TLA TTL July 2022

The

Transportation Lawyer A Comprehensive Journal of Developments in Transportation Law

July 2022 Volume 24 Number 1

translaw.org

A Joint Publication of the Transportation Lawyers Association and the Canadian Transport Lawyers Association

ctla.ca

Transportation Lawyers Association 2022–2023 Executive Committee Members

Canadian Transport Lawyers Association 2021–2022 Officers and Directors

President Christopher M. Kelly Gallivan, White & Boyd, P.A. 6805 Carnegie Blvd., Ste. 200 Charlotte, NC 28211 (704) 227-1940 ckelly@gwblawfirm.com

Representatives-At-Large Peggy Smith Bush Term 5/22 – 5/24 Marshall Dennehey 315 E. Robinson St., Suite 550 Orlando, FL 32801 psbush@mdwcg.com

President/Président Carole McAfee Wallace Fernandes Hearn 155 University Ave., Ste. 700 Toronto, Ontario M5H 3B7 (416) 203-9551 carole@fernandeshearn.com

Directors/Administrateurs Jason Lattanzio Alexander Holburn Beaudin & Lang LLP 2700 -700 West Georgia St. Vancouver, BC V7Y 1B8 (604) 484-1747 jlattanzio@ahbl.ca

President-Elect Eric R. Benton Mayer LLP 2900 N. Loop W., Ste. 500 Houston, TX 77092 (713) 863-2781 ebenton@mayerllp.com

Chris E. Cotter Term 5/22 – 5/24 Roetzel 222 S. Main St., Suite 400 Akron, OH 44308 ccotter@ralaw.com

Orvel Currie DD West LLP 300-305 Broadway Winnipeg, MB R3C 3J7 (204) 957-6401 ocurrie@ddwestllp.com

First Vice President Katherine T. Garber Clark Hill PLC 909 Fannin Street, Ste. 2300 Houston, TX 77010 (713) 951-5665 kgarber@clarkhill.com

Jeffrey E. Cox Term: 06/21 – 5/23 Law Office of Seaton & Husk, LP 2240 Gallows Rd Vienna, VA 22182 (703) 573-0700 jeffcox@transportationlaw.net

Vice President & Secretary/ Vice-président et secrétaire Robin Squires Borden Ladner Gervais LLP 27 Adelaide St. W Toronto, Ontario M5H 4E3 (416) 367-6595 rsquires@blg.com

Second Vice President Louis Amato-Gauci Miller Thomson LLP Scotia Plaza 40 King Street, Ste. 5800 PO Box 1011 Toronto, ON M5H 3S1 Canada (416) 595-8551 lamatogauci@millerthomson.com

Kristen M.J. Johnson Term: 05/22 - 05/24 Taylor Johnson PL 3023 Eastland Blvd, Suite 103 Clearwater, FL 33761 kjohnson@taylorlawpl.com

Secretary/Treasurer Jeffrey M. Pincus Lewis Johs Avallone Aviles, LLP 1377 Motor Parkway Islandia, NY 11749 (416) 595-8551 jmpincus@lewisjohs.com Immediate Past President Steven M. Canty Orleans Canty Novy LLC 65 E. Wacker Pl., Ste. 1220 Chicago, IL 60601 (847) 625-8200 scanty@ocnlaw.com Voting Past Presidents Dirk H. Beckwith Foster, Swift, Collins & Smith, PC 28411 Northwestern Hwy., Ste. 500 Southfield, MI 48034 (248) 539-9918 dbeckwith@fosterswift.com Marc S. Blubaugh Benesch, Friedlander, Coplan & Aronoff, LLP 41 S. High St., Ste. 2600 Columbus, OH 43215 (614) 223-9382; Fax: (614) 223-9330 Email: mblubaugh@beneschlaw.com Kathleen C. Jeffries Scopelitis, Garvin, Light, Hanson & Feary, LLP 2 N. Lake Ave., Ste. 560 Pasadena, CA 91101 (626) 795-4700 kjeffries@scopelitis.com Greg E. Summy 3100 Audley Way Virginia Beach, VA 23452 (757) 408-1038 vbsooner@cox.net John F. Wilcox, Jr. Dysart Taylor Cotter McMonigle & Brumitt, P.C. 4420 Madison Ave. Kansas City, MO 64111 (816) 931-2700 jwilcox@dysarttaylor.com

Beth Anne Lashuk Term: 06/21 – 5/23 Jurca & Lashuk, LLC 141 East Town St., Ste. 202 Columbus, OH 43215 (614) 846-9137 blashuk@jurcalashuk.com Thomas C. Martin Term: 05/22 - 05/24 Price, Meese, Shulman & D'Arminio, P.C. 50 Tice Blvd.

Woodcliff Lake, NJ 07677 tmartin@pricemeese.com Jason Orleans Term: 06/21 – 5/23 Orleans Canty Novy LLC 65 E. Wacker Pl., Ste. 1200 Chicago, IL 60601 (847) 625-8200 jorleans@ocnlaw.com Kim E. Stoll Term: 06/21 – 5/23 Fernandes Hearn, LLP 155 University Ave., Ste. 700 Toronto, ON M5H 3B7 Canada (416) 203-9509 kim@fernandeshearn.com CTLA Representative-At-Large Jean-Francois Bilodeau Borden Ladner Gervais LLP 1000, rue De La Gauchetiere Ouest, Suite 900 Montreal, Quebec, Canada H3B 5H4 (514) 954-3183 jbilodeau@blg.com TLA EXECUTIVE OFFICE 111 West Jackson Blvd., Suite 1412 Chicago, IL 60604 (913) 222-8652; Fax: (913) 222-8606 Email: tla-info@kellencompany.com Website: www.translaw.org

Treasurer/Trésorier Jaclyne Reive Miller Thompson LLP 5800 - 40 King St. W, Box 1101 Toronto, Ontario M5H 3S1 (416) 595-7935 jaclyne.reive@gmail.com / jreive@millerthomson.com Interm Director of Communications/ Directeur des communications Pui Hong Trimac Transportation 3215 - 12 St. Calgary, AB T2E7S9 (403) 298-5140 phong@trimac.com

James Manson Fernandes Hearn 155 University, Ave #700 Toronto, Ontario M5H 3B7 (416) 203-9820 james@fhllp.ca Lori Posluns Traffic Tech 16711 Trans-Canada Highway Kirkland, QC H9H 3L1 Montreal, Quebec Eric Machum Metcalf & Co 1459 Hollis St. Halifax, Nova Scotia B3J 1V1 (902) 420-1990 ericmachum@metcalf.ns.ca Non-Resident Director Jeffrey Simmons GlobalTranz 350 N Dobson Rd #130, Scottsdale, AZ 85256 Office: 866-275-1407 Direct: 480-339-3615 jeff.simmons@globaltranz.com Past President/Ancien président Jean-Francois Bilodeau Borden Ladner Gervais LLP 1000, rue De La Gauchetiere Ouest, Suite 900 Montreal, Quebec, Canada H3B 5H4 (514) 954-3183 jbilodeau@blg.com CTLA Website: www.ctla.ca

The Transportation Lawyer Copyright © 2022. TLA and CTLA. All rights reserved.

Publication Schedule Submission Deadlines August 4, 2022 September 30, 2022 November 15, 2022 February 2, 2023

PLEASE submit material by email in time to meet these deadlines to TLA Editor, Katherine T. Garber (see address above).

You can also call or email either editor with questions.

The Transportation Lawyer (ISSN 1533 6018) is published five times per year (Feb., April, July, Oct. and Dec.) It is published by the Transportation Lawyers Association. POSTMASTER: Send address change to The Transportation Lawyer, 111 West Jackson Blvd., Ste. 1412, Chicago, IL 60604, email: TLA-info@kellencompany.com.

July

Contents

Association Business

TLA Feature Articles and Case Notes

Messages from the Presidents

Feature Articles

TLA – Christopher M. Kelly ............................................................................... 2

Vaccination Requirements for Transportation Workers in International Commerce – Dylan Jones and Ian Breneman................................................... 35

TLA – President’s Biography – Christopher M. Kelly – Steffan Kelly................. 4

Editors’ Columns

Formula 1 and MotoGP Supply Chain Interruptions in the 2022 Season!

Transportation & Logistics Lessons to Be Learned – Heather C. Devine and Paul S. Jon..................................................................... 40

TLA — Katherine T. Garber ................................................................................ 7

Case Notes

CTLA — Pui C. Hong........................................................................................... 8

Supreme Court of Indiana Reaffirms Interstate Requirement for MCS 90 Endorsement – Robert “Rocky” Rogers.............................................................. 44

CTLA — Carole McAfee Wallace ........................................................................ 6

TLA Secretary/Treasurer’s Report – Louis Amato-Gauci .................................. 10 2022 Transportation Law Institute – Beata Shapiro and Dan Sonneborn...... 11 2022 Annual Conference Report – Fred Marcinak and Melissa Richardson....

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TLA 2022 Annual Conference Pictorial..........................................................

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Florida Supreme Court Takes the Air Out of Inflated Medical Damages: Elaine Dial v. Calusa Palms Master Association, Inc. – J.W. Taylor................................. 46 LeDure v. Union Pacific: Locomotive Inspection Act Case Law Stays Intact and “In Use” for Now – Al F. Teel and Madeline E. Hughes....................................... 48

2022 Lifetime Achievement Award Presented to Patrick K. McMonigle...... 20 Letter of Appreciation – Patrick K. McMonigle...............................................

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2022 Distinguished Service Award Presented to William B. Pentecost, Jr. .......................................................... 23 Letter of Appreciation – William B. Pentecost, Jr........................................... 24 2022 Distinguished Service Award Presented to Jeffrey M. Pincus............. 25 Letter of Appreciation – Jeffrey M. Pincus...................................................... 26

TLA Leadership TLA 2022-2023 Officer..................................................................................... 27 TLA Committee Chairs for 2022-2023............................................................. 27

TLA Committee Corner and DEI Committee Report TLA Committee Corner – Technology Committee – William Davis.................. 32 TLA DEI Committee Report – Hillary Arrow Booth............................................ 34

CTLA Feature Articles and Case Notes Feature Articles COVID-19 Case Law Updates and Developments for Transportation Employers – Ben Aberant and Nicole Deniset .......................... 51 Status Report on the Successes in Using Foreign Ships to Lay Submarine Cables in Canada – Jean Francois Bilodeau....................................................... 54

Case Note Alberta Court of Queen's Bench Clarifies Carriers' Rights to Random Drug and Alcohol Testing – Pui C. Hong and Marie Boyd ................................................. 58

Membership Section In Memoriam – Tiffany Arend Campbell.......................................................

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TLA Membership Application ........................................................................

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TLA Committees Application Form ................................................................ 62 CTLA Membership Application ...................................................................... 63 Calendar – The Year Ahead ............................................................................ 64

Association Business

TLA

President’s Message

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ave you ever heard a song and decided that it’s your anthem, your theme song? A friend of mine in college recommended a song for me to play just before an exam to get fired up and ready to go. It was Van Halen’s “Right Now.” I think the lyrics to that song are appropriate for the start of a term as President of the TLA. The song begins like this: Don't wanna wait 'til tomorrow Why put it off another day?

One by one, little problems Build up, and stand in our way, oh!

One step ahead, one step behind it Now you gotta run to get even Make future plans I'll dream about yesterday, hey!

Come on turn, turn this thing around

an uncertain time of COVID variants and fiscal stress. Steve’s Annual in Williamsburg, Virginia was a resounding success with great panels and outstanding social events. The axe throwing may become a recurring event at TLA meetings as a Viking way to pick the next member to be placed on the ladder for leadership. I am really lucky to be handed the baton from Steve because he has given me a good 100-meter advantage that I will work hard not to squander.

I want to personally thank the members who were always welcoming and encouraging to me when I walked into TLA over 20 years ago as a young lawyer. There are so many members over the years who have played a role in making me feel comfortable and valued in the TLA and who I am lucky to call friends. Some have been mentors who steered and guided me, and who I think deserve special mention.

Dirk Beckwith encouraged me to get active (in some instances literally pushing me to do so) and selected (Right now) me to run his TLI in Los Angeles, and has been a friend Hey! It's your tomorrow and mentor who has supported me. Steve Novy (Right now) listened to Dirk and gave me a shot at co-chairing his Come on, it's everything Annual in TLA with Steve Canty, and trusted us to do (Right now) it and do it right. Kathleen Jeffries saw a wandering Catch your magic moment lawyer after a Chicago Regional and invited me to join Do it right here and now her large dinner table and has since provided sage It means everything.

Christopher M. Kelly advice and insight. Fritz Damm, the fierce protector I loved that song the very first time I heard it and of all that is TLA – getting in my ear at coffee breaks, I can still listen to it over and over. It captured a way to live that resonated with me: Don’t wanna wait ‘til tomorrow. Don’t dinners and happy hours to encourage and push me, as he does put it off, whether it is easy or hard, get it done. Don’t let problems everyone, to protect how special TLA is for its members. Greg Summy build up, or you will be overwhelmed. As attorneys, we are planners for providing well-timed wise cracks and leadership coupled with whose jobs are to avoid a buildup of problems. It is what we get paid humor. And, believe it or not, despite my impeachment push (Oops, to do. Whether planning for trial or a big transactional deal, we are I did it again), Steve Canty has been an important TLA mentor for paid to look ahead and focus on the “what ifs,” “what could be” and me. To say I am riding Steve’s coattails would be an understatement. the “end result.” Even as parents, Steffan and I have always tried Steve’s discipline, toughness, focus and organization are an example to stay one step ahead for the sake of our kids, working toward an I hope to emulate in my term and, frankly, in my life.

I am excited for the next year of TLA and with the help of Rebecca unrealized future for them based upon their potential. But this song, more importantly, also reminds me to be present in the moment; Pierucci and Jill Gabbert (both of whom deserve my humble thanks right now, means everything. I love it. Success, whether business or and gratitude), I have been working hard to ensure that TLA continues to offer great educational programming at destination spots that personal, is based upon focusing on doing your best, right now.

Make future plans I’ll dream about yesterday, hey! My hope is will increase attendance from our membership. Please mark your that I will build upon yesterday and the hard work of Steve Canty, calendars for the TLI in Boston, Massachusetts at the Fairmont Copley John Wilcox, Jeff Simmons and Hillary Arrow-Booth, the officers Square on November 18, 2022. The program chairs for the 2022 TLI leading the TLA when I first put my foot on the ladder. I want to are Beata Shapiro and Daniel Sonnenborn, and their program comspecifically congratulate Steve Canty on an incredibly successful mittee consists of Louis Amato-Gauci, Ali Heidari Saeid, Kathleen presidency that had an agenda that started early when he was Second Jeffries, Mark Andrews, and Gene Zipperle. They have been workVice President and focused on a push to revitalize and rely upon the ing hard and I thank them for their leadership and hard work. The committees of TLA to bring relevant relationship and substance to the theme for the TLI will be “Massachusetts Authors” which are many, organization. He ushered in an era of committee involvement and varied and great.

The Chicago Boot Camp and Regional, at the Radisson Blu, activity, and initiated a membership drive that has the TLA once again within sight of 900 members. Steve’s meetings were all successful in will take place on Thursday, January 19, 2023, and Friday, January

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20, 2023. The program chairs for the Chicago Regional are Rob Reeb and Laura Gordon. The chair of the Boot Camp is Bill Taylor.

The program committee consists of William “Billy” Davis, Jol A. Silversmith, Emileigh Hubbard, Joel Bello, Jason Engkjer, Robert Zimmerman, Pui C. Hong, and Miles C. Holden.

Finally, the 2023 Annual Conference will be in the West and specifically at Paradise Point (https://paradisepoint.com/) in San Diego, CA the week of April 25-30. The program chairs for the 2023 Annual Conference are Kristen M.J. Johnson and Stevan Baxter with a comic book theme as a nod to San Diego’s annual comic book conference. They have selected their committee which consists of Chris Cotter, Joelle Nelson, Justin Olsen, Peter Quinter, Bridgette Blitch, Cameron Roberts, Hillary Booth, Tom Martin, Matt Koch, Jason Orleans, Richard Grant, Beata Shapiro, Paul Mello, Chris Merrick, Clark Monroe and Greg Reed. I want to thank each program chair and each program committee member for your time and dedication to making TLA a preeminent organization.

I am looking forward to working with a dedicated and dynamic executive officer staff consisting of President-Elect (Committee

Oversight) Eric R. Benton, First Vice President (and TTL Editor) Katherine T. Garber, Second Vice President (Website) Louis AmatoGauci, Secretary/Treasurer Jeffrey M. Pincus and Immediate Past President (Pool side drinking) Steven M. Canty. I congratulate Jeff Pincus on his election to the ladder which is only appropriate since he is my annual Chicago Institute of Art date each January. I want to congratulate the new and old Representatives-At-Large who will serve during my term who include Peggy Smith Bush, Thomas C. Martin, Kristen M.J. Johnson, Christopher E. Cotter, Jeff Cox, Beth Anne Lashuk, Jason Orleans and Kim Stoll. Finally, I want to thank the Past Presidents who have agreed to be voting Past Presidents for me. I will rely heavily on them for guidance and counsel throughout the year and ask them to urge and demand me to be innovative and creative and to make TLA better than ever. Thank you to Greg Summy, Kathleen Jeffries, John Wilcox, Marc Blubaugh and Dirk Beckwith. I am excited to work with all of these wonderful people and to begin my term. I look forward to working hard to demonstrate that the trust placed in me is well deserved, Right Now!

TLA Mission Statement The Transportation Lawyers Association (“TLA”) is an independent bar association, comprised of in-house, government and private practice attorneys. Its members assist providers and commercial users of domestic and international logistics and transportation services, in all modes. TLA is dedicated to keeping its members ahead of the constant changes in the specialized legal environment governing all aspects of the supply chain and passenger travel. With commitment to excellence in continuing legal education, and a long tradition of collegiality and exchange of ideas, TLA is a collaborative resource for lawyers seeking to maximize the quality of the legal services they provide and enhance their professional lives.

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Association Business

TLA President Biography: Christopher M. Kelly Steffan Kelly

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hris and I went out to dinner recently and, as we sat down, an elderly couple next to us was getting up to leave. The man saw Chris and walked over to us. “You’re an attorney, aren’t you?” the man asked. Chris looked at him in surprise and said, “I am! How did you know?” It turns out the man was a 91-year-old psychiatrist who had worked for the FBI. He had profiled Chris in ten seconds! I wasn’t surprised that Chris apparently “looks” like an attorney. After all, when he was six years old, he and his friends stood at the end of a driveway and declared what they would do with their lives. Chris had confidently announced he would attend Notre Dame and then become a lawyer. He is a man who has always set goals and worked hard to achieve them.

Christopher Mark Kelly was born in January 1972 in Roswell, New Mexico—a town that wanted to be known for its ranching, oil and gas industries, but instead was famous for being the home of the 1947 UFO crash landing. The population of Roswell in 1970 was around 34,000 people, and has only grown to about 48,000 over the last fifty years. So, either people don’t want to move there, or the people who live there are getting abducted by aliens. Chris likes to joke that if the lights go out and you see him glowing, don’t worry. It’s perfectly normal for a Roswellian.

Chris is the fourth of five children born to Paul J. Kelly, Jr. and Ruth Ellen Dowling. He calls himself the “Forgotten Fourth” since he was often forgotten, misplaced or skipped over while growing up in his rambunctious family. He spent a lot of time trying to keep up with his older siblings. As a result, he tried harder, learned faster, took more risks and got in more trouble than the average kid. Chris was small, but he was scrappy and knew a lot of bad words. If he couldn’t fight his way out of something, he would use his colorful vocabulary to win his battles.

Chris lived in Roswell until he was 11 years old. Accordingly, Roswell in his mind will always be the place of his wonder years.

A place where it was Saturday morning all day long and the play continued until after sunset. Where he rode bikes with his gang of friends, played baseball, soccer and basketball, fought imaginary battles with trashcan lids and bamboo swords, and terrorized the cadets at the New Mexico Military Institute by throwing clods of dirt at their cars as they drove by. The furious cadets were the only ones willing to chase Chris and his friends, which only made things more exciting. Chris’ family was tight-knit because all of their relatives were on the East Coast. Chris’s father had moved the family from Long Island to Roswell in 1967, before Chris was born; and although the family of seven did trek across the country in their RV to see the relatives occasionally, they created their own special memories together in Roswell. Chris will always remember his Roswell street address, and every sidewalk crack, tree, yard and house on his block.

In 1983, the Kelly family moved to the foothills of Santa Fe, New Mexico. Moving from Roswell to Santa Fe was only a fourhour drive (not long in the West), but culturally it was like moving from Dallas, Texas to Madrid, Spain. Chris was transplanted from the ranching southwest to a place of Spanish blue bloods and tri-cultural intersection. He went from organized city blocks and a fifth-grade class at Washington Avenue Elementary where kids looked like him, to a city of winding one-way roads, walled adobe compounds and a sixth-grade class at E.J. Martinez Elementary where he was only one of three blond, blue-eyed kids in a class of 100. He might not have noticed this but for the fact that his new classmates enjoyed regularly pointing out his differences. Despite this, Chris adapted to Santa Fe and dove right in. He made life-long best friends, grew to love the culture, the art, the mountains, the sunsets and most especially the spicy Santa Fe cuisine.

Chris attended St. Michael’s Catholic School for 7th and 8th grade and then attended Santa Fe Public High School. Although he played high school sports, specifically soccer and golf (basketball was not an option for the 5’1” freshman), he fell in love with band.

He was selected for his high school’s elite Ambassador’s Concert Band, which allowed him to travel the world with his trombone. The band performed concerts in Beijing, Hong Kong, Sydney and Auckland. Chris paid his own way for the trips with summer job money, which his parents appreciated since they were paying for college and medical school tuition for his three older siblings.

In 1990, Chris enrolled at the University of Notre Dame. Two hours after moving into his dorm, he was stepping off with the “Band of the Fighting Irish.” Chris’s trombone continued to take him places while he worked toward a double major in Economics and Russian. He enjoyed all-expense-paid trips to Miami (1990 Orange Bowl), New Orleans (1991 Sugar Bowl) and Dallas (1992 Cotton Bowl). In his senior year, Chris gave up band so that he could be a Resident Assistant and prepare for law school.

In 1994, Chris enrolled at Wake Forest University School of Law. After his first year, he spent the summer in Wake’s study abroad

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program studying the “History of the Common Law” in London, and “Comparative Business Organizations” in Venice. After his second year of law school, Chris worked in the Brooklyn, New York, District Attorney’s Office’s criminal court division for six weeks and then in the organized crime division for six weeks. He was also on Wake Forest’s Law Review and a member of Wake’s Trial Clinic Program, where he worked for the Forsyth County Legal Aid Office, and the U.S. Public Defender’s Office in Greensboro, NC. The defining experience in law school for Chris, however, was meeting me (of course!) when he was a 2L and I was a 3L. Chris and I struck up a conversation at a Student Bar Association pool tournament. I mentioned that my friends and I were planning to get something to eat afterward and invited him to come along. After the tournament I asked him if he was ready to go eat. In the parking lot he asked if we should wait for my friends and I said, “Nope.” He still tells people I asked him out first, but in reality, I was just hungry. A year and one month later, after Mass on Thanksgiving morning, he asked me to marry him.

