THIRD DIVISION

[G.R. No. 122308. July 8, 1997]

PURITA S. MAPA, CARMINA S. MAPA and CORNELIO P.

MAPA, petitioners, vs. COURT OF APPEALS and TRANS-
WORLD AIRLINES INC., respondents.

DECISION
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, which [1]

provides as follows:

ARTICLE 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 affirming the 24 July 1992
[2]

Order of the Regional Trial Court of Quezon City, Branch 102, which
dismissed Civil Case No. Q-91-9620 on the ground of lack of jurisdiction in
[3]

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 Bangkok, Thailand, now presently
enrolled at the Boston University where she is majoring in communication.

Plaintiffs Mapa entered into contract of air transportation with defendant TWA as
evidenced by TWA ticket Nos. 015:9475:153:304 and 015:9475:153:305,
purchased in Bangkok, Thailand. Said TWA tickets are for Los Angeles-New
York-Boston-St. Louis-Chicago ....

Domicile of carrier TWA is Kansas City, Missouri, USA. Its principal place of
business is Kansas City, Missouri, USA. TWAs place of business through which
the contracts were made is Bangkok, Thailand.The place of destination is
Chicago, USA.

On August 10, 1990, plaintiffs Carmina and Purita left Manila on board PAL
flight No. 104 for Los Angeles. Carmina was to commence schooling and thus
was accompanied by Purita to assist her in settling down at the University.

They arrived in Los Angeles on the same date and stayed there until August 14,
1990 when they left for New York City.

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 August 27, 1990, plaintiffs Purita and Carmina S. Mapa departed for Boston,
taking a connecting flight on TWAs carrier, TW 0901, from JFK Airport, New
York, to Bostons Logan Airport, checking in seven (7) pieces of luggage at the
TWA counter in the JFK Airport. The seven baggages were received by a porter
who issued seven TWA baggage receipts numbered 17-8270, 71, 72, 73, 74, 75,
and 76therefor.

From the entrance gate of the terminal building, plaintiffs Purita and Carmina
proceeded to TWAs ticket counter and presented their confirmed TWA tickets
numbered 015:9475:153:304 and 015:9475:153:305 with a 3:00 p.m. departure
time. They were issued their boarding passes and were instructed to proceed to
gate 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 wrong gate because their
flight was boarding at gate 1. Upon hearing this, plaintiffs rushed to gate 1 which
was in another building terminal. At gate 1, they were told by a TWA ground
stewardess that flight 901 had just departed. However, they were consoled that
another TWA flight was leaving for Boston after 30 minutes and plaintiffs could
use the same boarding pass for the next flight. At around 3:15 p.m., plaintiffs
Purita and Carmina were able to board the next flight.However, the plane was not
immediately cleared for take off on account of a thunderstorm. The passengers
were instructed to stay inside the aircraft until 6:00 p.m. when the plane finally
left for Boston.

Upon arriving in Boston, plaintiffs Purita and Carmina proceeded to the carousel
to claim their baggages and found only three out of the seven they checked in, to
wit: one Samsonite on the carousel, another Samsonite lying on the floor near the
carousel and a third baggage, an American Tourister, inside the unclaimed
baggage office. Plaintiffs immediately reported the loss of their four baggages to
the TWA Baggage Office at Logan Airport. TWAs representative confidently
assured them that their baggages would be located within 24 hours and not more
than 48 hours.

On September 2, 1990, plaintiffs received a letter from TWA, signed by Mr. J.A.
Butler, Customer Relations-Baggage Service, apologizing for TWAs failure to
locate the missing luggage and requesting plaintiffs to accomplish a passenger
property questionnaire to facilitate a further intensive and computerized search for
the lost luggage. Plaintiffs duly accomplished the passenger property
questionnaire, taking pains to write down in detail the contents of each missing
baggage. The total value of the lost items amounted to $11, 283.79.

On September 20, 1990, plaintiffs counsel wrote TWA thru its General Sales
Manager in the Philippines, Daniel Tuason, with office address at Ground Floor,
Saville Building, Sen. Gil J. Puyat Avenue corner Paseo de Roxas, Makati, Metro
Manila demanding indemnification for the grave damage and injury suffered by
the plaintiffs.

TWA again assured plaintiffs that intensive search was being conducted.

