Showing posts with label freight forwarder. Show all posts
Showing posts with label freight forwarder. Show all posts

Thursday, January 23, 2014

Important Differences Between NVOCC (Non Vessel Owned Common Carriers) and Freight Forwarders


There are a number of interchangeable functions between NVOCCs (Non Vessel Owned Common Carrier) and freight forwarders.  However, in certain situations they have important differences which affect transportation protocols.  Knowing the differences can save time and unnecessary paperwork.
  • NVOCCs often both own and operate their shipping containers.  At times, they also lease containers for their use or on behalf of others.  This capability allows them to cutout the middle man and makes the shipping process more efficient.  Freight Forwarders cannot operate this way.
  • The United States and certain other countries require NVOCC operators to report their tariff to the proper government branch, thus creating a public tariff. There is a range country specific rules, including who is the designated point of contact and when contact is to occur.  Freight forwarders are not required to operate this way.
  • Based on where they are operating, NVOCCs may have to assume the status of a virtual carrier.Depending on the jurisdiction, the NVOCC may be required to accept all the liabilities of the carrier.  Although this adds risk and responsibility to the NVOCC, it is considered to be worthwhile.
  • Freight forwarding companies may act as either an agent or partner for a NVOCC.  The NVOCC does not need to be the agent or partner of a freight forwarding company.  This provides more flexibilty and allows NVOCCs to adjust based on the situation.
NVOCCs are frequently termed ship less shipping lines, acting similar to a common carrier, except that an NVOCC does not operate the vessel transporting the container.  The NVOCC brokers space on ships for the aggregate volume of its clients.  Volume garners lower rates which they then pass on to their shippers.  Shippers might choose the services of an NVOCC to avoid damage liability.  The NVOCC can be deemed a carrier who works for shippers and also a shipper to the carriers.
The services provided by a freight forwarder can also be undertaken by the NVOCC.  This includes having personnel available to handle the inland shipping when it reaches its destination, arranging for insurance on behalf of clients and clearing customs (end to end logistics).

Thursday, December 19, 2013

Is The Carmack Amendment Relevant In International Shipments?


International shipments are common in today’s global market with the result that it has become common for product shipment to cross borders to reach the consumer.  The distance and necessity for using different modes of transportation can lead to an increased risk for damaging accidents.
The Carmack Amendment provide a well-established procedure for handling such incidents that happen on interstate trucking shipments in the United States.  However, when an accident occurs in the domestic portion of an international shipment the applicability of the Carmack Amendment is a work in progress.
Currently the Carmack Amendment provides a  standardized national scheme of liability and damages for interstate rail and motor carriers in order to give certainty to both shippers and carriers.  One objective of the amendment is to relieve cargo owners of the onus of discovering which is the offending carrier among what is often a myriad of carriers involved in the interstate shipment of goods.
What is at question is whether the Carmack Amendment applies to multi-transit domestic segments of an international shipment which is covered by one contract such as a bill lading.
In a recent court case, Kawasaki Kisen Kaisha Ltd versus Regal-Beloit Corporation, the Supreme Court ruled that the Carmack Amendment does not apply to the domestic portion of a shipment that originated overseas under a single bill of lading.  Under the Carmack rules only the receiving carrier is required to issue a Carmack compliant bill of lading.  The receiving carrier as defined by Carmack is only the carrier who accepts the shipment at its point of origin. In the Kawasaki case the carrier, Kawaski received the cargo under a through bill of lading that covered the shipment to an inland location in the US and there was no rail carrier who was required to issue a bill of lading under Carmack. 
This Supreme Court decision thus limited Carmack application in international shipments.  However,  it left to open whether the Carmack Amendment applies when the goods intended for export are received in the US and whether it applies in instances involving a freight forwarder or other intermediaries.
More recent lower court rulings appear to expand the direction of the Kawasaki  Court Case with their conclusions that other bodies of law or contracts apply in the domestic portion of international shipments.  This trend of limiting application of the Carmack Amendment in the domestic portion of the international shipment provides strategies for carriers to avoid Carmack liability when drawing up contracts and in litigation.

Thursday, April 11, 2013

Scrap Metal Scams, a Hazard for International Freight Forwarders

 
As prices for all metals continue to climb, there has been an increase in occurances of illicit scrap metal trading. International Freight Forwarding companies are often unwitting accomplices to these schemes. Recently, the British International Trade Association (BIFA) issued a warning to its members and to the international trading community about this issue. The UK Parliament had recently introduced a Scrap Metal Dealers Bill. This bill would make it illegal to pay for scrap metals with cash. The concept was that many scrap metal dealers use cash for their illicit transactions.
 
