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.

Thursday, November 15, 2012

BP Pleads Guilty to Criminal Charges - to Pay in Excess of $4 Billion

The Department of Justice announced today the entry of a guilty plea by BP Exploration and Production, Inc., to criminal charges of felony manslaughter, environmental crimes, and obstruction of Congress. The DOJ press release is attached here. The agreement calls for BP to pay in excess of $4 billion dollars in fines and penalties. The penalty is subject to court approval, and is the largest criminal penalty in U.S. History. The Guilty Plea filed with the federal court in Louisiana is attached here. Three individual BP employees have been indicated, including the 2 highest ranking supervisors aboard the Deepwater Horizon, and a BP executive who served as Deputy Incident Commander after the incident, who is charged with obstruction of Congress and making false statements to law enforcement officials.

Monday, November 12, 2012

U.S. Projected to Be Largest Global Oil Producer

The International Energy Agency (IEA), in its World Energy Outlook 2012 (Executive Summary Attached), has forecast that the U.S. will overtake Saudi Arabia as the world's largest oil producer by 2020, and to become a net oil exporter by 2030. Noting the U.S. currently imports about 20% of its total energy needs, the IEA notes the projected energy self-sufficiency of the U.S. represents a "dramatic reversal of the trend seen in most energy importing countries." Regarding natural gas, the IEA notes an interesting situation where abundant gas production, and hence low prices, reduces coal use in the U.S., but frees up coal for export to Europe where coal is a cheaper alternative to natural gas. For U.S. consumption, "low prices and abudant supply see gas overtake oil around 2030 to become the largest fuel in the energy mix." In terms of the forecast for global coal use, steady demand in China and India is forecast, with India overtaking the U.S. as the second-largest coal user by 2025, with India also becoming the larger net importer of coal by 2020. The overall picture for the U.S. certainly is positive. Domestic coal usage is likely to decline with the price pressure from natural gas, however, both the trends in U.S. production and overseas markets indicates a strong role for the shipping industry domestically and for export of coal, oil, and gas.

Friday, October 5, 2012

Failure to Fund Water Infrastructure Cited by National Research Council

The National Research Council's latest report on water infrastructure funding finds the U.S. Army Corps of Engineers faces an "unsustainable situation" in maintaining national water projects at acceptable levels of performance. A press release announcing the report is attached here, and a summary of the larger report is attached here. The full report can be obtained in pre-publication format from the NRC's website. The NRC report states the familiar rallying cry that decades-old locks and dams threaten the inland waterway system, and the economic activity the inland waterways sustain. Somewhat distressing is the foreboding, but realistic, statement that despite calls for funding and repairs, gradual deterioration will effectively require discommissioning of locks and dams: "Parts of the system could be decomissioned and divested, but it is more likely that the lock and dam network will be modified by gradual deterioration rather than any planned decomissioning."

Tuesday, September 25, 2012

5th Circuit Reverses Self - Army Corps not Liable for Katrina Flood Damage

The U.S. Court of Apppeals for the Fifth Circuit in New Orleans reversed its prior ruling that the U.S. Army Corps of Engineers was liable for Katrina-related flood damage. In an opinion filed yesterday, the same three judge panel that had previously held the Corps liable for some damages, reversed itself and found immunity for the Corps under the discretionary function exception. Under this doctrine, suits that are based on a government agency's, or employee's, performance, or failure to perform, a discretionary function, are barred. The latest opinion is attached here.

Monday, September 17, 2012

Engineer Group's "Failure to Act" Report Addresses Airport, Inland Waterways, and Port Infrastructure

The American Society of Civil Engineers (ASCE) published its latest "Failure to Act" report addressing U.S. infrastructure. The lastest report is "The Economic Impact of Current Investment Trends in Airports, Inland Waterways, and Marine Ports." Needless to say from the title of the paper, the ASCE advocates investment in infrastructure projects. Among the interesting contents of the report are various graphs and charts, including graphs of costs (by commodity) from the use of undersized vessels in shallow harbors, lost trade due to gaps in inland waterway and port investment, and the top 10 sectors to be affected by decline in waterborne trade in 2020. This latest report is ASCE's third in the "Failure to Act" series, having previously published reports on Surface Transportation and Water and Wastewater.

Friday, September 7, 2012

FRA to Require Railroad Risk Assessments - Data to be Excluded from Litigation

Today the Federal Railroad Administration (FRA) published a proposed rule (77 FR 55372) requiring passenger railroads to implement a System Safety Program (SSP), which requires railroads to "identify and mitigate or eliminate hazards and the resulting risks on each railroad's system." Although this rule, which is authorized by section 109 of the Rail Safety Improvement Act, 49 U.S.C. 20118 - 20119, addresses only passenger railroads, a similar rule-making is apparently in process that will cover "Class I railroads and railroads with inadequate safety performance." (77 FR 55379).

To create a SSP, which is to be developed by individual railroads and submitted to the FRA for approval, railroads must identify risk-based hazards, and then create a plan to reduce or eliminate identified risks. In order to ensure railroads conduct "a robust assessment of the hazards and resulting risks on its system," the proposed rule will protect information compiled or collected solely for the purpose of the SSP "from discovery, admission into evidence, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, and property damage." (77 FR 55379).

Today's NPRM goes into significant detail regarding the reasons for excepting SSP risk analyses data for use in civil actions, and specifically cites 23 USC sec. 409, which generally excludes grade crossing safety assessments (under certain circumstances) from use in litigation as an example (the detailed discussion begins on page 55390). Not included in the statutory prohibition of evidence is material not " solely compiled or collected" for the purpose of the SSP.

