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G.R. No. L-34597 November 5, 1982 for few meters, naturally, the jeep was already inclined and
ROSITO Z. BACARRO, WILLIAM SEVILLA, and FELARIO two passengers beside me were the ones who pushed me. I
MONTEFALCON, petitioners, was pushed by the two passengers beside me; that is why,
vs. when I was clinging, my leg and half of my body were outside
GERUNDIO B. CASTAO, and the COURT OF APPEALS, respondents. the jeep when it reached the canal. ... My right leg was
sandwiched by the body of the jeep and the right side of the
Felipe G. Tac-an counsel for petitioner. ditch. ... My right leg was broken.' He was rushed to the
Saint Mary's Hospital where he stayed for about two (2)
Gerundio B. Castao counsel for private respondent. months. 'My right leg is now shorter by one and one-half
inches causing me to use specially made shoes. ... I could not
squat for a long time; I could not kneel for a long time; and I
could not even sit for a long time because I will suffer cramp.
... With my three fingers I am still uneasy with my three
RELOVA, J.:
fingers in my right hand. There is a feeling of numbness with
my three fingers even right now.
Appeal taken by petitioners from a decision of the Court of Appeals, affirming
that of the Court of First Instance of Misamis Occidental, the dispositive
xxx xxx xxx
portion of which reads:

From appellee's version just set out, it appears that after he


WHEREFORE, judgment is hereby rendered, ordering the
boarded the jeep in question at Oroquieta, it was driven by
defendants to jointly and severally pay to the plaintiff the
defendant Montefalcon at around forty (40) kilometers per
sum of (1) P973.10 for medical treatment and
hour bound for Jimenez; that while approaching Sumasap
hospitalization; (2) P840.20 for loss of salary during
Bridge at the said speed, a cargo truck coming from behind
treatment; and (3) P2,000.00 for partial permanent
blew its horn to signal its intention to overtake the jeep; that
deformity, with costs against the defendants.
the latter, without changing its speed, gave way by swerving
to the right, such that both vehicles ran side by side for a
The facts are set forth in the decision of the Court of Appeals, from which We
distance of around twenty (20) meters, and that thereafter as
quote:
the jeep was left behind, its driver was unable to return it to
its former lane and instead it obliquely or diagonally ran down
... In the afternoon of April 1, 1960, he (appellee) boarded an inclined terrain towards the right until it fell into a ditch
the said jeep as a paying passenger at Oroquieta bound for pinning down and crushing appellee's right leg in the process.
Jimenez, Misamis Occidental. It was then fined to capacity,
with twelve (12) passengers in all. 'The jeep was running
Throwing the blame for this accident on the driver of the
quite fast and the jeep while approaching the (Sumasap)
cargo truck, appellants, in turn, state the facts to be as
bridge there was a cargo truck which blew its horn for a right
follows:
of way. The jeep gave way but did not change speed. ...
When the jeep gave way it turned to the right and continued
In the afternoon of April 1, 1960, plaintiff Gerundio Castao
running with the same speed. In so doing ...the driver was
boarded the said jeepney at Oroquieta bound for Jimenez,
not able to return the jeep to the proper place ... instead, it
Misamis occidental. While said jeepney was negotiating the
ran obliquely towards the canal; that is why, we fell to the
upgrade approach of the Sumasap Bridge at Jimenez,
ditch. ... When the jeep was running in the side of the road
Misamis Occidental and at a distance of about 44 meters
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therefrom, a cargo truck, owned and operated by a certain Te to the driver of the truck. Hereunder is the testimony of private respondent
Tiong alias Chinggim, then driven by Nicostrato Digal, a Gerundio B. Castao on this point:
person not duly licensed to drive motor vehicles, overtook the
jeepney so closely that in the process of overtaking Q At that time when you rode that jeep on
sideswiped the jeepney, hitting the reserve tire placed at the your way to Jimenez, you said that the jeep
left side of the jeepney with the hinge or bolt of the siding of was running quite fast for a jeep, is that
the cargo truck, causing the jeepney to swerve from its correct?
course and after running 14 meters from the road it finally
fell into the canal. The right side of the jeep fell on the right A Yes, sir.
leg of the plaintiff-appellee, crushing said leg against the
ditch resulting in the injury to plaintiff-appellee consisting of xxx xxx xxx
a broken right thigh.

Q When you said that it is quite fast for a


and take the following stand: 'The main defense of jeep, do you mean to tell this Court that the
defendants appellants is anchored on the fact that the speed of that jeep could not be made by that
jeepney was sideswiped by the overtaking cargo truck' particular jeepney?
(Appellants' Brief, pp. 3-4, 7).

A It can be made but it will not be very safe


It must be admitted, out of candor, that there is evidence of for that kind of transportation to run that kind
the sideswiping relied upon by appellants. .... of speed.

This appeal by certiorari to review the decision of respondent Court of Q What was the speed of that jeep in terms
Appeals asserts that the latter decided questions of substance which are of miles or kilometers per hour?
contrary to law and the approved decisions of this Court. Petitioners alleged
that respondent Court of Appeals erred (1) in finding contributory negligence
A About 40 kilometers or about that time
on the part of jeepney driver appellant Montefalcon for having raced with the
during that trip per hour.
overtaking cargo truck to the bridge instead of slackening its speed, when
the person solely responsible for the sideswiping is the unlicensed driver of
Q And you said also that there was a cargo
the overtaking cargo truck; (2) in finding the jeepney driver not to have
truck that was behind the jeep, is that
exercised extraordinary diligence, human care, foresight and utmost.
correct, while you were already approaching
diligence of very cautious persons, when the diligence required pursuant to
the Sumasap bridge?
Article 1763 of the New Civil Code is only that of a good father of a family
since the injuries were caused by the negligence of a stranger; and (3) in not
considering that appellants were freed from any liability since the accident A Yes.
was due to fortuitous event - the sideswiping of the jeepney by the
overtaking cargo truck. xxx xxx xxx

We are not persuaded. The fact is, petitioner-driver Montefalcon did not Q How about the speed of that truck as the
slacken his speed but instead continued to run the jeep at about forty (40) jeep you were riding was approaching the
kilometers per hour even at the time the overtaking cargo truck was running Sumasap bridge? What was the speed of that
side by side for about twenty (20) meters and at which time he even shouted truck, fast or not fast?
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A Naturally, the truck when it asks for a xxx xxx xxx


clearance that he will overtake it will run fast.
Q .... You said before that the jeep and the
xxx xxx xxx truck were running side by side for a few
meters, is that correct?
Q Now comparing the speed that you
mentioned that the jeep was negotiating in A Yes, sir.
that place and the cargo truck, which ran
faster-the jeep or the cargo truck? Q I am asking you now, how long were they
running side by side-the jeep and the cargo
xxx xxx xxx truck?

A Naturally, the truck was a little bit faster A About 20 meters, they were running side by
because he was able to overtake. side.

xxx xxx xxx Q And after running side by side for 20


meters, the jeep and its passengers went to
Q Now, how far more or less was the jeep the canal?
from the bridge when the truck was about to
or in the process of overtaking the jeep you A Yes.
were riding?
Q You said on direct examinaton that when
A When the truck was asking for a clearance the jeep (should be truck) was blowing its
it was yet about less than 100 meters from horn and asking for a way, you said that the
the bridge when he was asking for a jeep gave way and turned to the right and did
clearance to overtake. not recover its position and the jeep fell into
the ditch, is that what you said before?
xxx xxx xxx
A The jeep did not recover. It was not able to
Q Do you remember the distance when the return to the center of the road. It was
truck and the jeep were already side by side running outside until it reached the canal,
as they approach the bridge in relation to the running diagonally.
bridge?
Q When the jeep gave way to the cargo truck,
xxx xxx xxx the jeep was at the right side of the road?

A They were about fifty meters ... from fifty A Already on the right side of the road.
to thirty meters when they were side by side
from the bridge. Q And this jeep was running steadily at the
right side of the road.
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A Yes, sir. side of the road up to the place where the


jeep was finally lodged that place is inclining
xxx xxx xxx towards the right?

Q When the jeep gave way to the cargo truck A When the jeep left the road it was already
and it kept its path to the right, it was still inclining because it was running part side of
able to maintain that path to the right for the road which is inclining. (Transcript of
about twenty meters and while the jeep and March 25 and 26, 1963).
the cargo truck were running side by side?
Thus, had Montefalcon slackened the speed of the jeep at the time the truck
A Yes. was overtaking it, instead of running side by side with the cargo truck, there
would have been no contact and accident. He should have foreseen that at
Q When the truck and the jeep were already the speed he was running, the vehicles were getting nearer the bridge and as
running side by side and after having run the road was getting narrower the truck would be to close to the jeep and
twenty meters side by side, do you know why would eventually sideswiped it. Otherwise stated, he should have slackened
the jeep careened to the ditch or to the his jeep when he swerved it to the right to give way to the truck because the
canal? two vehicles could not cross the bridge at the same time.

A I do not know why but I know it slowly got The second assigned error is centered on the alleged failure on the part of
to the canal but I do not know why it goes the jeepney driver to exercise extraordinary diligence, human care, foresight
there. and utmost diligence of a very cautious person, when the diligence required
pursuant to Article 1763 of the Civil Code is only that of a good father of a
xxx xxx xxx family. Petitioners contend that the proximate cause of the accident was the
negligence of the driver of the truck. However, the fact is, there was a
contract of carriage between the private respondent and the herein
Q You said when the jeep was about to be
petitioners in which case the Court of Appeals correctly applied Articles 1733,
lodged in the canal, you stated that the jeep
1755 and 1766 of the Civil Code which require the exercise of extraordinary
was running upright, is that a fact?
diligence on the part of petitioner Montefalcon.

A Yes.
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to
Q So that the terrain was more or less level
observe extraordinary diligence in the vigilance over the
because the jeep was already running
goods and for the safety of the passengers transported by
upright, is that not correct?
them, according to all the circumstances of each case.

A The jeep was running on its wheels but it is


Art. 1755. A common carrier is bound to carry the Passengers
running on the side, the side was inclining
safely as far as human care and foresight can provide, using
until it reached the ditch.
the utmost diligence of very cautious persons, with a due
regard for all the circumstances.
Q You mean to tell the Court that from the
entire of the fifteen meters distance from the
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Art. 1766. In all matters not regulated by this Code, the DAVIDE, JR., J.:p
rights and obligations of common carriers shall be governed
by the Code of Commerce and by special laws. As formulated by the petitioner, the issue in this petition for review
on certiorari under Rule 45 of the Rules of Court is as follows:
Indeed, the hazards of modern transportation demand extraordinary
diligence. A common carrier is vested with public interest. Under the new In case of interruption of a vessel's voyage and the
Civil Code, instead of being required to exercise mere ordinary diligence a consequent delay in that vessel's arrival at its port of
common carrier is exhorted to carry the passengers safely as far as human destination, is the right of a passenger affected thereby to be
care and foresight can provide "using the utmost diligence of very cautious determined and governed by the vague Civil Code provision
persons." (Article 1755). Once a passenger in the course of travel is injured, on common carriers, or shall it be, in the absence of a
or does not reach his destination safely, the carrier and driver are presumed specific provision thereon governed by Art. 698 of the Code
to be at fault. of Commerce? 1

The third assigned error of the petitioners would find fault upon respondent The petitioner considers it a "novel question of law."
court in not freeing petitioners from any liability, since the accident was due
to a fortuitous event. But, We repeat that the alleged fortuitous event in this Upon a closer evaluation, however, of the challenged decision of the Court of
case - the sideswiping of the jeepney by the cargo truck, was something Appeals of 23 November 1994, 2vis-a-vis, the decision of 29 June 1992 in
which could have been avoided considering the narrowness of the Sumasap Civil Case No. 91-491 of the Regional Trial Court (RTC) of Cagayan de Oro
Bridge which was not wide enough to admit two vehicles. As found by the City, Branch 24, 3 as well as the allegations and arguments adduced by the
Court of Appeals, Montefalcon contributed to the occurrence of the mishap. parties, we find the petitioner's formulation of the issue imprecise. As this
Court sees it, what stands for resolution is a common carrier's liability for
WHEREFORE, the decision of the respondent Court of Appeals, dated damages to a passenger who disembarked from the vessel upon its return to
September 30,1971, is hereby AFFIRMED. With costs. the port of origin, after it suffered engine trouble and had to stop at sea,
having commenced the contracted voyage on one engine.
SO ORDERED.
The antecedents are summarized by the Court of Appeals as follows:

Plaintiff [herein private respondent Atty. Renato Arroyo], a


public attorney, bought a ticket [from] defendant [herein
petitioner], a corporation engaged in . . . inter-island
G.R. No. 118126 March 4, 1996 shipping, for the voyage of M/V Asia Thailand vessel to
Cagayan de Oro City from Cebu City on November 12, 1991.
TRANS-ASIA SHIPPING LINES, INC., petitioner,
At around 5:30 in the evening of November 12, 1991,
vs. plaintiff boarded the M/V Asia Thailand vessel. At that
instance, plaintiff noticed that some repair works [sic] were
COURT OF APPEALS and ATTY. RENATO T. ARROYO, respondents. being undertaken on the engine of the vessel. The vessel
departed at around 11:00 in the evening with only one (1)
engine running.
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After an hour of slow voyage, the vessel stopped near Kawit After due trial, the trial court rendered its decision 7 and ruled that the action
Island and dropped its anchor thereat. After half an hour of was only for breach of contract, with Articles 1170, 1172, and 1173 of the
stillness, some passengers demanded that they should be Civil Code as applicable law not Article 2180 of the same Code. It was of
allowed to return to Cebu City for they were no longer willing the opinion that Article 1170 made a person liable for damages if, in the
to continue their voyage to, Cagayan de Oro City. The captain performance of his obligation, he was guilty of fraud, negligence, or delay, or
acceeded [sic] to their request and thus the vessel headed in any manner contravened the tenor thereof; moreover, pursuant to Article
back to Cebu City. 2201 of the same Code, to be entitled to damages, the non-performance of
the obligation must have been tainted not only by fraud, negligence, or delay,
At Cebu City, plaintiff together with the other passengers who but also bad faith, malice, and wanton attitude. It then disposed of the case
requested to be brought back to Cebu City, were allowed to as follows:
disembark. Thereafter, the vessel proceeded to Cagayan de
Oro City. Plaintiff, the next day, boarded the M/V Asia Japan WHEREFORE, it not appearing from the evidence that plaintiff
for its voyage to Cagayan de Oro City, likewise a vessel of was left in the Port of Cebu because of the fault, negligence,
defendant. malice or wanton attitude of defendant's employees, the
complaint is DISMISSED. Defendant's counterclaim is likewise
On account of this failure of defendant to transport him to the dismissed it not appearing also that filing of the case by
place of destination on November 12, 1991, plaintiff filed plaintiff was motivated by malice or bad faith. 8
before the trial court a complaint for damages against
defendant. 4 The trial court made the following findings to support its disposition:

In his complaint, docketed as Civil Case No. 91-491, plaintiff (hereinafter In the light of the evidence adduced by the parties and of the
private respondent) alleged that the engines of the M/V Asia Thailand conked above provisions of the New Civil Code, the issue to be
out in the open sea, and for more than an hour it was stalled and at the resolved, in the resolution of this case is whether or not,
mercy of the waves, thus causing fear in the passengers. It sailed back to defendant thru its employees in [sic] the night of November
Cebu City after it regained power, but for unexplained reasons, the 12, 1991, committed fraud, negligence, bad faith or malice
passengers, including the private respondent, were arrogantly told to when it left plaintiff in the Port of Cebu when it sailed back to
disembark without the necessary precautions against possible injury to them. Cagayan de Oro City after it has [sic] returned from Kawit
They were thus unceremoniously dumped, which only exacerbated the Island.
private respondent's mental distress. He further alleged that by reason of the
petitioner's wanton, reckless, and willful acts, he was unnecessarily exposed Evaluation of the evidence of the parties tended to show
to danger and, having been stranded in Cebu City for a day, incurred nothing that defendant committed fraud. As early as 3:00
additional expenses and loss of income. He then prayed that he be awarded p.m. of November 12, 1991, defendant did not hide the fact
P1,100.00, P50,000.00, and P25,000.00 as compensatory, moral; and that the cylinder head cracked. Plaintiff even saw during its
exemplary damages, respectively. 5 repair. If he had doubts as to the vessel's capacity to sail, he
had time yet to take another boat. The ticket could be
In his pre-trial brief, the private respondent asserted that his complaint was returned to defendant and corresponding cash [would] be
"an action for damages arising from bad faith, breach of contract and from returned to him.
tort," with the former arising from the petitioner's "failure to carry [him] to
his place of destination as contracted," while the latter from the "conduct of Neither could negligence, bad faith or malice on the part of
the [petitioner] resulting [in] the infliction of emotional distress" to the defendant be inferred from the evidence of the parties. When
private respondent. 6 the boat arrived at [the] Port of Cebu after it returned from
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Kawit Island, there was an announcement that passengers defendant-appellee was guilty of fraud, delay, negligence, and bad faith; and
who would like to disembark were given ten (10) minutes (2) the trial court. erred in not awarding moral and exemplary damages. 10
only to do so. By this announcement, it could be inferred that
the boat will [sic] proceed to Cagayan de Oro City. If plaintiff In its decision of 23 November 1994, 11 the Court of Appeals reversed the
entertained doubts, he should have asked a member of the trial court's decision by applying Article 1755 in relation to Articles 2201,
crew of the boat or better still, the captain of the boat. But as 2208, 2217, and 2232 of the Civil Code and, accordingly, awarded
admitted by him, he was of the impression only that the boat compensatory, moral, and exemplary damages as follows:
will not proceed to Cagayan de Oro that evening so he
disembarked. He was instead, the ones [sic] negligent. Had WHEREFORE, premises considered, the appealed decision is
he been prudent, with the announcement that those who will hereby REVERSED and SET ASIDE and another one is
disembark were given ten minutes only, he should have rendered ordering defendant-appellee to pay plaintiff-
lingered a little by staying in his cot and inquired whether the appellant:
boat will proceed to Cagayan de Oro City or not. Defendant
cannot be expected to be telling [sic] the reasons to each 1. P20,000.00 as moral damages;
passenger. Announcement by microphone was enough.

