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Actions in Case of Breach of Contract of Carriage
Actions in Case of Breach of Contract of Carriage
Actions in Case of Breach of Contract of Carriage
However, the grant of nominal damages is a bar to recovery of actual or MARITIME COMMERCE
compensatory, moral, or temperate damages It is a system of laws which particularly relates to the affairs and business
Temperate or moderate damages, which are more than nominal but less of the sea, to ships, their crews and navigation, and to maritime
than compensatory damages, may be recovered when some pecuniary loss conveyance
has been suffered but its amount cannot, from the nature of the case, be
proved with certainty [Article 2224]. ACCIDENTS AND DAMAGES IN MARITIME COMMERCE
Temperate and actual damages are mutually exclusive in that both may not AVERAGES
be awarded at the same time. The following shall be considered averages:
Liquidated damages are those damages agreed upon by the parties to a All extraordinary or accidental expenses incurred during the navigation for
contract, to be paid in case of breach thereof [Article 2226]. the preservation of the vessel or cargo, or both;
Purpose: to prevent breach of obligations between contracting parties All damages or deterioration the vessel may suffer from the time she puts
to sea from the port of departure until she casts anchor in the port of destination,
ATTORNEY’S FEES and those suffered by the merchandise from the time it is loaded in the port of
Under Article 2208, as applicable to a contract of carriage, attorney’s fees shipment until it is unloaded in the port of consignment [Article 806, Code of
and expenses of litigation may be recovered in the following cases: Commerce].
When exemplary damages are awarded; There are two kinds of averages:
When the common carrier’s act or omission has compelled the plaintiff to Particular or simple average; and
litigate with third persons or to incur expenses to protect his interest; Gross or general average.
Where the common carrier acted in gross and evident bad faith in refusing
to satisfy the plaintiff’s valid, just and demandable claim;
Particular or simple averages shall include all damages and expenses The damage suffered by the goods of the cargo through the opening made
caused to the vessel or cargo that did not inure to the common benefit and profit of in the vessel in order to drain her and prevent her sinking;
all persons interested in the vessel and her cargo [Article 809, Code of Commerce]. The expenses caused through floating a vessel intentionally stranded for
The owner of the goods which gave rise to the expense or suffered the the purpose of saving her;
damage shall bear this average [Article 810, Code of Commerce]. The damage caused to the vessel which it is necessary to break open,
Examples of simple averages: See Art 809 of the Code of Commerce scuttle, or smash in order to save the cargo;
The expenses of curing and maintaining the members of the crew who may
GENERAL AVERAGE have been wounded or crippled in defending or saving the vessel;
General or gross averages shall include all the damages and expenses which are The wages of any member of the crew detained as hostage by enemies,
deliberately caused in order to save the vessel, her cargo, or both at the same time, privateers, or pirates, and the necessary expenses which he may incur in
from a real and known risk [Article 811, Code of Commerce]. his imprisonment, until he is returned to the vessel or to his domicile,
should he prefer it;
Requisites The wages and victuals of the crew of a vessel chartered by the month
(1) There must be a common danger. This means, that both the ship and the cargo, during the time it should be embargoed or detained by force majeure or by
after it has been loaded, are subject to the same danger, whether during the order of the Government, or in order to repair the damage caused for the
voyage, or in the port of loading or unloading, that the danger arises from the common good;
accidents of the sea, dispositions of the authority, or faults of men, provided that the The loss suffered in the value of the goods sold at arrivals under stress in
circumstances producing the peril should be ascertained and imminent or may order to repair the vessel because of gross average;
rationally be said to be certain and imminent. This last requirement excludes The expenses of the liquidation of the average [Article 811, Code of
measures undertaken against a distant peril; Commerce];
(2) That for the common safety, part of the vessel or of the cargo or both is
sacrificed deliberately; If in lightening a vessel on account of a storm, in order to facilitate her
(3) That from the expenses or damages caused follows the successful saving of the entry into a port or roadstead, part of her cargo should be transferred to
vessel and cargo; lighters or barges and be lost, the owner of said part shall be entitled to
(4) That the expenses or damages should have been incurred or inflicted after taking indemnity, as if the loss has originated from a gross average [Article 817,
proper legal steps and authority [Magsaysay, Inc. v. Agan (1955)]. Code of Commerce];
Note: the proper steps and authority for making the sacrifice are prescribed in Article If, as a necessary measure to extinguish a fire in a port; roadstead; creek,
813 to 815 of the Code of Commerce. or bay, it should be decided to sink any vessel, this loss shall be considered
The gross or general average shall be borne by those who benefited from gross average, to which the vessels saved shall contribute.
