Foul Odor from the Cargo: What’s a Driver’s Duty?
Another odd case: An employee of a chemical company claimed to have developed respiratory airway disease syndrome from exposure to distillate of solvent delivered by two separate trucking companies from the same shipper to the same consignee.
The first shipment contained 88 barrels of the distillate that were stored in the same trailer from the point of origin to the point of destination. When the cargo was received, a very strong odor emanated from the trailer, but there was no evidence of the cargo being damaged and the consignee accepted the cargo without exception. Nevertheless, two employees claimed to have suffered an injury from exposure.
A few days later, about 30 barrels of the distillate were delivered by my client, who hauled less-than-truckload. There was no indication along the route of any problems with the cargo in question, nor with any other cargo with it in transit.
On the day of delivery, our driver noticed a strong odor coming from the trailer when he was making other deliveries. Several times, he looked to see if there was any damage to the cargo in question. There was no evidence of damage and no leaks in the cargo that was packaged and shrink-wrapped by the shipper. Even though the consignee was aware of the complaints about the previous shipment, it received this second shipment without exception.
Almost a week later, while both shipments were stored in an unventilated warehouse, one person claimed to have been overcome by the fumes and odors coming from the drums. At that point a small dampness was noted near the lower chimes of a few barrels.
Subsequently, the shipper, receiver (the employer of the injured party), the barrel manufacturer and both trucking companies were sued for various negligent acts.
Ultimately, our client was successful, but not before extensive work in the defense of this claim because the details of the cargo in route had to be evaluated very closely. Because the cargo was transported by several drivers and stored in route, we had to ensure that there was no damage in route and no contamination of other cargo in transit with the barrels of distillate.
Fortunately, my client is very detailed. We were able to locate the original bills of lading and the receipts for each piece of cargo that was in the same trailer as the cargo in question. None of the receipts reported contamination or exceptions. We were able to identify each driver, dockworker and warehouseman handling the cargo. Of course, no one had any particular recall of the cargo because there was nothing exceptional about it.
Throughout the process, I continued to argue that there was no DUTY for a driver to do anything more specific than check to see if the cargo was damaged if he smelled an unusual odor. However, one of the other defendants tried to make the age old argument “He who smelt it, dealt it.” Sorry to be crude, but it was funny!
Now back to the serious mode.
According to 49 CFR 177.854(c)(2), packages of hazardous materials that are damaged or found leaking during transportation, and hazardous materials that have spilled or leaked during transportation, may be forwarded to destination or returned to the shipper in a salvage drum in accordance with the requirements of §§173.3(c) of this subchapter. §§173.3(c) basically outlines the over packing guidelines and what type of container can be used.
OSHA rule 1910.119 dictates that the employer must create the safety protocol and procedures for when an employee is handling highly hazardous chemicals.
The Department of Transportation guidelines and found nothing over the CFR rules. The DOT Pipeline and Hazardous Materials Safety Administration has a Hazardous Materials Information Center that can be used to interpret the CFR. Their hotline is 1-800-HMR-4922. They also have a mailing address: Mr. Edward T. Mazzullo, Director of Hazardous Materials Standards, U.S. DOT/PHMSA (PHH-10), 1200 New Jersey Avenue SE East Building, 2nd floor, Washington, DC 20590.
Most of the cases relating to chemical related to dumping. Others pertained to injuries of the truck driver after being exposed and were primarily Worker’s Comp issues. There were one or two that included, in the facts of the case, that the driver reported the smell to the unloading employee but nothing more substantial than that.
From my investigation there is not a single case that addressed the specific duties or responsibilities when a driver smells an odor. According to the Code of Federal Regulations, the driver could either continue to his destination or return to the shipper of the chemicals.
The driver who smelled the odor coming from his trailer did not neglect any duty. The CFR says that the driver can over pack the damaged drums in an appropriately sized and labeled container, but does not mandate over packing. It hardly seems likely that a sole truck driver would have the skills or equipment necessary to over pack 55-gallon drums en route and it is unlikely that the CFR would require such measures.
The handbook to obtain a commercial driver’s license does not require a driver to stop the delivery and call the Department of Environmental Quality or Department of Transportation unless there is an actual release/spill of the substance.
The plaintiff’s attorney tried to argue that an odor is a “release”, but we found no evidence to support such a definition. Also, there are no video training materials that require a driver to do anything more than investigate to determine if there is damage or release. Nothing in training manuals or hazmat training require more than the investigation of damage or leak.
Cases that are based on nebulous issues are the most difficult to defend. Essentially, we had to prove a negative (ie that there was no evidence/duty).
We did a good job, but not without much time and resources devoted to the case.
What about any of you? Have you had to address this issue?
I would be interested in your approach/defenses. Care to share?