With regard to the prohibition of SSP material from litigation, the FRA expanded the RSIA mandate to exclude data and analyses from civil discovery (including FOIA) and admission as evidence, to also include "consideration for other purposes." The "for other purposes" exclusion is meant to completely exclude the risk-analyses of the railroads, including any indirect use or reference such as refreshing a witnesses recollection or reliance by an expert witnesses. The FRA explained succinctly why this extra step was taken:

"The additional language, 'or considered for other purposes,' ensures that the protected information remains out of a proceeding completely. The protections would be useless if a litigant is able to use the information in the proceeding for another purpose. To encourage railroads to perform the necessary vigorous risk analysis and to implement truly effective elimination or mitigation measures, the protections should be extended to any use in a proceeding." (pg. 55391).

The effective date of the prohibition of evidence will be 1 year after the publication of the final rule, and will also apply to forthcoming risk reduction rule applicable to Class I railroads (pg. 55392).

Friday, August 31, 2012

Senators Request GAO Review of RR Safety

On August 28, 2012 three U.S. Senators requested the Government Accountability Office (GAO) conduct a "comprehensive evaluation of the state of the country's railroad safety programs and policies."

The request was made by three Democratic Senators, Rockefeller (D-W.Va.), Durbin (D-IL), and Lautenberg (D-NJ). Prompting this requested review was the recent derailment in Ellicott City, MD, the derailment and fire following an ethanol train derailment in Ohio, and a coal train derailment and bridge collapse near Chicago in July.

The Senators specfically requested that the review address how railroads and the Federal Railroad Administration (FRA) evaluate risk factors for rail safety in the allocation of inspection and safety resources.

Thursday, August 23, 2012

Keystone Pipeline Granted Common Carrier Status - Eminent Domain For Right of Way Allowed

A state court judge in Lamar Co. TX has ruled in favor of Canadian corporation TransCanada, finding that it has eminent domain rights across farmland as a common carrier. Here is the Washington Post's story on the ruling, and here is the AP's report via the Dallas Morning New's website.

The decision was prompted by litigation by local landowners who argued TransCanada's proposed pipeline was a private venture,and not a common carrier, which can access rights of way by eminent domain.

According to the news reports, the Court's decision was conveyed to counsel via email; it is unclear if any opinion has been issued.

Wednesday, August 1, 2012

More OSHA Whistleblower News - RRs Fined - Trucking Rules Published

OSHA has announced three FRSA "whistleblower" awards to railroad employees. As explained in the OSHA press release, over $650,000 was awarded to three separate employees, with each case including a punitive damages award by the DOL.

Also in Whistleblower news, OHSA has published its Final Rule governing the handling of retaliation complaints made under the Surface Transportation Assistance Act of 1982 (STAA). The STAA, as amended, covers commercial motor vehicle safety and security. The Final Rule is attached here. Among other things, the rule provides that a violation of the whistleblower protections in the Act may be found if the protected activity was a "contributing factor" to the adverse action alleged. For the defending party, relief is to be denied if it is shown by clear and convincing evidence that it would have taken the same adverse action in absence of the protected activity. In other words, the adverse action (i.e. discipline or termination for example) was not a result of the whistleblowing, as it were. The remainder of the final rule generally brings STAA actions in line with other whistleblower statutes and procedures enforced by OSHA.

Monday, July 30, 2012

USDOT Fines Travelocity over Fee Disclosure

Last week the USDOT announced it had fined online travel-site Travelocity for violating rules on full-fare disclosure. Travelocity was fined $180,000.00.

A investigation by DOT's Aviation Enforcement Office found that potential customers booking international flights did not see all surcharges and other fees until an itinerary was selected, where the full fare was then disclosed. The rationale for the fine was the consumers may have selected certain routes on the basis of price, for which the full price was not actually disclosed, and therefore may have prevented them for selecting other options based on price.

In a somewhat related action, the same enforcement office also fined air carrier World Atlantic Airlines for failing to provide previously booked flights after charter operator Direct Air missed payments to the carrier and later ceased operations. Here is the World Atlantic announcement, which also resulted in a $180,000.00 fine.

A $180,000 fine seems very steep for a carrier that did not complete flights for which it had contracted, but had not been paid by the charter operator. I certainly have sympathy for charter passengers left high and dry when a charter operator ceases operations, which happened here, but basically the air carrier was fined $180K for requiring payment before flying, which is against DOT rules. DOT rules also prevent charter flights from being canceled less than 10 days before the scheduled departure.

Tuesday, July 17, 2012

FRA & OSHA Enter Agreement to Enforce FRSA Whistleblower Complaints

The Federal Railroad Administration (FRA) has announced an agreement with the Department of Labor's Occupational Safety & Health Administration (OSHA) to "Protect Railroad Workers from Retaliation." The FRA's press release is attached here. The agreement addresses whistle blower complaints made under the Federal Rail Safety Act (FRSA), specifically, 49 USC 20109.

The agreement, or MOA in government-speak (Memorandum of Agreement) between the agencies, is attached here.

Under the FRSA, as amended in 2007, rail workers can bring complaints of harassment and other issues to OSHA for treatment as a whistle blower complaint, under an administrative process. Various complaints by employees have resulted in monetary awards to whistle blowers, including at times punitive damages awarded by the DOL's Administrative Law Judges. It remains to be seen whether some of the more significant rewards are litigated beyond the DOL administrative process, which I predict will happen.

With regard to the FRA/OSHA agreement, the MOA essentially is an information sharing agreement under which FRA is to advise rail employees who bring complaints to them of their right to bring the complaint to OSHA. Likewise, OSHA will send the FRA complaints it receives under the FRSA for potential violations of FRA regulations. Also, OSHA is to advise FRA when it "learns of a potential violation of an FRA accident/incident reporting violation under 49 CFR part 225, or other violation of federal rail safety regulations."