Chris graduated from law school in 1997 and received Wake Forest’s prestigious E. MacGruder Faris Memorial Award for Character, Leadership and Scholarship. That summer was busy—he took two bar exams (one in Raleigh, North Carolina and one in Columbia, South Carolina), moved to South Carolina, started his new job as an associate attorney at Gallivan, White & Boyd, P.A. in Greenville, South Carolina, and got married! We lived in Greenville, and welcomed our son Jack in 2001, and our daughter Elizabeth in 2003.

Chris has practiced 25 years with Gallivan, White & Boyd, a litigation firm with 65 lawyers in four offices located in Charlotte, North Carolina, Greenville, South Carolina, Columbia, South Carolina and Charleston, South Carolina. In his first year, Chris earned the nickname “Doogie” after a deposition in which he deposed a woman who afterward loudly announced “I think I was just deposed by Doogie Howser!” Chris worked to overcome his youthful appearance by always being prepared and putting in long hours. Having children also helped age him overnight. After making partner he served as the firm’s Commercial Transportation Team Leader, chaired the Associate Committee, and is currently a member of its four-person Executive Committee.

Chris has been blessed to practice with partners who are fantastic trial lawyers and who have given him the opportunity to handle large, interesting, complex cases over his career.

In 2011, the firm asked Chris to open the office’s litigation practice in Charlotte, North Carolina. In July, 2011 the South Carolina Kellys became the North Carolina Kellys. It wasn’t long before Chris had enough work to hire a paralegal, then an associate in November, and then in December to ask another partner to move up from Greenville to help with the workload. The Charlotte office was off and running. Currently, the office has 10 attorneys and 9 staff members, and continues to grow.

Chris’ family has also grown, or I should say “grown up.” Jack is currently a rising senior at the University of Notre Dame, and Elizabeth is a rising sophomore at Furman University. In the last year, Chris and I have become empty nesters, hit the big “5-0” together, and will celebrate 25 years of marriage this August.

Chris has always been active in the community—coaching his children in church league basketball and YMCA soccer, judging high school debates on weekends, serving as the President of Kiwanis and as President of his local Notre Dame Club. He is also a graduate of both Leadership Greenville and Leadership Charlotte, and he has been active in Catholic Education serving as Chair of the Mecklenburg Area Catholic Schools Foundation for many years. For a good portion of his career, the TLA has been a fixture for Chris, and his professional life has been marked by the annual events of the TLI meeting, the Chicago meeting and the Annual Meeting. Chris was welcomed warmly by more senior members of the TLA who took him under their wing, introduced him to other great attorneys, and helped make his experience in TLA meaningful and worthwhile.

The FBI psychiatrist who quickly profiled Chris at dinner might have been interested to know the results of a personality test Chris took at a Leadership Greenville retreat a few years ago. His greatest strengths were loyalty, responsibility and accountability.

I know he is committed to using his strengths in his role as President this year, and will encourage others to share their talents and strengths so that valuable TLA traditions will be preserved, and the organization will continue to grow and succeed.

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President’s Message

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aving recently attended my first in person conference in years, it proceeding involving the Canadian Pacific Railway and the Lac-Mégantic felt so good to see people again. There really is no replacement rail disaster, a session on the “Greening of Transportation”, a discussion for being able to embrace an old friend, or sit next to a new one, on the impact of COVID-19 on merger and acquisition deal trends in or move the conversation to a chic bar across the way. All of which North America, an overview of recent trends in insurance, presented cannot be done through a screen. Seeing the happy attendees at by key players in the insurance industry, as well presentations on cross TLA’s successful Annual Conference in Williamsburg, Virginia makes border trucking, marine and aviation. Our speakers are from across me very excited to welcome you all to CTLA’s Annual Conference and Canada, the US and Mexico. We are also tackling burnout in the legal AGM at The King Edward Hotel in Toronto, from October 13, 2022 to profession – which appears to be on the rise – our presenter will speak October 15, 2022. from personal experience and lead a discussion on how The CTLA took a hard hit over the past few years to improve the legal workplace.

(I know we are not alone). While we were not able In addition to our educational sessions, we are to gather together and network, we did manage to looking forward to the networking opportunities and achieve one of our other important goals – providing events. The King Eddy is conveniently located downexcellent legal education, focussed on transportation town, and is an easy walk to great restaurants, the issues, presented by practitioners experienced in their refurbished and recently reopened Massey Hall, as well field. Past President Heather Devine hosted the inauas theatre and sporting venues. For those of you who gural virtual Annual Conference and AGM in 2020 and are fans of Nomad with Carlton McCoy on CNN you Past President Jean-François Bilodeau organized our will know that Toronto has some of the most diverse successful second virtual conference in 2021. As we culinary experiences in any North American City (the finalize the plans for our upcoming in person conferToronto episode aired on May 29/22). Our Dine Around ence, I am heartened by the number of “cold calls” I evening, following our welcome cocktail reception, will have recently received from young lawyers wanting Carole McAfee Wallace be reflective of the diversity of Toronto’s restaurant to find out more about the CTLA, and transportation scene. Our Can-Am competition is being finalized, and law in general. They see the importance of developing the annual Banquet Dinner on Saturday, October 15, 2022 will include expertise in a certain area of the law, and that transportation law is the passing of the Chain of Office. much more diverse than they realized. These young lawyers are joining CTLA and I look forward to their contributions and their ideas for the Perhaps most importantly, I hope that in addition to seeing old future of our association, and to meeting them in person at our confer- friends again, we will get to know our new members and those in ence in October. the early stages of their career, and that when we gather in person in The educational sessions at this year’s conference will cover all October, we take time to reflect on CTLA’s role in the development of modes of transportation and some unique topics. This year’s confer- a strong transportation bar, and we think about how we can make our ence will include a presentation from those involved in the class action association even better.

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Editor’s Column

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Speaking of getting back together: In this edition of the s Eric Benton and I both practice law in Houston, he didn’t have to go far to pass the TTL editorial baton this year—he’s TTL, we celebrate and reflect on the 2022 Annual Conference in practically across the street from me, at least by Texas standards. Williamsburg, Virginia—where the past and the present quite literWhich is good for me (but perhaps not so good for him) in the ally came together for education, fellowship and fun in our first event I have questions—and I no doubt will. With Eric being one fully in-person annual conference since the pandemic. Melissa rung ahead of me on the TLA ladder and now President-Elect, I Richardson and Fred Marcinak, together with their program continually learn from him as I follow him on the climb. For his committee, put together a terrific and informative educational guidance, I thank him, and I sincerely hope he doesn’t take to program. I’m pleased to report that no attorneys or guests suffered blocking my calls and emails in the future. any harm from the Thursday night ax throwing (other than perhaps having sore arms) and, thanks to our fife and drum I am also delighted to be working this year escorts, no one got lost on the way to Shield’s Tavern with President Chris Kelly, who you will see from for the Saturday night dinner. There’s a recap of the his TLA President’s Biography is the the Energizer events, replete with photos, in this edition. Next up: Bunny of the legal profession. I marvel at his TLI in Boston. Beata Shapiro and Dan Sonneborn energy and enthusiasm, and look forward to his provide us with an overview of what to expect, so tenure as President of this organization. Louis mark your calendars and join us in Massachusetts in Amato-Gauci brings his style and charm to TLA’s November! website and social media duties as Second Vice President, and Jeff Pincus joins the executive Our featured articles in this edition of the TTL ladder as Secretary/Treasurer with his ever-present continue to reflect the current times in which we live: positivity and enthusiasm. Steve Canty, who has Dylan Jones and Ian Breneman provide a review of demonstrated calm and rock-steady leadership over COVID vaccination requirements for transportation the past year, “retires” to Past President status. Each workers engaged in international commerce, and Katherine T. Garber of these gentlemen is amazing in his own right, and Heather Devine and Paul Jon analyze the effects I am honored and privileged to serve with them. of supply chain interruptions on the Formula 1 and MotoGP racing circuits. Rocky Rogers highlights the Indiana With the passing of the editorial baton comes the annual changing of the TTL colors—from Eric’s blue and gold to my maroon Supreme Court’s recent opinion on the MCS 90 endorsement, J.W. and burnt orange. I am a native Texan, and I hold degrees from Taylor reports on the Florida Supreme Court’s ruling regarding the two largest schools in the state—Texas A&M University and the admissibility of medical damages, and Al Teel and Madeline The University of Texas.1 These schools were the fiercest of rivals in Hughes cover the current status of case law interpreting the phrase the Southwest Conference when I was a student at each, and they “in use” as used in the Locomotive Inspection Act. Thanks to all who have contributed to this edition of the TTL remained so until A&M’s move to the SEC in 2012 caused them to part ways. Now that Texas has announced its defection from the Big through their submission of written content and photographs. I 12 to the SEC, it appears they will be reuniting and reigniting their also want to extend a very special thanks to Rachel Celentano and rivalry; thus, their joinder here (at least in colors) seemed timely Jill Gabbert with Kellen, who have made my editorial debut easier than I anticipated. and appropriate.

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I have, for many years, referred to myself as “bi-collegiate,” given that I spent an equal amount of time at each university. My diehard Aggie family members, however, prefer the term “nuts,” as they just don’t get how a third-generation Aggie would even consider going to school in Austin. I have often tried to explain to them that my options for attending law school were limited at the time, as A&M had not yet acquired one. They don’t buy it.

TTL Call for Articles We are looking for more featured articles and/or case notes for upcoming issues. This is an opportunity for TLA and CTLA members to write on timely issues which will allow greater exposure among our memberships. This will give you nationwide recognition and is a great way to expand your networking abilities as part of a well-respected and widely read industry publication.

The submission deadline for the next publication is August 4, 2022.

Please direct any questions and submissions to TTL Editor Kathy Garber at KGarber@ClarkHill.com.

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CTLA

Editor’s Column We’re Back!

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t the publishing of this edition of the TTL, we will be more contribution in this issue of TTL highlight some of these issues and than halfway through 2022. With the removal of almost include articles by: all of the COVID-19 restrictions in North America, this summer (i) Ben Aberant and Nicole Deniset entitled “COVID-19: Case Law undoubtedly will be about good friends, family time, traveling Updates and Developments for Transportation Employers” and, don’t forget, good food! Several of CTLA’s board members which highlights developing case law around a transportation attended TLA’s Annual Conference in Williamsburg, Virginia, employer’s actions in the context of the pandemic; including Past President Jean-François Bilodeau. (ii) Jean-François Bilodeau entitled “Status It was Jean-François’ first time attending a TLA Report on the Successes in Using Foreign Annual Conference and he left wondering why he Ships to Lay Submarine Cables in Canada” hadn’t attended one before this year. I certainly which provides insight into the suitability issue understand his sentiments as my experience at the when applications to the use foreign vessels in Austin TLA Annual Conference in 2019 was positive, Canada are contested; and to say the least, educational and had me thanking (iii) Pui Hong and Marie Boyd entitled “Alberta my lucky stars that I transitioned from an insolCourt of Queen’s Bench Clarifies Carriers’ vency/collections practice to transportation.

Rights to Random Drug and Alcohol Testing” That year was also the first year I attended a CTLA which summarizes an Alberta court’s decision Annual Conference which was held in Winnipeg, about whether a provision in an employment Manitoba. While the attendees enjoyed the dine contract requiring an employee to submit to around and the beautiful Canadian Museum for random drug and alcohol testing is enforceable.

Pui C. Hong Human Rights, little did we know that that would be We at the CTLA hope that many of our U.S. the last in-person CTLA conference until 2022. Now, counterparts will join us in Toronto October 13, 2022 almost 3 years later, as we settle into familiar but to October 15, 2022 for some excellent educational slightly different routines, matters and issues that were set aside to deal with the fast-changing COVID-19 rules and regulations affect- sessions, fun networking opportunities and some friendly competiing the transportation industry, are now resurfacing. Our Canadian tion. We look forward to seeing old friends and connecting with new ones!

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TLA Website: www.translaw.org Members Only area: User Name: First initial + last name + the Zip code where you receive TLA mail, i.e., jbrown66061. (Canadian members—please note that your postal code may include a space which counts as a character.)

Password: translaw1 If you wish, you can personalize your user name and password using the ID & Password link in the members services area of the TLA website.

Are you receiving emails from TLA? If not, your spam blocker may be preventing you from receiving important updates about TLA events and developments in transportation law. To ensure that you will receive updates, be sure that your system will accept emails from TLA-info@kellencompany.com.

CTLA Website: www.ctla.ca User Name: Transport Members Only Password: ship Transportation Lawyers Association • Canadian Transport Lawyers Association • July 2022, Vol. 24, No. 1

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Secretary/Treasurer’s Report

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y the time you read this, summer will be in full swing. President Franklin D. Roosevelt. Within the space of less than a year Members of this Association will have just celebrated, in Corrigan had published a best-selling autobiography and inked a chronological order, La Fête nationale du Québec, Canada Day, movie deal with RKO Pictures, earning $75,000 for playing himself or Independence Day, marveled at the fireworks displays and in The Flying Irishman. savored the opportunity to socialize outdoors. Some of you will Corrigan never deviated from his version of events, but it have abandoned your home offices in favor of a cottage or a cabin is widely believed that he purposely sought to sidestep aviation by a lake, while others are jetting around the world in an effort to authorities to achieve his dream of a transatlantic flight. Now, he did make up for all the lost travel opportunities we have experienced fly across the Atlantic at a time when this was only attempted by the over the past few years. very bravest and best aviators of the day – famous fliIf you fall into the latter category, as you sit ers like Charles Lindbergh and Amelia Earhart – and back, relax and enjoy your in-flight hospitality for he did it with no funding, with a leaky fuel tank and the journey to or from wherever you are visiting, no radio. But Corrigan set out on his journey in such spare a thought for Wrong Way Corrigan, whose an unorthodox way that he is hardly ever named trans-Atlantic misadventure is commemorated by among the leading pioneers in aviation history. He some aviation museums during the month of July. is however, often referred to in jest.

Clyde Groce (“Douglas”) Corrigan was an IrishSo there is a right way and a wrong way of doing American stunt pilot from Galveston, Texas. In 1938, things. he requested permission to fly from New York to And speaking of the right way of doing things, Ireland, as an homage to his childhood hero, Charles I would like to take this opportunity to congratulate Lindbergh. The request was denied by the Bureau Steve Canty for a great year at the helm of TLA’s of Air Commerce – twice – on the grounds that his Executive Committee. His attention to detail and single-engine aircraft, a rebuilt and heavily modiLouis Amato-Gauci fiscal prudence made my job as quaestor so much fied 1929 Curtiss Robin named Sunshine, might easier.

I would also like to thank all members who did the right not survive the journey. On July 17, 1938, the disappointed pilot told officials he was heading back home to Long Beach, California. thing by paying their dues in a timely manner, allowing us to reach Shortly after taking off from Floyd Bennett Memorial Airport in our budget for membership revenues by early March. And I would Brooklyn, New York, Corrigan encountered thick cloud cover, which like to thank my good friend, Jeff Pincus, for doing the right thing he cited, along with his malfunctioning 20-year old compass, as by saying “yes” when the Nominating Committee put his name the causes of some serious navigational errors. He claimed that forward to serve as your new Secretary/Treasurer. I am delighted when he finally dropped below the clouds, he was surprised to to hand over all minute-taking and financial reporting responsibilifind himself over water, but he continued on his journey and, upon ties to him. No doubt he, and all of you, will be happy to hear that landing some 28 hours later, discovered that he was in Baldonnel, the Association continues to be on solid financial ground. Your Executive Committee will make every effort to keep it that way. near Dublin, Ireland.

As of April 30, 2022, the association had cash assets of Corrigan insisted that it was all an honest mistake, but could not explain why he had loaded 40 hours’ worth of fuel into his $588,437, of which $135,967 constituted restricted funds. Of the tiny aircraft. Aviation officials reportedly sent a 600-word telegram $588,437, current assets of $123,717 are in certificates of deposit listing all the regulations broken by the unexpected trans-Atlantic while the remaining is in business checking or money market flight. With his pilot certificate suspended for 14 days, Corrigan accounts. The association began the fiscal year with accumulated was compelled to return home to the United States on board the net assets of $285,763 and year-to-date gain is ($11,025). Total SS Manhattan, with his aircraft stored below deck. His arrival in year-to-date revenue$356,772 which is 58% of the 2022 budgeted New York was met with a huge celebration, with ticker-tape parades amount. Total year-to-date expenses are $359,248 which is 57% of there and in Chicago, and a trip to the White House to meet the 2022 budgeted amount.

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The 55th Transportation Law Institute Friday, November 18, 2022 Fairmont Copley Plaza – Boston, MA Beata Shapiro and Dan Sonneborn, 2022 TLI Program Chairs

The Transportation Lawyers Association‘s 55th Transportation Law Institute is scheduled for Friday, November 18 at the Fairmont Copley Plaza in Boston, MA. The educational program, with a theme of Massachusetts authors and literature, will cover aspects of cybersecurity in the transportation and logistics arena, the emerging role of technology in defending casualty claims, a comparison of approaches to Federal transportation safety regulation by the FMCSA, FAA, and NTSB, an update on international trade, developing enhancing and maintaining a diverse, equitable, and inclusive workplace, and how to best plan and prepare for world events that disrupt the global supply chain. Each panel will provide both legal and industry perspectives on the topics covered.

The TLA has contracted a room rate of $229* per night for our members at the Fairmont Copley Plaza (*plus applicable taxes and fees). Deadline to book your reservations and take advantage of this room rate is Oct. 21, 2022.

Make your reservations online today.

Splendor and Old-World opulence mingle at our 1912 Boston landmark with a prominent history worthy of its location: the birthplace of the American Revolution. Stately and storied with a remarkable legacy, Boston’s 109-year-old grande dame is just as tasteful and current as ever.

The site of myriad presidential dinners and globe-changing events, our four-diamond hotel’s one-of-a-kind rooms and extravagant celebration venues have served as the backdrop of special memories for a century and counting. Set your milestone, meeting or grand-scale gala amid the gilded ceilings, crystal chandeliers and marble pillars.

The best of Boston is just outside the door: from world-class museums, exclusive boutiques and historic sites to sporting events, landscaped gardens and leisurely strolls along the river. We are centrally located in the mansion-lined Back Bay neighborhood and city’s top address for life’s big moments. Expect impeccable service, yes, but always personal, genuine and uniquely Boston.

Who Can Attend?

TLI is open to attorneys with an interest in transportation law, practice, or procedure.

Registration

The registration fee for the TLI includes attendance at the program sessions, the comprehensive program, materials, continental breakfast on Friday morning, lunch on Friday, refreshments at each break, and the Friday evening reception.

Pre-Registration

Register prior to November 4, 2022 Registration link will be provided closer to print date Available presentations and pre-registered attendee list will be distributed online approximately one week prior to the TLI and at the event upon registration/check-in Friday morning.

Activities

Thursday Evening Reception and Dine Around A welcome reception will be held at the Fairmont Copley Plaza to kick off the TLI and we will be arranging a Dine Around on Thursday evening following the welcome reception. Further information will be distributed to registered attendees as we approach the event.

Friday Evening Dine Around For those of you who plan to stay into the weekend, we will be arranging a Dine Around on Friday evening. Further information will be distributed to registered attendees as we approach the event.

Saturday Event

This event is in the planning stages, and more information will be available closer to the TLI.

Continuing Legal Education (CLE)

Accreditation will be requested for the 55th Transportation Law

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Association Business Institute from every state from which participants indicate they will require CLE credit. As you are likely aware, each state has its own rules and regulations regarding program approval and attendance reporting, as well as its own definition of CLE. Certificates of attendance will be available on-site.

Questions

Questions pertaining to the program agenda, registration, or continuing legal education accreditation should be directed to the TLA Executive Office at TLA-info@kellencompany.com.

Program agenda

1. Infinite Jest: The Impact of Evolving Driving Technology in Personal Injury Claims. Moderator: Katherine Tenzinger, Partner, Weber Gallagher Simpson Stapleton Fires & Newby LLP, Philadelphia, Pennsylvania. Panelists: Gene Zipperle, Partner, Ward, Hocker & Thornton, PLLC, Louisville, Kentucky; John Zolock, Ph.D., P.E., Managing Engineer, Exponent, Natick, Massachusetts. The rise of automation and innovation has transformed the industry.

However, with increased technology comes new challenges in defending personal injury lawsuits. This panel will address causes of action brought against manufacturers and distributors of new technology and how these claims may differ from “traditional” products liability claims.

2. Gone, Baby, Gone: How to Avoid and Mitigate Losses From a Cybersecurity Breach. Moderator: Jeff Simmons, Chief Legal Officer, GlobalTranz, Scottsdale, Arizona. Panelists: Helen Schweitz, Partner, Benesch, Friedlander, Coplan and Aronoff LLP, Chicago, Illinois; Heather Devine, Partner, Alexander Holburn Beaudin + Lang LLP, Toronto, Ontario; Corey White, CISSP, CISM, NSA-IAM, Chief Experience Officer, Cyvatar, Irvine, California. Given the increasing role interconnected technology plays in the transportation industry in moving goods, quickly, safely, and securely, the rise of cyberattacks must be taken seriously. The industry as a whole must focus on securely protecting computer systems and networks, and this panel will discuss how to best prepare to avoid a devastating cyberattack.

3. How Thoroughly Departmental: Comparing Approaches to Federal Transportation Safety Regulation by FMCSA, FRA and NTSB. Moderator: Mark Andrews, Senior Counsel, Clark Hill PLC, Washington, D.C. Panelists: Tom Tobin, Partner, Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, New York; Andrew Boyle, Co-President, Boyle Transportation, Billerica, Massachusetts; John Fiorilla, Partner, Dyer & Peterson, P.C., Mr. Laurel, New Jersey. The FMCSA, FAA or FRA (depending on final panelist), and NTSB all have a specific role to play with respect to Federal safety regulation. This panel will review the approaches taken by each agency, and the similarities and differences to expect when engaged with the agencies.

4. Make Way for Ducklings: Developing, Enhancing and Maintaining a Diverse, Equitable and Inclusive Workplace.

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Moderator: Kathleen Jeffries, Partner, Scopelitis, Garvin, Light, Hanson, & Feary, LLC, Pasadena, California.

Panelists: Pui Hong, Senior Legal Counsel, Trimac Transportation, Calgary, Alberta; Alexander Karcher, Of Counsel, Roetzel & Andress, Columbus, Ohio; Angela Russell, Managing Partner, Baltimore Office, Wilson Elser Moskowitz Edelman & Dicker, LLP, Baltimore, Maryland.

The Diversity, Equity, and Inclusion Committee is pleased to present a panel that focuses on developing, enhancing, and maintaining a diverse, equitable, and inclusive workplace.

