Poor securing by shipper, however, driver still accepted load?

TransAction

Active Member
#1
Hi All,

I have a current situation that is not new, but hoping to get feedback from you guys and gals. We have a client who ships with us regularly and it's typically JOT manufactured goods for warehouses across Canada and the USA. In short, at times we pull trucks out of our asses last minute for them regularly.

In this instance they had 2 conveyors that needed to be in Montreal next day that where about 20' x 3' ea. at 1000 lbs. ea. They typically don't give us a lot of detail on the freight just what type of equipment they need asap. This particular scenario required a 53' foot dry van, they called it in a 2pm and that day we got one there at 4pm to be delivered next day in Montreal. It picked up and upon delivery we got a call from our customer, severely angered that the freight was damaged.

Trying to be as short as possible here, take a look at the pic I am attaching seeing how they loaded this freight. They are complaining that the driver showed up with no straps so they used one of their own. Our stance is, they never asked for straps. That being said, should the driver had accepted the way this is loaded? Who is at onus here? Looking forward to your feedback.
 

Attachments

Jim L

Active Member
#2
The issue is two-fold, as always.

The law states that the driver is responsible for ensuring that the load is safe and secure for travelling on the highways. Unfortunately the driver is often not allowed on the dock, in the trailer or is treated like a pee-on and told that they always ship it like this. Load securement usually only pertains to flatbeds or open trailers and van trailers, such as the one in this example, usually go to the shipper's discretion. Dry van drivers don't get a lot of experience with what works and what doesn't work when it comes to load securement and there is no specific training program for this - only common sense.

The shipper, unless he has specific experience with his product, has no idea what is involved and has no specific training. The forklift driver is just told to put this stuff in the truck that comes.

Here comes the two-fold. Damage free freight requires the shipper or the driver or both to ensure it is packed properly for transit. In this case neither party took the loading process serious enough and the end result was damaged equipment.

Your question about where does the onus lie? On both the carrier and the shipper. The shipper didn't ask for more straps and allowed it to leave in this manner. The driver representing the carrier didn't check and demand that it be secured better. There may be a lot more underying issues as well. Does the driver speak the language? Was the driver allowed on the dock? Was it communicated that the freight would be equipment and needed straps? Etc, etc. If there is a claim, it will probably be paid outright by the insurance company because the insurance company doesn't want to deal with it and will just place it on the loss run to raise the rates later. You cannot defend it in court because the it was not damaged on site and was damaged in transit en-route under the care and control of the carrier.

Nobody is in a winning situation here with this but the carrier will probably pay more than his fair share because the guy with the money (ie shipper) makes the final decision what to pay.

Just to add, the carrier never wins. We have been in this situation way too many times. If the driver did put more straps on there is a complaint that it scratched the paint, or bent a bar and was not authorized. The damage to the inside of the trailer will need to be addressed. The business relationship will be smeared. All the carrier can do is learn from this situation and address it with a policy/procedure that will avoid this in the future. I cringe whenever I see freight like.
 

loaders

Site Supporter
#4
No question, the driver has the legal responsibility to ensure the load is safe and secure for travel on the roads, regardless if it is a flat bed or closed van. In addition, the shipper must ensure that any load or shipment that they offer to a carrier, must be able to withstand the regular rigours of over the road transport. As an example, no one would offer loose eggs for transport that weren’t probably packaged, or sheets of glass. Your best course of action is to file a freight claim with the carrier. You could also advise your own insurance provider of the situation in case the carrier’s insurance declines the claim. Try to use this situation as a learning experience for your customer to prevent future similar problems. Last, but not least, be prepared to perhaps lose a customer, some money, or both.
 
#5
Now I have some time on my hand, so...
Loaders is right as well.
It's a learning lesson for a shipper, that YOU need enough time to select and and inform a carrier for a load..
Even pizza delivery done with more diligence....
In any case, good luck and have enough patience to educate shippers, carriers and yourself, eh...
 

Salma

Active Member
#6
As a rule, whenever we pick up freight that the shipper has secured themselves, the driver notes that on the BOL. "Shipper load, count and secure" or "driver not allowed on dock" or something else along those lines. If the shipper protests, the driver doesn't leave the dock until it is resolved because unfortunately once the driver leaves the dock, he is accepting the load in the manner that it was loaded. Any damage that happens in transit falls on the carrier, in most cases.

As far as the shipper is concerned, if a truck shows up without sufficient equipment to secure the load then they should not be loading it - period. Also, the shipper clearly did not know how to pack, handle or secure this type of freight. What @Jim L said is bang-on. Both shipper and carrier are at fault here but unfortunately it's usually the carrier that loses in these situations. The shipper has an "easy out" once that truck leaves the dock.

