Name: NoMo
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Employed as: Other, non-employee, for N/A
Posted: 11 February 2018
Interesting...explains a lot.
WASHINGTON — Federal investigators are still looking at how CSX railway
crews routed an Amtrak train into a parked freight train in Cayce, South
Carolina, last weekend. But even if CSX should bear sole responsibility
for the accident, Amtrak will likely end up paying crash victims'
legal claims with public money.
Amtrak pays for accidents it didn't cause because of secretive
agreements negotiated between the passenger rail company, which
receives more than $1 billion annually in federal subsidies, and the
private railroads, which own 97 percent of the tracks on which Amtrak
travels.
Both Amtrak and freight railroads that own the tracks fight to keep
those contracts secret in legal proceedings. But whatever the precise
legal language, plaintiffs' lawyers and former Amtrak officials say
Amtrak generally bears the full cost of damages to its trains,
passengers, employees and other crash victims — even in instances where
crashes occurred as the result of a freight rail company's negligence
or misconduct.
Railroad industry advocates say that freight railways have ample
incentive to keep their tracks safe for their employees, customers and
investors. But the Surface Transportation Board and even some federal
courts have long concluded that allowing railroads to escape liability
for gross negligence is bad public policy.
"The freight railroads don't have an iron in the fire when it comes
to making the safety improvements necessary to protect members of the
public," said Bob Pottroff, a Manhattan, Kansas, rail injury attorney
who has sued CSX on behalf of an injured passenger from the Cayce
crash. "They're not paying the damages."
© The Associated Press The wreckage of an Amtrak train, bottom, and a
CSX freight train lie next to the tracks in Cayce, SC., on Sunday, Feb.
4, 2018. The trains collided in the early morning darkness Sunday,
killing the Amtrak conductor and engineer…
Beyond CSX's specific activities in the hours before the accident, the
company's safety record has deteriorated in recent years, according to
a standard metric provided by the Federal Railroad Administration.
Since 2013, CSX's rate of major accidents per million miles traveled
has jumped by more than half, from 2 to 3.08 — significantly worse than
the industry average. And rail passenger advocates raised concerns after
the CSX CEO at the time pushed hard last year to route freight more
directly by altering its routes.
CSX denied that safety had slipped at the company, blaming the change
in the major accident index on a reduction of total miles traveled
combined with changes in its cargo and train length.
"Our goal remains zero accidents," CSX spokesman Bryan Tucker wrote
in a statement provided to The Associated Press. CSX's new system of
train routing "will create a safer, more efficient railroad resulting
in a better service product for our customers," he wrote.
Amtrak's ability to offer national rail service is governed by
separately negotiated track usage agreements with 30 different
railroads. All the deals share a common trait: They're "no fault,"
according to a September 2017 presentation delivered by Amtrak
executive Jim Blair as part of a Federal Highway Administration
seminar.
No fault means Amtrak takes full responsibility for its property and
passengers and the injuries of anyone hit by a train. The "host
railroad" that operates the tracks must only be responsible for its
property and employees. Blair called the decades-long arrangement "a
good way for Amtrak and the host partners to work together to get
things resolved quickly and not fight over issues of responsibility."
Amtrak declined to comment on Blair's presentation. But Amtrak's
history of not pursuing liability claims against freight railroads
doesn't fit well with federal officials and courts' past declarations
that the railroads should be held accountable for gross negligence and
willful misconduct.
After a 1987 crash in Chase, Maryland, in which a Conrail train crew
smoked marijuana then drove a train with disabled safety features past
multiple stop signals and into an Amtrak train — killing 16 — a federal
judge ruled that forcing Amtrak to take financial responsibility for
"reckless, wanton, willful, or grossly negligent acts by Conrail" was
contrary to good public policy.
Conrail paid. But instead of taking on more responsibility going
forward, railroads went in the opposite direction, recalls a former
Amtrak board member who spoke to the AP. After Conrail was held
responsible in the Chase crash, he said, Amtrak got "a lot of threats
from the other railroads."
The former board member requested anonymity because he said that
Amtrak's internal legal discussions were supposed to remain
confidential and he did not wish to harm his own business relationships
by airing a contentious issue.
Because Amtrak operates on the freight railroads' tracks and relies on
the railroads' dispatchers to get passenger trains to their
destinations on time, Amtrak executives concluded they couldn't afford
to pick a fight, the former Amtrak board member said.
"The law says that Amtrak is guaranteed access" to freights' tracks,
he said. "But it's up to the goodwill of the railroad as to whether
they'll put you ahead or behind a long freight train."
A 2004 New York Times series on train crossing safety drew attention to
avoidable accidents at railroad crossings and involving passenger trains
— and to railroads' ability to shirk financial responsibility for
passenger accidents. In the wake of the reporting, the Surface
Transportation Board ruled that railroads "cannot be indemnified for
its own gross negligence, recklessness, willful or wanton misconduct,"
according to a 2010 letter by then-Surface Transportation Board chairman
Dan Elliott to members of Congress.
That ruling gives Amtrak grounds to pursue gross negligence claims
against freight railroads— if it wanted to.
"If Amtrak felt that if they didn't want to pay, they'd have to
litigate it," said Elliott, now an attorney at Conner & Winters.
The AP was unable to find an instance where the railroad has brought
such a claim against a freight railroad since the 1987 Chase, Maryland,
disaster. The AP also asked Amtrak, CSX and the Association of American
Railroads to identify any example within the last decade of a railroad
contributing to a settlement or judgment in a passenger rail accident
that occurred on its track. All entities declined to provide such an
example.
Even in court cases where establishing gross negligence by a freight
railroad is possible, said Potrroff, the plaintiff's attorney, he has
never seen any indication that the railroad and Amtrak are at odds.
"You'll frequently see Amtrak hire the same lawyers the freight
railroads use," he said.
Ron Goldman, a California plaintiff attorney who has also represented
passenger rail accident victims, agreed. While Goldman's sole duty is
to get the best possible settlement for his client, he said he'd long
been curious about whether it was Amtrak or freight railroads which
ended up paying for settlements and judgments.
"The question of how they share that liability is cloaked in
secrecy," he said, adding: "The money is coming from Amtrak when our
clients get the check."
Pottroff said he has long wanted Amtrak to stand up to the freight
railroads on liability matters. Not only would it make safety a bigger
financial consideration for railroads, he said, it would simply be
fair.
"Amtrak has a beautiful defense — the freight railroad is in control
of all the infrastructure," he said. But he's not expecting Amtrak to
use it during litigation over the Cayce crash.
"Amtrak always pays," he said.
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