2021 Boot Camp: TRANSPORTATION LAW IN A MULTI-MODAL …
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2021 Boot Camp: TRANSPORTATION LAW IN A MULTI-MODAL WORLD John C. Lane and William B. Pentecost, Jr. Co-chairs The significant growth in the international carriage of containerized goods by two or more different modes of transport, i.e., “Multimodal Transport,” has given rise to myriad legal issues, most commonly presenting as freight claims and casualty litigation. TABLE OF CONTENTS Chapter I. Maritime Law: A Basic Introduction for LandLubbing Lawyers By Dustin M. Paul ………………………………......…………………………... 1 Chapter II. The Uniform Intermodal Interchange & Facilities Access Agreement – The UIIA, Indemnity, and Insurance By John C. Lane ………………………………………………………………… 18 Chapter III. An Introduction to Motor Carrier Regulation – Then and Now By John C. Lane ………………………………………………………………… 29
2021 Boot Camp: TRANSPORTATION LAW IN A MULTI-MODAL …
John C. Lane and William B. Pentecost, Jr.
Co-chairs
The significant growth in the international carriage of
containerized goods by two
or more different modes of transport, i.e., “Multimodal Transport,”
has given rise to
myriad legal issues, most commonly presenting as freight claims and
casualty
litigation.
By Dustin M. Paul ………………………………......…………………………... 1
Chapter II.
The UIIA, Indemnity, and Insurance
By John C. Lane ………………………………………………………………… 18
Chapter III.
By John C. Lane ………………………………………………………………… 29
1
By Dustin M. Paul1
Growing up in Missouri, hours away from the nearest ocean, a small
boy
does not dream of a life as an admiralty lawyer. But our careers
take us in
unexpected directions, and so much of my practice focusses on
maritime law.
But, if you do not know the aft2 from the bow3—fear not, your
career will
probably not require you to learn the difference. But any
transportation lawyer
needs to at least know the basics of maritime law. Even if that
knowledge is only
used to get out of the way and know when to call a Proctor in
Admiralty.4
1 Dustin is a partner at Vandeventer Black, LLP in Norfolk. His
practice focusses on
transportation and commercial litigation.
2 Aft means the stern (or rear) of the ship.
3 Bow means the front of a ship.
4 According to the Maritime Law Association of the United States
“The designation ‘Proctor in
Admiralty’ is of ancient origin and applied to lawyers entitled to
handle maritime litigation. The
word ‘Proctor’ was derived from the Roman word ‘Procurator,’ which
was translated into
English as ‘Proctor’ when the Admiralty Courts were set up in
England in the 13th century with
jurisdiction over disputes within the Royal Navy as well as purely
commercial maritime matters.
The designation was continued in the American colonies and, until
recently, in our federal court
system. Though no longer in official usage, ‘Proctor’ was deemed
appropriate for use in [The
Maritime Law] Association to designate the most distinguished class
of membership for
practicing maritime attorneys. See “About the MLA” at
https://mlaus.org/about-the-mla/.
The first obvious question for any non-maritime practitioner should
be:
“Why is there even a separate maritime law?” The answer stretches
back several
millennia to the Rhodes, and island between mainland Greece and
Turkey. As a
historical matter, commercial shipping and seafaring were one of
the few ways that
nation states interacted. That led to the need for rules that
applied beyond the
borders of an individual state. Around 800 B.C., Rhodes developed a
set of
maritime law that was extremely influential throughout the world.
Emperor
Antoninus (138-161 A.D.) is reported in the Digest of Justinian, as
saying "I,
indeed, am Lord of the world, but the law is lord of the sea. Let
it be judged by
Rhodian Law, prescribed concerning nautical matters, so far as no
one of our laws
is opposed." See William Tetley, Q.C., The General Maritime Law—the
Lex
Martima, 20 Syracuse J. Int'l L. & Com. 105 Spring 1994. The
law is described as
“quite uniform” throughout Europe. And thus, maritime law was
treated as unique.
Indeed, it makes an appearance in the U.S. Constitution. “The
judicial
Power shall extend to all Cases, in Law and Equity, arising under
this Constitution,
the Laws of the United States, and Treaties made, or which shall be
made, under
their Authority;—to all Cases affecting Ambassadors, other public
Ministers and
3
Consuls;—to all Cases of admiralty and maritime Jurisdiction . . .”
U.S.
Constitution, Art. III, §2 (emphasis added). In the United States,
only the federal
government can address through legislation or through a legal
proceeding an in
rem remedy against a vessel itself. As the U.S. Supreme Court has
explained, “[a]
state may not provide a remedy in rem for any cause of action
within the admiralty
jurisdiction.” Red Cross Line v. Atl. Fruit Co., 264 U.S. 109, 124,
44 S. Ct. 274,
277, 68 L. Ed. 582 (1924).
Are there Clear Lines About What Constitutes Maritime Law?
No! For example, the U.S. Supreme Court has noted the difficulty
in
discerning between maritime and non-maritime contracts. Norfolk
Southern
Railway Co. v. Kirby, 543 U.S. 14, 23, 125 S.Ct. 385 (“Our cases do
not draw
clean lines between maritime and non-maritime contracts.”); Kossick
v. United
Fruit Co., 365 U.S. 731, 735, 81 S. Ct. 886, 6 L.Ed.2d 56 (1961)
(“The boundaries
of admiralty jurisdiction over contracts—as opposed to torts or
crimes—being
conceptual rather than spatial, have always been difficult to
draw.”). Maritime law
includes “claims that ‘arise out of maritime contracts or other
inherently maritime
transactions.’” Barna Conshipping, S.L. v. 2,000 Metric Tons, More
or Less, of
Abandoned Steel, 410 F. App'x 716, 722 (4th Cir. 2011) (citation
omitted).
4
So, you have to be wary of running into maritime issues—even on
land.
Indeed, one of the most recent U.S. Supreme Court opinions begins
“This is a
maritime case about a train wreck.” Kirby, 543 U.S. at 18. And the
opposite is
true, just because something occurs on navigable waters does not
mean that
maritime law applies. See, e.g., Exec. Jet Aviation v. City of
Cleveland, 409 U.S.
249, 274, 93 S. Ct. 493, 507 (1972) (holding “no federal admiralty
jurisdiction
over aviation tort claims arising from flights by land-based
aircraft between points
within the continental United States” even if they crash in
navigable waters).
What are Navigable Waters?
Navigable waters often define the scope of admiralty law. As the
Supreme
Court has noted, however, the term has different meanings in
different contexts.
