transportation industry news Spring
2016
You Heard About ELDs, Now Get Ready for “ELDT” 3 The Road Ahead & Making Tracks — Team Updates 6 Team Directory 7
NO SOLAS FOR SHIPPERS Container Weight Verification Mandate Approaches JOSEPH ROHE joseph.rohe@smithmoorelaw.com
Come July 1, 2016, shippers will be required to obtain and document the Verified Gross Mass (“VGM”) of loaded containers and timely transmit that information to the terminal operator and ocean carrier before cargo will be loaded aboard vessels. The revised provisions of the Safety of Life at Sea Convention (“SOLAS”) were approved by the International Maritime Organization’s (“IMO”) Maritime Safety Committee in May of 2014 and have since generated considerable angst from both shippers and logistics providers. SOLAS is an international maritime safety treaty establishing minimum safety standards
for merchant shipping adopted in 1974. Chapter VI, part A, regulation 2 of SOLAS now requires that the gross mass of packed containers be verified prior to stowage aboard a ship. This requirement is intended not only to ensure the safety of the ship, but also safety of workers both aboard ships and ashore, safety of cargo, and overall safety at sea. As summarized by the IMO, its weight verification guidelines “are intended to establish a common approach for the implementation and enforcement of the SOLAS requirements regarding the verification of the gross mass of packed containers.” As the deadline approaches, a number of shipping and transportation industry
groups have voiced fears that a lack of preparedness and understanding on the part of shippers may wreak havoc on the supply chain when the new weight verification rules go into effect. At least one group has even complained that the new rule may contribute to and exacerbate the commercial driver shortage. Compounding the apparent problem are concerns over already congested ports and a lack of guidance from U.S. authorities on enforcement of the new rule. Concerns flared recently after U.S. Coast Guard (“USCG”) Rear Admiral Paul Thomas commented at the 16th Annual TPM Conference in Long Beach that the rule was a commercial rather than regulatory matter. As the IMO designated authority, USCG would ordinarily be responsible for implementation and enforcement. Almost immediately following the Continued on Page 2
comments and amidst an outcry and requests for clarification from industry participants, USCG published online at the Coast Guard Maritime Commons blog a number of answers to “frequently asked questions” concerning the new mandate. Therein, USCG confirmed that “[a]s the U.S. port state authority, the USCG is responsible for verifying that all foreign-flagged ships comply with SOLAS when operating in U.S. waters” and that “U.S.-flagged ships comply with SOLAS when engaged in international voyages.” To ensure compliance, USCG will continue to conduct port state control examinations as it has prior to the implementation of the new weight verification requirements. In addition to USCG examinations, terminal operators and container lines have a vested commercial interest in timely receiving VGM data. As such, the international shipping industry is currently working to develop and implement globalized standards for electronic data submission, and at least one carrier has already voiced its preferences to receive VGM via electronic data interchange (“EDI”) or electronic data processing (“EDP”). What we do know, however, is that any container loaded aboard a ship anywhere
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in the world must be accompanied by shipping documentation setting forth the VGM of all containers signed by the shipper, either electronically or in hard copy. If the documentation is lacking, the container simply will not be loaded. Under the new rules, there are two acceptable methods for obtaining VGM. The weight may be obtained by either (1) weighing the entire container after it has been packed, or (2) weighing the cargo and all contents of the container and adding that sum to the container’s published tare weight. According to IMO guidelines, the shipper named on the ocean carrier bill of lading is responsible for the weight verification, and there is no permissible exception for co-loaded containers. In addition to requiring that shippers verify the weight of all loaded containers laden upon a ship for export, the recently amended SOLAS will require timely transmission of VGM data to terminal operators and steamship lines. VGM must be provided “to the ship’s master or his representative and to the terminal or its representative sufficiently in advance to allow for the edition of the loading plan.” The IMO guidelines further provide that a loaded container
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“should not be loaded onto a ship to which the SOLAS regulations apply unless the master or his representative and the terminal representative have obtained, in advance of vessel loading, the verified actual gross mass of the container.” This past January a draft procedure for weight verification was published by Transport Canada mimicking in large part the guidelines published by the IMO; however, the biggest uncertainty remains not with how VGM is determined, but with how the data is to be communicated in advance of lading. During the recent TPM Conference, a UPS Supply Chain Solutions executive suggested that transportation intermediaries would likely play a large and important role in the verification process. In addition, the International Federation of Freight Forwarders Association has called upon the steamship lines to better communicate their intentions for receipt of VGM data. In the confusion one thing remains certain—communication with terminal operators and carriers regarding VGM data submission will be vital to a smooth implementation of the new container weight verification requirements.
