As exemplified by Yogi Berra, the continuing incidence of vehicles violating grade crossings and causing accidents has been easily explained over the years by DOT, FHA, FRA and trucking/bus firms as “we made too many mistakes.”
The news on July 26, 2019 of the derailment at speed of Amtrak 393 at University Park, Ill., due to a careless truck driver created a PTSD-like reaction for me. Instantaneously, I thought back to the derailment of Amtrak 59 at Bourbonnais, Ill., the night of March 15, 1999. Despite denials, this wreck was due to the overt negligence of a driver attempting to beat the working grade crossing protection with a truck loaded with 22 tons of steel pipe. Regrettably, the driver’s reckless behavior resulted in 11 people killed, and much equipment destroyed in the ensuing fire.
From my perspective, nothing has changed since that horrible March night more than 20 years ago. Indeed, in just the past two months since the grade crossing incursion against Amtrak at University Park, the railroad industry has experienced approximately 20 further violations of grade crossings by trucks and autos causing deaths, injuries and property damage to freight, Amtrak and Virgin USA equipment. Amtrak’s self-insurance continues to fund, when feasible, equipment repairs and liabilities for passenger injuries. Apparently, Amtrak must also self-fund the cost of business interruption of the train involved and possible cancellation of other trains due to damaged infrastructure. Also, Amtrak funds the costs for replacement bus transportation, hotels and meals for its displaced passengers. As well, the Class I on whose infrastructure Amtrak is a tenant also pays to repair its infrastructure.
In respect to the plethora of trucks violating grade crossings and the general apathy of the mainstream media, which continues to incorrectly report how ,a train hit a truck,” as if the train jumped the tracks, it is high time for the railroad industry to take on this issue, as the timeliness could not be better, given how Congress is now reviewing additional legislation for the truck industry.
The railroad industry needs to acknowledge how the standard for safe truck driving has been set, and maintained, by the large national truck firms, such as J.B. Hunt and Schneider, where they apparently have created a no-nonsense work environment to control and monitor their drivers, including respecting requisite rest periods and maximum driving time. However, the smaller truck firms and individual truck operators can no longer be tolerated to continue to incomprehensibly act so willfully negligent by violating federal and state highway and safety laws that directly threaten rail crews and passengers, causing significant property damage as well as needless deaths and injuries.
As Mark Twain came to understand that “no amount of evidence will ever persuade an idiot,” action must be taken in response to these grade crossing incursions in the same vein as we learned how with e punitive DUI laws, but also with federal oversight and empowerment to ensure a national record and full prosecution.
At this point, other than implementing a strict DUI-type policy, there is nothing else we can do to prevent the careless incursion of farm vehicles crossing a private rail right-of-way that distorted the track alignment, causing derailment of Amtrak 4 in Kansas in 2015; the numerous interference of rail services along the CSX between Richmond-Miami/Tampa due to private autos and trucks simply ignoring warning lights, gates, bells and train horns; or, the farm truck violating the right-of-way in 2015 near Oxnard, Calif., derailing a Metrolink train and killing the engineer. Accordingly, railroad crew and passenger deaths and injuries should be governed by the strictest version of current DUI laws
Although the fight is far from over to prevent heavier and longer LCVs (long-combination vehicles) on our highways, the railroad industry must now kick its chairs back in the corporate offices and declare it is “mad as hell and not going to take it anymore.” This is a unique opportunity for freight railroads, Amtrak, commuter railroads, other intercity passenger rail carriers and labor to work together under the auspices of the principal industry groups, the Association of American Railroads and the American Short Line and Regional Railroad Association, to establish a high-level decision-making task force in coordination with the FRA and STB to expeditiously petition the appropriate House and Senate committees to create legislation now frankly predicated upon a vivisection of the known issues and expected results.
As railroads represent interstate commerce, Congress is the appropriate legislative body at the federal level to implement the desired legislation to explicitly state:
It shall be the intent of this bill to treat the rise in vehicular (auto, truck, bus) willful violation of railroad grade crossings protected by gates, flashing lights and bells; or by train horns and flashing locomotive ditch lights, as the country previously dealt with the unacceptable rise in DUI accidents, and the carnage caused by such reckless behavior.
If the driver of the auto/truck/bus survives violating the grade crossing warnings and gets hit by the train, the driver will automatically lose his or her license for 12 months, the driver’s vehicle insurance cost shall increase 50%. If this reckless behavior contributes to deaths and/or injuries, the culpable driver will serve a minimum of one year in a federal penitentiary.
