Drivers, Late Arrival, and Damages

Our Transportation Guidelines provide—

…it is recommended that the parties consider (in consultation with their attorneys) a liquidated damages provision in the event the Carrier fails to meet the arrival time. For example, the contract could include a provision providing for damages of $30.00 for every hour the Carrier is late, up to seventy-two (72) hours, or actual losses, whichever is greater. Because a liquidated damages provision may be deemed unenforceable if it is punitive in nature, it is recommended that any such provision be reasonable and a genuine estimate of what losses would be in the event the Carrier is late. It stands to reason that losses would accrue at a faster rate with strawberries than with a less perishable commodity such as onions.

In the case you describe, for mediation purposes, we would encourage the interested parties to consider settling for liquidated damages of $30 an hour. For a 15-hour delay, this amounts to damages of $450. And while your truck broker may argue that your $1,000 provision is not enforceable, and that therefore no fee should apply, we would hope your truck broker would recognize that the service it sold you fell short of expectations and would be willing to work with you to find an amicable resolution.