Finally, FRA's enforcement staff is to be trained in "recognizing complaints of retaliation under 49 USC 20109" and to assist OSHA staff "in recognizing potential violations of Federal railroad safety regulations revealed during investigations" under the FRSA.

A likely result then from a whistle blower complaint to OSHA from a rail employee is a potential FRA citation, and fine, for a violation of FRA regulations uncovered by the employee's complaint. In other words, potentially two penalties for the same alleged conduct.

Monday, July 9, 2012

Fourth Circuit Upholds $10 Million Award to Physician Injured During Boat Demo

In an unpublished opinion released today, the U.S. Court of Appeals for the Fourth Circuit in Richmond, affirmed the judgment of the U.S. District Court/E.D. North Carolina which awarded nearly $10.4 million to a physician injured during a sea trial of a Triton 2286 center console.

The plaintiff was injured during a demo or sea-trial that took place during a small craft advisory off Beaufort, NC. An employee of Triad Marine Center was at the controls when the 22 ft boat hit a wave head on, rose into the air, and "slammed back down" causing the prospective buyer to fall and injure his ankles. At trial the injured physician claimed permanent disability from the ankle injuries and his need for continued opioid pain medication.

The District Court, at the underlying bench trial under admiralty jurisdiction, found the joint defendants (the salesman and dealer employer) negligent and awarded the Plaintiff a total verdict of $10,397,291.58, of which $3,320,995.58 was prejudgment interest. The prejudgment interest was calculated at NC's statutory interest rate for judgments of 8%, as opposed to the federal rate (which is typically applied post judgment), which is currently 0.21%.

The Court, in affirming the District Court's use of the NC-state rate for prejudgment interest upheld the lower court's discretion to look to state law "or other reasonable guideposts indicating a fair level of compensation." The Fourth Circuit noted contrary opinions from other Circuits, but affirmed the lower court's exercise of discretion in choosing the state rate. Because this opinion is not published, it does not establish precedent in the Circuit for prejudgment interest rates in maritime personal injury cases.

Ironically, the District Court will be required to utilize the statutory rate for post judgment interest, set by 28 U.S.C. 1961, which again is the minuscule rate of 0.21 %, for the period the appeal has been pending.

Tuesday, July 3, 2012

PHMSA Rules Tort Claim for Haz Mat Package Warning Preempted

The USDOT's Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a ruling, published in today's Federal Register, which preempts a common law tort action for design, manufacture and marking (including warnings) for a haz mat package.

The underlying event was the explosion of a DOT specification 39 cylinder, which exploded in January 2003 when placed in 180 deg. water. The explosion killed Kenneth Elder, whose survivors brought a product liability action against the cylinder manufacturer.

PHMSA's ruling came after the manufacturer petitioned the agency to make a preemption ruling on the underlying tort claims. The Hazardous Materials Transportation Act gives the agency authority to make such rulings, under 49 U.S.C. 5125(d).

Under the HMTA, claims relating to design, manufacture and labeling are preempted if the "non-federal requirement (i.e. a lawsuit seeking to impose an additional warning) is not "substantively the same" as federal regulation under the haz mat act. This is a somewhat different standard than preemption under the Federal Rail Safety Act (FRSA) - 49 U.S.C. 20106 - which permits more stringent state regulation covering the same subject matter as federal rail regulations if the state regulation is meant to address a local safety hazard and does not burden interstate commerce.

PHMSA determined that any "state requirement, including a State's common law" which is not substantively the same as the federal regulations on the design, manufacturing, or marking of a haz mat package is preempted, and thus, the underlying claim that Mr. Elder's death was a result of an improper design, marking, or warning of the cylinder was preempted. PHMSA did emphasize, however, that the HMTA preemption provision does not insulate anyone from violating a haz mat regulation or when the packaging does not conform to a specification under the haz mat regulations.

The procedure utilized by the defendant manufacturer, filing an administrative petition with PHMSA seeking a preemption ruling, is interesting. Unlike the FRSA, the HMTA specifically permits PHMSA to make a preemption decision on the legal claims brought Mr. Elder's survivors. So, in effect, an administrative agency has made a preemption decision which presumably will end a legal case pending in the Courts.

Monday, July 2, 2012

Happy Birthday to Transportation Law Today!

It was one year ago (yesterday actually), that Transportation Law Today's inaugural post was published. Thank you to all of you who have viewed the blog and posted comments during the last year. From our early posts, which for some reason were extremely popular in Latvia, to our growing audience, thank you for your visits and views.

As a practicing attorney, the "today" portion of "Transportation Law Today" has always been a challenge, but I attempt to provide interestng news and current developments about surface transportation from courts, regulators, and other sources. I look forward to many posts in the future, and again thanks to our readership.

P.S. I've actually been to Latvia - beautiful country.

Thanks again to everyone for the last year. - PJL.

Wednesday, June 27, 2012

USDOT Awards $500 Million in TIGER IV Grants

The USDOT recently announced its latest awards under the TIGER program (TIGER IV) for infrastructure development projects. Details about the awards are attached here. The total grant outlay for this round is $500 million.

A thumbnail review shows about 20% of the funding going to Port and Freight Rail projects. Here is the American Association of Port Authorities announcement about the awards, and here is DOT Secretary LaHood's blog entry on the latest awards.

The remainder of the funding goes to roads/bridges, public transit, passenger rail, bicycle lanes/trails, and walking trail projects.

Some of the big winners are the Chicago Transit Authority, receiving $20 million towards improving the CTA's 95th Street Terminal, and about $10 million to improve freight rail flow in the city. Raleigh, NC gets $21 million to improve its passenger rail station in expection of high speed rail.