If such an incident at a grade crossing is repeated, the driver will automatically and permanently lose his or her driving license. If a driver is caught driving without a license, or repeating yet again another case of contributory negligence by incursion into a grade crossing, the driver is automatically sentenced to federal prison for no less than three years, loses his or driving license and is disqualified for insurance coverage.
Clearly, negligent commercial vehicle drivers are not to be re-hired, or hired by another trucking/bus firm. Ideally, all truck/bus firms shall utilize the hair test during recruitment, and on an at-random basis on drivers, to identify potential drug or alcohol problems, in order to intervene in a preemptive manner, including for sleep apnea.
As railroad infrastructure does not cause a train to jump its tracks and strike a vehicle on the road, it shall be deemed that all liability shall be exclusively upon the auto/truck driver and his or her insurance. To “tune-up” to the seriousness of this issue, all truck/bus firms less in size than national shall be required to carry the appropriate level of insurance for intra-state and interstate commerce to cover the following liabilities:
1) Property Damage/Repairs for the railroad and owner of infrastructure. This is to be in lieu of self-insurance or deductions borne by the rail operator.
2) Comprehensive Health Care, Treatment, Pharmaceuticals, DME and Rehabilitation payment for injured train crews. The intent is to avoid for the injured party all costs related to deductions, out-of-pocket, out-of-network, transportation for family member to an out-of-area hospital, and air ambulance returning to their hometown.
3) Comprehensive Death Benefits will require, with identification by age and family status, fully covering survivors of the deceased, e.g., mortgage, college, earning potential, etc.
4) Business Interruption in order to avoid cost of self-insurance or deductions. Freight railroad to be reimbursed for all costs incurred due to business interruption of its services in either direction due to negligence of the driver that disrupts the operation and causes damage to infrastructure. Passenger carriers to be reimbursed for all costs incurred due to business interruption as defined above, including cancellation of trains in either direction for the period infrastructure is under repair; as well, substitute transportation, food, hotel, alternate transport, etc.
These costs shall be paid in full upon receipt by the insurance of the auto/truck/bus driver, with the balance paid by the driver or liens on their property; or, by the trucking/bus firm or its insurance. If the truck/bus firm is involved in another such grade crossing accident within 12 consecutive months from the time of the initial encroachment upon the grade crossing, the U.S. DOT will penalize the trucking/bus firm with a significant step system of fines appropriate to the accident, and place its commercial license on probation. As well, DOT shall directly notify the carrier’s insurance to ensure the policy going forward is covered by a higher, punitive cost, with the possibility of being cancelled.
In essence, there can no longer be any deference to such rogue drivers and the accidents and bodily harm caused due to exhaustion/fatigue or making time; violating mandatory and documented rest periods and maximum hours allowed to drive; or induced by marijuana, drugs or alcohol.
U.S. DOT, in conjunction with FRA, shall compile and maintain an updated complete computer database accessible to state licensing agencies of truck/bus firms and drivers, as well as insurance firms, to list by state indicating:
- Destruction of freight rail infrastructure/service involved; passenger service involved; location.
- Truck/bus firm, truck/bus driver or auto driver by name, home address, state and driver license number.
- Estimated property damage; cost of business interruption; number of injuries and health care costs.
- List deaths by number on the train, auto/truck/bus.
- Indicate if first such negligent act by driver and/or firm; or, reference prior such incidents and driver(s).
This request for immediate legislative action is in reaction to how the trucking/bus industry has refused to police its own members;, and how the trucking industry obviously enjoys the contribution of PACs to manipulate or defer public policy. There is an immediate need for U.S. DOT and FRA to follow through on implementing the intent of this legislation. We need to dis-incentivize the cavalier, circus atmosphere of truck/bus drivers playing chicken with trains. We need to stop the injuries and deaths inflicted upon railroad crews and passengers by placing the onus of guilt, and the accumulation of associated costs, where it belongs—on drivers and trucking/bus companies.
M. E. Singer is an observer and commentator on the passenger rail industry, identifying shortfalls and growth opportunities. He is currently Principal at Marketing Rail Ltd. in Chicago, a consultancy to achieve passenger rail customer experience and product branding. Singer has prior corporate experience in turnaround operations management, marketing, and mergers and acquisitions in the health care field.