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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 8 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(6)

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 g 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

claimed that it had complied with certain State requirements and, therefore, could not be found to have been negligent. In rejecting the claim of the utility the Court stated at page 424 as follows:

"Evidence was offered by appellant to negative this rule by showing that it had substantially complied with the General Orders of the Railroad Commission, and from this premise it is now argued that due care on the part of the company was thus established. At most, such a showing would only relieve the company of the charge of negligence per se. It does not affect the question of negligence due to the acts or omissions of the company as related to the particular circumstances of the case. The rule has been stated thus:

"'It does not follow that merely because one has complied with the terms of a statute or ordinance that he is thereby absolved from negligence. One may act in strict conformity with the terms of an enactment and yet not exercise the amount of care which is required under the circumstances.' (Citing cases)

“In other words, the question is whether under all the circumstances negligence has been shown."

(See also United States v. Marshal, 230 Fed. 2d 183 (9th Cir.-1956); Nevis v. Pacific Gas & Electric Co., 43 Cal. 2d 626, 275 P. 2d 43 (1943); Prosser, Torts (Third Ed.) Page 205).

The fact that a defendant could show DOT inspection and approval would not, we think, make a difference. In Kamienski v. Bluebird Air Service, 321 Ill. App. 340, 53 NE 2d 131 (1944) involving a suit against an airline by passengers for personal injuries suffered in a crash, the defendant tried to show that the engine had been inspected and approved by the Government. On this point, the Court stated at page 134 :

"Common carriers, especially these transporting people through the air, cannot rely upon government inspection for fulfillment of their duty." Scope of the Exception

The exception provides that nothing in the Act will affect the liability of covered persons:

"Except to the extent that the action creating the liability was specifically compelled by any such standard, rule or regulation.'

The scope of the exception is difficult to evaluate prospectively. In air traffic control situations, specific acts are constantly being directed by controllers. No similar situations, in which DOT employees would direct specific acts for railroad safety purposes, are expected to arise. If the performance of such acts (without negligence) would subject the persons performing them to some liability, the fact that they were specifically required by DOT rules or regulations would exempt the persons doing them from liability. We believe this exemption to be appropriate. Persons should not be subject to liability for the performance of acts specifically directed by the Government.

Liability of the Government Under $ 5(0) of H.R. 16980 and the Extent to Which Such Liability May Preempt Liability on the Part of Carriers.

The Government enjoys sovereign immunity from suit except to the extent that Congress has authorized suit under the Federal Tort Claims Act (set out in various parts of Title 28 of the United States Code). The Act permits suits for negligence of employees in the ordinary operations of Government business ; for example, driving automobiles. It does not, however, permit suits against the Government based on actions involving the so-called "discretionary function or duty." Subsection (a) of section 2680 of Title 28 expressly provides that the benefits of the Tort Claims Act shall not apply to:

"Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not the discretion involved be abused.”

The Department addressed itself to the scope of the discretionary exemption in a letter, dated March 18, 1968, to Representative MacDonald, Chairman of the Subcommittee on Communications and Power, in connection with the Government's possible liability under S. 1166, the proposed "Natural Gas Pipeline Safety Act of 1968.” Representative MacDonald had requested that we review a Memorandum of Law which had been submitted to him and which discussed the possibility of Government liability in connection with the enforcement of the proposed law.

In our letter of March 18, 1968, we stated that:

"Under the statutory exceptions to Federal Government liability set forth in 28 C.S.C. 2680, it is the opinion of this Department that determinations and inspections under the authority of S. 1166 will not give rise to a cause of action which would lead to a holding of liability against the United States."

We further stated:

"We specifically rely on the "discretionary function or duty" exception stated in 28 U.S.C. 2680(a) and discussed in the Memorandum of Law in some detail (pages 10-21). While it must be conceded that no one can predict with certainty what the courts will hold with respect to this issue, our analysis leads us to the conclusion that the above stated exception as interpreted in a long line of Federal cases, including the leading case of Dalehite v. United States, is applicable to activities to be conducted by this Department under the proposed law.

Proceeding further on this issue, the Court in Weinstein v. United States, 244 F. 2d 68 (1957) referred to the legislative history of the Federal Tort Claims Act and pointed out that the discretionary exception was designed to preclude ... application of the act to a claim against a regulatory agency. . . . Since the language used . . . exempts from the act claims against federal agencies growing out of their regulatory activities it is not necessary expressly to except such agencies . . . by name, (Memorandum for the Use of the Committee on the Judiciary, H. of Rep., 77th Cong., 2d Sess., Explanatory of Committee Print of H.R. 5373 (Jan. 1942), p. 8). Citing the Dalehite case among others the Circuit Court stated : 'It is well settled that 'discretionary function' embraces regulation.' Again in a later case, the U.S. Court of Appeals for the Second Circuit in Blaber v. United States, 332 F. 2d 629 (1964), in upholding the discretionary function exception, relied upon the Dalehite case pointing out that the Supreme Court considered the scope of 28 U.S.C. 1680(a) and had characterized the section as follows: 'Where there is room for policy, judgment, and decision there is descretion.' As stated above we believe that any actions authorized by S. 1166 will fall within the discretionary function exception."

And:

“We have additionally examined this question in the light of your reference to cases in the field of aviation related to the actions of Federal air traffic controllers. Recent cases have tended to hold the Government liable for the negligence of its air traffic controllers under certain circumstances. In Ingham v. Eastern Air Line Inc., 373 F. 2d 241 (1967), the court rejected the 'discretionary function' exception as an argument against imposing tort liability and stated:

Where the government decided to establish and operate an air traffic control system, that decision was the exercise of discretion' at the planning level, and could not serve as the basis of liability. See Dalehite v. United States. But once having made that decision, the government's employees were required thereafter to act in a reasonable manner. À failure to do so rendered the government liable for the omission or commission. Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955).

In this case the air traffic controller violated a section of the FAA's Air Traffic Control Procedures Manual which required 'weather conditions and subsequent changes as necessary' to be reported to an approaching plane. The failure in this instance was found to be the cause of a crash.

This same court also rejected the 'negligent misrepresentation’ argument and said that:

Where the gravamen of the complaint is the negligent performance of operational tasks, rather than misrepresentation, the government may not rely on $ 2690(h) to absolve itself of liabiilty.

However, whatever the liability for negligence of air traffic controllers may be, we do not believe that the rationale underlying it would be applicable to the activities of this Department under S. 1166. Our inspectors would not act in the role of issuing day-to-day orders regarding the direction or flow of traffic through pipelines nor would they be responsible for such operations. Accordingly, we consider that they would not be performing operational tasks' so as to impose liability on the Government as in some of the recent air traffic controller decisions. We cannot, of course, state positively that under a given set of circumstances a court would not hold that proximate cause of injury or damage was in fact due to the negligence of a DOT employee. To this extent we agree with the writer of the Memorandum of Law to the effect that in an appropriate case the Government may be liable, but as a general rule, it is considered that the activities of inspectors will probably be such that the discretionary function exception under the Federal Tort Claims Act will effectively prevent any claim of liability against the United States."

95-388-684-3

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