Wednesday, June 26, 2013
The USDOT's National Freight Advisory Committee held its inaugural meeting yesterday in Washington. The Committee was created to provide advice and recommendations to the DOT Secretary on matters involving freight transportation and the implementation of the MAP-21 legislation (Moving Ahead for Progress in the 21st Century Act), 23 USC Sec. 101 et seq. According to the Committee's Charter, the main topics the Committee is to provide assistance and advice to DOT are: 1. Development of a National Freight Strategic Plan; 2. Establishment of a National Freight Network; 3. Strategies to assist States in developing State Freight Advisory Committees and State Freight Plans; 4. Development of measures of the condition, safety, and performance of the freight network, and 5. Development of freight transportation investment, data, and planning tools. The Committee's website link, is attached here. Included on the site is the membership of the Committee, its Charter, and the agenda for the first meeting.
Tuesday, June 18, 2013
Today the Federal Railroad Administration announced the Rail Crossing Locator iOS app, available for free from the Apple App Store. The FRA's press release announcing the App is attached here. Users of the App can locate information on the warning systems and other information at crossings nationwide based on their geographic location, as well as the ability the report information about crossings.
Friday, June 7, 2013
A divided panel of the U.S. Court of Appeals for the Fourth Circuit, ruled today that a rail carrier was responsible for all damage caused during shipment to a $1.3 million electrical transformer. The Opinion in ABB Inc. v. CSX Transportation, Inc. is attached here. The majority of the three-judge panel held that the railroad had not limited its liability under the Carmack Amendment (49 U.S.C. sec. 11706). Holding that in order to overcome the default posture of the Carmack Amendment, which imposes all liability for losses in shipment on the carrier, the Court explained "the carrier and the shipper must have a written agreement that is sufficiently specific to manifest that the shipper in fact agreed to a limitation of liability." The Court's decision turned largely on the absence of a specific reference to the carrier's rate terms on the Bill of Lading issued by the shipper. The shipper-issued bill of lading did not reference the carrier's price publication, and the shipper acknowledged its own computer program prevented it from inserting the price code referencing the carrier's terms. However, the bill of lading did state that the shipper was aware of all carrier terms covering the shipment. Therefore, even though bill of lading generated by the shipper stated it was bound to the carrier terms covering the movement, because there was no actual reference the carrier's price terms, the Court found the parties did not actually agree in writing to limit the carrier's liability. One interesting portion of the majority opinion is the discounting of the word "tariff" as an out dated term no longer operative in a de-regulated rail industry. Noting that prior to de-regulation, shippers were held to have constructive knowledge of published rail tariffs, the Court distinguished the current practice where rail tariffs are no longer required to be published with the government, but rather are available from carriers by request. Terming the phrase "tariff" as used in the shipper's own bill of lading as "generic and outdated" the majority simply did not consider the limitation of liability specific enough. In a strongly-worded dissent, Circuit Judge Agee pointed out that the shipper was essentially seeking relief from the contract it drafted, i.e. the bill of lading, which incorporated by reference the carrier rate rules which limited liability. Taking issue with the majority's view that "tariff" terms are generic and outdated, and referring to the shipper-generated bill of lading referencing agreement to the carrier's terms, the dissent stated, "Nothing in the Carmack Amendment requires the carrier to hold the shipper harmless from the shipper's negligence, particularly where the carrier has every reason to take the shipper at its word."