Port projects funding include: $12 million to the Alabama State Port Authority to connect the Port of Mobile to Class I rail; $12 million to construct a dock in the Brownsville, TX ship channel, and $6.45 million to Tulsa's Port of Catoosa to resurface a dock and renovate a crane.

Wednesday, June 20, 2012

Insurance Decision Prompts Return of Alleged Syrian Arms Shipment

Here is an example of insurance coverage making significant international news in the on-going conflict in Syria. CNN reports that a Russian ocean carrier, Femco, has purportedly stopped a voyage of one of its ships from Russia to Syria, after the English Insurer pulled its coverage for all of Femco's ships based on the report of the Syrian-bound vessel was carrying arms.

According to new reports, UK Marine insurer, The Standard Club, revoked coverage for the Femco line when informed of the allegations it was carrying arms to Syria.

Thursday, May 31, 2012

USDOT Shuts Down 26 Bus Operators for Safety Violations

The U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) announced yesterday that 26 passenger bus operators were shut down as "imminent hazards to public safety." In addition, 10 individual bus company owners, managers, and employees were ordered to cease all passenger operations, so that those individuals cannot attempt to operate as different or newly created motor carriers.

The action targeted three eastern companies that operated a much larger network of bus companies. The federal investigators found all the carriers had multiple safety violations, which included patterns of using drivers without proper commercial licences.

The Agency's press release is attached here. Also, a Washington Post story on the action is attached here as well.

Wednesday, May 30, 2012

NTSB Calls on Canadians to Investigate Mid-Air Collision between Aircraft owned by FAA and NTSB Employees

The National Transportation Safety Board (NTSB), in conjunction with the Federal Aviation Administration (FAA), has taken the unusual step of asking Canada's Transportation Safety Board to lead the investigation into a mid-air collision that occurred in Northern Virginia on May 28, 2012. Canadian authorities were brought in because one plane was owned by a FAA employee, and the other plane was owned by an employer of the NTSB. The FAA employee survived the crash. Two people on the other plane were killed.

The NTSB press release is attached here, and this is a local CBS news report of the accident.

Thursday, May 24, 2012

Fourth Circuit Holds Piracy Means an Attack, not Just Seizing a Vessel

Yesterday, the U.S. Court of Appeals for the Fourth Circuit in Richmond, VA, upheld the first piracy convictions in a U.S. Court in nearly 200 years. In U.S. v. Abdi Wali Dire, the Court rejected the arguments by convicted Somali pirates that their life sentences should be overturned because their unsuccessful attack on a U.S. warship did not constitute piracy under the law.

Attached here is a press release about the decision from the U.S. Attorney's Office for the Eastern District of Virginia.

The cases arise from the April 1, 2010 attack by a group of Somali Pirates on the USS Nicholas in the Indian Ocean.

The legal issue before the Court was whether the Somalis' failed attack on the USS Nicholas constituted piracy under 18 U.S.C. sec. 1651, which states:

Whoever, on the high seas commits the crime of piracy as defined by the law of
nations, and is afterward brought into or found in the Unites States, shall
be imprisoned for life.

Under cases dating from the original enactment of sec. 1651's predecessor in 1819, piracy had been defined as "robbery upon the sea." United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820). Reasoning that piracy was defined by statute under the "law of nations" the Court looked to two international agreements, the Geneva Convention on the High Seas (1958, ratified by U.S. in 1961), and the United Nations Convention on the Law of the Sea (UNCLOS - 1982), which has not been ratified by the U.S. Both conventions define piracy to include "illegal acts of violence."

Ultimately, the Court found that the 1819 definition of piracy, requiring an act of robbery, was inconsistent with the evolution of the law of nations as to piracy since 1819, and that even in 1819, violent acts themselves were considered piracy.

The opinion, by Judge King (of W.Va. I might add) offers an interesting, and detailed history of the treatment of piracy in the U.S., and the international evolution of its prosecution.

Tuesday, May 15, 2012

Supreme Court Refuses Appeals In Treasure Hunter Cases

As a follow up to my post of September 21, 2011 detailing the 11th Circuit Court of Appeals' decision finding treasure found by Odyssey Marine Exploration was the property of the Spanish Goverment, the U.S. Supreme Court denied appeals from that decision yesterday (see page 12 of linked Order list).

Three separate appeals, or Petitions for Certiorari, for the U.S. Supreme Court to hear the appeals were denied on May 14, 2012. They included appeals by Odyssey Marine, the Government of Peru, and claimed descendants of owners of cargo from the shipwreck.

Contrary to conventional wisdom, it is not always "finders keepers" and possession is not 9/10ths of the law, at least when it comes to the spoils from a sunken warship.

Wednesday, May 9, 2012

Chesapeake-Built River Boat to Cruise Mississippi & Ohio Rivers

The 280 foot Riverboat Queen of the Mississippi is nearing completion at Chesapeake Shipbuilding in Salisbury, on Maryland's Eastern Shore. As explained in this article by Candus Thomson of the Baltimore Sun, the expected August 4, 2012 maiden voyage of the paddle-boat indicates a revival of inland river cruising on the Mississippi. The operator and builder of the Queen of Mississippi, American Cruise Lines, expects a growth market and has begun construction of another riverboat at its Salisbury shipyard.

In addition to routes on the lower and upper Mississippi, several cruises to Cincinnati and Pittsburgh are scheduled in the Fall of 2012. Various ports of call comprise each trip. For example the Ohio River trips will stop in Point Pleasant, WV, Marietta, OH, and Wheeling, WV among other destinations.

