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Nov 15, 2013 | Amy Agnew and William Allred

2013 Transportation Update

By: Amy Agnew and William Allred    


     The following contains updated statutes and cases regarding transportation issues so far in 2013:

     The following are two federal statutes regarding the hours of service for truck drivers as well as the issue of electronic logging devices for all commercial truck drivers. 

Federal Motor Carrier Safety Administration, 49 C.F.R. Parts 385-95

     At the beginning of 2012, the FMCSA announced changes to the regulations of the hours of service for truck drivers.  The FMCSA kept the 11 hour per day allowable driving rule favored by truckers, but it made other, less favorable changes such as the new limitations placed upon the 34 Hour Restart Rule, where drivers may restart the 60 or 70 hour clock on the maximum number of hours under which a driver can be on duty within a 7 day or 8 day window.  Under the new limitations, there can be only one restart within a week’s 168 hour time frame and the 34 hours must span two periods between 1 AM and 5 AM.  The changes became effective in July of 2013. 

Moving Ahead for Progress in the 21st Century Act” – 126 STAT. 405, P.L. 112-141

     On July 6, 2012, President Obama signed into law a new two-year transportation reauthorization bill, the Moving Ahead for Progress in the 21st Century Act.  This Act directs the FMCSA to write an electronic logging rule that would mandate electronic logging devices for all commercial trucks (effective two years after the final regulations are in place).  On October 1, 2013, the FMCSA issued a final rule adopting certain regulations as required by this bill. 

     Several statutes effecting the transportation industry were amended as a result of the 83rd Texas Legislature: 

Amendment to Section 108.52 of the Alcoholic Beverage Code: 

     HB 1917 amended Section 108.52 of the Alcoholic Beverage Code to allow advertising of alcoholic beverages on the outside of certain vehicles.  Specifically, it states that “[o]utdoor advertising of an alcoholic beverage or of the business of any person engaged in the manufacture, sale, or distribution of an alcoholic beverage may be placed on or affixed to the outside of a public transportation passenger vehicle, or vehicle for hire.”  However, any city or town may, by ordinance, prohibit this type of outdoor advertising.  This statute became effective on June 14, 2013.

Amendment of Section 724.017 of the Transportation Code: 

     HB 434 furthered the Legislature’s mission to reduce drunk driving by expanding the number of people who are authorized to take a blood specimen from a vehicle operator to test for alcohol or controlled substance concentration.  Now, any “medical technician” may take a blood specimen, including qualified police officials. This statute became effective on September 11, 2013.

Amendment of Section 601.053 of the Transportation Code: 

     SB 181 amended this section of the Texas Transportation Code to allow for a driver to provide proof of automobile insurance by images “displayed on a wireless communication device” such as a smart phone.  This statute became effective on May 24, 2013. 

     Also, there are a few recent cases that discuss issues relevant to the transportation industry:  

Carmack Amendment:

     The Carmack Amendment governs a motor carrier’s liability to a shipper, to a consignor, and to a holder of a bill of lading.  It also governs a motor carrier’s liability to persons beneficially interested in the shipment, even if the persons are not in possession of the actual bill of lading.  It further extends liability to buyers or consignees, or to assignees thereof, for the loss of or damage to an interstate shipment of goods. 

     Under the Carmack Amendment, a “carrier” or “motor carrier” is “a person providing motor vehicle transportation for compensation.”  See 49 U.S.C.A. § 13102(14).  The liability imposed under this paragraph is for the actual loss or injury to the property.  See 49 U.S.C.A. § 14706.

     Lexington Ins. Co. v. Daybreak Exp., Inc., 393 S.W.3d 242 (Tex. 2013):  Here, the Supreme Court held that the plaintiff’s two separate claims resulted from the same transaction or occurrence meaning that nether claim was barred by the statute of limitations.  Specifically, in this case, plaintiff’s insurer, who was subrogated to insured's claims, brought a claim for breach of settlement agreement against an interstate carrier for damage to computer equipment for which the insured paid.  The insurance company later amended its complaint to assert a claim against the carrier under the Carmack Amendment for damages to the computer equipment.  The Court held that the insurer's Carmack Amendment claim arose out of the same transaction and occurrence as the prior claim for alleged breach of settlement agreement.  The claim related back to the date insurer brought the breach of settlement agreement claim for purposes of the applicable statute of limitations.  The Court reasoned that both claims were based on the same damage to the same personal property.

Independent contractor’s authority to contract on behalf of trucking company: 

     Protect Envtl. Services, Inc. v. Norco Corp., 08-11-00303-CV, 2013 WL 1904821 (Tex. App.—El Paso May 8, 2013, no. pet. h.).  Here, the El Paso Court of Appeals held that a driver who was an independent contractor had sufficient authority to bind his trucking company employer to a contract for more than $10,000. Specifically, the driver contracted for the environmental clean-up of a gasoline spill which occurred after the driver’s truck was allegedly stolen and subsequently found in a nearby lake, leaking oil and gas.  The court found that the driver had apparent authority to contract on behalf of the trucking company because the driver had a telephone call with the trucking company where he appeared to obtain authorization to contract for the oil spill clean-up.  Moreover, the trucking company never disputed the invoice initially but only said that they would not pay such a high price.  Ultimately, there was enough circumstantial evidence to reasonably conclude that the driver had authority to bind the trucking company to the contract.