transportation & logistics council, inc.(see ccpac press release below.) monday began with an...

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: www.TLCouncil.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 XXI, ISSUE NO. 219, MAY 2016

Report on T&LC’s 42nd Annual Conference

• Cost of Congestion

• Container Weighing Rules Update

• Panama Canal

• Revised Package Handling Fee by UPS & FedEx

• Railroad Network Data Available

• CCPAC Announces New CCPs

• More Q&A’s

NOW AVAILABLE ON DISK!

Q & A IN PLAIN ENGLISH – BOOKS 7, 8 & 9 - A COMPILATION

TRANSDIGEST-Volume XXI, Issue No. 219, May 2016

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Table of Contents

ASSOCIATION NEWS ......................................... 2

CLASSIFICATION ............................................... 9

INTERNATIONAL ............................................... 9

MOTOR .............................................................. 9

OCEAN ............................................................. 10

PARCEL EXPRESS ............................................ 12

QUESTIONS & ANSWERS ................................ 12

RAILROADS ..................................................... 20

CCPAC NEWS ................................................. 21

ADVERTISE IN THE TRANSDIGEST ................ 22

ASSOCIATION NEWS

PRESIDENT’S REPORT ON 42ND ANNUAL CONFERENCE

By: Curtis Hart: OHL, Director Carrier Development President Transportation & Logistics Council, Inc.

Our 42nd Annual Conference was another well attended “Education for Transportation Professionals” event. Each year we make every effort to provide relevant and usable information for all in the transportation and logistics community. I believe this year was no exception. Panel presentations are available for you to view or download on the Transportation & Logistics Council's website (http://www.tlcouncil.org/2016_Annual%20Conference).

New and seasoned professionals from shippers, carriers, legal experts and other logistics functions were in attendance. Updates on subjects affecting our industry like the economy, regulation, contracting, cargo claims, insurance, RFQ best practice and software were among the topics during the three day annual event.

Sunday’s optional seminars kicked off the pre-conference program. This year’s first day had a very busy schedule with five seminars including Contracting for Transportation & Logistics Services, Freight Claims in Plain English, Transportation, Logistics and the Law, Multimodal Transportation of Hazardous Materials, and The National Motor Freight Classification. The day would not have been complete without the CCP Primer Class put on by the Certified Claims Professional Accreditation Council (“CCPAC”) for claims professionals preparing for Wednesdays CCP exam. Twelve CCP exam participants successfully passed and were awarded CCP certification. Congratulations to those new CCPs! (See CCPAC Press Release below.)

Monday began with an industry discussion moderated by Transportation Intermediaries Association’s President & CEO, Bob Voltmann. John Larkin, Henry Seaton and Mark Szakonyi provided their expert opinions regarding economic forecasts, regulatory impact to transportation contracting, import challenges and comments on exit plans for the outcome of the 2016 presidential election.

One highlight of Monday’s agenda was luncheon speaker Jeff Silver, CEO of Coyote Logistics. Jeff commandingly shared his past experiences and vision as he and Marianne Silver re-entered the brokerage world in 2006 with the founding of Coyote Logistics.

Most will remember the always lively “Law of the Land, Law of the Jungle” moderated by Gerald F. Smith. The council would like to extend a special thank you to Mr. Smith for moderating during this year’s conference. We always enjoy his attendance and are grateful for his participation. Further sessions on Hazmat, food and drug transportation, RFP preparation and insurance coverage filled out the remainder of Monday. On both Sunday and Monday evenings, attendees gathered at the Hospitality Room. We wish to thank the many sponsors for their support.

Tuesday’s general session on supply chain security provided best practices to avoid or minimize exposure to theft and hijacking and great examples of what to do and who to contact for help when thieves


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strike. Mid-morning sessions provided attendees the opportunity to hear expert panelist discuss how to protect interests when dealing with intermediaries and what is needed to know when shipping international multi-modal shipments. Daphne Y. Jefferson, Deputy Administrator, Federal Motor Carrier Safety Administration (“FMCSA”) addressed conference attendees as our luncheon speaker. Mrs. Jefferson laid out the current state of FMCSA and upcoming plans including the vision behind the plans.

After Lunch, George Pezold, senior partner of Pezold, Smith, Hirschmann & Selvaggio, LLC and TLC Executive Director, led our transportation attorney’s panel addressing current issues, court decisions dealing with cargo claims and independent contractors, and recent laws and regulations impacting shippers, carriers and intermediaries. We finished out Tuesday afternoon with a panel overview of software and business intelligence to efficiently manage transportation, warehousing, vendor management, and productivity. The “Meet the Experts” workshop gave attendees the opportunity to meet with legal, transportation, insurance and other experts for free, 10-15 one on one sessions. The President’s Reception Tuesday night was another highlight of the conference. All in attendance had an opportunity to spend time networking, grazing on the many dinner options and enjoying the cool and dry New Mexico evening.

Our final day on Wednesday was filled with panelists discussing how to mitigate losses when dealing with damaged, refused, and undeliverable freight. Freight Claims Q&A, the final session, gave all a chance to bring questions to expert panelists for answers from both a shipper and carrier view point, and provided suggestions on how to resolve difficult situations.

Thanks to all of you who participated in this year’s conference. We hope the conference was another example of the value the council strives to provide year round. We are diligently planning next year's event and look forward to seeing you there.

WELCOME TO THE NEW OFFICERS & DIRECTORS:

2016 TLC Officers & Board of Directors


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TRANSPORTATION & LOGISTICS COUNCIL, INC.

