William J. Augello was one of the country’s foremost transportation lawyers and a champion of shippers’ rights. In this column, we attempt to answer readers’ questions as we believe he would.
In the last issue of PARCEL, we discussed the concept of a carrier’s rules tariff and why it is important for a parcel shipper to know what is in the tariffs (or Service Guide or Terms and Conditions) of the carrier he or she uses. This begs the question, ‘What is a parcel carrier?’
The short answer is that from an operational viewpoint, a ‘parcel carrier? is a carrier, or a division of a carrier, that emphasizes the delivery of small packages to virtually every address in the United States and other countries. However, in a legal sense, there really isn’t such a thing as a ‘parcel carrier’ at the present time.
Technically speaking, a ‘parcel carrier’ is either a motor carrier, an air carrier or an air freight forwarder. A ‘parcel carrier’ could also be a carrier that operates both as a ground carrier and also as either an air carrier or an air freight forwarder.
Two frequently asked questions are, ‘What is the time limit for filing a loss & damage claim?’ and ‘What is the time limit for filing an overcharge claim?’ It is of vital importance for a shipper using a parcel carrier to know and understand the implications of ‘which hat the carrier is wearing’ with respect to the traffic tendered to that carrier in order to answer these questions. The reason for this is that different laws and rules will apply depending on which mode the carrier is operating in when transporting your shipment.
For instance, a parcel carrier offering ‘ground service’ is most likely a motor carrier operating pursuant to a license issued by the Federal Motor Carrier Safety Administration (FMCSA). With regard to loss and damage claims, a motor carrier may not limit the claim period to less than nine months from the date of delivery nor the time to commence a suit for loss and damage to less than two years and one day from the time the claim was declined. Similarly, the time limit to file a claim to recover overcharges is 180 days, and the time limit to commence a suit for overcharges or undercharges is 18 months. These time periods are set by federal statutes, i.e., 49 U.S.C. 14706, 49 U.S.C. 13710, and 49 U.S.C. 14705.
However, if one’s carrier is acting as an air carrier or air freight forwarder, these laws have no applicability. Domestic air carriers are free to set their own time limits and conditions. International air shipments are governed by treaties such as the Warsaw Convention.
Parcel shippers accustomed to dealing with ground carriers must also be aware of the fact that the time limit for filing loss & damage claims with air carriers and, especially, air freight forwarders, is usually less than nine months and often much less than nine months. A sampling of airbills shows the period ranging from 120 days for a major air forwarder; a period of 30 days for another major carrier; and a limit of 15 days for a smaller air forwarder.
Oftentimes, the time limit for filing a loss & damage claim will appear on the back of the bill of lading or airbill, but other times the back of an airbill will just say, ‘You must make all claims in writing and notify us of your claim within strict time limits set out in the current Service Guide’ or words to that effect.
In case you haven’t reached for the aspirin bottle yet, let me add that the above discussion assumes that the carriers are operating as they claim to be. One problem that Bill Augello frequently wrote about was that many air freight forwarders are essentially trucking companies operating without the necessary license.
In this day and age of international, multi-modal transportation companies, trying to determine
* what exactly your carrier is in a legal sense
* which of its rules apply, and
* which laws apply is not at all an easy task.
However, the starting point of the analysis is the bill of lading, airbill or other shipping document serving as the ‘contract for carriage’ for a particular shipment.
The analysis then moves to the terms and conditions which are incorporated by the bill of lading or airbill and the laws that govern the category of carrier that issued the bill of lading or airbill. To this must be added the consideration that ultimately carriers are defined by the operations they perform, not how they label themselves. All for now!
Brent Wm. Primus, J.D., currently serves as the General Counsel for the Freight Transportation Consultants Association and is the CEO of transportlawtexts, inc. and Primus Law Office, P.A. Your questions are welcome at brent@primuslawoffice.com.
