What to Watch: Insurance, Regulatory Changes for Freight Brokers and Forwarders
By Glenn Patton, Managing Director, Roanoke Insurance Group Canada, Inc.
The following are several important issues regarding the insurance industry and regulatory changes that impact freight brokers and forwarders. With so many Canadian freight brokers and forwarders conducting cross-border business, U.S. regulatory changes affect the entire industry.
Nuclear verdicts in liability cases in the U.S. involving motor carriers have included freight brokers
Nuclear verdicts against trucking companies in the U.S. have reached tens and hundreds of millions of dollars in the past decade or so. In their lawsuits, plaintiffs in accidents with motor carriers have named all parties involved in the supply chain. Freight brokers have been found vicariously liable for the actions of their motor carriers despite not being responsible for moving cargo. The Federal Aviation Administration Authorization Act (FAAAA) contains a provision barring common-law negligence claims against a freight broker based on the broker’s motor carrier selection. However, under statutory state laws, several cases have been argued where the freight broker was found liable.
For example, over a decade ago, a jury found a freight broker vicariously liable for its motor carrier’s truck-on-passenger vehicle accident, which resulted in multiple fatalities. The $23.8 million verdict was levied against the broker and its motor carrier. The jury asserted that the broker exercised excessive control over the motor carrier’s actions in providing loading instructions, rerouting drivers and imposing fines for later deliveries, among other actions, including representing itself as the motor carrier’s partner.
A few years later, a jury awarded $1.67 million in punitive damages against a freight broker in a wrongful death case involving its motor carrier. The jury found that the broker was responsible for the actions of its motor carrier’s negligent driver, who had fallen asleep at the wheel. They had failed to ensure that the carrier had liability insurance, breached its broker-shipper agreement and engaged in sloppy recordkeeping.
In the wake of these and other similar cases tried under state statutory laws, the contingent auto liability insurance market has been impacted, limiting availability for freight forwarders and brokers to protect against these types of losses. Many U.S. carriers stopped providing contingent auto liability coverage.
Some good news: The tide is turning
In recent cases, however, U.S. courts have denied freight broker responsibility in motor-carrier-related accidents, citing the FAAAA provision. For example, in a July 2023 case, the 7th Circuit Court of Appeals found that a liability claim against a broker was “expressly barred by the FAAAA’s preemption provision.” The freight broker’s hired motor carrier collided with a motorcycle driver, who died in the crash. The deceased’s wife asserted a negligent hiring claim against the freight broker.
Although far from settling the issue of broker liability, the 7th Circuit and other appellate decisions provide an opportunity for freight brokers to argue cases in a more-friendly environment under the FAAAA’s preemption provision and not state tort law. They also offer an opportunity for insurance companies to re-enter the contingent auto liability insurance market. Insurance companies will start fighting cases and using the appellate court decisions as arguments instead of settling.
Impact on Canadian brokers
While Canada imposes a cap on liability limits and does not experience the type of nuclear verdicts awarded in the U.S., many Canadian freight brokers conduct cross-border business and could have vicarious liability exposure. Insurers in Canada are now re-evaluating hired auto coverage (the equivalent of contingent auto liability), as they could be impacted by cases in the U.S.
Double brokering continues to be a massive issue in the insurance industry
According to FreightWaves, “fraudulent double brokering has emerged as one of freight transportation’s most pervasive problems in this freight cycle. By one estimate, it affects $500 million to $700 million in freight annually.”
Double brokering involves a motor carrier rebrokering a load to another carrier without the knowledge or approval of the freight broker or shipper. This disrupts operations and exposes the industry to considerable financial and liability concerns.
On the insurance side, many contingent cargo and all-risk cargo policies exclude coverage if the broker does not hire the motor carrier that picks up the freight. Brokers could be held liable for these losses without coverage.
A freight broker’s contractual agreement with motor carriers should include provisions precluding load transferring without the broker’s consent. Additionally, we recommend that brokers ask their shippers to match MC numbers and check VIN numbers of the trucks to verify the carrier.
Insurers are being more specific about motor carrier vetting procedures
Insurance companies have become increasingly stringent in requiring information on freight brokers’ motor carrier vetting procedures. Insurers want details about how brokers vet their carriers and are requesting copies of broker-carrier agreements to review carrier responsibility for specific incidents.
