Passenger Trains > Amtrak #91 - CSXT Liability - Is There a Lawyer in the House?

My understanding of Amtrak's contracts with the freight carriers is that Amtrak assumes all liability
for any and all risks / damages including those caused by negligence of the carriers.

Is this understanding correct?

If it is, has this language ever been tested in court in a similar context where the carrier's actions
directly caused the crash?

Please, no lectures about "don't speculate, wait until the facts come out, lawyers suck" etc. There are
other threads for that nonsense.

Robert Pierce
Sugar Land, TX
SWRails.com

Are you saying legally it was essentially Amtrak's fault/they'll be liable?



Edited 1 time(s). Last edit at 02/06/18 14:39 by exhaustED.

TexBob Wrote:
-------------------------------------------------------
> My understanding of Amtrak's contracts with the
> freight carriers is that Amtrak assumes all
> liability
> for any and all risks / damages including those
> caused by negligence of the carriers.
>
> Is this understanding correct?

That's how they get to be on a Class 1 railroad's track.

TAW

exhaustED Wrote:
-------------------------------------------------------
> Are you saying legally it was essentially Amtrak's
> fault/they'll be liable?

I don't think so. Read his post again. I don't get your idea at all out of what he wrote.
He's really only asking a question.

sums007 Wrote:
-------------------------------------------------------
> exhaustED Wrote:
> --------------------------------------------------
> -----
> > Are you saying legally it was essentially
> Amtrak's
> > fault/they'll be liable?
>
> I don't think so. Read his post again. I don't
> get your idea at all out of what he wrote.
> He's really only asking a question.

I know he's asking a question. So am I. I've re-read the post and my question still stands.

exhaustED Wrote:
-------------------------------------------------------
> Are you saying legally it was essentially Amtrak's
> fault/they'll be liable?

Fault and liability are separate legal matters. Most of the time they go hand in hand.

If my understanding of the contract in place between Amtrak and the carriers is correct,
the crash can be caused by CSXT's actions, but Amtrak has agreed to hold harmless / indemnify
the carrier.

Robert Pierce
Sugar Land, TX
SWRails.com

TexBob Wrote:
-------------------------------------------------------

> Fault and liability are separate legal matters.
> Most of the time they go hand in hand.
>
> If my understanding of the contract in place
> between Amtrak and the carriers is correct,
> the crash can be caused by CSXT's actions, but
> Amtrak has agreed to hold harmless / indemnify
> the carrier.

Yes I thought that was what you were saying. Excuse the legal speak but 'that's nuts'! So basically the taxpayer foots the bill?!



Edited 2 time(s). Last edit at 02/06/18 15:27 by exhaustED.

That might be true for Amtrak, but I'm pretty sure the widows don't have any kind of an indemnity clause. They will sue to the moon and win. No matter how much they get, it's still nothing. Two men, two good men, are dead.

Liability cap per incident for Amtrak

Slide 13 Amtrak presentation

https://www.fhwa.dot.gov/Planning/freight_planning/talking_freight/september

Amtrak has a unique contractual
no-fault liability arrangement
with its host railroads, an
excellent safety record, and a
decades-long history of standing
behind its liability commitments
to hosts. This combination
provides the lowest-cost liability
arrangement.

TexBob Wrote:
-------------------------------------------------------
> My understanding of Amtrak's contracts with the
> freight carriers is that Amtrak assumes all
> liability
> for any and all risks / damages including those
> caused by negligence of the carriers.
>
> Is this understanding correct?
>
> If it is, has this language ever been tested in
> court in a similar context where the carrier's
> actions
> directly caused the crash?
>
> Please, no lectures about "don't speculate, wait
> until the facts come out, lawyers suck" etc. There
> are
> other threads for that nonsense.

