Transportation & Logistics Council, Inc. · 2015-04-07 · TranSolutions, Inc. Williams &...

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TRANSDIGEST Transportation & Logistics Council, Inc. Published by the TRANSPORTATION & LOGISTICS COUNCIL, INC. 120 Main Street ● Huntington, NY 11743-8001 ● Phone (631) 549-8984 ● Fax (631) 549-8962 Website: wwwTLCouncil.org ● email: [email protected] George Carl Pezold, Executive Director William J. Augello (1926 – 2006), Founding Director Raymond A. Selvaggio, General Counsel Stephen W. Beyer, Editor VOLUME XX, ISSUE NO. 205, MARCH 2015 President’s Report on 41 st Annual Conference Overbilling vs. Overpayments Crumbling Infrastructure West Coast Port Dispute Fallout FedEx Seeks to Dismiss Charges National Motor Carrier Hiring Standards CCPAC Announces New Board & New CCPs More Q&A’s NOW AVAILABLE! Q & A IN PLAIN ENGLISH - BOOK 10 150 ALL-NEW QUESTIONS & ANSWERS!

Transcript of Transportation & Logistics Council, Inc. · 2015-04-07 · TranSolutions, Inc. Williams &...

Page 1: Transportation & Logistics Council, Inc. · 2015-04-07 · TranSolutions, Inc. Williams & Associates, Inc. Mark your Calendars for the Transportation & Logistics Council’s 42 nd

TRANSDIGEST Transportation & Logistics Council, Inc.

Published by the TRANSPORTATION & LOGISTICS COUNCIL, INC.

120 Main Street ● Huntington, NY 11743-8001 ● Phone (631) 549-8984 ● Fax (631) 549-8962

Website: wwwTLCouncil.org ● email: [email protected]

George Carl Pezold, Executive Director

William J. Augello (1926 – 2006), Founding Director

Raymond A. Selvaggio, General Counsel Stephen W. Beyer, Editor

VOLUME XX, ISSUE NO. 205, MARCH 2015

President’s Report on 41st Annual Conference

• Overbilling vs. Overpayments

• Crumbling Infrastructure

• West Coast Port Dispute Fallout

• FedEx Seeks to Dismiss Charges

• National Motor Carrier Hiring Standards

• CCPAC Announces New Board & New CCPs

• More Q&A’s

NOW AVAILABLE!

Q & A IN PLAIN ENGLISH - BOOK 10

150 ALL-NEW QUESTIONS & ANSWERS!

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Table of Contents

ASSOCIATION NEWS ......................................... 2

CLASSIFICATION ............................................... 9

MOTOR ............................................................ 10

OCEAN ............................................................. 13

PARCEL EXPRESS ............................................ 15

QUESTIONS & ANSWERS ................................ 16

TAB ................................................................. 19

CCPAC NEWS ................................................. 19

ADVERTISE IN THE TRANSDIGEST ................ 20

ASSOCIATION NEWS

PRESIDENT’S REPORT ON 41ST ANNUAL CONFERENCE

By Nadia Martin, CCP President, Transportation & Logistics Council

The 41st Annual Conference in Orlando, FL was a huge success. With attendance over 200 for another year, the Transportation & Logistics Council continues to provide an exceptional educational opportunity to the transportation and logistics industry. T&LC is unique to other organizations by involving all parties in the transportation and logistics industry at the conference which allows everyone a chance to share ideas, concerns and to work together to resolve issues.

Our Optional Seminars before the conference on Sunday were “Contracting for Transportation & Logistics Services”, “Freight Claims in Plain English”, “Transportation Logistics and the Law” and the CCP Primer Class. Attendees received valuable information, industry updates and an opportunity for a more personal education due to the small classroom setting. If you did not get a chance to attend one of these seminars, they will be offered during the Fall Seminar session.

The conference opened on Monday with an exciting general session, the Transportation Industry Update. Top representatives from the industry and trade press gave an update on current issues and their predictions for what’s to come in the industry. This is always a crowd pleaser that gets everyone excited for the conference.

After the opening general session, attendees were able to attend several workshops and general sessions that presented more industry information with opportunities to ask questions at the end. Monday’s workshops included “New Laws and Regulations”, “Freight Claims & Cargo Insurance”, “Reverse Logistics”, and “Saving Transportation $$$”. The general session, “Law of the Land, Law of the Jungle” continued its reputation of businessmen “telling it like it is” and lawyers “explaining the law”. This session never disappoints. During lunch, James Welch, CEO, YRC Worldwide spoke about his humble beginnings in the industry. At just 23 years old, Mr. Welch began his career with Yellow Transportation and by 2000 became the president and CEO. After a short retirement, Mr. Welch returned to YRC Worldwide as CEO. Mr. Welch gave an eye opening, educational and inspiring outlook to the industry.

Tuesday started with a general session, “Strategic Cargo Theft Scams, Trends and Solutions” with D.Z. Patterson from TIS Specialty Investigation Group, Travelers. Patterson discussed the trends in cargo theft, commodities that were “hot” targets for theft, and ways to avoid cargo theft. Tuesday continued with the “Transportation Attorneys Panel” session. This is always a great time for attorneys to address current issues and recent court decisions. The audience is encouraged to ask the attorneys questions and the crowd loves when they disagree. Who wouldn’t love a good battle between top attorneys? Tuesday also included 4 exceptional workshops: “Explaining the National Motor Freight Classification”, “Contracts & Risk Management”, “Shipping by Air” and the “Meet the Experts” session. As if this wasn’t enough for Tuesday,

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we had the privilege of Jack Van Steenburg, Chief Safety Officer and Assistant Administrator with the FMCSA speak during lunch. Mr. Van Steenburg brought to light new regulations and welcomed questions from the audience.

The 41st Annual Conference ended on Wednesday with two very popular general sessions, “Loss Prevention and Mitigation of Damages” and “Freight Claims Q&A”. Both sessions were well attended and provided attendees a final chance to ask questions and gain industry knowledge.

With all of the educational opportunities provided, T&LC took Tuesday evening to celebrate the success of the conference and gave attendees a chance to relax, network and to show off their dancing skills. Our President’s Reception included a delicious buffet meal, beautiful piano music during dinner and dancing to work off dinner. A great time was had by all as everyone danced the night away.

