The challenge of declared value shipments in the transportation industry

WHERE TO START WITH DECLARED VALUE SHIPMENTS

In the provincially regulated world of Motor Truck Cargo in Canada, in order for a carrier to limit its liability exposure, it is advisable to mention the limitation of carrier’s liability, conspicuously, on the face of the bill of lading (BOL), with a space to declare the value of the shipment. This also forms part of the relevant provincial regulations that clearly define the prescribed form of BOL.

Section 10 of the O. Reg. 643/05 – Carriage of Goods under Highway Traffic Act R.S.O. 1990, c. H.8 states:

 If the consignor has declared a value of the goods on the face of the contract of carriage, the amount of any loss or damage for which the carrier is liable shall not exceed the declared value.

It is pertinent to note here that the value of goods must be declared on the face of the contract of carriage (more than a BOL).

THE INTENT BEHIND DECLARED VALUE SHIPMENTS

Just by declaring the value of a shipment on the face of Bill of Lading, why is it that the carrier is expected to become liable for that value? Why have the regulations prescribed this condition? What changes when you declare a value on a piece of paper? It is all about selection and decision-making opportunities given to each of the contracting party, namely the shipper and the carrier.

In A & A Trading Ltd. v. DIL’S Trucking Inc., 2015, Justice Thomas A. Bielby, writing for the Ontario Superior Court of Justice confirmed:

………the legislative intent behind the requirement of the shipper to declare the value of the consignment on the face of the contract of carriage is to provide notice to the carrier of the value of the risk and to provide the carrier with the opportunity to decide whether to assume the risk.

By the provision/option of declaring a value on the bill of lading, the shipper is given an opportunity to request that the carrier be liable for a greater amount, up to the declared value and not for a statutory amount based on the cargo’s weight. Also, the carrier has been given an opportunity to gauge the risk involved in transportation of this shipment and the carrier, depending upon its risk appetite, now has an opportunity to either reject or accept the declared value shipment. Not only that, the carrier may also insist on the limited value or may decide to accept the declared valuation and charge the shipper with additional freight charges to cover this increase in liability.

DECLARED VALUE IS NOT THE SHIPMENT VALUE

It is pertinent to note here that the declared value simply creates a threshold on the maximum liability of the carrier. The declared value itself cannot be relied upon as the actual value of the shipment. It is required to be proven based on usual shipping documentation, such as commercial invoices, purchase orders, etc. Thus, by declaring a lower value on the shipment, the shipper is bearing the risk of limiting the liability of the carrier to the declared value which will not hold the carrier liable, in case of a total loss, for the entire actual shipment value. Similarly, declaring a higher value does not mean the carrier will be bound to pay the declared value in case of a total loss, unless the declared value is proven to be the actual shipment value.

Another interesting situation may arise where multiple articles are involved in the shipment, each declared separately. Again, the total value declared for all the articles will become the declared value on the entire shipment and it cannot be argued by the carrier that since only a few articles got damaged, respective declared values will apply to determine the maximum liability.

WHAT A MOTOR TRUCK CARRIER SHOULD DO

It ‘s very crucial to let one’s insurance broker know at the time of getting an insurance quote whether the carrier is accepting declared value shipments, or not. Generally, while accepting such shipments, a trucker would charge additional freight to cover the costs of additional premium charged by the Insurers to endorse coverage for declared value shipments.  Further, if the carrier has any contracts where one may have accepted liability for full shipment value, it must be made sure that all such contracts are known to the insurance broker and are endorsed by the Insurers, and additional premium, as may be applicable, could be charged accordingly. Failure to do so and disclose such contracts or accept declared value shipments without informing the insurance broker/insurers may leave a carrier out of pocket for thousands of dollars.

