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March 2 2020

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114 The Journal of Commerce | March 2 2020 www.joc.com By Colin Barrett Q&A somebody pays somebody else the difference, but that's playing games with (comparatively) pennies, and I'm not going to do that here. In fact, you came off lucky this time. This carrier, un- known to both you and the logistics provider, could have simply absconded with the load, the liability for which you and your customer and its logistics provider could have had a fine old time debating while the shipment re- mained untraceable. That this didn't happen was due to your good fortune that everybody around seems to have behaved with integrity, if not with good sense. But the mere fact that the carrier acted honestly doesn't give it a right to collect money for violating the contract of carriage. That contract wasn't intended for this carrier from the start, but the carrier nevertheless subscribed to it by accepting both it and the shipment itself, and is accordingly bound by the contract terms, which said to take the goods to a named consignee at a named place. The fact that this wasn't the intended carrier is irrelevant. Actually, had the carrier delivered correctly, I'd entertain an argument that it was entitled to be paid for that service and that you yourself should be doing the paying since it was your carelessness that resulted in tendering the load to that carrier. Certainly its effort to collect from you would be pretty defensible in those circumstances. But now we're talking about how if we had some ham, then we could have ham and eggs, if we had some eggs, and this column isn't about what-if scenarios. In your shoes I'd be inquiring how the carrier came to try to pick up a load at your facility, and correcting your loading dock irregularities that led to this whole mess, rather than worrying about paying a carrier for a service that it didn't perform correctly for you. Let's keep our eye on the ball, OK? JOC Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at 5201 Whippoorwill Lane, Johns Island, SC 29455, phone (843) 559-1277, e-mail BarrettTrn@aol.com. For compiled past columns and other transportation-related publications visit www.lopress.com/bookshelf.pdf. Q A We are a small company without a dedicated shipping department. Our customers arrange pickups via freight forwarders. We had cargo picked up by what we thought was the cor- rect carrier; the driver responded affirmatively when asked to confirm he was collecting cargo per our bill of lading (B/L), and he signed the B/L and accepted the load. We found out later that this was another carrier entirely. That carrier unloaded our product at another com- pany — not the destination — and we had to work with the logistics provider to arrange for another carrier to retrieve it and deliver it to the correct customer. The carrier has just now contacted us — months later — about invoicing the freight charges. The logistics provider is not responsible, as this is not a carrier with which they are affiliated. The carrier is saying they want to invoice us. Can we dispute this, seeing as (1) they should have never accepted the cargo when they saw the B/L, and (2) it wasn't delivered as consigned? Any advice you can share regarding the mechanisms of determining freight responsibility would be greatly appreciated. THIS IS A carrier with a remarkable supply of chutzpah. That's a Yiddish term said to represent the character- istic of an individual who kills his mother and father and then, when prosecuted for his crime, pleads in court for mercy on the grounds that he's an orphan. Frankly, I'm baffled as to what basis this carrier be- lieves it has for any entitlement whatsoever to its freight charges. I'm less impressed by your first argument, that the carrier should have refused the load when you care- lessly gave it to him; it was your responsibility to ensure that this was the correct carrier, and simply asking the driver didn't discharge that responsibility. You really need to work with your customers to make sure you're properly informed about carriers authorized to pick up their loads. But your second argument is decisive. The carrier did accept your B/L stating where the shipment was destined. It then proceeded to ignore that directive and take the goods someplace else, causing, as you say, con- siderable inconvenience and expense to you and/or your customer's logistics provider to retrieve the misdirected shipment. If any money is owed for this fiasco, it seems to me that the carrier owes it to you or the logistics provider, and at least one of you has a claim against it for misrout- ing, to which I can see no viable legal defense. Now, I guess you could weigh the amount of this claim against the freight charges the carrier now wants to collect and A case of carrier 'chutzpah' I'm baffled as to how this carrier believes it has any entitlement whatsoever to its freight charges.

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