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Why Quebec carriers joined a cabotage suit filed in U.S. Court

In the past year or two, I have commented on the ongoing discussions among the governments and trucking industries in Canada and the U.S.The subject of these discussions has been the cabotage laws of ...


Daniel Joyce
Daniel Joyce

In the past year or two, I have commented on the ongoing discussions among the governments and trucking industries in Canada and the U.S.

The subject of these discussions has been the cabotage laws of each country, which restrict foreign drivers from making point-to-point pick ups and deliveries.

These discussions were directly responsible for some changes in the U.S. customs laws relating to the use of Canadian-based equipment in the U.S.

However, the U.S. Immigration and Naturalization Service (INS) has not yielded at all in its strict interpretation of the cabotage laws.

From time to time, the discussions of the parties have looked promising, but meaningful progress has not been achieved.

This is due in part because of the lack of any real leverage on the part of the trucking industry to push things along.

On Jan. 25, in particular, someone created a “push.”

On that date, 19 Quebec motor carriers joined as plaintiffs in a lawsuit filed by attorney Jeremy Kahn, of Washington D.C.

The suit, filed in federal court in the District of Columbia, was launched against the INS, seeking a declaratory judgment from the court as to the legality of certain common transportation practices.

A declaratory judgment does not seek compensation or any form of monetary remedy.

It merely asks the court to interpret the law in relation to one or more specific factual scenarios.

After putting forward some basic preliminary information about the carriers and the reason the lawsuit was filed in the first place, the complainant – in this case, the lawyer for the carriers – presents nine “fact-patterns” involving Canadian drivers who have entered the U.S., pulling freight loaded in Canada with a destination in the U.S.

Some of the scenarios are as follows:

Relief Drivers: Driver B takes over for driver A. In one scenario, they have entered the U.S. as a team, and in another scenario, driver B has entered separately.

Switching of drivers or trailers: Driver B takes over for driver A, and continues to the U.S. destination.

Driver A either returns to Canada or delivers driver B’s original load.

Deadheading: After making the delivery, the driver either bobtails or pulls the empty trailer to a point at which he picks up a return Canadian-bound load.

Repositioning or Shuttle Moves: Point-to-point deliveries in the U.S. that are either incidental to the international movement, or made to facilitate a return trip.

Intermodal Cans: Movement of international goods between piers or staging yards in the U.S.

The scenarios fall into two general categories.

The first involves the use of one-or-more Canadian drivers to accomplish the delivery of international goods with an origin in Canada and destination in the U.S.

The INS has historically ignored the international character of the merchandise and the overall international nature of the delivery, and has focused on isolated domestic segments of deliveries to find illegal point-to-point movements.

The second category consists of movements that are lawful use of Canadian-based equipment under the U.S. Customs rules, but which have been deemed to violate the INS laws with respect to Canadian drivers.

The scenarios are presented in a progression that does not require the court to find all of them to be either legal or illegal.

It is quite possible that a court would follow the progression and find legality up to a certain point.

For example, I have commented many times in this column on the differing rationales behind the U.S. immigration laws and customs laws.

As I’ve said before, it is not necessarily illogical to have cabotage laws for Canadian equipment that differ from the cabotage laws relating to Canadian drivers.

In order to show why a remedy is necessary, a lawsuit normally has to state the harm to the aggrieved party.

In this case, the parties have claimed that the confusion surrounding the cabotage laws results in inefficiencies that result in unnecessary delays and costs for Canadian truckers.

To the extent that a Canadian carrier misinterprets the rules and does something illegal, there can be severe consequences, such as deportation of drivers and seizure of vehicles.

To the extent the Canadian carrier fails to take action that is legal, it can suffer from the “opportunity cost” of a loss of business and the added cost of arranging for U.S. carriers to handle deliveries that the Canadian carrier could have handled itself.

No one is expecting an immediate response on this, but at least there is something on the table that won’t go away without being evaluated and answered.

We will keep you updated on the progress.

On a final, unrelated note, we would like to point out a feature article in the Detroit News recently.

The article reports on the new technology available to Michigan State Police in the form of electronic road sensors and portable scales which expand the State’s ability to detect and prove overweight violations.

The number of overweight citations in Michigan has increased by about 33 per cent from 1998 to 2000, and the number of over-dimensional citations has more than doubled during that period.

Needless to say, you’d better make sure you have your permits in place before entering the State of Michigan. n


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