When a semi-tractor trailer overturns due to shifting cargo and the driver or a third party is subsequently injured, whose duty is it to ensure that the load was properly loaded and secured-the shipper or the carrier?
49 C.F.R. §392.9 (2002) of the Federal Motor Carrier Safety Regulations provides for regular inspection of the cargo by the driver when operating a commercial motor vehicle. Drivers of trucks must assure themselves that the cargo is properly distributed and adequately secured and inspect the cargo and ensure that it is secured within the first 50 miles of a trip and reexamine it during the course of its transportation, making adjustments whenever the driver changes duty status or every 3 hours or whenever the truck has been driven 150 miles, whichever comes first.
However, the final paragraph of §392.9 states:
The rules in this paragraph (b) (see above) do not apply to the driver of a sealed commercial motor vehicle who has been ordered not to open it to inspect its cargo or to the driver of a commercial motor vehicle that has been loaded in a manner that makes inspection of its cargo impracticable. 49 C.F.R. §392.9(b)(4) (2002).
The question remains what occurs when the load is sealed or the driver is not allowed to perform an adequate inspection of the load?
The case entitled United States v. Savage Truck Line, 209 F.2d 442 (4th Cir. 1953), is a watershed case in this area of the law, and is cited in numerous decisions nationwide. Savage was a common carrier under contract to transport six airplane engines in cylindrical containers from
Norfolk,
Virginia to
Rhode Island. A collision occurred between Savage's truck and another semi in
Virginia after at least one of the cylinders shifted to the left, causing the vehicle to cross over the center line and enter into another lane. One of the cylinders fell off of the truck and killed the driver of the other semi instantly.
The Fourth Circuit held that the primary duty as to the safe loading of property is upon the carrier. The general rule is that when the shipper assumes the responsibility of loading, he becomes liable for defects that are latent and concealed and cannot be discovered by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper. Savage, 209 F.2d at 445.
The Seventh Circuit followed Savage's reasoning in Armour Research Foundation v.
Chicago, Rock Island and Pacific Railroad Co., 297 F.2d 176 (7th Cir. 1961). U.S. Navy crews had loaded certain vehicles on a flat car containing valuable electronic equipment without securing the equipment, so that when it was transported, the equipment shifted and became damaged. The case was remanded because the plaintiff failed to meet its burden of proof on two essential elements of its claim; one of the elements being whether a defect in the loading of the equipment was latent or concealed to the carrier.
A subsequent
Illinois case also cited Savage for the proposition that the carrier is still liable for the loss or injury to goods resulting from loading defects on the part of the shipper which are discoverable upon ordinary inspection by the carrier. People ex rel. v. Medlin, et al, No.93 C 4190, 1994 U.S. Dist LEXIS 18748 (N.D. Ill. Dec. 27, 1994). However, in that case, the shipper loaded forklifts onto a flatbed trailer and the carrier chained the forklifts down with his own equipment. The driver believed that the load might exceed the height restriction, but did not measure the load. Subsequently, one of the forklifts impacted an overpass along the route. In this case, the forklifts were loaded onto an open trailer and the height was never concealed, so there was no question that the carrier bore all fault for the subsequent damages.
In 2007, the Ohio Court of Appeals dealt with a rollover incident. In Brashear v. Liebert Corp., No. 06 AP 252, 2007
Ohio 296 (2007
Ohio App. LEXIS 260), the truck driver picked up his load in
Ohio on the day after Thanksgiving when no one was there but a security guard. The driver hooked up his trailer and it rolled when he was negotiating a ramp not far from the pick up site. The driver died at the scene, so it is unknown whether or not he inspected the load.
A police officer testified that the load was not sealed when he inspected it after the accident, and that there was nothing about the way the cargo was loaded that would have prevented the driver from inspecting it. Some courts have held that what is patent or latent depends, in part, on the experience of the observer. However, in this case, it was undisputed that there was enough room for the driver to have walked the entire length of the trailer on both sides to determine whether and how the load was secured. Because the evidence was insufficient to demonstrate the existence of a latent and concealed defect, the court upheld the directed verdict entered by the trial court.
