Copyright 2004, Traffic World, Inc.
A local motor carrier dropped a trailer at a retail vendor''s dock. The driver was told to leave and the vendor would call in to his dispatcher when the trailer was loaded.
The vendor called later in the day and a driver with a bobtail tractor was dispatched to pick up the load. The bill of lading showed 2,285 cartons and the driver signed it and sealed the trailer, noting both piece count and seal number on the B/L.
When the trailer was delivered and unloaded by the customer, the seal was intact, but the consignee signed the delivery receipt "unloaded 2,285 cartons, 22 cartons short." The driver notified his office, which contacted the shipper and asked for a "tally sheet." On the sheet the piece count showed 2,307 cartons, and there was no notation of back order or stock-out or cartons not shipped.
Is there any liability here for the carrier?
On the basis of what? The shipper''s internal paperwork, which may or may not be factual?
I can''t imagine why the carrier even asked for the tally sheet. Perhaps it has some profound importance in the shipper''s managerial processes but it''s nothing in anyone else''s young life, most especially the carrier''s. And I''m not at all sure at least this one wasn''t mocked up after the fact or otherwise falsified.
If it''s genuine, somebody is going to have to explain why, staring at a tally sheet showing 2,307 cartons loaded, whoever prepared the B/L instead wrote down 2,285 cartons - which (what a coincidence!) proved to be, after transportation under an unbroken seal, the exact number of cartons actually on board.
A couple of possibilities occur to me. One is that the person at the carrier who asked someone at the shipper for the tally sheet tipped that person off that the consignee was claiming a shortage of 22 cartons. The shipper employee did the math and creatively whipped up a brand new tally sheet showing what he or she now knew to be the proper number.
Possibility No. 2 is that the shipper''s B/L preparer, either by himself or herself or more likely in league with one or more of the loaders, pilfered the missing 22 cartons and created the discrepancy in count to conceal the theft. This would make sense if the driver was able to verify the count, which seems possible notwithstanding that he had not observed the loading; most carriers train their drivers not to sign for piece count unless they know it to be accurate.
If the shipper is really interested, a little simple detective work should reveal which scenario is correct. Either a manual inventory of the product(s) involved will show 22 cartons over, in which case the first one (faking the tally sheet) is probably true, or the 22 cartons really went missing, in which case No. 2 looks pretty good.
What does not seem to me possible in the circumstances you describe is that the 22 cartons went missing while the shipment was in the carrier''s custody and it therefore had liability.
The intact seal goes some of the way to support this, but the B/L count is the real proof.
And legally speaking that count provides the carrier with what''s pretty much an absolute defense against any shortage claim. The B/L is the shipper-carrier contract, and if the contract shows the carrier received 2,285 cartons and delivered 2,285 cartons, it has discharged its responsibility in full. I doubt that a court would even allow the tally sheet to be introduced into evidence, and certainly wouldn''t accord it anything close to the weight of the contractual document.
I know I''ve long inveighed against giving too much importance to carton counts on bills of lading. That''s because far too many shippers load drop trailers as you''ve described, insert a count on the B/L that the driver (confronting a fully loaded trailer) can''t possibly check, and demand that he or she sign for that count without any "shipper''s load and count" or other qualification.
On sealed trailers I seriously question shortage claims in these circumstances.
But here the count backs up the carrier''s position, not the shipper''s, and I can conceive of no possible motive to falsify it - either mistakenly or deliberately - in this way.
Oh, all right, there''s one possibility, though I think it''s pretty far-fetched. Suppose the shipper''s B/L preparer is in league with, not one of his own loaders, but the carrier''s driver. That would give motivation for a false B/L count to which they both agree. It doesn''t allow for the intact seal, but I suppose the two of them could have removed the 22 cartons before the seal was applied.
If such a case could be proved, by the way, then the carrier would indeed be liable because its own employee was involved in the theft. But I doubt the shipper would pursue such a claim given the putative collaboration of its employee.
Anyhow, future shipments should give this away pretty quickly if it indeed happened; I doubt they made such a killing on just 22 lousy cartons that they won''t try to repeat it (if indeed that''s what happened). But otherwise I see no carrier liability.
-- Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at P.O. Box 76, Morganton, Ga. 30560; phone, (706) 374-7201; fax, (706) 374-7202; 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.
No Shortage on Bill of Lading
No Shortage on Bill of Lading
Copyright 2004, Traffic World, Inc.
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