This concern was addressed by Peter Quantrill, BIFA Director General in an interview with Handy Shipping Guide. His advice was to urge freight forwarders to alert the proper authorities to any suspicions that they have about scrap metal shipments. The UK parliment felt that they had addressed the problem of scrap metal theft by making it illegal to pay for scrap metals with cash. The inadvertent result of such legislation is that the problem has been transferred to freight forwarders as criminals seek to export their stolen scrap metals.
 
BIFA is asking that its members report any suspicious looking shipping containers. Organized criminals use shipping containers to transport stolen scrap metals to various locations. Freight forwarders who handle these containers are in a position to recognize and report such suspicious activities.
 
Some indicators to look for are containers found in unusual locations such as brown fields, industrial units, farms and residential addresses. These unorthodox locations might indicate illegal shipments.
 
Although this warning was issued in the UK, shipping is a global activity and criminal enterprises often cross international boundaries. Freight forwarders across the globe can help to monitor and report instances of criminal activity. Knowing what to look for can help freight forwarders avoid becoming accomplices to criminals seeking to ship stolen scrap metals.

Thursday, March 28, 2013

A Brief Overview of the Carmack Amendment


The Interstate Commerce Act was established in 1887 to deal with the rise of the railroads and the growth of cross country travel and freight delivery. The intent was to regulate interstate transportation.

In 1906, the Carmack Amendment was added to the Interstate Commerce Act which was enacted by Congress to establish uniform federal guidelines for shipping across state lines. These guidelines were designed to reduce confusion surrounding a carrier's liability when there was damage to a shipper's interstate shipment.

The Carmack Amendment establishes the limits of liability for the carriers. The liability imposed is for the “actual loss or injury to the property”. There are no caps on liability the carrier assumes through the Carmack Amendment. Therefor, when the carrier takes possesion of the cargo they become 100% liable for the load.  

The carrier and the shipper sign a contract named a "bill of lading". The Carmack Amendment allows some carriers to limit their liability in this contract. The amount they assume for cargo damage can vary, but it's generally around $1 Per Lb.
The Carmack Amendment supersedes individual state laws and ensures that all parties are treated with one set of rules. This also means that any state law claims can be dismissed, as the Carmack Amendment takes precedence.

There is a protocol for filing claims under the Carmack Amendment. In order to bring a lawsuit, a written claim must be filed with the carrier within nine months of the date of the delivery of the property. If no delivery was made, then the claim needs to be filed within nine months after a reasonable time for delivery has passed.

Feel free to contact us with any questions or concerns you may have about the Carmack Amendment or other shipping related laws. It's our speciality and we're happy to help.

Monday, October 22, 2012

Avoiding a $26 Million Claim

Freight Broker Risk Management 101

You are a Domestic Freight Broker. You gave up your common carrier authority years ago. Now you enjoy the comfort of limited liability thanks to common law and don’t play by the Carmack Amendment. Right?

Many brokers believe that the separation of authorities will nullify the risk of being seriously affected by a lawsuit as a result of the movement of freight. However this is merely one step in a series of steps to help prevent being sued as anything other than a Freight Broker (which enjoys limited liability).

The other day I was reading an insurance policy wording and it was clearly set up to cover damages for a; Motor Carrier, Warehouseman, Freight Forwarder, Logistics ServiceProvider or Other Bailee.

A plaintiff’s attorney would read the policy wording and say “Eureka! We got them now. If they are a freight broker why would they buy coverage for a motor carrier, or freight forwarder? They are clearly holding themselves out to be something other than a freight broker. “

If an auto accident occurs injuring or killing a third party the average settlement is $2.6 Million. The average truck driver only carries $1 Million in liability coverage. What most attorneys do is drag everyone who had anything to do with the shipment into this case including a Freight Broker and those with the deepest pockets.

In recent court cases such as Travelers Insurance a/s/o Vera Bradley Designs v. Panalpina, Inc., 2010 WL 3894105 (N.D. IL. 2010). The courts have upheld the notion that even though you have sole freight broker authority, how you hold yourself out to be (i.e. the way you run your operations, contracts in place, broker/shipper/carrier relationships) plays a big role in how the courts will actually view your authority.  

There are many steps you can take to protect your assets and not face serious punitive damages as a result of death or injury from the movement of freight. One of the best steps is having someone with years of industry experience to review your current business model & current contracts in place. GSIS, Inc. is a leader in Risk Management education and Insurance Solutions. With tailor made products specifically designed for Freight Brokers you will not find yourself in this situation. When it comes to Freight Brokers, GSIS should be your first call & only call every time.   

