       Third District Court of Appeal
                                State of Florida

                           Opinion filed October 7, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D14-2994
                          Lower Tribunal No. 07-45654
                              ________________


                        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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