DECLARED VALUE CASE STUDY

A carrier, hauling a shipment of empty polyester/nylon school bags, meets with an accident, damaging the entire shipment. Or for that matter, suppose the shipment gets stolen in transit and never gets recovered. The weight of the shipment was, say, 10,000 lbs only. The Bill of Lading had a declared value of the shipment at $50,000 CAD. The shipment originated in Ontario and was destined to Alberta. Likely, the legal liability of the motor truck carrier, pursuant to the provincial statutory regulations, in this case, will be limited to a valuation of $2/lbs, amounting to only $20,000 CAD. However, being a declared value shipment, the carrier will be held responsible up to the declared value of the shipment, which in this case is the invoice value.  Now, if the insurers were not made aware that declared value shipments are accepted by the carrier, the claim will be settled by the Insurers for only $20,000 CAD and the carrier will then be out of pocket for the difference of $30,000 CAD.

TAKEAWAY

In view of the foregoing, the biggest takeaway is that a carrier should never accept a declared value shipment, or for that matter sign any contracts accepting liability for the full shipment value, unless the insurance broker is aware of such practices and appropriate additional freight has been charged. It is imperative to have sufficient coverage in place from the insurers and adequate limits must be available in the motor truck cargo legal liability policy to cover the risk, especially for high value shipments.

LEARN MORE ABOUT THE BILL OF LADING

Want to better understand the Bill of Lading regulations and best practices? Register here for our upcoming Webinar: Understanding the Bill of Lading.

Since immigrating to Canada in 2012, Shubham Gupta has held various positions as a claims professional, working for a broker, an insurer and two adjusting firms. Currently, as an independent claims consultant, he is associated with SIAdvisers Consulting & Solutions Inc., providing claims adjusting services. He specializes in Motor Truck Cargo Legal Liability and Commercial General Liability Claims. He is a published author of a book titled “Understanding the basics of Liability Claims – an adjuster’s perspective”, and also blogs about Canadian Caselaw at 4theloveofinsurance.com.

Trucking Technology is Evolving in 2019

Technology has taken over much of the world, including transportation.  

ECM downloads can predict the activity of engines, refrigerated trailers speak to the language of temperature variations from pick up to delivery, satellite tracking provide real time delivery of location, movement of vehicles, technology is improving lane assistance awareness while dash cams record a multitude of information both while in motion and while stable.   The future dictates that technology will become more refined and defined both with equipment and the ability to accept and transport freight with more knowledge than ever before.

As easy as technology makes it easy to communicate and transact business, it certainly has its pitfalls

Technology translates into more money.  More money to purchase the equipment as well as inflating the cost to repair both at the shop and at the roadside.   Just a question – will freight rates keep up with the rising costs of equipment, claims and repairs?  They should as it makes sense but in reality I fear the true answer.

What about technology as it relates to operations?  What about public profiles both with the MTO and the FMCSA?  The public has a calico of information at their fingertips by inserting a name and a click of a button.  Especially when inquiring plaintiff counsels want to scrimmage to divulge disparaging information on a carrier.  Diligence if ever before is needed to ensure that infractions are combated and checks on a monthly basis to protect the integrity of the company profile.   Many times the MTO / FMCSA will record inaccurate information on a carrier’s profile.   It’s difficult six months down the road to attempt to remove this information from a SMS or CVOR report.   Sometimes, it can affect insurance consideration or rating.   It’s far too late at renewal time to start to clean up incorrect information so the suggestion to keep monthly awareness of the public reports should not be cast aside.

As we finish of the first quarter of 2019 it’s a chance to reflect on the New Year.  The new year of many changes.   Elog technology for cross border drivers has been the education curve during the past couple years but now elogs lies on the horizon for Canadian carriers.  When is the good time to start investing and educating?  Certainly not at the last minute.   There is an adaptation period to transition from paper to technology.   Start embracing the process now, reach out and gather the feedback from current users.

