2016 QCCQ 2898, 2016 QCCQ 2898

Zlatic c. Export Depot 2016 QCCQ 2898 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-142596-149 DATE: April 7, 2016 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ ZORAN ZLATIC Plaintiff v.

EXPORT DEPOT -and- JONATHAN ZEKRY Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Zoran Zlatic sues Defendants Export Depot International R.H. Inc. (" Export Depot ") and Jonathan Zekry for damages resulting from the tardy delivery of a commercial container of goods sent from Montreal, Canada to Belgrade, Serbia. Mr.

Zlatic, who is an individual and acted for personal purposes, entrusted the care and transportation of the container, which contained personal effects and household goods, to Export Depot. According to Export Depot, the container was first scheduled to arrive in Belgrade on July 11, 2013. In fact, it arrived two months later, namely on September 12, 2013. Mr.

Zlatic claims that he suffered $7,990.99 in damages that he reduces to $7,000 to be able to sue in the Small Claims Division of the Court of Quebec. [ 2 ] Expert Depot denies any liability stating that it acts strictly as an agent or mandatary for transportation companies and that the exclusion clauses in its contact shield it from Mr. Zlatic’s claim. Questions in issue 1) Did Expert Depot breach the terms of its contract with Mr. Zlatic? 2) If so, what damages is Mr. Zlatic entitled to obtain? Context [ 3 ] In May 2013, Mr.

Zlatic and Export Depot had preliminary discussions regarding the transport from Montreal, Canada to Belgrade, Serbia of personal belongings of Mr. Zlatic by way of commercial container to be transported by ship. From the documentation filed into Court, it is clear that Export Depot knew that Mr. Zlatic was a private citizen and wished to transport only his personal effects. It was also made clear by Mr. Zlatic that he would have to go to Belgrade to receive and unload the belongings being sent. [ 4 ] On May 27, 2013, Export Depot issued a sale order to Mr. Zlatic for the price of $5,200 [1] .

The "terms" mentioned in the order state:

"Standard container Montreal to Belgrade Insurance total loss 60,000$ Terms Contract: Exclusive of possible third party charges, which may include but are not limited to, customs formalities, destination port fees/handling, duties, local taxes, security fees, as well as demurrange and/or detention, and are subject to change without notice." [ 5 ] On May 28, 2013, the booking confirmation with the carrier Hapag-Lloyd (Canada) Inc. (“ Hapag-Lloyd ”) was made by Export Depot and sent to Mr. Zlatic [2] . The booking confirmation stated that the "ETA" (Expected Time of Arrival) was July 11, 2013.

The fine print at the end of this document states as follows: "Pls note the ETA on the booking confirmation is an estimate". [ 6 ] On June 2, 2013, Mr. Zlatic advised Export Depot that he was leaving that day in order to be in Belgrade for the delivery [3] . [ 7 ] On June 2, 2013, as scheduled, the ship carrying the container arrived at Cagliari on the island of Sardinia in the Mediterranean. [ 8 ] On July 3, 2013, it arrived in Constanta, Romania. [ 9 ] Mr.

Zlatic questions whether this was a correct routing as it is approximately 859 km away from Belgrade, as opposed to closer ports in Montenegro (Bar) or Croatia. In Costanta, the plan was to transfer the container to a barge and bring it into Belgrade via waterway. Accordingly to that plan, per an e-mail sent by Export Depot to Mr. Zlatic on June 26, 2013, the expected date of arrival by waterway on the barge was July 10, 2013 [4] . [ 10 ] However, the container did not arrive on that date. Mr.

Zlatic made many calls to Export Depot to obtain information but did not receive any news [5] . [ 11 ] According to the initial

schedule supplied by Export Depot to Mr. Zlatic, the departure of the container from Constanta on the barge was to take place on July 3, 2013 [6] . [ 12 ] On or around July 19, 2013, since he was not getting any answer from Export Depot, Mr. Zlatic made inquiries with Hapag- Lloyd in Belgrade. He was then informed that there was no scheduled departure of barges from Constanta to Belgrade for at least the next two weeks and that the next departure could not be confirmed [7] . [ 13 ] Mr. Zlatic stayed at various hotels from July 11, 2013 to September 3, 2013, namely for seven (7) weeks.

Even after that time, he could not get a firm answer as to the revised expected time of delivery and Export Depot and Hapag-Lloyd refused to consider rerouting the container. [ 14 ] On September 3, 2013, Mr. Zlatic returned to Montreal. [ 15 ] On September 11, 2013, Mr. Zlatic was advised that the container had finally arrived and would be unloaded on September 12, 2013 [8] .

