|
|
|
|
|
|
|
Now that summer is over - and what a strange summer it was
weather-wise - I trust everyone is getting back into the work and school routine.
I also hope that our glacially moving economic recovery will experience its own
global warming and heat up.
In this issue I want to respond to a question that was submitted in response to our last newsletter concerning carrier-prepared vs. shipper-prepared bills of lading and who is
required to issue the bill of lading. Andy addresses the lack of a federal Estate Tax this year, and Kevin encourages everyone to attend the OTA Safety Management Council meeting coming up on September 30.
In our next issue we will be addressing questions raised regarding a broker's use
of carriers with less than "satisfactory" safety ratings and how the changes to the safety ratings contained in CSA 2010 will affect your contracts.
Please keep your questions coming since
they will drive the newsletter. We want to focus primarily on your concerns and
not just on what we, as lawyers sitting in our offices, think is important. To submit a question simply reply to this email.
|
Carrier-Prepared vs. Shipper-Prepared Bills of Lading
By John Anderson
John Anderson  |
What
happens if a no one issues a bill of lading? The Carmack Amendment will determine the liabilities. This would
mean that the carrier is giving up its right to limit its liability and
incorporate the terms of it rules tariff. Carriers need to avoid this. Carriers
need to have their own bill of lading which sets out on its face the limits of
its liability (which itself must be done in a specific way) and incorporates
its rules tariff, which also sets out the limits of liability and other
critical terms and conditions applicable to the service provided.
Are
Shipper-Prepared Bills of Lading Valid? Maybe. The bill of lading serves three
purposes, it is the basic contract of carriage, it is a receipt, and it is
evidence of the party entitled to delivery. If the only document that exists
concerning a shipment is a shipper-prepared bill of lading, then it is the
contract of carriage once the carrier's driver signs it. Again, carriers should
avoid this situation. Shippers also need
to be careful about their own bills of lading. Frequently shipper-prepared
bills of lading unwittingly incorporate carriers' tariffs that limit the
shipper's recovery, a rude awakening for the shipper. Shippers cannot argue mistake since they
drafted the bill of lading.
What
should a carrier do? Carriers
need to do several things: (1) prepare their own bill of lading that
incorporates its rules tariff, and know what it says; (2) prepare a rules
tariff that sets forth all of the terms
and conditions of service and specifically states that all service is provided
under and pursuant to the carrier's bill of lading and tariff, that its drivers
have no authority to change any terms and conditions, and that the driver's
signature serves as a receipt only; (3) make every effort to issue its own bill
of lading on each shipment and have it signed by the shipper; (4) educate its
customers about the terms and conditions of the service provided; and (5)
consider the use of "pro stickers" when
a shipper-prepared bill of lading is used. The larger LTL carriers routinely
use pro stickers that are placed on shipper-prepared bills of lading by their
drivers and state that service is
subject to the terms and conditions set forth in its own rules tariff, which is
incorporated. There is nothing stopping TL carriers from adopting this
procedure.
These issues can be avoided altogether by carriers and
shippers entering into a comprehensive written transportation contract which
sets out the mutually agreed upon terms and conditions and renders the bill of
lading as a receipt only.
John Anderson - Email John
|
Estate Tax Update
By Andrew Schlegel
Andrew Schlegel  |
As I'm
sure you have heard in the news by now, due to inaction by Congress the Estate
Tax has lapsed in 2010. Perhaps the most
notable beneficiaries of this are members of the family of George Steinbrenner,
who will save a reported $500 million due to the timing of Mr. Steinbrenner's death! While there are fears that Congress could
retroactively apply a new law to the estates of those who pass away in 2010,
the longer Congress takes to act the less likely it is that any new tax would be retroactive. Additionally,
the Generation Skipping Tax does not exist in 2010.
However,
as we know, when Congress is involved all good things must come to an end. Due to the provisions of the 2001 bill that
ended the Estate Tax in 2010, the Estate Tax will come roaring back in 2011
with a vengeance. Unless action is taken
by Congress, all estates with $1 million in assets will be subject to the
Estate Tax (as opposed to $3.5 million in 2009) and the top tax rate will be 55%
(as opposed to 45% in 2009). While both
Democrats and Republicans have stated their intention to pass a bill raising
the minimum net worth required to be subject to the Estate Tax, neither side
has put forward a bill that has garnered enough support to be passed. If there is no action, many small businesses
and their owners will be negatively affected.
While
the future of the Estate Tax is uncertain, there are steps you can take to
minimize the effect of any estate tax on your family and your business should
the worst happen. It is important to
implement and review your Estate Plan with an attorney to determine how you can
best address this confusing situation.
Andrew Schlegel - Email Andy
|
OTA Safety Management Council
By Kevin Anderson
Kevin Anderson  |
As a member of the OTA
Safety Management Council Board of Directors, I would like to invite you to our
upcoming season of meetings. The monthly
lunch meetings of the OTA Safety Management Council provide a great opportunity to hear speakers present on current safety issues, exchange ideas with motor carrier safety professionals, and network.
The first meeting of the season will be on September 30 at the Holiday Inn in Wilsonville. The meeting will feature a presentation by Mike
Riffe on "Accidents: Learning from the Mistakes Made." Mike is the Senior Safety Compliance
Officer/Fatality investigator with OSHA. Mike has worked in safety and health
for more than 24 years and speaks regularly in Oregon
and Washington.
The cost is $25 for OTA members and $30 for non members and
day of registrants. It includes lunch and certificates of participation are
available upon request. Register by calling the OTA at (503) 513-0005 or online at www.ortrucking.org/events.htm.
I look forward to seeing you there!Kevin Anderson - Email Kevin |
|
|
|
|
|
|
|
The information presented in this communication should not be construed to
be formal legal advice
nor the formation of a lawyer/client relationship.
| |
|
|
|
|
|
|
|