YOU HEARD ABOUT ELDs, NOW GET READY FOR “ELDT” Entry-Level Driver Training Regulations MARVIS JENKINS | marvis.jenkins@smithmoorelaw.com
Kurt Rozelsky Named Vice Chair of the 2016 United Way of Greenville County Annual Campaign Kurt Rozelsky has been appointed Campaign Vice Chair of the 2016 United Way of Greenville County Annual Campaign. Last year the Campaign raised $16.7 million, the most money ever raised by a United Way campaign in South Carolina, to promote the Cycle of Success in Greenville County. Kurt has been an active volunteer with the United Way since 1995, having served as a Loaned Executive, Chair of the Young Philanthropists, Palmetto Society Board Member, and Campaign Cabinet Area Leader. Following his year as Vice Chair, Kurt will serve as the 2017 Campaign Chair.
The Federal Motor Carrier Safety Administration (“FMCSA”) together with the United States Department of Transportation (“DOT”) has recently published a Notice of Proposed Rulemaking (“NPRM”) and requested public comment regarding the highly anticipated proposed minimum requirements for entrylevel driver training (“ELDT”) applicable to certain operators of commercial motor vehicles (“CMV”). The proposed regulations are consensus recommendations developed by a negotiated rulemaking committee and the Entry-Level Driver Training Advisory Committee (“ELDTAC”). The NPRM proposes to implement a uniform set of regulations regarding minimum training requirements for entry level drivers to obtain a commercial driver’s license (“CDL”) and uniform rules regarding qualifications of facilities and instructors authorized to administer training. HISTORY OF ELDT REGULATIONS The FMSCA has published this NPRM after decades of failed attempts to implement appropriate ELDT regulations and in an attempt to resolve legal actions filed against it by various interest groups seeking the implementation of similar regulations. This NPRM is based on the authority of the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984, the Commercial Vehicle Safety Act of 1986, and Section 32304 of the Moving Ahead for Progress in the 21st Century Act (“MAP-21”). Together, these laws establish the FMCSA authority to promulgate ELDT regulations, and MAP-21 requires the establishment of minimum driver training standards for certain individuals required to hold a CDL. In the early 1980s, the predecessor to the FMCSA, the Federal Highway Administration’s (“FHWA”) Office of Motor Carriers, determined there was a need for technical guidance in the area of truck driver training and published a “Model Curriculum for Training Tractor-Trailer Drivers.” The “Model Curriculum” recommended the equivalent of 148 hours of training. To read more about the ELDT Regulations, go to smithmoorelaw.com/TNLELDT Smith Moore Leatherwood
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BACK TO THE FUTURE: THE 34-HOUR RESTART RULE SAGA MARC TUCKER | marc.tucker@smithmoorelaw.com
On July 1, 2013, the trucking industry saw an overhaul of the hours of service regulations. The new regulations required a 34-hour restart provision once every 168 hours; a driver using the 34-hour restart provision is required to have as part of the restart two periods that include the 1–5 a.m. time period. The overhaul was premised on increasing driver safety as well as the safety of all those on America’s roadways. As expected, the overhaul was not without controversy. Many within the industry opposed the 1–5 a.m. and the once per week restart requirement on the basis that there was no proven correlation between these provisions and increased safety. In December 2014 industry stakeholders