Kaiser Aetna v. United States, 444 U.S. 164, 170-172 (1979).
Different tests and
different meanings apply when a court evaluates whether water is
navigable for
purposes of the Commerce Clause, the Rivers and Harbors
Appropriation Act of
1899, and in determining the jurisdiction of federal courts under
Art. III, § 2 of the
Constitution. Id.
The most often cited definition of navigable waters comes from The
Daniel
Ball, 77 U.S. (10 Wall.) 557, 19 L. Ed. 999 (1870) which
states:
5
Those rivers must be regarded as public navigable rivers in
law
which are navigable in fact. And they are navigable in fact
when they are used, or are susceptible of being used, in
their
ordinary condition, as highways for commerce, over which
trade and travel are or may be conducted in the customary
modes of trade and travel on water. And they constitute
navigable waters of the United States within the meaning of
the
acts of Congress, in contradistinction from the navigable
waters
of the States, when they form in their ordinary condition by
themselves, or by uniting with other waters, a continued
highway over which commerce is or may be carried on with
other States or foreign countries in the customary modes in
which such commerce is conducted by water.
Or as the Second Circuit has more succinctly explained, water is
navigable “if it is
presently used, or is presently capable of being used, as an
interstate highway for
commercial trade or travel in the customary modes of travel on
water.” LeBlanc v.
Cleveland, 198 F.3d 353, 359 (2nd Cir. 1999).
As the Fourth Circuit has explained, maritime law generally extends
to
“waterways capable of use for transportation between the states or
with foreign
nations. A body of water that is confined within a state and does
not form part of
an interstate waterway is not an admiralty concern.” Alford v.
Appalachian Power
Co., 951 F.2d 30, 32 (4th Cir. 1991). A finding of navigability
requires more than
just that some vessels could traverse the water, it requires that
the water could be
used for commercial shipping. Id. Motley v. Hale, 567 F. Supp. 39,
40 (W.D. Va.
1983) (navigable water requires that the body of water be “used for
commercial
6
shipping or that there is a reasonable likelihood that it will be
used for that purpose
in the future.”); Dunham v. DeMaine, 559 F. Supp. 224, 225 (E.D.
Ark. 1983)
(“navigability in admiralty is limited to describing the current
capability of waters
to sustain commercial shipping”).
Beware: The Limitation of Liability Act Can Sink a Case
In the interest of protecting shipping interests and shipowners
from liability,
many nations have historically enacted a limitation of liability
act that applies to
vessels. See Madeline Burke, “Duck and Cover: The Gross Attempts of
Limiting
Liability in the Titanic, Deepwater Horizon, and Table Rock Lake
Accidents” 50 J.
Mar. L. & Com. 379, 381 (October 2019). Faced with a
competitive disadvantage,
the United States enacted its Limitation of Liability Act in
1851.
Under the Limitation of Liability Act, 46 U.S.C. §§ 30501 et seq.,
the owner
of a vessel can—under appropriate circumstances—limit its liability
for injuries or
damage to the value of the post-casualty vessel. In the case of a
catastrophic
accident, that may be absolutely nothing. 46 U.S.C. § 30505(a)
provides that the
liability of a shipowner for any injury from a collision shall not
exceed the value of
the vessel unless the owner has privity or knowledge of the
negligence that caused
the loss. The burden of proof is on the Plaintiff to demonstrate
negligence by the
Defendant or unseaworthiness of the vessel. In re Vulcan Materials
Co., 369 F.
7
Supp. 2d 737, 741 (E.D. Va. 2005). Once negligence or
unseaworthiness is
demonstrated, the burden of proof shifts to the vessel owner to
prove it did not
have knowledge or privity of the cause of the accident. Id. But in
the case of a
navigational error, the burden on the shipowner is “minimal.”
Complaint of
Magnolia Marine Transport Co., Inc., 1986 WL 15674 at *13 (D. Kan.
1986).
The Limitation of Liability Act is intended to protect shipowners
from
liability beyond the value of the vessel when accidents are caused
by navigational
errors of the crew. In re National Shipping Co. of Saudi Arabia, 84
F.Supp.2d 716,
718 (E.D. Va. 2000) (“if the collision resulted from navigational
errors that the
shipowner had no reason to believe were likely to occur, limitation
is granted.”);
Complaint of Armatur, S.A., 710 F. Supp. 390, 398 (D. Puerto
Rico
1988)(“[I]nstantaneous negligence such as navigational error is not
within the
privity and knowledge of the shipowner.”).
So, in the case of a collision by a vessel, a vessel owner may be
able to limit
its liability.
What are the Supplemental Rules for Admiralty?
It is hard to get through law school without at least knowing the
general
outline of the Federal Rules of Civil Procedure. But few law school
students
venture to the end of the rules and learn anything about the
Supplemental Rules for
8
Admiralty. In 1966, the Federal Rules of Civil Procedure were
amended and the
“Supplemental Rules for Certain Admiralty and Maritime Claims” were
added to
“unify the civil and admiralty procedure” and eliminate the then
existing Admiralty
Rules. See Fed. R. of Civ. P. Notes of Advisory Committee on Rule,
Section XII.
The Supplemental Rules are lettered, rather than numbered, and
provide some
unique procedural rules for maritime claims.
What is Rule B?
Rule B “permits a plaintiff to attach an absent defendant’s
property if the
plaintiff has an admiralty or maritime claim in personam.” See
Reibor Int’l, Ltd. v.
Cargo Carriers (KACZ-CO.), Ltd., 759 F.2d 262, 265 (2d Cir. 1985).
Attachment
is a “quasi in rem” proceeding. Quasi in rem process can be used to
attach or
garnish any tangible and intangible property. “Rules B(1) and B(3)
refer to goods,
chattels, debts, credits and effects. The terms ‘goods,’
‘chattels,’ and ‘effects’ have
been interpreted to apply to virtually all tangible property . . .
In addition to
tangible property, service of quasi in rem process can also be used
to reach a
variety of intangible property, such as bank accounts, accounts
receivable, and
other debts owed to the defendant.” See 29-0705 Moore’s Federal
Practice - Civil
§ 705.04. Further, under Rule B, an order of maritime attachment
must issue upon
a minimal prima facie showing provided that the defendant cannot be
“found
within” the district in which the property is sought to be
attached. See
9
Supplemental Rule B. This procedure allows an ex parte pre-judgment
attachment
of property and then eventual collection against the property when
a Defendant—
usually foreign—would not ordinarily be subject to service of
process.
What is Rule C?
