| |
TRANSTRENDS MONTHLY NEWSLETTER- November 2005
11/01/2005
A PUBLICATION OF THE TRANSLAW GROUP, INC.
EDITOR: JAMES M. BURNS
48 ROBBINS ROAD, SPRINGFIELD, MA 01104
TOLL FREE 800 637 0754
TEL 413 732 8588
FAX 413 732 8553
EMAIL: informatioverett-associates.com
IN THIS ISSUE
1 Fuel Line
1 No Skid Zone
2 Boston to Tow
3 Trucking Dangerous
6 Starbucks
7 Jersey Pike For Sale
7 Georgia Tryst
8 Sophisticated Shipper
NEWS ALERT - Don’t forget …
Renew 19th series NY HUT permits
Renew IFTA decals, all jurisdictions
Renew Single State Registrations, all jurisdictions
FUEL LINE
Each issue we will feature as the first item the FUEL LINE which will alert you to those states that are planning tax increases, toll hikes and other fees.
WHAT CAN BE SAID: The price of fuel continues to be an issue and most of the states are reluctant to increase the tax placed on fuel. Just remember to take advantage of the fuel surcharge provisions and make sure that you assess a surcharge to cover the fluctuations in the cost of fuel.
NO SKID ZONE
Bill O’Reilly may have the “No Spin Zone” but the Translaw Group has the “No skid Zone”. Each issue will highlight the absurdity of a particular rule, regulation, law or government action that just doesn’t make common sense.
SIMON SAYS BRIDGE OVER TROUBLED WATERS
An argument broke out in Congress the week of Oct. 16 over some controversial funding for Alaska that was passed in the Highway Bill earlier this year.
The Seattle Times reported that Sen. Tom Coburn, R-OK, tried to block $453 million earmarked for two bridges in Alaska – one of which, dubbed the “Bridge to Nowhere” has generated much controversy because it would cost millions of dollars and connect to an island of only 50 people that is correct, sir, 50 people.
Coburn instead proposed a measure that would allow use of the money to rebuild the Interstate 10 bridge across Lake Pontchartrain, which was severely damaged by Hurricane Katrina and used by many thousands of people each day.
Proving that it takes a real politician to settle a debate in a rational and adult manor, Republican and Alaskan Sen. Ted Stevens, lashed out at Coburn, claiming that the move was discriminating against the state of Alaska.
“I don’t kid people,” Stevens said. “If the Senate decides to discriminate against our state ... I will resign from this body.” Stevens instead proposed a measure that would hold funding for all bridges around the country until work on I-10 was complete. Both measures were voted down. Stevens wasn’t the only Alaskan politician upset about the Coburn proposal. Republican Rep. Don Young, who championed the building of the second Alaskan bridge – which will be called, and you guessed it right… “Don Young’s Way,” was also bothered.
The Times said a reporter asked Young about the apparent support of the Alaskan public for shifting the bridge money to Louisiana. Young responded by revealing his true feelings on the matter. “They can kiss my ear,” Young said. “That is the dumbest thing I’ve ever heard.” We believe that Senator Young really had another part of the anatomy in mind for people to kiss.
BOSTON POLICE ORDERED TO ISSUE MORE TICKETS
He says it’s not a quota, but Boston Police Superintendent Robert Dunford is requiring officers to increase the number of parking and traffic tickets issued in the city. We say if it quacks like a duck, looks like a duck and walks like a duck it probably is just that, a duck!
Dunford told The Boston Globe that his new directive – which he gave to police captains at a meeting last week – is not a quota system, since it doesn’t require specific numbers of tickets. “This is just basic community policing,” he said. He apparently wants more tickets issued and when is “more” tickets enough?
Dunford also denied that the mandatory ticket increase was designed to help lagging police revenues. Instead, he pointed out a drastic drop in the number of tickets issued in the city from more than 12,000 in June to about 9,100 in September. Perhaps Bostonians are just getting better at driving and parking.
