Academic journal article Defense Counsel Journal

Railroad Tort Liability after the "Clarifying Amendment:" Are Railroads Still Protected by Preemption?

Academic journal article Defense Counsel Journal

Railroad Tort Liability after the "Clarifying Amendment:" Are Railroads Still Protected by Preemption?

Article excerpt

IT IS 6:30 A.M. in central Chicago. A train transporting five chlorine-filled rail cars, each with a 90-ton capacity, approaches the Union Street interlocking on its way through the city. (1) Without warning, an explosion rips through the tracks underneath the train, sending several chlorine tankers sliding onto adjacent lines. (2) Minutes later, before the railroad's dispatch center in Fort Worth, Texas can signal an all stop, a local commuter train slams into the train at 30 miles per hour. (3)

The impact punctures one of the tanker cars and the chlorine leaks, vaporizing instantaneously as it escapes. (4) It drifts with the wind, forming a yellow-green haze that hugs the ground and lingers in low-lying areas. (5) Chlorine is a "toxic inhalation hazard" ("TIH"), lethal after a 30 minute exposure at relatively low concentrations of 400 ppm, or within moments at 1000 ppm. (6) When inhaled, chlorine reacts with moisture in the lungs to form hydrochloric acid that leads to pulmonary edema. (7) The resulting fluid build-up in the lungs can quickly lead to death by asphyxiation. (8)

In a worst-case scenario, the poisonous cloud spreads over a 14.8 square mile area. (9) The ground-level area within one half mile of the wreck is transformed into dead-zone. The gas cloud within that area is lethal within minutes, and those within in an area with concentrations above 400 ppm. have less than half an hour to evacuate the area. (10) The attack could result in as many 17,000 fatalities, depending on the weather conditions and volume of chlorine discharged. (11) Economic damages could be similarly catastrophic. (12) This scenario, though dire in consequence, would not require any particularly advanced technology--just a bit of planning, logistical preparation, and a small amount of explosives. (13) Yet because of the nation's dependence on TIH materials, chlorine in particular, (14) such a nightmare remains an all-too-possible reality.

As America becomes more aware of its vulnerability to terrorism or other disasters, industries involved in the manufacture, transportation, and consumption of hazardous materials are becoming more concerned about their potential liability should TIH materials in their possession be unleashed on the general population. (15) While many industries are unsettled by the prospect of "ruinous liability," railroads view themselves as particularly vulnerable because their status as common carriers forces carriage of all hazardous materials, regardless of potential exposure to tort liability. (16)

Two relatively recent developments have raised the possibility of enhanced liability to common carriers. First, the addition of a so-called "Clarifying Amendment" to the Implementing Recommendations of the 9/11 Commission Act of 2007 curtailed the long-standing federal preemption doctrine for railroads. (17) Second, case law spawned by the 1993 World Trade Center bombings (18) and the 9/11 (19) attacks suggests that terrorist attacks may not constitute intervening causes absolving (20) a railroad of tort liability to individuals harmed as the result of a terrorist attack or related event. (21) Railroads see this situation as "untenable" because they must shoulder virtually the entire liability of transporting TIH chemicals that they do not want to transport in the first place. (22)

This situation created a heavyweight showdown between the railroads and shippers before the Surface Transport Board ("STB"). (23) The railroads asked STB and Congress to allow them to contract for indemnity sharing provisions with shippers; create liability caps; and/or alternatively, a Price Anderson Act (24) system of indemnification pooling and liability caps like that used in the nuclear industry. (25) For their part, shippers, led by chemical manufacturers, argued that the railroads are exploiting the current political climate to insulate themselves from liability for their own negligence in the wake of recent TIH accidents, even though underlying market and operational conditions have not significantly changed. …

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