2. P10,000.00 as exemplary damages;


The court is inclined to believe that the story of defendant
that the boat returned to the Port of Cebu because of the
3. P5,000.00 as attorney's fees;
request of the passengers in view of the waves. That it did
not return because of the defective engines as shown by the
4. Cost of suit.
fact that fifteen (15) minutes after the boat docked [at] the
Port of Cebu and those who wanted to proceed to Cagayan de
Oro disembarked, it left for Cagayan de Oro City. SO ORDERED. 12

The defendant got nothing when the boat returned to Cebu to It did not, however, allow the grant of damages for the delay in the
let those who did not want to proceed to Cagayan de Oro City performance of the petitioner's obligation as the requirement of demand set
including plaintiff disembarked. On the contrary, this would forth in Article 1169 of the Civil Code had not been met by the private
mean its loss instead because it will have to refund their respondent. Besides, it found that the private respondent offered no evidence
tickets or they will use it the next trip without paying to prove that his contract of carriage with the petitioner provided for liability
anymore. It is hard therefore, to imagine how defendant by in case of delay in departure, nor that a designation of the time of departure
leaving plaintiff in Cebu could have acted in bad faith, was the controlling motive for the establishment of the contract. On the
negligently, wantonly and with malice. latter, the court a quo observed that the private respondent even admitted he
was unaware of the vessel's departure time, and it was only when he
boarded the vessel that he became aware of such. Finally, the respondent
If plaintiff, therefore, was not able to [m]ake the trip that
Court found no reasonable basis for the private respondent's belief that
night of November 12, 1991, it was not because defendant
demand was useless because the petitioner had rendered it beyond its power
maliciously did it to exclude him [from] the trip. If he was
to perform its obligation; on the contrary, he even admitted that the
left, it was because of his fault or negligence. 9
petitioner had been assuring the passengers that the vessel would leave on
time, and that it could still perform its obligation to transport them as
Unsatisfied, the private respondent appealed to the Court of Appeals (CA-
scheduled.
G.R. CV No. 39901) and submitted for its determination the following
assignment of errors: (1) the trial court erred in not finding that the
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To justify its award of damages, the Court of Appeals ratiocinated as follows: obligation. The law mandates that common carrier[s] should
exercise utmost diligence the transport of passengers.
It is an established and admitted fact that the vessel before
the voyage had undergone some repair work on the cylinder Article 1755 of the New Civil Code provides:
head of the engine. It is likewise admitted by defendant-
appellee that it left the port of Cebu City with only one engine Art. 1755. A common carrier is bound to
running. Defendant-appellee averred: carry the passengers safely as far as human
care and foresight can provide, using the
. . . The dropping of the vessel's anchor after utmost diligence of very cautious persons,
running slowly on only one engine when it with a due regard for all the circumstances.
departed earlier must have alarmed some
nervous passengers . . . Utmost diligence of a VERY CAUTIOUS person dictates that
defendant-appellee should have pursued the voyage only
The entries in the logbook which defendant-appellee itself when its vessel was already fit to sail. Defendant-appellee
offered as evidence categorically stated therein that the should have made certain that the vessel [could] complete
vessel stopped at Kawit Island because of engine trouble. It the voyage before starting [to] sail. Anything less than this,
reads: the vessel [could not] sail . . . with so many passengers on
board it.
2330 HRS STBD ENGINE' EMERGENCY STOP
However, defendant-appellant [sic] in complete disregard of
2350 HRS DROP ANCHOR DUE TO ENGINE TROUBLE, 2 the safety of the passengers, chose to proceed with its
ENGINE STOP. voyage even if only one engine was running as the second
engine was still being repaired during the voyage. Defendant-
The stoppage was not to start and synchronized [sic] the appellee disregarded the not very remote possibility that
engines of the vessel as claimed by defendant-appellee. It because of the disability of the vessel, other problems might
was because one of the engines of the vessel broke down; it occur which would endanger the lives of the passengers
was because of the disability of the vessel which from the sailing with a disabled vessel.
very beginning of the voyage was known to defendant-
appellee. As expected, . . . engine trouble occurred. Fortunate[ly] for
defendant-appellee, such trouble only necessitated the
Defendant-appellee from the very start of the voyage knew stoppage of the vessel and did not cause the vessel to
for a fact that the vessel was not yet in its sailing condition capsize. No wonder why some passengers requested to be
because the second engine was still being repaired. Inspite of brought back to Cebu City. Common carriers which are
this knowledge, defendant-appellee still proceeded to sail mandated to exercise utmost diligence should not be taking
with only one engine running. these risks.

Defendant-appellee at that instant failed to exercise the On this premise, plaintiff-appellant should not be faulted why
diligence which all common carriers should exercise in he chose to disembark from the vessel with the other
transporting or carrying passengers. The law does not merely passengers when it returned back to Cebu City. Defendant-
require extraordinary diligence in the performance of the appellee may call him a very "panicky passenger" or a
"nervous person", but this will not relieve defendant-appellee
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from the liability it incurred for its failure to exercise utmost To serve as a deterrent to the commission of similar acts in
diligence. 13 the future, exemplary damages should be imposed upon
defendant-appellee. 17 Exemplary damages are designed by
xxx xxx xxx our civil law to permit the courts to reshape behavior that is
socially deleterious in its consequence by creating . . .
As to the second assigned error, we find that plaintiff- negative incentives or deterrents against such behavior. 18
appellant is entitled to the award of moral and exemplary
damages for the breach committed by defendant-appellee. Moral damages having been awarded, exemplary damages
maybe properly awarded. When entitlement to moral
As discussed, defendant-appellee in sailing to Cagayan de damages has been established, the award of exemplary
Oro City with only one engine and with full knowledge of the damages is proper. 19
true condition of the vessel, acted. in bad faith with malice, in
complete disregard for the safety of the passengers and only The petitioner then instituted this petition and submitted the question of law
for its own personal advancement/interest. earlier adverted to.

The Civil Code provides: Undoubtedly, there was, between the petitioner and the private respondent,
a contract of common carriage. The laws of primary application then are the
Art. 2201. provisions on common carriers under Section 4, Chapter 3, Title VIII, Book IV
of the Civil Code, while for all other matters not regulated thereby, the Code
xxx xxx xxx of Commerce and special laws. 20

In case of fraud, bad faith, malice or wanton Under Article 1733 of the Civil Code, the petitioner was bound to observe
attitude, the obligor shall be responsible for extraordinary diligence in ensuring the safety of the private respondent. That
all damages which may be reasonably meant that the petitioner was, pursuant to Article 1755 of the said Code,
attributed to the non-performance of the bound to carry the private respondent safely as far as human care and
obligation. foresight could provide, using the utmost diligence of very cautious persons,
with due regard for all the circumstances. In this case, we are in full accord
with the Court of Appeals that the petitioner failed to discharge this
Plaintiff-appellant is entitled to moral damages for the mental
obligation.
anguish, fright and serious anxiety he suffered during the
voyage when the vessel's engine broke down and when he
disembarked from the vessel during the wee hours of the Before commencing the contracted voyage, the petitioner undertook some
morning at Cebu City when it returned. 14 repairs on the cylinder head of one of the vessel's engines. But even before it
could finish these repairs, it allowed the vessel to leave the port of origin on
only one functioning engine, instead of two. Moreover, even the lone
Moral damages are recoverable in a damage suit predicated
functioning engine was not in perfect condition as sometime after it had run
upon a breach of contract of carriage where it is proved that
its course, it conked out. This caused the vessel to stop and remain a drift at
the carrier was guilty of fraud or bad faith even if death does
sea, thus in order to prevent the ship from capsizing, it had to drop anchor.
not result. 15
Plainly, the vessel was unseaworthy even before the voyage began. For a
vessel to be seaworthy, it must be adequately equipped for the voyage and
Fraud and bad faith by defendant-appellee having been
manned with a sufficient number of competent officers and crew. 21 The
established, the award of moral damages is in order.16
failure of a common carrier to maintain in seaworthy condition its vessel
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involved in a contract of carriage is a clear breach of its duty prescribed in right; the court having to decide whether or not they should be
Article 1755 of the Civil Code. adjudicated. 28 Before the court may consider an award for exemplary
damages, the plaintiff must first show that he is entitled to moral, temperate
As to its liability for damages to the private respondent, Article 1764 of the or compensatory damages; but it is not necessary that he prove the
Civil Code expressly provides: monetary value thereof. 29

Art. 1764. Damages in cases comprised in this Section shall The Court of Appeals did not grant the private respondent actual or
be awarded in accordance with Title XVIII of this Book, compensatory damages, reasoning that no delay was incurred since there
concerning Damages. Article 2206 shall also apply to the was no demand, as required by Article 1169 of the Civil Code. This article,
death of a passenger caused by the breach of contract by however, finds no application in this case because, as found by the
common carrier. respondent Court, there was in fact no delay in the commencement of the
contracted voyage. If any delay was incurred, it was after the
The damages comprised in Title XVIII of the Civil Code are actual or commencement of such voyage, more specifically, when the voyage was
compensatory, moral, nominal, temperate or moderate, liquidated, subsequently interrupted when the vessel had to stop near Kawit Island after
and exemplary. the only functioning engine conked out.

In his complaint, the private respondent claims actual or compensatory, As to the rights and duties of the parties strictly arising out of such delay, the
moral, and exemplary damages. Civil Code is silent. However, as correctly pointed out by the petitioner, Article
698 of the Code of Commerce specifically provides for such a situation. It
Actual or compensatory damages represent the adequate compensation for reads:
pecuniary loss suffered and for profits the obligee failed to obtain. 22
In case a voyage already begun should be interrupted, the
In contracts or quasi-contracts, the obligor is liable for all the damages which passengers shall be obliged to pay the fare in proportion to
may be reasonably attributed to the non-performance of the obligation if he the distance covered, without right to recover for losses and
is guilty of fraud, bad faith, malice, or wanton attitude. 23 damages if the interruption is due to fortuitous event or force
majeure, but with a right to indemnity if the interruption
should have been caused by the captain exclusively. If the
Moral damages include moral suffering, mental anguish, fright, serious
interruption should be caused by the disability of the vessel
anxiety, besmirched reputation, wounded feelings, moral shock, social
and a passenger should agree to await the repairs, he may
humiliation, or similar injury. They may be recovered in the cases
not be required to pay any increased price of passage, but his
enumerated in Article 2219 of the Civil Code, likewise, if they are the
living expenses during the stay shall be for his own account.
proximate result of, as in this case, the petitioner's breach of the contract of
carriage. 24 Anent a breach of a contract of common carriage, moral damages
may be awarded if the common carrier, like the petitioner, acted fraudulently This article applies suppletorily pursuant to Article 1766 of the Civil
or in bad faith. 25 Code.

Exemplary damages are imposed by way of example or correction for the Of course, this does not suffice for a resolution of the case at bench for, as
public good, in addition to moral, temperate, liquidated or compensatory earlier stated, the cause of the delay or interruption was the petitioner's
damages. 26 In contracts and quasi-contracts, exemplary damages may be failure to observe extraordinary diligence. Article 698 must then be read
awarded if the defendant acted in a wanton, fraudulent, reckless, oppressive together with Articles 2199, 2200, 2201, and 2208 in relation to Article 21 of
or malevolent manner. 27 It cannot, however, be considered as a matter of the Civil Code. So read, it means that the petitioner is liable for any
pecuniary loss or loss of profits which the private respondent may have
TRANSPO | Ass 7|11

suffered by reason thereof. For the private respondent, such would be the We cannot, however, give our affirmance to the award of attorney's fees.
loss of income if unable to report to his office on the day he was supposed to Under Article 2208 of the Civil Code, these are recoverable only in the
arrive were it not for the delay. This, however, assumes that he stayed on the concept of actual damages, 32 not as moral damages 33 nor judicial
vessel and was with it when it thereafter resumed its voyage; but he did not. costs. 34Hence, to merit such an award, it is settled that the amount thereof
As he and some passengers resolved not to complete the voyage, the vessel must be proven. 35 Moreover, such must be specifically prayed for as was
had to return to its port of origin and allow them to disembark. The private not done in this caseand may not be deemed incorporated within a general
respondent then took the petitioner's other vessel the following day, using prayer for "such other relief and remedy as this court may deem just and
the ticket he had purchased for the previous day's voyage. equitable." 36 Finally, it must be noted that aside from the following, the body
of the respondent Court's decision was devoid of any statement regarding
Any further delay then in the private respondent's arrival at the port of attorney's fees:
destination was caused by his decision to disembark. Had he remained on the
first vessel, he would have reached his destination at noon of 13 November Plaintiff-appellant was forced to litigate in order that he can
1991, thus been able to report to his office in the afternoon. He, therefore, claim moral and exemplary damages for the suffering he
would have lost only the salary for half of a day. But actual or compensatory encurred [sic]. He is entitled to attorney's fees pursuant to
damages must be proved, 30 which the private respondent failed to do. There Article 2208 of the Civil Code. It states:
is no convincing evidence that he did not receive his salary for 13 November
1991 nor that his absence was not excused. Art. 2208. In the absence of stipulation, attorney's fees and
expenses of litigation, other than judicial costs cannot be
We likewise fully agree with the Court of Appeals that the petitioner is liable recovered except:
for moral and exemplary damages. In allowing its unseaworthy M/V Asia
Thailand to leave the port of origin and undertake the contracted voyage, 1. When exemplary damages are awarded;
with full awareness that it was exposed to perils of the sea, it deliberately
disregarded its solemn duty to exercise extraordinary diligence and obviously 2. When the defendant's act or omission has
acted with bad faith and in a wanton and reckless manner. On this score, compelled the plaintiff to litigate with third
however, the petitioner asserts that the safety or the vessel and passengers persons or to incur expenses to protect his
was never at stake because the sea was "calm" in the vicinity where it interest.
stopped as faithfully recorded in the vessel's log book (Exhibit "4"). Hence,
the petitioner concludes, the private respondent was merely "over-reacting" This Court holds that the above does not satisfy the benchmark of
to the situation obtaining then. 31 "factual, legal and equitable justification" needed as basis for an
award of attorney's fees. 37 In sum, for lack of factual and legal
We hold that the petitioner's defense cannot exculpate it nor mitigate its basis, the award of attorney's fees must be deleted.
liability. On the contrary, such a claim demonstrates beyond cavil the
petitioner's lack of genuine concern for the safety of its passengers. It was, WHEREFORE, the instant petition is DENIED and the challenged decision of
perhaps, only providential then the sea happened to be calm. Even so, the the Court of Appeals in CA-G.R. CV No. 39901 is AFFIRMED subject to the
petitioner should not expect its passengers to act in the manner it desired. modification as to the award for attorney's fees which is hereby SET ASIDE.
The passengers were not stoics; becoming alarmed, anxious, or frightened at
the stoppage of a vessel at sea in an unfamiliar zone as nighttime is not the
Costs against the petitioner.
sole prerogative of the faint-hearted. More so in the light of the many
tragedies at sea resulting in the loss of lives of hopeless passengers and
SO ORDERED.
damage to property simply because common carriers failed in their duty to
exercise extraordinary diligence in the performance of their obligations.
TRANSPO | Ass 7|12

G.R. No. 119995 November 18, 1997 Los Angeles Office and chose 1 July 1988, a Friday, for their departure. While
Tiongson easily got a booking for the flight, SINGSON was not as lucky. It
CARLOS SINGSON, petitioner, was discovered that his ticket booklet did not have flight coupon no. 5
vs. corresponding to the San Francisco-Hongkong leg of the trip. Instead, what
COURT OF APPEALS and CATHAY PACIFIC AIRWAY, INC., respondents. was in his ticket was flight coupon no. 3 San Francisco to Los Angeles
which was supposed to have been used and removed from the ticket booklet.
It was not until 6 July 1988 that CATHAY was finally able to arrange for his
return flight to Manila.
BELLOSILLO, J.:
On 26 August 1988 SINGSON commenced an action for damages against
A contract of air carriage is a peculiar one. Imbued with public interest, CATHAY before the Regional Trial Court of Vigan, Ilocos Sur. 3 He claimed that
common carriers are required by law to carry passengers safely as far a he insisted on CATHAY's confirmation of his return flight reservation because
human care and foresight can provide, using the utmost diligence of a very of very important and urgent business engagements in the Philippines. But
cautious person, with due regard for all the circumstances. 1 A contract to CATHAY allegedly shrugged off his protestations and arrogantly directed him
transport passengers is quite different in kind and degree from any other to go to San Francisco himself and do some investigations on the matter or
contractual relation. And this because its business is mainly with the traveling purchase a new ticket subject to refund if it turned out that the missing
public. In invites people to avail of the comforts and advantages it offers. The coupon was still unused or subsisting. He remonstrated that it was the
contract of carriage, therefore, generates a relation attended with a public airline's agent/representative who must have committed the mistake of
duty. 2 Failure of the carrier to observe this high degree of care and tearing off the wrong flight coupon; that he did not have enough money to
extraordinary diligence renders it liable for any damage that may be buy new tickets; and, CATHAY could conclude the investigation in a matter of
sustained by its passengers. minutes because of its facilities. CATHAY, allegedly in scornful insolence,
simply dismissed him like an impertinent "brown pest." Thus he and his
cousin Tiongson, who deferred his own flight to accompany him, were forced
The instant case is an illustration of the exacting standard demanded by the
to leave for San Francisco on the night of 1 July 1988 to verify the missing
law of common carriers: On 24 May 1988 CARLOS SINGSON and his cousin
ticket.
Crescentino Tiongson bought from Cathay Pacific Airways, Ltd. (CATHAY), at
its Metro Manila ticket outlet two (2) open-dated, identically routed, round
trip plane tickets for the purpose of spending their vacation in the United CATHAY denied these allegations and averred that since petitioner was
States. Each ticket consisted of six (6) flight coupons corresponding to this holding an "open-dated" ticket, which meant that he was not booked on a
itinerary: flight coupon no. 1 Manila to Hongkong; flight coupon no. 2 specific flight on a particular date, there was no contract of carriage yet
Hongkong to San Francisco; flight coupon no. 3 San Francisco to Los existing such that CATHAY's refusal to immediately book him could not be
Angeles; flight coupon no. 4 Los Angeles back to San Francisco; flight construed as breach of contract of carriage. Moreover, the coupon had been
coupon no. 5 San Francisco to Hongkong; and, finally, flight coupon no. 6 missing for almost a month hence CATHAY must first verify its status, i.e.,
Hongkong to Manila. The procedure was that at the start of each leg of the whether the ticket was still valid and outstanding, before it could issue a
trip a flight coupon corresponding to the particular sector of the travel would replacement ticket to petitioner. For that purpose, it sent a request by telex
be removed from the ticket booklet so that at the end of the trip no more on the same day, 1 July 1988, to its Hongkong Headquarters where such
coupon would be left in the ticket booklet. information could be
retrieved. 4 However, due to the time difference between Los Angeles and
Hongkong, no response from the Hongkong office was immediately received.
On 6 June 1988 CARLOS SINGSON and Crescentino Tiongson left Manila on
Besides, since 2 and 3 July 1988 were a Saturday and a Sunday, respectively,
board CATHAY's Flight No. 902. They arrived safely in Los Angeles and after
and 4 July 1988 was an official holiday being U.S. Independence Day, the
staying there for about three (3) weeks they decided to return to the
telex response of CATHAY Hongkong was not read until 5 July 1988. Lastly,
Philippines. On 30 June 1988 they arranged for their return flight at CATHAY's
TRANSPO | Ass 7|13

CATHAY denied having required SINGSON to make a trip back to San proved that the carrier was guilty of fraud and bad faith even if death
Francisco; on the other hand, it was the latter who informed CATHAY that he does not result . . . . In disallowing the trial court's award of moral
was making a side trip to San Francisco. Hence, CATHAY advised him that the damages, the Court takes appropriate note of the necessity for the
response of Hongkong would be copied in San Francisco so that he could appellant's verification of the status of the missing flight coupon as
conveniently verify thereat should he wish to. well as the justifiable delay thereto attendant . . . . Contrary to the
appellee's allegation that he was peremptorily refused confirmation of
The trial court rendered a decision in favor of petitioner herein holding that his flight, and arrogantly told to verify the missing flight coupon on
CATHAY was guilty of gross negligence amounting to malice and bad faith for his own, the record shows that the appellant adopted such measures
which it was adjudged to pay petitioner P20,000.00 for actual damages with as were reasonably required under the circumstances. Even the
interest at the legal rate of twelve percent (12%) per annum from 26 August testimonies offered by the appellee and his witnesses collectively
1988 when the complaint was filed until fully paid, P500,000.00 for moral show no trace of fraud or bad faith as would justify the trial court's
damages, P400,000.00 for exemplary damages, P100,000.00 for attorney's award of moral damages.
fees, and, to pay the costs.
The basis for the award of moral damages discounted, there exists
On appeal by CATHAY, the Court of Appeals reversed the trial court's finding little or no reason to allow the exemplary damages and attorney's
that there was gross negligence amounting to bad faith or fraud and, fees adjudicated in favor of the appellee.
accordingly, modified its judgment by deleting the awards for moral and
exemplary damages, and the attorney's fees as well. Reproduced hereunder Petitioner's subsequent motion for reconsideration having been denied for
are the pertinent portions of the decision of the appellate court 5 lack of merit and for being pro forma he came to use for review. He claims
that the trial court found CATHAY guilty of gross negligence amounting to
There is enough merit in this appeal to strike down the trial court's malice and bad faith in: (a) detaching the wrong coupon; (b) using that error
award of moral and exemplary damages and attorney's fees . . . . In to deny confirmation of his return flight; and, (c) directing petitioner to
this material respect, the appellant correctly underscores the fact prematurely return to San Francisco to verify his missing coupon. He also
that the appellee held an open dated ticket for his return flight from underscores the scornful and demeaning posture of CATHAY's employees
San Francisco to manila via Hongkong and that, as a consequence, toward him. He argues that since findings of fact of the trial court are entitled
the latter was not actually confirmed on the July 1, 1988 flight or, for to the highest degree of respect from the appellate courts, especially when
that matter, any of the appellant's flight . . . . . The appellant they were supported by evidence, it was erroneous for the Court of Appeals
certainly committed no breach of contract of carriage when it refused to strike out the award of moral and exemplary damages as well as
the appellee the booking he requested on the said July 1, 1988 flight. attorney's fees allegedly for lack of basis.
As a "chance passenger," the latter had no automatic right to fly on
that flight and on that date. In its Comment, CATHAY firmly maintains that it did not breach its contract of
carriage with petitioner. It argues that it is only when passenger is confirmed
Even assuming arguendo that a breach of contract of carriage may be on a particular flight and on a particular date specifically stated in his ticket
attributed the appellant, the appellee's travails were directly that its refusal to board the passenger will result in a breach of contract. And
traceable to the mistake in detaching the San Francisco-Hongkong even assuming that there was breach of contract, there was no fraud or bad
flight coupon of his plane ticket which led to the appellant's refusal to faith on the part of CATHAY as to justify the award of moral and exemplary
honor his plane ticket. While that may constitute negligence on the damages plus attorney's fees in favor of petitioner.
part of the air carrier, the same cannot serve as basis for an award of
moral damages. The rule is that moral damages are recoverable in a There are two (2) main issues that confront the Court: first, whether a
damage suit predicated upon a breach of contract of carriage only breach of contract was committed by CATHAY when it failed to confirm the
where (a) the mishap results in the death of a passenger and (b) it is booking of petitioner for its 1 July 1988 flight; and, second, whether the
TRANSPO | Ass 7|14

carrier was liable not only for actual damages but also for moral and supposed to have been removed by U.S. Air when he
exemplary damages, and attorney's fees for failing to book petitioner on his checked in San Francisco for his flight from San
return flight to the Philippines. Francisco to Los Angeles 7 (emphasis supplied).