CHICAGO TRUCK SCANDAL CREATES LAWYER SHORTAGE
You wouldn’t think there’d be a lot of complaining about a shortage of lawyers, but public officials and others embroiled in Chicago’s ongoing Hired Truck scandal are concerned about just that. Apparently there is a shortage of lawyers who can proficiently handle public corruption cases. We know there is a shortage of such lawyers in Springfield, MA.
The Chicago Sun-Times reported that, with 36 people charged and 23 guilty pleas in the federal investigation so far, those involved are having a hard time finding experienced lawyers who can take on their cases.
The Sun-Times said that some of the best lawyers were taken early by city officials who are yet to be charged and hope they never will be. We trust that those lawyers who are being held in abeyance are on healthy retainers.
The trouble is, once a lawyer from a firm is representing someone involved in the investigation; other lawyers at that firm are discouraged from representing clients involved in the same investigation for fear of conflict between clients.
PAINT POSES PROBLEM FOR PARKERS
So you think truckers are the only ones who have problems parking in New York City. Many residents on one New York City neighborhood have been towed for parking in what they thought were legal parking spaces.
In the West Village neighborhood of New York City, the city’s Department of Transportation painted white lines for parking spaces all along Washington Street – some of which were illegally close to fire hydrants. According to local CBS affiliate WCBS-TV, many residents have had their cars towed for parking in those marked spots. Fines for parking within 15 feet of a fire hydrant in New York City can be as much as $115, plus the expense of the tow.
The New York City DOT has known about the problem for years but has refused to do anything about it. Apparently, they enjoyed the revenue generated by the illegal parking spots and saw no incentive to correct the problem until the local CBS affiliate got involved. Now the NYCDOT told WCBS that the problem would be taken care of by October 16. Quick action after many years of inaction.
TRUCKING MAKES TOP 10 ‘MOST DANGEROUS JOBS’ LIST
Unlike many surveys, this is one where not being ranked No. 1 is a good thing. The Bureau of Labor Statistics recently released its latest census of fatal occupational injuries, including the list of Top 10 most dangerous jobs according to fatality rate.
While nearly a quarter of all fatal work injuries in 2004 occurred among workers who drive or move material around for a living – which includes everything from truck drivers to forklift operators – truck driving itself ranked as the ninth most dangerous job.
It should be noted, however, that the truck driving category includes both truck drivers and driver-sales workers – including pizza delivery drivers, vending machine fillers, etc. In 2003, those were ranked as separate categories, and truck driving came in at No. 10 on the list while driver-sales workers came in at No. 5. Overall, transportation and material moving occupations accounted for 1,490 work related fatalities in 2004, up from 1,393 in 2003.
There were 5,703 job-related fatalities in 2004, up from 5,575 in 2003. Of those, 1,374 were highway accidents on the job. That’s up from 1,353 in 2004. Truck drivers had 904 fatalities in 2004, which equates to a fatality rate of 27.6 deaths per 100,000 workers. There were 808 truck driver fatalities reported in 2003.
Logging was the most dangerous occupation. Though there were only 85 total fatalities, there are fewer loggers than truckers, so the statistical death rate was much higher at 92.4 deaths per 100,000 workers.
The Top 10 most dangerous by fatality rate jobs are:
· Logging workers, 92.4 per 100,000
· Aircraft pilots, 92.4 per 100,000
· Fishers and fishing workers, 86.4 per 100,000
· Structural iron and steel workers, 47 per 100,000
· Refuse and recyclable material collectors, 43.2 per 100,000
· Farmers and ranchers, 37.5 per 100,000
· Roofers, 34.9 per 100,000
· Electrical power line installers/repairers, 30 per 100,000
· Driver/sales workers and truck drivers, 27.6 per 100,000
· Taxi drivers and chauffeurs, 24.2 per 100,000
OOIDA SEEKS NEW FUEL SURCHARGE LEGISLATION
The Owner-Operator Independent Drivers Association is launching a new campaign to get fuel surcharge legislation introduced in Congress. This time, however, the approach is a bit different. Todd Spencer, executive vice president of OOIDA, said that the previous fuel surcharge legislation that was cut from the Highway Bill earlier this year would have made a fuel surcharge mandatory.
