Please help! Need Advise- Broker won't pay says load was "short"

If you want to believe that regulated or exempt makes no difference then here is a brief explanation or the carmack amendment. The bold is mine to show quantity is covered. Or read the whole amendment(14706(e)(1).

If you understand the difference between regulated and exempt then try PACA.



A prima facie case of carrier liability under the Carmack Amendment is established by proving that the goods were delivered to the carrier in good condition, that they arrived at the place of delivery in damaged condition, and that the amount of damages is measurable. Case W. Reserve Univ. v. Yellow Freight Sys., Inc., 619 N.E.2d 42, 45 (Ohio Ct. App. 1993). The complaining party need only show that when the goods arrived they were damaged, not that the carrier necessarily damaged them. Id. The purpose of showing that goods were in proper condition when given to the carrier and then damaged on delivery is to show an adverse change in their condition while goods were in the carriers custody. Spray-Tek, 426 F. Supp. 2d at 882. To evidence the condition of the goods being shipped, the carrier issues a bill of lading, which is the carriers receipt for the condition and quantity of the goods. 49 U.S.C. 14706(a)(1). Furthermore, to state a valid claim under the Carmack Amendment, there must be a written or electronic communication from a claimant filed with a proper carrier within the time limits specified in the bill of lading, which communication must include adequate facts to identify the shipment; an assertion of the carriers liability for the damage, loss, or delay; and a claim for payment of a specified or determinable amount of money. Lewis v. Atlas Van Lines, Inc., 542 F.3d 403, 408 (3d Cir. 2008). A carrier may require that any claims for damaged goods be brought within nine months. Dan Barclay, Inc. v. Stewart & Stevenson Servs., 761 F. Supp. 194, 205 (D. Mass. 1994); see also 49 U.S.C. 14706(e)(1). The statute of limitations for filing suit is set at a minimum of no less than two years. Id.

 

"Defamation, you would have to prove a future loss of income or denial of service. "

No. In the case of the shipper and broker conspiring to make it look as if the carrier stole/lost items, you would have to prove.... 1)The statement/claim was false, 2)The statement was published or told to any third party (police, insurance, attorney, load-boards, DAC etc..) intentionally, or by accident through negligence. 3) Damages have, or COULD POSSIBLY occur going forward. In the case of Malice, treble all damage estimations.

(obvious that you have never tried this)

LMAO!


"(not true, only the freight on what was hauled)"

What was hauled (and charged for) is what is stated on the shipper's/consignee's BOL, the original full freight bill.


"they still owe the freight bill, minus the freight on the missing product. "If they choose to off-set it" with the claim and you file they will just counter-file.

I think you have some misconception about who the customer is and who the merchant is here, and what those titles mean in the B2B environment- specifically trucking, no disrespect intended. A good book for you on this matter is "Freight Claims in Plain English (2009)", I'll send you mine if you promise to read it, it cost me like $200.00. Simply put, the receiver can do one of two things when a discrepancy is found during the receiving inspection... Reject the load and forgo any rights associated with a claim for REIMBURSEMENT, or alternatively, accept the load as delivered, and file a shipping claim, cargo claim, transportation claim, or loss and damage claim- The phrase used is dictated by the language in the CARRIER'S terms of service.

I could go on and on teaching you about contract and insurance law, and then the IRS's issue with two companies "offsetting" .... But I just humbly request that you Google these words exactly.... "pay the shipment invoice in full, regardless". The results will be the published shipping contract of every major carrier in the country who publish theirs online.... They ALL have those words specifically. For those that don't say it, it is an implied expectation.

"If there is a claim on the load there is no criminal intent. It is a state court issue, not federal as exempt product is not covered by CFR."

If the claim is frivolous, that is fraud. If there was conspiracy to violate fair-dealing laws, that is a federal issue, right along with anything pertaining to inter state commerce. Though in any other business, the jurisdiction would be at the state level... Except this is trucking, where 98% of all legal claims have a "diverse citizenship of the parties".... Which means Federal court is where the SMJ is.

"Bonds only cover non-payment on freight covered by CFR. Regardless of the brokers intentions."

"directly to a shipper or motor carrier any sum or sums which Trustee, in good faith, determines that the Trustor (broker) has failed to pay and would be "held legally liable" by reason of Trustor’s failure to perform faithfully its contracts, agreements, or arrangements for transportation by authorized
motor carriers" (when dealing with carriers generally?.... yep) Surety bonds and surety trusts are, by definition, a surety instrument. They aren't trucking specific, they are money amount specific. And while a surety bond can be underwritten for specific protections (like non payment of carriers), any damage arising from the untimeliness or non-payment is a "legal liability" of the one who caused the damage, and is due by the surety..

freight covered by CFR.

CFR, the Code of Federal Reg's... I'm not arguing such a moot point. "covered by CFR" is such a broad brush. Everything you see, eat, hear and #### is "covered" by the Code of Federal Regulations. The CFR isn't a body of law specific to Trucking. Exempt commodities are only exempt from federal regulation until you put them in the back of a truck that is registered and actively engaged in interstate commerce... When that happens, it doesn't matter if it was raw onions, or lay's onion dip.... The carrier is protected and still has right to carrier lien, refuse delivery, payment on default et...

