by William J. Augello, Esq.
This article was authored by my partner Bill Augello in 2005.1 Bill practiced transportation and administrative law for 52 years. After "retiring" from the firm of Augello, Pezold and Hirschmann of Huntington, New York (now Pezold, Smith Hirschmann and Selvaggio), he continued to consult with and present expert testimony for the transportation industry and members of the bar from his office in Tucson, Arizona. Bill remained active until his final days. At the time of his passing he was an Adjunct Professor at the James E. Rogers College of Law at the University of Arizona. The article is still pertinent today.
Gerard F Smith
Pezold, Smith, Hirschmann & Selvaggio LLC
In the course of researching for my next publication, I discovered cases where carriers and their injured drivers raised "shippers load and count," either as a defense to damaged loads or to personal injury to the driver while unloading a shipment. These cases raise questions as to whether "SL&C" notations are proper based on the facts and the legal effect of such notations.
One court defined SL&C as follows: "The legend 'SL&C' refers to 'shipper's load and count' and indicates the shipper, but not the carrier, attests to the accuracy of the quantity of goods loaded on board the carrier's vehicle." In the personal injury case, the driver sought damages for injuries suffered when he was struck by boxes that fell out when he opened the trailer doors at destination. The driver contended that the notation "SL&C" on the bill of lading relieved him of any duty to observe the loading of his trailer.
The facts are that the driver was present while the shipper loaded the load with a forklift, but he was sitting in his truck "doing paperwork" and "perhaps napping, during the loading process." When the trailer was fully loaded, the driver visually examined the rear end of the load from the ground and then climbed into the trailer to check the load bars that the shipper had installed. He then sealed the load and delivered it intact to destination.
The court ruled that under 49 C.F.R. 393.9, the driver had a duty to exercise reasonable care for his own safety in conformity with "common sense federal regulations requiring that before starting on his journey he 'assured himself…that the…commercial motor vehicle's cargo is properly distributed and adequately secured.'"
It held that the "SL&C" notation did not excuse the driver from the duty to exercise reasonable care for his own safety. His own failure to examine the load bars sufficiently to confirm that they were adequately secure, coupled with his act of standing within the zone of danger while opening the doors, was held to constitute "contributory negligence," and therefore, the shipper was held not to be liable for his injuries. Hardesty v. American Seating Co., 194 F. Supp. 2d 447 (D. Md. 2002).
The same type of defense is raised by motor carriers when damage is discovered in a load at destination shipped under a "SL&C" notation. The problem is that carriers treat this notation as an absolute defense to anything that happens in transit, and for any type of claim, without investigating what actually happened in transit.
For shortages at destination, it is understandable why a carrier should feel that it is not liable since it was not present when the load was counted and loaded. Shippers should understand that they generally cannot hold carriers liable for shortages when they loaded a vehicle without giving the driver an opportunity to count and the trailer is delivered with an intact seal.
For damage claims, however, the question is who and what caused the damage. The mere fact that the shipper loaded the goods does not necessarily relieve the carrier of liability for damage discovered at destination. The question is "What happened in transit to the cause this damage?" If the shipper sustains its burden of proving that the goods were in good condition at origin and damaged at destination, the burden shifts to the carrier to prove, not merely allege, that it was caused by one of the five bill of lading exceptions and that it was not negligent. The fact that the shipper loaded the goods is not proof that the carrier was not negligent. The truck might have been in an accident in transit that resulted in the damage to the goods or the truck may have been defective, etc.
Another question is "Was this a valid 'SL&C' shipment?" The only true SL&C shipment is one for which both parties agree to handle the shipment without the driver being present or without being responsible for inspecting or counting the load. In many instances, the driver is present in the shipper's facility at the time of loading, but not paying attention to the loading process. He then writes "SL&C" on his copy of the bill of lading after leaving. In these instances, the notation is improper and therefore, unenforceable.
Furthermore, no agreement between the shipper and the carrier can relieve the driver of the regulatory obligation under 49 C.F.R. 393.9 to inspect the load before leaving the shipper's premises. The only exception is when the driver has been given a sealed load with instructions not to break the seal! It follows, therefore, that drivers must inspect every load before leaving origin and inspect for patent defects unless the shipper instructs them not to break the seal.
It is becoming increasingly important for shippers, receivers and carriers to understand the legal consequences of bill of lading notations in the current litigious society. Parties to transportation arrangements would be well advised to reexamine their practices and contractual arrangements in light of these lessons.
 TRANSDIGEST - Volume X, Issue No. 83, January 2005
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