Speakers will provide attendees with details and examples in creating and preserving a welcoming workplace for all employees.

5. A Descent into the Maelström?: Trade Policy Outlook in an Era of Global Turmoil. Moderator: Evelyn Suarez, Principal, Suarez Law Firm, Washington, D.C. Panelists: Christine McDaniel, Senior Research Fellow, Mercatus Center at George Mason University, Arlington, Virginia; Alejandro García Seimandi, Partner, García Seimandi y Asociados, S.C., Seimandi, Mexico City, Mexico; Louis Amato-Gauci, Partner, Miller Thomson LLP, Toronto, Ontario. At the 2021 Chicago Regional Seminar, the panelists summarized the state of global trade in the final days of the Trump administration, and speculated about the trade policy that might be expected from President-elect Biden. Looking into their crystal balls, our panelists concluded that a return to the pre-2016 approach to global trade was unlikely, although US trade policy would become far less combative, with the incoming administration focusing primarily on domestic matters and possibly alternating between protectionism and a more open stance on trade, in an effort to be all things to all people. Armed with the benefit of hindsight, this panel will now revisit those predictions, and comment on the cause and effect of the supply chain crisis, the war in Ukraine, and the many other unforeseen developments that have transpired over the past two years.

6. The Perfect Storm: How the Transportation Industry will Respond to Global Events and Uncertainty. Moderator: Daniel Sonneborn, Director, Preti Flaherty Beliveau & Pachios, LLP, Boston, Massachusetts. Panelists: Lisa Stephenson, General Counsel, CRST The Transportation Solution, Inc., Cedar Rapids, Iowa; Lori Polsuns, Traffic Tech, Inc., Montreal Quebec; David Farrell, Jr., Farrell Smith O’Connell Aarsheim Aprans, LLP, Boston, Massachusetts, Robert J. Ernest, Senior Principal Legal Counsel Transportation & Logistics, Medtronic, Minneapolis, Minnesota. The global supply chain has been disrupted by worldwide events over the past few years. No one is immune from the effects of world issues, and this panel will focus on the future of the transportation industry and how world events impact it, including the sudden closing of ports due to COVID19 zero tolerance policies, acts of war in making the movement of cargo impossible, how insurance claims are being reviewed, and how all transportation-related entities can best protect themselves from future, uncertain events.

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The 2022 Annual TLA Conference Williamsburg, Virginia Fred Marcinak and Melissa Richardson, Program Committee Co-Chairs

TLA and CTLA members gathered in Williamsburg, Virginia, for this year’s Annual Conference. Historic Williamsburg Lodge provided a wonderful venue for the educational meetings and activities, complete with a musket reception and a fife and drum sendoff.

The conference began with two days of golf, chaired by Charlie Riley and Allen Jones. On Tuesday, the Golden Horseshoe-Gold Course was the chosen venue, and on Wednesday, it was the Golden Horseshoe-Green Course. First place in Tuesday’s annual Train Wreck game went to Matt Austin, and the first place team for Wednesday’s scramble event went to Dan Larson, Jim Griffin, Sierra Chamberlain and Susan Griffin. Don Vogel earned the Ugly Jacket as a result of his golfing mastery or lack thereof.

On Wednesday, the TLA officers hosted a New Member and First Time Attendee Orientation immediately prior to the welcome reception, giving them an opportunity to meet the officers and each other, and learn about TLA and what to expect during the conference. The Wednesday evening welcome reception venue was held on the Virginia Lawn and featured a musketry demonstration.

President Steve Canty welcomed everyone on Thursday for the official start of the conference. CTLA President Carole McAfee Wallace made a pitch for the CTLA annual conference in Toronto.

As the Educational Program chairs, we kicked off the education program which started the three-day series of panel discussions and committee meetings. The Educational Committee, including Paul Mello, Jaclyne Reive, Jeff Cox, Marshal Pitchford, Peter Quinter, Katherine Vaughn, Greg Summy, Kristen Johnson, Stephen Dennis, and Steve Block, planned and implemented an innovative and informative program that integrated Canadian, Mexican, in-house, and industry perspectives into the panel discussions. The presentations covered a variety of topics, including maritime law, FAAAA preemption, mock jury trials/focus groups, ethics, buying and selling aircraft, supply chain/port congestion, buying and selling a trucking company, California and the independent contractor model, and preparing company witnesses for testimony. TLA’s committees met on Thursday and Friday afternoons, providing multiple opportunities for additional discussions of current issues and presentations by members.

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The TLA annual business meeting was held on Thursday afternoon. By operation of the Association’s by-laws, Chris Kelly succeeded to the position of President, Eric Benton was elected President-Elect, Kathy Garber was elected First Vice President, Louis Amato-Gauci was elected Second Vice President, and Jeff Pincus was elected Secretary/Treasurer. Additionally, Peggy Smith Bush, Chris Cotter, Kristen Johnson and Thomas Martin were elected to the Executive Committee as representatives-at-large.

Jean-Francois Bilodeau was elected to the Executive Committee as the CTLA representative.

This year’s Tennis Tournament was chaired by Beth Anne Lashuk.Beth and Marcy Reeb got their skills honed during a tennis clinic with Williamsburg pro Hoy! The Thursday evening event involved an axe-throwing competition, which was a first for TLA. CTLA members, having honed their wilderness skills, dominated the competition. Now Past President Steve Canty demonstrated why he should continue his legal career instead of working to become an “axpert.”

Friday evening began with a reception followed by the annual banquet. The dress code was “black tie optional” and the food and beverages were excellent. Steve Canty was honored and praised for his outstanding year as President, Chris Kelly was congratulated on becoming President, Eric Benton was presented with a bound volume of the TTLs published under his watch as Editor, and TLA’s officers were all thanked for their service. Distinguished Service Awards were presented to Jeff Pincus and Bill Pentecost.

TLA’s highest award, the Lifetime Service Award, was presented to Pat McMonigle. These three gentlemen have openly displayed consistent, meaningful assistance to the TLA and, as such, were supremely worthy of the honors bestowed upon them.

The annual Fun Run, held on Saturday morning, was overseen

by Stevan Baxter.The winner of the run was Ashley Winsky, one of the three winners to cross the finish line together. Stevan Baxter also was presented with the “Ironman Award” the night before; this award was given to him as a result of his ongoing involvement in TLA and, specifically, for his continuous involvement in all parts of this particular TLA conference.

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Final festivities were held at the at Shield’s Tavern on Saturday evening, which provided a relaxed environment on the final evening of the conference.A fife and drum corps escorted the attendees from the Williamsburg Lodge to the tavern.

Congratulations to Steve for an excellent and fun- filled

conference! Special thanks go to Roger Watts for his gracious hosting of the hospitality suite, and to Jill Gabbert and Rebecca Pierucci of Kellen for their invaluable assistance in organizing the conference educational events and activities, including adapting to last-minute changes that always arise.

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TLA 2022 Annual Conference Pictorial

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TLA 2022 Annual Conference Pictorial

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TLA 2022 Annual Conference Pictorial

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2022 TLA Lifetime Achievement Award Presented to Patrick K. McMonigle Presentation by John Wilcox

Good evening, everyone!

I’m thrilled to have the privilege of presenting this year’s Lifetime Achievement Award. As Dick Westley stated last year, the Lifetime Achievement Award is TLA’s highest honor and gives special recognition to a member who has devoted so much of his or her time, energy and talent to the organization, not just once or twice but repeatedly over a long period of time. The Lifetime Achievement Award is TLA’s version

of the Hall of Fame.

As with the Distinguished Service Awards, it is a TLA tradition for the presenter to give clues about the recipient before revealing his or her identity. I will follow that tradition, even though my presence on the stage is a pretty strong hint as to who the recipient is.

Okay, where to start? How about the beginning. This year’s recipient is the youngest child of Olaf and Helen and was born and raised in a small town in Missouri which is known far and wide as the “Corn Cob Pipe Capital of the World.” Who knew? After growing up and graduating from high school, this year’s recipient went to college in another small town in Missouri. This one is known as the “City of Roses.” The recipient was a Sigma Chi and his alma mater was also attended by such luminaries as Rush Limbaugh and Cedric The Entertainer. As an aside, Cedric graduated, Rush did not.

After graduating with a degree in secondary education, the recipient wasn’t much interested in teaching and somehow resisted the allure of the corn cob pipe industry, moving to Houston, Texas to sell reinforced sheet plastic to the construction industry. After a year

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or so in the workplace, he returned to Missouri to attend law school, this time in the “City of Fountains” at the University of Missouri— Kansas City. During his time in law school, a local transportation law firm was desperate for an infielder for its Lawyer League softball team. Given this, our recipient was hired by the firm as a law clerk in 1976, and to date, he’s never left.

This year’s recipient quickly established that he offered more to the firm than his ability to turn a double play. He has gone on to have a distinguished legal career and is widely considered one of the Midwest’s premier transportation attorneys and litigators.

As far as the TLA is concerned, this year’s recipient has been awarded the Distinguished Service Award, the Ugly Jacket, and though he claims otherwise, he is most definitely a “Bullshipper.”

He has written for the TTL and presented at numerous conferences.

Behind the scenes, he has been a strong presence and a friend and mentor to many. He served this organization on the officer ladder and the Executive Committee. As TLA President, he put on the extremely successful 2012 Annual Conference in Naples, Florida and was instrumental in talking the ‘powers-that-be’ into holding the 2010 TLI in Kansas City, which culminated in an epic Saturday night event at Knuckleheads. For those who are unfamiliar, Knuckleheads is a local bar and honkytonk located in a part of town that at that time, folks from out of town wouldn’t go…at least not voluntarily.

This year’s recipient is married to Jeanne and they are the proud parents of two adult sons, Mitch and Ryan. They have two grandchildren and two more on the way. Pat is now the third Lifetime Achievement Award winner from that local transportation firm now known as Dysart Taylor Cotter McMonigle & Brumitt.

Congratulations to my law partner, mentor and dear friend, this year’s Lifetime Achievement Award winner, Pat McMonigle!

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2022 TLA Distinguished Service Award Presented to William B. Pentecost, Jr. Presentation by Frank C. Botta

I am honored to present to you one of the 2022 Distinguished Award Recipients who has worked long and hard for the TLA, involved themselves in many tasks, served on several conference committees, has acted in leadership positions, chaired and co-chaired Committees, has been a Representative-at-Large to the Executive Committee, and has been a member of the TLA for the last 12 years.

You have enjoyed reading articles in the TTL that appeared in the February 2010, July 2012, October 2015, April 2016, December 2017, February 2019, and October 2019 editions that this person has either authored or co-authored.

One trait that you initially guessed is somewhat accurate in that this person has a hard time making commitments, and at times is known to eat like a horse.

Our 2022 Distinguished Service Award winner has co-chaired the Chicago Regional Boot Camp and has co-chaired the Chicago Regional Conference.

The college that this year’s recipient attended had the following alumni that hail from this institution, from which our recipient graduated in 1992: 1. Patrick Kennedy; 2. Frank Caprio; 3. Peter Farrelly; 4. Lenny Wilkens; 5. Coach John Thompson; 6. Coach Richard Pitino; 7. Former Chief Justice of the Rhode Island Supreme Court, Joseph Bevilaqua, Sr.; 8. Former Mayor of Boston- Raymond Flynn; and 9. Many hockey players.

Our recipient is from the Midwest. Our recipient participated in his law school’s Moot Court and Law Review, and was first in his class. Our recipient is one who always has a smile on his face and

has served as the Chair of the Casualty Committee (2016-2018) and as the Motor Carrier Committee Co-Chair (2018-present).

The recipient of this years Distinguished Services Award is a very dear and close friend of mine and a former law firm partner who first attended his first TLA Annual Conference in 2010 in my stead when my son was born.

Bill Pentecost received a Bachelor of Science in Accounting from Providence College in 1992 and graduated first in his class from Duquesne Law School in 1996. Bill served in the military and rose to the rank of Lieutenant Colonel after serving from 1987 to 2019 (32 years).

When Bill was in the military, he was required to participate in regular physical testing and examinations to continue his military commitments. There were occasions when Bill would raise his concerns of having to successfully satisfy and pass the physical examination. Now, Bill is the only person that I know who was enlisted in the armed forces and served in the military for 32 years and was never called to duty. During this period of time there has been 1. Operation Just Cause December 1989 in Panama; 2. Persian Gulf War (1990-1991); 3. Operation Enduring Freedom in Afghanistan and Pakistan (2001-2014); 4. 2015 Operation Freedom’s Sentinel in January 2015; 5. Mid- 2002 troops deployed to Kuwait; 6. Bosnian War (2003-2011); 7.

Yemen Conflict (2014- recent); and

8. Global Coalition to Defeat ISIS (2014 to present).

There have been hundreds of thousands of military personnel who have been called to duty during 1987-2019, yet Lieutenant Colonel Bill Pentecost was not one of them.

I don’t know if he was lucky, or we were lucky, but he is the lucky and deserving recipient of this year’s 2022 Distinguished Service Award.

Congratulations Bill, my friend.

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Association Business

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Association Business

2022 TLA Distinguished Service Award Presented to Jeffrey M. Pincus Presentation by Eric R. Benton

It is my honor to present the next Distinguished Service Award.

As most of you know, this is the Transportation Lawyers Association’s second highest award given to that member that has demonstrated service above and beyond.

This year’s recipient certainly falls within this category.Before I tell you about their achievements and labor on behalf of the Transportation Lawyers Association, let me first introduce you to some noteworthy observations about this member. Where do I start— Like so many members, this member went to both undergrad and law school in their home state.Neither school had a particularly good or, at least, a national collegiate athletic team.In fact, one of them even dropped football as a sport.Maybe that accounts for this member’s selection of pro teams; especially baseball that has gone through some rough periods lately.

After law school, this member went into the District Attorney’s office where they earned their chops in the D.A.’s office trying criminal cases.This member tried to parlay that knowledge into private practice trying anti-fraud cases.This background, somehow, parlayed then into transportation??A career move that brings us here tonight, and as you will find out shortly was to our collective benefit as we have received the fruits of their labor on behalf of the TLA. Before I go any further though, let me tell you a little more about our recipient outside of TLA. This member practices in a law firm and at one time worked

with their spouse, who also is an attorney. Their training in antifraud must have served them well as they married someone well-qualified to cook the books.Eventually, however, the spouse left for more dough.Our member will quickly tell you that their spouse was the one that pursued them, but I believe that must be some half-baked idea that the spouse would never confirm.

Following the recipe for a successful marriage, the recipient and their spouse have two grown children.Surrounded by the member’s well-known sarcasm and mockery, you would be surprised the children turned out as well as they did.

But I am sure our recipient is a great parent that allows the kids to sleep in, because our member can’t harass them for being late—because being late is almost a source of pride to this member.

For Pete’s sake, this member is known to hang out in a bar every December for the entire day.Not just any bar, it must be the oldest bar around from which our recipient and buddies contemplate the “Gift of the Magi.”

By now I am pretty sure our recipient now knows who I am talking about, so let me finish telling you what a tremendous body of work they have done for our organization.

• Representative at Large, 2014-2016 • Committee Chair, 2021-present • Annual Conference Co-Chair • Boot Camp Chair • Twice published in The Transportation Lawyer • And elected yesterday to serve as your next Secretary/ Treasurer.

It my privilege to present the Distinguished Service Award to Jeff Pincus.

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TLA

TLA Leadership

TLA 2022-2023 Officers

Christopher M. Kelly President

Eric R. Benton President-Elect

Katherine T. Garber First Vice President

Louis Amato-Gauci Second Vice President

Jeffrey M. Pincus Secretary/Treasurer

Steven M. Canty Immediate Past President

TLA

2022-2023 TLA Committee Chairs PRACTICE DIVISION

President-Elect Eric R. Benton, Officer in Charge Subject Area Committees Alternative Dispute Resolution ...............................................................................................................................................................Co-Chair: Daniel L. Fulkerson Mayer LLP, 2900 North Loop W., Ste. 500, Houston, TX 77092 Phone: (713) 868-5560 E-mail: dfulkerson@mayerllp.com .......................................................................................................................................................................................................Co-Chair: John C. Lane Law Offices of John C. Lane, 48 Woodport Rd., Ste. 1, Sparta, NJ 07871 Phone: (973) 512-3244 E-mail: jclane@jclane.com

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TLA Leadership Antitrust and Unfair Trade Practices...........................................................................................................................................................Co-Chair: Andrew M. Danas Grove, Jaskiewicz & Cobert, 1025 Connecticut Ave., N.W., Suite 1000, Washington, DC 20036 Phone: (202) 416-0219 Email: adanas@gjcobert.com ............................................................................................................................................................................................... Co-Chair: Jol A. Silversmith KMA Zuckert, 888 17th Street, NW, Washington DC 20006 Phone: (202) 973-7918 Email: jsilversmith@kmazuckert.com ......................................................................................................................................................................................... Co-Chair: Jeremy R. Handschuh Mitchell-Handschuh Law Group, 3390 Peachtree Rd., NE, Ste. 520, Atlanta, GA 30326 Phone: (404) 262-9488 Email: jeremy@m-hlawgroup.com ..................................................................................................................................................................................Emeritus Chair: Michael M. Spurlock Beery & Spurlock Co., LPA, 275 E. State St., Columbus, OH 43215-4330 Phone: (614) 228-8575 Email: mspurlock@BeerySpurlock.com Bankruptcy and Creditors’ Rights.................................................................................................................................................................... Chair: Rick A. Steinberg Price, Meese, Shulman & D’Arminio, P.C., 50 Tice Blvd., Ste. 380, Woodcliff Lake, NJ 07677 Phone: (201) 391-3737 Email: rsteinberg@pricemeese.com Brokerage, Logistics and E-Commerce.........................................................................................................................................................Co- Chair: Daniel Sbanotto Transplace, 509 Enterprise Dr., Lowell, AR 72745 Phone: (479) 770-7267 Email: daniel.sbanotto@transplace.com ....................................................................................................................................................................................................Co-Chair: Mark Thornton Skoubye Nielson & Johansen, 999 E. Murray Holladay Rd., Ste. 200, Salt Lake City, UT 84117 Phone: (801) 365-1030 Email: mark@snjlegal.com Casualty Litigation ................................................................................................................................................................................................ Chair: Mark Barber Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., 3414 Peachtree Rd., NE, Atlanta, GA 30326 Phone: (404) 443-6713 Email: mbarber@bakerdonelson.com ....................................................................................................................................................................................Co- Vice Chair: Jonathan Abramson Kissinger & Fellman, P.C., 3773 Cherry Creek North Dr.,Ptarmigan Pl., Ste. 900, Denver, CO 80209 Phone: (303) 320-6100 Email: jonathan@kandf.com ........................................................................................................................................................................................... Co-Vice Chair: Michael J. Judy Dysart Taylor Cotter McMonigle & Montemore, P.C., 4420 Madison Ave., Suite 200, Kansas City, MO 65111 Phone: (816) 931-2700 Email: mjudy@dysarttaylor.com ............................................................................................................................................................................................. Emeritus Chair: David B. Hall Wilson Elser Moskowitz Edelman & Dicker LLP 1500 Urban Center Drive, Suite 450, Vestavia Hills, AL 35242 Phone: (205) 572-1462 Email: david.hall@wilsonelser.com Commercial and Business Litigation.....................................................................................................................................................................Chair: Curtis Cornett Cors & Bassett, PNC Center, 201 E. Fifth St., Suite 900, Cincinnati, OH 45202 Phone: (513) 852-8226 Email: clc@corsbassett.com .......................................................................................................................................................................................Vice Chair: Jeremy R. Handschuh Mitchell-Handschuh Law Group, 3390 Peachtree Rd., NE, Ste. 520, Atlanta, GA 30326 Phone: (404) 262-9488 Email: jeremy@m-hlawgroup.com​ ............................................................................................................................................................................................Emeritus Chair: Scott D. Carey Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., 211 Commerce St., Commerce Ctr., Ste. 800, Nashville, TN 37201 Phone: (615) 726-7379 Email: scarey@bakerdonelson.com Federal Regulations..................................................................................................................................................................................... Co-Chair: Henry E. Seaton Seaton & Husk, 5312 Otter Creek Ct., Brentwood, TN 37027 Phone: (703) 573-0700 Email: heseaton@aol.com .................................................................................................................................................................................................Co-Chair: Mark J. Andrews Clark Hill PLC, 1001 Pennsylvania Avenue, NW, Suite 1300 South, Washington, DC 20004 Phone: (202) 552-2352 Email: Mandrews@clarkhill.com ..................................................................................................................................................................................................Co-Chair: Patrick E. Foppe Lashly & Baer, PC, 714 Locust Street, St. Louis, MO 63101-1699 Phone: (314) 621-2939 Email: pfoppe@lashlybaer.com

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TLA Leadership

Freight Claims........................................................................................................................................................................................ Co-Chair: C. Fredric Marcinak Moseley Marcinak Law Group LLP, P.O. Box 26148, Greenville, SC 29616 Phone: (864) 248-6027 E-mail: fred.marcinak@momarlaw.com ..................................................................................................................................................................................................... Co-Chair: Beata Shapiro Wilson Elser Moskowitz Edelman & Dicker, LLP, 1010 Washington Blvd., Stamford, CT 06901 Phone: (203) 388-9100 Email: beata.shapiro@wilsonelser.com .....................................................................................................................................................................................................Co-Chair: Jason Orleans Orleans Canty Novy, LLC, 65 E. Wacker Place, Ste. 1220, Chicago, IL 60601 Phone: (847) 625-8200 Email: jorleans@ocnlaw.com International Trade and Transportation ........................................................................................................................................................... Co-Chair: Peter Quinter Gunster, 600 Brickell Avenue, Ste. 3500, Miami, FL 33131 Phone: (305) 376-6016 Email: PQuinter@gunster.com ..................................................................................................................................................................................................Co-Chair: Kurt B. Gerstner Dentons Lee, 14F Poongsan Bldg., 23 Chungjeongro, Seodaemun-gu, Seoul 120-013 Phone: 82-2-2262-6078 E-mail: kurt.gerstner@dentons.com Labor and Human Resources.................................................................................................................................................................................Chair: Paul B. Mello Hanson Bridgett LLP, 1676 N. California Blvd., Ste. 620, Walnut Creek, CA 94596 Phone: (925) 746-8460 Email: pmello@hansonbridgett.com ......................................................................................................................................................................................... Co-Vice Chair: Caroline D. Pratt Scopelitis, Garvin, Light, Hanson & Feary, PLC, 30 W. Monroe St., Suite 1600, Chicago, IL 60603 Phone: (312) 255-7200 Email: cpratt@scopelitis.com .......................................................................................................................................................................................Co-Vice Chair: Matthew D. Austin Austin Legal, LLC, 715 Shawan Falls Drive #800, Columbus, OH 43017 Phone: (614) 843-3042 E-mail: Matt@MattAustinLaborLaw.com Modal Committees Admiralty and Maritime Transportation...............................................................................................................................................................Chair: Dustin M. Paul Vandeventer Black LLP, 101 W. Main Street, Suite 500, Norfolk, VA 23510 Phone: (757) 446-8665 E-mail: dpaul@vanblacklaw.com Aviation ........................................................................................................................................................................................................Chair: Heather C. Devine Alexander, Holburn, Beaudin + Lang LLP, 2700 – 161 Bay Street, Toronto, ON M5J 2S1 Phone: (416) 572-2365 Email: hdevine@AHBL.CA ..................................................................................................................................................................................................... Vice Chair: Callie Castillo Lane Powell PC, 1420 Fifth Avenue, Suite 4200, Seattle, WA 98111 Phone: (206) 584-7366 Email: castilloc@lanepowell.com Motor Carrier Transportation.........................................................................................................................................................................................Chair: William Pentecost Cipriani & Werner, 650 Washington Road, Ste. 700, Pittsburgh, PA 15228 Phone: (412) 254-9293 E-mail: wpentecost@c-wlaw.com ...................................................................................................................................................................................... Co-Vice Chair: Bridgette M. Blitch Blitch Westley, S.C., 9100 Conroy Windermere Rd., Ste. 200, Windermere, FL 34786 Phone: (407) 574-2835 Email: bblitch@bwesq.com ......................................................................................................................................................................................Co-Vice Chair: Melissa Richardson Walters Meadows Richardson PLLC, 771 Corporate Dr., Ste. 900, Lexington, KY 40503 Phone: (859) 219-9090 E-mail: melissa@WaltersRichardson.com Rail Transportation.............................................................................................................................................................................................................. Chair: Jameson Rice Holland &Knight, 50 North Laura Street, Suite 3900, Jacksonville, FL 32202 Phone: (904) 798-7371 Email: jameson.rice@hklaw.com

