Overmod,
The context started when I said this a few posts above:
"Also, it is quite possible that Harding, while being elevated to an Expert's position, simply did not know the securement rules. Somewhere in this trial coverage, I read that MM&A could not say what the proper number of handbrakes for securement was. Safety manager, Horan gave the wrong number when testifying in court."
Essentially, I was responding to Balt who said that Harding had enough experience to know exactly what was required to secure the train per the rules.
I am not at convinced that Harding knew the pertinent rule and instructions. I would bet that he did not. And to add some emphasis to my point about Harding not knowing, I pointed out that the MM&A safety manager did not even know the rules.
I do agree with your points about the minimum likely being far less that what is required by the test. It is just that I don't view those points as conflicting with the point I was making.
I agree that many rules specify 'hard' minima. What I am saying is that these are far, far, far short of the "minimum number of brakes needed to hold that train on that grade" -- they apply to shorter consists, in which things like unexpected slack release or foundation binding might make a technically-satisfactory pull test become insufficient over subsequent time.
This was as things turned out a 9100 ton consist on a 2% grade, a situation where most of the rule minima would have proven insufficient on pull test. That is the context we are discussing.
Seven of Nine...(sigh)...what happened to her?
Overmod I would not be distracted by this seven versus nine business (although being distracted by seven-of-nine business might be quite a different thing!) as it is a couple of minimum numbers with utterly no application to securement of that train on that grade. Proof of that to me is that the train started moving, based on the recorded telemetry, while there was still reasonably substantial air on the independent. Absent any factor of safety in securement not absolutely provided in a 'technically successful' normal pull test, one of the arguments against making it the sole legal definition of safe rather than just adequate securement. So far, about the only non-fribbling guide to actual safe securement of HHFTs on grades has been, somewhat ironically, the one from CP that was posted earlier in one of these threads. It is instructive to consult that and determine what ITS 'minimum number of handbrakes' is (hint: it ain't seven vs. nine)
I would not be distracted by this seven versus nine business (although being distracted by seven-of-nine business might be quite a different thing!) as it is a couple of minimum numbers with utterly no application to securement of that train on that grade.
Proof of that to me is that the train started moving, based on the recorded telemetry, while there was still reasonably substantial air on the independent. Absent any factor of safety in securement not absolutely provided in a 'technically successful' normal pull test, one of the arguments against making it the sole legal definition of safe rather than just adequate securement.
So far, about the only non-fribbling guide to actual safe securement of HHFTs on grades has been, somewhat ironically, the one from CP that was posted earlier in one of these threads. It is instructive to consult that and determine what ITS 'minimum number of handbrakes' is (hint: it ain't seven vs. nine)
My point in bringing up the quote from Horan about 7 versus 9 handbrakes had nothing to do with which number was sufficient. It was to show that Horan was referring to a MINIMUM number of handbrakes required.
Initially, I made the point that MM&A apparently did not know the required number of handbrakes stated by tables and charts. You took issue with that, saying that there is no minimum number specified in charts. You said that the numbers in charts were only suggestions, and that the only number required is what passes the securement test. I am saying that in addition to that number that passes the test, there are also numbers stated in the charts that are REQUIRED MINIMUM numbers of handbrakes.
So there are two thresholds to meet. One is the required minimum number in charts, and the other is the number it takes to pass the securement test. If the latter is less than the former, the former must be applied.
In reviewing the accident report, I find that it does confirm my recollection that charts and tables indicate a minimum number of hand brakes required. I do not interpret this as being merely a suggested number.
Here are selected quotes referring to the minimum number of handbrakes required according to charts and rules, starting at 1.11 Hand brake effectiveness test
…to be included in the minimum required number of hand brakes. For example, if a company’s special instructions required at least 10 hand brakes to be applied,
Special instructions will indicate the minimum hand brake requirements for all locations where equipment is left.
Section 112-1 (Hand Brakes) in MMA’s GSIs provided instructions on the minimum number of hand brakes required,…
Section 112-2 (Hand Brakes: Reduced Minimum Number, Designated Specific Locations) provided specific locations where the minimum number of hand brakes had been reduced.
