In Transit

Tuesday, September 2, 2014 In Transit, 2008  
Topic List
From the Chair
Feature Articles
In Transit Editor

Steele Holman


 
Leadership

Trucking Law Leadership Committee


 
Feature Articles
Following September 11, the United States Customs and Border Protection ("CBP") agency was charged with the mission of developing anti-terrorism programs to help secure U.S. borders.[1]  One threat identified by the agency is containers manipulated for the purpose of terrorist attacks.  Approximately 108 million cargo containers ship 90% of the world’s manufactured good each year.[2]  Authorities fear that these containers would be used by terrorists to carry explosive devices, contaminated food, chemical agents or other weapons.[3]  To address this specific threat to border security, the CBP created the Container Security Initiative ("CSI").  The CSI is a multinational program charged with protecting containerized shipping from terrorist manipulation.[4]  The CBP’s authority is unique in that examination of cargo and persons does not require search warrants, probable cause or particularized suspicion.[5]
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Insurers with coverage for trailers involved in California accidents frequently assume that, based upon normal policy language, their trailer coverage is excess to the coverage for the tractor. This situation is where California Insurance Code §11580.9(d) can be a silent killer; silent because some insurers have never heard of it and others are befuddled at the result of its application.  Yet, the statute can mean the insurer will be faced with a subrogation and recovery lawsuit for fees and indemnity from the tractor insurer after the claim has been paid and defended.


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In the recent case of Gadson v. ECO Services of South Carolina, 374 S.C. 171, 648 S.E.2d 585 (2007), the South Carolina Supreme Court refused to relax the requirements for recovery under a theory of “negligent entrustment” of a vehicle to an intoxicated person and rejected a lower court’s adoption of § 308 of the Restatement (Second) of Torts.


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Although the Federal Motor Carrier Safety Administration (FMCSA) has not traditionally used historical data to penalize motor carriers either by adverse safety ratings or civil penalties, changes in how the agency uses such information now pose significant problems for motor carriers.  

 

The FMCSA does not assign safety ratings without a compliance review, but it has long used a motor carrier’s so-called performance history data as a measure of a company’s safety status.  This data consists of the results of roadside inspections, moving violation history, violations discovered during compliance reviews, driver’s license information, and accidents. 


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Would you believe that more than 15 transportation agencies, organizations, research groups, motor coach companies and motor carriers all got together to pronounce the “conventional wisdom” of the transportation industry?. . . [i]

Probably not.  Unless you already know what CTBSSP stands for.


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Failing to take immediate action to protect electronic data following an accident not only can adversely impact a carrier’s defense but also can result in spoliation of evidence claims and sanctions by the court.  Increasingly, plaintiffs are seeking sanctions against trucking companies based upon failure to preserve all evidence potentially relevant to the lawsuit.  Recent cases show that courts are now addressing the issue of sanctions based on the failure to preserve data from technological devices.


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The Severe Shortage of Drivers

One of the most significant challenges facing the trucking industry today is the shortage of drivers.  The shortage has become a limiting factor in the operations of many companies.  The segment of the trucking industry that is most affected by this shortage is long-haul operations.  It is estimated that there are 1.3 million long-haul truck drivers in the United States.  However, this amount is insufficient to address current needs.  According to the American Trucking Associations (ATA), the shortage of drivers nationwide today is approaching 20,000.  With additional demands on the transportation industry created by economic growth, the number of new driver positions is projected to increase to 320,000 within the next ten years. 


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On December 17, 2007, the U.S. Department of Transportation's Federal Motor Carrier Safety Administration ("FMCSA") announced an Interim Final Rule ("IFR")[i] reinstating the 2005 Hours-of-Service ("HOS") Regulations vacated in July 2007 by the U.S. Court of Appeals for the District of Columbia Circuit.[ii] The IFR sets forth the regulations that will govern daily driving time and weekly recovery periods. Specifically, the two HOS provisions that are the subject of the IFR allows long-haul commercial drivers of property commercial motor vehicle drivers up to 11 hours of driving time within a 14-hour, non-extendable window from the start of the workday, following 10 consecutive hours off duty ("11-hour rule").
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The concept of using indemnity language to limit risk is neither novel, nor prohibited – unless your motor carrier contract was drafted in Virginia, West Virginia, Indiana, Nebraska, North Carolina, South Carolina, Texas, Oklahoma or Maryland, and seeks to shift all liability for tort damages caused by your sole or willful negligence to the other party to the contract.
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Saullo v. Douglas, 957 So. 2d 80 (Fla. Ct. App. 2007)

 

A recent Florida case has added a new arrow to the motor carrier’s quiver of defenses against presumptive liability when a placarded vehicle wrecks while not operating “in the business of the carrier.”  Saullo v. Douglas, 957 So. 2d 80 (Fla. Dist. Ct. 2007).

Most jurisdictions considering the issue have held that a leased truck displaying a carrier’s placard is presumptively under the control of that carrier due to the federal regulation lease language in 49 C.F.R § 376.12
[1], making the carrier vicariously liable for the wrongful acts of the driver even if the driver is not operating “in the business of the carrier.” 


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