[ 16 ] On September 9, 2013, Mr. Zlatic then took a plane back to Belgrade and took possession of his belongings. [ 17 ] Mr. Zlatic claims for the following damages [9] :

a) Air fare for 2 nd flight (return) to Belgrade in September 2013 $1,100.45

b) Fees for handling and release from terminus $307.67

c) Loss of deposit on prepaid vacation July 15 – August 15, 2013 $750.00 d) (2 nd ) Transportation cost from Belgrade to Zlatibor (the intended end destination for the contents of the container) $504.90

e) Hotel accommodation and food for period of preparation to receive container (May and June 2013) $552.92

f) Hotel accommodation and food for period of preparation to receive container (March and April 2013) $2,256.08

g) Loss of enjoyment of 3 months of summer, inconvenience, stress, lost time, aggravation $1,527.98 [10] Total: $7,000.00 Analysis and Decision 1) Did Expert Depot breach the terms of its contract with Mr. Zlatic? [ 18 ] Export Depot rejects responsibility for the claim on the basis that it only acted as an agent or mandatary and that various documents [11] , incorporated by reference into the contract, excluded any claim of liability for delays, rerouting or damages against Export Depot. [ 19 ] The Court does not share that view.

Article 1435 of the Civil Code of Quebec ("C.C.Q.") reads as follows: 1435. An external clause referred to in a contract is binding on the parties. In a consumer contract or a contract of adhesion, however, an external clause is null if, at the time of formation of the contract, it was not expressly brought to the attention of the consumer or adhering party, unless the other party proves that the consumer or adhering party otherwise knew of it. [ 20 ] These various documents containing terms, conditions, exclusions and disclaimers were never part of any document signed by Mr.

Zlatic nor were these documents ever even remitted by Export Depot to Mr. Zlatic before he entered into the contract. The contract in issue is not one between commercial parties. Mr. Zlatic is a consumer and he made that very clear to Export Depot before entering into the contract. Accordingly, the documents containing standard terms, including clauses of limitation of liability and exclusion of liability regarding delays and damages, constitute external clauses. Pursuant to

Article 1435 C.C.Q., in a consumer contract, these clauses are null unless they were expressly brought to the attention of the consumer. [ 21 ] According to the evidence, it is clear that neither the existence, content, nor import of these clauses were brought to the attention of Mr. Zlatic before the contract was concluded. [ 22 ] Therefore, the Court must exclude them from consideration regarding the respective rights and obligations of the parties under the contract.

[ 23 ] In light of the above, Export Depot was not a mandatary or agent but a provider of services to Mr. Zlatic and the contract entered into at the time is governed by the provisions on contract for services found at articles 2098 and following of the Civil Code of Quebec . [ 24 ] Apart from these suppletive provisions, the contract also includes the terms above that were mentioned on the sale invoice [12] . [ 25 ] In light of the evidence, Articles 2100 and 2102 C.C.Q. are particularly relevant: 2100.

The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract . Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force. 2102.

Before the contract is entered into, the contractor or the provider of services is bound to provide the client , as far as circumstances permit , with any useful information concerning the nature of the task which he undertakes to perform and the property and time required for that task . [Emphasis added.] [ 26 ] In accordance with

Article 2100 C.C.Q., Export Depot had the obligation to ensure that the service provided was in conformity with the contract. Pursuant to

Article 2102 C.C.Q., Export Depot also had an obligation to provide useful information to Mr. Zlatic concerning the nature of transportation of the container and the time required to complete that task. [ 27 ] As Export Depot acted as a provider of services, it was required to ensure that the contract was completed within the specified time. Export Depot cannot escape or refute liability by simply stating that it was its sub-contractor Hapag-Lloyd that failed to respect the terms of the contract.

Export Depot chose its sub-contractor and must respond for its breach, in the event that there was a breach. [ 28 ] Depending upon the terms of agreement between Export Depot and Hapag-Lloyd, the latter could have been sued by the former in warranty. This was at first done but Export Depot dropped its suit against Hapag-Lloyd before the date of the trial. [ 29 ] According to the terms of the contract at bar, Export Depot promised to deliver the container to Belgrade by July 11, 2013. That was not a guaranteed date. It was an estimate.

As Export Depot confirmed after the events, it was an "approximate date" [13] . [ 30 ] In order to determine whether there has been a breach of the contract, the Court must also weigh whether Export Depot carried out its obligation under

Article 2102 of the Civil Code of Quebec to properly inform Mr. Zlatic of the time required for the task and the risks associated therewith, namely that the date was not firm. [ 31 ] According to the preponderance of the evidence, Mr. Zlatic was clear with Export Depot he was going to go to Belgrade to pick up and unload the container and that he would be leaving several days before the estimated time of arrival. However, Export Depot failed to inform Mr. Zlatic that the date provided might not be achieved and that there could be a delay in delivery. [ 32 ] Export Depot should have counselled Mr.

