Q: We are a local cartage company. We picked up a shipment of drums on pallets loaded by the shipper with a forklift.
On arrival at our terminal, we noticed one of the drums was leaking. The drum had a horizontal “tear” on the rib. It looks like the tear was caused by a rivet sticking out a quarter inch from the logistics post.
The question is, who is liable for the damaged drum, the cleanup of our trailer and the transport cost of an exchange for a fresh drum?
We contend it is the shipper’s responsibility to examine the equipment before loading, and so they are responsible for the damage. They either should have refused to load or taken precautions to stay away from the “obstruction.”
I anticipate they may claim the tear occurred in transit with the drum rubbing against the rivet, although that would typically leave a vertical tear in this situation. There is no evidence of a horizontal movement of the load.
We do not intend to ask for anything other than a replacement drum and will absorb all other costs. Where are we legally and morally with this? The shipper is not our customer, but we always try to do the right thing while also watching out for our interests.
A: Let’s think about your argument. You contend the shipper “should have” noticed a rivet protruding just a quarter of an inch from the sidewall of your trailer — which you yourself apparently hadn’t noticed, either, in the probably quite short “free time” you allowed for loading, including pre-loading inspection of the unit.
Why am I not buying into this?
For readers unfamiliar with trailer design, a “logistics post” is a notched upright along the inside wall of a closed van, used to affix bracing, load locks or other load supports. Sometimes it’s flush; more often it sticks out a little into the cargo area.
And if the logistics post in question is such an “outie,” the drum could have been crammed tight enough that even the tiny protruding rivet could have rubbed a hole in it. It’s possible.
Frankly, I still don’t find it very likely. A “tear,” as you describe it, could only have been made by repetitive chafing across almost exactly the same area of the barrel.
The horizontal nature of the tear doesn’t surprise me much; the barrel presumably swayed a little on its pallet as the truck moved. But I also would have expected a little vertical jouncing, which would have altered the contact point enough to vary the location of the chafing. I’m also still hung up a bit by that quarter of an inch. If it was no more than that, I’m pretty surprised the protruding rivet managed to penetrate the barrel.
Still, you seem pretty sure the rivet was the cause, and you had the opportunity to actually observe the scene. So I won’t argue about your diagnosis. But if you’re correct, your effort to lay blame at the shipper’s doorstep falls dead flat.
It’s your obligation to provide suitable and safe equipment for the load. Sure, if there’s an obvious flaw — a gaping hole, detritus on the floor — the shipper shouldn’t load the unit.
Even then, it’s arguable the shipper’s negligence in loading anyway doesn’t overcome your own negligence in providing such equipment to begin with. Contributory negligence, bear in mind, has no role in loss-and-damage claims.
The shipper, however, can scarcely be held negligent for failing to observe a defect as tiny as you describe. Nor, for that matter, can I find you negligent for providing a unit with such a very minor defect.
But negligence is not the point here. As a carrier, you are liable as “virtual insurer” of the goods whether or not you were at fault, absent (as relevant here) some egregious fault of the shipper. And I see none here.
If you’re anxious to “do the right thing,” then own up to the claim. Provided the situation is as you describe, you owe the shipper for the damaged barrel, including transportation cost, and the cleanup is your responsibility.
Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to 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.