Common carriage and liability in the rail transportation of toxic inhalation hazard materials.

• Author: Foland, Stephen J.

INTRODUCTION

On November 4, 2000, a Burlington Northern & Santa Fe Railway freight train traveling down the North Platte River Valley in western Nebraska derailed as it passed through the town of Scottsbluff. (1) The hulls of three of the train's tank cars ruptured, releasing a vapor plume of benzene and other toxic chemicals into the town, resulting in the evacuation of some 3750 local residents. (2) Fourteen months later, on January 18, 2002, a freight train of the Canadian Pacific Railway derailed near Minot, North Dakota. (3) Eleven damaged tank cars released more than 220,000 gallons of anhydrous ammonia vapor, leading to one death and numerous claims for personal injury and property damage. (4) Then, on January 6, 2005, a collision on the Norfolk Southern Railway in Graniteville, South Carolina, ruptured a parked tank car and released a plume of chlorine gas, killing nine people and sending more than five hundred others to the hospital. (5)

In most cases, a freight train wreck presents no particular danger to the general public. Commodities like coal, grain, and automotive parts, while valuable, do not present the citizens of a nearby town with the danger of illness or death; but commodities like anhydrous ammonia, benzene, and chlorine--known collectively as toxic inhalation hazard ("TIH") or poison inhalation hazard materials--present that very danger. Where that danger leads, the problem of liability in the event of an accident follows. Who should pay the freight, so to speak, to plaintiffs injured in a railroad accident involving the release of TIH materials? In a case where a railroad's negligence caused the release, the answer may seem to be simple enough: sue the railroad. However, it may be that a particular accident was not the result of a carrier's negligence, but rather the negligence of another party in producing the cargo, negligence in maintaining privately owned rolling stock, (6) or even no negligence at all. In addition, even if a particular accident is the result of a carrier's negligence, the injuries resulting from the accident will not be entirely the carrier's fault. What then?

As Judge Richard Posner pointed out in his opinion in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., it is a simple truism that anything--such as the release of hazardous materials from a rail car without any negligence on the railroad's part--can happen. (7) But rather than existing simply as improbable scenarios conceived in the minds of torts professors, such accidents have actuary occurred, (8) leaving various courts to answer the question, "What then?" Some of these courts have held that, in light of their obligation as common carriers to move any and all freight handed to them for shipment, rail carriers should be immune from liability. (9) Other courts have imposed strict liability on rail carriers for accidents, openly acknowledging the carriers were not negligent, but holding nonetheless that the rail transportation of hazardous materials was precisely the type of ultrahazardous activity strict liability theories were developed to address. (10) Still others have avoided answering the question altogether. (11) Regardless of the answers they have given, however, these courts have all framed the question in terms of strict liability and whether or not a rail carrier's obligations as a common carrier exempt it from such liability.

These courts have taken the wrong approach. The courts taking the right approach cannot frankly admit a defendant rail carrier was not negligent (12) and fail to account for the unique characteristics of TIH materials--as opposed to the characteristics of explosive or inflammable materials--which render strict liability theories ineffective in fairly determining liability for a TIH accident. The combination of rail carriers' obligation to move TIH materials and the unique dangers these materials present creates a distinct problem, calling for an approach diverging from that historically taken in assessing rail carrier liability for hazardous materials accidents.

Discerning the right approach requires an answer to two questions: First, are rail carriers actually obligated to move TIH materials? Second, if such an obligation exists, should a rail carrier be fully liable for the TIH accidents that will occur in executing it? The answer to the first question is "Yes"; the answer to the second, though perhaps not as clear, is "No." Part I of this Note provides background on TIH materials, the common carrier obligation, and the unique problem their combination creates. Part II reviews the approach courts have taken toward rail carrier liability in hazardous materials accidents by examining, in detail, the leading cases in the field. Part III offers some thoughts as to how these precedents are detached from industry realities, considering the nature of TIH materials. Finally, Part W offers some thoughts as to the route the approach to rail carrier liability in TIH accidents should follow.