Zlatic that it was unadvisable to plan a trip and rely on delivery on the expected date. In that context, Export Depot should have advised Mr. Zlatic to be flexible and to have a back up plan in the event of a delay to deliver. That information and advice was not given and a risk of delay was not even mentioned. [ 33 ] As the date of expected delivery was an estimate, the Court must determine the date at which Export Depot will be considered in breach.

[ 34 ] Based upon the evidence and the circumstances, and in light of the absence of any advice or counsel as to the possibility of delay, the Court considers that an additional period of three (3) weeks from the expected date of arrival would be the outside limit after which the promised deadline would be breached. [ 35 ] Therefore, unless Export Depot made proof of another valid ground of defence, Export Depot was in breach of contract twenty- one (21) days after July 11, 2013, namely after August 2, 2013. [ 36 ] Export Depot did not put forward any other valid ground of defence with respect to its obligation to deliver by the estimated date.

Export Depot provided no explanation or factual justification why Mr. Zlatic’s container remained in the port of Constanta for two (2) months without departure. In the absence of any explanation, the Court must conclude that such delay was unjustified and caused by negligence, including improper terms of logistics chosen by Export Depot or its subcontractor. [ 37 ] Export Depot raised the possibility that one factor could be that the Port of Belgrade went bankrupt [14] . The proof of that allegation was insufficient as was the causal link to the actual delay. The Port of Belgrade was always in operation [15] .

Furthermore, in light of the proof, it is clear that the blockage and cause for the delay was not in Belgrade at all but instead at Constanta in Romania. Export Depot made no proof that the delay was attributable to a superior force [16] . 2) If so, what damages is Mr. Zlatic entitled to obtain? [ 38 ] In light of the above, damages suffered by Mr. Zlatic that occurred after August 1, 2013, should be compensated, unless they were otherwise validly excluded by the terms of the contract.

The Court will therefore review the nature of the damages claimed. [ 39 ] With regard to item (a) ($1,100.45 [17] ) of air fare for return flight, this is well founded. This charge occurred in September, 2013 and was required since Mr. Zlatic could not wait in Belgrade or Zlatibor (his home town) indefinitely. [ 40 ] With regard to item (b), this cost does not relate to the tardy delivery. It is a handling fee at the port of destination. Such charge is specifically excluded by the terms mentioned on the invoice, Exhibit P-3.

This amount will not be granted. [ 41 ] With regard to item (c), part of this amount was incurred after August 1, 2013. However, this claim relates to the loss of a deposit on a prepaid family vacation for Mr. Zlatic. As we are in the sphere of contract, only foreseeable damages can be claimed from the debtor.

Article 1613 C.C.Q. reads as follows: 1613. In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the nonperformance. [ 42 ] Mr. Zlatic did not inform Export Depot before departure that he was planning on taking a family vacation soon after picking up the container. The Court does not consider that such an expense by Mr.

Zlatic is foreseeable on the part of Export Depot. Accordingly, that amount will not be granted. [ 43 ] With regard to item (d), Mr. Zlatic states that he had to pay twice for the costs of transportation of the content of the container from Belgrade to his home town of Zlatibor. He files the receipts to prove it [18] . As this supplemental charge of $504.90 occurred after August 1, 2013 (namely on September 20, 2013), it will be granted. [ 44 ] With regard to the hotel, food and accessory charges at items (

e) and (f), they relate to costs incurred before August 1, 2013 (and even before July 11, 2013) and will be dismissed for that reason. [ 45 ] With regard to item (

g) stress, loss of time and inconvenience, an amount attributable to the period after August 1, 2013 is

justified. Considering the extreme grief and the lack of any proper explanation for the delay given by Export Depot, the Court arbitrates that the amount of $1,500 should be granted in that regard. [ 46 ] Mr. Zlatic also requests Court costs. In light of the evidence, the costs would be the Court Stamp fee ($169) and the cost of sending registered letters ($22) [19] to Export Depot which total $191. That amount will also be granted. [ 47 ] In light of the admission of Export Depot and the proof [20] that the legal entity of Export Depot is Export Depot International R.H.

Inc., judgment will be rendered only against that Defendant. There was no explanation given by Mr. Zlatic to justify the claim made against the representative of Export Depot, namely Jonathan Zekry. That claim will be dismissed, without costs. FOR THESE REASONS, THE COURT: GRANTS in part Zoran Zlatic’s judicial demand; CONDEMNS Export Depot International R.H. Inc. to pay Mr. Zoran Zlatic the amount of $3,105.35, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from the letter of demand (Exhibit P-1) dated April 8, 2014. WITH JUDICIAL COSTS of $191 in favour of Mr. Zoran Zlatic and owed by Export Depot International R.H. Inc. DISMISSES the judicial demand against Jonathan Zekry; WITHOUT COSTS . __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: March 14, 2016