Rule C allows an “arrest” of a vessel or other maritime property
subject to a
maritime lien. American courts, by and large, have adopted a
“personification”
theory in which the vessel herself is treated as a party as if it
was the actor causing
tort damage or entering into certain contracts. Salazar v. Atl.
Sun, 881 F.2d 73 (3d
Cir. 1989). It is a legal fiction that treats the vessel as an
entity separate and apart
from the vessel’s owner. Thus, a vessel itself can be sued if there
is a maritime
lien against that vessel.
What is a Maritime Lien?
Maritime liens are an ancient aspect of admiralty law and have
existed for
hundreds of years. See, e.g., The Jefferson, 61 U.S. 393, 400
(1857). Liens can be
created in tort or contract. If the vessel is involved in a
collision or cargo is
damaged aboard the vessel, a lien may be created against the ship
for the loss.
Or they can be created when certain supplies are provided to the
vessel. The
maritime lien was created as a “necessary incident” to the
operation of vessels.
Piedmont & George's Creek Coal Co. v. Seaboard Fisheries Co.,
254 U.S. 1, 9
(1920). The very purpose of a ship is to move from place to place,
and the ship is
10
“peculiarly subject to vicissitudes which would compel abandonment
of vessel or
voyage, unless repairs and supplies were promptly furnished.” Id.
Thus, the lien
was created to allow supplies and other necessaries to be provided
where
contemporaneous payment is not made. Veverica v. Drill Barge
Buccaneer No. 7,
488 F.2d 880, 883 (5th Cir. 1974).
But until 1910, there was a conflicting patchwork of state law and
federal
decisions under the general maritime law that led to uncertainty
about the
availability and enforceability of maritime liens for necessaries
in the United States.
Because of the confusion, Congress passed the Federal Maritime Lien
Act in 1910.
It was subsequently amended by Congress, with the most significant
amendment
occurring in 1971.5 The intention of the 1971 amendments was clear;
Congress
intended to provide a more expansive right to a lien to those who
provide
necessaries to vessels. As the Fifth Circuit explained, “the
legislative history of
these sections [was] to mandate a more liberal application than
that which existed
prior to the 1971 amendments to the Maritime Lien Act.” Atl. &
Gulf Stevedores,
Inc. v. M/V Grand Loyalty, 608 F.2d 197, 201 (5th Cir. 1979). The
intention of the
amendments to the Lien Act was to shift the risk of loss from the
materialmen who
provided necessaries to the owner of vessels. Id. at n.7.
5 The relevant statute was eventually renamed from the “Federal
Maritime Lien Act” to the
Commercial Instruments and Maritime Liens Act (“CIMLA”) during a
recodification process.
11
There are only two requirements to establish a lien under the Lien
Act.
“Under the Federal Maritime Lien Act, a lien arises by operation of
law against a
vessel if there is a supply of necessaries to the vessel and there
is authority to bind
the vessel to the lien.” O.W. BUNKER MALTA Ltd. v. M/V TROGIR,
CV12-
05657R FFMX, 2013 WL 326993 (C.D. Cal. Jan. 29, 2013), aff'd, 2015
WL
1222534 (9th Cir. Mar. 18, 2015). To demonstrate its lien,
Plaintiffs need only to
prove: (1) that they supplied necessaries; and (2) the necessaries
were on order from
someone with authority to bind the vessel. Id.
The maritime lien can be a very powerful tool for collecting debts
involving
ships.
Beware: Maritime Workers are Usually Not Subject to State
Workers
Compensation Law!
“The seaman, while on his vessel, is subject to the
rigorous discipline of the sea and has little opportunity to
appeal to the protection from abuse of power which the
law makes readily available to the landsman. His
complaints to superior officers of unsafe working
conditions not infrequently provoke harsh treatment. He
cannot leave the vessel while at sea. Abandonment of it in
port before his discharge, to avoid unnecessary dangers of
employment, exposes him to the risk of loss of pay and to
the penalties for desertion. In the performance of duty he
is often under the necessity of making quick decisions with
little opportunity or capacity to appraise the relative
safety
of alternative courses of action. Withal, seamen are the
wards of the admiralty, whose traditional policy it has
been to avoid, within reasonable limits, the application of
rules of the common law which would affect them harshly
12
calling.”
Socony-Vacuum Oil Co. v. Smith, 305 US 424, 431-432 (1939).
Land-based workers are subject to state workers compensation law,
which is
usually a no-fault system intended to provide financial support for
anyone injured at
work. In contrast, a “seaman” is subject to a fault-based regime
based upon the
Federal Employers Liability Act (“FELA”) called the Jones Act.6 And
those that
work on the jagged line between the water and the land are subject
to the Longshore
and Harbor Workers Compensation Act (“LHWCA”). 33 U.S.C. §
902.
There is no statutory definition of the term “seaman” in the Jones
Act. The
closest statutory definition of a seaman comes from the LHWCA. The
LHWCA
provides recovery for certain land-based maritime workers, but
explicitly excludes
from its coverage “a master or member of a crew or vessel.” Id.
Because the
LHWCA and the Jones Act are viewed as mutually exclusive, a
“seaman” under
the Jones Act is the same as a “master or member of a crew of any
vessel” under
the LHWCA. See McDermott International Inc. v. Wilander, 498 U.S.
337, 347
(1991) (citing Swanson v. Marra Brothers, Inc., 328 U.S. 1 (1946)
(“Thus it is odd
but true that the key requirement for Jones Act coverage now
appears in another
6 There are also two unique maritime remedies that are also
no-fault recoveries. Maintenance
and Cure requires a shipowner to provide housing and medical care
to an injured seaman while
he recovers. And if a vessel is determined to be “unseaworthy,” a
seaman can recover for his
injuries in tort in what is, in essence, a strict-liability
regime.
13
statute.”)). The distinction between a seaman and an employee under
the LHWCA
is based on the overall status of the worker. See Chandris, Inc. v.
Latsis, 515 U.S.
347, 361 (1995). Therefore, land-based maritime workers, such as
longshoremen,
do not become seaman under the Jones Act because they happen to be
working on
board a vessel when they are injured, and a seaman does not lose
Jones Act
protection when ashore. Id.
The Supreme Court in Chandris, outlined the principles used to
determine
whether a worker qualifies as a seaman under the Jones Act.
Chandris, Inc. v.
