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November 26 2018

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60 The Journal of Commerce | November 26 2018 By Colin Barrett Q&A A Q Not ready for takeoff I am the loss prevention manager for an LTL carrier. We're in dispute with a delivery partner and a claimant regarding responsibility for a claim, and we seek your valued opinion. The shipment in question was an aircra engine and was one of a few shipments that was on a trailer involved in an accident prior to arriving at destination. On first review, the driver and the operations manager visually saw minimal damage to the engine, but arranged to have it returned to the shipper for repackaging. Thirty days later, the shipper filed a claim for parts, testing, and 96 hours of labor, far exceeding the expectations or the visual inspec- tions of the pickup terminal. In the claimant's letter, it was indicated that testing would be necessary to determine airworthiness, and the parts list and the labor hours were in response to the test- ing. The delivery partner who performed the pickup for our company has declined the claim; the basis for declination is that the repairs far exceeded the actual damages as visu- alized and that there was no formal inspection performed prior to repairs to verify the extent of damage (if any). Is the claimant obligated to support the need for repairs if they're the ones performing the repairs? Is the claimant or the carrier obligated to have a formal inspec- tion by a third party performed? Is a visual inspection enough? We're in the middle of this dispute and are trying to come to some sort of agreement. EVER BEEN ABOARD a commercial airliner? How'd you like to climb into one whose engine had been involved in an accident with only "minimal damage" and had been subjected to nothing more than "visual inspection" afterward? Do I make my point? Unless you're a very unusual motor carrier manager, what you know about the work- ings of aircraft engines, not to mention the very detailed Federal Aviation Administration requirements relating to their safe maintenance and operation, can be writ in large print on the head of a pin. The same probably holds true for your connecting carrier. So, your "visual inspec- tion" is absolutely worthless in this context. On the other hand, your shipper, who presumably manufactured the engine and, by your statement, performed the repairs, is a pro at this discipline. Are you really prepared to seriously argue your case against such a party in a legal setting? Look, I'm not trying to say that every dollar of the claimed inspection and repair expense was truly neces- sary. Your shipper may have erred on the side of caution, especially given the FAA regs and the safety concerns that constrain it. And rip-off artists come in all shapes and sizes, not to mention levels of expertise in this or that technical area; sure, the possibility exists that you happen to have encountered one such, and are being asked to pay for repairs that either were not needed or perhaps weren't even actually made. But practically speaking, you'll be shoveling sand uphill against the tide to prove any of that in court. Even if you procured (and paid for) expert testimony that disagreed with the shipper, you'd at best wind up in a he- said-she-said sort of squabble that ordinarily goes down pretty badly in court. You acknowledge that the engine was involved in an accident. It's a precision piece of machinery, on the reliable functionality of which will ordinarily depend a number of human lives. You don't know squat about the workings of such machinery. In such cir- cumstances, your "visual inspection" of the damage has zero evidentiary value in the face of the shipper's expert evidence. Let me offer an analogy within your frame of refer- ence as a motor carrier manager. I'll start by telling you I know virtually nothing about automotive mechanics; I can write, I can manage people, I know transportation law and practice, I can do lots of other things, but you do not want me to try to repair your car or truck. Now, if you bring your rig to me and ask me to check out the braking system, are you really prepared to risk your drivers' lives and the integrity of your equipment and cargo on my taking a quick glance and saying, in essence, "duh, looks OK to me?" You aren't? Wow, what a surprise. Then get off the idea of relying on non-expert "visual inspection" of in- tricate and delicate mechanisms as your measure of what a damage claim "ought to be." JOC 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; email, Contact him to order the most recent 351-page compiled edition of past Q&A columns, published in 2010. Practically speaking, you'll be shoveling sand uphill against the tide to prove any of that in court.

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