On October 8, 1990, TWA offered to amicably settle the case by giving plaintiffs-
appellants two options: (a) transportation credit for future TWA travel or (b) cash
settlement. Five months lapsed without any result on TWAs intensive search.

On January 3, 1991, plaintiffs-appellants opted for transportation credit for future

TWA travel.

On January 11, 1991, TWA disregarded plaintiffs option and unilaterally declared
the payment of $2,560.00 as constituting full satisfaction of the plaintiffs claim.

On July 19, 1991, plaintiffs accepted the check for $2,560.00, as partial payment
for the actual cost of their lost baggages and their contents.

Despite demands by plaintiffs, TWA failed and refused without just cause to
indemnify and redress plaintiffs for the grave injury and damages they have
suffered.[4]

Purita S. Mapa, Carmina S. Mapa, and Cornelio P. Mapa (herein

petitioners) then filed with the trial court on 1 August 1991 a complaint for [5]

damages, which was docketed as Civil Case No. Q-91-9620. Before a

[6]

responsive pleading was filed, the petitioners filed an Amended

Complaint. They prayed that after due trial private respondent Trans-World
[7]

Airlines, Inc. (hereafter, TWA), be ordered to pay them the following

amounts: (1) US$8,723.79, or its equivalent in Philippine currency,
representing the cost of the lost luggage and its contents; (2) US$2,949.50,
or its equivalent in Philippine currency, representing the cost of hotel, board
and lodging, and communication expenses; (3) P1 million, by way of moral
damages; (4) P1 million, by way of exemplary damages, with legal interest
on said amounts from the date of extrajudicial demand thereof; and
(5) P500,000.00 as attorney's fees, costs of the suit, and other expenses of
litigation.[8]

On 26 February 1992, TWA filed its Answer to the Amended Complaint

raising, as special and affirmative defense, lack of jurisdiction of Philippine
courts over the action for damages in that pursuant to Article 28(1) of the
Warsaw Convention, the action could only be brought either in Bangkok
where the contract was entered into, or in Boston which was the place of
destination, or in Kansas City which is the carrier's domicile and principal
place of business.
 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 is limited to US$9.07 per pound, or US$20.00 per kilo, which is
in lieu of actual and compensatory damages. Even assuming that
petitioners bag weighed the maximum acceptable weight of 70 pounds,
TWAs maximum liability is $640.00 per bag or $2,560.00 for the four pieces
of baggage, which the petitioners have been offered and have
accepted. TWA also submitted that it could not be liable for moral and
exemplary damages and attorneys fees because it did not act in a wanton,
fraudulent, reckless, oppressive, or malevolent manner. [9]

On 7 February 1992, the petitioners filed their second Amended

Complaint to include a claim of US$2,500, or its equivalent in Philippine
[10]

Currency, representing the additional replacement cost of the items and

personal effects contained in their lost luggage; and US$4,500 representing
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 necessary assistance in connection with the lost luggage.
After the filing of TWAs Answer to the second Amended
Complaint, and petitioners Reply thereto, the trial court gave TWA ten
[11]

days within which to submit a memorandum in support of its affirmative

defenses; after which the incident would be deemed submitted for
resolution. However, after TWA filed its Memorandum, the trial court
[12] [13]

gave the petitioners five days within which to file a reply memorandum; and
TWA, two days from receipt of the latter to file its comment thereon. The [14]

petitioners then filed their Opposition (by way of Reply Memorandum) to [15]

which TWA filed a Reply. Thereafter, the petitioners submitted a

[16]

Rejoinder ; TWA, a Surrejoinder.

[17] [18]

On 24 July 1992, the trial court issued an Order dismissing the case
[19]

for lack of jurisdiction in light of Article 28(1) of the Warsaw

Convention. Thus:

It is plaintiffs' theory that the Warsaw Convention does not apply to the instant
case because plaintiffs' contract of transportation does not constitute "international
transportation" as defined in said convention.This however is belied by the
Passenger Property Questionnaire which is Annex C of plaintiffs' amended
complaint. Page two of said questionnaire accomplished by plaintiffs under the
heading "Your Complete Itinerary" shows that the TWA tickets issued to the
plaintiffs form part of the contract of transportation to be performed from Manila
to the United States. Since the Philippines and the United States are parties to the
convention, plaintiffs' contracts of transportation come within the meaning of
International Transportation.

...