successfully lobbied Congress to suspend enforcement of the 1–5 a.m. off-duty requirement and the once per week limitation on the use of the restart pending a study by FMCSA to determine whether these regulations, in fact, increased safety. During the study period, the industry could operate under the simple restart rules in effect prior to July 1, 2013. FMCSA announced on October 1, 2015 that it concluded the data collection phase of the required study period; FMCSA then begun the data analysis phase and stated that it hoped to produce a report by the end of 2015. In late 2015, and before the FMCSA study was complete, industry stakeholders again lobbied Congress to require additional study criteria that, arguably, increased the likelihood that the FMCSA would not be able to demonstrate any tangible safety benefit to the new rule (i.e., demonstrate significant driver safety and health benefits). To read more about the 34-Hour Restart Rule, go to smithmoorelaw.com/TNL34Hour
CARMACK AMENDMENT’S PREEMPTION OF CONVERSION CLAIMS REDUX The courts giveth and the courts taketh away FREDRIC MARCINAK | fredric.marcinak@smithmoorelaw.com
In a prior edition of this Newsletter, we reported that on the case of Certain Underwriters at Interest at Lloyd’s of London vs. United Parcel Service of America, Inc., 762 F.3d 332, 2014 WL 3906951 (3rd Cir. Aug. 12, 2014), which held that the Carmack Amendment preempts claims that a motor carrier converted—read “stole”— goods consigned to it for transportation. In no uncertain terms, the court found that Carmack’s broad terms encompassed these claims, noting “[The] Amendment’s preemptive force [is] exceedingly broad—broad enough to embrace all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation,” and that this was “the only result that is consistent with the Amendment’s goal of uniformity in its broad, preemptive terms.” Therefore, the court held “that the true conversion exception does not detract from the Carmack Amendment’s preemptive force and is an exception only to its liability limiting provisions.” The Florida Supreme Court—in a case again involving UPS—parted ways with this reasoning and, in so doing, blew a hole in principles of Carmack uniformity. On March 3, 2016, in the case of Ivana Vidovic Mlinar v. United Parcel Service, Inc., et al., the Court reversed two lower court decisions that had granted UPS’s motion to dismiss non-Carmack claims alleging conversion, Profiting by Criminal Activity, Unauthorized Publication of Name or Likeness, and a claim under Florida’s Deceptive and Unfair Trade Practices Act. To read more about the amendment, go to smithmoorelaw.com/TNLCarmackAmend 4
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Diminich, Evans & Moseley Honored with South Carolina Lawyers Weekly’s “Leadership in Law” Award Congratulations to Rob Moseley, Laura Evans, and G.P. Diminich for being named to South Carolina Lawyers Weekly’s "Leadership in Law" list. In its eighth year, South Carolina Lawyers Weekly’s "Leadership in Law" awards have profiled and honored those in the legal community who have achieved success in their law practice, made contributions to society, and had an impact on the legal profession. This year, the publication selected 30 attorneys to honor at their awards presentation in Charleston in March. Smith Moore Leatherwood was the only firm represented on the list with more than one attorney. On Thursday, March 10, a group from our Charleston office attended the Leadership in Law Awards Dinner where Rob, Laura, and G.P. were honored. Attendees included Mike Bowers, Bennett Crites, Mary Ramsay, and Tina Nestor.
