td 183 Final - Transportation & Logistics Council, Inc.TRANSDIGEST-Volume XVIII, Issue No. 183, May...

TRANSDIGEST Transportation & Logistics Council, Inc.

Published by the TRANSPORTATION & LOGISTICS COUNCIL, INC.

120 Main Street ● Huntington, NY 11743-8001 ● Phone (631) 549-8984 ● Fax (631) 549-8962

Website: wwwTLCouncil.org ● email: [email protected]

George Carl Pezold, Executive Director William J. Augello (1926 – 2006), Founding Director

Raymond A. Selvaggio, General Counsel Stephen W. Beyer, Editor

VOLUME XVIII, ISSUE NO. 183, MAY 2013

TLC’s 39th Annual Conference Photos

Trendset & TransVantage Bankruptcy Update

TIA's "Carrier Selection Framework"

Cargo Theft & Hijacking Reporting Agencies

FreightWatch International Annual Cargo Theft Report

STB Denies UP Petition for HazMat Indemnity

More Q&A’s

AVAILABLE NOW!

Q & A IN PLAIN ENGLISH - BOOK 9

175 ALL-NEW QUESTIONS & ANSWERS!

TRANSDIGEST-Volume XVIII, Issue No. 183, May 2013

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Table of Contents ASSOCIATION NEWS ......................................... 2 TRENDSET BANKRUPTCY ................................. 7 TRANSVANTAGE SOLUTIONS BANKRUPTCY... 8 CLASSIFICATION ............................................. 10 MOTOR ............................................................ 10 OCEAN ............................................................. 11

QUESTIONS & ANSWERS ................................ 11 RAIL ................................................................. 20 SECURITY ........................................................ 20 TAB ................................................................. 21 COUNCIL PUBLICATIONS ............................... 21 ADVERTISE IN THE TRANSDIGEST ................ 22

ASSOCIATION NEWS

TLC’S 39TH ANNUAL CONFERENCE

The Transportation & Logistics Council, Inc.’s 39th Annual Conference in San Diego in conjunction with the TLP&SA was a great success and played to a full house.

Visit http://tlcouncil.org/Presidents_%20Report to view TLC President Reed Tepper’s report on the Conference and we look forward to seeing you March 17-19, 2014 in Nashville!

Here are some photos of the event.


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TRANSPORTATION & LOGISTICS COUNCIL, INC. OFFICERS AND BOARD MEMBERS

CHAIRMAN Bob Hochwarth

Volvo Logistics North America [email protected]

PRESIDENT Reed Tepper Parker Hannifin [email protected]

SECRETARY/TREASURER Nadia Martin Blakeman Transportation [email protected]

Region Regional Directors Assistant Regional Directors

1 Kristen Beshaw

Leading Edge Logistics [email protected]

Chris Ingham Masco [email protected]

2 Keith Mowery

US Cold Storage [email protected]

David Broering NFI Industries [email protected]

3 Marla Wolter

3M [email protected]

Carrie Mercie Schwan’s Global Supply Chain [email protected]

4 Brian Kiel

Nestle [email protected]

Sandra Orr ITW Signode [email protected]

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Douglas L. Arents Rite Hite Corporation [email protected]

Chris Ritzen Milestone AV Technologies [email protected]

6 Phillip Wise

Sysco [email protected]

Cidney Ota Sunkist Growers [email protected]

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Jerrod Slaughter Columbia Sportswear [email protected]

Beth Hitt OHL North America Transportation [email protected]

Past Presidents Steve Broussard, Broussard Logistics, [email protected] John Burke, UniPro Food Service, [email protected] Rob Strouse, The Wooster Brush Company, [email protected] Ron Williams, Williams & Associates, [email protected] Honorary Board Member Clark Van Orman, Sysco, [email protected]


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HOSPITALITY SUITE SPONSORS TLC would like to extend its thanks to the following for their generous donations and sponsorship of

the Hospitality Suite at this year’s 39th Annual Conference:

Associations

Transportation Intermediaries Association

Carriers/Brokers

ABF Freight System, Inc. Johanson Transportation Service National Retail Systems

Vendors

Clovis & Roche Marshall Investigative Group TranSolutions, Inc. Williams & Associates, Inc.

Law Firms

Bensesch, Friedlander, Coplan & Aronoff Booth, LLP Foster, Swift, Collins & Smith, PC Franklin & Prokopik Gallagher Sharp Hanson Bridgett, LLP Looney & Grossman, LLP Marwedel, Minichello & Reeb, P.C. Nicklaus & Associates, P.A. Pezold, Smith, Hirschmann & Selvaggio, LLC Ryley, Carlock & Applewhite Scopelitis, Garvin, Light, Hanson & Feary Stites & Harbison, PLLC Ward, Hocker & Thornton, PLLC

DOOR PRIZE DONORS The following companies generously donated door prizes.

Avalon Risk Management CH Robinson Clovis & Roche Columbia Sportswear Hub Group Johanson Transportation Service Marten Transport Milestone AV Technologies (Chief Brand) Nestle Primus Law Office

Sony (Grand Prize) RiteHite Sunkist Growers Sun-Maid Growers of California TranSolutions, Inc. Transplace Unipro Food Service United States Cold Storage Wooster Brush

We would also like to recognize the generosity of Clark Van Orman from Sysco Corp., who won the grand prize drawing (a Sony 50” TV) and then graciously gave the TV to TLC’s Executive Secretary Diane Smid.

EXHIBITORS Thanks to the following exhibitors for helping make this year's conference an outstanding success:

Burns & McDonnell Cargo Salvage Claims Clovis & Roche

Recovery Management Regiscope Digital Imaging TranSolutions, Inc.


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NEW MEMBER The Transportation & Logistics Council, Inc. would like to welcome the following new members:

Regular Member

Jeff Wood WIKA Instruments 1000 Wiegand Blvd Lawrenceville, GA 30043 [email protected]

TRENDSET BANKRUPTCY

TRENDSET UPDATES 5/7/13 - Court filings continue to provide further information regarding the breadth and depth of

Trendset’s business dealings and possible defaults.

