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
Tires: Overview
The concept that damaged, worn, or defective tires, or proper tires overloaded by the motor carrier, may fail is not a novel one. However, the regulations do include some requirements and exceptions that may come into play in a case.
CMV Tires
Brakes And Braking Systems: Overview
Lights and reflective devices are important at night, and may or may not make a difference, especially where adequate lighting is present. Brakes, on the other hand, count every time the accelerator is pressed. Indeed, few parts of a CMV are as critical or as clearly appreciated by everyone as good brakes. A driver may not operate a CMV unless satisfied the brakes are in good working order, and brakes must be part of the inspection required at the end of every work day and documented in the Driver’s Vehicle Inspection Report. §§ 392.7(a); 396.11. As with lights, the Regulations discuss brakes and braking systems in very technical ways. There are multiple references automotive and engineering standards that may need to be translated into laymen’s terms by an expert.
CMV Brakes And Braking Systems
Introduction
49 CFR Part 393 discusses “[p]arts and accessories necessary for safe operation” of a CMV. The regulations therein provide explicit instructions about many of the components that fit together to make up a CMV. Prompt inspection of a vehicle, particularly in a case where no obvious reason for a collision is apparent, is important. For this reason, counsel is advised to send a letter to the motor carrier requesting that the vehicle be preserved – without repairs or alteration of any kind – until there is an opportunity to inspect it. If the client does not retain counsel until after the vehicle has already been repaired or disposed of, then discovery of any inspection conducted by the motor carrier, either by an expert or shop mechanic, is the best available substitute. Even if the vehicle has been disposed of, counsel should attempt to find out what yard it was sent to; it may still be sitting there, even months after a crash.
It is also important to obtain any report prepared by authorities that documents any inspections of the vehicle. Either or both the state or federal DOT may have inspected the vehicle at some point. Their inspection report may have noted vehicle deficiencies that designated it (or should have) to be placed out of service. Some of these problems may have been a consequence of the incident itself, and thus not a factor for you. However, matters such as measurement of tire tread, brake pad thickness, and the like, documented by a government official charged with investigating the condition of the vehicle, oftentimes at the actual scene, can be worth their weight in gold.
Pertinent Case Law
A considerable body of law has emerged which construes many aspects of regulation, and provides guidance for those who deal with stopped CMV litigation. For example, in the Harmon case, a motor carrier was held to face direct liability for failing to instruct its driver in the requirements of regulation, as required. The evidence there revealed the motor carrier did nothing more than pin some diagrams about warning devices to a bulletin board at the office, which the court held was sufficient to support a finding the motor carrier breached its duty to instruct and comply with the regulations.
Proximate cause was lacking for failure to place triangles on a bright sunny day where the stopped vehicle was apparent for a great distance in the Dmitruk case. The trial court in Dmitruk, in an earlier ruling, held that a tow truck company which is towing a CMV does not have a duty to place triangles should the vehicles be forced to stop. However, the fact the plaintiff saw the defendant truck and its lights, but failed to slow significantly, was held insufficient to entitle the motor carrier to summary judgment, where its driver failed to comply with the regulation and did not place a triangle in front of the disabled CMV.
Stopping a CMV: Overview
While state “rules of the road” may address stopping of any motor vehicle, the dangers created by the stopping of a large truck were sufficient to motivate the authors of the FMCSR to implement detailed and specific requirements to warn oncoming traffic. In considering these requirements, the reasons for a stop must also be analyzed. State law may prohibit stopping in the “emergency” lane for any but specified reasons. If the driver has stopped to study a map or take a nap, he may be in violation of not only the FMCSR but state law as well.
Stopping
Pertinent Case Law
First, the USDOT has interpreted regulation to say that it is the driver, not the motor carrier, who makes the call on discontinuing operation. If the driver says he wanted to pull over but was told by the motor carrier that no shut-down had been declared, both parties may be at fault.
Operating in Hazardous Conditions: Overview
The hazardous conditions regulation creates a significant issue in any case where an accident involving a CMV occurs in bad weather. Failing to address the regulation in deposition and discovery and failing to argue it and seek its charge, is inexcusable in a bad weather case. The higher duty created under the regulation is the stuff of motor carrier insurer nightmares, and a potential bombshell against the defense.
Hazardous Conditions
Pertinent Case Law
The courts recognize a distinction between a claim of a shipper against a motor carrier when cargo is damaged, as opposed to a claim by a member of the traveling public injured by an improperly secured load. This distinction was illustrated in the case of Syngenta Crop Production, Inc. v. Doyle Brant, Inc., which involved a spill of a load of Diazinon pesticide and a claim by the manufacturer against the motor carrier and its driver. Quoting United States v. Savage Truck Line, Inc., the Syngenta court noted the majority rule that allocates responsibility between a shipper and motor carrier as follows:
When the shipper assumes the responsibility of loading, the general rule is that he becomes liable for defects which are latent and concealed and cannot be discerned by ordinary observation by the agent of the carrier, but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.
Cargo Securement: Overview
The duties incumbent upon the driver of a CMV relative to cargo are strict, and frequently ignored in practice. These rules are critical to the prosecution of a claim involving cargo which falls off a truck, shifts causing the vehicle to wreck or otherwise interferes with operation causing an accident.
Cargo Securement Rules
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