 

6. Brokering Exempt and Non-Exempt Commodities
When you arrange transportation for loads from shippers, you must be aware of the following rules governing exempt and non-exempt commodities:

1. 49 U.S.C. §13506(a)(6): list of items that are exempt from USDOT regulation
2. 49 CFR §372.115: list of non-exempt items that are similar to exempt cargo or created from exempt cargo
3. Administrative Ruling No. 133: freight not exempt under 49 U.S.C. §13506(a)(6) as stated in 49 CFR §372.115
4. Administrative Ruling No. 107, March 19, 1958

You can always arrange shipments that contain unregulated freight. Shipments that have non-exempt cargo bring you under FMCSA oversight. Keep in mind that specific commodities require specific authorities for both freight brokers and motor carriers. The long and short of it:

1. If a shipment is exempt, then you don’t need authority to broker the load nor does it need to be moved by an authorized carrier; and
2. If the load is non-exempt, then both you and the carrier need the appropriate authority to handle the cargo.

 

1) No one stated even once that you can't broker exempt commodities without a license/bond/authority.

But if you do broker the load of exempt's, and you fail to pay, you are still legally liable for the debt. If you entered the contract in bad faith KNOWING you didn't intend to pay, received the service, didn't pay, that is fraud... With criminal and civil liability. If you, acting as broker didn't pay, the shipper can and will also be party to the debt... If the slightest amount of moral turpitude exists in either of the two parties........ etc. oK ok.. I've already said it. If you are doing b2b transactions (exempt or not, authority or not), you have business insurance, or you are breaking the law. If you are a sole prop with no professional insurance, you also likely have zero corporate shield separating/protecting your personal assets. Either way, I will own you...

2) The conspiring, fraud and defamation issue came from the statement someone made about the parties communicating to take advantage of the inexperienced carrier.

3) If the broker made an agreement/contract for shipping services with a carrier and was paid by the shipper for shipping services acquired through that carrier agreement, then did not pay the carrier... Not only will any instrument titled "surety" be payable, the shipper themselves are also liable for the debt.

4) The Carmack Amendment is a two edged sword. While the liabilities for damage and missing freight are clearly defined, The Carmack Amendment is not a procedural rule, It has a specific process required for a valid claim to be made based on rights provided by the carmack amendment. One of those is that a proper claim be filed, in writing, with the carrier.

But we need to figure something out here.... Either the load was exempt or not. You claim Carmack Amendment protection, but argue that the broker and load are exempt from surety bond protection.... How can that be? The Carmack Amendment does not provide one single iota of protection for Exempt commodity loads... But your 40 year lawyer knows that.




You do know that one of my businesses, (and one of the more successful ones), is collecting unpaid debt from outlaw brokers? I'm just saying, I live this conversation daily.

 

The load was exempt. I posted the link to exempt products. So carmack is out and PACA is in.(should be). But I'm sure the broker agreement has a clause dealing with claims. And when you can understand that a bond does not cover exempt loads then the next recourse is court. I also know from being on both sides of it that an offset is a common(doesn't mean legal)practice and if the parties go to court it usually comes out a wash with both sides paying their own costs. Provided that the claim isn't jacked up and actually exists.

First is to chase down the claim to see if it actually exists. If the product came off the docks, out of a cold storage, or direct from a shed their next inventory will find it and the claim will be reversed. I sure wouldn't expect the shipper or receiver(whoever is claiming)to chase down the carrier so the OP should stay on top of it. 50 cases whether import or domestic is a full pallet(or more),not like it's 2-3 boxes that might never be found.

 

Good Morning Trucker's

I am a small trucking company and i need some advice . Early december i took a load from a new broker he did not have credit and so my factoring company did not want to factor him. but before i took the load i asked the broker if he had quick pay that is the only way ill take the load. anyways i took the load which was a round trip paid $ 5850.00 and the rate con showed that he would pay me within 48 to 72 hours with no fee's taken out. it's now jan 2nd and still no payment. here's the sad thing i filed a claim on his bond and i got a letter yesterday that my claim was denied . Here's why after i did some reasearch i found out after the face that the loads were triple brokered. so this was a ch robinson load which he gave it to carrier then that carrier turned around gave it to the broker i got the loads from which then turned around gave it to me. so insurance claims that ch robinson was the carrier (not the broker) thats why they denied the calim even after i showed them i was the carrier now i am out 5850 and more can anyone help or give me advice

 

Don't get in a rush, and if a factoring company won't cover it don't pull the load.

 

I totally get it and it i just wanted to give the broker a chance figured hey if he pay's within 48-72 hours i would take a chance on him . i guess i was wrong

 

That's a tough lesson learned. Maybe try having them pay half up front in the future if you want to give someone a "chance". How about telling us who the broker was?