Common carrier

Common carrier

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A common carrier in common-law countries (corresponding to a public carrier in civil-law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 systems, usually called simply a carrier) is a person or company that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport. A common carrier offers its services to the general public under license or authority provided by a regulatory body. The regulatory body has usually been granted “ministerial authority” by the legislation which 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.

A common carrier is distinguished from a contract carrier (also called a public carrier in UK English), 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
Private carrier
A private carrier is a company that transports only their own goods. Usually the carrier's primary business is not transportation but rather something else. For example, the Wegmans grocery store chain owns and operates their own private fleet to deliver produce and goods to their stores...

. A common carrier holds itself out to provide service to the general public
Public
In public relations and communication science, publics are groups of individuals, and the public is the totality of such groupings. This is a different concept to the sociological concept of the Öffentlichkeit or public sphere. The concept of a public has also been defined in political science,...

 without discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...

 (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 airline
Airline
An airline provides air transport services for traveling passengers and freight. Airlines lease or own their aircraft with which to supply these services and may form partnerships or alliances with other airlines for mutual benefit...

s, railroads, bus lines, taxicab
Taxicab
A taxicab, also taxi or cab, is a type of vehicle for hire with a driver, used by a single passenger or small group of passengers, often for a non-shared ride. A taxicab conveys passengers between locations of their choice...

 companies, cruise ship
Cruise ship
A cruise ship or cruise liner is a passenger ship used for pleasure voyages, where the voyage itself and the ship's amenities are part of the experience, as well as the different destinations along the way...

s, motor carriers (i.e., trucking companies), and other freight companies generally operate as common carriers. Under U.S. law, an ocean freight forwarder
Freight forwarder
A freight forwarder, forwarder, or forwarding agent is a person or company that organizes shipments for individuals or other companies and may also act as a carrier...

 cannot act as a common carrier.

The term common carrier is a common law term, which 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 (or simply as a carrier). (However, public carrier in continental Europe is defined differently than "public carrier" in British English, in which it is a synonym for contract carrier.)

General


Although common carriers generally transport people or goods
Goods
Goods may refer to;*Good , physical product*Personal property, legal personal chattels...

, in the United States the term may also refer to telecommunication
Telecommunication
Telecommunication is the transmission of information over significant distances to communicate. In earlier times, telecommunications involved the use of visual signals, such as beacons, smoke signals, semaphore telegraphs, signal flags, and optical heliographs, or audio messages via coded...

s providers and public utilities
Public utility
A public utility is an organization that maintains the infrastructure for a public service . Public utilities are subject to forms of public control and regulation ranging from local community-based groups to state-wide government monopolies...

. In certain U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

s, amusement park
Amusement park
thumb|Cinderella Castle in [[Magic Kingdom]], [[Disney World]]Amusement and theme parks are terms for a group of entertainment attractions and rides and other events in a location for the enjoyment of large numbers of people...

s that operate roller coaster
Roller coaster
The roller coaster is a popular amusement ride developed for amusement parks and modern theme parks. LaMarcus Adna Thompson patented the first coasters on January 20, 1885...

s and comparable rides have been found to be common carriers; a famous example is Disneyland
Disneyland Park (Anaheim)
Disneyland Park is a theme park located in Anaheim, California, owned and operated by the Walt Disney Parks and Resorts division of the Walt Disney Company. Known as Disneyland when it opened on July 18, 1955, and still almost universally referred to by that name, it is the only theme park to be...

.

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
Natural person
Variously, in jurisprudence, a natural person is a human being, as opposed to an artificial, legal or juristic person, i.e., an organization that the law treats for some purposes as if it were a person distinct from its members or owner...

) 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 favourable from the cargo
Cargo
Cargo is goods or produce transported, generally for commercial gain, by ship, aircraft, train, van or truck. In modern times, containers are used in most intermodal long-haul cargo transport.-Marine:...

 interests’ point of view. The carriers' duty is to get the goods to the agreed destination within the agreed time or within reasonable time.

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
Independent contractor
An independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when...

 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 U.S., 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.

In contrast, private carrier
Private carrier
A private carrier is a company that transports only their own goods. Usually the carrier's primary business is not transportation but rather something else. For example, the Wegmans grocery store chain owns and operates their own private fleet to deliver produce and goods to their stores...

s 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 telecommunications regulation context in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, telecommunications carriers are regulated by the Federal Communications Commission
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...

 under title II of the Communications Act of 1934
Communications Act of 1934
The Communications Act of 1934 is a United States federal law, enacted as Public Law Number 416, Act of June 19, 1934, ch. 652, 48 Stat. 1064, by the 73rd Congress, signed by President Franklin D. Roosevelt, codified as Chapter 5 of Title 47 of the United States Code, et seq. The Act replaced the...

.

The Telecommunications Act of 1996
Telecommunications Act of 1996
The Telecommunications Act of 1996 was the first major overhaul of United States telecommunications law in nearly 62 years, amending the Communications Act of 1934. This Act, signed by President Bill Clinton, was a major stepping stone towards the future of telecommunications, since this was the...

 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" or "MFJ") 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.

Computer networks (for example, the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...

) that are built on top of telecommunications networks are Information Services or Enhanced Services, and are generally regulated under title I of the Communications Act (other networks, such as cable video networks or wireless taxi dispatch networks, are neither telecommunications carrier networks nor information services).

