This month we report:

CARGO THEFT DATA COLLECTION REPORTS – Public comments are being sought on a proposal by the FBI to extend the use of its cargo theft incident report. Under the current proposal, law enforcement agencies submit cargo theft data to the FBI in three ways: via an electronic Cargo Theft Incident Form spreadsheet; the Cargo Theft Technical Specifications; or the National Incident-Based Reporting System. The FBI is seeking comments on whether the proposed collection of information is necessary for its job performance. Electronic reporting is now being considered.  According to the notice “approximately 18,439 law enforcement agency respondents submit monthly for a total of 221,268 responses.  That is a lot of cargo theft incidents per month.

CARGO THEFT – Speaking of cargo theft, Freightwatch reports that cargo theft is down, but the value of the stolen cargo has increased. From April to June, the company recorded 166 incidents of cargo theft in the U.S., down from 221 for the previous quarter, with an average loss value per incident of $154,184, up from $112,467 in the previous quarter. Food and Beverages comprised one of every five stolen shipments. California remains the top state for cargo theft, with 40 percent of all reported thefts occurring in the Golden State. The rate represents a 91 percent increase compared to Q1 2016, and a 122 percent increase compared to the same quarter in 2015. Texas came in second with 19 percent of total reported thefts, followed by New Jersey (8 percent), Florida (7 percent) and Georgia (6 percent). Theft of full truckload remains the most prevalent method of cargo theft, accounting for 78 percent of all reported thefts. The report states that the most prevalent location for cargo thefts continues to be unsecured parking, identified in 82 percent of all incidents in which a location was declared.

DANGEROUS TRUCKING JOBS – U.S. Department of Labor bloggers have released data indicating that trucking is one of the most dangerous jobs around. One out of every six American workers killed on the job is a tractor-trailer truck driver.  In 2014 761 tractor-trailer truck drivers were killed while working,  Truck drivers have the highest number of nonfatal injuries and illnesses that require days off from work across all occupations (a total of 55,710 in 2014).

BILL OF LADING CHANGES – The National Motor Freight Traffic Association has just made substantial changes to the terms and conditions of the Uniform Straight Bill of Lading which became effective on August 13, 2016. The key changes directly affect claims against trucking companies for lost or damaged cargo. The changes include the following:

Section 1.(a) – changes the responsibility for cargo loss and damage from the “carrier or party in possession” of the cargo to the “carrier shown as transporting the property.”

Section 1.(b) – changes the burden of proof to require the shipper to prove the carrier or party in possession of the cargo was negligent rather than the carrier being required to prove that it was not negligent.

Section 1.(b) — adds “riots or strikes” to the list of carrier defenses to a cargo claim, and adds “or any related causes” in reference to the entire list of defenses.

Section 2. – eliminates the “reasonable dispatch” standard relating to delay claims against carriers, and simply says the carrier “will transport the shipment in the regular course of its providing transportation services.”

Section 3.(b) – changes the requirement that claims for failure to make delivery (i.e., claims for loss of cargo) must be filed “within nine months after a reasonable time for delivery has elapsed,” and substitutes a shorter time period of “not more than nine (9) months from the date of the bill of lading.”

Any motor carrier that is a member, and the list is long, now reaps the benefit of these changes.  Various organizations sought to prevent the implementation of the new changes by filing petitions with the STB to suspend the .changes. The STB declined to suspend the regulations but deferred a ruling requesting further investigation. So at this point the rules stand and the bill of lading has changed.  We suspect that non-members will start changing their form bills of lading to mirror this standard.

VAPES – Never thought I would be reporting on VAPE use in the Bits & Pieces.  This month the FMCSA issued a safety advisory for battery-powered portable electronic smoking devices in or around commercial vehicles. The FMCSA wants carriers and drivers to be aware of the potential safety hazards. Particularly, those transporting hazardous materials should be careful when possessing, storing, charging or using any of these devices while loading or unloading.

