The current version of the Uniform Straight Bill of Lading (for purpose of distinction to be referred to herein as the “Old” USBOL), and all its terms and conditions, have not been changed in approximately 20 years. However, recently the Surface Transportation Board (STB) ruled to allow drastic changes in all such terms and conditions, as proposed by the National Motor Freight Traffic Association (“New” USBOL). It is important to note that STB, while allowing the New USBOL to take effect, did allow for further comments to be filed by September 12 and October 3, 2016, after which STB will decide whether a further investigation and potential modifications to NMFTA’s New USBOL are appropriate. The shipping public and all who represent them should not wait on the slow drip of bureaucratic process to plan and execute effective counter strategy.
Much has already been written about the proposed changes, and my primary purpose here is not to compare and contrast the Old and New Bills of Lading (except to say they are drastic in potential impact on risk management). Rather, my purpose is to suggest a simple, albeit not perfect, interim solution for shippers, brokers and all who must protect the terms and conditions under which they ship freight by motor carriers. In short, no shipper or third party responsible for protecting statutory protections of duties and responsibilities of transit should ever accept the New USBOL when offered by a motor carrier, until it is fully tested in the courts. It is that simple…just say “NO!” to the New USBOL.
The changes articulated by the New USBOL are contrary to almost all statutory and case law on the subjects of duty of care; burden of proof; timeliness of transit; limitation of cargo value; limitations periods for filing and litigating loss or damage claims; liability of interline carriers; and a long list of other well established principles, which have been formulated since Congress applied the Carmack Amendment to motor carriers in 1935. In this writer’s opinion these changes will not survive jurisprudence, unless shippers, beneficial owners and third parties voluntarily, or without proper diligence, submit to them.
However, in the real world, shippers cannot wait on the courts to take predictable vengeance on this bureaucratic nightmare of “re-writing” well accepted law. They need and deserve an immediate strategy for continuing to protect their shipments within historical notions of accountability by motor carriers. They need a united standard operating procedure whereby they make NMFTA wish they had never proposed such an overreaching and manifestly unfair NEW USBOL. Such an alternative is clearly available to shippers, brokers and beneficial owners of freight shipments. Many may think they are “required” to accept the New USBOL. THEY ARE NOT SO REQUIRED.
While it may be confusing to the layman that a bureaucracy such as STB has apparently “sanctioned” the New USBOL, neither the STB, nor federal law imposes the particular terms and conditions of a bill of lading agreed by contract between shipper and carrier. In fact, under 49 USC 14101(b), shippers and motor carriers are free to contract as to the terms and conditions of any bill of lading. Moreover, they are free to expressly disavow the New USBOL.
Even by the language of NMFC Item 362-B, shippers and carriers may “…have an effective prior written agreement to use another bill of lading”, other than the New USBOL. The savvy shipper, broker and other third parties who contract for motor carriage must either contract with motor carriers to apply the terms and conditions of the Old USBOL; and/or, specify by contract with the motor carrier that no terms or conditions in the New USBOL shall limit the carrier’s duties, responsibilities or liability in contravention of other separate contractual limitations. In short, it is now incumbent upon all who ship or broker with motor carriers to have a separate contract with motor carriers wherein traditional notions of motor carrier duties and responsibilities are distinguished and imposed, notwithstanding the terms and conditions of the New USBOL.
CONCLUSION
Clearly, the New USBOL proposed by NMFTA, and tentatively sanctioned by STB, will drastically alter historical risk management assumptions for all shippers, brokers and third parties who do nothing about expressly contracting away the limitations of the New USBOL. Just as clearly, those who review existing contracts with motor carriers, modify them appropriately, or insist upon a new express contracts with such motor carriers, completely obviating the terms and conditions of the New USBOL, will effectively nullify this “arrogant and contemptuous” initiative by NMFTA.
For the otherwise unaware or less diligent, it is regretful that NMFTA will succeed with this “stealth” move to alter historical protections afforded the shipping public. But a word to the wise is sufficient. Just say… “NO!”… to NMFTA’s New USBOL, by appropriate means, with prejudice, and promptly.