daveklepper I've done business in Canada. Saying that not obaying rule 112 "is not disobaying the law" is the same is speeding by not obeying a speed limit sign "is not disobeying the law." I'm saying the judge was wrong and I will stick by that opinion. If you were involved in a traffic accident and the perpertrator was unable to stop in time, would the judge rule that he or she did not disobey any law? There is no difference in the two cases. Rule 112 is/was an enforceable law promulgated by the Canadian Government. The judge may have not thought about it ---- because of the general irrevelence of railroads in his mind, with rail safety not as important as highway safety. But that is pure speculation. I have no way of knowing why the judge made the mistake he did, but my opinion remains that he made a mistake.
I've done business in Canada. Saying that not obaying rule 112 "is not disobaying the law" is the same is speeding by not obeying a speed limit sign "is not disobeying the law."
I'm saying the judge was wrong and I will stick by that opinion.
If you were involved in a traffic accident and the perpertrator was unable to stop in time, would the judge rule that he or she did not disobey any law?
There is no difference in the two cases. Rule 112 is/was an enforceable law promulgated by the Canadian Government. The judge may have not thought about it ---- because of the general irrevelence of railroads in his mind, with rail safety not as important as highway safety. But that is pure speculation. I have no way of knowing why the judge made the mistake he did, but my opinion remains that he made a mistake.
So while it may have been easier to convict Harding on just the basic negligence of breaking Rule 112, that charge may have been deemed insufficient to fit the crime.
So, I don't see that the judge or the Crown made a mistake by not seeking a conviction on only the violation of Rule 112.
There are many things that might have prevented the wreck, but I do not conclude that the people responsible for not providing those things are guilty of causing the disaster. They were free to choose not to use a derail because none was required by law.
However, I do think that anyone with common sense and eyes open would have seen that the overall risk of parking oil trains at Nantes was way too high for amount of lives and property that were at stake. Even if handbrakes were properly applied in the correct quantities, the risk would still be way too high. This should have been obvious to everyone who saw it.
daveklepperAnd I willing to stand by the assertion that Harding Broike the Law and that the Judge Made a Serious Error.
IIRC the trial was in a Superior Court not a Federal Court. As the Railroad crossed the border between Canada and the USA it worked under Federal law. So the court in Sherbrook might have the wrong court for the rule 112 violation.
https://www.tc.gc.ca/eng/tcss/RSA_review/chapter4-374.htm
Excerpt from the link: Some 34 Canadian railways1 have interprovincial or Canada-U.S. operations and are therefore regulated by federal law. These include the two major freight-carrying railways, CN and CP,2 the passenger rail company VIA Rail, and more than 30 short line companies. Another 62 railways3 (excluding industrial lines) operate entirely within a single province and are, therefore, regulated by provincial governments.
Someone said here that there is a Federal trial still pending.Regards, Volker
Yes a derail might have prevented it.
A airhose pigtail would have dumped the air when the train moved maybe stopping it.
New locomotives might have prevented it.
PTC may have at least slowed it down.
Bad track might have derailed it outside of town.
Handbrakes would have prevented it.
On a high-speed main line like the BNSF Transcon, obviously one would not install a derail. But a permanently installed derail on a relatively low-speed line need not in any way be a safety hazrd, with ample time for the engineer to veiw the target symbol and stopping if the derail is active. On a mountain railroad like Saluda, the derail is normally active and deactivated when the train approaches at an apporpriately low speed. On MM&A it should normally have been normally deactivated and activated only during the time when a train was parked.
Very simple to arrange and very safe.
Overmod, there are types of installed derails that do not pose a safety hazard. The split rail is one. And regarding portable derails, one would be placed right in front of the locomotive in this case, and no long hike along the length of the consist would be necessary. And yes there are cases of short trains and single units of light locomotives going through portable derails and staying on the track, but the chances of a multi-locomotive consist going through, at low speed, and all not derailing, are pretty slim. Only one set of locomotive wheels would have averted the tragedy, since those that follow would also derail.
Overmod daveklepper and the lack of the needed derail is the physical proof that it was not imiportant ... I believe if Burkhardt (note sp.) had known about the parking and lack of derail, something would have been done about it. I believe there have been quotes from the 'real railroaders' on here why a fixed derail on active main is a moron-class idiocy, and other quotes that covered why skates or portable derails might be grossly ineffective and pose as many or more safety hazards for HHFTs as their use ... assuming you can get stooge single-man crews to walk the length of the consist to place them and then have the replacement do so again to retrieve them. This is not actual safety; it's feel-good politically oriented safety. And no substitute for proper consist tie-down in the first place. Meanwhile, Ed Burkhardt almost certainly 'knew' about the chosen location for the Canadian-American handover, close to the border and not blocking road crossings during the night. I am still waiting for objective proof that the cockamamie idea of securing trains depending on the independent was practiced on the American side of the railroad. Perhaps it was; the MM&A rules sure say different.
daveklepper and the lack of the needed derail is the physical proof that it was not imiportant ... I believe if Burkhardt (note sp.) had known about the parking and lack of derail, something would have been done about it.
I believe there have been quotes from the 'real railroaders' on here why a fixed derail on active main is a moron-class idiocy, and other quotes that covered why skates or portable derails might be grossly ineffective and pose as many or more safety hazards for HHFTs as their use ... assuming you can get stooge single-man crews to walk the length of the consist to place them and then have the replacement do so again to retrieve them. This is not actual safety; it's feel-good politically oriented safety. And no substitute for proper consist tie-down in the first place.
Meanwhile, Ed Burkhardt almost certainly 'knew' about the chosen location for the Canadian-American handover, close to the border and not blocking road crossings during the night. I am still waiting for objective proof that the cockamamie idea of securing trains depending on the independent was practiced on the American side of the railroad. Perhaps it was; the MM&A rules sure say different.
Thanks to Chris / CopCarSS for my avatar.
daveklepperand the lack of the needed derail is the physical proof that it was not imiportant ... I believe if Burkhardt (note sp.) had known about the parking and lack of derail, something would have been done about it.
Handbrakes can fail. Not likely but possible. After thinking it through, the lack of a derail was an even greater contributor to the tragedy than Hardings Breaking The Law. This was absent at the trial
And I willing to stand by the assertion that Harding Broike the Law and that the Judge Made a Serious Error.
cx: I believe your attitude, while understandable and certainly fair to individuals, is by no means fair to the Railroad Industry in general. Just as the judge's considering Rule 112 as "not a law" unfair to the railroad industry in general. Safety is extremely important. It was obviously not imiportant at MM&A, and the lack of the needed derail is the physical proof that it was not imiportant. Huge mistakes like this don't just happen. Some one person is resonsible. And he is not the one who is involved in daily on the equipment operations. I believe if Burkhart (Sp?) had known about the parking and lack of derail, something would have been done about it. I also some operating person did point this matter out and was told to keep quiet. By whom and who ordered this response?
I'm not interested in seeing people in jail. I am interested in railroad safety being a matter of great importance, in Canada and the USA and everywhere in the World.
1. The responsibility of the safety of the train and its safe interference with the comunity belongs to the engineer, or conductor and engineer with a two-man crew. And manned trains are essential unless the system is comletely closed like an airport people-mover, and even there at least one person should provoide contsant supervision of the total system.
2. Management is resonsible for a Safety First culture that compliments and furthers the resonsibilities of the engineer.
It is fair to say that some degree of negligence prevailed at all levels of the hierarchy, and to single out any particular individual as the fall guy is questionable. In the operating culture that existed, the engineer did what was standard accepted practise. It had proved perfectly adequate on many previous trips. He was not showing "wanton or reckless disregard for the lives or safety of other persons" since at the time he left the train it was parked just as usual and there was no reason to expect anything different this time. Hindsight showed otherwise, of course, but to describe his actions, and those of the co-accused, as wanton and reckless is a real stretch.
If it had been a manifest train that derailed, with no inferno or fatalities, we would likely not even be having this court case and discussion, even though the actions of the individuals were the same. While it could be argued that a crude oil train required a greater level of care, considering the various hazardous commodities often carried in any mixed freight even that argument is pretty weak.
John
But it is entirely possible that the real single individual, a person who may have even hid some matters from owners and investors (like parking a train on a donwngrade without a derail) is now far away from the scene, completeloy untouched, and truly most responsible for the lack of safety culture. We just don't know.
Doesn't really matter at this point to what degree each or all were irresponsible or negligent. They're paying the price. Hopefully they land on their feet in some other career.
Perhaps it helps to read the Canadian law?
219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
Definition of duty
(2) For the purposes of this section, duty means a duty imposed by law.