TOW OPERATIONS – The Colorado Public Utilities Commission has extended its protection of non-consensual tows to include heavy-duty trucks. The regulations will include a strong definition of “non-consensual tow,” reasonable maximum per hour wrecker/rotator fees, prohibited fuel surcharges, strengthened invoicing requirements, a reasonable standard for what is necessary in a tow/recovery, and a provision to address what is referred to as double-billing. Non-consensual tows include tows ordered by law enforcement are included even when the owner or operator of the vehicle consents to a law enforcement official ordering a tow.  Importantly the invoices will have to provide more specific information and will not allow for double billing.

The regulations call for specific information on the invoice, such as the time of dispatch, the time the truck leaves the yard or other staging location, the time the tow truck arrives on scene, the time tow truck leaves the scene, and the time the vehicle is unhooked.

In order to discourage overcharging, the commission retained language that says the towing carrier shall not charge or retain any fees or charges for the services it performs if it is found in violation of state statute or the commission’s rules. This would likely be applied only to the most serious of violations.

The regulations also guard against double-billing by not allowing additional fees for towing a tractor and trailer together.

RECALLS – The NHTSA has announced that another round of manufacturers are recalling trailers due to an issue with Bendix spring valves. More than 9,000 Manac, Polar Tank, Heil and Hyundai trailers are affected in this latest notice, according to National Highway Traffic Safety Administration documents.

On June 8, NHTSA sent out a recall notice regarding an issue with nearly 195,000 Bendix SR-5 trailer spring brake valves. According to NHTSA, brake valves were improperly machined without a radius on the internal check valve seat, causing a delay of application of the spring brakes while parking.

Bendix’s public relations firm reached out to Land Line via email on July 29, and offered their own description of the problem: “Under a combination of a unique set of circumstances, it is possible (though not probable) for an internal leakage to develop in the SR-5 unit, resulting in slow-to-apply spring brakes when parking the trailer.”

On Tuesday, Aug. 9, NHTSA sent out a recall notice with specific makes and models of trailers affected by the recall. Affected trailers include:

• 2016 Manac flatbed trailers
• 2017-2018 Manac van trailers
• 2014-2016 Polar Tank DOT 406 tank trailers
• 2014-2016 Polar Tank DOT 407 tank trailers
• 2014-2016 Polar Tank DOT 412 tank trailers
• 2014-2015 Polar Tank MC 331 tank trailers
• 2014-2016 Polar Tank non-code tank trailers
• 2014-2016 Heil crude trailers
• 2014-2016 Heil dry bulk trailers
• 2014-2016 Heil flatbed trailers
• 2014-2016 Heil petroleum pull trailers
• 2004-2016 Hyundai Translead chassis
• 2004-2016 Hyundai Translead containers
• 2004-2016 Hyundai Translead van reefer trailers
• 2004-2016 Hyundai Translead van trailers

The SR-5 valve is a reservoir-mounted trailer valve that can control four spring brake actuators during parking or emergency applications, a NHTSA safety recall report explains. A trailer will have an audible air leak from the dash mounted park control valve or red gladhand when it is disconnected, prior to decoupling when a slow-to-park situation occurs. This leakage will continue until the trailer reservoirs and spring brake chambers are depleted of air pressure.

For those interested the NHTSA recall number for the original Bendix equipment recall is 16E-045

