Whither the common carrier?

Posted by Malcolm Kenton
on Monday, February 12, 2018

Recent events in railroading have gotten me cogitating over two important legal constructs that have particular bearing on the relationship between passenger train operators and their host railroads, typically freight carriers. I am not a lawyer, but I have an M.A. in transportation policy and a B.A. in political science and have read considerably on legal theories and court cases. I broach these topics in hope of spurring broad dialogue and consideration of a way forward that keeps host railroads whole, profitable and able to move freight without too much interference, while also allowing tenant passenger train operators (both Amtrak and other companies, with or without federal or state government backing) to access needed routes at a fair and affordable cost and operate passenger trains on their advertised schedules.

Passengers board Amtrak's New York-bound Cardinal at Charlottesville, VA on Nov. 6, 2011. Photo by Matt' Johnson/Flickr.com.
The first is the concept of the common carrier, which holds that a transportation provider must accept all customers (passengers or freight shippers) who are willing and able to pay the established fares, rates or tariffs. Nearly all railroads, along with airlines, marine ferry, cruise and shipping lines, trucking and intercity bus companies, are chartered as common carriers. Until Amtrak’s 1971 formation, federal regulators held the common carrier obligation to include the provision of a reasonable level of passenger service, and until the 1980 Staggers Act, railroads were required to do business with any shipper, no matter how small their load, at the regulated rates.

My understanding is that the Rail Passenger Service Act of 1970 transferred the railroads’ common-carrier obligation to provide passenger service to Amtrak, because the railroads that opted into Amtrak were no longer required to operate their own passenger trains after May 1, 1971. But this begs the question: if Amtrak were to go out of business, or if it were to become a managing agency that awarded contracts to operate passenger routes to other companies through competitive bidding, would the common carrier obligation remain in place? In other words, does a legal requirement for some entity to be a common carrier of passengers by rail exist independent of Amtrak’s existence? And would this obligation automatically revert to the descendants of the private (now freight-only) railroads that preceded Amtrak if the national carrier were to suddenly cease to exist?

On the freight side, most of the Class Is, CSX in particular, have been allowed to gradually become more and more selective about what types and volumes of freight they carry. Class Is are leery of seeking any new customer that cannot guarantee at least a carload — sometimes even a trainload — on a regular basis. Gone are the days when railroad marketers would beat around the bush in every locality seeking all possible business. Now all but a few short lines are ill-equipped to handle less-than-carload volumes. After decades of fighting the competition from trucking companies that benefit from government-subsidized roads, most railroads seem to have consigned many potential customers to truckers. Does this make the railroads “selective carriers” rather than “common carriers?” And in the post-Staggers environment, does there remain any mechanism to enforce whatever common carrier principle may still exist?

Unless future circumstances give affected travelers or shippers (or organizations representing them) reason to bring these questions to court, they will probably be resolved in a de-facto manner. As the Brightline (privately operated and financed) and Herzog/Keolis/First Transit (privately operated but mostly government financed) models of passenger service provision become more established and start to grow into new markets, it will be interesting to see if there is either a legal or regulatory determination regarding the application of the common carrier principle.

In my next column, I’ll ponder over a legal arrangement that may be called into question in light of the horrific crash between Amtrak train 91 and resting CSX train Q210 in Cayce, S.C. on Feb. 4. In the meantime, if you have any thoughts about the present and future of the common carrier obligation, and the question of what happens to passenger carriage if Amtrak ceases to be (especially if you’re a lawyer), please share them in the comments. 

Full disclosure: The primary client of my independent consultancy is Herzog Transit Services, Inc., a contract operator/maintainer of commuter rail and streetcar systems that is seeking to enter the intercity passenger rail market.

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