TRANSPORTATION (INTERMODAL) | Marc Cunningham LLC

Transportation (Intermodal)

Intermodal transportation is the movement of cargo in containers from an origin point in one country to a destination point in another country, through the use of any combination of two or more modes of transport (such as by rail, road or ship – but generally not by air, since standard airplanes are not designed to handle shipments of standardized containers, which can only be handled in very rare situations by specially-modified airplanes), in which several carriers may be utilized, each under a separate bill of lading (BoL) – thus differentiating intermodal transportation from multimodal transportation, in which the same carrier – referred to as a multimodal transport operator (MTO) – is utilized for all modes of transport, and operates under only one BoL.

Representation for: consignees; consolidators; customs brokers; distributors; drayage services; dock services companies; emerging transportation technology companies; exempt freight forwarders; expediters; exporters; freight forwarders; freight intermediaries; fulfillment services; importers; intermodal equipment providers (IEPs); intermodal marketing companies (IMCs); maritime carriers; maritime freight forwarders; motor carrier brokers; motor carriers; non-vessel operating common carriers (NVOCCs); ocean freight forwarders; ocean transportation intermediaries (OTIs); private carriers; port authorities; proprietary carriers; rail, ship and truck carriers; refrigerated carriers; shipper agents; shipper associations; shippers; shipper agents; specialty carriers; surface freight forwarders; suppliers; third-party logistics (3PL) service providers; transportation brokers; vehicle licensing companies; vessel operating common carriers (VOCCs); warehousing entities.

Negotiating and drafting various agreements, contracts, documents and templates related directly to intermodal transportation practice, such as for: asset management; bill of lading (BoL); block space; broker-carrier; broker-drayage intermodal; broker-shipper; broker/co-broker intermodal; charter; collateral access; cross-docking; courier services; customs brokerage; distribution; dock services; drayage (the term for moving an intermodal container from truck to railroad platform, or vice versa); drayage intermodal; driver sourcing; equipment interchange; equipment lease; equipment rental; equipment sourcing; export forwarder; export services; freight forwarding; global services; fulfillment services; import services; independent contractor; indirect air carrier; intermodal (individual for same project) BoLs; intermodal services; land waybill; last mile operations; master intermodal (MIA); master intermodal transportation (MITA); middle mile operations; motor carrier services; motor carrier/shipper; operator-owner; pick & pack; port-terminal operation; port partnership; rules of transportation; safety management; shipper-carrier; standard operating (SOA); Streamline intermodal (SLIA); supply chain management; uniform intermodal interchange and facilities access (UIIA); warehousing.

Compliance with domestic Federal and state, and international, administrative agencies, frameworks, guidelines, laws, recommendations, regulations, rules and statutes, related to intermodal transportation practice, such as the: 49 Code of Federal Regulations (CFR) § 1039.13 - Rail intermodal transportation exemption; 49 CFR Parts 1090-1099 – Intermodal Transportation; 49 United States Code (USC) § 5501 – National Intermodal Transportation System policy; 49 U.S. Code § 6303 - Intermodal transportation database; American Association of State Highway and Transportation Officials (AASHTO); American Trucking Association (ATA); Association of American Railroads (AAR); Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); Carriage of Goods by Sea Act (COGSA); Carmack Amendment; Congressional Budget Office (CBO); Consumer Product Safety Commission (CPSC); Customs and Border Protection (CBP); Customs-Trade Partnership Against Terrorism (C-TPAT); Defense Base Act (DBA); Department of Agriculture (DOA); Department of Commerce (DOC); Department of Transportation (DOT); DOT Office of the Inspector General (DOT OIG); DOT Office of the Secretary (DOT OST); European Union (EU) Combined Transport Directive (92/106/EEC) of 7 December 1992 on the establishment of common rules for certain types of combined transport of goods between Member States; Federal Aviation Administration (FAA); Federal Highway Administration (FHWA); Federal Maritime Commission (FMC); Federal Motor Carrier Safety Administration (FMCSA); Federal Motor Carrier Safety Regulations (FMCSR); Federal Railroad Administration (FRA); Federal Trade Commission (FTC); Federal Transit Administration (FTA); Intermodal Association of North America (IANA); International Organization for Standardization (ISO); Intermodal Safe Container Transportation Act (ISCTA); Intermodal Surface Transportation Efficiency Act (ISTEA); Intermodal Transportation Advisory Board (ITAB); International Fuel Tax Association (IFTA); International Registration Plan (IRP); International Trade Commission (ITC); Longshore and Harbor Workers' Compensation Act (LHWCA); Maritime Administration (MARAD); National Highway Traffic Safety Administration (NHTSA); National Industrial Transportation League (NITL); National Transportation Safety Board (NTSB); New Jersey Department of Environmental Protection (NJDEP); New Jersey Department of Transportation (NJDOT); Ocean Shipping Reform Act (OSRA); Occupational Safety and Health Administration (OSHA); Office of the U.S. Trade Representative (OTR); Organisation for Economic Co-operation and Development (OECD); Perishable Agricultural Commodities Act (PACA); Pipeline and Hazardous Materials Safety Administration (PHMSA); Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU); Shipping Act (SA); Surface Transportation Board (STB); Transportation Infrastructure Financing Innovations Act (TIFIA); Transportation Intermediaries Association (TIA); Transportation Research Board (TRB); Transportation Security Administration (TSA); Treasury Department (TD); Uniform Commercial Code (UCC); Uniform Intermodal Interchange & Facilities Access Agreement (UIIA); US Coast Guard (USCG); War Hazards Compensation Act (WHCA); World Trade Organization (WTO).

