4/16/2007
Colin Barrett
President of Barrett Transportation Consultants

Q:

We're a freight forwarder, and I think I have a question I haven't seen in your column before.

I have a shipper who ships a variety of different vendors' products. The loads are virtually impossible to count as each pallet may contain up to five vendors, each with a variety of different items. This shipper is the warehouseman, not the vendor of these products.

I have an incident where a load was sealed, and when it got to the destination there were cases missing.

Now it's clear that if the load is sealed and the seal is intact, the shortage occurred at either the shipping point or the destination point.

But the shipper is contending the shortage is our responsibility because they have a disclaimer on their bills of lading stating: "(name of shipper) is a shipper load, driver count facility. No signature indicating shipper load and count, 'SL&C,' will be accepted. Seals are considered 'tamper proof' only and are not to be construed as 'SL&C.'"

Are they correct?

A:

Sure they are. Indeed, in your shoes I'd embrace their statement like a long-lost friend, especially the portion where they call the seals "tamper proof."

Oh, were you asking whether they're correct that they can't be held liable for the shortage? Of course not.

The old Bills of Lading (Pomerene) Act made the point a lot more explicitly, but even the new one - 49 U.S.C. § 8000 et seq. - will suffice: a notation of "shipper's load & count," whether or not imprinted on the B/L, is effective only to the degree supported by the facts.

Which is to say, did the shipper in fact load and count the freight or did it not? If so, it's an "SL&C" shipment whether or not so annotated; if not, it's not, again irrespective of the notation.

In this case the shipper - warehouse - admits it did the loading. Realistically it's impossible for a driver to make an accurate count in the circumstances you describe, so it must have done the counting as well. That's the fact, Jack, never mind that silly disclaimer.

You say the load was sealed. Well, may one rely on the seal record? Now is where that disclaimer comes into play; the warehouse acknowledges therein that they're "tamper proof," and let's hold it to that admission.

So when and where did the undelivered cases go AWOL? That's still undetermined, but the evidence, as conceded by the warehouse, says it wasn't while they were in the carrier's custody.

As you say, the shortage must have occurred either at the origin or after delivery to the destination. Your intact seal record, already conceded by the warehouse to be dispositive, says that's so.

Which means you can simply walk away from this and leave the consignor (warehouse) and the consignee to sort it out between them. Maybe the warehouse miscounted and loaded short; maybe the consignee miscounted and says it received less than it really did. What do you care which? All that's certain is that neither you nor the carrier you engaged (as a forwarder) to handle the load is responsible.

Actually, in this case my money's on the warehouse/shipper. Given what you say about the shipping circumstances, it strikes me a lot more likely that the warehouse blew it and short-loaded.

That, however, is not my problem. Nor is it yours. An old joke describes a fight-minded new bride who, upon finding her husband in mortal combat with an invading bear in the midst of their campground honeymoon, immediately climbs a tree. From that elevated vantage she orally provides her rooting interest: "Go, husband! Go, bear!"

In the husband's position I think I'd be visiting a divorce lawyer pretty promptly (providing, of course, I survived), but you have no such relationship with either party. So give them both encouragement and enjoy the fight from the sidelines.

My purpose in publishing your question is not at all to take sides in the dispute in which you're involved, but rather to comment pointedly on the significance of those "SL&C" notations that either appear or don't appear on B/Ls based frequently on shipper policies such as what you describe.

If the notation reflects a fact - the shipper really did load and count the freight - it's of consequence. If it doesn't, it isn't. And its absence on the B/L is likewise of at best secondary importance.

What counts, as a matter of law, is what actually took place. The presence or absence of the "SL&C" notation, at most, imposes a burden of proof on one party or another as to what really happened.

But I won't - and neither will any rational court - go further than that in seeking to resolve the truth of events. The presence or absence of the notation is only one aspect of that; if any party can credibly challenge either, the fact prevails over the paperwork.

As you describe things, you (and your underlying carrier) are in the clear. I'd suggest you rely on the facts to exonerate you and climb up in that tree to root them on.

For those of you who are always sure - Try to count the black dots on the square below...