In a motion seeking relief from the bankruptcy automatic stay in order to cancel its contract with Trendset, Elizabeth Arden, Inc. alleges:

Debtor processes between 10,000 and 15,000 payments each day, amounting to hundreds of millions of dollars a month flowing in and out of Debtor’s accounts. Over the course of a year, customers entrust Debtor with making $2.5 billion in freight payments.

* * *

The Debtor processes “upwards of 90,000,000 invoices annually” and is “responsible for payments to thousands of carriers and . . . one hundred plus clients.” Trendset, www.trendsetfap.com/about.aspx (Apr. 24, 2013).

On May 6, 2013 the court granted the Chapter 11 Trustee Katie Goodman’s motion to extend deadline to file creditor lists and mailing matrix for the Debtor to “on or before Monday, May 13, 2013.”

There is a “Meeting of Creditors” scheduled for June 7, 2013 at 10:00 AM at the Donald Stuart Russell Federal Courthouse, 201 Magnolia Street, Spartanburg, SC 29306−2355. The deadline to file a proof of claim for all creditors (except a governmental unit) is 9/5/13 and for a governmental unit it is 10/23/13.

On a somber note, one of Trendset's principals, Mark Selvaggio, 56, passed away (reports are he shot himself) on Thursday evening, May 2, 2013 at his home. He was buried May 6, 2013.

http://mackey.tributes.com/our_obituaries/Mark-Christopher-Selvaggio-95729379

5/9/13 – On May 8, the court granted creditors’ motion to examine Julie Tucker regarding “the Debtor’s business, acts, conduct, property, and liabilities and other matters relating to the bankruptcy estate.” The examination is scheduled to begin May 14, 2013 so as to be able to be completed before Ms. Tucker reports to the Bureau of Prisons to begin serving her sentence relating to her embezzlement from Trendset.

5/10/13 – As per a 5/7/13 filing in related District Court cases, the total claims by creditors against Trendset is $43,750,000.


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5/13/13 – According to the bankruptcy court filing of the list of creditors holding the 20 largest unsecured claims, the largest claim is just under $7 million and they range down to $927k, with the total for these 20 claims equaling $62.5 million.

While the bankruptcy filing stays any actions against Trendset itself, it does not preclude actions against involved individuals and related businesses. As a result, district court suits have been filed naming as defendants: Gary Selvaggio; Mark Selvaggio [now deceased]; Christine Selvaggio; Michael Selvaggio; Patricia Selvaggio; Brown Street Club, LLC; CMS Development Company, LLC; MGS Developments, LLC; Folio Logistics, Inc.; SMS Entertainment Specialties, LLC; and West End Entertainment, LLC.

TRANSVANTAGE SOLUTIONS BANKRUPTCY

TRANSVANTAGE SOLUTIONS, INC. FILES CHAPTER 11 Another freight payment company is in trouble. TransVantage Solutions, Inc. of Branchburg, New

Jersey filed a voluntary petition for Chapter 11 bankruptcy on May 3, 2013 in the U.S. Bankruptcy Court for the District of New Jersey, case number 13-19753. TransVantage also operated as or used the names Freight Traffic Services, FTS Industries and FTS.

According to the petition, the debtor estimates that funds will be available for distribution to unsecured creditors. Its assets are estimated to be $ 71,260,000.00 while its liabilities are estimated to be $41,319,266.72. However, while the largest unsecured creditor, Johnson Controls, Inc. (“JCI”), is listed as having a claim against TransVantage of some $15,000,000, TransVantage attributes $71,000,000 of its total “assets” to an unspecified claim against JCI. If you do the math, that leaves only $260,000 in actual assets absent the claim against JCI, of which $40,000 is in a bank account, $20,000 is office furnishings, computers, etc., and $200,000 of the assets consists of “receivables (approximate amount, some questionable recovery)”.

While we do not yet know the nature of TransVantage’s claim against JCI listed in the bankruptcy petition, it appears that the bankruptcy filing was in response to a suit filed by JCI against TransVantage and its president, Shirley Sooy, by JCI on April 8, 2013 in the Federal District Court for the District of New Jersey.

According to the allegations in JCI’s complaint, it hired TransVantage in the mid-1990s to provide freight auditing and payment services for JCI’s logistics providers, including its trucking and transportation entities. In the beginning of 2013, after JCI found out its transportation providers were not being paid, JCI learned that approximately $17 million of JCI’s funds had not been delivered to its logistics providers by TransVantage.

When an on-site examination of TransVantage was done by Ernst & Young for JCI, “Defendant Sooy admitted to several Ernst & Young employees that a multi-million dollar shortfall or “hole” existed at TransVantage at the time JCI began utilizing TransVantage’s services” (emphasis added). JCI alleges Sooy used JCI funds to try to fill this “hole” in its client fund account from the very beginning, over two decades ago. But rather than decrease the deficit, however, the complaint alleges that “In the intervening years, TransVantage continued to both conceal the deficit and, due to additional fraud and mismanagement of client funds, increase the size of the deficit.”

JCI alleges Sooy would “float” the deficit between clients to avoid detection and commingled its clients’ payment funds in a single account. It was only when JCI began requiring TransVantage to use a JCI controlled account that the “float” was no longer effective and Sooy’s scheme fell apart.


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Once TransVantage filed its bankruptcy petition, JCI’s district court action is automatically stayed.

So, while TransVantage’s Chapter 11 bankruptcy petition states that the “Debtor estimates that funds will be available for distribution to unsecured creditors”, the reality appears to be quite the opposite. In fact, unless there is real substance to the $71 million claim TransVantage says it has against JCI, there will be no money for any unsecured creditors and the Chapter 11 reorganization will likely end up as a Chapter 7 liquidation.

5/9/13 – While the filing of the Chapter 11 petition effectively stops the district court proceedings against TransVantage, it does not stop that proceeding as to Shirley Sooy as a named individual. It is expected that she will file an answer with counterclaims, at which time we should know more about the basis of the $71 million claim against JCI that TransVantage alleges as an asset in its Chapter 11 petition.

In the “Certification in Support of Motion for Appointment of Chapter 11 Trustee”, Shirley Sooy states that:

4. The Chapter 11 bankruptcy was filed when various of the Debtor’s customers filed lawsuits against the Debtor, and one of the customers froze the Debtor’s operating account. This resulted in a situation where the Debtor was unable to continue operations.