Latsis, 515 U.S. 347 (1995). An employee is considered a seaman if
a two prong
test is satisfied: (1) the person’s “duties contribute to the
function of a vessel or the
accomplishment of its mission” and (2) the person has “a
substantial connection to a
vessel in navigation (or to an identifiable group of such vessels)
that is substantial
in terms of both duration and nature.” Chandris at 368. Although
this test has been
refined by subsequent decisions, it has become the accepted
standard to determine
seaman status in the lower courts. See 1 Admiralty & Mar. Law
§§ 6-9 (5th Ed.).
These two prongs essentially deal with two distinct aspects of
being a seaman. The
first prong deals with the type of activities the worker must
perform and the second
deals with the relationship the worker has to the vessel. Id;
Chandris at 350.
The Supreme Court has noted the first prong is “very broad”
and
encompasses all who work at sea in service of a ship. Chandris at
368. Historically,
14
the worker was required to aid in the actual navigation of the
vessel, but this
requirement has been abolished by the Supreme Court. See McDermott
Int'l, Inc. v.
Wilander, 498 U.S. 337, 348 (1991). Now all that is required is the
person “does
the ship’s work.” Id. “The ship’s work” has been interpreted to
cover almost all
responsibilities performed in connection with a ship. See e.g.,
Campbell v. Royal
Caribbean Cruises, Ltd., 2008 WL 6025977 (S.D. Tex. 2008) (both
parties admitted
that a dancer hired to entertain guests on a cruise ship satisfied
the first prong to be
considered a seaman under the Jones Act). Many courts have noted
that this prong
is relatively easy to satisfy and it is rarely the subject of
litigation. See Becker v.
Tidewater Inc., 335 F.3d 367, 387-88 (5th Cir. 2003) (citing
Chandris at 368.)
The second prong—substantial connection to a vessel in
navigation—
focuses heavily on the worker’s overall connection to a vessel and
is often the
contested issue in Jones Act cases. The Supreme Court has explained
that the
purpose behind this requirement is to separate the sea-based
maritime employees
who are entitled to Jones Act protection and those land-based
workers, who fall
under the protection of the LHWCA. See Chandris, at 368. Although
the Court
has specifically warned against classifying a worker as a seaman
based on a
“snapshot” test, no strict time-based definition for “substantial”
has ever been
approved by the Supreme Court. Id. at 371. The Court has merely
stated that a
15
maritime worker who spends only a “small fraction of his working
time on board a
vessel” does not have a substantial connection to a vessel. Id. at
371. This has led
to multiple different interpretations of the substantial connection
prong by lower
courts.
What is COGSA?
The Carriage of Goods by Sea Act (“COGSA”) is the statute that
governs
most claims for damaged cargo aboard a vessel. Its most important
feature is that
COGSA § 4(5)7 provides that a carrier will not “in any event be or
become liable
for any loss or damage to or in connection with the transportation
of goods in an
amount exceeding $500 per package” unless the shipper declares a
higher value on
the goods. The provisions of COGSA will often limit the liability
of marine
terminal operators and other parties involved in maritime
transportation because
the terms of a maritime bill of lading often include a “Himalaya
clause” that
contractually extends COGSA beyond merely cargo aboard a
ship.
Although there may be a great disparity between the $500 per
package
limitation and the actual damage, Courts do not hesitate to apply
the limitation.
See, e.g., St. Paul Travelers Ins. Co. v. M/V Madame Butterfly, 700
F. Supp. 2d
7 COGSA was formerly located at 46 U.S.C. Appx. § 1301. Because of
a recodification that
eliminated the appendix to Title 46, the text of COGSA is now
located in the Notes of 46 U.S.C.
§ 30701.
16
496, 498, 2010 AMC 1299 (S.D.N.Y. 2010) (applying COGSA and
affirming a
$500 limitation of liability on $4,179,938 in damage to a yacht);
Fortis Corporate
Ins. v. M/V Lake Ontario, 2005 AMC 811 (N.D. Ind. 2005)(applying a
terminal
operator’s $500 per package limitation to $1,998,370.22 in damage
to metal coils);
Akiyama Corp. of Am. v. M.V. Hanjin Marseilles, 162 F.3d 571, 572,
1999 AMC
650, (9th Cir. 1998) (applying COGSA through a Himalaya clause and
affirming a
$2,000 ($500 per package) limitation to $1,000,000 in damage to a
printing press);
Royal Ins. Co. v. Sea-Land Serv., 50 F.3d 723, 726, 1995 AMC 1189
(9th Cir.
1995) (applying COGSA and affirming a $500 limitation on $600,000
in damage
to a yacht); Starrag v. Maersk, Inc., 486 F.3d 607, 615, 2007 AMC
1217 (9th Cir.
2007) (affirming a $1500 ($500 per package) limitation on
approximately
$600,000 in damage to aerospace equipment).
Maritime Cases Can Have Special Rights of Appeal
Pursuant to 28 U.S.C. § 1292(a)(3), Circuit Courts have
jurisdiction of
appeals of “[i]nterlocutory decrees of such district courts or the
judges thereof
determining the rights and liabilities of the parties to admiralty
cases.” Section
1292(a)(3) “is an exception to the final judgment rule and
therefore is construed
narrowly.” Wallis v. Princess Cruises, Inc., 306 F.3d 827, 832 (9th
Cir. 2002). The
statute permits appeals only when the order appealed from
determines the parties’
rights and liabilities. Id. Maritime interlocutory appeals
therefore have been
17
limited primarily to lower court decisions that either definitively
decide liability or
impose severe limitations on liability.
Conclusion
There are a lot of unique aspects of maritime law, and a lot of
uncertainty as
to when it applies. A careful practitioner, especially one who
practices other
aspects of transportation law, must always be alert to possible
maritime law issues.
18
The Uniform Intermodal Interchange & Facilities Access
Agreement –
The UIIA, Indemnity, and Insurance
Prepared by John C. Lane, Law Offices of John C. Lane
Adapted from a Presentation to the Through Transport
Mutual Insurance Association, Ltd., on June 14, 2017
Background
We call it the UIIA, because that was once its name – the
Uniform
Intermodal Interchange Agreement. The abbreviation has stuck,
despite the
expansion of the Agreement and, thus its expanded name. The
signatories to the
Agreement are, for the most part, steamship companies, railroads,
Facility
Operators, and Motor Carriers. The capitalized terms are expressly
defined by the
Agreement. In many instances, especially in times of simpler
business models, the
steamship companies were the Providers. The UIIA contains material
rights of
indemnity, and obligations to maintain insurance, which have
governed the
relationships among the Parties (also defined by the Agreement),
and also the
Equipment Owners. The latter are generally not signatories, but are
protected as
third-party beneficiaries of the most vital provisions.
