Shippers may be held liable in accidents Posted by DC Cargo Mall on October 26, 2010

Monday, October 25, 2010
By Shannon P. Duffy, The Legal Intelligencer

When a trucking accident is caused by a shift in cargo, the shipper -- not just the trucker or carrier -- may be held responsible if evidence shows that the company sending the cargo shared the duty of securing the load, a federal court has ruled.

The ruling is a victory for a truck driver who was injured in May 2005 when his tractor-trailer overturned as it rounded a bend in Hanover, York County.

In Spence v. ESAB Group Inc., the 3rd U.S. Circuit Court of Appeals rejected the argument that federal trucking regulations impose a safety obligation only on the carrier, and that Pennsylvania law would not impose the same duty on the shipper.

The unanimous three-judge panel reversed a decision by U.S. District Judge Sylvia H. Rambo in Harrisburg, which granted summary judgment in favor of the shipper, on the grounds that the Federal Motor Carrier Safety Administration's regulations require of the carrier (but not the shipper) the exclusive duty to safely secure cargo to prevent shifting during transit.

The 3rd Circuit said Judge Rambo read the federal regulations too broadly, and failed to recognize that shippers may share responsibility, depending on the facts of the case.

"Those who undertake the task of loading, securing, and hauling cargo on tractor-trailers have a duty to exercise due care to protect property and persons from the risk of harm," U.S. Circuit Judge Thomas Vanaskie wrote. Judge Vanaskie, who was joined by Judges Julio M. Fuentes and Joseph F. Weis, found that the "primary duty" to assure that a load does not shift in transit "generally rests with the carrier and its driver."

But Judge Vanaskie also found that "where there is evidence that a shipper undertook to load and secure the cargo being transported by a third-party carrier, the shipper also bears an obligation to exercise reasonable care."

That's good news for plaintiff Charles Spence, the Houston truck driver who was seriously injured in a rollover accident, soon after picking up a load of welding supplies from the ESAB Group's plant in Hanover, Pa. In the suit, Mr. Spence claims that ESAB workers assured him that their method of securing the load with metal cleats on each pallet was sufficient, and that it was unnecessary to use the more complicated block-and-brace process that calls for securing each pallet in a wooden frame nailed to the floor of the truck.

ESAB's lawyers at Pepper Hamilton moved for dismissal of the suit, arguing that, as the shipper, it owed no duty to Mr. Spence, the driver. Federal regulations, the defense argued, "squarely" and "exclusively" place the duty to ensure that cargo is adequately secured on the driver, and not the shipper.

But the plaintiffs' lawyers from Connelly Baker & Wotring in Houston argued that Pennsylvania law was on their side.

They cited the 1952 decision from the Pennsylvania Supreme Court in Kunkle v. Continental Transportation Lines Inc., which held that a shipper can be held to owe a duty of care in both loading and securing the cargo.

Now the 3rd Circuit has sided with the plaintiffs, agreeing that the Kunkle precedent remains good law despite predating the federal trucking regulations.

"By finding the shipper liable, the court in Kunkle necessarily recognized that the shipper had a duty to perform its undertakings [with] due care," Judge Vanaskie wrote.

The evidence could convince a jury that ESAB assumed the duty to secure the load: "There was evidence that ESAB selected the appropriate securement device, that Spence complained to ESAB concerning the way the cargo was loaded and secured, that ESAB in response stated that it never had a problem with any of its loads, and that Spence relied upon this assurance in using only load stars to prevent lateral movement of the cargo," Judge Vanaskie wrote.

Plaintiffs attorney David George of Connelly Baker said he was pleased that the 3rd Circuit decision "clarified an area of law that had become murky."

ESAB's lead lawyer, Charles S. Marion of Pepper Hamilton, said the 3rd Circuit ruling "leaves Pennsylvania in the minority" because most states have followed the 4th Circuit's Savage rule. But Mr. Marion also said that if ESAB is ultimately forced to take the case to trial, he is confident that it will prevail because even if ESAB is held to have a duty of care, the plaintiff "will not be able to show a breach of that duty."

Shannon P. Duffy: