CARRIERS
Individuals or businesses that are employed to
deliver people or property to an agreed destination.
The two main types of carriers are common
carriers and private carriers. A common carrier,
such as a railroad, airline, or business that offers
public transportation, customarily transports
property and individuals from one location to
another, thus offering its services for the hire of
the general population. A private carrier is
employed by special agreement only and reserves the right to accept or reject employment
as a carrier. Private carriers include chartered
cargo planes, ships, and buses and are
generally not subject to the same regulatory
restrictions as common carriers.
Common carriers engaged in interstate
transportation are regulated on the federal level
pursuant to the COMMERCE CLAUSE of the U.S.
Constitution, which provides that “[t]he Congress
shall have Power . . . [t]o regulate Commerce
. . . among the several States” (art. I, § 8, cl.
3). The government, through the INTERSTATE
COMMERCE ACT (49 U.S.C.A. § 10101 et seq.),
traditionally regulated charges for interstate
transportation by common carriers. Beginning
in the late 1970s and early 1980s, however,
deregulation of the trucking industry reduced
government involvement in establishing rates.
Unless a statute states otherwise, a common carrier
has broad authority to fix transportation
rates so long as the rates are reasonable. In determining
whether a rate is reasonable, a number
of elements are considered. The most essential is
the cost of transportation to the carrier, and
others include the character and value of the
items to be shipped; their weight, bulk, and ability
to be handled; and the mileage to be covered.
Though common carriers have a great deal of
freedom to set interstate rates, they must follow
procedures set forth by the INTERSTATE COMMERCE
COMMISSION, including filing rates with
the commission and publishing them.
A state possesses the authority to monitor
and control the management and functions of
common carriers operating within its borders
and may set the prices charged by carriers doing
business within the state.Most state laws require
common carriers to file rate schedules with a
state regulatory commission.
A common carrier is obligated to provide
the necessary facilities to transport the volume
of goods expected and to exercise the reasonable
care needed to transport the goods safely. In the
case of perishable goods, such as frozen or fresh
foods, the common carrier must provide refrigerated
or ventilated cars to ensure their safe
transportation. Likewise, when transporting
livestock, a common carrier is required to provide
adequate ventilation, bedding, and partitions.
The common carrier may be liable for loss
or injury to the livestock resulting from defects
in the cars it uses to transport the animals.
The carrier must follow any specific shipping
directives provided by the shipper and if
any instructions are ambiguous, the carrier must
hold the goods until the shipper provides clarification.
The shipper can select the route and
manner by which the goods can be transported,
but if no route is specified, the carrier is free to
choose any convenient route that does not result
in delay to the shipper.
Subject to some exceptions, a common carrier
is absolutely liable for loss or damage to the
goods it receives for shipment. A common carrier
is not liable for loss or injury to goods
brought about by an act of God, an event such as
an unforeseeable flood that could be neither
caused nor prevented through the exercise of
proper care on the part of the carrier. A carrier
could, however, be liable for an act of God if it is
guilty of NEGLIGENCE after the discovery of an
accident. For example, a fire started by lightning
would ordinarily be considered an act of God,
but if the carrier discovered it early and did
nothing to abate it, the carrier could still be
liable for failing to exercise due diligence.
In addition, a common carrier is not liable
for a loss of goods when the loss is caused by the
destruction or appropriation of the goods by the
military forces of a “public enemy” at war with
the domestic government. However, merely a
declaration of MARTIAL LAW will not relieve the
common carrier of liability, and groups who are
not functioning as military forces against the
government are not considered public enemies.
Thus, a common carrier remains liable for a loss
of goods resulting from the acts of a mob, rioters,
and strikers, even if the carrier was not negligent
and took all possible precautions to
prevent the loss.
A carrier will not be held liable for injuries
to goods that occur as a result of the shipper’s
negligence or misconduct. Furthermore, when
the nature or value of the goods to be shipped is
fraudulently concealed or misrepresented by the
shipper, whether to obtain a lower shipping rate
or for any other purpose, the carrier is not liable
for any losses incurred. FRAUD can be established
by the shipper’s silence regarding the
value of the goods or by untruthful statements
made by the shipper. If the shipper failed to
notify the carrier about the nature of the contents
of a particular shipment, the carrier is
ordinarily exempt from liability if a loss occurs,
even if the loss is due to negligence on the part
of the carrier.
A common carrier can restrict its liability for
damages by clear and unambiguous terms contained in its contract with the shipper. Questions
concerning the validity of such agreements
are resolved by state law when shipments within
a state are involved and federal law is applied to
contractual disputes concerning interstate shipments.
A contractual provision releasing the carrier
from liability must not contravene public
policy and a carrier that departs from the usual
method or route for shipment may not rely
upon any limitations on liability contained in
the contract.
Some common carriers, like public buses
and taxis, transport people from one place to
another. A common carrier of passengers, also
known as a public carrier, transports for hire all
persons (within certain limitations) as a regular
business and represents itself as being engaged
in such a business. A public carrier can deny carriage
to people who refuse to comply with its
reasonable regulations, who are likely to present
danger to other passengers, or who in some way
interfere with the safe carriage of passengers.
Common carriers of passengers are subject
to extensive regulation by state and federal governments.
Many states, for example, require by
law that common carriers be inspected annually
in order to protect people from the hazards of
riding in vehicles that are poorly maintained. A
common carrier that transports passengers may
also make its own rules and regulations provided
they are reasonable and will protect the
interests of both the carrier and the passengers.