CASES

 CARGO

As we see more and more transportation procured through truck brokers the cases are mounting on the many issues that plague this form of cargo transport. Different courts are ruling different ways, making it difficult to ascertain what the right course of action is. This month we saw a number of cases on the issue.  For example, the Middle District of Florida denied a motion to dismiss a claim against a transportation entity. The Court held that a Carmack claim would stand against the defendant as there was a reasonable basis to conclude that it held itself out as a carrier, while at the same time concluding that a negligence claim for failure to procure a good carrier would stand if the defendant was a broker.  (Edelbrock v. TT of Naples, Inc., 2016 WL 4157426).  Over in the Eastern District of Michigan the Court held that an insurer who paid a cargo claim on behalf of a broker had no standing to sue a carrier under the Carmack Amendment in the absence of an assignment from the shipper.  (Acuity Insurance Co. v. Nick’s Trucking & Excavating LLC, 2015 WL 4060975).  A similar result was reached in the same Court when the Court granted a motion to dismiss a complaint brought by the broker against the motor carrier, with the Court concluding that the broker lacked standing to sue under the Carmack Amendment.  (United Road Logistics, LLC v. DVM Car Trans, LLC, 2016 WL 4011264).The Southern District of Ohio granted a truck broker’s motion to remand a case against a trucker for a cargo loss to state court on the theory that the claim was under the broker-carrier contract and not the Carmack Amendment. (Total Quality Logistics v. James J. O’Malley, 2016 WL 4051880)

The Eastern District of Michigan denied a request for reconsideration of a prior order granting defendant a limitation of liability under tariff provisions.  The Court concluded that the new arguments which plaintiff made in the reconsideration motion could have been made in the initial motion, precluding them for being considered later.  (Kelly Aerospeace Therma Systems v. ABF Freight Systems, Inc. 2016 WL 4374917)

A trucking company attempted a third party action against a truck broker when the trucker was sued for a cargo loss in the Northern District of California. The Court granted the broker’s motion to dismiss, enforcing the forum selection clause in the broker/carrier contract and concluding that an equitable claim for contribution arose from the contract.  (Global Quality Foods, inc. v. Van Hoekelen Greenhouses, Inc. 2016 WL 429126)

A motor carrier sought to defeat indemnity obligations under a master service agreement based upon Texas’s Oilfield Anti-Indemnity Act. The Southern District in Texas concluded that the master service agreement expressly extended to the sole negligence of the parties and that the services provided by the motor carrier were not a close nexus to drilling or mining.  Finally the Court held that the motor carrier had not proved that the plaintiff’s settlement of the underlying action was unreasonable and that plaintiff established that there was no evidence that it was unreasonable, striking the defendant’s affirmative defenses.  (Catlin Specialty Ins. Co v. L.A. Contractors, Ltd., 2016 WL 4276131)

AUTO

The Eastern District of Kentucky held that evidence of negligent hiring, training, supervision, entrustment and retention would not be admissible when the trucking company had admitted vicarious liability for the actions of the driver.  While the rule in a Kentucky state would be to the contrary the Court held that such a conclusion would violate the federal rules of evidence.  (Martin v. Browning, 2016 WL 4119790)

The Court of Appeals in Texas upheld a jury verdict against a trucking company, concluding that the jury had ample support for imposition of liability not only for negligence but for gross negligence. The Court held that the plaintiff’s experts were credible and fully supported the verdict.  (Greenwood Motor Lines v. Bush, 2016 WL 4385456)

The Court of Appeals in Ohio held that a scheduled driver on a liability policy was not entitled to uninsured coverage when injured in an accident while operating a personal auto.  The Court held that there was no ambiguity in adding a schedule of drivers and that it did not make those drivers insured under the policy for all purposes. (Wetzel v. Auto-Owners Insurance Co., 2016 WL 4262814)

Summary judgment afforded to the insurer of a trailer being operated during an accident was upheld in the 7th Circuit. The Court held that it would not apply a hyper technical interpretation of endorsements addressing who was an insured under the policy. The Court further concluded that the trailer interchange agreement did cover the trailer involved it the accident and the trailer was not being used in the owner’s business.  Finally the Court held that the endorsement did not violate Wisconsin law because it excluded permissive users as the statute was not applicable to the policy which was not issued to a Wisconsin insured. The Court held that filing a certificate of insurance with the state DOT was not the same as delivering a policy in the state.  (Great West Casualty Co. v. Robbins, 2016 WL 43667690