We find merit in the petition. CATHAY undoubtedly committed a breach of Clearly therefore petitioner was not a mere "chance passenger with no
contract when it refused to confirm petitioner's flight reservation back to the superior right to be boarded on a specific flight," as erroneously claimed by
Philippines on account of his missing flight coupon. Its contention that there CATHAY and sustained by the appellate court.
was no contract of carriage that was breached because petitioner's ticket was
open-dated is untenable. To begin with, the round trip ticket issued by the Interestingly, it appears that CATHAY was responsible for the loss of the
carrier to the passenger was in itself a complete written contract by and ticket. One of two (2) things may be surmised from the circumstances of this
between the carrier and the passenger. It has all the elements of a complete case: first, US Air (CATHAY's agent) had mistakenly detached the San
written contract, to wit: (a) the consent of the contracting parties manifested Francisco-Hongkong flight coupon thinking that it was the San Francisco-Los
by the fact that the passenger agreed to be transported by the carrier to and Angeles portion; or, second, petitioner's booklet of tickets did not from
from Los Angeles via San Francisco and Hongkong back to the Philippines, issuance include a San Francisco-Hongkong flight coupon. In either case, the
and the carrier's acceptance to bring him to his destination and then back loss of the coupon was attributed to the negligence of CATHAY's agents and
home; (b) cause or consideration, which was the fare paid by the passenger was the proximate cause of the non-confirmation of petitioner's return flight
as stated in his ticket; and, (c) object, which was the transportation of the on 1 July 1988. It virtually prevented petitioner from demanding the
passenger from the place of departure to the place of destination and back, fulfillment of the carrier's obligations under the contract. Had CATHAY's
which are also stated in his ticket. 6 In fact, the contract of carriage in the agents been diligent in double checking the coupons they were supposed to
instant case was already partially executed as the carrier complied with its detach from the passengers' tickets, there would have been no reason for
obligation to transport the passenger to his destination, i.e., Los Angeles. CATHAY not to confirm petitioner's booking as exemplified in the case of his
Only the performance of the other half of the contract which was to cousin and flight companion Tiongson whose ticket booklet was found to be
transport the passenger back to the Philippines was left to be done. in order. Hence, to hold that no contractual breach was committed by CATHAY
Moreover, Timothy Remedios, CATHAY's reservation and ticketing agent, and totally absolve it from any liability would in effect put a premium on the
unequivocally testified that petitioner indeed had reservations booked for negligence of its agent, contrary to the policy of the law requiring common
travel carriers to exercise extraordinary diligence.

Q: Were you able to grant what they wanted, if not, With regard to the second issue, we are of the firm view that the appellate
please state why? court seriously erred in disallowing moral and exemplary damages. Although
the rule is that moral damages predicated upon a breach of contract of
A: I was able to obtain a record of Mr. Singson's carriage may only be recoverable in instances where the mishap results in
computer profile from my flight reservations the death of a passenger, 8 or where the carrier is guilty of fraud or bad
computer. I verified that Mr. Singson did indeed have faith, 9 there are situations where the negligence of the carrier is so gross and
reservations booked for travel: Los Angeles to San reckless as to virtually amount to bad faith, in which case, the passenger
Francisco, San Francisco to Hongkong to Manila. I likewise becomes entitled to recover moral damages. 10
then proceeded to revalidate their tickets but was
surprised to observe that Mr. Singson's ticket did not In the instant case, the following circumstances attended the breach of
contain a flight coupon for San Francisco to contract by CATHAY, to wit: First, as heretofore discussed, the ticket coupon
Hongkong. His ticket did, however, contain a flight corresponding to the San Francisco-Hongkong flight was missing either due
coupon for San Francisco to Los Angeles which was to the negligence of CATHAY's agents in improperly detaching petitioner's
supposed to have been utilized already, that is, flight coupons or failing to issue the flight coupon for San Francisco-
TRANSPO | Ass 7|15

Hongkong in the ticket booklet; second, petitioner and his cousin presented A: While Mr. Singson was still in my office I sent a
their respective ticket booklets bearing identical itineraries to prove that telex out at approximately 10:00 a.m. on 30 June
there had been a mistake in removing the coupons of petitioner. 1988 to Hongkong Accounting Office and copied San
Furthermore, CATHAY's Timothy Remedios testified that he was able to Francisco ticket office since Mr. Singson advised he
ascertain from his flight reservations computer that petitioner indeed had might not be able to return to my office but would be
reservations booked for travel on their return flight, but CATHAY apparently going to San Francisco. 10:00 a.m. 30 June 1988 in
ignored the clear evidential import of these facts and peremptorily refused to Los Angeles is however 2:00 a.m. on 1 July 1988 in
confirm petitioner's flight while ready to confirm his traveling companion's Hongkong and since office hours start at 9:00 a.m. in
identically routed plane ticket on the lame and flimsy excuse that the Hongkong, no reply was instantly sent back to me.
existence and validity of the missing ticket must first be verified; third, The response was sent out from Hongkong on 2 July
petitioner was directed by CATHAY to go to its San Francisco office and make 1988 at approximately 12:00 noon (Hongkong time)
the necessary verification concerning the lost coupon himself. This, and was received immediately by the Los Angeles
notwithstanding the fact that CATHAY was responsible for the loss of the telex machine. However, 12:00 noon 2 July 1988
ticket and had all the necessary equipment, e.g., computers, fax and telex Hongkong time was 8:00 p.m. 1 July 1988 in Los
machines and telephones which could facilitate the verification right there at Angeles where office hours close at 5: pm.. The Los
its Los Angeles Office. Angeles office was closed on 2 and 3 July 1988 being
Saturday and Sunday and also closed 4 July 1988 for
CATHAY's allegation that it never required petitioner to go to San Francisco is a public holiday (Independence day) so the reply
unpersuasive. Petitioner categorically testified that a lady employee of from Hongkong was not read until 5 July 1988, 8:30
CATHAY in Los Angeles "insisted that we take the matter (up) with their office Los Angeles time. 14
in San Francisco." 11 In fact, it even appeared from the evidence that it was
the San Francisco office which arranged for his return flight to the Philippines But far from helping private respondent's cause, the foregoing testimony only
and not the Los Angeles office. 12 Moreover, due deference must be accorded betrayed another act of negligence committed by its employees in Hongkong.
the trial court's finding that petitioner was indeed sent by CATHAY to its San It will be observed that CATHAY's Hongkong Office received the telex from
Francisco office to verify. For good and sound reasons, this Court has Los Angeles on 1 July 1988 at approximately 2:00 a.m. (Hongkong time) and
consistently affirmed that review of the findings of fact of the trial court is not sent out their response only on 2 July 1988 at 12:00 noon. In spite of the
a function that appellate courts ordinarily undertake, such findings being as a fact that they had access to all records and facilities that would enable them
rule binding and conclusive. 13 It is true that certain exceptions have become to verify in a matter of minutes, it strangely took them more than twenty-
familiar. However, nothing in the records warrants a review based on any of four (24) hours to complete the verification process and to sent their reply to
these well-recognized exceptions; and, fourth, private respondent Los Angeles. The inevitable conclusion is that CATHAY's Hongkong personnel
endeavored to show that it undertook the verification of the lost coupon by never acted promptly and timely on the request for verification.
sending a telex to its Hongkong Office. It likewise tried to justify the five (5)
days delay in completing the verification process, claiming that it was due to Besides, to be stranded for five (5) days in a foreign land because of an air
the time difference between Hongkong and Los Angeles and the coinciding carrier's negligence is too exasperating an experience for a plane passenger.
non-working days in the United States. The following dialogue between For sure, petitioner underwent profound distress and anxiety, not to mention
Consul Cortez the worries brought by the thought that he did not have enough money to
and Cathay's reservation and ticketing agent Timothy Remedios can be sustain himself, and the embarrassment of having been forced to seek the
enlightening generosity of relatives and friends.

Q: What official action did you in turn take? Anent the accusation that private respondent's personnel were rude and
arrogant, petitioner failed to adduce sufficient evidence to substantiate his
TRANSPO | Ass 7|16

claim. Nonetheless, such fact will not in any manner affect the disposition of A: Well, it is true we stayed in the house of my
this case. Private respondent's mistake in removing the wrong coupon was nephew but still we had to spend for our food and I
compounded by several other independent acts of negligence above- left him some around five hundred dollars for our
enumerated. Taken together, they indubitably signify more than ordinary stay for around five days.
inadvertence or inattention and thus constitute a radical departure from the
extraordinary standard of care required of common carriers. Put differently, Q: How about your meals?
these circumstances reflect the carrier's utter lack of care and sensitivity to
the needs of its passengers, clearly constitutive of gross negligence, A: For our meals, we have to eat outside.
recklessness and wanton disregard of the rights of the latter, acts evidently
indistinguishable or no different from fraud, malice and bad faith. As the rule Q: Will you tell, more or less, how much you spent
now stands, where in breaching the contract of carriage the defendant airline for your meals?
is shown to have acted fraudulently, with malice or in bad faith, the award of
moral and exemplary damages, in addition to actual damages, is proper. 15
xxx xxx xxx

However, the P500,000.00 moral damages and P400,000.00 exemplary


A: For every meal we spend around thirty dollars
damages awarded by the trial court have to be reduced. The well-entrenched
each.
principle is that the grant of moral damages depends upon the discretion of
the court based on the circumstances of each case. 16 This discretion is
Q: And this is for how many days?
limited by the principle that the "amount awarded should not be palpably and
scandalously excessive" as to indicate that it was the result of prejudice or
corruption on the part of the trial court. 17 Damages are not intended to A: From July 1, up to the 6th in the morning, sir.
enrich the complainant at the expense of the defendant. They are awarded
only to alleviate the moral suffering that the injured partly had undergone by Q: So more or less how many in pesos did you spend
reason of the defendant's culpable action. 18 There is not hard-and-fast rule in for this period of waiting from July 1 to 6?
the determination of what would be a fair amount of moral damages since
each case must be governed by its own peculiar facts. A: Twenty thousand pesos, sir. 19

In the instant case, the injury suffered by petitioner is not so serious or In the absence of any countervailing evidence from private respondent, and
extensive as to warrant an award amounting to P900,000.00. The in view of the negligence attributable to it, the foregoing testimony suffices
assessment of P200,000.00 as moral damages and P50,000.00 as exemplary as basis for actual damages as determined by the court a quo.
damages in his favor is, in our view, reasonable and realistic.
As regards attorney's fees, they may be awarded when the defendant's act or
On the issue of actual damages, we agree with the Court of Appeals that the omission has compelled the plaintiff to litigate with third persons or to incur
amount of P20,000.00 granted by the trial court to petitioner should not be expenses to protect his interest. It was therefore erroneous for the Court of
disturbed. Petitioner categorically testified that he incurred the amount Appeals to delete the award made by the trial court; consequently, petitioner
during the period of his delay in departing from the United States should be awarded attorney's fees and the amount of P25,000.00, instead of
P100,000.00 earlier awarded, may be considered rational, fair and
Q: Will you kindly tell the Court what expenses if any reasonable.
did you incur for these . . . days from July 1 until you
were able to leave on July 6, 1988? WHEREFORE, the petition is GRANTED and the 14 July 1994 Decision of the
Court of Appeals is REVERSED. Private respondent is ordered to pay
TRANSPO | Ass 7|17

petitioner P20,000.00 for actual damages as fixed by the trial court, plus G.R. No. 122308 July 8, 1997
P200,000.00 for moral damages, P50,000.00 for exemplary damages and
P25,000.00 for attorney's fees. No costs. PURITA S. MAPA, CARMINA S. MAPA and CORNELIO P.
MAPA, petitioners,
SO ORDERED. vs.
COURT OF APPEALS and TRANS-WORLD AIRLINES INC., respondents.

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:

Art. 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:

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
TRANSPO | Ass 7|18

Bangkok, Thailand, now presently enrolled at the Boston University wrong gate because their flight was boarding at gate 1. Upon hearing
where she is majoring in communication. this, plaintiffs rushed to gate 1 which was in another building
terminal. At gate 1, they were told by a TWA ground stewardess that
Plaintiffs Mapa entered into contract of air transportation with flight 901 had just departed. However, they were consoled that
defendant TWA as evidence by TWA ticket Nos. 015:9475:153:304 another TWA flight was leaving for Boston after 30 minutes and
and 015:9475:153:305, purchased in Bangkok, Thailand. Said TWA plaintiffs could use the same boarding pass for the next flight. At
tickets are for Los Angeles-New York-Boston-St. Louis-Chicago. . . . around 3:15 p.m., plaintiffs Purita and Carmina were able to board
the next flight. However, the plane was not immediately cleared for
Domicile of carrier TWA is Kansas City, Missouri, USA. Its principal take off on account of a thunderstorm. The passengers were
place of business is Kansas City, Missouri, USA. TWA's place of instructed to stay inside the aircraft until 6:00 p.m. when the plane
business through which the contracts were made is Bangkok, finally left for Boston.
Thailand. The place of destination is Chicago, USA.
Upon arriving in Boston, plaintiffs Purita and Carmina proceeded to
On August 10, 1990, plaintiffs Carmina and Purita left Manila on the carousel to claim their baggages and found only three out of the
board PAL flight No. 104 for Los Angeles. Carmina was to commence seven they checked in, to wit: one Samsonite on the carousel,
schooling and thus was accompanied by Purita to assist her in another Samsonite lying on the floor near the carousel and a third
settling down at the University. baggage, an American Tourister, inside the unclaimed baggage office.
Plaintiffs immediately reported the loss of their four baggages to the
They arrived Los Angeles on the same date and stayed there until TWA Baggage Office at Logan Airport. TWA's representative
August 14, 1990 when they left for New York City. confidently assured them that their baggages would be located within
24 hours and not more than 48 hours.

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 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
On August 27, 1990, plaintiffs Purita and Carmina S. Mapa departed
plaintiffs to accomplish a passenger property questionnaire to
for Boston, taking a connecting flight on TWA's carrier, TW 0901,
facilitate a further intensive and computerized search for the lost
from JFK Airport, New York, to Boston's Logan Airport, checking in
luggage. Plaintiffs duly accomplished the passenger property
seven (7) pieces of luggage at the TWA counter in the JFK Airport.
questionnaire, taking pains to write down in detail the contents of
The seven baggages were received by a porter who issued seven
each missing baggage. The total value of the lost items amounted to
TWA baggage receipts numbered 17-8270, 71, 72, 73, 74, 75, and
$11,283.79.
76 therefor.