19
management agreements, equipment interchange agreements, and more,
governing
the relationships and responsibilities among the many involved
parties. Those
agreements contain their own Indemnity and Insurance requirements.
Some are
patterned after the UIIA language, while others are different. All
have insurance
requirements intended to cover the various liability and indemnity
obligations of
the parties. Some expressly provide protection for Third Party
Beneficiaries, in
more expressly worded terms than the UIIA. And as to Motor
Carriers’ indemnity
and insurance obligations, some agreements actually refer to and
incorporate the
UIIA obligations.
The importance here is that principles of law that have interpreted
the UIIA
provisions in courts in various States will also be applied to the
interpretation of
the agreements that have developed and are in place in the more
complex business-
model world. So, a discussion of the UIIA provisions, and the
courts’ treatment of
them, is relevant and worthwhile.
Summary of the UIIA Provisions Relating to Indemnity and
Insurance
The Agreement defines the “Provider” as the Party to the Agreement
that
interchanges a Chassis to a Motor Carrier. That could be a
steamship company, a
20
Facility Operator, or as the business has developed, a pool manager
(not defined in
the UIIA). Importantly, the term “Indemnitees” in the Agreement
means the
Provider, Equipment Owner, and/or Facility Operator. The Equipment
Owner may
be a chassis leasing company, or a steamship company or railroad
that has
“beneficial title,” such as under a long-term lease. Note, however,
that a chassis
lessor that is not a Party to the UIIA, is given indemnity rights,
nonetheless, as well
as protection by the Motor Carrier’s insurance coverage, as a
third-party
beneficiary of the UIIA.
The Indemnity provision found at Subsection F.4. is broad. It
requires the
Motor Carrier to –
(without regard to whether the Indemnitees’ liability is
vicarious,
implied in law, or as a result of the fault or negligence of
the
indemnitees), against any and all claims, suits, loss, damage
or
liability, for bodily injury, death, and/or property damage,
including reasonable attorneys fees and costs incurred in the
defense against a claim or suit, or in enforcing subsection F.4 .
.
. caused by or resulting from the Motor Carrier’s: use or
maintenance of the Equipment during an Interchange Period;
and/or presence on the Facility Operator’s premises.
That says a lot. The Motor Carrier must defend and indemnify the
Provider,
Equipment Owner, and/or Facility Operator against any claim that
arises out of the
Motor Carrier’s use or maintenance of a chassis because of an
occurrence during
21
the time the chassis is under an Interchange to the Motor Carrier.
The Indemnitee
is entitled to that protection even if it is at fault or negligent
in causing the
occurrence.
Closely tied to the Indemnity provision are the Insurance
requirements of
Subsection F.6. The motor carrier must maintain commercial auto
insurance
coverage of not less than $1,000,000, Combined Single Limit, and
shall name the
Provider as an additional insured. The extent of the Provider’s
coverage is limited
to the amount of the Indemnity provision, Subsection F.4.
In addition, the Motor Carrier must have attached to its insurance
policy a
Trucker’s Uniform Intermodal Interchange Endorsement, the UIIE-1,
which
confirms that the insurer will cover the Motor Carrier for the UIIA
obligations,
including the Indemnity provision, irrespective of the remaining
provisions of the
policy. This means that every Indemnitee, including an Equipment
Owner-third-
party-beneficiary, can rely on that coverage.
Finally, the UIIA states that it shall be governed and interpreted
by the laws
of the State of Maryland. The intention is that for the sake of
uniformity and
predictability, a dispute being litigated in any State should be
decided on the basis
of Maryland law. We will first look at the holdings of Maryland
law, and then
look to decisions of other States to see how they treat the
UIIA.
22
Maryland Courts’ Treatment of Indemnity
The most-often cited case from Maryland is Mass Transit
Administration v.
CSX Transportation, Inc., 708 A.2d 298 (Md. 1998). This case does
not involve
the UIIA, but does involve an indemnity agreement which the
Maryland Court of
Appeals deemed to be broad enough to require the MTA to indemnify
CSXT for
CSXT’s own negligence. The indemnity provision there required MTA
to
indemnify CSXT for any and all casualty claims, losses, suits,
damages or liability
of any kind, arising out of the “Contract Service under this
Agreement.” It did not
expressly call for indemnifying CSXT for its own negligence (which
negligence
was clear in this case). Notwithstanding, the Maryland Court of
Appeals found
that the “arising out of” language of the Indemnity provision was
sufficiently broad
to encompass an event that only indirectly involved the Contract
Service.
More importantly, the Court found that contracts made by
non-insurers to
indemnify for “any and all casualty losses . . .” are intended to
include indemnity
of CSXT for its own negligence in causing the casualty. The Court
noted that
contractual language purporting to indemnify a party for claims
“arising out of”
certain activity, is to be “interpreted and applied in the same
manner as contracts
made by commercial insurers.”
23
As the Court states, “we have demonstrated that the promise to
indemnify
includes liability for the sole negligence of CSXT . . . it matters
not that MTA is
without fault.”
But the Court went further than that. It noted that the contractual
indemnity
provision was backed by an obligation that MTA maintain
$150,000,000 of
liability insurance, $5,000,000 of which was self-insured.
“Inasmuch as the
indemnification was intended, at a minimum, to serve as liability
insurance for
CSXT . . ., it is appropriate to interpret and apply the
indemnification in the same
manner as liability insurance policies are interpreted and
applied.”
The existence of contracted-for insurance that backs up the
indemnity
provision was crucial to this decision and distinguished the case
from the general
rule in Maryland that an agreement to indemnify a party for its own
negligence
must be clear and unequivocal. That is not unlike the UIIA’s
mixture, in close
association to one another, of the Indemnity provision of
Subsection F.4, and the
Insurance requirement of Subsection F.6. The modern indemnity
provision of the
UIIA expresses the intent to indemnify an “Indemnitee” even for its
own
negligence.
24
Legal Decisions after Mass Transit
Six months after the decision in Mass Transit, the federal court
in
Massachusetts dealt directly with the UIIA, in Mack v. Consolidated
Rail Corp., 24
F.Supp.2d 126 (D. Mass. 1998). Mack worked for R.M. Sullivan
Transportation,
Inc., a trucking company hauling containers in and out of Conrail’s
intermodal
facility in West Springfield. Mack was working for his employer,
Sullivan, when
he allegedly hurt his back when he stepped in a hole inside a
container while
loading the container at a customer’s facility. Sullivan had
obtained the container
from the Conrail facility. Mack sued Conrail under the mistaken
assumption that
Conrail owned the chassis.
