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April 27 2020

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44 The Journal of Commerce | April 27 2020 www.joc.com By Colin Barrett Q&A Q A Tally sheet shortage A local motor carrier dropped a trailer at a retail vendor's dock. The driver was told to leave and that the vendor would call his dispatcher when the trailer was loaded. The vendor called later in the day, and a driver and bob- tail tractor were dispatched to pick up the load. The bill of lading (B/L) showed 2,285 cartons, and the driver signed it and sealed the trailer, noting both the 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 that document 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 sure that 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 ship- per 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 — or rather, claimed — number. Possibility No. 2 is that the shipper's B/L preparer, 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 were 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. A manual inventory of the product(s) involved will show 22 cartons over, in which case the first possibility (faking the tally sheet after the fact) is probably true, or the 22 cartons really went missing, in which case No. 2 looks pretty good. What doesn't seem possible to me in the circumstances you describe is that the 22 cartons went missing while the shipment was in the carrier's custody, which would there- fore make it liable. The intact seal goes some of the way to support this, but the B/L count is the real proof. Legally speaking, the B/L count provides the car- rier with a near-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 responsibil- ity in full. I doubt that a court would even allow the tally sheet to be introduced into evidence, and it certainly wouldn't accord such a document anything close to the weight of the contract. 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 (con- fronting 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 often question shortage claims in these circumstances and challenge the shipper's ethics in pres- suring a driver to sign for an unverifiable count. But in this case, the count backs up the carrier's posi- tion, not the shipper's, and I can conceive of no possible motive for the shipper to falsify it — mistakenly or delib- erately — in this way. As such, I see no carrier liability. 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 The B/L count gives the carrier a near-absolute defense against any shortage claim.

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