Summary of Recent Developments in International Trade and Transportation Law (as of August 15, 2002)

by John M. Daley

Court Decisions

Carmack Amendment Cases (Domestic Motor, Rail and Water Carriage)

2002 U.S. Dist. LEXIS 12417 (S.D. Id., decided June 19, 2002)

Hillebrand tendered plastic injection molds with a replacement value of $400,000 to Con-Way, along with a "shipping order" it had issued and completed. The order stated that it was being issued in lieu of a bill of lading and that "ALL TERMS AND CONDITIONS OF THE STRAIGHT BILL OF LADING AND APPLICABLE TARIFF AND CLASSIFICATIONS IN EFFECT AS OF THE DATE HEREON APPLY." The shipping order did not include a space for the shipper to declare a value for the goods or choose excess liability coverage, and Hillenbrand did not insert any such information onto the form. Con-Way’s driver signed the shipping order and affixed a sticker which, in fine print, stated that "unless otherwise agreed to under separate contract, terms and conditions of tariff CNWY 199." Con-Way’s Tariff 199-G provides that the released value rate will apply unless a higher value is declared on the bill of lading and a higher rate is charged. Hillenbrand and Con-Way had done considerable business together prior to the shipment at issue in this case. Hillenbrand had sent approximately eight hundred prior shipments using Con-Way as the carrier.

Con-Way brought a motion for summary judgment in which it sought an order declaring that its liability was limited to ten cents per pound. In rejecting this argument, the Court pointed out that, in the Seventh Circuit, carriers are still required to show that (1) the shipper was given a reasonable opportunity to choose between two or more levels of liability; and (2) the shipper agreed to the lower level of liability, citing Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir. 1987). The Court held that the evidence presented did not show that the shipper was given a "reasonable opportunity" to chose a higher level of liability because the documents did not include a blank to declare such a value. The Court also found that the evidence did not show that the shipper had "actual knowledge" of the ten cents per pound limitation of liability or that it had agreed to the limit.

206 F. Supp. 2d 927; 2002 U.S. Dist. LEXIS 10932 (N.D. Ill, decided June 14, 2002)

This case is discussed further below in the COGSA-Harter Act section. In addition to deciding issues under COGSA and the Harter Act, the Court held that the action was not governed by the Carmack Amendment because the carriage originated outside of the United States and was carried under a foreign through bill of lading, citing the Seventh Circuit Court of Appeal’s decision in Capitol Converting Equip., Inc. v. LEP Transport, Inc., 965 F.2d 391, 393-96 (7th Cir. 1992).

Comment: This portion of the Indemnity decision, and of the Capitol Converting and other decisions, are ultimately based upon a dicta by the Eleventh Circuit Court of Appeals in Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701 (11^th Cir. 1986). Although the decisions correctly quote the language from the Swift decision, they ignore the reasoning of the decision, which pointed out that the Carmack Amendment applied to the domestic leg of the international transportation in issue because of 49 U.S.C. § 1052(a)(1)(E) (now 49 U.S.C. § 13501(1)(E)), which provides that federal jurisdiction upon which the Carmack amendment rests applies to shipments "between a place in . . . the United States and a place in a foreign country to the extent the transportation is in the United States."

As the Court pointed out in Canon U.S.A. v. Nippon Liner Sys., 1992 U.S. Dist. LEXIS 5699 (N.D. Ill. 1992), in light of the Court’s reasoning, the language from Swift upon which the other decisions rely looks as though it was a misprint. The author believes that the decisions in Canon and Kyodo U.S.A., Inc, v. Cosco N. Am., Inc., et al., 2001 U.S. Dist. LEXIS 24360 (C.D. Cal. , filed July 23, 2002), both of which held that the Carmack Amendment applies to the domestic motor portion of carriage between a place in the United States and a place in a foreign nation, even if the transportation occurs under a "through" ocean bill of lading, correctly state the governing law. [If the domestic transportation occurs as part of a "continuous movement" of goods which either precedes or follows transportation by air, however, the carriage is exempt from the Carmack Amendment under the "continuous movement" exemption of 49 U.S.C. § 13506(a)(8)(B)].