When leaving railway equipment, the minimum number of hand brakes must be applied as indicated in the following chart. Additional hand brakes may be required;…
In reference to the minimum number of hand brakes in the preceding chart,…
CPR’s instructions for determining the minimum number of hand brakes were to divide the number of cars to be left unattended by 10, and then add 2.
it was acceptable to include the locomotive hand brakes as part of the minimum required number of hand brakes.
That was an interesting development.
Now for the federal trial.
Overmod Euclid Somewhere in this trial coverage, I read that MM&A could not say what the proper number of handbrakes for securement was. Once and for all: they did say what it was: enough to keep the train from moving when pushed or pulled with the air brakes fully released. Any other number provided was essentially an estimate, a guess to prevent perhaps unnecessary trips back to set additional brakes before conducting the actual test with airbrakes released that determined the proper number of handbrakes for securement. Why do we keep returning to this issue of initial number of handbrakes to set as if it's some magic override that negates over three decades of experience?
Euclid Somewhere in this trial coverage, I read that MM&A could not say what the proper number of handbrakes for securement was.
Once and for all: they did say what it was: enough to keep the train from moving when pushed or pulled with the air brakes fully released.
Any other number provided was essentially an estimate, a guess to prevent perhaps unnecessary trips back to set additional brakes before conducting the actual test with airbrakes released that determined the proper number of handbrakes for securement.
Why do we keep returning to this issue of initial number of handbrakes to set as if it's some magic override that negates over three decades of experience?
I will have to review the accident report again. I agree that the ultimate conclusion of how many to set is based on the success of the handbrake effectiveness test.
However, as I recall, while the tables may be suggest quantities of handbrakes likely needed on a reference basis only; those same tables do also specify mandated minimum quantities of handbrakes that must be set regardless of any results of handbrake effectiveness testing. But I will check the MM&A special instructions again just to make sure.
In any case the idea seems to be also reinforced MM&A safety officer Michael Horan testifying in court that he told police that a minimum of nine handbrakes should have been applied. Why would he say that if the number could only be determined by a handbrake effectiveness test?
Here is a reference to that statement by Mr. Horan:
http://www.cbc.ca/news/canada/montreal/lac-megantic-michael-horan-1.4352606
“The Montreal, Maine and Atlantic (MMA) railway employee in charge of safety and training in Quebec said after the Lac-Mégantic disaster, he told police a minimum of nine handbrakes should have been applied to the train parked at Nantes, Que., on July 5, 2013.
In the Crown's opening statement at the start of the trial before Superior Court Justice Gaétan Dumas, the prosecution said it will enter into evidence a tape recording of Harding telling Labrie after the derailment that he had only applied seven handbrakes to the train.
Under cross- examination at the Sherbrooke courthouse Thursday, Horan told the court he based his police statement on the number of handbrakes that should have been applied on a chart in a handbook on railway safety regulations.”
EuclidSomewhere in this trial coverage, I read that MM&A could not say what the proper number of handbrakes for securement was.
Randy Stahl There is still one more trial to go , this was the Quebec trial , there is still federal trail yet to come.
There is still one more trial to go , this was the Quebec trial , there is still federal trail yet to come.
When will that be and who will be the defendants?
BaltACDHarding's position rises above that of a reasonable person. As the operator of the equipment he is elevated to the Expert's position and must be held to a higher standard.
I would not conclude that the only standard they held harding to is his comparability to a standard "reasonable person." They had to account for the fact that he was an experienced locomotive engineer. Otherwise if he were only a reasonable person, he would not have known the first thing about how to secure the train. It would be extremely interesting to hear the detailed analysis from someone who was inside of the trial.
Also, it is quite possible that Harding, while being elevated to an Expert's position, simply did not know the securement rules. Somewhere in this trial coverage, I read that MM&A could not say what the proper number of handbrakes for securement was. Safety manager, Horan gave the wrong number when testifying in court.
selectorIt seems they concluded that, if they had been in the same culture, with its norms, values, and practices, they would probably have done the same things. There was no malice, no ill will, no intentional negligence. The jury, each member deemed a 'reasonable person', or assuming for themselves that they possess the associated qualities, would not have acted differently except with the bias of hindsight. That's not the way to convict people.
Harding's position rises above that of a reasonable person. As the operator of the equipment he is elevated to the Expert's position and must be held to a higher standard.
Never too old to have a happy childhood!
