As the Court explained in Oak Harbor Freight Lines, Inc. v. Sears Roebuck & Co., supra, 513 F.3d at p. 956, carriers can waive the right to recover directly from shippers as a matter of contract:
The parties to a freight shipment generally are free to assign liability for the payment of freight charges through a contract separate from the bill of lading. Louisville & Nashville R.R. Co. v. Cent. Iron & Coal Co., 265 U.S. 59, 66-67, 44 S. Ct. 441, 68 L. Ed. 900 (1924). Such a contract may provide that "the shipper agrees absolutely to pay the charges, or . . . merely that he shall pay if the consignee does not pay . . . , or . . . that only the [consignee] shall be liable for the freight charges, or [that] both the shipper and the consignee may be made liable." Id. "It is only where the parties fail to agree or where discriminatory practices are present that the [bill of lading] default terms bind the parties." C.A.R. Transp., 213 F.3d at 479 (emphases added).
Although it is not entirely clear how such a waiver benefits a property broker, the Transportation Intermediary Association’s Model Broker-Carrier contract includes a provision (paragraph 2.D.i.) which provides that "CARRIER shall not seek payment from Shipper if Shipper can prove payment to BROKER." Thus, if the carrier is either inexperienced or not represented by competent transportation counsel, it might waive the right to collect unpaid freight charges from the shipper.
If you or your trucking company have questions about defenses to double payment or contractual waivers by a carrier, the attorneys at the law firm of Bostwick & Price, P.C. are available to answer your questions and concerns. www.bostwickprice.com
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