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Covid 19 Protocols for Those Who Must Work in the Modes of Transportation (Updated 4/6/2020)

NOTE ON THIS UPDATE:

This update contains additional information related to site disinfection and mask and respirator usage and employee safety training and meetings. These are identified as Special Notes and set out in italics.  Contact Robert Fried with interim questions and to provide updates, insights and best practices that will amplify future updates.

Overview

While the serious impact of the COVID-19 pandemic is broadly understood, the role of industry leaders and their counsel is to identify the functional planning measures inherent in their industries as action steps. The protocols necessarily go beyond remote work, social distancing, testing and matters of personal protective hygiene.  This article approaches this subject in terms of the collected views of experts in the basic modes – ships, planes, trucking and trains, and transit hubs, incorporating all of them from the viewpoint of micro-protocols. 





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Supreme Court Holds A Safe-Berth Clause In A Charter Is A Warranty Of Safety By The Charterer

On March 30, 2020, the Supreme Court decision in Citgo Asphalt Refining Company v. Frescati Shipping Co., Ltd, No. 18-565, held that a safe-berth clause in a charter party (a maritime contract for the use of a vessel) constitutes a warranty of safety imposing liability on the charterer, notwithstanding its diligence to select a berth.  The landmark decision, authored by Justice Sotomayor, affirmed the Third Circuit Court of Appeals and resolved a split between the Fifth Circuit and the Second Circuit.  The Court rejected the argument that a charterer may avoid liability under a charter party by simply exercising due diligence in selecting a berth. 

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Letter from the President

I hope this letter finds you healthy and dealing the best you can with the Coronavirus (COVID-19) pandemic. The Association of Transportation Law Professionals (ATLP) prides itself on the value that its programs bring to you as well as the opportunity for you to network and continue to develop relationships with your colleagues. Unfortunately, as a result of the pandemic, we have been forced to cancel the 2020 Annual Meeting set for Vancouver, BC in June. Given the current travel restrictions between the US and Canada, as well as the 14-day quarantine for US travelers who enter Canada and the numerous “shelter in place” orders enacted by a majority of states, the meeting is not feasible. Needless to say, this is a great disappointment for all, but rest assured that we are looking at other opportunities to bring you updated information relevant to your business, even if it must be done virtually.

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Covid 19 Protocols for Those Who Must Work in the Modes of Transportation (Updated 3/26/2020)

NOTE ON THIS UPDATE:

This update contains additional information related to port and transit operations; temperature testing and DOT mandated drug and alcohol testing; air transport and labor relations, including preliminary observations on collective bargaining provisions that are expected to be in the current stimulus bill relating to federal financial assistance. Please note further updates will be issued. Contact Robert Fried with interim questions and to provide updates, insights and best practices that will amplify future updates.

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U.S. Homeland Security Issues Guidance on Essential Critical Infrastructure Workers During Covid-19 Response

California and New York have issued stay at home orders and governors across the country are implementing or are considering restrictions to halt the spread of Covid-19.  Governor Newsom’s order exempts workers in essential services.

But, what type of work is designated essential?

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Hazmat Practice Pointer: Access Recent Hazmat Enforcement Actions through the U.S. DOT Office of Inspector General’s Website

A valuable resource for hazmat transportation practitioners is the US Department of Transportation - Office of Inspector General’s (“DOT-OIG”) website, www.oig.dot.gov, which provides valuable up to date information on recent hazmat transportation civil and criminal enforcement actions. Practitioners can stay informed of these developments in real-time by signing up for the DOT-OIG’s email notification list. In addition to enforcement cases, the OIG reports on audits and oversight results.

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Things to do in Vancouver: Vancouver Lookout

ATLP's 91st Annual Meeting is fast approaching and we wanted to share some exciting things to do in Vancouver leading up to the event.

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Federal Court Dismisses State Law Claims Alleging Conspiracy Between Boeing and Southwest

Of the many current lawsuits against Boeing arising from the 737 MAX crisis, perhaps one of the more interesting ones was brought by Southwest Airlines passengers against Southwest and Boeing alleging that they were overcharged at the moment that they purchased tickets for travel aboard Southwest’s 737 MAX aircraft.[1]  These passengers, who brought putative class-action claims, alleged that the 737 MAX was fatally defective, that they never would have purchased their tickets on Southwest’s 737 MAX aircraft had they known of the defects, and that Boeing’s and Southwest’s misrepresentations and omissions concerning the safety of the 737 MAX enabled Southwest to overcharge for tickets.  Plaintiffs brought causes of action against both defendants for, broadly speaking: (1) violations of the RICO Act; (2) concealment and misrepresentation; (3) unjust enrichment; and (4) negligence.  Other than the RICO Act claims, Plaintiffs’ claims all were state law claims.

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Editor-in-Chief Commentary

Welcome to the first Editor-in-Chief commentary under the ATLP’s new blog format.  As you probably know or have deduced, ATLP has transitioned Association Highlights from a bi-monthly newsletter format publishing six issues per year to a blog format endeavoring to publish weekly.  Under this new format, you will continue to receive informative transportation content delivered via email.  You can access the Association Highlights blog posts at the ATLP website, https://www.atlp.org/association-highlights-blog.  We hope that you find this new format to make it easier for you to read all of the high-quality content produced by the ATLP Highlights editors.

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Things to do in Vancouver: Granville Island Public Market

ATLP's 91st Annual Meeting is fast approaching and we wanted to share some exciting things to do in Vancouver leading up to the event.

