Who Breaks the Seal?
By Henry E. Seaton
October 2008
Reprinted from etrucker.com

Q We are a small warehouse that received delivery of a sealed container. The driver refused to break the seal and insisted that we do it. I know of no requirement that we break the seals on inbound loads, but the driver insisted it. What difference does it make who breaks the seal?

A The statutes and regulations governing shipper load and count are silent with respect to which party at destination breaks the seal. But I suspect I know why the driver insisted that you be the one to examine the seal and actually break it at destination.

The delivery of a shipper load-and-count shipment with seal intact is an important factor in resolving cargo claims for shortages. If the shipment is loaded by the consignor and unloaded by the consignee, and marked as shipper load and count or with words of similar import, then the carrier is not liable for the shortage or for upset in transit unless the claimant can prove negligence. (See 49 U.S.C. 8011.) Use of seals is not mentioned in the statute, but in practice, seals are attached and recorded at point of origin and are primary evidence that the load has not been tampered with in transit.

I have encountered repeated cases in which a carrier’s driver has been told to break the seal and back into the dock, only to then have the actual receiver refuse to sign for the shipment with seal intact. This is probably the reason the “snake-bitten” driver now insists that all consignees physically break the seal, and I see no reason for you not to have obliged him by doing so. The problem with seal integrity and shipper load-and-count issues are becoming significant in view of the increase in the draconian practice of many shippers to trash full truckloads of foodstuff shipments when any evidence of a security breach in transit is present.

One major foodstuffs shipper now has started handing drivers its own “additional bill of lading terms and conditions,” including a term that reads “Containers or equipment with broken, missing or unreadable seals ... at destination ... may be rejected, and carrier will be liable as if there had been a total loss of the shipment.” Under traditional rules of commerce and the Carmack Amendment, the consignee is required to accept broken seal loads and to mitigate damages unless the shipment is “practically worthless.”

While the consignee is free to insist on appropriate testing of the portion of a broken seal load that it fears has become contaminated, a carrier should not be held liable for the destruction of perfectly good boxed, skidded or palletized freight that shows no evidence of contamination or malicious tampering. After all, cargo claims are about cargo “loss or damage” in transit. That is why sophisticated carriers rely on the time-honored uniform or standard bill of lading and make sure their drivers sign nonconforming shipping documents as receipts for goods only.

(703) 573-0700
Copyright© 2006 Law Office of Seaton & Husk, LP. All rights reserved.