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Friday, August 19, 2011
Time to Pass Long Overdue US - Korean Free Trade Agreement
Focus On Export Bright Spot To Boost Jobs | The New Republic
Dear Congress,
Welcome back from your vacations. I hope you enjoyed your rest. While you were catching up on sleep following your complete failure to get our economy under control, more jobs have been lost. Increasing exports means new jobs here. Pass the US - Korea FTA already!! Similar agreement has increased exports from Europe while we are missing out on the opportunity. Focus on the people, not the partisan maneuvering. US production of goods + exports = jobs in the USA. Pretty simple stuff folks.
Sincerely,
Your Constituents
Dear Congress,
Welcome back from your vacations. I hope you enjoyed your rest. While you were catching up on sleep following your complete failure to get our economy under control, more jobs have been lost. Increasing exports means new jobs here. Pass the US - Korea FTA already!! Similar agreement has increased exports from Europe while we are missing out on the opportunity. Focus on the people, not the partisan maneuvering. US production of goods + exports = jobs in the USA. Pretty simple stuff folks.
Sincerely,
Your Constituents
Thursday, August 18, 2011
Mid-August Intermodal Outpaces 2010 Levels
Mid-August Intermodal Outpaces 2010 Levels
Glad to see this in the news today. Just back from Port Newark a little while ago too. Lots of action!
Glad to see this in the news today. Just back from Port Newark a little while ago too. Lots of action!
Tuesday, August 16, 2011
Who is the "Public Enemy?"
In one of my LinkedIn groups today, an attorney posted the question of whether there were any cases explaining what is the "public enemy" as it is one of the few enumerated defenses to a motor carrier's liability under the Carmack Amendment. No one found any cases explaining what it is in that context, so I turned to US COGSA and anything else I could get my hands on. Below is my response.
The best I can synthesize is that the "public enemy" must be one that is an enemy of the sovereign itself, not of the owner of the goods.
I did not find any Carmack cases on the subject. For an analogous view, I looked at the admiralty side, and the Carriage of Goods By Sea Act (TITLE 46, App. Ch. 28 § 1304(f), wherein "Acts of Public Enemies" is an enumerated defense.
See International Harvester Co. v. TFL Jefferson, 695 F. Supp. 735, 739 (SDNY 1988), ("the common law provided an exception to a carrier's absolute liability for the safe arrival of goods when the loss was caused by "the public enemy" or "the King's enemy" and the carrier was not at fault. See G. Gilmore & C. Black, supra, § 3-22 at 139-40; 1 Carver's, supra para. 20.").
Referring to my own treatisies, "[A]n act performed in the prosecution of war might be the act of an enemy of the carrier's country, though the term might be equally well applied to the actions of military or naval forces of a nation at war with some country unconnected with either the carrier or the goods." G. Gilmore & C. Black, supra, § 3-34 at 164. And, in Schoenbaum, Admiralty and Maritime Law Hornbook, Carriage of Goods, § 8-29 at 589 (2d Ed. 1994), "Act of war need not be declared war in the international sense. Act of public enemies refers to enemies of the sovereign of the shipowner. Russel v. Niemann, [1864] 17 C.B. (N.S. 163). Any bellicose act including terrorism would appear to be covered. Scrutton, Charter Parties, 222.
And back in ancient history--Coggs v Bernard (1703) 2 Ld.Raym 909, by Lord Holt:
"As to the fifth sort of bailment, viz., a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts; either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of the common carrier, common hoyman, master of a ship, &c.; which case of master of a ship was first adjudged, 26 Car. 2, in the case of Mors v. Slew, Raym. 220. 1 Vent, 190, 233. The law charges this person thus entrusted to carry goods, against all events, but acts of God, and of the enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, &c, and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." See <http://www.lawandsea.net/List_of_Cases/C/Coggs_v_Bernard_1703_2_LdRaym_909.html>.
More recently, in New York Marine & Gen. Ins. Co. v. M/V "RAUTEN", 1999 U.S. Dist. LEXIS 1513 (S.D.N.Y. Feb. 11, 1999), a COGSA case wherein CSAV moved for summary judgment based on the "acts of public enemies" defense, Judge Chin denied the motion in part because there was not a clear definition of what are acts of piracy or public enemy (citing to David Crystal).
As an example, in a post 9-11 Carmack world, I would argue that a truck load of ammonium nitrate moving interstate hijacked by a terrorist cell connected with al Queda would rise above the level of mere hijacker and would be an act of a public enemy, assuming of course that the intention that the goods would be used in carrying out an attack on the government and/or the public.
I am all ears for any input on this very interesting topic.
