Posts Tagged ‘legal action’

Appeals Court Reverses Course in SEDA-COG Dispute

July 3, 2018

The fight over a Pennsylvania short-line railroad took another turn last week when a Pennsylvania state appeals court reversed its earlier order and instructed a lower court in Clinton County to reconsider a short line service contract approved by the SEDA-COG Joint Rail Authority Board of Directors.

The legal action stemmed from the Susquehanna Union Railroad, also known as the North Shore Railroad, being turned down by SEDA-COG for a seven-year operating contract. Instead, the contract went to Carload Express of Oakmont, Pennsylvania.

Susquehanna Union has operated the lines in question since they were purchased by the state from Conrail in 1984.

In awarding the operating contract to Carload Express, SEDA-COG said it used a scoring system that showed Carload Express scored one point higher than Susquehanna Union.

The line is made up of five branches and 200 miles of track in central Pennsylvania.

The 2015 decision has displeased both railroads with each filing lawsuits.

One issue is that state law requires nine of the board’s 16 members to approve the contract, but six members abstained during the voting.

In sending the case back the appeals court said the lower court “failed to resolve all issues” and additional pertinent information has since been disclosed.

The latter includes a news report saying that in a sworn deposition, a SEDA-COG board member said he had given no points to the North Shore when submitting his tally in 2015, but had planned to give the railroad 60 out of a possible 100 points.

That would have been enough to put Susquehanna Union into a tie with Carload Express.

NS Lawsuit is About Playing for Rules, Not Money

April 14, 2018

Norfolk Southern fired a warning shot last week that it wanted all of its operating employees to hear.

It filed a lawsuit against two crew members who were operating a train in Georgetown, Kentucky, last March that collided with another NS train.

The suit, filed in a federal district court, alleges that the engineer and conductor were negligent in their operation of their train.

When I read about the lawsuit I was reminded of something I learned in an introduction of the legal system class during my undergraduate days. “You can’t get blood from a turnip,” said professor Charles Hollister.

As any trial lawyer knows, winning a judgment is one thing, collecting it can be quite another.

The lawyers in the NS legal department know this. Even if they prevail in the suit against the two crew members, NS lawyers know the company will see very little, if any, of the judgment.

Class 1 railroad operating employees may be paid well, but they don’t have the resources to be able to cover the cost of the damage that NS sustained in that head-on crash.

The defendant crew members might be able to escape the judgment by seeking bankruptcy protection.

NS is not seeking to win money even if that is the ostensible purpose of the suit. Rather, it is playing for rules.

Railroad managers more often than not believe the cause of a major incident that causes property damage, injuries or fatalities is the “fault” of one or more railroad operating employees.

Employees, their unions and even some regulators take a broader view of the cause of incidents.

They look at working conditions, conflicting directives of management, and organizational deficiencies as also playing a role in causation.

A report of the NS lawsuit by Trains magazine indicated that the crew that was sued by NS ran a stop signal.

The magazine reported an unnamed source with railroad operating experience as saying that it used to be that running through stop indication resulted in a 30-day suspension but now it leads to automatic termination.

The fired crew members through their union have a right to appeal that through an arbitration process. Sometimes employees get their jobs back, depending on the facts of the case.

A friend who worked as a Class 1 locomotive engineer says it is easy to get fired on the railroad but hard to stay fired. It is that reality that NS is seeking to change or at least title the scales more to management’s advantage.

NS might not even expect this case to go to trial. Perhaps it will offer to drop the lawsuit if the crew members agree not to go to arbitration and/or agree not to work for NS again.

A union official quoted by Trains correctly expressed doubt as to whether the railroad could win the case. Lawsuits such as this are uncommon and few, if any, railroad employees could afford the judgment NS is seeking.

But NS sees something of greater value at stake. The union official interviewed by Trains said that the lawsuit sets a precedent. Yes, it does, and NS wants its employees to know that.

NS is not necessarily going to sue every employee who is involved in a collision or derailment.

It probably chose this case because it sees the facts as in its favor because it has hard evidence to show a clear violation of company rules.

Ensuring that operating crews follow the rules all of the time regardless of circumstances is what NS is seeking to achieve, even if it means filing a suit seeking money it knows it won’t ever collect.

Amtrak Pays Legal Claims of the Victims of its Accidents Even Though One of its Host Railroad May be at Fault

February 13, 2018

Based on information released by the National Transportation Safety Board, the cause of the collision in South Carolina that left two Amtrak crew members dead seems pretty straightforward.

A switch had been left open, thus routing the southbound Silver Star into a head-on crash with a parked CSX auto rack train.

That might seem to be the fault of a CSX employee although it’s possible the switch could have been tampered with by someone else.

