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Mr. BROTZMAN. Does that differ from the provisions of this bill ! Mr. LANG. Yes, sir.

Mr. BROTZMAN. He would come up here and answer questions relative to these particular provisions; right?

Mr. LANG. I think he would be glad to do so.

Mr. BROTZMAN. Back to this section 5, and I am trying to read this as carefully as I can to make sense.

Now, once again, section 5(b), is this to relieve a common law responsibility for negligence or is it to abrogate contributory negligence, or what is the purpose of that 5(b) provision?

Mr. Lang. If I understand this language, it is not to relieve a person of that liability.

Mr. BROTZMAN. What is the purpose ?

Mr. Lang. It is to assure that in fact that liability is a continuing one.

Mr. BROTZMAN. Does it change the common law in any way? Is it to change the common law in any way?

Mr. LANG. I would have to refer that to Mr. Corcoran.
Mr. CORCORAN, No; it does not, Mr. Brotzman.
Mr. BROTZMAN. That is the intent, not to change the common law?
Mr. CORCORAN. Yes.
Mr. Watson. Will the gentleman yield?
Mr. BROTZMAN. Yes.

Mr. WATSON. "Except to the extent that the action creating the liability was specifically compelled by any such standard, rule, or regulation," as I interpret that, as a country lawyer, you do propose to exempt them.

Mr. BROTZMAN. This is the way I read it, too, but I would like to have counsel's explanation. You see, one of the problems is we will talk to you here this morning and then if you pass away or you are gone and we cannot-I strike “pass away," if that disturbs you, Mr. Corcoran.

Mr. CORCORAN. Thank you.
Mr. BROTZMAN. I saw the look on your face.

If you are not available to us and we don't get the answers to these questions now, then we never have the opportunity to cross-examine you, you see. This is one of the continuing problems we have.

Now, I read it the same way that he does.
Mr. SPRINGER. Will the gentleman yield?
Mr. BROTZMAN. Yes.
Mr. SPRINGER. I have a second round of questions.

I want the gentleman to come back tomorrow. I want to ask some more questions. I hardly got started with 5 minutes today. I stayed out but I have a series of questions.

Mr. Chairman, I am willing to wind up today as far as these people are concerned but I would like to ask the gentleman some more questions.

Mr. BROTZMAN. I yielded to my distingished colleague here who had a specific question relative to a clause.

I think if you will answer the questions yes or no and then explain your answer, we would all understand you much better. Why don't you respond to his question?

Mr. Watson. Maybe counsel can respond better than Mr. Lang.
Mr. CORCORAN. Would you repeat the question?

Mr. Watson. On page 5, line 22 of the bill, start with line 20 so that we get it in its complete context.

Compliance with any standard, rule, or regulation established under this Act does not exempt any person from any liability which would otherwise accrue.

I agree with that, the interpretation there does not exempt the common law liability.

But you have this: Except to the extent that the action creating the liability was specifically compelled by any such standard, rule, or regulation.

I assume if you are going to follow through with this, you are going to promulgate standards, rules and regulations and you are going to expect the railroad to comply with them regardless of your expense.

Now give us your interpretation of that last clause. Is my interpretation not right?

Mr. CORCORAN. Congressman, this particular language was at the specific recommendation of the Department of Justice and I think in our presentation for the record in writing we will attempt to show you that there are certain sections of the law which not only provide liability but exclude defenses such as assumption of risk and contributory negligence as defenses to a carrier in such actions.

So in a sense when we are talking about, for instance, under our Safety Appliance Act right now, the violation of a Safety Appliance Act takes away from the carrier certain defenses which it might otherwise have. We will attempt to show in our written presentation that these two sections in that sentence together preserve for the employees, if you will, the rights that they now have by common law and by FELA and also protect the carrier. We do not want to change in any way the present relationship, statutory or common law, on damage suits between carriers and employees.

Mr. KORNEGAY. Will the gentleman yield?
Mr. Watson. Yes.

Mr. KORNEGAY. I would like to ask the question of counsel. Does this exception under the section that we are talking about defer liability from the Secretary or the Federal Government in any way if the accident occurred as a result of this rule or regulation promulgated ?

Mr. CORCORAN. Congressman Satterfield asked that question and we will also provide an answer to that for the record.

Mr. BROTZMAN. I am just about through.

Will you have that for us when you return, I guess tomorrow, so that we can ask you some questions about this particular matter?

I am just about through, Mr. Chairman.

I didn't hear you justify the $5 million figure that you are asking us to vote in the way of an authorization for fiscal year 1969, and $6 million for the following fiscal year as provided therein. Can you just sum up for me how you arrived at the $5 million figure?

Mr. LANG. Mr. Brotzman, we did not arrive at the figure. The bill as we sent it up had no figure in it.

Mr. BROTZMAN. The bill as you sent it up had no figure in it, meaning we have put that figure in the bill?

Mr. Lang. Yes, sir.

The CHAIRMAN. I might explain this as the chairman. I made the statement to Assistant Secretary Sweeney that under Public Law 84 801 that requires every new program to carry with it a specific authorization for every new program. So we went back to him and he supplied these figures which I put in the bill. It was then introduced by me.

Mr. Lang. I stand corrected then, Mr. Brotzman.
Mr. BROTZMAN. This is the kind of thing I keep going through here.
All we are trying to do is to understand the bill to try to make reason-
able judgments.

The CHAIRMAN. Your time has expired.
Mr. Brown.

Mr. Brown. Mr. Brotzman has asked a couple questions that I wanted to get into on this $5 or $6 million figure.