2016 OFFICERS AND BOARD MEMBERS CHAIRPERSON

Nadia Martin, CCP

Blakeman Transportation [email protected]

PRESIDENT VICE PRESIDENT SECRETARY/TREASURER

Curtis Hart David Fleming Angie Sutton

OHL US Cold Storage Logistics & Distribution Services Corp. [email protected] [email protected] [email protected]

Region Regional Directors Assistant Regional Directors

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Wally Dammann, CCP

Mitsui Sumitomo Marine Mgmnt (USA) [email protected]

David Maloof, Esq.

Maloof, Brown & Eagan [email protected]

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David Nordt, CCP

The Gilbert Company [email protected]

Grant Ashe

L&L Freight Services [email protected]

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David Broering

NFI Industries [email protected]

Daniel Bohlman

Butterball [email protected]

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Brian Kiel

Nestle [email protected]

Askia Shaheer

Big Lots [email protected]

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Douglas L. Arents

Rite Hite Corporation [email protected]

Brandon Arnold

Intelligent Logistics [email protected]

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Phillip Wise

[email protected]

Vikki Van Vliet Trans Audit [email protected]

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Jerrod Slaughter

Columbia Sportswear [email protected]

Brian Whitson Mars [email protected]

OUR GRATITUDE The Transportation & Logistics Council, Inc. would like to thank the following for helping to make this

year’s event special:

HOSPITALITY SUITE SPONSORS Thanks to the following for their generous donations and sponsorship of the Hospitality Suites on Sunday

and Monday evenings:


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GOLD SPONSORS

American Truck & Rail Audits

SILVER SPONSORS

ABF Freight System, Inc. Miller Intermodal Logistics Services MTI Inspection Services Pezold, Smith, Hirschmann & Selvaggio, LLC Transportation Intermediaries Association

BRONZE SPONSORS

FedEx Services Logistic Concepts Williams & Associates, Inc.

DOOR PRIZE DONORS Thanks also to the following companies that generously donated door prizes for the Conference: ABF Freight CH Robinson Columbia Coyote Mercer Transportation MILS NFI Industries Perimeter PGL

Rite Hite Sunmaid Toray Flurofibers (America) Total Quality Logistics Trans Audit Transolutions Unipro Wooster Brush

A special thanks to the Transportation & Logistics Council generously donating this year’s Grand

Prize:

Apple Ipad Mini 64GB Wi-Fi Gold

The Council would also like to express its special thanks to Trans Audit for donating the Lanyards and

Bose speakers.


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EXHIBITORS:

NEW MEMBERS The Transportation & Logistics Council would like to welcome the following new members:

Regular Members

Cindy Bean

Maximum Independent Brokerage 3501 E. Frontage Dr., Suite 180 Tampa, FL 33607 [email protected]

Seth Sparks

The Rodey Law Firm P.O. Box 1888 Albuquerque, NM 87103 [email protected]

Ken Pehanick

SaaS Transportation, Inc. 3551 Scenic Hwy. 98, Unit 19A Destin, FL 32541 [email protected]

Rick Iapoce Camerican International, Inc. 45 Eisenhower Drive, Suite 310 Paramus, NJ 07652 [email protected]


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CLASSIFICATION

FUTURE COMMODITY CLASSIFICATION STANDARDS BOARD (“CCSB”) DOCKETS Docket 2016-3 Docket 2017-1

Docket Closing Date July 21, 2016 December 1, 2016

Docket Issue Date August 18, 2016 December 29, 2016

Deadline for Written Submissions and to Become a Party of Record

September 9, 2016 January 20, 2017

CCSB Meeting Date September 20, 2106 January 31, 2017

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

INTERNATIONAL

BORDER CROSSING DATA AVAILABLE

The U.S. Bureau of Transportation Statistics (“BTS”) has made available a searchable database of border crossing/entry data, covering data from 1995 to the end of 2015. Users can specify search by five categories: Port Location; Port Name; Year; Month; and Measure (type of crossing).

The data allow tracking of cross-border traffic and are used for transportation planning, port studies, corridor assessments and other analyses.

Visit http://transborder.bts.gov/programs/international/transborder/TBDR_BC/TBDR_BCQ.html to conduct a search.

MOTOR

CALIFORNIA SURCHARGE

In TRANSDIGEST 217, George Pezold wrote an article about ABF Freight System Inc. (“ABF”) imposing a per shipment freight surcharge of $5.92 for all shipments in or out of California as a result of recent changes in California labor laws that ABF claims are raising the cost of doing business in the state. Now, Old Dominion Freight Line Inc. (“ODFL”) has also announced a similar surcharge on each shipment in or out of California. ODFL is charging a flat fee of $5.95/shipment.

Information received indicates that ODFL representatives have been told by corporate that there will be no waiving or mitigation of this charge. It is reported that the ODFL fee went into effect on or about May 2, 2016.

With motor carriers operating on thin margins, it is likely others will follow suit.


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COST OF CONGESTION

According to the latest report from the American Transportation Research Institute (“ATRI”) traffic congestion on the U.S. National Highway System (“NHS”) added over $49.6 billion in operational costs to the trucking industry in 2014. According to the April 19, 2016 press release:

ATRI utilized a variety of data sources as well as a revised methodology which facilitated the expansion of its previous cost of congestion research from the Interstate System to the entire NHS network. This resulted in calculated delay totaling more than 728 million hours of lost productivity, which equates to 264,500 commercial truck drivers sitting idle for a working year.

