Brink's, Incorporated v. Air Canada, 2025 FC 110

You had ONE job!!! It’s easy to picture someone screaming this into the ether following not only the theft of millions of dollars of gold but an administrative failure which has now led to the loss of any substantial recovery. But such is the case where Brink’s, a company whose whole raison d’etre is the transport and protection of money, missed the mark on properly documenting the value of its cargo.

When Brink’s hired Air Canada to transport 400 kilograms of gold, the shipment went from bullion to bargain after Air Canada not only lost the $20,000,000 worth of gold but was ordered to pay just $18,000 to Brink’s in the recently decided matter of Brink's, Incorporated v. Air Canada.

This case highlights the importance of understanding damages limitations in contracts for carriage. It’s a stark reminder that without precise declarations and appropriate safeguards, businesses risk significant financial exposure when valuable goods are lost or damaged.

Background

A Swiss precious metal refiner engaged Brink’s, an international transportation provider for high-value cargo, to transport 400 kilograms of gold valued at 13,612,696.75 Swiss Francs (20,356,614.29 CAD)¹ from Zurich to Toronto. The gold was loaded onto Air Canada Flight 881 and, after an uneventful journey, landed in Toronto. Shortly after arrival, the gold was stolen from Air Canada’s cargo facility at Toronto Pearson Airport.

After compensating its Swiss client for the loss, Brink’s demanded reimbursement from Air Canada for the gold’s value. Air Canada admitted that it was strictly liable for the loss given that it was in their care during the period of carriage when it was stolen but argued that its liability was limited under the Montreal Convention to $40 per kilogram² of cargo. Brink’s commenced an action and brought a motion for summary judgment seeking the value of the stolen gold, while Air Canada brought a cross-motion for summary judgment of its own, seeking to limit its liability to the treaty’s maximum liability limit for cargo losses.

Applicable Law

The Montreal Convention is an international treaty incorporated into Canadian law via the Carriage by Air Act. It governs air carrier liability and the extent of compensation for damages for which they will be liable. Both Air Canada and Brink’s agreed that the Montreal Convention exclusively governed their respective rights and obligations concerning the gold shipment.

Like many international conventions or statutory transportation laws, such as the Hague-Visby Rules or Ontario’s Highway Traffic Act, damages to cargo during transit are often limited to a specific formula based on the weight of the cargo, not its inherent value. This means that an incredibly valuable, but lightweight, piece of cargo can lead to damages awards (and settlements) at a fraction of the actual loss, even where liability is not in question.

Article 22(3) of the Montreal Convention provides the following provision in respect of cargo losses:

In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.

A Special Drawing Right (or SDR) is a standardized, artificial unit of currency that fluctuates in value in the same manner as national currencies. In January 2025, each SDR was worth 1.88 CAD. So even gold, which has an inherent and easily calculable value, is not worth its weight in... well... gold. Rather, 400 kilograms of gold is worth 6,800 SDR, or around $12,784 in today’s exchange rate.

The one exception, however, is where a shipper has the foresight to explicitly declare the value of the cargo on the bill of lading itself. If that gets done, the damages are limited to whatever the declared value is.

You see where this is going…

The Dispute

The Court was tasked with determining whether Air Canada was entitled to rely on Article 22(3) to limit its liability or if Brink’s satisfied Article 22(3)’s exception criteria, permitting an increased liability limit.

With respect to the increased limitation amount sought by Brink’s, Brink’s was required to establish that it Made a special declaration of interest in delivery at the destination.

Brink's Position

Brink’s position was that it made a special declaration of interest. It claims it did so during the booking process. When placing the order for Air Canada’s Secure service (AC Secure), a service for high-priority shipments, Brink’s submitted a document to Air Canada which included the origin and destination and type of goods. This document is known as the Freight Waybill [FWB]. It also included the following message:

BRINK’S SECURED AIRFREIGHT SPECIAL SUPERVISION IS REQUESTED VALUABLE CARGO

Brink’s also provided a document containing a list of inventory known as a Freight House List [FHL]. The FHL also included the following message.

TXT/GOLD-GOLD-GOLD-GOLD-GOLD-GOLD-GOLD-GOLD- GOLD-GOLD-GOLD-GOLD-G CVD/CHF/PP/NVD/13612696.75/XXX

Brink’s submitted to the Court that it made a special declaration of interest by virtue of the various communications to Air Canada during the booking process that signified the high value of the gold shipment. Brink’s also noted that the FHL included the shipment’s value in Swiss Francs (13,612,696.75 CHF) on the FHL.

