The subject matters that we address on a daily basis:
Transportation Contract Litigation
Carriers, shippers, consignees, and third parties are by necessity constantly negotiating and entering into transportation contracts. The risks and liabilities arising from such contracts typically never surface until the parties are in litigation.
Taking freight transportation contracts into court and effectively arguing a client’s position requires an in depth working knowledge of the transportation industry, a keen appreciation for how the law has evolved, and substantial experience with litigating such issues. Neither the size of the law firm nor the general litigation experiences of the attorney involved provide any assurance of success in transportation contract cases. Much of the law is counter intuitive and difficult to understand without knowledge of its historical background. Attorneys unfamiliar with the law have a steep and expensive learning curve.
Representing clients in transportation contract disputes is not something that we do on occasion at Keenan Cohen & Howard, it’s what we’ve done for years, and it’s what we do every single day.
REPRESENTATIVE CASE:
CSX Transportation v. Meserole Street Recycling Corp., et al., 618 F.Supp.2d 753 (W.D. Mich. 2009). The U.S. District Court entered a lengthy Opinion awarding summary judgment in favor of our client and against the defendants on multiple breach of contract counts. The court determined that the defendants were liable for $2 million in damages for breaching several provisions of a rail transportation contract.
Derailment Expenditure Recovery
When it becomes reasonably apparent that a derailment has been caused by the negligence of parties other than the railroad, we are typically engaged by our railroad clients to pursue a claim against that negligent party for the rather substantial expenses incurred as a result of the derailment. We routinely deal with issues of improperly loaded freight, freight that was not adequately braced or balanced, as well as derailments caused by grade crossing road traffic.
We utilize some of the best expert witnesses in load engineering and rail technology to assist us with causation and/or loading issues, and we are familiar with the wide range of sources for information pertinent to a derailment in the U.S. In pursuing derailment recoveries for rail carriers, it has become increasingly important for counsel to have a firm working knowledge of how to read and interpret tariffs, bills of lading, federal regulations, AAR rules, and transportation contracts.
Our firm is experienced and uniquely qualified to pursue these types of claims on behalf of rail carriers, a fact which our railroad clients have increasingly come to know and rely upon.
Liability for Freight Destroyed or Damaged in Transit
A carrier’s liability for freight that is lost, damaged, or destroyed while being transported is almost always governed by a federal statute known as the Carmack Amendment. The law is complex and requires a thorough understanding of how Carmack has changed over the past century, as well as how it presently impacts different modes of transportation in different ways.
You will find that our attorneys are the successful attorneys of record in a rather large number of precedential rulings in Carmack Amendment cases by numerous U.S. Courts of Appeals and U.S. District Courts. Simply stated, with respect to issues of freight loss or damage liability, Keenan Cohen & Howard is one of the most successful and noted law firms in the country. It should be of no surprise that we are engaged to represent the interests of some of the largest rail and motor carriers whenever a substantial freight claim is contested and taken to court. This area of the law demands that counsel have extensive experience, and our record of success speaks for itself.
REPRESENTATIVE CASES:
Hansa Meyer Transport GMBH v. Norfolk Southern Railway Co., 2008 U.S. Dist. LEXIS 4319, No. 8:06-cv-00924 (D.S.C., May 20, 2008). After lengthy and contentious discovery and a full trial, the U.S. District Court ruled that our client had properly limited its liability for damage to freight under the Carmack Amendment, and awarded the plaintiff no more than $100,000 in damages despite proving a loss of $1,558,000.
Central Transport Services v. Osram Sylvania, Inc. and Global Advantage Distribution, U.S.D.C., M.D. Fla., No. 2:06-vb-401-FTM-29SPC (February 1, 2008). After a very lengthy jury trial of plaintiffs’ claims for the destruction of over $3 million in light bulbs while in transit, the jury found for our client on all counts and entered a defense verdict. The jury found that our client had proven that the freight had not been properly loaded for interstate transportation
Recovery of Freight and Tariff Charges
Necessary for the survival of any carrier or logistics company is the need to be compensated for transportation services. Because claims arising under interstate transportation contracts can be subject to multiple tariffs, special venue requirements, unusual time limitation statutes, and other related issues, the litigation of such claims is best undertaken by counsel experienced with both the law and the industry. Knowing how and when tariffs apply, especially within the context of rail transportation, can literally mean millions of dollars for the client. This is a proven advantage that we continuously provide to our clients.
REPRESENTATIVE CASE:
Norfolk Southern Railway Company v. Basell USA, Inc., 512 F.3d 86 (3d Cir. 2008). In vacating the limited recovery afforded by the judgment of the district court, the U.S. Court of Appeals held that our client had introduced evidence probative of a material breach of a transportation contract with discounted rates. Upon remand, the district court ruled that the contract had been voided by the material breach of the defendant, thereby allowing our client to re-rate the freight moves and collect $2,586,031 in tariff charges.
