Shippers’ Law: ‘Pilot car’ not a Carmack carrier

   Undoubtedly, you’ve seen trucks carrying oversize loads accompanied by “pilot” or “escort” cars decked out with flags and caution signs. The lead car generally has a pole that is several inches higher than the load. If the pole strikes an overpass, wire or other obstruction, then the driver can radio the truck driver to pull over and figure out an alternative route.
   Several recent court decisions have involved pilot cars.
   One dealt with a shipment from Pal-Con Ltd., a company that manufactures, repairs and services large regenerators for gas turbine engines. (In re Wheeler. 5th Cir. 14-10615. June 22, 2015.)
   Pal-Con contracted with Friend’s Express to ship two sections of a regenerator, and Friend’s subcontracted Brantley Transportation. Brantley, in turn, hired Bert Wheeler to pilot one section through Ohio.
   While Wheeler was guiding Brantley’s driver Jacob Maples through Ohio, Maples missed the correct exit and began traveling north on a highway when he should have been traveling south.
   “Maples radioed to Wheeler who then met Maples on the north highway on the side of the road,” the court said, but “Instead of exiting the north highway immediately, scouting for a new route, or consulting with the permit office or state police on a route, Wheeler continued with Maples on the north highway for 20 miles. At some point, Wheeler’s height-pole struck an overpass.
   “At that point, Wheeler radioed to Maples who was about a half-mile behind him to stop. Maples said that he could not stop in time due to heavy traffic and the weight of the load. Maples was afraid that if he completely locked the brakes under those circumstances he would cause an accident. Therefore, Maples, instead, struck the overpass and irreparably damaged the left-side regenerator module.”
   Pal-Con filed suit against Wheeler and others, and Wheeler was found 35 percent responsible for Pal-Con’s damages.
   On appeal, the 5th Circuit held Wheeler owed Pal-Con a duty independent of his subcontract with Brantley to protect the regenerator from damage.
   It concluded “if a pilot car driver acts negligently, the risk of damage to the shipment is highly foreseeable. Foreseeability is particularly clear when, as in this case, state law requires the shipment to remain on a preapproved route and to be led by a pilot car with a height sensing device, for the sole purpose of avoiding collisions with overhead obstructions.”
   The 5th Circuit said “Texas courts would likely find that a pilot car driver owes a common law duty to the owner of the shipment.”
   Wheeler contended that the recognition of a common law duty would create an end-run around the Carmack Amendment. He pointed to a 5th Circuit decision that said Carmack “provides a general rule that motor carriers transporting property are liable to shippers ‘for the actual loss or injury to the property,’ but allows an exception under which… the liability of the carrier for such property is limited to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable.”
   Wheeler contended he was a carrier, but the 5th Circuit found “because a pilot car does not directly handle the shipment or exercise significant control over the shipment, we conclude that a pilot car does not constitute a carrier under the Carmack Amendment.”
   A second court case involving pilot cars grew out of a mishap while transporting a piece of refinery equipment, known as a purification skid, to Air Liquide Mexico. The 63-ton skid was valued at $1 million and was over 60-feet long, 15-feet high, and more than 15-feet wide.
   Plaintiffs contracted with Hansa Meyer Global Transport USA to ship the purification skid from India to Mexico via the Port of Houston.
   Hansa Meyer hired Contractors Cargo Co. to truck the skid from Houston to Mexico.
   Contractors Cargo constructed a 140-feet-long, custom-made low-boy trailer, and acting as a broker, contracted with defendant Talleres Willie to transport the skid to Mexico.
   On March 4, 2013, a train hit the trailer as it was stalled across the tracks at a railroad crossing in Magnolia, Texas, severely damaging the skid.
   Plaintiffs brought a negligence suit in state court against Contractors Cargo, Talleres Willie, and seven other defendants involved in the move, including pilot car companies.
   Contractors Cargo removed the case to federal court, and a motion by the plaintiffs to remand it back to state court was denied in 2014.
   The plaintiffs allege the defendants improperly attempted to cross the railroad crossing at an angle from the left side of the street, and then abandoned the trailer when it became stuck. They further allege the accident was the result of a host of careless acts by the defendants, including most significantly their failure to inform the railroad of their crossing.
   The court on Feb. 18, 2015, held the plaintiffs’ state law claims were completely preempted by the Carmack Amendment to the Interstate Commerce Act.
   But in light of the Wheeler decision it reversed (Air Liquide Mexico S. de R.L. et al. v. Talleres Willie, Inc. et al. No. CV-H-14-211. S.D. Texas. Dec. 21, 2015) and allowed the plaintiffs to amend their pleading.