In general, intermodal shipments are most-efficient when: any rail leg of the haul is at least 450 miles; the total distance of the haul is more than 700 miles; any individual dray distance in the haul does not exceed 50 miles from each individual origin point to each individual destination point; the gross weight of each individual load in the shipment does not exceed 42,500 pounds; the gross value of each individual load in the shipment does not exceed $100,000; there are the fewest transloading (the unloading the components of a shipment from one mode of transport – such as from International Standards Organization – ISO – standard 20’ or 40’ containers, and then reloading the same components of the shipment into a new mode of transport, such as to 53’ ISO containers) requirements; the possibilities of consolidation and pooling (when smaller loads can be combined with other loads in the same shipment, so transportation modes – such as containers – are all completely filled) availability; whether certain portions of the load can be forward-positioned at strategic points for fast pick-up or transfer).

Any intermodal or multimodal shipping agreement that includes any element of transportation by rail should, at a minimum, include: a reasonably-detailed itemization of the individual items in the shipment; who bears risk of loss (ROL) on every segment of the trip; limitation of liability (LOL) on every segment of the trip; over-dimension surcharge; required insurance for both parties from origin point to destination point, and at all points in-between; standard terms and conditions (Ts & Cs – such as: altered movement of tendered shipment; assignment; choice of law; combination rate charges; contact information for each party; domestic storage; flip charges; force majeure; hazardous materials – hazmat – surcharge; indemnification; intermodal container transfer facility – ICTF – gate fee; international storage; payment; mis-describing penalties – such as, for example: for specifying the incorrect weight of the container or shipment; mis-describing the contents of a container or shipment, or describing a domestic shipment as an international shipment, or describing a hazmat shipment as freight of all kinds – FAK; schedule of milestone dates; venue; violations of metal products conditions; violation of prohibited articles regulations; violations of restricted articles prohibitions; use of rail carrier’s US Customs bond; and the like); the various duties of the rail carrier on every segment of the trip (such as: what mode of motor transport – such as container carrier or tractor-trailer truck – should be engaged to get the shipment from the location point to the train loading point; who is responsible for unloading the shipment from the mode of transport onto the train well car (if a container) or rail car – whether the shipment is contained in containers or must unloaded and loaded onto the train as various individual items by hand; coupling or uncoupling of particular rail cars during transit; unloading/reloading/unloading of various containers or rail cars during transit; unloading at the final rail terminus point; what mode of motor transport – such as container carrier or tractor-trailer truck – should be engaged to get the shipment from the final rail terminus point to the final destination point; who unloads the container or shipment at the final destination point).

Familiarity with the basic pricing schemes used for intermodal contracts, such as: contract pricing (the generally annualized individual fixed price for a given intermodal contract, based on costs per unit predetermined in a schedule of rates by the carrier, based on a predetermined set of standard factors, such as: distance; modes of transport required to fulfill all legs from point of origin to point of destination; time of year; time requirements; tonnage; transloading requirements; type of goods; and the like); project pricing (the carrier’s price, based on whatever the carrier wishes to charge for fulfilling the particular intermodal contract); and, spot-rate pricing (the rate for a particular intermodal contract negotiated between the carrier and the shipper at the time the shipper requires the commencement of the contract, which fluctuates based on the time of year and availability or particular transportation resources to the carrier at that time).

