Question: What is the liability of a common carrier
under the following circumstances? The carrier picked up 1 pallet of calendars
going to a bookstore in a shopping mall. The carrier made the delivery the next
day. However, unknown to the shipper, the consignee moved three months earlier
and a different company, which was also a bookstore had moved into the
location. This new store accepted the shipment from the trucking company and
the error was not discovered until 4 months after the delivery was made. The
new store has since moved and no one can locate the merchandise. Sign on the
delivery door at the mall still reads the original consignee's name. The
original consignee claims that they notified the shipper of the fact that they
were moving, although the shipper has no record of it.
The carrier asserts that the goods were delivered to the
address on the bill of lading and that it had no reason to question the
identity of the consignee. The carrier had delivered to this location in the
past and the delivery door was marked with the same name that was on the B/L.
In addition, the company that accepted the freight was also a bookstore.
Answer: The general rule is that the carrier has a
duty to ascertain the proper party named as consignee in the bill of lading and
to deliver only to that party. Failure to do so is a “misdelivery” for which
the carrier is liable. See Section 11.3.3 in “Freight Claims in Plain English”
(3rd Ed. 1995) for a discussion of the court decisions.
The company that wrongfully accepted the merchandise is,
of course, also liable and should not have accepted goods that were the
property of someone else.
My recommendation would be to pursue your claim against the
carrier, and let them try to collect from the company that accepted the
merchandise.
Question: When I filed a $13,679.15 (our invoice
price to the consignee) claim with the carrier for a pallet of product it lost,
they responded by asking us to reduce the claim to our manufacturing cost,
stating:
“...Please be advised that it is
legal and customary for the carrier to request that the Shipper or Manufacturer
amend a claim to their cost rather than invoice value. The basis for doing so
is that in many instances, the shipment which has been lost or damaged is
replaced by the shipper. Therefore, the sale was not lost. If and when the
ultimate customer reorders from another source or chooses not to replace the
shipment, the sale is then considered to be lost and the Shipper and or
Manufacturer is entitled to recover the invoiced value. The carrier's
responsibility is to cover your loss. This does not include profit unless the
loss or damage resulted in a lost sale”
We replaced the product after flying the replacements in
from overseas, and the air freight cost was not included in the claim. What are
we entitled to?
Answer: The carrier is wrong. If these goods had been
sold to a customer and were lost during transit, the proper measure of damages
is the invoice price to the customer. The fact that you may have obtained other
goods and shipped them to your customer is irrelevant. The additional cost of
the airfreight for the replacement shipment would probably be considered
special damages and therefore unrecoverable, unless the carrier was on notice
or should have known that a replacement shipment would have to be air freighted
in.
Question: What should we do on our airfreight shipments
when the carrier's driver uses a handscanner to register the pickup, but will
not sign any documents. We have no receipt for the number of packages picked
up. Is there any requirement that the airline issue an airbill to us?
Answer: While there does not appear to be any such
requirement in the Bill of Lading Act, and there does not appear to be any
other regulation governing airlines, valuable property should never be handed
over to anyone without getting a receipt. There must be some way to obtain a
receipt, contact the carrier or use someone else.
Question: Is there any requirement for a carrier to
notify a shipper of any subsequent rate changes after the shipper has requested
and been provided with the tariffs pursuant to 49 U.S.C. § 13710?
Answer: Unfortunately, motor carriers are NOT
required to advise shippers of changes to their rates or rules, even when the
shipper has requested and been furnished a copy of their tariffs.
Carriers can (and do) unilaterally increase rates or change
limitations of liability and other rules such as a loss of discount or other
penalty for late payment, etc. in their tariffs at any time.
Question: I ship to my customer via a freight
consolidator in Los Angeles and I pay freight charges to the consolidator for
the pick up. I must allow for a four hour pick up window, however the
consolidator will not wait more than 5 minutes for the load. Are there any laws
concerning the time allowed to load for consolidator pick up?
Answer: There are no “laws or regulations” governing
the time allowed to load for a consolidator pick up. Sometimes motor carriers
will include provisions in their tariffs governing detention time or other
accessorial charges for loading or unloading, but I don't think that is your
problem.
My suggestion would be to talk to the consolidator and try
to come to a reasonable agreement. If they won't cooperate, take your business
elsewhere.
By the way, you should have written contracts with carriers
or consolidators. Then, you can spell out all of the obligations, terms and
conditions that have been agreed to by the parties.
Question: We are a surface and air freight forwarder.
We tendered 2 skids with 93 pieces noted on the bill of lading to the carrier
in Los Angeles. The skids were banded with seals and a note was made on the
bill of lading that “If bands or seals is tampered with, inspection at carrier
is required.”
When our driver went to pick up the freight from the
carrier, he observed something wrong with the shipment. He then counted the
pieces and noted the following comment, “I busted down 1 skid found 1 empty
box, bands were intact.”. He also noted the comment “1 empty box 3 totally
gone.”
We had a declared value of $10,000 on the shipment. The
carrier denied the claim on the following basis:
According to the bill of lading, which states “If the band or seals is tampered with inspection at carrier is required”. Your employee states “I busted down one skid found 1 empty box - Bands were intact.”
Since there was absolutely no
tampering with the bands/seals, the shortage must have occurred prior to us
handling the freight.
I responded that while the bands were still on the freight,
they were loose. The reason that the driver checked further was because the
cardboard wrappings on top and on the sides of the skid were missing, the bands
were loose and because while the seals were on the straps, they not where they
were originally placed. The shipment was inspected at the carriers dock but
they are still refusing the claim because of not having more detailed
information put onto the delivery receipt.
Are we within our rights, and exactly what is necessary when
we determined loss upon termination of the shipment at destination?
Answer: Clearly, if the loss occurred while the
shipment was in the possession of the carrier, they would be liable.
However, your question really involves factual issues more
than legal issues. Your burden of proof is to establish that the shipment was
in good order and condition when you gave it to the carrier in LAX, and that
there was shortage when the carrier delivered it at ORD. In order to do this,
you need a statement or affidavit from someone with personal knowledge, who
actually saw or inspected the shipment, at both the origin and the destination.
Whether or not the full particulars were noted on the
delivery receipt is not controlling, so long as you can reasonably establish
that the shortage could not have occurred either before or after the carrier
was in possession of the shipment.
I would recommend that you pursue this claim and, if
necessary, take legal action.