Durunna v. Air Canada, (2013) 555 A.R. 367 (PC)

JudgeSkitsko, P.C.J.
CourtProvincial Court of Alberta (Canada)
Case DateNovember 29, 2012
Citations(2013), 555 A.R. 367 (PC);2013 ABPC 31

Durunna v. Air Can. (2013), 555 A.R. 367 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.026

Obioha Nnamdi Durunna (plaintiff) v. Air Canada (defendant)

(P1290301793; 2013 ABPC 31)

Indexed As: Durunna v. Air Canada

Alberta Provincial Court

Skitsko, P.C.J.

February 8, 2013.

Summary:

Durunna contracted with Air Canada to ship 10 laptop computers to Nigeria. The laptops disappeared en route. Durunna sued Air Canada for the loss. Air Canada submitted that provisions of the waybill and the Montreal Convention applied to limit its liability.

The Alberta Provincial Court found that Durunna had not been given reasonable notice of the limitation of liability provisions and the Montreal Convention did not apply to limit Air Canada's liability. The court awarded Durunna damages of $4,800.

Aeronautics - Topic 5127

Airlines - Carriage of goods - Liability - Statutory limitations - Notice of - Durunna contracted with Air Canada (AC) to ship 10 laptop computers to Nigeria - Durunna attended at AC's Air Freight Offices and a waybill was started - When Durunna told the AC agent that the goods were valued at $4,000, the agent directed Durunna to complete an Export Declaration Form - When the waybill was completed, it made no reference to the value of the goods - The front of the waybill contained a clause directing the shipper's attention to a notice concerning the carrier's limitation of liability - The back of the waybill contained a notice concerning the carrier's limitation of liability under the Montreal Convention - Durunna was not asked to sign the waybill or given an opportunity to read it - He was not asked if he wanted to purchase insurance - The laptops disappeared en route - Durunna sued AC for damages, arguing that he had not been given reasonable notice of the limitation of liability terms in the waybill - AC submitted that the Montreal Convention was intended to dispense with the notice requirements regarding limitation of liability - The Alberta Provincial Court rejected AC's argument - At common law, if a party sought to rely on a limitation of liability clause, it had to do what was reasonably sufficient to bring the clause to the other party's attention - The Montreal Convention had to be interpreted in light of the common law governing carriers - Exclusion of the notice requirement in the legislation simply supported the application of the common law - If the drafters of the Convention intended to eliminate the notice requirement and override the common law, they would have made an express statement to that effect - See paragraphs 33 to 41.

Aeronautics - Topic 5127

Airlines - Carriage of goods - Liability - Statutory limitations - Notice of - Durunna contracted with Air Canada (AC) to ship 10 laptop computers to Nigeria - Durunna attended at AC's Air Freight Offices and a waybill was started - When Durunna told the AC agent that the goods were valued at $4,000, the agent directed Durunna to complete an Export Declaration Form - When Durunna returned, the waybill was completed - It made no reference to the value of the goods - The AC agent put "NCV" (no customs value) and "NVD" (no value declared) on the waybill - The front of the waybill contained a clause directing the shipper's attention to a notice concerning the carrier's limitation of liability - The back of the waybill contained a notice concerning the carrier's limitation of liability under the Montreal Convention - Durunna was not asked to sign the waybill or given an opportunity to read it - It was given to him after the transaction was completed - He was not asked if he wanted to purchase insurance - The laptops disappeared en route - Durunna sued AC for damages, arguing that he had not been given reasonable notice of the limitation of liability terms in the waybill - AC submitted that the Montreal Convention applied to limit its liability, and the terms in the waybill provided sufficient notice - The Alberta Provincial Court held that AC had not given Durunna reasonably sufficient notice of the limitation of liability under the Montreal Convention - The acronyms NCV and NVD were not defined on the waybill - Given this, Durunna had no way of knowing that the waybill indicated he had not made a declaration of the value of the goods - Even if he had been given the opportunity to read the waybill, he would have no way of knowing that AC's liability would be limited in any subsequent claim that he made - The use of undefined acronyms made the contract vague and ambiguous - To enforce the limitation of liability provisions would be unconscionable - Durunna was awarded $4,800 as damages (value of lost goods plus $800 shipping fee) - See paragraphs 42 to 55, 59 to 63 and 80 to 87.

Carriers - Topic 6252

Liability for goods - Limitations - Statutes - Shipping - Whether statute applies - Durunna contracted with Air Canada (AC) to ship 10 laptop computers to Nigeria - Durunna attended at AC's Air Freight Offices and a waybill was started - When Durunna told the AC agent that the goods were valued at $4,000, the agent directed Durunna to complete an Export Declaration Form - When the waybill was completed, it made no reference to the value of the goods - The front of the waybill contained a clause directing the shipper's attention to a notice concerning the carrier's limitation of liability - The back of the waybill contained a notice concerning the carrier's limitation of liability under the Montreal Convention - Durunna was not asked to sign the waybill or given an opportunity to read it - He was not asked if he wanted to purchase insurance - The laptops disappeared en route - Durunna sued AC for damages - AC submitted that the Montreal Convention applied to limit its liability, and Durunna needed to make a "special declaration" (Montreal Convention, art. 22(3)) in order for liability not to be limited - Article 22(3) provided that liability was limited unless a shipper (1) made a special declaration of interest in delivery at destination, and (2) paid a supplementary sum if the case so required - The Alberta Provincial Court found that Durunna did make a "special declaration" by stating both the value of the goods and the contents to the AC agent - AC never communicated that a supplementary sum was required - The absence of payment of an additional sum was therefore not determinative and the Convention limits did not apply - See paragraphs 56 to 58 and 64 to 79.

