By SHAWN K. FAGUY
Notice periods for claims against motor carriers in the Province of Quebec can be problematic. Cargo interest needs to know when to give notice to preserve its rights and the motor carrier needs to know when it has a basis to deny the claim on the grounds of lack of proper notice. The purpose of this article is to provide a plain and simple explanation of the requirements of article 2050 of the Civil Code of Quebec.
As a preliminary comment, it is worth noting that despite the attempt of article 2050 C.C.Q. to legislate prescriptive periods against all carriers, carriage by rail, air or sea falls outside the jurisdiction of the Provincial Legislator; therefore, article. 2050 C.C.Q. only applies to motor carriage.
Article 2050 C.C.Q. sets forth two prescriptive periods to provide notice to motor carriers. The first prescriptive period applies when carried property is delivered and requires that notice be provided within 60 days after the delivery of the carried property regardless of whether any damage is apparent. The recent decision of the Quebec Court of Appeal of La cooperative féderie du Québec v. Les Vollailes Gilles Lafortune Inc., (REJB 2007 – 125029) has confirmed that the failure to issue a written notice within this prescriptive period will defeat a cause of action against a motor carrier irrespective of whether a bill of lading was issued in accordance with Provincial carriage regulations.
The second notice period contemplated by article 2050 applies in the event that the carried property is not delivered. In the case of non-delivery, a notice must be provided to the carrier within nine months after the date on which the carried property was sent. While the Court of Appeal decision above did not deal with this second prescriptive period, claimants and carriers should treat it as absolute. A claimant must then ask the questions:
1) to whom must the notice be sent;
2) who must send it; and
3) how the notice should be sent.
In answer to the first question, Quebec law stipulates that notice must be sent to the carrier, the sub-carriers and the successive carriers, as the case may be.
In contrast with common law jurisdictions, article 2035 C.C.Q. enables sub-carriers to be deemed parties to the initial contract of transportation with a shipper. The impact of article 2035 C.C.Q. is complicated and has far-reaching effects that will not be dealt with here given the scope of this article. In the recent Court of Appeal decision of Bombardier Produits Récréative Inc. v. Les entreprises Express G.Y.C. Inc. et al. (REJB 2006 – 111280) the Quebec Court of Appeal has confirmed that a notice under article. 2050 C.C.Q. must be provided to each carrier and each sub-carrier that is deemed party to the contract of carriage in virtue of article 2035 C.C.Q. The failure to do so will prove fatal as against the un-notified carrier or sub-carrier as the case may be.
Secondly, concerning who must provide notice, the Court of Appeal in the Bombardier case cited above ruled that the requisite notice could be provided by a third party acting on behalf of a claimant. The Court of Appeal specified that the notice sent to the carrier permitted it to identify the contract between the parties, the date of the theft, the description of the stolen items and the amount of the claim and thus satisfied the purpose of A. 2050 C.C.Q., even though the requisite notice was not sent by the claimant itself.
Thirdly, although neither article 2050 C.C.Q. nor the case law stipulates how in fact notice must be given, prudence would dictate that notification of loss or damage should be made in writing. Moreover, proof of the sending of the notice and of receipt may be relevant if notice becomes an issue. As such, a claimant should always give consideration to sending its notice by registered mail or by fax or email in conjunction with ordinary post along with proof of receipt in the case of a fax transmission or by email.
To recap, a claimant or party acting on behalf of a claimant must provide a notice to all carriers and sub-carriers that the claimant wishes to pursue for damage to or loss of carried property. In the event that the carried property is delivered, this notice must be provided 60 days after delivery, irrespective of whether the loss is apparent. In the event of non-delivery, the notice must be sent within nine months after the date on which the carried property was sent.
This article is provided for information purposes only and does not constitute a legal opinion. Sproule Faguy is a Limited Liability Partnership specializing in insurance, transportation, civil and commercial litigation
- THE CHARTWELL DECISION REVISITED: ITS EFFECT ON THE LIABILITY OF SHIP’S AGENTS AND BROKERS
- Inherent Vice in Marine Insurance Law: The Case Of the “Bengal Enterprise” T.M. Noten B.V. V. Paul Charles Harding