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TLA Leadership Membership & Administrative Committees Constitution and Bylaws...................................................................................................................................................................................... Chair: Mark J. Andrews 1001 Pennsylvania Avenue, NW, Suite 1300 South, Washington, DC 20004 Phone: (202) 552-2352 Email: Mandrews@clarkhill.com Corporate Counsel (Inside Counsel) ............................................................................................................................................................... Co-Chair: J. Allen Jones STG Logistics, 5175 Emerald Parkway, Ste. 300, Dublin, OH 43017 Phone:(614) 766-6086 Email: allen.jones@stgusa.com ...................................................................................................................................................................................................... Co- Chair: Coby T. Page Nolan Transportation Group, 400 Northridge Road, Suite 1000, Atlanta, GA 30350 Phone: (623) 330-3883 Email: coby.page@ntgfreight.com Distinguished Service Awards....................................................................................................................................................................Chair: Christopher M. Kelly Gallivan, White & Boyd, P.A., 6805 Carnegie Blvd., Suite 200, Charlotte, NC 28211 Phone: (704) 227-1940 E-mail: ckelly@gwblawfirm.com Diversity, Equity and Inclusion..................................................................................................................................................................... Chair: Hillary Arrow Booth Booth LLP - 11835 W. Olympic Blvd., Suite 600E, Los Angeles, CA 90064 Phone: (310) 641-1800 Email: hbooth@boothllp.com Memorials/History ........................................................................................................................................................................................... Chair: Donald J. Vogel Scopelitis, Garvin, Light, Hanson & Feary, 30 W. Monroe St., Ste. 1600, Chicago, IL 60603 Phone: (312) 255-7200 Email: dvogel@scopelitis.com Nominating..................................................................................................................................................................................................... Chair: Steven M. Canty Orleans Canty Novy LLC, 65 E. Wacker Place, Suite 1220, Chicago, IL 60601 Phone: (847) 625-8200 E-mail: scanty@ocnlaw.com Recruitment and Member Services.......................................................................................................................................................................Chair: Fritz R. Damm Scopelitis, Garvin, Light, Hanson & Feary, PLC, 535 Griswold St., Ste. 1818, Detroit, MI 48226 Phone: (313) 237-7400 Email: fdamm@scopelitis.com ................................................................................................................................................................................................Vice Chair: Patrick E. Foppe Lashly & Baer, PC, 714 Locust Street, St. Louis, MO 63101-1699 Phone: (314) 621-2939 Email: pfoppe@lashlybaer.com Student Scholarship .................................................................................................................................................................................... Chair: Bridgette M. Blitch Blitch Westley, S.C., 9100 Conroy Windermere Rd., Ste. 200, Windermere, FL 34786 Phone: (407) 574-2835 Email: bblitch@bwesq.com Technology/Social Media ................................................................................................................................................................................ Chair: William M. Davis Bovis, Kyle, Burch & Medlin, LLC, 200 Ashford Center North, Suite 500, Atlanta, GA 30338 Phone: (678) 338-3981 Email: wdavis@boviskyle.com ..............................................................................................................................................................................................Co-Chair: Louis Amato-Gauci Miller Thomson LLP, Scotia Plaza, 40 King St., Suite 5800, PO Box 1011, Toronto, ON M5h 3S1, CA Phone: (416) 595-8551 Email: lamatogauci@millerthomson.com New and Young Lawyers.........................................................................................................................................................................Co-Chair: Kristen MJ Johnson Taylor Johnson PL, 3023 Eastland Blvd., Clearwater, FL 33761 Phone: (863) 875-6950 Email: kjohnson@taylorlawpl.com ................................................................................................................................................................................................. Co-Chair: Gregory R. Reed The National Star Route Mail Contractors Association, 8521 Leesburg Pike, Suite 350, Vienna, VA 22182 Phone: (202) 543-1661 Email: GregReed@nsrmca.org

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TLA Leadership

Continuing Legal Education Committees 2022 Transportation Law Institute................................................................................................................................................................... Co-Chair: Beata Shapiro Wilson Elser Moskowitz Edelman & Dicker, LLP, 1010 Washington Blvd., Stamford, CT 06901 Phone: (203) 388-9100 Email: beata.shapiro@wilsonelser.com ...............................................................................................................................................................................................Co-Chair: Daniel Sonneborn Preti Flaherty Beliveau & Pachios, LLP, 60 State Street, Suite 1100, Boston, MA 02109 Phone: (617) 226-0901 Email: dsonneborn@preti.com 2023 Regional Seminar—Chicago......................................................................................................................................................................Co-Chair: Laura Gordon Orleans Canty Novy LLC, 65 E. Wacker Place, Suite 1220, Chicago, IL 60601 Phone: (847) 625-8200 Email: lgordon@ocnlaw.com ....................................................................................................................................................................................................... Co-Chair: Robert Reeb Marwedel, Minichello & Reeb, P.C., 303 W. Madison Street, Suite 1100 Phone: (312) 445-5314 E-mail: rreeb@mmr-law.com .................................................................................................................................................................................................... Co-Chair: William Taylor Hanson Bridgett LLP, 500 Capital Mall, Suite 1500, Sacramento, CA 95814 Phone: (916) 551-2939 Email: wtaylor@hansonbridgett.com 2023 Annual Conference ................................................................................................................................................................................ Co-Chair: Stevan Baxter Skoubye Nielson & Johnson, LLC, 999 E. Murray-Holladay Rd., Suite 200, Salt Lake City, UT 84117 Phone: (801) 365-1030 Email: stevan@snjlegal.com ........................................................................................................................................................................................... .Co-Chair: Kristen MJ Johnson Taylor Johnson PL, 3023 Eastland Blvd., Clearwater, FL 33761 Phone: (863) 875-6950 Email: kjohnson@taylorlawpl.com Webinar............................................................................................................................................................................................................ Chair: Stephen Dennis Clark Hill PLC, 2301 Broadway, San Antonio, TX 78215 Phone: (210) 250-6011 Email: sdennis@clarkhill.com

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TLA Committee Corner and DEI Committee Report

TLA Committee Corner Technology Committee Report William M. Davis,* Committee Chair This year, the Technology Committee is working hard to magnify TLA’s presence on social media and create a new TLA website.

We’re going to accomplish these goals with the assistance of Kellen and our many members who are savvy users of LinkedIn, Instagram, TikTok, YouTube and similar social platforms. Here’s how we’re going to do it:

Valuable Content Social media communications have the biggest impact when they invite interaction and commentary from a number of users. We are working with our management company to develop a system for collecting and vetting quality news stories involving law and all modes of transportation. These stories will be periodically shared through our website and LinkedIn page. The rationale behind quality news content is best explained by borrowing a line from Bonnie Raitt: “Let’s give ‘em something to talk about….” News stories are often a catalyst for discussion between our members and other professionals, so they are an excellent choice for social media posts since they invite commentary and interaction.

While the selected news stories will be presented in an unbiased, fact-based fashion—as is befitting for content posted by an organization as inclusive as TLA—we welcome our members sharing and re-posting the content through their own social media and offering their unique opinions on the content with the hope of sparking professional conversations on LinkedIn and other platforms.

The Committee has singled out LinkedIn as a platform of choice for several reasons. When looking at our member’s participation on social media platforms, it appears that LinkedIn is already a favorite. Many TLA members are active on LinkedIn. TLA already has a good presence on LinkedIn, with regular postings submitted through our management company and promoted by our members via “likes” and shares. This established presence can be grown and improved at a rate faster than if we attempted to establish a new presence on a new platform.

Finally, the inner workings of social media sites suggest that our focus should be on achieving high levels of engagement on a single platform as opposed to mediocre engagement across several platforms. Many of you are familiar with the usual suspects when it comes to business marketing on social media: LinkedIn, Instagram, TikTok and YouTube are the frontrunners, with other contenders such as Clubhouse and Twitter not far behind. These * Bovis, Kyle, Burch & Medlin, LLC (Atlanta, GA)

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various platforms work quite differently in terms of how they prioritize and distribute content. Success on any one platform is achieved by consistent posting/interaction in a way that is consistent with the rules of the particular platform’s algorithm. The different platforms use different algorithms and focus on different types of content. For example, TikTok focuses on short videos (less than 10 minutes) while Twitter is a text-based platform. LinkedIn is a hybrid platform that allows text, photos and video—although most users stick to text.

Because of the inherent differences between the platforms, it is difficult to achieve success across multiple platforms simply by cutting-and-pasting the same content from one platform to the next. A posting that does well on Twitter might not be as wellreceived on LinkedIn. The Committee believes it is prudent to achieve excellence on a single platform as opposed to achieving average results across multiple platforms.

One of the most exciting aspects of TLA’s existing LinkedIn presence is that we have so many members who are very active in the LinkedIn community. We will be working to grow member participation on LinkedIn, which will foster online discussions between members and—most importantly—between members and non-members. Additionally, the committee will continue its work to mindfully and purposefully disseminate TLA content on LinkedIn as outlined below.

Spreading the Virtual Word

Social media algorithms play tricks on you. If you’re fortunate to have a significant number of connections on LinkedIn or friends on Facebook, you’ve probably noticed that you continue to see only the same small subset of connections in your news feed. Simply having a large number of connections does not guarantee that a particular posting will be circulated to all of those connections.

Similarly, a user with a large number of connections is unlikely to see content posted by the majority of those connections.

The reasons for this are complex and varied, but there is one common truth to increasing the visibility of online content: it must be cross-posted in areas where it would not otherwise organically appear. For example, LinkedIn Groups is a feature of LinkedIn which

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TLA Committee Corner and DEI Committee Report provides virtual spaces “for professionals in the same industry or with similar interests to share insights and experiences, ask for guidance, and build valuable connections.”1 A LinkedIn user can join the group simply by clicking “join,” and then can interact with that group by posting content and interacting with other content found in the group.

We have identified a number of LinkedIn groups that focus on various areas of transportation, and we are in the process of identifying our members who practice in those areas and who are already using LinkedIn as a normal part of their professional development.

Our hope is that these members will join these groups and share TLA content, thus bringing TLA posts to an entirely new audience on LinkedIn. We have also developed our own internal LinkedIn group which is dedicated to promoting and sharing LinkedIn content. The group is very active and is doing a great job of publicizing TLA’s LinkedIn content. Incidentally, the members of the group also tend to do a great job of promoting each other’s content along the way. If you’re interested in being a part of this exciting group, please reach out to Billy Davis on LinkedIn or email him at wdavis@boviskyle.com. All TLA members are welcome, whether experienced with LinkedIn or

brand new to social media.

A New Website

We are working with the management company to develop a new website for TLA! The new site will be modernized and have an improved look. The Committee is interested in member’s feedback regarding the design of the new site. Please reach out to Billy Davis on LinkedIn or email him at wdavis@boviskyle.com with any thoughts you might have regarding improvements to the site.

TLA’s online presence is likely to be an important factor in its future growth. The culture of the internet is moving away from static websites in favor of interactive media such as social media. TLA can ride this wave of change, and as its online presence grows the website and LinkedIn postings will become hubs of activity for members and nonmembers alike. Interacting online will create a pipeline for adding quality professionals to our membership. It will provide a source of connection for our geographically diverse membership.

It will provide another avenue for professional development and recognition within our great organization. The Committee is very excited about the upcoming year! If you have any questions or would like to get involved, please contact Billy Davis.

Endnotes 1

https://www.linkedin.com/help/linkedin/answer/a540824/linkedin-groups-membership-overview?lang=en#:~:text=LinkedIn%20Groups%20provide%20a%20 place,groups%20you've%20already%20joined.

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TLA Committee Corner and DEI Committee Report

Report on the First Open Meeting of the Diversity, Equity, and Inclusion Committee Hillary Arrow Booth,* Committee Chair The DEI Committee held its first open committee meeting at the recent annual conference in Williamsburg, VA. I was pleased to welcome a roomful of attendees despite the heavy competition by other committee meetings scheduled for the same time slot. Alex Karcher and I lead a robust discussion of microaggressions, starting with an explanation of what they are and identification of the differing types. The attendees joined in the discussion with shared experiences, educating everyone in attendance. We also discussed ways of responding to microaggressions, focusing on the law firm and association meeting settings.

Specifically, we identified and discussed the types of microaggressions: 1. Microassaults – intentional criticisms to discredit or put down others, use of discriminatory symbols or racial epithets.

2. Microinsults – comments that communicate a group is not respected or valued, but the target is an exception to the stereotype.

3. Microinvalidations – comments or actions that diminish the experiences of a group, dismissing someone from that group when they express their challenges, or ignoring the differences or a person’s identity.

We also discussed ideas for responding to microaggressions by both the target and bystanders, including the pros and cons of whether to respond at all. We discussed the range of reactions, including (1) no response, (2) light or joking response, (3) diffusion of the situation, or (4) confrontational response, in the context of as association meeting or work-related social event. The discussion participants favored a joking or diffusion type of response in

social and association settings, but also recognized that in an office setting a more direct and forceful response may be appropriate. In sum, it was a lively and informative discussion providing valuable insights and information to all in attendance.

In addition to holding our first open meeting, the DEI Committee made a proposal to the Executive Committee for identifying and defusing any friction or problems that may be encountered by TLA’s diverse members, including expected conduct and guidance, and procedures for handling problem situations. This proposal includes an anti-harassment policy, protocols and polices for handling complaints, and an amendment to the By-Laws giving the Officers more flexibility and options in handling problem situations. I thank Kathy Garber for her hard work on this project and congratulate her on an excellent proposal. The Executive Committee recommended some modifications and clarifications which are being worked on.

The proposal will be re-submitted at the next Executive Committee meeting in July.

During the conference, and as a permanent task for the DEI Committee, several members, led by Kathleen Jeffries, work with the program chairs for upcoming conferences to assist in creating diversity among speakers and moderators, and providing opportunities for more of our members to obtain speaking roles at our conferences.

As always, I welcome any comments, suggestions, or ideas for our DEI Committee.

* Booth LLP (Los Angeles, CA)

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TLA Feature Articles and Case Notes

Vaccination Requirements for Transportation Workers in International Commerce Dylan Jones* and Ian Breneman**

Steps Taken

Background & Controversy

Public and private efforts to put in place mandatory vaccination requirements for citizens or employees have proven to be highly controversial throughout the world.

In Western countries, including Canada, the United States, the United Kingdom and the European Union, the controversy over vaccination mandates specifically has been a topic of heated debate at all levels of government and in the boardrooms of employers across the commercial spectrum. Perhaps most importantly given the global spread of Covid-19, this has included the international transportation sector. Airlines, road transport companies, and marine shipping companies have been at the forefront of the pandemic response, ensuring necessary goods continue to move across borders, subject to varying degrees of Covid-19 restrictions.

However, the degree to which vaccine mandates have been considered and implemented has differed widely across various jurisdictions. Now that Covid-19 rates are decreasing across the world and Covid-19 restrictions are slowly being lifted, there is an opportunity to examine how Covid-19 vaccine mandates were proposed, challenged, and employed, to consider the current state of affairs, and to contemplate what the future of vaccine requirements might look like.

Canada Early in the pandemic, the Government of Canada restricted movement into the country and implemented a mandatory 14-day quarantine. Underscoring the importance of international trade to Canada’s supply chain and economy, however, an exemption was immediately made for crossborder transportation works.1 International transportation workers continued to be classified as essential workers,2 although the rules began to evolve when vaccines became widely available.

In August 2021, the Government of Canada announced that employees in federally-regulated air, rail, and marine transportation sectors would be required to obtain Covid-19-vaccinations.3 This included employees of international air, rail, and marine carriers based in Canada. Subject to limited exceptions, those employees had to show proof of full vaccination (defined as a complete vaccine dosage regimen using a Covid-19 vaccine authorized for sale in Canada) by a certain date or they would no longer be able to work.

This vaccination requirement was implemented by directing employers in the air, rail, and marine sectors to establish mandatory vaccination policies. The formal requirements were established by a Ministerial Order pursuant to the Railway Safety Act4 and Interim Orders pursuant to the Canada Shipping Act, 20015 and the Aeronautics Act.6 Employers were required to establish mandatory vaccine policies by late October 2021 for rail and air sectors and early November 2021 for the marine sector.

* DAC Beachcroft LLP (London, UK) ** Alexander Holburn Beaudin + Lang LLP (Toronto, ON)

Initially, international air crew were exempt from requirements to provide proof of vaccination or to undergo quarantine. In January 2022, however, international air crew became subject to the general rules prohibiting unvaccinated foreign nationals from entering Canada.7 On November 19, 2021, the Government of Canada announced that truck drivers entering Canada from the United States would have to be vaccinated or face Covid19 testing and quarantine requirements.8 This requirement, which applies to both Canadian and American truck drivers, was implemented through a revised Order in Council made under the Quarantine Act.9 The only initial exemption was for carriers delivering medically necessary supplies.

Understandably, Canada’s vaccination rules applicable to international seafarers have been less stringent. Since they provide an essential service, international seafarers do not need to be fully vaccinated to enter Canada. For example, the Orders in Council made exceptions permitting unvaccinated international seafarers to board outgoing flights.

Shore leave for unvaccinated seafarers on foreign vessels was limited to six hours, whereas vaccinated seafarers could take longer shore leaves beginning on November 1, 2021.10 From late December 2021 to March 2022, however, unvaccinated seafarers could only take shore leave to obtain a vaccine.11

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TLA Feature Articles and Case Notes United States of America In the United States, while some mandatory vaccination regimes for certain transport worker sectors were put in place on a state-by-state basis, there have also been some efforts to put in place similar vaccine mandates by federal regulation and executive order which would encompass workers across the various modes of international transport. As would be expected given the controversy surrounding vaccine mandates and the highly politicized culture in the United States, all of these efforts have been met with significant legal challenges.

On September 9, 2021, President Biden issued two directives aimed at ensuring the vaccinations of workers connected to the federal government as part the Administration’s action plan to combat the ongoing pandemic generally. Both directives were met with judicial challenges.

In the meantime, the federal government stated that it would take no action to enforce implementation of the directives in the jurisdictions and during the periods when court orders or injunctions would prevent it from doing so.

Executive Order 14043,12 the Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, instructed all federal agencies to implement a policy requiring that all federal employees be vaccinated against Covid-19. However, on January 21, 2022, the District Court for the Southern District of Texas stayed this directive in response to an application for a temporary injunction from plaintiffs led by a group of federal employees.13 Previously, a dozen other federal district courts in other states had rejected similar applications. On April 7, 2022, the stay was lifted by the US Court of Appeals for the Fifth Circuit.14 Executive Order 14042,15 Executive Order on Ensuring Adequate Covid Safety Protocols for Federal Contractors, mandated vaccinations for all contractors and subcontractors doing business with the federal government. This directive also led to a flood of litigation filed in multiple states. The Executive Order was stayed by the District Court for the Southern District of Georgia which issued a nationwide preliminary injunction on

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the vaccine mandate.16 This initial stay was followed by similar injunctions issued by four other federal district courts: the Eastern District of Kentucky,17 the Eastern District of Missouri,18 the Western District of Louisiana19 and the Middle District of Florida.20 An appeal of the Kentucky District Court’s injunction, which prohibits enforcement of the contractor vaccine mandate in Ohio, Kentucky, and Tennessee, was denied by the United States Courts of Appeals for the Sixth Circuit on January 5, 2022.21 Appeals of the Louisiana, Missouri, and Georgia decisions are currently pending. As a result, federal contractors must wait and see how the court challenges pan out.

In addition to the two Executive Orders discussed above, the Biden Administration has taken further steps toward a fully vaccinated US workforce.

On September 9, 2021, President Biden also ordered the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS)22 requiring all employers with 100 or more employees to pay time off to get vaccinated and recover from side effects and to require employees to provide proof of vaccination or submit to weekly testing, mask wearing, and other measures aimed at preventing the spread of Covid-19. This sweeping measure would necessarily pull within its remit companies from all transport sectors.

However, on January 13, 2022, the Supreme Court of the United States, in a 6-3 decision, re-imposed a stay of the ETS23 issued by a federal district court and the Biden administration subsequently announced that it would be withdrawing the ETS. Nevertheless, while the federal vaccine mandates await their fate in federal courts, transport sector employers and workers in jurisdictions with local vaccine mandates, such as New York City, must continue to meet vaccination requirements.

In addition to the efforts to put in place vaccine mandates at the public level, innovative employment terms requiring vaccination have been increasingly adopted by private employers, with many employing a carrot-and-stick approach, offering

bonuses to employees who opt to have the vaccine and imposing penalties on employees who do not.

For instance, Delta Airlines announced that it would charge employees on the company health plan $200 for each month that they are not vaccinated against Covid-19 on the basis that the company reports an average hospital stay for the virus costing the airline $40,000.24 United Airlines announced in August 2021 that it would require all of its US-based employees to be vaccinated against Covid19 or they would be required to leave their employment with the company.25 It is reported that 200 employees lost their jobs immediately following implementation of the policy and those who requested religious or medical exemptions were largely put on unpaid leave or allowed to apply for non-customer-facing roles in the company.

It is reported that over 2,000 employees qualified for an exemption.

