Common carrier

Last updated

A common carrier in common law countries (corresponding to a public carrier in some civil law systems, [1] usually called simply a carrier) [2] is a person or company that transports goods or people for any person or company and is responsible for any possible loss of the goods during transport. [3] A common carrier offers its services to the general public under license or authority provided by a regulatory body, which has usually been granted "ministerial authority" by the legislation that created it. The regulatory body may create, interpret, and enforce its regulations upon the common carrier (subject to judicial review) with independence and finality as long as it acts within the bounds of the enabling legislation.

Contents

A common carrier (also called a public carrier in British English) [3] is distinguished from a contract carrier, which is a carrier that transports goods for only a certain number of clients and that can refuse to transport goods for anyone else, and from a private carrier. A common carrier holds itself out to provide service to the general public without discrimination (to meet the needs of the regulator's quasi judicial role of impartiality toward the public's interest) for the "public convenience and necessity." A common carrier must further demonstrate to the regulator that it is "fit, willing, and able" to provide those services for which it is granted authority. Common carriers typically transport persons or goods according to defined and published routes, time schedules, and rate tables upon the approval of regulators. Public airlines, railroads, bus lines, taxicab companies, phone companies, internet service providers, [4] cruise ships, motor carriers (i.e., canal operating companies, trucking companies), and other freight companies generally operate as common carriers. Under US law, an ocean freight forwarder cannot act as a common carrier. [3]

The term common carrier is a common law term and is seldom used in Continental Europe because it has no exact equivalent in civil-law systems. In Continental Europe, the functional equivalent of a common carrier is referred to as a public carrier [1] or simply as a carrier. However, public carrier in Continental Europe is different from public carrier in British English in which it is a synonym for contract carrier.

General

Although common carriers generally transport people [5] or goods, in the United States the term may also refer to telecommunications service providers and public utilities.[ citation needed ] In certain U.S. states, amusement parks that operate roller coasters and comparable rides have been found to be common carriers; a famous example is Disneyland. [6]

Regulatory bodies may also grant carriers the authority to operate under contract with their customers instead of under common carrier authority, rates, schedules and rules. These regulated carriers, known as contract carriers, must demonstrate that they are "fit, willing and able" to provide service, according to standards enforced by the regulator. However, contract carriers are specifically not required to demonstrate that they will operate for the "public convenience and necessity." A contract carrier may be authorized to provide service over either fixed routes and schedules, i.e., as regular route carrier or on an ad hoc basis as an irregular route carrier.

It should be mentioned that the carrier refers only to the person (legal or physical) that enters into a contract of carriage with the shipper. The carrier does not necessarily have to own or even be in the possession of a means of transport. Unless otherwise agreed upon in the contract, the carrier may use whatever means of transport approved in its operating authority, as long as it is the most favorable from the cargo interests' point of view. The carriers' duty is to get the goods to the agreed destination within the agreed time or within reasonable time. [1]

The person that is physically transporting the goods on a means of transport is referred to as the "actual carrier." When a carrier subcontracts with another provider, such as an independent contractor or a third-party carrier, the common carrier is said to be providing "substituted service." The same person may hold both common carrier and contract carrier authority. In the case of a rail line in the US, the owner of the property is said to retain a "residual common carrier obligation," unless otherwise transferred (such as in the case of a commuter rail system, where the authority operating passenger trains may acquire the property but not this obligation from the former owner), and must operate the line if service is terminated. [ citation needed ]

In contrast, private carriers are not licensed to offer a service to the public. Private carriers generally provide transport on an irregular or ad hoc basis for their owners.

Carriers were very common in rural areas prior to motorised transport. Regular services by horse-drawn vehicles would ply to local towns, taking goods to market or bringing back purchases for the village. If space permitted, passengers could also travel.

