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Timber Sales Problem

Started by Gary_C, October 14, 2008, 05:14:44 AM

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Gary_C

Suppose you, as a landowner or forester are going to have or manage a timber sale. You arrange to have a logger cut the job thru a sale or bid and sign a standard timber sale contract.

But then as the cutting is proceeding, something goes very wrong. Seems there is a hidden hazard or some condition on the property that you are aware of but do not tell the logger of that causes an incident or accident. There are many possible hazards or conditions like a sink hole, an underground cistern or septic tank, or even a cultural or historic site like an old graveyard. And the incident or accident results in a significant loss  of property or life.

Now most timber sales contracts have what is refered to as a "hold harmless clause" to protect the landowner from claims arising from the contract. But most timber sales contracts also contain a clause requiring compliance with some kind of best management practices. And in those best management practices manuals there is an outline of the procedure a landowner, resource manager, or consultant is to follow to manage the property. The start of that process is for the resource manager to conduct a site inventory to:

Identify resources, features and site conditions that may require
special attention, such as:
• Perennial and intermittent streams, lakes, open water
wetlands, non-open water wetlands and seasonal ponds
• Steep slopes, rock outcrops, unstable or poorly drained
soils, sinkholes, seeps and springs
• Snags and nesting sites
• Cultural resources
• Soil or site conditions that may dictate specific operational
timing or methods and equipment to be used, or that may
lead to weather-related or seasonal closure of the operations
• Special soil conditions and topographic features that make
some areas of the state more sensitive than others to accelerated
erosion due to soil disturbance


And then you are required to communicate any special conditions to all parties involved including the logger.

So who do you think is going to bear responsibility for this loss?

And now as a consulting forester on this theoretical job, does your insurance cover you if you fail to advise the logger of an unusual or hidden feature that causes a loss?

And if you as a landowner are running this job yourself, will your homeowners policy cover your failure to communicate or will your insurance claim you are running a business that is not covered?


Never take life seriously. Nobody gets out alive anyway.

spencerhenry

disclosure is a word that comes to mind.

if there is an issue that you know of, and dont disclose it, and it is not easily noticed by the logger, seems to me you are liable.

for example, if you knew there was an abandoned cistern, but it is not readily visible, or marked, and the logger's forwarder falls into it, you are liable.

beenthere

I'm sure there is a clue in there somewhere... ;D ;D
..and I hope that the rainbow avatar is a clue as well.. :) :)

You sure raise some good questions about the risks involved, for all parties involved.  ::) ::)
south central Wisconsin
It may be that my sole purpose in life is simply to serve as a warning to others

woodtroll

Most Bmps are to protect the site and resource not necessarily us.
A landowner would likely not be held liable if a professional is involved.
A consultant, if they knew about the problem may be liable.
The logging co. would be liable. The job has inherent risks involved.
This all depends on the nature of the situation. If it was a none typical, man made risk, this would likely change.
For example an old mine shaft, in my area it is not uncommon to find them. Most loggers are aware they may be there.

I will discuss this with my co workers.
Good question.
All this changes with lawyers and the situation.

Ironman

It seems to me like most business deals/contracts where two parties are involved and some risk is shared, if the libility is not specifically identified in the contract and assigned to one party, then the risk is shared and an agreement will have to be reached between both parties as to how to move forward.

That may seem overly simplistic but that generally solves 90% of all disagreements.  Unless fo course there is inflexibility on one side or both.  Then it goes to court.  Where everything gets much more expensive and generally speaking, noone is happy at the outcome.

My first experience with suing someone who was a liar and a cheat, resulted in me getting half of what I asked for.  Which I suppose is better than nothing, but I think it taught me a powerful lesson.  resolve matters on the way to court, before a judge forces you to swallow something that you nor your adversary want.

Happy logging!
Jesse Sewell
Ironmart Sales
888-561-1115

Ron Scott

Any "known" hazard, risk, or special areas that the logger should stay out of should be disclosed by the landowner and/or consultant and dispayed on the timber sale map and in the harvest contract.

The logger should also be continually reminded of such areas during administration of the harvest contract and when they are nearing work in the area of such situations.

If there is an incidence, "negligence would have to be proven" on any of the parties involved in the activity.

Loggers are also expected to look over the harvest area in advance before work is performed should any hidden and unknown hazards expose themselves. They should also then disclose them to the consultant/landowner when discovered.
~Ron

Ron Wenrich

If the forester knew about it, he had no business marking timber in the area.  He did so, and expected it to be cut, knowing about the hazards.  Non disclosure would make him liable, in my opinion. 

You might be able to get a claim against the forester's insurance, but I'm betting they would come back on him.  They probably have some sort of clause where they would not be held accountable if there was something like you have described. 
Never under estimate the power of stupid people in large groups.

Gary_C

Quote from: beenthere on October 14, 2008, 10:01:30 AM

You sure raise some good questions about the risks involved, for all parties involved.  ::) ::)

That was the point of this post. For everyone in this business there are many hazards and risks that we assume when doing our jobs. While a situation as described will be rare, it is still something to be very concerned with on every job.

For the landowner, if you are contemplating a timber sale and you decide to run the sale yourself, it involves more than just hiring a logger and trying to get paid fairly for your trees. There are some responsibilities you assume that you cannot ignore and be protected by any contract and your homeowners insurance. As a matter of fact, your insurance may just bail out on you because of a business exclusion in your policy. If they do, you may be held totally responsible for damages and legal fees.

For the forester/consultant that is hired to set up and manage a sale, of course they already are aware of their responsibilities and liability in case of some incident like this, but you sometimes need a checklist to make sure you ask all the pertinent questions. Of course the cruise should identify all visible hazards. But the hidden man made hazards can still be a problem if you fail to ask for information from the landowner and he forgets to tell.

For the logger, there are plenty of those risks that you assume on any timber sale. You are expected to survey the site and see and avoid or deal with any visible hazards plus absolutely know the boundary locations, trees you are permitted to cut, and location of roads and landings, etc. If there are wetlands to deal with, streams to cross, or any number of special situations you have to know how to properly deal with those features according to the Best Management Practices for your area. And of course you assume the risk if there is a visible natural hazard that causes some problem. But if there is a hidden man made hazard or even a hidden natural hazard that was known and not communicated, it certainly can be a problem for the landowner or forester. It's very hard to deal with something you do not know exists.
Never take life seriously. Nobody gets out alive anyway.

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