However, United’s exemption policy was challenged in a federal lawsuit brought by a cohort of United employees. In March, United announced that all exempted employees would be able to return to their previous jobs from unpaid leave or alternate roles, citing the decreasing amount of Covid-19 cases in the US and the rapid increases in the lifting of Covid-19 restrictions across the country.26 In addition, other US airlines took a variety of approaches to requiring vaccines for their employees, including American Airlines, which backed off from an initial proposed vaccine mandate to instead require that all unvaccinated employees, including those with religious or medical exemptions, complete weekly health declarations, wear masks and maintain social distancing whilst undertaking their employment duties.27 Many trucking companies have been very opposed to the concept of mandatory vaccination of their operators, including those that travel back and forth across international borders and are required by those countries into which they travel (including Canada) to be vaccinated. However, many companies have adopted policies whereby bonuses are offered to employees.

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TLA Feature Articles and Case Notes United Kingdom To date, unlike Canada and the United States, there have been no efforts to put in place vaccine mandates by the Government of the United Kingdom, or the devolved governments of Scotland, Wales and Northern Ireland, in response the Covid19 pandemic which would affect workers engaged in the various modes of international transport. Instead, commercial road, air and marine transport workers have been subject to the same various testing rules and requirements in place over the course of the pandemic as any other individual seeking to enter the United Kingdom.

As in other jurisdictions, the concept of vaccine mandates has been met with significant disagreement, with influential Conservative backbenchers and others in Parliament arguing against widespread vaccine mandate schemes. In addition, the United Kingdom has seen high levels of vaccine confidence and uptake when compared to other countries, leading many to argue that any vaccines mandate would be unnecessary.

However, as has been seen in the United State and in other jurisdictions, the lack of any public vaccination requirements has not prevented companies in certain sectors, including transport sectors, from implementing their own private employee vaccination schemes.

During the first stages of the vaccine rollout in the United Kingdom, most airlines and shipping companies indicated that vaccination would remain optional for their employees, but that they would encourage their employees to be vaccinated through educational and incentive schemes. For example, British Airways28 has maintained that vaccination is an individual choice for their pilots and cabin crew and EasyJet has adopted a programme encouraging its employees to be vaccinated but stopped short of ordering them to do so.

However, as certain transport sectors continue to lag behind in recovering from the pandemic and as vaccination rates began to level off, many transport employers began to put in place increasingly mandatory vaccine requirements for their employers, particularly those employers

with significant public engagement such as airlines and those with employees required to be in close contact such as offshore transport. For instance, in September 2021, Virgin Atlantic announced that it would not be hiring any new staff members that were not vaccinated.29 On February 24, 2022,all Covid-19 restrictions, including testing requirements for individuals entering the United Kingdom from abroad, in the United Kingdom were lifted, with the Government indicating that its strategy going forward is for the United Kingdom to adapt to living with Covid-19.30 This shift will likely decrease the amount of private employer vaccine mandates in place.

European Union While there have been no vaccine mandates put in place by the European Union as a whole, there have been significant and contrasting efforts amongst the various EU member countries. For instance, Hungary adopted very few restrictions, including vaccination and testing requirements, during the entire course of the pandemic, whilst neighbouring Austria put in place some of the most severe restrictions seen in any country, including a mandatory vaccination scheme for its citizens.

Early in the pandemic the European Commission (EC) urged EU member states to consider mandatory vaccinations; since then, however, the EC has published Recommendation (EU) 2022/107,31 which proposes an approach to facilitate and encourage safe free movement throughout the EU through the coordination of member countries. This includes the implementation and bloc-wide adoption of an “EU Covid Certificate” as a requirement for travelling within the EU, together with additional entry requirements in the absence of vaccination.32 The Certificate is digital proof of Covid-19 vaccination, a recent negative test result or recent recovery from Covid-19.

In respect of the proof of vaccination, the Certificate is valid for 9 months from the most recent administration of the Covid-19 vaccine. This Certificate,or its equivalent from another jurisdiction, is required of all individuals traveling through the EU, including those engaged in commercial

transport such as lorry drivers, commercial aviation workers, inland waterway workers and seafarers.

Notwithstanding the lack of any EU vaccine mandates, as we have seen in the United States and the United Kingdom, many employers engaged in transportation have put in place their own vaccination requirements.For example, as discussed above Hungary has had one of the least restrictive responses to the Covid-19 pandemic in the EU; however the Hungarian airline Wizz Air announced that it would require all of its pilots and cabin crew members to be fully vaccinated by the end of 2021, with testing requirements accepted in only very limited cases.33 As elsewhere, as Covid-19 cases, hospitalisations and deaths decrease and more and more countries relax their Covid-19 restrictions, it is likely that we will see a decrease in the number of vaccine requirements affecting the EU transportation sector.

Current Situation

Canada The Government of Canada has reiterated and reinforced its vaccine requirement for domestic and foreign workers in the international trade sector since it introduced those rules in late 2021 and early 2022. Canadian employers in the rail, air, and marine sectors are still required to have mandatory vaccination policies.34 At the time of writing, Orders in Council containing the requirement that truckers and air crew be vaccinated to enter Canada are being renewed on a monthly basis.35 While international seafarers are heavily encouraged to be vaccinated, they are not currently required to be vaccinated to transit through Canada for repatriation or for the purpose of limited shore leave.

Most provinces in Canada have relaxed Covid-19 precautions, including many vaccine requirements. However, the Government of Canada has not signaled an upcoming policy shift regarding vaccinations. Unless the pandemic eases considerably or Canada begins to face external political or economic pressure to ease its rules for international transportation

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TLA Feature Articles and Case Notes workers, Canada’s vaccination policies applicable to transportation workers in international commerce are unlikely to change in the coming months.

United States of America As discussed above, the present situation in the United States remains subject to the current judicial environment.

Meanwhile, as the Covid-19 situation improves generally and more and more states lift the associated public health restrictions in place, it is unlikely that further efforts to put in place vaccine mandates at both the state and federal levels will be undertaken. Therefore, absent the emergence of a significantly more dangerous and/or infectious variant of Covid-19, it is likely that the current vaccine mandates in place will slowly be lifted over time.

Nevertheless, private employers may continue to require that their workers be vaccinated against Covid-19 as a requirement of their employment. This likely would be particularly true of workers crossing international borders and interacting with other people in close quarters, such airline crew members.

United Kingdom In lifting all remaining Covid-19 restrictions in February 2022, the Government

of the United Kingdom clearly indicated that it intends for the United Kingdom to adjust to living as normal with Covid-19. The devolved governments accordingly have also been lifting most or all restrictions.

It is widely anticipated that the Covid-19 vaccination will evolve into an annual jab similar to (and perhaps together with) the annual flu jab offered through the NHS and by many private employers.

European Union The various member states of the EU also have begun to lift restrictions to widely varying degrees; however, the trend is the same as that seen elsewhere, that restrictions will be increasingly eliminated as Covid-19 rates decrease. Nevertheless, it is likely that the EU Covid Certificate or similar proof of vaccination, a recent negative test, or recent recovery from Covid-19 will remain a requirement for movement into and through the EU for some considerable time.

Implications for Future Pandemics and International Transportation

even the most sophisticated nations were woefully unprepared to respond to the scope of the pandemic.

The international transportation sector was vital to the response to the pandemic, such as by delivering vital medical equipment and vaccines, and it continues to be essential to the recovery of countries across the world.

Now that the number of Covid-19 cases, hospitalisations, and deaths are decreasing for the most part across the globe, the question should be asked if the world is prepared for similar or greater challenges in the future. What might the response to the emergence of a more dangerous and infectious virus or bacteria look like? In the event that vaccines are developed as rapidly and effectively as those for Covid-19, will vaccine mandates be more uniformly implemented internationally? Further, how will governments and carriers balance the need for a robust public health response without interrupting the necessary transportation of goods internationally?

Over two years after the emergence of Covid-19, its associated lockdowns and restrictions, and the remarkable rollout of highly innovative vaccines, it is clear that

Endnotes 1

Transport Canada, Aviation measures in response to COVID-19 (updated May 19, 2020), https://tc.canada.ca/initiatives/covid-19-measures-updates-guidance-issued-transport-canada.

2 Canada, Public Safety, Guidance on Essential Services and Functions in Canada During the COVID-19 Pandemic (updated October 14, 2021), https://www.publicsafety.gc.ca/cnt/ntnl-scrt/crtcl-nfrstrctr/esf-sfe-en.aspx.

3 Canada, Treasury Board of Canada Secretariat, Government of Canada to require vaccination of federal workforce and federally regulated transportation sector, Aug. 13, 2021, https://www.canada.ca/en/treasury-board-secretariat/news/2021/08/government-of-canada-to-require-vaccination-of-federal-workforce-andfederally-regulated-transportation-sector.html.

4 Transport Canada, Order pursuant to Section 32.01 of the Railway Safety Act (MO (21-07) Vaccination Mandate for Employees, Oct. 29, 2021, available at: https://tc.canada.ca/en/rail-transportation/enforcement-action-measures-mitigate-threats-rail-safety/ministerial-orders-emergency-directives/order-pursuantsection-3201-railway-safety-act-mo-21-071-vaccination-mandate-employees.

5 Transport Canada, Interim Order Respecting Vessel Restrictions and Vaccination Requirements Due to the Coronavirus Disease 2019 (COVID-19), updated Dec. 1, 2021, available at: https://tc.canada.ca/en/ministerial-orders-interim-orders-directives-directions-response-letters/interim-order-respecting-vessel-restrictionsvaccination-requirements-due-coronavirus-disease-2019-covid-19.

6 Transport Canada, Repealed – Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, No. 43, updated Oct. 29, 2021, available at: https://tc.canada.ca/en/ ministerial-orders-interim-orders-directives-directions-response-letters/repealed-interim-order-respecting-certain-requirements-civilaviation-due-covid-19-no-43.

7 Canada, Orders in Council, PC Number 2022-0041, Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada), Jan. 28, 2022, available at: https://orders-in-council.canada.ca/attachment.php?attach=41489&lang=en.

8 Canada, Public Health Agency, Government of Canada announces adjustments to Canada’s border measures, updated Nov. 19, 2021), https://www.canada.ca/en/public-health/news/2021/11/government-of-canada-announces-adjustments-to-canadas-border-measures.html.

9 Canada, Orders in Council, PC Number 2022-0042, Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations, Jan. 28, 2022, available at: https://orders-in-council.canada.ca/attachment.php?attach=41490&lang=en.

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TLA Feature Articles and Case Notes 10

Transport Canada, Updated guidelines respecting the mobility of asymptomatic, presumed non-COVID-carrying* seafarers in the marine sector during the COVID-19 pandemic – SSB No.: 16/2021, Nov. 1, 2021, available at: https://tc.canada.ca/en/marine-transportation/marine-safety/ship-safety-bulletins/updated-guidelinesrespecting-mobility-asymptomatic-presumed-non-covid-19-carrying-seafarers-marine-sector-during-covid-19-pandemic-ssb-no-16-2021.

11 Transport Canada, Updated guidelines respecting the mobility of asymptomatic, presumed non-COVID-carrying* seafarers in the marine sector during the COVID-19 pandemic – December 24, 2021 – SSB No.: 21/2021, Dec. 24, 2021, available at: https://tc.canada.ca/en/marine-transportation/marine-safety/ship-safety-bulletins/ updated-guidelines-respecting-mobility-asymptomatic-presumed-non-covid-19-carrying-seafarers-marine-sector-during-covid-19-pandemic-december-24-2021-ssb-no-21-2021; Transport Canada, Updated guidelines respecting the mobility of asymptomatic, presumed non-COVID-carrying* seafarers in the marine sector during the COVID-19 pandemic – SSB No.: 06/2022, Mar. 3, 2022, available at: https://tc.canada.ca/en/marine-transportation/marine-safety/ship-safetybulletins/updated-guidelines-respecting-mobility-asymptomatic-presumed-non-covid-19-carrying-seafarers-marine-sector-during-covid-19-pandemic-ssbno-06-2022.

12 The White House, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, Sept. 9, 2021, available at: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-requiring-coronavirus-disease-2019-vaccination-for-federal-emp loyees/?msclkid=b9fbe8e6cd2311ec95b13eecbaa6ed05.

13 Feds for Medical Freedom v. Biden, No. 3:21-cv-356, 2022 WL 188329 (S.D. Tex. Jan. 21, 2022) (mem. op.).

14 Feds for Medical Freedom v. Biden, 25 F.4th 354 (5th Cir. 2022).

15 The White House, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, Sept. 9, 2021, available at: www.whitehouse.gov/briefingroom/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors.

16 Georgia v. Biden, No. 1:21-cv-163 (Doc. 94) (S.D. Ga. Dec. 7, 2021).

17 Kentucky v. Biden, No. 3:21-cv-00055-GFVT, 2021 WL 5587446 (E.D. Ky. Nov. 30, 2021).

18 Missouri v. Biden, No. 4:21 CV 1300 DDN, 2021 WL 5998204 (E.D. Mo. Dec. 20, 2021).

19 Louisiana v. Biden, No. 21-cv-3867, 2021 WL 5986815 (W.D. La. Dec. 16, 2021).

20 Florida v. Nelson, No. 8:21-cv-2524-SDM-TGW, 2021 WL 6108948 (M.D. Fla. Dec. 22, 2021).

21 Kentucky v. Biden, 23 F.4th 585 (6th Cir. 2022).

22 U.S. Dept. of Labor Occupational Safety & Health Admin.,COVID-19 Vaccination and Testing ETS, Jan. 25, 2022, https://osha.gov/coronavirus/ets2?msclkid=5138246fcd2611ecbe4e98d5ed4aa0c7.

23 Nat’l Fed. of Indep. Business v. Dept. of Labor, 142 S.Ct. 661 (2022).

24 Daniel Thomas, Delta Airlines imposes $200 monthly surcharge on unvaccinated staff, BBC NEWS, Aug. 25, 2021, https://www.bbc.com/news/business-588335109.

25 Leslie Josephs, United will require its U.S. employees to be vaccinated, a first for country’s major airlines, CNBC, Aug. 6, 2021, https://www.cnbc.com/2021/08/06/united-airlines-vaccine-mandate-employees.html.

26 Leslie Josephs, United Airlines will let unvaccinated employees return to their jobs this month, CNBC, Mar. 10, 2022, https://www.cnbc.com/ 2022/03/10/united-airlines-unvaccinated-workers-can-return-to-their-jobs.html.

27 American Airlines Puts Restrictions on Unvaccinated Workers as Federal Mandate Looms, NBC 5 DALLAS-FORT WORTH, Jan. 7, 2022, https://www.nbcdfw.com/news/business/american-airlines-puts-restrictions-on-unvaccinated-workers-as-federal-mandate-looms/2854188.

28 Fionnula Hainey, Airline to require pilots and cabin crew to be vaccinated by end of year, MANCHESTER EVENING NEWS, Sept. 1, 2021, https://www.manchestereveningnews.co.uk/news/uk-news/airline-require-pilots-cabin-crew-21456622.

29 Isabella Boneham, Virgin Atlantic won’t hire new staff not fully vaccinated against Covid, YORKSHIRE EVENING NEWS, Sept. 29, 2021, https://www.yorkshireeveningpost.co.uk/health/coronavirus/virgin-atlantic-wont-hire-new-staff-not-fully-vaccinated-against-covid-3400322.

30 UK Covid: Boris Johnson announces end to restrictions in England – as it happened, THE GUARDIAN, updated Feb. 21, 2022, https://www.theguardian.com/world/live/2022/feb/21/uk-covid-live-boris-johnson-to-lift-all-remaining-restrictions-in-england.

31 2022 OJ (L 18) 110, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32022H0107&from=EN. 32 European Commission, EU Digital COVID Certificate, https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/safe-covid-19-vaccines-europeans/eudigital-covid-certificate_en?msclkid=9ca0174acd2611ec8e31e7eaf6c32e3a.

33 Lucy Thackray, Wizz Air Makes Vaccination Compulsory for All In-Flight Staff, INDEPENDENT, Sept. 1, 2021, https://www.independent.co.uk/travel/news-and-advice/wizz-air-vaccination-airline-staff-b1912487.html.

34 For example, this requirement was recently reiterated for the marine sector in Interim Order No. 3 Respecting Vessel Restrictions and Vaccination Requirements Due to the Coronavirus Disease 2019 (COVID-19), available at: https://tc.canada.ca/en/ministerial-orders-interim-orders-directives-directions-response-letters/ interim-order-no-3-respecting-vessel-restrictions-vaccination-requirements-due-coronavirus-disease-2019-covid-19.

35 For example, see Canada, Orders in Council, PC Number 2022-0320, Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada), Mar. 31, 2022, available at: https://orders-in-council.canada.ca/attachment.php?attach=41802&lang=en.

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TLA Feature Articles and Case Notes

Formula 1 And MotoGP Supply Chain Interruptions In The 2022 Season!

Transportation & Logistics Lessons To Be Learned Heather C. Devine* and Paul S. Jon**

Formula 1 and MotoGP: The “Race before the Race”

In 2022, the Formula 1 calendar scheduled a record-setting 23 races (before the cancellation of the Russian Grand Prix); under the revised schedule, the ten teams that participate in Formula 1 racing will visit 20 different countries, hopping between different continents no fewer than ten times, sometimes within the span of a week.

DHL, the Official Logistics Partner of Formula 1 since 2004, reports that in 2018, the Formula 1 calendar involved 660 tons of air freight, 500 tons of sea freight, and 131,995 km of air travel using six Boeing 747 planes. Each team reportedly required the movement of an average of 40–50 tons of freight and 10,000 kg of electronics, in addition to 30 freight containers of hospitality equipment and 150,000 kg of broadcasting equipment.1 MotoGP has also scheduled a recordsetting 21 races over the course of the 2022 season, spanning a similarly all-reaching geographic scope. DHL has also been the Official Logistics Partner of MotoGP since 2014, managing the logistics for MotoGP,

Moto2, and Moto3. For back-to-back race weekends, there are only 36 hours in which to move every piece of equipment from one race venue to the next. DHL calls this the “race before the race”.2 But what happens when the logistics crash? Is it a high side – which whips the rider into the air, only to crash down at high speed? Or a low side – a slow-moving crash where the bike lays down, and the rider often moves the bike away in a long, steady slide…?

We conclude that it is the sophisticated and timely logistics behind the scenes which actually drive these high value, high paced prestige motorsports. The transportation & logistics providers for Formula 1 and MotoGP, without a driver’s or constructor’s championship to fight for, are the true unsung heroes of international grand prix racing: those who manage the logistics of transporting by air, land, and sea across continents every piece of race equipment, from safety equipment – including the BMW X5M medical car, racing suits, and driver helmets – to pit crew headsets, broadcasting equipment, and everything else needed to run a successful race weekend.

This article will explore a number of recent logistical issues faced by racing series such as Formula 1 and MotoGP. How do these series prepare for and respond to these issues? What lessons might be learned?

* Alexander Holburn Beaudin + Lang LLP (Toronto, ON) ** Alexander Holburn Beaudin + Lang LLP (Vancouver, BC)

Russia’s Invasion Forces Condensed MotoGP Weekend

In March and April, mechanical issues with cargo planes caused a significant disruption to the 2022 MotoGP grand prix weekend in Argentina – the country’s first race since the outbreak of the pandemic.

After the Indonesian Grand Prix on March 20, 2022, five cargo planes were scheduled to fly the MotoGP cargo for the next race weekend in Argentina.

However, two of the five cargo planes suffered separate mechanical issues, delaying freight from arriving in Argentina until the Friday of the race weekend.3 MotoGP organizers reported that Russia’s invasion of Ukraine and the ensuing loss of Russian haulage companies – estimated at 20% of previously available flights – exacerbated the issue.4 In response, MotoGP rescheduled most of its usual Friday events to Saturday, with qualifying pushed later in the day, to allow for the race to run as scheduled on Sunday. MotoGP advertised this change as a new “challenge” for the teams and drivers, referring to the amplified Saturday schedule as “Super Saturday”.5 Sadly, transit from Argentina to the

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TLA Feature Articles and Case Notes subsequent race in Austin, Texas, faced further issues. A police officer escorting MotoGP freight from the Argentinian track to the nearest airport was reportedly killed in a traffic collision, and two of the flights were delayed or their contents shuffled before reaching Texas.6

When the Plan Fails for Haas … Making Up for Lost Time

Formula 1 also incurred unexpected delays. Following an initial February 2022 “Pre-Season Track Session” in Barcelona, the ten Formula 1 teams, each with two brand new race cars, arrived at the Bahrain International Circuit in Sakhir to officially open the Formula 1 season with pre-season testing in March 10–12, 2022.

At least, that was the plan…

Unfortunately for the Haas F1 Team, key racing equipment, including car components, were delayed and arrived in Bahrain 48 hours late. The cargo plane scheduled to fly Haas’s equipment from the United Kingdom to Bahrain was grounded in Istanbul, Turkey due to technical issues.7 Haas faced potentially missing out on crucial testing time before the season opener on March 20.

How did this happen? Why was Haas the sole team affected? And most importantly, how did Formula 1 and the other teams deal with this challenge?

Overcoming Delays and Objections

Formula 1 chartered air carriers to transport the seven U.K.-based teams’ cargo between England and Bahrain.

However, one of the five Formula 1 air carriers was delayed, affecting only Haas.8 The other six Formula 1 teams were unaffected.

Journalists and team bosses explained that the issue was one of “force majeure”.9 We have written previously on this topic in this Column: a “force majeure” clause is commonly found in contracts, where one or both parties will be relieved of their obligations or liability under the contract in the event of an extraordinary occurrence, such as a war, riot, epidemic, etc.

We enjoyed watching Formula 1’s

response to Haas’s objection to losing its testing time due to the delay. Because the flight was chartered by Formula 1, the series’ organizers ultimately accepted that Haas’s cargo delay was not the team’s fault.

Formula 1 accordingly permitted Haas to make up the lost time in evening test sessions (albeit only after objections from opposing teams to alternative plans).10 Haas went on to impress, setting the fastest lap of the second day of testing during their extra time,11 and ultimately earning a strong points finish in the season’s opening race the following weekend.

of course required a significant response.

For example, when Formula 1’s seasonopening 2020 Australian Grand Prix was cancelled at the last minute and the entire season’s calendar thrown into abeyance, DHL placed equipment in four “strategic hubs” located in the United Kingdom, Canada, Dubai, and Vietnam,15 prepared to reach any race circuit in the world within 10 days upon the announcement of a new calendar.16

The Inevitability of Shipping Delays for Prestige Motorsports

Due to Formula 1’s heavy European presence, European races are generally supplied through road freight and effectively serve as “home” races for the teams. For some journeys, such as from Portimão, Portugal to Imola, Italy in May 2021, each truck is operated by consecutive double crews who take turns sleeping so that the truck continues its journey while the drivers comply with their hours-of-service requirements.17 Races outside of Europe are commonly referred to as “flyaway races” for logistical purposes and create much greater challenges in transportation. As of 2019,18 five sets of shipping containers were used to ship “non-critical” race equipment such as kitchen equipment and hospitality items by sea, with certain sets being reused during different geographic legs of the season.

