When is dispatch unreasonable?

U.S. Citizenship and Immigration Services (USCIS) has changed the Employment Eligibility Verification Form (I-9). The revised version of Form I-9 with “Rev. 06/05/07 N” printed on the lower right corner of the form now must be used. For more information, go to www.uscis.gov.

Delta Nu Alpha, a national transportation fraternity dedicated to the training and education of young transportation professionals, is conducting a series of monthly webinars on legal and regulatory issues February through November this year. The cost is $25 each per webinar for DNA members and $50 each for nonmembers. For more information on schedule and registration, go to www.deltanualpha.org.

U.S. Court of Appeals for the Ninth Circuit sent back to a district court for reconsideration the lower court’s initial rejection of UPS’s policy of requiring that its package-car drivers meet Department of Transportation hearing standards that are mandated for drivers of higher-weight vehicles. The appeals court said that the company’s “reliance on the government safety standard with respect to other vehicles in its fleet should be entitled to some consideration as a safety benchmark” and left it to the lower court to determine whether non-DOT package cars share significant risk characteristics with larger trucks.

Allied Waste Systems must comply with an arbitrator’s award reinstating a driver following a safety incident, the U.S. Court of Appeals for the Sixth Circuit ruled. The appeals court ruled that the district court had no basis for vacating the arbitrator’s award.

QWe have customers who require us to make on-time deliveries that cannot be made in accordance with the hours-of-service requirements. When the deliveries are not kept, we are told to reschedule the appointment in two weeks, storing the goods for no charge; to pay a penalty; or to incur a cargo claim for a missed market. In this context, what does the term “reasonable dispatch” mean, and what are our options as a carrier?

AThe term “reasonable dispatch” is a common law term defining the customary and ordinary obligations of a carrier to transport shipments. The term is found in the uniform and standard bills of lading, and it is accompanied by language that:

“No carrier is bound to transport said property in time for any particular market or otherwise than with reasonable dispatch.”

Under traditional cargo liability concepts, a carrier may be held liable for inordinate delay. But in the absence of acceptance of liability for special and consequential damages, a carrier is not liable for a missed appointment.

Typically, regular-route general commodity carriers have transit time holding out between terminals or locations, offering second- or third-morning service between defined points, but offering no guarantee of service or penalty for deliveries that are one or two days late.

Truckload carriers, absent relays or payment for team service, considered reasonable dispatch to be the distance a single driver could cover under the federal government’s hours-of-service requirements, with allowances for weather, congestion, etc. Trucks break down, drivers get sick, and other delays in transit occur, but carriers were not required to make particular delivery windows. They historically expected to be unloaded upon arrival during ordinary business hours.

Fresh produce always has been an exception to these general rules. Shippers typically insist that drivers keep tightly scheduled delivery under peril of shipment rejection and freight charge deduction for the cost of cover. More recently with deregulation, dock congestion and contractual waivers of Carmack, truckload carriers of regulated commodities are seeing the kind of delivery abuses you mention. If you are transporting time-dated material, construction site equipment, automotive parts to a production facility or other shipments you know are time-sensitive, you should exercise special care to either disclaim responsibility for missed delivery appointments or carefully measure your transit time and ensure you have options for repowering the loads in transit if there is a delay.

In general, however, I think truckload carriers face unreasonable expectations for on-time deliveries. In the air freight and expedited industry where shippers pay a premium for exclusive use, expediters do not accept special or consequential damages for delay in transit. Even expedited parcel services offer de minimis rebates if they do not keep their guaranteed deliveries.

On the other hand, carriers sometimes should expect more from shippers and receivers. Delivery appointments are intended to facilitate loading and unloading shipments and to avoid delay and congestion for shippers and carriers alike. If a carrier is to provide reasonable dispatch to make an appointment delivery, the consignee should provide reasonable unloading opportunities upon arrival. Clearly, GPS technology affords both parties the opportunity to mitigate any damage caused by unforeseeable delays.

Finally, there is a question of safety hidden in this issue. A shipper should not demand delivery quicker than the hours of service permit, and a truck driver never should be told to exceed the hours of service or drive when tired because of some artificially imposed shipper or consignee deadline. As a carrier, you cannot “require or permit” your drivers to exceed the hours of service, and enterprising members of the plaintiff’s bar would like nothing better than to show that you and your deep-pocket shipper conspired to require the driver to speed or drive tired to keep appointments that did not meet the “reasonable dispatch” standard.

FedEx defends contractor classification
FedEx Corp. said last month that it was preparing to meet with the Internal Revenue Service’s audit team in the spring to review the agency’s Dec. 20 assessment that owner-operators at FedEx Ground are actually employees and not general contractors. The assessment follows union challenges by the Teamsters, which FedEx also has lost so far.

“FedEx recognizes its ground-contractor model faces challenges on several fronts,” said Fred Smith, chairman. “We continue to aggressively address these issues, and we have strong defenses to these challenges.”