ALEXANDRIA, VA – The often used axiom “the cure is deadlier than the disease” surely applies to Rep. Petri’s SCAM recently introduced mover bill (Securing Consumers’ Assurance in Moving Act of 2003). The American Moving and Storage Association (AMSA) applauds the Congressman’s effort to address complaints against rogue (criminal) movers. However, as currently written, the part of the bill that would replace existing federal regulation of the interstate moving industry with the 50 states’ deceptive trade practices laws is much too broad.
In addition to the prospect of state prosecutions of legitimate movers for alleged violations of state deceptive practices law, the bill would encourage individual shippers to sue movers in state courts, alleging damages that will only be limited by the imagination of the plaintiffs’ bar. This bill also will authorize federal district courts to apply state law in actions to recover for loss or damage to goods posing the prospect to legitimate movers of unlimited liability for the goods they transport. This break with the traditional standard for measurement of loss or damage liability threatens the financial stability of the legitimate movers consumers depend upon to provide quality and professional interstate moves. And, unfortunately, a rollback of the long-standing loss and damage provisions of the so-called Carmack standard pertaining to loss and damage recovery will do nothing to curb the practices of rogue movers who ignore the law today and who surely will continue to do so in the future.
AMSA pointed out that opening up the loss and damage process to include recovery of unlimited pain and suffering and punitive damages would do nothing to curb scam movers, who typically possess no assets and who fold their tents and steal into the night any time legal action threatens them. Only legally-operating movers will become the targets of lawsuits, which amount to legalized blackmail when brought against small businesses that, in the vast majority of cases, will be forced to settle claims to avoid the expense of costly and frivolous litigation.
Other aspects of the proposed legislation aimed at attacking the hostage freight problem and requiring more and better information for consumers about Internet household goods broker websites may be helpful, if the problem is properly addressed.
This week AMSA will petition the Department of Transportation to institute a rulemaking proceeding to require Internet brokers of household goods to provide even more information than would be required by Rep. Petri’s proposal (see attachment). AMSA firmly believes that consumer education is one of the more effective ways of combating the scam mover problem.
AMSA insists that increased enforcement by the federal government and increased consumer education are the most effective means of dealing with illegal operators. This legislation will not discourage the activities of scam movers who pay no attention to current law or regulations. AMSA would support legislation that authorizes states to prosecute the following types of operations:
- Licensed interstate movers that allow their insurance to lapse.
- Licensed interstate movers that do not participate in a loss or damage dispute settlement program.
- Licensed and unlicensed interstate movers that willfully refuse to relinquish possession of shipments (hostage freight) in violation of the 110% of estimated charges regulation, including authority to seek injunctions against those that demonstrate a pattern of violations.
- Licensed brokers of household goods services that disregard consumers’ rights by arranging transportation using unlicensed carriers or licensed carriers that fail to comply with the regulations of the Federal Motor Carrier Safety Administration and the Surface Transportation Board.
AMSA President Joe Harrison said, “The legitimate moving industry is committed to working with Congress to eliminate scam movers and to educate consumers on how best to select reliable professional movers to handle their relocation needs”
Harrison added, “It would be a grave disservice to the relocating consumer to economically devastate the very movers consumers need to rely upon, in the hope that states and individuals will be able to enforce laws and regulations that scam movers have no intention of following.”
“The part of this bill that would eliminate the well-established and functioning loss and damage liability standard for freight transportation is a trial lawyer’s dream and every freight hauler’s nightmare, and it would devastate the legitimate moving industry, most of which consists of small, family-owned businesses operating on paper-thin profit margins.”
The American Moving and Storage Association, headquartered in Alexandria, Va., is the national trade association representing the nation’s moving and storage companies, which provide household goods moving services, specialized transportation for sensitive freight such as computers and trade show exhibits, and warehouse storage services.
With 3,600 members, including 500 international members, AMSA programs and activities promote consumer protection, professional development, safety and operational efficiency.