ATRI’s analysis also documented the states, metropolitan areas, and counties that were most impacted by these delays and subsequent increased costs. More than a dozen states experienced increased costs of over $1 billion each due to congestion, with Florida and Texas leading with over $4 billion each. As expected, traffic congestion tended to be most severe in urban areas, with 88 percent of the congestion costs concentrated on only 18 percent of the network mileage, and 95 percent of the total congestion cost occurring in metropolitan areas. This concentration of congestion has been well-documented in ongoing work by ATRI which annually identifies the worst truck bottlenecks in the U.S.

The analysis also demonstrates the impact of congestion costs on a per-truck basis, with an average increased cost of $26,625 for trucks that travel 150,000 miles annually.

Visit http://atri-online.org/2016/04/19/trucking-industry-congestion-costs-top-49-6-billion-in-2014/ to view the ATRI press release and visit http://atri-online.org/2016/04/19/cost-of-congestion-to-the-trucking-industry-2016-update/ to access the report.

OCEAN

CONTAINER WEIGHING RULE UPDATE

Officially referred to as the Verified Gross Mass (“VGM”) regulations, approved by the International Maritime Organization (“IMO”) as an amendment to the Safety of Life at Sea (“SOLAS”) Convention, the response to the requirement for mandatory container weighing continues to morph (see TRANSDIGESTS 166, 172, 188 & 213-218 for prior reports).

As we get closer to the implementation date of July 1, 2016 things are starting to sort out providing shippers with some certainty. More ports are announcing how they will handle the situation, basically falling into two categories. They will either provide VGM services to customers that haven’t or couldn’t been able to provide the weight information, or they will refuse non-compliant containers at the gate.

To help confuse the issue, there appears to be some conflict in reports. At the end of April, the Port of Houston announced that it will deny access to its terminals for containers that arrive without proper VGM documentation. It indicated that holding areas will be designated for trucks arriving without a VGM on file. The port, which handles two-thirds of the container volume on the U.S. Gulf Coast, joined ports in Virginia and Savannah in declining to provide on-terminal weighing. However, a separate report stated “several ports, including Charleston, Savannah and Virginia, announced they would provide to shippers the weight information they already capture on their scales following a U.S. Coast Guard declaration three weeks ago that the practice of weighing containers at the port gate is equivalent to meeting the SOLAS requirement.”


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On the other side, Port Everglades in South Florida announced that it will offer shippers the option of using scales at inbound gates to measure container weights on their behalf and relay the information to ocean carriers.

In addition, the 19 ocean carrier members of the Ocean Carrier Equipment Management Association (“OCEMA”), reversed its position and in conjunction with six major East and Gulf coast port authorities, on May 19, 2016 announced they’ll develop a plan to furnish the requisite VGM information needed prior to cargo being loaded onto a ship as of July 1. Their plan is to use port scales to provide the VGM of containers that shippers will be required to provide to carriers before their cargo is loaded. The port authorities include the South Carolina Ports Authority, the Georgia Ports Authority, the North Carolina State Ports Authority, the Port of Houston Authority, the Port of Virginia and the Massachusetts Port Authority.

OCEMA also announced that it would file a new tariff rule to release shippers from liability for inaccuracies in tare weight, also known as unladen weight. The tare weight issue has been one of the stumbling blocks as shippers would be held liable for the weight of a piece of equipment which they neither own, lease nor operate. The problem arises with shippers who can weigh the contents they load in a container, but are unable to actually weigh the loaded container while under the VGM regulations the shipper is liable for the accuracy of the total weight of the loaded container. Weighing the loaded container at the terminal appears to be a simple resolution of this problem.

On the international front, the Maritime Safety Committee (“MSC”) of the International Maritime Organization (“IMO”) has urged its 162 signatory member countries to take a flexible approach toward the July 1 implementation of the VGM regulations. According to the press release available online at: http://www.imo.org/en/MediaCentre/PressBriefings/Pages/14-VGM.aspx:

In this context, the MSC agreed that while there should be no delay in the implementation of the SOLAS requirements, it would be beneficial if Administrations and port State control authorities could take a “practical and pragmatic approach” when enforcing them, for a period of three months immediately following 1 July 2016. This would help ensure that containers that are loaded before 1 July 2016, but transhipped on or after 1 July 2016, reach their final port of discharge without a verified gross mass and it would provide flexibility, for three months immediately after 1 July 2016, to all the stakeholders in containerized transport to refine, if necessary, procedures (e.g. updated software) for documenting, communicating and sharing electronic verified gross mass data.

American Shipper has prepared a report, “Weighing on an Industry: Shipper, NVO, and Carrier Perspectives on VGM,” discussing the extent to which shippers and NVOs [non-vessel operators] expect upcoming container weight regulations to affect their supply chains. The report includes responses from 521 shippers, forwarders, NVOs, and carriers collected in the first quarter of 2016 and indicates the vast majority of shippers don’t even understand how to comply with the new container weight rules.

Visit http://www.americanshipper.com/main/checkemailreport.aspx?fdid=9d8e1fbe-9bf7-4ada-bd8e-7e2f5eb54e11&source=promo to access the report

As seen from above, the situation remains fluid and concerns about and implications of compliance with the VGM regulations are causing a lot of consternation around the world. Perhaps, similar to the situation at the turn of the century when Y2K had some folks near panic, this too will turn out to be more of a non-event. The global transportation system has a lot of inertia, and while there will likely be some hiccoughs, in hindsight, it will probably be a barely perceptible ripple. Shippers will need to constantly update their information from carriers and service providers in order to avoid problems.