On September 20, 1990, plaintiff's counsel wrote TWA thru its


From the entrance gate of the terminal building, plaintiffs Purita and
General Sales Manager in the Philippines, Daniel Tuason, with office
Carmina proceeded to TWA's ticket counter and presented their
address at Ground Floor, Saville Building, Sen. Gil. J. Puyat Avenue
confirmed TWA tickets numbered 015:9475:153:304 and
corner Paseo de Roxas, Makati, Metro Manila demanding
015:9475:153:305 with a 3:00 p.m. departure time. They were
indemnification for the grave damage and injury suffered by the
issued their boarding passes and were instructed to proceed to gate
plaintiffs.
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 TWA again assured plaintiffs that intensive search was being
conducted.
TRANSPO | Ass 7|19

On October 8, 1990, TWA offered to amicably settle the case by destination, or in Kansas City which is the carrier's domicile and principal
giving plaintiffs-appellants two options: (a) transportation credit for place of business.
future TWA travel or (b) cash settlement. Five months lapsed without
any result on TWA's intensive search. 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
On January 3, 1991, plaintiffs-appellant opted for transportation is limited to US$9.07 per pound, or US$20.00 per kilo, which is in lieu of
credit for future TWA travel. actual and compensatory damages. Even assuming that petitioners' bag
weighed the maximum acceptable weight of 70 pounds, TWA's maximum
On January 11, 1991, TWA disregarded plaintiffs' option and liability is $640.00 per bag or $2,560.00 for the four pieces of baggage,
unilaterally declared the payment of $2,560.00 as constituting full which the petitioners have been offered and have accepted. TWA also
satisfaction of the plaintiffs' claim. 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,
On July 19, 1991, plaintiffs accepted the check for $2,560.00, as oppressive, or malevolent manner. 9
partial payment for the actual cost of their lost baggages and their
contents. 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
Despite demands by plaintiffs, TWA failed and refused without just Currency, representing the additional replacement cost of the items and
cause to indemnify and redress plaintiffs for the grave injury and personal effects contained in their lost luggage; and US$4,500 representing
damages they have suffered. 4 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
Purita S. Mapa, Carmina S. Mapa, and Cornelio P. Mapa (herein petitioners) necessary assistance in connection with the lost luggage.
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 After the filing of TWA's Answer to the second Amended Complaint, 11 and
responsive pleading was filed, the petitioners filed an Amended petitioners' Reply thereto, the trial court gave TWA ten days within which to
Complaint. 7 They prayed that after due trial private respondent Trans-World submit a memorandum in support of its affirmative defenses; after which the
Airlines, Inc. (hereafter, TWA), be ordered to pay them the following incident would be deemed submitted for resolution. 12 However, after TWA
amounts: (1) US$8,723.79, or its equivalent in Philippine currency, filed its Memorandum, 13 the trial court gave the petitioners five days within
representing the cost of the lost luggage and its contents; (2) US$2,949.50, which to file a reply memorandum; and TWA, two days from receipt of the
or its equivalent in Philippine currency, representing the cost of hotel, board latter to file its comment thereon. 14 The petitioners then filed their
and lodging, and communication expenses; (3) P1 million, by way of moral Opposition (by way of Reply Memorandum) 15 to which TWA filed a
damages; (4) P1 million, by way of exemplary damages, with legal interest Reply. 16 Thereafter, the petitioners submitted a Rejoinder 17; TWA, a
on said amounts from the date of extrajudicial demand thereof; and (5) Surrejoinder. 18
P500,000.00 as attorney's fees, costs of the suit, and other expenses of
litigation. 8 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:
On 26 February 1992, TWA filed its Answer to the Amended Complaint
raising, as special and affirmative defense, lack of jurisdiction of Philippine It is plaintiffs' theory that the Warsaw Convention does not apply to
courts over the action for damages in the pursuant to Article 28(1) of the the instant case because plaintiffs' contract of transportation does not
Warsaw Convention, the action could only be brought either in Bangkok constitute "international transportation" as defined in said
where the contract was entered into, or in Boston which was the place of convention. This however is belied by the Passenger Property
Questionnaire which is Annex C of plaintiffs' amended complaint.
TRANSPO | Ass 7|20

Page two of said questionnaire accomplished by plaintiffs under the Whether Article 28(1) refers to jurisdiction or only to venue is a
heading "Your Complete Itinerary" shows that the TWA tickets issued question over which authorities are sharply divided. While the
to the plaintiffs form part of the contract of transportation to be petitioner cites several cases holding that Article 28(1) refers to
performed from Manila to the United States. Since the Philippines and venue rather that jurisdiction, there are later cases cited by the
the United States are parties to the convention, plaintiffs' contracts of private respondent supporting the conclusion that the provision is
transportation come within the meaning of International jurisdictional.
Transportation.
Venue and jurisdiction are entirely distinct matters. Jurisdiction may
xxx xxx xxx not be conferred by consent or waiver upon a court which otherwise
would have no jurisdiction over the subject-matter of an action; but
On the basis of the foregoing, the Court holds that the Warsaw the venue of an action as fixed by statute may be changed by the
Convention is applicable to the case at bar, even if the basis of consent of the parties and an objection that the plaintiff brought his
plaintiffs' present action is breach of contract of carriage under the suit in the wrong country may be waived by the failure of the
New Civil Code. 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 next question to be resolved is whether or not the Court has the consent or agreement of the parties, whether or not prohibition
jurisdiction to try the present case in the light of the provision of Art. exists against their alteration.
28(1) above-quoted.
A number of reasons tends to support the characterization of Article
Under Art. 28(1) supra, a complaint for damages against an air 28(1) as a jurisdiction and not a venue provision. First, the wording
carrier can be instituted only in any of the following places/courts: of Article 32, which indicates the places where the action for
damages "must" be brought, underscores the mandatory nature of
(1) The court of the domicile of the Article 28(1). Second, this characterization is consistent with one of
carrier; 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
(2) The court of its principal place of
jurisdiction other than Article 28(1), which means that the phrase
business;
"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
(3) The court where it has a place of
the exclusive enumeration in Article 28(1) as "jurisdictions," which,
business through which the contract
as such, cannot be left to the will of the parties regardless of the time
had been made;
when the damage occurred.

(4) The court of the place of


xxx xxx xxx
destination.

It has been shown by the defendant that the domicile of the


In interpreting the provision of Art. 28(1) of the Warsaw Convention,
defendant Trans World Airlines, Inc. is Kansas City, Missouri, its
the Supreme Court in the same case of Augusto Benedicto Santos
principal place of business is also in Kansas City, Missouri, the
vs. Northwest Airlines held:
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.
TRANSPO | Ass 7|21

The Philippines not being one of the places specified in Art. 28(1) of the same Code, which provides that the law of the country to which the
abovequoted where the complaint may be instituted, this Court goods are to be transported shall govern the liability of the common carrier
therefore, does not have jurisdiction over the present case. 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
Evidently discontented with the trial court's order, the petitioners appealed to the loss of the four pieces of baggage. Neither is Article 2176 of the New Civil
the Court of Appeals, contending that the lower court erred in not holding Code on torts or quasi-delicts applicable in view of the private international
that (1) it has jurisdiction over the instant case and (2) the Warsaw law principle of lex loci delicti commissi. 22 In addition, comformably
Convention is inapplicable in the instant case because the subject matter of with Santos III v. Northwest Orient Airlines, 23 mere allegation of willful
the case is not included within the coverage of the said convention. 20 They misconduct resulting in a tort is insufficient to exclude the case from the
claimed that their cause of action could be based on breach of contract of air comprehension of the Warsaw Convention.
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 Failing in their bid to reconsider the decision, the petitioners filed this
governing tort or quasi-delict. 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
The appellate court disagreed with the petitioners and affirmed the order of applying Article 1753 of the Civil Code and the principle of lex loci
the trial court. It held that the Warsaw Convention is the law which governs delicti commissi. 24
the dispute between the petitioners and TWA because what is involved
is international transportation defined by said Convention in Article I(2). This We resolved to give due course to the petitioner after the filing by TWA of its
holding is founded on its determination that the two TWA tickets for Los Comment on the petition and noted without action for the reasons stated in
Angeles-New York-Boston-St. Louis-Chicago purchased in Bangkok, Thailand, the resolution of 25 September 1996 petitioners' Reply and Rejoinder. We
were issued in conjunction with, and therefore formed part of, the contract of then required the parties to submit their respective memoranda. They did in
transportation performed from Manila, Philippines, to the United States. due time.

The respondent court further held that the cause of action of the petitioners The petitioners insist that the Warsaw Convention is not applicable to their
arose from the loss of the four checked pieces of baggage, which then falls case because the contracts they had with TWA did not involve
under Article 18(1), Chapter III (Liability of the Carrier) of the Warsaw an international transportation. Whether the contracts were of international
Conventions. 21 Pursuant to Article 24(1) of the Convention, all actions for transportation is to be solely determined from the TWA tickets issued to them
damages, whether based on tort, code law or common law, arising from loss in Bangkok, Thailand, which showed that their itinerary was Los Angeles-New
of baggage under Article 18 of the Warsaw Convention, can only be brought York-Boston-St. Louis-Chicago. Accordingly, since the place of departure (Los
subject to the conditions and limits set forth in the Warsaw Convention. Angeles) and the place of destination (Chicago) are both within the territory
Article 28(1) thereof sets forth conditions and limits in that the action for of one High Contracting Party, with no agreed stopping place in a territory
damages may be instituted only in the territory of one of the High subject to the sovereignty, mandate, suzerainty or authority of another
Contracting Parties, before the court of (1) the domicile of the carrier, (2) the Power, the contracts did not constitute 'international transportation' as
carrier's principal place of business, (3) the place of business through which defined by the convention. They also claim to be without legal basis the
the contract has been made, or (4) the place of destination. Since the contention of TWA that their transportation contracts were of international
Philippines is not one of these places, a Philippine Court, like the RTC, has no character because of the handwritten notations in the tickets re "INT'S TKT
jurisdiction over the complaint for damages. #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.
Respondent Court of Appeals likewise held that the petitioners could not 015:9475:153:305 did not cease to be for the itinerary therein designated.
claim application of Articles 1733, 1734, 1735, 1755, and 1756 of the New Besides, it is a fact that petitioners Purita and Carmina Mapa traveled from
Civil Code on common carriers without taking into consideration Article 1753
TRANSPO | Ass 7|22

Manila to Los Angeles via Philippine Airlines (PAL) by virtue of PAL tickets declaring the Philippines' formal adherence thereto, "to the end that the
issued independently of the TWA tickets. 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 pitch issue to be resolved under the petitioner's first assigned error is
whether the contracts of transportation between Purita and Carmina Mapa, The contracts of transportation in this case are evidenced by the two TWA
on the one hand, and TWA, on the other, were contracts of "international tickets, No. 015:9475:153:304 and No. 015:9475:153:305, both purchased
transportation" under the Warsaw Convention. If they were, then we should and issued in Bangkok, Thailand. On the basis alone of the provisions therein,
sustain the trial court and the Court of Appeals in light of our ruling in Santos it is obvious that the place of departure and the place of destination are all in
v. Northwest Orient Airlines. 25 It appears clear to us that TWA itself, the trial the territory of the United States, or of a single High Contracting Party. The
court, and the Court of Appeals impliedly admit that if the sole basis were the contracts, therefore, cannot come within the purview of the first category
two TWA tickets for Los Angeles-New York-Boston-St. Louis-Chicago, the of international transportation. Neither can it be under the second category
contracts cannot be brought within the term "international transportation," as since there was NO agreed stopping place within a territory subject to the
defined in Article I(2) of the Warsaw Convention. As provided therein, a sovereignty, mandate, or authority of another power.
contract is one of international transportation only if
The only way to bring the contracts between Purita and Carmina Mapa, on
according to the contract made by the parties, the place of departure the one hand, and TWA, on the other, within the first category of
and the place of destination, whether or not there be a break in the "international transportation" is to link them with, or to make them an
transportation or a transshipment, are situated either within the integral part of, the Manila-Los Angeles travel of Purita and Carmina through
territories of two High Contracting Parties, or within the territory of a PAL aircraft. The "linkages" which have been pointed out by the TWA, the
single High Contracting Party, if there is an agreed stopping place trial court, and the Court of Appeals are (1) the handwritten notations, viz.,
within a territory subject to the sovereignty, mandate or authority of INT'L TKT # 079-4402956821-2 and INT'L TKT # 079-4402956819, on the
another power, even though that power is not a party to this two TWA tickets; and (2) the entries made by petitioners Purita and Carmina
convention. Mapa in column YOUR COMPLETE ITINERARY in TWA's Passenger Property
Questionnaire, wherein they mentioned their travel from Manila to Los
There are then two categories of international transportation, viz., (1) that Angeles in flight PR 102.
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 The alleged "international tickets" mentioned in the notations in conjunction
there be a break in the transportation or a transshipment; and (2) that where with which the two TWA tickets were issued were not presented. Clearly
the place of departure and the place of destination are within the territory of then, there is at all no factual basis of the finding that the TWA tickets were
a single High Contracting Party if there is an agreed stopping place within a issued in conjunction with the international tickets, which are even, at least
territory subject to the sovereignty, mandate, or authority of another power, as of now, non-existent.
even though the power is not a party of the Convention.
As regards the petitioner's entry in YOUR COMPLETE ITINERARY column of
The High Contracting Parties referred to in the Convention are the signatories the Passenger Property Questionnaire wherein they included the Manila-Los
thereto and those which subsequently adhered to it. In the case of the Angeles travel, it must be pointed out that this was made on 4 September
Philippines, the Convention was concurred in by the Senate, through 1990 27 by petitioners Purita and Carmina Mapa, and only in connection with
Resolution No. 19, on 16 May 1950. The Philippine instrument of accession their claim for their lost pieces of baggage. The loss occurred much earlier, or
was signed by President Elpidio Quirino on 13 October 1950 and was on 27 August 1990. The entry can by no means be considered as a part of, or
deposited with the Polish Government on 9 November 1950. The Convention supplement to, their contracts of transportation evidenced by the TWA tickets
became applicable to the Philippines on 9 February 1951. Then, on 23 which covered transportation within the United States only.
September 1955, President Ramon Magsaysay issued Proclamation No. 201,
TRANSPO | Ass 7|23

It must be underscored that the first category of international TWA should have offered evidence for its affirmative defenses at the
transportation under the Warsaw Convention is based on "the contract made preliminary hearing therefor. Section 5 of Rule 16 of the Rules of Court
by the parties." TWA does not claim that the Manila-Los Angeles contracts of expressly provides:
transportation which brought Purita and Carmina to Los Angeles were also its
contracts. It does not deny the assertion of the petitioners that those Sec. 5. Pleading grounds as affirmative defenses. Any of the
contracts were independent of the TWA tickets issued in Bangkok, Thailand. grounds for dismissal provided for in this rule, except improper
No evidence was offered that TWA and PAL had an agreement concerning venue, may be pleaded as an affirmative defense, and a preliminary
transportation of passengers from points of departures not served with hearing may be had thereon as if a motion to dismiss had been filed.
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 Without any further evidence as earlier discussed, the trial court should have
Answer 28 to the second Amended Complaint the allegation in paragraph 1.1 denied the affirmative defense of lack of jurisdiction because it did not
of the latter 29 that TWA "is a foreign corporation licensed to do business in appear to be indubitable. Section 3 of Rule 16 of the Rules of Court provides:
the Philippines with office address at Ground Floor, Saville Building, Sen. Gil.
J. Puyat Avenue, corner Paseo de Roxas, Makati, Metro Manila." Sec. 3. Hearing and order. After hearing the court may deny or
grant the motion or allow amendment of pleading, or may defer the
TWA relies on Article I(3) of the Convention, which provides as follows: hearing and determination of the motion until the trial if the ground
alleged therein does not appear to be indubitable.
3. A carriage to be performed by several successive
air carriers is deemed, for the purposes of this WHEREFORE, the instant petition is GRANTED and the challenged decision of
Convention, to be one undivided carriage, if it has 31 May 1995 of respondent Court of Appeals in CA-G.R. CV No. 39896, as
been regarded by the parties as a single operation, well as the Order of 24 July 1992 of the Regional Trial Court of Quezon City,
whether it had been agreed upon under the form of a Branch 102, in Civil Case No. Q-91-9620, is REVERSED and SET ASIDE.
single contract or of a series of contracts, and it shall
not lose its international character merely because The Regional Trial Court of Quezon City, Branch 102, is hereby DIRECTED to
one contract or a series of contracts is to be proceed with the pre-trial, if it has not been terminated, and with the trial on
performed entirely within a territory subject to the the merits of the case and then to render judgment thereon, taking into
sovereignty, suzerainty, mandate, or authority of the account the foregoing observations on the issue of jurisdiction.
same High Contracting Party.

SO ORDERED.
It also points to Article 15 of the IATA Recommend Practice 1724, which
provides: Carriage to be performed by a 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 respondent's 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 no inferences without
established factual basis.
TRANSPO | Ass 7|24

damages predicated upon a breach of contract of carriage may only be


recoverable in instances where the mishap results in death of a passenger, or
where the carrier is guilty of fraud or bad faith. The language and conduct of
petitioner's representative towards respondent Alcantara was discourteous or
arbitrary to justify the grant of moral damages. The CATHAY representative
was not only indifferent and impatient; he was also rude and insulting. He
simply advised Alcantara to buy anything he wanted. But even that was not
sincere because the representative knew that the passenger was limited only
to $20.00 which, certainly, was not enough to purchase comfortable clothings
appropriate for an executive conference. Considering that Alcantara was not
only a revenue passenger but even paid for a first class airline
accommodation and accompanied at the time by the Commercial Attache of
the Philippine Embassy who was assisting him in his problem, petitioner or its
G.R. No. 60501. March 5, 1993. agents should have been more courteous and accommodating to private
respondent, instead of giving him a curt reply, "What can we do, the baggage
CATHAY PACIFIC AIRWAYS, LTD, petitioner, vs. COURT OF APPEALS and is missing. I cannot do anything . . . Anyhow, you can buy anything you
TOMAS L. ALCANTARA, respondents. need, charged to Cathay Pacific." Where in breaching the contract of carriage
the defendant airline is not shown to have acted fraudulently or in bad faith,
Siguion-Reyna, Montecillo & Ongsiako and Tomacruz, Manguiat & Associates liability for damages is limited to the natural and probable consequences of
for petitioner. the breach of obligation which the parties had foreseen or could have
reasonably foreseen. In that case, such liability does not include moral and
Tanjuatco, Oreta, Tanjuatco, Berenger & Corpus for private respondent. exemplary damages. Conversely, if the defendant airline is shown to have
acted fraudulently or in bad faith, the award of moral and exemplary
SYLLABUS damages is proper.

1. CIVIL LAW; CONTRACT OF CARRIAGE; BREACH THEREOF; PETITIONER 3. TEMPERATE DAMAGES; RECOVERABLE ONLY UPON PROOF THAT THE
BREACHED ITS CONTRACT OF CARRIAGE WITH PRIVATE RESPONDENT CLAIMANT SUSTAINED SOME PECUNIARY LOSS. However, respondent
WHEN IT FAILED TO DELIVER HIS LUGGAGE AT THE DESIGNATED PLACE Alcantara is not entitled to temperate damages, contrary to the ruling of the
AND TIME. Petitioner breached its contract of carriage with private court a quo, in the absence of any showing that he sustained some pecuniary
respondent when it failed to deliver his luggage at the designated place and loss. It cannot be gainsaid that respondent's luggage was ultimately
time, it being the obligation of a common carrier to carry its passengers and delivered to him without serious or appreciable damage.
their luggage safely to their destination, which includes the duty not to delay
their transportation, and the evidence shows that petitioner acted 4. WARSAW CONVENTION; DOES NOT OPERATE AS AN EXCLUSIVE
fraudulently or in bad faith. ENUMERATION OF THE INSTANCES FOR DECLARING A CARRIER LIABLE FOR
BREACH OF CONTRACT OF CARRIAGE OR AS AN ABSOLUTE LIMIT OF THE
2. DAMAGES; MORAL AND EXEMPLARY DAMAGES PREDICATED UPON A EXTENT OF THAT LIABILITY; DOES NOT PRECLUDE THE OPERATION OF THE
BREACH OF CONTRACT OF CARRIAGE; RECOVERABLE ONLY IN INSTANCES CIVIL CODE AND OTHER PERTINENT LAWS. As We have repeatedly held,
WHERE THE MISHAP RESULTS IN DEATH OF A PASSENGER, OR WHERE THE although the Warsaw Convention has the force and effect of law in this
CARRIER IS GUILTY OF FRAUD OR BAD FAITH; THE CONDUCT OF country, being a treaty commitment assumed by the Philippine government,
PETITIONER'S REPRESENTATIVE TOWARDS RESPONDENT JUSTIFIES THE said convention does not operate as an exclusive enumeration of the
GRANT OF MORAL AND EXEMPLARY DAMAGES IN CASE AT BAR. Moral instances for declaring a carrier liable for breach of contract of carriage or as
TRANSPO | Ass 7|25

an absolute limit of the extent of that liability. The Warsaw Convention On 1 March 1976, respondent filed his complaint against petitioner with the
declares the carrier liable for damages in the enumerated cases and under Court of First Instance (now Regional Trial Court) of Lanao del Norte praying
certain limitations. However, it must not be construed to preclude the for temperate, moral and exemplary damages, plus attorney's fees.
operation of the Civil Code and other pertinent laws. It does not regulate,
much less exempt, the carrier from liability for damages for violating the On 18 April 1976, the trial court rendered its decision ordering CATHAY to
rights of its passengers under the contract of carriage, especially if wilfull pay Plaintiff P20,000.00 for moral damages, P5,000.00 for temperate
misconduct on the part of the carrier's employees is found or established, damages, P10,000.00 for exemplary damages, and P25,000.00 for attorney's
which is clearly the case before Us. fees, and the costs. 1