Union Pacific Railroad Company v. Greentree Transportation Trucking Co., 293 F.3d 120; 2002 U.S. App. LEXIS 11372 (3d Cir., filed May 16, 2002)

This case involves the theft of a trailer full of cigarettes which was originally traveling under a through bill of lading issued by American President Lines from Atlanta, Georgia to Tokyo, Japan. Under the original bill, the cigarettes were to travel from Atlanta to San Pedro, California, at which point it would be transferred to the American President Lines vessel APL Wisdom for carriage to Tokyo. Unfortunately, the Southern Pacific train that was carrying the shipment of cigarettes, along with other shipments, derailed in Painted Rock, Arizona.

After the shipment was moved from the derailment site to Phoenix, Southern Pacific entered into a separate bill of lading with Greentree Transportation for the transport of a trailer full of cigarettes from Phoenix to San Pedro. Unfortunately, the trailer was stolen while left unattended at a truck stop in San Bernardino, California.

The Court held, over the objections of Greentree, that Southern Pacific (acting through its successor, Union Pacific), was a "shipper" of the goods under the Carmack Amendment, and that it was therefore entitled to recover the full value of the goods from Greentree.

2002 U.S. Dist. LEXIS 11599 (D.P.R., filed May 1, 2002)

The Court held that various Puerto Rico statutes regulating the delivery of packages in Puerto Rico, including one which prohibited UPS from delivering goods until the recipient obtained a certificate from the Department of the Treasury authorizing the delivery, were invalid because the requirements (1) relate directly to the manner in which air carriers provide services to customers and (2) "impact" their routes and prices, in violation of the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"), 49 U.S.C. § 41713(b)(4). The statutory scheme in issue, which was intended to ensure the collection of taxes due on goods delivered into Puerto Rico, included onerous requirements which had a clear impact not only on the services UPS could provide, but also required UPS to use special routing for packages bound for Puerto Rico.

2002 U.S. Dist. LEXIS 14049 (S.D.N.Y., filed July 31, 2002)

This case involves two consolidated actions. In both cases, two sets of plaintiffs asserted claims against UPS, Overseas Partners, Ltd., and Overseas Partners Capital Corp. for various claims,  including claims for (1) violation of RICO (Racketeer Influenced and Corrupt Organizations Act), (2) breach of contract, (3) intentional interference with contractual relations, (4) violation of Sherman Act § 2, (5) violation of Clayton Act § 7, (6) common law fraud, (7) misrepresentation, and (8) violation of State unfair practices acts, arising out of the defendants’ practices with regard to the purchase of "extra value insurance" and the purchase of a competing company which offered such insurance.

The Court held that the plaintiffs’ state law claims for fraud, misrepresentation and violation of State unfair practices acts were barred by the FAAA Act, which provides in pertinent part that the States "may not enact or enforce a law, regulation, or other provision having the force and effect of law related to price, route, or service of any motor carrier . . .." (49 U.S.C. § 14501(c)(1)), because "[t]he rate or fee that UPS charges for providing excess value insurance is related to the ‘price’ charged by UPS for shipping." However, it denied defendants’ motion to dismiss plaintiff’s state law claims for breach of contract and interference with contractual relations and their federal antitrust or RICO claims.

86 Cal. App. 4th 1081; 2001 Cal. App. LEXIS 81; 103 Cal. Rptr. 2d 870 (1^st App. Dist., decided February 1, 2001)

[Review Denied May 16, 2001, 2001 Cal. LEXIS 3297; Writ of certiorari denied: Servantes v. Renne, 2002 U.S. LEXIS 4694 (U.S. June 24, 2002)]

The decision in this case is given away in the opening paragraph, where the Court observes as follows: "Presiding Justice Harold G. Clarke of the Georgia Supreme Court observed that ‘[t]he law gives the towing company a great advantage over the owner of the towed car, and creates a great potential for unfair business practices and abuse of the public.’ (Porter v. City of Atlanta (1989) 259 Ga. 526, 528 [384 S.E.2d 631, 634].) While that observation was made 11 years ago and some 3,000 miles away, Justice Clarke was talking about Patrick Servantes (Servantes), who over a period of years committed myriad unfair business practices and abused the public, towing hundreds of cars off private property in abject disregard of applicable California law and San Francisco regulations. Such practices included towing vehicles without a permit, towing vehicles from private property without authorization from the property owners, refusing to accept credit cards as payment for towing and storage charges to allow release of the vehicle, and imposing excessive towing and storage charges."