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PANAMA CANAL EXPANSION

“Neopanamax” is the name given to the larger-sized higher capacity vessels that will be able to transit the expanded Panama Canal locks beginning June 27, 2016. The honor of being the first Neopanamax vessel to transit the Canal on its inauguration day, June 26, 2016 goes to the China COSCO vessel Andronikos, a 9,400 TEUs (twenty-foot equivalent units) container ship.

Visit https://www.youtube.com/user/PanamaCanalOnline to view the event live online at the Panama Canal’s YouTube channel.

PARCEL EXPRESS

ADDITIONAL HANDLING FEE SURCHARGE

Both FedEx and UPS have announced an “additional handling surcharge” based on a reduced measurement of the longest side of a package. On May 2, 2016 FedEx announced:

Effective June 1, 2016. Additional Handling Surcharge. A surcharge applies to any FedEx Ground package that measures greater than 48 inches but equal to or less than 108 inches along its longest side. Prior to June 1, 2016, a surcharge applies to any FedEx Ground package that measures greater than 60 inches but equal to or less than 108 inches along its longest side. All other Additional Handling Surcharge size, weight and packaging parameters remain unchanged. The surcharge remains at $10.50 per package. This change applies to shipments within the U.S. and from the U.S. to Canada. See the Jan. 4, 2016, FedEx Service Guide for details.

UPS made a similar announcement on May 6, 2016:

Effective June 6, 2016, UPS is changing the measurement that determines whether the UPS Additional Handling charge will be applied to UPS Ground services packages in the U.S. The updated 2016 UPS Rate and Service Guide will be available to download on June 6, 2016. Any package with the longest side exceeding 48 inches, instead of 60 inches, will be assessed the fee. The Additional Handling fee of $10.50 remains the same. The change does not impact UPS Air or International shipments.

This change is being implemented due to the additional handling required for these types of packages in the UPS network.

Many shippers are not aware of these changes and more often than not they are not aware that their shipping costs are soaring. Even those that are aware of the changes are often not familiar with processes to combat these changes.

QUESTIONS & ANSWERS By George Carl Pezold, Esq.

FREIGHT CLAIMS – INCLUDING USE/SALES TAXES

Question: We are a third party logistics provider (“3PL”) who files cargo claims on behalf of our customers. One of our customers has to (depending on the state) pay a use/sales tax, which is reflected on its


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invoice to the customer. Can this be claimed against a carrier as a general claim item; or is it considered a special claim item?

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 – RISK OF LOSS IN TRANSIT

Question: I just read many of your old Q&A’s section online after I found your site through a Google search. I have a question that I haven’t been able to get answered by the less-than-truckload (“LTL”) brokers I have reached out to.

I am trying to understand where the liability lies when it comes to concealed damage of LTL shipments. I will have ownership of the LTL freight shipment once it leaves my supplier’s/shipper’s dock because of FOB origin terms (I am not the consignee though). Upon delivery, the consignee will inspect the shipment for damages. If they don’t notice any damages, they will sign the Proof of Delivery (“POD”) “clean.” Later, if the receiver/consignee opens the shipment and notices concealed damage, they will come to me to help them with the concealed damage claim process (within 5 days). If the consignee cannot provide good enough evidence that the carrier was at fault (and the carrier’s inspector places the blame on the shipper or the consignee), who is liable for the damage? Me, the receiver/consignee, or the shipper/supplier?

In the situation where a supplier states FOB origin/shipping point terms and a reseller/retailer (me) is drop-shipping that item to the end consumer/consignee, who owns the goods while in transit? Is it me, the reseller, or is it the customer/consignee? I am paying wholesale cost to the supplier and having the product shipped to the customer if that makes sense.

Answer: Concealed damage can occur prior to, during, or after the actual transportation. In any case, the claimant does have an additional burden of establishing good condition when the goods are tendered to the carrier, and that the damage existed upon delivery (and not afterwards). Whether the carrier is liable is obviously a factual question.

Often shipments are packaged and stored for some time before being tendered to the carrier, and are not re-inspected before they are shipped. Depending on the packaging and the handling prior to shipping it is possible that the damage occurred while in the shipper's possession.

As to your question, if the consignee did not damage the shipment after delivery, and there is no evidence that the carrier damaged the shipment, it is possible that the shipment was damaged before it was tendered to the carrier. In other words, the shipper would bear the loss.

As to who owns the product during transit, it depends on the contract between the seller and the buyer. The Uniform Commercial Code speaks of the right of possession and "risk of loss in transit", not "title" or "ownership". Once the goods are tendered to the carrier, the consignee would be entitled to delivery and possession of the goods, and would have the obligation to pay for them (whether or not they are lost or


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damaged in transit). The only exception I can think of is a situation where the seller stops the goods while in transit and reconsigns them to another party.

FREIGHT CLAIMS – VALUATION BASED UPON CLASSIFICATION

Question: We recently received a claim for a reconditioned engine carrying a National Motor Freight Classification (“NMFC”) release value of $5/pound. We are active members of the NMFC, so using this guideline we are projecting claim liability of $5,909.85. With this, however, we are questioning whether or not the “core value” of $3,200 could also be subtracted out of the total due since the claimant will be retaining salvage.

Also, just to fully insure accuracy in my determination, I wanted to verify the following in regards to rates, the bill of lading (“BOL”), and corresponding release values.

The customer/claimant completed the BOL stating NMFC# 120790 = Class 70.

