9th Circuit Court of Appeals Rejects Appeal to Stop Mexico Trucking in U.S.

Kevin Anderson Regulations, Transportation

Another chapter in the decades old saga over allowing Mexican trucking companies into the U.S. was recently written. This time the 9th Circuit Court of Appeals, sitting en banc (meaning the whole bench heard the case), rejected arguments by trucking union groups over the Federal Motor Carrier Safety Administration’s decision to allow Mexican trucking long-haul companies to come into the U.S. The decision is an obvious blow to trucking companies and workers, though in the long run it may work in favor of the overall economy. For now, barring any additional appeals to the Supreme Court, or other litigation, it seems as if Mexican trucking companies will be allowed to do business in the United States. It also means that retaliatory steps taken by Mexico to punish U.S. producers will end as well. Short History of the Issues  These issues go back over 30 years to a time when the …

Household Goods, Carmack Amendment, and Arbitration Clauses

Kevin Anderson Cargo Liability, Transportation

Arbitration clauses are included in a wide array of contracts spanning most if not all industries. They have an interesting appeal for large companies and parties desiring to control a contractual relationship because they force complaints to be brought in specific forums under specific rules. In addition, many times the cost of entering an arbitration can be prohibitive. Under United States federal law, there is a presumption favoring the enforcement of arbitration clauses. But this general rule has exceptions; notably, there is an exception that touches transportation law. This exception is specific to companies dealing with the transportation of household goods across state lines. Dealing in Household Goods The Carmack Amendment is a uniform policy of liability for the loss or damage that can happen to goods shipped interstate. It typically treats one kind of freight the same as another, but household goods get special attention for a number of …

It Still Happens: Damaged Claims Fail to Mention Carmack Amendment

Kevin Anderson Cargo Liability, Transportation

One of the most common occurrences in transportation law related litigation is for a complaint alleging damaged or lost goods to fail to mention the Carmack Amendment. This happens for a number of reasons, and can work in favor of carriers facing lawsuits over lost or stolen goods. The biggest reason that lawsuits fail to include a claim under the Carmack Amendment is because it is relatively unknown in the legal world. During law school a law student will not learn about the Carmack Amendment, but will learn about other legal principles that should apply in most cases. Those include breach of contract, negligence, bailment, and other laws which typically would apply when goods are lost or get damaged. The problem with these legal principles when applied to the trucking industry is the fact that they are state-based. True, the principles are generally the same across state lines, but each …

Multi-Million Dollar Carmack Amendment Case Winds to a Close

Kevin Anderson Cargo Liability, Transportation

A Carmack Amendment case out of Ohio that could be described as an epic poem is finally (maybe) coming to a close. The storied case, Excel, Inc. v. Southern Refrigerated Transport, Inc., has made its way to district court, the Sixth Circuit Court of Appeals and back over beginning in December of 2007. Now the district court in the case has issued another final ruling, and the case should go away. This case began when a shipper contracted with a broker to have millions of dollars worth of pharmaceuticals shipped from one state to another. En route, the truck was stolen and all the goods were lost. The truck was never recovered, and the goods were considered a total loss. Under the Carmack Amendment the carrier is liable for the full value of goods lost, stolen, or damaged in transit. But there are exceptions to this rule, and that is …

Changes to Drug Testing Coming

Kevin Anderson Employment and Labor, Regulations, Transportation

The Federal Motor Carrier Safety Administration is being asked to speed up the changes coming to the trucking industry regarding drug testing. Several congressmen recently petitioned the agency to begin allowing drug testing using hair as soon as the Department of Health and Human Services establishes guidelines for drug tests using hair. Currently the medium used to test whether a truck driver is using or has recently used drugs is urine. But thanks to a provision in the FAST Act of 2015, another medium, hair, will be allowed going forward. That is just one of many provisions that changed the trucking landscape when it was passed, but it could go a long way to improving the way drug testing takes place. At this point the only thing holding up the testing of hair instead of urine for many companies is the green light from the FMCSA. And they have not …