Conrail impleaded Sullivan Transportation for Indemnity under the
UIIA, to
which both subscribed. Conrail’s impleader of Sullivan would be
barred by the
Massachusetts worker’s compensation law unless the court found that
the UIIA’s
Indemnity provision constituted an express agreement by Sullivan to
indemnify
Conrail. The Mack court so held, stating that “Sullivan has
expressly contracted to
indemnify Conrail against Sullivan’s negligence.” The case, which
upheld the
application of the UIIA Indemnity provision, relied upon
Massachusetts law alone,
making no mention of the Agreement’s mandate to apply Maryland
law.
25
Lopez v. Louro, was decided by District Judge Martin of the
Southern
District of New York, on January 23, 2002. In Lopez, Judge Martin
extended the
Mass Transit Indemnity-Insurance combination to the UIIA. Oddly,
the court
never identifies the contract as the UIIA, but the context makes it
clear that the
UIIA was before the court, especially the exact quotation of the
UIIA’s provision
for indemnity “during an interchange period.” Salvador Lopez was
injured when
his car was struck by a tractor-trailer consisting of a tractor
owned by Ravan
Transport, Inc., and a container/chassis combination owned by
American President
Lines. Lopez sued Ravan and APL.
APL moved to compel Ravan to indemnify it under the Agreement.
Ravan
opposed, arguing that the accident may have been contributed to by
some (as yet
unknown) negligence on the part of APL. Judge Martin held that
under Mass
Transit, the [UIIA’s] indemnity provision is sufficiently broad to
encompass
indemnity even for any APL negligence. The court specifically noted
the presence
of the Insurance requirement in the Agreement between APL and Ravan
Transport.
Also, Judge Martin noted that the result would be no different
under New
York law, citing Levine v. Shell Oil Co., 321 N.Y.S.2d 81 (N.Y.
1971) (construing
a contract between a service station owner and an oil company to
require
indemnity to the oil company, for its own negligence).
26
Thus, the provisions of the UIIA have found favor in Massachusetts
and
New York, and should be acceptable to the courts in Maryland.
Tennessee joined the group of States agreeing to enforce the UIIA,
in Yang
Ming Transp. Corp. v. Intermodal Cartage Co., 685 F.Supp.2d 771
(W.D. Tenn.
2010). Yang Ming sought indemnity under the UIIA from Intermodal
Cartage, for
Yang Ming’s own negligence. The Tennessee federal court followed
the lead of
Maryland and other States in granting that relief to Yang Ming. It
first had some
hurdles to overcome.
First, the District Court noted that prior to passage of
Tennessee’s anti-
indemnity-in transportation-contracts statute, the State’s common
law favored
contractual indemnity for one’s own negligence. In 2008, the
Tennessee General
Assembly passed § 65-15-108. Subsection (a) of this Section applies
to motor
carriers and states that a contract purporting to have a motor
carrier indemnify
another party for that party’s own negligence, is void and
unenforceable.
However, Subsection (b) states that the Section “shall not apply to
the [UIIA].”
Thus, whether under earlier Tennessee common law or under the
statute, the UIIA
may be enforced to require indemnity to an Indemnitee for its own
negligence.
Issues such as the duration of the Interchange Period, and the
breadth of the
Indemnity provision, were also decided in Yang Ming’s favor.
27
Finally, the Yang Ming court determined, in keeping with Mass
Transit and
other decisions, that the UIIA is more akin to an insurance
contract. The court
found that the parties intended Intermodal Cartage to defend and
indemnify Yang
Ming for Yang Ming’s own negligence, and to pay its attorney fees
in defending
the underlying lawsuit as well as bringing the action to enforce
the indemnity
agreement.
New Jersey joined in support of the UIIA, in Santana v.
Inter-America
Insurance Agency, an unreported decision of the Appellate Division
in 2012. The
court relied upon the UIIE-1 to require the trucker’s insurer to
cover indemnity
obligations not otherwise covered by the trucker’s policy – in this
case, uninsured
motorist’s coverage. The New Jersey court specifically avers that
the Agreement
holds that the laws of Maryland shall govern the enforcement and
interpretation of
the UIIA, “without regard to conflicts of law principles.”
And, in 2017, the federal district court in South Carolina ordered
indemnity
for the equipment provider, relying upon both the UIIA and the
applicable user
agreement, in Flexi-Van Leasing, Inc. v. US Services, LLC. South
Carolina allows
indemnity for a third-party beneficiary not in privity of contract,
only when the
contract is made for the direct benefit of that third party. To get
around that
possible issue, the provider, Hamburg, assigned to Flexi-Van its
right of indemnity
28
under the contract carrier’s trucking contract. The court upheld
both the
assignment and Flexi-Van’s right to sue US Services as Hamburg’s
assignee, for
indemnity.
BUT, not every State is kind to the UIIA. The Court of Appeals of
Texas
ruled on virtually every issue, against the provider, in CGM-CMA
(America), Inc.
v. Empire Truck Lines, Inc., 416 S.W.2d 498 (Tx. App. 2013). This
case had a
prior history of appeals and remands. At issue at this stage was
the UIIA’s current
indemnity provision requiring the trucker to indemnify CGM-CMA for
its own
negligence. The court refused to apply Maryland law, but instead
applied a Texas
statute that bars indemnification of a party for its own
negligence. The court also
disapproved of the opinions of courts in other States treating the
UIIA indemnity
provisions as insurance.
The Take-Away
Issues abound as to whether Maryland law should apply to the
UIIA,
whether indemnity provisions should be treated as insurance, and
whether the
UIIA indemnity provision may be used to the benefit of third-party
beneficiaries
such as equipment owners. Nevertheless, it is clear that in the
newest business
models, the UIIA continues to have vitality. It will continue to be
used to enforce
the rights of Providers, Equipment Owners, and Facility
Operators.
29
An Introduction to Motor Carrier Regulation – Then and Now
John C. Lane
I. Introduction
The modern motor carrier industry has, like all businesses, gone
through
major changes in its history, operationally, technologically, and
by way of
regulation. Its modern-day appearance cannot be fully understood
without looking
at the history of its regulation by Congress. We start with the
Interstate Commerce
Commission.
II. The Interstate Commerce Commission
The trucking industry came under the regulatory control of the
Interstate
Commerce Commission with the passage of the Motor Carrier Act of
1935, Pub. L.