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Federal Court Grants Preliminary Injunction Barring AB-5 from Applying to Motor Carriers Operating in California

California Assembly Bill 5 (AB-5), a controversial law aimed at substantially increasing the number of workers classified as employees rather than independent contractors, went into effect Jan. 1, 2020.  While the law is apparently aimed at the gig economy, other workers have been caught in the wake of the bill, including owner-operator drivers for motor carriers -- which have been a mainstay in the motor carrier industry for decades. 

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MARITIME - International Maritime Organization Issues Novel Coronavirus (2019-nCoV) Guidance

            The International Maritime Organization (“IMO”) is a specialized agency of the United Nations dedicated to establishing global standards for international shipping.  The IMO governs a broad spectrum of international shipping issues, including safety requirements for shipping companies, passengers, and seafarers.  Currently, IMO has 173 Member States.

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MARITIME - Modernization of Global Maritime and Distress System

On January 15, 2020, the IMO announced efforts of the Subcommittee on Navigation Communications and Search and Rescue to review requirements for the Global Maritime Distress and Safety System (“GMDSS”).  The GMDSS is an integrated satellite and land-based radio communication system that is mandatory under the International Convention for the Safety of Life at Sea (“SOLAS”).  IMO announced that the Subcommittee for Navigation, Communications and Search and Rescue will finalize its suggestions and report to be submitted to the Maritime Safety Commission with proposed amendments to SOLAS that will be enforced in 2024.  This work by the Subcommittee is an effort toward continual modernization of SOLAS.

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RAILROADS - STB Update

On January 2, 2020, the Board provided its fourth quarter 2019 report on Pending STB Regulatory Proceedings, as required by Section 15 of the STB Reauthorization Act of 2015. 

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Things to do in Vancouver: Vancouver Art Gallery

ATLP's 91st Annual Meeting is fast approaching and we wanted to share some exciting things to do in Vancouver leading up to the event.

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RAILROADS: The Board Discontinues the Rail Fuel Surcharges Proceeding and Denies a Petition for Reconsideration

In August, the Board issued a decision discontinuing the Rail Fuel Surcharges (Safe Harbor) proceeding, in which the Board had sought comment on whether to modify or remove the “safe harbor” provision of its current fuel surcharge rules.  Ex Parte 661 (Sub-No. 2) (STB served Aug. 29, 2019).  This proceeding began in May 2014, when the Board issued an advanced notice of proposed rulemaking (ANPRM) to better understand “whether the sort of growing spread between” safe harbor HDF Index-based costs and actual costs seen in Cargill, Inc. v. BNSF Ry., NOR 42120, (STB served Aug. 12, 2013), “was unique to BNSF during a period of particularly high price volatility (or instead a widespread phenomenon in the rail industry).”  Id., slip op. at 2.  The ANPRM was also issued to “determine whether to modify or remove the safe harbor provision.”  Id.  The Board stated that the comments and replies received in response to the ANPRM were “varied,” and many did not directly address the issue raised.  Id.  The Board explained that, since the comment period, it has been unable to reach a majority decision on what action to take in response to the comments received.  Id., slip op. at 3.  Therefore, “the Board Members agree that this docket should be discontinued.”  Id. 

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RAILROADS: The Board Issues Three Demurrage Decisions

On October 7, 2019, the Board concurrently served three decisions related to demurrage.  These decisions arose, at least in part, as a result of the testimony and comments provided in Oversight Hearing on Demurrage & Accessorial Charges, Ex Parte 754.  Comments on all three of these proposals were due on November 6, 2019, and reply comments were due on December 6, 2019. 

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RAILROADS: The Board Proposes to Revise its Methodology for Determining the Railroad Industry’s Cost of Capital

In October, the Board issued a notice of proposed rulemaking to revise its methodology for determining the cost-of-equity component of the cost of capital.  Revisions to the Board’s Methodology for Determining the R.R.  Indus.’s Cost of Capital, Ex Parte 664 (Sub-No. 4) (STB served Oct. 11, 2019).  The proposed rule would add a third model, in addition to the two models (the Capital Asset Pricing Model (CAPM) and the Morningstar/Ibbotson Multi-Stage Discounted Cash Flow Model (MSDCF)) currently used.  Id., slip op. at 3.  The new model, called “Step MSDCF,” would continue to calculate growth of earnings in three stages, like MSDCF.  The first and third stages would be the same as those of MSDCF.  The growth rate of the second stage (years six through 10) of Step MSDCF “would be a gradual transition between the first and third stages.”  Id., slip op. at 5.  Under the proposal, the Board would calculate the cost of capital by using the average of the three models, weighted as follows: CAPM at 50%, MSDCF at 25%, and Step MSDCF at 25%.  Id., slip op. at 3.  As the Board noted, since its move in 2009 from a cost-of-equity estimate based solely on CAPM to one based on the simple average of the CAPM and MSDCF estimates, it has considered revising this calculation at various times.  Id., slip op. at 4-6.

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RAILROADS: The Board Solicits Additional Information on Cost-Benefit Analysis Petition for Rulemaking

In November 2019, the Board issued a decision seeking additional information on integrating cost-benefit analysis into its rulemaking process.  Ass’n of Am. R.R.s—Petition for Rulemaking, Ex Parte 752 (STB served Nov. 4, 2019).  This decision was issued in response to a petition filed by AAR in March to institute a rulemaking to adopt rules that “would require a cost-benefit analysis in certain Board rulemaking proceedings and would set certain data requirements.”  Id., slip op. at 1.  Specifically, the Board sought information on the following four topics:

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Things to do in Vancouver: Bill Reid Gallery of Northwest Coast Art

ATLP's 91st Annual Meeting is fast approaching and we wanted to share some exciting things to do in Vancouver leading up to the event.

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