Carrier Picks Up Cartons, Delivers Pallets

Carrier Picks Up Cartons, Delivers Pallets

Copyright 2008, Traffic World, Inc.

Q:

In February of last year, a customer of ours sent a 3,900-pound, 85-carton return shipment back to their vendor that was not delivered until April of that year (no reason was provided by the carrier for the time it took to deliver the shipment).

This shipment was not palletized when given to the carrier, and the bill of lading stated 85 boxes. When the shipment did deliver in April, the delivery receipt stated three skids and made no reference to the carton count.

The vendor signed the delivery receipt clear for the three skids. This vendor also weighs each shipment on their scale as they come in and determined the shipment weight to be 3,342 lbs. This was written on the delivery receipt at the time they signed for the shipment.

They do not have any official paperwork stating this (scale certificate) and this may be a moot point, but it further indicates that loss indeed did occur in transit. They did not have any additional paperwork regarding this shipment other than the credit memo and a note in their system that says 67 cartons returned.

The carrier billed the customer for 85 cartons, 3,900 lbs. Only when the customer received their credit from their vendor did they realize that there was a problem. The credit was $17,000 short and our customer proceeded to file a $17,000 claim against the carrier. The carrier denied the claim based on the clear delivery receipt.

I think we have a good argument against the carrier but I would like your thoughts.

A:

You''ve got more than that, you''ve got a pretty strong case of fraud by this carrier.

Unfortunately, you can''t recover additional damages against the carrier for that; the Carmack Amendment (49 U.S.C. ? 14706), which governs, doesn''t allow for such. You can and should, however, pursue this claim vigorously.

What patently happened is that the carrier "forced" a bill of lading to indicate that the shipment was being delivered as tendered. That is, rather than presenting the delivery copy of the original B/L showing carton count, it counterfeited one showing skids instead.

OK, I could be charitable and assume the original B/L was somehow mislaid; the carrier got delivery instructions off carton labels, honestly thought it was delivering complete and cut a new B/L accordingly.

But charity is trumped by the fact that the carrier got greedy and billed for the 85 cartons and 3,900 pounds of the original B/L. If that document was lost, how did it know to bill for that count and weight instead of the 67 cartons and 3,300 or so pounds it delivered?

(Never mind whether the shipper''s scale was certified, a 600-pound discrepancy is too great to reasonably ascribe to scale error. And there''s also the tell-tale difference in carton count.)

To me this evidence is conclusive: The carrier intentionally substituted a falsified bill of lading for the original to accompany delivery. Nothing else reasonably accounts for the circumstance you described.

And it''s the falsified B/L that was signed clear.

So the clear delivery receipt is evidence only of what it contains - to wit, that the carrier delivered only the portion of the shipment it arbitrarily described on its own fake B/L, not the whole shipment as tendered. The carrier can''t hide behind it to avoid claim for the missing balance.

Press the carrier hard for payment. If it still resists, I''d use set-off if you can - that is, deduct the claim amount from any freight bills you owe the carrier. I think this case is so clear-cut that doing so would be appropriate.

Or, if it''s necessary to go to court over this, I''d seek legal costs on top of actual damages. As I said, you can''t get punitive damages for the carrier''s misbehavior; but awards of legal costs are within a court''s discretion, and your case of fraud seems to me persuasive enough to justify such an award here.

For the future, I''d recommend that you avoid using this carrier for anything. The delivery delay was bad enough, but the dishonesty inherent in its fraudulent effort to avoid liability for goods lost while in its custody is to me an absolute disqualifier.



Q:

The question we have is on intrastate shipments. Does the 18-month statute of limitations for carriers to sue for their freight charges and for shippers to sue to recover overcharges apply?

A:

Yes.

Under 49 U.S.C. ? 14501, states can''t override federal transportation law save in certain very limited areas. The time limits for such lawsuits set forth in ? 14705 aren''t one of the excepted areas. Therefore the 18-month time limit applies.

Note that, as stated in ? 14705(g), the 18 months is measured from the date of delivery of the subject shipment, not from any date related to presentation of the freight bill or payment of that bill.



-- 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.