the sacrifice. These include the ship owner and the owners of the cargoes
that were saved. Contribution may also be imposed on the insurers of the Procedure for recovery
vessel or cargoes that were saved, as well as lenders on bottomry or Assembly and deliberation with the sailing mate and other officers;
respondentia. Resolution of the captain adopted;
Hearing of the persons interested. In case an interested person should not
Cases of general average be heard, he shall not contribute to the gross average [Article 813, Code of
The goods or cash invested in the redemption of the vessel or cargo Commerce];
captured by enemies, privateers, or pirates, and the provisions, wages, and Resolution to be entered in the log book, stating the motives and reasons
expenses of the vessel detained during the time the arrangement or therefore as well as the votes and reason for disagreement [Article 814,
redemption is taking place; Code of Commerce];
The goods jettisoned to lighten the vessel, whether they belong to the Minutes to be signed by all the persons present or in urgent cases, the
vessel, to the cargo, or to the crew, and the damage suffered through said captain;
act by the goods kept; Captain shall deliver one copy of the minutes to the maritime judicial
The cables and masts which are cut or rendered useless, the anchors and authority of the first port he may make within 24 hours [Article 814, Code
the chains which are abandoned in order to save the cargo, the vessel, or of Commerce];
both; Captain shall ratify the minutes under oath [Article 814, Code of
Commerce].
The expenses of removing or transferring a portion of the cargo in order to
lighten the vessel and place her in condition to enter a port or roadstead, LENDERS ON BOTTOMRY AND RESPONDENTIA
and the damage resulting therefrom to the goods removed or transferred; Art 732 of the Code of Commerce provides that lenders on bottomry and
respondentia shall suffer, I proportion to their respective interest, the general
average which may take place in the goods on which the loan is made.
Who is entitled to indemnity The third zone covers the time between the moment when the collision has
The owners of the goods which were sacrificed is entitled to receive the general become a practical certainty and the moment of actual contact [A. Urrutia
average contribution. However, the following goods even if sacrificed are not & Co. v. Baco River Plantation Co. (1913)].
covered: Note: The rule is that the vessel which has forced the privileged vessel into danger is
1. Goods carried on deck unless the rule, special law or customs of the place responsible even if the privileged vessel committed an error within that zone.
allow the same; Thus, if it was during the time when the sail vessel was passing through the third
2. Goods that are not recorded in the books or records of the vessel; and zone, that it changed its course to port in order to avoid, if possible, the collision, the
3. Fuel for the vessel if there is more than sufficient fuel for the voyage. act may be said to have been done in extremis, and even if wrong, the sailing vessel
is not responsible for the result.
EFFECT OF NEGLIGENCE Also, in the case of Ottawa , the court said :
Article 848 of the Code of Commerce provides that claims for averages “Rules of navigation are obligatory from the time the necessity for
shall not be admitted if they do not exceed 5% of the interest which the precaution begin, and continue to be applicable as the vessels advance, so long as
claimant may have in the vessel or in the cargo if it be gross average and the means and opportunity to avoid the danger remain; but they do not apply to a
1% of the goods damaged if particular average, deducting in both cases the vessel required to keep her course after the approach is so near that the collision is
expenses of appraisal, unless there is an agreement of the contrary. inevitable, and are equally inapplicable to vessels of every description while they are
However, the common carriers cannot limit their liability for injury or loss of yet so distant from each other that measures of precaution have not become
goods when such injury or loss was caused by its own negligence. necessary.”
The law on average under the Code of Commerce cannot be applied in
determining liability where there is negligence, hence the issue , the issue APPLICABLE LAW
of negligence must first be addressed before the proper provision of the Liability in collision cases is negligence-based. The person who caused the
Code of Commerce on the extent of liability may be applied. injury is both civilly and criminally liable [Aquino (2011)].
Liability for negligence in the absence of contract is governed by article
YORK-ANTWERP RULES 2176 of the NCC- the provision on quasi-delict.
Although the Code of Commerce provisions are still in force, the parties However, the liabilities of shipowners and ship agents as well as the captain
may, by stipulation in the charter party or any written agreement, agree or crew in collision cases is still governed by the provisions of the Code of
that the York-Antwerp Rules shall be applied. Commerce on Collision.
