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.
Friday, February 17, 2012
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.
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.
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.
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).
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.
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.
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.
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