Discovery disputes can turn ugly for some.  The Appellate Division in New York held that FOIA information obtained by counsel was not subject to attorney work product privilege and that imposition of sanctions for destroying electronic records would be appropriate. Sanctions would be limited to a negative inference regarding the lack of records.  (Cioffi v. SM Foods, Inc., 2016 WL 4199347)

A trucking company lost its effort for summary judgement in the Northern District of Alabama when there was limited evidence that one of its trucks forced plaintiff’s motorcycle off the road.  The Court held that there was enough evidence through witness testimony to at least support a question of fact on a negligence claim but not a wantonness claim  (Howze v Western Express, 2016 WL 4180898)

A trucking company lost its efforts to exclude the expert testimony of Brook Rugemer on the topic of the screening policies for hiring contract drivers.  The Court concluded that the expert was qualified to discuss whether the motor carrier failed to properly screen the driver, who was involved in a fatal accident while operating under the influence of alcohol.  (Ramos-Becerra v. Hatfield, 2016 WL 4127387)

A cause of action against a trucker for negligent failure to maintain or properly equip the vehicle was dismissed, along with any claim for wantonness.   However the Middle District in Alabama concluded that a claim for negligent entrustment would continue.  (Trinidad v. Moore, 2016 U.S. Dist. LEXIS 106099)

The Court of Appeals in Indiana upheld a jury verdict of $32 million against a driver and trucking company concluding that it would not substitute its analysis for that of the jury. The accident arose when the truck jack knifed and was lying of the side of the road and was struck an hour later by the plaintiff. The Court held, among other things, that not bifurcating liability and damages was not prejudicial and admitting post remedial measures of the trucking company was not an error. (JB Hunt v. Zak, 2016 Ind. App. LEXIS  300)

Over in the 10th Circuit the Court upheld a verdict in favor of a driver’s accident with a company vehicle, concluding that the evidence supported such a finding. The Court also denied an award of costs for rejection of a settlement demand. The Court held that counsel’s letter that he had authority to make a settlement demand was not the same thing as actually making one, therefore it was not rejected as required under the statute.  (Xiong v. Knight Transportation, 2016 US App LEXIS  13648)

Roadside Inspections.  One trucker argued in the Eastern District of Missouri that roadside inspections were unconstitutional. The Court concluded otherwise finding that there is a substantial governmental interest in regulating trucking and that warrantless inspections facilitate the regulation intent.  (Calzona v. Koster, 2016 WL 4036898)

Notice Prejudice Rule – The Supreme Court of Wyoming had held that  under its state law an insurer must be prejudiced before being entitled to deny coverage for failure to give notice as soon as practicable.  A trucker had been declined coverage by his umbrella insurer because the insurer was not notified of a loss.  (Century Surety Company v. Jim Hipner, 2016 WL 4399921)

Hot enough for you?  We are all in hiding out on the Jersey Shore trying to get away from this brutal heat wave.  Hope you are finding a way to keep cool and enjoy the summer.  Things should be quiet as so many folks head out for vacation. The number of out of office responses to the Bits and Pieces in the summer is astounding.  I wonder if anyone is working these days.

This month we report:

UNIFIED REGISTRATION SYSTEM – For months we have been reporting on the anticipated arrival of the final stage of the new online registration system.    We can stop worrying, at least for a while.  The FMCSA is delaying implementation of the final stage of its new online registration system until early next year. The URS, has been delayed until Jan. 14, 2017, with a new full compliance date of April 14, 2017. To date, the agency has issued 62,000 USDOT numbers, removed 340,000 dormant USDOT numbers from agency databases, and screened 100 percent of operating authority applications for reincarnated carriers.

