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ATLP Transportation Quick Bites

This week’s Highlights shines a light on a few transportation news pieces that caught our attention, click through to the ATLP website for links to these items:

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DOT Agencies Strengthen Environmental Justice Efforts

At ATLP’s final Fall Forum session last month, officials from various modal agencies under the U.S. Department of Transportation (DOT) discussed agency activities related to environmental justice.

The U.S. Environmental Protection Agency defines environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”  The Biden Administration has indicated that environmental justice is a priority issue area for the President, as reflected in Executive Order 14,008 (“Tackling the Climate Crisis at Home and Abroad” – issued January 27, 2021) and the whole-of-government Justice 40 Initiative announced in Summer 2021 to implement the environmental justice-related aspects of the E.O. 

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Second Circuit Reaffirms the Preemptive Effect of the Montreal Convention

As frequent readers of this blog will recall, the Montreal Convention exclusively governs lawsuits against air carriers for damage arising from delay of or damage to cargo during international air transportation among signatory nations.  A recent decision by the United States Court of Appeals for the Second Circuit illustrates that litigants cannot use artful pleading to avoid application of the Montreal Convention.1

In New Fortune Inc. v. Apex & Aeroflot, plaintiff NFI purchased one million face masks from a Chinese company and hired defendant Apex, a freight forwarder, to transport the masks from China to the U.S.2  Apex was instructed to ship the masks directly from China to New York and complete delivery within two days.  Although half of the masks were shipped in the requested manner and timeframe, NFI alleged that the other half was not.  Instead of flying directly from China to New York, the second batch of masks was flown on another carrier’s flight (Aeroflot, a Russian carrier) from China to Moscow, where they remained at the airport for over twenty days before being flown to their final destination in New York.  NFI alleged that its buyer refused to accept late delivery of the second batch of masks, and further that some of the crates were damaged.

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Senate Approves Karen Hedlund to the Surface Transportation Board

Railway Age is reporting that the Senate voted to approve Karen Hedlund to succeed Board Member Ann Begeman. 

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D.C. Circuit Invalidates Trailer Emissions Regulations

On November 12, 2021, the U.S. Court of Appeals, D.C. Circuit, overturned an Obama-era emissions rule directed at newly-manufactured trailers.  In order to regulate trailers, either a new regulation will be required, or Congress will need to expressly expand agency authority.   

During the Obama Administration, the Environmental Protection Agency (EPA) promulgated numerous regulations aimed at limiting harmful emissions in various industries and sectors across the country.  One area of emphasis was shipping and trucking, specifically the use of heavy-duty trucks and vans.  In October of 2016, the EPA and the National Highway Traffic Safety Administration (NHTSA) issued a joint final rule, titled “Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—Phase 2."  81 FR 73478-01 (Oct. 25, 2016). 

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The Relationship Between Slime On Ship Hulls And The Increase In Greenhouse Gas Emissions

On November 4, 2021, the Global Industry Alliance (GIA) for Marine Biosafety, operating under the framework of the GEF-UNDP-IMO GloFouling Partnerships project ( released its preliminary results of the study on the Impact of Ship’s Biofouling on Greenhouse Gas Emissions (the “Study”) during the United Nations Climate Change Conference (COP 26). 1   The final Study is expected to be released in 2022.

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The Board Invites Comments on Issues Related to First-Mile / Last-Mile Service

On September 2, 2021, the Surface Transportation Board (Board) issued a decision stating that it was seeking comments on issues related to first-mile / last-mile (FMLM) service, which refers to the movement of railcars between a local railroad serving yard and a shipper or receiver facility.  First-Mile / Last Mile Service, EP 767, slip op. at 1 (STB served Sept. 2, 2021).  The Board noted that it is seeking information on FMLM service “[a]fter hearing concerns raised by shippers across numerous industries and requests for transparency of FMLM data.”  Id.

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The Board Denies Requests to Reconsider its Preliminary Decision on the Transportation Merits of a Proposed Rail Construction and Operation Project

On September 30, 2021, the Surface Transportation Board (Board) issued a decision denying requests to reconsider the Board’s January 5, 2021 decision in Docket No. FD 36284, in which the Board preliminarily concluded, subject to completion of the environmental review, that the proposed construction and operation of approximately 85 miles of rail line in Utah meets the statutory exemption standard.  Seven Cnty. Infrastructure Coal.—Rail Constr. & Operation Exemption—in Utah, Carbon, Duchesne, & Uintah Counties, Utah,FD 36284 (STB served Sept. 30, 2021).