The Transportation & Logistics Council has seen tremendous growth over the years as industry experts realize that being educated is the best thing for their career and company. T&LC continues its long standing tradition of being the BEST education opportunity in the industry. Through our growing LinkedIn page (that currently has over 1500 members), our website, the TRANSDIGEST, fall seminars and annual conference, T&LC reaches everyone in the industry and provides the necessary education for success. Please visit our website and LinkedIn page for current industry news, upcoming seminars and to find the presentations from this year’s conference.

Finally, I would like to thank our members, sponsors, T&LC staff, and the Board of Directors for making the conference a success. I appreciate all of the hard work and dedication you each put into our success. I look forward to seeing everyone next May in Albuquerque, NM – the Land of Enchantment.

TRANSPORTATION & LOGISTICS COUNCIL, INC.

2015 OFFICERS AND BOARD MEMBERS

CHAIRMAN PRESIDENT

Reed Tepper Nadia Martin, CCP

Parker Hannifin Blakeman Transportation [email protected] [email protected]

Vice President SECRETARY/TREASURER

Curtis Hart Marla Wolter

OHL North America Transportation 3M [email protected] [email protected]

Region Regional Directors Assistant Regional Directors

1

Kristen Walberg, CCP

National Claims Management Group

Wally Dammann, CCP

Mitsui Sumitomo Marine Mgmnt (USA)

2

David Fleming

US Cold Storage

Angie Sutton

Logistics & Distribution Services Corp. [email protected]

3

David Broering

NFI Industries [email protected]

Carrie Mercie, CCP

Schwan’s Global Supply Chain [email protected]

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4

Brian Kiel

Nestle [email protected]

Sandra Orr

ITW [email protected]

5

Douglas L. Arents

Rite Hite Corporation [email protected]

Phillip Lamb

Coyote Logistics [email protected]

6

Phillip Wise

Sysco [email protected]

7

Jerrod Slaughter

Columbia Sportswear [email protected]

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EXHIBITORS

Thanks to the following exhibitors for helping to make TLC’s 41st Annual Conference a great success:

ADOC 6718 Whittier Avenue, Suite 110 MeLean, VA 22101 Matt Shakeri [email protected] www.trackroad.com Tel (800) 876-2040

American Truck & Rail Audits

18 Remount Rd N. Little Rock, AR 72118 John Via [email protected] www.amtr.com

Tel (501) 813-8099

BSI Supply Chain Solution

4250 Drinkwater Blvd, Suite 210 Scottsdale, AZ 85251 Kara Martin [email protected] www.bsigroup.com

Tel (480) 448-7278

CARGO SALVAGE CLAIMS

3215 So. Pennsylvania Ave. Indianapolis, IN 46227 Donna Wyss [email protected] www.cscsalesnet.com Tel (800) 654-7629

CHEMTREC 2900 Fairview Park Dr. Falls Church, VA 22042 Brian Banks [email protected] www.chemtrec.com Tel (703) 741-5510

Diebold Security 1790 Graybill Road, Suite 100 Uniontown, OH 44685 John Shaw [email protected] www.dieboldsecurity.com Tel (855) 331-0359

Regiscope Digital Imaging Co., LLC

927 Stuyvesant Ave Union, NJ 07083 John Adams and Brian Tilma [email protected] www.regiscope.com

Tel (908) 403-2050

Reverse Logistics Association

441 W. Main St. Lehi, UT 84043 Gailen Vick [email protected] www.rla.org

Tel (571) 205-4838

TranSolutions, Inc.

22015 N. Calle Royle Scottsdale, AZ 82555 Pete Celestina [email protected] www.transolultionsinc.com

Tel (908) 403-2050

University of Wisconsin - Superior

1800 Grand Ave Superior, WI 54880 Sheryl Homan [email protected] www.uwsuper.edu

Tel (715) 394-8469

Virtual Freight Inspections

W176 N9810 Rivercrest Dr. Germantown, WI 53022 Don Mealy [email protected] www.vfinspections.com

Tel (715) 394-8469

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DOOR PRIZE DONORS

Thanks also to the following companies that generously donated door prizes for the Conference.

ABF Freight Columbia Rite Hite Unipro Food Service The Wooster Brush Coyote Schneider Perimeter Global Logistics UPS

A special thanks to SONY for generously donating this year’s Grand Prize:

55” Full HD LED LCD Smart 3D TV and to Trans Audit for

contributing two (2) Bose SoundLink® Portable Bluetooth Speaker

III, speakers to be used with the grand prize.

Congratulations to Grand Prize Winner: Steve Haskins, Miller

Intermodal Logistics Services, Inc.

HOSPITALITY SUITE SPONSORS

Attendees thoroughly enjoyed the Hospitality Suites on Sunday and Monday evenings, thanks to the following for their generous donations and sponsorship:

GOLD SPONSORS

Purolator International

SILVER SPONSORS

ABF Freight System, Inc. C. H. Robinson Coyote Benesch, Friedlander, Coplan & Aronoff MTI Inspection Services Pezold, Smith, Hirschmann & Selvaggio, LLC Transportation Intermediaries Association

BRONZE SPONSORS

Broussard Logistics

Hub Group Logistic Concepts SciQuest, Inc. TranSolutions, Inc. Williams & Associates, Inc.

Mark your Calendars for the Transportation & Logistics Council’s 42nd Annual Conference to be held May 2, 2016 – May 4, 2016 at the Crowne Plaza, Albuquerque, New Mexico.

