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.

Angara, Abello, Concepcion, Regala & Cruz for petitioners.

Quisumbing, Torres & Evangelista for private respondent.

SYNOPSIS

Petitioners purchased two (2) TWA tickers in Bangkok, Thailand. Said tickers are for
Los Angeles — New York — Boston — St. Louis-Chicago. On August 27, 1990 petitioners
Purita and Carmina S. Mapa departed for Boston, taking a connecting ight on TWA's
carrier TW 0901 from JFK Airport, checking in seven (7) pieces of luggage at the TWA
counter in the JFK Airport. Upon arriving in Boston petitioners Purita and Carmina
proceeded to the carousel to claim their baggages and found only three (3) out of the
seven they checked in. Despite TWA's assurance that their luggages would be located
within 48 hours, the same were never found. The total value of the lost items amounted to
$11,283.79. TWA offered to settle the case by giving petitioners two options; (a)
transportation credit for future TWA travel or (b) cash settlement. Petitioners chose the
rst option, however, TWA disregarded petitioners' option and unilaterally declared the
payment of $2,560.00 as constituting full satisfaction of petitioners' claim. Petitioners
accepted the check for $2,560 as partial payment for the actual cost of their lost
baggages. Despite demands by petitioners respondent TWA failed and refused without
just cause to indemnify and redress petitioners for grave injury and damages they have
suffered.
Petitioners led with the trial court a complaint for damages. The trial court
dismissed the case for lack of jurisdiction in light of Article 28(1) of the Warsaw
Convention. The trial court held that the Warsaw Convention is applicable in case at bar,
since the Philippines and the United States are parties to the convention, the contracts of
transportation come within the meaning of "International Transportation." The trial court
also held that the Philippines, not being one of the places speci ed in Art. 28 (1) of the
Warsaw Convention where the complaint may be instituted then it has no jurisdiction over
the present case. On appeal to the Court of Appeals, the appellate court a rmed the ruling
of the trial court. Hence, the present petition. The Supreme Court ruled that the contracts
does not fall under the category of international transportation as provided by the Warsaw
Convention. The only way to bring the contracts between petitioners Purita and Carmina
Mapa on the one hand, and TWA on the other, within the category of international
transportation is to link them or to make them an integral part of the Manila — Los Angeles
travel of Purita and Carmina through Pal aircraft. However, the alleged international tickets
issued by TWA were not presented in evidence, clearly then; there is at all no factual basis
of the finding that the TWA tickets were issued in conjunction with the international tickets.
Petition granted and the challenged decision of the Court of Appeals is reversed and
set aside.
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 SYLLABUS

1. CIVIL LAW; CONTRACT OF TRANSPORTATION; WARSAW CONVENTION;

"INTERNATIONAL TRANSPORTATION," DEFINED. — As provided in Article I(2) of the
Warsaw Convention, 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.
2. ID.; ID.; ID.; ADHERED TO BY THE REPUBLIC OF THE PHILIPPINES. — In the
case of the Philippines, the Convention was concurred in by the Senate, through Resolution
No. 19, on 16 May 1950. The Philippines 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 maybe observed and ful lled in good faith by the Republic
of the Philippines and the citizens thereof.
3. ID.; ID.; ID.; WHEN CONTRACT IS NOT OF INTERNATIONAL
TRANSPORTATION; CASE AT BAR. — The contracts of transportation in this case are
evidence by the two TWA tickets, No. [Link] and No. [Link], 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 rst 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. It must be underscored
that the rst 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 di culty for such agreement, since TWA admitted without
quali cation in paragraph 1 of its Answer to the second Amended Complaint the allegation
in paragraph 1.1 of the latter that TWA "is a foreign corporation licensed to do business in
the Philippines with o ce address at Ground Floor, Saville Building, Sen. Gil J. Puyat
Avenue, corner Paseo de Roxas, Makati, Metro Manila."
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 4. REMEDIAL LAW; ACTIONS; MOTION TO DISMISS; EVIDENCE SHOULD HAVE
BEEN OFFERED AT THE PRELIMINARY HEARING. — TWA should have offered evidence for
its a rmative defenses at the preliminary hearing therefor. Section 5 of Rule 16 of the
Rules of Court expressly provides: SEC. 5. Pleading grounds as a rmative defenses . —
Any of the grounds for dismissal provided for in this rule, except improper venue, may be
pleaded as an a rmative defense, and a preliminary hearing may be had thereon as if a
motion to dismiss had been led. Without any further evidence as earlier discussed, the
trial court should have denied the a rmative 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.

DECISION

DAVIDE , JR. , J : p

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:
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 2 a rming 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 a liate 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. cdasia

Plaintiffs Mapa entered into contract of air transportation with defendant

TWA as evidenced by TWA ticket Nos. [Link] and [Link],
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. TWA's place of business through which
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 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 ight 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 ight on TWA's carrier, TW 0901, from JFK Airport,
New York, to Boston's 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 76 therefor.