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The Board Denies Louisville Riverport Authority’s Petition for Declaratory Order Regarding the Port of Louisville

On October 22, 2021, the Surface Transportation Board (Board) issued a decision, denying a petition for declaratory order filed by the Louisville and Jefferson County Riverport Authority, d/b/a Louisville Riverport Authority (LRA), seeking a finding that its lessee, New Albany Main Street Properties, LLC, d/b/a the Port of Louisville (Port of Louisville), is operating as a common carrier on certain track without authority from the Board.  The Louisville and Jefferson County Riverport Authority—Petition for Declaratory Order, FD 36463 (STB served Oct. 22, 2021).  

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CN Withdraws its Prefiling Notification in Proposed CN/KCS Merger Proceeding; CP and KCS File Application in Proposed CP/KCS Merger Proceeding

Two potential merger proceedings involving Kansas City Southern have been pending before the Surface Transportation Board (Board) – Docket No. FD 36500, regarding a potential merger with Canadian Pacific, and Docket No. FD 36514, regarding a potential merger with Canadian National.  On October 20, 2021, the Board granted Canadian National’s request to withdraw its prefiling notification in the proposed CN/KCS merger proceeding.  Canadian Nat’l Ry. Co.—Control—Kansas City S., FD 36514 (STB served Oct. 20, 2021).  On October 29, 2021, Canadian Pacific and Kansas City Southern filed an application seeking approval for the proposed CP/KCS merger.  Canadian Pac. Ry. Ltd.—Control—Kansas City S., FD 36500 (filed Oct. 29, 2021).

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Department of Justice Sues to Stop American Airlines and JetBlue Alliance

In September, the U.S. Department of Justice filed a lawsuit in federal court in Massachusetts seeking to stop the planned alliance between American Airlines and JetBlue. Six state attorneys general and the District of Columbia joined the lawsuit. The complaint contends that JetBlue is a “uniquely disruptive low-cost carrier” and that proposed alliance would undermine competition on routes to and from four major airports: Boston Logan International Airport (“Boston Logan”), John F. Kennedy International Airport (“JFK”), LaGuardia Airport (“LaGuardia”), and Newark Liberty International Airport (“Newark Liberty”).1

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Allison Fultz Appointed Chief Counsel of the Federal Railroad Administration

ATLP’s own Allison Ishihara Fultz has been appointed to be the Chief Counsel for the Federal Railroad Administration.  FRA’s Chief Counsel is the principal legal advisor to the Administrator and provides executive direction over two divisions: General Law Division and Safety Law Division.

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Covid Vaccination and OSHA - An Implementation Overview

The Occupational and Safety and Health Administration’s (“OSHA”) proposed final rule to implement a Covid vaccination mandate is entering its administrative review phase before it becomes final.  This article will focus on potential issues OSHA will face as it implements this new rule.

An OSHA Rule Is Not a General Law As Passed By Congress Or Any Legislature And, As Such, For HR Professionals And General Counsel, Does Not Directly Mesh With Existing Law Or Policies 

An OSHA rule is a workplace safety standard, enforceable by citations issued by OSHA inspectors.  This means that the regular process for imposing fines and administrative hearings within the Agency applies.  However, this process only imposes potential liability on employers who do not implement a compliance policy.

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Passenger Rail Update


This edition of the Commuter Rail Update delves into a recent decision issued by the Surface Transportation Board (“STB”) concerning cost allocation between Regional Transportation Authority’s Commuter Rail Division (“Metra”) and the National Railroad Passenger Corporation (“Amtrak”) for use of Amtrak’s Chicago Union Station. We also highlight New Jersey Transit’s award of a $1.6 billion contract to conduct a much-needed replacement of the Portal North Bridge connecting New Jersey to New York City.

Surface Transportation Board Issues Decision in Dispute Between Amtrak and City of Chicago Over Access to the Chicago Union Station

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Comment Period Closing October 12: PHMSA Proposed Rule on Efficient Transportation of COVID-19 Supplies

On August 10, the Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) published a Notice of Proposed Rulemaking (NPRM) seeking comments on proposed amendments to the Federal Hazardous Materials Regulations (HMR).  86 Fed. Reg. 43844 (August 10, 2021).  PHMSA coordinated with the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, and the U.S. Coast Guard in the development of the NPRM.

PHMSA states that the proposed amendments are intended to facilitate the transportation of vaccines and other medical materials needed in response to the novel coronavirus disease 2019 (COVID-19) pandemic.  Additionally, the amendments seek to reduce greenhouse gas (GHG) emissions by reducing delays and interruptions of hazardous materials during transportation and by supporting the increased demand for transporting lithium batteries due to electrification of the automobile sector.