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NEW MEMBERS

The Transportation & Logistics Council would like to welcome the following new members:

Regular Members

Tim Smith

Gerdau Special Steel 5591 Morrill Rd Jackson, MI 49201 [email protected]

Jerry Tackett

Integra Logistics Services 413 Chorus Rd Fort Mill, SC 29715 [email protected]

Michael Williams

Law Offices of Michael P Williams, PA 1723 Penman Road Jacksonville Beach, FL 32250 [email protected]

Mark Yunker

Ahmann & Martin Co 7555 Market Place Drive Eden Paririe, MN 55344 [email protected]

Joe Hurst

Veroot 211 S. Court St. Medina, OH 44256 [email protected]

C.J. Brantner [corrected email]

Ruan Transport 5325 Wall Street, Suite 2055 Madison, WI 53718 [email protected]

CLASSIFICATION

FUTURE COMMODITY CLASSIFICATION STANDARDS BOARD (“CCSB”) DOCKETS

Docket 2015-2 Docket 2015-3

Docket Closing Date April 2, 2015 July 30, 2015

Docket Issue Date April 30, 2015 August 27, 2015

CCSB Meeting Date June 2, 2015 September 29, 2015

Dates are as currently scheduled and subject to change. For up-to-date information, go to http://www.nmfta.org.

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MOTOR

DO YOUR CARRIER CONTRACTS PROTECT YOU FROM OVERBILLINGS AND

OVERPAYMENTS AND DISTINGUISH BETWEEN THEM?

By Chad Kennedy, TransAudit

Overbillings and overpayments are two very distinct issues that must be dealt with in all transportation contracts, as different statutes of limitation and laws govern them. Overbillings occur when a carrier, for example, bills a shipper at the wrong rate, calculates charges incorrectly, or has been reimbursed for inapplicable accessorials. Overpayments are situations whereby a carrier is financially compensated too much for a transaction, such as duplicate payments, payments to the wrong party, payments of revised and original bills, etc.

It is important that your contracts segregate overbillings and overpayments, as carriers typically like to treat them equally and limit the amount of time available for recourse on any excess funds received. Statutes of limitation for overbilling recourse are typically set by mode of transportation and vary from 6 months to 3 years. Overpayment reimbursement is governed by the jurisdiction in the place where the transaction took place and varies from 5 to 8 years in arrears. As overpayments typically have a greater financial impact, as the full transaction was over-remitted, carriers often try to comingle overpayments with the shorter filing statute for overbillings.

Regardless of statutory provisions, the shipper and carrier should agree in their contracts as to the terms pertaining to the reimbursement of overbilling and overpayments. Too many times, we see that shippers have forfeited their rights by shortening the amount of time for which they can seek reimbursement for overbillings or overpayments. Best practices suggest that contract time limits for overbilling claims should be set at least 12 months for surface transportation, 2 years for rail, and 3 years for international ocean and air shipments. Contractual time limits for overpayment claims should be addressed separately and set at no less than 5 years.

DECLINING U.S. INFRASTRUCTURE AFFECTS EVERY BUSINESS’ SUPPLY CHAIN

Reprinted from Broussard Logistics

If your business relies on inbound freight for raw materials or inventory, or ships out finished products via truck, rail or air, then it is absolutely dependent on the transportation infrastructure of the U. S.

Much has been made in the last few years, but particularly in recent weeks, about our nation’s declining infrastructure. You may have heard our President’s call to action during his State of the Union speech a few weeks ago. The cause for concern is not unfounded. The American Society of Civil Engineers (“ASCE”) gives the United States a grade of D+ and estimates that we must invest $3.6 trillion by 2020 to address the needs.

Highways, roads, and bridges that provide our trucking industry lanes to move valuable freight to and from customers are badly in need of repair. Our country’s airports are overdue for renovation or overhaul to support new planes and increasing traffic, yet the last new airport to open was over two decades ago in Denver. Our nation’s railroads are handling more product than ever before due, in large part, to advances in energy and oil & gas. Yet we continue to fall further behind because our nation’s leaders refuse to act.

In January 2015, the American Trucking Association called on members of the 114th Congress to approve an increase of federal fuel taxes to fund infrastructure programs under a long-term highway bill. In a similar letter, the U.S. Chamber of Commerce and AAA supported a similar approach to avert a transportation crisis set to unfold if the Highway Trust Fund reaches insolvency in May, as the current transportation bill expires.

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Many businesses have invested over the last several years in their own supply chains. Investments in leading edge logistics technology, improved freight claims management, and freight auditing have greatly helped control transportation costs. All this investment, however, goes to waste if trucks cannot deliver on time due to congested or closed highways and bridges. For a country as car-centric as we are, our spending on roads relative to GDP doesn’t reflect it.

As The Economist reported in June 28th, 2014, “America saw two great booms in infrastructure spending in the past century, the first during the Great Depression, when the Pulaski skyway was built, and the second in the 1950s and 60s, when most of the interstate highway system was. Now, it spends about as large a share of GDP on roads as Sweden, where public transportation is pretty good.”

For a country whose economy is so dependent on getting goods and services to and from markets across the nation and around the world, let’s hope that our leaders can come together and forge a plan to invest in American infrastructure.

Our very economy, and your business, depends on it.

MORE ON INFRASTRUCTURE

The American Road and Transportation Builders Association (“ARTBA”) review of federal data concluded that there are more than 61,000 structurally deficient bridges nationwide in need of significant upgrades and repairs. The reality is this means that trucks and other vehicles cross structurally compromised bridges more than 200 million times a day.

A resolution of this problem will require committed action by legislators at all levels of government, along with funding. Hopefully, funding will be forthcoming as Transportation Secretary Anthony Foxx sent a six-year, $478 billion transportation reauthorization legislative proposal to Congress March 30, called the “Grow America Act”.

Amongst other things, the Act authorizes $317 billion for highway programs that are essential to the trucking industry and other sectors. It also authorizes $115 billion for transit systems, $18 billion for a multimodal freight program, and $7.5 billion for the Transportation Investment Generating Economic Recovery, or TIGER grant program, as well as expanding funding for safety programs.

One of the obstacles is likely to be how to fund the Act. Earlier this year, the administration indicated in its fiscal 2016 budget request to Congress that about half of the plan’s price tag would be financed with revenue from a one-time, 14% tax on those earnings U.S. corporations have kept overseas. This is not likely to be supported by Republicans on Capitol Hill, who control both chambers. They state they intend to unveil a plan of their own that would ensure long-term funding for highway programs before the current funding authority expires May 31.

Last year, GOP leaders did not act on the previous Grow America Act that would have authorized $302.3 billion over four years. They instead approved the 10-month funding extension for highway programs that expires May 31.