5. I believe the Debtor’s business is such that it has a potential to satisfy the claims of the various creditors through a Chapter 11 plan. The Debtor has developed freight payment technology, which if properly administered, marketed and licensed can bring in significant sums of money that can be used to fund a plan of reorganization.

The first meeting of creditors is scheduled for June 20, 2013 at 01:00 PM at the Clarkson S. Fisher Federal Courthouse, 402 East State Street, Room 129, Trenton, NJ 08608−1507. Deadlines to file a proof of claim are that it must be received by the bankruptcy clerk’s office by 9/18/13 for all creditors (except a governmental unit) and for a governmental unit it must be received 180 days from date of order for relief.

5/22/13 – The answer filed by Shirley Sooy on 5/15/13 provides little insight into what happened and no clue as to the nature of the alleged $71 million claim TransVantage has against JCI. What we can ascertain from her answer is that she does admit that she believes the “hole” already existed when JCI contracted with FTS (TransVantage’s predecessor) in the mid-1990s, although she only became aware of the existence of the “hole” in 2010 after her husband passed away and she became involved in the business.

NOTE: A question that should be asked is how does a company avoid becoming a creditor in a bankruptcy case or a plaintiff in civil litigation? It is easy to say to only deal with reputable companies, but most every company appears reputable until it’s too late.

So, how can a shipper that wants to make use of a freight payment or freight audit company prevent the above from happening to them? There are various means. It is possible to utilize freight bill audit services, but retain control of the funds by making the payments directly to the carriers based upon the audit service reports.

Another means of prevention is to monitor the freight payments. A shipper can do this by monitoring the timeliness of the freight payment company’s payments to the carriers. Contact the carrier to find out whether the funds your company sent to the freight payment service are being forwarded directly to the carriers, or they are being held for days or weeks. A few days does not necessarily indicate a problem, but a few weeks does.

Additionally, shippers can and should insist that their freight payment company has a fidelity bond that will cover some or all of any possible loss a shipper might face.


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CLASSIFICATION

FUTURE COMMODITY CLASSIFICATION STANDARDS BOARD (“CCSB”) DOCKETS

Docket 2013-3 Docket 2014-1

Docket Closing Date July 18, 2013 November 14, 2013

Docket Issue Date August 8, 2013 December 12, 2013

CCSB Meeting Date September 23, 2013 January 28, 2014

Dates are as currently scheduled and subject to change. For up-to-date information, go to http://www.nmfta.org.

MOTOR

TIA’S CARRIER SELECTION FRAMEWORK The Transportation Intermediaries Association (“TIA”) has developed a “Carrier Selection

Framework” to help brokers with the process of carrier selection. According to the TIA’s Nancy O’Liddy:

Managing risk when a broker has to contract with carriers is becoming more important every day! With negligent hiring judgments reaching into the tens-of-millions of dollars, a broker must consider protecting themselves in addition to seeking the best rates and service.

TIA’s Carrier Selection Framework is a tool for brokers to employ to reduce the potential of contracting with fraudulent or risky carriers -- and will ultimately serve to protect a broker’s business! The TIA Carrier Selection Framework has been carefully-crafted by our nation’s leading authorities on carrier risk management. TIA’s current Committee includes the broadest range of subject-matter and freight broker experts.

TIA is generously making this helpful tool available to Transportation & Logistics Council members. While specifically directed toward brokers, the information included in the Carrier Selection Framework can be helpful to anyone involved in the process of selecting a carrier. Interested persons should visit http://tianet.mkt5780.com/TIACarrierSelectC1TLC/ to download the document in .pdf format (you must provide some basic background information to obtain the download).

REPORTING CARGO THEFT AND HIJACKING The Corporate Security Director for National Retail Systems Inc., John Tabor, has provided a list of

agencies that are involved in cargo theft and hijacking reporting and investigation for Transportation & Logistics Council members. The list, compiled by FreightWatch International, provides contact information by state for persons who need information or want to report these problems. The list has been attached as an addendum at the end of the TRANSDIGEST.


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OCEAN

TWIC TROUBLES Tens of thousands of Transportation Worker Identification Credentials (“TWIC”) issued in 2008 and

2009 are hitting their five-year expirations, creating a surge in renewals and complaints about delays. In an effort make things easier, by reducing the logjam, the Transportation Security Administration (“TSA”) has created an alternative for those whose TWIC will expire on or before December 31, 2014. Rather than replacing their TWIC with the standard 5-year replacement at a cost of $129.75 and 2 trips to an Enrollment Center, they can obtain a 3-year Extended Expiration Date (“EED”) TWIC at a cost of $60.00 and one trip to the Enrollment Center. In order to be eligible for the EED TWIC, in addition to their current card expiring prior to 12/31/14, they must be a U.S. citizen or U.S. national and their current TWIC must be valid and not revoked.

Visit http://www.twicinformation.com/twicinfo/faqs.jsp for more information.

QUESTIONS & ANSWERS By George Carl Pezold, Esq.

FREIGHT CLAIMS – COST OF TEST TO DETERMINE WHETHER DAMAGED Question: We used our freight forwarder on an import shipment from Germany to USA. Upon

receipt at the warehouse, the crate was severely damaged. As a result, this approximately $350,000 piece of sensitive equipment was damaged. The load was photographed and the bill of lading noted.

The vendor was consulted and it was decided to truck the piece of equipment the nearest facility for testing. The same trucker moved it to the vendor test facility. We could not place this equipment into inventory without inspection and testing by the manufacturer as there would be no way of knowing if the equipment was in working order without testing.

The testing determined the equipment to be in working order. It was recrated and returned.

We filed a claim for the testing which was denied. We appealed that denial on the basis that we took steps to mitigate costs, by sending the product to a U.S. facility rather than sending it to its point of origin overseas. It is important to note that there was no way we could determine if the equipment was functioning without having it tested.

Do we have basis for claim on the testing? What actions could/should we take for remedy?

