DOT 49 CFR PART 1037-2010 BULK GRAIN AND GRAIN PRODUCTS - LOSS AND DAMAGE CLAIMS.pdf

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1、78 49 CFR Ch. X (10110 Edition) Pt. 1037 of lading of the carrier by water (this bill of lading being such bill of lading if the prop-erty is transported by such water carrier thereunder) and by and under the laws and regulations applicable to transportation by water. Such water carriage shall be pe

2、r-formed subject to all the terms and provi-sions of, and all the exemptions from liabil-ity contained in the Act of Congress of the United States, approved on February 13, 1893, and entitled An act relating to the naviga-tion of vessels, etc. and of other statutes of the United States according car

3、riers by water the protection of limited liability as well as the following subdivisions of this sec-tion: and to the conditions contained in this bill of lading not inconsistent with this sec-tion, when this bill of lading becomes the bill of lading of the carrier by water. (b) No such carrier by w

4、ater shall be liable for any loss or damage resulting from any fire happening to or on board the vessel, or from explosion, bursting of boilers or break-age of shafts, unless caused by the design or neglect of such carrier. (c) If the owner shall have exercised due diligence in making the vessel in

5、all respects seaworthy and properly manned, equipped and supplied, no such carrier shall be liable for any loss or damage resulting from the perils of the lakes, seas, or other waters, or from latent defects in hull, machinery, or ap-purtenances whether existing prior to, at the time of, or after sa

6、iling, or from collision, stranding, or other accidents of navigation, or from prolongation of the voyage. And, when for any reason it is necessary, any ves-sel carrying any or all of the property herein described shall be at liberty to call at any port or ports, in or out of the customary route, to

7、 tow and be towed, to transfer, trans-ship, or lighter, to load and discharge goods at any time, to assist vessels in dis-tress, to deviate for the purpose of saving life or property, and for docking and repairs. Ex-cept in case of negligence such carrier shall not be responsible for any loss or dam

8、age to property if it be necessary or is usual to carry the same upon deck. (d) General Average shall be payable ac-cording to the York-Antwerp Rules of 1924, sections 1 to 15, inclusive, and sections 17 to 22, inclusive, and as to matters not covered thereby according to the laws and usages of the

9、Port of New York. If the owners shall have exercised due diligence to make the vessel in all respects seaworthy and properly manned, equipped and supplied, it is hereby agreed that in case of danger, damage or dis-aster resulting from faults or errors in navi-gation, or in the management of the vess

10、el, or from any latent or other defects in the vessel, her machinery or appurtenance, or from unseaworthiness, whether existing at the time of shipment or at the beginning of the voyage (provided the latent or other de-fects or the unseaworthiness was not discov-erable by the exercise of due diligen

11、ce), the shippers, consignees and/or owners of the cargo shall nevertheless pay salvage and any special charges incurred in respect of the cargo, and shall contribute with the ship-owner in general average to the payment of any sacrifices, losses or expenses of a general average nature that may be m

12、ade or in-curred for the common benefit or to relieve the adventure from any common peril. (e) If the property is being carried under a tariff which provides that any carrier or car-riers party thereto shall be liable for loss from perils of the sea, then as to such carrier or carriers the provision

13、s of this section shall be modified in accordance with the tar-iff provisions, which shall be regarded as in-corporated into the conditions of this bill of lading. (f) The term water carriage in this sec-tion shall not be construed as including lighterage in or across rivers, harbors, or lakes, when

14、 performed by or on behalf of rail carriers. Sec. 10. Any alteration, addition, or era-sure in this bill of lading which shall be made without the special notation hereon of the agent of the carrier issuing this bill of lading, shall be without effect, and this bill of lading shall be enforceable ac

15、cording to its original tenor. PART 1037BULK GRAIN AND GRAIN PRODUCTSLOSS AND DAMAGE CLAIMS Sec. 1037.1 Weights and weighing. 1037.2 Cars. 1037.3 Claims. AUTHORITY: 49 U.S.C. 721. SOURCE: 40 FR 49342, Oct. 22, 1975, unless otherwise noted. 1037.1 Weights and weighing. (a) How determinedAccuracy of t