Visit http://www.dot.gov/grow-america/fact-sheets/overview for an overview of the Act.

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Editor’s Note: For a serious, but amusing take on the infrastructure problem, comedian John Oliver did a segment on his HBO show available at https://www.youtube.com/watch?v=Wpzvaqypav8 [Warning: some crude language]

NATIONAL MOTOR CARRIER HIRING STANDARDS

On February 26, 2015 H.R. 1120, a bill to enhance interstate commerce by creating a National Hiring Standard for Motor Carriers, was introduced in the House of Representatives by Reps. John Duncan, R-TN, Rodney Davis R-IL, Richard Hanna, R-NY, Mark Meadows, R-NC, and Erik Paulsen, R-MN.

The language of the bill provides:

(a) Limitation on State Law- Subject to subsection (b), a State may not enforce a law or impose liability on an entity that hires a motor carrier for the transportation of property or household goods if such liability arises from a claim or cause of action related to the negligent selection of such motor carrier under common law, statutory law, or any rule, regulation, standard, or provision having the force of law, for personal injury, death, or damage caused to cargo or other property by such motor carrier.

(b) Requirements for Immunity From Liability- To be eligible for the liability immunity described in subsection (a), an entity shall, prior to tendering a shipment, but not more than 35 days before the pickup of a shipment by the hired motor carrier, verify that the motor carrier at the time of such verification--

(1) if applicable, is registered with and authorized by the Federal Motor Carrier Safety Administration to operate as a motor carrier or household goods motor carrier;

(2) has the minimum insurance coverage required by Federal regulation; and

(3) does not have an unsatisfactory safety rating issued by Federal Motor Carrier Safety Administration, in force at the time of the verification.

(c) Definitions- In this section--

(1) the term `entity' means a person acting as a shipper, or as a broker, as a consignee, a freight forwarder, or a household goods freight forwarder as defined in section 13102 of title 49, United States Code, a Non-Vessel Operating Common Carrier, an ocean freight forwarder, or an ocean transportation intermediary, as defined in section 40102 of title 46, United States Code, an indirect air carrier authorized to operate under a Standard Security Program approved by the Transportation Security Administration, a customs broker licensed in accordance with section 111.2 of title 19, Code of Federal Regulations, an interchange motor carrier as defined by and subject to the provisions of section 13902(i)(1)(B) and (2) of title 49, or a warehouse as defined in Article 7-102(13) of the Uniform Commercial Code as promulgated by the Uniform Law Commission and American Law Institute;

(2) the term `motor carrier' means a motor carrier or a household goods motor carrier as defined in section 13102 of title 49, United States Code, and subject to Federal motor carrier financial responsibility and safety regulations; and

(3) the term `State' means each of the 50 States, a political subdivision thereof, any intrastate agency, any other political agency of 2 or more States, the District of Columbia, American Samoa, the Commonwealth of the Northern Mariana Islands, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

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This bill is an attempt to resolve a problem that has faced purchasers of transportation services since the inception of the federal Compliance, Safety, Accountability (“CSA”) initiative in 2010.

Under the CSA program, carriers are assigned scores in several safety categories, including unsafe driving, hours of service compliance and vehicle maintenance. Those CSA scores, which can change monthly, are not linked to a carrier’s safety fitness rating, assigned after a Federal Motor Carrier Safety Administration (“FMCSA”) audit. And while the FMCSA is working on a rule that would link a carrier’s CSA scores to its safety ratings, it hasn’t happened yet.

The resulting problem is that carrier customers, the purchasers of transportation services, are facing potential liability for negligent hiring practices if litigation ensues. Under this bill, a federal standard sanctioned by Congress would provide shippers, brokers and other purchasers of transportation services with immunity from liability so long as they made the proscribed carrier verification by ensuring that carrier is properly registered with the FMCSA, has obtained the minimum insurance required by the FMCSA and has not been given an “unsatisfactory” safety fitness rating.

One shortfall of the bill is that it only requires customers to ensure a carrier doesn’t have an unsatisfactory safety rating, it doesn't address what could or should be done if a carrier has neither a safety fitness rating nor CSA scores. This is the case with the majority of U.S. trucking companies, according to several sources. Those carriers may find themselves at a disadvantage if shippers and third parties decide they can’t risk using unrated trucking companies.

The bill is supported by the Transportation Intermediaries Association as it would head off a patchwork of state-by-state “standards” that could evolve from local court decisions on what shippers, brokers and other third parties must do to ensure they are using a safe trucking company.

The most likely route to its passage would be as part of a surface transportation spending bill, with the current transportation funding expiring May 31.

OCEAN

WEST COAST PORT FALLOUT

While the labor dispute between the Pacific Maritime Association (“PMA”) and the International Longshore and Warehouse Union (“ILWU”) has almost come to an end, the fallout may remain for years.

First off, it’s not a done deal, as the agreement must still be ratified by the membership. The final rank-and-file membership tally, covering 20,000 dockworkers at 29 ports, will not be until May 22. While the agreement is likely to be ratified (the ILWU delegates voted 90% in favor), there are holdouts. In particular, a group that calls itself the Transport Workers Solidarity Committee wants to scuttle the deal. In a flyer referring to the agreement, the group claims that “Left unchecked, it will gut the ILWU’s coastwide power and bury the last militant union in the U.S.”

Second, the backlog of freight on the West Coast will take some time to clear out, although the situation seems to be resolving faster than many thought. It is reported that the northern ports could be back to normal by the end of April while it could take Los Angeles-Long Beach an additional month because of the huge vessel buildup in Southern California. The Marine Exchange of Southern California reported on March 24 that 19 container ships were at anchor and awaiting berths. Most of the 13 container terminals in the port complex were still heavily congested.

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These first two issues, labor uncertainty and the backlog of traffic, are related to the third and most enduring issue, that of the loss of business due to diverted traffic not coming back to the West Coast ports. The beneficiaries of this shift have been Gulf and East Coast ports, Canadian ports, along with the Panama and Suez Canals. These parties are all interested in keeping the additional traffic they have gained.