In the trial court, Mr. Servantes was fined over $160,000 for a myriad of violations of State laws and San Francisco municipal ordinances which concerned his towing practices. On appeal, Mr. Servantes contended that both the State law and the municipal ordinances under which the penalties were levied, which were enacted pursuant to a delegation of authority by the State Legislature, were invalid under 49 U.S.C. § 14501(c)(1). The appellants argued that the State law and municipal ordinances were excepted from the general rule of preemption because they were laws enacted pursuant to "the safety regulatory authority of a State with respect to motor vehicles . . .." 49 U.S.C. § 14501(c)(2)(A).

The Court held that the State law in issue was enforceable, despite the contradictory holding of the Ninth Circuit Court of Appeals in Tocher v. City of Santa Ana, 219 F.3d 1040 (9th Cir. 2000). The Court also held that the municipal ordinances enacted under a delegation of authority from the State were valid, which holding is consistent with the holding in R. Mayer of Atlanta, Inc. v. City of Atlanta, 58 F.3d 538, 543 (11th Cir. 1998) and inconsistent with the holding in Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 771 (2d Cir. 1999).

2002 U.S. App. LEXIS 12716 ( 9^th Cir., decided June 27, 2002)

Wayne brought an action alleging that DHL Worldwide Express violated California state laws by selling shipment insurance on its packages at excessive prices and without obtaining a license from the California Insurance Commissioner. DHL removed the action to federal court. The district court denied Wayne's remand motion and then granted DHL's Federal Rule of Civil Procedure 12(b)(6) motion to dismiss.

On appeal, the Court held that the district court lacked jurisdiction because (1) a federal question was not presented on the face of the Complaint and (2) the doctrine of "complete preemption" did not apply because there was no evidence that Congress intended to transfer jurisdiction of the subject matter from state to federal court. Accordingly, the Court ordered that the dismissal be set aside and the case remanded to the State court.

Federal Common Law

2002 U.S. Dist. LEXIS 12350 (N.D. Cal., filed January 17, 2002)

The Court upheld a $558 limitation of liability on a shipment of paintings on the ground that the plaintiff’s agent had agreed to the limit as a matter of common law, citing Deiro v. American Airlines, Inc., 816 F.2d 1360 (9th Cir. 1987) and the Read-Rite case described above, even though UPS officials told him that he could not insure the paintings for any more than the local customs valuation of the paintings, which was $558. The Court pointed out that Kesel was not "forced" to sign the Waybill and that, if he did not approve of the limitation, "he had available to him other means to ship the paintings" and "separate insurance for the paintings could have been obtained." The Court also pointed out that UPS’s Air Waybill had two warnings on the front which advised the shipper of the limitation of liability and that there was a blank for inserting a higher value.

2002 U.S. App. LEXIS 14616 (9^th Cir. 2002, filed July 16, 2002)

The Court upheld FedEx’s limitation of liability, citing the Deiro and Read-Rite decisions mentioned above. Interestingly, the Court held that (1) the shipper’s were estopped from recovering the full value of the goods because "they failed to declare a dollar value for the goods they shipped," thereby accepting "the benefit of shipping their goods at a lower rate," and that (2) the fact "that the shippers insured their packages privately through Kemper demonstrates they had a fair opportunity to purchase higher liability." The Court did not even discuss whether the carrier had actually afforded the shippers an opportunity to declare a higher value.

Warsaw Convention (International Air Transport)

204 F. Supp. 2d 999; 2002 U.S. Dist. LEXIS 9277 (S.D. Tex., entered May 15, 2002)

The Court denied a motion to dismiss the loss of consortium claims filed by the wife and children of the passenger, holding that Texas law governs the claims. The Court pointed out that "Articles 17 and 24(2) provide nothing more than a pass-through, authorizing us to apply the law that would govern in absence of the Warsaw Convention," citing Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217, 116 S. Ct. 629, 133 L. Ed. 2d 596 (1996). The Court interpreted Zicherman to permit non-passenger plaintiffs to bring any claims otherwise allowed under the applicable domestic law.

