Mas & Sons Jardiniers, Ltd. v. Florida West International Airways, Inc.

Third District Court of Appeal
State of Florida
Opinion filed October 7, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2994
Lower Tribunal No. 07-45654
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Mas & Sons Jardiniers, Ltd.,
Appellant,
vs.
Florida West International Airways, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Stanford Blake,
Judge.
Quintairos, Prieto, Wood & Boyer, and James J. McNally, for appellant.
Kondla & Associates, P.A., and M. Emelina Mejer-Kondla, for appellee.
Before ROTHENBERG, SALTER, and EMAS, JJ.
ROTHENBERG, J.
The plaintiff below, Mas & Sons Jardiniers, Ltd. (“Mas & Sons”), a
Canadian grower, packer and shipper of vegetables, appeals the trial court’s order
granting summary judgment in favor of the defendant/appellee Florida West
International Airways, Inc. (“FWIA”). Because the trial court correctly found that
the undisputed facts showed that Mas & Sons did not provide timely notice to
FWIA of its complaint under the Montreal Convention (Convention for the
Unification of Certain Rules for International Carriage art. 31 (3-4), May 28, 1999,
S. Treaty Doc. No. 106-45 (“Montreal Convention”)), we affirm.
Mas & Sons alleged in its complaint against FWIA that it sustained damages
after FWIA allegedly failed to timely release fresh vegetables it shipped by air
from Guatemala and Costa Rica to Miami. According to Mas & Sons, the
vegetables were shipped by air and were ready to be picked up and transported by
truck on December 21, 2006; Mas & Sons’ broker, PBB Global Logistics, tendered
the requisite checks to FWIA in U.S. funds on December 22, 2006; and FWIA
improperly refused to accept the checks based on its mistaken belief that they were
not in U.S. funds; as a result, the vegetables sat in FWIA’s warehouse for six days,
until they were finally released on December 27, 2006. Based on this delay, Mas
& Sons called for a USDA inspection which revealed that the vegetables were
exhibiting signs of early stages of decay. Thus, when Tornado Express, a trucking
company employed by Mas & Sons, picked up the vegetables on December 27,
2006 to transport them to Quebec, Canada, its drivers signed the airway bills
“Receive/Protest.” By the time the vegetables were delivered in Quebec on
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December 29, 2006, they were shriveling and turning brown, and Sobeys, Mas &
Sons’ buyer, refused to buy the vegetables at the agreed-to price. Some of the
vegetables had to be destroyed and the remainder was sold to Sobeys at a reduced
price.
Steve Berthelet, Mas & Sons’ corporate representative, submitted a sworn
affidavit and provided sworn deposition testimony, wherein he avers that he
personally observed the condition of the vegetables when they arrived in Quebec
on December 29, 2006; he contacted FWIA the following week to lodge a
complaint about the damaged shipment; and on January 9, 2007, Freddy Fortich of
FWIA acknowledged the complaint and sent an e-mail to Mas & Sons with a claim
form. On January 24, 2007, Mas & Sons submitted the completed claim form to
FWIA. Thus, the first written notice of Mas & Sons’ damages was faxed to FWIA
twenty-eight days after Tornado Transport received the cargo from FWIA.
The issues below were: (1) whether the Montreal Convention applies,
which contains a notice provision for damage to cargo during international carriage
by air; and (2) whether Mas & Sons provided timely notice to FWIA. The trial
court decided these issues in favor of FWIA, finding that the Montreal Convention
applies, and that Mas & Sons failed to comply with Article 31 of the Montreal
Convention. We agree with the trial court that the Montreal Convention applies to
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the shipments involved in this litigation, and that, as a matter of law, Mas & Sons’
notice to FWIA was insufficient under the Montreal Convention.
Article 31 of the Montreal Convention requires that a written complaint be
made to the carrier within fourteen days from the date of receipt of the cargo. Mas
& Sons provided proof by way of sworn testimony and written documents that
Mas & Sons signed for the subject cargo under written “protest” after the negative
inspection which showed damage to the vegetables on December 27, 2006. The
following week, Mas & Sons discussed its complaint with FWIA, and on January
9, 2007, FWIA acknowledged Mas & Sons’ oral complaint and sent Mas & Sons a
claim form to fill out. Mas & Sons returned the completed written claim form to
FWIA on January 24, 2007.
Mas & Sons contends that these facts present a factual issue regarding
whether its notice to FWIA was timely, thereby precluding summary judgment on
that issue. We disagree. It is undisputed that although Mas & Sons accepted two
shipments under protest, verbally notified FWIA that it wished to file a complaint,
and FWIA provided Mas & Sons with complaint forms to assist Mas & Sons with
its obligation to submit its complaints in writing to FWIA, Mas & Sons waited
until well-past the fourteen-day deadline to submit a written complaint form to
FWIA. It is also undisputed that the only written complaint ever received by
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FWIA was with respect to the cargo identified under waybill AWB 6530 and that
no written complaint was ever submitted for the cargo under waybill AWB 2114.
Article 31 of the Montreal Convention is clear and unambiguous. A
complaint regarding carriage by air must be in writing within the time parameters
specified, and failure to comply with the written notice requirement precludes
action against the carrier absent fraud. Montreal Convention art. 31 (3-4). Mas &
Sons has not asserted any fraud against FWIA. The purpose of the written notice
requirement under Article 31 is to adequately inform the carrier of the nature of the
damages. Eli Lilly & Co. v. Air Exp. Int’l, USA, Inc., 602 F. Supp. 2d 1260, 1270
(S.D. Fla. 2009) aff’d in part, vacated in part, rev’d in part, 615 F.3d 1305 (11th
Cir. 2010). Timely written notice is required even if an agent of the carrier is
aware of the damage. Onyeanusi v. Pan Am, 952 F.2d 783 (3d Cir. 1992); see also
Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485 (S.D. N.Y. 2009)
(holding that actual notice by a defendant airline is not a substitute for the requisite
written notice); Ewig Int’l Marine Corp. v. Am. Airlines, Inc., 914 F. Supp. 1543
(N.D. Ill. 1995) (holding that actual or constructive notice on the part of the airline
does not satisfy the timely written notice requirement).
Because it is undisputed that Mas & Sons failed to timely comply with
Article 31 of the Montreal Convention, the trial court correctly determined as a
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matter of law that no action may lie against the carrier, FWIA, and therefore
properly granted summary judgment in favor of FWIA.
Affirmed.
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