McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm

 

 

 

Articles and Publications

February 2018

Cargo Storage: A Minefield of Regulation

Alexander Steffen
Alexander Steffen,
Law Student

by Alexander Steffen

It was a cold and snowy January evening on Highway 401. A small cargo van was travelling eastbound on a delivery assignment to Ottawa, Ontario. This van was hauling a variety of heavy boxes, of various sizes and weights, which were haphazardly placed in the van. The company had installed a small plywood panel between the driver and the cargo area as an afterthought a couple of weeks previously.

Tragedy struck shortly after the driver finished a break at the Odessa OnRoute. Upon accelerating out of the exit ramp, the van encountered some ice and started to skid. Frantically trying to regain control, the driver hit the brakes hard, resulting in jarring which caused the cargo in the back to become dislodged. One box hit the driver, who then could not prevent the van from veering into the path of a sedan driven by a 63-year-old retiree. Both cars ended up in the ditch and, while it appeared that no one was severely hurt, damages to the vehicles resulted in total losses.

The retired sedan driver decided, prior to the expiration of the limitation period, to sue the driver of the van for negligence. There was, however, a nagging issue related to the storage of the cargo. It was later found out that he was careless in packing the van and this, for all intents and purposes, likely contributed to the loss of control. As the driver did not meet the standard of care due to the haphazard storage of his cargo for transport, he is likely prima facie liable for the accident.

It is important to assess how to prevent, or at least minimize, this foregone conclusion.

The above hypothetical motor vehicle accident illustrates a continual, and to some a very obvious, issue in cargo transportation: how is cargo storage regulated in Ontario and what rules are there that must be followed in order to not only prevent accidents but also to minimize liability.

Extensive Regulations Cover Cargo Storage Requirements


Any violation of the proper storage guide-lines can result in an HTA fine...

Vehicles in Ontario are legally required to store their cargo safely. The Ontario Highway Traffic Act (“HTA”) provides that all cargo from cardboard boxes to concrete pipes must be safely stowed while being transported on a public road. Commercial vehicles are subject to many more rules. The HTA provides for a multitude of guidelines for safe storage under the HTA Regulations and according to the Canadian Council of Motor Transport Administrators NSC Cargo Securement Standard (the “Standard”). Any violation of the proper storage guidelines can result in an HTA fine and the use of any evidence concerning the standard of care to assess any subsequent claims of negligence.1

The guidelines included in the Regulations and the Standard are highly technical and complex; it may be difficult for drivers from small commercial operations to conform with or even be aware of the specific details of them. Further, the onus is on both the driver and the supplier of the truck to properly adhere to the regulations. This can, not surprisingly, cause confusion and create questions regarding potential liability issues of a commercial driver vis-á-vis the provider of the truck.

A Technical Discussion of the Van Driver Case

The basic issue becomes how can the van driver minimize his liability through the proper storage of cargo.

Put simply, the van driver is required to secure the cargo within the vehicle in order to prevent inadvertent shifts impacting his ability to drive safely, as well as to conform to very specific regulations concerning the cargo and the vehicle.

The Standard contains a plethora of definitions. For example, it defines a “bulkhead” as a vertical barrier across a vehicle and a “front end structure” is a vertical barrier that crosses the front of a deck that “prevents cargo from moving forward”.2 In addition, a “cab shield” is a “vertical barrier [that is] (i) placed directly behind the cab of a truck or truck tractor and [is] (ii) capable of protecting the driver if the cargo moves forward”.3 Nevertheless, a “cab shield” is not, according to s. 23(3) of the Standard, to be a part of the “front end structure or part of a cargo securement system”.4


...there are stricter requirements for tie-downs.

It is clear, then, that cargo may be stored without having a structure that prevents it from moving forward. In this case, however, there are stricter requirements for tie-downs. According to s. 22(2) of the Standard, the following is required:

22(2) Where an article of cargo is not blocked or immobilized by a front-end structure, bulkhead, by other immobilized cargo or by another device that prevents it moving forward, it shall be secured by at least

(a) 1 tie-down where the article is 1.52 metres or shorter and weighs not more than 500 kilograms,
(b) 2 tie-downs where the article is

(i) 1.52 metres or shorter and weighs more than 500 kilograms, or
(ii) longer than 1.52 metres but not longer than 3.04 metres regardless of its weight, or

(c) where the article is longer than 3.04 metres

(i) 2 tie-downs for the first 3.04 metres of length, and
(ii) 1 extra tie-down for each additional 3.04 metres or fraction of 3.04 metres.5

Accordingly, the van driver was likely in violation of the Standard and by consequence s. 111 of the Highway Traffic Act, as he did not comply with the above-noted regulation; the fact that he was not charged by the police has no bearing on this finding.

Even though there was some sort of front end structure between the cabin and the cargo – in this case, a plywood board – such a structure is required to be able to resist cargo moving at a speed of 6.1 metres per second and to not allow any cargo to pass through it. The requirements for the height and design of this structure are listed below:

26(1) The front end structure of the vehicle shall be able to resist penetration by an article of cargo that contacts it when the vehicle decelerates at a rate of 6.1 metres per second per second.

(2) The front end structure of the vehicle shall not have an opening or gap that is big enough to permit an article of cargo to pass through it.6

The above example demonstrates that, for the van driver and other commercial delivery operators, industry requirements can create a potential regulatory minefield. It also illustrates the need for commercial driving operations to not only be aware of the rules but also to be cognizant that an accident will require knowledge about compliance issues related to the HTA.

