Detention Time and the Law

Publish your Rules Circular and prosper

By Timothy Brady

 

Last week Rep. Peter DeFazio, D-Ore, introduced a bill requiring the DOT to study industry detention practices and establish a maximum number of hours that drivers may be detained without being paid.

The Government Accountability Office recently surveyed 300 truckers.

68% reported being detained within the last month.

The GAO discovered 80% of the detained drivers had difficulty complying with hours of service requirements, and 65% reported losing money in the process of being held by a receiver or shipper. In the words of Representative DeFazio, “Yep, it’s a problem.”

The legislation, H.R. 756, states: “To direct the Secretary of Transportation to prescribe standards for the maximum number of hours that an operator of a commercial motor vehicle may be reasonably detained by a shipper or receiver, and for other purposes.”

Limitations on Certain Detentions- Section 14103 of title 49, United States Code, is amended by adding at the end the following:

`(c) Limitations on Certain Detentions- A shipper or receiver may not detain a person who operates a commercial motor vehicle transporting property in interstate commerce before the loading or unloading of such vehicle without providing compensation for time detained beyond the maximum number of hours that the Secretary determines, by regulation, is reasonable.’

Many on the carrier side of the logistics industry are applauding the move, saying it has been a long time coming. But questions remain: With the current atmosphere in Congress, will a bill introduced by a Democrat ever see the light of day in the Republican House? Another question is, if it were attached as an amendment to a House bill assured to pass and moved to the Senate, would the Senate’s Democrat Majority allow it to make it through to the President’s desk? And finally, would the Fortune 500 lobby, i.e., Wal-Mart, Costco, large food manufacturers and distributors, lobby the bill out of existence? That, only time will tell.
Reviewing a reference on this subject, I found there are already regulations on the books which allow you to charge a shipper or receiver detention time. But the vast majority of carriers don’t have the proper documents to support assessing detention fees.

Have you published your carrier’s Service Conditions? As a motor carrier, you are entitled to establish the terms and conditions of doing business along with a Rules Circular which spells out: Governing Publications (mileage guides and tariffs), Scope of Operations and Statement of Services provided (territorial area serviced, Interstate vs. Intrastate,  Dry Van, Temperature Controlled,  Intermodal, Haz Mat, etc.) Accessorial Services and Charges (Detention, Lumpers,  Expedited or Exclusive Use services, etc.), Claims Liabilities and Limits, Claims Processing and Salvage, Credit and Collection Provisions, and Fuel Surcharges.

While it is no longer necessary to file rates or tariffs with any federal agency, a motor carrier of property is required to provide a shipper, upon request, a copy of  the rate, classification, rules and practices which apply to its shipment or agreed to between shipper and carrier (49U.S.C. 13710). However, if there is no written agreement to the contrary, the terms and conditions published in your Service Conditions and Rules Circular apply, if you have one.

Therefore, if a carrier were to properly publish in their Rules Circular under Accessorial Charges – Detention and Free Time (time a shipper or receiver has to begin loading or unloading a trailer before detention time begins), customers may be held accountable. Minimally, if written correctly, when a shipper/receiver doesn’t begin loading/unloading within the free time period specified, the carrier can demand full payment as a condition of delivery with a promissory lien, as long as there is not a bilateral agreement between the shipper and carrier to the contrary. (‘Bilateral’ meaning signed, agreed to and executed by both parties.)
However, specified Detention Time, Free Time and the Promissory Lien must be published as a part of the carrier’s Rules Circular and be available by request to the shipper. So what is your carrier doing?

That’s something to think about.

Reference:

Protecting Motor Carrier Interests in Contracts, 2nd edition; By Henry E. Seaton, Esq.

© 2003, Seaton & Husk, LP  http://www.transportationlaw.net/

Timothy Brady   ©2011

To contact Brady go to www.timothybrady.com

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