CIFFA Forwarder Magazine

21 THE FORWARDER | WINTER 2025 Moderator • Rui Fernandes – Partner, Gardiner Roberts LLP Speakers • Heather Devine – Chief Legal Officer, TRAFFIX • Marc S. Blubaugh – Partner and Co-Chair, Transportation & Logistics Practice Group, Benesch • Martin Abadi – Partner, Borden Ladner Gervais LLP In this session, legal experts weighed in on issues in transportation law and provided tips to boost legal protection for companies in some scenarios. For example, Martin Abadi started off by raising the topic of contracts that are master transportation services agreements. He noted that intermediaries might take on different roles depending on the mode of transportation they are using, and that their liability is connected only to the specific role they have taken for a particular project. Abadi’s tip to navigate this situation and minimize uncertainties is to delineate the different roles the company might play in its master services agreements and other relevant documents. Marc Blubaugh noted that the U.S. honours freedom of contract, so as much as someone wants to use CIFFA’s standard trading conditions, they can do so. When you get a contract, you really can’t sign even if you want the business; Business units will push back on contractual issues, legally Heather Devine works to create “outs” and termination clauses. Abadi agreed. “The last thing a business wants is their lawyers to impede a lucrative deal,” he said. “Risk management becomes essential in these instances.” To meet commercial objectives with reduced risk, solid contracts and insurance are important. Ultimately, though, lawyers make recommendations that will face commercial decision-making, Abadi pointed out. Blubaugh said: “Business analysis and risk management are essential, a core part of what any good lawyer is going to be doing.” They will seek to identify the most egregious, overreaching provisions and push back hard on those types of issues. In the end, though, a company that has been informed of issues may take on the business anyway. “If you go into it eyes wide open, so be it,” said Blubaugh. Commercial calibration, going through this business exercise, is important, he said. Blubaugh noted the upward trend in nuclear verdicts in the U.S. In 2024 alone, he said, the U.S. saw 135 verdicts over $10 million. Litigious actions are increasing and causing a lot of pain for business operators. Litigation financing is contributing to the rise in this statistic. It incentivizes attorneys to take cases they might not otherwise take and to be overly aggressive in their handling. Transportation is in the crosshairs of many lawyers. Blubaugh cited the Werner Transportation case in Texas that ended in the Texas Supreme Court, reversing a US$90 million verdict against the company. Companies that operate in the U.S. should ensure they have adequate and relevant insurance, said Abadi. In addition, they should look at reorganizing to protect their operations from legal destabilization. Having a compliance program (especially if you’re operating commercial vehicles) is a must. Devine noted the value of redundant systems. To explain, she said: “If we had a multimillion-dollar verdict against us, a redundant system of freight would allow one company to be taken out, but you can shift operations to other systems already in place.” She elaborated, suggesting creation of a holding company to protect a business’s primary revenues. Wholly owned subsidiary enterprises under that holding company provide some protection against excessive legal judgments. With the fast pace of AI development, Devine predicted that contract review in five years will be done by AI, replacing lawyers. At this time, however, Blubaugh said it’s easy to tell which contracts have been generated by AI. Legal experts weigh in on transportation law