Answer: From the facts as you have described them, I think you have a valid claim for the costs incurred in testing the equipment. See Freight Claims in Plain English (4th ed. 2009) at Section 7.1.4, where it states:

7.1.4 DUTY TO MITIGATE LOSS

The shipper has a general duty to mitigate its damages and the expenses incurred in mitigation are properly recoverable. Pillsbury Co. v. Illinois Central Gulf R.R., 687 F.2d 241, 245 (8th Cir. 1982); Fraser-Smith Co. v. Chicago, Rock Island & Pacific R.R. Co., 435 F.2d 1396 (8th Cir. 1971); John Morrell & Co. v. Burlington Northern, Inc. 560 F.2d 277 (7th Cir. 1977). To


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hold otherwise would place the shipper in an anomalous situation in that, if it could not recover the costs of a successful mitigation effort, it would lose, no matter what it did.

The cost of such effort is a recoverable item of damages from the carrier, but the steps taken must be reasonable under the circumstances, for if they go beyond the bounds of ordinary prudence, the carrier is not bound to reimburse the shipper. Santiago v. Sea-Land Service, Inc., 366 F.Supp. 1309 (D. Puerto Rico 1973).

Unfortunately, if the carrier refuses to pay your claim, it is likely that your only remedy would be to bring a lawsuit.

FREIGHT CHARGES – LIABILITY WHEN ORIGINAL ORDER SHORT SHIPPED Question: I have a question about a recent short shipped order from a vendor for one of my

customers. We are the third party in this relationship with the consignee. It was a tarped flatbed truckload out of Gurnee, IL destined for O’Fallon, MO. I scheduled the purchase order (“PO”) for pickup as normal on 3/13 with my contacts in shipping. We coordinated the entire order to be picked up at the main location by a designated carrier who would have the driver check in with the PO # as normal. The driver was expecting a full truckload. The shipper proceeded to load him with a much smaller order and provided a matching bill of lading.

He questioned the shipper but was told that he was done loading and to secure the load and go. This didn’t raise a red flag to the shipper apparently, and the driver did not inform me that the load was so light. He took the shipper’s word.

The driver delivered the load the following morning, mentioned it again, but bills were signed and he was on his way. The shipper failed to load much of this order while providing matching paperwork and the consignee and shipper are blaming the driver for not making a bigger issue of the load size.

My contention is that he is only contracted to move the load and did question the shipper while there. He is ultimately not responsible for the correct loading of truckload orders in full at the shipper nor providing accurate paperwork. That is the shipper’s responsibility. The customer in this case wants the carrier and/or my company to cover the extra freight costs incurred. Are there any laws that cover a situation like this?

If I felt it was the fault of myself or the contracted carrier I would agree to the charges but I honestly do not feel that way. I could be mistaken.

Is there any published law that covers this or does the bill of lading cover this?

Answer: From the facts as you have described them, it does not appear that the carrier’s driver was at fault for the “short shipped order” and that the shipper was responsible for failing to ship the full quantity.

I am not aware of any law, regulation or court decisions applicable to this fact situation. Since the shipper apparently prepared the bill of lading, it had knowledge of what it was shipping.

FREIGHT CLAIMS – LOSS & DAMAGE STATISTICS Question: I got your contact information through usa.gov and I have a question. Is there a publicly

available source that tells what the total dollar amount (or overall percentage) of goods damaged in transit is?

Preferably this would be broken out by transport method, but after having searched in vain to find this information, I’ll take whatever I can find.


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Answer: At one time the Interstate Commerce Commission collected loss and damage statistics from regulated motor carriers, but that service was abandoned years ago. I am not aware of any official source for this information, although articles in the trade press occasionally refer to transit losses due to theft, hijacking, etc.

As a best guess, some people have used an estimate of about 1% of the total dollar value of goods shipped by motor carrier that is lost or damaged in transit.

FREIGHT CLAIMS – MEASURE OF DAMAGES FOR LOST PRODUCT Question: Common carrier completely lost one of two pallets it signed for and only wants to pay

‘loss’ liability of tariff cost. Nothing in tariff states if carrier ‘doesn't deliver’ all freight it is considered a liability. It only refers to damage or refused or unable to locate consignee. Is the carrier correct in only paying tariff cost as a liability or should carrier pay the full amount of shipper cost of manufactured product?

Answer: I’m not sure what you are asking but will try to answer.

First, a carrier is liable for goods that are lost or damaged in transit. If the loss or damage occurs while goods are being delivered to a customer the usual measure of damage is the invoice price to the customer - the amount that would have been received if the goods had been delivered in good order and condition.

Carriers may have liability limitations. If the bill of lading has language incorporating the classification or the carrier’s tariffs, and there is a valid and applicable tariff limitation, the carrier can usually limit its liability to the amount stated in the tariff.

FREIGHT CLAIMS – CARRIER OFFSETTING STORAGE CHARGES AGAINST CLAIM Question: The carrier damaged a food grade material tote and requested disposition. The product was

put on-hand with storage charges to begin on 12/05/12 and then a claim was filed for a total loss on 12/10/12. Meanwhile the carrier has declined the claim stating we did not respond to their on-hand notice. Our position is the claim should have been sufficient to advise that this was a total loss. Which circumstance trumps?

Answer: I can understand that the carrier might be able to offset valid tariff storage charges against the claim since it was required to store the goods pending action by the claimant. However, I don’t see how failure to respond to an on-hand notice could be a defense to a valid claim for loss or damage.

FREIGHT CLAIMS – AIRBILL SIGNED WITH NO EXCEPTIONS Question: A damage claim we filed for $800 was denied because the airbill was signed with no

exceptions. However, we stated in our claim and the airbill has a provision for concealed damage. I assume that would allow our claim. Also, we weren’t notified until March (although the letter is dated February 20) of this denial. Is there any appeal process other than Small Claims? Thank you.

Answer: Even though an airbill (or bill of lading) may be signed without exception, carriers are liable for “concealed damage”. I would note that there is an extra burden on the claimant to prove that the goods were actually damaged at the time of delivery, and not afterwards.

Also, with air shipments, there may be short time limits in the airbill or in the carrier’s tariff for filing a notice of claim, and these may be enforceable as a defense to the claim.

In any event, there is no “appeal process”, so if the carrier refused to pay your claim you may need to take legal action.


