October 2003

Court of Appeal Declines to Determine Whether Trial Judge Wrong in Ruling Fedex Terms Offended S. 23 of the Warsaw Convention

In MDSI Mobile Data Solutions Inv. v. Federal Express Corp., [2003] B.C.C.A. 9 (B.C.C.A.) a shipper declared the value for carriage on a FedEx airwaybill which referred to the Warsaw Convention but as well incorporated contractual terms (including its Service Guide) which included a maximum limitation amount of $50,000. The shipment travelled from Vancouver to Memphis in the U.S.A. FedEx argued that the limitation under the Warsaw Convention of $11,427 applies. The shipper claimed for the declared value of $214, 857.41. The trial judge ruled that the contractual terms in the Guide offended the Warsaw Convention and was void. The Court of Appeal held that on a reading of the Service Guide there was no maximum limitation when the Warsaw Convention applied. The Court of Appeal found it unnecessary to reach a definite conclusion as to whether the trial judge was correct in ruling that the contractual terms in the Guide offended section 23 of the Warsaw Convention rendering such terms null and void. Section 23 provides that any provision tending to relieve the air carrier of liability or fix a lower limit than that which is laid down by the Convention is null and void.

Rui Fernandes

This newsletter is published to keep our clients and friends informed of new and important legal developments. The articles are not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.