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Carriers - Further Readings

common passengers liable act

Individuals or businesses that are employed to deliver people or property to an agreed destination.

The two main types of carriers are common carriers and private carriers. A common carrier, such as a railroad, airline, or business that offers public transportation, customarily transports property and individuals from one location to another, thus offering its services for the hire of the general population. A private carrier is employed by special agreement only and reserves the right to accept or reject employment as a carrier. Private carriers include chartered cargo planes, ships, and buses and are generally not subject to the same regulatory restrictions as common carriers.

Common carriers engaged in interstate transportation are regulated on the federal level pursuant to the COMMERCE CLAUSE of the U.S. Constitution, which provides that "[t]he Congress shall have Power … [t]o regulate Commerce … among the several States" (art. I, § 8, cl. 3). The government, through the INTERSTATE COMMERCE ACT (49 U.S.C.A. § 10101 et seq.), traditionally regulated charges for interstate transportation by common carriers. Beginning in the late 1970s and early 1980s, however, deregulation of the trucking industry reduced government involvement in establishing rates. Unless a statute states otherwise, a common carrier has broad authority to fix transportation rates so long as the rates are reasonable. In determining whether a rate is reasonable, a number of elements are considered. The most essential is the cost of transportation to the carrier, and others include the character and value of the items to be shipped; their weight, bulk, and ability to be handled; and the mileage to be covered. Though common carriers have a great deal of freedom to set interstate rates, they must follow procedures set forth by the INTERSTATE COMMERCE COMMISSION, including filing rates with the commission and publishing them.

A state possesses the authority to monitor and control the management and functions of common carriers operating within its borders and may set the prices charged by carriers doing business within the state. Most state laws require common carriers to file rate schedules with a state regulatory commission.

A common carrier is obligated to provide the necessary facilities to transport the volume of goods expected and to exercise the reasonable care needed to transport the goods safely. In the case of perishable goods, such as frozen or fresh foods, the common carrier must provide refrigerated or ventilated cars to ensure their safe transportation. Likewise, when transporting livestock, a common carrier is required to provide adequate ventilation, bedding, and partitions. The common carrier may be liable for loss or injury to the livestock resulting from defects in the cars it uses to transport the animals.

The carrier must follow any specific shipping directives provided by the shipper and if any instructions are ambiguous, the carrier must hold the goods until the shipper provides clarification. The shipper can select the route and manner by which the goods can be transported, but if no route is specified, the carrier is free to choose any convenient route that does not result in delay to the shipper.

Subject to some exceptions, a common carrier is absolutely liable for loss or damage to the goods it receives for shipment. A common carrier is not liable for loss or injury to goods brought about by an act of God, an event such as an unforeseeable flood that could be neither caused nor prevented through the exercise of proper care on the part of the carrier. A carrier could, however, be liable for an act of God if it is guilty of NEGLIGENCE after the discovery of an accident. For example, a fire started by lightning would ordinarily be considered an act of God, but if the carrier discovered it early and did nothing to abate it, the carrier could still be liable for failing to exercise due diligence.

In addition, a common carrier is not liable for a loss of goods when the loss is caused by the destruction or appropriation of the goods by the military forces of a "public enemy" at war with the domestic government. However, merely a declaration of MARTIAL LAW will not relieve the common carrier of liability, and groups who are not functioning as military forces against the government are not considered public enemies. Thus, a common carrier remains liable for a loss of goods resulting from the acts of a mob, rioters, and strikers, even if the carrier was not negligent and took all possible precautions to prevent the loss.

A carrier will not be held liable for injuries to goods that occur as a result of the shipper's negligence or misconduct. Furthermore, when the nature or value of the goods to be shipped is fraudulently concealed or misrepresented by the shipper, whether to obtain a lower shipping rate or for any other purpose, the carrier is not liable for any losses incurred. FRAUD can be established by the shipper's silence regarding the value of the goods or by untruthful statements made by the shipper. If the shipper failed to notify the carrier about the nature of the contents of a particular shipment, the carrier is ordinarily exempt from liability if a loss occurs, even if the loss is due to negligence on the part of the carrier.

A common carrier can restrict its liability for damages by clear and unambiguous terms contained in its contract with the shipper. Questions concerning the validity of such agreements are resolved by state law when shipments within a state are involved and federal law is applied to contractual disputes concerning interstate shipments. A contractual provision releasing the carrier from liability must not contravene public policy and a carrier that departs from the usual method or route for shipment may not rely upon any limitations on liability contained in the contract.

Some common carriers, like public buses and taxis, transport people from one place to another. A common carrier of passengers, also known as a public carrier, transports for hire all persons (within certain limitations) as a regular business and represents itself as being engaged in such a business. A public carrier can deny carriage to people who refuse to comply with its reasonable regulations, who are likely to present danger to other passengers, or who in some way interfere with the safe carriage of passengers.