Some insurers will factor in premium discounts for brokers that use a third-party company to vet their motor carriers.
Insurers want to see a distinct separation between a freight forwarder’s asset- and non-asset-based sides of the company
Many freight forwarders own trucks (asset-based) and have a logistics service division (non-asset). They operate their trucks and act as freight forwarders. Because of the liability imposed on motor carriers in the U.S. for cargo damage or loss, insurers want to see a clear delineation between the two assets, with, for example, different entity names and separate websites.
There have been claims against freight forwarders for cargo losses for the full value because both company entities fall under the same name.
Freight brokers are increasingly offering all-risk cargo insurance to clients in lieu of relying on motor carrier coverage for losses
Offering clients all-risk cargo insurance helps freight brokers expedite the claims process and retain their customers. While brokers carry contingent cargo insurance for cases where the motor carrier’s insurance does not pay for cargo loss, this can create bottlenecks and headaches in the claim process. With cargo insurance, a shipper will get paid for a covered loss within a reliable time frame and at full value. Most insurance providers offer real-time quotes.
The U.S. Federal Motor Carrier Safety Administration (FMCSA) recently published its final rule for a freight broker/forwarder’s financial liability
The new rule states that freight brokers and forwarders must maintain a $75,000 surety bond or trust in readily available assets. It also defines their responsibility, what is and isn’t acceptable, and when the FMCSA can revoke authority when proper financial security is not in place. Readily available assets are limited to cash, irrevocable letters of credit issued by federally insured depository institutions and U.S. Treasury Bonds.
The FMCSA has initiated a proposed rulemaking, Transparency in Property Carrier Broker Transactions, in the face of trucker protests over alleged freight broker overcharges
In response to truckers’ demands, under the FMCSA’s proposed rulemaking, Transparency in Property Carrier Broker Transactions, brokers must disclose transaction information to motor carriers, including the name of the shipper and shipping charges, within 48 hours of completing contractual services with the shipper.
The Transportation Intermediaries Association (TIA) has petitioned against the rule; however, the FMCSA appears set on adopting it. At risk is confidential information, including the shipper’s proprietary information, which could be disclosed to competitors. Many brokers have NDAs with their customers that preclude them from passing information to third parties. In addition, motor carriers could solicit shippers directly.
We encourage the broker community, including in Canada, to contact the U.S. Congress to discuss the importance of its role in the logistics industry and the impact this rulemaking would have on it. A notice of proposed rulemaking is set for October 31, 2024.
Roanoke Insurance Group Canada Inc. is a specialty insurance broker that provides insurance and surety bond solutions to logistics service providers, customs brokers and companies managing supply chains. It offers CIFFA members preferential rates on broker bonds.
Disclaimer: This information is provided as a public service and for discussion of the subject in general. It is not to be construed as legal advice. Readers are urged to seek professional or legal guidance from appropriate parties on all matters mentioned herein.
Logistics payments and data infrastructure platform PayCargo has announced a new investment of up to $130M from funds managed by Blackstone Growth. Blackstone Growth’s investment will support the company’s continued expansion both domestically and internationally, development of new products, as well as potential growth opportunities through M&A, the company said.
PayCargo’s cloud-based payments network enables payers to quickly and securely pay air and ocean carriers, maritime ports, ground handlers, freight forwarders, and customs brokers, among others, the company said. PayCargo integrates with over 50 Transportation Management Systems (TMS), Enterprise Resource Planning (ERP), and Terminal Operating Systems (TMS) entities across various transport modes: Ocean, Air, Rail, and Trucking. Today, PayCargo’s network of more than 40K businesses is an independent payment platform focused on expediting the movement of cargo in North America and is rapidly expanding in Europe and other geographies.
PayCargo continues to invest in software updates, development, and enterprise-grade security to support this hyper-growth. PayCargo’s innovative new tools include advanced real-time customer reporting and invoicing, new workflow tools to streamline partial payments and reconciliation, advance payments, and automated refunds in any currency said the release.
“PayCargo is a category leader, operating at the intersection of several of our highest conviction investment themes – including the continued proliferation of electronic payments, the digitization of the supply chain, and the modernization of business-to-business payments,” said Vini Letteri, Senior Managing Director and Head of Financial Services for Blackstone Growth. “We believe that these attractive tailwinds, combined with the strength of PayCargo’s offering, positions the company well for its next phase of growth.”