Tuesday, April 24, 2012

Maritime Transportation Advisory Council to Meet on Marine Highway Recommendations

The Marine Transportation System National Advisory Council (MTSNAC) has announced a meeting on May 8, 2012 at the USDOT in Washington, DC. The stated purpose of the meeting is to discuss recommendations the Council will make to the Secretary of Transportation "on the integration of marine highways into the national transportation system and the development of a steady and reliable funding mechanism for infrastructure development." The meeting announcement is attached here.

Public participation is available in the afternoon session and those wishing to speak must advise the Maritime Administration by May 1, 2012. The Council will accept written comments until May 11, 2012.

A Copy of the Council's Charter is attached here.

More information about the Marine Highway system is available here from the MARAD website.

Friday, April 20, 2012

Kentucky House Funds Dredging & Bridge Repairs

The Kentucky House of Representatives, in the recently passed House Bill 2 in the current special session, has appropriated $500,000 per year for the next two fiscal years for "Riverfront Improvement." The funds to "improve public riverports within Kentucky," are to be "limited to dredging and maintenace of access." According to the Bill, the Secretary of the Transportation Cabinet, in conjunction with the Kentucky Water Transportation Advisory Board, will determine how the funds are actually allocated. The Bill also commits two years of funding to the Louisville-Southern Indiana Ohio River Bridges Project. This project is part of the effort to replace Ohio River bridges recently found not structurally sound, as noted by this prior post. In total, the Kentucky Transportation Cabinet budget for the next two fiscal years is set at $2.38 to $2.400 billion dollars.

Friday, April 13, 2012

USDOT Offers Free App for Bus Safety

The USDOT's Federal Motor Carrier Safety Administration (FMCSA) has developed a free App(lication) for the iPhone and iPad. The SaferBus App permits allows users to view safety data for interstate bus carriers, as well determining if the carrier is licensed to operate. Safety data is available based on the carrier's USDOT number, or MC (motor carrier) number, which is physically displayed on vehicles.

For non iPhone/Pad users, the safety database is available online.

Monday, April 9, 2012

FRA Issues Locomotive Safety Standards - Clarifies Diesel Exposure Regulation/Alters Inspection Requirements

The Federal Railroad Administration published its final rule updating Locomotive Safety Standards on April 7, 2012. The Rule becomes effective June 8, 2012.

Among the items of interest is the Agency's interpretation of 49 CFR 229.43, covering diesel fumes in locomotive cabs, and FRA's extension of the time intervals for periodic locomotive inspections.

The previous 92-day interval for comprehensive locomotive inspection/maintenance has been doubled to 184 days for units with "microprocessor-based control systems with self-diagnostic capabilities." These more modern units are designed for 184-day maintenance, whereas the 92 day standard reflected the manufacturer-recommended maintenance interval in 1980.

Regarding diesel exhaust in cabs, the FRA did not alter section 229.43, which also dates from 1980. Under 229.43(a): "Products of combustion shall be released outside the cab and other compartments. Exhaust stacks shall be of sufficient height or other means provided to prevent entry of products of combustion into the cab or other compartments under usual operating conditions."

In its rule notice, the FRA interpreted 229.43 as such:

"However, FRA did not intend for sec. 229.43 to prevent any and all diesel exhaust from being present in an occupied locomotive cab. It would be impracticable to try to eliminate all diesel exhaust in the locomotive cab." 77 FR at pg. 21323.


"... FRA does not believe that is is possible to prevent the re-entry of diesel exhaust into the locomotive cab through windows or ventilation system intakes, and has never enforced the existing regulation in such a manner." 77 FR at 21323.

This clarification that FRA does not enforce de minimus exhaust in cabs as a violation of section 229.43 is helpful, but, because the actual language of 229.43 has not been changed, it is still entirely possible that a railroad could be liable for the presence of exhaust in cabs, absent negligence by the railroad or a specific locomotive defect, because the regulation simply prohibits exhaust from cabs "under usual operating conditions."

The unanswered question is whether this new FRA interpretation of 49 CFR 229.43 has any impact on courts considering whether the presence of diesel exhaust in a locomotive cab, in and of itself, constitutes a violation of the Locomotive Inspection Act (LIA).

Friday, March 30, 2012

9th Time is the Charm for Temporary Surface Transportation Funding

President Obama signed a 90 day extension for surface transportation funding, representing the 9th temporary extension of such funding since 2009. This latest move preserves on-going projects and continues the government's authority to levy the gasoline tax. Here is media report from the Washington Post.

Needless to say, this latest stop-gap measure pushes the legislative work even furhter into the election year.

See my earlier post about a prior House version of the legislation.

Wednesday, March 21, 2012

Supreme Court Resolves LHWCA Circuit Split

Yesterday, the U.S. Supreme Court ruled that under the Longshore and Harbor Worker's Compensation Act (LHWCA, 33 U.S.C. Sec. 901), an employee is "newly awarded compensation" when he first becomes disabled, and therefore entitled to benefits calculated in that fiscal year, not a later year when a compensation order is issued. This decision by Justice Sotomayor resolves a split among U.S. Courts of Appeals that had calculated benefits based either on date of disability, or, the date of an award Order.

The LHWCA generally functions like a workers compensation program, where an employer is obligated to pay benefits to an employee injured on the job. The Act caps disability benefits at "twice the applicable national average weekly wage" for the fiscal year where an employee is "newly awarded compensation." 33 U.S.C. 906(b)(1). In most cases employers pay benefits without contesting liability, but if an employer does contest the claim, the Dept. of Labor will adjudicate the claim, which if decided in the employee's favor, results in a compensation award.