Spencer said the new legislation, known as the Fairness In Trucking Transactions Act, or FITT, would require that if a surcharge is assessed and is paid by the shipper, then that surcharge must be passed through in its entirety to the person who paid for the fuel.
“On most shipments, a fuel surcharge is already collected,” Spencer said. “In most instances it doesn’t get through to the person who pays for the fuel.”
In addition, the legislation would require an accounting of any and all fees paid by the shipper to all parties involved in the transaction. Spencer said this would shed light on transactions and allow everybody to see exactly who gets the money and where it went. There are already regulations in place that allow for the full disclosure of billing practices of motor carriers that engage owner operators but nobody pays any attention to them and we at the Translaw Group are pretty sure that no one will pay any attention to these regulations if they are passed.
RELATED ITEM…
Many carriers may not know that they are currently bound by regulation to provide the billing information to each owner operator as evidenced at 49 376.12 (g), reproduced herein.
Currently, a carrier is duty bound to tell an owner operator if a fuel surcharge was collected on a shipment that was handled by the owner operator. The fuel surcharge information would or should be available for the owner operator to review.
§376.12 Written lease requirements.
(g) Copies of freight bill or other form of freight documentation — When a lessor’s revenue is based on a percentage of the gross revenue for a shipment, the lease must specify that the authorized carrier will give the lessor, before or at the time of settlement, a copy of the rated freight bill or a computer–generated document containing the same information, or, in the case of contract carriers, any other form of documentation actually used for a shipment containing the same information that would appear on a rated freight bill. When a computer–generated document is provided, the lease will permit lessor to view, during normal business hours, a copy of any actual document underlying the computer–generated document. Regardless of the method of compensation, the lease must permit lessor to examine copies of the carrier’s tariff or, in the case of contract carriers, other documents from which rates and charges are computed, provided that where rates and charges are computed from a contract of a contract carrier, only those portions of the contract containing the same information that would appear on a rated freight bill need be disclosed. The authorized carrier may delete the names of shippers and consignees shown on the freight bill or other form of documentation.
HOT VOCATIONAL TRUCK MARKET FANNED BY HURRICANE CLEANUP
The mountains of wreckage that Hurricanes Katrina, Rita and now Wilma left behind along the Gulf Coast added to the hottest-ever market for heavy-duty vocational trucks, creating an air of urgency to the production of the vehicles required to haul the debris away, according to industry experts.
Truck makers said dealerships in the Gulf were scrambling to provide the vehicles, including dump trucks, refuse haulers and roll back carriers used for towing. The Army Corps of Engineers said debris from the storm is equal to about 300 football fields piled 50 feet high. By other estimates, Katrina left behind 55 million cubic yards in southeast Louisiana alone — enough to fill 3.5 million dump trucks. What would be the fuel surcharge on that movement?
SAFETY GROUPS SPIN STATS IN PRESS CONFERENCE
A group of highway safety advocates held a press conference in Washington, DC, Monday, Oct. 17 including The Public Citizen, and joined by The Truck Safety Coalition, Citizens for Reliable and Safe Highways and Tired Truckers rolled out their list of the “most lethal states” for truck crashes.
The top “winners” were Wyoming, followed by Arkansas, Alabama, West Virginia, Mississippi, Kansas, New Mexico, Oklahoma, Kentucky and Georgia.
Data used to compile the list was taken from the Fatality Analysis Reporting System. This system details types of vehicles involved, if alcohol was a factor, and time and location of the fatality. It does not report statistics as to who was at fault when a fatality occurred. Conspicuously absent from the data presented – being used to highlight the dangers of fatigued truck drivers – was FMCSA Administrator Annette Sandberg’s statement that only 5.5 percent of all truck-related fatalities are fatigue related.
