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Nov.10, 2014

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Q&A 76 THE JOURNAL OF COMMERCE NOVEMBER 10.2014 By Colin Barrett ALTERED RECEIPT: IS CONSIGNEE ALL WET? Q: WE ARE A third-party/broker, and as such get involved in loss-and- damage claims for our customers. I have a current cargo claim where the proof of delivery provided by the claimant/consignee and the proof of delivery provided by the carrier don't match. We received the origi- nal from the carrier, and there was no evidence that anything had been removed or erased from the docu - ment. There was no exception on that document. The copy of the proof of delivery that we received with the consignee's cargo claim has the notation "received wet." The cargo was steel coils, and the water caused damage. The water damage isn't in dispute; when the damage occurred is the issue. I realize a clear POD doesn't nec- essarily exonerate a carrier, but I'd think water on steel coils would be noticeable at delivery and therefore should have been marked on the deliv- ery receipt while the driver was at the consignee. We have no way to know what happened to the coils after the driver left. Is there some law or regulation that forbids altering the delivery receipt outside the driver's presence? Of course, these types of situations only happen with your largest cus- tomer, so I need to make sure I have all my ducks in a row before I proceed. I'd really appreciate any advice you can offer. A: THE TENOR OF YOUR QUESTION tells me t hat you a ren't rea lly looking for advice but rather con- firmation of the conclusion you've already reached. With the facts you've presented, I think a ny reasonable person would reach basically the same conclusion. You say the POD pro - vided to you by the carrier was the original document and showed no indication of any erasure or other alteration. If that's the case, the only alternative is that something was added to the non-conform- ing copy provided to you by the claimant — to wit, the notation a bout t he ca rg o hav i ng been "received wet." In other words, the document provided by the carrier is in the form it was when it was executed on the delivery dock at the time of delivery. The version given to you by the consig nee/claimant represents an afterthought by the claimant, presumably after the fact. In that context, it 's a ver y damning afterthought. I agree with you that signifi- cant moisture on steel coils should have been evident at the time, and, given the vulnerability of the cargo to moisture-caused damage, should have been noted at the time. The fact it apparently wasn't suggests pretty strongly that the wetness occu r red a f ter t he con sig nee received the goods and they were in its custody. The fact that the consignee saw fit to after-the-fact add the notation certainly hints at an effort to disguise this and there- fore transfer responsibility to the carrier. There is in fact no law or regu- lation forbidding this alteration of the POD, but there is a law against fraudulently altering any document. The filing of this claim backed by the altered POD basically constitutes an attempt at fraud — an effort to demand money from the carrier based on falsif ied information. Strictly speaking, that constitutes a crime. I'm sure no one could prove such a crime, but all the informa- tion you've given me suggests that it indeed took place. This clearly places you in a dif- ficult position. You're obviously reluctant to tell your very good customer that its own customer, the consignee, is a liar and a cheat. But that's what the evidence indi- cates, and it's diff icult to come up with any usef ul alternative. I'd suggest you try to handle this quietly with the consig nee, but that option is fraught with risk for you. If you simply contact the consignee, you give it the oppor- tunity to protest about you to your customer, the shipper, giving you a problem there. On the whole, I think your best course is to present your conclu- sion, and the reasons for it, to your shipper and tell it why you are unable to proceed with this claim. This obviously needs to be handled diplomatically, but I think you also need to be as frank and open as required to get your point across. This can't be a matter of "saving face" — with the falsified POD, the consignee already has taken things beyond that point — and we're well past the stage where the situation can simply be ignored. I can only wish you good luck in tr y ing to extricate yourself from the awkward situation into which you've been unwittingly thrust. 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; e-mail, Contact him to order the most recent 351-page compiled edition of past Q&A columns, published in 2010.

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