorities which addressed this precise issue are not extensive, both under such definition. the meaning of domicile cannot, however, be so extended. The
the cases and the commentators are almost unanimous in concluding that the "place of domicile of a corporation is customarily regarded as the place where it is incorporated,
destination" referred to in the Warsaw Convention "in a trip consisting of several parts . and the courts have given the meaning to the term as it is used in article 28(1) of the
. . is the ultimate destination that is accorded treaty jurisdiction.." . . Convention. (See Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971), 452 F2d 798,
802; Nudo v. Societe Anonyme Belge dExploitation de la Navigation Aerienne Sabena
But apart from that distinguishing feature, I cannot agree with the Courts analysis in Belgian World Airlines (E.D. pa. 1962), 207 F. Supp. 191; Karfunkel v. Compagnie
Aanestad; whether the return portion of the ticket is characterized as an option or a Nationale Air France (S.D.N.Y. 1977), 427 F. Suppl. 971, 974). Moreover, the structure
contract, the carrier was legally bound to transport the passenger back to the place of of article 28(1), viewed as a whole, is also incompatible with the plaintiffs claim. The
origin within the prescribed time and the passenger for her part agreed to pay the fare article, in stating that places of business are among the bases of the jurisdiction, sets
and, in fact, did pay the fare. Thus there was mutuality of obligation and a binding out two places where an action for damages may be brought: the country where the
contract of carriage. The fact that the passenger could forego her rights under the carriers principal place of business is located, and the country in which it has a place of
contract does not make it any less a binding contract. Certainly, if the parties did not business through which the particular contract in question was made, that is, where the
contemplate the return leg of the journey, the passenger would not have paid for it and ticket was bought. Adopting the plaintiffs theory would at a minimum blur these
the carrier would not have issued a round trip ticket. carefully drawn distinctions by creating a third intermediate category. It would obviously
introduce uncertainty into litigation under the article because of the necessity of having the Warsaw System. Presumably, the reason for the use of the phrase "however
to determine, and without standards or criteria, whether the amount of business done founded," is two-fold: to accommodate all of the multifarious bases on which a claim
by a carrier in a particular country was "regular" and "substantial." The plaintiffs request might be founded in different countries, whether under code law or common law,
to adopt this basis of jurisdiction is in effect a request to create a new jurisdictional whether under contract or tort, etc.; and to include all bases on which a claim seeking
standard for the Convention. relief for an injury might be founded in any one country. In other words, if the injury
occurs as described in Article 17, any relief available is subject to the conditions and
Furthermore, it was argued in another case 20 that:chanrob1es virtual 1aw library limitations established by the Warsaw System, regardless of the particular cause of
action which forms the basis on which a plaintiff could seek relief . . .
. . . In arriving at an interpretation of a treaty whose sole official language is French, are
we bound to apply French law? . . . We think this question and the underlying choice of x x x
law issue warrant some discussion . . . We do not think this statement can be regarded
as a conclusion that internal French law is to be "applied" in the choice of law sense, to
determine the meaning and scope of the Conventios terms. Of course, French legal The private respondent correctly contends that the allegation of willful misconduct
usage must be considered in arriving at an accurate English translation of the French. resulting in a tort is insufficient to exclude the case from the comprehension of the
But when an accurate English translation is made and agreed upon, as here, the inquiry Warsaw Convention. The petitioner has apparently misconstrued the import of Article
not meaning does not then revert to a quest for a past or present French law to be 25(1) of the Convention, which reads as follows:chanrob1es virtual 1aw library
"applied" for revelation of the proper scope of the terms. It does not follow from the fact
that the treaty is written in French that in interpreting it, we are forever chained to Article 25 (1). The carrier shall not be entitled to avail himself of the provisions of this
French law, either as it existed when the treaty was written or in its present state of Convention which exclude or limit his liability, if the damage is caused by his willful
development. There is no suggestion in the treaty that French law was intended to misconduct or by such default on his part as, in accordance which the law of the court
govern the meaning of Warsaws terms, nor have we found any indication to this effect to which the case is submitted, is considered to be equivalent to willful misconduct.
in its legislative history or from our study of its application and interpretation by other
courts. Indeed, analysis of the cases indicates that the courts, in interpreting and It is understood under this article that the court called upon to determine the
applying the Warsaw Convention, have not considered themselves bound to apply applicability of the limitation provision must first be vested with the appropriate
French law simply because the Convention is written in French. jurisdiction. Article 28(1) is the provision in the Convention which defines that
jurisdiction. Article 22 23 merely fixes the monetary ceiling for the liability of the carrier
We agree with these rulings. in cases covered by the Convention. If the carrier is indeed guilty of willful misconduct, it
can avail itself of the limitations set forth in this article. But this can be done only if the
Notably, the domicile of the carrier is only one of the places where the complaint is action has first been commenced properly under the rules on jurisdiction set forth in
allowed to be filed under Article 28(1). By specifying the three other places, to wit, the Article 28 (1).
principal place of business of the carrier, its place of business where the contract was
made, and the place of destination, the article clearly meant that these three other III.
places were not comprehended in the term "domicile."cralaw virtua1aw library

D. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the THE ISSUE OF PROTECTION TO MINORS
Warsaw Convention does not apply to actions based on tort.
The petitioner calls our attention to Article 24 of the Civil Code, which
The petitioner allege that the gravamen of the complaint is that private respondent states:chanrob1es virtual 1aw library
acted arbitrarily and in bad faith, discriminated against the petitioner, and committed a
willful misconduct because it canceled his confirmed reservation and gave his reserved Art. 24. In all contractual property or other relations, when one of the parties is at a
seat to someone who had no better right to it. In short, the private respondent disadvantage on account of his moral dependence, ignorance, indigence, mental
committed a tort. weakness, tender age or other handicap, the courts must be vigilant for his protection.
Such allegation, he submits, removes the present case from the coverage of the Application of this article to the present case is misplaced. The above provision
Warsaw Convention. He argues that in at least two American cases, 21 it was held that assumes that the court is vested with jurisdiction to rule in favor of the disadvantaged
Article 28(1) of the Warsaw Convention does not apply if the action is based on tort. minor. As already explained, such jurisdiction is absent in the case at bar.
This position is negated by Husserl v. Swiss Air Transport Company, 22 where the CONCLUSION
article in question was interpreted thus:chanrob1es virtual 1aw library
A number of countries have signified their concern over the problem of citizens being
. . . Assuming for the present that plaintiffs claim is "covered" by Article 17, Article 24 denied access to their own courts because of the restrictive provision of Article 28(1) of
clearly excludes any relief not provided for in the Convention as modified by the the Warsaw Convention. Among these is the United States, which has proposed an
Montreal Agreement. It does not, however, limit the kind of cause of action on which the amendment that would enable the passenger to sue in his own domicile if the carrier
relief may be founded; rather it provides that any action based on the injuries specified does business in that jurisdiction. The reason for this proposal is explained
in Article 17 "however founded," i.e., regardless of the type of action on which relief is thus:chanrob1es virtual 1aw library
founded, can only be brought subject to the conditions and limitations established by
In the event a US citizen temporarily residing abroad purchases a Rome to New York to
Rome ticket on a foreign air carrier which is generally subject to the jurisdiction of the
US, Article 28 would prevent that person from suing the carrier in the US in a "Warsaw
Case" even though such a suit could be brought in the absence of the Convention.

The proposal was incorporated in the Guatemala Protocol amending the Warsaw
Convention, which was adopted at Guatemala City on March 8, 1971. 24 But it is still
ineffective because it has not yet been ratified by the required minimum number of
contracting parties. Pending such ratification, the petitioner will still have to file his
complaint only in any of the four places designated by Article 28(1) of the Warsaw
Convention.

The proposed amendment bolsters the ruling of this Court that a citizen does not
necessarily have the right to sue in his own courts simply because the defendant airline
has a place of business in his country.chanrobles.com:cralaw:red

The Court can only sympathize with the petitioner, who must prosecute his claims in the
United States rather than in his own country at less inconvenience. But we are unable
to grant him the relief he seeks because we are limited by the provisions of the Warsaw
Convention which continues to bind us. It may not be amiss to observe at this point that
the mere fact that he will have to litigate in the American courts does not necessarily
mean he will litigate in vain. The judicial system of that country is known for its sense of
fairness and, generally, its strict adherence to the rule of law.

WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so