More importantly we will see the immediate future dictate that dash cams and other technology be a part of our everyday lives in transportation.   In addition on many levels there will be a focus on how the Carrier educates and trains their driver force.   It always has been an expectation but the ease of technology will deny any excuse for not enforcing continual education for drivers, regardless of their tenure with a company.   Online training is a great resource.   Remedial training both theory and commentary will be necessary to refine skills that are forgotten or merely to capitalize on a refresher course.   Being a driver is a profession.   Education is needed to update skills and techniques and it needs to be documented.   If it isn’t documented, it cannot be proven that it happened.  Another thought, would one have confidence in a surgeon who graduated twenty years ago and never updated or upgraded any knowledge, skills or techniques?  I for one would be extremely cautious and seeking an alternative.   

Technology has been great in many ways, cumbersome to adapt at times but it is how life is now and in the future.   Hang on 2019 we are ready for you and here we come!

Linda started her career in the insurance industry in 1979 and gravitated toward the niche market of transportation insurance in 1986. Linda has been active in the transportation community since her beginnings and is a Board Member with the Durham Region Transportation Association. Since 2006, Linda has been contributing relevant industry articles in Ontario Trucking monthly periodicals

Risks in Shipping Contracts

Transportation industry lawyer Gordon Hearn from Fernandes Hearn sharing why your business model matters in the trucking industry

The movement of goods presents risks to every business included along the distribution chain. Whether you are a shipper, load broker, carrier, or freight agent awareness on specific contract risks is important.

Why does my business model matter for my trucking company?

Along with his colleague, Carole McAfee Wallace, Gordon Hearn joined us to go in to much greater detail in our Webinar: The Hidden Pitfalls in Shipper Carrier Contracts. With changes to the language in carrier contracts, it has never been more important to be aware of what your business is signing.
Webinar for Trucking Professionals on Shipping Carrier Contracts

~ Transcript ~

My name is Gordon Hearn and I’m a transportation lawyer with Fernandes Hearn LLP in Toronto in the transportation area. One of the areas that we’re routinely advising our clients on is the need to be deliberate with the business model that you have.

What are potential risks of stepping outside the business model to serve a shipper?

Pretend that you are servicing a shipper and that shipper wants to move goods from A to B. In a conventional way you might be the carrier where you issue the bill of lading and you are hauling goods from A to B. That of course involves specific contract and considerations. That’s a different discussion. But what if you as the carrier can’t perform the move but you want to service the needs of your shipper by facilitating or arranging a third-party fleet to perform that move? You now are, arguably, a broker and where you need to be deliberate is from the standpoint of the shipper customer.

Big Rig Truck Peterbilt

What is your legal liability for cargo loss or damage being in the middle?

Are you a freight agent where you’re simply arranging the carrier to be liable directly to the shipper, with the bill of lading being the relevant contract of carriage or, are you contracting to be responsible for the safe delivery of that cargo to destination? You need to be deliberate about what your business model is. Are you a contracting carrier? Some of our clients who are brokers say that we can’t possibly be liable for that cargo loss or damage because we don’t own a truck. Our answer is “you don’t need to own a truck”. It would be a carrier law; it’s a question of what you have undertaken to the shipper.

So, it’s important to be deliberate with what your business model is and it’s important to use the words in a contract or what you say to the shipper delicately and deliberately to set up what that role is.

Have additional questions? Email Gordon Hearn here

Linda started her career in the insurance industry in 1979 and gravitated toward the niche market of transportation insurance in 1986. Linda has been active in the transportation community since her beginnings and is a Board Member with the Durham Region Transportation Association. Since 2006, Linda has been contributing relevant industry articles in Ontario Trucking monthly periodicals

6 Methods for Preventing Cargo Theft

Transportation truck on highway primed for cargo theft as sun sets

Cargo theft in the transportation industry is on the rise in Canada. In 2017, there were reported losses totaling $46.2 million. The industry is on pace to surpass that number in 2018.

So, how do we go about minimizing the chance of suffering cargo theft? It starts with drivers and the organization working together – drivers need to act responsibly and the company needs consistent work practices to ensure loads are delivered to their final destinations.

