Legal Question in Civil Litigation in Kansas


First, thank you in advance to whomever responds to my question; being nudged in the right direction would be of exceptional help. There is no "transportation" or "contract" law category, so "civil litigation" seemed appropriate. If there is a more accurate category, please feel free to school me on where to re-post.

On to the questions - they pertains to contract law and civil litigation, specifically regarding binding contracts that SHOULD be identical in content but conflict with one anothert. Also, there is a question of incorporating additional language into the document after the document has been executed (after signatures applied by both parties.) This point of law would be handled in district court under the Carmack Amendment, 49 U.S.C. Section 14706 et seq. Significant damage occurred to a very expensive piece of freight, and the answers to my questions will be paramount in determining the carrier's liability for damages.

The background and question one: A bill of lading was generated by a third party, an online freight broker. Two copies of the bill of lading were printed, one for me and one for the carrier. This BOL includes information to be filled in by hand, specifically a "declared value" of the shipment, and "special instructions." My copy of the BOL has a declared value, special shipping instructions, and the signatures of both parties at the time of receipt. The carrier's copy of the BOL does not list a declared value, yet has the signatures of both parties as well. (I just discovered this discrepancy after filing the damage claim.) The accusation of fraud or document tampering could be directed towards either party, as we both have vested interest in the contents of our respective documents. My contention is that, instead of fraud, information was unintentionally omitted from one of the documents. My question: is there clear precedent for which document would prevail as the authoritative copy?

My second question regarding the same situation: The carrier adds a sticker to the document, printed on-site by their driver, that incorporates additional language in to the document - specifically the carrier's tariff. It is a point of law that the incorporation of this tariff into a properly executed document binds the shipper to the rules of the carrier's tariff, specifically including the carrier's maximum liability. Presumably, the proper order of things is for the carrier to apply the sticker, both parties sign the document, then load the freight. In this circumstance, the process was backwards - the freight was loaded, the BOL was signed by both parties, then the sticker was applied to the carrier's copy. Also, the sticker was not applied to my copy at all - it was handed to me, still attached to the sticker-back. My question - does the application of the sticker legally alter the document if applied after the document was signed by both parties?

I seem to have a third question after all. These arguments may or may not be pretty lean, but it is not my word against the driver's; five people can testify to the veracity of my claims that the "declared value" was written on my BOL at the time if signing, that the sticker was applied to the shipper's copy after the document was signed, and all of this happened after the freight was received. Two of the witnesses are impartial parties (they are not employees.) The only carrier witness was the driver himself.

Thank you again for any help, it would be greatly appreciated!

P.S. I do not mind paying for consultation, but most attorneys I've talked to have no experience with Carmack; I need to know that whomever I'm paying has ample experience in this area.

Asked on 7/27/11, 3:34 pm

1 Answer from Attorneys

Anthony Smith LawSmith

There are more consideratiosn than yrou set of facts provide. Therefore, yo probalgby need individual advice from an attorney that can have access to the documents you mentioned and others. Geenral contract law says htat no term may be unilaterally added unles both parties anticiapted in theri origianl agreement. Most shipping cases say that each party os already on notic eof the tariff field by all shippers they employ or coordiante with. If you are still needing advice, I suggest you call Allan Culp at (816) 842-2999. He occassuionally takes cases like yours. otherwise, yo may need to pay an attorney for research time if you want advice only on the Carmack aspect.

Good luck

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Answered on 8/09/11, 3:17 pm

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