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Rollin'-On
Transportation Law Blog
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Transportation brokers frequently find themselves in tough spots. They are put there by their shippers who sometimes seemingly believe that they are entitled to transportation services that are risk free. The scenario is pretty simple and transparent: cargo gets damaged, and the shipper basically sends a message to the broker to cover the shipper's loss, even though the broker did not own the transportation equipment and had no control over the carrier's operations. The shipper knows that it can probably get another broker who will agree to cover its losses, the broker knows that, and so the broker makes good on the loss, through a selection of various methods.
The broker typically has a contract with the carrier. If the cargo is damaged, the broker will claim that the carrier has breached its agreement with the broker. The carrier may or may not agree, which is an important point to get clarified. Frequently the more important question concerns whether the carrier has the wherewithal to pay the damage. Carriers have cargo insurance to cover loss and damage claims, but their insurance companies will frequently deny the claim based upon one or more of the numerous exceptions to coverage contained in the insurance policy. So you've got a shipper waiting to get paid or otherwise compensated by the broker, and a broker which is waiting to get paid by the carrier, and a carrier which is waiting to get its insurance company to accept and pay the claim. That's why brokers hire carriers who have cargo insurance damage. If you are an attorney representing a motor carrier being sued on a loss and damage claim, the conventional wisdom is to get the case in federal court if at all possible. There are several factors in the mix to reach that conclusion. One factor is the perception that your motor carrier client won't get homered in federal court, that federal courts will not favor the local business over your out of state client. One would like to think that the scales of justice would not permit one party to be preferred over another party simply due to local residency, but the real world frequently doesn't work that way.
Another factor is that the federal courts usually have more resources, which translates to having staff to assist a judge with tasks such as research, drafting of opinions, that sort of thing. Contrast that with state courts which are often times strapped for personnel and support systems. Federal judges frequently have the assistance of law clerks and other personnel who can assist in ferreting out legal arguments, and therefore the federal court decisions are often based upon independent analysis. State court judges are often times left to figure things out for themselves, so they have to rely upon lawyers to educate them. And let's face it, sometimes the lawyer gets it wrong, or maybe tells the judge the wrong thing, which results in a bad decision. |
Larry R.
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