DECISION Both parties appealed to the Court of Appeals. CATHAY assailed the
conclusion of the trial court that it was accountable for breach of contract and
BELLOSILLO, J p: questioned the non-application by the court of the Warsaw Convention as
well as the excessive damages awarded on the basis of its finding that
This is a petition for review on certiorari of the decision of the Court of respondent Alcantara was rudely treated by petitioner's employees during the
Appeals which affirmed with modification that of the trial court by increasing time that his luggage could not be found. For his part, respondent Alcantara
the award of damages in favor of private respondent Tomas L. Alcantara. assigned as error the failure of the trial court to grant the full amount of
damages sought in his complaint.
The facts are undisputed: On 19 October 1975, respondent Tomas L.
Alcantara was a first class passenger of petitioner Cathay Pacific Airways, Ltd. On 11 November 1981, respondent Court of Appeals rendered its decision
(CATHAY for brevity) on its Flight No. CX-900 from Manila to Hongkong and affirming the findings of fact of the trial court but modifying its award by
onward from Hongkong to Jakarta on Flight No. CX-711. The purpose of his increasing the moral damages to P80,000.00, exemplary damages to
trip was to attend the following day, 20 October 1975, a conference with the P20,000.00 and temperate or moderate damages to P10,000.00. The award
Director General of Trade of Indonesia, Alcantara being the Executive Vice- of P25,000.00 for attorney's fees was maintained.
President and General Manager of Iligan Cement Corporation, Chairman of
the Export Committee of the Philippine Cement Corporation, and The same grounds raised by petitioner in the Court of Appeals are reiterated
representative of the Cement Industry Authority and the Philippine Cement before Us. CATHAY contends that: (1) the Court of Appeals erred in holding
Corporation. He checked in his luggage which contained not only his clothing petitioner liable to respondent Alcantara for moral, exemplary and temperate
and articles for personal use but also papers and documents he needed for damages as well as attorney's fees; and, (2) the Court of Appeals erred in
the conference. failing to apply the Warsaw Convention on the liability of a carrier to its
passengers.
Upon his arrival in Jakarta, respondent discovered that his luggage was
missing. When he inquired about his luggage from CATHAY's representative On its first assigned error, CATHAY argues that although it failed to transport
in Jakarta, private respondent was told that his luggage was left behind in respondent Alcantara's luggage on time, the one-day delay was not made in
Hongkong. For this, respondent Alcantara was offered $20.00 as bad faith so as to justify moral, exemplary and temperate damages. It
"inconvenience money" to buy his immediate personal needs until the submits that the conclusion of respondent appellate court that private
luggage could be delivered to him. respondent was treated rudely and arrogantly when he sought assistance
from CATHAY's employees has no factual basis, hence, the award of moral
His luggage finally reached Jakarta more than twenty four (24) hours after damages has no leg to stand on.
his arrival. However, it was not delivered to him at his hotel but was required
by petitioner to be picked up by an official of the Philippine Embassy. Petitioner's first assigned error involves findings of fact which are not
reviewable by this Court. 2 At any rate, it is not impressed with merit.
TRANSPO | Ass 7|26

Petitioner breached its contract of carriage with private respondent when it A: He was trying to press the fellow to make the report and if possible make
failed to deliver his luggage at the designated place and time, it being the the delivery of his baggage as soon as possible.
obligation of a common carrier to carry its passengers and their luggage
safely to their destination, which includes the duty not to delay their Q: And what did the agent or duty officer say, if any?
transportation, 3 and the evidence shows that petitioner acted fraudulently or
in bad faith. A: The duty officer, of course, answered back saying 'What can we do, the
baggage is missing. I cannot do anything.' something like it. 'Anyhow you can
Moral damages predicated upon a breach of contract of carriage may only be buy anything you need, charged to Cathay Pacific.'
recoverable in instances where the mishap results in death of a passenger, 4
or where the carrier is guilty of fraud or bad faith. 5 Q: What was the demeanor or comportment of the duty officer of Cathay
Pacific when he said to Mr. Alcantara 'You can buy anything chargeable to
In the case at bar, both the trial court and the appellate court found that Cathay Pacific'?
CATHAY was grossly negligent and reckless when it failed to deliver the
luggage of petitioner at the appointed place and time. We agree. CATHAY A: If I had to look at it objectively, the duty officer would like to dismiss the
alleges that as a result of mechanical trouble, all pieces of luggage on board affair as soon as possible by saying indifferently 'Don't worry. It can be
the first aircraft bound for Jakarta were unloaded and transferred to the found.'" 7
second aircraft which departed an hour and a half later. Yet, as the Court of
Appeals noted, petitioner was not even aware that it left behind private Indeed, the aforequoted testimony shows that the language and conduct of
respondent's luggage until its attention was called by the Hongkong Customs petitioner's representative towards respondent Alcantara was discourteous or
authorities. More, bad faith or otherwise improper conduct may be attributed arbitrary to justify the grant of moral damages. The CATHAY representative
to the employees of petitioner. While the mere failure of CATHAY to deliver was not only indifferent and impatient; he was also rude and insulting. He
respondent's luggage at the agreed place and time did not ipso facto amount simply advised Alcantara to buy anything he wanted. But even that was not
to willful misconduct since the luggage was eventually delivered to private sincere because the representative knew that the passenger was limited only
respondent, albeit belatedly, 6 We are persuaded that the employees of to $20.00 which, certainly, was not enough to purchase comfortable clothings
CATHAY acted in bad faith. We refer to the deposition of Romulo Palma, appropriate for an executive conference. Considering that Alcantara was not
Commercial Attache of the Philippine Embassy at Jakarta, who was with only a revenue passenger but even paid for a first class airline
respondent Alcantara when the latter sought assistance from the employees accommodation and accompanied at the time by the Commercial Attache of
of CATHAY. This deposition was the basis of the findings of the lower courts the Philippine Embassy who was assisting him in his problem, petitioner or its
when both awarded moral damages to private respondent. Hereunder is part agents should have been more courteous and accommodating to private
of Palma's testimony respondent, instead of giving him a curt reply, "What can we do, the baggage
is missing. I cannot do anything . . . Anyhow, you can buy anything you
"Q: What did Mr. Alcantara say, if any? need, charged to Cathay Pacific." CATHAY's employees should have been
more solicitous to a passenger in distress and assuaged his anxieties and
A. Mr. Alcantara was of course . . . . I could understand his position. He was apprehensions. To compound matters, CATHAY refused to have the luggage
furious for the experience because probably he was thinking he was going to of Alcantara delivered to him at his hotel; instead, he was required to pick it
meet the Director-General the following day and, well, he was with no change up himself and an official of the Philippine Embassy. Under the
of proper clothes and so, I would say, he was not happy about the situation. circumstances, it is evident that petitioner was remiss in its duty to provide
proper and adequate assistance to a paying passenger, more so one with first
Q: What did Mr. Alcantara say? class accommodation.
TRANSPO | Ass 7|27

Where in breaching the contract of carriage the defendant airline is not When petitioner airline misplaced respondent's luggage and failed to deliver it
shown to have acted fraudulently or in bad faith, liability for damages is to its passenger at the appointed place and time, some special species of
limited to the natural and probable consequences of the breach of obligation injury must have been caused to him. For sure, the latter underwent
which the parties had foreseen or could have reasonably foreseen. In that profound distress and anxiety, and the fear of losing the opportunity to fulfill
case, such liability does not include moral and exemplary damages. 8 the purpose of his trip. In fact, for want of appropriate clothings for the
Conversely, if the defendant airline is shown to have acted fraudulently or in occasion brought about by the delay of the arrival of his luggage, to his
bad faith, the award of moral and exemplary damages is proper. embarrassment and consternation respondent Alcantara had to seek
postponement of his pre-arranged conference with the Director General of
However, respondent Alcantara is not entitled to temperate damages, Trade of the host country.
contrary to the ruling of the court a quo, in the absence of any showing that
he sustained some pecuniary loss. 9 It cannot be gainsaid that respondent's In one case, 13 this Court observed that a traveller would naturally suffer
luggage was ultimately delivered to him without serious or appreciable mental anguish, anxiety and shock when he finds that his luggage did not
damage. travel with him and he finds himself in a foreign land without any article of
clothing other than what he has on.
As regards its second assigned error, petitioner airline contends that the
extent of its liability for breach of contract should be limited absolutely to Thus, respondent is entitled to moral and exemplary damages. We however
that set forth in the Warsaw Convention. We do not agree. As We have find the award by the Court of Appeals of P80,000.00 for moral damages
repeatedly held, although the Warsaw Convention has the force and effect of excessive, hence, We reduce the amount to P30,000.00. The exemplary
law in this country, being a treaty commitment assumed by the Philippine damages of P20,000.00 being reasonable is maintained, as well as the
government, said convention does not operate as an exclusive enumeration attorney's fees of P25,000.00 considering that petitioner's act or omission
of the instances for declaring a carrier liable for breach of contract of carriage has compelled Alcantara to litigate with third persons or to incur expenses to
or as an absolute limit of the extent of that liability. 10 The Warsaw protect his interest. 14
Convention declares the carrier liable for damages in the enumerated cases
and under certain limitations. 11 However, it must not be construed to WHEREFORE, the assailed decision of respondent Court of Appeals is
preclude the operation of the Civil Code and other pertinent laws. It does not AFFIRMED with the exception of the award of temperate damages of
regulate, much less exempt, the carrier from liability for damages for P10,000.00 which is deleted, while the award of moral damages of
violating the rights of its passengers under the contract of carriage, 12 P80,000.00 is reduced to P30,000.00. The award of P20,000.00 for
especially if wilfull misconduct on the part of the carrier's employees is found exemplary damages is maintained as reasonable together with the attorney's
or established, which is clearly the case before Us. For, the Warsaw fees of P25,000.00. The moral and exemplary damages shall earn interest at
Convention itself provides in Art. 25 that the legal rate from 1 March 1976 when the complaint was filed until full
payment.
"(1) The carrier shall not be entitled to avail himself of the provisions of this
convention which exclude or limit his liability, if the damage is caused by his SO ORDERED.
wilfull misconduct or by such default on his part as, in accordance with the
law of the court to which the case is submitted, is considered to be
equivalent to wilfull misconduct."

(2) Similarly the carrier shall not be entitled to avail himself of the said
provisions, if the damage is caused under the same circumstances by any
agent of the carrier acting within the scope of his employment."
TRANSPO | Ass 7|28

G.R. No. 118664 August 7, 1998

JAPAN AIRLINES, petitioner,


vs.
THE COURT OF APPEALS, ENRIQUE AGANA., MARIA ANGELA NINA
AGANA, ADALIA B. FRANCISCO and JOSE MIRANDA, respondents.

ROMERO, J.:

Before us is an appeal by certiorari filed by petitioner Japan Airlines, Inc.


(JAL) seeking the reversal of the decision of the Court of Appeals, 1 which
affirmed with modification the award of damages made by the trial court in
favor of herein private respondents Enrique Agana, Maria Angela Nina Agana,
Adelia Francisco and Jose Miranda.

On June 13, 1991, private respondent Jose Miranda boarded JAL flight No. JL
001 in San Francisco, California bound for Manila. Likewise, on the same day
private respondents Enrique Agana, Maria Angela Nina Agana and Adelia
Francisco left Los Angeles, California for Manila via JAL flight No. JL 061. As
an incentive for travelling on the said airline, both flights were to make an
overnight stopover at Narita, Japan, at the airlines' expense, thereafter
proceeding to Manila the following day.

Upon arrival at Narita, Japan on June 14, 1991, private respondents were
billeted at Hotel Nikko Narita for the night. The next day, private
respondents, on the final leg of their journey, went to the airport to take their
flight to Manila. However, due to the Mt. Pinatubo eruption, unrelenting
ashfall blanketed Ninoy Aquino International Airport (NAIA), rendering it
inaccessible to airline traffic. Hence, private respondents' trip to Manila was
cancelled indefinitely.

To accommodate the needs of its stranded passengers, JAL rebooked all the
Manila-bound passengers on flight No. 741 due to depart on June 16, 1991
and also paid for the hotel expenses for their unexpected overnight stay. On
TRANSPO | Ass 7|29

June 16, 1991, much to the dismay of the private respondents, their long Thus, the award of moral damages should be as it is hereby
anticipated flight to Manila was again cancelled due to NAIA's indefinite reduced to P200,000.00 for each of the plaintiffs, the
closure. At this point, JAL informed the private respondents that it would no exemplary damages to P300,000.00 and the attorney's fees
longer defray their hotel and accommodation expense during their stay in to P100,000.00 plus the costs.
Narita.
WHEREFORE, with the foregoing Modification, the judgment
Since NAIA was only reopened to airline traffic on June 22, 1991, private appealed from is hereby AFFIRMED in all other respects.
respondents were forced to pay for their accommodations and meal expenses
from their personal funds from June 16 to June 21, 1991. Their unexpected JAL filed a motion for reconsideration which proved futile and
stay in Narita ended on June 22, 1991 when they arrived in Manila on board unavailing. 4
JL flight No. 741.
Failing in its bid to reconsider the decision, JAL has now filed this instant
Obviously, still reeling from the experience, private respondents, on July 25, petition.
1991, commenced an action for damages against JAL before the Regional
Trial Court of Quezon City, Branch 104. 2 To support their claim, private The issue to be resolved is whether JAL, as a common carrier has the
respondents asserted that JAL failed to live up to its duty to provide care and obligation to shoulder the hotel and meal expenses of its stranded
comfort to its stranded passengers when it refused to pay for their hotel and passengers until they have reached their final destination, even if the delay
accommodation expenses from June 16 to 21, 1991 at Narita, Japan. In were caused by "force majeure."
other words, they insisted that JAL was obligated to shoulder their expenses
as long as they were still stranded in Narita. On the other hand, JAL denied To begin with, there is no dispute that the Mt. Pinatubo eruption prevented
this allegation and averred that airline passengers have no vested right to JAL from proceeding to Manila on schedule. Likewise, private respondents
these amenities in case a flight is cancelled due to "force majeure." concede that such event can be considered as "force majeure" since their
delayed arrival in Manila was not imputable to JAL. 5
On June 18, 1992, the trial court rendered its judgment in favor of private
respondents holding JAL liable for damages, viz.: However, private respondents contend that while JAL cannot be held
responsible for the delayed arrival in Manila, it was nevertheless liable for
WHEREFORE, judgment is rendered in favor of plaintiffs their living expenses during their unexpected stay in Narita since airlines
ordering the defendant Japan Airlines to pay the plaintiffs have the obligation to ensure the comfort and convenience of its passengers.
Enrique Agana, Adalia B. Francisco and Maria Angela Nina While we sympathize with the private respondents' plight, we are unable to
Agana the sum of One million Two Hundred forty-six accept this contention.
Thousand Nine Hundred Thirty-Six Pesos (P1,246,936.00)
and Jose Miranda the sum of Three Hundred Twenty We are not unmindful of the fact that in a plethora of cases we have
Thousand Six Hundred sixteen and 31/100 (P320,616.31) as consistently ruled that a contract to transport passengers is quite different in
actual, moral and exemplary damages and pay attorney's kind, and degree from any other contractual relation. It is safe to conclude
fees in the amount of Two Hundred Thousand Pesos that it is a relationship imbued with public interest. Failure on the part of the
(P200,000.00), and to pay the costs of suit. common carrier to live up to the exacting standards of care and diligence
renders it liable for any damages that may be sustained by its passengers.
Undaunted, JAL appealed the decision before the Court of Appeals, which, However, this is not to say that common carriers are absolutely responsible
however, with the exception of lowering the damages awarded affirmed the for all injuries or damages even if the same were caused by a fortuitous
trial court's finding, 3 thus:
TRANSPO | Ass 7|30

event. To rule otherwise would render the defense of "force majeure," as an Hence, PAL necessarily would still have to exercise
exception from any liability, illusory and ineffective. extraordinary diligence in safeguarding the comfort,
convenience and safety of its stranded passengers until they
Accordingly, there is no question that when a party is unable to fulfill his have reached their final destination. On this score, PAL
obligation because of "force majeure," the general rule is that he cannot be grossly failed considering the then ongoing battle between
held liable for damages for non-performance. 6 Corollarily, when JAL was government forces and Muslim rebels in Cotabato City and
prevented from resuming its flight to Manila due to the effects of Mt. the fact that the private respondent was a stranger to the
Pinatubo eruption, whatever losses or damages in the form of hotel and meal place.
expenses the stranded passengers incurred, cannot be charged to JAL. Yet it
is undeniable that JAL assumed the hotel expenses of respondents for their The reliance is misplaced. The factual background of the PAL case is different
unexpected overnight stay on June 15, 1991. from the instant petition. In that case there was indeed a fortuitous event
resulting in the diversion of the PAL flight. However, the unforeseen diversion
Admittedly, to be stranded for almost a week in a foreign land was an was worsened when "private respondents (passenger) was left at the airport
exasperating experience for the private respondents. To be sure, they and could not even hitch a ride in a Ford Fiera loaded with PAL
underwent distress and anxiety during their unanticipated stay in Narita, but personnel," 10 not to mention the apparent apathy of the PAL station
their predicament was not due to the fault or negligence of JAL but the manager as to the predicament of the stranded passengers. 11 In light of
closure of NAIA to international flights. Indeed, to hold JAL, in the absence of these circumstances, we held that if the fortuitous event was accompanied by
bad faith or negligence, liable for the amenities of its stranded passengers by neglect and malfeasance by the carrier's employees, an action for damages
reason of a fortuitous event is too much of a burden to assume. against the carrier is permissible. Unfortunately, for private respondents,
none of these conditions are present in the instant petition.
Furthermore, it has been held that airline passengers must take such risks
incident to the mode of travel. 7 In this regard, adverse weather conditions or We are not prepared, however, to completely absolve petitioner JAL from any
extreme climatic changes are some of the perils involved in air travel, the liability. It must be noted that private respondents bought tickets from the
consequences of which the passenger must assume or expect. After all, United States with Manila as their final destination. While JAL was no longer
common carriers are not the insurer of all risks. 8 required to defray private respondents' living expenses during their stay in
Narita on account of the fortuitous event, JAL had the duty to make the
Paradoxically, the Court of Appeals, despite the presence of "force majeure," necessary arrangements to transport private respondents on the first
still ruled against JAL relying in our decision in PAL v. Court of available connecting flight to Manila. Petitioner JAL reneged on its obligation
Appeals, 9 thus: to look after the comfort and convenience of its passengers when it
declassified private respondents from "transit passengers" to "new
The position taken by PAL in this case clearly illustrates its passengers" as a result of which private respondents were obliged to make
failure to grasp the exacting standard required by law. the necessary arrangements themselves for the next flight to Manila. Private
Undisputably, PAL's diversion of its flight due to inclement respondents were placed on the waiting list from June 20 to June 24. To
weather was a fortuitous event. Nonetheless, such assure themselves of a seat on an available flight, they were compelled to
occurrence did not terminate PAL's contract with its stay in the airport the whole day of June 22, 1991 and it was only at 8:00
passengers. Being in the business of air carriage and the sole p.m. of the aforesaid date that they were advised that they could be
one to operate in the country, PAL is deemed equipped to accommodated in said flight which flew at about 9:00 a.m. the next day.
deal with situations as in the case at bar. What we said in one
case once again must be stressed, i.e., the relation of carrier We are not oblivious to the fact that the cancellation of JAL flights to Manila
and passenger continues until the latter has been landed at from June 15 to June 21, 1991 caused considerable disruption in passenger
the port of destination and has left the carrier's premises. booking and reservation. In fact, it would be unreasonable to expect,
TRANSPO | Ass 7|31

considering NAIA's closure, that JAL flight operations would be normal on the
days affected. Nevertheless, this does not excuse JAL from its obligation to
make the necessary arrangements to transport private respondents on its
first available flight to Manila. After all, it had a contract to transport private
respondents from the United States to Manila as their final destination.

Consequently, the award of nominal damages is in order. Nominal damages


are adjudicated in order that a right of a plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recognized and not for the
purpose of indemnifying any loss suffered by him. 12 The court may award
nominal damages in every obligation arising from any source enumerated in
article 1157, or in every case where any property right has been invaded. 13

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals


dated December 22, 1993 is hereby MODIFIED. The award of actual, moral
and exemplary damages is hereby DELETED. Petitioner JAL is ordered to pay
each of the private respondents nominal damages in the sum of P100,000.00
each including attorney' s fees of P50,000.00 plus costs.

SO ORDERED.

G.R. No. L-82619 September 15, 1993

PHILIPPINE AIRLINES, INC., petitioner,


vs.
COURT OF APPEALS and PEDRO ZAPATOS, respondents.