16、he weights used in determining the quan-tity of grain and grain products re-ceived for transportation by carriers and delivered by them to consignees being of primary and fundamental im-portance, the use of estimated weights based upon the cubical contents of the load and the test weight per bushel

17、of the grain and grain products, or other-wise, will not be accepted. All ship-ments shall be carefully weighed by competent weighers upon scales that are known to be accurate within the limits of tolerance stated in scale spec-ifications. VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 0

18、0088 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-79 Surface Transportation Board, DOT 1037.3 (b) Inspection of scalesBefore weighing grain and grain products to and from

19、cars, the scale and all other facilities to be used must be thor-oughly inspected to ascertain whether they are in proper working condition, necessary adjustments or repairs, if any required, must be made, and an ac-curate and complete record thereof shall be entered at the time of inspec-tion. (c)

20、Shipping weightsWhere the shipper weighs the grain or grain prod-ucts for shipment and a claim for loss and damage is subsequently filed on that shipment, the shipper shall fur-nish the carrier with whom the claim is filed certificates of weight showing car initials and number; the kind of grain or

21、grain products; the total scale weight; the type and house number of the scale used; the number of drafts and weight of each draft; the date and time of weighing; whether the weight is official, board-of-trade, grain-ex-change, State, or other supervised weight; and the number of grain doors used. T

22、his information should be fur-nished at the time the claim is filed. (d) Destination weightsWhere the consignee weighs a shipment of grain or grain products and a claim for loss and damage is subsequently filed on the shipment, the consignee shall fur-nish the carrier with whom the claim is filed ce

23、rtificates of weight showing the car initials and number; the kind of grain or grain products; the total scale weight; the type and house number of the scale used; the number of drafts and weight of each draft, and the date and time of weighing; and whether the weight is official, board-of-trade, gr

24、ain- exchange, State, or other supervised weight. This information should be fur-nished at the time the claim is filed. (e) A difference in weights at origin and destination, both of which are based on supervised scales, establishes prima facie that the loss occurred in transit and that the railroad

25、 is liable. When a difference in weights is based in part on an unsupervised weight, which nevertheless, was accepted by the railroad as the basis for assessing freight charges, such unsupervised weight in combination with a super-vised weight establishes prima facie that the loss occurred in transi

26、t and the railroad is liable. When a difference in weights is based in part on an unsu-pervised weight, with the above excep-tion, a prima facie case of railroad li-ability for loss in transit has not been established. Such difference in weights is a factor, however, to be considered in connection w

27、ith other evidence that a clear-record car arrived at destination with seals intact and unbroken or that the shipper made a written complaint that any car placed for loading was de-fective, in response to which the rail-road filed a written report after inves-tigation of the complaint. See para-grap

28、h (c) of 1037.3. 1037.2 Cars. A car is not in suitable condition for the transportation of bulk grain and grain products when it is defective. The rules prescribed in this part 1037 apply on shipments transported solely in railroad-owned and railroad-leased cars. 57 FR 54334, Nov. 18, 1992 1037.3 Cl

29、aims. (a) In computing the amount of the loss for which the carrier will pay there will be deducted from the gross amount of the ascertained actual loss one-fourth of 1 percent of the estab-lished loading weight to cover invisible loss and waste; provided, however, that where grain and grain product

30、s heat in transit and investigation shows that the invisible loss resulting therefrom exceeded one-fourth of 1 percent of such other amount as may hereafter be fixed in the manner above stated, and that the carrier is not otherwise liable for said loss, then the ascertained ac-tual amount of the inv

31、isible loss due to heating of the grain and grain products will be deducted. (b) Where investigation discloses a defect in equipment, seal or seal record, or a transfer in transit by the carrier of a carload of bulk grain or grain products upon which the unload-ing weight is less than the loading we

32、ight and the shipper furnishes duly attested certificates showing the cor-rectness of the claimed weight, and in-vestigation fails to show that the dis-crepancy is due to defective scales or other shipper facilities, or to inac-curate weighing or other error at point VerDate Mar2010 15:03 Nov 23, 20

33、10 Jkt 220219 PO 00000 Frm 00089 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-80 49 CFR Ch. X (10110 Edition) Pt. 1039 of origin or destination, or to fraud, then the resu

