Motor Carrier Hours of Service Final Rule Published

The Federal Motor Carrier Safety Administration (FMCSA) published its much-litigated final rule on hours of service for commercial truckers yesterday. The Final Rule is attached here.

See my post of November 30, 2011 in advance of the Congressional hearing on the latest version of the proposed rule.

As to the Final Rule, the FMCSA decided to keep the 11 hour daily driving maximum in place, rather than a 10 hour limit it initially proposed. The reasoning for abandoning the proposed 10 hour limit is:

"In the absence of compelling scientific evidence demonstrating the safety benefits of a 10-hour driving limit, as opposed to an 11-hour limit, and confronted with strong evidence that an 11-hour limit could well provide higher net benefits, the Agency has concluded that adequate and reasonable grounds under the Administrative Procedures Act for adopting a new regulation on this issue do not exist and that the current driving limit should therefore be allowed to stand for now." (See page 81135 of the Rule).

The Rule also contains various charts indicating the projected costs of the various hours of service options considered. The Agency concluded that the 11 hour rule: "represents a small fraction of one percent of trucking industry revenues and is the cost-equivalent of less than a 3 cent-a-gallon increase in the price of diesel fuel to the long-haul industry."

That an economic cost-benefit won out in the final decision is indicated by this comment on why the originally-proposed 10 hour maximum was rejected: "The 10-hour limit has positive benefits in approximately half the cases, with the 11-hour limit having substantially higher net benefits than the 10-hour limit in most cases. A 10-hour limit, on the other hand might save more lives and prevent more crashes than an 11-hour limit, but at a higher cost." (Also on page 81135).

2010 Transportation Safety Stats Mostly Improve

As a follow up to my post of December 9, 2011 about U.S. Highway fatalities sinking to an all-time low, the NTSB has released transportation fatalities statistics for all modes it covers (Highway, Rail, Marine, Aviation, and Pipeline).

The statistics are attached here as a table and a chart.

Total marine fatalities were down about 10% from 2009, with drops in casualties in recreational boating and commercial fishing.

Aviation deaths in 2010, none of which were from commercial accidents, fell by 13% from 2009.

Pipeline and Rail fatalities both saw increases. Total deaths from Rail increased to 813 in 2010 from 742 in 2009, an increase of over 9%. Transit fatalities are included in that total of 813, and from that mode 253 deaths were from Light, heavy and commuter rail.

Fed Maritime Law Trumps State Wrongful Death Limits, and If You Ever Wondered What One Tooth is Worth . . .

A couple of items today from Maritime law.

First, a Federal Court in Louisiana has determined that a state law that denies a remedy to the heirs of a deceased person in a wrongful death action, must fail in favor of general maritime law. In The Matter of Antill Pipeline Construction, Co., Inc. (E.D. La. 12/5/2011), the Petitioner in a Limitation of Liability Act sought to apply a Louisiana Statute, La. Rev. Stat. sec. 9:2798.4, which prohibits recovery by a deceased's estate when the deceased watercraft operator had a blood alcohol concentration over 0.08% and other conditions. The Court ruled that the Louisiana law's contributory negligence scheme (i.e. a scheme that would prevent recovery if the deceased is found 25% negligent as a result of the BAC level), conflicted with the comparative fault scheme of general maritime law. In general, under "comparative fault" a party is not excluded from recovery even if found to be at fault. Rather, recovery is reduced by the level of fault. In other words, the Louisiana law would work as an improper contributory negligence bar to recovery in a maritime wrongful death case, which is to be governed under comparative negligence as matter of the general maritime law.

Our second matter today, answers the question of how much one tooth is worth. And, apparently the answer is $2,500.00. The U.S. District Court for the Western District of Washington, in Delancy v. U.S. Seafoods, LLC, (W.D. Wash. 12/14/11), awarded a Jones Act claimant $2,500.00 for the loss of one tooth and several weeks of pain after the loss of a tooth after a fall from a ladder by the seaman. The amount awarded was substantially less than the $45,000.00 sought by the seaman.

STB to Determine if Rail Tariff requiring HazMat Indemnity from Shippers is Reasonable

The Surface Transportation Board (STB) announced its decision today to determine if a railroad's requirement of indemnity from shippers for hazardous material liability is reasonable.

The STB has accepted the Petition by the Union Pacific to determine if it is reasonable to include in its tariff, or shipping rates, for hazardous materials shipments, a requirement that the railroad be indemnified from liabilities arising from haz mat incidents caused by the shipper's negligence. The tariff-based indemnity provisions relate to the loading, sealing, and securing the commodity, or the condition of the equipment tendered by the shipper (known in the industry as the packaging). The UP's tariff does not indemnify it from liabilities cause by its own negligence or fault.

Procedurally, this issue is similar to a former ex parte docket item the Board had pending for some time (Docket EP-677). That docket was closed, after significant comment by carrier and shipper interests, in favor of an actual controversy rather than what the Board at the time considered a policy statement in the abstract.

Even though the petition before the Board is the UP's request to consider its tariff imposing indemnity requirements on its shippers, the Board has opened the proceeding to comment from the public, outside of the original parties to the petition. According to the Board's Order, anyone interested in joining the proceeding is to file with the Board by December 27, 2011.

Ultimately, this proceeding picks up where prior docket EP 677 left off to some extent in that the Board now has a live case to decide the reasonableness of rail carriers imposing indemnity obligations on the shippers of hazardous materials.

Occupy Movement to Target West Coast Ports - Port Workers Not On Board

An offshoot of the "Occupy" movement plans an attempt to shut down west coasts port facilities from San Diego to Alaska today, while the Union representing some 15,000 dock workers fails to endorse the protest.

The attached article from CNN, explains the International Longshore and Warehouse Worker's decision not sanction any shutdown.

San Diego port officials also called for no disruption of port operations, stating that the individuals who would be most affected by a work stoppage are among the 99% that the movement claims to champion.

U.S. Highway Fatalities Fall to Lowest Level Recorded

U.S. highway deaths in 2010 fell to the lowest level ever recorded. The attached announcement from the National Highway Traffic Safety Administration (NHTSA) notes 32,885 highway deaths, a reduction from 2009, even though highway miles traveled increased by 46 billion miles.

In explaining the Agency's emphasis on distracted driving and its data-collection efforts to measure it, an interesting survey about attitudes regarding distracted driving was mentioned. For example, three quarters of drivers reporting their willingness to answer cell phone calls on all, most, or some trips. Most drivers also noted their willingness to send a text message while driving, while at the same time reporting that if they were a passenger, they'd feel "very unsafe" if the driver was texting. The data seems to support a classic do as I say not as I do attitude toward texting while driving.

It is certainly laudable that highway fatalities continue to decrease. However, its difficult to feel pleased with only 32,000 deaths per year. The toll from highway accidents is significant, but at least the trend is heading in the right direction.

DOT's LaHood Touts Vessel Designs for U.S. Marine Highway

Secretary of Transportation, Ray LaHood, touts in his latest blog post the Maritime Administration's (MARAD) release of 11 new American Marine Highway Vessel designs.

The vessels meet Department of Defense roll-on/roll-off requirements, and the standardized designs "are offered so American shipbuilders can take advantage of the economies of scale series production offers: a ready pool of suppliers, lower costs for each vessel, and fewer planning variables for the ports along our marine highways." A copy of the full MARAD report is attached here.

The markets assessed for the study leading to the vessel designs were the Atlantic Corridor, the Pacific Corridor, Gulf of Mexico routes, and parts of Southern New England to the ports of New York/New Jersey. These correspond to MARAD Marine Highway routes M-95, M-5, and M-10.