Leighton R. Liazon for petitioner.

Balmes L. Ocampo for private respondent.


TRANSPO | Ass 7|32

from Japan asked him to deliver to Mrs. Fe Obid of Gingoog City, were still on
board. His plea fell on deaf ears. PAL then issued to private respondent a free
BELLOSILLO, J.: ticket to Iligan city, which the latter received under protest. 5 Private
respondent was left at the airport and could not even hitch a ride in the Ford
This petition for review in certiorari seeks to annul and set aside the decision Fiera loaded with PAL personnel. 6 PAL neither provided private respondent
of the then Intermediate Appellant Court, 1 now Court of Appeals, dated 28 with transportation from the airport to the city proper nor food and
February 1985, in AC-G.R. CV No. 69327 ("Pedro Zapatos v. Philippine accommodation for his stay in Cotabato City.
Airlines, Inc.") affirming the decision of the then Court of first Instance, now
Regional Trial Court, declaring Philippine Airlines, Inc., liable in damages for The following day, private respondent purchased a PAL ticket to Iligan City.
breach of contract. He informed PAL personnel that he would not use the free ticket because he
was filing a case against PAL. 7 In Iligan City, private respondent hired a car
On 25 November 1976, private respondent filed a complaint for damages for from the airport to Kolambugan, Lanao del Norte, reaching Ozamiz City by
breach of contract of carriage 2against Philippine Airlines, Inc. (PAL), before crossing the bay in a launch. 8 His personal effects including the camera,
the then Court of First Instance, now Regional Trial Court, of Misamis which were valued at P2,000.00 were no longer recovered.
Occidental, at Ozamiz City. According to him, on 2 August 1976, he was
among the twenty-one (21) passengers of PAL Flight 477 that took off from On 13 January 1977, PAL filed its answer denying that it unjustifiably refused
Cebu bound for Ozamiz City. The routing of this flight was Cebu-Ozamiz- to accommodate private respondent. 9 It alleged that there was simply no
Cotabato. While on flight and just about fifteen (15) minutes before landing more seat for private respondent on Flight 560 since there were only six (6)
at Ozamiz City, the pilot received a radio message that the airport was closed seats available and the priority of accommodation on Flight 560 was based on
due to heavy rains and inclement weather and that he should proceed to the check-in sequence in Cebu; that the first six (6) priority passengers on
Cotabato City instead. Flight 477 chose to take Flight 560; that its Station Agent explained in a
courteous and polite manner to all passengers the reason for PAL's inability
Upon arrival at Cotabato City, the PAL Station Agent informed the passengers to transport all of them back to Cebu; that the stranded passengers agreed
of their options to return to Cebu on flight 560 of the same day and thence to to avail of the options and had their respective tickets exchanged for their
Ozamiz City on 4 August 1975, or take the next flight to Cebu the following onward trips; that it was
day, or remain at Cotabato and take the next available flight to Ozamiz City only the private respondent who insisted on being given priority in the
on 5 August 1975. 3 The Station Agent likewise informed them that Flight 560 accommodation; that pieces of checked-in baggage and had carried items of
bound for Manila would make a stop-over at Cebu to bring some of the the Ozamiz City passengers were removed from the aircraft; that the reason
diverted passengers; that there were only six (6) seats available as there for their pilot's inability to land at Ozamis City airport was because the
were already confirmed passengers for Manila; and, that the basis for priority runway was wet due to rains thus posing a threat to the safety of both
would be the check-in sequence at Cebu. passengers and aircraft; and, that such reason of force majeure was a valid
justification for the pilot to bypass Ozamiz City and proceed directly to
Private respondent chose to return to Cebu but was not accommodated Cotabato City.
because he checked-in as passenger No. 9 on Flight 477. He insisted on
being given priority over the confirmed passengers in the accommodation, On 4 June 1981, the trial court rendered its decision 10
the dispositive portion
but the Station Agent refused private respondent's demand explaining that of which states:
the latter's predicament was not due to PAL's own doing but to be a force
majeure. 4 WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendant Philippine AirLines, Inc.
Private respondent tried to stop the departure of Flight 560 as his personal ordering the latter to pay:
belongings, including a package containing a camera which a certain Miwa
TRANSPO | Ass 7|33

(1) As actual damages, the sum of Two Hundred Pesos In its petition, PAL vigorously maintains that private respondent's principal
(P200.00) representing plaintiff's expenses for transportation, cause of action was its alleged denial of private respondent's demand for
food and accommodation during his stranded stay at priority over the confirmed passengers on Flight 560. Likewise, PAL points
Cotabato City; the sum of Forty-Eight Pesos (P48.00) out that the complaint did not impute to PAL neglect in failing to attend to
representing his flight fare from Cotabato City to Iligan city; the needs of the diverted passengers; and, that the question of negligence
the sum of Five Hundred Pesos (P500.00) representing was not and never put in issue by the pleadings or proved at the trial.
plaintiff's transportation expenses from Iligan City to Ozamiz
City; and the sum of Five Thousand Pesos (P5,000.00) as loss Contrary to the above arguments, private respondent's amended complaint
of business opportunities during his stranded stay in Cotabato touched on PAL's indifference and inattention to his predicament. The
City; pertinent portion of the amended complaint 14 reads:

(2) As moral damages, the sum of Fifty Thousand Pesos 10. That by virtue of the refusal of the defendant through its
(P50,000.00) for plaintiff's hurt feelings, serious anxiety, agent in Cotabato to accommodate (sic) and allow the
mental anguish and unkind and discourteous treatment plaintiff to take and board the plane back to Cebu, and by
perpetrated by defendant's employees during his stay as accomodating (sic) and allowing passengers from Cotabato
stranded passenger in Cotabato City; for Cebu in his stead and place, thus forcing the plaintiff
against his will, to be left and stranded in Cotabato, exposed
(3) As exemplary damages, the sum of Ten Thousand Pesos to the peril and danger of muslim rebels plundering at the
(P10,000.00) to set a precedent to the defendant airline that time, the plaintiff, as a consequence, (have) suffered mental
it shall provide means to give comfort and convenience to anguish, mental torture, social humiliation, bismirched
stranded passengers; reputation and wounded feeling, all amounting to a
conservative amount of thirty thousand (P30,000.00) Pesos.
(4) The sum of Three Thousand Pesos (P3,000.00) as
attorney's fees; To substantiate this aspect of apathy, private respondent testified 15

(5) To pay the costs of this suit. A I did not even notice that I was I think the
last passenger or the last person out of the
PAL appealed to the Court of Appeals which on 28 February 1985, finding no PAL employees and army personnel that were
reversible error, affirmed the judgment of the court a quo. 11 left there. I did not notice that when I was
already outside of the building after our
PAL then sought recourse to this Court by way of a petition for review conversation.
on certiorari 12 upon the following issues: (1) Can the Court of Appeals render
a decision finding petitioner (then defendant-appellant in the court below) Q What did you do next?
negligent and, consequently, liable for damages on a question of substance
which was neither raised on a question nor proved at the trial? (2) Can the A I banished (sic) because it seems that there
Court of Appeals award actual and moral damages contrary to the evidence was a war not far from the airport. The sound
and established jurisprudence? 13 of guns and the soldiers were plenty.

An assiduous examination of the records yields no valid reason for reversal of Q After that what did you do?
the judgment on appeal; only a modification of its disposition.
TRANSPO | Ass 7|34

A I tried to look for a transportation that evidence becomes property of the case and all the parties are amenable to
could bring me down to the City of Cotabato. any favorable or unfavorable effects resulting from the evidence. 17

Q Were you able to go there? PAL instead attempted to rebut the aforequoted testimony. In the process, it
failed to substantiate its counter allegation for want of concrete proof 18
A I was at about 7:00 o'clock in the evening
more or less and it was a private jeep that I Atty. Rubin O. Rivera PAL's counsel:
boarded. I was even questioned why I and
who am (sic) I then. Then I explained my Q You said PAL refused to help you when you
side that I am (sic) stranded passenger. Then were in Cotabato, is that right?
they brought me downtown at Cotabato.
Private respondent:
Q During your conversation with the Manager
were you not offered any vehicle or A Yes.
transportation to Cotabato airport downtown?
Q Did you ask them to help you regarding
A In fact I told him (Manager) now I am by- any offer of transportation or of any other
passed passenger here which is not my matter asked of them?
destination what can you offer me. Then they
answered, "it is not my fault. Let us forget A Yes, he (PAL PERSONNEL) said what is? It
that." is not our fault.

Q In other words when the Manager told you Q Are you not aware that one fellow
that offer was there a vehicle ready? passenger even claimed that he was given
Hotel accommodation because they have no
A Not yet. Not long after that the Ford Fiera money?
loaded with PAL personnel was passing by
going to the City of Cotabato and I stopped it xxx xxx xxx
to take me a ride because there was no more
available transportation but I was not
A No, sir, that was never offered to me. I
accommodated.
said, I tried to stop them but they were
already riding that PAL pick-up jeep, and I
Significantly, PAL did not seem to mind the introduction of evidence which was not accommodated.
focused on its alleged negligence in caring for its stranded passengers. Well-
settled is the rule in evidence that the protest or objection against the
Having joined in the issue over the alleged lack of care it exhibited towards
admission of evidence should be presented at the time the evidence is
its passengers, PAL cannot now turn around and feign surprise at the
offered, and that the proper time to make protest or objection to the
outcome of the case. When issues not raised by the pleadings are tried by
admissibility of evidence is when the question is presented to the witness or
express or implied consent of the parties, they shall be treated in all respects
at the time the answer thereto is given. 16 There being no objection, such
as if they had been raised in the pleadings. 19
TRANSPO | Ass 7|35

With regard to the award of damages affirmed by the appellate court, PAL While the failure of plaintiff in the first instance to reach his
argues that the same is unfounded. It asserts that it should not be charged destination at Ozamis City in accordance with the contract of
with the task of looking after the passengers' comfort and convenience carriage was due to the closure of the airport on account of
because the diversion of the flight was due to a fortuitous event, and that if rain and inclement weather which was radioed to defendant
made liable, an added burden is given to PAL which is over and beyond its 15 minutes before landing, it has not been disputed by
duties under the contract of carriage. It submits that granting arguendo that defendant airline that Ozamis City has no all-weather airport
negligence exists, PAL cannot be liable in damages in the absence of fraud or and has to cancel its flight to Ozamis City or by-pass it in the
bad faith; that private respondent failed to apprise PAL of the nature of his event of inclement weather. Knowing this fact, it becomes the
trip and possible business losses; and, that private respondent himself is to duty of defendant to provide all means of comfort and
be blamed for unreasonably refusing to use the free ticket which PAL issued. convenience to its passengers when they would have to be
left in a strange place in case of such by-passing. The steps
The contract of air carriage is a peculiar one. Being imbued with public taken by defendant airline company towards this end has not
interest, the law requires common carriers to carry the passengers safely as been put in evidence, especially for those 7 others who were
far as human care and foresight can provide, using the utmost diligence of not accommodated in the return trip to Cebu, only 6 of the
very cautious persons, with due regard for all the circumstances. 20 In Air 21 having been so accommodated. It appears that plaintiff
France v. Carrascoso, 21 we held that had to leave on the next flight 2 days later. If the cause of
non-fulfillment of the contract is due to a fortuitous event, it
A contract to transport passengers is quite different in kind has to be the sole and only cause (Art. 1755 CC., Art. 1733
and degree from any other contractual relation. And this, C.C.) Since part of the failure to comply with the obligation of
because of the relation which an air carrier sustains with the common carrier to deliver its passengers safely to their
public. Its business is mainly with the travelling public. It destination lay in the defendant's failure to provide comfort
invites people to avail of the comforts and advantages it and convenience to its stranded passengers using extra-
offers. The contract of air carriage, therefore, generates a ordinary diligence, the cause of non-fulfillment is not solely
relation attended with a public duty . . . . ( emphasis and exclusively due to fortuitous event, but due to something
supplied). which defendant airline could have prevented, defendant
becomes liable to plaintiff. 23
The position taken by PAL in this case clearly illustrates its failure to grasp
the exacting standard required by law. Undisputably, PAL's diversion of its While we find PAL remiss in its duty of extending utmost care to private
flight due to inclement weather was a fortuitous event. Nonetheless, such respondent while being stranded in Cotabato City, there is no sufficient basis
occurrence did not terminate PAL's contract with its passengers. Being in the to conclude that PAL failed to inform him about his non-accommodation on
business of air carriage and the sole one to operate in the country, PAL is Flight 560, or that it was inattentive to his queries relative thereto.
deemed equipped to deal with situations as in the case at bar. What we said
in one case once again must be stressed, i.e., the relation of carrier and On 3 August 1975, the Station Agent reported to his Branch Manager in
passenger continues until the latter has been landed at the port of Cotabato City that
destination and has left the carrier's premises. 22 Hence, PAL necessarily
would still have to exercise extraordinary diligence in safeguarding the 3. Of the fifteen stranded passengers two pax elected to take
comfort, convenience and safety of its stranded passengers until they have F478 on August 05, three pax opted to take F442 August 03.
reached their final destination. On this score, PAL grossly failed considering The remaining ten (10) including subject requested that they
the then ongoing battle between government forces and Muslim rebels in be instead accommodated (sic) on F446 CBO-IGN the
Cotabato City and the fact that the private respondent was a stranger to the following day where they intended to take the surface
place. As the appellate court correctly ruled transportation to OZC. Mr. Pedro Zapatos had by then been
TRANSPO | Ass 7|36

very vocal and boiceterous (sic) at the counter and we A I believed, yes.
tactfully managed to steer him inside the Station Agent's
office. Mr. Pedro Zapatos then adamantly insisted that all the Q And you want us to believe that PAL did not
diverted passengers should have been given priority over the explain (to) any of these passengers about
originating passengers of F560 whether confirmed or the decision regarding those who will board
otherwise. We explained our policies and after awhile he the aircraft back to Cebu?
seemed pacified and thereafter took his ticket (in-lieued (sic)
to CBO-IGN, COCON basis), at the counter in the presence of A No, Sir.
five other passengers who were waiting for their tickets too.
The rest of the diverted pax had left earlier after being Q Despite these facts Mr. Zapatos did any of
assured their tickets will be ready the following day. 24 the other passengers complained (sic)
regarding that incident?
Aforesaid Report being an entry in the course of business is prima
facie evidence of the facts therein stated. Private respondent, apart from his xxx xxx xxx
testimony, did not offer any controverting evidence. If indeed PAL omitted to
give information about the options available to its diverted passengers, it
A There were plenty of argument and I was
would have been deluged with complaints. But, only private respondent
one of those talking about my case.
complained

Q Did you hear anybody complained (sic) that


Atty. Rivera (for PAL)
he has not been informed of the decision
before the plane left for Cebu?
Q I understand from you Mr. Zapatos that at
the time you were waiting at Cotabato Airport
A No. 25

for the decision of PAL, you were not


informed of the decision until after the
Admittedly, private respondent's insistence on being given priority in
airplane left is that correct?
accommodation was unreasonable considering the fortuitous event and that
there was a sequence to be observed in the booking, i.e., in the order the
A Yes.
passengers checked-in at their port of origin. His intransigence in fact was
the main cause for his having to stay at the airport longer than was
COURT: necessary.

Q What do you mean by "yes"? You meant Atty. Rivera:


you were not informed?

Q And, you were saying that despite the fact


A Yes, I was not informed of their decision, that according to your testimony there were
that they will only accommodate few at least 16 passengers who were stranded
passengers. there in Cotabato airport according to your
testimony, and later you said that there were
Q Aside from you there were many other no other people left there at that time, is that
stranded passengers? correct?
TRANSPO | Ass 7|37

A Yes, I did not see anyone there around. I exemplary damages of Ten Thousand Pesos (P10,000.00) is also reduced to
think I was the only civilian who was left Five Thousand Pesos (P5,000.00). The award of actual damages in the
there. amount Five Thousand Pesos (P5,000.00) representing business losses
occasioned by private respondent's being stranded in Cotabato City is
Q Why is it that it took you long time to leave deleted.
that place?
SO ORDERED.
A Because I was arguing with the PAL
personnel. 26

Anent the plaint that PAL employees were disrespectful and inattentive
toward private respondent, the records are bereft of evidence to support the
same. Thus, the ruling of respondent Court of Appeals in this regard is
without basis. 27 On the contrary, private respondent was attended to not
only by the personnel of PAL but also by its Manager." 28

In the light of these findings, we find the award of moral damages of Fifty
Thousand Pesos (P50,000.00) unreasonably excessive; hence, we reduce the
same to Ten Thousand Pesos (P10,000.00). Conformably herewith, the award
of exemplary damages is also reduced to five Thousand Pesos (5,000.00).
Moral damages are not intended to enrich the private respondent. They are
awarded only to enable the injured party to obtain means, diversion or
amusements that will serve to alleviate the moral suffering he has undergone
by reason of the defendant's culpable action. 29

With regard to the award of actual damages in the amount of P5,000.00


representing private respondent's alleged business losses occasioned by his
stay at Cotabato City, we find the same unwarranted. Private respondent's
testimony that he had a scheduled business "transaction of shark liver oil
supposedly to have been consummated on August 3, 1975 in the morning"
and that "since (private respondent) was out for nearly two weeks I missed
to buy about 10 barrels of shark liver oil," 30 are purely speculative. Actual or
compensatory damages cannot be presumed but must be duly proved with
reasonable degree of certainty. A court cannot rely on speculation, conjecture
or guesswork as to the fact and amount of damages, but must depend upon
competent proof that they have suffered and on evidence of the actual
amount thereof. 31

WHEREFORE the decision appealed from is AFFIRMED with modification


however that the award of moral damages of Fifty Thousand Pesos
(P50,000.00) is reduced to Ten Thousand Pesos (P10,000.00) while the
TRANSPO | Ass 7|38

ABOITIZ SHIPPING CORPORATION, petitioner,


vs.
HON. COURT OF APPEALS, ELEVENTH DIVISION, LUCILA C. VIANA,
SPS. ANTONIO VIANA and GORGONIA VIANA, and PIONEER
STEVEDORING CORPORATION, respondents.

Herenio E. Martinez for petitioner.

M.R. Villaluz Law Office for private respondent.

REGALADO, J.:

In this appeal by certiorari, petitioner Aboitiz Shipping Corporation seeks a


review of the decision 1 of respondent Court of Appeals, dated July 29, 1988,
the decretal portion of which reads:

WHEREFORE, the judgment appealed from as modified by the


order of October 27, 1982, is hereby affirmed with the
modification that appellant Aboitiz Shipping is hereby ordered
to pay plaintiff-appellees the amount of P30,000.00 for the
death of Anacleto Viana; actual damages of P9,800.00;
P150,000.00 for unearned income; P7,200.00 as support for
deceased's parents; P20,000.00 as moral damages;
P10,000.00 as attorney's fees; and to pay the costs.

The undisputed facts of the case, as found by the court a quo and adopted by
respondent court, are as follows: .