While East Coast ports were reporting double-digit increases in January, numbers published by the PMA showed that West Coast ports experienced a 29 percent drop in container volume, and the bleeding continued into February. Oakland, for example, reported a 37 percent decline in volume; Los Angeles, a decline of 10.2 percent; and Long Beach, a drop of 20.1 percent. East Coast ports, meanwhile, are starting to report large gains, with Charleston announcing an increase of 17.5 percent compared to February 2014.

The shift of traffic from the West Coast actually began in earnest after the disastrous ILWU-PMA contract dispute in 2002 which resulted in similar congestion and diversion. In response, many national retailers developed large import distribution centers along the East Coast, which are still in place. As a result, the West Coast’s share of total U.S. container trade has declined from 50.5 percent in 2000 to 47.2 percent in 2014. On a percentage basis, while the decline appears to be small, it translates into a loss of 1 million 20-foot laden containers in 2014.

In order to get traffic that would have gone to the West Coast to the East Coast (essentially from Asia) it has to move through either the Suez or Panama Canals, and they also want to hold on to the added revenue. Due to size limitations, the Suez Canal captured all of the increase in post-Panamax container ship traffic diverted to the East Coast from Asia resulting from West Coast diversion, however, the Panama Canal saw a big increase in the number of containers loaded aboard the Panamax ships on the 10 all-water services from Asia that use that route.

Panama, whose new, larger locks are scheduled to open in early 2016, has proposed a new toll structure to incentivize carriers to use that route and pull traffic from the Suez. The new structure rewards frequent container customers with premium prices once they reach a particular volume of 20-foot-equivalent units on ships transiting the canal.

A final issue involves concerns over future labor disputes and legislation being proposed as a resolution. With a contract that will again be up for renegotiation in only a few years, West Coast shippers are faced with the uncertain prospect of a repeat multi-month disruption to traffic. Republican Senator John Thune of South Dakota floated the idea of putting unionized port employees under the purview of the Railway Labor Act (“RLA”). The port labor-management negotiation process currently falls under the National Labor Relations Act (“NLRA”), which governs private-sector bargaining outside the railroad and airline industries.

The RLA differs from the NLRA in several ways with the RLA allowing of strikes over contract negotiations only after the act’s extensive requirements for negotiation and mediation procedures have been exhausted. In addition, the RLA allows the National Mediation Board, which has a near-perfect record of helping conclude cases without interruption to commerce, to get involved after one of the parties declares an impasse and one side invites the mediators in.

Under the NLRA as it currently governs port labor negotiations, there aren’t any protections against tit-for-tat blows between the union and waterfront employers, and both sides have to agree to invite federal mediators to the table.

While such a change might reduce uncertainty regarding future port negotiations, it is not likely to happen as there is extensive opposition. Both the International Longshoremen’s Association (“ILA”) and United States Maritime Alliance (“USMX”), representing Great Lakes, East and Gulf Coast ports, jointly said they “strongly oppose” any attempt to place the longshore industry’s collective bargaining under the RLA.

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Unlike repeated labor disruptions on the West Coast, the ILA hasn’t had a coastwide strike on the East and Gulf coasts since 1977 and according to the ILA and USMX, “the longshore and stevedoring industry has functioned effectively and successfully under the NLRA since its enactment in 1935.”

PARCEL EXPRESS

FEDEX SEEKS DISMISSAL OF DRUG & MONEY LAUNDERING CHARGES

We previously reported (TRANSDIGESTs 197 and 198) that FedEx had been indicted and was being sued by the Department of Justice on drug trafficking and money-laundering charges for delivering controlled substances and misbranded prescription drugs.

FedEx has now filed a motion to have the charges dismissed based upon provisions of federal law, the Controlled Substances Act (“CSA”) and the Food, Drug and Cosmetic Act (“FDCA”), that exempt common carriers that transport pharmaceutical shipments from regulatory and enforcement schemes.

According to FedEx’s motion:

In order to avoid obstructing common carriers’ vital function of facilitating commerce, Congress wisely exempted common carriers that transport pharmaceutical shipments from the regulatory and enforcement schemes established by the CSA and FDCA. The CSA provides that

[t]he following persons shall not be required to register and may lawfully possess any controlled substance or list I chemical under this title: . . . . (2) A common or contract carrier or warehouseman, or an employee thereof, whose possession of the controlled substance or list I chemical is in the usual course of his business or employment. 21 U.S.C. § 822(c).

Likewise, the FDCA provides that “carriers engaged in interstate commerce . . . .shall not be subject to the other provisions of this Act by reason of their receipt, carriage, holding or delivery of food, drugs, services, tobacco products, or cosmetics in the usual course of their business as carriers . . . .” 21 U.S.C. § 373(a).

FedEx goes on to point out that the common carrier exemptions are not new, having been introduced at least a hundred years ago with the early regulation of opiates in 1914. The Harrison Narcotics Tax Act made it unlawful for persons not registered under the provisions of the Act to possess opiates, but excepted “common carriers engaged in transporting such drugs.” The exemptions have been carried forward in subsequent legislation and are:

part of a broader scheme enshrined in the United States Code that implements the pragmatic rule that common carriers should be free to carry out their vital societal function without fear that they will be criminally liable for the contents of packages tendered for carriage, or for the failures of persons participating in the regulated industries to comply with the specific requirements imposed on those industries.

Facing similar allegations, United Parcel Service Inc. agreed in 2013 to forfeit $40 million in payments from illicit online pharmacies under a non-prosecution agreement with the U.S. Justice Department. Walgreen Co. and CVS Caremark Corp. have paid a total of more than $150 million in civil fines over claims they sold medications knowing they weren’t for legitimate medical use.

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FedEx and its alleged co-conspirators could face a fine of twice the gains from the illegal conduct, alleged to be at least $820 million. A revised indictment filed in August said FedEx, “knowingly and intentionally” delivered the illicit pharmaceuticals and planned to launder more than $630,000 in shipping payments from the illegal drug sales.

A hearing on FedEx’s motion to dismiss is expected to be held on May 13, 2015.

The case is U.S. v. FedEx Corp., 14-cr-00380, U.S. District Court, Northern District of California (San Francisco).

