Q Our company is a no-touch operation, and we do not experience significant claims problems. On a particular load, a shipper pre-loaded a spotted trailer and upon delivery one pallet was found to have slid off the pallet. It appears the paper was loaded on a broken pallet that caused the lading to slide into the missing slats. Is there a basis for denying the resulting claim and holding the shipper accountable for the defective pallet?
A You have a shipper load and count problem. Section 7-301 provides:
The issuer (the carrier) may, by inserting in the bill the words Shippers weight, load and count or other words of like import indicate that the goods were loaded by the shipper; if such statement be true, the issuer shall not be liable for damage caused by improper loading. But their omission does not imply liability for such damages.
Similar language is found in the Bill of Lading Act, 49 U.S.C. ß80113, Liability for Non-receipt, Misdescription and Improper Loading:
(c) Liability for Improper Loading. A common carrier issuing a bill of lading is not liable for damage caused by improper loading if:
the shipper loads the goods; and
In addition to this statutory language, both the standard truckload bill of lading and a straight uniform bill published by the National Motor Freight Traffic Association expressly recognize as a common law exception from liability the act or default of the shipper or owner.
From the facts you relate, it appears clear that the shipment in question was a de facto shipper load and count situation and that the loading of the shipment onto a broken pallet was an act or default of the shipper for which you, the carrier, have a defense under the statute and the common law.
In addition, there is another common law exception that might apply. Carriers are not responsible for loss or damage caused by the inherent vice of the cargo. Most often, the defense is used where the shipment is latently defective for example, infestation that was not observable at the time of lading.
Yet in this case, it seems possible to argue that the inherent vice defense applies because the pallet was inherently defective and but for the shipper loading the cargo on a weak or defective pallet, the loss would not have occurred.
Although it is clear from the above analysis you have an adequate basis to question and deny a claim, your case would clearly be helped if the words shippers weight, load and count, the notation SLC or words of similar import were placed upon the bill of lading.
that truckload carriers use their service conditions and rules circulars
to place shippers on notice that the carrier will not be responsible
for loading or counting when trailers are spotted at the shippers
location for their loading convenience.