It seems they concluded that, if they had been in the same culture, with its norms, values, and practices, they would probably have done the same things. There was no malice, no ill will, no intentional negligence. The jury, each member deemed a 'reasonable person', or assuming for themselves that they possess the associated qualities, would not have acted differently except with the bias of hindsight. That's not the way to convict people.
3 former MMA rail workers acquitted in Lac-Mégantic disaster trial
http://www.cbc.ca/news/canada/montreal/lac-megantic-criminal-negligence-verdict-1.4474848
And here:
http://leaderpost.com/pmn/news-pmn/canada-news-pmn/newsalert-lac-megantic-accused-all-acquitted/wcm/dba9c054-5b64-4e07-8f5c-1fce8d241463
Norm48327 https://en.wikipedia.org/wiki/Section_13_of_the_Canadian_Charter_of_Rights_and_Freedoms
Thanks, that saved me considerable time.
Overmod tree68 Remember that this is a 35-year engineer, almost certainly aware at some point of CP rules regarding number-of-brake increases for safe securement on grades. While I do not know if there is a right against self-incrimination in Canada comparable to our 5th Amendment, it might have been wise for Harding to quietly refuse to answer whether he had seen CP policy on this at some point, as if he had it would be clear even to Pepsis that 'seven brakes' wouldn't come anywhere near safely holding that train on that grade. It was clear from the event physics that had Mr. Harding done something as simple as release the independent, as company rules required for the securement test he needed to perform, the train would have been observed to move just as it did when the independent bled down to about -- what was it, 16-17lb set? Therein, as far as I'm concerned, lies enough 'negligence' to justify a guilty verdict -- on that specific ground -- no matter how many red herrings about other aspects of MM&A 'safety culture' as practiced by the Stooges and perhaps other local railroaders are introduced. Where Mr. Labrie comes into this is a bit more involved -- it was on his orders that no alternate engine was started to maintain air pressure, knowing as he did that the single running engine was not only shut down for the fire, and perhaps as he should that it was blowing enough oil that it would likely not keep running until morning. And likewise it was on his orders that Harding was kept from returning to the train when he offered to do so, with time still on his HOS as things turned out. I will not get into the question of who tolerated all that reported activity of securing MM&A trains without releasing the independent for the test, at least not yet -- but I have very little doubt, given the published evidence of company procedure, that it was a failure of local supervision no matter how slipshod corporate oversight of incompetent local supervision might have been. Again, proper railroaders don't play games with known principles of safe train securement, especially when one of them, Mr. Labrie if I recall correctly, practically wet his pants when he found out there was 'fire' associated with a fuel train. I am not convinced that the third guy has any actionable criminal liability that would be served through the justice system; certainly nothing I can see that would make operations any safer by making him an example pour encourager des autres. I may change that opinion when I see the trial transcripts.
tree68
Remember that this is a 35-year engineer, almost certainly aware at some point of CP rules regarding number-of-brake increases for safe securement on grades. While I do not know if there is a right against self-incrimination in Canada comparable to our 5th Amendment, it might have been wise for Harding to quietly refuse to answer whether he had seen CP policy on this at some point, as if he had it would be clear even to Pepsis that 'seven brakes' wouldn't come anywhere near safely holding that train on that grade.
It was clear from the event physics that had Mr. Harding done something as simple as release the independent, as company rules required for the securement test he needed to perform, the train would have been observed to move just as it did when the independent bled down to about -- what was it, 16-17lb set? Therein, as far as I'm concerned, lies enough 'negligence' to justify a guilty verdict -- on that specific ground -- no matter how many red herrings about other aspects of MM&A 'safety culture' as practiced by the Stooges and perhaps other local railroaders are introduced.
Where Mr. Labrie comes into this is a bit more involved -- it was on his orders that no alternate engine was started to maintain air pressure, knowing as he did that the single running engine was not only shut down for the fire, and perhaps as he should that it was blowing enough oil that it would likely not keep running until morning. And likewise it was on his orders that Harding was kept from returning to the train when he offered to do so, with time still on his HOS as things turned out. I will not get into the question of who tolerated all that reported activity of securing MM&A trains without releasing the independent for the test, at least not yet -- but I have very little doubt, given the published evidence of company procedure, that it was a failure of local supervision no matter how slipshod corporate oversight of incompetent local supervision might have been. Again, proper railroaders don't play games with known principles of safe train securement, especially when one of them, Mr. Labrie if I recall correctly, practically wet his pants when he found out there was 'fire' associated with a fuel train.