As with any common carrier, Amtrak assumes liability for the passenger regardless of who is a fault. Anyone remember Bayou Canot in 1993? Both Amtrak and CSX were sued, with millions paid out to the injured and family members of the deceased. This despite the fact neither Amtrak or CSX were at fault. Gross negligence on the part of the barge company and it's employees caused the crash.

Kramer Wrote:
-------------------------------------------------------
> That might be true for Amtrak, but I'm pretty sure
> the widows don't have any kind of an indemnity
> clause. They will sue to the moon and win. No
> matter how much they get, it's still nothing. Two
> men, two good men, are dead.

Well, being that would be a civil matter, yes as a matter of fact that is true. But that has nothing to do with the original question, does it?

The matter of resolving the party or parties having liability for the crash of Amtrak #91 will be resolved in the courts; not by self proclaimed "experts" on Trainorders.
ALLEN

.



Edited 2 time(s). Last edit at 04/07/18 13:13 by darkcloud.

to hold harmless is one thing, but for amtrak to indemnify csx, i think that is a load of donkey poop. pay your own way bub... dave, out.

airlines have the same type of agreement with their regional carriers. its called indemnify, the regional carrier assumes all liabilites and expenses of the mainline carrier.

darkcloud Wrote:
-------------------------------------------------------

> Perhaps it is time to challenge that type of
> agreement. Similar have at times been nullified
> by the courts, based on the degree of gross
> negligence or worse.

It's been that way since AMTK started, but agree, the were you not there argument is pretty weak.


>
> But more importantly, perhaps it is time for track
> infrastructure to be bought out by govt
> (nationalized) or separated from the operating
> companies and regulated more like a utility (sort
> of like the AT&T breakup.) Convert the tracks to
> open access like the highways/tollways are, level
> the transportation playing field. A good argument
> can be made that current quasi-monopolistic
> railroad system in the US no longer best serves
> the public interest, not just passenger but also
> on the freight side.


Thanks. You are one of the very few who agrees with me. If not government ownership, separate railroads at the railhead as the EU open access directive requires, then develop a fair compensation for the tolls charged to the Train Operating Companies. Access must be non-discriminatory. The track owner is free to run trains, but under the same conditions as everyone else. Rail service would be so much better and serve the nation better. There is too much going by truck that should be on rail because of the current arrangement.

TAW

I'm not a lawyer and I don't even play one on TV, however I seem to recall that the issue of "liability" was answered long ago in English Law. When a person buys a travel ticket from a firm, that person has bought a promise from that firm that he will arrive safely. If he does not, he can sue the ticket seller for breach of contract even if the accident was not caused by the seller. Then in turn the ticket seller has the right to sue the transportation company that caused the accident for reimbursement. Does anyone know if I am correct about this?

> As with any common carrier, Amtrak assumes
> liability for the passenger regardless of who is a
> fault. Anyone remember Bayou Canot in 1993? Both
> Amtrak and CSX were sued, with millions paid out
> to the injured and family members of the deceased.
> This despite the fact neither Amtrak or CSX were
> at fault. Gross negligence on the part of the
> barge company and it's employees caused the crash.

Amtrak and the host railroad agree not to sue each other. But a third part has no such agreement, does it? Didn't Amtrak sue the barge company to recover damages?

I don't know if I ever read an Amtrak agreement but I have read those for trackage rights and detour agreements. Essentially in these agreements the RR exercising trackage rights, or a detouring RR, eats it all, even for a track defect, UNLESS the owning RR has been notified of the defect ahead of time. I would be surprised if such agreements were not in place for Amtrak.



Edited 1 time(s). Last edit at 02/06/18 18:18 by Nassau.

darkcloud Wrote:

> But more importantly, perhaps it is time for track
> infrastructure to be bought out by govt
> (nationalized) or separated from the operating
> companies and regulated more like a utility (sort
> of like the AT&T breakup.) Convert the tracks to
> open access like the highways/tollways are, level
> the transportation playing field. A good argument
> can be made that current quasi-monopolistic
> railroad system in the US no longer best serves
> the public interest, not just passenger but also
> on the freight side.

