CLAIM

[bigt]

Hello everyone,
I have a situation i need help on. We were doing a shipment for One of the US broker. Load did not get loaded on the day it supposed to be and get loaded next day. 400 Miles and we supposed to deliver next day, originally, so we informed the broker that they need to re schedule the delivery appointment since they are the one who supposed to make appointments. They never did, and dispatch waited for them to give us an appointment. Now they claim that we never informed them, that we got loaded next day and ask for re schedule delivery appointment. Product was time sensitive and customer refused to take after certain time. We have paper trail showing driver got loaded almost 22 hours later, next day and they accept that load was loaded next day but are claiming the product. Claim is about $25000 USD. And they are holding about $50000 USD they owe us for moving other freight not related to same shipper.

 

[Shakey]

ouch, do you have contract with them?

Would try your insurance broker first but you might need legal as well on this one.

They certainly can't do what they are doing unless you signed their contract saying they could.

 

[DanielB]

Smells like a TQL load to me.

 

[Freight Broker]

Tell them to pay up.. next call to bond co.

 

[bigt]

ouch, do you have contract with them?

Would try your insurance broker first but you might need legal as well on this one.

They certainly can't do what they are doing unless you signed their contract saying they could.

Will be going over the contract again. This has been dragging for over 6 months now. They don't even reply to emails for 3-4 weeks. Did talk to insurance agent and he said, if we put the claim through, even if they denied, which most likely will happen, insurance companies are raising the rate on renewal. he has seen this happened last year to some one.

 

[Gord M]

Hello everyone,
I have a situation i need help on. We were doing a shipment for One of the US broker. Load did not get loaded on the day it supposed to be and get loaded next day. 400 Miles and we supposed to deliver next day, originally, so we informed the broker that they need to re schedule the delivery appointment since they are the one who supposed to make appointments. They never did, and dispatch waited for them to give us an appointment. Now they claim that we never informed them, that we got loaded next day and ask for re schedule delivery appointment. Product was time sensitive and customer refused to take after certain time. We have paper trail showing driver got loaded almost 22 hours later, next day and they accept that load was loaded next day but are claiming the product. Claim is about $25000 USD. And they are holding about $50000 USD they owe us for moving other freight not related to same shipper.

I had a similar situation with Trinity a few years ago so CYA at all times, COVER YOUR ASS with emails and revised confirmations with these big brokers or you will get swallowed up in their bullshit after the fact. Gord

 

[bigt]

Tell them to pay up.. next call to bond co.

I had a similar situation with Trinity a few years ago so CYA at all times, COVER YOUR ASS with emails and revised confirmations with these big brokers or you will get swallowed up in their bullshit after the fact. Gord

That's what they are doing. Lesson learned.

 

[Michael Ludwig]

I hope that wasn't the only lesson learned !!!
It sounds like you have contracted away all of the rights granted you by the bill of lading, Truck Transportation Act, and Carmack legislation.
Next time you think you have to sign a contract like that, go to this website ...

Lotteries | OLG

OLG Lotteries

lottery.olg.ca

You'll likely do better in the end.

 

[Jim L]

If you signed a contract with a US Broker with verbiage such as 'HOLD HARMLESS', EXLUSION OF LIABILITY', you will likely need to pay quite a bit of money to a US lawyer to see if you can mitigate the claim. The lawyer will have to get to the bottom of situation, right to the person who charged the money (ie receiver) and follow the money. If a failure such as this is in the contract with the US broker and the US Broker is liable for it, then a contract between you and the US broker with a 'HOLD HARMLESS' agreement will just filter down to you and contractually you are on the hook. The problem with this scenario is that the broker has no care in the world because absolutely everything gets contractually passed to the carrier. If you didn't get loaded and you told the broker, but the broker didn't tell the freight payor, then you are on the hook if the broker gets charged.

Currently there is so much carrier competition in the marketplace that most carriers don't understand or even read the contract. Their truck is waiting and every moment counts so sign the darn thing and get him moving but this is the result.

Unfortunately your only option is to get more information from the broker. Have the broker prove that there was a bill from the receiver and that there is proof that the bill was paid. If that doesn't get them moving then get a lawyer involved to fight for your outstanding funds and have the broker prove that there was a claim from the receiver to the broker and that you are contractually obligated to pay that or not. Hopefully it will not cost you more than 25K US but I doubt it.

For more information please see:

‘Extreme’ language emerging in trucking contracts

TORONTO, Ont. – Contracts define responsibilities in any business relationship. But Rui Fernandes is seeing a growing number of documents using “extreme” language that favors shippers. “They’re trying to transfer all liability to the other side, whether it’s the carrier… Continue reading...

insidetransport.com

 

[Gord M]

When you get a broker contract from a big broker, go through it and white out anything you don't agree with and 9/10 times they will never notice. As long as you are not using white out on page #1 LOL no one actually reads the contract especially if it's a 1 of load.

 

[Michael Ludwig]

When you get a broker contract from a big broker, go through it and white out anything you don't agree with and 9/10 times they will never notice. As long as you are not using white out on page #1 LOL no one actually reads the contract especially if it's a 1 of load.

That's poor advice. Unless changes are struck out with a single line and initialed by the initials of both signatories, you'll be deemed as having accepted those "whited out" parts.
Generally speaking courts lean in favour of the party that did not create the contract. However, by committing such an act you will have disposed of any favour the court would given in your favour.