I am not convinced that the third guy has any actionable criminal liability that would be served through the justice system; certainly nothing I can see that would make operations any safer by making him an example pour encourager des autres. I may change that opinion when I see the trial transcripts.
https://en.wikipedia.org/wiki/Section_13_of_the_Canadian_Charter_of_Rights_and_Freedoms
Norm
tree68was he aware that it wasn't secured IAW [in accordance with] whatever rules were in effect at the time?
It would not surprise me if there are people on the jury who just cannot get past the idea that the deaths of 47 people must be paid for by a conviction.
However, completely setting aside the issue that 47 people were killed by a train that Harding failed to secure, if his actions do not fit the definition of Criminal Negligence, he has to be found not guilty.
https://www.thestar.com/news/canada/2018/01/19/lac-megantic-disaster-trial-jury-to-deliberate-for-ninth-consecutive-day.html
Still in training.
EuclidBut how could the engineer foresee avoidable danger manifesting if he believed he had secured the train properly and according to the rules? That would be impossible.
This is where questions about a poor safety culture come into play. While the engineer may have believed the train was adequately secured (which it was, right up until it wasn't), was he aware that it wasn't secured IAW whatever rules were in effect at the time?
Larry Resident Microferroequinologist (at least at my house) Everyone goes home; Safety begins with you My Opinion. Standard Disclaimers Apply. No Expiration Date Come ride the rails with me! There's one thing about humility - the moment you think you've got it, you've lost it...
switch7frg OK, the trial has entered the 4th week of what month and year??
Look a the first post of the thread for a time frame!
OK, the trial has entered the 4th week of what month and year??
Y6bs evergreen in my mind
In looking at the definition of criminal negligence, and the charge of it against Harding, the crime is not about whether the engineer broke the rules. That determination is easy.
According to references, criminal negligence is a 'misfeasance or 'nonfeasance' where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest.
Certainly, danger manifested with the occurrence of the Lac Megantic runaway. And the manifestation of that danger was avoidable if it was foreseen.
But how could the engineer foresee avoidable danger manifesting if he believed he had secured the train properly and according to the rules? That would be impossible.
From http://www.thecanadianencyclopedia.ca/en/article/jury/
Quote: If, after a reasonable time, there appears to be no hope of a jury reaching agreement (a "hung" jury), the judge may call for a new jury or set the case for retrial.
From a different source: http://www.torontodefencelawyers.com/blog/general-category/jury/
Quote: When a jury cannot reach a unanimous verdict it is known as a “hung jury”. In the case of a hung jury, a mistrial will be declared and the case may be retried before a new jury.Regards, Volker
Don't know how such things work in the Canadian courts. I would imagine that if the judge declares a mistrial, they're back to square zero and the case can be retried. Both sides have an opportunity to rethink their strategies and then go at it again.
I can't say as I've ever heard of dissolving the jury then deciding the case as a bench trial.
That sounds like the court can change it to a bench/judge trial.
Interesting.
The jury has resumed deliberations for Day 7.
Yesterday the jury told the judge that they are at an impasse. The judge told the jury:
“The law gives me the power to dissolve the jury if it appears that holding you longer would be useless,” Dumas said. “This power can’t be used lightly or prematurely."
In what way does the process go forward if the judge dissolves the jury?
This was fairly predictable. The technical nature of the crime alone is mindboggling with all of the rules about number of handbrakes, testing with the independent set, a rule requiring the independent to be left set after securement, a rule requiring the automatic brake to be left released, a culture of corner cutting tending to normalize Harding's actions, etc.
Then you add to that, the difficulty of understanding the charge of criminal negligence with its conditions of Reasonalble Person, Reasonable and Prudent Person, and Reasonable Doubt.
Yesterday, the jury asked for a legal dictionary to define these terms, and they were told they must use their common sense of the terms. Today, they are unable to agree on their deliberation.
Oh, no, a mistrial is becoming more and more possible.
Lac-Megantic jurors say they are at an impasse on Day 6 of deliberations
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