NATIONAL HIGHWAY TRAFFIC SAFETY REPORT – The NHTSA has reported that more than 35,000 people were killed in motor vehicle traffic-related incidents this past year, a 7.7 percent increase from 2014. NHTSA’s data reveals nine of 10 regions experienced an increase in traffic deaths in 2015. Region 6 – Louisiana, Mississippi, New Mexico, Oklahoma and Texas – had the only decrease (1 percent) in traffic deaths. Region 10 – Alaska, Idaho, Montana, Oregon and Washington – experienced the largest increase at 20 percent. The largest increases by “person type” came from pedestrians and bicyclists at 10 percent and 13 percent respectively. Among crash types the largest increase involved young drivers (15 to 20 years old). Passenger vehicle rollovers went up 5 percent, and crashes involving large trucks were up 4 percent. Vehicle miles traveled in 2015 went up 3.5 percent, an increase of 107.2 billion miles.

MOTOR CARRIER BANKRUPTCIES – Once again we remind you that looking at a motor carrier’s financial reports is critical to understanding its operations and insuring strong risk selection. Avondale Partners reports that in the second quarter, 120 trucking companies ceased operations, with an average fleet size of 17 tractor-trailers.  This is a 70% increase from 2015.  The failures are asserted to be based upon rising fuel prices and weak demand.

TOW COMPANIES – In our continuing effort to keep you advised of issues regarding tow companies, the Connecticut Supreme Court recently held that the state may regulate the fees that towing companies charge for nonconsensual towing and recovery services. The Court held that tow companies can be regulated for services provided both before and after tow, which would include storage fees.  Good for motor carriers and insurers alike.

FMCSA LEADER – T.F. “Scott” Darling has finally been given the title of administrator of the FMCSA having held the spot temporarily for the last two years.  His nomination had been pending since August 5, 2015.

FAST ACT CHANGES – The FMCSA has moved forward to comply with some of its many mandates from the FAST Act. According to FMCSA, the regulations were non-discretionary and did not require the rulemaking process.  The new rules are:

1. Section 5206: Applications for exemptions

Section 5206(a)(3) of the FAST Act resulted in a change to Section 381.300(b) — allowing exemptions for up to 5 years that may be renewed for subsequent periods of up to 5 years.

Section 5206(a)(3) also permits an applicant whose application for exemption has been denied to resubmit the application addressing the reason for denial. As a result, FMCSA added a new Section 381.317 describing this process.

Section 5206(b)(1) made permanent the following three existing exemptions from the 30-minute rest break requirements in Section 395.3(a(3)(ii):

• ready-mixed concrete delivery vehicle,
• transportation of bees, and
• transportation of livestock while the livestock.

2. Section 5507 – Electronic logging device requirements

Section 5507 of the FAST Act provides an exception for motor carriers transporting a motor home or recreation vehicle trailer in a driveaway-towaway operation, as defined in 49 CFR 390.5. Under this provision, a motor carrier could comply with the hours-of-service (HOS) requirements by using either a paper record of duty status form or an electronic logging device.

3. Section 5518 – Covered farm vehicles

FMCSA revised Section 390.39(b)(1) to clarify a mandate that addressed exemptions found in state laws for covered farm vehicles. Exemptions include commercial driver’s licensing (CDL), DOT drug and alcohol testing, medical qualifications, HOS, and vehicle inspections. Such exemptions may not be taken into consideration during federal grants management.

4. Section 5519 – Operators of hi-rail vehicles

For the commercial motor vehicle (CMV) driver of a hi-rail vehicle who is subject to the HOS regulations in 49 CFR Part 395, section 5519 of the FAST Act provides that the maximum on-duty time under Section 395.3 shall not include certain time in transportation to or from a duty assignment.

5. Section 5521 – Ready mix concrete delivery vehicles

Section 5521 of the FAST Act exempts drivers of ready-mixed concrete delivery vehicles from keeping records of duty status if certain criteria are met.

6. Section 5522 – Transportation of construction materials and equipment

The FAST Act amends the definitions for the transportation of construction materials and equipment appearing in the Motor Carrier Safety Improvement Act of 1999, including increasing the distance to a 75 air-mile radius of the normal work reporting location of the driver. The Act also allows a state to establish a different air-mile radius limitation if such limitation is between 50 and 75 air-miles and applies only to movements that take place entirely within the state.