In General, Liability rests with the Operator of a Commercial Vehicle

A driver is required under the HTA to properly store cargo for transport, with commercial drivers being subject to specific regulations with respect to cargo storage procedures.  S. 84(1) of the HTA provides that “[no] person shall drive or permit the driving or operation upon a highway of a vehicle... that [is] in a dangerous or unsafe condition”7 [author's emphasis]. Under this section, the safe stowing of cargo is further addressed under s. 111 of the HTA.8 This section provides that any load on any vehicle is required to be securely bound. It states the following:

Proper Loading
111 (1) Every vehicle carrying a load which overhangs the rear of the vehicle to the extent of 1.5 metres or more while on a highway shall display upon the overhanging load at the extreme rear end thereof at any time from one-half hour before sunset to one-half hour after sunrise, or at any other time when there is insufficient light or unfavourable atmospheric conditions, a red light, and at all other times a red flag or a red marker sufficient to indicate the projection of the load.9

For a commercial vehicle, s. 111 (2.1) of the HTA provides that cargo must be property secured pursuant to Ontario Regulation 363/04.10 While this regulation provides some basic guidelines for cargo securement, it primarily drefers to the Standard for specific technical regulations covering proper storage. The latest edition of the Standard was released in 2013.


Requirements are listed for cargo securement systems...

There are many complex and technical regulations concerning proper storage within the Standard. Consequently, it is also not an easily comprehended document. Requirements are listed for cargo securement systems, tie-downs, and specific products such as logs, lumber, metal coils, paper roll, concrete pipes, intermodal containers, and others.11 They also provide working load limits and specific manufacturing standards.

It is notable that a lack of case law suggests that these regulations are only enforced when an accident occurs, thereby lowering incentive to comply. It could be speculated that small commercial vehicle operators may not be aware of detailed specific rules associated with different cargoes and their storage requirements. It is important to understand the extent of these regulations in order to limit any potential issues of liability for both the driver and the vehicle supplier.

The Standard will enable the determination of Standard of Care

Regardless of whether a commercial driver is charged with violating the HTA, the Standard will provide the basis for assessing the standard of care required by an operator to prevent a finding of negligence. In Markel Insurance Company of Canada v Certas Direct Insurance Company, 2011 ONSC 6069, Justice Hoy affirmed an arbitrator's interpretation on the relationship between s. 111 and the standard of care for a commercial driver. See below:

[18] He also considered section 111 of the Highway Traffic Act dealing with the statutory requirements of securing loads on commercial vehicles and section 107 of the Highway Traffic Act dealing with the legislative requirements of regular inspection and maintenance of commercial vehicles.

[19] The arbitrator concluded that these provisions were indicative of a legislative intent to ensure that vehicles on highways are safe and not in a condition to pose a hazard to motorists lawfully using the highways and that the legislative requirements supported the common law standard of care he adopted.12

This case demonstrates that it is likely that the nexus between the obligations imposed by the HTA and the Standard provides the basis for ensuring the safe transport of cargo and accordingly can be used to ascertain whether a commercial driver has met the requirements. Thus, when examining the potential negligence of a commercial driver, the Standard provides a good method to judge the liability of the driver and the commercial operator. The Standard would also be of assistance in determining whether the provider of a vehicle could be liable for their being insufficient cargo storage mechanisms available to the driver.

Conclusion

In summary, we have illustrated the existence of an intricate, technical volume of regulations that relate to the storage and transport of cargo by commercial vehicles in Ontario. An explanation of the nexus of legal relationships that comprise the HTA and the Standard does provide a cautionary tale, however. This is because a thorough understanding of these relationships is important not only for commercial drivers but also for lawyers when liability must be determined when an accident occurs.

It is very important not to understate the fact that the Standard will be used as the basis for assessing the required standard of care in any negligence action. The above example illustrates the difficulties inherent in trying to abide by the regulations; drivers, owners and lawyers should be aware of any potential issues that may arise with respect to cargo storage. This awareness would likely reduce the chance of failing to meet the standard of care. Therefore, the regulations in the Standard should be strictly followed in order to ensure that a commercial driver has met the standard of care in the event of an accident.

Further Resources:

  1. NSC Cargo Securement Standard
  2. The Highway Traffic Act
  3. Markel Insurance Company of Canada v Certas Direct Insurance Company

1 Canadian Council of Motor Vehicle Transport Administrators, NSC Cargo Securement Standard [Standard].
2 Ibid at 10-8.
3 Ibid at 10-7.
4 Ibid.
5 Ibid at s 23(3).
6 Ibid at s 26(1).
7 Highway Traffic Act, RSO 1990, c H 8 at s 84(1) [Traffic].
8 Ibid at s 111.
9 Ibid.
10 Ibid at s 111(2.1); O Reg 363/04.
11 Standard supra note 1 at 10-7.
12 Markel Insurance Company of Canada v Certas Direct Insurance Company, 2011 ONSC 6069 at paras 18-19.


TORONTO | OTTAWA | KITCHENER | BARRIE

Copyright McCague Borlack LLP - Legal Notice | mccagueborlack.com | Follow us on Twitter twitter

McCague Borlack LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLC's association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe.

clcnow.com | harmonie.org