34、lting claim will be ad-justed subject to the deductions au-thorized in the immediately preceding paragraph (a) of this 1037.3; provided, however, that the clear record of either the carriers or shippers facilities shall not be interpreted as affecting or changing the burden of proof now law-fully re

35、sting upon either party. There-fore, movement in a clear-record car is not conclusive evidence of the fact that the car is not defective. It must be con-sidered along with other evidence to determine liability. See paragraph (e) of 1037.1 (c) In case of a disputed claim, the records of both the carr

36、ier and the claimant affecting the shipment in-volved shall be available to both par-ties. These records shall include a writ-ten complaint, if any, filed by the ship-per with the railroad at the time the car was placed for loading that the car was defective, and the written report of an investigati

37、on of the complaint, filed by the railroad with the shipper, if made. PART 1039EXEMPTIONS Sec. 1039.10 Exemption of agricultural commod-ities except grain, soybeans, and sun-flower seeds. 1039.11 Miscellaneous commodities exemp-tions. 1039.12 Long and short haul transportation exemption. 1039.13 Rai

38、l intermodal transportation ex-emption. 1039.14 Boxcar transportation exemptions and rules. 1039.16 Exemption of new highway trailers or containers. 1039.17 Protective service contracts exemp-tion. 1039.20 Storage leases. 1039.21 International joint through rates. 1039.22 Exemption of certain paymen

39、ts, services, and commitments from the Elk-ins Act and related provisions. AUTHORITY: 49 U.S.C. 10502, 13301. SOURCE: 47 FR 50262, Nov. 5, 1982, unless otherwise noted. 1039.10 Exemption of agricultural commodities except grain, soy-beans, and sunflower seeds. The rail transportation of the com-modi

40、ties listed below is exempt from the provisions of subtitle IV of title 49, except that carriers must continue to comply with Board accounting and re-porting requirements, including a brief statement in their annual reports of operations under this exemption, and must maintain copies of rates, charg

41、es, rules or regulations, for traffic moved under this exemption, at their prin-cipal office, subject to inspection, and send a letter of notification to the docket Ex Parte No. 346 (Sub-No. 14), within 30 days, of the fact that they are using the exemption. All tariffs per-taining to the transporta

42、tion of these miscellaneous commodities will no longer apply except to the extent adopted by carrier quotations. The cat-egories of commodities which are ex-empt under this decision, by Standard Transportation Commodity Code (STCC) number are: 01 . Farm products, with the exception of grain (STCC No

43、. 0113), soybeans (STCC No. 01144), and sunflower seeds (STCC No. 0114940). 09 . Fresh fish and other marine products. 2011 . Fresh meat. 2015 . Fresh dressed poultry. 2017 . Processed poultry. 2021 . Creamery Butter. 2023 . Condensed, Evaporated or Dried Milk. 2025 . Cheese and Special Dairy Produc

44、ts. 2026 . Processed Whole Milk. 20141 . Hides and Skins. 20144 . Animal refuse, tankage, or meat meal. 2042127 . Citrus pomace. 2071212 . Shelled walnuts. 2091425 . Cottonseed hulls. 20915 . Cotton linters. 2099929 . Butter and honey mixed. 2099941 . Honey, comb, granulated or strained, or heat tre

45、ated to retard granulation. 2099976 . Freeze-dried poultry. 2099977 . Freeze-dried meat. 2099978 . Freeze-dried salad ingredients. 2099993 . Fresh and salted meat and products mixed, not hung. 2099994 . Fresh and salted meat and products mixed, hung and not hung. 214 . Stemmed or redried tobacco. 22

46、81130 . Cotton, carded, dyed or not dyed, but not spun, woven or knitted, but includ-ing cotton lap. 2291163 . Mattress felt, nec, cjors, not finished. 2291174 . Felts, cotton, nec. 2297135 . Wool, nec, scoured. 2299522 . Flax fibre. 2299926 . Cotton linters, bleached or dyed. 2842337 . Beeswax. and

47、 shall embrace all articles assigned additional digits. The STCC shall be those code numbers in effect as of Jan-uary 1, 1979, as shown in Standard Transportation Commodity Code Tariff 1G, STB STCC 6001C. Nothing in this exemption shall be construed to affect VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00090 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-