--Tom
The best I can synthesize is that the "public enemy" must be one that is an enemy of the sovereign itself, not of the owner of the goods.
I did not find any Carmack cases on the subject. For an analogous view, I looked at the admiralty side, and the Carriage of Goods By Sea Act (TITLE 46, App. Ch. 28 § 1304(f), wherein "Acts of Public Enemies" is an enumerated defense.
See International Harvester Co. v. TFL Jefferson, 695 F. Supp. 735, 739 (SDNY 1988), ("the common law provided an exception to a carrier's absolute liability for the safe arrival of goods when the loss was caused by "the public enemy" or "the King's enemy" and the carrier was not at fault. See G. Gilmore & C. Black, supra, § 3-22 at 139-40; 1 Carver's, supra para. 20.").
Referring to my own treatisies, "[A]n act performed in the prosecution of war might be the act of an enemy of the carrier's country, though the term might be equally well applied to the actions of military or naval forces of a nation at war with some country unconnected with either the carrier or the goods." G. Gilmore & C. Black, supra, § 3-34 at 164. And, in Schoenbaum, Admiralty and Maritime Law Hornbook, Carriage of Goods, § 8-29 at 589 (2d Ed. 1994), "Act of war need not be declared war in the international sense. Act of public enemies refers to enemies of the sovereign of the shipowner. Russel v. Niemann, [1864] 17 C.B. (N.S. 163). Any bellicose act including terrorism would appear to be covered. Scrutton, Charter Parties, 222.
And back in ancient history--Coggs v Bernard (1703) 2 Ld.Raym 909, by Lord Holt:
"As to the fifth sort of bailment, viz., a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts; either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of the common carrier, common hoyman, master of a ship, &c.; which case of master of a ship was first adjudged, 26 Car. 2, in the case of Mors v. Slew, Raym. 220. 1 Vent, 190, 233. The law charges this person thus entrusted to carry goods, against all events, but acts of God, and of the enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, &c, and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." See <http://www.lawandsea.net/List_of_Cases/C/Coggs_v_Bernard_1703_2_LdRaym_909.html>.
More recently, in New York Marine & Gen. Ins. Co. v. M/V "RAUTEN", 1999 U.S. Dist. LEXIS 1513 (S.D.N.Y. Feb. 11, 1999), a COGSA case wherein CSAV moved for summary judgment based on the "acts of public enemies" defense, Judge Chin denied the motion in part because there was not a clear definition of what are acts of piracy or public enemy (citing to David Crystal).
As an example, in a post 9-11 Carmack world, I would argue that a truck load of ammonium nitrate moving interstate hijacked by a terrorist cell connected with al Queda would rise above the level of mere hijacker and would be an act of a public enemy, assuming of course that the intention that the goods would be used in carrying out an attack on the government and/or the public.
I am all ears for any input on this very interesting topic.
--Tom
Monday, August 15, 2011
Welcome Aboard
Dear Readers,
Welcome to my new blog entitled, "It's All About the Goods." No esoteric or existential meanings intended. The purpose of this blog is to exchange ideas about all issues concerning the movement and care of Goods from Point A to Point B. Whether you call it cargo, freight, or just plain stuff. This is about "bread-and-butter" topics such as contracts, law, insurance, carriage, storage, distribution, warehousing, regulations, cold chain--you name it--about the ubiquitous "widget" (in the economic sense as some sort of manufactured device, not as a software platform). What kinds of goods? Everything from steel pipe to cotton shirts to viagra pills to liquid bulk gasoline to digital cameras to fresh fruit to frozen shrimp. Even works of art and precious metals. I will present issues that arise in my daily life as a "Goods Litigator," (please visit my About.me site http://about.me/edit/ThomasMGrassoEsq) and I invite you to share your ideas for discussion. Thanks again for visiting!
Best regards,
Tom
Welcome to my new blog entitled, "It's All About the Goods." No esoteric or existential meanings intended. The purpose of this blog is to exchange ideas about all issues concerning the movement and care of Goods from Point A to Point B. Whether you call it cargo, freight, or just plain stuff. This is about "bread-and-butter" topics such as contracts, law, insurance, carriage, storage, distribution, warehousing, regulations, cold chain--you name it--about the ubiquitous "widget" (in the economic sense as some sort of manufactured device, not as a software platform). What kinds of goods? Everything from steel pipe to cotton shirts to viagra pills to liquid bulk gasoline to digital cameras to fresh fruit to frozen shrimp. Even works of art and precious metals. I will present issues that arise in my daily life as a "Goods Litigator," (please visit my About.me site http://about.me/edit/ThomasMGrassoEsq) and I invite you to share your ideas for discussion. Thanks again for visiting!
Best regards,
Tom
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