After further review of this particular item (in plastic tote - USED /RECONDITIONED), Note 120791 states that this should truly be classed as 120800 which given that the “excessive value” (also further outlined in our tariff simply stating we require additional revenue) was not declared this would presumably fall under Sub 08, Class 150 carrying a release value in that scenario of $7.50 in accordance with the tariff (?) -OR- Could this be a Sub 01/02 releasing at the previously referenced $5/pound?

Thank you in advance for sharing your expertise on this subject matter!

Answer: As to your first question, it would seem to me that if you are asserting a liability limitation that is less than the actual value of the engine, less the core value, you cannot also deduct the core value from your claim payment.

As to the proper classification of the engine I would refer you to one of the specialists at the Commodity Classification Standards Board (George Beck, Dan Hornig or Don Newell). The email address is [email protected], phone number is 703 838 1810.

INTERNATIONAL TRADE – BASIS FOR DUTY, FEES AND VAT

Question: I am a supplier who utilizes a freight forwarding company for our shipments. We have a potential customer in the EU who is worried about the rates for the duty, fees, and VAT (value added tax) when importing into the EU from the USA.

However, they have an office here in the USA as well as the EU. My question is while remaining compliant to customs and international regulations, if the product is sold to their office here in the USA and then they handle the shipping to the EU, would the duty, fees, and VAT be lower or non-existent as they are moving assets of their company from one office location to another?

Or does that not matter as they are still importing into the EU and be subject to VAT charges?

Answer: For information on VAT you should ask your US export forwarder or Customs Broker in EU. If there is a Customs entry and release in US, duties would be due, but the duty calculation would not be based on “transaction value.” If brought to US on a temporary basis, such as lease, testing, repacking in bond, or other “temporary” terms than either no duty will be due or it would be reduced from “transaction value” if it were a purchase. A competent US Customs broker should be engaged for this move.


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FREIGHT CLAIMS – INSURANCE COVERAGE

Question: I am a freight coordinator for a company that resells and ships consumer electronics. The company I work for is fully insured on all our freight shipments. The only shipments where I need the insurance company’s pre-approval for coverage are shipments valued at over $500K, which may require additional stipulations in order to bind coverage.

On all shipments under 500K in value, their only stipulation for us is to buy Declared Value (“DV”) coverage through the logistics company/carrier on 25% of total value in every shipment. In the case of a total loss, our insurance company would pay us the total value of shipment and go after the carrier for the value declared to recoup their costs of payout.

Please help me understand the distinction between Motor Truck Cargo Insurance, Motor Truck Cargo Legal Liability (MTCLL), and Declared Value.

We are fully covered on all cargo with motor truck cargo insurance through our insurance broker. Our insurance broker’s stipulation is that we must be taking out Declared Value Coverage for every shipment booked, to the amount of at least 25% of total value.

Question#1 - If shipment value is $400,000 we must disclose $100,000 of declared value on a quote form to the logistics companies we request quotes from. If the transporting carrier carries $100,000 in MTCLL and the shipment is a total loss due to carrier’s negligence, our insurance broker would be able to recover the $100,000 and I would be in compliance with our broker’s stipulation, correct?

Question #2 - Some bills of lading (“BOL”) do not have a section to disclose a Declared Value (“DV”). Shipment is booked through broker and DV is disclosed before booking.

Transporting carrier BOL received from Broker doesn’t show a section with DV amount. A freight claim has to be filed due to damage. Are there any issues with collecting for damages from carrier because the declared value was not stated on BOL? Or is it enough because the broker said the quote includes declared value amount?

Answer: Since I don’t know what the insurance policy says, I can only assume that the policy provision is valid and a coverage requirement.

I must observe, however, that carriers may or may not provide for excess valuation on high-value shipments. Merely stating a value on the bill of lading does not guarantee that the carrier will provide additional liability coverage, and in most cases it does not. You need to check the carrier’s rules tariff to determine if excess valuation is available, how to obtain it and what the excess valuation charge will be - OR get a written agreement with the carrier for the additional coverage.

FREIGHT CHARGES – LIMITATIONS ON BROKER’S SURETY

Question: Is a broker’s bond obligated to pay all charges invoiced to the broker that are not paid to the carrier? We have been told they are only obligated to pay the drayage charges. If we have wait time, etc., we have to go to court to get a judgment. All possible charges including the drayage are spelled out on our quote to the broker before we receive a delivery order from the broker.

Answer: I assume you are a motor carrier and that you invoiced the broker for your freight and accessorial charges (“wait” or detention time). I would think that if these charges were included in the rate quote/confirmation agreement the broker would be legally obligated to pay them, and, if so, the surety or trust company would have to recognize these charges in paying the claim.


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INTERNATIONAL TRADE – PROPER DOCUMENTATION

Question: I have a question regarding exporting documents. I’m a reseller, buying a product here in the US to resell and ship to China. Should my company’s name be on the invoice and all shipping documents or should it be the name of the company in China (the buyer)? The US supplier will take care all the shipping of the products.

Should the invoice be under my company name since I will be paying for the goods? Yet, if my name is on the invoice, how will the Chinese company be able to receive the products if it’s not invoiced under their name when it arrived port in China? What is the best way to tackle this issue?

Answer: I would suggest that you consult with your freight forwarder - they have the expertise and knowledge about the proper documentation and trade practices.

FREIGHT CLAIMS – IS CONDENSATION AN “ACT OF GOD”?