Telecommunications

In the United States, telecommunications carriers are regulated by the Federal Communications Commission under title II of the Communications Act of 1934. [7]

The Telecommunications Act of 1996 made extensive revisions to the "Title II" provisions regarding common carriers and repealed the judicial 1982 AT&T consent decree (often referred to as the Modification of Final Judgment) that effectuated the breakup of AT&T's Bell System. Further, the Act gives telephone companies the option of providing video programming on a common carrier basis or as a conventional cable television operator. If it chooses the former, the telephone company will face less regulation but will also have to comply with FCC regulations requiring what the Act refers to as "open video systems". The Act generally bars, with certain exceptions including most rural areas, acquisitions by telephone companies of more than a 10 percent interest in cable operators (and vice versa) and joint ventures between telephone companies and cable systems serving the same areas.

Using provisions of the Communications Act of 1934, the FCC classified Internet service providers as common carriers, effective June 12, 2015, for the purpose of enforcing net neutrality. [7] Before that time, the Good Samaritan provision of the Communications Decency Act established immunity from liability for third party content on grounds of libel or slander, and the DMCA established that ISPs that comply with the DMCA would not be liable for the copyright violations of third parties on their network. On December 14, 2017, under a new presidential administration, the FCC reversed its own rules on net neutrality, essentially revoking common carrier status as a requirement for internet service providers. [8] The U.S. Senate narrowly passed a non-binding resolution aiming to reverse the FCC's decision and restore FCC's net neutrality rules. [9]

Pipelines

In the United States, many oil, gas and CO2 pipelines are common carriers. The Federal Energy Regulatory Commission (FERC) regulates rates charged and other tariff terms imposed by interstate common carrier pipelines. Intrastate common carrier pipeline tariffs are often regulated by state agencies. The US and many states have delegated the power of eminent domain to common carrier gas pipelines.

Common carriers are subject to special laws and regulations that differ depending on the means of transport used, e.g. sea carriers are often governed by quite different rules from road carriers or railway carriers. In common law jurisdictions as well as under international law, a common carrier is absolutely liable [10] for goods carried by it, with four exceptions: [11]

A sea carrier may also, according to the Hague-Visby Rules, escape liability on other grounds than the above-mentioned, e.g. a sea carrier is not liable for damages to the goods if the damage is the result of a fire on board the ship or the result of a navigational error committed by the ship's master or other crewmember.

Carriers typically incorporate further exceptions into a contract of carriage, often specifically claiming not to be a common carrier.

An important legal requirement for common carrier as public provider is that it cannot discriminate, that is refuse the service unless there is some compelling reason. As of 2007, the status of Internet service providers as common carriers and their rights and responsibilities is widely debated (network neutrality).

The term common carrier does not exist in continental Europe but is distinctive to common law systems, particularly law systems in the US. [12]

In Ludditt v Ginger Coote Airways [13] the Privy Council (Lord Macmillan, Lord Wright, Lord Porter and Lord Simonds) held the liability of a public or common carrier of passengers is only to carry with due care. This is more limited than that of a common carrier of goods. The complete freedom of a carrier of passengers at common law to make such contracts as he thinks fit was not curtailed by the Railway and Canal Traffic Act 1854, and a specific contract that enlarges, diminishes or excludes his duty to take care (e.g., by a condition that the passenger travels "at his own risk against all casualties") cannot be pronounced to be unreasonable if the law authorises it. There was nothing in the provisions of the Canadian Transport Act 1938 section 25 that would invalidate a provision excluding liability. Grand Trunk Railway Co of Canada v Robinson [1915] A.C. 740 was followed and Peek v North Staffordshire Railway 11 E.R. 1109 was distinguished.

See also

Related Research Articles

Federal Communications Commission Independent agency of the U.S. Government

The Federal Communications Commission (FCC) is an independent agency of the United States government that regulates communications by radio, television, wire, satellite, and cable across the United States. The FCC maintains jurisdiction over the areas of broadband access, fair competition, radio frequency use, media responsibility, public safety, and homeland security.

Internet service provider Organisation that provides access to the Internet

An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. Internet service providers can be organised in various forms, such as commercial, community-owned, non-profit, or otherwise privately owned.

Telecommunications Act of 1996

The Telecommunications Act of 1996 was the first significant overhaul of telecommunications law in more than sixty years, amending the Communications Act of 1934. The Act, signed by President Bill Clinton, represented a major change in American telecommunication law, since it was the first time that the Internet was included in broadcasting and spectrum allotment.