In the case before the Court, the issue was whether the employee was due the wage rate for the year he was injured, or the year in which the an Order requiring payment under the Act was issued. The rate for the year in which the Order was issued was higher than the rate for the year the injury occurred. Justice Sotomayor, and seven other members of the Court, held that the date of disability controls the benefit amount, not the date of a potential order issued in the future. The Court cited the possibility of unequal treatment of similarly situated claimants, where one claimant could potentially garner a higher rate by delaying or contesting a LHWCA benefit being voluntarily paid by an employer. Also the Court recognized the potential for "gamesmanship in the claims process" if the benefit rate were based on an adjudication date as opposed to the date of disability onset.

Tuesday, March 20, 2012

Fourth Circuit Requires Foreign Seaman to Arbitrate Claims in Home Country

The U.S. Court of Appeals for the Fourth Circuit (based in Richmond, VA), ruled on March 16, 2012, that a Filipino seaman injured in the U.S., was required by his employment contract to arbitrate his injury claims in the Philippines. The Court's decision rested largely on the application of the "Convention Act" 9 U.S.C. sec. 201, which recognizes and enforces commercial arbitration agreements in international contracts. The Fourth Circuit, in line with prior rulings by the 9th and 11th Circuit Courts, ruled that the Convention Act, and hence the arbitration agreement in the employment contract, supplanted the Seaman's Wage Act (46 U.S.C. 10313), and required arbitration of the wage and other claims.

Addressing the injured seaman's Jones Act claim, and specifically his argument that requiring arbitration would contravene U.S. public policy by denying him access to U.S. law under the Jones Act, the Court did not entirely foreclose a public policy argument. What the Court did was to find that a public-policy argument (i.e. a non-U.S. arbitration could deprive the injured seaman of a Jones Act remedy), could be made only after an arbitration award was made, in what it termed the "award-enforcement stage."

Ultimately the Court also found the lower court (U.S. District Court/Maryland), erred in its dismissal of the case even though it agreed with the lower court's enforcement of the arbitration requirement. The Fourth Circuit held that the District Court could retain jurisdiction over the case after the arbitration award stage to later consider the policy arguments made by the seaman.

The Court also found the District Court could retain jurisdiction over the seaman's request for injunctive relief regarding maintenance and cure benefits, which the District Court had denied as moot when it ordered arbitration.

Thursday, March 15, 2012

Happy St. Patrick's Day From TLT

Here's an interesting and topical shipping story as St. Patrick's Day approaches. According to this Journal of Commerce article, U.S. imports of Guinness products are up nearly 250% early this year.

For the statistically-minded, this Census Bureau data shows a trade imbalance with the U.S. and Ireland (in Ireland's favor) of approximately $2.3 billion.

St. Patrick's day falling on a Saturday will no doubt impact retail sales as well. Just remember, green beer may seem like a good idea at first, but you'll probably fare better with an authentic Guinness should you develop the Irish flu on Sunday. Also remember the Rx for the Irish flu is another Guinness.

Finally, here is a link to the mother-ship at St. James Gate, Dublin.

Thursday, March 8, 2012

NTSB Issues Rail Safety Recommendations Following 2009 Ethanol Derailment

On March 2, 2012, the National Transportation Safety Board (NTSB), issued 15 Rail Safety recommendations related to the June 19, 2009 CN derailment in Cherry Valley, Illinois. In the accident,13 of the 19 derailed ethanol tank cars were breached and caught fire, causing one fatality and several injuries.

The Board had previously determined the probable cause of the derailment was a washout of the track structure discovered before the arrival of the train which derailed. The Board's recommendations range from advising railroads and public entities to assess trackside stormwater drainage, to tank car integrity and crashworthiness improvements.

Among the recommendations related to rail tank cars, are the Board's recommendations that existing DOT-111 tank cars carrying ethanol be retrofitted to improve shell puncture resistance and prevent exposed valve fittings from opening in an accident. (R12-6 - R12-8).

The call to retrofit some 40,000 in service tank cars carrying ethanol is likely to be controversial, given the conservative estimate of the Railway Supply Institute of the retrofitting to be $1 billion dollars.

The Recommendations, which are not mandatory, are attached here:

R-12-1 & 2

R-12-3 and 4, reiteration of R-07-2

R-12-5 through 8, reiteration of R-07-4




R-12-12 through 15

Tuesday, March 6, 2012

Supreme Court Rules States Do Not Own Non-Navigable Portions of Rivers

In a decision issued February 22, 2012, the United States Supreme Court reversed a decision by the Supreme Court of Montana, which assessed $41 million in "rent" due to the State for river beds used by hydroelectric power plants. Under the "Equal Footing Doctrine," which provides that upon statehood, a State gains title to beds of waters "then navigable." However, any land beneath waters which were not navigable at the time of statehood are retained by the federal government.

The Court rejected the Montana Supreme Court's finding that the various rivers in question, and particularly the portions where the power company made use, were navigable for title purposes, and thus property of the State. The Court applied a segment by segment approach, which the lower Court had deemed inapplicable for "short interruptions" of navigability, and found non-navigable sections of river, including portages, do defeat navigability for title purposes. In other words, the U.S. Supreme Court essentially concluded that a state can't claim title, and charge rent for, sections of its rivers which were not navigable upon statehood, and that no exception for "short interruptions" applies.

The Court distinguished navigability determinations under the equal footing doctrine from navigable waters determinations for admiralty jurisdiction, noting a much more expansive definition of navigable waters for jurisdiction purposes.

Friday, February 17, 2012

STB Partially Upholds Railroad's Haz-Mat Routing Decision

In a decision issued February 8, 2012, the Surface Transportation Board, approved the BNSF's decision to interchange Vancouver-originated chlorine cars in Portland,OR to another RR, when BSNF had previously carried chlorine shipments to Kansas City for interchange to another carrier. The Board in the same decision, overruled BNSF's decision to interchange chlorine cars originating in Marshall, WA in Spokane, WA, and required it to continue to provide a route from Marshall, WA to Kansas City.

