Welcome to Transportation Law Today

Managed by Paul J. Loftus, a partner at Dinsmore & Shohl LLP, Transportation Law Today provides professionals in the rail, transit, inland maritime, and trucking industries with current news and analysis of laws, rulings, and regulatory policies.

Tuesday, September 27, 2011

U.S. House Holds Hearing on Aging Inland Waterways Systems

On September 21, the U.S. House Subcommittee on Water Resources and Environment held a hearing on the economic importance of the inland waterways system, and the critical challenges posed by aging infrastructure.

A press release from the Subcommittee attached here, explains both the economic benefit of water-borne commerce, but also the potential hazard to continued commerce posed by aging infrastructure, including locks that have been in service for decades.

In addition to Subcommittee Chair Bob Gibbs (R-OH), who called for addressing infrastructure needs to keep "American farms and businesses competitive and growing American jobs," other witnesses included Larry Bray of the University of Tennessee's Center for Transportation Research, Mike Tooehy, President of the Waterways Council, Inc., and Steve Ebke of the National Corn Growers Association.

A link to written testimony is attached here.

Friday, September 23, 2011

Court Orders Treasure Hunters to Return Coins & Artifacts to Kingdom of Spain

It's not everyday you get a published opinion from a Federal Appellate Court that recounts intrigue and lost treasure from the Napoleonic wars at the turn of the 19th Century. It's also not everyday the prevailing litigant is the Kingdom of Spain.

Viewers of cable television may recall a series, "Treasure Hunters" showing the for-profit Odyssey Marine Exploration team searching for sunken treasure. If I recall, the series showed thousands of coins recovered from a wreck and held in an undisclosed location, pending litigation by the Spanish Government. Well now the other doubloon drops as it were...

The U.S. Court of Appeals for the 11th Circuit held this week that treasure-hunters Odyssey Marine Exploration, Inc., must return the res , or property recovered from the a wreck site near Gibraltar. The Opinion is attached here. The Court found that the ship was the Nuestra Senora de las Mercedes, and that the ship was a Spanish Naval vessel sunk by British Warships in 1804 as it sailed for Spain loaded with treasure.

The Court's opinion is not only interesting for its recitation of the historical context of the voyage and loss of the Mercedes (see page 22 and following), it is also an interesting legal ruling. In summary, the Court ruled that a salvor, or finder of treasure, cannot have a U.S. Court arrest the property of a foreign nation. The Court held that it had "constructive possession" of the shipwreck because part of the wreck had been deposited by Odyssey with the District Court. Ultimately, the Court ordered the return of nearly 600,000 coins and other artifacts to Spain, over which it had "constructive possession" though it had no jurisdiction over the property.

The statue construed was the Federal Sovereign Immunities Act (FSIA), 28 U.S.C. 1602-1611

Thursday, September 15, 2011

DOT Secretary Pledges Support for Port Projects

John D. Boyd reports in yesterday's Journal of Commerce, a pledge of support by USDOT Secretary Ray Lahood for U.S. port projects in advance of the 2014 Panama Canal improvements.

Wednesday, September 14, 2011

NTSB Cites Trucker Cell Phone Use in Call for Hand-Held Ban

The National Transportation Safety Board (NTSB), during a meeting to consider the probable cause of a 2010 tractor-trailer collision in Kentucky which claimed 11 lives,recommended that commercial truck drivers be banned from using mobile phones, except for emergencies.

On March 26, 2010, a tractor-trailer crossed the median of I-65 near Munfordville, KY, and collided with a 15 passenger van carrying 12 occupants, including 2 small children and an infant. The truck driver and 10 of the 12 van passengers were killed. NTSB investigators noted the driver had used his mobile phone 69 times while driving in the 24 hour period prior to the accident, including four calls made by the driver in minutes before the crash.

A mobile device ban has already by implemented by rail regulators following a 2008 commuter train collision in California, and the NTSB has made similar recommendations to maritime operators following the Duck Boat - Barge Collision on the Delaware River in Philadelphia.