Telecommunications policy of the United States

The Telecommunications policy in the US is a framework of law directed by government and the Regulatory Commissions, most notably the Federal Communications Commission. Two landmark acts prevail today, the Communications Act of 1934 and the Telecommunications Act of 1996. The latter was intended to revise the first act and specifically to foster competition in the telecommunications industry.

Public-access television is traditionally a form of non-commercial mass media where the general public can create content television programming which is narrowcast through cable TV specialty channels. Public-access television was created in the United States between 1969 and 1971 by the Federal Communications Commission (FCC), under Chairman Dean Burch, based on pioneering work and advocacy of George Stoney, Red Burns, and Sidney Dean.

Transport Act 1962 United Kingdom legislation

The Transport Act 1962 is an Act of the Parliament of the United Kingdom. Described as the "most momentous piece of legislation in the field of railway law to have been enacted since the Railway and Canal Traffic Act 1854", it was passed by Harold Macmillan's Conservative government to dissolve the British Transport Commission (BTC), which had been established by Clement Attlee's Labour government in 1947 to oversee railways, canals and road freight transport. The Act established the British Railways Board, which took over the BTC's railway responsibilities from 1 January 1963 until the passing of the Railways Act 1993.

Net neutrality Principle that Internet service providers should treat all data equally

Network neutrality, most commonly called net neutrality, is the principle that Internet service providers (ISPs) must treat all Internet communications equally, and not discriminate or charge differently based on user, content, website, platform, application, type of equipment, source address, destination address, or method of communication.

National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), is a United States Supreme Court case in which the Court declared in a 6–3 decision that the administrative law principle of Chevron deference to statutory interpretations by administrative agencies tasked with executing the statute trumped the precedents of the United States Courts of Appeals unless the Court of Appeals had held that the statute was "unambiguous" under the Chevron deference. The Supreme Court therefore upheld the Federal Communications Commission's determination that a cable Internet provider is an "information service", and not a "telecommunications service" and as such competing internet service providers (ISPs) like Brand X Internet were denied access to the cable and phone wires to provide home users with competing internet service.

A Himalaya clause is a contractual provision expressed to be for the benefit of a third party who is not a party to the contract. Although theoretically applicable to any form of contract, most of the jurisprudence relating to Himalaya clauses relate to maritime matters, and exclusion clauses in bills of lading for the benefit of employees, crew, and agents, stevedores in particular.

In the United States, net neutrality, the principle that Internet service providers (ISPs) treat all data on the Internet the same, and not discriminate, has been an issue of contention between network users and access providers since the 1990s. With net neutrality, ISPs may not intentionally block, slow down, or charge money for specific online content. Without net neutrality, ISPs may prioritize certain types of traffic, meter others, or potentially block traffic from specific services, while charging consumers for various tiers of service.

Free Press (organization)

Free Press is a United States advocacy group that is part of the media reform or media democracy movement. It gives the following mission statement: "We focus on saving Net Neutrality, achieving affordable internet access for all, uplifting the voices of people of color in the media, challenging old and new media gatekeepers to serve the public interest, ending unwarranted surveillance, defending press freedom and reimagining local journalism." The group is a major supporter of net neutrality.

Traffic pumping, also known as access stimulation, is a controversial practice by which some local exchange telephone carriers in rural areas of the United States inflate the volume of incoming calls to their networks, and profit from the greatly increased intercarrier compensation fees to which they are entitled by the Telecommunications Act of 1996.

The Federal Communications Commission Open Internet Order is a set of regulations that move towards the establishment of the internet neutrality concept. Some opponents of net neutrality believe such internet regulation would inhibit innovation by preventing providers from capitalizing on their broadband investments and reinvesting that money into higher quality services for consumers. Supporters of net neutrality argue that the presence of content restrictions by network providers represents a threat to individual expression and the rights of the First Amendment. Open Internet strikes a balance between these two camps by creating a compromised set of regulations that treats all internet traffic in "roughly the same way". In Verizon v. FCC, the Court of Appeals for the D.C. Circuit vacated portions of the order that the court determined could only be applied to common carriers.

Net bias is the counter-principle to net neutrality, which indicates differentiation or discrimination of price and the quality of content or applications on the Internet by ISPs. Similar terms include data discrimination and network management.