Tuesday, September 28, 2010

Review of Exposures: Domestic Freight Brokerage Industry

Domestic Freight Broker’s moving freight through third party trucking, rail carriers and airlines have financial exposures that are truly unique from any other industry. A thorough and complete understanding of financial exposure is critical to the long term success of a Freight Broker or Freight Forwarder.

It is important to first understand the risks and financial exposures then design a program with the support of knowledgeable professionals dedicated to the logistics industry. The ultimate goal should be to design a Risk Management, Claims Control and Insurance Program that responds to the exposures that are unique to your firm and the customers you represent.

Unique Exposures for Domestic Freight Brokers:

A company staying within the box of domestic freight brokerage is known as an asset free company. This means they do not move freight with their own equipment but rather use third parties (trucking operations, rail carriers and airlines). As a result, they never take cargo they are hired to move into their care, custody or control. The Carmack Amendment implies that the Freight Broker’s don’t actually assume liability to the cargo they move. This does not, however, guarantee they won’t be dragged into a claim when one arises which means the cost associated with defending themselves and responding to cargo claims can not necessarily be avoided.


Methods of addressing exposures:

 1) Contracts – The trading terms and conditions in which you operate under should communicate the extent of your liability should something go wrong. The Transportation Intermediaries Association (TIA) has a recommended format and it would be advisable to become a member.

Recommended Contracts:
  • A Shipper/Broker Contract establishes an understanding on the extent of broker’s liability to the freight he is moving.
  • A Carrier/Shipper/Broker Contract establishes the extent of liability a carrier (trucker, rail carrier or airline) has to the cargo being moved.
Be aware that most major shipper’s will ask you to sign their format of shipper broker contracts. These contracts should be reviewed with the support of an attorney dedicated to the logistic industry. These contracts should also be reviewed with your insurance agent as your signature could potentially impact the coverage you have in place. Your insurance carriers, in many cases, can invalidate your coverage if you unwittingly increase your legal liability without giving them the opportunity to review and approve of the contract.

2) Technology and Procedures – This can help your firm minimize human error and the exposures that could result from these errors. Technology has been developed specifically to assist freight broker’s track shipments and monitor the insurance coverage a carrier has in place. Written procedures that all employees are required to follow might also help in reducing exposures.

3) Work with Professionals knowledgeable and dedicated to the logistics industry – Attorneys and Insurance Agents have areas of expertise, therefore, you should try to work with professional who are knowledgeable in your industry.
Attorney’s experienced in the risks associated with logistics can help you interpret your exposures, set up a corporation to protect your private assets and provide council on legal issues relating to transportation.

Insurance Agents dedicated to the logistics industry will provide you with insurance carriers and coverage that are unique to this industry. They will also be able to help you evaluate your exposures after better understanding the full extent of the services you offer.

An insurance program can then be designed around the services you offer, the nature of clients you have, the contracts you have in place and the cargo that is moved by your firm.

4) Professional Claims and Recovery Firms – Professional claims adjusters and recovery experts can help freight brokers collect difficult claims from carriers and third parties. Their services are typically offered on a no cure, no pay basis. Fees can range from 30%, to as low as 10% of the amount recovered depending on the size of the claim.

5) Insurance programs designed to address the intricacies of your operation – An insurance policy is a contract that transfers some of the financial risks and exposures inherit in your business to an insurance company willing to accept these exposures. Understanding what is and what is not covered is critical. For that reason, you should request a sample policy, prior to binding coverage, and make sure you read and thoroughly understand your policy. Your insurance agent should be able to help you interpret the policies put in place for your firm. It is a good idea to pose any questions you may have to your insurance agent with a request that underwriters review and respond back in writing. It is important to note that when questions arise that the insurance carrier responds back in writing.

Your policy is the contract in place between you and your insurance carrier therefore it is very important that you have a clear understanding of the coverage it will provide.

Typical Insurance Policies in place for a Freight Broker or Domestic Freight Forwarder include:
  • Contingent Cargo Policy
  • Contingent Cargo/Contingent Auto Liability Policy
  • Shipper’s Interest Cargo program
  • Excess spot Cargo Insurance Program (when Truckers Motor Truck Policy limit isn’t high enough to match value of cargo being shipped)
  • Cargo Legal/Errors & Omissions Policy
  • Comprehensive General Liability Policy
  • Crime and Employee Dishonest coverage
  • Property Insurance – Covering owned building and/or contents
  • Business Auto – Non owned and hired coverage (if employees use their vehicles for company related work)
  • Umbrella policy – Increasing the limit of your GL, Auto Liability or Employee Liability
  • Workmen’s Compensations with employee liability coverage

Small things are often overlooked which can result in serious problems later on. It is important to take the time to be diligent in evaluating the exposures your company will incur. Utilize the support of professionals dedicated to your industry as this will put you in the best position to design your Risk Management, Claims Control and Insurance program to address the exposures your firm could incur moving freight.

