AIR LAW |
Green Computer in Sweden AB v. Federal Express Corp.
T-452-00
2002 FCT 1015, Morneau P.
27/9/02
10 pp.
Action for damages due to loss of cargo--Contract for carriage by air--Plaintiffs seller and buyer of computer hardware--Defendants contracting with plaintiffs to carry two packages from Sweden to Markham, Ontario pursuant to FedEx International Air Waybill--Only one package arriving --Defendants unable to locate package or copy of waybill-- Action allowed in part--Defendants entitled to limit liability purusant to art. 22 of Warsaw Convention--Time limit for complaint pursuant to art. 26 of Convention relating to damaged cargo not applicable in present situation of loss of cargo--Nothing in FedEx International Air Waybill preventing defendants from availing themselves of Convention in order to limit responsibility--No proof of willful misconduct by defendants--Carriage taking place in performance of contract for carriage by air--Plaintiffs not rebutting presumption that loss occurred during carriage by air in accordance with art. 18(3) of Convention--No proof of theft--Plaintiff wrongly inferring that because no proof cargo stolen by third party, cargo incorrectly delivered elsewhere, or cargo still in defendant's possession, cargo must have been stolen by defendants' employee--Convention for the Unification of Certain Rules Relating to International Carriage by Air, R.S.C., 1985, c. C-26, Sch. I, Art. 18, 25 (as am. by R.S.C., 1985, c. C-26, Sch. III, Art. XIII), 26 (as am. idem, Art. XV).