Letters: CSA (Cont’d.), Regulating Safety, Son of Broker Wars, No Horns Please!

More CSA Issues

In response to “Opinion” by James Hardman, I would agree with everything he has said, and I understand how he has come to his conclusion, based on reading articles on CSA rules and regulations (“Don’t Lose Sleep Over CSA,” 8-2, p. 5; click here for previous Opinion piece).

There are, however, a few very important additional issues that have not been addressed. CSA has enacted some rules that, for the first time, affect the driver’s carrier.

One major rule change is that a warning ticket now counts against the carrier.

In nine test states where CSA is being enforced and where special programs were launched that stepped up truck inspections over a short period to look at safety issues, drivers were given warning tickets at a rate that approached almost 50% of the stops. In fact, almost no one was allowed to leave without a write-up, ticket or warning ticket.

There is no way those carriers can receive large numbers of warning tickets that affect their CSA scores and not have it also affect the carrier’s relationship with its drivers.

Another problem is that vehicle stops and inspections have risen considerably. I don’t believe CSA is the reason for the stops by police officers, but I do believe inspections have been greatly increased because of CSA.

In fact, traffic stops on truckers are now at an all-time high of eight times more than their automobile counterparts, according to research by our company.

Drivers who receive traffic citations, go to court and win their cases still will have the violation count against their carrier. Not against their commercial driver license — their carrier.

The fact is that overall traffic stops have greatly increased on truckers because of a lack of operating funds by most municipalities. Most of these traffic stops result in additional detailed inspections.

These facts alone prove that big changes are taking place in the industry because of CSA. More equipment violations are being written, more citations are being written and, for the first time in the history of the trucking industry, everything a driver does counts toward his or her carrier.

Drivers have to worry about more stops, and carriers have to worry about every stop.

Rickey Gooch

Independent/Director

Pre-Paid Legal Services

Nashville, Tenn.

Regulating Safety

I thought the entire focus for highway safety was on driver fatigue, but unfortunately for the truck driver, the regulatory agencies responsible for the law are the ones that are creating the majority of the fatigue.

The National Transportation Safety Board cites hours-of-service noncompliance by trucking companies and drivers as a major factor contributing to driver fatigue.

Take the blinders off, NTSB! It’s your ridiculous attempt to regulate the drivers’ biological clock and nocturnal instinct that is causing the mass fatigue.

You can’t put an over-the-road truck driver in the same work/rest category as other professions. You simply cannot regulate their rest/sleep as you would your own. Your supposedly safety-conscious HOS regulations defeat their very purpose and inadvertently set the driver up for inevitable fatigue and failure.

No doubt, there must be something in place to address and monitor driver hours, but it needs to be set up with parameters allowing the driver to decide how to accumulate hours and when they apply to him or her, not by means of a regulation’s directives. Only the driver knows whether he or she is tired or ready to drive.

The driver needs to be the one who decides how and when to break up the rest/sleep/drive routine.

You can’t regulate an over-the-road driver to your clock.

Lawrence Hartung

Director of Safety

deBoer Transportation Inc.

Blenker, Wis.

Son of Broker Wars

The writer of an Aug. 2 letter headlined “Broker Authority” disagreed with the statement that motor carriers are not, and should not be, allowed to broker freight without a broker license. (Click here for previous letter.) The writer’s arguments ignore the applicable statutes and regulations, and disregard the sound business reasons shippers should never allow a carrier to broker freight.

Thanks to Schramm v. Foster (2004) and several judgments since — including at least one jury award in excess of $20 million — shippers and brokers can be found negligent in the hiring of a motor carrier and liable for injuries to third parties caused by the carrier’s negligence. When a shipper performs due diligence and determines a carrier has a good track record, but the chosen carrier brokers the load to another, unscreened carrier, the due diligence is rendered useless.

The insurance industry increasingly refuses to underwrite unauthorized brokering. Most carrier insurers provide coverage only to vehicles owned, leased or under the control and authority of the carrier. A carrier’s insurance does not cover vehicles owned or operated by any other carrier. Therefore, the writer’s suggestion that a carrier avoids primary liability when it brokers freight leaves shippers and brokers high and dry if an accident causes cargo loss or personal injury.

Various transportation trade organizations have drafted model contracts that all expressly prohibit unauthorized brokering by one carrier to another and prohibit brokers from engaging in re-brokering. Under these agreements, a carrier that brokers freight without proper authority breaches its contract.

But the writer’s argument falls most flat when he says, “Nothing in the statutes or regulations precluded a motor carrier from arranging for the transportation it agreed to provide, the same way a freight forwarder does under the statute.”

First of all, he commingles the definitions and authorities of freight forwarders on one hand and motor carriers on the other. Under the law, a freight forwarder is a common carrier that consolidates freight and arranges transportation using motor carriers with which they have contracts. A motor carrier is defined separately and simply is not a freight forwarder under the law.

Second, the writer contends that a motor carrier arranging freight like a broker is somehow permissible. According to 49 CFR Part 376, motor carriers are prohibited from brokering without a broker’s license. Legitimate interlining or even leasing in accordance with Department of Transportation regulations is not brokering. Interchange regulations are listed clearly in 49 CFR Subpart D, Section 376.31, which says interchange requires that equipment, not just freight, be exchanged between carriers and a written contract or lease executed. Though bills of lading must be “issued by the originating carrier.”

Another requirement is that the specific power units must be identified in accordance with the Federal Motor Carrier Safety Administration’s safety requirements — clearly not brokering.

As for leasing requirements, 49 CFR Part 376.11 states, “Other than through the interchange of equipment as set forth in §376.31, and under the exemptions set forth in subpart C of these regulations, the authorized carrier may perform authorized transportation in equipment it does not own only under” very specific conditions, e.g., the carrier must possess the equipment, a lease must be written, etc. This clearly is not brokering. Nor is anything resembling brokering freight covered in 49 CFR 376.21, general exemptions.

Clearly, carriers are forbidden to broker freight unless they have a license. If a carrier must broker freight it can’t handle with its own trucks, it must obtain a broker’s license, handle the freight under its broker authority and fully disclose this fact to all parties. Let’s leave brokering to licensed brokers; it’s sound risk management and it’s the law.

Finally, I’d like to acknowledge Richard Gluck, counsel/owner of Garvey Schubert Barer, Washington, D.C., for his help with the content of this letter.

Jeff Tucker

Chief Executive Officer

Tucker Company Worldwide

Cherry Hill, N.J.

No Horns, Please!

Is Transportation Secretary Ray LaHood being helpful by suggesting that drivers who see motorists talking on cell phones “give them a honk, or two, or three” (“LaHood Seeks Truckers’ Help to Combat Distracted Driving,” 8-9, p. 1; click here for previous story)?

We should be doing better than that. We do not encourage drivers to “engage” with other motorists. We coach them to avoid any aggressive action — which would include unnecessary horn blowing. Besides, the highways would sound like the World Cup games did with everyone blowing those plastic trumpets.

To quote the Missouri Commercial Driver License Manual: “Use your horn when needed. Your horn can let others know you’re there. It can help to avoid a crash. However, it can startle others and could be dangerous when used unnecessarily.”

We believe the “nation’s safest drivers” deserved better from Secretary LaHood. Let’s not promote honking as a cure for distracted driving, which we do agree is an “epidemic.”

Henry Niles

President

Callaway Carriers Inc.

Kingdom City, Mo.