Tuesday, June 02, 2020

Scope of the Load Securement Regulations in Part 393 of the Code of Federal Regulations

By Zachary Faulkner


Federal motor carriers may be subject to gross negligence when damages are caused by improper load securement. Further, it is important to determine if load securement liability applies in a particular case because it increases the likelihood of punitive damages.2

The load securement regulations in CFR Section 393 Subpart I govern federal motor carriers’ responsibilities to properly secure their cargo when travelling on public highways.3 However, it is not always easy to determine when CFR Section 393 Subpart I applies, and would likely be determined on a case-by-case basis.

 

LEGAL FRAMEWORK

Determining how to approach load securement issues requires an understanding of the essential regulations and how they work together. Below is a summary of each regulation:

 

A. CFR 393.100 and General Load Securement

This regulation is the general overview of the load securement regulations set forth in CFR 393 Subpart I. This regulation broadly addresses the scope of the cargo securement regulations. It states that “the rules in this subpart are applicable to trucks, truck tractors, semitrailers, full trailers, and pole trailers.” It further states that these vehicles must be equipped with the proper load securement devices (as indicated in the specific regulations that follow) to prevent cargo loss during transport.4

B. CFR Section 393.106 – Cargo Subject to Regulations

Similar to Section 393.100, Section 393.106 loosely refines the scope of the applicability of the load-secure regulations for cargo types. It distinguishes what cargo is subject to the regulations by stating, “the rules in this section are applicable to the transportation of all types of cargo, except commodities in bulk that lack structure or fixed shape (e.g., liquids, gases, grain, liquid concrete, sand, gravel, aggregates) and are transported in a tank, hopper, box, or similar device that forms part of the structure of a commercial motor vehicle.”5  Subsection (b) also sets forth the general rule: “Cargo must be firmly immobilized or secured on or within a vehicle by structures of adequate strength, dunnage or dunnage bags, shoring bars, tiedowns or a combination of these.”6

C. CFR Sections 393.116—136 – Defining Cargo Types

Cargo is not expressly defined by the regulations, but the regulations are not silent on what is considered cargo. Sections 393.116 through 393.136 explicitly list various types of cargo by the structural nature of the cargo. These regulations set forth guidelines for securing logs, dressed lumber or similar building products, metal coils, paper rolls, concrete pipes, intermodal containers, motor vehicles, heavy equipment and machinery, crushed vehicles, hook lift containers, and large boulders.7  The regulations address these commodities specifically as they are likely transported frequently, and it is preferred to have specific guidelines rather than vague and ambiguous standards leading to many interpretations of proper load securement in the shape of caselaw.

Interpreting these regulations conjunctively, it is clear that CFR 393.100 and 393.106 are the general regulations that apply when one of the specific rules set forth by CFR 393.116—136 does not apply. As such, there still remains room for interpretation on what constitutes “cargo” under the CFR 393.100 and 393.106.

“Cargo” is not defined anywhere in the CFRs. Black’s Law Dictionary defines “cargo” as “[T]he lading or freight of a ship; the goods, merchandise, or whatever is conveyed in a ship or other merchant vessel,” but this definition is still ambiguous and can still be interpreted broadly.8  Therefore, lawyers must rely on the language of the regulations themselves to determine what constitutes “cargo,” thus activating the regulations.

 

Interpretation of the Regulations

Interpretation of CFR 393 Subpart I suggests that load securement liability will not likely apply to a tractor-trailer dump truck hauling scrap metal for example. Tractor-trailers hauling scrap metal, or any other disposable related item, are not subject to the liability under CFR Section 393 as scrap metal would likely not be categorized as cargo. As discussed above, Sections 393.116—393.136 lists various types of cargo by the structural nature of the cargo, and under the principle of unius est exclusion alterius (a principle in statutory construction: when one or more things of a class are expressly mentioned others of the same class are excluded), scrap metal should be excluded as it is not similar to any of these commodities. Additionally, scrap metal, unlike the various commodities referenced by the regulations, has no identifiable form or shape. Scrap metal, by its very nature, is too difficult to tie down or properly secure, which was also addressed by CFR 106, which clearly excludes “commodities in bulk that lack structure or fixed shape.”9  Therefore, a motor carrier that negligently drops scrap metal on a public roadway would not be subject to gross negligence liability under these regulations.

 

Conclusion

As the caselaw is sparse on the subject, lawyers must be cognizant when addressing a load securement case. A lawyer must be prepared to analogize or distinguish the case, depending on the party represented and the types of cargo set forth by CFR Section 393 Subpart I, to persuade the judge on the applicability of the regulation. Understanding this may be the difference between punitive damages and substantial monetary gain/losses for the client.

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  1. See U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012).
  2. Id.
  3. See generally, 49 C.F.R. § 393 Subpart I.
  4. 49 C.F.R. § 393.100.
  5. 49 C.F.R. § 393.106.
  6. Id
  7. 49 C.F.R. § 393.116-.136.
  8. Cargo Definition, Black's Law Dictionary (20th ed. 2015), available at  https://thelawdictionary.org/cargo/.
  9. 49 C.F.R. § 393.106.

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