The case (Canexus Chemicals Canada, L.P. v. BNSF Railway Co. - STB Rate Docket 42131) was initiated by the Shipper, Canexus, seeking a ruling that BNSF maintain its prior routing (i.e. interchange at Kansas City).

Though not specifically addressed by the Board in the decision, Canexus had alleged that BNSF's proposed routing changes were intended to reduce liablility for potential accidents for TIH (Toxic by Inhalation) shipments, such as chlorine. If that was the railroad's motivation behind the route changes, requiring it to transport chorline cars for much shorter distances, it represents another another skirmish in the TIH debate. See my earlier post about attempts by railroad's to include indemnity provisions in their published tariffs for haz-mat shipments, here.

In the Canexus case, the Board found it reasonable for BNSF to interchange its Vancouver-originated traffic at Portland, but not the Marshall, WA traffic at Spokane, largely on the basis the existence of current interchage points, and the directness of the new routes.

Also of significance is the Board's decision that BNSF did not violate its Common Carrier obligation to provide written rates to a shipper requesting them, and then to provide service based on those rates upon reasonable request. The Board also reiterated the policy that originating carrier's routing choices are generally given preference.

It will be interesting to see of this decision encourages carriers to examine their routes for potential interchanges that reduce the miles an originating carrier hauls TIH materials.

Tuesday, February 7, 2012

FRA Proposes Extensive Training Requirements For Safety-Related Employees

The Federal Railroad Administration (FRA), published a Notice of Proposed Rule Making (NPRM) today, calling for the implementation of extensive training and oversight requirements for safety-related employees. This NPRM results from a mandate to the FRA from the Rail Safety Improvement Act of 2008.

The detailed rule proposes various new requirements including creating training standards for all safety-related rail employees on minimum Federal Safety requirements, and requirements for such training programs, including specific recommendations for on-the-job (OJT) training. Railroads will be required to submit to the FRA for approval, much like current requirements for Engineer Training under 49 CFR part 240, proposed training programs including "a description of its training program, a description of procedures used to design and develop key learning points for any task-based or knowledge-based training." (pg. 6426). The stated reason for this detail in the plan is the concern that "FRA will not have enough insight into whether an employer is going through all the necessary thought processes to develop comprehensive learning points for any particular task or knowledge-based training."

As noted above, the rule also requires specific OJT requirements, including a statement of all tasks to be completed in OJT, a statement or list of "the conditions necessary to ensure that learning can be successfully accomplished," and a statement of the standards by which proficiency will be measured. All of this leads to requirement that the employer create a manual or checklist for all the tasks and related steps "for a particular category or subcategory of employee in one manual, checklist, or other similar document." (pg. 6426).

A provision exists under the rule for railroads to use training contractors or organizations, however the railroads are not relieved of their reporting requirements of their proposed plans if they outsource the training (See proposed section 223.111).

There are also record keeping requirements (sec. 243.203), periodic oversight (sec. 243.205), and mandatory annual review to be conducted internally by the railroads (243.207). Smaller railroads (less than 400,000 work hours), are excepted from the annual review requirement. However, railroads conducting an annual review will be required to analyze injury reporting data, and an analysis of "inspection report data", i.e. citations from FRA inspections in the annual review. (pg. 6442).

The FRA estimates a 20 year, non-discounted cost, of these requirements to the industry of $81.6 million.

What will likely be the effect of this rule is that Railroads will expend considerable effort in detailing the methodological basis for existing safety programs in use throughout the industry. Virtually all of the covered employees receive training in federal requirements in order to do their jobs under both federal and internal requirements, such as engine service personnel, track workers, and track inspectors.

Also of note is the FRA's statements on its jurisdictional relationship with OSHA. In deciding in this NPRM to propose its own rules for cranes on track, and off-track equipment, the FRA reiterates its 1978 policy to regulate "those issues that are of an occupational nature and that have a significant impact on railroad operations." (pg. 6417).

It seems to me that the proposed rule is not likely to result in radical changes in how railroad employees are trained, which generally includes classroom instruction and OJT. What seems to be the import of this rule is having railroads, and railroad training providers, detail their programs for approval so the FRA may then in the future look to the approved programs for either beneficial or negative affects on worker safety. It is a laudable goal, but the detail required in the proposed safety programs from the railroads, which the FRA will in turn approve, is significant, as is the annual internal-review requirement.

Wednesday, February 1, 2012

Surface Transportation Bill Delays Positive Train Control, Cuts Amtrak, Calls for Harbor Funds to Be Spent

The House Transportation and Infrastructure Committee has released its proposed surface transportation reauthorization bill, titled "The Amercian Energy & Infrastructure Jobs Act." According to the Committee's schedule, a mark-up session is scheduled for tomorrow.

Here is Chairman John Mica's (R-FL) Press Release and the House Republicans Summary of the proposed bill (H.R. 7), is attached here. A link to the actual text of the 846 page bill is included within the chairman's press release.

Among the items covered in the bill is a five year extension, to 12/31/2010 for railroads to install Positive Train Control systems on certain track, which is explained as increasing "the opportunity for successful implementation" of PTC.

Also in rail arena, Amtrak would lose 25% of its operating subsidy in fiscal years 2012 (i.e. now), and 2013 in an effort to "focus it on providing better service."

For waterborne transport, the bill notes the Harbor Maintenance Trust Fund (HMTF) has had increased revenue of 17.3% in 2011, but that expenditures from the fund have declined. The Bill does not mandate specific action, but makes these pronouncements about the Fund: 1) that "HMTF is not being used for its intended purpose and charging maritime commerce a maintenance tax while failing to provide the service for which it was established is unfair and places the Nation at economic risk." The Bill also urges the Administration to "request full use" of the fund "for operating and maintaining the Nation's navigation system; and for Congress to "fully expend the amounts" in the fund." (see Bill text at pages 823 and following).