1. BACKGROUND

   1. The Shipment of TIH Materials

      The shipment of TIH freight, as well as other hazardous materials, is an everyday event. Some 800,000 shipments of hazardous materials move in the United States each day for an annual total exceeding four billion tons. (13) Most of these shipments move by road or by waterway, (14) yet many of the most hazardous of these shipments move by rail. (15) American railroads move between 1.5 and 1.6 million carloads of hazardous materials each year, (16) some 100,000 of which consist of TIH materials. (17) Of all commodities shipped by rail in this country, these TIH shipments are the most likely to inflict massive casualties in the event of an accident. (18)

      Despite their usefulness, TIH materials have special characteristics that make them exceptionally dangerous in the event of an accidental release. (19) TIH materials are gases at room temperature, (20) meaning that when their containers are breached, they can spread as far as the wind may carry them. Some have a mass greater than that of air, allowing them to sink into recessed or low-lying areas. (21) Some TIH materials are also inflammable (22) and may cause permanent injury or death, even at relatively low atmospheric concentrations. (23) These characteristics mean that, no matter the degree to which a rail carrier may or may not be responsible for a release, once a release has occurred, the potential for harm from that point forward is beyond the carrier's power to control. But given their wide variety of uses and their importance to modern industry, not moving TIH materials is not realistic. Industry and regulatory authorities alike believe that transportation by rail is the safest method of moving TIH materials from one place to another; (24) this is a question of risk. However, whether railroads are actually required to move these materials is essentially a question of law.

   2. The Common Carrier Obligation

      Although most rail carriers in the United States are for-profit corporations moving freight to make money, the principal reason they move TIH materials is their obligation to do so. The risk associated with the transportation of TIH materials is such that, given the option, rail companies would not move them. (25) Instead, the rail transport of TIH materials stems from the common carrier rule, a doctrine binding firms that transport persons or property for hire. (26) Common carriers have special duties not applicable to most other business firms, including the provision of carriage to all parties who request it, provision of that carriage at a reasonable rate, a duty to insure the shipper against the loss of his goods, (27) and an elevated duty of care toward the public. (28)

      The ultimate origin of the concept of common carriage is lost in the distant past. The Code of Hammurabi, for instance, required men licensed for carriage to make reparations to shippers for failure to deliver goods entrusted to their care. (29) In the common law tradition, the basic principles of common carriage were established "long before the advent of railroads," (30) even if not necessarily from time immemorial. Many of the rules and practices governing common carriage were developed in the Court of Admiralty and applied to merchant mariners in the sixteenth century; they were then adopted by common law courts and applied to land carriers in the seventeenth century. (31)

      Modern American courts define a common carrier as "one who holds himself out to the public as engaged in the business of transportation of persons or property from place to place for compensation, offering his services to the public generally." (32) Railroads" status as common carriers was assumed from the industry's earliest years in the United States. For example, the 1855 Michigan General Railroad Act declared that any railroad receiving freight from a shipper held the same rights and liabilities as other common carriers, an 1857 ruling of the Illinois Supreme Court held that rail carriers' status as common carriers "cannot be disputed," and several state constitutions incorporated language to the same effect. (33) Following the Civil War, various U.S. Supreme Court opinions helped cement the rule that most rail carriers are common carriers. (34) This rule and its attendant duties have endured to the present day.

      These duties have not been frequently challenged in court. The challenges presented have been defeated. For example, in the 1970s, several railroad companies in the eastern United States pushed to have the traditional common carrier rules--specifically the provision of carriage for all parties requesting it--suspended when the cargo involved was spent nuclear reactor fuel. (35) In a process known as "flagging out," these carriers failed to publish their tariffs for spent nuclear fuel in an attempt to dodge their obligation to ship it. (36) An order from the Interstate Commerce Commission ("ICC") to publish the...