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August 17 2020

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60 The Journal of Commerce | August 17 2020 www.joc.com By Colin Barrett Q&A Q A Cold claims We, a motor carrier, picked up an LTL shipment of frozen foods in Seattle for delivery in Atlanta. Without notifying our dispatcher, the shipper put a temperature recorder accompanying the shipment. The recorder was listed on the bill of lading at time of pickup. The product was delivered in June, and the bill of lad- ing was signed without notation. It is now October, and for the first time the customer is now claiming the shipment was subject to temperature variations of between 3 and 40 degrees over a period of eight hours during the weeklong transit time. Does this fall under the nine-month window to file a claim? If so, when a consignee signs for something without notation, does it really mean anything? AS TO YOUR last question, it seems to mean this consignee didn't check the temperature recorder at the time of delivery. Certainly the claim is within the nine-month per- missible period for filing. June to October is only four months, so the claim is timely filed. I know carriers like a short fuse for concealed damage claims, which given the consignee's failure to check the temp recorder on delivery, this is. Item 300135 of the National Motor Freight Clas- sification, for example, purports to set 15 days as a maximum period for reporting concealed damage. But the carriers' preference doesn't alter the shipper's rights under the law. Still, there's some phrasing in Item 300135 that does pretty much comport with the law; it says that, for concealed damage reported more than 15 days downstream, "it is incumbent on the consignee to offer reasonable evidence to the carrier's representative…that loss or damage was not incurred by the consignee after delivery." The law doesn't go that far, but it does require claimants to prove that damage took place while the goods were in the carrier's custody, and lengthy delays in reporting damage obviously make this tougher. I can understand the consignee's failure to check the temp recorder at the time of delivery, as the process can be tedious. But what happened in July, August, and Sep- tember? And what became of the goods meanwhile? To successfully maintain its claim in court, the claim- ant would have to overcome the taint that the lapse of time has cast on the temperature recorder information. First, it would have to show it still has the goods in its possession. Next, it would have to show that the alleged discrepancy in the transit temperature reduces their value by some objective measure, or requires remedial action — e.g., flash freezing — at a specific cost. Finally, you'd be entitled to challenge this evidence on the ground that post-delivery handling by the consignee was actually responsible for the damage, a challenge it would be obliged to rebut. Mind you, I'm not saying this burden is insuperable. Especially if the "period of eight hours" during which the temperature allegedly varied so dramatically coin- cides with a time when the shipment was platformed, another delivery from the van was being made, the driver reported trouble with his reefer unit, etc., it's quite possible that the event did occur, the consignee simply has sloppy claim-filing practices, and you're lia- ble. But the claimant faces a fairly steep climb to prove that after so much time has lapsed. What I've described, however, is how this would play out in court. Your question is couched in more pragmatic terms: in effect, what should you do? My suggestion is that you respond to the claim with a series of inquiries basically challenging the claimant to meet the same burden of proof a court would impose, as outlined above. If it provides you the responses and evidence required, you'll then have a factual basis for evaluating the merits of the claim. One other possibility occurs to me. Rather than responding to your inquiries, the company could simply "set off " the claim against freight charges it owes you. In such a case, I'd sue, not only for the unpaid charges but any applicable late-payment penalties. That would com- pel the claimant to prove its case in court as a defense against your suit, which won't be easy. Lastly, you make much of the temperature recorder being installed "[w]ithout notifying the dispatcher." Why should the dispatcher have been notified? Why, for that matter, is it relevant that the recorder was noted on the B/L? In the shipper's shoes I'd do both, the better to encourage more careful handling of the load, but neither is required in law or commercial practice. 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 BarrettTrn@aol.com. For compiled past columns and other transportation-related publications visit www.lopress.com/bookshelf.pdf. The carriers' preference doesn't alter the shippers' rights under the law.

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