By Luis Lopez, AI transportation consultant, CEO of Go Hub.io Holdings Corp and subsidiaries, and host of the Freight Guru Podcast
When a damaged shipment arrives, the natural reaction is to clear it out. The pallets are in the way, the product looks worthless, and nobody wants to stare at a mess on the dock. But throwing damaged freight away too soon can do real harm to a cargo claim. The evidence that proves what happened, how bad it was and what it was worth goes into the dumpster with it. This article explains spoliation, why it matters in cargo claims, and how to balance clearing out damaged goods with preserving the proof you need.
What Spoliation Means
Spoliation is the destruction, disposal or alteration of evidence. In litigation or another formal dispute, courts can sanction a party that destroys evidence that should have been preserved. One common sanction is an adverse inference, where the decision maker is allowed to assume the missing evidence would have hurt the party that got rid of it. Other consequences are possible too, and the outcome always depends on the jurisdiction and the specific facts.
In everyday cargo claims, spoliation rarely shows up as a formal ruling. More often it shows up as a claim that cannot be proven. The carrier asks to inspect the goods, the goods are gone, and the claimant is left with a few blurry photos and an invoice. Even without any sanction, that is a weak position.
Why Damaged Freight Is Evidence
Under the Carmack Amendment, 49 U.S.C. 14706, a motor carrier is liable for the actual loss or injury to property it transports, subject to its defenses. To recover, a claimant generally has to show the goods were tendered in good condition, arrived damaged or short, and the amount of the loss. The damaged freight itself helps prove all three. It shows the type and extent of the damage, whether it is consistent with handling in transit, and whether any of the product can still be sold or used. For the basics of carrier liability, see our explainer on the Carmack Amendment.
A carrier reviewing a claim will want to know things that only the physical goods can answer. Was the damage caused by a forklift, by load shift, by water, or by poor packaging? Is the entire shipment a loss, or only the outer layers? Can some cartons be repacked and sold? Once the goods are gone, those questions become arguments instead of observations.
Notice and the Chance to Inspect
The most important step is giving the carrier written notice of the damage and a reasonable opportunity to inspect before disposing of anything. Federal claim rules in 49 CFR Part 370 describe what a claim must contain: under 370.3, it must be in writing, identify the shipment, assert liability for the loss or damage, and make a claim for a specified or determinable amount. The carrier must acknowledge a claim within 30 days under 370.5 and pay, decline or make a firm settlement offer within 120 days under 370.9. Carriers also cannot set a claim-filing period shorter than nine months.
Inspection is separate from filing the claim, and it should happen quickly. Tell the carrier what was damaged, where it is, and how long you can reasonably hold it. Put the request in writing. If the carrier inspects, note who came and when. If the carrier declines or does not respond within a reasonable time, keep a record of that too.
Duty to Mitigate Versus Preserving Evidence
Claimants are generally expected to take reasonable steps to limit their losses. That can mean salvaging what can be saved, selling damaged goods for what they will bring, or moving product out of space you need. The tension is obvious: mitigation pushes you to act quickly, while evidence preservation pushes you to wait.
The way through is usually to document thoroughly, give notice, and make the disposal decision with the carrier involved rather than alone. Mitigation is not a reason to skip notice. It is a reason to move the notice and inspection process along quickly.
Salvage Rights
Carriers often have an interest in damaged goods because of salvage. If a carrier pays the full value of damaged freight, it may be entitled to take the goods and sell them to recover some of its cost. Destroying the goods without the carrier’s agreement can interfere with that right and gives the carrier one more reason to dispute or reduce the claim. Our article on salvage rights in cargo claims covers how that process usually works.
Some products should not go into salvage at all, such as goods that are unsafe, regulated, or protected by brand restrictions. If that applies, say so in writing and propose an alternative, such as documented destruction with a certificate.
Document Before Anything Leaves
Good documentation will not replace an inspection, but it makes a claim much stronger and reduces the room for disagreement. Before disposing of anything:
- Photograph everything. Take wide shots of the trailer and pallets as delivered, then close-ups of each type of damage, labels, markings and seals. Our guide to photo evidence for freight claims goes into detail.
- Keep samples. Hold representative damaged units, especially ones that show the damage clearly.
- Keep the packaging. Crushed cartons, torn wrap, broken pallets and inner packaging show how the damage happened and whether packaging was adequate.
- Record counts. Note how many units are damaged, how many appear sound, and how you decided.
- Note it on the delivery receipt. Specific exceptions made at delivery are far more persuasive than a general note made later.
Concealed damage, found after a clean delivery receipt, makes preservation even more important, because the physical goods may be the strongest evidence you have. See our article on concealed damage claims for that situation.
Get Disposal Authorization in Writing
When the goods need to go, ask the carrier for written authorization to dispose of them, or written confirmation that it waives inspection and salvage. A short email is enough if it is clear. If the carrier will not respond, send a written notice stating the date after which you will dispose of the goods unless it inspects or asks you to hold them. Keep that notice in the claim file.
If the goods are sold for salvage or destroyed, keep the records: who took them, what was paid, or a certificate of destruction.
A Practical Checklist
- Note specific damage on the delivery receipt.
- Photograph the load, the packaging and the damage before moving anything.
- Separate damaged goods and keep them in a secure area.
- Give the carrier written notice and offer a reasonable inspection window.
- File the written claim with the required information and a specified or determinable amount.
- Keep samples and packaging even after the bulk is gone.
- Get written disposal authorization, or send a written notice before disposal.
- Keep salvage or destruction records in the claim file.
The Takeaway
Getting damaged freight off the dock is reasonable. Doing it before the carrier has had notice and a chance to look is what causes problems. Document thoroughly, communicate in writing, and treat the damaged goods as evidence until the carrier has had its opportunity to inspect.
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About the author: Luis Lopez is a Miami-based AI transportation consultant and logistics entrepreneur, the CEO of Go Hub.io Holdings Corp and subsidiaries, and host of the Freight Guru Podcast.
This article is general information for the freight community, not legal advice. Talk to a transportation attorney about your specific situation.