CARRIER LOSING SLEEP FMCSA Considers Regulations for Evaluating and Licensing Drivers with Obstructive Sleep Apnea MARY RAMSAY | mary.ramsay@smithmoorelaw.com
On March 10, 2016 the Federal Motor Carrier Safety Administration (“FMCSA”) issued an Advance Notice of Proposed Rulemaking (“ANPRM”) to gather data on the potential impacts, costs, and benefits of requiring drivers with obstructive sleep apnea (“OSA”) to be evaluated and treated. OSA is a number of respiratory disorders characterized by a reduction or cessation of breathing during sleep
ROB GREEN rob.green@smithmoorelaw.com
On March 7th, 2016, the Federal Motor Carrier Safety Administration (“FMCSA”) followed through on its promise to bring back the raw data or “absolute measures” from the Compliance, Safety, and Accountability (“CSA”) program. This information is now available on the FMCSA’s Safety Measurement System (“SMS”) website. Unfortunately, this move to restore the arguably unreliable raw data may only serve to further muddy the waters.
caused by repeated episodes of upper airway collapse in the region of the upper throat (pharynx) that results in intermittent periods of partial airflow obstruction (hypopneas), complete airflow obstruction (apneas), and respiratory effort-related arousals from sleep (“RERAs”) in which affected individuals awaken partially and may experience gasping and choking as they struggle to breathe.
To read more about the regluations, go to smithmoorelaw.com/TNLSleepApnea
FMCSA TO NARROW DEFINITION OF “HIGH RISK” CARRIERS SHAWN KALFUS | shawn.kalfus@smithmoorelaw.com
In news that may be music to the ears of certain motor carriers, the Federal Motor Carrier Safety Administration (“FMCSA”) recently issued a proposal to narrow the definition of “high risk” motor carriers. Currently, a carrier is designated “high risk” if it falls within two scenarios: (1) it’s Unsafe Driving, Crash Indicator, or Hours of Service Compliance BASIC score is in the 85th percentile or higher and one other BASIC score is greater than or equal to thresholds for “all other” motor
CSA DATA MAKES A COMEBACK
carriers for two consecutive months; OR (2) four or more of any BASIC scores are greater than or equal to thresholds for “all other” motor carriers for two consecutive months. The FMCSA noted the current policy failed to identify which carriers require the most urgent attention and did not, ultimately, promote successful intervention. As a result, the new definition is designed to identify carriers with the highest crash risk and allow for immediate intervention.
To read more about the definition, go to smithmoorelaw.com/TNLHighRisk
The FAST Act required the FMCSA to remove carriers’ CSA scores from public view while the program is undergoing a congressionally mandated study. The purpose of the mandated study is to evaluate concerns that CSA scores are an unreliable measure of a carrier’s crash risk and paint a misleading picture to third-party groups who use the rankings to make judgments about carriers. Some of the underlying factors causing the concerns include lack of substantial data on small carriers, regional enforcement disparities, and inaccurate crash data. In December of 2015, the FMCSA pulled all CSA scores and associated data from the SMS website. However, while the CSA rankings are temporarily banned from public view, the FAST Act does allow for “enforcement and inspection data” to be available to the public during the review period. The FMSCA has now made necessary adjustments to the SMS website and has restored the raw data that was used to compile the CSA safety scores. Each carrier’s SMS public profile now includes violation information and crash counts. Ironically, the FMCSA’s move to publish CSA’s raw data could end up being just as misleading to the public as the old CSA scores. To read more about the CSA Data Comeback, go to smithmoorelaw.com/ TNLCSAData
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THE ROAD AHEAD April 5: Rob Moseley will present at the GMTA HR Seminar in Atlanta, GA. Rob will speak on independent contractor issues, brain surgery, politics, and other things he doesn’t know about. To register, go to https://gmta.site-ym.com/events/EventDetails. aspx?id=782293&group. April 6–8: Matt will attend the CLM conference in Orlando, FL. April 13–15: Marc, Shawn, Kurt, and Bennett will crash the DRI Trucking Law Conference in Chicago, I. April 17–19: Rob Moseley will be in Athens, GA, for the UGA Trucking Profitability Conference. He will be on a labor relations panel. He will probably try to explain why blue bulldogs are better than red ones. April 20–21: Matt and Rob Moseley will venture to the Iowa Motor Truck Association Safety Professionals Conference in Des Moines, IA. April 22: Rob Moseley will participate in a webinar for Vertical Alliance Webinar.
