5TH ANNUAL CARGO RECOVERY CONFERENCE – MONTRÉAL, QC PRACTICAL ASPECTS OF CANADIAN RECOVERY LAW: OVERVIEW AND NEW CASE LAW UPDATE 5TH ANNUAL CARGO RECOVERY CONFERENCE – MONTRÉAL, QC JUNE 20, 2016 UNIVERSITY CLUB MARC DE MAN, Partner DE MAN, PILLET Barristers and Solicitors 2020 Boul. Robert-Bourassa, Suite 1920 Montreal, Quebec H3A 2A5 CANADA Telephone: (514) 985-2262 Fax: (514) 844-0371 E-mail: mdeman@demanpillet.com Website: www.demanpillet.com

INTRODUCTION Canada as a privileged jurisdiction - its legal system is derived from two legal traditions: English Common Law and European Continental Civil law.

INTRODUCTION This coexistence of legal systems gives rise to four legal remedies to claimants who which to enforce their cargo claims: 1) The Action in Rem 2) The Sistership Arrest 3) The Mareva Injunction 4) The seizure before judgment

PART I : LENGTH OF CARGO CASES, COST IN FEES AND EXPENSES

PART II : HOW QUICKLY DOES AN UNDERWRITER NEED TO ACT? In Maritime matters: Canada is subject to the Hague Visby Rules. Time for suit: 1 year from the delivery of the goods OR 1 year from the date the goods should have been delivered. Notice of loss must be provided

PART II : HOW QUICKLY DOES AN UNDERWRITER NEED TO ACT? In Air carriage: Limitation period for bringing suit is 2 years from either: Date of arrival of the carrier OR Expected date of arrival Date on which the carriage stopped Notice of loss to be provided either: 14 days from the date of receipt of the goods In a case of delay, 21 days from the date on which cargo should have arrived.

PART II : HOW QUICKLY DOES AN UNDERWRITER NEED TO ACT? For road carriage: Limitation period depends on two factors: On nature of carriage – either intraprovincial or extra-provincial. AND On the law applicable to the contract of carriage Requires determing which laws govern the contract of carriage. Provinces have varying limitations periods: QUEBEC: 3 YEARS ONTARIO: 2 YEARS. Provincial law also provides for different notification periods.

PART II : HOW QUICKLY DOES AN UNDERWRITER NEED TO ACT? For warehousing: A matter of provincial law = governed by the laws of each given province. THEREFORE. Applicable time bar is determined by each province. Provinces have varying limitations periods: QUEBEC: 3 YEARS ONTARIO: 2 YEARS.

PART II : HOW QUICKLY DOES AN UNDERWRITER NEED TO ACT? For rail carriage: Time to sue railway carrier is one year. Notice against the carrier should be provided within 4 months of the loss.

PART III : WHAT ARE THE TYPICAL LIMITS OF LIABILITY FOR EACH MODE OF TRANSIT? Limits of liability for Ocean carriers: Stated in the Hague Visby Rules 666,67 SDRs per package or unit OR 2 SDRs per kilogram of gross weight 1 SDR = CAD$1.82

PART III : WHAT ARE THE TYPICAL LIMITS OF LIABILITY FOR EACH MODE OF TRANSIT? Limits of liability for Air carriers: Limitation is 19 SDRs per kilograms. (approx. CAD$34.58/KG) Limitation is extremely difficult to break.

PART III : WHAT ARE THE TYPICAL LIMITS OF LIABILITY FOR EACH MODE OF TRANSIT? Limits of liability for Motor carriers: In Quebec carrier limits its liability to 4,41/KG. Limitation applies unless the shipper has declared a higher value on the face of the Bill of Lading. Limitation can be broken when carrier has acted grossly negligently.

PART III : WHAT ARE THE TYPICAL LIMITS OF LIABILITY FOR EACH MODE OF TRANSIT? Limits of liability for Warehousing: No limitation set by law. Limitation can be contractually provided for by the parties.

PART III : WHAT ARE THE TYPICAL LIMITS OF LIABILITY FOR EACH MODE OF TRANSIT? Limits of liability for Rail carriers: Governed by Canada Transportation Act Act provides that railway companies cannot limit liability to shipper except by means of written agreement or confidential rate contract signed by the shipper.

PART IV : PECULIAR ASPECTS OF CANADA’S CARGO CLAIM JURISPRUDENCE Aspect #1: Concurrent jurisdiction Aspect #2: Canadian Court’s jurisdiction Aspect #3: Ease of conducting arrest proceedings in Canada

PART V : NEW DEVELOPMENTS IN CANADIAN CARGO CLAIM JURISPRUDENCE

PART V : NEW DEVELOPMENTS IN CANADIAN CARGO CLAIM JURISPRUDENCE Westshore Terminals Limited Partnership v. Leo Ocean, S.A., 2014 FCA 231. Decision from the Federal Court of Appeal Concerns sistership arrest in Canada. A & A Trading Ltd. v. DIL’s Trucking Inc., 2015 ONSC 1887. Decision from the Superior Court of Ontario. Pertains to road carriage, deals specifically with the issue of declaration of value.