In addition, the York-Antwerp Rules may also be used to solve Although collision may be said to involve maritime tort, the special rules
controversies where no provision in the Code of Commerce is in point under the Code of Commerce will govern the rights and liabilities of the
because the said rules embody the custom of maritime states. persons or entities involved.
( See York-Antwerp Rules, 1974)
COLREGS
COLLISIONS The existing international agreement with respect to collision in high
Collision is an impact or sudden contact between two moving vessels seas( and waters connected to high seas navigable by seagoing vessels) is
[Aquino (2011)]. the International Regulations for Preventing Collision at Sea(COLREGS)
Allision is the striking of a moving vessel against one that is stationary. which was formulated by the International Maritime Organization.
However, it is not necessary for one to be liable for his vessel to have hit Although the Philippines has not yet acceded to COLREGS, the rules that
another. A ship owner or ship agent may be made liable even if his vessel are embodied therein are already being used by most of its trading
did not actually collide with another vessel . This situation is covered by partners. Hence, the personnel of Philippine vessel are not only required to
ARTICLE 831 OF THE Code of Commerce which makes the owner of a third know the provisions of COLREGS but are even compelled to follow them.
vessel liable if it forced a vessel to hit another.
RULE 7 and 8 of COLREGS
ZONES OF COLLISION Rule 7 Risk of collision
In all collisions between vessels at sea, there exist three divisions or zones of time: (a) Every vessel shall use all available means appropriate to the prevailing
The first division covers all the time up to the moment when the risk of circumstances and conditions to determine if risk of collision exists. If there
collision may be said to have begun; is any doubt such risk shall be deemed to exist.
Note: Within this zone no rule is applicable because none is necessary. Each (b) (b) Proper use shall be made of radar equipment if fitted and operational,
vessel is free to direct its course as it deems best without reference to the including long-range scanning to obtain early warning of risk of collision and
movement of the other vessel radar plotting or equivalent systematic observation of detected objects.
The second division covers the time between the moment when the risk of (c) (c) Assumptions shall not be made on the basis of scanty information,
collision begins and the moment when it has become practically certain; especially scanty radar information.
Note: The burden is on the vessel required to keep away and avoid the danger
(d) (d) In determining if risk of collision exists the following considerations shall Thus , if both vessels were negligently operated, it does not matter if the
be among those taken into account: (i) such risk shall be deemed to exist if other has the last clear chance of avoiding the injury because under Article
the compass bearing of an approaching vessel does not appreciably 827, each must suffer its own damage if both of them are negligent.
change; (ii) such risk may sometimes exist even when an appreciable Although the negligence on the part of the mate of the incoming vessel
bearing change is evident, particularly when approaching a very large preceded the negligence on the part of the mate of the outgoing vessel by
vessel or a tow or when approaching a vessel at close range. an appreciable interval of time, the first vessel cannot on that account be
Rule 8 Action to avoid collision absolved from responsibility.
(a) Any action taken to avoid collision shall be taken in accordance with the
Rules of this Part and shall, if the circumstances of the case admit, be SPECIFIC RULES under the COC
positive, made in ample time and with due regard to the observance of When only one vessel is at fault, the owner of the vessel at fault shall
good seamanship. indemnify the losses and damages suffered, after an expert appraisal
(b) (b) Any alteration of course and/or speed to avoid collision shall, if the [Article 826, Code of Commerce];
circumstances of the case admit, be large enough to be readily apparent to When both vessels are at fault, each shall suffer its own damages, and both
another vessel observing visually or by radar; a succession of small shall be solidarily responsible for the losses and damages occasioned to
alterations of course and/or speed should be avoided. their cargoes [Article 826, Code of Commerce];
(c) (c) If there is sufficient sea-room, alteration of course alone may be the In case of inscrutable fault, that is, if it cannot be decided which of the two
most effective action to avoid a close-quarters situation provided that it is vessels was the cause of the collision, each shall bear his own damage and
made in good time, is substantial and does not result in another close- both shall be jointly responsible for the losses and damages suffered by
quarters situation. their cargoes [Article 828, Code of Commerce];
(d) (d) Action taken to avoid collision with another vessel shall be such as to When it is due to a fortuitous event, each vessel and its cargo shall bear its
result in passing at a safe distance. The effectiveness of the action shall be own damages [Article 830, Code of Commerce];
carefully checked until the other vessel is finally past and clear. When, by reason of fortuitous event, a vessel properly anchored and
(e) (e) If necessary to avoid collision or allow more time to assess the situation, moored collides with another, the injury occasioned shall be looked upon as
a vessel shall slacken her speed or take all way off by stopping or reversing particular average to the vessel run into [Article 832, Code of Commerce];
her means of propulsion. When a third vessel at fault, the owner of the third vessel shall indemnify
(i) A vessel which, by any of these Rules, is required not to impede the the losses and damages caused, the captain thereof being civilly liable to
passage or safe passage of another vessel shall, when required by the said owner [Article 831, Code of Commerce].