One of the first things I noticed in that picture (among many other things) are the unblocked/unlocked wheels on the equipment. Well that is a major no-no when shipping freight with wheels. But that is a whole other discussion on it's own.

In this particular case, more straps might have created more damage to the freight but I'm curious why the driver did not have any straps at all when he showed up? Even if the carrier doesn't know what type of freight is being picked up, the goods still have to be secured in some manner. So...... again, another discussion can be had about that too.

Sorry for the novel but soooo many things were done wrong by both parties so hopefully something fair can be figured out.
 

TransAction

Active Member
#7
Thanks for the feedback guys. All your points do reinforce our thoughts on this. I'll be putting the claim in to our carrier today.
 

Freight Broker

Well-Known Member
#8
Up to the broker/carrier to ask details about the freight and to determine what securement devices are required.. i.e. how many straps or load bars or chains etc. Nobody has the details and then its the driver's fault when he/she makes a judgement call under pressure.. not really fair although in this case the driver might have alerted his carrier to insufficient securement. Can't hang it all on the driver though.. he's told to go pick it up with scant detail as to what it is.. The remedy is to insist on more detail up front.. from the customer. Garbage in.. garbage out..
 

MarkD

Site Supporter
#9
Lazy, ignorant care free shipper. If they let him pull away from the dock like that shame on them. They should have blocked the wheels to the floor. More straps would have been better then nothing but they might dameage paint or electrical components while they jiggle all the way to MTL. If I put my owner operator hat on I would never have left the dock like that. If I'm wearing a company driver hat I may say shipper knows best and take it back to the yard and go home. Shippers passing the buck big time on this one. If they have no pride in thier product why should some stranger. Fire the idiot who loaded it and let him and the driver split the repair costs.
 

lowmiler88

Site Supporter
#10
Ultimately the drivers fault, should never have left the dock like that. Yes the shipper should have loaded it properly but still the drivers fault.
 

PackRat

Site Supporter
#11
I'll jump in with my 0.5 cents as it's not worth a penny lately! LOL...goods are not packaged for transport so this will be an easy one for insurance to decline the claim. Even if the driver wasn't allowed on the dock, once he pulled out to close his doors he should have stayed right there until they secured that freight. Was never going to go down the road safely....even a short haul like MTL. Goods are on wheels are (*&&! sake!
 

economy

Active Member
#12
Ultimately the drivers fault, should never have left the dock like that.
Absolutely disagree. Hate nor understand how could drivers be blamed for everything. Do not wish to repeat all the points mentioned above.

In fact, transportation transaction in most cases is passing of the goods and its ownership from one party to another. Truck is just the means for goods relocation. The owner of the goods has a duty of care to ensure goods are well packaged and secured. If it comes to the point of shipper not knowing how to do that, then attention should be turned to a knowledgeable party, usually it's a freight broker who must be aware of all the circumstances to advise their client - the owner of the goods. Advise on how things should be packaged and secured for transportation. Isn't it a responsibility of the broker? I doubt its limited only to allocation of the truck for movement.

I have no doubt carrier insurance will decline the claim.

Don't make a scapegoat out of the drivers and carriers, they are under pressure as it is. Shipper did not care for its own goods, shipper should take the responsibility for the damages. Else, why not to claim from Broker and its insurance policy?

For someone who is curious to check out the legal minds view on the subject, please search up the case law Boreas Logistics vs FLS Transportation. Case of a similar nature when carrier was found not liable for the damages of the goods during transit; period when carrier was in possession of the goods.
 
#13
Absolutely disagree. Hate nor understand how could drivers be blamed for everything. Do not wish to repeat all the points mentioned above.

In fact, transportation transaction in most cases is passing of the goods and its ownership from one party to another. Truck is just the means for goods relocation. The owner of the goods has a duty of care to ensure goods are well packaged and secured. If it comes to the point of shipper not knowing how to do that, then attention should be turned to a knowledgeable party, usually it's a freight broker who must be aware of all the circumstances to advise their client - the owner of the goods. Advise on how things should be packaged and secured for transportation. Isn't it a responsibility of the broker? I doubt its limited only to allocation of the truck for movement.

I have no doubt carrier insurance will decline the claim.

Don't make a scapegoat out of the drivers and carriers, they are under pressure as it is. Shipper did not care for its own goods, shipper should take the responsibility for the damages. Else, why not to claim from Broker and its insurance policy?