On the basis of the foregoing, the Court holds that the Warsaw Convention is
applicable to the case at bar, even if the basis of plaintiffs' present action is breach
of contract of carriage under the New Civil Code.

The next question to be resolved is whether or not the Court has jurisdiction to try
the present case in the light of the provision of Art. 28(1) above-quoted.
Under Art. 28(1) supra, a complaint for damages against an air carrier can be
instituted only in any of the following places/courts:

(1) The court of the domicile of the carrier;

(2) The court of its principal place of business;
(3) The court where it has a place of business through which the contract had been
made;
(4) The court of the place of destination.

In interpreting the provision of Art. 28(1) of the Warsaw Convention, the

Supreme Court in the same case of Augusto Benedicto Santos vs. Northwest
Airlines held:

"Whether Article 28(1) refers to jurisdiction or only to venue is a question over

which authorities are sharply divided. While the petitioner cites several cases
holding that Article 28(1) refers to venue rather that jurisdiction, there are later
cases cited by the private respondent supporting the conclusion that the provision
is jurisdictional.

Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be
conferred by consent or waiver upon a court which otherwise would have no
jurisdiction over the subject-matter of an action; but the venue of an action as
fixed by statute may be changed by the consent of the parties and an objection that
the plaintiff brought his suit in the wrong country may be waived by the failure of
the 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 consent or
agreement of the parties, whether or not a prohibition exists against their
alteration.

A number of reasons tends to support the characterization of Article 28(1) as a

jurisdiction and not a venue provision. First, the wording of Article 32, which
indicates the places where the action for damages "must" be brought, underscores
the mandatory nature of Article 28(1). Second, this characterization is consistent
with one of 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 jurisdiction other
than Article 28(1), which means that the phrase "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 the exclusive enumeration in Article 28(1) as
"jurisdictions," which, as such, cannot be left to the will of the parties regardless
of the time when the damage occurred.

...

It has been shown by the defendant that the domicile of the defendant Trans
World Airlines, Inc. is Kansas City, Missouri, its principal place of business is
also in Kansas City, Missouri, the 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.
The Philippines not being one of the places specified in Art. 28(1) above-quoted
where the complaint may be instituted, this Court therefore, does not have
jurisdiction over the present case.

Evidently discontented with the trial court's order, the petitioners

appealed to the Court of Appeals, contending that the lower court erred in
not holding that (1) it has jurisdiction over the instant case and (2) the
Warsaw Convention is inapplicable in the instant case because the subject
matter of the case is not included within the coverage of the said
convention. They claimed that their cause of action could be based on
[20]

breach of contract of air 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 governing tort or quasi-delict.
The appellate court disagreed with the petitioners and affirmed the order
of the trial court. It held that the Warsaw Convention is the law which
governs the dispute between the petitioners and TWA because what is
involved is international transportation defined by said Convention in Article
I(2). This holding is founded on its determination that the two TWA tickets
for Los Angeles-New York-Boston-St. Louis-Chicago purchased in
Bangkok, Thailand, were issued in conjunction with, and therefore
formed part of, the contract of transportation performed from Manila,
Philippines, to the United States.
The respondent court further held that the cause of action of the
petitioners arose from the loss of the four checked pieces of baggage, which
then falls under Article 18(1), Chapter III (Liability of the Carrier) of the
Warsaw Convention. Pursuant to Article 24(1) of the Convention, all
[21]

actions for damages, whether based on tort, code law or common law,
arising from loss of baggage under Article 18 of the Warsaw Convention,
can only be brought subject to the conditions and limits set forth in the
Warsaw Convention. Article 28(1) thereof sets forth conditions and limits in
that the action for damages may be instituted only in the territory of one of
the High Contracting Parties, before the court of (1) the domicile of the
carrier, (2) the carriers principal place of business, (3) the place of business
through which the contract has been made, or (4) the place of
destination. Since the Philippines is not one of these places, a Philippine
Court, like the RTC, has no jurisdiction over the complaint for damages.
Respondent Court of Appeals likewise held that the petitioners could not
claim application of Articles 1733, 1734, 1735, 1755, and 1756 of the New
Civil Code on common carriers without taking into consideration Article 1753
of the same Code, which provides that the law of the country to which the
goods are to be transported shall govern the liability of the common carrier
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 the loss of the four pieces of baggage. Neither is Article 2176 of the New
Civil Code on torts or quasi-delicts applicable in view of the private
international law principle of lex loci delicti commissi. In addition,
[22]

comformably with Santos III v. Northwest Orient Airlines, mere allegation

[23]

of willful misconduct resulting in a tort is insufficient to exclude the case from

the comprehension of the Warsaw Convention.
 Failing in their bid to reconsider the decision, the petitioners filed this
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
applying Article 1753 of the Civil Code and the principle of lex loci delicti
commissi. [24]