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FREIGHT CHARGES – OFFSETTING OUTSTANDING FREIGHT CLAIMS Question: I know it is not legal to short pay freight bills to offset outstanding freight claims. Can you

show me where that rule is in writing - is it in 49 CFR or elsewhere?

Answer: There is no statute or regulation that governs whether a shipper can “short pay freight bills to offset outstanding freight claims” and it is frequently done. This is a rather common question and as we have said before:

The obligation of a shipper to pay freight charges and the obligation of a carrier to pay cargo claims are legally independent and involve different legal considerations.

Yes, the shipper should have paid the freight charges and filed a claim in writing for the loss or damage. And, if the claim is proper, the carrier should pay the claim.

However, it is not “illegal” for a shipper (or its representative such as a broker) to withhold or setoff payment of freight charges against a claim for loss or damage. You do, of course, have the right to bring a lawsuit to collect your charges if they are not paid. Beware, then, that there will probably be a counterclaim for the loss or damage.

FREIGHT CLAIMS – CARRIER ASSERTS OTHER CUSTOMERS’ FREIGHT OK Question: The carrier I hired loaded freight for other customers along with my freight.

My product was damaged upon examination. The carrier is refuting this claim because apparently the other customers’ product was all received in good order. I can’t find any language on this. Can you assist, please?

Answer: From the limited information you have provided about the nature of the damage, all I can say is that it is a basic question of fact: were the goods damaged while in the possession of the carrier or not?

The thing to remember is the claimant’s burden of proof: (1) that the shipment was in good order and condition when tendered to the carrier at origin and (2) that it was damaged (or short) at the time of delivery, see Missouri Pacific R.R. Co. v. Elmore & Stahl, 337 U.S. 134 (1964), reh. den., 377 U.S. 948. Once the claimant has established these two elements, the burden then shifts to the carrier to prove that the loss was caused by one of the recognized exceptions to liability such as act of God, act or default of the shipper, etc. AND that the carrier was not negligent. These are factual questions that depend on the specific situations of each shipment. It is clearly NOT a defense that “other customers’ product was all received in good order”.

CARRIERS – OPERATIONAL STANDARDS FOR SHIPPERS TO REVIEW Question: Are there any published safety standards for a shipper to follow when hiring a carrier to

move freight?

Answer: I recently prepared an article on this subject that I think should answer your questions, so I am reprinting it below:

FMCSA SAFETY RATINGS

The Federal Motor Carrier Safety Administration (“FMCSA”) maintains safety status for motor carriers which is shown on the Safety and Fitness Electronic Records (“SAFER”) System http://safer.fmcsa.dot.gov/. Safety ratings can be “Satisfactory”, “Conditional” or “Unsatisfactory”. These safety ratings are defined in the federal regulations, 49 CFR § 385.3, as follows:


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(1) Satisfactory safety rating means that a motor carrier has in place and functioning safety management controls adequate to meet that portion of the safety fitness standard prescribed in § 385.5 (a). Safety management controls are adequate for this purpose if they are appropriate for the size and type of operation of the particular motor carrier.

(2) Conditional safety rating means a motor carrier does not have adequate safety management controls in place to ensure compliance with that portion of the safety fitness standard prescribed in §385.5(a), which could result in occurrences listed in §385.5(a)(1) through (a)(11).

(3) Unsatisfactory safety rating means a motor carrier does not have adequate safety management controls in place to ensure compliance with that portion of the safety fitness standard prescribed in §385.5(a), and this has resulted in occurrences listed in §385.5(a)(1) through (a)(11).

(4) Unrated carrier means that the FMCSA has not assigned a safety rating to the motor carrier.

FMCSA SAFETY MEASUREMENT SYSTEM ("SMS")

In April 2010 the FMCSA announced that it would introduce a new Carrier Safety Measurement System as part of an initiative called Comprehensive Safety Analysis 2010 (“CSA 2010”), which expanded the scope of the agency’s data gathering for motor carriers and for drivers. Subsequently, in December 2012, the agency released a package of “SMS enhancements” based on comments it had received.

Questions have been raised throughout the industry as to whether the availability of SMS data would create an obligation on the part of shippers and brokers to use the information as part of their “due diligence” in selecting carriers. As a result of pressure from a number of motor carrier groups, the FMCSA agreed to post a disclaimer to clarify the intent and use of the performance data. The SMS disclaimer on the FMCSA website reads as follows:

USE OF SMS DATA/INFORMATION

The data in the Safety Measurement System (SMS) is performance data used by the Agency and enforcement community. A symbol, based on that data, indicates that FMCSA may prioritize a motor carrier for further monitoring.

The symbol is not intended to imply any federal safety rating of the carrier pursuant to 49 USC 31144. Readers should not draw conclusions about a carrier’s overall safety condition simply based on the data displayed in this system. Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation’s roadways.

Motor carrier safety ratings are available at http://safer.fmcsa.dot.gov/ and motor carrier licensing and insurance status are available at http://li-public.fmcsa.dot.gov/.

While there are some people that disagree, it should be clear from the FMCSA’s disclaimer that the sole purpose of the data being collected is “to prioritize a motor carrier for further monitoring” by that agency, and not as a basis for the public to determine whether or not to use a particular carrier. Shippers (and brokers) should not need to “second guess” the agency, and should be entitled to rely on the FMCSA’s determination of whether the carrier has a “Satisfactory”, “Conditional” or “Unsatisfactory” rating.

UNRATED CARRIERS

It should be observed that only about 20 percent of the authorized motor carriers in the United States actually have an FMCSA safety rating. There are literally thousands of small or new carriers that have never been audited or rated by the agency. Thus, the question is whether a shipper (or broker) should take


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the risk of using an “unrated” carrier, and about the best advice is to exercise “due diligence” in selecting the carrier.

CARRIER SELECTION - SOME SUGGESTIONS

Shippers typically ask the carrier to provide a copy of its operating authority (as a “common” or “contract” carrier), certificates of insurance for auto BI/PD and cargo liability (showing the shipper as certificate holder), a tax ID number, references, etc. Some shippers subscribe to carrier monitoring services such as Carrier 411, Shipper Shield (ActiveScout), CarrierWatch (TransCore) or SaferWatch.

