Dock to Dock: Shifting in transit

The Problem

Disputes about responsibility for shifting in transit.

The Key Point

Carriers that arrive with shifted loads can expect claims.  

The Solution

Due diligence at the loading dock.

Q: We are a truck broker that prides ourselves in valuing our customer and carrier relationships. When shipments arrive with shifted cargo, we sometimes find ourselves stuck in the middle with the shipper blaming the carrier and the carrier blaming the shipper. How does Blue Book assess these claims?

A: When cargo is received by the carrier in good condition at shipping point, but arrives at destination in a damaged condition, the burden of proof shifts to the carrier to prove both “freedom from negligence” and shipper error or one of the other recognized defenses (act of God, act of public enemy, act of public authority, or inherent vice of the goods). 

If this sounds familiar, it’s because this is the liability scheme put forth in the Supreme Court case of Missouri Pacific Railroad Company v. Elmore & Stahl, 337 U.S. 134 (1964).

The court explained that “though not an absolute insurer” of the cargo, a carrier is liable for damage when it cannot show freedom from negligence and that the damage at destination was caused by one of these five common law defenses.

It’s fair to say carriers tend to view themselves as in the transportation business and not in the almost-insurance business.

The suggestion that carriers are not quite an insurer against cargo damage isn’t particularly comforting from a carrier’s point of view. It’s fair to say carriers tend to view themselves as in the transportation business and not in the almost-insurance business.

Nonetheless, this is what carriers are up against when cargo is damaged upon arrival at destination.  Typically, where shifting is concerned, it’s difficult for the carrier to establish either of the required elements, let alone both.  

For example, even if the carrier can somehow establish the shipper erred (using pallets that were inadequate, using old or wet boxes, or failing in some other way to comply with industry standards or its own loading protocols), it would still need to establish freedom from negligence by showing there were no hard stops, no erratic driving, and no rough patches of road or other contributing factors (e.g., inadequate trailer suspension) experienced in transit.

Consequently, a shifting claim in particular can be difficult for carriers to defend against. But carriers can reduce their risk by ensuring driving and equipment are top notch, and by performing their due diligence at shipping point.

If the carrier is not comfortable with the loading method or the pallets used, this should be resolved before signing for the cargo and pulling away from the dock.  

Additionally, truck brokers can help reduce shifting claims by communicating with shippers when they notice a disproportionate number of shifting claims coming from a particular shipping dock.

While cargo claims are typically assessed in isolation, truck brokers are uniquely positioned to recognize patterns and support their carriers by addressing issues proactively.