Meanwhile, “critical” race equipment is flown by cargo planes to each race, carrying the likes of pit stop equipment and enough car components for each team to build three race cars. The United Kingdom-based teams will typically “plane-pool,” as will the three continental European teams.19 In addition to DHL’s motorsport services, there are other transportation & logistics service providers. For example, in January 2022, Ferrari entered into a multiyear partnership with French company CEVA Logistics for sea and road freight,20 replacing UPS, who had been Ferrari’s partner for nine years.21 Alpha Tauri recently partnered with Hong Kong-based Flex Box.22 Haas Is the Only US-based Team Haas is the only team whose primary

When Not by Sea then by Air In April 2022, a shipment by sea transporting equipment for three Formula 1 teams was delayed on its way to the Australian Grand Prix in Melbourne. The delay was resolved when DHL arranged for the freight to be transferred from the ship in Singapore and flown directly to Australia.12 The increase in cost must have been offset by avoiding the repercussions of delay.

Intercontinental Triple Header – Bad Weather in 2021 The 2021 season featured a tripleheader spanning three continents in three weekends, from Mexico to Brazil to Qatar.

Cargo delayed by bad weather enroute from Mexico to Brazil affected all teams. In response, Formula 1 alleviated the effects of the delay by waiving the usual curfew on teams building cars and adjusting standard inspection timelines.13 Overcoming Brexit Brexit reportedly caused additional challenges, with teams and logistical partners faced with new customs procedures and fees when crossing the border. For instance, moving motorsport vehicles from the United Kingdom – where most Formula 1 teams are based – to Europe now requires an international customs document known as an “ATA Carnet” in order to avoid unnecessary duties and taxes.14 The Pandemic The outbreak of the COVID-19 pandemic

By Sea, Air, and Truck: From North Carolina to Europe and Beyond

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TLA Feature Articles and Case Notes headquarters are not located in Europe.

Of the nine other teams, six are based in the United Kingdom, two in Italy, and one in Switzerland. Haas, on the other hand, is based in North Carolina in the United States. Given approximately half of each season’s races take place in Europe, and only five of this year’s races take place in the Western Hemisphere (two in the United States and one in each of Canada, Mexico, and Brazil), Haas is at a geographic disadvantage in terms of moving its equipment and personnel from home to the race.

To compensate, Haas also owns a base of operations in Banbury, England, which it purchased from the defunct Marussia F1 Team.23 This base serves as the team’s

European hub, from which it supplies most of the races. No doubt, if Haas did not own its Banbury location, the logistical challenges of supplying and transporting to the series’ numerous European and Middle Eastern races would be even more pronounced.

Industry Insight As the costs of transportation & logistics services continue to climb, DHL’s Vice President of Motorsport Logistics, Paul Fowler, has referred to what has become “almost a bidding war” in shipping rates.24 Guenther Steiner, team principal for the Haas F1 Team, states he expects shipping delays will be inevitable and will fall beyond the control of Formula 1 or the teams. “[I]t’s one of those things that are

just out of [your] control,” he said recently.

“As long as you don’t get your own planes, you’re always counting on other people to help you out.”25

Final Word: The Importance of Strong Logistical Relationships

Long-term business relationships must be based upon mutual respect and give and take. After reviewing the transportation and logistics in prestige motorsports, we conclude that issues are inevitable, but a longstanding and dedicated partnership based upon mutual respect will enable each party to work together to resolve issues without significant legal conflict.

Endnotes 1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21

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DHL, Formula 1® - Enabling the Greatest Racing Spectacle on the Planet, https://www.dhl.com/global-en/home/about-us/partnerships/motorsports/formula-1.html.

DHL, MotoGP™ - The Thrill of Motorsports Logistics, https://inmotion.dhl/en/motogp.

MotoGP, Logistical issues see Friday action rescheduled in Argentina, March 31, 2022, https://www.motogp.com/en/news/2022/03/31/logistical-issues-see-friday-action-rescheduled-in-argentina/412004?_adin=02021864894.

Lewis Duncan, MotoGP Argentina freight issues impacted by war in Ukraine, Autosport, Mar. 31, 2022, https://www.autosport.com/motogp/news/motogp-argentina-freight-issues-impacted-by-war-in-ukraine/9489177.

Super Saturday: MotoGP riders ready for the “challenge”, MotoGP, March 31, 2022, https://www.motogp.com/en/news/2022/03/31/super-saturday-motogp-riders-ready-for-the-challenge/412034.

Simon Patterson, Fresh Freight Delays Could Disrupt MotoGP’s Austin Weekend, The Race, Apr. 6, 2022, https://the-race.com/motogp/fresh-freight-delays-could-disrupt-motogps-austin-weekend.

Haas to miss start of Official Pre-Season Testing in Bahrain, FORMULA 1, Mar. 9, 2022, https://www.formula1.com/en/latest/article.haas-to-miss-start-of-official-pre-season-testing-in-bahrain.3RTNQzIozTGPs1iGLVwerZ.html.

Michael Schmidt, Haas misses test start, Auto Motor Sport, Mar. 9, 2022, https://www.auto-motor-und-sport.de/formel-1/haas-defekt-cargo-flugzeug-test-bahrain-schumacher.

Scott Mitchell, Cargo Misfortune May Delay Haas’s Start to Second F1 Test, The Race, Mar. 7, 2022, https://the-race.com/formula-1/cargo-misfortune-may-delay-haass-start-to-second-f1-test; Divyansh Priyadarshi, Haas Run Special Program at Bahrain F1 Test Despite Backlash From Mercedes & Co., Essentially Sports, Mar. 11, 2022, https://www.essentiallysports.com/f1-news-haas-run-special-program-at-bahrain-f1-test-despite-backlash-from-mercedes-co.

Keith Collantine and Claire Cottingham, Haas allowed to extend test days to make up for lost running, RaceFans.Net, Mar. 10, 2022, https://www.racefans.net/2022/03/10/haas-allowed-to-extend-test-days-to-make-up-for-lost-running.

Sainz fastest on disrupted second day of pre-season testing in Bahrain, FORMULA 1, Mar. 11, 2022, https://www.formula1.com/en/latest/article.sainz-fastest-ondisrupted-second-day-of-pre-season-testing-in-bahrain.4UPoP8RxqUvkNV3CjNk5JM.html.

Jonathan Noble, Rescue mission averted F1 freight delay for Australian GP, Motorsport.Com, Apr. 6, 2022, https://www.motorsport.com/f1/news/rescuemission-averted-f1-freight-delay-for-australian-gp/9657810.

Alan Baldwin, F1 waves Brazil GP curfew after freight delays, Reuters®, Nov. 11, 2021, https://www.reuters.com/lifestyle/sports/f1-waives-brazil-gp-curfew-after-freight-delays-2021-11-11.

ATA Carnet to Europe – FAQs, Motorsport UK, https://www.motorsportuk.org/the-sport/brexit-transition/ata-carnet-to-europe-faqs.

See https://www.youtube.com/watch?v=DGTTffWAzRA. The Incredible Logistics of Racing During a Pandemic, DHL, https://inmotion.dhl/en/formula-1/logistics.

See https://www.youtube.com/watch?v=DGTTffWAzRA. See https://www.youtube.com/watch?v=MH6Loko0BOA. Nicky Haldenby, The Logistics of Formula 1, Destinations, Jan. 28, 2019, https://f1destinations.com/the-logistics-of-formula-1.

CEVA Logistics becomes Team Partner of Scuderia Ferrari and logistics provider for Ferrari racing activities, CEVA Logistics, Jan. 26, 2022, https://www.cevalogistics.com/en/news-and-media/Newsroom/press-release/ceva-becomes-team-partner-of-scuderia-ferrari.

Georgina Yeomans, Ferrari end nine-year UPS partnership, Blackbook Motorsport, Jan. 4, 2022, https://www.blackbookmotorsport.com/news/scuderia-ferrari-f1-ups-sponsorship-velas-network-pmi-mission-winnow.

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Balazs Szabo, Alpha Tauri announces a new partnership with Flex Box, F1 Technical, Feb. 17, 2022, https://www.f1technical.net/news/23605.

Jonathan Noble, Haas Formula 1 squad buys Marussia factory but not the team, Autosport, Jan. 21, 2015, https://www.autosport.com/f1/news/haas-formula-1-squad-buys-marussia-factory-but-not-the-team-5019509/5019509.

Jonathan Noble, Freight delay risks are out of F1’s hands, says Steiner, Motorsport.Com, Apr. 7, 2022, https://www.motorsport.com/f1/news/freight-delay-risks-are-out-of-f1s-hands-says-steiner/9689241.

Id.

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TLA Feature Articles and Case Notes

Supreme Court of Indiana Reaffirms Interstate Requirement for MCS 90 Endorsement Robert “Rocky” Rogers*

The Supreme Court of Indiana wasted no time in reversing a lower appellate court ruling, which had held that the federallymandated MCS 90 endorsement applied to a purely intrastate non-hazmat trip within the State of Indiana. In Progressive Southeastern Ins. Co. v. Brown,1 the Supreme Court of Indiana reversed the Court of Appeals of Indiana’s decision, rendered less than a year before in the case of Progressive Southeastern Ins. Co. v. B&T Bulk, LLC.2 The Supreme Court of Indiana’s ruling serves as a reaffirmation that one of the conditions for the MCS 90 to be triggered is that the trip being undertaken at the time of a loss must be interstate in nature.

The facts of the accident are straightforward. In 2017, an employee of a Mishawka, Indiana-based trucking company was pulling an empty trailer to pick up a load of concrete (non-hazmat) in Logansport, Indiana for delivery to South Bend, Indiana when he crossed the median and collided with another vehicle, which resulted in fatal injuries to the occupant of the other vehicle.

The motor carrier held interstate motor carrier authority and often performed work in Indiana and Michigan. The motor carrier’s insurance policy was a scheduled auto policy—meaning that for a vehicle to be a covered/ insured auto it must be specifically described on the declarations page * Mosley Marcinak Law Group (Greenville, SC)

or otherwise qualify as an after-acquired, replacement, or temporary substitute auto.

The involved tractor and trailer were not specifically described on the policy and the evidence established they did not qualify as an after-acquired, replacement, or temporary substitute auto. However, the policy included the federally mandated MCS 90 endorsement, which is required on all insurance policies issued to an interstate motor carrier intended to meet the federal financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980.

In the declaratory judgment action filed by the insurer, the trial court ruled the insurer had no duty to defend or indemnify the motor carrier under the terms of the policy because the accident did not involve an insured auto, but that the MCS 90 applied and required the insurer to satisfy any final judgment rendered against the motor carrier. The insurer appealed the portion of the trial court’s ruling holding the MCS 90 applied. On appeal, the Indiana Court of Appeals affirmed the trial court’s ruling that the MCS 90 applied.3 The Indiana Court of Appeals reasoned that despite a majority of the courts addressing the issue having held the MCS 90 only applies to interstate transportation of property (i.e. “trip specific” approach), the enactment of Indiana Code § 8-2.1-24-18(a) applied the same requirements to intrastate transportation.4 The at-issue statute incorporated the same federal financial responsibility requirement to purely intrastate transport within Indiana. The Indiana Court of Appeals surmised that in light of the statute, “in order to write policies in Indiana, [an insurer] had to comply with Section 18(a)’s requirement that the minimum levels of financial

responsibility in 49 C.F.R. part 387 apply to intrastate transportation.”5 Accordingly, the Indiana Court of Appeals held the MCS 90 was applicable and required the insurer to satisfy any judgment rendered against the motor carrier arising from the accident up to the amount of the endorsement–$750,000.

On appeal, the Supreme Court of Indiana reversed the lower courts’ rulings on the interstate versus intrastate requirement. Specifically, the Court pointed out that Section 30 of the Motor Carrier Act only applies to motor carriers transporting nonhazmat property in interstate commerce or carriers transporting hazmat property in intrastate commerce.6 Accordingly, the Court held “section 30’s financial responsibility requirements apply in only two circumstances: first, when a motor carrier transports property in foreign or interstate commerce; second, when a motor carrier transports hazardous property in foreign, interstate, or intrastate commerce.” Because under the applicable enacting statutes, the MCS 90 only applied to motor carriers subject to Section 30, the MCS 90 could only apply in those limited circumstances.

With respect to the Indiana statute, the Supreme Court of Indiana specifically noted that it incorporated by reference 49 C.F.R. part 387 “in full and does not amend any subparts or provide alternate definitions for interstate or intrastate.”7 Accordingly, the above-discussed limitations under the federal statute and regulation (i.e. only two instances where MCS 90 is triggered) were also incorporated in full into the Indiana statute. Therefore, the Indiana statute did not expand the situations in which the MCS 90 is triggered beyond those two limited circumstances. Since it was undisputed between the parties that the motor carrier

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TLA Feature Articles and Case Notes was engaged in a purely intrastate trip8 and was not transporting hazardous materials at the time of the accident, the MCS 90 did not apply.

This decision is important because it reinforces the limited circumstances in which the MCS 90 endorsement is triggered. It is not merely enough that an

accident involves a motor carrier holding interstate motor carrier authority or that the motor carrier has an MCS 90 endorsement on its insurance policy. For the MCS 90 to be applicable, the motor carrier must have been engaged in interstate commerce or transporting hazardous materials intrastate at the time of the accident.9 Of course, this

ruling is limited to the MCS 90 endorsement and does not specifically address any obligations upon an insurer under Form E/F endorsements, which are typically issued to satisfy any state-mandated financial responsibility requirements.

Endnotes 1

182 N.E.3d 197 (Ind. 2022).

170 N.E.3d 1125 (Ind. Ct. App. 2021).

3 Id.at 1134.

4 Id. at 1132. The Indiana Court of Appeals also held that the MCS 90 could be triggered when a tractor-trailer, while empty, is on its way to pick up a load. That issue was not addressed on appeal by the Supreme Court of Indiana.

5 Id. 6 182 N.E.3d 197, at 200-201 (citing 49 U.S.C. § 31139 & 49 C.F.R. part 387).

7 Id. at 202.

8 The Court did leave open the possibility that a purely intrastate trip could nevertheless qualify as interstate transport under either the trip-specific approach of the fixed-intent-of-the-shipper approach but held that under these facts the at-issue trip was purely intrastate under either approach. Notably, the Supreme Court of Indiana did not rule on whether the trip-specific approach or the fixed-intent-of-the-shipper was the appropriate test under Indiana law, reserving that issue for another day. However, it did reject the “public-policy” approach, which holds that the MCS 90 is triggered for any accident involving a federally-licensed interstate motor carrier, explaining this approach ignores the clear language and limitations contained within the applicable federal statutes and regulations governing the MCS 90.

9 There are also other important triggering conditions for the MCS 90 to be applicable, which were not at issue in this case; those requirements include but are not limited to: (1) there is no other insurance available for the motor carrier in at least the federal financial minimum; and (2) the motor carrier is operating as a “for hire” motor carrier meaning it is transporting property belonging to another for compensation at the time of the loss. See Carolina Ins. Co. v. Yeates, 584 F.3d 868 (10th Cir. 2009) (en banc); Martinez v. Empire Fire & Marine Ins. Co., 94 A.3d 711 (Conn. 2014); OOIDA Risk Retention Grp., Inc. v. Griffin, 2016 U.S. Dist. LEXIS 57469, C.A. No. 2:15-cv-98 (E.D.Va. Apr. 29, 2016).

2

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TLA Feature Articles and Case Notes

Florida Supreme Court Takes the Air Out of Inflated Medical Damages: Elaine Dial v. Calusa Palms Master Association, Inc. J.W. Taylor*

Whether you prefer to call the issue “Truth in Damages”, “Transparency in Damages”, “Phantom Damages,” or even “Inflated Medical Damages,” a great debate has persisted across the nation as attorneys and industry professionals alike attempt to explain frequently inexplicable Nuclear and now Thermonuclear Verdicts. Medicare providers routinely bill patients for services in amounts that greatly exceed what Medicare will ultimately pay for those services. Those providers must accept the amount that Medicare pays in order to participate in the program. Based on previously unclear case law, a jury in a personal injury or wrongful death suit could hear the amounts the provider initially billed, the amounts the provider actually accepted as full and final payment from Medicare for services, or both. On April 28, 2022, with its decision in Dial v. Calusa Palms Master Association, Inc.,1 the Florida Supreme Court made clear that, moving forward, a jury should only have the ability to hear and consider the amount the provider accepted as payment from Medicare and not the grossly inflated amount that was initially billed.

Prior to this decision, there was legislation proposed in Florida’s State Congress directed at both limiting the nature of past * Taylor Johnson PL (Winter Haven, FL)

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medical expenses a plaintiff may present to a jury and curtailing inflated verdicts.

House Bill 561 and Senate Bill 846, however, died the slow agonizing legislative death in the 2021 legislative session in early May. All was not lost though - enter Dial. Elaine Dial was injured in a trip-andfall incident which occurred on property owned by Calusa Palms Master Association, Inc. (“Calusa Palms”). At the time of the incident, Ms. Dial had private health insurance, but thereafter became eligible for Medicare. As is the standard protocol in Florida for such litigation involving past medical expenses, both Ms. Dial and Calusa Palms filed motions in limine arguing the admissibility of her past medical expenses and collateral sources of payment. With regard to medical expenses handled by Ms. Dial’s private health insurer, Calusa Palms conceded that Ms. Dial could admit the full past medical expense amounts, even though they had been paid at the private insurer’s discounted rates. With regard to the medical expenses covered by Medicare, however, Calusa Palms argued that Ms. Dial should only present the amount actually paid by Medicare, rather than the figures presented in the provider’s initial billing.

Interestingly, Ms. Dial argued that by paying monthly premiums for Medicare, Medicare should be considered a collateral source and the full amounts of her past medical expenses should be admissible.

Notwithstanding Ms. Dial’s argument, the trial court granted Calusa Palms’ motion in limine and denied Ms. Dial’s motion. The resulting calculation of damages, factoring in the Medicare discounted amounts, totaled $34,641.69. Had Ms. Dial been

permitted to admit the full amounts, her past medical expenses would have totaled approximately $120,000.00. At the conclusion of trial, the jury awarded Ms. Dial $34,641.69 for past medical expenses, representing a reduction of her potential past medical damages of roughly $85,000!

Of course, Ms. Dial appealed and asked Florida’s Second District Court of Appeals for the full amount of her medical damages to be awarded rather than the discounted Medicare amount.

The Second District Court of Appeals upheld the lower court’s determination, stating it was bound by its prior holding in Cooperative Leasing, Inc. v. Johnson.2 In that case, the Second DCA held that “the appropriate measure of compensatory damages for past medical expenses when a plaintiff has received Medicare benefits does not include the difference between the amount the Medicare providers agreed to accept and the total amount of the plaintiff’s medical bills.”3 While the holding in Johnson appears clear enough, the Second District Court of Appeals had to address the decision in Joerg v. State Farm Mutual Automobile Insurance Co.4 where the Florida Supreme Court held that the plaintiff, a developmentally disabled adult who was struck by a car while riding his bicycle, could not present the jury with potential eligibility for future Medicare benefits for the purpose of determining future medical expenses.

The reasoning behind the Florida Supreme Court’s holding in Joerg noted that a jury should not be prejudiced by speculative benefits which a plaintiff may or may not receive in the future, as it might prompt the jury to return an artificially low judgment if

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TLA Feature Articles and Case Notes the plaintiff never actually receives future compensation from the potential benefit or the potential benefit program is cancelled or otherwise extinguished.5 Although the Second District Court of Appeals was not convinced that Joerg implicitly abrogated its ruling in Cooperative Leasing, it nevertheless felt compelled to certify the question for two reasons. First, the frequency with which the issue arises in negligence cases made it a matter of great and recurring importance. Second, the state’s highest court needed to strike the appropriate balance between the competing policies at play—limiting evidence of collateral sources to avoid jury confusion versus permitting evidence to assist the jury in determining the “reasonable value” of medical expenses.

On April 26, 2021, the Florida Supreme Court accepted jurisdiction of Dial, which reached the Supreme Court on December 11, 2021, after the Second District Court of Appeals certified the following question of great public importance: Does the holding in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), prohibiting the introduction of evidence of Medicare benefits in a personal injury case for purposes of a jury’s consideration of future medical expenses, also apply to past medical expenses?

The Court’s answer reflects its interpretation of how a true measure of damages

must be established – NO! On April 28, 2022, in a 6-1 opinion, the Florida Supreme Court ruled that the introduction into evidence of Medicare benefits is allowed for a jury’s consideration of past medical expenses. The Court determined that its prior ruling in Joerg only applies to future medical benefits from Medicare.

These speculative future medical benefits are distinguished from known past payments made by a collateral source in that they are definite and represent an amount actually paid rather than an unknown figure which may never actually be granted to an injured plaintiff. Moving forward, Florida juries will see the amount actually negotiated and paid for by Medicare rather than the initial billed amount for services. The presented damages will no longer include a significant amount of charges which were never actually paid for by Medicare and, therefore, would not be an accurate valuation of the cost of services and resulting monetary damages.

The Florida Supreme Court also considered and addressed the potential social impact of this issue, as presented by Ms. Dial in her jurisdictional brief. Specifically, Ms. Dial cited to a Centers for Medicare and Medicaid Services (CMS) estimation that approximately 21% of Florida’s population are Medicare beneficiaries. Mrs. Dial also cited to ten circuit court cases in which the judges came to inconsistent conclusions about Joerg’s effect on Cooperative Leasing and/or whether evidence of a plaintiff’s past medical expenses was limited to only

the amount paid by Medicare. Additionally, according to the Medicare Enrollment Dashboard, there are over 4.5 million Floridians who are Medicare beneficiaries.6 This opinion will therefore have a significant and broad impact in lowering the amount of medical expenses the jury may consider.

Notably, Justice Polston issued a concurring opinion. The concurring opinion is more pointed than the majority opinion and shows that he would seek to expand the Court’s ruling beyond just Medicare.

Justice Polston would limit evidence to the amount medical providers accept in satisfaction of medical bills, regardless of the source of those payments, “whether the discounted amounts are derived from government insurance, private insurance, or other third-party arrangement.”7 Moreover, Justice Couriel joined Justice Polston’s concurrence, which states “[w]hen the proper amount is admitted into evidence, there is no need for a post-trial setoff and no resulting disparate treatment.”8 Should future decisions accept the guidance presented by Justices Polston and Courial, this ruling could expand to include private medical insurance providers. Does this open the door to completely taking the air out of inflated medical damages? It will certainly be “dry powder” in settlement negotiations and legislative drafting.

This ruling is an important and favorable step in deflating excessive jury awards, combating nuclear verdicts, and curbing lawsuit abuse.

Endnotes 1

Case No. SC21-43, 2022 WL 1261150 (Fla. Apr. 28, 2022).

872 So. 2d 956 (Fla. Dist. Ct. App. 2004).

3

Id. at 960.

4 176 So. 3d 1247 (Fla. 2015) 5

Id. at 1256-57.

6 Centers for Medicare & Medicare Services, Medicare Total Enrollment, at Table MDCR ENROLL AB 2 2020, https://data.cms.gov/summary-statistics-on-beneficiary-enrollment/medicare-and-medicaid-reports/medicare-total-enrollment.