Internet Service Provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...

s have argued against being classified as a "common carrier" and, so far, have managed to do so. The argument of ISPs against common carrier classification has largely conflated "telecommunications carriers" with "common carriers," assuming that if they were labeled as "common carriers," they would be regulated under Title II of the Communications Act by the FCC. This is incorrect; as noted above, a firm can be a common carrier without being a telecommunications carrier. The FCC proceeding that established that Internet networks are not telecommunications carriers is the Computer Inquiries. A later FCC report, IN RE FEDERAL-STATE JOINT BOARD ON UNIVERSAL SERVICE, Report to Congress, 13 FCC Rcd. 11501 (1998), reviewed this policy (this report was not an order and did not have the effect of regulatory law - it is however, an excellent capture of FCC policy at that time).

The policy of the FCC has evolved. Traditionally, an Internet network information service would acquire its telecommunications needs from a telecommunications carrier. It was an Internet network layered on top of a telecommunications network. Pursuant to recent FCC decisions, Internet DSL and Internet Cable services are now considered combined as one "information service." There is no telecommunications carrier service underneath for other ISPs to use. This has resulted in a transformation of the ISP market. Previously, thousands of ISPs had access to the telephone network. Now, with no broadband telecommunications carrier service available, there are generally only two Internet broadband providers in a residential market: the cable Internet provider and the DSL Internet provider.

Because ISPs are no longer prohibited from discriminating among different types of content under common carrier law, Internet providers may charge additional fees for certain kinds of services, such as Virtual Private Network
Virtual private network
A virtual private network is a network that uses primarily public telecommunication infrastructure, such as the Internet, to provide remote offices or traveling users access to a central organizational network....

s. Some network neutrality
Network neutrality
Network neutrality is a principle that advocates no restrictions by Internet service providers or governments on consumers' access to networks that participate in the Internet...

 supporters advocate reclassifying all ISPs as common carriers in order to prevent content discrimination.

Internet networks are, however, already treated like common carriers in many respects. ISPs are largely immune from liability for third party content. The Good Samaritan provision of the Communications Decency Act
Communications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...

 established immunity from liability for third party content on grounds of libel or slander. The DMCA established that ISPs which comply with DMCA would not be liable for the copyright violations of third parties on their network.

Pipelines


In the United States, many oil, gas and CO2 pipelines
Pipeline transport
Pipeline transport is the transportation of goods through a pipe. Most commonly, liquids and gases are sent, but pneumatic tubes that transport solid capsules using compressed air are also used....

 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 U.S. and many states have delegated the power of eminent domain
Eminent domain
Eminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...

 to common carrier gas pipelines. Many states have delegated eminent domain power to common carrier oil pipelines.

Legal implications


Common carriers are subject to special laws and regulations which differ depending on the means of transport used, e.g. sea carriers are often governed by quite different rules than road carriers or railway carriers. In common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 jurisdictions as well as under international law, a common carrier is absolutely liable for goods carried by it, with four exceptions:
  • An act of nature
  • An act of the public enemies
  • Fault or fraud by the shipper
  • An inherent defect in the goods

A sea carrier may also, according to the Hague-Visby Rules
Hague-Visby Rules
The Hague-Visby Rules are a set of international rules for the international carriage of goods by sea. The official title is "International Convention for the Unification of Certain Rules of Law relating to Bills of Lading" and was drafted in Brussels in 1924...

, 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 onboard 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
Contract of carriage
A contract of carriage is a contract between a carrier of goods or passengers and the consignor, consignee or passenger. Contracts of carriage typically define the rights, duties and liabilities of parties to the contract, addressing topics such as acts of God and including clauses such as force...

, 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 (e.g. post doesn't allow to send cash). As of 2007, the status of Internet Service providers as common carriers and their rights and responsibilities is widely debated (network neutrality
Network neutrality
Network neutrality is a principle that advocates no restrictions by Internet service providers or governments on consumers' access to networks that participate in the Internet...

).

It is also important to remember that the term common carrier does not exist in continental Europe but is distinctive to common law systems, particularly law systems in the U.S.A.

In Ludditt v Ginger Coote Airways the Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...

 (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
Railway and Canal Traffic Act 1854
The Railway and Canal Traffic Act 1854, also known as Cardwell's Act, was an Act of the United Kingdom Parliament regulating the operation of railways. It designated the railway companies as common carriers transporting goods and persons for the public benefit...

, and a specific contract which enlarges, diminishes or excludes his duty to take care (eg, 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 which 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

  • Federal Communications Commission
    Federal Communications Commission
    The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...

  • Interstate Commerce Act
  • Interstate Commerce Commission
    Interstate Commerce Commission
    The Interstate Commerce Commission was a regulatory body in the United States created by the Interstate Commerce Act of 1887. The agency's original purpose was to regulate railroads to ensure fair rates, to eliminate rate discrimination, and to regulate other aspects of common carriers, including...

  • Motor Carrier Act of 1980
    Motor Carrier Act of 1980
    The Motor Carrier Regulatory Reform and Modernization Act, more commonly known as the Motor Carrier Act of 1980 is a United States federal law which deregulated the trucking industry.-Background:...

  • Multimodal transport
    Multimodal transport
    Multimodal transport is the transportation of goods under a single contract, but performed with at least two different means of transport; the carrier is liable for the entire carriage, even though it is performed by several different modes of transport...

  • Network neutrality
    Network neutrality
    Network neutrality is a principle that advocates no restrictions by Internet service providers or governments on consumers' access to networks that participate in the Internet...

  • Private carrier
    Private carrier
    A private carrier is a company that transports only their own goods. Usually the carrier's primary business is not transportation but rather something else. For example, the Wegmans grocery store chain owns and operates their own private fleet to deliver produce and goods to their stores...

  • Owner–Operator Independent Drivers Association

External links