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April 1 2019

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44 The Journal of Commerce | April 1 2019 By Colin Barrett Q&A A Q Why this delay could end up in court I have a shipment that for various reasons has been detained for 28 days. I finally was able to get things cleared up and paid $10,500 in demurrage fees based on the broker's commit- ment in email and verbally over the phone of pickup. It further committed twice and sent the bill of lading with the time for pickup. Now it says there will be an additional eight- or nine-day delay, and is advising of additional demurrage amounts that will be due. Do I have any recourse on this? I SUSPECT THAT if the facts are as you describe them, you may have a cause of action against your broker and/or the underlying carrier. You give me far too little detail, but your terminology suggests that this is a railroad shipment. "Demurrage" is a term reserved for delays in rail movements, and the amount you say you paid for a 28-day delay comports with the charges typically assessed by rail carriers. If it were a motor carrier shipment, the correct word would be "detention," and the total dollars would almost surely be a great deal less (although I confess that I have to wonder why you're using a broker for a rail shipment). Now, the question arises, why the additional delay? Several possibilities come to mind, none of them being your fault and for none of which you should be econom- ically liable. One such possibility is that the rail carrier is responsi- ble for the delay. For whatever reason of its own, it either can't set up train service in less time than the additional eight to nine days it's saying is needed or can't more quickly access the car(s) holding your shipment. These things are its problem, not yours, and you shouldn't be economically penalized for them. By the way, the same thing holds true if this is really a motor carrier shipment and you're just using the wrong terminology. If the additional delay is due to the carrier's convenience, it, and not you, should be responsible for the costs thereof, and you shouldn't be receiving any fur- ther bill for "additional demurrage amounts." If you do, I'd advise you to contest such a bill, in court if need be, an action that your broker should be prepared to support with evidence that it timely provided the carrier with forwarding instructions. A second possibility is that the further delay is for some reason caused by your broker, who held up the order to release the shipment, notwithstanding its com- mitment to you. In such a case, you have no cause to dispute the carrier's bill, which you should pay promptly, but you do have a right to demand recom- pense from the broker, and you should do so, again in court if you have to. Now, there are of course alternative possibilities involving circumstances that are some combination of actions by the broker and the carrier. But I don't see any situation that involves some fault or failing on your part and for which you should be held econom- ically liable. When a shipper relinquishes custody and control of its goods to a carrier or broker for transportation pur- poses, it necessarily accords those parties certain rights in the goods' disposition. But that doesn't give them carte blanche to do as they will with the goods at the shipper's expense. Once the shipper has satisfied its economic obligations under the contract of carriage or shipping agreement, the carrier's/broker's duty is to treat the goods in the shipper's interest without addi- tional unforeseen delays or demands for supplementary compensation arising out of such delays. So my advice is that you should demand further information from your broker as to the reasons for this further delay in getting your shipment delivered, and act accordingly once it responds. You're pretty inspecific about why the shipment was held up in the first place, but I gather that, whatever the cause, you don't dispute your responsibility for the charges that initially accrued because of that. But the further delay after you "g[o]t things cleared up" is, as you recognize, a wholly different animal, and should be properly laid at the doorstep of whoever's responsible, be it the broker or the carrier. All things considered, if the facts are as you tell me, I'd think you would find a hospitable reception in court if you chose to take your case there, no matter whether the fault lies with the carrier or your broker. 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. If the additional delay is due to the carrier's convenience, it, and not you, should be responsible for the costs thereof.

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