Blackstone, through its private equity, infrastructure, and real estate businesses, has invested significantly in the broader logistics, supply chain, and e-commerce space, including acquiring a port operator in North America and over 1.1M sq ft of warehouse assets globally. “Our partnership with Blackstone plays an important role in furthering our commitment to transforming the movement of goods and fostering increased efficiencies through PayCargo’s payment platform. Like Blackstone, we share the same mission and vision- serving the needs of our customers by building the largest independent freight payments network. Blackstone’s experience in the logistics, supply chain, and e-commerce space, will be invaluable for PayCargo as we continue to expand globally,” said Eduardo Del Riego, PayCargo CEO.
Smart Play Distribution is pleased to announce the offering of bonded and sufferance warehousing services to clients in Vancouver, the Fraser Valley and throughout the Lower Mainland.
The warehouse is strategically located in Langley, British Columbia, which is well positioned for rail and truck based transportation, as well as being close to major Vancouver ports. This location is ideally situated for distribution across the US and Canada. With truck and rail, easy to source freight rates are substantially lower for shipments bound for destinations across North America.
To learn more, visit www.smartplaydc.com, or 1-800-951-7230
CIFFA Associate member Logixboard, https://www.logixboard.com/, a customer experience platform for freight forwarders and logistics service providers, has raised $32M in a Series B round led by New York-based global private equity and venture capital firm Insight Partners, with continued participation from Redpoint Ventures, F-Prime Capital, Social Leverage, Founders’ Co-op, and other existing investors.
Logixboard will use the new funds to enhance its all-in-one customer experience management platform and to triple its headcount with a focus on its engineering team. The company plans to introduce a suite of new features that have been directly requested by freight forwarders and logistics service providers including: expanded partnerships and integrations with leading freight forwarding software; payments processing; enhanced shipment tracking data; and order and booking creation and communication.
Logixboard says its platform makes it possible for freight forwarders to collaborate with their customers on everything from invoicing or exchanging messages, to sharing real-time shipment locations. These activities happen inside a white-labeled, tailored platform that is uniquely branded for each customer.
Logixboard integrates into existing software, requiring minimal changes to operational processes so that the final product can be end-user-ready in just a few weeks. “We’re proud to swiftly follow up last year’s Series A announcement with this latest round because we’ve seen immense growth, with a 900% percent increase in shippers using the platform and see a huge opportunity to introduce new functionality that will help our customers thrive,” said Julian Alvarez, CEO, and co-founder of Logixboard.
“In response to the ever-increasing volume of shipments moving through our system, we will soon offer payment processing on our platform. This will be one of the first fusions of fintech and supply chain technology. End-users will spend less time toggling between various apps and services to get their jobs done, and freight forwarders will have a stickier product experience to further increase their customer retention in a highly competitive market.”
“We see Logixboard’s technology as not just a best-in-class technology solution to help freight forwarders modernize their customer experience offerings, but as an integral part of the supply chain ecosystem that will help move the industry far past decades of stagnant technology. We’re excited to partner with Julian and the team at Logixboard as they continue to digitize an industry and scale,” said Teddie Wardi, Managing Director at Insight Partners.
Logixboard also has a dedicated Product and User Experience Research Team focused on analyzing shippers so that the company can develop products to help freight forwarders better serve their customers.
In response to the strain on container capacity in the Trans-Pacific, CIFFA member Pinnacle Logistics Solutions has initiated a time charter to service the China–Pacific Northwest corridor for the calendar year 2022, with the maiden voyage to take place in February, after the Chinese New Year.
The company said the service represents an opportunity for forwarders and shippers who are able to act swiftly to secure capacity. The vessel is expected to make a turn every 45 days, and integrated container solutions are available, including inland deliveries and container termination. In addition, this vessel is geared and capable of transporting breakbulk cargo. To learn more about this opportunity, reach out directly to Vice President of Sales for Pinnacle Logistics Solutions, Aaron Gerber, at aaron@pinnaclelogistics.ca
Guy Tombs Limited held its 100th anniversary celebration December 1 in Montreal, themed “Welcome New World.” The event featured speeches, door prizes, music and refreshments.
Guy Tombs Limited’s first day of business was December 1, 1921. Founded by Guy Tombs (1877-1974), the company has provided international freight forwarding service from its inception.