Air Canada's Position

After receiving the FWB and FHL messages from Brink’s, Air Canada responded to Brink’s with an Air Waybill that included the following clause:

It is agreed that the goods described hereon are accepted in apparent good order and condition (except as noted) for carriage SUBJECT TO THE CONDITIONS OF CONTRACT ON THE REVERSE HEREOF THE SHIPPER’S ATTENTION IS DRAWN TO THE NOTICE CONCERNING CARRIER’S LIMITATION OF LIABILITY. Shipper may increase such limitation of liability by declaring a higher value for carriage and paying a supplement charge if required.

The Air Waybill included fields for:

1. Declared Value for Carriage, where Brink’s entered "NVD" (No Declared Value), and
2. Amount of Insurance, where Brink’s entered "XXX" (indicating no insurance).

Air Canada submitted to the Court that because no value was explicitly declared in the box for Declared Value for Carriage, that Brink’s did not make a special declaration of interest. Air Canada also rebutted Brink’s position that the FHL containing the gold’s value: “CVD/CHF/PP/NVD/13612696.75/XXX” was a special declaration of interest. Air Canada stated that the listed amount was merely the declared value for customs rather than a declared value for carriage.

Ultimately, Air Canada’s position was that Brink’s was explicitly required to declare a value for carriage, and by that fact, the declared value for carriage was distinguished from the declared value for customs. Air Canada stated that a declaration of value can include “no value declared” (or “NVD”) and that is indeed what Brink’s noted on the Air Waybill, thereby failing to declare any value.

The Court's Decision

The Court accepted Air Canada’s position. Specifically, the court disagreed with the proposition that a declaration of value for customs constituted a “special declaration of interest” under Article 22(3). The Court stated that because the Gold Air Waybill contemplated a distinct declared value for carriage and customs, they both served different purposes. The Court was also unconvinced that the messages within the FWB, FHL, or use of the AC Secure service constituted a special declaration of interest, stating that if Brink’s wanted special supervision beyond the AC Secure service, it would need to specify what it required and negotiate the terms of same with Air Canada, and pay a supplementary sum for the special supervision in accordance with Article 22(3).

In other words, it was the Air Waybill which reigned supreme. It did not matter that Brink’s mentioned the value of the cargo in other documents for other purposes. What mattered was the description on the actual carriage mandate.

Takeaway

Limitation of liability provisions, like Article 22(3) of the Montreal Convention, cap the recoverable damages in cases of cargo loss. When shipping high-value cargo, shippers must carefully review agreements to ensure they do not inadvertently accept liability limitations. This includes explicitly declaring a higher value for carriage and paying any required supplementary charges. General references to “valuable cargo” are insufficient to declare the value of cargo.

Such provisions are not unique to aviation—they are also common in road freight, marine, and rail transport contracts. To protect their interests, shippers and consignors should negotiate terms to opt out of liability caps where necessary and secure comprehensive insurance coverage for their cargo. Shippers and logistics providers should consult legal counsel when drafting contracts or entering agreements involving high-value shipments.

Of course, there may be logical reasons to omit special declarations of value from waybills or other bills of lading. For one thing, a higher declared value could impact the insurance premiums shippers and other interested parties pay to cover the shipment at the outset. While those initial savings may be appreciated at first, they are cold comfort to those who are later faced with a shortfall of hundreds of thousands to millions of dollars on lost or damaged cargo.

Indeed, the lessons to be learned here are not just limited to the shippers and consignees themselves. There has been no shortage of situations where insurance providers, having paid out a first party claim at the actual value of the cargo, are faced with an inability to recover anything close to what they have paid by a subsequent subrogated claim. All because of these provisions.

It is stark to realize that omitting a single piece of data from a single document can cost so much money in an otherwise uncontroversial case. While most shippers are not in the routine of shipping almost half a ton of precious metal, such pitfalls can impact any manner of goods shipped by air, sea, or road. For those risk averse, including the declared value of the cargo, should become the gold standard.

 

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1. As of the date of theft, April 17, 2023.
2. This is the approximate liability limit for cargo losses in Canadian Dollars that is prescribed by the Montreal Convention.