FREIGHT AND CARGO
Beyond produce and PACA regulations, Esquivel Law represents freight brokers, shippers, and logistics companies. When you need an attorney to answer your freight and shipping questions, you need the legal services of Esquivel Law. We can review your shipping documentation and contracts and determine what needs to be done to protect your freight and peace of mind.
When motor carriers were deregulated in the wake of the Interstate Commerce Commission Termination Act of 1995 (ICCTA), state and even local tariffs and regulations took over. Knowledge of the most recent regulations is paramount in assessing disputes over losses, claims, and contract interpretations.
BROKER LIABILITY AND LOSS
Brokers were traditionally meant to be “middlemen,” responsible only for arranging the shipment of goods between the buyer and seller. The broker arranged for the shipment, but under FOB terms, the seller assumed all risk of delivery. The broker was not personally responsible for any loss incurred.
Since deregulation, especially in the early part of the 21st century, there has been an increasing trend towards holding brokers liable for catastrophic bodily injury and major cargo loss, called “Schramm or Sperl” litigation, after the two principal cases that started the trend. (Schramm v. Foster, 341 F. Supp. 2d 536 (D. Md. 2004); Sperl v. C.H. Robinson Worldwide, Inc., 946 N.E.2d 463 (Ill. App. Ct. 2011))
The claims in these cases hold the broker vicariously liable as an agent of the motor carrier, making the broker liable for the entire loss or total damages. Although the plaintiffs in these cases rarely prevail, the litigation can be arduous, expensive, and time-consuming.
Having a transportation attorney review your contract and shipping agreement before you sign anything can preempt this type of legal action and spare you much cost and aggravation. At Esquivel Law, we will review possible scenarios with you and ensure that your interests are protected from potential liability.
TRANSPORTATION & SHIPPING CONTRACTS
Deregulation brought with it a need for fair and legally binding contracts. Laws and regulations change when the federal or state legislature meets to discuss the matter. This means that even online “boilerplate” templates may be outdated by the time both parties agree and sign their document.
The goal of any transportation or shipping agreement should be to equalize the risk of loss between the buyer and seller without unduly jeopardizing the shipper in the middle. Because loss, damage, or theft is most likely during transportation, the shipper and broker are the ones most at risk and need their contracts to be airtight.
Having a skilled transportation lawyer review your agreement will help ensure you have not left anything to chance. A good pair of legal eyes will spot any loopholes or accidental waiver of rights you might have left in your document. Esquivel Law has many pairs of those eyes, and we want to be sure you don’t ship your rights away with your products.
Frequently Asked Questions
WHAT IS THE CARMACK AMENDMENT?
The Carmack Amendment to the Interstate Commerce Act of 1877 allows a shipper to recover damages from a carrier for property lost or damaged during shipment. It also limits recovery to “actual loss or injury” to the property.
HOW CAN A CARRIER AVOID LIABILITY UNDER THE CARMACK AMENDMENT?
There are five exceptions given in the Amendment that allow a carrier to deny liability:
Act of God/force majeure. If a tornado destroyed the load, there is nothing the carrier could have done.
The “public enemy,” i.e. theft beyond the ability of the carrier to foresee or prevent.
Act or default of the shipper. The shipper cannot refuse the shipment and then claim it as a loss.
Public authority. The government may seize the shipment as a public necessity, for instance, commandeering a drinking water shipment during an emergency.
The “vice or nature” of the shipment itself. For example, if a shipment of volatile chemicals were to spontaneously combust, despite proper handling, the carrier would not be liable for the loss.
WHAT IS THE FOOD SAFETY MODERNIZATION ACT?
The Food Safety Modernization Act put into place regulations affecting how produce, animal products, and milk products must be shipped to prevent contamination. The FSMA impacts vehicle maintenance, sanitation, shipping and loading operations, and transporter and loader training.
WHAT IS THE SURFACE TRANSPORTATION BOARD?
The Surface Transportation Board (STB) was put in place after the deregulation of the ICC. Its purpose is to regulate and arbitrate disputes in surface transport, primarily rail transportation. The STB also manages water transport, especially marine freight, intercity bus lines, and non-energy pipelines.
When You Need a Transportation Attorney
Working with transportation and logistics is not for the average shipper or broker. You already have enough to do with handling your company and keeping your business on track. You need someone who knows the laws and can steer your business the way you steer your shipments.
The principal attorney at Esquivel Law, Katy Koestner Esquivel, has been handling shipping and transportation cases since 1998. She knows the legal angles of the transportation and logistics business and what to look for in negotiating and litigating contracts and managing disputes across the country.
Our support staff will keep everything together and keep you up to date with your case no matter where you are. Thanks to the Internet, we are available to our clients in every state and time zone, so virtual meetings have the same personal feel as an in-office gathering. This is what gives Esquivel Law that special touch.
When you need a transportation and logistics lawyer, call us at 239.206.3731 or visit our website and schedule a consultation. Our legal team will be in touch immediately to review your case and ensure everything is in order.