If you don’t use one of these services it is a good practice to compare the information provided to you by the motor carrier against the information on the FMCSA Licensing & Insurance website and make sure that:

- The USDOT and MC numbers are the same.

- The business address, phone and fax numbers are the same. If not, ask why they are different, AND check other sources such as the phone book.

- The insurance company, address and policy number are the same as shown on the insurance certificate provided by the carrier. If not, ask why they are different, AND check directly with the insurance company listed on the website. (Note: It is a better practice to have the carrier's insurance broker or agent send the certificate to you, rather than get one from the carrier.)

Also, check the carrier's operating authority history:

When was it first issued? Has the authority been repeatedly revoked and reinstated, and if so, why? (Note: Authority will usually be revoked because the carrier has failed to keep the required insurance on file, or if it has an unsatisfactory safety record.)

FREIGHT CLAIMS – WHICH CARRIER LIABLE ON INTERLINE SHIPMENT Question: We had a truckload (“TL”) carrier come into our warehouse and pick up a heavy less-than-

truckload (“LTL”) (22M lbs.) to WI. Also, we gave them 3 pool shipments to be dropped off at a LTL carrier’s terminal in IL. When the LTL carrier went in and offloaded their 3 shipments, they did damage to the material going to WI.

I filed a claim against the TL carrier for the damages claiming they were responsible for all the freight since it was on their trailer at time of damages, and told them to go after the LTL carrier to be reimbursed for the damages. Terms of sale were FOB destination, freight prepaid to destination on the initial load going to WI as well as the pool shipments. Is this correct?

Answer: Yes. Under the Carmack Amendment, 49 USC 14706(a)(1), the “receiving carrier” is liable for loss or damage, regardless of whether the loss occurs while the goods are in its possession or the possession of a connecting carrier. Carmack also provides that if the receiving carrier was not responsible for the loss, but pays the claim, it has a right to recover from the party that caused the loss, see 49 USC 14706(b).

FREIGHT CLAIMS – FOOD PRODUCT OUTSIDE TEMPERATURE RANGE Question: There is a debate going on here regarding the responsibility of a carrier regarding food

product that arrived at our customer’s warehouse outside of the temperature range recommended on the bill of lading. I asked the carrier for a downloaded record of the trailer unit to verify the temperature of the trailer during the transit of 4 days. The download received shows there was no discrepancy in the reefer


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unit, meaning the trailer didn’t compromise the product. However, the carrier’s driver did sign the bill of lading at the time of delivery to our customer and the receivers at the warehouse and noted the product was outside of the temperature range.

Is the carrier liable for this claim based on the signature on the bill of lading? Or does the download of the trailer reefer unit exempt the carrier from the freight claim?

Answer: From your description, I can only say that there is a question of fact as to whether the damage to the shipment occurred while in the possession of the carrier.

Back to basics: With a claim against a common carrier, the claimant has the burden of proving that (1) that the shipment was in good order and condition when tendered to the carrier at origin and (2) that it was damaged at the time of delivery, see Missouri Pacific R.R. Co. v. Elmore & Stahl, 337 U.S. 134 (1964), reh. den., 377 U.S. 948. Once the claimant has established these two elements, the burden then shifts to the carrier to prove that the loss was caused by one of the limited exceptions to liability such as act of God, act or default of the shipper, etc. AND that the carrier was not negligent.

The fact that the consignee and driver noted that the product was off temperature is good evidence of the condition at the time of delivery. However, there are other factual questions, for example:

Where was the damaged product located in the trailer and where was the temperature recorder in relation to the shipment in question? The temperature recorder data is evidence that there was no obvious reefer failure, but does not necessarily prove that some portion of the shipment could not have been subjected to improper temperatures during transit.

What was the temperature of the product when it was tendered to the carrier at origin? You may need to get a statement from the shipper in order to answer this.

FREIGHT CLAIMS – CARRIER DEMANDS SALVAGE PRIOR TO CLAIM PAYMENT Question: I have a general question. Once the carrier acknowledges fault and the claim is close to

resolution, the claimant should receive a check in full before allowing the carrier to pick up the damaged goods, correct? I have a situation where the carrier is trying very hard to pick up the goods before sending us the monies owed; the carrier admitted via email that they will send a check in the full amount, however, they will not do so until they salvage the items first.

Are carriers allowed to say when they will pay in this type of situation? I have learned that the check must be issued before allowing a carrier to pick up the damaged items. Am I correct? And is there a claims law on this subject?

Answer: The only federal regulation governing processing of salvage is found in 49 CFR Part 370:

49 C.F.R. 370.11 Processing of Salvage.

(a) Whenever baggage or material, goods, or other property transported by a carrier subject to the provisions in this part is damaged or alleged to be damaged and is, as a consequence thereof, not delivered or is rejected or refused upon tender thereof to the owner, consignee, or person entitled to receive such property, the carrier, after giving due notice, whenever practicable to do so, to the owner and other parties that may have an interest therein, and unless advised to the contrary after giving such notice, shall undertake to sell or dispose of such property directly or by the employment of a competent salvage agent. The carrier shall only dispose of the property in a manner that will fairly and equally protect the best interests of all persons having an interest therein. The carrier shall make an itemized record sufficient to identify the property involved so as to be able to correlate it to the shipment or transportation


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involved, and claim, if any, filed thereon. The carrier also shall assign to each lot of such property a successive lot number and note that lot number on its record of shipment and claim, if any claim is filed thereon.

(b) Whenever disposition of salvage material or goods shall be made directly to an agent or employee of a carrier or through a salvage agent or company in which the carrier or one or more of its directors, officers, or managers has any interest, financial or otherwise, that carrier's salvage records shall fully reflect the particulars of each such transaction or relationship, or both, as the case may be.

(c) Upon receipt of a claim on a shipment on which salvage has been processed in the manner prescribed in this section, the carrier shall record in its claim file thereon the lot number assigned, the amount of money recovered, if any, from the disposition of such property, and the date of transmittal of such money to the person or persons lawfully entitled to receive the same.

As you can see, this doesn’t really answer your question.

In the situation you have described, either you can salvage the goods and apply the proceeds to reduce the claim, or you can let the carrier take the damaged goods, pay the claim, and then sell the goods and keep the proceeds.

