Hidden Pitfalls in Carrier Contracts

Ontario Transportation Industry Lawyer holding sign that says "Read the Fine Print in Shipping Contracts"

Whether you are a carrier, broker, or performing carrier there are certain risks you take on when signing a contract.

The question is: Do you know the risks your company is agreeing to when signing a contract?

In a busy and competitive industry, it can be difficult to take the time necessary to thoroughly review contracts before signing. However, it is imperative that you take the time to review! There are certain risks your company may be assuming and certain types of authority you are giving up by signing  a contract without taking the time to understand what is written.

As your insurance partner, our aim is to empower you and your company with the resources necessary to operate profitability and safely. To do this it is important to be aware and informed before signing off on contract terms. 

To support this discussion, we invited Gordon Hearn (email) and Carole McAfee (email) from Fernandes Hearn LLP to join us for a webinar. In the webinar Gordon and Carole discuss various aspects of shipper-carrier, shipper-broker and broker-carrier contracts.

What are the potential pitfalls in these contracts?

Current trends and potential pitfalls we are noticing include:

  • A lack of equilibrium, especially the brokers who are often stuck in the middle;
  • Brokers and carriers signing whatever the shipper or upstream broker want you to sign without assessing the risk;
  • And when something happens being caught off-guard by surprise “special contract terms”. 

Click the play button to view the webinar

 

The webinar reviewed four key areas:

Aggressive Terms in Contracts

Contract wordings can be written in such a way to drastically shift the risk downstream. One of the areas where terms are becoming increasingly aggressive is in respect to cargo loss and damage. Gordon and Carole discuss concepts like “Conflicts of law”, cross-boarder shipping dynamics, the Carmack Amendment, and Canadian “uniform bill of lading” vs agreement by contract.

Are Your Terms of Service Even Applicable?

Do you even know whether your terms of service apply? The webinar discusses “by reference” vs. expressly being set forth, the “Loadlink” conundrum, and “Entire Agreement” clauses.

Liability Risk within Important Clauses

Are you brokering loads out? If so, are you ‘crossing the line’ in terms of ensuring that your performing carrier is an independent contractor? Do you know if you are even able to broker out loads based on contract terms?

We dive deep into important clauses for your operation to consider including:

  • Force Majeure
    • “if either party is prevented from the performance of any service or act required by this contract by reason of strikes, lock-outs, labor troubles, inability to procure materials, failure of power, government act or regulations, riots, terrorism, war or other reasons of a like nature not the fault of, or under the control of, the party delayed in performing services or doing acts required under the terms of this agreement then performance of that act is excused for the period of the delay…provided that prompt notice be provided.”
  • Indemnity Provisions 
  • Insurance Requirements
  • Consequential Damages
  • Deemed Loss Clauses
  • Governing Law and Venue
  • and the impact of the STF Rule (USA “Crush and Dump” issue)

Contracting Commercial Considerations

What risks are you assuming inside of these considerations?

We cover some of the most important areas to focus in on including:

  • “Money for contract of carriage held in trust”
  • The Bill of Lading Act
  • Cargo Claim Set Off
  • and No Back Solicitation

What should we do next?

Nearer to the end of the webinar, we share action items to take away for your operation. We advise watching the webinar throughout to learn why those recommendations are provided. 

We do know that it is important to have a strategy in place. Part of a wise strategy is to have a strong relationship with legal professionals that specialize in the transportation industry. Both Gordon Hearn and Carole McAfee are transportation legal specialists that can support you and your company in making smart contract decisions.

To discuss more and set time to talk with Carole and Gordon please send them an email:Transportation Lawyers Gordon Hearn and Carole McAfee from Fernandes Hearn sitting with Bryson Insurance Senior Account Executive Linda Colgan

About the Presenters:

Gordon Hearn

Gordon represents international and domestic interests involved in the transportation, supply chain and distribution of goods in litigation, regulatory and contractual matters.

He advises shippers, receivers, carriers, logistics providers (3PL’s, supply chain and “fulfillment” providers, freight forwarders, load brokers, customs brokers and warehousemen) and their insurers on their legal interest and exposure in the international, cross-border and domestic carriage of goods by all modes of carriage.

Gordon is a Past President of the Transportation Lawyers Association, an independent, international bar association whose members assist providers and commercial users of transportation and logistics services.

Gordon is a frequent speaker at conferences and seminars throughout North America on the above matters. Gordon has authored numerous related papers and articles.

Carole McAfee Wallace

Carole McAfee Wallace is a lawyer with Fernandes Hearn LLP, a Toronto based law firm that specializes in transportation.

Carole represents both domestic and international trucking and bus companies on a wide range of transportation matters including regulatory compliance, defence of provincial offences, contract drafting and commercial litigation.

Carole also practises employment law, advising both federally and provincially regulated employers in Canada, and employers internationally, on compliance with employment standards, the management of human rights issues, including the duty to accommodate, and on occupational health and safety compliance including responding to workplace harassment complaints.

She appears on her clients’ behalf before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Ontario Court of Appeal, the Ontario Highway Transport Board, the Licence Appeal Tribunal, the Ontario Human Rights Tribunal and the Canadian Human Rights Tribunal.