For someone who is curious to check out the legal minds view on the subject, please search up the case law Boreas Logistics vs FLS Transportation. Case of a similar nature when carrier was found not liable for the damages of the goods during transit; period when carrier was in possession of the goods.
Totally understand all of these points. There is more to this. This was a last minute booking late in the day and the customer told us they just needed a 53' dry van asap and we pulled it for them. Normally I agree, we are diligent in instances where if someone said to us, hey, we are shipping two 18 foot conveyors on casters, we would have said, hey, you need straps, bars, and a wood floored truck with the ability to screw in braces. I didn't mention this earlier as it was a long story but obviously pertinent information. All and all, prior to this post I had a meeting with my client with 5 others in their boardroom including the person who booked the load, the shipper who loaded it and senior staff. I told them it was basically negligent for them to load something in this fashion without notifying us prior to the shipment or the loading requirements. Further more, it was also negligent for them to use one of their own straps and expect this to arrive in good condition. However, I also agreed the driver should have said he is not transporting it this way. I also stated that the safety of transport falls on both parties as a team effort to ensure safe and secure transport. The worst case here could have been this causing an accident resulting in death. Then who would be negligent?
I believe the answer would be the shipper, us as the broker and the carrier / driver.

Again, I appreciate everyones feedback here and do not disagree with any of the sides taken.
 

lowmiler88

Site Supporter
#14
We have 70 drivers and we would have 1 less if they moved this load, it is in the care, custody and control of the driver and it is the drivers responsibility to make sure what he takes on the road is safe. If the government ever makes the shipper responsible then you have a case but at this moment it is on the carrier. I'm not saying I agree with it but I'm telling you how it is. We are supposed professionals and it is our responsibility to do things right according to the law.
 
#15
We have 70 drivers and we would have 1 less if they moved this load, it is in the care, custody and control of the driver and it is the drivers responsibility to make sure what he takes on the road is safe. If the government ever makes the shipper responsible then you have a case but at this moment it is on the carrier. I'm not saying I agree with it but I'm telling you how it is. We are supposed professionals and it is our responsibility to do things right according to the law.
10/4 on that
 

Michael Ludwig

Well-Known Member
#16
lowmiler88 is 110% correct. The issue at hand no one's fault but the driver's. The law states ... I'm paraphrasing here ... "you accepted the load and allowed it on your trailer. It's your responsibility.".
It says so right there on the bill of lading.
There is a bill of lading, right ????????????
 

loaders

Site Supporter
#17
Absolutely correct boys! Yes, the shipper must ensure that the goods are properly packaged, but once on the truck and signed for by the driver, the carrier has agreed that the goods are OK for transport and he assumes the responsibility from here to delivery.
 

economy

Active Member
#18
This discussion takes a wrong spin. TransAction has made a post to obtain our opinion to learn from and establish their position towards the matter (I clearly see that TransAction has succeded by reading their reply). Picture of the conveyors was attached, situation was described of some conveyors loaded and secured by the shipper got damaged during the transit. To my assumption, the damage has occurred as loaded conveyors banged against each other and walls of the trailer during the transit. During transit, trucker was not involved in any accidents, nor was any harm done to any other party.

In my previous response, I have posted a CASE LAW Boreas Logistics vs FLS Transportation describing a very similar issue and how it was ruled in the court of law by the judge.

Is the TransAction case arguable for whomever liable? Of course it is. To our opinion, insurance claim filed against the carrier to be rejected. Also, if the case gets before the judge, with proper representation and referring to the case law mentioned above, I'd place my bet on the carrier to be found NOT liable for the damages.

All members subject to this discussion are very experienced in our industry and most likely previously handled more than one claim for damages. We'd appreciate if you are to mention in your reply any law, regulation, statute, or case law, to provide a proper wording and reference where such could be found so we could all consult and learn from it. To professionally deal with situation hearsay and misleading rumors must be avoided.
 

Michael Ludwig

Well-Known Member
#19
We'd appreciate if you are to mention in your reply any law, regulation, statute, or case law, to provide a proper wording and reference where such could be found so we could all consult and learn from it.
Do you have a link to the Boreas Logistics vs FLS Transportation case to which you refer? I, for one would be interested in its findings, but I'm not about to engage my lawyers to get me a copy. A Google search garners me nothing.
 

MikeJr

Moderator
Staff member
#20
economy:
Post a link to the case and also the findings. I sure as hell can't find it.
Those of us that have taken a law course or two know that every case is full of details, and there are seldom 2 cases the same. Just as you are referencing one case there will be a similar case with few differing details but a very different verdict based on those details.

Members here are pulling the general rule that applies, the driver accepts the load at the time of pickup when signing the BOL and as a matter of being a professional in their industry should be able to determine if a shipment is safely secured in their equipment (most of the time for most shipments). It may not apply 'always' but it sure as hell applies 'almost always'.

Keep well,
Mike
 

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