Here is a transcript of the speech delivered by Guy Tombs at the event. Delivered at les Salles de Bal Windsor – Dec. 1, 2021
BIENVENUE À CE NOUVEAU MONDE
WELCOME NEW WORLD!
Good evening, ladies and gentlemen. I am Guy Tombs. Exactly 100 years ago today on December 1, 1921, Guy Tombs Limited opened its doors on Beaver Hall Hill. For many years I have wanted to hold an event on this evening in this place. We are so happy you have joined us tonight. We are thinking about our associates and colleagues of many years. We are also reconnecting this evening for the future, taking strength from friendships, and from each other’s experience and resiliency.
On entering this beautiful hall you saw the words in different languages saying, “Welcome New World”. Why am I saying New World? What New World? It is my belief that the cataclysm that we have been living through has forced us to redefine the global picture in many ways. Many of us have taken stock, especially during the self-isolation periods. We have had to re-assess our lives and our organizations. We want to make things better. We want to broaden our horizons.
During and after the lockdown periods here and around the world, people of every nationality have reflected on and debated the vital issues we are facing. The pandemic has exacted a terrible toll on the world. But with reverses of fortune there are, and will continue to be, many lessons learnt. I know that from our company’s long history. Thank-you for having faith in us and for being here.
What is Welcome New World? It means we welcome New Realities. But it ALSO means that we want the new world to welcome us, to accept us, to respect us and our contributions. Many of us have felt, during this time, that we have been starting from scratch. We have had to master new skills. In many cases we shut down and then re-opened. We have watched the drama of the global pandemic in every country with concern and compassion.
This was the Ballroom of the Windsor Hotel. The Windsor Hotel was where the most powerful people in the transportation industry would gather and make big decisions. Guy Tombs Limited had its 25th Anniversary celebration here in December 1946. I remember my grandfather Guy Tombs proudly treating our family to a nice supper at the hotel’s restaurant when I was seven.
I have asked myself TWO key questions over the past year many times, thinking ahead to this evening: FIRSTLY – How did we do it? How did we survive and prosper over these 100 years? I believe that when thinking long term, off into the future, it is very important to always go back to first principles. We must think back to our starting point to understand how to get to our destination. It is not all about goals – it is about who you are and what you are made of. This is important for all the members of our team.
And SECONDLY – How does one develop a long-term vision? A business life can be humbling. We learn much more from our failures than from our successes. Business rewards success and seems to penalize failure. But business is also about converting shocking failures into remarkable successes. There is over time a rhythm to these events, a way of building recovery from failure. Where we want to be in 5 or 10 or more years is worth imagining NOW. When we look at the future like this, NOW looks very different. A vision requires imagination. However, it all comes down to people – which is why we are here tonight. Why do we care so much about the people we relate to each day?
Спасибо – Merci – Thank-you
Cette célébration nous donne l’occasion de renouer avec nos amis, nos collègues et bien sûr d’afficher le fait que nous sommes prêts pour un futur aussi plein d’énergie que dans le passé. En entrant dans cette salle magnifique, vous avez sans doute lu <<Bienvenue à Ce Nouveau Monde>> . Pourquoi <<Nouveau Monde>> ? Voici l’explication du titre de notre soirée: <<Bienvenue à ce Nouveau Monde>>. Au fait, on acquiesce la venue de Nouvelles Réalités. Mais on veut aussi continuer à nous faire respecter pour tout notre travail et notre contribution.
Plusieurs d’entre nous avons eu parfois le sentiment de retourner à zéro pendant cette pandémie, mais nous avons pu contourner ces temps de défi devenant plus forts et plus efficaces pour trouver des solutions. Nous sommes dans la Salle de Bal de l’Hôtel Windsor. Cet endroit historique de Montréal était le lieu où d’importantes décisions ont été prises au sujet de transport. Je me rappele aussi que mon grand-père avait invité toute la famille au restaurant de l’Hôtel quand j’avais sept ans.
Pourquoi portons-nous une attention particulière aux gens que nous cotoyons chaque jour ? Les personnes de qualité qui font partie de notre entourage quotidien, en qui nous avons pleine confiance, est d’une grande importance. De toutes façons, ce qui compte, ce sont les gens, notre entourage, et c’est pour ça que nous sommes ici ce soir.
