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Q&A 52 THE JOURNAL OF COMMERCE www.joc.com APRIL 4.2016 By Colin Barrett L&D CLAIM'S STOPWATCH Q: IN YOUR FEB. 22 column, "Loss, Damages and Limitations," you state that a shipper must file a freight loss- and-damage claim within the nine- month time limit prescribed by statute. Does a shipper satisfy the statu- tory time limit by filing notice of a claim within the nine-month time limit, with a determination of the complete damages to come sometime after that period (where the full damages are not ascertainable at the time)? A: YES, PRETTY CLEARLY according to virtually all legal precedent I've been able to locate. You must, how- ever, be a little careful here to dot all the legal i's and cross all the t's. You probably won't get much argument on this score from any- one except motor carriers, but some truckers could give you a hard time. The main reason harks back to half a century ago, when the late Reginald C.G. Witt was executive director of the motor carriers' National Freight Claims Council. Now Reggie, although not an attorney, was pretty knowledge- able about L&D claims, but he did have his quirks. One of them was his unyielding view that claims must be "perfected" by shippers at the time they were filed — that is, within nine months from the event — meaning the shipper had to specify the dol- lar amount of the claim. He dug up a couple of judicial decisions to back him and spread his opinion far and wide through his writings. A lot of motor carriers swore by his position, and the idea has filtered down over the years to the present day when some carriers still hold to that (mis- taken) view. The thing is, Reggie's handful of citations weren't really in point (not "on all fours," as lawyers are wont to phrase it), and innumerable other courts have said the oppo- site. The rule is that a claim must include a demand for "a specified or determinable amount of money" (Code of Federa l Reg ulations, 49 CFR Section 370.3( b)(3)), but "determinable" doesn't mean the determination need be made at the time the claim is filed so long as — and this is critical — the claim makes crystal clear that some (albeit per- haps unspecified) amount of money is being demanded. It doesn't matter that the exact amount isn't known right off. But you can still find copies of Reggie's publications around, and for some carriers, it's all the writ - ten information they have on hand. So from time to time you may run into resistance from carriers to accept a claim that doesn't specify exact damages. I might add that such a claim will be an administra- tive headache to the carrier, which would probably like a better idea of how much money is at stake before you get around to researching the dollars and cents in your own sweet time. Still, you asked whether such a claim successfully tolled the time limit, and I can tell you that it does. As I've mentioned, your claim does have to ask for monetary damages (otherwise it's not legally a claim), even though you need not spell out the amount. Just pick some dollar sum out of a hat. You're always free to revise the claim, including your dollar demand, later. But don't delay finalizing your demand indefinitely, and watch out for one possible pitfall: If you dawdle about giving the carrier your final number, it may retaliate by offering you some paltry "settlement" — say a dollar, or something like that. Now, that offer may be palpably ridiculous in the real-world circum- stances, but the law doesn't care about that. It's an offer, which is all the law requires, and accord- ingly it triggers another clock — the two years and a day that you have to file suit if you can't later reach agreement with the carrier on some more realistic settlement. How- ever much you may negotiate with the carrier to reach that agree- ment, your time limit for going to court will be measured from the date of the carrier's initial offer to you. So if you fiddle around about this, you may find you're play- ing with your own time. I've seen situations where shippers have mis- takenly thought they had unlimited time so long as the carrier continued to discuss the claim with them, but that's not the case. Once you get a written offer of any sort, you're "on the clock," as it were. If you have to sue, better be sure you get that filed timely, as well. 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, BarrettTrn@aol.com. Contact him to order the most recent 351-page compiled edition of past Q&A columns, published in 2010. So if you fiddle around about this, you may find you're playing with your own time.

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