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Aug.7, 2017

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Q&A 68 THE JOURNAL OF COMMERCE AUGUST 7.2017 By Colin Barrett MEETING THE EYE TEST IN DAMAGE CLAIMS Q: SOME OF YOUR writings seem to suggest the carriers are ultimately at fault when cargo being transported is damaged en route. You seem to sug- gest strongly that the carrier (driver) should reject cargo if he or she deems it is improperly loaded. However, our drivers aren't always able to deduce whether or not the cargo has been properly loaded. How is the carrier able to protect itself when cargo has been loaded improperly without the driver realizing it? Your response will be greatly appreciated as I am fairly new to the industry and would like a better understanding of our responsibilities. A: WELL, I DON'T MUCH CARE for your phrasing, "carriers are ultimately at fault." The law of transportation carrier liability has nothing to do with assigning fault or blame. What the law says is that a carrier is generally economically liable for loss of or damage to goods in its custody without regard to fault — be it the carrier's fault, or somebody else's, or nobody's. That's what you're getting at. Now, as with most things of the law, this precept comes com- plete with a bunch of fine print — in particular, some exceptions. One of those exceptions is that the carrier is relieved of liability if the loss or damage resulted from some act of or omission by the shipper. And a typical such act or omission will have to do with the manner in which the goods are packed, loaded, and/or stowed aboard the transportation equipment. To be sure, it's not always the shipper or his agents who do, par- ticularly, the loading. But when they do, it's not uncommon for carriers to lay blame for any in-transit damage on faulty loading — an act of the shipper, getting it (the carrier) off the hook. Over the years, however, courts have carved out an exception to that exception, and it's to that your question relates. Here's the way one court put it: "Where a shipper tenders to a carrier goods for transportation which are insufficiently crated, boxed, packed, or loaded, and such insufficiency is discoverable by the carrier upon ordinary observation and inspection, it is the duty of the carrier to refuse to receive the goods . . . (I)f the carrier does accept the goods, it may not thereafter allege that any injury which they sustained in the course of transportation was due to such insufficient crating, box- ing, packing, or loading." Thomson v. C., M. & St. P. Ry. Co., 217 N.W. 927. Now, note that the court didn't say that the loading, etc., problem was "discovered" by the carrier, merely that it was "discoverable" — capable of being discovered. But it also said the "discoverability" need only be by "ordinary observation and inspection" — nothing remark- able, just a look or so; the carrier isn't expected to be Sherlock Holmes. And therein lies the answer to your question. Your drivers can't simply avert their eyes while the shipper's loaders toss things aboard higglety-pigglety. If they see some- thing amiss with the loading, they have to speak up firmly, even to the point of refusing the load. Otherwise they compromise your defense if the improper loading leads to damage. That's the extent of their respon- sibility, though. I'm aware that in the real world a driver's opportu- nity to observe the loading process, and/or to examine the load once it's been stowed aboard the vehicle, is at times limited. Some shippers won't allow drivers to hang around while loading is in process; often it's a matter of insurance requirements to limit exposure to personal injury. In some cases, the driver is directed to wait somewhere else while his empty trailer is filled, and the next time he sees it the doors have been sealed by the shipper's personnel. Or, at most, the driver may watch the loading only from a distance. In such circumstances, it would be unrealistic to suggest that even a pretty egregious error in loading was discoverable by the driver at the time. I know courts are often criti- cized for their lack of relevance to real life, but they're not completely out of touch. No court is going to rule that a driver should have rec- ognized something that he or she couldn't even see. Which is to say that you needn't worry about how to protect yourself from the consequences of undis- covered loading problems. So long as your drivers don't fall asleep, the facts should protect you. 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; email Contact him to order the most recent 351-page compiled edition of past Q&A columns, published in 2010. Well, I don't much care for your phrasing, "carriers are ultimately at fault."

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