2002 U.S. App. LEXIS 13035 (9^th Cir., filed July 1, 2002)

The Court held that "the Warsaw Convention does not apply to an airport security company rendering services to both international and domestic air passengers; nor does it apply to airlines that did not provide international air carriage to the plaintiff." Accordingly, the Court reversed a District Court decision which had held to the contrary.

Comment: The outcome in this case would probably have been different if the security company was employed exclusively by international air carriers.

2002 U.S. Dist. LEXIS 13180 (N.D. Ill, decided July 18, 2002)

The Court held that the failure to provide proper medical care after a passenger had a heart attack constitutes an "accident" as that term is used in Article 17 of the Warsaw Convention. In coming to this conclusion, the Court considered and rejected several decisions which had held that the failure to provide proper care was not an "accident" on the grounds that these cases were decided prior to the Supreme Court's decision in El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161, 142 L. Ed. 2d 576, 119 S. Ct. 662 (1999), which established that the Convention is the exclusive remedy for injuries suffered on board an aircraft. The Court pointed out that, in light of this decision, a finding that the conduct alleged was not an "accident" would deprive the plaintiff of any remedy.

2002 U.S. Dist. LEXIS 11051 ((C.D. Cal., decided June 19, 2002)

The Court ordered defendant Singapore Airlines to produce documents concerning an airline crash over objections that disclosure of the information would violate the Singapore Official Secrets Act ("SOSA") and the Convention on International Civil Aviation, December 7, 1944, 61 Stat. 1180, P.I.A.S. no. 1591, 15 U.N.T.S. 295, Annex 13, § 5.01.

Thus far, it has uniformly been held that punitive damages are not available for claims asserted under Article 17 of the Warsaw Convention. See, e.g., In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1485 (D.C. Cir. 1991); In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1281 (2d Cir. 1991); Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1483 (11th Cir. 1989); Zarolli v. Doe, 1998 U.S. Dist. LEXIS 4348, Civ. No. 98-786, 1998 WL 195697, *1 (E.D. Pa. 1998); In re Aircrash Disaster Near Roselawn, Indiana, on October 31, 1994, 960 F. Supp. 150, 153 (N.D. Ill. 1997).

In this case, the Court held that "the provisions of the Warsaw Convention extend beyond the carrier to include those independent agents which, pursuant to contracts or subcontracts with the carrier, perform services related to air travel and in furtherance of the carriage enterprise that the carrier would be bound to perform, either by law or in the interest of providing the best, safest, and most thorough carriage services, in furtherance of the performance of its contract with its customers. Such services necessarily would include, inter alia, inspection, service, maintenance, and repair of aircraft." The Court relied upon Reed v. Wiser, 555 F.2d 1079, 1083 (2d Cir. 1977) and several other American cases and rejected the holdings of decisions from other countries which are to the contrary.

2002 U.S. Dist. LEXIS 12029 (N.D. Tex., filed July 2, 2002)

The Court held that various types of damages sought by the plaintiff, and which the Court characterized as "inconvenience" damages, were not recoverable under Article 19 because the damages sought (1) were merely "mental anguish damages" and (2) could not be considered "economic loss." The Court cited and relied upon or distinguished Daniel v. Virgin Airlines, 59 F. Supp. 2d 986, 993-94 (N.D. Cal. 1998)(which allowed plaintiff to recover "inconvenience damages" to the extent that they constituted "economic loss"); Harpalani v. Air India, Inc., 622 F. Supp. 69, 71 (N.D. Ill. 1985) (allowing plaintiff to sue for damages of inconvenience and monetary loss); Pakistan Arts and Entertainment Corp. v. Pakistan Int'l Airlines Corp., 232 A.D.2d 29, 660 N.Y.S.2d 741, 743 (1997); Saiyed v. Transmediterranean Airways, 509 F. Supp. 1167, 1169 (W.D. Mich. 1981).