circumstances of the case, take early action to allow sufficient sea-room for
the safe passage of the other vessel. COLLISION IN FOREIGN WATERS
(ii) A vessel required not to impede the passage or safe passage of another Article 839. If the collision should take place between Philippine vessels in foreign
vessel is not relieved of this obligation if approaching the other vessel so as waters, or if having taken place in the open seas, and the vessels should make a
to involve risk of collision and shall, when taking action, have full regard to foreign port, the Consul of the Republic of the Philippines in said port shall hold a
the action which may be required by the Rules of this Part. summary investigation of the accident, forwarding the proceedings to the secretary
(iii) A vessel the passage of which is not to be impeded remains fully of the dept of foreign affairs for continuation and conclusion.
obliged to comply with the Rules of this Part when the two vessels are
approaching one another so as to involve risk of collision. PROTEST
Note: Article 835. The action for recovery of losses and damges arising from collisions
In the determination of negligence, the same test of a reasonable man in cannot be admitted if a protest or declaration is not presented within 24 hours
the position of an expert that applies in quasi-delict should also be applied before the competent authority of the point where the collision took place, or that of
although with due consideration to the expertise of the persons involved the first port of arrival of the vessel, if in the Phil territory, and to the consul of the
including the carrier itself. Rep of the Phil if it occurred in a foreign country.
Thus, it is still required to determine if a reasonable man with the same Article 836. With respect to damages caused to persons or to cargo, the absence of
expertise would have done what the party in question did under the same protest may not prejudice the persons interested who were not on board or where
circumstances . not in a condition to make known their wishes.
It is still relevant to determine if the collision is sufficiently forseeable such
that a reasonable man with the same expertise could have avoided the ARRIVAL UNDER STRESS
impact. Arrival under stress is the arrival of a vessel at the nearest and most
convenient port instead of the port of destination, if during the voyage the
Contributory Negligence and Last Clear Chance Not Applicable vessel cannot continue the trip to the port of destination.
In some respect, the rules that apply to quasi-delict cannot be applied in
collision cases because of Article 827 of the Code of Commerce.
It is lawful when the inability to continue voyage is due to lack of Jetsam are goods that were thrown off a ship which was in danger.
provisions, well-founded fear of seizure, privateers, pirates, or accidents of Flotsam are goods that floated off the ship while the ship was in danger or
the sea disabling it to navigate [Article 819, Code of Commerce]. when it sank.
It is unlawful when: Ligan are goods left at sea on the wreck or tied to a buoy so that they can
The lack of provisions should arise from the failure to take the necessary be recovered later.
provisions for the voyage, according to usage and custom, or if they should
have been rendered useless or lost through bad stowage or negligence in CARRIAGE OF GOODS BY SEA ACT (COGSA)
their care; APPLICATION
The risk of enemies, privateers, or pirates should not have been well known COGSA (Commonwealth Act No. 65) is a special law that governs all contracts of
or manifest, and based on positive and justifiable facts; carriage of goods by sea between or to and from the Philippine ports.
The injury to the vessel should have been caused by reason of her not Its application is according to the following scheme:
being repaired, rigged, equipped, and arranged in a convenient manner for If the common carrier is coming to the Philippines:
the voyage, or by reason of some erroneous order of the captain; or First: Civil Code;
Malice, negligence, want of foresight, or lack of skill on the part of the Second: COGSA (in foreign trade);
captain is the reason for the act causing the damage [Article 820, Code of Third: Code of Commerce;
Commerce]. If the private carrier is coming to the Philippines:
First: COGSA;
SHIPWRECKS Second: Code of Commerce;
Shipwreck denotes loss or wreck of a vessel at sea as a consequence of Third: Civil Code (excluding rules on common carriers);
running against another vessel or thing at sea or on coast where the vessel is If the private or common carrier is from the Philippines to a foreign country,
rendered incapable of navigation. the law of the foreign country applies [Article 1753] unless the parties
If the wreck was due to malice, negligence or lack of skill of the captain, make COGSA applicable.
the owner of the vessel may demand indemnity from said captain. [Article 841, Code Under Article 1766, in all matters not regulated by the Civil Code, the
of Commerce]. rights and obligations of common carriers shall be governed by the Code of
Commerce and special laws. Thus, although a special law, COGSA only
SALVAGE applies when the Civil Code has no provision dealing with the matter.
