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Q&A 52 THE JOURNAL OF COMMERCE SEPTEMBER 4.2017 By Colin Barrett Q: I WOULD LIKE to know your opinion on having brokers sign an addendum to a carrier agreement stating the following: "This addendum is part to the Carrier Agreement signed between carrier, ABC Hauling LLC, and (shipper) in regard to ABC's liability. This adden- dum will supersede any clause in the carrier agreement regarding carrier liability. "Liability for nonreceipt, misde- scription, and improper loading "(a) Liability for Nonreceipt and Misdescription — Except as provided in this section, a common carrier issu- ing a bill of lading is liable for damages caused by nonreceipt by the carrier of any part of the goods by the date shown in the bill or by failure of the goods to correspond with the description con- tained in the bill. The carrier is liable to the owner of goods transported under a non-negotiable bill (subject to the right of stoppage in transit) or to the holder of a negotiable bill if the owner or holder gave value in good faith rely- ing on the description of the goods in the bill or on the shipment being made on the date shown in the bill. "(b) Nonliability of Carriers — A common carrier issuing a bill of lading is not liable under subsection (a) of this section — "(1) when the goods are loaded by the shipper "(2) when the bill — "(A) describes the goods in terms of marks or labels, or in a statement about kind, quantity, or condition "(B) is qualified by 'contents or condition of contents of packages unknown,' 'said to contain,' 'shipper's weight, load, and count,' or words of the same meaning "(3) to the extent the carrier does not know whether any part of the goods were received or conform to the description "(c) Liability for Improper Loading — A common carrier issuing a bill of lad- ing is not liable for damages caused by improper loading if — "(1) the shipper loads the goods "(2) the bill contains the words 'shipper's weight, load, and count,' or words of the same meaning indicating the shipper loaded the goods." A: WELL, I DON'T SEE ANYTHING wrong with it, if that's what you're asking. Neither do I see much of a point. All your addendum does is quote verbatim the first two parts of Sec- tion 80113 of the Bills of Lading Act (49 U.S.C. Section 80113), which pro- vision of law would ordinarily apply anyway. Unless some other part of your Carrier Agreement says the Bills of Lading Act doesn't apply to service provided under the agree- ment, why go to all this trouble? In fact, Section 80113 is itself kind of purposeless, in my opinion. It seems pretty obvious that a carrier can't be held liable for things beyond its control or knowledge because of some act of the shipper in the load- ing and/or packaging of the goods. Indeed, that's the very definition of the "act of the shipper" exception to the basic legal standard or carrier liability, and there's copious judicial precedent to that effect. Why Con- gress went out of its way to codify this is baffling to me; I suppose our officious legislators must have some- thing to show for all the hours they tell us, come election time, they put in on behalf of us voters. Furthermore, the stat utor y language is actually kind of mis- leading. It seems to say that, in order for the carrier to escape liability for shipper-created loading problems, the bill of lading must actually be endorsed with wording specifically defining that the shipper did the loading and/or that the carrier had nothing to do with it. Now, I'm not going to argue that such language won't be helpful if questions crop up when a claim is filed; it saves a lot of trouble and senseless argument in court to spell things out. But my point is that the "act of the shipper" exception isn't dependent on what is or isn't stated on the B/L. The true question is one of fact. If the shipper did load and count the goods and can show that it did so accurately, the carrier is still going to be held liable. It's simply that the carrier isn't liable for mistakes made by the ship- per, which is where the question of proof comes in. In fact, that question will be the same whether the B/L is annotated as specified in Section 80113 or not. The notation simply serves to eliminate a potential area of dispute between the parties that a court will be obliged to resolve in adjudicating a claim. 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. CARRIER LIABILITY LIMITED BY ACTS OF THE SHIPPER It's simply that the carrier isn't liable for mistakes made by the shipper, which is where the question of proof comes in.

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