Tuesday, September 13, 2011

Closed Ohio River Bridge Snarls Traffic

The bridge carrying Interstate 64 over the Ohio River between Louisville, KY and Southern Indiana was closed for emergency structural repairs on Friday. This Report, from CBS news, indicates the closure may last up to six months.

To alleviate congestion, an excursion boat operator has announced shuttle service from Jeffersonville, IN to Louisville's Fourth St. Wharf for $1 each way. A report from WLKY.com, explains the service.

A riverboat carrying 300 passengers per trip maximum doesn't make much of a dent replacing a closed bridge that carried 80,000 vehicles per day, but hats off to the Spirit of Jefferson operators for quickly providing an outlet and assistance to commuters.

Thursday, September 8, 2011

Sixth Circuit Denies Medical Monitoring and Fear of Cancer Claims

Looks like it is Circuit Court week here at TLT.

Today, the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, upheld the grant of summary judgment to CSX Transportation, Inc. in an action brought by local residents following the October 2007 derailment and fire near Painesville, Ohio. Liability was not an issue. Rather the questions before the Court were causation and injury, and under Federal Rule of Civil Procedure 56, whether there was sufficient evidence to create a genuine issue of material fact for a jury to consider.

The residents suing the railroad did not have current injuries, but sued for medical monitoring expenses and an increased risk of future cancer. After summary judgment was granted by the District Court, the Sixth Circuit affirmed, reasoning that expert testimony supporting plaintiffs' claims of increased risk of cancer was speculative, and bordered on "legal insignificance."

A copy of the Opinion is attached here.

Wednesday, September 7, 2011

Is Competition in Passenger Rail Coming?

The Federal Railroad Administration (FRA) published a proposed rule today establishing a pilot program under which railroads that own the infrastructure over which Amtrak operates may bid to provide passenger service. The routes open for bid are "under-performing" Amtrak routes. The proposed rule is mandated by the Passenger Rail Investment and Improvement Act of 2008.

The pilot program proposed in the rule limits the number of intercity routes that may be awarded to carriers other than Amtrak to no more than two existing Amtrak routes. A carrier winning a bid to operate service previously provided by Amtrak, would be entitled an operating subsidy up to the level Amtrak had received for the route, conditioned upon meeting certain performance standards. Amtrak would be required to provide a winning bidder access to its reservation system, stations, and "facilities directly related to operations." The bid process also allows Amtrak to submit its own bid to retain the service over the route that another carrier petitions to operate.

Comments on the proposed rule are to be submitted to the FRA by November 7, 2011.

It remains to be seen if there are any takers for operating passenger service on routes which have been "under-performing" for Amtrak, even with equivalent operating subsidies.

Tuesday, September 6, 2011

Seventh Circuit Vacates Electronic Recording Rule for Trucks

The U.S. Court of Appeals for the Seventh Circuit, based in Chicago, vacated the final rule of the Federal Motor Carrier Safety Adminstration (FMCSA) approving the use of electronic on board recorders (EOBRs)on some trucks. In an Opinion issued recently the federal appellate Court ruled that FMCSA's rule was "arbitrary and capricious" because the Agency failed to consider a regulatory requirement that the use of monitoring devices for hours of service violations not be "used to harass vehicle operators."

The Seventh Circuit's action represents the latest challenge to FMCSA revisions to hours of service (HOS) regulations, which have been successfully challenged in the past. In 2003 the U.S. Court of Appeals for the D.C. Circuit also ruled the Agency's HOS rules were arbitary for its failure to consider the impact of the rules on the health of drivers. Public Citizen v. FMSCA, 374 F.3d 1209 (D.C. Cir. 2004). Again, in 2007 the D.C. Circuit struck down the Agency's latest attempt to revise the HOS regulations for not allowing meaningful comment on driver-fatigue model used nor explaining why the model was adoped. OOIDA v. FMSCA, 494 F.3d 188 (D.C. Cir. 2007).

This most recent challenge to the HOS rules was brought by the Owner-Operator Independent Drivers Association, Inc. (OOIDA).