Boat Held Hostage By Marine Transport Company

[Dsanduril]

Wow this has been fascinating. I don't know that I have anything valuable, but maybe a couple of lessons learned from all of this. First, here is what the law has to say about holding the boat:

Conversion claims also occasionally arise when the carrier is so misguided as to withhold delivery of freight in an effort to induce shippers or consignees to pay their bills or otherwise settle past obligations. In law, the carrier has a lien on goods in its custody only as to freight charges on that shipment-not on past shipments (or as to any other obligations, past or current). Thus the carrier may refuse to deliver a shipment until freight charges on it are paid-but, if it attempts to hold the shipment hostage in an effort to make other collections it is guilty of conversion without regard to the validity of the bills it's trying to collect or how long past due they may be.
13 C.J.S Carriers §325-326

Further case notes indicate that the carrier must present the freight to the consignee at the original destination along with the demand for payment. Only after the demand has been made (and refused) may the carrier impound the freight.

On impoundment the carrier must make public notice of the impoundment, the location, the amount owed, and the location where payment can be made. That notice must, at a minimum, be published in two "general circulation newspapers" for at least two consecutive weeks.

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There was a lot of mention of the Uniform Commercial Code (UCC) throughout this thread. The UCC does not apply to interstate freight. The Carmack Amendment, formerly part of ICC regulations, and now part of 49 U.S.C. §14706 (2005) covers pretty much all shipping liability for interstate shipments (including those where both consignor and consignee are in the same state but the shipment happens to cross over the state line and then back on its travels!). The Carmack Amendment supersedes all UCC, state, and local codes/laws/regulations. This was decided by the Supreme Court something like 100 years ago (Missouri, K. & T.R. Co. of Tex. v. Harris, 234 U.S. 412, 420 (1914), New York, N.H. & H.R. Co, v. Nothnagle, 346 U.S.128, 131 (1953), Charleston & Western Carolina Railway Co. v. Varnville Furniture Co., 237 U.S. 597, 603 (1915)). In their opinions, the court did allow that a shipper and carrier could sign a contract calling for the application of the UCC, but absent specific contractual language (which appears to be the case here) incorporating the UCC by reference into the contract the UCC does not apply. The reason for this is to provide all carriers with a uniform set of regulations with regard to interstate shipments. So, if you want some of the protections provided by the UCC (or if the carrier wants them) you must have contract language making that clear.

The broad reach of Carmack preempts plaintiff’s state law claims, which includes claims for: 1) the tort of outrage; 2) intentional and negligent infliction of emotional distress; 3) breach of contract; 4) breach of implied warranty; 5) breach of express warranty; 6) violation of the a state’s deceptive trade practices or consumer protection statutes; 7) slander; 8) misrepresentation; 9) fraud; 10) negligence and gross negligence; and 11) violation of the common carrier’s statutory duties as a common carrier under state law. Hoskins v. Bekins Van Lines, 343 F.3d 769, 777 (5th Cir. 2003).

Carmack also preempts federal common law that increases the carrier’s liability beyond the actual loss or injury to the property, unless the shipper alleges injuries separate and apart from those resulting directly from the loss of shipped property. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 379 (5th Cir. 1998).

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Under Carmack it is the carrier's responsibility to tender a Bill of Lading to the consignor on pick-up of the freight (49 U.S.C. §14706(a)(1) (2005)). At a minimum the BoL contains information on the consignor, the consignee, the carrier/forwarders, and the goods to be carried. In this case it can basically be viewed as a receipt for the goods. Absent a BoL signed by the shipper the carrier has no proof that he is in legitimate possession of the goods. In other words, if the carrier does not issue a BoL it is a much easier case to make that the goods are stolen.

BoL's frequently represent the only contract between shipper and carrier, and so should be reviewed carefully by shipper before acceptance. Absent any other contractual documents the BoL will define all terms, and, since it is generally prepared by the carrier it tends to be in their favor.

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As for delay:

When there has been a delay in the delivery of goods, the question turns on the definition of delay. A carrier is liable for an unreasonable delay. The United States Supreme Court in Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 213 (1931), defined a reasonable time for delivery as “such time as is necessary conveniently to transport and make delivery of the shipment in the ordinary course of business, in light of the Circumstances and conditions surrounding the transaction.”

The case law since that decision has made it clear that damages for delay are very difficult to obtain, especially in cases like these where the goods are not intended for sale at the end of the shipment and thus there is no direct economic harm. Your contract for carriage, in whatever form, should specify a delivery date and should contain a liquidated damages clause that defines the charges to be paid by carrier in the event of a delay. By specifying liquidated damages the shipper is notifying the carrier of the value of delay, and the courts will generally award based on the LD clause. Otherwise the shipper must prove economic harm in order to obtain relief.

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All of this is water under the bridge for the OP (and maybe Dansante85), but hopefully it will allow those of us who have to make these arrangements in the future to approach them with open eyes.