255, August 9, 1935. The ICC had been regulating the railroad
industry since its
creation under the Act to Regulate Commerce of 1887. The modern day
Interstate
Commerce Act, vastly changed from 1935, divides railroad and motor
carrier
regulation into Parts A and B, respectively, of Title 49 United
States Code. Part A,
applying to railroads, commences at 49 U.S.C. § 10101; Part B, the
motor carrier
part, commences at 49 U.S.C. § 10301.
30
Under the ICC, which was an independent agency created by Congress,
a
trucker needed to obtain a certificate of “public convenience and
necessity” from the
ICC in order to engage in interstate trucking. The requisite
process often involved
long and expensive administrative proceedings, leading to receipt
of rights to operate
on specific routes and to carry specific commodities. The Motor
Carrier Act of 1980
ended that regulatory barrier, allowing any entrant to pay an
application fee and
provide proof of required insurance, to obtain a certificate of
common carrier, or
contract carrier, authority. No longer would trucking companies be
limited to the
routes given them by the ICC in the past. Moreover, many new
truckers, some of
which grew very large, were able to enter the interstate motor
carrier business. Many
small existing companies grew into giant motor carrier and
logistics business.
J.B.Hunt Transport, for example, formed in 1961, grew into the 80th
largest trucking
firm in the U.S., by 1983, according to Wikipedia. The rest, as
they say, is history.
III. The Interstate Commerce Commission Termination Act
The ICC’s role in safety regulation continued until January 1,
1996, when the
venerable agency was legislated out of existence by the Interstate
Commerce
Commission Termination Act (ICCTA). ICCTA ended the existence of
the 100
year-old ICC and its regulatory controls over motor carriers. It
also eliminated the
requirement for truckers to file tariffs with government, allowing
them instead to be
provided to shippers on request. Safety features were transferred
to the Department
31
of Transportation, which had been created by Congress in 1966 and
commenced
operation on April 1, 1967. The DOT enabling act combined many
disparate federal
operations, including among them, the FAA (formerly an independent
agency) the
U.S. Coast Guard (which had operated in the Treasury Department
since its founding
on August 4, 1790, eight years before the formal founding of the
U.S. Navy), and
the newly-created National Transportation Safety Board to
investigate catastrophic
transportation accidents and events, and to make recommendations
for future
improvements.
IV. The Rise of the Federal Motor Carrier Safety
Administration
Ultimately, regulation of the trucking industry has for the most
part been
vested in the Federal Motor Carrier Safety Administration, within
the Department
of Transportation.
Vested with those powers the FMCSA inherited the ICC’s authority
over
motor carriers, and added other responsibilities to its roles. It
regulates in the areas
of compatibility of state laws affecting interstate motor carrier
operation (49 CFR
Part 355); insurance requirements (Part387); commercial driver
licensing (Part 383);
and leasing and interchange of vehicles (Part376). Its authority
also includes driver
Hours of Service rules (Part 395); inspection, repair, and
maintenance of commercial
32
vehicles (Part 396); and rules of general applicability of the
Federal Motor Carrier
Safety Regulations (Part 390).
Many motor carriers utilize leased vehicles, including tractors,
trailers, and
intermodal chassis. The regulations in Part 376 make it clear that
a leased
commercial vehicle becomes the full operational responsibility of
the lessee motor
carrier, whether the driver is an employee of the motor carrier or
an independent
contractor, just as if the vehicle were owned by the carrier. See,
esp., 49 CFR §
376.12(c). The motor carrier’s required liability insurance must
apply to its
operation of leased vehicles. 49 CFR § 376.12(j). By incorporation
from 49 CFR
390.21 (marking of commercial motor vehicles), a leased tractor
must be visibly
marked as operated by the motor carrier, and including DOT and MC
numbers.
V. The Advent of Intermodal Carriage
At least half a century ago, ocean carriers began to imagine a link
between
steamships and trucks, allowing a boxed cargo to be offloaded from
a ship and placed
on a truck, to be carried inland. Many different physical arrays
were tried, leading
to the modern, and predominantly uniform design of ocean and
railroad containers,
and intermodal chassis to carry them. Containers are taken off
ships, and off
railroads, and placed upon intermodal chassis specifically designed
to carry them.
33
Truckers then gain access to containers mounted upon chassis,
accept “interchange”
of the containers and chassis, and drive them to their
destinations.
Chassis leasing companies have arisen over the years. Originally
they would
lease large fleets of chassis to steamship companies on long-term
leases. More
recently the steamship companies have eschewed the longstanding
program of
maintaining their fleet of leased chassis. In its place, the
leasing companies have
created chassis terminals and pools, many of them “cooperative”
pools involving
chassis owned by several companies. A new business model emerged in
which
many of the chassis are leased by motor carriers specializing in
intermodal carriage.
A series of private equipment interchange agreements now exist
between lessors and
truckers. And the Uniform Intermodal Interchange and Facilities
Access Agreement
must be subscribed to by every trucker desiring to enter the
intermodal business. On
another side of the business, agreements have also come about
between lessors and
railroads.
It became clear to FMCSA that intermodal chassis are in fact and
law
commercial motor vehicles, which ought to be regulated from a
safety standpoint.
Thus, the Administration now includes intermodal chassis in many of
their
regulatory functions, alongside truck tractors and trailers.
34
Intermodal equipment (containers and chassis) and intermodal
equipment
providers (IEPs) are now regulated under various Parts,
intermingled with motor
carriers. These include requirements of inspection and the
obligation to provide
intermodal equipment that is in safe operating condition (49 CFR
§390.41); and the
responsibilities of drivers and motor carriers operating intermodal
equipment (§
390.42). These regulations are said to preempt state and local laws
regulating
inspection, repair, and maintenance of intermodal equipment (§
390.46).
Significantly important is 49 CFR Part 393, which governs parts and
accessories for
safe operation. This Part, applicable to tractors, trailers, and
intermodal chassis per
49 CFR § 393.1, addresses many aspects of the vehicles themselves,
including
lamps, reflective devices, electrical wiring, brakes, glazing and
window
construction, fuel systems, and coupling devices and towing methods
(Sections
393.9 through 393.71, inclusive, forming Subparts B, C, D, E, and
respectively).
The remaining subparts address miscellaneous parts and accessories,
detailed down
to tires, sleeper berths, mirrors, horns, and even noise levels
inside power units
(Subpart G). Requirements for emergency equipment are found in
Subpart H.
Subpart I calls for protection against shifting and falling cargo,
with specific
requirements according to commodities. Subpart J governs cab and
body
components, wheels, and suspension systems.
