Is This Glass Claim Shattered?

Copyright 2008, Traffic World, Inc.

Q:

This addresses a claim that was paid in full, but some things are just not right!

We have a distribution center in the Southwestern United States that supplies the wholesale market with aftermarket automotive glass. All our freight is routed through a 3PL; we do not hold any carrier contracts directly.

This particular load originated in the Canadian province of Ontario and was on its way to our distribution center. It was in Texas when the driver wrapped his tractor-trailer around a bridge support. (The driver is OK, and very lucky!)

A claim adjuster was immediately sent to the scene and determined the load to be a complete loss, and the carrier was notified.

The carrier, which is Canadian, contacted a local tow company to clean up the scene. During the clean-up process, the tow company began selling the salvageable glass.

As I say, the carrier paid the claim in full. But the glass the tow company was selling is stamped with our logo and the quality most likely was compromised.

What rights did we have (or what am I missing) to make sure that the glass was disposed of properly and not sold on the market? I went as far as contacting the local police, since the transfer of goods was not then complete, i.e., at that time the carrier hadn''t yet paid the claim.

A:

Ugh. This one is decidedly awkward.

My first instinct was to tell you the tow operator was way out of line and perhaps even acted criminally by selling stuff that didn''t belong to him. But then I started thinking it through.

You and the carrier agreed that the shipment was a total loss, right? Never mind for now how the claim was handled, let''s stick to the point that both of you agreed the whole load was garbage and the tow operator was just hired to haul it off.

That makes this a different situation from the one I usually encounter, where a carrier insists on salvaging goods before it will pay a claim.

I''ve said it before and I''ll keep saying it so long as there''s breath in my body, the carrier has no right to salvage damaged goods. Everybody repeat along with me, now: The. Carrier. Has. No. Right. To. Salvage. Damaged. Goods.

If the goods aren''t a total loss the carrier does have the right to a salvage allowance - an offset against the claim amount equal to whatever market value the goods retain. Alternatively, the shipper may elect to turn the goods over to the carrier for salvage sale; but that''s its choice, not a requirement.

The carrier isn''t buying the goods by paying the claim, it''s just discharging its liability for the damage. Thus, there was no "transfer of goods" upon the carrier''s payment of your claim unless you volunteered it; you still held title.

Except in this case you didn''t because you renounced it. You abandoned the glass at the side of the highway. Asking the local police to intervene was pointless; you''d already declared it to be trash that you no longer wanted.

OK, there have been some instances where overzealous investigators have commandeered garbage left by homeowners and business operators for pickup before the real garbage collectors arrived, hoping to glean information from the contents. The courts have held this pretty questionable in a few cases.

But in those cases, although identifying the stuff as trash, the owner retained the option of changing his mind. It was still on his premises, or near enough at his curbside; he might have renounced title but not yet custody. Who among us hasn''t had occasion to go rifling through the trash on a last-minute basis in search of jewelry, a key document, etc., that may have been inadvertently discarded?

That''s not the case here. You abandoned both title and custody of the glass on a public roadside. It therefore had no owner, and anyone was free to pick it up and dispose of it as he or she chose. Which is all that the enterprising tow operator did.

In your case it''s probably not a problem. Automotive glass is designed to withstand some pretty harsh treatment, such as impacts from road detritus, bugs, the occasional unwary bird, etc., at highway speeds. I doubt the fact that it received such treatment in a truck wreck rather than its intended location as barrier between the exterior and the interior of a moving vehicle "compromised" its quality.

But the goods might have been something else that could indeed have invisibly but significantly lost proper functionality. And the legal situation would still have been the same; it''s "finders, keepers" for abandoned goods.

The only way to avoid this is to make sure it''s real trash before abandoning it. Don''t relinquish title and custody before then. Yes, that''s a hassle and may even cost money. But if you want to be sure your goods are destroyed before abandoning them, then don''t abandon them until and unless you are.

You either own a thing or you don''t, there''s no halfway house. That''s why a lot of people use shredders before discarding sensitive papers. If you''re that concerned about protecting your logo, you need to do so proactively.



-- Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at 5201 Whippoorwill Lane, Johns Island, S.C. 29455; phone, (843) 559-1277; e-mail, BarrettTrn@aol.com. Contact him to order the 536-page compiled edition of past Q&A columns, published in 2001, at $80 plus shipping. Later compilations by request.







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