7. Section 5524 –Welding trucks used in the pipeline industry

The FAST Act defines a welding truck used in the pipeline industry as a pick-up style truck, owned by a welder, equipped with a welding rig that is used in the construction or maintenance of pipelines, and that has a gross vehicle weight and combination weight rating and weight of 15,000 pounds or less.

The operator of such a vehicle and the operator’s employer are exempted from any requirement relating to registration as a motor carrier, driver qualifications, driving a CMV, parts and accessories and inspection, repair, and maintenance of CMVs, and HOS of drivers. To reflect this section of the FAST Act, FMCSA added the specific exemptions in each of the parts affected.

8. Section 7208 – Hazardous materials endorsement exemption

The Act allows a state, at its discretion, to waive the requirement for a holder of a Class A CDL to obtain a hazardous materials endorsement to transport 1,000 gallons or less of diesel fuel. A state may waive the requirement if the license holder is 1) acting within the scope of the license holder’s employment as an employee of a custom harvester operation, agrichemical business, farm retail outlet and supplier, or livestock feeder; and 2) is operating a service vehicle that is transporting diesel in a quantity of 3,785 liters (1,000 gallons) or less and that is clearly marked with a “flammable” or a combustible” placard, as appropriate. FMCSA adds a new paragraph (i) to Section 383.3 to reflect this exemption.

If a state exercises this discretion, a driver may still be required to obtain a hazardous materials endorsement if he or she travels to a state that has not opted to waive the requirement.

CSA CHANGES – The FMCSA proposes to develop and implement a demonstration program to decide if preventability determinations on certain types of crashes are effective. The program will have an impact on the motor carriers’ CSA Crash Indicator BASIC.  The pilot program would consider a crash as not preventable if the commercial motor vehicle (CMV) was struck by a motorist who was convicted of one of the following four offenses or a related offense:

• Driving under the influence;
• Driving the wrong direction;
• Striking the CMV in the rear; or
• Striking the CMV while it was legally parked.

In addition, the agency indicated that animal strikes and suicide through a CMV would also be included in the list of possible scenarios to have a crash removed from the SMS. Based on on FMCSA approved decision maker, the review would result in one of three dispositions: not preventable, preventable, or undecided. In the case of undecided, the documentation submitted was inconclusive, and the safety event remains in the SMS data.

CASES:

AUTO:

The trip specific analysis in determining the application of the MCS-90 to a particular accident was accepted by the Supreme Court in Connecticut.  The Court determined that when the accident occurred during a purely intrastate transport recovery would not be had under the endorsement.  Plaintiff’s argument that the transport of truck parts which would ultimately be put in a truck to be used in interstate transport was insufficient to establish interstate transport.  (Martinez v. Empire Fire & Marine Insurance Company, 2016 WL 3615693)

The Court of Appeals in Texas upheld a jury verdict against a driver and his employee which included both actual and exemplary damages. The Court found that the evidence was legally and factually sufficient to support a finding of gross negligence.   While the Court held that the point where the history of log-book violations rises to the level of clear and convincing evidence to support a grossly negligent entrustment finding is very high. They concluded that there was evidence that the driver had a substantial history of driving in excess of the federal driving limits, (2) that the motor carrier knew that history and, therefore, knew that the driver was at risk of driving while fatigued, (3) that the motor carrier was “able to anticipate that an injury would result as a natural and probable consequence of the entrustment,” and (4) that, despite that knowledge, it made the conscious decision to violate its own work place rules. (Rayner v. Dillon, 2016 WL 3797893)