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U.S. District Court for the Eastern District of New York Clarifies Applicability of Montreal Convention to Delayed Transportation of Human Remains

In a two-part opinion, the United States District Court for the Eastern District of New York dismissed a lawsuit filed by the family of a deceased Pakistani-American whose remains were not loaded onto a scheduled flight to Pakistan, leading to an unplanned burial in the United States. 

The family members alleged various state law causes of action, including loss of sepulcher, negligence, gross negligence, negligence per se, negligent infliction of emotional distress, fraud, loss of services and breach of contract, against the air carrier, Pakistan International Airlines (“PIA”), its cargo handler Swissport, and the Port Authority of New York and New Jersey.  After pre-trial discovery concluded, the parties cross-moved for summary judgment.  Defendants argued that the human remains were “cargo” for purposes of the Montreal Convention, and that the failure to load such remains onto the scheduled flight constituted a delay under Article 19 of the Convention.  As frequent readers of this blog will recall, the Montreal Convention controls a party’s remedies for injuries arising from international travel between signatory nations (which include those at issue in this case), and therefore as a treaty of the United States, preempts all state law claims.

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$1 Billion Verdict Builds on Nuclear Trend in Trucking Accident Cases

A Florida state jury recently awarded a $1 billion verdict to the family of a victim of a trucking accident.  Dzion v. AJD Business Services Inc. et al., 2018-CA-000148 (Nassau Cty Fla. 2021).  This is the latest in a trend of “nuclear verdicts” in trucking accident cases over the last decade or more. 

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ATLP Transportation Quick Bites

ATLP’s editorial team compiled transportation items in the news that we found of interest:

  1. Dr. Fauci supports mandatory coronavirus vaccines for air travel.  Read more by clicking here.

  2. Kansas City Southern Railroad accepts Canadian Pacific Railway offer after the Surface Transportation Board denies the joint request by Canadian National and Kansas City Southern motion to use a voting trust.  Read more by clicking here.

    Read more about the Board’s decision at the ATLP’s Blog.

  3. Head of Northeast Corridor Commission Executive Director says that the Biden infrastructure bill could fund significant improvements along the Northeast Corridor.  Read more by clicking here.

  4. UPS will acquire delivery startup Roadie, which relies on gig-economy drivers to handle same-day, oversized, and perishable deliveries that UPS cannot otherwise handle.  Read more by clicking here.

  5. U.S. Customs and Border Protection is in a frozen fish fight over the Jones Act in Alaska.  Read more by clicking here.

  6. Although not directly transportation-related, ATLP Board Member Professor Robin Rotman has a new article in Ecology Law Quarterly, "Realigning the Clean Water Act: Comprehensive Treatment of Nonpoint Source Pollution," in Ecology Law Quarterly.”  Professor Rotman and her co-authors offer an extensive history and analysis of water quality regulation in the United States and propose a holistic framework for controlling nonpoint source pollution under the Clean Water Act and the Safe Drinking Water Act. Of interest to ATLP members may be the discussion of the definition of “navigable waters,” which affects the permitting requirements for many transportation infrastructure projects. Read more by clicking here.

Eleventh Circuit Enforces Cruise Line’s Forum Selection Clause

On August 19, 2021, a panel of the Eleventh Circuit affirmed a district court dismissal of a putative class action filed by a cruise ship passenger against cruise ship operators for the alleged negligent failure to warn passengers of the danger of COVID-19, misleading advertisement, negligent infliction of emotional distress, and the intentional dismissal of emotional distress based upon the forum selection clause in the cruise contract. In Turner, on his own behalf  and on behalf of others similarly situated passengers aboard the Costa Luminosa v. Costa Crociere S.P.A., Costa Cruise Lines, Inc., 2021 WL 3673727,   __F.3d__ (11th Cir. 2021), the Panel held that Section 2(a) of the General Conditions of Passage Ticket Contract (the “Contract”) required all passengers to file any suit arising out of the cruise in Genoa, Italy.

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Non-Railroad Entities File Petition Requesting the Surface Transportation Board Adopt Rules Governing Use of Private Railcars by Railroads

On July 26, 2021, the North America Freight Car Association, The National Grain and Feed Association, The Chlorine Institute, and The National Oilseed Processors Association (collectively, Petitioners) filed a petition for rulemaking requesting that the Surface Transportation Board (Board) exercise its authority under 49 U.S.C. §§ 1312 and 11122(a)(2) “to promulgate regulations governing the use by the Nation’s Class I railroads of freight railcars supplied to them by rail car owners, shippers, and other non-railroad entities (‘Private Railcars’).”  Petition for Rulemaking to Adopt Rules Governing Private Railcar Use by Railroads, EP 768 at 1 (filed July 26, 2021).

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