April 27–30 : Fredric will head south for the TLA Annual Conference. He will preside over the Freight Claims Committee in Destin, FL . May 10th at 12 p.m. EST: Save the date and watch for a link to register for the next webinar! Topic to be announced. June 4–5 : Fredric will head north of the border for the Conference of Freight Counsel in Toronto, CAN. June 9–11: Rob Moseley will head to Hilton Head, SC, for the SCTA Annual Conference and Board Meeting. June 27–28: Rob Moseley will teach transportation contracts again in Chicago, IL at the SMC3 Connections meeting. For more information, see http://www.smc3. com/smc3/knowledge-events-industry.htm. June 28–30: Rob Moseley will present at the inaugural Truckload Carriers Workforce Builders in Indianapolis, IN. Hopefully, his presentation won’t lead to the concept not being renewed for next year.
Making Tracks If you missed the January 12 Webinar on the FAST Act, you can still listen on line at www.smithmoorelaw.com/ TNLWebinarJan2016. It’s worth the cost of exhausting your data plan. Rob2 (Rob Green and Rob Moseley) enjoyed Music City for the Conference of Freight Counsel meeting in Nashville, TN, on January 10–11. Rob Moseley led a group of explorers into the depths of transportation contracts and cargo claims at the SMC3 Jump Start Conference in Atlanta, GA, on January 19. Rob Moseley also pointed out potential pitfalls from motor carriers who utilize independent contractors at the SC Trucking Association’s Law Conference in “Famously Hot” Columbia, SC, on January 29. Peter Rutledge was there to keep things interesting. On February 5, the SCTA hosted a lunch meeting in Greenville, SC. Jack, Rob Moseley, Joseph, Rob Green, and Peter couldn’t turn down a good meal. Rob Moseley escaped from the arctic Southeast for sunny, warm Miami, FL, for the BB&T Capital Markets Transportation Conference on February 10–11. Rob participated on a panel discussing regulatory updates. Rob Moseley presided over the American College of Transportation Attorneys meeting in Atlanta, GA, on February 20. Rob Moseley presented on brokerage relationships on February 29 at the ATA Executive Leadership Meeting in Nashville, TN. He was issued a trespass notice from the city after going to Nashville two months in a row. 6
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Fredric attended the Specialized Carriers & Riggers Association Specialized Transportation Symposium in Memphis, TN, on March 1–3. Rob Moseley presented on changes to the Trucking Industry in a place that doesn’t change—Charleston, SC. The presentation was to the March Fleet Solutions Group on March 2–4 at a hotel that served as The Citadel from 1842 to 1922. Rob was asked, “Which room was yours?” March 9 was the TIDA Cargo seminar in Tempe, AZ. Rob Moseley spoke on Ocean Freight relationships and PostMap21 contracting. Kurt Rozelsky was a panelist discussing “The Perils of InFighting (with Primary and Excess Carriers) in the Defense of a Catastrophic Loss” at the FDCC Winter Meeting in San Diego, CA, on March 2. March 15 marked another SML Webinar. Joseph, a licensed customs broker, presented on CTPAT, SOLAS, INCOTERMS, and other groups of capital letters. For an archived version, see www.smithmoorelaw.com/ WebinarMarch2016. On March 22, Rob Moseley wowed the US Clay Producers in Hilton Head, SC, with humor and other attempts to avoid addressing substantive issues. Marc attended the North Carolina League of Transportation and Logistics on March 24 meeting at the Charlotte Motor Speedway. Marc met with the NCTA Board of Directors on March 29.