QUESTIONS & ANSWERS

By George Carl Pezold, Esq.

LIABILITY – INCORRECT BILL OF LADING

Question: When a bill of lading is incorrectly filled out and acknowledged by the freight company and the freight is subsequently lost who is liable?

Answer: From the limited information provided, the best answer I can give is as follows.

Under federal law, (the “Carmack Amendment”, 49 USC 14706) a motor carrier is liable for loss or damage while the goods are in its possession, and this is true whether or not there was a bill of lading issued.

FREIGHT CLAIMS – CONCEALED DAMAGE

Question: I had a carbon fiber hood delivered to my home with concealed damage. I have filed a claim and the carrier is willing to reimburse me for 1/3 of the invoice cost for the carbon fiber hood. Are they able to do this? Or is there a way I can get the full amount? The carbon fiber is damaged beyond repair and I have a document stating this from a carbon fiber specialist.

Answer: This is a recurring issue. First, I would comment about the carrier’s offer to pay 1/3 of the loss. Some carriers will offer a one-third settlement on concealed damage claims where it is impossible to determine where the loss occurred or what was the cause of the damage. The theory is that it could equally be the fault of the shipper, carrier or consignee.

There is no legal basis for this “one-third rule” and in fact it is contrary to the federal regulations at 49 CFR Part 370, which require carriers to investigate all claims, and to make reasonable efforts to determine the cause and/or place of the loss. If you can establish that the loss or damage occurred while the goods were in the possession of the carrier (and not before or after), the carrier should pay the full amount of the loss, i.e., the invoice price of the goods.

As for your claim, if you have not already done so, you should submit to the carrier a detailed description of the condition upon delivery, and a statement from the shipper as to the condition when the shipment was tendered to the carrier at origin, and make demand for full payment of your claim.

If they still refuse, unfortunately your remedy is to bring a lawsuit. Depending on the amount you may be able to do this through your local claims court. Note that you can sue the carrier locally and can get service of the summons and complaint on the carrier’s agent for service of process in your state. The name and address of the carrier’s process agent is available at the Licensing & Insurance section of the Federal Motor Carrier Safety Administration’s website at http://li-public.fmcsa.dot.gov/LIVIEW/pkg_menu.prc_menu.

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FREIGHT CHARGES – AUCTIONING ABANDONED PRODUCT

Question: We are a third party logistics company (“3PL”) with warehousing in New York. We have a customer for which we placed their product in a warehouse out of State (Utah). The customer appears to have gone out of business.

They do not answer their phone, a message comes on and now you can not leave a message because the mail box is full. The owner’s cell number does not work and he does not answer his home number.

This customer owes us for storage and shipping in excess of $11,000.00 and the storage is monthly at about $800.00 a month. We are now holding 129 pallets of the customer’s product upon which we would like to place a lien so we can auction/sell the product.

Please advise how we would go about putting a lien on the product out of state, and are there any complications to place a lien when it is not in our warehouse in NY. The product should have some worth to offset the bills open.

Do we have to auction the product and if it does not sell at the auction, then we can sell it ourselves?

Answer: If you are acting as a “warehouseman” you have a lien for warehouse storage charges. I think this would be true even if you subcontracted the storage to another warehouse.

On the other hand, as a 3PL (I assume you acted as a broker for the transportation), you are not a “carrier” and therefore you do not have a carrier’s lien for the freight charges.

As a practical matter, you might start with sending an “on hand” notice to the customer (certified mail) stating the amount due for freight and storage charges, the monthly storage charge, etc. and threatening that the goods will be sold at public auction, unless payment is made. You should state dates that give them enough time - at least 30 days. If they do not respond, send another notice.

As indicated above, you only have a lien for warehouse charges. Thus, the proper course of action if you want to collect both the freight charges and the warehouse charges is to bring suit against the customer, and get a judgment.

Procedures vary as to enforcement of a judgment lien. In New York, you usually need to get a warrant of execution, and give it to a sheriff or marshal, who will levy on the goods, sell them at public sale and remit the net proceeds to the judgment creditor.

Note that if you try to sell the goods for both the freight charges and the warehouse charges, you could be exposing your company to an action for conversion.

FREIGHT CLAIMS – MEASURE OF DAMAGES

Question: I understand that shippers are entitled to claim for their cost and profit when they have suffered a loss, but is that only in situations in which the sale was consummated prior to the cargo being shipped?

For example, shipper A sends a load of paper to consignee B. The load is damaged while in transit and shipper A files for cost and profit. However, consignee B only agreed to pay for that load after it arrived in the same condition in which it shipped, so technically no sale was ever completed.

Answer: As you have recognized, the usual measure of damages when goods have been sold to a customer is the invoice price (less salvage, etc. if any).

There are two contracts here: the contract of carriage between the shipper and the carrier, and a purchase agreement between the seller and the buyer of the goods.

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The agreement between the seller and the buyer normally contains provisions governing risk of loss (“FOB” terms that are governed by the Uniform Commercial Code).

However, regardless of which party assumes the risk of loss under the terms of the purchase agreement between the seller and the buyer, the measure of damages is still the same. The reason for this is that if the goods had been delivered in good order and condition the shipper/seller would have received payment from the consignee/buyer for the full purchase price.

FREIGHT CHARGES – CONTRACTING FOR TIME TO SUBMIT FREIGHT BILLS

Question: We are a freight broker and are considering adding to our current broker-carrier agreement that a carrier shall not submit invoices for services more than one hundred eighty days after the delivery date. Would this be legal and binding and is this the shortest period of time or could it be shorter?

Answer: It is “legal” and you can include it in your broker-carrier contract. The time period can be shorter, but you might get some objection from some carriers.

Note that there is a federal statutory 180-day time limit in 49 USC 13710 that applies to “billing disputes”, but it only applies when the carrier seeks to collect “charges in addition to those billed” that are contested by the payor, and requires the carrier to issue balance due bills within 180 days of receipt of the original bill. However, this does not apply to a contract provision that requires the carrier to submit original bills by a certain date, or they will be deemed waived.