Courtesy American Moving & Storage Association
(1) Add to definitions at 49 C.F.R. § 371.2:
(e) “Household goods broker” means a person who, for compensation, offers for sale, or makes or holds himself out to make any contract, agreement, or arrangement to provide, procure, furnish, or arrange the transportation by motor carrier of household goods and/or any related service as defined in 49 U.S.C. 13102(10)(A) and (19); provided, however, that motor carriers, their employees, or their bona fide agents are not household goods brokers within the meaning of this section when they arrange the transportation of shipments which they are authorized to transport and which they have accepted and legally bound themselves to transport.
(2) Amend definition of brokerage service in paragraph (c) to include the transportation of household goods by adding after the word “property” the phrase “or of household goods”.
(3) Add to definitions:
(f) “C.O.D. or individual shipper” means any person who is the consignor or consignee of a household goods shipment, is identified as such in the bill of lading contract or other similar contract, owns the goods being or to be transported, and pays for their transportation.
Add the following section: § 371.14. Transportation of Household Goods.
(a) Applicability. In addition to the foregoing requirements, the following rules also apply to household goods brokers in their dealings with and on behalf of C.O.D. or individual shippers.
(b) In any transaction subject to this part, each broker shall disclose its capacity as a broker, that it is licensed by the FMCSA, its registration number, the name in which its registration is issued, its current address and telephone number.
(c) In any transaction subject to this part, no broker shall procure, arrange, furnish, or refer the services of a motor carrier that is not authorized by the FMCSA to provide or participate in the transportation of household goods at or between the places where service will be performed. The broker shall disclose the name and FMCSA registration number of each carrier participating in the shipment or referred to the shipper.
(d) Prior to the execution of any agreement by a C.O.D. or individual shipper, each broker shall furnish to such shipper the following information either in written form or electronic form that can be reproduced in printed form:
(1) the contents of Publication OCE-100, Your Rights And Responsibilities When You Move;
(2) an explanation of any carrier limitations of liability for loss or damage that may or will govern the shipment; and
(3) an explanation of the availability of arbitration to resolve certain disputes with respect to shipment loss or damage.
(e) Every estimate or statement of charges shall be in writing and shall separately itemize the charges for linehaul transportation, packing, unpacking, valuation, and storage. If a commission is paid by the carrier to the broker, the commission shall also be stated separately. The estimate or statement of charges may be furnished in an electronic form that can be reproduced in a printed form.
(f) Any estimate of charges that is given to a C.O.D. or individual shipper without a physical survey of the goods shall recite that no survey has been performed and shall only be given following an express waiver by the shipper of a physical survey.
(g) If an estimate of charges is provided to a C.O.D. or individual shipper that is non-binding, the broker shall advise the shipper that the carrier’s actual charges may be higher than the estimate based upon the actual weight of the shipment, but that the carrier may not demand payment in excess of 110 percent of the estimated charges at delivery. The broker shall explain to the shipper the terms governing the extension of credit and that the shipper remains liable for the payment of all carrier charges.
(h) If a guaranteed binding estimate of shipment charges is provided to a C.O.D. or individual shipper, the broker shall specify in writing the services to be performed by the carrier and that the charges are binding on the carrier and the shipper.
(i) Any broker who requires payment of a deposit or any other sum of money in advance of performance of the transportation service shall provide a written statement identifying the party(s) to whom such monies are distributed and the circumstances in which any such payments may be forfeited in whole or in part. The statement shall also explain the procedure for obtaining refunds in cases where the request for service is cancelled. Refunds shall be issued promptly and in no case later than 30 days from the date the shipper gives appropriate notice of cancellation.
(j) Every broker shall disclose to shippers and carriers the existence of its surety bond or trust agreement required by law.
(k) Every broker shall identify and disclose to C.O.D. or individual shippers the regulations in this part.
(l) Failure to comply with any requirement contained in paragraphs (a) – (k) shall constitute an unreasonable practice under 49 U.S.C. § 13701 (a).
(m) If a dispute arises between a shipper and a carrier procured or referred by a broker under this Part as a result of the carrier’s violation of the regulations contained in Part 375 of this Title, the broker shall give notice of such violation to the Federal Motor Carrier Safety Administration.
(n) Every broker shall fairly protect the interests of any C.O.D. or individual shipper employing its service and shall assist such shippers in resolving disputes with the motor carrier providing the transportation service. A broker shall not misrepresent, make false promises,, or engage in unfair or deceptive practices at any stage of a transaction with a shipper or carrier.