Thursday, January 29, 2015

USPTO and Java v8 update 31

    If you are like me, you haven't upgraded to the latest version of Java because you (1) don't want to upgrade to an incompatible version of Java and create issues with your work computer, and (2) you aren't sure which version of Java is compatible with the USPTO's PAIR and EFS-Web services.

    I just talked with an Electronic Business Center representative, and he told me that they are compatible with the Java version 8 update 31.  He also told me to download the new version of Java from the website.

    Happy upgrading.

- Henry Park

Monday, January 12, 2015

Interstate Moves – Beware the Carmack Amendment

            If you are moving across state lines and using a moving company, you need to know about the Carmack Amendment (49 U.S.C. § 14706).  The Amendment will affect your ability to recover monetary damages from the moving company should your goods be damaged in transit.

            The Amendment established uniform federal liability guidelines for interstate carriers.  In doing so, it made recovering damages simpler because it made a carrier strictly liable up to the actual loss or damage to the shipped goods.

            The Amendment, however, also provides some tangible benefits to the carriers. 

1.             It preempts state common law claims against an interstate carrier related to shipped goods that are damaged or lost.  See Missouri, K. & T.R. Co. of Tex. V. Harris, 234 U.S. 412, 420 (1914).  Certain jurisdictions have interpreted broadly Carmack preemption.  See Hoskins v. Bekins Van Lines, 343 F.3d 769, 777 (5th Cir. 2003) (holding common law claims of outrage, intentional and negligent infliction of emotional distress, breach of contract, breach of implied or express warranty, violation of state consumer protection law, slander, misrepresentation, fraud, negligence and gross negligence, and violation of the common carrier's statutory duties as a common carrier under state law preempted); Hughes v. United Van Lines, Inc., 829 F.2d 1407 (7th Cir. 1987) (holding common law claims of negligence, breach of insurance contract, breach of contract of carriage, conversion, intentional misrepresentation, negligent misrepresentation, and negligent infliction of emotional distress preempted) However, certain jurisdictions have held that some types of claims survive the Carmack Amendment's preemption.  See Smith v. United Parcel Service, 296 F.3d 1244 (11th Cir. 2002) (acknowledging that "separate and distinct conduct rather than injury must exist for a claim" not to be preempted);  Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377 (5th Cir. 1998) (acknowledging that claims "separate and apart from those resulting directly from the loss of shipped property" would not be preempted);  Gordon v. United Van Lines, 130 F.3d 282 (7th Cir. 1997) (holding claim for intentional infliction of emotional distress is not preempted); Rini v. United Van Lines, Inc., 104 F.3d 502 (1st Cir. 1997) ("a claim for intentional infliction of emotional distress alleges a harm to the shipper that is independent from the loss or damage to goods and, as such, would not be preempted").

2.             It allows a carrier to limit the amount of time for a filing a claim (49 U.S.C. § 14706(e)).  A carrier may require any claims be brought within nine months.

3.             It allows a carrier to limit the amount of the liability.  To limit its liability, a carrier must have offered the shipper a reasonable opportunity to choose between two or more levels of liability.  On moving contracts, the choice typically appears between "full (replacement) value", which costs additional money, or "waiver of full (replacement) value protection", which is free but only provides protection equal to 60 cents per pound.  Thus, under the latter choice, an audio component worth $500 and weighing 20 pounds would be covered for $12.00.

            Thus, your choice as to the amount of liability protection is very important because, if something should happen to your goods during the move, your ability to recover damages will be limited by the Carmack Amendment.

- Henry Park

[updated on January 30 and 31, 2015 to clarify scope of preemption]