Are you working your CSA numbers?

Vicarious liability has shippers, brokers worrying

By Henry E. Seaton
November 2010
Reprinted /

Q: We are a motor carrier and operate about three dozen over-the-road trucks, including company equipment and owner-operators. We are heavily dependent on brokers for backhaul freight to service our hometown shipper. We recently have received new contracts in which brokers state they will not use us when Comprehensive Safety Analysis 2010 goes live if we are “marginal” or “deficient” in any of the reported six BASICs areas. We never have had safety problems before or have been audited. We just got a look at our CSA scores, and they show we are “deficient” in three areas. How can this be, and what can we do?

A: You and most of the small carriers that comprise more than 95 percent of the licensed, authorized for-hire carriers have been figuratively “asleep at the wheel.” Unless the Federal Motor Carrier Safety Administration reconsiders or is blocked judicially, the agency intends to publish CSA 2010 data for all to see in late November or early December. Although FMCSA is, I believe, charged by Congress with the sole job of determining safety fitness, the agency proposes to publish all its unscrubbed data concerning every motor carrier. It appears to be inviting shippers and other “stakeholders” to use the data and the pejorative characterization of carriers as “marginal” or “deficient” in deciding which carriers to use.

Shippers shouldn’t have to second-guess FMCSA.

Many shippers and brokers are frightened of vicarious liability because of a couple of bad decisions and think that if they use a carrier labeled “marginal” or “deficient,” they will pick up a huge tab for negligent entrustment if, God forbid, the carrier so labeled is involved in a fatal crash.

The practice you report of prospectively barring carriers labeled as “deficient” or “marginal” in contracts is, I fear, widespread. FMCSA might be able to work with the CSA methodology in order to establish progressive intervention, but the methodology is not hard science or accurate math that can or should be used by any shipper to judge a carrier’s safety. The data used is based on warnings and citations, not convictions, and presents some real due process issues. For example, lumped into the same peer groups are carriers that use paper logs that are twice as likely to have “fatigued driving” points – based solely on paperwork violations – as carriers in their same peer group who do not log or use electronic onboard recorders.

Vicarious liability should not be an issue in shipper selection of freight haulers any more than it is an issue for the consumer and any other regulated industry where the government exercises preemptive licensing and credentialing authority. This point has been made to the agency, and hopefully the issue will be addressed by a postponement of public release or other appropriate restriction in the use of the data. If not, judicial or legislative action will be necessary to stop the unintended consequences on the willingness of shippers and brokers to use small carriers.

So what can you do for now? You can focus more heavily on safety or consider using EOBRs if you are “deficient” in the fatigue BASIC. EOBRs will improve your scores over time even if they actually might not reduce fatigue. You can check every light and brake more frequently if you have high maintenance scores. You could put governors on trucks if you have speeding violations. Over time, your high scores gradually will improve. If you do not lose too much business in the meantime, perhaps there will be more freight for you to haul.

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