FREIGHT CLAIMS – STATUTES OF LIMITATIONS

Question: What are the statute of limitations for filing claims for both international and domestic claims for shipments via ocean, air, and ground?

Answer: Here are the general rules for filing claims for both international and domestic claims for shipments via ocean, air, and ground:

U.S. domestic ground, rail, motor carriers and freight forwarders: The Carnack Amendment - 49 USC 14706 – establishes that the minimum time period for filing claims is 9 months, and a statute of limitations of 2 years from the date the carrier disallowed the claim to file a lawsuit. Need to have a contract (i.e., bill of lading or other contract) establishing these time periods.

International Air Freight: Under Montreal Convention of 1999 the minimum time period to file a claim with the carrier is 14 days from receipt of damaged goods or, if a delay or non-delivery, it is 21 days from the date cargo should have arrived. The statute of limitations to file a lawsuit is 2 years from the date the goods arrived or when carriage stopped.

Domestic Air Freight: The time to file a claim with the carrier may vary from 9 days to 9 months depending on the air waybill or other terms and conditions. The statute of limitations to file a lawsuit is generally 2 years from date of disallowance. Need to see the air waybill or contract to confirm.

Ocean Freight: The time limit to file a claim may be up to 1 year from the date of delivery or the date the freight was supposed to be delivered, BUT you need to check the bill of lading for shorter time limits on domestic water shipments. The time limit to file a lawsuit is 1 year from the date of delivery unless extended in writing by agreement with the ocean carrier (this is commonly done if the 1 year time limit is approaching).

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TAB

TRANSPORTATION ARBITRATION BOARD - HELP WANTED

The Transportation Arbitration Board (“TAB”) needs your help. Because of job changes and retirement, the list of TAB arbitrators is very short. Do you know anyone interested in serving as an arbitrator? Education points are awarded each time a person arbitrates a case. Arbitrator candidates should be certified by the Certified Claims Professional Accreditation Council (“CCPAC”). Also, please encourage your people to use TAB’s services.

Please contact TAB Administrator, Wally C. Dammann, CCP, at [email protected] or by phone at (212) 230-2966, or fax at (212) 319-7061, for an application and/or additional information.

TAB provides an alternative means to resolve disputes, so long as both parties agree to be bound by its decision. TAB is jointly sponsored by the Transportation & Logistics Council and the Transportation Loss Prevention and Security Association. TAB has an inexpensive arbitration program for loss & damage claims. The arbitrators are knowledgeable transportation professionals that are selected from carrier and shipper backgrounds.

CCPAC NEWS

CERTIFIED CLAIMS PROFESSIONAL ACCREDITATION COUNCIL

The Certified Claims Professional Accreditation Council, Inc. (“CCPAC”) held its 34th Annual Membership Meeting in conjunction with the Transportation & Logistics Council’s Annual Claim Conference in Orlando, FL on Monday, March 23, 2015. The membership present voted the following slate of officers and Board of Directors to serve the Council for 2015 – 2017:

Name CCPAC Position Company Affiliation

David Nordt, CCP President The Gilbert Company

Judy R. Johnson, CCP Vice President-Certifications Lowe’s Companies, Inc.

Deborah Baker, CCP Vice President-Membership UPS Freight, Inc.

Brenda Baker, CCP Secretary Landstar RMCS, Inc.

Jean Zimmerman, CCP Treasurer Retired

Dona Vidal, CCP Immediate Past President and Chair, Board of Directors

Transplace Texas, LP

Cindy Carey, CCP Board of Directors N Vision Global

Wally Dammann, CCP Board of Directors Mitsui Sumitomo Ins.

Teresa Jones, CCP Board of Directors FedEx Freight, Inc.

Roy Pietras, CCP Board of Directors FedEx Custom Critical

George Pezold, Esq. Of Counsel Pezold, Smith, Hirschmann & Selvaggio, LLC

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The Officers and the Board of Directors of CCPAC are pleased to announce and congratulate the newest Certified Claims Professionals (CCP’s) who sat for and successfully passed the CCP Exam given at the T&LC Annual Conference in Orlando, FL on March 25, 2015:

Name Company City, State

Denise M. Bloomer, CCP *** APL Limited Scottsdale, AZ

Justin T. Boyce, CCP Odyssey Logistics Charlotte, NC

Jordan L. Hackney, CCP BNSF Logistics Springdale, AR

Amy J. Herr, CCP Trinity Logistics Seaford, DE

Vanessa V. Reed, CCP APL Logistics Scottsdale, AZ

Rodney G. St, John, CCP Southern BDS, LLC Senoia, GA

Gary C. Trout, CCPi Trinity Logistics Seaford, DE

*** Indicates Highest Score

Established in 1981, CCPAC is a nonprofit organization comprised of shippers, manufacturers, freight forwarders, freight brokers, logistics companies, insurance companies, law firms and transportation carriers including air, ocean, truck and rail. CCPAC was founded on the premise to raise the professional standards of individuals who specialize in the administration and negotiation of cargo claims. Specifically, it seeks to give recognition to those who have acquired the necessary degree of experience, education, expertise and have successfully passed the CCP Certification Exam covering domestic and international cargo liability to warrant acknowledgment of their professional stature as a Certified Claims Professional (CCP).

The CCP Exam Schedule for 2015: Chicago, IL - April 21; Nationwide – Nov 7

Additional information can be obtained by contacting John O’Dell, Executive Director of the Certified Claims Professional Accreditation Council, Inc. (“CCPAC”), by phone: 904-322-0383 or email: [email protected] or visit http://www.ccpac.com/.

ADVERTISE IN THE TRANSDIGEST

TRANSDIGEST ADVERTISING

Full page and one-half page ads are now being accepted for the TRANSDIGEST. Reach a highly selective audience with information on your products and/or services at a reasonable cost. Rates are available for 3, 6 or 12 monthly issues, and include both print and electronic issues. For information contact Diane Smid or Stephen Beyer at (631) 549-8984.

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To Save Money with Online Freight Claim Management, please call 480-473-2453 or visithttp://www.transolutionsinc.com/moneytoday for more details.

