E-Conomy Finance Group Ltd v FLS Transportation Services Inc, 2016 CanLII 30099 (ON SCSM)— 2016-02-28
Small Claims Court — Ontario
contractual right of set-off — customer — damages to the patio doors — goods — frames
[…] E-Conomy Finance Group Ltd. and BoreasLogistics Inc. Plaintiffs -and- […] The plaintiff, BoreasLogistics Inc. (“Boreas”), is a common carrier which transports goods. […] FLS entered into a contract with Boreas dated June 19, 2014 pursuant to which FLS agreed to tender loads to Boreas for FLS’s customers (the “Carrier Agreement”). […]
From what I can see our good friend Transaction is doing right thing by fixing the problem where it starts - at the shipper.
Commodities could change, so are carriers or drivers, but!!!
Shipper must know that the problem starts from him and they can not rely on " professionalism" of the drivers, because in most cases they're professional only when they have to be punished.
Ofcourse I agree with the fellows truckers the the driver is taking a full responsibility by signing a BOL and accepting the load.
By eliminating the problem at shipping we are going to save a lot of a headache along the road...
I just read the case judgement ... abso-f**king-lutely brilliant !!!
My takeaways are these:
1) FLS is reaching pretty far with their contract, and
2) Never, ever, ever, ever sign a contract that includes offset rights.
Well.. I don't know about the legal case law blah blah.. but looking at it from the very pragmatic angle of attempting to minimize such occurances from happening in the first place then there's responsibility on all parties. First off.. there's a problem with going from "we have some shit to move asap" to the driver arriving to load only to find that the shit to be moved has wheels and can roll about and cause damage. So.. more details from the shipper should have been ascertained right from the get go.. then the driver would at least know what to expect ahead of time. Were the wheels lockable? Who knows.. probably they were, and likely the driver surmised that locking them up (along with his strap thingy) would be sufficient to prevent the conveyors from moving. He was evidently wrong.. but really.. he likely got no details other than "this stuff needs to go". In my experience 90% of the problems we face are the direct result of cutting corners due bad information or insufficient information.. If the shipper can't or won't detail what exactly he's shipping than don't expect Joe Driver to come along and know how to secure it on a moment's notice.. In hindsight the driver should have refused to move it.. but likely he was under the gun to get going.. and he did the best he could.
I don’t know, I guess I am just old fashioned because when I think of a professional driver arriving at this shipper and seeing the condition of this shipment, I would think he’d say “ hold on a second here fellers, I think I should be calling my dispatch about this”. Yes, it was one of those move it right now shipments, but a seasoned driver would have spotted the potential for damage before they even loaded him and taken the necessary steps.
In this situation there are no winners/losers or who's at fault. The shipper is not in the business of creating a product, putting it in the truck, and hoping to make a profit in insurance money off the damages - he is not selling his wares to the carrier. There was an intended buyer for the conveyors and that buyer was expecting it. The carrier is not in the business to damage freight - he didn't expect a problem or he would have fixed it before it happened. It not what should have happened or if we should fire a driver over this. What happened is something that happens all too often - and the original question was 'Where does the onus lie?'
The product was in the care and control of the carrier when the damage happened. Although we do not see the damage, I'm sure it did not happen while it was being loaded.
If this shipper put it in a container, to be hauled intermodal, the responsibility would have been on the shipper to ensure their freight is worthy of transit.
Back to where lies the onus? In my opinion its 50/50. The carrier should pay 50% of the damages and call it a day. Both the shipper and the carrier should go to the boardroom and come up with a way that this does not happen again - that is the best thing that could come of this discussion.
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.
I had a driver unable to make sure the load was secured due to the shipper loading and then sealing immediately. Driver made a note of it on the bol and then sure enough, once he got to the delivery location the load was all over the place and damaged.