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And then lastly, if the OP's boat was too heavy for the trailer, why were two masts added to the load later? Seems that would only increase the overload?

[Dansante85]

Danduril, very informed post. I don't think any of us think that when we pay to have something shipped on a truck in these here United States that we have to be prepared for a Supreme Court Case to get our property to destination. Thanks for your interest.

[Dansante85]

Excuse me, "DSANDURIL'.

[cheoah]

Are ya'll for real?

Sounds like two guys without much business experience trying to work out a bad business deal. Messy business.

I feel for both of them. The owner got quoted one price, based on an assumed weight. Boat was way overweight, but the professional trucker still carried it clear to the west coast without resolving first. The owner, if all this is correct, was essentially underquoted, and isn't paying a fair rate for 13 tons, cross country.

I think the trucker has to eat it. What kind of professional gets into a job, realizes the scope of work is well beyond the original, yet completes the job, only to renegotiate then? You get paid to do smart things. I'm sure he's done plenty of smart things, this just ain't one of them. If my business was moving boats, you bet your ass I'd have an accurate weight before I covered a county or two. If I can tell the difference between 5 cattle and 7 on a trailer, then a pro trucker could feel an extra 5 tons of yacht. There are weigh stations all over eastern NC, on the highways, and off, for farmers, etc.

For the Brit that feels sorry for us N Carolinians, please dont! We'll be just fine -- despite the slapstick antics of Big Dog --with our $90+ billion in Ag receipts, among many other redeeming industries. We do however, lament your unfortunate association with the BBC in light of recent events. I hate to be flippant about that, really, but makes the point that most of us don't associate an entire culture with one errant personality. Boatmans situation in Australia is a parallel here, but we don't hold Aussies to account for one sour deal. I mean, as voyagers, being open to other cultures, other points of view is something we excel at, right?

If the owner knowingly misrepresented the weight of the boat...well, this sounds like a personal problem, and this boat would be the tip of the iceberg. All speculation, as on an internet forum, one can represent themselves however they choose. I wonder if either party will regret this aspect of their deal in the end - the playing it out in a public forum part. The numbers speak for themselves, and it is clear that we are all getting some entertainment value out of it. Definitely some lessons, and very intersting to hear some attorneys and truckers chime in. Dsanduril, good info. Hope it gets resolved amiably, and that we get to find out, after slogging through the more tedious aspects of this thread.

[Coops]

Disregarding the OP, i am amazed that people still defend this trucker when we have the fact( i throw that word around as easily as others) that someone is waiting for his mast who has been misled, to put it as nice as i can, by this bloke Steadly. We have two members on this forum who are being badly treated by someone who is not a member. Does anyone expect us not to take sides?

Coops.

[xymotic]

Originally Posted by cheoah

Are ya'll for real?

I feel for both of them. The owner got quoted one price, based on an assumed weight. Boat was way overweight, but the professional trucker still carried it clear to the west coast without resolving first.

Louisiana is not the west coast

[Dansante85]

Thanks Coops. I have alway been fond of Aussies ever since Viet Nam. The number of people that even consider giving the trucker standing here is disappointing. The contention that some hold that the trucker is somehow a victim is astonishing. Poor trucker, took money, then expected to deliver cargo. Bad customer, bad customer. I appreciate all of the well wishers on the forum but at some point this has to end. I am sorry for all of those who have set aside their mystery novels to see what happens in this sorry saga. At least for the "mast guy" this is my last post. I guess you Perry Mason fans will never know if Steadley gave me my mast back or not. Adios. Dansante

[cheoah]

Originally Posted by xymotic

Louisiana is not the west coast

West coast of the Mississippi River?

In all seriousness, I read Los Angeles. Guess he is half the ding-dong I thought.

[xymotic]

Originally Posted by cheoah

West coast of the Mississippi River?

In all seriousness, I read Los Angeles. Guess he is half the ding-dong I thought.

If that were the case I think it would reflect even worse on the driver. Who the heck would take it that far and not drive the four hours required to actually deliver the thing.

[SurferShane]

Originally Posted by xymotic

Re the name Big Dog Transport I think it's pretty amusing how people take issue with the nature of the dog, when clearly it's the 'transport' part that's questionable..

Yes, Big Dog is the fury character that tells kids its time to go to bed on NBN Television (Newcastle Australia). Quite comical to imagine the big guy behind the wheel of a prime mover!

If this phone would cooperate with the site I would post pictures.

[Christerart]

Originally Posted by xymotic

If that were the case I think it would reflect even worse on the driver. Who the heck would take it that far and not drive the four hours required to actually deliver the thing.

As a former OO (Owner operator of a truck and trailer) and small trucking company owner I can unequivocally state that no professional trucker would perform as this person. The FIRST thing you do is head for the nearest scale, be it a truck stop, a moving company, a private scale.

If you've been in a business for some time you know the location of every scale around you - if you don't it is an easy thing to find out.

