Q: We sent a shipment intended for a customer in the Dominican Republic to a Florida freight forwarder hired by our customer. The value was $10,000.
The customer claims the product was never received. The carrier provided a signed proof of delivery that the product was delivered to its forwarder. The forwarder, however, said the person who signed it has never worked for them; I have a letter from the president of the forwarder to that effect.
The carrier said it has a driver’s statement and GPS data to prove its driver was there at the time the proof of delivery indicates. It said it delivers to this forwarder several times a week and it is in a stand-alone fenced building — meaning there’s no chance it was mistakenly delivered to a neighboring forwarder. The carrier, however, won’t release the driver’s statement or GPS data, citing company security policy.
In summary, I’m left holding a $10,000 loss. The carrier has a proof of delivery, but the forwarder denies everything. Though f.o.b. terms are origin, for customer service reasons we don’t want our good customer in the Dominican Republic to be saddled with this issue. We want to file a claim but need to know with whom and what our chances are of recovery.
A: Something of a poser, isn't it? As I sometimes do when I get questions of this puzzling nature, I consulted my good friend Sherlock Holmes and gave him your letter to read.
“Well, Watson, a fairly elementary matter,” he said when he’d finished; for some reason, he always calls me Watson. “Please summarize for me what we know of this shipment.”
“It appears to have been delivered to the forwarder in good order,” I began. But he immediately interrupted me.
“Was it? How do we know that?”
“Holmes, there’s a signed proof of delivery,” I protested.
“Signed by whom?” he asked.
“And there lies the problem,” he told me. “It is signed by some person unknown, according to good evidence — the evidence of the top officer of a forwarder well enough established that it is a frequent receiver of goods from a reputable trucking company.
“Now, against this, we have only the unsupported word, received only at second hand, of the trucker’s driver. Moreover, notwithstanding that it has told your correspondent where the driver nominally was at the time of the alleged delivery and thus has no confidentiality to protect, the carrier declines to produce supporting evidence that it said is in its possession.”
“Egad, Holmes!” I exclaimed. My friend is the sort of man who evokes the occasional “egad” from me.
“Just so, Watson,” he said. “The last we know for sure about this wretched shipment, it was in the custody of the carrier. The carrier has only an allegation that it made proper delivery, an allegation that is strongly denied by the alleged receiver.”
“Therefore, it’s against the carrier that my correspondent should initially file his claim,” I concluded triumphantly.
“Quite so,” he agreed. “Elementary, my dear Watson.”
Of course, there remains the possibility that some person or persons unknown slipped surreptitiously into the forwarder’s receiving dock, signed for the goods and then somehow ferreted them out through the fence. If so, you might well claim the forwarder’s security is so lax that it constitutes negligence and seek recovery from it. But is that really very likely?
It’s also possible the folks at the forwarder are telling lies — but for only $10,000? And that’s your sale price, not the much lesser amount the goods would fetch at an illicit sale.
I can conceive of no “security policy” considerations that would bar the trucker from letting you see either the driver’s statement or the GPS readout. What has it to conceal? Might it not be that the matter being concealed is that one or both don’t match up with that proof of delivery?
So press the carrier hard on this. I won’t go so far as to tell you that either it or its driver is guilty, because the evidence falls far short of that.
But right now you don’t know who signed that proof of delivery, where or when, and it’s up to the carrier to prove it made proper delivery of the goods where they were consigned. It needs more than an anonymous signature on a piece of paper to do that. Make it produce the additional evidence it said it has or pony up for the missing shipment of which it had last provable custody.
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 most recent 351-page compiled edition of past Q&A columns, published in 2010.