In January, 2008, the U.S. District Court in
Michigan, Southern Division also had the opportunity to consider the reasoning in Savage in Johnston v. S.D. Warren Co., et al, No. 06-11617, 2008
U.S. Dist. LEXIS 3888 (So.
Div.
Mich. Jan. 18, 2008). Johnston, who had no formal training as a truck driver, picked up paper rolls at a manufacturer in
Muskegon,
Michigan.
Johnston went to the driver's lounge while one of defendant's employees loaded the trailer. An employee testified that he always used friction matting under the rolls to secure them.
Johnston was then given an opportunity to inspect the trailer. He only determined whether the correct number of rolls were loaded and did not enter the trailer. Shortly after leaving the mill, while driving at a normal speed his truck rolled and
Johnston sustained injury.
The court determined that the defendant in this case took it upon itself to load
Johnston's truck so as to preclude
Johnston from witnessing how the loading was accomplished. Even if
Johnston had conducted a reasonable inspection, it did not appear he would have been able to detect the presence of friction matting. Because defendant may have been liable for latent defects in the loading of
Johnston's truck, the court allowed the Federal Motor Carrier Safety Regulations to be introduced into evidence at trial, denying defendant's motion in limine to exclude them.
Similarly, in Franklin Stainless Corp. v. Marlo Transport Corp., 748 F.2d 865 (4th Cir. 1984), the issue was whether shipper's improper loading was obvious.
Franklin called Marlo to furnish transport of steel coils from
New York to
Tennessee.
Franklin strapped each coil on a wooden pallet. The truck driver told
Franklin that he had never hauled steel coils and asked whether the load was secure.
Franklin told driver that this was the standard loading method and that there would be "no trouble" with the load.
After the truck was involved in a collision with another vehicle and the injured parties received a judgment against
Franklin, determining that the cargo was improperly loaded,
Franklin filed an indemnity action. The district court acknowledged that
Franklin was negligent in loading the coils on the truck, but found that the loading defect was open and obvious. However, the Fourth Circuit determined that although the coils were open and obvious to the driver, the defect in the manner of loading was not open and obvious. In addition to
Franklin's assurances that the load was proper,
Franklin's traffic manager testified that this was the normal way they loaded the coils and that the cargo was perfectly loaded in this case, with no observable danger. The trucker was not aware of any loading defect here either. Therefore, no indemnity was allowed for
Franklin.
The Supreme Court of Maine decided a case in 2000 involving paper pulp bales which had been loaded on a trailer. Decker v. New England Public Warehouse, Inc., et al, 749 A.2d 762 (
Me. 2000). In this case, Decker picked up a trailer loaded with paper pulp bales to drive within the State of
Maine for delivery. This was Decker's second load of the day at that facility, involving the same cargo. On the first delivery, he requested a specific configuration of the pulp bales, but on the second delivery, he did not do so. He inspected the second load by looking inside the trailer from ground level. He did not step into the trailer at that time, because "the load looked like it was safe." The supreme court held that Savage applied and determined that Decker had the responsibility to determine whether his cargo was properly loaded. "Decker's failure to carefully check his second load to confirm that it was exactly the same as his first load, and not just that it "looked the same," resulted in the failure to detect an otherwise patent defect." Decker, 749 A.2d at 768. Therefore, the summary judgment entered by the lower court was affirmed.
Based upon all of the decisions cited above, each case will be very fact-intensive. It is important to obtain detailed information related to the time of day that the cargo was loaded, whether the carrier's driver was allowed to inspect the load and how it was secured, how long the inspection lasted, any conversation between the driver and employees of the shipper, and any other details that can be fleshed out surrounding the loading itself. These detailed facts will determine whether the case survives a summary judgment motion at the outset.
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