Gord is mostly correct in the assumption that no one reads the contract, even the creator of the contract, especially if it's a one off load ... UNTIL THERE'S A CLAIM ... then everyone reads it, looking for their "get out of jail free" card.

 

[bigt]

That's poor advice. Unless changes are struck out with a single line and initialed by the initials of both signatories, you'll be deemed as having accepted those "whited out" parts.
Generally speaking courts lean in favour of the party that did not create the contract. However, by committing such an act you will have disposed of any favour the court would given in your favour.

Gord is mostly correct in the assumption that no one reads the contract, even the creator of the contract, especially if it's a one off load ... UNTIL THERE'S A CLAIM ... then everyone reads it, looking for their "get out of jail free" card.

But actually, i do read the contracts before i sign and do make changes and let the broker know if it was acceptable to them, then move forward. This contract was sign by some one else in the office and long time ago, about 7 years ago.

 

[Jim L]

It took me a few years to learn the hard way. I save each contract for further reference. There are times where we have not used a broker for years and then they pop up. Review your old one or ask for a new contract. It never hurts to review.

 

[lowmiler88]

It took me a few years to learn the hard way. I save each contract for further reference. There are times where we have not used a broker for years and then they pop up. Review your old one or ask for a new contract. It never hurts to review.

We always change the auto renewal to a hard date for that specific reason.

 

[Trucking18]

TQL did the same thing to Us , Delivered with a clean POD . 50 days later while following up on payment we are advised there is a claim and they arnt paying. Scammers

 

[Michael Ludwig]

TQL did the same thing to Us , Delivered with a clean POD . 50 days later while following up on payment we are advised there is a claim and they arnt paying. Scammers

They have 9 months from the date of delivery to file a claim. However, unless they follow the rules specifically laid out in either Carmack or the Bill of Lading Act, whichever applies, exactly, you are under no obligation to pay. Furthermore, it is illegal to contra someone's account. Cargo claims are a separate transaction from the act of transportation. Conduct yourselves accordingly.

Note: Please don't ask what the rules are. That's Transportation 101, and it is your obligation to know what they are before you get into the game.

 

[loaders]

Carriers and brokers alike, must have proper claims handling procedures in place. This idea that "I will never have a claim so I really don't need to educate myself" is foolhardy and can be costly. Claims are as much a part of our industry as flat tires. Inconvenient, sometimes time consuming and usually with a hefty price tag attached. There are numerous sources of information available pertaining to freight claims in both the US and Canada. Another foolish approach, is to assume that all freight claims are some sort of insidious conspiracy on the part of the shipper/receiver to defraud the carrier and therefore must be automatically dismissed from the start. Very rarely is this the case. Not to say that the shipper/receiver maybe as uneducated (or more so) than the carrier regarding proper procedure, very often they are. Being properly prepared and informed before a claim happens will reduce your time spent and the inconvenience involved in getting it settled.

 

[Michael Ludwig]

Well said loaders ... very well said

 

[AccountsReceivable@DRC]

There is a growing trend the past few years with 'electronic contracts'. You receive a portal link from the broker and you can do is go thru each page and 'approve it'. You cannot print off the contract and make necessary adjustments and/or cross out certain areas of the document.

In reviewing many contracts - the fine print is just getting smaller in my opinion. I completely disagree with signing off on contracts of this nature. The broker protects themselves and as noted above by many members - the carrier is left on the hook for everything. Just because they 'signed'. Cargo claims is a big one and not being able to make contract amendments can leave you on the hook for thousands of dollars.

The carrier has the option of not signing the contract and refusing to deal with that particular broker. Sure, you have that choice. You might also be giving up $300K in revenue as well taking that stance. So what can you do? Roll the dice I guess and hope nothing goes sideways with the contractual 'obligation' you did not fully agree to in writing.

 

[Michael Ludwig]

There is a growing trend the past few years with 'electronic contracts'. You receive a portal link from the broker and you can do is go thru each page and 'approve it'. You cannot print off the contract and make necessary adjustments and/or cross out certain areas of the document.

In reviewing many contracts - the fine print is just getting smaller in my opinion. I completely disagree with signing off on contracts of this nature. The broker protects themselves and as noted above by many members - the carrier is left on the hook for everything. Just because they 'signed'. Cargo claims is a big one and not being able to make contract amendments can leave you on the hook for thousands of dollars.

The carrier has the option of not signing the contract and refusing to deal with that particular broker. Sure, you have that choice. You might also be giving up $300K in revenue as well taking that stance. So what can you do? Roll the dice I guess and hope nothing goes sideways with the contractual 'obligation' you did not fully agree to in writing.

You're absolutely correct. In these cases there are two points that lean in the carrier's favour. The first being that a case can be made for the broker trying to contract outside the law. That may, or may not, work, depending on how and where litigation takes place.
The second being that the courts, especially in cases where the contractee(?) has no option or ability to negotiate the contract, leans very heavily in favour of the contractee.
In many cases these same contracts will also try and rule out the use of the courts and try to contract carriers into arbitration instead. Typically when courts see this type of language in a contract they are quite willing to throw out the entire contract and throw the book at the person writing the contract.
The downside is that it takes considerable time and money to fight these things. A more appropriate method of mitigating them is to take advantage of quick pay options, or if you can negotiate payment terms, get them down to something like 7 days and keep your paperflow moving as quickly as possible. That way, the broker never amasses a great amount of your money. If you have to walk away, you won't be hurt too bad. Just remember to keep the quick pay charge in mind when setting/negotiating rates.