We resolved to give due course to the petition after the filing by TWA of
its Comment on the petition and noted without action for the reasons stated
in the resolution of 25 September 1996 petitioners Reply and Rejoinder. We
then required the parties to submit their respective memoranda. They did in
due time.
The petitioners insist that the Warsaw Convention is not applicable to
their case because the contracts they had with TWA did not involve
an international transportation. Whether the contracts were of international
transportation is to be solely determined from the TWA tickets issued to
them in Bangkok, Thailand, which showed that their itinerary was Los
Angeles-New York-Boston-St. Louis-Chicago. Accordingly, since the place
of departure (Los Angeles) and the place of destination (Chicago) are both
within the territory of one High Contracting Party, with no agreed stopping
place in a territory subject to the sovereignty, mandate, suzerainty or
authority of another Power, the contracts did not constitute international
transportation as defined by the convention. They also claim to be without
legal basis the contention of TWA that their transportation contracts were of
international character because of the handwritten notations in the tickets
re INTL TKT #079-4402956821-2 and INTL TKT #079-
4402956819. Notwithstanding such notations, the TWA tickets, viz., (a) No.
015.9475:153:304 and (b) No. 015:9475:153:305 did not cease to be for the
itinerary therein designated. Besides, it is a fact that petitioners Purita and
Carmina Mapa traveled from Manila to Los Angeles via Philippine Airlines
(PAL) by virtue of PAL tickets issued independently of the TWA tickets.
The pith issue to be resolved under the petitioners first assigned error is
whether the contracts of transportation between Purita and Carmina Mapa,
on the one hand, and TWA, on the other, were contracts of international
transportation under the Warsaw Convention. If they were, then we should
sustain the trial court and the Court of Appeals in light of our ruling in Santos
v. Northwest Orient Airlines. It appears clear to us that TWA itself, the trial
[25]

court, and the Court of Appeals impliedly admit that if the sole basis were
the two TWA tickets for Los Angeles-New York-Boston-St. Louis-Chicago,
the contracts cannot be brought within the term international transportation,
as defined in Article I(2) of the Warsaw Convention. As provided therein, a
contract is one of international transportation only if

according to the contract made by the parties, the place of departure and the place
of destination, whether or not there be a break in the transportation or a
transshipment, are situated either within the territories of two High Contracting
Parties, or within the territory of a single High Contracting Party, if there is an
agreed stopping place within a territory subject to the sovereignty, mandate or
authority of another power, even though that power is not a party to this
convention.
 There are then two categories of international transportation, viz., (1)
that 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 there be a break in the transportation or a transshipment; and (2) that
where the place of departure and the place of destination are within the
territory of a single High Contracting Party if there is an agreed stopping
place within a territory subject to the sovereignty, mandate, or authority of
another power, even though the power is not a party to the Convention.
The High Contracting Parties referred to in the Convention are the
signatories thereto and those which subsequently adhered to it. In the case
of the Philippines, the Convention was concurred in by the Senate, through
Resolution No. 19, on 16 May 1950. The Philippine instrument of accession
was signed by President Elpidio Quirino on 13 October 1950 and was
deposited with the Polish Government on 9 November 1950. The
Convention became applicable to the Philippines on 9 February 1951. Then,
on 23 September 1955, President Ramon Magsaysay issued Proclamation
No. 201, declaring the Philippines formal adherence thereto, to the end that
the 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 contracts of transportation in this case are evidenced by the two

