Q My trucking company recently received a claim on a sealed load. Our driver was not allowed on the dock to observe the loading of the shipment. A seal was attached, and the seal number was on the bill of lading. The seal was intact at time of delivery, was removed by the consignee, and the contents consisting of 26 shrink-wrapped pallets were received without exception. We have now received a claim for shortage. The shipper claims that because the bill was not noted “shipper load and count” we are liable for a subsequently discovered shortage in the piece count, even though we have a clear delivery receipt. Can this possibly be right?
A You have a meritorious defense to the shipper’s claim. You should insist that your drivers be allowed to place a “shipper load and count” notation on the bill of lading when you do not observe the loading, but the absence of this notation does not destroy your legal position.
Under the Bill of Lading Act, a carrier is not liable for the count when the goods are loaded by the shipper, the carrier does not know whether any part of the goods were received or conform to the description on the bill of lading, and the description of the goods is qualified by the terms “shipper’s weight load and count,” “said to contain,” “contents or condition unknown” or words of the same meaning. Sophisticated carriers use this statutory language to trump efforts by shippers to hold them accountable for shortage claims in the circumstances you mention.
To prove a shortage claim, a shipper must prove (1) delivery of the goods to the initial carrier in good condition, (2) damage of the goods before delivery to the final destination and (3) the amount of damages. [Con-Air Corp. v Old Dominion Freight Lines, 22 F.3d 529, 531 (3rd Cir. 1994); Missouri Pacific R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 138 (1964)]
Courts have held that where merchandise is sealed in a trailer and the contents are not open and visible, the shipper must establish by direct evidence that the goods were delivered to the carrier in good order. [Bluebird Food Products Co. v. E&O Railroad, 329 F. Supp. 1116 (E.D.Pa. 1971), D.P. Apparel Corp. v. Roadway Express, 736 F.2d 1, 4 (1st Cir. 1984)].
Because your driver did not oversee the loading and the seal was intact, the shipper will have to prove through evidence other than the bill of lading that all of the alleged cartons were loaded on the shipment at time of pickup. Because the seal was intact at the time of delivery, the shipper will have a difficult, if not insurmountable, task proving that all of the cargo was loaded and that correct quantity was not actually delivered.
You also are blessed by having a clear delivery receipt – evidence that you delivered the shipment intact and without loss or shortage. As a carrier, you should be skeptical of any count made after the consignee signs the bill of lading. The claimant will have a hard time convincing a judge that you are bound by the bill of lading count at time of pickup but that you can’t rely upon the clear delivery receipt at time of delivery.
Finally, you mentioned that the shipment in question was shrink-wrapped onto pallets, yet the shipper has attempted to hold you responsible for a piece count. Even if your driver had been present at the loading, he could not have ascertained how many cartons were on each pallet. It is for this reason that drivers are properly instructed to sign for the number of pallets received “said to contain” the number of cartons shown on the bill of lading.
Henry Seaton is a lawyer who represents carriers in contract disputes, collection matters, cargo claims and insurance questions. E-mail hseaton@eTrucker.com.