Q&A: Sealing the Deal on Damages

Q: This relates to your column concerning the carrier that showed up with a seal number on the trailer that didn’t match the bill of lading.

I’m not a lawyer and write this simply out of curiosity, but if the seal number isn’t the one that’s in the B/L, I think the consignee has the right to hold the carrier responsible for damages, if in fact he can prove there are damages.

Maybe the consignee should explain a bit more under which terms he accepted the shipment, “but held it in quarantine pending an explanation, which we never got.” Can you clarify this point?

A: I agree with you about the carrier being liable for any proven loss or damage to the goods, and that is irrespective of the seal number situation. My point in the original column was that the seal number discrepancy doesn’t itself constitute “proven” damage.

My original correspondent was unable to prove any actual damage to the load other than that the seal had been broken, and for that reason I was unable to find that he had a valid claim. This is actually a fairly common dispute between carriers and shippers, especially on cargoes considered sensitive in nature, such as — and this was the case with my original questioner — foodstuffs.

The notion in the industry seems to be that moving foods intended for human consumption must be accomplished in a sealed trailer, notwithstanding that the foods are internally packaged. The idea is that somehow the sealed trailer adds a level of security to the movement, even though that doesn’t seem to me to be very sensible.

My thought is that a carrier trailer is scarcely a sterile environment in which to move unprotected food. You don’t know what the trailer has hauled previously, or what other contaminants it may have collected prior to (or at the same time as) the food material being loaded.

That is, of course, why food products are commonly vacuum-packed in impermeable packaging, and otherwise protected from contamination — so they can move and be stored in ordinary surroundings without concern that they might thereby become adulterated. I don’t see how a sealed trailer further protects the contents of these internal packages.

One individual who explained this food industry policy to me said he had often been able to collect from cargo insurers on such claims by asking the insurance adjusters, “Would you be willing to serve this to your family knowing that the seal was not intact?” Well, I suppose that’s a creative approach. But it doesn’t persuade me.

First, have you read the Food and Drug Administration’s regulations concerning food purity? They spell out such things as how many particles of rodent feces and hairs, how many insect body parts and other foreign material are allowed in human food products. That’s what you’re ordinarily allowing on the family table, in which an intact trailer seal plays no role.

Second, the trailer seal seems primarily aimed at protecting the load only from human interference. Yes, I remember the occasion when medicinal capsules on store shelves were found to have been laced with cyanide, but the occasions for this kind of behavior are so numerous that a trailer seal seems inadequate protection.

Thus, my answer to anyone who would ask me if I would serve food moving in an unsealed trailer to my family would be, “Yes, I would.” I’d hate to have to depend on a trailer seal to ensure the purity of the food I buy. Nor do I believe the mere fact that a seal on the trailer was breached demonstrates the con-tents have been so adulterated as to make the food inside unsafe for consumption.

And that was the point of my original answer. The fact of a compromised seal doesn’t itself give rise to a valid claim against the carrier — and this is irrespective of any “terms” under which the consignee may have accepted delivery. The stuff must be considered undamaged until and unless proved otherwise, and therefore no valid claim attaches.

If, on the other hand, damage can be shown to have occurred, then the carrier is naturally liable, and that is irrespective of the condition of the trailer seal. A sealed trailer is no proof that damage didn’t happen any more than an unsealed one is proof that it did. The seal is immaterial to that point.  

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.

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