Several U.S. studies, including a study for the AAA Foundation for Traffic Safety, suggest truck drivers are not at fault 70 percent to 80 percent of the time when there are fatal car-truck collisions. The safety groups’ press conference was held to encourage Congress to “resist industry pressure to weaken (the) hours-of-service rule.”
The groups also claimed the new hours-of-service regulations are not even being enforced, which is a misstatement of FMCSA’s soft-enforcement approach. It is widely known that the hard enforcement of the rules will take place on January 1, 2006 which allows for the industry and law enforcement personnel to become familiar with the new rules without penalty for the phase-in period. In fact several states in the Northeast are still training enforcement personnel with respect to the new regulations.
DISTRACTED DRIVING MEASURE SOUGHT IN MASSACHUSETTS
A bill in the Massachusetts statehouse would forbid drivers from watching television and videos while behind the wheel. We at the Translaw Group did not realize that the boob tube presented that much of a problem with drivers on the road. In fact, we have never seen anyone watching Oprah or Dr. Phil while “zipping” down the road.
Current state law already prohibits drivers from watching any device that receives a television broadcast if it’s located in front of the back of the driver’s seat or is visible to the driver – regardless of whether the device interferes with safe driving. The bill, sponsored by Sen. Jarrett Barrios, D-Cambridge, would amend the law to prohibit drivers from watching any device capable of displaying “a television broadcast or video feed” that is located within the driver’s view.
The restriction wouldn’t apply to dashboard readouts or other displays of information about a vehicle’s operation or conduct, such as a GPS screen, however, the numerous small handheld type “things” or what ever you call them would fall under the new law, and, we cannot understand why someone would want to watch TV broadcasts from any type of handheld device when you consider the screen is only 2 and one half inches square.
STARBUCKS PERKS UP INTERSTATE COFFEE MARKETS
Traditional truck-stop coffee is exactly that – traditional and probably more akin to engine oil after a change. Now comes Starbucks the trendy dispenser of java attempting to lay claim to a share of the traveling publics’ coffee dollar.
Starbucks has traditionally maintained facilities in the more genteel locales but now are heading for the “common” man’s dollar bill or shall we say five dollar bill.
In fact, Starbucks is opening an outlet just down the street from the Translaw Group. That either means we are now in a “trendy upscale” neighborhood or simply put, just in another spot along the Interstate. Currently, Starbucks has about 7,000 retail stores located in all 50 states. With their expansion into rural and roadside markets, however, chain officials plan to more than double that to 15,000 stores within the next few years, according to the company’s Web site.
At the moment, the project is in its test phase. The first roadside Starbucks – complete with 50-foot-tall green sign wedged proudly amongst a Waffle House, a McDonald’s and a Flying J truck stop – has opened its doors and drive-through window along Interstate 20 near Oxford, AL. We can only imagine how long you will have to wait in the drive-up line for a Tazo® Green Tea Frappuccino® Blended Crčme with Melon Syrup with Skim Milk. What ever happened to the 5 cent cup of coffee.
LOCATION, LOCATION, LOCATION.
NEW JERSEY TURNPIKE COULD BE UP FOR SALE
Now is the time to make a great real estate investment. The New Jersey Turnpike is rumored to be on the auction block. Officials in New Jersey are studying how to replenish the cash-strapped Transportation Trust Fund, the state’s biggest source of road funding. One option being bounced around is selling the New Jersey Turnpike Authority, owner of the turnpike and the Garden State Parkway, according to Bloomberg News.
“People are looking seriously at selling the turnpike because gasoline prices are making a large gasoline tax increase politically more difficult,” said Damien Newton, the New Jersey coordinator for the Tri-State Transportation Campaign, which advocates for regional transportation improvements. What could be a better cash cow than a bunch of toll booths picking the pockets of the traveling public?
