Breaking Through The CSX No-fault Impasse

By James McGovern and Timothy Murray The Herald News Posted Mar 27, 2009 @ 05:35 PM Fall River — A historic agreement that would improve and extend the commonwealth’s rail system for both passenger and freight service, and boost the economy of the region, has been stalled for months because of an unreasonable demand for no-fault liability from CSX, the national railroad serving Massachusetts. A new federal report examining the issue, however, exposes the weakness of CSX’s position and should help break through this impasse.The deal at stake holds the future for commuter rail service west of Boston and to the SouthCoast region around. The agreement involves the rail line from Allston to the MassPort terminals in South Boston, and the Grand Junction, the line that crosses the Charles River near Boston University which is the only north-to-south freight rail connection through the city. This agreement, announced in principle last fall, also calls for raising the bridge clearance at railroad crossings west of Boston so freight trains can roll through the state with two containers stacked on each flatbed. Double-stacking will significantly expand the capacity of the system and make it more cost-effective. That’s good for CSX and for companies that ship goods by rail. It’s good for motorists and the environment because fewer trucks on the road eases congestion and improves air quality. And it helps the regional economy because Massachusetts is the rail gateway for New England. About 40-precent of all rail traffic in the six-state region flows through Massachusetts.We have come to agreement on all major elements of this plan, except the question of liability after the state buys the rail lines in question from CSX. The issue is who should be responsible for damages if there is an accident involving freight and passenger trains. CSX demands that it have no liability for an accident, even if it is the sole cause of that accident. Throughout our negotiations with CSX, the company has asserted that this no-fault provision is the industry standard, but that turns out to be incorrect.Because other states are also grappling with this same no-fault issue, Congress asked the U.S. Government Accountability Office to examine the question. The GAO report, released March 26, dispels the notion that no-fault liability, even in cases of gross negligence or willful misconduct, is the industry standard. In fact, there is no industry standard.The GAO report describes a hodgepodge of agreements across the country, with varying combinations of liability provisions. Furthermore, the GAO report cites a recent decision from the U.S. Court of Appeals that found “it was against public policy to indemnify for gross negligence and willful misconduct because this could undermine rail safety.” That’s just commonsense, and our efforts in Massachusetts should be guided by the simple notion that people and companies are responsible for their own actions.Think of it this way: a tractor trailer truck speeding out of control on Route 128, its driver drunk and barely conscious after logging 36 straight hours on the road, slams into a school bus. Who is at fault? Who pays for the damages? Under CSX’s view of the world, the truck driver (assuming he lives) and the trucking company would walk away scot-free, with all the damages paid by the state highway department.Clearly this is an absurd scenario, but it is what CSX is asking for with no-fault liability, even in cases of gross negligence or willful misconduct. No-fault is bad public policy. It undermines the basis of our justice system and it creates an environment where the freight railroads would have no incentive to maintain safe equipment and operating procedures.Today, the passenger-freight liability arrangement between the state and CSX is mixed. On the lines CSX still owns, they demand no-fault. But every day CSX runs its trains over tracks already owned by the state (MBTA) and on those tracks there is a fault-based liability arrangement, with each party taking on the responsibility to pay for damages if it is at fault.That policy should stay in place if and when the state takes ownership of the tracks. At the end of the day, we all want the same things. We want to see our freight and passenger rail systems thrive and grow. To do so, however, will require the parties to come together and work in a spirit of true partnership. It will require the federal government to act and set a true national standard for these liability arrangements. And it will take the state’s resolve to use all the legal tools at its disposal to break this impasse and complete the rail plan which holds so much promise for the economic and community development of our state and New England.Timothy Murray is Massachusetts’ lieutenant governor. James McGovern is a U.S. Congressman representing the Third Congressional District.