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1964

ATTACHMENT D-1-RESULTS OF INSPECTIONS FOR THE YEARS ENDED JUNE 30, 1961 THROUGH 1967

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ATTACHMENT D-2-LOCOMOTIVE ACCIDENTS AND CASUALTIES CAUSED BY FAILURE OF LOCOMOTIVE PARTS OR APPURTENANCES, FISCAL YEARS 1961-66

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The CHAIRMAN. I notice in your statement on page 15 you say:

We have not included the Hours-of-Service Act among those statutes to be replaced by the general authority proposed in the present bill. Our decision here was predicated in part upon the advice which the Interstate Commerce Commission furnished this committee to the effect that it was unable to establish any direct relationship between railroad accidents and the hours-of-service limitation. Sometime toward the end of 1966 after extensive hearings on legislation having to do with the act, I wrote the chairman as follows:

While I appreciate that the testimony which you presented during the hearings was to the effect and did not possess sufficient information as to any opinion upon the provisions of section 281 of the bill that it should be approved, I should welcome your reviewing the body of information that you do have concerning it for the purpose of determining what relationships there may be with the hours of service.

To my knowledge I have not yet heard from the Commission in 1968 in response to this request made in 1966.

Inasmuch as thereafter the Bureau was transferred, have you carried anything out and do you know anything about this request?

Mr. LANG. I am familiar with the fact that such a request was made, Mr. Chairman, and I was advised by my people, and the people came over from the Commission, that they had taken another look at all the available statistics and they came to a conclusion. Why that information was not furnished to the committee, I cannot say. I myself during the last year have also asked my people to review this matter again, and again they have assured me that our present statistics and the information presently available to us does not support or oppose one way or another the contention that the length of service has some correlation with accidents. That is to say, our present statistics are just incapable of discerning any relationship there but they do not tell us that it does not exist, they just say we cannot find it with these numbers.

The CHAIRMAN. Then you have the same group of men working for you that was working for the ICC when they made their request? Mr. LANG. Yes.

The CHAIRMAN. You know at that time Chairman Bush said he did not have sufficient information, and I would think that within 2 years he would be able to get that information or somebody would be able to get it so they could make a reply to the committee one way or the other to let us know.

Mr. LANG. I think we would have to undertake to review the matter again, and we will advise you.

The CHAIRMAN. I do not know where they are going to get the information if they do not have it available to them. Maybe the committee should start looking for it.

In your view of the bill does this cover publicly owned railroads, subways, street railways, and so on?

Mr. LANG. It would, Mr. Chairman, as I understand it, cover all railroads that handle traffic in interstate commerce if they were publicly owned as the Long Island Rail Road is now, for example, and it would be covered.

The CHAIRMAN. Subways, street railways, and so on?

Mr. LANG. Only those subways which are interstate in character. At the present time there is only one such line in existence and that is the so-called PATH line of the Port Authority of New York and we do currently regulate them under our existing statutes.

The CHAIRMAN. Now section 3(a)(2) of the bill regarding the scheduling of trains. I notice that you mention there the frequency of

use.

Mr. LANG. No; that term there is meant to relate to the frequency of inspections of equipment and also the frequency of maintenance, not the frequency of use in the sense of how many trips a piece of equipment might make.

The CHAIRMAN. Does the equipment there mean equipment required by the shops?

Mr. LANG. To the extent that the equipment used in the shops had a potential impact on the safety operation of the rolling stock which it was used to repair, it would be my sense that it would be covered; yes, sir.

The CHAIRMAN. Now in 3 (a) (3) you have there the qualifications of employees. Does the qualification of employees refer to all personnel or only operating personnel?

Mr. LANG. That provision was included for essentially the same kinds of reasons that such provision is included in the Federal aviation safety statute; namely, that it would allow us, if the fact showed it was necessary, to assure that both men operating vehicles and those who were maintaining them to keep them in safe condition were properly qualified either to do the maintenance or the inspection associated with the maintenance.

The CHAIRMAN. Does this supersede any labor agreements relative to operation?

Mr. LANG. It is not our expectation that it would ever in any sense supersede any agreements that have been reached through collective bargaining by the carriers and their employees; no, sir.

The CHAIRMAN. Section 3 (c) are exemptions in order?

Mr. LANG. The granting of exemptions would be done following the same procedures that we follow in making regulations, rules or standards; that is to say, the facts of the case and the interest of the parties involved would determine whether or not an oral hearing was

necessary.

The CHAIRMAN. Would an order be issued?

Mr. LANG. Yes, sir. We do this now under our existing statutes. We have occasion to do it rather frequently under the Signal Inspection Act where we grant exemptions from our standard regulations where a carrier can show that the special circumstances are such that some

variation from the standard regulation is in order. On many of these cases where there is no particular question involved, none of the interested parties see any problem with the request on the part of the carrier, we issue an order without hearing. On a great many others where additional facts seem to be in order or where one or the other of the parties of interest indicate that they would like to get on record with their opinions regarding the request for relief, we do hold hearings. The CHAIRMAN. Section 5(b) on page 5, "except to the extent that the action creating the liability was specifically compelled by any such standard, rule, or regulation"; what was the conditioning?

Mr. LANG. I would like Mr. Corcoran to answer that; he probably could give you a clearer answer than I.