Transportation Related Fraud and Bankruptcy
The transportation industry is unfortunately a frequent target and victim of commercial fraud perpetrated by a few corrupt shippers, consignees, customers, vendors, and criminals. Our attorneys have considerable experience investigating how the fraud was carried out, and tracing assets to find out where the perpetrator eventually placed the funds at issue.
Bankruptcy petitions are frequently filed by perpetrators as a procedural impediment intended to discourage further pursuit by creditors; however, fraudulent transfers are given special treatment by the U.S. Bankruptcy Code, and such strategic impediments – if dealt with correctly – become merely speed bumps in the pursuit of assets.
Our experience in pursuing frauds has lead us to discovery hidden assets in the most unusual places, from a ranch in Texas, to an assortment of trust accounts, to a fleet of specially equipped tankers. Such discoveries ultimately lead to recoveries for our clients.
Carrier-Vendor Contract Disputes
Whether it is the purchase of rail cars or equipment, the purchase of security services, or the purchase of ramp loading services, contracts between carriers and vendors are often breached leaving the carrier with substantial monetary losses. We have an established track record of successfully pursuing litigation against such vendors, and where appropriate, applying creative and innovative approaches to overcoming time limitations and other defenses.
Our clients realize that our familiarity with commercial freight transportation operations enhances our ability to be cost effective in such litigation, resulting in a recovery that is typically not dwarfed by the expense of litigation.
REPRESENTATIVE CASE:
Norfolk Southern Ry. v. Trinity Indus., Inc., 2009 U.S. Dist. LEXIS 27466, No. 3-07-CV-1905-F (N.D. Tex., March 31, 2009). The U.S. District Court held that our client was entitled to pursue breach of warranty claims arising from the sale of rail cars, notwithstanding the expiration of the statute of limitations, based upon principles of estoppel. After ruling in favor of our client, the Court’s Opinion commented that the briefing and oral presentation by counsel were of “the highest order.”
Demurrage and Detention Recovery
The use and possession of rail cars and containers after delivery, and the resulting accrual of demurrage and detention charges, has been the subject of recent conflicting rulings by different U.S. Courts of Appeals. Our firm has served as counsel of record for the rail carriers in virtually every recently reported court decision on demurrage issues handed down by U.S. Circuit Courts of Appeals and U.S. District Courts, and we are currently involved with the leading cases addressing demurrage liability.
Our knowledge of the tariffs and experience with this area of the law is extensive and unequalled by any other firm in the country. Accordingly, our record of success and recovery speaks for itself.
REPRESENTATIVE CASE:
CSX Transportation v. Novolog Bucks County, 502 F.3d 247 (3d Cir. 2007), cert. den., 128 S.Ct. 1240 (2008). The U.S. Court of Appeals vacated the judgment entered by the U.S. District Court, and ruled in favor of our client holding that rail carriers can recover demurrage form consignees notwithstanding the absence of a formal contract with the consignee.
Motor Carrier Sales Agency Litigation
Carriers and shippers are increasingly brought together for business purposes by independent sales agents. Because successful agents can dramatically impact the revenue of carriers, carriers compete with each other to recruit and solicit agents to enter into exclusive agency contracts. It is often a fine line which separates recruitment practices which comply with the rules of the game, and interference with contractual relations. When these issues heighten to the point of litigation, our experience with the industry and agency related issues provides our client with a key competitive advantage going into court.
REPRESENTATIVE CASE:
ATF Trucking, L.L.C. v. Quick Freight, Inc., et al., 2008 U.S. Dist. LEXIS 57354, No. 06-4627 (E.D. Pa., December 23, 2008). After a lengthy and contentious trial, the U.S. District Court ruled that our client complied with the “rules of the game” as they apply to the freight carrier business, and did not interfere with any agency contract in recruiting and hiring a successful agent away from a competing carrier.
Rail, Motor, and Broker Contracts
If you are engaged in the commercial transportation of freight, you are by necessity engaging in an endless series of contracts with shippers, carriers, consignees, and logistics providers. Those transportation related businesses with foresight appreciate the very real commercial value of utilizing well drafted contracts prepared by counsel having experience with transportation related issues. Even the repeated use of well prepared form contracts can afford protection and savings to a business that can be valued in the millions of dollars.
Our most prudent clients take advantage of our experience and, especially with respect to brokers and logistics companies, have us prepare new contracts or revise existing contracts. The best time to have your form contracts reviewed and revised is, of course, before the unexpected occurs, not afterwards.
Bridge, Switch, and Signal Damage Recovery
The negligence of unrelated parties often results in the destruction of, or substantial damage to, railroad bridges, switches, and signals. While the cases are often governed by the principles of common law negligence, bridge strikes can be governed by maritime law, and proof of damage usually requires a knowledge of rail operations. Keenan Cohen & Howard has considerable experience in pursuing these and other similar claims for its rail carrier clients, and a proven track record of successful recoveries.