The 148-mile New Jersey Turnpike runs from the Delaware Memorial Bridge in the southern portion of the state to the George Washington Bridge. The turnpike and 173-mile parkway generate $716 million in toll revenue annually. It is estimated the state may make $22.5 billion from selling the authority. It is reported the state would need a 20-cent increase in its fuel tax to finance its transportation needs.
TRYST 101
GEORGIA CLOSES REST STOP
Anyone driving Interstate 85 between Atlanta and Gainesville, GA, may want to take a rest stop while they can. Then again, maybe it’s best to just keep moving. On Oct. 31, the Georgia Department of Transportation will close a rest stop along the Interstate near Suwanee, which is located about midway between Atlanta and Gainesville.
However, the reasons for that closure depend upon whom you ask.
In a news release, GDOT cited money and safety concerns as its main reasons for closing the stop at the convergence of two highways that has created a safety hazard. However, according to The Associated Press, the rest stop is closing over another type of hazard altogether. The AP says it’s a haven for petty crime, prostitution and sexual trysts, and, just what is a tryst. It sounds rather innocuous. Webster’s says it is an arrangement to meet, a secret meeting. We think it means more than just meeting.
The Suwanee Police Department and GDOT have carried out numerous undercover stings at the rest stop and have made several arrests for indecent exposure. Now we are getting a clearer picture of what a tryst is all about.
Capt. Clyde Byers of the Suwanee Police Department told The AP most of the people that were using the rest stop were locals. “The majority of the people who congregated there had Gwinnett County license plates – these were not motorists who were just passing through,” he said. “If you live in a county, why would you spend your time hanging out at a rest area there?” Apparently for a tryst Captain Byers.
SOPHISTICATED SHIPPERS – WHO ARE THEY?
Since the sun-setting of the Interstate Commerce Commission we often hear the term “sophisticated shipper” used in conjunction with freight claims. What does it mean?
Generally, the courts have held shippers to be “sophisticated” and therefore responsible for their actions when the shipper is a commercial enterprise and is capable of understanding the documents it signs. In other words, the courts are holding shippers responsible for knowing the law.
Deregulation was supposed to create a more competitive motor carrier/shipping industry, however, like many industries; companies often downsize and cut back staff resulting in a loss of talent in the shipping area. This can translate into a “less sophisticated” traffic department, but, the shipper is still charged with being a sophisticate shipper and fully responsible for compliance with all rules and regulations.
The following actual cases demonstrate the pitfalls of a shipper assuming a set of circumstances and trying to plead “ignorant” of applicable law. It just doesn’t work!
UNAUTHORIZED UNLOADING DOES NOT UNDERMINE LIMITATION OF LIABILITY
Lars T., Ltd. v. New Penn Motor Express, Inc., 2000 U. S. Dist. LEXIS 12254 (D. Maine 2000)
It’s a pretty straightforward limitation of liability case, this time in the context of a shipper who hired a carrier to move a 150-pound engine. The only real issue in this case was whether use of a front-end loader by the carrier’s driver without authorization from the shipper somehow nixed the carrier’s entitlement to limited liability. Finding that the loading still was “related to the movement of the plaintiff’s property”, which was enough to keep the carriage within Carmack, the court didn’t give much credence to the shipper’s laments.
The shipper tried to claim the carrier’s bill of lading was ambiguous and that fifty cents a pound was unreasonable as a limited amount. These arguments didn’t fly either. The carrier carried the day.
TRANSTRENDS is published monthly for friends and clients of the Translaw Group, Inc. The information provided in this newsletter is not intended as specific advice on a particular subject. Rather, the information is for general edification. Further, this information is time sensitive and may need to be revised and updated from time to time. Please feel free to call this office with your specific questions at 413 781 8205, or you may e-mail the office at jburnransregs.com
|