From the entrance gate of the terminal building, plaintiffs Purita and
Carmina proceeded to TWA's ticket counter and presented their con rmed TWA
tickets numbered [Link] and [Link] 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 ight 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 ight 901 had just departed. However, they were consoled that
another TWA ight was leaving for Boston after 30 minutes and plaintiffs could
use the same boarding pass for the next ight. At around 3:15 p.m., plaintiffs
Purita and Carmina were able to board the next ight. 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 nally
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
oor near the carousel and a third baggage, an American Tourister, inside the
unclaimed baggage o ce. Plaintiffs immediately reported the loss of their four
baggages to the TWA Baggage O ce at Logan Airport. TWA's representative
con dently 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 TWA's 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 o ce address at Ground
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 Floor, Saville Building, Sen. Gil J. Puyat Avenue corner Paseo de Roxas, Makati,
Metro Manila demanding indemni cation 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 TWA's 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 led
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 responsive pleading was led, the petitioners led an
Amended Complaint. 7 They prayed that after due trial private respondent Trans-World
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, cost of the suit, and other expenses of litigation. 8
On 26 February 1992, TWA led its Answer to the Amended Complaint raising, as
special and a rmative 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, TWA's 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 attorney's fees
because it did not act in a wanton, fraudulent, reckless, oppressive, or malevolent manner.
9

On 7 February 1992, the petitioners led their second Amended Complaint 10 to

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 include a claim of US$2,500, or its equivalent in Philippine 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 ling of TWA's Answer to the second Amended Complaint, 11 and
petitioners' Reply thereto, the trial court gave TWA ten days within which to submit a
memorandum in support of its a rmative defenses; after which the incident would be
deemed submitted for resolution. 1 2 However, after TWA led its Memorandum, 13 the
trial court gave the petitioners ve days within which to le a reply memorandum; and
TWA, two days from receipt of the latter to le its comment thereon. 14 The petitioners
then led their Opposition (by way of Reply Memorandum) 15 to which TWA led a Reply.
16 Thereafter, the petitioners submitted a Rejoinder 17 ; TWA, a Surrejoinder. 18

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:
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 de ned 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.
xxx xxx xxx
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 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
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 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 is xed 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 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 speci cally deals with
the exclusive enumeration in Article 28(1) as "jurisdiction," 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 speci ed in Art. 28(1)
abovequoted 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. 2 0 They claimed that their cause of action could be based on 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 a rmed 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 in international transportation de ned
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.
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 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. 2 1 Pursuant to Article 24(1)
of the Convention, all actions for damages, whether based on tort, code law of 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 carrier's 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. 2 2 In addition, comformably with Santos III v. Northwest Orient
Airlines, 2 3 mere allegation of willful misconduct resulting in a tort is insu cient to exclude
the case from the comprehension of the Warsaw Convention.
Failing in their bid to reconsider the decision, the petitioners led 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. 2 4
We resolved to give due course to the petition after the ling 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 de ned 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 "INT'L TKT
#079-4402956821-2" and INT'L TKT #079-4402956819." Notwithstanding such notations,
the TWA tickets, viz., (a) No. [Link] and (b) No. [Link] 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.

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 The pith issue to be resolved under the petitioners' rst 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. 2 5 It appears clear to us that TWA
itself, the trial 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 ful lled in good faith by the Republic of the
Philippines and the citizens thereof. 2 6
The contracts of transportation in this case are evidenced by the two TWA tickets,
No. [Link] and No. [Link], 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 rst 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 rst 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., INT'L TKT
#079-4402956821-2 and INT'L TKT #079-4402956819, on the two TWA tickets; and (2)
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 the entries made by petitioners Purita and Carmina Mapa in column YOUR COMPLETE
ITINERARY in TWA's 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 nding 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 petitioner's 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 2 7 by petitioners Purita and
Carmina Mapa, and only 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 rst 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 di culty for such agreement, since TWA admitted
without quali cation in paragraph 1 of its Answer 28 to the second Amended Complaint
the allegation in paragraph 1.1 of the latter 29 that TWA "is a foreign corporation licensed
to do business in the Philippines with o ce 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 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." 3 0
The aw 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' a rmance 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 a rmative defenses at the preliminary
hearing therefor. Section 5 of Rule 16 of the Rules of Court expressly provides:
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 SEC. 5. Pleading grounds as a rmative defenses . — Any of the
grounds for dismissal provided for in this rule, except improper venue, may be
pleaded as an a rmative 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 a rmative 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. cda

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 ., Melo, Francisco and Panganiban, JJ., concur.

Footnotes
1. The full title is Warsaw Convention for Unification of Certain Rules Relating to
International Carriage by Air. This was signed at Warsaw, Poland on 12 October 1929.
See Philippine Treaty Series, Vol. II, 577-590 [1968].
2. Rollo, 38-52. Per Lantin, J., J., with Austria-Martinez, A. and Salas, B., JJ., concurring.
3. Original Records (OR), Civil Case No. Q-91-9620, 259-264. Per Judge Perlita J. Tria
Tirona.

4. Rollo, 41-45.
5. OR, 1-7.

6. For lost luggage and its contents; expenses for hotel, board and lodging, and
communication; moral damages; exemplary damages; attorney's fees; and expenses of
litigation.
7. OR, 22 et seq.

8. Id., 27-28.
9. Id., 48-50.
10. OR, 73-82.

11. Id., 100-106.

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 12. Id., 118
13. Id., 120-130.
14. Id., 173.
15. Id., 176-186.
16. Id., 197-202.
17. Id., 213-217.
18. Id., 218-225.
19. Id., 259-264.
20. Rollo, p. 41.
21. It provides:
ARTICLE 18. (1) The carrier shall be liable for damage sustained in the
event of the destruction or loss of, or of damage to, any baggage or any goods, if
the recurrence which caused the damage so sustained took place during the
transportation by air.
22. Law of the place of wrong.

23. 210 SCRA 256, 274 [1992].

24. Rollo, 24-25.

25. Supra, note 23.
26. Santos III v. Northwest Orient Airlines, supra, note 23 at pages 260-261.
27. OR, 34.

28. OR, 100.

29. Id., 73.

30. OR, 137.

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