Copied from this website: http://laws-lois.justice.gc.ca/eng/acts/C-46/section-219.htmlRegards, Volker
Again, motive is not required in the USA for criminal neglegnece. (I served on at least 15 juries in New York City over the period 1970-1996, and at least one case involved criminal neglegence.)
But the real failure of the prosecution is to find the specific individual who is really responsible for the tragedy. Who is he? The best evidence of a lack of safety culture at MM&A is the absene of a derail, and a guaranteed effective one, possibly including a run-away track, where a train is Regularly Parked on a Downgrade. Who was the highest authority in the MM&A hirarchy that knew this and did nothing about it. That person, whoever he is, is far more guilty of the tragedy than Harding.
No method of securing a train is absolutely perfect. Even handbrakes can fail. Not likely, but they can.
One can imagine that the lack of safety culture allowed Harding to completely forget 112, even if it was in the rulebook he carried. One can also suspect the MM&A may have had the kind of culture that forced engineers to actually ask for permission to do anything slightly outside the normal routine, even if that routine was an unsafe routine. Such a combination of very dictatorial and closed-minded management and a lack of safety culture is a sure path to a tragedy.
In the USA, criminal neglegence is neglegence that causes bodily harm, and no intent is required for this charge. I would really be surprised if Canada is different.
The driver of a hit-and-run accident is charged with more than criminal neglegence, because he also deliberately avoided arrest and notification for aid to the victim. If he returned to the scene and assisted, then only criminal neglegence is involved. In neither case is intent to cause an accident involved.
Again, Harding had fouir opportunities to fulfill a professional locomotive engineer's responsiblity for the safety of his train and its effects: (1) securing the train in accordance with Rule 112, (2) ahutting down the defective locomotive and replacing it with a good one in the consist (absoliutely no need to call a supervisor on that), (3) recognizing the need to do that with oil on th taxicab windshield and thus also the possibility of the locomotive shutting down because of low oil, and (4) returning to the train with the knowledge of the fire and the locomotive shut down.
A dispatcher is supposd to insure safety by making sure that railroad is safe for the train to occupy the track. The safety of the trsin itself is the responsibility of the engnineer. And that is why we will never see complete automation of trains.
The general lack of Safety First Culture and its replacedmenet with a Do the Minimum to Get By culture were, in my opinion, the reasons for Harding -and the Supervisors' failure to act on their responsibilities.
I am willing to learn from people pointing out my mistakes. If criminal neglegence under Canadian Law invoilves INTENT, then the prosicution's charge was wrong to begin with. The three should have been charged with just breaking the law, since clearly there was no intent. That was the mistake and the Jury was correct under the circumstance. In the USA, criminal neglegence does not involve intent.
cx500First of all, the charge was criminal negligence, not an infraction of rule 112.
Yes, I think that is the relevant point. Harding was charged with criminal negligence and that requires more criteria than just failing to abide by Rule 112. Criminal negligence requires things like intention, and knowingly exposing another person to risk. This was the complex criteria that seemed to be confusing the jury and prompted them to ask for a legal dictionary that would clarify the terms of criminal negligence. In the end, the jury failed to find those motives that elevate just negligence to criminal negligence.
However, the part I have mentioned above about Harding knowing the risk of leaving no air compressor running and letting his supervisor take responsibility without telling his supervisor about that risk, would I think, get right into the definition of criminal negligence. Certainly that would be knowingly exposing other persons to risk.
Dave Klepper: I think the judge knows a lot more about the law than the average person. First of all, the charge was criminal negligence, not an infraction of rule 112. Secondly, I think you will find that rule 112 is more properly called a regulation, promulgated by a government body rather than directly by parliament. As such it is still subject to enforcement, but mostly by the body that promulgated the regulation.
Folks might find this story of interest and some relevance in this regard. Something like 30 years ago a motorcyclist was charged with dangerous driving, travelling something like 150mph on a freeway with a speed limit of 60mph. The constable neglected to add in a charge of speeding. The driver raced semi-professionally, the highway was empty (7am Sunday morning), straight, and the pavement was in excellent condition. The judge had to agree that under those very specific circumstances it was in reality not particularly dangerous and the verdict was Not Guilty. In that case both possible charges were part of the same Act so he could not be recharged with simply speeding.