Salvage is defined as the service which one person renders to the owner of
a ship or goods, by his own labor, preserving the goods or the ship which DOCUMENTS OF TITLE REQUIRED
the owner or those entrusted with the care of them have either abandoned The contracts of carriage of goods covered by COGSA are evidenced by Bill
in distress at sea, or are unable to protect and secure. of Lading.
RATIONALE Section 1 of COGSA provides that the term contract of carriage applies to
Salvage is founded on equity and is compensation for actual services rendered. contracts of carriage by sea covered by a bill of lading or any similar documents of
The compensation for voluntary salvage is dictated by public policy to encourage title, in so far as such document relates to the carriage of goods by sea, including
the hardy and adventurous mariner to engage in a laborious and sometimes any bill of lading or any similar document as aforesaid issued under or pursuant to a
dangerous enterprise charter party from the moment at which such bill of lading or similar document of
title.
Kinds of salvage claim
VOLUNTARY- wherein compensation is dependent upon success NOTICE OF LOSS OR DAMAGES
RENDERED UNDER A CONTRACT FOR A PER DIEM OR PER HORAM WAGE- Notice of claim and the general nature of the loss or damage must be given
payable at all events in writing to the carrier or his agent at the port of discharge before or at the time of
UNDER A CONTRACT FOR A COMPENSATION- payable only in case of the removal of the goods [Section 3(6), COGSA].
success If damage is not patent or cannot be ascertained from the package, the
Three elements are necessary to a valid salvage claim: shipper should file the claim with the carrier within three days from delivery.
A marine peril; Under Section 3(6), COGSA, a failure to file a notice of claim within three
Service voluntarily rendered when not required as an existing duty or from days will not bar recovery if it is nonetheless filed within one year. This one-year
a special contract; prescriptive period also applies to the shipper, the consignee, the insurer of the
Success, in whole or in part, or that the service rendered contributed to goods or any legal holder of the bill of lading. Inasmuch as the neither the Civil Code
such success [Erlanger & Galinger v. Swedish East Asiatic Co. Ltd (1916)]. nor the Code of Commerce states a specific prescriptive period on the matter, the
COGSA may be applied [Belgian Overseas Chartering and Shipping v. Philippine First
JETSAM AND FLOTSAM Ins. Co. (2002)].
Jetsam and Flotsam are unless abandoned, still property of their original owners.
PERIOD OF PRESCRIPTION 1. Death or injury of a passenger if the accident causing it took place:
The carrier and the ship shall be discharged from all liability in respect of On board the aircraft;
loss or damage unless suit is brought within one year after delivery of the goods or 2. In the course of the operations of embarking or disembarking; or
the date when the goods should have been delivered. 3. When there was delay [Article 17 and 19, Warsaw Convention];
The absence of a notice shall not affect or prejudice the right of the shipper 4. Destruction, loss, or damage to any baggage or goods that are checked in, if
to bring suit within one year after the delivery of the goods or the date when the damage occurred:
goods should have been delivered [Section 3 (6)]. During the transportation by air; or
COGSA, as a special law, prevails over the general provisions of the Civil When there was delay [Section 18 and 19, Warsaw Convention];
Code on prescription of actions [Maritime Agencies & Services, Inc. v. CA (1990)]. 5. Delay in the transport by air of passengers, baggage or goods.
------The carriage by air contemplated comprises the period in which the baggage or
LIMITATION OF LIABILITY goods are in charge of the carrier, whether in an airport or on board an aircraft, or,
Under Section 4(5), COGSA, the limit is set at a maximum of $500 per in the case of a landing outside an airport, in any place whatsoever [Article 18,
package or customary freight unit. Warsaw Convention].
