CMV Law: Cargo And Pertinent Case Law

Pertinent Case Law

The courts recognize a distinction between a claim of a shipper against a motor carrier when cargo is damaged, as opposed to a claim by a member of the traveling public injured by an improperly secured load. This distinction was illustrated in the case of Syngenta Crop Production, Inc. v. Doyle Brant, Inc., which involved a spill of a load of Diazinon pesticide and a claim by the manufacturer against the motor carrier and its driver. Quoting United States v. Savage Truck Line, Inc., the Syngenta court noted the majority rule that allocates responsibility between a shipper and motor carrier as follows:

When the shipper assumes the responsibility of loading, the general rule is that he becomes liable for defects which are latent and concealed and cannot be discerned by ordinary observation by the agent of the carrier, but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.

The court went on to note:
[T]he Savage rule is applicable only to those claims between the shipper and the carrier for damage related to improper loading and not to claims by third parties to the shipping relationship…[the Savage rule] would be markedly different in a case involving a party outside of the trucking industry. Pedestrians and non-commercial motorists, to name two possible third parties, injured in an accident caused by a shipper’s negligent loading of cargo would still be able to sue that shipper for compensation despite the Savage rule. Shippers could not rely on Savage to bar claims from those not involved in the industry and who had no opportunity to remedy any negligence.

Thus, the courts have recognized a slightly different duty relationship between a shipper-carrier and that created when a member of the public is involved. The Savage rule has been applied to the claims of a CMV driver, injured as a consequence of improperly loaded or secured cargo.

Fortner v. Tecchio Trucking, Inc.

There appear to be conflicting decisions on the question whether a shipper may obtain indemnity or contribution from a motor carrier when a load shifts and an accident is caused. However, when a pedestrian or other motorist is injured due to problems with the loading or securement of freight, the courts recognize a cause of action against shipper and carrier, with the caveat that the existence of regulation places a more defined duty upon the motor carrier. For example, in Fortner v. Tecchio Trucking, Inc., 597 F.Supp.2d 755 (E.D. Tenn. 2009), the court granted summary judgment for the plaintiff, finding as a matter of law liability against the motor carrier for improper securement of the load. Plaintiff showed the existence of the regulation, the fact that he was one of the class intended to be protected by the regulation and the admitted failure of the motor carrier, acting through its driver, to properly secure the load.
However, the fact that regulation speaks to the motor carrier’s duty to properly load and secure cargo does not mean that the shipper who negligently loaded the truck may escape liability. In Medeiros v. Whitcraft, the shipper argued CMV driver bore the duty under regulation, and thus that it could not be held liable. The court rejected this argument in the face of evidence the shipper was negligent in securing the load:

While certainly imposing a duty upon the driver, this regulation does not, by its terms, necessarily relieve other parties of potential liability. The defendants assert that [shipper] may be still bound by a duty arising out of common law and /or contractual relationships… The negligence of one tortfeasor may be established by proof of a breach of safety regulations, such as… regulation… while the negligence of another may be established by the proof of a breach of the common law duty of ordinary care… the [FMCSRs] impose a clear statutory duty on the carrier to secure the load safely, but they do not relieve those who breach a common law duty of care from liability  for their negligence and their comparative share of the resulting damage.

Hensley v. National Freight Transportation, Inc.

This holding is echoed by the North Carolina Court of Appeals in Hensley v. National Freight Transportation, Inc. There, the trial court granted summary judgment for the shipper, who allegedly was negligent in loading rolls of steel wire.  The appellate court noted the federal regulations at regulation place “the primary duty as to the safe loading of property” on the motor carrier. Hensley at 564. However, even though the CMV driver was involved in the loading process, even having certain items reloaded and shifted, the court found “some evidence” that the shipper “maintained responsibility as to how the truck should be loaded,” so that a material fact remained as to who was at fault.
The Hensley court also noted the shipper’s argument that any problem with loading was patent, and that the motor carrier was liable for patent defects. Without engaging in the Savage analysis, or finding that analysis only applies to claims between the shipper and the motor carrier and its driver, the court simply found this to be a jury question. This is the right result, although a fuller analysis would have followed the logic of Medeiros and found that the negligence of one defendant does not alleviate another for its negligence.
Finally, at least one court has held that a driver has no duty to inspect freight in a sealed container, which is what the regulation says (except when, arguably, the driver has a key).  In Trucker’s Exch., Inc. v. Border City Foods, Inc., this holding arose from a fact pattern that actually involved a dispute between a shipper and motor carrier, which the driver had no part of.  However, the reasoning, and the plain language of the regulation would seem to apply with equal force to a personal injury claim by a third party motorist.

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