Perhaps Transport Canada might be able to pursue Rule 112 against the railway but since the company responsible is no longer active there will be little point.
daveklepperAdn Balt, are you implying that I should not judge events where I am living now from my American perspective? The USA was founded on certain ideals. I think I will always want to use them as a guide in judging people's actions. And mistakes.
The USA was founded on certain ideals. I think I will always want to use them as a guide in judging people's actions. And mistakes.
The Judge said, by what he said, that you are wrong and his word it final and the verdict that the jury returned ends the bickering.
Never too old to have a happy childhood!
And when I was face-to-face with (Her Majesty) Queen Elizabeth at the door of the sound control room opening night of the Charlottetown, P. E. I. Fathers of the Confederation Theatre, I'm certain that (Her Majesty) the Queen thought I was a Canadian citizen. Probably, because of the show "En Batau" (Sp?), she thougoht I was French Canadian, Quebecois.
Adn Balt, are you implying that I should not judge events where I am living now from my American perspective?
daveklepperThe judge did not empower the jury clearly and accurately.
The Judge was familiar with the requirements of Canadian Law. You are not. Attempting to imply US judicial practices on the the laws of another country is a mistake of the highest order.
I agree. But:
This would not be the first time in the history of democratic countries with generally fair law enforcement that a jury did not render an accurate decision. And I would postulate that the fault would be laid at the hands of the judge, not the jury.
And I am happy that Harding will not spend additional time in jail. There certainly were extenuating circumstances, the general lack of a safety culture and the minimun effort to get by that resulted from it.
But the jury has spoken. Whether you agree with their decision or not - it is still their decision.
The opinions expressed here represent my own and not those of my employer, any other railroad, company, or person.
Every engineer that I knew regarded the safety of his train as his responsibility. Harding clearly acted as a person who saw that as the responsibility of his suprevisors and not specifically his. Whether Harding alone is at fault for this, for not behaving like a professional locmotive engineer, or it is largely the fault of the lack of safety culture at MM&A was something the court could have considered if they had understood clearly that:
Yes, Harding Did Break the Law. Rule 112 is a rule by the Canadian Government and not a rule by railroad companies. It is as much a Law as a speed limit sign on a highway or a red light at a highway intersection.
The judge did not empower the jury clearly and accurately.
Some thoughts:
Even if Harding had never experienced what happens if the independent brakes are released during his prior securements, I think he had to realize that losing a large portion of the securement by the air brakes releasing would have at least stood an excellent chance of allowing the train to roll away. I don’t see why he would fail to realize that just because he was using insufficient securement in the first place, as his typical practice.
Actually, it seems likely that Harding did not even know that his routine securement was insufficient. However, realizing the potential loss of a large portion of that insufficient securement would be an obvious problem to Harding or any experienced engineer. In other words, an engineer might not know how many handbrakes to set, but he would certainly know that releasing say half of the ones set would be a problem.
Regarding what I have said about this conversation between Harding and RTC, it is only the actions of Harding that perplex me. I agree that RTC’s attitude to “wait until morning” is completely understandable. I think he considered the securement to be Harding’s responsibility and did not know about the possibility of air brakes leaking off. So he saw no reason why they could not wait until morning to get back to the train.
However, upon being told by RTC that no engines were running on the train, I cannot understand why Harding did not inform RTC that one engine must be running to assure the train stays put. Harding had to know the risk, and if RTC was not concerned, Harding had to know that the reason that RTC was not concerned was that RTC did not know the risk. This makes it appear as though Harding washed his hands of the entire responsibility by handing it over to his supervisor and that Harding knew that doing so required that he did not make his supervisor aware of the danger.
All of this assumes that Harding actually did realize that the brakes that were set would be insufficient to hold the train if the independent brakes bled off.
If we go back to the concept that securing the train as he had was a standard practice on the railroad, then it would appear that he had never before experienced what happens if the independent brakes are released in that situation. His failure to release the independent for a roll test (even without a push/pull) reinforces that.
We don't know if he realized that only one, or two, axles on each locomotive were actually secured by the hand brake. I haven't read the transcript - did Harding tell the RTC exactly how he secured the train? A follow-on question to that is, did the RTC know how the train was actually secured, or did he assume that it was secured IAW established procedures?
If the RTC assumed that the train was secured properly, the "wait until morning" attitude is completely understandable. As far as he was concerned, it didn't matter if a locomotive was running.
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...
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