4/5/2012 DOT Allows Use of UVA-Blocking Window Film

The Department of Transportation's Federal Motor Carrier Safety Administration now allows the use of compliant window films on big rigs to block UVA rays, which have been linked to skin cancer.

Historically, the enforcement community and the trucking industry have taken the position that no film is allowed on any commercial vehicle, according to the International Window Film Association, a nonprofit group.

"The clarification represents information that impacts millions of truck drivers who drive many hours at a stretch," says Darrell Smith, executive director of the IWFA. "The FMCSA has agreed with the International Window Film Association that the use of 'clear' window films with a minimum 70% visibility rating installed on the front side windows is permitted."

The change follows numerous reports of higher-than-average rates of skin cancer on the left side of the face and arm, according to a 2011 article in the Journal of the American Academy of Dermatology. That article pointed to driver-side UVA exposure as a likely contributor to the disease.

"Sadly, long-haul drivers have faced skin cancer as 'one of the hazards of the job,' and we hope to help change that with this clarification," says Smith.

Professionally installed window film typically reduces exposure to UV radiation by up to 99%, reduces glare, interior fading and hot spots, according to the group.

Legal Representation

If you or your trucking company have questions about CMV violations or questions about compliance with any of these regulations, the attorneys at the law firm of Bostwick & Price, P.C. are available to answer your questions and concerns. www.bostwickprice.com

4/2/2012 DOT Shuts down Utah-based Reliable Transportation Services

The U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) has ordered Utah-based Reliable Transportation Services, Inc. to immediately cease all transportation services, declaring the trucking company and its principal, Jay Zachary Barber, an imminent hazard to public safety.

The order follows an extensive review of the company's operations, which found multiple hours-of-service, hazardous materials, drug and alcohol testing and vehicle maintenance violations, as well as a high occurrence of recent crashes.

"Commercial truck companies that blatantly disregard safety should not be on our roadways and will be shut down," said U.S. Transportation Secretary Ray LaHood.

FMCSA immediately shut down Reliable Transportation after safety investigators found hours-of-service and driver qualification violations that substantially increased the likelihood of serious injury or death to the traveling public.

Investigators discovered that the company was using drivers with suspended or revoked commercial driver's licenses and operating without a driver drug and alcohol testing program. In addition, Reliable Transportation was transporting concealed hazardous material loads without valid federal registration.

"This agency will continue to exhaust every resource within its legal authority to pursue and shut down unsafe trucking companies that place the public at risk," said FMCSA Administrator Anne Ferro. "Companies that refuse to adhere to federal safety rules will not be allowed to operate."

According to the FMCSA order, “Reliable Transportation has violated countless federal statutory and regulatory motor carrier safety rules and has been in at least seven crashes in the last year, which include six crashes since December 2011.”
The order comes after an extensive review of the company’s operations that found the company:

• fails to monitor and ensure that its drivers comply with drivers’ hours of service (HOS) and records of duty status requirements;
• fails to ensure that its commercial motor vehicles are inspected, repaired, and maintained;
• fails to ensure that its drivers have appropriate licenses and endorsements for the commercial motor vehicles they operate;
• fails to ensure its drivers are medically examined and certified;
• fails to ensure its drivers are properly qualified to operate commercial motor vehicles;
• fails to comply with driver controlled substances and alcohol use testing requirements;
• fails to comply with hazardous materials regulations (HMRs ), including registration requirements, training requirements and placarding requirements; and
• intentionally submits fraudulent documents in order to avoid detection of continued safety violations.

According to the FMCSA order, the company used drivers with suspended or disqualified commercial licenses, did not have a driver drug and alcohol testing program, and violated the federal hours-of-service regulations to a degree that the company “substantially increased the likelihood of serious injury or death to the traveling public.”

Legal Representation

If you or your trucking company have questions about Hours of Service violations or questions about compliance with these regulations, the attorneys at the law firm of Bostwick & Price, P.C. are available to answer your questions and concerns. www.bostwickprice.com

Utah CDL Traffic Ticket Defense: What you need to know

If you hold a commercial driver's license (CDL), you know that your license is your ticket to work. You know that you and your family's financial security depends on it. You know it is critical that any ticket you get can compromise your license, your job, or both.

At the law firm of Bostwick & Price, P.C., we represent commercial driver's license holders of all kinds including truck drivers, van drivers, bus drivers and other drivers who received a New York traffic violation or criminal charge.