CN has partnered with COSCO and the DP World Fairview Container Terminal at the Port of Prince Rupert on a priority train service enabling high demand goods to get from Shanghai to key markets in Canada faster than any other industry offering, the companies said.
Thanks to low congestion at the port and strong terminal fluidity, the Port of Prince Rupert offers a strategic advantage to shippers. This deep-water port is located 500 nautical miles closer to Asia than any other west coast gateway, enabling faster transit times while also offering benefits such as berthing on arrival and industry-leading low dwell times.
“While Rupert offers the strategic advantage in terms of being closer to Asia, the priority train compliments the shorter ocean transit with equally faster inland movement leading to a far better end-to-end supply chain model,” said Dan Bresolin, Vice President, Intermodal at CN.
COSCO’s new CEN express service is targeted towards BCOs with a direct call to Rupert from Shanghai and Qingdao. The priority train service enables expedited furtherance of Toronto traffic from COSCO’s CEN service to rail without on dock dwell. The single destination-bound train leverages CN’s network and velocity to deliver faster transit with minimal train stops, the companies said. The first Toronto priority train departed Prince Rupert on Nov 1st with containers that got discharged from the COSCO vessel – Xin Chong Qing.
With supply chain delays impacting customer buying cycles, the priority train service is intended to allow for a more reliable and consistent transportation solution between Asia and key consumer markets in Canada, said the companies’ statement.
(Image courtesy CN Rail)
Courtney Agencies, a customs brokerage and freight forwarding business based in Vancouver has become the 300th organization in BC to signify their commitment to ending working poverty by certifying as a Living Wage Employer.
The living wage is the hourly amount a family needs to cover basic expenses. The calculation is based on a two-parent family with two children – the most common family unit in BC – with each parent working full-time. The Living Wage for Metro-Vancouver is currently $19.50 an hour but is due to increase in November.
“Courtney Agencies has been in business since 1955 when a cup of coffee cost 30 cents. Today’s cost of living is impossibly high and we are proud to pay a Living Wage. We build career paths and cross training so junior staff can build their skills quickly. We promote and pay for industry education so staff can earn their customs and freight certifications which also helps improve their wages at a solid pace. Thank you to Living Wage for Families BC for inspiring us to come up with a plan and make it happen. Paying a Living Wage is a key step on our pathway to become a Certified B Corporation,” said Virginia Weiler, Vice President of Courtney Agencies.
Low-income earners tend to spend proportionally more of their income than those with much higher incomes, because those with low incomes have more essential spending needs. Those with lower incomes also tend to spend more money locally. This will help strengthen small and community-focused businesses in BC.
“We’re delighted that Courtney Agencies has become our 300th Living Wage Employer. With a labour shortage occurring across BC, many employers are finding paying a Living Wage an important tool in recruiting and retaining their staff. Paying a Living Wage is good for the employer, the employee and the local community. We invite other employers to join the Living Wage movement,” said Anastasia French, Living Wage for Families BC.
Certifying as a Living Wage Employer is a voluntary commitment employers make to invest in their communities and local economies. They commit to pay their direct and contracted staff a Living Wage.
Based on the success of its initial voyage in 2021, Hamilton Container Terminal (HCT) announced it is heading into phase 2 of building infrastructure for a weekly short sea service between Hamilton and Montreal. This weekly service will commence in April 2022. HCT intends to carry 650 TEUs on a weekly basis under this service. The company said it expects to save 500,000 MT of carbon emissions over the next ten years under the service. HCT’s trucking division is fully bonded and able to move containers between two bonded locations within Ontario.
TORONTO, October 19, 2021.
Last week the Minister of Finance told reporters she was watching Canadian trade flows, looking for signs of “strain” but so far, didn’t see them.
This came as a shock to our membership at the Canadian International Freight Forwarders Association (CIFFA). The Canadian supply chain is experiencing “strain” as we have never seen it before. We are dealing everyday with the congestion and chaos that is snarling our ports and frustrating retailers and other customers. Costs have doubled – or worse compared to pre-pandemic levels. Many operators are paying extraordinarily high penalties because they cannot move containers in and out of the ports in a timely manner.