Familiarity with the basic types of intermodal carriers (IMCs), such as the: asset-lite IMC (owns and utilizes only some of the assets required to fulfill the entire intermodal contract, and subcontracts whatever it does not own); bi-modal IMC (a/k/a asset IMC, meaning that such an asset IMC owns and utilizes only its own dray and trucking assets – such as: chassis; containers; drivers; tractors; trailers; and the like – but does not own any of the air, rail or ship assets that may be required to fulfill the entire intermodal contract, but rather, the asset IMC will subcontract any air, rail or ship requirements of the intermodal contract); freight broker IMC (which does not actually own any physical shipping assets, and has no direct relationship with any particular air, rail, sea or truck carrier, but which subcontract all the services required to fulfill the entire intermodal contract to various IMCs); non-asset IMC (which does not actually own any physical shipping assets, but which rather subcontracts all the individual services for fulfilling the entire intermodal contract to various carriers as needed); rail retailer IMC (only the two Class 1 Canadian railroads – Canadian National Railway and Canadian Pacific Railway – which market complete turnkey intermodal solutions directly to shippers, and then subcontract whatever services they may need to fulfill the entire intermodal contract).

Familiarity with the basic sizes of intermodal containers, as defined under the International Standards Organization (ISO) guidelines, such as the: 1 Twenty-foot Equivalent Unit (TEU, a unit of measurement derived from the 1,360 cubic foot – 151.11 cubic yard – volume of a one-TEU container) (20’ long x 8’ wide x 8.5’ high); high cube (20’ long x 8’ wide x 9.5” high); and, 2 TEU (40’ long x 8’ wide x 8.5’ high).

Familiarity with the basic types of intermodal containers: dry freight (the most common type, air-tight, no ventilation system, may have minimal interior insulation); flat-rack (has collapsible sides that can be folded down to accommodate odd-sized items); insulated (has insulated interiors, for delicate cargo that may be sensitive to exterior temperature changes); open-top (no roof, for heavy equipment or large machinery); refrigerated (a/k/a “reefer containers”, insulated interior, has an interior climate-control system with a range of -85F to +140F, for perishable goods); tank (a/k/a “tankers”, fabricated of non-corrosive materials, air-tight, liquid-tight, should generally be kept at least 80% full to minimize surging fluids, but should not be more than 95% full, to allow for thermal expansion).

Management of typical tasks related to intermodal transportation practice, such as: acquisitions; antitrust; cargo claims; environmental claims; freight charge disputes; freight intermediary issues; insurance coverage disputes; labor issues; licensing; mergers; permitting; regulatory matters; restructurings; subrogation; transportation contracting; unionizing; vehicular casualty work; warehouse contracting.

Drafting Department of Justice (DOJ) business review letters regarding business conduct in relation to the antitrust laws.

Representation for administrative hearings and responses to governmental investigations.

Familiarity with various state intrastate operating authority requirements.

Familiarity with Federal Motor Carrier Safety Administration (FMCSA) operating authority filing requirements (generally: $300 filing fee; evidence of the required insurance coverages; and, designation of agents for service of process) for brokers (designation of agents using FMCSA Form BOC-3; post either a surety bond using FMCSA Form BMC-84 or a bank trust agreement using FMCSA Form BMC-85, in the amount of $75,000), freight forwarders (designation of agents using FMCSA Form BOC-3) and motor carriers (designation of agents using FMCSA Form BOC-3; evidence of personal injury and property damage insurance with limits of at least either $750,000, $1M or $5M, depending on the operating authority for which the particular motor carrier is applying; for completely new motor carrier entities, then FMCSA Form MCS-150 must be filed within the first 90 calendar days of operations, and must be updated every 2 years; if the particular motor carrier is applying to transport household goods, then evidence of cargo insurance using FMCSA Form BMC-34).

Familiarity with the 49 C.F.R. §377 Federal regulations regarding extending credit to shippers (generally, freight charges should be paid within 15 calendar days of invoicing, unless modified by contract).

Familiarity with the 49 U.S.C. §13710, §14101(b) and §14705(a) Federal regulations regarding freight charges (generally must be fully-billed within 180 calendar days of invoicing, and any actions to recover invoiced freight charges must be commenced within 18 months of invoicing; the consignor/shipper is primarily-liable for payment of the freight charges, unless it has an executed nonrecourse agreement or a contractual provision with the carrier, or has otherwise placed the carrier on notice that it is not liable for the freight charges).

Familiarity with using blockchain for secure bills of lading (BoLs).

Provided intermodal legal training for management and personnel.

Working knowledge of the proper usage of the Incoterms maintained by the International Chamber of Commerce (ICC), such as: the seven (7) Incoterms applied to all modes of transport – CIP (meaning ”Carriage and Insurance Paid To”) [then insert place of destination]; CPT (meaning “Carriage Paid To”) [then insert place of destination]; DAP (meaning “Delivered at Place”) [then insert place of destination]; DDP (meaning “Delivered Duty Paid”) [then insert place of destination]; DPU (meaning “Delivered at Place Unloaded”) [then insert place of destination]; EXW (meaning “Ex Works”) [then insert place of delivery]; FCA (meaning “Free Carrier”) [then insert place of delivery]; and, the four (4) Incoterms applied to inland waterway and ocean transport – CIF (meaning “Cost Insurance and Freight”) [then insert named port of destination]; CFR (meaning “Cost and Freight”) [then insert named port of destination) FAS (meaning “Free Alongside Ship”) [then insert named port of loading]; FOB (meaning “Free on Board”) [then insert named port of loading].

