How This Area of Law Works

What is “transport business law”?

It consists of legal and regulatory constraints on a business that:

  1. Uses carriers or intermediaries as shippers or recipients of freight.
  2. Offers transport services as a carrier or an intermediary.
  3. Provides goods or services to the logistics sector.
  4. Operates facilities or owns real estate governed by transport laws.

What kinds of legal and regulatory constraints does this blog address?

  1. Regulation: Whatever government makes you do – or forbids.
  2. Torts: Your liability for the harm that you (allegedly) cause to others.
  3. Commercial: Making your contracts achieve what you want them to, and avoiding unwanted payment obligations.

How would you characterize this field of law?

It may seem a little incoherent because two distinct sources of law can cover the same question or activity – with four variations on this kind of duplication:

First: Transport-specific versus general business law. Transport business law includes a patchwork of transport-specific statutes and judicial precedents that Congress and the courts have overlaid onto general business law.

Second: Federal versus state and local law. On some regulatory questions, a federal statute or agency rule completely displaces any state or local provision relating to the same subject – but on other questions both govern simultaneously.

Third: Overlapping federal statutes and resultant overlapping federal agency authorities addressing the same question or activity.

Fourth: Resultant overlapping federal agency authorities addressing the same question or activity.

Can you offer some topic headings for transport business law? 

Regulation (by Statute and Administrative Rule):

  • By mode – Aviation, Intermodal, Maritime, Motor Carrier, or Railroad.
  • By policy concern – Hazardous Materials, Homeland Security, or Import Safety.
  • By agency initiatives – e.g., CSA 2010 (FMCSA), C-TPAT (CBP), Toxic-by-Inhalation (STB), Certified Air Cargo (TSA).
  • By state law general business law disciplines (employment, tort, etc.) – courts have held that application of state employment or tort law can amount to “de facto state re-regulation” of what the federal government has sought to deregulate by the likes of the Airline Deregulation Act of 1978, the Staggers Act (railroad), or Motor Carrier Act of 1980.
  • By overlaps among administrations within U.S.DOT – or between U.S. DOT and U.S. DHS (TSA) administrations.

Torts (by Case Law Overlaid by Federal Statute):

  • In areas like negligence, product liability or terms of employment,  Federal law may “preempt” state precedents – in others state or local decisions govern simultaneously with federal law.
  • Transport-specific federal overlays on basic tort law (e.g., negligence test for rail injury under FELA distinct from – and easier than – common law).
  • Vicarious liability on shipper / carrier / broker – to reach deepest pocket.

Commercial (by Case Law Overlaid by Federal Statute):

  • Federal law can drive price, routes, risk of loss – despite “deregulation”.
  • Bills of lading clauses, interpretation conventions and usages of trade.
  • Carmack and COGSA freight damage statutes can stymie agreed terms.
  • Federal limits on ownership of seaports, airports, railroad rights of way.

Why does your blog cover “transport business law” across-the-board? Why not focus on a single legal sub-discipline like aviation, hazardous materials, or the enforceability of bills of lading?

The focus on legal sub-disciplines has a long and proud history in this sector. Over the years law practices, bar associations and publications have often been organized  around a particular transport mode (e.g., railroads), a single agency (e.g., the old Interstate Commerce Commission), or a recurring type of case (e.g., freight damage claims under the Carmack Amendment or COGSA). And as a veteran lawyer within the U.S. DOT Office of General Counsel recently put it to me, such a niche focus largely prevails today.

This blog leans the other way. Why?

First, an across-the-board approach to the law corresponds to the industry’s structure today. The supply chain looks more like a platform that integrates multiple transport modes, information grids and legal systems than a series of discrete and insular functional stovepipes. This blog seeks a legal perspective that corresponds with that operational reality.

Second, major legal doctrines in this field come out of multiple modes and policy concerns – not just one niche. For example: Freight damage statutes (Carmack Amendment in motor domestic carrier and rail; COGSA in international maritime; Warsaw Convention and Montreal Additional Protocol in aviation); federal preemption of state and local law (each mode with a different set of federal statutory schemes doing the preempting); and bill of lading construction (common points among motor carrier bills, railroad waybills, air bills and maritime bills).

Congress enacts statutes and the courts decide precedent with an across-the-board scope as to all modes and all transportation policy concerns. And non-modal transportation agencies like PHMSA, TSA, and U.S. CBP apply their policy concerns on a multi-modal basis.

Third, my own knowledge of this sector has developed on an across-the-board basis:

1. As an executive: I first became involved with this sector as a business executive financing aircraft, rail rolling stock, and truck fleets – and doing workouts in airline and motor carrier bankruptcies at Whirlpool Financial and GE Capital.

2. From my mentors: My father George H. Webber is an electrical engineer who advised on the technology implications of transportation policy in the Office of the Secretary of U.S. DOT and at the Volpe National Transportation Systems Center. Dr. Aaron Gellman is an economist who founded the Transportation Center at Northwestern University and is one of the leading business advisors to the transportation industry. Both made their contributions to this sector in multiple modes and in relation to diverse policy concerns. Over the years I have seen how their broad exposures across this sector informed their insights into very specific transportation issues.

3. In my professional contacts: This has brought me into regular personal contact with currently serving and former federal transportation officials ranging from Secretaries of U.S. DOT and General Counsel of U.S. DOT, each General Counsel of the U.S. Department of Homeland Security since its creation, the administrators and directors of the various U.S. DOT and U.S. DHS administrations and their chief counsel, and agency lawyers and enforcement officials on the proverbial front lines.

4. As an adjunct professor of law: It is on an across-the-board basis that I teach this subject at The John Marshall Law School’s Center for International Law in Chicago. My transportation law curriculum addresses aviation, maritime, motor carrier, and rail modes, together with stand-alone policy concerns like cross-border homeland security and hazmat.

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