TEAM DIRECTORY ERIK ALBRIGHT
Greensboro, NC | 336.378.5368 erik.albright@smithmoorelaw.com
KEVIN MCCARRELL
Greenville, SC | 864.751.7652 kevin.mccarrell@smithmoorelaw.com
MIKE BOWERS
ROB MOSELEY
STEPHEN COHEN
K R I S T E N N O WA C K I
Charleston, SC | 843.300.6633 mike.bowers@smithmoorelaw.com
Atlanta, GA | 404.962.1023 stephen.cohen@smithmoorelaw.com
*TEAM LEADER* Greenville, SC | 864.751.7643 rob.moseley@smithmoorelaw.com
Greenville, SC | 864.751.7753 kristen.nowacki@smithmoorelaw.com
MANNING CONNORS
BOB PERSONS
RICK COUGHLIN
M A R Y R A M S AY
BENNETT CRITES
JOHN REIS
JULIE EARP
JACK RIORDAN
ROB GREEN
JOSEPH ROHE
J AY H O L L A N D
J E N N I F E R R AT H M A N
MARVIS JENKINS
KURT ROZELSKY
Greensboro, NC | 336.378.5236 manning.connors@smithmoorelaw.com
Greensboro, NC | 336.378.5471 rick.coughlin@smithmoorelaw.com
Charleston, SC | 843.300.6653 bennett.crites@smithmoorelaw.com
Greensboro, NC | 336.378.5256 julie.earp@smithmoorelaw.com
Greenville, NC | 864.751.7617 robert.green@smithmoorelaw.com
Wilmington, NC | 910.815.7165 jay.holland@smithmoorelaw.com
C O N T R A C T AT T O R N E Y
Atlanta, GA | 404.962.1018 marvis.jenkins@smithmoorelaw.com
Atlanta, GA | 404.962.1075 bob.persons@smithmoorelaw.com
Charleston, SC | 843.300.6659 mary.ramsay@smithmoorelaw.com
Charlotte, NC | 704.384.2693 john.reis@smithmoorelaw.com
Greenville, SC | 864.751.7638 jack.riordan@smithmoorelaw.com
Greenville, SC | 864.751.7668 joseph.rohe@smithmoorelaw.com
Atlanta, GA | 404.962.1074 jennifer.rathman@smithmoorelaw.com
PETER RUTLEDGE
FREDRIC MARCINAK
M AT T S T O N E
A L E X M A U LT S B Y
MARC TUCKER
Greenville, SC | 864.751.7691 fredric.marcinak@smithmoorelaw.com
Greensboro, NC | 336.378.5331 alex.maultsby@smithmoorelaw.com
Marvis Jenkins recently came aboard the team to assist in transportation litigation matters. Marvis works closely with Matt Stone and the members of the transportation group in Atlanta on a variety of transportation matters. Prior to assisting the Transportation Group, Marvis practiced in Birmingham, Alabama, representing clients in a variety of commercial litigation, bankruptcy, and insurance defense matters. Marvis received his J.D. from Nova Southeastern University Shepard Broad College of Law and his undergraduate degree from Clemson University.
Greenville, SC | 864.751.7624 kurt.rozelsky@smithmoorelaw.com
S H AW N K A L F U S
Atlanta, GA | 404.962.1042 shawn.kalfus@smithmoorelaw.com
Introducing Marvis Jenkins, a New Resource for the Transportation Group in Atlanta
Greenville, SC | 864.751.7610 peter.rutledge@smithmoorelaw.com
Atlanta, GA | 404.962.1057 matt.stone@smithmoorelaw.com
Raleigh, NC | 919.755.8713 marc.tucker@smithmoorelaw.com
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Smith Moore Leatherwood LLP Attorneys at Law 2 West Washington Street Suite 1100 Greenville, SC 29601 T 864.751.7600 F 864.751.7800 www.smithmoorelaw.com
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Emergency Response Team As part of the array of transportation services provided to firm clients, our 24/7 emergency response team is standing by to serve clients with urgent needs following a catastrophic accident. The team has handled numerous night time and weekend emergencies for our clients. Members of the emergency response team take responsibility for preserving physical and electronic evidence, taking driver and witness statements, making arrangements for cargo salvage, and managing relations with law enforcement. Additionally, firm clients benefit from the team’s knowledge of substantive experts and criminal defense counsel. smithmoorelaw.com/emergencyresponseteam