Question: We are a broker and have an interesting claim situation. We arranged with a carrier to handle a shipment for our customer. The carrier backed to the dock. The shipper loaded large rolls of paper with a clamp truck. The rolls were enclosed in plastic and were too tall to be on top of a pallet. The trailer doors were sealed by the shipper. There was about 6 inches of snow on the ground and a small amount of rain that day. When the shipment arrived at the destination on the same day, the doors were open and the floor of the trailer was wet throughout with the exception of most of the area under the rolls. The rolls were pulled out and photographs were taken showing some water damage and torn plastic.

The carrier claims the rolls were warm which caused condensation, and that the loading process ripped the plastic around the rolls, both which they and their insurer call “latent defects” and caused by the shipper. The shipper states the product was produced on a prior day and not warm and the condition of the plastic isn’t relative because the trailer was dry when loaded and wet when delivered and that it is a maintenance defect of the trailer that allowed water in or the carrier is responsible for the conditions that would lead to condensation during transit.

I’ve read some information and talked to some maintenance experts who agree that condensation does occur inside trailers and according to the photos we provided (which also show an old trailer with some patching), it could be a condensation issue.

Is this an “Act of God” exception since it’s weather related? Or would it be the carrier’s responsibility to let the interior trailer temperature lower before closing the doors (dry van) to reduce the likelihood of condensation?

Answer: I assume that there was no physical evidence of a leaky trailer or any holes that could have admitted water.

Damage from possible condensation depends on a number of factors. Normally there would have to be a high level of humidity in the trailer at the time of shipment, followed for a drop in temperature during transit, and any condensation would probably start on the ceiling and walls first, then dripping or running onto the floor.

The other issue is whether the shipper’s loading (damage to the plastic wrapping) contributed to the damage, but that again would depend on the location of the water damage on the rolls.

In any event, “condensation” would not be considered an “Act of God”.

You may want to consult an expert on this type of damage.


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FREIGHT CLAIMS – APPLICATION OF LIABILITY LIMITATION

Question: I recently received a claim for product being refused at our consignee in the Texas Area.

The product had a temperature above HACCP (hazard analysis and critical control points) regulations so I made the call to file the claim against my carrier.

They in fact turned around and said they are only liable under the co-brokerage agreement for $2.50/lb.

The claim value exceed that value at $9.30/lb. and $11.24/lb. for each commodity rejected.

My question is if my organization (logistics) and the carrier used did not have a brokerage agreement signed and delivered, can the carrier be at fault for the entire value of good rather than their pricing of value?

Answer: I'm not sure what you are referring to as a “co-broker” agreement, or what it may have said.

In any event, it appears that the motor carrier is asserting a liability limitation. If a uniform straight bill of lading was used, and the carrier is a participant in the NMFC or has an applicable liability limitation in its rules tariff, that limitation may well be enforceable, regardless of any agreement between the broker and the carrier, see Exel, Inc. v. Southern Refrigerated Transport, Inc., 807 F.3d 140 (2015).

CONTRACTS – LIMITATIONS FOR CONSEQUENTIAL DAMAGES

Question: We do not use many pure broker services, we typically outsource broker services through our asset based carriers, and apply our contract. We are trying to sign up a true broker, and ran across the following: “Consequential Damages - notwithstanding any provision to the contrary, under no circumstances shall broker and/or carrier be liable to shipper or anyone else for any indirect, consequential, special, punitive or exemplary damages or commercial loss of any kind, including damages related to loss of, damage to or delayed shipment of cargo or the performance of services.”

What does this mean in plain English?

Answer: Without seeing the actual transportation contract I don’t know what provisions it contains for broker (or carrier) liability, or the measure of damage in the event of loss, damage or delay.

Normally, if goods have been sold to a customer and are lost or damaged in transit, the proper measure of damage would be the invoice price to the customer. However, if you don’t say this in the contract the broker or carrier may assert a different measure - such as manufactured cost, replacement cost, etc.

Liability for delay almost always involves some form of “special damages” - loss of sale for seasonal goods, delay to goods having a shelf life, penalty for missing scheduled delivery to a construction site, etc. In those cases, special damages can only be recovered if the shipper gives the carrier advance notice of the need to deliver by a particular date and also what consequences would follow if it fails to do so.

These subjects are thoroughly discussed in Freight Claims in Plain English (4th Ed.) which is available through the Council (www.TLCouncil.org).

FREIGHT CLAIMS – PROPER MEASURE OF DAMAGES

Question: We are a third party logistics provider (“3PL”) and file claims on behalf of our customers with the carriers. Some of our the carriers we file with will accept the selling price to the consignee even if the customer did not lose the sale while others insist on shippers cost. Which is correct and why?

Answer: In the ordinary sales transaction, where goods have been lost or destroyed in transit, the invoice amount is acknowledged as the measure of loss. Thus, where a consignee-purchaser has assumed the risk of loss in transit, he will still have to pay for the goods even though he has not received them, and his damage


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is the amount of the invoice price. Conversely, if the seller had the risk of loss, he would be unable to collect his invoice price, and his loss would be the same amount.

Cases involving goods that had been sold to a customer, and which awarded the invoice price, include: Philips Consumer Electronics Co. v. Arrow Carrier Corp., 785 F.Supp. 436 (S.D. N.Y. 1992); Corning Incorporated v. Missouri Nebraska Express, 1996 WL 224673 (E.D. Pa. Apr. 29, 1996); Robert Burton Associates, Ltd. v. Preston Trucking Co., unreported, Civ. No. 96-745(NHP), (D. NJ Mar. 24, 1997), aff'd on reh., (D. NJ May 22, 1997), reversed in part and remanded, 1998 WL 381711 (3rd Cir. Jul. 10, 1998); Custom Cartage, Inc. v. Motorola, Inc., No. 98C5182, 1999 WL 965686 (N.D. Ill. Oct. 15, 1999); Paper Magic Group, Inc. v. J.B. Hunt Transport, Inc., 318 F. 3rd 458 (3rd Cir. 2003).

