From Chase to Cayce: Is justice served by “no fault” contracts?

Posted by Malcolm Kenton
on Wednesday, February 14, 2018

My last column raised some questions regarding the legal principle of the common carrier and the extent to which railroads actually are obligated to carry any passenger or cargo as long as a ticket is purchased or a waybill is paid. Now I investigate another legal reality that colors the relationship between passenger train operators and host railroads, one that received some welcome coverage from the Associated Press in a story that appeared in many newspapers on Sunday or Monday.

An aerial view of the site of the Feb. 4 collision involving Amtrak's Silver Star in Cayce, S.C. Photo by Jeff Blake/Associated Press.[/caption]Lawsuits that have been filed, and likely some yet to be filed, in response to the tragic Feb. 4 wee-hour head-on collision between Amtrak train 91 and standing CSX train Q210 in Cayce, S.C. raise the question: to what extent host railroad CSX will be held liable for the loss of two Amtrak crew members’ lives, the hundred-plus passenger injuries and the millions of dollars in damage that resulted? While the National Transportation Safety Board has yet to determine the official cause of the wreck, preliminary reports indicate that it was precipitated by a switch having been left locked in the open position, sending the southbound Silver Star onto a siding occupied by a standing freight train, whose crew had tied it down and vacated it for the night. The Federal Bureau of Investigation and Federal Railroad Administration are also involved in the ongoing investigation.

Since Amtrak’s 1971 beginnings, host railroads have imposed conditions on the passenger carrier’s continued use of their private infrastructure on an incremental cost basis, as mandated by the Amtrak statute. Most of the terms under which Amtrak is granted such access are tucked away in 30 individual contracts, the details of which are kept away from the public eye. One of these conditions is that Amtrak must pay the damages resulting from any mishap involving one of its trains, even if the NTSB or a court determines the cause to be the host railroad’s gross negligence or misconduct. 

This is known as the “no fault” or “but for” doctrine, as the host railroads maintain that they would not be exposed to such liability “but for” the presence of Amtrak’s trains on their tracks. In other words, the freight railroads argue, the damage would not have occurred if the Amtrak train weren’t there. It appears to have only been incorporated into Amtrak’s operating agreements after the disastrous 1987 Chase, Md. crash in which 16 were killed. This tragedy occurred when a negligent Conrail freight train crew operating over the Amtrak-owned Northeast Corridor under the influence of marijuana passed red signals and collided with Amtrak's northbound Colonial. It was the most recent incident after which a freight railroad paid damages for Amtrak passengers, crew or equipment.

From the host railroads’ perspective, “but for” makes sense in some ways, but seems patently unfair to Amtrak and to the taxpayers who may ultimately foot Amtrak’s bill. It is understandable that the host railroads insist upon it out of rational self-interest, giving the litigiousness of American society, the uncertainty of jury verdicts, and other vagaries of the U.S. legal system. There is no requirement nor incentive for host railroads to reach a more generous accord with tenant passenger carriers — the Amtrak statute only grants it access at incremental cost and priority over freight transportation, but does not dictate the terms of access or spell out how priority is to be determined and enforced.

As the AP story mentions, a 2004 Surface Transportation Board ruling gives Amtrak grounds to pursue negligence claims against host railroads, but so far Amtrak has declined to exercise this right and no other plaintiff has challenged a host railroad to pay up. Checks for damages stemming from wrecks occurring since 1987 have all come from Amtrak; it is unknown what portion of those sums was paid by the host railroad, if any. However, the widow of Michael Cella, the Amtrak conductor killed in the Cayce crash, filed suit Feb. 9 explicitly seeking damages from CSX as well as Amtrak. A passenger on the train also sued CSX on Feb. 8. If damages are awarded against CSX, and the Class I is in fact made to pay, might this signal a loosening of the “no fault” provisions in Amtrak-host railroad contracts?

The “but for” doctrine contributes to the high cost of liability insurance for passenger operations, which is one of the biggest impediments to existing operators expanding passenger service and to the entrance of new operators into the market. Other factors include the lack of a crash-avoidance safety culture in North American railroading, unlike in most other parts of the world. Work will need to be done on multiple fronts to make liability less of an obstacle to growing passenger rail, while making train travel safer in the process.

Ultimately, however, judgment on the appropriateness of “no fault” agreements should rest on what makes for the most just outcome. The American ideal of justice stems from the consensus of a jury of one’s peers, reached after careful consideration of the known facts of the case. If such a consensus determines that it would be just for a host railroad to compensate the victims of a mishap involving an Amtrak train, then justice should be done.

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