Here are 6 methods for minimizing the chance of cargo theft:

Route Routines

Drivers who transport the same types of goods to the same destinations on a regular basis can get into a habit of stopping at the same stops and rest areas. Frequenting the same areas can make the situation predictable and easier for thieves. We recommend stopping at different stops and rest areas. As a bonus you will get to discover new things and keep your ride more interesting.

Lock it Up

This is an easy one but can be overlooked. Physical barriers definitely help to prevent theft. Air brake locks, king pins and locking bars are a few additional anti-theft features to consider. 

Stay in Communication

It is good practice to stay in communication with dispatch so they know where you are travelling. We also recommend sharing your route plans with a family member, friend or co-worker. If the person doesn’t hear from the driver at an agreed upon time, he or she will know the driver may be in trouble. Being at this level of communication also keeps those in your life in the loop and part of what you are doing.

Be Alert and Aware

Thieves seek easy targets. At a stop, minimize the time your truck is unattended. The less time the load is unattended the better. If there are two drivers, it is best practice for someone to always stay with the load.

Can You Keep a Secret?

Your company hopes so! It is best practice not to talk about the cargo you’re carrying. Whether you are at the truck stop, on the radio or anywhere else, drivers should avoid talking about the content of their load. Thieves prefer certain types of cargo so keeping that information private minimizes the chance of thieves even being interested.

It is Just Cargo

If you are a driver and find yourself in a cargo theft situation, do what you can to protect yourself. No amount of cargo is worth dying over. Cooperate, follow direction, and keep present. Drivers should concentrate on remembering details that can help maximize the chance of investigators locating the cargo safely.

Reducing cargo theft opportunities increases driver safety, delivery consistency, client happiness and overall profitability.

If you have questions, reach out to us today.

Neil has quickly become on of the top trucking insurance professionals in Ontario. His love for his wife and daughter is the only thing higher on his priority list then providing great service for those he serves.

Coverage, Contracts and the Currency Difference

Canadian insurance policies are written in Canadian dollars.

It is common knowledge that the U.S dollar holds more muscle compared the weakened Canadian currency. This means that business conducted over the border has a very dramatic impact on the payment and settlement of claims.
With the strength of the U.S. dollar repairs, towing, storage are settled at a higher amount while in the United States. Converting currency places additional strain on the limits provided by the insurance policy.

For the most part vehicle repairs will not be affected by coverage limits however the final loss settlement will have an impact on the overall loss ratio. Simply a claim in the U.S will cost the insurer/carrier more.

Many transportation companies carry minimum liability limits while travelling south of the border. Although insurance Brokers discourage this practice it now is more of an alarming concern as we watch the erosion of limits just by the dictation of the currency difference.

A Canadian carrier who maintains minimum liability of $2,000,000 does not have the parallel limits once the border is crossed. It is encouraged that elevation of limits be considered in order to maintain the original comfort of the policy limits to cover the exposures at hand.

Ever consider cargo contracts?

Many shipper contracts are generated in the U.S. The language of these contracts speak in U.S. currency. If a carrier is required to uphold a specific limit for liability and cargo, the onus of responsibility befalls upon the carrier to uphold sufficient limits and abide by the terms of the contract.  Claims in the USA cost more than in Canada. This is a person in a suit holding us a US dollar.

With the erosion of the Canadian dollar increased limits must be accommodated to advocate the binding agreements with shippers.

In Ontario, freight is governed by the Highway Traffic Act unless a carrier has bound themselves to a written contract that supersedes the boundaries of the HTA. Carmack applies to inbound freight and thus once again binds the carrier to the terms of the U.S. contractual agreement for the transportation of goods.

In summary respect the limits of the policy and any terms that could be breached by currency differences and adjust the coverage limits accordingly.

Linda started her career in the insurance industry in 1979 and gravitated toward the niche market of transportation insurance in 1986. Linda has been active in the transportation community since her beginnings and is a Board Member with the Durham Region Transportation Association. Since 2006, Linda has been contributing relevant industry articles in Ontario Trucking monthly periodicals