The newsletter of the ISBA’s Section on Energy, Utilities, Telecommunications & Transportation Law
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Newsletter articles from 2004
Defendant status issue stays Carmack preemption
Judge David Coar of the U.S. District Court for the Northern District of Illinois has denied a Rule 12(b)6 Motion to Dismiss based on Carmack Amendment preemption under 49 U.S.C.
District court finds actual carrier notice of cargo loss excuses late shipper claim
In Mitsui Sumitomo Insurance Co. Ltd., et al., v. Watkins Motor Lines, Inc., Case No. 03-2741 (10/8/04), U.S. District Court Judge Samuel Der-Yeghiayan granted the plaintiffs' summary judgment motion in Carmack Amendment 49 U.S.C. 14706 cargo loss and damage litigation and denied without prejudice defendant's partial motion for summary judgment to limit its damages.
District court sustains Carmack Amendment federal jurisdiction on international shipment
In Capital Converting Equipment, Inc. v. LEP Transports, Inc., F.2d 391 (7th Cir. 1992), the U.S. Court of Appeals for the 7th Circuit held that the Carmack Amendment, 49 U.S.C. §11706, provides no cargo damage remedy against rail carriers on international shipments originating at points in foreign countries and moving to U.S. destinations on through bills of lading unless some domestic part of the shipments were covered under separate bills of lading issued by domestic rail or motor carriers.
Divided 4th District Appellate Court sustains non-solicitation clause
In a 2-1 decision, the Illinois Appellate Court for the 4th District has found that a non-solicitation clause in a broker-carrier contract is enforceable against the motor carrier on business that the motor carrier had secured on its own without any broker referral in Berryman Transfer & Storage Company, Inc. v. New Prime, Inc., Case No. 4-03-0345, decided 2/28/2004.
Hours of service battles continue
The new Federal Motor Carrier Safety Administration ("FMCSA") hours of service rules for truck drivers went into effect on January 4, 2004.
Illinois Appellate Court rejects carrier liability limits in cargo litigation
The Illinois Appellate Court for the First District has held that the cargo loss and damage liability limits published in a motor carrier's tariff were ineffective to limit the carrier's liability to a shipper in cargo loss and damage litigation unless the shipper had actual notice of the liability limitation and assented to it prior to the shipment in Converting Systems, Inc. v. Hot-Line Freight Systems, Inc., Case No. 1-02-3880 (decided November 26, 2003) Plaintiff CSI shipped machinery from Addison, IL to Schwanno, WI in 2001 via Hot-Line Freight.
New legislation concerning utilities and rights-of-way
Generally speaking, a public utility has the right to install underground utilities in a statutory dedicated road. Such underground installations are regarded as being within the easement for highway purposes, in favor of the public.
Public utility condemnation review
Members of the Section are likely aware that the Illinois Commerce Commission ("ICC") exercises broad authority under the Illinois Public Utilities Act ("PUA") (220 ILCS 5/1-101 et. seg.) over the rates and activities of investor-owned public utilities.
Union decertification held not to trigger complete ERISA withdrawal liability
In Central States, Southeast and Southwest Area Pension Fund v. Schilli Corporation, Case No. 03-8880 (11/15/04), Judge John Darrah of the U.S. District Court for the Northern District of Illinois rejected Central States' assertion that an employee vote to decertify a union created a complete ERISA withdrawal liability for their employer.