Working knowledge of the Uniform Intermodal Interchange & Facilities Access Agreement (UIIA) intermodal contract minimum insurance requirements for various members (such as: box truckers; bulk haulers; container haulers; couriers; dump operations; freight forwarders; hazmat carriers; hot shot trucking companies – those which specialize in carrying smaller, time-sensitive loads; less-than-a-load – LTL – trucking companies; tow-truck operations) in various situations, that must be specified on a UIIA ACORD 22 Certificate of Insurance (CoI) – pursuant to the instructions on UIIA Form 5A –which must also specify the President of the Intermodal Association of North America as the certificate holder, and may include: cargo insurance (CI) with limits specified on UIIA EP Rules Form 5B (generally at least $100,000); commercial auto liability (AL) with a combined single limit (CSL) of $1 million (all UIAA equipment providers – EPs – with which the insured may do any business must be specified as additional insureds pursuant to UIIA Form 5C; the auto policy must be clearly-delineated as either an “any auto”, “all owned and hired” or “scheduled or hired” policy, and not as merely an “all owned” or “scheduled only”; if the insured motor carrier is actually self-insured, then such motor carrier must obtain special UIIA-approved language that must be inserted in the self-insured document); commercial general liability (CGL) with a limit of $1 million per occurrence (of which no portion thereof can be self-insured); employer’s liability (EL) with limits specified on UIIA EP Rules Form 5B (generally at least $500,000); equipment provider checklist UIIA Form 5C (requiring that any EP with which the insured may do any business must be specified as additional insureds; on the UIIA ACORD 22 certificate, the insurance agent must check the box under the description of operations, thus confirming that the EPs checked on UIIA Form 5C are additional insureds on the appropriate policies; insurance agents that wish to provide blanket additional insured coverage may do so by checking the appropriate blanket additional insured boxes on the UIIA ACORD 22 certificate, and may use the wording specified on the UIIA ACORD 101 Form 5A); exclusionary policy endorsements (that purport to exclude, limit or modify any of the insurance policies specified on the UIIA ACORD 22 certificate must be attached to and referenced on the UIAA ACORD 101 form when the ACORD 22 certificate is submitted); National Association of Insurance Commissioners (NAIC) Numbers (for each policy specified on the UIAA ACORD 22 certificate, as well as the rating for each insurance provider, should be provided by the insurance agent, both of which may be obtained from the A. M. Best “Best Key Rating Guide”); notice of policy cancelation period must not be less than thirty (30) calendar days prior to the cancelation of any policy, unless such cancelation is due to non-payment of premiums by the insured, in which case the cancelation period cannot be less than ten (10) calendar days prior to the cancelation; trailer interchange insurance (TII – covering any non-owned equipment for collision, comprehensive, fire, physical damage and theft while in the motor carrier’s care, control or custody, with limits specified on UIIA EP Rules Form 5B – generally at least $30,000); truckers’ uniform intermodal interchange endorsement (UIIE-1, CA23-17 or TE23-17B – a hold-harmless endorsement that must be included in the AL; on the UIIA ACORD 22 certificate, the insurance agent must check the box adjacent to the language describing the applicable operations, thus confirming that this endorsement is part of the AL coverage); umbrella insurance (UI) as may be required (provided that the UIIA ACORD 22 certificate should specify to what policies the umbrella coverage applies, or it will be assumed that the UI is over all the policies specified on the UIIA ACORD certificate); and, workers’ compensation (WC) with limits specified on UIIA EP Rules Form 5B (generally at least $500,000).

Intermodal motor carriers may also wish to carry other types of specialized liability insurance coverages, such as: auto hauler; business owners; commercial property; courier; cyber; directors and officers (D&O); employment practices; errors and omissions (E&O); excess; fiduciary; flatbed truck; fleet truck; garage keepers; group health; hazmat truck; high-risk truck; human resources; liquor; moving and storage; new venture; owner-operator; reefer truck; technology.

Consultation regarding the MCS-90 endorsement for the auto liability policies of various regulated motor carriers, ensuring that certain Federally-mandated coverage (such as environmental restitution) and limits are included is such motor carriers’ auto liability coverage.

PROGRESS DRAFT - Last updated 210531_2229