Traffic Citations Can Put Your CDL On The Line

As a truck driver, you are constantly under pressure to get your load delivered on time, get back on the road and get to where you are going. With this comes the added pressure of worrying about getting a traffic citation that could put your CDL in jeopardy. With as much time as you put in behind the wheel of your truck, it is extremely difficult to avoid some traffic citations. The following citations, among others, can put your CDL on the line:

    Following too closely
    Speeding
    Failure to stop
    Reckless driving
    Careless driving
    Traveling in the wrong lane
    Using off-truck routes
    Failure to obey traffic control devices
    Logbook violations
    Exceeding drivers' hours
    Exceeding truck load weight limits
    Being over-length or over-width
    Tire tread depth
    Lack of required safety equipment
    Other equipment violations

Reporting Your Ticket to Your Employer

According to the U.S. Department of Transportation Commercial Drivers License Program, "Within 30 days of a conviction for any traffic violation, except parking, a driver must notify his/her employer, regardless of the nature of the violation or the type of vehicle which was driven at the time."

We have a thorough understanding of the special CDL rules that could result in your loss of your CDL and employment as a commercial truck driver. We have the experience in dealing with local prosecutor’s in getting traffic citations dismissed or reduced as much as possible under the circumstances.

Legal Representation

If you or your trucking company have questions about Utah CDL Traffic Ticket Defense or other Commercial Vehicle violations, the attorneys at the law firm of Bostwick & Price, P.C. are available to answer your questions and concerns. www.bostwickprice.com

Will the new hours of service regulations really make a difference?

The Obama administration ruled that truck drivers cannot work more than 11 hours per day, among other hours-of-service (HOS) changes, in an attempt to improve safety and reduce 18-wheeler accidents. But the revisions could have an adverse effect on truck drivers and passenger vehicles, a concerned American Trucking Association (ATA) reports.

Under the new law, truck drivers are much more restricted in when and how they allocate hours. For instance, drivers must take at least a 30 minute break during an eight hour stretch if they are to continue working up to their 11 hours. Overall, truck drivers are now limited to 70 hour workweeks.
Instead of allowing a 34-hour restart each week, the new HOS rule mandates that drivers be off from 1-5 a.m. at least twice. Changes were also made to the definition of "on-duty," the report says. While the rules were passed with safety in mind, leaders of the ATA say the modifications will likely do nothing to improve highway safety.

ATA President and CEO Bill Graves says the Obama administration and the Federal Motor Carrier Safety Administration (FMCSA) over-reacted to 2010's increase in fatal truck accidents. ATA reports that since 2004, when the current rules first went into effect, fatalities have dropped 29.9 percent.
ATA believes the new HOS rules will cause drivers and consumers to suffer because fewer hours and more restrictions mean lost productivity and higher costs. By prohibiting truck drivers from working at least two nights per week during the graveyard shift, more big rigs will be on the roads when other vehicles are, increasing the chance of a commercial vehicle accident. Graves says FMCSA is ensuring that as droves of Americans commute to work, thousands of truck drivers will be joining them. He says this will create additional congestion and put more people at increased risk for injury.

According to the report, the greatest rates of truck-involved crashes occur between 6AM and noon. For companies or drivers to try to skirt the new HOS laws put in place could lead to heavy fines; spurning the 11-hour driving limit by three or more hours could result in fines up to $11,000 per offense, while the drivers themselves could owe up to $2,750 per violation. These penalties and the on-duty rules go into effect later this month. Other provisions will not begin until July 1, 2013.

 If you or your trucking company have questions about Hours of Service violations or questions about compliance with these regulations, the attorneys at the law firm of Bostwick & Price, P.C. are available to answer your questions and concerns. www.bostwickprice.com

FMCSA Issues Final Rule Revising Truck Driver Hours of Service Regulations

One day after the Department of Transportation issued final flight duty and rest requirements for commercial passenger airline pilots, the DOT’s Federal Motor Carrier Safety Administration (FMCSA) on December 22, 2011, released a final rule establishing new hours of service (HOS) regulations for commercial truck drivers. Like the pilot rest rule, the truck driver HOS regulations were revised to combat fatigue-related accidents. The main changes to the HOS requirements are as follows:

• The agency will maintain the current 11-hour daily driving limit unless further study indicates that the benefits of reducing the limit outweigh the costs. The final rule does not include a change to the daily driving limit because the Agency concluded that it could not definitively demonstrate that a 10-hour limit — which it favored in the proposed rule — would have higher net benefits than an 11-hour limit. The rule does, however, reduce from 82 to 70 the weekly maximum number of hours a truck driver is permitted to work, a 15% reduction.
• The reduction in hours is accomplished by limiting a driver’s “34-hour restart” to once every 168 hours (7 days). As established under earlier HOS regulations, drivers are permitted to restart their duty time calculations whenever they take at least 34 consecutive hours off. Limiting this restart to once a week prevents drivers from working more than 70 hours per week.
• The rule mandates that the 34-hour restart period must include at least two periods of time between 1:00 and 5:00 a.m. (measured by the driver’s home terminal time) to increase the driver’s opportunity to sleep.
• The rule also requires that the drivers spend no more than 8 consecutive hours (compared to 7 hours in the proposed rule) on duty without taking a break lasting at least 30 minutes before driving. This break time may include meal breaks, time in the sleeper berth, or any other off-duty period. In response to comments on the proposed rule, the agency makes an exception for commercial motor vehicles (CMVs) carrying certain explosives. These drivers are permitted to count on-duty time spent attending the truck carrying the explosives as part of the mandatory 30-minute break, so long as they do no other work during that time.
• The rule revises the definition of “on-duty time” by excluding from that definition any time spent resting in a parked CMV or up to 2 hours spent resting in the passenger seat of a moving CMV immediately before or after spending at least 8 consecutive hours in the sleeper berth. This change applies to passenger-carrying vehicle drivers as well.
• The rule defines and establishes penalties for egregious violations of the HOS rule. Specifically, driving or allowing a driver to drive a CMV for 3 or more hours beyond the 11-hour limit can be considered an egregious violation of the rule subject to civil penalties. Employers will face a maximum penalty of up to $11,000 per offence; drivers up to $2,750 per offense. This penalty provision also applies to passenger-carrying vehicle drivers.
• The rule revises HOS provisions applicable to drivers involved with oilfield operations. Specifically, the rule makes certain technical clarifications to the time recording requirements for these drivers. "Waiting time" for certain drivers at oilfields must be shown on logbook or electronic equivalent as off duty and identified by annotations in "remarks" or a separate line added to "grid."

The rule’s changes to “on duty time” as well as to the oilfield provisions take effect 60 days after the rule is published in the Federal Register. All other portions of the rule are scheduled to take effect on July 1, 2013. The Agency noted that, generally, when implementing safety rules, it prefers to set shorter compliance dates. However, in this case, the Agency acknowledged, as many others pointed out, that industry and law enforcement may need extra time to train personnel and to adjust schedules and automated systems. The Agency concludes that the rule will mainly affect drivers who work more than 70 hours a week on a continuing basis, who are mostly a subset of long-haul truckload drivers.

 If you or your trucking company have questions about Hours of Service violations or questions about compliance with these regulations, the attorneys at the law firm of Bostwick & Price, P.C. are available to answer your questions and concerns. www.bostwickprice.com

Texting and Driving

On January 26, 2010, U.S Transportation Secretary Ray LaHood announced federal guidance to expressly prohibit texting by drivers of commercial vehicles such as large trucks and buses.  The prohibition is effective immediately and is the latest in a series of actions taken by the Department to combat distracted driving since the Secretary convened a national summit on the issue last September.

“We want the drivers of big rigs and buses and those who share the roads with them to be safe,” said Secretary LaHood.  “This is an important safety step and we will be taking more to eliminate the threat of distracted driving.”

The action is the result of the Department’s interpretation of standing rules. Truck and bus drivers who text while driving commercial vehicles may be subject to civil or criminal penalties of up to $2,750.

"Our regulations will help prevent unsafe activity within the cab,” said Anne Ferro, Administrator for the Federal Motor Carrier Safety Administration (FMCSA). “We want to make it crystal clear to operators and their employers that texting while driving is the type of unsafe activity that these regulations are intended to prohibit."

FMCSA research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting.  At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road.  Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers.  Because of the safety risks associated with the use of electronic devices while driving, FMCSA is also working on additional regulatory measures that will be announced in the coming months.

During the September 2009 Distracted Driving Summit, the Secretary announced the Department’s plan to pursue this regulatory action, as well as rulemakings to reduce the risks posed by distracted driving. President Obama also signed an Executive Order directing federal employees not to engage in text messaging while driving government-owned vehicles or with government-owned equipment.  Federal employees were required to comply with the ban starting on December 30, 2009.