FREIGHT CLAIMS – INCLUSION OF SALES TAX Question: I am new to the claims world and would appreciate your answer to an easy question. When

processing basic less-than-truckload (“LTL”) freight claims or ones against small package carriers, is it legally permissible to include tax in the claim form? I feel that opportunities are being lost by many companies to recoup sales tax losses when they are included in invoices/supporting documents.

Answer: The answer may depend on whether the claimant is the buyer/consignee or the seller/consignor.

If the buyer/consignee had risk of loss in transit and therefore was obligated to pay the seller’s invoice amount, which included the sales tax, it would seem logical that the amount of the invoice (including the sales tax) is a proper measure of damage.

If the seller/consignor had risk of loss in transit, I assume the question is whether it would actually pay any sales tax if the item is lost or destroyed in transit, or just cancel its invoice to the customer, voiding the sale (and the tax). If the seller does have to “collect” and pay the state for the sales tax, there may be some procedure for recovering sales tax on an item that has been lost or destroyed in transit. Perhaps a tax accountant or someone in the state department of taxation could answer this for you.

FREIGHT CLAIMS – TRAILER DAMAGED WHILE BEING DELIVERED TO CUSTOMER Question: I am a semi-trailer dealer, and use a large number of transportation brokers to transport

trailers one-way for my customers that purchase trailers from me. Recently, a broker allowed a carrier to use my trailer for a one way load out and it was “totaled”. As it turns out there was no physical damage insurance and the broker is refusing to pay me. Where do I go for help?

Answer: I’m not sure about all of the facts, but as a general rule, a broker does not have a legal duty to verify whether a carrier has cargo liability insurance (or what it actually covers).

Your claim should be against the motor carrier that damaged your shipment. The carrier has liability for damage it causes to shipments while in its possession - regardless of whether it has cargo insurance that


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covers the loss. Your remedy is to file your claim against the carrier, and if it does not pay your claim you may need to bring a lawsuit against the carrier.

FREIGHT CHARGES – APPLICATION OF FUEL SURCHARGES TO ACCESSORIAL FEES Question: I have recently run into two carriers who are applying a fuel surcharge not only to the

linehaul portion of the invoice but also applying it to accessorial charges such as stopoff charges and waiting time charges.

My question is – Is that illegal or just unethical?

Answer: It is clearly improper to apply fuel surcharges to anything other than the linehaul charge. I don’t believe there is any statute or regulation that would apply, nor do I recall any court decision on point, but I suppose it could be considered a commercial fraud or unfair business practice.

FREIGHT CLAIMS – PARTIAL LOSS Question: We transported 6 UTVs (UTV is a Utility Sport Vehicle) for a customer (the shipper).

While at a stop enroute, the trailer was broken into and 1 UTV was stolen out of the trailer. We delivered the other 5 units to the dealer.

Now the shipper wants reimbursement for the missing unit and the freight charges for the full truck load of units. We and our insurance carrier have acknowledged the claim and are paying for the unit stolen along with 1/6th of the original freight charges. The shipper is demanding to be reimbursed for the full truckload freight bill of a little over $4,460.00 along with the full value for the stolen UTV. Is this legal? They have not paid and will not pay the freight invoice but want carrier to pay them that amount plus the claim of stolen UTV .

Answer: In the case of a partial loss, the claimant is usually entitled to be compensated for the item(s) lost or damaged, plus a pro-rata portion of the freight charges attributable to the lost or damaged items (usually based on weight). This topic is covered in Freight Claims in Plain English (4th ed. 2009) at Section 7.4.7.

BROKERS – NEW BOND REQUIREMENTS Question: My company has both broker authority and freight forwarder authority. I know that we

need to increase our broker surety bond to $75k due to MAP-21. And I know that MAP-21 will now require freight forwarders to obtain a surety bond. But my question is do we need two separate bonds? Or is the one $75k bond sufficient to cover both authorities?

Answer: As usual, the Federal Motor Carrier Safety Administration (“FMCSA”) has not updated or revised its regulations to reflect the recent legislation.

However, it is clear that the legal distinctions between a broker and freight forwarder are very different, see the statutory definitions in 49 USC 13102, so I would assume that separate bonds would be required if you hold both types of operating authority.


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RAIL

STB DENIES RAIL REQUEST FOR SHIPPER INDEMNITY FOR DANGEROUS CARGO The Union Pacific Railroad Company (“UP”) had petitioned the U.S. Surface Transportation Board

(“STB”) to amend its tariff, seeking to require shippers to indemnify the railroad for all liability claims (except those occurring through UP’s negligence or fault) when transporting toxic-by-inhalation (“TIH”) and poisonous-by-inhalation (“PIH”) materials. UP wanted indemnification even where the liability or damage was unrelated to the presence or release of the hazardous materials, including acts of God and acts of third parties.

On Aril 30, 2013 the STB denied UP’s petition by unanimous decision on the basis that UP did not show that the tariff was reasonable. Specifically, it rejected the UP’s requirement that the liability shift through the tariff was justified because damages from TIH and other hazmat releases could exceed billions of dollars, beyond the protection amount the railroad said it secures through liability insurance.

In addition, the STB added that the tariff was overly broad because it covered all liabilities, even those of a small dollar amount. The agency also said that UP's other insurance arguments were not specific to TIHs or PIHs and that its claims to create shipper incentives to reduce risk could be accomplished in a less onerous manner.

The decision was issued in STB Docket No. 35504, Union Pacific Railroad Company - Petition for Declaratory Order and is available on the STB’s website at http://www.stb.dot.gov/decisions/readingroom.nsf/WEBUNID/9201300C7096C27485257B5C0062F704?OpenDocument.

SECURITY

ANNUAL CARGO THEFT REPORT On April 29, FreightWatch International released its 2013 Global Cargo Theft Assessment, an annual

analysis of cargo theft trends.

The report showed that cargo theft rates in Europe increased 24 percent on average from 2011, and were on the rise in Asia as well. Cargo theft rates in North, Central and South America remained consistent with prior years.

FreightWatch said the greatest risk of cargo theft today exists in the U.S., Brazil, Mexico, Russia and South Africa.

