Everybody knows what happened in the U.S. on Sept. 11, 2001.

News about the terrorist attacks dominated the media for some time, and overshadowed other newsworthy events that occurred around the same time.

One such event was the issuance of a new chapter to the INS Inspector’s Field Manual, to update the list of cabotage rules relating to Canadian truck drivers entering the United States.

The memorandum announcing the update was dated Sept.12, 2001, and understandably received less notice than it would have under normal circumstances.

For the most part, the memorandum merely confirmed existing policy on basic cabotage issues, but it did include a new section on “trailer switches” that had not been part of any written policy guidelines in the past.

The issue of trailer switching is a common one, as large carriers try to use their drivers and equipment in the most efficient manner, given the hours of service rules and the routes covered.

A common example would be a company with one driver in the U.S. who is out of hours, and another available driver nearby.

The second driver has already made his U.S. delivery and has picked up a different load for return to Canada. Can the company use that second driver to switch trailers and continue with the inbound load, allowing the first driver to take the outbound (Canada-bound) trailer when he is eligible to return to duty?

The general answer to this question is a strong “No.”

The first driver would be considered to be operating lawfully, because he made an entry to the U.S., made a delivery (by dropping his inbound load) and then returned to Canada with a different trailer.

The second driver, however, violates the cabotage laws after making one delivery in the U.S., by picking up a new load (by switching trailers) in the U.S., and delivering the same load to a second point in the U.S.

The Sept. 12 memorandum addresses the issue of trailer switches and confirms that the above scenario remains an illegal cabotage movement.

The full text of the rule on trailer switches is as follows:

“(A Canadian) driver delivering goods from Canada or Mexico to a point in the United States (or traveling in the opposite direction) may meet at a drop yard or other location and switch trailers with another driver also delivering goods from Canada or Mexico to a different point in the United States (or travelling in the opposite direction), so that, for instance, the drivers may make their deliveries closer to their home in Canada or Mexico, or so that one driver can meet a tighter delivery schedule.

Both drivers must continue in an international move.

On the other hand, a driver coming from Canada or Mexico may not switch trailers with a Canadian or Mexican driver coming from a point within the United States, when the driver coming from within the United States will only be returning to another point in the United States.

In other words, both drivers must either enter or depart the United States with a load.”

The rule appears to be applicable to situations where there are two drivers making either inbound or outbound deliveries, and realize during the course of those deliveries that a switching of trailers puts the drivers in a more favourable position.

Both drivers make inbound deliveries, and pick up loads for return to Canada.

If the drivers realize that a switching of trailers will bring them closer to their respective homes, it makes sense to switch trailers, and that is allowed under the regulation.

Similarly, the same drivers could have made the switch on the inbound trip, if the return loads have Canadian delivery points that are more favorable for them if they switch.

There is ambiguity in the reference to “traveling in the opposite direction.”

But to make the rule logically consistent, it appears that “opposite direction” must mean that the example of a driver making a delivery into the U.S., also applies to a driver departing from the U.S.

It apparently is not intended to refer to one inbound driver and one outbound driver, because there is no way an outbound driver, having already delivered a load in the U.S., can accept a second inbound load.

The regulation makes it clear that following a switch, both drivers must continue in an international movement.

A driver who has already made a delivery in the U.S. cannot accept a second inbound load and take that trailer to another point in the U.S.

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.