If your trucking company is facing a heavy penalty for a traffic violation or a texting while driving citation, the Utah transportation law attorneys at Bostwick & Price, P.C. have the experience to provide the best defense possible. Our transportation law attorneys are ready to provide your trucking company with the legal representation it deserves. www.bostwickprice.com

Cargo Claims

Claims for loss and damage of regulated commodity is governed by the regulations published at 49 C.F.R. §370. Claims for loss, damage, or overage should be filed in writing. The bill of lading together with documentation of the destination market value of the goods should be included. Most bills of lading specify that the claim must be filed within 9 months. A shipper has 2 years after the claim is denied to file a suit to recover its loss. 

The Carmack Amendment, 49 U.S.C. §14706, provides the shipper with the statutory remedy which preempts state law remedies. Subject to the exceptions noted herein, if a shipper can prove that the carrier received the shipment in good condition and delivered it short or damaged, the carrier is liable for the loss regardless of whether the shipper can prove the carrier was negligent. As a practical matter, the statute makes the notations entered on the bill of lading at time of pickup and delivery particularly important. A clear bill of lading at time of pickup accompanied by a bill of lading noting shortage or damage creates a presumption of carrier liability which must be overcome by carrier proof.

Importantly, the statute and its preemptive effect works to the benefit of the carrier with respect to so-called special or consequential damages. Under Carmack and the common law, a carrier is not liable for damages which are not reasonably foreseeable. Carriers ordinarily are not required to deliver in time to meet any specific market and unless the carrier assumes greater liability by contract, it is not required to pay for air express replacement parts, waiting construction crews, stopped assembly lines, etc.

There are 5 common law exceptions to carrier liability:

(1) act or default of shipper;
(2) an act of God;
(3) the public enemy;
(4) the "public authority"; or
(5) the inherent vice of the commodity.

The act of default of shipper is most often raised when the carrier claims the lading was improperly packaged to withstand the ordinary perils of transport or when the carrier claims that the shipper improperly blocked or braced the shipment (see shipper load and count, infra).

The act of God defense is applicable only when a hurricane, tornado, flood, mud slide or other calamity beyond the carrier's control is the proximate cause of the loss or damage claimed.

The public enemy exception has rarely been used in the United States or Canada because it applies only to acts of military forces or possibly paramilitary insurgency. The courts have declined to classify thieves, robbers, or rioters as "public enemies" for purposes of this exception and to date, there has been no finding that the organized cargo thefts in Miami or Los Angeles can operate to excuse a carrier from liability.

The Public Authority exception includes policy action such as quarantines, road closures, etc.

Finally, a substantial amount of cargo claims litigation revolves around the shipper load and count exception in the Bill of Lading Act. See 49 U.S.C. §80113. This statutory provision says that a carrier is not liable for loss and damage (1) when the goods are loaded by the shipper, (2) when the bill notes "shipper's weight, load and count" or words of similar meaning, and (3) when the carrier does not know whether any part of the goods were received or conformed to that description.

Similarly, carriers are not liable for damage resulting from improper loading when the shipper loads the goods and words such as, "Shipper's weight, load and count" indicate that fact.

The shipper load and count provision should apply to all situations in which the shipper loads a spotted trailer and the carrier is unable to verify the count or the condition of the load. To be relieved of liability for short count at destination, the carrier needs to ensure that the shipment is sealed at point of origin before the truck leaves the dock, and that the term "SLC" or other clear language of shipper liability is included.

In our Utah transportation law practice, we understand that shortages and thefts of high value goods are some of the most troublesome cargo issues facing our clients. Only by careful use of the shipper load and count provisions, the purchase of broadly worded cargo coverage, and coextensive release rates, can carriers adequately protect themselves against significant exposure if high value items are handled.

The inherent vice defense has been defined in the landmark Missouri Pacific R.R. Co. v. Elmore & Stahl, 377 U.S. 134 (1964) case as "any existing defense, disease, decay, or other inherent nature of commodity which will cause it to deteriorate with a lapse of time."

If your trucking company is facing a cargo claim, the Utah transportation law attorneys at Bostwick & Price, P.C. have the experience to provide the best defense possible. Our transportation law attorneys are ready to provide your trucking company with the legal representation it deserves. www.bostwickprice.com