Thursday, February 25, 2010

International and Domestic Freight Logistics Operations – A Review of Exposures and Means of Addressing Them.

International and Dometic Logistic Operations, Exposures reviewed.
What service do you provide?
1) Do you act as an International Freight Forwarder?
This operation often offers a multitude of services, where each assumes different liability. For example, you may act purely as freight forwarder or domestic freight broker moving cargo either for export/import or domestic transit. This may be done through the use of a third party carrier including trucking operations, airlines, steamship lines or rail carriers. Your service may include deconsolidation and consolidation of cargo preparing for export in ocean containers or dealing with it on import shipments. For imports a very critical service you may provide is seeing to it that proper documentation is provided. This among other things confirms the shipper’s have been paid for cargo imported prior to releasing cargo to the consignee or their agent.
2) Do you act as a Custom House Broker?
This operation includes processing documentation, collecting duty, the purchase of U.S. Custom bonds on behalf of importers, etc. These processes all relate to the importation of cargo into the U.S. In providing such services, you may operate under specific trading terms and conditions. A common format approved by the NCBFFA (National Custom Brokers and Freight Forwarders Association) is used by many firms and has been used effectively to limit liability to $50 a shipment or entry. Trading terms are often posted on their web site, as well as on the back of the CHB’s invoices. Ideally you have clients sign a contract where these terms are reflected which, among other things, confirms the services you will provide, the charges associated with your services, the responsibilities of the parties involved and the extent of the logistic firm’s liability. If the Shipper/Freight Forwarding contracts are in place and signed by both parties, it is common that they do not have to be issued and signed for each and every shipment in a similar fashion to bill of ladings. As the contract lays out there will be a steady stream of shipments and this contract is intended to address the above issues.
3) Do you act as an NVOCC (Non Vessels Operating Common Carrier)?
NVOCC’s issue House Ocean Bill of Ladings. With this your clients are reflected as the shipper and consignee. They then make arrangements with actual ocean carriers for the actual transit, who in turn issues the Master Bill of Lading where you are reflected as the shipper and an agent you assign at destination is reflected as the party to receive cargo. Ocean bill of ladings, among other things, speak to the extent of liability assumed by the NVOCC and the actual steamship line. These are issued on a shipment by shipment basis. There is often reference to COGSA “the Carriage of Goods by Sea Act” in Ocean Bill of lading formats, as well as Hague Visibly. COGSA applies to shipments to and from the U.S. The essence of COGSA suggests that an ocean carrier liability is limited to $500 a shipping unit, which, depending on how the bill of lading is issued, could be $500 for an entire container. There are often other exclusions commonly present in the bill of lading which could invalidate any liability for the ocean carrier. The reason why owners of cargo should have Shipper’s Interest Cargo insurance in effect is due to the fact that steamship lines and NVOCC’s can limit their liability. Shipper’s Interest Cargo Insurance protects the owner of cargo for the total insured value of a shipment (commonly the C.I.F plus 10% value of the product) should it be lost or damaged in transit. It is common for International Freight Forwarders to have a “Shipper’s Interest Cargo Insurance Policy” in place so they can offer this form of coverage to their customers. The cost of the insurance is passed along to shipper or consignee. It is common to see a fee added to cover the expense of administrating this cargo insurance. The policy form is NOT a legal liability format, but rather a direct physical damage form of coverage. With this you do not have to prove who is liable for the theft or damage of cargo, but rather that it took place during the course of an insured shipment. Shipper’s interest cargo insurance also protects the owners of cargo and freight forwarders for General Average claims which can be significant. General Average is a principle of maritime law where in the event of an emergency, such as the cargo is jettisoned or expenses incurred due to the emergency, that loss is shared proportionately by all parties with a financial interest in the voyage.
4) Do you act as an “Indirect Air Carrier”?
An Indirect Air Carrier offers a service similar to that of an NVOCC, and typical operations are that of issuing the House Airway Bill. The liability of International Air Carriers was established by the Warsaw Convention which limits an air carrier’s liability to $9.07 per lb. Once again, this limited liability creates the need for a Shippers Interest Cargo Insurance.