This is a complex subject, with a lot of crosscurrents. I will agree that the current system is basically schizophrenic. As it stands, railroads must bear almost all of the maintenance expenses for their rights-of-way AND pay property taxes, as well, while their trucking competitors drive on a socialized highway system with much of the maintenance costs actually paid by taxes levied on someone else other than the trucking companies using the highways. Simply put, the private railroad system must maintain, expand, or abandon its infrastructure based on business economics, while the highways are maintained and expanded based on political expediency with what has become almost no analysis of cost vs. benefit.

One can argue that rail passenger transport has been also basically socialized, but most of the system (e.g., Amtrak) is so meagerly publicly funded that it has no possible way to compete with other modes of passenger transportation that enjoy almost unlimited access to feed at the public trough.

Throw into the mix the regulation vs. deregulation argument that still rages. Back when, the railroads and the regulators essentially had a Faustian bargain. That bargain was that the railroad would be guaranteed an adequate return on investment in return for subjugating themselves to the requirement to providing both passenger and freight service necessary for "public necessity and convenience." In many places, railroads enjoyed a semi-monopoly status and regulation was designed, in part, to prevent those railroads from "gouging" their customers because of it. In that regulatory environment, regulation served to make it such that more profitable routes could "subsidize" less profitable ones and (generally) more profitable freight service could subsidize less profitable (or even unprofitable) passenger service. That whole scheme fell apart when competing modes of transportation were not only free of a great deal of that regulation, but also because they were also politically powerful enough to acquire massive direct and indirect taxpayer subsidies. The creation of Amtrak, including some of the legal arrangements regarding liability that are the main subject of this thread, were a first step toward "deregulation" where the railroads' money-losing passenger operations were transferred to the government, eliminating the railroads need to use freight revenues to subsidize passenger operations. Even that was not enough to prevent several of the major railroads from heading into bankruptcy, so "deregulation" was extended to essentially allow the railroads to ignore "public necessity and convenience" and abandon lines or services that they could not operate profitably. That did save the railroad industry in the US from what might have been near collapse, but it also led to the mergers that essentially created today's "mega" railroads that, in many cases, no longer really compete against each other. Much of the stock value in today's large railroads now lies in the value of a "franchise"--the railroad's routes and rights-of-way that no longer can be duplicated and often are non-competitive with each other. In business lexicon, that "franchise" is an "intangible asset." If the government were to acquire the rights-of-way by eminent domain--"nationalizing" the railroad's rights-of-way, it likely would only have pay for the tangible value of the rights-of-way under eminent domain, leaving the railroad and its shareholders "holding the bag" for the big difference between the tangible value of the real estate and the much larger intangible value of the "franchise" of an exclusive railroad-owned right-of-way. Investors from Ma and Pa types (like me--I own some railroad stocks) to the likes of Warren Buffett would not like what that would do to the value of their railroad stock holdings.

Now, were the railroads' rights-of-way effectively socialized, with the costs of maintenance borne primarily by the taxpayers, the playing field would be leveled considerably with the competing trucking and airline industries. Even passenger rail would come much closer to competing with automobiles and airlines. Rail traffic would expand greatly, but there is no guarantee that today's railroad corporations would be the prime benefactor from an open access publicly-owned railroad right-of-way infrastructure. And, such a plan would also effectively end the highway and air travel near monopoly lock on a sizable portion of the traffic that they carry. Soooo, any attempt at nationalizing the railroad rights-of-way into a public infrastructure would likely run into a buzz saw of political opposition from the highway lobby, the trucking lobby, the airline lobby, AND the existing major railroad corporations, no matter if the result was a more coherent national transportation policy and a more overall efficient transportation system. That would be a case where players with seemingly competing and incompatible interests would temporarily unite to defeat what could be construed by them as a common foe.



Edited 3 time(s). Last edit at 02/06/18 18:29 by WW.