TWA tickets, No. 015:9475:153:304 and No. 015:9475:153:305, both
purchased and issued in Bangkok, Thailand.On the basis alone of the
provisions therein, it is obvious that the place of departure and the place of
destination are all in the territory of the United States, or of a single High
Contracting Party. The contracts, therefore, cannot come within the purview
of the first category of international transportation. Neither can it be under
the second category since there was NO agreed stopping place within a
territory subject to the sovereignty, mandate, or authority of another power.
The only way to bring the contracts between Purita and Carmina Mapa,
on the one hand, and TWA, on the other, within the first category of
international transportation is to link them with, or to make them an integral
part of, the Manila-Los Angeles travel of Purita and Carmina through PAL
aircraft. The linkages which have been pointed out by the TWA, the trial
court, and the Court of Appeals are (1) the handwritten notations, viz., INTL
TKT # 079-4402956821-2 and INTL TKT # 079-4402956819, on the two
TWA tickets; and (2) the entries made by petitioners Purita and Carmina
Mapa in column YOUR COMPLETE ITINERARY in TWAs Passenger
Property Questionnaire, wherein they mentioned their travel from Manila to
Los Angeles in flight PR 102.
The alleged international tickets mentioned in the notations in
conjunction with which the two TWA tickets were issued were not
presented. Clearly then, there is at all no factual basis of the finding that the
TWA tickets were issued in conjunction with the international tickets, which
are even, at least as of now, non-existent.
As regards the petitioners entry in YOUR COMPLETE ITINERARY
column of the Passenger Property Questionnaire wherein they included
the Manila-Los Angeles travel, it must be pointed out that this was made
on 4 September 1990 by petitioners Purita and Carmina Mapa, and only
[27]
in connection with their claim for their lost pieces of baggage. The loss
occurred much earlier, or on 27 August 1990. The entry can by no means
be considered as a part of, or supplement to, their contracts of
transportation evidenced by the TWA tickets which covered transportation
within the United States only.
It must be underscored that the first category of international
transportation under the Warsaw Convention is based on the contract made
by the parties. TWA does not claim that the Manila-Los Angeles contracts
of transportation which brought Purita and Carmina to Los Angeles were
also its contracts. It does not deny the assertion of the petitioners that those
contracts were independent of the TWA tickets issued in Bangkok,
Thailand. No evidence was offered that TWA and PAL had an agreement
concerning transportation of passengers from points of departures not
served with 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 Answer to the second Amended Complaint the allegation in
[28]

paragraph 1.1 of the latter that TWA is a foreign corporation licensed to do

[29]

business in the Philippines with office address at Ground Floor, Saville

Building, Sen. Gil. J. Puyat Avenue, corner Paseo de Roxas, Makati, Metro
Manila.
TWA relies on Article I(3) of the Convention, which provides as follows:
3. A carriage to be performed by several successive air carriers is deemed, for the
purposes of this Convention, to be one undivided carriage, if it has been regarded
by the parties as a single operation, whether it had been agreed upon under the
form of a single contract or of a series of contracts, and it shall not lose its
international character merely because one contract or a series of contracts is to
be performed entirely within a territory subject to the sovereignty, suzerainty,
mandate, or authority of the same High Contracting Party.
It also points to Article 15 of the IATA Recommend Practice 1724, which
provides: Carriage to be performed by 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 respondents 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 on inferences
without established factual basis.
TWA should have offered evidence for its affirmative defenses at the
preliminary hearing therefor. Section 5 of Rule 16 of the Rules of Court
expressly provides:

SEC. 5. Pleading grounds as affirmative defenses. -- Any of the grounds for

dismissal provided for in this rule, except improper venue, may be pleaded as an
affirmative defense, and a preliminary hearing may be had thereon as if a motion
to dismiss had been filed.
 Without any further evidence as earlier discussed, the trial court should
have denied the affirmative defense of lack of jurisdiction because it did not
appear to be indubitable. Section 3 of Rule 16 of the Rules of Court
provides:

SEC. 3. Hearing and order. -- After hearing the court may deny or grant the
motion or allow amendment of pleading, or may defer the hearing and
determination of the motion until the trial if the ground alleged therein does not
appear to be indubitable.

WHEREFORE, the instant petition is GRANTED and the challenged

decision of 31 May 1995 of respondent Court of Appeals in CA-G.R. CV No.
39896, as well as the Order of 24 July 1992 of the Regional Trial Court of
Quezon City, Branch 102, in Civil Case No. Q-91-9620, is REVERSED and
SET ASIDE.
The Regional Trial Court of Quezon City, Branch 102, is hereby
DIRECTED to proceed with the pre-trial, if it has not been terminated, and
with the trial on the merits of the case and then to render judgment thereon,
taking into account the foregoing observations on the issue of jurisdiction.
SO ORDERED.
Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban,
JJ., concur.