Cargo Securement: Overview
The regulations that address cargo securement are detailed, numerous, and therefore, well beyond the scope of these blog posts. However, this section will discuss certain important concepts and general rules that should be considered in any case where cargo movement is an issue.
Cargo Securement
The first set of regulations found in subpart I of part 393, entitled “Protection against shifting and falling cargo,” consist of a series of eight questions. For example, § 393.112 is entitled, “Must a tiedown be adjustable?” Not surprisingly, the text of the regulation contains the answers to that question. The second set of regulations in subpart I, entitled “Specific Securement Requirements by Commodity Type,” consists of eleven more questions and answers.
Taken as a whole, the Q&A found in subpart I set forth several basic principles about cargo securement requirements, such as:
1. The cargo securement rules apply to trucks, truck tractors, semitrailers, full trailers, and pole trailers.
2. Any load transported on a public road by a CMV must be loaded and secured to prevent the load from leaking, spilling, blowing or falling from the vehicle. The load must also be “contained, immobilized or secured” to prevent shifting which would adversely affect the vehicle’s stability or maneuverability.
3. The use of damaged or weakened components to secure cargo, such as straps with cracks or cuts, is prohibited.
4. There are explicit requirements for the working strength of tiedowns and other components of a load securement system, including instructions on how to calculate the minimum number of tiedowns.
5. The Regulations provide explicit instructions on the securement requirement for particular types of cargo, including logs, metal coils, boulders, paper rolls and concrete pipe. Any case involving carriage of these type materials requires analysis of the specific requirements for such freight.
Observations
Like the Regulations that apply to other technical components of a CMV, the rules regarding cargo securement almost certainly necessitate expert advice and possibly expert testimony. The physics of a shifting load may also require the analysis of a licensed engineer, preferably one who is also an expert in load securement. A good load securement expert could even be an ex-truck driver, especially one with considerable experience actually driving a truck loaded with the type of cargo at issue in the case.
Note that the cargo securement rules of Part 393 must be considered in conjunction with the cargo inspection requirements, which places the burden to secure and inspect a load on both the driver and motor carrier. As addressed in Section_I.D.5, supra, a driver must inspect his load at regular intervals and make adjustments as needed. Many times it is the driver who physically straps and secures the load, which then also makes him responsible for adjusting those straps. However, there are instances where specialized securement is an issue. The shipper may bear responsibility in those instances, particularly if aspects of the securement are not susceptible to discovery by the driver on a routine visual inspection.
Pertinent Case Law
Turner v. Goodyear Tire & Rubber Co
In Turner v. Goodyear Tire & Rubber Co, an Illinois federal district court granted Goodyear’s motion for summary judgment after finding the FMCSRs inapplicable to an accident that occurred while the vehicle was being loaded at a dock. The court noted that regulation applies only while the vehicle is on a public road.
The extent of the cargo securement rules was also addressed by a federal district court in Oklahoma in Lamb v. The Scotts Miracle-Gro Co. There, the plaintiffs allegedly came in contact with harmful chemicals while sweeping an empty trailer that had previously been used to transport them. One group of defendants they sued, referred to in the opinion as the “J.B. Hunt defendants,” was alleged to have failed to properly secure the load of chemicals in violation of regulation. The district court granted summary judgment, finding that the plaintiffs were not members of the class of persons that the cargo securement regulations were intended to protect. Notably, the court found it telling that the plaintiffs’ own expert failed to rebut, and in fact affirmed, that they were outside the protected class.
Spence v. The ESAB Group, Inc.
A similar result was reached by a federal district court in Pennsylvania in the case of Spence v. The ESAB Group, Inc. There, the plaintiff was the driver of a CMV and was injured when the load shifted and the truck turned over. He sued the shipper, but the court granted summary judgment, finding in part that “under federal law, the responsibility for ensuring that cargo is properly secured rests squarely on the driver, not the shipper. In fact, shippers are not subject to the regulations.” However, on appeal, the Third Circuit reversed and remanded, holding that:
Those who undertake the task of loading, securing, and hauling cargo on tractor-trailers have a duty to exercise due care to protect property and persons from the risk of harm. The primary duty to assure that a load does not shift in transit generally rests with the carrier and its driver [. . .] But where there is evidence that a shipper undertook to load and secure the cargo being transported by a third party carrier, the shipper also bears an obligation to exercise reasonable care. [. . .] This principle is consistent with § 323 of the Restatement (Second) of Torts.
In this case, there was evidence that the shipper, ESAB, undertook not only to load the cargo, but also to supply the securement devices and to express an assurance that this method of securing the load was adequate. If . . . a jury finds that ESAB participated in not only loading, but also securing its welding supplies, then the jury would have to determine whether ESAB exercised due care. Thus, because it undertook the task of furnishing securement devices and assuring a skeptical driver that such devices were adequate, ESAB cannot be absolved of liability at the summary judgment stage. Whether ESAB breached its duty of care and, if so, whether Spence was negligent as well are matters committed to resolution by a jury. Accordingly, we will vacate the District Court’s entry of summary judgment in favor of ESAB on Spence’s general negligence and breach of an assumed duty claims . . .
Zupnick v. Certified Lumber Corp.
In Zupnick v. Certified Lumber Corp., the plaintiff was struck after a beam of wood fell off a truck while she walked on the side of the road. The Supreme Court of Kings County in New York found that the only explanation for the incident was the defendant’s failure to properly secure the load as required by New York regulations, which adopted the FMCSRs pertaining to load securement. The court also ruled that as a pedestrian, the plaintiff was a member of the class of persons intended to be protected by the regulations. In light of its findings, the court granted plaintiff’s motion for summary judgment against the defendants as to liability.