The Bill also contains various consolidation/elimination proposals for duplicative programs, and for streamlining agency rule making. I hope to post in the near future on the proposed regulatory reforms.

Friday, January 27, 2012

BP on the Hook for Some Transocean Spill Costs

A federal judge in New Orleans has ruled that BP is responsible for paying third party damages asserted against oil rig owner Transocean, even if the cause of the damages to the third parties was the negligence, including gross negligence, of Transocean. The Order from District Judge Barbier is attached here. The basis of the Court's ruling is the contractual indemnity provision between BP and Transocean, allocating certain liabilities for injuries, accidents, and pollution from the operation of the rig.

This litigation of course arises from the April 20, 2010 explosion and fire of the Deepwater Horizon rig in the Gulf of Mexico and the subsequent oil spill from the sea floor.

The Court also ruled that BP is not required to compensate Transocean for any punitive damages levied against Transocean, nor is BP required to reimburse Transocean for any potential fines under the Clean Water Act.

The Court deferred ruling on whether BP's indemnity obligation could be voided by Transocean's acts that could be construed to have breached the drilling contract, and thereby prejudiced BP's rights. The Court did not rule on this issue as it involved factual determinations which cannot resolved by Summary Judgement under Fed. R. Civ. P. 56.

Monday, January 23, 2012

New Airline Passenger Regulations Take Effect This Week

Several new airline passenger rules take effect this week, implementing the FAA consumer rule originally issued in April 2011. This Press Release announces the new rules.

Among the rules going into effect:

1. All mandatory taxes/fees, including baggage fees, must be disclosed in published airline fares;

2. Passengers no longer have to pay to hold a reservation, or to cancel it within 24 hours of making a reservation, for travel booked a week in advance;

3. Passengers must be notified promptly of flight delays exceeding 30 minutes;

4. Baggage fees for lost bags must be refunded, and compensation has increased for being bumped from an oversold flight (these took effect in August 2011).

Friday, January 20, 2012

Cruise Ship Disaster Leads to Speculation about Passenger Remedies

It was not long after the news of the Italian cruise ship broke, with details of passengers missing and deaths, that speculation about the potential remedies of the passengers began in earnest.

Since the details of the accident, particularly the course deviation by the captain, and his less-than-heroic response to the accident, a prevalent topic has been whether American passengers could sue in the United States for death or injuries. This speculation, no doubt, has been highlighted by the missing American couple from Minnesota, whose story has been well publicized.

Most commentators agree that legal options for American passengers for a mishap in Italian waters, are limited by the ticket-contract for the voyage, which contains a forum selection clause, reported to be Genoa, Italy, and the lack of a port call in a U.S. port. Federal courts in the U.S. have generally upheld ticket contracts with choice of venue provisions, despite the inconvenience and expense of an American attempting to litigate in a foreign Country. For example, the U.S. Court of Appeals for the 11th Circuit, based in Miami, upheld forum selection clause (in favor of litigating in Paris) for claim made by an American injured during a cruise in French Polynesia. That unpublished Opinion is attached here.

Another issue is the applicability of the "Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea," also known as the "Athens Convention." This international agreement limits recovery for death or personal injuries to approximately $80,000.00 per person. This convention is likely to apply wherever a claim is made, even in the U.S. However, the carrier can lose the right to limit liability "if it is proved that the damage resulted form an act or omission of the carrier done with intent to cause such damage, or recklessly and with with knowledge that such damage would probably result."

Given the reported behavior of the Master and some crew members, reckless behavior seems to be demonstrated by: the course deviation, the reported failure to advise authorities of the true nature of the ship's distress, and the reported failure to assist in the abandonment/evacuation of the ship. If what has been reported in the press is accurate, claimants stand a reasonable chance to pierce the limit of the Athens Convention.

Another avenue is subsidiary liability, since Costa Cruises, is a subsidiary of Miami-based Carnival Corporation & PLC. It is almost certain that the Costa Concordia's Master deviated from company policies in steering close the island and off the planned course. It will be a stretch to claim the parent Corporation in Miami is liable for the Master's apparent negligence, though I think it is likely that someone will try. Somewhat related to the issue of control of subsidiaries, which is an issue in subsidiary-liability cases, is this recent announcement by the parent corporation that it will audit and review Safety and Emergency Response Procedures in its nine different cruise lines. Part of the review is to include officer and crew training and evaluation.

Given the high-profile of this accident, and the growing awareness of the limited remedies available to U.S. passengers, I will not be surprised if there are challenges to both the ticket-contract venue provisions and the limitation of liability, even if potential success is questionable.

Wednesday, January 11, 2012

U.S. Surface Trade with Canada and Mexico up 12%

U.S. Trade with NAFTA signatory countries Canada and Mexico was up 12% from October 2010 to October 2011. The attached release from the USDOT Research and Innovative Technology Administration's Bureau of Transportation Statistics, details the increase in trade over the period.

The overall value of combined import/expert trade with Canada and Mexico was just over $79 billion. Also of interest is the fact that the following rust belt states, Michigan, Ohio, and Pennsylvania, made the top 10 list for among states for trading volume with both Canada and Mexico.

Among the surface modes, "land modes" (i.e. highway, rail, and pipeline)dominated with 86.1% of U.S. trade to Canada and Mexico, with Vessel traffic representing 9.6%and Air 4.3%. Over all modes imports increased by 12.7% and exports by 11.2%. Both truck and rail exports showed strong increases during the period, 10.7 and 21.4% respectively.