The evidence disclosed that on May 11, 1975, Anacleto Viana


boarded the vessel M/V Antonia, owned by defendant, at the
port at San Jose, Occidental Mindoro, bound for Manila,
having purchased a ticket (No. 117392) in the sum of P23.10
(Exh. 'B'). On May 12, 1975, said vessel arrived at Pier 4,
North Harbor, Manila, and the passengers therein
disembarked, a gangplank having been provided connecting
G.R. No. 84458 November 6, 1989 the side of the vessel to the pier. Instead of using said
gangplank Anacleto Viana disembarked on the third deck
which was on the level with the pier. After said vessel had
TRANSPO | Ass 7|39

landed, the Pioneer Stevedoring Corporation took over the In its answer. 4 Aboitiz denied responsibility contending that at the time of
exclusive control of the cargoes loaded on said vessel the accident, the vessel was completely under the control of respondent
pursuant to the Memorandum of Agreement dated July 26, Pioneer Stevedoring Corporation (Pioneer, for short) as the exclusive
1975 (Exh. '2') between the third party defendant Pioneer stevedoring contractor of Aboitiz, which handled the unloading of cargoes
Stevedoring Corporation and defendant Aboitiz Shipping from the vessel of Aboitiz. It is also averred that since the crane operator was
Corporation. not an employee of Aboitiz, the latter cannot be held liable under the fellow-
servant rule.
The crane owned by the third party defendant and operated
by its crane operator Alejo Figueroa was placed alongside the Thereafter, Aboitiz, as third-party plaintiff, filed a third-party
vessel and one (1) hour after the passengers of said vessel complaint 5 against Pioneer imputing liability thereto for Anacleto Viana's
had disembarked, it started operation by unloading the death as having been allegedly caused by the negligence of the crane
cargoes from said vessel. While the crane was being operator who was an employee of Pioneer under its exclusive control and
operated, Anacleto Viana who had already disembarked from supervision.
said vessel obviously remembering that some of his cargoes
were still loaded in the vessel, went back to the vessel, and it Pioneer, in its answer to the third-party complaint, 6 raised the defenses that
was while he was pointing to the crew of the said vessel to Aboitiz had no cause of action against Pioneer considering that Aboitiz is
the place where his cargoes were loaded that the crane hit being sued by the Vianas for breach of contract of carriage to which Pioneer
him, pinning him between the side of the vessel and the is not a party; that Pioneer had observed the diligence of a good father of a
crane. He was thereafter brought to the hospital where he family both in the selection and supervision of its employees as well as in the
later expired three (3) days thereafter, on May 15, 1975, the prevention of damage or injury to anyone including the victim Anacleto
cause of his death according to the Death Certificate (Exh. Viana; that Anacleto Viana's gross negligence was the direct and proximate
"C") being "hypostatic pneumonia secondary to traumatic cause of his death; and that the filing of the third-party complaint was
fracture of the pubic bone lacerating the urinary bladder" premature by reason of the pendency of the criminal case for homicide
(See also Exh. "B"). For his hospitalization, medical, burial through reckless imprudence filed against the crane operator, Alejo Figueroa.
and other miscellaneous expenses, Anacleto's wife, herein
plaintiff, spent a total of P9,800.00 (Exhibits "E", "E-1", to "E- In a decision rendered on April 17, 1980 by the trial court, 7 Aboitiz was
5"). Anacleto Viana who was only forty (40) years old when ordered to pay the Vianas for damages incurred, and Pioneer was ordered to
he met said fateful accident (Exh. 'E') was in good health. His reimburse Aboitiz for whatever amount the latter paid the Vianas. The
average annual income as a farmer or a farm supervisor was dispositive portion of said decision provides:
400 cavans of palay annually. His parents, herein plaintiffs
Antonio and Gorgonia Viana, prior to his death had been WHEREFORE, judgment is hereby rendered in favor of the
recipient of twenty (20) cavans of palay as support or plantiffs:
P120.00 monthly. Because of Anacleto's death, plaintiffs
suffered mental anguish and extreme worry or moral
(1) ordering defendant Aboitiz Shipping Corporation to pay to
damages. For the filing of the instant case, they had to hire a
plaintiffs the sum of P12,000.00 for the death of Anacleto
lawyer for an agreed fee of ten thousand (P10,000.00)
Viana P9,800.00 as actual damages; P533,200.00 value of
pesos. 2
the 10,664 cavans of palay computed at P50.00 per cavan;
P10,000.00 as attorney's fees; F 5,000.00, value of the 100
Private respondents Vianas filed a complaint 3 for damages against petitioner cavans of palay as support for five (5) years for deceased
corporation (Aboitiz, for brevity) for breach of contract of carriage. (sic) parents, herein plaintiffs Antonio and Gorgonia Viana
computed at P50.00 per cavan; P7,200.00 as support for
TRANSPO | Ass 7|40

deceased's parents computed at P120.00 a month for five (1) Ordering defendant Aboitiz Shipping Corporation to pay
years pursuant to Art. 2206, Par. 2, of the Civil Code; the plaintiffs the sum of P12,000.00 for the death of Anacleto
P20,000.00 as moral damages, and costs; and Viana; P9,000.00 (sic) as actual damages; P533,200.00 value
of the 10,664 cavans of palay computed at P50.00 per cavan;
(2) ordering the third party defendant Pioneer Stevedoring P10,000.00 as attorney's fees; P5,000.00 value of the 100
Corporation to reimburse defendant and third party plaintiff cavans of palay as support for five (5) years for deceased's
Aboitiz Shipping Corporation the said amounts that it is parents, herein plaintiffs Antonio and Gorgonia
ordered to pay to herein plaintiffs. Viana,computed at P50.00 per cavan; P7,200.00 as support
for deceased's parents computed at P120.00 a month for five
Both Aboitiz and Pioneer filed separate motions for reconsideration wherein years pursuant to Art. 2206, Par. 2, of the Civil Code;
they similarly raised the trial court's failure to declare that Anacleto Viana P20,000.00 as moral damages, and costs; and
acted with gross negligence despite the overwhelming evidence presented in
support thereof. In addition, Aboitiz alleged, in opposition to Pioneer's (2) Absolving third-party defendant Pioneer Stevedoring
motion, that under the memorandum of agreement the liability of Pioneer as Corporation for (sic) any liability for the death of Anacleto
contractor is automatic for any damages or losses whatsoever occasioned by Viana the passenger of M/V Antonia owned by defendant
and arising from the operation of its arrastre and stevedoring service. third party plaintiff Aboitiz Shipping Corporation it appearing
that the negligence of its crane operator has not been
In an order dated October 27, 1982, 8 the trial court absolved Pioneer from established therein.
liability for failure of the Vianas and Aboitiz to preponderantly establish a
case of negligence against the crane operator which the court a quo ruled is Not satisfied with the modified judgment of the trial court, Aboitiz appealed
never presumed, aside from the fact that the memorandum of agreement the same to respondent Court of Appeals which affirmed the findings of of
supposedly refers only to Pioneer's liability in case of loss or damage to the trial court except as to the amount of damages awarded to the Vianas.
goods handled by it but not in the case of personal injuries, and, finally that
Aboitiz cannot properly invoke the fellow-servant rule simply because its Hence, this petition wherein petitioner Aboitiz postulates that respondent
liability stems from a breach of contract of carriage. The dispositive portion of court erred:
said order reads:
(A) In holding that the doctrine laid down by this honorable
WHEREFORE, judgment is hereby modified insofar as third Court in La Mallorca vs. Court of Appeals, et al. (17 SCRA
party defendant Pioneer Stevedoring Corporation is 739, July 27, 1966) is applicable to the case in the face of the
concerned rendered in favor of the plaintiffs-,: undisputable fact that the factual situation under the La
Mallorca case is radically different from the facts obtaining in
this case;

(B) In holding petitioner liable for damages in the face of the


finding of the court a quo and confirmed by the Honorable
respondent court of Appeals that the deceased, Anacleto
Viana was guilty of contributory negligence, which, We
respectfully submit contributory negligence was the
proximate cause of his death; specifically the honorable
respondent Court of Appeals failed to apply Art. 1762 of the
New Civil Code;
TRANSPO | Ass 7|41

(C) In the alternative assuming the holding of the Honorable It has been recognized as a rule that the relation of carrier
respondent Court of Appears that petitioner may be legally and passenger does not cease at the moment the passenger
condemned to pay damages to the private respondents we alights from the carrier's vehicle at a place selected by the
respectfully submit that it committed a reversible error when carrier at the point of destination, but continues until the
it dismissed petitioner's third party complaint against private passenger has had a reasonable time or a reasonable
respondent Pioneer Stevedoring Corporation instead of opportunity to leave the carrier's premises. And, what is a
compelling the latter to reimburse the petitioner for whatever reasonable time or a reasonable delay within this rule is to be
damages it may be compelled to pay to the private determined from all the circumstances. Thus, a person who,
respondents Vianas. 9 after alighting from a train, walks along the station platform
is considered still a passenger. So also, where a passenger
At threshold, it is to be observed that both the trial court and respondent has alighted at his destination and is proceeding by the usual
Court of Appeals found the victim Anacleto Viana guilty of contributory way to leave the company's premises, but before actually
negligence, but holding that it was the negligence of Aboitiz in prematurely doing so is halted by the report that his brother, a fellow
turning over the vessel to the arrastre operator for the unloading of cargoes passenger, has been shot, and he in good faith and without
which was the direct, immediate and proximate cause of the victim's death. intent of engaging in the difficulty, returns to relieve his
brother, he is deemed reasonably and necessarily delayed
I. Petitioner contends that since one (1) hour had already elapsed from the and thus continues to be a passenger entitled as such to the
time Anacleto Viana disembarked from the vessel and that he was given protection of the railroad company and its agents.
more than ample opportunity to unload his cargoes prior to the operation of
the crane, his presence on the vessel was no longer reasonable e and he In the present case, the father returned to the bus to get one
consequently ceased to be a passenger. Corollarily, it insists that the doctrine of his baggages which was not unloaded when they alighted
in La Mallorca vs. Court of Appeals, et al. 10 is not applicable to the case at from the bus. Racquel, the child that she was, must have
bar. followed the father. However, although the father was still on
the running board of the bus waiting for the conductor to
The rule is that the relation of carrier and passenger continues until the hand him the bag or bayong, the bus started to run, so that
passenger has been landed at the port of destination and has left the vessel even he (the father) had to jump down from the moving
owner's dock or premises. 11 Once created, the relationship will not ordinarily vehicle. It was at this instance that the child, who must be
terminate until the passenger has, after reaching his destination, safely near the bus, was run over and killed. In the circumstances,
alighted from the carrier's conveyance or had a reasonable opportunity to it cannot be claimed that the carrier's agent had exercised
leave the carrier's premises. All persons who remain on the premises a the 'utmost diligence' of a 'very cautious person' required by
reasonable time after leaving the conveyance are to be deemed passengers, Article 1755 of the Civil Code to be observed by a common
and what is a reasonable time or a reasonable delay within this rule is to be carrier in the discharge of its obligation to transport safely its
determined from all the circumstances, and includes a reasonable time to see passengers. ... The presence of said passengers near the bus
after his baggage and prepare for his departure. 12 The carrier-passenger was not unreasonable and they are, therefore, to be
relationship is not terminated merely by the fact that the person transported considered still as passengers of the carrier, entitled to the
has been carried to his destination if, for example, such person remains in protection under their contract of carriage. 14
the carrier's premises to claim his baggage. 13
It is apparent from the foregoing that what prompted the Court to rule as it
It was in accordance with this rationale that the doctrine in the aforesaid case did in said case is the fact of the passenger's reasonable presence within the
of La Mallorca was enunciated, to wit: carrier's premises. That reasonableness of time should be made to depend on
the attending circumstances of the case, such as the kind of common carrier,
TRANSPO | Ass 7|42

the nature of its business, the customs of the place, and so forth, and operations shall start only after that time. Consequently, under the foregoing
therefore precludes a consideration of the time element per se without taking circumstances, the victim Anacleto Viana is still deemed a passenger of said
into account such other factors. It is thus of no moment whether in the cited carrier at the time of his tragic death.
case of La Mallorca there was no appreciable interregnum for the passenger
therein to leave the carrier's premises whereas in the case at bar, an interval II. Under the law, common carriers are, from the nature of their business and
of one (1) hour had elapsed before the victim met the accident. The primary for reasons of public policy, bound to observe extraordinary diligence in the
factor to be considered is the existence of a reasonable cause as will justify vigilance over the goods and for the safety of the passengers transported by
the presence of the victim on or near the petitioner's vessel. We believe there them, according to all the circumstances of each case. 15 More particularly, a
exists such a justifiable cause. common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious
It is of common knowledge that, by the very nature of petitioner's business persons, with a due regard for all the circumstances. 16 Thus, where a
as a shipper, the passengers of vessels are allotted a longer period of time to passenger dies or is injured, the common carrier is presumed to have been at
disembark from the ship than other common carriers such as a passenger fault or to have acted negligently. 17 This gives rise to an action for breach of
bus. With respect to the bulk of cargoes and the number of passengers it can contract of carriage where all that is required of plaintiff is to prove the
load, such vessels are capable of accommodating a bigger volume of both as existence of the contract of carriage and its non-performance by the carrier,
compared to the capacity of a regular commuter bus. Consequently, a ship that is, the failure of the carrier to carry the passenger safely to his
passenger will need at least an hour as is the usual practice, to disembark destination, 18 which, in the instant case, necessarily includes its failure to
from the vessel and claim his baggage whereas a bus passenger can easily safeguard its passenger with extraordinary diligence while such relation
get off the bus and retrieve his luggage in a very short period of time. Verily, subsists.
petitioner cannot categorically claim, through the bare expedient of
comparing the period of time entailed in getting the passenger's cargoes, The presumption is, therefore, established by law that in case of a
that the ruling in La Mallorca is inapplicable to the case at bar. On the passenger's death or injury the operator of the vessel was at fault or
contrary, if we are to apply the doctrine enunciated therein to the instant negligent, having failed to exercise extraordinary diligence, and it is
petition, we cannot in reason doubt that the victim Anacleto Viana was still a incumbent upon it to rebut the same. This is in consonance with the avowed
passenger at the time of the incident. When the accident occurred, the victim policy of the State to afford full protection to the passengers of common
was in the act of unloading his cargoes, which he had every right to do, from carriers which can be carried out only by imposing a stringent statutory
petitioner's vessel. As earlier stated, a carrier is duty bound not only to bring obligation upon the latter. Concomitantly, this Court has likewise adopted a
its passengers safely to their destination but also to afford them a reasonable rigid posture in the application of the law by exacting the highest degree of
time to claim their baggage. care and diligence from common carriers, bearing utmost in mind the welfare
of the passengers who often become hapless victims of indifferent and profit-
It is not definitely shown that one (1) hour prior to the incident, the victim oriented carriers. We cannot in reason deny that petitioner failed to rebut the
had already disembarked from the vessel. Petitioner failed to prove this. presumption against it. Under the facts obtaining in the present case, it
What is clear to us is that at the time the victim was taking his cargoes, the cannot be gainsaid that petitioner had inadequately complied with the
vessel had already docked an hour earlier. In consonance with common required degree of diligence to prevent the accident from happening.
shipping procedure as to the minimum time of one (1) hour allowed for the
passengers to disembark, it may be presumed that the victim had just gotten As found by the Court of Appeals, the evidence does not show that there was
off the vessel when he went to retrieve his baggage. Yet, even if he had a cordon of drums around the perimeter of the crane, as claimed by
already disembarked an hour earlier, his presence in petitioner's premises petitioner. It also adverted to the fact that the alleged presence of visible
was not without cause. The victim had to claim his baggage which was warning signs in the vicinity was disputable and not indubitably established.
possible only one (1) hour after the vessel arrived since it was admittedly Thus, we are not inclined to accept petitioner's explanation that the victim
standard procedure in the case of petitioner's vessels that the unloading and other passengers were sufficiently warned that merely venturing into the
TRANSPO | Ass 7|43

area in question was fraught with serious peril. Definitely, even assuming the failure of Aboitiz to exercise extraordinary diligence for the safety of its
existence of the supposed cordon of drums loosely placed around the passenger is the rationale for our finding on its liability.
unloading area and the guard's admonitions against entry therein, these
were at most insufficient precautions which pale into insignificance if WHEREFORE, the petition is DENIED and the judgment appealed from is
considered vis-a-vis the gravity of the danger to which the deceased was hereby AFFIRMED in toto.
exposed. There is no showing that petitioner was extraordinarily diligent in
requiring or seeing to it that said precautionary measures were strictly and SO ORDERED.
actually enforced to subserve their purpose of preventing entry into the
forbidden area. By no stretch of liberal evaluation can such perfunctory acts
approximate the "utmost diligence of very cautious persons" to be exercised
"as far as human care and foresight can provide" which is required by law of
common carriers with respect to their passengers.

While the victim was admittedly contributorily negligent, still petitioner's


aforesaid failure to exercise extraordinary diligence was the proximate and
direct cause of, because it could definitely have prevented, the former's
death. Moreover, in paragraph 5.6 of its petition, at bar, 19 petitioner has
expressly conceded the factual finding of respondent Court of Appeals that
petitioner did not present sufficient evidence in support of its submission that
the deceased Anacleto Viana was guilty of gross negligence. Petitioner cannot
now be heard to claim otherwise.

No excepting circumstance being present, we are likewise bound by


respondent court's declaration that there was no negligence on the part of
Pioneer Stevedoring Corporation, a confirmation of the trial court's finding to
that effect, hence our conformity to Pioneer's being absolved of any liability.

As correctly observed by both courts, Aboitiz joined Pioneer in proving the


alleged gross negligence of the victim, hence its present contention that the
death of the passenger was due to the negligence of the crane operator
cannot be sustained both on grounds, of estoppel and for lack of evidence on
its present theory. Even in its answer filed in the court below it readily
alleged that Pioneer had taken the necessary safeguards insofar as its
unloading operations were concerned, a fact which appears to have been
accepted by the plaintiff therein by not impleading Pioneer as a defendant,
and likewise inceptively by Aboitiz by filing its third-party complaint only after
ten (10) months from the institution of the suit against it. Parenthetically,
Pioneer is not within the ambit of the rule on extraordinary diligence required
of, and the corresponding presumption of negligence foisted on, common
carriers like Aboitiz. This, of course, does not detract from what we have said
that no negligence can be imputed to Pioneer but, that on the contrary, the
TRANSPO | Ass 7|44

On September 30, 1952, Sy filed action against the Malate Taxicab & Garage,
Inc., based upon a contract of carriage, to recover the sums of P7,200 as
actual or compensatory damages, P20,000 as moral damages, P15,000 as
nominal and exemplary damages, and P3,000 a attorney's fees. On October
2, 1952, a copy of the complaint was served on and received by the
defendant, but the latter filed its answer only on October 20, 1952, wherein
it alleged that the collision subject of the complaint was not due to the
negligence of its driver but to that of Sgt. Jesus Dequito, the driver of the
army wagon; and, by way of counterclaim, sought to recover the sum of
P1,000 as damages caused by the alleged malicious and frivolous action filed
against it.
G.R. No. L-8937 November 29, 1957

The record reveals that upon plaintiff's motion filed on October 23, 1952, the
OLEGARIO BRITO SY, plaintiff-appellee,
lower court ordered on October 25, 1952 that the answer which was filed by
vs.
defendant out of time be stricken out, and declared the Malate Taxicab &
MALATE TAXI CAB & GARAGE, INC., defendant-appelant;
Garage, Inc. in default. Thereafter, on October 30, 1952, plaintiff presented
his evidence, and on November 20, 1952 judgment was rendered awarding
MALATE TAXICAB & GARAGE, INC., third-party plaintiff-appellant, plaintiff the sum of P14.000 as actual, compensatory, moral, nominal and
vs. exemplary damages including attorney's fees and costs, with interest at the
JESUS DEQUITO Y DUPY, third-party defendant-appellee. legal rate from the filing of the action. Defendant then filed a motion on
December 17, 1952, for relief from the order of default and for new trial,
Paredes, Gaw and Acevedo for appellee. which was granted. Hence, plaintiff filed his reply to defendant's answer and
Diaz and Baizas for appellant. counterelaim, and by leave of court, the latter filed on February 24, 1953 a
third-party complaint against Sgt. Jesus Dequito alleging that the cause of
ENDENCIA, J.: the collision between the taxicab and the army wagon was the negligence of
the army sergeant, and praying that whatever amount the court may assess
On June 26, 1952, at Dewey Boulevard in front of the Selecta Restaurant, against it in the action filed by plaintiff, be paid to said third-party plaintiff,
Olegario Brito Sy engaged a taxicab bearing plate No. Taxi-1130, owned and plus an additional amount of P1,000 representing attorney's fees. It appears,
operated by Malate Taxicab and Garage, Inc. and driven by Catalino Ermino, however, that the summons and copy of the third-party complaint were never
to take him to his place of business at Dencia's Restaurant on the Escolta served upon third-party defendant Dequito in view of his continued
where he was the general manager. Upon reaching the Rizal Monument he assignment from place to place in connection with his army duties, and for
told the driver to turn to the right, but the latter did not heed him and this reason the main case was set for trial on May 10, 1953, obviously for the
instead countered that they better pass along Katigbak Drive. At the sole purpose of disposing of the issue arising from plaintiffs complaint. On
intersection of Dewey Bolevard and Katigbak Drive, the taxi collided with an the day of the trial, defendant failed to appear, whereupon plaintiff presented
army wagon with plate No. TPI-695 driven by Sgt. Jesus De quito, as a result his evidence, and judgment was rendered against the defendant in the total
of which Olegario Brito Sy was jarred, jammed and jolted. He was taken to sum of P4,200 representing actual, compensatory and moral damages, as
the Santa Isabel Hospital suffering from bruises and contusions as well as well as attorney's fees, with interest at the legal rate from the filing of the
fractured right leg. Thereafter he was transferred to the Gonzales Orthopedic action, plus costs of suit. Aga nst said judgment defendant appealed to the
Clinic and was accordingly operated on. He spent some P2,266.45 for medical Court of Appeals and assigned in its brief two errors of the lower court,
bills and hospitalization. namely:
TRANSPO | Ass 7|45

1. The trial court erred in not finding that the third-party complaint pertinent, provisions of the new Civil Code under the heading Common
involves a prejudicial question, and therefore, the main complaint Carriers, are the following:
cannot be decided until the third-party complaint is decided.
ART. 1733. Common carriers, from the nature of their business and
2. The trial court erred in not deciding or making an express finding for reason of public policy, are bound to observe extraordinary
as to whether the defendant appellant Malate Taxicab & Garage, Inc. diligence in the vigilance over the goods and for the safety of the
was responsible for the collision, and hence, civilly responsible to the passengers transported by them, according to all the circumstances
plaintiff-appellee. of each case.