The annual report showed that for the third consecutive year in the United States, food and beverages were the product type most often stolen in 2012, accounting for 19 percent of all cargo theft, followed by metals and electronics.

In Mexico, the preferred method for cargo criminals continues to be hijackings, which occurred in 83 percent of all recorded incidents in 2012. Cargo theft is concentrated in several of Mexico’s largest cities because they are centers of industry and distribution hubs for cargo.

To obtain a complimentary report, visit http://www.freightwatchintl.com/intelligencecenter.


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TAB

TRANSPORTATION ARBITRATION BOARD - HELP WANTED The Transportation Arbitration Board (“TAB”) needs your help. Because of job changes and

retirement, the list of TAB arbitrators is very short. Do you know anyone interested in serving as an arbitrator? Education points are awarded each time a person arbitrates a case. Arbitrator candidates should be certified by the Certified Claims Professional Accreditation Council (“CCPAC”).

Also, please encourage your people to use TAB’s services.

Please contact TAB Administrator, Wally C. Dammann, CCP at [email protected] or by phone at (212) 230-2966, or fax at (212) 319-7061, for an application and/or additional information.

TAB provides an alternative means to resolve disputes, so long as both parties agree to be bound by its decision. TAB is jointly sponsored by the Transportation & Logistics Council and the Transportation Loss Prevention and Security Association. TAB has an inexpensive arbitration program for loss & damage claims. The arbitrators are knowledgeable transportation professionals that are selected from carrier and shipper backgrounds.

COUNCIL PUBLICATIONS

NOW AVAILABLE – “Q&A IN PLAIN ENGLISH - BOOK IX” Transportation & Logistics - Q&A in Plain English - Book IX is the ninth in this series of the Council’s

popular reference materials. The new text is a compilation of recent questions submitted to the Council’s “Q&A” forum by shippers, carriers and logistics professionals and published in the TransDigest, and is loaded with informative answers by George Carl Pezold and Raymond A. Selvaggio, two leading transportation attorneys. These are real questions, from business people with a wide range of day-to-day transportation and logistics problems, and the answers are clear, concise and to the point.

Transportation & Logistics - Q&A in Plain English - Book IX is intended to be a useful deskbook, and a refresher and handy reference for experienced transportation and logistics professionals. It will also serve as an indispensable teaching aid for students and newcomers to the transportation and logistics field.

HERE’S WHAT READERS HAVE SAID ABOUT THE EARLIER BOOKS IN THIS SERIES:

“Contains a wealth of practical information and advice...” “A Gold Mine of great stuff...” “It's like having your transportation attorney at your elbow...” “Mandatory reading for our training program...”

Q&A Book IX contains 175 new Questions & Answers and is available in print version (144 pages, soft cover) or on a searchable CD. Prices: T&LC Members $50; Non-Members $60 (plus shipping and handling). Available from Transportation & Logistics Council, online at http://www.tlcouncil.org or by calling (631) 549 - 8984. Major credit cards accepted.


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SHIPPING & RECEIVING IN PLAIN ENGLISH - A “BEST PRACTICES” GUIDE Shipping & Receiving in Plain English is a “best practices” handbook for those involved in purchasing

transportation and logistics services, contracting with carriers, forwarders, brokers and 3PL’s, managing and supervising the shipping and receiving functions, and handling cargo claims. The author, George Carl Pezold, has essentially put together in one place all the things that you need to know when shipping or receiving goods, with tips and suggestions for “best practices” and references to other available information and resources.

ADVERTISE IN THE TRANSDIGEST

TRANSDIGEST ADVERTISING Full page and one-half page ads are now being accepted for the TRANSDIGEST. Reach a highly

selective audience with information on your products and/or services at a reasonable cost. Rates are available for 3, 6 or 12 monthly issues, and include both print and electronic issues. For information contact Diane Smid or Stephen Beyer at (631) 549-8984.

To Save Money with Online Freight Claim Management, please call 480-473-2453 or visit http://www.transolutionsinc.com/moneytoday for more details.


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Freight Claims in Plain English, Fourth Ed. by George Carl Pezold and William J. Augello

"Freight Claims in Plain English" is now available again in this completely

revised and updated Fourth Edition. The text has been expanded to cover many new subjects, recent developments and court decisions affecting transportation in general and claims for loss and damage to cargo in particular, including developments in international ocean and air transportation, intermodal, and cross-border trade with Canada and Mexico.

This Fourth Edition contains extensively revised sections on all aspects of the law

and citations to hundreds of new court decisions. The page numbering has been simplified in order to facilitate finding answers to your questions. As with prior editions, a well organized and detailed table of contents, topical index, and table of

authorities are included, as well as extensive appendices containing valuable resource materials Major topics include: SURFACE CARRIER LIABILITY ● COMMON CARRIER LIABILITY BURDENS OF PROOF ● CARRIER DEFENSES TO LIABILITY LIMITATIONS OF LIABILITY ● DAMAGES TIME LIMITS (SURFACE MODES) ● SPECIFIC CLAIM PROBLEMS AIDS TO CLAIM RECOVERY ● WAREHOUSEMAN'S LIABILITY THE IMPACT OF DEREGULATION ● AIR CARRIER LIABILITY WATER CARRIER LIABILITY ● CANADIAN ANNOTATIONS INTERMODAL AND MULTIMODAL LIABILITY ● MEXICAN ANNOTATIONS BEGINNING AND ENDING OF CARRIER LIABILITY CONTRACTS OF CARRIAGE AND BILLS OF LADING CLAIMS PROCEDURES & ADMINISTRATION LIABILITY OF SURFACE FREIGHT FORWARDERS AND INTERMEDIARIES

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EDUCATIONAL MATERIALS

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Shipping & Receiving in Plain English, A Best Practices Guide (2009), by George Carl Pezold

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Transportation & Logistics - Q&A in Plain English – Complete set of Books I, II and III on CD Disk by George Carl Pezold and William J. Augello (1999 – 2003)

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Transportation & Logistics - Q&A in Plain English – Complete set of Books IV, V and VI on CD Disk by George Carl Pezold and Raymond Selvaggio (2004 – 2007)

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Transportation Insurance in Plain English (1985), by William J. Augello Member 521 $13.00

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