Ajit Pai American attorney and FCC chairman

Ajit Varadaraj Pai is an American lawyer who serves as Chairman of the U.S. Federal Communications Commission (FCC).

<i>Verizon Communications Inc. v. FCC</i> (2014)

Verizon Communications Inc. v. Federal Communications Commission was a 2014 U.S. Court of Appeals for the D.C. Circuit case vacating portions of the FCC Open Internet Order 2010 that the court determined could only be applied to common carriers. The court ruled that the FCC did not have the authority to impose the order in its entirety. Because the FCC had previously classified broadband providers under Title I of the Communications Act of 1934, the court ruled that the FCC had relinquished its right to regulate them like common carriers. The case was largely viewed as a loss for network neutrality supporters and a victory for the cable broadband industry. Of the three orders that make up the FCC Open Internet Order 2010, two were vacated and one was upheld (transparency). Judge David S. Tatel wrote the opinion with Judge Judith Ann Wilson Rogers joining. Judge Laurence H. Silberman wrote a separate decision concurring in part and dissenting in part.

Net neutrality law refers to laws and regulations which enforce the principle of net neutrality.

<i>United States Telecom Assn v. FCC</i> (2016)

USTA v. FCC is the 2016 court case in which the Court of Appeals for the D.C. Circuit upheld the Federal Communication Commission's reclassification of broadband services as telecommunications services subject to common carrier regulation under Title II of the Communications Act of 1934. This decision was a major victory for net neutrality, the principle of non-discrimination by Internet Service Providers (ISPs) with regards to data that they carry.

Net neutrality is the principle that governments should mandate Internet service providers to treat all data on the Internet the same, and not discriminate or charge differently by user, content, website, platform, application, type of attached equipment, or method of communication. For instance, under these principles, internet service providers are unable to intentionally block, slow down or charge money for specific websites and online content.

<i>Mozilla v. FCC</i>

Mozilla v. FCC was a legal case heard in the United States Court of Appeals for the District of Columbia Circuit in 2019 related to net neutrality in the United States. The case centered on the Federal Communications Commission (FCC)'s decision in 2017 to rollback its prior 2015 Open Internet Order, reclassifying Internet services as an information service rather than as a common carrier, deregulating principles of net neutrality that had been put in place with the 2015 order. The proposed rollback had been publicly criticized during the open period of discussion, and following the FCC's issuing of the rollback, several states and Internet companies sued the FCC. These cases were consolidated into the one led by the Mozilla Corporation.

References

  1. 1 2 3 Encyclopædia Britannica CD 2000 "Civil-law public carrier" from "carriage of goods"
  2. Daniel Engber. "Louisiana's Napoleon Complex". Slate Group. Retrieved 16 September 2018. : Note that Louisiana uses "common carrier" although its law based on the Spanish and French civil law tradition, a version of the Napoleonic Code.
  3. 1 2 3 Longman Business English Dictionary
  4. "Restoring Internet Freedom". fcc.gov. 12 June 2017. Retrieved 27 March 2018.
  5. Stokes v. Saltonstall , 38 U.S. 181 (1839).
  6. Gomez v. Superior Court (Walt Disney Co.), 35 Cal. 4th 1125 (2005).
  7. 1 2 Fung, Brian (12 June 2015). "Net neutrality takes effect today. Here's how it affects you" . Retrieved 27 March 2018 via www.washingtonpost.com.
  8. Fung, Brian (2017-12-14). "The FCC just voted to repeal its net neutrality rules, in a sweeping act of deregulation". Washington Post. ISSN   0190-8286 . Retrieved 2018-06-07.
  9. Fung, Brian (2018-05-16). "Senate approves bipartisan resolution to restore FCC net neutrality rules". Washington Post. ISSN   0190-8286 . Retrieved 2018-06-07.
  10. Lovett v. Hobbs (1680) 89 Eng. Rep. 836.
  11. Gregory v Commonwealth Railways Cmr (1941) 66 CLR 50 at 74
  12. De Witt: Multimodal Transport, LLP 1995, p. 23.
  13. [1947] A.C. 233; [1947] 1 All E.R. 328