And, if you have *any* experience hauling boats - like this guy is supposed to - he would know pretty much instantly when the boat was loaded if it was indeed that much heavier.

If I'd accepted a load, trucked it half way across the nation and then called my shipper (in the good old days) and told the shipper what this guy did (as put forth in this thread) I'd been laughed out of the phone booth and told in no uncertain words to deliver the shipment or....

Having followed this thread from the start I place a lot more credence in the OP - if nothing *but* the fact that the trucker seems to have been in the business for some time. So he SHOULD have known EXACTLY what to do as soon as he picked up the boat.

He didn't and eventually started demanding more money. And refused to divulge where the boat was.

Sounds like blackmail to me - perhaps the age and trusting nature of the OP led the trucker to believe it would be an easy case of some money to fix his equipment *IF* the equipment *actually* broke - we *do not know* if this in fact happened.

When one of my trucks broke on the road *I* had to get it fixed and back on the road - the shipper or receiver sure as sh%t wouldn't pay for the repairs.

MY truck - MY responsibility - pretty obvious isn't it?

There are too many shady turns in this story - and more unhappy customers like the OP - for me to believe anything claimed by the trucker at this point.

Never would I ever let this guy get within 100' of any boat I own.

That said, the OP should have contacted a lawyer familiar with interstate trucking and regs as soon as the trucker made the first demand for more money (and of course never have let the boat out of his control without a "standard contract or BOL - even though the OP thought he *had* a contract - and I think the law will treat this situation as they indeed had a contract).

[kiwitrucker]

Hi. As a trucker with 50 years of transporting goods around the country I can assure you that this trucker has no leg to stand on.
!. Once you leave the shippers the trucker is 100% responsible for the load.
2. The trucker is responsible for verifying the weight of the load. ie scale the unit.
3. the trucker can NOT hold the load for payment. When he gets to destination he can refuse to remove the load securement until the freight is paid in full, for the contracted amount, usually by certified check or cash
4. The owner of the freight is in no way responsible for the repairs to the truckers rig.
5. Boats are non exempt freight and as such the trucker must have all safety and operating documents that are current. By the search on here he is not a licensed carrier.
As the boat is in California it will have to be sorted out by California lawyers. These guys get away with this crap because no one stands up to them. The shippers legal fees will have to be paid by the trucker because what he has done is illegal. There does not need to be be 2 sides to this story it is cut and dried. It would depend on the law enforcement officer as to whether the trucker has committed theft. [ This from experience]

[MysticGringo]

Originally Posted by Dansante85

Thanks Coops. I have alway been fond of Aussies ever since Viet Nam. The number of people that even consider giving the trucker standing here is disappointing. The contention that some hold that the trucker is somehow a victim is astonishing. Poor trucker, took money, then expected to deliver cargo. Bad customer, bad customer. I appreciate all of the well wishers on the forum but at some point this has to end. I am sorry for all of those who have set aside their mystery novels to see what happens in this sorry saga. At least for the "mast guy" this is my last post. I guess you Perry Mason fans will never know if Steadley gave me my mast back or not. Adios. Dansante

I can understand your frustration, and I hate to see you leave this soap opera as I believe you have contributed some of the best information here.

I think this topic has probably run its course, other than to let us know that you gave infact received your mast, and if it has been damaged in shipment. If it has, that'll add an interesting portion to this when you file claim for the damages.

Maybe I missed it, but who chose Dan as your shipper? You, or Sparcraft? I'd think if it were Sparcraft, you'd have some recourse through them... it's still not in your hands and they chose how to deliver it.

We have heard from truckers, lawyers, and experienced people... as well as some other colorful elements... now it's like debating politics, we aren't going to change anybody's minds.

I hope you get your mast, and it is undamaged.

[sailorboy1]

I hope in the end we find out what the boat really weighs and how the whole thing ends.

Other than that what is the point of this (other than a crack like thread the one keeps reading in spite of themself)?

PS - lighten up!

[Captain Bill]

I have been doing a little reading regarding Maritime liens and arresting of boats and their consequent sale to satisfy the lien. It seems that all one has to do is file a lawsuit in federal court under admiralty law and you can have the boat arrested. It does not mean that the court will find in your favor. Also if the transporter looses he will be resposible for all lawyer's fees of the defendent, storage fees etc. The one interesting thing I did see was that a Maritime Lien can only be attached for service rendered to or damages caused by a vessel in navigation on the waters of the US. It is unclear to me how transporting a vessel on land can be considered a vessel in navigation. In any case, this area of the law seems to be highly specialized. The OP had better get himself a good admiralty lawyer. The outcome of the case will make interesting reading. Keep in mind that more has been stolen by lawyers with a pen than by all the armed robbers in history.

While the same shipper is involved Dansante85's case is not complicated by falling under admiralty law. His would seem to be a simple case of being jerked around by the trucker. I hope he gets his mast back soon, but this guy's track record would seem to indicate you can't trust any of his promised delivery dates.