The Philips case involved a shipment of camcorders to a customer in Newburgh, New York. A portion of this shipment was never delivered and was later converted by the trucker, Arrow, which sold the camcorders as salvage.

One issue was the measure of damages. Arrow argued that, because Philips had sent a replacement order to its customer, it was not entitled to a “double profit”. The court rejected Arrow’s argument, and held that the invoice price was the proper measure of damages.

Corning involved a shipment of glass panels from Corning to a customer which was damaged enroute. The carrier argued that since Corning had later made a replacement shipment to its customer, it was only entitled to its manufacturing cost. The court rejected defendant’s theory and awarded Corning’s invoice price, less the net salvage proceeds.

In Paper Magic Group v. J.B. Hunt Transport, 2001 U.S. Dist. LEXIS 13494 (E.D. Pa. 2001), aff'd, 318 F.3d 458 (3rd Cir. 2003), the District Court awarded the shipper’s contract (invoice) price, stating:

The measure of actual damages is the contract price. See Illinois Cent. R. Co. v. Crail, 281 U.S. 57, 64-65 (1930) (the market value test may be discarded when another more accurate measure of actual damages exists); Robert Burton Assoc., Inc. v. Preston Trucking Co., Inc., 149 F.3d 218, 221 (3rd Cir. 1998) (“ordinarily when the carrier is responsible for the loss of the goods in transit, the shipper is entitled to recover the contract price from the carrier.”); John Morrell, 560 F.2d at 280 (“[t]he only way to reimburse [a] shipper [whose goods were delivered late] for its ‘full actual loss’ is to use the contract price method.”). It is undisputed that the contract price for the goods was $130,080.48. Paper Magic has evidence to prove the third element of its prima facie case.

The Court of Appeals noted that under principles of contract law, the measure of damages is “designed to put the injured party back in as good a position as it was before the contract was breached”, and that:

... given this purpose, the general rule is that when goods are lost or destroyed the shipper is entitled to damages in the form of the payment of the entire invoice price.

CARRIERS – LIABILITY FOR PROPERTY DAMAGE

Question: I live across the street from a store. The delivery drivers have been driving in my yard, damaging my fence and putting deep ruts in the yard which I have to keep filling. The manager of the store has actually seen this happen. It is not the store’s truck drivers, but subcontracted drivers delivering items. It apparently is difficult to navigate to the loading dock if the driver is not experienced.

The manager says he is not responsible for what the subcontracted driver does and when he or I call the companies no one ever calls back. My concern is that my main water line is right where they drive into my yard and I am afraid they will break it and then I will be responsible for a huge repair bill. Can you tell me


19

who actually is responsible for the damage and what recourse I have? I know I’m not in the “shipping business” but I am definitely being affected by people in this business who obviously don’t care if they damage my property.

Answer: The only thing I can suggest is to complain to the trucking company that is the operator of the truck.

In order to do this you will need to write down the carrier’s USDOT number - usually on the door of the tractor.

Then, check the Federal Motor Carrier Safety Administration’s website at the Licensing & Insurance section: http://li-public.fmcsa.dot.gov/LIVIEW/pkg_html.prc_limain

Next you will have to choose “Carrier Search” from the menu, and enter the carrier’s USDOT number. The website should then display the name, address and phone number for the carrier.

FREIGHT CHARGES – LIABILITY TO BROKER FOR LATE DELIVERY CHARGES

Question: Does a broker of freight has a right to file late delivery charges to carrier if they were never presented with a late delivery charges or held liable for any money by their customer and owner of the goods?

When the load was originally tendered to the carrier there was a note made that charges may apply if delivered late. Afterwards, product was received in full and good condition, however late. Customer is not seeking late delivery charges but the freight broker is claiming $300.00/hr. charge. Can the broker seek these charges from the carrier even though they did not incur any cost to their customer?

Answer: Whether or not you have an obligation to pay the late charge is governed by the contractual agreement with the broker. If the contract (or rate confirmation, etc.) provides for a specific charge or penalty for missing an appointment, the broker is probably entitled to collect - regardless of its agreement with the shipper or the consignee.

FREIGHT CLAIMS – SHORTAGE ON MULTIPLE STOP SHIPMENT

Question: What is the law when it comes to shortages on preloaded, sealed trailers? Our customer reported a stop on a load was not delivered and the carrier claims they never received any paperwork for that stop. The load was picked up at the shipper by a truckload (“TL”) carrier who made two deliveries before dropping the remaining product with a less-than-truckload (“LTL”) carrier. One of the stops for the LTL shipment was not delivered, but neither the truckload carrier nor the LTL carrier acknowledges they ever received the product.

Answer: From your description of the facts this was a “shipper load and count” shipment, sealed by the shipper at origin. It was first transported by a TL carrier that made two stops for partial deliveries and then interlined by the truckload carrier to an LTL carrier for additional stops and deliveries.

Once the shipper’s seal was broken at the first stop there apparently were no other seals applied or other records that might help identify where the shortage occurred. Thus it is possible that the missing shipment may have been misdelivered to another consignee.