7 2022 WL 1261150, at *4 (Polston, J., concurring).

8

Id. 2

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TLA Feature Articles and Case Notes

LeDure v. Union Pacific: Locomotive Inspection Act Case Law Stays Intact and “In Use” for Now Al F. Teel and Madeline E. Hughes*

On April 28, 2022, the United States Supreme Court let stand a Seventh Circuit decision that held Union Pacific was not liable for injuries an engineer suffered when he slipped and fell preparing a train to depart an Illinois rail yard. The decision in Bradley LeDure v. Union Pac. R.R. Co. maintains the status quo and provides little guidance to lower courts that have struggled to garner consensus on how to interpret the phrase “in use” in the Locomotive Inspection Act (“LIA”).1 Bradley LeDure, a locomotive engingeer, brought suit against against his employer, Union Pacific Railroad Company, under the Federal Employers Liability Act (“FELA”)2 and the LIA.3 LeDure argued that Union Pacific failed to maintain a safe workplace in violation of the FELA. The LIA and its corresponding regulations require railroads to keep locomotive walkways clear of hazards while the locomotive is “in use.”4 Notably, if a FELA plaintiff can successfully show that a locomotive is in violation of the LIA, then the plaintiff can argue negligence per se. This can result in the railroad defendant losing the plaintiff’s contributory negligence as an affirmative defense. The recent trend in FELA litigation has been for the plaintiff to move affirmatively for partial summary judgment citing violations * Burr & Forman, LLP (Burmingham, AL)

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of the LIA or the related Safety Appliance Act (SAA) to take contributory negligence away from the defense. In keeping with this trend, LeDure moved for partial summary judgment, arguing Union Pacific failed to comply with LIA regulations to subject Union Pacific to a negligence per se standard, rather than the FELA’s negligence standard.

Union Pacific moved for summary judgment, arguing that the LIA’s negligence per se standard did not apply because LeDure was not injured while the locomotive was “in use” on Union Pacific’s line.5 The district court entered summary judgment for Union Pacific, and the Seventh Circuit Court of Appeals affirmed the decision. The Supreme Court affirmed.

to shut it down and tag it appropriately, he slipped and fell down the locomotive’s steps.

LeDure got up, proceeded to power down and tag the locomotive, and returned to the walkway where he fell. He identified a “slick” substance on the walkway. LeDure reported the incident to his supervisor and gave a written statement before he went home later that day. Union Pacific conducted an inspection and reported cleaning a “small amount of oil” on the walkway.

The “Rail” Facts

Despite going all the way up to the Supreme Court, the actual facts resemble a routine slip-and-fall case. On August 12, 2016, at approximately 2:10 a.m., LeDure reported to work at a rail yard in Salem, Illinois. His task? To assemble a train for a trip to Dexter, Missouri. To do so, LeDure had to determine how many locomotives were necessary to carry the load and to tag each one to determine whether or not they would operate. LeDure turned to three locomotives, coupled together on a nearby sidetrack, that had arrived earlier that morning from Chicago, Illinois. LeDure decided that only one locomotive needed to be powered on for the trip to Dexter. LeDure tagged the first locomotive for operation and the second locomotive for non-operation. As he moved to the third locomotive, UP5683,

The Track to the Supreme Court

The district court entered summary judgment for Union Pacific. Addressing the LIA claim, the court pointed out that other district courts’ decisions on what constitutes “in use” under the LIA “are irreconcilably disparate.”6 Recognizing the differing approaches courts take when deciding what constitutes “in use,” the district court chose to follow the binding standard of Lyle v.

Atchison, T. & S.F. Railway Co.7 The district court concluded the locomotive was stationary, parked on a back track of the depot yard, had not yet been inspected or tagged, and had not been assmebled into a train for use in interstate commerce, all of which weighed against considerring the locomotive “in use.”

The Seventh Circuit affirmed the

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TLA Feature Articles and Case Notes district court’s ruling and explained the district court properly applied Lyle and its holding that “to service an engine while it is out of use, to put it in readiness for use, is the antithesis of using it.”8

Divergent Tracks

Problematically, “Lyle did not create any sort of concrete test or set of guidelines… [consequently, courts] applying the case are all over the map.”9 Much like the Seventh Circuit, other circuits have developed varying standards regarding whether a locomotive is “in use” for the purposes of the LIA. The Tenth Circuit has said that “in use” means “used in moving interstate or foreign traffic.”10 In Estes, the court held that a locomotive, housed in a roundhouse and “given light maintenance,” was not being used to move interstate or foreign traffic; therefore, the locomotive was not “in use.”11 The Fifth Circuit has said that a locomotive is not “in use” until all predeparture procedures are complete.12 In Trinidad, the plaintiff was injured while walking to inform his engineer of a defect discovered during a predeparture inspection. The court determined that the locomotive was not in use because the predaparture inspection was not complete.13 In contrast to these more formalistic rules, the Fourth Circuit in Deans applied a “totality of the circumstances” test with the most important factors being (1) where the train was located; (2) if the train was stationary, what time the train was scheduled to depart; and (3) what the injured party was doing at the time of the accident.14 Deans, a conductor, was injured while releasing a handbrake to set the train in motion. Under Trinidad v. S. Pac. Transp. Co., Deans would have been unable to recover because he was injured before a predeparture test had been conducted. The Fourth Circuit diverged from the Fifth Circuit’s standard so liability would not be determined “on the mere happenstance of whether an employee chooses to release the hand brakes or conduct an air brake test first.”15 The First Circuit chose to apply a formulistic test in McGrath. The determination of use under the First Circuit’s standard

depends whether a locomotive is running on the yard track and ready to move into service, and whether the worker was injured while performing pre-departure inspection duties.16 If both questions are answered in the affirmative, then the locomotive was “in use.”17 Given the different interpretations among the circuits, many were hopeful that the Supreme Court would clarify the standard for the determination of “in use” in LeDure. Union Pacific argued that LeDure was not injured on a train that was “in use” under any standard because “a locomotive that is not operating, is not going to be operated, or requires preparation for future operation” could never be considered “in use.” Union Pacific contended the locomotive was not “in use” under the LIA because it was motionless, parked on a sidetrack, had not been inspected for departure, and was tagged to “run dead” to its next destination as part of a train that had yet to be assembled.

LeDure, on the other hand, argued the train was “in use” despite being temporarily stopped and idling on a sidetrack because it was being prepared to resume travel to its assigned destination. Ledure urged that use be interpreted in the broader sense, which includes a locomotive being “put to a purpose.” LeDure’s arguments sounded in the totality of the circumstances standard as applied by the Fourth Circuit.

The Sheet Metal, Air, Rail Transportation Workers-Transportation Division, the Association of American Railroads, the Chamber of Commerce of the United States of America, and the Solicitor General all filed amicus curiae briefs in the case.

The Solicitor General and the Sheet Metal, Air, Rail Transportation Workers argued that rail equipment (both locomotives under the LIA and cars under the SAA) should be considered “in use” whenever it is in the “employment” of a railroad and that it is only out of use when it has been withdrawn from service for repair, storage, or retirement. According to the Solictor General and the Sheet Metal, Air, Rail Transportation Workers, this interpretation promotes “[t]he clear intent, encourgagement, and dedication of Congress . . .

[to] safety in railroad transportation.” Their amicus briefs highlighted safety concerns, including the fact that railroad workers are injured more frequently on stationary locomotives than on moving locomotives.

The Association of American Railroads and the Chamber of Commerce of the United States of America both warned against a broad interpretation of “in use” that would expand strict liability against railroads. They warned that strict-liabiilty can lead to “over-deterrence and inefficiency” and that “[g]iven the railroads’ key role in our over-stressed supply chain, courts should take care before imposing rules that would reduce efficiency of rail operations and increase costs for shippers and consumers without increasing safety.”

Their amicus briefs pointed out that the petitioner and the government’s position would affect potentially hundreds, or even thousands, of locomotives each day and would result in wasteful use of resources in the form of daily inspections of idle locomotives.

Oral Argument

The Supreme Court held oral argument in March 2022, which consisted of several interesting hypotheticals, railroad-related puns, and even a reference by outgoing Justice Breyer to the children’s classic “The Little Engine That Could.” For example, Chief Justice Roberts posed the following hypothetical to Plaintiff’s counsel: A locomotive has been placed on a sidetrack and the railroad says the next time we are going to use it is in 10 days. Throughout those 10 days, would the locomotive be considered “in use”? In response, LeDure’s counsel replied, “Yes, it would. And the reason is that locomotives are used for many purposes even before their necessary transiting functions.”

Most interestingly, the Solicitor General’s office, purporting to speak on behalf of the Federal Railroad Administration (“FRA”), took an extremely expansive position with respect to “in use.” According to counsel, the only time a locomotive would not be considered “in use” would be a situation where the locomotive has been drained of fuel and the battery has been

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TLA Feature Articles and Case Notes disconnected so as to render it inoperable.

No circuit court has applied such a broad interpreation.

In response, Union Pacific’s counsel maintained that these arguments had no basis in the actual statute or actual railroad operations: “It seems to me that Petitioner and the government are just rewriting the statute Congress wrote. All of this about draining fluids and unhooking batteries isn’t in the statute.” Union Pacific’s counsel also rebuffed Justice Kagan’s questions regarding interpreting the statute broadly as a preventative statute and contended that LeDure and the Solicitor General’s view would render meaningless the FRA’s safe harbor provisions for moving defective locomotives for repair.

Where Does “In Use” Stand?

The deadlocked Court left intact the Seventh Circuit’s finding that a train sitting on a sidetrack in preparation for departure is not “in use” under the LIA without clarifying which federal circuit court interpretation is correct and without providing guidance going forward.

At a moment in time where precision scheduled railroading, long trains, customer service, and worker safety dominate the headlines, the Court’s affirmance comes with a sigh of relief for the railroad industry after the potential for an expansion of strict liability under the LIA and the subsequent stripping of affirmative defenses for the railroad. If LeDure’s position had prevailed,

the result could have led to imposing strict liability, civil penalties, and increased costs and additional burdens on railroads, who have served a vital role in our nation’s overstressed supply chain. Particularly, railroads and contractors engaged in local switching operations have been spared from the additional costs and inefficiencies that could result from a strict liability scheme.

But the LeDure case certainly sounded the alarms for the future of litigation under the FELA, the LIA, the Federal Safety Appliance Act, and their respective negligence-based schemes. Practitioners on both sides of the track will undoubtedly find the arguments advanced in this case helpful in their briefing on this issue. And, for now, the success of these arguments remain dependent on which court you find yourself in.

Endnotes 1

142 S. Ct. 1582 (2022).

49 U.S. C. § 51 et seq.

3 49 U.S.C. § 20701 et seq. The LIA delegates authority to the Secretary of Transportation to create regulations governing the safe use of locomotives. Id. 4 The relevant language states that a “railroad carrier may use or allow to be used” on “its railroad lines” a locomotive “only” if the locomotive meets the statutory safety requirements. 49 U.S.C. § 20791.

5 Many courts consider the LIA and the Federal Safety Appliance Act (which contains the same “use or allowed to be used” provision as the LIA), to be amendments to the FELA because all three statutes share a “prime purpose, the protection of employees and others, by requiring the use of safe equipment.” Lilly v. Grand Trunk W.R.R. Co., 317 U.S. 481, 486 (1943); see also Urie v. Thompson, 337 U.S. 163, 189 (1949).

6 LeDure v. Union Pac. R.R. Co., No. 317CV00737JPGGCS, 2019 WL 399924, at *4 (S.D. Ill. Jan. 31, 2019).

7 177 F. 2d 221 (7th Cir. 1949).

8 LeDure v. Union Pac. R.R. Co., 962 F. 3d 907, 910 (7th 2020) (citing Lyle, 177 F. 2d at 223).

9 LeDure, 2019 WL 399924, at *4.

10 Estes v. Southern Pacific, 598 F.2d 1195, 1198 (10th Cir. 1979).

11 Id. at 1198–99.

12 Trinidad v. S. Pac. Transp. Co., 949 F.2d 187, 189 (5th Cir. 1991).

13 Id. 14 Deans v. CSX Transp., Inc., 152 F.3d 326, 329–30 (4th Cir. 1998).

15 Id at 329.

16 McGrath v. Consol. Rail Corp., 136 F.3d 838, 842 (1st Cir. 1998).

17 Id. 2

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CTLA Feature Articles and Case Notes

COVID-19: Case Law Updates and Developments for Transportation Employers Ben Aberant and Nicole Deniset*

Overview

After more than two (2) years of the COVID-19 pandemic, the case law continues to develop rapidly on a number of important issues in the employment context. Some of the issues that are particularly relevant and significant to transportation employers include mandatory vaccination policies, the impact of the COVID-19 pandemic on reasonable notice periods and the right of employees to refuse dangerous work.

This article briefly reviews and comments on three (3) recent decisions involving transportation employers that address the above-noted issues in the context of the pandemic.

Vaccination Policies

As most readers are no doubt aware, in the fall of 2021 the Government of Canada’s COVID-19 vaccination mandate for all employees and travelers in the federally regulated air, rail, and marine transportation sectors took effect.1 Specifically, this mandate required that employers in federal transportation sectors implement strict vaccination policies. In Ingrid Watson v Canadian Union of Public Employees, 2022 CIRB 1002 [Watson], the Canada Industrial Relations Board (the “CIRB”) ruled that a union was not obligated to grieve Air Canada’s decision to enforce the federal vaccine mandate. * McCarthy Tétrault LLP (Toronto, Ontario, Canada)

Air Canada initially announced on August 25, 2021 that it was implementing a mandatory vaccination policy, requiring all employees to be fully vaccinated by October 31, 2021. Air Canada further asked employees to report their vaccination status through a reporting tool no later than September 8, 2021.

Failure to be fully vaccinated could result in employees being placed on an unpaid leave or in termination (except for those employees who qualified for an accommodation). A group of employees, including a flight attendant (Ms. Ingrid Watson) expressed concerns with Air Canada’s vaccination policy and requested information from their union. The union stated its intention of filing grievances for individuals that faced discipline as a result of the policy. The union also obtained two legal opinions which confirmed that the vaccination policy would likely withstand a grievance.

On September 9, 2021, Air Canada emailed employees who had not already reported their vaccination status, indicating they needed to report their status or risk being placed on an unpaid leave without benefits. Ms. Watson’s counsel wrote to the union president and asserted that the union was acting in a manner that was arbitrary, discriminatory, and in bad faith with respect to the duty of fair representation owed to Ms. Watson and other members, and asking that it initiate a grievance against the Air Canada policy.

Air Canada denied Ms. Watson’s request for a medical exemption from the vaccination policy, and the union filed a grievance in this regard. This grievance was denied at step one of the grievance procedure and was forwarded to the union’s

grievance committee along with a number of other individual grievances. Ms. Watson brought a duty of fair representation complaint against the union for failing to bring a policy grievance.

Ms. Watson’s complaint was dismissed by the CIRB, which found that the union’s decision not to pursue a policy grievance was not arbitrary, discriminatory or made in bad faith. The union knew that certain employees objected to the vaccination policy, and provided regular information on developments, government announcements, and Air Canada’s actions. The CIRB further noted that “[t]he fact that the federal government issued an order directing the airlines to adopt a vaccination policy is a key distinction from other cases where employers were not bound by such a directive.”2 This observation is quite helpful for other transportation employers who also had to implement vaccination policies in response to the federal government’s directive to do so.

The CIRB commented that the union was not required to consult with every member to determine whether it ought to challenge a vaccination policy that impacted its membership in different ways.

The union’s decision was made in the interests of all employees in the bargaining unit, and it did not act in an arbitrary or discriminatory manner or in bad faith when it decided not to pursue a policy grievance.

Watson adds to a line of cases’ commentary on the efficacy and importance

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CTLA Feature Articles and Case Notes of vaccination in the workplace during the pandemic. In its unanimous decision, the CIRB noted as follows: The complainant and other members may be opposed to vaccination, but the scientific evidence overwhelmingly points to vaccination as the most effective tool to get us past these unprecedented global circumstances.

The union took a stance that is aligned with this evidence. A large majority of the membership supports the vaccination policy, as is demonstrated by the high vaccination rate amongst the employees in the bargaining unit. There is simply no evidence to suggest that the union acted in bad faith in adopting a position that supports and favours vaccination for its members.3 While helpful, the decision did not seek to determine if the union had made the correct decision in refusing to grieve the policy, but only if the decision-making process was fair.

Reasonable Notice Periods

As a result of the COVID-19 pandemic, travel declined significantly due in part to restrictions in Canada and elsewhere in the world. Many transportation employers in the aviation industry had to take extreme measures in response to these restrictions, including cutting their workforce. This is what occurred in Ruel v. Air Canada, 2022 ONSC 1779 [Ruel], where a long-time employee of Air Canada was terminated after 24.5 years of service.

In this recent decision of the Ontario Superior Court of Justice, the employee who was terminated in the summer of 2020 was awarded 24-months’ reasonable notice in full compensation of the loss of his employment. The Court recognized that COVID-19 had “significantly limited [this employee’s] prospects of reemployment in the airline industry“4 and that a downturn in the economy or in a particular industry or sector which would indicate that the employee may have difficulty finding

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another position may justify a longer notice period. However, the court concluded that even without taking into account the pandemic, the employee’s age (52 years old), nearly 25 years of service, and level of responsibility in his director position, justified a 24 month notice period.5 Other court decisions have further clarified that a terminated employee cannot simply point to the pandemic to justify a longer notice period. Rather, an employee must demonstrate that the impact of the pandemic has caused them specific difficulty in finding other comparable employment.

In Goetz v Instow Enterprises Ltd., 2021 BCSC 709, the plaintiff employee was employed by Kal Tire, an independent company that sells and services vehicle tires.

In assessing the reasonable notice period, the Supreme Court of British Columbia noted the following regarding the impact of COVID-19: Despite the COVID-19 pandemic, based on the evidence provided

by Kal Tire, there continue to be job postings for positions in the tire industry and in senior sales positions in other industries. The evidence does not support a limited availability of similar employment. Based on the evidence, I conclude that the availability of similar employment for someone with Mr. Goetz’s sales experience, in the tire industry specifically, and in a senior sales position more generally, is good.6 Therefore, while the employee in the Ruel decision received what is often considered as the upper limit of common law damages for reasonable notice (i.e. 24 months), it is important to remember that each case will turn on its own facts and the outcome will ultimately depend on the employee’s particular circumstances.

For example, according to the Canadian Trucking Alliance, the industry had already logged 23,000 vacancies by the end of last year (2021).7 As such, it would likely be much more difficult for a dismissed truck driver to argue that they are entitled to a longer notice period on account of the

COVID-19 pandemic (or otherwise) given the high number of vacant truck driving jobs available.

Right to Refuse Dangerous Work

Section 128 of the Canada Labour Code, (R.S.C., 1985, c. L-2) (the “CLC”) gives federally regulated employees the right to refuse work that they believe is unsafe to themselves or others. In Mcdowell v.

VIA Rail Canada Inc., 2022 CIRB LD 4715 [Mcdowell], a recent CIRB decision, a service manager for VIA Rail Canada Inc. (“VIA”) invoked her right to refuse dangerous work under the CLC in late December of 2020.

The employee in that case felt that since many provinces were under lockdown in response to COVID-19, VIA should not be serving food and beverages on board to passengers (since passengers could take their masks off to consume food and beverages).

She also stated that the lack of physical distancing with passengers made her feel unsafe. In response to the employee’s concerns, VIA proceeded with an investigation.

The investigation found that no danger to health and safety existed, as did an investigation by the employee and employer members of the workplace health and safety committee. Transport Canada also subsequently issued a no danger decision, finding that all guidelines as prescribed by Health Canada and Transport Canada with regard to public travel in Canada were in place.

Ultimately, the CIRB determined that there was no danger as defined in the CLC. No convincing evidence was provided that would suggest that the employee would be exposed to and develop COVID-19 as a result of acting in her service manager role.

The CIRB was of the view that, at most, the situation alleged by the employee revealed “a speculative possibility that the threat will materialize”. The CIRB commented as follows in its decision: There is no doubt that COVID-19 could reasonably be expected to cause a serious threat to the life or health of a person who is exposed to and contracts it. However, the question that the Board is faced

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CTLA Feature Articles and Case Notes with in this Application is whether Ms. Mcdowell’s acting in her role as service manager on December 29, 2020, where she would not herself be carrying out food and beverage service and walking through the cabin in which passengers may have removed their masks while eating and drinking, while she herself was wearing a mask, having the option to wear a face shield and a flock and having access to cleaning supplies and hand sanitizer, could reasonably be expected to pose a serious threat to her life or health.

Importantly, measures that VIA had in place at the relevant time included the following: • A checklist for health screening, authorization and exemption from mask wearing for passengers.

• A reduction in passengers on trains, where capacity was limited to up to 58 percent of regular capacity, and boarding passengers equally throughout the cars to ensure appropriate physical distancing between passengers.

• Employees on trains were provided with personal protective equipment (PPE) (including the option to get reusable three-layer masks or disposable masks, visors/goggles, flocks and/or gloves).

• Enhanced and more frequent

sanitization of trains. At strategic locations on trains, VIA also provided sanitizing products, which were approved by Health Canada.

• Employees and passengers were required to wear a mask in stations and on board of trains, at all times, except temporarily while eating or drinking.

Passengers were required to put their mask back on right after consuming food or beverages, and a failure to abide by the mask rules would result in an expulsion.

• Some food, beverage and other services were removed, suspended or reduced in order to reduce interactions with passengers and manipulations by employees.

• VIA installed high-performance heating, ventilation and air conditioning (HVAC) filters which were replaced every seven days, • VIA had designated a restroom for crew members exclusively to ensure their health and safety.

Mcdowell is a helpful decision for federally regulated transportation employers.

It suggests that where an employer has made real efforts to comply with guidance from applicable local health authorities, employees may not be entitled to refuse to work on the basis that it would be too dangerous because of the risks posed by COVID-19. This is especially so where the

employee’s allegations are based on speculation or hypothesis.

Key Takeaways

While most public health measures are now lifted and many sectors have fully reopened, several issues surrounding COVID-19 are likely to continue to be litigated for some time. The decisions discussed in this article are instructive for transportation employers and provide clarity on a number of key points. Namely: • Watson provides useful commentary on the importance of vaccination in the workplace during COVID-19. The CIRB specifically recognized the importance of the federal government’s vaccine mandate for federally transportation sectors when concluding that a union’s decision not to grieve a vaccination policy was fair.

• When an employee is terminated without cause, COVID-19 may justify a longer notice period. That said, the impact of the COVID-19 pandemic on a reasonable notice period (if any) will depend on the circumstances of each case.

• Where an employer takes adequate precautions that include policies, processes and procedures to address working in the COVID-19 environment, there is unlikely to be a serious threat which will entitle an employee to refuse dangerous work.

Endnotes 1 2 3 4 5 6 7

A s of June 20, 2022, federally regulated transport sector employers are no longer required to have mandatory vaccination policies in place for employees.

