DC Velocity - February 2017

42 DC VELOCITY FEBRUARY 2017 www.dcvelocity.com
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name appears on the bill of lading, rather than on the carrier in physical control of the goods. Dealing with two different carriers could delay the recovery of a loss-and-damage claim should the carrier that caused the damage argue that the shipper must pursue the carrier listed on the contract, according to industry experts.

Another change shortened the nine-month window for filing a claim on a loss by starting the clock from the bill of lading date, instead of from a reasonable time after delivery should have taken place.

Altering the deadline for filing a claim before it is time-barred would hurt shippers that generally want the expiration date to be as late as possible so they have more time to investigate the incident, shipper advocates say. “I’ve been involved in claims on both sides that turn on whether or not a shipper has made a timely claim,” said Marc S.

Blubaugh, a Columbus, Ohio-based lawyer at Benesch, Friedlander, Coplan & Aronoff.

The cumulative changes will affect millions of shipments
that move under the uniform bill of lading. Though LTL
carriers account for most of NMFTA’s membership, truck-
load carriers are also in the group. In addition, many parties
rely on terms of the uniform bill even if they are not part of
NMFTA, according to Blubaugh. The changes have “broad
implications for shippers, brokers, and carriers involved
in truckload as well as less-than-truckload
shipments,” he said.

IN THE DEAD OF NIGHT

The NMFTA disclosed its changes with no prior public notification and with no input from stakeholders, according to shipper and broker advocates. The Transportation and Logistics Council, a group of practitioners and attorneys, asked the U.S.

Surface Transportation Board (STB), the agency that oversees what is left of economic regulation of the transportation industry, to block the rules’ implementation. The board denied the request but said it would conduct an investigation to determine if it has the statutory authority to intervene. The matter was still pending as the calendar turned.

NMFTA has argued that the STB has no power to grant relief because there is no agreement in place that falls under its jurisdiction. Opponents, unsurprisingly, disagree with that assessment.

The STB’s involvement in trucking issues has been nearly nonexistent since its forerunner agency, the Interstate Commerce Commission (ICC), was sunset by Congress in 1995 and virtually all the ICC’s motor carrier responsibilities were transferred to the U.S. Department of Transportation. Perhaps the agency’s last notable truck-related action came in 2007, when it stripped rate bureaus of their long-held antitrust immunity to collectively set rates.

NEW RULES FOR A NEW AGE

NMFTA said its changes are consistent with the framework of a modern-day trucking industry, noting that much of the language that was revised last July dates back to 1936. Shippers and carriers today have access to various contractual alternatives to the uniform bill of lading where specific terms and conditions, including those involving liability, can be negotiated, according to the group. What’s more, the uniform bill of lading doesn’t apply to the overwhelming number of truckers operating in interstate commerce because most are not part of the system that NMFTA administers, the group said.

Opponents concede that shippers have contractual alternatives available to them. Yet the majority of shippers still rely on the uniform bill of lading as their contract, they maintain. “Many shippers today are unaware of any other bill of lading and are unaware that they are not required” to use it, the shipper group NASSTRAC told the STB in August. Even shippers who have pursued outside contracts

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