291 F.3d 503; 2002 U.S. App. LEXIS 10026 (8^th Cir., filed May 29, 2002)

The Court held that a passenger’s emotional distress and other mental injuries are compensable only to the extent that they are "proximately caused" by physical injuries. This decision is consistent with decisions in Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 665 (N.D. Cal. 1994); Alvarez v. American Airlines, Inc., 1999 U.S. Dist. LEXIS 13656, No. 98- Civ.1027, 1999 W.L. 691922, at *5 (S.D.N.Y. Sept. 7, 1999); Wencelius v. Air France, Inc., 1996 U.S. Dist. LEXIS 22419, No. SACV 95-389, 1996 WL 866122 (C.D. Cal. Feb. 29, 1996); Longo v. Air France, 1996 U.S. Dist. LEXIS 21947, No. 95 CV 0292, 1996 WL 866124, at *2 (S.D.N.Y. July 25, 1996); In re Inflight Explosion on Trans World Airlines, Inc. Aircraft Approaching Athens, Greece on April 2, 1986, 778 F. Supp. 625, 638-39 (E.D.N.Y. 1991); Ospina v. Trans World Airlines, Inc., 975 F.2d 35 (2d Cir. 1992); Burnett v. Trans World Airlines, Inc., 368 F. Supp. 1152, 1158 (D.N.M. 1973); Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385, 314 N.E.2d 848, 856-57, 358 N.Y.S.2d 97 (N.Y. 1974). The decision disapproves of decisions which hold that damages for mental injuries are recoverable, provided only that there are some physical injuries as well, even unrelated, which serve as a threshold to recovery for psychological injuries, including In re Aircrash Disaster Near Roselawn, Ind. on Oct. 31, 1994, 954 F. Supp. 175, 178-79 (N.D. Ill. 1997), and Chendrimada v. Air-India, 802 F. Supp. 1089, 1092-93 (S.D.N.Y. 1992).

2002 U.S. App. LEXIS 14043 (11^th Cir., filed July 12, 2002)

In this sad case, the Court held that the plaintiff’s claims for injuries resulting from an alleged assault and battery by an airline employee were barred because (1) the plaintiffs were in the course of embarking the aircraft a the time the alleged assault occurred and (2) the action was filed more than two years after the date of the injury.

Freight Forwarder Cases

2002 U.S. Dist. LEXIS 13189 (N.D. Il., decided July 3, 2002)

Kuehne & Nagel, Inc., a freight forwarder, sought indemnity, including attorneys’ fees, from FedEx. After FedEx paid the plaintiff (Motorola) the maximum amount for which it could be held liable under the Warsaw Convention, it moved for summary judgment on Kuehne & Nagel’s indemnity claim. After describing the issue as "a close and difficult case" on which "there is a minimal amount of case law on the subject matter in general, and apparently none on the particular issue before the court," the Court held that, where the putative indemnitee (Kuehne & Nagel) has incurred no liability and the indemnitor (FedEx) has already satisfied liability in an amount equal to the liability limitation, the indemnitee (Kuehne & Nagel) has no further claim.

COGSA and Harter Act Cases (Ocean Carriage)

2002 U.S. Dist. LEXIS 10932 (N.D. Ill, decided June 14, 2002)

This case involved the theft of tools from a container which had been transported from Shenzhen, China (via Long Beach/Los Angeles) to Chicago, Illinois under a through bill of lading. The cargo was destined for North Vernon, Indiana, but was stolen from a container yard in Chicago to which it had been delivered to permit an intensive examination by U.S. Customs. The bill of lading incorporated COGSA for the land portion of the carriage.

Ultimately, the Court decided that the carrier was liable for the loss of the goods, a conclusion which is hardly surprising, since the parties’ agreement required that the goods be delivered to the consignee in North Vernon, Indiana.

The interesting thing about the decision is the Court's conclusion that the case was not governed by COGSA, the Harter Act, Federal Common Law, or even the Carmack Amendment, even though the language of the statute suggests that Carmack does apply to the inland portion of the carriage. See Kyodo U.S.A., Inc. v. Cosco N. Am., Inc., 2001 WL 1835158, at *4-6 (C.D. Cal. July 23, 2001).

The Court also held that it had jurisdiction over the claim asserted, even though it decided, after considering the facts, that the claim did not arise under federal law.

