Date: 20030513
Docket: T-452-00
Citation: 2003 FCT 587
OTTAWA, ONTARIO, THIS 13TH DAY OF MAY, 2003
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
GREEN COMPUTER IN SWEDEN AB
and
POWER GROUP & ASSOCIATES
Plaintiffs
and
FEDERAL EXPRESS CORPORATION,
UNIVERSAL FDX AB,
FEDERAL EXPRESS CANADA LIMITED
and
ALL FEDERAL EXPRESS CORPORATION'S
AFFILIATED, ASSOCIATED AND
SUBSIDIARY COMPANIES
Defendants
REASONS FOR ORDER AND ORDER
[1] Pursuant to Rule 51 of the Federal Court Rules, 1998, the plaintiffs seek to have set aside the order of Prothonotary Richard Morneau, dated September 27, 2002, wherein he ordered that the plaintiffs are entitled to $851 plus interest at the legal rate of five (5) percent compounded quarterly; no costs being awarded to either party. The plaintiffs submit that the Prothonotary ought to have awarded them the sum of $50,000, plus costs and interest at the legal rate of interest of five (5) percent compounded quarterly, with costs to be determined by the Court.
[2] The Prothonotary determined that the defendants (collectively known as "FedEx") were entitled to limit their liability under Article 22(2) of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, on October 12, 1929, as amended by the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at The Hague on September 28, 1955, which Convention and Protocol (the "Warsaw Convention") are reproduced and incorporated respectively as Schedules I and III of the Carriage by Air Act, R.S.C. 1985, c. C-26, as amended.
[3] Articles 1, 18, 22(2) and 25 read as follows:
Article 1
1. This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
2. For the purposes of this Convention, the expression "international carriage" means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, 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 the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.
3. 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 does not lose its international character merely because one contract or a series of contracts is to be performed entirely within a territory of the same State.
Article 18
(1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air.
(2) The carriage by air within the meaning of the preceding paragraph comprises the period during which the baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever.
(3) The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air.
Article 22(2)
(a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger's or consignor's actual interest in delivery at destination.
(b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
Article 25
The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.
[4] It is not questioned that the FedEx International Airway bill is contemplated by Article 1 of the Warsaw Convention. It is also agreed that there has been an "international carriage" of cargo within the meaning of the Warsaw Convention.
[5] Moreover, at the hearing of this appeal, plaintiff's counsel announced to the Court that the plaintiffs were not pursuing any argument based on Article 25 of the Warsaw Convention.
[6] That being said, the plaintiffs contend that the Prothonotary erred in law in allowing the defendants to limit their liability pursuant to Article 22(2) of the Warsaw Convention since Article 18(3) of same provides that "[t]he period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome".
[7] However, the Prothonotary considered, under the circumstances, that the carriage of cargo took place "in the performance of contract for carriage by air". He relied on the legal presumption established by Article 18(3) of the Warsaw Convention that the loss occurred "during the carriage by air".
[8] Based on the evidence on record, this finding was reasonably opened to the Prothonotary and should not be overturned. Furthermore, in my view, the wording of Article 18(3) is clear. Article 18(3) expressly provides that if "such a carriage [by land, by sea or by river performed outside an aerodrome] takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to the proof to the contrary, to have been the result of an event which took place during the carriage by air".
[9] A legal presumption is created by Article 18(3) when it cannot be determined where exactly the package was lost, damaged or stolen. This is precisely the case here. There has been no actual "proof to the contrary", or rather, any evidence that, in fact, the damage so sustained took place during "any carriage by land, by sea or by river performed outside an aerodrome".
[10] The Prothonotary did not err in his interpretation or application of the Warsaw Convention. Moreover, I entirely accept the arguments made in this regard by the defendants in their written representations.
[11] Since I have concluded that Prothonotary Morneau did not err in determining that the defendants may limit their liability under Article 22 of the Warsaw Convention, it is not necessary that I examine the alternate arguments made by counsel, which are all dependent on a preliminary finding by the Court that the Warsaw Convention does not apply to the present loss of the cargo.
ORDER
THIS COURT ORDERS that the appeal made by the plaintiffs to set aside the order of Prothonotary Richard Morneau, dated September 27, 2002, be dismissed with costs.
"Luc Martineau"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-452-00
STYLE OF CAUSE: GREEN COMPUTER IN SWEDEN AB ET AL v.
FEDERAL EXPRESS CORPORATION ET AL
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: April 29, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: May 13, 2003
APPEARANCES:
Me J. Kenrick SPROULE FOR THE PLAINTIFFS
Me Nicolas PLOURDE FOR THE DEFENDANTS
SOLICITORS OF RECORD:
J. KENRICK SPROULE FOR THE PLAINTIFFS
HEENAN BLAIKIE LLP FOR THE DEFENDANTS
FEDERAL COURT OF CANADA
Date: 20030513
Docket: T-452-00
BETWEEN:
GREEN COMPUTER IN SWEDEN AB
and
POWER GROUP & ASSOCIATES
Plaintiffs
and
FEDERAL EXPRESS CORPORATION,
UNIVERSAL FDX AB,
FEDERAL EXPRESS CANADA LIMITED
and
ALL FEDERAL EXPRESS CORPORATION'S
AFFILIATED, ASSOCIATED AND
SUBSIDIARY COMPANIES
Defendants
REASONS FOR ORDER
AND ORDER
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