There are many lawsuits filed against carriers on account of delivery of damaged goods, or failure to make delivery. Indeed, road carriers bear an obligation of result; they must deliver the goods to the receiver in the same condition as when received from the shipper. All damage caused to the cargo or loss while in transit will trigger their liability.
However, in accordance with Section 2050 of the Civil Code of Quebec, carriers have the right to receive a notice for having caused damage to the goods or for not having delivered the goods. All interested party may send this notice of loss to a carrier, and all subsequent lawsuits undertaken against the latter will depend on the timely issuance and sufficiency of the notice. Consequently, in the field of carriage, it is very important to know all terms prescribed by the law in order to send the notice in due time, as well as the essential information that must be included in the said notice, so as to ensure that any prospective lawsuit will not be dismissed.
In the field of transportation law, there are two important delays that must be remembered: first, in case of damage to delivered goods, the notice of loss must be sent within the period of sixty (60) days following the delivery of said goods. Secondly, when the cargo is not delivered due to loss, destruction or theft, the notice of loss must be sent within the period of nine (9) months following the date on which the said cargo was shipped. However, it is important to observe that, in each case, it is not necessary to send a notice when a lawsuit is initiated within those delays.
What is the required information that must be included in the notice and which form must it take? The Superior Court and the Court of Appeal of Quebec have ruled that the notice must be a written notice. A telephone conversation or person-to-person communication is not sufficient to prove that the carrier has indeed been informed of the loss. As for the information that must be included in the said notice, it is quite basic: the name of the shipper, the number of the bill of lading, the description of the goods, the nature and the date of loss. In fact, the notice must enable the carrier to identify the shipment and prepare its defence.
In the case where numerous carriers succeed to one another in the carriage of the goods, all carriers involved have the right to receive a notice in accordance with the Civil Code of Quebec, and so, even if different carriers are being sued within the scope of the same lawsuit. Furthermore, all carriers have the right to this notice of loss, whether or not they issued a bill of lading when they took possession of the cargo. Whether raising contractual or extracontractual liability, the notice of loss is always required.
What becomes of the lawsuit if the notice is not sent to the carrier, is not sent within the prescribed period of time, or is insufficient? In all those cases, the Court of Appeal has ruled that the lawsuit is not receivable. Indeed, if a carrier can establish that it has not received a written notice to which it is entitled pursuant Section 2050 of the Civil Code of Quebec, the lawsuit filed against it will be dismissed as the right of action will have been lost.
The notice of loss is therefore very important, for it determines if the action filed against the carrier may be undertaken or not. Nevertheless, it is necessary to distinguish the real carrier from the simple load broker who, in fact, does not perform any carriage of goods. The load broker is not entitled to receive the notice of claim set in Section 2050 C.C.Q., since it is not bound to the obligation of the carrier.
One may distinguish the load broker from the carrier numerous factors. While facts must be appreciated on a case-by-case basis in order to determine if a party acted as a carrier or a broker, the latter is, in general, an agent who commits to organizing the carriage without accepting to carry the goods.
Finally, as to the period of time to initiate a lawsuit, the plaintiff has three years from the time of the occurrence of the loss of cargo or of the finding of the damage to the cargo.
In all, this communiqué is definitely a case where it is necessary to give notice!