Waynes World - February 2005

A BRIEF HOURS OF SERVICE UPDATE, DETERMINING
LIABILITY FOR DAMAGES, AND...

PACKING REQUIREMENTS
FOR YOUR FREIGHT
By Wayne Schooling

Q: We recently received a denial letter in which a carrier has denied the claim because they allege “the material was not properly packaged to withstand the normal rigors of transportation.” They go on to state, “please keep in mind that double stacking freight, unless specified in the shipping instructions, is a common procedure in the industry.” We are in possession of pictures of the double stacking that caused the damage. Apparently, after picking up our material, the carrier then picked-up another load consisting of large pallets weighing about 950-1100 lbs. each, and placed them on top of our goods. My question is this: does the requirement for our packaging to “withstand the normal rigors of transportation” also include the requirement to withstand the weight of a 1000 lb. pallet placed on top of it? Your help would be greatly appreciated. George V., Pleasanton, CA

A: As a general rule, the shipper is supposed to package goods in a manner “to withstand the normal rigors of transportation.” However, getting back to basics, a carrier can only escape liability if he can prove two things: 1) that the “act or default of the shipper” (i.e. improper packaging) actually caused the damage; and 2) that the carrier itself was free from negligence. I don’t see how a carrier can refuse to pay a claim if they placed some other heavy freight on top of your shipment, which caused the damage.

Q: The company I work for is a transportation broker. A customer of ours had some damage on a load that we handled for them. The customer did not file a claim, but instead deducted the amount of the claim from our invoice on the load. What are the laws regarding this issue? Can the customer legally do this without a claim being filed? Ed G., Lancaster, CA

A: First of all, as a broker, you should not get yourself caught in the middle on claims. Brokers are not generally liable for loss or damage unless it is caused by their own negligence. Your company should make it clear to your customers that you are a broker and that you are not a motor carrier. If you want to assist your customers in filing or processing their claims against motor carriers, that is okay, but you should not hold yourself out to be responsible for the payment of claims. I recommend to you and everyone else in your business that you should have written agreements with your customers. Second, there is no law or regulation which would prevent a shipper from offsetting claims against freight charges, and it is done frequently. Further, if the shipper fails to file a written loss or damage claim within the nine-month time limit provided in the uniform bill of lading, it could end up in court having to pay the freight charges and not be able to collect its loss or damage claim because it is time-barred. In addition, the carrier could have a late payment penalty fee, which would be added on top of the freight charges due.

Q: On a full truckload shipment from our distribution center, the truck was sealed and the driver did not have the opportunity to inspect the load. When the truck arrived at our store for delivery, the driver broke the seal and opened the trailer door, and the load appeared to be properly secured. The driver then began to back up into the dock and the load shifted and packages fell out of the back of the trailer and were damaged. At this point, would the carrier be the one who is liable for the damage? Paula P., Akron, OH

A: This appears to be a Shipper Load & Count (SL&C) situation, where the trailer was loaded and sealed by the shipper, and the driver had no opportunity to observe or participate in the loading. Under these circumstances, the shipper assumes a greater responsibility than if the driver is present and can supervise the loading. The question is whether the driver was negligent in any way. You say that the driver broke the seal, opened the door, and then started to back up the trailer. If the driver could not see any obvious problem with the loading, and was careful in operating the truck while backing up, I think it would be difficult to hold the carrier liable for the damage. On the other hand, if he backed up very rapidly, bumped the loading dock pretty hard, etc., you could argue that the driver’s negligence was a contributing cause of the damage, in which case, the carrier would then be liable.

Q: What is going on about the new Hours of Service Regulations? Al O., Lancer, PA

A: Other then the extension that was given, there really isn’t much that is new. Apparently, some companies are having a hard time. I just read last month that some truck drivers and executives from five companies, four of which are based in Central California, have been indicted for conspiracy and falsifying their Hours of Service logbooks. Madera-based Nijjar Brothers Trucking and NB Trucking, as well as Semper Truck Lines in Fresno, were named in the indictment. The charges grew out of a crash near Phoenix in September 2003 in which two people were killed. A Madera, California driver was initially charged for being over hours and falsifying his logs, then the investigation spread to other companies. Two motor carriers already have admitted guilt and one agreed to a $1 million penalty. The money is to be used by the California Highway Patrol for increasing truck violation enforcement. At this rate, trucking companies are their own worst enemy. My advice: drive within the hours (whatever they are) - it just doesn’t pay not to.

~ Do you have any transportation-related questions you would like me to address? If so, send them care of Wayne Schooling at NorthAmerican Transportation Association, 2533 N. Carson St, Suite 346, Carson City, NV 89706-0147. Or, if you prefer, you can send them via e-mail to me at wayne@ntassoc.com. Until next month, “Drive Safe - Drive Smart!”