Questions & Answers

Mis-delivered Shipment

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.

Measure of Damages

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.

Receipts for Air Shipments

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.

Notification on Changes in Tariffs

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.

Pick –ups by Freight Consolidator

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.

Burden of Proof - Shortage

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.