Federal Motor Carrier Safety Administration Grants Health Exceptions

Kevin Anderson Regulations, Transportation

It was recently reported that the FMCSA will exempt over 90 truck drivers from regulations that would otherwise keep them off the roads. The exemptions were fairly routine, and were actually an extension of current exemptions to the drivers with insulin-treated diabetes mellitus. This is just one of the medical conditions that can keep a driver off the road. Before a driver can qualify for a commercial driver’s license and transport goods from state to state, they must have the physical ability to do so. This physical ability is determined by a doctor, and there are certain standards that must be met before a trucker is passed. In most cases a trucker of reasonable health will not have a problem, but there are cases where a license is denied. Regulations on Driver Health The rules regulating whether a driver qualifies for service can be found in 49 CFR 391.41. The …

Violating Trucking Regulations Gets More Expensive

Kevin Anderson Citations / Violations, Regulations, Transportation

If you or a member of your fleet goes awry of federal regulations, you can plan on paying higher penalties. This change was recently announced by the Federal Motor Carrier Safety Administration and is part of a larger federal scheme designed to get every last penny from fines. This change is happening whether truckers and trucking companies want it to. The changes are not drastic this time. The rise is supposed to track with the rate of inflation as recorded by the White House Office of Management and Budget. The old fines will be increased by about 0.16%, so it should not break the bank of anyone who would be getting a fine anyways, but it is part of a larger discussion about the regulation of the trucking industry in general. Trucking Industry Regulations It is hard to think of another national industry that is regulated more than the trucking …

The Carmack Amendment and Fraud Claims

Kevin Anderson Cargo Liability, Transportation

If you are a trucking company dealing with interstate commerce, then you likely know what the Carmack Amendment is. It is a series of federal laws that establish a uniform system of liability for carriers when the cargo they transport is damaged, or gets lost or stolen. Without it, there would be fifty different laws regarding cargo loss liability across the fifty different states. Because of the uniform system and because it is a federal law, any carrier sued for lost or damaged cargo can remove the lawsuit to federal court under the umbrella of the Carmack Amendment. This removal authority requires a federal judge to take over a case, and in almost all cases dismiss state law claims directly related to the loss or damage to goods shipped interstate. The Carmack Amendment Preempts State Claims This is the scenario that recently presented itself in a federal court in Texas. …

New Federal Laws and Rules to Affect Trucking Industry

Kevin Anderson Regulations, Transportation

Just when you felt like the trucking industry could not be regulated any more, there is a sweeping new law that will affect every trucking company involved in transporting food from one place to another. The new law and its implementing regulations will affect trucking companies in several ways, including holding trucking companies responsible for ensuring that food is safe. The new law is known as the Food Safety Modernization Act, or FSMA. This is a shift from how things have been done in the past. The trucking companies will now be under the jurisdiction of the Food and Drug Administration, and this will not relieve them of the agencies they already fall under, like the Department of Transportation and the Federal Motor Carrier Safety Administration. Key Points for Food Transportation Companies There are several areas that trucking companies involved with transporting food will need to understand better, and become …

Supreme Court Declines Review of Obese Trucker Case

Kevin Anderson Employment and Labor, Transportation

In a recent decision, the Supreme Court declined review of an 8th Circuit case involving a trucker who refused to take a sleep apnea test. The fact the court declined review could mean it substantially agrees with the lower court’s ruling, or that it is waiting for a split in decisions among the several circuits to decide the issue authoritatively. The case that made its way to the Supreme Court only to be denied was over whether a trucking company discriminated against one of its employees for requiring him to take a sleep apnea test as a requirement for working as a driver for the company. The issues involved revolved around the federal law known as the American with Disabilities Act, or ADA. Discrimination and the ADA Federal law prohibits employers from discriminating against a current or potential employee based on their disabilities. But this does not mean employers are …