The CHAIRMAN. Would you state your name and position for the record?

Mr. CORCORAN. My name is Leroy C. Corcoran and I am Chief Counsel of the Federal Railroad Administration.

The CHAIRMAN. Thank you. Proceed.

Mr. CORCORAN. Mr. Chairman, section 5(b) of the bill before the committee is comparable to 8(b) of the pipeline bill that you referred to. The effect of section 5(b) is really to say that by complying with a particular standard or a rule or regulation a party shall not be absolved from what would otherwise be his common law or statutory liability for negligence.

The CHAIRMAN. I don't quite get that. I don't quite understand that. I am trying to find out this thing that you say, "except to the extent that the action creating the liability was specifically compelled by any such standard, rule, or regulation," and I assume that you are saying that the Commission makes themselves.

Mr. CORCORAN. That is correct, Mr. Chairman.

The CHAIRMAN. I want a little better interpretation of that if I can

get it.

Mr. CORCORAN. Where a specific standard has been met, it would say in effect, that the party, and in this case the carrier, has fulfilled his obligations under that standard.

The CHAIRMAN. Now I understood that just a little bit differently. Mr. CORCORAN. The thrust of that section, Mr. Chairman, is the first portion which says that simply by complying with the standard a party shall not be otherwise free from negligency if by common law or statutory law a party to an action has a right to charge another party with negligence. The thrust of that is in the first portion of that

sentence.

Mr. LANG. If I might, Mr. Chairman, as a nonlawyer and as I read. this exception at the bottom, a party could not be held liable simply because he complied with any rule, regulation, or standard that we might have promulgated and under which he was operating.

The CHAIRMAN. Well, when you read that with the top part of it I do not quite get that interpretation, either. I am just trying to figure out exactly what you do mean and what the language is and a better interpretation for the committee really as to what you mean.

Mr. KORNEGAY. Mr. Chairman, I might make an observation on the point you have raised. This certainly realtes to the provision which he says is in the Pipeline Safety Act, it does not carry the exemption which is carried in the Railroad Safety Act.

The CHAIRMAN. That is what I am trying to get at.

Mr. KORNEGAY. This is much weaker than the Pipeline Act.

The CHAIRMAN. I do not understand why they have it here when they already have it. I think it needs a little interpreting.

Mr. LANG. We will clarify that for the record in writing, Mr. Chairman, or we will try to.

The CHAIRMAN. I would like to see that answered because unless the English language does not mean exactly what I think it does, you will have a hard time.

(The information requested follows:)

FEDERAL RAILROAD ADMINISTRATION (DOT) ANALYSIS OF SECTION 5(b),

H.R. 16980

The committee is concerned with the legal effect of § 5(b) of H.R. 16980 in the following areas: (a) the liability of "persons" covered by the Act as that term is defined in § 2(4) therein; (b) the scope and meaning of the exemption, and (c) the liability of the Government, including preemption of liability of carriers. Purpose of Section 5(b)

Section 5(b) provides that:

"Compliance with any standard, rule, or regulation established under this Act does not exempt any person from any liabiilty which would otherwise accrue, except to the extent that the action creating the liability was specifically compelled by any such standard, rule, or regulation."

"Person" is defined by § 2 (4) of H.R. 16980 as:

"Any individual, firm, co-partnership, corporation, company, association, jointstock association, or body politic; and includes any trustee, receiver, assignee, or other similar representative thereof."

Subsection 5(b) has a twofold purpose. First, to preserve the preesnt state of the law with respect to the liabilities of covered "persons", as defined in § 2(4) above, and second, to protect from liability any covered person specifically required by Department of Transportation (DOT) rules or regulations to perform an act which they would not otherwise do, provided, however, due care was exercised in performance of such act. This exception is intended to be a very narrow one and to reach only specific acts, the mere doing of which would otherwise incur liability and not to reach standards or conditions required to be maintained. For example, an employee of a carrier required to perform a specific act by DOT rules and regulations would not be held liable for the performance of such act provided he was otherwise exercising due care.

The reason for the inclusion of section 5(b) is to make certain that the mere fact that DOT regulations were complied with by the person being charged, with negligence, will not enable him to plead that he had acted with reasonable care. Otherwise, a defendant might show that there was no known violation of the DOT standards, rules or regulations (although there might be a hidden or undetected one) and that, therefore, he was exercising due care and thus entitled to a defense of compliance with Federal requirements. Acceptance of such a defense by a court would have the practical effect of forcing a plaintiff to establish a violation of DOT requirements before he could prevail. We believe that this would be an impossible burden to sustain and a radical, unnecessary and undesirable change in the law.

The general rule at present is, as stated in § 288 (c) of the Restatement of Torts, 2nd ed., that:

"Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precaution."

This does not mean, however, that a showing of compliance with our requirements would not serve a useful purpose. In many jurisdictions, such a showing would relieve a defendant of a charge of negligence per se for violation of a rule or regulation of the Government. In Lozano v. Pacific Gas & Electric Co., 70 Cal. App. 2d 415, 161 P.2d 74 (1945) the plaintiff was suing an electrical utility for personal injuries alleged to have been caused by the negligence of the utility in failing to insulate electric lines properly and in failing to maintain them at a reasonably safe height above the ground. In defense to the charges the utility

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