For The Defense, December 2011 - DRI Today

FMSCa evaluation, from page 77 Smith v. N. Dewatering, Inc., 2004 U.S. Dist. tions, motor carriers must proactively seek
loading and sealing the cargo, especially Lexis 2648, at *6 (D. Minn. Feb. 19, 2004). the ability to inspect, verify, and potentially
when a motor carrier will haul a hazard- However, despite this, in many cases a even load the cargo that they will ship.
ous material. Also, contracts often prohibit shipper is the entity that loads and secures
a motor carrier’s employees and drivers the cargo, leaving the motor carrier to take Conclusion
from breaking the cargo seal. However, the the majority of blame for any related negli- In conclusion, the CSA program involves
CSA methodology still holds the motor cargence. Law enforcement may break a cargo comprehensive data gathering and measurrier
accountable for load securement viola- seal to inspect it, and if an officer finds ing methodology to evaluate and rate each
tions or anything else that the shipper did violations, a motor carrier’s BASIC score individual motor carrier based on its per-
incorrectly.
may increase due to the shipper’s failure. formance in many different fields of safety
Federal regulations “place the burden of And in cases involving hazardous material compared with relevant peers. However, it
load securement upon the carrier. See 49 releases, the potential for punitive damages will make more data available to the public
C.F.R. §§390–393 (2002). These regulations may be high.
and to plaintiffs’ attorneys than in the past,
require carriers to inspect whether cargo Dr. Gillette believes that in the future so motor carriers must proactively monitor
is properly distributed and adequately many motor carriers may seek contractual their own safety status, immediately inves-
secured both before driving a truck and requirements permitting their drivers to tigating violations and crashes and taking
during transport. (See 49 C.F.R. §392.9(b); physically inspect cargo before agreeing to corrective action. Properly investigating
Smart v. Am. Welding & Tank Co., 149 N.H. transport loads, or they many seek adden- and responding to safety concerns, will
536, 826 A.2d 570, 573–74 (N.H. 2003)). dums to contracts to protect themselves. permit motor carriers to combat attempts
Thus, under federal law, responsibility for Since federal law holds motor carriers to use the tools and conclusion of the CSA
improper loading generally rests with the responsible for load- securement shipper against them in litigation.
carrier, even if the shipper loads the cargo.” negligence and other cargo- related viola-
Mexico, from page 65
ipated in the 2007–2009 Demonstration
Project are to be exempt from
payment of the application fee.
2. All Mexican- domiciled motor carriers
that wish to participate in
international freight cross- border
trucking services in the U.S. are to
undergo a Pre- Authorization Safety
Audit (PASA) performed by FMCSA,
in accordance with Title 49 of the
U.S. Code of Federal Regulations
(CFR), Part 365, as may be amended.
The PASA will include the following,
in addition to any other requirements
set out in the Federal Motor
Carrier Safety Regulations (FMC-
SRs): …
Id. at Annex 1.
Annex 1 continues in some depth, establishing
driver national security and criminal
background checks, exclusion criteria
set forth by the U.S. Customs and Border
Protection of the U.S. Department
of Homeland Security, communication
between the parties’ security agencies,
record inspection and review regarding
performance data and safety management
programs, alcohol testing, compliance with
hours- of- service rules, and other regulations
that U.S. trucking companies must
abide by.
84 ■ For The Defense ■ December 2011
On its face the 2011 MOU appears to regulate
Mexican truck drivers and companies
using safety and reporting obligations recognized
by the U.S. Department of Transportation.
See id.
The Impact of the 2011 MOU
on Safety and Small
Trucking Businesses
As the borders become easier for Mexican
trucking companies to cross, so too
will it become easier to overcome the hurdles
that have hindered efficiently transporting
and shipping Mexican products
to the United States. Trucking analysts
on all sides have expressed opinions on
the effect that the 2011 MOU will have
on small trucking companies. Not surprisingly,
perhaps the loudest argument
against cross- border trucking has foreseen
danger to the American worker and small
business owner, using the oft-raised specter
of cheaper Mexican labor undercutting
its American counterpart. They argue
that this will result in, among other things,
American workers losing jobs to Mexican
trucking, or lowering wages for American
workers. The AFL-CIO, the largest federation
of unions in the United States, for
example, views it as unfair to U.S. workers
and corporations unless the pilot program
added provisions that would require signa-
tory countries to adjust wages upwards and
raise labor and environmental standards.
Does that argument hold water? Supporters
of NAFTA and cross- border trucking
will say no, even though U.S. employment
rose from 110.8 million people in 1993 to
137.6 million in 2007, which roughly covers
the period during which NAFTA took effect
and its originally scheduled full implementation,
an increase of 24 percent. But the average
unemployment rate was 5.1 percent
from 1994–2007, compared to 7.1 percent
from 1980–1993. Additionally, U.S. business
sector real hourly compensation rose
by 1.5 percent each year between 1993 and
2007, for a total of 23.6 percent over the full
period. During 1979–1993, the annual rate
of real hourly compensation rose by only .7
percent each year, or 11 percent over the full
14-year period. See NAFTA Facts, NAFTA—
Myth vs. Fact, supra.
Another common argument against
Mexican cross- border trucking is that
Mexican safety standards do not match
those of domestic carriers, thereby making
them unsafe, or at the very least, less safe
than American trucks. Opponents argue
that Mexican trucking companies have
lower safety standards, employ “more dangerous”
drivers, do not have proper insurance
policies, and could become a source
of increased congestion and accidents on