VI. Insurance and Hours of Service Regulatory Requirements
35
Part 387 of Title 49 CFR prescribes minimum levels of
financial
responsibility, either through liability insurance or surety bonds,
to be filed with the
FMCSA. A motor carrier may not operate in interstate transportation
without
meeting these requirements. 49 CFR § 387.7. The current levels are
set out in 49
CFR § 387.9. Currently the minimum level of insurance coverage
required for a for-
hire motor carrier of non-hazardous substances (most dry-van
carriers) is $750,000.
That minimum increases to $5,000,000 for carriers of hazardous
substances
transported in cargo tanks, portable tanks, or hopper-type
vehicles. In your writer’s
experience it is not uncommon for even a small motor carrier to
have insurance limits
of $1,000,000. Large carriers commonly have more coverage, often
subject to
significant self-insured retentions.
Insurance policies must also contain a form MCS-90 Endorsement,
the
wording of which is prescribed in 49 CFR § 387.15. This form
confirms the required
coverage, but goes further. The Endorsement amends the policy such
that the insurer
“agrees to pay, within the limits of the [policy], any final
judgment recovered against
the insured for public liability resulting from negligence in the
operation,
maintenance or use of motor vehicles [subject to the Motor Carrier
Act of 1980]
regardless of whether or not each motor vehicle is specifically
described in the policy
and whether or not such negligence occurs on any route or in any
territory authorized
to be served by the insured or elsewhere.” [Emphasis added].
36
The MCS-90 Endorsement assures the public that a judgment will be
paid, to
the limit of the policy, even if coverage is technically
non-existent because a certain
vehicle is not listed on the policy, or an accident occurs outside
an authorized route.
But there is a catch: “The insured agrees to reimburse the company
for any payment
made by the company on account of any accident, claim, or suit
involving a breach
of the terms of the policy, and for any payment the company would
not have been
obligated to make under the provisions of the policy except for the
agreement
contained in this endorsement.”
In other words, the insurance company may have to pay a judgment
that is
actually not covered under the policy, but the insured must pay the
amount back to
the insurer. That is good news for an injured plaintiff, but may
not be good for the
insurer, especially when the insured motor carrier does not have
the financial ability
to make reimbursement. Also, note that the obligation of the
insurance company
arises upon the rendition of a judgment. There is no stated
obligation to defend the
insured in a lawsuit, or to settle the claim out of court.
Drivers’ Hours of Service requirements, codified at 49 CFR § 395.3,
have
continually been a troubling aspect of FMCSA’s regulatory regime.
Motor carriers
and drivers have found them to be unnecessarily confounding and
inconsistent with
safety. The FMCSA has labored to listen to the industry at the same
time it seeks
37
safety on the highways. The complications continue, however, and
the motor
carriers are charged with compliance.
On June 1, 2020, the FMCSA revised drivers’ Hours of Service
regulations
“to provide greater flexibility for drivers without adversely
affecting safety.” The
new HOS regulations are set to go into effect on September 29,
2020. Under the
new regulations a driver may not drive after a period of 14
consecutive hours after
coming on-duty following 10 consecutive hours off-duty. Of that 14
hours on-duty
time, a driver may drive a total of 11 hours. But driving is not
permitted if more
than 8 hours of driving time have passed without at least a
consecutive 30-minute
interruption in driving status. That interruption may be satisfied
either by off-duty,
sleeper berth, or on-duty not driving time, or a combination of
them. It remains to
be seen whether he goals are met and all parties are
satisfied.
VII. 49 U.S.C. § 14704 – a Private Right of Action?
But does any of these regulations confer a private cause of action
upon a
plaintiff injured as a result of a trucking accident? The majority
of the courts
considering the issue have ruled that they do not. Plaintiffs have
relied upon a
provision from ICCTA, codified as 49 U.S.C. § 14704(a) to argue in
favor of
Congressional intent to create a private cause of action. For an
excellent discussion
of the issue, including Supreme Court precedent, see the opinion of
the district court
38
in Elia Leon v. FedEx Ground Package System, Inc., 2016 U.S. Dist.
LEXIS 30281,
313 F.R.D. 615 (D.N.M. 2016). The district court concluded that 49
U.S.C. §
14704(a)(2) does not create a private cause of action for personal
injury plaintiffs
for three “primary reasons.” First, the language does not clearly
include “rights-
creating language” that “explicitly confer[s] a right directly on a
class of persons that
include[s] the plaintiff.” Second, there are “indications of
legislative intent to deny
a personal injury remedy for violations of the FMCSR.” See Cort v.
Ash, 422 U.S.
66, 78 (applying four-factor test to conclude there is no private
cause of action by
corporate stockholders against directors was authorized under the
criminal statute
barring corporate expenditures in connection with presidential
elections). Section
14704 was enacted as part of ICCTA to transfer to the courts
commercial disputes
that had historically been handled in administrative proceedings
before the Interstate
Commerce Commission. Crosby v. Landstar, 2005 U.S. Dist. LEXIS
12008, 2005
WL 1459484 (D. Del. 2005). And in Stewart v. Mitchell Transp., 241
F.Supp.2d
1216, 1220 (D. Ks. 2002), the district court held that “Congress
did intend to create
private rights of actin in Section 14704(a)(2), but not a right of
action for personal
injury.”
Third, the court held, a private right of action in personal injury
cases would
be inconsistent with the underlying purpose of the Motor Carrier
Act. The section
at issue was part of ICCTA, to deregulate the trucking industry and
“shift
39
commercial dispute resolution from the 108-year-old Interstate
Commerce
Commission to courts.” Mitchell Transport, supra, 241 F. Supp.2d at
1220.
Finally, the FedEx court ruled that plaintiff did not have a New
Mexico state
cause of action for violation of a federal regulation. “There is no
state cause of action
allowing a personal injury or wrongful death plaintiff to redress
FMCSR violations.”
Leon v. FedEx Ground, supra, 2016 U.S. Dist. LEXIS 30281, at *38.
Other states
may differ. New York, for example, has adopted the FMCSRs but does
not favor a
cause of action based upon violation of a regulation as opposed to
a statute. The
violation, however, may serve as evidence of negligence, or at
least a duty. Elliott
v. City of New York, 95 N.Y.2d 730, 734, 724 N.Y.S.2d 397, 399
(N.Y. 2001).
VIII. Conclusion
We have taken a view of motor carrier regulation, past and present,
from
30,000 feet in the air. There is much detail we have not covered
but which the
Transportation lawyer will likely need to study and master in the
practice of law in