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Freight Claims in Plain English, Fourth Ed. by George Carl Pezold and William J. Augello

"Freight Claims in Plain English" is now available again in this completely revised

and updated Fourth Edition. The text has been expanded to cover many new subjects, recent developments and court decisions affecting transportation in general and claims for loss and damage to cargo in particular, including developments in international ocean and air transportation, intermodal, and cross-border trade with Canada and Mexico.

This Fourth Edition contains extensively revised sections on all aspects of the law

and citations to hundreds of new court decisions. The page numbering has been simplified in order to facilitate finding answers to your questions. As with prior editions, a well organized and detailed table of contents, topical index, and table of authorities

are included, as well as extensive appendices containing valuable resource materials. Major topics include: • SURFACE CARRIER LIABILITY ● COMMON CARRIER LIABILITY

• BURDENS OF PROOF ● CARRIER DEFENSES TO LIABILITY

• LIMITATIONS OF LIABILITY ● DAMAGES

• TIME LIMITS (SURFACE MODES) ● SPECIFIC CLAIM PROBLEMS

• AIDS TO CLAIM RECOVERY ● WAREHOUSEMAN'S LIABILITY

• THE IMPACT OF DEREGULATION ● AIR CARRIER LIABILITY

• WATER CARRIER LIABILITY ● CANADIAN ANNOTATIONS

• INTERMODAL AND MULTIMODAL LIABILITY ● MEXICAN ANNOTATIONS

• BEGINNING AND ENDING OF CARRIER LIABILITY

• CONTRACTS OF CARRIAGE AND BILLS OF LADING

• CLAIMS PROCEDURES & ADMINISTRATION

• LIABILITY OF SURFACE FREIGHT FORWARDERS AND INTERMEDIARIES

www.transportlawtexts.com $285.00 [email protected]

Copyright © 2015 Transportation & Logistics Council, Inc. All rights reserved

$285.00

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The Transportation & Logistics Council, Inc. Phone: (631) 549-8984 120 Main Street, Huntington, NY 11743 Fax: (631) 549-8962

E-Mail: [email protected]

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APPLICATION FOR MEMBERSHIP Membership in the Council is open to anyone having a role in transportation, distribution or logistics. Membership categories include:

• Regular Member (shippers, brokers, third party logistics and their representatives); • Multiple Subscriber (non-voting additional representatives of a Regular Member firm); and • Associate Member (non-voting members – carriers and freight forwarders).

All members receive: • An email subscription to TRANSDIGEST (TLC's monthly newsletter) NOTE: There is an additional $50

annual fee to receive the TRANSDIGEST hard copy by First Class mail. • Reduced rates for most educational programs, texts and materials

New Members also receive: • A complimentary copy of "Shipping & Receiving in Plain English, A Best Practices Guide” • A complimentary copy of "Transportation Insurance in Plain English" • A complimentary copy of “Transportation & Logistics – Q&A in Plain English Complete Set of

Books 4, 5 and 6 on CD Disk” All fees are for 12 months of membership in TLC. If you are not presently interested in becoming a member, but would like to subscribe to the TRANSDIGEST, you can opt for a 1-Year/Non-member subscription to the newsletter by making the appropriate choice below. How did you hear about TLC?

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ALL NEW! Q & A IN PLAIN ENGLISH – BOOK X

NOW AVAILABLE IN PRINT OR ON CD!

Transportation & Logistics Q&A in Plain English – Book X

"Transportation & Logistics - Q&A in Plain English - Book X", by George Carl Pezold and Raymond A. Selvaggio, is the tenth in this series of the Transportation & Logistics Council's popular texts, and is a compilation of hundreds of the most recent questions submitted to the Council's “Q&A” forum and published in the TransDigest, What is unique about this compilation of questions and answers is that the questions reflect the real problems that actually come up every day, and that the people actually doing the work - shippers, carriers, brokers, intermediaries and even truck drivers - need help with. The answers range from simple advice to thorough explanations of the legal principles based on the authors' extensive experience in transportation law. Transportation & Logistics - Q&A in Plain English is excellent resource of advice and knowledge about everyday problems in transportation and logistics, and a great training tool for anyone starting out in the transportation and logistics profession. Between this new tenth edition and the previous ones, the authors have created a virtual encyclopedia of almost every conceivable question that can come up. You can't find this kind of information anywhere else. Available now in soft cover (105 pages, with Table of Contents and Topical Index), or on searchable CD (with instructions on "How to Use this CD"). Price: Members $50; Non-Members $60 plus shipping and handling. To order, log on to www.TLCouncil.org or call (631) 549-8984.

Order Form Fill out the information below, detach and send with your payment to: TLC, 120 Main St., Huntington, NY 11743

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The Transportation & Logistics Council, Inc. Phone: (631) 549-8984 120 Main Street, Huntington, NY 11743 Fax: (631) 549-8962

Order Form Fill out the information below, detach and send with your payment to: TLC, 120 Main St., Huntington, NY 11743

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EDUCATIONAL MATERIALS

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Shipping & Receiving in Plain English, A Best Practices Guide (2009), by George Carl Pezold

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Contracting for Transportation & Logistics Services (rev. 2001), by George Carl Pezold

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Transportation & Logistics - Q&A in Plain English – Book X (2014) by George Carl Pezold and Raymond Selvaggio

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Transportation & Logistics - Q&A in Plain English – Book IX (2012) by George Carl Pezold and Raymond Selvaggio

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Transportation & Logistics - Q&A in Plain English – Book IX (2012) on CD Disk by George Carl Pezold and Raymond Selvaggio

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Transportation & Logistics - Q&A in Plain English – Book VIII (2010) by George Carl Pezold and Raymond Selvaggio

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Transportation & Logistics - Q&A in Plain English – Book VII (2008) by George Carl Pezold and Raymond Selvaggio

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Transportation & Logistics - Q&A in Plain English – Book VII (2008) on CD Disk by George Carl Pezold and Raymond Selvaggio

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Transportation & Logistics - Q&A in Plain English – Complete set of Books IV, V and VI on CD Disk by George Carl Pezold and Raymond Selvaggio (2004 – 2007)

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Transportation Insurance in Plain English (1985), by William J. Augello Member 521 $13.00

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