What is the understanding between you and your client on the extent of liability you assume if something goes wrong? It is important that your client understands the extent of your liability for the services you offer to them. As noted above, it is common practice for an international freight forwarder to operate under the trading terms and conditions of the NCBFFA (National Custom Brokers and Freight Forwarders Association). It is wise to have specific contracts in place with clients so everyone understands the responsibilities and extent of liability assumed by each party. Having awareness of each parties liability helps to identify where and when insurance coverage should be in place.


Insurance Policies to consider as an International Freight Forwarder.

Shipper’s Interest Cargo programs. It is common practice for international freight forwarders to have shipper’s interest cargo insurance programs in place. This allows the freight forwarder to put a very broad form of “direct” physical loss or damage coverage in place for the cargo in which they organize international transit on. This coverage is “Customer Friendly” in that, when a claim occurs, the principal issue that has to be proven is that the cargo did suffer physical loss or damaged during the insured transit in order to be collected.

The Shipper Interest program effectively covers both the freight forwarder and their clients because the freight forwarder is a named insured under the policy. Practically speaking, their client should be indemnified for covered cargo claims, which then gives their client no cause of action against freight forwarder. The freight forwarder is protected from recovery actions/subrogation claims by the insurance carrier providing this coverage as they are a “named insured” under the policy which prevents the insurance carrier from claiming against them. Furthermore, subrogation claims will be pursued against the actual transportation company who provides the transport and who had it in their care, custody and control when the claim occurred.

The premium associated with this coverage is typically generated by reporting each shipment through a “Cargo Insurance” web site specifically set up for a freight forwarder. A rate is established depending on factors such as the transit involved, whether it is an ocean shipment or an air shipment, etc. The premium associated with the shipment is billed to the freight forwarders client and collected along the freight costs associated with the shipment. Many freight forwarders charge a service fee for putting this coverage into effect and offering this service actually becomes another profit center for many forwarders.

Cargo Legal / Errors and Omission policy. The fact alone that most freight forwarders have the option but fail to insure every shipment provides great reason supporting the need to have a Cargo Legal / E&O policy. Cargo Legal/E&O can be designed to address the “legal liability” exposure to cargo moved for clients. A Cargo Legal/E&O policy is not a customer friendly policy, it is rather one that is designed to “defend” the freight forwarder from claims and law suits. One of the principal benefits for covered claims is legal representation and the costs associated with it being assumed by underwriters up to the policy limits in place. The costs can vary significantly in defending one's self, even if it is apparent the company doesn’t have liability under law. Just the costs to extricate the insured from a law suit can be monumental. There is no major down side for a plaintiff’s attorney to drag in as many parties as possible into a law suit to leverage some type of settlement. The cost to defend oneself versus making some type of settlement will often motivate a defendant to end the bleeding and make some type of offer. It then just becomes an economic reality to pay them something to go away and stop the costs of legal representation. This is an unfortunate result of the legal system in the U.S. where losers of law suits are not forced, in most cases, to respond to the defense costs of defendant. In many other countries in the world a plaintiff must pay the expenses of their legal counsel who can’t work for a contingent fee. In additions plaintiff’s who lose their case can be forced to pay the defense costs of a defendant. This helps to avoid a significant volume of law suits but it highly unlikely this will ever be adopted in the U.S. in our opinion.

General Liability policy. This is the most common type of business liability insurance. It is intended to cover legal liability for bodily injury, death and third party property damage. For example, should someone be visiting your office and slips and falls and then sues you for bodily injury. A general liability policy would provide your legal defense and pay any settlement amount you are legally obligated to pay. Some forms are broad enough to address exposures such as third parties who are injured or killed during the unloading of cargo. Other exposures that can be covered by General Liability policies include Personal/Advertising injury, Fire Damage Legal Liability, or Medical Payments to name a few.

An insurance agent can also help with interpretation of the policies that are put in place. It is important for your agent to fully understanding the full extent of services you offer, understand the nature of your client base and the cargo you typically move in order for them to put the proper policies in place.

Other typical Insurance policies in place for an international freight forwarder include the following:

- Contingent Auto Liability Policy.
- Crime and Employee Dishonest coverage.
- Property Insurance – Covering owned building and/or contents.
- Business Auto – Non owned and hired coverage
(if employees use their vehicles for company related work).
- Umbrella policy – Increasing the limit of GL, Auto Liability or Employee Liability policies.
- Workmen’s Compensations with employee liability coverage.
The devil is in the details, so take time to be as diligent as possible in evaluating the exposures your company will incur with the support of professionals dedicated to your industry. That will put you in the best position to design your Risk Management, Claims Control and Insurance program to address the exposures your firm could incur moving freight.