Common carriers of passengers are subject to extensive regulation by state and federal governments. Many states, for example, require by law that common carriers be inspected annually in order to protect people from the hazards of riding in vehicles that are poorly maintained. A common carrier that transports passengers may also make its own rules and regulations provided they are reasonable and will protect the interests of both the carrier and the passengers.

A carrier of passengers is liable for injuries suffered by passengers as a result of its negligence but is not an insurer of its passengers' safety. Instead, a common carrier is required to act with the utmost care, skill, and diligence to protect the safety of its passengers as may be mandated by the type of transportation provided and the risk of danger inherent in it. Conversely, a private carrier of passengers must act with only reasonable care and diligence unless the contract for carriage provides otherwise, though some jurisdictions hold a private carrier to the same duty as that applied to common carriers.

Determining whether a carrier is a common carrier, and thus subject to a higher standard of care, was the subject of some litigation in the late 1990s. For example, a California federal district court held in early 1995 that Disneyland, as the operator of an amusement park ride, qualified as a common carrier and thus should be held to a duty of utmost care and diligence for the safety of its passengers even though the chief purpose of the ride was to entertain and not transport travelers (Neubauer v. Disneyland, 875 F. Supp. 672 [C.D. Cal. 1995]). As a result, Disneyland was held liable for injuries the plaintiffs suffered when their boat on an amusement ride was rammed from behind by another boat. The court looked to the broad definition of a common carrier contained in state law and held that any narrowing of the term carrier should take place in the legislature and not in the court.

Some courts have considered whether the age of the passenger affects the duty owed by a common carrier. The Iowa Supreme Court, for example, in 1995 considered whether a school bus owed an additional duty to a child injured as he was struck by a car after safely alighting the bus (Burton ex rel. Hawkeye Bank of Des Moines v. Des Moines Metropolitan Transit, 530 N.W.2d 696 [Iowa]). The court declined to extend the duty owed by drivers of school buses to ensure the safety of children alighting the vehicles, holding that the bus company had no duty beyond that owed by a common carrier to protect child passengers from dangers that may reasonably and naturally be anticipated. According to the court, once a passenger alights safely, the passenger (even when he or she is a child) is better able to guard against the danger of moving vehicles; thus, public policy did not support extending a carrier's duty of care to include ensuring that the passenger safely crosses the street.

Unless the carrier is negligent, it is not responsible to a passenger for injuries due to natural causes and due to causes beyond the carrier's control. A common carrier of passengers cannot ordinarily release itself from liability for injuries to a passenger caused by either willful, wrongful conduct or negligence on the part of the carrier. In some jurisdictions, though, a carrier can limit its liability for negligence in exchange for providing a reduced fare or free pass. However, such limitations on liability may be invalid if the reduced fare is not made optional and if passengers are not permitted to buy tickets that provide that the carrier's liability is not limited.

Like common carriers that transport goods, carriers of passengers have also been subject to deregulation by the federal government. The Airline Deregulation Act of 1978 (49 U.S.C.A. § 334, 1301 et seq.) gave airlines almost complete discretion over rates, routes, and services offered. Prior to passage of the act, the Civil AERONAUTICS Board, a federal agency, exercised exclusive control over pricing in the airline industry.

Subsequent federal legislation also affected the responsibilities of carriers to their employees and passengers. In 1990 Congress enacted the Americans with Disabilities Act (ADA) (42 U.S.C.A. § 12201 et seq.), which prohibits employment discrimination against a qualified individual with a disability. The ADA further prohibits a carrier covered by the act from discriminating against a qualified individual with a disability because of that disability in regard to job application procedures, hiring, advancement, discharge, compensation, training, and other terms and conditions of employment. The ADA then sets forth in some detail the procedures that the carrier must follow in screening, interviewing, and hiring employees to ensure that individuals with disabilities are not subject to discrimination. In particular, the ADA requires that a carrier provide "reasonable accommodation" for the physical or mental limitations of a qualified applicant or employee with a disability unless the carrier can show that the accommodation would impose an "undue hardship" on business. According to the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, a reasonable accommodation is a modification or adjustment to a job, practice, or work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity. An undue hardship has been defined as an action that is unduly costly, extensive, substantial, or disruptive or that would fundamentally alter the nature or operation of the carrier's business.

The ADA has also affected the scope of a carrier's responsibility to its passengers. Under the ADA, carriers of passengers such as buses and rail systems must ensure that their facilities are readily accessible to and usable by individuals with disabilities by providing lifts, ramps, or other mechanisms. Airlines, which are not specifically covered by the ADA, are prohibited from discriminating against disabled individuals under the Air Carrier Access Act (ACAA), 49 U.S.C.A. § 1301 note, 1374, 1374 note, which was enacted in 1986. The ACAA provides that "[n]o air carrier may discriminate against any … handicapped individual, by reason of such handicap, in the provision of air transportation" (42 U.S.C.A. § 1374). Like the ADA, it further provides that air carriers must make "reasonable accommodations" for disabled individuals traveling by air.

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