Carriers - Topic 6252

Liability for goods - Limitations - Statutes - Shipping - Whether statute applies - [See second Aeronautics - Topic 5127 ].

Carriers - Topic 6324

Liability for goods - Limitations - By contract - Whether limitation applies - [See second Aeronautics - Topic 5127 ].

Carriers - Topic 6328

Liability for goods - Limitations - By contract - Notice of limitation - [See both Aeronautics - Topic 5127 ].

Contracts - Topic 7426

Interpretation - Ambiguity - What constitutes ambiguity - [See second Aeronautics - Topic 5127 ].

Cases Noticed:

Union Steamships Ltd. v. Barnes, [1956] S.C.R. 842, refd to. [para. 33, footnote 1].

Thornton v. Shoe Lane Parking Ltd., [1971] 1 Q.B. 163, refd to. [para. 33, footnote 1].

Boutcev v. D.H.L. International Express Ltd. - see Boutchev v. D.H.L. International Express Ltd.

Boutchev v. D.H.L. International Express Ltd., [2000] A.R. Uned. 40; 2000 ABPC 1, affd. (2001), 283 A.R. 19 (Q.B.), refd to. [para. 33, footnote 2].

Koliada v. Lufthansa German Airlines, [2001] O.J. No. 2960, refd to. [para. 33, footnote 3].

Foord v. United Air Lines Inc. (2006), 407 A.R. 117; 2006 ABPC 103, refd to. [para. 37, footnote 6].

Lotepro Engineering & Construction Ltd. v. Air Canada and Canadian National Railway Co. (1981), 36 A.R. 304 (Q.B.), dist. [para. 45, footnote 13].

Aurora TV and Radio Ltd. v. Gelco Express Ltd. (1990), 65 Man.R.(2d) 145 (Q.B.), dist. [para. 51, footnote 16].

ACE Aviation Holding Inc. et al. v. Holden (2008), 240 O.A.C. 184 (Div. Ct.), refd to. [para. 60, footnote 17].

MDSI Mobile Data Solutions Inc. v. Federal Express Corp. et al. (2003), 176 B.C.A.C. 182; 290 W.A.C. 182; 2003 BCCA 9, refd to. [para. 73, footnote 30].

McColman v. Duckering's International Freight Services Inc. (2007), 424 A.R. 69; 2007 ABPC 17, refd to. [para. 74, footnote 33].

Jampen v. British Airways, [2011] J.Q. No. 4827, refd to. [para. 78, footnote 37].

Syncrude Canada Ltd. et al. v. Hunter Engineering Co. and Allis-Chalmers Canada Ltd. et al., [1989] 1 S.C.R. 426; 92 N.R. 1, refd to. [para. 80, footnote 38].

Statutes Noticed:

Carriage by Air Act, R.S.C. 1985, c. C-26, Schedule VI (Montreal Convention), art. 22(3) [para. 57].

Montreal Convention - see Carriage by Air Act, R.S.C. 1985, c. C-26, Schedule VI.

Authors and Works Noticed:

Alberta, Hansard, Legislative Assembly Debates (May 14, 1999), p. 1220 [para. 35, footnote 4].

Trembly, Timothy, Halsbury's Laws of Canada, Aviation and Space, HAV-95 [para. 46, footnote 15].

Counsel:

Dr. Obioha Durunna, on his own behalf, for the plaintiff;

Alex Mosaico (Davis LLP), for the defendant.

This matter was heard on November 29, 2012, before Skitsko, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for judgment at Edmonton, Alberta, on February 8, 2013.

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2 practice notes
  • Alberta Court says Air Cargo Liability Limits can be Broken
    • Canada
    • JD Supra Canada
    • March 14, 2013
    ...be enough to circumvent the limits that were previously considered unbreakable. The Facts The decision, reported as Durunna v Air Canada, 2013 ABPC 31, involved a Plaintiff who shipped ten laptops worth approximately $4,600.00 to Nigeria through Air Canada. The Plaintiff visited Air Canada’......
  • Morin v. United Airlines, 2016 ABPC 219
    • Canada
    • Alberta Provincial Court of Alberta (Canada)
    • April 25, 2016
    ...in adopting Articles 25 and 27 they also preserved elements of freedom of contract ." (emphasis added) [18] In Durunna v. Air Canada 2013 ABPC 31, Judge Skitsko was addressing the issue of the loss cargo delivery of the plaintiff. At paragraphs 36 and 37, he wrote: "36. Indeed, as......
1 cases
  • Morin v. United Airlines, 2016 ABPC 219
    • Canada
    • Alberta Provincial Court of Alberta (Canada)
    • April 25, 2016
    ...in adopting Articles 25 and 27 they also preserved elements of freedom of contract ." (emphasis added) [18] In Durunna v. Air Canada 2013 ABPC 31, Judge Skitsko was addressing the issue of the loss cargo delivery of the plaintiff. At paragraphs 36 and 37, he wrote: "36. Indeed, as......
1 firm's commentaries
  • Alberta Court says Air Cargo Liability Limits can be Broken
    • Canada
    • JD Supra Canada
    • March 14, 2013
    ...be enough to circumvent the limits that were previously considered unbreakable. The Facts The decision, reported as Durunna v Air Canada, 2013 ABPC 31, involved a Plaintiff who shipped ten laptops worth approximately $4,600.00 to Nigeria through Air Canada. The Plaintiff visited Air Canada’......

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