Watson at para 52.

Ibid at para 67.

Ruel at para 37.

Ibid at para. 38.

Goetz at para. 68.

C arl Clutchey Severe trucker shortage looming (February 5, 2022), online (Toronto Star): https://www.thestar.com/news/canada/2022/02/05/severe-trucker-shortage-looming.html?rf.

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CTLA Feature Articles and Case Notes

Status Report on the Successes in Using Foreign Ships to Lay Submarine Cables in Canada Jean-François Bilodeau*

Last year, I wrote an article for the Canadian Transportation Lawyers Association on the installation of undersea fibre-optic cables and the difficulty in using a foreign ship to install or repair undersea cables in Canada. In particular, I referred to the Alcatel Submarine Networks coasting trade applications and the Decision of the Canadian Transportation Agency issued on April 16, 20211.

Contrary to the message that might have been conveyed in the article, foreign vessels are regularly used in Canada to perform specialized transportation such as the live transportation of juvenile and grower salmon2; use of a mobile offshore drilling unit registered in Panama to undertake drilling services for the exploration and development of petroleum resources off the east/southeast coast of Newfoundland3; use of a dive support ship registered in the Isle of Man to complete the 2022 Subsea Project in the Terra Nova oil field4; use of the “IT INTREPID”, a cable ship registered in Barbados, to install, lay and bury a new undersea fibre communication cable between Sept-Îles and Sainte-Anne-desMonts, Quebec5; use of a seismic support ship registered in the Bahamas, to support the operations of a seismic research ship by facilitating crew changes and resupplying fuel, supplies, and equipment, off the east coast of Newfoundland and Labrador.6

In two instances mentioned above, IT International Telecom Barbados Canada Inc. applied to obtain a licence to use the “IT Intrepid” Barbados-registered ship to lay and bury and repair/replace underwater cables without any contestation being made to the application to use foreign vessels.

To contest the use of a foreign vessel under the Coastal Trade Act 7, an individual must demonstrate that a suitable Canadian ship is available to perform the activity described in the application. The suitability issue was reviewed in the recent Orange Marine decision issued on July 7, 20218.

Case Summary

Under the cited Coastal Trade Act, the Minister of Public Safety and Emergency Preparedness may issue coasting trade licences authorizing foreign ships or nonduty paid ships to conduct a specified commercial activity in Canadian waters for a maximum period of 12 months once the Canadian Transportation Agency (“CTA”) determines there are no suitable Canadian ships to perform the activity described in the application.

Orange Marine applied to the Minister for a licence to use the “RENE DESCARTES”, a cable-laying ship registered in France, with the intention of partnering with IT International Telecom Inc. (“IT Telecom”), a Canadian company, that would provide assistance with the proposed activity.

Horizon Maritime Services Ltd. (“Horizon Maritime”), in collaboration with ITB Subsea Ltd. (“ITBS”), a company situated in Burnaby, British Columbia, filed a contestation to the application and offered three Canadian-registered ships to perform the activity described in the application.

* Borden Ladner Gervais LLP (Montreal, Quebec, Canada)

The CTA analyzed the availability and suitability of the vessels presented by Horizon Maritime, pursuant to subsection 8(1) of the Act.

The Facts The “RENE DESCARTES” was going to be used to lay off two sets of fibre-optic telecommunication cables in the Alberni Inlet located in British Columbia as part of the Topaz submarine fibre-optic cable project linking Canada and Asia (the “Topaz Project”). The ship would have arrived in Victoria, British Columbia, from Kitakyushu, Japan, and then travel to Port Alberni, British Columbia, carrying 5,100 tons of fibre-optic cable, fibre-optic repeaters, a plough, and a remote operating vehicle (“ROV”).

Orange Marine intended to use the “RENE DESCARTES” to perform the entire work related to the Topaz Project, both within and outside Canadian waters. The applicant admitted it did not contact any Canadian shipowners, given the small cable-laying ship market and the industrywide knowledge about the availability of the Canadian ships.

The portion of the laying operation within Canadian waters subject to the Act was approximately 150 km in length.

Horizon Maritime and ITBS opposed the use of the “RENE DESCARTES” and offered the use of any of its three ships to perform the activity described in the application within Canadian waters.

Orange Marine took the position that the selected ship was capable of laying cable with plough burial, operating a ROV for post-burial operations, and installing branching units, capable of carrying 5,200 tons of cable for continuous laying from Canada to Japan, as required under the Topaz Project. It was alleged that the ability

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CTLA Feature Articles and Case Notes to carry 5,200 tons of cable was not a known capability of the Canadian ships.

The Position of the Parties Availability Orange Marine did not contest the availability of any of the Horizon Ships, but pointed to their lack of availability, as all of these ships were working abroad: the “HORIZON STAR” was flagged in Barbados and was working in the United Kingdom; the “HORIZON ENABLER” was flagged in Vanuatu and worked in the Gulf of Mexico; and the “HORIZON ARCTIC” flagged in Canada was working in the United Kingdom.

Further, Orange Marine challenged the availability of necessary equipment for the Horizon Ships to perform the proposed activity, namely the power-feeding equipment (“PFE”) and a full universal jointing (“UJ”) spread which would require a six to eight-month lead time to acquire.

Horizon Maritime responded that all of its ships would become available for the intended project and the two ships registered abroad would be reflagged to the Canadian registry which would not constitute a barrier to the contestation as outlined in previous CTA decisions.

Suitability Orange Maritime made several arguments supporting its view that the Horizon Maritime vessels were not suitable for the intended use and in particular referred to: 1. The conversion of the Horizon Maritime multipurpose ships for the cable-laying activity, particularly the requirement to carry 5,200 tons of cable for continuous laying from Canada to Japan.

2. The necessity to install PFE because of the cable in an active system with repeaters and active branching heads; 3. The cable had to be buried by plough on the Canadian continental shelf, which required complex systems: vehicle, towing winch, an umbilical winch, a commandand-control van, and a careful integration to conduct simultaneous cable laying operations.

4. The requirement that the ship be equipped with a full UJ spread with qualified jointers able to make joints during the installation if a repair is required without needing the mobilization of another ship; 5. Expertise to operate such complex systems; 6. Timing to make the vessels available and operational; and 7. Cost, as converting multipurpose vessels in cable ships is costly and complex which would render not economically viable the short Canadian scope of the project.

Decision Analysis

The onus is on the applicant, in this case Orange Maritime, to complete the coasting trade application and to provide sufficient detail for the Canadian industry to assess and respond to the application.

The Coastal Trade Act recognizes the interests of Canadian ship operators by permitting foreign ships to temporarily engage in coasting trade activities in Canadian waters, only if no suitable Canadian ship or non-duty paid ship is available to perform the activity.

Availability Horizon Maritime provided substantive rebuttal to this concern and the CTA accepted that Horizon Maritime could have the ships reinstated in the Canadian register in a matter of days and that their current work abroad would be concluded by July 2021.

Suitability Pursuant to the CTA’s Guidelines, the offered Canadian‑registered ship does not have to be “identical” to the proposed foreign vessel.

Moreover, the suitability of the Canadian-registered ship should not be determined in comparison with the foreign ship but assessed in relation to the technical and operational requirements of the activity, that is, whether the proposed ship is capable of performing the activity.

The suitability criteria may include: • commercial and economic suitability – what are the commercial (e.g., financial) and economic implications

of using the foreign ship versus the offered Canadian‑registered ship; and • technical and operational suitability – what are the technical characteristics of the ship and equipment required to operationally perform the proposed marine service or activity.

Orange Maritime argued the above criteria in rebuttal to Horizon Maritime’s response to Orange Maritime’s application.

Commercial and Economic Suitability The CTA recognized, as a matter of principle and consistent with the overall intent of the Act, that the operation of Canadian‑registered ships implies costs and operating conditions that are usually higher than for foreign ships. Evidence that is solely provided to show the higher cost of operating a Canadian ship is generally insufficient to establish that an offered Canadian-registered ship is not commercially and/or economically suitable.

In raising commercial and/or economic suitability the applicant must produce evidence that clearly demonstrates: • the necessity of using the foreign ship for the commercial viability of the proposed activity; and • that the higher costs of using an offered Canadian ship for the activity would render the activity commercially/economically unviable.

If the applicant produces such evidence, the offeror needs to challenge the applicant’s position by producing counterevidence in its reply to demonstrate that the use of a Canadian-registered ship would not render the proposed activity commercially and/or economically unviable.

In the present case, Horizon Maritime did not rebut Orange Marine’s arguments related to cost in its reply submission. The CTA recognized that the use of a second ship to perform the work in Canadian waters, that is, using one of the Horizon Ships when the “RENE DESCARTES” would perform the entirety of the work, would increase costs.

However, it was for Orange Marine to demonstrate that the costs associated with the use of one of the Horizon ships are unreasonable and would render the

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CTLA Feature Articles and Case Notes proposed activity economically unfeasible.

Orange Marine failed to make any submissions, aside from a general statement about “unrealistic cost.”

Technical and Operational Suitability Orange Marine raised a number of questions on the technical and operational shortcomings of the Horizon Maritime vessels: Issue 1 – Conversion for cable-laying activity The CTA accepted that the assistance of a third party (ITBS) by Horizon Maritime to provide the equipment necessary to convert the Horizon Ships would render the vessel able to perform cable-laying activities. The CTA has consistently held that a Canadian offered ship need not be identical to the proposed ship but only that the offered ship can perform the work.

Further, Orange Marine did not establish that any one particular slack management software system can only be used for this operation, nor that the installation of such software on the Horizon Ships is infeasible. In this regard, the CTA found that ITBS’ experience and success in performing cable-laying activities, combined with the fact that the Horizon Ships are outfitted with dynamic positioning software, are indicative of the capability of the Horizon Ships’ ability to provide the requisite navigation capabilities necessary to carry out the work.

Finally, the issue of whether the Horizon Ships are capable of carrying 5,200 tons of cable for continuous laying from Canada to Japan was not addressed by Horizon Maritime, nor was the requirement of such capability rebutted. The CTA indicated that it was important to note that if this were a key issue, Orange Marine, for its part, did not make pleadings in this respect when it had the opportunity to do so in its response to Horizon Maritime’s objection.

In light of the evidence made in the pleadings and supporting affidavits, the CTA found that that the Horizon Maritime ships could be outfitted for cable laying.

Issue 2 – Need for PFE Horizon Maritime contested the requirement for PFE, stating that it was not a listed requirement in Orange Marine’s

application but could nevertheless perform the requisite function with its equipment.

As Orange Marine’s initial application did not list PFE as a requirement, the CTA accepted the representations made by Horizon Maritime.

Issue 3 – Plough systems Orange Marine made general statements regarding the complexity of plough systems and the need for a towing winch, umbilical winch, and a command-and-control van. However, the applicant did not submit any information in the pleadings to indicate that the provision of such equipment by another party would be infeasible or unsuitable. The CTA therefore found that Orange Marine had not met its evidentiary burden of demonstrating that the Horizon Ships would be unsuitable to perform that task.

Issue 4 – UJ Spread The CTA consistently holds that an offered ship need not be identical to the proposed foreign ship, provided that it can perform the task at hand.

Orange Marine’s application made no mention of the requirement for a UJ spread, let alone substantiate the need for one.

While not ignoring the desirability nor the necessity of the functionality a UJ spread could provide, Horizon Maritime presented evidence to demonstrate that a similar outcome can and has been achieved in other projects using Horizon Maritime’s and ITBS’ equipment. On that basis the CTA found that Orange Marine had not met its evidentiary burden in demonstrating the necessity of a UJ spread.

Issue 5 – Expertise and Horizon Maritime Cable-laying operations that rely on equipment and expertise provided by a third party is not uncommon, and notably, Orange Marine itself proposed to do so with IT Telecom. While claiming that IT Telecom is the only Canadian company capable of implementing a telecom cable installation of the magnitude set forth in the application, Orange Marine did not provide any information to substantiate this claim, nor to justify the preclusion of the use of any other contractor.

The CTA, in a previous decision9,

reiterated that the question is the suitability of the offered ship and not experience performing the activity at issue. The Agency concluded that Orange Marine had not met its evidentiary burden in this respect.

Issue 6 – Timing Orange Marine did not provide any concrete evidence to substantiate or contradict Horizon Maritime’s submissions regarding timing and whether the Horizon ships would be onsite and ready to carry out the work in time for July 2021.

Determination

In light of the above, the CTA determined that there were Canadian ships available and suitable to perform the activity contemplated by Orange Maritime despite the fact the vessels were located in the Atlantic Ocean and would have to be relocated to the Canadian West Coast.

Conclusion

This CTA decision clarifies the requirements to licence foreign vessels to operate in Canada. Firstly, the decision implies that the initial application to use a foreign vessel should be as complete as possible and ought to include all the technical and operational requirements of the project.

The CTA found that for several items, the initial application was lacking in technical substantiation which was only included to respond to the contestation made by Horizon Maritime.

Further, the applicant must indicate and support with strong evidence the “must have” technical equipment and compulsory timeline. In the Maritime Orange decision, the CTA did not retain vague sentences on the use of specific equipment or the timeline requirement.

The need to use foreign vessels to lay or install undersea cable should be considered and planned in the earlier design stage of a project before tenders are issued to support specific technical needs or financial constraints. In this instance, one can imagine the additional costs the project will incur in paying for the mobilization costs relating to the travelling expenses for the Canadian vessels to sail from the East to the West Coast of Canada.

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CTLA Feature Articles and Case Notes Endnotes 1 2 3 4 5 6 7 8 9

Decision No. 27-W-2021.

Canadian Transportation Agency Determination No. W-2022-21.

Canadian Transportation Agency Determination W-2022-17.

Canadian Transportation Agency Determination No. W-2022-11.

Canadian Transportation Agency Determination No. W-2022-9 and W-2021-85.

Canadian Transportation Agency Determination No. W-2022-3 and No. W-2022-4.

S.C. 1992, c. 31.

Canadian Transportation Agency Decision No. 67-W-2021.

Decision No. 27-W-2021.

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CTLA Feature Articles and Case Notes

Alberta Court of Queen’s Bench Clarifies Carriers’ Rights to Random Drug and Alcohol Testing Pui C. Hong and Marie Boyd*

A recent decision of the Alberta Court of Queen’s Bench in Phillips v. Westcan permitted random drug and alcohol testing of long-haul drivers of dangerous goods, a decision that broadened the rights of motor carriers in implementing random testing for drivers. The Court stated that parties are free to contractually agree on conditions of employment so long as those conditions do not run afoul of employment standards, human rights and other applicable legislation. This is especially true when the express conditions of employment require an employee to agree to specific requirements, in this case, random drug testing.

The Court noted in Phillips v Westcan, that due to the enhanced safety risks of the employer’s business, the employer would be justified in “unilaterally imposing random testing on its drivers”1. Interestingly enough, this case did not turn on whether the employer had a right to engage in random drug testing, rather, the issue was whether or not submission to random drug testing as a condition of employment was enforceable.

Background

Mr. Phillips was employed by Westcan Bulk Transportation Ltd. (“Westcan”) as a driver hauling dangerous goods over long distances.2 He began is employment at Westcan in 2013, left, then returned to * Trimac Transportation

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Westcan in 2015.3 At the beginning of his most recent term of employment in 2015, Mr. Phillips refused to comply with the company’s random drug and alcohol test and applied for a permanent injunction to prohibit Westcan from randomly testing its employees for drugs and alcohol.4 Westcan has randomly tested safety sensitive employees since 1999.5 As part of its employment contract, Westcan’s Drug & Alcohol Policy states that all employees designated as safety sensitive, including company drivers like Mr. Phillips, are subject to random testing for alcohol and controlled substances.6 According to the policy, continuation of employment indicates acceptance of the policy.7 In addition, all employees are required to sign an expectation agreement which acknowledges their compliance with random drug and alcohol testing.8 Mr. Phillips participated in training in both 2013 and 2015, in which new employees were told that employees in safety sensitive positions were subjected to random drug and alcohol testing.9 The training program included an examination where Mr. Phillips correctly answered a question stating that safety sensitive employees are subject to random testing.10 In order to succeed in his application for an injunction, Mr. Phillips required an enforceable right to prohibit Westcan from randomly testing.11 After contemplating the issues of the case, the Court found against Mr. Phillips in this regard and his application for an injunction was dismissed.

Random Testing Was Agreed Upon

The first issue to be decided by the Court was whether random testing of

employees for drugs and alcohol was a term of Mr. Phillips’ employment contract. The Court found that Mr. Phillips had agreed to random testing, shown through his acceptance of the employment offer, which required compliance with the company policies.12 According to the Court, Mr. Phillips knew that Westcan’s policies included random drug and alcohol testing for company drivers since the expectation agreement expressly stated this and since he had correctly answered a question during training showing his knowledge of that policy.13

Random Testing as a Term of the Contract Was Enforceable

The Court then addressed whether random testing as a term of the contract was enforceable. Mr. Phillips relied on Communications, Energy and Paperworks Union of Canada, Local 30 v. Irving Pulp and Paper, Ltd. (Irving) to argue that random drug and alcohol testing is generally prohibited, unless there is evidence of substance abuse in the workplace or a similarly significant safety risk.14 Conversely, Westcan argued that the test from Entrop v.

Imperial Oil Ltd. (Entrop) can be used here to justify a workplace rule.15 The Court questioned the relevancy of the two cases to the situation at hand.

These cases did not address random drug and alcohol testing permitted by contract.16

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CTLA Feature Articles and Case Notes Instead, Irving questioned the right to unilaterally impose testing through a management rights clause of an agreement.17 Entrop in turn examined whether unilaterally imposed testing was justified despite its discrimination towards substance abuse victims.18 The Court found that both cases were not applicable to Mr. Phillips’ claim.19 To determine the enforceability of the term of the contract, the Court turned to the general common law rule of contracts; that an employee and employer are bound to the terms of the contract.20 The Court then found no unconscionability in a provision permitting random testing.21 This decision was based on the specifics of Mr. Phillips’ work, being the inherent danger of the work and materials being carried and the frequency of serious accidents.22 For these reasons the term of the contract was deemed enforceable.23

Random Testing Would Be Justified Even Without Inclusion in the Contract

Finally, the Court considered whether Westcan would be justified in unilaterally imposing random testing, without contractual agreement. This issue was addressed to provide a decision to the main submissions of the parties.24 The Court applied the Irving test, the more stringent of the two tests, and the requirements of the test were met.25 The danger of the work, the lack of supervision, and the prevalence of substance abuse in the workforce convinced the Court that random testing was a proportionate measure to the work being performed.26

Commentary

It is no secret that safety is an integral part of the transportation industry. However, safety can encroach on the individual rights

of employees. When considering drug and alcohol testing a balancing act is required when there is a conflict. Considering the inherent risk of hauling dangerous goods, random testing for drugs and alcohol seems to be a small price to pay to prevent injurious and even fatal accidents.

This case consequently broadens the rights of carriers in imposing random drug and alcohol testing. Although the Court made it clear that their reasoning is specific to the context of the case, this decision nonetheless permits carriers to enforce random drugs and alcohol testing through employment contracts.27 Going forward, this ruling may entice carriers to implement random testing by incorporating this condition into employment contracts.28 It is important to note, however, that employees must be informed of the policy for it to be enforceable.29

Endnotes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Phillips v. Westcan, 2020 ABQB 764, para. 6 (Can.).

Id. at para. 1.

Id. at para. 4.

John Gilmore & Tom Richards, Alberta Court Provides Guidance for Random Drugs and Alcohol Testing, BENNET JONES, https://www.bennettjones.com/Blogs-Section/Alberta-Court-Provides-Guidance-for-Random-Drug-and-Alcohol-Testing (May 4 2021).

Phillips v. Westcan, 2020 ABQB 764, para. 12 (Can.).

Id. at para 14.

Id. Id. at para 16.

Id. at para 21.

Id. at para 22.

Id. at para 1.

Id. Id. Id. at para 25.

Id. at para 26.

Id. at para 27.

Id. Id. Id. Id. at para 30.

Id. at para 32.

Id. at para 33.

Id. at para 34.

Id. at para 36.

Id. at para 46.

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Association Business

In Memoriam Tiffany Arend Campbell (1968-2022) Tiffany Arend Campbell, wife of long-time TLA member Stuart Campbell and frequent attendee of the Annual Conference, passed unexpectedly in February 2022 after contracting Legionnaires’ disease only a few weeks earlier.

Tiffany was born in Memphis, Tennessee, on August 12, 1968, to John and Trisha Arend and moved to Tulsa in 1971.

She graduated from Holland Hall in 1986 and then attended TCU where she graduated Summa Cum Laude with a social work degree. Tiffany used her social work degree and immediately began helping people find and place children in need of adoption with loving parents. She then attended Tulane Law School, again graduating at the top of her class, and started a legal career in family law using her kind and caring heart and desire to help people. She was a brilliant attorney, wonderful advocate, and always thoughtful and considerate with all parties involved.

Tiffany fell in love with her husband and raised three loving kids by showing them what it meant to be compassionate

and always gracious to others. They spent the next 20 years traveling the world, exploring, and loving every minute they had together. Tiffany’s other passion was giving, whether to charities or simply to people who needed a little help. She would do anything to support anyone and was a friend to everyone.

Tiffany is survived by her husband, Stuart Campbell; three loving children and their spouses, Sarah Campbell, Spencer Campbell and his wife Brooklyn, and Sawyer Campbell and his wife, Megan; her brothers, Dennis Arend and John J. and Zoe Arend; and her nephew, Patrick Arend, his wife, Shannon, and son Madden.

Services were held on March 1, 2022. In lieu of flowers, the family requested donations be made to either the Oklahoma Animal Alliance or Tulsa SPCA. Our sympathy goes out to Stuart, their children, and the rest of Tiffany’s family and friends. May she rest in peace.

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TLA

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Please print or type the following information: 1.

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Membership Section

MEMBERSHIP APPLICATION Contact Information/Coordonnees Name of Applicant Nom du requerant Date of Birth Date de naissance Company or Law Firm & Street Address Compagnie ou Societe, & Rue Address City, Prov, Postal Code Ville, Prov ou Etat, code postale Work Phone No. de telephone d’affaires Email Address Courriel

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En l’an ________, j’ai ete admis pour pratiquer comme advocat(e) par le Barreau de ______________________, et je suis un member en regle. Je suis implique et/ou m’interesse au droit du transport ainsi qu’aux reglementations et procedures qui s’y rapportent.

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Association Business

OCTOBER 13 – 15, 2022 The Omni King Edward Hotel 37 King St. E., Toronto, ON

ANNUAL GENERAL MEETING & EDUCATIONAL CONFERENCE

Save The Date!

Please see the Upcoming Events and CLE section of the TLA website at www.translaw.org for the latest information on these events.

2022

November

18

Transportation Law Institute Boston, MA

2023 January 19–20

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26-29

Chicago Regional Seminar and Boot Camp Chicago, IL TLA Annual Conference & CTLA Midyear Meeting San Diego, CA

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