Remember the claimant’s burden of proof: to establish the actual quantity that was loaded at origin, and the actual quantities that were delivered at each of the stops for partial deliveries. These are factual questions and may require some detective work. For example, you may need to get written statements or affidavits from persons with actual knowledge and that witnessed the both the loading and the unloading at each of the stops.


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In any event, if the claimant can establish with reasonable proof that the goods were actually tendered to the carrier at origin, and that none of the consignees received an overage, the receiving carrier would be liable, regardless of whether the loss occurred while in its possession or the possession of the interline carrier.

LIABILITY – CHARGING FOR “FREIGHT INSURANCE” ON A SHIPMENT

Question: Our company purchases a Cargo and Inland transit insurance policy that insures our shipments. The premium is an annual blanket premium based on total estimated shipment values. My question is, is there any law that would prevent us from invoicing customers for “freight insurance” on a per shipment basis due to the blanket nature of the insurance?

My concern is since we are not paying for insurance at a specific rate per shipment and passing specific costs along, will be possibly be considered some sort of unlicensed insurance provider by passing along costs that may exceed our total premium paid over time?

Answer: As you may be aware, only a licensed insurance broker or agent can actually “sell” insurance.

Also, there is a question as to which party actually has risk of loss in transit. Since you are the insured, unless you have risk of loss during transit (e.g. FOB destination), your inland marine policy would not normally cover the loss.

The situation might be different if your contract of sale obligates you to assume the risk of loss in transit, or you would handle loss or damage claims for your customers and replace lost or damaged goods at your expense.

In that case I can see how an “insurance charge” to the customer could be justified and would not be illegal, just like any other “shipping and handling” charge.

RAILROADS

RAIL NETWORK DATA AVAILABLE

On May 13, 2016 the Federal Bureau of Transportation Statistics (“BTS”) announced its release of the rail network and rail nodes portion of the 2016 National Transportation Atlas Database (“NTAD”). According to the announcement:

Due to high public demand, BTS is making these data available as a pre-release instead of in late June when NTAD 2016 will be released. This release includes the United States portion of the new North American Rail Network (“NARN”). The NARN, funded by BTS and the Federal Railroad Administration (“FRA”), is an enhanced spatial data set that brings together the previous FRA network, data from the FRA Automated Track Inspection Program, and other government data sources into a single rail network. These data, adopted by the Association of American Railroads Geographic Information Systems Rail Committee as the industry standard, are important to transportation professionals and the public for displaying and analyzing geospatial information on or around the rail infrastructure in the U.S.

Visit http://www.rita.dot.gov/bts/press_releases/dot054_16 to view the announcement.


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CCPAC NEWS

CCPAC

The Officers and Board of Directors of the Certified Claims Professional Accreditation Council, Inc. (“CCPAC”) are pleased to announce and congratulate the newest Certified Claims Professionals (“CCP’s”) who have demonstrated through experience, education, and examination have successfully passed the CCP Exam given in Albuquerque, NM on May 4, 2016:

Stephanie L Barrall, CCP Trinity Logistics Inc Seaford DE

Colby A Beland, CCP CaseStack Fayetteville AR

Amanda I Dixon-Shropshire, CCP Veritiv Norcross GA

Doni Graevell, CCP American Fast Freight Inc Fife WA

Joe Groke, CCP OHL Brentwood TN

Sheila Hill, CCP Smithfield Foods Smithfield VA

Don Lacey, CCP American Fast Freight Inc Fife WA

Tamara LaTorre, CCP RFX Forward Avon MA

Chuck Magness, CCP Lennox Industries Richardson TX

Abigail J Rapp, CCP Jarrett Logistics Orrville OH

Riaz Rao, CCP Lennox International Richardson TX

Willie L Savage, II, CCP Trinity Logistics Inc Seaford DE

Established in 1981, CCPAC is a nonprofit organization comprised of manufacturers, shippers, freight forwarders, brokers, logistics, insurance, law firms and transportation carriers including air, ocean, truck and rail. CCPAC seeks to raise the professional standards of individuals who specialize in the administration and negotiation of cargo claims. Specifically, it seeks to give recognition to those who have acquired the necessary degree of experience, education, expertise and successfully passed the CCP Certification Exam covering domestic and international cargo liability to warrant acknowledgment of their professional stature. Inquires http://www.ccpac.com/.

The next CCP exam will be given Saturday, November 5, 2016, in most major cities nationally. Prior application, registration and approval are required to sit for the exam.

Additional information can be obtained by contacting John O’Dell, Executive Director of CCPAC, by phone: 904-322-0383 or email: [email protected] or visit http://www.ccpac.com/.


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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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Books 7, 8 & 9 – A Compilation "Transportation & Logistics - Q&A in Plain English - Books 7, 8 & 9" is a compilation of the seventh, eighth and ninth books in this series of the Council's popular texts that were originally published in 2009 through 2013. Since these were about to go out of print, the Council decided to re-publish this valuable reference material in a single CD version. Based on hundreds of actual questions submitted to the Council’s “Q&A” forum and published in the TransDigest, these are real questions, from business people – shippers, carriers and logistics professionals – with a wide range of day-to-day transportation and logistics problems. The answers are by George Carl Pezold and Raymond A. Selvaggio, two leading transportation attorneys, and are clear, concise and to the point. This compilation is a “gold mine” of valuable information with almost 500 questions and answers, a table of contents and topical index – some 337 pages if produced in a print version, and now available on a single CD. The text 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. If purchased separately, the total cost of all three books would be $110 (for members) $150 (for non-members). The CD version is a big savings - only $70 (for members) and $90 (for non-members). This includes FREE shipping!

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