Linda started her career in the insurance industry in 1979 and gravitated toward the niche market of transportation insurance in 1986. Linda has been active in the transportation community since her beginnings and is a Board Member with the Durham Region Transportation Association. Since 2006, Linda has been contributing relevant industry articles in Ontario Trucking monthly periodicals

Webinar: The Importance of Fighting Tickets

Joel from Paradigm Ticket Defense talking about the importance of fighting tickets during the webinar

As the insurance market continues to harden for the transportation industry, it has never been more important to do everything in your power to maintain a safe record. This means taking proactive steps to create things like a Culture of Safety within your trucking organization. It is also important to develop reactive strategies for situations like fighting tickets.  

Joel Lacoursiere is a paralegal and owner of Paradigm Ticket Defense. Joel joined us to discuss the importance of fighting tickets in the transportation industry. At a high level Joel and Linda Colgan, Senior Transportation Account Executive with Bryson Insurance, cover three main areas:

  • Demerit Points: What are they? How do you collect them? And how do you minimize their impact on your driving record?
  • CVOR Score: How do tickets and demerit points relate to a company’s CVOR score?
  • What do when an officer pulls you over: including what items to record, pictures to capture, what to say and to whom and how to behave with the officer.

Do you have questions and need insight from a licensed paralegal specializing in fighting tickets for the transportation industry?

Joel is offering a complimentary consultation. You can email Joel here -> info@paradigmticketdefence.ca or call his office at (416) 909-0620.

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Our next webinar is quickly approaching and it covers an extremely important topic – Cyber Risk. Kyle Gray, from Ridge Canada, is joining us to discuss cyber liability coverage, protection strategies and what to expect with the Federal Government making it mandatory for businesses who suffer a cyber breach to notify the government and anyone who may have had data stolen.

webinar registration button in blue

Tammy ‘fell in’ to insurance from the aviation sector. Since 1997, Tammy has navigated her way through the trucking industry as a Broker.  Staying true to course and guided by her passion, she has held a variety of positions ranging from Account Executive to General Manager. Today, Tammy is the Director of Transportation at Bryson Insurance.

Webinar: Why Your CVOR Score Matters!

The Commercial Vehicle Operator’s Registration (CVOR) system is administered by the Ministry of Transportation of Ontario and is designed to monitor insurer carrier safety. The score is very important for a number of reasons which we uncover below.

Chris Harris, of Safety Dawg, joined Linda Colgan, Bryson Transportation Insurance Senior Account Executive, to discuss why the CVOR matters for companies that operate commercial vehicles.

The webinar covered various CVOR related topics including:

  • Understanding how the MTO interprets violation rates and the actions they take depending on your company’s rate;
  • How your CVOR can reveal opportunities for training;
  • What insurance carriers focus on when looking at your Level II CVOR.

If you enjoy this education, make sure to take a moment to register for our next two complimentary webinars:

Before jumping into the webinar, you can  download the “Your CVOR Score Matters” PowerPoint slide deck here to follow along.

Have a Question about your CVOR score? Click here to connect with our team of Bryson Transportation Insurance professionals today

Webinar notes:

  • Answering a question on fighting tickets in the United States, Chris and Linda talked about the Trucking Industry Defense Association (TIDA). TIDA is a non-profit association with members devoted to sharing knowledge and resources for defense of the trucking industry. Their commitment is to help the industry by reducing the cost of claims and lawsuits.
  • Answering a question on training drivers, Chris and Linda shared three online training resources for ongoing training support. These were Carriers Edge, Infinit-I Workforce, and Chris Harris’ Safety Dawg.
  • Linda and Chris also shared about the Ministry of Transportation of Ontario’s Commercial Vehicle Operator’s Safety Manual. The use of this guide should increase knowledge of the provincial safety requirements resulting in a more efficient and safe operation of truck and bus operators. You can download the manual in its entirety here.
  • Finally, Linda and Chris talked about the “Schedule 1” Inspection Overview which you can download here.

Tammy ‘fell in’ to insurance from the aviation sector. Since 1997, Tammy has navigated her way through the trucking industry as a Broker.  Staying true to course and guided by her passion, she has held a variety of positions ranging from Account Executive to General Manager. Today, Tammy is the Director of Transportation at Bryson Insurance.

Webinar: Impacts of Legalized Marijuana in the Trucking Industry and Workplace

The Federal Government of Canada plans to legalize recreational cannabis at some point during 2018.

The legalization of recreational cannabis has the potential to greatly impact companies in the transportation industry. The leading concern noted by workplaces is for employees who operate motor vehicles. The top five concerns are:

  1. Employees operating motor vehicles
  2. Disciplinary procedures
  3. Decreased work performance
  4. Employees using heavy machinery
  5. Attendance issues

As well, a study by Deloitte shows that currently 22% of Canadian adults consume recreational marijuana. Once cannabis becomes legal another 17% of Canadians say they would consider consuming as well. That jumps the number of Canadians who will be consuming recreational cannabis to around 40%. This will include many employees and drivers.

How will the legalization of cannabis impact the workplace and the transportation industry?

To to answer this question we invited Carole McAfee Wallace, a lawyer with Fernandes Hearn LLP, to discuss the impacts of marijuana in the workplace from a legal perspective. In this webinar we provide an overview of the current regulatory regime for both medical and recreational marijuana, impact of marijuana on individual performance, and review what employers can and should do going forward.

We provide a special focus for operating motor vehicles and discuss the negative consequences Canadian drivers would face being caught impaired while operating south of the boarder in the United States.

Tammy ‘fell in’ to insurance from the aviation sector. Since 1997, Tammy has navigated her way through the trucking industry as a Broker.  Staying true to course and guided by her passion, she has held a variety of positions ranging from Account Executive to General Manager. Today, Tammy is the Director of Transportation at Bryson Insurance.