I can only assume that with the unexpected balmy weather in most parts of the country this month that focus has turned to other matters as there is not much happening in the industry.  Perhaps everyone is just out enjoying the sunshine.

I look forward to being part of the IMUA Transportation Seminar on April 3rd.  If you are interested and have not yet signed up, you can view the seminar registration at www.imua.org.  If you can’t make that, I look forward to seeing many of you again at the annual meeting in May.

We are excited to announce a new scheduled reports feature that is available to our Premium Subscribers.  This enhancement will allow you to customize the PDF version of the Submission Report™ and have it automatically e-mailed to you for any motor carrier on whatever frequency you choose.  For complete information about what is included, please feel free to e-mail Tiana Cain or call her at 212-244-6575 ext. 122.  You can also download a copy of the User Guide, which has been updated to include all the information about the new scheduled reports feature.

This month we report:

ANTI-INDEMNITY CLAUSES – Another state takes the plunge and invalidates shipper contracts which require a motor carrier to indemnify a shipper for all third party losses, even when the shipper is at fault. This month South Dakota joined the bandwagon, making it the 31st state to do so.  Alabama has introduced similar legislation and will hopefully be joining the majority rule soon.

NAFTA – The surface trade between the U.S. Canada and Mexico has increased by 14.3 percent to a record $904 billion, according to DOT statistics for 2011. That is the third largest year to year increase since 1994 when NAFTA was implemented.  In other NAFATA related news, the FMCSA is seeking more Mexican carriers to join the cross border program. The lack of interest from the Mexican carriers will result in a further delay in the border opening as there must be 4100 moves across the border in the 3 year pilot program for the DOT to move forward with its agenda to open the border.

FREIGHT VOLUME – The amount of freight carried by the for-hire transportation industry fell 3.6 percent in January, declining after five consecutive monthly increases, according to the U.S. Department of Transportation’s Bureau of Transportation Statistics.  But everything is relative as it all depends on how you look at it. Shipments in January 2012 were still at the second highest level since July 2008.

HIGHWAY BILL – The Senate has passed its version of the newest highway bill known as MAP-21.  The bill contains steps to address the need for increased safe truck parking, and also has a number of provisions further regulating freight brokerage operations, including an increase in the amount of the bond brokers are required to have, jumping the bond from $10,000 to $100,000.

OWNER-OPERATORS – Bills have been introduced in New York and New Jersey which would require port and package delivery companies to use only employees, preventing the use of owner-operators.  This will be a hotly disputed bill as the so called “Teamster Bill” will be fought by many who use owner-operators in these venues.

CSA UPDATE – The FMCSA has reported that it will delay its plans to implement a program process that would have allowed carriers to seek an accountability review of crashes that were used to determine their CSA scores.   FMCSA Administrator Anne Ferro informed a group of bus and truck trade group executives at a recent meeting that the change would be delayed “until further notice.”

CASES

AUTO:

The Court of Appeals in California held that the MCS-90 applies even when a suit is brought in subrogation by another insurer.  In this action, an injured party recovered under its own uninsured motorist coverage when the motor carrier was found to have no insurance.  The subrogating insurer presented a claim under the trucker’s MCS 90 and was permitted to recover.  (Global Hawk Insurance Co. v. Century National Ins. Co., 2012 WL 639716)

A motor carrier was held to be the direct employer of a driver who was killed while working on the vehicle. The court ruled that there was no need to consider the driver a statutory employee when he was actually a direct employee under state law. This ruling was based upon the fact that the tractor was leased by the owner operator from an affiliate of the motor carrier and then leased back to carrier and all work was done under the direction of the motor carrier.  (American Road Line v. Worker’s Compensation Appeal Board, 2012 WL 581101)

A pro se plaintiff was unsuccessful in his attempts to have a Federal Court review his suit against an insurer and a trucking company for fraud. The plaintiff, a truck driver, had already litigated and lost his claim in state court that his was entitled to more than the $60,000 UM coverage purchased by the trucker.  (Bedard v. National Casualty Insurance Co., 2012 WL 602338)

CARGO:

Although the court was addressing damages in the context of a default judgment and not a litigated case, the District Court in California still found that a pro se plaintiff was entitled to treble damages for the loss of her household goods.  Plaintiff alleged damages under RICO for claims that the motor carrier lured customers with low prices and then refused delivery without payment of increased charges to the carrier.  (Savage v. MTF Relocation, 2012 WL 822954)

In another suit involving the alleged wrongful holding of household goods destined for transport from Nevada to Hawaii, the Supreme Court of Nevada held that the plaintiff could proceed to assert damages for consequential losses which were reasonable foreseeable, but did not allow claims for unjust enrichment or conversion.  Finally the court held that as there were questions of fact as to whether an entity was a carrier or broker, it was premature to dismiss the state law claims, even when the plaintiff only alleged that the party was a carrier. (Rhodes v.  Designer Distribution Services, 2012 WL 642434)

When a shipper used a broker whose standard terms and conditions stated that it might use carriers with a limitation of liability that was not enough to establish notice under the Carmack. The rail carrier was required to show that it gave the shipper an opportunity to declare a higher value, required under Carmack.  The Northern District in Illinois also held that Carmack would apply to a shipment from Mexico when there was a second bill of lading issued in the U.S.  (Siemens Transformadoes v. Soo Line Railroad Co., 2012 WL 774937)

In a 33 page decision, the District Court in Maryland considered a claim for damages suffered when animal trophies were misplaced by a carrier for months following the plaintiffs’ safari.  The Court held that the international forwarder would not be liable for the actions of downstream parties as it was not a bailee of the goods.  The court also held that as to the actual carrier, negligence in handling and storing the goods was not preempted by the Airlines Deregulation Act and the action could continue under federal common law.  The court also held that the measure of damages to items like these required consideration of the whole trip and that replacement cost – meaning a whole new safari – could possibly be the measure of damages.  (Danner v. International Freight Systems of Washington, LLC, 2012 WL 672984)

Abrogating a prior holding, the Appellate Division in New York held that you could sue a Canadian trucking company in New York simply be mailing the suit to Canada. The court held that the Hague rules were complied with as Canada recognized service by mail.  (New York State Thruway Authority v. Fenech, 938 NYS 2d 654)

Happy Spring.