The NTSB is expected to release its report on the cause of the accident more than year from now.

Whatever the cause of the accident, Amtrak likely will wind up paying the money that will go to those filing lawsuits in the wake of the crash.

It won’t matter if CSX is found to have sole responsibility for the accident, Amtrak likely will pay the claims.

The accident on Feb. 4 in Cayce, South Carolina, has trained the spotlight again on a little-known fact about Amtrak’s relationships with its host railroads.

Agreements between the passenger carrier and its host railroads leave Amtrak responsible for paying the legal claims that stem from accidents.

The exact language of those contracts has been kept secret at the insistence of the railroads and Amtrak, say lawyers who have been involved in legal proceedings involving Amtrak and a host railroad.

Amtrak has track use contracts with 30 railroads and all of them are “no fault” agreements.

As explained by an Amtrak executive in a September 2017 seminar hosted by the Federal Highway Administration, that means Amtrak takes full responsibility for its property and passengers and the injuries of anyone hit by a train.

A host railroad is only responsible for its property and employees.

Amtrak manager Jim Blair said at the seminar that this was “a good way for Amtrak and the host partners to work together to get things resolved quickly and not fight over issues of responsibility.”

It doesn’t matter if the host railroad was negligent in causing the crash.

It wasn’t always that way, but things changed after a 1987 crash on the Northeast Corridor at Chase, Maryland, when Amtrak’s New York-bound Colonial struck a Conrail light power move that had run a stop signal.

Sixteen died in the crash. During the investigation, authorities learned that the Conrail engineer was under the influence of marijuana at the time.

Although Conrail paid damages from the resulting lawsuits, the railroad industry began pushing for Amtrak to assume liability for damage claims resulting from accidents, even if the host railroad was at fault for the cause of the accident.

A former member of the Amtrak board of directors said that following the Chase crash, Amtrak faced “a lot of threats from the other railroads.”

The former board member spoke with the Associated Press on condition of anonymity because the company’s internal legal discussions are supposed to remain confidential and he doesn’t want to harm his own business relationships by airing a contentious issue.

The Amtrak board member said management gave in to the railroad industry demands because it felt it couldn’t afford to pick a fight.

“The law says that Amtrak is guaranteed access, but it’s up to the goodwill of the railroad as to whether they’ll put you ahead or behind a long freight train,” he said.

The practice of Amtrak paying damages for accidents involving its trains was revealed in a 2004 New York Times series on railroad grade crossing safety.

Following that disclosure, the U.S. Surface Transportation Board ruled that a railroad “cannot be indemnified for its own gross negligence, recklessness, willful or wanton misconduct,” said a 2010 letter by then-Surface Transportation Board chairman Dan Elliott to members of Congress.

That ruling gives Amtrak grounds to pursue gross negligence claims against freight railroads. However, Amtrak has declined to do so.

“If Amtrak felt that if they didn’t want to pay, they’d have to litigate it,” said Elliott, now an attorney at the law firm of Conner & Winters.

The Associated Press reported in the wake of the Cayce crash that it was unable to find any case in which Amtrak pursued a claim against a freight railroad since the Chase incident.

AP said it asked Amtrak, CSX and the Association of American Railroads to identify any example within the last decade of a railroad contributing to a settlement or judgment in a passenger rail accident that occurred on its track. However, none would provide such an example.

Robert L. Potrroff is a member of a Kansas law firm that specializes in railroad accident litigation, told the AP that even in a case in which establishing gross negligence by a freight railroad is possible he has never seen any indication that the railroad and Amtrak are at odds.

“You’ll frequently see Amtrak hire the same lawyers the freight railroads use,” he said.

Another attorney, Ron Goldman, who has represented passenger rail accident victims, said he has long been curious whether it was Amtrak or freight railroads that ended up paying for settlements and judgments.

“The question of how they share that liability is cloaked in secrecy,” he said. “The money is coming from Amtrak when our clients get the check.”

Pottroff said he has long thought that Amtrak should fight its contract railroads on liability matters because it would make safety a larger financial consideration for them. He also said there is a fairness issue at stake.

Following the Chase crash, a federal judge ruled that forcing Amtrak to take financial responsibility for “reckless, wanton, willful, or grossly negligent acts by Conrail” was contrary to good public policy.

Pontroff is representing clients who have sued Amtrak and CSX following last week’s South Carolina crash, but doesn’t expect CSX to pay any settlements or judgments.

“Amtrak has a beautiful defense — the freight railroad is in control of all [of] the infrastructure,” he said. “[But] Amtrak always pays.”

The railroad industry contends that it has ample incentive to keep tracks safe for employees, customers and investors.

“Our goal remains zero accidents,” said CSX spokesman Bryan Tucker in a statement to the Associated Press.