UPDATE: Major Changes to the Uniform Straight Bill of Lading Effective Aug. 13, 2016
In addition to the changes to the NMFC Uniform Straight Bill of Lading noted in our Transportation Law News Alert on August 1, 2016, the NMFTA has also revised other provisions of the bill of lading terms and conditions.
Section 3.(c) – shortens the time limit to exactly 2 years instead of 2 years and one day for filing suit against a carrier for loss or damage to cargo. The date on which that time limit starts to run has not been changed.
Section 5.(a) – changes the basis upon which a released valuation may be established for the purpose of limiting the carrier’s liability for lost or damaged cargo [property]. The language in this section formerly read as follows:
“… where a lower value than the actual value of the property has been stated in writing by the shipper or has been agreed upon in writing as the released value of the property as determined by the classification or tariffs upon which the rate is based, such lower value plus freight charges if paid shall be the maximum recoverable amount for loss or damage, …”
The following is the new wording:
“Where a lower value than the actual value of the property has been stated in writing by the shipper on the bill of lading, or is established in the carrier’s tariff upon which the rate to be charged is based, such lower value shall be the maximum amount recoverable for loss or damage.”
Except where the shipper has declared a value on the front of the bill of lading, the new version of Section 5.(a) eliminates the requirement that the released value “has been agreed upon in writing” in order for the carrier’s tariff limitation of liability to apply. Does this portion of the revised Section 5.(a) comply with the provisions of the Carmack Amendment? The statute specifies that a carrier may establish a rate under which its liability is limited only if the cargo value is “established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.” Does the bill of lading constitute a “written agreement between the carrier and shipper” for purposes of the statute? Does this language satisfy the contractual express waiver requirements under 49 USC § 14101(b)?
It is also important to note that NMFC Supplement 2 contains significant changes to NMFC Item 360 — “Bills of Lading, Freight Bills and Statements of Charges.”
A second shipper group has now submitted a document with the Surface Transportation Board requesting the suspension and investigation of the changes to the Uniform Straight Bill of Lading and Item 360. The shipper groups’ STB Petitions are docketed as ISM-35008-0.