Finding the quoted assignment of errors as involving a purely question of law, Such extraordinary diligence in the vigilance over the goods is further
the Court of Appeals, by virtue of the provisions of section 17, paragraph 6 of expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while
the judiciary Act of 1948, as amended, certified the case to this Court for the extraordinary diligence for the safety of the passengers is further
adjudication, in its Resolution of February 7, 1955. set forth in articles 1755 and 1756.

We find no merit in the first assignment of error that the third-party ART. 1755. A common carrier is bound to carry the passengers to
complaint is a pre-judicial question. As enunciated by this Court in Berbari vs. safety as far as human care and foresight can provide, using the
Concepcion, 40 Phil. 837, "Pre-judicial question in understood in law to be utmost diligence of very cautious persons, with a due regard for all
that which precedes the criminal action, or that which requires a decision the circumstances.
before final judgment is rendered in the principal action with which said
question is closely connected. Not all previous questions are pre-judicial ART. 1756. In case of death of or injuries to passengers, common
questions are necessarily previous", although all pre-judicial questions are carriers are presumed to have been at fault or to have
necessarily previous." In the present case, the third-party complaint is not a acted negligently, unless they prove that they observed
pre-judicial question, as the issue in the main action is not entirely extraordinary diligence as prescribed in articles 1733 and 1755.
dependent upon those in the third-party complaint; on the contrary, it is the (Emphasis supplied.)
third-party complaint that is dependent upon the main case at least in the
amount of damages which defendant appellant seeks to be reimbursed in its Evidently, under these provisions of law, the court need not make an express
third-party complaint. Furthermore, the complaint is based on a contractual finding of fault or negligence on the part of the defendant appellant in order
obligation of transportation of passenger which defendant-appellant failed to to hold it responsible to pay the damages sought for by the plaintiff, for the
carry out, and the action is entirely different and independent from that in action initiated therefor is based on a contract of carriage and not on tort.
the third-party complaint which is based an alleged tortious act committed by When plaintiff rode on defendant-appellant's taxicab, the latter assumed the
the third-party defendant Sgt. Dequito. The main case, therefore, is entirely express obligation to transport him to his destination safely, and to observe
severable and may be litigated independently. Moreover, whatever the extraordinary diligence with a due regard for all the circumstances, and any
outcome of the third-party complaint might be would not in any way affect or injury that might be suffered by the passenger is right away attributable to
alter the contractual liability of the appellant to plaintiff. If the collision was the fault or negligence of the carrier (Article 1756, supra). This is an
due to the negligence of the third-party defendant, as alleged, then exception to the general rule that negligence must be proved, and it was
defendant appellant may file a separate civil action for damages based therefore incumbent upon the carrier to prove that it has exercised
on tort ex-delicto or upon quasi-delict, as the case may be. extraordinary diligence as prescribed in Articles 1733 and 1755 of the new
Civil Code. It is noteworthy, however, that at the hearing in the lower court
Coming to the second assignment of error that the lower court erred in not defendant-appellant failed to appear and has not presented any evidence at
making an express findings as to whether defendant appellant was all to overcome and overwhelm the presumption of negligence imposed upon
responsible for the collision, we find the same to be unjustified. The it by law; hence, there was no need for the lower court to make an express
TRANSPO | Ass 7|46

finding thereon in view of the provisions of the aforequoted Article 1756 of This is a petition for review on certiorari assailing the Decision 1 of the Court
the new Civil Code. of Appeals which affirmed in toto the decision 2 of the Regional Trial Court of
Pasig City, Branch 164 in Civil Case No. 60985 filed by the respondent for
Wherefore, the decision of the lower court is hereby affirmed with cost damages.
against the appellant.
The Case for the Respondent

Respondent Andion Fernandez is an acclaimed soprano here in the Philippines


and abroad. At the time of the incident, she was availing an educational grant
from the Federal Republic of Germany, pursuing a Masters Degree in Music
majoring in Voice.3

She was invited to sing before the King and Queen of Malaysia on February 3
and 4, 1991. For this singing engagement, an airline passage ticket was
purchased from petitioner Singapore Airlines which would transport her to
Manila from Frankfurt, Germany on January 28, 1991. From Manila, she
would proceed to Malaysia on the next day.4 It was necessary for the
respondent to pass by Manila in order to gather her wardrobe; and to
rehearse and coordinate with her pianist her repertoire for the aforesaid
performance.

The petitioner issued the respondent a Singapore Airlines ticket for Flight No.
SQ 27, leaving Frankfurt, Germany on January 27, 1991 bound for Singapore
with onward connections from Singapore to Manila. Flight No. SQ 27 was
scheduled to leave Frankfurt at 1:45 in the afternoon of January 27, 1991,
arriving at Singapore at 8:50 in the morning of January 28, 1991. The
connecting flight from Singapore to Manila, Flight No. SQ 72, was leaving
Singapore at 11:00 in the morning of January 28, 1991, arriving in Manila at
2:20 in the afternoon of the same day.5
G.R. No. 142305 December 10, 2003
On January 27, 1991, Flight No. SQ 27 left Frankfurt but arrived in Singapore
SINGAPORE AIRLINES LIMITED, petitioner, two hours late or at about 11:00 in the morning of January 28, 1991. By
vs. then, the aircraft bound for Manila had left as scheduled, leaving the
ANDION FERNANDEZ, respondent. respondent and about 25 other passengers stranded in the Changi Airport in
Singapore.6
DECISION
Upon disembarkation at Singapore, the respondent approached the transit
CALLEJO, SR., J.: counter who referred her to the nightstop counter and told the lady employee
thereat that it was important for her to reach Manila on that day, January 28,
1991. The lady employee told her that there were no more flights to Manila
for that day and that respondent had no choice but to stay in Singapore.
TRANSPO | Ass 7|47

Upon respondents persistence, she was told that she can actually fly to Hong 1. FIFTY THOUSAND (P50,000.00) PESOS as compensatory or actual
Kong going to Manila but since her ticket was non-transferable, she would damages;
have to pay for the ticket. The respondent could not accept the offer because
she had no money to pay for it. 7 Her pleas for the respondent to make 2. TWO HUNDRED and FIFTY THOUSAND (P250,000.00) PESOS as
arrangements to transport her to Manila were unheeded. 8 moral damages considering plaintiffs professional standing in the
field of culture at home and abroad;
The respondent then requested the lady employee to use their phone to
make a call to Manila. Over the employees reluctance, the respondent 3. ONE HUNDRED THOUSAND (P100,000.00) PESOS as exemplary
telephoned her mother to inform the latter that she missed the connecting damages;
flight. The respondent was able to contact a family friend who picked her up
from the airport for her overnight stay in Singapore.9 4. SEVENTY-FIVE THOUSAND (P75,000.00) PESOS as attorneys fees;
and
The next day, after being brought back to the airport, the respondent
proceeded to petitioners counter which says: "Immediate Attention To 5. To pay the costs of suit.
Passengers with Immediate Booking." There were four or five passengers in
line. The respondent approached petitioners male employee at the counter to SO ORDERED.13
make arrangements for immediate booking only to be told: "Cant you see I
am doing something." She explained her predicament but the male employee
The petitioner appealed the decision to the Court of Appeals.
uncaringly retorted: "Its your problem, not ours." 10

On June 10, 1998, the CA promulgated the assailed decision finding no


The respondent never made it to Manila and was forced to take a direct flight
reversible error in the appealed decision of the trial court. 14
from Singapore to Malaysia on January 29, 1991, through the efforts of her
mother and travel agency in Manila. Her mother also had to travel to
Forthwith, the petitioner filed the instant petition for review, raising the
Malaysia bringing with her respondents wardrobe and personal things
following errors:
needed for the performance that caused them to incur an expense of about
P50,000.11
I
As a result of this incident, the respondents performance before the Royal
Family of Malaysia was below par. Because of the rude and unkind treatment THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING IN TOTO THE
she received from the petitioners personnel in Singapore, the respondent DECISION OF THE TRIAL COURT THAT AWARDED DAMAGES TO RESPONDENT
was engulfed with fear, anxiety, humiliation and embarrassment causing her FOR THE ALLEGED FAILURE OF THE PETITIONER TO EXERCISE
to suffer mental fatigue and skin rashes. She was thereby compelled to seek EXTRAORDINARY DILIGENCE.
immediate medical attention upon her return to Manila for "acute urticaria." 12
II
On June 15, 1993, the RTC rendered a decision with the following dispositive
portion: THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
PETITIONER ACTED IN BAD FAITH.
ACCORDINGLY and as prayed for, defendant Singapore Airlines is ordered to
pay herein plaintiff Andion H. Fernandez the sum of: III
TRANSPO | Ass 7|48

THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE The contract of air carriage is a peculiar one. Imbued with public interest, the
PETITIONERS COUNTERCLAIMS.15 law requires common carriers to carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence of very cautious
The petitioner assails the award of damages contending that it exercised the persons with due regard for all the circumstances. 20 In an action for breach of
extraordinary diligence required by law under the given circumstances. The contract of carriage, the aggrieved party does not have to prove that the
delay of Flight No. SQ 27 from Frankfurt to Singapore on January 28, 1991 common carrier was at fault or was negligent. All that is necessary to prove
for more than two hours was due to a fortuitous event and beyond is the existence of the contract and the fact of its non-performance by the
petitioners control. Inclement weather prevented the petitioners plane carrier.21
coming from Copenhagen, Denmark to arrive in Frankfurt on time on January
27, 1991. The plane could not take off from the airport as the place was In the case at bar, it is undisputed that the respondent carried a confirmed
shrouded with fog. This delay caused a "snowball effect" whereby the other ticket for the two-legged trip from Frankfurt to Manila: 1) Frankfurt-
flights were consequently delayed. The plane carrying the respondent arrived Singapore; and 2) Singapore-Manila. In her contract of carriage with the
in Singapore two (2) hours behind schedule. 16 The delay was even petitioner, the respondent certainly expected that she would fly to Manila on
compounded when the plane could not travel the normal route which was Flight No. SQ 72 on January 28, 1991. Since the petitioner did not transport
through the Middle East due to the raging Gulf War at that time. It had to the respondent as covenanted by it on said terms, the petitioner clearly
pass through the restricted Russian airspace which was more congested. 17 breached its contract of carriage with the respondent. The respondent had
every right to sue the petitioner for this breach. The defense that the delay
Under these circumstances, petitioner therefore alleged that it cannot be was due to fortuitous events and beyond petitioners control is unavailing. In
faulted for the delay in arriving in Singapore on January 28, 1991 and PAL vs. CA,22 we held that:
causing the respondent to miss her connecting flight to Manila.
.... Undisputably, PALs diversion of its flight due to inclement weather was a
The petitioner further contends that it could not also be held in bad faith fortuitous event. Nonetheless, such occurrence did not terminate PALs
because its personnel did their best to look after the needs and interests of contract with its passengers. Being in the business of air carriage and the
the passengers including the respondent. Because the respondent and the sole one to operate in the country, PAL is deemed to be equipped to deal with
other 25 passengers missed their connecting flight to Manila, the petitioner situations as in the case at bar. What we said in one case once again must be
automatically booked them to the flight the next day and gave them free stressed, i.e., the relation of carrier and passenger continues until the latter
hotel accommodations for the night. It was respondent who did not take has been landed at the port of destination and has left the carriers premises.
petitioners offer and opted to stay with a family friend in Singapore. Hence, PAL necessarily would still have to exercise extraordinary diligence in
safeguarding the comfort, convenience and safety of its stranded passengers
The petitioner also alleges that the action of the respondent was baseless and until they have reached their final destination...
it tarnished its good name and image earned through the years for which, it
was entitled to damages in the amount of P1,000,000; exemplary damages ...
of P500,000; and attorneys fees also in the amount of P500,000.18
"...If the cause of non-fulfillment of the contract is due to a fortuitous event,
The petition is barren of merit. it has to be the sole and only cause (Art. 1755 C.C., Art. 1733 C.C.). Since
part of the failure to comply with the obligation of common carrier to deliver
When an airline issues a ticket to a passenger, confirmed for a particular its passengers safely to their destination lay in the defendants failure to
flight on a certain date, a contract of carriage arises. The passenger then has provide comfort and convenience to its stranded passengers using
every right to expect that he be transported on that flight and on that date. If extraordinary diligence, the cause of non-fulfillment is not solely and
he does not, then the carrier opens itself to a suit for a breach of contract of exclusively due to fortuitous event, but due to something which defendant
carriage.19 airline could have prevented, defendant becomes liable to plaintiff."
TRANSPO | Ass 7|49

Indeed, in the instant case, petitioner was not without recourse to enable it take the trouble of informing plaintiff, among its other passengers of such a
to fulfill its obligation to transport the respondent safely as scheduled as far delay and that in such a case, the usual practice of defendant airline will be
as human care and foresight can provide to her destination. Tagged as a that they have to stay overnight at their connecting airport; and much less
premiere airline as it claims to be and with the complexities of air travel, it did it inquire from the plaintiff and the other 25 passengers bound for Manila
was certainly well-equipped to be able to foresee and deal with such whether they are amenable to stay overnight in Singapore and to take the
situation. The petitioners indifference and negligence by its absence and connecting flight to Manila the next day. Such information should have been
insensitivity was exposed by the trial court, thus: given and inquiries made in Frankfurt because even the defendant airlines
manual provides that in case of urgency to reach his or her destination on
(a) Under Section 9.1 of its Traffic Manual (Exhibit 4) "flights can be the same date, the head office of defendant in Singapore must be informed
delayed to await the uplift of connecting cargo and passengers by telephone or telefax so as the latter may make certain arrangements with
arriving on a late in-bound flight" As adverted to by the trial court, other airlines in Frankfurt to bring such a passenger with urgent business to
"Flight SQ-27/28 maybe delayed for about half an hour to transfer Singapore in such a manner that the latter can catch up with her connecting
plaintiff to her connecting flight. As pointed out above, delay is flight such as S-27/28 without spending the night in Singapore 23
normal in commercial air transportation" (RTC Decision, p. 22); or
The respondent was not remiss in conveying her apprehension about the
(b) Petitioner airlines could have carried her on one of its flights delay of the flight when she was still in Frankfurt. Upon the assurance of
bound for Hongkong and arranged for a connecting flight from petitioners personnel in Frankfurt that she will be transported to Manila on
Hongkong to Manila all on the same date. But then the airline the same date, she had every right to expect that obligation fulfilled. She
personnel who informed her of such possibility told her that she has testified, to wit:
to pay for that flight. Regrettably, respondent did not have sufficient
funds to pay for it. (TSN, 30 March 1992, pp.8-9; RTC Decision, pp. Q: Now, since you were late, when the plane that arrived from Frankfurt was
22-23) Knowing the predicament of the respondent, petitioner did late, did you not make arrangements so that your flight from Singapore to
not offer to shoulder the cost of the ticket for that flight; or Manila would be adjusted?

(c) As noted by the trial court from the account of petitioners A: I asked the lady at the ticket counter, the one who gave the boarding pass
witness, Bob Khkimyong, that "a passenger such as the plaintiff could in Frankfurt and I asked her, "Since my flight going to Singapore would be
have been accommodated in another international airline such as late, what would happen to my Singapore-Manila flight?" and then she said,
Lufthansa to bring the plaintiff to Singapore early enough from "Dont worry, Singapore Airlines would be responsible to bring you to Manila
Frankfurt provided that there was prior communication from that on the same date." And then they have informed the name of the officer, or
station to enable her to catch the connecting flight to Manila because whatever, that our flight is going to be late.24
of the urgency of her business in Manila(RTC Decision, p. 23)
When a passenger contracts for a specific flight, he has a purpose in making
The petitioners diligence in communicating to its passengers the that choice which must be respected. This choice, once exercised, must not
consequences of the delay in their flights was wanting. As elucidated by the be impaired by a breach on the part of the airline without the latter incurring
trial court: any liability.25 For petitioners failure to bring the respondent to her
destination, as scheduled, we find the petitioner clearly liable for the breach
It maybe that delay in the take off and arrival of commercial aircraft could of its contract of carriage with the respondent.
not be avoided and may be caused by diverse factors such as those testified
to by defendants pilot. However, knowing fully well that even before the We are convinced that the petitioner acted in bad faith.1wphi1 Bad faith
plaintiff boarded defendants Jumbo aircraft in Frankfurt bound for Singapore, means a breach of known duty through some motive of interest or ill will.
it has already incurred a delay of two hours. Nevertheless, defendant did not Self-enrichment or fraternal interest, and not personal ill will, may well have
TRANSPO | Ass 7|50

been the motive; but it is malice nevertheless. 26 Bad faith was imputed by Article 2232 of the Civil Code provides that in a contractual or quasi-
the trial court when it found that the petitioners employees at the Singapore contractual relationship, exemplary damages may be awarded only if the
airport did not accord the respondent the attention and treatment allegedly defendant had acted in a "wanton, fraudulent, reckless, oppressive or
warranted under the circumstances. The lady employee at the counter was malevolent manner." In this case, petitioners employees acted in a wanton,
unkind and of no help to her. The respondent further alleged that without her oppressive or malevolent manner. The award of exemplary damages is,
threats of suing the company, she was not allowed to use the companys therefore, warranted in this case.
phone to make long distance calls to her mother in Manila. The male
employee at the counter where it says: "Immediate Attention to Passengers WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is
with Immediate Booking" was rude to her when he curtly retorted that he AFFIRMED.
was busy attending to other passengers in line. The trial court concluded that
this inattentiveness and rudeness of petitioners personnel to respondents SO ORDERED.
plight was gross enough amounting to bad faith. This is a finding that is
generally binding upon the Court which we find no reason to disturb.

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