Articles & News

Suggested Procedures:  Shipper Load & Count, Shipper Seals
By: George Carl Pezold
We receive a lot of questions involving shipper’s seals.  Here are some recommendations and procedures for typical sealed “Shipper Load & Count” shipments (where driver is unable or not permitted to observe count and condition of the product).
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By: George Carl Pezold
We often get questions about delay claims and whether damages can be recovered. The simple answer is “Sometimes” but it depends on the individual facts and circumstances in each case.
A carrier is required by law to deliver with "reasonable dispatch". There is no question that delay can cause actual damage, and if so, such damage may be recoverable. As the Supreme Court said in New York, P. & N. R. Co. v. Peninsula Produce Exch. of Maryland, 240 U.S. 34 (1916):
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The Basics
Concealed Damage or Shortage is defined as damage or shortage that is not discovered (or could not be discovered) until after the carrier has completed delivery of the goods.  It can occur in three ways: (1) the goods were already damaged or were not loaded on the truck at origin; (2) there was damage, theft, pilferage, etc. while the goods were in the possession or control of the carrier, or (3) the loss, damage or shortage occurred after the carrier had completed delivered of the goods to the consignee. Click here to read article

By Air Or By Ground - Does It Matter?
Federal Express recently announced that its FedEx Express unit, which handles time-definite shipments typically moving by air, will contract with its FedEx Ground unit to deliver residential parcels as long as they meet specific operating criteria. Click here to read entire article.

A recent trend which merits scrutiny by transportation claims professionals and the legal bar is the purported preemption of certain claims against brokers who arrange interstate motor carriage of goods. Some courts have essentially established a de facto state of immunity for property brokers who fail to exercise due care in the manner in which they transact business, whether it be by hiring unqualified or unsafe carriers, or carriers which do not maintain adequate insurance for the specific cargo to which they are dispatched, or who otherwise violate their common law duties to their customers and the public.

Trucking companies come in all sorts and sizes from little one-truck companies to giants like UPS and FedEx.  There are an estimated 790,000 companies that operate commercial motor vehicles, including private fleet and “exempt” carriers, which are registered with the Federal Motor Carrier Safety Administration (“FMCSA”), of which about 240,000 are active interstate “for hire” carriers that serve the general public.  There are also about 20,000 licensed freight brokers - intermediaries that arrange for motor carrier services on behalf of shippers and receivers of freight. 
Many large retailers and distributors control their inbound freight.  They arrange for the transportation, have contracts with the carriers, pay the freight charges, and require their vendors to use only their designated carriers.  And often they have "drop trailer" agreements with their carriers. 

Fines for Late Deliveries or Missed Appointments

Recent articles in the trade press have described “fines” that are levied by major grocers on refrigerated carriers transporting perishables for late deliveries and missed delivery appointments.  Among the retailers that have been named are three major grocery chains, Kroger, Safeway and Wal-Mart.  While it is well known that delay (and temperature abuse) can cause or contribute to spoilage or shortened shelf life, the carriers complain that often these penalties are unfair because they fail to recognize the problems that carriers run into with severe weather, bad roads, congestion and hours of service limitations.

We often get questions about which party (the shipper or the consignee) is entitled to file a claim for freight loss or damage.  

Background:  TRUs are refrigeration systems that are powered by diesel internal combustion engines (inside the same housing) designed to control the environment of temperature-sensitive products that are transported in trucks, trailers, shipping containers, and railcars.  

Does a broker have a duty to hire a carrier with adequate cargo insurance?  - This question has come up a number of times on the Council's Q&A forum, so we thought that this short memorandum might be of interest.  Two court decisions that address the question of whether a broker has a duty to hire a carrier with cargo insurance that adequately covers the commodity and/or value of the shipper's goods are discussed below

Imposter Theft - Can A Carrier Be Liable? - Unfortunately, impostor thefts have become all too common, partly because it is all too easy for thieves to obtain information about high-value shipments and how to steal them from various sources: truck stops, load boards, rate quotes, websites, emails, insider tips, etc.

CARGO LIABILITY OF MEXICAN MOTOR CARRIERS - Many U.S. companies are doing business in Mexico and questions frequently arise about the liability of Mexican motor carriers for cargo loss or damage.

CARB Reefer Regulations to Become Effective January 1, 2013 - New California Air Resources Board (CARB) regulations will become applicable to reefer-equipped trucks, tractor-trailers, shipping containers and railcars for the transport of perishable goods on California highways or railways that will impact brokers, forwarders, shippers, receivers, carriers and drivers.

Anti-Indemnity Clauses in Transportation Contracts - Many shippers have been including broad indemnity clauses in their transportation contracts. Recent legislation could make these clauses void or unenforceable.

How to File a Freight Claim for Loss or Damage - The Council's popular information booklet on "How to File a Freight Claim for Loss or Damage" has been completely revised and updated. You may wish to print it out separately and retain it as a handy reference.

Wells Fargo - CSA Good Intentions - Critical report on the FMCSA's methodology for rating motor carriers in Compliance, Safety, Accountability safety program.

The FMCSA's "5-Year Strategic Plan" - New Regulations?

Broker out of Business?  Are trucking companies and/or their collection agencies seeking payment of freight invoices that you already paid to your broker?  Do you have to pay these charges . . . maybe?