Possible contamination of shipment: replacement costs more than original shipment. (Q & A).

Q: Our company consolidates LTL shipments into full truckloads with the partial truckloads treated as stop-offs. Recently we received a claim from a client for several pallets of food-grade packaging that were refused by their customer. This shipment was delivered by the carrier with metal shavings scattered on the trailer floor.

Our firm tendered this shipment destined to Kentucky to the carrier along with another shipment consigned to a point in Ohio. The trailer on which these shipments were loaded was inspected at our warehouse prior to loading, and was sealed after loading.

According to the paperwork we received from the carrier the shipment was delivered on a trailer with a different identification number, which would indicate that somewhere en route part of the freight was removed from the original unit and allows the possibility that additional freight was loaded on the original trailer. This shipment was perhaps a shipment of metal shavings or contained shavings.

The shipment was returned to us after its refusal, and an inspection of the shrink-wrapped pallets shows no signs of the shavings. However, the consignee refused the material because of possible contamination of the material; the possibility of product liability and/or damage to their packaging machinery should metal shavings be present.

The carrier has declined payment of this claim as there was no evidence of shavings on the returned product. We have photos from the consignee showing the product on the trailer with the shavings on the floor. Your comments would be appreciated. This claim is for several tens of thousands of dollars.

A: Since you tell me a fair amount of money is at stake, I really hate to tell you that I think the carrier isn't liable. But in fact I do think so.

Given that inspection proved your shipment uncontaminated by these metal shavings, the most for which the carrier could be held liable is the inspection cost to prove that. But given that the shipment in question was shrink-wrapped, there appears no great likelihood of this. And inspection costs that prove a negative -- no injury -- generally are not recoverable; see Martin v. Delaware, L. &W. R. Co., 141 N.Y.S. 942, and others.