Do I understand, Mr. Lang, that you have no figure on the cost to the Department of Transportation of this legislation and no estimate of what this will cost the railroads and therefore the public ultimately?

Mr. LANG. We have no firm figures on the cost to us although as I indicated when I answered Mr. Springer's earlier question, having misunderstood it, we do not anticipate that there would be any large increase in the cost of operating our Bureau of Railroad Safety program over that which we have today,

Now as far as the second question is concerned, that was also a question asked by Mr. Springer.

Mr. Brown. I was here when Mr. Springer asked the question. I just want you to say yes or no, you know or you don't know how much it is going to cost.

Mr. LANG. I do not know.
Mr. Brown. And there is nothing in the budget for it?
Mr. Lang. That is correct, sir, there is nothing in the budget.

Mr. Brown. And you have no justification for the $5 or $6 million
figure?
Mr. LANG. We have not furnished such.
Mr. Brown. That is exactly what I wanted to know.
Mr. SPRINGER. Will the gentleman yield?
Mr. BROWN. Yes.

Mr. SPRINGER. The part that mystifies me is that you set standards for requirements of rail facilities and all equipment which I take it would go to the whole matter of design.

Now it seems to me that if you are going to go into this thing that you are going to OK certain construction of cars, that you are going to set up standards which are going to change a lot of other things, it is the same thing you ran into in the automobile bill. Of course you will go into the whole question of construction, and this is what bothers me on this question of whether or not you are going to substantially increase rail cost.

From the testimony you have given, I take it you think a great deal of equipment is outmoded. That is why I hope if you come back tomorrow you will tell us what this is going to cost the rail industry which it ultimately is going to cost the public.

Thank you.

Mr. Brown. I have a couple of other questions. If this bill should be passed in its present form, does the Department of Transportation an

ticipate the licensing of railroad employees in the same manner they are licensed in the aviation industry?

Mr. LANG. We anticipate that this might be desirable for selected classes of employees and selected kinds of work.

Mr. Brown. What kinds of employees do you have in mind-engineers, brakemen, and inspectors of rights-of-way?

Mr. LANG, All of those. Those are precisely the categories in which this might prove to be desirable.

Mr. Brown. Porters?
Mr. LANG. No, sir; I cannot imagine that.
Mr. BROWN. Inspectors of equipment?
Mr. Lang. Very definitely.

Mr. Brown. If this bill is passed, these people would be under some Federal licensing?

Mr. LANG. No, sir; that does not necessarily follow. If in our study of these matters and as a result of rulemaking procedures it developed that it was desirable to issue certificates to certain classes of employees, then we might. And these would be the prime possibilties in that regard, the ones you mentioned.

Mr. Brown. Would you set the standards? Would the Federal Government actually participate as a third party with the railroad management and the railroad unions at labor negotiations? Mr. LANG. Absolutely not.

Mr. Brown. But you would have the right to approve the safety provisions of the employment contract labor and management agree to at bargaining:

Mr. LANG. I don't think to say we would have the right to approve it is the right way to state the matter,

Mr. Brown. But, according to your previous testimony, you could prohibit an employee from performing his work if he did not meet the standards that the Department of Transportation set under section 3(a) (3) ?

Mr. LANG. That is correct.

Mr. Brown. Well, does that not mean in effect that you would have the right to approve the contract negotiated between labor and management with reference to the safety standards that were included in that contract?

Mr. Lang. No, sir; I don't think it means that at all. It does mean that the carriers and their employees could not agree to qualifications that were less stringent than any that had been established by regulation.

Mr. Brown. So, in effect, you would have a veto on the contractnot the authority to approve, but the right to veto if you say the contract does not meet the safety standards established by the Federal Government.

Mr. LANG. If you want to call this in effect a veto, you can do so. All it means is that the carriers and their employees could not agree to a man performing a particular class of work if he did not meet the qualifications that have been established.

Mr. Brown. To my way of thinking, that is a veto of the negotiated contract.

I have just one other point, Mr. Chairman, because it relates to the penalties that you set in this regulation and those set in the pipeline safety regulation.

Do I understand that the railroad could be assessed up to $10,000 for failure to comply with any of the standards that you set?

Mr. Lang. For knowing and willful violation.

Mr. Brown. And in the pipeline safety bill the proposal was $400,000, was it not?

Mr. Lang. I do not recall the figure but it was a very high number.

Mr. Brown. I think it was and I would like to ask for your rationale of the difference.

Mr. Lang. I think the types of violations which we anticipate, using these types of penalties in connection therewith, are considerably less serious by and large in terms of their implications for life and limb of large numbers of people than those which might result from the failure in the gas pipeline.

Mr. Brown. Are you familiar with the statistical background of accidents in the pipeline area as compared to the accidents you have cited in the railroad area?

Mr. LANG. I cannot claim to be.
Mr. BROWN. I wonder if the Secretary is?

The CHAIRMAN. This will conclude our hearings for today. If you would stand by, tomorrow we will have other witnesses. I would expect to have you and Mr. Boyd back at some later date and we will let you know at the time when we can have you back.

With regard to the answers to the questions that have been posed, if you can get those answers for us.

Tomorrow we have other scheduled witnesses and we will keep our schedule as we have set it up.

Mr. Brown. Mr. Chairman, may I ask if it is anticipated that the Secretary will testify on this legislation ?

The CHAIRMAN. To the best of my knowledge. If it is possible, we will have this gentleman back, Mr. Lang. I am sure it will be possible for Mr. Boyd to be here.

The committee will stand adjourned until tomorrow morning at 10 o'clock.

(Whereupon, at 12:22 p.m., the committee adjourned, to reconvene at 10 a.m., Wednesday, May 22, 1968.)

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