2002 U.S. Dist. LEXIS 8816 (S.D. Fla., filed May 15, 2002)

This suit arose out of the theft of a container in Miami, Florida, allegedly by armed robbers, prior to delivery of the container to the consignee. The container had been carried under a through bill of lading from Jakarta, Indonesia, to the consignee in Miami, Florida. The container had been shipped overland from Long Beach, California, by rail to the Florida East Coast Railroad terminal in Miami, Florida, where it was picked up for delivery by truck to the consignee.

The defendant carrier (Orient Overseas) contended that it was not liable for the theft under 46 U.S.C. § 1304(2)(q) because the theft arose "without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier."

As in the Indemnity Insurance case cited above, the Court found that the inland portion of the carriage was not governed by the Carmack Amendment because no separate inland bill of lading was issued (a conclusion which appears to be contrary to 49 U.S.C. § 13501 (1)(E)). The Court then denied the plaintiff’s motion for summary judgment on the grounds that there was a triable issue of material fact with regard to the applicability of 46 U.S.C. § 1304(2)(q) because there was a dispute on the issues of whether (1) the truck driver who was alleged robbed was involved in the theft and (2) the truck driver was an agent of the carrier.

Senator Line v. Continental Co., Inc., 291 F.3d 145; 2002 U.S. App. LEXIS 9551 (2d Cir., decided May 17, 2002)

This case involved damage to a ship and its cargo which resulted from the spontaneous combustion of drums of "thiourea dioxide" (TDO) which were being carried in a container aboard the ship. TDO is a white, odorless powder used as a reducing agent and in the bleaching of protein fibers such as paper, paper pulp, and textiles. At the time of the shipment in question, TDO was considered a stable compound under normal conditions, and neither the shipper nor the carrier was aware of the possibility that TDO could combust spontaneously.

After the date of loss, however, TDO was recognized as a hazardous material capable of combustion under various circumstances. Moreover, the evidence introduced at trial eliminated typical external causes of on board fires, such as crew error, improper stowage, or a defect in the design or manufacture of the TDO. The Court of Appeal concluded that "it appears likely that the fire resulted, directly or indirectly, from the TDO's inherently dangerous character."

Accordingly, in reversing the District Court’s judgment in favor of the shipper, the Court held that 46 U.S.C. § 1304(6), which provides that the "shipper of [dangerous] goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment," "renders a shipper strictly liable for damages in the event that neither the shipper nor the carrier knew or should have known that shipped goods were inherently dangerous."

Legislation

Port and Maritime Security Act of 2001 (introduced by Sen. Ernest Hollings on July 20, 2001)

If enacted, this bill would (among other things) direct the Secretary of Transportation to establish a Port Security Task Force to (1) coordinate programs to enhance the security and safety of U.S. seaports; (2) coordinate the security operations of local seaport security committees; and (3) consult with the Coast Guard and the Maritime Administration in establishing port security program guidance. Authorizes appropriations. Versions of this bill have passed both the Senate and the House.

Air Cargo Security Act, S.B. 2668 (introduced by Sen. Kay Bailey Hutchinson on June 21, 2002)

If enacted, this bill would require the Under Secretary of Transportation for Security to establish a system to "screen, inspect or otherwise secure" all air cargo. Among other things, the Secretary would be required to establish a system for (1) certifying all "persons" who ship or handle cargo be "known" and "properly certified" and (2) for conducting "regular inspections" of shipping facilities. This bill has been referred to the Senate Committee on Commerce, Science, and Transportation.

A Bill to require the Secretary of Transportation to develop and implement a plan to provide security for cargo entering the United States or being transported in intrastate or interstate (not named)  (introduced by Sen. Olympia J. Snowe on June 20, 2002)

If enacted, this bill would require the Under Secretary of Transportation for Security to develop and submit a detailed plan to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives to "ensure the adequacy of security measures for the transportation of cargo into and in the United States; and (2) oversee the implementation, and ensure the adequacy, of security measures with respect to cargo at airports and other transportation facilities. Until such a plan is presented, the bill would require the Under Secretary to implement a plan to (1) screen at least 5 percent of cargo at airports and other transportation facilities and (2) adopt an "authentication policy for shippers to ensure that shippers use documents with adequate security features to prevent shippers that are not known to the Federal Government from shipping cargo under the name of known shippers." The bill has been referred to the Senate Committee on Commerce, Science, and Transportation.