A carrier of passengers is liable for injuries
suffered by passengers as a result of its negligence
but is not an insurer of its passengers’
safety. Instead, a common carrier is required to
act with the utmost care, skill, and diligence to
protect the safety of its passengers as may be
mandated by the type of transportation provided
and the risk of danger inherent in it. Conversely,
a private carrier of passengers must act
with only reasonable care and diligence unless
the contract for carriage provides otherwise,
though some jurisdictions hold a private carrier
to the same duty as that applied to common
carriers.
Determining whether a carrier is a common
carrier, and thus subject to a higher standard of
care, was the subject of some litigation in the
late 1990s. For example, a California federal district
court held in early 1995 that Disneyland, as
the operator of an amusement park ride, qualified
as a common carrier and thus should be
held to a duty of utmost care and diligence for
the safety of its passengers even though the chief
purpose of the ride was to entertain and not
transport travelers (Neubauer v. Disneyland, 875
F. Supp. 672 [C.D. Cal. 1995]). As a result, Disneyland
was held liable for injuries the plaintiffs
suffered when their boat on an amusement ride
was rammed from behind by another boat. The
court looked to the broad definition of a common
carrier contained in state law and held that
any narrowing of the term carrier should take
place in the legislature and not in the court.
Some courts have considered whether the
age of the passenger affects the duty owed by a
common carrier. The Iowa Supreme Court, for
example, in 1995 considered whether a school
bus owed an additional duty to a child injured as
he was struck by a car after safely alighting the
bus (Burton ex rel. Hawkeye Bank of Des Moines
v. Des Moines Metropolitan Transit, 530 N.W.2d
696 [Iowa]). The court declined to extend the
duty owed by drivers of school buses to ensure
the safety of children alighting the vehicles,
holding that the bus company had no duty
beyond that owed by a common carrier to protect
child passengers from dangers that may reasonably
and naturally be anticipated. According
to the court, once a passenger alights safely, the
passenger (even when he or she is a child) is better
able to guard against the danger of moving
vehicles; thus, public policy did not support
extending a carrier’s duty of care to include
ensuring that the passenger safely crosses the
street.
Unless the carrier is negligent, it is not
responsible to a passenger for injuries due to
natural causes and due to causes beyond the carrier’s
control. A common carrier of passengers
cannot ordinarily release itself from liability for
injuries to a passenger caused by either willful,
wrongful conduct or negligence on the part of
the carrier. In some jurisdictions, though, a carrier
can limit its liability for negligence in
exchange for providing a reduced fare or free
pass. However, such limitations on liability may
be invalid if the reduced fare is not made
optional and if passengers are not permitted to
buy tickets that provide that the carrier’s liability
is not limited.
Like common carriers that transport goods,
carriers of passengers have also been subject to
deregulation by the federal government. The
Airline Deregulation Act of 1978 (49 U.S.C.A. §
334, 1301 et seq.) gave airlines almost complete
discretion over rates, routes, and services offered. Prior to passage of the act, the Civil
AERONAUTICS Board, a federal agency, exercised
exclusive control over pricing in the airline
industry.
Subsequent federal legislation also affected
the responsibilities of carriers to their employees
and passengers. In 1990 Congress enacted the
Americans with Disabilities Act (ADA) (42
U.S.C.A. § 12201 et seq.), which prohibits
employment discrimination against a qualified
individual with a disability. The ADA further
prohibits a carrier covered by the act from discriminating
against a qualified individual with a
disability because of that disability in regard to
job application procedures, hiring, advancement,
discharge, compensation, training, and
other terms and conditions of employment. The
ADA then sets forth in some detail the procedures
that the carrier must follow in screening,
interviewing, and hiring employees to ensure
that individuals with disabilities are not subject
to discrimination. In particular, the ADA
requires that a carrier provide “reasonable
accommodation” for the physical or mental limitations
of a qualified applicant or employee
with a disability unless the carrier can show that
the accommodation would impose an “undue
hardship” on business. According to the EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, a
reasonable accommodation is a modification or
adjustment to a job, practice, or work environment
that makes it possible for an individual
with a disability to enjoy an equal employment
opportunity. An undue hardship has been
defined as an action that is unduly costly, extensive,
substantial, or disruptive or that would fundamentally
alter the nature or operation of the
carrier’s business.
The ADA has also affected the scope of a carrier’s
responsibility to its passengers. Under the
ADA, carriers of passengers such as buses and
rail systems must ensure that their facilities are
readily accessible to and usable by individuals
with disabilities by providing lifts, ramps, or
other mechanisms. Airlines, which are not
specifically covered by the ADA, are prohibited
from discriminating against disabled individuals
under the Air Carrier Access Act (ACAA), 49
U.S.C.A. § 1301 note, 1374, 1374 note, which
was enacted in 1986. The ACAA provides that
“[n]o air carrier may discriminate against any …
handicapped individual, by reason of such
handicap, in the provision of air transportation”
(42 U.S.C.A. § 1374). Like the ADA, it further
provides that air carriers must make “reasonable
accommodations” for disabled individuals traveling
by air.
FURTHER READINGS
Astle, W. E. 1980. Shipping and the Law. London: Fairplay
Publications.
Lebedoff, David. 1997. Cleaning Up: The Story behind the
Biggest Legal Bonanza of Our Time. New York: Free
Press.
Hegedus, L.E. 1992. “Shinault v. American Airlines, Inc.:
Compensatory and Emotional Distress Damages under
the Air Carrier Access Act.” Tulane Law Review 66.
Murphy, Betty Southard. 1993. “The Americans with Disabilities
Act: How It Affects the Airline and Railroad
Industries.” American Law Institute (April).
CROSS-REFERENCES
Airlines; Diligence; Disability Discrimination; Negligence;
Railroad; Shipping Law.
