ON THE RIGHT TRACK
Corum points out that Mercer “agrees with FMCSA’s intent with CSA and on the whole, it is a good program.” But he takes major points off for the inequities of the enforcement that goes with it. “We do embrace CSA. It aims to eliminate those who do not measure up—and they need to be gone. But on the other hand,” he adds, “it shouldn’t involve making rules that make life difficult for professional, safe drivers.”
Herb Schmidt, president of Joplin, MO-based Con-way Truckload, says “at this stage” he gives CSA a 6 on the 1 to 10 scale. “The program has the potential to be far better than it is now,” he states. “My grade weighs everything about the program, including its subjective nature and the threat it raises of vicarious liability for carriers.”
According to Schmidt, the downside of CSA starts with the penalties assigned drivers and carriers “regardless of who is at fault in an incident. A driver struck by another vehicle can go against the driver and carrier [instead of it being ruled a non-preventable accident as in the past].”
He says he has heard FMCSA’s view on this is that fleets are being compared to others in their peer group “through the law of averages” rather than viewing each accident as preventable vs. not. “Then you must consider what is an accurate peer group? Instead of having groups built around the type of operation, everyone—linehaul and regional carriers—gets lumped in together. That’s a major flaw right there.
“FMCSA could have saved itself and the industry a lot of trouble,” Schmidt continues, “had it not created the program behind the smoke of a mysterious veil. They did not think through the unintended consequences, again, [by] not soliciting the views of those regulated.”
State-by-state enforcement is also an issue for Con-way. “For example,” says Schmidt, “New Mexico and Indiana only have to have reasonable cause to pull a driver over for speeding— then that becomes the violation if no other problem is found. All this leads to less accuracy [in finding violations] and thus a less effective program, which benefits no one.”
But there may be little or nothing that FMCSA can do about the threat of vicarious liability raised by the new program. Schmidt explains that this is defined as “the imposition of liability on one party for the conduct of another” and says the upshot is that shippers and brokers now “must be extremely concerned about hiring a carrier or that carrier’s driver with a substandard CSA score.”
He says the thinking is the “negligent” hiring of such a carrier strengthens a plaintiff’s case against a shipper or broker in a court of law.