This is deemed incorporated in the bill of lading even if not mentioned
therein [Eastern Shipping v. IAC (1987)]. LIMITATION OF LIABILITY
The declaration made by the shipper stating an amount bigger than $500 With respect to the following limitations of liability, Article 23, Warsaw Convention
per package will make the carrier liable for such bigger amount, but only if the provides that any provision tending to relieve the carrier of liability or to fix a lower
amount so declared is the real value of goods [Aquino (2011)]. limit than that which is laid down shall be null and void, but the nullity of any such
The Civil Code does not limit the liability of the common carrier to a fixed provision does not involve the nullity of the whole contract.
amount per package. In all matters not regulated by the Civil Code, the right and the Also, under Article 25, Warsaw Convention:
obligations of common carriers shall be governed by the Code of Commerce and The carrier shall not be entitled to avail himself of the provisions which
special laws. exclude or limit his liability, if the damage is caused by his wilful misconduct or by
Thus, the COGSA, which is suppletory to the provisions of the Civil Code, such default on his part as is considered to be equivalent to wilful misconduct;
supplements the latter by establishing a statutory provision limiting the carrier’s Similarly the carrier shall not be entitled to avail himself of the said
liability in the absence of a shipper’s declaration of a higher value in the bill of provisions, if the damage is caused as aforesaid by any agent of the carrier acting
lading. [Belgian Overseas v. Philippine First Ins. Co. (2002)]. within the scope of his employment.
Under Article 29, Warsaw Convention, the right to damages under the WC
The Warsaw Convention is extinguished after two years from the date of arrival at the destination or from the
APPLICABILITY date on which the aircraft ought to have arrived, or from the date on which the
The Warsaw Convention applies to: carriage stopped. The method of calculating the period of limitation shall be
All international carriage of persons, baggage, or cargo performed by determined by the law of the court seized of the case .
aircraft for reward;
Gratuitous carriage by aircraft performed by an air transport undertaking LIABILITY TO PASSENGERS
[Article 1(1), Warsaw Convention]. General rule: In the carriage of passengers, the liability of the carrier for
International air carriage or international air transport means transportation each passenger is limited to 250,000 francs passenger.
by air between points of contact of two high contracting parties, or those countries Exception: By special contract, the carrier and the passenger may agree to
that have acceded to the Warsaw Convention, wherein the place of departure and a higher limit [Article 22(1), Warsaw Convention].
the place of destination are situated:
Within the territories of two high contracting parties, regardless of whether LIABILITY FOR CHECKED BAGGAGE
or not there be a break in the transportation or a trans-shipment; or General rule: In the carriage of baggage and goods, the liability of the carrier is
Within the territory of a single high contracting party, if there is an agreed limited to 250 francs per kilogram.
stopping place within a territory subject to the sovereignty, mandate or authority of Exception: The limit does not apply when the consignor has made, at the time when
another power, even though the power is not a party to the Convention [Article 1(2), the package was handed over to the carrier, a special declaration of the value at
Warsaw Convention]. delivery and has paid a supplementary sum if the case so requires. In that case the
A carriage to be performed by several successive air carriers is deemed, for carrier will be liable to pay a sum not exceeding the declared sum, unless he proves
the purposes of the Convention, to be one undivided carriage, if it has been that that sum is greater than the actual value to the consignor at delivery [Article
regarded by the parties as a single operation, whether it had been agreed upon 22(2), Warsaw Convention].
under the form of a single contract or of a series of contracts [Article 1(3), Warsaw
Convention]. LIABILITY FOR HAND-CARRIED BAGGAGE
As regards hand-carried baggage, the liability of the carrier is limited to
The carrier is liable for damages for: 5,000 francs per passenger [Article 22(3), Warsaw Convention].
·The Guatemala Protocol of 1971 increased the limit for passengers to
$100,000 and to $1,000 for baggage. However, the Supreme Court noted in Santos
III v. Northwest Orient Airlines (1992), that the Guatemala Protocol is still ineffective
[Sundiang and Aquino (2013)].
The Warsaw Convention should be deemed a limit of liability only in those
cases where the cause of death or injury to person, or destruction, loss or damage
to property or delay in its transport is not attributable to or attended by any willful
misconduct, bad faith, recklessness, or otherwise improper conduct on the part of
any official or employee for which the carrier is responsible; and there is otherwise
no special or extraordinary form of resulting injury [Alitalia Airways v. CA (1990)].
WILLFUL MISCONDUCT
A common carrier may not avail of the limitation in the following cases:
Willful misconduct;
Default amounting to willful misconduct [Article 25, Warsaw Convention];
Accepting passengers without ticket [Article 3(2), Warsaw Convention];
Accepting goods without airway bill or baggage without baggage check.
Receipt by the person entitled to the delivery of baggage or cargo without
complaint is prima facie evidence that the same have been delivered in good
condition and in accordance with the document of carriage [Article 26, Warsaw
Convention].