Tuesday, March 25, 2014

Lack of Due Diligence Leads to Six-Figure Loss -- Popcorn by The Colonel # 89

Dear Colonel:

We’ve been doing business for the past several months with an entity that represented itself to us as a “freight forwarder.”

This company has handled quite a few loads for us without a problem. It properly issued us bills of lading in its own name and used various underlying motor carriers to provide the actual transportation.

We never troubled to identify or check out these motor carriers, figuring that was the forwarder’s problem. To us, the only carrier that mattered was the forwarder, which was, of course, acting as shipper to the motor carriers.

Well, our good run with this forwarder came to an abrupt end. A motor carrier handling one of our loads had a bad accident and the ensuing fire destroyed the rig and our shipment.

We naturally filed claim against the forwarder based on the bill of lading. At that point a lawyer representing the company came back to us with the upsetting claim that it wasn't really a forwarder at all, but rather a broker.

The lawyer gave us all kinds of “proof” of this. He gave us a copy of the company's brochure, which represents it as a “3PL” and uses the term “forwarder” in only a secondary sense. 

He showed the company’s copy of the bill of lading, which has its name crossed out and the motor carrier’s name substituted (our own copy has no cross-out and doesn’t name the motor carrier).

The lawyer said the company is registered with the Federal Motor Carrier Safety Administration as a broker, not a forwarder.

He also pointed out that under the law, forwarders supply assembly-and-consolidation and break bulk-and-distribution services, and noted that the company’s brochure offers neither.

On this basis, the lawyer said our claim should be filed against the motor carrier. We don't know anything at all about this carrier, and initial research says it can’t pay the claim, which is well into six figures.

I might also mention that we have some e-mail correspondence from this company in which it clearly tells us it’s a forwarder. Is this any help? Is there anything we can do?

Very truly yours,


Dear Euchred:

If you think the “forwarder” is (or may be) good for the claim, we’d suggest you sue it. If you know it isn't good for the claim, don't.

The financial responsibility of the broker may depend on whether the "forwarder" has applicable insurance, which may itself be a tricky question.

Since one can't insure against one's own intentional wrongdoing, the "forwarder" may have insurance that will not cover any part of your claim based on the broker's intentional misconduct.

You may be able to frame your claim to fit within the coverage, if any, but the first step is to find out whether there's a pot of gold at the end of the rainbow, an expression we were hoping to find an excuse to use before the end of March.

We have overcome the temptation not to add the obvious: in the future, do due diligence in vetting your forwarders before you entrust them with shipments of high value.

Very truly yours,

Col. T. H. Clapping

(Note to readers: "Do due" is a phrase we hoped to slip by Karen Swartz's vigilant censorship. If you are reading these words, she's asleep at the switch, so feel free to use uninhibited language in your comments.)

☢ P.S.: Today is the feast of the Annunciation, when the angel Gabriel, the same one who earlier appeared to the Aaronic priest Zechariah, husband of Elizabeth, to announce the conception of John the Baptizer, appeared to Elizabeth’s kinswoman, Mary the betrothed of Joseph, and hailed her by the title (or description) translated variously as “highly favored one” or "full of grace."

Gabriel told Mary first of all not to be afraid. He told her she would conceive and bear a son whom she should call "Jesus," who would be great and be called the son of the Most High, and to whom the Lord God would give the throne of Jesus' ancestor David, and whose kingdom would never end.

In the light of advances in science since the days when the gospel of Luke was written, we humbly suggest that an apter name for the day would be “The Feast of the Incarnation,” and that the Nativity (Dec. 25) and the Adoration of the Magi (trad. Jan. 6) are further manifestations of the great turn of history commemorated on March 25 each year.

On a crasser note, you have only nine months to get your Christmas shopping done.

1 comment:

KS said...

when duty calls, I will only B-more vigilant in watching Doo Dew Kidz videos than in censoring Colonel's kernels. ~ Fais do-do 21206