So the Finance Minister’s comment was a little like going to the doctor to be told you are not really feeling that pain. No one blames Ms. Freeland or her government for not solving all the problems. But we would certainly appreciate some effort. Doing nothing is not an effective response.
This is an intensely stressful time for the people who move the goods Canadians need and want. Retail products get all the attention, but Canadian goods producers are also suffering as their input components are delayed. We’re so used to hearing that the “global” supply chain is disrupted that we seem to be pretending all the problems are caused outside Canada. But we badly need leadership to solve the problems that arise here in our own country.
The supply chain in is a very complex system-all the different parts must work in concert.
Unfortunately, when the system becomes as constrained as it is today, there is no natural mechanism to bring it back into order. Every player – shipping lines, warehouses, truckers, retailers, importers, exporters, terminal operators, ports, freight forwarders, rail carriers- has measures they could take to improve the situation, but these measures only work if coordinated with all the other players. No one segment of the chain can incur extra costs, work longer hours, etc. if the rest of the chain isn’t matching those efforts.
U.S. President Biden recently visited a California port to announce exactly this kind of all-hands effort to attack the huge problems that are frustrating consumers, threatening serious losses for retailers and snarling ports, truck terminals and railroads.
The U.S. President took action – securing agreements from ports, trucking firms, labour unions to make an emergency effort to address the crisis. Ports have committed to working 24 hours a day, every day, to clear the backlog. Truckers have agreed to extended hours of operation. Warehouses will extend evening hours. Retailers will commit to operating at off-peak hours. Each part of the chain will make adjustments to meet the crisis.
There are no simple fixes. Consumer behaviour changed dramatically during the pandemic. Canada’s infrastructure is not adequate for the pressures currently on it. Canada’s “gateway” strategy is incoherent and slow. But with some leadership, Canada could substantially improve this terrible situation.
Once this summer’s election was concluded, CIFFA wrote to the Prime Minister asking him to name a special representative to understand the supply chain disaster and recommend measures – public and private – to alleviate it.
Since there is not yet a new Transport Minister, and whoever eventually gets the job will be swamped with complex files, we urged the PM to name a special representative with no other duties but to bring parties together and to craft a national response.
People are looking for leadership. If the Prime Minister named such an emissary, the entire industry would respond cooperatively.
It’s not the solution to every problem, but it’s a start.
Bruce Rodgers
Executive Director, CIFFA
For more information, please contact Julia Kuzeljevich, Director, Policy and Communications, CIFFA, juliak@ciffa.com.
The Canadian International Freight Forwarders Association (CIFFA) represents some 260 regular member firms from the largest of global multi-national freight forwarding firms to small and medium sized Canadian companies. CIFFA member companies employ tens of thousands of highly skilled international trade and transportation specialists. As a vital component of Canada’s global supply chain, member firms of the Canadian International Freight Forwarders Association (CIFFA) facilitate the movement of goods around the world. Freight forwarders provide a vital link in Canada’s global supply chains, enhancing export capabilities and assisting in the delivery of competitive solutions to Canada’s importing and exporting communities.
TORONTO, September 13, 2021
CIFFA (The Canadian International Freight Forwarders Association), is pleased to announce the promotion of Julia Kuzeljevich to Director, Policy and Communications.
Kuzeljevich joined CIFFA in 2017 as its Public Affairs Manager after 18 years in the business media working on several transportation and supply chain publications.
She will be responsible for advancing CIFFA’s advocacy agenda, working to influence public policy development positively and proactively and to address regulatory issues that affect freight forwarders’ ability to conduct day-to-day business.
As well as managing CIFFA’s volunteer national committees in sea freight, airfreight, customs, sustainability and technology, she will represent the legislative and regulatory interests of CIFFA members with government authorities, carriers and other associations. Reporting to the Executive Director, Kuzeljevich will provide leadership direction to a Communications team and a lobbyist.
“We are pleased to announce the promotion of Julia Kuzeljevich to this new role advancing CIFFA’s policy agenda and building further on our excellent reputation domestically and internationally as the trusted advisor for the freight forwarding community,” said Bruce Rodgers, Executive Director, CIFFA.
An experienced moderator and presenter, Kuzeljevich is bilingual and holds honours B.A. degrees from York University and Humber’s School of Journalism. She has completed CIFFA’s International Transportation and Trade course and is currently working towards the CSCB’s Canadian Customs and Border Procedures.