TT Talk - Hijacking prevention in North America and Mexico
George Radu, based in the Club's San Francisco office, provides this review of hijacking:
Claims involving hijackings have been on the rise in recent years, and many carriers are suffering losses for cargo shipped under through bills of lading. Analysts estimate hijackings cost the shipping industry tens of millions of dollars a year.
Recourse by carriers against responsible truckers can be complex or result in a lesser recovery due to the application of law or trading conditions. Furthermore, where the truckers carry insurance coverage, this may be prejudiced because many cases which initially appear to be a hijacking turn out to be a theft in which the driver was complicit. In most cases, there is at least some driver negligence, and this also can create coverage issues, as the slightest hint of driver involvement or negligence may allow the trucker's insurance company to deny coverage.
Legal liability for hijacking claims often falls on the carrier that arranged the trucking. In the United States all truckers are required to sign the UIIA (Uniform Intermodal Interchange Agreement) which requires truckers to carry a minimum of US$100,000 cargo coverage. There is no uniform agreement in Canada and Mexico and the cargo insurance is usually insufficient to satisfy the claim.
Below you will find general information designed to assist in preventing hijackings.
South American and US Hotspots
In Mexico, where the most hijackings are being reported, the states of Queretaro, Michoacan, Puebla, San Luis Potosi and Sinaloa are all considered hotspots. Other places within South America include Honduras, Guatemala, El Salvador and Nicaragua.
US ports reporting the highest amounts of hijackings are Miami, NY/NJ, Long Beach, Los Angeles and San Francisco.
The following hijacking prevention measures are recommended for carriers:
- Whenever possible only accept port to port bookings to/from Mexico
- If door moves to/from Mexico must be accepted, only do so if the customer agrees to pay for security service
- Keep fixed driving routes
- Maintain shipment confidentiality
- Conduct employee background checks
- Consider using guarded convoys/escorts
- Require the driver to carry a 24-hour emergency telephone number at all times & to lock the vehicle every time a stop is made.
Although some of these items listed may be outside of the carrier's immediate control the carrier should recommend these preventative measures to the truckers they hire. An additional option would be to only hire truckers who are equipped with theft prevention technology and have hijacking prevention procedures in place.
Legal defenses for hijacking
In Mexico, the court system considers hijacking during inland transport to be a 'fortuitous case' (force majeure), which exonerates the carrier from liability. According to article 2111 of the Mexican Federal Civil code no parties are liable in a fortuitous case unless:
1. The carrier in some way caused or contributed to the loss
2. The carrier has accepted liability for losses
3. The trucking company lacked the valid federal permit necessary to carry cargo on federal roads
4. There is a law which specifically imposes liability on the carrier
5. Local regulations governing inland transport were not duly incorporated into the bill of lading
6. The loss did not take place while the container was transported on a federal road.
In the United States hijacking is not considered a fortuitous case and the carrier must rely on the trucker's insurance coverage to pay the claim.
If the trucker does not have enough coverage to pay the claim, the carrier could be liable for the difference.
Carriers should be sure to follow all prevention measures listed previously to ensure they will be seen by courts as having taken all reasonable precautions.