An odd issue was addressed by the Western District in Pennsylvania this month.  There was a coverage issue involving various insurers and defense and indemnity obligations for the trucking company involved in the accident.  One insurer, who elected not to be part of a mediation process, refused to consent to dismissal of the case when it was settled by the other parties at mediation, instead seeking costs.  The Court held that it would dismiss the action and not allow the remaining insurer to seek fees and cost concluding that there was lack of support for a conclusion that the insurer was improperly kept in the case.  (Maxim Crane Works v. Smith Transportation Services, 2016 U.S. Dist. LEXIS 95598)

The District Court in North Carolina agreed that a claim for negligent hiring, supervision and retention would not stand against a motor carrier who had conceded vicarious liability for the acts of the driver.  (Turner v. USA Logistics, 2016 U.S. Dist LEXIS 86106)

CARGO:

The District of New Jersey dismissed, without prejudice, plaintiff’s complaint for compensatory and punitive damages arising from the delay in delivery of Christmas trees which were damaged by the time of delivery.  The Court concluded that all causes of action were completely preempted but allowed plaintiff an opportunity to amend.  (Rising Up Garden Center v. Online Freight Services, Inc., 2016 WL 3546582)

The District in Florida denied a request for a new trial or judgment NOV awarded against the defendant.  The Court held that the evidence supported the conclusion that the broker acted as a carrier allowing the jury verdict to stand.  The defendant’s argument that plaintiff had not established a prima facie case as to the condition of bags of coffee also failed.  The Court held that the coffee was transported in thick burlap bags of consistent weight, color, smell, and marks, concluding that the coffee was distinguishable and recognizable at the point of loading, and therefore qualified as unsealed.  That together with other circumstantial the evidence established good order at origin. (National Union Fire Insurance Co. v. All American Freight, 2016 WL 3787638)

The Western District in North Carolina denied defendant’s motion to transfer venue in a Carmack complaint. The Court held that the Carmack Amendment only allows, but does not mandate, that actions be brought against the carrier alleged to have caused the loss or damage, in the judicial district in which such loss or damage is alleged to have occurred.  Plaintiff’s choice of venue was allowed. (Landstar Ranger v.  Global Experience Specialist, 2016 WL 3636941)

The validity of the arbitration provision in the UPS terms and conditions was considered by the Eastern District of California.  The Court considered the procedural and substantive unconscionability of the program.   The Court held that because it was offered on a “take it or leave it” basis, the agreement was procedurally unconscionable but offset by the lack of surprise. While parts of the terms were substantively provisions regarding claims subject to arbitration, discovery, fees, costs, and remedies were not.  The Court concluded that it was a valid arbitration clause.  (Moule v. UPS, 2016 WL 3648961)

The Middle District of Florida upheld the preemptive effect of the Carmack Amendment.  The Court dismissed plaintiff’s claim for breach of contract and emotional distress, stemming from a loss to goods during transit and storage. Even assuming the parties executed a separate contract for storage, the motor carrier maintained possession of the belongings from the time they left Plaintiff’s Florida residence until they were delivered to her Connecticut residence the shipment was governed exclusively by the Carmack Amendment.   (Lloyd v. All My Sons Moving, 2016 WL 3883195)

The District Court in Massachusetts denied a preliminary injunction but allowed for a trustee process attachment of a potential claim against a motor carrier.  Under Massachusetts law if there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the trustee process over and above any liability insurance shown by the defendant to be available to satisfy the judgment the Court can attach the funds before the claim is litigated. (Jofran Sales v Watkins & Shepard Trucking,   2016 WL 3676140)

Broker Freight Payments.The issue of whether a motor carrier can pursue a shipper for freight charges when the contract with the broker precludes such an action was addressed by the Court in the Eastern District of Michigan.  The Court held that the motor carrier could have waived that right under the contract and that the shipper could be a third party beneficiary of that contract. While questions of fact remained in this case as to the validity of the contract, the legal issues to be considered if the contract overrides the bill of lading are significant for all.  (Drive Logistics, Ltd. V. PBP Logistics, 2016 US DIst Lexis 94392) Read More